ML24323A187
| ML24323A187 | |
| Person / Time | |
|---|---|
| Site: | Oconee  |
| Issue date: | 10/22/2021 |
| From: | Bessette P, Lighty R Duke Energy Carolinas, Duke Energy Corp, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| Shared Package | |
| ML24323A189 | List: |
| References | |
| 50-269-SLR, 50-270-SLR, 50-287-SLR, ASLBP 22-973-01-SLR-BD01, RAS 56279 | |
| Download: ML24323A187 (44) | |
Text
This document is a publicly available redacted version. The original file is non-public, designated as Critical Energy/Electric Infrastructure Information (CEII) in ADAMS a.
This document contains a single redaction on page 14, which was approved by the Federal Energy Regulatory Commission (FERC) on August 13, 2024 (ML24324A040). To maintain consistency with similar FERC-approved documents issued on November 20, 2024 (ML24326A159), NRC staff also redacted the unit of measure associated with the redaction on page 14.
NRC staff actions were taken in accordance with:
- The Memorandum of Understanding Between the NRC and FERC Regarding Treatment of Critical Energy/Electric Infrastructure Information found at: https://
www.nrc.gov/reading-rm/doc-collections/memo-understanding/2024/index.html.
- The FERC definition of CEII found at: https://www.ferc.gov/ceii, and, https://
www.ferc.gov/enforcement-legal/ceii/designation-incoming-dam-safety-documents.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
DUKE ENERGY CAROLINAS, LLC (Oconee Nuclear Station, Units 1, 2 and 3)
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Docket Nos. 50-269-SLR 50-270-SLR and 50-287-SLR October 22, 2021 APPLICANTS ANSWER OPPOSING REQUEST FOR HEARING, PETITION TO INTERVENE, AND PETITION FOR WAIVER SUBMITTED BY BEYOND NUCLEAR AND SIERRA CLUB Tracey M. LeRoy, Esq.
DUKE ENERGY CORPORATION Paul M. Bessette, Esq.
Ryan K. Lighty, Esq.
MORGAN, LEWIS & BOCKIUS LLP Counsel for Duke Energy Carolinas, LLC
ii TABLE OF CONTENTS I.
INTRODUCTION............................................................................................................. 1 II.
BACKGROUND............................................................................................................... 4 A.
Procedural History................................................................................................. 4 B.
SLR Environmental Review Under 10 C.F.R. Part 51.......................................... 5 1.
General SLR Environmental Review Framework..................................... 5 2.
GEIS Consideration of Severe Accidents.................................................. 6 3.
ER Consideration of Severe Accidents...................................................... 9 C.
Brief History of CLB Flooding Matters Governed by 10 C.F.R. Part 50 at Oconee from 2008 to Present............................................................................... 10 D.
Significant Factual Errors, Omissions, and Mischaracterizations in the Mitman Declaration and the Petition................................................................... 13 1.
Ongoing Regulatory Effect of the 2011 NRC Evaluation....................... 14 2.
Probabilistic Flooding Discussion........................................................... 16 3.
Consideration of Seismic and Overtopping Events................................. 18 III.
THE BOARD SHOULD DENY THE WAIVER REQUEST BECAUSE IT FAILS TO SATISFY THE COMMISSIONS WAIVER STANDARD........................ 19 A.
Legal Standard for Waivers................................................................................. 20 B.
Petitioners Fail to Identify Any Special Circumstances Specific to Oconee That Justify a Waiver (Millstone Elements 2 and 3).............................. 22 C.
Petitioners Fail to Identify Any Regulation That, If Applied Here, Would Defeat the Commissions Purpose For Enacting It (Millstone Element 1).......... 23 D.
Petitioners Fail to Identify a Significant Environmental Problem (Millstone Element 4).......................................................................................... 25 IV.
THE BOARD SHOULD DENY THE HEARING REQUEST BECAUSE IT DOES NOT PROPOSE AN ADMISSIBLE CONTENTION......................................... 26 A.
Legal Requirements for Hearing Requests and Petitions to Intervene................ 26 B.
Proposed Contention 1 (Applicability of § 51.53(c)(3) to SLR) Is Inadmissible......................................................................................................... 29 C.
Proposed Contention 2 (Severe Accident Impacts NSI) Is Inadmissible............ 31 1.
Petitioners Fail to Plead the Prima Facie Elements for a Challenge Regarding New and Significant Information....................................... 32 2.
Petitioners Claims Regarding Unspecified Duke Risk Analyses Lack the Requisite Specificity for an Admissible Contention................. 33
iii 3.
Neither the 2010 Licensee Evaluation Nor the 2011 NRC Evaluation Satisfies the Definition of New and Significant Information............................................................................................. 34 D.
Proposed Contention 3 (SAMA NSI) Is Inadmissible......................................... 37 1.
Proposed Contention 3 Is Inadmissible for the Same Reasons That Proposed Contention 2 Is Inadmissible.................................................... 38 2.
Petitioners Unsupported Assertion that the 2011 NRC Evaluation Requires Actions and Establishes New SAMAs Is Factually and Legally Unsupported and Incorrect................................................... 38 3.
Petitioners Offer No Explanation as to Why or How the Mitigative Measures Briefly Mentioned in the Petition and Mitman Declaration Somehow Qualify as NSI Under the Applicable Standards in NEI 17-04, Rev. 1............................................. 39 V.
CONCLUSION................................................................................................................ 40
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
DUKE ENERGY CAROLINAS, LLC (Oconee Nuclear Station, Units 1, 2 and 3)
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Docket Nos. 50-269-SLR 50-270-SLR and 50-287-SLR October 22, 2021 APPLICANTS ANSWER OPPOSING REQUEST FOR HEARING, PETITION TO INTERVENE, AND PETITION FOR WAIVER SUBMITTED BY BEYOND NUCLEAR AND SIERRA CLUB I.
INTRODUCTION Pursuant to 10 C.F.R. §§ 2.309(i)(1) and 2.335(b), Duke Energy Carolinas, LLC (Duke or Applicant) submits this Answer opposing the Hearing Request and Petition to Intervene (Hearing Request) and Petition for Waiver (Waiver Request) (together, the Petition)1 filed by Beyond Nuclear and Sierra Club (Petitioners) on September 27, 2021, regarding the subsequent license renewal (SLR) application (SLRA) for Oconee Nuclear Station, Units 1, 2 and 3 (Oconee).2 The Hearing Request proposes three contentions purporting to challenge Applicants environmental report (ER).3 1
Hearing Request and Petition to Intervene by Beyond Nuclear and Sierra Club and Petition for Waiver of 10 C.F.R. §§ 51.53(c)(3)(i), 51.53(c)(3)(ii)(L), 51.71(d), 51.95(c)(1), and 10 C.F.R. Part 51 Subpart A, Appendix B, Table B-1 to Allow Consideration of Category 1 NEPA Issues (Sept. 27, 2021) (Package ML21270A249)
(Petition). The Petition is accompanied by multiple attachments, including Attachment 1, Declaration of Jeffrey T. Mitman in Support of Beyond Nuclear and Sierra Club Hearing Request (Mitman Decl.).
2 See Letter from Steven M. Snider, Duke, to NRC Document Control Desk, Duke Energy Carolinas, LLC (Duke Energy), Oconee Nuclear Station (ONS), Units 1, 2, and 3, Docket Numbers 50-269, 50-270, 50-287, Renewed License Numbers DPR-38, DPR-47, DPR-55, Application for Subsequent Renewed Operating Licenses (June 7, 2021) (Package ML21158A193). The application package contains multiple enclosures.
The SLRA is Enclosure 3, which consists of two attachments: the Safety Report (ML21158A194) and Appendix E, which is the Environmental Report (ER) (ML21158A195 to ML21158A200).
3 The Applicant does not challenge Petitioners standing claim in this proceeding.
2 In sum, the proposed contentions claim that the ER does not consider certain information regarding the environmental impacts of Severe Accidents caused by a hypothetical failure of the Jocassee Dam,4 and therefore does not satisfy the National Environmental Policy Act of 1969, as amended (NEPA)5 or the U.S. Nuclear Regulatory Commissions (NRCs) NEPA-implementing regulations in 10 C.F.R. Part 51.
More specifically, Proposed Contention 1 asserts that Duke incorrectly relies on 10 C.F.R. § 51.53(c)(3) to excuse it from needing to discuss such impacts because, according to Petitioners, that regulation does not apply to SLRAs.6 However, as Petitioners correctly acknowledge, their claim is contrary to controlling law.7 Furthermore, the ER does not take the position that Duke is excused from evaluating such impacts; rather, the impacts of Severe Accidents were analyzed generically in the NRCs Generic Environmental Impact Statement (GEIS) for license renewal,8 which the ER explicitly incorporates by reference.9 Thus, Proposed Contention 1 is factually and legally erroneous, and wholly inadmissible.
Proposed Contentions 2 and 3 effectively seek to challenge the GEIS analysis of Severe Accidents, which is codified in 10 C.F.R. Part 51, Subpart A, Appendix B (Appendix B), by claiming the ER fails to consider certain new and significant information (NSI), as required by 10 C.F.R. § 51.53(c)(3)(iv). But NRC regulations (including the codified GEIS analyses) cannot be challenged in adjudicatory proceedings absent a waiver. Accordingly, Petitioners submitted the corollary Waiver Request, asking that the application of certain NRC environmental 4
See Petition at 2-3.
5 See Pub. L.91-190, §2, Jan. 1, 1970, 83 Stat. 852 (codified at 42 U.S.C. §§ 4321 et seq.).
6 Petition at 11.
7 Id. at 12.
8 10 C.F.R. Part 51, App. B.
9 See 10 C.F.R. § 51.53(a); ER at 4-2.
3 regulations be set aside in this proceeding. Petitioners correctly recognize that their Proposed Contentions 2 and 3 cannot be admitted unless the Waiver Request is granted.
As explained in detail below, Proposed Contentions 2 and 3 must be denied because neither the Waiver Request nor the proposed contentions satisfy the legal requirements governing this Petition. As a general matter, the arguments Petitioners seek to advance in the Petition lack even the minimum clarity and precision required for contentions. Moreover, both the Waiver Request and the Hearing Request suffer from Petitioners fundamental failure to engage with either: (1) the analyses in the GEIS, which squarely evaluate Severe Accidents; or (2) the framework for the identification and screening of new information for potential significance to the Severe Accidents issue. Instead, Petitioners point to now fully-resolved current licensing basis (CLB) safety issues and (incorrectly) assume such information presents new and significant environmental issues.
