ML23111A175
| ML23111A175 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 04/19/2023 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| RAS 56703, 50-445-LR, 50-446-LR, NRC-2358 | |
| Download: ML23111A175 (0) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Vistra Operations Company, LLC Docket Number: 50-445-LR and 50-446-LR Location: Teleconference Date: 04-19-2023 Work Order No.: NRC-2358 Pages 1-78 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1716 14th Street, N.W.
Washington, D.C. 20009 (202) 234-4433
1 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3 + + + + +
4 ATOMIC SAFETY AND LICENSING BOARD PANEL 5 + + + + +
6 ORAL ARGUMENT 7 ---------------------------x 8 In the Matter of: :
9 VISTRA OPERATIONS COMPANY, : Docket Nos.
10 LLC : 50-445-LR and 50-446-LR 11 (Comanche Peak Nuclear : ASLBP No.
12 Power Plant, Units 1 and 2): 23-978-01-LR-BD01 13 ---------------------------x 14 Wednesday, April 19, 2023 15 Video Teleconference 16 17 18 BEFORE:
19 G. PAUL BOLLWERK, III, Chair 20 GARY S. ARNOLD, Administrative Judge 21 SUE H. ABREU, Administrative Judge 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
2 1 APPEARANCES:
2 On Behalf of Vistra Operations Company, LLC.:
3 RYAN K. LIGHTY, ESQ.
4 PAUL BESSETTE, ESQ.
5 TIMOTHY MATTHEWS, ESQ.
6 of: Morgan, Lewis & Bockius LLP 7 1111 Pennsylvania Avenue, N.W.
8 Washington, DC 20004 9 202-739-5502 (Silverman) 10 202-739-5733 (O'Neill) 11 ryan.lighty@morganlewis.com 12 Paul.bessette@morganlewis.com 13 Timothy.matthews@morganlewis.com 14 15 On Behalf of the Nuclear Regulatory Commission:
16 ETHAN LICON, ESQ.
17 MARCIA CARPENTIER, ESQ.
18 of: Office of the General Counsel 19 Mail Stop - O-14A44 20 U.S. Nuclear Regulatory Commission 21 Washington, D.C. 20555-0001 22 marcia.carpentier@nrc.gov 23 Ethan.licon@nrc.gov 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
3 1 On Behalf of Citizens for Fair Utility 2 Regulation:
3 W. DAVID GRIGGS, ESQ.
4 1925 Belt Line Road 5 Suite 552 6 Carrollton, TX 75006 7 david@dgriggs.com 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
4 1 P R O C E E D I N G S 2 2:01 p.m.
3 CHAIR BOLLWERK: Good afternoon. Today 4 this Atomic Safety and Licensing Board is here to 5 conduct an initial prehearing conference in this 6 license renewal proceeding in which applicant, Vistra 7 Operations Company, LLC, or Vistra, requests that the 8 10 Code of Federal Regulations, or CFR Part 50 9 operating licenses for its Comanche Peak Nuclear Power 10 Plant, Units 1 and 2, be extended for an additional 20 11 years until February the 3rd, 2050 and February the 12 2nd, 2053 respectively.
13 In response to a hearing opportunity 14 notice published in Volume 87 of the Federal Register 15 at page 73,798 on January 30, 2023, petitioner, 16 Citizens for Fair Utility Regulation, or CFUR, 17 submitted a hearing petition which it amended on March 18 the 1st, 2023 that includes four contentions 19 contesting various aspects of Vistra's October 23, 20 2022 license renewal request. These include 21 challenges to Vistra's analysis of radiation releases 22 and exposures to the public, facility workers and 23 terrestrial and aquatic organisms; seismic risks; 24 cooling water availability in light of climate change; 25 and climate change impacts generally including NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
5 1 greenhouse gas emissions from facility operations.
2 In answers dated March the 27th, 2023, 3 while not contesting CFUR's standing to intervene in 4 this proceeding, Vistra and the NRC staff both seek 5 the denial of CFUR's amended hearing request asserting 6 the petitioner, CFUR, has failed to submit an 7 admissible contention, a pleading defect that will 8 result in the termination of this adjudicatory 9 proceeding.
10 In an April 3, 2023 reply to the Vistra 11 and NRC staff answers, petitioner, CFUR, again 12 declared that it should be admitted as a party to this 13 proceeding because each of its contentions comply with 14 the six standards in 10 CFR Section 2.309(f)(1)(iv) 15 governing contention admissibility.
16 Previously, in our April 26, 2022 issuance 17 regarding the scope and procedures for this initial 18 prehearing conference, we indicated that we were 19 convening this oral argument to allow the participants 20 to present their positions and respond to Board 21 questions concerning three issues associated with the 22 CFUR contentions, questions that I will describe in 23 more detail as this conference moves forward.
24 Before beginning the oral argument, I 25 would like to introduce the Licensing Board members NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
6 1 and then have the representatives of the participants 2 identify themselves for the record along with any 3 individuals they may have available to provide them 4 with assistance in responding to the Board's 5 questions. Administrative Judge Gary Arnold is a 6 nuclear engineering, while Administrative Judge Sue 7 Abreu is an engineer, a nuclear medicine physician, 8 and an attorney, who also serves as the Licensing 9 Board Panel's Associate Chief Administrative Judge 10 Technical. My name is Paul Bollwerk and I'm an 11 attorney and the Chair of this Licensing Board.
12 We are all participating from the 13 Licensing Board Panel's hearing room at NRC 14 Headquarters in Rockville, Maryland as is our law 15 clerk, Noel Johnson, while our law clerks Allison Wood 16 and Emily Newman are attending remotely via video 17 connection.
18 At this point, I'd like to have counsel 19 for the various participants identify themselves for 20 the record as well as any individuals they may have 21 available to provide them with assistance in 22 responding to Board questions. Why don't we start 23 with the applicant, Vistra, then move to the NRC 24 staff, then finally petitioner, CFUR?
25 MR. LIGHTY: Thank you, Your Honor, and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
7 1 may it please the Board. Ryan Lighty of Morgan Lewis 2 and Bockius appearing as counsel for the applicant, 3 Vistra Operations Company, LLC. Joining me in person 4 today are my co-counsel, Paul Bessette and Timothy 5 Matthews, also of Morgan Lewis. And Vistra personnel 6 are monitoring this proceeding remotely and are 7 standing by to provide support for responding to Board 8 questions if that is necessary.
9 CHAIR BOLLWERK: All right. Thank you 10 very much.
11 MR. LICON: Good afternoon.
12 CHAIR BOLLWERK: Staff?
13 MR. LICON: Apologies. Good afternoon.
14 My name is Ethan Licon and I along with my colleague, 15 Marcia Carpentier, are counsel for the NRC staff.
16 Joining me are -- there is a technical staff 17 supporting in the room -- is Jeffrey Rikhoff as well 18 as other technical staff standing by virtually.
19 CHAIR BOLLWERK: All right. Thank you.
20 MR. GRIGGS: Chairman Bollwerk, thank you 21 for the opportunity. My name is David Griggs. I'm 22 counsel representing Citizens for Fair Utility 23 Regulations, CFUR, in this proceeding today. I am 24 appearing by myself. I do not have a support staff, 25 but I'll do the best I can. Thank you for this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
8 1 opportunity.
2 CHAIR BOLLWERK: All right. I noticed you 3 used the acronym CFUR. Maybe that's easier to say 4 than C-F-U-R, so I may adopt that as well. I 5 appreciate that. Thank you.
6 MR. GRIGGS: Thank you, Your Honor.
7 CHAIR BOLLWERK: Okay. I would note that 8 prior to beginning this session, I asked all the 9 participants' representatives to try to remember that 10 notwithstanding we're using a video link via Webex to 11 which the court reporter has access. As a courtesy to 12 those members of the public and others who are joining 13 us via a listen only telephone connection, as they 14 start to speak, to please identify themselves so that 15 it will be clear who is talking. Also, as the 16 participants' representatives are aware, we're 17 attempting to monitor everyone's connectivity in an 18 effort to see if anyone drops off unexpectedly so we 19 can take steps to try to ensure we don't move forward 20 with the argument until they are able to reconnect the 21 video link or telephone.
22 I would also note that we made available 23 to the participants and interested members of the 24 public via an April 10, 2023 Board issuance in this 25 case, a notice on the NRC's public website and an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
9 1 agency press release information on how to access this 2 conference by telephone on a listen only basis. We 3 hope that those members of the public and others who 4 wish to listen to this conference have been able to 5 access that bridge line this afternoon.
6 I would observe as well that this 7 proceeding is being transcribed and a transcript of 8 the conference should be available in the NRC's 9 electronic hearing docket by early next week.
10 As to the process that we'll follow for 11 today's argument, as we outlined in our April 6, 2023 12 issuance, each participant's designated representative 13 has been allotted five minutes within which to present 14 its initial position regarding the three specific 15 issues proffered by the Board. The order of 16 presentation will differ depending on the particular 17 question with the first participant making a 18 presentation also being afforded an additional five 19 minutes at the end for a rebuttal presentation.
20 I would observe as well that we have read 21 the participants' pleadings, so we hope that their 22 arguments will focus on identifying the principal 23 points in controversy regarding each issue posed by 24 the Board and the information supports or rebuts their 25 legal and/or factual claims regarding that issue.
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10 1 And as we also noted in our April 6th 2 order, because this argument is not an evidentiary 3 hearing, with one exception regarding Issue 2 that I 4 will explain when we reach that issue, participants 5 should not be attempting to introduce material during 6 the argument that has not already been cited in their 7 pleadings.
8 Finally, for the record as well as the 9 understanding of those listening in this afternoon, 10 prior to beginning of participants' presentations on 11 each issue, I will restate the issue as it was set 12 forth in our April 6th memorandum and order and 13 provide the participants order of presentation. And 14 I should note that while we indicated in our April 6th 15 issuance that we hope to complete this argument in 16 about an hour, I'm thinking now that probably 17 hopefully means by around 3:30 p.m. Eastern Time or 18 2:30 p.m. Central Time since we're already about 15 19 minutes into the argument time.
