ML24337A222

Corrected Hearing Request and Petition to Intervene by Beyond Nuclear and Sierra Club - Redacted

ML24337A222
Person / Time
Site:	Oconee
Issue date:	05/01/2024
From:	Curran D Beyond Nuclear, Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP, Sierra Club
To:	NRC/SECY
References
RAS 57001, 50-269-SLR-2, 50-270-SLR-2, 50-287-SLR-2
Download: ML24337A222 (1)

Text

Corrected May 1, 2024 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE SECRETARY In the Matter of

)

Duke Energy Carolinas, LLC

) Docket Nos. 50-269/270/287 SLR-2 Oconee Nuclear Station,

) April 29, 2024 Units 1, 2 & 3

)

HEARING REQUEST AND PETITION TO INTERVENE BY BEYOND NUCLEAR AND SIERRA CLUB I.

INTRODUCTION Pursuant to 10 C.F.R. § 2.309(f), the hearing notice published at 89 Fed. Reg. 10,107 (Feb. 13, 2024), and the Commissions Order of March 28, 2024, Petitioners Beyond Nuclear, Inc. (Beyond Nuclear) and the Sierra Club, Inc. (Sierra Club) hereby petition to intervene and request the U.S. Nuclear Regulatory Commission (NRC or Commission) to grant a hearing on the NRCs Draft Site-Specific Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 2, Second Renewal Regarding Subsequent License Renewal for Oconee Nuclear Station Units 1, 2 and 3 (Feb. 2024) (Draft SEIS). The NRC prepared the Draft SEIS to support Duke Energy Corp.s (Dukes) application for subsequent license renewal (SLR) of the operating license for the Oconee Units 1, 2 and 3 nuclear power plant. If Dukes application is granted, it will be allowed to operate Oconee Units 1, 2 and 3 for an additional twenty years beyond its current renewed operating license term, or until 2053-54.1 Petitioners contend that the NRC should not approve subsequent renewal of Dukes operating license because the Draft SEIS is inadequate to satisfy the requirements of the National 1 The NRC issued operating licenses for Oconee Units 1, 2, and 2 in 1973 and 1974, and renewed those licenses in 2000. 2021 Environmental Report (ML121158A196) at 1-1. Currently, the operating licenses for Units 1 and 2 will expire in 2033, and the operating license for Unit 3 will expire in 2034. Id.

2 Environmental Policy Act for a hard look at the environmental consequences of re-licensing the Oconee reactors.2 This Hearing Request is supported by the attached declaration and Expert Report of Jeffrey T. Mitman. See Declaration of Jeffrey T. Mitman in Support of Beyond Nuclears and Sierra Clubs Hearing Request (April 29, 2024) (Mitman Declaration) (Attachment 1 to this Hearing Request); and Mr. Mitmans Expert Report, NRC Relicensing Crisis at Oconee Nuclear Station: Stop Duke From Sending Safety Over the Jocassee Dam: Updated Analysis of Neglected Safety, Environmental and Climate Change Risks (April 2024) (Mitman Report or Expert Report) (Exhibit 1 to Mitman Declaration). Mr. Mitmans expert report updates an expert he filed on behalf of Petitioners in the first SLR proceeding for the Oconee reactors in 2021.3 II.

PETITIONERS HAVE STANDING TO REQUEST A HEARING.

Pursuant to 10 C.F.R. § 2.309(d), a request for a hearing must address: (1) the nature of the petitioners right under the Atomic Energy Act to be made a party to the proceeding, (2) the nature and extent of the petitioners property, financial, or other interest in the proceeding, and (3) the possible effect of any order that may be entered in the proceeding on the petitioners interest. The Atomic Safety and Licensing Board (ASLB) has summarized these standing requirements as follows:

In determining whether a petitioner has sufficient interest to intervene in a proceeding, the Commission has traditionally applied judicial concepts of standing. Contemporaneous judicial standards for standing require a petitioner to demonstrate that (1) it has suffered or will suffer a distinct and palpable harm that constitutes injury-in-fact within the zone of interest arguably protected by the governing statutes (e.g., the Atomic Energy Act of 1954 and the National Environmental Policy Act of 1969); (2) the injury can fairly be traced to the challenged actions; and (3) the injury is likely to be redressed by a favorable 2 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).

