ML12060A235
| ML12060A235 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 02/21/2012 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 50-352-LR, 50-353-LR, NRC-1447, RAS DDD - 1 | |
| Download: ML12060A235 (271) | |
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Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Limerick Generating Station Oral Arguments Docket Number: 50-352-LR, 50-353-LR DOCKETED February 28, 2012 (11:00 a.m.)
OFFICE OF SECRETARY RULEMAKINGS AND Location: Norristown, Pennsylvania ADJUDICATIONS STAFF Date: Tuesday, February 21, 2012 Work Order No.: NRC-1447 Pages 1-269 IORIGINAL NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433 eLA e~ -rE E
1 1 UNITED STATES OF AMERICA 2 U.S. NUCLEAR REGULATORY COMMISSION 3
4 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 5
6 7 In the Matter of: : Docket Nos.
8 50-352-LR, 9 EXELON GENERATION COMPANY,: 50-353-LR 10 LLC 11 (Limerick Generating : ASLBP No.
12 Station, Units 1 and 2) : 12-916-04-LR-BDO1 13 14 15 Tuesday, 16 February 21, 2012 17 Norristown, Pennsylvania 18 BEFORE:
19 WILLIAM J. FROEHLICH, Chairman, Administrative Judge 20 WILLIAM E. KASTENBERG, Administrative Judge 21 MICHAEL F. KENNEDY, Administrative Judge 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2 1 APPEARANCES:
2 On Behalf of the U.S. Nuclear Regulatory 3 Commission:
4 MAXWELL SMITH, ESQ.
5 CATHERINE KANATAS, ESQ.
6 LAUREN WOODALL, ESQ.
7 U.S. Nuclear Regulatory Commission 8 Office of General Counsel 9 Mail Stop - 0-15 D21 10 Washington, D.C. 20555 11 12 On Behalf of the Petitioners, Natural Resources 13 Defense Council:
14 ANTHONY ROISMAN, ESQ.
15 Of: National Legal Scholars Law Firm, P.C.
16 241 Poverty Lane 17 Unit 1 18 Lebanon, NH 03766 19 603-443-4162 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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3 1 On Behalf of the Applicants, Exelon Generation 2 Company, LLC:
3 ALEX S. POLONSKY, ESQ.
4 BROOKE E. LEACH, ESQ.
5 Of: Morgan, Lewis & Bockius, LLP 6 1111 Pennsylvania Avenue, NW 7 Washington, DC 20004 8 202-739-5830 9
10 J. BRADLEY FEWELL, ESQ.
11 Of: Exelon Generation Company, LLC 12 4300 Warrenville Road 13 Warrenville, IL 60555 14 630-657-3769 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4 1 TABLE OF CONTENTS 2 ITEM PAGE 3 Introductions 5 4 Opening Remarks/Overview 11 5 Opening Statements 6 NRDC 14 7 Exelon - Applicant 22 8 NRC 30 9 Preliminary Topics to be Addressed 41 10 11 Closing Statements 12 Exelon - Applicant 255 13 NRC 260 14 NRDC 264 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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5 1 P-R-O-C-E-E-D-I-N-G-S 2 9:00 a.m.
3 CHAIRMAN FROEHLICH: Good morning. Please 4 be seated.
5 MS. LEACH: Good morning.
6 CHAIRMAN FROEHLICH: Good morning. It's 7 Tuesday, February 12, 2012, just a little bit after 8 9:00 a.m. Eastern Standard Time, in Courtroom A of the 9 Montgomery County Courthouse, Norristown, 10 Pennsylvania.
11 Today's proceeding concerns the 12 application by Exelon Generation Company to renew the 13 operating licenses for the Limerick Generation 14 Station, Units 1 and 2, for an additional 20 years.
15 The operating licenses for Units 1 and 2 16 are currently set to expire on October 26, 2024 and 17 June 22, 2029, respectively.
18 For the record, the Docket Number for 19 Exelon's applications are 50-352 LR and 50-353 LR.
20 On November 22, 2011 the Natural Resources 21 Defense Council, and we'll refer to them today I guess 22 as NRDC, filed a number of challenges to Exelon's 23 license renewal application, and requested a hearing.
24 The Atomic Safety and Licensing Board was 25 created on December 15, 2011 to adjudicate these NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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6 1 challenges, which are the subject of today's oral 2 argument.
3 My name is William Froehlich. I am an 4 Administrative Judge and serve as Chairman of this 5 Board. To my left is Judge Michael Kennedy. Judge 6 Kennedy has been a full-time member of the Atomic 7 Safety and Licensing Board Panel since 2008.
8 Judge Kennedy received his BS in Physics 9 from Canisius College and his Master's and PhD in 10 Nuclear Engineering from the University of Virginia.
11 Prior to joining the ASLBP, he spent over 12 35 years performing and reviewing licensing and safety 13 analysis of nuclear facilities.
14 To my right is Judge William Kastenberg.
15 Judge Kastenberg has served as a part-time member of 16 the Panel since 2007.
17 He received his BS and MS in Engineering 18 from UCLA and a PhD in Nuclear Engineering from 19 Berkeley.
20 Judge Kastenberg was a Professor for over 21 40 years, teaching courses such as risk assessment, 22 'management and nuclear reactor analysis and safety, 23 first at UCLA, then at Berkeley, where he retired as 24 the Daniel M. Tellep Distinguished Professor of 25 Engineering.
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7 1 As I mentioned, my name is William 2 Froehlich. I'm an attorney by training. I've had 3 about 35 years of Federal Administrative and 4 Regulatory Law experience. I joined the Panel in 5 2008. I serve as a Legal Judge and as Chairman of this 6 Board for procedural matters.
7 I'd also like to introduce our Law Clerk, 8 Matthew Flyntz. Mr. Flyntz is an attorney and assists 9 the Board with legal research, and last but not least, 10 we have our Administrative Assistant here, Ms. Karen 11 Valloch, all the way in the back.
12 At this point, I want to thank the Judges 13 and the staff of the Montgomery County Courthouse for 14 allowing us to use this beautiful Courtroom, 15 especially the Honorable William J. Furber, Jr., the 16 President Judge, and Judge Bernard Moore, whose 17 Courtroom we are using now, along with Ms. Gina 18 Eberhardt, Assistant to the Court Administrator, and 19 Officers Austin and Sisca from the Montgomery County 20 Sheriff's Department.
21 Our Court Reporter today is Tony Porreco.
22 There will be an electronic transcript made of this 23 entire proceeding, and copies will be available to the 24 public. The transcript will be posted on the NRC 25 website in about one week.
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8 1 I'd also like to mention that members of 2 the media and the public are welcome to attend, to 3 observe today's proceeding. Ms. Diane Screnci, in the 4 back with her hand up, from the NRC Office of Public 5 Affairs is present, and you can contact her if you 6 have any questions about anything that you hear today.
7 At this point, I'd like to have the 8 parties introduce themselves. I'd like for the lead 9 representative to introduce yourself, state the name 10 of your client and the name of any Counsel who may be 11 participating with you in oral argument today.
12 Let's start with the Applicant.
13 MR. POLONSKY: Good morning, Your Honors.
14 Alex Polonsky, Morgan, Lewis and Bockius for Exelon 15 Generation Company.
16 To my right, arguing as well today, is 17 Brooke Leach from Morgan, Lewis and Bockius, and to my 18 left is a representative from our client, Exelon 19 Generation, Jay Bradley Fewell.
20 CHAIRMAN FROEHLICH: Okay, thank you, and 21 for the Petitioner.
22 MR. ROISMAN: Good morning. My name is 23 Anthony Roisman. I represent the Natural Resources 24 Defense Council, NRDC and with me today for the 25 moment, is Chris Paine, who runs the nuclear program NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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9 1 at the NRDC, and he's sitting back over there.
2 My other technical people will be coming, 3 once they manage the traffic problems in this area, 4 and one of them will sit here with me, depending on 5 the questions that you're asking, just to give me 6 advice.
7 CHAIRMAN FROEHLICH: Okay, thank you, and 8 for the NRC staff?
9 MR. SMITH: Max Smith, arguing for the NRC 10 staff, and I'm joined today by Ms. Catherine Kanatas 11 and Ms. Lauren Woodall, who will -- Lauren Woodall, 12 who will both be arguing with me today.
13 We also have several NRC staff members 14 here. Leslie Perkins and Rob Kuntz are the 15 Environmental and Safety Project Managers for this 16 case, respectively, and Bruce Stuyvenburg and Jerry 17 Dozier are also with us.
18 CHAIRMAN FROEHLICH: Thank you. Just a 19 few pieces of housekeeping, before we begin.
20 As a reminder, it's the policy of the 21 Montgomery County Courthouse that the photography is 22 not permitted in the Courtroom.
23 In addition, the Courtroom doesn't permit 24 cell phones, so that shouldn't be an issue, but if you 25 were somehow able to get a cell phone in here, please NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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10 1 make sure you've shut it off or set it to 'stun', so 2 that we don't hear it.
3 I'd also like to explain a little bit 4 about the rules of the Atomic Safety and Licensing 5 Board, maybe a little background for this proceeding, 6 just a little bit about the purpose of today's 7 argument.
8 The Energy Reorganization Act of 1974, a 9 law passed by Congress, created the NRC, which is 10 tasked essentially with the regulation of civilian 11 uses of nuclear materials.
12 The Commission itself is comprised of five 13 Commissioners, who are appointed by the President and 14 confirmed by the Senate. The Commission has a large 15 regulatory staff of several thousand professionals and 16 they are represented today by the attorneys of the 17 NRC's Office of General Counsel.
18 We, as the Atomic Safety and Licensing 19 Board, are a separate entity. Judges of the ASLBP are 20 appointed to adjudicate these types of cases, and 21 while we are employees of the NRC, we're not part of 22 the Commission's regulatory staff. We don't talk with 23 the staff or with the Commissioners regarding the 24 proceedings before us.
25 The only communications we have with the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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11 1 staff, or with the other parties for that matter, are 2 through the documents they have filed and public 3 sessions like we are at today.
4 The Commission is an Appellate body and 5 may overrule our decision. Likewise, the Commission's 6 decisions are appealable to the Federal Courts.
7 As I mentioned, this proceeding arises 8 from an application dated June 22, 2011, filed by 9 Exelon to renew its operating licenses for the 10 Limerick Generating Stations, Units 1 and 2.
11 That application was noticed in the 12 Federal Register on August 24, 2011, and that Hearing 13 Notice also stated that any person who has an interest 14 that may be affected by that proceeding, who wishes to 15 participate as a party, must file a petition for leave 16 to intervene, in accordance with 10 CFR 2.309.
17 On November 22, 2011, the NRDC filed four 18 contentions, challenging the adequacy of Exelon's 19 license renewal application for the Limerick 20 Generating Station.
21 The first three contentions challenge in 22 various ways, whether or not Exelon's analysis of 23 severe accident mitigation alternatives, which we'll 24 refer to as SAMA's during today's proceeding, satisfy 25 the Commission's regulations regarding license NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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12 1 renewal.
2 The fourth contention challenges Exelon's 3 analysis of so-called -- of the so-called no action 4 alternative, to the proposed renewal of the licenses 5 for the two units.
6 On December 28, 2011, Exelon filed an 7 answer opposing NRDC's petition to intervene, and on 8 the 21s' of December, the NRC staff filed its answer, 9 opposing the petition.
10 NRDC filed a combined reply to the Exelon 11 and the NRC staff on January 6, 2012. Motions to 12 Strike portions of the NRDC's combined reply were 13 filed on January 1 7 th by Exelon and the NRC staff.
14 The NRC -- NRDC filed a combined 15 opposition to these Motions to Strike on January 27, 16 2012.
17 To be granted a hearing in one of our 18 proceedings, a Petitioner must demonstrate that it has 19 standing and must submit at least one admissible 20 contention. This Board will decide whether that 21 request for a hearing should be granted.
22 We will decide whether the NRDC has 23 standing, although we do note at the outset, that 24 neither Exelon nor the NRC staff has challenged 25 standing, and whether they have submitted at least one NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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13 1 admissible contention.
2 A number of regulations in CFR govern the 3 conduct of this Atomic Safety and Licensing Board and 4 the parties before us. In particular, 10 CFR Section 5 2.309(f) (1) governs the admissibility of contentions.
6 It provides that a Petitioner must provide 7 a specific statement of the law or fact to be raised 8 or controverted, must provide a brief explanation of 9 the basis of their contention, must demonstrate that 10 that contention is within the scope of the proceeding 11 and that it is material to the conclusions or 12 decisions that the agency must make.
13 Must provide a concise statement of the 14 alleged facts or expert opinion which support their 15 position, and on which they intend to rely at hearing, 16 and must show that there is a genuine dispute with the 17 Applicant on a material issue of law or fact.
18 As a reminder, the purpose of today's oral 19 argument is to allow the Board to ask questions of the 20 parties, to help us in our determination of whether 21 the NRDC has met the burden under 10 CFR Section 2.309 22 (f) (1).
23 Specifically, the focus today is whether 24 or not the four proffered contentions meet the 25 criteria for admissibility.
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14 1 After oral argument, we'll return to 2 Rockville, where we'll draft our initial decision and 3 it will be issued within approximately 45 days.
4 At this point, I'd ask if Judge Kennedy or 5 Judge Kastenberg has anything to add?
6 JUDGE KENNEDY: Nothing to add.
7 JUDGE KASTENBERG: Nothing to add.
8 CHAIRMAN FROEHLICH: As we stated in our 9 notice, scheduling -- our notice of January 31, 2012, 10 scheduling this oral argument, we'll begin with an 11 opening statement of no more than 10 minutes from each 12 party.
13 The Petitioners will go first, followed by 14 the Applicant, and then the NRC staff. We'll then 15 turn to our questions regarding the admissibility of 16 the Petitioners four proposed contentions and then 17 finish up the day with the Motions to Strike.
18 After we finished asking our questions, 19 each party will be given five minutes at the end of 20 the day, to make a closing statement.
21 We're now ready to hear the opening 22 statement from Petitioners, Mr. Roisman.
23 MR. ROISMAN: Thank you, Mr. Chairman, Dr.
24 Kastenberg, Dr. Kennedy.
25 This hearing is a strange item, if you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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15 1 consider that this plant still has years to go before 2 its initial operating license will expire.
3 So, we're here about future events.
4 Inherently, we're trying to predict the future, and 5 the basis of the Natural Resources Defense Council's 6 arguments here have to do with what we could now do, 7 to anticipate what will happen 13 and 18 years from 8 now, when these licenses will expire, if they are not 9 extended.
10 The essence of the case depends upon 11 whether the Applicant, Exelon, is able to meet its 12 burden of proof. They must establish that they meet 13 all of the requirements, environmental and safety 14 requirements, related to the proposed extension of 15 their license for an additional 20 years. Basically, 16 a 50 percent extension of their operating license.
17 We here have the burden to demonstrate 18 that we have raised valid challenges to that, but our 19 burden is merely to demonstrate one that the Chairman 20 has explained, that we have a specific contention, 21 that it raises a legitimate legal and factual 22 question, that we have provided bases which in normal 23 parlance, really means have we given reasons why our 24 legal arguments are provided, and finally, have we 25 provided sufficient technical information to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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16 1 demonstrate not that we're wrong, but only that there 2 is a dispute between what the Applicant has said and 3 what we believe should be included in this proceeding.
4 In that regard, I think that the Supreme 5 Court's decision in Robertson versus Methow Valley 6 Citizen's Council, which we cited in our opening 7 petition, perhaps lays out better than any other 8 thing, the basic legal principle that we are pressing 9 for in this case.
10 In that decision at pages 51 to 52, the 11 Supreme Court said, "Omission of a reasonably complete 12 discussion of possible mitigation measures would 13 undermine the action forcing functions of NEPA."
14 "Without such a discussion, neither the 15 agency nor other interested groups and individuals can 16 properly evaluate the severity of the adverse effects 17 and later," on the same page, "recognizing the 18 importance of such a discussion in guaranteeing that 19 the agency is taking a hard look at the environmental 20 consequences of proposed Federal action."
21 "SBQ regulations require that the agency 22 discuss possible mitigation measures when defining the 23 scope of the environmental impact statement, in 24 discussing alternatives to the proposed action and 25 consequences of that action, and then explaining its NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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17 1 ultimately decision."
2 Now, we are in this anomalous position 3 created by the regulations, that basically we are 4 asking this Board to allow us to challenge compliance 5 with the National Environmental Policy Act.
6 However, as the Board is probably aware, 7 the Applicant is not technically bound by that Act.
8 It's an Act that applies to Federal agencies.
9 None the less, under the Commission's 10 regulations, particularly 2.309(f) (1) and (f) (2), a 11 party that wishes to challenge environmental matters 12 must start by challenging the environmental report, 13 and that is what we have done.
14 So, where we claim that the environmental 15 report is deficient for not being in compliance with 16 NEPA, we're basically saying that for the moment, you 17 are to think of the environmental report as though it 18 were an impact statement by the staff.
19 Any or all of those concerns that we have 20 could, in theory, be eliminated when the staff 21 produces its draft or final environmental impact 22 statement. But the rules say we must raise the issue 23 now, and so, that is what we are doing.
24 Our first three contentions, and I'll 25 leave off the 'e', if that's all right, they're all NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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18 1 environmental contentions.
2 One, two and three really deal with the 3 question of severe accident mitigation alternatives, 4 and as the Board is aware, the Applicant had such a 5 study prepared by the NRC staff in 1989, and there is 6 a legal question as to whether or not that document 7 was itself, that required evaluation of mitigation 8 alternatives, that NEPA, that the Methow case 9 indicates is required, and that the Commission's 10 regulations require.
11 Our view is, it is not, and there are 12 three separate views. First, there is important new 13 and significant information that was not part of that 14 initial analysis, some 20+ years ago, and that needs 15 to be considered, in order to fully evaluate the 16 mitigation measure possibilities for this plant.
17 Secondly, that if that original analysis 18 is to be deemed an analysis of mitigation 19 alternatives, not of SAMA, you know, you could say 20 that were SAMA, for the Commission's specific 21 reference to SAMA in Part 51, but beyond its reference 22 to SAMA in Part 51, the Commission has obligated the 23 Applicant to do certain things, to evaluate 24 alternatives. Mitigation measures are alternatives.
25 Instead of approving the application as NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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19 1 the Applicant submits it, this Board could approve it, 2 subject to various mitigation measures, being the 3 document.
4 So. what we're talking about here in 5 Contention 2, is that the general requirements for how 6 alternatives are to be evaluated, have not been met by 7 the Applicant.
8 In Contention 3, we directly take on 9 Applicant's assertion in its environmental report, 10 that the 1989 analysis meets an exception that the 11 Commission created to the requirement that plants 12 seeking license renewal must obtain and have a SAMA 13 analysis conducted, and there, we take a look at what 14 would be a legally sufficient SAMA analysis, compare 15 it to the 1989 SAMDA analysis, as they used a slightly 16 different name, and argued that it does meet it.
17 The second major contention that we 18 raised, Contention 4, also deals with alternatives, 19 and this is the so-called no-action alternative, and 20 it's an alternative without alternatives, if you will.
21 In other words, it doesn't encompass some 22 determination that some other thing ought to be done, 23 instead of re-licensing the Limerick facility. It 24 merely asks a very straight forward question, what 25 would be the consequence if this Board were to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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20 1 determine that license renewal was not appropriate?
2 Now, obviously, that question has to start 3 to be answered with looking at 2024, because between 4 now and 2024, no matter what this Board decides on 5 license renewal, nothing will be changed unless the 6 Applicant itself chooses not to continue to operate, 7 or for other reasons, the Commission orders the plant 8 shut down.
9 So, we start with requiring that there be 10 a look at the likely consequences of this event, and 11 we claim that the Applicant has failed to look, or 12 even consider, likely consequences.
13 Their analysis of alternatives to the 14 plant, which is a different issue, that is, instead of 15 allowing the plant to operate for 20 years, let's 16 build a solar facility, or let's buy power from an 17 outside utility or other alternatives.
18 Those options are not what we're 19 discussing here. We're saying, what is likely to 20 happen? Is it likely that they would take thousands 21 of acres to put in a solar facility? Is it likely 22 that they would put in a wind project, with again, 23 thousands of acres?
24 Is it likely that they would see energy 25 demand side management, that would reduce the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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21 1 generating need that this plant had been meeting up 2 until 2024, and we believe the Applicant has not 3 examined that question.
4 To the extent that they've looked at the 5 no-action alternative at all, they have said 6 explicitly in their environmental report, that what 7 they are doing is comparing no action to the need for 8 the generating capacity of this plant, its full power 9 generation.
10 That is not what the no-action alternative 11 is suppose to do. There is no assumption that the 12 generating capacity of the plant needs to be met by 13 the generating capacity of some other plant, and so, 14 that failure is also a part of our contention.
15 Thirdly, that in looking at what the 16 likely consequences would be of such an event, the 17 Applicant has ignored a wide range of things that are 18 likely to evolve over the next 13 to 18 years, in 19 trying to figure out what would happen if this plant 20 didn't get its license renewal.
21 In sum, we believe that we've presented 22 the Board with the necessary elements for admissible 23 contentions, and request that the Board grant our 24 petition and allow us to proceed to the merits of 25 these contentions over the next several months. Thank NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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22 1 you.
2 CHAIRMAN FROEHLICH: Thank you, Mr.
3 Roisman. I'd now like to hear opening statement from 4 the Applicant, Mr. Polonsky.
5 MR. POLONSKY: Thank you. Good morning, 6 Your Honor. Thank you for this opportunity to provide 7 an opening statement on behalf of Exelon Generation, 8 the company that has safely operated for decades, the 9 two nuclear plants located at Limerick Generating 10 Station, and the company that is seeking a 20-year 11 extension on the current operating license for these 12 two plants.
13 Limerick Station generates 2,340 watts --
14 megawatts of electricity for the grid. The station is 15 a safe and dependable source of base load electrical 16 power. It's been operating for years on end, with 17 only periodic breaks for maintenance and refueling.
18 Exelon submitted its license renewal 19 application for Limerick Station last June, and the 20 NRC will spend thousands of hours conducting a 21 technical and environmental review of the application, 22 regardless of whether there is a hearing on the 23 application.
24 The NRDC has filed a petition to 25 intervene, to challenge the application, but the NRDC NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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23 1 does not allege a single safety issue with the 2 operation of the plants during the renewed term of 3 operations.
4 Rather, NRDC raises, as we have heard from 5 Mr. Roisman, four environmental contentions, framed as 6 legal deficiencies with the environmental report that 7 Exelon submitted to the NRC in support of its license 8 renewal application.
9 The first three contentions are framed 10 around an allegation that the NRC granted Exelon a 11 "inappropriate exemption", which allows Exelon to rely 12 on a 1980's era severe accident mitigation study, and 13 that there is new information, including the accident 14 in Japan last March, that now should be considered.
15 That 1989 study was included in a 16 supplement to the final environmental statement that 17 the NRC staff issued in 1989, during the Limerick 18 Station's construction and operating licensing phase.
19 These three contentions are not admissible 20 in this licensing proceeding, because they are direct 21 challenges to a rule in 10 CFR Section 51.53, that 22 specifically accepts Limerick and two other nuclear 23 stations, from submitting an analysis of SAMA's with 24 a license renewal application.
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24 1 because Limerick and these two other nuclear stations 2 had already performed a SAMA or SAMDA analysis at 3 their construction and operation phase.
4 The Commission regulations in 10 CFR 2.335 5 are crystal clear, that an existing NRC regulation 6 cannot be challenged in a license renewal proceeding, 7 absent a waiver approved by the Commission itself.
8 The NRDC did not seek that approval.
9 Accordingly, these contentions are simply not 10 admissible here.
11 This is a perfectly fair outcome. If the 12 NRDC thought that the 1989 final environmental 13 statement for Limerick was not adequate, then it could 14 have challenged the FES shortly after it was 15 published. That was the first bite at the apple.
16 If the NRDC did not like the Commission's 17 regulations, that accepted Limerick and these two 18 other nuclear power stations from submitting an 19 analysis of SAMA's with the license renewal 20 application, then it could have submitted comments 21 when that rule was finalized in 1996.
22 That rule was published in the Federal 23 Register and was opened, and then reopened for receipt 24 of public comments. That was the second bite at the 25 apple, and there is no bar to the NRC today, filing a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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25 1 petition for rule making, seeking to have the rule 2 changed.
3 But Section 2.335 soundly rejects any 4 attempt by the NRDC to its third bite at the apple in 5 this licensing proceeding.
6 The NRDC claims that the plain language of 7 the regulation in Section 51.53 does not specify that 8 it includes Limerick and that therefore, the NRDC is 9 allowed to challenge whether Limerick falls under
.10 51.53's protective umbrella.
11 But the Commission's very intent in 12 establishing the exception in Section 51.53 was to 13 place Limerick and these two other nuclear stations 14 under that umbrella. That language is indisputable.
15 The NRDC's argument to the contrary is unsupported.
16 What these three contentions boil down to 17 is the NRC's disagreement with a long standing NRC 18 regulation, that the NRDC apparently only recently 19 realized, applies to Limerick Station.
20 The NRDC cannot use this licensing 21 proceeding as a forum to challenge their new found 22 concern. It's as simple as that, and this is not an 23 outcome that Exelon mandated. It's an outcome that 24 the Commission itself has mandated, leaving no 25 discretion to the Board to find otherwise.
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26 1 The first three contentions also include 2 a claim that NRDC can challenge, in this license 3 renewal proceeding, Exelon's evaluation of new and 4 significant information that was included in the 5 environmental report.
6 Exelon included NSI in its environmental 7 report and the NRC staff will review the adequacy of 8 that information, as part of its review of the license 9 renewal application.
10 However, the Commission has already ruled, 11 and a Court of Appeals has already affirmed, that a 12 Petitioner like NRDC cannot litigate in a licensing 13 proceeding, the adequacy of the discussion of new and 14 significant information on matters that are resolved 15 by regulation.
16 The fourth and last of NRDC's contentions 17 argues that Exelon's evaluation of the environmental 18 impacts of not issuing a renewed license for Limerick 19 Station, called the no-action alternative, is 20 deficient because it does not include certain 21 renewable energy alternatives and reductions in the 22 use of electricity called demand side management that 23 could, hypothetically blossom in the shadow of the 24 loss of 2,340 megawatts of power from Limerick 25 Station.
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27 1 Yet Exelon included, in its environmental 2 report, the very renewable energy alternatives and 3 demand side management possibilities that the NRC 4 claims is missing -- NRDC claims is missing.
5 Exelon included a discussion of renewable 6 solar and wind resources with a supplemental nature 7 gas fired plant for when the sun is not shining or the 8 wind is not blowing.
9 Exelon also included a discussion of 10 renewable wind energy with a compressed air energy 11 storage facility, and Exelon included a discussion of 12 demand side management.
13 Exelon not only included the discussion of 14 these possibilities, but it presented a discussion of 15 their environmental impacts. Because the 16 environmental report contains the very information 17 that the NRDC alleges is missing, this fourth 18 contention also is not admissible.
19 Exelon and the NRC staff explained all of 20 this in their answers to the petition to intervene.
21 In response, the NRDC filed a reply that creates a 22 moving target for the parties and for this Board.
23 The NRDC crafted brand new arguments and 24 submitted new interpretations about what their experts 25 really meant to say in the petition to intervene, but NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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28 1 a Petitioner cannot use a reply to support vague and 2 unsupported arguments originally presented in the 3 petition to intervene.
4 NRDC tries to shield its actions by saying 5 that it was providing "supporting evidence", and that 6 this is not the same as elaborating on the basis for 7 a contention. This semantic gymnastics ignores the 8 fact that the scope of a contention is defined by its 9 legal citations and the breadth of its factual 10 allegations.
11 Any new theories about why the 12 environmental report is not adequate go beyond 13 supporting evidence. They change the scope of the 14 contention, and Commission regulations and precedent 15 require that the scope of the contention be defined 16 with specificity in the petition to intervene.
17 NRDC justifies its response in part, by 18 claiming that Exelon sought to demonstrate that NRC 19 was wrong "on the merits". That is not the case.
20 The Board has an obligation, at the 21 admissibility stage, to evaluate whether the 22 contention contains sufficient information to 23 demonstrate that there is a genuine dispute. That is 24 what the regulation in Section 2.309 (f) (1) requires, 25 and Mr. Roisman, in his opening, stated that he has NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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29 1 presented experts that demonstrate that there is a 2 dispute. We would agree with that, but that is not 3 the legal standard.
4 The standard is that it has to raise a 5 genuine dispute, and Exelon has demonstrated in its 6 answer, that the factual arguments raised by NRDC do 7 not contain sufficient information to raise a genuine 8 dispute. Exelon's arguments, therefore, don't go to 9 the merits.
10 For example, NRDC's employees say that the 11 wind patterns have changed over the past decades, such 12 that disbursement of radiological impacts from an 13 accident at Limerick might be different today than 14 decades ago.
15 It's entirely appropriate for Exelon to 16 point out that NRDC's employees, as they're experts, 17 provide a objective data which actually shows the 18 opposite.
19 The Board is not a robot, mindlessly 20 accepting any arguments that are submitted simply 21 because they're in a signed declaration. The Board is 22 support to evaluate the arguments for what they do and 23 do not say.
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30 1 new supporting evidence. That may be true, but there 2 is a big difference between new documents that support 3 an already well articulated argument and new 4 arguments, supported by already identified documents.
5 For the Board to rule otherwise, would be 6 giving an incentive for a Petitioner to hide the ball, 7 regarding the bases for a contention, including to 8 provide legal cites in its petition to intervene.
9 The Petitioner could always justify later, 10 expanding the contention, by stating that it was 11 merely providing supporting evidence. That is akin to 12 notice pleading, which the Commission has soundly 13 rejected, as not being the standard for admissibility 14 of contentions in the license renewal proceeding.
15 For all these reasons, the Board should 16 deny NRDC's petition to intervene in its entirety. We 17 look forward to answering the Board's questions.
18 Thank you.
19 CHAIRMAN FROEHLICH: Thank you, Mr.
20 Polonsky. Mr. Smith?
21 MR. SMITH: Thank you, Judge Froehlich, 22 Judge Kastenberg, Judge Kennedy.
23 The NRC staff opposes the Natural 24 Resources Defense Council's petition to intervene.
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31 1 Board has too, a petition to intervene must both 2 establish standing, as well as proffer of one 3 admissible contention.
4 Under the Commission's contention 5 admissibility standards, an admissible contention must 6 demonstrate that it is in the scope of the proceeding, 7 material to the issues to be resolved and also, 8 supported by an adequate factual basis.
9 The NRC staff believes that NRDC has 10 established standing, but at that none of the four 11 contentions meet the Commission's strict standards for 12 contention admissibility, and because all four 13 contentions focus on the environmental review, I'll 14 take a minute to briefly explain the scope of the NRC 15 staff's environmental review in license renewal 16 proceedings.
17 The National Environmental Policy Act 18 requires the NRC to consider the environmental impacts 19 of renewing the operating license for an additional 20 20 years.
21 When it promulgated its license renewal 22 regulations, the Commission found that based on its 23 experience with the existing reactors, and the 24 misunderstanding of their impacts, it could draw some 25 generic conclusions on the environmental impacts of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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32 1 renewing operating licenses. Prepared a generic 2 environmental statement to support those conclusions 3 and then the NRC and the Commission embodied those 4 conclusions in its regulations.
5 However, the Commission also realized that 6 some issues could not be determined generically and 7 need to be resolved on a site specific basis.
8 For those issues, the NRC staff prepares 9 a supplement to the generic environmental impact 10 statement called a supplemental environmental impact 11 statement, and in preparing that, the NRC staff relies 12 on environmental reports submitted by the Applicant, 13 that the NRC staff uses at the starting point for its 14 own independent review.
15 Importantly, issues the Commission has 16 resolved generically are outside the scope of 17 adjudications and NRC's proceedings.
18 All three contentions -- the first three 19 contentions, Contentions 1, 2 and 3, and I'll drop the 20 'e' also, raise challenges to treatment of the -- the 21 environmental report's treatment of severe accident 22 mitigation alternatives.
23 The Commission's regulations clearly 24 specify that if the staff has previously considered 25 severe accident mitigation alternatives, in either an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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33 1 environmental impact statement or a supplement to an 2 environmental impact statement, or in an environmental 3 assessment, then license removal phase for that 4 facility, severe accident mitigation alternatives need 5 not be considered in the environmental report.
6 The staff considered serve accident 7 mitigation design alternatives to the Limerick 8 facility and a supplement to the environmental 9 statement at the operating license phase -- licensing 10 phase.
11 Therefore, under NRC regulations, all 12 three of the first three contentions are outside the 13 scope of this proceeding and immaterial because they 14 challenge an analysis that the regulations do not 15 require be in the environmental report.
16 Moreover, the Commission explained its 17 intent when it promulgated this regulation in the 18 accompanying statement of considerations, which was 19 published in the Federal Register.
20 The Commission stated, "NRC staff 21 considerations of severe accident mitigation 22 alternatives have already been completed and included 23 in an EIS or supplemental EIS for Limerick, Comanche 24 Peak and Watts Bar."
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34 1 alternatives need not be reconsidered for these plants 2 for license renewal.
3 Like all generic determinations, the NRC 4 regulations provide avenues to challenge those, both 5 in NRC adjudications and elsewhere, to the petitions 6 for rule-making or petitions to waive the 7 applicability of a rule in a given proceeding, but 8 NRDC has not chosen to pursue either of those avenues.
9 Importantly, the NRC staff's consideration 10 and the Commission's consideration of severe accidents 11 and severe accident mitigation alternatives did not 12 end when it promulgated the license renewal 13 regulation.
14 Rather, the Commission and the staff 15 continue to look at severe accidents and ways to 16 mitigate those severe accidents, both through site 17 specific studies and through generic studies across 18 the entire industry, most recently, the response to 19 the incidents of September 11, 2001, the Commission's 20 planned proposed response to the incident of Fukushima 21 and the state-of-the-art reactor consequence in this 22 analysis and other studies, just to name a few, have 23 continued to look at those issues in an evolving way.
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35 1 treatment of the no-action alternative in the 2 environmental report.
3 Now, a no-action alternative considers 4 what would happen if the NRC were to deny the license 5 renewal application, both the environmental impacts of 6 decommissioning and as well, the environmental impacts 7 of the likely sources of power to replace Limerick 8 generating capacity.
9 NRDC alleges the no-action alternative 10 should consider additional alternatives, but NRDC did 11 not provide any evidence to show their technical 12 feasibility or commercial viability in its petition to 13 intervene.
14 NRDC's reply brief attempted to cure this 15 deficiency by providing additional facts to support 16 the contention, but Commission's precedent is very 17 clear that Petitioners cannot use a reply brief as an 18 opportunity to re-invigorate and thinly supported 19 contention in the first instance, both for reasons of 20 fairness and efficiency.
