ML25080A344

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Duke Energy Carolinas, LLCs Brief in Opposition to the Appeal of LBP-25-01 Filed by Beyond Nuclear and the Sierra Club
ML25080A344
Person / Time
Site: Oconee  Duke Energy icon.png
Issue date: 03/21/2025
From: Bessette P, Leroy T, Lighty R, Mattison M
Duke Energy Carolinas, Duke Energy Corp
To:
NRC/OCM
SECY RAS
References
RAS 57323, 50-269-SLR-2, 50-270-SLR-2, 50-287-SLR-2, LBP-25-01
Download: ML25080A344 (0)
v • d • e


Text

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

DUKE ENERGY CAROLINAS, LLC (Oconee Nuclear Station, Units 1, 2, and 3)

Docket Nos. 50-269-SLR-2 50-270-SLR-2 50-287-SRR-2 March 21, 2025 DUKE ENERGY CAROLINAS, LLCS BRIEF IN OPPOSITION TO THE APPEAL OF LBP-25-01 FILED BY BEYOND NUCLEAR AND THE SIERRA CLUB RYAN K. LIGHTY, Esq.

PAUL M. BESSETTE, Esq.

MOLLY R. MATTISON, Esq.

MORGAN, LEWIS & BOCKIUS LLP TRACEY M. LEROY, Esq.

DUKE ENERGY CORPORATION Counsel for Duke Energy Carolinas, LLC

ii TABLE OF CONTENTS I.

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

BACKGROUND & LEGAL STANDARDS.................................................................... 2 A.

Procedural History................................................................................................. 2 B.

Legal & Regulatory Standards............................................................................... 6

1.

Hearing Requests & Contention Admissibility.......................................... 6

2.

Standard of Review on Appeal.................................................................. 7 III.

THE COMMISSION SHOULD AFFIRM LBP-25-01 BECAUSE PETITIONERS IDENTIFY NO ERROR OF LAW OR ABUSE OF DISCRETION................................ 9 A.

Petitioners Identify No Error of Law or Abuse of Discretion in the Boards Ruling on Proposed Contention 1.......................................................................... 9

1.

NRC Oversight of Adequate Protection............................................... 10

2.

The Board Properly Rejected Petitioners Selective Reading of the Relevant Regulatory History.................................................................... 12 B.

Petitioners Identify No Error of Law or Abuse of Discretion in the Boards Ruling on Proposed Contention 2........................................................................ 16 C.

Petitioners Identify No Error of Law or Abuse of Discretion in the Boards Ruling on Proposed Contention 3........................................................................ 20

1.

Petitioners Advocacy for Admitting Proposed Contention 3 as a Contention of Omission Provides No Grounds for Reversal................... 20

2.

Petitioners Advocacy for Admitting Proposed Contention 3 Because It Allegedly Identifies Potential Environmental Impacts Provides No Grounds for Reversal.......................................................... 24

3.

Petitioners Unremarkable Observation that the GEIS Does Not Govern This Proceeding Provides No Grounds for Reversal................ 26

4.

Petitioners Passing Commentary on CEQ Guidance and the GAO Report Provides No Grounds for Reversal.............................................. 27 IV.

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

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

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

CLI-09-9, 69 NRC 331 (2009)................................................................................................... 7 Crow Butte Res., Inc. (Marsland Expansion Area),

CLI-14-2, 79 NRC 11 (2014)................................................................................................. 8, 9 Crow Butte Res., Inc. (North Trend Expansion Project),

CLI-09-12, 69 NRC 535 (2009)................................................................................................. 7 Det. Edison Co. (Fermi Nuclear Power Plant, Unit 3),

LBP-09-16, 70 NRC 227 (2009)............................................................................................... 22 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-01-24, 54 NRC 349, 358 (2001)......................................................................................... 7 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-04-36, 60 NRC 631 (2004)................................................................................................. 8 Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2 & 3),

LBP-22-1, 95 NRC 49 (2022)....................................................................................... 10, 11, 14 Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, & 3),

CLI-22-3, 95 NRC 40 (2022)..................................................................................................... 2 Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, & 3),

LBP-25-01, 101 NRC __ (Jan. 17, 2025) (slip op.)........................................................... passim Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3),

CLI-99-11, 49 NRC 328 (1999)................................................................................................. 7 Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant),

CLI-15-23, 82 NRC 321 (2015)................................................................................................. 7 Fansteel, Inc. (Muskogee, Okla. Site),

CLI-03-13, 58 NRC 195 (2003)............................................................................................... 25 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4),

ALAB-952, 33 NRC 521 (1991).......................................................................................... 8, 23 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4),

CLI-91-13, 34 NRC 185 (1991)................................................................................................. 8 Fla. Power & Light Co. (Turkey Point Nuclear Generating Station, Units 3 & 4),

CLI-01-17, 54 NRC 3 (2001)................................................................................................... 20 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4),

CLI-22-2, 95 NRC 26 (2022)..................................................................................................... 2

iv Fla. Power & Light Co. (Turkey Point Nuclear Generating, Units 6 & 7),

CLI-17-12, 86 NRC 215 (2017)............................................................................................... 17 GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station),

CLI-00-6, 51 NRC 193 (2000)................................................................................................. 25 Hydro Res., Inc. (Crownpoint, NM),

CLI-06-1, 63 NRC 1 (2006)....................................................................................................... 8 Hydro Res., Inc. (Rio Rancho, NM),

CLI-04-33, 60 NRC 581 (2004)............................................................................................... 17 Interim Storage Partners, LLC (WCS Consol. Interim Storage Facility),

CLI-20-15, 92 NRC 491 (2020)................................................................................................. 8 Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4),

CLI-11-9, 74 NRC 233 (2011)................................................................................................... 7 Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4),

CLI-12-7, 75 NRC 379 (2012)................................................................................................... 7 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1),

CLI-12-5, 75 NRC 301 (2012)................................................................................................. 19 Paina Hawaii, LLC (Materials License Application),

LBP-06-12, 63 NRC 403 (2006)............................................................................................... 22 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation),

CLI-99-10, 49 NRC 318 (1999)................................................................................................. 7 Progress Energy Fla., Inc. (Levy Cty. Nuclear Power Plant, Units 1 & 2),

CLI-10-2, 71 NRC 27 (2010)............................................................................................... 7, 22 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2),

CLI-89-3, 29 NRC 234 (1989)........................................................................................... 21, 24 S. Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 & 4),

CLI-11-8, 74 NRC 214 (2011)................................................................................................. 29 Shieldalloy Metallurgical Corp. (Newfield, N.J. Facility),

CLI-07-20, 65 NRC 499 (2007)........................................................................................ passim USEC Inc. (Am. Centrifuge Plant),

CLI-06-10, 63 NRC 451 (2006)........................................................................................... 8, 22 Va. Elec. & Power Co. (North Anna Power Station, Unit 3),

LBP-08-15, 68 NRC 294 (2008)............................................................................................... 22 Va. Elec. and Power Co. (North Anna Power Station Units 1 & 2),

LBP-24-07, 100 NRC __ (July 10, 2024) (slip op.)..................................................... 21, 22, 25 Acts of Congress Administrative Procedure Act of 1946, Pub. L.79-404, 60 Stat. 237.......................................... 13 Atomic Energy Act of 1954, Pub. L. No.83-703, 68 Stat. 919.................................................... 10 National Environmental Policy Act of 1969, Pub. L. No.91-190, 83 Stat. 852 (1970)........... 2, 20

