ML23356A158

Energy Harbors Answer Opposing the Petition for Leave to Intervene and Request for Hearing of Ohio Nuclear-Free Network and Beyond Nuclear

ML23356A158
Person / Time
Site:	Perry
Issue date:	12/22/2023
From:	Bassette P, Giannantonio R, Lighty R, Matthews T Energy Harbor Corp, Energy Harbor Nuclear Corp, Morgan, Morgan, Lewis & Bockius, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
ASLBP 24-982-01-LR-BD01, RAS 56896, 50-440-LR
Download: ML23356A158 (0)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

In the Matter of:

Docket No. 50-440-LR ENERGY HARBOR NUCLEAR CORP and ENERGY HARBOR NUCLEAR GENERATION LLC December 22, 2023 (Perry Nuclear Power Plant, Unit No. 1)

ENERGY HARBORS ANSWER OPPOSING THE PETITION FOR LEAVE TO INTERVENE AND REQUEST FOR HEARING OF OHIO NUCLEAR-FREE NETWORK AND BEYOND NUCLEAR

RYAN K. LIGHTY, Esq.

TIMOTHY P. MATTHEWS, Esq.

PAUL M. BESSETTE, Esq.

MORGAN, LEWIS & BOCKIUS LLP

RICK GIANNANTONIO, Esq.

ENERGY HARBOR CORP.

Counsel for Energy Harbor Nuclear Corp.

TABLE OF CONTENTS I. INTRODUCTION............................................................................................................. 1 II. BACKGROUND............................................................................................................... 2 A. License Renewal Reviews..................................................................................... 2

1. Safety Review............................................................................................ 2

2. Environmental Review............................................................................... 3 B. The LRA and Procedural History.......................................................................... 4 C. Legal Standards for Hearing Requests & Contention Admissibility..................... 5 III. THE PETITION SHOULD BE DENIED BECAUSE THE PETITIONERS FAILED TO PROPOSE AN ADMISSIBLE CONTENTION.......................................... 8 A. Proposed Contention 1 (SAMA) Is Inadmissible.................................................. 8

1. Petitioners Disregard, Rather Than Dispute, The Relevant Discussion in the ER and Therefore Fail to Demonstrate a Genuine Dispute....................................................................................................... 9

2. Petitioners General Commentary on Regional Geology and Selective Historical Documents Provides Inadequate Support................ 11

3. In Addition to Supplying No Basis for an Admissible Contention, Petitioners Claims Are Factually Inaccurate and Demonstrably Untrue...................................................................................................... 12 B. Proposed Contention 2 (Purchased Power Alternative) Is Inadmissible............. 14

1. Petitioners Criticisms of the ERs Discussion of the Purchased Power Alternative Fail to Support an Admissible Contention............... 15

2. Petitioners Criticisms of the ERs Purpose and Need Statement Fail to Raise a Genuine Dispute............................................................... 20 C. Proposed Contention 3 (Tritium) Is Inadmissible............................................ 23

1. Petitioners Fail to Raise a Genuine Dispute with the ERs Consideration of Historical Effluents...................................................... 24

2. The Allegedly Omitted Analyses Are In Fact Presented in the Application, Whereas Petitioners Fail to Acknowledge or Dispute Them........................................................................................................ 25 IV. CONCLUSI ON................................................................................................................ 29

ii I. INTRODUCTION

Pursuant to 10 C.F.R. § 2.309(i)(1), Energy Harbor Nuclear Corp. (Energy Harbor)

submits this Answer opposing the Petition for Leave to Intervene and Hearing Request

(Petition) filed by Ohio Nuclear-Free Network and Beyond Nuclear (collectively,

Petitioners) on November 28, 2023.1 Petitioners seek to intervene in the above-captioned

proceeding and request a hearing to challenge the license renewal application (LRA) submitted

by Energy Harbor (operator) on its own behalf and for Energy Harbor Nuclear Generation LLC

(owner)2 to the U.S. Nuclear Regulatory Commission (NRC) on July 3, 2023, requesting

renewal of the facility operating license for Perry Nuclear Power Plant, Unit 1 (PNPP).3 As

explained below, the Petition should be denied because the Petitioners have not submitted an

admissible contention, as required by 10 C.F.R. § 2.309(a).

Petitioners proffer three proposed contentions. But, as detailed in Section III below, none

of Petitioners proposed contentions is admissible. First, Petitioners claim the Severe Accident

Mitigation Analysis (SAMA) is inadequate. However, those claims are inadmissible because

nothing in the contention even acknowledges, much less disputes, the relevant analysis. Second,

Petitioners attack the Environmental Reports (ER s) consideration of purchased power as an

alternative to the proposed action, primarily because it fails to present a need for power

analysis. But that challenge also is inadmissi ble because NRC regulations expressly state that

need for power analyses are not required in li cense renewal proceedings. Finally, Petitioners

1 Petition of Ohio Nuclear-Free Network and Beyond Nuclear for Leave to Intervene in Perry Nuclear Power Plant License Extension Proceeding, and Request for a Hearing (Nov. 28, 2023) (ML23332A785) (Petition).

2 Petitioners claim that Energy Harbor is doing business as Energy Harbor Nuclear Generation LLC. Id.

at 1, 10. But that is incorrect. Energy Harbor Nuclear Corp. and Energy Harbor Nuclear Generation LLC are separate legal entities. The former is the licensed operator of PNPP, whereas the latter is the licensed owner.

3 License Renewal Application for the Perry Nuclear Power Plant (July 3, 2023) (ML23184A081) (LRA).

argue that the ER and LRA allegedly fail to consider certain environmental and safety

information related to tritium rel eases. But, as noted below, the allegedly omitted information is

in fact presented in the applicationPetitioners simply disregard it. Ultimately, none of the

three contentions satisfies all six admissibility criteria in 10 C.F.R. § 2.309(f)(1). Accordingly,

pursuant to 10 C.F.R. § 2.309(a), the Petition should be denied.4

II. BACKGROUND

A. License Renewal Reviews

The NRCs review of license renewal applications for nuclear power reactors consists of

both a safety review and an environmental review, which are primarily governed by the

requirements of 10 C.F.R. Parts 54 and 51, respectively.

1. Safety Review

The objective of the NRCs license renewal safety review is to ensure that the licensee

can successfully manage the detrimental effects of aging.5 Accordingly, the license renewal

regulations in 10 C.F.R. Part 54 focus on whether the licensee can manage the effects of aging on

certain long-lived, passive components that are important to safety.6 Those Aging Management

Programs (AMPs) are at the core of the NRC s license renewal safety framework. The NRC

has published guidance (known as the GALL Report) that analyzes aging management issues

4 Energy Harbor does not oppose the Petitioners assertion of administrative standing on the basis of the proximity presumption. However, because the Petitioners have not proffered an admissible contention, the question of whether the Petitioners has satisfied the standing requirements in 10 C.F.R. § 2.309(d) is immaterial to adjudication of the Petitioners Petition. See 10 C.F.R. § 2.309(a); DTE Elec. Co. (Fermi 2),

CLI-21-5, 93 NRC 131, 143 (2021).

5 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), CLI-15-6, 81 NRC 340, 347 (2015).

