ML24073A323
| ML24073A323 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 03/13/2024 |
| From: | Gary Arnold, Michael Gibson, Nicholas Trikouros Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| ASLBP 24-982-01-LR-BD01, RAS 56950, LBP-24-04, 50-440-LR | |
| Download: ML24073A323 (0) | |
Text
LBP-24-04 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
ATOMIC SAFETY AND LICENSING BOARD PANEL
Before the Licensing Board:
Michael M. Gibson, Chair NicholasG.Trikouros Dr. Gary S. Arnold
In the Matter of Docket No. 50-440-LR
ENERGY HARBOR NUCLEAR CORP. ASLBP No. 24-982-01-LR-BD01
(Perry Nuclear Power Plant, Unit 1) March 13, 2024
MEMORANDUM AND ORDER (Denying Intervention Petition and TerminatingProceeding)
Before this Licensing Board is the November 28, 2023 request for hearing and petition
for leave to intervene of Ohio Nuclear-Free Network (ONFN) and Beyond Nuclear (BN)
(collectively Petitioners) seeking to challenge the license renewal application (LRA) of Energy
Harbor Nuclear Corp. (Energy Harbor) for its Perry Nuclear Power Plant Unit 1 (Perry). The
Board concludes that Petitioners have established representational standing but that they have
not submitted an admissible contention. Accordingly, Petitioners hearing request is denied and
this proceeding is terminated.
I. BACKGROUND
On July 3, 2023, Energy Harbor submitted an application to renew Perrys operating
license for an additional 20 years beyond Perrys current license expiration date of November 7,
- 2 -
2026.1 After receipt of Energy Harbors LRA, the Nuclear Regulatory Commission Staff (NRC
Staff) published a notice in the Federal Register announcing the opportunity to request a
hearing to contest Perrys renewal application. 2 On November 28, 2023, Petitioners jointly
submitted a timely hearing request that proffered three contentions. 3
The next day, the Secretary of the Commission referred Petitioners hearing request to
the Chief Administrative Judge of the Atomic Safety and Licensing Board Panel for further
action.4 On December 4, 2023, the Chief Administrative Judge designated this Licensing Board
to rule on standing and contention admissibility matters and to preside at any hearing. 5
1 Letter from Rob L. Penfield, Site Vice President, Energy Harbor, to Document Control Desk, Nuclear Regulatory Commission at 1-3 (July 3, 2023) (ADAMS Accession No. ML23184A081).
The Energy Harbor renewal request consists of the license renewal application and five appendices. See id. encl. 1 ([Perry] License Renewal Application (rev. 0 July 2023))
[hereinafter LRA]. Of central importance to this proceeding is the final appendix to the LRA because that appendix contains the Environmental Report (ER). See LRA app. E ([Energy Harbors ER], License Renewal Stage, Perry Nuclear Power Plant Unit 1 (May 2023))
[hereinafter ER].
2 See Energy Harbor Corp.; Energy Harbor Generation LLC; [Energy Harbor]; Perry Nuclear Power Plant, Unit 1, 88 Fed. Reg. 67,373 (Sept. 29, 2023).
3 See Petition of [ONFN] and [BN] for Leave to Intervene in Perry Nuclear Power Plant License Extension Proceeding, and Request for a Hearing (Nov. 28, 2023) [hereinafter Petition].
Petitioners also submitted an Appendix to their Petition that includes their members declarations as well as other data that is referenced in the Petition. See Appendix of Exhibits (Nov. 28, 2023) (ADAMS Accession No. ML23332A786) [hereinafter Petition Appendix].
Petitioners use the term exhibits to refer to the attachments in their Petition Appendix, but as explained in the Licensing Boards December 7, 2023 Order (as amended), the term exhibits should be reserved for designating items submitted for an evidentiary hearing. See 10 C.F.R. § 2.304(g). Nevertheless, in this case, the Board did not require Petitioners to refile their Petition Appendix to correct this error. See Licensing Board Memorandum and Order (Initial Prehearing Order (amended)) (Dec. 7, 2023) at 4 n.12 (unpublished). Instead, we have referred to Petitioners exhibits as enclosures while keeping the Petitioners letter designations for each document.
4 See Memorandum from Carrie M. Safford, Secretary of the Commission, to E. Roy Hawkens, Chief Administrative Judge (Nov. 29, 2023).
5 See [Energy Harbor]; Establishment of Atomic Safety and Licensing Board 88 Fed. Reg.
85,666 (Dec. 8, 2023); Establishment of Atomic Safety and Licensing Board (Amended);
[Energy Harbor], 88 Fed. Reg. 85,932 (Dec. 11, 2023).
Energy Harbor and the NRC Staff timely filed their answers 6 on December 22, 2023 and
December 26, 2023, respectively, and Petitioners timely filed their reply to those answers on
January 2, 2024.7 In their reply, Petitioners declared they withdrew Contention 1. 8
On January 30, 2024, this Board heard oral argument from counsel for Petitioners, the
NRC Staff, and Energy Harbor regarding whether Petitioners have standing and whether their
proffered contentions are admissible. 9 We address standing first.
