ML24337A228

Reply by Beyond Nuclear and the Sierra Club to Oppositions to Hearing Request and Petition to Intervene - Redacted

ML24337A228
Person / Time
Site:	Oconee
Issue date:	06/07/2024
From:	Curran D Beyond Nuclear, Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP, Sierra Club
To:	Atomic Safety and Licensing Board Panel
References
RAS 57041, 50-269-SLR-2, 50-270-SLR-2, 50-287-SLR-2
Download: ML24337A228 (1)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of

)

Duke Energy Carolinas, LLC

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

) June 7, 2024 Units 1, 2 & 3

)

REPLY BY BEYOND NUCLEAR AND THE SIERRA CLUB TO OPPOSITIONS TO THEIR HEARING REQUEST AND PETITION TO INTERVENE I.

INTRODUCTION Pursuant to 10 C.F.R. § 2.309(i)(2), the March 28, 2024 Order of the Secretary of the U.S. Nuclear Regulatory Commission (NRC or Commission), the Atomic Safety and Licensing Boards (ASLBs) Memorandum and Order (Initial Prehearing Order) (May 8, 2024), and the ASLBs Memorandum and Order (Request to Address Impacts of Final Rule Applying Generic Environmental Impact Statement to Subsequent License Renewal Period)

(May 21, 2024), Petitioners Beyond Nuclear, Inc. (Beyond Nuclear) and the Sierra Club, Inc.

(Sierra Club) hereby reply to oppositions by Duke Energy Corp. (Duke) and the NRC Staff to Petitioners Hearing Request and Petition to Intervene (April 29, 2024, corrected May 1, 2024) (Hearing Request).1 With support by the expert declaration and technical report of nuclear engineer and risk analyst Jeffrey Mitman2, Petitioners contentions charge that the Draft 1 Applicants Answer to the Hearing Request and Petition to Intervene and Motion for Leave to Amend Contention 3 Filed by Beyond Nuclear and Sierra Club (May 6, 2024) (Duke Answer);

NRC Staff Answer in Opposition to Petition for Leave to Intervene Filed by Beyond Nuclear Inc.

and Sierra Club Inc. (NRC Staff Answer).

2 See Declaration of Jeffrey T. Mitman in Support of Beyond Nuclears and Sierra Clubs Hearing Request (April 29, 2024) (Mitman Declaration) (Attachment 1 to Petitioners 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

2 Supplemental Environmental Impact Statement (Draft SEIS)3 for the NRCs proposed decision to extend the operating licenses for Oconee Units 1, 2 and 3 (Oconee) for a twenty-year subsequent license renewal (SLR) term is inadequate because it provides erroneous, incomplete and misleading information regarding whether Duke has provided the Oconee reactors with adequate protection from failure of the upstream Jocassee Dam; because it contains accident risk estimates that fail to meet NEPA requirements for rigor, accuracy, completeness and consideration of uncertainties; and because it fails to address the effects of climate change on accident risk. Each of these categories of deficiencies is significant in its own right. Taken together, they show a level of inadequacy that is grossly unacceptable.

Neither Duke nor the Staff opposes Petitioners standing to participate in this proceeding.

But both parties oppose the admissibility of Petitioners contentions regarding omissions and inadequacies in the Draft SEIS. As discussed below in Section II, however, Dukes and the NRC Staffs arguments against admission of Petitioners contentions are without merit. The contentions should be admitted.

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 The Draft Oconee EIS is entitled: 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).

In their Hearing Request, Petitioners referred to the document as the Draft SEIS because of its designation as Supplement 2. As the NRC Staff Answer recognizes, however, the EIS is not actually a supplement. Therefore, henceforth, Petitioners will use the abbreviation Draft EIS.

3 II.

RESPONSE TO ASLB QUESTIONS IN MAY 21, 2024 MEMORANDUM AND ORDER Petitioners hereby respond to the questions posed by the ASLB in its May 21, 2024 Memorandum and Order, except for questions posed to the NRC Staff.

1. What is the applicability of the 2024 License Renewal Rule to this proceeding?

Because Duke elected to have the NRC prepare a site-specific EIS for its SLR application for the Oconee reactors, the 2024 License Renewal Rule does not apply to this proceeding.4 It would be unfair and prejudicial to Petitioners to apply the 2024 Rule to their contentions at any time in this proceeding, because they invested significant time and resources into this promised adjudicatory proceeding rather than in commenting on the Draft License Renewal GEIS.5

2. [omitted]

3. What is the relevance of the 2024 Rules Compliance Provision to this Proceeding?

It has no relevance because the Rule does not apply.

4. What is the status of the NRC Staffs Compliance with the 2024 Rule in This Proceeding?

The Staffs status of compliance is irrelevant because the 2024 Rule does not apply to this proceeding.

4 Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3), CLI-22-03, 95 N.R.C. 40 (2022). See also Florida Power and Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-22-02, 95 N.R.C. 26 (2022); Florida Power and Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP-24-03, __ N.R.C. __ (March 7, 2024).