v Federal Statutes 42 U.S.C. § 2232........................................................................................................................... 10 42 U.S.C. § 4321 et seq................................................................................................................... 2 5 U.S.C. ch. 5, subch. I § 500 et seq............................................................................................. 13 Federal Register Notices Changes to Adjudicatory Process; Final Rule, 69 Fed. Reg. 2,182 (Jan. 14, 2004)....................... 7 Duke Energy Carolinas, LLC; Oconee Nuclear Station, Units 1, 2, & 3; Draft Site Specific Environmental Impact Statement; Request for Comment; Public Comment Meetings; Opportunity to Request a Hearing and to Petition for Leave to Intervene, 89 Fed. Reg. 10,107 (Feb. 13, 2024).......................................................................................... 3 Final Rule for Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467 (June 5, 1996).......................................................................... 17 National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions and Climate Change; Notice of Interim Guidance; Request for Comments, 88 Fed. Reg. 1,196 (Jan. 9, 2023)....................................................................................... 27, 28 Removal of National Environmental Policy Act Implementing Regulations, 90 Fed. Reg. 10,610 (Feb. 25, 2025)........................................................................................ 28 Renewing Nuclear Power Plant Operating LicensesEnvironmental Review; Final Rule and Guidance; Issuance, 89 Fed. Reg. 64,166 (Aug. 6, 2024)............................................. 4, 18 Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses; Final rule, 78 Fed. Reg. 37,282 (June 20, 2013)...................................................... 18 Federal Regulations 10 C.F.R. § 2.309............................................................................................................ 6, 8, 16, 21 10 C.F.R. § 2.311.................................................................................................................... 1, 7, 9 10 C.F.R. § 50.109........................................................................................................................ 10 10 C.F.R. § 51.71.......................................................................................................................... 22 10 C.F.R. § 54.21.......................................................................................................................... 20 10 C.F.R. § 54.29.......................................................................................................................... 20 10 C.F.R. Part 51......................................................................................................................... 2, 4 Other Authorities Letter from C. Haney, NRC, to S. Batson, Duke Energy Carolinas, Oconee Nuclear Station, Units 1, 2, & 3 - Confirmatory Action Letter Follow Up Inspection Report 05000269/2016009, 05000270/2016009, and 05000287/2016009 (June 16, 2016)

(ML16168A176)....................................................................................................................... 11 Letter from E. Leeds & M. Johnson, NRC, to All Power Reactor Licensees and Holders of Construction Permits in Active or Deferred Status, Request For Information Pursuant to Title 10 Of The Code Of Federal Regulations 50.54(F) Regarding Recommendations 2.1, 2.3, and 9.3, of the Near-Term Task Force Review of Insights from the Fukushima Dai-Ichi Accident (Mar. 12, 2012) (ML12053A340)............................ 11

vi Letter from E. Leeds, NRC, to P. Gillespie, Duke, Staff Assessment of Dukes Response to Confirmatory Action Letter Regarding Dukes Commitments to Address External Flooding Concerns at the Oconee Nuclear Station, Units 1, 2, and 3 (ONS) (TAC Nos.

ME3065, ME3066, and ME3067) (Jan. 28, 2011) (ML110280153).................... 10, 12, 13, 14 Letter from J. Davis & A. Boland, NRC, to S. Batson, Duke, Oconee Nuclear Station, Units 1, 2, & 3 - Staff Assessment of Response to Request for Information Pursuant to 10 CFR 50.54(f) Flood-causing Mechanisms Reevaluation (CAC Nos. MF1012, MF1013, and MF1014) and Path Forward on Confirmatory Action Letter (Apr. 14, 2016) (ML15352A207)............................................................................................. 11 Letter from R.J. Bernardo, NRC, to J.E. Burchfield, Jr., Duke, Oconee Nuclear Station, Units 1, 2, & 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)........................................................................................ 9, 12 Letter from S. Burns, NRC, to C. Lerner, OSC, OSC File No. DI-15-5254 (June 30, 2016)......................................................................................................................... 15 Letter from S. Snider, Duke, to NRC Document Control Desk, Duke Energy Carolinas, LLC; Oconee Nuclear Station, Units 1, 2, & 3; Application for Subsequent Renewed Operating Licenses (June 7, 2021) (ML21158A193)............................................................... 2 Letter from S. Snider, Duke, to NRC Document Control Desk, Duke Energy Carolinas, LLC; Oconee Nuclear Station, Units 1, 2, and 3; Application for Subsequent Renewed Operating Licenses - Appendix E Environmental Report Supplement 2 (Nov. 7, 2022)

(ML22311A036)......................................................................................................................... 3 Letter from T. Leavitt, OSC, to the President of the United States (Sept. 18, 2017)................... 16 Memorandum from C. Erlanger, NRC, to H. Nieh, NRC, Revision to the Regulatory Decision-Making Process for Reevaluated Flooding and Seismic Hazards for Operating Nuclear Power Plants (Mar. 2, 2020) (ML20043D958).................................. 11, 12 Memorandum from C. Safford, NRC, to R. Furstenau, NRC, Staff Requirements -

Affirmation Session, 9:30 A.M., Thursday, May 16, 2024 via Public Teleconference (May 16, 2024) (ML24137A164)............................................................................................... 4 NUREG-1409, Backfitting Guidelines, Draft Rev. 1 (Mar. 31, 2021)..................................... 13 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants - Final Report, Rev. 0 (May 1996)................................................. 2, 17, 18, 19 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants - Final Report, Rev. 1 (June 2013)............................................................. 2, 18 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants - Final Report, Rev. 2 (Aug. 2024)............................................................ 4, 18 NUREG-1437, Supp. 2, Second Renewal, Site-Specific Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Subsequent License Renewal for Oconee Nuclear Station, Units 1, 2, & 3; Draft Report for Comment (Feb. 2024)......... passim

I.

INTRODUCTION Pursuant to 10 C.F.R. § 2.311(b), Duke Energy Carolinas, LLC (Duke) submits this Brief in Opposition to the Appeal of LBP-25-01 (Appeal), filed by Beyond Nuclear and the Sierra Club (Petitioners).1 In LBP-25-01,2 the Atomic Safety and Licensing Board (Board) denied Petitioners April 29, 2024 (as corrected on May 1, 2024) hearing request and petition to intervene in this proceeding (Petition).3 Petitioners overarching claim on appeal is that the Commission should reverse LBP-25-01 because it fails to confront the facts and legal arguments presented in the Petition and fails to articulate the reasons for its conclusions on disputed issues.4 But the Appeal fails to identify any fact or legal argument advanced by Petitionersnot a single onethat the Board failed to consider. Nor does the Appeal identify a single conclusion in LBP-25-01 that is unaccompanied by a corresponding explanation. That Petitioners simply disagree with those conclusions provides no grounds for reversal. Ultimately, the Commission should AFFIRM LBP-25-01 because Petitioners identify no reason to disturb the Boards well-reasoned decision.

1 Notice and Brief of Appeal of LBP-25-01 of Petitioners Beyond Nuclear and The Sierra Club (Feb. 24, 2025)

(ML25055A287) (Appeal). Note: pin citations to the Appeal herein are to the Brief, not the Notice.

2 Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, & 3), LBP-25-01, 101 NRC __

(Jan. 17, 2025) (slip op.) (ML25022A279). Note: where both public and non-public versions of documents exist, references herein are to the publicly available versions.

3 See [Original] Hearing Request and Petition to Intervene by [Petitioners] (Apr. 29, 2024) (ML24337A217). to the original filing is the Declaration of Jeffrey T. Mitman, which, in turn, included Mr.

Mitmans Curriculum Vitae as Exhibit 1 and a report by Mr. Mitman as Exhibit 2. Attachment 2 to the original filing included eight standing declarations. On May 1, 2024, Petitioners filed a corrected version of their pleading, without any attachments (ML24337A222) (Petition). On May 15, 2024, Petitioners also submitted a corrected version of the report by Mr. Mitman (Exhibit 2 to Attachment 1 of the original filing)

(ML24337A224) (Mitman Report).

4 Appeal at 7-8.

2 II.

BACKGROUND & LEGAL STANDARDS A.

Procedural History Framework & Procedural History Through 2022: As part of its compliance with the National Environmental Policy Act of 1969, as amended (NEPA),5 the NRC has long evaluated certain environmental topics (those which are common to all reactor license renewals) in a Generic Environmental Impact Statement for License Renewal of Nuclear Plants (GEIS) and has codified its corresponding conclusions in 10 C.F.R. Part 51.6 The initial GEIS was issued in 1996 (1996 GEIS),7 and Revision 1 was issued in 2013 (2013 GEIS).8 In 2022, the Commission determined that its codified generic conclusions were applicable only to initial license renewal and needed to be reevaluated for applicability to subsequent license renewal (SLR).9 Dukes SLR application (SLRA) for Oconee Nuclear Station, Units 1, 2, and 3 (Oconee) was pending at the time of that determination.10 Accordingly, Duke and other SLR applicants were provided the option either to: (1) wait for an updated GEIS and corresponding rulemaking, or (2) evaluate the previously generic issues on a site-specific basis.11 5

National Environmental Policy Act of 1969, Pub. L. No.91-190, 83 Stat. 852 (1970) (codified as amended at 42 U.S.C. § 4321 et seq.).