3 See Mitman Report at 1.

3 decision. An organization that wishes to intervene in a proceeding may do so either in its own right by demonstrating harm to its organizational interests, or in a representational capacity by demonstrating harm to its members. To intervene in a representational capacity, an organization must show not only that at least one of its members would fulfill the standing requirements, but also that he or she has authorized the organization to represent his or her interests.4 As demonstrated below, each of the Petitioners has standing by virtue of organizational interests that fall within the zone of interests protected by the Atomic Energy Act and NEPA. By intervening in this proceeding, Petitioners seek to protect their members health and safety, as well as protection of the environment. They wish to ensure that Dukes operating license is not approved for a second renewal term unless and until Duke demonstrates full compliance with NEPAs requirements for protection of public health and the environment.

In addition, as also demonstrated below, each Petitioner organization has members and/or staff who live within 50 miles of Oconee Units 1, 2 and 3, whose interests in protecting their own health and the health of the environment would be adversely affected by extended operation of Oconee Units 1, 2 and 3 under an additional SLR term, and who have authorized Petitioners to represent their interests in this proceeding. Therefore, Petitioners have presumptive standing by virtue of the location of their members residences and property within 50 miles of the Oconee reactors.5 A. Standing of Beyond Nuclear Beyond Nuclear is a nonprofit, nonpartisan membership organization that aims to educate and activate the public about the connections between nuclear power and nuclear weapons and 4 Pacific Gas & Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), LBP-02-23, 56 N.R.C. 413, 426 (2002), petition for review denied, CLI-03-12, 58 N.R.C. 185 (2003).

5 Diablo Canyon, 56 N.R.C. at 426-27 (citing Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-01-06, 53 N.R.C. 138, 146, affd, CLI-01-17, 54 N.R.C. 3 (2001)).

4 the need to abolish both to protect public health and safety, prevent environmental harms, and safeguard our future. Beyond Nuclear advocates for an end to the production of nuclear waste and for securing the existing reactor waste in hardened on-site storage until it can be permanently disposed of in a safe, sound, and suitable underground repository. For more than fifteen years, Beyond Nuclear has worked toward its mission by regularly intervening in NRC licensing, relicensing, and other proceedings related to nuclear safety matters.

Beyond Nuclears representational standing to participate in this proceeding is demonstrated by the attached Declaration of Gordon Crain (April 26, 2024) (Attachment 2A);

Declaration of Ken Marsh (April 28, 2024) (Attachment 2B); Declaration of Jane F. Powell (April 24, 2024) (Attachment 2C); and Declaration of Frank M. Powell (April 24, 2024)

(Attachment 2D).

B. Standing of the Sierra Club Founded in 1892, the Sierra Club is a national environmental organization with 3.8 million members across the United States. The purposes of the Sierra Club are to explore, enjoy, and protect the wild places of the earth; to practice and promote the responsible use of the earths ecosystems and resources; to educate and enlist humanity to protect and restore the quality of the natural and human environment; and to use all lawful means to carry out these objectives.

The Sierra Clubs representational standing to participate in this proceeding is demonstrated by the attached declarations of its members: Declaration of Rosellen Aleguire (April 24, 2024)

(Attachment 2E); Declaration of Eunice Lehmacher (April 28, 2024) (Attachment 2F);

attachment of Kathy Crain (April 26, 2024) (Attachment 2G); and Declaration of Frank M.

Powell (April 24, 2024) (Attachment 2H).

5 III. PETITIONERS CONTENTIONS Below, Petitioners present their contentions challenging the adequacy of the NRCs Draft SEIS for subsequent renewal of the operating licenses for the Oconee reactors. As required by 10 C.F.R. § 2.309(f)(vi), these contentions provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact, including references to specific portions of the Draft SEIS that Petitioners dispute, as well as specific citations to documents that support Petitioners disputes with the Draft SEIS.

Contention 1: Erroneous, Incomplete and Misleading Information Regarding Whether Duke Has Provided the Oconee reactors with Adequate Protection From Failure of the Upstream Jocassee Dam A. Statement of Contention The NRC Staffs conclusion that accident impacts of continuing to operate the Oconee reactors are insignificant, i.e., SMALL (Draft SEIS at F-5), is based on the assertion that Duke has provided the Oconee reactors with adequate protection from accident risks caused by external events, such as failure of the upstream Jocassee Dam. In support of this assertion, the Draft SEIS relies heavily on a description of the scope, nature and outcome of the NRC Staffs review of seismic and flooding risks (i.e., external hazards) to Oconee, conducted between 2012 and 2020 in response to the catastrophic 2011 Fukushima Dai-Ichi accident in Japan. As stated in the Draft SEIS:

In Section 4.15.1.2.1, Design-Basis Accidents, of its ER, Duke Energy summarized the site-specific requirements needed to operate a nuclear power facility, such as the Oconee Station safety analysis report (Duke Energy 2020-TN9001). The Oconee Station safety analysis report presents the design criteria and design information for Oconee Station. The Oconee Station safety analysis report also discusses various hypothetical DBAs and the safety features designed to prevent and mitigate accidents. A number of the postulated accidents are not expected to occur during the life of the plant but are evaluated to establish the design basis for the preventive and mitigative safety systems of the facility. The acceptance criteria for DBAs are described in 10 CFR Part 50 and 10 CFR Part 100. The

6 NRC has reviewed Oconees design basis on several occasions following the issuance of the initial operating licenses.

[An] example of NRCs review of Oconee Station design-basis is its review of external hazards information for all operating power reactors, including Oconee, as ordered by the Commission following the Fukushima accident. On November 17, 2020, the NRC staff completed its review for Oconee Station and concluded that no further regulatory action (sic) were needed to ensure adequate protection or compliance with regulatory requirements, including site-specific external hazards information, re-confirming the acceptability of Oconee Stations design basis (NRC 2020-TN8995).6

1. Reliance on erroneous, incomplete and misleading information The Draft SEIS assertion is based on erroneous, incomplete and misleading information.

Therefore, because the Draft SEIS bases its conclusion of insignificant environmental impacts on an unsupported claim that the reactors are adequately protected against flooding risks caused by failure of the Jocassee Dam, the Draft SEIS is inadequate to satisfy NEPAs requirement for a hard look at the environmental impacts of the proposed second license renewal decisions.7 In addition, the Draft SEIS fails to satisfy NEPA because it omits any discussion of the environmental significance of an outstanding 2011 Safety Evaluation establishing a minimum flood height that safety equipment must be protected against and also prescribed measures for 6 Draft SEIS at F F-4 (citing letter from R.J. Bernardo, NRC to J.E. Burchfield, Jr., Duke re:

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) (NRC 2020-TN8995) (NRC 11/17/20 Letter)).

7 Robertson, 490 U.S. at 349. The hallmarks of a hard look are thorough investigation into environmental impacts and forthright acknowledgment of potential environmental harms.

National Audubon Society v. Dept of Navy, 422 F.3d 174, 185 (4th Cir. 2005). The analysis must address both the probabilities of potentially harmful events and the consequences if those events come to pass. State of New York v. NRC, 681 F.3d 471, 479, 482 (D.C. Cir. 2012)

(rejecting environmental analysis of spent fuel pool fire risks because it did not consider consequences as well as probability of fires in spent fuel storage pools). Impacts must be quantified if possible, but may be addressed qualitatively, with consideration of uncertainties.

Limerick Ecology Action, 869 F.2d at 744 (lack of quantifiability does not necessarily preclude further consideration under NEPA.).

7 providing adequate protection against a flood caused by failure of the Jocassee Dam.8 The 2011 Safety Evaluation remains effective because the NRC has not repudiated the safety findings or requirements in the Safety Evaluation based on an evaluation of whether adequate protection of public health and safety can be provided without those safety findings or measures. While the NRC Staff claims to have closed the issues raised by the 2011 Safety Evaluation, the document relied on by the Staff for this purported closure does not use adequate protection language and therefore does not demonstrate that the NRC believes public health and safety is adequately protected in the absence of the requirements of the 2011 Safety Evaluation. 9 Because the Draft SEIS bases its conclusion of insignificant environmental impacts on an unsupported claim regarding adequate protection from flooding risks caused by failure of the Jocassee Dam, the Draft SEIS is inadequate to satisfy NEPA.

The Draft SEIS assertion that adequate protection of the Oconee reactors from external hazards is ensure[d] invokes Section 182(a) of the Atomic Energy Act, 42 U.S.C. § 2232(a),

requiring the [NRC] to ensure that the utilization or production of special nuclear material will 8 Mitman Report, § 2.6.4 (quoting Letter from Eric J. Leeds, NRC, to Preston Gillespie, Duke, re: 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) and Enclosed Safety Evaluation (Jan.

28, 2011) (ML103490330) (2011 Safety Evaluation). Petitioners note that the 2011 Safety Evaluation was previously posted on ADAMS but was recently removed from ADAMS.