5 See Statement of Policy on Conduct of Adjudications, CLI-98-12, 48 N.R.C. 18 (1998)

(Adjudication Policy Statement).

4

5. What impact does the 2024 Rule have on this proceeding relative to Petitioners contentions?

As discussed above, Petitioners do not believe the 2024 Rule should have any effect on Petitioners contentions in this proceeding.

III. PETITIONERS CONTENTIONS MEET NRC ADMISSIBILITY REQUIREMENTS.

A. Contention 1 is Admissible.

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) states:

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 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

5 requirements, including site-specific external hazards information, re-confirming the acceptability of Oconee Stations design basis (NRC 2020-TN8995). [citing 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))].

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. [citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989); National Audubon Society v. Dept of Navy, 422 F.3d 174, 185 (4th Cir. 2005); State of New York v. NRC, 681 F.3d 471, 479, 482 (D.C. Cir.

2012); Limerick Ecology Action, 869 F.2d 719, 730 (3d Cir. 1989)].

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 providing adequate protection against a flood caused by failure of the Jocassee Dam. [citing 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).] 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. [citing 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).] 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.

6 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... provide adequate protection to the health and safety of the public. [citing Union of Concerned Scientists v. NRC, 824 F.2d 108, 109 (D.C. Cir.

1987) (quoting 42 U.S.C. § 2232(a))]. Adequate protection is the primary statutory standard relating to the [NRCs] mandate to ensure the safe operation of nuclear power plants. [citing Union of Concerned Scientists, 824 F.2d at 109.] 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.

[citing Limerick Ecology Action v. NRC, 869 F.2d at 730; Citizens for Safe Power v.

NRC, 524 F.2d 1291, 1292 (D.C. Cir. 1975); Final Rule, Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 78 Fed. Reg. 37,282, 37,289 (June 20, 2013).] 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 risks of these unlikely accidents. [citing 78 Fed. Reg. at 37,289.]

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 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. [citing Draft EIS at F-4]. 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. [citing 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) (50.54(f) Letter].

7 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. [citing 50.54(f) Letter]. 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 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. [citing NRC 11/17/20 Letter at 1]. 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. [citing NRC 11/17/20 Letter at 9]. 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.

[citing NRC 11/17/20 Letter at 9].

Based on this information, the NRC concluded that: [n]o further regulatory actions are required related to the flood hazard reevaluations. [citing NRC 11/17/20 Letter at 9]. 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. [citing NRC 11/17/20 Letter at 9].

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. [citing NRC 11/17/20 Letter at 9 (citing Refs. 6.21 and 6.25)].

8 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.

[quoting 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)].

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.

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) letter flooding reevaluation assessments and backfit decisions for these sites. [citing 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)].

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. [citing NRC 11/17/20 Letter; Letter from Tony

9 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)].

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 did not require Duke to protect the reactors safety equipment against a flood caused by dam failure. [citing Mitman Report § 2.3.2].

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.

[citing 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) (NRC 08/15/08 Letter); Mitman Report, § 2.6.2].

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. [citing NRC 08/15/08 Letter; Mitman Report, § 2.6.2]. The Staff also stated that Jocassee Dam failure is a credible event and needs to be addressed deterministically. [citing 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 (Oconee) (TAC Nos. MD8224, MD8225, and MD8226) at 2 (April 30, 2009) (ML09057077); Mitman Report, § 2.6.2].

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

10 ensure adequate protection. [citing Mitman Report, § 2.6.4 (quoting 2011 Safety Evaluation)].

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. [citing 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)]. 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. [citing Draft EIS at F-5].

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. [citing the introduction to Mr. Mitmans report and in Sections 2, 3.1 and 4].

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. [citing Mitman Report, § 2.6.4 (quoting 2011 Safety Evaluation)]. 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. [citing 2011 Safety Evaluation and Haney Letter].

11 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.

1. Dukes and the Staffs objections to the admissibility of Contention 1 have no merit.

Contention 1 asserts the following overarching legal and factual dispute with the Draft EIS:

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.

Petitioners contend that the Draft EIS 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.... 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.

While Duke and the Staff argue that Petitioners claims are baseless, they have failed to show that any of the following key facts relied on by Petitioners are incorrect:

First, Contention 1 demonstrates that the Draft EIS claim that the adequate protection standard has been satisfied with respect to flooding protection from external events such as Jocassee Dam failure is not supported by any safety analysis of whether that statutory standard has been satisfied. In page after page of their responses to Contention 1, neither Duke nor the

12 Staff cites any adequate protection finding with respect to whether the Oconee reactors are adequately protected from flooding risk.