6 Id.; see also 10 C.F.R. §§ 54.21, 54.29(a).

2 generically and contains AMPs that may be used by applicants to satisfy aging management

requirements in Part 54.7

Importantly, [t]he license renewal [safety] review is not intended to duplicate the NRCs

ongoing oversight of operating reactors.8 In particular, a plants Current Licensing Basis

(CLB)9 is beyond the limited scope of license renewal and cannot be challenged in a license

renewal adjudicatory proceeding.10 The Commission determined that re-assessments of CLB

safety issues at the license renewal st age would be unnecessary and wasteful11 because those

issues are effectively addressed and maintained by ongoing agency oversight, review, and

enforcement.12

2. Environmental Review

The NRCs license renewal environmental regulations in Part 51 are based, in large part,

on the Generic Environmental Impact Statement for License Renewal of Nuclear Plants

(GEIS), which summarizes the findings of a systematic inquiry (accomplished through notice

and comment rulemaking) into the potential en vironmental consequences of license renewal.13

Based on these analyses, the GEIS delineates two types of environmental issues:

7 See NUREG-1801, Rev. 2, Generic Aging Lessons Learned (GALL) Report (Dec. 2010) (ML103490041)

(GALL Report).

8 Indian Point, CLI-15-6, 81 NRC at 347.

9 See 10 C.F.R. § 54.3 (defining the CLB).

10 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 7-9 (2001).

11 Id. at 7.

12 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-04-36, 60 NRC 631, 638 (2004) (citation omitted).

13 See NUREG-1437, Rev. 0, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (May 1996) (Vol. 1, ML040690705); NUREG-1437, Rev. 1, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (June 2013) (Vol. 1, ML13106A241). As used in this brief, GEIS refers to Rev. 1 unless otherwise noted. The NRC is currently working on Rev. 2 of the GEIS and corresponding changes to 10 C.F.R. Part 51, but that effort is only at the proposed rule stage and imposes no requirements here.

3

• Generic Category 1 issues, for which the NRC made generic conclusions applicable to all exis ting nuclear power plants; and

• Plant-Specific Category 2 issues, for which site-specific analyses are required for each individual license renewal proceeding.

For Category 1 issues, the GEIS assigns impact levels (SMALL, MODERATE, or LARGE),

which are codified in 10 C.F.R. Part 51, Subpart A, Appendix B. Because those Category 1

findings are codified, they are not subject to challenge in individual adjudicatory proceedings.14

As part of an initial license renewal application, 15 applicants must submit an environmental

report considering all Category 2 issues on a plant-specific basis.16 Applicants need not

replicate the GEIS analyses of Category 1 issues in an ER.17 Ultimately, the NRC Staff draws

upon the applicants ER, the GEIS, and other sources of information to produce a plant-specific

Supplemental Environmental Impact Statement (SEIS) for each license renewal application.18

B. The LRA and Procedural History

Energy Harbor submitted the PNPP LRA, including the required ER attached thereto as

Appendix E, to the NRC on July 3, 2023.19 The LRA has been publicly available on the NRCs

Agencywide Documents Access and Management System (ADAMS) since July 12, 2023.20

14 See 10 C.F.R. § 2.335 (prohibiting challenges to NRC regulations absent a waiver from the Commission);

Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station), CLI-07-3, 65 NRC 13, 17-18 (2007)

(Because the generic environmental analysis was incorporated into a regulation, the conclusions of that analysis may not be challenged in litigation.).

15 The Commissions recent decision that the GEIS and codified analyses in 10 C.F.R. Part 51, Subpart A, Appendix B do not apply to subsequent license renewals, see Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-22-02, 95 NRC 26 (2022), does not affect this proceeding, which pertains to an initial license renewal.

16 See 10 C.F.R. §§ 51.41, 51.45, 51.53(c)(3)(ii).

17 See id. § 51.53(c)(3)(i). Licensees may incorporate by reference those analyses and the codified impact findings from Appendix B. See id. § 51.53(a).

18 See generally GEIS at 1-16 to 1-19.

19 See LRA, App. E (ER).

20 See Web-based ADAMS, https://adams.nrc.gov/wba/ (Date Added property for Accession Number ML23184A081).

4 The NRC then published, in the Federal Register, a notice of receipt of the LRA on August 9,

2023,21 and a separate notice on September 29, 2023, offering an opportunity for members of the

public to file hearing requests and petitions to intervene in the above-captioned proceeding by

November 28, 2023.22 Petitioners filed their Petition on November 28, 2023. Energy Harbor

hereby files its timely answer to the Petition.

C. Legal Standards for Hearing Requests & Contention Admissibility

Pursuant to 10 C.F.R. § 2.309(a)(1), a hearing request and petition to intervene may be

granted only if the presiding officer determines that the petitioner has demonstrated standing and

has proposed at least one admissible contention that meets all six of the threshold admissibility

criteria in 10 C.F.R. § 2.309(f)(1).23 Failure to satisfy any one of these six admissibility criteria

requires that a proposed contention be rejected.24 These criteria are strict by design.25 The

rules were toughened... in 1989 because in prior years licensing boards had admitted and

litigated numerous contentions that appeared to be based on little more than speculation.26 The

21 Energy Harbor Corp.; Energy Harbor Generation LLC.; Energy Harbor Nuclear Corp.; Perry Nuclear Power Plant, Unit 1, 88 Fed. Reg. 53,933 (Aug. 9, 2023).

22 Energy Harbor Corp.; Energy Harbor Generation LLC; Energy Harbor Nuclear Corp.; Perry Nuclear Power Plant, Unit 1, 88 Fed. Reg. 67,373 (Sept. 29, 2023).

23 A proposed contention must: (i) pr ovide a specific statement of the issue of law or fact to be raised or controverted; (ii) provide a brief explanation of the basis for the contention; (iii) demonstrate that the issue raised is within the scope of the proceeding; (iv) demonstrate that the issue raised is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) provide a concise statement of the alleged facts or expert opinions, including references to the specific sources and documents that support the petitioners position and upon which the petitioner intends to rely; and (vi) provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. 10 C.F.R.

§ 2.309(f)(1).

24 See id.; Changes to Adjudicatory Process; Final Rule, 69 Fed. Reg. 2,182, 2,221 (Jan. 14, 2004); see also Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999).

25 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001).

26 Id. (quoting Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3), CLI-99-11, 49 NRC 328, 334 (1999)).

5 petitioner alone bears the affirmative burden to satisfy these criteria. 27 Thus, where a petition

fails to do so on its face, the Board may not cure a deficiency or fill a gap by supplying the

information that is lacking or making fact ual assumptions that favor the petitioner. 28 Key aspects

of the six admissibility criteria are summarized below.

Basis and Specificity: In simple terms, a contention must articulate the specific legal or

regulatory requirement that it claims to be unsatisfied, and then it also must explain the basis for

that claim. That is because the parties are entitled to be told at the outset, with clarity and

precision, what arguments are being advanced and what relief is being sought,29 and must set

forth their contentions with particularity.30

Scope: The subject matter of all contentions is limited to the scope of the proceeding

delineated by the Commission in its hearing notice and referral order delegating to the Licensing

Board the authority to conduct the proceeding.31 Challenges to NRC rules are prohibited as

outside the scope of a proceeding because, abse nt a waiver, no rule or regulation of the

Commissionis subject to attackin any adjudicatory proceeding.32 This includes challenges

27 See Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-15-23, 82 NRC 321, 325, 329 (2015)

(stating [t]he proponent of a contention is responsible for formulating the contention and providing the necessary support to satisfy the contention admissibility requirements and it is Petitioners responsibility, not the Boards, to formulate contentions and to provide the necessary information to satisfy the basis requirement for admission) (citation omitted); see also DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 2), CLI-15-18, 82 NRC 135, 149 (2015) (the Board may not substitute its own support for a contention or make arguments for the litigants that were never made by the litigants themselves.).

