UNITED STATES OF AMERICA 

NUCLEAR REGULATORY COMMISSION 

COMMISSIONERS: 

Stephen G. Burns, Chairman 

Kristine L. Svinicki 

Jeff Baran 

In the Matter of 

DUKE ENERGY CAROLINAS, LLC 

(William States Lee III Nuclear Station, Units 1 and 2) 

Docket Nos. 52-018-COL

 52-019-COL

CLI-16-19

MEMORANDUM AND ORDER 

 On October 5, 2016, we held a hearing on the combined license (COL) application of 

Duke Energy Carolinas, LLC to construct and operate two new nuclear reactors in Cherokee 

County, South Carolina. In this uncontested proceeding, we consider whether the review of the 

application by the NRC Staff has been adequate to support the findings set forth in 10 C.F.R. 

§§ 52.97(a) and 51.107(a). As discussed below, we conclude that the Staff’s review was 

sufficient to support the regulatory findings, and we authorize issuance of the combined 

licenses. 

I. BACKGROUND 

A. Proposed Action 

In December 2007, Duke applied to build two Advanced Passive 1000 (AP1000) 

reactors on the William States Lee III Nuclear Station site in Cherokee County, South Carolina. 
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Consistent with 10 C.F.R. Part 52, Appendix D, Duke’s application references the AP1000 

certified design, as amended in design control document (DCD) Revision 19.1 Issues resolved 

in the AP1000 design certification rulemaking are closed and will not be revisited here, unless 

they are the subject of a departure or exemption. The Staff accepted the application for review 

in February 2008.2

The Staff followed the design-centered review approach, under which the Staff performs 

one technical review for each standard issue outside the DCD. Under this approach, the first 

combined license application for a given design is designated the “reference COL” application 

(RCOLA) and later applications referencing the same design are designated “subsequent COL” 

applications (SCOLA). Where the Staff has already resolved an issue with respect to the 

RCOLA, the Staff’s review of the same issue in an SCOLA consists of confirming that the 

information is identical in both applications. The application for Vogtle Electric Generating Plant, 

Units 3 and 4 was designated as the RCOLA for the AP1000 design; the Lee combined license 

application is therefore considered an SCOLA, with a correspondingly limited review.3

 

1 See Ex. NRC-011A, William States Lee III Nuclear Station Units 1 and 2, COL Application—

Part 2, Final Safety Analysis Report, rev. 11 (Apr. 2016), at 1.1-1 (ADAMS accession no. 

ML16124A665 (package)) (FSAR); see also Westinghouse AP1000 Design Control Document, 

rev. 19 (June 13, 2011) (ML11171A287 (package)) (AP1000 DCD). The Revision 19 design 

was certified in 10 C.F.R. Part 52, Appendix D, “Design Certification Rule for the AP1000 

Design.” 

2 Duke Energy; Acceptance for Docketing of an Application for [Combined Licenses] for William 

States Lee III Units 1 and 2, 73 Fed. Reg. 11,156, 11,156 (Feb. 29, 2008). 

3 See Ex. NRC-001, “Staff Statement in Support of the Uncontested Hearing for Issuance of 

Combined Licenses for the William States Lee III Nuclear Station Units 1 and 2 (Docket Nos. 

52-018 and 52-019),” Commission Paper SECY-16-0094 (Aug. 8, 2016), at 4 (ML16123A064) 

(Staff Information Paper). 
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Over the past eight years, the Staff has spent approximately 67,000 hours on the safety 

and environmental reviews of the application.4 During this time, the Staff conducted several 

public meetings and teleconferences.5 Duke responded to approximately 950 Staff requests for 

additional information, 700 of which were associated with the safety review and 250 of which 

were associated with the environmental review.6

The Office of New Reactors led the Staff’s technical review, with support from across the 

agency.7 Because building on the proposed site will require permits from the U.S. Army Corps 

of Engineers (Corps), the Corps participated in preparing the Final Environmental Impact 

Statement (Final EIS) as a cooperating agency.8 In addition, the Staff consulted with federal, 

state, local, and tribal organizations and governments concerning a variety of issues, including 

those arising under the National Environmental Policy Act of 1969 (NEPA), the National Historic 

Preservation Act (NHPA), and the Endangered Species Act.9 The Advisory Committee on 

Reactor Safeguards (ACRS), a committee of technical experts advising the Commission, 

provided an independent assessment of the safety aspects of Duke’s application.10

 

4 Tr. at 51-52 (Ms. Ordaz). 

5 See Ex. NRC-001, Staff Information Paper, at 5; Tr. at 52 (Ms. Ordaz). 

6 Tr. at 52 (Ms. Ordaz). 

7 Id. at 52-53 (Ms. Ordaz). 

8 Ex. NRC-010, “Final Environmental Impact Statement for Combined Licenses (COLs) for 

William States Lee III Nuclear Station Units 1 and 2,” NUREG-2111, vols. 1-3 (Dec. 2013), at 

xxxi to xxxii (ML16281A350) (Final EIS); Tr. at 59 (Mr. Lee). 

9 Tr. at 60 (Mr. Lee); Ex. NRC-001, Staff Information Paper, at 6. 

10 AEA § 182b., 42 U.S.C. § 2232(b); 10 C.F.R. §§ 1.13, 52.87; see Letter from John W. Stetkar, 

Chairman, ACRS, to Stephen G. Burns, Chairman, NRC (Dec. 14, 2015), at 5 (ML15348A196) 

(2015 ACRS Letter) (generally recommending approval of the combined license application); 

Letter from Dennis C. Bley, Chairman, ACRS, to Stephen G. Burns, Chairman, NRC (Apr. 18, 
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Duke’s application does not reference an early site permit.11 Therefore, all site 

characteristics, including site geology, hydrology, seismology, and man-made hazards, as well 

as the potential environmental impacts of the project, were considered during the review of the 

combined license application. 

B. Review Standards 

Section 189a. of the Atomic Energy Act of 1954, as amended (AEA), requires that we 

hold a hearing on each application to construct a nuclear power plant, regardless of whether an 

interested member of the public requests a hearing on the application.12 With respect to safety 

matters, we must determine whether: 

(1) the applicable standards and requirements of the AEA and the 

Commission’s regulations have been met; 

(2) any required notifications to other agencies or bodies have been duly 

made; 

(3) there is reasonable assurance that the facility will be constructed and will 

operate in conformity with the licenses, the provisions of the AEA, and the 

Commission’s regulations; 

(4) the applicant is technically and financially qualified to engage in the 

activities authorized by the licenses; and 

(5) issuance of the licenses will not be inimical to the common defense and 

security or to the health and safety of the public.13

With respect to environmental matters, we must: 

 

2016) (ML16102A149) (2016 ACRS Letter). In 2016, the ACRS recommended the approval of 

five departures from the AP1000 design and associated exemption requests, which are 

discussed in more detail below. 2016 ACRS Letter at 1-2. 

11 See 10 C.F.R. pt. 52, subpt. A, “Early Site Permits” (describing the process for obtaining and 

the effect of early site permits). 

12 AEA § 189a., 42 U.S.C. § 2239(a). 

13 10 C.F.R. § 52.97(a). 
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(1) determine whether the requirements of NEPA section 102(2)(A), (C), and 

(E), and the applicable regulations in 10 C.F.R. Part 51 (the NRC 

regulations implementing NEPA) have been met; 

(2) independently consider the final balance among conflicting factors 

contained in the record of the proceeding with a view to determining the 

appropriate action to be taken; 

(3) determine, after weighing the environmental, economic, technical, and 

other benefits against environmental and other costs, and considering 

reasonable alternatives, whether the combined licenses should be issued, 

denied, or appropriately conditioned to protect environmental values; and 

(4) determine whether the NEPA review conducted by the NRC Staff has 

been adequate.14

With the exception of one issue for which, as discussed in more detail below, we must 

provide our express approval, we do not review Duke’s application de novo; rather, our inquiry 

is whether the Staff’s review was sufficient to support these findings.15

C. Contested Proceeding 

After the Staff accepted the application for review, it provided an opportunity to challenge 

the application in an adjudicatory hearing.16 The Blue Ridge Environmental Defense League 

(BREDL) filed a petition to intervene with eleven proposed contentions.17 The South Carolina 

 

14 Id. § 51.107(a). 

15 See, e.g., DTE Electric Co. (Fermi Nuclear Power Plant, Unit 3), CLI-15-13, 81 NRC 555, 

560-61 (2015). 

16 Duke Energy; Notice of Hearing and Opportunity to Petition for Leave to Intervene and Order 

Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards Information and 

Safeguards Information for Contention Preparation on [Combined Licenses] for the William 

States Lee III Units 1 and 2, 73 Fed. Reg. 22,978 (Apr. 28, 2008). 

17 Petition for Intervention and Request for Hearing by the Blue Ridge Environmental Defense 

League (June 27, 2008) (Petition). BREDL’s proposed contentions were numbered 1-10, but 

one contention contained two separate parts. 
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Office of Regulatory Staff and the North Carolina Utilities Commission filed requests to 

participate as interested government entities.18

The Atomic Safety and Licensing Board, which was established to preside over the 

contested proceeding, found all of BREDL’s contentions inadmissible, denied the hearing 

request, and therefore denied as moot the participation requests of the two government 

entities.19 The Board, however, referred to us its dismissal of BREDL’s Contention 2 in keeping 

with the Board’s approach in the Bellefonte combined license proceeding, which had referred 

the dismissal of a substantively similar contention in that proceeding.20 Contention 2 pertained 

to the consideration of greenhouse gas emissions from the construction and operation of the 

new units.21

We declined review of the referred rulings.22 But in so doing, we observed that the 

Boards in this case and in Bellefonte had raised a general policy question concerning the 

consideration of greenhouse gas and carbon footprint impacts in environmental reviews for 

power plants.23 We stated our expectation that environmental reviews for major licensing 

 

18 Request of the South Carolina Office of Regulatory Staff for an Opportunity to Participate in 

any Hearing and to Be Added to the Official Service List (June 27, 2008); Request of the North 

Carolina Utilities Commission for an Opportunity to Participate in any Hearing and to Be Added 

to the Official Service List (July 28, 2008). 

19 LBP-08-17, 68 NRC 431, 458 (2008). 

20 Id. at 445 (citing Tennessee Valley Authority (Bellefonte Nuclear Power Plant, Units 3 and 4), 

LBP-08-16, 68 NRC 361, 419-20 (2008)). 

21 See Petition at 11-14. 

22 Duke Energy Carolinas, LLC (William States Lee III Nuclear Station, Units 1 and 2), 

CLI-09-21, 70 NRC 927, 930 (2009). BREDL did not appeal the Board’s ruling denying its 

hearing request. 

23 Id.
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actions would include the consideration of carbon dioxide and other greenhouse gas emissions 

and that reviews of reactor applications, like the combined license application at issue here, 

should encompass emissions from construction, operation, and the uranium fuel cycle.24 The 

Staff’s Final EIS discusses greenhouse gas emissions.25

During the pendency of the referred ruling on Contention 2, BREDL filed a new 

contention with the Board that challenged the agency’s 2008 Proposed Waste Confidence 

Decision and Proposed Temporary Storage Rule.26 The Board dismissed the contention and 

found that jurisdiction to review it did not rest with the Board.27 BREDL did not seek our review; 

nor did BREDL refile the contention. 

In April 2011, BREDL joined several petitioners across multiple dockets in the filing of a 

petition to suspend final reactor licensing and rulemaking decisions and for other relief in light of 

the March 2011 Fukushima Dai-ichi accident.28 We declined to suspend the proceedings, but 

we granted the request for a safety analysis of the accident based on the agency’s plans for a 

short-term and long-term lessons-learned review, and we referred portions of the petition 

 

24 Id. at 930-31. 

25 See Ex. NRC-010, Final EIS at 4-113, 5-66 to 5-67, 6-10, 7-41 to 7-42, app. J. 

26 New Contention Eleven (Mar. 9, 2009; served Mar. 10, 2009). See generally Waste 

Confidence Decision Update, 73 Fed. Reg. 59,551 (Oct. 9, 2008); Proposed Rule, 

Consideration of Environmental Impacts of Temporary Storage of Spent Fuel after Cessation of 

Reactor Operation, 73 Fed. Reg. 59,547 (Oct. 9, 2008). 

27 Licensing Board Memorandum and Order (Regarding BREDL’s New Contention Eleven) (Apr. 

29, 2009), at 4-5 (unpublished). (The Board’s jurisdiction ended when the Board denied 

BREDL’s hearing request.) 