Second, Contention 1 demonstrates that the only document to invoke the adequate protection standard is the 2011 Safety Evaluation, which required Duke to raise the flood protection level for the Standby Shutdown Facility (SSF) to in order to provide adequate protection from flooding. While Duke attempts to disparage the significance of the Safety Evaluation, it remains the only document to address the statutory standard of adequate protection or to articulate what is needed to provide it. All other review documents after 2011 use undefined terms as a substitute for adequate protection, such as effective and feasible.

But these words do not convey any message that the NRC has applied the statutory standard for providing a minimally safe level of protection as required by the adequate protection standard in the Atomic Energy Act.6 Duke and the Staff attempt to discount and disparage the legal and factual significance of the 2011 Safety Evaluation, stating that it does not impose any actual requirements and that it was superseded. But the 2011 Safety Evaluation is significant for the establishment of what the NRC views as necessary for adequate protection of Oconee from external flooding. Rather than demonstrating grounds for rejection of Contention 1, Dukes and the Staffs arguments demonstrate that the parties have a genuine and material legal and factual dispute.

Third, Contention 1 demonstrates 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 Despite this reversal of the adequate protection 6 See Union of Concerned Scientists v. NRC, 824 F.2d 108, 109 (D.C. Cir. 1987) (quoting 42 U.S.C. § 2232(a)) (cited in Hearing Request at 10).

13 finding in the 2011 Safety Evaluation, the NRC has made no subsequent finding that the 2011 Safety Evaluation was wrong or that this new flood depth of will provide adequate protection to public health and safety. Duke and the Staff are unable to controvert this legally significant fact.

Duke accuses Petitioners of failing to engage with the full post-Fukushima regulatory history for Oconee and cherry-picking the record.7 To the contrary, Petitioners have combed every document seeking some indication that the NRC applied the adequate protection standard when it lowered the flood height for Oconee from

. No such finding can be found. Thus, Duke is left to argue that adequate protection findings can be inferred from other phrases used in NRC Staff reviews, or from the fact that the 50.54(f) letter sent to licensees invoked the concept of adequate protection.8 Duke also attempts to discount the 2011 Safety Evaluation on the ground that it presented a highly conservative and bounding analysis of a hypothetical failure of the Jocassee Dam.9 In making this argument, Duke highlights Petitioners point: if the NRC Staff later found that an adequate protection finding could be made without such a highly conservative and bounding analysis, it could have said so in a follow-up safety evaluation. But it did not.

Therefore, it is reasonable to infer that measures the Draft EIS is passing off as ensuring adequate protection and thereby also ensuring impacts that are SMALL do not actually meet the adequate protection standard.

7 Duke Answer at 27-28.

8 See, e.g., Duke Answer at 19 (asserting that a statement by the NRC Staff that [n]o further regulatory actions are required is an [i]mplicit finding of adequate protection). This is a slim reed on which to base the reduction of a flood wall height by fourteen feet.

9 Duke Answer at 27.

14 Accordingly, Petitioners reasonably assert, in their admissible contention, that where a safety evaluation has identified flood protection measures needed for adequate protection of public health and safety, revocation or abandonment or those measures would require a follow-up safety evaluation and findings that public health and safety continues to be protected.

Otherwise, the Draft EIS has no grounds to assert that the environmental impacts of operating Oconee in a second license renewal term are SMALL because Duke has provided the Oconee reactors with adequate protection from external flooding.

2. The issues raised by Contention 1 are within the scope of this NEPA proceeding.

Both Duke and the NRC Staff argue that Contention 1 is inadmissible because it raises safety issues that are outside the scope of this NEPA proceeding.10 This argument is entirely without merit, because the Draft EIS itself cites the NRCs purported adequate protection findings as a key basis for its finding that the environmental impacts of external flooding at Oconee are SMALL.11 The NRC cant have it both ways, by relying explicitly on demonstrably incorrect safety assurances under the Atomic Energy Act for its NEPA findings, at the same time that it declares such assurances to be beyond the scope of issues that can be raised in challenging those findings. As long as the Draft EIS relies on an adequate protection finding for its finding of no significant impact, Petitioners are entitled to question whether such an adequate protection finding actually exists.

B. Contention 2 is Admissible.

Contention 2 (Draft EIS Risk Estimates Fail to Meet NEPA Requirements for Rigor, Accuracy, Completeness, and Consideration of Uncertainties) states:

10 Duke Answer at 26, 30-31, NRC Staff Answer at 18-24.

11 See Draft EIS at F-5.

15 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 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 3.3.12

1. Dukes objections to Petitioners manner of pleading Contention 2 have no merit.

Duke argues that Contention 2 is inadmissible because it fails to meet multiple pleading requirements. First, Duke argues that Contention 2s reliance on Mr. Mitmans technical report is inconsistent with Commission precedent prohibiting wholesale incorporation of more detailed analyses as alleged support for contention admissibility.13 But the cases cited by Duke do not support its argument. In Summer (CLI-10-01), the Commission observed that the petitioner had relied on an expert declaration, but did not fault the petitioner for that reliance per se. Instead, as quoted by Duke, the Commission held that the Licensing Board did not err in excluding portion of [a] contention where [the] expert report did not specifically challenge or expressly challenge the text of the relevant analysis.14 But Duke does not argue that Mr. Mitmans criticism of the Draft EIS lack specificity with respect to the Draft EIS, nor would such a charge 12 Hearing Request at 16-17.