28 See Fermi, CLI-15-18, 82 NRC at 149.

29 Kansas Gas & Elec. Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-279, 1 NRC 559, 576 (1975)

(emphasis added).

30 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-15, 71 NRC 479, 482 (2010)

(citation omitted).

31 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-00-23, 52 NRC 327, 329 (2000); Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-825, 22 NRC 785, 790 (1985).

32 10 C.F.R. § 2.335(a).

6 to the generic environmental analyses and conclusions codified in 10 C.F.R. Part 51, Subpart A,

Appendix B.33

Materiality: A material issue is one that would make a difference in the outcome of

the licensing proceeding.34 The petitioner must demonstrate that the application deficiency

asserted in the contention would impact the grant or denial of the pending application.35

Adequate Support: Presiding officers must scrutinize documents and expert opinions to

confirm that they support a proposed contention.36 A petitioners imprecise reading of a

document cannot support a litigable contention.37 Likewise, a document or expert opinion that

merely states a conclusion, without providing a reasoned basis or explanation for that

conclusion, is insufficient to satisfy this criterion.38 Furthermore, bare assertions and

speculation, even by experts, are incapable of providing the requisite support for a proposed

contention.39

Genuine Dispute: The Commission has stated that petitioners must read the pertinent

portions of the license application... state the applicants position and the petitioners opposing

view, and explain why the petitioner disagrees with the applicant.40 In other words, a

33 Vt. Yankee, CLI-07-3, 65 NRC at 17-18.

34 Oconee, CLI-99-11, 49 NRC at 333-34 (citation omitted).

35 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), LBP-08-13, 68 NRC 43, 62 (2008) (citation omitted).

36 See Vt. Yankee Nuclear Power Corp. (Vt. Yankee Nuclear Power Station), ALAB-919, 30 NRC 29, 48 (1989),

vacated in part on other grounds and remanded, CLI-90-4, 31 NRC 333 (1990).

37 See Ga. Inst. of Tech. (Ga. Tech Research Reactor, Atlanta, Ga.), LBP-95-6, 41 NRC 281, 300 (1995).

38 See USEC, Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451, 472 (2006).

39 Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203 (2003) (quoting GPU Nuclear, Inc.

(Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 208 (2000)).

40 Rules of Practice for Domestic Licensing Proceedings; Procedural Changes in the Hearing Process; Final Rule, 54 Fed. Reg. 33,168, 33,170 (Aug. 11, 1989) (Procedural Changes); see also Millstone, CLI-01-24, 54 NRC at 358.

7 contention of sufficiency that does not directly controvert specific text within the application is

subject to dismissal.41 And for contentions of omission, the petitioner must demonstrate two

things: (a) that the applicant had a legal obligation to provide the allegedly-omitted information,

and (b) that such information is, in fact, absent from the application.42

III. THE PETITION SHOULD BE DENIED BECAUSE THE PETITIONERS FAILED TO PROPOSE AN ADMISSIBLE CONTENTION

Petitioners propose three contentions. But, as explained below, none of those proposed

contentions satisfy the admissibility criteria in 10 C.F.R. § 2.309(f). Accordingly, the Petition

should be denied.

A. Proposed Contention 1 (SAMA) Is Inadmissible

In Proposed Contention 1, Petitioners allege that the SAMA analysis in the ER is

inadequate.43 However, across the entirety of the discussion of Proposed Contention 1,

Petitioners do not challengeor even acknowledgea single word of the comprehensive

SAMA analysis in the LRA apart from its ultimate conclusion. Petitioners simply pronounce

that conclusion as incorrect, without benefit of further explanation. As explained below, far

more is required to demonstrate a genuine disput e. And because Petitioners have not done more

here, Proposed Contention 1 is inadmissible.

41 See S.C. Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 & 3), CLI-10-1, 71 NRC 1, 21-22 (2010); Tex. Utils. Elec. Co. (Comanche Peak Steam Electric Station, Unit 2), LBP-92-37, 36 NRC 370, 384 (1992), vacated as moot, CLI-93-10, 37 NRC 192 (1993).

42 See Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), LBP-04-15, 60 NRC 81, 95 (2004) (explaining that if the allegedly missing information is indeed in the license application, then the contention does not raise a genuine dispute).

43 Petition at 12.

8

1. Petitioners Disregard, Rather Than Dispute, The Relevant Discussion in the ER and Therefore Fail to Demonstrate a Genuine Dispute

Summarized in Section 4.15 of the ER, Energy Harbor used the longstanding, NRC-

approved guidance in NEI 05-01 to perform its SAMA analysis.44 Consistent with that guidance,

Energy Harbor performed a Phase I screening of SAMA candidates based on defined criteria.45

SAMA candidates that were not screened-out in Phase I were subjected to a rigorous assessment

in Phase II using a sophisticated cost estimate and risk model involving a Level 3 probabilistic

risk assessment (PRA).46 Notably, the PNPP PRA includes a detailed seismic hazard

assessment.47

Furthermore, Energy Harbors PRA model incorporated updated information regarding

population density within 50 miles of the PNPP site, economic data reflecting recent cost data,

meteorological data, and plant emergency response information as inputs to the MELCOR

Accident Consequence Code System 2 (MAACS2), based on nuclide release information that

reflects the current fission product inventory and frequency information for plant source term

categories.48 In all, Energy Harbor considered a total of 157 SAMAs,49 evaluated 32 source term

categories (which were grouped into eleven release categories), and executed 11 additional

WinMACCS sensitivity cases.50 A detailed assessment reflecting the disposition of each SAMA

44 ER at 4-44.

45 Id.

46 Id. at 4-45.

47 Id. at 4-48. The PNPP PRA core damage frequency (CDF), large early release frequency (LERF), and population dose for the seismic hazard are detailed in ER Table 4.15-3. Id. at 4-50.

48 Id. at 4-45.

49 Id. at 4-46.

50 Id., App. G at G-49 to G-50.

9 candidate, and further details regarding the various assumptions, models, and inputs used in the

assessment, is documented in Appendix G to the ER.

Remarkably, notwithstanding the extensive and detailed technical evaluation provided

across more than 100 pages of the ER, Petitioners do not engage with or attempt to dispute the

analysis or disposition of even a single SAMA candidate. Instead of engaging with the SAMA

analyses, Petitioners merely attack the conclusion (i.e., that all SAMA candidates ultimately

were screened out).51 Petitioners implywithout explanationthat this conclusion per se shows

that the SAMA analysis was inadequate. However, this conclusory assertion falls far short of

demonstrating a genuine dispute with the application. The codified admissibility criteria require

a petitioner to:

provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. This information must include references to specific portions of the application... that the petitioner disputes and the supporting reasons for each dispute....52

Thus, on its face, Proposed Contention 1 does not satisfy this criterion because it fails to

mention, reference, summarize, analyze, or challenge any specific portion of the SAMA

analysis or offer a single supporting reason that some unspecified portion of that disregarded

analysis is deficient in any way. The Commission has long held that merely stat[ing] a

conclusion (e.g., the application is deficient, inadequate, or wrong) without providing a

reasoned basis or explanation for that conclusion is inadequate for an admissible contention. 53

Accordingly, Proposed Contention 1 is inadmissible for failure to satisfy 10 C.F.R. §

2.309(f)(1)(vi).