6 See generally 10 C.F.R. Part 51, Subpart A, App. B, Table B-1.

7 NUREG-1437, [GEIS] - Final Report, Rev. 0 (May 1996) (Vol. 1, Main Report, ML040690705; Vol. 2, Appendices, ML040690738) (1996 GEIS).

8 NUREG-1437, [GEIS] - Final Report, Rev. 1 (June 2013) (Vol. 1, Main Report, ML13106A241; Vol. 2, Public Comments, ML13106A242; Vol. 3, Appendices, ML13106A244) (2013 GEIS).

9 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4), CLI-22-2, 95 NRC 26 (2022); Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, & 3), CLI-22-3, 95 NRC 40 (2022).

10 See Letter from S. Snider, Duke, to NRC Document Control Desk, [Duke]; [Oconee];... Application for Subsequent Renewed Operating Licenses (June 7, 2021) (ML21158A193) (together with its enclosures, the SLRA).

11 A more fulsome background and procedural history is summarized elsewhere and not repeated here. See

[Duke], Answer Opposing the [Petition] at 7-9 (May 31, 2024) (ML24152A213) (Duke Answer); Oconee, LBP-25-01, 101 NRC at __ (slip op. at 3-6.)

3 ER Supplement: Consistent with Option 2, Duke filed an Environmental Report Supplement on November 7, 2022.12 The NRC Staff then resumed its environmental review of Dukes SLRA for Oconee. In February 2024, the NRC issued a Draft Site-Specific Environmental Impact Statement (DSSEIS).13 The DSSEIS considers the impacts of all SLR issues applicable to [Oconee] SLR on a site-specific basis.14 Hearing Opportunity: After publication of the DSSEIS, the NRC published a hearing opportunity notice in the Federal Register.15 Petitioners filed their Petition on April 29, 2024, proposing three contentions.16 Proposed Contention 1 criticized the discussion of hypothetical Design Basis Accidents in the DSSEIS because it allegedly presented an incorrect summary of the plants regulatory history related to flooding hazards analyses.17 Proposed Contention 2 purported to challenge the discussion of hypothetical Severe Accidents in the DSSEIS based on six criticisms.18 And Proposed Contention 3 alleged the DSSEIS failed to address the effects of climate change on accident risk.19 Petitioners also submitted the Mitman Report as alleged support for their Petition.20 12 Letter from S. Snider, Duke, to NRC Document Control Desk, [Duke]; [Oconee];... [SLR] - Appendix E Environmental Report Supplement 2 (Nov. 7, 2022) (ML22311A036).

13 See generally NUREG-1437, Supp. 2, Second Renewal, Site-Specific Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Subsequent License Renewal for [Oconee]; Draft Report for Comment (Feb. 2024) (ML24033A298) (DSSEIS).

14 Id. at iv.

15

[Duke]; [Oconee]; [DSSEIS]; Request for Comment; Public Comment Meetings; Opportunity to Request a Hearing and to Petition for Leave to Intervene, 89 Fed. Reg. 10,107 (Feb. 13, 2024).

16 See generally Petition.

17 Petition at 5-16.

18 Id. at 16-17.

19 Id. at 18-19.

20 See generally Mitman Report.

4 Duke and the NRC Staff filed their respective answers on May 31, 2024.21 Duke argued that all three contentions were inadmissible primarily because they lacked adequate support and failed to demonstrate a genuine dispute on a material issue of law or fact.22 The NRC Staff similarly argued that all three contentions were inadmissible because they failed to raise a material issue, raised no genuine dispute with the DSSEIS, and raised issues outside the scope of the SLR proceeding.23 Petitioners filed their Reply on June 7, 2024.24 Updated GEIS and Final Rule Amending 10 C.F.R. Part 51: On May 16, 2024, the Commission approved a final rule to update Part 51 to apply to both initial license renewal and one term of SLR.25 This final rule was supported by Revision 2 of the GEIS (2024 GEIS).26 Although the final rule had not yet been published,27 the Board ordered the participants to address the effect of the final rule and 2024 GEIS, if any, on this proceeding.28 The participants unanimously agreed that there was no impact.29 Oral Argument & Board Ruling: The Board held oral arguments on June 24, 2024.30 After completion of steps to ensure the proper treatment of potential nonpublic information, the 21 See generally Duke Answer; NRC Staff Answer to [Petition] (May 31, 2024) (ML24152A204) (NRC Answer).

22 See Duke Answer at 17-54.

23 See NRC Answer at 18-45.

24 Reply By [Petitioners] to Oppositions to Their [Petition] (June 7, 2024) (ML24337A228) (Reply).

25 Memorandum from C. Safford, NRC, to R. Furstenau, NRC, Staff Requirements - Affirmation Session, 9:30 A.M., Thursday, May 16, 2024 via Public Teleconference (May 16, 2024) (ML24137A164).

26 NUREG-1437, [GEIS] - Final Report, Rev. 2 (Aug. 2024) (Vol. 1, Main Report, ML24086A526; Vol. 2, Appendix A, ML24086A527; Vol. 3, Appendices B-J, ML24086A528) (2024 GEIS).

27 See Renewing Nuclear Power Plant Operating LicensesEnvironmental Review; Final Rule and Guidance; Issuance, 89 Fed. Reg. 64,166 (Aug. 6, 2024) (effective date Sept. 5, 2024; compliance date Aug. 6, 2025)

(2024 Final Rule).

28 Licensing Board Memorandum and Order (Request to Address Impacts of Final Rule Applying [GEIS] to

[SLR] Period) (May 21, 2024) (ML24142A273).

29 See Duke Answer at 12-16; NRC Answer, Attach. A; Reply at 3-4.

30 See Transcript at 1-149 (June 24, 2024) (ML24337A176) (Tr.).

5 Board issued its decision on January 17, 2025.31 Finding that none of the proposed contentions were admissible, the Board denied the Petition and terminated the proceeding.

As to Proposed Contention 1, the Board unanimously concluded it to be inadmissible. In essence, the Board determined that Petitioners failed to raise a genuine dispute because they failed to engage with the substance of certain documents central to the regulatory history of flooding hazards analyses at Oconee.32 Because Petitioners ignored the substance of these documents, which effectively disproved their allegation that the DSSEIS had mischaracterized that regulatory history, the Board concluded that Proposed Contention 1 was not litigable.33 The Board also unanimously found Proposed Contention 2 to be inadmissible because none of the six issues raised in the contention showed the existence of a genuine dispute on a material issue of law or fact. The Board separately analyzed each criticismrelated to core damage frequency (CDF) estimates, multipliers for fire and seismic events, risk aggregation, uncertainties in probabilistic risk assessments, and the State-of-the-Art Reactor Consequence Analysisand articulated its reasons for determining that none provided a basis for an admissible contention. Among those reasons, a recurring theme was that the Mitman Report (on which the contention relied) merely suggested alternative methodologies without explaining why the methodologies employed by NRC Staff were unreasonable.34 Lastly, the Board unanimously held that Proposed Contention 3 was inadmissible because it failed to raise a genuine dispute on a material issue. In harmony with the licensing board holdings in the Turkey Point and North Anna SLR proceedings dispositioning similar proposed 31 See Oconee, LBP-25-01, 101 NRC __ (slip op.).

32 Id. at __ (slip op. at 24).

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

34 Id. at __ (slip op. at 29-33, 34-35, 36-37, 38-39, 44-46).

6 contentions (and based on similar claims from Mr. Mitman), the Board held that Petitioners vague theory on climate change and accident risk was far too speculative and lacked sufficient information to establish a genuine dispute.35 The Board also concluded that a report from the U.S. Government Accountability Office (GAO Report), briefly mentioned in the Mitman Report, did not cure these deficiencies.36 B.

Legal & Regulatory Standards

1.

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

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

35 Id. at __ (slip op. at 51).

36 Id. at __ (slip op. at 52-54).

7 Failure to satisfy any one of these six admissibility criteria requires that a proposed contention be rejected.37 These criteria are strict by design.38 The rules were toughened...

in 1989 because in prior years licensing boards had admitted and litigated numerous contentions that appeared to be based on little more than speculation.39 The petitioner alone bears the affirmative burden to satisfy these criteria.40

2.

