ML23093A223
| ML23093A223 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 04/03/2023 |
| From: | Griggs W Citizens for Fair Utility Regulation (CFUR) |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 56690, 50-446-LR, 50-445-LR, NRC-2022-0183 | |
| Download: ML23093A223 (0) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: §
§ DOCKET NOS. 50-445 and VISTRA OPERATIONS COMPANY, LLC § 50-446
§
§ NRC-2022-0183 COMANCHE PEAK NUCLEAR POWER § PLANT, UNITS 1 AND 2 § April 3, 2023 CITIZENS FOR FAIR UTILITY REGULATIONS REPLY IN SUPPORT OF PETITION FOR LEAVE TO INTERVENE AND REQUEST FOR ADJUDICATORY HEARING COMES NOW the Petitioner, Citizens for Fair Utility Regulation (CFUR) on its behalf and on behalf of its members, by and through counsel, and hereby replies to the answers filed by Vistra and the NRC Staff in support of its Amended Petition for Leave to Intervene and Request for Hearing in this matter.
REPLY IN SUPPORT OF CONTENTION 1: The License Renewal Application (LRA)
Lacks Adequate Data and Analysis Regarding Radiological Releases and Emissions and Potential Health Impacts.
CFUR set forth six bases for its first contention1 including that the Application a.) failed to include updated information on the release of tritium and other radionuclides; b.) failed to analyze cumulative radiological impacts and resulting health risks of operating Comanche Peak Nuclear Power Plant Units 1 and 2 (CPNPP) for an additional 20 years; c.) failed to fully analyze the hazards that would result from 20 more years of discharge of water that contains radioactive particulates and tritium into Squaw Creek Reservoir; d.) failed to provide analysis of an 1 CFURs Amended Petition, pp. 11-16.
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additional 20 years of gamma emitters and the cumulative impacts of that on farms, crops, wildlife, and vegetation; d.) failed to analyze the financial consequences of 20 more years of radiological releases and the potential cost of remediation in the future; and e.) failed to provide analysis and omitted necessary information on the potential for pipe leaks that could occur in the future and related radiation release increase that could result in aging nuclear reactors.2 In its initial response to CFURs Contention 1, Vistra claims that CFUR has not identified any legal or regulatory basis for its challenge. However, the first four bases for CFURs initial Contention relate to radiological releases and to their effects on human beings, aquatic and terrestrial organisms. The contention concerns the cumulative effects of these releases and other contributing factors and the failure of the Application to adequately address those concerns. The NRC staff concluded that CFUR met the basis requirement of 10 C.F.R. 2.309 (f)(1)(ii), and so does CFUR. Vistra then claims that CFURs contention regarding the omitted radiological impacts and the Applications failure to address these concerns is meritless because it claims that the missing information is addressed throughout the Application. No specific reference was provided as to where these issues were analyzed in the Application, and CFUR cant find them.
Vistra then criticizes CFURs statement in Contention No. 1 that key data from the more recent CPNPPs 2021 Annual Radiological Environmental Operating Report (AREOR) should have been included in the Application along with data from AREORs for the years 2016 to 2020 which, according to Vistras claim in their response, was included. Data in the 2021 AREOR contains information on the measurement of ambient gamma radiation by Thermal Luminescent 2 CFURs Amended Petition, pp. 11-12.
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dosimetry, and a determination of: a) airborne gross beta, gamma emitters and Iodine-13; b) tritium and gamma emitters in Discharge Pathway surface water: c) gross beta, tritium, Iodine-131 and gamma emitters in potential drinking water sources; d) tritium and gamma emitters in ground water and fish; e) gamma emitters in food products; and f) gamma emitters and Iodine -
131 in broadleaf vegetation.3 As CFURs petition points out, specific information related to the direct (ambient) radiation levels that was observed at the 76 sample locations for monitoring was measured, and the total 2021 annual dose was given. However, such key data points were not included in the Application, and they should have been. This analysis of the potential cumulative health impacts to workers and residents in the surrounding communities is essential to include. CFUR believes that this is a material issue, one that would make a difference in the outcome of the licensing proceeding, and it supports a finding that a genuine dispute exists with the applicant on a material issue of law or fact, contrary to Vistras assertion otherwise.
