ML24033A071
| ML24033A071 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 01/30/2024 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| ASLBP 24-982-01-LR-BD01, RAS 56925, NRC-2684, 50-440-LR | |
| Download: ML24033A071 (0) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Energy Harbor Nuclear Corporation Docket Number:
50-440-LR ASLBP Number:
24-982-01-LR-BD01 Location:
teleconference Date:
Tuesday, January 30, 2024 Work Order No.:
NRC-2684 Pages 1-123 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1716 14th Street, N.W.
Washington, D.C. 20009 (202) 234-4433
1 UNITED STATES OF AMERICA 1
NUCLEAR REGULATORY COMMISSION 2
+ + + + +
3 ATOMIC SAFETY AND LICENSING BOARD PANEL 4
+ + + + +
5 HEARING 6
x 7
In the Matter of: : Docket No.
8 ENERGY HARBOR NUCLEAR : 50-440-LR 9
CORPORATION : ASLBP No.
10 (Perry Nuclear Power : 24-982-01-LR-BD01 11 Plant, Unit 1) :
12
x 13 Tuesday, January 30, 2024 14 15 Teleconference 16 17 BEFORE:
18 MICHAEL M. GIBSON, Chair 19 NICHOLAS G. TRIKOUROS, Administrative Judge 20 DR. GARY S. ARNOLD, Administrative Judge 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
2 APPEARANCES:
1 On Behalf of the Applicant:
2 PAUL BESSETTE, ESQ.
3 SCOTT CLAUSEN, ESQ.
4 RYAN K. LIGHTY, ESQ.
5 TIMOTHY MATTHEWS, ESQ.
6 MOLLY MATTISON, ESQ.
7 of:
Morgan, Lewis & Bockius LLP 8
1111 Pennsylvania Avenue, N.W.
9 Washington, DC 20004 10 11 On Behalf of the Nuclear Regulatory Commission:
12 MARCIA CARPENTIER, ESQ.
13 REUBEN SIEGMAN, ESQ.
14 of:
U.S. Nuclear Regulatory Commission 15 Office of the General Counsel 16 Mail Stop O-15D21 17 Washington, DC 20555-0001 18 301-415-4126 19 marcia.carpentier@nrc.gov 20 reuben.siegman@nrc.gov 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
3 On Behalf of Beyond Nuclear and Ohio Nuclear 1
Free Network:
2 TERRY J. LODGE, ESQ.
3 of:
316 N. Michigan Street, Suite 520 5
Toledo, OH 43604-5627 6
419-255-7552 7
terry@beyondnuclear.org 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 P-R-O-C-E-E-D-I-N-G-S 1
1:30 p.m.
2 JUDGE GIBSON: I'm Judge Michael Gibson of 3
the Atomic Safety and Licensing Board Panel. We're 4
here today to conduct an initial prehearing conference 5
in Docket No. 50-440-LR in the matter of Energy Harbor 6
Nuclear Corporation and Energy Harbor Nuclear 7
Generation, LLC.
8 Of particular interest to us today is 9
Energy Harbor's Perry Nuclear Power Plant Unit 1, 10 which is a boiling water reactor located in Perry, 11 Ohio. The current operating license for Perry is set 12 to expire in 2026 and on July 3 of 2023, Energy Harbor 13 submitted a license renewal application to the United 14 States Nuclear Regulatory Commission to extend the 15 operating license for the Perry unit for an additional 16 20 years. And if this renewal is granted, it would 17 extend operations of this plant until 2046.
18 Both the Atomic Energy Act and the Nuclear 19 Regulatory Commission's regulations provide an 20 opportunity for interested stakeholders, including 21 individual members of the public, public interest 22 groups, and other organizations and governmental 23 entities, including state and local governments and 24 Native Indian Tribes, to seek a hearing to challenge 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
5 the renewal of a nuclear operating license.
1 The essence of such a hearing is to adjudicate 2
health and safety, environmental and common defense 3
and security concerns that may be raised by a license 4
renewal application.
5 Accordingly, in the case before us once 6
the Nuclear Regulatory Commission staff completed its 7
review of the Perry Plant license renewal application 8
it published a notice in the September 29, 2023 9
Federal Register offering the public the opportunity 10 to challenge the renewal of this operating license by 11 requesting a hearing and petitioning for leave to 12 intervene in this renewal proceeding.
13 Now before going further I need to make a 14 note about nomenclature. During today's oral argument 15 the Board as well as counsel representing the parties 16 here may for convenience use the term Petitioner.
17 When they do that, they're referring to Ohio Nuclear-18 Free Network and Beyond Nuclear. Likewise, you may 19 hear the term Applicant. That is a reference to the 20 Energy Harbor entities and insofar as there is a 21 reference to staff, that means the staff of the 22 Nuclear Regulatory Commission.
23 Now with that background we have convened 24 today's oral argument because Ohio Nuclear-Free 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
6 Network and Beyond Nuclear, the Petitioners here, 1
timely filed a petition on November 28, 2023 2
requesting a hearing on three contentions that seek to 3
challenge the environmental report that was submitted 4
as part of Energy Harbor's requested renewal of its 5
operating license for the Perry Plant.
6 I should note, however, in its reply Ohio 7
Nuclear-Free Network and Beyond Nuclear indicated that 8
they wished to withdraw their first contention, and we 9
will address the requested withdrawal during the 10 course of oral argument.
11 Ohio Nuclear-Free Network and Beyond 12 Nuclear's second contention challenges the adequacy of 13 Energy Harbor's analysis of a specific portion of 14 Energy Harbor's environmental report, and that is the 15 so-called no-action alternative.
16 And in their third contention the 17 Petitioners challenge another portion of Energy 18 Harbor's environmental report, specifically the 19 adequacy of its assessment of tritium releases from 20 the Perry Nuclear Power Plant. Again, we will address 21 these contentions shortly.
22 But a bit more about how we got here.
23 After Ohio Nuclear-Free Network and Beyond Nuclear had 24 filed this petition with its three contentions the 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
7 Chief Administrative Judge of the Atomic Safety and 1
Licensing Board Panel issued a notice designating this 2
three-member Board to conduct this proceeding.
3 Now it is important to note that 4
administrative judges for the Atomic Safety and 5
Licensing Board Panel do not work for, nor do they 6
work with the Nuclear Regulatory Commission staff in 7
reviewing applications to renew nuclear operating 8
licenses such as this one for the Perry Unit 1.
9 Rather, this Board is charged with independently 10 determining whether the three contentions that have 11 been raised in the petition here are appropriate for 12 adjudication in this renewal proceeding.
13 Now the shorthand for this initial task is 14 to decide if the Petitioners contentions are 15 admissible. If we determine that one or more of these 16 contentions are admissible, then our next task will be 17 to adjudicate the merits of those contentions, which 18 means we would be looking at the substantive validity 19 of the claims that the Petitioners assert here, which 20 ultimately could result in the acceptance of this 21 license renewal, or in the conditioning of it, or in 22 the denying of it.
23 But before we can even address the 24 admissibility of these contentions we first must 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
8 determine whether the Petitioners have -- who come 1
before us today have standing.
2 Now, neither the Applicant nor the NRC staff are 3
contesting that the Petitioners have standing, but 4
this Board nevertheless has an independent 5
responsibility to assess and rule upon whether the 6
Petitioners do have standing. And just to be sure 7
there's no misunderstanding here, for our purposes 8
standing means whether the Petitioners have shown that 9
the renewal of the license for Perry Unit 1 would 10 threaten the Petitioners or their respective members 11 with some concrete and particularized injury.
12 So with that preface I would like to 13 introduce the Board members who are presiding over 14 this oral argument. As I noted earlier, I'm Judge 15 Gibson. I'm an attorney and I'm the chair of this 16 licensing board. To my right, your left, is Judge 17 Nicholas Trikouros and to left, your right, is Judge 18 Gary Arnold. Both of them are engineers and both of 19 them are full-time members of the Atomic Safety and 20 Licensing Board Panel.
21 Also with us in the Licensing Board 22 Panel's room here in the NRC Headquarters in 23 Rockville, Maryland are our law clerks Noel Johnson 24 and Emily Newman, as well as our IT coordinator Andy 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
9 Wilke.
1 Now I would like to have counsel for the 2
various participants identify yourselves for the 3
record. I would like for lead counsel to introduce 4
yourself, to state the name of your client, and 5
introduce any counsel who may be participating with 6
you in your argument today.
7 Let's start with counsel for the 8
Petitioners, Ohio Nuclear-Free Network and Beyond 9
Nuclear. Then we'll move to counsel for Energy 10 Harbor, and then finally to the NRC staff counsel.
11 MR. LODGE: Thank you, Judge. My name is 12 Terry Lodge.
I am the sole attorney and 13 representative of both the Ohio Nuclear-Free Network 14 and Beyond Nuclear, the two Petitioners. Thank you.
15 JUDGE GIBSON: Mr. Lighty?
16 MR. LIGHTY: Thank you, Your Honors, and 17 it may it please the Board, my name is Ryan Lighty and 18 I am a partner with the law firm of Morgan, Lewis &
19 Bockius in Washington, D.C., and I am appearing on 20 behalf of the Applicant, Energy Harbor Nuclear 21 Corporation, which I will simply refer to as Energy 22 Harbor for today's purposes. And in the room with me 23 today is my colleague Molly Mattison. And I believe 24 my co-counsel Timothy Matthews, Paul Bessette, and 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
10 Rick Giannatonio, and other Energy Harbor personnel 1
are monitoring today's proceedings remotely.
2 JUDGE GIBSON: Thank you, Mr. Lighty.
3 NRC staff?
4 MR. SIEGMAN: Good afternoon and may it 5
please the Board, my --
6 JUDGE GIBSON: Hold on just a second.
7 You've got some echo there.
8 Mr. Wilke, you have a suggestion on how we 9
can address that?
10 MR. SIEGMAN: I think it might have 11 something to do with the internal room set up, but is 12 this better now?
13 JUDGE GIBSON: Yes, that's much better.
14 Thank you.
15 MR. SIEGMAN: Apologies. Good afternoon.
16 May it please the Board, my name is Reuben Siegman and 17 I am here today as a member of the NRC Office of 18 General Counsel along with my co-counsel Marcia 19 Carpentier on behalf of the NRC staff.
20 JUDGE GIBSON: Thank you. Now there's 21 just a couple of other administrative matters that we 22 need to address before we can begin argument.
23 In our January 22, 2024 Board issuance in 24 this case we made available to the participants and 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
11 members of the public a listen-only telephone line so 1
that they could access this hearing. Consequently, 2
counsel, as a courtesy to members of the public 3
listening on the telephone line I would ask that you 4
please identify yourself before you speak. And 5
additionally we're going to be monitoring everybody's 6
connectivity so that we can take any steps we need to 7
ensure that we don't move forward with the argument 8
until everyone is able to reconnect if we have a 9
problem with this video link.
10 Okay. Last, this proceeding is being 11 transcribed by our court reporter Patrick King and a 12 transcript of this oral argument should be available 13 in the NRC's electronic hearing docket sometime next 14 week.
15 Having completed our introductions and 16 dealt with these administrative matters I'd like to 17 proceed to oral argument. As we noted earlier today, 18 we're going to be considering two separate matters:
19 standing and contention admissibility.
20 As we do this I should let you know that 21 we're going to be using a slightly different format 22 for today's oral argument than you may be used to.
23 Since we've already read your pleadings we intend to 24 focus directly on a few specific matters that we will 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
12 be exploring with counsel for all sides here, and 1
rather than allotting you a specific amount of time 2
for opening remarks or for reply and rebuttal to a 3
specific question, we're just going to ask you 4
individual counsel specific questions.
5 At the end if you don't think that you've 6
had a chance to address all the issues that should 7
have been addressed, don't worry about it because 8
we're going afford each participant a few minutes for 9
closing remarks at the end of your questioning during 10 which you can raise any additional matters that you 11 believe were not adequately addressed during oral 12 argument.
13 So let's begin with questions regarding 14 standing. Mr. Lodge, having reviewed your pleadings 15 it appears that Ohio Nuclear-Free Network seeks to 16 establish representational standing to intervene in 17 this proceeding based on individual standing of two of 18 its members: Connie Kline and David Hughes, and that 19 both of them have signed declarations that they (1) 20 authorize Ohio Nuclear-Free Network to represent them 21 in this proceeding; and (2) that they live within a 22 50-mile radius of Perry Unit No. 1.
23 Based on this, Mr. Lodge, it would appear 24 to me that these declarations establish that Ohio 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
13 Nuclear-Free Network has standing here. Is that an 1
accurate assessment, Mr. Lodge?
2 MR. LODGE: Yes, sir, it is. At least I 3
certainly hope --
4 JUDGE GIBSON: Okay.
5 MR. LODGE: -- it is the conclusion --
6 JUDGE GIBSON: Okay. Good.
7 MR. LODGE: -- of the Board.
8 JUDGE GIBSON: Okay. Thank you. All 9
right. Now also for Beyond Nuclear it is my 10 understanding that it seeks to establish 11 representational standing to intervene in this 12 proceeding based on the individual standing of one of 13 its members, Ronald O'Connell, whose declaration 14 states that (1) he authorizes Beyond Nuclear to 15 represent him in this proceeding; and (2) he and his 16 farm are located within a 50-mile radius of Perry Unit 17 No. 1. Is that correct, Mr. Lodge?
18 MR. LODGE: Yes, it is, Judge.
19 JUDGE GIBSON: Okay.
20 MR.
LODGE:
And we have (audio 21 interference) --
22 JUDGE GIBSON: Based on this -- thank you.
23 MR. LODGE: Thank you.
24 JUDGE GIBSON: Well, based on this, Mr.
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
14 Lodge, it would appear to me that these declarations 1
establish that Beyond Nuclear has standing here.
2 Counsel for Energy Harbor, I take that you 3
likewise concede that the Petitioners have established 4
standing. Is that correct?
5 MR. LIGHTY: Yes, Your Honor, we believe 6
that the Petitioners have demonstrated their 7
qualification for the Commission's proximity 8
presumption shortcut to standing in this proceeding.
9 JUDGE GIBSON: Thank you, Mr. Lighty.
10 And counsel for the NRC staff, you also 11 agree that Petitioners have established standing, is 12 that correct?
13 MS. CARPENTIER: Yes, that is correct.
14 JUDGE GIBSON: Thank you.
15 Okay. Do any other Board members have any 16 questions about standing?
17 JUDGE ARNOLD: No.
18 JUDGE TRIKOUROS: No.
19 JUDGE GIBSON: Okay. Very well. Then 20 we're going to turn to the contentions themselves.
21 Mr. Lodge, I would like first to turn to 22 Contention 1, which concerns Energy Harbor's analysis 23 of severe accident mitigation alternatives. After 24 reading your reply that was filed on January 2, it 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
15 appears that Petitioners intend to withdraw this 1
contention. Is that correct?
2 MR. LODGE: It is correct, Your Honor.
3 JUDGE GIBSON: Very well. Then let the 4
record reflect that Contention No. 1 is no longer at 5
issue here.
6 All right. Mr. Lodge, let's turn to 7
Contention No. 2. By this contention Petitioners seek 8
to challenge Energy Harbor's environmental report on 9
the ground that it fails to provide a meaningful no-10 action alternative and that as a consequence this 11 environmental report fails to comply with the National 12 Environmental Policy Act. Is that a fair statement, 13 Mr. Lodge?
14 MR. LODGE: Yes. Yes, it is.
15 JUDGE GIBSON: All right. Now in 16 particular, Mr. Lodge, you have asserted that a proper 17 no-action alternative should recognize that there will 18 be other power sources available during the period of 19 renewal, which would effectively be from 2026 to 2046.
20 Is that correct?
21 MR. LODGE: Yes, it is.
22 JUDGE GIBSON: And you further claim that 23 these other power sources should have been properly 24 analyzed, and had they done so, there would be no need 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
16 for Perry Unit No. 1 to continue operation. Is that 1
essentially the meat of your contention, sir?
2 MR. LODGE: That's the gist of it, yes, 3
sir.
4 JUDGE GIBSON: Okay. Now then in your 5
reply, Mr. Lodge, you dispute an assertion that 6
appears in the answers of both the NRC staff and the 7
answer of Energy Harbor, and that assertion that 8
you're disputing is that under 10 CFR 51.53(c)(2) the 9
environmental report required for a license renewal 10 does not need to address the need for power. That's 11 what you're disputing, is that correct?