21 Moreover, in this case, the additional 22 information in the reply brief is not supported by a 23 citation to any expert declaration or other technical 24 document, and therefore, it constitutes the types of 25 assertion and speculation that the Commission has also NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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36 1 found to be insufficient bases for admissible 2 contentions.
3 Finally, I think it's worth noting that 4 however the Board rules today, the NRC staff will 5 conduct its own independent review of the Limerick 6 license renewal application, both from a safety and 7 from an environmental perspective.
8 The NRC staff's environmental review will 9 consider the no-action alternative, as well as whether 10 or not new and significant information impacts any of 11 the generic determinations the Commission has 12 previously made, including the determination to plants 13 such as Limerick need not conduct a second SAMA 14 analysis, if one was already completed.
15 The public has had an opportunity to 16 participate in this process, by submitting the scoping 17 comments for the staff's preparation of the 18 supplemental EIS for this proceeding, and the public 19 will have further opportunities to participate by 20 submitting draft comments on the NRC's draft 21 supplemental environmental impact statement.
22 Therefore, the NRC staff opposes NRDC's 23 petition to intervene. We believe they have shown 24 standing, but not submitted a contention that meets 25 the Commission's strict admissibility standards.
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37 1 None the less, the NRC staff will continue 2 to look at these issues in an ongoing fashion, as it 3 prepares its environmental impacts statements for 4 Limerick. Thank you.
5 CHAIRMAN FROEHLICH: Thank you, Mr. Smith.
6 From the opening statements and from our review of the 7 pleadings that have been filed with the Board, much of 8 our discussion today, I think, will deal with SAMA's 9 and SAMDA's, and the relevance and the importance of 10 the SAMDA that was conducted in 1989, and what efforts 11 will be conducted to analyze severe accidents going 12 forward.
13 I would like to start our questioning, I 14 guess, with reference to, I guess the Commission's 15 most recent statement on SAMA and SAMDA's in the 16 Pilgrim decision, the CLI 12-01.
17 There; the Commission stated that a SAMA 18 analysis is part of the NRC's license renewal review 19 under NEPA. It's a NEPA mitigation alternative 20 analysis and to date, has been conducted as a 21 quantitative analysis to identify if there are 22 additional mitigation measures, procedures or hardware 23 that may be cost beneficial to implement a nuclear 24 power plant, to further reduce severe accident risk, 25 probability or consequences.
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38 1 The SAMA analysis is a probability weight 2 of assessment of the benefits and costs of mitigation 3 alternative that can be used to reduce the risks, 4 again, probability or consequences or both, of 5 potential severe accidents at nuclear power plants.
6 Various computer codes are used to 7 calculate the accident sequence, probabilities and 8 consequences, page two of CLI 12-01.
9 The Commission, in that Pilgrim decision, 10 said that with respect to a SAMA analysis in 11 particular, unless a contention submitted with actual 12 -- with adequate factual documentary or expert support 13 raises a potentially significant deficiency in a SAMA 14 analysis, that is a deficiency that could credibly 15 render the SAMA analysis all together unreasonable 16 under NEPA standards, a SAMA related dispute will not 17 be material to the licensing decision, and is not 18 appropriate for litigation in an NRC proceeding, page 19 25 of CLI 12-01.
20 The Commission in Pilgrim closed with the 21 final observation that ultimately, the ER serves to 22 inform the SAMA analysis in the first -- in the final 23 supplemental environmental impact statement prepared 24 in the Pilgrim license proceeding, while the Board's 25 decision in that case focused on the adequacy of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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39 1 ER, NEPA compliance is determined by the adequacy of 2 the SEIS, not the Applicant's ER.
3 Therefore, the ultimate issue in 4 determining NEPA compliance is the adequacy of the 5 staff's environmental review, not the Applicant's ER, 6 pages 29 to 30 of CLI 12-01.
7 As part of the notice scheduling today's 8 oral argument, the Board sent out a preliminary list 9 of topics to be addressed. I propose that we move 10 through those questions in order, and the Board has a 11 series of questions to follow up, the ones we gave 12 you, as sort a sneak-peek of.
13 I guess I'd start with the broad first 14 question in our notice of January 3 1 st, where we said, 15 "Considering the 10 CFR 51.53 (c) (3) (4) requires an 16 environmental report to contain any new and 17 significant information regarding the environmental 18 impacts of license renewal of which the Applicant is 19 aware, and that 10 CFR 51.53 (c) (3) (2) (L) requires an 20 ER to consider alternatives to mitigate severe 21 accidents if the staff has not previously conducted 22 severe accident mitigation alternative for the 23 Applicant's plant, please discuss how these two 24 sections of the Commission's regulation should be 25 applied in the Limerick license renewal proceeding."
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40 1 I think I'd like to hear first from the 2 Applicant, and you touched on that in your opening.
3 Mr. Polonsky?
4 MR. POLONSKY: Thank you, Your Honor.
5 Looking at the overall structure of 10 CFR Section 6 51.53 (c) (3), there are these four sub-sections, 1, 2 7 and 3, or i or f, 1, 2 and 3 we'll call them,-- 1, 2, 8 3 and 4, sorry.
9 Four is the new and significant 10 information section and two is the section that has 11 certain requirements that must be met and creates 12 exceptions. We don't call them exemptions, but 13 exceptions to others.
14 There is not question in Exelon's mind, 15 that there is an obligation to provide a discussion of 16 new and significant information.
17 However, Section 2L specifically says that 18 if the staff has not previously done a SAMA analysis, 19 and here they have, there is no requirement to submit 20 a SAMA analysis.
21 So, the 1989 SAMDA analysis that was part 22 of the supplement to the final environmental statement 23 for Limerick, as part of its construction and 24 operating phase, was not incorporated by reference, 25 was not brought in at all into the environmental NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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41 1 report.
2 There simply was an analysis of new and 3 significant information, or I should say new 4 information to determine if it was significant, in the 5 environmental report, and the specific rationale for 6 doing that was to determine if there was going to be 7 a change in the severe accident consequences, and on 8 page 5-4 of the environmental report, if I can just 9 quote to you.
10 "For purposes of this review," talking 11 about new and significant information, "new 12 information is defined as information indicating a 13 potential change in consequences of severe accidents 14 from those considered by the NRC in the GEIS, or 15 generic environmental impact statement."
16 So, there is no discord between Sub-17 Section 2L and Sub-Section 4. Sub-Section 2L says we 18 do not need to include a SAMA analysis. We did not.
19 Section 4 says we do need to look at new information 20 to determine whether it is significant, and we have 21 done that, and the conclusion was that none of the 22 information that we looked at, that was new, was in 23 deed, significant.
24 CHAIRMAN FROEHLICH: It's your position 25 that because the SAMDA was conducted by the staff, in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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42 1 August of 1989, you need not include that, make 2 reference to that, as part of your application, 3 relying on the exception or exemption in the regs, is 4 that correct?
5 MR. POLONSKY: That is correct, Your 6 Honor.
7 CHAIRMAN FROEHLICH: And that is the 8 position that staff shares, is that correct, Mr.
9 Smith?
10 MR. SMITH: That is correct, Your Honor.
11 CHAIRMAN FROEHLICH: Okay. Now, I guess 12 I turn to the Petitioners.
13 JUDGE KASTENBERG: May I ask just a 14 question?
15 CHAIRMAN FROEHLICH: Sure, go ahead. You 16 know what my question will be.
17 MR. ROISMAN: I think I do.
18 CHAIRMAN FROEHLICH: All right.
19 JUDGE KASTENBERG: But you brought up this 20 whole question about little 4, as new and significant 21 information.
22 The fact that that is included, an 23 analysis is included in the ER, is that challengeable?
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43 1 presented, it is challengeable.
2 However, we have a line of case law that 3 applies here, which says, for whatever curious result 4 it is, it is not challengeable.
5 In the Pilgrim and Vermont Yankee 6 proceedings for license renewal, the Judges of those 7 Licensing Boards grappled with that very same 8 question, Judge Kastenberg, and they came to the 9 conclusion that -- and let me back up.
10 The sections that were relevant to that 11 analysis was (c) (3) (i) and Section 4, for new and 12 significant. Little i, or 1, covers Category 1 13 information and says that if it's a Category 1 it does 14 not need to be included, frankly, because it's covered 15 by the generic environmental impact statement and 16 therefore, has already been incorporated as part of a 17 rule-making to Appendix B of 10 CFR Part 51.
18 So, with that background, the Boards then 19 looked at Section 1 and 4 and said, does 4 trump 1, 20 and the answer was no, even though you don't need to 21 provide information about Category 1 issues, because 22 they've already been included in the GEIS, you still 23 need to look at new and significant information.
24 But any challenge of whether that 25 information is there or whether that information, for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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44 1 our case which is most important, is adequate, is not 2 challengeable in the license renewal proceeding.
3 Those decisions went to the Commission.
4 They went to the Circuit Court and they were affirmed.
5 That does not mean that there is no avenue for a 6 Petitioner, like NRDC, to challenge.
7 They can file a petition for rule-making.
8 They can, as the staff mentioned, comment on the draft 9 and final SEIS, but that litigation of the adequacy of 10 that new and significant information, the Commission 11 has already said, cannot be done in a license -- in 12 any license renewal proceeding.
13 JUDGE KENNEDY: Can you help us maybe 14 expand on that a little bit more?
15 It seems to me, and there is a constant 16 theme between the Applicant's filing and the staff's 17 filings, does this rely on the fact that this is a 18 Category 1 issue? I mean, are we to the point of 19 saying that severe accident mitigation alternatives
- 20. are a Category 1 issue?
21 I mean, I think we've got to be careful.
22 I'm trying to look for the thread of when we're 23 talking about severe accidents, which I would agree 24 with you, is a Category 1 issue, and mitigation 25 alternatives, which at least is not resolved NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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45 1 generically, and then we -- we'll grapple with the 2 exception/exemption issue.
3 But in my mind, when it comes to new and 4 significant information, I think I'm looking for some 5 clarification. The scope of that new information 6 should go as broad as the mitigation alternative, and 7 I guess I'm trying to understand how the case law 8 takes that off the table.
9 I mean, the information is in there, and 10 I understand what you're saying. If you put it in 11 there, the adequacy could -- challenge could be 12 raised. Now, whether it would be accepted or not, is 13 pointed in the case law.
14 But I -- somehow, the bridge gets broken 15 to me, somewhere between this Category 1 issue and 16 where we are with mitigation alternatives, so -- and 17 this is going to come up a few times. I mean, I think 18 we've got some constant questions on Contentions 1, 2 19 and 3, of how this all works.
20 We'll get to it, but I'm thinking, what if 21 all the new and significant information led you to do 22 -- what if it was significant? What is the outcome?
23 Do you just say in the application that it's 24 significant? Do you not have to deal with the SAMDA 25 analysis, at that point? Is it the staff's issue to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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46 1 deal with?' Does the Applicant have -- I'm sorry, this 2 is too many questions, but let's start back with the 3 Category 1.
4 We're going to get to all of these. I 5 mean, I think this is going to come up time and again, 6 and if we can nail down some of it earlier, it would 7 be helpful. I've sort of got a broken bridge on my 8 road to success here.
9 MR. POLONSKY: Well, let me work with that 10 analogy and either make sure it doesn't break in the 11 first place, or it fixes it for you.
12 Let me answer your question in two 13 phrases. The first is that Exelon's approach was not 14 to look at new and significant information for 15 mitigation alternatives. The analysis has to start 16 with severe accident consequences, and is there any 17 new and significant information that would make a 18 change in the -- make a significant change, because 19 it's new and significant information, a significant 20 change in the accident consequences?
21 And the NRC has -- well, I won't even go 22 to the NRC. The 1989 supplement to the FES uses 23 language in its conclusion that the consequences of 24 severe accidents are -- let me get the exact language 25 for you, reasonably low.
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47 1 And so, the analysis that Exelon performed 2 was to determine whether there was any information 3 that was significant enough to change this conclusion.
4 I'm on page VI of the supplement to NUREG-0974, which 5 is that 1989 SAMDA document.
6 I'm at the top, and the first full 7 paragraph, just the first sentence, "In summary, the 8 risks and environmental impacts of severe accidents at 9 Limerick are acceptably low."
10 Once the GEIS was issued, severe accidents 11 had a Category 1 designation of 'small'. So, the 12 review was to determine, was there any new and 13 significant information that would change that 14 category of 'small', to something more -- a greater 15 impact, moderate or large?
16 If the result of that was yes, the new 17 information is significant, then there would have been 18 a next step to look at mitigation alternatives, and 19 that did not happen.
20 But regardless, that wouldn't have been 21 challengeable in this license renewal proceeding, and 22 let me try and make the connection for you, between 23 this Category 1 issue, and it not being challengeable.
24 The ultimate take-home message, I hope 25 you're looking for is, you don't need to find -- the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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48 1 Board does not need to find that the SAMDA or SAMA 2 issue is a Category 1 issue for Limerick.
3 We think there is sufficient information 4 in the record for you to conclude that SAMA's for 5 Limerick are a Category 1 issue. That would clearly 6 connect the Pilgrim and Vermont Yankee case law 7 through to new and significant information.
8 However, even if the Board did not find 9 that, we argued in our answer that that case law 10 stands for the principle that any issue that is 11 accepted by regulation, accepted by law, Category 1 12 says you don't need to include it, 2L says you don't 13 need to include a SAMA if you're Limerick. It's 14 excluded -- accepted by law, then that is the new and 15 significant information associated with that, and is 16 not challengeable in the license renewal proceeding.
17 Otherwise, it eviscerates the whole -- the 18 whole exception in the first place. Did that help?
19 JUDGE KENNEDY: So, when the bridge has 20 been joined, there is the -- two sides of the river 21 have been joined, in the world of severe accident 22 mitigation alternatives, not just severe accidents.
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49 1 at least by law, ruled out, even though you would go 2 through -- again, in the hypothetical world where 3 there was significant information, it ultimately led 4 to a re-analysis of mitigation alternatives.
5 Would that all go into the ER, as new and 6 significant information, and is not challengeable?
7 MR. POLONSKY: Again, it would not be 8 challengeable, regardless of what the result is.
9 JUDGE KENNEDY: And that is because severe 10 accident mitigation alternatives are ruled out by law?
11 MR. POLONSKY: For Limerick.
12 JUDGE KENNEDY: For Limerick?
13 MR. POLONSKY: Yes, Your Honor. The 14 contention -- the result would be no different, if you 15 had a Category 1 issue, we think, if you had new and 16 significant information.
17 JUDGE KENNEDY: Right.
18 MR. POLONSKY: New information that turned 19 out to be significant, you would have to do a further 20 analysis of what that significance means for whatever 21 Category 1 issue it was, and the NRC staff would 22 review it, and the public could comment on it, but 23 they could not litigate it.
24 JUDGE KENNEDY: Could not litigate it?
25 That is -- that is the point you're making?
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50 1 MR. POLONSKY: Yes.
2 JUDGE KENNEDY: So, if I -- and again, I 3 think to Mr. Smith, what I heard you say is that the 4 staff will do its own analysis of mitigation 5 alternatives and provide possibly, information within 6 an environmental impact statement, supplemental 7 environmental impact statement for Limerick.
8 I mean, assuming that it all -- I mean, 9 again, it may support what is currently on record, but 10 I thought I heard you say that the staff will also be 11 doing work on its own, to look at kind of whether new 12 and significant information is already -- or whether 13 new information, possibly leading to changes or 14 material within the supplemental environmental impact 15 statement, and is it your position that that's not 16 challengeable, you know, in a legal proceeding, in a 17 hearing?
18 MR. SMITH: Thank you, Your Honor. You've 19 raised several points, and I'll try to address them.
20 JUDGE KENNEDY: I have a tendency to do 21 that. Please make me back up and repeat if, if you 22 need it.
23 MR. SMITH: The NRC staff understands that 24 it has to look for new and significant information to 25 comply with NEPA, against all of the Commission's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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51 1 generic determinations, those in the GEIS, those that 2 are labeled as Category 1 issues and also, this 3 regulation that excuses facilities that have already 4 completed one SAMA evaluation and are conducting 5 another one.
6 The NRC looks at that information and 7 under -- in the statement of considerations 8 accompanying the Commission's environmental 9 regulations, it was in 61 Federal Register 28467, if 10 the NRC staff ultimately concludes that there is 11 significant new information, then it, itself, has to 12 go to the Commission to seek a waiver to consider that 13 new information in the draft and final supplemental 14 environmental impact statements.
15 And as the staff reviews this application 16 and they look at it, we will look at the new 17 information, evaluate its significance, and if we do 18 find that it does rise to that level, then we'll ask 19 the Commission to -- for the Commission to consider it 20 in our environmental documents.
21 I think there was a part two to the 22 question.
23 JUDGE KENNEDY: Well, maybe I'll re-ask, 24 because if I understand where this is all going, let's 25 say the information does show up in the draft NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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52 1 supplemental environmental impact statement, that 2 would not be available for new contentions to the 3 Petitioner, and is not litigable?
4 MR. SMITH: Thank you. I think as a 5 general matter, we might have a slight disagreement 6 with the Applicant, we think, that all of the 7 Commission's generic determinations could be litigated 8 in an individual proceeding, on the condition that the 9 Petitioner submitted a waiver petition, to seek 10 Commission approval of the challenge of that 11 determination, in the proceeding.
12 In that sense, the determination in 51.53 13 (c) (ii) (L) is not different than any other one, and 14 you can submit a petition on that and challenge 15 whether or not there was new and significant 16 information as related to the Commission's previous 17 consideration about severe accident mitigation 18 alternatives.
19 JUDGE KASTENBERG: I would like -- I want 20 to come back to something over here, but we can take -
21 - I can hold it.
22 CHAIRMAN FROEHLICH: Well, finish, but 23 just let -- we want to hear from Mr. Roisman.
24 JUDGE KASTENBERG: Yes, just maybe a fine, 25 yet important point, you quoted the NUREG, about that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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53 1 if new and significant information changed the risk, 2 is the way I think you characterized it, then it might 3 be -- that it might be challengeable.
4 My understanding, in reading what the 5 Commission has said, that it's not that it's the risk, 6 because they've already determined that the risk is 7 small, but it is the balance between the cost and the 8 benefit that might change, and I say that may be a 9 subtle point, but it is a -- to me, at least, it is a 10 significant point, that it's the change in risk, 11 balanced against the cost of the mitigation, or some 12 new mitigation device, or what have you, that would be 13 permissible in a proceeding.
14 Again, you might argue, that well, because 15 of this Sub-Part L, they're exempt even from that.
16 I'm not so sure. That's what I would like to try to 17 get a sense of, in that sense, that it's really the 18 cost benefit that you have to look at.
19 MR. POLONSKY: Judge Kastenberg, you're 20 right, for that Pilgrim decision, that CLI 12-01.
21 JUDGE KASTENBERG: Right.
22 MR. POLONSKY: But in that case, that was 23 an admitted contention -- contentions, related to 24 severe accident mitigation alternative analyses and 25 the adequacy of those analyses, and once you get into NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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54 1 the analysis itself, the ultimate arbitrator for 2 whether or not a mitigation alternative is justifiable 3 to add, is that cost benefit analysis.
4 We are three steps removed from getting 5 all the way down into the details -of that. We are 6 looking at severe accident consequences, and we don't 7 even get into the SAMA analysis, in our view, until we 8 have determined that there is new and significant 9 information that would change the outcome of that 10 severe accident consequence analysis from "small", as 11 defined under Part 51 and 52, to moderate or large, 12 and if I could quickly clarify.
13 I tend to simply and say it's not 14 litigable. It's not litigable. But clearly, 2.335 15 exists to everything I am saying, and if there is a 16 waiver that is submitted and granted by the 17 Commission, then of course, it could be litigable, but 18 we don't have those circumstances here.
19 CHAIRMAN FROEHLICH: Mr. Roisman, let's go 20 back to two, and your view -- your view of the role of 21 the 1989 SAMDA analysis played vis-a-vis raising 22 Contentions 1, 2 and 3, at this point.
23 MR. ROISMAN: So, I must say you're a 24 little bit, I think, Shakespearean, after we've been 25 sitting here playing Hamlet without Hamlet, and I was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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55 1 glad to see that Mr. Polonsky decided to bring Hamlet 2 on the stage, by quoting to you from the 1989 SAMA.
3 It is a myth to say that the SAMDA, the 4 1989 SAMDA is not in this case. In fact, if it's not 5 in this case, and Exelon fails to meet its burden of 6 proof that it claims would give it an exemption under 7 51.53 (L), because that requires proof that there has, 8 in fact, been a prior SAMA analysis.
9 That is the condition for the exception to 10 be applied.
11 CHAIRMAN FROEHLICH: That requires proof, 12 that there was a SAMDA analysis in 1989? Can't we all 13 agree that a SAMDA analysis was prepared by the staff 14 in 1989?
15 MR. ROISMAN: They could offer that as a 16 stipulation. We would not agree to it, because it's 17 not a SAMDA analysis that 51.53(L) applies its 18 exemption to.
19 It's a prior analysis of severe accident 20 mitigation alternatives, and as we've argued in our 21 Contention 3, we think that has some meaning, and the 22 meaning is not' actually in 51.53. It's in all the 23 other regulations that the Commission has written 24 about what has to be done with alternatives, and it's 25 in the case that I cited in my opening statement.
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56 1 It is a requirement that you take a hard 2 look at mitigation alternatives. I submit that any 3 review of this document, the 1989 supplement, could 4 not tell what was done by giving a hard look.
5 On at least two occasions, the staff 6 explicitly says there are potentially cost beneficial 7 SAMA mitigation measures.
8 But they say, Applicant has submitted some 9 documents to us that suggest that the risk analysis is 10 overly conservative, and the staff goes onto say, "We 11 haven't evaluated that yet, but we're going to use the 12 fact that they submitted it to us, to say therefore, 13 these things that look like they might be cost 14 beneficial aren't."
15 Now, any other definition of hard look, 16 that's not a hard look, that's a duck, and that's what 17 is happening here.
18 So, number one, and by the way, in a 19 different Pilgrim decision, the Commission made the 20 observation that we don't take the Applicant at its 21 word.
22 The Applicant has told us that there is an 23 adequate SAMDA -- excuse me, severe accident 24 mitigation alternatives analysis that needs to come, 25 but they have to prove it first. We don't take them NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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57 1 at their word.
2 But let me step back from that for a 3 moment, because in a way, that really only gets us to 4 Contention 3, and now, for the moment, I want to focus 5 where I think you started with Contention 1, new and 6 significant information.
7 Let's identify what we know we agree 8 about. Applicant, NRDC and staff agree that new and 9 significant information exists, at least new 10 information, excuse me, new information that bears on 11 the 1989 SAMDA analysis, and that it's required to be 12 included in the environmental report.
13 We disagree about whether it's 14 significant. We also disagree about whether all the 15 new information that bears on that report has been 16 produced in the ER, but we don't disagree that if it 17 is new, it belongs in an analysis and an environmental 18 report, and the Applicant has provided one in its 19 report.
20 We also agree that the test of whether 21 it's significant or not depends upon the consequences 22 test, and I think the Commission -- and we quoted this 23 in our -- in our brief, in the petition at page 29, 24 the Union Electric Callaway Plant case, in which the 25 Commission said, this is their slip opinion at page NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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58 1 31, the new information must present "a seriously 2 different picture of the environmental impact of the 3 proposed project, from what was previously 4 envisioned".
5 Now, we submitted a declaration and by the 6 way, Dr. McKinzie has joined me to help -- we 7 submitted a declaration that describes in some detail, 8 all of the ways in which new information would be 9 significant here from looking at different accident 10 scenarios, looking at a broader range of potential 11 mitigation consequences, looking at the effect of 12 population, looking at the effect of meteorology, a 13 whole range of items that we claim, represent 14 significant, not just new, but significant information 15 because -- and the experts that prepared that 16 technical declaration, take you through comparable 17 plants, look at other plants and see what did those 18 plants find were severe accident mitigation 19 alternatives, and how are those different than what we 20 now see, in looking at the 1989 SAMDA?
21 So, I think we've met a burden that is at 22 least showing that there is a genuine dispute with the 23 Applicant about how much information is new and what 24 of the new information is significant, but we don't 25 disagree with them, that it is a consequences test.
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59 1 It has -- can't just be an abstract, that is a very 2 fine point, but it doesn't make any difference.
3 Where we disagree, and disagree 4 substantially, is whether or not we're entitled to 5 challenge the new and significant information that 6 they have put into their report, the environmental 7 report, and now, that the staff says might conceivably 8 show up in the draft environmental impact statement, 9 even arguably, a broader range of new information.
10 And they touched on it, in their own 11 argument, that have -- that says that something that 12 they assert in the environmental report is not 13 challengeable here, is a line of Commission decisions 14 that said when new and significant information is 15 challenge in order to move a Category 1 generic 16 finding to a Category 2 site specific finding, that 17 has to be done by rule-making, by challenge under 18 2.335, a variety of -- 2206 petition.
19 In other words, the generic findings are 20 sacrosanct, because they were made in a GEIS, and if 21 you want to change them for generic, you have to go 22 through one of the generic processes. We don't 23 disagree with that.
24 CHAIRMAN FROEHLICH: Your argument is that 25 they are Category 2?
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60 1 MR. ROISMAN: They're Category 2, and the 2 Commission has said they're Category 2, even when it 3 gave the exemption that Exelon is relying on here, 4 they call it a Category 2.
5 They don't say it's a Category 2, unless 6 the exemption applies, and then if exemption applies, 7 it's Category 1, nor could it be a Category 1, because 8 the Commission again, in the regulation, not in the 9 statement of consideration that went with the 10 regulation alone, not in the GEIS, the body of that 11 document, but in the regulation itself, tells us that 12 in order to be a Category 1, it has to be generic.
13 It's the whole -- that's why they call it generic 14 environmental impact statement.
15 We are not talking about a generic 16 problem. We are talking about a site specific issue 17 related specifically to this plant. There is no way, 18 short of the Applicant filing a 2.335 petition, which 19 they have not yet done, to seek a waiver of the 20 Commission's regulation on what constitutes a generic 21 finding. There is no way for them to take the 1989 22 SAMDA and turn it into a Category 1 issue. It's 23 Category 2.
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61 1 to a Category 2 issue is beyond the scope of a 2 hearing.
3 More importantly, when you read the 4 Commission's decisions, the Commission's position that 5 said, we can't challenge new and significant 6 information in an individual licensing proceeding, was 7 all based upon the fact that what you are challenging 8 it about, had to do with moving something from generic 9 to non-generic, from Category 1 to Category 2, and we 10 aren't doing that.
11 We are talking about what is already a 12 Category 2 issue. Therefore, we believe the new and 13 significant information issue is more than legitimate 14 in the proceeding. We've joined issue with the 15 Applicant about it, depending upon what the staff does 16 in the DSEIS, we're likely to join issue with them on 17 it, as well.
18 Now, there is another aspect of this, that 19 51.53(L) is not a prohibition. It doesn't say, "You 20 may not do a SAMA analysis, if you've done one 21 previously." It says you're not required to do one.
22 Fair enough.
23 What does that mean in the context of what 24 the Applicants did with its new and significant 25 information analysis in the analysis that it has NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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62 1 presented in the environmental report?
2 Well, if you look at that analysis, it 3 reads like a SAMA analysis. They take a look at 4 risks. They take a look at the consequences. They 5 balance them. They calculate, this is how much more 6 it would save in the way of, you know, some benefit to 7 the public, and this is much it can cost, in terms of 8 some damage to the public.
9 They've done, admittedly, a very 10 inadequate SAMA analysis, as part of their 11 ehvironmental report, in order to explain to you, why 12 this new information is not significant, as it's 13 related to the 1989 SAMDA.
14 So, we aren't really in the territory in 15 which the Applicant shows us, takes this document, 16 hands it to the Board and says, "This meets the 17 51.53(L) requirement," and sits down.
18 They said, "Well, there is some new 19 information we've got to look at," and they pick 20 through this document and they pick through the new 21 information and they give you an analysis.
22 What other name would you call it, except 23 an analysis of severe accident mitigation 24 alternatives?
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63 1 is whether or not we're going to get an opportunity to 2 challenge what they said, or whether that is going to 3 be shown here. I think that's it.
4 CHAIRMAN FROEHLICH: Staff or the 5 Applicant care to respond to what you've just heard 6 from the Petitioner?
7 MR. POLONSKY: Yes, Your Honor.
8 CHAIRMAN FROEHLICH: Okay.
9 MR. POLONSKY: Two points is I'd like to 10 first point out that the argument that Mr. Roisman 11 raised, I don't recall that being raised either in the 12 petition or the reply.
13 So, that is a brand new argument we're 14 hearing for the first time here, that our discussion 15 of new and significant information was not something 16 to meet the requirements of Section 4, but was 17 actually at SAMA analysis, and I'd like the Board to 18 note that.
19 The other is whether or not this a 20 Category 1. I had answered Judge Kennedy's question 21 by saying the Board did not need to find that it was 22 a Category 1, but I would like to walk through what we 23 think is the evidence that for Limerick, SAMA's are 24 Category 1, and I'll start with the GEIS, the generic 25 environmental impact statement NUREG-1437 on page 4-NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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64 1 122.
2 There is a discussion about those plants 3 that have -- with cooling ponds located in salt 4 marshes, and there are specific plants called out, 5 South Texas and Turkey Point, saying that ground water 6 quality is not a significant concern there because 7 ground water quality beneath salt marshes is too poor 8 for human use.
9 This issue is raised in Section 2, as an 10 exception, and these plants don't need to address 11 ground water.
12 A few sentences below, it says, 13 "Therefore, for plants with cooling ponds located in 14 salt marshes, this is a Category 1 issue."
15 So, clearly, there is precedent that when 16 something is accepted under Section 51.53(2), even 17 thought it's not L, it's a different provision, but 18 that is a Category 1 issue.
19 That is consistent with the page 5-116 of 20 the GEIS, which talks specifically about SAMA's, that 21 says, "Consequently, severe accidents are a Category 22 2 issue for plants that have not performed a site 23 specific consideration of severe accident mitigation,"
24 and submitted that analysis for Commission review.
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65 1 submitted, it's not a Category 2. Well, there are 2 only two categories. So, it has to be Category 1.
3 Then in the June 1996 Federal Register 4 notice, which issued these regulations, on page 28480, 5 in the third column on the right, it says, "Because 6 the third criterion required to make a Category 1 7 designation for an issue requires a generic 8 consideration of mitigation," as Mr. Roisman points 9 out, "the issue of severe accidents must be re-10 classified as a Category 2 issue, that requires 11 consideration of severe accident mitigation 12 alternatives provided this consideration has not 13 already been completed."
14 Again, it's Category 2 for those who 15 haven't, because the Commission has made a generic 16 determination that there are three plants out there 17 that already have done it, and they don't need to 18 address it again.
19 MR. SMITH: Judge?
20 CHAIRMAN FROEHLICH: Yes.
21 MR. SMITH: Is that for our response too?
22 CHAIRMAN FROEHLICH: Of course.
23 MR. SMITH: Thank you, very briefly. I 24 think that in this case, the issue of whether or not 25 SAMA's for Limerick are a Category 1 or Category 2 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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66 1 issue is a distinction without a difference, and that, 2 I think, goes to the nature of what a Category 1 issue 3 really is.
4 In Category 1 issues, a generic 5 determination is not challengeable in NRC proceedings, 6 not because of the call Category 1, and that has some 7 magical effect on the issue. It's Category 1 because 8 it's embodied in the Commission's regulations, 9 referring to the generic determination by the 10 Commission on the environmental impacts of that issue, 11 across all of the plants.
12 Likewise in this case, the SAMA regulation 13 51.53 (c) (3) (2) (L) represents a generic determination 14 by the Commission that if one SAMA analysis was done, 15 then a subsequent one need not be done at the time of 16 licensing renewal, and of course, the Commission 17 singles out Limerick, Watts Bar and Comanche Peak in 18 the statement of considerations, as examples of that.
19 But from the plain text of the regulation, 20 they're also applied to three reactors of the license, 21 such as Watts Bar Unit 2 or Vogtle, when they come 22 into license renewal down the road, or even a 23 subsequent license renewal.
24 So, it is a generic determination test and 25 applicability across potentially, many plants and for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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67 1 that reason, the generic determination in the 2 regulations does not put it challengeable at 3 proceedings, not without its call to Category 1 or 4 call to Category 2.
5 JUDGE KENNEDY: And I guess, and maybe 6 this is more of a semantics questions, but I'd like to 7 start with you, Mr. Smith.
8 The regulations really provide an 9 exemption of does not need to be submitted, as opposed 10 to does not need to be performed, and I think when I 11 have in my mind, the word performed, I'm back to new 12 and significant information and what goes into Section 13 5 of the ER.
14 I mean, on one hand, if there is no new 15 information, then probably 1989 is a technically very 16 sound document. If there is lots of that information 17 and it has a merit of -- a measure of significance, I 18 start to wonder, I do point out, the staff at least, 19 will take a hard look at it, and potentially refresh 20 the mitigation alternatives analysis in the draft 21 supplemental environmental impact statement.
22 I think, you know, I -- when the -- the 23 bridge was built, and I can walk across the bridge.
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68 1 me, to be clear, and when we get to Contention 2 and 2 3, which really challenges the 1989 SAMDA, I think 3 we'll have additional discussion.
4 But right now, the bridge is still in tact 5 for me, on whether the Applicant had an obligation to 6 submit a SAMDA analysis, and we'll talk more about, 7 down the road, whether there is any criteria we can 8 apply to whether that exemption is invalid for 9 Limerick.
10 But I mean, at least on the plain reading 11 of the regulation, it seems to me, they don't need to 12 submit it, but I'm all hung up on this new and 13 significant information, the scope of the new 14 information.
15 How did we select -- how did the Applicant 16 select the range of information, and I know I'm 17 looking at you and asking you this question, but this 18 is where the Board, I think, has got additional 19 questions on Contention 1, that -- how do we get to 20 what's in the application, and I'll turn to your right 21 quickly, but I think that is the question that sticks 22 foremost in my mind.
23 I mean, an honest attempt to assess new 24 information was made by the Applicant and submitted as 25 part of their ER. I think I'd like to entertain some NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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69 1 discussion, as to how the scope of that was 2 determined.
3 The basis of its significance on 4 consequence, I think Mr. Roisman has already agreed 5 that that is a good test. It seems like a good test, 6 to me.
7 So, I have no issue with, you know, using 8 that as a test for significance. But I do have some 9 questions about the breadth of new information. How 10 did we get to what is in the application today, and 11 now that I'm looking at you, I think I'd like to turn 12 possibly to Mr. Polonsky, and see if we can -- if I 13 can rewind and try to summarize.