13 Duke Answer at 32 (quoting S.C. Elec. & Gas Co. (Virgil Summer Nuclear Station, Units 2 &

3), CLI-10-01, 71 N.R.C. 1, 21-22 (2010) and citing Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant and Big Rock Point Site), CLI-22-08, 96 N.R.C. 1, 100 (2022) (citing Public Service Co. of N.H. (Seabrook Station, Units 1 and 2), CLI-89-03, 29 N.R.C. 234, 240-41 (1989)).

14 Duke Answer at 32 (quoting Summer (CLI-10-01), 71 N.R.C. at 21-22) (emphasis added by Petitioners).

16 be supportable. Each of Mr. Mitmans criticisms of the Draft EIS is explicitly directed at a specific portion of the Draft EIS.

Nor do the other cases cited by Duke support its position. In Palisades (CLI-22-08), the Commission refused to allow wholesale incorporation by reference of large documents as the basis for a contention.15 Mr. Mitmans Report is not large, and the contention specifically refers to specific portions of the Report. In Seabrook (CLI-89-03), the Intervenors submitted a late-filed contention that disputed decommissioning funding estimates without identifying evidence on which they rely in either the contention or the supporting expert declaration.16 Instead, the Intervenors referred to a petition under 10 C.F.R. § 2.758, asserting that [a]ll of the facts and assertions contained in [that] petition are incorporated by reference.17 These references were sizable and massive according to the Commission.18 Here, in contrast, Contention 2 explicitly incorporates clearly identified pages of Mr. Mitmans expert report.19 Duke is also incorrect in arguing that Contention 2 itself fails to explain the significance of Mr. Mitmans assertions, thereby rendering it inadmissible.20 Contrary to Dukes assertion, Contention 2 explicitly asserts that the Draft EIS contains multiple deficiencies that result in the 15 Palisades (CLI-22-08), 96 N.R.C. at 100 (emphasis added).

16 29 N.R.C. at 240.

17 Id.

18 Id.

19 Dukes suggestion that it was necessary to scour affidavits or other attachments to identify potential threshold admissibility arguments is absurd. See Duke Answer at 35. Contention 2 leads the reader directly to the discrete relevant sections of Mr. Mitmans expert report. Each of these sections provides a detailed explanation of how the Draft EIS underestimated accident risk, made erroneous assumptions, or failed to follow required protocols for risk assessments such as uncertainty analysis, thereby resulting in an underestimate of accident risk.

20 Duke Answer at 32 (citing S.C. Elec. & Gas Co. (Virgil Summer Nuclear Station, Units 2 &

3), LBP-10-06, 71 N.R.C. 350, 361 (2010).

17 significant understatement of accident risk.21 The title of the contention statement also asserts that the Draft EIS Risk Estimates Fail to Meet NEPA Requirements for Rigor, Accuracy, Completeness, and Consideration of Uncertainties.22 And Petitioners cite legal requirements for a hard look at environmental impacts.23 Petitioners thereby gave Duke adequate notice of their legal and factual claims.

Contrary to well-established Commission policy, Duke would turn the NRCs threshold admissibility requirements into a fortress to deny intervention.24 As the Commission has held, contentions will be ruled inadmissible only if they consist of bare assertions and speculations with no tangible information, no experts, no substantive affidavits.25 By furnishing... the reasoned opinion of a qualified expert regarding these technical inadequacies in the Draft EIS environmental analyses, Petitioners have satisfied the NRCs criteria for admission of Contention 2.26 21 Hearing Request at 16.

22 Id.

23 Hearing Request at 16-17 (citing Robertson, 490 U.S. at 349; and Limerick Ecology Action v.

NRC, 869 F.2d 719, 730 (3rd Cir. 1989)).

24 GPU Nuclear, Inc., Jersey Central Power & Light Co. and Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-00-06, 51 N.R.C. 193, 202 (2000) (quoting Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 N.R.C. 328, 335 (1999) (quoting Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3),

ALAB-216, 8 A.E.C. 13, 20-21 (1974). See also Fansteel, Inc. (Muskogee, Oklahoma Site),

CLI-03-13, 58 N.R.C. 195, 203 (2003) (the requirement for specificity and factual support is not intended to prevent intervention when material and concrete issues exist.).

25 Fansteel (CLI-03-13), 58 N.R.C. at 203.

26 U.S. Dept. of Energy (High-Level Waste Repository), LBP-09-06, 69 N.R.C. 367, 409 (2006)

(LBP-09-06).

