ML21015A605

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Reply by Beyond Nuclear, Sierra Club, and Alliance for Progressive Virginia to Oppositions to Hearing Request and Waiver Petition
ML21015A605
Person / Time
Site: North Anna  Dominion icon.png
Issue date: 01/15/2021
From: Curran D
Alliance for Progressive Virginia (APV), Beyond Nuclear, Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP, Sierra Club
To:
Atomic Safety and Licensing Board Panel
SECY RAS
References
50-338-SLR, 50-339-SLR, ASLBP 21-970-01-SLR-01, RAS 55950
Download: ML21015A605 (23)
v • d • e


Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

Virginia Electric Power Co. ) Docket Nos. 50-338/339 SLR North Anna Power Station Units 1 & 2 )

___________________________________ )

REPLY BY BEYOND NUCLEAR, SIERRA CLUB, AND ALLIANCE FOR PROGRESSIVE VIRGINIA TO OPPOSITIONS TO HEARING REQUEST AND WAIVER PETITION Submitted by:

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

1725 DeSales Street N.W., Suite 500 Washington, D.C. 20036 240-393-9285 dcurran@harmoncurran.com Counsel for Petitioners January 15, 2021

TABLE OF CONTENTS Table of Authorities.iii I. INTRODUCTION..1 II. PETITIONERS WAIVER PETITION SATISFIES NRC REQUIREMENTS2 A. Petitioners Have Adequately Sought a Waiver of Applicable Regulations2 B. Petitioners Have Demonstrated that Strict Application of the Category 1 Exclusions Would Not Serve the Purposes for Which They Were Adopted.5 C. Petitioners Have Demonstrated the Existence of Unique and Special Circumstances and a Significant Safety Issue that Justify Their Waiver Petition.10 III. PETITIONERS CONTENTION IS ADMISSIBLE ..............14 IV. CONCLUSION..18

TABLE OF AUTHORITIES Judicial Decisions Limerick Ecology Action v. NRC, 869 F.2d 719 (3rd Cir. 1989)17 NRC Decisions Dominion Nuclear Connecticut, Inc., (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 N.R.C. 551 (2005)...14 Dominion Virginia Power (North Anna Power Station, Unit 3) CLI-17-08, 85 N.R.C. 157 (2017).11, 12 Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc.

(Vermont Yankee Nuclear Power Station); Entergy Nuclear Generation Co.

(Pilgrim Nuclear Power Station), CLI-07-03, 65 N.R.C. 13 (2007)...5-6 Exelon Generation Co., L.L.C. (Peach Bottom Atomic Power Station, Units 2 and 3), LBP-19-05, 89 N.R.C. 483 (2019), affd, CLI-20-11 (2020).17-18 Exelon Generation Co. (Limerick Generating Station, Units 1 and 2),

CLI-13-07, 78 N.R.C. 199 (2013)..2, 3 Exelon Generation Co. (Limerick Generating Station, Units 1 and 2),

CLI-12-19, 76 N.R.C. 377 (2012) .2, 3, 4, 5 Statutes Atomic Energy Act, 42 U.S.C. § 2011, et seq6, 8 NEPA, 42 U.S.C. §§ 4321-4370h..1-2, 3, 5, 14, 16, 18 Regulations 10 C.F.R. § 2.309(i)(2)1 10 C.F.R. § 2.335(b)....3 10 C.F.R. § 2.335(d)....2 10 C.F.R. Part 50, Appendix A8 10 C.F.R. Part 50, Appendix A, General Design Criterion 1..8 ii

10 C.F.R. Part 50, Appendix A, General Design Criterion 2...8, 12 10 C.F.R. Part 50, Appendix A, General Design Criterion 4..8 10 C.F.R. Part 50, Appendix A, General Design Criterion 5..8, 9 10 C.F.R. Part 50, Appendix B8 10 C.F.R. Part 51...28 10 C.F.R. § 51.45(a)..14 10 C.F.R. § 51.53(c)(2)..14 10 C.F.R. § 51.53(c)(3)(i)...1, 2, 3, 5 10 C.F.R. § 51.53(c)(3)(ii)(L)..4, 5 10 C.F.R. § 51.71(d)...1, 2, 3, 5 10 C.F.R. § 51.95(c)....4 C.F.R. § 51.95(c)(1)....1, 2, 3, 5 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1.....2, 3, 4, 5, 6, 16 Federal Register Notices Denial of Petition for Rulemaking by Nuclear Energy Institute, 66 Fed. Reg. 10,834 (Feb. 20, 2001)...11, 18 Final Rule for Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467 (June 5, 1996).....6-7 NRC and Industry Guidance and Miscellaneous Expanded Materials Degradation Assessment (EMDA),

NUREG/CR-7153 (Oct. 2014).....15, 17 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, NUREG-1437 (May 1996).6, 7, 9, 10, 11 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, NUREG-1437, Rev. 1 (June 2013).6, 7, 9, 10, 14, 15, 16 iii

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

Virginia Electric Power Co. ) Docket Nos. 50-338/339 SLR North Anna Power Station Units 1 & 2 )

___________________________________ )

REPLY BY BEYOND NUCLEAR, SIERRA CLUB, AND ALLIANCE FOR PROGRESSIVE VIRGINIA TO OPPOSITIONS TO HEARING REQUEST AND WAIVER PETITION I. INTRODUCTION Pursuant to 10 C.F.R. § 2.309(i)(2), Petitioners Beyond Nuclear, Inc. (Beyond Nuclear), the Sierra Club, Inc. (Sierra Club), and Alliance for Progressive Virginia, Inc.