Finally, Vistra challenges three separate portions of CFURs first contention by arguing about facts that would be litigated at an adjudicative hearing on the merits. Vistra first criticizes CFURs statement in its Contention No. 1 that in the Environmental Report at 3.6.4.2.1 (History of Radioactive Releases) where pipe leaks that led to radiation releases is discussed, there is no analysis of similar pipe leaks or breakage that could occur in the future and related release increase that could result in aging nuclear reactors.4 Vistra complains that CFUR offers no reason that a discussion of events that may occur in the future is necessary to comply with the requirement to describe historical information or that the absence thereof is material to the ERs compliance with 10 C.F.R. Section 51.53(c) (2). Vistra then discusses what it calls a 3 Luminants Comanche Peak Nuclear Power Plant 2021 Annual Radiological Operating Report, pg. 6, and as outlined in CFURs Amended Petition, pp. 12-13.
4 Environmental Report, 3.6.4.2.1, p. 1786.
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separate requirement in 10 C.F.R. to consider projected impacts of inadvertent radiological releases during the license renewal term in a separate part of the ER in Section 4.5.5. Vistra claims that CFUR neither acknowledges nor challenges that analysis. However, the admissibility stage of this case is not the place to assert that claim because facts are still being ascertained.
The same response on CFURs part applies to Vistras attack on CFURs assertion in Contention No. 1 that the Application fails to analyze the financial consequences of 20 more years of radiologic releases and the potential cost of remediation in the future. Vistra claims that CFURs argument is immaterial and does not identify a genuine dispute. However, in each instance, CFUR believes that its first contention is material and shows that a genuine dispute exists with the applicant, and CFUR believes the facts will bear that out.
Vistra is essentially arguing in response to this contention the facts that would be litigated at a hearing. Case law supports this proposition. The Atomic Safety and Licensing Board should not have to address the merits of a contention when determining its admissibility.5 What is required is that the intervenor state the reasons for its concerns.6 The Petitioner need not prove its contention at the admissibility stage.7 The contention rules require only that contentions have at least some minimal factual and legal foundation in support and are not to be a fortress to deny intervention.8 The NRC staff also have some concerns about CFURs Contention No. 1. NRC staff challenge the admissibility of the first four bases for Contention 1 on the grounds that the issues 5 Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), 28 NRC 440, 446 (1988); Sierra Club v. NRC, 862 F.2d 222, 228 (9th Cir. 1988).
6 Public Service Co. of New Hampshire, (Seabrook Station, Units 1 & 2), 16 NRC 1649, 1654 (1982).
7 Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 139 (2004).
8 U.S. Dept. of Energy (High Level Waste Repository), LBP-09-06 (May 11, 2009); See Pacific Gas & Electric Co.
(Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation), CLI-08-1, 67 NRC 1, 8 (2008) (quoting Oconee, CLI-99-11, 49 NRC at 334.
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related to radiological releases and their effects are Category 1 issues that were resolved generically for license renewal in the 2013 GEIS. The staff claim that the Application is not required to contain analyses of the environmental impacts of Category 1 issues at the license renewal stage. Staff additionally claim that contentions which challenge Category 1 determinations fall outside the scope of individual license renewal proceedings, and this category of issues may not be challenged in litigation unless the relevant regulation is waived. However, staff also state that they must address any new and significant information of which it becomes aware that might affect either the generic or the site-specific findings in it draft or final SEIS.9 CFUR has identified and discussed several serious environmental concerns in its first contention that are site-specific to the area around the plant and of great concern to the public in North Texas for the requested 20-year renewal application for CPNPP. While not all of those may rise to the level of affecting the site-specific findings, some of the concerns should certainly be considered and included in its draft and in the final SEIS.