12 MR. LODGE: That is correct.
13 JUDGE GIBSON: Okay. So if I understand 14 the argument in your reply correctly, what you are 15 seeking to hang your hat on is the second clause of 10 16 CFR Section 51.53(c)(2), and that clause provides that 17 environmental reports should address the need for 18 power insofar as the economic costs and the economic 19 benefits of renewing a particular license, and I'm 20 going to quote now, either are essential for a 21 determination regarding the inclusion of an 22 alternative in the range of alternatives considered or 23 are relevant to mitigation. Is that a fair summary of 24 your position, Mr. Lodge?
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
17 MR. LODGE: Yes, it is.
1 JUDGE GIBSON: Okay. Very well. Now you 2
go on in your reply to assert that the environmental 3
report from Energy Harbor that is at issue here should 4
have included long-term purchased power as an 5
alterative to renewal of the operating license for 6
Perry. Is that correct?
7 MR. LODGE: Yes.
8 JUDGE GIBSON: Okay. Now I would now like 9
to turn to Mr. Lighty. In Section 7.2.2.1 of your 10 environmental report you list three main reasons why 11 long-term purchased power is not a reasonable 12 alternative to the renewal of Perry Unit No. 1's 13 operating license. And those three reasons are: (1) 14 uncertainties in energy reliability; (2) uncertainties 15 created by the closure of coal-fired plants; and (3) 16 the potential that the environmental impacts 17 associated with purchased power could exceed the 18 impacts of license renewal. Is that correct, Mr.
19 Lighty?
20 MR. LIGHTY: Yes, I think that is the main 21 thrust of Section 7.2.2.1.
22 JUDGE GIBSON: Thank you.
23 Now, Mr. Lodge, having read your reply 24 several times it appears to me that a great deal of 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
18 your claim that this second contention is admissible 1
centers on a plan that was proposed by PJM. Is that 2
correct?
3 MR. LODGE: That's correct.
4 JUDGE GIBSON: Okay.
5 MR. LODGE: Yes.
6 JUDGE GIBSON: Now PJM -- oh, I'm sorry, 7
sir.
8 MR. LODGE: No, no. That's all right.
9 Please proceed, sir.
10 JUDGE GIBSON: Now PJM is a regional 11 transmission organization that coordinates the 12 movement of wholesale electricity in all or parts of 13 13 states and the District of Columbia. Is that your 14 understanding as well, sir?
15 MR. LODGE: It is.
16 JUDGE GIBSON: Okay. And according to 17 your petition and your reply PJM was confronted in 18 2019 with having to ensure that there would be 19 adequate power for its customers in the event that 20 Energy Harbor shut down Perry Unit No. 1 in 2020. Is 21 that correct?
22 MR. LODGE: Correct. Perry and the Davis-23 Besse Nuclear Power Plant.
24 JUDGE GIBSON: Okay. But for present 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
19 purposes we're talking about Perry, sir.
1 JUDGE GIBSON: Yes, indeed.
2 JUDGE GIBSON: And in fact PJM confirmed 3
to Ohio state officials that were Perry Unit No. 1 to 4
shut down in 2020, PJM would still be able to provide 5
adequate power to its customers. Is that correct, 6
sir?
7 MR. LODGE: Yes, it is.
8 JUDGE GIBSON: So in effect you're 9
asserting that this PJM analysis in 2019 proves there 10 is an alternative to not renewing the operating 11 license for Perry Unit No. 1 in 2024, or 2026 I should 12 say, and so Energy Harbor should have explored this in 13 its environmental report. Is that correct?
14 MR. LODGE: Yes, it is.
15 JUDGE GIBSON: Okay.
16 All right. Mr. Lighty, I presume it's 17 your position that there's not anything in this PJM 18 analysis in 2019 that bears on our deliberations here.
19 Is that correct, sir?
20 MR. LIGHTY: Yes, that's correct, Your 21 Honor. Nothing in that PJM commentary contradicts 22 anything that is in the Energy Harbor environmental 23 report.
24 JUDGE GIBSON: In particular, Mr. Lighty, 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
20 on page 17 of your answer you assert that the NRC's 1
statement of considerations for Part 51 states that 2
Part 51 eliminates consideration of the need for 3
generating capacity and of utility economics from 4
environmental reviews that are submitted in support of 5
the renewal of operating licenses because these 6
matters are under the regulatory jurisdiction of the 7
states and are not necessary for the NRC's 8
understanding of the environmental consequences of a 9
license renewal decision. Did I read that correctly, 10 Mr. Lighty?
11 MR. LIGHTY: Yes, Your Honor.
12 JUDGE GIBSON: So in effect, Mr. Lighty, 13 your maintaining that by rule any consideration of the 14 need for power is outside the permissible scope of a 15 license renewal proceeding. Is that correct?
16 MR. LIGHTY: Yes, Your Honor, with one 17 exception, and that being the exception that's 18 identified in the second portion of 10 CFR Section 19 51.53(c)(2) that we discussed earlier for such 20 analyses that are essential to a determination of 21 whether an alternative is included within the range of 22 reasonable alternatives in the environmental analysis.
23 JUDGE GIBSON: So, Mr. Lighty, let me make 24 sure I understand what you're saying. You're saying 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
21 that, yes, by rule 51. -- make sure I get the number 1
right here -- 53(c)(2) does not -- does allow for some 2
consideration of need for power, but your assertion is 3
that it's not appropriate in this case. Is that 4
right?
5 MR. LIGHTY: Yes, Your Honor. Actually 6
our assertion is twofold: First, that this is a new 7
argument that was raised for the first time in the 8
reply to suggest that this exception applies. And 9
second, that the exception does not apply in these 10 circumstances because Petitioner hasn't shown how it 11 is essential to a determination of whether the 12 purchased power alternative should be included in the 13 range of alternatives considered in the environmental 14 report.
15 JUDGE GIBSON: Okay.
16 A
l l
r i
g h
t 17 Mr. Lodge, I'm going to let you reply to that in 18 just a minute, but I want to go to the NRC staff and 19 see if there is anything else that they feel we need 20 to hear about 51.53(c)(2).
21 MR. SIEGMAN: Thank you, Your Honor. I 22 don't think we have anything more to add aside from 23 what you've identified from the statement of 24 consideration and the different clauses, including the 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
22 exception.
1 JUDGE GIBSON: Okay. Very well.
2 All right. Mr. Lodge, essentially Mr.
3 Lighty has raised two assertions on why you're wrong.
4 Number one is he's saying that you should have put 5
this in your original petition and that you can't put 6
this in your reply, but even if you could, that you're 7
wrong for the reasons that he stated. Now how would 8
like to explain why we can consider the need for power 9
in this proceeding?
10 MR. LODGE: Right. The Board can admit 11 this contention if it pursues the logic that Your 12 Honor has already laid out in describing the 13 contention. We are not quibbling over need for power.
14 We're quibbling over the fact that there is not 15 adequate disclosure as required by NEPA of the 16 alternative of no action that has been posited by 17 Applicant.
18 The problem is that the Applicant offers 19 as an explanation of why they aren't considering 20 purchased power as an option -- they're actually 21 offering a conclusory paragraph that you cited, Your 22 Honor, of basically saying that there's problems with 23 purchasing baseload power at the scale that they need 24 on a long-term basis, the environmental effects of new 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
23 generation transmission capacity, and operational 1
impacts of fossil fuel generation. That's a 2
conclusory paragraph which is not supported by any 3
facts in the environment report.
4 There is no analysis of -- there's no 5
table for instance of projected or expected or planned 6
plant closures. We are talking -- when we are talking 7
the PJM region, the 13-state region, we are talking 8
about dozens and dozens of plants in various ages and 9
stages of operation and deterioration, and some of 10 them are closer to being closed than others. And 11 perhaps like Perry, which was almost closed in about 12 2020 because of economic considerations, some plants 13 may or may not be slated for termination of operations 14 and those dates get moved back.
15 But the point is there's no analysis 16 whatsoever of what's -- pardon me. I may have to ask 17 my associates here --
18 JUDGE GIBSON: Mr. Lodge. Yes, trying to 19 make partner, I guess.
20 MR. LODGE: (Laughter.)
21 JUDGE GIBSON: Go ahead, sir.
22 MR. LODGE: And, yes, she's been a real 23 pitbull, but she isn't one.
24 Anyway, the problem is that there is -- if 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
24 you will, may I ask her to leave so she's not jumping 1
up and barking?
2 JUDGE GIBSON: That's all right if it's 3
distracting you, Mr. Lodge, it's okay. It's not 4
distracting us. It's fine.
5 MR. LODGE: Well, if it's not distracting 6
you, then all right. Fine.
7 JUDGE GIBSON: We're fine.
8 But the problem is that under NEPA the --
9 she's not going to stop -- under NEPA it is the 10 obligation of the applicant, and ultimately the 11 agency, to show that the no-action alternative 12 actually is honestly portrayed. It isn't just going 13 to be dismiss-able based on conclusory paragraphs with 14 no data.
15 I did discuss in the original petition as 16 well as in the reply these very -- the void of 17 information. And as to responding to the fact that we 18 only raised this for the first time in the reply 19 brief, that's rather mystifying for several reasons:
20 Number one, I've been litigating contentions for many 21 years and have certainly heard often from counsel if 22 they believed that we have improperly raised a 23 contention on our side of case and no one has 24 contacted me from the staff or the Applicant regarding 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
25 that.
1 But more than that, I cited and discussed 2
the regulation at issue with the caveat built into it 3
on page -- beginning on page 28 of our original 4
petition and I also discussed this very concept, that 5
the Applicant and the staff both are attempting to 6
conflate or confuse the nature of our objection. Our 7
objection is that there is a grossly unconsidered 8
option of purchased power available. And incidentally 9
I would have expected an analysis of planned or 10 expected purchased power availability into the 20-year 11 period as part of the rejection that is stated in the 12 environmental report by Energy Harbor. But that is 13 the problem.
14 The problem is is that there is not a 15 genuine analysis. There is a dismissive cursory 16 paragraph that offers conclusion, no facts. And I 17 vehemently disagree and I think a fair reading of our 18 additional petition will certainly show the Board that 19 we didn't just raise this on reply as some sort of 20 afterthought.
21 JUDGE GIBSON: Okay. Thank you. I 22 believe some of the other judges have some questions 23 about this.
24 Mr. Lighty, I know you're probably wanting 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
26 to reply, but let's just let them ask some questions 1
and I think we may be able to tease this out without 2
you having to go into a long discussion in response 3
specifically to Mr. Lodge.
4 JUDGE ARNOLD: I have a question and it's 5
about some confusion I have. The question actually, 6
I apologize, is kind of long, but I want you to 7
understand what I'm confused about before you reply.
8 When I read the contention, I came away 9
with the belief that the essential core of Contention 10 2 is related to Section 7.2.2.1 of the environmental 11 report titled Purchased Power. In this two-paragraph 12 section Energy Harbor explains the three reasons why 13 they did not consider purchased power to be a 14 reasonable alternative requiring further evaluation.
15 I believe that your contention at its core objects to 16 the brevity and subjectiveness of this evaluation.
17 However, when I read Energy Harbor's 18 answer to this contention on page 14 I found that they 19 believe this contention can contain two primary 20 focuses. First, that Contention 2 attacks the 21 environmental report for not presenting an adequate 22 analysis of the need for power. And second, that 23 Petitioners challenge the purpose and need statement.
24 Finally, when I read page 27 of the NRC 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
27 staff's answer, I find that they believe the 1
contention contains three main challenges. First, 2
that the application contains an inadequate purpose 3
and need statement. Second, that the Applicant 4
exaggerated the important of Energy Harbor in 5
producing power for Idaho. And third, that the 6
application's no-action alternative is fact-averse.
7 So I
now have three different 8
interpretations of Contention 2 that are very 9
different and that suggests to me that the contention 10 may not have been as clear as it had intended to be.
11 Could you, Mr. Lodge, in the fewest words 12 possible provide us with the essential nuggets of the 13 challenges you intended in this contention?
14 JUDGE GIBSON: Go ahead.
15 MR. LODGE: Okay. The no-action 16 alternative was rejected because essentially Energy 17 Harbor was saying there is a self-evident need for the 18 plant. Our argument is that if no action is taken; 19 i.e., the license is allowed to expire on November 20 7th, 2026, that there will be adequate replacement 21 power.
22 Energy Harbor conducted no evidentiary 23 kind of investigation before writing that purchased 24 power isn't realistic for these reasons and portrays 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
28 the no-action alternative as I suppose the rhetorical 1
equivalent of falling off a cliff on November 8th, 2
2026.
3 JUDGE ARNOLD: Okay. So your opinion is 4
that when the staff says that there were three main 5
focuses and Energy Harbor says you're challenging the 6
NEPA power and the purpose and need statement, they 7
were possibly not understanding the main focus of this 8
contention?
9 MR. LODGE: Yes. Or perhaps strategically 10 arguing that it is simply a rehash of the need for 11 power. And that's prohibited and ducking under the 12 regulation.
13 And incidentally, Your Honor, I would like 14 to point out I understand that the purpose and need 15 statement is actually I believe found in NRC advice, 16 but that doesn't mean that the facts here warrant this 17 particular aspect of the application to pass under 18 NEPA. Thank you.
19 JUDGE ARNOLD: Okay. You styled this 20 contention as a
challenge to the no-action 21 alternative, but you focus most of your charge against 22 the purchased power option of the no-action 23 alternative. Now within the no-action alternative a 24 total of 14 options were evaluated, and these included 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
29 for instance purchased power, plant reactivation, 1
conservation, new nuclear, new wind, new solar, et 2
cetera.
3 From what I have read I actually see this 4
as a contention against the purchased power option 5
under the no-action alternative as opposed to being a 6
challenge to the no-action alternative evaluation. Is 7
a reasonable interpretation?
8 MR. LODGE: Yes, except for the fact that 9
some of the 14 options are -- they overlap. I mean 10 purchased power that is generated by alternative 11 sources for instance versus purchased power from coal 12 or other nuclear or natural gas. But yes, I agree.
13 JUDGE ARNOLD:
Okay.
In that 14 environmental report Section 7.2.2.1 Energy Harbor 15 gives three reasons why they did not further consider 16 it: uncertainly in energy reliability, uncertainty 17 created by ongoing closure of coal fire plants, and 18 the environmental impacts of purchased power.
19 Your contention support appears to be 20 largely centered on showing the availability of excess 21 power in neighboring areas and states. And as you 22 pointed out, it's mostly coal or natural gas-produced.
23 Availability of power was not amongst the reasons for 24 Energy Harbor excluding further consideration of 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
30 purchasing power. How does the availability of power 1
affect any of the three reasons which Energy Harbor 2
did give for excluding purchased power?
3 MR. LODGE: Well, Energy Harbor first 4
refers in their ER to the uncertainties associated 5
with purchasing baseload power at the scale of Perry.
6 And that is certainly again a fact-free conclusory 7
statement. And our task at this very preliminary 8
stage as interveners was to demonstrate that there are 9
facts that have not been properly considered. And 10 that was why we laid out the prospect of considerable 11 power available after 2026.
12 And I will even accept that there may be 13 a grounds for rejection of purchased power based upon 14 environmental effects, but there's no recitation, 15 there's no systematic presentation of what those 16 environmental effects might be. What I'm saying is 17 again the purchased power is not considered as a 18 reasonable, discrete alternative, but there is no 19 explanation, no factual basis underlying those 20 conclusions. Thank you.
21 JUDGE ARNOLD: Thank you. Now I have a 22 question for the NRC staff. In the environmental 23 report evaluation of the no-action alternative the 24 licensee came up with a list of I believe it was 14 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
31 options and then used some sort of screening process 1
to eliminate most of the options from further 2
consideration. What type of criteria does the NRC 3
staff use to determine if licensee's screening process 4
was adequate?
5 MR. SIEGMAN: Your Honor, the NRC 6
technical review staff follows the regulations in 10 7
CFR 51.70(b), quote, the NRC staff will independently 8
evaluate, be responsible for the reliability of all 9
information used in the draft environmental impact 10 statement, quote. So the staff on its draft 11 environment impact statement then independently 12 evaluates the environmental impacts.
13 JUDGE ARNOLD: Okay. Just to make sure I 14 understand what you're saying, counsel, you're saying 15 that whatever screening technique the Applicant uses 16 doesn't color the NRC's evaluation? NRC makes its 17 independent -- an independent evaluation of each of 18 those criteria? Is that a fair statement? What 19 you're saying?
20 MR. SIEGMAN: Yes. I would just add, Your 21 Honor, that for when the staff is beginning its 22 environmental review for the draft environmental 23 impact statement.