18

2. Dukes and the Staffs objections to specific portions of the Mitman Report have no merit.

a. Inaccurate all hazards core damage frequency (CDF) estimate (Mitman Report § 3.2.1)

In Contention 2, Petitioners cite Section 3.2.1 of Mr. Mitmans Report for the proposition that the Draft EIS contains an inaccurate all hazards core damage frequency estimate.27 Duke argues that the Mitman Report does not support the contention because it does not dispute the accuracy of the Draft EIS values for all hazards CDF.28 But Mr. Mitman does indeed dispute the accuracy of the values presented by the Draft EIS. Dukes Answer only serves to confirm that the Draft EIS presents an outdated and inaccurately low value for all hazards CDF as if it is the current value. As Mr. Mitman points out, Table F-4 presents a value of 8.90E-5 as the SAMA All Hazards CDF. While footnote (b) to Table F-4 states vaguely that Data were obtained from the applicable plant-specific supplement to NUREG-1437 (without identifying which supplement or which revision of NUREG-1437 was relied on), the text directly below Table F-4 presents this value as the current value: As provided in Table F-4, the Oconee Station All Hazards CDF is less than the highest estimated Internal Events CDF from the 1996 LR GEIS (Indian Point 2).29 The Draft EIS then uses that outdated information to provide the assurance that the likelihood of an accident that leads to core damage, including accounting for the contribution from external events, is less for Oconee Station than the highest estimated Internal Events CDF used as the basis for the 1996 LR GEIS.30 27 Hearing Request at 16.

28 Duke Answer at 33.

29 Id. (lines 6-7).

30 Id. (lines 7-10).

19 In the next paragraph, the Draft EIS states that the Combined CDF (All Hazards) increased to 1.26E-4 per reactor-year.31 The reader is left to wonder how a value that is 8.90E-5 could have increased to 1.26E-4. The text of the Draft EIS does not explain that Table F-4 is outdated, and indeed relies on it as providing current and up-to-date information for the purpose of assuring the public that all hazards CDF for Oconee is low in proportion to internal hazards.

Mr. Mitman also points out the fallacy of comparing the updated all hazards CDF value of 1.24E-4 to the outdated internal CDF value of 3.5E-4 for Indian Point in Table F-4.32 As he notes, the NRC now has all hazards values of 6.1E-5 (mean) and 6.6E-5 (median), as reported in the Draft License Renewal GEIS of February 2023.33 Because the updated all hazards CDF for Oconee of 1.24E-4 is about twice as high as these values, the Draft EIS significantly understates accident risk. Thus, contrary to the Draft EIS, it does not represent the most up-to-date understanding of plant risk at the time the Draft EIS was prepared.34 Accordingly, Contention 2, with the support of Mr. Mitmans report, raises a genuine and material dispute regarding the accuracy of all hazards CDF values presented in the Draft EIS.

31 Id. (line 11).

32 Draft EIS at F-15 (lines 11-12).

33 Mitman Report at 34 (citing Draft Generic EIS for License Renewal, Rev. 2, Vol. 3 (Feb.

2024)). Contrary to the Staffs assertion at page 31, the Draft EIS failure to consider this data in the Draft License Renewal GEIS is a deficiency because the Draft EIS must - and indeed claims to -- consider the best available information. Thus, consideration of up-to-date data is not just a possible alternative approach but a requirement.

34 Draft EIS at F-15 (line 21).

20

b. Significant underestimate of probability of a large containment failure from fire (Mitman Report § 3.2.2) and unsupported assumption regarding the margin for population dose due to seismic events significant underestimate of probability of a large containment failure from fire (Mitman Report § 3.2.3)

In Sections 3.2.2 and 3.2.3, Mr. Mitman criticizes the Draft EIS use of an external event multiplier to calculate estimated population dose from fire and seismic events. As he points out, the use of a multiplier obscures and reduces the significantly greater contribution of fire to large early release frequency (LERF) values and the significantly greater contribution of containment failure probabilities to conditional containment failure probability (CCFP).35 Thus, contrary to the Staffs argument, Mr. Mitman raises a deficiency in the Draft EIS and not just a suggestion of other ways the analysis could have been done.36 Mr. Mitman has pointed to a deficiency in the Draft EIS and therefore the contention is admissible.37 Further, contrary to Dukes assertion at page 37, Mr. Mitman does not seek the use of a larger multiplier. What he seeks is to point out the lack of an adequate basis for the assumed margin in the population dose estimates.38 35 Mitman Report at 34-35.

36 NRC Staff Answer at 32-33 (citing Public Service Co. of N.H. (Seabrook Station, Units 1 and 2), CLI-12-05, 75 N.R.C. 301, 323 (2012).