20 So let's begin with Issue 1 and again, I 21 would seek the indulgence of the parties. I'm going 22 to read it into the record. CFUR's Contention 1 23 claims that the Vistra Environmental Report, or ER, 24 fails to analyze the cumulative radiological impacts 25 of an additional 20 years of Comanche Peak facility NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
11 1 operations in terms of human health risks and farm, 2 crop, wildlife, and vegetation impacts. Citing the 3 CFUR amended petition at pages 11 and 12, in its 4 answer, the NRC staff asserts that this portion of 5 Contention 1 is inadmissible because one, the category 6 1 generic finding in 10 CFR Part 51 Subpart A, 7 Appendix B, Table B1 regarding the radiological 8 impacts of extended operation upon members of the 9 public, plant workers, and terrestrial, aquatic 10 organisms required CFUR to seek a 10 Code of Federal 11 Regulations Section 2.335 waiver to challenge this 12 generic impacts finding. And second, that CFUR 13 failed to challenge the plant-specific Table B1 14 Category 2 cumulative impacts discussion in ER Section 15 4.12. And the citation there was to the NRC staff 16 answer at 17 and 18.
17 CFUR, in its reply, asserts that the 18 staff improperly characterizes its arguments as not 19 meeting the federal or NRC definitions of cumulative 20 impacts, quote, unquote, but does not appear to 21 address the substance of the staff's arguments citing 22 the CFUR reply at 5.
23 So our question then is, is this 24 cumulative impacts claim included by one or both of 25 the two reasons assigned by the NRC staff in its NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
12 1 answer? And the order of presentation is CFUR five 2 minutes, the NRC staff five minutes, VISTRA five 3 minutes, and then CFUR 's rebuttal is five minutes.
4 And so why don't we then begin with CFUR's initial 5 response to our question.
6 MR. GRIGGS: Thank you, Chairman Bollwerk.
7 My name is David Griggs. Again, I represent CFUR and 8 we contend, as representing CFUR, that we have 9 challenged the plant-specific Category 2 cumulative 10 impacts discussion in the ER, Section 4.12, and we'd 11 like to further explain and elaborate on that now.
12 In Section 4.12, the requirement is stated 13 from 10 CFR 51.53 that applicants, in their LRA, the 14 License Renewal Application, shall provide information 15 about other past, present, and reasonably foreseeable 16 future actions occurring in the vicinity of the 17 nuclear plant that may result in a cumulative effect.
18 It goes on to state that the cumulative impacts 19 analysis takes into account all actions however minor 20 since the impacts from individually minor actions may 21 be significant when considered collectively over time.
22 CFUR contends that Vistra has not 23 adequately considered some very significant plant-24 specific and nearby geographical area impacts and 25 health-related risk. It's a well-known fact that much NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
13 1 of the DFW, Dallas-Fort Worth metropolitan area is a 2 non-attainment area for an 8-hour ozone. In fact, 3 Vistra's ER, in Section 3.3.3.1 points this out. Nine 4 of the counties in the air control region make up this 5 non-attainment region including five counties within 6 a 50-mile radius of Comanche Peak. And Figure 3.36 in 7 Appendix E, the ER, shows a diagram of those counties.
8 In that same section of the ER, the text 9 specifies that the Clean Air Act has six criteria 10 pollutants for air determination. One of these is 11 particulate matter, or PM. This region has had a long 12 battle with this pollutant, and the area around 13 Comanche Peak has an abundance of PM sources that the 14 ER has not considered which we believe clearly 15 contribute to the Category 2 cumulative effects 16 contended in our petition.
17 And it is this particulate matter and its 18 relationship with radionuclides, which were discussed 19 in our petition, radionuclides being the radioactive 20 decay of unstable atoms that we want to bring to the 21 Board's attention today. One of the documents we 22 submitted in our supplemental references last week was 23 a 2018 study published by the Journal of the American 24 Heart Association, funded by a grant from EPA and 25 Harvard. And that study set out to understand the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
14 1 particle-bound radionuclide exposures on blood 2 pressure and its implications on public health. The 3 study found that inhaled particles act as vectors for 4 radionuclides which may continue to emit radiation 5 after inhalation and disposition in the human 6 respiratory tract.
7 The findings suggest that particulate-8 bound radionuclides, on inhalation, can subsequently 9 lead to systemic inflammation and oxidative stress, 10 potentially causing changes in the vascular structure 11 or function. This study is particularly troubling for 12 the region surrounding Comanche Peak given that the 13 levels of particulate matter are high due to a number 14 of factors including the pollutants that contribute to 15 non-attainment.
16 In another supplemental document filed 17 last week, we cited a peer-reviewed report on 18 radionuclide contamination as a risk factor in 19 terrestrial systems that analyze biological effects on 20 radionuclides due to emitted ionizing radiation. The 21 article reported that radionuclides have long half-22 lives and discussed their effect on thyroid cancers on 23 the populations of Ukraine and Russia after the 24 Chernobyl accident. The report concluded that 25 environmental contamination by anthropogenic NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
15 1 radionuclides without a doubt create serious health 2 risks.
3 So Judges, as you know, radionuclides may 4 be released form nuclear power plants into the 5 environment in many ways. The new GEIS on page 326 6 states that during normal operations and potentially 7 during a refurbishment, nuclear power plants can 8 release gaseous emissions that deposit small amounts 9 of radioactive particles in the surrounding 10 environment, and the GEIS also states that animals may 11 experience exposure to ionizing radiation through 12 direct air -- contact with the air, with water, 13 inhalation, or even ingestion of food -- contaminated 14 food, water, and soil.
15 The ER is very light on reporting of 16 polluting facilities in the region. It should be 17 noted that there are numerous industrial sources that 18 produce particulate matter within a 50-mile radius, 19 even within a close radius of the plant. Several 20 concrete batch plants are in the area. Granbury, 21 Nemo, Cleburne areas are surrounding communities.
22 Major cement manufacturing industries, kilns with long 23 histories of significant PM pollution are located in 24 Midlothian, a city nearby, and the company even 25 produces its own -- Vistra produces its own NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
16 1 particulate matter up to 3.15 a year.
2 So in conclusion, we contend that there 3 are -- were important cumulative impacts that were not 4 fully considered in the ER dealing with a combination 5 of radionuclides and the heavily prevalent PM in the 6 region as we discussed earlier. It is this cumulative 7 impact together with radionuclides that we believe 8 pushed this to a Category 2 concern. Thank you.
9 CHAIR BOLLWERK: I'm going to anticipate 10 at least one argument that's going to be made by the 11 staff and the applicant, which is the -- I believe the 12 references you just gave us were to the filing you 13 made on April 14th?
14 MR. GRIGGS: I believe that -- the 14th?
15 Possibly. Yes -- yes, that's correct, Your Honor.
16 There were several references that -- yes, April 14th, 17 the two articles I just quoted are on that list.
18 CHAIR BOLLWERK: Right. And in the order 19 we issued, we indicated that any additional references 20 were only supposed to be relative to Issue 2, which 21 deals with Contention 2, on seismic risk, not -- it 22 was now allowing us to -- allowing you to file 23 additional information about Contention 1. Do you 24 have any response to that? Should we even be 25 considering -- Your Honor, you had put this up for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
17 1 additional information. We were just simply trying to 2 explain what we believe the cumulative impacts are.
3 The quotes that we gave were to the ER which 4 obviously, the applicant has, and I apologize if we 5 misunderstood. But we thought that by giving you the 6 additional references, that we would be covered. So 7 apologize if that was a misunderstanding.
8 CHAIR BOLLWERK: All right. Well, I think 9 footnote 5 that we had that in was pretty clear, but 10 we'll let the staff and the applicants -- see what 11 they have to say about that. Also, why -- you really 12 haven't said anything about the Category 1 exclusions 13 that apply to each of these radionuclide areas. Don't 14 those categorical exclusions, will they take into 15 account cumulative impacts?
16 MR. GRIGGS: Well, Your Honor, in this 17 particular case, there are significant differences in 18 this area and this plant-specific situation that we 19 believe are relevant here. Because of the 20 circumstances that we describe, we believe that it is 21 a Category 2 designation. I understand your concern 22 about the policy issues that the NRC has to consider, 23 but what we were trying to do with our argument was to 24 make sure that we included other sources in the 25 community that would combine to make this a serious NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
18 1 impact that would qualify for a Category 2 analysis.
2 CHAIR BOLLWERK: All right. But if, 3 obviously, the Board disagrees, this is a Category 1 4 analysis, which absent a waiver petition under Section 5 2.335, we cannot consider additional information. I 6 take it that's going to be a problem for your 7 argument.
8 MR. GRIGGS: Well, that's certainly a 9 decision for the Board to make, Your Honor, but we are 10 representing the public here, an organization that 11 represents people who are directly affected by this 12 license renewal, and we want to have the opportunity 13 to present our case to the Board.
14 CHAIR BOLLWERK: All right. Let me see if 15 Judge Abreu or Judge -- no further questions. All 16 right. Thank you. So we'll come back to you for 17 rebuttal at the end on this issue. And let's move 18 then to the NRC staff, please. Thank you, sir.
19 MR. GRIGGS: Thank you.
20 MR. LICON: Thank you, Your Honor. Again, 21 my name is Ethan Licon and I am counsel for the NRC 22 staff beginning to speak now. The petitioner's 23 cumulative impacts claim is precluded for two reasons.
24 First, petitioner uses the term cumulative impacts in 25 the second and fourth bases for Contention 1. But NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
19 1 cumulative impacts or cumulative effects is a term of 2 art with a specific meaning that does not with how the 3 petitioner uses the term. The petitioner uses the 4 term to describe areas that the Commission has 5 designated by rulemaking as Category 1 generic issues, 6 which are not subject to challenge and adjudication 7 without a waiver under 10 CFR 2.335. And the 8 petitioner has not requested such a waiver here.