Furthermore, the Petition relies primarily on a declaration from Jeffrey T. Mitman (Mitman Declaration), who purports to provide an opinion on safety matters as the basis for the Hearing Request and Waiver Request, which instead raise environmental claims. In fact, the first 18 pages of the Mitman Declaration focus on what he characterizes as serious safety issues that he admits are exclude[d] from the scope of license renewal.10 More troublingly, however, the Mitman Declaration contains multiple clear and significant factual errors, omissions, and mischaracterizations. Most notably, Petitioners rely on these errors to claim that there exists an outstanding and unresolved safety issue at Oconee.11 As explained below, that claim is patently false.
10 Petition at 18.
11 Id. at 3.
4 Furthermore, in terms of contention admissibility, an even more fundamental problem with the Mitman Declarationupon which the proposed contentions and the Waiver Request all relyis that it faults the ER for not considering certain information that relates to bounding and worst case flooding analyses. It is well-settled that NEPA is governed by a rule of reason and does not mandate consideration of bounding or worst case accident scenarios.12 Thus, as a matter of bright-line law, the fundamental premise of the Petition is legally defective, and the Petition must be summarily denied.
II.
BACKGROUND A.
Procedural History The Applicant filed its SLRA with the NRC on June 7, 2021, to renew Oconees operating licenses for an additional 20-year period. As part of the SLRA, and as required by Part 51, the Applicant submitted an ER that considers the potential environmental impacts of the requested extension. On July 28, 2021, the NRC published a notice in the Federal Register docketing the Oconee SLRA and providing an opportunity for interested persons to request a hearing by September 27, 2021.13 On September 27, 2021, Petitioners filed their Petition seeking to intervene in this SLR proceeding, requesting a hearing, and seeking a waiver to challenge the GEIS conclusions codified in Appendix B. The Applicant timely files this Answer thereto.14 12 Holtec Intl (HI-STORE Consolidated Interim Storage Facility), CLI-20-4, 91 NRC 167, 180 (2020) (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 354 (1989)).
13 See Duke Energy Carolinas, LLC; Oconee Nuclear Station, Units 1, 2, & 3; Subsequent License Renewal Application; Opportunity to Request a Hearing and to Petition for Leave to Intervene, 86 Fed. Reg. 40,662 (July. 28, 2021) (Notice of Hearing Opportunity).
14 10 C.F.R. § 2.309(i).
5 B.
SLR Environmental Review Under 10 C.F.R. Part 51 1.
General SLR Environmental Review Framework The NRCs license renewal environmental regulations in Part 51 are based in large part on the analyses in its GEIS for license renewal, which summarizes the findings of a systematic inquiry (accomplished through notice and comment rulemaking) into the potential environmental consequences of license renewal.15 Based on these analyses, the GEIS and Appendix B delineate two types of environmental issues:
Generic Category 1 issues for which the NRC made generic conclusions applicable to all existing nuclear power plants; and
Plant-Specific Category 2 issues for which site-specific analyses are required for each individual license renewal proceeding.
For Category 1 issues, the GEIS assigns impact levels (SMALL, MODERATE, or LARGE),
based on the GEIS analyses, which are codified in Appendix B. As part of an application for original or subsequent license renewal,16 applicants must submit an ER considering all Category 2 issues on a plant-specific basis.17 Applicants need not replicate the GEIS analyses of Category 1 issues in the ER,18 but may incorporate by reference those analyses and the codified impact findings from Appendix B.19 In promulgating this license renewal environmental regulatory framework, the NRC recognized that new information may need to be considered, to the extent it materially impacts 15 See NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (May 1996); Vol. 1, Main Report (ML040690705) (1996 GEIS); NUREG-1437, Rev. 1, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (June 2013); Vol. 1, Main Report (ML13106A241)
16 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-20-3, 91 NRC 133 (2020).
17 See 10 C.F.R. §§ 51.41, 51.45, 51.53(c)(3)(ii).
18 See id. § 51.53(c)(3)(i).
19 See id. § 51.53(a).
6 the GEIS analyses and conclusions.20 Accordingly, the NRC promulgated a further requirement that license renewal ERs must consider any new and significant information (NSI) regarding the environmental impacts of license renewal of which the applicant is aware.21 The NRC Staff draws upon the ER, the GEIS, and any NSI, among other sources of information, to produce a plant-specific Supplemental Environmental Impact Statement (SEIS) for each license renewal application.22 Although the GEIS findings are codified, and therefore are not subject to challenge in individual adjudicatory proceedings, the NRC publishes a draft version of the SEIS for public comment and invites the public to raise information they deem to be NSI through that process.23
- 2.
GEIS Consideration of Severe Accidents The NRCs assessment of flooding hazards for existing nuclear power plants is a separate and distinct process from license renewal.24 As a safety matter, when new information becomes available, the NRC evaluates it to determine if any changes to the plant or 20 See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses; Final Rule, 61 Fed. Reg.
28,467, 28,470 (June 5, 1996) (1996 Final Rule) (noting a revised and expanded framework for consideration of significant new information following discussions with the U.S. Environmental Protection Agency and the Council on Environmental Quality after the proposed rule was published).
21 10 C.F.R. § 51.53(c)(3)(iv). See also Regulatory Guide 4.2, Supp. 1, Rev. 1, Preparation of Environmental Reports for Nuclear Power Plant License Renewal Applications at 7-8 (June 2013) (ML13067A354). In broad terms, the NSI requirement is rooted in NEPA, which is intended to ensure that agencies consider the significant environmental consequences of their proposed actions. See Balt. Gas & Elec. Co. v. Nat. Res. Def.
Council, Inc., 462 U.S. 87, 97 (1983).
22 See 10 C.F.R. §§ 51.20(a)(1), (b)(2).
23 See 1996 Final Rule, 61 Fed. Reg. at 28,470 ([T]he NRC will review comments on the draft SEIS and determine whether such comments introduce new and significant information not considered in the GEIS analysis.); id. at 28,485 (In both the public scoping process and the public comment process, the Commission will accept comments on all previously analyzed issues and information codified in Table B-1 of appendix B to 10 CFR part 51 and will determine whether these comments provide any information that is new and significant compared with that previously considered in the GEIS. If the comments are determined to provide new and significant information bearing on the previous analysis in the GEIS, these comments will be considered and appropriately factored into the Commissions analysis in the SEIS.).
24 2013 GEIS at 1-16, 3-61.
7 its licensing basis are needed under the Atomic Energy Act (AEA).25 Such issues are addressed on an ongoing basis as part of the plants CLB, which is beyond the limited scope of license renewal under 10 C.F.R. Part 54.26 As the GEIS explains:
The NEPA process focuses on environmental impacts rather than on issues related to safety. Safety issues become important to the environmental review when they could result in environmental impacts, which is why the environmental effects of postulated accidents are considered in the GEIS and in plant-specific supplements to the GEIS. Since NEPA regulations do not provide for a safety review, the license renewal process includes an environmental review that is distinct and separate from the safety review. Since the two reviews are separate, operational safety issues and safety issues related to nuclear power plant aging are considered outside the scope for the environmental review, just as the environmental issues are not considered as part of the safety review.27 The NRCs 2013 update to the GEIS also acknowledged the flooding hazard re-analyses related to various post-Fukushima actions, which remained ongoing at the time of the update, but noted that all of these efforts were CLB matters [u]nrelated to license renewal.28 Accordingly, for the separate environmental review required for license renewal under NEPA and 10 C.F.R. Part 51, the GEIS considers the environmental consequences of external floods under the broader topic of Postulated Accidents.29 As relevant here, the 1996 GEIS generically concluded that the probability-weighted impacts of Severe Accidents (i.e., beyond design basis accidents, such as dam failure at Oconee) are SMALL, given their extraordinarily 25 See id. at 3-61.
26 See id. The license renewal safety review is limited to certain aging management matters. 10 C.F.R. §§ 54.21, 54.29(a); see also Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 7-8 (2001). The Commission determined that re-assessments of CLB safety issues at the license renewal stage would be unnecessary and wasteful (id. at 7) because they are effectively addressed and maintained by ongoing agency oversight, review, and enforcement. Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-04-36, 60 NRC 631, 638 (2004) (citation omitted).
27 See 2013 GEIS at 1-8 (emphasis added).
28 Id. at 1-21.
29 See id. at 4-158.
8 low probability.30 The 1996 GEIS concluded that risks from severe accidents initiated by external events (such as floods) are adequately addressed through a consideration of severe accidents initiated by an internal event (such as a loss of cooling water).31 Therefore, an applicant for license renewal need only analyze the environmental impacts from an internal event in order to adequately characterize the environmental impacts from either type of event.32 The 2013 GEIS re-affirmed the 1996 conclusion based on further evaluation of additional information, particularly as to external events, again noting that the impacts from external events are comparable33 to those from internal events.34 Notwithstanding this generic impact conclusion, the NRC also codified a requirement that alternatives to mitigate severe accidents must be considered for all plants that have not considered such alternatives.35 For plants that have already performed these severe accident mitigation alternatives (SAMA) analyses, such as Oconee, this is the functional equivalent of a Category 1 issue;36 for all other plants, it is a Category 2 issue.37 Furthermore, all license 30 See 1996 GEIS at 5-114 to 5-116; Appendix B, tbl. B-1 (Severe accidents issue).
31 2013 GEIS at E-5 (emphasis added).
32 Id.
33 2013 GEIS at E-47, tbl. E-19.
34 When the NRC updated the GEIS in 2013, it substantially re-evaluated the environmental impacts from externally-initiated Severe Accidents based on new information and analysis techniques. See 2013 GEIS, Vol.
3, App. E at E-16 to E-24. As part of this re-evaluation, the NRC considered various analyses of accident risks (expressed in quantitative terms of CDF). Id. at E-16. The NRC staff focused its re-evaluation on those external events that contribute the most to plant risk[,] explaining that its position in the GEIS is consistent with the results obtained from the IPEEEs and the perspectives articulated in NUREG-1742. Id.; see NUREG-1742, Perspectives Gained From the Individual Plant Examination of External Events (IPEEE) Program, Vol. 1, Final Report, at 4-20 (April 2002) (ML021270070).