14 I'm really looking for some clarification 15 on the breadth of the material that's in the ER 16 Section 5. How did we get to those specific items?
17 I'm willing to agree that testing out 18 significance through consequences is okay, but I think 19 if I look across the petitions from NRDC, there looks 20 to me, to be additional new information that they have 21 raised questions on, that I don't see in the ER, 22 things like additional mitigation alternatives, and I 23 know you've been trying to help me understand why we 24 never get to that phase, but if we open up the door a 25 little wider, until we get to some things of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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70 1 significance and does the ball start rolling down hill 2 a little bit.
3 MR. POLONSKY: Well, I am hoping to 4 unburden you with this concern, but --
5 JUDGE KENNEDY: The bridge is still in 6 tact.
7 MR. POLONSKY: -- by suggesting that there 8 is no need to go here, and in fact, the Commission has 9 said you're not allowed to go here, NRDC, that there 10 is no litigation of these, or the adequacy.
11 They can certainly submit comments on the 12 draft -- I mean, the final SEIS, but they cannot 13 litigate it.
14 As to exactly how these particular ones 15 were selected, you know, if I could -- if we're going 16 to be taking a break, I can confer with my client, and 17 get you a concise response on that.
18 JUDGE KENNEDY: I think in the vain of 19 humoring the Board, it would be appreciative if you 20 could at least give us a bit of a view into how the 21 scope was -- the breadth or the range of what new 22 information was assessed.
23 MR. POLONSKY: We'll do that.
24 JUDGE KENNEDY: And to give you a hint, 25 you may want to focus a little bit on some of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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71 1 material that's in Contentions 2 and 3, that start, to 2 me, to look like new information that wasn't 3 considered, or is not present in the ER, as it's 4 written today, and then we'll decide some other time, 5 whether we can litigate it.
6 But help us get through that part of that 7 part of the discussion.
8 CHAIRMAN FROEHLICH: Perhaps, since it is 9 about 10:30 a.m., we'll take a 10 minute break, and we 10 can come backi and I think when we come back, the 11 Board will like to focus on the concept of new and 12 significant information, how the Applicant chose the 13 four elements that they looked at.
14 Staff, I'd like to hear, when we get back, 15 how the staff will look for or determine what our new 16 -- putting aside significant at this point, what are 17 new information, and also, from the Petitioner. I 18 think that is where we'll pick up 10 minutes from now.
19 Okay, thank you.
20 (Whereupon, the above-entitled matter went 21 off the record at approximately 10:30 a.m. and resumed 22 at approximately 10:40 a.m.)
23 CHAIRMAN FROEHLICH: Please be seated.
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72 1 environmental impacts of license renewal be discussed, 2 any environmental impacts of which the Applicant is 3 aware.
4 Mr. Polonsky, have you had a chance to 5 meet with your folks, to determine how the company 6 approaches the new information that may have arisen in 7 the course of the preparation of the ER?
8 MR. POLONSKY: Yes, Your Honor.
9 CHAIRMAN FROEHLICH: Thank you.
10 MR. POLONSKY: In the environmental report 11 in Section 5.3 page 5-4, specifically Section 5.3.1, 12 there is a section entitled 'process to identify new 13 information', and I did ask my client for some 14 clarification about what exactly happened here behind 15 the scenes, to give you a flavor for how this process 16 to identify new information proceeded.
17 I was informed that experts in the field 18 of risk management were asked to review the three 19 documents that are cited here, on page 5-4, a review 20 of the supplement to NUREG 09.74, a review of the June 21 1989 PRA update, which is a -- lists here as PECO 22 document, and review of the Limerick Generating 23 Station probabilistic risk assessment PRA model and 24 updates to that model since publication of the 25 supplement in 1989.
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73 1 So, a series of documents that exist since 2 1989 in PRA space were reviewed.
3 The review was not focused on every risk 4 item, but those that would be low-threshold, and that 5 is what then percolated into the items that were 6 looked at for new information, to determine whether 7 they were significant, and the thought was if they 8 were low-threshold, then they didn't meet a 9 significance determination, then all the others ones 10 that were not low-threshold clearly, didn't need to be 11 looked at, and that was the approach.
12 Clearly, it relies on expert judgement, 13 which is why they used these experts in risk 14 management.
15 JUDGE KENNEDY: So, the context of the 16 environmental report, the way it's written, there is 17 the process that was gone through, and that was 18 described, which you pointed out.
19 CHAIRMAN FROEHLICH: 5.3.1.
20 JUDGE KENNEDY: And the stuff that 21 percolated as new information was assessed and then 22 discussed in the ER.
23 I guess, there is no discussion of 24 pleadings that weren't looked -- and I'm not quite 25 sure how to ask this, but some of the things that NRDC NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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74 1 has raised seem relatively logical to me, that would 2 have been looked at as part of a review of new and 3 significant information for the Limerick SAMA 4 analysis.
5 I guess I'm really probing to see if there 6 are things that were looked at, that were not viewed 7 as important, but not documented as not important, and 8 I mean, are we crossing in the night here? Has NRDC 9 raised issues that Limerick has looked at and chose 10 not to document, or is it a case of, it hasn't been 11 looked at, and of course, part of the record, it's not 12 in front of us, so, I can't --
13 I mean, I think we're looking for things 14 like mitigation alternatives. Are there other 15 mitigation alternatives, that would have had a 16 different threshold, that could have been looked at?
17 Why isn't that considered new information?
18 They've raised questions on methodology.
19 The overall methodology is different today than it was 20 in 1989. Why isn't that new information?
21 Was it looked at? I mean, it may have 22 been looked at, and you know, Exelon shows to the 23 staff, the approach that was taken in 1989.
24 So, those are the kinds of things that I'm 25 thinking about.
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75 1 MR. POLONSKY: Judge Kennedy, the 2 vocabulary, the nomenclature that you're using, I 3 think is inconsistent with what Exelon did.
4 JUDGE KENNEDY: Okay.
5 MR. POLONSKY: We were not looking at 6 severe accident mitigation alternatives.
7 As I mentioned before, the initial focus 8 of new and significant information is on severe 9 accident consequences, and whether there is new and 10 significant information for that analysis.
11 If there was significant information to 12 change the severe accident consequences, then 13 hypothetically, the next step would have been to look 14 at potential severe accident mitigation alternatives.
15 But that was not done here, because there 16 is no -- the experts identified low-threshold items 17 that they thought would change the -- could be 18 possible -- could possibly change the outcome, and 19 since those did not result in significant information, 20 all the other ones that you're concerned about, that 21 aren't documented here, were never laid out.
22 JUDGE KENNEDY: Yes, I guess and that --
23 you're right, that the terminology I'm using, or the 24 perspective I'm coming from is different than the way 25 the environmental report is drafted.
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76 1 I'm taking a very broad view of what is 2 new information. I mean, in some ways, it's a way to 3 refresh something that had been done in the past with 4 new information, since the time that it's performed, 5 to in essence, make it current and make it, as I'm 6 hearing it, in line with what the staff is going to 7 attempt to do, in looking at new information.
8 So, I see a disconnect there. I mean, 9 they're not focused on severe accidents. I hear them 10 focused on severe accident mitigation alternatives.
11 MR. POLONSKY: That is correct, and we 12 hear the Petitioner talking about that, but we don't 13 believe that is the obligation of Exelon to perform.
14 In addition, all of this is -- should be 15 viewed through the lens of NEPA, which is not a safety 16 analysis, but an environmental analysis, that is 17 subject to a rule of reason, and you know, we'll get 18 to that more, when we talk about Contention 4, but 19 even within this space of having experts in risk 20 management, review probabilistic risk assessments that 21 have been performed for the plant from, you know, day 22 one until today.
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77 1 that is perfectly within the rule of reason, and there 2 is no requirement to identify with a 95 percent 3 certainty or two orders of magnitude, none of that 4 comes into play in NEPA.
5 That would be looking at worse case 6 scenarios, which frankly, the Supreme Court has said, 7 you are -- do not need to look at.
8 JUDGE KENNEDY: So, again, we're back to, 9 the bridge is starting to develop a crack. We're back 10 to severe accidents, is the way I'm hearing it.
11 Maybe I'm -- I don't want to put words in 12 your mouth, but I am hearing severe accidents, and 13 that the new information is only relevant to severe 14 accidents, and so, we're focused back on the Category 15 1 issue, yet, there is a Category 2 issue looming out 16 there, which is severe accident mitigation 17 alternatives, albeit you've been granted an exemption 18 for submitting one as part of the application, but I'm 19 struggling, the bridge is breaking in the obligation 20 to look at new information relative to the SAMA 21 analysis, as opposed to the severe accident analysis.
22 I guess I see it as two obligations, or a 23 two-part obligation, and that is why I'm really 24 curious about the breadth of the new information. I'm 25 feeling it should be broader, but you're bringing it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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78 1 back to, it's okay the way it is, because it's severe 2 accident.
3 MR. POLONSKY: It's looking at the severe 4 accident consequences, because if the consequences are 5 not -- are acceptable, as they are, you don't need to 6 go' into mitigation alternatives.
7 I mean, let's take an analogy of something 8 completely unassigned to severe accident space. You 9 know, let's look at Methow Valley and the facts of 10 that case.
11 I think it was a downhill ski resort, that 12 was looking to be expanded and some animal that was 13 trying to be protected, and that you need to mitigate 14 the way the runs would be designed, or whatever it 15 was, to protect the animal.
16 Well, if the animal wasn't there, we 17 wouldn't need to do a mitigation analysis. We would 18 simply look at the runs and you would -- maybe it's a 19 bad analogy.
20 JUDGE KENNEDY: Yes.
21 MR. POLONSKY: It is a bad analogy.
22 JUDGE KENNEDY: That doesn't convince us 23 of anything.
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79 1 a identified problem, and the severe accident 2 consequences are the analysis to say, do I have an 3 issue or do I not have an issue? Do I have a problem 4 or do I not have a problem?
5 If I have a problem, I have to look at 6 mitigating that problem. But our analysis is 7 suggesting, there isn't a problem. So, I don't need 8 to go further. I don't have anything of significance.
9 So, I don't need to go and look at mitigating that 10 problem.
11 JUDGE KENNEDY: Let's take it a little 12 step further. Let's -- severe accidents is yet only 13 one of the Category 1 issues. What about all of the 14 other stuff, all sprinkled through that table, is --
15 how was -- wh'ere does that fit in this picture?
16 I mean, you -- we've gone quickly to the 17 one element of that table.
18 MR. POLONSKY: Yes.
19 JUDGE KENNEDY: Where are the other 20 guidance? Where is the rest of the stuff?
21 MR. POLONSKY: We could use an example of 22 endangered species.
23 JUDGE KENNEDY: Yes.
24 MR. POLONSKY: If, at the time the plant 25 was built, we had no endangered species and we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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80 1 concluded that the risks to endangered species were 2 small, now, at the license renewal phase, someone has 3 said, "Hey, there is some protected bird," that's new 4 information. We hadn't considered it before, and we 5 would evaluate for significance, even though that 6 issue might be a Category 1 issue.
7 Then we would say, "Do we need to -- is it 8 a significant issue," yes? Do we need to put in any 9 mitigation to protect that species? We would be doing 10 that at the license renewal phase, even though it 11 might be a Category 1 issue.
12 JUDGE KENNEDY: Would that go on Section 13 5 of the environmental report or is that somewhere 14 else in the environmental report?
15 MR. POLONSKY: It would go in Section 5, 16 which is assessment of new and significant 17 information.
18 JUDGE KENNEDY: So, when we look at 19 Section 5, we're seeing the final digestion of all of 20 Exelon's review of information?
21 MR. POLONSKY: Yes, and we've -- and we 22 quote the obligation in C34, at the very beginning, 23 saying any information of which we are aware. It's 24 not limited to SAMA's, or severe accident 25 consequences.
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81 1 JUDGE KASTENBERG: Just coming back to 2 your question, so, in Section 5, 5-2, one of the 3 choices was to look at radiological ground water 4 protection, okay.
5 Now, that is -- I don't believe that is 6 covered by Section L, what we've been calling Capital 7 L.
8 So, would 5.2 be challengeable, in your 9 view?
10 MR. POLONSKY: If it were a Category -- I 11 haven't studied this particular section, I can't -- if 12 it were a Category 1 issue, it would not be 13 challengeable in the license renewal proceeding, 14 absent a waiver, because it's new and significant 15 information on a Category 1 issue.
16 JUDGE KASTENBERG: So, is ground water 17 protection Category 1 or Category 2?
18 MR. POLONSKY: I have to look at Part 51 19 in Appendix B. I believe it's Category 2, but I will 20 confirm that.
21 JUDGE KASTENBERG: So, it's Category 2.
22 If NRDC would have challenged that, would that --
23 MR. POLONSKY: We would not have been able 24 to use the defense of the Pilgrim and Vermont Yankee 25 license renew cases.
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82 1 JUDGE KASTENBERG: You would find some 2 other defense for it?
3 CHAIRMAN FROEHLICH: They would try very 4 hard.
5 JUDGE KASTENBERG: Or you would at least 6 attempt to find a defense for it?
7 MR. POLONSKY: I certainly would try, Your 8 Honor.
9 JUDGE KASTENBERG: Yes.
10 CHAIRMAN FROEHLICH: And just to wrap up 11 Judge Kastenberg's question.
12 The reason you'd have to look for a 13 different defense is because it shows up in the Sub-14 Part A of Appendix B table as a Category 2 item, is 15 that correct, Mr. Polonsky?
16 MR. POLONSKY: If it is in -- as a 17 Category 2 item, then it would not be subject to the 18 exception language in the case law that we've been 19 discussing this morning.
20 CHAIRMAN FROEHLICH: Okay.
21 JUDGE KASTENBERG: And just one last 22 thing, I just want to make sure I understand your 23 argument regarding new and significant information and 24 the exemption.
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83 1 but just to kind of step through it again.
2 As I understand it, and you cited two 3 other -- I think two other cases where there was a 4 challenge to a Category 1 versus new and significant 5 information, we went all the way up to District Court, 6 and the Court ruled that it was not challengeable 7 because it was Category 1, even though it was new and 8 significant information, is that right?
9 MR. POLONSKY: Yes, Your Honor, it was the 10 Court of Appeals, but yes, it was a Category 1 issue 11 related to spent fuel pools.
12 JUDGE KASTENBERG: Right. So, it seems to 13 me, at least at the moment, there is a leap between 14 that and the Sub-Part L, which is the exemption.
15 So, how do I -- using Judge Kennedy's 16 analogy, what is the bridge? What is -- what gets me 17 that leap from a Category 1, when we know that -- and 18 I think everyone agreed, that SAMDA analyses are 19 Category 2 except for the exception. But how do I 20 make that leap?
21 MR. POLONSKY: Okay, there are two ways 22 you could make the leap.
23 JUDGE KASTENBERG: Could make it, yes.
24 MR. POLONSKY: The first is, you could 25 conclude, as we've argued, that for Limerick, this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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84 1 issue is a Category 1 issue, and I've cited you 2 provisions of the GEIS and the 1996 rule-making, which 3 support that argument.
4 However, you don't need to find that it's 5 a Category 1 issue. We argue in the alternative, in 6 our answer, that the nomenclature is irrelevant, as 7 the staff has also articulated, and that is that once 8 the NRC has issued a rule, that the general principle 9 is, you can't challenge that rule in a licensing 10 proceeding, and this line of case law with Vermont 11 Yankee and Pilgrim stand for the proposition that new 12 and significant information submitted about an issue 13 that is accepted by rule, whether Category 1 or in 14 Section 2, is not challengeable in a license renewal 15 proceeding, absent the waiver from the Commission 16 under 2.335.
17 JUDGE KASTENBERG.: And do you have a 18 response to that, because to me, this is a pivotal 19 point, in the question that we -- that is at stake 20 here.
21 MR. ROISMAN: First, you can read this 22 Section 51.53L all you want, and you will not find a 23 statement in there that categorizes this as Category 24 1, that's number one.
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85 1 talking about is talking about an obligation that's 2 imposed on the Applicant to perform something.
3 Ultimately, this issue, as you well know, 4 is going to morph into an issue about what the staff 5 does, and the staff does, traditionally, rely on the 6 Applicant's SAMA analysis, but it's the staff and the 7 staff's obligation to do it.
8 There is nothing that says, that if the 9 staff has new and significant information that relates 10 to severe accident mitigation alternatives, that it is 11 not suppose to deal with that in the DSEIS, and I'm 12 sure we reference that.
13 We approve -- if we disagree with what 14 they do in challenging this, that is the nexus of it.
15 The third point is that what is new and 16 significant information is not allowed to be 17 challenged where there has been a prior generic 18 finding for the -- in an individual licensing 19 proceeding, because it would be inappropriate.
20 This is not 51.53L, is not a generic 21 finding with regard to' Limerick or Comanche Peak or 22 any other nuclear plant.
23 So, there is no generic finding. So, 24 let's step back for a minute and ask the question, 25 what reason would the Commission have had for wanting NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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86 1 to preclude someone from challenging new and 2 significant information if it related to SAMA or SAMDA 3 analysis, that could fit within the logic of the 4 cases, and there isn't.
5 There is no reason why this issue, the 6 very questions that Judge Kennedy raised, about 7 alternative mitigation issues, shouldn't be subject to 8 challenge, just as alternative ways of dealing with 9 other issues at the plant, would be subject to 10 challenge.
11 Their only policy reason would be, "Well, 12 we've already looked at that question substantively, 13 and we put it to bed," and if you want to question our 14 putting it to bed, with new information, you have to 15 go through our regulatory process, to ask us to change 16 the regulation.
17 No one has put this to bed. The 1989 18 SAMDA has never been mitigated as applied to licensing 19 renewal. The Commission, in its statement of 20 consideration that went along with the 1996 license 21 renewal rules made reference to the Limerick 1989 22 SAMA. There is no analysis. There is no record in 23 front of the Commission. It was not part of any 24 notice that was given to the public, that, "Oh by the 25 way, along with all the other things we're doing in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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87 1 the rule-making, we're also going to rule on the 2 adequacy of significant mitigation alternative 3 analysis done for three plants."
4 So, nobody had a chance or was charged 5 with, "Why didn't you show us then, and complain?"
6 Well, there was no notice that that was going to be 7 considered. No one said, ."We're going to decide on 8 the merits of the Limerick question."
9 Now, before we get to Contention 3, which 10 is where this is more relevant, it bears on the new 11 and significant information question in Contention 1, 12 because it gets us, once again, to the question, if 13 you don't challenge it here, where would you have your 14 hearing, with regard to this question?
15 Why would the Commission have cut them 16 out, if you will, and I want to add one note, that 17 goes to Judge Kennedy's question about, well, how did 18 we end up with only looking at this piece of new 19 information and not these other ones, and I think that 20 Counsel pointed it out, in the section of the ER, 21 Section 5.3.1, the Applicant says, "For purposes of 22 this review, new information is designed as 23 information indicating a potential change in the 24 consequences of severe accidents."
25 When we talk about consequences, and when NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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88 1 I think the Commission talks about consequences of 2 Callaway, they mean when it changed the outcome, not 3 when it changed the outcome in just one respect.
4 So, the addition of these mitigation 5 measures that our experts have identified, that now 6 would apply to be looked at for BWR of this type, that 7 were not looked at in 1989, is new information and we 8 believe significant consequences, because if the 9 accident consequences remain exactly the same, new 10 ways to reduce those consequences.
11 I thought Mr. Polonsky's use of Methow and 12 the analogy was a good one. The endangered species 13 that we're talking about that was present in 1989 are 14 the eight-million who live within 50 miles of the 15 plant. It's going to be more like 10-million people.
16 But the endangered species is still going to be there.
17 So, the mitigation alternatives analysis 18 says, accept this level of consequences you do -- we 19 challenge the level of the consequences, all of them, 20 accept this level of consequences and then see if it's 21 cost beneficial to mitigate those consequences, even 22 further than the safety requirements that the 23 Commission would say, by doing certain things, that 24 end up costing you only this amount, and gaining that 25 amount in economic effects.
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89 1 So, when we talk about consequences, we're 2 talking about both aspects of those, and the new 3 information that the Applicant looked at was, as this 4 points out, and as we pointed out in our petition, 5 narrowly limited, only to accident consequences, and 6 we discussed those, and there are some of our points, 7 which say the accident consequences could be greater 8 than what the value is, and also, based on the issue.
9 But there is a separate piece that says, 10 also that expanded alternatives that would mitigate 11 those consequences shouldn't be assumed.
12 JUDGE KASTENBERG: Is there any -- as Mr.
13 Polonsky did, -is there any case law or regulations 14 that would support the technical and the logical 15 arguments that you give?
16 MR. ROISMAN: That support the view that 17 new and significant information should be subject to 18 the review?
19 JUDGE KASTENBERG: Yes.
20 MR. ROISMAN: Only in the sense that the 21 case law that says it isn't is limited to a situation 22 that doesn't fit here.
23 -I don't think the Commission has 24 explicitly addressed, to my knowledge, the question of 25 whether new and significant information about a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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90 1 Category 2 issue would be litigatable in the licensing 2 proceeding if someone disagreed with the Applicant's 3 treatment of that item, in their environmental report.
4 To my knowledge, that has not been litigated.
5 However, if you go back into the NEPA case 6 law, then cases like Methow Valley, that say that you 7 must do a thorough evaluation of severe accident 8 mitigation -- I'm sorry, of mitigation alternatives, 9 not severe accident, of mitigation alternatives, that 10 case law would say that if the mitigation alternatives 11 or consequences that weren't adequately looked at 12 previously, then they have to be looked at now.
13 So, NEPA and case law under NEPA would 14 say, you have to take a look at it. So, that would be 15 the law, like the specific application of that to an 16 NRC proceeding by the NRC, I'm not aware of.
17 CHAIRMAN FROEHLICH: Perhaps the NRC staff 18 could address both the last comment and also, the 19 approach taken by the NRC staff, in their review of 20 new and significant information, and the preparation 21 of the DSEIS, or the EIS process.
22 MR. SMITH: Thank you, Judge Froehlich.
23 I think the NRC staff disagrees with both the 24 Petitioner and the Applicant, in some respects.
25 First off, we view the Commission's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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91 1 regulation and determination of 51.53 (c) (2) (L) as 2 being a generic determination, that applies to 3 Limerick facility, as well as other facilities, and 4 the reason for this goes back to the 3 r, Circuit's 5 holding in the Limerick case.
6 In that case, the 3 rd Circuit, as we've 7 discussed in our briefs, held that severe accident 8 mitigation alternatives are a necessary component of 9 NEPA consideration for reactor license application, 10 such as this one, and NEPA applies to every major 11 Federal action, including license renewals.
12 Therefore, when the Commission has 13 permanently excused facilities from conducting a 14 second SAMIA, analysis if one had already been 15 completed, they were, in effect, making a generic 16 determination that must meet the -- NEPA's hard look 17 requirement.
18 Now, therefore, we view that encompassing 19 a generic determination, which of course, I think goes 20 into the second point.
21 The new and significant information in 22 Federal case law, only really applies to prior 23 environmental determinations and environmental impact 24 statements, and that originated with the Marsh case, 25 and what you're looking at in those cases is, whether NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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92 1 or not new and significant prior to the supplement in 2 existing environmental impact statement. It sort of 3 gets thrown around a lot in NRC license renewal 4 proceedings, because there is several environmental 5 impact determinations in the GEIS that must be looked 6 at, and if necessary, updated in the supplemental 7 environmental impact statement for a given facility.
8 So, in that sense, it only really has 9 meaning to talk about new and significant information 10 if you're talking about a previous determination of an 11 environmental impact.
12 Now, as the staff goes forward and looks 13 for new and significant information with respect to 14 Limerick, we disagree with the Applicant.
15 We don't think the relevant inquiry, and 16 we explained this in our brief, is whether or not 17 information applies to 1989 SAMDA analysis, but 18 rather, we think the important inquiry is whether or 19 not new information applies to the Commission's 20 generic determination in the regulations, as explained 21 in the accompanying statement of considerations.
22 In that sense, as we've explained, that 23 determination rested not only on the prior 1989 SAMDA 24 analysis, but also, a series of studies the Commission 25 had undertaken, including the individual plant NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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93 1 examination, including the individual plant 2 examination for external events, and including the 3 containment performance improvement program.
4 So, we'll be looking for new and 5 significant information with respect to the 6 understanding of severe accident mitigation contained 7 in those studies. So, not just in 1989 SAMDA 8 analysis, but also, those studies, as well as the.
9 Commission's understanding of severe accident 10 mitigation, in general at the time, found in that 11 regulation, both, I guess, on a slight Limerick basis, 12 as well as an across the board basis, to see if the 13 regulation is still valid.
14 As we're looking for new and significant 15 information, we'll be guided by several sources of law 16 and precedent to define and determine that -- in terms 17 of that, and most importantly, as other Counsel has 18 pointed out today, the Commission itself has defined 19 the scope of that test in Callaway, saying that it 20 presents a 'seriously different picture of the 21 environmental impact of the proposed action from what 22 was previously envisioned.
23 The Commission has provided a little more 24 explanation for that, in the private fuel storage 25 case, CLI-603 is the case number for that one, and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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94 1 said that information is new and significant, and I 2 quote, "when it raises a previously unknown 3 environmental concern, but not necessarily when it 4 amounts to mere additional evidence supporting one 5 side or the other of the disputed environmental 6 impact".
7 I think significant for our purposes here 8 the Board has recently struggled with a similar issue, 9 in the Pilgrim cases, the Board has considered how the 10 re-opening standard applies to a SAMA contention, and 11 one element of the re-opening standard is that the 12 issue must raise a significant issue, and the 13 Commission has stated that on environmental 14 contentions, the test for significance is akin to the 15 test for supplementing the environmental impact 16 statement, which is, it must present a seriously 17 different picture of the environmental impacts of the 18 proposed action.
19 The Board, in that case, did apply it to 20 the SAMA analysis and I think the best take-away from 21 those cases for the Board is, that the -- the Pilgrim 22 Board, Judge Abramson, who was for the majority, and 23 Judge Young, was that it can't just be speculation, 24 that under the SAMA rules, somehow become cost 25 effective.
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95 1 Of course, as Mr. Roisman pointed out, 2 there has been considerable Federal case law, most 3 notably the Marsh case, that further defines the scope 4 of new and significant information and the staff has 5 guidance, as well.
6 Reg Guide 4.2, which covers the 7 preparation of SEIS for applications to renew the 8 power plant operating licenses, explains that new and 9 significant information is information that identifies 10 a significant environmental issue that was not 11 considered in the GEIS, and consequently, not codified 12 in Appendix B, Sub-Part A of 10 CFR 51, or information 13 that was not considered in the analysis summarized in 14 NUREG 1437.
15 Therefore, as the staff goes forward and 16 tries to -- I guess I should also point out too, that 17 when it's looking for actual sources of information, 18 that staff consider what's in the ER and will also 19 consider what's in the petition to intervene, and as 20 well as the scoping comments that I alluded to earlier 21 today, would consider those, as well as any other 22 information that comes to our attention, to determine 23 if it meets what is, frankly, a very high standard of 24 new and significant information, that presents a 25 seriously different picture of the environmental NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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96 1 impacts of the proposed action.
2 I'm not sure that the staff would go as 3 far as the Applicant has, to say that only information 4 that calls into question the Commission's 5 determination, that a severe accident impact would be 6 small, would qualify as new and significant 7 information, as the SAMA analysis, but I think also, 8 the Commission's precedent in EFS, as well as how the 9 Board approached the issue in Pilgrim indicates that 10 in the staff's view, it would be something that went 11 beyond simply identifying the other cost beneficial 12 SAMA, as to a more serious -- a more serious picture 13 than the consequences than just demonstrating what is 14 essentially materiality of the SAMA contention.
15 So, as to how the staff is going to 16 approach it, we haven't published our DSEIS yet. So, 17 we can't say. I think categorically, what information 18 would be or would not, be that is the frame work we 19 intend to use.
20 CHAIRMAN FROEHLICH: I think I hear you 21 saying that you'll apply a rule of reason as you go 22 through this, and I think you also imply that it's 23 generally broader than just the consequence of that, 24 is that fair?
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97 1 will apply a rule of reason.
2 JUDGE KENNEDY: But your starting point is 3 broader than the Applicant has communicated here. I 4 don't want to put words in your mouth, but I thought 5 that is what I heard you say.
6 You're going to start from the -- the 7 current environmental impact statement, as your 8 starting point, to consider new information.
9 MR. SMITH: Yes, Your Honor, sort of to 10 borrow Mr. Roisman's analogy, in the staff's view, the 11 1989 SAMA isn't -- might be Hamlet in the play, but 12 Hamlet is not a one act -- a one person play.
13 There is many characters in the play and 14 we're going to look at the other studies the 15 Commission relied on in its statement of 16 considerations that support the regulation, including 17 the IPE, the IPEEE, and we think those apply.
18 JUDGE KENNEDY: Which is, sounds to me 19 like more information than Limerick has considered, in 20 their environmental report.
21 MR. SMITH: In the staff's view, it is 22 more -- it's later information. The question is not 23 1989 or 1996 for us, and we'll look at how the 24 Commission's understanding of those studies, 1996, as 25 described in the statement of considerations, would be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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98 1 impacted by new and significant information, and that 2 is described in great deal in our brief.
3 MR. POLONSKY: Your Honor, if I could 4 clarify. In Section 5.2.1, it's identifying new 5 information.
6 What the experts looked at was more than 7 just the 1989 document. There are three bullets here, 8 three bulleted documents and the first is the 1989 9 document, but the third, although it actually has a 10 NUREG 0974 in 1989 language in it, it says, "Review of 11 Limerick Generating Station PRA, probabilistic risk 12 assessment model and updates to that model since 13 publication of that document."
14 So, there are much more recent documents 15 that were looked at, for purposes of new and 16 significant information, for severe accident 17 consequences.
18 JUDGE KENNEDY: Again, only through the 19 lens of severe accident consequences.
20 MR. POLONSKY: That is because this 21 Section 5.3 is severe accidents. The prior sections 22 talk about new and significant information for other 23 areas.
24 JUDGE KENNEDY: Okay, now, I am getting 25 confused, because in the answer to Judge Kastenberg's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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99 1 question, about the ground water mitigation, that 2 would go in Section 5.
3 MR. POLONSKY: Yes, five is four --
4 JUDGE KENNEDY: And it's actually in --
5 MR. POLONSKY: Oh, I'm sorry.
6 JUDGE KENNEDY: So, it's beyond severe 7 accidents.
8 MR. POLONSKY: Yes.
9 JUDGE KENNEDY: Okay.
10 MR. POLONSKY: Section 5 is assessment of 11 new and significant information, generically.
12 JUDGE KENNEDY: Okay.
13 MR. POLONSKY: Section 5.1 is a background 14 discussion, 5.2 is radiological ground water 15 protection, 5.3 is severe accidents.
16 JUDGE KENNEDY: No, I clearly mis-heard 17 you.
18 MR. POLONSKY: Okay, I'm sorry, I am glad 19 we cleared that up.
20 JUDGE KENNEDY: What goes in Section 4, 21 then?
22 MR. POLONSKY: What was in?
23 JUDGE KENNEDY: Section 4?
24 MR. POLONSKY: I wasn't quoting to Section 25 4. I was quoting to page 5-4.
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100 1 JUDGE KENNEDY: Oh, I see, okay. Maybe I 2 should draw that. What I heard is that in response to 3 my question, you said that would go in Section 4, 4 because this section is new and significant, okay.
5 MR. POLONSKY: I'm sorry, but hopefully, 6 we're on the same page now.
7 JUDGE KENNEDY: We're still focused on 8 consequences, in Section 5, for severe accidents.
9 MR. POLONSKY: Yes.
10 JUDGE KENNEDY: So, in spite of, yes, you 11 did the -- the Applicant did look at more information 12 than just the 1989 SAMDA, it did not consider, for 13 argument sakes, additional mitigation measures.
14 MR. POLONSKY: Correct, individual 15 mitigation measures was not the focus of the analysis.
16 JUDGE KENNEDY: Because that is not new 17 information?
18 MR. POLONSKY: No, because our view is, 19 you don't get there unless you have identified a 20 significant change.
21 JUDGE KENNEDY: But we're back to what is 22 new information. Why isn't that new information?
23 MR. POLONSKY: Well, it is --
24 JUDGE KENNEDY: For argument sake, you 25 could come up with an alternative that has a lower NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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101 1 threshold, than the alternatives that were visited in 2 the 1989 SAMDA analysis.
3 I think that is what is troubling you, is 4 that by not looking at it, your threshold is where it 5 was in 1989.
6 MR. POLONSKY: Okay.
7 JUDGE KENNEDY: I think that I what is 8 bothering you. I don't see why that isn't new 9 information.
10 MR. POLONSKY: There are -- the 1989 SAMDA 11 document, which is a supplement to the FES, is 12 Exhibit-A, but there is also Exhibit-B and Exhibit-C, 13 and those are the other bullets in Section 5.3.1, and 14 under Exhibit-C, which are all of the risk assessment 15 model and updates since 1989, are a whole host of 16 analyses, since 1989.
17 And so, the experts are looking not just 18 at the 1989 document, but looking at these other PRA 19 updates and they may already include mitigation 20 alternatives.
21 I mean, we could look at what other things 22 were implemented at the plants over time, but that 23 doesn't necessarily mean that they need to be roped 24 into or retro-fitted back to a 1989 SAMDA.
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102 1 is troubling me. That is an example of information 2 that may have been looked at and considered under 3 those two bullets. It doesn't become visible at the 4 ER level, and that goes back to a previous question.
5 There may be information that was looked 6 at, that was -- that, through the process, is excluded 7 from documentation in the ER, and again, if what 8 you're telling me is one of those bullets has 9 additional mitigation measures in it, I'm struggling 10 to know how I would know that.
11 MR. POLONSKY: Well, it's -- it's a two-12 step process. The focus -- the first step is on 13 whether there is a change in consequences.
14 If there is a change in consequences, then 15 you move to, how do I mitigate that change in 16 consequence?
17 JUDGE KENNEDY: As opposed to a change in 18 threshold?
19 MR. POLONSKY: A change in threshold?
20 JUDGE KENNEDY: A different mitigation 21 alternative?
22 MR. POLONSKY: Well, that would be 23 starting at the end of the process and trying to work 24 your way back, and the rule of reason, I mean, if I 25 were a Petitioner, I could come up with 1,000 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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103 1 mitigation alternatives that I say you should be 2 looking at but --
3 JUDGE KENNEDY: Well, I think it suggested 4 a few, under the GEIS of new information.
5 MR. POLONSKY: Right, but the rule of 6 reason says that we don't even get to additional 7 mitigation steps unless we have a change in the 8 consequence of what was previously analyzed, and that 9 that new and significant information is not 10 challengeable in the license renewal proceeding.
