ML24337A176
| ML24337A176 | |
| Person / Time | |
|---|---|
| Site: | Oconee  |
| Issue date: | 06/24/2024 |
| From: | Mary Woods NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| RAS 57101, 50-269-SLR-2, 50-270-SLR-2, 50-287-SLR-2, ASLBP 24-985-03-SLR-BD01, NRC-2908 | |
| Download: ML24337A176 (1) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Duke Energy Carolinas Docket Number:
50-269-SLR-2, 50-270-SLR-2, 50-287-SLR-2 ASLBP Number:
24-985-03-SLR-BD01 Location:
Rockville, Maryland Date:
Monday, June 24, 2024 Work Order No.:
NRC-2908 Pages 1-149 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 DUKE ENERGY CAROLINAS, LLC : 50-269-SLR-2 9
(Oconee Nuclear Station, : 50-270-SLR-2 10 Units 1, 2, and 3)
- 50-287-SLR-2 11
- ASLBP No.
12
- 24-985-03-SLR-BD01 13
x 14 Monday, June 24, 2024 15 Nuclear Regulatory Commission 16 Hearing Room T3-D50 17 11545 Rockville Pike 18 Rockville, Maryland 19 BEFORE:
20 G. PAUL BOLLWERK, Chair 21 SUE H. ABREU, Administrative Judge 22 ARIELLE J. MILLER, Administrative Judge 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 Duke Energy Carolinas, LLC:
2 RYAN K. LIGHTY, ESQ.
3 MOLLY MATTISON, ESQ.
4 of:
1111 Pennsylvania Avenue, N.W.
6 Washington, D.C. 20004 7
202-739-5274 (Lighty) 8 202-739-5540 (Mattison) 9 202-739-3001 (FAX) 10 ryan.lighty@morganlewis.com 11 molly.mattison@morganlewis.com 12 13 On Behalf of Beyond Nuclear and Sierra Club:
14 DIANE CURRAN, ESQ.
15 Of:
Harmon, Curran, Spielburg & Eisenberg, 16 LLP 17 1725 DeSales Street, N.W., Suite 500 18 Washington, D.C. 20036 19 240-393-9285 20 dcurran@harmoncurran.com 21 and 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 PAUL GUNTER 1
Of:
Beyond Nuclear Reactor Oversight Project 2
7304 Carroll Avenue #182 3
Takoma Park, Maryland 20912 4
paul@beyondnuclear.org 5
6 On Behalf of the Nuclear Regulatory Commission:
7 KEVIN BERNSTEIN, ESQ.
8 MARY FRANCES WOOD, ESQ.
9 of:
Office of the General Counsel 10 Mail Stop - O-14 A44 11 U.S. Nuclear Regulatory Commission 12 Washington, D.C. 20555-0001 13 301-415-1001 (Bernstein) 14 516-765-6523 (Wood) 15 kevin.bernstein@nrc.gov 16 mary.woods@nrc.gov 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
1:31 P.M.
2 JUDGE BOLLWERK: Good afternoon, I'm 3
Administrative Judge Paul Bollwerk, the chair of the 4
Atomic Safety and Licensing Board.
5 And today we're here to conduct an initial 6
pre-hearing conference and oral argument in the 7
subsequent license renewal, or SLR, proceeding, in 8
which applicant Duke Energy Carolinas, LLC, or Duke, 9
requested that the 10 Court of Federal Regulations, or 10 CFR Part 50 operating licenses for its Oconee Nuclear 11 Station units 1, 2, and 3, be extended for a second 20 12 year period, that is until February 6, 2053, October 13 6, 2053, and July 19, 2054, respectively.
14 We begin today to noting that this case 15 presents a circumstance in which Duke's June 2021 SLR 16 application is before Licensing Board for a second 17 time, for a determination on whether National 18 Environmental Policy Act, or NEPA, related contentions 19 by petitioner's Beyond Nuclear, Incorporated, and the 20 Sierra Club, Incorporated, are sufficient to allow the 21 Board to admit them for further litigation in this 22 proceeding.
23 Indeed, as is the case with two other 24 currently pending Licensing Board cases, 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
5 those involving SLR applications for the Turkey Point 1
and North Anna facilities, the situation arises from 2
a February 2022 Commission determination in the Turkey 3
Point proceeding, found in CLI-22-2.
4 There, reversing its April 2020 decision 5
in CLI-20-3, the Commission declared that the agency's 6
2013 generic environmental impact statement, or GEIS, 7
for nuclear plant license renewal applied only to the 8
initial renewal period, that is for reactor operating 9
years 40 through 60, and not to the first subsequent 10 renewal period, which encompasses reactor operating 11 years 60 through 80.
12 As a result of that Commission about face, 13 SLR applicants in this case and others, were left with 14 a choice as outlined by the Commission in CLI-22-3.
15 They could await agency adoption of a new 16 GEIS covering the SLR period, along with a revised 17 Table B1 to 10 CFR Part 51, Subpart B, Appendix B, 18 with its environmental impact issue classifications 19 that either allow for applicant adoption of the GEIS's 20 generic impact analysis, so-called category 1 issues, 21 or that require a site-specific impact analysis by the 22 applicant, so-called category 2 issues.
23 Alternatively, they could proceed to 24 develop a revised environmental report providing site-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 specific information on facility related environmental 1
impacts, during the SLR period.
2 Duke chose the revised environmental 3
report approach for the Oconee facility, which 4
ultimately resulted in the NRC staff developing a 5
February 2024 draft site-specific supplemental 6
environmental impact statement, or draft SEIS, 7
assessing the impacts of the proposed action of Oconee 8
subsequent license renewal, and alternatives to 9
10 As to petitioners, whose previous 11 licensing board adjudicated NEPA related challenges, 12 to applicant Duke's Oconee subsequent license renewal 13 application environmental report, were dismissed 14 without prejudice, the Commission also directed in 15 CLI-22-3, that if an applicant chose the revised 16 environmental report alternative with the issuance of 17 the staff's supplemental environmental impact 18 statement, they were to be afforded the opportunity to 19 submit new or amended contentions, albeit without 20 meeting the 10 CFR section 2.309© heightened pleading 21 requirements for newly filed or refiled contentions 22 that might otherwise accrue with such filings.
23 To this end, in response to a February 13, 24 2024 hearing opportunity notice, published in volume 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 89 of the Federal Register at page 10,107, after 1
requesting and receiving a two week filing extension, 2
on April 29, 2024, petitioner submitted a hearing 3
petition that included three contentions contesting 4
various aspects of the NRC staff's draft SEIS.
5 Specifically, that the draft SEIS proves, 6
provides an inadequate risk analysis associated with 7
the failure of the Jocassee Dam, upstream from the 8
Oconee facility, which is the subject of contention 1.
9 That various other Oconee associated risk 10 assessments fail to meet NEPA requirements, which is 11 set forth in contention 2.
12 And, that the draft SEIS fails to address 13 the affects of climate change on Oconee accident 14 risks, which is embodied in contention 3.
15 In answers dated May 31, 2024, while not 16 contesting petitioner's standing, the NRC staff and 17 Duke maintained that all three of their contentions 18 failed to meet one or more of the six 10 CFR section 19 2.309(f)(1) standards, governing contention 20 admissibility on assertion, petitioners sought to 21 counter in their June 7, 2024, reply filing.
22 As outlined in the Licensing Board's June 23 12, 2024 scheduling order, this pre-hearing conference 24 has been convened to conduct an oral argument 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
8 will allow the participants to present their positions 1
regarding, and respond to Board questions concerning, 2
the matter of the admissibility of petitioner's three 3
contentions.
4 Moreover as we noted in that order, not 5
for discussion today will be the issues of 6
petitioner's standing to intervene, and the 7
applicability of this proceeding, the applicability to 8
this proceeding of the Commission's May 16, 2024 9
adoption of a rule declaring that an agency generic 10 environmental analysis would be applicable to both the 11 initial renewal, and first subsequent renewal periods, 12 for nuclear power plants.
13 The latter being excluded because it 14 appears based on NRC staff representations to the 15 Board in conjunction with their May 31 answer, that 16 the rule in question will not become effective until 17 sometime in September 2024, which consistent with 10 18 CFR section 2.309(j), would be well after this Board 19 is to make a determination on the admissibility of 20 petitioners' three contentions.
21 Before beginning the argument, I would 22 like to introduce the Board members and then have 23 representatives of the participants identify 24 themselves for the record, along with any individuals 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 they have designated as available to provide them 1
assistance in responding to the Board's questions.
2 With respect to the Board, seated to my 3
right is Administrative Judge Sue Abreu, an engineer, 4
a nuclear medicine physician, and an attorney who also 5
serves as the Licensing Board panel's Associate Chief 6
Administrative Judge Technical.
7 On my left is Judge Arielle Miller, the 8
Licensing Board panel's newest member who is a nuclear 9
and a mechanical engineer.
10 As I indicated at the outset, my name is 11 Paul Bollwerk, and I am an attorney and the chair of 12 this Licensing Board.
13 With that, let's turn to the participants 14 to identify themselves for the record, starting with 15 petitioners, then moving to the NRC staff, and finally 16 to applicant Duke.
17 Ms. Curran?
18 MS. CURRAN: Good afternoon members of the 19 Licensing Board. My name is Diane Curran. I 20 represent the petitioners Beyond Nuclear, and the 21 Sierra Club.
22 To my left is Paul Gunter, with Beyond 23 Nuclear. And to my right is our expert, Jeffrey 24 Mitman.
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 Thank you.
1 MS. WOODS: Good afternoon, Your Honors.
2 My name is Mary Frances Woods, and I, along with my 3
co-counsel Kevin Bernstein to my right, represent the 4
NRC staff in this matter.
5 And with us today is Mr. Jerry Doger, of 6
the NRC staff seated at my furthest right.
7 Thank you.
8 JUDGE BOLLWERK: Thank you.
9 MR. LIGHTY: Thank you, Your Honor, and may 10 it please the Board. Ryan Lighty, with Morgan Lewis 11
& Bockius, appearing on behalf of Duke Energy 12 Carolinas, LLC.
13 I am joined at counsel table today by my 14 colleague Molly Mattison, and in the audience behind 15 me are representatives from Duke, Tracy Leroy, 16 Rounette Nader, and Greg Robinson.
17 JUDGE BOLLWERK: Thanks to all of you.
18 I would note again that we made available 19 to the participants and interested members of the 20 public, including via the Board's scheduling issuance 21 in this case, an NRC website notice and an agency 22 press release, information on how to assess, how to 23 access this conference by telephone, or on, to access, 24 sorry. To access this conference by telephone on 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
11 listen-only basis.
1 We hope that those members of the public 2
or others who with to listen to this conference, have 3
been able to access the bridge line this afternoon.
4 And, as a courtesy to those members of the 5
public and others who are joining us via listen-only 6
telephone connection, as they start to speak in 7
delivering their argument or responding to Board 8
questions, counsel should please identify themselves 9
so that it will be clear who is talking.
10 I would observe as well that this 11 proceeding is being transcribed, and a transcript 12 should be available to the participants later this 13 week or early next week, via an agency e-filing system 14 notice with incorporation into the NRC's publicly 15 available electronic hearing docket shortly 16 thereafter.
17 As to the process we'll follow for today's 18 argument, as we outlined in our June 12, 2024 19 issuance, each participant's designated representative 20 has been allotted a period of time within which to 21 present that participant's position regarding these 22 matters.
23 We will hear first from petitioners, who 24 have been given a total of 30 minutes, of which 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
12 may reserve up to 10 minutes for a rebuttal 1
presentation following the NRC staff, and Duke 2
presentations.
3 The staff and Duke will be heard from in 4
that order, have each been allotted 20 minutes to 5
present their arguments.
6 And, I would note that in contrast to the 7
first Board argument regarding Duke's Oconee SLR 8
application, we are hearing from the NRC staff first 9
since the focus of petitioners' contentions is on its 10 draft SEIS, rather than the environmental report 11 submitted by the applicant.
12 And, while Board members normally might 13 interpose questions during a participant's argument 14 presentation, in this instance we will endeavor to 15 wait until all the participant presentations are 16 conducted.
17 Then, following a short break, we will 18 explore questions that have arisen, in light of their 19 presentations and filings, regarding the three 20 contentions that are the focus of today's argument.
21 I would observe as well, that the matters 22 at issue before the Board have been fully briefed, and 23 we've read the participants' pleadings.
24 Accordingly, as we indicated in our June 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 12, 2024 order, we hope the participants and their 1
arguments will focus on identifying the principle 2
points in controversy, and the information that 3
supports or rebuts their legal and/or factual claim 4
regarding those matters.
5 And as we also noted there, because this 6
argument is not an evidentiary hearing, participants 7
should not attempt to introduce evidence during this 8
argument.
9 And finally, this entire session hopefully 10 will go not more than 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br />.
11 All that being said, turning to Ms.
12 Curran, how much time do you wish to reserve for 13 rebuttal?
14 MS. CURRAN: 10 minutes, please.
15 JUDGE BOLLWERK: All right.
16 And, I believe you have the floor.
17 MS. CURRAN: Thank you.
18 The petitioners really appreciate this 19 opportunity to present oral argument on their hearing 20 request.
21 We're aware that we have members who are 22 listening in to this argument, and this is a very 23 important matter to them.
24 I just want to start by going over 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
14 three, three essential facts that are keeping the 1
petitioners' members awake at night about the 2
proposals for another 20 years of operation for the 3
Oconee reactors.
4 These three reactors lie directly below 5
two large earthen dams. The 385 foot high Rockville 6
Jocassee Dam, and the 170 foot high Keowee Dam, 7
directly above the Oconee site.
8 Together, these dams impound 2 million 9
acre feet of water, yet the three reactors were never 10 designed to withstand a flood from the failure of 11 either dam, because flooding was not considered a 12 credible accident in the 1970s when the reactors were 13 built.
14
- Second, 15 18 The emergency electricity supply is also 21 vulnerable to flooding because it is built into the 22 Keowee Dam itself, and could be overwhelmed in a large 23 flood.
24
- Finally, in the
- 1980s, Duke added 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 additional equipment to improve safety at Oconee, but 1
it is not safety related; it is not single failure 2
proof; and, it is not redundant.
3 It is called the stand by shut down 4
facility. It has one diesel generator, not two, but 5
it is located below grade and is again, not redundant.
6 Currently, the SSF is protected to a level 7
of only by a surrounding wall.
8 The critical safety equipment is not protected by any 9
wall.
10 Despite these serious safety problems, 11 Duke is proposing to operate the Oconee reactors 12 another 20 years past their expiration dates of 2033 13 and 2034.
14 The NRC's draft EIS, the subject of our 15 contentions in our view, has glossed over significant 16 environmental risk posed by the Oconee reactors, with 17 a finding that the environmental impacts of accidents 18 during the SLR term, are small.
19 Petitioners seek accountability by the NRC 20 staff, for this inadequate environmental analysis, and 21 their three contentions.
22 And now, I'd just like to go through each 23 contention. And again, I will focus on the key issues 24 that, not regurgitate everything that we have written 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 in our briefs.
1 Contention 1 focuses on the NRC's attempt 2
to achieve consistency between its adequate protection 3
review for flooding at the Oconee site, and its post-4 Fukushima review.
5 On page F4 of the draft EIS it says, on 6
November 17, 2020, the NRC staff completed its review 7
for Oconee Station, and concluded that no further 8
regulatory actions were needed to ensure adequate 9
protection, or compliance with regulatory 10 requirements, including site-specific external hazards 11 information, reconfirming the acceptability of Oconee 12 Station's design basis.
13 We argue that the assertion of the draft 14 EIS that no further regulatory actions are needed to 15 ensure adequate protection, is inconsistent with the 16 fact that in 2011, the NRC set the flood height 17 against which the entire Oconee site should be 18 protected, at above grade.
19 The NRC said this was necessary for 20 adequate protection of public health and safety. That 21 is the language we find in section 182 of the Atomic 22 Energy Act, also expressed as no undue risk.
23 It is the gold standard of the Atomic 24 Energy Act, a minimal level of safety 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
17 required.
1 That safety finding has never been 2
retracted. It has never been repudiated. It has 3
basically never been addressed since then.
4 Instead, on a separate track, after the 5
Fukushima accident, the NRC staff reduced that 6
required flood depth by
, to about 7
It's from feet, to feet.
8 While the post-Fukushima review did seem 9
to start out as an Atomic Energy Act-based review, 10 that is certainly language that you can find in the 11 request for information in the 5054 letter.
12 The actual review documents where the 13 staff looked at the issues and made findings about the 14 adequacy of flood protection, do not contain the 15 adequate protection level. The language.
16 There are many documents here. And we 17 have looked at every single one. There's only one 18 document that actually uses, a post-Fukushima document 19 that actually uses adequate protection language.
20 And that is a safety evaluation of three 21 mitigation measures that are separate from the issue 22 of flooding protection; how high the wall should be.
23 So, the NRC brought this level down from 24 feet, to feet. And 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
18 also changed the requirement that the entire site 1
should be protected to feet, to the 2
standby SSF, standby shutdown facility should be 3
protected.
4 And that is, the secondary system in 5
addition to the critical safety equipment that is now 6
to be not protected at all, from a flood.
7 We recognize that in LBP 22-01, the 8
Licensing Board rejected a contention that was based 9
on this inconsistency.
10 So, I want to spend a little time 11 addressing what is different, and what is the same 12 about this contention.
13 First, what is the same is we are indeed, 14 attributing great legal significance to the NRC's 15 choice of words in the 2011 safety evaluation, and the 16 NRC's choice of different words in the post-Fukushima 17 review.
18 And there's two reasons for this. One is 19 the phrase adequate protection has enormous regulatory 20 significance, both under the Atomic Energy Act, and 21 NEPA.
22 If the NRC says in a NEPA document, we 23 have done an adequate protection safety review and we 24 find that this proposal meets our adequate protection 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 requirements, that effectively answers the question of 1
whether the impacts of any activity covered by those 2
findings, is significant.
3 It takes it away. It's like presenting a 4
ticket. Here's my ticket to be excused from any 5
detailed review of this particular issue, because it 6
is enveloped by these minimal standards and 7
requirements for adequate protection.
8 So this is not insignificant, this 9
language. And, there is a consistent pattern here of 10 using it in the 2011 safety evaluation, and then that 11 language simply disappearing.
12 Second, there's a very clear practical 13 difference between the circumstances, or how these 14 words were applied.
15 The adequate protection standard was 16 applied to set a minimum flood level of 17 feet for the entire site.
18 And, words like effective were used to 19 reduce that flood height from feet, to 20 feet.
21 And, there was no attempt by the NRC in 22 the post-Fukushima reviews, to go back to that 2011 23 safety finding and say, we thought that was 24 conservative but now we've done a new analysis 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
20 still conservative, that still meets the adequate 1
protection standard.
2 That was never done. Just two reviews 3
going on separate tracks.
4 And what's interesting about the draft 5
EIS, and what's important to us is, they come together 6
there.
7 Because in the draft EIS, the NRC's taking 8
the approach they usually take for environmental 9
analysis, which is to say anything that's covered by 10 the adequate protection standard, we don't really have 11 to tell you a lot more about it except that we've 12 dealt with it, you've got the protection, the 13 statutory protection of the Atomic Energy Act, so 14 we're done with that.