37 Seabrook (CLI-12-05), 75 N.R.C. at 323.

38 Mitman Report at 35. Duke correctly notes that a quotation on page 35 of Mr. Mitmans Report is mistakenly attributed to the Draft EIS discussion of seismic events (Section 3.2.2) when in fact it appears in the discussion of fire events (Section 3.2.1). This typographical error is insignificant, because the language quoted by Mr. Mitman is exactly the same in both sections of the Draft EIS. Compare Draft EIS at F-19 (lines 16-19) with Draft EIS at F-21 (lines 38-41).

Essentially the same language is also found in Draft EIS at F-19 (lines 42-45).

21

c. Underestimating risk by failing to aggregate changes in risk (Mitman Report § 3.2.4)

In Section 3.2.4 of Mr. Mitmans report, he criticizes the Draft SEIS for evaluating accident scenarios in isolation rather than evaluating their compounding effects.39 To illustrate this under-estimate, he multiplies the risk factors that have changed between the 1996 License Renewal GEIS and the 1998 SAMA analysis. While Duke criticizes this method, Mr. Mitman makes it clear that the purpose is not to advocate the use of multiplication but to illustrate how seriously the NRC underestimates the compounding effects of accident risk by simply adding up the probabilities. This aspect of the contention thereby raises an admissible dispute with the Draft EIS.40

d. Relying on an invalid assumption that studies of boiling water reactor and Westinghouse pressurized water reactors are applicable to Oconee reactors (Mitman Report § 3.2.5)

In Section 3.2.5 of his report, Mr. Mitman criticizes the Draft EIS reliance on the State-of-the-Art Reactor Consequence Analysis (SOARCA) work, based on significant differences between the design of the Oconee reactors and the reactors studied by SOARCA.41 He asserts that given these differences, [w]ithout additional analysis it is unclear how any useful insights obtained from the SOARCA work is relevant to Oconee.42 Duke does not dispute the design differences identified by Mr. Mitman, but instead argues that he has failed to specifically identify the SOARCA insights he disputes or explain 39 Mitman Report at 36.

40 For this reason, the Staff is incorrect in arguing that Mr. Mitman is merely advocating an alternative analytical approach rather than identifying a deficiency in the Draft EIS. NRC Staff Answer at 32-34 (citing Seabrook (CLI-12-05), 75 N.R.C. at 323).

41 Mitman Report at 37.

42 Id.

22 why he disputes them.43 But Mr. Mitman explicitly cites page F-22 of the Draft EIS, which is studded with insights, including:

The SOARCA reports present results of an earthquake and station blackout in terms of individual latent cancer fatality risk and early (or prompt fatality risk. In summary, the mitigated scenarios show essentially zero risk of early fatalities from radiation exposure and result in very small risk of a long-term cancer fatality (NRC 2012-TN3092).

The unmitigated scenarios from SOARCA result in essentially zero risk (1E-14) of early fatality for an individual. Although these unmitigated scenarios result in core damage and release of radioactive material to the environment, the release is often delayed, which allows the population to take protective actions (including evacuation and sheltering).

Therefore, the public would not be exposed to concentrations of radioactive material in excess of NRC regulatory limits.

This result holds even when uncertainties are considered - all three uncertainty analyses continued to show extremely low risk of early fatalities.

For the unmitigated scenarios, the individual risk of a long-term cancer fatality is calculated to be very small, regardless of which distance interval (e.g., 0-10 mi, 0-20 mi, 0-50 mi) is considered. The result holds even when uncertainties are considered (NRC 2022-TN922).

Contrary to Dukes assertion, the Draft EIS contains no disclaimer whatsoever of the applicability of these insights to the Oconee reactors.44 Clearly, the Draft EIS relies on insights from the SOARCA studies to provide blanket assurances to the public that the risks of continuing to operate the Oconee reactors are very low, without acknowledging significant differences between the designs studied by SOARCA and the Oconee reactors that may affect those assurances. Petitioners do not need to prove their case, but to raise a genuine and material dispute, which they have done. This aspect of the contention is admissible.

43 Duke Answer at 42-43. The Staff makes a similar argument at 34-35.

44 See Duke Answer at 43 (citing Draft EIS at F-17).

23

e. Failure to address uncertainties (Mitman Report § 3.3)

In Section 3.3 of his report, Mr. Mitman asserts the Draft EIS is inadequate because it does not contain an uncertainty analysis that follows NRC guidance for evaluating uncertainties in probabilistic risk analysis (PRA).45 He explains why the uncertainty confidence bands used by the Draft EIS are inadequate to provide a reasonable estimate of uncertainties:

NRC Regulatory Guide 1.174, Rev. 1, An Approach for Using Probabilistic Risk Assessment in Risk-Informed Decisions on Plant-Specific Changes to the Licensing Basis, states that if total CDF is considerably greater than 1E-4 per reactor year, the NRCs focus in considering licensing actions should be on finding ways to decrease rather than increase the risk. [citing 2018.01, An Approach for Using PRA In Risk-Informed Decisions on Plant-Specific Changes to the Licensing Basis, Revision 3 (ML17317A256) (RG 1.174) Page 28]. As Dukes own SAMA results indicate (see their results in Table 1) the CDF values at 1.2E-4 for Oconee are above the RG 1.174 thresholds. Likewise, the LERF values of 1.9E-5 (Oconee Units 1 & 2) and 1.7E-5 (for Unit 3) exceed the RG 1.174 thresholds of 1E-5. [citing Reg. Guide 1.174 Page 28]. This is precisely the type of situation where uncertainty information should be taken into consideration. Based on my years of experience, it is reasonable to suspect that the 90 percent uncertainty confidence bands around the external hazards of fire, flood and seismic are around two or event three orders of magnitude. These deficiencies deserve serious consideration.46 And he also explains what would be needed for an adequate uncertainty analysis:

An adequate probabilistic risk analysis would include parametric uncertainty data on all input parameters and calculate the corresponding CDF and LERF with uncertainty bounds (e.g. a CDF or LERF of 1E-5 per year with a 90% confidence band of 1E-6 to 5E-5 per year). The analysis would then propagate those CDF and LERF values with their uncertainty bands through the Level 2 and Level 3 PRA evaluations ending with estimates of both prompt and latent cancer fatalities with uncertainty bands. Finaly, the analysis would compare that calculated values with their corresponding uncertainties against the decision thresholds, i.e., safety goals. But the Draft SEIS deficient and unacceptable as it never calculates probabilistic uncertainties. Therefore, it does not have a basis for confidence in its risk estimates for purposes of assessing environmental risk or compliance with safety goals.47 45 Mitman Report at 38-39.

46 Mitman Report at 39 (emphasis added).

47 Mitman Report at 38-39.

24 Duke argues that the NRCs regulatory guidance is non-mandatory.48 But it is well-established that they provide the agencys best technical guidance.49 Conformance with regulatory guides is likely to result in compliance with specific regulatory requirements, though nonconformance with such guides does not mean noncompliance with the regulations.50 While Duke and the Staff contend that the use of uncertainty bands is sufficient,51 Mr. Mitman has demonstrated that they are inadequate to satisfy NEPAs hard look standard.52 Therefore, Petitioners have presented an admissible contention.

C. Contention 3 is Admissible.

Contention 3 (Draft EIS fails to address the effects of climate change on accident risk) states:

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, 48 Duke Answer at 44, NRC Answer at 36-37. Dukes additional argument that regulatory guidance for uncertainty analysis in PRAs relating to safety is not applicable to environmental analysis Duke Answer at 43) is absurd, given Dukes own reliance for its environmental report on a PRA performed for safety purposes.

49 Curators of University of Missouri, CLI-95-08, 41 N.R.C. 386, 397 (1995). See also Gulf States Utilities Co. (River Bend Station, Units 1 & 2), ALAB-444, 6 N.R.C. 760 (1977); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-788, 20 N.R.C. 1102, 1161, 1169 (1984); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-91-39, 34 N.R.C. 273, 280-81 (1991).

50 Petition for Emergency & Remedial Action, CLI-78-6, 7 NRC 400, 406-07 (1978). See also Wrangler Laboratories et al., LBP-89-39, 30 N.R.C. 746, 756-57, 759 (1989), revd and remanded on other grounds, ALAB-951, 33 NRC 505 (1991).

51 Duke Answer at 44.

52 Hearing Request at 17 and 6 n. 7 (citing Robertson, 490 U.S. at 349)

25 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. [citing New York, 681 F.3d at 478].

1. Contention 3 is within the scope of this NEPA proceeding.

Duke and the NRC Staff argue that Contention 3 is not within the scope of this proceeding because the Commission has determined that the effects of climate change on a nuclear power plant are ongoing safety issues related to the current licensing basis (CLB) that are not within the scope of license renewal.53 But this argument fails in three key respects.

First, Dukes and the Staffs attempted distinction between issues covered by the Atomic Energy Act and issues covered by NEPA has no basis in fact or law. NEPAs concern for the quality of the human environment encompasses the public health and safety concerns of the Atomic Energy Act.54 And NEPA contains no exception for the Atomic Energy Act.55 Second, neither Duke nor the NRC Staff argues that climate change will have no reasonably foreseeable significant effect on the safety and environmental impacts of Oconees operation during a subsequent license renewal term. Indeed, given the widely held understanding that climate change will increase the frequency and severity of weather events on U.S.

53 Duke Answer at 50-52 (citing NRC Staff Answer at 39-40 (citing Pacific Gas and Elec. Co.

(Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-15-21, 82 N.R.C. 295, 304-05 (2015) and Draft EIS at 3-206).

54 For instance, 42 U.S.C. § 4331(b) establishes the continuing responsibility of the Federal Government to assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surrounding. See also Citizens for Safe Power v. NRC, 524 F.2d 1291, 1299 (D.C. Cir. 1975); Limerick Ecology Action, 869 F.2d at 729-31, for the proposition that the concerns of NEPA and the Atomic Energy Act overlap and yet impose independent procedural obligations).