11 JUDGE KENNEDY: But let's try it a 12 different way. I mean, you've made a very convincing 13 argument, that the SAMDA A) is not in the application, 14 there is many reasons it's not challengeable.
15 So, we're kind of focusing in on the 16 pathway through new information, and we'll deal later 17 with whether something arises out of that new 18 information, but ultimately, would be litigable.
19 But it just seems to me that the glue that 20 pulls this together is what constitutes the scope of 21 new information, and I'm not hearing a compelling 22 argument, as to what limits that range of information.
23 You've certainly done -- there are 24 certainly instances that you've pointed out, that I 25 think are very clear to us, that yes, that is new NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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104 1 information. The assessment appears to be adequately 2 performed and there is no additional consequences.
3 It lead, begging the question of what 4 wasn't looked at, and at least from our perspective, 5 the Petitioners raised a few, that don't seem to see 6 the light of day within the environmental report, 7 under new and significant information.
8 That is how I -- I mean, again, I keep 9 coming back to that.
10 MR. POLONSKY: The definition that the 11 Commission has set forth for new and significant 12 information is something that presents a "seriously 13 different picture of the environmental impact, of the 14 proposed project from what was previously envisioned".
15 So, that is --
16 JUDGE KENNEDY: For significant, but what 17 about for new?
18 I mean, new seems to me, to be time based.
19 It's new, since something else. Again, I'm struggling 20 with the way the staff is viewing new. I mean, 21 they're looking at a range over time, of things that 22 have occurred, and even the bullets in the ER, that is 23 an evolution of analyses and refinement of analyses 24 that was performed for Limerick. That clearly sounds 25 new to me. That is new stuff.
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105 1 JUDGE KASTENBERG: Let me just see, if 2 this helps, just a bit.
3 I .think in your answer, and I think you 4 spoke to it a few moments ago, the fact that the 5 regulatory process is dynamic, there being IPE's and 6 IPEEE's, and containment performance and all of these 7 things that have taken place, and on the other side, 8 as someone who is regulated, they do their due 9 diligence and they follow what -- the course of 10 events, as the regulatory process unfolds.
11 I think what Mike is getting at, at maybe 12 another way is, why isn't all of that reflected, or 13 should it have been reflected in the ER? In other 14 words, it doesn't tell us, other than you guys are 15 doing a good job of regulating perhaps, and you guys 16 are doing a good job of following the regulator, but 17 what does that have to do with the proceeding and the 18 contentions that have been raised?
19 I think that is what Mike is getting at, 20 it isn't -- what Judge Kennedy is getting at, he 21 doesn't quite see how that brings it forward. Is that 22 a better way of saying it, or another way of saying 23 it? Does that make sense?
24 JUDGE KENNEDY: Yes, I'm struggling with 25 the scope, and I keep hammering on the example of, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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106 1 could additional mitigation measures be new 2 information, and I understand the process, at least as 3 I understand you're explaining it to me, we don't get 4 that far.
5 But I'm saying, why can't that be at the 6 front end? Why wouldn't that even be considered as 7 new information, of things that could have been looked 8 at, even in 1989, and it's just that we didn't think 9 about that, or they didn't present themselves.
10 It's just the newness of the information 11 since 1989, assessed against the consequences that are 12 in the current SAMDA analysis.
13 MR. POLONSKY: Your Honor, one of the 14 concerns from a legal perspective is that the 15 Commission created the exception, and that there not 16 be some backdoor to a eviscerate the exception, and to 17 on the one hand, say there is no need to submit a SAMA 18 analysis, and then on the other hand, to say but 19 anything I come up with that is new information, ought 20 to be evaluated for its significance, such that we're 21 now turning this new and significant information 22 analysis into a SAMA analysis.
23 JUDGE KENNEDY: I guess, but I don't 24 understand why five is there, then? Why is it focused 25 on new information that could impact the severe NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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107 1 accident consequences? Why is that even there, if you 2 don't have to -- if that is in conflict with L? I 3 mean, wh is it even there?
4 MR. POLONSKY: Because for Category --
5 even a Category 1 issue, which doesn't have an 6 exception, is, you know -- it's exempted, because it's 7 -- you still need to look at new and significant 8 information for a Category 1 issue.
9 JUDGE KASTENBERG: You need to look at it, 10 but it's not challengeable.
11 MR. POLONSKY: It's not challengeable.
12 JUDGE KASTENBERG: And that is basically -
13 14 MR. POLONSKY: And in the license renewal 15 proceeding, and Your Honor, we'll spend all the time 16 it needs and issue RAI's, if it seeks additional 17 information, but it's just not litigable here.
18 CHAIRMAN FROEHLICH: Does the staff agree 19 that the Petitioner has no right to challenge new 20 information chosen by the Applicant in its ER?
21 MR. SMITH: I think, Your Honor, to point 22 out earlier, is that the staff does not agree that is 23 the case.
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108 1 respect to previous generic determinations, but it 2 must do so in compliance with the Commission's 3 regulations, which require the filing of a waiver 4 petition, and NRDC is not likely to file a petition, 5 in this case.
6 JUDGE KENNEDY: Going back to new 7 information, again, Mr. Polonsky, I'll ask you, new 8 information is relative only to Category 1? I mean, 9 I'm sorry, that is what I heard.
10 MR. POLONSKY: Yes, new and significant 11 information -- well, I was using that as an example.
12 JUDGE KENNEDY: Just as an example?
13 MR. POLONSKY: But new and significant 14 information, I think the staff raised it, well, was if 15 an analysis has already been performed, you are 16 looking at new and significant information for what 17 has previously been performed.
18 JUDGE KENNEDY: So, does that open the 19 door to the SAMDA?
20 MR. POLONSKY: No, because the SAMDA is 21 itself, just a spring-board. There were so many other 22 analyses and updates since the SAMDA analysis, that 23 have informed risk management and severe accident of 24 the site.
25 For example, I mean, I think in the ER, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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109 1 and I'll have to locate it, there is a discussion of 2 core damage frequency decreasing over time. Well, how 3 is that possible?
4 Because they've gotten better at doing 5 these analyses and have more information now, than 6 they did before. But that doesn't mean that we look 7 at core damage frequence from 1989 and say, "That is 8 what we're comparing new and significant information 9 to," because we have these more recent analyses to 10 compare to.
11 JUDGE KENNEDY: Now, you compared it, as 12 I understand it, to the consequences, and --
13 MR. POLONSKY: Right.
14 JUDGE KENNEDY: -- it would have lowered 15 the consequences.
16 MR. POLONSKY: It would have lowered the 17 consequences, that's right, which is why when the NRC 18 -- when the Commission says new and significant 19 information means it's in -- seriously different 20 picture than the environmental impact, it's not just 21 a slight increase. It's a seriously different 22 picture. Those are significant words, for lack of a 23 better term. This is a high threshold.
24 MR. ROISMAN: Mr. Chairman, could I 25 respond?
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110 1 CHAIRMAN FROEHLICH: Sure.
2 MR. ROISMAN: Let me just say something.
3 First of all, we've found in both types of new 4 information, we offered information that suggested 5 that the consequences could be worse, and we suggested 6 that mitigation alternatives would be broader than 7 what was done before, and some of these mitigation 8 alternatives are outlined for you on page 7 and 8 of 9 the declaration of our experts.
10 And contrary to Mr. Polonsky's statement, 11 you don't start -- jump at the consequences, unless 12 the consequences have, gotten worse, you don't have any 13 new information.
14 First of all, there is nothing in the 15 regulation to suggest that that's the standard -- the 16 standard for significant is, would it make a big 17 environmental difference?
18 We agree, but we submit that these various 19 mitigation measures that have been looked at in other 20 plants, some of which are like Limerick, and that were 21 not part of the 1989 analysis, have been shown to be 22 potentially cost effective. Meaning that their 23 implementation would make a substantial reduction in 24 the offsite economic or human exposure risk and/or 25 that their cost is relatively minor, compared to that.
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111 1 We gave you -- we cited to you, the Indian 2 Point decision on SAMA, in which the Board provided a 3 list taken from the Applicant's analysis, it's a PWR, 4 and one of the examples that they list there involves 5 a $200,000 expenditure and a $5 million mitigation.
6 Whatever other definition one might have 7 of substantial or significant, that certainly would 8 meet it.
9 So, we think that these all, whether 10 they're changes in the consequence of the accident or 11 changes in mitigation of the consequences of the 12 accident, constitute new and significant, and we 13 offer, are the basis for this.
14 The second -- and I think the heart of the 15 question is, whether or not the Board is precluded 16 from hearing and whether we are precluded from raising 17 in this proceeding, a challenge to the new and 18 significant information, as applied to this particular 19 plant.
20 Counsel for staff pointed out that new and 21 significant information applies to updating an 22 environmental impact statement. That's what we have 23 here. We have a 1989 supplement to the environmental 24 impact statement, and that supplement is now out of 25 date, and we've described ways in which we think it's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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112 1 out of date.
2 The Applicant has looked at it and said, 3 "We don't think it's out of date." We've joined 4 issues.
5 So, there, only with this very, tiny, 6 little way, that the Applicant believes and the staff 7 believes, they've found namely that the Commission has 8 a line of cases where people are challenging Category 9 1 and generic findings, and trying to argue those 10 generic findings are wrong.
11 No one is arguing here that any generic 12 finding is wrong. The 1989 analysis is a site 13 specific analysis. No rule-making would have been 14 needed to have challenged that. How did we file the 15 rule, in which you said, we want you to change your 16 licensing impact statement with regard to one 17 particular plant?
18 It's inherently not generic. This is the 19 place where one should be able to challenge, and it 20 doesn't depend upon whether or not the Applicant is 21 required to do a new SAMA analysis. We're not asking 22 that. We're not even asking that in Contention 3.
23 It does turn on whether or not the 24 analysis of mitigation alternatives is adequate and 25 represents a hard look at this case law, as required.
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113 1 The Supreme Court's decision that I cited to you 2 before, that Methow case, makes clear that looking at 3 the mitigation alternatives is a key component of 4 this.
5 In Marsh versus the Oregon Natural 6 Resources Council they -- which is sort of a case that 7 everyone goes to, when they're looking for new 8 information, the Court said new and significant 9 information is information showing that a proposed 10 action would affect of the human environment in a 11 significant manner or to a significant extent, not 12 already considered.
13 We've offered you a number of things that 14 were not already considered, the population issues, 15 meteorological issues, evacuation time issues and 16 mitigation measures, and for preconceived issues, as 17 well.
18 So, we've -- and we've supported those 19 with an expert conclusion. So, the bottom line is the 20 mitigation part of the severe accident in play.
21 Mr. Polonsky kept referring to Section 5.3 22 of the ER, as the severe accident discussion. With 23 due respect, I'd like to quote the title of the 24 section, "Severe accident mitigation". That is the 25 title of the section.
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114 1 Applicant made no effort to explain how or 2 why they would not look at changes in mitigation 3 alternatives, under the whole consequences.
4 So, even their own document doesn't 5 support the view of this sort of narrow salami slicing 6 of the issue, and both are on the table, and both are 7 challenged in Contention 1, and both are legitimate 8 site specific concerns and frankly, if not here, they 9 cannot be heard, and that means that the public's due 10 process rights is protected the Atomic Energy Act and 11 by NEPA, and would be violated.
12 CHAIRMAN FROEHLICH: That gets me back to 13 staff. Could I ask, Mr. Smith, does the Petitioner 14 have a right to raise any new information regarding 15 environmental impacts of license renewal, which it 16 believes are significant?
17 MR. SMITH: Thank you, Your Honor. Yes, 18 I think the Petitioner's description of their claim, 19 what it's revealing to me, about where the staff 20 thinks their contention has gone wrong.
21 They describe their contention as raising 22 the challenge to 1989 SAMDA analysis, and whether or 23 not new information updates that analysis, but in the 24 staff's view, that analysis isn't at issue in this 25 proceeding.
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115 1 That was only an analysis for operating 2 licensing. The issue in this proceeding is license 3 renewal. The regulation provides the analysis for 4 license renewal, and as the staff has pointed out, 5 that regulation relies on more than just 1989 SAMDA 6 analysis, but in NRDC has not shown how the totality 7 of those studies provided an insufficient basis to the 8 Commission's determination in the regulation.
9 Commission's regulations don't suggest 10 that what we should do is just incorporate the old 11 analysis and bring it into the proceeding and leave it 12 at that.
13 The Commission's regulations, I think, 14 reflect the study of severe accidents and severe 15 accident mitigation and the study relies on a finding 16 that if you've done one SAMDA analysis, you don't need 17 to do another one, at the time of license renewal.
18 Of course, NEPA has a continuing 19 obligation on the agency, before its final action, to 20 always look at conclusions that have been codified in 21 environmental impact statements or finalized in 22 environmental impact statements, to see if any new and 23 significant information impacts those findings, and of 24 course, the Petitioners have a way to challenge that, 25 and the Commission has been clear, the way to do that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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116 1 in NRC proceedings, for I think reasons of efficiency 2 and fairness, that if they want to challenge the 3 determinations and codify it in NRC regulation, is to 4 file a labor petition and NRDC didn't do that in this 5 case.
6 CHAIRMAN FROEHLICH: If a Petitioner had 7 a concern that it became aware of, or it tied to an 8 Applicant's ER, on a subject that will appear later in 9 the DEIS or EIS, isn't that Petitioner under an 10 obligation to raise it at the ER stage, to preserve it 11 for when the DEIS is issued?
12 MR. SMITH: That is correct, Your Honor.
13 CHAIRMAN FROEHLICH: Can a Petitioner 14 raise a contention that new information was overlooked 15 in a license renewal application or in an Applicant's 16 ER?
17 MR. SMITH: What do you mean by new 18 information?
19 CHAIRMAN FROEHLICH: There is something, 20 there is new information that would -- that would be 21 significant, or perhaps, change the perspective of the 22 Applicant in the first instance, in the ER or the 23 staff, in its preparation of the EIS, that they 24 believe is significant, would they be able to raise 25 that, or aren't they obligated to raise that now, at NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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117 1 the ER stage?
2 MR. SMITH: That is my understanding, Your 3 Honor. The Petitioners must challenge the ER, that 4 sort of stands in for the staff's draft SEIS.
5 But to the extent that the Petitioners are 6 challenging an issue that the Commission has resolved 7 generically, such as SAMA's for facilities that have 8 already completed the SAMA analysis, then they would 9 need to submit a waiver petition, because they are, in 10 essence, challenging a regulation of the Commission.
11 Now, I think the Commission's quote from 12 the Vermont Yankee and Pilgrim case, although it's 13 tied to the Category 1 issue, is helpful to also, this 14 case, because it's a generic determination.
15 The Commission ' said, "Adjudicating 16 Category 1 issues site by site, based merely on a 17 claim of new and significant information, ellipses, 18 would defeat the purpose of resolving generic issues 19 in the GEIS."
20 CHAIRMAN FROEHLICH: I think I would agree 21 with you, as to Category 1 issues. Would your answer 22 be exactly the same as to Category 2 issues?
23 MR. SMITH: Your Honor, a Category 2 24 issue, as I alluded to earlier, it's sort of 25 meaningless to talk about new and significant NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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118 1 information with respect to a Category 2 issue, 2 because under the Commission's regulations, a Category 3 2 issue must be considered fresh for that licensing 4 action.
5 Under NEPA, we have to take a hard look at 6 the Category 2 issue, and that hard look goes beyond 7 just looking for new and significant information, 8 which as we talked about, is a higher standard which 9 requires showing some kind of a seriously different 10 picture of the environmental impacts.
11 Now, so, if there is no reason to apply 12 new and significant information to Category 2 issues, 13 which we're already looking at, as part of the 14 licensing renewal process, which is why because the 15 Commission has made a determination in their 16 regulations, that we don't need to look at SAMA's 17 here, that we are applying this higher new and 18 significant information standard to the question of 19 the SAMA's, and seeing about any of this information, 20 which I think the -- to get back to the point Judge 21 Kennedy was raising earlier.
22 When we look for new information, with 23 respect to the prior determination, which in the 24 staff's view, was 1996 rule-making, and then evaluate 25 significance after that, and seeing if it meets that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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119 1 high standard. So, that is the approach that staff is 2 taking.
3 CHAIRMAN FROEHLICH: I assume, Mr.
4 Polonsky, you agree with staff's perspective on this 5 issue? Did you want to take it further?
6 MR. POLONSKY: I would like to comment on 7 the 1996 rule, if I could.
8 CHAIRMAN FROEHLICH: Sure.
9 MR. POLONSKY: And address a comment about 10 some concern of lack of due process, which I assume 11 the Board would take seriously, and hope to allay the 12 Board that there is no violation of due process here.
13 NRDC has raised a concern that the first 14 time that the Commission, in its statements of 15 consideration, mentioned that Limerick would fall 16 under this exception was in a final rule, and 17 therefore, there was no opportunity or announcement to 18 the public that they could challenge this, and that 19 therefore, it was not somehow adjudicated, and 20 therefore, we cannot rely on it for purposes of 21 interpreting Section 51.53 and Section 2L.
22 The June 5, 1996 final rule is certainly 23 listed as a final rule, and that is in 61FR28467, is 24 the first page.
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120 1 had changed things, or changed positions for the first 2 time in the final rule and opened that up for a 30-day 3 comment period, in that's explicit on this page.
4 Not only did they open it up for a 30-day 5 comment period, but in the final final rule, if you 6 will, issued in December 1996, they respond to 7 comments that were submitted on the original final 8 rule in June, and those comments include the fact that 9 three industry commenters had disagreed with the 10 designation of severe accidents as Category 2, in the 11 final rule, and the requirement that SAMDA's must be 12 addressed by the Applicant and the staff, etcetera, 13 etcetera.
14 So, clearly, there were members of the 15 public who not only were aware of the final rule in 16 June, but commented on the changes to the SAMDA 17 categorization, that had been raised in June, and that 18 was embodied in December 1996.
19 So, there is no rationale for saying that 20 this was not "adjudicated", whatever that means, and 21 there is no due process violation, with respect to the 22 1996 rule.
23 There is also no due process violation for 24 the inability of a Petitioner to challenge new and 25 significant information, for an issue that has been NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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121-1 resolved by rule.
2 The way to get around that, it's not even 3 to get around that, 2.335 allows the avenue to request 4 a waiver petition, or you can file a petition for 5 rule-making, if you don't agree with the rule itself.
6 Again, those are -- or you can comment on 7 the draft SEIS. So, these are all ways that members 8 of the public can participate, and so, there is no 9 concern about a violation of due process.
10 CHAIRMAN FROEHLICH: Go ahead.
11 JUDGE KASTENBERG: Are you saying that 12 public comment and adjudication are at the same level, 13 an adjudication process, such as this, and public 14 comment are equal, in terms of what the public can 15 bring forward?
16 MR. POLONSKY: Well, a petition for a 17 waiver is the way --
18 JUDGE KASTENBERG: No, first -- you 19 started to talk about the fact that there were ample 20 time for public comments and industry people commented 21 and they iterated on then comments and so on, that you 22 would equate that to an adjudication process, is that 23 what you're saying?
24 MR. POLONSKY: In the rule-making context, 25 yes, Your Honor, I think it has to, because the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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122 1 argument that NRDC has raised is that there was no 2 opportunity for the public to comment on the change in 3 the rule, which added Limerick and changed SAMA's from 4 the draft rule of Category 1 to Category 2 in the 5 final rule.
6 So, there was a public comment process, 7 and that is what is called for under the 8 administrative procedure act.
9 So, for this purpose, commenting on a 10 rule-making is the way to satisfy public due process.
11 CHAIRMAN FROEHLICH: Was there anything in 12 that statement of consideration, or in the final rule 13 or final, final rule, or anywhere to the regulation 14 that will tie or bring a Category 2 becoming a 15 Category 1 event because of the exemption in the L?
16 MR. POLONSKY: Yes, Your Honor.
17 CHAIRMAN FROEHLICH: What is the cite into 18 that, please?
19 MR. POLONSKY: On page -- this is 61 20 Federal Register 28480, and it is the final rule, June 21 5, 1996, and I believe I quoted this before, it's the 22 right-hand column, towards the bottom.
23 It says, "Because the third criterion 24 required to make a Category 1 designation for an issue 25 requires a generic consideration of mitigation, the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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123 1 issue of severe accidents must be re-classified as a 2 Category 2 issue, that requires a consideration of 3 severe accident mitigation alternatives provided this 4 consideration has not already been completed."
5 And so, the only natural inference from 6 this is that Category 2 is applied to those plants 7 who have not submitted a SAMA, and those plants that 8 have, remain in Category 1, and I cited two other 9 provisions, not in rule-making, but in the GEIS, which 10 strongly suggest that an exception in 51.53(3) (c) (2),
11 yes, is -- if it's an exception, essentially, a 12 Category 1 issue, for those plants that have been 13 accepted because of a generic determination that has 14 been made.
15 CHAIRMAN FROEHLICH: Care to be heard, Mr.
16 Roisman?
17 MR. ROISMAN: Yes, a couple of things.
18 First of all, this is not a rule, identifying the 19 Limerick SAMA and meeting the requirement of 51.53(f) 20 does not appear in any rule.
21 The Commission is very careful in what it 22 calls regulations and rules, and what are not, and 23 that statement, that Applicant and staff are relying 24 on, does not adhere to rule, if the intent of the rule 25 had been to explicitly move that the -- the SAMA 1989 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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124 1 analysis of Limerick and the one done for Comanche 2 Peak and the one done for the third time, whose name 3 I forget now, were intended to be within the scope of 4 that, and remember, there were only three.
5 Why didn't they say so in the rule? Why 6 didn't they say that?
7 What they did was, they said, if a SAMA --
8 is a severe accident mitigation alternative analysis 9 has been done, then the Applicant doesn't need to 10 perform a new, without telling us that this particular 11 plant's 1989 SAMDA meets that. That is the first 12 point.
13 The second point is, Category 1 issues 14 have to be generic. It's a -- it is a misuse of the 15 English language to say that a site specific 16 environmental impact statement, the 1989 supplement, 17 is generic.
18 The example that was used of the salt 19 water marsh, which I think is an excellent example, 20 here is an exception of plants that are on the salt 21 water marsh, and don't have to do an analysis of the 22 ground water impacts of their cooling pond.
23 The basis for that is that salt water 24 marsh impacts have been generically determined. There 25 was already, a generic determination of what the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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125 1 impact would be of salt water marsh use as a cooling 2 source of a power plant.
3 So, whether you had your salt water marsh 4 on the ocean, or it was inland, you were exempt. This 5 is perfectly okay, because it relates back to generic, 6 and I would agree that we had an issue here of the 7 salt water marsh pond, but I would not agree that just 8 because an Applicant asserts that what they have is a 9 salt water marsh cooling pond, and a reasonable 10 intervener says, "No, that is not a salt water marsh 11 cooling pond. That is something different," and 12 presents sufficient evidence and bases and so forth, 13 they would be able to challenge that, because the 14 Applicant has to prove that they meet the regulatory 15 exception standard.
16 This Applicant wants to say, "We don't 17 have to prove that. We don't have to give you the 18 1989 SAMDA, even though we quote from it, even though 19 we analyze it, even though we rely on it, we don't 20 have to give it to you," so, you don't get to see it.
21 It's not part of this record, and number two, you 22 don't get to challenge whether or not that document 23 complies with whatever the Commission intended when it 24 wrote 51.53(L), and we all agree that 51.53(L) gives 25 us no definition of what is an analysis, a legal NEAL R: GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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126 1 sufficiently analysis of severe accident mitigation 2 alternatives.
3 We would have to go to the other sections 4 that we cite, primarily in Contention 3, but also, in 5 Contention 2, that tell us what would be an adequate 6 analysis?
7 What the Applicant and staff are arguing 8 is, is that the Commission is giving a license renewal 9 to use any document that an Applicant called a severe 10 accident mitigation alternative, done before license 11 renewal, as an automatic free-ride on having to do one 12 in a licensing proceeding, and of course, as an -- no 13 opportunity for the kind of adjudicatory hearing that 14 we're having here. There is no support for that.
15 CHAIRMAN FROEHLICH: Is the basis of your 16 argument, that document was published in 1989, and 17 titled 'staff's SAMDA analysis', is not a SAMDA?
18 MR. ROISMAN: In Contention 3, that is our 19 argument. In Contention 1, our argument is, it 20 doesn't even matter, because new and significant 21 information related to non-generic findings that are 22 part of the GEIS, even if we imported this into the 23 GEIS, have to be considered as part of the 24 environmental report, the DSEIS and FSEIS, and are 25 subject to challenge by an intervener.
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127 1 CHAIRMAN FROEHLICH: So, you further would 2 contend that when the Commission created the 3 exception or exemption for the three plants, they 4 weren't referring to Limerick or the 1989 staff SAMDA?
5 MR. ROISMAN: The Commission didn't create 6 an exception for three plants. The Commission created 7 an exception for any plant that met whatever that 8 exception meant. It wasn't three. It might have been 9 30.
10 There is nothing that would have stopped 11 all the plants that are now presenting SAMDA's, as 12 part of their license renewal, from trying to do one 13 before license renewal ever came up.
14 Submitting it to the staff, getting it 15 approved and then arguing, it's outside the licensing 16 renewal.
17 But the Commission doesn't say three, in 18 there, and I submit that there is nothing in the 19 statement of consideration or in the GEIS that 20 justifies the conclusion that what was done in 1989 21 constitutes a legally adequate consideration of severe 22 accident mitigation alternatives.
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128 1 they possibly have determined which mitigation 2 measures would be useful, if they left off, even by 3 Applicant's declaration, 70 percent of the possible 4 impacts?
5 Looking at only the consequences side, we 6 think that number is way low for these plants, putting 7 that aside.
8 So, it would be, it seems to me, that it's 9 injustice to imply, much less define, that what 10 happened in 1989 constituted sufficient information to 11 meet NEPA's requirement for evaluating mitigation 12 alternatives to severe accidents, the Commission's 13 intent, when it said, if you have done that, we'll let 14 you do it, without having to do the work, and by the 15 way, we're not arguing that they should do the work.
16 We're arguing they should update an old one.
17 And the staff points out that when the 18 staff does these analyses, it's trying to deal with 19 the updating of prior environmental impact statements.
20 This Applicant, when it applied for its 21 license to operate the Limerick plants, did an 22 environmental report. The staff did a draft and a 23 final environmental impact statement. Many of the 24 issues that are addressed in the new ER were the 25 subject of the old FSEIS, DSEIS and ER. Why were they NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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129 1 done all over again? Because context, Applicant 2 didn't even try to cite, "Oh, that old one is done and 3 we don't have to do it again."
4 Maybe the -- I think Mr. Polonsky 5 acknowledged that new and significant information just 6 gets automatically rolled into the updated analysis.
7 So, we have an old analysis. It needs to 8 be updated. The Applicant has acknowledged that it 9 needs to be updated. They haven't done it properly.
10 We've challenged it. We should have a hearing.
11 CHAIRMAN FROEHLICH: I'm trying to get the 12 chronology of when the Commission issued the L -- the 13 change to the reg, to put in the L, and trying to 14 gather from the timing of that, what they could have 15 been referring to, when they carved out this 16 exception, if not, the three plants that had done or 17 the staff had done the SAMDA for.
18 MR. ROISMAN: Well, I think some of that, 19 we've'heard. The Commission had ongoing in 1996, and 20 you'll see it in the statement of consideration. The 21 IPE's, the IPEEE's, it was certainly possible that, as 22 staff now argues with regard to this case, that that 23 work would have completed the analysis of severe 24 accident mitigation alternatives sufficiently, that 25 the SAMA wouldn't have been required for any plant.
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130 1 I think all the Commission wrote in there 2 was that if that has happened, then we're okay with 3 it.
4 In 2001, the NEI filed a rule-making 5 petition with the Commission, saying, just as staff 6 has argued here, the IPE and the IPEEE are going to 7 take care of this issue. We will know then, what the 8 consequences are of severe accidents, we'll look at 9 mitigation alternatives, we have back-fit rules. You 10 don't need to keep this in there, and the Commission 11 rejected that.
12 They turned down that rule-making request 13 because they said, "This isn't done right. There's a 14 lot more to be done," and the staff, by the way, 15 supported the Commission and the rule-making was 16 turned down.
17 So, all in all, there has been the 18 possibility that you wouldn't have to do the SAMA 19 because it would have already occurred. I don't think 20 the three that are talked about -- I mean, where is 21 the -- where is this support in this document, in the 22 statement of considerations, that there was any look 23 at these SAMA's, to see whether or not they were what 24 the Commission had in mind, when it was considering 25 what should be severe accident mitigation NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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131 1 alternatives. It's not there.
2 There is a couple of lines in the GEIS, 3 which is the staff's document, and the staff's 4 document is merely saying, "Look what we did," I mean, 5 it's self-serving. I don't mean to demean it by that, 6 but it wasn't like an independent evaluation, and 7 therefore, we don't have -- we don't even have a 8 record in the statement of considerations, and again, 9 I submit if it had been what you're asking for, Mr.
10 Chairman, I think the Commission would have said 11 something in L, that made reference to that, to the 12 ones that are already done, or to something.
13 They didn't, and we are bound by the rule.
14 The rule did not adopt the statement of consideration.
15 It did not adopt the GEIS. It adopted only the 16 portion of GEIS that put things in Category 1 and 17 Category 2, and as we've discussed, the SAMA analysis 18 into Category 2.
19 CHAIRMAN FROEHLICH: Staff Counsel?
20 MR. SMITH: Thank you, Judge Froehlich.
21 I think one I wanted to respond to first is that staff 22 has a different view of the NEI provision for rule-23 making in the denial that the Petitioners, and in the 24 rule-making first and foremost, document any challenge 25 to the -- the rule-making with any challenge, the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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132 1 Commission regulate that if you've done one SAMA 2 analysis, a subsequent one need not be done for 3 license renewal. That wasn't the issue.
4 Also, NEI petition for rule-making raised 5 a limited challenge to Commission determination that 6 basically brought forth two points.
7 First, it said that you're asking to be 8 remote and speculative, and therefore, it need not be 9 in the consideration of ways to mitigate this.
10 Second, NEI said that the scope of the 11 NRC's environmental review should be limited to the 12 scope of the safety review, which is managing the 13 effects of aging, and the Commission soundly rejected 14 to both of those principles. Nothing in the staff's 15 argumentis contrary today, first and foremost, that 16 severe accidents are not remote and therefore, must be 17 considered in the scope of license renewal, and 18 second, the scope of our environmental review is much 19 -- in a way, much larger than our scope of our limited 20 safety review and it -- the environment review must 21 consider the environmental impacts of operating from 22 another 20 years, not just the impacts of aging --
23 managing the defects of aging over that time period.
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133 1 as a Category 1 issue, at the end of that document, 2 and talked about the IPE and IPEEE programs, but said 3 at that time, didn't -- the Commission's view and the 4 staff's view of those programs weren't sufficiently 5 developed to the point where we would be certain that 6 the result of that analysis would lead to the 7 classification of SAMA as a Category 1 issue.
8 Therefore, it's been determined it wasn't 9 worth the time at that point to consider the issue, 10 but the Commission didn't consider itself, the 11 question of whether or not SAMA's were properly 12 categorized as Category 1 and Category 2, just the 13 issue wasn't worth visiting at that time, in light of 14 the staff's analysis.
15 Let's see, also I guess probably worth 16 pointing out too, is the statement of considerations 17 is not a regulation and it's not a rule, but it is 18 helpful in explaining what the Commission meant when 19 it promulgated the rule, and to the extent we're 20 looking at the meaning of 10 CFR 51.53 (c) (3) (ii) (1) 21 is, it's helpful in explaining that that language is 22 meant to apply to the rule-making.
23 CHAIRMAN FROEHLICH: In your mind, it was 24 intended to apply to Limerick?
25 MR. SMITH: Limerick specifically, but NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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134 1 also as I pointed out earlier, the language was 2 expansive enough to also encompass licensing 3 applications for other facilities, like Watts Bar II 4 or the new generation combined operating license 5 reactors that will have had a SAMA analysis done in 6 the initial operating phase, as well, or even if a 7 facility were to come in for a second license renewal, 8 who would have completed a SAMA analysis at the first 9 license renewal stage.
10 So, the Reg Guides wouldn't apply to those 11 facilities, as well. So, it could have a very large 12 class of facilities, conceivably.
13 CHAIRMAN FROEHLICH: Mr. Polonsky, 14 anything to add?
15 MR. POLONSKY: Yes, one, wasn't Limerick 16 listed, is a question, and is Limerick mentioned in 17 the June 1996 statement of considerations due any 18 deference?
19 I think we did just hear why Limerick 20 wasn't listed, because it would be a significant 21 burden on the Commission to every time a new plant had 22 performed a SAMA analysis, to then go in and revise 23 the rule to add that plant.
24 So, to have added Limerick and Comanche 25 Peak and Watts Bar at the time, that would then NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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135 1 constrain the Commission to having to amend it every 2 time a new plant was licensed, such that it did not 3 have to submit a SAMA as part of its license renewal.
4 And then is Limerick mentioned in the June 5 1996 due any deference? Well, the Commission, in the 6 Pai'ina, Hawaii decision, we think is very on point.
7 It's CLI-08-3. That was an underwater reactor -- I'm 8 sorry, radiator proceeding, under Part 36, and there 9 was an issue about citing and the limitations on 10 citing requirements, and the rule is silent on citing, 11 and the Commission goes into great length to discuss 12 that the statements of consideration lay out why it is 13 silent on citing, and provide those citing 14 qualifications.
15 On page 163, as the Commission then delves 16 into the statements of consideration analysis under 17 Part 36, despite the fact that the concerned citizens 18 group says that it's not proper to consider the 19 statements of consideration, which is very similar to 20 here, there is a footnote 46, which says, and it's 21 quoting, a prior Commission, Duke Energy Corp., CLI-22 0411, "The Commission often refers to the statement of 23 considerations as an aide in interpreting our 24 regulations."
25 It also says then, "See also," and cites NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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136 1 to a decision from the D.C. Circuit, again, also in 2 footnote 46, it says, "We regularly rely upon the 3 preamble in interpreting agency rules, given that the 4 purpose of the preamble, after all is to explain what 5 follows."
6 CHAIRMAN FROEHLICH: And that page 163 and 7 footnote 46 comes from the Pai'ina CLI-08-03?
8 MR. POLONSKY: Correct.
9 CHAIRMAN FROEHLICH: Okay.
10 MR. POLONSKY: And if we then go to the 11 June 1996 statement of considerations, we think it is 12 unambiguous on page -- this is 61 Fed Reg 28481, in 13 the middle column, towards the bottom of the only full 14 paragraph.
15 It says, "NRC staff considerations of 16 severe accident mitigation alternatives have already 17 been completed and included in an EIS or supplemental 18 EIS for Limerick, Comanche Peak and Watts Bar."