15 But they also had to address the post-16 Fukushima review, because that's the most recent 17 review where the NRC asked licensees, update your 18 seismic risk evaluations. Update your flooding 19 evaluations.
20 And in their request for more information, 21 the 5054 letter, the agency itself said, we want to 22 evaluate whether more actions, more regulatory 23 actions, are needed for the adequate protection 24 standard to meet 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
21 But as I was saying, in the end when the 1
review was finished, at least with respect to flood 2
protection at Oconee, that was the adequate protection 3
standard was never revisited.
4 So, we've got a situation here where the 5
draft EIS is saying something that just isn't correct.
6 There is no place in any of this post-Fukushima 7
correspondence, where you can find a statement that 8
adequate protection is met with these new post-9 Fukushima flood protection measures.
10 You just can't find it. You can't find 11 anyplace where they say, we have reviewed the design 12 basis and found that it is adequate to provide 13 adequate protection under the statute.
14 That's what the draft EIS says, for the 15 purpose of assuring the public that the Atomic Energy 16 Act-based safety system, is adequate to ensure that 17 impacts are insignificant or small.
18 And, we have raised an admissible issue 19 that it's just not supported. And, this raise brings 20 me to what's different about this proceeding from the 21 one in 2022.
22 It's because in that first contention in 23 2021 I think was when we filed it, we were, I think we 24 were making essentially a contention of omission 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
22 we said the environmental report didn't address the 1
safety significance of the
- 2011, or of the 2
environmental significance of this 2011 safety 3
evaluation.
4 But with this contention, we are 5
contesting language in the draft EIS. We are 6
contesting the draft EIS's representation about 7
compliance with the adequate protections standard in 8
the Atomic Energy Act.
9 And how that effects the significance of 10 impact. That's a really important difference.
11 The proceeding is also different in the 12 respect that there's no threshold issue here, of 13 whether a regulatory waiver should be granted.
14 Which was present there, because we were 15 challenging the 2013 generic environmental impact 16 statement.
17 A decision on whether to grant a waiver 18 petition is very much a discretionary decision by the 19 Licensing Board. And, there's always some discretion 20 involved in the Licensing Board's decisions.
21 But I would say that that's an extreme end 22 of discretion where you're trying to decide well, are 23 we going to waive a regulation to let these people 24 address a site-specific issue.
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 This is a pure question of admissibility 1
under 10 CFR 2.309. Have we provided enough 2
information to show you that we have a material 3
dispute with the NRC staff about the findings, the 4
environmental findings of the EIS.
5 And, we believe that we have met that 6
standard. And so, the situation is different.
7 But I've explained what's the same and 8
what's different. I would just ask you to please 9
review our contention in the light of the new 10 information that we have provided.
11 And also, just to revisit the issue that 12 we raised the first time, which is, what is the legal 13 significance under NEPA, when an agency uses the words 14 adequate protection.
15 That was an issue we raise the first time 16 and we're still raising it now.
17 I think I am getting to the end of my 20 18 minutes.
19 JUDGE BOLLWERK: You have about 5 minutes.
20 MS. CURRAN: I'm going to move to, 21 contention 2 is more of a technical dispute between 22 the petitioners and the NRC, and the NRC staff and 23 Duke, about whether we have supported certain 24 criticisms of the draft EIS.
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 And, I think I'll just wait to see if we 1
have questions on that, but I do want to talk a little 2
bit about contention 3.
3 Going back to the concerns that I raised 4
at the beginning, about the lack of the fact that the 5
Oconee reactors are beneath two dams with large lakes 6
behind them, and that flooding was never considered a 7
credible event when these plants were designed.
8 The safety equipment was not designed to 9
withstand flooding. We now have as a society, the 10 existential threat of climate change, which we know is 11 going to increase precipitation. It's going to 12 increase the volume, and it's going to increase the 13 frequency.
14 This is established now and we rely, we 15 have a very, a succinct but detailed analysis by Mr.
16 Mitman and his expert report, that talks about, relies 17 heavily on this recent GAO report, which finds that a) 18 climate change is a real threat to nuclear facilities.
19 That the NRC acknowledges, but has not systematically 20 dealt with.
21 Not in its licensing decisions. And 22 doesn't really have a program for dealing with the 23 issue in the decisionmaking process.
24 They are acknowledging that it's something 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 to be looked at, but of course, we know that NEPA 1
requires consideration of all relevant factors in the 2
course of the decision that's being made.
3 You might not, the government might not 4
know everything, but the government is obliged under 5
NEPA to apply the information, the best information 6
that it has, to the decisionmaking process.
7 And, we know the NRC has ways to predict 8
the likelihood of future weather events becoming more 9
extreme.
10 And we're talking about over the next 30 11 years from now, right, because the licenses expire 12 around 2033, 2034, and they're due to go out another 13 20 years from there.
14 So, we're talking about right now trying 15 to predict what could happen over the next 30 years.
16 The NRC has tools to do this.
17 Mr. Mitman has explained how probable 18 maximum precipitation and local precipitation on the 19 plant could, in increased precipitation events, affect 20 flooding at the site.
21 This is a real issue for Oconee, and we 22 believe that we've raised enough evidence here, and 23 including general concerns of the GAO and site-24 specific evidence about the Oconee site from 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
26 Mitman, to raise an admissible contention.
1 And then on that note, I just want to say 2
one more thing about the attempted distinction by the 3
staff and Duke, between safety and environmental 4
concerns.
5 In our view, that is not a legitimate 6
distinction under NEPA. NEPA isn't separate from the 7
Atomic Energy Act concerns of safety, public health 8
and safety.
9 NEPA embraces those concerns. Because 10 NEPA has to be complied with to the fullest extent 11 possible.
12 Nothing in NEPA or the Atomic Energy Act 13 says, the Atomic Energy Act is separate over here and 14 its concerns are not included in NEPA.
15 So, even though the GAP report is 16 expressed in terms of safety, that is still something 17 that is a concern of NEPA.
18 Public safety is the human environment.
19 And we are talking about an existential threat here, 20 to the human environment.
21 And, I think I will stop there.
22 JUDGE BOLLWERK: All right, thank you very 23 much.
24 All right, we'll turn to the NRC staff.
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27 MS. WOODS: Good afternoon, may it please 1
the Board.
2 As I mentioned earlier, my name is Mary 3
Frances Woods, and I will be addressing petitioners' 4
proposed contentions 1 and 2. And my colleague, Mr.
5 Bernstein, will be addressing proposed contention 3.
6 The issue before the Licensing Board today 7
is whether the petitioners have met the requirements 8
for contention admissibility in the matter of the 9
subsequent license renewal of Oconee Station.
10 Petitioners bear the burden to demonstrate 11 an admissible contention. For the reasons set forth 12 in the staff's responsive pleading, petitioners have 13 not proffered at least one admissible contention.
14 And accordingly, the petitioners' request 15 for hearing and petition for leave to intervene, 16 should be denied.
17 Petitioners asserted three contentions 18 challenging various analyses regarding accident risk 19 at Oconee Station.
20 For clarity, when the NRC staff references 21 the 2024 February draft site-specific environmental 22 impact statement, the acronym DEIS will be used.
23 In proposed contention 1, petitioners 24 assert challenges to the licensee's compliance with 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 its current licensing basis regarding flood protection 1
measures.
2 Specifically, regarding adequate 3
protection of a failure at the Jocassee Dam, 4
petitioners attempt to link this to the NRC staff's 5
obligations under the National Environmental Policy 6
Act, or NEPA.
7 But what the petitioners are actually 8
challenging and what is discussed repeatedly in their 9
pleading, is whether the site is adequately protected 10 against such a failure of the Jocassee Dam.
11 This is a safety related, and not an 12 environmental issue.
13 Whether a site is adequately protected 14 against flood hazards, is a question of compliance 15 with the current licensing basis.
16 This goes to how the site is currently 17 operating. Accordingly, the NRC maintains an ongoing 18 oversight of such compliance to ensure safe 19 operations.
20 Per the Commission's regulations in 10 CFR 21 54.30, matters not subject to renewal review, the 22 licensee's compliance with its current licensing basis 23 is not within the scope of a license renewal review.
24 This, along with the requirement that 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
29 proposed contention be within the scope of the 1
proceeding to be admissible, renders proposed 2
contention 1 inadmissible.
3 Indeed, the Licensing Board in Sequoia, 4
LBP 13-8, dismissed a similar challenge to the flood 5
protection measures during that license renewal 6
proceeding.
7 This proposed contention here is not 8
within the scope of the license renewal, and 9
consequently, does not demonstrate that the issues 10 raised are material to the findings the NRC staff must 11 make in the subsequent license renewal application 12 review.
13 To be clear, finding this proposed 14 contingent inadmissible in an adjudicatory hearing 15 does not relieve the NRC staff or the licensee, from 16 ensuring that the licensee is in compliance with its 17 current licensing basis, nor does such a denial remove 18 the NRC staff's ongoing oversight of flood protection 19 issues.
20 Further, denial of a contention that is 21 not within the scope of this proceeding, does not 22 relieve the NRC staff of its duty to comply with NEPA, 23 and the NRC's implementing regulations for license 24 renewal.
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30 Regarding proposed contention 2, the 1
substance of the pleading is provided in the 2
petitioners' expert's report.
3 Each of the six individual issues 4
asserted, fails to show that a genuine dispute on a 5
material issue of law or fact, exists.
6 Regarding issue 5, on the state of the art 7
reactor consequence analysis, while petitioners' reply 8
elaborates on the petitioners' expert statements, and 9
that it provides statements from the DEIS, it does not 10 identify such a deficiency in the DEIS.
11 Petitioners must show there is a genuine 12 dispute on a material issue of law or fact.
13 Staff indicates that the intent of this 14 information was to add to the NRC staff's updated 15 understanding, and did not provide any new analysis of 16 quantified, or damage frequencies, or CEF.
17 While the staff is certainly not saying 18 that the petitioners are, need to prove their 19 contentions at the contention admissibility stage, 20 asserting that the petitioners' expert cannot identify 21 what is useful from the information provided, is not 22 sufficient to show such a genuine dispute on a 23 material issue of fact or law exists.
24 For the remaining issues discussed in 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 proposed contention 2, the petitioners' expert also 1
does not show that there is a deficiency in the DEIS 2
with the staff's analysis.
3
- Chiefly, petitioners' expert instead 4
proposes different types of analysis that they think 5
could be done, for different information that they 6
think should be included in the DEIS.
7 For example, petitioners' expert proffers 8
that if other information were considered, then 9
various outcomes could be different.
10 This is not sufficient to demonstrate that 11 a deficiency in the DEIS exists.
12 The Commission has held in cases like 13 Seabrook, CLI 12-5, that in quote, where the analysis 14 rests largely on selected inputs, it may always be 15 possible to concede of alternative and more 16 conservative inputs whose use in the analysis could 17 result in greater estimated accident consequences, end 18 quote.
19
- This, however, does not render a
20 contention admissible under NRC regulations.
21 Petitioners must point to some deficiency in the DEIS 22 and in quote, not merely suggestions of other ways an 23 analysis could have been done, or other details that 24 could have been included, end quote.
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
32 Asserting an alternative method to conduct 1
a calculation is not sufficient to demonstrate that 2
there is such a deficiency in the DEIS.
3 If that were true, any adjustment to any 4
calculation staff considers, could be subject to a 5
challenge in an adjudicatory proceeding.
6 This is simply not the case. Petitioners 7
need to point to a deficiency in the DEIS.
8 Petitioners' expert wants to different 9
analyses to be done, or other information to be 10 considered. But have not identified a deficiency in 11 the DEIS.
12 Therefore, petitioners have not shown that 13 a genuine dispute on a material issue of law or fact 14 exists.
15 Accordingly, proposed contingent 2 does 16 not proffer an admissible contention.
17 At this point, I will now turn to Mr.
18 Bernstein for a discussion of proposed contention 3.
19 Thank you.
20 MR. BERNSTEIN: May it please the Board.
21 My name is Kevin Bernstein, and I will be addressing 22 proposed contention 3.
23 In proposed contention 3, petitioners 24 assert that staff's analysis in the DEIS is deficient, 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 because it does not consider the affects of climate 1
change on accident risk at, for Oconee Station.
2 This contention is inadmissible because it 3
is not within the scope of the license renewal 4
environmental review, and because petitioners do not 5
demonstrate a genuine dispute of material issue of 6
law, or facts.
7 First, this challenge is not within the 8
scope of staff's license renewal environmental review.
9 Staff's environmental review analyzes the effects of 10 the nuclear power plant on the environment, not the 11 effects of environmental conditions on a nuclear power 12 plant.
13 Nevertheless, petitioners claim that their 14 contention is an environmental contention, despite 15 raising a safety related issue.
16 Petitioners assert that climate change 17 will increase accident risk, but petitioners' focus is 18 on a safety concern about the affects of environmental 19 conditions on a nuclear power plant.
20 Petitioners have not asserted a deficiency 21 in any way in which staff has conducted its 22 environmental analysis.
23 And, has instead asserted that the 24 underlying safety analysis might not be valid leading 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
34 up to, and during the subsequent license renewal term.
1 The ability for a nuclear power plant to 2
cope with natural phenomena hazards is an ongoing 3
operational issue, which is subject to staff's ongoing 4
oversight programs.
5 As new information becomes available about 6
changing environmental conditions, staff evaluates it 7
to determine if any safety related changes are needed 8
to ensure safe operating conditions for compliance 9
with the plant's technical specifications.
10 The ability for a nuclear power plant to 11 cope with external events is not unique to license 12 renewal.
13 The license renewal safety evaluation is 14 limited to issues related to aging management 15 programs, and time limited aging analysis.
16 The proposed contentions here of effects 17 of climate change on accident risk, is unrelated to 18 the safety reviews for aging management programs in 19 time limited aging analyses.
20 Petitioners' expert focuses on the safety 21 related analyses for its current licensing basis, and 22 not the DEIS.
23 Therefore, this contention is not within 24 the scope of either the environmental or safety 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
- reviews, and is therefore, 1
inadmissible.
2 Second, petitioners fail to show a genuine 3
dispute exists with the DEIS on a material issue of 4
law or fact.
5 Their assertions and speculations, even by 6
an expert, an insufficient to trigger a full 7
adjudicatory proceeding.
8 In Turkey Point, LEP-24-03, the Board 9
recently found that similar arguments raised by 10 petitioner's expert about the affects of climate 11 change on accident risk, did not provide sufficient 12 support to raise a genuine material dispute, and was 13 therefore, inadmissible.
14 Here, petitioners' expert describes a 15 scenario where a probable maximum precipitation event 16 leads to an overtopping event at Jocassee Dam.
17 Petitioners' expert speculates that 18 climate change could cause this accident scenario to 19 become a credible event, and appears to suggest that 20 the flood hazard's evaluation at Oconee Station be 21 updated.
22 However, petitioners' expert does not 23 substantively gauge with one of the major components 24 of the safety analysis he cites to.
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36 Notably, the multiple and diverse methods 1
of passing water at Jocassee Dam. Therefore, 2
petitioners' expert described accident scenario is 3
speculative, and does not demonstrate a genuine 4
dispute in material issue of law, or facts.
5 To take a brief step back, petitioners' 6
focus on updating the probable maximum precipitation 7
data in the 2015 flood hazards reevaluation report, 8
further shows that we are discussing a safety issue 9
related to the current license basis for Oconee 10 Station.
11 This is not within the scope of license 12 renewal.
13 Petitioners' attempt to distinguish their 14 concerns from the limited scope of the license renewal 15 environmental review, based on the assertion that the 16 DEIS must account for accident risk during the term of 17 license renewal.
18 The effects of postulated accident on the 19 environment during the renewed license term, is 20 discussed in depth at Appendix F.
21 While petitioners' expert disputes the 22 2015 flood hazards reevaluation report, petitioners 23 make just a passing reference to the DEIS.
24 Petitioners' expert cites to the CEQ 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 guidance and a recent GAO report on climate change 1
risk to nuclear power plants, to assert that the DEIS 2
should consider the effects of climate change on 3
accident risk.
4 However, the NRC is an independent agency.
5 CEQ guidance is not binding on the NRC, unless the 6
Commission has expressly adopted the guidance as a 7
requirement.
8 Therefore, the CEQ guidance does not show 9
the substantive requirement the staff must follow to 10 prepare to prepare an EIS.
11 To the GAO report. It is a general report 12 that makes recommendations for executive action at the 13 NRC.
14 It has limited relevance to subsequent 15 license renewal at Oconee Station, especially as it 16 disclaims multiple times that quote, this analysis 17 does not take into account for any protective measures 18 plants may have taken to mitigate the risks of 19 selective natural hazards, end quote.
20 While petitioners assert that the NRC 21 should use climate projections and safety analyses of 22 natural phenomena hazards going forward, this is not 23 a deficiency in the DEIS.
24 And, is merely a suggestion by another 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 method to account for external hazards at nuclear 1
power plants, in the safety analyses for the current 2
licensing basis.
3 Petitioners' attempt to use the DEIS to 4
challenge the underlying safety analysis at Oconee 5
Station, without showing a genuine dispute exists with 6
the DEIS on material issue of law or fact.
7 Therefore, as petitioners do not show a 8
genuine dispute of material issue, or law or facts 9
with the DEIS exists, petitioners have not proposed an 10 admissible contention in proposed contention 3.
11 In conclusion, the petitioners in this 12 matter have not provided at least one admissible 13 contention and therefore, this petition for a hearing 14 should be denied.
15 Thank you.
16 JUDGE BOLLWERK: All right, thank you.
17 Mr. Lighty?
18 MR. LIGHTY: Thank you, Your Honors. Ryan 19 Lighty, for the applicant.
20 I'd like to start with proposed contention 21 1, which alleges that the discussion of the 22 environmental impacts of hypothetical design basis 23 accident in the DSEIS, fails to satisfy NEPA because 24 section F.1 allegedly mischaracterizes the NRC'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
39 review of external hazards information, over the past 1
few decades.
2 As explained in our answer
- brief, 3
petitioners' claims simply misconstrue the relevant 4
regulatory history of those NRC's reviews.
5 And, I won't repeat those arguments here, 6
but I would like to point out a few key points that 7
underline the defects in those claims.
8 First of all, if petitioners' selective 9
reading of the relevant regulatory history were in 10 fact correct, it would mean that the NRC has utterly 11 abandoned its duty to regulate radiological safety for 12 the past 13 years.
13 It would mean that the NRC simply brushed 14 aside the Atomic Energy Act altogether. But that 15 claim is both entirely unsupported and frankly, it's 16 absurd.
17 As a matter of law, the NRC is entitled to 18 a presumption of administrative regularity. The 19 regulatory docket is chock full of information 20 demonstrating that the NRC has not abandoned its 21 statutory obligations but rather, has done exactly 22 what is accurately summarized on page F-4 of the 23 DSEIS.
24 Petitioners simply choose to embrace 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
40 tortured, and selective reading of the regulatory 1
history. But far more is required for an admissible 2
contention.
3 Second, it's important to note that the 4
basis for the NRC's conclusion regarding the 5
environmental impacts of a hypothetical design basis 6
accident, presented on page F-5 of the DSEIS.