51 Petition at 21.

52 10 C.F.R. § 2.309(f)(1)(vi) (emphasis added).

53 See USEC, Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451, 472 (2006) (citation omitted).

10

2. Petitioners General Commentary on Regional Geology and Selective Historical Documents Provides Inadequate Support

As alleged support for Proposed Contention 1, Petitioners offer only a report from a

geologist, Julie Weatherington-Rice, Ph.D. However, that report contains no discussion

whatsoeverof the SAMA analysis that Petitioners purport to challenge. Dr. Weatherington-

Rice does not claim to have reviewed the SAMA analyses (or any other portion of the LRA).54

And Petitioners otherwise make no attempt to connect any particular claim in that report to any

specific alleged deficiency in the SAMA analyses. The Commissions admissibility

requirements demand far more to supply adequate support for a contention.

Dr. Weatherington-Rice merely provides general commentary on the regional geology

around PNPP and remarks on the historical geological backgrounding that was performed in

preparation for construction of [PNPP] in the 1970s and 1980s.55 She provides no discussion of

the SAMA analyses in the ER, either generally or to those related to seismic events. As noted

above, Petitioners make no attempt to connect this discussion to the disposition of any particular

SAMA, the use of any particular SAMA input, or the execution of any particular SAMA

modeling code. And no such connection is obvious here.

Moreover, the Commission has long refused to require licensing boards to sift through

lengthy documents in an attempt to uncover and resolve arguments not advanced by the litigants

themselves.56 Accordingly, this report provides insufficient support for the proffered

54 Petition, Exh. F at 4-8 (Material reviewed for this evaluation).

55 Id. at 16.

56 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-02-16, 55 NRC 317, 337 (2002)

(quoting Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 & 2), CLI-99-4, 49 NRC 185, 194 (1999)).

11 contention, and fails to demonstrate a genuine material dispute with the SAMA analysis,

contrary to 10 C.F.R. § 2.309(f)(1)(v) and (vi).

3. In Addition to Supplying No Basis for an Admissible Contention, Petitioners Claims Are Factually Inaccurate and Demonstrably Untrue

Despite the fact that the proposed contention is summarily inadmissible, Energy Harbor

nevertheless offers two additional observations to correct the record regarding factually

inaccurate claims made in the description of Proposed Contention 1.

First, Petitioners suggest that certain issues related to site geology and seismic hazards

have not been evaluated since the initial licensing of PNPP to account for latter-day science.57

As a procedural matter, such issues are addressed through existing regulatory requirements and

ongoing oversight that are part of the plants CLB,58 and therefore are beyond the narrow scope

of this license renewal proceeding.59

And as a factual matter, Petitioners suggestion that such safety-related matters have been

disregarded since initial plant li censing is mistaken. Seismic and other safety issues are subject

to rigorous and continuing NRC evaluation and oversight throughout the life of the plant. Dr.

Weatherington-Rice only purports to have reviewed four documents related to PNPP, primarily

from the initial plant licensing stage. 60 In contrast, the NRCs document management system is

57 Petition at 16-17.

58 See 10 C.F.R. § 54.3 (defining the CLB).

59 The license renewal safety review is limited to certain aging management matters. 10 C.F.R. §§ 54.21, 54.29(a); see also Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 7-8 (2001). The Commission determined that re-assessments of CLB safety issues at the license renewal stage would be unnecessary and wasteful because they are effectively addressed and maintained by ongoing agency oversight, review, and enforcement. Id. at 7; Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-04-36, 60 NRC 631, 638 (2004) (citation omitted).

60 Petition, Exh. F at 4-8 (Material reviewed for this evaluation) (purporting to have reviewed only four documents related to PNPP: the 1982 Safety Evaluation Report for initial plant licensing and a 1986 supplement thereto, the January 2003 version of chapter 2 of the plants Updated Final Safety Analysis Report, and a 2011 email).

12 full of countless other publicly-available documents related to NRC inspections, oversight, and

re-evaluations of PNPP seismic matters over the decades since initial plant licensingnone of

which Petitioners acknowledge.

As particularly relevant here, following the accident at the Fukushima Dai-ichi Nuclear

Power Station in 2011, the NRC directed each operating power reactor licensee to complete

various actions, including a comprehensive revaluation of the seismic hazard that could affect

their sites using updated seismic hazard information and present-day regulatory guidance and

methodologies.61 The re-evaluation for PNPP spanned several years and included detailed

technical evaluations and extensive expert analysis. 62 Given that they reviewed none of the

numerous relevant documents, Petitioners appear to be entirely unaware of this process, which

resulted in the NRC re-confirming that the seismi c design basis of PNPP (which is part of the

CLB), continues to provide adequate protection of the public health and safety. 63 Quite simply,

Petitioners claims that seismic issues have not been evaluated using latter-day science64 are

uninformed, demonstrably untrue, and beyond the scope of license renewal.

Second, the Petition presents various off-hand remarks suggesting a patent disregard for

the effects of aging and degradation of plant structures and the absence of serious

investigations of existing conditions.65 Again, Petitioners appear to be unaware that aging

61 See Letter from R. Bernardo, NRC, to F. Payne, Energy Harbor, [PNPP] - Documentation of the Completion of Required Actions Taken in Response to the Lessons Learned from the Fukushima Dai-Ichi Accident at 7 (Aug. 17, 2020) (ML20219A129) (Close-Out Letter).

62 See id., Encl. at 6, tbl. 5 (cataloging the various reports and correspondence).

63 Close-Out Letter at 8 (The staff confirmed that the conclusions in the various staff assessments continue to support a determination that no further regulatory actions are required for Perry.).

64 Petition at 17.

65 Id. at 19.

13 management is the primary focus of the license renewal process.66 The LRA presents a

comprehensive and systematic analysis of aging issues across more than 1,600 pages of content

that fully complies with applicable NRC requi rements and guidance. The LRA also includes

forty-four separate aging management programs that will be implemented during the license

renewal term to monitor, identify, and manage th e effects of aging on plant systems, structures,

and components.67 Petitioners neither acknowledge nor challenge any portion of this serious

investigation of aging issues, which fully complies with NRC requirements in 10 C.F.R. Part

54. Again, Petitioners claims are uninformed, demonstrably untrue, and fail to dispute any

information in the LRA.

Ultimately, Proposed Contention 1 fails to provide a sufficient basis for an admissible

contention. Accordingly, it should be ruled inadmissible for failure to satisfy 10 C.F.R. §

2.309(f)(1)(v) and (vi).

