ML23111A175
| ML23111A175 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 04/19/2023 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| RAS 56703, 50-445-LR, 50-446-LR, NRC-2358 | |
| Download: ML23111A175 (0) | |
Text
Official Transcript of Proceedings
NUCLEAR REGULATORY COMMISSION
Title:
Vistra Operations Company, LLC
Docket Number: 50-445-LR and 50-446-LR
Location: Teleconference
Date: 04-19-2023
Work Order No.: NRC-2358 Pages 1-78
NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1716 14th Street, N.W.
Washington, D.C. 20009 (202) 234-4433 1
1 UNITED STATES OF AMERICA
2 NUCLEAR REGULATORY COMMISSION
3 + + + + +
4 ATOMIC SAFETY AND LICENSING BOARD PANEL
5 + + + + +
6 ORAL ARGUMENT
7 ---------------------------x
8 In the Matter of: :
9 VISTRA OPERATIONS COMPANY, : Docket Nos.
10 LLC : 50-445-LR and 50-446-LR
11 (Comanche Peak Nuclear : ASLBP No.
12 Power Plant, Units 1 and 2): 23-978-01-LR-BD01
13 ---------------------------x
14 Wednesday, April 19, 2023
15 Video Teleconference
16
17
18 BEFORE:
19 G. PAUL BOLLWERK, III, Chair
20 GARY S. ARNOLD, Administrative Judge
21 SUE H. ABREU, Administrative Judge
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1 APPEARANCES:
2 On Behalf of Vistra Operations Company, LLC.:
3 RYAN K. LIGHTY, ESQ.
4 PAUL BESSETTE, ESQ.
5 TIMOTHY MATTHEWS, ESQ.
6 of: Morgan, Lewis & Bockius LLP
7 1111 Pennsylvania Avenue, N.W.
8 Washington, DC 20004
9 202-739-5502 (Silverman)
10 202-739-5733 (O'Neill)
11 ryan.lighty@morganlewis.com
12 Paul.bessette@morganlewis.com
13 Timothy.matthews@morganlewis.com
14
15 On Behalf of the Nuclear Regulatory Commission:
16 ETHAN LICON, ESQ.
17 MARCIA CARPENTIER, ESQ.
18 of: Office of the General Counsel
19 Mail Stop - O-14A44
20 U.S. Nuclear Regulatory Commission
21 Washington, D.C. 20555-0001
22 marcia.carpentier@nrc.gov
23 Ethan.licon@nrc.gov
24
25
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1 On Behalf of Citizens for Fair Utility
2 Regulation:
3 W. DAVID GRIGGS, ESQ.
4 1925 Belt Line Road
5 Suite 552
6 Carrollton, TX 75006
7 david@dgriggs.com
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1 P R O C E E D I N G S
2 2:01 p.m.
3 CHAIR BOLLWERK: Good afternoon. Today
4 this Atomic Safety and Licensing Board is here to
5 conduct an initial prehearing conference in this
6 license renewal proceeding in which applicant, Vistra
7 Operations Company, LLC, or Vistra, requests that the
8 10 Code of Federal Regulations, or CFR Part 50
9 operating licenses for its Comanche Peak Nuclear Power
10 Plant, Units 1 and 2, be extended for an additional 20
11 years until February the 3rd, 2050 and February the
12 2nd, 2053 respectively.
13 In response to a hearing opportunity
14 notice published in Volume 87 of the Federal Register
15 at page 73,798 on January 30, 2023, petitioner,
16 Citizens for Fair Utility Regulation, or CFUR,
17 submitted a hearing petition which it amended on March
18 the 1st, 2023 that includes four contentions
19 contesting various aspects of Vistra's October 23,
20 2022 license renewal request. These include
21 challenges to Vistra's analysis of radiation releases
22 and exposures to the public, facility workers and
23 terrestrial and aquatic organisms; seismic risks;
24 cooling water availability in light of climate change;
25 and climate change impacts generally including
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1 greenhouse gas emissions from facility operations.