24 JUDGE ARNOLD: At that stage?
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32 MR. SIEGMAN: Yes, Your Honor.
1 JUDGE ARNOLD: But not at the stage of 2
merely having the environmental report and issuing the 3
notice in the Federal Register? You would not have 4
gone to those -- evaluated those criteria at this 5
point in time? Is that a fair statement?
6 MR. SIEGMAN: The staff determined -- the 7
technical staff determined during its acceptance 8
review that the ER did provide sufficient information 9
for the staff to then begin its environmental review 10 at that stage.
11 JUDGE ARNOLD: Okay. Thank you very much.
12 Now I have a couple of questions for 13 Energy Harbor. Mr. Lighty, I know essentially nothing 14 about Energy Harbor. Could you briefly describe what 15 your business is, what you do?
16 MR. LIGHTY: Yes, Your Honor.
17 JUDGE GIBSON: Do you just generate power?
18 MR. LIGHTY: Yes, Energy Harbor is focused 19 on generating power. And that's different than for 20 example transmission of power across long distances or 21 distribution of power at the local utility scale, but 22 focused on generation of electricity.
23 JUDGE ARNOLD: How would you characterize 24 your customers? Are they individual houses or are you 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
33 talking about other utilities that distribute?
1 MR. LIGHTY: I think we're talking mostly 2
about wholesale generation, Your Honor, so not 3
necessarily individual households.
4 JUDGE ARNOLD: What are you --
5 JUDGE TRIKOUROS: I just want to -- Mr.
6 Lighty, is that limited to nuclear or is it generation 7
of all (audio interference)?
8 JUDGE ARNOLD: Yes, what are your sources 9
of power?
10 MR. LIGHTY: I believe we have different 11 generation sources. It is not solely nuclear.
12 JUDGE ARNOLD: Do you --
13 MR. LIGHTY: Now, to -- just to make a 14 distinction there, Energy Harbor Nuclear Corporation 15 that operates the plant obviously is focused on 16 nuclear.
17 JUDGE ARNOLD: Okay. Who are the 18 Applicants, Energy Harbor or Energy Harbor Nuclear?
19 MR. LIGHTY: Energy Harbor Nuclear 20 Corporation is the licensed operator of the plant.
21 That is one of the Applicants. And then the owner 22 licensee is also an Applicant, and that is Energy 23 Harbor Nuclear Generation, LLC. And they are part of 24 the Energy Harbor Corporation family.
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34 JUDGE ARNOLD: Okay. In the environmental 1
report you provided three reasons why you did not 2
further consider the purchased power option, and they 3
were once again uncertainty in energy reliability, 4
uncertainty created by ongoing closure of coal-fired 5
plants, and environmental impacts of purchased power.
6 Could you explain to me what you mean 7
exactly? What are the uncertainties in energy 8
reliability and the uncertainties due to coal -- or 9
impacts of coal-fired plants?
10 MR. LIGHTY: Sure, Your Honor. The 11 cornerstone of this analysis is the problem of 12 uncertainty. And what the ER highlights is the fact 13 that the purchased power alternative entails multiple 14 variables regarding the availability of baseload 15 supply of energy reliability, of environmental 16 impacts, because that alternative is generic. It 17 doesn't identify specific generating resources at 18 specific locations, with specific fuel sources or 19 specific capacity and reliability facts.
20 And just as a matter of commonsense the absence 21 of specificity introduces uncertainty into the 22 equation.
23 And in contrast, the proposed action of 24 renewing the Perry license involves a specific 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
35 generating resource at a specific location producing 1
carbon-free electricity with detailed historical 2
plant-specific information regarding capacity and 3
reliability. So the unremarkable observation that a 4
generic alternative introduces uncertainty should not 5
be controversial here.
6 JUDGE TRIKOUROS: Can I ask a --
7 JUDGE ARNOLD: Sure.
8 JUDGE TRIKOUROS: You're addressing 9
baseload power in your discussion. So there's an 10 uncertainty in being able to provide continued 11 baseload power. What about the availability factor, 12 or I guess you could say capacity factor, but I mean 13 availability factor when I say that Perry Nuclear 14 Plant probably has an availability factor somewhere in 15 the 90-plus percent range as most nuclear plants do.
16 Is that included in this -- in your thought process 17 that there would be uncertainty if you couldn't supply 18 that amount of baseload power at that availability 19 factor?
20 MR. LIGHTY: Yes, Your Honor. I think 21 that's exactly right. With Perry we know what that 22 factor is because of historical information. Using 23 the more unspecified generic purchased power 24 alternative you don't know what that number is going 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
36 to be, and it may fluctuate because other generating 1
sources may not have that same baseload power 2
attribute. And that's really the uncertainty that 3
we're referring to.
4 JUDGE TRIKOUROS: At that's as a purchase 5
of coal, so to speak? In other words, it doesn't 6
matter if it's coal, natural gas, solar, wind? None 7
of that matters? It's simply being able to get that 8
baseload power at that availability factor?
9 MR. LIGHTY: Yes, Your Honor. And I think 10 the unknown factor of not knowing what the other 11 generation sources would be in that mix of purchased 12 power is what creates uncertainty. And I would note 13 again that regarding the level of detail in this 14 analysis in this section on pages 6 to 7 of the reply 15 Petitioners note that Reg Guide 4.2 says that an ER 16 should devote substantial treatment to each 17 alternative considered in detail.
18 And that's true, but the Petitioner -- I 19 think Mr. Lodge just mentioned that he faulted that 20 discussion for not including a table of projected 21 plant closures, for example. But purchased power is 22 not an alternative that's screened in for detailed 23 consideration. It's screened out. And so the 24 relevant guidance on page 52 of Reg Guide 4.2 actually 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
37 says that for alternatives that were eliminated from 1
detailed study the applicant need only, and I quote, 2
briefly discuss the reasons for their elimination, end 3
quote.
4 So the absence of a more detailed 5
analysis, a need for a power report or tables of 6
capacity factors and so forth, it isn't required 7
according to the NRC's guidance. And we think that 8
minimal requirement has been satisfied here. Thank 9
you.
10 JUDGE ARNOLD: I'm done.
11 JUDGE GIBSON: You got some more questions 12 on No. 2?
13 JUDGE TRIKOUROS: Yes.
14 JUDGE GIBSON: Okay. Please proceed, Mr.
15 Trikouros.
16 JUDGE TRIKOUROS: Fortunately most of my 17 concerns overlap what you've heard, so that's 18 beneficial, but my question is actually to Mr. Lodge 19 at this point.
20 In the petition; I believe it's at page 21 22, the statement is made that Energy Harbor's purpose 22 and need statement for the proposed project clearly is 23 devoted to preservation of anachronistic baseload 24 power. So first of all, I'd like to understand the 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
38 significance of the adjective anachronistic in terms 1
of describing baseload power. Is it situation or 2
should -- can I just ignore that?
3 MR. LODGE: It is significant, Your Honor.
4 If I may proceed?
5 JUDGE TRIKOUROS: Yes.
6 MR. LODGE: It is anachronistic to 7
consider baseload plants as the only means of 8
providing ongoing baseload, if you will, power.
9 Studies and performance of large-scale wind and solar 10 generation are showing that the so-called smart grid 11 can easily supplant the traditional notion of a one-12 location large centralized generating facility.
13 I wonder if I could also, Your Honor, 14 respond a little bit to Mr. Lighty's answers to your 15 questions. Would that be possible for a few minutes?
16 JUDGE GIBSON: It would be, but hold that 17 for just a minute. I want to make sure that Judge 18 Trikouros gets his questions answered about -- asked 19 about this specific issue, and then we can come back 20 to that, Mr. Lodge.
21 MR. LODGE: All right. Thank you.
22 Judge?
23 JUDGE TRIKOUROS: Yes, you were saying --
24 you were expounding on the significance of the word 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
39 anachronistic in describing baseload power.
1 MR. LODGE: That is correct, and --
2 JUDGE TRIKOUROS: (Audio interference) 3 that it was.
4 MR. LODGE: Well, and as used in the 5
purchase -- pardon me, the purpose and need statement 6
baseload power clearly refers to maintaining Perry as 7
an operating plant, as an operating baseload plant.
8 And I was -- our argument is that that is an 9
anachronistic concept that in effect conceptually I 10 think is -- has held Energy Harbor back from 11 imaginatively writing the environmental report.
12 JUDGE TRIKOUROS: And when I had asked Mr.
13 Lighty whether or not the nature of the purchased 14 power sources mattered, he seemed to -- he basically 15 said that they did not. What mattered was the ability 16 to get that amount of power, that availability factor 17 regardless of the -- where you're purchasing the power 18 from in terms of generation sources. Do you disagree 19 with that?
20 MR. LODGE: Yes. Well, let me -- here's 21 my response. My response is that even if you accept 22 that it is a neutral issue as to the actual source of 23 the electricity, if that is the position of Energy 24 Harbor, then the PJM assurance that there will be 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
40 adequate reliable power for the period beyond 2026 1
should be conclusive. The PJM stated, testified in 2
2019 to the Ohio General Assembly that if Perry were 3
to close -- actually Perry and Davis-Besse -- that 4
they would effectively not be missed, that the day 5
after they close there would be adequate and reliable 6
power available through the regional transmission 7
grid.
8 And so if it is -- if it doesn't matter 9
what the source is, then that fact, PJM's assurance 10 should be noted and perhaps rebutted, but in any 11 event, noted and discussed in the environment impact 12 statement by the staff.
13 JUDGE TRIKOUROS: Would you see any reason 14 why in the context of a purchased power arrangement 15 the source of the generation would be important?
16 MR. LODGE: It would be important to 17 analyze and investigate and disclose for the public to 18 understand and by reading the environmental impact 19 statement that there was genuine consideration of 20 alternatives including a
- defined, a
complete 21 discussion of the no-action alternative.
22 What happens if the plant is closed and 23 you have to deal with the power demand the day after 24 the plant closes? And certainly it would be relevant 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
41 to note the growing use of wind and solar and 1
industrial-grade conservation and innovative other 2
alternatives that are coming on line. None of that 3
appears.
4 JUDGE TRIKOUROS: In their detailed 5
analysis in the environment report the reasons they 6
gave for excluding it was that it had nothing to do 7
with any particular power source. In other words, 8
they didn't say that they required that that power be 9
replaced by using a baseload source, for example. Is 10 that not correct? There is nothing in the exclusion 11 reasons that included anything like that.
12 JUDGE GIBSON: Hold on just a minute.
13 Judge Trikouros, just to make sure the 14 record is clear when you said they, are you referring 15 to PJM or are you referring to Energy Harbor? I want 16 to be sure the record is clear.
17 JUDGE TRIKOUROS: I'm referring to Energy 18 Harbor in their environmental report.
19 MR. LODGE: Well, what they're saying is 20 that there would be environmental
- problems, 21 reliability problems, and baseload problems. And so 22 I don't agree that they are effectively saying that it 23 is of no consequence that baseload power is simply a 24 neutral concept regardless of generating source.
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42 JUDGE TRIKOUROS: Well, the first two 1
equal the third. What you just said, the first two, 2
if they're sufficient, satisfy the third, which what 3
we talked about with Mr. Lighty. In other words, the 4
bottom line is there's a certain baseload power --
5 there's a certain amount of power generated by Perry 6
that has to be available on -- in an availability --
7 with an availability factor of let's say 90 percent.
8 Isn't that all that matters?
9 MR. LODGE: Well, yes, that's all that 10 matters. And if it is all that matters, PJM has --
11 I'm sure would be able to proffer today that there 12 will be adequate baseload-grade power after 2026.
13 JUDGE TRIKOUROS: Okay. We can let Mr.
14 Lighty respond to that, if he wishes.
15 JUDGE GIBSON: Hold on just one second 16 before he goes. I just want to make sure that we're 17 on the same page of the same hymnal because I'm not 18 sure that we are.
19 It seems to me that what Energy Harbor has 20 done is to basically say that there is a need for this 21 facility and that the PJM study does not in any way 22 negate what they have said in their environmental 23 report.
24 It seems to me that you are arguing that 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
43 the PJM study conclusively shows that there is no need 1
for this power and therefore that should have been 2
discussed at length in their environmental report.
3 Now I just want to make sure that we're 4
talking about the same thing. Is that a fair 5
statement though, Mr. Lodge?
6 MR. LODGE: No.
7 JUDGE GIBSON: Okay.
8 MR. LODGE: But what the PJM study --
9 JUDGE GIBSON: Yeah.
10 MR. LODGE: This is, again, I repeat, and 11 I know this is a fine distinction that we are talking 12 about, but what the PJM study basically says is you 13 don't have to worry that there will not be adequate 14 electricity at the times of day and, you know, at the 15 peak demand times and all of that if Perry were to 16 close.
17 And I'd just like to point out that what 18 we are arguing here is what facts would prove our 19 contention is correct, and our position is that the 20 PJM report is certainly significant evidence of the 21 fact that the alternative of no action should and 22 could be seriously considered and not just 23 superficially rejected because of various 24 argumentative points that are raised by Energy Harbor.
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44 JUDGE GIBSON: Okay, thank you, Mr. Lodge.
1 Mr. Lighty, again, I want us to all be on the same 2
page of the same hymnal, and I just have this feeling 3
that we're not. Mr. Lodge seems to -- you heard what 4
he just said. Could you please see if you could all 5
make sure that we're talking about the same thing?
6 What is the significance?
7 You indicated earlier that you didn't 8
think the PJM study was even significant for purposes 9
of the Energy Harbor no action alternative analysis.
10 I would like -- Mr. Lodge clearly thinks that it is 11 central. I would like for you to please explain why 12 you maintain it is not.
13 MR. LIGHTY: Thank you, Your Honor, and 14 I'd like to start by going back to something that I 15 believe Judge Trikouros had said earlier as suggesting 16 that our position was that the ability to purchase 17 baseload power at a certain availability factor was 18 not relevant to the analysis, and I just wanted to be 19 clear that we do believe that is a relevant 20 consideration.
21 And I would point to the conclusion in the 22 Section 7.2.2.1 analysis where it sort of wraps up all 23 of the discussion above, and it says given the 24 uncertainties associated with purchasing baseload 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
45 power, meaning something with a high availability 1
factor similar to Perry, at the scale of Perry's 2
generation capacity on a long-term basis, and the 3
environmental impacts for, you know, developing other 4
sources or relying on fossil fuel generation, but 5
that's the reason that this alternative was screened 6
out for further detailed review.
7 So, we certainly believe that the 8
consideration of the baseload capability of other 9
assets that may be included in a purchase, a power 10 purchase agreement is the area that introduces some 11 uncertainty into the analysis.
12 The NRC has long recognized, and I think 13 even in the case that was cited by the petitioners in 14 their original petition, the Environmental and Policy 15 Center case, the 7th Circuit certainly agreed that the 16 ability to produce baseload energy was a relevant 17 consideration for a purpose and need statement.
18 And that translates into the consideration 19 of whether an alternative is reasonable or not, and 20 the uncertainty here in the purchase power alternative 21 is ultimately what renders that alternative not a 22 reasonable alternative warranting detailed study here.
23 But I would like to also discuss the PJM 24 statement in a bit more detail. First, it wasn't a 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
46 PJM report as far as I'm aware. What's included in 1
the petition is a reference to an isolated comment 2
that was made in a state legislative proceeding five 3
years ago, and that statement primarily focuses on, 4
and I quote, the reliability of the PJM transmission 5
system.
6
- Now, there's a
difference between 7
generation and transmission, and we certainly didn't 8
read this statement to provide any commentary about 9
generation availability, but rather the reliability of 10 the transmission system itself is really what this 11 comment goes to.
12 But more importantly, this comment from 13 the PJM testimony doesn't say anything about a 14 purchase power alternative. It doesn't focus on 15 purchase power as an alternative, and so when we look 16 broader at the no action alternative, Energy Harbor 17 didn't reject any and all alternatives under the no 18 action alternative. It did perform a detailed study 19 of two of those alternatives.
20 And so, you know, to the extent that the 21 petitioners continue to represent that the no action 22 alternative was rejected out of hand, that's just not 23 justified by the record. It's plainly incorrect, but 24 again, the PJM statement isn't focused on the purchase 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
47 power alternative. It's a much broader statement, and 1
it doesn't undermine a single word of the analysis in 2
Section 7.2.2.1.
3 JUDGE GIBSON: Okay, Judge, you got 4
anything else? Please, go ahead.
5 JUDGE TRIKOUROS: No, I think we have 6
enough.
7 JUDGE GIBSON: Do you have anything else?
8 (Simultaneous speaking.)