35 Appendix B, tbl. B-1 (Severe accidents issue) (emphasis added).
36 10 C.F.R. § 51.53(c)(3)(ii)(L) excuses plants that have already performed SAMAs from the need to do so again. The Commission has explained that this renders the issue the functional equivalent of a Category 1 issue for such plants. Exelon Generation Co., LLC (Limerick Generating Station, Units 1 & 2), CLI-13-7, 78 NRC 199, 203 (2013) (citation omitted). See also GEIS, Supp. 2, Re: Oconee Nuclear Station, Units 1, 2, and 3, Final Report § 5.2 (Dec. 1999) (ML003670518) (addressing SAMAs for Oconee as part of the plants initial license renewal).
37 Appendix B, tbl. B-1 (Severe accidents issue).
9 renewal ERs (regardless of whether this is a Category 1 or 2 issue for a given plant) must consider NSI potentially relevant to either the generic impact conclusion or the SAMAs.38
- 3.
ER Consideration of Severe Accidents Applicants ER fully complies with 10 C.F.R. Part 51 and considers the full spectrum of environmental impacts from postulated flood-related external events via a comprehensive analysis that consists of both generic analyses from the GEIS, and additional evaluations performed by the Applicant. The analysis consists of three primary components:
First, the Applicant incorporated by reference the generic Category 1 analyses from the GEIS into the ER.39 As relevant here, that includes the analyses and conclusions from the GEIS and Appendix B as to the Severe Accidents issue.40 Second, the Applicant undertook a comprehensive NSI review related to the impacts discussion in the Severe Accidents issue. Among other things, Duke considered operational and accident analysis developments related to external events such as flooding.41 For the Oconee initial license renewal, Duke used a probabilistic risk assessment (PRA) model (which calculates a probability-weighted risk of core damage frequency (CDF) in events per year). The ER notes that Duke later developed an external flood PRA model (which feeds into the master PRA model), and that the external flood PRA was considered in the SLRA NSI review.42 Duke noted that the current internal events CDF of 2.4E-5/year is approximately 8 percent lower than the internal events CDF of 2.6E-5/year from the initial renewal; and that no new and significant information (including from the new external flood PRA) was identified related to the NRCs conclusion that probability-weighted impacts from severe accidents caused by internal events are comparable to those from external events, or that those impacts remain SMALL.43 38 10 C.F.R. § 51.53(c)(3)(iv). The NRC has approved specific guidance for the SLR NSI review for SAMAs.
See NEI-17-04, Model SLR New and Significant Assessment Approach for SAMA, Rev. 1 (Aug. 2019)
(ML19316C718) (NEI 17-04); Letter from A. Bradford, NRC, to C. Earls, NEI, Interim Endorsement of NEI 17-04, Model SLR New and Significant Assessment Approach for SAMA, Revision 1 (Dec. 11, 2019)
(ML19323E740).
39 See ER at 4-2.
40 Id. at E-4-84 to E-4-87.
41 Id. at E-4-76 to E-4-78.
42 Id.
43 Id.
10
Third, the Applicant undertook a comprehensive SAMA NSI review, consistent with NRC-approved guidance in NEI 17-04.44 To determine the level of significance of new information, the Applicant used its PRA model reflecting the most up-to-date understanding of plant risk at the time of analysis, including from the external flood PRA.45 This robust analysis, which is described across several pages of the ER, did not identify any NSI relevant to the original SAMA analysis for Oconee.46 Collectively, these analyses fully satisfy the requirements of Part 51.
C.
Brief History of CLB Flooding Matters Governed by 10 C.F.R. Part 50 at Oconee from 2008 to Present By way of background, no dam failures were postulated in the original licensing and design basis for Oconee.47 Thus, dam failure is considered a beyond-design-basis event for the plant. However, on August 15, 2008, the NRC issued a letter to Duke requesting information under the NRCs safety regulations at 10 C.F.R. § 50.54(f) related to site external flooding at Oconee due to, among other things, a hypothetical failure of the Jocassee Dam.48 More specifically, the NRC asked Duke to perform a bounding deterministic external flood hazard analysis assuming a failure of the Jocassee dam.49 Meanwhile, Duke committed to implementing a series of fifteen interim compensatory measures (ICMs) to mitigate potential external flooding hazards until the analysis was reviewed and approved by the NRC.50 Those 44 See id. at E-4-74 to E-4-78.
45 See id. at E-4-79.
46 See id. at E-4-82.
47 Letter from S. Batson, Duke, to NRC Document Control Desk, Revised Flood Hazard Reevaluation Report per NRCs Request for Additional Information at 59, tbl. 13, n.3 (Mar. 6, 2015) (ML15072A106, cover letter)
(ML16272A217 & ML16272A218, report) (2015 FHRR).
48 Letter from J. Giitter, NRC, to D. Baxter, Duke, Information Request Pursuant to 10 CFR 50.54(f) Related to External Flooding, Including Failure of the Jocassee Dam, at Oconee Nuclear Station, Units 1, 2, and 3, (TAC Nos. MD8224, MD8225, and MD8226) (Aug. 15, 2008) (ML081640244).
49 Id. at 2.
50 Letter from D. Baxter, Duke, to NRC Document Control Desk, Oconee External Flood Commitments (June 3, 2010) (ML101610083).
11 commitments, along with the requirement to submit the bounding analysis were formally documented via NRC Corrective Action Letter (CAL) 2-10-003 on June 22, 2010.51 Duke provided the analysis to the NRC on August 2, 2010 (the 2010 Licensee Evaluation).52 The NRC evaluated and accepted that analysis on January 28, 2011 (the 2011 NRC Evaluation), concluding that the parameters used by Duke bound the inundation of the
[Oconee] site resulting from a potential failure of the Jocassee Dam.53 Meanwhile, on March 12, 2012, the NRC issued letters to power reactor licensees, including Duke, again under the NRCs safety regulations at 10 C.F.R. § 50.54(f), requesting additional information in response to the 2011 Fukushima Dai-ichi accident.54 As relevant here, that letter instructed licensees to reevaluate flood hazards for their sites using updated, present-day analysis techniques and guidance.55 Accordingly, Duke submitted its final Flood Hazard Reevaluation Report to the NRC on March 6, 2015 (the 2015 FHRR).56 The NRC accepted the 2015 FHRR in a letter issued on April 14, 2016 (the 2016 NRC Evaluation).57 51 Letter from L. Reyes, NRC, to D. Baxter, CAL 2-10-003, Confirmatory Action Letter - Oconee Nuclear Station, Units 1, 2, and 3 Commitments to Address External Flooding Concerns (TAC Nos. ME3065, ME3066, and ME3067) (June 22, 2010) (ML12363A086) (CAL).
52 Letter from D. Baxter, Duke, to NRC Document Control Desk, Oconee Response to Confirmatory Action Letter (CAL) 2-10-003 (Aug. 2, 2010) (ML102170006) (2010 Licensee Evaluation).
53 Letter from E. Leeds, NRC, to P. Gillespie, Duke, Staff Assessment of Dukes Response to Confirmatory Action Letter Regarding Dukes Commitments to Address External Flooding Concerns at the Oconee Nuclear Station, Units 1, 2, and 3 (ONS) (TAC Nos. ME3065, ME3066, and ME3067) at 1 (Jan. 28, 2011)
(ML110280153) (2011 NRC Evaluation).
54 Letter from E. Leeds & M. Johnson, NRC, to All Power Reactor Licensees and Holders of Construction Permits in Active or Deferred Status, Request for Information Pursuant to Title 10 of the Code of Federal Regulations 50.54(f) Regarding Recommendations 2.1, 2.3, and 9.3 of the Near-Term Task Force Review of Insights from the Fukushima Dai-ichi Accident (Mar. 12, 2012) (ML12053A340).
55 Id. at 4.
56 See 2015 FHRR (this version superseded an initial FHRR for ONS submitted by Duke on March 12, 2013, (ML13079A227)).
57 Letter from J. Davis, NRC, to S. Batson, Duke, Oconee Nuclear Station, Units 1, 2, and 3 - Staff Assessment of Response to Request for Information Pursuant to 10 CFR 50.54(f) Flood-Causing Mechanisms Reevaluation (CAC Nos. MF1012, MF1013, and MF1014) and Path Forward on Confirmatory Action Letter (Apr. 14, 2016) (ML15352A207 cover letter) (Encl. 1, Staff Assessment, and Encl. 2, Addendum, available as enclosure to FOIA response at ML20288A414) (2016 NRC Evaluation).
12 to the 2016 NRC Evaluation provides an instructive comparison of the 2010 Licensee Evaluation and the 2015 FHRR. For example, while the 2010 Licensee Evaluation only considered the potential for sunny-day failure of the Jocassee dam, the 2015 FHRR considered the potential for hydrologic [i.e., overtopping], seismic, and sunny-day failures of Jocassee dam.58 As another example, the NRC summarized the two analyses by noting that the 2010 Licensee Evaluation reflects a highly conservative bounding analysis, whereas the 2015 FHRR presents a more reasonable analysis without excessive conservatism.59 Notably, in the 2016 NRC Evaluation, the NRC concluded that the 2015 FHRR provided an acceptable alternative to the licensees August 2, 2010 flood hazards analysis for the purpose of meeting the terms of the June 22, 2010, NRC [CAL].60 In 2016, Duke agreed to permanently maintain certain ICMs,61 and completed the CAL-required permanent flooding modifications at the site consistent with the 2015 FHRR.62 The NRC inspected those modifications and, on June 16, 2016, issued a letter confirming that Duke had implemented and satisfied all of the CAL commitments, including implementation of mitigative measures based on the 2015 FHRR (CAL Closeout Letter).63 The NRC also concluded, as part of its post-Fukushima beyond-design-basis efforts, that Duke had gone even 58 2016 NRC Evaluation, Encl. 2 at 3 (emphasis added).
59 Id.
60 Id. (cover letter at 2).
61 See id.
62 Letter from S. Batson, Duke, to NRC Document Control Desk, Notification of External Flood Modifications Completion (Apr. 29, 2016) (ML16131A671) (The modifications are: Relocation of the 100kV (FANT)
Back-up Power Line, East Slope Scour Protection, Intake Dike Scour Protection, Discharge Diversion Wall, and Turbine Building Drain Isolation.).
63 Letter from C. Haney, NRC, to S. Batson, Duke, Oconee Nuclear Station - Confirmatory Action Letter Followup Inspection Report 05000269/2016009, 05000270/2016009, and 05000287/2016009, (June 16, 2016) (ML16168A176) (CAL Closeout Letter). That letter also noted that the NRC would address ongoing external flooding oversight through the Fukushima framework. Ultimately, the NRC concluded that Duke had demonstrated effective flood protection at Oconee for beyond-design-basis external flooding events and documented Dukes completion of all required actions. See also infra note 63.
