ML22042B286

Memorandum and Order (Denying Intervention and Terminating Proceeding) (LBP-22-01)

ML22042B286
Person / Time
Site:	Oconee
Issue date:	02/11/2022
From:	Gary Arnold, Bollwerk G, Nicholas Trikouros Atomic Safety and Licensing Board Panel
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-269-SLR, 50-270-SLR, 50-287-SLR, ASLBP 22-973-01-SLR-BD01, LBP-22-01, RAS 56344
Download: ML22042B286 (51)

Text

UNITED STATES OF AMERICA LBP-22-01 NUCLEAR REGULATORY COMMISSION

ATOMIC SAFETY AND LICENSING BOARD PANEL

Before the Licensing Board:

G. Paul Bollwerk, III, Chairman Nicholas G. Trikouros Dr. Gary S. Arnold

In the Matter of Docket Nos. 50-269-SLR, 50-270-SLR, and 50-287-SLR DUKE ENERGY CAROLINAS, LLC ASLBP No. 22-973-01-SLR-BD01 (Oconee Nuclear Station, Units 1, 2, and 3)

February 11, 2022

MEMORANDUM AND ORDER (Denying Intervention and Terminating Proceeding)

By application dated June 7, 2021, licensee Duke Energy Carolinas, LLC (Duke) is

seeking second twenty-year renewals of its 10 C.F.R. Part 50 operating licenses for Units 1, 2,

and 3 at the Oconee Nuclear Station (ONS). 1 In a September 27, 2021 hearing request,

Beyond Nuclear, Inc., and Sierra Club, Inc., (collectively Petitioners) submitted three

contentions contesting the Environmental Report (ER) portion of Dukes subsequent license

renewal (SLR) application. 2 Two of Petitioners contentions, designated as Contentions 2 and 3,

1 See Letter from Steven M. Snider, Site Vice President, ONS, to NRC Document Control Desk (June 7, 2021) (ADAMS Accession No. ML21158A194) [hereinafter Oconee SLR Application].

2 See Hearing Request and Petition to Intervene by [Petitioners] and Petition for Waiver of 10 C.F.R. §§ 51.53(c)(3)(i), 51.53(c)(3)(ii)(L), 51.71(d), and 51.95(c)(1) and 10 C.F.R. Part 51 Subpart A, Appendix B, Table B-1 to Allow Consideration of Category 1 NEPA Issues (Sept. 27, 2021) [hereinafter Hearing Petition]; see also Oconee SLR Application, encl. 3, attach. 2 (Appendix E, Applicants [ER], Subsequent Operati ng License Renewal Stage, [ONS] Units 1, 2, and 3 (Mar. 2021) (ADAMS Package Accession No. ML21158A193)). Within the agencys ADAMS records system, the publicly available version of the ONS ER has been divided into seven segments, with the most relevant to this proceeding being the first, which contains (footnote continued)

claim Dukes ER is deficient in its discussion of dam-failure impacts, including its assessment of

associated severe accident mitigation alternatives (SAMAs), for which Petitioners also provide a

10 C.F.R. § 2.335 waiver request to the degree litigation of those issues might be precluded by

certain provisions in 10 C.F.R. Part 51. See Hearing Petition at 13-22. In contrast, Petitioners

other contention, labeled Contention 1, maintains that those Part 51 preclusion provisions are

limited to initial license renewals and so do not apply to second license renewal proceedings

such as this one. See id. at 11-13. Both Duke and the Nuclear Regulatory Commission (NRC)

Staff oppose Petitioners hearing request, asserting there is no basis for further adjudicatory

consideration of either their contentions or the waiver request. 3

Although Petitioners have established their representational standing to intervene, they

have failed to demonstrate that their contentions are litigable in this proceeding. Their first

contention does not raise a genuine dispute, as required by 10 C.F.R. § 2.309(f)(1)(vi), because

it asserts a legal position that has been squarely rejected in controlling Commission decisions.

Further, Petitioners request for a waiver of the NRC regulations that prohibit this Board from

adjudicating their second and third contentions fails to make the requisite prima facie showing of

special circumstances required for such a waiver under section 2.335(b). Accordingly,

Petitioners hearing and waiver requests must be denied and this proceeding terminated.

sections 1.0 through 3.0, see id. (ADAMS Accession No. ML21158A195) [hereinafter ER Part 1], and the second, which contains sections 4.0 through 10.0 and attachments A (NRC NEPA Issues for License Renewal) and B (ONS NPDES Permit), see id. (ADAMS Accession No. ML21158A196) [hereinafter ER Part 2].

3 See Applicants Answer Opposing Request for Hearing, Petition to Intervene, and Petition for Waiver Submitted by [Petitioners] (Oct. 22, 2021) at 2-4 [hereinafter Duke Answer];

NRC Staffs Answer Opposing [Petitioners] Hearing Request (Oct. 22, 2021) at 2 [hereinafter Staff Answer].

I. BACKGROUND

A. Procedural Background

Submitted in response to a July 28, 2021 Federal Register hearing opportunity notice

regarding the Duke SLR application, 4 Petitioners three contentions raise both legal and factual

questions about whether the Duke ER satisfies the requirements in the NRCs 10 C.F.R. Part 51

regulations implementing the National Environm ental Policy Act (NEPA). In their second and

third contentions, Petitioners assert that Dukes ER is deficient because it fails to (1) discuss

purported new and significant environmental impact s associated with reactor accidents at ONS

that could be caused by the failure of the nearby Jocassee Dam; and (2) properly assess new

and significant information affecting Dukes SAMA analysis intended to mitigate the effects of

such an event. See Hearing Petition at 13-18. Further, Petitioners acknowledge that such

flooding accident impact issues would otherwise be pr ecluded from consideration in this license

renewal proceeding because they involve a Categor y 1 (or Category-1 equivalent) issue listed

in Table B-1 of Part 51, subpart A, appendix B of the agencys NEPA implementation provisions.

See id. at 18-19. Petitioners thus seek a 10 C.F.R. § 2.335(b) waiver of 10 C.F.R. Part 51,

subpart A, appendix B, and sections 51.53(c)(3)(i), 51.53(c)(3)(ii)(L), 51.71(d), and 51.95(c)(1)

to permit Board consideration of both contentions in this adjudication. See id. at 19-22.

Additionally, in their first contention Petitioners interpose a legal claim that the applicability of

these Part 51 preclusion provisions is limited to initial license renewals and so do not apply to

this SLR proceeding. See id. at 11-13.

By memorandum dated September 29, 2021, the Secretary of the Commission referred

Petitioners hearing request to the Chief Administrative Judge, 5 who, in turn, on October 4,

4 See [Duke]; Duke Energy; [ONS], Units 1, 2, and 3, 86 Fed. Reg. 40,662 (July 28, 2021).

5 See Memorandum from Annette L. Vietti-Cook, NRC Secretary, to E. Roy Hawkens, Chief Administrative Judge (Sept. 29, 2021).

2021, assigned the intervention petition to this Licensing Board to rule on standing and

contention admissibility/waiver matters and preside at any hearing. 6 While not contesting

Petitioners representational standing to intervene in this proceeding, in their October 22, 2021

answers to Petitioners hearing request, both Duke and the Staff assert that Petitioners three

contentions are inadmissible and their waiver request fails to meet the requisite standards in

section 2.335. See Duke Answer at 1 n.3, 2-4; Staff Answer at 1-2. Petitioners November 5,

2021 reply maintains that their waiver request should be granted and their contentions

admitted.7

In a series of issuances, the Board scheduled an initial prehearing conference to

consider the efficacy of Petitioners hearing request. 8 A virtual conference was conducted on

November 16, 2021, during which the Board heard oral argument from the participants on the

sufficiency of Petitioners waiver and contention admissibility claims regarding Contentions 2

and 3.9 Thereafter, in a November 22, 2021 issuance, the Board requested information on the

6 See [Duke], Establishment of Atomic Safety and Licensing Board, 86 Fed. Reg. 56,299 (Oct. 8, 2021), superseded by [Duke], Establishment of Atomic Safety and Licensing Board, 86 Fed. Reg. 58,703 (Oct. 22, 2021) (providing corrected Atomic Safety and Licensing Board Panel docket number).

7 See Petitioners Reply to Oppositions by [Duke] and NRC Staff to Petitioners Hearing Request and Petition to Intervene and Waiver Petition (Nov. 5, 2021) at 1 [hereinafter Petitioners Reply]. Subsequently, on November 15, 2021, Duke submitted a motion to strike portions of Petitioners reply filing. See [Duke] Motion to Strike Portions of the Reply Filed by

[Petitioners] (Nov. 15, 2021). In accordance with a Board scheduling order, only the Petitioners submitted a response, opposing the motion. See Petitioners Response to [Dukes] Motion to Strike Portion of Petitioners Reply (Dec. 1, 2021) at 1; see also Licensing Board Order (Establishing Briefing Schedule Associated with Applicant [Dukes] Motion to Strike (Nov. 16, 2021) at 2 & n.4 (unpublished).

8 See Licensing Board Memorandum and Order (Initial Prehearing Conference Scheduling and Procedures) (Oct. 29, 2021) (unpublished) [hereinafter Conference Procedures Order]; Licensing Board Memorandum and Order (Scheduling Prehearing Conference) (Nov. 4, 2021) (unpublished); Licensing Board Memorandum and Order (Clarification on Prehearing Conference Procedures) (Nov. 10, 2021) (unpublished).

9 See Tr. at 1-134; see also Licensing Board Memorandum and Order (Adopting Transcript Corrections for Initial Prehearing Conference) (Dec. 16, 2021) (unpublished). In its October 29, 2019 order on scheduling and procedures for the initial prehearing conference, the (footnote continued)

supporting basis for a statement in a January 2011 Staff assessment regarding external flooding

concerns at ONS that the potential failure of the Jocassee Dam from either an overtopping

event or seismic event was not credible. 10 Duke and the Staff provided responses to this

request on November 29 and 30, 2021, respectively, with Petitioners responding in a filing dated

December 7, 2021.11

Board indicated that because Petitioners standing was not contested and the issue raised by their Contention 1 had been addressed by the Commission in precedential rulings that were binding on the Board, the focus of the oral argument at the conference would be on the admissibility of Petitioners Contentions 2 and 3 and the associated section 2.335 waiver request. See Conference Procedures Order at 3 & n.2.

10 Licensing Board Memorandum and Order (Request to Provide Post-Initial Prehearing Conference Information) (Nov. 22, 2021) at 1 (unpublished) (quoting Letter from Eric J. Leeds, Director, NRC Office of Nuclear Reactor Regulation (NRR), to Preston Gillespie, Site Vice President, ONS at 1 (Jan. 28, 2011) (ADAMS Accession No. ML110280153) [hereinafter January 2011 Leeds Letter]) [hereinafter Licensing Board Post-Argument Information Request Order].

11 See [Duke] Response to the Atomic Safety and Licensing Boards November 22, 2021 Order (Nov. 29, 2021); NRC Staff Response to the Atomic Safety and Licensing Boards November 22, 2021 Memorandum and Order (Nov. 30, 2021); Petitioners Response to [Duke]

and NRC Staffs Responses to ASLBS November 22 Order (Dec. 7, 2021) [hereinafter Petitioners Response to Licensing Board Post-Argument Information Request].

In addition, during the proceeding Duke submitted another item for Board consideration.

In a November 8, 2021 information notice, Duke advised the Board that it had sent a report to the NRC Office of the Inspector General (OIG) about an alleged violation of the post-employment restrictions of 18 U.S.C. § 207(a)(1) by Jeffrey Mitman, the former NRC Staff senior reliability and risk analyst who provided a declaration in support of Petitioners hearing request, to which the NRC Staff and Petitioners provided responses. See Letter from Ryan K.

Lighty, Duke Counsel, to Licensing Board at 1-3 (Nov. 8, 2021); NRC Staff Response to

[Licensing Board] November 10, 2021 Memorandum and Order and to Dukes November 8, 2021 Notification Letter (Nov. 19, 2021) at 2 (indicating OIGs internal processes allow 10 days to assess whether an allegation warrants further action, with OIGs strategic goal to complete any allegation investigation it institutes within 18 months); Petitioners Response to Dukes Notification Regarding Information Potentially Relevant to the Adjudicatory Proceeding (Nov. 19, 2021) at 2 (indicating that because Mr. Mitman was never involved in the particular matter of Dukes SLR application while an agency employee, he did not violate 18 U.S.C. § 207(a)(1));

see also Licensing Board Memorandum and Order (Schedule for Responses to Applicant

[Dukes] Information Notification (Nov. 10, 2021) (unpublished).

B. Environmental Review Process Regarding an SLR Application 12

An application for either an initial or a subsequent renewal of the 10 C.F.R. Part 50

operating license for an existing nuclear power plant is governed by the provisions of 10 C.F.R.

Part 54.13 The environmental contents of such an application are described in section § 54.23,

which provides that the application must include a supplement to the [ER] that complies with

the requirements of subpart A of 10 CFR Part 51. 10 C.F.R § 54.23. The information required

for such a supplement is outlined in section 51.53(c), which also provides in paragraph (3)(i)

that [t]he [ER] for the operating license renewal stage is not required to contain analyses of the

environmental impacts of the license renewal issues identified as Category 1 issues in

appendix B to subpart A of this part. Id. § 51.53(c)(3)(i). Other Part 51 provisions extend this

exemption for Category 1 issues to the Staffs draft and final supplements to the agencys

generic environmental impact statement (G EIS) for license renewal. See id.

§§ 51.71(d), 51.95(c)(1).

As appendix B to subpart A of Part 51 makes clear, [t]he Commission has assessed the

environmental impacts associated with granting a renewed operating license for a nuclear

power plant... [and] Table B-1 summarizes the Commissions findings on the scope and

magnitude of environmental impacts that NEPA requires to be addressed. Id. pt. 51, subpart A,

app. B. Table B-1, in turn, indicates that the [d]ata supporting this table are contained in

NUREG-1437, Revision 1, [GEIS] for License R enewal of Nuclear Plants (June 2013) and that

for Category 1 items, [t]he generic analysis of the issue may be adopted in each plant-specific

12 In a recent decision regarding a challenge to the SLR application for the North Anna facility, the licensing board provided an overview discussion about this process, some of which we reiterate here with revisions to encompass the flooding impacts challenges that are the focus of this proceeding. See Va. Elec. and Power Co. (North Anna Power Station, Units 1 and 2),

LBP-21-4, 93 NRC 179, 189-93 (2021), appeal pending.