28 Emergency Petition to Suspend all Pending Reactor Licensing Decisions and Related 

Rulemaking Decisions Pending Investigation of Lessons Learned from Fukushima Daiichi 

Nuclear Power Station Accident (Apr. 18, 2011). 
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relating to pending certified design applications, including the AP1000 amendment, to the Staff 

as comments on the then-pending design certification rulemaking.29

Later that year, BREDL joined petitioners from other dockets to file a new contention 

asserting that the completed lessons-learned report of the Fukushima Near-Term Task Force 

had raised new and significant information that must be considered in the pending licensing 

proceedings.30 A Board tasked specifically with ruling on these contentions found the filings 

premature and denied them on that basis.31 BREDL appealed, but we found that BREDL had 

not raised a substantial question to warrant our review.32

 

29 Union Electric Co. d/b/a Ameren Missouri (Callaway Plant, Unit 2), CLI-11-5, 74 NRC 141, 

175-76 (2011). The Staff responded to these comments in the Statement of Considerations for 

the final rule. See Final Rule, AP1000 Design Certification Amendment, 76 Fed. Reg. 82,079, 

82,081 (Dec. 30, 2011); “NRC Responses to Public Comments, Final Rule: Amendment to 

AP1000 Design Certification Rule, 10 CFR Part 52, Appendix D” (Dec. 2011), at 9 n.1 

(ML113480018). 

30 Motion to Admit New Contention Regarding the Safety and Environmental Implications of the 

Nuclear Regulatory Commission Task Force Report on the Fukushima Dai-ichi Accident (Aug. 

11, 2011); Contention Regarding NEPA Requirement to Address Safety and Environmental 

Implications of the Fukushima Task Force Report (Aug. 11, 2011). 

31 PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant), LBP-11-27, 74 NRC 591, 595, 603 

(2011). 

32 Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 and 4), 

CLI-12-7, 75 NRC 379, 389, 392 (2012). A few months after the Board’s dismissal of the new 

Fukushima-related contentions as premature, BREDL and a subset of the other petitioners filed 

motions to reinstate their contentions based on a Commission tasking memorandum that 

directed the Staff to implement some of the recommendations of the Near-Term Task Force. 

Motion to Reinstate and Supplement the Basis for Fukushima Task Force Report Contention

(Oct. 28, 2011), at 1-2 (citing Staff Requirements—SECY-11-0124—Recommended Actions to 

Be Taken without Delay from the Near-Term Task Force Report (Oct. 18, 2011) 

(ML112911571)). The Board denied the motions for lack of jurisdiction: the Board found that the 

reinstatement motions were not included in the referral from the Secretary of the Commission or 

in the associated assignment from the Chief Administrative Judge. Luminant Generation Co., 

LLC (Comanche Peak Nuclear Power Plant, Units 3 and 4), LBP-11-36, 74 NRC 768, 772-73 
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A new round of litigation commenced in 2012 in response to the D.C. Circuit’s vacatur 

and remand of the agency’s Waste Confidence Decision Update and Temporary Storage 

Rule.33 BREDL and several other petitioners sought to suspend pending licensing decisions, 

among other requested relief, until the agency completed action on the court’s remand.34 About 

a month later, BREDL filed a motion to reopen the proceeding to admit a contention challenging 

Duke’s Environmental Report in light of the court’s decision.35 We granted the petitions in 

part—we suspended final licensing decisions until the court’s remand was appropriately 

addressed and held any related contentions, including BREDL’s proposed contention in this 

matter, in abeyance until further order.36

We lifted the suspension on final licensing decisions after we approved a generic 

environmental impact statement (GEIS) and final Continued Storage Rule that addressed the 

issues in the D.C. Circuit’s remand.37 We dismissed BREDL’s proposed contention as a 

 

(2011). We acknowledged the Board’s ruling when we denied the petition for review. CLI-12-7, 

75 NRC at 386-87 n.23. 

33 See generally New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012); Final Rule, Consideration of 

Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor 

Operation, 75 Fed. Reg. 81,032 (Dec. 23, 2010); Waste Confidence Decision Update, 75 Fed. 

Reg. 81,037 (Dec. 23, 2010). 

34 Petition to Suspend Final Decisions in all Pending Reactor Licensing Proceedings Pending 

Completion of Remanded Waste Confidence Proceedings (June 18, 2012). 

35 Motion to Reopen the Record for William States Lee III Units 1 and 2 (July 9, 2012); 

Intervenors’ Motion for Leave to File a New Contention Concerning Temporary Storage and 

Ultimate Disposal of Nuclear Waste at William States Lee III Units 1 and 2 (July 9, 2012). 

36 Calvert Cliffs 3 Nuclear Project, LLC and UniStar Nuclear Operating Services, LLC (Calvert 

Cliffs Nuclear Power Plant, Unit 3), CLI-12-16, 76 NRC 63, 67-69 (2012). 

37 Calvert Cliffs 3 Nuclear Project, LLC and UniStar Nuclear Operating Services, LLC (Calvert 

Cliffs Nuclear Power Plant, Unit 3), CLI-14-8, 80 NRC 71, 74-75 (2014). See generally Final 

Rule, Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,238 (Sept. 19, 2014); Generic 
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challenge to the new rule.38 BREDL thereafter joined another multi-docket suspension petition 

with a proposed new contention that challenged the Continued Storage Rule’s lack of safety 

findings, later followed by a motion to supplement the Lee Final EIS to cross-reference the 

Continued Storage Rule and GEIS and a motion to lodge an associated “placeholder” 

contention.39 We denied the petitions and motions.40 All contested issues in this proceeding 

have now been resolved. 

 

 

Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 

56,263 (Sept. 19, 2014); Generic Environmental Impact Statement for Continued Storage of 

Spent Nuclear Fuel,” NUREG-2157 (Aug. 2014) (ML14188B749). 

38 Calvert Cliffs, CLI-14-8, 80 NRC at 81. 

39 Petition to Suspend Final Decisions in all Pending Reactor Licensing Proceedings Pending 

Issuance of Waste Confidence Safety Findings (Sept. 29, 2014; errata filed Oct. 1, 2014); 

Petitioner’s Motion for Leave to File a New Contention Concerning the Absence of Required 

Waste Confidence Safety Findings in the Licensing Proceeding at William States Lee III Nuclear 

Power Plant (Sept. 29, 2014); Motion to Reopen the Record for William States Lee III Nuclear 

Power Plant (Sept. 29, 2014); Petition to Supplement Reactor-Specific Environmental Impact 

Statements to Incorporate by Reference the Generic Environmental Impact Statement for 

Continued Spent Fuel Storage (Jan. 28, 2015); Blue Ridge Environmental Defense League’s 

Hearing Request and Petition to Intervene in Combined License Proceeding for W.S. Lee 

Nuclear Power Plant (Apr. 22, 2015); Blue Ridge Environmental Defense League’s Motion to 

Reopen the Record of Combined License Proceeding for W.S. Lee Nuclear Power Plant (Apr. 

22, 2015). 

40 Duke Energy Carolinas, LLC (William States Lee III Nuclear Station, Units 1 and 2), 

CLI-15-15, 81 NRC 803, 804-05 (2015); DTE Electric Co. (Fermi Nuclear Power Plant, Unit 3), 

CLI-15-10, 81 NRC 535, 544 (2015); DTE Electric Co. (Fermi Nuclear Power Plant, Unit 3), 

CLI-15-4, 81 NRC 221, 242 (2015). Several petitioners sought review of the Continued Storage 

Rule and GEIS in the D.C. Circuit. The court denied the petitions for review, and a subset of 

petitioners, including BREDL, filed a petition for rehearing en banc that was also denied. New 

York v. NRC, 824 F.3d 1012 (D.C. Cir. 2016); Petition for Rehearing En Banc at 1 n.1, New 

York v. NRC, No. 14-1210 (D.C. Cir. July 18, 2016); New York v. NRC, No. 14-1210 (D.C. Cir. 

Aug. 8, 2016) (order denying petition for rehearing en banc). 
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D. Uncontested Proceeding 

All safety and environmental matters relevant to the combined license application, 

except those resolved in the contested proceeding, are subject to our review in the uncontested 

proceeding.41 The uncontested portion of the proceeding begins once the Staff has completed 

both its environmental and safety reviews. Here, the Final EIS was completed in 2013, 

therefore the release of the Final Safety Evaluation Report (FSER) on August 1, 2016, triggered 

the uncontested proceeding.42 Shortly after the FSER was released, we received the Staff’s 

statement in support of the uncontested hearing, which serves as the Staff’s initial testimony 

and provides an overview of its safety and environmental review of the application.43 Consistent 

with the design-centered review approach, the Staff’s paper focused on “non-routine matters, 

such as unique features of the facility or novel issues that arose as part of the review process.”44

1. Pre-Hearing Activities 

We issued a Notice of Hearing on August 10, 2016, which set a schedule for pre-hearing 

filings.45 We also invited interested states, local government bodies, and federally recognized 

 

41 See, e.g., Fermi, CLI-15-13, 81 NRC at 564-65. 

42 See Ex. NRC-009-R, “Final Safety Evaluation Report for Combined Licenses for William 

States Lee III Nuclear Station Units 1 and 2” (Aug. 2016) (ML16281A330) (FSER). A portion of 

the FSER is non-public and was admitted into the record as NRC-009A. 

43 Ex. NRC-001, Staff Information Paper. 

44 Id. at 2. 

45 Duke Energy Carolinas, LLC; William States Lee III Nuclear Station, Units 1 and 2, 81 Fed. 

Reg. 54,622, 54,623 (Aug. 16, 2016) (Notice of Hearing); see also DEC-001, Applicant’s PreFiled Testimony in Support of the Mandatory Hearing for the William States Lee III Nuclear 

Station, Units 1 and 2 Combined Licenses (Sept. 28, 2016) (Duke Pre-Filed Testimony); Ex. 

DEC-002, Curriculum Vitae of Robert H. Kitchen (Sept. 28, 2016). 
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Indian tribes to provide a statement of issues for us to consider as part of the uncontested 

proceeding.46 We received comments from the Attorney General of the State of South Carolina, 

the Secretary of Environmental Quality for the State of North Carolina, and the Tribal Historic 

Preservation Office for the Eastern Band of the Cherokee Indians.47 The letter from South 

Carolina expressed support for the proposed Lee Nuclear Station.48 The letter from North 

Carolina expressed support for nuclear power and suggested that a larger region of interest for 

the consideration of alternative sites “may identify a more suitable location with closer proximity 

to load centers.”49 The Eastern Band of the Cherokee Indians discussed the project in relation 

to consultation under the NHPA and indicated that the project “will not result in any ground 

disturbing activities which might adversely affect any cultural resources or archaeological sites 

significant to the Cherokee people.”50 The Tribe requested, however, that if plans change or if 

 

46 Notice of Hearing, 81 Fed. Reg. at 54,623-24. 

47 Letter from Alan Wilson, Attorney General, State of South Carolina, to Annette L. Vietti-Cook, 

Secretary of the Commission (Aug. 26, 2016) (ML16245A223) (South Carolina); Letter from 

Donald R. van der Vaart, Secretary, North Carolina Department of Environmental Quality, to 

Annette L. Vietti-Cook, Secretary of the Commission, NRC (Aug. 25, 2016) (ML16245A222) 

(North Carolina); E-mail from Holly Austin, Federal Cultural Resource Law Liaison, Tribal 

Historic Preservation Office, Eastern Band of the Cherokee Indians, to Hearing Docket, NRC 

(Sept. 7, 2016 09:07 EDT) (ML16252A117) (Eastern Band of the Cherokee Indians). The South 

Carolina Public Service Commission sent a letter acknowledging the date of the hearing and our 

invitation to comment and indicated that information about the hearing had been shared with the 

Executive Director of the South Carolina Office of Regulatory Staff. Letter from Swain E. 

Whitfield, Chairman, South Carolina Public Service Commission, to Annette L. Vietti-Cook, 

Secretary of the Commission (Sept. 13, 2016) (ML16278A721). 

48 South Carolina at 1. 

49 North Carolina at 1; see infra notes 219-37 and accompanying text (discussing the 

consideration of alternative sites). 