Standard of Review on Appeal NRC regulations at 10 C.F.R. § 2.311(c) permit petitioners to appeal orders denying hearing requests and petitions to intervene, as of right, on the sole question of whether the request and/or petition should have been granted.41 The Commission generally defers to Board decisions on contention admissibility, but will reverse a Boards ruling if there has been an error of law or an abuse of discretion.42 The Commission has reversed Board decisions admitting speculative contentions because entertain[ing] contentions grounded on little more than guesswork would waste the scarce adjudicatory resources of all involved.43 37 See Changes to Adjudicatory Process; Final Rule, 69 Fed. Reg. 2,182, 2,221 (Jan. 14, 2004); see also Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999).

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

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

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

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

41 10 C.F.R. § 2.311(c).

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

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

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

8 The Commission affords licensing board rulings on contention admissibility substantial deference,44 absent an error of law or abuse of discretion.45 Thus, when a licensing board has reviewed the record in detail, the Commission generally is disinclined to upset its findings, particularly on matters involving fact-specific issues or consideration of expert affidavits or submissions.46 The Commission reviews questions of law de novo, and will reverse a licensing boards legal rulings if they are a departure from[,] or contrary to[,] established law.47 To prevail on an abuse of discretion claim, the appellant must persuade the Commission that a reasonable mind could reach no other result.48 An appeal that does not point to an error of law or an abuse of discretion, but simply restates the petitioners arguments, is not a valid appeal.49 When a licensing board holds that a contention is inadmissible for failing to meet more than one of the admissibility requirements in 10 C.F.R. § 2.309(f)(1)(i)-(vi), a petitioners failure to acknowledge and rebut each ground for the Boards ruling is sufficient justification for the Commission to reject the petitioners appeal.50 As the Commission has made clear, it will not consider new arguments raised for the first time on appeal that the Board never had an opportunity to consider.51 44 Crow Butte Res., Inc. (Marsland Expansion Area), CLI-14-2, 79 NRC 11, 26 (2014).

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

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

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

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

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

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

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

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

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

9 III.

THE COMMISSION SHOULD AFFIRM LBP-25-01 BECAUSE PETITIONERS IDENTIFY NO ERROR OF LAW OR ABUSE OF DISCRETION On appeal, Petitioners vaguely assert that the Board erred as to all three proposed contentions. However, the Appeal shares little resemblance to an appellate brief because it primarily advocates for the admissibility of the proposed contentions. That is not the proper focus of an appeal under 10 C.F.R. § 2.311. Licensing board decisions are entitled to substantial deference.52 Thus, appellants cannot merely seek to relitigate their claims; they must identify and demonstrate the existence of some error of law or abuse of discretion, which are defined terms of art in the appellate context.53 As detailed below, Petitioners have not done so here.

Accordingly, the Commission should AFFIRM the challenged Board rulings in LBP-25-01.

A.

Petitioners Identify No Error of Law or Abuse of Discretion in the Boards Ruling on Proposed Contention 1 In Proposed Contention 1, Petitioners sought to dispute the NRC Staffs determination (in Appendix F, Section F.1.2, of the DSSEIS) that the impacts from a hypothetical Design Basis Accident are SMALL.54 In simple terms, Petitioners argued that the underlying analysis was defective because it mischaracterized the status of the NRCs adequate protection finding for Oconee.55 The Board concluded that Proposed Contention 1 was inadmissible because Petitioners misread (or patently ignored) relevant information demonstrating the opposite of Petitioners claim. On appeal, Petitioners merely repeat their arguments and request a different 52 Crow Butte, CLI-14-2, 79 NRC at 26.

53 See supra Section II.B.2.

54 See, e.g., Petition at 5 (citing DSSEIS at F-5); Appeal at 8 (same).

55 See, e.g., Petition at 6 (citing DSSEIS at F-3 to F-4, in turn citing Letter from R.J. Bernardo, NRC, to J.E.

Burchfield, Jr., Duke, [Oconee] - Documentation of the Completion of Required Actions Taken in Response to the Lessons Learned from the Fukushima Dai-Ichi Accident (Nov. 17, 2020) (ML20304A369) (Closeout Letter)).

10 outcome. But that is not a valid basis for an appeal. Accordingly, the Commission should AFFIRM the Boards decision on Proposed Contention 1.

1.

NRC Oversight of Adequate Protection Before issuing a license to operate a nuclear reactor, the Atomic Energy Act of 1954, as amended,56 requires the NRC to find that such action would provide adequate protection to the health and safety of the public.57 Throughout the life of a plant, the NRC continually evaluates adequate protection via its safety oversight function and can take steps as necessary to maintain or restore adequate protection through a process known as backfitting.58 The arguments presented in Proposed Contention 1 relate to two NRC oversight activities through which the NRC considered whether it needed to invoke the backfit process to maintain or restore adequate protection for Oconee related to postulated flooding scenarios (and ultimately determined that it did not). The full regulatory history of these oversight activities is well documented in many other sources and not repeated here.59 But, for purposes of the instant Appeal, the relevant facts are as follows.

The first oversight activity (First Oversight Activity) was specific to Oconee. At the NRCs request, Duke prepared a conservative and bounding hazards analysis for a hypothetical failure of the nearby Jocassee Dam.60 The NRC documented its acceptance of this analysis in an assessment dated January 11, 2011 (2011 Assessment).61 56 Atomic Energy Act of 1954, Pub. L. No.83-703, 68 Stat. 919 (codified as amended at 42 U.S.C. §§ 2011, et seq.).

57 Id. § 182.a (codified at 42 U.S.C. § 2232(a)).

58 10 C.F.R. § 50.109.

59 See, e.g., Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2 & 3), LBP-22-1, 95 NRC 49, 65-77 (2022).

60 See id. at 70-72.

61 Letter from E. Leeds, NRC, to P. Gillespie, Duke, Staff Assessment of Dukes Response to Confirmatory Action Letter Regarding Dukes Commitments to Address External Flooding Concerns at [Oconee] (TAC Nos.

ME3065, ME3066, and ME3067), Encl. 1 (Jan. 28, 2011) (ML110280153) (2011 Assessment).

11 The second oversight activity (Second Oversight Activity) involved all operating power reactors. At the NRCs request, following the Fukushima accident, all licensees prepared updated flood hazards analyses based on new Commission guidance.62 In 2016, as to Oconee, the NRC documented its acceptance of this more updated analysis (which removed excess conservatism) and concluded that it provided an acceptable alternative to the analysis considered in the 2011 Assessment (2016 Assessment).63 The Staff also discontinued the First Oversight Activity (Oconee-specific), without invoking the backfit process, noting that further evaluations would be completed under the framework of the Second Oversight Activity (post-Fukushima reevaluations) to ensure consistency in the staffs approach to addressing these issues for all plants.64 The framework for the Second Oversight Activity expressly provided that, if reevaluated hazards analyses demonstrated a need for any regulatory actions to maintain or restore adequate protection, the NRC Staff would perform a backfit analysis.65 When closing-out the Second Oversight Activity for Oconee in 2020, again without initiating the backfit process, the NRC documented its determination that no further regulatory actions were 62 See Oconee, LBP-22-1, 95 NRC at 73; see also Letter from E. Leeds & M. Johnson, NRC, to All Power Reactor Licensees and Holders of Construction Permits in Active or Deferred Status, Request For Information Pursuant to Title 10 Of The Code Of Federal Regulations 50.54(F) Regarding Recommendations 2.1, 2.3, and 9.3, of the Near-Term Task Force Review of Insights from the Fukushima Dai-Ichi Accident (Mar. 12, 2012)

(ML12053A340).

63 Letter from J. Davis & A. Boland, NRC, to S. Batson, Duke, [Oconee] - Staff Assessment of Response to Request for Information Pursuant to 10 CFR 50.54(f) Flood-causing Mechanisms Reevaluation (CAC Nos.

MF1012, MF1013, and MF1014) and Path Forward on Confirmatory Action Letter (Apr. 14, 2016)

(ML15352A207).

64 Letter from C. Haney, NRC, to S. Batson, Duke, [Oconee] - Confirmatory Action Letter Follow Up Inspection Report 05000269/2016009, 05000270/2016009, and 05000287/2016009 at 1 (June 16, 2016)

(ML16168A176) (emphasis added).

65 Memorandum from C. Erlanger, NRC, to H. Nieh, NRC, Revision to the Regulatory Decision-Making Process for Reevaluated Flooding and Seismic Hazards for Operating Nuclear Power Plants, Encl. at 8 (Mar. 2, 2020) (ML20043D958) (Erlanger Memo).