CFUR takes issue with the NRC staffs assertion regarding its second and fourth bases supporting its Contention 1 where staff challenges CFURs use of the word cumulative. Staff claims the word was used in passing, and provides the definition of cumulative as set forth in Federal NEPA analyses and in 40 C.F.R. Section 1508.7 and further claims CFURs use of the word is inconsistent with that definition. This is not correct. CFUR does intend for its meaning to include repeated incremental impacts of other past, present, and reasonably foreseeable future actions. Staff made an assumption in determining these bases to be inadmissible that is not accurate.
9 NRC Answer in this case, p. 12 5
CFUR also challenges NRC staffs opposition to CFURs claim regarding pipe leaks and breakage. Staff acknowledges that CFUR is challenging groundwater impacts discussed in the ER and, therefore, believes CFURs statement of the issue falls within the scope of the proceeding and meets the condition admissibility criteria. Then, however, staff opines that CFUR has not addressed the plant-specific analysis in the ER or demonstrated that the issues raised in the contention are material to the findings the NRC must make on the Application. Staff also thinks that CFUR has not provided a statement of facts that show that a genuine dispute exists with the Applicant. Finally, staff criticizes CFURs reference to an article in Scientific American regarding radioactive hydrogen in drinking water causing cancer. Staff does not see the site-specific implications here or the correlation that tritium levels as high as 3.2 million picocuries per liter have been reported to the NRC at various nuclear facilities. This is a very serious concern that needs to be addressed in the Renewal Application for CPNPP. CFUR strongly disagrees with staffs position on these determinations.
As stated previously, these contentions being challenged by Vistra and the NRC Staff are on the merits and should not be precluded at the admissibility stage.10 What is required for admissibility is that the intervenor state the reasons for its concerns, which it has done.11 The standard for admitting a contention is not meant to be equivalent to the standard of evidence at a trial on the merits; the truth or falsity of the contention is reserved for litigation.12 The contention rules require only that contentions have at least some minimal factual and legal foundation in support, and CFUR argues that Contention 1 meets this initial burden.13 10 See Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), supra.
11 Public Service Co. of New Hampshire, (Seabrook Station, Units 1 and 2), supra.
12 Washington Public Power System (WPPSS Nuclear Project No. 2) ALAB-722, 17 NRC 546, 551 n. 5 (1983).
13 U.S. Dept. of Energy (High Level Waste Repository), supra; See Pacific Gas & Electric Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation), supra.
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REPLY IN SUPPORT OF CONTENTION 2: Seismic Analysis in Inadequate in the LRA; Lack of Complete Data Could Result in Seismic Risks.
CFUR discussed several bases in its second contention14 including that the Application a.) fails to provide an adequate analysis of the magnitude of seismic activity neat the CPNPP and specifically that the Application omits reference to earthquakes of less than 3.0 magnitude; b.)
fails to account for the effects of earthquakes within or near the karst zone adjacent to CPNPP; c.) fails to account for the effect earthquakes could have on cracking of plant piping, structural supports, concrete, and foundations, and d.) fails to consider the effects of seismic activity on the Squaw Creek Reservoir (now called Comanche Creek Reservoir).
Vistra attacks CFURs Contention No. 2 on a variety of fronts. The company asserts that CFUR has made baseless and vague claims that the Application is inadequate and that a seismic event could occur as a result of hydraulic fracturing activities and slippage of lineaments, despite evidence presented to the contrary. Vistra claims that comprehensive seismic analyses supporting CPNPPs safe operation are provided in other documents and are not required to be republished in the Application. Vistra then asserts that it has no obligation to do so after reciting a long explanation of its responsibilities on seismic accountability as it sees them. Thus, the company argues that Contention 2 does not identify an admissible contention. Vistra further asserts that regarding CFURs concern over an earthquake-induced dam failure (which was controlling in the Bureau of Land Managements decision to pull oil and gas extraction leases on nearby Lake Lewisville due to the discovery of significant erosion in three lineaments by the Army Corps of Engineers, discussed in CFURs contention at page 19)15, that Vistra is subject to regulation by the Texas Commission on Environmental Quality (TCEQ) and that inclusion of 14 CFURs amended Petition, pp. 17-22.