9 Second, cumulative impacts in the sense of 10 the term of art is indeed a Category 2 plant-specific 11 issue which could be within the scope of a license 12 renewal proceeding. However, petitioner has not 13 actually raised that issue; that is the petitioner has 14 not provided any specific reference to the cumulative 15 impacts discussion found in Section 4.12 of the 16 applicant's Environmental Report. And to the extent 17 that the petitioner is doing that -- or did that in 18 its opening statement just now in reply to the Board, 19 they're doing this for the first time today and 20 basically are submitting a new Contention, not the one 21 they fled for which they offered no support. As such, 22 the petitioner has also failed to raise a genuine 23 dispute with the applicant -- with the application as 24 required under 10 CFR 2.309(f)(1) and, therefore, for 25 all these reasons, the petitioner's cumulative impacts NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
20 1 claim is inadmissible.
2 So to explain those reasons further, the 3 NRC regulations are clear that Commission rules and 4 regulations are not subject to challenge in 5 adjudicatory proceedings unless the petitioner 6 requests a waiver under 10 CFR 2.335(e). As explained 7 in our pleading, the NRC has developed a generic 8 environmental impact statement, or GEIS, for license 9 renewal that analyzes and resolves some environmental 10 impacts generically by rule when they are expected to 11 be the same for all nuclear power plants or those of 12 a certain type. This analysis includes the impacts of 13 operating the plant for an additional 20 years and 14 also the impacts of any refurbishment that needs to be 15 done through the period of extended operation. Issues 16 that are resolved generically are Category 1 issues 17 and are incorporated into NRC regulations in Appendix 18 to 10 CFR Part 51.
19 License renewal applicants are not 20 required to submit additional analyses for Category 1 21 issues in their environmental reports. They can rely 22 on the analysis the NRC staff conducted when 23 designating the issues as Category 1. Other 24 environmental issues are Category 2 issues and a 25 license renewal applicant must address on a site-NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
21 1 specific basis. Here the petitioner's cumulative 2 impacts claim alleges a failure to analyze cumulative 3 radiological impacts related to potential health risks 4 and impacts to farms, crops, wildlife, and vegetation 5 from operating the Comanche Peak Units for the period 6 of extended operation. But the term cumulative 7 impacts or effects, as used in the GEIS and/or NEPA 8 analyses refers to the -- to, quote, effects on the 9 environment that result from the incremental effects 10 of the proposed action when added to other past, 11 present, and reasonably foreseeable future actions 12 regardless of what agency or person undertakes such 13 other actions. That is cumulative impacts or 14 cumulative effects refers to the impacts from an 15 action curing license renewal and other actions such 16 as impacts to environmental resources from a nearby 17 coal plant, construction project or et cetera, things 18 like that.
19 CHAIR BOLLWERK: We need to take a break 20 so I will (telephonic interference) now and take a 21 brief recess.
22 MR. LICON: Understood. Thank you.
23 (Whereupon, the above-entitled matter went 24 off the record at 2:25 p.m. and resumed at 2:28 p.m.)
25 CHAIR BOLLWERK: All right. Judge Abreu NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
22 1 is temporarily indisposed but she's asked us to go 2 ahead and continue on. She's going to rely on the 3 transcript for any portion of the argument that she 4 misses going forward. So staff counsel had about a 5 minute left in his argument respecting Issue 1, and 6 I'll let you go ahead and continue then.
7 MR. LICON: Thank you, Your Honor. This 8 is Ethan Licon again. So as we were saying, the --
9 such cumulative impacts, in the sense of the term of 10 art, are indeed analyzed in Section 4.12 of the 11 applicant's Environmental Report. However, the 12 petitioner makes no reference to this section 13 whatsoever in its pleading and thus fails to raise a 14 genuine dispute with the application. To our 15 knowledge, this -- today is the first time that they 16 have specifically referenced 4.12.
17 Instead petitioner asserts a failure to 18 analyze the cumulative radiological, quote, 19 cumulative, unquote, radiological impacts to health 20 risks, farms, wildlife, and vegetation from the 21 operation of the Comanche Peak Units for an additional 22 20 years. Presumably, the cumulative, in the sense 23 that CFUR uses it, is supposed to refer to the single 24 action of operating the plant through the 20-year time 25 period. May I finish my sentence?
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23 1 CHAIR BOLLWERK: Yes, go ahead.
2 MR. LICON: Okay. But the Commission, by 3 rule, found these to be Category 1 issues which are --
4 and we've said this in our pleading -- radiation 5 exposures to the public, radiation exposures to plant 6 workers, exposure of terrestrial organisms to 7 radionuclides, and exposure of aquatic organisms to 8 radionuclides.
9 CHAIR BOLLWERK: All right. So tell me, 10 really the Category 1 exclusions that apply to the 11 public, to workers, to terrestrial and aquatic 12 organisms, they really encompass cumulative impacts in 13 this context?
14 MR. LICON: I'm sorry, Your Honor, you cut 15 out for me at the last part.
16 CHAIR BOLLWERK: All right. We'll try 17 again. So it's the staff's position then that -- or 18 is it the staff's position that with respect to the 19 Category 1 designations for worker exposure, exposure 20 to the public in radionuclides as well as terrestrial 21 and aquatic organisms, that the cumulative impacts, 22 quote, unquote, are encompassed within that Category 23 1 finding?
24 MR. LICON: Yes, Your Honor, in the sense 25 that CFUR has referred to these radiation effects or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
24 1 exposures, those are encompassed within these Category 2 1 findings.
3 CHAIR BOLLWERK: And so what if any 4 radiological impacts need to be assessed under 5 cumulative impacts under Section 4.12 or somewhere 6 else in the ER?
7 MR. LICON: In that regard, the 8 petitioner's contention is still inadmissible because 9 they have not made any sort of specific reference to 10 Section 4.12 as required to do so -- as they would be 11 required to do so to raise a genuine dispute with the 12 application.
13 CHAIR BOLLWERK: Well, if I had this as a 14 Category 2 -- cumulative impacts for Category 2. If 15 they had made that argument under -- with regard to 16 Section 4.12, would that then mean that they had an 17 admissible contention?
18 MR. LICON: If they had -- so what youre 19 asking, I think, is if the petitioners had basically 20 engaged with Section 4.12, would there be any other 21 issues --
22 CHAIR BOLLWERK: No -- if -- not 23 withstanding the designation of Category 2, as 24 cumulative impacts -- excuse me -- as Category 2, does 25 it make any difference in this context, or is it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
25 1 really all encompassed within Category 1 in terms of 2 cumulative impacts?
3 MR. LICON: Can I consult with my 4 technical staff for one moment?
5 CHAIR BOLLWERK: Sure. Go ahead.
6 (Pause.)
7 CHAIR BOLLWERK: Let me just say for the 8 record, Judge Abreu has joined us again.
9 (Pause.)
10 MR. LICON: Thank you for your patience, 11 just finished conferring.
12 CHAIR BOLLWERK: Before you go on, let me 13 just make one point for the record. The Vistra ER has 14 a cumulative impacts section which is 4.12 at page 4-15 37. The ER itself is part of the Vistra application 16 that's found at ADAMS Accession Number ML2276AO82.
17 It's rather a long document. But it also has the 18 terrestrial discussion in Section 4.12.5.1 at pages 4-19 40 to 4-41, and aquatic discussion at Section 4.12.5.2 20 at page 4-41, and the human health discussion of the 21 cumulative impacts in Section 4.12.8 at pages 4-42 to 22 43. So it does have some references to those 23 subjects, but I'm wondering what's the relationship 24 between those sections and obviously the Category 1 25 exclusion that applies generally for radionuclides?
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26 1 MR. LICON: Thank you, Your Honor. So if 2 there were other radiation sources in the community 3 within 50 miles, for example, another plant or a 4 Department of Energy site or other uses of radioactive 5 material that the petitioner did identify in support 6 of its contention that these -- that effects from 7 these hypothetical sites were not adequately 8 considered, that could be -- that would be something 9 that would support an admissible contention. But the 10 petitioner hasn't done anything of the sort here.
11 CHAIR BOLLWERK: Right.
12 (Simultaneous speaking.)
13 CHAIR BOLLWERK: Any cumulative impacts 14 that are associated with the facility operation, 15 whether they're low levels of radiation or high levels 16 of radiation are all going to be within the Category 17 1 exclusion?
18 MR. LICON: Yes. That's correct, Your 19 Honor.
20 CHAIR BOLLWERK: If there were another 21 nuclear facility or some other source of radiation 22 that fell within an area -- within a reasonable area 23 of the plant, that then would be the cumulative 24 impacts in conjunction with what's coming from the 25 facility that would need to be considered?
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27 1 MR. LICON: Yes. That's correct, Your 2 Honor.
3 CHAIR BOLLWERK: As a cumulative impact --
4 as a Category 2 cumulative impact in the ER?
5 MR. LICON: Yes, that's correct.
6 CHAIR BOLLWERK: Thank you. Okay. Any 7 other questions by other Board members? All right.
8 Thank you very much. Let's move on to Vistra counsel 9 then. Thank you.
10 MR. LIGHTY: Thank you, Your Honor. As 11 noted in our answer pleading, the claims in Contention 12 1 were abnormally vague. And the NRC staff and Vistra 13 were left to guess what arguments CFUR was trying to 14 advance. We had to guess whether it was a safety or 15 environmental claim. We had to guess what portion of 16 the application was being challenged. We had to guess 17 whether CFUR's use of the term cumulative was intended 18 to have its common meaning or whether CFUR was trying 19 to invoke the need by term of art.
20 And CFUR's reply at page five criticized 21 the staff for guessing incorrectly, but the 22 adjudicatory rules don't place the burden on 23 responding parties to guess what claims are being 24 raised. Quite the opposite. The fact that we're 25 still trying to sort out the meaning of this claim NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
28 1 seven weeks after the hearing request deadline has 2 expired is a pretty textbook indication that the 3 petition lacks the clarity and precision required for 4 an admissible contention, and that alone is sufficient 5 reason to reject it.
6 Bur more directly to the Board's question, 7 this issue is a bit of a red herring because CFUR's 8 claim is inadmissible regardless of which meaning CFUR 9 intended. If CFUR intended its claim is a challenge 10 to the ER discussion of impact from the proposed 11 action, then, as noted in our answer at pages 12 to 12 13, it's inadmissible because radiological impacts to 13 the public, plant workers, and terrestrial and aquatic 14 organisms are Category 1 issues analyzed in the GEIS.