13 further and demonstrated the availability of physical margin above the [2015 FHRR]
reevaluated dam failure flood-causing mechanism, which provides additional assurance.64 For example, Duke has explicit procedures for deploying a backup method of core cooling independent of the [Standby Shutdown Facility (SSF)], using portable equipment, in case the SSF is unable to cope with [a hypothetical and beyond design basis] dam failure flood event.65 In sum: there are no outstanding regulatory or corrective actions on the part of either the NRC or Duke related to a postulated failure of the Jocassee dam; and Oconee has additional safety marginabove and beyond that provided by the actions taken in response to the CALrelated to a hypothetical flood.
D.
Significant Factual Errors, Omissions, and Mischaracterizations in the Mitman Declaration and the Petition As a preliminary matter, the Mitman Declaration, upon which the Petition relies as its sole basis of support, contains multiple and significant factual errors, omissions, and mischaracterizations. The problems summarized below are not subjective differences of opinion and do not purport to weigh the merits. Rather, clear and unequivocal factual information in the NRC public record contradicts several false, misleading, and alarmist assertions by Mr. Mitman, thereby depriving the Petition of the requisite support and ability to demonstrate a genuine dispute, as required at the contention admissibility stage.66 64 Letter from J. Uribe, NRC, to E. Burchfield, Duke, Oconee Nuclear Station, Units 1, 2, and 3 - Staff Assessment of Flooding Focused Evaluation (CAC Nos. MG0265, MG0266, MG0267, and EPID L-2017-JLD-0029), Encl. 2 at 10 (June 18, 2018) (ML18141A755) (2018 NRC Flooding FE Assessment). See also Letter from R. Bernardo, NRC, to E. Burchfield, Duke, Oconee Nuclear Station, Units 1, 2, and 3 -
Documentation of the Completion of Required Actions Taken in Response to the Lessons Learned from the Fukushima Dai-ichi Accident (Nov. 17, 2020) (ML20304A369) (closing out Dukes actions related to the NRCs Fukushima 50.54(f) Request).
65 2018 NRC Flooding FE Assessment, Encl. at 9.
66 As Mr. Mitman worked for the NRC during the record period, he was (or should have been) well aware of this information. Further, he cites to many of these public records in his declaration but omits key facts and conclusions.
14 1.
Ongoing Regulatory Effect of the 2011 NRC Evaluation Mr. Mitman claims that the 2011 NRC Evaluation required Duke to implement certain flood protection measures to maintain adequate protection, as required by NRC safety regulations.67 Specifically, he argues that the 2011 NRC Evaluation imposes an ongoing but unfulfilled requirement to protect the Oconee site from random sunny day failures of the Jocassee Dam to a flood depth of 68 which is based on the 2010 Licensee Evaluation and which he characterizes as the licensing basis for Oconee. Mr. Mitman also claims that the NRC has kept silent by neither withdrawing nor repudiating the 2011 NRC Evaluation nor requiring Duke to implement mitigative actions.69 These assertions are demonstrably incorrect because they are directly contrary to the administrative record and the NRCs long-established regulatory regime. As a legal matter, an NRC safety evaluation, standing alone, lacks the capacity to require anything. It is precisely thatan evaluation. As a basic precept of administrative law, federal agencies impose requirements through regulations and orders.70 Furthermore, as explained by the NRC:
Staff positions in safety evaluations are not requirements; rather, they are the NRCs regulatory bases for its decisions or interpretations. A safety evaluation (or safety evaluation report) provides the staff position on why an affected entitys proposed means of implementing or complying with a governing requirement is acceptable and results in compliance with the requirement. The safety evaluation is not part of the licensing basis unless specifically incorporated by the licensee or required as a condition of approval by the staff.71 67 See, e.g., Mitman Decl. at 1.
68 Id. at 13.
69 Id. at 1.
70 See generally Administrative Procedure Act, Pub.L.79-404, 60 Stat. 237 (1946) (codified at 5 U.S.C. §§ 500 et seq.), as amended.
71 NUREG-1409, Rev. 1, Backfitting Guidelines at 1-5 (Mar. 31, 2021) (ML21006A433) (This final report is awaiting Commission approval and has not formally been issued. But the Applicant does not cite the
15 Here, the requirement to take certain actions arises from the regulatory commitments made by Duke.72 As noted above, the NRC approved the 2015 FHRR as an acceptable alternative to the 2010 Licensee Evaluation for the purpose of meeting the terms of the NRC Confirmatory Action Letter (CAL) dated June 22, 2010.73 This important superseding NRC conclusion is conspicuously absent from the regulatory history discussion in the Mitman Declaration. Furthermore, Dukes regulatory commitment was to implement flooding modifications based on the 2015 FHRR (calculating realistic inundation levels), not the 2010 Licensee Evaluation (assuming extraordinarily conservative inundation levels).74 Mr. Mitman fails to disclose those material facts as well. Finally, and perhaps most importantly, he fails to mention the NRCs CAL Closeout Letter confirming that Duke implemented each and every action required by the CAL, and therefore satisfied all of the commitments therein.
This publicly-available information directly contradicts Mr. Mitmans erroneous assertions regarding any continuing regulatory effect of the 2011 NRC Evaluation and allegedly outstanding safety issues or corrective actions. And, clearly, the NRC has not kept silent on this issue.
document for its legal effect, but rather for the general proposition quoted above, which simply provides a concise historical summary of the agencys treatment of safety evaluations).
72 See, e.g., NRC, Office of Nuclear Reactor Regulation, Office Instruction LIC-100, Control of Licensing Bases for Operating Reactors (Jan. 7, 2004) (ML033530249) (noting that licensee regulatory commitments are considered enforceable obligations).
73 2016 NRC Evaluation (cover letter at 2).
74 Letter from S. Batson, Duke, to NRC Document Control Desk, Establish the Fukushima Flood Response as the Basis to Govern Flood Mitigation Modifications from Postulated Upstream Dam Failure (Aug. 8, 2014)
(ML14225A540) (based on the recognition that the flood basis in the FHRR for an upstream dam failure will supplant the 2010 CAL flood basis, the related flood mitigation modifications for ONS are now based on the FHRR rather than the CAL.).
16
- 2.
Probabilistic Flooding Discussion Mr. Mitman correctly observes that PRA can be used to evaluate Severe Accidents and SAMAs under NEPA. In fact, that is entirely consistent with the GEIS, which considers the probability-weighted impacts of a hypothetical severe accident, as opposed to the impacts of bounding accident scenarios.75 It is important to note that probabilistic analysis (e.g., as used in the GEIS or in a PRA) is quite different from deterministic analysis (e.g., as performed in the 2010 Licensee Evaluation and 2015 FHRR). The NRC contrasts deterministic with probabilistic as follows:
As applied in nuclear technology, [deterministic] generally deals with evaluating the safety of a nuclear power plant in terms of the consequences of a predetermined bounding subset of accident sequences. The term probabilistic is associated with an evaluation that explicitly accounts for the likelihood and consequences of possible accident sequences in an integrated fashion.76 Indeed, Mr. Mitman admits that PRA is always intended to be a best estimate analysis,77 (i.e.,
using realistic inputs as opposed to bounding ones). Nevertheless, Mr. Mitman improperly uses generic, bounding and worst-case input values to speculate that the probability (i.e., reasonable best estimate) of core damage from a Jocassee dam failure is 2.8E-4 per year.78 Clearly, the use of bounding and worst case inputs for a PRA purporting to be a reasonable best estimate is mathematically disingenuous and yields grossly mischaracterized results. Indeed, that is the primary reason why the Commission declines to consider bounding 75 These evaluations consider CDF (in events per year), calculated by multiplying an initiating event frequency (IEF) (e.g., dam failure frequency in this case), in events per year, and a conditional core damage probability (CCDP) (i.e., the likelihood of core damage if that initiating event occurs).
76 NRC, Deterministic (probabilistic), https://www.nrc.gov/reading-rm/basic-ref/glossary/deterministic-probabilistic.html (emphasis added).
77 Petition at 19 (emphasis added).
78 Mitman Decl. at 23.
17 or worst case analyses of postulated accidents79 in environmental reviewsbecause it creates a distorted picture of a projects [environmental] impacts.80 Mr. Mitman arrives at his CDF number by using a dam failure frequency of 2.8E-4 and simply assuming that core damage automatically would occur.81 However, Mr. Mitman failed to note his use of generic, bounding, and worst case values, rather than realistic, best estimate inputs to arrive at this value.
First, the 2.8E-4 dam failure frequency used by Mr. Mitman is an estimated generic dam failure rate[] for large rockfill dams.82 As the NRC has explained, generic values are typically used to estimate bounding values of dam failure frequency.83 The NRC noted that this generic value, developed from generalized assessments of dams (many of which were dissimilar to Jocassee), might84 be appropriate as a generic proxy in the absence of more realistic datai.e., an actual, probabilistic, best estimate calculation specific to the Jocassee dam.
But, as Mr. Mitman is aware, Duke has, in fact, developed an actual, probabilistic, best estimate calculation of dam failure frequency specific to the Jocassee dam that is two orders of magnitude lower than his imprecise, generic, and obviously bounding estimate.85 Yet, neither he nor Petitioners dispute (or even acknowledge) that information.
79 Holtec, CLI-20-4, 91 NRC at 180.
80 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-02-25, 56 NRC 340, 348 (2002)
(citing Methow Valley, 490 U.S. at 354-55).
81 Mitman Decl. at 22.
82 Memorandum from J. Mitman, NRC, to M. Cunningham, NRC, Generic Failure Rate Evaluation for the Jocassee Dam at 1 (Mar. 16, 2010) (ML14058A060).
83 NRC Information Notice 2012-02 at 2 (Mar. 5, 2012) (ML090510269) (emphasis added).
84 Memorandum to File from J. Boska, Oconee Nuclear Station, Units 1, 2, and 3, Documentation of Staff Decision Regarding Implementation of Permanent Modifications for Protection from External Flooding, Encl.
at 6 (Mar. 19, 2013) (ML16070A287).
85 D. Bowles, et al., RAC Engineers & Economists, Initial Hazard Curve for Flooding at the Safe Shutdown Facility at Oconee Nuclear Station Resulting from a Random Failure of Jocassee Dam (Feb. 28, 2010)
(calculating best estimate probability of failure of the Jocassee dam from all failure modes is 2.6E-6 per
18 Second, Mr. Mitmans assumption that core damage automatically would occur in the event of a dam failure86 is imported from a deterministic worst case87 hypothetical scenario that simply assumed such a failure but did not attempt or purport to calculate the probability of core damage.88 Quite obviously, the use of worst case assumptions is antithetical to the notion of calculating risk probability. At bottom, Mr. Mitmans claim that 2.8E-4 is a reasonable best estimate risk probability value is misleading and plainly erroneous.