(APV) hereby reply to the oppositions submitted by Virginia Electric Power Co. and Dominion Energy Services, Inc. (hereinafter together referred to as Dominion) and the U.S.

Nuclear Regulatory Commission (NRC or Commission) Staff to Petitioners Hearing Request and Waiver Petition in this proceeding for consideration of Dominions application for subsequent license renewal (SLR) of the operating license for the North Anna Units 1 and 2 nuclear power plant.1 In this proceeding, Petitioners seek consideration of (a) their contention that Dominions Environmental Report fails to satisfy the requirements of the National Environmental Policy Act 1

The relevant pleadings are: Hearing Request and Petition to Intervene by Beyond Nuclear, Sierra Club, and Alliance For Progressive Virginia and Petition for Waiver of 10 C.F.R. §§ 51.53(c)(3)(i), 51.71(d), And 51.95(c)(1) to Allow Consideration of Category 1 NEPA Issues (Dec. 14, 2020) (Hearing Request); Applicants Answer Opposing Request for Hearing, Petition to Intervene, and Petition for Waiver Submitted by Beyond Nuclear, Sierra Club, and Alliance for Progressive Virginia (Jan. 8, 2021) (Dominion Opp.); and NRC Staff Answer to Hearing Request, Petition to Intervene, and Petition for Waiver Filed by Beyond Nuclear, Sierra Club, and Alliance for Progressive Virginia (Jan. 8, 2021) (NRC Staff Opp.).

(NEPA) and NRC implementing regulations by failing to address environmental impacts of reactor accidents caused or contributed to by earthquakes at the aging North Anna reactors, and (b) their request for a waiver of NRC regulations that would otherwise preclude consideration of their contention. Neither Dominion nor the NRC Staff contests the Petitioners representative standing to raise these claims. However, they argue that Petitioners Waiver Petition does not meet the NRCs regulatory standards, and that the contention is inadmissible. As discussed below in Sections II and III, their arguments lack merit.

Accordingly, the Atomic Safety and Licensing Board (ASLB) should determine that Petitioners have made a prima facie showing that the Waiver Petition satisfies the NRCs criteria and certify it to the Commission, as provided by 10 C.F.R. § 2.335(d). The ASLB should also determine that Petitioners have standing and that they have submitted an admissible contention.

II. PETITIONERS WAIVER PETITION SATISFIES NRC REQUIREMENTS.

A. Petitioners Have Adequately Sought a Waiver of Applicable Regulations.

Dominion and the NRC Staff contend that Petitioners have not sought a waiver of all the regulations that must be waived in order to consider their contention. Dominion Opp. at 32; NRC Staff Opp. at 2, 28. First, they incorrectly assert that Petitioners have failed to seek a waiver of 10 C.F.R. Part 51, Appendix B, Table B-1. Dominion Opp. at 32 (citing Exelon Generation Company, LLC (Limerick Generating Station, Units 1 and 2), CLI-13-07, 76 N.R.C. 199, 203 (2013) (Limerick, CLI-13-07)); NRC Staff Opp. at 28. This assertion is frivolous. Petitioners Waiver Petition explicitly invokes 10 C.F.R. Part 51, Appendix B, Table B-1. The Waiver Petition is entitled Petition for Waiver of 10 C.F.R. §§ 51.53(c)(3)(i), 51.71(d), and 51.95(c)(1) to Allow Consideration of Category 1 NEPA Issues. Hearing Request at 30 (emphasis added).

The first paragraph of the Waiver Petition also explicitly invokes 10 C.F.R. Part 51, Subpart A, 2

Appendix B, Table B-1, and identifies the specific Category 1 findings in Table B-1 for which Petitioners seek a waiver:

Pursuant to 10 C.F.R. § 2.335(b), Petitioners request a waiver of 10 C.F.R. §§ 51.53(c)(3)(i), 51.71(d), and 51.95(c)(1), to the extent they bar consideration of NEPA Category 1 issues in this subsequent license renewal proceeding. [citations omitted].