II. STANDING
A. Legal Standard for Standing
To participate in an NRC adjudicatory proceeding, a petitioner must first establish
standing.10 NRC regulations on standing require that a hearing request include (1) the name,
address, and telephone number of the petitioner; (2) the nature of the [petitioners] right under
[the Atomic Energy Act (AEA) or the National Environmental Policy Act (NEPA)] to be made a
party to the proceeding; (3) the nature and extent of the [petitioners] property, financial, or
other interest in the proceeding; and (4) the possible effect on the petitioners interest of any
decision or order that may be issued in the proceeding. 11 Although the petitioner bears the
6 See Energy Harbors Answer Opposing the Petition for Leave to Intervene and Request for Hearing of [ONFN] and [BN] (Dec. 22, 2023) [hereinafter Energy Harbor Answer]; NRC Staffs Answer Opposing [ONFN] and [BN] Hearing Request (Dec. 26, 2023) [hereinafter NRC Staff Answer].
7 See [ONFNs] and [BNs] Combined Reply in Support of Petition for Leave to Intervene (Jan. 2, 2024) [hereinafter Reply].
8 Id. at 3.
9 See Tr. at 1-124.
10 See 10 C.F.R. § 2.309(a).
11 Id. § 2.309(d)(1).
burden of setting forth a clear and coherent argument for standing, 12 when assessing standing,
we construe the petition in favor of the petitioner. 13
Further, where an organization, like ONFN or BN here, seeks to establish
representational standing on behalf of its membership, the organization must show that (1) at
least one member has standing and has authorized the organization to represent [them] and to
request a hearing on [their] behalf, (2) the interests the representative organization seeks to
protect [are] germane to its own purpose, and (3) neither the asserted claim nor requested
relief must require an individual member to participate in the organizations legal action. 14
In determining whether a petitioner meets the first requirement for representational
standing, the Commission has made clear that licensing boards are to apply contemporaneous
judicial concepts of standing that require a showing of a concrete and particularized injury that
is fairly traceable to the challenged action and that is likely to be redressed by a favorable
decision.15 However, in certain power reactor license proceedings, the Commission routinely
applies a proximity presumption. 16 The proximity presumption allows a petitioner to establish
standing without the need to make an individualized showing of injury, causation, and
12 Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 & 2), CLI-99-4, 49 NRC 185, 194 (1999).
13 Ga. Inst. of Tech. (Georgia Tech Research Reactor), CLI-95-12, 42 NRC 111, 115 (1995).
14 S. Nuclear Operating Co., Inc. (Vogtle Electric Generating Plant, Unit 3), CLI-20-6, 91 NRC 225, 238 (2020).
15 Calvert Cliffs 3 Nuclear Project, LLC, and UniStar Nuclear Operating Servs., LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 915 (2009).
16 Id.
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redressability if that petitioner resides, 17 has frequent contacts,18 or has a significant property
interest19 within 50 miles of the subject nuclear power reactor. 20
B. Analysis
Although neither Energy Harbor nor the NRC Staff contest ON FNs or BNs standing to
participate in this proceeding,21 this Board nevertheless is charged with independently
determining their standing. 22 In this regard, ONFN and BN each maintain that they satisfy
representational standing requirements based on their members proximity to, and frequent
contacts with, the area near Perry. 23
- 1. Analysis of ONFNs Sta nding
To demonstrate representational standing, ONFN proffers declarations from two of its
members.24 The first lives 17 miles from Perry and the second lives about 4 miles from Perry. 25
Both members designate ONFN to serve as [their] representative in this proceeding, 26 both
17 Id.
18 See Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-93-21, 38 NRC 87, 95 (1993).
19 USEC, Inc. (American Centrifuge Plant), CLI-05-11, 61 NRC 309, 314 (2005).
20 Calvert Cliffs, CLI-09-20, 70 NRC at 915.
21 See Energy Harbor Answer at 2 n.4; NRC Staff Answer at 5-6.
22 10 C.F.R. § 2.309(d)(2); see also Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units 2 & 3), LBP-19-5, 89 NRC 483, 491 (2019), affd on other grounds, CLI-20-11, 92 NRC 335 (2020).
23 See Petition at 7-10.
24 See Petition Appendix, encls. B & C.
25 Id.
26 Id.
state that they are concerned, among other things, with public and environmental health, and
both maintain that the license for Perry should not be renewed. 27
Additionally, an officer of ONFN provided a declaration that ONFN opposes Perrys
relicensing and intends, on its members behalf, to ensure that those members interests in a
safe and healthy environment are protected. 28 ONFN describes itself as an unincorporated
association dedicated to ending the use of commercial nuclear power in Ohio. 29 The
organization is specifically concerned about nuclear weapons, radioactive waste, and the
radioactive contamination of air, water, and soil. 30
Based on the two individual member declara tions, the proximity presumption clearly
affords both individuals standing to intervene in this proceeding and both have authorized
ONFN to represent them in this proceeding. The ONFN declarations also establish that the
interests it seeks to protect in this proceeding, i.e., the health and safety of the public and
environment, are germane to ONFNs purpose. Lastl y, neither ONFNs asserted claim, nor its
requested relief, require that an individual member of ONFN participate in this proceeding
because all members will benefit from the requested relief and no member has a unique injury
requiring individualized proof. 31
We therefore conclude that ONFN has established its representational standing in this
proceeding.
27 See id.
28 Id. encl. A.
29 Id.
30 Petition at 2.
31 See Vogtle, CLI-20-6, 91 NRC at 238; see also Warth v. Seldin, 422 U.S. 490, 515-16 (1975)
(holding that an organization could not seek damages for the profits and business losses of its members because whatever injury might have been suffered is peculiar to the individual member concerned, and both the fact and extent of the injury would require individualized proof.).
