ML25143A151
| ML25143A151 | |
| Person / Time | |
|---|---|
| Site: | Palisades  |
| Issue date: | 05/23/2025 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| RAS 57365, 50-255-LA-3, ASLBP 24-986-01-LA-BD01, NRC-0328 | |
| Download: ML25143A151 (0) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Palisades Nuclear Plant Docket Number:
50-255-LA-3 ASLBP Number:
24-986-01-LA-BD01 Location:
teleconference Date:
Thursday, May 15, 2025 Work Order No.:
NRC-0328 Pages95-168 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1716 14th Street, N.W.
Washington, D.C. 20009 (202) 234-4433
95 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 HOLTEC DECOMMISSIONING : 50-255-LA-3 9
INTERNATIONAL, LLC, AND :
10 HOLTEC PALISADES, LLC : ASLBP No.
11
- 24-986-01-LA-BD01 12 (Palisades Nuclear Plant) :
13
x 14 Thursday, May 15, 2025 15 Video Teleconference 16 17 18 BEFORE:
19 EMILY I. KRAUSE, Chair 20 DR. GARY S. ARNOLD, Administrative Judge 21 DR. ARIELLE J. MILLER, Administrative Judge 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
96 APPEARANCES:
1 On Behalf of the Petitioning Organizations, 2
Beyond Nuclear, Don't Waste Michigan, Michigan Safe 3
Energy Future, Three Mile Island Alert, and Nuclear 4
Energy Information Services:
5 WALLACE L. TAYLOR, ESQ.
6 4403 1st Ave. S.E.
7 Suite 402 8
Cedar Rapids, Iowa 52402 9
wtaylorlaw@aol.com 10 and 11 TERRY J. LODGE, ESQ.
12 316 N. Michigan Street 13 Suite 520 14 Toledo, Ohio 43604-5627 15 tjlodge@yahoo.com 16 17 On Behalf of the Applicants, Holtec 18 Decommissioning International,
- LLC, and Holtec 19 Palisades, LLC:
20 M. STANFORD BLANTON, ESQ.
21 ALAN D. LOVETT, ESQ.
22 THOMAS CASEY, ESQ.
23 BROWN SIMMONS 24 of:
Balch and Bingham LLP 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 1710 Sixth Avenue North 1
Birmingham, Alabama 35203 2
sblanton@balch.com 3
alovett@balch.com 4
tcasey@balch.com 5
6 On Behalf of the Nuclear Regulatory Commission:
7 ANITA GHOSH NABER, ESQ.
8 SAMUEL GELLEN, ESQ.
9 of:
Office of the General Counsel 10 Mail Stop - O-14A44 11 U.S. Nuclear Regulatory Commission 12 Washington, D.C. 20555-0001 13 Anita.ghoshnaber@nrc.gov 14 Samuel.Gellen@nrc.gov 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
98 P-R-O-C-E-E-D-I-N-G-S 1
(10:00 a.m.)
2 CHAIR KRAUSE: Good morning. Today we're 3
hearing oral argument in the license amendment 4
proceeding for Palisades Nuclear Plant, Docket 5
Number 50-255-LA-3.
6 My name is Emily Krause. I'm a legal 7
judge and the Chair of this Board. With me on the 8
bench are Judge Gary Arnold, who has a Ph.D. in 9
nuclear engineering, and Judge Arielle Miller, who has 10 a Ph.D. in mechanical engineering and is a licensed 11 professional engineer in nuclear engineering.
12 I'll begin with a few administrative 13 announcements. We have made a telephone line 14 available for members of the public to access this 15 proceeding. We also have a court reporter online with 16 us today. A transcript of today's conference should 17 be available in the NRC's electronic hearing docket by 18 next week.
19 Because we are conducting this conference 20 using Microsoft Teams, we ask that participants please 21 identify themselves when speaking for the benefit of 22 those on the listen-only line, and to minimize 23 background noise. We also ask that participants leave 24 their cameras on throughout the conference, even 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
99 not speaking.
1 A group of five organizations -- Beyond 2
Nuclear, Don't Waste Michigan, Michigan Safe Energy 3
Future, Three Mile Island Alert, and Nuclear Energy 4
Information
- Services, collectively petitioning 5
organizations -- filed new and amended contentions 6
challenging the NRC staff's draft environmental 7
assessment and draft finding of no significant impact 8
for the Palisades restart project.
9 The purpose of today's prehearing 10 conference is to ensure the Board understands the 11 participants' arguments regarding the timeliness and 12 admissibility of the new and amended contentions.
13 The Board will begin with questions for 14 petitioning organizations, and will then turn to the 15 NRC staff, and then the applicants, in that order.
16 Afer we hear from each participant, we will take a 17 15-minute recess. Upon our return, we will ask any 18 follow-up questions and then hear the participants' 19 closing statements.
20 We will now turn to introductions.
21 Counsel for petitioning organizations, would you 22 please introduce yourselves?
23 MR. LODGE: Yes. I'm Terry Lodge for the 24 petitioning organizations.
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 MR. TAYLOR: And I'm Wally Taylor for the 1
petitioning organizations.
2 CHAIR KRAUSE: Thank you.
3 Counsel for the NRC staff?
4 MS. NABER: Good morning. My name is 5
Anita Ghosh Naber, and I represent the NRC staff.
6 With me here today is my co-counsel, Samuel Gellen.
7 CHAIR KRAUSE: thank you.
8 And counsel for applicants?
9 MR. BLANTON: Good morning, Judge Krause.
10 I'm Stan Blanton for Holtec. I have with me in the 11 room off camera Alan Lovett, Thomas Casey, and Brown 12 Simmons.
13 CHAIR KRAUSE: Thank you very much.
14 Now we'll turn directly into the Board's 15 questions, starting with questions that Judge Arnold 16 has for petitioning organizations.
17 JUDGE ARNOLD: On page 9 of your motion to 18 file amended and new contentions, you address good 19 cause for late filing. Under the heading "A, The 20 Information Upon Which the Filing is Based Was Not 21 Previously Available," you state, quote, "This 22 requirement means the information was not presented in 23 an ER submitted by the applicant."
24 Now, good cause for filing new and amended 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
101 contentions is found in 10 CFR 2.39© where it states, 1
quote, "The information upon which the filing is based 2
was not previously available," with no reference to 3
what document previously available information might 4
be found.
5 So what case law or other support do you 6
have for your assertion that previously available 7
information must have been in an ER and cannot have 8
been presented in some other document?
9 MR. TAYLOR: Wally Taylor. I'll begin 10 with the answer. The NRC staff, and I think Holtec 11 as well, claim that an RAI response supplements the 12 environmental document that Holtec submitted.
13 First of all, as we've said throughout 14 these proceedings, we don't believe that that document 15 is an environmental report. If you look at the 16 requirements for an environmental report in 10 CFR 17 51.45, there are seven items that must be in an ER:
18 a statement of the proposed action; a statement of the 19 purpose and need; three, the affected environment; 20 four, a description of the environmental impacts; 21 five, a discussion of alternatives; six, local 22 short-term uses versus long-term productivity; and, 23 number seven, irreversible commitments of resources.
24 The Holtec document omits items two, five, 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 six, and seven, so there was no ER to begin with.
1 Now, as concerns the RAI responses, the 2
cases that Holtec and the staff -- that we cite to 3
support the idea that RAI responses can supplement an 4
ER, even if there is an ER, don't really support the 5
argument that the staff and Holtec are making, because 6
in all of those cases the statement that the Board or 7
Commission made in those cases was dicta, because the 8
facts either were that a supplemental ER was prepared 9
or the petitioners did not file any amended 10 contentions. So there is nothing that supports the 11 argument that an RAI response can supplement an ER.
12 I would also note that the environmental 13 document that Holtec did submit was submitted with the 14 application for the exemption, not in support of the 15 LAR. In support of the LAR, Holtec asserted that --
16 that a categorical exclusion applied, and so no ER was 17 required. And there's just nothing that really says 18 that an RAI response to a document that was not 19 submitted with the LAR can supplement the LA -- or 20 supplement the ER.
21 So that would be our position on that.
22 JUDGE ARNOLD: On page 75 of the staff 23 answer to your initial petition of contentions, staff 24 informed all parties of a response to RAI letter 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
103 became publicly available on October 14th, 2024, and 1
that contained environmental information from the 2
applicant. My perusal of this letter shows that it 3
addresses both RAI-GEN-2 requesting a purpose and need 4
statement and RAI-ALT-1 requesting an analysis of 5
alternatives.
6 Since this information was available to 7
the public in October 2024, and was used by staff in 8
drafting the environmental assessment, doesn't this 9
information qualify as being previously available?
10 MR. TAYLOR: It was available but was not 11 submitted in connection with the LAR. It was 12 submitted in connection with the exemption request.
13 And if the staff claims now that that was used to 14 prepare the EA, the petitioners had no knowledge that 15 that was what was going to be done until we saw the 16 EA. So the EA is what triggers our time period to 17 submit contentions.
18 MR. LODGE: If I may supplement this 19 answer, the NRC essentially published or, I would say, 20 designated a putative ER. They essentially disclaimed 21 any responsibility for providing and for requiring a 22 provision by Holtec of an environmental report, but 23 essentially said when they announced that they were 24 going to treat that particular section of 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
104 application as an ER that, yeah, we're doing this 1
simply to I guess thwart any particular objections.