50 Eastern Band of Cherokee Indians at 1. 
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cultural resources or human remains are discovered, work on the project should cease and 

consultation under the NHPA should continue with the Tribe.51

Also as part of our pre-hearing activities we issued questions to both the Staff and Duke 

and directed they file written responses before the hearing.52 The questions ranged in topic 

from the safety-related issues of fire protection, emergency preparedness, and characteristics of 

the Lee site, to environmental issues that included the Staff’s consideration of potentially new 

and significant information since issuance of the Final EIS, environmental impacts on terrestrial 

and aquatic resources, the Staff’s interaction with other federal agencies, and the consideration 

of impacts from greenhouse gases.53 The Secretary of the Commission transmitted a 

scheduling note to the Staff and Duke that provided the topics for, and the order of 

presentations at, the hearing.54

2. The Hearing 

The hearing presentations were made by witness panels. The first panel of witnesses 

for Duke and the Staff gave an overview of the license application and the Staff’s review, 

 

51 Id.; see infra notes 245-47 and accompanying text (discussing Duke’s obligations in the event 

cultural or historic resources are inadvertently discovered). 

52 Order of the Secretary (Transmitting Pre-Hearing Questions) (Sept. 1, 2016) (unpublished) 

(Pre-Hearing Questions Order); Ex. DEC-003, Duke Energy Carolinas’ Responses to PreHearing Questions (Sept. 28, 2016) (Duke Pre-Hearing Responses); Ex. NRC-007, NRC Staff 

Responses to Commission Pre-Hearing Questions (Sept. 28, 2016) (Staff Pre-Hearing 

Responses). We also issued two questions that contain sensitive unclassified non-safeguards 

information and that therefore were filed on the non-public docket for the proceeding. The 

parties’ responses to those questions were likewise filed on the non-public docket. 

53 See Pre-Hearing Questions Order at 2-16. 

54 Scheduling Note, “Hearing on Combined Licenses for William States Lee III Nuclear Station, 

Units 1 and 2: Section 189a. of the Atomic Energy Act (Public Meeting)” (Sept. 21, 2016; 

revised Sept. 26, 2016) (ML16270A560). 
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respectively. The second panel focused on safety-related issues, and the third panel focused 

on environmental issues. Overall, the Staff made available seventy-six witnesses at the 

hearing, including scheduled panelists.55 Five witnesses offered testimony on behalf of Duke at 

the hearing and in pre-filed written testimony.56

Among other things, Duke’s overview panelists discussed the general qualifications of 

Duke; the selection of the Lee site; and Duke’s Integrated Resource Plan, including factors that 

would influence a future decision whether to build the new units.57 Additionally, the Duke 

panelists provided information regarding the Lee site, including the fact that it had served as the 

site of the former Cherokee Nuclear Station, a project that received NRC construction permits in 

1977 but was ultimately cancelled prior to completion.58 The Staff panelists provided 

background on the review of the combined license application and a summary of the Staff’s 

safety and environmental findings under 10 C.F.R. § 52.97(a), NEPA sections 102(2)(A), (C), 

and (E), and 10 C.F.R. § 51.107(a).59

The safety panel focused on two novel issues in the Staff’s review: (1) a departure from 

the AP1000 certified design involving the site foundation response spectra; and (2) Duke’s 

 

55 See Revised NRC Staff Witness List (Sept. 30, 2016). Fifteen of the listed witnesses did not 

appear at the hearing. Compare id., attach. at 1-4, with Tr. at 14-16 (Ms. Wright). 

56 See Duke Energy Carolinas’ Witness List (Sept. 14, 2016); Ex. DEC-001, Duke Pre-Filed 

Testimony; Tr. at 12 (Mr. Lewis). 

57 See Tr. at 19-37; Ex. DEC-005, Lee Nuclear Station—Overview (Sept. 28, 2016) (Duke 

Overview Presentation). 

58 See Tr. at 28-31 (Mr. Kitchen); Duke Power Co., Cherokee Nuclear Station, Units 1, 2 and 3, 

43 Fed. Reg. 2022, 2022 (Jan. 13, 1978) (Notice of Issuance of Construction Permits). 

59 See Tr. at 50-65; NRC-012, Combined License Application Review William States Lee III 

Units 1 and 2, Overview Panel (Sept. 28, 2016) (Staff Overview Presentation). 
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request to consolidate the Lee Emergency Operations Facility (EOF) with its existing Charlotte, 

North Carolina EOF for the McGuire, Catawba, and Oconee Nuclear Stations.60 The 

environmental panel discussed Duke’s proposal to build an offsite reservoir, Make-Up Pond C, 

to provide supplemental cooling for the new units, as well as the environmental impacts, the 

consideration of alternatives, and the proposed mitigation measures associated with that 

proposal.61 These issues are discussed further in section II. 

3. Post-Hearing Activities 

After the hearing, we posed three additional questions to the Staff and Duke.62 The 

parties’ written responses were admitted as exhibits, and after adopting corrections to the 

hearing transcript, we closed the evidentiary record.63 

 

60 See Tr. at 84-96; Ex. DEC-006, Lee Nuclear Station—Safety Panel (Sept. 28, 2016) (Duke 

Safety Presentation); Ex. NRC-013, Combined License Application Review William States Lee 

III Units 1 and 2, Safety Panel (Sept. 28, 2016) (Staff Safety Presentation). 

61 See Tr. at 120-36; Ex. DEC-007, Lee Nuclear Station—Environmental (Sept. 28, 2016) (Duke 

Environmental Presentation); Ex. NRC-014-R, Combined License Application Review William 

States Lee III Units 1 and 2, Environmental Panel (Sept. 28, 2016) (Staff Environmental 

Presentation). 

62 Order of the Secretary (Transmitting Post-Hearing Questions) (Oct. 12, 2016), at 2-3 

(unpublished). 

63 Order of the Secretary (Adopting Proposed Transcript Corrections, Admitting Post-Hearing 

Exhibits, and Closing the Record of the Proceeding) (Nov. 4, 2016) (unpublished). The Staff 

subsequently notified us of minor revisions to the license conditions in 2.D.(12), which we have 

taken into account. Revisions to Draft Combined Licenses (Dec. 7, 2016) (attaching table of 

revisions). 
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II. DISCUSSION 

Although our review encompassed the entire application, we discuss here a brief 

selection of the safety and environmental topics addressed during the uncontested portion of 

the proceeding. 

A. Safety-Related Issues 

1. The Lee Nuclear Station Site 

The Lee site sits near the border of North Carolina and South Carolina on the bank of 

the Broad River, approximately forty miles southwest of Charlotte, North Carolina and 

approximately twenty-five miles northeast of Spartanburg, South Carolina.64 In the 1970s Duke 

Power Company selected the site to build the Cherokee Nuclear Station.65 The NRC issued 

construction permits for the project, but it was cancelled a few years later.66 Before the 

Cherokee project was terminated, however, considerable site preparation work had been done, 

including the installation of roads; the construction of reservoirs, including Make-Up Ponds A 

and B; and excavation of the power block and partial construction of Cherokee Unit 1.67

As part of its site investigation work for the Lee application, Duke removed several of the 

above-ground structures remaining from the Cherokee project and used a significant amount of 

 

64 Tr. at 26 (Mr. Kitchen); Ex. DEC-005, Duke Overview Presentation, at 2. 

65 Tr. at 28 (Mr. Kitchen); Ex. NRC-011A, FSAR at 2.1-2; Ex. NRC-010, Final EIS at 2-5. 

66 See Notice of Issuance of Construction Permits, 43 Fed. Reg. at 2022; Duke Power Co.

(Cherokee Nuclear Station, Units 1, 2, and 3), ALAB-745, 18 NRC 746, 747 & n.1 (1983). 

67 Tr. at 28-29 (Mr. Kitchen); Ex. DEC-005, Duke Overview Presentation, at 4; EX. NRC-011A, 

FSAR at 2.1-2 to 2.1-3. 
- 17 -

this material for fill, as well as for stabilizing the banks of the existing reservoirs.68 Additionally, 

Duke verified the geologic mapping and investigation that had been done for the Cherokee 

project to ensure its applicability to Lee.69 Duke confirmed that the Cherokee geologic mapping 

had been correctly documented and “confirmed that the Cherokee foundation concrete meets 

the strength requirements for the AP1000 in the certified design.”70 Lee Unit 1 will be located on 

the foundation for what was to become Cherokee Unit 1.71

The Staff conducted a confirmatory analysis of Duke’s site investigation activities.72 At 

the hearing, the Staff explained that it looked “carefully at the rejuvenation of the original 

[mapping]” and that it had the opportunity to ask questions of the individual who had led the 

mapping effort for the Cherokee project.73 The Staff also visited the site to observe the 

orientation of particular geologic features relative to the proposed units.74 Based on Duke’s site 

investigations and the Staff’s confirmatory analysis, the Staff “conclude[d] that the applicant 

 

68 Ex. DEC-005, Duke Overview Presentation, at 5-6; Tr. at 29-30 (Mr. Kitchen). 

69 Tr. at 30 (Mr. Kitchen); see also, e.g., Ex. NRC-011A, FSAR § 2.5.1.2.5.5. 

70 Tr. at 30-31 (Mr. Kitchen). 

71 Id. at 30 (Mr. Kitchen); Ex. NRC-011A, FSAR at 2.5-206. 

72 See NRC-009-R, FSER § 2.5.1.4. 

73 Tr. at 106 (Dr. Stirewalt). 

74 Id. at 106-07 (Dr. Stirewalt); see also Ex. NRC-009-R, FSER at 2-238 (describing visits 

“between April 27 and May 2, 2008, [between] January 27 and 28, 2009, [between] July 12 to 

14, 2011, and on February 10, 2014, to meet with the applicant regarding the geologic, seismic, 

geophysical, and geotechnical investigations conducted to characterize the site”). Technical 

experts from the U.S. Geological Survey accompanied the Staff on the January 2009 site visit. 

Ex. NRC-009-R, FSER at 2-238. 
- 18 -

properly characterized regional and site lithology, stratigraphy, geologic and tectonic history, 

and structural geology, as well as subsurface soil materials and rock units at [the Lee site].”75

Additional work must be completed to remove former Cherokee legacy structures. For 

example, a proposed license condition would require Duke to confirm that a particular legacy 

stormwater drain line and its associated bedding material (if any) have been removed and the 

excavation backfilled with compacted native soils.76 In the FSAR, Duke assumed the removal 

and backfill of this drain line to curb a potential preferential groundwater flow pathway for 

radionuclide transport from a postulated accident.77 The Staff proposed the license condition 

because the line’s removal was the basis for finding Duke’s analysis acceptable.78 Additionally, 

Duke has committed to removing or modifying other legacy structures to prepare the nuclear 

island foundation for Lee Unit 1.79 Specifically, “the isolation joint material between the legacy 

Cherokee reactor and auxiliary building basemats within the Lee Unit 1 Nuclear Island 

 

75 Ex. NRC-009-R, FSER at 2-265. A proposed license condition in the draft license for Unit 2 

would require Duke to perform mapping for that unit and inform the NRC once excavations for 

its safety-related structures are open for examination. Ex. NRC-003, Combined License, 

William States Lee III Nuclear Station Unit 2 (Sept. 9, 2016), at 15 (ML16281A338) (Draft 

Combined License—Unit 2); Tr. at 104-05. 

76 Ex. NRC-002, Combined License, William States Lee III Nuclear Station Unit 1 (Sept. 9, 

2016), at 14 (ML16281A336) (Draft Combined License—Unit 1); Ex. NRC-003, Draft Combined 

License—Unit 2, at 14. 

77 Ex. DEC-003, Duke Pre-Hearing Responses, at 16; Ex. NRC-011A, FSAR §§ 2.4.12.2.3, 

2.4.13. 

78 Tr. at 103 (Mr. Hughes); Ex. NRC-007, Staff Pre-Hearing Responses, at 10. At the hearing, 

the Staff explained that the drain line removal was solely part of the hydrologic analysis; neither 

the removal of the drain line nor the removal of other legacy structures impacted the seismic 

analysis. Tr. at 104 (Mr. Hughes). 