7 It doesn't say what the petitioners claim 8
that it says. The conclusion rests on the existence 9
of quote, the requirements to maintain the licensing 10 basis, and implement aging management programs during 11 the SLR term, end quote.
12 That's not about compliance. That's about 13 the existence of the requirements themselves.
14 In other words, the fact that these 15 requirements exist is what provides the basis for the 16 conclusion.
17 The conclusion rests on the entire 18 regulatory framework and so, the, that framework 19 contemplates inspections. It contemplates oversight.
20 It contemplates enforcement.
21 In other words, the conclusion doesn't 22 rest on a per se finding of absolute compliance at all 23 times.
24 And, it doesn't require a determination 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 that there is compliance with the design basis today, 1
for what may happen some time in the future during the 2
SLR term.
3 It's the fact that the requirements exist 4
at all, and that the NRC is entitled to a presumption 5
of administrative regularity to enforce those 6
requirements at any point in the future. That's what 7
undergirds the conclusion.
8 And, the petitioners have not challenged 9
the existence of the requirements themselves. And, I 10 think that's a fundamental defect in their contention 11 1.
12 And so, for those two reasons and the 13 other reasons outlined in our brief, we don't think 14 that the petitioners have raised an admissible 15 contention in their claims regarding contention 1.
16 Turning now to contention 2, proposed 17 contention 2 alleges that certain portions of the 18 DSEIS analysis of hypothetical severe accidents, are 19 deficient.
20 As noted in our answer pleading, the 21 proposed contention in the petition is barely over one 22 page in length.
23 And, it's cursory discussion fails to 24 satisfy the admissibility requirements in the four 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
42 corners of the petition itself.
1 In their reply at page 17, petitioners 2
responded that they quote, gave Duke adequate notice 3
of their legal and factual claims, end quote.
4 But that assertion does not rebut Duke's 5
observation regarding the superficial nature of those 6
claims, as presented in the petition.
7 As the Commission has repeatedly held, for 8
example in the Indian Point proceeding, CLI-16-5, a 9
petitioner cannot satisfy the admissibility criteria 10 through mere notice pleading.
11 Notice pleading is not enough. And the 12 petition provides nothing more than that. And, 13 certainly nothing that would satisfy this trick by 14 design admissibility criteria requirement in section 15 2.309(f)(1).
16 Second, for each of the sub-arguments that 17 were presented by the petitioners and contention 2, 18 it's important to step back and understand the context 19 of Appendix F in the DSEIS.
20 And, that's what contention 2 purports to 21 challenge. As noted in the introductory text on page 22 F-1 of that Appendix, quote, the staff's evaluation 23 considers new and significant information for 24 postulated severe accidents.
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43 New and significant information is a term 1
of art in NEPA reviews. NEPA allows agencies to 2
incorporate by reference, and rely on prior 3
environmental documents, subject to a further review 4
to confirm whether there is any new information that 5
has arisen since that prior document, that would be 6
significant.
7 Meaning, something that would change the 8
previous conclusion.
9 Petitioners' arguments here entirely 10 misapprehend that new and significant information 11 framework. They're misunderstanding the purpose of 12 Appendix F in the context of the DSEIS.
13 Petitioners seem to think that Appendix F 14 embarks on an entirely new analysis of severe accident 15 risk from scratch. But that's incorrect. That's not 16 the purpose of these various sub-sections of Appendix 17 F.
18 For example, in the external events 19 discussion, the purpose of the review is to determine 20 has there been any new information since the previous 21 severe accidents analysis, that would alter that 22 conclusion.
23 And, the NRC staff in each of these sub-24 sections ultimately concludes no. There has been 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
44 information, but None of it is significant to the 1
point that it would alter the ultimate conclusion.
2 And, the petitioners don't seem to grapple 3
with that context. And that's a very important 4
fundamental defect in all of their arguments.
5 And I'll give you one example. So, the 6
petitioners challenge the discussion of the SOARCA 7
that's on page F-22 in the DSEIS.
8 And, their assertion is that its unclear 9
whether the information in that discussion is relevant 10 to Oconee.
11 And, petitioners appear to believe that 12 somehow numerical data from the SOARCA studies was 13 used or credited, in some updated quantified risk 14 analysis performed by the NRC.
15 But, that criticism misapprehends the 16 entire purpose for which those SOARCA studies were 17 reviewed.
18 They were not used to perform a new 19 quantitative risk analysis at Oconee. They were 20 evaluated to determine whether they provide any new 21 information that would alter the prior conclusion, 22 that the probability weighted impacts of hypothetical 23 severe accidents are small.
24 And, the NRC concluded that the SOARCA 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 studies did not alter that conclusion.
1 So, even if Mr. Mitman were correct that 2
those studies are not applicable to Oconee, that 3
circumstance would yield the exact same conclusion 4
that the NRC staff already reached. That the studies 5
do not alter the prior conclusion.
6 In other words, by misapprehending the 7
purpose of the review, petitioners simply have not 8
raised an admissible challenge to Appendix F.
9 In turning finally to proposed contention 10 3, petitioners allege that the 2023 DSEIS does not 11 satisfy NEPA, because it fails to evaluate the affects 12 of climate change on accident risk.
13 As noted in our brief, the petitioners' 14 conclusory challenge fails to raise a genuine dispute.
15 Again, because it fails to engage with the relevant 16 analyses in any detail.
17 And, I'd like to point out just one 18 example. The petitioners tout the GAO report as 19 providing new and significant information that 20 demonstrates some material defect in the DSEIS.
21 But the post-Fukushima flooding hazard 22 evaluation for Oconee used again, just one example, an 23 extraordinarily conservative rainfall assumption to 24 evaluate a local intense precipitation event.
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46 That evaluation assumed atmospheric 1
moisture that delivers 18.95 inches of rain in a 24-2 hour period.
3 That's an extraordinary amount of rain.
4 And, placed in context where the maximum historical 5
precipitation event in a 24-hour period at Oconee, was 6
12.32 inches.
7 In other words, the analysis incorporated 8
an astonishing 50 percent margin of conservatism.
9 Petitioners fail to identify anything in 10 the GAO report or anywhere else, showing that this 11 extraordinary margin is insufficient to account for 12 potential rainfall increases, as a result of climate 13 change.
14 They simply don't grapple with the 15 information.
16 And, I've looked through the GAO report.
17 I found no information in there that would support 18 such a claim, even though it's not the other parties, 19 or the Board's job to go through the GAO report to 20 identify information that might support a contention.
21 But nevertheless, we've done that review 22 and found nothing that would.
23 And finally, I'd like to direct your 24 attention to the NRC's official response to the GAO 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 report. It's provided in Appendix 4 to the report 1
itself.
2 And, in that official response letter, the 3
NRC flat out disagrees with the GAO's conclusion that 4
climate change is not addressed in NRC licensing 5
actions.
6 The NRC noted that it accounts for climate 7
change through quote, layers of conservatism and 8
defense in-depth, end quote, to account for and I 9
quote, any plausible natural hazard in combinations at 10 a site for the licensed operations lifetime of the 11 reactor, including those that could result from 12 climate change.
13 Specifically, the processes,
- tools, 14 methods, models, data, and additional margins, end 15 quote.
16 Petitioners do not grapple with those 17 processes, with those tools, with those methods, with 18 those models, with those data, with the additional 19 margins.
20 And because they have ignored this 21 relevant information, they have not raised a genuine 22 dispute with the draft EIS.
23 And for that reason, contention 3 also is 24 inadmissible.
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48 Thank you, Your Honors, and I look forward 1
to answering your questions.
2 MS. MILLER: All right.
3 JUDGE BOLLWERK: Mr. Curran, back to you.
4 MS. CURRAN: I was wondering if we could 5
take the break now, so that I could consult with Mr.
6 Mitman before we respond.
7 Would that be all right? And then I don't 8
mind after that, launching into your questions.
9 JUDGE BOLLWERK: Okay.
10 All right, why don't we go ahead and take 11 a 10 minute break. Let's come back at 35 after the 12 hour1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />.
13 MS. CURRAN: Thanks.
14 JUDGE BOLLWERK: I believe that would be 15 right.
16 (Whereupon, the above-entitled matter went 17 off the record at 2:24 p.m. and resumed at 2:36 p.m.)
18 JUDGE BOLLWERK: All right, we have taken 19 a brief break and I believe Ms. Curran is now going to 20 give us her rebuttal to what we've heard over the past 21 45 minutes or so.
22 MS. CURRAN: Okay, thank you. I'd just 23 like to touch on a few points that we heard in the 24 arguments by the staff and Duke. First of all, on 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
49 issue of the SOARCA analysis, I think the argument was 1
made that this was only included to show that the 2
SOARCA analysis did not change the outcome of a 3
previous environmental analysis.
4 But, you know, these are, this document is 5
read by the general public to get a sense of is this, 6
does this facility pose an environmental risk to me 7
and my community, to my environment? And the SOARCA 8
study is discussed in there as reducing the impacts 9
from an accident, so that's important.
10 You don't read that and say well, that 11 really wasn't considered. They put it in there. I 12 mean, why did they put it in there if it was just to 13 say well, it didn't change our analysis? Anybody who 14 was reading this thing carefully to see what should I 15 worry about will have a
sense of assurance 16 environmental impacts aren't as bad as the government 17 thought in a previous analysis.
18 And Mr. Mitman raises questions about 19 whether this conclusion about reduced impacts is 20 really applicable because it's based on plants of 21 different designs. So, I just wanted to mention that 22 as a good example of you put something in an 23 environmental impact statement, you can expect people 24 to read it for the content of what is being said.
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50 There was another argument that Mr. Mitman 1
proposes different approaches instead of criticizing 2
the analysis in the environmental impact statement.
3 I think if you read Mr. Mitman's report carefully, you 4
will see that he is quite pointed about criticizing 5
the analysis. He doesn't just say I've got another 6
way to do this because we understand that is not 7
adequate.
8 And in this particular example, Mr. Mitman 9
was showing that individual conclusions about 10 environmental impact statements, environmental impacts 11 need to be appropriately aggregated. They can't be 12 looked at in isolation without putting them all 13 together in an appropriate way.
14 On Contention 3, I think I heard it argued 15 that in our example of how climate change could affect 16 the Oconee reactors, we focused on the existing safety 17 analyses for those reactors, and I guess I would ask 18 the question what else could we do? Because there is 19 no environmental analysis of climate change impacts, 20 so we looked at the most useful, relevant documents we 21 could find, which were safety analyses, post-Fukushima 22 safety analyses, and we used those, and those are also 23 referred to in the draft EIS.
24 So, that distinction between safety 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
51 environmental impact issues, it doesn't really hold 1
water for a couple of reasons. One is because if 2
there's no environmental analysis of climate change, 3
you've got to look at what's available, which is the 4
safety analyses, and the other is that safety analyses 5
have environmental implications.
6 And there were a number of arguments that 7
the GAO said it does not consider mitigative measures 8
that may have been implemented, and that the NRC in 9
their response to the GAO said well, we have a lot of 10 conservative in our flooding analysis and that should 11
-- we think that takes care of climate change. There 12 was -- I think those were the main ones.
13 And I think the important thing here is 14 that if the NRC doesn't look at what are the potential 15 effects of climate change in, I mean, predicting what 16 is the increased likelihood of flooding, what's the 17 increased, for any given storm, what's the increased 18 precipitation that one could expect, if they haven't 19 looked at that, then they don't really have a reason 20 to say our analysis is adequately conservative or 21 we've taken appropriate mitigation measures because 22 first you have to look at the problem and then you can 23 look at well, what kind of solutions have we got for 24 this?
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52 Maybe, you know, it could be true well, it 1
turns out that we're already doing plenty to address 2
climate change, but if you don't start out by 3
analyzing what is the nature of the problem, what's 4
the severity of the problem, what does the problem 5
look like over the next 30 years, it doesn't seem to 6
us that the NRC has a basis for assessing its response 7
to climate change before doing that. I think I'll 8
leave it there.
9 JUDGE BOLLWERK: All right, okay, let's, 10 then we'll go to questions then from the board. I had 11 a couple of generic questions I'd like to start off 12 with and then we'll go contention by contention, and 13 as we go through this, we may go jumping back and 14 forth, but we'll try to keep it sort of in that order.
15 And again, my general approach to this is 16 we'll direct our question to one of the parties.
17 We'll then let, depending on what that party is, if 18 it's for instance the staff, we'd probably hear from 19 the applicant next, then from Mr. Curran, and return 20 to the staff to get the final word, and that would be 21 the general approach we use for the questions.
22 And there is some flexibility in that 23 depending on what comes up and what thoughts people 24 have. Those of you that participated the first time 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 in this, and I think everyone here was involved, you 1
know, if we got a little back and forth, then that's 2
not necessarily a bad thing, but we do want to keep it 3
within certain parameters, so that's kind of the 4
general, the ground rules.
5 So, let me start with the staff and just 6
a generic question. Current information on the NRC's 7
public website for the Oconee subsequent license 8
renewal application, last updated in February of 2024, 9
at least as of Friday, indicates the final site-10 specific supplemental EIS for the Oconee subsequent 11 license renewal application will be issued in August 12 2024.
13 Is that state, is that date, excuse me, 14 still accurate, and can you provide any more precise 15 information on when in August that document might be 16 issued, that is early, middle, late August, anything 17 that you can say in that regard?
18 MS. WOODS: I believe that the August date 19 is, in fact, still accurate, but if you would like, I 20 could try to consult with the NRC staff to see if I 21 could get a little bit more specific information.
22 JUDGE BOLLWERK: If you can do that. You 23 know, is that something you can do right now?
24 MS. WOODS: Yes, sir.
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54 JUDGE BOLLWERK: Well, we'd appreciate 1
that then.
2 MS. WOODS: Thank you.
3 JUDGE BOLLWERK: And can I go ahead and 4
ask another question while you're doing that?
5 MS. WOODS: Yes, sir.
6 JUDGE BOLLWERK: Okay, this is actual for 7
petitioner, so. This is sort of a, just a clarifying 8
or making sure I'm not missing something question. To 9
what degree, if any, are any of your three contentions 10 severe accident mitigation alternatives or SAMA 11 contentions?
12 MS. CURRAN: Our contentions are addressed 13 to the NRC's assessment of accident risk. What is the 14 significant accident risk? Because we consider that 15 this is, because of CLI-22-03, this is a legitimate 16 subject of inquiry. If we had been working under the 17 2013 GEIS, we might have had to address severe 18 accident mitigation alternatives and use that context, 19 but we believe that the actual impact assessments are 20 a legitimate subject of a contention here.
21 JUDGE BOLLWERK: Okay, so let me go back 22 to my question. Are these SAMA contentions or not?
23 MS. CURRAN: No.
24 JUDGE BOLLWERK: No, okay, that's fine.
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55 Anything that the staff wants to say about that or do 1
you want to give me your answer first?
2 MS. WOODS: I can give you your answer 3
first, Your Honor.
4 JUDGE BOLLWERK: All right, go ahead.
5 MS. WOODS: The environmental project 6
manager has informed me that it's most likely late 7
August.
8 JUDGE BOLLWERK: Late August.
9 MS. WOODS: Yes, sir.
10 JUDGE BOLLWERK: Okay, thank you. All 11 right, anything that you want to say about Ms.
12 Curran's response on SAMA?
13 MS. WOODS: As I understand it, the 14 petitioners have indicated that the contentions are 15 not related to SAMAs.
16 JUDGE BOLLWERK: Correct.
17 MS. WOODS: I would agree with that.
18 JUDGE BOLLWERK: Okay, Mr. Lighty, 19 anything?
20 MR. LIGHTY: Duke would agree with that as 21 well.
22 JUDGE BOLLWERK: Okay, thank you. I 23 appreciate that. All right, let's go ahead then and 24 move to Contention 1, and I think Judge Miller has 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
56 question actually.
1 JUDGE MILLER: Yes, my question is to the 2
petitioners regarding a statement that you made in 3
your oral argument and then also in the petition 4
itself stating that in 2015, the flood height was 5
lowered from
- feet, 6
feet. I was wondering if you could point to where in 7
the associated document that you referenced that you 8
see that it says feet or around there?
9 MS. CURRAN: Sure, if you could give me a 10 minute, I just have to find it.
11 JUDGE MILLER: Absolutely.
12 (Pause.)
13 MS. CURRAN: Sorry, it's just going to 14 take a minute.
15 JUDGE MILLER: That's all right.
16 (Pause.)
17 MS. CURRAN: In our hearing request on 18 page 14, this is footnote 31, we cite a letter from 19 Scott Batson of Duke to the NRC that's dated March 6, 20 2015.
21 JUDGE MILLER: Okay, March 6?
22 MS. CURRAN: I'm sorry?
23 JUDGE MILLER: You said March 6, 2015?
24 MS. CURRAN: Yeah.
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57 JUDGE MILLER: Okay.
1 MS. CURRAN: And I can give you the ML 2
number. I think it's in Mr. Mitman's report too.
3 JUDGE MILLER: I think I --
4 MS. CURRAN: And maybe if you'd like, we 5
can explain, because it's not like it says that. You 6
kind of have to back it out.
7 JUDGE MILLER: No, it does say.
8 MS. CURRAN: It does say. Okay, it's in 9
a table and -
10 JUDGE MILLER: What table?
11 MS. CURRAN: I'll tell you what page it's 12 in that letter.
13 JUDGE MILLER: Yeah.
14 MS. CURRAN: Okay, it's the enclosure at 15 page seven.
16 JUDGE MILLER: Enclosure at page seven.
17 MS. CURRAN: Yeah.
18 JUDGE MILLER: Okay.
19 MS. CURRAN: And there's a table called 20 Table 4.
21 JUDGE MILLER: Okay.
22 MS. CURRAN: And if you look at the bottom 23 part of the table under, there's a subtitle maximum 24 water surfaces --
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58 JUDGE MILLER: Okay.
1 MS. CURRAN: -- and the second -- there's 2
two -- there's, I don't know, there's two big columns.
3 One is SSF. Well, they both say SSF, and under the 4
header 2D on the first column, it says elevation 5
feet, and on the, like if I go over, the 6
seventh column to the right is depth 7
JUDGE MILLER: Okay, and how does that 8
relate in your petition to where you quote on page 14 9
feet?
10 MS. CURRAN: We may have been mistaken in 11 saying because this is the correct number.
12 JUDGE MILLER: Okay, and my next question 13 is more so to the staff and the applicant. Again 14 staying with the 2015 letter and also adding in the 15 2011 safety evaluation, what exactly is the maximum 16 flood height that has been analyzed for Oconee based 17 on the Jocassee Dam failure?
18 MS. WOODS: I don't have the specific 19 value that is available, but as I understand it, the 20 2015 flood hazards reevaluation report was the 21 analysis that was done to recalculate and reexamine 22 the applicant's flood hazards protection level at the 23 facility.
24 JUDGE MILLER: Okay, could maybe one 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
59 explain, and again this is to the applicant or the NRC 1
staff, in the 2015 letter that I was just referring to 2
on page 11, middle of the page, it's referred to as 3
feet above site grade to be addressed with mitigation, 4
strategies for the Case 2, 100W model that is also 5
discussed in one of the other documents as referenced.