2 But, essentially, it was a conditional 3
kind of document, and the framing of it was simply 4
conditional until the -- as Mr. Taylor says, until the 5
moment that the EA was published. And for the RAIs 6
and for the staff notification to say that "Here's the 7
information" we believe was not -- did not comprise 8
the assertive notice because it didn't say that we are 9
committed, as the NRC staff, to the requirement of an 10 environmental report.
11 JUDGE ARNOLD: On page 4-1 of the 12 environmental assessment, is the assessment that the 13 potential impacts from a Palisades return to power 14 would be not significant? Have you, in your 15 contentions, proposed any potential alternative that 16 was not evaluated and that would have an environmental 17 impact of less than not significant?
18 MR. LODGE: Well, we are -- we believe 19 that the measure of the restart is being taken from 20 the wrong place. That is, the position of the staff 21 seems to be that since the plant was operable in May 22 2022 that simply a return to operability means that 23 there are no significant environmental impacts.
24 We believe that the perspective must be 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
105 that the environmental impacts must be seen from the 1
perspective of moving from an inoperable facility to 2
one that is going to have to be
- retooled, 3
recalibrated, and then restarted. And that, 4
furthermore, while arguably in May 2022, before the 5
shutdown, the plant was not contemplating an -- the 6
owner was not contemplating an additional 20-day 7
period -- 20-year period of operation, that that fact 8
was resoundingly affirmed in the EA and in other 9
documents.
10 So we believe that the perspective is --
11 that the NRC staff has taken, and Holtec, are 12 incorrect. They simply want to turn the clock back to 13 the day before shutdown in May of 2022.
14 MR. TAYLOR: I would also add that in our 15 pleadings we did suggest other alternatives, like 16 renewable generation, conservation, and demand 17 response. We also pointed out why the EA's rejection 18 of certain alternatives was not supported by the facts 19 or the obligation of the preparer of the EA to 20 alternatives.
21 JUDGE ARNOLD: Thank you.
22 Before we move on to another subject, let 23 me just ask the NRC staff if they have any comments on 24 what we've heard here concerning the ER and RAI 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 responses as to whether those qualify as previously 1
available information.
2 MR. GELLEN: Good morning, Your Honor.
3 Samuel Gellen for the NRC staff. It's the staff's 4
position that as footnote 31 in CLI-12-13 notates, 5
applicants may supplement an environmental report at 6
any time.
7 10 CFR 51.45(a) provides no specific form 8
that that supplementation must take, and 10 CFR 9
2.309(f)(2) states that contentions must be based on 10 documents or other information available at the time 11 the petition is to be filed, such as the application, 12 supporting safety analysis report, environmental 13 report, or other supporting document filed by an 14 applicant or licensee or otherwise available to 15 petitioner.
16 To that extent, Your Honor, the NRC staff 17 would argue there is no specific importance to the 18 form of the environmental report or an RAI response.
19 The question is what information is available to the 20 petitioner at the time the petition is filed.
21 JUDGE ARNOLD: Okay. Thank you. I'm 22 done.
23 CHAIR KRAUSE: All right. I have a few 24 questions for the petitioning organizations. 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
107 first, just for my own conceptual understanding, you 1
have statements in your motion, but you also have the 2
statement of the contention in the attachment that 3
contains the new and amended contentions. Should we 4
be reading both of those together or do we really 5
focus on the attachment with the contentions?
6 MR. TAYLOR: I think they both go 7
together. We tried to make our motion fairly 8
extensive, so that we would fairly advise the Board of 9
the basis for filing the contentions and why they were 10 timely. And I think that you can take it all 11 together.
12 CHAIR KRAUSE: Okay. I appreciate that.
13 Thank you.
14 The other question I have is -- you know, 15 goes sort of in recognition of the amendments to the 16 National Environmental Policy Act in 2023, where we 17 see, you know, a focus on brief statements, concise 18 statements, time deadlines, and page limits. Does 19 that in any way affect the -- sort of how we look at 20 the -- what's material to the staff's findings when 21 we're talking about an EA and the statement of purpose 22 and need and the alternatives analysis?
23 MR.
LODGE:
We believe that the 24 requirements for the contents of the EA are dictated 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 by the NRC's regulations. And there is an NRC 1
regulation requiring -- or permitting, I should say, 2
allowing -- environmental assessments. And I recall 3
seeing an argument -- I believe it may have been 4
raised by Holtec -- to the effect that while the more 5
recent amendments do allow for the submission of an 6
environmental assessment, that there are not 7
requirements articulated in the NEPA statute as 8
amended.
9 We believe that presently the NRC 10 regulations, even according to the CEQ guidance, that 11 the NRC regulations remain effective and in place.
12 MR. TAYLOR: And I would add that, in my 13 view at least, of the NEPA amendments are that they 14 are more focused on the time limits, page limits, 15 procedural points to perhaps make the procedure more 16 efficient, but I don't think they really change the 17 substance of anything.
18 You're correct that it -- the amendments 19 do mention environmental assessment, which the, you 20 know, NEPA statute did not initially. But, as I 21 recall, the amendments don't propose any particular 22 requirements on EAs or set forth what should be in 23 them or anything. It just -- it just says there can 24 be an EA.
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 CHAIR KRAUSE: Okay. Well, the amendments 1
do go into a description of a brief statement of the 2
purpose and need. So does that change your response 3
at all? You know, how -- if we're looking at a 4
statement to be brief, where is the space within that 5
in which we would be looking at materiality here?
6 MR. TAYLOR: If we may have a moment, Your 7
Honor.
8 Your Honor, I wonder if you could restate 9
your question or rephrase it.
10 CHAIR KRAUSE: So Section 107(d) of NEPA 11 requires a statement of purpose and need that briefly 12 summarizes the underlying purpose and need for the 13 action. And so when we're talking about the brevity 14 of a statement, you know, and this concept of specific 15 enough to inform the public, not too specific, it's 16 brief, where within that are we looking at what would 17 be material to the staff's findings? You know, what 18 does the staff have to meet here for NEPA is my 19 question.
20 MR. LODGE: We don't have any problems 21 with brevity, but we do have problems with content of 22 the purpose and need, because it essentially defines 23 the only viable alternative as the restart of the 24 plant, without providing either in the purpose 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
110 need statement itself or in the EA any explanation or 1
justification for demand for the power.
2 There is simply -- and I would also add, 3
the plant withdrew -- was shut down, withdrew from the 4
grid, after a process of planning and long-term 5
regional grid management kinds of decision-making and 6
meetings. And the plant is not operating now, and the 7
grid seems to be functioning satisfactorily. Those 8
are very material facts that the staff doesn't address 9
at all.
10 MR. TAYLOR: And as we've argued in our 11 pleadings, the purpose and need statement in the EA is 12 essentially the purpose and need statement that was 13 presented by Holtec. And the cases are clear that the 14 agency cannot just blindly accept the applicant's 15 purpose and need statement, and that -- I think that's 16 what was done here.
17 And as Mr. Lodge said, the basic takeaway 18 here is that the only alternative that would satisfy 19 Holtec's self-imposed purpose and need is to restart 20 Palisades rather than looking at other alternatives 21 seriously.
22 CHAIR KRAUSE: Great. Thank you.
23 I will now turn to Judge Miller.
24 JUDGE MILLER: Thank 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
111 Good morning. I am going to start my --
1 I apologize. One second.
2 Apologies. Thank you. My question is for 3
the petitioners for -- related to contention 5. Where 4
in your contention do you discuss specifically what is 5
deficient in the purpose and need statement and how 6
that deficiency affects the impact statement?
7 MR. LODGE: I think we set it out in our 8
motion to amend -- the deficiencies. And the fact 9
that demand was not addressed, the fact that the 10 circumspect limitation of the consideration of 11 alternatives was problematic, we also in reply 12 provided additional criticism of the -- I shouldn't 13 say "criticism." We provided additional evidence that 14 there was an issue of fact that was actually created 15 by Holtec.
16 And, incidentally, I wonder if I may more 17 specifically detail that at this point. It is also, 18 Judge Arnold, I think a -- kind of a supplemental 19 response to your last question to us.
20 In our reply at page 17 -- this was the 21 April 4th filing -- we point out that there was one --
22 at least one major difference between the Holtec RAI 23 response on alternatives and the NRC staff's 24 environmental assessment. Holtec rejected demand side 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 management, which it defined as, quote, "energy 1
conservation and efficiency measures" because the 2
staff -- NRC staff is, quote, "not aware of any cases 3
where demand side management programs have been 4
implemented expressly to replace or offset a large 5
baseload generation station."
6 The NRC staff, however, didn't discuss 7
energy conservation or demand side management within 8
the environmental assessment. We believe that there 9
is -- that we extensively, both in our initial 10 amendment filing, as well as on reply, laid out the 11 problems with purpose and need and the way that it 12 improperly limited the consideration of alternatives.
13 MR. TAYLOR: I would also add that we 14 expressed in our pleadings our concern that the EA 15 just sort of blindly assumed that there would be a 16 need for additional power and that it required Holtec 17 to -- or, sorry, Palisades to restart in order to 18 satisfy this unsupported allegation of the need for 19 additional power that could not be supplied by any 20 other means.
21 And so the purpose and need statement was 22 not supported in the EA by any evidence or data that 23 should have been in there.
24 JUDGE MILLER: Thank 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
113 I'm going to move on to contention 6 1
questions, again, to the petitioner. You mention in 2
your contention 6 that, quote, "The EA dismisses 3
alternate energy sources because there would be 4
insufficient room on the Palisades site for additional 5
structure."