79 See Ex. NRC-011A, FSAR § 2.5.4.5.2.1; Ex. DEC-003, Duke Pre-Hearing Responses, at 16-

17. 
- 19 -

foundation support zone will be removed”; “the legacy Cherokee groundwater drainage system 

will be sealed with fill concrete where exposed by excavation”; and “protective sheathing and 

waterproofing membranes associated with the legacy Cherokee pit/pump rooms will be 

removed.”80

2. The Lee Nuclear Station Site Foundation Response Spectra 

With regard to seismic considerations, Duke explained that the site spectra for the Lee 

site were developed using the 2012 Central Eastern United States Seismic Source 

Characterization for Nuclear Facilities and the Electric Power Research Institute’s 2013 Ground 

Motion Model.81 The seismic design basis for the AP1000 standard plant is a Certified Seismic 

Design Response Spectra (CSDRS).82 The AP1000 standard plant design also has been 

qualified for the Hard Rock High Frequency Spectra (HRHF Spectra) to address high-frequency 

spectra exceedances for hard rock sites in the Central and Eastern United States.83 The Lee 

site is a uniform hard rock site.84 When compared to the CSDRS and HRHF Spectra, the Lee 

site-specific vertical and horizontal foundation response spectra exceed both the CSDRS and 

 

80 Ex. DEC-003, Duke Pre-Hearing Responses, at 16-17 (citing Ex. NRC-011A, FSAR 

§ 2.5.4.5.2.1, figs. 2.5.4-244a to 2.5.4-244e, 2.5.4-266). 

81 Tr. at 85 (Mr. Thrasher). 

82 See AP1000 DCD, Tier 2 Material, at 3.7-1; Tr. at 84 (Mr. Thrasher). 

83 Tr. at 84 (Mr. Thrasher); AP1000 DCD, Tier 2 Material, at 3I-1. 

84 Tr. at 85 (Mr. Thrasher). 
- 20 -

the HRHF Spectra in the high frequency range.85 Accordingly, Duke has requested a departure 

from the AP1000 DCD.86

 To justify this departure, a site-specific seismic evaluation was performed to 

demonstrate that the exceedance in the high-frequency range is non-damaging and therefore 

acceptable.87 The site-specific analysis used “the same general screening criteria documented 

in . . . Appendix 3I [of the AP1000 DCD] . . . to identify a representative sample of structures, 

components, supports, piping and equipment to evaluate . . . the acceptability of the AP1000 

certified design for the Lee Nuclear Station [high frequency] motion.”88 The “site-specific 

analysis include[d] evaluations of building structures, reactor pressure vessel internals, primary 

component supports, primary loop nozzles, piping[,] and electro-mechanical equipment.”89 With 

regard to design forces and moments for structures and equipment, Duke stated that the 

analysis confirmed that the CSDRS bounds the Lee site-specific spectra results with significant 

margin.90 Duke also stated that “CSDRS and HRHF piping stresses envelope the Lee sitespecific spectra piping stresses,” and that “[t]est [r]esponse [s]pectra used to qualify AP1000 

 

85 Tr. at 85-86 (Mr. Thrasher); DEC-001, Duke Pre-Filed Testimony, at 10; NRC-013, Staff 

Safety Presentation, at 5-6; NRC-011E, William States Lee III Nuclear Station Units 1 and 2 

COL Application—Part 7 Departures and Exemption Requests, rev. 11 (Apr. 2016), at 9-10 

(ML16124A093) (Departures and Exemptions). 

86 See Ex. NRC-011E, Departures and Exemptions, at 10-13; Ex. NRC-001, Staff Information 

Paper, at 21-22. 

87 Tr. at 91 (Mr. Roche-Rivera); see also id. at 85-86 (Mr. Thrasher); Ex. NRC-011E, Departures 

and Exemptions, at 10. 

88 Ex. NRC-011E, Departures and Exemptions, at 10; see AP1000 DCD, Tier 2 Material, app. 

3I. 

89 Ex. NRC-011E, Departures and Exemptions, at 11. 

90 Tr. at 86 (Mr. Thrasher); see also Ex. NRC-011E, Departures and Exemptions, at 11. 
- 21 -

high-frequency sensitive equipment bound the required response spectra for the Lee sitespecific equipment qualification.”91 Duke concluded that “the high frequency seismic input for 

the Lee site is non-damaging and the Lee site is qualified for deployment of the AP1000 

standard plant.”92

The Staff reviewed the site-specific analyses and Duke’s responses to requests for 

additional information and concluded that the AP1000 design “is adequate for use at the Lee 

site.”93 The Staff thus found Duke’s requested departure acceptable.94 The ACRS reviewed the 

requested departure and determined that the “[s]ite seismic inputs . . . have been adequately 

addressed by [Duke] and the [S]taff.”95 The ACRS recommended that the departure be 

approved.96

Duke committed to ensure “that future equipment qualification testing for high frequency 

sensitive equipment envelopes the [Lee] site-specific [required response spectra], in addition to 

 

91 Tr. at 86 (Mr. Thrasher). The required response spectra “defines the response spectra or 

seismic demand for which equipment must remain functional during a Safe Shutdown 

Earthquake.” Ex. NRC-007, Staff Pre-Hearing Responses, at 9. Equipment qualification testing 

was performed in support of the entire fleet of AP1000s. See Ex. DEC-003, Duke Pre-Hearing 

Responses, at 15-16. 

92 Tr. at 86-87 (Mr. Thrasher). 

93 Id. at 93 (Mr. Roche-Rivera). 

94 Id. (Mr. Roche-Rivera); see also Ex. NRC-009-R, FSER § 3.7.2.4. With regard to the 

requirements in 10 C.F.R. Part 52 and Part 100 and siting issues more generally, the Staff 

“conclude[d] that the proposed . . . site is acceptable from the standpoint of geologic and 

seismic information and meets the requirements of 10 CFR 100.23 and 10 CFR 52.79(a)(1)(iii).” 

Ex. NRC-009-R, FSER at 2-265. 

95 2015 ACRS Letter at 1. 

96 Id.
- 22 -

the CSDRS and HRHF [required response spectra].”97 We asked whether Duke or the Staff had 

considered imposing a license condition (as opposed to accepting a commitment) given the 

need for a departure from the design.98 In response, the Staff and Duke noted, as mentioned 

above, that the test response spectra used in the AP1000 equipment qualification testing bound 

the Lee site-specific required response spectra.99 The Staff also noted that “[t]here are systembased ITAAC that require the seismic Category I high frequency sensitive equipment to 

withstand seismic design basis loads without loss of safety function.”100 According to the Staff, 

the ITAAC and the commitment together “provide reasonable assurance that the high frequency 

sensitive equipment will be qualified for the [Lee] site-specific [required response spectra].”101 

Additionally, the Staff pointed out that during operation, any replacement equipment must meet 

seismic suitability requirements in accordance with Duke’s Quality Assurance Program.102 The 

Staff therefore concluded that a license condition in lieu of the FSAR commitment was not 

necessary.103 Similarly, Duke “believes that the . . . FSAR commitment is the appropriate 

measure to ensure long-term attention to this aspect of equipment qualification for [Lee] Units 1 

and 2.”104

 

97 Ex. DEC-003, Duke Pre-Hearing Responses, at 15 (citing Ex. NRC-011A, FSAR § 3.7.2.15, 

at 3.7-9). 

98 Pre-Hearing Questions Order at 5-6. 

99 Ex. DEC-003, Duke Pre-Hearing Responses, at 16; NRC-007, Staff Pre-Hearing Responses 

at 9. 

100 Ex. NRC-007, Staff Pre-Hearing Responses, at 9. 

101 Id.

102 Id.

103 Id.

104 Ex. DEC-003, Duke Pre-Hearing Responses, at 16. 
- 23 -

 

3. Exemptions and Departures from the AP1000 Certified Design

Duke requested seven exemptions and identified thirteen departures, including the 

departure regarding the Lee Nuclear Station site-specific foundation response spectra.105 Duke 

explained at the hearing that its goal was to minimize the number of departures from the design 

while still recognizing that some changes were necessary to maintain standardization.106

Ten of Duke’s identified departures are common to other combined license applications 

referencing the AP1000 certified design.107 Five of these departures are identical to those 

proposed for the first time in the Levy Nuclear Plant combined license application, which also 

referenced the AP1000 certified design.108 These departures concern the condensate return 

system and passive residual heat removal cooling; the main control room habitability dose 

analysis; heat load in the main control room; hydrogen control in containment; and the boron 

dilution block safety system bypass.109 Because these departures require changes to AP1000 

 

105 Ex. NRC-001, Staff Information Paper, at 13. 

106 Tr. at 44-45 (Mr. Kitchen). 

107 Ex. NRC-001, Staff Information Paper, at 13. 

108 Id.; see Ex. NRC-009-R, FSER, ch. 21; 2016 ACRS Letter. We recently authorized issuance 

of the combined licenses for Levy Nuclear Plant Units 1 and 2; the Staff issued the combined 

licenses on October 26, 2016. Duke Energy Florida, LLC (Levy Nuclear Plant, Units 1 and 2), 

CLI-16-16, 84 NRC __ (Oct. 20, 2016) (slip op.); Letter from Francis M. Akstulewicz, NRC, to 

Christopher M. Fallon, Duke Energy Florida (Oct. 26, 2016) (ML16176A200). 

109 See Ex. NRC-001, Staff Information Paper, at 15-17; Ex. NRC-011E, Departures and 

Exemptions, at 1; Ex. NRC-009-R, FSER § 1.2.3. The remaining five departures of the ten 

common to other AP1000 applications concern the organization and numbering of the FSAR; a 

regulatory citation in an interface description; revisions to the “Envir. Zone” numbers for spent 

fuel pool level instrumentation; quantification of the term “indefinitely” in the DCD for 

maintenance of safe shutdown conditions using the passive residual heat removal heat 
- 24 -

Tier 1 information and technical specifications, exemptions also are required for their 

approval.110 Thus, five of Duke’s seven exemption requests pertain to these departures.111

Consistent with the design-centered review approach, the Staff designated the Levy 

combined license application as the “reference” application for the five common departures and 

exemptions; the Lee application is a “subsequent” application.112 The Staff performed one 

review, then confirmed that the information was identical in the Lee application.113 The ACRS 

reviewed and recommended approval of the requested departures and exemptions.114 As 

discussed in further detail in our decision authorizing issuance of the combined licenses for the 

Levy Nuclear Plant, the Staff found each of the requested departures and their accompanying 

exemptions acceptable.115

 

exchanger during a non-loss-of-coolant accident; and isolating current in Class 1E voltage 

regulating transformers. Ex. NRC-001, Staff Information Paper, at 18-19. 

110 Ex. NRC-001, Staff Information Paper, at 13-14. 

111 The remaining two exemption requests are similar to those previously granted to other 

combined license holders. The first relates to the organization and numbering of the combined 

license application. The second exempts the combined license holder from certain 

requirements pertaining to material control and accounting for special nuclear material, such 

that the same requirements apply to both Part 52 and Part 50 licensees. The Staff stated that 

its reasoning for finding the exemptions acceptable for the Lee application is the same as its 

reasoning for the previously approved exemption requests. Id. at 14-15; see also Southern 

Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), CLI-12-2, 75 NRC 63, 

82, 84 (2012). 

112 Ex. NRC-009-R, FSER at 21-1. 

113 Id.

114 2016 ACRS Letter at 1. 

115 Levy, CLI-16-16, 84 NRC at __ (slip op. at 17-21); see also Ex. NRC-001, Staff Information 

Paper, at 15. 
- 25 -

Three departures are unique to the Lee combined license application.116 One departure 

relates to the Lee site-specific foundation response spectra, discussed in section II.A.2 

above.117 The second Lee-specific departure addresses lateral earth pressure on below-grade 

nuclear island walls at the Lee site.118 An evaluation of lateral earth pressures on below-grade 

nuclear island walls at the site was performed and compared to the corresponding pressures in 

the AP1000 DCD.119 Duke determined that the lateral pressure of one of the evaluated load 

combinations slightly exceeds the corresponding load combination in the AP1000 DCD.120 

According to Duke, this exceedance is attributable to the groundwater level at the Lee site (eight 

feet below ground surface) compared to the groundwater level assumed in the AP1000 DCD 

(two feet below ground surface), resulting in “six additional feet of non-buoyant (heavier) soil 

than considered in the AP1000 standard evaluations, . . . [and] a corresponding higher passive 

earth pressure component” for that load combination.121

A site-specific analysis was performed to demonstrate that the site-specific lateral earth 

pressures are bounded by the AP1000 certified design.122 Duke determined that “the sitespecific nuclear island below-grade wall pressures resulting from the [nuclear island foundation 

input response spectra] will be less than those used in the standard AP1000 design for this load 

 

116 Ex. NRC-001, Staff Information Paper, at 13. 

117 Id. at 18-19. 

118 Id.

119 Ex. NRC-011E, Exemptions and Departures, at 16. 

120 Id.; see also Ex. NRC-009-R, FSER at 3-59. 

121 Ex. NRC-011E, Departures and Exemptions, at 16. 

122 Id.; Ex. NRC-001, Staff Information Paper, at 19. 
- 26 -

combination.”123 Based on Duke’s responses to requests for additional information and a review 

of the site-specific analysis, the Staff concluded that the departure is acceptable.124

The third Lee-specific departure relates to the location of the Technical Support Center 

(TSC) and the Operations Support Centers (OSC).125 The TSC is “[t]he on-site facility that 

provides plant management and technical support to reactor operating personnel located in the 

[c]ontrol [r]oom during an emergency,” and the OSCs are “on-site assembly area[s] separate 

from the [c]ontrol [r]oom and TSC where licensee operations support personnel report in an 

emergency.”126 Duke plans to move the TSC to a central location so that it can serve both units 

at the Lee site.127 The TSC therefore would be located outside the control support area, which 

is a departure from the AP1000 DCD.128 The OSCs would then occupy the space vacated by 

the TSC in the control support area for each unit.129 Placement of the TSC in the centralized 

location would mean a slight increase in travel time to the TSC in an emergency—from two 

minutes to about five minutes.130

 

123 Ex. NRC-009-R, FSER at 3-60. 

124 Id.

125 Ex. NRC-001, Staff Information Paper, at 19-20; Ex. NRC-011E, Departures and 

Exemptions, at 8. 