- 2. Analysis of BNs Standing
Like ONFN, BN provides a members declaration to demonstrate representational
standing.32 This member states that he lives, and actively farms, approximately 11 miles from
Perry and that he designates BN to serve as his representative in this proceeding. 33 This
member also states that he is concerned, among other things, that renewing Perrys license will
adversely impact safety, public health, and the environment. 34
Additionally, an officer of BN provided a declaration stating that BN opposes the renewal
of the Perry operating license and that BN intends to ensure its members interests in a safe and
healthy environment.35 BN further explains that it is a not-for-profit public policy, research,
[and] education organization... that advocates the immediate expansion of renewable energy
sources to replace commercial nuclear power generation. 36
Based on the declaration of this BN member, the proximity presumption clearly affords
him individual standing to intervene in this proceeding and he has authorized BN to represent
him in this proceeding. And the declaration of an officer of BN also establishes that the interests
BN seeks to protect in this proceeding, i.e., the health and safety of the public and the
environment, are germane to BNs purpose. Lastly, neither BNs asserted claim, nor its
requested relief, require that an individual member of BN participate in this proceeding because
all members will benefit from the requested relief and no member has a unique injury requiring
individualized proof. 37
32 See Petition Appendix, encl. E.
33 Id.
34 See id.
35 Id. encl. D.
36 Petition at 4.
37 See Vogtle, CLI-20-6, 91 NRC at 238; see supra note 31.
We therefore conclude that, like ONFN, BN has established its representational standing
in this proceeding.
III. CONTENTION ADMISSIBILITY
A. Legal Standard for Contention Admission
For a hearing to be granted, a petitioner not only must establish standing to intervene,
but also must proffer at least one admissible contention. 38 To be admissible, a contention must:
(i) Provide a specific statement of the issue of law or fact to be raised or controverted...;
(ii) Provide a brief explanation of the basis for the contention;
(iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding;
(iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding;
(v) Provide a concise statement of the alleged facts or expert opinions which support the [petitioners] position on the issue...,
together with references to the specific sources and documents on which the [petitioner] intends to rely to support its position on the issue; [and]
(vi) [P]rovide sufficient information to show that a genuine dispute exists with the [applicant] on a material issue of law or fact. This information must include references to specific portions of the application... that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief.... 39
38 10 C.F.R. § 2.309(a).
39 Id. § 2.309(f)(1).
A petitioners failure to comply with any of these requirements renders a contention
inadmissible.40 The contention admissibility r egulations are strict by design 41 in order to
exclude vague, unparticularized, or unsupported contentions. 42 While petitioners need not
prove their contentions at the admissibility stage, the contention admissibility standards do
require petitioners to proffer at least some minimal factual and legal foundation in support of
their contentions.43 Contentions must be based on a genuine material dispute, rather than
mere disagreement with an application. 44
B. Analysis
- 1. Contention 1
Petitioners first contention alleges that the Severe Accident Mitigation Analysis in
Energy Harbors Environmental Report (ER) is inadequate. 45 However, in their Reply,
Petitioners withdrew Contention 1 46 and they confirmed their withdrawal of Contention 1 during
the January 30 oral argument. 47
40 See Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-05-24, 62 NRC 551, 567 (2005).
41 Entergy Nuclear Operations, Inc. (Indian Point, Unit 2), CLI-16-5, 83 NRC 131, 136 (2016)
(citing Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),
CLI-01-24, 54 NRC 349, 358 (2001)).
42 See North Atl. Energy Serv. Corp. (Seabrook Station, Unit 1), CLI-99-6, 49 NRC 201, 219 (1999).
43 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3), CLI-99-11, 49 NRC 328, 334 (1999).
44 See USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 480 (2006)
(Contentions... must be based on a genuine material dispute, not the possibility that petitioners, if they perform their own additional analyses, may ultimately disagree with the application.).
45 Petition at 12.
46 Reply at 3.
47 See Tr. at 15 (Lodge).
Accordingly, Contention 1 is no longer at issue in this proceeding.
- 2. Contention 2
Petitioners second contention concerns the no-action alternative analysis in Energy
Harbors ER.48
NRC rules require that an applicants ER provide a sufficiently complete discussion of
alternatives to its proposed action (here, renewal of the Perry license) in order to aid the NRC in
its NEPA review.49 At the same time, however, an ER is not required to discuss every
conceivable alternative. 50 Rather NEPA mandates only the consideration of reasonable
alternatives that are capable of meeting the purpose and need of the proposed action. 51
In addition, NRC rules demand that the ER evaluate the environmental costs and
benefits that would flow from not approving a project, 52 the so-called no-action alternative.
Discussions of the no-action alternative can be brief and can incorporate by reference other
sections of the ER that address adverse consequences from the proposed project. 53 The no-
action alternative, like all NEPA requirem ents, is governed by a rule of reason. 54 In evaluating
the sufficiency of no-action alternatives, licensing boards are not to flyspeck environmental
48 See Petition at 21. NRC regulations direct pet itioners that [o]n issues arising under [NEPA],
participants shall file contentions based on the applicants [ER]. 10 C.F.R. § 2.309(f)(2).
49 10 C.F.R. § 51.45(b)(3) (citing 42 U.S.C. § 4332(2)(H)).