13 An initial and subsequent renewal each add an additional 20 years to the original 40-year term of a Part 50 operating license, so that in the case of the ONS facility, if the Duke SLR application is granted, the Units 1, 2, and 3 operating license terms would run until February 6, 2053, October 6, 2053, and July 19, 2054, respectively. See Staff Answer at 3.

review. Id. tbl. B-1 nn.1-2. Commission caselaw establishes that an adjudicatory challenge

based on an applicants failure to deal appropriately with a Category 1 item constitutes an attack

on an agency rule, making a section 2.335(b) waiver the sole vehicle for raising such an issue in

an adjudication.14

Among its listings, Table B-1 specifically identifies summary environmental impact

findings relating to Postulated Accidents, including Design-basis accidents and Severe

accidents.15 Id. pt. 51, subpart A, app. B. tbl. B-1. A design-basis accident is not only

classified as a Category 1 item, but its impacts finding is designated as SMALL, 16 with [t]he

NRC staff conclud[ing] that the environmental im pacts of design-basis accidents are of small

significance to all plants. 17 Id. In contrast, severe accidents and the SAMA analyses

14 See Entergy Nuclear Vt. Yankee, LLC (Vermont Yankee Nuclear Power Station),

CLI-07-3, 65 NRC 13, 20 (2007) (citing Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI 17, 54 NRC 3, 11-13 (2001)).

15 The Table B-1 summary impact findings are based on the generic analysis of design-basis and severe accidents provided in the referenced GEIS, which was originally promulgated in 1996 and was updated in 2013. See 1 Office of Nuclear Regulatory Research (RES), NRC, [GEIS] for License Renewal of Nuclear Plants, NUREG-1437, Main Report, Final Report (May 1996) (ADAMS Accession No. ML040690705) [hereinafter 1996 GEIS]; 1 NRR, NRC, [GEIS] for License Renewal of Nuclear Plants, NUREG-1437, Main Report, Final Report (rev. 1 June 2013) (ADAMS Accession No. ML13106A241) [hereinafter 2013 Revised GEIS].

16 Table B-1 defines the significance level of a SMALL impacts designation as

[f]or the issue, environmental effects are not detectable or are so minor that they will neither destabilize nor noticeably alter any important attribute of the resource. For the purposes of assessing radiological impacts, the Commission has concluded that those impacts that do not exceed permissible levels in the Commissions regulations are considered small as the term is used in this table.

10 C.F.R. pt. 51, subpart A, app. B. tbl. B-1 n.3.

17 As the basis for its findings regarding design-basis accidents, the 1996 GEIS states that

[b]ecause of the requirements that continuous acceptability of the consequences and aging management programs be in effect for license renewal, the environmental impacts as calculated for design-basis accidents should not differ significantly from initial licensing assessments over the life of the plant, including the license renewal period. In addition, any refurbishment necessary (footnote continued)

associated with such accidents in the NEPA cont ext are classified as items under Category 2,

which is a Table B-1 listing designating those items for which the analysis reported in the

[GEIS] has shown that... additional plant specific-review is required. 18 Id. n.2. And the

Table B-1 summary impacts finding for such accidents states:

SMALL. The probability-weighted consequences of atmospheric releases, fallout onto open bodies of water, releases to groundwater, and societal and economic impacts from severe accidents are small for all plants. However, alternatives to mitigate severe accidents must be considered for all plants that have not considered such alternatives.

Id. Additionally, while a Table B-1 Category 2 site-specific issue generally would be subject to

adjudicatory challenge in a license renewal proceeding, in instances such as here in which a

to prepare for license renewal would be done in a fashion consistent with the limits set for design-basis accidents and would not alter their consequences. Accordingly, the design of the plant relative to design-basis accidents during the extended license period is considered to remain acceptable and the environmental impacts of those accidents will not be examined further in this section.

1996 GEIS at 5-12.

18 With respect to the impacts of severe accidents, under the general heading of Probabilistic Assessment of Severe Accidents, acknowledging [s]evere accidents initiated by tornadoes, floods, earthquakes, fires, and sabotage have not traditionally been discussed in quantitative terms in [final environmental statements], the 1996 GEIS goes on to note that:

Although external events are not discussed in further detail in this chapter, it should be noted that the NRC is continuing to evaluate ways to reduce the risk from nuclear power plants from external events. For example, each licensee is performing an individual plant examination to look for plant vulnerabilities to internal and externally initiated events and considering potential improvements to reduce the frequency or consequences of such events. Additionally,... as part of the review of individual license renewal applications, a site-specific consideration of alternatives to mitigate severe accidents will be performed in order to determine if improvements to further reduce severe accident risk or consequences are warranted.

Id. at 5-17, 5-18.

facility-specific SAMA analysis has been considered in an environmental impact statement, 19

under section 51.53(c)(3)(ii)(L) a license renewal contention regarding the adequacy of a

previously considered SAMA cannot be litigated absent a section 2.335(b) waiver. 20

The Commissions 2013 Revised GEIS did not change the 1996 GEISs analysis of the

impacts of either design-basis or severe accidents due to seismic events; 21 however, that GEIS

included this observation regarding the issues of seismic risk and flooding:

The NRC will not make a decision or any recommendations on the basis of information presented in this GEIS regarding seismic risk and flooding at nuclear power plants. The NRCs assessment of seismic and flood hazards for existing nuclear power plants is a separate and distinct process from license renewal reviews.

Seismic and flood hazard issues are addressed by the NRC on an ongoing basis at all licensed nuclear facilities. As such, decisions and recommendations concerning seismic risk and flooding at nuclear power plants are outside the regulatory scope of this GEIS. Nevertheless, following the accident at the Fukushima Dai-ichi nuclear power plant resulting from the March 11, 2011, Great Tohoku Earthquake and subsequent tsunami, the NRC established the Near-Term Task Force as directed by the Commission on March 23, 2011, in COMGBJ-11 -0002. The Japan Near-Term Task Force assessment resulted in the issuance of 10 CFR 50.54(f) letters on March 12, 2012, directing that seismic and flooding reevaluations be conducted at existing nuclear power plants.22

19 Because there had not been a SAMA analysis done at the time the original Part 50 operating licenses were issued for ONS Units 1, 2, and 3, consistent with Table B-1s finding for severe accidents, such an analysis was performed by Duke and reviewed by the Staff as part of the initial license renewal proceeding for the ONS facility. See NRR, NRC, [GEIS] for License Renewal of Nuclear Plants, NUREG-1437, at 5 -3 (supp. 2 Dec. 1999) (ADAMS Accession No. ML003670518) [hereinafter ONS GEIS Supp.].

20 Exelon Generation Co., LLC (Limerick Generating Stations, Units 1 and 2), CLI 7, 78 NRC 199, 211-12 (2013) (indicating section 51.53(c)(3)(ii)(L) affords the functional equivalent of the Category 1 issue preclusion established by section 51.53(c)(3)(i)), petition for review denied sub nom., NRDC v. NRC, 823 F.3d 641 (D.C. Cir. 2016).

21 See 3 NRR, NRC, [GEIS] for License Renewal of Nuclear Plants, NUREG-1437, Appendices, Final Report at B-29 to -30 (rev. 1 June 2013) (ADAMS Accession No. ML13106A244).

22 2013 Revised GEIS at 1-16 (citing Letter from Eric J. Leeds, Director, NRC NRR, and Michael R. Johnson, Director, NRC Office of New Reactors (NRO), to All Power Reactor Licensees and Holders of Construction Permits in Active or Deferred Status (Mar. 12, 2012)

(ADAMS Accession No. ML12053A340) [hereinafter March 2012 NRC Fukushima Section 50.54(f) Letter]).

Further, in the June 2013 statement of considerations accompanying the Commissions final

rule updating the regulatory framework for the 1996 GEIS, the Commission stated:

The NRCs evaluation of the consequences of the Fukushima events is ongoing. As such, the NRC will continue to evaluate the need to make improvements to existing regulatory requirements based on the task force report and additional studies and analyses of the Fukushima events as more information is learned. To the extent that any revisions are made to the NRCs regulatory requirements, they would be made applicable to nuclear power reactors regardless of whether or not they have a renewed license. Therefore, no additional analyses have been performed in the revised GEIS as a result of the Fukushima events. In the event that the NRC identifies information from the Fukushima events that constitutes new and significant information with respect to the environmental impacts of license renewal, the NRC will discuss that information in its site-specific SEISs to the GEIS, as it does with all such new and significant information. 23

Finally, for the ONS SLR application, the environmental evaluation of flooding events is

found in the ERs discussion of postulated accidents, including design-basis accidents and

severe accidents, its consideration of SAMAs, and its analysis of the possible existence of new

and significant information regarding such ac cidents and SAMAs. See ER Part 2, at 4 -2, 4-7

(tbl. 4.0-2), 4-10 (tbl. 4.0-3), 4-74 to -82. Indicating that it had considered developments in a

number of areas, including risk-beneficial plant changes implemented in response to

23 Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 78 Fed. Reg. 37,282, 37,292 (June 20, 2013); see also 2013 Revised GEIS at 1 -34 (stating no additional evaluation of seismic and flooding evaluations in this GEIS in light of ongoing Fukushima lessons-learned assessment; identification of Fukushima event-related information that is new and significant will be discussed in site-specific supplemental environmental impact statements (SEISs) to this GEIS); id. at 3 -51 (explaining NRCs well-established reactor design criteria and standards, which are intended to ensure the ability to withstand environmental hazards, such as earthquakes and flooding, without loss of capacity to perform their safety functions, requires that safety-related structures, systems, and components be designed to take into account the most severe natural phenomena historically reported for the site and surrounding area); id. at 3 -61 (indicating site-specific design bases for flood protection are prescribed by facilitys final or updated final safety analysis report (FSAR/UFSAR) and applicable technical specifications and NRC evaluates any new information or operating experience relating to flooding as it becomes available, to determine if changes are needed at existing plants and are considered during site-specific safety reviews and addressed on an ongoing basis through the reactor oversight process and other NRC safety programs separate from the license renewal process).

recommendations from the Fukushima Dai-ichi Near-Term Task Force, and citing a probabilistic

risk assessment (PRA) model to support its co nclusion about SAMAs, Duke asserted no such

new and significant information existed. See id. at 4 -74, 4-76, 4-77 to -78, 4-79, 4-82; see also

id. at 5-1 to -3 (indicating no new and significant information identified based on Dukes review

process).

C. Consideration of Dam Breach-Related Events for ONS

Relative to both their second and third contentions and their section 2.335 waiver

request, Petitioners principal focus is on the purported failure of Dukes ER to address the

environmental impacts of flooding caused by failure of the Jocassee Dam in light of newly

available information demonstrating the significance of the environmental risk, or to re-evaluate

SAMAs in light of this new information. Hearing Petition at 3. In this regard, as the ER reflects,

the Jocassee Dam is a prominent feature in the vicinity of the ONS facility. The facility itself is

located on Lake Keowee near the 150-foot Keowee earth-fill dam that, along with the 170-foot

high Little River earth-fill dam, created the lake in 1971. 24 Situated approximately 11 miles north

of the ONS facility is the much larger Jocassee Dam, completed in 1973. See ER Part 1,

at 3-76. This 385-foot high rockfill dam confi nes Lake Jocassee, which has a surface area of

some 7565 acres, a shoreline of approximately 75 miles, and a volume of 1,160,298 acre-feet.

See id.; AEC Safety Evaluation at 3 -6.

A breach of the Jocassee Dam and the impact on ONS of a resulting flood has been a

matter of evolving regulatory concern. When ONS was first licensed in the early 1970s, a

Jocassee Dam failure was not considered a credible event based on dam design and

24 See Directorate of Licensing, Atomic Energy Commission (AEC), Safety Evaluation by the [AEC Licensing Directorate] in the Matter of Duke Power Company, [ONS] Units 2 and 3, Docket Nos. 50-270/287, at 3 -5 (July 6, 1973) (ADAMS Accession No. ML12276A272)

[hereinafter AEC Safety Evaluation]; see also ER Part 1, at 3-76.

construction.25 A potential Jocassee Dam failure thus was not made part of the current

licensing basis for the facility, instead being considered a beyond-design-basis event. See Tr.

at 81-82 (Lighty). Moreover, during initial facility licensing for the ONS facility, which is situated

at 796 feet mean sea level (MSL), Duke calculated the probable maximum flood on Lake

Keowee to be 808 feet MSL, with potential wind-generated wave runup reaching 813 feet MSL.

See AEC Safety Evaluation at 3-6; J une 2016 NRC Flooding Investigative Report at 83. Duke

concluded these levels would not exceed the 815-foot MSL heights of the nearby Keowee Dam

and the protective dike for that dams hydropower intake. See AEC Safety Evaluation at 3 -6. In

its review, the AEC Staff generated similar probable maximum flood estimates and agreed that

at 815 feet MSL, the Keowee Dam and the intake protective dike could adequately withstand

the probable maximum flood so there would be no flooding problems at the ONS site. Id. at 3 -6

to -7; see also June 2016 NRC Flooding In vestigative Report at 83.

In the early 1980s, to provide an independent means of achieving and maintaining safe

shutdown of one or more ONS units under certain postulated scenarios such as fires, turbine

building floods, and security incidents, Duke built a standby shutdown facility (SSF) that

includes subsystems to provide reactor coolant makeup, auxiliary service water for steam

generator injection, electrical power via a diesel generator and batteries, and support systems.