6 It goes on to say that, quote, "No one is 7
suggesting that an alternate energy source would be 8
located on the Palisades site or that it would have to 9
be."
10 How do you see the building of a new 11 facility for an alternate energy source as less -- as 12 less of an environmental impact than restart of an 13 existing facility?
14 MR. TAYLOR: Well, first of all, we took 15 issue with the assumption that any new facility would 16 have to be built on the Palisades site. We think that 17 NEPA requires a broader perspective than that and that 18 the EA needed to look at, in general, you know, 19 wherever they might be and whoever might build them.
20 We weren't saying that Holtec had to build 21 new generation facilities, and, generally, I think 22 that it's pretty obvious that renewable energy would 23 have less environmental impact than a nuclear plant, 24 which would require uranium mining, which 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
114 require something to be done with the radioactive 1
waste.
2 There is radioactive material, like 3
tritium, for example, that comes from nuclear plants, 4
and all of that would have to be considered to have a 5
really appropriate discussion in the EA, and that 6
wasn't done.
7 MR. LODGE: And I would also like to 8
reframe some points I made a few minutes ago, Your 9
Honor, which is that the perspective of evaluating 10 this application we believe is greatly misplaced.
11 The question should be, number one, 12 assuming that the grid is apparently sufficiently 13 integrated and adequate at the present time, measuring 14 that adequacy level against the environmental effects, 15 the environmental impacts, of restarting Palisades.
16 The restart will recommence low-grade 17 emissions of radiation. The accrual of additional 18 tonnage -- considerable tonnage -- depending on how 19 long the plant would continue to operate, of 20 radioactive waste, would generate waste of other 21 types. It would require the use of chemistry as part 22 of its NPDES permit to keep down the invasives that --
23 particularly mollusks from the lake.
24 There are a lot of environmental effects 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
115 that would not happen if the plant is not restarted, 1
and the plant must -- that restart has to be measured 2
against the current status quo.
3 Thank you.
4 JUDGE MILLER: Thank you.
5 Can you point to where in your contention 6
you show that an alternate energy source on a new site 7
is less impactful than the restart of an existing 8
plant? So another way to maybe phrase this would be, 9
where in your contention do you discuss some of the 10 statements that you have just listed out in response 11 to my previous question?
12 MR. LODGE: We did not -- we didn't 13 explicitly make statements of the kind you're asking 14 for, but we believe that an evaluation of alternatives 15 would require an evaluation of the situation, the 16 current status, of the existing operable grid, and 17 that there have been probably increments of 18 alternative energy sources such as solar and wind in 19 the intervening three years.
20 MR. TAYLOR: And I would just point out in 21 our reply brief we went into some detail about how we 22 view the admissibility standards for contentions. And 23 I think that, as we've said over the years, perhaps 24 the Commission has gotten away from what the purpose 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 of the admissibility standard should be. I think, 1
with all due respect, you are sort of asking us to 2
prove our case at this point when that's not the 3
standard for admissibility.
4 JUDGE MILLER: My next question: can you 5
-- and it aligns a little bit with the question that 6
Judge Arnold had asked you earlier. But where in your 7
contention do you actually list out those examples of 8
alternative energy sources? Or which alternative 9
energy sources do you contend were not considered and 10 should have been and how that could have impacted the 11 assessment of the environmental impact.
12 MR. LODGE: Your Honor, I wonder if we may 13 take a minute, and I -- so I can take a look at our 14 initial filing and respond effectively, please. Just 15 one minute.
16 (Pause.)
17 MR. LODGE: Your Honor, at pages 32 and --
18 32 through 34, I think, of our -- the lengthy 19 document, the 37-pager that was filed on March 3rd, we 20 discussed that. Also, we had -- the petitioning 21 organizations, or at least some of them, had filed 22 written comments during the scoping session and had 23 actually made oral comments at one or more public 24 meetings that were convened.
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117 And our understanding of NEPA is that the 1
public -- the public may suggest or propose 2
alternatives. The amount of detail given is not 3
particularly set forth in the regulations, but the 4
case law appears to say that the -- if the public 5
suggests scrutiny of alternatives, that it is up to 6
the staff of the agency to conduct that kind of 7
investigation.
8 MR. TAYLOR: And I would also add, more 9
specifically on those pages that Mr. Lodge mentioned 10 of our initial amended contentions, we cited and 11 attached to the document the -- an expert declaration 12 of Dr. Mark Jacobson, who is a recognized expert on 13 energy solutions, and he makes it clear that there are 14 clean and renewable energy sources, that we don't have 15 to rely on nuclear.
16 JUDGE MILLER: Okay. Thank you.
17 My last question: how do you see where 18 the line is on selecting alternative sources to 19 evaluate? When we're looking at this, how would --
20 how do you envision where that line is going to be as 21 far as what the sufficient amount of alternative 22 energy is to have considered and what they are and 23 when it's sufficient to stop the analysis.
24 MR. TAYLOR: I would say that any 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 alternative energy source that is available now or 1
clearly would be available in the very near future 2
would be appropriate. Other sources -- I can think of 3
maybe hydrogen -- might be a little more hypothetical 4
at this point, and wouldn't necessarily be required to 5
be considered.
6 So there is no really black and white line 7
I guess, but certainly if they sourced -- you know, 8
like wind and solar, for example, would be available 9
now, which it is, I think that should certainly be 10 considered.
11 MR. LODGE: Also, of course, the agency 12 has the obligation of taking a hard look at the 13 alternatives that are investigated and scrutinized.
14 And we pretty much found in the EA that everything was 15 reduced to the measure of whether or not the 16 environmental disruption would be greater by pursuing 17 the alternative than by restart.
18 I would point out that the restart is the 19 equivalent of an ongoing planning process right now 20 where Holtec is still in the phase of identifying the 21 need or the lack of need for replacement of 22 significant components, such as, among other things, 23 the steam generators.
24 So the environmental effects of 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
119 restart are not all known and quantified, and I would 1
point out that the -- the refusal to quantify the 2
carbon or other metrics of alternative energy sources 3
was not explained anywhere in EA -- in the EA. It 4
simply was the conclusory staff statements that any of 5
that sort of stuff would be more than Holtec is having 6
to undergo or cause in the direction of restarting the 7
plant.
8 JUDGE MILLER: Thank you.
9 I have no more questions.
10 CHAIR KRAUSE: Okay. Next we will turn to 11 the NRC staff, and Judge Arnold will begin with his 12 questions.
13 JUDGE ARNOLD: I have been trying to 14 determine what exactly an environmental assessment is 15 used for. So looking at 10 CFR 51.31 titled 16 "Determinations Based Upon Environmental Assessment,"
17 I found the sentence, "Upon completion of an 18 environmental assessment, the appropriate NRC staff 19 director will determine whether to prepare an 20 environmental impact statement or a finding of no 21 significant impact on the proposed action."
22 I couldn't find any other relevant use of 23 the environmental assessment. Would you agree that 24 this is the primary use of the environmental 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
120 assessment for Palisades?
1 MS. NABER: Your Honor, this is Anita 2
Ghosh Naber for the staff. Yes. The purpose of an 3
environmental assessment is -- it's essentially a 4
determination document to see if there are significant 5
impacts. And, if there are, then the staff would 6
proceed to prepare an environmental impact statement.
7 But if there are no significant impacts, such as for 8
Palisades, then the staff would prepare a finding of 9
no significant impact, or FONSI.
10 JUDGE ARNOLD: Okay. Are there any other 11 significant decisions that are made based upon the 12 environmental assessment?
13 MS. NABER: No. The only decision that 14 the staff makes is whether to prepare a FONSI or an 15 EIS.
16 JUDGE ARNOLD: Okay. On page 4-1 of the 17 environmental assessment, I find the following 18 sentences. "The NRC staff concludes that the 19 potential impacts from both the preparations for and 20 the resumption of power operations, and from the 21 return to decommissioning at a future time at 22 Palisades, would be not significant for each 23 potentially affected environmental resource area.
24 Additionally, there were no significant cumulative 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 effects identified."
1 Would it be fair to say, then, you know, 2
in the normal NEPA vocabulary that the environmental 3
impacts of restarting Palisades are small?
4 MS. NABER: The determination level that 5
the staff used in the environmental assessment was not 6
significant. I think in Section 3 the staff did 7
explain, you know, to the extent that it looks at the 8
2006 SEIS, the 2006 SEIS did use a different, you 9
know, level of determination and used small, moderate, 10 and large.
11 And so, you know, those impact levels were 12 taken into consideration by the staff in its 13 determination of not significant, but effectively they 14 are similar.
15 JUDGE ARNOLD: Okay. Although a purpose 16 and need statement is a required part of an 17 environmental assessment, in this particular case, 18 could the NRC staff determine that the environmental 19 impacts of restarting Palisades were small without a 20 purpose and need statement? I'm just -- I'm trying to 21 determine whether the purpose and need statement 22 actually supports the decision you made.
23 MS. NABER: Can you repeat the question, 24 Your Honor?
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122 JUDGE ARNOLD: Okay. I know that a 1
purpose and need statement is a required part of an 2
environmental assessment. But does that purpose and 3
need factor into the determination of the 4
environmental impacts of restarting Palisades?