9 JUDGE GIBSON: Okay, the NRC staff, you 10 guys have been cut out of this discussion. Is there 11 anything material that you would like to add to what 12 Mr. Lighty and Mr. Lodge have been telling us?
13 MR. SIEGMAN: Thank you, Your Honor. I 14 would just like to add that the focus is on the 15 environmental impacts, and that because of the 16 uncertainty that has been brought up, that prevents 17 discussion of the environmental
- impacts, and 18 additionally, that the no action alternative is more 19 than just the purchase power alternative in specific.
20 The environmental report also, as was 21 previously mentioned, discussed 14 other different 22 alternatives, and that purchase power is not discrete 23 because it encompasses all of those other ways of 24 purchasing power of which there is uncertainty, which 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
48 allows for the environmental impacts to be uncertain, 1
because if you don't know the source, then you can't 2
identify the environmental impacts. Thank you.
3 JUDGE TRIKOUROS: Can I --
4 JUDGE GIBSON: Go ahead.
5 JUDGE TRIKOUROS: We hadn't asked you the 6
questions we were asking, we were discussing with the 7
other parties, and I'd like to ask you the one 8
question at least regarding baseload power. Do you 9
agree that the statement baseload power belongs in the 10 power and needs study, what were we calling it, the 11 purpose and needs study or purpose and needs 12 statement?
13 MR. SIEGMAN: Yes, Your Honor. We believe 14 that the 7th Circuit decision explicitly stated that 15 baseload power encompasses a broad enough term to 16 discuss a
wide range of energy generating 17 alternatives.
18 JUDGE TRIKOUROS: And that the term 19 baseload power is only significant in the sense of a 20 certain amount of power at a certain availability?
21 MR. SIEGMAN: Yes, Your Honor.
22 JUDGE GIBSON: Is that it? You got 23 anything else, Judge Arnold?
24 JUDGE ARNOLD: No.
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49 JUDGE GIBSON: Okay, at this point, I 1
think I'd like to take a ten-minute recess, and we'll 2
come back on and we'll start with Contention 3. We'll 3
stand in recess until then. Thank you.
4 (Whereupon, the above-entitled matter went 5
off the record at 2:44 p.m. and resumed at 3:00 p.m.)
6 JUDGE GIBSON: Okay, we're back on the 7
record. Before we get to Contention 3, I've got one 8
more question for the NRC staff counsel and that has 9
to do with the reply.
10 Do you have a position as to whether or 11 not the issues that Mr. Lodge raised in his reply were 12 essentially new matter that should have not been 13 allowed as Mr. Lighty has argued, or do you agree with 14 Mr. Lodge, or do you not take any position?
15 MR. SIEGMAN: Thank you, Your Honor. We 16 don't take any position.
17 JUDGE GIBSON: Okay, thank you. Any more 18 questions about Contention 2? Okay, very well, we're 19 going to turn to Contention 3.
20 MR. LIGHTY: Your Honor? Your Honor, this 21 is Mr. Lighty.
22 JUDGE GIBSON: Wait a minute, Mr. Lighty, 23 yes.
24 MR. LIGHTY: Yes, apologies, Your Honor.
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
50 I just wanted to correct something on the record that 1
was from our earlier discussion regarding the scope --
2 JUDGE GIBSON: Okay.
3 MR. LIGHTY: -- of Energy Harbor 4
Corporation's business model.
5 JUDGE GIBSON: Okay.
6 MR. LIGHTY: First, I did confirm that its 7
wholesale generation business is exclusively nuclear 8
generation, and second, the Energy Harbor Corporation 9
family does include a separate retail business that 10 supplies end use customers.
11 JUDGE ARNOLD: Okay, well, my point is 12 asking that question, I was wondering if you ended up 13 having to purchase power and part of that was coal or 14 gas, would you lose that claim to being carbon-free 15 energy?
16 MR. LIGHTY: I think that's right, Your 17 Honor. Energy Harbor certainly touts its ability to 18 provide carbon-free energy as one of the key 19 attributes of its business.
20 JUDGE GIBSON: Judge Trikouros, do you 21 have anything further on Contention 2?
22 JUDGE TRIKOUROS: No, thank you.
23 JUDGE GIBSON: Okay, very well. Thank you 24 for that clarification, Mr. Lighty. We'll now turn to 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
51 Contention 3. Mr. Lodge, as Contention 3 was 1
initially proffered by you, it was quite broad, I 2
think we could all agree, and it encompassed a number 3
of matters that I suspect even you would now have to 4
concede were fully addressed in the 2013 generic 5
environmental impact statement for nuclear operating 6
license renewals such as we have here today with Perry 7
Unit 1. And because they were addressed in that 2013 8
generic environmental impact statement, I'm sure 9
you're aware we cannot consider them today.
10 But if I understand correctly from reading 11 your reply, you're seeking to use Contention 3 to 12 challenge Energy Harbor's environmental report for 13 failing to address possible additive or synergistic 14 effects of tritium and other radionuclides released by 15 Perry Unit Number 1 into Lake Erie. Is that correct, 16 sir? Mr. Lodge, I'm terribly sorry to have to tell 17 you this, but you're muted. You're going to have to 18 start over, sir.
19 MR. LODGE: Ah, yes. I think that's one 20 of the new ticks of the era. Thank you, sir.
21 JUDGE GIBSON: Yes, sir. It's all right.
22 MR. LODGE: I concur with your statement 23 up to a point. We also believe that there may be a 24 need, that there is a need for analysis of synergistic 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
52 effects of radionuclides with non-radionuclide 1
chemistry pollutants existing in the lake.
2 JUDGE GIBSON: Okay, so let me see if I 3
can just -- when I said the synergistic or additive 4
effects of tritium and radionuclides, you're saying in 5
conjunction with other pollutants then? Is that a 6
fair statement?
7 MR. LODGE: Yes.
8 JUDGE GIBSON: Okay.
9 MR. LODGE: Both your statement and my 10 proffered supplement, I think, is what we --
11 JUDGE GIBSON: Okay.
12 MR. LODGE: -- contend.
13 JUDGE GIBSON: Very well, thank you. As 14 I suggested earlier, it's very important just to make 15 sure that we're all on the same page of the same 16 hymnal, because otherwise, we're just talking past 17 each other, so thank you.
18 With Contention 3 narrowed from what it 19 was originally proffered, your answer seems to suggest 20 that -- let me rephrase this. NRC staff, I want to 21 ask you this question, so be sure and unmute yourself.
22 The petitioner's answer seems to suggest 23 that this portion of Contention 3 in your estimation 24 might have been admissible if only petitioners had 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
53 supplied adequate supporting data, but that in fact, 1
they had failed to provide adequate supporting data, 2
and so for that reason, the contention, even as 3
narrowed, would be inadmissible. Is that a fair 4
statement?
5 MS. CARPENTIER: In terms of the 6
contention pleading standards, this part of the 7
contention is not barred by the GEIS. It's not a 8
Category 1 issue in the generic environmental impact 9
statements, so we're not dealing in this case with a 10 challenge to an NRC regulation.
11 We then turn to 2.309 in the contention 12 pleading standards in that regulation, and for this 13 particular issue, the parts of it that are relevant 14 are five and six, those that relate to stating a 15 genuine dispute with the application and the 16 supporting reasons for that dispute.
17 JUDGE GIBSON: Okay, very well, thank you.
18 And when you referred earlier to a GEIS, you were 19 referring to the generic environmental impact 20 statement for the renewed operating licenses, is that 21 correct?
22 MS. CARPENTIER: That's correct. It's the 23 2013 generic environmental impact statement that is at 24 NUREG, oh, it's, the NUREG number is cited in our 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
54 pleading and it's codified in Appendix 2, Part 51 of 1
Title 10 of the CFR.
2 JUDGE GIBSON: Very well. I just wanted 3
to be sure that the record was clear, especially for 4
purposes of our court reporter, who may not be 5
familiar with that. So, can you elaborate for us on 6
why Contention 3 might have been admissible, but can't 7
be because it did not have adequate factual support?
8 MS. CARPENTIER: As we said in our 9
pleading, this particular claim is not covered in NRC 10 regulations or guidance, and we are therefore 11 addressing it as a cumulative impacts claim. That is 12 a Category 2 issue in the GEIS, again, generic 13 environmental impact statements, and in the Appendix 14 in Part 51, and therefore is not automatically out of 15 scope before we even start.
16 So, then we have to look at specifically 17 what's in there, and when we looked at what was in 18 there, we did not see a discussion of what the 19 cumulative or synergistic impacts could have been for 20 tritium. You know, the petitioners mentioned, for 21 example, bioaccumulation.
22 And yes, they've discussed, especially in 23 their reply, mercury, and PCBs, and bioaccumulation 24 and so forth, but have not discussed anything of that 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
55 nature with respect to tritium, and that was our 1
reason for saying they have not supported their 2
contention or represented that they have a genuine 3
dispute with the application.
4 JUDGE GIBSON: Thank you very much. Mr.
5 Lodge, now that you've heard the explanation by 6
counsel for the NRC staff as to why you failed to 7
provide adequate supporting data for your claim that 8
the environmental report fails to address the additive 9
or synergistic effects of tritium and other 10 radionuclides released by Perry Unit 1 into Lake Erie, 11 what reason can you give us for why the NRC staff is 12 wrong in this regard?
13 MR. LODGE: Well, Your Honor, we stand by 14 the statements made in the reply at pages nine and 15 ten. They're, in fact, in our original petition. We 16 cite at page 41 in our original petition the technical 17 support, including statements from the GEIS, from 18 NUREG 1437, the generic environmental impact statement 19 for license renewal of nuclear plants, and I 20 reproduced the text from page 41 of the initial 21 petition at page nine of our reply, including 22 footnotes.
23 The discussion basically in the GEIS says 24 that radionuclides can be environmentally significant 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
56 because they have a strong tendency to adsorb, 1
A-D-S-O-R-B, and the particles suspended in settled 2
solids can accumulate in biological organisms or be 3
concentrated through trophic transfers. That is 4
straight out of the NRC's generic statement. We 5
believe that that sets up a foundation.
6 Further, of course, as counsel for the NRC 7
mentioned, we had articulated in our first petition, 8
in the original petition at page 45, the recitation of 9
the non-radioactive contaminants that are pretty 10 persistent throughout Lake Erie, including PCBs, 11 mercury, DDT, chlordane, and dieldrin, which are, of 12 course, pesticides.
13 We believe that there is certainly support 14 factually that we provided, and we also argued at 15 pages 44 and 45 of the petition the relevance in terms 16 of cumulative impacts applying NEPA regs and case law.
17 JUDGE GIBSON: Very well. I think that 18 some of our judges have some questions. In 19 particular, Judge Trikouros is pulling on my arm, so 20 I assume he's really got something here for you.
21 JUDGE TRIKOUROS: We have been somewhat 22 confused by the three words that are used throughout 23 the pleadings, specifically cumulative, synergistic, 24 and additive. In various locations, they are used 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
57 interchangeably. In other locations, the word 1
synergistic seems to have its own definition, which 2
includes this adsorption to PCBs, or other particulate 3
matter, I assume. And can we get from the parties a 4
quick, clear understanding of the difference between 5
cumulative, synergistic, and additive?
6 JUDGE GIBSON: Who would you like to 7
answer that question first, Judge Trikouros?
8 JUDGE TRIKOUROS: Mr. Lodge --
9 JUDGE GIBSON: Okay.
10 JUDGE TRIKOUROS: -- is up front, so we 11 might as well start with him.
12 MR. LODGE: Thank you. Synergistic, 13 without a dictionary sitting in front of me, 14 synergistic refers to the effect that, the phenomenon 15 noted in chemistry where two elements or two compounds 16 might be added together, and the result is quite 17 different from the characteristics, the traits of the 18 original two compounds or elements, so it produces an 19 entirely new chemical product or result.
20 Additive is simply where you are 21 introducing a new chemical, element, or compound into 22 a preexisting, in this case, soup of pollutants in 23 Lake Erie. Cumulative is what, is the effects over 24 time of recurring activity and/or expanded or new 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
58 activity. That's all I have.
1 JUDGE GIBSON: Okay, thank you, Mr. Lodge.
2 Before we go on, let's see. Ms. Carpentier, would you 3
mind letting us know if you agree with Mr. Lodge or 4
wish to take issue with him in any way so, again, we 5
can make sure we're talking about the same thing?
6 MS. CARPENTIER: Thank you, Your Honor.
7 In the context of an NRC NEPA analysis, we use 8
cumulative in a very specific way, and that is that it 9
refers to the impacts of the plant that's got a 10 licensing action pending before us, plus other past, 11 present, and reasonably foreseeable impacts on the 12 same resource.
13 So, in this case, if the plant is putting, 14 say, warm water into the lake, then we would look at 15 the warm water from the plant, plus all of the other 16 sources of warm water being emitted into the lake from 17 other generating sources, whether or not licensed by 18 the NRC or any other federal agency.
19 One thing that cumulative impacts are not 20 under the license renewal generic environmental impact 21 statement is additional impacts from operating the 22 plant for another 20 years. Those are already built 23 into the impact levels that are codified in the 24 appendix to 10 CFR, Part 51.
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59 So, those are considered direct impacts 1
from the plant, and then we would look at cumulative 2
impacts by adding those to the impacts of all of the 3
other facilities that use the lake in some way and 4
have an impact on the lake.
5 As far as additive and synergistic, it is 6
Mr. Lodge's contention. I don't want to speak for him 7
on what he means by those words, but I think that 8
there is a certain lack of clarity about what is meant 9
by those words with respect to tritium in this 10 contention.
11 JUDGE GIBSON: Okay, all right, Mr.
12 Lighty, you get a chance now. Do you have anything to 13 add to what has just been said about what these three 14 terms mean?
15 MR. LIGHTY: Thank you, Your Honor. We 16 generally share the staff's view that the term 17 cumulative impact is a term of art that is used in 18 NEPA space, and is discussed in NRC regulations, here 19 in particular at 10 CFR, Section 51.53(c)(3) Romanette 20 O, and those really are focused on past, present, and 21 reasonably foreseeable future actions, whereas the 22 interchangeable use of cumulative and bioaccumulative, 23 and synergistic throughout the petition and the reply, 24 the meaning of those terms is not readily clear to us.
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60 JUDGE GIBSON: Okay, thank you. Go ahead, 1
Judge Trikouros. I just wanted to be sure that we 2
know if we're all hopefully talking about the same 3
terms.
4 JUDGE TRIKOUROS:
- Right, the only 5
clarification I wanted was actually made by Ms.
6 Carpentier is are we talking specifically about 7
tritium? Because when you -- it's my understanding 8
when you use terminology like adsorb, it might apply 9
to various radionuclide emissions like cesium, or 10 strontium, or many others, but it would not 11 necessarily apply to tritium, and I want to understand 12 clearly if we're talking specifically about tritium.
13 JUDGE GIBSON: Is that a question for Mr.
14 Lodge?
15 JUDGE TRIKOUROS: That question is for Mr.
16 Lodge --
17 JUDGE GIBSON: Okay.
18 JUDGE TRIKOUROS: -- specifically, yes.
19 JUDGE GIBSON: Okay, thank you. Mr.
20 Lodge, you're on.
21 MR. LODGE: Thank you for the question.
22 The contention is certainly about tritium and 23 associated radionuclides. There was mention in the 24 GEIS that tritium is essentially a marker kind of 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
61 chemical, a canary in the coal mine sort of indicator 1
that there may be other radionuclides present in an 2
emission event, whether it be airborne or waterborne.
3 At least that was my understanding of the GEIS.
4 So, yes, we certainly -- again, what our 5
contention is, is that there is no analysis of the 6
potential synergistic effects. We are not saying that 7
-- we are not providing some sort of conclusive or 8
juried scientific research that says there is. We 9
believe that it must be investigated and disclosed 10 under NEPA in the environmental document.
11 JUDGE GIBSON: Okay, I'm going to jump in 12 here. I know Judge Trikouros and Judge Arnold have 13 some more questions for you about this, but I, you 14 know, I guess what I'm trying to understand is you're 15 saying then that tritium is a sort of indicator 16 pollutant of larger radiation emissions or discharges, 17 and that --
18 But because clearly, I think, Judge 19 Trikouros advised me earlier today, tritium can't 20 adsorb onto something else because it's basically 21 water. So, it's just hydrogen and it doesn't exist 22 enough to adsorb, but you're saying that measured, it 23 would indicate that that was present. Is that 24 correct, sir, that other things are present that are 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
62 of concern? Is that what you're saying?