See June 2016 NRC Flooding Investigative Report at 83. With the SSF entrance identified as

being at 797 feet MSL, the Staffs safety evaluation at that time determined this to be above the

maximum expected flood onsite and therefore consistent with NRC flood protection

requirements and guidelines. See id. However, as part of a 1983 PRA conducted by Duke and

25 See Letter from Stephen G. Burns, NRC Chairman, to Carolyn N. Lerner, Special Counsel, U.S. Office of Special Counsel (OSC), encl. at 83 (June 30, 2016) (NRC Flooding Working Group, Investigative Report to the Chairman of the U.S. NRC Re: OSC File No. 01-15-5254 (undated)), https://osc.gov/Documents/Public%20Files/FY17/DI-15 -5254/DI-15-5254%20Agency%20Report.pdf [hereinafter June 2016 NRC Flooding Investigative Report].

the Electric Power Research Institute, after considering various Jocassee Dam failure modes,

timing possibilities, and lake levels, Duke found that while the estimated dam-failure frequency

was 2.5E-05 per year (or about once in 40,000 years), there nonetheless could be a resulting

flood above plant-yard grade. 26 At that time, among the measures Duke implemented to

address this risk was construction of an additional five-foot flood barrier at the SSF doorway to

protect the SSF from floods up to 801 feet MSL. See March 1994 Hampton Letter Attachment

at 3; June 2016 NRC Flooding Investigative Report at 83. Thereafter, as part of its 1990

response to NRC Generic Letter 88 -20 calling for individual plant examinations (IPEs) to

address severe accident issues, Duke submitted a 1987 PRA, initiated to take into account plant

changes, current materials, and data, that found the Jocassee Dam failure frequency was

estimated to be 1.58E-05 per year (or once in about 63,000 years). 27

The early 1990s brought another Jocassee Dam inundation study, this one in response

to a Federal Energy Regulatory Commission (FERC) mandate. A 1992 Duke inundation study

indicated that, based on the latest computer models and a number of FERC-required

conservative assumptions, the estimated yard flood level of approximately 16.5 feet (an

equivalent of approximately 813 feet MSL) woul d render inoperable all SSF systems necessary

for safe shutdown and maintenance of the three ONS reactors. 28 Further, as a consequence of

26 See Letter from J.W. Hampton, Vice President, ONS, to NRC Document Control Desk, attach. at 3 (Mar. 14, 1994) (ADAMS Accession No. ML15261A316) [hereinafter March 1994 Hampton Letter Attachment]; see also June 2016 NRC Flooding Investigative Report at 83; Letter from Dave Baxter, Vice President, ONS, to NRC Document Control Desk, attach. 1, at 7 (Sept. 26, 2008) (Jocassee Project Description and Oconee Flooding Licensing Basis History)

(ADAMS Accession No. ML082750106) [hereinafter September 2008 Baxter Letter].

27 See March 1994 Hampton Letter Attachment at 3 (referencing NRC Letter to All Licensees Holding Operating Licenses and Construction Permits for Nuclear Power Reactor Facilities, [IPE] for Severe Accident Vulnerabilities - 10 CFR § 50.54(f), Generic Letter No. 88-20 (Nov. 23, 1988), https://www.nrc.gov/reading-rm/doc-collections/gen-comm/gen-letters/1988/gl88020.html); June 2016 NRC Floodi ng Investigative Report at 83, 84.

28 See January 2011 Leeds Letter, encl. at 1 (Safety Evaluation by [NRR] Related to

[Duke] Confirmatory Action Letter - Commitments to Address External Flooding Concerns, Closure of Inundation Site Results [ONS], Docket Nos. 50 -269, 50-270, and 50-287) [hereinafter (footnote continued)

a 1994 agency inspection report regarding ONS service water system operational performance

that raised questions about the difference between the 1992 FERC-associated review and the

1990 Duke PRA study,29 in 1995 Duke submitted to the NRC another analysis of Jocassee Dam

flood risk as part of an Individual Plant Exami nation for External Events (IPEEE) that showed

the estimated core damage frequency (CDF) as 7.0E-06 per year (or about once in 143,000

years) for a Jocassee Dam seismic failure. 30 Moreover, as part of a 1999 review of the

July 1998 Duke application for the initial Part 54 renewal of the ONS Part 50 facility operating

licenses, the Staffs GEIS supplement determined there was no new and significant information

regarding either design-basis accidents or severe accidents and that Dukes SAMA analysis for

the facility, including those items associated with a potential Jocassee Dam failure, was

January 2011 Staff Safety Evaluation]; June 2016 NRC Flooding Investigative Report at 83-84; see also March 1994 Hampton Letter Attachment at 3-4.

29 See Letter from Albert F. Gibson, Division Director, NRC Region II, to J.W. Hampton, Vice President, ONS at 2 (Feb. 11, 1994) (noting 1990 Duke IPE submittal is inconsistent with NRC inspection finding that SSF could not withst and postulated Jocassee Dam failure) (ADAMS Accession No. ML15261A308); id. encl. 3, at 29-30 (NRC Region II, Inspection Report Nos. 50-269/93-25, 50-270/93-25, and 50-287/93-25 (Feb. 10. 1994) (indicating, contrary to 1990 Duke IPE submittal, recently completed Jocassee Dam failure reanalysis for another regulatory agency resulted in a flood height at least 10 feet above the SSF wall) (ADAMS Accession No. ML15261A314); Letter Albert F. Gi bson, Division Director, NRC Region II, to J.W. Hampton, Vice President, ONS, encl. 2, at 16 (Dec. 19, 1994) (NRC Region II, Inspection Report Nos. 50-269/94-31, 50-270/94-31, and 50-287/94 -31 (Dec. 16, 1994) (closing inspection item 50-269, 270, 287/93 11 based on FSAR change removing SSF mitigation for a rapid Jocassee Dam failure and Duke indication it will provide external flood risk reanalysis as part of 1995 IPE external events submittal)) (ADAMS Accession Nos. ML16154A725 (transmittal letter) and ML16154A728 (enclosure 2 inspection report)).

30 See Duke Power Co., ONS, IPEEE Submittal Report at 5-27 (Dec. 21, 1995) (ADAMS Accession No. ML15118A407); see also September 2008 Baxter Letter at 8; Letter from David E. LaBarge, Senior Project Manager, NRC NRR, to W.R. McCollum, Jr., Vice President, ONS, encl. 1, at 2 (Mar. 15, 2000) (Staff Evaluation Re port of [IPEEE] Submittal by [Duke] for [ONS],

Units 1, 2, and 3) (indicating [e]xternal flooding events contribute about 7.0E-6/[reactor year] to the CDF) (ADAMS Accession No. ML003694349); June 2016 NRC Flooding Investigative Report at 84. The December 1995 Duke IPEEE was submitted pursuant to Generic Letter 88-20, Supplement 4. See NRC Letter to All Licensees Holding Operating Licenses and Construction Permits for Nuclear Power Reactor Facilities, [IPEEE] for Severe Accident Vulnerabilities - 10 CFR § 50.54(f), Generic Letter No. 88-20 (supp. 4 June 28, 1991),

https://www.nrc.gov/reading-rm/doc-collections /gen-comm/gen-letters/1988/gl88020s4.html.

acceptable. See ONS GEIS Supp. at 5 -1 to -14; June 2016 NRC Flooding Investigative Report

at 84.

The issue of Jocassee Dam failure and ONS facility flooding next arose in the context of

an April 2006 NRC Staff inspection report. 31 This report detailed the circumstances surrounding

Dukes June 2005 identification of a breach of a passive flood protection barrier for the SFF

when Duke in August 2003 attempted to accommodate a temporary electrical power cable

routing by removing an access cover that was part of that barrier. See April 2006 Staff

Inspection Report at 6; June 2016 NRC Flooding Investigative Report at 85. Noting that the

SSF external flood barrier was designed to protect that building against a five-foot flood and

citing a recently completed flood analysis indicat[ing] that a Jocassee Dam failure could result

in an external flood height of at least 10 [feet] and the 1992 FERC study predicting such a

failure could result in flood waters of approximately 12.5 to 16.8 feet deep at ONS, the report

characterized the issue of flood protection measures as unresolved pending further Staff

inspection and assessment. April 2006 Staff Inspection Report at 7. Thereafter, in August

2006 the NRC Staff made a preliminary performance deficiency white finding determination of

low to moderate risk significance for this uncompensated for and uncontrolled flowpath [that]

existed through the SSF wall, which could have rendered the SSF unable to perform its

intended functions in the event of an external flood in excess of 4.6 feet (800.625 feet above

[MSL]).32 The Staff found this unacceptable from either a quantitative/risk analysis or

qualitative/deterministic perspective because it (1) resulted in an increase in risk, with an

estimated CDF change of 3.3E-06 per year; and (2) failed to preserve defense-in-depth in that

31 See Letter from D. Charles Payne, Acting Branch Chief, NRC Region II, to B.H.

Hamilton, Site Vice President, ONS, encl. (Apr. 28, 2006) (NRC Integrated Inspection Report 05000269/2006002,05000270/2006002, 05000287/2006002) (ADAMS Accession No. ML061180451) [hereinafter April 2006 Staff Inspection Report].

32 See Letter from Charles Casto, Division Director, NRC Region II, to B.H. Hamilton, Site Vice President, ONS at 2 (Aug. 31, 2006) (ADAMS Accession No. ML080780143)

[hereinafter August 2006 Casto Letter].

SSF unavailability meant no other event mitigation systems would be available to prevent core

damage. August 2006 Casto Letter at 2. With minor adjustments, this white finding was

finalized in November 2006. 33

During the next eighteen months, Duke sought unsuccessfully to overturn this finding in

a series of appeals and requests for reconsideration. See June 2016 NRC Flooding

Investigative Report at 85. This included Staff consideration of a January 2007 updated

Jocassee Dam fragility study submitted by Duke in February 2007. 34 In its November 2007

reconsideration denial, while agreeing with Duke that the seismic contribution to the Jocassee

Dam failure frequency was negligible so that a Duke analysis of a random or sunny-day dam

failure was most appropriate, 35 the Staff indicated that, rather than the Duke-provided estimate

of 1.4E-05 per year (once in about 71,000 years), an estimated dam-failure frequency

of 1.8E-04 per year (once in about 5500 years) was appropriate. See November 2007 Staff

White Finding Reconsideration Denial at 1; June 2016 NRC Flooding Investigative Report at 85.

Accordingly, while acknowledging there are some uncertainties in such a quantitative/risk

analysis estimate, the Staff concluded that the large increase in the sunny day dam-failure

33 See Letter from William D. Travers, Regional Administrator, NRC Region II, to B.H.

Hamilton, Site Vice President, ONS at 2 (Nov. 22, 2006) (ADAMS Accession No. ML063260282).

34 See Letter from William D. Travers, Regional Administrator, NRC Region II, to Bruce H. Hamilton, Site Vice President, ONS at 1 (Nov. 20, 2007) (ADAMS Accession No. ML073241045) [hereinafter November 2007 Staff White Finding Reconsideration Denial];

see also June 2016 NRC Flooding Investigative Report at 85; Letter from Bruce H. Hamilton, Site Vice President, ONS, to NRC Document Control Desk at 1 (Feb. 5, 2007) (ADAMS Accession No. ML070440337).

35 As the June 2016 NRC Flooding Investigative Report noted, [a] sunny-day failure is a random failure of a dam, not caused by a flood or earthquake. These dam failures may occur because of failures of embankments, foundations, or other dam components, potentially because of an inherent design flaw. NRC guidance indicates that sunny-day failures cannot be screened out. June 2016 NRC Flooding Invest igative Report at 49 n.104 (citing Japan Lessons-Learned Project Directorate, JLD-ISG-2013 -01, Guidance [f]or Assessment of Flooding Hazards Due to Dam Failure, Interim Staff Guidance at 6-1 (rev. 0 July 29, 2013) (ADAMS Accession No. ML13151A153) [hereinafter July 2013 JLD-ISG-2013 -01 Interim Staff Guidance]).

frequency more than compensates for the uncertainties in the quantitative considerations so as

to provide confidence that the Staffs supporting risk analysis is appropriately characterized as

[white/]low to moderate. November 2007 Staff White Finding Reconsideration Denial at 2.

While this resolved the controversy over the April 2006 SSF flood barrier breach

inspection finding, it did not alleviate the NRC Staffs concern about ONS site external flooding,

including a possible Jocassee Dam failure. In August 2008, the Staff sent Duke a 10 C.F.R.

§ 50.54(f) request seeking information t o determine whether unfavorable physical

characteristics of the site exist relative to a Jocassee Dam failure, and whether [ONS] lacks

appropriate and adequate compensating engineering safeguards for such an event. 36 There

followed a series of communications between the Staff and Duke, 37 culminating in a June 3,

2010 Duke letter listing compensatory measures that Duke had undertaken or would undertake

36 Letter from Joseph G. Giitter, Division Director, NRC NRR, to Dave Baxter, Vice President, ONS at 1 (Aug. 15, 2008) (ADAMS Accession No. ML081640244) [hereinafter August 2008 Staff Jocassee Dam Failure Sectio n 50.54(f) Letter]; see also June 2016 NRC Flooding Investigative Report at 85-86.

37 Among the communications during this nearly two-year period were an initial September 2008 Duke response in which it committed to doing inundation and sensitivity analyses; an April 2009 Staff request for additional information (RAI) outlining the Staffs views on what these studies should include; a November 2009 Duke response to the Staffs April 2009 request providing the requested studies and a corrective action plan; a January 2010 Duke description of interim measures taken or planned to mitigate flooding from a sunny-day Jocassee Dam failure, including raising the SSF flood wall by 2.5 feet to 803.5 feet MSL; a January 2010 set of additional Staff RAIs requesting information to aid in determining whether the ONS site is adequately protected from external flooding events for the entire Jocassee earthen works; and Dukes March 2010 response to the additional Staff RAIs. See September 2008 Baxter Letter, attach. 4 (Regulatory Commitments); Letter from Joseph G. Giitter, Division Director, NRC NRR, to Dave Baxter, Vice President, ONS at 1-3 (Apr. 30, 2009) (ADAMS Accession No. ML090570779) [hereinafter April 2009 Giitter Letter]; Letter from Dave Baxter, Vice President, ONS, to NRC Document Control Desk at 3 (Nov. 30, 2009) (ADAMS Accession No. ML093380701); Letter from Dave Baxter, Vice President, ONS, to NRC Document Control Desk, attach. 1, at 3 & n.2 (Jan. 15, 2010) (In Place Measures that Address Postulated External Flood Threat Issues) (ADAMS Accession No. ML100210199); id. attach 2 (Interim Commitments and Implementation Dates); Letter from Joseph G. Giitter, Division Director, NRC NRR, to Dave Baxter, Vice President, ONS at 1 (Jan. 29, 2010) (ADAMS Accession No. ML100271591); Letter from Dave Baxter, Vice President, ONS, to NRC Document Control Desk, attach 1 (Mar. 5, 2010) (RAI Responses) (ADAMS Accession No. ML103430047); see also June 2016 NRC Flooding Investigative Report at 85-86.

to mitigate external flooding hazards resulting from a potential Jocassee Dam failure. 38 The

NRC Staff responded on June 22, 2010, with a confirmatory action letter (CAL) requiring that (1)

the June 3, 2010 compensatory measures, as list ed in an enclosure with implementation dates,

remain in place until a final resolution of the Jocassee Dam failure-related ONS site inundation

matter was reached; (2) Duke provide all documentation needed to demonstrate it had

conducted an appropriate bounding analysis of ONS inundation from a Jocassee Dam failure;

and (3) in addition to the June 2010 compensatory measures, Duke provide a list of all

modifications necessary to adequately mitigate the inundation and make such modifications. 39

With respect to the June 2010 Staff CAL requirements regarding mitigating measures, in

a November 2010 letter Duke stated it had completed all those items identified except for an

emergency response drill that it planned for December 2010, 40 and subsequently completed. 41

Further, in an April 2011 response to the June 2010 Staff CAL request for a list of all additional

modifications necessary to adequately mitigate inundation, Duke provided an overarching

inundation mitigation strategy and outlined its plant modification plans to protect the SSF from

flooding and extend its operational duration, which included constructing a dedicated,

flood-protected offsite power path and several additional walls and sets of flood barriers as well

38 See Letter from Dave Baxter, Vice President, ONS, to NRC Document Control Desk, attach. 1 (June 3, 2010) (Status of External Flood Commitments) (ADAMS Accession No. ML101610083); see also June 2016 NRC Floodi ng Investigative Report at 86-87.