5 MS. NABER: Purpose and need statement is 6
what the staff uses to determine a reasonable range of 7
alternatives. That's what the staff used it -- you 8
know, used the purpose and need statement for here in 9
the environmental assessment. And, you know, to that 10 extent, that the staff considered alternatives, yes, 11 it did factor into its findings for the restart of 12 Palisades.
13 JUDGE ARNOLD: Okay. Well, that was my 14 next question. In the case of the Palisades, you 15 determined that the impacts were essentially all 16 small. When you evaluate the -- that the impacts are 17 small, how does the alternatives analysis directly 18 support the purpose of the environmental assessment?
19 I mean, were you looking for something that had 20 smaller than small impacts?
21 MS. NABER: I think that -- the staff was 22 looking for whether there are significant impacts in 23 determining whether to prepare a FONSI or an EIS, 24 right? And when the staff looks at environmental 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 impacts, 10 CFR 51.30 is the requirement for 1
environmental assessments, and it requires a
2 discussion of the environmental impacts of the action 3
and the alternative.
4 So the staff looked at all of those 5
impacts in, you know, coming up with its determination 6
of not significant and to support the finding of no 7
significant impact for this project.
8 JUDGE ARNOLD: I'm just having a very hard 9
time understanding the relevance of an alternative 10 analysis when the impacts of the project are small.
11 I mean, is there any relevance if you can't -- if 12 there is no such thing as an impact smaller than 13 small?
14 MS. NABER: Well, I think the purpose of 15 the alternatives analysis is to determine if there is 16 anything else or if there is an environmentally 17 preferable alternative, you know, not just that it's 18 not significant. But -- so that's what the staff was 19 looking at.
20 JUDGE ARNOLD: Something I hear often in 21 the NEPA arena is that the need for rigor and depth of 22 an analysis is subject to the rule of reason. When, 23 as in the case of the Palisades, you've determined 24 that the impacts are small, what would the rule of 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
124 reason say about the need for rigor and depth in the 1
impacts analysis?
2 MS. NABER: I think, Your Honor, the 3
Commission, in CLI-10-18, it essentially was talking 4
about a comparison of what should be in an EIS versus 5
an EA. And it's -- you know, the Commission was 6
saying that the staff in an EA would give full and 7
meaningful consideration to all reasonable 8
alternatives, right?
9 And they were saying that essentially the 10 difference would be in the depths of consideration and 11 the level of detail. So while the staff would still 12 do a rigorous assessment in their EA, the level of 13 detail and depth of discussion would be less.
14 JUDGE ARNOLD: That was CLI-10 dash what?
15 MS. NABER: 10-18.
16 JUDGE ARNOLD: 18. Thank you. I'm done.
17 CHAIR KRAUSE: All right. I'll turn to 18 questions for the staff, and mine are going to focus 19 first on timeliness. And I'll just start with 20 Section 2.309(f)(2), which allows for the amendment of 21
-- or acknowledges that environmental contentions can 22 be amended. But it lists that they may be amended 23 based on the staff's environmental documents. It 24 doesn't mention responses to RAIs.
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125 And then, also, in the Commission's 1
McGuire/Catawba decision, which is CLI-02-28, there 2
was this acknowledgement on page 385 of that decision 3
that there is no point in exclusively focusing on 4
applicant's responses to RAIs when the staff's draft 5
environmental document provides a more recent and 6
often more thorough discussion of relevant issues.
7 So since it's the NRC's responsibility to 8
comply with NEPA, should we be looking at responses to 9
RAIs as a trigger for an environmental contention?
10 MR. GELLEN: Samuel Gellen for the NRC 11 staff, Your Honor. To the extent that new information 12 is presented in the draft environmental assessment for 13 the first time, was not available in the public record 14 before that draft environmental assessment, then the 15 trigger point for that new information would be the 16 draft environmental assessment.
17
- However, to the extent that the 18 information is available to the public before the 19 environmental assessment is published, it's the 20 obligation of the petitioner to raise those 21 contentions at the earliest possible opportunity, even 22 if that comes as a result of supplementation by the 23 petitioner or by -- sorry, by the applicant.
24 CHAIR KRAUSE:
And the point of 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
126 supplementation I think, as early as -- or as recent 1
as I know, in the Diablo Canyon decision, which the 2
staff cites and we cited in our -- in our order 3
scheduling this oral argument, which is CLI-12-13, at 4
that time there wasn't really a notion that a response 5
to an RAI would supplement an environmental report.
6 So is the staff's position that a response 7
to an RAI supplements an environmental report?
8 MR. GELLEN: Your Honor, there is -- there 9
is many forms supplementation to an environmental 10 report could take, and it's our position that an RAI 11 was -- RAI response is one of the forms that 12 supplementation of an environmental report could take.
13 CHAIR KRAUSE: So it doesn't require an 14 applicant to say, "Here is our supplement to our 15 environmental report"?
16 MR. GELLEN: That's correct, Your Honor.
17 CHAIR KRAUSE: All right. Another 18 question for you on timeliness. Because the EA is for 19 the restart project as a whole, should -- does that or 20 should that factor into our assessment of timeliness 21 here? And then, specifically, I am also pointing to 22 the fact that the EA covers future actions, future 23 license amendment requests even.
24 MR. GELLEN: The draft environmental 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 assessment certainly provides a trigger point for 1
environmental contentions as it relates to the 2
Palisades restart process. I'm sorry, Your Honor.
3 I'm not sure I totally understand.
4 CHAIR KRAUSE: So, typically, in at least 5
the cases that -- as far as I know, we're talking 6
about an environmental document that covers the scope 7
of the proceeding that is -- you know, that has the 8
hearing opportunity.
9 And this hearing opportunity is for four 10 license amendments specifically, but the draft EA 11 covers those and more and future actions. So should 12 that factor into our timeliness assessment?
13 MR. GELLEN: Your Honor, I believe, to the 14 extent that new information is presented in the draft 15 environmental assessment that was not previously 16 available to either the public -- to the public, it 17 would provide the trigger point for new environmental 18 contentions for the -- for the Palisades restart 19 process.
20 But for -- for contentions that are 21 outside the scope of environmental contentions, for 22 example, safety contentions, the relevant trigger 23 point would come when those applications arrive.
24 CHAIR KRAUSE: So if another application 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 comes in for Palisades restart, are petitioners out of 1
luck for environmental contentions?
2 MR. GELLEN: To the extent --
3 MS. NABER: Your Honor, I --
4 MR. GELLEN: -- those environment --
5 MS. NABER: Go ahead.
6 MR. GELLEN: To the extent those 7
environmental contentions would rely on information 8
that was previously available in the public record, 9
the obligation to bring those environmental 10 contentions would have been triggered earlier.
11 CHAIR KRAUSE: I guess I'm having a hard 12 time determining when that would have occurred, if 13 it's -- if we're talking about the four license 14 amendment proceedings now.
15 But another question for you, is the 16 agreement that you all came to on the deadline for 17 environmental contentions based on the draft EA and 18 draft FONSI impact the timeliness assessment?
19 MR. GELLEN: Your Honor, the agreement 20 about the filing deadline would get to the 309(c)(1),
21 the -- in good time requirement in 10 CFR 309.
22 MS. NABER: Your Honor, this is Anita 23 Ghosh Naber for the staff, if I could supplement.
24 CHAIR KRAUSE: Please.
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129 MS. NABER: So the agreement that we came 1
to was that any new or materially different 2
information on the environmental assessment would be 3
subject to the time period that we've set for new and 4
amended contentions.
5 But to the extent that information was 6
available previously through the RAI response, that 7
would have been untimely, and that would have been 8
governed by the Board's scheduling order setting 9
30 days for the filing of new and amended contentions.
10 CHAIR KRAUSE: A question that -- similar 11 to the question I asked the petitioners, based on the 12 2023 NEPA amendments, and the, you know, focus on 13 brevity and, you know, kind of distinguishing just in 14 general between what's included in an EIS and an EA, 15 how does that factor into what we are considering for 16 what's material to what the staff needs to find or 17 needs to do to meet its NEPA obligation?
18 MS. NABER: Your Honor, this is Anita 19 Ghosh Naber for the staff.
20 I think that, you know, the remedy that's 21 mentioned in the FRA Amendments, it's consistent with 22 NRC regulations for the requirements for contents for 23 an environmental assessment which are outlined in 10 24 CFR 51.30(a)(1).
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130 And you know, our own NRC regulations 1
require a brief discussion of the need for the action, 2
a brief discussion of alternatives.
3 So, I think they go together and alongside 4
Commission case law which I previously mentioned in 5
response to Judge Arnold's question in Pa'ina and 6
CLI-10-18, the Commission stated that NEA should 7
consider the full range of reasonable alternatives.
8 But the difference would be in the level 9
of detail and depth of discussion.
10 CHAIR KRAUSE: Thank you.
11 And I also have -- this is actually 12 pertains to Contention 2 and the staff raises a 13 collateral estoppel argument regarding impacts from 14 seismic issues on the independent spent fuel storage 15 installation storage pad.
16 And the staff says that all of those 17 factors of collateral estoppel are met, including 18 whether the issue is actually litigated and points to 19 a Director's decision.
20 So, I guess I wanted to ask, can we 21 consider that issue to then actually litigate it when 22 the Director's decision proceeding is quite different 23 from an adjudicatory proceeding?
24 MS. NABER: Yes, Your Honor, I think 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
131 you know, here, the Board can consider.
1 The Director's decision effectively became 2
the decision of the Commission when -- because it was 3
not appealed.