Finally, Petitioners claim (based on the Mitman Declaration) that the ER relied on the same probability estimates [Duke] used in its first license renewal application in 1998.89 But that statement is demonstrably untrue. As plainly noted in the ER, external flood PRA models have been developed since the first license renewal, and were utilized in the quantitative PRA calculation that demonstrated the absence of any potentially significant SAMAs.90
- 3.
Consideration of Seismic and Overtopping Events Mr. Mitman states that the 2011 NRC Evaluation considered only random sunny-day failure mechanisms, but was silent to other relevant Jocassee Dam failure mechanisms including seismic and overtopping.91 He goes on to claim that Duke ignores seismic and overtopping failures in its risk analysis.92 Petitioners incorporate this claim in their year) (available at PDF page 284 to 308 of FOIA/PA No. 2012-0325 (ML15156A702)). Mr. Mitman himself cited this FOIA response multiple times in his Declaration. See Mitman Decl. at 2, 7, 14, 19, and 21.
86 Mitman Decl. at 22 (using a CCDP of 1.0 based on a quote noting the use of a deterministic assumed failure from a 1992 inundation study submitted to the Federal Energy Regulatory Commission (FERC)).
87 Id. at 12 (acknowledging and not disputing that the 1992 study was based on a worst case analysis).
88 Letter from B. Hamilton, Duke, to NRC Document Control Desk, Significance Determination for a White Finding and Reply to a Notice of Violation; EA-06-199, Attach. 1 at 2 (Dec. 20, 2006) (ML063620092)
(FERC methodology focuses on worst case dam failure consequences, not probability of failures.)
89 Petition at 15 n.26 (citing Mitman Decl. at 21).
90 ER at 4-77. See also supra note 84 (noting the post-initial license renewal development of best estimate inputs for the external flood PRA model).
91 Mitman Decl. at 13.
92 Id. at 25.
19 contentions.93 Nevertheless, as noted above, while the 2010 Licensee Evaluation only considered the potential for sunny-day failure of the Jocassee dam (as directed by the NRC), the 2015 FHRR considered the potential for hydrologic [i.e., overtopping], seismic, and sunny-day failures of Jocassee dam.94 As is evident from the plain text of the publicly-available administrative record, while Mr. Mitman may not agree with the outcome, neither the NRC nor Duke has ignored these scenarios.
III.
THE BOARD SHOULD DENY THE WAIVER REQUEST BECAUSE IT FAILS TO SATISFY THE COMMISSIONS WAIVER STANDARD The NRCs regulations at 10 C.F.R. § 2.335(a) include a general prohibition that no rule or regulation of the Commission, or any provision thereof... is subject to attack by way of discovery, proof, argument, or other means in any adjudicatory proceeding subject to this part.95 However, Section 2.335(b) also provides that [a] participant to an adjudicatory proceeding subject to this part may petition that the application of a specified Commission rule or regulation or any provision thereof... be waived or an exception be made for the particular proceeding.96 As detailed in Section IV.A., below, the Commissions threshold for granting such waivers is stringent by design.97 Petitioners acknowledge that a waiver is necessary for admission of their proposed contentions.98 Accordingly, they request a waiver of five regulations10 C.F.R. §§ 51.53(c)(3)(i), 51.53(c)(3)(ii)(L), 51.71(d), 51.95(c)(1), and 10 C.F.R. Part 51, Subpart A, 93 Petition at 14-17.
94 2016 NRC Evaluation, Encl. 2 at 3 (emphasis added).
95 10 C.F.R. § 2.335(a).
96 Id. § 2.335(b) (emphasis added).
97 Limerick, CLI-13-7, 78 NRC at 207.
98 Petition at 18 (a waiver of 10 C.F.R. §§ 51.53(c)(3)(i) is necessary in order to allow admission of []
Contentions 2 and 3).
20 Appendix B, Table B-1 (collectively the GEIS Regulations).99 In sum, the first two regulations excuse a license renewal applicant from the need to consider Category 1 issues in its ER because those issues already have been analyzed in the GEIS, and applicants may incorporate those analyses by reference; the next two regulations require the NRC Staff to consider the generic analyses and conclusions from the GEIS (as codified in Appendix B), among other sources of information, in preparing the draft and final SEIS; and the final regulation contains the codified conclusions from the GEIS analyses. As explained below, Petitioners have not satisfied the Commissions stringent requirements to justify a waiver of these regulations. Thus, their Waiver Request must be rejected as a matter of law.
A.
Legal Standard for Waivers As the Commission has explained, Section 2.335(b) provides only a limited exception to the NRCs general prohibition against challenges to NRC rules or regulations in adjudicatory proceedings.100 As a general matter, when the Commission decides to carv[e] out issues from adjudication, it does so carefully and deliberately pursuant to its broad statutory discretion to transact its business broadly, through rulemaking, or case-by-case, through adjudication.101 Thus, to challenge the generic application of a rule, a petitioner seeking waiver must show that there is something extraordinary about the subject matter of the proceeding such that the rule should not apply.102 More specifically, to litigate an issue that otherwise would be outside the scope of an adjudication, a petitioner must show that special circumstances with respect to the subject matter of the particular proceeding are such that the application of the rule or regulation 99 See id.
100 Limerick, CLI-13-7, 78 NRC at 206.
101 Id. at 207 (citations omitted).
102 Id. (citations omitted) (emphasis added).
21 would not serve the purposes for which... [it] was adopted.103 The waiver petitioner must include an affidavit that states with particularity the special circumstances that justify waiver of the rule.104 In 2005, in the Millstone license renewal proceeding, the Commission set forth a four-part test that it has long used in ruling on waiver petitions.105 That test requires the petitioner to show that:
(1) The rules strict application would not serve the purposes for which it was adopted; (2) Special circumstances exist that were not considered, either explicitly or by necessary implication, in the rulemaking proceeding leading to the rule sought to be waived; (3) Those circumstances are unique to the facility rather than common to a large class of facilities; and (4) Waiver of the regulation is necessary to reach a significant safety (or environmental) problem.106 All four Millstone elements must be met to justify a rule waiver.107 The Commission has noted that this purposefully places a substantial burden on waiver petitioners because the agency will not set aside a duly-promulgated regulation lightly, and because the Commissions longstanding view is that in general, challenges to regulations are best evaluated through 103 Id. at 206-07 (quoting 10 C.F.R. § 2.335(b)).
104 Id. at 207 (quoting 10 C.F.R. § 2.335(b)).
105 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-05-24, 62 NRC 551, 559-60 (2005).
106 See id.
107 See Limerick, CLI-13-7, 78 NRC at 208.
22 generic means.108 In the context of a Part 51 waiver, the Commission has held that a petitioner must present specific, fact-based claims... not mere allegations.109 B.
Petitioners Fail to Identify Any Special Circumstances Specific to Oconee That Justify a Waiver (Millstone Elements 2 and 3)
Petitioners special circumstances argument is that no previous environmental impact statement has considered the new and significant information presented in Mr. Mitmans Expert Report and Petitioners [proposed contentions 2 and 3].110 As noted above, the information therein pertains to bounding or worst case accident scenarios, the analysis of which NEPA clearly does not require.111 Accordingly, that information is not material to the Staffs NEPA review, much less could it be considered a special circumstance justifying the extreme action of setting aside a codified Commission regulation.
A Commission ruling in the Diablo Canyon license renewal proceeding considered and rejected a waiver request presenting a slightly different, but equally deficient, claim. The petitioners in that proceeding asserted that special seismic circumstances, including the recent discovery of a seismic fault near the plant, had not been considered in the 1996 GEIS.112 The Commission explained that the absence of an analysis of that specific information in the GEIS does not, without more, suggest a deficiency in the GEIS.113 So too here. Petitioners fail to provide anything more because they fail to disclose their reliance on bounding accident 108 Id. (citation omitted).
109 Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility), CLI-20-15, 92 NRC __, __ (Dec.
17, 2020) (slip op. at 22 n.111) (quoting Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation),
CLI-04-22, 60 NRC 125, 134 (2004)).
110 Petition at 21.
111 Holtec, CLI-20-4, 91 NRC at 180 (NEPA does not require a worst case analysis for potential accident consequences).
112 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-11-11, 74 NRC 427, 451 n.133 (2011).
113 Id.
23 scenarios, much less explain why or how such information could be relevant (much less, special) in the NEPA context or otherwise suggest a deficiency in the GEIS. Nor have they demonstrated that such (non-existent) circumstances are unique to Oconee, rather than common to a large class of facilities.114 Accordingly, the Waiver Request should be denied for failing to satisfy the second and third Millstone elements.
C.
Petitioners Fail to Identify Any Regulation That, If Applied Here, Would Defeat the Commissions Purpose For Enacting It (Millstone Element 1)
Petitioners argue that strict application of the GEIS Regulations would defeat the purposes for which these regulations were adopted. Petitioners quote from the 1996 statement of considerations for the Part 51 rulemaking and conclude that its purposes included increasing efficiency, saving costs, and improving the quality of both generic and site-specific environmental analyses.115 However, Petitioners fail to articulate a reasoned explanation of how the application of the GEIS Regulations in this proceeding would undermine these goals. In fact, litigating a fully-resolved CLB safety issue through an environmental contention in a license renewal proceeding diametrically contradicts these goals.
The federal courts have approved the NRCs legitimate efficiency116 goal and acknowledged that requiring generic issues to be analyzed afresh with each application would be counterproductive to administrative efficiency and consistency of decision.117 Here, 114 As a general matter, the existence of bounding analyses of severe accident risks associated with external events is not unique to Oconee. Indeed, the entire industry considered such issues as part of the Commissions post-Fukushima efforts.
115 Petition at 20.
116 As the Commission noted in 2013, the purpose of using generic analyses of Category 1 issues was to improve the efficiency of the license renewal process. Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, Final Rule, 78 Fed. Reg. 37,282, 37,314 (June 20, 2013) (2013 Final Rule).
117 The First Circuit has observed that the preparation of an EIS poses a significant task for the NRC, and noted that the NRC relies on generic analyses of Category 1 issues to streamline the license renewal process and dispense with the need to analyze broadly-applicable issues afresh with each license renewal application.