12 needed.66 In other words, the NRC Staff concluded nothing was needed to maintain or restore adequate protection.67

2.

The Board Properly Rejected Petitioners Selective Reading of the Relevant Regulatory History In Proposed Contention 1, Petitioners attempted to contest the accuracy of the following statement in Section F.1.2 of the DSSEIS related to the NRCs close-out of the Second Oversight Activity, which stated as follows:

On November 17, 2020, the NRC staff completed its review for Oconee Station and concluded that no further regulatory actions 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.68 Petitioners purported to dispute the accuracy of this statement based on a tortuous theory that: (1) the 2011 Assessment somehow imposed requirements on Duke, (2) those purported requirements were necessary to maintain or restore adequate protection for Oconee, and (3) the NRC has never repudiated the imposition of those requirements via a subsequent document expressly using the words adequate protection.69 According to Petitioners, the statement from Section F.1.2, quoted above, was erroneous, incomplete and misleading because it disregarded this theorized chain of events.70 More succinctly, Petitioners demanded a hearing because they think the NRC somehow forgot about the 2011 Assessment. But that claim 66 Closeout Letter at 9-10.

67 Compare, e.g., Erlanger Memo, Encl. at 8 (stating that, if further actions were required to maintain or restore adequate protection, then the NRC would initiate the backfit process) with Closeout Letter at 9-10 (stating that no further actions were required for Oconee).

68 Petition at 6 (quoting DSSEIS at F-4, which in turn cited the Closeout Letter); Appeal at 8 & n.28 (same).

69 Petition at 7; Appeal at 9.

70 Petition at 6; Appeal at 8.

13 is both illogical and untrue. As the Board properly recognized, Petitioners argument is unsupported, disregards the fulsome regulatory history, and is plainly wrong.71 As part of its basis for concluding that Proposed Contention 1 lacked adequate support, the Board correctly found that Petitioners had misapprehen[ded] the regulatory significance of the 2011 Assessment (among other documents).72 That finding is legally sound. An NRC safety evaluation, standing alone, lacks the legal capacity to require anything at all. As a matter of law, federal agencies impose requirements through two mechanisms: rules and orders.73 A safety evaluation is neither. As its moniker advertises, it is merely an evaluation.74 In the proceedings before the Board, Petitioners identified no support for their dubious contrary claims. And on appeal, Petitioners disregard the issue entirelyand certainly do not identify any legal error or abuse of discretion in the Boards ruling thereon.

The Board also concluded that Proposed Contention 1 failed to demonstrate a genuine dispute due to Petitioners continuing lack of engagement and utter failure to engage with relevant documents that clearly contradicted Petitioners claims.75 For example, the Board noted that Petitioners did not grapple with docketed correspondence explaining the agencys regulatory determination to discontinue the First Oversight Activity (which resulted in the issuance of the 2011 Assessment with no corresponding backfit analysis) or its determination that the more 71 Oconee, LBP-25-01, 101 NRC at __ (slip op. at 23-27).

72 Id. at __ (slip op. at 25-26 n.53).

73 See generally Administrative Procedure Act of 1946, Pub. L.79-404, 60 Stat. 237 (codified as amended at 5 U.S.C. ch. 5, subch. I § 500 et seq.).

74 See also NUREG-1409, Backfitting Guidelines, Draft Rev. 1 at 1-5 (Mar. 2021) (ML21006A433) (Staff positions in safety evaluations are not requirements; rather, they are the NRCs regulatory bases for its decisions or interpretations. A safety evaluation (or safety evaluation report) provides the staff position on why an affected entitys proposed means of implementing or complying with a governing requirement is acceptable and results in compliance with the requirement. The safety evaluation is not part of the licensing basis unless specifically incorporated by the licensee or required as a condition of approval by the staff.)

(emphasis added).

75 Oconee, LBP-25-01, 101 NRC at __ (slip op. at 24, 25).

14 modern analysis considered in the 2016 Assessment was an acceptable alternative to the overly conservative analysis considered in the 2011 Assessment for purposes of regulatory compliance.76 As another example, the Board highlighted Petitioners failure to confront the regulatory history documenting the framework for the Second Oversight Activity, which explained that any potential adequate protection deficiencies would be addressed through the backfit process, and their failure to confront the undisputed absence of any attempted backfit resulting from that process.77 On appeal, Petitioners essentially argue they had no duty to take account of those documents because none of them used the [exact] phrase adequate protection.78 Indeed, that is Petitioners only substantive argument on appeal.79 But that argument provides no grounds for reversal for at least three reasons.

First, Petitioners fail to allege or identify any error of law or abuse of discretion in the Boards rejection. That, alone, is sufficient to affirm the Boards conclusion.80 Second, the Board squarely consideredand rejectedPetitioners argument that the absence of magic words somehow conjured a material dispute in the face of the full regulatory history.81 And the previous licensing board reached the exact same conclusion.82 As a matter of 76 Id. at __ (slip op. at 24).

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

78 Appeal at 12.

79 On page 11 of their Appeal, Petitioners use the terms First and Second, as if to demarcate separate bases, but both paragraphs fundamentally raise the same phraseological argument. Petitioners also make a conclusory assertion that some unidentified aspect of the Boards decision improperly applied a merits standard of review, Appeal at 12, but they fail to provide any corresponding argument or explanation.

80 See Shieldalloy, CLI-07-20, 65 NRC at 503-05.

81 Oconee, LBP-25-01, 101 NRC at __ (slip op. at 23-24).

82 Oconee, LBP-22-1, 95 NRC at 91.

15 settled law, merely repeating an argument and hoping for a different outcome from the Commission is not a valid appeal.83 Third, and perhaps more importantly, Petitioners are simply wrongthe Commission has, in fact, issued an official, post-2011 determination expressly stating that Oconee provides adequate protection. This issue was the subject of an allegation scrutinized by the U.S. Office of Special Counsel (OSC) between 2015 and 2017. As part of that process, the NRC Chairman conducted a thorough investigation of various claims, including one essentially identical to Petitioners theory in Proposed Contention 1. In a letter dated June 30, 2016, forwarding a robust investigation report prepared by an independent working group (nearly 150-pages in length), the NRC Chairman stated as follows:

[c]ontrary to the whistleblowers allegations, the NRC has taken the actions that the agency has determined to be necessary to ensure that the public health and safety is adequately protected from potential flooding caused by credible upstream dam failures at the Oconee Nuclear Station....

The whistleblowers disagreement with the actions taken by the NRC does not equate to inaction.84 Furthermore, the NRCs official conclusion was reiterated in a September 18, 2017 letter from the OSC to the President of the United States, the U.S. House Committee on Energy and Commerce, and the U.S. Senate Committee on the Environment and Public Works, which stated as follows:

83 See Shieldalloy, CLI-07-20, 65 NRC at 503-05.

84 Letter from S. Burns, NRC, to C. Lerner, OSC, OSC File No. DI-15-5254 at 2 (June 30, 2016), available at https://osc.gov/Documents/Public%20Files/FY17/DI-15-5254/DI-15-5254%20Agency%20Report.pdf. Given that Mr. Mitman participated in this process directly, it is reasonable to conclude that he knew or should have known about this statement.

16 NRC assured OSC that after multiple detailed assessments of potential flooding it had concluded that the current flood protection barrier at the

[Oconee] provides adequate protection.85 To date, the NRC Staff, an independent working group, the NRC Chairman, and two separate (and unanimous) licensing boards have all reached the same conclusion directly contradicting Petitioners theory in Proposed Contention 1; and neither the OSC, nor the President, nor the Congress have taken any action to disclaim or contradict that conclusion. There simply can be no doubt about the agencys official, documented, longstanding, and publicly-available position regarding the status of adequate protection at Oconee.

Ultimately, the Board was manifestly correct in rejecting Petitioners illogical and counterfactual claims in Proposed Contention 1. And nothing in the appeal demonstrates any error of law or abuse of discretion in the Boards well-reasoned decision, which the Commission should AFFIRM.

B.

Petitioners Identify No Error of Law or Abuse of Discretion in the Boards Ruling on Proposed Contention 2 In Proposed Contention 2, which occupied slightly more than one single page of the Petition, Petitioners asserted that the severe accidents analysis in the DSSEIS reflected a significant understatement of accident risk based on six claims.86 In LBP-25-01, across 20 pages of discussion, the Board meticulously cataloged each claim and explained its reasons for concluding that none demonstrated a genuine dispute on a material issue of fact or law, as required by 10 C.F.R. § 2.309(f)(1)(vi).87 The Appeal devotes only a single paragraph to the 85 Letter from T. Leavitt, OSC, to the President of the United States at 2 (Sept. 18, 2017), available at https://osc.gov/Documents/Public%20Files/FY17/DI-15-5254/DI-15-5254%20Letter%20to%20President.pdf.