4 CHAIR KRAUSE: Is there a right to appeal 5
a Director's decision?
6 MS. NABER: Well, I think the Commission 7
has the authority to take up the Director's decision.
8 CHAIR KRAUSE: They do have sua sponte 9
authority, you're right.
10 I guess I'd be interested about the 11 appellant rights.
12 One additional question, in terms of --
13 this also goes to Contention 2 and I guess this is --
14 the wording in the staff's answer that I guess I just 15 wanted to clarify. It's about the timeliness of the 16 climate change discussion in Contention 2.
17 And I guess how that relates to the 18 staff's concession in original Contention 7 where the 19 staff agreed that, you know, climate changed needed to 20 be looked at. And so, I guess that's my -- the first 21 part of my question, how, you know, how does that kind 22 of -- is there a conflict there?
23 And then, just the wording of -- in the 24 staff's answer on page 24 about something that could 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 have been used to raise contentions as early as 2010.
1 And so, I guess I just wanted to get some clarity 2
there.
3 Is the staff arguing that contention 4
should have been raised in 2010 when we're looking at 5
a license amendment proceeding that started, you know, 6
within the past year?
7 MR. GELLEN: Your Honor, can I have a 8
moment to confer with the staff?
9 CHAIR KRAUSE: Sure.
10 MR. GELLEN: Your Honor, that wording was 11 intended by the staff to only be relevant to our 12 statement that climate change may have safety 13 implications.
14 And to the extent that it should have been 15 challenged previously, it was previously available for 16 this proceeding.
17 CHAIR KRAUSE: And I guess I'm curious, do 18 you have an explanation for the used to raise 19 contentions as early as 2010, what proceeding would 20 those contentions have been raised in?
21 MR. GELLEN: Our intent by that statement 22 was only to say that that information was available in 23 2010 and could have been used and raised in this 24 proceeding. I'm not sure what other proceeding 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
133 could have been raised in.
1 CHAIR KRAUSE: Okay, thank you.
2 We'll turn now to Judge Miller.
3 JUDGE MILLER: Thank you.
4 My first question for the staff relates to 5
Contention 5.
6 What standard does the staff apply to make 7
a determination of impact on the environment in an EA 8
as it relates to the purpose and need statement?
9 MS. NABER: Your Honor, I'm -- can you 10 repeat the question?
11 JUDGE MILLER: Yes, what standard does the 12 staff apply to make a determination on the impact of 13 the environment as it relates to the purpose and need 14 statement?
15 So, basically, what standard or criteria 16 does the staff use in making a determination or using 17 the purpose and need statement to make that 18 determination on the environmental impact?
19 MS. NABER: Okay, Your Honor, so the 20 purpose and need statement is used to determine a 21 reasonable range of alternatives.
22 The alternative analysis is required by 23 NEPA. And in 51.30, 10 CFR 51.30(a)(1), the 24 regulation requires that the staff include a brief 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 discussion of the environmental impact and of the 1
action and also the alternative.
2 So, the purpose and need statement is, you 3
- know, specifically relates to the alternative 4
analysis.
5 So, in the alternative analysis, the staff 6
eventually does a comparison of the proposed action to 7
the alternative.
8 And you know, in that respect, you know, 9
the staff did come up with a not significant impact.
10 Does that address your question?
11 JUDGE MILLER: It does.
12 Following up on that, what standard does 13 the staff apply to develop a purpose and need 14 statement for an EA?
15 MS.
NABER:
I think it's under 16 well-established federal and Commission case law. So, 17 staff will -- because it's not the sponsor of the 18 project, it'll accord substantial weight to the polls 19 of the applicant and the purpose and need of the 20 applicant consistent with Commission case law and 21 Commission policy as well.
22 JUDGE MILLER: Okay, so, the staff 23 provides -- or gives, if I'm hearing you correctly, 24 substantial weight to what the applicant declares 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
135 the purpose and need. Is that all the staff does or 1
is there additional analysis and development that goes 2
into that? And if so, how or what guides the staff in 3
making that final purpose and need statement that goes 4
into the EA?
5 MS. NABER: So, the staff will look at the 6
applicant's purpose and need. And the, you know, the 7
factual background and information that's submitted by 8
the applicant in support of that purpose and need and 9
evaluate that.
10 And that's what the staff did for the 11 Palisades restart environmental assessment.
12 There was the purpose and need section in 13 1.2 that includes the NRC's purpose and need statement 14 and then, there's also further discussion of the need 15 for the project.
16 JUDGE MILLER: Thank you.
17 Just to make sure I'm understanding, is 18 there, how do I want to put this, is this just a 19 typical practice of the staff or is there either, you 20 know, internal or external guidance that one could 21 look at to know how to do a purpose and need 22 statement? And what should or shouldn't be in there?
23 MS. NABER: I would say that, again, it's 24 well established under federal and Commission case law 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 in CLI-12-5, and that was Seabrook, the Commission 1
upheld an EIS that relied on the purpose and need 2
statement which was based on the applicant's goal to 3
proved baseload power.
4 In a 2003 PRM denial, the Commission 5
stated that it would accord substantial weight to a 6
properly supported purpose and need statement provided 7
by the applicant.
8 So, there's, you know, a lot of case law 9
and Commission policy that, you know, supports what 10 the staff does here. And it -- the staff doesn't 11 adopt it, the staff does do its individual, you know, 12 its own analysis of it.
13 But it does, you know, accord substantial 14 weight which is consistent with case law at the 15 Commission level and at the federal level.
16 JUDGE MILLER: Thank you.
17 I'd like to move on to Contention 6 and my 18 questions are going to be fairly similar to the ones 19 that I had for Contention 5.
20 So, first, what standard does the staff 21 apply to make a determination on the impact to the 22 environment as it relates to the alternatives 23 analysis?
24 MS. NABER: And so my answer I think 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
137 similar. The staff does a comparison of the 1
alternatives against the proposed action and to 2
determine the significance level there.
3 And for Palisades, there were no 4
environmentally preferable alternatives.
5 JUDGE MILLER: How does the staff make 6
that determination, what is and is not a viable 7
alternative from an environmental perspective?
8 MS. NABER: So, the draft EA states that 9
it was influenced by Section 102(2)(c)(iii) of NEPA 10 which requires that the an agency discuss a reasonable 11 range of alternatives that are technically and 12 economically feasible and that would meet the purpose 13 and need of the action.
14 So, that's what the staff considered in 15 its alternative analysis. So, it was looking at 16 alternatives that are technically and economically 17 feasible and meet the purpose and need of the action.
18 JUDGE MILLER: Were there any criteria 19 that are used and is it publically available to see 20 that criteria to weight the environmental impacts, 21 assuming, again, for that sake of argument that 22 they're economically feasible and align with the 23 purpose and need as far as what the applicant 24 requires, right?
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138 So, now, comparing them just from an 1
environmental impact aspect, is there a standard 2
that's applied to evaluate that such as like carbon 3
emission, footprint, impact to greenfield, just as 4
examples, not saying that those are those, but --
5 MS. NABER: Are you asking if there was 6
guidance documents or I'm not sure I understand.
7 JUDGE MILLER: If there are guidance 8
documents or how -- what I'm trying to understand, and 9
to help me understand is, in looking at the 10 alternatives analysis and weighing the Petitioner's 11 argument, how does one determine what is a deep enough 12 evaluation of those alternatives as it's discussed in 13 comparison?
14 So, I'm trying to understand if there a 15 guidance document or someway that, you know, how would 16 one recommend knowing where that line is to make that 17 determination and say that this was sufficient or this 18 was insufficient in making that comparison?
19 MS. NABER: So, the staff has guidance in 20 NUREG-1555 which discussed an alternative, you know, 21 what they would consider an alternative analysis.
22 And as I explained before, you know, the 23 standard for EAs is less than an EIS. You know, it 24 would be less than the depth and the level of detail 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
139 for an EA.
1 But ultimately, you know, it was the 2
Petitioner's responsibility to, you know, demonstrate 3
some sort of genuine dispute or a factual basis for 4
their assertions that there was some sort deficiency 5
and they have not done so here.
6 JUDGE MILLER: Thank you, I have no more 7
questions.
8 CHAIR KRAUSE: Okay.
9 So, now, we'll turn to the Applicants and 10 I'll start by asking Judge Arnold if he has any 11 questions for Applicants.
12 JUDGE ARNOLD: I have no questions for the 13 Applicants.
14 CHAIR KRAUSE: Okay, thank you.
15 So, I'll turn to my questions. Some of 16 them are similar to what I've asked of the others.
17 And this goes to timeliness, and again, 18 because the EA is based on the recert project as a 19 whole, does that or should that factor into our 20 timeliness analysis?
21 MR. BLANTON: Stan Blanton for the 22 Applicants, Your Honor.
23 I don't think so. I think you're 24 timeliness analysis is based on whether information 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 was available at the time that the original 1
contentions were filed or, as in the Federal Register 2
-- as the Federal Register Notice requires 30 days 3
after the new information became available, the 4
Petitioners were required to supplement their new or 5
amended contentions.
6 It's the -- if the action -- if additional 7
actions are requested as part of the restart analysis, 8
which most future actions are not within the scope of 9
this proceeding, but if future actions are requested 10 and new information about those actions becomes 11 available, then Petitioners would be able to file new 12 contentions at that time.