Category 1 issues, which are listed in 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1, include the environmental impacts of design basis accidents and severe accidents, including accidents caused by or contributed to by earthquakes Id. (emphasis added). Thus, Petitioners have, in fact, sought a waiver of Appendix B and Table B-1.2 It is also important to note, in this context, that Appendix B and Table B-1 are not self-executing; they are only applicable to license renewal proceedings by operation of other regulations. See Final Rule, Reactor Site Criteria Including Seismic and Earthquake Engineering Criteria for Nuclear Power Plants, 61 Fed. Reg. 65,157, 65,158 (Dec. 11, 1996) (explaining that 10 C.F.R. Part 50, Appendix S has no self-executing language and must be rendered applicable by other regulations). By its title, Table B-1 constitutes a Summary of Findings on NEPA Issues for License Renewal of Nuclear Power Plants. It is a summary, not a prescription for applying Table 1 findings. And neither Appendix B nor Table B-1 contains any language adopting the Category 1 findings into licensing renewal decisions; instead, the introduction to Appendix B 2

Neither decision cited by Dominion and the Staff holds that a waiver petition seeking to avoid application of Category 1 findings to a license renewal proceeding must use the terms Appendix B or Table B-1 in the title. See CLI-13-07, 76 N.R.C. at 203 (cited in Dominion Opp. at 34);

Exelon Generation Co. (Limerick Generating Station, Units 1 and 2), CLI-12-19, 76 N.R.C. 377, 386 (2012) (Limerick, CLI-12-19)) (cited in NRC Staff Opp. at 19). Both cases involved the question of whether the petitioner, Natural Resources Defense Council, needed to submit a waiver petition in order to obtain consideration of new and significant information affecting a previous SAMA analysis. Ultimately, the Commission accepted the sufficiency of a petition that was entitled Natural Resources Defense Councils Petition, by Way of Motion, for Waiver of 10 C.F.R. § 51.53(c)(3)(ii)(L) as Applied to Application for Renewal of Licenses for Limerick Units 1 and 2. CLI-13-07, 76 N.R.C. at 204 n.14.

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explicitly states that the findings are to be used in accordance with § 51.95(c) (which adopts Category 1 findings into license renewal environmental impact statements). Consistent with this directive, Petitioners have sought a waiver of § 51.95(c) and other regulations that adopt the Category 1 findings for license renewal decisions. 3 The Staff also claims, again incorrectly, that Petitioners must seek a waiver of 10 C.F.R.

§ 51.53(c)(3)(ii)(L), which excuses Dominion from updating severe accident mitigation analyses (SAMAs) analyses prepared in previous licensing and license renewal proceedings. 4 NRC Staff Opp. at 2, 31. Petitioners respectfully submit that a waiver of § 51.53(c)(3)(ii)(L) is not necessary in order for the Commission to require Dominion to prepare an analysis addressed specifically to the environmental impacts of operating North Anna Units 1 and 2 for an 3

Petitioners Waiver Petition is thus consistent with the Staffs position that the Commission requires petitioners to seek a waiver of rules adopting the Table B-1 findings. NRC Staff Opp.

at 19 (citing Limerick, CLI-12-19, 76 N.R.C. at 386 (emphasis added).

4 Section 51.53(c)(3)(ii)(L) provides that:

(ii) The environmental report must contain analyses of the environmental impacts of the proposed action, including the impacts of refurbishment activities, if any, associated with license renewal and the impacts of operation during the renewal term, for those issues identified as Category 2 issues in Appendix B to subpart A of this part. The required analyses are as follows:

. . . (L) If the staff has not previously considered severe accident mitigation alternatives for the applicants plant in an environmental impact statement or related supplement or in an environmental assessment, a consideration of alternatives to mitigate severe accidents must be provided.

Table B-1 of Appendix B to subpart A, as referenced in § 51.53(c)(3)(ii)(L), further provides that:

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.

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additional twenty years, which is the primary objective of Petitioners contention and Waiver Petition. Moreover, it would be premature, in advance of the completion of the requested environmental impact analysis, to determine whether a waiver of § 51.53(c)(3)(ii)(L) should be sought. The outcome of that analysis is necessary in order to adequately assess the sufficiency of any previous SAMA analyses for North Anna Units 1 and 2 or the need for a waiver petition.

B. Petitioners Have Demonstrated that Strict Application of the Category 1 Exclusions Would Not Serve the Purposes for Which They Were Adopted.

Petitioners have asserted that application of the Category 1 exclusions in this proceeding would defeat the Commissions purpose of ensuring NEPA compliance and improving the quality of site-specific license renewal reviews by barring consideration of new and significant information regarding the environmental impacts of operating North Anna Units 1 and 2 in a subsequent license renewal term. Hearing Request at 33. Dominion and the Staff take issue with this assertion, contending that the regulations require consideration of new and significant information rather than barring it. Dominion Opp. at 20, NRC Staff Opp. at 29.

What Dominion and the Staff fail to consider is that while the regulations may require Dominion and the Staff to consider the environmental significance of new information, NRC regulations in Table B-1 (as adopted by 10 C.F.R. §§ 51.53(c)(3)(i), 51.71(d), and 51.95(c)(1))

deprive Petitioners of any means to enforce that requirement, absent a waiver. Thus, the regulations would bar Petitioners and other members of the public from challenging Dominions or the Staffs failure to evaluate new and significant information. Further, in its decisions, the Commission has required a waiver to be obtained in order to directly challenge determinations regarding new and significant information. Limerick, CLI-12-19, 76 N.R.C. at 384-86 (holding that the proper procedural avenue for [petitioner] to raise its concerns is to seek a waiver of the relevant provision in section 51.53(c)(3)(ii)(L)); Entergy Nuclear Vermont Yankee, LLC, and 5

Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station); Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-07-03, 65 N.R.C. 13, 18 n. 15, 20 (2007)).