39 See Letter from Luis A. Reyes, Administrator, NRC Region II, to David A. Baxter, Site Vice President, ONS at 1 (June 22, 2010) (ADAMS Accession No. ML101730329) [hereinafter June 2010 Staff CAL]; id., encl. (Compensatory Measures).

40 See Letter from T. Preston Gillespie, Jr., Vice President, ONS, to Luis Reyes, Regional Administrator, NRC Region II, at 1 (Nov. 29, 2010) (ADAMS Accession No. ML103490330); id., attach. 1 (Status of External Flood Compensatory Measures); see also June 2016 NRC Flooding Investigative Report at 87.

41 See Memorandum from Patrick L Hiland, Division Director, NRC NRR, and Joseph G.

Giitter, Division Director, NRC NRR, to John A. Grobe, Deputy Director, NRC NRR, et. al, Technical Basis for the Timeline to Resolve External Flooding at Oconee at 3 (Mar. 5, 2011)

(ADAMS Accession No. ML103410042). The date on this letter is March 5, 2010, but the concurrence block makes it clear this was a 2011 letter. See id. at 4.

as providing a means of spent fuel pool makeup water. 42 In reviewing these Duke proposals,

the Staff requested and received from Duke additional information on the ONS design basis, the

justification for the assumptions supporting and a summary of the actions needed for

undertaking the proposed mitigation strategies, the quality standards applied to the calculations

and procedures supporting those strategies, and the construction codes and seismic criteria for

the additional flood walls. 43 And based on its review of this information, in September 2012 the

NRC Staff accepted Dukes proposal to design and construct the structures protecting against

sunny-day dam failures using FERC-accepted structural codes, with modification

implementation expected by about June 2016. 44

As to the June 2010 Staff CAL direction to provide ONS site inundation bounding

documentation, in an August 2010 response Duke included the results of simulation modeling

intended to determine accurately ONS site water levels resulting from a hypothetical Jocassee

Dam failure.45 In a January 28, 2011 letter, the NRC Staff provided its assessment of this ONS

42 See Letter from T. Preston Gillespie, Jr., Vice President, ONS, to Victor McCree, Regional Administrator, NRC Region II, at 2 (Apr. 29, 2011) (ADAMS Accession No. ML111460063); id. attach 1 (Jocassee Dam Failure Flood Mitigation Strategy); id. attach. 2, at 2 (Description of Modifications).

43 See Letter from John A. Grobe, Deputy Director, NRC NRR, to Preston Gillespie, Site Vice President, ONS, at 1-2 (Aug. 18, 2011) (ADAMS Accession No. ML12363A090); Letter from T. Preston Gillespie, Jr., Vice President, ONS, to NRC Document Control Desk, encl.

(Oct. 17, 2011) (Response to August 18, 2011 [RAIs] Regarding ONS External Flooding)

(ADAMS Accession No. ML11294A341); Letter from Michele G. Evans, Division Director, NRC NRR, to Preston Gillespie, Site Vice President, ONS at 1 (May 15, 2012) (ADAMS Accession No. ML12129A186); Letter from T. Preston Gillespie, Jr., Vice President, ONS, to NRC Document Control Desk, attach. 1 (June 14, 2012) (Response to May 15, 2012, [RAIs]

Regarding ONS External Flooding) (ADAMS Accession No. ML12167A372); id. attach. 2 (Codes and Standards for [ONS] External Flood Mitigation Solutions).

44 See Letter from Michele G. Evans, Division Director, NRC NRR, to Preston Gillespie, Site Vice President, ONS at 1-2 (Sept. 20, 2012) (ADAMS Accession No. ML12219A163)

[hereinafter September 2012 Evans Letter]; see also June 2016 NRC Flooding Investigative Report at 87. The 2016 implementation date reflected the circumstances surrounding the agencys then-ongoing post-Fukushima domestic reactor safety review process concerning, among other things, flooding and seismic events. See infra note 46 and accompanying text.

45 See Letter from Dave Baxter, Vice President, ONS, to NRC Document Control Desk, (footnote continued)

site inundation bounding information, noting again that a random or sunny-day failure scenario

was selected after a failure modes evaluation determined that the potential failure of the

Jocassee Dam from either an overtopping event or seismic event was not credible. January

2011 Leeds Letter at 1. In the accompanying January 2011 Staff Safety Evaluation, while

noting that certain of the simulation model runs performed by Duke showed the greatest depth

at the SSF of 19.5 ft. (or approximately 816 MSL), the Staff agreed with the licensees

approach that the appropriate modeling methodology for this sunny-day failure scenario

showed that the maximum water levels at the SSF would be 815 feet MSL, the same as the top

elevation of the intake dike that will allow flooding of the plant upon overtopping, independent of

the breach location(s). January 2011 Staff Safety Evaluation at 12. Also, the Staff determined

that the licensee ha[d] included conservatisms of the parameters utilized in the dam breach

scenario such that this scenario will bound the inundation at ONS, therefore providing

reasonable assurance for the overall flooding scenario at the site, and this scenario will be the

new flooding basis for the site. Id. at 13. Duke thus having submitted what the Staff

considered the documentation necessary to demonstrate a Jocassee Dam failure-associated

ONS site inundation had been bounded, and Duke having committed to keep the June 2010

compensatory measures in place until a final resolution ha[d] been agreed upon between Duke

and the NRC staff, the Staff concluded that this te chnical assessment officially closes the CAL

action requiring Duke to provide adequate scenario-bounding documentation. Id.

A little more than a month later, a March 11, 2011 earthquake and resulting tsunami

caused, over the next several days, reactor core meltdowns and hydrogen explosions at the

Fukushima Dai-ichi facility in Japan. In the aftermath of this severe accident, agency attention

turned to the safety of United States reactors from seismic and flooding events. Consequently,

attach. 1 (Aug. 2, 2010) (RAI Responses) (ADAMS Accession No. ML102170006) [hereinafter August 2010 Duke Flooding Evaluation].

in March 2012 the agency issued a section 50.45(f) request for information (RFI) to Duke and all

other power reactor licensees to provide inform ation to support the NRC staff's evaluation of

whether further regulatory action was needed in the areas of seismic and flooding design.

March 2012 NRC Fukushima Section 50.54(f) Letter at 2. Specifically, using present-day NRC

requirements and guidance as well as current methodologies and practices, these licensees

were to perform reevaluations of seismic hazards at their sites and all appropriate external

flooding sources, including the effects from local intense precipitation on the site, probable

maximum flood (PMF) on stream and rivers, storm surges, seiches, tsunami, and dam failures.

Id., encl. 1, at 5-6 (Recommendation 2.1: Seismic); id., encl. 2, at 6 (Recommendation 2.1:

Flooding). Moreover, regarding the June 2010 Staff CAL, in its September 2012 letter accepting

Dukes proposal to design and construct Jocass ee Dam failure inundation mitigation structures,

the NRC Staff advised Duke that the June 2010 CAL would remain active until it can be

superseded by regulatory action related to the Fukushima responses. 46 Also, according to this

Staff letter, if the post-Fukushima RFI review indicated that the Jocassee Dam will not fail due

to overtopping or seismic failure, and the NRC sta ff review supports this determination, then the

NRC will accept the [January 2011 Staff Safety Evaluation] as defining the bounding flood at the

Oconee site due to dam failure. September 2012 Evans Letter at 2.

In response to the NRC Staffs March 2012 Fukushima RFI, in March 2013 Duke

submitted a flood hazard reevaluation report (FHRR), 47 which Duke updated in March 2015 in

response to Staff RAIs requesting a dam-failure reanalysis applying alternate breach

46 September 2012 Evans Letter at 2; see also Memorandum to File from John P. Boska, Senior Project Manager, NRC NRR, encl. at 5, 7 (Mar. 19, 2013) (LlC-504 Assessment, Integrated Risk-Informed Decision Making Process for Emergent Issues Regarding External Flooding Resulting From Dam Failure, [Duke], [ONS], Units 1, 2, and 3, Docket Nos. 50-269, 50-270, and 50-287) (ADAMS Accession No. ML16070A287).

47 See Letter from T.P. Gillespie, Jr., Vice President, ONS, to NRC Document Control Desk at 1 (Mar. 13, 2013) (ADAMS Accession No. ML13079A227).

methodologies and a recently-completed Jo cassee Dam-specific seismic analysis.48 Further, in

an August 2014 letter to the Staff, acknowledging that [a]ll CAL compensatory measures will

remain in effect until regulatory action allows their suspension, Duke indicated its

understanding that (1) the FHRR would be the basis for further facility modifications rather than

the still-outstanding June 2010 Staff CAL; and (2) final approval of the FHRR would allow the

June 2010 Staff CAL flooding basis to be replaced by the Fukushima flood analysis of upstream

dam failures, which, in turn would allow Duke to update its June 2010 Staff CAL response with a

new mitigation strategy and corresponding modifications. 49

In a September 2015 interim Staff response (ISR) letter, based on its review of Dukes

FHRR addressing ONS reevaluated flooding haza rds relative to both design-basis and

beyond-design-basis external events, the NRC Staff (1) concluded the FHRR was suitable for

assessing mitigating strategies and developing a mitigating strategies assessment in that it

provided Duke with suitable input values associated with the three reevaluated flood hazard

mechanisms, including dam failure, that exceeded ONSs current design basis; and (2) directed

that these values be utilized in an additional focused evaluation addressing those flooding

hazards.50 The September 2015 ISR Letter also indicated that the Staffs soon-to-be issued

report documenting the basis for these conclusions would address the impact of FHRR review

on the previous ONS flooding analyses submitted in response to the June 2010 Staff CAL. See

September 2015 ISR Letter at 2. Then, after providing Duke with a January 2016 audit report

48 See Letter from Scott L. Batson, Vice President, ONS, to NRC Document Control Desk at 2 (Mar. 6, 2015) (ADAMS Accession No ML15072A106).

49 See Letter from Scott L. Batson, Vice President, ONS, to NRC Document Control Desk at 1, 2 (Aug. 8, 2014) (ADAMS Accession No. ML14225A540).

50 See Letter from Juan F. Uribe, Project Manager, NRC NRR, to Scott Batson, Vice President, ONS at 2 (Sept. 24, 2015) (ADAMS Accession No. ML15239B261) [hereinafter September 2015 ISR Letter]; id., encl. 1, tbl. 2 (Recalculated Flood Hazards for Flood-Causing Mechanisms for Use in the [Mitigating Strategies Assessment]).

detailing the Staffs regulatory review process regarding Dukes FHRR submittals, 51 the Staff

issued its April 14, 2016 FHRR final assessment. 52

The Staffs April 2016 FHRR final assessment considered the adequacy of FHRR

information regarding Jocassee Dam hydrologic overtopping, seismic failure, and sunny-day

failure.53 The Staff concluded that (1) Duke had conducted the hazard reevaluation using

appropriate present-day methodology and current regulatory guidance; and (2) Dukes

information regarding these reevaluated flood-causing mechanisms would be appropriate input

to use in its additionally required focused evaluation. See April 2016 Staff FHRR Final

Assessment at 41. The Staff also concluded, ba sed on its evaluation of the FHRR information,

that both Jocassee Dam hydrologic overtopping and seismically induced failure modes were

not reasonable based on present-day methodologies and guidance. Id. at 21, 27.

Additionally, the final FHRR assessment provided a summary comparison of Dukes

2010 and post-Fukushima-related 2015 flood hazards evaluations, noting that although both

appropriately followed engineering and regulatory guidance, the 2010 evaluation was based

on several conservative assumptions while the 2015 evaluation (1) removed some

conservatism in the 2010 analysis; (2) was consistent with Commission direction regarding the

March 2012 Fukushima RFI flood hazard reevaluations; and (3) provided an appropriate basis

51 See Letter from Juan Uribe, Project M anager, NRC NRR, to Scott Batson, Vice President, ONS, at 1 (Jan. 12, 2016) (ADAMS Accession No. ML15355A164).

52 See Letter from Jack R. Davis, Division Director, NRC NRR, and Anne Boland, Division Director, NRC NRR, to Scott Batson, Site Vice President, ONS (Apr. 14, 2016)

(ADAMS Accession No. ML15352A207) [hereina fter April 2016 Davis/Boland FHRR Final Assessment Letter].

53 See id., encl. 1, at 19-38 (Staff Assessment by [NRR] Related to [FHRR] Near-Term Task Force Recommendation 2.1, [ONS] Units Nos. 1, 2, and 3, Docket No. 50 -269, 50-270, and 50-287) (ADAMS Accession No. ML17335A438) [ hereinafter April 2016 Staff FHRR Final Assessment]. Although this enclosure and the enclosure cited in footnote 54 below were publicly-withheld attachments to the April 2016 Davis/Boland FHRR Final Assessment Letter cited in note 52, when these enclosures later were publicly released they were assigned the cited ADAMS accession numbers.

for assessing the need for specific actions included in the June 2010 Staff CAL. 54 And in this

regard, the Staff indicated that the revised 2015 Duke FHRR provided an acceptable

alternative flood hazard analysis for ONS for the purpose of meeting the terms of the [June

2010 Staff CAL] and that following completion of the associated flooding modifications... the

NRC [would] evaluate whether the terms of the [June 2010 Staff] CAL [had] been satisfied.

April 2016 Davis/Boland FHRR Final Assessment Letter at 2.

Thereafter, in a late April 2016 letter, Duke informed the NRC Staff that it had completed

the five external flood modification measures it committed to implementing in response to the

June 2010 Staff CAL to support dam-failure flood mitigation. 55 In a June 2016 report

documenting a May 2016 inspection, the Staff concluded that its review of those actions, as well

as previously completed inspection activities related to interim compensatory measures, and

the [April 2016 Davis/Boland FHRR Final Assessm ent Letter], provide adequate assurance that

the required terms as directed by the [June 2010 Staff] CAL have been satisfied by ONS. The

[June 2010 Staff CAL] is now closed. 56 Additionally, the Staff reiterated its intent, as outlined in

the April 2016 Staff Final FHRR Assessment, to address ongoing external flooding issues for

ONS within the framework of the Fukushima Near-Term Task Force Recommendation 2.1

process, to ensure consistency in the staffs approach to addressing these issues for all plants.