15 The ER adopts those analyses by reference, and the 16 conclusions are codified in the NRC's regulations at 17 Part 51 Table B. And NRC regulations can't be 18 challenged in individual adjudicatory proceedings 19 absent a waiver, which CFUR neither requested nor 20 obtained.
21 Alternatively, if CFUR intended its claim 22 as a challenge to the ER discussion of incremental 23 radiological impacts of other past, present, and 24 future actions, meaning radiological impact not 25 attributable to Comanche Peak license renewal, then it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
29 1 is still inadmissible because CFUR's petition entirely 2 ignored the relevant cumulative impacts discussion in 3 ER Section 4.12, and CFUR did not rebut that assertion 4 in its reply.
5 We're hearing for the first time today new 6 information about a new line of argument relating to 7 particulate matter relating to air attainment, 8 arguments that were neither raised in the petition, 9 the answer pleadings, or the reply and are just being 10 raised now for the first time. In our view, Your 11 Honors, this is an untimely attempt to amend the 12 contention, and it should be rejected. The 13 petitioners have not submitted petition under 10 CFR 14 Section 2.309(c) seeking leave of the Board to amend 15 its contention to raise these new arguments out of 16 time.
17 The CFUR attempted to rely on the source 18 materials that were in its advisement of supplemental 19 authorities filed on April 14th, but as Your Honor 20 noted, the Board's order of April 6th made very clear, 21 on page three, that there is only one exception to the 22 prohibition on citing material that had not already 23 been cited in the participants pleadings before the 24 Board, and it referred to Footnote 5 of that order on 25 page five, and the first few words of that footnote NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
30 1 make very clear that the invitation to submit 2 supplemental authority is limited to, quote, this 3 question, end quote. And that corresponds to question 4 two of the Board's order which relates only to 5 Contention 2.
6 So we do object to the reference to those 7 new authorities in the record today, and we believe 8 that these new arguments are untimely and should be 9 disregarded by the Board.
10 I would like to briefly turn back to Judge 11 Bollwerk's question to the staff regarding the 12 difference between cumulative impacts that are 13 considered in the Category 1 issues using the term 14 cumulative given its common meaning versus what is 15 left to be considered in the Category 2 cumulative 16 impacts issue. And I think Judge Bollwerk really kind 17 of hit on this distinction that the Category 1 issues 18 relate to the impacts of the proposed action itself, 19 Comanche Peak license renewal. And as that term is 20 used in different parts of the GEIS, you know, for 21 example, at page 4-145 and 4-138, and talking about 22 cumulative exposures of -- you know, to radiological 23 effluence, that term is used in a context of a 24 cumulative exposure from the proposed action over the 25 duration of license renewal; in other words, 20 years NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
31 1 of cumulative radiological exposures, where the term 2 used in Section 4.12 is the NEPA term of art referring 3 to other past, present, and future actions aside from 4 Comanche Peak license renewal.
5 And with that, we're happy to take any 6 questions the Board may have.
7 CHAIR BOLLWERK: All right. Thank you.
8 Any questions, Board members?
9 JUDGE ARNOLD: I do have a -- this is 10 Judge Arnold. The cumulative impact in 4.12.8 says it 11 considers the radiological effect to the public. When 12 they're talking about the effect to the public, do 13 they consider all the various streams by which 14 radiological material may get to the public? I mean 15 does this include through farms and through fish that 16 are caught and consumed, or is it just direct 17 radiation?
18 MR. LIGHTY: I think the Section 4.12.8 19 human health discussion is broader and would look at, 20 you know, radiological impacts from sources other than 21 the plant itself. But I think the geography, the 22 geographic scope may depend on the source, on the 23 resource area because what youre looking at in 24 cumulative impacts is how the impacts from license 25 renewal may intermingle with these other impacts. And NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
32 1 so the geographic scope or the chronological scope may 2 depend on resource area.
3 JUDGE ARNOLD: I guess that doesn't, I 4 think, address my question. When they talk about 5 effects to the public, are they looking at all 6 possible pathways to the public?
7 MR. LIGHTY: I believe the answer is yes, 8 that would be the scope of the cumulative impacts so 9 long as those effects would cross with impacts from 10 the license renewal itself.
11 JUDGE ARNOLD: Okay. Thank you.
12 CHAIR BOLLWERK: All right. Judge Abreu, 13 anything?
14 JUDGE ABREU: No.
15 CHAIR BOLLWERK: All right. Thank you, 16 sir. Why don't we go ahead and move back to Mr.
17 Griggs and his rebuttal.
18 MR. GRIGGS: Well, thank you, Your Honors, 19 and for the opportunity to have another shot here at 20 the end in rebuttal. I want to address some of the 21 things that Mr. Licon indicated and also Mr. Lighty 22 with regard to their interpretation of the cumulative 23 impacts, and they keep referring to Section 4.12. And 24 by the way, you know, CFUR responded with information 25 here because we felt that the Board wanted to get NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
33 1 clarification for what we were trying to say in our 2 petition and in our reply. It is difficult to be able 3 to anticipate all of what one needs when youre 4 representing the public here with a very strict set of 5 rules. But we respect those rules and what we're 6 trying to do is to provide you, as the Board, the 7 decision-making Board, with the information that you 8 need.
9 So we have cited Section 4.12 and we have 10 tried to bring in a discussion of other past, present, 11 and reasonably foreseeable future actions in the 12 vicinity that may result in a cumulative effect. It's 13 possible that our interpretation of this cumulative 14 effect is broader than what the staff seems to thing, 15 which is seemingly very narrow. They seem to believe 16 that this cumulative effect has only to do with 17 radiation sources and perhaps other nuclear plants, 18 you know, in the area. But -- and because of that, 19 they think that the concern is small. That's what's 20 in 4.12.8 in the ER.
21 However, our concern is not for other 22 nuclear facilities but the -- that's not the issue of 23 dispute. Our issue of dispute is the cumulative 24 effect of other pollution sources in the area that 25 combine with radionuclides coming from Comanche Peak NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
34 1 and then produce a serious concern for the public.
2 And I think Judge Arnold's on to that with his 3 question.
4 So we would interpret that a bit more 5 broadly, and I certainly can't believe this is a novel 6 question for the Board that a particulate matter would 7 not be radiated with radionuclides. That's not 8 exactly a brand new discovery, but it is certainly 9 something that is relevant in our area due to the very 10 high level of particulate matter that exists.
11 So I apologize if we weren't able to 12 completely articulate that from the get-go, but we 13 certainly felt like that was what the Board wanted to 14 know today, and that's what we're trying to produce.
15 I might also add that with regard to the 16 contention some case law that I quoted in the amended 17 petition, which I'm sure the Board is familiar with, 18 regarding your responsibilities here determining 19 admissibility. There are several cases that discuss 20 this, about what is required for the intervener to 21 produce, and it's basic. It states the reasons for 22 our concerns, that we need not -- that comes from the 23 Public Service Company vs. New Hampshire case. What 24 is required is the petitioner need not prove its 25 contention at the admissibility stage. The rules only NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
35 1 require that contentions have at least some nominal 2 factual and legal foundation and support and are not 3 intended to be a fortress to deny intervention. That 4 would be the U.S. Department of Energy case and 5 Pacific Gas and Electric, both of which are cited on 6 page four of our amended petition.
7 So Your Honors, I would just ask that you 8 be mindful of the fact that the public definitely 9 wants to deal with this issue. There's a tremendous 10 amount of concern in the community about the 11 continuation of this plant for another 20 years. The 12 cumulative effect over 20 years of radiological 13 releases and the potential carrying those releases on 14 particulate matter to the public, we think this is a 15 serious concern that needs to be explored and 16 certainly addressed in the Environmental Report.
17 Thank you.
18 CHAIR BOLLWERK: All right. Thank you, 19 sir. Any questions from any of the Board members?
20 All right. Thank you.
21 Let's then move to the second issue or 22 question that we raised. This one says that in 23 Contention 2, CFUR claims that smaller earthquakes 24 could contribute to structural cracking and damage at 25 the Comanche Peak facility. And it cites the CFUR NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
36 1 amended petition at 18 and 19.
2 The NRC staff answer noted the CFUR's 3 failure to challenge, quote, without specificity, 4 unquote, how Vistra carried out its aging management 5 evaluations or developed aging management programs 6 citing the NRC staff answer at 25 and 26.
7 In its reply, CFUR maintains that it could 8 not provide such a discussion because it did not have, 9 quote, meaningful, unquote, access to that information 10 citing the CFUR reply at 9.
11 And our questions in that regard is, how 12 did CFUR have, quote, unquote, meaningful access to 13 the relevant aging management material via citations 14 to that material in the Vistra application or 15 otherwise, and how would that material have provided 16 the requisite specificity, quote, unquote, needed to 17 support CFUR's claim? And with regard to that issue, 18 I would note that if a participant -- there was a 19 footnote indicating that if a participant responds to 20 this question, require a reference to material not 21 previously cited in this proceeding or a specific 22 uncited portions of otherwise previously cited 23 material such as the Vistra license renewal 24 application, participant should advise the Board and 25 other participants of those references by a filing NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
37 1 submitted no later than Friday, April 14, 2023. That 2 filing was not to include any arguments regarding the 3 issue or the cited materials. And for the record, I 4 would note that we received a filing from each of the 5 participants last Friday.
6 So for this particular issue or question, 7 the staff has five minutes and Vistra has five 8 minutes. CFUR has five minutes and then the NRC staff 9 has five minutes for rebuttal. So I'll turn to the 10 NRC staff.
11 MR. LICON: Thank you, Your Honor.
12 The petitioners had meaningful access to 13 relevant aging management material needed to plead its 14 Contentions with specificity, because it had access 15 and continues to have access, to public information 16 within the license renewal application itself, or 17 referenced throughout the application and available on 18 the NRC's public website, or in the NRC's online ADAMS 19 system.
20 Most of the application aside from the 21 environmental report, addresses aging management for 22 the Comanche Peak reactors, and challenges to this 23 material could be within the scope of this proceeding.
24 The petitioners also have access to NRC 25 regulations and guidance, approved technical reports, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
38 1 and other materials cited within the application.