1 MR. LODGE: Yes, I'm referring to the 2
excerpt from the GEIS that we cited at page 41 of our 3
original petition, which discusses this. The problem 4
with tritium and what many commentators believe makes 5
it so dangerous is precisely because it is absorbed 6
and treated in the biosphere, and in human bodies, and 7
flesh, and in plant tissue as water, and it has 8
certain chemical properties that can induce disease or 9
illness of the organism.
10 JUDGE GIBSON: So, is that adsorb or 11 absorb? I'm just trying to understand.
12 MR. LODGE: What I just described was 13 A-B-S-O-R-B.
14 JUDGE GIBSON: Okay, okay.
15 MR. LODGE: I'd also point out that 16 tritium becomes part of the hydrogen in the water 17 molecule, and thus remains present, and as I said, it 18 poses an environmental and biological health risk.
19 JUDGE GIBSON: Very well, okay, thank you.
20 I just wanted to be sure that, again, when we start 21 talking about things, we're talking past each other if 22 we don't know exactly what you're suggesting and what 23 other parties are saying you're saying, and we got to 24 get that nailed down. Go ahead, I'm sorry. Go ahead, 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
63 Judge Trikouros.
1 JUDGE TRIKOUROS: Do you want to proceed?
2 Do you want to go next or should I?
3 JUDGE ARNOLD: Why don't you finish up 4
yours, then I'll --
5 JUDGE TRIKOUROS: Well, I'll ask another 6
question and perhaps we can go on that way. I have a 7
question to the petitioner. On page 32 actually of 8
the petition, there's a reference to radionuclide, 9
specifically tritium monitoring frequency, and it's 10 within the context of programs such as the groundwater 11 protection program and that sort of thing.
12 And it makes a statement that the 13 monitoring is not frequent enough. It doesn't really 14 address the issue in any more detail than that. I'd 15 like to just get your comment regarding what that 16 means and, you know, why you said it.
17 MR. LODGE: Thank you, sir. The specific 18
-- I think that program actually cleared itself up.
19 We had -- I'm looking for the passage, but there were 20 12 monitoring wells, and in the environmental report, 21 Energy Harbor, I think, referred to ten of them as 22 being tested semiannually and two of them being 23 tested, I think it may have said biannually.
24 And I saw in a footnote in Energy Harbor's 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
64 response that that was a typographical mistake. That, 1
I believe, was, from my recall when I was drafting the 2
petition, that was the specific thing it was referring 3
to. There was no explanation in the environmental 4
report why the distinction between the ten wells and 5
the two wells and the testing frequency.
6 JUDGE TRIKOUROS: So, let me understand 7
this. Then all of the monitoring that's done, and 8
we're talking about wells, we're talking about 9
piezometers, we're talking about a number of other 10 things that are identified, you don't really have any 11 problem with the current monitoring frequency in the 12 program?
13 MR. LODGE: I shouldn't -- we do have 14 problems with it because of the inherent difficulty in 15 identifying sources of tritium leakage, but beyond 16 that, because of the frequency and the growing 17 frequency, looking at the specific track record at 18 Perry of significant tritium leakages, coupled with a 19 few references where it is clear that Energy Harbor 20 has not conclusively determined the source of the 21 leakage --
22 Sometimes they do and sometimes they 23 don't, and I think that -- that's my understanding 24 with tritium problems at a number of other nuclear 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
65 power plants, but what we are saying is that there may 1
be a serious problem in insufficient analysis and 2
testing at various parts and locations of the plant 3
simply because of the mystery factor of source.
4 MR. LODGE: Yeah, well, what's confusing 5
to me anyway is that the Section 3.6.2.4 of the EIR 6
discusses the groundwater protection program, but 7
Section 3.6.4.2 discusses the groundwater quality, 8
which is where all of the monitoring frequency is, so 9
it can get confusing, there's no doubt, the way it's 10 laid out, but I understand then what you're saying.
11 Mr. Lodge, did you want to -- Mr. Lighty, did you want 12 to comment on it?
13 MR. LIGHTY: I don't have much more to 14 add, Your Honor. As Mr. Lodge acknowledged, we did 15 put in Footnote 107 of our brief that there was a 16 clerical error in the application regarding the 17 monitoring frequencies, and the reason that there are 18 a couple of wells that have a different frequency is 19 due to the recharge rate of the water entering the 20 wells. It doesn't recharge enough to sample at the 21 same frequency as the other wells, and that's the 22 reason they're at different frequencies.
23 JUDGE TRIKOUROS: All right, the -- in 24 that same page 32 of the petition, it discusses the 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
66 aging of the power plant infrastructure and seems to 1
indicate that -- and again, I'm sorry, this is for Mr.
2 Lodge, excuse me.
3 It's discussing the aging of the power 4
plant infrastructure and predictable deterioration of 5
pipes and various fluid containers, but it does not 6
acknowledge that there are one or more programs in 7
place as part of the license renewal process to ensure 8
that that does not happen or that that happens 9
minimally.
10 I wanted to understand from Mr. Lodge, 11 were they ignoring those programs or did they have a 12 problem with those programs? There's nothing further 13 discussed in the petition to give any indication of 14 that.
15 MR. LODGE: Well, as I said earlier, there 16 is a commonly recurring problem, it seems, among aging 17 nuclear power plants with tritium emanating sometimes 18 from sources that are not well understood, emanating 19 different intensities at different times of the year.
20 There's tritium leakage that is moving in groundwater 21 or not. There's all kinds of difficulties.
22 As I said earlier, the problem is that 23 there are unknowns and we are looking at an 24 approaching 40-year operational life reactor that is 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
67 being proposed for an additional 20 years of 1
operation, and we think that the bathtub curve 2
problems where the older the machine gets, the more 3
possibilities of breakdowns, and the greater the 4
potential for large and significant structural or 5
other kinds of operational problems gets. Thank you.
6 JUDGE TRIKOUROS: Okay, so let me go on.
7 JUDGE GIBSON: Before you do, could you 8
just explain to me what a bathtub curve is? I just 9
want to be sure that -- you know, not everybody knows 10 what that is.
11 MR. LODGE: Certainly, it is, the bathtub 12 refers to the shape of the curve, but it is the theory 13 that when you have a new complicated machinery type of 14 device, that it will tend to operate nicely, and 15 that's why warranties are limited, Your Honor. It 16 will operate adequately or perfectly for a certain 17 period of time, although there will be sometimes 18 shakedown problems in the nuclear industry. I recall 19 many years ago Davis-Besse, for instance.
20 Then there is a period, sort of the bottom 21 of the bathtub, if you will, where the plant operates 22 in a relatively stable and reliable fashion, and then 23 as aging, and deterioration, and the need for 24 replacement sometimes of parts and components occurs, 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
68 you begin to have an increasing number of problems.
1 The best analogy that one hears is in 2
reference to an automobile and how, you know, for the 3
first two years when you don't make claims under your 4
warranty because the thing's operating well, that's 5
fine, but then you start reaching the middle period 6
where there may or may not be problems, and then you 7
have a steady decline in reliability and magnitude of 8
breakdowns.
9 JUDGE GIBSON: Okay, thank you. Okay, now 10 I know what a bathtub curve is, I'll be able to sleep 11 tonight. Go ahead.
12 JUDGE TRIKOUROS: Okay, and again, I'm 13 mentioning this because it is in your petition, so, 14 and I would like to get an understanding of it. This 15 is page 43 of your petition, or page 41 of your 16 petition discusses the fact that the tritium 17 environmental situation at Perry has improved quite a 18 bit in the period from 2013 to 2023, and on page 43 of 19 your petition, you're commenting on that, and while 20 you are saying it's good news certainly, but you're 21 attributing to it other potential reasons.
22 One of them is, I think it had to do with 23 nuclear testing, tritium from nuclear tests, and that 24 the tritium might be decaying. You also are 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
69 attributing it to things such as that the leakage is 1
happening beneath the plant in areas where groundwater 2
is not moving, and therefore I think what you're 3
suggesting is that it's there, but not being measured.
4 And there's no mention made at all of any 5
kind of programs at the plant, specifically the 6
groundwater protection
- program, which in my 7
understanding was implemented in 2006, and I was 8
looking for perhaps for some comment from you 9
regarding, you know, whether or not these programs are 10 adequate or if you have a problem with any of these 11 programs, but I found no such thing in your petition.
12 Maybe you can explain what this, you know, this whole 13 idea of the tritium getting better, is there some 14 connection to the program such as the groundwater 15 protection program?
16 MR. LODGE: I have no idea if there's a 17 connection, and the main source before Perry of 18 tritium in Lake Erie was probably, almost undoubtedly, 19 was from weapons tests, but that has been nigh under 20 40 years, and the half-life of tritium is, I believe, 21 about 12 years.
22 And so, there is, of course, inevitable 23 and steady breakdown, decay of the tritium that came 24 from many sources, but the problem is that if you work 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
70 out the mathematics of the decay, the half-life decay 1
cycle, it is probable that --
2 I would imagine that there will be 3
measurable amounts of tritium -- if Perry stops 4
producing, generating any that was depositing into the 5
lake today, it would still take in excess of a 6
century, I would think, for things to get to a 7
background level.
8 So, what I was simply saying was it's good 9
news that the tritium levels are dropping in recent 10 years, but it's not clear exactly why that's 11 happening. I don't know, for instance, whether Energy 12 Harbor can take credit for having contained the 13 problem, especially in light of the stuff we mentioned 14 in the petition earlier regarding leakages.
15 I'm looking for the exact pages, Your 16 Honor. I'm kind of looking at pages 39 and 40 of the 17 petition. Right down to June 22 of 2023, the tritium 18 activity level from piezometer 221 was determined to 19 be 40,300 microcuries per liter, and subsequent tests 20 have confirmed continued elevated levels.
21 So, again, we're looking at a difficult to 22 diagnose problem because there are many different 23 locations, some of them probably not accessible 24 without great expense at Perry, that may be emitting 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
71 tritium.
1 JUDGE TRIKOUROS: All right, so, but in 2
all of this discussion, you're not trying to identify 3
a problem, is that correct? I'm looking to see if 4
there's a problem that you're identifying which should 5
be dealt --
6 (Simultaneous speaking.)
7 MR. LODGE: I understand your question, 8
but I essentially -- we do believe that there is a 9
problem. And as Judge Gibson noted at the outset, 10 we're not contesting anymore those parts of the 11 tritium problem that are effectively shielded from any 12 kind of challenge by the GEIS, but we are looking at 13 and advocating for the synergy additive analysis.
14 JUDGE TRIKOUROS: Okay, all right, thank 15 you. Do you want me to continue?
16 JUDGE GIBSON: Yeah.
17 JUDGE TRIKOUROS: All right, in the reply 18 at page nine, I believe, there is a discussion 19 regarding the -- you were making a response, 20 basically, to an NRC assertion, and you're saying 21 that, in their answer, and you're saying that you, the 22 petitioner, indisputably did submit technical support 23 for your claims that synergistic effects are an issue.
24 And the -- in that discussion, it's 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
72 pointed out that all of the releases are within either 1
an NPDES permit or an NRC, or within NRC regulations 2
for plant releases, so they're not -- they're what I 3
would call normal releases. So, if indeed these are, 4
we are discussing normal releases, doesn't the fact 5
that they are covered by the permits and the NRC 6
regulations basically make them unnecessary to be 7
evaluated for anything, let alone synergistic effects?
8 MR. LODGE: I'm not sure I see on page 9
nine what you're talking about by way of permitting 10 limits, but number one, just because it's within 11 permitted limits doesn't mean that tritium 12 contamination and pollution is a good thing or a 13 healthy thing.
14 Number two, as I indicated, we cited in 15 the initial petition self-reported recent events of 16 tritium release, or at least tritium contamination 17 emission from the plant that Perry itself and Energy 18 Harbor has maintained and reported on. So, I am not 19 sure if that answers your question, sir.
20 JUDGE GIBSON: Could I interject here?
21 Let me ask the NRC staff. First of all, in so far as 22 the discharges or emissions from the Perry Unit 1 23 facility comply with national pollutant discharge 24 elimination system permits under the Clean Water Act, 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
73 or comply with NRC standards/rules governing emissions 1
or discharges, is that of any significance in terms of 2
the environmental report and does that need to be 3
addressed other than to say we're complying with them?
4 MS. CARPENTIER: We definitely look to 5
that when looking at the magnitude of environmental 6
impacts, and compliance with other statutes, even 7
statutes that NRC is not the responsible agency for, 8
is definitely something that we look at when we put 9
together our environmental impact statements.
10 JUDGE GIBSON: It's something you look at.
11 Okay, fair enough, but I'm talking about other than to 12 say yes, we're meeting all of our NPDES permits, we're 13 meeting all NRC discharge and emission standards, is 14 there more that needs to be addressed by the applicant 15 in the environmental report?
16 MS. CARPENTIER: Generally not. I think 17 that if they will, if they have explained and 18 justified that they're in compliance with all of their 19 permits and licenses for pollutants, that would go 20 towards a finding in an environmental impact statement 21 that the impact is small.
22 JUDGE GIBSON: Okay, fair enough, and let 23 me ask Mr. Lighty now the same question. Is there 24 anything more that would need to be done by the 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
74 applicant for a renewal other than to say we're in 1
compliance with our NPDES permits and our discharge 2
and emission requirements under the NRC rules?
3 MR. LIGHTY: Your Honor, I would say that 4
we certainly provide more information than that in the 5
environmental report. For example, in Chapter 3, you 6
know, we do disclose information about historical 7
releases and, you know, we provide background 8
information that may be relevant to the broader 9
discussion of impacts, but we agree with NRC staff 10 counsel, and I believe it is codified in Part 51 that 11 compliance with release limits equals a determination 12 of small impact on that issue.
13 JUDGE GIBSON: Thank you.
14 MS. CARPENTIER: I would add that NRC also 15 conducts audits and other independent evaluations to 16 look behind that representation, and that they are 17 currently at the plant now this week doing an 18 environmental audit.
19 JUDGE GIBSON: Okay, great, we have 20 real-time reporting of this. Okay, go ahead.
21 JUDGE TRIKOUROS: What I'm hearing is that 22 if the plant meets its NPDES permits and its, you 23 know, Part 20 release limits, that there is no further 24 requirement to do what is being referred to as 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
75 synergistic analyses in the context of this 1
proceeding. Is that a correct statement?
2 MS. CARPENTIER: There is no language in 3
any of our regulations or guidance that covers this 4
particular assertion by the petitioners.
5 JUDGE TRIKOUROS:
- Okay, and I'm 6
distinguishing that specifically from cumulative 7
effects which are required to be evaluated.
8 MS. CARPENTIER: Yes, exactly. This is 9
something that was, you know, we looked and we saw, 10 you know, is there legal authority for this claim, and 11 we did not find anything, so we treated it as 12 essentially cumulative impacts.
13 JUDGE TRIKOUROS: So, would there be any 14 guidance anywhere on how one might perform a 15 synergistic analysis? Is there any sort of NRC 16 document, or a document from EPA or anywhere that 17 might explain that? And I'll ask that same question 18 to Mr. Lodge after you're finished.
19 MS. CARPENTIER: Thank you, Your Honors.
20 I have a client that has been giving me his views on 21 this, and we definitely have guidance for cumulative 22 impacts. We do not have anything for synergistic.
23 JUDGE TRIKOUROS: All right, Mr. Lodge, do 24 you have any comment on that?
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
76 MR. LODGE: I don't know of any guidance, 1
but I do know that there are many qualified chemists 2
in the country and that there is certainly an 3
understanding within that profession of synergy and 4
certainly the capability to analyze it.
5 I'd also just like to point out that we 6
cited the Kleppe v. Sierra Club decision as authority.
7 Kleppe, among other things, requires consideration of, 8
quote, cumulative or synergistic environmental impact, 9
and so whether or not the NRC has guidance is perhaps 10 not as important as the fact that NEPA appears to have 11 been interpreted to require synergistic analysis.
12 I'd also like to just make the point, Your 13 Honor, that the most recent tritium emission is twice, 14 more than twice the U.S. EPA drinking water standard 15 for tritium. It's 40,300 microcuries per liter and it 16 was in June 2023.
17 And as we noted at page 40 of our initial 18 petition, at least as of October 2023, what, four 19 months ago, the groundwater, pardon me, the detection 20 of the source is unresolved, which I assume means 21 unknown. The groundwater in the area moves toward the 22 site's underdrain system and will be discharged via a 23 permitted pathway.