June 2016 Haney Letter at 1.

In July 2017, Duke submitted its Staff-mandated focused evaluation. In assessing the

three reevaluated flood hazard mechanisms, including dam failure, that the Staff identified in its

54 See id., encl. 2, at 4 (Comparison of the 2010 and 2015 Postulated Jocassee Dam Failure and Downstream Flooding Evaluations by [Duke]) [hereinafter Staff 2010/2015 Evaluation Comparison].

55 See Letter from Scott L. Batson, Vice President, ONS, to NRC Document Control Desk at 2 (Apr. 29, 2016) (ADAMS Accession No. ML16131A671).

56 Letter from Catherine Haney, Regional Administrator, NRC Region II, to Scott Batson, Site Vice President, ONS, at 1 (June 16, 2016) (ADAMS Accession No. ML16168A176)

[hereinafter June 2016 Haney Letter].

September 2015 ISR Letter as requiring additional evaluation, Duke stated that, per current

NRC-endorsed Nuclear Energy Institute (NEI) guidanc e, ONS has reliable, passive protection

of [k]ey [s]tructures, [s]ystems, and [c]omponents... to maintain [k]ey [s]afety [f]unctions... for

the three flood causing mechanisms. 57 The NRC Staff then issued a June 2018 focused

evaluation assessment finding that the [ONS focused evaluation] was performed consistent

with the [NRC-endorsed NEI] guidance and that Duke has demonstrated that effective flood

protection, if appropriately implemented, exists for the... dam breach flood mechanisms during

a beyond-design-basis external flooding event. 58 The Staff indicated as well that additional

regulatory actions associated with the reevaluated flood hazard are not warranted and that

Duke has satisfactorily completed providing responses to the 50.54(f) activities associated with

the reevaluated flood hazards. 59 Finally, in November 2020, the NRC Staff provided Duke with

a letter documenting that Duke had provided the information requested by the NRC in

conjunction with the March 2012 NRC Fukushima Se ction 50.54(f) Letter and that the actions

57 See Letter from Thomas D. Ray, Vice President, ONS, to NRC Document Control Desk at 2 (July 31, 2017) (ADAMS Accession No. ML17222A068). As referenced in this letter, see id., an NEI guidance document received Staff endorsement as providing appropriate methods for satisfying the March 2012 NRC Fukushima Section 50.54(f) Letter, see NRR, NRC, JLD-ISG-2016-01, Guidance for Activities Related to Near-Term Task Force Recommendation 2.1, Flooding Hazard Reevaluation; Focused Evaluation and Integrated Assessment, Interim Staff Guidance at 4 (rev. 0 July 11, 2016) (ADAMS Accession No. ML16162A301).

58 Letter from Juan F. Uribe, Project Manager, NRC NRR, to Ed Burchfield, Jr., Site Vice President, ONS, at 2 (June 18, 2018) (ADAMS Accession No. ML18141A755) [hereinafter June 2018 Uribe Letter].

59 Id., encl. 2, at 10 (Staff Assessment by [NRR] Related to the Focused Evaluation for

[ONS], Units 1, 2, and 3 as a Result of the Reevaluated Flooding Hazard Near-Term Task Force Recommendation 2.1 - Flooding (CAC Nos. MG0265, MG0266, MG0267, and EPID L-2017-JLD-0029). The Staffs ONS focused evaluation assessment also indicated that Duke submitted an ONS mitigating strategies assessment in January 2017, which the Staff in a July 2017 evaluation found was performed consistent with the NRC-endorsed NEI guidance and demonstrated that the mitigation strategies, if appropriately implemented, are reasonably protected from reevaluated flood hazard conditions for beyond-design-basis external flooding events. Id. at 2-3.

required by the [NRC] in orders issued following the accident at the Fukushima Dai-ichi Nuclear

Power Station have been completed for [ONS]. 60

It is against this regulatory and historical background that we consider Petitioners

hearing request.

II. STANDING

While Petitioners standing has not been contested, an independent Board determination

is required about whether each has fulfilled the requirements to establish standing to intervene

in this proceeding.61 And in that regard, as the Commission noted recently, to establish the

representational standing claimed by Petitioners, in addition to providing the information

required by 10 C.F.R. § 2.309(d)(1) to identify the organization seeking to intervene and its

interest in the proceeding as it is seeking to represent the interests of its members, the

organization also must show that at least one member has standing and has authorized the

organization to represent [the member] and to request a hearing on [the members] behalf. 62

In this instance, Petitioners rely on the proximity presumption as a principal element for

establishing their representational standing. Recently applied by several licensing boards in

SLR proceedings, this presumption excuses a petitioner otherwise meeting the requirements for

standing from having to make a specific showing of injury in fact so long as that petitioner

resides, works, or otherwise has regular contacts within a 50-mile radius of the reactor facility in

60 Letter from Robert J. Bernardo, Project Manager, NRC NRR, to J. Ed Burchfield, Jr.,

Site Vice President, ONS, at 1 (Nov. 17, 2020) (ADAMS Accession No. ML20304A369)

[hereinafter November 2020 Bernardo Letter].

61 See 10 C.F.R. § 2.309(d)(2); see also Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units 2 and 3), LBP 5, 89 NRC 483, 491 (2019), affd on other grounds, CLI-20-11, 92 NRC 335 (2020).

62 S. Nuclear Operating Co. (Vogtle Electric Generating Plant, Unit 3), CLI 6, 91 NRC 225, 237-38 (2020).

question.63 Member affidavits supplied with Petitioners hearing request show that each has at

least one member residing within 50 miles of the ONS facility who has met the other standing

requirements specified above. 64

We thus conclude that each of the Petitioners has established its representational

standing to intervene in this proceeding.

III. ADMISSIBILITY OF PETITIONERS CONTENTION 1

Beyond establishing standing, a petitioner in a licensing proceeding also must tender at

least one litigable contention for its hearing request to be granted. In the context of this SLR

proceeding, to establish the litigability of their three contentions, Petitioners must establish both

that (1) the contentions are admissible pursuant to the standards in 10 C.F.R § 2.309(f)(1); and

(2) with respect to Contentions 2 and 3, the section 2.335 standards have been met for

obtaining a waiver of the restriction on challenging a Commission rule in the context of an

adjudicatory proceeding. We begin by addressing the admissibility of Petitioners first issue

statement under section 2.309(f)(1).

A. Contention Admissibility Standards under 10 C.F.R. § 2.309(f)(1)

When a hearing requestor, such as Petitioners here, seeks admission of a contention

submitted as part of a timely intervention petition, that contention must satisfy the six

admissibility factors set forth in section 2.309( f)(1). Those factors require the proponent of a

contention to

63 See North Anna, LBP-21-4, 93 NRC at 196-97; Peach Bottom, LBP 5, 89 NRC at 490-91; Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP 3, 89 NRC 245, 258-59 (2019), appeal dismissed and referred ruling affd, CLI 3, 91 NRC 133 (2020).

64 See Hearing Petition, attachs. 2 A & 2B (affidavits of Beyond Nuclear, Inc., and Sierra Club, Inc. members residing approximately two miles from the ONS facility); id., attach. 2C (affidavit of Sierra Club, Inc. member residing approximately 20 miles from the ONS facility).

The distance measurements provided above are Google Maps-based calculations.

(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 in the contention is within the scope of the proceeding; (iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) Provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue and on which the petitioner intends to rely at hearing... ;

[and]

(vi)... [P]rovide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact.

10 C.F.R. § 2.309(f)(1)(i)-(vi).

These six criteria aim to focus litigation on concrete issues and result in a clearer and

more focused record for decision. 65 The petitioner bears the burden to satisfy each of the

criteria,66 and a failure to comply with any of the requirements constitutes grounds for rejecting a

proposed contention.67

B. Petitioners Contention 1

As set forth in their hearing request, Petitioners Contention 1, Failure to Comply with

10 C.F.R. [§] 51.53(c)(2), states:

Dukes [ER] fails to satisfy 10 C.F.R. § 51.53(c)(2) because it fails to fulfill that provis ions requirement to discuss the environmental impacts of alternatives and any other matters described in [10 C.F.R.] § 51.45. In particular, Duke incorrectly relies on 10 C.F.R. § 51.53(c)(3) to excuse it from discussing significant environmental impacts classified as Category 1 in 10 C.F.R. Part 51, [Subpart] A, Appendix B. By its own terms,

65 Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004)

[hereinafter 2004 Part 2 Changes].

66 See Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI 23, 82 NRC 321, 329 (2015) ([I]t is Petitioners responsibility, not the Boards, to formulate contentions and to provide the necessary inform ation to satisfy the basis requirement for admission. (quoting Statement of Policy on Conduct of Adjudicatory Proceedings, CLI 12, 48 NRC 18, 22 (1998))).

67 See 2004 Part 2 Changes, 69 Fed. Reg. at 2221; see also Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI 10, 49 NRC 318, 325 (1999).

however, [section] 51.53(c)(3) applies only to applicants seeking an initial renewed license, and therefore does not apply to SLR applicants. Pursuant to 10 C.F.R. §§ 51.53(c)(2) and 51.45(a),

Duke must discuss all significant environmental impacts of the proposed approval of Dukes SLR application, including the environmental impacts of reactor accidents and alternatives for avoiding or mitigating those impacts. The impacts that must be considered include the environmental impacts of a core melt accident caused by failure of the Jocassee Dam. Relevant information that must be considered is set forth in Contentions 2 and 3, below, which are hereby adopted and incorporated by reference.

Hearing Petition at 11 (footnote omitted). As Petitioners recognize, however, the legal issue

they frame with this contention, i.e., whether section 51.53(c)(3)s exclusion of Category 1

issues from NEPA consideration applies in an SLR proceeding such as this one, has been ruled

upon by the Commission in holdings that found this provision applicable to SLR proceedings.

See id. at 12 (citing Turkey Point, CLI 3, 91 NRC at 141-45; Peach Bottom, CLI 11,

92 NRC at 342-43); Petitioners Reply at 2 (recognizing Turkey Point and Peach Bottom

decisions are binding but indicating Contention 1 raised to preserve right to seek judicial

review). As was recently illustrated by the North Anna licensing board in responding to a similar

assertion in that SLR proceeding, the Commissions prior rulings resolving this point are binding

precedent that the Board must follow in this SLR proceeding. See North Anna, LBP-21-4,

93 NRC at 189 n.11.

Accordingly, we find this legal contention inadmissible as failing to raise a genuine

dispute over a material issue of law. See 10 C.F.R. § 2.309(f)(1)(vi).

IV. PETITIONERS 10 C.F.R. § 2.335(b) WAIVER PETITION REGARDING CONTENTIONS 2 AND 3

As is detailed in section I.B. above, a c ontention challenging established NRC regulatory

findings, including the Part 51, subpart A, appendi x B exclusion of Category 1 environmental

determinations and SAMA analyses disputed by Petitioners, see Hearing Petition at 10-11,

requires submission of a petition for a waiver pursuant to 10 C.F.R. § 2.335(b). 68 And as

Petitioners hearing request makes clear, their Contentions 2 and 3 both raise challenges to

matters included in appendix B, Table B-1, Category 1, or the equivalent, under the 2013

Revised GEIS as it applies to Dukes ER for this SLR proceeding, see id. at 2-3, thereby posing

the issue whether these contentions can meet the standards set forth in section 2.335 so as to

be litigable in this adjudication. For the reasons set forth below, we find that for both these

contentions, Petitioners have failed to fulfill the section 2.335 waiver requirements. Further,

because this determination precludes litigation of these two contentions in this proceeding, 69 we

need not address the question whether either co ntention meets the admissibility standards of

section 2.309(f)(1).

68 See Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2),

CLI-12-19, 76 NRC 377, 386 (2012) (identifying SAMAs as the functional equivalent of a Category 1 issue, removing [them] from litigation in... case-by-case license renewal adjudications).

69 One licensing board has indicated, that when a section 2.335 rule waiver is required to permit further consideration of a contention, [a]bsent a rule waiver, [the contention] is outside the scope of this proceeding, see 10 C.F.R. § 2.309(f)(1)(iii), because it constitutes an impermissible challenge to a Commission regulation. See id. § 2.335(a). Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP 8, 90 NRC 139, 170 (2019). This acknowledgment of the established principle that, absent a rule waiver, a challenge to a Commission rule would be outside the scope of an adjudication, Limerick, CLI 7, 78 NRC at 206, does not, in our estimation, support the notion that the standards that govern the analysis of the admissibility of a contention under section 2.309(f)(1) are somehow co-extensive with those that apply in determining whether a contention is litigable in the context of a section 2.335 rule waiver determination. Indeed, as section 2.335 makes clear, its provisions apply in any adjudicatory proceeding subject to [10 C.F.R. Part 2], 10 C.F.R. § 2.335(a),

including in a Part 2, subpart B enforcement proceeding in which a section 2.309(f)(1) admissible contention is not required for litigation to proceed relative to the hearing request of the subject of the agency enforcement order or civil penalty at issue, see Exelon Generation Co., LLC (Dresden Nuclear Power Station, Units 2 and 3), LPB-14 -4, 79 NRC 319, 325-26 (2014) (citing Andrew Siemaszko, CLI 16, 63 NRC 708, 714 n.3 (2006)), appeal dismissed as moot, CLI-16-6, 83 NRC 147 (2016).

A. Standards for Obtaining a Waiver Under 10 C.F.R. § 2.335(b)

In accordance with the Commissions policy goals, an NRC regulatory determination

published as a rule is generally not subject to adjudicatory challenge. 70 But as 10 C.F.R.

§ 2.335(b) indicates, it is possible for a hearing requestor in an adjudication to obtain a waiver of

the applicability of a Commission regulation if special circumstances with respect to the subject

matter exist in the immediate proceeding, i.e., if the application of the pertinent rule would not

serve the purposes for which [it] was adopted. Over time, Commission caselaw has defined

the nature of such special circumstances within the meaning of section 2.335(b), culminating

in the Commissions Millstone decision that identified the following four factors as pertinent to

evaluating whether a waiver is appropriate:

(i) the rules strict application would not serve the purposes for which it was adopted; (ii) special circumstances exist that were not considered, either explicitly or by necessary implication, in the rulemaking proceeding leading to the rule sought to be waived; (iii) those circumstances are unique to the facility rather than common to a large class of facilities; and (iv) waiver of the regulation is necessary to reach a significant safety [or environmental] problem. 71

The ultimate authority for granting a waiver lies with the Commission, but the decision

whether to advance a section 2.335 waiver request proffered in an adjudicatory proceeding to

the Commission is made in the first instance by the licensing board assigned to the adjudication.