B. Proposed Contention 2 (Purchased Power Alternative) Is Inadmissible

In Proposed Contention 2, Petitioners argue that the ERs conclusion that the Purchased

Power alternative is not a reasonable discrete alternative is conclusory and nonfactual and

should be rejected because it presents an exa ggerated perception of the centrality of Energy

Harbor as a power producer in the multistate regional grid. 68 But this contention is inadmissible

for multiple reasons. First, at its core, C ontention 2 attacks the ER for not presenting an

adequate analysis of the need for power fro m PNPP in the regional grid. However, the

Commission has expressly declined to require a need for power analysis at the license renewal

66 See 10 C.F.R. §§ 54.21, 54.29(a).

67 See generally LRA, App. B (Aging Management Programs); see also, e.g., LRA, App. B at B-119 to B-126

(§ B.2.43, Structures Monitoring Program).

68 Petition at 22.

14 stage.69 Thus, Petitioners criticism is fundamentally immaterial. Moreover, Petitioners other

comments on the Purchased Power alternative fa il to challenge or dispute Energy Harbors

conclusion. Second, Petitioners purport to challenge the purpose and need statement for the

proposed action. However, that statement is not subject to challenge here because it was

generically developed by the NRC and is applicable to all license renewal proceedings.

Accordingly, as detailed below, Proposed Contention 2 is inadmissible for failure to satisfy

multiple admissibility criteria.70

1. Petitioners Criticisms of the ERs Discussion of the Purchased Power Alternative Fail to Support an Admissible Contention

Energy Harbor determined that the Purchased Power alternative (i.e., replacing all of

the energy generation and capacity provided by PNPP with power purchased in the open market)

was not a reasonable discrete alternative.71 Petitioners purport to attack that conclusion for two

main reasons: because it does not present an analysis of the need for power from PNPP and

because it allegedly disregards excess power capacity available in the regional grid. However, as

explained below, neither of those arguments support an admissible contention.

69 10 C.F.R. §§ 51.45(c), 51.53(c)(2).

70 As an initial matter, Petitioners include an extensive and irrelevant discussion regarding FirstEnergy Corp.

Petition at 25-27. That discussion includes a counterfactual claim that FirstEnergy renamed itself Energy Harbor when it emerged from bankruptcy in 2020. Id. at 25. But that is incorrect. FirstEnergy Corp. is a separate company that continues to exist following its emergence from bankruptcy. A portion of FirstEnergy Corp. was spun-off pursuant to the bankruptcy proceedings and became a new legal entity, Energy Harbor Corp. FirstEnergy Corp. and Energy Harbor Corp. have been separate, unaffiliated companies for nearly 4 years. Petitioners discussion of the regional energy market frequently conflates these two companies and fails to distinguish their businesses (electric transmission/distribution versus electric generation), which undermines many of their claims at a fundamental level.

71 ER at 7-3 to 7-4.

15

a. The Need for Power Analysis Demanded by Petitioners Is Not Required for License Renewal

In Proposed Contention 2, Petitioners attack the ERs discussion of the purchased

power alternative for allegedly presenting an exaggerated perception of the centrality of

Energy Harbor as a power producer in the multistate regional grid.72 Specifically, Petitioners

criticize that discussion for failing to provide certain quantitative supply-and-demand analyses

including:

• statistical or factual analysis of the availability of electricity overcapacity within Ohio,

• the available export electricity in multiple states surrounding Ohio, and

• projections, pricing information, and [an] assessment of incoming new generation resources.73

Petitioners claim that, after analyzing such information, the ER should have concluded

that energy from PNPP is redundant and not needed.74 Based on their description, Petitioners

effectively fault the ER for not including an economic need for power analysis. Indeed, the

information Petitioners demand echoes NRC guidance on the content of a need for power

analysis applicable to new plants,75 which directs applicants to:

• describe and characterize the... geographic... constraints which affect the current and forecast supply of and demand for power;

• demonstrate how the proposed project would supply some or all of the service areas future need for power;

72 Petition at 22.

73 Id. at 23.

74 Id. at 22.

75 Regulatory Guide 4.2, Rev. 3, Preparation of Environmental Reports for Nuclear Power Stations at 19 (Sept.

2018) (ML18071A400) (explaining that Rev. 3 is for use by applicants for new reactors) (Reg. Guide 4.2, Rev. 3).

16

• characterize[e] the service areas most recent annual hourly peak...

electricity demand; and

• provide information over sufficient historical and projected periods

... to complete an independent assessment of the need for the power to be provided by the proposed project.76

That is exactly the type of information Petitione rs contend is omitted from, but required to be

presented in, the ER. However, as specified in 10 C.F.R. § 51.53(c)(2), a license renewal

applicants ER is not required to include discussion of need for power.77 As noted above, such

analyses are only required for new plant applications.78

The rulemaking history of this provision elaborates further on the Commissions decision

not to require such information at the license renewal stage. The statement of considerations

explains that Part 51:

eliminates consideration of the need for generating capacity and of utility economics from the environmental reviews because these matters are under the regulatory juri sdiction of the States and are not necessary for the NRCs understanding of the environmental consequences of a license renewal decision.79

Thus, the omission of such information from the PNPP ER is not a material issue, and

Petitioners claims fail to raise a material dispute, because the Commission hasby rule

determined that such information is not necessary in a license renewal proceeding.

Accordingly, Proposed Contention 2 fails to satisfy 10 C.F.R. § 2.309(f)(1)(iv) and (vi).

76 Id. at 143.

77 Emphasis added.

78 Compare Reg. Guide 4.2, Rev. 3 at 19 (explaining that Rev. 3 is for use by applicants for new reactors) with id. at 17 ([a]pplicants for reactor license renewal should use [Regulatory Guide] 4.2, Supplement 1). The new reactor version of Regulatory Guide 4.2 includes a chapter on Need for Power, see id., Ch. 8, whereas the license renewal version does not. See generally Regulatory Guide 4.2, Supplement 1, Rev. 1, Preparation of Environmental Reports for Nuclear Power Plant License Renewal Applications (June 2013)

(ML13067A354) (Reg. Guide 4.2, Supp. 1, Rev. 1).

79 See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467, 28,467 (June 5, 1996).

17 Furthermore, as support for Proposed Contention 2, Petitioners proposed expert, Mr.

Ford, contends that, by failing to perform a need for power analysis, the NRC is not apparently

doing the proper sort of analysis.80 Given that the Commission expressly determined that such

an analysis is not requiredand the Commission codified that determination in Part 51Mr.

Fords criticism amounts to a collateral attack on NRC regulations. But, pursuant to NRC

procedure, no rule or regulation of the Commis sion... is subject to attack... in any

adjudicatory proceeding.81 Accordingly, this impermissible challenge to NRC regulations is

outside the scope of the proceeding, contrary to 10 C.F.R. § 2.309(f)(1)(iii).

b. Petitioners Fail to Dispute the ERs Reasons for Concluding That Purchased Power Is Not a Reasonable Discrete Alternative

In Section 7.2.2.1 of the ER, Energy Harbor lists three main reasons for determining that

Purchased Power is not a reasonable discrete alternative: uncertainties in energy reliability,

uncertainties created by the closure of coal-fired plants, and the potential that the environmental

impacts associated with purchased power coul d exceed the impacts of license renewal.

Petitioners fail to challenge these assertions or otherwise explain any reason why Energy Harbor

was required to reach a different conclusion. Thus, Petitioners have failed to raise a genuine

dispute with the ER for this additional reason, contrary to 10 C.F.R. § 2.309(f)(1)(vi).