24 And I note in the petition we say that's 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
77 code for discharge into Lake Erie ultimately. We 1
believe that may be true. So, what you have is a very 2
fresh incident of exceeding the U.S. EPA drinking 3
water limit, which is the only limitation, and is not 4
exactly, as I understand it, codified in any way into 5
NRC regulations. Thank you.
6 JUDGE GIBSON: Let me add a question if 7
you don't mind, Judge Trikouros. I just want to see 8
if I can drill down on this a little bit more. When 9
EPA sets its NPDES discharge limitations and when the 10 NRC sets its release, and emission, and discharge 11 standards, am I incorrect in assuming that that would 12 have included a synergistic analysis insofar as that 13 particular discharge or emission limit would have been 14 safe for the environmental essentially no matter what 15 it might be mixing with in another, in a receiving 16 water body, or in the air, or in groundwater?
17 I'm just asking a question, Mr. Lodge.
18 I'm not saying your contention's admissible or not.
19 I'm trying to understand how that is a problem if, in 20 fact, those discharge requirements, those discharge 21 standards, emission standards, release standards have 22 been studied?
23 They're health-based standards and they're 24 not occurring in a vacuum. They're assuming that 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
78 you're going to have some kind of a receiving water or 1
receiving atmosphere into which that would be 2
discharged, released, emitted. And so, if you were to 3
comply with that
- standard, is there already 4
essentially a synergistic analysis that has been done 5
in setting that standard at the beginning?
6 MR. LODGE: I don't know the history of 7
the U.S. EPA rule and --
8 JUDGE GIBSON: Okay.
9 MR. LODGE: -- and I, frankly, doubt it or 10 I think we would collectively among us possibly know 11 of it, know --
12 JUDGE GIBSON: Yeah.
13 MR. LODGE: -- know the answer to your 14 question, whether it happened or not. And, I mean, 15 beyond that, you're talking about a substance that 16 there's no -- as the BEIR VII says, that when it comes 17 to radiation releases and exposures, there is no 18 inherently safe level, and given that tritium crosses 19 the placenta, is more readily absorbed into --
20 I think I read in Dr. Arjun Makhijani's 21 book that we cite in the petition that tritium is 22 50,000 times more absorptive than something like 23 plutonium. So, you're talking about something where 24 if there hasn't been synergistic analysis done of 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
79 emissions into bodies of water from nuclear power 1
plants, perhaps there needs to be.
2 JUDGE GIBSON: Okay, well, I mean, I could 3
certainly appreciate the fact that if you were having 4
a concentration that was going directly into drinking 5
water, you know, or were going into some device that 6
was going to be inserted in somebody that would go 7
across their placenta, I guess I could understand 8
that, but I'm talking about a release into the 9
environment, okay, not into one of these different 10 standards for drinking it or whatever it might be.
11 I'm talking about just into the environment as a 12 general rule.
13 Why don't we hold off a minute and let's 14 go to Mr. Lighty, he hasn't had a chance to talk in 15 the last few minutes, and see if he can help us with 16 this particular issue.
17 Mr. Lighty?
18 MR. LIGHTY: Thank you, Your Honor.
19 A lot of catching up to do here on a 20 number of topics.
21 JUDGE GIBSON: I think what we're talking 22 about at this moment is the question of the standards, 23 the discharge, emission, and release standards set by 24 EPA and the NRC, and the extent to which do they 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
80
- assume, essentially, a
synergistic, possible 1
synergistic effect of those constituents? That was, 2
I think, where all this began.
3 MR. LIGHTY: Right. Yes. And thank you, 4
Judge Gibson.
5 You're absolutely right that there is a 6
distinction to be made between a drinking water 7
standard that's not applicable to the event that Mr.
8 Lodge was just talking about. I think the Petitioners 9
recognize that. On page 38 of their petition, they 10 note that the event pertained to a voluntary threshold 11 for reporting a non-drinking water pathway, and that's 12 a very important distinction to understand.
13 The EPA's drinking water limit applies to 14 something very different, and as Mr. Lodge noted, this 15 release would be captured in the under-drain, and 16 then, released through a permitted pathway. And that 17 pathway would be subject to the EPA's limits if it is 18 going into a drinking water source.
19 So, more fundamentally, if the issue is 20 that Mr. Lodge has a problem with the EPA's or the 21 NRC's discharge standards because they did not 22 consider synergistic effects, that argument would be 23 outside the scope of this proceeding. We're not here 24 to litigate whether the codified thresholds are good 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
81 enough or not because they did or did not consider 1
synergistic effects.
2 But, on that topic, I think it's important 3
to recognize that this issue actually has been 4
discussed and analyzed in the GEIS. As Mr. Lodge 5
noted in his petition --
6 JUDGE GIBSON: When we say, "GEIS," you're 7
talking about the Generic Impact Statement issued in 8
2013 for operating license renewals, correct?
9 MR. LIGHTY: I am, with one distinction 10 here. The version that Mr. Lodge cited in both of his 11 briefs is actually Draft Revision 2 to the GEIS, the 12
'22 draft version which has not yet been finalized.
13 And according to a statement --
14 JUDGE GIBSON: (Audio interference),
15 correct?
16 MR. LIGHTY: Yes, and he's pointing to a 17 statement on page 3-58 of that draft version. And he 18 says, "This is the technical basis for my synergy 19 claim." And it's a discussion about how radionuclides 20 can absorb into other particles and accumulate in 21 biological organisms.
22 But, you know, that statement actually 23 proves that this issue has, in fact, been analyzed.
24 The same recognition is provided in the current GEIS, 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
82 the 2013 Generic Environmental Impact Statement for 1
operating license renewal, at page 3-75.
2 And the impacts of that information are, 3
then, analyzed on page 4-105, again, of the current 4
2013 GEIS, where the NRC acknowledges that aquatic 5
biota can be expose to radiation from radionuclides 6
that have combined with other particles and that can 7
accumulate in various tissues. And it even discusses 8
the difference between various radionuclides, 9
including tritium specifically, but it distinguishes 10 among them in that analysis.
11 And in full view of that information, the 12 NRC concluded, on page 4-107, that the impact of 13 radionuclides on aquatic biota was a Category I issue.
14 So, this concept where Mr. Lodge is suggesting that 15 this discussion in the GEIS is the technical basis for 16 his synergy claim, that's been analyzed as a Category 17 I issue in the GEIS and the impact conclusion is 18 codified.
19 So, just more broadly, the suggestion that 20 this hasn't been analyzed at all just misses the mark.
21 JUDGE GIBSON: So, you're saying that the 22 synergistic effect of these constituents is addressed 23 in the 2013 or the 2022 draft, or both? Or neither?
24 MR. LIGHTY: In both, Your Honor. The 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
83 analysis is contained in both. And I would say yes, 1
to the extent that the Petitioners' synergy argument 2
is based on that passage from the GEIS that they quote 3
in Chapter 3. The impact analysis is, in fact, 4
provided in Chapter 4 for that exact text that Mr.
5 Lodge continues to cite, including on page 9 of the 6
Reply. The impact analysis has been conducted on that 7
issue.
8 JUDGE GIBSON: Okay. Counsel for the NRC 9
Staff, hopefully, you have had a chance to get some 10 flash cards from your clients across the table there.
11 Can you give us any more insight than Mr.
12 Lighty just gave us about the extent to which the 13 synergistic effects of these constituents have been 14 addressed or not in either the 2013 or the 2022, or 15 both? That is the 2013 GEIS or the 2022 Draft GEIS.
16 MS. CARPENTIER: I think that it's 17 important to start with what is the premise here.
18 Because we are, I think, still using different 19 definitions of synergistic.
20 I do not think that we have anything 21 addressing the notion of whether tritium interacts 22 with mercury, say. That's just not there, and the 23 Petitioners have not presented anything of that 24 nature, either. And honestly, until we saw the Reply, 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
84 we weren't even sure if that was an argument they were 1
trying to make.
2 However, the phenomena that different 3
radionuclides move in the environment in different 4
ways, and that that is built into the calculation of 5
the impact statement, impact levels in the GEIS -- for 6
example, to aquatic biota -- yes, we do have analyses 7
like that.
8 But if we're talking about the other, if 9
we're talking about entirely different pollutants that 10 are not NRC regulated or that behave in very different 11 ways from tritium, then, no, we do not.
12 JUDGE GIBSON: Okay. All right.
13 Mr. Lodge, before I turn this back over to 14 Judge Arnold and Judge Trikouros, because I know they 15 have a lot of questions, do you have anything more 16 that you need to tell us about the synergistic effects 17 in the 2013 GEIS or the 2022 Draft GEIS?
18 MR. LODGE: That, certainly, this does 19 require more study and we believe that this is the 20 appropriate vehicle to do it in an Environmental 21 Impact Statement.
22 Thank you.
23 JUDGE GIBSON: Okay. Thank you.
24 Okay, Judge Trikouros, did you have some 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
85 more questions?
1 JUDGE TRIKOUROS: I do, but I can let 2
Judge Arnold --
3 JUDGE GIBSON: Judge Arnold?
4 JUDGE ARNOLD: Once I get started, I'm 5
going to go through.
6 JUDGE GIBSON: Well, go ahead. Go ahead, 7
Judge.
8 JUDGE ARNOLD: Okay. For Petitioners, in 9
Contention 3, you state, quote, "The license renewal 10 application is inadequate because it fails to include 11 considerable information on the release of tritium and 12 other radionuclides." It's right in there in the 13 contention statement.
14 Now, in an ideal world, an ideal 15 contention would finish that off with a phrase saying, 16 "as is required by," and then, would cite to some sort 17 of rule requiring it. I couldn't find in your 18 contention a citation to a rule, regulation, or 19 whatever, that requires that information. Can you 20 tell me where that requirement is?
21 MR. LODGE: I would have included it, Your 22 Honor, in the petition, had I been able to find 23 anything.
24 Tritium is a stepchild in terms of how it 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
86 is regarded by the industry, by the nuclear industry, 1
and by the regulatory agency. That is a severe 2
problem.
3 JUDGE ARNOLD: Okay. The second question, 4
throughout Contention 3, you have numerous citations 5
to the Environmental Report, but none to other 6
portions of the application. That fact, and the 7
wording of the contention, makes me believe that this 8
is strictly an environmental contention. Was that 9
your intent?
10 MR. LODGE: Yes.
11 JUDGE ARNOLD: Okay. Let's see. In 12 Section 4, on page 34, of your petition, you address 13 materiality of the contention. You summarize it in 14 the last sentence, and I'm going to quote that here.
15 "Leakage of tritium and other 16 radionuclides is intimately associated with managing 17 the aging and deterioration of structures and 18 components at nuclear power plants, and the issues 19 raised by this contention go to the ultimate 20 reasonable assurance question that must be answered by 21 the Applicant."
22 Now, the reasonable assurance finding is 23 strictly a safety finding and is not an environmental 24 one. And as such, it is a poor justification for 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
87 demonstrating the materiality of an environmental 1
contention. Do you have any other words in your 2
contention addressing the materiality of Contention 3 3
as an environmental contention?
4 MR. LODGE: I'm not sure I understand your 5
question. As I understand your question, though, I 6
can't point you to anything else.
7 JUDGE ARNOLD: You have an environmental 8
contention --
9 MR. LODGE: Yes.
10 JUDGE ARNOLD: -- and you have said it's 11 material because it's required for a specific required 12 safety finding. The review process is pretty well 13 split, in that the environmental review and the safety 14 review are separate entities. And you've tried to 15 justify an environmental issue based on a safety 16 consideration. It just doesn't work.
17 MR. LODGE: Well, it's my understanding, 18 with respect, my interpretation of the Atomic Energy 19 Act does impose a requirement on licensing boards, on 20 the regulatory adjudication system, to make -- as well 21 as the staff -- to make some sort of determination of 22 reasonable assurance of safety, but that includes 23 taking into consideration the NEPA statement.
24 I realize they're two separate statutes, 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
88 but I believe there's case law that discusses the fact 1
that the Atomic Energy Act, effectively, empowers NEPA 2
or motivates it, drives it as a consideration in the 3
licensing decision.
4 JUDGE ARNOLD: Okay. Thank you.
5 I'm just going to ask my own question on 6
synergistic effects. Now, you have said that the 7
synergistic effects have not been assessed in the ER.
8 Do you have any type of factual or expert opinion-type 9
evidence to show that there is specifically a 10 synergistic effect between radionuclides and chemical 11 pollutants? Or are you just basing your facts upon 12 chemical behavior of tritium?
13 MR. LODGE: We're basing our opinion on 14 the oft-cited today discussion in the GEIS, as counsel 15 has pointed out, repeatedly pointed to.
16 JUDGE ARNOLD: Okay. Thank you.
17 For staff, I now have a question.
18 Much of Contention 3 focuses on cumulative 19 impacts. In the Licensee's Environmental Report, as 20 well as other Environmental Impact Statements that 21 I've read, I generally see that the individual impacts 22 are evaluated together in the cumulative impact 23 assessment, but they are only described in very 24 general terms, such as "all past, present, and 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
89 reasonably foreseeable future actions occurring in the 1
vicinity of the nuclear power plant may result in a 2
cumulative effect."
3 It's very hard to determine from that type 4
of statement what specific effects have been included 5
in the cumulative impact statement. I don't see ever 6
a breakdown of the individual impacts. For instance, 7
if they were assessing cumulative impacts on air 8
quality, I don't see a list saying that they looked at 9
drift from cooling towers, dust from construction 10 operations, exhaust from employees' cars. I don't see 11 a detailed list like that.
12 Now, is my impression correct that the 13 Environmental Report and Environmental Impact 14 Statement generally do not get into that nitty-ditty 15 type of detail?
16 MS. CARPENTIER: When we are talking about 17 impacts from that facility itself -- say, all the air 18 impacts from the facility -- they would not be in the 19 cumulative section. They would be in the direct 20 impacts of the facility section, even though we're 21 adding up several different sources of, say, dust.
22 If we were to take that, then, and look 23 at, shall we say, impact of auto emissions -- and 24 let's make this a new plant, for the sake of argument, 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
90 because there will be a lot more construction workers 1
at a new plant -- you would have to add the impact of 2
the auto emissions from the workers building the plant 3
to other auto emissions from other major activities in 4
the area to get a cumulative impact statement.
5 Does that answer your question?
6 JUDGE ARNOLD: I see that level of detail 7
when they're calculating the effect of the plant on, 8
for instance, air quality. But when they get into the 9
cumulative effect on air quality, they seem to lack 10 details in what specifically has been considered. Is 11 that a general truism for the cumulative impact 12 statements?
13 MS. CARPENTIER: Those that I have seen 14 vary depending on what's in the area. You know, are 15 there other industrial activities creating the same 16 sort of emission, for example? Or are there any 17 planned? And so, I think that's going to end up being 18 highly variable.
19 JUDGE ARNOLD: Hum. How does one conclude 20 that a cumulative impact assessment included a 21 specific effect? Is it always possible to do so?
22 MS. CARPENTIER: If you're asking about 23 the ER here, again, the NRC staff is out doing an 24 environmental audit right now and will be looking 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
91 behind the ER itself.
1 If there is something that we need that 2
the Applicant has that they did not submit on the 3
docket and we need it on the docket, we will 4
definitely be asking RAIs and getting it on the 5
docket. But I do not have that information at this 6
time. As that information appears on the docket, 7
there will be other opportunities to challenge it in 8
the future.
9 JUDGE ARNOLD: Well, I'm looking more in 10 general. Let's say Joe Q. Public picks up an 11 environmental review, looks at the cumulative impact 12 assessment. Does he have the capability from that 13 impact statement to determine what the individual 14 effects that were evaluated cumulatively, what they 15 are? Or is that just in background documents that are 16 not typically available to the general public reading 17 the ER?
18 MS. CARPENTIER: The sorts of major 19 facilities that are looked at are going to be 20 discussed in the environment of the plant, the 21 sections that describe what the site is and what's 22 around it, and so forth.
23 And we also hold a scoping process, where 24 the general public can bring that to our attention.
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92 So, if somebody looks at the ER or the EIS and says, 1
"Just a minute. They left out the paper mill," you 2
know, we have processes to make sure that the paper 3
mill does get looked at.
4 And it should be possible, when looking at 5
the site, to determine what the major land uses around 6
it are. When you start talking about future land uses 7
20 years out, it's not as certain as things that are 8
already there, of course, but they should catch the 9
major ones and describe them.