See 10 C.F.R. § 2.335(d). Further, for each of these Millstone factors, a petitioner must make a

prima facie showing to allow a licensing board to certify the matter directly to the

70 See Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 2),

CLI-03-14, 58 NRC 207, 218 (2003) (Petitioners may not seek an adjudicatory hearing to attack generic NRC requirements or regulations, or to express generalized grievances about NRC policies. (quoting Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3),

CLI-99-11, 49 NRC 328, 334 (1999))).

71 Limerick, CLI-13-7, 78 NRC at 207-08 (citing Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI 24, 62 NRC 551, 559-60 (2005)).

Commission, in the absence of which the board may not further consider the matter. Id.

§ 2.335(c). Although not defined in the agencys regulations, to constitute a prima facie

showing, caselaw suggests that to meet the substantial showing required in connection with a

section 2.335 waiver petition, 72 the information concerning each factor must be legally sufficient

to establish a fact or case unless disproved, 73 and must be presented by affidavit in a

persuasive manner with adequate supporting facts. 74

B. Petitioners Have Failed to Make a Prima Facie Showing of Special Circumstances Warranting a Section 2.335(b) Waiver for Contentions 2 and 3

In their Contention 2, 75 Petitioners first assert new and significant information has been

overlooked by Duke in its ER, which fails to consider the environmental implications of a core

72 Tenn. Valley Auth. (Watts Bar Nuclear Plant, Unit 2) LBP 12, 71 NRC 656, 662 n.9 (citing Seabrook, ALAB-895, 28 NRC at 22; Pac. Gas and Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-653, 16 NRC 55, 72 (1981)), petition for interlocutory review denied, CLI-10-29, 72 NRC 556 (2010).

73 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 and 2), ALAB -895, 28 NRC 7, 22 (1988) (quoting Diablo Canyon, ALAB -653, 16 NRC at 72).

74 Watts Bar, LBP-10-12, 71 NRC 662 n.9. The question whether a prima facie showing has been made is one generally associated with meeting the burden of production or the burden of going forward during an evidentiary hearing. See NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), LBP-20-9, 92 NRC 58, 94-95 & n.191 (2020) (An Intervenor has the initial burden of going forward, which requires an intervenor to establish a prima facie case for claims asserted in the reformulated contention. The admission of a contention, by itself, does not satisfy the burden of going forward. An intervenor must provid[e] probative evidence or expert testimony. (footnotes omitted)), review declined, Memorandum from Annette Vietti-Cook, Secretary of the Commission, to Board and Parties (May 11, 2021) (unpublished). But in the context of determining whether a section 2.335 waiver petition makes a prima facie showing, whether provided by an expert or otherwise, that support must deal adequately with potentially relevant information. See Watts Bar, LBP 12, 71 NRC at 670-71 (indicating petitioners expert declaration is insufficient to provide prima facie support for section 2.335 waiver request in that experts claim of unanalyzed environmental impacts because more work needs to be done to bring unit online fails to indicate what the work or the impacts might entail).

75 Petitioners Contention 2, Failure to Consider New and Significant Information Regarding Significant Impacts of Reactor Accidents Caused by Failure of Jocassee Dam, alleges:

Duke has violated NEPA and 10 C.F.R. § 51.53(c)(3)(iv) by failing to address new and significant information regarding the environmental impacts of license renewal of which [Duke] is (footnote continued)

melt accident caused by failure of the Jocassee Dam. 76 Hearing Petition at 14-15, 18.

Additionally, Petitioners maintain that Dukes failure to implement measures to address the

aware. The Commission should waive 10 C.F.R. § 51.53(c)(3) and the categorical exclusions of 10 C.F.R. Part 51, [Subpart] A, Appendix B, and require Duke to address those impacts in a complete environmental impact analysis, as set forth in 10 C.F.R.

§ 51.45.

The new and significant information of which Duke is aware, and that is not addressed in the [ER], consists of the following:

Dukes own risk analyses show that the likelihood of a core melt accident and containment failure caused by a random failure of the Jocassee Dam is significantly higher than presented in Dukes [ER]. And even this higher estimate of Jocassee Dam failure frequency is too low, given Dukes failure to consider the additional credible contributors to Jocassee [D]am failure frequency of seismic events and dam overtopping.

Duke fails to address the environmental significance of a 2011 Safety Evaluation, in which the NRC Staff determined that the potential for a random (i.e., sunny day) Jocassee Dam failure constitutes an adequate protection issue requiring Duke to implement additional measures to protect against flooding of essential safety equipment and thereby prevent a reactor meltdown. By establishing the risk of a core melt accident with an associated containment failure due to failure of the Jocassee Dam as an adequate protection issue, the NRC effectively established it as a significant environmental issue as well.

Hearing Petition at 13-14.

76 In this regard, based on the supporting statement of an expert who appears to have substantial experience in the field of risk analysis, Petitioners Contention 2 maintains among other things, that the dam-failure rate figure calculated by Petitioners expert is higher than the dam-failure rate figure provided in Dukes ER, establishing that Dukes failure rate is both wrong, as well as indicating it fails to account for additional significant contributors to dam failure risk such as seismically-induced dam failure and dam overtopping or the risk contribution from shutdown operations. Hearing Petition at 14-15 (citing Hearing Petition, attach. 1, ex. 1, § 3 (Jeffrey T. Mitman, NRC Relicensing Crisis at [ONS]: Stop Duke from Sending Safety Over the Jocassee Dam (Sept. 2021) [hereinafter Mitman Report])). In contesting these claims, Duke and the NRC Staff re spectively assert, among other things, that the technical basis for Petitioners Contention 2 has multiple and significant factual errors, omissions, and mischaracterizations that deprive Petitioners hearing request of the needed support to demonstrate a genuine dispute, Duke Answer at 13-19, and is outside the scope of the proceeding by seeking improperly to confla te a NEPA environmental impact issue with a (footnote continued)

import of the January 2011 Staff Safety Evaluation constitutes an unresolved safety issue that

they now pose in the form of an environmental contention involving new and significant

information that requires attention under NEPA in this SLR proceeding. Id. at 3. In

Contention 3,77 Petitioners similarly maintain Duke failed to consider new and significant

information as it affects the outcome of Dukes ER SAMA analysis. 78 See id.

For the purpose of determining whether a section 2.335 waiver is appropriate, these two

contentions are complementary in that both can be addressed through a discussion about

safety concern associated with a current licensing basis operating issue that is otherwise unrelated to the plant systems, structures, and components aging management issues that are the recognized focus for a litigable safety contention in a license renewal proceeding, see Staff Answer at 47-49.

77 After incorporating Petitioners arguments from Contention 2 regarding dam-failure risk analysis associated with core-melt accident and containment-failure probabilities and the purported failure to consider seismic events and dam overtopping, see supra note 75, Contention 3 adds:

The NRCs 2011 Safety Evaluation, discussed above in Contention 2, required Duke to implement certain measures for protection against a random (i.e., sunny day) Jocassee Dam failure as a matter of providing adequate protection to public health and safety. By deeming these measures necessary, the NRC established them as SAMAs worthy of consideration. Indeed, in order to exclude a necessary safety measure, Duke would have a very high burden of justification. Yet, these measures are not discussed or implemented in the [ER].

The [ER] fails to consider additional mitigative measures that may well be cost-effective at Oconee, given the increased likelihood of a core melt accident. These measures include preemptively shutting down the reactors when reservoir water levels get too high, lowering the water levels in the lake behind the Jocassee and Keowee Dams, or lowering the crest elevation of some of the surround[ing] earthworks such that they overtop before the Jocassee Dam, thus lowering the flood impacts at ONS.

Hearing Petition at 16-17.

78 As the support for Contention 3, Petitioners referenced Mr. Mitmans expert report in which he suggests Dukes SAMA analysis does not reflect any consideration of the extensive work done to incorporate the Jocassee Dam failure and flood routing analysis, including the significant flood control measures in the [J anuary] 2011 [Staff] Safety Evaluation required by (footnote continued)

whether the contentions support a prima facie showing of special circumstances warranting a

waiver of the pertinent regulations that otherwise would apply generic Category 1 environmental

impact findings to Dukes SLR application. In this regard, Petitioners seek to waive the

application of 10 C.F.R. §§ 51.53(c)(3)(i) and 51.53(c)(3)(ii)(L) insofar as these provisions

excuse an applicant from having to evaluate Category 1 items (and their functional equivalents,

such as a SAMA analysis) in an ER prepared as part of an SLR application. See id. at 18.

Moreover, in what we agree is reasonable anticipation, Petitioners also request a waiver of

10 C.F.R. §§ 51.71(d) and 51.95(c)(1) that excuse the NRC Staff from addressing these same

items in both their draft and final GEIS supplement to be issued in subsequent phases of the

SLR application review process. See id. at 18-19. Finally, Petitioners seek a waiver of

10 C.F.R. Part 51, subpart A, appendix B, Table B-1, for their Contention 2 and 3 challenges to

those Category 1 findings associated with considering the environmental implications of a

core-melt accident caused by failure of the Jocassee Dam. See id. at 18.

With this appendix B framework thus applying to both contentions, our determination

whether the Petitioners have supplied the information required for a section 2.335(b) waiver

request must be guided by the Millstone standards. For the reasons set forth below, we

conclude that Petitioners failure to satisfy Millstone factor four whether waiver of the

regulation is necessary to reach a significant safety [or environmental] problem, Limerick,

the NRC, and fails to analyze the mitigation meas ures listed in the contention (i.e., preemptive ONS shut down when reservoir water levels get too high, lowering the lake water levels behind the Jocassee and Keowee Dams, lowering crest elevation of Jocassee Dam earthworks so they overtop before the dam), which are some other obvious ways to reduce the flood hazard from Oconee. Mitman Report at 24. In response, both Duke and the Staff challenge the contention as failing to acknowledge or analyze the mitigation measures already implemented by Duke and providing suggestions for additional SAMAs that are casual recommendations that, as compared to the existing Duke SAMA analysis, fail to provide the requisite seriously different picture of the environmental impact necessary to frame an admissible issue. Staff Answer at 52 (quoting Union Elec. Co. d/b/a Ameren Missouri (Callaway Plant, Unit 2), CLI 5, 74 NRC 141, 167-68 (2005)); see Duke Answer at 39-40.

CLI-13-7, 78 NRC at 208 (citing Millstone, CLI-05-24, 62 NRC at 559-60) precludes

Petitioners from obtaining a waiver of section 2.335 for these two contentions. 79

To reiterate, to make a successful showing regarding the Millstone factors, a petitioner

must meet extremely high standards showing the existence of compelling circumstances, 80

stating with particularity the special circumstances that justify the need for waiver, a standard

that is stringent by design and imposes a substantial burden on the participant seeking the

waiver, Limerick, CLI 7, 78 NRC at 207, 208. In considering whether Petitioners have met

this overarching benchmark in connection with Millstone factor four, i.e., by demonstrating there

is a significant safety or environmental issue that needs to be reached to warrant a waiver,

because of the technical nature of their contentions we will evaluate separately the issues

posed within Contentions 2 and 3.

79 With our finding below that Petitioners have failed to meet the fourth Millstone factor, we need not reach the issue whether their waiver request passes muster under Millstone factors one through three. Nonetheless, at least for Contention 2, more than a modicum of support under Millstone factor two (i.e., lack of consideration in the rulemaking leading to the rule to be waived) and Millstone factor three (i.e., circumstances unique to the facility) may exist in these circumstances in that (1) under the 2013 Revised GEIS, for license renewal purposes any plant-specific environmental consideration of seismic and flooding issues associated with post-Fukushima evaluations (and seemingly other contemporaneous post-1996 GEIS analyses) is deferred to the next license renewal GEIS supplement process for the individual plant, see supra section I.B.; and (2) although ONS has geographic proximity to a dam, relative to the basis for the 1996 GEIS generic environmental impac t findings regarding severe accidents, as incorporated into the 2013 Revised GEIS, none of the 28 nuclear power plants taken as a representative sample were specifically downstream of a dam, Tr. at 60-61 (Woods). But even assuming that these two Millstone factors could be met, and that the remaining Millstone factor one (i.e., rules strict application will not serve its adopted purposes) would be accommodated by an admissible Contention 2, see Limerick, CLI-13-7, 78 NRC at 210-11; Turkey Point, CLI 17, 54 NRC at 12, this would not alleviate the need to make a prima facie showing regarding the fourth Millstone factor, see Turkey Point, LBP 8, 90 NRC 169-70 (indicating intervenors asserted need to review and challenge draft SEIS analysis of new information does not relieve their obligation to satisfy the four Millstone factors in their section 2.335 waiver petition), which we conclude Petitioners have failed to accomplish.

80 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 and 2), CLI 20, 30 NRC 231, 245 (1989).

1. For Contention 2, Petitioners Have Failed to Make a Prima Facie Showing Under Millstone Factor Four that Waiver of the Regulation is Necessary to Reach a Significant Safety or Environmental Problem

In support of Millstone factor four, Petitioners waiver request makes only the general

observation that a waiver is necessary to address significant adverse environmental impacts

that have not previously been considered. 81 Hearing Petition at 22. And as we have observed

previously, see supra note 75, the problems Petitioners reference in Contention 2 as having

significant but unconsidered environmental impacts include (1) the difference between the

probability figure used in the Duke ER, which also is alleged not to include the risks associated

with seismically-induced dam failure and dam overtopping, and the probability figure provided in

a March 2010 NRC generic dam-failure estimate, which purportedly shows that the likelihood of

a core melt accident caused by a random failure of the Jocassee Dam... is significantly higher

than postulated in the ER; and (2) the asserted failure to address the January 2011 Staff Safety

Evaluation, as it constitutes an adequate protection issue that requires new flooding mitigation

measures to prevent a reactor meltdown. Hearing Petition at 2-3. Duke disputes this, arguing

that neither its risk analysis nor any of their other Jocassee Dam failure-related concerns can

justify a waiver of the appendix B framework given Petitioners failure to challenge in any

specific way the post-Fukushima Duke flooding analyses and implemented mitigation measures,

along with the associated Staff evaluations that ultimately resulted in the closing of the June

2010 Staff CAL. See Duke Answer at 25-26. In the circumstances here, we agree that

Petitioners failure to engage this regulatory history is at the root of their failure to identify a

significant issue under Millstone factor four. 82

As recounted in section I.C above, in a letter issued within six months of its March 2012

Fukushima RFI, the Staff indicated that the agencys post-Fukushima regulatory process for

81 Notwithstanding the potential pleading issue with this summary discussion regarding Contention 2, we continue our analysis of whether Petitioners have fulfilled Millstone factor four (footnote continued)

assessing and addressing seismic and flooding hazards using present-day methodologies and

guidance would, in the case of Oconee, supplant the still-outstanding June 2010 Staff CAL.