The Staff also incorrectly asserts that Petitioners do not demonstrate that strict application of the rule would not serve the underlying purpose of the Category 1 findings in Table B-1 because they do not provide any information to demonstrate that there are environmental impacts resulting from the 2011 Mineral earthquake, let alone significant environmental impacts, that would lead to a determination that (a) the environmental impacts for design-basis accidents or (b) the probability-weighted consequences of a severe accident, would be greater than SMALL for this SLR review. NRC Staff Opp. at 29-30. Contrary to this assertion, Petitioners have, indeed, provided information showing that the environmental impacts of operating North Anna Units 1 and 2 for an additional twenty-year term are significant as a matter of law, by citing the occurrence of the 2011 Mineral earthquake, which exceeded the reactors design basis. The actual occurrence of a nearby earthquake that exceeded the reactors design basis has definitively disproved the assumption underlying the 1996 License Renewal Generic Environmental Impact Statement (GEIS) and the 2013 revised License Renewal GEIS that environmental impacts of operating the reactors during a second license renewal term will be insignificant because the reactors are adequately designed to protect against likely seismic events. Hearing Request at 35. As explained in the 1996 rulemaking for the NRCs environmental regulations for license renewal:

The Atomic Energy Act requires the Nuclear Regulatory Commission to promulgate, inspect and enforce standards that provide an adequate level of protection of the public health and safety and the environment. The implementation of these regulatory programs provides a margin of safety. A review of the regulatory requirements and the performance of facilities provides the bases to project continuation of performance within regulatory standards. For the purposes of assessing radiological impacts, the Commission has concluded that impacts are of small significance if doses to individuals and releases do not exceed the permissible levels in the Commissions regulations.

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Final Rule for Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467, 28,476 (June 5, 1996). By invalidating a key assumption underlying the NRCs findings of compliance with safety-based standards for protection of reactors from earthquakes, the Mineral earthquake fatally undermined the environmental findings in the 1996 License Renewal GEIS that compliance with NRC safety standard can be relied on for a finding that environmental impacts will be insignificant.

Both Dominion and the Staff argue that the 1996 and 2013 License Renewal GEISs do, in fact, evaluate beyond-design-basis accidents, and that Petitioners have not shown the need for a new or additional analysis. Dominion Opp. at 21, NRC Staff Opp. at 34. But the environmental issues raised by the occurrence of the 2011 Mineral Earthquake on the environmental analysis in the 1996 and 2013 License Renewal GEISs are not resolvable by the type of purely probabilistic risk analysis conducted by the NRC for beyond design basis accidents because their findings of no significant impacts are based, to a significant extent, on deterministic considerations rather than probabilistic considerations. Thus, contrary to Dominions assertion, the severe accident analysis in the License Renewal GEIS is not the relevant analysis that Petitioners must contest.

Dominion Opp. at 23 To the contrary, the relevant environmental analysis is the analysis supporting the NRCs conclusion in the 1996 GEIS that the environmental impacts of design-basis accidents are low (the 1996 GEIS analysis). The 1996 GEIS analysis is the one that is challenged in Petitioners Waiver Petition and contention, on the ground that the 1996 GEIS analysis depends on an assumption - now proven unwarranted by the 2011 Mineral Earthquake -- that a reactors design is adequate to prevent or mitigate the effects of likely accidents. The 1996 GEIS analysis is quite distinct from the severe accident analysis because it is not based on probability, but rather on the 7

assumption that nuclear plants are safe -- and therefore pose no significant adverse environmental impacts -- because they are designed and built to an array of closely related and interdependent deterministic requirements, i.e., design rules, promulgated by NRC under the Atomic Energy Act. The design rules are intended to ensure the safety of nuclear reactors - and therefore their low environmental impacts - by establishing requirements for quality in design and construction, demonstrated ability to withstand likely external forces such as earthquakes, and redundancy. See, e.g., 10 C.F.R. Part 50, Appendix A, General Design Criteria 1, 2, 4, and 5.5 See also 10 C.F.R. Part 50, Appendix B, containing the NRCs quality assurance standards.

5 The text of GDC 1, 2, 4, and 5 provides as follows:

Criterion 1Quality standards and records. Structures, systems, and components important to safety shall be designed, fabricated, erected, and tested to quality standards commensurate with the importance of the safety functions to be performed. Where generally recognized codes and standards are used, they shall be identified and evaluated to determine their applicability, adequacy, and sufficiency and shall be supplemented or modified as necessary to assure a quality product in keeping with the required safety function. A quality assurance program shall be established and implemented in order to provide adequate assurance that these structures, systems, and components will satisfactorily perform their safety functions. Appropriate records of the design, fabrication, erection, and testing of structures, systems, and components important to safety shall be maintained by or under the control of the nuclear power unit licensee throughout the life of the unit.