126 Ex. NRC-011D, William States Lee III Nuclear Station Units 1 and 2 COL Application—Part 5 

Emergency Plan, rev. 7 (Nov. 2015), at ix (ML15336A127) (Emergency Plan). 

127 See id. at A10-2. 

128 Ex. NRC-001, Staff Information Paper, at 20; Ex. NRC-011E, Departures and Exemptions, at 

8. 

129 Ex. NRC-011E, Departures and Exemptions, at 8; Ex. NRC-011D, Emergency Plan, at II-40. 

130 2015 ACRS Letter at 4. 
- 27 -

Duke reviewed the departure criteria for the AP1000 DCD in 10 C.F.R. Part 52, 

Appendix D, and determined that relocating the TSC and OSCs would not adversely affect their 

function, that the departure has no safety-significance, and that NRC approval is not required.131 

The Staff agreed that the departure does not require NRC approval.132 Nonetheless, as part of 

its analysis of Duke’s Emergency Plan, the Staff confirmed that the TSC and the OSCs would 

serve their intended emergency functions.133 The Staff’s finding with respect to the OSCs is 

subject to a demonstration of their adequacy during the full participation exercise that would be 

required before fuel load, as reflected in the inspections, tests, analyses, and acceptance 

criteria (ITAAC) in the draft combined licenses.134 The ACRS reviewed Duke’s proposal and 

found it acceptable “based on the communication and data links [that will be] provided, and 

based on the fact that it allows each unit’s [OSC] to be located adjacent to the [c]ontrol [r]oom 

where the TSC would have been located.”135

4. The Lee Nuclear Station Emergency Operations Facility 

Also related to the issue of emergency preparedness, Duke has requested to 

consolidate the EOF for the Lee site with the EOF for its McGuire, Catawba, and Oconee plants 

 

131 See Ex. NRC-011E, Departures and Exemptions, at 8-9; see 10 C.F.R. pt. 52, app. D, 

VIII.B.5. 

132 Ex. NRC-001, Staff Information Paper, at 20; Ex. NRC-009-R, FSER at 13-53, 13-58. 

133 Ex. NRC-009-R, FSER at 13-58 to 13-59. 

134 Id.; see Draft Combined License—Unit 1, at C-18 to C-19; Draft Combined License—Unit 2, 

at C-18 to C-19; Ex. NRC-011H, William States Lee III Nuclear Station Units 1 and 2 COL 

Application—Part 10 License Conditions and Inspections, Tests, Analyses, and Acceptance 

Criteria, rev. 11 (Apr. 2016), tbl. 3.8-1 (ML16124A672) (License Conditions and ITAAC); 

10 C.F.R. pt. 50, app. E, IV.F.a(ii). 

135 2015 ACRS Letter at 4. 
- 28 -

at its corporate headquarters in Charlotte, North Carolina, which, according to Duke, “has 

proven to be an effective facility for implementation of [its] nuclear station emergency plans.”136 

The Lee Nuclear Station therefore would benefit from the application of Duke’s corporate 

emergency response structure and experience.137 The Charlotte EOF is located approximately 

forty miles from the Lee Nuclear Station site.138

The EOF is the support facility responsible for “evaluating, coordinating, and directing 

the overall activities involved in coping with a radiological emergency.”139 Among other things, 

an applicant’s emergency plan must make provisions for an EOF “from which effective direction 

can be given and effective control can be exercised during an emergency.”140 Section IV.E.8.b 

 

136 Ex. NRC-011D, Emergency Plan, at A9-3. 

137 Id. at A9-2. The McGuire and Catawba stations have used a consolidated EOF since 1987; 

Duke obtained Commission approval to add the Oconee Nuclear Station in 2005. See id.; Staff 

Requirements—SECY-05-0172—Duke Power Company’s Request to Incorporate the Oconee 

Emergency Operations Facility into the EOF Shared by Catawba and McGuire Nuclear Stations 

(Nov. 2, 2005) (ML053070025). The current EOF has been in use since 2005. Ex. NRC-011D, 

Emergency Plan, at A9-2. Duke has filed a license amendment request for approval to 

incorporate the EOFs for Brunswick Steam Electric Plant Units 1 and 2, Shearon Harris Nuclear 

Power Plant Unit 1, and H.B. Robinson Steam Electric Plant Unit 2 into the Charlotte EOF. See

Ex. NRC-001, Staff Information Paper, at 21 n.1; Tr. at 35 (Mr. Kitchen); Ex. DEC-005, Duke 

Overview Presentation, at 15. Our decision today does not address the license amendment 

request, which will be considered separately. 

138 Tr. at 87 (Mr. Thrasher). 

139 Ex. NRC-009-R, FSER at 13-60; see also Ex. NRC-015, NRC Staff Responses to 

Commission Post-Hearing Questions (Oct. 20, 2016), at 2 (Staff Post-Hearing Responses); 

“Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and 

Preparedness in Support of Nuclear Power Plants,” NUREG-0654/FEMA-REP-1, rev. 1 (Nov. 

1980), at 52 (ML040420012). 

140 10 C.F.R. pt. 50, app. E, IV.E.8.a(i); see also id. § 52.79(a)(21) (requiring combined license 

applicants to provide an emergency plan that complies with 10 C.F.R. § 50.47 and 

10 C.F.R. pt. 50, app. E). 
- 29 -

of 10 C.F.R. Part 50, Appendix E expressly permits an EOF to serve more than one nuclear 

power plant site.141 But our express approval is required where—as here—an applicant or 

licensee proposes to locate the EOF more than twenty-five miles from the nuclear power plant 

site.142 Additionally, for EOFs located more than twenty-five miles from a nuclear power plant 

site, “provisions must be made for locating NRC and offsite responders closer to the nuclear 

power [plant] site so that NRC and offsite responders can interact face-to-face with emergency 

response personnel entering and leaving the . . . site.”143 These provisions must include 

adequate space and supplies for NRC and offsite responders to function effectively during an 

emergency.144

Both parties discussed the EOF as part of the safety panel presentation at the hearing, 

and we asked pre- and post-hearing questions specific to this issue. As the Staff noted in its 

pre-filed testimony, this is the first time we have reviewed a consolidated EOF for a new facility 

as part of the final review in a combined license proceeding.145

With the EOF proposed to be located approximately forty miles from the Lee site, Duke 

also plans to establish a near-site assembly area at a Duke Energy facility in Kings Mountain, 

 

141 10 C.F.R. pt. 50, app. E, IV.E.8.b. 

142 See id.; see also Staff Requirements—SECY-10-0078—Centralized Emergency Operations 

Facilities and Combined License Applications (Sept. 7, 2010) (ML102500511) (approving the 

Staff’s proposal to make the determination on the acceptability of consolidated EOFs as part of 

its review of combined license and early site permit applications). 

143 10 C.F.R. pt. 50, app. E, IV.E.8.b. 

144 See id. (including requirements for “space for conducting briefings,” “access to plant data and 

radiological information,” and “access to copying equipment and office supplies”). 

145 Ex. NRC-001, Staff Information Paper, at 21. 
- 30 -

North Carolina, approximately fifteen miles from the Lee site.146 According to Duke, the Kings 

Mountain facility provides space “sufficient for members of an NRC site team and Federal, 

State, and local responders” and it “includes an area for briefing emergency response 

personnel, communication capability with other licensee and offsite response facilities, access 

to plant data and radiological information[,] and access to copying equipment and supplies.”147

As part of its review, the Staff verified that the consolidated EOF has the capability (1) 

“to obtain and display plant data and radiological information for each reactor at a nuclear power 

reactor site and for each nuclear power reactor site that the facility serves”; and (2) “to analyze 

plant technical information and provide technical briefings on event conditions and prognosis to 

licensee and offsite response organizations for each reactor at a nuclear power reactor site and 

for each nuclear power reactor site that the facility serves.”148 The Staff noted that “[p]lant and 

effluent data would be provided on as timely a basis at an EOF in Charlotte as it would be at a 

near-site location,” that the data can be displayed at the Charlotte EOF, and that the data would 

be “sufficient to perform accident assessment and [to] evaluate potential onsite and offsite 

environmental consequences of an emergency at [the] Lee Nuclear Station.”149 The Staff also 

noted that use of the consolidated EOF enables “commonality of communication and interface 

 

146 Ex. DEC-006, Duke Safety Presentation, at 5. 

147 Ex. NRC-011D, Emergency Plan, at A9-7. 

148 “Centralized Emergency Operations Facilities and Combined License Applications,” 

Commission Paper SECY-10-0078 (June 16, 2010), at 3 (ML091970250); see also Ex. NRC013, Staff Safety Presentation, at 15-16; Tr. at 95 (Mr. Thomas). 

149 Ex. NRC-009-R, FSER at 13-60 to 13-61. 
- 31 -

with offsite officials and liaisons.”150 Regarding Duke’s proposed near-site facility in Kings 

Mountain, North Carolina, the Staff testified that the facility has “everything that the staff would 

need”—including integrated communication systems and adequate space for the NRC and 

other emergency responders.151

A proposed license condition would require Duke to demonstrate, prior to fuel load, “the 

integrated capability and functionality of the EOF for activation and operation of the facility to 

respond to emergency events at both the [Lee Nuclear Station] and one additional nuclear 

facility that is supported by the EOF.”152 Additionally, the draft combined licenses include ITAAC 

that will require Duke to demonstrate the functionality of the EOF prior to fuel load.153 The Staff 

concluded that the information that Duke provided for the consolidated EOF meets the NRC’s 

emergency planning requirements, subject to completion of the ITAAC and satisfaction of the 

license condition, and the Staff recommends that we approve Duke’s request.154

The ACRS reviewed Duke’s request to consolidate the EOF for the Lee Nuclear Station 

and likewise recommends approval.155 The ACRS reasoned that “[t]he distance from the Lee 

site to the common EOF is not excessive,” and also noted Duke’s proposed near-site facility in 

 

150 Id. at 13-61. 

151 Tr. at 110 (Mr. Hughes). 

152 NRC-009-R, FSER at 13-63. 

153 See Ex. NRC-002, Draft Combined License—Unit 1, at C-18 to C-19; Ex. NRC-003, Draft 

Combined License—Unit 2, at C-18 to C-19; Ex. NRC-011H, License Conditions and ITAAC, tbl. 

3.8-1; Tr. at 95-96 (Mr. Thomas). 

154 NRC-009-R, FSER at 13-63; Tr. at 95-96 (Mr. Thomas). 

155 See 2015 ACRS Letter at 1, 4. 
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Kings Mountain, North Carolina.156 The ACRS based its recommendation “on the advantages 

provided by use of a common EOF . . . with the resources necessary to support more than a 

single site.”157

Before the hearing, we asked Duke and the Staff to address several questions related to 

emergency preparedness, including the proposed consolidated EOF. Among other things, we 

asked the parties to discuss the capability of the EOF to handle a common event across 

multiple sites and the potential need for changes to the EOF to meet any AP1000-specific 

requirements for the Lee Nuclear Station.158 We also asked about the potential need for 

additional training to accommodate the Lee site, whether it be related to addressing a common 

event at facilities with different reactor designs, or, more specifically, training related to the 

AP1000 design for members of the EOF staff.159 We further explored this issue at the hearing; 

the parties discussed EOF staff training and the potential advantages and disadvantages of 

using the Charlotte EOF for the Lee Nuclear Station.160

Duke explained that “[k]ey positions of EOF staff that include the EOF Director, Assistant 

EOF Director, and Accident Assessment Manager are required to take training to cover multiple 

technologies,”161 which will include the AP1000 and will be focused particularly on mitigating 

 

156 Id. at 4. 

157 Id.

158 Pre-Hearing Questions Order at 3-4. 

159 Id.

160 See, e.g., Tr. at 96-97 (Commissioner Baran); id. at 109-10 (Chairman Burns); id. at 112 

(Commissioner Svinicki). 