50 See 42 U.S.C. § 4332(2)(C)(iii), (F).
51 Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-93-3, 37 NRC 135, 144-45 (1993); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
CLI-91-2, 33 NRC 61, 71 (1991).
52 See Louisiana Energy Services, L.P. (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 97-99 (1998).
53 See Hydro Resources, Inc. (P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-4, 53 NRC 31, 54 (2001) ([f]or the no-action alternative, there need not be much discussion); Claiborne, CLI-98-3, 47 NRC at 98 (We do not find the [final en vironmental impact statement's] incorporation by reference approach unreasonable as such.).
54 Claiborne, CLI-98-3, 47 NRC at 97.
documents or add nuances. 55 In fact, as long as the [ER] on its face comes to grips with all
important considerations nothing more need be done. 56
For purposes of this proceeding, the no-action alternative assumes that Perrys
proposed renewal of its current operating license would not be granted, that Perrys current
operating license would expire on November 7, 2026, that Energy Harbor would transition to
decommissioning Perry,57 and that Perrys baseload power would not be available for
distribution in Ohio.58 Consequently, Energy Harbors ER evaluates over a dozen options to
replace Perrys power.59 These options include new power plants, new solar facilities, new wind
generation, conservation, and purchasing r eplacement power from nearby generating
facilities.60 Energy Harbor considered some of these options reasonable and others not
reasonable.61
Even though Petitioners frame Contention 2 as a dispute with the ERs discussion of the
no-action alternative, in fact Contention 2 only mounts a challenge to one portion of this
discussionthe Purchased Power alternative in section 7.2.2.1 of the ER. 62 This section of
the ER evaluates the option of replacing Perrys power generation with power purchased from
55 See Exelon Generation Co. (Early Site Permit for Clinton ESP Site), CLI-05-29, 62 NRC 801, 811 (2005) (quoting Systems Energy Resources, Inc. (Early Site Permit for Grand Gulf ESP Site), CLI-05-4, 61 NRC 10, 13 (2005)).
56 See Exelon, CLI-05-29, 62 NRC at 811.
57 See ER at 7-1 to -3.
58 Id. at 7-1.
59 See id. at 7-3 to 7-10.
60 See id.
61 See, e.g., id. at 7-3 (finding natural gas alternative is reasonable) and id. at 7-8 (finding geothermal energy alternative is not).
62 See, e.g., Petition at 23.
other states,63 and concludes that this purchased power option is unreasonableand therefore,
that it requires no further evaluation. 64 Energy Harbor provides three separate reasons for
deeming the purchased power option unreasonable: (1) uncertainty in energy reliability; (2)
uncertainty created by ongoing closure of coal-fired plants; and (3) adverse environmental
impacts from purchased power. 65
In Contention 2, Petitioners object to the brevity of section 7.2.2.1 and characterize the
content of this ER section as being fact-averse. 66 Specifically, Petitioners argue that (1)
Energy Harbors analysis of the environmental harms arising from the purchased power
alternative are unsupported by data; and (2) Energy Harbors ER creates an exaggerated
perception of Perrys role as a power producer because Perrys contribution is redundant and
not needed.67 It is noteworthy that in raising these arguments, Petitioners never challenge any
of the three reasons Energy Harbor provides in section 7.2.2.1 for considering the purchase
power option to be unreasonable.
Likewise, Petitioners do not challenge Energy Harbors evaluation that a shutdown of
Perry would require the state of Ohio to replace its energy generation with purchased power
from other states that would produce greater uncertainties in energy reliability that are not
within Energy Harbors control. 68 Nor do Petitioners challenge Energy Harbors assessment
that the ongoing closure of coal-fired plants will create even more uncertainty in energy
63 See ER at 7-3 to -4.
64 See id. at 7-4.
65 Id. at 7-3 to -4.
66 Petition at 22.
67 Id.
68 ER at 7-3.
reliability as well as changes to the availability of baseload generation. 69 And Petitioners do not
challenge Energy Harbors argument that the adv erse environmental impacts of the purchased
power alternative could be substantial due to increased air emissions, greater water use,
degraded water quality, and impaired land use. 70
Because Petitioners failed to challenge the reasons Energy Harbor posits for concluding
that the purchased power alternative is unreasonable, they run afoul of our contention
admissibility rules. We require petitioners to explain how their claims call into question the
adequacy of an existing analysis, not merely suggest other details that could have been
included in an analysis. 71 For this reason alone, Contention 2 fails to raise a genuine dispute
with the relevant portion of the application. 72
Despite Petitioners failure to dispute Energy Harbors analysis in ER section 7.2.2.1,
they claim Contention 2 is nevertheless admissible for economic reasons. As a general rule, an
ER is to address the environmental impacts of alternatives, and it need not discuss either the
economic costs and benefits of such alternatives or the need for power. 73 To work around this,
Petitioners attempt to invoke 10 C.F.R. § 51.53(c)(2), which states that an economic analysis
69 See id.
70 Id. at 7-4.
71 See NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 323-24 (2012) ([T]he proper question is not whether there are plausible alternative choices for use in the analysis, but whether the analysis that was done is reasonable under NEPA.)