2 In answers dated March the 27th, 2023,
3 while not contesting CFUR's standing to intervene in
4 this proceeding, Vistra and the NRC staff both seek
5 the denial of CFUR's amended hearing request asserting
6 the petitioner, CFUR, has failed to submit an
7 admissible contention, a pleading defect that will
8 result in the termination of this adjudicatory
9 proceeding.
10 In an April 3, 2023 reply to the Vistra
11 and NRC staff answers, petitioner, CFUR, again
12 declared that it should be admitted as a party to this
13 proceeding because each of its contentions comply with
14 the six standards in 10 CFR Section 2.309(f)(1)(iv)
15 governing contention admissibility.
16 Previously, in our April 26, 2022 issuance
17 regarding the scope and procedures for this initial
18 prehearing conference, we indicated that we were
19 convening this oral argument to allow the participants
20 to present their positions and respond to Board
21 questions concerning three issues associated with the
22 CFUR contentions, questions that I will describe in
23 more detail as this conference moves forward.
24 Before beginning the oral argument, I
25 would like to introduce the Licensing Board members
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1 and then have the representatives of the participants
2 identify themselves for the record along with any
3 individuals they may have available to provide them
4 with assistance in responding to the Board's
5 questions. Administrative Judge Gary Arnold is a
6 nuclear engineering, while Administrative Judge Sue
7 Abreu is an engineer, a nuclear medicine physician,
8 and an attorney, who also serves as the Licensing
9 Board Panel's Associate Chief Administrative Judge
10 Technical. My name is Paul Bollwerk and I'm an
11 attorney and the Chair of this Licensing Board.
12 We are all participating from the
13 Licensing Board Panel's hearing room at NRC
14 Headquarters in Rockville, Maryland as is our law
15 clerk, Noel Johnson, while our law clerks Allison Wood
16 and Emily Newman are attending remotely via video
17 connection.
18 At this point, I'd like to have counsel
19 for the various participants identify themselves for
20 the record as well as any individuals they may have
21 available to provide them with assistance in
22 responding to Board questions. Why don't we start
23 with the applicant, Vistra, then move to the NRC
24 staff, then finally petitioner, CFUR?
25 MR. LIGHTY: Thank you, Your Honor, and
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1 may it please the Board. Ryan Lighty of Morgan Lewis
2 and Bockius appearing as counsel for the applicant,
3 Vistra Operations Company, LLC. Joining me in person
4 today are my co-counsel, Paul Bessette and Timothy
5 Matthews, also of Morgan Lewis. And Vistra personnel
6 are monitoring this proceeding remotely and are
7 standing by to provide support for responding to Board
8 questions if that is necessary.
9 CHAIR BOLLWERK: All right. Thank you
10 very much.
11 MR. LICON: Good afternoon.
12 CHAIR BOLLWERK: Staff?
13 MR. LICON: Apologies. Good afternoon.
14 My name is Ethan Licon and I along with my colleague,
15 Marcia Carpentier, are counsel for the NRC staff.
16 Joining me are -- there is a technical staff
17 supporting in the room -- is Jeffrey Rikhoff as well
18 as other technical staff standing by virtually.
19 CHAIR BOLLWERK: All right. Thank you.
20 MR. GRIGGS: Chairman Bollwerk, thank you
21 for the opportunity. My name is David Griggs. I'm
22 counsel representing Citizens for Fair Utility
23 Regulations, CFUR, in this proceeding today. I am
24 appearing by myself. I do not have a support staff,
25 but I'll do the best I can. Thank you for this
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1 opportunity.
2 CHAIR BOLLWERK: All right. I noticed you
3 used the acronym CFUR. Maybe that's easier to say
4 than C-F-U-R, so I may adopt that as well. I
5 appreciate that. Thank you.
6 MR. GRIGGS: Thank you, Your Honor.
7 CHAIR BOLLWERK: Okay. I would note that
8 prior to beginning this session, I asked all the
9 participants' representatives to try to remember that
10 notwithstanding we're using a video link via Webex to
11 which the court reporter has access. As a courtesy to
12 those members of the public and others who are joining
13 us via a listen only telephone connection, as they
14 start to speak, to please identify themselves so that
15 it will be clear who is talking. Also, as the
16 participants' representatives are aware, we're
17 attempting to monitor everyone's connectivity in an
18 effort to see if anyone drops off unexpectedly so we
19 can take steps to try to ensure we don't move forward
20 with the argument until they are able to reconnect the
21 video link or telephone.