Criterion 2, Design bases for protection against natural phenomena. Structures, systems, and components important to safety shall be designed to withstand the effects of natural phenomena such as earthquakes, tornadoes, hurricanes, floods, tsunami, and seiches without loss of capability to perform their safety functions. The design bases for these structures, systems, and components shall reflect: (1) Appropriate consideration of the most severe of the natural phenomena that have been historically reported for the site and surrounding area, with sufficient margin for the limited accuracy, quantity, and period of time in which the historical data have been accumulated, (2) appropriate combinations of the effects of normal and accident conditions with the effects of the natural phenomena and (3) the importance of the safety functions to be performed.

Criterion 4Environmental and dynamic effects design bases. Structures, systems, and components important to safety shall be designed to accommodate the effects of and to be compatible with the environmental conditions associated with normal operation, maintenance, testing, and postulated accidents, including loss-of-coolant accidents. These structures, systems, and components shall be appropriately protected against dynamic 8

Probabilistic considerations did not play a role in the development of the design rules, other than in the course of evaluating the probability of the most likely earthquakes that must be defended against by engineered safety features; nor do probability considerations play a role in the way the design rules are applied in licensing proceedings. Satisfaction of these rigorous and deterministic safety requirements is required, regardless of the probability that compliance or non-compliance will affect the safe operation of a particular reactor. The fact that the NRCs finding of no significant impact in the 1996 and 2013 GEISs is based on compliance with these design rules does not lead to the conclusion that the environmental impacts of operating the North Anna reactors can be declared insignificant by using the same type of purely probabilistic risk analysis that is used for SAMA evaluations. Instead, the NRC must re-examine how the occurrence of a beyond-design-basis earthquake at North Anna would affect the basis for its original findings of no significant impact for design-basis accidents, including the deterministic portion of those findings.

In fact, neither the 2013 Revised License Renewal GEIS or Dominions Environmental Report even attempts to address the impact of the occurrence of the 2011 Mineral earthquake on the conclusions of the 1996 License Renewal GEIS and the 2013 Revised License Renewal effects, including the effects of missiles, pipe whipping, and discharging fluids, that may result from equipment failures and from events and conditions outside the nuclear power unit.

Criterion 5Sharing of structures, systems, and components. Structures, systems, and components important to safety shall not be shared among nuclear power units unless it can be shown that such sharing will not significantly impair their ability to perform their safety functions, including, in the event of an accident in one unit, an orderly shutdown and cooldown of the remaining units.

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GEIS regarding the adequacy of reactors design bases to protect against significant adverse environmental impacts from earthquakes.

C. Petitioners Have Demonstrated the Existence of Unique and Special Circumstances and a Significant Safety Issue that Justify Their Waiver Petition.

Petitioners contend that their Waiver Petition raises circumstances that are both special and unique to North Anna Units 1 and 2 in two respects: first, because the reactors design is based on an assessment of an earthquake whose impacts are unique to the North Anna site; and second, because the unprecedented occurrence of the 2011 beyond-design-basis earthquake irrefutably disproves, uniquely for North Anna, the 1996 License Renewal GEIS conclusion that environmental impacts of design basis accidents are small because design and performance criteria for all operating reactors are acceptable. Hearing Request at 34 (quoting 1996 License Renewal GEIS at xliii-xliv). In light of these special and unique circumstances, Petitioners contend that Dominion and the NRC lack any rational basis to rely on the 1996 License Renewal GEIS conclusion that earthquake-related accident impacts during a subsequent license renewal term for North Anna will be small because they are encompassed by the reactors design basis. Id. at 34-35. These circumstances also demonstrate the existence of a significant environmental problem that can only be reached by issuing a waiver. Hearing Request at 35-36.

In opposing Petitioners Waiver Petition, the Staff argues that even a unique reactor design can be the subject of a generic environmental analysis. NRC Staff Opp. at 32. While that proposition may generally be correct, Petitioners are not aware of any generic environmental analysis that has evaluated the environmental significance of the occurrence of an earthquake, on or near a specific reactor site, that exceeds the unique design basis for that particular reactor.

Thus, the circumstances of Petitioners Waiver Petition are demonstrably unique.

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The Staff also argues that the generic finding for design-basis accidents does not apply here because the Mineral earthquake was a beyond-design-basis accident. NRC Staff Opp. at

34. See also Dominion Opp. at 27. But contrary to this argument, the fact that the Mineral earthquake exceeded North Annas design basis requires a re-examination of the NRCs conclusion in the 1996 License Renewal GEIS that the environmental impacts of accidents during the license renewal term are small because design performance criteria for all operating reactors - including North Anna Units 1 and 2 -- are acceptable. 1996 License Renewal GEIS at xliii-xliv. The actual occurrence of the Mineral earthquake has demonstrated unequivocally that such compliance can no longer be assumed; and therefore, it may not lawfully be relied on in Dominions Environmental Report.

