Extending reactor licenses under a 385 foot dam?

On June 24, 2024, the Nuclear Regulatory Commission (NRC) Atomic Safety Licensing Board (ASLB) heard Beyond Nuclear and Sierra Club South Carolina Chapter’s (the Petitioners) oral arguments on the admissibility of three contentions that scrutinize the environmental qualification of the Subsequent License Renewal (SLR) of Duke Energy’s three unit Oconee nuclear power station for 60 to 80-years. The contentions  focus on the failure of both Duke Energy and the Nuclear Regulatory Commission’ staff to openly address the hazards and increasing risks of extending Oconee nuclear power station’s  operating licenses in accelerating climate change. This extreme operating license renewal and others like it are occurring simultaneously to Congress passing pro-nuclear bipartisan legislation awaiting President Biden’s signature that reframe the agency’s Mission Statement originally to “promote the public safety and environmental protection” to “the benefit of nuclear power to society.” This all occurs under the guise of addressing climate change.

Attorney  for the Petitioners Diane Curran started with her opening remarks that briefly outline the case to the NRC panel of three administrative law judges:

• “ The three Oconee reactors lie directly below two large earthen dams – the 385-foot high rock filled Jocassee Dam and the 170-foot Keowee Dam directly above Oconee. Together, these dams impound two million acre-feet of water. Yet, the three reactors were never designed to withstand a flood from the failure of the either dam, because it was not considered a credible accident in the 1970s when the reactors were built.
• “Critical safety equipment is located at grade level below the Keowee Dam, inside a turbine building that is not watertight. Thus, the Emergency Core Cooling System (ECCS) is vulnerable to failure in an external flood. The emergency electricity supply is also vulnerable to flooding because it is built into the Keowee Dam and could be overwhelmed in a large flood.
• “In the 1980s, Duke added additional equipment to improve safety at Oconee, but it is not safety related, single failure proof or redundant. The Standby Shutdown Facility or SSF has one diesel generator but it is located below grade and is not redundant. Currently, the SSF is protected to a level of only 7.5 feet by a surrounding wall. There is no wall around the turbine building where significant parts of the ECCS are housed.

“Petitioners believe the preparation of the EIS [Environmental Impact Statement]  for subsequent renewal of the Oconee license has brought the NRC to a crucial juncture with respect to the longstanding and serious environmental and safety risks posed by the operation of the Oconee reactors.

“And yet, the NRC has glossed over significant environmental risks posed by the Oconee reactors with a finding that the environmental impacts of accidents during the SLR term are ‘SMALL.’  Petitioners seek accountability by the NRC Staff for this inadequate environmental analysis in their three contentions. “

The three filed contentions challenge the NRC Licensing Board review to take a “hard look” under the National Environmental Policy Act (NEPA) of Duke Energy’s Oconee nuclear station’s license extension that is projected out to 2053 and 2054.

Most obviously, Duke Energy’s Oconee nuclear station is sited at grade downstream 300 feet below the water level in Lake Jocassee behind Jocassee Dam and 5 feet below the water level in the immediately adjacent Lake Keowee.  To this, the NRC staff countered that climate change impacts on Oconee operations are “out of the scope” of its environmental review for the license renewal. They assert that the risk  will be managed  under Oconee’s day to day Current Licensing Basis.  NRC Judge Arielle J. Miller queried the NRC lawyer and commented, “…when it comes to climate change, past can’t always be prologue, that what we see happen are more at times step changes in the environment in natural hazards where these one in a million or one in a hundred year storms or whatever, they’re happening more often.  We’re breaking heat records almost every day. I’m being slightly hyperbolic. So then how is this not then a lagging indicator versus trying to make it more of a leading indicator which might be a little bit of what the petitioner is talking about? ”

The NRC Judge’s remarks parallel new evidence published by the United States Government Accountability Office (GAO) and submitted by Beyond Nuclear in support of its contentions to challenge the NRC renewed environmental review proceeding for license extension. The newly published report on April 2, 2024 was released in GAO-24-106326 “Nuclear Power Plants: NRC Should Take Actions to Fully Consider the Potential Effects of Climate Change.”  In support of what Judge Miller raised in the June 24th hearing, the GAO found that “NRC does not use climate projections data to identify and assess risk as part of the safety reviews or probabilistic risk assessment reviews it conducts during the initial licensing process. Rather, NRC uses historical data to extrapolate the future risks of natural hazards that may occur during the lifetime of a nuclear power plant. Extrapolating historical data into the future assumes that existing climatological trends will continue.”