22 I would also note that we made available
23 to the participants and interested members of the
24 public via an April 10, 2023 Board issuance in this
25 case, a notice on the NRC's public website and an
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1 agency press release information on how to access this
2 conference by telephone on a listen only basis. We
3 hope that those members of the public and others who
4 wish to listen to this conference have been able to
5 access that bridge line this afternoon.
6 I would observe as well that this
7 proceeding is being transcribed and a transcript of
8 the conference should be available in the NRC's
9 electronic hearing docket by early next week.
10 As to the process that we'll follow for
11 today's argument, as we outlined in our April 6, 2023
12 issuance, each participant's designated representative
13 has been allotted five minutes within which to present
14 its initial position regarding the three specific
15 issues proffered by the Board. The order of
16 presentation will differ depending on the particular
17 question with the first participant making a
18 presentation also being afforded an additional five
19 minutes at the end for a rebuttal presentation.
20 I would observe as well that we have read
21 the participants' pleadings, so we hope that their
22 arguments will focus on identifying the principal
23 points in controversy regarding each issue posed by
24 the Board and the information supports or rebuts their
25 legal and/or factual claims regarding that issue.
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1 And as we also noted in our April 6th
2 order, because this argument is not an evidentiary
3 hearing, with one exception regarding Issue 2 that I
4 will explain when we reach that issue, participants
5 should not be attempting to introduce material during
6 the argument that has not already been cited in their
7 pleadings.
8 Finally, for the record as well as the
9 understanding of those listening in this afternoon,
10 prior to beginning of participants' presentations on
11 each issue, I will restate the issue as it was set
12 forth in our April 6th memorandum and order and
13 provide the participants order of presentation. And
14 I should note that while we indicated in our April 6th
15 issuance that we hope to complete this argument in
16 about an hour, I'm thinking now that probably
17 hopefully means by around 3:30 p.m. Eastern Time or
18 2:30 p.m. Central Time since we're already about 15
19 minutes into the argument time.
20 So let's begin with Issue 1 and again, I
21 would seek the indulgence of the parties. I'm going
22 to read it into the record. CFUR's Contention 1
23 claims that the Vistra Environmental Report, or ER,
24 fails to analyze the cumulative radiological impacts
25 of an additional 20 years of Comanche Peak facility
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1 operations in terms of human health risks and farm,
2 crop, wildlife, and vegetation impacts. Citing the
3 CFUR amended petition at pages 11 and 12, in its
4 answer, the NRC staff asserts that this portion of
5 Contention 1 is inadmissible because one, the category
6 1 generic finding in 10 CFR Part 51 Subpart A,
7 Appendix B, Table B1 regarding the radiological
8 impacts of extended operation upon members of the
9 public, plant workers, and terrestrial, aquatic
10 organisms required CFUR to seek a 10 Code of Federal
11 Regulations Section 2.335 waiver to challenge this
12 generic impacts finding. And second, that CFUR
13 failed to challenge the plant-specific Table B1
14 Category 2 cumulative impacts discussion in ER Section
15 4.12. And the citation there was to the NRC staff
16 answer at 17 and 18.
17 CFUR, in its reply, asserts that the
18 staff improperly characterizes its arguments as not
19 meeting the federal or NRC definitions of cumulative
20 impacts, quote, unquote, but does not appear to
21 address the substance of the staff's arguments citing
22 the CFUR reply at 5.
23 So our question then is, is this
24 cumulative impacts claim included by one or both of
25 the two reasons assigned by the NRC staff in its
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1 answer? And the order of presentation is CFUR five
2 minutes, the NRC staff five minutes, VISTRA five
3 minutes, and then CFUR 's rebuttal is five minutes.
4 And so why don't we then begin with CFUR's initial
5 response to our question.
6 MR. GRIGGS: Thank you, Chairman Bollwerk.
7 My name is David Griggs. Again, I represent CFUR and
8 we contend, as representing CFUR, that we have
9 challenged the plant-specific Category 2 cumulative
10 impacts discussion in the ER, Section 4.12, and we'd
11 like to further explain and elaborate on that now.