First, the ER points to uncertainties in energy reliability that are not within Energy

Harbors control as a factor contributing to its conclusion that purchased power is not a

reasonable discrete alternative.82 Although the Petition and the Ford Letter offer various

comments on regional energy capacity, neither says a single word about the effect of the

80 Petition, Exh. G at 1.

81 10 C.F.R. § 2.335(a). A limited exception to this prohibition is available if the Commission grants an express waiver. 10 C.F.R. § 2.335(b). However, Petitioners neither requested nor received such a waiver here.

82 ER at 7-3.

18 purchased power alternative on energy reliability.83 Given that Petitioners do not acknowledge

this portion of the analysis, they certainly have not disputed it.

Second, the ER explains that the closure of coal-fired plants across the United States

also changes the availability of baseload generation.84 But Petitioners do not challenge that

assertion either. Petitioners claim that neighboring states, such as Kentucky and West Virginia,

currently have excess power capacity.85 But Petitioners also acknowledge that both of those

states produce most of their power from coal.86 Thus, their failure to engage with the ERs

acknowledgement of the accelerating pace of coal plant closures is conspicuous (and casts doubt

on their various claims regarding future energy ca pacity). Again, given that Petitioners do not

acknowledge the ERs assertion regarding coal plant closures, they certainly have not disputed it.

Lastly, the ER notes that the [p]otential environmental impacts associated with

purchased power could be substantial and exceed the impacts associated with the continued

operation of PNPP.87 Petitioners do not directly attack this assertion. And to the extent that any

passing remark in the Petition (e.g., noting the ER generally alludes to the carbon releases

from alternative generation sources88) could be viewed as criticizing the level of detail provided

in ER Section 7.2.2.1, Petitioners fail to explain why anything more is required. Petitioners do

not engage with the relevant analysis, including its discussion of the impacts associated with

renewable energy generation (which include habitat, forest, and agricultural land conversion and

83 Petitioners reference a PJM discussion of transmission reliability in light of certain upgrades that PJM would undertake in the event a PNPP shutdown. Petition at 26. However, that statement says nothing about energy reliability in the context of replacing PNPPs baseload generation with purchased power.

84 ER at 7-3.

85 Petition at 28.

86 Id. (emphasis added).

87 ER at 7-4.

88 Petition at 28.

19 the resultant adverse effects on wildlife and plant species) or those inherent in fossil fuel source

generation (such as resultant carbon emissions, water use and quality issues, and land use

impacts).89 As noted above, Petitioners tout purported excess capacity in states such as

Kentucky and West Virginia, which they acknowledge produce most of their power from coal,

but offer no discussion of the inherent environmental concerns tied to fossil fuel generation.90

And Petitioners certainly identify no reason why the ER was deficient for acknowledging this

reality. At bottom, Petitioners offer no reason why the ERs discussion of environmental

impacts associated with purchased power requires anything further.91

In sum, Energy Harbor considered the purchased power alternative, determined it was not

a discrete reasonable alternative, and listed several reasons to support that conclusion.92

Proposed Contention 3 fails to dispute any of those reasons. Accordingly, Petitioners have failed

to proffer an admissible contention under 10 C.F.R. § 2.309(f)(1)(vi).

2. Petitioners Criticisms of the ERs Purpose and Need Statement Fail to Raise a Genuine Dispute

Petitioners also attack the ERs purpose and need statement. For example, they claim the

purpose and need statement is poorly-conceived and self-serving because it overstates the

need for PNPPs continued operation.93 However, the purpose and need statement in the ER

merely quotes the purpose and need statement that has been generically determined by the

Commission for all license renewal proceedings. Thus, it is not subject to challenge here.

89 ER at 7-3 to 7-4.

90 Petition at 28.

91 Agencies have broad discretion to keep their [NEPA] inquiries within appropriate and manageable boundaries. Crow Butte Resources, Inc. (Marsland Expansion Area), LBP-19-2, 89 NRC 18, 40 (2019)

(quoting La. Energy Servs., L.P. (Claiborne Enrichment Ctr.), CLI-98-3, 47 NRC 77, 103) (1998).

92 ER at 7-3 to 7-4.

93 Petition at 28-29.

20 Moreover, even if it were subject to challenge, Petitioners critici sm is based on claims that are

incorrect as a matter of law. Thus, this portion of Proposed Contention 2 is both out-of-scope

and fails to raise a genuine dispute, contrary to 10 C.F.R. § 2.309(f)(1)(iii) and (vi).

As an overarching matter, the NRCs rulemaking for the environmental review of license

renewal applications generically established th e purpose and need for license renewal. The

Commission has clarified that the purpose and need for the proposed action (renewal of an

operating license) is to provide an option that allows for power generation capability beyond the

term of a current nuclear power plant operating license to meet future system generating

needs.94 NRC guidance in Regulatory Guide 4.2, Supplement 1, Preparation of Environmental

Reports for Nuclear Power Plant License Renewal Applications, Revision 1, identifies the

specific statement of purpose and need to be included in license renewal ERs that is consistent

with the above statement from the Part 51 rulemaking.95 And that purpose and need is also

presented in the license renewal GEIS.96

Consistent with the Part 51 rulemaking and the relevant regulatory guidance, Energy

Harbor identified the purpose and need for PNPP license renewal in ER Section 1.0. Section 1.0

simply quotes the Commission-developed purpose and need statement.97 Petitioners fault the

ERs stated purpose and need for the proposed action, but do not explain how the statement fails

to meet any applicable regulatory requirements. Petitioners identify no reason that Energy

94 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467, 28,472 (June 5, 1996) (This definition of purpose and need reflects the Commissions recognition that, absent findings in the safety review required by the Atomic Energy Act of 1954, as amended, or in the NEPA environmental analysis that would lead the NRC to reject a license renewal application, the NRC has no role in the energy planning decisions of State regulators and utility officials.).

95 Reg. Guide 4.2, Supp. 1, Rev. 1 at 11.

96 See GEIS at S-3, 1-3 to -4.

97 ER at 1-1.

21 Harbor erred in using the Commission-specified purpose and need statement (which is not

subject to challenge here).

Even if Petitioners could challenge the Commissions generic purpose and need

statement in this site-specific proceeding, Petitioners criticisms fail to identify any defect

therein. In essence, Petitioners allege that the purpose and need statement should not consider an

applicants commercial interests.98 But that line of argument is contrary to law. For federal

actions in which the government is not the project sponsor (e.g., entities seeking licenses or

permits, such as Energy Harbor here), Courts have long recognized that agencies have a legal

duty to consider the views of the applicant in evaluating the purpose and need for a proposed

license.99 In fact, the United States Court of Appeals for the District of Columbia Circuit has

held that agencies should accord substantial weight to the applicants commercial

objectives.100

As support for their claims, Petitioners cite Environmental Law & Policy Center v. NRC,

for the proposition that courts should not accept out of hand a license applicants statement of

purpose and need.101 But that case does not support their challenge here for multiple reasons.

First, Energy Harbor did not develop the purpose and need statement in the ER. As noted above,

that statement was generically developed by the NRC; thus, the NRC did not accept anything

98 E.g., Petition at 29 (calling the purpose and need statement self-serving).

99 See, e.g., Louisiana Wildlife Fedn, Inc. v. York, 761 F.2d 1044, 1048 (5th Cir. 1985) (not only is it permissible for the [agency] to consider the applicants objective; the [agency] has a duty to take into account the objectives of the applicants project. Indeed, it would be bizarre if the [agency] were to ignore the purpose for which the applicant seeks a permit and to substitute a purpose it deems more suitable.).