That said, here is a summation of the Petitioners  contentions filed in the Oconee Subsequent License Renewal:

Contention 1: The first contention challenges the NRC Draft Site-Specific Environmental Impact Statement (DEIS) claim that the environmental impacts of severe accidents from a dam failure will be “SMALL” during the subsequent license renewal term (2033 to 2053 for Units 1 & 2 and 2034 to 2054 for Unit 3) because operation of the Oconee reactors will provide “adequate protection” to public health and safety. Contention 1 focuses on the NRC’s attempt to achieve consistency between its claim of providing “adequate protection” in the environmental review and its post-Fukushima review, each with significantly different heights for Oconee flood protection. NRC is now hiding the comparative height for flood level protection values by removing an earlier  document from public review that had provided the analysis for “adequate protection” in a January 28, 2011 in an NRC Safety Evaluation that finally looked at what Oconee could experience with the overtopping and likely breach of both the Jocassee and Keowee dams.  The 2011 Safety Evaluation had previously been released under a FOIA request filed by Greenpeace.  The NRC 2011 analysis, still unrepudiated, has now been removed from NRC publicly available information, made  secret again and recharacterized as “sensitive”. That flood height level used to cite as the “adequate protection” level for Oconee flood protection is now being reviewed by the NRC Office of General Counsel to possibly redact references from the June 24, 2024 hearing transcript.

The term “adequate protection” is critical in validating the legal standard of the Atomic Energy Act to make a “finding of no significant hazard” to the public safety and environmental protection. The NRC post-Fukushima flood protection level ascribed to Oconee is instead approximately 5 feet of flood protection. There has been some additional work to raise a protective wall around that Safe Shutdown Facility to 7.5  feet. This is  a  significant reduction in the Oconee safety analysis established in the January 28, 2011 NRC Safety Evaluation. The latter post-Fukushima review  flood protection level remains public available identifying an approximately 5 feet value (plus 2.5 ft  subsequently added) but nowhere ascribes to meet the “adequate protection” standard.  Instead, the still available documentation ascribes the 5 feet protective level to be “reasonable” or something else, but not the Atomic Energy Act’s legal standard of “adequate protection.” At present, the Petitioners are waiting to hear if the NRC staff is going to redact from the June 24^th hearing transcript Oconee’s the flood level protection value previously submitted to the licensing board in evidence ascribed but now suppressed January 28, 2011 NRC Safety Evaluation for Oconee.

[UPDATE: June 28, 2024, the NRC licensing board issued a Memorandum and Order to Petitioners’ counsel instructing  that the transcript of the June 24, 2024 pre-hearing oral argument is now reclassified as “non-public.” The transcript  included the open discussion of information in the January 28, 2011 NRC Safety Evaluation identifying the flood level that needed to be addressed for “adequate protection” necessary to reasonably assure safe shutdown of the Oconee nuclear power station in the event of the climate change-related that overtops the Jocassee Dam and Keowee Dam resulting in failure and inundation of the reactor site. The Order instructs counsel and Petitioners that the June 24th NRC hearing transcript is not to be publicly released pending further review by the NRC Office of General Counsel for possible redactions in the transcript made by NRC staff.]

Contention 2: The Petitioners are challenging the technical adequacy of the quantitative assumptions and methods used by the Draft EIS to support the NRC Staff’s claim that accident risks at Oconee during the SLR term will be “SMALL.”  In addition to the deficiencies in compliance with the legal standard of = what constitutes “adequate protection” for Oconee flood protection and the NRC hiding the ball, there are more inadequacies in the NRC DEIS. An example being that Beyond Nuclear’s expert witness, Jeff Mitman, nuclear engineer and a retired NRC risk analyst with working experience of Oconee, points out that Duke Energy and NRC have understated the severe accident risk for the license renewal period brought on by potential adverse conditions from climate change and other hazard events. This includes the failure to identify the aggregate of  numerous other risks including a significant fire resulting in containment failure to determine an “all hazards” core damage frequency for the renewal period.

Contention 3: The Petitioners challenge the NRC Draft EIS’s failure to address the reasonably foreseeable adverse impacts of climate change on the potential for radiological accidents and their environmental impacts at the Oconee reactors and potentially far beyond.

Attorney Curran points out that this is a contention of omission. There is no discussion of climate change effects in the DEIS on increased severe accident risk. The Petitioners have no way to identify a deficient discussion because it does not exist. Oconee presents the NRC with the example of the United States equivalent of the Fukushima accident in waiting with radiological consequences from an inland “tsunami” simultaneously disabling all safety systems at three nuclear power reactors impacted by an inundating flood. Climate change effects on accident risk are now indeed reasonably foreseeable. This is explicitly addressed in the new evidence introduce by the April 2, 2024 GAO report, which focuses on the NRC which in our view is actually blinded by its hindsight. In fact, the GAO Report specifically identified Oconee nuclear station in the report’s Appendix III “Nuclear Power Plant Exposure to Selected Natural Hazards,” Table 1: “Potential Exposure to Current and Future Hazards at Operating Nuclear Power Plants” at page 59 with a Flood Hazard Level of “High.”

Finally, Contention 3 and the GAO Report show that the NRC does not have a reliable systematic way to address climate change effects on severe accident risk. Thus, at present, the NRC has nothing to point to that lies in the realm of Atomic Energy Act safety programs.

Therefore, the Petitioners assert that the NRC should not proceed with this extreme relicensing proceeding without an evidentiary hearing that redresses these contentions.