24 Petitioners argue that application of these regulations would defeat the Commissions purposes by barring consideration of NSI related to a hypothetical external flood event from an assumed failure of the Jocassee Dam.118 Petitioners claim that Part 51 somehow excuses or prohibits the Applicant, the NRC Staff, or both, from considering such information to the full extent required by NEPA. Indeed, Petitioners go so far as to describe Appendix B as providing a categorical exclusion from NEPA review.119 But that is factually and legally incorrect.
As noted above in Section II.B.1 and II.B.2., the GEIS analyses are not static. The Commission squarely recognized the possibility that circumstances could arise that may materially alter the generic analyses and codified impact conclusions in the GEIS and Appendix B. Accordingly, it also codified the NSI mechanism to require applicants120 and the NRC Staff121 to consider new information (and determine whether it is significant) and provided an opportunity for the public to raise potential NSIwhich the Staff must consider.122 Far from excluding such information from NEPA review, or barring consideration of new information material to NEPA compliance, the NRCs existing framework explicitly requires it.
To the extent Petitioners repeated assertion that NRC regulations bar consideration123 of an external flood event caused by failure of the Jocassee Dam is intended as an acknowledgment that the Commission has exercised its broad authority to preclude adjudicatory challenges to codified GEIS conclusions and the Applicants or Staffs evaluation Massachusetts v. United States, 522 F.3d 115, 119-120 (1st Cir. 2008). See also id. at 127 (quoting Balt. Gas
& Elec. Co., 462 U.S. at 101) (noting Supreme Court precedent for the same premise).
118 Petition at 20-21.
119 Id. at 13.
120 See 10 C.F.R. § 51.53(c)(3)(iv).
121 See id. § 51.95(c)(3)-(4).
122 See 1996 Final Rule, 61 Fed. Reg. at 28,470, 28,485.
123 Petition at 20-21.
25 of potential NSI, without a waiver, that assertion is correct. However, Petitioners have not identified, with requisite specificity, any circumstances necessitating an opportunity to do so.
Petitioners only further argument in this section is their assertion that the potential for a core melt accident caused by an assumed worst case failure of the Jocassee Dam is significantly higher than estimated by Duke in its SAMA analysis and therefore constitutes NSI that must be considered under NEPA.124 But, as noted above, a bounding flooding hazards analysis is not required under NEPA. To the contrary, the Commissions goals of efficiency, saving costs, and improving the quality of environmental reviews are well-served by avoiding the need to adjudicate environmental claims that are immaterial to, and clearly beyond the bounds of, NEPA.
Expending resources on an unnecessary analysis is precisely the inefficient result the Commission has sought to avoid. And Petitioners have not demonstrated why such a result is warranted here. Accordingly, the first Millstone element remains unsatisfied.
D.
Petitioners Fail to Identify a Significant Environmental Problem (Millstone Element 4)
Petitioners theory that a waiver is necessary to address a significant environmental problem is based on their erroneous characterization of the regulatory status of this issue and erroneous claim that Duke has not implemented the mitigation measures deemed necessary by the NRC in the CAL.125 Petitioners assertion blatantly ignores the relevant regulatory record.126 Specifically, the 2016 NRC Evaluation confirmed that the 2015 FHRR provided an acceptable analysis for purposes of CAL compliance,127 and the CAL Closure Letter confirmed the 124 See id. at 21.
125 Id. at 22.
126 See supra Section II.D.1.
127 2016 NRC Evaluation (cover letter at 2) (stating the 2015 FHRR provides an acceptable alternative to the licensees August 2, 2010 flood hazards analysis for the purpose of meeting the terms of the June 22, 2010, NRC [CAL]) (emphasis added)).
26 Applicant completed all actions required by the CAL.128 In sum, Petitioners do not engage with the relevant GEIS analyses and disregard the factual evidence present in the record. Moreover, the factually-and legally-erroneous claims advanced in the Petition clearly fail to identify a significant environmental problem.
The Commission will not set aside a duly-promulgated regulation lightly.129 And Petitioners identify no reason to do so here, where they have not satisfied anymuch less, all fourof the Millstone elements. Thus, the Waiver Request should be denied.
IV.
THE BOARD SHOULD DENY THE HEARING REQUEST BECAUSE IT DOES NOT PROPOSE AN ADMISSIBLE CONTENTION Petitioners propose three contentions. As a preliminary matter, because Petitioners have not satisfied the Commissions stringent waiver requirements, the proposed contentions are inadmissible on their face. But even if the Waiver Request is granted, the proposed contentions still fall far short of satisfying all six admissibility criteria in 10 C.F.R. § 2.309(f)(1), as detailed below. Because Petitioners failed to propose at least one admissible contention, the Hearing Request must be denied.
A.
Legal Requirements for Hearing Requests and Petitions to Intervene Under 10 C.F.R. § 2.309(f)(1), a hearing request must set forth with particularity the contentions sought to be raised. In addition, 10 C.F.R. § 2.309(f)(1) states that each contention must:
(i)
Provide a specific statement of the issue of law or fact to be raised or controverted; 128 CAL Closure Letter, Encl. at 3 (The NRC has determined that Duke has satisfied all of the commitments of the CAL.).
129 Limerick, CLI-13-7, 78 NRC at 208.
27 (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 that is involved in the proceeding; (v)
Provide a concise statement of the alleged facts or expert opinions, including references to the specific sources and documents that support the petitioners position and upon 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.
Failure to comply with any one of these six admissibility requirements is grounds for rejecting a proposed contention.130 Indeed, these requirements are strict by design.131 The rules were toughenedin 1989 because in prior years licensing boards had admitted and litigated numerous contentions that appeared to be based on little more than speculation.132 The purpose of the six criteria is to focus litigation on concrete issues and result in a clearer and more focused record for decision.133 The Commission has explained 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.134 The petitioner alone bears the burden to meet the standards of contention admissibility.135 Thus, where a petitioner neglects to provide the requisite support for its contentions, the Board 130 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).
131 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001).
132 Id. (quoting Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3), CLI-99-11, 49 NRC 328, 334 (1999)).
133 Changes to Adjudicatory Process, 69 Fed. Reg. at 2,202; see also Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), LBP-08-13, 68 NRC 43, 61 (2008).
134 Changes to Adjudicatory Process, 69 Fed. Reg. at 2,202.
135 See Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-15-23, 82 NRC 321, 325, 329 (2015)
(stating [t]he proponent of a contention is responsible for formulating the contention and providing the necessary support to satisfy the contention admissibility requirements and it is Petitioners responsibility, not the Boards, to formulate contentions and to provide the necessary information to satisfy the basis
28 may not cure the deficiency by supplying the information that is lacking or making factual assumptions that favor the petitioner to fill the gap.136 At the most basic level, a contention must articulate the specific legal or regulatory requirement that it claims to be unsatisfied, and explain the basis for that claim because the parties are entitled to be told at the outset, with clarity and precision, what arguments are being advanced and what relief is being sought.137 The Board and the parties cannot be faulted for not having searched for a needle that may be in a haystack.138 A contention that merely states a conclusion, without reasonably explaining why the application is inadequate, cannot provide a basis for the contention.139 A material issue is one that would make a difference in the outcome of the licensing proceeding.140 The petitioner must demonstrate that the subject matter of the contention would impact the grant or denial of a pending license application.141 Furthermore, as noted above, a contention that challenges an NRC rule is outside the scope of the proceeding because, absent a waiver, no rule or regulation of the Commissionis subject to attackin any adjudicatory proceeding.142 requirement for admission) (citation omitted); see also DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 2),
CLI-15-18, 82 NRC 135, 149 (2015) (the Board may not substitute its own support for a contention or make arguments for the litigants that were never made by the litigants themselves.) (citation omitted).
136 See id.
137 Kansas Gas & Elec. Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-279, 1 NRC 559, 576 (1975)
(emphasis added).
138 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), CLI-89-3, 29 NRC 234, 241 (1989).
139 See USEC, Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451, 472 (2006).
140 Oconee, CLI-99-11, 49 NRC at 333-34 (citation omitted).
141 Indian Point, LBP-08-13, 68 NRC at 62 (citation omitted).
142 10 C.F.R. § 2.335(a).
29 With respect to the requirement to provide adequate support, a licensing board should examine documents to confirm that they support the proposed contention(s).143 A petitioners imprecise reading of a document cannot be the basis for a litigable contention.144 Equally important, the Commission has stated further that the petitioner must read the pertinent portions of the license application... state the applicants position and the petitioners opposing view, and explain why it disagrees with the applicant.145 If a petitioner believes the license application fails to adequately address a relevant issue, then the petitioner is to explain why the application is deficient.146 A contention that does not directly controvert a position taken by the applicant in the application is subject to dismissal.147 For example, if a petitioner submits a contention of omission, but the allegedly missing information is indeed in the license application, then the contention does not raise a genuine dispute.148 B.
Proposed Contention 1 (Applicability of § 51.53(c)(3) to SLR) Is Inadmissible Proposed Contention 1 must be rejected as inadmissible on multiple grounds. This contention presents two distinct claims: a contention of omission and a legal contention. As to the contention of omission, Petitioners assert that Dukes ER:
Fails to satisfy 10 C.F.R. § 51.53(c)(2) because it fails to fulfill that provisions requirement to discuss the environmental impacts of 143 See Vt. Yankee Nuclear Power Corp. (Vt. Yankee Nuclear Power Station), ALAB-919, 30 NRC 29, 48 (1989),
vacated in part on other grounds and remanded, CLI-90-4, 31 NRC 333 (1990).
144 See Ga. Inst. of Tech. (Ga. Tech Research Reactor, Atlanta, Ga.), LBP-95-6, 41 NRC 281, 300 (1995).
145 Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process; Final Rule, 54 Fed. Reg. 33,168, 33,170 (Aug. 11, 1989); see also Millstone, CLI-01-24, 54 NRC at 358.
146 Procedural Changes in the Hearing Process, 54 Fed. Reg. at 33,170; see also Ariz. Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Units 1, 2, & 3), CLI-91-12, 34 NRC 149, 156 (1991).
147 See S.C. Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 & 3), CLI-10-1, 71 NRC 1, 21-22 (2010); Tex. Utils. Elec. Co. (Comanche Peak Steam Electric Station, Unit 2), LBP-92-37, 36 NRC 370, 384 (1992), vacated as moot, CLI-93-10, 37 NRC 192 (1993).