Petitioners rely on quotations and paraphrasing of the 2011 Safety Evaluation as presented in documents that remain publicly available, such as Mr. Mitmans report and the ASLBs decision in LBP-22-01, 95 N.R.C. 49 (2021). See, e.g., 95 N.R.C. at 72-73.

9 Letter from Catherine Haney, NRC to Scott Batson, Duke re: Oconee Nuclear Station -

Confirmatory Action Letter Followup Inspection Report 050000269/2016009, 050000270/2016009, 05000287/2016009 (June 16, 2016) (ADAMS Accession No. ML16168Al76) (Haney Letter).

8

... provide adequate protection to the health and safety of the public.10 Adequate protection is the primary statutory standard relating to the [NRCs] mandate to ensure the safe operation of nuclear power plants.11 Thus, use of that phrase conveys a clear message that accident risks have been reduced to a level that is both acceptable under the Atomic Energy Act and insignificant or SMALL under NEPA.12 Under the Atomic Energy Act, no further action to reduce that acceptable level of risk is required; and under NEPA, the only required additional actions are disclosure of the impacts and consideration of alternatives to manage or avoid the residual risk of these unlikely accidents.13 Here, the Draft SEIS claim that the adequate protection standard has been satisfied with respect to flooding protection from external events such as Jocassee Dam failure is erroneous because it is not supported by any safety analysis of whether that statutory standard has been satisfied. Further, the Draft SEIS ignores the Staffs own documents that have concluded that failure of the Jocassee Dam is a credible accident that must be addressed by safety measures in order to provide adequate protection to public health and safety. Finally, by claiming that continued operation of the Oconee reactors satisfies the adequate protection standard, without 10 Union of Concerned Scientists v. NRC, 824 F.2d 108, 109 (D.C. Cir. 1987) (quoting 42 U.S.C.

§ 2232(a)).

11 Id., 824 F.2d at 109.

12 See Limerick Ecology Action v. NRC, 869 F.2d 719, 730 (3rd Cir. 1989) (noting overlap between concerns of Atomic Energy Act and NEPA); Citizens for Safe Power v. NRC, 524 F.2d 1291, 1292 (D.C. Cir. 1975) (Atomic Energy Act requirements may not be viewed separate and apart from NEPA considerations). See also Final Rule, Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 78 Fed. Reg. 37,282, 37,289 (June 20, 2013) (noting that the License Renewal GEIS is not the primary vehicle the NRC uses to address and regulate risks from severe accidents. The NRCs regulations and regulatory practices employ safety standards in the design, construction, and operation of nuclear power plants as well as risk models to ensure the public is adequately protected on an ongoing basis.

13 78 Fed. Reg. at 37,289.

9 acknowledging that the multiple documents it relies on provide no such conclusion, the NRC misleads other agencies, state and local governments, and the general public, lulling them into a false sense of security.

a. Incorrect claims with respect to design-basis review, legal effect of the 50.54(f) letter, and adequate protection findings Design-basis review. In the Draft SEIS, the NRC Staff cites the NRC 11/17/20 Letter for the proposition that the Staff reviewed the Oconee Station design-basis.14 But the NRC 11/17/20 Letter itself does not discuss or even refer to a design-basis review with respect to external flooding events at Oconee. And there is no evidence in the record of the NRCs post-Fukushima actions that such a review was done.

Submittal of external hazards information purportedly ordered by the Commission. The 50.54(f) letters cited in the Draft SEIS did not order the submittal of external hazards information. The information was request[ed] and therefore submittal was discretionary.15 Adequate Protection. The Draft SEIS also states that in the NRC 11/17/20 Letter, the NRC concluded that no further regulatory action (sic) were needed to ensure adequate protection or compliance with regulatory requirements.16 But the words adequate protection do not appear anywhere in the NRC 11/17/20 Letter, nor does the Letter address the question of whether the Oconee reactors comply with regulatory requirements for provision of adequate 14 Draft SEIS at F-4.

15 Letter from NRC to All Power Reactor Licensees and Construction Permit Holders re: 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 (March 12, 2012) (ML12053A340).