19 "Therefore, severe accident mitigation 20 alternatives need not be reconsidered for these plants 21 for license renewal." That is essentially the 22 language of the exception language in 51.53(f).
23 CHAIRMAN FROEHLICH: Last word, Mr.
24 Roisman.
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137 1 get them over Contention 3, although I still think we 2 have a dispute. It doesn't help them at all with 3 regard to new and significant information in regards 4 to Contention 1 or Contention 2, which says that 5 forget about -- remember 51.53 has not standards for 6 what is a severe accident mitigation alternative 7 analysis.
8 So, in Contention 2, what we have said is, 9 you are obligated by earlier regulation cited in -- by 10 Supreme Court precedent which cited it, to do an 11 adequate severe accident alternatives mitigation 12 analysis. You haven't done it for this plant. You 13 have to do it, based upon the information that is 14 currently available.
15 So, both of those, Contentions 1 and 16 Contention 2, don't really depend, even if this were 17 correct, which I disagree with, and we can argue when 18 we get to three, more about that, but even if thaE 19 were correct, it wouldn't change the fact that the 20 Commission can write all the exceptions it wants, but 21 if at the end of the day, it doesn't have the legally 22 required mitigation alternatives analysis, and 23 admittedly, this is the staff, not the Applicant, it 24 cannot sustain its decision on whether to re-license 25 the plant.
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138 1 CHAIRMAN FROEHLICH: I note, we are 2 approaching the noon hour. I would ask my colleagues 3 of they have any further questions on Contention 1, 4 and then suggest we take our luncheon break, and when 5 we return, do Contentions 2, 3 and 4 and the Motion to 6 Dismiss.
7 JUDGE KASTENBERG: Motion to Strike.
8 CHAIRMAN FROEHLICH: Motion to Strike, I'm 9 sorry, Motion to Strike.
10 All right, then we'll stand in recess 11 until 1:15 p.m. and take up Contention 2 when we 12 return.
13 (Whereupon, the above-entitled matter went 14 off the record at approximately 12:05 p.m. and resumed 15 at approximately 1:00 p.m.)
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139 1 AFTERNOON S E S S I ON 2 1:15 p.m.
3 CHAIRMAN FROEHLICH: Please be seated. In 4 this afternoon session, I'd like to go through 5 Contentions 2, 3, and 4 and the Motion to Strike. But 6 over lunch, as we talked through this, it might be 7 helpful to as a general question and I'll start with 8 Roisman, a question that we had propounded in regard 9 to Contention 3. The question simply was what's the 10 difference between Contention 2 and Contention 3?
11 MR. ROISMAN: Contention 2 is based on 12 requirements of NEPA and the Commission's 13 environmental regulations. Those are conditions that 14 are not waived by or replaced by anything in 51.53(1).
15 But rather, inform as to what the words in that 16 provision mean when the analysis of severe accident 17 mitigation alternative. So a severe accident 18 mitigation alternative has to be one that complies 19 with the guidance of Methow Valley and complies with 20 the requirements of 51.453 of the Commission's 21 regulations, and 51.103 (a) (4) Those two regulations 22 imposed upon the Commission in the case of (d) (3) the 23 discussion of alternatives should be sufficient to 24 complete and aid the Commission in developing and 25 exploring pursuant to Section 102(e) of NEPA, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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140 1 appropriate alternative to recommended courses of 2 action in any proposal which involves unresolved 3 conflicts concerning the alternative uses of available 4 resources. And then 103(a) (4) says state whether --
5 this is when the Commission is now doing its final 6 decision on the license application, state whether the 7 Commission has taken all practicable measures within 8 its jurisdiction to avoid or minimize environmental 9 harm from the alternative selective and if not to 10 explain why those measures were not adopted.
11 So Contention 2 says the applicant does 12 not meet those requirements. Admittedly, 103 applies 13 to the commission, but we've already talked about that 14 fiction. So Contention 2 says that Subpart L does not 15 grant, nor could it legally grant, an exemption from 16 the requirements of NEPA. The Commission cannot grant 17 itself an exemption from the statute, and therefore 18 the requirements of NEPA is still applicable.
19 So let's just look at what we have on the 20 table. We have a 1989 SAMDA. We have the analysis of 21 new and significant information in Part 5.3 of the ER.
22 And (c), does the applicant provide the information 23 that's required for a hard look at the mitigation 24 alternatives for severe accident, yes or no?
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141 1 you call it a SAMA, a SAMDA, or just an accident 2 mitigation alternatives analysis, whatever you want to 3 call it. That's what Contention 2 is about. And 4 you'll see there are a couple of issues in 2 that 5 don't appear in 1 because some of those issues are not 6 new and significant information. They're old and 7 significant information, but we still have to know 8 whether or not these requirements are met. And that's 9 a fundamental point that NRDC is pressing, that'at the 10 end of the day the Environmental Review for this plant 11 must meet the requirements of NEPA and the 12 Commission's regulations.
13 And you don't need to get to the question 14 of whether a new SAMA has to be done and the old SAMDA 15 analysis is equivalent of the new SAMA. All you have 16 to do is evaluate the adequacy of that.
17 Nothing in the regulations excludes 18 consideration of the adequacy of the analysis by the 19 applicant of severe accident mitigation alternatives.
20 So 2 just says they don't meet those statutory and 21 regulatory requirements. It doesn't ask them to do a 22 new SAMA. It just says you don't need it. They might 23 choose to come in, if they thought we were right and 24 they were wrong on that, and do a new SAMA. They 25 might do something different. It might not look at NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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142 1 all like a SAMA, but it might meet the statutory and 2 regulatory requirements.
3 Contention 3 deals with the very narrow 4 question and that is can an applicant assert 5 compliance with the exception provision of 51.53(1) 6 without proving something about the document that it 7 claims meets the exception requirement. This 8 applicant has said we don't have to bring it in.
9 We're not bringing it in. It doesn't have to be made 10 part of the application.
11 Our position is it's true, you don't have 12 to do it, but if you choose to do, that is, if you 13 choose to rely on the exception as they do here and if 14 you choose to evaluate new and significant information 15 against that whole document, you have to bring the 16 document here. And we have an opportunity to evaluate 17 whether or not that document is what the Commission 18 had in mind.
19 The applicant and staff position is it 20 does not matter what is in the document. If the 21 applicant and staff call it a previous SAMA analysis, 22 it automatically qualifies. There's no substantive 23 evaluation of its merits.
24 Now they say well, the Commission has done 25 that for us. They issued the regulation and they NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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143 1 reference Limerick to Watts Bar and Comanche Peak and 2 therefore they determined that those were adequate.
3 What I submit is where is the record that would 4 support such a determination? If the Board is to 5 treat it as collateral estoppel or res judicata, 6 however you want to treat it, there was to be some 7 record. There has to be a process that has gone 8 through in which the pros and cons, the merits and 9, demerits of that were available to be evaluated. No 10 such process is listed.
11 So in Contention 3, we ask you for the 12 first time to take a look a the SAMDA of 1989 and make 13 a judgment based upon any criteria that you can find 14 and its only guidance criteria, I admit, in the 15 Commission's guidance document, staff guidance 16 document, as to what would be a proper SAMA, what kind 17 of PRA analysis would you need, what kind of 18 mitigation alternatives do you have to look at, how 19 would you select what they were, how would you do the 20 balance between the cost of the mitigation alternative 21 with the cost of the accident and how much would you 22 save by all of that.
23 We're not trying to lay down some rule as 24 to what we say it has to be. All we're saying is that 25 any fair evaluation of the 1989 SAMDA cannot meet the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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144 1 requirement the Commission had in mind. The 2 Commission did not intend, no matter how you want to 3 read the SOC, to say no matter how bad we've done it, 4 an analysis is done, and regardless of the label 5 that's put on it, it automatically qualifies for the 6 exemption. So 3 challenges the applicant's assertion 7 that it's entitled to the exemption.
8 Now you might decide that's a legal 9 question. If it is, then we join the issue on a legal 10 question and that contention should be stayed for a 11 determination in a full-blown briefing that you would 12 do. The applicant would file for summary disposition 13 or we would file for summary disposition. At this 14 stage, there is a dispute. The dispute is whether or 15 not the applicant complies and meets the exception.
16 That's the dispute.
17 JUDGE KASTENBERG: Could you elaborate on 18 what you consider old, but significant in the 19 declarations?
20 MR. ROISMAN: Oh yes, they are included in 21 the declarations.
22 (Pause.)
23 So if you look at our petition on page 20 24 where the bases of Contention 2 are mentioned, the 25 number 3, the updated meteorological data, I believe NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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145 1 that that is not one of the new and significant, but 2 old and significant. It's an issue that could have 3 been raised, but then 1989, there's not an event that 4 happened, although we do note meteorological condition 5 information is available since that time. But we 6 think it was a bad choice.
7 Also, the consideration of the evacuation 8 time which is number 5 on page 20 of the petitioner's 9 grievance. It's another example of an issue which is 10 not new in the way that we use the term new. It's 11 potentially significant. I think those are the two 12 principal ones, Judge.
13 JUDGE KASTENBERG: Thank you.
14 CHAIRMAN FROEHLICH: Mr. Smith --
15 JUDGE KASTENBERG: Before we do that, just 16 one for the staff. Do you know what was the SAMDA of 17 1989, was that peer reviewed?
18 MS. KANATAS: I'm not sure. I'm not sure, 19 Your Honor. This is Catherine Kanatas. I can check 20 with the staff and see what type of peer review, if 21 any, it received.
22 CHAIRMAN FROEHLICH: Contention 2, as Mr.
23 Roisman just explained, talks about an obligation of 24 the applicant to meet the requirements of NEPA, 25 separate and apart from the argument that revolves NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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146 1 around the applicability of L, as I understood your 2 answer.
3 From the staff's perspective, is there an 4 obligation for the Agency staff to perform a SAMA 5 analysis as part of this license renewal proceeding?
6 MS. KANATAS: Thank you, Your Honor. No, 7 the staff does not believe that it is obligated to 8 perform a SAMA analysis in this proceeding. As we've 9 discussed, Exelon does not need to include a SAMA 10 analysis in its Environmental Report and Table D-l 11 which defines the scope of the staff's environmental 12 review for license renewal states that alternatives to 13 mitigate severe accidents must be considered for all 14 plants that have not considered such alternatives.
15 Here, as we've discussed, the staff has 16 considered alternatives to mitigate severe accidents 17 in the NEPA document for Limerick and so SAMA need not 18 be considered in the Limerick SEIS. A contrary 19 reading of the regulation would render the statement 20 that have not considered such alternatives meaningless 21 which, as a result, courts try to avoid when reading 22 regulations.
23 So I'd also like to point out that the 24 staff explained in the 1989 final environmental 25 statement that the severe accident program which NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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147 1 includes the containment performance improvement 2 program, the IPE, and the IPEEE, was the proper 3 vehicle for further review of severe accidents at 4 nuclear power plants including Limerick. That's on 5 page 15 of the FES.
6 And the Commission cited to these same 7 studies as well as the Limerick SAMDA in the 1996 8 Statement of Considerations when it made its 9 determination that another SAMA need not be done for 10 Limerick at license renewal.
11 CHAIRMAN FROEHLICH: So even working in 12 Mr. Roisman's argument that aside from L, NEPA would 13 require some type of a SAMA analysis, you don't buy 14 that?
15 MS. KANATAS: No, Your Honor. Part 51, 16 including 51.53(c) (3) (2) (1) are the Commission's 17 regulations implementing NEPA and NRDC has not shown 18 has been following the Commission's regulations 19 implementing NEPA do not meet NEPA. It's staff's 20 position that in following Commission's regulation in 21 not submitting a SAMA analysis in its ER, Exelon 22 complied with our regulation.
23 JUDGE KENNEDY: So the strength of your 24 argument is if the exemption and the fact that IPEs 25 and IPEEEs have been performed is just supplementary NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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148 1 to that? I'm not sure -- that's come up a couple of 2 times today.
3 MS. KANATAS: Certainly, the Commission 4 did determine that it could not make generic 5 determinations for all plants based on IPE and IPEEE 6 and that's not what we're arguing here. We recognize 7 that SAMA is a Category 2 issue, but based on the 8 consideration that was done in the SAMDA that was done 9 in 1989, as well as the IPE, IPEEE that was done 10 specifically for Limerick, and the other studies that 11 have been done and conti'nue to be done, the Commission 12 made the generic determination that another SAMA did 13 not need to be done for Limerick license renewal. So 14 it's not trying to say that we're trying to apply 15 Limerick's IPE generically to anyone else. As NRDC 16 pointed out, the SAMDA that was done was site specific 17 to Limerick as well as the IPE and IPEEE.
18 JUDGE KENNEDY: So the important 19 consideration is that it is an Environmental Impact 20 Statement?
21 MS. KANATAS: Correct, which the 22 regulation 51.53(c) (3) (2) (1) does explicitly state, 23 but the previous determination was in a Environmental 24 Impact Statement, but yes, it may not be submitted for 25 license renewal.
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149 1 JUDGE KENNEDY: Are there, just to keep 2 going with that, are there other facilities outside of 3 the three that have been mentioned that qualify for 4 the exemption that have a SAMA analysis or SAMDA 5 analysis within the Environmental Impact Statement 6 outside of license renewal?
7 MS. KANATAS: I believe my co-counsel, Mr.
8 Smith covered that there could be other potential 9 cases that the rule would apply to, whether it be for 10 COL applicant that had or other -- another license 11 renewal, a second license renewal.
12 JUDGE KENNEDY: So that would be going 13 forward?
14 MS. KANATAS: That would be going forward.
15 JUDGE KENNEDY: Line in the sand at the 16 time Limerick submitted their application, the three 17 that had been -- the three facilities that had been 18 granted the exemption are they the only ones that have 19 a SAMDA analysis or SAMA analysis within the 20 Environmental Impact Statement?
21 That's not coming out right, because I can 22 see Mr. Smith is thinking there's license renewal 23 applications that have already been granted?
24 MS. KANATAS: Right, right.
25 JUDGE KENNEDY: I guess I'm trying to get NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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150 1 at are those three that were granted the exemption the 2 only ones that qualified for the exemption? I guess 3 I'm trying to get at that point in time in '96 were 4 they the only three that were granted an exemption 5 based on having a SAMA analysis?
6 MS. KANATAS: I can confirm that with my 7 staff. I believe that there might have been for 8 systems 80, but I would need to -- I believe that at 9 that time those were the only plants, but I can 10 confirm that.
11 JUDGE KASTENBERG: And just to kind of 12 round this out, is there anything in L, I'm just going 13 to call it L, that precludes the staff when they're 14 doing the review of the ER from raising questions 15 regarding severe accident mitigation analysis?
16 MS. KANATAS: Thank you, Judge Kastenberg.
17 No, there is nothing that precludes the staff from 18 asking additional questions about the information 19 provided in the ER related to any new and significant 20 information. The staff is doing its own independent 21 analysis of whether there is new and significant 22 information related to the generic determination in L, 23 as you say, and so we will be following up based on 24 what's in the ER, what's in the petition, any other 25 information that we have, the reviews that have NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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151 1 already gone on, the SAMAs that have been done, other 2 things to determine whether there's anything that 3 needs to be followed up on, absolutely.
4 CHAIRMAN FROEHLICH: Mr. Roisman mentioned 5 some new old items or old new items.
6 MS. KANATAS: Yes.
7 CHAIRMAN FROEHLICH: Will those items or 8 those type of things, will they be looked at as part 9 of the staff evaluation for the DEIS?
10 MS. KANATAS: Thank you, Judge Froehlich.
11 The meteorology --
12 CHAIRMAN FROEHLICH: Right.
13 MS. KANATAS: And other concerns? The 14 staff's review is ongoing and without binding the 15 review and saying what exactly they will or won't be 16 looking at, certainly any information that would paint 17 a seriously different picture of the environmental 18 consequences that were considered in the 1996 19 rulemaking would be looked at by the staff. That may 20 or may not include things like meteorology.
21 CHAIRMAN FROEHLICH: In that regard, how 22 does that NEI 0501, how does that play into what you 23 look at and the type of issues Mr. Roisman was saying 24 that you must look at?
25 MS. KANATAS: Thank you, Judge Froehlich.
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152 1 A couple points on the NEI guidance. First, it 2 relates to a SAMA which is not at issue in this 3 proceeding. What is at issue is the regulation. So 4 any guidance --
5 CHAIRMAN FROEHLICH: We're back to L.
6 MS. KANATAS: Back to L. Any guidance on 7 the SAMA analysis really doesn't apply here because 8 there is no SAMA analysis submitted in the LRA which 9 NRDC notes on page two of their expert declarations.
10 In any event, the NEI guidance does not, 11 like all guidance documents, does not have any 12 requirements. And the Commission actually in the 1996 13 Statement of Considerations specified that it did not 14 intend to prescribe by rule the scope of an acceptable 15 consideration of severe accident mitigation 16 alternatives and that it would review each severe 17 accident mitigation consideration provided by a 18 license renewal applicant on its merits and determine 19 whether it constituted a reasonable consideration of 20 SAMA. That's at 61 Fed. Reg. 28482. There's an LPD 21 55 NRC 49 at 127, citing that.
22 So frankly, not only is it not an issue in 23 this proceeding because the SAMA is not at issue, it's 24 guidance and not binding requirements and the 25 Commission didn't intend to have any kind of bright NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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153 1 line, this must be done for a legally adequate SAMA.
2 CHAIRMAN FROEHLICH: Is there somewhere --
3 this sort of latches into Contention 3, is there any 4 definition of severe accident mitigation alternatives 5 in the Commission's regulations or somewhere that 6 explained, perhaps, how it's intended to be used in L?
7 MS. KANATAS: Thank you, Judge Froehlich.
8 The term is not defined in the regulations. In a 1980 9 policy statement, the Commission indicated that SAMAs 10 were additional features or other actions which would 11 prevent or mitigate the consequences of severe 12 accidents. The cite for that is 45 Fed. Reg. 40103.
13 The Commission's case law describes SAMAs 14 as safety enhancements such as a new hardware item or 15 procedure intended to reduce the risk of severe 16 accidents. That's CLI 10-11, slip. op. at 3. And the 17 Statements of Consideration for the '96 license 18 renewal rules do not explicitly define SAMAs, but they 19 do state that Limerick's SAMDA was a severe accident 20 mitigation alternatives analysis for purposes of the 21 rule.
22 (Pause.)
23 CHAIRMAN FROEHLICH: Mr. Polonsky, do you 24 have a view on the difference, if any, your approach 25 to Contention 2 vis-a-vis Contention 3, same question NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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154 1 as I began with with the petitioner?
2 MR. POLONSKY: Yes, Your Honor. It's like 3 a game show with two contestants who appear on the 4 outside to be different contestants, but in effect, 5 are the same contestant trying to get to the same 6 prize. Contention 3 says the exception doesn't apply.
7 Contention 2 says well, I may lose on that so I want 8 another bite to see what's behind Curtain 3 as part of 9 our game show, and so I'm trying to create a reason 10 why I can get around the exception in 3. We think 11 that's simply a camouflaged argument to do a runaround 12 and go through the back door to challenge a Commission 13 regulation which cannot be done absent a waiver in 14 this proceeding.
15 There's another reason for that outcome 16 and that is the citations that the petitioners have 17 provided are general citations under NRC's 18 interpretation of NEPA. And the general principles of 19 regulatory history construction or regulatory 20 construction period are that specific rules trump 21 general rules and here we have a specific rule that 22 says for those three plants that it already performed 23 a SAMDA analysis and they do not need to submit one 24 now. So to simply point to a general rule and say 25 that trumps the specific rule goes against these NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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155 1 general principles of regulatory construction.
2 And then finally, I think what the staff 3 said about their obligation, also flows through 4 equally from those general rules to this specific 5 rule. And if I could map that out, I think it's very 6 clear that the provisions that have been cited don't 7 link back and the provisions that I,'m going to cite do 8 link back to the exception.
9 So in 10 CFR Section 51.95(c), that's the 10 provision that governs the staff's obligation to issue 11 a Final Environmental Impact Statement, to issue a 12 Supplemental Environmental Impact Statement at the 13 license renewal stage. And it says that you must 14 address the issues that are required under 51.71. We 15 then turn to 51 -- if I'm going too fast, let me know 16 Judge Froehlich.
17 CHAIRMAN FROEHLICH: Okay.
18 MR. POLONSKY: So we're at 55.95(c) which 19 is entitled the Operating License Renewal Stage. And 20 it says that the Commission shall prepare an 21 Environmental Impact Statement which is a supplement 22 to the Generic Environmental Impact Statement. And 23 then (c) (1) says the Supplemental Environmental Impact 24 Statement for the operating license renewal stage 25 shall address those issues as required by 51.71.
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156 1 We then turn to 51.71 because we want to 2 know what it is that they're supposed to address.
3 51.71 entitled Draft Environmental Impact Statement 4 Contents provides that the NRC staff must address the 5 matters specified in several sections and then at the 6 top of the page of the following page it says as 7 appropriate and to the extent required by the scope, 8 the draft statement will address the topics in 9 paragraphs B, C, D, and E below and the matters 10 specified in -- and they list a couple of sections 11 including 51.53.
12 So we then go to 51.53 and you know the 13 answer to where this is going. The exception is 14 written into 51.53(1) provision which says you don't 15 need to include it here. So we think there's a very 16 clear path that says no, this isn't included and it's 17 not simply that the Commission forgot that this 18 exception was there and that it somehow violates the 19 requirement to do a hard look under NEPA. No, the 20 entire construct of 51 sets out what the NRC staff is 21 obligated to do and it clearly leads you down a path 22 of not doing an analysis for SAMA for Limerick.
23 CHAIRMAN FROEHLICH: It sounds very 24 logical and direct.
25 Mr. Roisman, care to comment?
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157 1 MR. ROISMAN: Yes, Your Honor. What the 2 applicant and staff would argue is that -- they're 3 saying that because the applicant is excused, their 4 term, from doing a new SAMA analysis under 51.53, it 5 therefore follows that staff which doesn't have to do 6 anything more than the applicant did is also excused 7 from doing it. And therefore, the NRC is excused from 8 complying and that is inconsistent not only with the 9 statute. It's inconsistent with the Statement of 10 Considerations. The Commission, through the 1986 11 Statement of Considerations, makes clear that its goal 12 is to comply with NEPA. That's what it was trying to 13 do. It's not setting up something separate and 14 ignoring it, it's trying to comply with NEPA.
15 So the question on the table is whether 16 looking at 2 and 3 is whether or not what has happened 17 as of 1989 complies with NEPA. This language that Mr.
18 Polonsky points to says that the staff's review needs 19 to include what's in 51.53. It doesn't say it's 20 limited to that and I believe staff counsel has 21 conceded that the staff may go beyond what the 22 applicant puts in the Environmental Report. This is 23 the applicant's point of view. Staff can have a 24 different point of view. They may find new 25 information the applicant didn't look at. They may NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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158 1 reject some of the applicant's analysis. They could 2 even say to the applicant your 1989 SAMDA review 3 reliance is unwarranted in light of everything that's 4 happened in the last 23 years. Any of those things 5 are possible.
6 So the staff, just like the applicant, is 7 not prohibited from doing an analysis. It's told it 8 doesn't have to. And what 2 raises is if you don't do 9 it, can you still comply with NEPA and the most that 10 they can say is if we don't do it, we'll still comply 11 with A. But that isn't the question that's on the 12 table, at least not in Contention 2.
13 Contention 2 just says is this an adequate 14 analysis that will even show alternatives? So I think 15 their framing the question by assuming the answer. I 16 would agree. If L was a declaration by the Commission 17 that they had made a generic determination that the 18 impact of mitigation alternatives and analysis of 19 severe accident mitigation alternatives at Limerick 20 were substantively adequate. And there was a basis 21 for that statement. In other words, it wasn't just a 22 throwaway line in the SOC. We would be in a very 23 different position, but we do not have that.
24 You can go through the SOC from top to 25 bottom and you will not find, or the GEIS for that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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159 1 matter, any attempt to compare the 1989 SAMDA analysis 2 for Limerick or any of the other plants against any 3 criteria for what you would do to adequately consider 4 severe mitigation alternatives, severe accident 5 mitigation alternatives.
6 We suggest in Contention 2 and to some 7 extent Contention 3 also things that you would have to 8 look at if you wanted to know the answer to that 9 question. That question is not answered in the 1989 10 SAMDA analysis. It's not answered because a whole 11 category of consequences, mainly economic consequences 12 are totally ignored. It's not answered because a 13 whole series of things that we've learned from 1989 14 and now are not part of the analysis. It's not 15 answered because there are specific things that were 16 done in 1989 which are demonstrably wrong in our 17 judgment. We presented expert opinion for it.
18 So we think that the fact that the 19 applicant and the staff think that they can duck this 20 responsibility at most, at the very most what you 21 could say is the applicant in its ER didn't have to do 22 more than the 1989 SAMDA.
23 Now we don't agree with that, but I don't 24 think you can say more than that. When you get over 25 to what the staff's obligations are, then we really NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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160 1 are in NEPA territory and the language that I quoted 2 at the beginning this morning from Methow Valley seems 3 to me is sufficiently important.
4 And with your indulgence I'll read a part 5 of it again. Omission of a reasonably complete 6 discussion of possible mitigation measures would 7 undermine the actual enforcing function of NEPA.
8 Without such a discussion neither the Agency nor other 9 interested groups of individuals can properly evaluate 10 the severity of the adverse effects. Now that's not 11 said in the SOC. It's not even said by the 12 Commissioners. It's said by the United States Supreme 13 Court. It is the law.
14 So Contention 2 is based upon the fact 15 that a fair reading of the 1980 SAMDA analysis shows 16 that it does not meet that requirement. It does not 17 have a reasonably complete discussion of possible 18 mitigation measures. And there has been no cure, no 19 determination, no record, no opportunity for a record 20 to be made with regard to the 1989 SAMDA's relevance 21 to a 2012 license renewal application. Contention 2 22 says this is on the shelf, this is on the shelf.
23 Now as to 3, the staff often quotes to you 24 from the SOC to say that the Commission does not have 25 any standards for what is a proper set up. I agree, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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161 1 they don't. It's not in the regs. It doesn't appear 2 to meet it in the Statement of Considerations and in 3 the Statement of Considerations they say we're not 4 going to do that.
5 Contention 3 says we've got to know 6 whether you've done an adequate job. We believe you 7 offered, you say you, the applicant, that you're 8 entitled to the exemption. We have a right to check 9 on that assertion that you make in the ER. That's 10 what Contention 3 does. It challenges that assertion.
11 And we point to, because we can't point to regs. We 12 point to staff guidance, primarily NEI 05-01 as at 13 least illustrative of what we think would need to be 14 done to do a proper SAMDA. But we go back to the 15 declaration of our experts which say how could you 16 possibly say that you've done a proper evaluation 17 mitigation alternatives for Limerick when you have 18 left out mitigation alternatives that are in other 19 similar plants across the country as part of their 20 SAMA analysis? You haven't even considered them under 21 new and significant information much less as part of 22 your analysis of mitigation alternatives.
23 So that's where Contention 3 comes into play.
24 CHAIRMAN FROEHLICH: Staff counsel.
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162 1 points that I want to raise regarding Mr. Roisman's 2 argument. First, both Contention 2 and 3, as 3 explained just now, challenge the 1989 SAMDA and claim 4 deficiencies in that analysis and claim that the 5 Environmental Report for license renewal incorporates 6 or adopts that analysis as a SAMA analysis. And that 7 is not accurate.
8 The Environmental Report references the 9 1989 SAMDA as a citation to a previously done severe 10 accident mitigation alternative and then says it is 11 not -- the exact quote -- accordingly, no analysis 12 SAMA's for Limerick Generating Station is provided in 13 this license renewal Environmental Report as none is 14 required as a matter of law, citing to L.
15 So the adequacy of the 1989 SAMDA analysis 16 is not at issue. It's not part of the license renewal 17 application. The relevant question is not whether new 18 and significant information related to that analysis 19 is related to that analysis. The new and significant 20 information is related to the Commission's generic 21 determination in the rule which is supported by 22 several studies, the CPI, the IPE, the IPEEE, the 23 previously done SAMDAs including Limerick. And NRDC
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163 1 a waiver to challenge the regulation. So that's my 2 first point.
3 The second point that I wanted to make is 4 in terms of these additional mitigation measures. I 5 believe Judge Kennedy, you have some concern about how 6 could that not be new information that needs to be 7 addressed. And I just want to point out that the 8 Commission's Statement of Considerations at 61 Fed.
9 Reg. 28481 explicitly recognized the possibility that 10 future SAMA analysis could identify cost beneficial 11 SAMAs. But the Commission went on to conclude that 12 future SAMAs were unlikely to identify major plant 13 design changes or modifications that would be cost 14 beneficial and that any identified cost beneficial 15 SAMAs would tend to identify procedural and 16 programmatic fixes with any hardware changes being 17 only minor.
18 Given those conclusions, the Commission 19 reasonably determined to exercise its discretion under 20 NEPA to only consider one SAMA. The NRC, as I've 21 said, has to determine whether there's any new and 22 significant information which would paint a seriously 23 different picture, the consequences of realizing same 24 than what were considered by the Commission. But 25 certainly they explicitly recognize that additional NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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164 1 cost beneficial mitigation measures were a 2 possibility. So I don't -- the staff position is that 3 that is not new and significant in and of itself.
4 JUDGE KENNEDY: My head is rotating.
5 MS. KANATAS: Sorry.
6 JUDGE KENNEDY: Did you just agree with 7 Mr. Roisman that there is no SAMA for Limerick?
8 MS. KANATAS: I agree that there's no SAMA 9 submitted for license renewal in the license renewal 10 Environmental Report because the 1989 FES contained a 11 SAMDA for Limerick which is for the operating license 12 and that that SAMDA was a severe accident mitigation 13 alternatives analysis within the meaning of L and that 14 because of that no SAMA was submitted for the license 15 renewal.
16 JUDGE KENNEDY: Okay, so we're all in 17 agreement that none was submitted.
18 MS. KANATAS: For the license renewal.
19 JUDGE KENNEDY: Are we in agreement there 20 is one or there isn't one for Limerick?
21 MS. KANATAS: The staff's position is that 22 there is a SAMA for Limerick that was done in support 23 of the operating license and it's contained in the 24 1989 final environmental statement.
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165 1 let's go to new and significant information and 2 mitigation alternatives. I think you went through a 3 fair bit of discussion about whether any would be 4 identified, whether -- that doesn't imply we're not 5 going to look, does it?
6 MS. KANATAS: Absolutely not, Judge 7 Kennedy. We certainly are going to look at all the 8 information submitted by the petitioner, by any 9 scoping comments which actually NRDC provided scoping 10 comments that were very similar to the issues raised 11 in the petition any other information that comes in 12 that we --
13 JUDGE KENNEDY: We have from the petition 14 from NRDC at least a suggestion that there are 15 mitigation alternatives that have been explored since 16 1989 that haven't been looked at as yet for Limerick 17 and I guess I'm looking to see is that true? You say 18 the scoping comments and other material -- is that in 19 that mix of information?
20 If I understand the applicant, mitigation 21 alternatives -- my recollection is that they don't 22 need to be looked at because there's no significant 23 consequence changes. I guess I'm struggling. To me, 24 it just seems what's been maybe looked at over the 25 last -- since '89, there could very well be some new NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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166 1 information that could rise to significance and I'm 2 just struggling with how that doesn't -- I guess I'm 3 struggling first, doesn't raise it in the mix. And 4 then we can discuss if it's not in the mix, why it 5 would not be?
6 MS. KANATAS: I will try to answer your 7 question and if I don't, please let me know.
8 Certainly we recognize that it's new 9 information. Whether or not it's significant gets 10 back to as my co-counsel, Mr. Smith, laid out, it 11 would have to paint a seriously different picture of 12 the environmental consequences that were not from 13 1996.
14 Now whether or not that is the case, the 15 staff is doing its evaluation now. But certainly my 16 point was just to note that the Commission recognized 17 back in 1996 that future SAMA analysis could identify 18 other cost beneficial mitigation measures, but that 19 they still made the determination. They drew the line 20 and made the determination that if a SAMA had been 21 done for a plant, another one need not be for license 22 renewal given the other generic and site specific 23 studies that had been done and would continue to be 24 done for that plant.
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167 1 of new and significant information to make that whole 2 picture whole to connect all the dots and make 3 something -- I mean if we keep going out in time when 4 Limerick chooses to renew its license 20 years from 5 now again, I mean we've now got a SAMA that goes back 6 40 years. Something has to keep this to medium place 7 other than just a regulatory exemption. There's 8 something illogical about it.
9 I think Mr. Roisman makes a compelling 10 logical argument. I'm not sure yet if he makes a 11 compelling legal argument, but from a logic 12 standpoint, there's something here that just doesn't 13 seem to be gelling for me and that is we had this, 14 yes, there's an exemption.
15 Yes, I agree that Exelon did not have to 16 submit one as part of this application and we can come 17 to the staff obligations and you've gone through some 18 of that. How do we get -- how does this all work as 19 we move out in time? As things are discovered, 20 uncovered, revealed? We're still operating these 21 plants. Stuff happens. Improvements get made. There 22 are smart people out there. Things get suggested, get
- 23. reviewed, get looked at.
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168 1 pieced together.
2 If you don't have an obligation to do it.
3 They don't have an obligation to do it.
4 CHAIRMAN FROEHLICH: And the petitioners 5 are prevented from doing it.
6 JUDGE KENNEDY: I just don't know how it 7 works. I think I'm hearing they don't have to submit 8 it. You're not obligated to do it. They're concerned 9 that it's not being done. It all sounds wrong.
10 MS. KANATAS: In terms of them not 11 submitting a SAMA and NRDC's -- for license renewal --
12 and NRDC's concerns with that, that is a challenge to 13 the regulation. So while that could be something 14 litigated, if a waiver was submitted and granted by 15 the Commission, that is how that could be brought.
16 Certainly, too, as has been recognized a 17 petition for rulemaking could be sought if NRDC did 18 not believe that the current regulations implementing 19 NEPA that are in part 51 do not meet NEPA's 20 requirements. But it's not what was pled, does not 21 undermine the Commission's determinations and does not 22 constitute something that would meet the waiver 23 standards in this case. So the NRC staff does 24 recognize its independent duty to evaluate the 25 information as well as identify any new and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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169 1 significant information in relation to all generic 2 determinations in the regulation.
3 So I certainly understand your concern for 4 the on-going nature of the review and the events and 5 of things, and the staff is very aware and cognizant 6 of their duties to evaluate our response to Fukushima, 7 to September 11, to all the events that happened, 8 unfortunately. We do recognize our duty to react and 9 respond accordingly.