12 In Section 4.12, the requirement is stated
13 from 10 CFR 51.53 that applicants, in their LRA, the
14 License Renewal Application, shall provide information
15 about other past, present, and reasonably foreseeable
16 future actions occurring in the vicinity of the
17 nuclear plant that may result in a cumulative effect.
18 It goes on to state that the cumulative impacts
19 analysis takes into account all actions however minor
20 since the impacts from individually minor actions may
21 be significant when considered collectively over time.
22 CFUR contends that Vistra has not
23 adequately considered some very significant plant-
24 specific and nearby geographical area impacts and
25 health-related risk. It's a well-known fact that much
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1 of the DFW, Dallas-Fort Worth metropolitan area is a
2 non-attainment area for an 8-hour ozone. In fact,
3 Vistra's ER, in Section 3.3.3.1 points this out. Nine
4 of the counties in the air control region make up this
5 non-attainment region including five counties within
6 a 50-mile radius of Comanche Peak. And Figure 3.36 in
7 Appendix E, the ER, shows a diagram of those counties.
8 In that same section of the ER, the text
9 specifies that the Clean Air Act has six criteria
10 pollutants for air determination. One of these is
11 particulate matter, or PM. This region has had a long
12 battle with this pollutant, and the area around
13 Comanche Peak has an abundance of PM sources that the
14 ER has not considered which we believe clearly
15 contribute to the Category 2 cumulative effects
16 contended in our petition.
17 And it is this particulate matter and its
18 relationship with radionuclides, which were discussed
19 in our petition, radionuclides being the radioactive
20 decay of unstable atoms that we want to bring to the
21 Board's attention today. One of the documents we
22 submitted in our supplemental references last week was
23 a 2018 study published by the Journal of the American
24 Heart Association, funded by a grant from EPA and
25 Harvard. And that study set out to understand the
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1 particle-bound radionuclide exposures on blood
2 pressure and its implications on public health. The
3 study found that inhaled particles act as vectors for
4 radionuclides which may continue to emit radiation
5 after inhalation and disposition in the human
6 respiratory tract.
7 The findings suggest that particulate-
8 bound radionuclides, on inhalation, can subsequently
9 lead to systemic inflammation and oxidative stress,
10 potentially causing changes in the vascular structure
11 or function. This study is particularly troubling for
12 the region surrounding Comanche Peak given that the
13 levels of particulate matter are high due to a number
14 of factors including the pollutants that contribute to
15 non-attainment.
16 In another supplemental document filed
17 last week, we cited a peer-reviewed report on
18 radionuclide contamination as a risk factor in
19 terrestrial systems that analyze biological effects on
20 radionuclides due to emitted ionizing radiation. The
21 article reported that radionuclides have long half-
22 lives and discussed their effect on thyroid cancers on
23 the populations of Ukraine and Russia after the
24 Chernobyl accident. The report concluded that
25 environmental contamination by anthropogenic
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1 radionuclides without a doubt create serious health
2 risks.
3 So Judges, as you know, radionuclides may
4 be released form nuclear power plants into the
5 environment in many ways. The new GEIS on page 326
6 states that during normal operations and potentially
7 during a refurbishment, nuclear power plants can
8 release gaseous emissions that deposit small amounts
9 of radioactive particles in the surrounding
10 environment, and the GEIS also states that animals may
11 experience exposure to ionizing radiation through
12 direct air -- contact with the air, with water,
13 inhalation, or even ingestion of food -- contaminated
14 food, water, and soil.
15 The ER is very light on reporting of
16 polluting facilities in the region. It should be
17 noted that there are numerous industrial sources that
18 produce particulate matter within a 50-mile radius,
19 even within a close radius of the plant. Several
20 concrete batch plants are in the area. Granbury,
21 Nemo, Cleburne areas are surrounding communities.
22 Major cement manufacturing industries, kilns with long
23 histories of significant PM pollution are located in
24 Midlothian, a city nearby, and the company even
25 produces its own -- Vistra produces its own
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1 particulate matter up to 3.15 a year.