The Staff also attempts to downplay the significance of the fact that a post-earthquake risk analysis conducted for the combined operating license (COL) review for North Anna Unit 3 resulted in an upgrade to the design of seismic safety components 6, by distinguishing Unit 3 from Units 1 and 2. Neither of the two distinctions offered by the Staff holds water. First, according to the Staff, the seismic analysis for the Unit 3 COL was performed for a proposed, not yet constructed reactor. NRC Staff Opp. at 37. But the Commission has soundly rejected the notion that an environmental impact analysis is not needed for a license renewal term because the renewal is simply an addition to a previous license term and does not change the status quo. Denial of Petition for Rulemaking by Nuclear Energy Institute, 66 Fed. Reg. 10,834, 10,836 (Feb. 20, 2001). As the Commission explained:

By approving a license renewal application under Part 54, the Commission authorizes operation of the entire plant for an additional 20 years beyond the initial licensing term.

Thus, the review of the environmental impacts of this Federal action under the provisions 6

See Hearing Request at 36 (citing Dominion Virginia Power (North Anna Power Station, Unit

3) CLI-17-08, 85 N.R.C. 157, 178 (2017) (North Anna, CLI-17-08)).

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of Part 51 appropriately involves the consideration of environmental impacts caused by 20 additional years of operation.

Id. (emphasis added).

Second, the Staff argues that Unit 3 is distinguishable from Units 1 and 2 because it was based on a different design. NRC Staff Opp. at 38 (citing North Anna, CLI-17-08, 85 N.R.C. at 160) (noting that Dominions COL application for Unit 3 referenced the Economic Simplified Boiling Water Reactor (ESBWR) certified design). But Dominion had to obtain an exemption from the ESBWR certified design in order to make the seismic upgrades. See SECY-17-0009, Memorandum to the Commissioners from Victor M. McCree re: Staffs Statement in Support of the Uncontested Hearing for Issuance of a Combined License for North Anna Power Station Unit 3 (Jan. 18, 2017).7 Thus, Dominion made the design changes to Unit 3 in spite of the ESBWR design, not because of it. The seismic upgrades were considered necessary to ensure Unit 3s compliance with General Design Criterion 2, which requires that reactors must be adequately designed against likely earthquake hazards. SECY-17-0009 at 24.

Dominion, for its part, is conspicuously silent on the relevance of Unit 3. Instead, it attempts to show that the seismic probabilistic risk assessment (SPRA) it performed for North Anna Units 1 and 2 was of such high quality and thoroughness as to definitively establish that no further response or regulatory actions (e.g., modifications to the plants seismic design basis) were needed for adequate protection or compliance with existing requirements. Dominion Opp.

at 16 (citing letter from L. Lund, NRC, to D. Stoddard, Dominion, re North Anna Power Station, Units 1 and 2 - Staff Review of Seismic Probabilistic Risk Assessment Associated with 7

SECY-17-009 was submitted as Exhibit NRC-001 in the mandatory hearing on Dominions COL application. In addition, the Staff submitted Exhibit NRC-007, the Final Safety Evaluation Report for Dominions COL application (SER) (March 16, 2017) (ML17075A474). See North Anna, CLI-17-08, 85 N.R.C. at 176-177, notes 113 and 116.

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Reevaluated Seismic Hazard Implementation of the Near-Term Task Force Recommendation 2.1: Seismic (EPID No. L-2018-JLD-0003), Enc. 1 at 34 (Apr. 25, 2019) (ML19052A522 (NRC SPRA Review Letter)).

But Dominion fails to address, let alone reconcile, the significant disparity between the results of the seismic risk analyses for Unit 3 and Units 1 and 2. In both cases, Dominion purportedly considered the most recent available information regarding earthquake frequencies in the Central and Eastern United States (CEUS), the lessons of the Fukushima accident, and the 2011 Mineral Earthquake. Compare NUREG-17-0009 at 30, 33 (Unit 3); Environmental Report at 4 4-87 and Letter from R. Bernardo, NRC, to D. Stoddard, Dominion, re: North Anna Power Station, Units 1 and 2 - Documentation of the Completion of Required Actions Taken in Response to the Lessons Learned from the Fukushima Dai-ichi Accident at 5-8 (June 9, 2020 (ML20139A077) (Units 1 and 2). For Unit 3, Dominion and the NRC concluded that upgrades to safety-related components would be needed to provide an adequate seismic design; yet, for Units 1 and 2, they concluded that no safety upgrades were needed, and that a set of non-safety-grade FLEX components would be adequate. Letter from Daniel G. Stoddard to NRC re: Virginia Electric and Power Company North Anna Power Station Units 1 and 2, Response to March 12, 2012 Information Request: Seismic Probabilistic Risk Assessment for Recommendation 2.1 at 69 (Mar. 28, 2018) (ML13063A182) (Dominion Letter re SSHAC Review).