2 If the petitioners had followed up on 3 citations they made to parts of the application 4 outside the environment report, or on other parts of 5 the same Tables cited, the petitioner would have 6 discovered time limited aging analyses, and Aging 7 Management Plans within the license renewal 8 application.
9 And various references to other publicly 10 available material, such as NUREG-1801, which is the 11 Generic Aging Lessons Learned Report, also called the 12 GALL Report.
13 We don't know exactly how they would have 14 challenged that information, or what contentions they 15 might have chosen to submit, but they did, and do 16 still, have access to it.
17 So, to help us get our bearings throughout 18 this explanation or example, for, that we're going to 19 go through, I will be referring to specific page 20 numbers in the license renewal application.
21 We'll be using the version located on the 22 NRC's public website, and referring to the .PDF page 23 numbers.
24 But our April 14 filing also refers to the 25 specific pages by the pagination the applicant uses, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
39 1 as well.
2 Or here to what petitioners did cite, and 3 what they had access to and could have cited, if they 4 wish to develop an aging management contention.
5 So, the methodology the applicant used to 6 identify plant structure, systems, and components for 7 aging management review, is described in section 2 of 8 the application.
9 The applicant mentioned this in their 10 filing last Friday, but the petitioners do not refer 11 to this information, or any of the sources described 12 in it.
13 Many of which can be found in the NRC's 14 ADAMS system, under ML or accession numbers that are 15 in the application.
16 So, it does not look as though the 17 petitioners intended to challenge the applicant's 18 methodology, to identify things for aging management 19 review.
20 The petitioners do cite to information 21 related to the potential cracking of various 22 structure, systems, and components in Section 3 of the 23 applicant, which is called Aging Management Review 24 Results.
25 They cite this information from a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
40 1 proposition that quote, the license renewal 2 application documents, cracking, and various 3 components, end quote.
4 However, first the petitioner does not 5 read the sections it cites correctly. Section 3 of 6 the license renewal application is not documenting 7 observed cracking, it is noting areas for which aging 8 management will be implemented, to manage cracking 9 through things like prevention, mitigation, detection, 10 or et cetera.
11 More importantly, with respect to 12 petitioner's claim about meeting full access, the 13 application does not just describe areas of the plant 14 where aging management will be used.
15 It directs readers to where in the 16 application, the relevant Aging Management Programs 17 can be found.
18 The application even includes hyperlinks 19 to sections of the application, that explains the 20 Aging Management Program to be implemented, and how 21 the proposed Aging Management Programs were consistent 22 with NRC approved Aging Management Programs, or how 23 they might deviate.
24 But the petitioner does not reference any 25 of this information.
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41 1 So to trace one example, starting from the 2 petitioner's own citation, the amended petition cites 3 to the second and third rows of the table titled Table 4 3.1.2-2, Reactor Vessels Internal Summary of Aging 5 Management Evaluation, on page 418 of the license 6 renewal application.
7 However, they did not read the Tables 8 correctly, or continue on by using the hyperlinks in 9 the column labeled, Aging Management Program, which 10 would link to the pressurized water reactor vessel 11 internals Aging Management Program on page 1439, and 12 the water chemistry Aging Management Program on 1417.
13 The remainder of petitioner's citations to 14 Section 3 of the application function in the same way.
15 And, our April 14 filing follows those hyperlinks for 16 those, as well.
17 But the petitioner has not referenced or 18 used this information, which was available to support 19 its claims.
20 Our April 14 filing also includes an 21 example that the petitioner didn't cite, but that 22 explicitly addresses seismic issues as related to 23 fatigue analysis of plant structure, systems, and 24 components.
25 That analysis begins on page 1015. And, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
42 1 the links associated with it take the reader to both 2 Aging Management Programs, and time limited aging 3 analyses for various plant components.
4 However, the petitioners have not 5 addressed any of this material either.
6 CHAIR BOLLWERK: In terms of the Aging 7 Management Program, is there any difference in how the 8 facility would treat, or Vistra would treat cracks 9 that were caused by things like perhaps thermal shock, 10 or issues like that, as opposed to how they would 11 treat cracks and damages relating to earthquakes?
12 MR. LICON: No, Your Honor.
13 Regardless of the mechanism, the Aging 14 Management Programs would still find the cracking and 15 manage it accordingly.
16 CHAIR BOLLWERK: All right. I think we've 17 come to the end then, thank you.
18 All right, counsel for Vistra?
19 MR. LIGHTY: Thank you, Your Honors.
20 The Board's query here really has two 21 parts. The first pertaining to access to information, 22 and the second to support for CFUR's claim. And I'll 23 address those separately.
24 As to the first query, CFUR's suggestion 25 that the aging management review was secret, is simply NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
43 1 incorrect.
2 We agree with the NRC staff, that all of 3 the information needed to comply with 10 CFR Section 4 54.21 alpha, the aging management review, was 5 presented or referenced in the LRA itself, which has 6 been publicly available since October of 2022.
7 And, there were no non-public or 8 proprietary attachments, to the LRA.
9 Specifically, Section 1.5 provides a 10 roadmap to the general structure of the LRA. And it 11 points to information such as Section 2, which covers 12 the scoping and screening process.
13 And Section 3, which covers the aging 14 management review results. And Appendix B, which 15 presents the Aging Management Programs, or AMPs 16 themselves.
17 So ultimately, CFUR's claim that it did 18 not have access to this information, is demonstrably 19 incorrect.
20 As to the second part of the query, the 21 Board asked how that information could have provided 22 the requisite specificity needed to support CFUR's 23 claim.
24 To answer that question in the literal 25 sense, that material could not have supplied support NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
44 1 for CFUR's claim, because there is no support for 2 CFUR's claim.
3 And in fact, those materials prove the 4 exact opposite of CFUR's claim, which is precisely why 5 the contention is inadmissible.
6 Taking a broader view, if the Board's 7 query was really aimed at understanding what specific 8 information CFUR should have reviewed in formulating 9 its claim, then the answer depends on what exactly 10 that claim is, or would be, which is still not 11 entirely clear.
12 In its reply at page 7, CFUR appears to 13 cast this argument as a contention of omission, that 14 the LRA fails to account for effects that earthquakes 15 could have on cracking of plant piping, structural 16 supports, concrete, and foundations.
17 But if CFUR is trying to attack the 18 plant's seismic basis generally, which it certainly 19 sounds like based on that quote, then relevant 20 information would not necessarily be found in the 21 aging management material, because the plant's seismic 22 basis more broadly, is beyond the scope of this 23 proceeding as explained at pages 18 to 20 of Vistra's 24 answer.
25 Alternatively, if CFUR was attempting to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
45 1 argue that the LRA omits consideration of age related 2 cracking, which would be in-scope, then the 3 information refuting that claim is found on the very 4 pages that CFUR cited.
5 As explained in our answer at pages 20 to 6 21, CFUR simply misunderstood those pages as somehow 7 documenting observed cracking at the plant. But those 8 pages say no such thing.
9 Based on a plain reading of the titles of 10 the tables that CFUR cited, page 418 presents part of 11 the aging management evaluation for reactor vessel 12 internals.
13 Its citation to pages between 1029 and 14 1049 summarize Aging Management Programs for the 15 containment building, and earth and water control 16 structures.
17 A proper reading of those Tables is 18 informed by the methodology discussions, throughout 19 the LRA.
20 And had CFUR reviewed that information, 21 perhaps it would have understood that the pages it 22 cited prove the exact opposite of its claim that the 23 LRA does in fact, consider age related cracking of 24 piping, concrete, and so forth.
25 And lastly, if CFUR wanted to challenge NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
46 1 the sufficiency as opposed to the omission of this 2 material, then it also should have reviewed the 3 material cross-referenced on those pages.
4 For example, CFUR's citation to page 418 5 cross-references the PWR vessel internals ANP at 6 Section Bravo.2.3.7, as the program that will manage 7 any future cracking of the cited components.
8 To be clear, CFUR has not advanced a 9 sufficiency argument as to that ANP, or any other ANP 10 in any pleading, or at oral argument today. But we 11 mention this scenario for the sake of completeness, 12 and context.
13 Ultimately, the LRA is chock full of 14 information about the aging management review that 15 CFUR could have, but did not engage with, or dispute 16 in its pleadings.
17 And with that, we're happy to take any 18 questions.
19 CHAIR BOLLWERK: Let me ask you the same 20 question I asked staff, which is, is a practical 21 matter the way that the Aging Management Program 22 treats cracking.
23 Does it make any difference what the 24 source of the cracking is, whether it's seismic, or 25 some other source?
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47 1 MR. LIGHTY: It does not. A monitoring 2 program that would look for cracking, looks for 3 cracking, doesn't distinguish the origin of the 4 cracking when it is, the program has an element for 5 observing cracks.
6 CHAIR BOLLWERK: All right. Any other 7 questions from the Board members?
8 (No audible response.)
9 CHAIR BOLLWERK: All right, Mr. Griggs, 10 then we'll hear from you, please, sir.
11 MR. GRIGGS: Thank you, Your Honor.
12 I would like to respond to just a couple 13 of things the attorneys brought up, and then I have a 14 statement, as well.
15 Mr. Licon mentioned that several 16 references that they had found, that supported the 17 information that we supposedly should have found.
18 But my question is, with regard to the 19 seismic analysis, you know, is this really the seismic 20 analysis that is done in general?
21 Or have they really considered the local 22 area, and some of the concerns that we raised?
23 I mean one of the reasons that we raised 24 this contention was because of the novel situation we 25 have, in and around the Barnett Shale geographical NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
48 1 area.
2 We have a situation that we referred to in 3 our petition, in nearby Lake Lewisville, where several 4 liniments faults were found on an area that the Bureau 5 of Land Management was hoping to put fracking leases.
6 The determination by some experts was, 7 this would not be good because of the injection wells 8 would potentially cause a disaster if this lake were 9 to, the dam were to breach.
10 I mean, there's some serious concerns in 11 the Barnett Shale area, near where Comanche Peak is, 12 that I'm not sure have been fully considered.
13 Even though as counsels say, there were 14 measures taken in their LRA, that dealt with this. My 15 concern is that it may not have been specific enough.