86 Petition at 16-17.

87 Oconee, LBP-25-01, 101 NRC at __ (slip op. at 27-46).

17 Boards ruling on Proposed Contention 2.88 Therein, Petitioners claim that the Board erred in finding the contention inadmissible. But they advance no express argument that the Boards conclusion resulted from an error of law or an abuse of discretion, as required for a valid appeal.

On its face, then, the Appeal must be rejected; Petitioners mere disagreement with the result provides no grounds to reverse LBP-25-01.89 Even beyond the unmet standard of review, the Appeal discusses only one of the six claims evaluated by the Board. Notwithstanding Petitioners statement that they do not concede the correctness of the Boards rulings on the other five claims,90 Petitioners have waived their opportunity to appeal those rulings.91 Furthermore, Petitioners fleeting discussion of the remaining claim is inaccurate and identifies no flaw in the Boards reasoning.

By way of background, the 1996 GEIS generically evaluated the potential environmental consequences of a hypothetical severe accident by analyzing (among other things) the probability of a core damage eventi.e., core damage frequency (CDF).92 Based its analysis, the Commission generically determined that the probability-weighted consequences of severe accidents, as related to license renewal, are SMALLand codified that conclusion via notice and comment rulemaking.93 Since then, the NRC has twice updated that generic analysis to 88 Appeal at 13.

89 Fla. Power & Light Co. (Turkey Point Nuclear Generating, Units 6 & 7), CLI-17-12, 86 NRC 215, 219 (2017)

(Recitation of an appellants prior positions in a proceeding or statement of general disagreement with a decisions result is not sufficient; the appellant must point out the errors in the Boards decision. (citing Shieldalloy, CLI-07-20, 65 NRC at 503-504)).

90 Appeal at 13 n.42.

91 Hydro Res., Inc. (Rio Rancho, NM), CLI-04-33, 60 NRC 581, 592 (2004) (the Commission deems any arguments not clearly articulated on review to have been waived).

92 See generally 1996 GEIS, Vol. 1 at Ch. 5.

93 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses; Final rule, 61 Fed.

Reg. 28,467, 28,494 (June 5, 1996).

18 account for new information and decades of operating experience; each time, it reached (and re-codified) the same conclusion.94 In the DSSEIS, the NRC compared the current CDF value for Oconee (1.26 x 10-4/yr) to the highest CDF value considered in the 1996 GEIS (3.5 x 10-4/yr), which shows that the former is bounded by the latter.95 In other words, the Oconee CDF value is less than the benchmark value that the Commissionfor nearly 30 yearshas considered to represent a SMALL impact.

Accordingly, the NRC Staff concluded that the current CDF value for Oconee was not new and significant information that would lead to a different impact conclusion for Oconee SLR.96 The Mitman Report attached to the Petition criticized this comparison because it allegedly was not based on the latest available information.97 The Mitman Report suggested (without explanation) that the Oconee CDF value should have been compared to the mean and median CDF values for the operating fleet.98 Not surprisingly, the Board found this bare preference for a comparison against a different metricunaccompanied by any further justification of the alleged need for such a comparison, nor any explanation of why the NRC Staffs comparison was, in any way, materially flawed or deficientfailed to carry Petitioners burden to demonstrate a genuine dispute on a material issue of fact or law.99 On appeal, Petitioners assert that the Board mischaracterized their claim as merely presenting an alternative methodology.100 According to Petitioners, their freestanding 94 See generally 2013 GEIS, Vol. 1 at 4-158 to 4-161 & Vol. 3, App. E; Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses; Final rule, 78 Fed. Reg. 37,282, 37,322 (June 20, 2013);

2024 GEIS, Vol. 1 at 4-129 to 4-132 & Vol. 3, App. E; 2024 Final Rule, 89 Fed. Reg. at 37,322.

95 DSSEIS at F-15.

96 Id. at F-17.

97 Mitman Report at 34.

98 Id.

99 Oconee, LBP-25-01, 101 NRC at __ (slip op. at 29-33).

100 Appeal at 13.

19 assertion that Staffs analysis fail[ed] to use the latest available information was sufficient for an admissible contention.101 But those arguments are incorrect and inapt. First, the Board did not mischaracterize Petitioners argument. The DSSEIS compared the Oconee CDF value to a bounding CDF value long considered to be within the Commissions definition of a SMALL impact finding.102 Whereas, Petitioners suggested the DSSEIS should compare the Oconee CDF value to mean and median CDF values for the operating fleet.103 Those are clearly different things. Thus, the Boards characterization of Petitioners argument as demanding an alternative analysis was manifestly correct as a factual matter. And its holding that mere suggestions for alternative analysis methods are insufficient to demonstrate a genuine dispute is squarely supported by controlling case law (which the Appeal neither confronts nor disputes).104 Second, Petitioners still identify no reason their reference to the latest available information somehow demonstrated a material dispute. Petitioners offered no explanation to the Board of why mean and median CDF values would even be relevant (much less, material) to the severe accidents analysis regardless of how recent they are. And no such relevance is obvious. The Commission has long held that the bounding CDF value in the 1996 GEIS is within the definition of SMALL impacts; thus, Oconees lower CDF value plainly falls within the definition of SMALL impacts regardless of what the mean and median CDF values are.

In sum, Petitioners conclusory appeal demonstrates no error of law or abuse of discretion in the Boards well-reasoned decision on Contention 2, which the Commission should AFFIRM.

101 Id.

102 DSSEIS at F-15.

103 Mitman Report at 34.

104 Oconee, LBP-25-01, 101 NRC at __ (slip op. at 33) (citing NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 323-24 (2012)).

20 C.

Petitioners Identify No Error of Law or Abuse of Discretion in the Boards Ruling on Proposed Contention 3 In Proposed Contention 3, Petitioners alleged that the DSSEIS was deficient because it does not address the effects of climate change on accident risk on Oconee.105 The Board found that Proposed Contention 3 was inadmissible because Petitioners claims were speculative, unsupported, and failed to demonstrate a genuine dispute.106 As detailed below, Petitioners discussion of Proposed Contention 3 in the Appealwhich is roughly six times longer than the cursory explanation of Proposed Contention 3 supplied in the original Petitionidentifies no basis to overturn the Boards well-reasoned conclusion.107 Accordingly, the Commission should AFFIRM the Boards ruling on Proposed Contention 3.108

1.

Petitioners Advocacy for Admitting Proposed Contention 3 as a Contention of Omission Provides No Grounds for Reversal In Section IV.C.2 of their Appeal, Petitioners state that the Board appears to consider that Proposed Contention 3 is inadmissible because Appellants failed to identify specific deficiencies in the accident analysis and/or climate change analysis in the Draft EIS.109 But this Section of the Appeal does not make any direct allegation that this observation identifies some 105 Petition at 18.

106 Oconee, LBP-25-01, 101 NRC at __ (slip op. at 52-55).

107 Compare Petition at 18-19 (discussion of Proposed Contention 3, occupying approximately 1.5 pages) with Appeal at 13-22 (discussion of Proposed Contention 3, occupying approximately 9 pages).

108 A brief note on the scope limitation against safety-related challenges to current licensing basis matters in license renewal proceedings (see 10 C.F.R. §§ 54.21, 54.29(a); Fla. Power & Light Co. (Turkey Point Nuclear Generating Station, Units 3 & 4), CLI-01-17, 54 NRC 3, 7-8 (2001)): The safety actions that may be needed to address natural phenomena that could act upon a plant (e.g., determination of the appropriate height of a flood barrier) are evaluated as a matter of ongoing regulatory compliance, far beyond the limited scope of a license renewal proceeding; whereas, the environmental impacts of hypothetical accidents resulting from such natural phenomena (i.e., external events) are squarely evaluated in license renewal proceedings under the heading of Postulated Accidents. In Dukes view, that approach is fully compliant with NEPA, as it does not exclude any environmental analyses from the environmental review. To the extent Petitioners (e.g., Appeal at 15-16) and the Board (Oconee, LBP-25-01, 101 NRC at __ (slip op. at 54-55 n.87)) misconstrue this scope limitation, the Commission may wish to clarify this limit in its ruling.