This anomaly has concrete environmental significance for the operation of Units 1 and 2 during a subsequent license renewal term, particularly one that extends beyond the term that was in place when the Dominion Letter re SSHAC Review was prepared. Had Unit 3 been finished and put into operation, its safety systems would have been less likely to be overwhelmed by an 13

earthquake than Units 1 and 2, and the need to rely on non-safety-grade FLEX equipment would also be less likely. If Units 1 and 2 are re-licensed for another 20 years of operation, its safety systems are more likely to be overwhelmed by an earthquake than the safety systems of Units 3 had it gone into operation. And by the same token, Units 1 and 2 are more likely to have to rely on FLEX equipment in the event its safety equipment is overwhelmed. Neither Dominion nor the NRC Staff offers any explanation for the difference in the acceptability of environmental risks at two different nuclear plants on the same site. The unexplained chasm between the two sets of findings, by itself, establishes a significant environmental problem warranting the issuance of a waiver in this proceeding. Dominion Nuclear Connecticut, Inc., (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 N.R.C. 551, 559-560 (2005).

III. PETITIONERS CONTENTION IS ADMISSIBLE.

Petitioners single contention asserts:

Dominions Environmental Report fails to satisfy NEPA or NRC implementing regulations 10 C.F.R. §§ 51.53(c)(2) and 51.45(a), because it does not address the environmental impacts of operating North Anna Units 1 and 2 during the extended SLR term under the significant risk of an earthquake that exceeds the design basis for the reactors. The significance of the environmental risk posed by earthquakes to North Anna was conclusively demonstrated by a 2011 earthquake whose epicenter was a short distance from the two reactors and whose ground motion exceeded the design basis levels for both reactors. By exceeding the reactors design basis, the earthquake disproved the assumption underlying the NRCs issuance of operating licenses in 1978 (for Unit 1) and 1980 (for Unit 2) and renewal of those licenses 2003, that the reactors could be operated safely and without significant adverse environmental impacts because their SSCs were built to a design basis of sufficient rigor to protect against likely earthquakes. Because that assumption has been proven wrong, a new Environmental Impact Statement must be created that analyzes this additional, proven risk.

While the NRC approved restart of the reactors after their post-earthquake shutdown, an operability determination for purposes of enforcing NRC standards is distinct from the review of environmental impacts that must be conducted in the SLR licensing decision that is now before the NRC. Dominion must fully comply with 10 C.F.R. §§ 51.53(c)(2) and 51.45(a) by addressing the probability and consequences of accidents caused or contributed to by earthquakes during a second license renewal term.

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The analysis in the Environmental Report should include a discussion of the cumulative effects of operation during the SLR term, including the effects of earthquakes on SSCs whose ability to prevent or mitigate earthquake effects may be compromised by the long-term aging effects. Aging problems associated with SSCs, including reactor pressure vessel embrittlement, irradiation-assisted stress corrosion cracking of reactor internals, concrete structures and containment degradation, and electrical cable qualification and condition assessment, were identified in SECY-14-0016, Memorandum from Mark A.

Satorius, NRC Executive Director of Operations, to NRC Commissioners, re: Ongoing Staff Activities to Assess Regulatory Considerations for Power Reactor Subsequent License Renewal at 1 (Jan. 31, 2014) (ML14050A306) and the NRCs five-volume Expanded Materials Degradation Assessment (EMDA), NUREG/CR-7153 (Oct. 2014)

(EMDA Report).

Hearing Request at 13-14 [footnote omitted].

Dominion and the NRC Staff make a number of arguments against the admissibility of Petitioners contention, but none has merit. First, Dominion argues that Petitioners contention is unclear because it criticizes the Environmental Report for failing to discuss earthquakes or other accident impacts, and yet acknowledges that Dominion incorporates the Category 1 findings of the 2013 revised License Renewal GEIS by reference. Dominion Opp. at 33-34. This argument is without merit. Petitioners clearly and explicitly state that Dominion must evaluate the environmental significance of the 2011 Mineral earthquake in light of the NRCs exclusive reliance on a generic finding that the environmental impacts of reactor operation are small because their design bases are adequate to protect against likely events (with no consideration of the impact of the Mineral earthquake on its analysis). Dominion can point to no analysis of this issue, either in its Environmental Report or in the 2013 revised License Renewal GEIS. While both Dominion and the Staff argue that the Mineral earthquake was adequately addressed by the NRCs generic analysis of beyond-design-basis impacts (Dominion Opp. at 35, NRC Staff Opp.

at 42), characterizing the Mineral earthquake as a beyond-design-basis accident does not address the issue raised by Petitioners.

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Dominion also argues that Petitioners have failed to successfully attack Dominions incorporation by reference of the Category 1 findings in Table B-1. Dominion Opp. at 34. To the contrary, Petitioners contention demonstrates that those findings have been invalidated by the occurrence of the Mineral earthquake. Hearing Request at 13-14. As discussed above, simply characterizing the Mineral earthquake as a beyond design basis accident does not resolve this fundamental deficiency in the environmental analysis presented in Dominions Environmental Report.

Further, Dominion contends that Petitioners have failed to show any inadequacy in the state-of-the-art SPRA for North Anna Units 1 and 2, which accounts for the Mineral Earthquake and whose results remain squarely within the range of probability-weighted consequences evaluated in the GEIS. Dominion Opp. at 37. See also Staff Opp. at 44-46. In fact, Petiioners have identified an apparent inadequacy in light of the unexplained disparity between the SPRA for Units 1 and 2, which identified no need for significant improvements to the seismic design of those reactors, and the risk analysis for Unit 3, which led to significant design upgrades for that reactor. Dominion fails to explain why those differences exist, given that both risk studies were evaluating the same environmental factors.