100 City of Grapevine, Tex. v. Dept of Transp., 17 F.3d 1502, 1506 (D.C. Cir. 1994) (where a federal agency is not the sponsor of a project, the Federal governments consideration of alternatives may accord substantial weight to the preferences of the applicant and/or sponsor in the siting and design of the project. In formulating the EIS requirement, the Congress did not expect agencies to determine for the applicant what the goals of the applicants proposal should be. (quoting Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 199 (D.C.

Cir. 1991)).

101 Petition at 29.

22 out of hand. Second, in the cited case, the court in fact affirmed the Commissions adoption of

an applicants goal of generating baseload energy in light of the nature of the license applicants

commercial objectives and the limited scope of NRC authority.102 So too here. Energy Harbor is

an independent power producer in the business of providing carbon-free baseload energy

generation, and the ERs purpose and need reflects as much. Accordingly, even if the

Commissions generically-determined purpose and need statement were subject to challenge here

(it is not), Petitioners claims still would fail to pr esent a genuine dispute, contrary to 10 C.F.R. §

2.309(f)(1)(vi).

C. Proposed Contention 3 (Tritium) Is Inadmissible

In Proposed Contention 3, Petitioners argue that the ER fails to include adequate

information and analyses related to the release of tritium and other radionuclides from PNPP.103

As discussed below, this contention is inadmissible for multiple reasons. First, to the extent

Petitioners attack the ERs discussion of historical effluents, they fail to explain why the ER

(which fully complies with NRC guidance) was required to provide anything more. Second,

Petitioners allege that the LRA and the ER omit various analyses of radiological impacts and

certain safety analyses related to aging management. However, those analyses are in fact

presented in the applicationPetitioners just disregard them. Ultimately, none of these claims

raise a genuine dispute with the ER and Proposed Contention 3 is inadmissible for failure to

satisfy 10 C.F.R. § 2.309(f)(1)(vi).

102 Envt L. & Poly Ctr. v. NRC, 470 F.3d 676, 683-84 (7th Cir. 2006) (Because [the applicant] was a private company engaged in generating energy for the wholes ale market, the Board's adoption of baseload energy generation as the purpose behind the [application] was no t arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.).

103 Petition at 31.

23

1. Petitioners Fail to Raise a Genuine Dispute with the ERs Consideration of Historical Effluents

Petitioners argue that the ER fails to include unspecified information regarding

historical tritium releases and alleges that th e ER only provides an incomplete and partial

history.104 The relevant discussion is presented in ER Sections 3.6.4.2 and 3.6.4.2.1. But

Petitioners do not identify any specific deficiency therein. For that reason alone, these vague

arguments fail to raise a genuine dispute with the application.

The information ER Chapter 3 is provided to comply with the requirement in 10 C.F.R. §

51.53(c)(2) to describe the affected environment around the plant. According to longstanding

NRC guidance, to satisfy this re quirement, the applicant should [p]rovide a list of documented

leaks, spills, or accidental releases, including their nature, location, date, and amount spilled

and/or released.105 The ER provides this information.106 But Petitioners do not engage with

that information or attempt to explain why anything further was required to satisfy 10 C.F.R. §

51.53(c)(2).107 Far more is required for an admissible contention.

Controlling case law has long recognized that the NRCs contention admissibility criteria

do not permit petitioners to file a vague, unpar ticularized contention, followed by an endeavor

104 Id.

105 Reg. Guide 4.2, Supp. 1, Rev. 1 at 17.

106 See, e.g., ER at 3-93 (list and discussion of liquid releases reported in 2020 and 2021). The Petition references elevated tritium levels discovered on June 22, 2023. Petition at 40. Petitioners do not expressly attack the list on ER page 3-93 for not mentioning this discovery. However, its omission is not surprising, given that the discovery occurred only a few days before the LRA was filed. And, in any event, Petitioners do not assert or explain how the omission is material to any particular analysis or conclusion in the ER.

107 Petitioners claim that the ER contains contradictory assertions regarding the frequency of groundwater monitoring. Petition at 37. Energy Harbor acknowledges that the text on ER page 3-87 contains a clerical error (it does not distinguish the monitoring frequency of wells MW-2C and MW-3C versus the other groundwater monitoring wells), whereas the information on ER page 3-92 is correct. In any event, Petitioners fail to identify any portion of the underlying analysis that relies on the clerical error on ER page 3-87 or explain why that unidentified analysis is somehow materially deficient as a result thereof.

24 to flesh it out later.108 The Commission has stated that petitioners must read the pertinent

portions of the license application... state the applicants position and the petitioners opposing

view.109 That obligation is ironclad.110 But Petitioners have not satisfied that obligation here.

Accordingly, Proposed Contention 3 fails to raise a genuine dispute as required by 10 C.F.R.

2.309(f)(1)(vi).

2. The Allegedly Omitted Analyses Are In Fact Presented in the Application, Whereas Petitioners Fail to Acknowledge or Dispute Them

Petitioners claim that various analyses related to radiological impacts and aging

management are omitted from the LRA. But, as explained below, potential radiological impacts

from the proposed action, potential cumulative im pacts, and aging management issues are all

considered in the LRA to the full extent requir ed by NRC regulations and guidance. Petitioners

simply disregard and fail to dispute the relevant information, which is insufficient for an

admissible contention.

a. Potential Radiological Impacts from the Proposed Action Are Analyzed or Otherwise Incorporated in the ER

Petitioners allege that some unspecified portion of the ER fails to analyze various

radiological impacts. For example, Petitioners alle ge that the ER omit[s] to take cognizance of

or to analyze the potential health impacts to workers and the communities surrounding Perry

Nuclear Power Plant for an additional 20 years.111 Petitioners also claim that the ER provides

no recognition of the potential impacts of radionuclides on a quatic beings, and provide a

108 Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-687, 16 NRC 460, 468 (1982).

109 Procedural Changes, 54 Fed. Reg. at 33,170; see also Millstone, CLI-01-24, 54 NRC at 358.

110 Catawba, ALAB-687, 16 NRC at 468.

111 Petition at 31.

25 general discussion of potential radiological impacts to terrestrial organisms. 112 However,

Petitioners suggestion that those issues have not been analyzed is demonstrably untrue. Each of

those topics has been analyzed, and the relevant analyses are included or incorporated by

reference in the ER. For example, the GEIS plainly includes multiple analyses related to these

topics, including, among others, analyses of:

• Radiation Exposures to the Public,113

• Radiation Exposures to Plant Workers,114

• Exposure of Aquatic Organisms to Radionuclides115, and

• Exposure of Terrestrial Organisms to Radionuclides.116

The NRC analyzed each of those issues generically for all plants in the GEIS as

Category 1 issues and concluded that the environmental impacts are SMALL in each area. And

the ER squarely adopts by reference those analyses.117 Thus, Petitioners assertions that the

ER fails to include analyses of these issues is verifiably incorrect. Petitioners simply overlook

those analyses and fail to raise a genuine dispute with the ER.

Furthermore, the Commission has designated those topics as Category 1 issues and

codified the analyses and impact conclusions in 10 C.F.R. Part 51, Subpart A, Appendix B.