16 I would bring your attention to our 17 petition. I'm not going to read it or go through it, 18 because we think we clearly set out our contention 19 there.
20 But I would just remind you that the 21 United States Geological Service geophysicist, was 22 quoted in our petition.
23 And he basically said that the frequency 24 of Texas quakes, earthquakes that is, have been 25 increasing since 2015.
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49 1 Noting that as an amount of, that with the 2 amount of boiling gas production has increased, 3 there's been a corresponding increase in the rates of 4 waste water injection wells in the area. And, so that 5 goes hand in hand.
6 And obviously it's pretty well documented 7 that injection wells do increase the rapidity of 8 earthquakes. I know I personally have felt several of 9 them, and I live a lot further than 50 miles away.
10 So, our CFUR members and others in the 11 public, are seriously concerned about the 12 seismological issue, seismologic issue, and we 13 seriously believe that the environmental reports 14 should, or this LRA should more detail consider these 15 concerns about seismic activity in the north Texas 16 area.
17 CHAIR BOLLWERK: All right.
18 Well, let me ask you a specific question.
19 So, you said before you had, you didn't have access to 20 this information. Are you still contending you 21 didn't?
22 MR. GRIGGS: Well, we may have had access 23 to some of the information that counsel decided to use 24 and to refute our concern, but I'm still not sure we 25 have the information we need to address the concerns NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
50 1 we have.
2 And maybe it's not there. Maybe counsel 3 Lighty is correct, that you know, we did indicate that 4 there was an omission of the information that, that we 5 were looking for.
6 So, maybe it isn't accessible to us. I 7 appreciate counsel putting forth the numerous 8 references to their LRA, where some of our concerns 9 could be addressed.
10 But I keep, I repeat that this is a novel 11 consideration in the Barnett Shale area. And I just 12 hope that the analysis that has been done, was not a 13 general analysis that is typically done for potential 14 seismic activity.
15 But that the actual seismic history of 16 this area, and particularly the Karst Zone that was 17 referred to in one of our exhibits, was carefully 18 analyzed. I'm not sure that it was.
19 So that's the basis of our concern, and I 20 would appreciate it if the Board would consider our 21 Contention, and allow us to prove this in a hearing 22 that there's some serious concerns that have not been 23 addressed.
24 CHAIR BOLLWERK: All right.
25 Any of the Board members have questions?
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51 1 (No audible response.)
2 CHAIR BOLLWERK: All right, thank you, sir.
3 Appreciate it.
4 MR. GRIGGS: Thank you.
5 CHAIR BOLLWERK: From the staff then on 6 rebuttal, if you have any.
7 MR. LICON: Thank you, Your Honor.
8 We do want to respond just to one thing 9 that counsel for the petitioner has said.
10 So, we do want to clarify that the 11 application itself doesn't evaluate the seismic hazard 12 for the site.
13 But this is because it's part of the 14 current licensing basis for the plant, which would be 15 outside the scope of a license renewal proceeding.
16 And this is discussed in further detail in 17 Section B3 of our pleading.
18 But more generally, in regard to the 19 meaningful access claim the petitioner raised in its 20 reply.
21 We would also like to say, like to 22 recognize that the Commission has long stated for 23 example in the 2001 Turkey Point license renewal 24 proceedings, CLI 01-17 that's cited throughout our 25 brief, that the petitioners have an ironclad NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
52 1 obligation to examine the application and publicly 2 available information, that could serve as a 3 foundation for a contention.
4 So, the relevant information that the 5 applicant could have used to challenge the license 6 renewal application, was publicly available for the 7 petitioner.
8 Be it in the application itself, or cited 9 to within the application, and publicly available on 10 the NRC website, or in ADAMS.
11 But the petitioner has apparently not 12 examined it here and as a result, the petitioner has 13 not pled the portions of contention to, that reference 14 these materials outside the environmental report with 15 the specificity required by NRC regulations.
16 And thus, it can't be admitted.
17 Thank you.
18 CHAIR BOLLWERK: What is the staff's 19 position that this Contention is concluded by, is 20 under Table B1, category 1, issue for severe 21 accidents?
22 MR. LICON: So -- our apologies. I think 23 we seem to be having technical.
24 CHAIR BOLLWERK: That's all right.
25 (Telephonic interference) seismic events NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
53 1 or analyzed in severe accidents?
2 MR. LICON: Can I have a moment to confer 3 with my staff?
4 (Pause.)
5 CHAIR BOLLWERK: Is he still connected?
6 Mr. Licon, are you still connected?
7 (No audible response.)
8 (Pause.)
9 MR. LICON: Am I?
10 CHAIR BOLLWERK: We're not seeing you.
11 MR. LICON: Sorry, can you hear me?
12 CHAIR BOLLWERK: Yes, now, yes, we can.
13 Now we can see you, as well.
14 MR. LICON: Okay.
15 Sorry about that. Despite my laptop being 16 plugged in, apparently it decided now would be the 17 perfect time to crash.
18 Yes, so I believe in response to your 19 question, the, first of all, the petitioner hadn't 20 raised a severe accidents issue in their petition.
21 But to the extent about any of their 22 claims that you know, smaller earthquakes have been 23 increasing, this isn't something that the staff would 24 wait to handle, or review.
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54 1 to look at this. This would be part of the current 2 licensing basis. Yes, it would be looked under the 3 current licensing basis.
4 CHAIR BOLLWERK: All right, thank you.
5 MR. LICON: Thank you.
6 CHAIR BOLLWERK: Mr. Griggs, your turn for 7 rebuttal.
8 MR. GRIGGS: Well, I think that the --
9 (Simultaneous speaking.)
10 CHAIR BOLLWERK: I'm moving on to the next 11 question already. Okay, my fault.
12 MR. GRIGGS: And I believe we're ready for 13 number 3, Your Honor.
14 CHAIR BOLLWERK: I think you're absolutely 15 right. We're ready for Issue 3. I apologize.
16 All right, you will get a chance for 17 rebuttal on this one, though.
18 So question 3 is, in the NRC's ongoing 19 rulemaking to update the 2013 Generic Environmental 20 Impact Statement for Reactor License Renewals, which 21 is referenced in the NRC staff's answer at page 11, 22 note 54, the agency has proposed that climate change 23 impacts as they concern 1) greenhouse gas emissions 24 from continued facility operation, and 2) the 25 environment resource areas, e.g. land use, air NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
55 1 quality, water resources, that may be affected by 2 continued plant operations during license renewal 3 would be considered as Table B1, Category 1, and 4 Category 2 issues, respectively.
5 With the former not subject to 6 adjudicatory challenge absent the submission of a 7 section 2.335 waiver petition.
8 And the reference to the proposed rule is 9 renewing nuclear power plant operating licenses -
10 environmental review at 88 Federal Register 13329, 11 page 13345, which was published on March 3, 2023.
12 So the question that we pose is, given the 13 Commission's previous recognition that licensing 14 boards should not accept as individual license 15 proceedings, contentions that are subject of general 16 rulemaking by the Commission, what is the impact, if 17 any, of this proposed rule on the admissibility of 18 CFUR's Contentions 3 and 4?
19 And the reference for that Commission 20 precedent is the Duke Energy Corporation case, CLI 99-21 11 at 49 NRC 328, page 345, a 1999 case, which in 22 turn, cited two Atomic Safety and Licensing Appeal 23 Board decisions.
24 The Potomac Electric Power case at ALAB-25 218, 8 AEC 79 at page 85, a 1974 case, and the Duke NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
56 1 Power Case at ALAB-813, 22 NRC 59 at page 86, a 1985 2 case.
3 And we have CFUR with 5 minutes; the staff 4 with 5 minutes; Vistra with 5 minutes; and, then 5 CFUR's rebuttal at 5 minutes.
6 And one of the reasons we pose this 7 question frankly, is because this was raised by the 8 staff indicating the potential for impacting 9 Contentions 1 and 3.
10 And it seemed to the Board as well, as 4, 11 but you had no response. And we wanted to obviously 12 give you a chance to say something about it before 13 applying that policy to you. Or to your petition.
14 MR. GRIGGS: Well, thank you, Chairman 15 Bollwerk. That is kind of you to give us this 16 opportunity on this.
17 I think that I'd like to start by actually 18 going to the new GEIS, and dealing with a definition 19 since we're dealing with it, and its effect on the 20 current situation.
21 Of course, I realize you're still in the 22 rulemaking process, but it is imminent so I think it 23 certainly is something that we should consider.
24 In Section 3.12, I believe it's on page 48 25 of the new GEIS, the proposed one, climate change can NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
57 1 have according to the statement, climate change can 2 have additive effects on the environmental resource 3 conditions, that may also be directly impacted by 4 continued operations and refurbishment during the 5 license renewal term.
6 The effects of climate change can vary 7 regionally, and climate change information at the 8 regional and local scale, is necessary to assess 9 trends and the impacts of human environment for a 10 specific location.
11 The impacts of climate change on 12 environmental resources are location specific, and 13 cannot be evaluated generically. This is a Category 14 2 issue. And I, simply a quote from the GEIS.
15 Now, cumulative effects are defined as, 16 cumulative effects or impacts are those effects that 17 result from incremental effects of the proposed 18 licensee renewal action, when added to the effects of 19 other past, present, and reasonably foreseeable 20 actions, regardless of what agency federal or non-21 federal, or person undertakes such actions.
22 The cumulative effects of continued 23 operations and refurbishment associated with license 24 renewal, must be considered on a nuclear plant 25 specific basis.
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58 1 The effects depend on regional resource 2 characteristics, the incremental resource specific 3 effects of license renewal, and the cumulative 4 significance of other factors affecting the 5 environment resource.
6 Again, it says this is a Category 2 issue.
7 So, our contention here is that climate 8 change is a major issue of course, all across the 9 country. But it's especially true in this area.
10 I don't know how much you all have heard 11 in Washington about this exceptional drought we're 12 having in Texas, but it is pretty serious.
13 We have a water shortage. We have 14 concerns about water literally drying up. We have 15 lakes that have dried up here.
16 Obviously, water is critical for the 17 function of a nuclear power plant. And, we've noticed 18 that the GEIS takes climate pretty seriously.