6 I've heard the flood wall height.
7 I've seen numbers that say feet, and so I just 8
would like for my own education and understanding, 9
what actually is this flood wall height and what is 10 the max flood height, and how does it even relate to 11 this feet or about feet that the petitioners 12 are talking about?
13 JUDGE BOLLWERK: And just for the record, 14 does anybody have the ADAMS accession number for that 15 document? I looked at footnote 31 and it's not in 16 there, unfortunately.
17 MS. CURRAN: For the 2015 letter?
18 JUDGE BOLLWERK: Yes, if I'm looking at --
19 MS. CURRAN: Yes.
20 JUDGE BOLLWERK: -- the right thing.
21 MS. CURRAN: I do have that. It's 22 ML16272A219.
23 JUDGE BOLLWERK: Okay, 1627A219?
24 MS. CURRAN: Yes.
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60 JUDGE BOLLWERK: Okay, oh two, 16272A19.
1 MS. CURRAN: A219.
2 JUDGE BOLLWERK: Okay, got it, okay. I'm 3
sorry to interrupt you.
4 JUDGE MILLER: No, no, it's fine.
5 MS. WOODS: The staff might be able to 6
elaborate a little bit. In terms of the safe shutdown 7
facility wall height, if that is what you're referring 8
to, in the previous analysis, it was at feet, and 9
I believe since then, there was an additional 10 feet that was added, but I could potentially consult with the staff to confirm if that would be 12 fine.
13 JUDGE MILLER: Thank you.
14 MS. CURRAN: And Judge Miller, it doesn't 15 have to be right now, but I just want to clarify 16 something about that.
17 JUDGE BOLLWERK: Sure, go ahead.
18 MS. CURRAN: I just wanted to clarify our 19 understanding that the feet and then the 20 feet wall, that's around the SSF. The 2011 safety evaluation was not restricted to just the SSF.
22 It was flood protection for the site.
23 So, the SSF is only part of the site, and 24 there are a number of safety components 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
61 outside the SSF. The SSF has equipment that's used to 1
respond to accidents, but it is not the safety-grade 2
equipment that is, you know, part of the adequate 3
protection, basic design requirement equipment.
4 JUDGE MILLER: Okay, and I'm going to ask 5
a question about the 2011 report in a second.
6 MS. CURRAN: Okay.
7 (Pause.)
8 JUDGE BOLLWERK: Anyone having any luck?
9 MS. CURRAN: Judge Miller, were you asking 10 what the flood height was from the 2011 safety 11 evaluation?
12 JUDGE MILLER: I'm asking what the flood 13 height is.
14 MS. CURRAN: Oh, okay.
15 JUDGE BOLLWERK: Currently.
16 JUDGE MILLER: Currently.
17 JUDGE BOLLWERK: Right.
18 JUDGE MILLER: And -- because we're seeing 19 different numbers in different documents potentially 20 21 MS. CURRAN: Okay.
22 JUDGE MILLER: -- depending on how you 23 read them, so I just want to be clear.
24 (Pause.)
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62 JUDGE BOLLWERK: So, let me raise the 1
question of whether this is something we should allow 2
you to supplement the record on. Is this -- I don't 3
necessarily want to extend this process, but on the 4
other hand, I want to make sure Judge Miller gets the 5
answer to her question, so any thoughts?
6 MS. WOODS: I could elaborate. We've 7
reached out to some of the safety staff with the NRC 8
to see if we might be able to get an answer, but if we 9
don't hear a response on it --
10 JUDGE BOLLWERK: Okay, anything the 11 applicant wants to say in that regard?
12 MR. LIGHTY: No, we're still looking for 13 that as well.
14 JUDGE BOLLWERK: Okay, would it make more 15 sense to go ahead and allow you to supplement the 16 record on this point? We would obviously have to 17 give, if we allow you all to supplement it, then we're 18 going to have to give Ms. Curran, obviously, an 19 opportunity to respond to whatever it is, although we 20 have to be clear on what the question is we're going 21 to ask though --
22 JUDGE MILLER: Yeah.
23 JUDGE BOLLWERK: -- which is that's 24 something you'll want to go and draft separately 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
63 put it out in writing as opposed to simply --
1 JUDGE MILLER: Yeah, that might be 2
helpful.
3 MS. CURRAN: I --
4 JUDGE BOLLWERK: Go ahead, Ms. Curran?
5 MS. CURRAN: I would just like to point 6
out that we have the document where that information 7
is provided, but it's been redacted. So, I mean, we 8
could point you to the page number where there's a 9
column for it, but it's -- we can't see it.
10 JUDGE BOLLWERK: Right, well, this goes to 11 the question of a document that we used previously 12 that was part of the public record and now no longer 13 is, I guess because of FERC concerns? I don't know.
14 MS. CURRAN: No, it's because we did a 15 Freedom of Information Act request to get consistency, 16 and we showed that information was publicly available 17 and we asked the NRC to release more information so 18 that we'd have consistency, and they responded by 19 redacting everything.
20 JUDGE BOLLWERK: Okay.
21 MS. CURRAN: So.
22 JUDGE ABREU: To me, it would be helpful 23 to have just a real clear setting of okay, how high --
24 you know, give us one reference point. What's 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
64 height of the dam versus the site? What is the flood 1
height that was analyzed?
2 We've already got the SSF height, but 3
that's all, you know, it's all part of that package.
4 Okay, what really are the numbers? What are the 5
existing structures versus what analysis was done, 6
especially with regards to the over-topping event 7
potential, just so we have a clear picture of the 8
events versus --
9 JUDGE BOLLWERK: Do we want to go ahead 10 and draft a question then or draft a statement of what 11 we want to know? Would that make more sense? I don't 12 want to send this out and then it not be clear exactly 13 what we're asking for, for obvious reasons. Let me 14 just turn to the staff. Are we going to run into 15 problems with a redacted document?
16 MS. WOODS: If it is currently redacted, 17 that is a potential concern that the information is, 18 in fact, redacted.
19 JUDGE BOLLWERK: Okay, well, maybe then I 20 think --
21 MS. CURRAN: Oh, wait, could we --
22 JUDGE BOLLWERK: Sure.
23 MS. CURRAN: Could we have just one 24 minute?
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65 JUDGE BOLLWERK: Certainly.
1 (Pause.)
2 MS. CURRAN: It may be that we have a 3
document where the information appears if you could 4
just give us a minute?
5 JUDGE BOLLWERK: Sure.
6 MS. WOODS: If I may consult, Your Honor?
7 Thank you.
8 (Pause.)
9 MS. CURRAN: All right, I gave you a 10 reference to page seven of the 2015 letter. It's my 11 understanding that that number that I gave you in 12 Table 4,
, is the flood height from the 2015 13 analysis.
14 JUDGE MILLER: Okay.
15 MS. CURRAN: So, that is a public document 16 right there.
17 MS. CURRAN: Does the applicant and staff 18 agree with that?
19 MS. WOODS: If I may, Your Honors, if the 20 information does turn out to be non-publicly 21 available, there is a separate option to be able to 22 have a non-public filing through that process, but we 23 would have to go through those procedures and 24 processes in order to be able to provide such 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 information as it is non-publicly available, and all 1
of the parties would need to, obviously, follow 2
whatever those procedures are to support such a non-3 public filing.
4 JUDGE BOLLWERK: So, you're saying we have 5
to put a protective order in place for this 6
information? Is that --
7 MS. WOODS: We would need to follow the 8
processes set, you know, in place to be able to 9
provide a non-public --
10 JUDGE BOLLWERK: Right.
11 MS. WOODS: -- filing on this.
12 JUDGE BOLLWERK: And so, in theory, if the 13 parties agree on a protective order and we put it in 14 place, and then Ms. Curran, if she filed an affidavit 15 of non-disclosure, would be able to see it. Is that 16 correct? Am I following the thought process here or 17 am I missing something?
18 MS. WOODS: I don't want to assume if 19 there's any sort of internal staff deliberation in 20 terms of access to the information, but, you know, 21 obviously whatever the non-public filing process is, 22 but again, I don't want to speculate in terms of, you 23 know, accessibility for redacted information as I 24 don't have the knowledge base to be able to opine on 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 that.
1 JUDGE BOLLWERK: Ms. Curran?
2 MS. CURRAN: I guess I just want a point 3
of clarification. As far as we can tell, in a public 4
document that is available to the board right now, we 5
have the flood height. So, I mean, we really don't 6
want to do this in some non-public setting. This is 7
really important --
8 JUDGE BOLLWERK: Me neither.
9 MS. CURRAN: -- information. Yeah, nobody 10 does, and this information from our perspective for 11 the public to understand what's going on here. So, we 12 have a public document that says the -- and now, you 13 know, it's become clear to me the flood height is 14 feet, and then, of course, it set the wall a little 15 higher, so that's
, but this is, 16 you know, this letter that we have that's publicly 17 available gives that information, and then, of course, 18 we have the information from the 2011 safety 19 evaluation, which is different.
20 JUDGE ABREU: So, just to make sure, so on 21 page 14 of the petition where it says feet, 22 you're correcting that to feet?
23 MS. CURRAN: One minute, please.
24 JUDGE ABREU: Okay.
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68 MS. CURRAN: Oh, here it is, okay.
1 JUDGE BOLLWERK: Consistent with the 2
letter.
3 MS. CURRAN: Well, the flood depth of 4
feet, I guess it should be
, but then there's a 5
different question of what is the height of the wall, 6
which is
, but at one point -- no 7
never mind, 8
JUDGE ABREU:
9 MS. CURRAN: --
, okay.
10 JUDGE ABREU: And so, Mr. Lighty, with 11 those numbers expressed that way, do you have any 12 opinion on those numbers?
13 MR. LIGHTY: Not at this time, Your Honor.
14 JUDGE ABREU: Okay.
15 MR. LIGHTY: I would really have to go 16 back and --
17 JUDGE ABREU: You'll reserve.
18 MR. LIGHTY: -- and untangle this, and 19 make sure we're not misleading --
20 JUDGE ABREU: Okay.
21 MR. LIGHTY: -- when we're talking off the 22 cuff here.
23 JUDGE MILLER: And Ms. Curran, then it is 24 your contention that the value in the 2011 report was 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 feet higher, feet, and then lowered to 1
approximately feet in 2015?
2 MS. CURRAN: Correct.
3 JUDGE MILLER: Okay, and could you explain 4
what you, as the petitioners, believe is the 5
environmental impact and what you think is different 6
with respect to what is in the draft SEIS, which is 7
small?
8 MS. CURRAN: Well, the exact statement in 9
the draft EIS that we're contesting is the statement 10 that after the post-Fukushima review, the NRC decided 11 that no further regulatory measures were needed for 12 adequate protection. And we are contesting that 13 because we are aware that the safety evaluation from 14 2011 said that further measures were needed to protect 15 against a flood level on the order of 16 feet. So, that is still outstanding, and that's a 17 safety evaluation related to adequate protection.
18 So, we don't think it's correct for the 19 draft EIS to say adequate protection is satisfied 20 effectively because our post-Fukushima review did not 21 reveal any more measures that were needed for adequate 22 protection. In fact, from our review of the post-23 Fukushima review, the NRC decided no further measures 24 were needed for effectiveness or reasonableness, 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 different words than adequate protection.
1 JUDGE MILLER: I guess what I'm asking is 2
how is this not what the applicant is contending, 3
which is a current licensing basis? How is this 4
impacting and changing the impact to the environment?
5 MS. CURRAN: Because it leaves the 6
facility vulnerable to a flood from which the NRC 7
thought the plant should be protected as a matter of 8
adequate protection.
9 And as I was saying earlier, when the NRC 10 uses the words adequate protection in the context of 11 a NEPA analysis, they are saying this means there are 12 no significant impacts, so that we are really 13 concerned that those words, adequate protection, were 14 used without a foundation to assure the public that 15 flooding would not have adequate protection, would not 16 threaten adequate protection, would not have 17 significant impacts, and that that was the result of 18 the post-Fukushima review. We don't think that's 19 correct. It's not supported by the record.
20 JUDGE BOLLWERK: So, do you need more 21 information on your numbers question?
22 JUDGE MILLER: No, if everyone is in 23 agreement that it is feet and then the flood wall 24 height is
, then that works 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
71 me. I'm not sure where in the 2011 report you see 1
that there were additional things that needed to be 2
done according to the NRC, mitigating strategies, and 3
what those were.
4 MS. CURRAN: Okay.
5 JUDGE BOLLWERK: I should say we're going 6
to, when we, when this discussion is over, we're going 7
to turn to you all if you have any comments on what we 8
just heard.
9 MS. CURRAN: All right.
10 JUDGE BOLLWERK: So, I haven't forgotten, 11 and by you all, I mean the staff and the applicant.
12 MS. CURRAN: The 2011 safety evaluation 13 does not identify mitigation strategies. It just says 14 that Duke has to protect the plant to a level of 15 feet, and that means the entire plant, not just the SSF, and I can, you know, I can tell you on 17 what page we find that information.
18 JUDGE MILLER: Yes, please.
19 MS. CURRAN: Okay, so on page two of the 20 safety evaluation, under the header purpose, it's 21 Section 2.0. Okay, it says that the ground elevation 22 at the base of the SSF is 796.0 feet, and on page 12, 23 it says that the water levels at the SSF 2D water 24 levels are feet MSL. So, if you subtract 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 from
, you get 1
JUDGE MILLER: Okay, can you point where 2
it says that that has to be protected, that that 3
amount of water has to be protected against?
4 JUDGE BOLLWERK: Well, let's try to be 5
careful about reading from the report, just a page 6
number and a paragraph number.
7 JUDGE MILLER: Yeah, page number and 8
paragraph.
9 JUDGE BOLLWERK: This is redacted and I 10 don't know if the staff is kind of trying to pull 11 their hair out or if that's --
12 MS. CURRAN: I'm not looking at redacted 13 information.
14 JUDGE BOLLWERK: Oh, you're not, okay, I'm 15 sorry.
16 MS. CURRAN: No.
17 JUDGE BOLLWERK: Am I looking at the wrong 18 thing?
19 MS. CURRAN: Oh, well, okay --
20 JUDGE BOLLWERK: Okay, got it.
21 MS. CURRAN: -- so the whole -- it's true 22 that the whole report has been removed, but it has 23 been in the record of this proceeding.
24 JUDGE BOLLWERK: Okay.
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73 MS. CURRAN: It is --
1 JUDGE MILLER: Yeah.
2 MS. CURRAN: -- a public document in this 3
proceeding.
4 JUDGE BOLLWERK: Okay.
5 JUDGE MILLER: Okay.
6 MS. CURRAN: I'm going to answer your 7
question, Judge Miller.
8 JUDGE MILLER: Yeah, okay.
9 MS. CURRAN: Hold on.
10 JUDGE BOLLWERK: I just don't want to have 11 to redact this transcript, I really don't.
12 MS. CURRAN: You really do have to read 13 this document in its totality, but there is a sentence 14 here in the same paragraph under Section 2.0 that says 15 this case two scenario will be the new flooding basis 16 for this site, and then, you know, if you go back to 17 what is the case two scenario -- you have to deduce 18 this, but it's in here.
19 And we are also relying on Mr. Mitman, who 20 had firsthand experience of this document, and knows 21 what it means and says what it means, and I don't 22 think we've gotten any opposition to his 23 interpretation that this is what it means.
24 JUDGE BOLLWERK: Okay, anything else 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
74 want to --
1 JUDGE MILLER: Okay, we'll just --
2 JUDGE BOLLWERK: Okay, let me turn then 3
to, oops, to the staff and the applicant just to see.
4 We'll start with the staff. Do you have any comments 5
about the dialogue between Judge Miller and Ms.
6 Curran?
7 MS. WOODS: One thing I would like to make 8
clear is that there is no adequate protection issue 9
regarding flood hazards protections at the Oconee 10 site. It is subject in protection regarding -- flood 11 hazards is subject to the NRC staff's extensive 12 ongoing oversight, as can be seen by the documents 13 even petitioner's expert references that there has 14 been, and has been subject of extensive ongoing 15 discussion and evaluation between, and assessment 16 between Duke Energy and the NRC. So, it is subject to 17 an ongoing oversight, which again furthers the NRC 18 staff's position that this is going to a current 19 licensing basis issue and goes to a current operating 20 issue.
21 The fact that we're here discussing 22 particularities regarding how the site is, in fact, 23 protected against flood hazards further demonstrates 24 that this is not within the scope of the limited 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 provisions of a license renewal review. And to the 1
extent there is any sort of record that is being read 2
into that was part of a previous record, you know, 3
that has not been submitted here. Thank you.
4 JUDGE BOLLWERK: All right, Mr. Lighty?
5 MR. LIGHTY: Thank you, Your Honors. I 6
think it may be helpful to take a step back for a 7
moment and reframe the context that we're talking 8
about here. First of all, this Contention 1 is a 9
challenge to the discussion of design basis accidents.
10 A dam breach scenario is a beyond design 11 basis event and it's not evaluated in the design basis 12 accidents section of the draft SEIS. It's not 13 intended to be evaluated there. Beyond design basis 14 events are separately evaluated in the severe 15 accidents discussion, which Contention 1 doesn't 16 challenge at all.
17 The second point I would make is that 18 since we are talking about design basis accidents, the 19 design basis for Oconee has not changed. It did not 20 change as a result of the post-Fukushima reviews. The 21 design basis is the same as it was at the outset of 22 initial license.
23 And so, you know, again, to the extent 24 that we're talking about different values 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
76 different numbers, nothing has changed with regard to 1
the design basis. And to the extent we're looking at 2
beyond design basis events and severe accident space, 3
that's not the part of the DSEIS they're challenging 4
here, so I think that's important to keep in mind.
5 I would also note that when Ms. Curran was 6
speaking initially and said that the NRC set the flood 7
height at feet, and that it later reduced the 8
flood height to a certain level, I think that is 9
inartful language because what she's essentially 10 saying is that the NRC established this as a 11 regulatory obligation, and that's simply incorrect as 12 a matter of law.
13 As noted in our answer brief at page 29, 14 this comes from a safety evaluation and certain 15 documents, not an order, not a regulation, not 16 something that an agency uses to impose a requirement.
17 So, the effect of the 2011 safety evaluation was not 18 to impose or set anything. It was a document that the 19 NRC could have relied upon if it chose to do so, but 20 it did not.
21 So, in fact, the current requirements are 22 imposed because they are something that the licensee 23 committed to in docketed correspondence to the NRC, 24 thereby making it part of the current licensing basis 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 for the plant. That's the sort of breadcrumb 1
mechanism through which this becomes a requirement.
2 The flood height was never a requirement. It was 3
never imposed and I think that's important here.
4 But I think, to get back to more 5
fundamental issues here, what petitioners are really 6
contesting is the use of the word adequate protection 7
and design basis review as it's presented in the 8
background discussion in the design basis accidents 9
section of the DSEIS. And their contention is that, 10 well, the NRC never repudiated that 2011 safety 11 evaluation, and therefore it should have imposed, by 12 order apparently or something, a flood height.