55 Calvert Cliffs Coordinating Comm. v. AEC, 449 F.2d 1109, 1125 (D.C. Cir. 1971) (agencies must comply with NEPA unless their obligations are mutually exclusive).

26 infrastructure (including nuclear plants) in coming years, it would be unreasonable to make such an argument.56 Therefore, given the relevance of climate change to the safety and environmental impacts of prospective operation of Oconee during the SLR term, NEPA requires the NRC to take the effects of climate change on accident risk into account in the decision-making process for Oconee license renewal. The NRC may not shunt those considerations off into a different proceeding.57

2. Dukes and the Staffs other objections to Contention 3 have no merit.

Duke and the Staff argue that Contention 3 is inadmissible on a number of other grounds, none of which has merit.

First, Duke and the Staff argue that Petitioners do not identify the specific portion of the Draft EIS that is inadequate for failure to consider climate change impacts.58 But Petitioners cannot be required to criticize an analysis that does not exist. As the Commission has recognized, however, if a petitioner believes that a license application fails to contain information on a relevant matter as required by law, it is sufficient to identify each failure and the supporting reasons for the petitioners belief.59 In any event, Mr. Mitman explicitly addresses how 56 See Mitman Report at 40-41.

57 State of New York, 681 F.3d at 476 (holding that environmental effects that are reasonably foreseeable and potentially significant must be considered). See also Calvert Cliffs Coordinating Comm., 449 F.2d at 1117-18 (ruling that the NRC may not exclude relevant environmental considerations from the hearing process).

58 Duke Answer at 45-46, NRC Staff Answer at 43.

59 Duke Answer at 45. Duke asserts that Petitioners fail to identify the portion of NEPA or 10 C.F.R. § 51.71 that the Draft EIS does not comply with. Id. This argument is frivolous.

Contention 3 explicitly states that The Draft SEIS fails to satisfy NEPA or NRC implementing regulation 10 C.F.R. § 51.71 because it does not address the effects of climate change on accident risk. The language of the contention clearly invokes NEPAs requirement to consider the environmental effects of proposed federal actions and Section 51.71(d)s requirement that a draft EIS must contain a preliminary analysis which considers and balances the environmental and other effects of the proposed action.

27 consideration of climate change effects could have led to a finding of significantly increased accident risk at Oconee.60 Second, Duke argues that the Draft EIS does consider climate change, counting 104 times the phrase appears in the Draft EIS. Duke Answer at 47. But Duke does not point to any discussion of the effects of climate change on accident risk, which is the subject of Contention 3.

In fact, as noted by Mr. Mitman, the Draft EIS explicitly states that it will not address that issue.61 Finally, the Staff argues that the Report GAO-24-106326 by the Government Accountability Office (GAO), does not support Contention 3 in a variety of respects, including the fact that the GAO Report makes no explicit recommendation to consider climate changes effects on safety equipment in NEPA reviews, and that it does not make any recommendations with respect to Oconee.62 But the Staff overlooks the crucial findings of the GAO Report that:

a) Effects of natural hazards on nuclear plants are expected to be exacerbated by climate change; b) NRCs actions to protect nuclear plants from natural hazards in licensing and license renewal proceedings do not fully consider the potential increased risks from natural hazards that may be exacerbated by Climate Change; and c) without incorporating the best available information about climate change into licensing decisions, it is unclear whether the safety margins for nuclear plants 60 Mitman Report at 44-45.

61 Mitman Report at 40 (citing Draft EIS at 3-30 (lines 12-14).

62 NRC Staff Answer at 43-44. Notably, Duke does not address the relevance of GAO 106326.

28 established during the licensing period - in most cases over 40 years ago - are adequate to address the risks posed by climate change to nuclear plants.63 These statements by the GAO establish that climate change effects on Oconee safety equipment and accident risk are reasonably foreseeable and potentially significant. Therefore, Petitioners have presented an admissible contention.

IV.

CONCLUSION For the foregoing reasons, Dukes and the NRC Staffs objections to the admissibility of Petitioners contentions lack merit. Therefore, 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 June 7, 2024 63 Mitman Report at 40-41 (quoting GAO-24-106326 at 1, 34, and 39, respectively).

29 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of

)

Duke Energy Carolinas, LLC

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

)

Units 1, 2 & 3

)

CERTIFICATE OF SERVICE I certify that on Jun3 7, 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

30 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of

)

Duke Energy Carolinas, LLC

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

)

Units 1, 2 & 3

)

CERTIFICATE OF SERVICE I certify that on June 7, 2024, I posted on the NRCs Electronic Information Exchange REPLY BY BEYOND NUCLEAR AND THE SIERRA CLUB TO OPPOSITIONS TO THEIR HEARING REQUEST AND PETITION TO INTERVENE.

___/signed electronically by/__

Diane Curran