10 MR. ROISMAN: Mr. Chairman?
11 CHAIRMAN FROEHLICH: Sure.
12 MR. ROISMAN: Counsel seems to have 13 touched on something that may help at least clarify 14 what we're saying. If this were not Limerick, if this 15 were any plant that had not previously done what was 16 called SAMDA or something like that, the applicant, we 17 all agree, under 51.53, submit a SAMA analysis.
18 There's no question that we would be able to challenge 19 the SAMA analysis. We could make the same kind of 20 arguments that we've made here in terms of the 21 substantive deficiency and their admissibility would 22 not be in question assuming we agree, we would be 23 stating the basis for the specificity and the 24 supporting arguments.
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170 1 submittal of a statement in its Environmental Report 2 that says we don't have to do a SAMA analysis because 3 we did one before, the 1989 SAMA. And they say this 4 in 4.20. NRC has explained that severe accident 5 mitigation alternatives for LGS do not need to be 6 analyzed at the license renewal stage because the NRC 7 previously completed such a site-specific analysis in 8 its supplement to the FEIS, and they repeat the same 9 concept in paragraph 5.3 of their Environmental 10 Report.
11 So the question is is there no place a 12 member of the public could challenge the correctness 13 of that assertion? Their position is that's right.
14 You have no place that you can challenge the 15 correctness of the assertion. We can't challenge 16 whether or not we meet the exemption. We can't 17 challenge whether or not that document itself was 18 adequate to fulfill NEPA obligations this issue. You 19 can't challenge whether that document needs to be 20 updated with new and significant information. That is 21 such a remarkably different result for something that 22 was done 23 years ago would then occur if this very 23 same plant had never done that 1989 analysis assuming 24 they did a SAMA now.
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171 1 time an applicant completes a SAMA, any time they do 2 a SAMA, you don't have the right to challenge it or to 3 bring in new and significant information because the 4 Commission knows that there is a public right of due 5 process to challenge an assertion that's made by an 6 applicant. This applicant asserts that the 1989 SAMDA 7 meets the exemption, complied with NEPA, does all it's 8 supposed to do. We believe we have an absolute right 9 to challenge that assertion. It's in the 10 Environmental Report. They rely on it. This really 11 is happening without Hamlet. If the SAMDA is here, if 12 you get a chance to see it, there it is without the 13 table disaster.
14 If you get a chance to see it and look at 15 it, you can draw your own judgment. You can make a 16 conclusion about does this look like what the 17 Commission meant when it said do an adequate 18 evaluation of the severe accident mitigation 19 alternative looked at through the 2012 lens that we 20 were using. That's all we're asking to do in this 21 matter.
22 CHAIRMAN FROEHLICH: Mr. Polonsky.
23 MR. POLONSKY: If I may, Your Honor, what 24 Mr. Roisman has said is simply not true. There is a 25 way that they can challenge the 1996 rule in Section NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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172 1 L. There is a way that they can challenge all the 2 other provisions that they suggest won't meet NEPA if 3 L is implicated here and that is -- and it's already 4 in the regs and it's been there for a long time, 5 Section 2.335 which says if they want to in this kind 6 of proceeding and like many other petitioners before 7 them who have wanted to challenge new and significant 8 information for a Category 1 issue or anything else 9 accepted by rule, when there's a rule, you can't 10 challenge it in the license renewal proceeding absent 11 a waiver from the Commission. They simply haven't 12 applied. So to sit over there and way due process has 13 been violated, we've not had an opportunity, that's 14 frankly the regulations allow them that opportunity.
15 In addition, to suggest that a 1989 16 document of any kind is challengeable in a proceeding 17 20 plus years later as a NEPA document would wreak 18 havoc for license renewal applications across the 19 board because those documents are challengeable at the 20 time that they are issued. In fact, there have been 21 many challenges in the courts where the Army Corps of 22 Engineers or any other federal agency issues an 23 environmental document and it's litigated at the time 24 it's issue. You simply can't wait 20 plus years later 25 and try and challenge it then.
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173 1 CHAIRMAN FROEHLICH: Can they raise 2 challenges such as we've seen in the petition when the 3 staff issues the Supplemental EIS?
4 MR. POLONSKY: No, Your Honor. The issue 5 of category, you must use the Category 1 issues. New 6 and significant information raised on Category 1 7 issues are not challengeable. It doesn't matter 8 whether the applicant had that new and significant 9 information or the staff in its independent review 10 adds 150 other things that it thinks ought to be new 11 and significant information. Comments can be filed, 12 but if you want to challenge a rule and in this case, 13 the example we're using is a Category 1 issue, you 14 want to challenge a Category 1 issue which has already 15 been decided in the Generic Environmental Impact 16 Statement, you need a waiver from the Commission.
17 CHAIRMAN FROEHLICH: How about Category 2 18 issues that show up in the Supplemental EIS.
19 MR. POLONSKY: If it were a Category 2 20 issue that was not accepted by rule, then yes, that is 21 clearly challengeable. But once it's accepted by rule 22 and it's gone through a rulemaking process, we're now 23 back into Section 2.335 and the only way to get out of 24 that box -- and there is a way to get out of that box, 25 is to request a waiver from the Commission.
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174 1 MR. ROISMAN: Mr. Chairman?
2 CHAIRMAN FROEHLICH: Yes.
3 MR. ROISMAN: Just one thing. Appendix B 4 of --
5 CHAIRMAN FROEHLICH: I beg your pardon?
6 MR. ROISMAN: Appendix B of part 51, this 7 contains a table for Category 1 and Category 2. It is 8 a regulation. It's not a Statement of Consideration.
9 It's not guidance. It defines Category 1, footnote 2 10 at the very end of the document and it says -- the 11 environmental impacts associated with issue to 12 determine the quality of all plants if there's some
- 13. issue with plants a specific type of cooling system, 14 a single significance level has been assigned, and 15 mitigation of adverse impacts associated with the 16 issue has been considered in the analysis to determine 17 additional plant's specific mitigation measures and 18 not sufficiently beneficial to warrant implementation 19 which a generic analysis of an issue may be adopted in 20 each plant's specific review. There is no generic 21 determination of a plant specific -- one plant, not 22 even these three plants that we've been talking about.
23 One, Limerick. So it's not -- they have another name.
24 Whatever the name is, it's not Category 1. It might 25 be Category 2A. It might be Category 3. It might be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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175 1 Category 0. But it's not Category 1 because the 2 Commission defines what a Category 1 is and. this 3 report, SAMDA 1989 analysis.
4 So I don't think you can have a really bad 5 issue, if we're going to follow the regs, we're going 6 to stick to what the regs say. And they have other 7 arguments and as Mr. Polonsky said it doesn't matter 8 whether you call it Category 1 or Category 2, we think 9 we're entitled to it for a different reason. And I'm 10 only addressing just this one, this narrow reason, is 11 it a Category 1? It's not.
12 CHAIRMAN FROEHLICH: Staff counsel.
13 MS. KANATAS: Thank you, Judge Froehlich.
14 Yes, staff agrees with NRDC that SAMA is a Category 2 15 issue. SAMA is a site-specific issue and the 16 Commission has stated that it cannot expand generic 17 conclusions resulting from plant-specific IPEs, IPEES, 18 for example, to draw a generic conclusion.
19 And the staff -- I'm sorry, the Commission 20 did recognize that NEPA's regulation and the Limerick 21 decision required a consideration of mitigation 22 alternatives in its EIS and supplements. So the 23 Commission stated that a site-specific consideration 24 of SAMA is required of license renewal for those 25 plants for which the consideration has not been NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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176 1 performed.
2 As we've said repeatedly here, the site 3 specific Category 2 site specific consideration of 4 SAMA has been done for Limerick in a NEPA document and 5 as NRDC actually points out in their reply the SAMDA 6 was a site-specific analysis applicable only to 7 Limerick and is what NRDC calls a completed Category 8 2 analysis. That's at page 12 of the reply. So we 9 agree that SAMA is a Category 2 issue, but it's site 10 specific and here there was a site specific 11 consideration done.
12 CHAIRMAN FROEHLICH: Do you have any other 13 questions on 2 or 3?
14 JUDGE KASTENBERG: Is it appropriate to 15 just add on to what you said, however, there is an 16 exemption in this case? That's basically the 17 argument. I --
18 MS. KANATAS: That another one not be 19 done, that another SAMA need not be done for license 20 renewal because a SAMA has previously been done.
21 JUDGE KASTENBERG: And that's not 22 challengeable?
23 MS. KANATAS: That is not challengeable 24 absent a waiver because it's a generic determination 25 in the Commission's regulations.
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177 1 CHAIRMAN FROEHLICH: I think it's safe to 2 move on to Contention 4.
3 (Laughter.)
4 JUDGE KASTENBERG: When is it 5 environmentally appropriate?
6 CHAIRMAN FROEHLICH: Our broad question to 7 the parties on Contention 4 is does the ER address the 8 impacts of denial of the proposed license renewal?
9 And if so, where? I guess applicant we'll hear from 10 first and then the petitioners.
11 MS. LEACH: Thank you, Your Honor. Brooke 12 Leach on behalf of the applicant. I'm going to be 13 answering questions on Contention 4.
14 CHAIRMAN FROEHLICH: Okay.
15 MS. LEACH: And to address your first 16 question whether or not the EER addresses the impacts 17 of denial of the license renewal. The ER does address 18 the consequences of denial of license renewal.
19 Section 7.1 of the ER defines the no 20 action alternative as denial of license renewal and 21 then goes on to address two categories of impacts.
22 The first category of impacts is decommissioning and 23 those impacts are discussed in Section 7.1 on pages 24 7-2 and 7-3.
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178 1 impacts and those are energy alternatives. Section 2 7.21 of the ER starts out by identifying a 3 comprehensive list of possible energy alternatives and 4 this list includes new generation capacity, renewal 5 energy alternatives, power purchases from the 6 wholesale market, and energy savings through demand-7 side management.
8 This comprehensive list was then narrowed 9 done under NEPA' s rule of reason to a reasonable scope 10 of alternatives. And Exelon generally defined 11 reasonable, a reasonable alternative as one that's 12 capable of generating base load power in the region of 13 interest at the time that the first unit operating 14 license would expire and that's in 2024. And the 15 second unit then would expire in 2029.
16 In using that general standard, Exelon 17 came up with a group of seven reasonable alternatives 18 and if Your Honors will bear with me I'll go through 19 the pages on the ER that identify and discuss these 20 reasonable alternatives.
21 The first is fossil fuel fire generation 22 capacity and that includes both natural gas-and coal 23 and that's discussed on page 7-10 and 7-11 of the ER.
24 The next is purchase power from the wholesale market 25 and that alternative is discussed on page 7-11. The NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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179 1 third is new nuclear generation capacity and this 2 alternative is discussed on page 7-11 to 7-12. And 3 then we move into the renewable energy alternatives.
4 The first is wind energy as a stand alone and that is 5 discussed on page 7-12. Next is solar energy 6 discussed on page 7-13. And then contrary to NRDC's 7 argument in the petition the ER explicitly states that 8 in crafting its reasonable alternatives, Exelon looked 9 at more than just single generation resources and 10 that's where we took a look at combinations of various 11 resources.
12 The ER next goes into those combinations 13 and the combinations are wind and solar energy 14 combined with gas-fired generation and wind energy 15 combined with compressed air energy.
16 The corresponding environmental impacts of 17 these reasonable alternatives are considered in detail 18 in Section 7.2.2. There's about a 25-page discussion 19 about the environmental impacts of those alternatives 20 that were deemed reasonable. These environmental 21 impacts are then cross referenced into the no action 22 alternative in accordance with Commission precedent 23 that holds that the no action alternative discussion 24 can be cross referenced with adverse impacts from 25 other discussions.
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180 1 The reasonable alternative impacts are 2 then depicted in the role of comparison table in 3 Section 8.0. In addition, even though Exelon 4 ultimately did not consider demand-side management as 5 a reasonable alternative, Exelon took the extra step 6 of evaluating environmental impacts of demand-side 7 management and ultimately concluded that they were 8 small and cross referenced those impacts into the no 9 action alternatives as well.
10 In follow-up questions, I can break it 11 down.
12 CHAIRMAN FROEHLICH: Mr. Roisman, could 13 you address that same question, does the ER address 14 the impacts of denial of proposed license renewal?
15 MR. ROISMAN: Yes, to an extent.
16 CHAIRMAN FROEHLICH: I guess we want to 17 talk about that "to an extent."
18 MR. ROISMAN: Yes. I don't disagree with 19 the page citations of counsel. That's where they 20 purport to do it. It is what we criticized in our 21 Contention 4 and forms the basis for the disagreement, 22 the dispute that we have about the adequacy of their 23 consideration action.
24 I can expand on that if you want, but I 25 thought maybe you wanted to just know that answers it.
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181 1 CHAIRMAN FROEHLICH: We'll come back to 2 you.
3 MR. ROISMAN: Good, okay.
4 CHAIRMAN FROEHLICH: Staff.
5 MS. WOODALL: The Staff agrees that the 6 Environmental Report addresses the impacts of the 7 denial of the proposed license in Section 7.2 in 8 addition to the citations provided by the applicant 9 just now. I could go through them as well, but I'll 10 spare you.
11 The no action alternative is a little 12 different from the consideration of the alternative, 13 but in this case, it actually comes to be the no 14 action alternative. The alternatives to generation 15 are also part of the no action alternative. There are 16 consequences of the no action alternative. So while 17 separately addressed in the Commission's Statement of 18 Considerations and the DEIS, there are necessarily 19 also consequences of the no action alternative.
20 Therefore the applicant correctly represents and as 21 the GEIS states that the no action alternative or 22 refers to the scenario in which the NRC has not 23 remanded LGS operating licenses and as the DEIS 24 recognizes that there are several ways that fulfill 25 the generational alternatives that results in that.
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182 1 CHAIRMAN FROEHLICH: So are you saying 2 that the no action alternative is the same as the 3 denial of the license renewal?
4 MS. WOODALL: Yes. That's what the GEIS 5 says and that's what the staff would use going 6 forward.
7 JUDGE KENNEDY: Does the no action 8 alternative then include the denial of the license 9 plus the consequences of replacing the generation?
10 MS. WOODALL: The no action alternative 11 considers the impacts of what happens, the NRC role is 12 to consider the environmental impact of what happens 13 if the license is denied. So we consider 14 decommissioning which takes place at the plant and 15 generally impacts have already been determined whether 16 decommissioning happens in 20 years. The Commission 17 generally believes that that's not necessarily 18 discriminatory to the environmental impacts of that.
19 But what happens now if we consider the environmental 20 impacts to what happens if the license renewal is not 21 denied.
22 JUDGE KENNEDY: Is denied 23 MS. WOODALL: Is denied. I apologize.
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183 1 against the decommissioning only option and if you 2 look -- if I look at Table 80-1, they seem to have the 3 same environmental impact. So decommissioning only 4 and the proposed action seem to have the same 5 environmental impact. And then the table goes on to 6 look at the consequences of the decommissioning 7 option. So the replacement power environmental 8 consequences are added on to the decommissioning only.
9 It seems to me that there's some 10 significance to comparing the proposed action and the 11 base case decommissioning only option that should shed 12 some light on this whole question of whether the right 13 options are looked at, the wrong options are looked 14 at, not enough of this, not enough of that. Maybe I'm 15 misunderstanding Table 8-0 and we may have to go up 16 and down the table here to help me understand 8-0.
17 But if I compare the first two columns of Table 8-0 so 18 the proposed action underneath the first column of the 19 no action alternative, it seems to speak to a lot of 20 information, at least to me it does.
21 Now I'm beginning to wonder, since every 22 one of us have discussed the combination alternative, 23 no action and the consequences of decommissioning as 24 a combined action, it just seems to me that the base 25 case plus the proposed action, if you compare those NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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184 1 two, yes, I don't dispute going through the rest of 2 it, but doesn't that speak a lot to whether the first 3 two columns? They're identical, the environmental 4 impacts, of whether you implement the proposed action 5 or decommission the plant.
6 What you're suggesting is they can't just 7 decommission a plant. The region needs the power, so 8 you've got to add some other stuff. So all of those 9 work in favor of the proposed action. And what we're 10 debating is whether the proposed actions for 11 generation have a different environmental benefit. I 12 keep wondering why the base case compared to the 13 proposed action just doesn't tell the whole story.
14 Anything else is just a bunch of discussion.
15 No one talks about just the base case.
16 You've explained why, but there's -- to me, there's a 17 mountain of information in those first two columns, 18 unless I don't understand this table.
19 MS. WOODALL: Correct me if I'm 20 misunderstanding you --
21 JUDGE KENNEDY: I'm probably making it 22 much more confusing than it is.
23 MS. WOODALL: The ER analyzes the proposed 24 action in each of these determinations in the table 25 from the small R, the result of other analyses in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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185 1 ER resulting in that. And the base case 2 decommissioning small -- the commission's 3 determinations on decommissioning which generally have 4 been determined to be small. And so those are the 5 sources of both of those.
6 But in the GEIS, the staff recognizes and 7 this is our guidance for determining how we analyzed 8 the no action alternative under NEPA is that the 9 decommissioning actions that take place at the plant 10 are one part of what happens if we deny the license.
11 If we deny the license, we continue obviously to have 12 jurisdiction and will require them to decommission.
13 Hence, the impact of decommissioning, but those 14 impacts are generally, but not entirely, have been 15 determined generically already. And so that's that 16 part of that table.
17 But then at the same time if we deny the 18 license, GEIS recognizes as part of 8.2 of the no 19 action alternative, that there are other environmental 20 impacts that result from that and those environmental 21 impacts are resulting generally from the fact that you 22 are removing power that is currently being used from 23 the grid. And what are the impacts of replacing that 24 power?
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186 1 necessarily, but it happened that if you take off in 2 this case, 23 megawatts, that there will be 3 alternative impact from replacing that power. And so 4 we're adding that.
5 JUDGE KENNEDY: I think we're in 6 agreement. I guess we can sit here and we can debate 7 the columns of this table. I guess in my mind 8 anything you add to the base case works in favor of 9 the proposed action. So I mean we may get argument 10 from petitioners that say well, you didn't do enough 11 of this and you didn't do enough of that. You picked 12 the wrong combinations, but it appears that any 13 combination on top of the base case is going to work 14 in favor of the proposed action.
15 But yet no one -- it just seems to me 16 that's the obvious answer to this question, 17 alternatives to the proposal -- the base case is 18 equivalent to the proposed action. And anything you 19 do in addition to the base case is going to be a 20 negative environmental impact or is not in favor of 21 implementing anything but the proposed action.
22 So whether we debate whether there's a 23 1,000 megawatts of DSM or 10 megawatts of DSM, it 24 doesn't seem to me to be relevant because it's going 25 to have an effect on the balancing that would push you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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187 1 to selecting the proposed action. That's the way I 2 interpret the table. I'm looking for agreement.
3 I think when you communicated it back to 4 me, I read the table the same way you do. You would 5 have to take these in combination. But if you take a 6 step back from that whole table, anything you pick in 7 addition to decommissioning works in favor of the 8 proposed action. It doesn't say you shouldn't go 9 through the exercise, but I mean if we drop this, 10 doesn't take this up to a high level, anything you do 11 but decommissioning seems to weigh in favor of the 12 proposed action.
13 I guess I'm looking to see if I'm reading 14 this table right.
15 MS. WOODALL: I believe you're reading the 16 table right. I'm a little confused on the chronology 17 you're using and maybe I'm just not understanding.
18 But essentially these are possible result of a no 19 action alternative which if we do not verbalize them, 20 these things could happen, these are the environmental 21 impacts that we are evaluating of denying the license.
22 Whatever those impacts, do they range all across the 23 table depending on exactly what quantifier you're 24 looking at, and they're analyzed. But I'm not sure 25 if I can go further than that.
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188 1 JUDGE KENNEDY: You're exactly right. To 2 me, I just cut to the quick, doing nothing else but 3 decommissioning is equivalent to the proposed action.
4 So anything you do in addition to decommissioning 5 works in favor of the proposed action. That doesn't 6 mean you don't go through the exercise, but I don't 7 see anything here that it doesn't --
8 MS. WOODALL: No, I mean the no action 9 alternative is simply it's required under NEPA. The 10 Commission requires us to include it. There's no 11 dispute that the staff will consider it and that the 12 applicant has considered the no action alternative as 13 part of the base line, but generally it is a brief 14 discussion and it is there to provide a base line for 15 information in this analysis that provides, you know, 16 what would happen.
17 JUDGE KENNEDY: Mr. Polonsky -- I mean Ms.
18 Leach.
19 MS. LEACH: Thank you, Judge Kennedy, I 20 just wanted -- we agree with your assessment that 21 comparing the two columns, we're only going to add on 22 more impacts the more alternatives we add on. But we 23 did want to note that the first column under proposed 24 action that reads small, all of those impacts, those 25 are not generic determinations and they could be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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189 1 different for other plants. It could be large for 2 another plant and we believe that under NEPA's rule of 3 reason we hake provided sufficient information in this 4 table and in the corresponding text in Section 7.1 and 5 7.2 for the Commission to take a hard look at the 6 environmental impacts of preserving the option of 7 license renewal for energy planners.
8 JUDGE KENNEDY: Okay.
9 MR. ROISMAN: I can certainly understand 10 why you reached that conclusion when you read this 11 chart and I confess that if I had written the chart, 12 you'd have reached the opposite conclusion. It's all 13 in the writing of the chart, of course. One column, 14 specifically is the DSM column. You'll remember that 15 in the alternative discussion, which is incorporated 16 by reference, is that it was disregarded as a 17 reasonable alternative for this plant because it won't 18 achieve what Exelon wants to choose to be able to 19 sell, 2300 megawatts of power daily for 20 more years.
20 And I can understand that, but that's not 21 what NEPA requires and it's not what the Commission's 22 regulations require. And so the heart of our 23 challenge is why, to answer the question that's in 24 there, the kind of quote, tricky question, is this an 25 omission or an inadequacy? It's an omission and it's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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190 1 an inadequacy. It omits a proper consideration of the 2 likely consequences of the no action alternative.
3 Let me give you an example. First of all, 4 there is no discussion of what the world might look 5 like in this energy region thirteen years from now, or 6 even ten years from now. These are the likely 7 consequences. That might be true in terms of this 8 afternoon.
9 So to begin with, we have to think about 10 what the world would be like in 13 years. I admit 11 there's a certain amount of, I'll use the term 12 speculation. But as you probably know, utilities, 13 Exelon included, have been engaged in speculating with 14 20-year plans for decades. It's how you do planning 15 in the industry because you don't instantly get a 16 power plant on line the moment you have the power.
17 You have to plan. So you're looking at what it would 18 be like in five years, ten years, fifteen years.
19 So the first thing that's missing is that 20 there's no look at what are the likely possibilities.
21 The second thing that's missing is that in looking at 22 what the consequences are, forgetting about for the 23 moment whether these are the likely ones or not likely 24 ones, the test was would it meet the 2300 megawatt 25 generation the plant currently meets? The regulations NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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191 1 say, and surely we both agree, that the need for power 2 is not an issue in the licensing rules. That's a 3 sword that cuts both ways. We don't argue that there 4 is a reduced need for power. And they don't get to 5 argue that there's an automatic need for power.
6 So we don't assume that there will be a 7 2300 megawatt demand capacity. So all the columns to 8 the' right of decommissioning, with gas fire 9 generation, coal fire, all of those, are all meeting 10 a standard which Exelon wrote into its ER. We're only 11 concerned about things that will happen that will 12 replace all of this generating capacity. That's the 13 second problem.
14 The third problem is that they have not 15 done an evaluation of the costs and benefits of these 16 various "consequences that might ensue. So for 17 example, they could have done an analysis in which and 18 I think this would be supported on this issue, that if 19 things just remain exactly as they are today and 13 20 years from now you just turned off one of these 21 plants, and in 18 years you turn it off the other, 22 that there would be black outs and brown outs and 23 people would suffer and there would be huge adverse 24 consequences.
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192 1 everybody that 13 or 18 years from now these plants 2 would not be operating, it's possible that what you 3 would have is a completely changed way of dealing with 4 energy. Instead of trying to deliver from large, 5 central generating sources you might have dispersed or 6 diversified energy sources. People might not look for 7 solar energy in a 1,000 acre lot. You might look for 8 solar energy on their roof. They might not worry that 9 they need 2300 megawatts of electricity because they 10 might have found more than 2300 megawatts of 11 electricity that they can save by using more energy 12 efficient items which woUld save them money, would be 13 a benefit.
14 So a true analysis under the no action 15 alternative is supposed to look at both the end of 16 this plant's operation and the relevant time period.
17 And what are reasonably likely things to happen if 18 that were to occur? And our criticism is with their 19 failure to do that. That's why it's a contention of 20 omission. They don't look 13 to 18 years out, they 21 look at essentially today. They don't put the 22 alternative analysis into the context of what would be 23 real consequence, but they assume that the consequence 24 would be the need to provide 2300 megawatts of 25 generating capacity which we reject. I think the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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193 1 Commission's regulation also says you should reject.
2 I submit to you that that is the flaw in 3 the analysis which they have done. Did we then go on, 4 to sort of touch a little bit, on what's coming next.
5 Did we go on and lay out all of the different 6 scenarios that we thought were likely consequences?
7 No. We weren't required to do that. That's not the 8 obligation of the intervener to write the 9 Environmental Impact Statement. Our job is to point 10 out the deficiencies, and the deficiencies of this 11 analysis are well illustrated by Table 8.0-1 which 12 summarizes all the wrong things. There are no 13 benefits listed of many of the alternatives. It's 14 only disadvantages. And there may be some benefits.
15 What would be the benefits of filling of 16 the gap with purchased power? I don't know. It might 17 mean that utilities in some other state would make 18 more money and might end up being able to use that 19 money in better ways to improve demand side management 20 and their jurisdiction. They might be under a Public 21 Service Commission that requires them to reduce their 22 rates under certain circumstances. I mean, there are 23 a lot of possible benefits.
24 So it doesn't automatically follow that if 25 all is Column 1 and 2 proposed action in basic NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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194 1 commission, anything after that is out. The GEIS 2 recognizes that there could be benefits on demand side 3 management that would actually be subtracted so that 4 you could have in front of you a record that would 5 enable you to say on balance it looks to us like it 6 makes much more sense to not leave this option open, 7 but to let these likely consequences which we think 8 by saying no in 2012, if these consequences come into 9 existence and end up better than it would be if you 10 let this plant operate for another 20 years.
11 Finally, this idea that what is small or 12 the proposed action was small decommissioning or what 13 is small for gas-fire generation, that all those 14 smalls mean the very same thing quantitatively, of 15 course you know that's not true. The small 16 designations don't provide a quantification that would 17 allow you to make a real judgment if we had both 18 pluses and minuses on the table, whether or not saying 19 no would be better than saying yes. So because you 20 don't have the pluses at this point there isn't any 21 point in arguing the minuses.
22 As it stands, as the table stands, what 23 Judge Kennedy said is absolutely right. Anything 24 after you've looked at the decommissioning 25 consequences is added, and therefore if it still works NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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195 1 with just the decommissioning, everything else won't 2 make any difference. But we contend the charge, the 3 premise on which the chart is guilty, the nature of 4 the analysis is wrong. Therefore, it doesn't include 5 the proper analysis because it's omitted.
6 JUDGE KENNEDY: Can you help me understand 7 the pluses? We'll be of the record.
8 (Whereupon, the above-entitled matter went 9 off the record at 2:41 p.m., and resumed at 2:42 p.m.)
10 CHAIRMAN FROEHLICH: We'll be back on the 11 record.
12 Judge Kennedy?
13 JUDGE KENNEDY: A couple of follow-up 14 questions.
15 MR. ROISMAN: Sure.
16 JUDGE KENNEDY: I'll start with the harder 17 one first, at least for me. You talk about pluses.
18 Could you give me an example of what you're talking 19 about in the world of pluses? Are these negatives?
20 The environmental impacts, are they construed as 21 negatives?
22 MR. ROISMAN: Yes. What is listed in 23 Table 8.0-1 summarized there are all negatives. And 24 what I mean by -- let's take) demand-side management 25 as an example. If you at your home can reduce your NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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196 1 energy consumption by 1,000 watts a month, and I don't 2 even know if that's a reasonable number, unfortunately 3 my utility charges me for the plant that got shut down 4 because I said it wouldn't shut down eventually and 5 now I'm paying for it. But if you could reduce your 6 electric bill and still have all the amenities that 7 you had before, you still had your air conditioning.
8 You still had your TV and all that sort of stuff and 9 you save $50 a month that's a plus. We view that 10 across all the customers of the region, that's a big 11 plus.
12 JUDGE KENNEDY: So it's an economic plus.
13 MR. ROISMAN: It could be an economic 14 plus. The second plus could be that if you use 15 distributed generation, that is instead of large 16 facilities with long power lines that crisscross 17 through the country, you have generation much closer 18 to the source. Walmart had its own energy source from 19 its own solar panels on its roof. The parking lot had 20 solar panels. In the old, old days, farmers used to 21 have wind mills at their farms to generate electricity 22 that they used at the farm before rural electricity 23 came in.
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197 1 sites, a site like Limerick could be returned to 2 something that was more rural and pastoral instead of 3 a central generating facility with large commercial, 4 industrial development. So that's another plus that 5 wouldn't necessarily translate into an economic --
6 JUDGE KENNEDY: I guess I can understand 7 the plus in the environmental context. You reduce the 8 need if you move away from base load generation into 9 more distributed. How does the economic benefit get 10 into this context here under NEPA?
11 MR. ROISMAN: Ultimately, NEPA has to a 12 large extent tried to translate environmental values 13 into economic factors, even to the point of what's the 14 environmental value being able to go to the Grand 15 Canyon and see that extraordinary thing. And so they 16 started to look at well, how much do tourists pay to 17 go and that sort of thing. But in a way, they, are 18 intangibles that they're making into economic.
19 So at the end of the day, you would take 20 all these economic pluses, and all the economic 21 disadvantages, and you would balance them up and you'd 22 see where you came out and if it was an economic 23 advantage to not relicense, there would then have to 24 be a rational basis for choosing not to turn it down.
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198 1 worse, our system tends to put rational into economic 2 terms.
3 JUDGE KENNEDY: In the context of the NRG 4 regulatory process have you see this economic back and 5 forth? Do you have an example you can --
6 MR. ROISMAN: Outside of the SAMA 7 analysis, no. But it's very prevalent. In fact, it 8 is the touchstone with the SAMDA analysis.
9 CHAIRMAN FROEHLICH: So Mr. Roisman, I 10 understand your argument. You're saying that the 11 applicant's environmental impact study is somehow 12 deficient or lacking because it doesn't factor in 13 economic benefits and other alternatives or 14 combinations of alternatives beyond what they've done 15 in Table 8, 8.0.1?
16 MR. ROISMAN: Yes and no. It says even 17 more fundamentally than that that the way in which 18 they chose how to do this analysis resulted in that 19 consequence, but our attack is on the way they chose 20 to do the analysis, ignoring the gap between now and 21 13 and 18 years from now; failure to look at likely 22 consequences; and the failure to look at anything that 23 wasn't going to simply replace 2,300 megawatts of 24 generated power.
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199 1 when you're looking for alternatives as part of a NEPA 2 analysis that you are to look at alternative ways of 3 securing what is not being renewed?
4 MR. ROISMAN: Absolutely.
5 CHAIRMAN FROEHLICH: That's appropriate.
6 MR. ROISMAN: That's right. And that's 7 really where the applicant's ER makes its most 8 fundamental error. That's the discussion of 9 alternatives in Section 7 of the ER is doing just 10 that. It starts with the premise we are a generator.
11 We make money selling electricity. Any alternative 12 has to fulfill the same goal that we have here which 13 is to continue selling electricity 2300 megawatts 14 worth and in the context of alternatives that's what 15 you do.
16 In the no action alternative, you do 17 something very different. And that's where Exelon is 18 falling down. When it decided to import some of the 19 data from the analysis of alternatives into the no 20 action alternative it neglected to look at whether the 21 consequences of that transfer was likely or not. In 22 other words would anybody really be likely to go with 23 the coal-fired generation? Candidly, I don't think 24 so.
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200 1 a massive solar unit that they are talking about? I 2 don't think so, but what's missing is they don't tell 3 us why that is a likely consequence. They just tell 4 us it's possible. So the flaw is that when you get 5 over to the no action alternative, that is the 6 alternative.
7 There aren't alternatives. The 8 alternative is turn it off, 13 and 18 years from now.
9 Then look at what the consequence would be of that and 10 decide whether those consequences are preferable, the 11 same as going ahead with this action, or clearly less 12 preferable. They haven't done that.
13 So we have a deficient analysis.
14 When they said to us in their answers, oh 15 wait, we've done all of this over here in the 16 alternatives. We then did -- maybe that's just sort 17 of the lawyer in me -- someone who lays out the bait 18 and you always go out and take a bite. We decided all 19 right, we're going to take you on on your claim that 20 your analysis of alternatives in Section 7 fulfilled 21 the kind of analysis that you should have done in 22 Section 8. And so we were more specific in our answer
.23 than we had been previously because that wasn't our 24 contention. Our contention was you should have looked 25 at these things in the first instance and you didn't.
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201 1 They tried to say they did. We showed why they 2 hadn't.
3 CHAIRMAN FROEHLICH: Ms. Leach?
4 MS. LEACH: I will try to respond in turn 5 to a few points that Mr. Roisman made. The first 6 point that I want to make is that the no action 7 alternative is governed by NEPA's rule of reason. And 8 we're going to keep going back to that point in all of 9 my points. The no action alternative, it's limited by 10 the rule of reasons. The rule of reason does not 11 require that the applicant look at economic costs and 12 benefits of the no action alternative or the NEPA 13 power.
44 Essentially, NRDC is arguing that DSM was 15 considered in combination of other alternatives that 16 the NEPA power would be less and the Commission's 17 regulations are clear that an ER for license renewal 18 application does not need to address the NEPA power.
19 MR. ROISMAN: I'm sorry, I didn't hear the 20 last --
21 MS. LEACH: I'm sorry, does not need to 22 address the NEPA power.
23 MR. ROISMAN: Thank you.
24 MS. LEACH: And with respect to NRDC's 25 argument that Exelon did not take into account the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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202 1 planning time in between the potential denial of the 2 license renewal application and the shutdown of the 3 first unit in 2024, that assertion is plainly wrong.
4 First of all, we're not required to look at that under 5 NEPA's rule of reason.
6 NEPA's rule of reason requires that the ER 7 provide sufficient information to the NRC so that it 8 can take a hard look at the environmental impacts of 9 alternatives including the no action alternative to 10 the proposed action. It does require us to do an 11 exercise in power planning and we did look at the 12 current portfolio of energy in PJM in our discussion 13 of the reasonable alternatives and in this discussion 14 we even included a discussion of emerging 15 technologies. For instance, wind energy in 16 combination with compressed air energy storage, that's 17 not a possibility today.