16 Id.

10 protection from flooding risks posed by failure of the Jocassee Dam. Nor do the references cited by the NRC 11/17/20 Letter contain any findings regarding adequate protection or compliance with regulations required for adequate protection. For instance:

At pages 8-10, the NRC 11/17/20 Letter contains a discussion of Dukes reevaluation of the flooding hazard to the Oconee reactors, which was requested by a 50.54(f) letter sent to all licensees on March 12, 2012.17 In this discussion, the NRC states that the local intense precipitation, rivers and streams, and dam failure flood-causing mechanisms were not bounded by the CDB [current design basis]. Therefore, additional assessments of these flood-causing mechanisms were required.18 According to the Letter:

The NRC staff used a graded approach to determine if this site would need to perform an IA [flooding integrated assessment] for the reevaluated flooding hazard, or if an FE [focused evaluation] would suffice. Based on the graded approach, Oconee completed an FE (Reference 6.20) to ensure appropriate actions were identified and taken to protect the plant from the reevaluated flood hazard.

The NRC staff conducted a regulatory audit (Reference 6.22), completed its review of the FE, and concluded in the staff assessment (Reference 6.21) that the licensee provided sufficient information in response to the 50.54(f) letter. Audit results were summarized in the staff assessment.19 Based on this information, the NRC concluded that: [n]o further regulatory actions are required related to the flood hazard reevaluations.20 This portion of the NRC 11/17/20 Letter does not support the Draft SEIS, because the words adequate protection appear nowhere in the discussion of the flooding reevaluation. Instead, the NRC simply stated that Duke had provided sufficient information in response to the 50.54(f) letter.21 17 See NRC 11/17/20 Letter at 1.

18 NRC 11/17/20 Letter at 9.

19 Id.

20 Id.

21 Id.

11 Nor do the words adequate protection appear in the Staff reference documents cited by the NRC 11/17/20 Letter in support of its conclusion that no further regulatory actions are required for Oconee.22 o For instance, Ref. 2.61, a Staff Assessment... Related to the Focused Evaluation for Oconee Nuclear Station, Units 1, 2, and 3 as a Result of the Reevaluated Flooding Hazard Near-Term Task Force Recommendation 2.1 contains the following

==

Conclusion:==

The NRC staff has concluded that the licensee performed the Oconee FE in accordance with the guidance described in NEI 16-05, Revision 1, as endorsed by JLD-ISG-2016-01, and that the licensee has demonstrated that effective flood protection exists from the reevaluated flood hazards.23 This conclusion does not state that flood protection is adequate to protect health and safety as the term is used in the Atomic Energy Act and the Draft SEIS -- only that it is effective. And the term effective is undefined.

o Similarly, Ref. 2.65, an NRC letter reporting on the NRC Staffs treatment of reevaluated flood hazard information, states that Oconee is included in Category 1, which:

Corresponds to sites where no additional regulatory action is warranted. This category includes sites that have all the flood hazard mechanisms bounded by the current design basis, or sites where the licensee has demonstrated that effective or feasible flood protection will address the unbounded reevaluated hazards. This means that both licensees and staff are finished with the 50.54(f) 22 Id. at 9 (citing Refs. 6.21 and 6.25).

23 Letter from Juan F. Uribe, NRC to Ed. Burchfield, Jr., Duke, re: 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), Enclosed Staff Assessment at 10 (June 18, 2018) (ML1814A755).

12 letter flooding reevaluation assessments and backfit decisions for these sites. 24 Ref. 2.65 contains no representations regarding adequate protection of public health and safety from flooding hazards posed by failure of the Jocassee Dam.

Again, the terms effective and feasible are undefined.

In fact, in the entire post-Fukushima review record for Oconee, no NRC document can be found that makes adequate protection findings with respect to the risk of flooding from failure of the Jocassee Dam or measures necessary to provide adequate protection from those risks. The only adequate protection findings relate to the adequacy of mitigation measures.25

b. Disregard of the Staffs own documents that have concluded that failure of the Jocassee Dam is a credible accident that must be addressed by safety measures in order to provide adequate protection to public health and safety.

The Draft SEIS also disregards a number of important facts and legal determinations that bear on the environmental impacts of re-licensing the Oconee reactors, including:

The fact that when the Oconee reactors were initially licensed by the NRC, neither Duke nor the NRC considered that failure of the Jocassee Dam was credible; and therefore, the NRC 24 Letter from Mary Jane Ross-Lee, NRC to The Licensees of Operating Power Reactors re:

Treatment of Reevaluated Flood Hazard Information Provided Under Title 10 of the Code of Federal Regulations 50.54(f) Regarding Recommendation 2.1 of the Near-Term Task Force Review of Insights From the Fukushima Dai-Ichi Accident, Encl. 1 at 4 (Aug. 20, 2019)

(ML19067A247).