10 JUDGE ARNOLD: Okay. Okay. My last set 11 of questions is for Energy Harbor.
12 Petitioners allege that your description 13 of past radioactive releases at the Perry site is very 14 slim. In your Answer to the Petition, you state, 15 quote, "According to longstanding NRC guidance, to 16 satisfy this requirement, the Applicant should provide 17 a list of documented leaks, spills, or accidental 18 releases, including their nature, location, date, and 19 amount spilled and/or released. The ER provides this 20 information."
21 Okay. In terms of providing this 22 information, you cite to a list and discussion of 23 Liquid Releases Reported in 2020 and 2021. Were there 24 no releases of radioactive material prior to 2020?
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93 This is for Energy Harbor.
1 MR. LIGHTY: Your Honor, I can't say with 2
certainty, but I would assume that at some point there 3
likely has been.
4 JUDGE ARNOLD: Okay.
5 MR. LIGHTY: I think the point we were 6
getting to here really is that the Petitioners didn't 7
engage with that information, and then, show why 8
something more needed to be there, or what was 9
required. So, you know, if the idea is, well, is 2020 10 going back far enough, that was an argument that 11 Petitioners could have raised, but did not.
12 JUDGE TRIKOUROS: Well, I'm just trying to 13 understand, is 2020 -- so, you don't have to talk of 14 anything before 2020 or? I mean, I'm just trying to 15 understand, was this, like, you just didn't talk about 16 anything before 2020? Is it not important? We're 17 trying to understand why was it not in there. I think 18 that I don't mean to put words in Judge Arnold's 19 mouth, but that's the next question that would have 20 occurred to me.
21 MR. LIGHTY: Yes, I think there was a 22 materiality determination. That year is the most 23 relevant, the most recent, up-to-date information.
24 There may be, you know, limited practical benefit to 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
94 further-back, historical information that doesn't give 1
you the most up-to-date data relevant to the 2
discussion. But again, Petitioners don't explain why 3
something more is needed to satisfy that provision of 4
the guidance.
5 JUDGE TRIKOUROS: Well, just to correct 6
the record, I seem to remember that the Petitioners 7
did specifically address that. They said that the 8
historical record is provided in the license renewal 9
application is partially -- contains partial data, but 10 not complete data. So, I believe that's in their 11 petition.
12 MR. LIGHTY: Yes, I agree, Your Honor, and 13 that's a conclusion, but it doesn't explain why 14 something more is required. I think we were having a 15 discussion a moment ago about that you can state a 16 conclusion and say the ER didn't do this, but, for an 17 admissible contention, there needs to be the next 18 step, to identify a requirement that's unmet and say, 19 "Here's why more is required," because, you know, of 20 this requirement. It's not enough to just say the ER 21 should have done more and end the sentence with a 22 period.
23 JUDGE ARNOLD: Let me ask staff this 24 question. Now, the requirement that release 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
95 information be in there is in 10 CFR 1
51.53(c)(3)(ii)(p). And it just says it's got to have 2
a description of past releases. It doesn't say going 3
back to the start of the plant operation, and it 4
doesn't say, you know, the most recent.
5 How does staff see what the requirement is 6
for how extensive a list is required?
7 MS. CARPENTIER: May I take a moment to 8
talk to my client?
9 (Pause.)
10 Thank you.
11 We have no guidance on how far back they 12 must go.
13 JUDGE ARNOLD: I have no more questions.
14 JUDGE GIBSON: Go ahead, Judge Trikouros.
15 JUDGE TRIKOUROS: Yes. So, I just want to 16 clarify one thing for myself. I'm looking at this 17 from the point of view of the Petitioners. And I'm 18 saying that they see that, specifically, with respect 19 to tritium, they see that normal releases of tritium 20 are covered by the NRC regulations. And they're 21 arguing that those normal releases should be evaluated 22 synergistically, and that's a subject that we've 23 discussed here.
24 But they're also looking at tritium 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
96 releases as being not measurable in the sense that 1
water in a closed cooling water pipe, if the pipe 2
corrodes and leaks, tritium gets out. And there is no 3
measurement of that.
4 I'm sorry, are you trying to -- were you 5
saying something?
6 JUDGE GIBSON: Are you directing that at 7
me?
8 JUDGE TRIKOUROS: I think you may be 9
muted.
10 JUDGE GIBSON: Perhaps. NRC, are you okay 11 now?
12 MS. CARPENTIER: I'm so sorry. I'm sorry?
13 JUDGE GIBSON: We can hear you now.
14 MS. CARPENTIER: You were cut off.
15 JUDGE GIBSON: Okay.
16 JUDGE TRIKOUROS: Yes, did you want to say 17 something?
18 MS. CARPENTIER: Oh, I just wanted to say 19 that you were cut off in the middle of your question.
20 So, if you could repeat it, please?
21 JUDGE TRIKOUROS: Yes. I said I'm looking 22 at the tritium issue with respect to the Petitioners' 23 viewpoint. And I'm saying that they see normal 24 releases are measured and monitored and meet NRC 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
97 requirements. But they're also looking at the leaks 1
from pipe breaks and corroded pipes, and that sort of 2
thing. And I get the impression that they don't see 3
any protection there.
4 And while I might argue that the 5
groundwater protection program and other programs are 6
supposed to cover that, we haven't had any issues 7
identified by the Petitioners regarding the adequacy 8
or inadequacy of those programs.
9 But, fundamentally, it's that I don't know 10 what one would say regarding the environmental effect 11 of that particular leakage path, other than to cite 12 those programs. Is there anything else that exists 13 that you know of?
14 MS. CARPENTIER: In terms of catching a 15 new leak, the groundwater monitoring program would be 16 where that would show up. There are other programs 17 related to aging management that would require various 18 forms of monitoring or other maintenance on the plant 19 during a period of extended operation to prevent the 20 leaks, as opposed to just catching them after they 21 happen. And that is covered in the parts of the 22 application that address the aging management 23 programs. However, those were not challenged in this 24 application, in this petition.
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98 JUDGE TRIKOUROS: Well, I don't need to 1
ask that question. That's fine. Thank you.
2 JUDGE GIBSON: Have you got anything else, 3
Judge Trikouros?
4 JUDGE TRIKOUROS: Oh, yes, I have one 5
question for Mr. Lodge.
6 Mr. Lodge, you point to the Supreme Court 7
decision. You referenced it earlier. I believe it's 8
9 JUDGE GIBSON: Kleppe.
10 JUDGE TRIKOUROS: I don't know if it's 11 pronounced "Kleppy" (phonetic) or Kleppe v. Sierra 12 Club.
13 And in your petition, in your Reply, page 14 10, you say, "The U.S. Supreme Court has interpreted 15 NEPA to require consideration of cumulative or 16 synergistic environmental impact." And I believe 17 you're quoting from the decision there. I'm pretty 18 sure you are, yes. And you're quoting from Kleppe v.
19 Sierra Club.
20 They use the words "cumulative" or 21 "synergistic," as if they're one word. Do you 22 interpret that decision reference to cumulative or 23 synergistic to be that they're interchangeable, at 24 least in the intent that the Supreme Court had at that 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
99 point?
1 (Pause.)
2 Because they do reference it in the 3
context of -- I believe they reference it in the 4
context of past, present, and foreseeable future 5
effects or projects, and that sort of thing, which 6
sounds like cumulative to me.
7 I'm sorry, Mr. Lodge, you're going to have 8
to start over because you were muted.
9 MR. LODGE: Oh, yes, I did it again.
10 I understand your point, Judge Trikouros, 11 but I think that we also have to respect the 12 possibility/probability that the Court understood what 13 it meant when it used the word "synergistic" in that 14 phrase. Because it's something that -- that 15 cumulative also encompasses the analysis of 16 synergistic effects. At least that's my reading.
17 JUDGE GIBSON: Is that it?
18 JUDGE TRIKOUROS: That's it.
19 JUDGE GIBSON: Have you got any more 20 questions?
21 JUDGE TRIKOUROS: I'm done.
22 JUDGE GIBSON: All right. I believe that 23 concludes the questions that the Board has for you 24 regarding these contentions.
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100 And in light of the time, that we still 1
have some time remaining today, we're going to take a 2
10-minute break; let the four of you collect your 3
thoughts.
4 And we're going to reconvene and give each 5
of you 10 minutes to cover the waterfront, and we'll 6
begin with Mr. Lodge. We'll follow that with Energy 7
Harbor, and then, with the NRC staff, and then, Mr.
8 Lodge, considering that the Applicant and the NRC 9
staff are, essentially, aligned against you here, 10 we're going to give you an additional five minutes to 11 follow up for some rebuttal.
12 So, let's stand in recess and let you all 13 collect your thoughts, and we'll come back in 10 14 minutes and let you all get started on a closing.
15 Thank you.
16 (Whereupon, at 4:27 p.m., the foregoing 17 matter went off the record and went back on the record 18 at 4:43 p.m.)
19 JUDGE GIBSON: Okay, we're all here 20 together.
21 Mr. Lodge, I believe you're up first.
22 You've got 10 minutes. There will be a little timer 23 there you can see, as you're going along, to let you 24 know if you're getting short on time.
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101 Proceed, Mr. Lodge.
1 MR. LODGE: Thank you. And I want to 2
thank the panel and counsel and parties for the time 3
and patience and the intelligence that went into this 4
discussion today.
5 My perception of Energy Harbor's position 6
on the adequacy of the no-action alternative is that 7
Energy Harbor is saying, because it has not done a 8
detailed study of the possibilities, the purchase 9
power arrangements and agreements, that there is 10 uncertainty. And I think Petitioners agree with that 11 conclusion.
12 But Energy Harbor, then, proceeds to try 13 to parlay its own lack of knowledge and self-created 14 uncertainty to justify the conclusion that purchase 15 power can't be considered.
16 As that discussion ensued earlier, I was 17 thinking about how many years it has been -- probably 18 at least 20 in Ohio, where there are power 19 distribution aggregators who will sell you, and it 20 must be transmitted through Energy Harbor or other 21 companies' lines, FirstEnergy's lines, but they will 22 transmit power that is exclusively from wind or solar 23 or some combination.
24 So, exploring the possibilities in the 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
102 present of power generation would seem to be quite 1
easy. Exploring a mix of purchase power in the 2
future, that would seem to me is certainly a strong 3
possibility, given the growing trend toward 4
alternatives and the abandonment gradually of coal 5
and, ultimately, probably most natural gas.
6 So, it's sort of incomprehensible to me 7
that the purchase power option is so lightly, easily 8
rejected. And I think the remedy is for the panel to 9
allow the contention to go forward. So, perhaps we 10 can alleviate some of Energy Harbor's uncertainty 11 through the processes of litigation.
12 As to the PJM transmission operator 13 statement, 2019, I was reminded by one of the team, of 14 our team, that, indeed, there was an actual report 15 that was submitted to the Ohio Legislature, that that 16 wasn't simply an off-the-cuff statement.
17 The point, however, is that the PJM 18 transmission reliability analysis includes a study or 19 an assessment of resource adequacy, and that that 20 resource adequacy factors into PJM's representations 21 about generation support and capacity.
22 So, what representation was being made to 23 the Ohio General Assembly -- and incidentally, the 24 Ohio General Assembly at the time was deliberating 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
103 House Bill 6, which, infamously, became the object or 1
subject of multiple criminal prosecutions and a plea 2
by FirstEnergy, as a corporation, to having instituted 3
a system of bribery to get the bill passed.
4 But the point is that PJM, in the 5
legislative hearings preceding passage of House Bill 6
6, was, basically, saying, as I represented to this 7
panel earlier today, that if Perry closes down, it 8
will not be missed. And that is a valid point that 9
must be disclosed, and Energy Harbor's uncertainties 10 notwithstanding, needs to be investigated and 11 discussed in the NEPA document.
12 Turning to the tritium matter, as I have 13 indicated, there is no safe level of exposure to 14 tritium. It has unusual characteristics of being able 15 to cross the placenta and cause, as a radioactive 16 water substance, non-cancer effects. Dr. Arjun 17 Makhijani noted in his book that is cited at page 35 18 of our initial petition that non-cancer effects are 19 particularly troublesome because radiation can 20 actually cause miscarriages and malformations, because 21 of DNA damage.
22 The radioactive water adds to the toxic 23 effects of other pollutions -- other pollutants.
24 Pardon me. We believe that, irrespective of whether 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
104 or not there is discharge of tritium within limits, 1
that that should somehow cause a rejection of this 2
contention -- partly because of the fact that I think 3
it is certainly logical, and probably obvious, 4
particularly to the engineers on the licensing board, 5
that, as Perry continues to age into the 40-to-60-year 6
period, that tritium releases and the magnitude of 7
those releases is rather likely to increase on both 8
scores.
9 The NRC staff has said, in effect, that 10 there is an opening here for consideration of the 11 synergistic effects. I would remind the panel that 12 the standards for contention admission don't envision 13 us to conduct a merits trial here today.
14 And an awful lot of the questions -- what 15 can you prove and why don't you have data? -- are 16 issues to be decided either on summarily disposition 17 or perhaps at trial itself, but not today.
18 We have articulated what is certainly an 19 admissible contention. We have more than met the low 20 threshold that all too often seems to be forgotten in 21 the probing that licensing boards conduct prehearing.
22 We believe that we've made a minimal showing that 23 material facts are in dispute, demonstrating that 24 inquiry in-depth is appropriate.
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105 And as to both of the contentions we've 1
talked about today, we believe that they should be 2
admitted for trial. We'll certainly concede or 3
consent that there should be a paring-down of the 4
tritium contention to what we spent most of our time 5
discussing, but we have articulated, the Petitioners 6
have articulated two admissible contentions, and we 7
ask that that be the conclusion of the licensing 8
panel.
9 Thank you.
10 JUDGE GIBSON: Thank you, Mr. Lodge. As 11 I noted earlier, you'll have five minutes for rebuttal 12 when the other parties have completed.
13 Mr. Lighty, you have 10 minutes.
14 MR. LIGHTY: All right. Thank you, Your 15 Honor.
16 I'd like to start with a discussion of 17 Contention 2 and just point out at a high level that, 18 in reading the Petitioners' Reply, there appears to be 19 something of a contradiction here as to what they're 20 actually seeking in Contention 2.
21 At pages 3 and 4 of the Reply, Petitioners 22 disavow that they're seeking reconsideration of the 23 need for power from Perry. But, then, in the same 24 discussion on page 4, they suggest that such an 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
106 analysis is utterly essential here. But they can't 1
have it both ways. Either they're not asking for it 2
or they are asking for it because they believe it is 3
essential here. It's unclear which they're really 4
trying to argue.
5 But, as I noted earlier, we think that's 6
a new argument altogether. In the original petition, 7
the Petitioners attacked Energy Harbor's analysis of 8
the purchase power alternative because it did not 9
present comparative analysis from Perry.
10 And as noted in our staff answer 11 pleadings, Petitioners had entirely overlooked the 12 codified limitation in 10 CFR Section 51.53(c)(2) that 13 need for power analyses are not required in license 14 renewal proceedings.
15 In their Reply, they don't attempt to 16 rebut that assertion. Instead, they raise an entirely 17 new argument that asserts for the first time that a 18 need for power analysis is required under an exception 19 to that rule that they previously ignored. That's a 20 new legal theory, and new legal theories cannot be 21 raised in a reply.
22 But, regardless, that new argument is 23 immaterial here. The Petitioners claim that a need 24 for power analysis is essential for determining 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
107 whether the purchase power alternative should be 1
included in the range of alternatives considered in 2
the ER, but that doesn't raise a dispute here because 3
purchase power was included in the range of dozens of 4
potential alternatives that were considered in the ER.
5 There's an entire section on that, 7.2.2.1, that 6
considers the purchase power alternative.
7 Now, although that alternative did not 8
screen in for a further detailed analysis, it 9
certainly was included among the range of alternatives 10 that were considered in the ER. So, on its face, 11 Petitioners failed to show the materiality of their 12 demand.
13 And even so, they still fail to explain 14 why a need for power analysis would be essential here, 15 even to the screening analysis. Energy Harbor was 16 able to screen out the purchase power alternative on 17 other criteria that aren't challenged here without 18 performing a need for power analysis. So, obviously, 19 it can be done.
20 And as Judges Trikouros and Arnold may 21 recall, the licensing board in the Point Beach SLR 22 proceeding rejected a similar argument in LBP-22-5, 23 where the Petitioner failed explain why a discussion 24 of cost and benefits was essential if the Applicant 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
108 was able to dismiss the alternative on other grounds.
1 Ultimately, Petitioners provide no support 2
for their claim that a need for power analysis is 3
utterly indispensable in their context. And so, they 4
have not met their pleading burden here.