161 Ex. DEC-003, Duke Pre-Hearing Responses, at 6. 
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beyond-design-basis events.162 Duke also stated that it will expand its training program for 

multi-site event response to include the Lee site.163 In addition, Duke explained that the only 

changes necessary to the Charlotte EOF would be to display site and plant parameters from the 

Lee units, and Duke listed relevant ITAAC that will ensure that AP1000 technology and data 

specific to the Lee Nuclear Station are addressed in the EOF.164

Duke represented that it is also possible that some of the other staff at its corporate 

office would be trained in AP1000 technology or have familiarity with the Lee Nuclear Station 

site and would be available to staff the EOF.165 Duke stated, however, that it was less important 

for staff beyond key EOF positions to be trained in AP1000 technology because the EOF’s 

function for accident mitigation is for coordination and other “bigger-picture aspects” of accident 

response, whereas staff at the nuclear power plant site in the OSCs, TSC, and the control 

room—individuals with experience at the site—would be directing the tactical response to the 

event.166 The Staff explained that it found Duke’s plan to provide AP1000-specific training to the 

EOF Director, Assistant EOF Director, and Accident Assessment Manager “adequate to fulfill 

the EOF mission and to ensure that supervisors are able to direct the [Emergency Response 

Organization] members in the performance of their duties.”167

 

162 Tr. at 97-98 (Mr. Kitchen); Ex. DEC-003, Duke Pre-Hearing Responses, at 6. 

163 Ex. DEC-003, Duke Pre-Hearing Responses, at 6. 

164 Id. at 6-7. 

165 Ex. DEC-012, Duke Energy Carolinas’ Response to Post-Hearing Question (Oct. 20, 2016), 

at 2 (Duke Post-Hearing Responses); Tr. at 97-98 (Mr. Kitchen). 

166 Tr. at 99-100 (Mr. Kitchen). 

167 Ex. NRC-015, Staff Post-Hearing Responses, at 2. 
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The Staff also noted that job and task analyses for staffing the Emergency Response 

Organization, once developed, will help determine whether additional AP1000-specific training 

is necessary.168 The Staff stated that these job tasks and analyses are not required at this time; 

they will be completed in preparation for the full participation exercise that will be conducted at 

the Lee Nuclear Station prior to fuel load.169 The Staff explained that it will verify the adequacy 

of Duke’s training program by inspecting Duke’s ability to adequately perform designated 

Emergency Response Organization functions during the required exercise described in the 

emergency preparedness ITAAC and subsequent biennial exercises if the NRC later makes the 

finding required by 10 C.F.R. § 52.103(g) allowing operation of the facility.170 According to the 

Staff, its inspections “will verify, initially and continuously, whether key EOF positions, such as 

the EOF Director, Assistant Director, and Accident Assessment Manager, and any other EOF 

personnel identified based on job and task analyses, are receiving adequate AP1000-specific 

training to perform their designated emergency plan functions.”171

We also asked whether an expansion of the Charlotte EOF might become necessary 

depending on the number of plants added to the facility.172 Duke stated that a physical 

expansion of the facility was not planned for the addition of the Lee Nuclear Station.173 Duke 

 

168 Id.

169 Id.; see supra note 134. 

170 Ex. NRC-015, Staff Post-Hearing Responses, at 2; see 10 C.F.R. § 52.103(g) (stating that 

operation of the facility is not permitted until the Commission finds that the acceptance criteria in 

the combined licenses are met). 

171 Ex. NRC-015, Staff Post-Hearing Responses, at 2. 

172 Tr. at 114-15 (Commissioner Svinicki). 

173 Id. at 115 (Mr. Kitchen). 
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further asserted that computer capability and the ability to display data, rather than strictly floor 

space, are the important considerations.174 For its part, the Staff stated that the most important 

aspect of the issue is not the number of plants added to the Charlotte facility but rather the 

advantage afforded by the location of the EOF in relation to the plants in two states, South 

Carolina and North Carolina, where most of the emergency responders would be the same for 

Lee as for the existing units and would therefore be familiar with the Charlotte EOF.175 But the 

Staff explained that any recommendation to the Commission on EOF consolidation is made on 

a case-by-case basis.176

B. Environmental Issues 

1. Make-Up Pond C 

When it filed its combined license application in 2007, Duke proposed to use Make-Up 

Ponds A and B for the Lee Nuclear Station’s operational water requirements.177 The two water 

impoundments were created during the construction phase of the cancelled Cherokee project.178 

Make-Up Pond A draws water from the Ninety-Nine Islands Reservoir—the water source for the 

Ninety-Nine Islands Hydroelectric Project; the Hydroelectric Project and the reservoir are under 

 

174 Id. (Mr. Kitchen). 

175 See id. at 116-17 (Mr. Barss). South Carolina and North Carolina acknowledged their 

support for the Charlotte EOF location in their letters certifying their agreement with Duke’s 

Emergency Plan for the Lee Nuclear Station. Ex. NRC-009-R, FSER at 13-60. 

176 Id. at 116-17 (Mr. Barss). 

177 Ex. NRC-001, Staff Information Paper, at 22; Ex. NRC-010, Final EIS at 2-6. 

178 Ex. NRC-001, Staff Information Paper, at 22. 
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the jurisdiction of the Federal Energy Regulatory Commission (FERC).179 Make-Up Pond B was 

formed by an impoundment of McKowns Creek.180 Make-Up Ponds A and B are now 

jurisdictional waters of the United States under the jurisdiction of the Corps.181 Duke planned to 

use water from Make-Up Pond A more than ninety-five percent of the time and to use Make-Up 

Pond B during low flow conditions.182

In 2007 and 2008, the region surrounding the Lee site experienced a severe drought.183 

The Staff noted that water data from these drought years had not been included in Duke’s 

combined license application.184 The drought raised concerns that a severe, long-term drought 

could affect the reliability of the Lee Nuclear Station as a source of baseload power.185 In 

addition, the Staff “determined that low water flows at certain times of the year would have 

resulted in adverse impacts to aquatic biota and downstream water users.”186

 

179 Id.; Ex. NRC-010, Final EIS at 2-24. Duke operates the Ninety-Nine Islands Hydroelectric 

Project. Ex. NRC-010, Final EIS at 2-24. 

180 Ex. NRC-010, Final EIS at 2-6. 

181 Id. at 2-42. 

182 Ex. NRC-001, Staff Information Paper, at 23; Ex. NRC-014-R, Staff Environmental 

Presentation, at 3; Tr. at 125-26 (Ms. Vokoun). 

183 See Tr. at 121-22 (Mr. Snead). 

184 Ex. NRC-014-R, Staff Environmental Presentation, at 4; Tr. at 126 (Ms. Vokoun). 

185 Ex. NRC-010, Final EIS at 3-8 to 3-9; Tr. at 126 (Ms. Vokoun). Commenters at the scoping 

sessions and commenters on the Draft EIS expressed concern about water availability and 

potential droughts. See Tr. at 81 (Mr. Akstulewicz); Ex. NRC-010, Final EIS, apps. D-E. 

186 Tr. at 126 (Ms. Vokoun). 
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Duke revised its water balance calculations to include the 2007 and 2008 drought 

years.187 Thereafter, Duke proposed to build Make-Up Pond C, an offsite reservoir that would 

be used for supplemental cooling water as a drought contingency to minimize the need to shut 

down the plant during low river flow conditions.188 With Make-Up Ponds A, B, and C providing 

cooling water to the plant, Duke also plans to use a closed-cycle wet cooling system with 

mechanical draft cooling towers to transfer waste heat to the atmosphere.189

Duke filed a supplement to its application to include Make-Up Pond C in September 

2009, and the Staff held additional public scoping meetings in the spring and summer of 

2010.190 As proposed, the “Make-Up Pond C site encompasses approximately 2110 ac[res] and 

is located northwest of the Lee Nuclear Station on the London Creek watershed.”191 

Approximately 3.16 miles of London Creek would be dammed to create Make-Up Pond C.192 Of 

the total proposed site acreage, approximately 643 acres would be used for “Make-Up Pond C 

itself, including the impoundment, dam footprint, saddle dikes, and spillway.”193 An additional 

404 acres would be used “for other elements of Make-Up Pond C, including spoils placement 

areas, vegetation maintenance areas, and various roads, transmission lines, and ancillary 

 

187 Id. (Ms. Vokoun). 

188 Id. at 122 (Mr. Snead). 

189 Ex. NRC-010, Final EIS at xxxiii, 3-50, 9-207. A portion of the water will be returned through 

a discharge structure on the Broad River upstream of the Ninety-Nine Islands Dam; the 

remaining water will be released to the atmosphere via evaporative cooling. Id. at xxxiii. 

190 Ex. DEC-007, Duke Environmental Presentation, at 4; Ex. NRC-010, Final EIS at 1-5. 

191 Ex. NRC-010, Final EIS at 2-9. 

192 Id. at 2-17. 

193 Id. at 2-11. 
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[support] facilities.”194 At the hearing, the Staff discussed its analysis of the environmental 

impacts of the construction and use of Make-Up Pond C, measures to mitigate these impacts, 

and the Staff’s consideration of alternative technologies for plant cooling.195 We asked a 

number of questions to evaluate the sufficiency of the Staff’s review in this area.196

The Staff determined that creation of Make-Up Pond C would “inundate most of the 

London Creek stream network and forested valley,” impacting approximately 12.5 miles of 

streams, 3.5 acres of wetlands, and 17.5 acres of open water, turning the existing creek system 

into a deep water lake habitat.197 The Staff also found that the terrestrial impacts of the 

proposal would include loss of habitat and wildlife mortality that “would be substantial and 

mostly permanent in nature.”198 Additionally, the Staff determined that building “Make-Up Pond 

C would alter the functionality of the London Creek corridor as a wildlife travel corridor, 

particularly for some migrant songbirds, many of which are conservation priority in South 

Carolina.”199 For aquatic impacts, the Staff determined that there would be “a clearly noticeable 

and permanent change in aquatic resources to London Creek and its tributaries.”200 

Accordingly, the Staff considered the impacts to aquatic and terrestrial resources to be 

“moderate,” because “[t]he impacts would noticeably alter these resources, but the important 

 

194 Id.

195 See Tr. at 124-36; Ex. NRC-014-R, Staff Environmental Presentation, at 3-13. 

196 Pre-Hearing Questions Order at 7-11, 15; Tr. at 139-41, 143-49. 

197 Tr. at 130, 132 (Ms. Vokoun). 

198 Id. at 131 (Ms. Vokoun). 

199 Id. (Ms. Vokoun). 

200 Id. at 132 (Ms. Vokoun). 
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aspects of these attributes would not be destabilized as habitat and wildlife resources found in 

the London Creek watershed are also found in other areas of the surrounding upstate Piedmont 

Region.”201

To determine whether these impacts could be minimized or avoided, the Staff 

considered alternative ways to address a potential water shortage.202 The Staff “evaluated 

water storage options, other pond locations[,] and other cooling system designs,” but focused on 

a hybrid-cooling-technology option because the Staff found that to be “the alternative with the 

best potential to eliminate entirely or reduce the size of Make-Up Pond C.”203 Hybrid cooling 

uses a combination of wet and dry cooling towers to reduce water use.204 Although this design 

has never been used to cool nuclear or fossil fuel plants the size of the proposed Lee Nuclear 

Station and it “poses several significant technical challenges for its installation and operation,” 

the Staff concluded that it would be feasible for the Lee Nuclear Station site.205 Nevertheless, 

the Staff determined that the hybrid system “would not eliminate the need for Make-Up Pond C” 

and therefore concluded that it “would not be an environmentally preferable alternative.”206 After 

 

201 Id. (Ms. Vokoun); see Ex. NRC-015, Staff Post-Hearing Responses, at 3 (clarifying that the 

Staff’s “moderate” finding did not depend on the consideration of proposed mitigation 

measures). 