13 But to the extent the information was 14 available prior to 30 days, prior to the time they 15 filed the contentions on these four license requests 16
-- license amendment requests, that's the timeliness 17 issue we need to be focused on, not some future 18 action.
19 CHAIR KRAUSE: All right, thank you.
20 I -- what I'm trying to kind of, you know, 21 sort of finger on is, because this is a first of a 22 kind proceeding, is there a fairness argument to be 23 made in terms of timeliness and when the trigger is 24 for environmental contentions?
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141 Because we're looking at NEPA being a 1
staff obligation, and Because, you know, we started 2
with categorical exclusion, the staff determined that 3
it would prepare an EA. It was going to look at the 4
Applicants' environment document as an environmental 5
report.
6 There were responses to requests for 7
additional information that we don't -- that I think 8
there's some question as to whether that supplements 9
the environmental report.
10 And then, we have a potential for future 11 proceedings
- where, technically, unless there's 12 something new from what happened now, a Petitioner 13 might not be able to raise contentions on this EA 14 because it covers a broader spectrum of what might be 15 available for a hearing opportunity.
16 So, I guess that's where I'm going, do you 17 have any thoughts? Does that change your response or 18 not?
19 MR. BLANTON: I don't think so, but let me 20 just elaborate.
21 First of
- all, the environmental 22 information was submitted to support our request for 23 a categorical exclusion for the LARs. The LARs all 24 reference that new and significant analysis that is an 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
142 analysis based on whether there are new and 1
significant information from the SEIS for the license 2
renewal.
3 So, it was clear that that environmental 4
information was supporting our license amendment 5
request.
6 The RAI responses all also cite the -- or 7
reference the LARs.
8 So, there is plenty of information that --
9 and was plenty of information in the record that ties 10 that environmental information to these LARs that are 11 within the scope of this proceeding.
12 We looked at the cases referenced in the 13
-- or the case referenced in your order on trigger 14 point, and I'll just quote from the Diablo Canyon 15 case, the intervener retains the responsibility to 16 raise new or amended contentions as new information 17 becomes available if they wish to litigate those 18 issues.
19 I think that answers the question on when 20 the trigger point in this case arose as when that 21 environmental information became available, the 22 Petitioners had the opportunity and the obligation to 23 amend those contentions if they were going to be based 24 on that RAI response.
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143 CHAIR KRAUSE: The same question that I 1
asked the staff, does the agreement that you all came 2
to for the deadline for these new and amended 3
contentions based on the EA factor into our timeliness 4
analysis?
5 MR. BLANTON: Not as to the information 6
that the contentions are based on because those -- all 7
that information was available back in October of '24.
8 Now, if the contention were based on new 9
information in the environmental assessment, then the 10 agreed on schedule would apply.
11 But the Petitioners have not based their 12 contentions on new information that first became 13 available in the environmental assessment. It's all 14 based on information that at the latest was available 15 in October of 2024. And in some cases, years before 16 that.
17 CHAIR KRAUSE: Okay, thank you.
18 And then, a similar question that I asked 19 earlier, or the same question I asked Petitioners and 20 the staff, a sort of a broad question based on the 21 2023 NEPA amendments and, you know, I know you touched 22 in your answer, but given the amendments and that the 23 focus on, you know, being concise, the brevity of a 24 purpose and needs statement, the page limits, the 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
144 deadlines, you know, how much of that factors into 1
what the materiality, you know, requirement for 2
contentions and the -- and specifically, what's 3
material to the staff's findings to satisfy NEPA, how 4
much for a challenge to the purpose and needs 5
statement and the alternatives analysis?
6 MR. BLANTON: Well, I think, certainly, to 7
the extent the Petitioners' contentions are based on 8
the granularity or the amount of detail in the 9
alternatives analysis or in the impact analysis, those 10 admonitions in the NEPA amendment certainly guide the 11 Board in evaluating those, but it's not required.
12 The environmental assessment's not 13 required to go into great detail or in granularity --
14 granular fashion and those alternatives analysis or on 15 the purpose and needs statement.
16 I think, as NRC has pointed out, that was 17
-- those amendments are really consistent with what 18 NRC regulations already require.
19 And so, the -- I think the Petitioners' 20 contentions need to be viewed in the light of the fact 21 that the NEPA statute has now been amended to 22 articulate that the environmental assessment, it has 23 to -- it doesn't have to be voluminous in detail. It 24 can be brief and concise and to the point.
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145 CHAIR KRAUSE: Okay, thank you.
1 MR. BLANTON: Does that answer your 2
question?
3 CHAIR KRAUSE: It does, thank you.
4 And we'll turn to Judge Miller for her 5
questions.
6 JUDGE MILLER: I have no questions for the 7
Applicant.
8 CHAIR KRAUSE: All right, so we'll now 9
take a 15 minute recess. If the participants, if 10 you'd please stay connected, but please remember to 11 mute your microphone and turn off your camera.
12 And we'll return, say, 11:30 Eastern.
13 (Whereupon, the above-entitled matter went 14 off the record at 11:18 a.m. and resumed at 11:30 15 a.m.)
16 CHAIR KRAUSE: Okay, let's go on the 17 record.
18 Do my colleagues have any additional 19 questions? Judge Arnold?
20 JUDGE ARNOLD: No questions.
21 CHAIR KRAUSE: Judge Miller?
22 JUDGE MILLER: No.
23 CHAIR KRAUSE: And I don't have any 24 further questions. So, we'll now turn to closing 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 statements.
1 And first, a brief word on the timing 2
system we'll be using for today's closing statements.
3 Participants will first see a screen at 4
the bottom of the Board's video and then with a title 5
slide. The slide will then read closing.
6 The next slide to appear will indicate 7
that there is one minute remaining.
8 After that time, the slide will display 9
time expired.
10 Counsel for Petitioning Organizations, 11 before you begin your ten minute closing statement, do 12 you plan to reserve any time for rebuttal?
13 MR. LODGE: We'd like to reserve three 14 minutes, Your Honor.
15 CHAIR KRAUSE: Okay, great.
16 So, you have seven minutes for closing and 17 three minutes for rebuttal.
18 You may begin.
19 MR. LODGE: Thank you.
20 We believe that we raised -- we amended 21 contentions or supplemented the contentions in a 22 manner that conforms with the timeliness rules as well 23 as the content rules.
24 I wish to point out, among other 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
147 that we are -- we have been consistently arguing that 1
what is required here is not nearly an environmental 2
assessment, as difficult as it was apparently to have 3
the staff understand that some sort of legal document 4
was required, but that we have been maintaining 5
consistently from the beginning that a full-blown 6
environmental impact statement is required.
7 And thus, we looked upon the environmental 8
assessment discussion that has taken place, that it's 9
basically a rough cut or that the alternatives 10 analysis need not be as thorough or complete as 11 somewhat misleading because we think that the EIS 12 should have been performed which would have certainly 13 obligated the staff to do a much more in depth 14 analysis of alternatives.
15 I'd like to point out also that we made --
16 I think we did it in two places, but I haven't looked 17 for the second one -- but in our reply, at page 9, 18 that would be the April 4th reply, that we pointed out 19 that the seismic standards that are required for an 20 operating nuclear plant were not mentioned.
21 We found in the EI, there is no discussion 22 of earthquake or seismic, that those words actually --
23 I think seismic appeared in a couple places, but it 24 was in the context of something that was irrelevant 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
148 actually exposing any seismic consideration of the 1
Palisades site.
2 That is particularly important because 3
there is, of course, going to be additional 4
radioactive waste stored there. And in fact, there's 5
going to be, from what we could tell in the EAA, they 6
plan to do concrete storage pads and there is several 7
decades worth of objection in the form of an NRC 8
staffer who has pointed out repeatedly while he worked 9
at the NRC that there were seismic problems in terms 10 of an inability to meet the NRC standards for the 11 stability of the pads.
12 I realize there's a collateral estoppel 13 article and we oppose that and would certainly 14 appreciate the opportunity to brief the collateral 15 estoppel effective a Director's decision.
16 Also, I'd like to point out the panel 17 that, in our amendment, we essentially folded the 18 Contention 7, pardon me, climate change information 19 from the EA into our supplementation of Contention 4.
20 So, Contention 7
effectively has 21 disappeared and then consolidated, if you will, into 22 Contention Number 4.
23 I want to take one moment and talk with 24 co-counsel on one point, please.
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149 CHAIR KRAUSE: Go ahead.
1 MR. LODGE: Yes, also, I'd like to point 2
out that in our briefing, we provided several examples 3
of events or facilities -- additional facilities that 4
make the environmental analysis of Palisades into 5
something that we believe must be addressed with an 6
EIS.
7 In particular, there's going to be a new 8
radioactive waste building of some sort that was very 9
poorly defined and described.
10 Also, there, as we -- as the panel, I'm 11 sure, is aware, there's the ongoing steam generator 12 controversy as to what engineering -- engineered 13 changes may be made to that as well as, of course, the 14 heat exchanger issue that we raised in our initial and 15 later filings.
16 The panel is very concerned about the 17 purpose and need statement, timeliness, as well as the 18 alternatives discussion timeliness.
19 We believe, and judging from what Judge 20 Krause was saying -- was asking, we believed that 21 there are concerns as to whether the fact that there's 22 a putative and not an actual ER that was being 23 referred to in the RAIs should have led the public to 24 believe that those RAI responses were anything 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
150 gratuitous since the ER itself was a conditional ER, 1
that I pointed out earlier, the fact that it was --
2 that there are RAIs generated by Holtec directed at 3
the putative ER.