Dominion also argues that the document relied on by Petitioners, SECY-14-0016, explicitly concludes that nothing therein casts doubt on the adequacy of the 2013 GEIS.

Dominion Opp. at 38 (citing SECY-14-0016, Memorandum from Mark A. Satorius, NRC Executive Director of Operations, to NRC Commissioners, re: Ongoing Staff Activities to Assess Regulatory Considerations for Power Reactor Subsequent License Renewal at 3 (Jan. 31, 2014)

(ML14050A306)). But this reference to a statement made in an internal agency memorandum cannot be equated with a more formal NEPA finding of no significant impact based on an 16

adequate environmental impact statement or environmental assessment. Moreover, neither SECY-14-0016 nor the subsequently-issued Staff Requirements Memorandum took into account the specific circumstances of North Anna Units 1 and 2, i.e., the occurrence of an earthquake that exposed aging equipment to stresses that exceed their design bases. See NRC Staff Opp. at 51-52 (citing SRM-SECY-14-0016 (ML14241A578).

Dominion also argues that Petitioners disregard the fact that the NRC Staff considered the aging issues raised in SECY-14-0016 and the EMDA in the GALL SLR Report, NUREG-2191, the NRCs Generic Aging Lessons Learned for Subsequent License Renewal Report at xxvii (2017) (GALLL SLR Report) (ML17187A204). Dominion Opp. at 39. See also NRC Staff Opp. at 51. But the NRC Staff has not resolved the uncertainties in the GALL SLR Report

- nor did it try; rather, it requires licensees to monitor them. Id. at xxviii. And the GALL SLR Report emphasizes that it is the industrys responsibility to resolve these and other issues to provide the technical bases to ensure safe operation beyond 60 years. Id. at xxvii. Dominion has failed to provide evidence that it has met this responsibility in light of the 2011 Mineral event.

Finally, Dominion argues that Petitioners claim that the Environmental Report must consider the uncertainties inherent in relying on certain specific aging reactor components 8 during the subsequent license renewal term is out of scope, because these are safety issues that 8

The particular aging issues referenced in the contention are reactor pressure vessel embrittlement, irradiation-assisted stress corrosion cracking of reactor internals, concrete structures and containment degradation, and electrical cable qualification and condition assessment. Hearing Request at 19. Uncertainties regarding the vulnerability of these components to aging effects is discussed in the NRCs five-volume Expanded Materials Degradation Assessment (EMDA), NUREG/CR-7153 (Oct. 2014) (EMDA Report). See Hearing Request at 14.

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relate to the adequacy of the current licensing basis (CLB). Dominion Opp. at 40. 9 See also NRC Staff Opp. at 53. It defies logic to claim that consideration of these uncertainties can be avoided simply by pointing out that they also happen to constitute safety issues. As the Commission has recognized:

[U]nder NEPA, the NRC is charged with considering all of the environmental impacts of its actions, not just the impacts of specific technical matters that may need to be reviewed to support the action. These impacts may involve matters outside of the NRCs jurisdiction or matters within its jurisdiction that, for sound reasons, are not otherwise addressed in the NRCs safety review during the licensing process. In the case of license renewal, it is the Commissions responsibility under NEPA to consider all environmental impacts stemming from its decision to allow the continued operation of the entire plant for an additional 20 years. The fact that the NRC has determined it is not necessary to consider a specific matter in conducting its safety review under Part 54 does not excuse it from considering the impact in meeting its NEPA obligations.

Denial of Petition for Rulemaking, 66 Fed. Reg. at 10,836 (emphasis added).

IV. CONCLUSION For the foregoing reasons, Petitioners Hearing Request and Waiver Request should be granted.

Respectfully submitted,

__/signed electronically by/___

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

1725 DeSales Street N.W., Suite 500 Washington, D.C. 20036 240-393-9285 dcurran@harmoncurran.com January 15, 2021 9

Petitioners respectfully submit that by specifically demanding consideration of uncertainties, and by providing legal support for the requirement to consider uncertainties (see Hearing Request at 9 (citing Limerick Ecology Action, 869 F.2d 719, 744 (3rd Cir. 1989)), Petitioners contention differs significantly from the contention rejected by the ASLB in Exelon Generation Co., L.L.C. (Peach Bottom Atomic Power Station, Units 2 and 3), LBP-19-05, 89 N.R.C. 483 (2019), affd, CLI-20-11 (slip op.) (2020).

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

Virginia Electric Power Co. ) Docket Nos. 50-338/339 SLR North Anna Power Station, Units 1 and 2 )

___________________________________ )

CERTIFICATE OF SERVICE I certify that on January 15, 2021, I posted REPLY BY BEYOND NUCLEAR, SIERRA CLUB, AND ALLIANCE FOR PROGRESSIVE VIRGINIA TO OPPOSITIONS TO HEARING REQUEST AND WAIVER PETITION on the NRCs Electronic Information Exchange.

___/signed electronically by/__

Diane Curran 19

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