148 See Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), LBP-04-15, 60 NRC 81, 95 (2004).
30 alternatives and any other matters described in [10 C.F.R.] § 51.45.149 Petitioners specify that the allegedly-missing information is set forth in their Proposed Contentions 2 and 3 (namely, information regarding bounding or worst case analyses of severe accident impacts related to a hypothetical failure of the Jocassee dam), which they incorporate by reference in this Proposed Contention 1.150 As explained in Sections IV.C and IV.D, below, those contentions fail to identify any information that is required to be considered by NEPA, but that has not been addressed in the ER or GEIS (because, among other reasons, NEPA does not require consideration of bounding or worst case accident analyses). The Applicant incorporates here, by reference, those portions of this Answer. Thus, the contention of omission presented in Proposed Contention 1 is inadmissible for the same reasons.
Because the first part of Proposed Contention 1 is duplicative of Petitioners other contentions, the primary issue raised here is Petitioners legal contention asserting that:
Duke incorrectly relies on 10 C.F.R. § 51.53(c)(3) to excuse it from discussing significant environmental impacts classified as Category 1 in 10 C.F.R. Part 51, Part A, Appendix B.151 Petitioners assert that Dukes reliance on 10 C.F.R. § 51.53(c)(3) is legally erroneous because, in Petitioners view, that provision does not apply to SLR applicants.152 But, as a matter of settled law, that assertion is incorrect. The Commission has squarely held that 10 C.F.R. § 51.53(c)(3) applies both to initial and subsequent license renewal applications.153 149 Petition at 11.
150 Id. (Relevant information that must be considered is set forth in Contentions 2 and 3, below, which are hereby adopted and incorporated by reference.).
151 Id.
152 Id. at 12.
153 Turkey Point, CLI-20-3, 91 NRC 133. See also Exelon Gen. Co., LLC (Peach Bottom Atomic Power Station, Units 2 & 3), CLI-20-11, 92 NRC __ (Nov. 12, 2020) (slip op.).
31 That decision is binding precedent that the Board must follow in this proceeding.154 Indeed, a few sentences after Petitioners claim Dukes interpretation is legally erroneous, they admit that the Commission has upheld Dukes interpretation.155 In other words, Petitioners refute their own claim. At bottom, Petitioners legal contention is inadmissible for failing to satisfy 10 C.F.R. § 2.309(f)(1)(v)-(vi) because it is unsupported and fails to raise a genuine dispute on a material issue of law or fact.
C.
Proposed Contention 2 (Severe Accident Impacts NSI) Is Inadmissible Proposed Contention 2 is captioned Failure to Consider New and Significant Information Regarding Significant Impacts of Reactor Accidents Caused by Failure of Jocassee Dam.156 (In contrast, Proposed Contention 3 relates to SAMA NSI.) Here, Petitioners assert that Duke has violated NEPA and 10 C.F.R. § 51.53(c)(3)(iv) because the ER allegedly does not address two items, which Petitioners characterize as new and significant environmental information: (1) unspecified Duke risk analyses, and (2) the 2011 NRC Evaluation.157 As detailed below, this proposed contention should be rejected for multiple reasons, including Petitioners failure to address the relevant standards, their failure to provide the requisite specificity, and because (notwithstanding these failures), the information they identify does not, in fact, qualify as NSIprimarily because it pertains to bounding accident analysis, which NEPA does not require.
154 Virginia Elec. Power Co. (North Anna Nuclear Power Station, Units 1 & 2), LBP-21-4, 93 NRC __, __
(Mar. 29, 2021) (slip op. at 5-6 n.11).
155 Petition at 12 (citing Turkey Point, CLI-20-3, 91 NRC 133).
156 Id. at 13 (emphasis added).
157 Id. at 14.
32
- 1.
Petitioners Fail to Plead the Prima Facie Elements for a Challenge Regarding New and Significant Information As a preliminary matter, Petitioners claim to have identified NSI, but fail to engage with the regulatory definition of that term or plead facts purporting to demonstrate satisfaction of the elements thereof. In the context of the NRCs NEPA regulations at 10 C.F.R. § 51.53(c)(3)(iv),
new and significant information is defined to include two things:
(1) information that identifies a significant environmental impact issue that was not considered or addressed in the GEIS and, consequently, not codified in Table B-1, Summary of Findings on NEPA Issues for License Renewal of Nuclear Plants, in Appendix B, Environmental Effect of Renewing the Operating License of a Nuclear Power Plant, to Subpart A, National Environmental Policy ActRegulations Implementing Section 102(2), of 10 CFR Part 51, or (2) information not considered in the assessment of impacts evaluated in the GEIS leading to a seriously different picture of the environmental consequences of the action than previously considered, such as an environmental impact finding different from that codified in Table B-1.158 However, conspicuously absent from the Petition is any acknowledgment or engagement with this definition OR with any specified baseline analyses in the GEIS. Indeed, it is unclear which prong Petitioners might purport to satisfy because they neither specify their arguments nor provide any corresponding explanation or support.
Furthermore, the second NSI definition requires identifying information so significant that it would alter the impact finding (SMALL, MODERATE, or LARGE) for the corresponding NEPA issue. These significance levels are expressly defined in Appendix B. Again, Petitioners fail to acknowledge or engage with those significance definitions or contrast their assertions with any particular discussion of significance level in the GEIS.
158 Regulatory Guide 4.2, Supplement 1, Preparation of Environmental Reports for Nuclear Power Plant License Renewal Applications at 7-8 (June 2013) (ML13067A354).
33 In simple terms, Proposed Contention 2 is based on a safety evaluation (and Petitioners flawed understanding thereof). Whereas the absence of engagement with the key environmental terms of art, regulatory definitions, and baseline GEIS analyses should be viewed as dispositive to any suggestion that Petitioners have met their burden to plead an admissible environmental contention.159 Accordingly, Proposed Contention 2 must be rejected for failure to satisfy 10 C.F.R. § 2.309(f)(1)(ii), (v), and (vi).
- 2.
Petitioners Claims Regarding Unspecified Duke Risk Analyses Lack the Requisite Specificity for an Admissible Contention The first bullet of Proposed Contention 2 alleges that the ER is deficient because:
Dukes own risk analyses show that the likelihood of a core melt accident and containment failure caused by a random failure of the Jocassee Dam is significantly higher than presented in Dukes Environmental Report. And even this higher estimate of Jocassee Dam failure frequency is too low, given Dukes failure to consider the additional credible contributors to Jocassee dam failure frequency of seismic events and dam overtopping.160 Notably, however, Petitioners do not identify the specific risk analyses they claim are NSI.
Nor do they identify any portion of the ER that purportedly presented an analysis that differs from those unspecified risk analyses.161 As NRC regulations make clear, a hearing cannot be convened on the basis of generalized claims; rather, a petitioner must set forth with 159 Mr. Mitman does not purport to be a NEPA expert, but rather proffers an opinion solely on safety issues.
Mitman Decl. at 1. Petitioners make an unsupported claim that the 2011 NRC Evaluation per se established any and all information related to severe accidents from hypothetical dam failures as a significant environmental issue. Petition at 14. To the extent that baseless assertion could be interpreted as a claim that such information automatically qualifies as NSI, it contradicts the fundamental notion that NEPA is governed by a rule of reason and does not require consideration of every possible bounding accident scenario. See infra Section IV.C.3.c.
160 Petition at 14. As noted above, Petitioners assertion that Duke has failed to consider seismic events and dam overtopping in its flooding analyses is patently incorrect. See supra Section II.D.3.
161 Similarly, Petitioners assert that Duke also fails to consider the risk contribution from shutdown operations.
Petition at 15; see also Mitman Decl. at 23. But the intended meaning of this statement is unclear, and neither Petitioners nor Mr. Mitman offer any explanation. Moreover, this brief statement fails to engage with the extensive Duke and NRC analyses conducted as part of the CAL and Fukushima processes, much less identify some defect therein that somehow could be relevant to Petitioners environmental contention.
34 particularity the issues it proposes to be resolved at an evidentiary hearing.162 Parties are entitled to be told at the outset, with clarity and precision, what arguments are being advanced.163 Petitioners ambiguous reference to undefined risk analyses fails to meet that threshold.164 Thus, this aspect of the contention, on its face, fails to satisfy the specificity requirement in 10 C.F.R. § 2.309(f)(1)(i).
- 3.
Neither the 2010 Licensee Evaluation Nor the 2011 NRC Evaluation Satisfies the Definition of New and Significant Information Although not required to do so, the Applicant has attempted to decipher Petitioners reference to risk analyses in Proposed Contention 2 and believes Petitioners may have intended to refer to the 2010 Licensee Evaluation.165 And again, while not required to do so, the Applicant has evaluated both the 2010 Licensee Evaluation and the 2011 NRC Evaluation against the definition of NSIsomething Petitioners failed to do in their Petition. To be sure, the burden of pleading an admissible contention falls squarely on the Petitioners; the Applicant does not have a burden to show that a proposed contention is inadmissible.166 Nevertheless, as a courtesy to the Board, the Applicant provides the discussion below confirming that neither the 2010 Licensee Evaluation nor the 2011 NRC Evaluation, in fact, satisfies the definition of new and significant information. As such, even assuming arguendo Petitioners had satisfied the specificity requirement and had analyzed the applicable standard, the proposed contention is inadmissible for the additional reason that it is unsupported and fails to demonstrate a genuine 162 10 C.F.R. § 2.309(f)(1).
163 Wolf Creek, ALAB-279, 1 NRC at 576 (emphasis added).
164 To the extent Petitioners rely on the Mitman Declaration to define the proposed contention, that approach is insufficient because the Board and the parties cannot be faulted for not having searched for a needle that may be in a haystack. Seabrook, CLI-89-3, 29 NRC at 241. In any event, the Mitman Declaration references multiple analyses, so the reference remains unclear.
165 To be clear, as explained above, the 2010 Licensee Evaluation is not a risk (i.e., probabilistic) analysis; it is a deterministic analysis. But, again, Petitioners do not discuss that key distinction.
166 See generally Palisades, CLI-15-23, 82 NRC at 325, 329.
35 dispute with the Application on a material issue of law or fact, as required by 10 C.F.R. § 2.309(f)(1)(v)-(vi).
- a.