25 The 11/17/20 Letter does make a finding that Duke complied with certain post-Fukushima orders, such as Order EA-12-049 for mitigation of beyond-design-basis events and Order EA 051 for spent fuel instrumentation. Id. at 5. And for each of these compliance findings, the NRC cited a safety evaluation. See Letter from Tony Brown, NRC, to Thomas D. Ray, Duke, re:

Oconee Nuclear Station, Units 1, 2, and 3 -- Safety Evaluation Regarding Implementation of Mitigating Strategies and Reliable spent Fuel Pool Instrumentation Related to Orders EA-12-049 and EA-12-051 (CAC Nos. MF0782, MF0783, MF0784, MF0785, MF0786, and MF0787) (Aug.

30, 2017) and enclosed Safety Evaluation (August 30, 2017) (M17202U791). But these safety findings are unrelated to the question of whether adequate protection has been demonstrated with respect to flooding risk due to failure of the Jocassee Dam.

13 did not require Duke to protect the reactors safety equipment against a flood caused by dam failure.26 The fact that in 2008, even before the Fukushima Dai-Ichi accident, the Staff had already issued a Section 50.54(f) letter to Duke, stating that while Duke was relying on walls constructed around the two ground-level entrances to the SSF [Standby Shutdown Facility] to provide sufficient protection against floods, an Inundation Study prepared by the Federal Energy Regulatory Commission (FERC) had predicted that a failure of the Jocassee Dam could result in a flood height of above grade.27 The fact that in 2009, the NRC remain[ed] concerned that Duke had not demonstrated that the Oconee units will be adequately protected in the event of a Jocassee Dam failure.28 The Staff also stated that Jocassee Dam failure is a credible event and needs to be addressed deterministically.29 The fact that in 2011, the Staff issued a Safety Evaluation concluding that the flood depth at the Oconee reactors needed to be raised to in order to ensure adequate protection.30 26 Mitman Report, § 2.3.2.

27 Letter from Joseph G. Giitter, NRC to Dave Baxter, Duke, re: 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). See also Mitman Report, § 2.6.2.

28 Id.

29 Letter from Joseph G. Giitter, NRC to Dave Baxter, Duke, re: Evaluation of Duke Energy Carolinas, LLC (Duke) September 26, 2008, Response to Nuclear Regulatory Commission (NRC) Letter Dated August 15, 2008, Related to External Flooding at Oconee Nuclear Station, Units 1, 2, and 3 (Oconeee) (TAC Nos. MD8224, MD8225, and MD8226) at 2 (April 30, 2009)

(ML09057077).

30 Mitman Report, § 2.6.4 (quoting 2011 Safety Evaluation).

14 The fact that as a result of the post-Fukushima review, the NRC has now approved lowering the flood depth to

, i.e., reducing the flood depth against which the SSF must be protected by and that the NRC has made no finding that this new flood depth (i.e.,

will provide adequate protection to public health and safety. 31 Yet, the Draft SEIS asserts that adequate protection of public health and safety from external hazards will be ensured during the proposed continued operation of the Oconee reactors.32 By relying on purported adequate protection findings to assert that the environmental impacts of continued operation of the Oconee reactors are SMALL, without actually demonstrating that any such findings were made, the NRC violates the cardinal rule that a NEPA analysis must show consideration of all relevant environmental concerns. State of New York, 681 F.3d at 476. Nothing in the record provided by the NRC here is relevant to the assertions of adequate protection that are made in support of the proposed finding that the environmental impacts of reactor accidents are SMALL. As discussed in the attached Mitman Declaration, these errors, omissions, and misleading statements have enormous safety and environmental significance because they obscure the fact that the NRC has failed to provide the basic level of protection to the Oconee reactors that is required by the Atomic Energy Act.33 31 Letter from Scott L. Batson, Duke to NRC re: Supplemental Information Regarding NRC 2008 and 2012 Requests for Information Pursuant to 10 CFR 50.54(f) Pertaining to External Flooding at Oconee Nuclear Station (ONS), Enclosure, Table D at 7 (March 6, 2015) 32 Draft SEIS at F-5.