13 But that's not -- that doesn't accurately 14 portray the regulatory history, because as noted in 15 the LBP-22-1 decision at page 75, you know, the board 16 recognized that the agency found that the subsequent, 17 the 2015
- analysis, was a,
- quote, acceptable 18 alternative flood hazards analysis, end quote.
19 So, the agency said dear licensee, you can 20 pick either one of these analyses and it will satisfy 21 your regulatory obligations for flood protection, and 22 the licensee chose the 2015 analysis with the more 23 modern techniques for analysis and put that in 24 docketed correspondence, and that regulatory 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 commitment is the official obligation to which the 1
licensee is required to comply.
2 That's an acceptable alternative. That 3
means that when the NRC gave two options and the 4
licensee chose one, the option they didn't choose 5
doesn't impose some obligation, which is the essence 6
of Contention 1 here by their selective reading of 7
that regulatory history. They simply haven't raised 8
a genuine dispute here on a material issue of law or 9
fact, and I think that's really the crux of Contention 10 1.
11 JUDGE BOLLWERK: All right --
12 MS. CURRAN: Can I --
13 JUDGE BOLLWERK: This actually started out 14 with questions to the staff, but then it kind of 15 morphed into a discussion with Ms. Curran, so we'll 16 let Ms. Curran finish.
17 MS. CURRAN: Okay, thank you. I just want 18 to respond to a couple of points. The NRC's ongoing 19 oversight is argued to take care of this issue. You 20 know, adequate protection is always being addressed by 21 the NRC.
22 The point is that this is, under NEPA, 23 there's a moment where the agency makes a decision.
24 Are we going to let this plant operate another 20 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 years? And NEPA requires that all of the relevant 1
information that's available to the agency has to be 2
brought to bear. What do we know now? We got to make 3
a decision about the next 20 years.
4 So, it isn't -- it doesn't satisfy NEPA to 5
say we've got ongoing oversight, and especially when 6
the NRC is using the adequate protection findings and 7
the idea that an adequate protection review was done 8
to address the NEPA issues. You've got to ask well, 9
okay, what did you do?
10 You're telling us that in this moment, we 11 are relying on adequate protection findings to say you 12 don't need to worry about the significance of these 13 impacts. So, then it's not enough to just say well, 14 we're taking care of this in our regular oversight 15 because that's not how NEPA works.
16 And we should be able to document what 17 that review was, and we can. There's all of this 18 correspondence. It's all in the ADAMS system. We can 19 go back and look and see what happened.
20 Then the issue of that the adequate 21 protection findings apply to design basis accidents, 22 that's true, but if an adequate protection finding 23 doesn't really resolve an accident risk, then it's 24 really kind of immaterial whether the accident is 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
80 design basis accident or a beyond design basis 1
accident. Those categories don't, they don't really 2
apply.
3 You've got an accident that you haven't 4
analyzed under -- you claim to have analyzed it under 5
your Atomic Energy Act regime, NRC, but you didn't, so 6
then we've got an accident scenario that poses a 7
problem, and that's what the petitioners are doing, or 8
what we're raising, and it doesn't really matter --
9 deciding which box it goes in doesn't resolve the 10 question. The problem was created by the fact that 11 the adequate protection analysis didn't resolve the 12 accident risk in question.
13 I want to talk for a minute about setting 14 a flood height risk to feet, that that's 15 not a regulatory requirement, and that is something 16 that I think the licensing board went into some detail 17 in in your decision. You went through what was the 18 history?
19 There was a confirmatory action letter in 20 2010, and Duke came back and said we're going to do X, 21 Y, and Z to resolve this, and I think they said they 22 were, I mean, I'm assuming they said they were going 23 to build some kind of wall to protect the facility to 24 a height of feet.
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81 And if Duke said that, we're going to do 1
these things in response to your confirmatory action 2
letter, it's not unusual for the NRC and the licensee 3
to agree okay, you're doing what we asked you to do.
4 We don't have to issue an order against you because 5
we're in agreement you're going to do these things.
6 And then things got a little bit confusing 7
and uncertain when the Fukushima accident happened, 8
and then there was correspondence that said well, 9
let's just see what happens after the Fukushima review 10 is done, and then we can go back and resolve these 11 issues that we had brought up with you as an adequate 12 protection issue in the, I think it started in 2008, 13 and then there was a 2010 letter, and a 2011 safety 14 evaluation.
15 But our point is that after the Fukushima 16 accident and the impacts or the implications for 17 Oconee were reviewed, the NRC did not go back to the 18 2011 safety evaluation and say okay, we got this 19 safety evaluation over here. We told you we think you 20 need to protect to feet. You said that 21 was okay with you. Now we've got this different 22 analysis that says is okay.
23 We can't find any place where the NRC 24 reconciles those things and says okay, well, we've 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 reviewed the flood risk post-Fukushima and we think 1
feet provides adequate protection, so, and 2
nothing to deal with the previous analysis that says 3
you need
. We can't find that.
4 We can't find the words adequate 5
protection in relation to
. We can't find 6
any reference to the 2011 finding that 7
feet was necessary for adequate protection. It just 8
kind of disappeared.
9 But what we're saying is the NRC, it's not 10 okay to abandon a safety evaluation and substitute 11 something else without addressing the finding that was 12 made in that safety evaluation and explaining how it 13 may have changed. It's not -- once the agency invokes 14 the statutory standard of adequate protection, then if 15 that changes, it has to be addressed, and the fact 16 that there was no order issued doesn't really matter 17 because Duke apparently was prepared to do what the 18 NRC asked them to do.
19 And again, you know, I think Mr. Lighty 20 said well, Duke had a choice. Should we do the 21 feet or should we do the feet? We could 22 pick either one. But the Atomic Energy Act's safety 23 standard is always going to trump the -- I'm sorry, 24 I'm not --
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83 The safety standard in the Atomic Energy 1
Act is always going to trump something that's lesser 2
or different. If the words adequate protection are 3
used, I don't -- it's not acceptable to substitute 4
reasonable or effective without addressing that.
5 And again, we are not raising this 6
contention in safety space. We're raising it in NEPA 7
space where the NRC has used that adequate protection 8
language in order to justify a finding of no 9
significant impact.
10 JUDGE BOLLWERK: Okay, let me move this 11 forward a little bit with a question that I have 12 actually. Do you have any other questions on this?
13 JUDGE ABREU: I'll wait. Go ahead.
14 JUDGE BOLLWERK: Go ahead. Go ahead. If 15 you have something --
16 JUDGE ABREU: No, I was just going to see 17 if the applicant or the staff wanted to shed any light 18 on what Ms. Curran just said about, you know, the 19 shift and the mystery of it from their view.
20 JUDGE BOLLWERK: Go ahead, staff first.
21 MS. WOODS: Okay, I think as discussed 22 previously, there is an extensive regulatory record 23 and history that I believe the petitioners do not 24 fully consider in terms of the information even 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
84 discussed in the previous board, as noted in the 1
staff's responsive pleading regarding the events 2
following Fukushima and the supersession of the 3
analyses, and also noting that, you know, as noted in 4
the 2015 flood hazards assessment or reevaluation 5
report, you know, did conduct a new analyses.
6 And one thing if I could take just a step 7
back, there's been, you know, some discussion on 8
previous documentation, and as noted, although the 9
Commission did
- dismiss, you
- know, the prior 10 admissibility proceeding from 2011, the Commission did 11 direct the staff to provide petitioners with the new 12 opportunity to challenge this environmental review, so 13 petitioners must support their contentions here in 14 this proceeding and not simply rely on previous 15 arguments or submissions that were made.
16 And so, to the extent that the information 17 is redacted, it should not be made public in this 18 argument, and we will need to follow, you know, the 19 appropriate procedures for sharing that information 20 publicly, which may require a non-disclosure agreement 21 and protective order. Thank you.
22 JUDGE BOLLWERK: Okay.
23 MR. LIGHTY: Thank you, Your Honors. Just 24 very briefly, you know, I think to boil this down, 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
85 petitioners are contesting the use of the words 1
adequate protection in the DSEIS to summarize the 2
outcome of the post-Fukushima reviews. And in their 3
view, the closeout letter doesn't use the words 4
adequate protection, therefore the NRC, you know, 5
didn't make an adequate protection finding, and that's 6
problematic in their view.
7 You know, I would direct Your Honors to 8
the backfitting regulation in Part 50, Section 9
50.109(a)(5), and it says the Commission shall always 10 require the backfitting of a facility if it determines 11 that such regulatory action is necessary to ensure 12 that the facility provides adequate protection to the 13 health and safety of the public and is in accord with 14 the common defense and security.
15 The core argument that petitioners seem to 16 be advancing here is that the Commission has simply 17 abandoned that obligation all together and that's why 18 the DSEIS is inadequate. That's simply not a 19 supportable assertion.
20 There's nothing in the record to 21 demonstrate that the Commission simply decided it 22 didn't need to comply with the Atomic Energy Act, and 23 didn't need to comply with this requirement and its 24 own regulations. That's the core of their 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
86 here and it just doesn't hold water.
1 JUDGE BOLLWERK: All right, let me make 2
one point to the staff, and then I'm going to ask Ms.
3 Curran a question because I think it goes to the point 4
you were making. You should look at the transcript 5
when it's done. If you see anything that causes you 6
concern about what's in there, then get back to us and 7
let us know what your proposal would be to deal with 8
that, all right?
9 MS. WOODS: Thank you, Your Honor.
10 JUDGE BOLLWERK: We would appreciate that, 11 and maybe, I don't know when the transcript -- it 12 probably will be by the end of this week. Hopefully 13 it wouldn't take you more than a couple days to get 14 back to us if that's possible, so.
15 MS. WOODS: Yes, sir.
16 JUDGE BOLLWERK: I'm not going to set a 17 deadline, but please make it prompt. I would 18 appreciate it, okay?
19 MS. WOODS: Yes, sir.
20 JUDGE BOLLWERK: So, let me go to Ms.
21 Curran with this question, and I think it relates 22 somewhat to what Mr. Lighty was raising, and I'll 23 apologize up front for this question because it's got 24 a lot of moving parts and some citations in it, but 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 for the record, I wanted to make it clear, or maybe I 1
made it less clear, but anyway, let's try it and see 2
where we go, and I'm glad to repeat any part of it you 3
want.
4 In its answer on pages 17 and 21, the 5
applicant cites and discusses a September 29, 2015 6
memorandum from the Director of the Office of Nuclear 7
Reactor Regulation. That's ADAMS accession number 8
9 In that memorandum, the Director discussed 10 the NRC's March 12, 2012 10 CFR Section 50.54(f) 11 letter, and that letter is ADAMS accession number 12 ML12053A340 issued in the wake of the March 2011 13 Fukushima Daiichi earthquake and tsunami-induced 14 accident, requesting that each power reactor licensee 15 reevaluate flood-causing mechanisms using present-day 16 guidance and methods.
17 And as part of that letter, it included an 18 explanation of how the agency would incorporate, via 19 the backfit process, any subsequent changes to a 20 facility's design basis that might be required as a 21 result of that Fukushima-related assessment.
22 According to Duke, consistent with this 23 memorandum, the NRC staff's November 17, 2020 letter 24 closing out the Section 50.54(f) evaluation process 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 for Oconee, and that letter is ADAMS accession number 1
ML20304A369, excuse me, constituted a
staff 2
determination confirming the viability of Oconee's 3
existing design basis, and concluded that no further 4
regulatory actions were needed regarding flooding.
5 In its reply, the petitioner didn't really 6
directly address the relevance of this document, and 7
I'd like to know what response, if any, do you have 8
regarding this memorandum and applicant's assertion 9
that it confirms that any issues associated with the 10 staff's 2010 confirmatory action letter or CAL, or its 11 2011 safety evaluation report prepared as part of the 12 2010, excuse me, CAL process, were properly resolved 13 in the context of the staff's 2020 closeout letter?
14 So, basically, the NRR memorandum seemed 15 to indicate that if there was something to be done, 16 that the agency would do a backfit analysis, and it 17 didn't do it, and therefore, that essentially, when 18 they didn't do that, closed out the whole process, and 19 you really didn't address that in a memorandum and I 20 want to give you an opportunity to do that.
21 MS. CURRAN: And would you just remind me 22 of what is the date of the memorandum?
23 JUDGE BOLLWERK: Sure. It's -- let me get 24 the right date -- March 29th, 2015. It was discussed 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 again on several pages, but starting on page 17 of the 1
applicant's answer. Did I misrepresent anything you 2
said, Mr. Lighty? I want to make sure of that.
3 MR. LIGHTY: I believe the ML12053A340 4
letter is dated March 12th, 2012. And there was a 5
subsequent memorandum, ML15127A401, that was dated 6
September 29th, 2015.
7 JUDGE BOLLWERK: Okay. Which one have I 8
gotten incorrect then?
9 MR. LIGHTY: I think maybe the first memo, 10 the date, if I heard you correctly.
11 JUDGE BOLLWERK: Okay. Let me look up --
12 hold on one second. Let me pull your pleading here.
13 All right. So the 5054F letter is March 12th, 2012.
14 MR. LIGHTY: Yes.
15 JUDGE BOLLWERK: Correct? Okay. Then the 16 memo that I was talking about is decided on the middle 17 of page 18 of your answer. It says on September 29, 18 2015, the director issued a memorandum explaining the 19 treatment post-Fukushima flooding hazard evaluations.
20 MR. LIGHTY: Yes, that's correct.
21 JUDGE BOLLWERK: Okay. Then what did I do 22 wrong after that?
23 MR. LIGHTY: No, I believe you're correct, 24 Your Honor.
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90 JUDGE BOLLWERK: Okay. All right. And so 1
that, Ms. Curran, is what I'm referring to.
2 MS. CURRAN: So the document you're 3
referring to is September 29, 2015?
4 JUDGE BOLLWERK: Correct.
5 MS. CURRAN: Okay.
6 JUDGE BOLLWERK: And it seems again to be 7
a discussion laying out the staff's approach to making 8
changes -- design basis changes if necessary based on 9
the Fukushima evaluations, if I'm understanding what 10 the document says.
11 (Pause.)
12 MS. CURRAN: Okay. All right. Our 13 reading of this memo is it is a memo from the NRR to 14 all the regional directors. So this was a high level 15 instruction to NRC regional administrators across the 16 United States. It was not -- it's not about Oconee.
17 It's a high level instruction and it says 18 it's to provide information in response to questions 19 on the treatment of post-Fukushima seismic and 20 flooding hazard reevaluations within operating nuclear 21 plants licensing basis. So this kind of general high 22 level instruction, it doesn't seem to us to get at the 23 question of what should be done in particular relation 24 to the Oconee plant. It says, the reevaluations 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 called by -- I'm on the first page and the second 1
paragraph.
2 The reevaluations called for by the 10 CFR 3
50.54(f) letter do not revise the design basis of the 4
plant, even if such hazard information is estimated to 5
exceed the plant's current design basis. So I think 6
they're saying we're not prescribing anything in 7
particular with our 50.54(f) letter. And these 8
reevaluations were still underway at the time this 9
memo was written.
10 So what we see in this process is that 11 originally there was a 50.54(f) letter that went out 12 in 2012. And it was quite clear. We're worried that 13 when we reevaluate the flooding and seismic risk to 14 reactors because we're going to update that in light 15 of the Fukushima accident, we may have to revise the 16 licensing basis for these plants.
17 And we might have to do backfits. Then we 18 have this memo in September of 2015. So that's a 19 little over three years later saying, well, we did 20 mean to tell you that you're going to have to do any 21 backfits here.
22 We're just telling you we asked for more 23 information about this. And keep doing your reviews.
24 And then as we get more and more granular in relation 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
92 to Oconee in particular, we see that the review was 1
done and that the general direction that was -- that 2
the agency set off on in March 2012 wasn't necessarily 3
followed with respect to Oconee.
4 And just I want to clarify that this is 5
not coming from the commissioners. Mr. Lighty was 6
using the phrase, the commission, the commission, what 7
they intended. They never would've intended something 8
like this.
9 We think that something happened in the 10 course of the staff's review. The staff which is not 11 the commissioners went off the track, did not continue 12
-- did not follow the direction of the general intent 13 of the March 2012 50.54 letter of actually addressing 14 adequate protection issues. Sometimes else happened.
15 And the words just aren't there of 16 adequate protection. They're not there. And we don't 17 think that, as I said just a few minutes ago, you 18 can't read anything into the fact that no backfits 19 were imposed because the NRC staff was basically 20 strained from that old regulatory framework here.
21 They were coming up with something new.
22 And they said, we eliminated some conservatism that we 23 used to have. So we're not in adequate protection 24 country anymore.
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93 We're somewhere else. And what we're 1
saying is that in the draft environmental impact 2
statement, the NRC staff is not representing the 3
process correctly when they characterize the post-4 Fukushima review as reaching an adequate protection 5
conclusion. It was something else.
6 JUDGE BOLLWERK: All right. Let me turn 7
to the staff first and then the applicant, any kind of 8
response you want to provide.
9 MS. WOODS: Thank you, Your Honor. As 10 discussed even in the documentation the petitioners 11 cite to, I believe it's the 2018 assessment, that 12 provides another response. And there is following 13 actions that the agency took and engaged with the 14 applicant on following that initial 50.54(f) letter 15 which was subsequently as noted in the 2020 letter 16 closed out. And so there is a great deal of 17 regulatory history that is also involved with that.
18 And again, I would just reiterate the staff's position 19 that there is not a adequate protection issue 20 regarding code hazards at the Oconee site.
21 JUDGE BOLLWERK: All right. Mr. Lighty?
22 MR. LIGHTY: Thank you, Your Honor. I 23 would just respond to Ms. Curran's observations. The 24 petitioners think that the staff went off track 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 somewhere in the post-Fukushima review.
1 If that's true, if that is their concern, 2
there is a venue to take that concern. And it's 3
through the citizen petition process in 10 CFR Section 4
2.206. But here for the purposes of this contention, 5
there is no dispute that there was no backfit 6
initiated during that process.
7 There was no dispute that there has been 8
no change to the Oconee design basis flood hazard.
9 There is no dispute that Oconee is still subject to 10 the requirements in Part 50 to maintain an acceptable 11 design basis. And there is no dispute that Oconee 12 currently is in compliance with that original design 13 basis. None of those things are disputed here. And 14 so there is no genuine dispute on a material issue of 15 law or fact regarding the design basis accident 16 analysis in the DEIS.
17 JUDGE BOLLWERK: All right. Ms. Curran.
18 MS. CURRAN: Well, the design -- as we 19 said at the very beginning today, the design basis for 20 the Oconee reactor doesn't anticipate flooding, 21 period. It was considered not credible. And what 22 we're talking about is an evolution of understanding 23 by the NRC over time.
24 Oh, what a mistake. We need to do 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 something here. We need to account for flooding at 1
the site. We're talking about this plant operated for 2
40 years. They got a 20 year renewal, and now they 3
want another one to go to 80 years when they have a 4
design basis that does not consider flooding from two 5
big dams upstream.
6 And we have a history of the NRC over time 7
saying more and more of we need to deal with this. So 8
up until -- it's ironic to us. Up until the Fukushima 9
accident, the NRC was saying, we need to protect this 10 plant at a level of feet.
11 And then after that, there is an analysis.
12 It's, like, we're going to use modern methods. I 13 think that phrase was used here today. We're going to 14 use modern methods to look at what is the flooding 15 risk for Oconee.