See September 2012 Evans Letter at 2. Thereafter, as additional seismic dam failure,

overtopping dam failure, and flooding analyses were provided in the 2015 Duke FHRR, this

to ensure the matter is fully explored.

82 As was noted previously, see supra note 76, the Petitioners did present the Board with a dam-failure rate figure higher than the dam-failure rate figure provided in Dukes ER with the claim that Dukes failure rate was wrong. Hearing Petition at 14-15. But Petitioners dam-failure rate has as a primary underpinning a March 2010 NRC Staff-generated generic failure rate for large rockfill dams similar to the Jocassee Dam. See Mitman Report at 22 (describing NRCs best estimate [initiating event frequency (IEF)] of 2.8E-4 per year) (citing James Vail, Fernando Ferrante, and Jeff Mitman, Reliability and Risk Analysts, NRC NRR, Generic Failure Rate Evaluation for Jocassee Dam (Mar. 15, 2010) (ADAMS Accession No. ML13039A084)); see also June 2016 NRC Flooding Investigative Report at 86 (indicating that in March 2010 NRC Staff reevaluated the failure rate of rock-filled dams as about once in 3600 years). This, in turn, underscores a principal basis for Petitioners contention, i.e., its reliance on June 2010 Staff CAL-associated Staff appraisals, including the January 2011 Staff Safety Evaluation. This reliance is further highlighted by Petitioners second bulleted argument in support of Contention 2, see supra note 75, regarding the environmental significance of Dukes alleged failure to address the January 2011 Staff Safety Evaluation and the adequate protection issue of the need for additional protective measures. Indeed, according to Petitioners counsel, as long as a safety evaluation that is relied on in the GEIS remains unresolved, according to the NRCs own regulat ory practices it becomes an environmental issue. Tr. at 16 (Curran).

Also indicative of this focus on the Staffs pre-Fukushima assessment of a potential Jocassee Dam failure is Petitioners December 7, 2021 pleading filed in response to a November 22, 2021 Board request for information in which they discuss two NRC Staff member non-concurrence submissions, one from Mr. Mitman in January 2011 regarding the January 2011 Staff Safety Evaluation and another in April 2009 from a different NRC employee concerning the August 2008 Staff Jocassee Dam Failure Section 50.54(f) Letter. See Petitioners Response to Licensing Board Post-Argument Information Request at 3-9 (discussing NRC Form 757, Non-Concurrence Pr ocess (Jan. 10, 2011) (ADAMS Accession No. ML110260443) and NRC Form 757, Non-Concurrence Process (Apr. 6, 2009) (ADAMS Accession No. ML091170104)).

As a procedural matter, we observe that without seeking a page-limit extension, Petitioners December 7, 2021 filing in response to the Boards November 22, 2021 issuance failed to conform to the Board-established page restriction for participant responsive submissions to its information request. Compare id. at 10 (signature page), with Licensing Board Post-Argument Information Request Order at 2 (indicating participant responsive submissions should be no more than five pages). Nonetheless, given the lack of objection from the other two participants, we take no adverse action regarding the second half of Petitioners submission.

successive review process culminated in the Staffs June 2016 letter indicating that, on the

basis of the Staffs review of post-Fukushima information provided by Duke, which included

Dukes compensatory modification measures to address possible dam-break related flooding,

the Staff was closing the June 2010 Staff CAL. See June 2016 Haney Letter at 1; see also April

2016 Davis FHRR Final Assessment Letter at 2; August 2014 Batson Letter at 2. Moreover, in

an addendum to the April 2016 Staff Final FHRR Assessment there is a detailed discussion

comparing the circumstances surrounding the August 2010 Duke Flooding Evaluation and the

Staffs post-Fukushima activities regarding seismic and flooding that explains the basis for the

Staffs adjusted approach. See Staff 2010/2015 Evaluation Comparison at 1-2. That

addendum noted that the August 2010 Duke Flooding Evaluation, which the January 2011 Staff

Safety Evaluation concluded provided documentat ion appropriate to the computation of a

conservative, bounding, estimation of a postulated sunny-day Jocassee Dam failure and

subsequent downstream flooding at the ONS, is based on several conservative assumptions

including[] (1) breach size selection given the dams construction and bedrock type at the dam

site; [and] (2) a hypothetical time to reach a peak outflow... based on the quality of

construction, basal rock type, and degree of monitoring of the Jocassee [D]am. Id. at 3, 4. The

April 2016 Staff Final FHRR Assessment addendum further contrasted the August 2010 Duke

Flooding Evaluation methodology with the approach taken in response to the March 2012 NRC

Fukushima Section 50.54(f) Letter, which was based on the requirements of (1) Near-Term

Task Force Recommendation 2.1;83 and (2) the July 2013 JLD-ISG-2013 -01 Interim Staff

Guidance. According to the addendum, the former directed that a licensee must use

present-day methodologies and regulatory guidance applicable to Part 52 licenses to assess all

83 SECY-11-0093, Near-Term Report and Recommendations for Agency Actions Following the Events in Japan, encl. (July 12, 2011) (The Near-Term Task Force, NRC, Recommendations for Enhancing Reactor Safety in the 21st Century at 30 (July 12, 2011))

(ADAMS Accession No. ML111861807).

flood-causing mechanisms, which for ONS included the potential for hydrologic/overtopping,

seismic, and sunny-day failures of the Jocassee Dam, while the latter clarified acceptable dam

breach formulation methodologies that were not available for Staff use during its 2010 review of

the Jocassee Dam-associated flooding issue. See Staff 2010/2015 Evaluation Comparison

at 3; see also April 2016 Staff FHRR Final Assessment at 3-6.

Further, in evaluating Dukes information regarding these three failure modes using

present-day methodologies and regulatory guidance, which included independent confirmatory

analyses of the Jocassee Dam breach uncertainties range, the Staff determined that both

seismically and overtopping-induced failures of the Jocassee Dam were not reasonable

mode[s] of failure while the sunny-day Jocassee Dam failure mode was deemed an unlikely,

although reasonable, failure mode. Staff 2010/2015 Evaluation Comparison at 3; see also April

2016 Staff FHRR Final Assessment at 6-41. The Staff concluded as well that (1) the Duke

2015 FHRR reflected a reasonable analysis that re moves some conservatism in the August

2010 Duke Flooding Evaluation consistent with recent Commission direction regarding

licensees section 50.54(f) letter flood hazard reevaluations; (2) Dukes estimated ONS flood

levels were reasonable, satisfying the Staffs information requests; and (3) the revised March

2015 Duke FHRR provided an acceptable evaluation of a postulated sunny-day failure of the

Jocassee Dam, and is appropriate to consider in assessing the need for specific actions

included in the June 2010 Staff CAL. Staff 2010/2015 Evaluation Comparison at 4. The Staff

assessment did indicate that Duke still needed to provide a focused evaluation confirming the

capability of flood protection and available physical margin or a revised integrated

assessment... for all reevaluated mechanisms not bounded by the current design basis. Id.

And thereafter, in assessing Dukes focused evaluation the Staff concluded that Duke had

implemented the necessary compensatory meas ures to mitigate a possible Jocassee Dam

failure such that the focused evaluation requirement was fulfilled and the March 2012 NRC

Fukushima Section 50.54(f) Letter could be closed. See June 2018 Uribe Letter at 2; November

2020 Bernardo Letter at 1.

Petitioners do not reference the more recent information set forth above in their hearing

petition or the supporting Mitman Report. Nonetheless, they still claim that they did not ignore

those interactions and reviews. According to Pe titioners, this material is simply irrelevant

because the language of the January 2011 Staff Safety Evaluation establishes an adequate

protection issue, while the post-Fukushima material does not employ the necessary

reasonable assurance of adequate protection to public health and safety language. See

Petitioners Reply at 11-14; Tr. at 50-51 (Curran). According to Petitioners, even if the

documents state that the June 2010 Staff CAL is superseded or closed out, they have been

unable to locate any documents addressing the close-out of the January 2011 Staff Safety

Evaluation with its adequate protection issue. See Tr. at 94-95 (Curran). This, they assert,

establishes that the January 2011 Staff Safety Evaluation continues to be outstanding and, in

the context of NRC regulatory practice, by its very nature must be considered a significant

issue. See Petitioners Reply at 6, 20.

As we consider Petitioners arguments in the context of this waiver determination, we

conclude we cannot agree. Initially we note that, in determining whether the stringent standards

applicable to the grant of a section 2.335 waiver have been met, we consider it entirely

appropriate to take into account both what the required affidavit and additional material provided

in support of a waiver request says and does not say. 84 And clearly of significance in this

84 In this regard, section 2.335(b) requires that in support of a waiver request a petitioner must provide an affidavit that identifies the specific aspect or aspects of the subject matter of the proceeding as to which the application of the rule or regulation (or provision of it) would not serve the purposes for which the rule or regulation was adopted... [and] must state with particularity the special circumstances alleged to justify the waiver or exception requested.

Recognizing this requirement, see Hearing Petition at 19, Petitioners have proffered two sworn declarations, one by its legal counsel and one by Mr. Mitman. In the former, Mr. Mitmans declaration and report are identified as the source of any factual assertions in support of the waiver petition and counsel is identified as the source of any legal conclusions supporting the (footnote continued)

circumstance is the sequence of events that were part of a major, agency order-instituted

post-Fukushima effort intended to ensure t hat the NRC can continue to have reasonable

assurance of adequate protection of public health and safety in mitigating the consequences of

a beyond-design-basis external event. 85 This included the related Commission-endorsed effort

initiated by the March 2012 NRC Fukushima Section 50.45(f) Letter, of which the April 2016

Staff Final FHRR Assessment was a part, to us e current scientific methodologies and agency

regulatory guidance to identify and mitigate seismic and flooding hazards. 86

But despite the relevance of these post-Fukushima regulatory events to the assessment

of seismic and flooding events at ONS and elsewhere, as is evident from the Mitman Report

that provides the sole technical support for their hearing petition, Petitioners fail to engage with

the numerous post-Fukushima documents and reports that were exchanged between Duke and

petition. See id. attach. 3, at 1-2 (Declaration of Diane Curran in Support of Petition for Waiver of 10 C.F.R. §§ 51.53(c)(3)(i), 51.53(c)(ii)(L), 51.71(d), 51.95(c)(1), and 10 C.F.R. Su[bp]art A, Appendix B, Table B-1 to Allow Consideration of Category 1 NEPA Issues and SAMA Issues (Sept. 27, 2021)). In contrast, the latter attests to the validity of the factual statements in the Mitman Report. See id. attach. 1, at 2 (Declaration of Jeffrey T. Mitman in Support of Beyond Nuclear and Sierra Club Hearing Request (Sept. 27, 2021)). Neither contains any identified discussion of the specific aspect or aspects of the subject matter of the proceeding as to which the application of the rule or regulation (or pr ovision of it) would not serve the purposes for which the rule or regulation was adopted or the special circumstances alleged to justify the waiver or exception requested, the subjects a supporting affidavit is supposed to address under section 2.335(b). Instead, any recitation concerning these matters is confined to Petitioners hearing request, see Hearing Petition at 20-22, making it unclear to what extent the section 2.335(b) affidavit requirement has been fulfilled as a supporting basis for their waiver request.

85 Order Modifying Licenses [w]ith Regard to Requirements for Mitigation Strategies for Beyond-Design-Basis External Events (Effective Immediately), 77 Fed. Reg. 16,091, 16,092 (Mar. 19, 2012) (EA-12-049).

86 See, e.g., Memorandum from Annette L. Vietti-Cook, NRC Secretary, to Mark A.

Satorius, Executive Director for Operations (EDO) at 1 (July 28, 2015) (Staff Requirements COMSECY-15-0019 Closure Plan for the Reevaluation of Flooding Hazards for Operating Nuclear Power Plants) (ADAMS Accession No. ML15209A682); Memorandum from Mark A.

Satorius, EDO, to the Commission at 1-3 (June 30, 2015) (COMSECY-15 -0019, Closure Plan for the Reevaluation of Flooding Hazards for Operating Nuclear Power Plants) (ADAMS Accession No. ML15153A105).

the NRC from 2012 through 2020.87 Their expert report makes no mention of the significance of

the differences identified between the underlying bases for assessments conducted relative to

the June 2010 Staff CAL, of which the January 2011 Staff Safety Evaluation was a component,

and the post-Fukushima Duke analyses and associated Staff evaluations, particularly as

outlined in the Staff 2010/2015 Evaluation Comparison. 88 Nor does that expert report identify

and explain the significance of what was addressed in the post-Fukushima Duke and Staff

evaluations relative to the January 2011 Staff Safety Evaluation. 89

87 At the same time, based on Mr. Mitmans otherwise unsupported statement in his report that [i]t is widely understood in the nuclear industry and by the NRC that the risks from shutdown are comparable to those during power operations, Mitman Report at 23, Petitioners seek to raise concerns about the credibility of Dukes risk analysis based on Duke purportedly ignoring the issue of risk contribution from r eactor shutdown operations, see Hearing Petition at 15; Petitioners Reply at 6 n.2; see also supra note 76. Even putting aside whether, as the Staff maintains, this has been identified by the Commission as an operational issue that is outside the scope of a license renewal proceeding, see Staff Answer at 49 (citing Pac. Gas and Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI 21, 82 NRC 295, 304-05 (2015)), in the circumstance of assessing whether section 2.335s strict standards have been met, this passing reference, made without any quantification or other technical support or explanation, will not abide, even from an expert, see Entergy Nuclear Operations, Inc.

(Palisades Nuclear Plant), CLI 23, 82 NRC 321, 328 (2015) ([A]n expert opinion that merely states a conclusion... without providing a reasoned basis or explanation for that conclusion is inadequate because it deprives the Board of the ability to make the necessary, reflective assessment of the opinion.) (citation omitted )); USEC, Inc. (American Centrifuge Plant),

CLI-06-10, 63 NRC 451, 472 (2006) (same). It also is not clear how Mr. Mitmans general concern about reactor shutdown risk, see Mitman Report at 23, relates to his view that reservoir level-related preemptive reactor shutdown s hould be considered an obvious SAMA strategy, see id. at 24.