4 We believe that that was certainly 5
essentially saying, well, if this is a conditional 6
environmental report, then our conditional response to 7
the purpose and need and alternatives discussion is as 8
follows.
9 Again, as Judge Krause pointed out in her 10 inquiries or was alluding to on her inquiries, the 11 compilation of the actual environmental document is 12 the responsibility, not of Holtec, but of the staff.
13 So, we believe that we properly amended 14 and supplemented and that those contentions as amended 15 and supplemented to be admitted for hearing.
16 And I would particularly remind the Board 17 of our discussion at the beginning of our reply 18 memorandum about the actual standards for contention 19 admissibility.
20 For way too often, the standard seems to 21 morph into having to provide proof on the merits as 22 though we were at the very outset of the proceeding 23 facing motions for summary disposition.
24 And that is not what the law says. 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
151 not what the Atomic Energy Act requires. And it's not 1
the obligation of this panel at this point in the 2
proceeding to go into the actual merits pros and cons, 3
calling balls and strikes.
4 You are not here at this moment to 5
adjudicate the truth of falsity or the evidence. You 6
are here to, at this point, to procedurally decide 7
whether or not we have articulated sufficient facts 8
for there to be admission of contentions.
9 Thank you.
10 CHAIR KRAUSE: Thank you, Counsel.
11 Counsel for the NRC staff, you may begin 12 your closing statement. You have ten minutes.
13 MS. NABER: Thank you, Your Honor.
14 Today we've heard argument from Counsel 15 from the Petitioning Organization as to why they 16 believe their new and amended contentions should be 17 admitted.
18 But as discussed here today and in our 19
- answer, the staff's position is that Amended 20 Contentions 2, 4, 5, and 6, as well as new Contention 21 8 should be denied.
22 Petitioners have raised several arguments 23 in defense of their new and amended contentions that 24 the Board may not reach in making its admissibility 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
152 determination because, put plainly, there is no good 1
cause that the information being challenged is not 2
actually new and could have been raised earlier.
3 Section 2.309© requires that new and 4
amended contentions be based on new or materially 5
different information.
6 And in CLI-12-13, the Commission stated 7
that the trigger point for the timely submission of 8
new or amended contentions is when that information 9
become available.
10 Petitioners also have no excuse for 11 waiting for the staff -- waiting until the staff 12 issued its draft EA.
13 The Commission has repeatedly stated that 14 its expectation that Petitioners file contentions on 15 the basis of an applicant's environmental report and 16 not delay their contentions until after the staff 17 issues its environmental analysis.
18 Petitioners continue to reiterate 19 arguments from their initial hearing request that 20 there was no ER. But Holtec's new and significant 21 review was submitted to aid the NRC in its 22 environmental review and, therefore, meets the 23 definition of environmental report in 10 CFR 51.14.
24 Thus, Petitioning Organizations arguments 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
153 challenging the information in the environmental 1
report could have been raised at the outset of the 2
proceeding and are untimely.
3 Petitioners argue that the only way to 4
provide new information omitted from an ER is in a 5
revised ER and not in an RAI response.
6 But the NRC's regulations do not require 7
applicants to submit updated or revised environmental 8
reports.
9 Moreover, not only are their arguments in 10 consistent with Commission case law stating that if 11 applicant may supplement an ER through an RAI 12 response, these agreements are also irrelevant.
13 The trigger point for the timely 14 submission of contentions occurred in October 2024 15 when the RAI response became available. Thus, 16 Petitioners' arguments challenging information in the 17 RAI response are untimely.
18 Ultimately, the intent of the Commission's 19 timeliness regulations is in -- is to ensure a level 20 of expedition and efficiency in NRC proceedings such 21 that claims are raised and litigated at the earliest 22 possible time.
23 Petitioners have not met their obligation 24 to raise their amended contentions in a timely manner.
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154 Therefore, these contentions must be dismissed.
1 Any future proceedings would be subject to 2
a separate hearing opportunity, outside the scope of 3
this proceeding.
4 But the Petitioners would have an 5
opportunity to raise environmental contentions at that 6
point to the extent they believe the EA does not cover 7
new and significant information requiring 8
supplementation.
9 With regards to Amended Contentions 5 and 10 6, the Petitioners assert that the NRC has provided no 11 evidence of the demand for energy or need for power.
12 But these arguments fail to show a genuine dispute 13 with the staff's environmental review.
14 Section 1.2.3 of the Draft EA is entitled 15 Need for the Project. And in this section, the staff 16 specifically considered the need and demand for energy 17 from Palisades.
18 The Draft EA considered the Michigan Clean 19 Energy Law.
20 The Draft EA also considered the power 21 purchase agreements for the purchase of 100 percent of 22 the output from Palisades for the foreseeable future.
23 The amended contentions do not mention the 24 power purchase agreements or explain why the staff 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
155 discussion fo this -- these agreements is somehow 1
deficient.
2 Petitioners state that a difference 3
between Holtec's alternative analysis and the Draft EA 4
is that Holtec considers demand side management. But 5
the Petitioners do not explain or provide any support 6
for why any discussion of demand side management was 7
necessary in the Draft EA or why the Draft EA's 8
deficient for not including this information.
9 Petitioners argue that the Draft EA does 10 not consider the environmental effect of building 11 alternatives such as wind and solar on an incremental 12 basis as opposed to replacing Palisades with 800 13 megawatts as equivalent capacity.
14 But NEPA requires that agencies consider 15 a
reasonable range of alternatives that are 16 technically and economically feasible and meet the 17 purpose and need of the proposal.
18 Likewise, in CLI-12-5, the Commission 19 stated that agencies need only discuss those 20 alternatives that will bring about the ends of the 21 proposed action.
22 And under well-established federal and 23 Commission case law and policy, the NRC may accord 24 substantial weight to an applicant's purpose and need 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
156 statement as the staff has done here on the Draft EA.
1 Ultimately, Petitioners' arguments are 2
inadmissible because they provide no facts or expert 3
opinions sufficient to raise a genuine dispute with 4
the staff's environmental review.
5 In CLI-10-18, the Commission outlined, you 6
know, the discussion of, you know, the difference in 7
what would be required in EAs versus EISs with respect 8
to an alternative analysis.
9 And with respect to EAs, the Commission 10 has stated that, although agencies must give full and 11 meaningful consideration to all reasonable 12 alternatives in an EA, the obligation to consider 13 alternatives is a lesser one under and EA than an EIS.
14 The alternatives that should be considered 15 in an EA versus an EIS will be same. It's only in the 16 depths of the consideration and the level of details 17 provided in the corresponding environmental documents 18 that an environmental -- that an EA and EIS will 19 differ.
20 With respect to Contention 2 and the 21 staff's argument on collateral estoppel, the -- as the 22 Director's decision became the final action of the 23 Commission, it could have been appealed to a federal 24 court pursuant the Hobbs Act.
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157 Petitioners accused the staff and Holtec 1
of raising the bar for a contention admissibility in 2
demanding that Petitioners demonstrate the merits of 3
their case at this stage.
4 But Commission case law is clear that the 5
NRC's contention admissibility standards are strict by 6
design.
7 Petitioners try to argue that they are not 8
so strict, but they don't provide any specific details 9
or examples where the staff has demonstrated a higher 10 standard than that required under Section 2.309© or 11 (f)(1).
12 The question on the merits is whether the 13 staff Draft EA is reasonable under NEPA.
14 But to have their contentions admitted for 15 hearing, Petitioners must demonstrate some sort of 16 genuine, factual, or legal dispute with the staff's 17 Draft EA, which they have not done.
18 They also need to provide actual facts or 19 expert support for their assertion, but they have not 20 done this either.
21 In conclusion, Amended Contentions 2, 4, 22 5, and 6, and new Contention 8 should be dismissed.
23 Petitioner -- Petitioning Organizations do 24 not demonstrate good cause for their amended 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
158 contentions and a new and amended contentions are 1
inadmissible because they raise immaterial, out of 2
scope, and inadequately supported arguments that do 3
not establish a genuine material dispute with the 4
restart related license amendment request or the 5
staff's environmental review.
6 Accordingly, the Petitioning Organizations 7
motion and new and amended contentions should be 8
denied.
9 Thank you.
10 CHAIR KRAUSE: Thank you, Counsel.
11 Now, we'll turn to Counsel for the 12 Applicants, and you may begin your ten minute closing 13 statement.
14 MR. BLANTON: Thank you, Judge Krause.
15 Stan Blanton for the Applicants.
16 The motion should be denied and the new 17 and amended contentions should be dismissed Because 18 the Petitioning Organizations have failed to show good 19 cause why their proposed new and amended contentions 20 should be considered at this point in the proceedings.
21 And even if they were considered, they do 22 not meet the Commission's strict admissibility 23 standards.
24 Petitioners point to no information 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
159 NRC's Draft Environmental Assessment and Draft Finding 1
of No Significant Impact, which is purportedly new 2
information upon which new or amended contentions are 3
based.
4 That was -- they don't point to any 5
information that was not in the record of this 6
proceeding months before the publication of th NRC's 7
environmental documents.
8 As to timeliness, the 10 CFR 2.309 say 9
references new information, not just new information 10 in an environmental report.
11 Part 51 does not even require an 12 environmetnal report for the LARs that are subject to 13 this -- of this proceeding.