Neither the 2010 Licensee Evaluation Nor the 2011 NRC Evaluation Are New Because Both Were Available Before the Revised GEIS Was Issued in 2013 First, and quite simply, neither the 2010 Licensee Evaluation nor the 2011 NRC Evaluation is new. The GEIS was updated in 2013.167 In contrast, the 2010 Licensee Evaluation was submitted to the NRC approximately three years before that, and the 2011 NRC Evaluation was issued the following year. To be admissible, a challenge to an ERs compliance with the requirements of 10 C.F.R. § 51.53(c)(3)(iv) must show the existence of post-2013 Revised GEIS new and significant information [] that would change the GEIS conclusion.168 But neither of these documents is post-2013 Revised GEIS. Both were clearly available and known to the NRC years before the 2013 Revised GEIS was issued. Petitioners offer no explanation as to how this information somehow could be considered new.
- b.
Neither the 2010 Licensee Evaluation Nor the 2011 NRC Evaluation Satisfies the First Definition of NSI Because Neither Identifies a New NEPA Issue Not Listed in Table B-1 Furthermore, even if this information could be considered new, it still does not satisfy the first definition of NSI. As noted above, that definition pertains to identifying an entirely new NEPA issue not listed in Appendix B, Table B-1. In contrast, the 2010 Licensee Evaluation and the 2011 NRC Evaluation discuss a hypothetical severe accident triggered by a beyond-design-basis external flooding event. Thus, this topic squarely falls within the Severe Accidents issue analyzed in the GEIS and listed in Appendix B, Table B-1. Accordingly, 167 See generally 2013 Final Rule, 78 Fed. Reg. 37,282.
168 North Anna, LBP-21-4, 93 NRC at __ (slip op. at 32).
36 Proposed Contention 2 does not (and does not purport) to identify an entirely new NEPA issue, as contemplated in the first definition of NSI.
- c.
Neither the 2010 Licensee Evaluation Nor the 2011 NRC Evaluation Satisfies the Second Definition of NSI Because Both Are Bounding Analyses Beyond the Scope of NEPA and Therefore Immaterial to the GEIS Impact Conclusion for Severe Accidents As discussed above, it is well settled that NEPA does not require bounding or worst case analyses of postulated accidents.169 The Commission has explained that such an inquiry is unnecessaryand furthermore, unhelpful in the context of informed decision-makingbecause it creates a distorted picture of a projects impacts and wastes agency resources.170 Rather, the environmental review mandated by NEPA is subject to a rule of reason.171 In contrast, the 2010 Licensee Evaluation, as reviewed in the 2011 NRC Evaluation, reflects a bounding analysis.172 Petitioners do not acknowledge this disconnect. But, in the context of a NEPA contention, it is dispositive.
As a clear matter of public record, the 2010 Licensee Evaluation and 2011 NRC Evaluation discuss a bounding external flooding analysissomething that NEPA does not require, and which would distort the Commissions hard look at realistic project impacts.
Because these documents are not material to the environmental review required under NEPA, 169 Holtec, CLI-20-4, 91 NRC at 180 (NEPA does not require a worst case analysis for potential accident consequences).
170 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-02-25, 56 NRC 340, 348 (2002)
(citing Methow Valley, 490 U.S. at 354-55).
171 Nat. Res. Def. Council, Inc. v. Morton, 458 F.2d 827, 834 (D.C. Cir. 1972)).
172 2016 NRC Evaluation, Encl. 2 at 4. See also Mitman Decl. at 10 (acknowledging that the NRC letter prompting the 2010 Licensee Evaluation requested the licensee to identify the bounding external flood hazard at Oconee) and 13 (acknowledging the 2011 NRC Evaluation confirms the bounding inundation scenario at Oconee).
37 they lack the capacity to alter the GEIS impact conclusion for Severe Accidents. Accordingly, this information does not meet the second definition of NSI.173 In sum, even if Petitioners had engaged with the relevant NSI standardwhich they clearly did not dothe proposed contention still would be inadmissible for the additional reason that the information identified by Petitioners demonstrably does not qualify as NSI. Ultimately, Proposed Contention 2 is unsupported, immaterial, and fails to demonstrate a genuine dispute with the Application on a material issue of law or fact, as required by 10 C.F.R. § 2.309(f)(1)(iv)-(vi).
D.
Proposed Contention 3 (SAMA NSI) Is Inadmissible Proposed Contention 3 is captioned Failure to Consider New and Significant Information Affecting Dukes Analysis of Severe Accident Mitigation Alternatives.174 Therein, Petitioners assert that Duke does not comply with 10 C.F.R. § 51.53(c)(3)(iv) because the ER allegedly does not address three items, which Petitioners characterize as new and significant information: (1) unspecified Duke risk analyses, (2) the 2011 NRC Evaluation, and (3) certain mitigative measures briefly mentioned in the Mitman Declaration.175 As detailed below, this proposed contention should be rejected for lack of factual or legal support and also for the same reasons as Proposed Contention 2principally, because it faults the ER for failing to consider bounding and worst case accident scenarios, which NEPA does not require.
173 Petitioners do not explicitly claim that Mr. Mitmans attempted calculation of best estimate CDF constitutes NSI. But even if they had, that claim would be inadmissible for the same reasonbecause his calculation is a worst case or bounding scenario not required under NEPA and inappropriate for NEPA analysis. See supra Section II.D.2. Likewise, Mr. Mitmans claim that Duke has not considered flooding from overtopping and seismic events is counterfactual and cannot support an admissible contention. See supra Section II.D.3.
174 Petition at 16 (emphasis added).
175 Id. at 16-17.
38
- 1.
Proposed Contention 3 Is Inadmissible for the Same Reasons That Proposed Contention 2 Is Inadmissible Proposed Contention 3 largely repeats the same arguments and suffers from the same fundamental defects as Proposed Contention 2. Namely, Proposed Contention 3 also fails to engage with the definition of NSI, fails to specify the risk analyses it claims to be NSI, and because the 2010 Licensee Evaluation and 2011 NRC Evaluation decidedly are not NSI.
Proposed Contention 3 also appears to rely on the same implied assertion advanced in Proposed Contention 2 that there exists some obligation under NEPA to evaluate bounding severe accident scenarios.176 As discussed above, that is incorrect as a matter of settled law.177 Accordingly, the Applicant incorporates by reference here its answer to Proposed Contention 2 and asserts that Proposed Contention 3 should be rejected for the same reasons.
- 2.
Petitioners Unsupported Assertion that the 2011 NRC Evaluation Requires Actions and Establishes New SAMAs Is Factually and Legally Unsupported and Incorrect Petitioners claim that the 2011 NRC Evaluation required Duke to implement certain measures for protection against a random (i.e., sunny day) Jocassee Dam failure as a matter of providing adequate protection,178 and that those safety measures somehow became SAMAs under Part 51.179 As explained above in Section II.D, Petitioners entire premise is counterfactual because the 2011 NRC Evaluation imposes no obligations on Duke. Moreover, all mitigating measures required by the CAL have, in fact, been implemented, and all actions required to be taken by Duke have been completed and verified by the NRC.180 Petitioners 176 Compare id. at 14 with id. at 16 (identifying the same bounding analyses as alleged NSI).
177 Holtec, CLI-20-4, 91 NRC at 180 (NEPA does not require a worst case analysis for potential accident consequences).
178 Petition at 16.
179 Id. at 16-17.
180 See supra Section II.C.
39 assertion to the contrary is unsupported and fails to raise a genuine dispute on a material issue of law or fact, and therefore is inadmissible under 10 C.F.R. § 2.309(f)(1)(v)-(vi).
- 3.
Petitioners Offer No Explanation as to Why or How the Mitigative Measures Briefly Mentioned in the Petition and Mitman Declaration Somehow Qualify as NSI Under the Applicable Standards in NEI 17-04, Rev. 1 In his Declaration, Mr. Mitman makes a passing reference to what he calls ways to reduce the flood hazard from Oconee, namely:
preemptively shutting down the reactors when reservoir water levels get too high, lowering the water levels in the lake behind the Jocassee and Keowee Dams, or lowering the crest elevation of some of the surround[ing] earthworks such that they overtop before the Jocassee Dam, thus lowering the flood impacts at [Oconee].181 Neither Mr. Mitman nor Petitioners provide any further discussion or explanation regarding these off-the-cuff suggestions, much less how or why these musings somehow could satisfy the definition of SAMA NSI. Indeed, in the SAMA context, NSI is screened through a 3-stage process outlined in NEI 17-04 using PRA risk insights and/or risk model quantifications, among other things, to estimate the percent reduction in the maximum benefit associated with a particular SAMA.182 Neither Mr. Mitman nor Petitioners offer such an analysis here regarding their casual recommendations. Indeed, it does not appear that Petitioners or Mr. Mitman acknowledge the extensive mitigative measures that Duke has already implemented in response to the CAL and the NRCs post-Fukushima requirements.183 Petitioners fail to engage with this relevant information, much less explain why anything more is required, particularly given the NRCs acceptance of the 2015 FHRR. Accordingly, this information lacks the requisite basis, 181 Mitman Decl. at 24-25.
182 See generally NEI 17-04 (executive summary at PDF page 2).
183 See, e.g., CAL Closeout Letter (NRCs inspection confirming completion of numerous mitigative actions taken by Duke).
40 specificity, materiality, or support for an admissible contention, and fails to raise a genuine dispute with the application, as required by 10 C.F.R. § 2.309(f)(1)(i)-(ii) and (iv)-(vi).
V.
CONCLUSION As established above, Petitioners have not satisfied the Commissions stringent waiver standard. Accordingly, the Board should DENY the Waiver Request. Additionally, regardless of whether the Waiver Request is granted, Petitioners have not proposed an admissible contention. Therefore, the Board also should DENY the Hearing Request.
Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)
Tracey M. LeRoy, Esq.
DUKE ENERGY CORPORATION 4720 Piedmont Row Drive Charlotte, NC 28210 (704) 382-8317 tracey.leroy@duke-energy.com Executed in Accord with 10 C.F.R. § 2.304(d)
Paul M. Bessette, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-5796 paul.bessette@morganlewis.com Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-5274 ryan.lighty@morganlewis.com Counsel for Duke Energy Carolinas, LLC Dated in Washington, DC this 22nd day of October 2021
DB1/ 124645847 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
DUKE ENERGY CAROLINAS, LLC (Oconee Nuclear Station, Units 1, 2 and 3)
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Docket Nos. 50-269-SLR 50-270-SLR and 50-287-SLR October 22, 2021 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing Applicants Answer Opposing Request for Hearing, Petition to Intervene, and Petition for Waiver Submitted by Beyond Nuclear and Sierra Club was served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned docket.
Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-5274 ryan.lighty@morganlewis.com Counsel for Duke Energy Carolinas, LLC