33 These issues are discussed at length in the introduction to Mr. Mitmans report and in Sections 2, 3.1 and 4.

15

2. Omission of discussion of relevant factor affecting outcome of environmental analysis: abandonment of 2011 Safety Evaluation without making new adequate protection findings In addition, the Draft SEIS fails to satisfy NEPA because it omits any discussion of the environmental significance of the outstanding 2011 Safety Evaluation establishing a minimum flood height that safety equipment must be protected against and also prescribed measures for providing adequate protection against a flood caused by failure of the Jocassee Dam.34 This is a relevant environmental concern, State of New York, 681 F.3d at 476, because the NRC relies on its safety reviews for nuclear reactor licensing decisions as the basis for its environmental findings. See discussion above in Subsection 1.

The 2011 Safety Evaluation remains effective because the NRC has not repudiated the safety findings or requirements in the Safety Evaluation based on an evaluation of whether adequate protection of public health and safety can be provided without those safety findings or measures.35 Because the NRC has not repudiated the 2011 Safety Evaluation or made new adequate protection findings for the reduced flood height and altered measures for responding to that flood height, the 2011 Safety Evaluation remains an open and unresolved safety issue for which the NRC is unable to vouch for the adequate protection of the Oconee reactors from accident risks. The effect of that significant gap or deficit in the NRCs safety-based regulatory program on the NRCs ability to make a finding that the environmental impacts of accidents are insignificant or SMALL must be addressed in the Draft SEIS.

34 Mitman Report, § 2.6.4 (quoting 2011 Safety Evaluation).

35 As discussed above, while the NRC Staff claims to have closed the issues raised by the 2011 Safety Evaluation, the document relied on by the Staff for this purported closure does not use adequate protection language and therefore does not demonstrate that the NRC believes public health and safety is adequately protected in the absence of the requirements of the 2011 Safety Evaluation. See Haney Letter.

16 B. Basis Statement The documents and authorities on which Petitioners rely for this contention are set forth in the contention itself. They include the Mitman Report, the documentary record of the NRCs safety review and post-Fukushima reviews for Oconee, the statements made by the NRC in the Draft SEIS, the Atomic Energy Act, NEPA, and implementing case law.

C. Demonstration that the Contention is Within the Scope of the Proceeding This contention is within the scope of this proceeding because it challenges the adequacy of the Draft SEIS compliance with NEPA, a requirement for approval of Dukes SLR application.

D. Demonstration that the Contention is Material to the Findings NRC Must Make to Renew Dukes Operating License This contention is material to the findings NRC must make to renew Dukes operating license because NEPA requires that the NRC must make findings regarding the impacts of the proposed re-licensing action and reasonable alternatives to the proposed action.

E. Concise Statement of the Facts or Expert Opinion Supporting the Contention, Along with Appropriate Citations to Supporting Scientific or Factual Materials The facts and expert opinion on which Petitioners rely are set forth in the Statement of Contention above and in the expert report of Jeffrey Mitman.

CONTENTION 2: Draft SEIS Risk Estimates Fail to Meet NEPA Requirements for Rigor, Accuracy, Completeness, and Consideration of Uncertainties A. Statement of Contention In addition to the deficiencies described above in Contention 1, the Draft SEIS is deficient in other significant respects, which result in the significant understatement of accident risk. These deficiencies, as set forth in Section 3.2 of Mr. Mitmans expert report, include an inaccurate all hazards core damage frequency (CDF) estimate (Section 3.2.1), significantly underestimating the

17 probability of a large containment failure from fire (Section 3.2.2), making an unsupported assumption regarding the margin for population dose due to seismic events (Section 3.2.3),

underestimating risk by failing to aggregate changes in risk (Section 3.2.4), and relying on an invalid assumption that studies of boiling water reactors and Westinghouse pressurize water reactors are applicable to the Oconee reactors (Section 3.2.5). In addition, the Draft SEIS fails to address uncertainties, in violation of NEPA and NRC guidance for probabilistic risk assessments.

See Limerick Ecology Action, 869 F.2d at 744 and NRC guidance cited in Mitman Report, Section 3.3.

B. Basis Statement Petitioners rely for this contention on Mr. Mitmans Declaration and expert report, as well as the requirements set forth in note 7 above for a hard look at environmental impacts of a proposed action.

C. Demonstration that the Contention is Within the Scope of the Proceeding This contention is within the scope of this proceeding because it challenges the adequacy of the Draft SEIS compliance with NEPA, a requirement for approval of Dukes SLR application.

D. Demonstration that the Contention is Material to the Findings NRC Must Make to Renew Dukes Operating License This contention is material to the findings NRC must make to renew Dukes operating license because NEPA requires that the NRC must make findings regarding the impacts of the proposed re-licensing action and reasonable alternatives to the proposed action.