72 See 10 C.F.R. § 2.309(f)(1)(vi).
73 Office of Nuclear Reactor Regulation, NRC, NUREG-1437, Generic Environmental Impact Statement (GEIS) for License Renewal of Nuclear Plants, Main Report, Final Report at 1-15 (rev. 1 June 2013) (ADAMS Accession No. ML13106A241) (The NRC will not make a decision or any recommendations on the basis of information presented in this GEIS regarding the need for power at nuclear power plants [whose applicants are seeking a renewal of an operating license]. The regulatory authority over licensee economics (including the need for power) falls within the jurisdiction of the States and, to some extent, within the jurisdiction of FERC.)
[hereinafter 2013 GEIS].
can be appropriate in an ER where the costs and benefits of the alternatives are essential for a
determination regarding the inclusion of an alternative in the range of alternatives considered. 74
Although Petitioners seek to hang their hat on this language in section 51.53(c)(2), they
provide no basis for their claim that such an economic cost and benefit analysis is essential
here. All Petitioners offer is the mere assertion that [a] comprehensive understanding of the
costs as well as the benefits of the power generated by Perry is essential to determine whether
purchased power affords a viable alternative and has been adequately considered. 75 But under
our contention admissibility rules, Petitioners bea r the responsibility of setting forth their
grievances clearly.76 By failing to provide any facts to support their claim that an economic cost
and benefit analysis is essential here, Petitioners have not established that the substance of this
contention, even if true, is material to the findings the NRC must make relative to the Energy
Harbor application.
Based on the above analysis, the Board concludes that Contention 2 is inadmissible.
- 3. Contention 3
Petitioners third contention concerns releases of tritium from Perry and the potential
adverse environmental effects of such releases. 77 In this regard, Petitioners assert the following
claims: (1) Energy Harbors LRA is inadequat e because it fails to include considerable
information on the release of tritium and other radionuclides from Perry; (2) Energy Harbors
LRA omits analyses of pipe leaks or breakage from an aging nuclear reactor that may occur in
74 10 C.F.R. § 51.53(c)(2).
75 Reply at 4.
76 See Zion, CLI-99-4, 49 NRC at 194 (We do not expect our adjudicatory Boards, unaided by the parties, to sift through the parties pleadings to uncover and resolve arguments not advanced by litigants themselves. The burden of setting forth a clear and coherent argument for standing and intervention is on the petitioner.... Boards should not speculate about what a pleading is supposed to mean.) (int ernal quotation marks omitted).
77 See Petition at 31.
the future, as well as any resultant radiation releases; (3) Energy Harbors LRA omits any
discussion of the additive or synergistic relationships that might exist between tritium and other
leaked radionuclides and the biocide chemicals used to kill aquatic organisms; (4) Energy
Harbors LRA omits analyses of cumulative radiological impacts and the resulting potential
health risks from operating Perry for an additional 20 years; and (5) Energy Harbors LRA
omit[s] to take cognizance of or to analyze the potential health impacts to workers and the
communities surrounding Perry including any cumulative impacts. 78
Because Contention 3 asserts that information is missing from the ER, it is characterized
as a contention of omission. To establish the admissibility of a contention of omission, a
petitioner must show what specific information is missing and explain why that information is
required to be included in an environmental document, such as the ER here. 79 Taking each
claim in turn, we begin with Petitioners argument that Energy Harbors ER does not include
information related to the release of tritium. As explained below, this portion of Contention 3 is
not admissible because Petitioners fail to demonstrate that a genuine dispute exists as to a
material issue of law or fact.80
In this regard, Petitioners refer us to no law or regulation mandating the inclusion of this
information in an ER. In fact, Petitioners admitted during oral argument that they were unaware
of any requirement that such release information be addressed in an ER. 81 Actually, there is
such a rule. It is 10 C.F.R. § 51.53(c)(3)(ii)(P), which requires that inadvertent releases of
78 Id.
79 See 10 C.F.R. § 2.309(f)(1)(vi); see also Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-28, 56 NRC 373, 382-83 (2002) (There is, in short, a difference between contentions that merely allege an omission of information and those that challenge substantively and specifically how particular information has been discussed in a license application.).
80 10 C.F.R. § 2.309(f)(1)(vi).
81 See Tr. at 85 (Lodge) (stating I would have included [the legal requirement],... had I been able to find anything.).
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radionuclides into groundwater be assessed in the ER and that such assessment must also
include a description of any past inadvertent releases and the projected impact to the
environment... during the license renewal term. 82 To comply with this rule, Energy Harbor
addressed Perrys historical releases in ER section 3.6.4.2, 83 and it addressed the potential
impacts of these releases during Perrys li cense renewal term in ER section 4.5.5.4. 84
Petitioners assert, however, that the ER fails to include information regarding a liquid
release containing detectable quantities of tritium that occurred after Energy Harbor had
prepared its ER.85 But as Energy Harbor makes clear in its Answer, nothing in the Petition
demonstrates that the inclusion of this one recent release in the ER is material to the findings
the NRC must make to support the action in accordance with 10 C.F.R. § 2.309(f)(1)(iv). 86 A
disputed issue is material if its resolution would make a difference in the outcome of the
licensing proceeding.87 Petitioners have not established that, relative to the completeness of
the ER or otherwise, the failure to include this information would make a difference in the
outcome of this licensing proceeding.
82 10 C.F.R. § 51.53(c)(3)(ii)(P).
83 ER at 3-93 to -94.
84 Id. at 4-15 to -16.
85 See Petition at 40.
86 Energy Harbor Answer at 24 n.106. Notably, Petitioners also say nothing in their Reply to dispute this information in Energy Harbors Answer addressing the subject release.