16 And all of a sudden, the flood height goes 17 down feet. How can that be when we had the agency 18 over time getting more and more concerned about 19 flooding and then suddenly it goes down to feet?
20 And we can't find a single document that says 21 feet is okay for adequate protection.
22 And the NRC uses the words adequate 23 protection in the draft EIS. They can't have it both 24 ways. Maybe if they said, well, NEPA land 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
96 different than adequate protection land.
1 We're giving you something that's 2
reasonable. We're giving you something that's 3
effective. And we're going to tell you that's good 4
enough for you.
5 But they use those magic words in the 6
Atomic Energy Act. We've got adequate protection 7
here. We know from Union of Concerned Scientists 8
versus NRC, that standard means this plant is meeting 9
minimum requirements the NRC considers is necessary 10 for public health and safety. And if it's different, 11 the draft EIS needs to say that and not use those 12 magic words.
13 JUDGE BOLLWERK: All right. I have a 14 couple more questions. Did you all have anything? I 15 mean, I'll try to be brief then. Obviously, the 16 petitioners have placed great emphasis on the lack of 17 an explicit adequate protection finding as part of the 18 NRC staff's various post-2011 analyses of flood risk 19 for the Oconee facility. If, however, such language 20 had been incorporated into one of those subsequent 21 staff analyses with the rest of the technical basis 22 for the analyses remaining the same, would the 23 petitioners have submitted contention 1?
24 MS. CURRAN: We were just talking about 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 that earlier. What if the NRC had said in a safety 1
evaluation we have considered the flooding risk to the 2
Oconee reactors in light of the most recent 3
information we have. And we have decided that 4
feet is an adequately conservative flood height for 5
adequate protection of public health and safety. I 6
don't think we have a case.
7 They could put that in the EIS and say 8
we've done an adequate protection analysis.
feet 9
is okay. But they didn't.
10 JUDGE BOLLWERK: That wasn't actually my 11
-- specifically my question. If the technical 12 analysis that currently exists had been in place and 13 were in place but the words adequate protection had 14 been used to describe what the staff was doing, would 15 you have filed this contention?
16 MS. CURRAN: Oh, I thought that's what I 17 was answering.
18 JUDGE BOLLWERK: Well, I don't think so.
19 You said if there was other analyses, I think what I 20 heard --
21 MS. CURRAN: Well, if this analysis, the 22 post-Fukushima analysis, the closeout one --
23 JUDGE BOLLWERK: Right.
24 MS. CURRAN: -- is that we now thing 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
98 letter had said -- it used the words adequate 1
protection in relation to a foot flood height, we 2
would not have had a basis for contention 1.
3 JUDGE BOLLWERK: So is this a legal 4
contention?
5 MS. CURRAN: Pretty much. But it has a 6
factual component.
7 JUDGE BOLLWERK:
- Well, most legal 8
contentions have some factual component to them, but 9
10 MS. CURRAN: Yes, but it is legal in the 11 sense that in this environmental impact statement, the 12 NRC used words with profound legal significance under 13 the Atomic Energy Act to represent that environmental 14 impacts were small. And there's case law that 15 basically says that's okay. For design basis 16 accidents, if you can say adequate protection is 17 provided here, we don't have significant impacts.
18 JUDGE BOLLWERK: All right. Okay. I'll 19 turn to the staff first and then the applicant.
20 MS. WOODS: Thank you, Your Honor. As the 21 commissioners just said, it sounds like there's not an 22 issue regarding the actual technical basis but 23 regarding the arguments. It's turning rather on a --
24 I don't like this term, but like a semantic point in 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 terms of that. In a plain reading of the 50.54 1
regulation, it indicates that the information is there 2
to enable the Commission to determine whether or not 3
the licensee - that the license shall be modified, 4
suspended, or revoked. And so the agency in its 5
determination on the 50.54(f) letters indicated that 6
there were no other regulatory actions that were 7
needed at that time regarding that.
8 JUDGE BOLLWERK: All right. Mr. Lighty?
9 MR. LIGHTY: As I understand what Ms.
10 Curran just said, it's the absence of the words 11 adequate protection from the closeout letter that is 12 the alleged genuine dispute here. But petitioners 13 allege that dispute exists by looking only at the four 14 corners of that single document in a vacuum by itself.
15 And that's not enough to demonstrate a genuine dispute 16 here because there's an entire regulatory history, 17 including the guidance memos that we discussed earlier 18 that provide the proper context that explain what the 19 staff did that are implicitly incorporated in that 20 closeout letter to give it meaning.
21 And what those guidance documents say is 22 we're going to review the design basis. We're going 23 to look at adequate protection. And unless we 24 initiate a backfit to change the design basis, quote, 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
100 otherwise, the reevaluated flooding levels are beyond 1
design basis events, period.
2 In other words, the absence of the backfit 3
itself demonstrates the determination that there is no 4
adequate protection issue. And because the petition 5
simply ignore the broader context don't read the 6
closeout letter along with the extensive history that 7
informs its appropriate reading and construction.
8 They haven't met their burden to demonstrate a genuine 9
material dispute.
10 JUDGE BOLLWERK:
Is this a
legal 11 contention?
12 MR. LIGHTY: I'm reluctant to characterize 13 it into a single bin because the contention itself is 14 a bit of a hodge podge of claims. But I think there 15 could be a mixed element to it.
16 JUDGE BOLLWERK: Anything the staff wants 17 to say about whether this is a legal contention?
18 MS. WOODS: No, Your Honor. Thank you.
19 JUDGE BOLLWERK: All right. Ms. Curran?
20 MS. CURRAN: I just want to say that we've 21 read many four corner pages in this long history. And 22 we've looked for this adequate protection, finding any 23 specific relation to Oconee. We're looking at the --
24 words matter.
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101 And in the NRC's regulatory system, the 1
agency goes out of its way to leave a paper trail when 2
they do reviews and make findings. It's important.
3 It's reasonable to rely on the words on the paper.
4 JUDGE BOLLWERK: All right. Thank you.
5 Just sort of a question for the staff. You've had --
6 I guess there was -- you asserted that the previous 7
Oconee licensing board's determination regarding the 8
significance of the adequate protection language in 9
the staff's 2020 -- 2011, excuse me, safety evaluation 10 should govern in this proceeding.
11 But that determination was made in the 12 context of the arguably higher standards in the 10 CFR 13 Section 2.335 that govern a waiver petition. And I 14 think Ms. Curran indicated that it was more discretion 15 for the board making such determination.
16 Specifically, it's whether the waiver is necessary to 17 reach a significant safety or environmental issue.
18 How much weight can we give that decision in this 19 instance when we're making a determination based on 20 different set of standards, that is the contention 21 admissibility standards of Section 2.309(f)(1)?
22 MS. WOODS: Thank you for the question, 23 Your Honor. In terms of the NRC staff's arguments, 24 the board in a previous finding as we noted 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 introduction that we were advocating that the board 1
should consider the factual record that the board 2
established within, I believe, it was Section C of LVP 3
22-1 in terms of the regulatory history and factual 4
background that the board went through and developed 5
as a result of that. We did note in our filing as 6
well that the previous board decision was made under 7
a 2.335 waiver determination.
8 But an important factor that was there was 9
that the information that petitioners proffered during 10 that time went to an adequate protection issue. And 11 in that situation, the previous board found that the 12 petitioners had not met the fourth Millstone factor in 13 that there was not a sufficient demonstration to 14 demonstrate there was an unresolved safety or 15 environmental issue that merited a waiver in that 16 particular issue. So again, we were referencing it as 17 the factual background and historical background that 18 this proposed contention should also be reviewed 19 against in terms of the regulatory history that was 20 provided by the board.
21 JUDGE BOLLWERK: All right. Thank you.
22 Mr. Lighty?
23 MR. LIGHTY: We agree with everything that 24 the staff counsel just said. I would just add 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
103 couple of things. First of all, I don't think that 1
the analysis changes depending on the legal standard 2
that you are looking at, whether it's for a waiver or 3
a contention of admissibility because at its core, 4
what the previous licensing board found was that there 5
wasn't adequate support.
6 There wasn't a factual basis for the 7
claims that were being proffered. And that's distinct 8
from applying that factual conclusion to the 9
applicable legal standard. For example, if you look 10 at the prior decision at page 86, what the board is 11 concluding here is that the petitioner failed to 12 engage with the full regulatory history in order to 13 understand the effective of what the staff was doing 14 in its post-Fukushima review.
15 They've done the same thing here. That 16 still applies. And regardless of the fact that the 17 prior board was looking at this in the context of a 18 waiver petition in the Millstone criteria, it's still 19 relevant to determining whether they have provided 20 adequate support under 2.309(f)(1)(iv) -- or I'm 21 sorry, (v) or demonstrated a genuine material dispute 22 on an issue of law or fact under (vi). They still 23 haven't engaged the regulatory history to understand 24 the context of the post-Fukushima review. And 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
104 failure applies to both analyses.
1 JUDGE BOLLWERK: Okay. Ms. Curran?
2 MS. CURRAN: I don't have anything more to 3
add on that.
4 JUDGE BOLLWERK: All right.
5 MS. CURRAN: Well, one little thing which 6
is that CLI 22-0, it was either 02 or 03 said these 7
decisions from before like your LEV 22-01 are not 8
binding. So we didn't think that your description of 9
the facts was unreasonable. We just would ask you to 10 reconsider your legal conclusion in light of the new 11 analysis that's presented in this contention and the 12 new circumstance of what the Draft EIS says.
13 JUDGE BOLLWERK: All right. Let me turn 14 back to the staff since I started with you. Anything 15 further you want to say?
16 MS. WOODS: No, Your Honor. The staff 17 stands behind its arguments and its brief.
18 JUDGE BOLLWERK: Okay. All right. Let's 19 move on to contention 2 unless there are other members 20 of the board have any -- no? Okay. Contention 2, any 21 questions about contention 2?
22 JUDGE ABREU: I'll just start out with 23 just -- it's sort of a big picture question. Since 24 much of 2 and behind looks at postulated accidents, 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
105 it correct -- and this is sort of staff applicant 1
zone, to say basically there were a bunch of analyses 2
done way back when in '96 and around that era when 3
things started. And then there have been subsequent 4
analyses. And is it correct to say that sort of big 5
picture view is because the analytics changed many of 6
the risk analyses showed lower risk from the initial 7
risks that were evaluated. Is that a fair statement?
8 JUDGE BOLLWERK: Who are you asking?
9 JUDGE ABREU: Either the staff or the 10 licensee, the applicant, because that seemed to be a 11 component of several of them. I'm not saying it 12 applies exactly to all of them. But just the idea was 13 that we looked at accidents back then.
14 But now the world has changed and we have 15 new ways of looking at things. And like in one case, 16 the one component was now 266 times lower, one of the 17 components of one of the risk analyses. And so just 18 coming from a big picture view, is that a correct way 19 of viewing what's going on with a lot of these 20 postulated accident risk analyses?
21 MR. LIGHTY: Yes, Your Honor. I'll take 22 a first crack at this. This is Ryan Lighty from Duke.
23 I think that's a fair general characterization of the 24 trend that we've seen since the 1996 generic analysis 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 that with each iteration, we're refining our analyses 1
and finding that risk is actually lower than we 2
thought at the outset each time we performed this 3
analysis.
4 And if you look at what the staff has done 5
most recently, and I believe you mentioned the factor 6
of 266 reduction. So I think an important element of 7
that analysis is that the staff went from a Level 1 8
PRA analysis and has now gone to a Level 3 PRA 9
analysis. In other words, they've really, really 10 sharpened their pencils on the analysis. And that's 11 how they're getting to this more refined understanding 12 of accident risk. But I think you're correct in terms 13 of the general trend across the industry.
14 JUDGE ABREU: And when you say Level 1 15 versus Level 3, what would be sort of the general 16 public summary of what that means?
17 MR. LIGHTY: I might defer to the staff 18 for a better description there and let them weigh in.
19 JUDGE ABREU: Go right ahead.
20 MS. WOODS: Thank you, Your Honor. In 21 terms of the general characterization, the staff would 22 agree that be the '96 or the earlier analysis has been 23 bounding, if you will, in terms of that. And one 24 thing we would like to emphasize is that the review 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 that's done as part of the subsequent license renewal 1
review was new and significant information review in 2
terms of that evaluation.
3 To get to your question about Level 1, 4
Level 2, Level 3 PRA to try to make that a little bit 5
more approachable in terms of how the staff looks at 6
it for -- and I do have a little flow chart here to 7
help me. In terms of Level 1 PRA, there's an 8
initiating event that will then go into what is called 9
the Level 1 PRA which focuses just on core damage 10 frequency. So you have the reactor core and then you 11 have the containment and then you have the release.
12 Moving on in the analyses, when you get to 13 a Level 2 PRA, that goes to that containment level.
14 So you have the core for Level 1 and you have 15 containment for Level 2. And within that, that's 16 where you get into those accident sequences causing 17 core damage that feeds into that Level 2 PRA for 18 severe accident progression.
19 And then once you get to the Level 3 PRA 20 aspect of it, that gets into what is, like, the 21 outcome for population dose risk that goes into -- and 22 it also considers, like, influence of external 23 factors. And it results in whatever the consequences 24 for land contamination are. So it's a progression 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 that kind of walks through that. I hope that was 1
helpful.
2 JUDGE ABREU: So taking this concept that 3
basically you've got the '96 information which at the 4
time decides it's okay. We can go ahead with having 5
this nuclear power plant. But over time, the analyses 6
becoming sharper and actually finding that the risks 7
are lower.
8 It seemed that some of the challenge with 9
the contentions was just understanding what's in the 10 DEIS at times. So for example, in F.3.2 which relates 11 to the first component of contention 2, in the staff's 12 answer, the staff noted that table 4 clearly provides 13 historical information. So when you look at that 14 first column of data, it says 1996.
15 Okay. I gotcha. That's historical. But 16 the SAMA column doesn't have a year attached to it.
17 How would I know that is historical information?
18 MS. WOODS: That is a great question, Your 19 Honor. In terms of the description there, if you look 20 at -- and admittedly so, it does not have the revision 21 there in terms of the -- but if you look at on page F-22 14, it does indicate the accounting of it. And also, 23 it indicates that the source of information used are 24 from the 1998 Oconee analysis. And in further 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 reading, if you look at the, I guess, preceding 1
sentence before at table F-5, it does reference that 2
regarding the current ER as supplemented, Duke Energy 3
provided the overall hazard contribution to CDF for 4
Oconee station as shown in table F-5. And so table F-5 5 is the current information.
6 JUDGE ABREU: So is it fair to say that 7
you can see how it might be hard for someone to 8
understand when they look at the table to immediately 9
understand that is historical information in F-4?
10 It's really not in the table is what you're telling.
11 It's in the text on the page before that you can tease 12 it out. Is that a fair summary of what you've just 13 told me?
14 MS. WOODS: If I could consult really 15 quickly, Judge Abreu. Your point is well taken.
16 JUDGE ABREU: Okay. So I think what I'm 17 overall saying is when the staff is writing this, they 18 could try to tell us what they're saying in the big 19 picture and not just give us the data but to make sure 20 you can step back and, oh, this is the historical --
21 maybe we'll call it connections or transitions. We're 22 going to look at the historical aspect of this and 23 then put the year in if you can because that helps 24 clue us in pretty quickly. And as it is, I mean, 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
110 can understand why the petitioner did not connect when 1
they read it because it doesn't connect. So as you're 2
working on the final version, anywhere you can help 3
with that type of understanding might save us some of 4
this in the future.
5 MS. CURRAN: Judge Abreu --
6 (Simultaneous speaking.)
7 MS. CURRAN: -- would it be all right to 8
9 JUDGE ABREU: Yeah, please go ahead.
10 MS. CURRAN: -- comment on this issue 11 which in Mr. Mitman's report at page 10 in his table 12 1, he shows that at least some initiating events, the 13 frequency is going up. And so we would dispute the 14 idea that the risk is uniformly going down. External 15 flood -- I'm sorry, fire, excuse me, fire CDF is going 16 up from 1998, 4.5 times 10 to the -6 to the 2024 17 draft, 5.1 times 10 to the -5. Total internal and 18 external goes from 8.9 times 10 to the -5 in 1998 to 19 1.3 times 10 to the -4 in the 2024 draft EIS. So --
20 JUDGE ABREU: There are components.
21 MS. CURRAN: And they are significant 22 components.
23 JUDGE ABREU: But there are components 24 that you're seeing some changes going up. So then 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
111 turn back to applicant's staff.
1 MS. CURRAN: Oh, I'm sorry.
2 JUDGE ABREU: And is it fair then to say 3
that although some components -- there are certainly 4
changes in some components. But the overall 5
environmental impact hasn't changed in the analysis 6
because once you put those things together, then that 7
risk has not risen to the level of going from a small 8
to a moderate impact. Is that correct?
9 MS. WOODS: Yes, Your Honor. That's a 10 fair characterization.
11 MS. CURRAN: And we just want to point out 12 that one of those -- the total internal and external 13 has gone up, not just components of core damage 14 frequency but the total. And we're going from 8.9 15 time 10 to the -4 to 1.35, excuse me, to 1.3 times 10 16 to the -4, not insignificant.
17 JUDGE ABREU: So staff for applicant, do 18 you have anything to say based on what Ms. Curran just 19 related to us?
20 MS. WOODS: In terms of the evaluations 21 staff do, as noted before, it isn't even significant.
22 So in terms of -- the risk, some went up, some went 23 down. It is aggregated. But the staff did not find 24 that that would overturn or challenge the previous 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 findings regarding the environmental impact of 1
postulated accidents of being small. And here what 2
the staff are looking at is the population dose risk.
3 JUDGE ABREU: Okay. Mr. Lighty. Did you 4
do anything else?
5 MR. LIGHTY: Yes, I would just note the 6
purpose of the comparison of this information in table 7
F-4 to F-5, it shows the current Oconee-specific all 8
hazards CDF value. And so that's plant-specific.
9 That's not looking at generalizations across the trend 10 from 1996 but looking at the specific plant value for 11 Oconee today and comparing it to the highest CDF value 12 from the 1996 case to show that it's still bounding.
13 It's still within that. It doesn't exceed 14 something that the NRC looked at in 1996 and still 15 concluded that it was small. This number for Oconee 16 is lower than a number that was found to be small, 17 even though that number from 1996 is higher. And I 18 think that's the most important part of this 19 comparison.
20 JUDGE ABREU: And did you have something 21 in response to that?
22 MS. CURRAN: No.
23 JUDGE ABREU: Thank you. I think this 24 kind of is pulled into that same category of things 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
113 relating now to 2-2 and 2 -- I'm pulling 2-2, the 1
second and the third component, 2-3. Mr. Mitman had 2
concerns about the use of the external event 3
multiplier.
4 And you had a discussion explaining in 5
your answers about where that fit and didn't fit in 6
things. And when you talked about the component as 7
now 266 times lower that as we talked about before, 8
that feeds into that whole idea that certain risks 9
have now significantly changed. But they are still 10 bounded by the '96 even if perhaps some other risks 11 have increased a noticeable amount. Is that a fair 12 summary of how you're seeing those components of the 13 contention? Is that --
14 MS. WOODS: That is a correct assessment, 15 Your Honor.
16 JUDGE ABREU: So again, it's that balance 17 of some things re better. Some things may have 18 shifted a bit. But overall, we're still bounded by 19 the '96 results which were small.