15 CFURs amended Petition, p. 19.
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discussion of this concern in its Application is not required. Thus, Vistra concludes, inter alia, that CFURs concerns regarding potential seismic activity near CPNPP is beyond the scope of this proceeding.
NRC staff share similar concerns with CFURs Contention No. 2. Staff also call out CFURs lack of establishing that a requirement for this type of seismic hazard evaluation is required in 10 C.F.R., Part 51 and also suggests that the contention for such inclusion is beyond the scope of this proceeding and is not material to the findings that NRC staff must make to act on the Application.
Whether concerns over Seismicity are beyond the scope of this proceeding due to a separate and distinct process in the Final Generic Environmental Impact Statement for License Renewal of Nuclear Plants (GEIS)(2013), and whether a genuine dispute exists on this contention, is indeed a decision for the Atomic Safety and Licensing Board to contemplate.
However, it is clear that seismic activity in the nearby Barnett Shale Geological Area was found by numerous studies to be directly related to deep injection by oil and gas entities engaged in fracking and injection in the area. This background is detailed in CFURs Contention 2 and in the comprehensive map attachments thereto.16 Those studies and the local Texas media reporting on them have occurred after the current GEIS was finalized and after the 2014 reevaluation performed under current operating licenses as requested by the NRC in response to the 2011 earthquake and tsunami that resulted in the Fukushima accident in Japan. Inclusion of this seismic data is a top concern of local residents directly affected by Vistras License Renewal 16 CFURs Petition, pp. 17-22.
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Application and is fully supported by the declarations submitted by CFUR as attachments to its Amended Petition.
NRC staff also responds to CFURs Contention 2 by referring to CFURs concerns over and listing of CPNPPs structures, systems and components for which the Applicant performed aging management evaluations or developed programs. The criticism is that CFUR does not challenge with specificity how the Applicant carried out this evaluation or developed aging management programs. However, CFUR does not have access to this information. Such company information is in the hands of the Applicant. How could CFUR have been expected to know this information in order to challenge it with the appropriate specificity that staff thinks should have been used? CFUR did not have meaningful access to this material. Courts have found that the burden for contention admissibility may lower where the information allegedly needed for the contention was in the hands of the licensee or NRC staff and was not available to the Petitioner.17 CFUR replies to Vistras and NRC staffs responses by asserting that its Contention 2 is, in fact, within the scope of this proceeding, is material and represents a genuine dispute on a genuine issue with the Applicant. In general, NEPA requires a hard look at environmental consequences.18 The facts and background CFUR has presented in Contention 2 show that Vistra did not take a hard look to determine if this renewal application would have seismic consequences. The company tries to make excuses as to why it does not have this responsibility by begging off on any requirement to do so. It even suggests that state agencies have the 17 See, e.g., York Comm. For the Safe Envt v. NRC, 527 F.2d 812, 815, n. 12 (D.C. Cir. 1975)(where the information necessary to make the relevant assessment is readily accessible and comprehensible to the license applicant and the Commission staff but not to petitioners, placing the burden of going forward on petitioners appears inappropriate.
18 Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87 (1983).
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responsibility to regulate in this area. The same authorities cited for the first two contentions should also apply here.19 CFUR contends that the seismic analysis should have been included in the Application whether specifically required or not. The public demands as much.
REPLY IN SUPPORT OF CONTENTION 3: The LRA fails to fully analyze predicted climate changes that could affect the ability of the Comanche Peak Nuclear Power Plant to have cooling water available at temperatures consistent with operational requirements.