87 Holtec International (HI-STORE Consolidated Interim Storage Facility), CLI-20-4, 91 NRC 167, 190 (2020) (internal quotation marks omitted).
Petitioners second claim in Contention 3 asserts the ER contains no analysis of possible
future pipe leaks or breakage that may result in a release of radiation. 88 Again, however,
Petitioners argument fails to raise a genuine dispute with the application.
Under 10 C.F.R. § 54.29(a), the applicant is required to provide reasonable assurance
that it will manage the effects of aging during the period of extended operation on the
functionality of structures and components that have been identified to require review. 89 As
Energy Harbor explains in its Answer, the LRA presents a comprehensive and systematic
analysis of aging issues across more than 1,600 pages of content. 90 In addition, the LRA
includes 44 aging management programs that E nergy Harbor plans to implement at Perry
during the license renewal term to monitor, identify, and manage the effects of aging on plant
systems, structures, and components. 91
Though Petitioners acknowledge that the LRA contains such aging management
information,92 they maintain the LRA should have additionally evaluated possible future pipe
leaks or other breakage. 93 Yet Petitioners cite no law or regulation obligating Energy Harbor to
include an environmental analysis of potential future pipe leaks and breakage to support the
agencys NEPA review. With no citation to a specific deficiency in the ER, much less to any
environmental impacts that may result from Energy Harbors aging management program
88 See Petition at 31. Petitioner clarified during oral argument that this contention is not a safety contention but is strictly an environmental one. See Tr. at 86 (Lodge).
89 10 C.F.R. § 54.29(a)(1).
90 Energy Harbor Answer at 14.
91 Id.
92 See Petition at 31 (stating that [t]here is mention of pipe leaks or other breakage that has led to some radiation releases.).
93 Id. ([T]there is no analysis of similar pipe leaks or breakage that may occur in the future and the related radiation release increase that could result in aging nuclear reactors.)
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described in detail in the LRA, Petitioners have not raised a genuine dispute with the application
and so their argument fails to support an admissible contention. 94 Further, Petitioners provide
no factual support for their claim that there could be leakage under the plant or that the tritium
contamination will worsen in the future. 95 As such, both assertions are mere speculation and
cannot support an admissible contention.
Petitioners third claim in Contention 3 criticizes the ER for not addressing the additive
or synergistic effects of tritium. 96 As for any purported absence of any discussion of the
additive effects of tritium, we note that Energy Harbor did examine what Petitioners consider
additive effects of radioactive releases in the ERs cumulative impacts analysis. The ER
states that there are only two other NRC-licensed operating facilities within 50 miles of Perry
and that both are currently undergoing decommissioning. 97 Accordingly, the ER concludes that
operating Perry for an additional 20-year period would not cause an increase in annual
radioactive effluent releases. 98
With respect to the absence of any discussion of the alleged synergistic effects of tritium,
Petitioners rely on language in Kleppe v. Sierra Club regarding consideration of cumulative or
synergistic environmental impact[s]. 99 On closer reading, however, Kleppe cannot support
Petitioners assertion that Energy Harbors ER must contain an evaluation of tritiums possible
synergistic effects at Perry.
94 See 10 C.F.R. § 2.309(f)(1)(vi).
95 See Petition at 43.
96 Id. at 31.
97 ER at 4-41. The two facilities are Advanc ed Medical Systems, which is approximately 35 miles southwest of Perry and the Whittaker Corporation, which is approximately 48 miles southeast of Perry.
98 Id.
99 Petition at 46 (citing Kleppe v. Sierra Club, 427 U.S. 390, 410 (1976)); Tr. at 76.
In Kleppe, the United States Supreme Court considered whether NEPA required a
federal agency to expand its analysis of the developm ent of coal resources in a specific region
into a comprehensive environmental impact statement (EIS) covering the area as a whole. 100
The Court concluded that no comprehensive EIS was required under NEPA because there was
no existing or proposed plan in place to develop the region as a whole. 101 In holding that NEPA
requires such a concrete proposed federal action in order to trigger a comprehensive EIS, 102 the
Court explained that the situations requiring a comprehensive EIS include those where several
proposed actions are pending at the same time. 103
Here, in an attempt to support their claim that the ER should address the cumulative or
synergistic effects of tritium, Petitioners focus on one specific passage in Kleppe that explains
when an agency is obligated to conduct a comprehensive EIS. That passage states: when
several proposals for coal-related actions that will have cumulative or synergistic environmental
impact upon a region are pending concurrently before an agency, their environmental
consequences must be considered together. 104
It is difficult to see how this passage in Kleppe discussing multiple related agency
actions could be deemed to obligate a nuclear power plant renewal applicant to consider the
synergistic effects of tritium with other radionuclides or other chemicals. Significantly, during
oral argument, Petitioners conceded they were not aware of any requirement for an applicant to