202 See Tr. at 127-28 (Mr. Vail). 

203 Id. at 128 (Mr. Vail). 

204 Id. (Mr. Vail). 

205 Ex. NRC-010, Final EIS at 9-210; see also Tr. at 128 (Mr. Vail). 

206 Tr. at 129-30 (Mr. Vail); see also Ex. NRC-010, Final EIS at 9-210; Ex. NRC-014-R, Staff 

Environmental Presentation, at 7. 
- 40 -

its consideration of alternative water storage options, the Staff concluded that Make-Up Pond C 

would be necessary for supplemental cooling.207

The Staff also considered other measures to mitigate the environmental impacts of the 

project. The Final EIS includes a discussion of various mitigation approaches, such as 

implementation of best management practices for erosion control and implementation of a 

stormwater pollution prevention plan.208 One approach developed as part of Duke’s permit 

application with the Corps under section 404 of the Clean Water Act was a compensatory 

mitigation plan to offset the unavoidable impacts on jurisdictional waters of the United States 

from Make-Up Pond C, which Duke plans to pursue if it completes the project.209 In addition to 

purchasing mitigation credits,210 “Duke plans to accomplish a stream restoration and 

preservation effort at two separate locations, the privately owned Turkey Creek Tract and the 

Woods Ferry Study Area in the Sumter National Forest.”211 For the Woods Ferry Study Area, 

the goal will be to “reconnect streams to their respective flood plains, . . . reduce sedimentation 

and stabilize stream banks, . . . improve in-stream and adjacent habitats[,] and . . . improve 

 

207 Ex. NRC-014-R, Staff Environmental Presentation, at 7. 

208 See, e.g., Ex. NRC-010, Final EIS tbl.10-1. 

209 See id. at 4-54; Tr. at 132-33 (Ms. Vokoun). 

210 Ex. NRC-010, Final EIS at 4-56. 

211 Tr. at 133 (Ms. Vokoun). Duke selected these locations as part of an outreach effort with 

governmental and non-governmental stakeholder organizations. Ex. NRC-010, Final EIS at 

4-55 to 4-56. 
- 41 -

water quality.”212 Duke will provide preservation and buffer enhancement at the Turkey Creek 

Tract.213

The Woods Ferry project required a Special Use Permit from the United States Forest 

Service. In accordance with NEPA, the Forest Service prepared an Environmental Impact 

Statement to support the permit action.214 The Forest Service has issued its record of decision, 

and the Staff anticipates that it will issue the Special Use Permit.215 The Corps issued its record 

of decision and a Section 404 Permit for the Lee Nuclear Station in 2015.216 The Staff stated 

that “[t]he mitigation measures and requirements ultimately [to be] imposed by the Forest 

Service and the Corps . . . are consistent with the analysis and conclusions in the . . . [Final] 

EIS.”217 Although the Staff found that restoration efforts under the compensatory mitigation plan 

“are expected to mitigate the environmental impacts of Make-Up Pond C,” the Staff determined 

that “impacts to the resource[] areas would remain moderate, given that the stream ecosystem 

[at the Make-Up Pond C site] will be removed.”218

 

 

212 Tr. at 133 (Ms. Vokoun); see also Ex. NRC-010, Final EIS at 4-56, 4-58. 

213 Ex. NRC-010, Final EIS at 4-58. 

214 Tr. at 134 (Ms. Vokoun). 

215 Id. (Ms. Vokoun). 

216 Id. (Ms. Vokoun); Ex. NRC-007, Staff Pre-Hearing Responses, at 23. 

217 Tr. at 134-35 (Ms. Vokoun). 

218 Id. at 133-34 (Ms. Vokoun). 
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2. Alternative Sites 

As part of its environmental review, the Staff assessed Duke’s process for selecting the 

Lee site.219 Duke first established the region of interest, the “geographic area considered in 

searching for potential and candidate sites.”220 Duke defined its region of interest consistent 

with its franchised service area.221 Within this area, Duke selected six candidate sites—“two in 

North Carolina, three in South Carolina, and one that extended across both States”—based on 

their “seismic [characteristics]/geology, population density, water availability, dedicated land 

use, regional ecological features, proximity to high-voltage transmission and load centers, and 

access to rail lines.”222 After additional screening of the candidate sites, Duke identified the Lee 

Nuclear Station site as the proposed site and identified three alternative sites: (1) the Perkins 

site in Davie County, North Carolina; (2) the Keowee site, adjacent to the Oconee Nuclear 

Station, in Oconee County, South Carolina; and (3) the Middleton Shoals site in Anderson 

County, South Carolina.223 The three alternative sites are considered greenfield sites.224

The Staff performed an independent analysis of Duke’s site selection process and 

concluded that it was reasonable.225 In addition, the Staff reviewed each of the alternative sites 

 

219 See Ex. NRC-010, Final EIS § 9.3. 

220 “Environmental Standard Review Plan,” NUREG-1555 (July 2007) § 9.3, at 9.3-1 

(ML071800223); see Ex. NRC-010, Final EIS § 9.3.1. 

221 Ex. NRC-010, Final EIS at 9-42. 

222 Id. at 9-43. 

223 Id. at 9-45. 

224 Id. The Lee site is considered previously disturbed by virtue of the construction activity 

associated with the cancelled Cherokee project. See id. at 2-5, 3-3. 

225 Id. at 9-42, 9-45. 
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to determine if any were environmentally preferable to the Lee site.226 The Staff visited each of 

the three alternative sites and its analysis includes the information it collected from these visits, 

in addition to information from Duke and other federal and state agencies.227

The Perkins site is wholly owned by Duke and was previously characterized when the 

site was selected for the proposed Perkins Nuclear Station in the 1970s.228 It is currently 

maintained as forested land by the North Carolina Wildlife Resources Commission and would 

“require extensive grading and cut-fill activities to support a two-unit nuclear power facility.”229 

The Keowee site also is wholly owned by Duke and is maintained as forested land.230 Because 

it is adjacent to the Oconee Nuclear Station, it “would share many of the same resources and 

services.”231 To support two new nuclear units, the Keowee site “would require extensive 

grading and the development of an offsite supplemental water reservoir.”232 The Middleton 

Shoals site is located on the eastern bank of the Savannah River, near Lake Russell.233 Like 

the Perkins and Keowee sites, the Middleton Shoals site has been maintained as forested land, 

 

226 Id. at 9-203. 

227 Id. at 9-45. 

228 Id. at 9-47, 9-54. The Perkins nuclear project was cancelled before a decision was made on 

the construction permit. See Duke Power Co. (Perkins Nuclear Station, Units 1, 2, and 3), 

ALAB-668, 15 NRC 450, 451-52 (1982). 

229 Ex. NRC-010, Final EIS at 9-54. 

230 Id. at 9-104. 

231 Id. at 9-95. 

232 Id. at 9-106. 

233 Id. at 9-159, 9-177. 
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and it “would require extensive grading and cut-fill activities to support a two-unit nuclear power 

facility.”234

For each of these sites, the Staff evaluated impacts associated with land use, water use 

and quality, terrestrial and wetland resources, aquatic resources, socioeconomics, 

environmental justice, historic and cultural resources, air quality, non-radiological health 

impacts, radiological health impacts from normal operations, and postulated accidents.235 

Comparing its analysis of the three alternative sites with the proposed Lee site, the Staff found 

the environmental impacts “generally comparable.”236 Since no alternative site was 

environmentally preferable to the Lee site, the Staff concluded that none of the alternative sites 

would be “obviously superior” to the Lee site.237

3. Staff Non-Concurrence Associated with the General License to Construct an 

Independent Spent Fuel Storage Installation 

During the Staff’s environmental review, a non-concurrence was filed by members of the 

Staff working on the review.238 The non-concurrence related to whether additional steps were 

warranted under NEPA, the NHPA, and the Endangered Species Act, in view of the possibility 

 

234 Id. at 9-159. 

235 See id. §§ 9.3.3 to 9.3.5. 

236 Id. at 9-206. 

237 Id. at 9-203, 9-206. 

238 The non-concurrence, NCP-2016-007, which is not publicly available, was attached to the 

Staff’s Information Paper. A substantively similar non-concurrence was filed during the review 

of the combined license application for the Levy Nuclear Plant and was addressed as part of 

that review. See Ex. NRC-001, Staff Information Paper, at 32; Levy, CLI-16-16, 84 NRC at __ 

(slip op. at 38-39). 
- 45 -

that an independent spent fuel storage installation (ISFSI) could be constructed on the site at 

some future time.239

In response to a pre-hearing question, the Staff stated that it met the requirements for 

consultation under the NHPA because it consulted on the entirety of the Lee Nuclear Station 

site.240 In January 2012, the South Carolina State Historic Preservation Officer (SHPO) 

informed the Staff that it had determined that the project, including the new units, “Make-Up 

Pond C, railroad spur, and transmission line corridors would cause no adverse effect on . . . 

identified historic properties if conditions were met” under the Cultural Resource Management 

Plan and Memorandum of Agreement between the SHPO, Duke, the Catawba Indian Nation, 

and the Corps.241 The Staff explained that although it “did not explicitly discuss with the SHPO 

and Tribes the issuance of a general license,” it referenced relevant information about the 

general license in the consultation record.242 For example, the Staff noted that the Final EIS 

references an analysis in the Generic Environmental Impact Statement for License Renewal 

“that supports a conclusion that the impacts of building and operating an ISFSI on the site would 

be minor.”243 Nonetheless, the Staff notified the South Carolina SHPO in a follow-up phone call 

 

239 NRC regulations grant a general license to construct and operate an ISFSI to certain 

licensees, including combined license holders. The non-concurrence centered on the concern 

that the consultations on the project did not include a specific discussion that an ISFSI 

potentially could be constructed onsite under the general license. Ex. NRC-001, Staff 

Information Paper, at 32; Ex. NRC-007, Staff Pre-Hearing Responses, at 27-28; see 10 C.F.R. 

§ 72.210. 

240 Ex. NRC-007, Staff Pre-Hearing Responses, at 27. 

241 Id.; Ex. NRC-010, Final EIS at I-4 to I-5. 

242 Ex. NRC-007, Staff Pre-Hearing Responses, at 27. 

243 Id.
- 46 -

in July 2016 that issuance of a combined license includes authorization to construct and operate 

an ISFSI; the Staff represented that the SHPO expressed no concerns.244

According to the Staff, its conclusion that construction of the ISFSI would not contribute 

to adverse effects “is further reinforced by the provision in the [Cultural Resource Management 

Plan and Memorandum of Agreement] and Duke’s corporate procedures,” which require Duke 

“to stop work and coordinate with the SHPO if it inadvertently discovers cultural or historic 

objects on the site.”245 Additionally, the Staff explained that if Duke constructs an ISFSI at the 

Lee site, not only would historic and cultural resources be protected through the Memorandum 

of Agreement and the associated Cultural Resource Management Plan, but also through 

conditions in the Section 404 Permit from the Corps and the combined licenses.246 The Staff 

also noted that the Section 401 Clean Water Act Certification from the State of South Carolina 

includes two permit conditions related to inadvertent discovery of archeological or 

paleontological resources.247 The Staff advised that the non-concurring staff ultimately 

concurred in the Staff’s review.248

C. Findings 

With regard to Duke’s request to consolidate the EOF for the Lee Nuclear Station with its 

existing EOF for the McGuire, Catawba, and Oconee plants in Charlotte, North Carolina, we find 

 

244 Id.

245 Id. (citing Ex. NRC-010, Final EIS at 4-111). 

246 Id. at 27-28. 

247 Id. at 28. 

248 Ex. NRC-001, Staff Information Paper, at 32. 
- 47 -

that Duke has satisfied the requirements in 10 C.F.R. Part 50, Appendix E, section IV.E.8. 

Duke has shown that, from the Charlotte EOF, “effective direction can be given and effective 

control can be exercised during an emergency” at the Lee Nuclear Station.249 Further, in 

accordance with section IV.E.8.b, Duke has made provision for a near-site facility—the Kings 

Mountain Facility—that will provide adequate space, supplies, and data and communications 

capability to support the NRC and other emergency responders so that they may “interact faceto-face with emergency response personnel entering and leaving the . . . [Lee] site.”250 We find 

that the proposed license condition and the ITAAC associated with the consolidated EOF are 

appropriately drawn to ensure the functionality of the EOF with respect to the Lee site.251 

Therefore, we approve Duke’s request to consolidate the Lee EOF with its existing facility in 

Charlotte, North Carolina. 