88 See Watts Bar, LBP-10-12, 71 NRC at 670-71 (indicating claim in supporting expert declaration that the utilitys past operational history without a nuclear facility means denying an operating license would be environmentally preferable is insufficient to provide prima facie support for petitioners section 2.335 waiver request because, without showing comparative financial and environmental costs, experts assertion [t]hat it was not necessary to operate a facility in the past simply does not establish that it will be unreasonable to operate it in the future).

89 Petitioners attempt to explain, at least in part, the lack of engagement with post-Fukushima documentation as being the result of having access to post-Fukushima Duke and Staff evaluation documents with a significa nt portion of the quantitative information excised as not publicly available. See Petitioners Reply at 14 n.8; see also Mitman Report at 1-2. It is true that prior to having an admitted contention, there is no adjudicatory discovery available by which they could obtain this redacted information. See Wisc. Elec. Power Co.

(Point Beach Nuclear Plant, Unit 1), ALAB -696, 16 NRC 1245, 1263 (1982). Nonetheless, in (footnote continued)

Instead, the report relies on what Petitioners technical expert characterizes as the

regulatory significance of the wording employed by the Staff in the April 2009 Giitter Letter and

in its January 2011 Staff Safety Evaluation, as compared to the April 2016 Staff FHRR Final

Assessment, as well as the difference in titles used in the January 2011 and April 2016 Staff

documents, the former a Safety Evaluation and the latter a Staff Assessment. See Mitman

Report at 12, 13, 15. However, as a basis for their waiver request, these wording or title

distinctions do not carry the regulatory significance Petitioners assign them.

According to Petitioners expert report, the April 2009 Giitter Letter is significant because

it indicates that the Staff planned to evaluate the results of Dukes inundation model

benchmarking to determine whether further regulatory actions are necessary to ensure there is

adequate protection against external flooding at Oconee and states the Staffs expectation that

it would receive sensitivity analyses which would establish an adequate licensing basis for

external flooding. Mitman Report at 12 (quoting April 2009 Giitter Letter at 3). But this

assertion is speculative and removes the letter from its context in the regulatory landscape.

Equally plausible from the face of the letter is that it reflects the Staffs then-acknowledgment

that if it ultimately wanted to issue an enforcement-type order to Duke regarding its ongoing

Oconee inundation assessment, it would need to make such an adequate protection finding. 90

But again, parsing the language of the letter without acknowledging what has happened

subsequently does not imbue that document with the significance Petitioners would assign it.

Indeed, another 2010 document cited in Mr. Mitmans report, but not discussed in this context,

the context of their section 2.335 petition seeking to show a significant environmental matter that requires a regulatory waiver, in our view this does not relieve Petitioners of the responsibility to address, to the extent they can, the adequacy of the post-Fukushima evaluations in the context of whatever relevant public information is available.

90 See NRC, Management of Backfitting, Forward Fitting, Issue Finality, and Information Request, Directive Handbook 8.4, at 4-5 (Sept. 20, 2019) (indicating a backfitting evaluation is applicable to facility-specific inspection and licensing actions and requires an initial determination whether action is necessary to provide adequate protection of public health and safety) (ADAMS Accession No. ML18093B087).

bears this out.91 This adequate protection backfitting exception analysis regarding Oconee

inundation issues apparently was prepared by the Staff as support for a possible

license-modification enforcement order. 92 But an order based on such a finding was never

issued.93

Instead, based on its interactions with the Staff, Duke committed to inundation-related

mitigation modifications during the process associated with the June 2010 Staff CAL, 94

measures that the Staff determined in conjunction with its post-Fukushima evaluation process

were acceptable, see June 2016 Haney Letter at 1. Given the Staffs willingness to proceed

under the June 2010 Staff CAL without any ONS-specific license modification order, the Mitman

Report-referenced language in the January 2011 Staff Safety Evaluation, which states that the

Duke ONS site inundation bounding analysis information provided reasonable assurance for

the overall flooding scenario at the site, Mitman Report at 13 (quoting January 2011 Staff

Safety Evaluation at 13), provides an insufficient basis for the significance attributed to it by

Petitioners, at least with no supporting analysis contesting the adequacy of the Staffs

post-Fukushima safety determinations regarding ONS Jocassee Dam-related inundation. And

the same is the case with the Mitman Reports declaration that [b]y titling [its April 2016]

91 See Mitman Report at 18 n.81 (citing NRC, [ONS] Adequate Protection Backfit Documented Evaluation (document identified as circa 2010) (ADAMS Accession No. ML14058A015) [hereinafter Backfit Documented Evaluation]).

92 See Backfit Documented Evaluation at 8 (The objective of this documented evaluation... is to justify a backfit exception (under 10 CFR 50.109(a)(4)(ii)) to modify the ONS license to ensure that there is adequate protection against all types of external floods and to maintain defense-in-depth.).

93 See Petitioners Reply at 10 (the [January] 2011 [Staff] Safety Evaluation did not explicitly require Duke to take certain measures to ensure adequate protection of public health and safety).

94 See June 2010 Staff CAL at 1, 2 (noting listed compensatory measures must remain in place until final resolution of the matter of ONS site inundation from Jocassee Dam failure has been determined by Duke and agreed upon by NRC, including implementation of all mitigation modifications, and indicating CAL does not preclude issuance of order formalizing commitments or requiring other actions, including enforcement actions).

document a Staff Assessment rather than a Safety Evaluation, the NRC Staff indicated that

the document did not have the regulatory equivalence of safety findings. Mitman Report at 15.

As Duke points out, whether a safety evaluation has the regulatory significance attributed to it

by Petitioners is not apparent either. 95

While Duke has accounted for the mitigative measures it implemented under this

post-Fukushima evaluative process in assessing whether any new and significant information

required further consideration in its ER, see supra section I.B, Petitioners have failed to engage

with the underlying Duke and Staff post-Fukushima analyses that support those determinations.

Instead, they have chosen to rely on purported distinctions in language associated with

pre-Fukushima Staff evaluations that, in this context, are of highly questionable regulatory

significance. Under these circumstances, lacking the requisite showing that the information they

provide meets the benchmark of presenting a seriously different picture of the environmental

impact of the proposed project from what was previously envisioned, 96 we are unable to

conclude that Petitioners have adequately established a prima facie showing that there is a

significant environmental issue that merits a waiver under section 2.335 so as to permit

consideration of Petitioners Contention 2 in this adjudicatory proceeding.

95 See Duke Answer at 14-15 & n.71 (quoting SECY-21-0037, NUREG-1409, Backfitting Guidelines, Rev. 1 (Mar. 31, 2021), encl. 1, at 1-5 (NRR, NRC, Backfitting Guidelines, Final Report (rev. 1 undated) (draft) (indicating Staff positions in safety evaluations are not requirements and are not part of the li censing basis for a facility) (ADAMS Accession No. ML21006A433)).

96 Callaway, CLI-11-5, 74 NRC at 167-68 (quoting Hydro Resources, Inc. (2929 Coors Road, Suite 101, Albuquerque, NM 871200), CLI 22, 50 NRC 3, 14 (1999)). To be sure, this seriously different picture yardstick was identified in the context of determining whether new and significant information existed sufficient to trigger a Staff supplemental environmental analysis under NEPA. See id. While we do not necessarily equate the new and significant information standard governing NEPA supplementat ion with the significant environmental problem criterion under Millstone factor four, in assessing a waiver request the former would at least need to be met in determining what is significant under the latter.

2. For Contention 3, Petitioners Have Failed to Make a Prima Facie Showing Under Millstone Factor Four that Waiver of the Regulation is Necessary to Reach a Significant Safety or Environmental Problem

Also in connection with Millstone factor four, Petitioners contend that waiver of the

regulations is necessary to address the significa nt environmental problem of SAMAs that may

be cost-effective in preventing or mitigating those impacts but that have not previously been

considered. Hearing Petition at 22. This parallels their Contention 2 concern that, given the

alternative risk estimate they have provided, Dukes SAMA analysis is incorrect and should be

done again using reasonable and up-to-date assumptions. Id. at 3. We determined regarding

Contention 2, see supra section IV.B.1, that by treating as irrelevant the post-Fukushima Duke

and Staff activities in addressing seismic and flooding issues, including Dukes facility

modifications that were implemented in accordance with the Staffs post-Fukushima regulatory

guidance and assessed by Duke, for SAMA purposes, as part of its SLR ER, Petitioners failed

to provide sufficient support to demonstrate the existence of a significant environmental issue

under Millstone factor four. And in the context of Petitioners waiver request, we conclude these

same deficiencies deprive their Contention 3 concerns of any claim to being a significant

environmental issue such that a waiver of the appendix B framework is warranted.

In sum, with respect to Millstone factor four, Petitioners have failed to put forth a

supporting analysis that demonstrates with specific ity a prima facie showing of a significant

problem that must be addressed as part of this SLR proceeding so as to necessitate a waiver of

the appendix B framework to allow adjudicatory cons ideration of the issues they have proffered

in Contentions 2 and 3.97 And without a demonstration by Petitioners of the special

97 Of course, the Boards determination regarding Petitioners waiver request does not negate the Staffs responsibility (1) in conducting its hard look licensing review of the Duke ER, to assess whether new and significant information exists that requires additional consideration; or (2) per 10 C.F.R. § 51.73, to consider whether any information provided by public comments as part of the environment review process for Dukes SLR application merits further analysis as new and significant information. See Limerick, CLI-17-3, 78 NRC at 216-17.

circumstances required to justify granting a section 2.335(b) waiver, the Board cannot certify to

the Commission for a merits determination the matter whether such a waiver is called for so as

to make their Contentions 2 and 3 eligible for adjudicatory consideration in this SLR proceeding.

V. CONCLUSION

For the reasons set forth above in section II.B., Petitioners have provided an adequate

showing to establish their representational standing in this SLR proceeding for Dukes ONS

facility. Nevertheless, for the reasons described in section III.B above, we find under the

applicable standards in 10 C.F.R. § 2.309(f)(1) that Petitioners have failed to establish the

grounds for admitting their Contention 1 challenging whether the exclusion of 10 C.F.R. Part 51,

subpart A, appendix B, Table B-1 Category 1 issues from NEPA consideration applies in an

SLR proceeding such as this one. Further, for the reasons set forth in section IV.B above, we

conclude Petitioners have failed under the requirements set forth in 10 C.F.R. § 2.335 to justify

certifying to the Commission whether to grant a waiver of the 10 C.F.R. Part 51 provisions that

otherwise preclude the Board from considering in this adjudicatory proceeding the Duke ER

adequacy issues posed by Petitioners Contentions 2 and 3.

For the foregoing reasons, it is this eleventh day of February 2022, ORDERED, that:

1. The September 27, 2021 hearing request of petitioners Beyond Nuclear, Inc., and the

Sierra Club, Inc., and the accompanying 10 C.F.R. § 2.335 waiver request are denied and this

proceeding is terminated.98

98 Regarding the outstanding November 15, 2021 Duke motion to strike a portion of Petitioners November 5, 2021 reply pleading, see supra note 7, our denial of Petitioners hearing and waiver requests moots that Duke request.

- 49 -

2. In accordance with the provisions of 10 C.F.R. § 2.311, as this memorandum and

order rules upon an intervention petition, any appeal to the Commission from this memorandum

and order must be taken within 25 days after this issuance is served.

THE ATOMIC SAFETY ANDLICENSINGBOARD

_________________________ /RA/

G. Paul Bollwerk, III, Chairman ADMINISTRATIVEJUDGE

_________________________ /RA/

Nicholas G. Trikouros ADMINISTRATIVE JUDGE

_________________________/RA/

Dr. Gary S. Arnold ADMINISTRATIVE JUDGE

Rockville, Maryland

February 11, 2022 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

In the Matter of )

)

DUKE ENERGY CAROLINAS, LLC, ) Docket Nos. 50-269, 50-270 & 50-287-SLR DUKE ENERY )

)

(Oconee Nuclear Station )

Units 1, 2 and 3) )

CERTIFICATE OF SERVICE

I hereby certify that copies of the Memorandum and Order (Denying Intervention and Terminating Proceeding) (LBP-22-01) have been served upon the following persons by Electronic Information Exchange.

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of the Secretary of the Commission Mail Stop: O-16B33 Mail Stop: O-16B33 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov E-mail: hearingdocket@nrc.gov

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop: T-3F23 Mail Stop - O-14A44 Washington, DC 20555-0001 Washington, DC 20555-0001 Susan Vrahoretis, Esq.

G. Paul Bollwerk, III, Chairman David E. Roth, Esq.

Administrative Judge Megan A. Wright, Esq.

Mary F. Woods, Esq.

Nicholas G. Trikouros Joseph M. Azeizat, Esq.

Administrative Judge Brian Newell, Senior Paralegal Georgiann E. Hampton, Paralegal Dr. Gary S. Arnold Amanda Black, Paralegal Administrative Judge E-mail: susan.vrahoretis@nrc.gov david.roth@nrc.gov Brooke Taylor, Law Clerk megan.wright@nrc.gov mary.woods@nrc.gov Allison Wood, Law Clerk joseph.azeizat@nrc.gov brian.newell@nrc.gov E-mail: paul.bollwerk@nrc.gov georgiann.hampton@nrc.gov nicholas.trikouros@nrc.gov amanda.black@nrc.gov gary.arnold@nrc.gov ian.curry@nrc.gov brooke.taylor@nrc.gov allison.wood@nrc.gov

Oconee Power Station (Units 1, 2 and 3)

Docket Nos. 50-269, 50-270 and 50-287-SLR Memorandum and Order (Denying Intervention and Terminating Proceeding) (LBP-22-01)

Duke Energy

Tracey LeRoy, Esq.

550 South Tryon Street, 45A Charlotte, NC 28202 tracey.leroy@duke-energy.com

Counsel for Duke Energy

Morgan, Lewis & Bockius LLP Paul Bessette, Esq.

Ryan Lighty, Esq.

1111 Pennsylvania Avenue, NW Washington, DC 20004 E-mail: paul.bessette@morganlewis.com ryan.lighty@morganlewis.com

Beyond Nuclear

Paul Vernon Gunter, Esq.

7304 Carroll Avenue #182 Takoma Park, MD 20912 paul@beyondnuclear.org

Counsel for Beyond Nuclear

Diane Curran, Esq.

Harmon, Curran, Spielberg and Eisenberg 1725 DeSales Street NW, Suite 500 Washington, DC 20036 dcurran@harmoncurran.com

Office of the Secretary of the Commission Dated at Rockville, Maryland, This 11th day of February 2022.

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