100 See Kleppe, 427 U.S. at 395.
101 See id. at 414-15.
102 See id.
103 Id. at 409.
104 Id. at 410.
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consider synergistic effects, 105 and the NRC Staff confirmed that, while there is guidance on
cumulative impacts, none exists on synergistic impacts. 106
Although Petitioners did provide information about certain chemicals found in Lake
Erie,107 they offered no data or scientific studies showing there to be any synergistic effect of
tritium with these chemicals.108 With no factual support for their argument regarding the alleged
synergistic effects of tritium, this claim is far too speculative to support an admissible
contention.109 Likewise, Petitioners have referred us to no law or regulation mandating that
such information be included in an ER. As a consequence, Petitioners have failed to
demonstrate that the issue is material or that there is a genuine dispute of law or fact. 110
Next, Petitioners make several claims that the ER fails to include a cumulative impact
analysis of potential future health risks posed to workers and to the communities surrounding
Perry.111 Significantly, however, Petitioners seek to adjudicate the very impacts and health risks
of operating the plant for an additional 20 years that are designated as Category 1 issues in the
2013 Generic Environmental Impact Statement (GEIS) and in Table B-1 of Appendix B to
105 See Tr. at 76 (Lodge) (stating I dont know of any guidance, but I do know that there are many qualified chemists in the country and that there is certainly an understanding within that profession of synergy and certainly the capability to analyze it.).
106 See id. at 75 (Carpentier).
107 See Petition at 45.
108 When questioned about the lack of specific evidence of synergistic effects at Perry, Petitioners counsel responded that [w]ere basing our opinion on the... discussion in the
[2013 GEIS]. Tr. at 88 (Lodge). In fact, however, neither synergy nor synergistic appear in the 2013 GEIS.
109 See, e.g., GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 208 (2000) (finding bare assertions and speculation insufficient to trigger a contested hearing).
110 10 C.F.R. § 2.309(f)(1)(iv), (vi).
111 See Petition at 31.
Subpart A of 10 C.F.R. Part 51. In fact, during oral argument, counsel for Petitioners conceded
as much.112
As is noted in the 2013 GEIS, the Commissions intent in issuing the GEIS was to
determine which environmental impacts would result in essentially the same (generic) impact at
all nuclear power plants and which ones could result in different levels of impacts at different
plants.... For those issues that could not be generically addressed, the NRC would prepare
[a] plant-specific supplemental [EISs] to the GEIS. 113 Further, under the Commissions
regulations governing the consideration of NEPA issues in a license renewal proceeding, those
generic issues falling within the Category 1 designation in 10 C.F.R. Part 51, Subpart A,
Appendix B, Table B-1 do not require further site-specific consideration in an applicants ER or
the Staffs GEIS supplement.114
Because these Category 1 issues have been so codified, they cannot be challenged in a
licensing proceeding except where a petitioner first obtains a waiver under 10 C.F.R. § 2.335
which Petitioners have not done. 115 The Commission has made clear that Category 1
determinations are not subject to site-specific review and... fall beyond the scope of individual
license renewal proceedings. 116 In particular here, radiation doses to the public, radiation
doses to plant workers, exposure of aquatic and terrestrial organisms to radionuclides, and
112 See Tr. at 51-52, 71 (Lodge) (conceding during oral argument that the 2013 GEIS addressed all of the claims originally plead in Petitioners Contention 3 except for the possible cumulative and synergistic effects of tritium with other substances). Petitioners also acknowledged during oral argument that their claim concerning inadequate monitoring frequency was resolved by Energy Harbors Answer that explained Energy Harbor had made a clerical error in its LRA. See Tr. at 63-64 (Lodge); Energy Harbor Answer at 24 n.107.
113 2013 GEIS at S-1.
114 See 10 C.F.R. § 51.53(c)(3)(i)-(ii).
115 See, e.g., Exelon Generation Co., LLC (Limerick Generating, Units 1 & 2), CLI-12-19, 76 NRC 377, 384 (2012).
116 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 12 (2001); see 10 C.F.R. § 51.53(c)(3)(i)-(ii).
cooling tower impacts on vegetation have all been deemed Category 1 issues with an impact
level of SMALL.117 Energy Harbor has incorporated these generic analyses of Category 1
issues by reference in its ER. 118 Because Petitioners have not requested a 10 C.F.R. § 2.335
waiver, they are precluded from challenging thes e Category 1 issues here. Accordingly, any
claim that radiological and health impacts were not analyzed in the ER fails to raise a genuine
dispute with Energy Harbors application and falls beyond the scope of this proceeding.
Because Petitioners argument fails to meet section 2.309(f)(1)(iii) and (vi) of our contention
admissibility standards, it does not support an admissible contention.
Nevertheless, even were we to construe Petitioners argument as implicating cumulative
impacts that are site-specific (i.e., Category 2 issues under the 2013 GEIS), Petitioners
argument still fails to raise a genuine dispute with the application. NRC regulations require that
an applicant provide information about site-specific cumulative impacts, defined as other past,
present, and reasonably foreseeable future actions occurring in the vicinity of the nuclear plant
that may result in a cumulative effect. 119
Moreover, and contrary to Petitioners assertion, Energy Harbors ER does include such
a cumulative impacts analysis.120 Specifically, section 4.12 of the ER, titled Cumulative
Impacts, includes discussions on air quality, water resources, surface water, ground water,
ecological resources, and human health, to name only a few. 121 For surface water quality,
Energy Harbor concludes that Perry complies with its National Pollutant Discharge Elimination
117 10 C.F.R. pt. 51, subpart A, app. B, tbl. B-1.
118 See ER at 4-2, 6-1.
119 10 C.F.R. § 51.53(c)(3)(ii)(O).
120 See ER at 4-34 to -42.
121 Id. Note that ER section 4.12.2.1 addresses cumulative impacts on air quality, ER section 4.12.5.1 addresses cumulative impacts on terrestrial species, ER section 4.12.5.2 addresses cumulative impacts on aquatic species, and ER section 4.12.8 addresses cumulative impacts on human health.