18 There's only two compressed air energy 19 storage facilities in the world right now and there's 20 one planned in Ohio some time in the future, but 21 hypothetically, these could be possible. So we were 22 over-inclusive in what we considered could be 23 reasonable at the time of the first unit expires in 24 2024. So we did consider the planning time in 25 between.
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203 1 And finally, NRDC's argument that DSM 2 should have been included in the table was not a 3 material dispute. We had a discussion of the 4 environmental impacts in Section 7 in the narrative 5 and it would be -- this Board would be flyspecking the 6 ER to determine that we needed to just roll over those 7 small conclusions into an extra column on the Table 8 8.0 and that wouldn't make -- that would still not 9 make any difference, but there's still adequate 10 information in the table to allow the NRC to take a 11 hard look at the environmental impacts of no action 12 and compare those to the environmental impacts of the 13 proposed action.
14 CHAIRMAN FROEHLICH: Thank you. Ms.
15 Woodall.
16 MS. WOODALL: I would like to make a few 17 points in response to Mr. Roisman and the applicant's 18 response.
19 First, to the extent that we're talking 20 about future production or speculation, the point that 21 needs to be considered in this case is the 2024 date.
22 What can be implemented that's reasonable by 2024? I 23 mean we can think about a lot of things that can 24 happen in 2050 or 2400. Hopefully, we'll have an 25 energy solution, but that's the relevant date for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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204 1 considering what needs to be reasonable. And the 2 applicant addressed that and projected to 2024 and 3 alternatives and that's what we consider to be 4 reasonable, even though we're taking major federal 5 action now.
6 The other point I would like to make and 7 we went through quite a bit on this is the cost and 8 benefits, but the NRC has conclusively determined that 9 51.53(c) that the cost and benefits are not to be 10 analyzed in license renewal as part of the ER 11 50.51(c). Basically, the ER for license renewal 12 application is not required to include either the 13 discussion of the NEPA power or the economic cost and 14 benefits of the proposed action or alternatives unless 15 we get to mitigation measures which is what we see 16 discussed in mitigation measures, but it's not 17 required to be included and we do not consider it as 18 part of the ER unless it meets the next part of that 19 sentence.
20 The other point I would like to make is 21 that in terms of NEPA's rule of reason, the Commission 22 has pointed out specifically and the point of no 23 action alternative and hydro-resource, in fact, CLI-24 11, CLI-0104, that even where the intervenors may 25 prefer -- intervenors in that case -- may prefer the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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205 1 no action alternative, and NEPA imposes no obligation 2 to select the environmentally benign alternatives and 3 it does not dictate Agency policy or determine the 4 fate of the contemplated action.
5 And the final point I would like to make 6 is that many of these arguments regarding CSP, whether 7 based on solar power is an option, whether we can 8 implement DSM, these are all factually-based arguments 9 that were not included in the petition. The petition 10 simply referenced distributable renewable energy, 11 combined TM power, all forms of DSM and basically the 12 only references to any basis that these could be 13 viable alternatives by 2024 or that they should be 14 analyzed. All of the information in the reply that 15 substantively addressed things like battery storage 16 and those things, those were not included as part of 17 the petition.
18 And the staff opposes the admission of 19 Contention 4 because it was not adequately supported.
20 If the petitioner wishes to challenge the no action 21 alternative, they need to point to something that 22 shows that there is actually a predictable consequence 23 and an actionable alternative other than what was 24 already presented in the no action alternative. And 25 the petitioner failed to do that.
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206 1 In the reply, neither the NRC staff nor 2 the applicant, had the opportunity to respond to that.
3 So that's the reason we opposed the contention as it 4 is pled because in order to challenge the no action 5 alternative analysis which is applied in the ER, you 6 must actually point to some viable no action 7 alternative, rather than just pointing to some various 8 deficiency when that is provided.
9 CHAIRMAN FROEHLICH: Mr. Roisman, can you 10 point to some minimal factual or legal foundation to 11 support this fourth contention that was in the 12 petition, putting aside the additional information 13 that came in in the reply?
14 MR. ROISMAN: Sure. In the petition, in 15 the declaration from Mr. Paine, in paragraph four 16 which is on page two of his declaration, it says 17 "Exelon submitted an environmental report in 18 conjunction with its license renewal application, but 19 did not adequately consider the environmental 20 consequences of the no action alternatives.
21 Specifically, the ER unreasonably misapplies NRC 22 guidance from the 1996 GEIS that limits the set of 23 reasonable alternatives for meeting a defined 24 generating requirement to analysis of single, discrete 25 electric generation sources. As a consequence of his NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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207 1 misapplication, the ER arbitrarily limits and unfairly 2 conflates consideration of the no action alternative 3 with the same set of alternatives that it deems 4 reasonable for analysis as single, discrete electric 5 generation sources."
6 So one support is the applicant's ER 7 itself. It specifically says we are looking at the no 8 action alternative by only considering discrete 9 generating sources, leaving DSM completely out of the 10 analysis. So that's one factual statement.
11 CHAIRMAN FROEHLICH: We're on a roll.
12 Show me some more of this argument in the petition.
13 MR. ROISMAN: All right, so in number 14 seven, still in the Paine declaration at page three at 15 the bottom, "Unlike consideration of reasonable 16 alternatives to meet defined generating requirement 17 represented by a particular base load nuclear power 18 plant, mandatory consideration of the environmental 19 impacts of the no action alternative defined as a 20 decision to not be licensed LGS Units 1 and 2 21 necessarily involves making an informed projection of 22 the likely portfolio of PGM electricity system 23 resources available in the region served by LGS 24 beginning 13 years and 18 years hence that could 25 reasonably be expected to supply the energy services NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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208 1 currently supplied by LGS. These reasonably 2 foreseeable system resources include all forms of DSM, 3 waste heat co-generation, combined heat and power, and 4 distributed renewable energy resources in addition to 5 the 'single discrete electric generation sources' 6 viewed by the applicant."
7 So there we've identified both the absence 8 of consideration of certain kinds of consequences and 9 a failure to include an analysis of what are the 10 likely consequences. The ER does not have that 11 analysis in it. So until we see that analysis, it's 12 not our obligation to say well, if you did do that 13 analysis this is what you should have found. That's 14 not our obligation. Until the ER or if the ER 15 doesn't, until the DSEIS comes up with some analysis 16 that purports to meet that obligation.
17 So the contention stands or falls on 18 whether the Board agrees that it's a mistake to look 19 only at one large generating source and whether it's 20 a mistake to not have an analysis of the likely 21 consequences of the shutdown of this facility 13 and 22 18 years hence.
23 CHAIRMAN FROEHLICH: Ms. Woodall, would 24 you like to be heard on Mr. Roisman's response?
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209 1 no action alternative, the Commission has been clear, 2 as well as other licensing boards that it cannot 3 merely -- petitioner challenging an actionable 4 alternative cannot merely say that any no action 5 alternative would be acceptable. The GEIS recognizes 6 that there are thousands of possible combinations that 7 could be elected to replace a generating station.
8 And to step back just a second, I do want 9 to point out that the GEIS at 8.2 does recognize that 10 in terms of our discussion of base load power and 11 whether 2300 megawatts would be appropriate. At 8.2, 12 the GEIS recognizes that denial of renewed license of 13 power generating capability may lead to a variety of 14 potential outcomes.
15 In some cases, denial may lead to the 16 selection of other electric generating sources to meet 17 energy demands as determined by appropriate state and 18 utility officials. In other cases, it may lead to 19 conservation measures and/or decisions to import 20 power. But in all of that, we're assuming that the 21 environmental impacts resulting from denial require at 22 least some consideration of replacement of that power.
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210 1 terms of what are the impacts of denial of the license 2 are going to be at least in some form or fashion how 3 that power is going to be replaced and the 4 environmental impacts of replacing that power. That 5 doesn't speak to the applicant's purpose and need as 6 they might look in a COL or an ESP proceeding. It's 7 a different theory. But at the same time, that's what 8 we're looking at in this case.
9 Otherwise, as a petitioner inclusively is 10 reading from the Paine declaration, the points that 11 they make are not supportive. In the no action 12 alternative, other boards have said that petitioner 13 must show that the proposed alternative put forth are 14 predictable consequences in no action alternatives and 15 that's in USCC 62 NRC 585. In another case, in 16 private fuel storage where the petitioner did not 17 specify any environmental effects, the ER failed to 18 consider or did not specify any advantages of the no 19 action alternative at CLI 0404.
20 Those are examples of where the Commission 21 has required a petitioner challenging the no action 22 alternatives which could include many different things 23 to point to something other than this mere list of 24 possibilities to show that these are viable. And 25 that's also supported in federal case law supporting NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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211 1 the no action alternative specifically Association of 2 Public Agency Customers BVPA, 9th Circuit 1997 which 3 we've also cited in our brief where as part of the no 4 action alternative they require them to point to what 5 makes your no action alternative viable.
6 JUDGE KASTENBERG: Slightly different --
7 CHAIRMAN FROEHLICH: Hold it for a second.
8 Ms. Leach, did you want to respond?
9 MS. LEACH: Yes. If I could just add on 10 to what staff counsel was just stating, arguing 11 regarding the unsupported allegations in the petition 12 and in the Paine declaration. The first section of 13 the Paine declaration that Mr. Roisman cited for us 14 this afternoon is the paragraph four that alleges that 15 we only considered single and discrete resources in 16 the no action alternative. In making that assertion, 17 NRDC is misinterpreting our ER. We explicitly state 18 in our ER that we are considering more than single 19 discrete resources. We look at combinations and we 20 also look at demand-side management.
21 With respect to paragraph seven, it has 22 the one sentence that identifies certain system 23 resources, waste heat co-generation, combined heat and 24 power, distributed renewal energy resources and demand 25 side management. None of these terms are defined.
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212 1 They're not supported and NRDC simply has not met its 2 pleading obligations under the contention 3 admissibility standards. This is not notice pleading 4 and NRDC has given us no support or definition for any 5 of these terms that are in the Paine declaration.
6 JUDGE KASTENBERG: Unless there was 7 something, Mr. Roisman has something he wanted to 8 respond to here.
9 MR. ROISMAN: Yes. I wanted to add one 10 thing here. Both counsel seem to start from the 11 premise that the ER addressed what we said they didn't 12 address and then say well, once the ER addresses it 13 you have a bigger obligation. I don't quarrel with 14 that.
15 When the ER says that it's looking only at 16 generating sources that will replace all the power, it 17 makes a mistake. It makes a mistake under the no 18 action alternative analysis that's required. You 19 don't have to go beyond that. We don't have to say 20 here are all the alternatives that you could have 21 looked at, but you didn't look at any of the 22 alternatives except this narrow group and the 23 regulations and Commission's rules say you can't limit 24 it to that. So that's number one.
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213 1 of a consideration of likely consequences, we say ER 2 does not attach to its analysis either in the 3 alternatives portion or in the no action alternatives 4 portion any analysis of the likelihood of these being 5 real. So why would we have an obligation at that 6 point to offer things that we think are likely until 7 the applicant first meets its initial burden to take 8 a shot at that question. Maybe we'll agree with them.
9 Maybe they'll say oh, you know, when you really sit 10 down and look at this, DSM looks like the most likely 11 thing that will happen. Demand-side management is 12 growing.
13 All we've heard from the applicant is 14 well, it's true we didn't put it in the no action 15 alternative, but we could have. Well, we're here 16 about what you could have, but didn't do. That's why 17 we're here.
18 The third thing we're hearing, rule of 19 reason, rule of reason, rule of reason. It sounds 20 like the perfect solvent. It dissolves everything, 21 but actually the rule of reason means that you must be 22 reasonable in what you do. Is it reasonable for an 23 applicant to come up with the set of alternatives that 24 they look at by assuming that all the power they 25 currently generate will have to be generated later?
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214 1 No, I don't think that's reasonable. We're not asking 2 them to get fanciful. We're asking them to get real.
3 They have a planning program. This isn't a utility 4 that makes it up every morning. They've got a plan.
5 They know whether they want to build more capacity of 6 the PJM system. They didn't share any of that in the 7 licensing application, in the ER, because they didn't 8 want to talk about likely consequences. They didn't 9 want to tell you what they thought was going to happen 10 13 and 18 years from now. So we said that's not 11 appropriate.
12 So it's not reasonable for them to ignore 13 and it's reasonable for us to ask them to do it 14 without giving them our own version of what we think 15 the world might look like 13 to 18 years from now if 16 you turn down the plant. It's not our obligation to 17 prove the ER. It's their obligation to produce a 18 legally sufficient one. Our position is that they 19 have not done that. We would note that in the GEIS, 20 specifically, the GEIS says that DSM is a reasonable 21 consequence of the no action alternative. Where is 22 that in the applicant's discussion of no action 23 alternative? Nowhere.
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215 1 have a big nuclear generating facility operating.
2 Where is that discussion here? It's not discussed.
3 Those are in the GEIS which in other contexts today 4 they pointed to and said here's the bible, here is 5 what you have to go by. So yes, this is a contention 6 of omission and we think they have omitted those 7 considerations.
8 JUDGE KASTENBERG: That's what I wanted to 9 get at. When I first read Contention 4, one of the 10 first things that came to me well, is there guidance?
11 Does the NRC have some guidance with regard to what 12 actually should be in the no action alternative?
13 And Mr. Flyntz came up with NUREG 1555 14 which is environmental standard review plan. This is 15 the plan that the staff is supposed to use in 16 evaluating the no action alternative. And my cursory 17 reading of it is that in some ways they satisfy it 18 because it specifically says you have to look at 19 decommissioning and you have to look at some 20 alternatives and so on.
21 What I'm gathering from what you said 22 today is that you're questioning and see if I'm right, 23 you're questioning the whole concept at a more 24 conceptual stage of what would really in your view 25 constitute a no action alternative, rather than at the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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,216 1 content level which is what they're required to review 2 and what apparently the applicant has given them to 3 review in accordance with the Standard Review Plan.
4 Would that be correct?
5 MR. ROISMAN: I think it's fair to say 6 that our view of NRC internal guidance document that 7 you referenced is a view that presumes from the idea 8 that no one would ever say no to a nuclear power 9 plant. And if you start with that premise, then you 10 come to that guidance.
11 If you, however, are willing to have an 12 objective evaluation of particularly here, I mean if 13 we're talking about a plant that is going to end its 14 40-year license in 2 years, we'd be in a much 15 different situation, but here with this much lead time 16 and to Exelon's credit they've provided that. There's 17 a lot that could be done to look at this question and 18 come up with a reasonable resolution. The ER doesn't 19 do that in our judgment.
20 JUDGE KASTENBERG: Any comment on either 21 side.
22 MS. WOODALL: Your Honor, I would just 23 like to make a quick point regarding the DSM issue 24 addressed earlier and the need for power. The NRC 25 presently does not consider need for power in license NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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217 1 renewal. When we consider DSM as part -- as the GEIS 2 indicates that consideration of conservation measures 3 is appropriate. We're considering the impact of such 4 conservation measures. We're not considering the need 5 for power whether DSM drops enough to remove a nuclear 6 generating plant from the group.
7 I want to specify that when we're 8 considering those under NEPA even under the no action 9 alternative, we have produced a list of environmental 10 impacts resulting from that no action alternative.
11 And that's a distinction in the DSM. To the extent 12 that the petitioner is challenging the need for power 13 and whether Limerick needs to be on the grid, 14 essentially, as I understand it here, they're not 15 allowed to challenge that in this particular instance 16 precluded in license renewal.
17 The other point that I would like to make 18 is that the petitioner continues to emphasize that the 19 ER does not feel that the likelihood of any -- the 20 likely consequences of the renewal. Well, the 21 alternatives presented in the ER and in the no action 22 alternative are looking at things that are reasonable 23 alternatives up to 2024 and the issue with this 24 particular contention is the petitioner has not put 25 forth any reasons why, what the ER chose are not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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218 1 likely. There's no supporting factual basis to show 2 that what is presented is unreasonable and not a total 3 reply.
4 CHAIRMAN FROEHLICH: Ms. Leach, do you 5 have a comment?
6 MS. LEACH: If I could just add on to that 7 comment. Each of the reasonable alternatives 8 presented in the ER is a possible or likely 9 consequence of no action. That is what we have said 10 from the very beginning. The no action alternative 11 has denied the license renewal and we look at two 12 categories of impacts, number one, decommissioning; 13 number two, energy alternatives. Therefore, Exelon's 14 alternative analysis is reasonable under NEPA. NEPA 15 doesn't require infinite study. We don't -- we could 16 come up with infinite possibilities of what the power 17 portfolio is going to look like in PJM in 12 years and 18 how DSM can be combined with 15 other energy sources, 19 but that's not what NEPA requires. NEPA only requires 20 the ER to provide sufficient information so that the 21 Commission can take a hard look at the environmental 22 impacts of no action compared with the proposed 23 action.
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219 1 looked at DSM and all of these impacts are 2 incorporated in the no action alternative and 3 therefore it's sufficient under NEPA.
4 JUDGE KASTENBERG: Just one last question.
5 Suppose Exelon management came to the conclusion that 6 for various reasons, economic, regulatory, other 7 reasons, they wanted to shut the plant down. They 8 decided not to go ahead with the license. Do you 9 think that this review of no action quote unquote 10 would be the same in that case in terms of their 11 planning? I think that's what NRDC is asking is to 12 put on the other hat and say what would we actually 13 do? What's the most likely thing we as plant 14 management would do once we've decided we're not 15 seeking license extension?
16 MS. LEACH: We do believe that we've 17 presented the possible impacts of denial of the 18 license renewal which would ultimately result in the 19 plant shutting down in 2024. Unit 1 will shut down in 20 2024 and then 2029 would be Unit 2. We don't -- we 21 are not energy planners and we're not required under 22 NEPA to consider the need for power.
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220 1 to 17 years in looking at emerging technologies and 2 looking at the power market as it stands now and we 3 believe that the analysis is reasonable under NEPA.
4 And also Exelon is a merchant generator -- we generate 5 electricity and sell it into the wholesale market.
6 We're not energy planners, merchant generator.
7 MR. ROISMAN: That says a lot.
8 JUDGE KASTENBERG: Hm?
9 MR. ROISMAN: That tells you a lot right 10 there. This regulation tells them that they have to 11 think like energy planners. And if their excuse is 12 well, we don't do that, it only confirms what we're 13 saying. This ER is deficient. If they weren't 14 agronomists and they were looking at farm issues, 15 they'd go out and hire an agronomist. If they were 16 looking at radiation effects issues and they're not 17 radiation specialists, they'd go and get a nuclear 18 physicist. So if they have to look at the likely 19 consequences of shutting this plant down and I would 20 say the ER approves, even if counsel hadn't conceded 21 that they're not energy planners, then they go to an 22 energy planner.
23 There's an independent system operator 24 down here. There's an energy plan for PJM. This 25 thing doesn't just manufacture itself. That's what NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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221 1 we're asking for. That's what's missing. That's the 2 dispute between us and them.
3 CHAIRMAN FROEHLICH: And the basis for 4 that is you believe such an analysis is required under 5 our regulations or under NEPA?
6 MR. ROISMAN: Yes, the likely consequences 7 analysis it requires, yes.
8 CHAIRMAN FROEHLICH: What I'd like to do 9 is take just a ten-minute break. We've finished up 10 with all the questions that we have come with for the 11 four contentions and after our break, I'd like to 12 address the motion to strike and the answer. Take ten 13 minutes.
14 (Whereupon, the above-entitled matter went 15 off the record at 3:17 p.m., and resumed at 3:30 p.m.)
16 CHAIRMAN FROEHLICH: Please be seated.
17 The applicant and the staff contend that a reply can't 18 raise new arguments, new contention bases, or new 19 issues. And I'm asking of the staff and applicant, 20 are you arguing that the NRDC has raised a new 21 contention? Is there a new contention that showed up 22 in the reply that you didn't see or had no notice of 23 in the original contention? Does it rise to that 24 degree of over reaching or misuse of a reply?
25 Staff?
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222 1 MS. WOODALL: Thank you, Your Honor. The 2 staff heavily considered whether to file this Motion 3 to Strike when it received the reply. And based on 4 the information presented in the NRDC's petition and 5 in addition to the declaration of Mr. Paine provided 6 in support of Contention 4, the staff believes that 7 the 11 points that it put forth in its Motion to 8 Strike for new issues, new factual bases, that 9 completely change the character of the contention and 10 that we were not provided an opportunity to reply to 11 or set forth essentially could be viewed as 12 constituting an entirely new contention based on the 13 four passing references to possibility and then end of 14 reply it receives substantive factual bases for 15 challenging the CSP analysis, for example, battery 16 storage which absolutely never appeared in any form or 17 fashion in the petition or in the declaration. And 18 that all these factual bases were also not supported 19 by any expert support and mostly did not reference 20 even back to Mr. Paine, much less any other factual 21 support.
22 So whether I actually think it's a new 23 contention or not, I'm not sure, but these are all 24 completely new factual bases.
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223 1 staff's objection is that we have at the reply stage 2 new bases that change the character of the initial 3 contention as you read it and understood it.
4 MS. WOODALL: I actually do think it could 5 rise to the level of a new contention because it's 6 much more than what the initial contention alleged.
7 And some of these are not even linked to what the 8 initial contention was. And to the extent that that 9 is true, then it is a new contention. For example, 10 battery storage.
11 CHAIRMAN FROEHLICH: How about a quick
.12 list of those things that aren't even linked to the 13 initial contention?
14 MS. WOODALL: I would have to -- battery 15 storage plan, the refit work, and number 11 to start 16 with.
17 CHAIRMAN FROEHLICH: Okay.
18 MS. WOODALL: Is not linked. That's 19 impossible because there was nothing there. The fact 20 that we're challenging hypotheticals, whether these 21 are hypothetical or rather they're impractical, 22 uneconomic. None of that was referred to in the 23 initial petition. That was not part of the challenge 24 as to whether what the applicant put forth in the ER, 25 whether any of those things -- the initial petition NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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224 1 nor the declaration, neither of them challenge whether 2 what the applicant put forth was actually unreasonable 3 or uneconomic. They simply said that more things 4 needed to be included.
5 So any of these challenges, as put forth 6 in ten, those were not included in either the petition 7 or the declaration.
8 I have to go through this slowly --
9 CHAIRMAN FROEHLICH: That's okay. I want 10 to focus on that. And then I'm going to ask the 11 petitioner if there was something in the reply that 12 justifies or is a grounds for them to add these new 13 surprising new bases. So that's where we're going 14 with this.
15 MS. WOODALL: Okay, my point, too, is that 16 the staff -- to the extent that the petitioner's reply 17 to our Motion to Strike said that the staff cited the 18 GEIS and that petitioner can respond to that. That is 19 true. The staff extensively cited the GEIS. It's 20 also called the document. It also referred to the ER.
21 The difference and the point that I want 22 to make is that when we cite the standards of the 23 GEIS, it's a guidance, but it's what we use to guide 24 us and how we're going to evaluate it. We pointed out 25 that what the petition put forth was inadequate to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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225 1 show a material dispute with no standards. But what 2 the petitioner cannot -- the petitioner can say that 3 we put forth in the petition is adequate to meet those 4 standards. That's an acceptable response to our 5 answer. But what the petitioner cannot do is add 6 support to make those things adequate when they were 7 not initially adequate.
8 And what we're arguing is that's what the 9 petition is doing. That is, it's adding factual bases 10 to the staff and the applicant pointing out that what 11 you initially pled was inadequate.
12 CHAIRMAN FROEHLICH: Understood.
13 MS. WOODALL: And as to nine, the NRDC 14 notes that they're technically feasible, commercially 15 viable and reasonable for the region. There was no 16 indication in either the petition or the declaration 17 that there was any of the four things that they put 18 forth were technically feasible, commercially viable.
19 They said that they noted that before which they have 20 not noted that before. So we raised that in nine.
21 Then eight, the NRDC says that they 22 challenge essentially the DSM energy savings 23 scenarios, but before all they said is the applicant 24 needs to analyze all forms of DSM. They did not 25 substantively challenge the DSM analysis provided at NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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226 1 7.2 of the ER and here for the first time they're 2 providing a substantive challenge to that adequacy.
3 That's different than alleging all forms of DSM should 4 be analyzed nor did they put forth what those all 5 forms should be.
6 And seven, NRDC alleges that they have 7 various combinations that could plausibly evolve.
8 This claim was never put forth because the 9 combinations of resources was never previously 10 challenged. So they said that you should put forth, 11 you should analyze renewable. You should analyze 12 combined heat and power. You should analyze all forms 13 of DSM, but they never challenged the application 14 alternatives nor that they were unreasonable. That's 15 a first time challenge.
16 And six we're seeing new factual 17 information challenging technical feasibility and 18 commercial viability of the solar plan. That was 19 never challenged before. The four things that they've 20 requested to be put into the application, those things 21 -- this is now a substantive challenge and providing 22 practical information that is unsupported, I might 23 by anyone as to whether this is technically feasible 24 or commercially viable.
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227 1 CSP challenge to the infusibility. We also did not 2 see any challenge to the substantive analysis of CSP 3 or anything else of that nature in the ER. Also, 4 whether anyone would propose the CSP. That was not 5 put forth for the PJM, whether that was a reason that 6 that was insufficient.
7 Number four, the PV generation challenge 8 that the analysis is a sham. This highly implausible 9 rendition. Once again, this is a substantive 10 challenge to the analysis in the application. It did 11 not appear before. This is different than the four 12 claims put forth by Mr. Paine in his declaration of 13 things that should be added.
14 And three, we're also looking at new 15 challenges to the reasonable alternatives in the ER, 16 basically that they're unreasonable and that another 17 substantive challenge essentially.
18 And two, the NRDC reply contained three 19 brand new issues pointing out substantive challenges 20 for why the no action alternative is wrong.
21 Basically, three is about why these issues are 22 basically unreasonable but none of these three factors 23 were provided in the petitioner's reply and I think 24 you'll not find any cross reference to Mr. Paine or 25 anyone else for that.
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228 1 And also number one, as I go backwards, I 2 apologize --
3 CHAIRMAN FROEHLICH: It's okay.
4 MS. WOODALL: Is that they are basically 5 adding support to the idea that before we identified 6 the decision was inadequate because they did not 7 provide support for any of these possibilities being 8 a viable alternative, and so now they're backing --
9 they're trying to add support for that, pointing out 10 the inadequacy,.
11 The entire point of this reply, as I 12 iterated before, the entire point of us filing the 13 Motion to Strike which we did not take lightly, was to 14 point out that these are entirely new bases, that we 15 did not have an opportunity to reply to and that we 16 could not consider as part of Contention 4 in our 17 reply because this is all new and substantive 18 challenges to the application and very different than 19 what was presented in Contention 4E.
20 CHAIRMAN FROEHLICH: Okay, Mr. Roisman, 21 the Palisades decision says that the parties must 22 focus narrowly on the argument first presented in the 23 original petition or raised in answers to it. The 24 staff has just gone through those items, those issues 25 which it says it saw for the first time in your reply.
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229 1 Would you care to go back and now tie in 2 for me each of these elements to the initial 3 contention or the declaration of Mr. Paine that 4 accompanied your petition?
5 MR. ROISMAN: Yes.
6 CHAIRMAN FROEHLICH: Thank you.
7 MR. ROISMAN: I think in a reduced time 8 line we've really done this in the attachment to our 9 opposition to the Motion to Strike. That's Attachment 10 1 to the Motion to Strike.
11 CHAIRMAN FROEHLICH: I have that.
12 MR. ROISMAN: I'm not going to prolong the 13 discussion by reading all the sections of it, but let 14 me put it into context.
15 As we explained when we were discussing a 16 few moments ago what the essence of the contentions, 17 our contention was one of omission. You didn't look 18 at likely consequences. You didn't think about 13 to 19 18 years out in the future. And you compared the 20 viability of alternatives against their capacity to 21 generate as much electricity as Limerick generates.
22 Those were three failings.
23 In the responses, both from the applicant 24 and from the staff, we were cited portions of the ER.
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230 1 didn't have the duty to go through them. There are 2 huge sections of the ER that don't even address 3 alternatives and we didn't have any duty to point out 4 all the sections that didn't address what we said and 5 proper answer from them that would not entitled us to 6 say anything more would have been an answer that said 7 you have not adequately demonstrated that we failed to 8 do what you say we failed to do. That's not what they 9 did.
10 They went through and they discussed why, 11 in effect, our disagreement with what they did was 12 wrong. We came back and said your disagreement with 13 what we did is a basis for hearing. It's a dispute 14 and here's the basis for the dispute. You said that 15 when you talk about DSM and the alternatives analysis 16 without ever mentioning it in the no action 17 alternative, that you have addressed it. Well, what 18 should we do? If they just said that we would have 19 ended it. But they went on and talked about all the 20 things they said about DSM, to try to explain why the 21 way they discussed it in the alternatives analysis was 22 adequate to fulfill their obligation to discuss it 23 under the no action alternative.
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231 1 they set out, and let's just go on the basis of what 2 we filed in our petition and the narrow answers that 3 they give. The rule is not that we have to stick to 4 narrow petitions and they get to have broad answers 5 and we do not get to have broad replies. That's not 6 the rule.
7 CHAIRMAN FROEHLICH: I'm not suggesting 8 that it is. I'm merely suggesting that if you are 9 going to have the broad reply, that you have to tie 10 that to something that was opened up in the answer.
11 MR. ROISMAN: Right, and so if you go to 12 the table -- well, let's take the references to the 13 GEIS. First of all, this is on page 23 of our 14 combined reply to the Motion to Strike.
15 CHAIRMAN FROEHLICH: Page 23, okay. Are 16 the pages numbered?
17 MR. ROISMAN: Probably not. It's the 18 third page from the end. It's a total of 25 pages.
19 It's when you're in the chart format.
20 CHAIRMAN FROEHLICH: I'm in the chart.
21 MR. ROISMAN: It's the one -- the item on 22 the left location, new information and NRC's combined 23 replies to Contention 4E.
24 CHAIRMAN FROEHLICH: 4E, okay.
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232 1 you. There are three pages that start with that.
2 Could you be more specific, please?
3 MR. ROISMAN: Okay, just a second. It's 4 the first one.
5 CHAIRMAN FROEHLICH: Okay, the first of 6 the 4Es.
7 MR. ROISMAN: Of the 4Es. So the charge 8 is well, we shouldn't have been able to reference any 9 specific sections of the GEIS. Now the first thing 10 that we said was well, we did reference the GEIS. We 11 did it on page seven in Mr. Paine's declaration and he 12 lists it as a reference. So it's not as though the 13 GEIS was unheard of.
14 The second thing we pointed out was that 15 the Exelon answer referred to Section 8.2 of the GEIS 16 and quoted some language that it believed that the 17 Board in the Indian Point case had looked at in the 18 context of the no action alternative. And the staff 19 quoted extensively from the GEIS. I think it's fair 20 for us to point out all the things that the staff 21 failed to quote from what they were trying to draw out 22 of the GEIS in support of the arguments that they were 23 making. And that's what we did.
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233 1 with the --
2 MR. ROISMAN: View of the rationale.
3 CHAIRMAN FROEHLICH: The rationale.
4 MR. ROISMAN: And the last two columns, 5 columns four and five describe where either in the 6 applicant's answer or the staff's answer, or both 7 depending on the case, of something that was said that 8 required us to reply or authorized to reply. In a few 9 instances, but not related to Contention 4, we didn't 10 have to look at their answer because we had explicitly 11 raised the issue in our petition to intervene. But 12 those relate to Contentions 1 and 3. And we're 13 talking about 4 here.
14 CHAIRMAN FROEHLICH: Now I would ask the 15 staff and the applicant, did you mention a case or a 16 particular regulation in your answer, does that 17 provide an avenue for petitioner to cite to us 18 contrary case holdings or other regulations?
19 MS. WOODALL: Yes. What I alluded to 20 before, the staff extensively cited the GEIS and I 21 also want to point out that in some places that the 22 table in this reply conflates the staff's Motion to 23 Strike the applicant's Motion to Strike.
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234 1 specifically, we did not challenge the GEIS, the 2 portions that I just went through with you. We did 3 not challenge and very implicitly did not lay out 4 anything that said you cannot cite the GEIS. You 5 didn't challenge any of this in the reply. You cited 6 them. And it's absolutely appropriate. They're a 7 logical outgrowth of the answer. What the staff says 8 is inappropriate is the new substantive challenges, 9 new bases, and new reasons that did not appear in the 10 initial petition.
11 And so I just do want to make clear that 12 there is some distinction and it's not entirely clear 13 in this reply. But we did try to make it clear 14 there's the distinction that I want to make sure that 15 is not missed going back and forth with this.
16 CHAIRMAN FROEHLICH: Okay.
17 MR. ROISMAN: Do you want me to go on?
18 That was just the first sort of major tack.
19 CHAIRMAN FROEHLICH: Okay.
20 MR. ROISMAN: The second one was the 21 discussion of combinations of alternatives.
22 CHAIRMAN FROEHLICH: Right.
23 MR. ROISMAN: And we point out this is on 24 the very next page. We point out in the middle column 25 that it's really semantic. Mr. Paine referred to it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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235 1 as an informed projection of the likely portfolio PGM 2 electricity system resources available in the region 3 served by.
4 Now is that the functional equivalent of 5 saying you need to look at the combination? I think 6 it does. And there's no difference between referring 7 to the portfolio system resources and the combination 8 of alternatives given that we're not really talking 9 about alternatives, we're talking about consequences.
10 We're not talking about alternatives. We're talking 11 about consequences.
12 But in its answer, Exelon, the next 13 column, in its answer Exelon evaluated the -- it says 14 that it evaluated the environmental impacts of 15 combination of generation sources including 16 combinations of new energy sources as reasonable 17 alternatives by 2024. So now they are asserting 18 contrary to our contention that they really have 19 looked at this issue substantively. I think we're 20 entitled to substantively say no. We say you didn't 21 do it. We think it's obvious on its face that you 22 didn't do it. You think you've got an argument that 23 says you did do it, okay, we'll respond to that 24 argument.
25 With that, we're already into the merits.
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236 1 We're not talking about whether we have a 2 disagreement. In fact, this motion points out the 3 magnitude of the disagreement that exists on 4 Contention 4 between the applicant, the staff, and 5 NRDC.
6 And then NRC staff, in its answer, says 7 because denial of the license renewal as a power 8 generating capability may lead to a variety of 9 potential outcomes, the GEIS states that the no action 10 alternative should include selection of other electric 11 generating sources to meet energy demands of 12 conservation. And it goes on from there. So they 13 seem to be using the GEIS to argue that it doesn't 14 matter what the combination is.