14 At any rate, the Commission has made clear 15 in the USEC and McGuire cases cited in our briefs that 16 Applicants responses to RAIs triggers the obligation 17 to file new and amended contentions.
18 The environmental information submitted by 19 Holtec in support of its categorical exclusion, as 20 supplemented by its RAI response, whether or not it is 21 characterized in its environmental report or just 22 support for Holtec's request for a categorical 23 exclusion was available to Petitioners beginning in 24 October of '24 and could have formed the basis for 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
160 contention.
1 Further, Petitioners assert and support no 2
material dispute of facts cited in the EA. The 3
proposed amended and substituted contentions suffer 4
the same flaws address in the Applicants' answer to 5
the Petition, but now, add the flaw being untimely 6
without a showing of good cause for being late.
7 The contentions are either identical to 8
contentions that have already been disposed of by this 9
Board in its April 1 order or are based on the same 10 type of policy arguments and unsupported conclusory 11 assertions that characterize those contentions.
12 In particular, Contentions 5 and 6 which 13 challenge the purpose and need statement and the 14 alternatives analysis in the EA mischaracterize both 15 features of the NRC's assessments and raise conclusory 16 disagreements primarily with the State of Michigan's 17 policy decisions that are not supported with any 18 evidence and are not material to the staff's 19 environmental assessment.
20 Contention 8 which is new has no legal 21 basis since it is not based on new facts and the NRC 22 has its own NEPA regulation and does not depend on CEQ 23 regulations.
24 I've address trigger point in my responses 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
161 to Judge Krause's questions, but I just reiterate that 1
the Diablo Canyon decision states that same standard 2
that is stated in our brief, that the intervener 3
retains the responsibility to raise new or amended 4
contentions as new information becomes available if 5
they wish to litigate those issues.
6 Amended Contention 2 that we alleges that 7
an EIS is required because of new operating license is 8
required is not materially different than the 9
contention the Board rejected in April.
10 It should be rejected again for the same 11 reasons.
12 As to the new argument on seismic issues, 13 that is based on old information. The seismic 14 information that Petitioners cite is not new and for 15 that reason, does not satisfy the good cause standard 16 of 2.309©.
17 Amended Contention 4
is also not 18 materially changed from the contention that the Board 19 previously rejected. Petitioning Organizations are 20 making the same argument that climate change will 21 require changes to the plant's design. They have 22 simply pointed to the Draft EA's discussion of climate 23 change as new supporting evidence for admission of 24 this contention as originally plead.
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162 The discussion in the EA is not based on 1
new information nor does it support Contention 4.
2 The Board determined that this contention 3
was not admissible in its prior order and should do so 4
again.
5 Amended Contention 5 challenging the 6
purpose and need statement of the EA is not based on 7
information that was previously unavailable because, 8
as Petitioners can see, it not materially different 9
from information available through Holtec's 10 environmental submissions in support of its 11 categorical exclusions.
12 NRC including the same statement in the EA 13 does not convert it to new information.
14 Additionally, the basis for Contention 5 15 mischaracterized the EA by asserting that NRC merely 16 adopted Holtec's proposed purpose and need statement 17 without analysis.
18 It is evident from the face of the EA that 19 the NRC considered that the State of Michigan --
20 considered the State of Michigan's act establishing 21 its clean energy plan and its recognition of nuclear 22 generated electricity to satisfy that goal.
23 Petitioners claim that NRC did not 24 consider the demand for -- the output of LSAs, 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
163 disingenuously ignores the NRC's consideration of the 1
power purchase agreements already signed with two 2
public power entities for the output of the plant.
3 Moreover, contrary to the Petitioners' 4
arguments and its -- and as explained in our brief, 5
NEPA permits the NRC to give great weight to Holtec's 6
objectives in defining the purpose and need for the 7
project.
8 It is telling that the only two cases that 9
Petitioners cite in support of Contention 5 recognize 10 the weight given to applicants objectives with respect 11 to the purpose and need for the project.
12 Those cases, which Are Environmental 13 Policy and Law Center vs. NRC and Citizen Against 14 Burlington vs. Busey, both rejected challenges to the 15 purpose and need statements in environmental impact 16 statements that are virtually identical to the 17 argument Petitioners make in Contention 5.
18 I would add -- cite those for the Board's 19 reference.
20 Similarly, Contentions Amended 21 Contention 6 which purports to challenge the 22 alternatives analysis in the EA is based on 23 information that has been available to the Petitioners 24 since October of last year. The information did not 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
164 become new information simply because NRC adopted it 1
in the EA.
2 Again, Petitioners mischaracterize the 3
actual analysis of the EA in their attempt to turn a 4
policy disagreement into an admissible contention.
5 Contrary to the Petitioners unsupported 6
assertions, the EA fully evaluates the no action 7
alternative and considered alternative generation 8
sources that fill the project's purpose of providing 9
non-emitting energy during the next several years.
10 The Environmental Policy and Law Center 11 decision rejected arguments that the NRC's EIS should 12 have considered demand side alternatives when the 13 purpose and need for the project was to create 14 baseload generation, as is this purpose and need.
15 The Petitioners ignore the fact that the 16 NRC's consideration of alternatives has to be viewed 17 in the context of the small impacts from operating the 18 Palisades reactor for the remainder of its license 19 term.
20 That has been the conclusion of two NEPA 21 analyses now and the Petitioners have failed to raise 22 anything other than conclusory disagreements for that 23 conclusion unsupported by any evidence.
24 To the extent that they attempt to rely 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
165 Mr. Gundersen's speculative assertions about the 1
impact of operating the plant are years old studies to 2
support their claims. That information was clearly 3
available when the initial deadline for raising 4
contentions expired.
5 Because of the small impacts, neither the 6
no action alternative nor the alternative sources of 7
generation considered would be preferable to the 8
proposed action.
9 And Petitioners point to no fact that 10 calls that conclusion into question.
11 Finally, new Contention 8 based on the 12 withdrawal of the CEQ NEPA regulations ignores the 13 fact that NRC has its own NEPA regulations that govern 14 the preparation of NEPA documents.
15 NRC is not dependent on the CEQ 16 regulations for its authority to incorporate documents 17 by reference in its own NEPA documents.
18 Moreover, an Appeals Court ruling does not 19 constitute new information under 10 CFR 2.309©.
20 Accordingly, the motion is due to be 21 denied and the contentions dismissed.
22 CHAIR KRAUSE: Thank you, Counsel.
23 Before I begin my closing remarks -- oh, 24 I'm sorry, Petitioning Organizations, your rebuttal.
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166 You have three minutes. Please begin.
1 MR. LODGE: Thank you, Your Honor.
2 Give me one moment to kind of get 3
organized here.
4 10 CFR 2.309(f)(2) states, quote, on 5
issues arising under the National Environmental Policy 6
Act participants shall file contentions based on the 7
applicant's environmental report, participants may 8
file new or amended environmental contentions after 9
the deadline in paragraph b of this section, e.g.,
10 based on a draft or a final NRC environmental impact 11 statement, environmental assessment, or any 12 supplements to these documents.
13 We timely and we believe properly under 14 this section amended our contentions and that they are 15 not excluded as a result of the REI response in 2024.
16 I'd also like to point out that the method 17 by which the NRC put the public on notice that there 18 was a putative environmental report was by referring, 19 and I can't locate it, by referring to the Holtec new 20 and significant review by its actual name which I 21 would say kind of botched or butchered sort of reading 22 it, certainly didn't suggest by its title that it was 23 an environmental report or something that would be a 24 simile for an environmental report.
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
167 Finally, this State of Michigan policy so 1
far as clean energy is concerned, I'm sorry, I have 2
just been shown that the new and significant review 3
title was Environmental New and Significant Review 4
Proposed Resumption of Power Operations Palisades 5
Nuclear Plant. That's very difficult to translate 6
that if you're a member of the public into 7
environmental report.
8 Finally, the State of Michigan policy 9
decision as to what comprises clean energy was 10 informed by a report by a firm -- by the Enercon 11 report which was commissioned by the State of 12 Michigan.
13 Enercon is E-N-E-R-C-O-N, is a contractor 14 for Palisades. This conflict of interest is not 15 revealed anywhere in environmental or other documents 16 that we could find.
17 Thank you.
18 CHAIR KRAUSE: Thank you, Counsel.
19 Before I begin my closing remarks, do my 20 colleagues have anything else they wish to ask or 21 raise?
22 Judge Arnold?
23 JUDGE ARNOLD: Nothing.
24 CHAIR KRAUSE: Judge Miller?
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
168 JUDGE MILLER: No.
1 CHAIR KRAUSE: All right, on behalf of the 2
Licensing Board, I would like to extend our thanks to 3
the participants for your responses to our questions.
4 We will consider these responses in ruling on the new 5
and amended contentions.
6 We should also point out that we will not 7
be seeking at this time additional briefing. If any 8
of the participants wish to file a motion for 9
additional briefing, they may do so, but they need to 10 meet the requirements of the NRC's regulations, 11 including timeliness and the standards for motions.
12 I would also like to extend a special 13 thanks to our administrative and IT staff and our law 14 clerks.
15 Also, thank you to the court reporter.
16 We ask the participants to please stay 17 connected on Teams for a few minutes after we adjourn 18 to answer any clarifying questions from the court 19 reporter.
20 We are adjourned.
21 (Whereupon, the above-entitled matter went 22 off the record at 12:00 p.m.)
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