With regard to our findings for issuance of the combined licenses, we have conducted an 

independent review of the sufficiency of the Staff’s safety findings, with particular attention to the 

topics discussed above. Our findings, however, are based on the entire record. Based on the 

evidence presented in the uncontested hearing, including the Staff’s review documents and the 

testimony provided, we find that the applicable standards and requirements of the AEA and 

NRC regulations have been met. The required notifications to other agencies or bodies have 

been duly made.252 We find that Duke is technically and financially qualified to engage in the 

 

249 10 C.F.R. pt. 50, app. E, IV.E.8.a(i); see, e.g., Ex. NRC-011D, Emergency Plan, app. 9. 

250 10 C.F.R. pt. 50, app. E, IV.E.8.b; see, e.g., Ex. DEC-006, Duke Safety Presentation, at 5-6. 

251 See, e.g., Ex. NRC-009-R, FSER at 13-60 to 13-63; Tr. at 95-96 (Mr. Thomas). 

252 The Staff notified the Public Service Commission of South Carolina, the North Carolina 

Utilities Commission, and FERC about the combined license application in December 2011. Ex. 

NRC-001, Staff Information Paper, at 25-26. The Staff published notices of the application in 
- 48 -

activities authorized. We further find that there is reasonable assurance that the facility will be 

constructed and operated in conformity with the licenses, the provisions of the AEA, and the 

NRC’s regulations and that issuance of the licenses will not be inimical to the common defense 

and security or to the health and safety of the public. In addition, we find that the proposed 

regulatory exemptions meet the standards in 10 C.F.R. § 50.12. And finally, we find that the 

proposed license conditions are appropriately drawn and sufficient to provide reasonable 

assurance of adequate protection of public health and safety. 

We also conducted an independent review of the Staff’s environmental analysis in the 

Final EIS, taking into account the particular requirements of NEPA. NEPA section 102(2)(A) 

requires agencies to use “a systematic, interdisciplinary approach which will insure the 

integrated use of the natural and social sciences and the environmental design arts” in decisionmaking that may impact the environment.253 We find that the environmental review team used 

the systematic, interdisciplinary approach that NEPA requires.254

NEPA section 102(2)(C) requires us to assess the relationship between short-term uses 

and long-term productivity of the environment, to consider alternatives, and to describe the 

unavoidable adverse environmental impacts and the irreversible and irretrievable commitments 

 

the Federal Register on November 18, 2011, November 25, 2011, December 2, 2011, and 

December 9, 2011 (at 76 Fed. Reg. 71,608; 76 Fed. Reg. 72,725; 76 Fed. Reg. 75,566; and 76 

Fed. Reg. 77,021, respectively). Ex. NRC-001, Staff Information Paper, at 26. 

253 42 U.S.C. § 4332(2)(A). 

254 See, e.g., Tr. at 58-62 (Mr. Lee) (providing an overview of the Staff’s environmental review 

methodology); Ex. NRC-012, Staff Overview Presentation, at 9-13. The environmental review 

team consisted of individuals with expertise in disciplines including ecology, geology, hydrology, 

radiological health, socioeconomics, and cultural resources. Ex. NRC-010, Final EIS, app. A. 

The team consisted of individuals from the NRC and the Corps. Id.
- 49 -

of resources associated with the proposed action.255 The discussion of alternatives is in 

Chapter 9 of the Final EIS; the other items are discussed in Chapter 10.256 The review team 

found the principal short-term benefit of the project to be the production of electrical energy.257 

The review team also found that the economic productivity of the site would be much greater 

hosting the reactors than it would if used for agriculture, mining, or other probable uses for the 

site.258 With regard to long-term productivity, the review team noted that there would be an 

impact if the plant were not immediately dismantled at the end of operation, but the team found 

that “the enhancement of regional productivity resulting from electrical-energy production by the 

plant is expected to result in a correspondingly large increase in regional long-term productivity 

that would not be equaled by other long-term uses of the site.”259

NEPA section 102(2)(E) calls for agencies to study, develop, and describe appropriate 

alternatives.260 The alternatives analysis is the “heart of the environmental impact statement.”261 

Based on the discussion in the Final EIS, the Staff’s testimony, and its responses to pre-hearing 

questions, we find that the Staff identified an appropriate range of alternatives with respect to 

alternative power sources, alternative sites, and alternative system designs and adequately 

 

255 42 U.S.C. § 4332(2)(C)(ii)-(v). 

256 Ex. NRC-010, Final EIS, chs. 9-10. 

257 Id. at 10-16. 

258 Id.

259 Id. The review team also noted that “most long-term impacts resulting from land-use 

preemption by plant structures can be eliminated by removing these structures or by converting 

them to other productive uses.” Id.

260 42 U.S.C. § 4332(2)(E). 

261 10 C.F.R. pt. 51, app. A, § 5. 
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described the environmental impacts of each alternative.262 We find reasonable the Staff’s 

conclusion that none of the alternatives considered is environmentally preferable to the 

proposed action.263

Chapter 10 of the Final EIS includes tables listing the unavoidable adverse 

environmental impacts during preconstruction, construction, and operation, along with actions to 

mitigate those impacts.264 The review team found that the unavoidable impacts during 

preconstruction and construction would be small for the following resource areas: water use, 

water quality, demography, economic impacts on the community, environmental justice, air 

quality, non-radiological health, radiological health, and nonradioactive waste.265 The 

preconstruction and construction impacts for land use, terrestrial and aquatic ecology, physical 

resources, and historic and cultural resources would be moderate, but when considering NRCauthorized construction activities only, the impacts would be small.266 The preconstruction and 

construction impacts to infrastructure and community services would be moderate for traffic 

impacts; all other infrastructure and community service impacts would be small.267 For 

operation, the review team found that the unavoidable adverse impacts would be small for all 

resource areas.268

 

262 See, e.g., Tr. at 150-51; Ex. NRC-010, Final EIS, ch. 9. 

263 See, e.g., Ex. NRC-010, Final EIS at 10-20 to 10-21. 

264 Id. tbls.10-1 & 10-2. 

265 Id. tbl.10-1. 

266 Id.

267 Id.

268 Id. tbl.10-2. 
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Finally, with regard to irreversible and irretrievable commitments of resources, the review 

team concluded that disposal of radioactive and nonradioactive wastes would require an 

irreversible commitment of land and that over 24,600 gallons per minute of cooling water would 

be lost through evaporation during operation.269 There would be some losses to terrestrial biota 

at the site—“[o]f particular note, the loss of habitat at Make-Up Pond C would permanently 

reduce wildlife populations in the London Creek watershed and the functionality of the 

watershed as a wildlife travel corridor.”270 With respect to aquatic biota, the review team found 

that preconstruction and construction activities “would result in a permanent change to an 

estimated 9.37 ac[res] of open water on the Lee Nuclear Station site” and that “[b]uilding MakeUp Pond C would result in permanent effects on an estimated 17.58 ac[res] of open water and 

64,911 linear [feet] of stream offsite.”271 Additionally, the review team concluded that “[b]uilding 

Make-Up Pond C would fundamentally alter the physical and biological characteristics of 

London Creek, a tributary to the Broad River.”272 According to the review team, building MakeUp Pond C also will result in the permanent alteration of historic and cultural resources—

specifically, “[t]he Service Family Cemetery would be relocated prior to impoundment of London 

Creek and inundation of the Make-Up Pond C area, permanently altering the cultural setting of 

 

269 Id. at 10-17. 

270 Id. at 10-18. 

271 Id.

272 Id.
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this cultural resource and its relationship to regional history, settlement patterns, and the 

historical uses of the land.”273

During construction of the plant, the review team concluded that the materials used, 

“while irretrievable, would be of small consequence with respect to the availability of such 

resources.”274 And with regard to operation of the proposed units, the review team determined 

that uranium would be irretrievably committed, but the amount would be negligible in 

comparison to the availability of uranium ore and existing stockpiles of highly enriched uranium 

in the United States and Russia that could be processed into fuel.275

We must weigh these unavoidable adverse environmental impacts and resource 

commitments—the environmental “costs” of the project—against the project’s benefits.276 

Considering the need for power in the region and the expected increase in productivity, jobs, 

and tax revenue as described in the hearing and in the Final EIS, we find that the benefits of the 

project outweigh the costs described above. Moreover, we have considered each of the 

requirements of NEPA section 102(2)(C) and find nothing in the record that would contradict the 

Staff’s conclusions on those requirements. 

In sum, for each of the environmental topics discussed at the hearing and in this 

decision, we find that the Staff’s review was reasonably supported in logic and fact and 

sufficient to support the Staff’s conclusions. Based on our review, we also find that the 

 

273 Id. at 10-19. 

274 Id.

275 Id. at 10-19 to 10-20. 

276 10 C.F.R. § 51.107(a). 
- 53 -

remainder of the Final EIS was reasonably supported and sufficient to support the Staff’s 

conclusions. 

Therefore, as a result of our review of the Final EIS, and in accordance with the Notice 

of Hearing for this uncontested proceeding, we find that the requirements of NEPA section 

102(2)(A), (C), and (E), and the applicable regulations in 10 C.F.R. Part 51, have been satisfied 

with respect to the combined license application. We independently considered the final 

balance among conflicting factors contained in the record of this proceeding. We find, after 

weighing the environmental, economic, technical, and other benefits against environmental and 

other costs, and considering reasonable alternatives, that the combined licenses should be 

issued. 

III. CONCLUSION 

We find that the Staff’s review of Duke’s combined license application was sufficient to 

support the findings in 10 C.F.R. §§ 52.97(a) and 51.107(a). We approve Duke’s request to 

consolidate the Lee EOF with the existing EOF at its corporate headquarters in Charlotte, North 

Carolina. We authorize the Director of the Office of New Reactors to issue the combined 

licenses for the construction and operation of William States Lee III Nuclear Station, Units 1 and 

2. And finally, we authorize the Staff to issue the record of decision. 

IT IS SO ORDERED. 

 For the Commission 

NRC SEAL /RA/ 

 ________________________ 

 Annette L. Vietti-Cook 

 Secretary of the Commission 

Dated at Rockville, Maryland, 

this 15th day of December 2016. 
UNITED STATES OF AMERICA 

NUCLEAR REGULATORY COMMISSION 

In the Matter of ) 

 ) 

DUKE ENERGY CAROLINAS, LLC ) Docket Nos. 52-018-COL 

 ) 52-019-COL 

(William States Lee III Nuclear Station ) 

 Units 1 and 2) ) 

 ) 

(Mandatory Hearing) ) 

 

CERTIFICATE OF SERVICE 

I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER 

(CLI-16-19) have been served upon the following persons by Electronic Information Exchange. 

Office of Commission Appellate 

 Adjudication 

U.S. Nuclear Regulatory Commission 

Mail Stop: O-7H4 

Washington, DC 20555-0001 

E-mail: ocaamail@nrc.gov

U.S. Nuclear Regulatory Commission 

Office of the Secretary of the Commission 

Mail Stop O-4F00 

Washington, DC 20555-0001 

E-mail: hearingdocket@nrc.gov

U.S. Nuclear Regulatory Commission 

Office of the General Counsel 

Mail Stop - O-14A44 

Washington, DC 20555-0001 

Megan Wright, Esq. 

Anita Ghosh, Esq. 

Marcia Carpentier, Esq. 

Ian Irvin, Esq. 

Garrett Henderson, Esq. 

Patrick Moulding, Esq. 

E-mail: megan.wright@nrc.gov 

 anita.ghosh@nrc.gov

 marcia.carpentier@nrc.gov

 ian.irvin@nrc.gov

 garrett.henderson@nrc.gov

 patrick.moulding@nrc.gov

Duke Energy Corporation 

526 South Church Street – EC07H 

Charlotte, NC 28202 

Kate Barber Nolan, Assistant General Counsel 

E-mail: kbnolan@duke-energy.com

Pillsbury Winthrop Shaw Pittman, LLP 

1200 Seventeenth Street NW 

Washington, DC 20036 

David R. Lewis, Esq. 

Anne Leidich, Esq. 

E-mail: david.lewis@pillsburylaw.com

 anne.leidich@pillsburylaw.com

Dated at Rockville, Maryland, 

this 15th day of December, 2016 

[Original signed by Herald M. Speiser] 

Office of the Secretary of the Commission