15 As long as there's more than one that it's 16 put together, that's enough. We had said no, that's 17 not enough. You need to look at a likely portfolio of 18 what is available in the PGM system within the 19 relevant time frame.
20 So again, they wanted to argue about the 21 merits. We responded about the merits.
22 The next piece of this that is challenged deals still 23 on that same page.
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237 1 go back and recreate each of these responses. Is 2 there any way we could do sort of tit for tat for each 3 of these so we don't lose the thread?
4 CHAIRMAN FROEHLICH: I was going to go 5 through yours separately, but I don't mind if you 6 respond now on this item. And we'll keep it all in 7 the same place in the transcript.
8 MR. POLONSKY: Okay, thank you. On this 9 particular issue, Exelon was pointing out that this 10 was a contention of omission. It was alleged as a 11 contention of omission and even in the reply they've 12 asserted very strongly that it's a contention of 13 omission. On page 50, they say however, on page 28 --
14 in the 28 pages of briefing, Exelon and the NRC staff 15 failed to refute any part of the essential argument 16 advanced by NRCC which is simply and clearly stated as 17 a contention of omission with respect to the no action 18 alternative.
19 So when we saw this originally in the 20 petition we said well, that's incorrect. Because a 21 contention of omission is not admissible if the 22 information that is alleged to be missing is in the 23 ER. So we responded that this information is here and 24 that there are these combinations and why do we 25 address combinations because the Paine declaration NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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238 1 says renewable energy, vaguely refers to renewable 2 energy sources. So we provided combinations of 3 renewable energy resources in the ER.
4 And we're simply pointing out that those 5 combinations are there. I don't see how that opens 6 the door then to all of this other discussion that 7 wasn't properly pled and was vague and unsupported in 8 the petition to intervene.
9 CHAIRMAN FROEHLICH: Mr. Roisman?
10 MR. ROISMAN: Yes, the word that keeps 11 getting missed because it doesn't appear in the ER is 12 the word "likely." Yes, they had some combination of 13 resources there that in our judgment were completely 14 fanciful. What we were criticizing them for, what the 15 contention criticizes them for is not providing an 16 analysis that shows therefore omitting an analysis 17 that the combinations that they are relying on are 18 likely.
19 So they come back in their reply and they 20 say we did know to do that. Here it is, here it is, 21 here it is. And then that calls for us to then 22 respond to say you didn't demonstrate that any of 23 those are likely and here's why they're not likely.
24 But we start with the fact that they never tried to 25 show that they're likely. They just show that they're NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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239 1 out there. And that's not enough.
2 So again, if you want to take out of their 3 answer the allegation that they do show a combination 4 of alternatives, we'll take out of our reply that 5 you've not shown that they're likely because we're 6 willing to stand on our initial argument that what's 7 missing in the ER and what's still missing in the 8 answer is any analysis that something was a likely 9 combination. That's the crux of the contention.
10 That's why we're not changing the contention or the 11 basis. We're still talking about the same contentions 12 and the bases.
13 CHAIRMAN FROEHLICH: Mr. Polonsky.
14 MR. POLONSKY: We'd be happy with that 15 settlement if the original contention is limited as 16 such as pled.
17 CHAIRMAN FROEHLICH: Okay.
18 MR. POLONSKY: In the petition to 19 intervene.
20 CHAIRMAN FROEHLICH: Do you want to 21 address the next item, please?
22 MR. ROISMAN: Yes, okay. The next one 23 talks about -- bear with me.
24 (Pause.)
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240 1 on the likely argument. In other words, the 2 contention starts by saying you've not demonstrated in 3 the ER what are the likely scenarios and they've come 4 back again this time in their argument in opposition, 5 attempting to say that they did look at the likely 6 alternatives, but we specifically identified what 7 they've violated, which sections of the CQ regulations 8 they violated in 10 CFR Part 51 they violated.
9 And we pointed out on page four of the 10 Paine declaration the ER's analysis of the no action 11 alternative fails to consider the environmental 12 impacts of the reasonably foreseeable portfolio PGM 13 system resources and thus fails to make the required 14' comparison between the environmental impacts and no 15 action and the continued operation of LGS for an 16 additional 20 years. So we're sort of back again to 17 the same point.
18 Don't misunderstand me. I'm not saying 19 that the applicant doesn't have an argument. They do.
20 That's why we're going to have a hearing, we hope, to 21 resolve this disagreement. But for the moment, we 22 have an ER that doesn't defend or justify the choices 23 that were made of the alternatives that -- or of the
- 24. consequences that would flow from the no action 25 alternative.
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241 1 And as I suggested back when we were 2 talking about Contention 4, the problem was that when 3 the applicant transferred their alternatives analysis 4 in Section 7 which does not require looking at a 5 likely question specifically, over to the no action 6 alternative, they neglected to include an analysis of 7 the likely consequences. Their counsel has told us 8 why, because this utility is not an energy planner.
9 Okay, I can understand why they didn't do it, but that 10 doesn't mean that they're allowed to not have it in 11 there. It just means that they needed to get a 12 consultant. They didn't. So that's what we pointed 13 out.
14 So every time they came back and tried to 15 say we did it, we had to respond on the merits, but 16 our basis contention is still the same, you didn't 17 ever do it in the first instance. And therefore, we 18 have a valid contention.
19 MR. POLONSKY: Paragraph four of the 20 declaration of Mr. Paine says that the ER is deficient 21 and says specifically it unreasonably misapplies NRC 22 guidance from the 1996 GEIS. It limits the set of 23 reasonable alternatives for meeting the defined 24 generating requirement to analysis of single and 25 discrete electric generating storage and sources.
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242 1 That's the allegation of the deficiency and this 2 argument.
3 And I think we're talking about the one 4 about hypothetical scenarios and whether or not what 5 we did looking out to 2024 was adequate, was nowhere 6 to be found is our position in the petition to 7 intervene and only was somehow articulated as a basis 8 in the reply.
9 Again, it was a contention of omission and 10 it never said you didn't look at hypotheticals if you 11 focused on single discrete resources. And we pointed 12 out that we did not.
13 CHAIRMAN FROEHLICH: I understand. Mr.
14 Roisman, back to you.
15 MR. ROISMAN: Well, this particular 16 response to that response.
17 CHAIRMAN FROEHLICH: Oh, okay.
18 MR. ROISMAN: I think we ought to have a 19 racquet in our hands since this is the way we're doing 20 this.
21 CHAIRMAN FROEHLICH: That's how it is 22 often done when you're ruling on Motions to Strike.
23 MR. ROISMAN: Right. Petition intervene, 24 the initial petition on page 24, the last paragraph of 25 the bases for Contention 4E says the ER violates NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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243 1 51.53(c) by failing to thoroughly consider the 2 environmental impact and likely consequences under the 3 no action alternative of denying relicensing now 13 4 years before the existing license for Limerick 1 will 5 expire, and 18 years before the existing license for 6 Limerick 2 will expire, including expected growth in 7 demand-side management and renewal energy resources 8 and fails to quantify and balance the environmental 9 costs of those consequences against the environmental 10 cost of relicensing the Limerick reactors including 11 the properly analyzed cost of a severe accident.
12 So the basis is there. The applicant 13 disagrees with the basis and then goes on to say and 14 here's the substantive information that's contained in 15 the ER that we think disagrees with it. So we point 16 out to you then after they challenge that they have 17 put in a discussion of the likely consequences for the 18 13 to 18 year lead time, if you will, we put in our 19 response to that. It's just a continuation of the 20 basis that we made in a response to their challenge to 21 what we said.
22 CHAIRMAN FROEHLICH: Counselor.
23 MR. POLONSKY: The contention 24 admissibility criteria which I hope we won't argue 25 over is in 2.309(f) (1) and even before you get to the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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244 1 little Roman numerals you are told that you need to 2 set forth whatever it is that follows with 3 particularity.
4 And then when you get down to Roman 5 numeral V, to provide a concise statement of the 6 alleged fact or expert opinions, you're told you need 7 to do this -- it's on which the petitioner intends to 8 rely adhering together with references to the specific 9 sources and documents on which the request or 10 petitioner intends to rely to support its position on 11 the issue.
12 We don't think this requirement was met 13 here simply by saying likely consequences, and that 14 the Paine declaration is sufficiently vague and 15 unsupported and that it does not support an admissible 16 contention. So to raise these issues now is to -- Mr.
17 Roisman would say it's supporting evidence. We would 18 say it clarifies the contention beyond what the 19 contention was stated in the petition to intervene 20 making it a new contention subpart or a new contention 21 in its entirety and in addition to factual issues, 22 they have done the same with legal citations which 23 each arguably could be their own contention.
24 CHAIRMAN FROEHLICH: Safe to move on?
25 MR. ROISMAN: Yes, I would just remind the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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245 1 Board that in Mr. Paine's declaration he goes to great 2 pains, no pun intended, to identify the paragraphs of 3 the ER and quote from them with which we disagree. So 4 I think we did the particularity thing just fine.
5 So then we have at the top of the next 6 page that begins with Contention 4E --
7 CHAIRMAN FROEHLICH: And is that the last 8 page of 4E?
9 MR. ROISMAN: Yes.
10 CHAIRMAN FROEHLICH: Okay.
11 MR. ROISMAN: A challenge to the whole 12 idea of the decentralized power sources as opposed to 13 central generating facility power sources and the 14 applicant objects that these are all things that we 15 didn't talk about in the original petition.
16 First of all, we recognized and 17 acknowledged that the ER contained an analysis of 18 discrete replacement sources for Limerick, but does so 19 without providing an analysis that demonstrates those 20 resources of combinations are reasonably likely, 21 talked about that. At page three of his declaration, 22 Mr. Paine says "unlike the applicant's section of 23 individual utility-scale power plant alternatives."
24 Keep in mind that's another one of the fundamental 25 bases of the contention that they look at the no NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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246 1 action alternative in terms of utility, scale, power 2 plant alternatives, that it subjectively deems 3 reasonable and appropriate to its own business purpose 4 of generating and selling electricity to replace LGS.
5 They say that in the ER. They say explicitly that's 6 what they're looking at and they say it in the no 7 action and they say it in the alternative analysis.
8 We say that's wrong.
9 The GEIS says you're not to do that.
10 Common sense says you should not do that. NEPA says 11 you cannot do that and we said that is a mistaken way 12 of looking at the issue.
13 So when they start to join issue with us 14 on the merits of that question of whether or not all 15 the individual sources were the proper combinations 16 and whether they looked at the things that we thought 17 they should look at, we answered. We responded to 18 that.
19 Then at page four of his declaration, Mr.
20 Paine says "in addition to the single discrete 21 electricity generation sources reviewed by the 22 applicant as reasonable alternatives to extended 23 operation of Limerick's base load capacity," pointing 24 out there was more you had to look at, not just those.
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247 1 the ER, the failure to demonstrate that the scenarios 2 discussed are reasonable and only consideration of 3 alternatives that will meet Limerick's current 4 generating capacity.
5 So we put the issue in play. We said it's 6 missing. They come back and say it's not missing.
7 What are we to do, but to say to them your 8 interpretation of your own document fails to 9 demonstrate what you claim is wrong with our 10 contention. So we have a dispute. They say it's in.
11 We say it's not in. When they cite to what they 12 believe supports that, we challenge it.
13 CHAIRMAN FROEHLICH: Mr. Polonsky.
14 MR. POLONSKY: This is at the very heart 15 of how this contention was submitted as a contention 16 of omission. In the very language that Mr. Roisman 17 has just cited, suggests that we did not look at 18 something other than the output from Limerick 19 Generating Station. Well, there's a section on the 20 demand-side management and that section on the demand-21 side management includes a discussion of DSM. Looks 22 at a study from I think New Jersey about human 23 behavior on demand-side management and then makes an 24 environmental impact conclusion about demand-side 25 management and concludes that it's small. That is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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248 1 then cross referenced into the no action alternative.
2 It was certainly reasonable for us in our 3 answer to assume they perhaps had missed the cross 4 reference and didn't realize that it was in the no 5 action alternative because they say it can't be 6 equated with replacing the generating capacity. Well, 7 we didn't entirely replace the generating capacity.
8 We looked at conservation measures, consistent with 9 the GEIS in demand-side management.
10 So our answer is simply saying you have 11 articulated this unambiguously as a contention of 12 omission. Here is where that information is that you 13 have said it's not. To then attack the adequacy of 14 that creates a new contention about the adequacy of 15 that information and converts this contention of 16 omission into something that was not originally pled 17 in the petition to intervene and that is 18 impermissible.
19 CHAIRMAN FROEHLICH: Mr. Roisman?
20 MR. ROISMAN: First of all, as we pointed 21 out before whether by reference or otherwise, the 22 summary table produced in the ER that compares the no 23 action alternative and its consequences does not have 24 a column for DSM. But what are we to do with that?
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249 1 alternative. They want to come back and say well, we 2 talked about it in this other place. We incorporated 3 by reference. We've just been excoriated for not 4 being precise, for not being specific.
5 Can we not at least use the same logic to 6 look at what they have done. If they wanted to say 7 the DSM has a role to play in the no action 8 alternative, it should have been included in the 9 discussion. When they deal with it on the merits 10 which they then raise and say ah, see, we did look at 11 it. We then point out that first they dismiss the DSM 12 because they say it won't replace all the generating 13 capacity which we say that's the wrong test. That's 14 not the test you're supposed to use. And then we 15 point out all of the problems with the way they 16 examine the DSM including the failure to look at what 17 it might look like 13 or 18 years into the future.
18 So we're responding to what they're saying.
19 CHAIRMAN FROEHLICH: The next one, if we 20 could?
21 MR. ROISMAN: And the last one -- okay.
22 This is the one that said we never specifically 23 referenced 51.103 (a) (4) as a legal standard for the 24 analysis of the no action alternative. It's true we 25 didn't use the section, but we used the words. We NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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250 1 used the concept, the ER violates because of 2 unreasonably and arbitrary 51.45(c) and unreasonably 3 and arbitrarily limits its analysis of the no action 4 alternative in a manner that fails "to the fullest 5 extent practicable to quantify the various factors 6 considered and neglects discussion of important 7 qualitative considerations or factors that cannot be 8 quantified." And that was in our petition at page 23 9 and part of Mr. Paine's declaration.
10 If that's not specific enough, if that's 11 how it's out -- take it out, but I tell you that's 12 flyspecking. Anybody who has ever read Part 51 and 13 remember, that section 51.103 applies to the staff.
14 The language that we quote which we took from that 15 without putting that reference in is in the context of 16 51.45(c) which basically says the applicant is 17 supposed to produce an environmental report that will 18 provide the staff with what it needs to write its 19 DSEIS and FSEIS.
20 So I don't think that we've really caught 21 them by surprise. If the Board thinks we have, take 22 reference.
23 CHAIRMAN FROEHLICH: Mr. Polonsky?
24 MR. POLONSKY: We see this as the same as 25 the first issue that is raised that only Exelon raises NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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251 1 which is there's an allegation in a footnote in the 2 petition to intervene that says that the statements of 3 consideration haven't been adjudicated. Well, there's 4 no citation. It's not defined. And then we make our 5 arguments in our answer and they come back and they 6 reply and provide a two-page legal discussion with 7 citations and quotations from various sections of the 8 Administrative Procedure Act telling us where that 9 argument can be found for the very first time in the 10 reply.
11 And again, we think it's just crystal 12 clear that if you are citing to any legal authority in 13 a petition to intervene, the same way you're citing to 14 a document in a petition to intervene, that you need 15 to tell the other parties and the Board what it is 16 you're citing to and provide that citation with 17 specificity. I mean we've had boards where you just 18 cite to the application or cite to a regulatory 19 document and they say this thing is 340 pages long.
20 We're not going to go through -- it's not our 21 obligation to go through and find where that is.
22 It's'not my job to hunt down and find out 23 where the citation is to why the Statements of 24 Consideration were not adjudicated. And so it is 25 perfectly fair game for us to say and it's not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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252 1 flyspecking. It's part of the pleading requirements 2 for admissibility that you provide the legal citations 3 to what you are doing. And that simply wasn't done 4 here and it wasn't done on the first argument and it 5 wasn't done on the second.
6 MR. ROISMAN: Okay, let me -- since that's 7 the first one that goes away for 4, let me just talk 8 about that very briefly. If you read the ER, you will 9 see that the applicant has no pinpoint citation to 10 anything that identifies either the Statement of 11 Considerations in support of the 1996 regulations or 12 the GEIS language that in its answer relied upon as 13 the basis for the statement that the subpart L issue 14 that had been dealt in.
15 What we said in the footnote in the 16 petition to intervene frankly was gratuitous. We 17 didn't even need to have said that because there was 18 nothing using Mr. Polonsky's own standard. There was 19 no guidance. We were -- if you take a look at 20 reference in the ER is to NRC 1996A. That reference 21 is you go back to it simply references the GEIS, all 22 500 or 600 pages of it. So sauce for the goose is 23 sauce for the gander.
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253 1 it's been adjudicated. They came back and said it's 2 been adopted. It's a regulation because the SOC said 3 that it was okay and the GEIS said it was okay, now 4 giving the specific references. That was the first 5 chance that we would have had if we were going to do 6 proper pleading to respond to an assertion that does 7 not appear anywhere in the ER.
8 So we responded by pointing out that you 9 cannot have an adjudication of an issue if there's no 10 notice that you're getting ready to adjudicate it 11 either in a rulemaking or in a more formal proceeding 12 in an adjudicatory context. And of course, that's a 13 major point that we've made about Contentions 1, 2, 14 and 3. And that's all discussed on the first page of 15 this attachment, the very first block of documents 16 there.
17 CHAIRMAN FROEHLICH: Did you want to 18 respond to that last comment, Mr. Polonsky?
19 MR. POLONSKY: Yes, Your Honor.
20 CHAIRMAN FROEHLICH: Just to notify the 21 public.
22 MR. POLONSKY: Mr. Roisman knew full well 23 how Exelon got from the L exception to applying that 24 to Limerick even though Limerick wasn't mentioned.
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254 1 somehow feign that he didn't need to raise that 2 because that is why it was relied upon in the ER to us 3 is just incredible and to any extent if he wanted to 4 raise that as an issue when he specifically cited to 5 it in his footnote, the issue that we had was the term 6 adjudicated.
7 We're in a licensing board proceeding.
8 We're scratching ourhead trying to figure out what it 9 is that he needs. And we don't say it wasn't 10 adjudicated. We basically say there's no requirement 11 that it be adjudicated. What is he talking about and 12 we point to 2.309(f) (1) and say that's vague and 13 unsupported. And he comes back and says oh, let me 14 provide the support. That to us is ripe for a Motion 15 to Strike.
16 CHAIRMAN FROEHLICH: Okay. Any questions?
17 Okay. All right. It has been a long day. I think 18 that's all the questions at least I have on the Motion 19 to Strike.
20 We will take the charts and the individual 21 elements, go through them one by one, if need be, in 22 our decision.
23 At this point I think we can move to a 24 closing argument where you're free to address the 25 contention admissibility issues as well as the Motion NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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255 1 to Strike if you wish to. And if you could limit 2 yourselves to five minutes each we may get out of here 3 today.
4 We'll start with the applicant.
5 MR. POLONSKY: Thank you, Your Honor.
6 Exelon ZER for the Limerick Station does not include 7 a new SAMA analysis because the Commission has excused 8 Exelon from including one. The language in Section L 9 specifies this outcome. And if there's any question 10 that that regulation applies to Limerick, the Board 11 need only look to the June 1996 Statements of 12 Consideration which unambiguously answer that 13 question.
14 So we know that Exelon need not submit a 15 second SAMA analysis. This disposes of Contention 3 16 which alleges to the contrary. But it also disposes 17 of Contention 2. Just before the lunch break, Mr.
18 Roisman characterized Contention 2 as follows: that 19 NEPA obligates Exelon and ultimately the NRC staff to 20 perform an adequate SAMA analysis regardless of what 21 Section L says. This is nothing more than a 22 camouflaged attack on the text of Section L which does 23 not require Exelon to submit a second SAMA analysis as 24 part of license renewal.
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256 1 construction would tell you that a general rule is 2 trumped by a specific rule. The general rules 3 regarding the Commission's NEPA obligations that the 4 NRDC cites do not trump the specific regulation that 5 excepts Exelon from submitting a second SAMA analysis 6 as part of license renewal.
7 As for Contention 1, yes, there is 8 consideration of new and significant information 9 required by 51.53(c) (3) (4). And Exelon included a 10 discussion of new and significant information in the 11 Limerick ER. However, the adequacy of that 12 information cannot be litigated in this proceeding 13 because either SAMAs for Limerick are a Contention 1 14 issue or alternatively SAMAs for Limerick, Comanche 15 Peak and Watts Bar and any other plant that may in the 16 future perform a SAMA analysis at the construction and 17 operating phase are a generic finding that is accepted 18 by rule. As such, the Pilgrim and Vermont Yankee 19 decisions are binding.
20 In any event, Exelon's consideration of 21 new and significant information is consistent with 22 NEPA's rule of reason. NEPA requirements tell you to 23 evaluate environmental impacts. That's in NEPA 24 Section 102. If the impacts are significant, then 25 NEPA requires you to evaluate mitigation alternatives.
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257 1 New and significant information looks for new 2 information that could result in a seriously different 3 picture of the environmental impacts from what was 4 previously envisioned.
5 In this case, the impacts were 6 consequences of severe accidents are defined as small.
7 Therefore, only that information that would change the 8 consequences to moderate or large, the other 9 definitions are provided in the rules, would be new 10 and significant. NRDC doesn't like the 1989 SAMDA.
11 Well, it's too late, 20 plus years too late to 12 challenge that analysis. And the chaos in license 13 renewal proceedings and prior NEPA documents from the 14 construction and operating stage to be litigated in 15 this proceeding would be significant. And the Board 16 should not allow it.
17 NRDC also does not like the exception in 18 NRC regulations in 51.53(c) (3) (2) (L) or the 19 regulations in 51.95 or 51.71 that flow the NRC 20 staff's requirements down into that exception. It can 21 bring its grievance in a waiver under 2.335 or through 22 a petition for rulemaking. But what it cannot do 23 absent a waiver is bring that challenge here in this 24 license renewal proceeding.
25 As for Contention 4, it appears that the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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258 1 NRDC is challenging the need for power after all.
2 They've argued today that under the no action 3 alternative, there is no need for the power from 4 Limerick. Thus, the no action alternative can look at 5 something other than replacing 2,340 megawatts the 6 Limerick station will provide. That is a veiled 7 challenge of the need for power. That's outside the 8 scope of this proceeding.
9 NRDC has a number of concerns about how 10 the no action alternative will be defined and handled 11 by the NRC. This is best handled as a policy concern 12 and comments, for example, on the draft revision to 13 the GEIS or through a petition for rulemaking. NRDC's 14 concern is apparently also with the staff's Standard 15 Review Plan in NUREG 1555 and how it applies to all 16 plants. This licensing proceeding is not the place to 17 litigate NRDC's policy concern applicable to all 18 plants.
19 NRDC does not specify the combinations of 20 alternatives that would make the ER adequate. Rather, 21 they rely on a single sentence talking vaguely about 22 "waste heat co-generation, combined heat and power, 23 and distributed renewable energy resources" as if we 24 know what that meant. Would 10 percent waste heat, 70 25 percent combined heat and 20 percent distributed NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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259 1 renewable energy be adequate? Or how about 20, 50, 30 2 percent or 33 percent for each?
3 The combinations are innumerable. And how 4 much solar panels on rooftops should we incorporate or 5 windmills in farmers' backyards? It's a nice academic 6 exercise and more appropriately it's speculation.
7 NEPA doesn't require either and it also doesn't 8 require worst case scenarios. It requires a rule of 9 reason which Exelon met. And even before you get to 10 NEPA, the admissibility standards require specificity 11 which is not present here.
12 Finally, this is clearly and unambiguously 13 and repeatedly stated as a contention of omission.
14 NRDC's statements today that it is a combination of 15 both is belied by its pleadings. NRDC fails to 16 recognize even today that the ER does contain energy 17 alternatives and combinations of alternatives, solar, 18 wind and natural gas combinations were included in the 19 ER. Wind, compressed air energy storage as a 20 combination were included in the ER, and all of those 21 impacts were flowed through to Table 8-0.
22 To the extent that the conclusion of 23 environmental impacts on demand-side management which 24 were identified in the ER as small were not lifted and 25 carried into a summary table which frankly is merely NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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260 1 a roll up of what is in Section 7 is itself flyspeck.
2 For all of these reasons we urge the Board to deny the 3 petition in its entirety and on behalf of Exelon, we 4 thank you for the opportunity to have this candid 5 discussion with you. Thank you.
6 CHAIRMAN FROEHLICH: Thank you, Mr.
7 Polonsky, for the Commission staff.
8 MR. SMITH: Thank you, Judge Froehlich.
9 Before I get started we do have a couple items of 10 homework I would make in terms of Judge Kastenberg's 11 questions on the 1989 Limerick SAMDA.
12 First, it was not peer reviewed, but the 13 NRC staff reviewed it and also contractors reviewed 14 it, too. We submitted the SAMDA analysis to 15 contractor labs and they looked at it as well. So 16 different sets of eyes did review the 1989 SAMDA 17 beyond just the NRC staff. But it was not a formal 18 peer review.
19 Second, we're not aware of any other SAMDA 20 or SAMA analyses that have been completed beyond the 21 ones we stated earlier at the time of 1996 when the 22 Commission promulgated its license renewal rule. I 23 hope that's responsive.
24 CHAIRMAN FROEHLICH: Thank you.
25 MR. SMITH: Second, the NRC staff noticed NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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261 1 a concern that the 1989 SAMDA analysis by itself 2 doesn't adequately consider severe accident mitigation 3 alternatives at least for this license renewal 4 proceeding conducted over 20 years later. But the NRC 5 staff and since, there could be some kind of a gap or 6 a hole in the Commission's regulations if you read 7 Section L to say what it says it does.
8 The NRC staff's position is that Section 9 L doesn't just rest on the 1989 SAMDA analysis.
10 Rather, a careful reading of the 1996 Statement of 11 Considerations indicates that the Commission was 12 considering not just the prior SAMDA analyses of the 13 facilities in question, but also considered the 14 extensive study of the NRC staff and the applicants in 15 licensing were taking to consider severe accidents and 16 ways to mitigate those risks of severe accidents.
17 In fact, as we point out in our brief, the 18 Commission thought that that analysis was so thorough 19 that it would be unlikely that any more future SAMA 20 analysis would uncover cost beneficial SAMAs beyond 21 the procedural and programmatic changes, for minor 22 plant modifications.
23 In that sense, the Commission reasonably 24 used its discretion in the 1996 rulemaking to not 25 require applicants to consider severe accident NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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262 1 mitigation alternatives beyond the ones reviewed at 2 either the operating license phase or if necessary, 3 the license renewal phase. But unless there would be 4 a thought there was a gap there, that determination 5 like all determinations in 1996 Statement of 6 Considerations, regulations, and GEIS is a subject of 7 NEPA's new and significant information obligation and 8 the NRC staff as well as the applicant has to consider 9 whether or not the new and significant information 10 impact submissions of determination in 1996 SOC 11 codified in the regulations that essentially one SAMA 12 is enough.
13 And turning to Contention 4, the staff's 14 final thoughts on that and since they could be argued 15 that NRDC's petition to intervene is based on a new 16 philosophy or new way of looking at a no action 17 alternative and in that sense, the NRC staff agrees 18 that it might be. The NRDC is asking you to look at 19 no action in a way that we haven't considered 20 previously and nonetheless, if they were to do that, 21 the petitioner would still need to provide adequate 22 basis or factual demonstration for why their way of 23 looking at it was a reasonable way under NEPA.
24 And as the Board held in Monticello 25 license renewal proceeding, a simple allegation of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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263 1 different renewable alternatives should be considered 2 isn't enough to meet the admissibility standards. And 3 in this case, the NRC staff read the Paine declaration 4 as well as the initial petition to intervene, the 5 facts stated in there don't provide any indication for 6 why the things they are saying should be looked at in 7 a no action alternative are commercially viable, 8 technically feasible, more appropriate for 9 consideration otherwise.
10 In any event, if the Board were to 11 consider in the statements we argued about recently in 12 the reply, the NRC staff knows that the Board would 13 consider all of them and even the bases for the 14 contention, none of the statements at least the staff 15 would move to strike are provided by citation to 16 either a technical document or a expert declaration.
17 In that sense, they constitute the types of 18 allegations or speculation the Commission has 19 previously found and cannot support in this 20 contention.
21 For those reasons, the NRC staff opposes 22 the position that NRDC requests. Thank you, Your 23 Honors.
24 CHAIRMAN FROEHLICH: Thank you.. Mr.
25 Roisman?
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264 1 MR. ROISMAN: Thank you, Mr. Chairman.
2 Well, one message is clear. The applicant and staff 3 agree that there's anywhere that we can challenge what 4 we want to challenge, but not here. We can challenge 5 it in 2.335 which we might do should the Board agree 6 with their view of these regulations which we don't 7 agree with. We could do it by rulemaking. We could 8 have done it before anybody thought to apply for 9 license renewal. We could do it before the applicant 10 used it as a basis for its Environmental Report here.
11 Our position is we're in the right place.
12 We're in front of the right Board. This is the right 13 time. And we have the right issues. Let me go over 14 them briefly.
15 We are not claiming that an applicant 16 needs to do a new SAMA analysis. That is not one of 17 our claims. Our claim is that they need to do an 18 adequate analysis of mitigation alternatives, whether 19 it's called a SAMA, a SAMDA, or something else 20 altogether. They say that the 1989 SAMDA is that 21 adequate analysis either because the Commission 22 blessed it without really thinking about or because it 23 is a generic finding or because it is in some way or 24 another represents a good starting point and the staff 25 says then you have to look at the IPE and the IPEE, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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265 1 incidentally, also not offered in evidence in this 2 proceeding, but referenced only.
3 We believe that NEPA requires an adequate 4 consideration of mitigation alternatives in order to 5 answer that question. You have to take a look at the 6 SAMDA, the 1989 SAMDA. How can you tell whether the 7 new information is new or whether the new information 8 -is significant if you don't look at the 1989 SAMDA 9 that the applicant says is considering new and 10 possibly significant information for it. So Hamlet is 11 here. Hamlet is in the play. The applicant keeps 12 taking him offstage every time we try to have a 13 conversation with him, but he's here. We're going to 14 play his play.
15 Secondly, the new and significant 16 information is not a Category 1 issue problem because 17 whatever the 51.53(1) is, it didn't convert a site-18 specific issue to a Category 1 issue. The Commission 19 defined Category 1. It doesn't fit that category.
20 It's also not a generic finding. By definition a 21 generic finding would be a finding that applies to 22 lots of other plants. This they claim is a finding 23 that applies to Limerick. So it can't be a generic 24 finding and they're certainly not trying to assert 25 that they did exactly the same analysis that was done NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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266 1 for Watts Bar and Comanche Peak and therefore we have 2 a three party generic finding. It's site specific.
3 It's specific to this case.
4 It's significant, those new information 5 are significant just because of the consequences of 6 the accident, but also because of the mitigation 7 alternatives that could come into play if we used the 8 new and significant information that NRDC has pointed 9 out in its report. Those consequences are the heart 10 of an evaluation under NEPA under the Commission's own 11 regulations.
12 And Subpart L does not purport to decision 13 the question of whether or not any particular document 14 offered by an applicant is or is not an adequate 15 mitigation alternative analysis. It simply says that 16 if there is one, the applicant is excused from doing 17 a new SAMA analysis. We don't want them to do a new 18 SAMA analysis. We want them to do a mitigation 19 analysis that's adequate. When they give us one, 20 we'll tell you whether we think it's adequate or not, 21 but it doesn't get into this question of a new SAMA 22 analysis.
23 Finally, with regard to Contention 4 we're 24 told that this is a challenge for the need for power.
25 This is a strange contention. On the one hand we have NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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267 1 the applicant asserting that if you don't have these 2 plants running, you will need to meet 2300 megawatts 3 of generating capacity. In my simple world they are 4 asserting that there's a need for the power from the 5 plant. We're not challenging whether there is a need 6 for the power. We're asking them to evaluate what the 7 consequences would be if 13 or 18 years from now you 8 shut it off, you turn off the plant, what happens?
9 They don't give us that analysis. They keep referring 10 to it in summary fashion. We've given you a 11 reasonable analysis. We said it's not a reasonable 12 analysis because it assumes you have to supply all the 13 generating capacity that would be gone which is an 14 assumption which is wrong. And it doesn't look at 15 likely consequences. It just looks at some possible 16 consequences.
17 Are we asking for worst case? Are we 18 asking for the edges of speculation? No. We're 19 asking for some discussion in the ER of why a set of 20 consequences that the' applicant wants to say will 21 occur are likely. That conversation does not occur 22 anywhere in the ER.
23 We are not arguing that specific 24 alternatives should have been considered. We're 25 arguing that the way of looking at whatever NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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268 1 alternatives the applicant wants to look at are wrong.
2 They look at it from a wrong perspective. That's the 3 error. That's the omission in the analysis. When 4 they look at it in the right way, they might expand 5 the alternatives. They might get consequences. They 6 might narrow. I don't know. It's their job to do it 7 right. It's our job to point it out to them.
8 Finally, what we're doing in this petition 9 to intervene is attempting to have our day in court 10 for our members and for our organization to raise with 11 the Board what we think are significant deficiencies 12 in the applicant's Environmental Report. All of these 13 will come back again if the staff decides to simply 14 repeat what the applicant has done. If they change, 15 if they improve, we may tell you we're dropping the 16 contention. They've dealt with our problem. If they 17 address the problem head on, but do it in a wrong way, 18 we may file a new contention based on that. But for 19 now what we have is a deficient Environmental Report.
20 We ask the Board to give us the opportunity to make 21 our case with regard to that. Thank you for the time 22 you've given us today.
23 CHAIRMAN FROEHLICH: On behalf of the 24 entire Board I want to thank all the participants, 25 counsel, for your time and thoughtful arguments. I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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269 1 assure you the arguments will be helpful to the Board 2 in coming up with a decision and as I mentioned in my 3 opening, we'll try to have that decision published 4 within 45 days. I know the rules say 45 days from the 5 reply, but I read them to be 45 days from the end of 6 this oral argument. Again, I want to thank the 7 officers of the Montgomery County Court for their 8 perseverance and for their attendance all day and the 9 parties for their helpful arguments. We stand 10 adjourned. Thank you.
11 (Whereupon, at 4:35 p.m., the oral 12 arguments were concluded.)
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CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission Proceeding: Limerick Generating Station Oral Arguments Docket Number: 50-352-LR and 50-353-LR Location: Norristown, Pennsylvania were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken and thereafter reduced to typewriting under my direction and that said transcript is a true and accurate record of the proceedings.
Official Reporter Neal R. Gross & Co., Inc.
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