CFUR offers two bases for this Contention No. 3 that a.) Vistras LRA fails to fully analyze increases in ambient water temperatures that could affect the capacity of the Squaw Creek Reservoir (a/k/a Comanche Peak Reservoir) to maintain water temperatures consistent with CPNPPs operational requirements, and b.) the LRA omits discussion of predictions regarding increasing ambient water temperatures in the future, which could cause the nuclear units to decrease power outright or cease operations altogether.
Vistra has issues with this contention for several reasons. The Applicant company calls this contention simply insufficient because it claims CFUR has not specifically cited a section of the LRA that it deems deficient. That is hard to do when your argument is that there has been a lack of discussion or omission of critical information related to recent serious drought and climate change issues. Specifically, Vistra claims that it is not sufficient to ask the Board to guess what section CFUR is referring to. At various points in its response, Vistra calls CFURs claim various names such as ambiguous, vague and meritless in its determination that Contention 3 is beyond the scope of the license renewal proceeding.
NRC staff have similar concerns. Staff acknowledge that Contention 3 has both an environmental and a safety claim implied. Staff determines that CFUR has provided a statement 19 See footnotes 5-8 and 10-13, supra.
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of the issues and the basis therefore and provided a concise statement of facts in support of its position. However, the staff believe the contention is beyond the scope of the proceeding, not material to the findings the NRC must make in the proceeding, and that it has not raised a genuine dispute with the Applicant. Staff cites once again that to the extent that this contention is an environmental concern, it falls into Category 1 (discussed earlier regarding the 2013 GEIS) which staff claims is not subject to site-specific review and is, therefore, beyond the scope of this hearing process. Staff, however, claims that the NRC did in fact consider climate change and its effect on drought in the 2013 GEIS, and that these effects could result in conflicts of water availability.20 Staff also noted that the NRC recognized that such situations as this would then necessitate decisions by local, State and regional water planning officials and that local water use planning is not within the NRCs jurisdiction.21 CFUR replies to these arguments with a unique one of its own. Despite all the obstacles that seem to be built into the system and to the rules which appear to shield the NRC and applicants for license renewals to operate nuclear facilities from addressing legitimate environmental and safety issues, the publics right to adjudicate its concerns in a fair and accessible hearing process should be paramount. CFURs primary concern with putting forward this Contention 3 was that climate conditions have changed recently in Texas and the Southwest.
These climate conditions are changing apparently faster than the NRC adjudication process. As set forth in its Amended Petition,22 the Texas Tribune reported that last summer, in August 2022, that about 62% of the state was in extreme drought and 27% of the state was in exceptional drought. The contention also quotes the State Climatologist saying that drought conditions will 20 2013 GEIS, pp 4-40.
21 Id.
22 CFURs Amended Petition, pp. 22-24.
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only get worse. As discussed in the Amended Petition, some Texas cities are concerned that they may literally run out of water. No doubt, changing climate conditions present a serious threat to the continued operation of CPNPP for an additional 20 years. CFUR appreciates that climate change may have been taken into account in the 2013 GEIS. However, CFUR stands by its arguments in Contention No. 3 that the Application fails to fully analyze predicted climate changes that could affect the ability of CPNPP to have cooling water available at temperatures consistent with operational requirements.
As previously mentioned in support of previous contentions, legal precedent should also apply here. These contentions being challenged by Vistra and the NRC Staff should not be precluded at the admissibility stage.23 What is required for admissibility is that the intervenor state the reasons for its concerns, which it has also done here.24 The standard for admitting a contention is not meant to be equivalent to the standard of evidence at a trial on the merits; the truth or falsity of the contention is reserved for litigation.25 The contention rules require only that contentions have at least some minimal factual and legal foundation in support, and CFUR argues that Contention 3 meets this initial burden.26 REPLY IN SUPPORT OF CONTENTION 4: The LRA fails to consider Greenhouse Gas emissions as required by the Council of Environmental Qualitys (CEQ) National Environmental Policy Act (NEPA) Guidance.
In its fourth and final Contention, CFUR submits that Greenhouse Gas emissions were not considered as required by the Council of Environmental Qualitys NEPA Guidance, and further contends four points: a.) the CPNPPs LRA/Environmental Report (ER) fails to 23 See Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), supra.