2 So in conclusion, we contend that there
3 are -- were important cumulative impacts that were not
4 fully considered in the ER dealing with a combination
5 of radionuclides and the heavily prevalent PM in the
6 region as we discussed earlier. It is this cumulative
7 impact together with radionuclides that we believe
8 pushed this to a Category 2 concern. Thank you.
9 CHAIR BOLLWERK: I'm going to anticipate
10 at least one argument that's going to be made by the
11 staff and the applicant, which is the -- I believe the
12 references you just gave us were to the filing you
13 made on April 14th?
14 MR. GRIGGS: I believe that -- the 14th?
15 Possibly. Yes -- yes, that's correct, Your Honor.
16 There were several references that -- yes, April 14th,
17 the two articles I just quoted are on that list.
18 CHAIR BOLLWERK: Right. And in the order
19 we issued, we indicated that any additional references
20 were only supposed to be relative to Issue 2, which
21 deals with Contention 2, on seismic risk, not -- it
22 was now allowing us to -- allowing you to file
23 additional information about Contention 1. Do you
24 have any response to that? Should we even be
25 considering -- Your Honor, you had put this up for
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1 additional information. We were just simply trying to
2 explain what we believe the cumulative impacts are.
3 The quotes that we gave were to the ER which
4 obviously, the applicant has, and I apologize if we
5 misunderstood. But we thought that by giving you the
6 additional references, that we would be covered. So
7 apologize if that was a misunderstanding.
8 CHAIR BOLLWERK: All right. Well, I think
9 footnote 5 that we had that in was pretty clear, but
10 we'll let the staff and the applicants -- see what
11 they have to say about that. Also, why -- you really
12 haven't said anything about the Category 1 exclusions
13 that apply to each of these radionuclide areas. Don't
14 those categorical exclusions, will they take into
15 account cumulative impacts?
16 MR. GRIGGS: Well, Your Honor, in this
17 particular case, there are significant differences in
18 this area and this plant-specific situation that we
19 believe are relevant here. Because of the
20 circumstances that we describe, we believe that it is
21 a Category 2 designation. I understand your concern
22 about the policy issues that the NRC has to consider,
23 but what we were trying to do with our argument was to
24 make sure that we included other sources in the
25 community that would combine to make this a serious
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1 impact that would qualify for a Category 2 analysis.
2 CHAIR BOLLWERK: All right. But if,
3 obviously, the Board disagrees, this is a Category 1
4 analysis, which absent a waiver petition under Section
5 2.335, we cannot consider additional information. I
6 take it that's going to be a problem for your
7 argument.
8 MR. GRIGGS: Well, that's certainly a
9 decision for the Board to make, Your Honor, but we are
10 representing the public here, an organization that
11 represents people who are directly affected by this
12 license renewal, and we want to have the opportunity
13 to present our case to the Board.
14 CHAIR BOLLWERK: All right. Let me see if
15 Judge Abreu or Judge -- no further questions. All
16 right. Thank you. So we'll come back to you for
17 rebuttal at the end on this issue. And let's move
18 then to the NRC staff, please. Thank you, sir.
19 MR. GRIGGS: Thank you.
20 MR. LICON: Thank you, Your Honor. Again,
21 my name is Ethan Licon and I am counsel for the NRC
22 staff beginning to speak now. The petitioner's
23 cumulative impacts claim is precluded for two reasons.
24 First, petitioner uses the term cumulative impacts in
25 the second and fourth bases for Contention 1. But
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1 cumulative impacts or cumulative effects is a term of
2 art with a specific meaning that does not with how the
3 petitioner uses the term. The petitioner uses the
4 term to describe areas that the Commission has
5 designated by rulemaking as Category 1 generic issues,
6 which are not subject to challenge and adjudication
7 without a waiver under 10 CFR 2.335. And the
8 petitioner has not requested such a waiver here.