109 Appeal at 17.

21 legal error or abuse of discretion. Indeed, it does not reference or quote any particular portion of LBP-25-01 at all. Instead, as the section heading explains, the thrust of this discussion is Petitioners view that [Proposed] Contention 3 is an admissible contention of omission.110 As the Commission has long observed, [p]ointing out errors in the Boards decision is a basic requirement for an appeal, whereas, simply reformulat[ing] the same contention [] presented to the Board does not satisfy our requirements for a valid appeal.111 On its face,Section IV.C.2 of the Appeal does not meet that minimum threshold.

Even if the Commission and other participants were obligated to search for potential appellate arguments somewhere in this discussion (they are not),112 no basis for reversal would be found. At best,Section IV.C.2 of the Appeal might be construed to argue that the Board abused its discretion by incorrectly evaluating Proposed Contention 3 as a contention of sufficiency, rather than one of omission, and then committing an error of law by rejecting it for lacking adequate support, as required by the admissibility criterion in 10 C.F.R. § 2.309(f)(1)(v).

According to Petitioners, that criterion is allegedly inapplicable to contentions of omission beyond identifying the regulatively required missing information.113 For several reasons, these potential arguments would provide no basis for reversal.

First, the notion that a codified admissibility criterion is somehow inapplicable certainly is not settled law. The authority relied upon by Petitioners for that assertion is not bindingeither on the Board (which was not presented with this argument in the proceedings 110 Id.

111 Shieldalloy, CLI-07-20, 65 NRC at 503, 505.

112 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), CLI-89-3, 29 NRC 234, 241 (1989) (The Commission cannot be faulted for not having searched for a needle that may be in a haystack.).

113 Appeal at 17 & n.59 (citing Va. Elec. & Power Co. (North Anna Power Station, Units 1 & 2), LBP-24-07, 100 NRC at __ (July 10, 2024) (slip op. at 21 n.72) (Judge Gibson, concurring in part and dissenting in part).

22 below)114 or the Commission (here on appeal). That is because it comes from the dissent in an unreviewed licensing board decision in another proceeding, which, itself, relies on a string of non-controlling licensing board decisions.115 Moreover, this proposition is questionable in the face of the Commissions view that disputes over contention characterization often rais[e] form over substance because [t]he distinction between contentions of omission and contentions of inadequacy does not appear in our contention pleading regulations.116 Ultimately, even if Petitioners had advanced a clear argument that LBP-25-01 was legally erroneous based on this line of cases (they did not), that argument would fail because they cited no controlling authority to support the alleged legal error.

Second, even assuming arguendo that Proposed Contention 3 need only identify the regulatively required missing information, Petitioners did not do so here. The only regulatory requirement cited in Proposed Contention 3 was 10 C.F.R. § 51.71.117 That is the general provision regarding the content of a draft EIS. And nowhere in its text does it expressly state that an assessment of the effects of climate change on accident risk is required content for a draft EIS. In other words, Petitioners did not identify a facial omission. Although unclear (because Petitioners offered no explanation), Proposed Contention 3 may have been seeking to allege non-satisfaction of the broad requirement in Section 51.71 that the draft EIS include 114 But see USEC, CLI-06-10, 63 NRC at 458 (The purpose of an appeal is not to present arguments... never provided to the Board.).

115 See North Anna, LBP-24-07, 100 NRC at __ (Judge Gibson, concurring in part and dissenting in part) (slip op.

at 21 n.72) (citing Det. Edison Co. (Fermi Nuclear Power Plant, Unit 3), LBP-09-16, 70 NRC 227 (2009)

(quoting Va. Elec. & Power Co. (North Anna Power Station, Unit 3), LBP-08-15, 68 NRC 294, 317-18 (2008)

(in turn, quoting Paina Hawaii, LLC (Materials License Application), LBP-06-12, 63 NRC 403, 414 (2006)))).

116 Levy, CLI-10-2, 71 NRC at 36 n.44.

117 Petition at 18.

23 a preliminary analysis that considers and weighs the environmental effects... of the proposed action. But that regulatively required content clearly was not missing from the DSSEIS.118 Third, Petitioners identify no point in LBP-25-01 in which the Board characterized Proposed Contention 3 as being one of sufficiency, versus one of omission. And the decision contains no such distinction. On its face, LBP-25-01 simply evaluated the contention against the codified admissibility criteria. That is clearly not legally erroneous. And even if the Board had made such a distinction, that would not be an abuse of discretion.119 Having identified no facial omission, it would not have been unreasonable for the Board to view Proposed Contention 3 as attempting to dispute the sufficiency of the (non-omitted) environmental effects analysis.

Lastly, Petitioners assert that the Mitman Report supplied the required information for a contention of omission because it discussed specific portions of the DSSEIS and explained why the information it demanded should have been provided.120 But the Board disagreed. It concluded that Petitioners had not provided an adequate explanation of why the allegedly-omitted information was required.121 In simplified terms, and as further explained in Section III.C.2., below, the Board correctly found that Petitioners demand for further analysis improperly relied on layers of speculation. Petitioners do not acknowledge or address that conclusion here. And they certainly do not identify any legal error or abuse of discretion in that demonstrably correct finding.

118 See generally DSSEIS at 1-6 (Chapter 3, Affected Environment, Environmental Consequences, and Mitigating Actions, contains an analysis... of the potential environmental impacts from SLR.); id. at 3-1 to 3-218 and associated appendices (containing that analysis).

119 To prevail on an abuse of discretion claim, the appellant must persuade the Commission that a reasonable mind could reach no other result. Turkey Point, ALAB-952, 33 NRC at 532.

120 Appeal at 17.

121 See, e.g., Oconee, LBP-25-01, 101 NRC at __ (slip op. at 51) (finding instead that the Mitman Report speculated about potential deficiencies).

24

2.

Petitioners Advocacy for Admitting Proposed Contention 3 Because It Allegedly Identifies Potential Environmental Impacts Provides No Grounds for Reversal Section IV.C.3 of the Appeal also is devoted to arguing that Proposed Contention 3 is admissible.122 Notably, this section does not discuss LBP-25-01 at all. It makes no reference to any Board conclusions. And it offers no explanation of why any (unidentified) Board conclusion constitutes reversible error. It simply argues for the admissibility of the contention. As explained above, that is not a valid appeal.123 And as with Section IV.C.2 of the Appeal, the Commission and the other participants need not search through Section IV.C.3 to identify potential arguments not advanced by Petitioners.124 Nevertheless, to the extent this vague discussion could be viewed as attempting to dispute the Boards conclusion that the Mitman Report is too speculative to support an admissible contention,125 it still fails to identify any error of law or abuse of discretion. As the Board recognized, the overarching flaw in Proposed Contention 3 is that Petitioners never addressed whether expected climate change effects near Oconee were sufficient to actually affect the plants accident risk analysis as presented in the DSSEIS.126 The Board was manifestly correct that this contention relied on impermissible speculation. To start, the Mitman Report notes that certain meteorological parameters (e.g.,

rainfall) are expected to change as a result of climate change. But that assertion is not disputed.

In fact, it is entirely consistent with statements made in Section 3.14.3.2 of the DSSEIS. Left 122 Appeal at 18.

123 Shieldalloy, CLI-07-20, 65 NRC at 503, 505.

124 Seabrook, CLI-89-3, 29 NRC at 241 (no obligation to search for a needle that may be in a haystack.).

125 Oconee, LBP-25-01, 101 NRC at __ (slip op. at 51).

126 Id.

25 unexplained, however, is the remainder of Petitioners theory as to why the postulated accidents analysis in the DSSEIS allegedly requires something more:

  • Petitioners proffered no assertion (or support) about how much those meteorological parameters might change over the license renewal term;
  • Petitioners did not compare any speculative changes in those values to the values used in some unspecified analysis in the DSSEIS;
  • Petitioners did not explain why a comparison of the unspecified values in those unidentified analyses purportedly would reveal some alleged deficiency; and
  • Petitioners failed to demonstrate that such speculative deficiency would, in fact, be material to the underlying (but unspecified) analysis, particularly in light of the fact that plant design bases are not merely based on historical natural phenomena, but also have sufficient margin added thereto, and that the DSSEIS further evaluates external events exceeding that sufficient margin on a probabilistic basis in the Severe Accidents analysis.