E. Concise Statement of the Facts or Expert Opinion Supporting the Contention, Along with Appropriate Citations to Supporting Scientific or Factual Materials The facts and expert opinion on which Petitioners rely are set forth in the Statement of Contention above and in the expert report of Jeffrey Mitman.

18 CONTENTION 3: Draft SEIS fails to address the effects of climate change on accident risk.

A. Statement of Contention The Draft SEIS fails to satisfy NEPA or NRC implementing regulation 10 C.F.R. § 51.71 because it does not address the effects of climate change on accident risk. As set forth in Section 3.4 of Mr. Mitmans expert report, increased frequency and severity of extreme weather events is inevitable, as agreed by multiple federal agencies. And therefore, climate change will inevitably affect the likelihood and severity of reactor accidents.

Consideration of climate change effects is particularly important for Oconee, which was never designed to withstand a significant flood from failure or overtopping of the Jocassee Dam.

Because climate change effects are reasonably foreseeable and potentially significant, they must be considered. State of New York, State of New York, 681 F.3d at 476. While the NRC asserts that it plans to address climate change risks in the future (Draft SEIS at 3 3-36), this does not excuse the agency from addressing the risks of climate change in this licensing decision as they are understood at this time. Only if the NRC can say that the effects of climate change are so small as to be remote and speculative can it avoid addressing those effects in its environmental review.36 B. Basis Statement Petitioners rely for this contention on Section 3.4 of Mr. Mitmans expert report, the authorities cited in his report, and State of New York v. NRC, 681 F.3d at 478.

36 681 F.3d at 478.

19 C. Demonstration that the Contention is Within the Scope of the Proceeding This contention is within the scope of this proceeding because it challenges the adequacy of the Draft SEIS compliance with NEPA, a requirement for approval of Dukes SLR application.

D. Demonstration that the Contention is Material to the Findings NRC Must Make to Renew Dukes Operating License This contention is material to the findings NRC must make to renew Dukes operating license because NEPA requires that the NRC must make findings regarding the impacts of the proposed re-licensing action and reasonable alternatives to the proposed action.

E. Concise Statement of the Facts or Expert Opinion Supporting the Contention, Along with Appropriate Citations to Supporting Scientific or Factual Materials The facts and expert opinion on which Petitioners rely are set forth in the Statement of Contention above and in the expert report of Jeffrey Mitman.

IV.

CONCLUSION For the foregoing reasons, Petitioners Hearing Request and Petition to Intervene should be granted.

Respectfully submitted,

__/signed electronically by/___

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

1725 DeSales Street N.W., Suite 500 Washington, D.C. 20036 240-393-9285 dcurran@harmoncurran.com April 29, 2024 Corrected May 1, 2024

20 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE SECRETARY In the Matter of

)

Duke Energy Carolinas, LLC

) Docket Nos. 50-269/270/287 SLR Oconee Nuclear Station,

)

Units 1, 2 & 3

)

CERTIFICATE OF SERVICE I certify that on April 29, 2024, I posted on the NRCs Electronic Information Exchange HEARING REQUEST AND PETITION TO INTERVENE BY BEYOND NUCLEAR AND SIERRA CLUB, including:

Attachment 1 (Declaration of Jeffrey T. Mitman) o Exhibit 1 to Mr. Mitmans Declaration (his Expert Report, NRC Relicensing Crisis at Oconee Nuclear Station: Stop Duke From Sending Safety Over the Jocassee Dam (April 2024))

o Exhibit 2 to Mr. Mitmans Declaration (curriculum vitae)

Attachments 2A through 2H (standing declarations).

___/signed electronically by/__

Diane Curran

21 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE SECRETARY In the Matter of

)

Duke Energy Carolinas, LLC

) Docket Nos. 50-269/270/287 SLR Oconee Nuclear Station,

)

Units 1, 2 & 3

)

CERTIFICATE OF SERVICE I certify that on May 1, 2024, I posted on the NRCs Electronic Information Exchange:

ERRATA TO HEARING REQUEST AND PETITION TO INTERVENE BY BEYOND NUCLEAR AND SIERRA CLUB; a corrected version of HEARING REQUEST AND PETITION TO INTERVENE BY BEYOND NUCLEAR AND SIERRA CLUB; and NOTICE OF APPEARANCE FOR DIANE CURRAN

/signed electronically by/

Diane Curran