Thus, to the extent that Petitioners criticisms seek to challenge one or more of those codified

analyses, Proposed Contention 3 also raises an impermissible challenge to NRC regulations.

Pursuant to 10 C.F.R. § 2.335(a), Commission regulations are not subject to attack in

112 Id. at 31, 36-37.

113 See, e.g., GEIS at 3-97 to 3-136, 4-140 to 4-146.

114 See, e.g., id. at 3-97 to 3-136, 4-135 to 4-139.

115 See, e.g., id. at 3-68 to 3-76, 4-105 to 4-107.

116 See, e.g., id. at 3-63 to 3-68, 4-61 to 4-64.

117 ER at 4-2, 8-10, 8-11, 8-15.

26 adjudicatory proceedings. Further, to the exte nt Petitioners attack the ER for not republishing

those Category 1 analyses or providing new analyses of those issues, that argument is

immaterial, beyond the scope of the proceeding, and fails to raise a genuine dispute with the

application because the NRCs regulations, at 10 C.F.R. § 51.53(c)(3)(i), unambiguously say that

is not required.

Additionally, the ER presents an analysis of the Category 2 issue Radionuclides

Released to Groundwater.118 To the extent Proposed Contention 3 could be interpreted to claim

that analysis has been omitted, that claim is also plainly wrong. Moreover, that analysis fully

complies with the requirements of 10 C.F.R. § 51.53(c)(3)(ii)(P), and Petitioners do not claim

(much less, demonstrate) otherwise. They do not engage with that analysis. They do not

identify any assertion or conclusion in that analysis that is being challenged. And they certainly

do not explain why any such unspecified assertion or conclusion is allegedly deficient in some

material way. Thus, as to this Category 2 issue, Petitioners have not identified a genuine dispute

as required by 10 C.F.R. § 2.309(f)(1)(vi).

b. Potential Cumulative Radiological Impacts Are Considered in the ER

In Proposed Contention 3, Petitioners also claim that the ER fails to analyze cumulative

[radiological] impacts with respect to radiological releases and emissions and the potential

health impacts of operating PNPP for an additional 20-year license term.119 However, the ER

provides a plant-specific analysis of cumulative impacts that considers impacts from other

activities in combination with impacts from the proposed action,120 as required for Category 2

issues. Petitioners criticize that discussion for allegedly failing to consider the cumulative

118 ER at 4-14 to 4-16.

119 Petition at 44.

120 See ER at 4-34 to 4-42.

27 radiological impacts of long-term exposure to radionuclides. However, that issue has in fact

been analyzed.

Radiological dose limits for protection of the public and workers have been developed by

the EPA and the NRC.121 As noted in the ER, these limits were expressly developed to consider

the cumulative impacts of acute and long-term exposure to radiation and radioactive

material.122 In line with regulatory requirements, PNPP prepares annual radiological

environmental operating reports and annual radiological effluent reports, which are monitored by

the NRC.123 The reports for 2016-2021 indicate that doses to members of the public were

controlled within NRC and EPA radiation protection standards and the 3-year (2017-2019)

average annual occupational dose was well below the annual limit.124 As a result, the ER

concludes that the cumulative impacts of operating PNPP on human health are expected to be

SMALL.125 Thus, the ER plainly does not fail to include a cumulative radiological impacts

analysis. In contrast, Petitioners fail to acknowle dge or engage with this analysis or articulate

any specific reason why it is somehow inadequate. Accordingly, this argument fails to raise a

material issue or identify a genuine supported dispute with the ER on a material issue of law or

fact, contrary to 10 C.F.R. § 2.309(f)(1)(iv)-(vi).

c. Aging Management Issues Are Analyzed in the LRA

Lastly, Petitioners note the requirement in 10 C.F.R. § 54.29(a) regarding consideration

of the effects of aging in license renewal proceedings, 126 and assert that the LRA provides no

121 See 10 C.F.R. § 20; 40 C.F.R. § 190.

122 ER at 4-41 (emphasis added).

123 Id.

124 10 C.F.R. § 20.1201(a)(1).

125 ER at 4-42.

126 Petition at 34.

28 analysis of pipe leaks or breakage that may oc cur in the future as a result of aging nuclear

reactors.127 However, that is demonstrably untrue. Petitioners simply disregard, rather than

dispute, the relevant safety analysis in the LRA.

As noted above,128 the LRA presents over 1,600 pages of information and analysis

regarding Energy Harbors agi ng management review, including forty-four separate aging

management programs. Petitioners do not acknowledge, discuss, or even attempt to criticize any

specific portion of that information. By way of example, the LRA contains a Buried and

Underground Piping and Tanks Program intended, among other things, to monitor and manage

the loss of material, cracking, and changes in material properties of external surfaces of piping

and tanks exposed to a buried environment.129 Thus, consideration of this issue obviously has

not been omitted from the LRA. And Petitioners fail to attack any specific portion of this (or any

other) aging management analysis in the LRA. Accordingly, Petitioners vague criticism related

to plant aging fails to raise a ge nuine dispute with the LRA safety analysis, contrary to 10 C.F.R.

§ 2.309(f)(1)(vi).

IV. CONCLUSION

Pursuant to 10 C.F.R. § 2.309(a), the Petition should be DENIED because the Petitioners

failed to propose an admissible contention.

127 Id. at 31.

128 See supra Section III.A.3.

129 LRA, App. B at B-33 to B-36 (§ B.2.8).

29 Respectfully submitted,

Signed (electronically) by Ryan K. Lighty Executed in Accord with 10 C.F.R. § 2.304(d)

RYAN K. LIGHTY, Esq. TIMOTHY P. MATTHEWS, Esq.

MORGAN, LEWIS & BOCKIUS LLP PAUL M. BESSETTE, Esq.

1111 Pennsylvania Avenue, N.W. MORGAN, LEWIS & BOCKIUS LLP Washington, D.C. 20004 1111 Pennsylvania Avenue, N.W.

(202) 739-5274 Washington, D.C. 20004 Ryan.Lighty@morganlewis.com (202) 739-5527 (202) 739-5796 Timothy.Matthews@morganlewis.com Paul.Bessette@morganlewis.com

Executed in Accord with 10 C.F.R. § 2.304(d)

RICK GIANNANTONIO, Esq.

ENERGY HARBOR CORP.

168 E. Market Street Akron, OH 44308 (330) 315-6804 Giannanr@energyharbor.com

Counsel for Energy Harbor Nuclear Corp.

Dated in Washington, D.C.

This 22nd day of December 2023

30 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

In the Matter of:

Docket No. 50-440-LR ENERGY HARBOR NUCLEAR CORP and ENERGY HARBOR NUCLEAR GENERATION LLC December 22, 2023 (Perry Nuclear Power Plant, Unit No. 1)

CERTIFICATE OF SERVICE

Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing

ENERGY HARBORS ANSWER OPPOSING THE PETITION FOR LEAVE TO

INTERVENE AND REQUEST FOR HEARING OF OHIO NUCLEAR-FREE NETWORK

AND BEYOND NUCLEAR was served upon the Electronic Information Exchange (the NRCs

E-Filing System), in the above-captioned docket.

Signed (electronically) by Ryan K. Lighty RYAN K. LIGHTY, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 (202) 739-5274 Ryan.Lighty@morganlewis.com

Counsel for Energy Harbor Nuclear Corp.

DB1/ 142825536.9