Petitioners fill-in these enormous gaps in their chain of logic with one thing: speculation.

As the licensing board in the North Anna proceeding noted in the context of a similar climate change contention involving layered speculation, [w]hile Petitioners have provided reasonable support for the proposition that climate change effects can alter accident risk, they have provided no factual or expert opinion support for the assertion that climate change effects will affect accident risk at North Anna in some material way.127 Here, the Board agreed that Proposed Contention 3 suffered from the same defect as to Oconee.128 And the Board is manifestly correct; contentions offering no tangible information but instead only bare assertions and speculation are plainly inadmissible as a matter of settled law.129 Aside from 127 North Anna, LBP-24-07, 100 NRC at __ (slip op. at 23) (emphasis in original).

128 Oconee, LBP-25-01, 101 NRC at __ (slip op. at 51).

129 Fansteel, Inc. (Muskogee, Okla. Site), CLI-03-13, 58 NRC 195, 203 (2003) (citing GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 208 (2000)).

26 quoting a speculative assertion in the Mitman Report,130 which cannot supply the basis for a contention, nothing in Section IV.C.3 confronts or disputes this conclusion. Thus, even if Petitioners had presented some express argument on appeal attempting to refute this portion of the Boards ruling (they did not), they would not have identified any reversible error.

3.

Petitioners Unremarkable Observation that the GEIS Does Not Govern This Proceeding Provides No Grounds for Reversal The Mitman Report attached to the Petition contained a vague allegation of DSSEIS inadequacy resulting from broad generalizations about external event [core damage frequency (CDF)] based on extrapolations from internal event CDF values.131 Neither the specific portion of the DSSEIS being challenged, nor the criticism itself, were further explained. The participants and the Board were left to guess what was being challengedand why. The Board generously construed this statement as a concern about the [Oconee] external hazards analysis.132 As such, it held that (1) this isolated statement failed to identify any legal or regulatory noncompliance (i.e., a material dispute), and (2) no material deficiency was otherwise obvious, particularly in light of the fact that the DSSEIS comparison of internal and external CDF values, and conclusion that the values for Oconee were comparable, was consistent with such comparisons and conclusions reflected in the GEIS and its periodic revisions for nearly three decades.133 In Section IV.C.4 of the Appeal, Petitioners argue that the Board erred because the GEIS does not govern this proceeding, and that they were free to and did challenge the GEIS.134 130 E.g., Appeal at 19 (citing Mitman Report at 41 for the proposition that climate change has the potential to affect accident risk).

131 Mitman Report at 42.

132 Oconee, LBP-25-01, 101 NRC at __ (slip op. at 52).

133 Id.

134 Appeal at 21.

27 But it is unclear what those arguments have to do with the Boards conclusion. Neither argument addresses (and certainly does not expose any legal error or abuse of discretion in) the Boards plainly correct observation that this isolated, unexplained statement in the Mitman Report failed to identify a material defect in the DSSEIS. Accordingly,Section IV.C.4 of the Appeal identifies no reason to disturb the Boards conclusion here.

4.

Petitioners Passing Commentary on CEQ Guidance and the GAO Report Provides No Grounds for Reversal The Mitman Report attached to the Petition briefly mentioned guidance from the CEQ and a report from the GAO, ostensibly as potential support for Proposed Contention 3.135 But the Mitman Report failed to explain the relevance of either document to the plant-specific claims in the contentionand the Petition itself did not mention these documents at all. Not surprisingly, the Board found these brief references were insufficient to support the contention and failed to demonstrate a genuine dispute.136 Section IV.C.5 of the Appeal briefly mentions these documents but identifies no legal error or abuse of discretion in the Boards conclusion.

First, the Mitman Report asserted that the NRC had ignored CEQ Guidance suggesting things agencies should do, e.g., consider Climate Change effects on the environment.137 But it provided no further discussion of that claim. This lack of explanation was particularly conspicuous, given that the DSSEIS clearly did consider that topic.138 Ultimately, the Board found that the Mitman Report, together with the CEQ Guidance, failed to supply the basis for an 135 Mitman Report at 40-41, 45.

136 Oconee, LBP-25-01, 101 NRC at __ (slip op. at 52-55).

137 Mitman Report at 40 (citing [NEPA] Guidance on Consideration of Greenhouse Gas Emissions and Climate Change; Notice of Interim Guidance; Request for Comments, 88 Fed. Reg. 1,196, 1,207 (Jan. 9, 2023)

(Interim CEQ Guidance).

138 DSSEIS at 3-205 to 3-209 (Climate Change).

28 admissible contention because neither document provided any explanation that would support Petitioners claim that the Staffs DSSEIS discussion of climate change is inadequate.139 On appeal, Petitioners do not confront this conclusion. Instead, they double-down on their (demonstrably incorrect) claim that the NRC did not consider the likelihood of increased temperatures and more frequent or severe storm events over the lifetime of the proposed action.140 The DSSEIS considers both.141 Thus, the Appeal identifies no defect in the Boards ruling on this issue.142 As to the GAO Report, the Mitman Report selectively quoted all or parts of four sentences therefrom and documented Mr. Mitmans general agreement with GAOs view that the NRC has not looked hard enough at Climate Change.143 The Mitman Report did not, however, identify any information in the GAO Report either (1) specifically discussing some purported deficiency in NRC quantitative severe accident analyses in license renewal environmental reviews, or (2) specifically discussing Oconee in that, or any other, context. As with the Mitman Reports invocation of the CEQ Guidance, the Board found that its references to generalized statements from the GAO Report did not identify any particular deficiencies in the DSSEIS.144 On appeal, Petitioners do not refute that assertion or otherwise identify any error of law or abuse of discretion. Thus, the Appeal provides no basis to reverse the Board on this issue.

139 Oconee, LBP-25-01, 101 NRC at __ (slip op. at 54-55).

140 Appeal at 22 & n. 80 (citing Mitman Report at 40 (in turn, citing Interim CEQ Guidance, 88 Fed. Reg.

at 1,207)).

141 See, e.g., DSSEIS at 3-207 (For the period between 2041 and 2070, annual mean temperature is projected to increase by 1.5-3.5°F); id. at 3-208 (For the southeast region, models predict a 9 percent average increase in extreme precipitation.).

142 See also generally Removal of [NEPA] Implementing Regulations, 90 Fed. Reg. 10,610 (Feb. 25, 2025)

(potentially mooting Petitioners argument).

143 Mitman Report at 40-41, 45.

144 Oconee, LBP-25-01, 101 NRC at __ (slip op. at 52-54).

29 At bottom, nothing in the Appeal demonstrates any error of law or abuse of discretion in the Boards well-reasoned decision on Proposed Contention 3, which the Commission should AFFIRM.145 IV.

CONCLUSION For all of the many reasons set forth above, the Commission should AFFIRM the Boards decision in LBP-25-01.

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

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

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

PAUL M. BESSETTE, Esq.

MOLLY MATTISON, Esq.

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

Washington, D.C. 20004 (202) 739-5796 (202) 739-5540 Paul.Bessette@morganlewis.com Molly.Mattison@morganlewis.com Executed in Accord with 10 C.F.R. § 2.304(d)

TRACEY M. LEROY, Esq.

DUKE ENERGY CORPORATION 525 S. Tryon Street Charlotte, NC 28202 (704) 382-8317 Tracey.LeRoy@duke-energy.com Counsel for Duke Energy Carolinas, LLC Dated in Washington, D.C.

This 21st day of March 2025 145 Petitioners request for the wholesale adoption of the dissent in the North Anna proceeding (Appeal at 22) should be rejected. The Commission requires briefs to be comprehensive, concise, and self-contained, and will respond only to those arguments made explicitly in [Petitioners] appellate brief. S. Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 & 4), CLI-11-8, 74 NRC 214, 219 (2011) (citations omitted).

DB1/ 155920126.3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the matter of:

DUKE ENERGY CAROLINAS, LLC (Oconee Nuclear Station, Units 1, 2, and 3)

Docket Nos. 50-269-SLR-2 50-270-SLR-2 50-287-SRR-2 March 21, 2025 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the Duke Energy Carolinas, LLCs Brief in Opposition to the Appeal of LBP-25-01 Filed by Beyond Nuclear and the Sierra Club was served on the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned docket.

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

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

Washington, D.C. 20004 (202) 739-5274 ryan.lighty@morganlewis.com Counsel for Duke Energy Carolinas, LLC

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