System permits, that Perrys operations do not contribute to nearby tributary impairment, and
therefore, that the cumulative impact to surface water quality would be SMALL. 122
Likewise, section 4.12.8 of the ER, titled Human Health, discusses both radiological
and non-radiological cumulative human health impacts. 123 Specifically, the ER states,
Operating [Perry] for an additional 20-year period would not cause an increase in annual radioactive effluent releases. The cumulative impact of [Perry]s Unit 1 operation, and the decommissioning activities in the region, would be expected to be SMALL because the plant and [its associated Independent Spent Fuel Storage Installation] are designed to maintain doses [as low as reasonably achievable], and all routine releases and occupational exposure would be subject to federal regulations. 124
From this, the ER concludes that [t]he cumulative impacts on human health are expected to be
SMALL.125
Petitioners neither challenge this cumulative im pacts analysis nor explain how it is in any
way deficient. Because analyses of cumulative impacts are included in the ER, Petitioners have
not raised a genuine dispute of material fact or law and, as such, fail to satisfy 10 C.F.R.
§ 2.309(f)(1)(vi).
Based on the above analysis, the Board concludes that Contention 3 is inadmissible.
IV. CONCLUSION
For the reasons set forth in section II, Petitioners have established their representational
standing in this initial license renewal proceeding for Perry Nuclear Power Plant Unit 1. For the
reasons described in section III, however, we conclude that, under the applicable standards of
122 ER at 4-38.
123 Id. at 4-41.
124 Id.
125 Id. at 4-42.
- 24 -
10 C.F.R. § 2.309(f)(1), Petitioners h ave failed to establish the grounds for admitting any of their
three contentions.
Accordingly, Petitioners hearing request is denied.
For the foregoing reasons, it is the thirteenth day of March 2024, ORDERED that:
- 1. The November 28, 2023 hearing request of petitioners Ohio Nuclear-Free Network
and Beyond Nuclear is denied and this proceeding is terminated.
- 2. Because this memorandum and order rules upon an intervention petition, in
accordance with the provisions of 10 C.F.R. § 2.311, any appeal to the Commission from this
memorandum and order must be taken within twenty-five days after this issuance is served.
THE ATOMIC SAFETY ANDLICENSINGBOARD
/RA/
Michael M. Gibson, Chair ADMINISTRATIVEJUDGE
/RA/
Dr.GaryS.Arnold ADMINISTRATIVEJUDGE
/RA/
Nicholas G. Trikouros ADMINISTRATIVEJUDGE
Rockville, Maryland
March 13, 2024 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
In the Matter of )
)
ENERGY HARBOR NUCLEAR CORP. ) Docket No. 50-440-LR
)
(Perry Nuclear Power Plant, Unit 1) )
)
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing MEMORANDUM and Order (Denying Intervention Petition and Terminating Proceeding) (LBP-24-04) have been served upon the following persons by Electronic Information Exchange.
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of the General Counsel Mail Stop: O-16B33 Mail Stop - O-14A44 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail.resource@nrc.gov David E. Roth, Esq.
Reuben I. Siegman, Esq.
U.S. Nuclear Regulatory Commission Mary F. Woods, Esq.
Office of the Secretary of the Commission Susan H. Vrahoretis, Esq.
Mail Stop: O-16B33 Brian P. Newell, Paralegal Washington, DC 20555-0001 Georgiann E. Hampton, Paralegal E-mail: hearingdocket@nrc.gov Caitlin R. Byrd, Paralegal E-mail: David.Roth@nrc.gov Atomic Safety and Licensing Board Panel Reuben.Siegman@nrc.gov U.S. Nuclear Regulatory Commission Mary.Woods@nrc.gov Washington, DC 20555-0001 Susan.Vrahoretis@nrc.gov Michael M. Gibson, Chair, Administrative Judge Brian.Newell@nrc.gov Nicholas G. Trikouros, Administrative Judge Georgiann.Hampton@nrc.gov Dr. Gary Arnold, Administrative Judge Caitlin.Byrd@nrc.gov Noel M. Johnson, Law Clerk Emily Newman, Law Clerk Counsel for Energy Harbor Nuclear Corp.
E-mail: Michael.Gibson@nrc.gov Morgan, Lewis & Bockius LLP Nicholas.Trikouros@nrc.gov 1111 Pennsylvania Ave., N.W.
Gary.Arnold@nrc.gov Washington, DC 20004 Noel.Johnson@nrc.gov Scott Clausen, Esq.
Emily.Newman@nrc.gov Ryan K. Lighty, Esq.
Timothy Matthews, Esq.
Molly Mattison, Esq.
E-mail: Paul.Bessette@morganlewis.com Ryan.Lighty@morganlewis.com Scott.Clausen@morganlewis.com Molly.Mattison@morganlewis.com
Perry Nuclear Power Plant, Docket No. 50-440-LR MEMORANDUM and Order (Denying Intervention Petition and Terminating Proceeding)
Counsel for the Ohio Nuclear-Free Network and Beyond Nuclear Terry J. Lodge 316 North Michigan Street, Suite 520 Toledo, OH 43604 E-mail: tjlodge50@yahoo.com
Office of the Secretary of the Commission
Dated at Rockville, Maryland, this 13th day of March 2024.
2