19 But it's missing a couple of things. One, 20 the impacts of climate change on the nuclear plant.
21 I mean, there's concern about what the nuclear plant 22 contributes to climate change, and it should.
23 But there should be certainly, concerns 24 about what the climate is doing to our nuclear 25 facilities.
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59 1 Because the drought is missing, that is a 2 concern. There is a wonderful map and chart that is 3 on page 264 of the GEIS, which shows the Great, the 4 southern Great Plains. This is an important area 5 here.
6 But what is missing is a discussion of the 7 Great Plains climatological situation currently, with 8 regard to the exceptional drought.
9 I won't go into all the concerns we have.
10 It's very clearly set forth in our Contentions 3 and 11 4.
12 But I would just ask this Board to 13 consider under the circumstances, that climate change 14 being as big of an issue as it is with the 15 administration, with the latest guidance for climate 16 change being considered, which of course I realize 17 isn't directly relevant to this proceeding.
18 There should be more attention paid to 19 climate change effects on specific areas of the 20 country, where a license renewal is being considered.
21 And so that's why we raised Contentions 3 22 and 4, because we believe that that is a serious 23 concern.
24 And those members of the public who we 25 represent, asked us to make sure that we raise that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
60 1 issue with you.
2 Thank you.
3 CHAIR BOLLWERK: Let me ask you a specific 4 question about Contention 4.
5 There really are two parts to this 6 analysis potentially. One is the greenhouse gas 7 emissions that are put forth by the plant, and the 8 other then is the question of how the changing climate 9 affects plant operations.
10 And as you pointed out, that is a Category 11 2 issue under Table B1, under the proposed Rule, which 12 would allow in fact, for a discussion. Would require 13 a site-specific discussion.
14 But for greenhouse gas emissions from the 15 facility itself, that is a Category 1 issue. And, it 16 would seem to be precluded if the proposed Rule went 17 through as it's currently drafted. At least without 18 filing a waiver petition under Section 2.335.
19 Is there any reason why the Commission's 20 policy wouldn't apply to that portion of Contention 4, 21 that does suggest that greenhouse gas emissions need 22 to be discussed?
23 MR. GRIGGS: Well, Your Honor, I certainly 24 wouldn't want to preclude a portion of our own 25 argument, but I will tell you this.
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61 1 The concern that we have is the effect of 2 climate change on the plant itself, and its function 3 going forward. Perhaps more so than what the plant 4 would contribute to climate change.
5 There is two sides of the same coin, but 6 if you're asking for our concern, it is certainly more 7 on the effect of climate change, that climate change 8 would potentially have on the future operation of the 9 plant over an additional 20 years of its extension.
10 And a lot of that does have to do with 11 where it is located, and with issues that are very 12 plant-specific to the Comanche Plant operation.
13 CHAIR BOLLWERK: All right, thank you, sir.
14 MR. GRIGGS: Thank you.
15 CHAIR BOLLWERK: All right, let's turn to 16 the staff then. And before the staff gets started, I 17 just wanted to check something with you.
18 I know that the, your statement on page 11 19 and footnote 54, indicated that you didn't feel that 20 the rule change would have any impact on your approach 21 to this, these contentions. Basically, you still felt 22 that they were inadmissible.
23 But that I guess I wanted to raise it in 24 a slightly different context, which is, what would be 25 the impact of this rulemaking, relative to the staff's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
62 1 Supplemental Environmental Impact Statement if in 2 fact, the rule became effective before the application 3 was granted?
4 Specifically, if you look at the NRC 5 website, it indicates that the final rule was supposed 6 to be issued in 2024, in April.
7 And the Comanche Peak license renewal 8 schedule, the final SEIS by the staff, Supplemental 9 Environmental Impact Statement by the staff, is not 10 due till March 2024.
11 And the NRR licensing decision by 12 September of 2024.
13 So, if this rule is in effect by the time 14 you all have to make a decision, does it affect 15 anything you're going to do in terms of the final 16 Environmental Impact Statement?
17 Assuming it reads the same way it reads 18 now?
19 MR. LICON: Thank you, Your Honor.
20 I do need a moment to confer with my 21 technical staff, to see how the schedule may or may 22 not impact it.
23 Once again, thank you.
24 (Pause.)
25 MR. LICON: Thank you, Your Honor.
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63 1 So, the staff plans on evaluating the 2 Supplemental Environmental Impact, issuing the 3 Supplemental Environmental Impact Statement in 4 accordance with the, with the 2013 GEIS.
5 But what's important is that the staff 6 already does analyze these greenhouse gas impacts, but 7 what the new Rule does is really just re-categorize 8 where, or codify this, this evaluation.
9 Was that responsive to your question?
10 CHAIR BOLLWERK: Well, let's get a little 11 more specific.
12 So, why, you took the position I guess, in 13 your, in footnote 54, that the staff, the 2023 14 proposed GEIS Rule, would bar only Contentions 1 and 15 3.
16 Why not Contention 4, at least part of 17 Contention 4 as I discussed with Mr. Griggs?
18 MR. LICON: Okay.
19 So, we, the staff didn't rely on this 20 argument for Contention 1. We really looked at it 21 more for Contention 4 first of all, so we wanted to 22 clear up that understanding today, as well.
23 And we wanted to say that you know, the 24 new Category 1 and 2 issues in the proposed Rule, only 25 really covers the same subject area as one of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
64 1 petitioner's claims in Contention 4, which has to do 2 with the greenhouse gas emissions from plant 3 operations.
4 So.
5 CHAIR BOLLWERK: So, right now there is in 6 the ER, the Section 3.4.4 at page 3-29, there's 7 discussion of greenhouse gas emissions.
8 Which is in fact, consistent with policy 9 when the 2013 GEIS was issued, which basically said we 10 don't have enough information about climate change, 11 but we want applicants to go ahead on a site-by-site 12 basis, and talk about both emissions and about 13 impacts, in terms of climate change on a particular 14 facility. So, all that is in there.
15 But I take it potentially anyway, under 16 Contention 4 if he wants to raise greenhouse gas 17 emissions, would this Rule, proposed Rule, apply to 18 preclude that under the Commission policies, and 19 describe?
20 MR. LICON: Yes, Your Honor.
21 Okay, so it looks like in our pleading 22 where we cited this Rule, that looks like it was 23 actually an editing error and Contention 4 was added 24 after, after the amended petition where put forth.
25 So, we did mean for that to apply to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
65 1 Contention 4, as well.
2 CHAIR BOLLWERK: Okay.
3 All right, so let me then ask you a 4 procedural question.
5 So, let's assume just as a thought issue, 6 that CFUR actually wanted to raise an emissions 7 question about greenhouse gas emissions.
8 Which under the proposed Rule is Category 9 1 now, and requires a waiver petition. Now, the Rule 10 was issued after CFUR filed its petition.
11 So in theory, they could have amended 12 their petition. What if they'd come in and filed a 13 waiver petition as part of their Contention on a 14 greenhouse gas emissions?
15 Would that be appropriate? Can they ask 16 for a waiver of a Rule that isn't in effect? And if 17 that's the case, how does this whole Commission policy 18 get carried forward?
19 What are we dealing with here?
20 MR. LICON: So, for that question, I would 21 refer, and I apologize but I would like to refer to a 22 Board decision that, that we haven't cited. And I 23 have the citation for you.
24 It's LVP-82-1A. And, it looks like the 25 Board considers certain factors when deciding whether NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
66 1 to, to apply this policy.
2 And one of those is whether the issue is 3 something that is you know, more specific to the plant 4 at issue. Or if it is more generally applicable.
5 So in that case, it had to do, the 6 specific issue related to whether Perry Nuclear Power 7 Plant needed to use, or should use a certain automated 8 system.
9 And, the Board found that that issue was 10 something that was rather specific to that plant.
11 But with the greenhouse gas emissions 12 issue, that is, and since the staff even, or the 13 Commission in the proposed Rule finds that as a 14 Category 1 issue even, if that's really something 15 that's more generally applicable.
16 So, the policy kind of leans towards 17 precluding it because it's a more general issue.
18 CHAIR BOLLWERK: But again procedurally, 19 how does the petitioner raise this? Can you file a 20 waiver for a Rule that isn't in place?
21 Or when do you file your waiver? Do you 22 have to wait till the Rule comes in and file a late 23 file petition (telephonic interference)?
24 MR. LICON: Procedurally --
25 CHAIR BOLLWERK: And, I guess we don't use NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
67 1 the word late file anymore. But nonetheless, a 2 petition past the deadline for filing an initial 3 petition.
4 MR. LICON: So, I believe that the 2.335 5 waiver process only allows challenges to a current 6 Rule. So the, so I am not sure, I am not certain 7 about the answer to your question.
8 But we can certainly look at this question 9 for you, as well, and amend this.
10 CHAIR BOLLWERK: I mean, and more broadly 11 and maybe Judge Abreu and I have talked about this.
12 I mean, this policy was put in place back when the 13 AEC, well, the NRC was very young, just after, just 14 before the AEC, it took over from the AEC.
15 There weren't a lot of rules out there in 16 some instances. So obviously, if there wasn't a rule 17 of any kind to cover something, maybe it was a good 18 idea that the adjudicatory process step back and take 19 a pause.
20 But this, that certainly isn't the case in 21 this instance. There's a Rule that exists, and to 22 simply say we're going to stop now because there's a 23 new proposed Rule, does that really, is that carrying 24 forth the policy if the Commission was really trying 25 to implement in the earlier cases?
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68 1 MR. LICON: Well, Your Honor, we're 2 certainly not, not suggesting that this is an 3 unlimited principle.
4 But if the petitioner wishes to challenge 5 something that is the subject of the, of something 6 that is going to be considered in rulemaking.
7 We're currently in rulemaking. The proper 8 procedure to challenge that, or participate, is to 9 participate in that rulemaking. Not an individual 10 adjudication.