5 As we discussed earlier, the uncertainty 6
pointed out in Energy Harbor's analysis is certainly 7
an objectively reasonable conclusion, given the 8
context here. And the Petitioners haven't challenged 9
that, but they also haven't challenged the other bases 10 that are provided in that discussion regarding the 11 environmental impacts of constructing new generation 12 sources or the environmental impacts that would come 13 along with using what Petitioners acknowledge is other 14 generation sources in the region in Kentucky and West 15 Virginia that are mostly coal sources. They don't 16 address those. They don't rebut those. And so, for 17 those reasons, they haven't raised a genuine dispute 18 with Energy Harbor's analysis.
19 Again, in terms of the level of detail of 20 that
- analysis, it's entirely consistent with 21 Regulatory Guide 4.2, which simply requires the 22 Applicant to briefly discuss the reasons for their 23 elimination. The guidance doesn't require a detailed 24 study, a 100-page document looking at quantitative 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
109 factors. The Energy Harbor analysis satisfies the 1
guidance requirements.
2 And it's important to keep in mind that 3
the ultimate goal of the environmental review here is 4
not to do a need for power analysis. That review does 5
not require a determination of the best method for 6
electricity generation. The NRC clearly recognizes 7
that such decisions are appropriately left to energy 8
planners. So, the purpose of the NRC's environmental 9
review is simply to determine whether the adverse 10 environmental impacts of license renewal are so great 11 as to warrant depriving the energy planners of the 12 option of a
facility's continued operation.
13 Petitioners make no showing why a need for power 14 analysis is material to that determination.
15 An explanation of materiality is a 16 hard-and-fast requirement for an admissible 17 contention. And Petitioners provide no such 18 explanation here. And for that reason, Contention 2 19 is unadmissible.
20 Turning now to Contention 3, I did want to 21 return to the discussion of synergy and the discussion 22 of whether this has been analyzed as a Category I 23 issue or whether it hasn't been analyzed at all.
24 And I'm looking directly at the petition 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
110 and the reply, where Petitioners state that the 1
technical basis for its synergy claims is provided in 2
the GEIS discussion that recognizes that radionuclides 3
can combine with other materials. So, to the extent 4
that is its argument, the NRC has already analyzed 5
that in full. In recognition of that information, the 6
NRC concluded on page 4-107 of the 2013 GEIS that the 7
impact of radionuclides on aquatic biota was a 8
Category I issue.
9 Those portions of the GEIS are cited on 10 page 26 of our Answer at Footnote 115. And simply 11 put, that exact issue that Petitioners claim to be 12 missing from the ER was, in fact, analyzed. It 13 certainly hasn't been omitted.
14 But we also agree with the staff that, to 15 the extent Petitioners are presenting a more specific 16 demand related to the combination of radionuclides to 17 specific chemicals, then we agree that that analysis 18 is not in the GEIS, but Petitioners provide no support 19 for why it's required.
20 If you look at the original petition, the 21 very last sentence in the discussion of Contention 3 22 alleges that synergisms are, quote, "likely to occur 23 between the radioactive and non-radioactive chemicals 24 in the lake." End quote.
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111 But that is unbridled speculation.
1 Petitioners point to no support for that speculative 2
statement, and they make no claim that, even if that 3
statement were true, that such synergisms would be 4
material to the staff's analysis. And because they 5
don't present that claim, they certainly haven't 6
pointed to any support for a claim regarding 7
materiality.
8 The Commission has long held that bare 9
speculation is never enough for an admissible 10 contention. And the Board should reject Contention 3 11 for that reason.
12 And finally, Your Honors, materiality is 13 a crucial admissibility touchstone. Petitioners 14 cannot merely demand more or slice back an 15 environmental document, but, then, fail to explain a 16 legal basis that requires one. Petitioners cannot 17 derive the disclosure of radioactive releases as 18 incomplete without explaining why any additional 19 information would be material to the staff's analysis.
20 That's a pleading burden and it has not been satisfied 21 here. And ultimately, the Board should reject 22 Petitioners' attempt to shift that burden to the other 23 parties here.
24 And for all of those reasons, and because 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
112 the Petitioners have not raised an admissible 1
contention, the petition should be denied.
2 And thank you for your time.
3 JUDGE GIBSON: Thank you, Mr. Lighty.
4 Counsel for the NRC Staff, you have 10 5
minutes collectively.
6 MR. SIEGMAN: Thank you.
7 I will present on Contention 2 and Marcia 8
will present on Contention 3.
9 The NRC staff's position on Contention 2 10 is that the contention is not admissible, as it fails 11 to satisfy the admissibility requirements of 10 CFR 12 2.309(f).
13 I will respond, first, to Petitioners' 14 assertions that the ER fails to provide a detailed 15 enough purchase power analysis; second, that the ER 16 has an inadequate purpose and needs statement, and 17 third, that the Applicant's no-action alternative is 18 factless and has been rejected.
19 It's important to note at the outset that 20 the NRC does not decide the mix of power-generating 21 sources to use in a given place. However, in NEPA 22 space, we look at the environmental impacts of energy 23 alternatives as part of licensing decisions for 24 facilities that require NRC licenses.
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113 In the license renewal application, the 1
applicant considers a range of potential energy 2
alternatives to the parity plan, including fossil 3
fuels, renewables, and purchase power, and select 4
several for a
more detailed evaluation of 5
environmental impacts.
6 Purchase power was not selected for a more 7
detailed review because the source of replacement 8
power was considered uncertain, and the environmental 9
impacts were, therefore, similarly uncertain. And 10 without a clear understanding of which power 11 generation source would be used to generate the 12 purchase power, it is impossible to, then, determine 13 the environmental impacts -- the central purpose of 14 the alternatives analysis portion of the ER.
15 While the Petitioners seek an economic 16 analysis, the issue here is about the environmental 17 impact analysis, and it is not a question of whether 18 the power could be purchased, but the environmental 19 impacts from that. And again, without knowing where 20 the power is coming from, it is impossible to 21 determine the environmental impacts.
22 Moreover, hypothetically, if they were to 23 purchase power, wherever they purchased power from 24 would be a discrete alternative already analyzed. If 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
114 the power was generated by natural gas, coal, 1
renewables, whatever the generation source is, it's 2
already being considered in the range of options 3
examined in the ER. Purchase power isn't broken out 4
in more detail as a discrete alternative since it 5
encompasses those other alternatives. And not 6
considering purchase power for further study is not 7
rejecting the no-action alternative.
8 Even if the Board considers the 9
Petitioners' claims focusing on 10 CFR 51.53(c)(2) 10 within the scope of this proceeding, the claim is 11 still inadmissible for failing to meet 10 CFR 12 2.309(f)(1)(v), as it fails to provide minimal factual 13 support for Petitioners' claims.
14 Petitioners rely on testimony from 15 hearings in 2019 and testimony that was surrounding 16 the states' production of electricity in 2022, but, 17 crucially, does not predict the future of electricity 18 generation in those states and how exactly purchase 19 power from those states would replace parity in the 20 relevant period.
21 More importantly, it doesn't provide any 22 information regarding the environmental impacts from 23 where the purchase power would be produced -- the 24 heart of alternatives analysis -- as these statements 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
115 were not prepared for this purpose. Purchase power is 1
inherently speculative, and this testimony, based on 2
historical data and not meant for this purpose, does 3
not change the fundamentals of predicting this. With 4
past data, you can infer a whole universe of options, 5
but that is also simply speculative guesswork. The 6
Petitioners have not provided any asserted facts to 7
demonstrate that the analysis in the ER was lacking in 8
discussing environmental impacts.
9 Petitioners' second claim is that the ER 10 has an inadequate purpose and needs statement because 11 of its inclusion of the term "baseload power," and 12 that the agency may not accept this statement out of 13 hand. However, this is inadmissible, as the NRC 14 generally defers to applicants for their purpose and 15 needs statement. And while Petitioners are alleging 16 including the term "baseload power" in the purpose and 17 needs statement prevents discussion of need for power, 18 as previously mentioned, this is not applicable here.
19 Additionally, federal courts have held 20 that the inclusion of the term "baseload power" in a 21 purpose and needs statement is adequately broad enough 22 for an ER to appropriately consider, quote, "a host of 23 energy-generating alternatives." End quote.
24 Finally, Petitioners' third claim is that 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
116 the no-action alternative is fact-adverse and makes 1
conclusions unsupported by data, as well as that the 2
no-action alternative has been rejected. Petitioners 3
assert that this is due to the lack of analysis 4
relating to power capacity and economic arguments.
5 This type of analysis, again, is not required.
6 Moreover, the testimony in support of 7
Petitioners is pure speculation, which is insufficient 8
to provide the minimal factual showing necessary to 9
support Petitioners' claim and does not make any 10 claims or provide testimony regarding the 11 environmental impacts.
12 Finally, while Petitioners claim the 13 no-action alternative has been rejected, this is not 14 the case, as the ER only states that the Applicant did 15 not select Petitioners' preferred alternative, 16 purchase power, for further consideration.
17 As the Petitioners note by their quoting 18 of the purpose and needs statement, again, the NRC 19 does not have a role in the energy-planning decisions.
20 Therefore, the no-action alternative hasn't been 21 rejected. The Board should, therefore, not admit any 22 of Contention 2, as none of the claims made are 23 admissible.
24 I will now turn it over to my colleague 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
117 Marcia to discussion Contention 3.
1 Thank you for your time.
2 MS. CARPENTIER: Thank you.
3 Many of the issues in Contention 3 have 4
been addressed in one way or another. Those that are 5
Category I and those that are touch on safety issues, 6
we don't need to discuss further right now. We stand 7
on our pleadings about that.
8 Of what remains, the first is tritium in 9
groundwater, a Category II issue in the Generic 10 Environmental Impact Statement for license renewal, 11 which means it does require a site-specific analysis 12 in the ER.
13 The Applicant provided one. However, the 14 Petitioners do not challenge the Applicant's analysis 15 or include information supporting such a challenge, 16 and this part of the contention, therefore, fails to 17 meet the contention admissibility requirements in 18 2.309(f)(1), Sections (v) and (vi).
19 In a little greater length, the other 20 remaining issue concerns the potential of additive and 21 synergistic effects between tritium and chemical 22 pollutants in Lake Erie. NRC regulations and guidance 23 don't require a discussion like this. However, our 24 Answer approached this as a cumulative impacts 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
118 question and we continue to answer in that light 1
today.
2 The Petitioners' reply brief contains a 3
discussion of why they believe additive and 4
synergistic effects between tritium and chemicals must 5
be considered. However, their discussion is 6
speculative because it is not related to tritium, 7
either to the low tritium levels actually measured in 8
the lake or anything about how tritium behaves in the 9
environment. It focuses on phenomena such as 10 attachment of radionuclides to particles and 11 bioaccumulation in the food chain, and we do not 12 expect tritiated water to do those things.
13 They discuss other pollutants in the lake, 14 such as mercury, but not tritium. And for this 15 reason, the discussion in the Reply is speculative and 16 cannot serve as the basis for an admissible 17 contention. For Commission authority on that point, 18 see Note 195 in our pleading, which cites Vermont 19 Yankee, CLI-15-20.
20 Regarding Kleppe, which we've discussed 21 today, that case addressed a variety of socioeconomic 22 and environmental impacts from the coal-lease project 23 across multiple Great Plains states. We're dealing 24 with a very different scale here of specific 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
119 pollutants affecting specific organisms.
In 1
toxicology, synergistic effects are those that are 2
more than additive, so more than just the effect of 3
one pollutant plus the effect of another pollutant.
4 They imply some sort of interaction that creates a 5
greater effect than the additive effects would be.
6 There's no mechanism presented here about how that 7
would work with tritium and other chemicals, and even 8
less information about any other radionuclides.
9 For these reasons, again, the contention 10 pleading requirements in 10 CFR 2.309(f)(1), Sections 11 (v) and (vi), are not satisfied for this issue, 12 either, and the entire contention should be dismissed.
13 JUDGE GIBSON: Thank you, Counsel.
14 Mr. Lodge, you now have five minutes for 15 your rebuttal.
16 MR. LODGE: All right. Thank you very 17 much.
18 As to Contention 2, in conducting a 19 purchase power analysis off into the future, it 20 certainly would be a possibility for Energy Harbor --
21 or pardon me, actually, the NRC staff is going to be 22 drafting the DEIS -- to conduct an analysis that is 23 actually biased in favor of power generated from 24 alternatives, from renewables and from energy 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
120 conservation effects.
1 So, I am just very troubled by the 2
uncertainty that now the staff has chimed in on. If 3
I understood the staff argument correctly, purchase 4
power is inherently speculative, even when reviewing 5
past data, because it is not a sufficient guide to the 6
future.
7 All things are uncertain to a greater or 8
lesser extent. The further you go, if you go 10 days 9
out to figure out the weather, it's probably going to 10 over time turn out to be a lot less accurate than if 11 you only look at a two-or three-day advance forecast.
12 But forecasting into a 40- to 60-year timeframe is not 13 only possible, but we believe mandated.
14 And again, this is not a need for power 15 analysis. We are, the Petitioners are, concerned 16 about a lack of full and fair and, frankly, honest 17 disclosure about the prospects of availability of 18 power from other sources that would provide 19 considerable assurance that the no-action alternative 20 might be a viable one.
21 As to the other contention regarding 22 tritium, it's problematic to hear that there are safe 23 levels, or at least the implicit assumption that there 24 are safe levels or just fill out the paperwork and get 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
121 the right permits, and you don't have a problem.
1 Tritium is radioactive hydrogen. It's 2
water. Tritium replaces non-radioactive hydrogen in 3
water very quickly and selectively. It enters the 4
food chain. It can build up and accumulate and, in 5
effect, accumulate into plant and animal tissue. It 6
is bioaccumulative.
7 We wrote at page 44 of our initial 8
petition that pages 4-38 through 4-40 of the license 9
renewal application address cumulative surface water 10 impacts and do not address at all either the additive 11 effects of 20 more years of tritium accumulation in 12 Lake Erie, nor any synergistic analysis of 20 years of 13 continuous additional exposure to offshore aquatic 14 plants and, effectively, animals which are bathing, 15
- also, contemporaneously in non-radioactive 16 contaminants of concern.
17 Twenty additional years of contamination 18 with tritium likely will be significant. The degree 19 of tritium and associated radionuclide contamination 20 in Lake Erie, sure, will be hard to predict as the 21 power plant ages because of the apparent phenomena of 22 unpredictability.
23 The license renewal application contains 24 nearly 300 hits for the word "cumulative," but almost 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
122 none of them are in the context of discussion of 1
cumulative effects. They refer to "cumulative fatigue 2
damage," which is understandable -- it's a very valid 3
term -- but refers to a priority in aging management 4
efforts for piping, liquid contaminants, vents, 5
valves, and other components.
6 That is not cumulative effects analysis.
7 It hasn't happened. The license renewal application 8
that's submitted by Energy Harbor avoids 9
scrupulously avoids -- discussing cumulative effects.
10 We believe that our two contentions should 11 be admitted.
12 Thank you very much.
13 JUDGE GIBSON: Thank you, Mr. Lodge.
14 On behalf of this licensing board, I would 15 like to thank counsels for Petitioners Ohio Nuclear 16 Free Network and Beyond Nuclear, counsel for the 17 Applicant Energy Harbor, and counsel for the NRC 18 staff, for the excellent preparation and participation 19 that we've had today in today's oral argument.
20 We will be giving your pleadings and your 21 arguments today serious consideration over the next 22 few weeks. We fully intend to issue our decision on 23 standing and contention admissibility within the 24 period allotted to us for issuing a ruling, which I 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
123 understand is about 45 days after the conclusion of 1
this initial prehearing conference.
2 The Board would also like to express its 3
appreciation for the administrative support we've 4
received for today's conference. This includes our 5
court reporter, Patrick King, and Sarah Kohler, who 6
worked to post the Notice of Hearing on the NRC's 7
website, as well as our law clerk, Noel Johnson, who 8
served as the web master of ceremonies, and our other 9
law clerk, Emily Newman. Lastly, I want to thank Andy 10 Wilke, who has served as our IT support for conducting 11 this virtual conference.
12 Now, before we ring off, Counsel, I would 13 ask that all of you remain on this web conference a 14 bit longer to answer any questions that the court 15 reporter may have, so that we can ensure that our 16 transcript is correct.
17 And with that one sole qualification, this 18 oral argument will stand adjourned.
19 Thank you again for your time today.
20 (Whereupon, at 5:17 p.m., the proceedings 21 in the above-entitled matter were adjourned.)
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