20 MS. WOODS: Yes, Your Honor.
21 JUDGE ABREU: Okay. Ms. Curran, do you 22 have any comment on those on their responses?
23 MS. CURRAN: Excuse me. One second.
24 JUDGE ABREU: Sure.
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114 MS. CURRAN: Our comment is it's hard to 1
say that there's a 266 times decrease when the total 2
internal and external CDF is going up.
3 JUDGE ABREU: Okay. Mr. Lighty, do you 4
have any thoughts on this whole matter?
5 MR. LIGHTY: Well, I would note that the 6
CDF number again is the Level 1 PRA that we were 7
talking about before. And then when we go and sharpen 8
our pencils to do the Level 3 analysis that's much 9
more accurate, that's the factor of 266 reduction that 10 we're seeing. So even though there's a higher CDF, 11 when you sharpen your pencil and do the real analysis, 12 it's gone down by a factor of 266. And None of this 13 other information comes close to challenging that 14 number.
15 JUDGE ABREU: Staff, did you have anything 16 else to add to that?
17 MS. WOODS: No, Your Honor. Thank you.
18 MS. CURRAN: We have a question --
19 JUDGE ABREU: Okay.
20 MS. CURRAN: -- which is whether either 21 Duke or the NRC ever did a Level 3 analysis that was 22 based on this changed internal and external core 23 damage frequency figure of 1.3 times 10 to the -4.
24 Was that used to do a Level 3 analysis?
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115 JUDGE ABREU: Staff, did you have a 1
response?
2 MS. WOODS: As I understand it, in terms 3
of how these calculations are done in the initial 4
license renewal is where this extensive analysis is 5
done. And in this situation the staff is looking at 6
as is noted in the DEIS is a new and significant 7
information determination. And so the staff are 8
looking at, has there been any new and significant 9
information that would challenge its previous findings 10 that the postulated accidents for Oconee station 11 subsequent license renewal are small. And the 12 information there did not challenge that as the staff 13 noted. Its findings are still small.
14 JUDGE ABREU: All right. And Mr. Lighty?
15 MR. LIGHTY: I believe that's a correct 16 characterization to go back to my opening remarks on 17 understanding a broader context of contentions 2 and 18 3 and the purpose of the review and the DEIS to look 19 at it and sort of make a binary determination. Would 20 this change the outcome of the prior conclusion? And 21 that was really the purpose of this external events 22 analysis.
23 JUDGE ABREU: Okay. All right.
24 JUDGE BOLLWERK: Ms. Curran, do you have 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 anything to say further?
1 MS. CURRAN: Just one moment, please.
2 JUDGE BOLLWERK: Sure.
3 MS. CURRAN: This really raises our 4
concern about the aggregation of changes in risk that 5
the draft EIS looks at each factor separately without 6
getting the whole picture accurately. And that is one 7
of Mr. Mitman's criticisms in our contention. This is 8
Section 3.2.4 of his report. And he has a table 6 9
that breaks down the -- or that suggests an 10 aggregation of changes in risk. So if you don't do 11 that, it's hard to justify saying that there's an 12 overall decrease if you haven't done that work.
13 JUDGE ABREU: All right. Mr. Lighty, you 14 look like you have a --
15 (Simultaneous speaking.)
16 MR. LIGHTY: Yeah, I was just going to add 17 a brief clarification. The factor of 266 is the 18 comparison against the 1996 Oconee specific value. So 19 that's where that comes from.
20 JUDGE ABREU: Okay. And then do you have 21 a comment about what Ms. Curran was just saying about 22 the cumulative aspect of the risk?
23 MR.
LIGHTY:
I think
- again, 24 understanding this in a context of a new 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
117 significant information review is really important 1
because the purpose of appendix F is not to 2
recalculate every quantitative value in the analysis.
3 It's to look at the information and say even without 4
a quantitative analysis, is this going to trip the 5
threshold of exceeding all of the reductions that 6
we've seen in the actual plant-specific values from 7
before to now? And that's, again, a binary 8
determination.
9 JUDGE ABREU: Staff?
10 MS. WOODS: Thank you. If I may, on page 11 F-14 of the DEIS, it does indicate that the total 12 plant CDF referred to as the all hazards CDF from the 13 same analysis is the summation of the CDFs for 14 internally initiated events, including internal flood 15 events and external events. Thank you.
16 JUDGE ABREU: So that to you is -- that is 17 the cumulative look at things?
18 MS. WOODS: As I understand it, that is 19 the summation and the aggregation.
20 JUDGE ABREU: Did you have anything else, 21 Ms. Curran?
22 MS. CURRAN: One minute.
23 (Pause.)
24 MS. CURRAN: We're concerned that there 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 isn't really an aggregate analysis. They evaluate 1
each factor separately and look at if there's a 2
change. And then they put it together so that you're 3
basically working on margins with each little -- with 4
each factor. And what we're asking for is an 5
aggregation that looks at the overall change in core 6
damage frequency and looks at whether that is 7
significant as opposed to each individual factor. And 8
their addition on page F-14 doesn't really address our 9
concern.
10 JUDGE ABREU: It looks like the staff has 11 a comment.
12 MS. WOODS: If I could have a minute to 13 consult, Your Honor.
14 JUDGE ABREU: Certainly.
15 MS. WOODS: Thank you. So again, while 16 this evaluation was done on a site-specific basis 17 consistent with the Commission order, the staff 18 informs me that the aggregation is the same in terms 19 of methodology that she used in the 2013 GEIS. And 20 also in their understanding, they're basically asking 21 for an updated CDF value which as the staff has noted 22 several times in this proceeding as well as in the EIS 23
- or DEIS, my apologies, that this is an evaluation of 24 new and significant information to determine 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
119 or not the previous finding of small is challenged 1
based upon this application. Thank you, Your Honor.
2 JUDGE ABREU: Mr. Lighty?
3 MR. LIGHTY: And I would just note I 4
believe we noted in our brief that the staff looked at 5
this and reached a collective conclusion as well. It 6
didn't just look at each individual but its conclusion 7
is collective.
8 JUDGE ABREU: All right.
9 JUDGE BOLLWERK: Anything, Ms. Curran? I 10 think we're done.
11 MS. CURRAN: No, thanks.
12 JUDGE BOLLWERK: All right. Okay. I just 13 have one question. So the member report provides six 14 concerns relative to the contention. Which one of 15 these do you think is the strongest or most compelling 16 in terms of supporting the admission of the 17 contention?
18 MS. CURRAN: You're asking us which of our 19 children we love the most. One minutes.
20 (Pause.)
21 MS. CURRAN: Okay. I'm going to give you 22 two.
23 JUDGE BOLLWERK: All right.
24 MS. CURRAN: You think that might be --
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120 JUDGE BOLLWERK: Close.
1 MS. CURRAN: -- Solomonic of one thing, 2
but the two are Mr. Mitman's Section 3.2.3, 3
underestimating risk by failing to aggregate changes 4
-- oh, I'm sorry. So 3.2.4, and -
5 JUDGE BOLLWERK: That's the one we just 6
talked about, I think.
7 MS. CURRAN: That's the one we just talked 8
about.
9 JUDGE BOLLWERK: All right.
10 MS. CURRAN: They aggregate core damage 11 frequency appropriately. But then they don't carry it 12 through to Level 3. That's the concern there.
13 JUDGE BOLLWERK: Okay.
14 MS. CURRAN: And then the other is the 15 failure to address uncertainties which was Mr.
16 Mitman's report, Section 3.3.
17 JUDGE BOLLWERK: 3.3, okay. Thank you.
18 All right. Okay. Anything else on contention 2? All 19 right. Let's move to contention 3 then. And we're 20 getting close to the three hours. But hopefully we're 21 not going to go over too much here.
22 So with respect to contention 3, my first 23 question is for the staff. Recognizing that we 24 indicated that the 2024 rule doesn't -- will not apply 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 in this particular proceeding for the reasons I gave 1
at the beginning nonetheless has this question. The 2
recently adopted 2024 rule incorporates two climate 3
change-related issues into Part 51, appendix B, table 4
B-1.
5 One entitled greenhouse gas impacts on 6
climate change and the other called climate change 7
impacts on environmental resources. These two issues 8
are Category 1
and Category 2
respectively.
9 Recognizing that the rules will not be in effect until 10 the board's decision of the admissibility of the 11 petitioner's three contentions has made that ruling.
12 I nonetheless would like your views on whether the 13 climate change assessment issues raised in contention 14 3 would fall under of these B-1 -- these table B-1 15 issues as adopted in the new rule would fall under 16 some other B-1 table issue as set forth on the new 17 rule or would not be covered by table B-1 at all.
18 MR. BERNSTEIN: Your Honor, they would not 19 be covered by either of the new categories adopted in 20 the 2024 GEIS.
21 JUDGE BOLLWERK: Would they fall into some 22 other category then?
23 MR. BERNSTEIN: No, Your Honor.
24 JUDGE BOLLWERK: So they don't fall under 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 table B-1 at all?
1 MR. BERNSTEIN: No, Your Honor. As 2
explained in the staff's DEIS, the impacts of climate 3
change on SSCs are outside the scope of staff's 4
environmental license renewal review.
5 JUDGE BOLLWERK: Including the provisions 6
on severe accidents and beyond design basis accidents?
7 MR. BERNSTEIN: Yes, Your Honor.
8 JUDGE BOLLWERK: Okay. Mr. Lighty?
9 MR. LIGHTY: I would take a different view 10 of that. I agree that the claims in contention 3 11 don't fall into either of the new climate change 12 related issues. But I think that the issues that are 13 being raised here in terms of climate change and 14 accident risk, accident risk is evaluated in the 15 severe accidents issue.
16 The NRC uses that to evaluate the 17 probability weighted consequences of a postulated 18 severe accident. And so the risk analysis is part of 19 that. And I do think that's the piece of the EIS that 20 they are attempting to challenge.
21 JUDGE BOLLWERK: All right. Ms. Curran, 22 if you need a couple seconds to look, I won't say I 23 caught you by surprise maybe. But given what we said 24 about the rule, we, again, understand you need to take 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 a look for a couple seconds.
1 (Pause.)
2 MS. CURRAN: It seems clear to us from the 3
draft EIS that the staff things climate change impacts 4
on accident risk are outside the scope of the draft 5
EIS. And your question is if they were -- I think 6
your question is if they were, did they fall under any 7
category of environmental impact that's in the rule?
8 JUDGE BOLLWERK: Right. Well, the GEIS is 9
out there and has a category. My question is simply, 10 would this contention fall within either of the two 11 categories that are stated or some other category 12 under table B-1 as it's going to be put forth when the 13 rule becomes effective?
14 MS. CURRAN: I think we've got to back up 15 from that a little bit because it's not our job, the 16 petitioner's especially. We're not the NRC. We don't 17 know how the NRC should address climate change impacts 18 on accident risk.
19 We just know we've got plenty of evidence 20 that climate change can have a foreseeable effect on 21 the likelihood and the severity of accidents. And 22 it's the NRC's responsibility in the first place to 23 decide to look at it. And then how does that fit in 24 to the NRC's regulatory scheme?
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124 So it just doesn't seem like our job to 1
say what category that falls into. We'd like to see 2
what the NRC is going to say about the impacts, the 3
affects of climate change on accident risk. It could 4
be something that affects design basis accidents.
5 It could be affecting the beyond design 6
basis accidents. It could be a whole new category.
7 It's kind of up to the NRC to decide what that means.
8 We do know from the FEIS at page 3-30 that the NRC has 9
decided not to look at it at all.
10 JUDGE BOLLWERK: All right. Anything 11 further the staff wants to say since we started with 12 the staff?
13 MR. BERNSTEIN: Your Honor, the contention 14 3 is raising safety-related issues. And the 15 environmental review looks at the impact on the 16 environment of the plant and not in the impact of the 17 environment on the plant itself. I hope I said that 18 right.
19 JUDGE BOLLWERK: So your position that 20 nothing in table B-1 would cover this contention if it 21 were applicable?
22 MR. BERNSTEIN: Nothing in table B-1 in 23 the 2024 GEIS would cover this contention. That is 24 correct, Your Honor.
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125 JUDGE BOLLWERK: Okay, great. I have to 1
go back to Ms. Curran, but it's up to you.
2 MR. LIGHTY: Sure. I apologize. I just 3
wanted --
4 JUDGE BOLLWERK: It's all right.
5 MR. LIGHTY: -- to respond to something 6
Ms. Curran had suggested that --
7 JUDGE BOLLWERK: I just want to make sure 8
Ms. Curran knows her turn is coming.
9 MR. LIGHTY: Sure, sure. I just wanted to 10 respond to the comment that it's not the petitioner's 11 burden to point out why something is wrong or what 12 needs to be done to fix it. And I think that sounds 13 a bit to me like some burden shifting here because at 14 the contention admissibility stage, it is the 15 petitioner's burden to show that there is a genuine 16 material dispute on an issue of law or fact. And they 17 haven't done that here because the severe accidents 18 analysis looks at the factors that are embedded in the 19 word, climate change.
20 That would affect accident risk, things 21 like external hazards, precipitation amounts, or wind 22 velocities, things like that. Those are considered in 23 the accident risk analysis. And it's not enough to 24 just say, well, climate change, there's a new word.
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126 But they have to show why the existing 1
analyses of precipitation amounts or wind velocities 2
are somehow going to be overcome and materially 3
overcome in the future. And they haven't even 4
attempted to make that analysis, that comparison of 5
information. There is an existing analysis of that in 6
the draft EIS. And the petitioner simply haven't 7
engaged with the relevant factual material to show 8
that there is a dispute here that's appropriate for a 9
hearing.
10 JUDGE BOLLWERK: Okay. Ms. Curran?
11 MS. CURRAN: Well, I think your question, 12 Judge Bollwerk, was, well, what bin should climate 13 change go in, in the regulatory scheme?
14 JUDGE BOLLWERK: As defined by your 15 contention, yes.
16 MS. CURRAN: Yeah, and that's a different 17 question than is our contention admissible? Did we 18 support an admissible contention? We're just telling 19 you that we're not the experts on if the NRC does take 20 a look at climate change, how they should bin these 21 impacts, how they should put them in big categories 22 and look at them.
23 But we did. We did show that, first of 24
- all, climate change impacts are potentially 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
127 significant in frequency and severity. And we show 1
that the NRC doesn't have a systematic way of looking 2
at them and that the GAO said they're different from 3
-- you can't just -- it's -- you can't say that your 4
conservatism envelopes a
factor that affects 5
environmental risk if you don't know what's the scope 6
of that risk.
7 You don't know severe it is. You don't 8
know how often these risks occur. How can you say 9
that you have a conservative analysis that looks at 10 external events and therefore must take this into 11 account.
12 I think that was the point of what the GAO 13 was saying is you need to look at this and you can't 14 just sweep it into we do a good job in general. We're 15 conservative. We have margins.
16 You might need some better margins if you 17 look at this. That's what the hard look is. The hard 18 look is we're really taking this into account. We've 19 got a sense of the scope of this problem and we're 20 going to evaluate whether our program takes it into 21 account adequately.
22 And we did give examples of how climate 23 change could affect Oconee with respect to flooding 24 risk. Mr. Mitman's report talks -- he gives -- he 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
128 doesn't have an example from the Oconee site. But he 1
has an example from nearby Alabama where the increase 2
in flooding from climate change could actually cause 3
flood levels in the lake behind the Jocassee Dam to go 4
up significantly and therefore potentially cause 5
overtopping of the Jocassee Dam. So we have an 6
example of how climate change could affect the Oconee 7
plant. We've satisfied the requirements for showing 8
reasonable foreseeability and that climate change can 9
affect Oconee and that climate change is not taken --
10 is not exclusively taken into account in any of the 11 accident analyses for Oconee.
12 JUDGE BOLLWERK: All right. Started with 13 the staff. Let me go back to the staff --
14 (Simultaneous speaking.)
15 MR. BERNSTEIN: Yes, Your Honor. I would 16 like to reiterate. These issues are subject to 17 staff's ongoing oversight programs. And these are 18 safety-related concerns.
19 Just for one example, the staff has the 20 process for the ongoing assessment and natural hazards 21 information or POANHI which is staff's guidance 22 document for that is LIC-208. But that looks at if 23 there's a potential need to examine the current 24 licensing basis for a plant in response to either 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
129 environmental changes or changes in understanding to 1
the environment So these processes are considered on 2
the ongoing licensing basis. And they are out of the 3
scope of subsequent license renewal.
4 JUDGE BOLLWERK: Interesting. The 5
response to a bidding question, many interesting 6
answers. Okay. Thank you. Oh, do you have something 7
say? No?
8 MR. LIGHTY: No, Your Honor.
9 JUDGE BOLLWERK: Okay. All right.
10 Another question. This one is for the petitioner. In 11 its decision in LVP 24-3, the opinion of 33, the 12 Turkey Point licensing board rejected a climate change 13 contention not dissimilar to petitioner's contention 14 3 on the basis that petitioner Miami Waterkeeper's 15 arguments and a report by Mr. Mitman regarding climate 16 change on which petitioner relied as a basis for its 17 contention and properly speculate that climate change 18 impacts may be significant or could be significant.
19 Does Mr. Mitman's reports supporting 20 petitioner's contention 3 different in any material 21 respect from his Turkey Point climate change report?
22 If so, how does the report here avoid or address the 23 deficiency identified by the Turkey Point board? Or 24 if not, why shouldn't this board reach the same 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
130 conclusion regarding the member of the board here as 1
did the Turkey Point board?
2 MS. CURRAN: There are -- these two 3
differences with the circumstances of the Turkey Point 4
decision, the first is at that time, the GAO report 5
had not come out. And the GAO report, this is an 6
independent agency that's created by Congress to look 7
into issues of concern that Congress made an 8
independent evaluation. Climate change, the effects 9
of climate change on accident risk are potentially 10 significant.
11 Oconee was listed as a plant that is in a 12 high risk -- area of high risk for flooding. The GAO 13 expressed concern that the NRC does have kind of 14 ongoing evaluation as Mr. Bernstein was describing but 15 doesn't have a way to bring the climate change issue 16 to bear on licensing decisions. And that's the first 17 aspect.
18 And the second is that I believe the 19 Turkey Point licensing board criticized Mr. Mitman for 20 not presenting a scenario. How could climate change 21 affect Turkey Point? But he has done that in the 22 Oconee -- the case of Oconee.
23 It's on page 44 of his expert report where 24 he describes -- it's in the third paragraph of the --
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131 well, there's a -- I guess it's the second full 1
paragraph. So how could climate change exacerbate 2
flood impact at Oconee? He goes into detail about how 3
climate change could affect probable maximum 4
precipitation and -- yes, with respect to an extra 3 5
percent of free board -- I'll just let you read it, 6
but it's there.
7 JUDGE BOLLWERK: You've identified it 8
then?