11 CHAIR BOLLWERK: All right, thank you.
12 I've sort of taken up all your time. Is 13 there anything that you want to, want to say that we 14 haven't covered?
15 MR. LICON: No, Your Honor, thank you.
16 CHAIR BOLLWERK: All right.
17 Judge Abreu has a question, I'm sorry. Go 18 ahead.
19 JUDGE ABREU: This is Judge Abreu.
20 Just to step back to something you said a 21 little bit earlier. If I heard you correctly, you 22 said that even though there are these issues that were 23 maybe covered differently in the new GEIS, all of the 24 topics are actually covered in the old GEIS, but just 25 in different places.
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69 1 And so there's not information that hasn't 2 been dealt with under the old GEIS.
3 MR. LICON: Yes, Your Honor, I believe I 4 misspoke there.
5 So, not, there are certain things that are 6 not. So, I think I have made this statement but I, 7 and I corrected myself to say codified, rather than 8 considered.
9 So, I didn't mean to say that something is 10 considered in the, in the old GEIS.
11 JUDGE ABREU: Well, perhaps I misspoke. In 12 the sense of it's either covered in the GEIS, or 13 you've dealt with it within the application, that 14 there are no topics sort of left out there 15 unconsidered.
16 MR. LICON: Right.
17 And the point that I, that's correct, Your 18 Honor. And that the point I wanted to just make here, 19 is that this policy should really just apply to the 20 small part of Contention 4 about, about greenhouse gas 21 emissions.
22 JUDGE ABREU: Thank you.
23 MR. LICON: Thank you.
24 CHAIR BOLLWERK: Further? Judge Arnold?
25 No?
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70 1 All right, then let's move on to counsel 2 for Vistra.
3 Thank you.
4 MR. LIGHTY: Thank you, Your Honor.
5 As noted in our answer, Contentions 3 and 6 4 are inadmissible on multiple grounds, including 7 because the LRA discusses both GHG emissions, and 8 climate change to the full extent required by current 9 regulations. Consistent with current guidance.
10 And, CFUR does not acknowledge those 11 current regulations or guidance. It does not 12 acknowledge the relevant LRA discussions, and it 13 certainly does not compare and contrast the two, which 14 is the bare minimum for an admissible contention.
15 And, the contentions should be rejected on 16 those grounds alone. So, adjudication of the 17 contentions does not necessarily require the Board to 18 resolve the question about the effect of the proposed 19 rulemaking on this proceeding.
20 That said, we do agree that the pending 21 rulemaking potentially provides yet another ground to 22 reject CFUR's claims regarding GHG emissions, because 23 the NRC is undertaking a rulemaking to address that 24 very issue in a particular way, on a generic basis, as 25 a Category 1 issue.
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71 1 So, CFUR's claims, particularly those in 2 Contention 4, purporting to challenge the ER's 3 discussion of greenhouse gasses, are impermissible and 4 beyond the scope of this proceeding for the reasons 5 cited in the Oconee case.
6 Indeed, the operative facts here are 7 essentially identical to the Oconee case. In both 8 proceedings, the Commission initiated a rulemaking to 9 establish a new Category 1 issue.
10 The rulemaking was, and is expected, to be 11 completed prior the completion of the license renewal 12 proceeding.
13 There have been no delays to date, in the 14 rulemaking process. And, the proposed Rule already 15 has been published.
16 In those circumstances, the Commission in 17 the Oconee order said quote, if petitioners are 18 dissatisfied with our generic approach to the problem, 19 their remedy lies in the rulemaking process, not in 20 this adjudication, end quote.
21 In some, although the pending rulemaking 22 provides a basis to reject CFUR's GHG claims, we 23 continue to believe that a decision rejecting 24 Contentions 3 and 4 would be more robust if the Board 25 also acknowledges that neither contention raises a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
72 1 genuine dispute with the LRA, because it doesn't 2 engage with the current regulations, or show any 3 deficiency thereunder.
4 I did want to circle back briefly to Judge 5 Abreu's question and note our agreement with staff 6 counsel, that there are no topics uncovered related to 7 greenhouse gas emissions, or climate change, from the 8 old GEIS to the new GEIS.
9 These are topics that are considered under 10 either the current Rule, or the proposed future Rule.
11 It's just a bit of a reorganization of the content and 12 a determination that some of that content will be, 13 will be addressed as a Category 1 generic issue, 14 rather than addressed on a plant specific basis.
15 And I know that earlier, counsel for CFUR 16 noted that their primary concern here relates to water 17 availability, and the effects that climate change may 18 have on that.
19 And as noted in our answer pleading, ER 20 Section 4.12.4.3, addresses that issue squarely. CFUR 21 doesn't acknowledge it; doesn't dispute it; and, 22 doesn't challenge anything in it.
23 And so for all of those reasons, we think 24 both contentions should be rejected regardless of how 25 or whether, the Board resolves this question regarding NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
73 1 the generic rulemaking.
2 CHAIR BOLLWERK: All right, thank you.
3 Do you have any thoughts on the procedural 4 question I raised, which is how in the world, if CFUR 5 did want to contest the greenhouse gas emissions, it 6 would do so given the Rule isn't yet in effect?
7 MR. LIGHTY: Yes, Your Honor, I think if 8 you look to the Oconee case, the language that's cited 9 on page 345, is that the licensing board should not 10 accept an individual licensing proceedings contentions 11 which are, or are about to become, the subject of a 12 general rulemaking by the Commission.
13 So, it doesn't appear there's a bright 14 line rule that requires a rulemaking to actually be in 15 motion, to be proposed.
16 In this case, the Commission issued a 17 staff requirements memorandum directing the staff to 18 update the GEIS a year ago. I believe it was last 19 April.
20 And so, petitioners have been on notice of 21 the fact that this is about to become the subject of 22 a rulemaking for some time now.
23 And, I do understand that the proposed 24 Rule was published on March 3 of this year versus the 25 March 1 filing of the amended petition.
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74 1 But I would still aver that it falls 2 within the ambit of about to become the subject of a 3 rulemaking.
4 CHAIR BOLLWERK: All right, thank you.
5 Any other questions from the Board 6 members?
7 JUDGE ABREU: No.
8 CHAIR BOLLWERK: All right, let's then 9 allow CFUR to have their rebuttal time.
10 MR. GRIGGS: Thank you, Your Honor.
11 I might start by addressing the issue 12 about participating in the process.
13 There was a hearing in I believe it was 14 West Lake, Texas, in the Fort Worth area, it seemed 15 like just a few weeks ago, sometime in March on this 16 proposal.
17 And, many of our members actually went and 18 attended. So, we have been engaged in that discussion 19 on the new GEIS.
20 But I would just thank the Board for 21 asking these questions. I appreciate your concern 22 about process.
23 I'm a former federal government attorney 24 myself with the FTC, and am quite familiar with the 25 bureaucracy.
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75 1 And, worked with ALJs for many years. I 2 really appreciate your interest in the NRC getting 3 this right.
4 And so, I would encourage you to think 5 about this with regard to the greenhouse gasses. And 6 certainly CFUR would be amenable to going with a 7 procedural fix for this problem for our case, given 8 the timing of when we filed, and the issue with the 9 new GEIS coming.
10 If we were to be allowed some sort of an 11 exception to file the waiver, we might consider doing 12 that.
13 But what we would certainly like to do, is 14 to not have our chance on this contention end today, 15 for a number of reasons.
16 We have tried to make our case with both 17 Contentions 3 and 4, and what we also put in our 18 reply.
19 And, I would just sort of end on the case 20 law. Thank goodness we have the NRC case laws to fall 21 back on, that doesn't completely eliminate a 22 petitioner's opportunity for all of the reasons that 23 there, the contentions are thrown out.
24 At least we have case law that shows that 25 the contention rules require only that contentions NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
76 1 have at least some minimal factual and legal 2 foundation for support, which I certainly think we 3 have provided.
4 And I certainly, and sometimes feel like 5 there is a fortress to deny intervention, but it 6 sounds like this Board is very concerned about 7 fairness here.
8 And, I would encourage you to consider an 9 option that might allow this contention to go forward.
10 Thank you, Your Honor.
11 CHAIR BOLLWERK: All right, thank you very 12 much.
13 Any questions further?
14 JUDGE ABREU: No.
15 JUDGE ARNOLD: No.
16 CHAIR BOLLWERK: All right, I think with 17 that we're going to conclude this oral argument, 18 regarding the admissibility of petitioner CFUR's four 19 Contentions.
20 On behalf of Judges Abreu and Arnold, I'd 21 like to express our appreciation for, to counsel for 22 the petitioner CFUR, the applicant Vistra, and the NRC 23 staff, for their obvious efforts in preparing for, and 24 participating in this conference.
25 You can be assured that your filings and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
77 1 the arguments will be given serious consideration by 2 the Board.
3 And we will seek to render a decision 4 regarding the efficacy of CFUR's hearing petition, 5 consistent with 10 CFR, Section 2.309J with the 45-day 6 period for rendering a ruling, beginning with the 7 conclusion of this initial pre-hearing conference.
8 Additionally, the Board would like to 9 express its appreciation to those who have provided 10 such superb administrative support for today's 11 conference, including our court reporter Sam Wojack, 12 and a number of members of the licensing board panel's 13 administrative staff.
14 In that regard, our thanks to panel 15 administrative assistant Sara Culler, who among other 16 things took care of getting the NRC website notice 17 posted, and to panel law clerks Noel Johnson, who 18 served as our timekeeper today; to Emily Newman, and 19 Allison Wood, who served as the Web, the Webex, excuse 20 me, master of ceremonies for today's conference.
21 And speaking of Webex, of course we 22 couldn't have gotten together today at all, without 23 the usual excellent IT support from Andy Welkie, who 24 seems able to overcome any IT challenge. I mean, any 25 IT challenge, with a cool head and a steady mouse.
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78 1 Along with Joe Deucher, as his backup for 2 the virtual conference.
3 So Judge Arnold, anything you would like 4 to say further?
5 JUDGE ARNOLD: No.
6 CHAIR BOLLWERK: Judge Abreu?
7 (No audible response.)
8 CHAIR BOLLWERK: All right, with that then 9 and with the reminder to participants' counsel to stay 10 on the Webex conference after we conclude to answer 11 any questions our court reporter might have, this 12 conference stands adjourned.
13 And again, thank you for your time and 14 effort.
15 (Whereupon, the above-entitled matter went 16 off the record at 3:54 p.m.)
17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com