24 Public Service Co. of New Hampshire, (Seabrook Station, Units 1 and 2), supra.
25 Washington Public Power System (WPPSS Nuclear Project No. 2) ALAB-722, 17 NRC 546, 551 n. 5 (1983).
26 U.S. Dept. of Energy (High Level Waste Repository), supra; See Pacific Gas & Electric Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation), supra.
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comply with the QEQ Guidance; b.) the Application fails to consider climate impacts on Comanche Peak reactors and reactor safety; c.) the Application fails to consider anticipated water shortages; and d.) the Application fails to consider increases in extreme weather in Texas.
Vistra and the NRC staff both object to this Contention 4 for some of the same reasons as mentioned before. Both claim that this contention is beyond the scope of the proceeding because, for example, the Applicant apparently is under no legal obligation to adhere to CEQ Guidance, even if the timing of the Federal Register notice had come prior to Vistras submission of its Application. Staff specifically asserts that the 2023 CEQ Guidance is not admissible because the Guidance does not create legal requirements for license renewal. Apparently, as Vistra explains, the NRC is not bound by CEQs NEPA regulations or guidance unless the Commission adopts them by rulemaking. This may be true, but why wouldnt the Applicant not want to address this Guidance in an amended LRA, given the current climate crisis and the public concerns that could be generated by its failure to do so?
Staff submits that GHG impacts for CPNPP are discussed in the ER and are determined to result primarily from the use of equipment on site and commuting by employees. 27 If this is the case, then CFUR would contend that a more robust analysis the CEQ Guidance and the various climate impacts, including anticipated water shortages be considered by the Applicant.
CFUR once again contends that petitioner should not be precluded from asserting its causes at the admissibility stage.28 The petitioner should be able to state the reasons for its concerns, which it has done here.29 The standard for admitting a contention is not meant to be 27 ER at 3-29; 3-42.
28 See Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), supra.
29 Public Service Co. of New Hampshire, (Seabrook Station, Units 1 and 2), supra.
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equivalent to the standard of evidence at a trial on the merits; the truth or falsity of the contention is reserved for litigation.30 The contention rules require only that contentions have at least some minimal factual and legal foundation in support, and CFUR argues that Contention 4 also meets this initial burden.31 WHEREFORE, CFUR prays the Commission admit its contentions 1, 2, 3, and 4 for adjudication.
April 3, 2023 Respectfully submitted,
/Signed (electronically) by/
W. David Griggs WILLIAM DAVID GRIGGS Attorney at Law Texas State Bar No. 08491100 1925 Belt Line Rd., Suite 552 Carrollton, Texas 75006 Telephone: (214) 244-5979 david@dgriggs.com COUNSEL FOR PETITIONER CITIZENS FOR FAIR UTILITY REGULATION 30 Washington Public Power System (WPPSS Nuclear Project No. 2) ALAB-722, 17 NRC 546, 551 n. 5 (1983).
31 U.S. Dept. of Energy (High Level Waste Repository), supra; See Pacific Gas & Electric Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation), supra.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: §
§ DOCKET NOS. 50-445 and VISTRA OPERATIONS COMPANY, LLC § 50-446
§
§ NRC-2022-0183 COMANCHE PEAK NUCLEAR POWER § PLANT, UNITS 1 AND 2 § April 3, 2023 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. Section 2.305, I hereby certify that copies of the foregoing Citizens for Fair Utility Regulations Reply in Support of Petition for Leave to Intervene and Request for Adjudicatory Hearing have been served upon the Electronic Information Exchange (NRC Filing System), in the captioned proceeding, this 3rd day of April, 2023.
Respectfully submitted,
/Signed (electronically) by/
W. David Griggs WILLIAM DAVID GRIGGS Attorney at Law 1925 E. Belt Line Rd., Suite 552 Carrollton, Texas 75006 (214) 244-5979 david@dgriggs.com 15