9 MS. CURRAN: It's better for --
10 JUDGE BOLLWERK: That's fine. We're good.
11 MS. CURRAN: Which is one reason why the 12 petitioners do not paraphrase Mr. Mitman to a great 13 extent in their contention because it's like playing 14 telephone. It's better to refer the reader to Mr.
15 Mitman's report which is concise. I'm not asking you 16 to read a lot of stuff. We point you to the right 17 section of his analysis. And that's where it is, his 18 technical analysis on which we rely.
19 JUDGE BOLLWERK: All right. That's also 20 in response to Mr. Lighty's point. But I'm not going 21 there with this point. Does staff have anything to 22 say?
23 MR. BERNSTEIN: Yes, Your Honor. With 24 regard to the specific PMP scenario that petitioner 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
132 has raised, this scenario is speculative and rests on 1
very few citations to the record. And as staff has 2
pointed out within our pleading and opening statement, 3
this does not account for the diverse and different 4
means of passing water at Lake Jocassee.
5 JUDGE BOLLWERK: All right. Mr. Lighty?
6 MR. LIGHTY: Back to your original 7
question, Your Honor, about the similarities or 8
dissimilarities with the Turkey Point proceeding. And 9
I would point you to page 54 of our answer pleading.
10 And we say that Mr. Mitman's ultimate conclusion is 11 essentially climate change will increase CDF, LERF, 12 and population dose values.
13 But he does not identify any specific 14 values that purportedly would increase as a result of 15 climate change. That's true in Turkey Point and 16 that's true here. He does not opine on how much those 17 values might increase.
18 He does not compare those speculative 19 increases to any corresponding analysis currently 20 provided in the DEIS. That's true. Even looking at 21 page 54 of the Mitman report that Ms. Curran just 22 referenced, that paragraph.
23 It does not compare the existing staff 24 analysis to something else. And he doesn't explain 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
133 why that comparison that didn't occur would expose a 1
material deficiency in the current analysis or why the 2
NRC's highly conservative approach to accounting for 3
uncertainty in severe accident analysis, the margin 4
that we were talking about before. I think I 5
mentioned the 50 percent conservatism in a local 6
intense precipitation event.
7 And it doesn't explain why that margin is 8
insufficient somehow to account for potential future 9
climate conditions. That was true in the Turkey Point 10 proceeding. That's still true here.
11 JUDGE BOLLWERK: All right. Ms. Curran, 12 your response?
13 MS. CURRAN: One minute.
14 (Pause.)
15 MS. CURRAN: We as the petitioner simply 16 don't have the technical capability of propagating the 17 PMP through to a Level 3 analysis. We do the best 18 that we can with the information that's available to 19 us. And we think we have raised a dispute worth 20 pursuing.
21 JUDGE BOLLWERK: All right. Thank you.
22 Judge Miller, I think you have a question.
23 JUDGE MILLER: I do. I think it'll be 24 just one. How long it takes, we'll see. So I want 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
134 explore for a second the statement that you've made 1
and that is in the draft EIS that the effects of 2
climate change on the Oconee are outside of the scope 3
of the NRC's staff license renewal, right? Excuse me.
4 The effects of any climate change on the external 5
resources and those external resources to the plant 6
and then back to the environment are not addressed.
7 Is that a correct?
8 MR. BERNSTEIN: Yes, Your Honor. The 9
effects of the environment on a plant are addressed in 10 the plant's technical specifications.
11 JUDGE MILLER: Okay. You do go on to --
12 and when I say you, the staff. You do go on to say 13 nonetheless changes in climate could have broad 14 implications. And you go on to talk about a few of 15 those climate change on the environmental resources 16 that the plant utilizes.
17 But I guess what I'm trying to get at, 18 what I'm trying to understand as I read this section, 19 it felt a bit contradictory. So I wanted to ask this 20 question, maybe clarify it and understand better. So 21 I understand that there are places already in place, 22 your ROP, aging management, technical specifications 23 where you are, if I understand correctly, continuously 24 looking at certain environmental factors that play 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
135 role in the plant, like, for example, water 1
temperature, inlet water temperature and how that 2
might impact the thermal efficiency of your pumps in 3
your steam plant.
4 But at what point do we circle back to the 5
analysis, back to the risk to the -- or change to the 6
environmental impact, right? If you take this all the 7
way full circle, so climate changes has effects on the 8
environmental resources. Okay? Those environmental 9
resources, some of which are used by the power plant.
10 Okay?
11 Those environmental resources if changed 12 can change potentially how a plant operates and could 13 potentially impact how it reacts to an accident and/or 14 cause an accident. And now the last piece of that 15 which is as the environment changes due to climate 16 change which we know is happening. These are more 17 extreme.
18 We just got through a heat wave. I think 19 we're still in a heat wave right now in D.C. How that 20 then changes, if at all, the impact to the 21 environment? So taking it back to the EIS.
22 MR. BERNSTEIN: Yes, Your Honor. That's 23 a fantastic question. I think what you're asking is 24 that if there is a change to the current licensing 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
136 basis due to environmental conditions over time, if 1
there's a change to the current licensing basis, that 2
would be evaluated as new and significant information 3
when appropriate when staff is preparing its EIS. So 4
if that change to the current licensing basis has 5
occurred, staff will look to that as potentially new 6
and significant information. But you would not look 7
in anticipation of that change to the current 8
licensing basis in a prospective EIS.
9 JUDGE MILLER: So what happens between 10 EISs?
11 MR. BERNSTEIN: That would fall into the 12 new and significant information in between those EISs.
13 That would possibly -- staff would look to it if it 14 changes its previous determination.
15 JUDGE MILLER: Okay.
16 JUDGE ABREU: So you're saying it would be 17 looked at then in the next EIS?
18 MR. BERNSTEIN: Yes, Your Honor.
19 JUDGE BOLLWERK: Even if that EIS was 20 20 years away?
21 MR. BERNSTEIN: If that's when he changed, 22 the current licensing basis occurred.
23 JUDGE MILLER: So how -- if we agree --
24 and you can disagree with this statement -- that when 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
137 it comes to climate change, past can't always be 1
prologue, that what we see happen are more at times 2
step changes in the environment in natural hazards 3
where these one in a million or one in a hundred year 4
storms or whatever, they're happening more often.
5 We're breaking heat records almost every day. I'm 6
being slightly hyperbolic. So then how is this not 7
then a lagging indicator versus trying to make it more 8
of a leading indicator which might be a little bit of 9
what the petitioner is talking about?
10 MR. BERNSTEIN: Well, Your Honor, an EIS 11 is a snapshot in time of the current licensing basis 12 as the accident risk is analyzed in appendix F, the 13 plant's current understanding of its current licensing 14 basis. That current licensing basis will carry 15 forward into the very near term. But BIS only 16 requires a
snapshot in time of the current 17 understanding of the environment as it is now for the 18 current licensing basis. And your question, while I 19 appreciate it, it does go back to a safety analysis.
20 And a plant's current license basis will provide 21 adequate protection into the future.
22 JUDGE ABREU: I just want to clarify one 23 thing to make sure we heard you correctly or what we 24 were supposed to hear. So let's say the year 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
138 following your initial license renewal and you become 1
aware that there are some environmental changes that 2
are going to change the current licensing basis. And 3
then that would then be new and significant 4
information that would go into the next EIS which in 5
this case would be roughly a little short of 20 years 6
later. And so there's a big lag on when it is looked 7
at as an environmental impact.
8 MR. BERNSTEIN: Yes, Your Honor. But this 9
EIS is just a snapshot in time.
10 JUDGE ABREU: Right. But the idea is that 11 there is a lag on something changes in the licensing 12 basis that might have a change to the environmental 13 impact. Then since we only look at those with EISs 14 that come along with renewals, there's just a lag 15 there. And that's just how it is.
16 JUDGE BOLLWERK: Except that if that was 17 really a change.
18 JUDGE ABREU: Well, let me --
19 (Simultaneous speaking.)
20 JUDGE BOLLWERK: Okay. All right.
21 MR. BERNSTEIN: Well, Your Honor, before 22 the record decision is made, the staff could issue a 23 supplemental EIS to make sure that record decision is 24 correct.
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139 JUDGE ABREU: So if there were a 1
significant change and an impact, would it be typical 2
for the staff to issue a supplemental EIS somewhat, 3
like, in a sense, proactively before you wait 15 4
years?
5 JUDGE BOLLWERK: Can I add one other 6
thing? Wouldn't that be in the context of some kind 7
of licensing action that reflected in the design basis 8
or some other way that something has changed?
9 JUDGE ABREU: Yes.
10 JUDGE BOLLWERK: Whether it was staff 11 imposed or requested. It'd probably be staff imposed.
12 MR. BERNSTEIN: Yes, Your Honor. In 13 association with any regulatory action, staff always 14 prepares an environmental assessment to go and 15 accompany those safety evaluations?
16 JUDGE ABREU: So there really wouldn't be 17 as big a lag as it sounded like. What you're saying 18 is at the time of a license action which there would 19 be if there was a significant change to the licensing 20 basis, then --
21 JUDGE BOLLWERK: So the backfit rule, we 22 heard that.
23 (Simultaneous speaking.)
24 JUDGE ABREU: Right. But then there would 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
140 be an additional statement come out to reflect that 1
change in environmental impact.
2 MR. BERNSTEIN: We're going to consult for 3
a second here.
4 (Pause.)
5 MR. BERNSTEIN: Yes, Your Honor. There is 6
a small clarification. If there is a licensing action 7
that is categorically excluded from environmental 8
review, then an environmental review would not be 9
concluded on those issues.
10 JUDGE MILLER: So where I was trying to go 11 with this is that in reading this document and reading 12 this particular section, that nuance is not there or 13 at least I'm not seeing it. And I can see that 14 someone in the public, it would be difficult for them 15 to appreciate that. The reading, the way it comes 16 across is just we don't look at this. And it's not 17 really clear how that circle that I talked about 18 earlier really gets completed and that there's a way 19 in which with these -- especially around climate 20 change with these things that change very rapidly that 21 would be assessed in near real time or closer to real 22 time than once every 20 years.
23 MR. BERNSTEIN: Your point is well taken, 24 Judge.
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141 JUDGE BOLLWERK: I think the staff just 1
doesn't issue EISs that aren't related to a licensing 2
action, does it? Supplements or any -- it just 3
doesn't issue environmental impact statements or 4
supplements that kind of stand on their own. Don't 5
they have to be tied to some kind of a licensing 6
action?
7 MR. BERNSTEIN: Your Honor, the initial 8
questions I was responding to were in coordination 9
with the subsequent license renewal where staff --
10 (Simultaneous speaking.)
11 JUDGE BOLLWERK: Okay, licensing action 12 obviously. Okay. Let's hear from Mr. Lighty and then 13 we'll head to you.
14 MR. LIGHTY: Yes, and --
15 JUDGE BOLLWERK: Did you have anything 16 else?
17 JUDGE MILLER: No, no. Thank you.
18 MR. LIGHTY: Thank you, Your Honor. I 19 would note that there are specific guidelines for 20 supplementing, for example, a final EIS or a draft 21 EIS, for example, in Part 51, Section 51.92 provides 22 the criteria for supplementation. If there is, as you 23 mentioned, some other kind of licensing action that 24 would be taken because the current licensing basis 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
142 going to be altered, that would be another action, 1
another opportunity.
2 And the staff would determine whether it 3
is a major federal action, potentially affecting the 4
environment. And so those reviews would be connected 5
there. But I do think it's important to understand 6
that the current analyses do look into the future.
7 That snapshot is not just meteorological 8
information as of today. It is -- if you look back to 9
appendix 4 of the GAO report and the NRC's official 10 response letter, what's being looked at is that 11 information that would cover the entire licensed 12 operational lifetime of the reactor. So there is 13 foresight.
14 They're looking into the future for the 15 operational lifetime of
- that, assessing the 16 meteorological conditions that may be present, the 17 climate change effects if you will. And they're using 18 the best available information today to project that 19 into the future and performing a NEPA analysis. NEPA 20 doesn't require anything more than doing the best that 21 you can because you're not required to have a crystal 22 ball.
23 But it is -- the staff's review is forward 24 looking. I would also note that if we're talking 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
143 about potential climate changes that would alter the 1
licensing basis for a plant, the NRC's structure for 2
evaluating in the draft EIS is that there's design 3
basis accidents analysis and a severe accidents 4
analysis. And it covers the entire spectrum.
5 And what we're talking about in terms of 6
potential current licensing basis changes is where is 7
the line between the two. That question is irrelevant 8
to the current discussion because regardless of where 9
that line falls, the analysis considers things that 10 are on the left side of the line and things that are 11 on the right side of the line. It covers design basis 12 accidents and beyond design basis accidents. And so 13 when you understand that in the context of we're using 14 the best information we can on meteorological 15 conditions now to project what may happen in the 16 future and we're looking at that to assess both design 17 basis and severe accidents, the entire field is 18 covered. There's not a gap that's not being met or 19 some requirement by NEPA that's unfulfilled.
20 JUDGE BOLLWERK: Ms. Curran?
21 MS. CURRAN: Just a few points. I think 22 that in terms of this idea that the EIS is a snapshot 23 of the current licensing basis, the EIS -- I guess 24 maybe there's some snapshots in there. But the more 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
144 important thing is that an EIS is supposed to take 1
into account all relevant factors that affect the 2
environmental impacts of this, whatever the decision 3
is during whatever the time period that it's supposed 4
to take place.
5 So we have subsequent license renewal 6
another 20 years. The EIS -- NEPA requires the EIS to 7
take into account all relevant factors at the time.
8 And it's not just a snapshot.
9 It's taking into account anything that is 10 material. And I want to direct you to the New York v.
11 NRC case that's cited in our hearing request. It's 12 681 F.3d 471 because that was the waste confidence 13 rule.
14 And I believe there's a section of that 15 decision where the NRC said, we're looking at waste 16 disposal issues. We're kind of dealing with that in 17 our general oversight over nuclear plants. And we're 18 going to take care of it.
19 It's in our safety regime. We got it 20 covered. And the court said, no, you're passing a 21 rule here that is supposed to provide licensing 22 support for all these reactors that are going to get 23 relicensed or new licenses.
24 And in those licensing decisions, you have 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
145 to address the environmental impacts of spent fuel 1
disposal. You can't say it's just part of our general 2
oversight. We're keeping an eye on things.
3 I think that is a really helpful case.
4 And then finally, I cannot remember the case where 5
these words were used. But the phrase has been used 6
many times that NEPA is an action forcing statute.
7 It pushes agencies to consider 8
environmental issues that they perhaps would prefer to 9
put on the back burner for a little while. It forces 10 agencies -- and this is in Robertson v. Methow Valley 11 to consider the risk before the die is cast. You want 12 to make sure that when you walk into something, you've 13 looked at everything that's relevant that could have 14 a significant bearing on your decision.
15 And the purpose is to make sure that if 16 there's some alternative you ought to be considering, 17 you weigh that. And here the NRC is saying, we're 18 going to put climate change outside over there in our 19 general oversight when we know and the GAO supports us 20 in saying this could really affect the environmental 21 impacts of this plan. Why don't we look now at what 22 could be done to mitigate those impacts?
23 It could be building that wall, that flood 24 protection wall. Let's have a look. That's what 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
146 we're saying.
1 JUDGE BOLLWERK: All right. We'll start 2
with the staff. Anything further the staff wants to 3
say?
4 MR. BERNSTEIN: Yes, Your Honor. In 5
response to New York v. NRC, that particular decision 6
that Mr. Curran has referenced used retrospective data 7
to look at the future accidents. Here staff has 8
actually prepared in appendix F a prospective look at 9
the risk of postulated accidents.
10 Petitioners are attempting to distinguish 11 that based on climate change. But that is not a --
12 staff's review is prospective in this case. And 13 further as a clarification, there has to be a 14 licensing action to trigger an environmental review.
15 We wouldn't initiate a supplement with 16 that license amendment request or renewal.
17 Specifically, this is not an EIS review they're 18 challenging. Operation means ongoing safety review 19 and oversight and not license renewal.
20 JUDGE BOLLWERK: All right. Anything 21 further from either of the board members? Mr. Lighty, 22 do you want to say something?
23 MR. LIGHTY: If I may very briefly just 24 respond to Ms. Curran's question -- rhetorical 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
147 question, I think. Why don't we look at this now?
1 The staff has looked at this.
2 The staff has looked at accidents, 3
hypothetical accidents that could occur as a result of 4
external events such as high wind events or 5
precipitation events. The problem with the contention 6
is that the petitioners haven't explained why that 7
existing analysis and its extreme conservatism is not 8
enough. They didn't bother to do that comparison, and 9
that's the real issue here.
10 JUDGE BOLLWERK: Ms. Curran?
11 MS. CURRAN: I think the GAO explains the 12 difference between historical data and climate change 13 analysis. And I think Judge Miller referred to that.
14 It's not -- past is not necessarily prologue with 15 respect to climate change.
16 It's one thing to say we've looked at all 17 the data from the past and we're making an accident 18 analysis based on our projection of the continuation 19 of past history. We are in an era where the climate, 20 the weather, storms are changing radically rather 21 quickly, intensely. And this is what the GAO is 22 asking NRC to do is to look at that fundamentally 23 different set of factors that's affecting accident 24 risk. Can't be answered by looking at historical risk 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
148 which is what we have in the EIS. This is something 1
different.
2 JUDGE BOLLWERK: All right. Back to the 3
staff, final wrap up if you have any.
4 MR. BERNSTEIN: Your Honor, the staff 5
rests on its brief.
6 JUDGE BOLLWERK: All right. Any questions 7
on contention 3 or anything else by the board members?
8 (No audible response.)
9 JUDGE BOLLWERK: All right. With that, 10 we'll conclude this pre-hearing conference and oral 11 argument on petitioner's three NEPA associated 12 contentions challenging the NRC's draft SEIS regarding 13 Duke's subsequent licensing renewal application for 14 Oconee nuclear facility. I should say I can remember 15 the first one was three and a half hours. I think 16 this one is right on the same part.
17 So apparently, this is the amount of time 18 it takes to talk about Oconee, three and a half hours.
19 We very much appreciate the presentations by the 20 participants' counsel and the information they 21 provided in response to the board's questions. Before 22 adjourning, I also want to take a moment to thank 23 those on the licensing board panel staff who made it 24 possible for us to conduct this argument.
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149 We are, as always, indebted to Andy Welkie 1
and to Joe Deucher for the panel's information 2
technology staff for ensuring the flawless operation 3
of the IT infrastructure associated with this 4
conference. The same is true regarding our 5
administrative assistant Sara Culler who has rendered 6
invaluable assistance in issuing various notices and 7
orders that provided the participants and the members 8
of the public the information about this conference as 9
well as ensuring that our hearing room was properly 10 configured for this conference. Our thanks as well to 11 our court reporter who we hope counsel will assist 12 after we adjourn with any questions that she might 13 have about names or terms or any other clarifying 14 details regarding anything that was discussed during 15 today's conference.
16 And again, I would ask the staff if there 17 are any questions or concerns about the transcript and 18 about non-public information, provide the board and 19 the parties with a notice as promptly as possible 20 after you receive the transcript. And with that, we 21 stand adjourned. And thank you all very much.
22 (Whereupon, the above-entitled matter went 23 off the record at 5:07 p.m.)
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