9 Second, cumulative impacts in the sense of
10 the term of art is indeed a Category 2 plant-specific
11 issue which could be within the scope of a license
12 renewal proceeding. However, petitioner has not
13 actually raised that issue; that is the petitioner has
14 not provided any specific reference to the cumulative
15 impacts discussion found in Section 4.12 of the
16 applicant's Environmental Report. And to the extent
17 that the petitioner is doing that -- or did that in
18 its opening statement just now in reply to the Board,
19 they're doing this for the first time today and
20 basically are submitting a new Contention, not the one
21 they fled for which they offered no support. As such,
22 the petitioner has also failed to raise a genuine
23 dispute with the applicant -- with the application as
24 required under 10 CFR 2.309(f)(1) and, therefore, for
25 all these reasons, the petitioner's cumulative impacts
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1 claim is inadmissible.
2 So to explain those reasons further, the
3 NRC regulations are clear that Commission rules and
4 regulations are not subject to challenge in
5 adjudicatory proceedings unless the petitioner
6 requests a waiver under 10 CFR 2.335(e). As explained
7 in our pleading, the NRC has developed a generic
8 environmental impact statement, or GEIS, for license
9 renewal that analyzes and resolves some environmental
10 impacts generically by rule when they are expected to
11 be the same for all nuclear power plants or those of
12 a certain type. This analysis includes the impacts of
13 operating the plant for an additional 20 years and
14 also the impacts of any refurbishment that needs to be
15 done through the period of extended operation. Issues
16 that are resolved generically are Category 1 issues
17 and are incorporated into NRC regulations in Appendix
18 to 10 CFR Part 51.
19 License renewal applicants are not
20 required to submit additional analyses for Category 1
21 issues in their environmental reports. They can rely
22 on the analysis the NRC staff conducted when
23 designating the issues as Category 1. Other
24 environmental issues are Category 2 issues and a
25 license renewal applicant must address on a site-
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1 specific basis. Here the petitioner's cumulative
2 impacts claim alleges a failure to analyze cumulative
3 radiological impacts related to potential health risks
4 and impacts to farms, crops, wildlife, and vegetation
5 from operating the Comanche Peak Units for the period
6 of extended operation. But the term cumulative
7 impacts or effects, as used in the GEIS and/or NEPA
8 analyses refers to the -- to, quote, effects on the
9 environment that result from the incremental effects
10 of the proposed action when added to other past,
11 present, and reasonably foreseeable future actions
12 regardless of what agency or person undertakes such
13 other actions. That is cumulative impacts or
14 cumulative effects refers to the impacts from an
15 action curing license renewal and other actions such
16 as impacts to environmental resources from a nearby
17 coal plant, construction project or et cetera, things
18 like that.
19 CHAIR BOLLWERK: We need to take a break
20 so I will (telephonic interference) now and take a
21 brief recess.
22 MR. LICON: Understood. Thank you.
23 (Whereupon, the above-entitled matter went
24 off the record at 2:25 p.m. and resumed at 2:28 p.m.)
25 CHAIR BOLLWERK: All right. Judge Abreu
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1 is temporarily indisposed but she's asked us to go
2 ahead and continue on. She's going to rely on the
3 transcript for any portion of the argument that she
4 misses going forward. So staff counsel had about a
5 minute left in his argument respecting Issue 1, and
6 I'll let you go ahead and continue then.
7 MR. LICON: Thank you, Your Honor. This
8 is Ethan Licon again. So as we were saying, the --
9 such cumulative impacts, in the sense of the term of
10 art, are indeed analyzed in Section 4.12 of the
11 applicant's Environmental Report. However, the
12 petitioner makes no reference to this section
13 whatsoever in its pleading and thus fails to raise a
14 genuine dispute with the application. To our
15 knowledge, this -- today is the first time that they
16 have specifically referenced 4.12.
17 Instead petitioner asserts a failure to
18 analyze the cumulative radiological, quote,
19 cumulative, unquote, radiological impacts to health
20 risks, farms, wildlife, and vegetation from the
21 operation of the Comanche Peak Units for an additional
22 20 years. Presumably, the cumulative, in the sense
23 that CFUR uses it, is supposed to refer to the single
24 action of operating the plant through the 20-year time
25 period. May I finish my sentence?
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1 CHAIR BOLLWERK: Yes, go ahead.
2 MR. LICON: Okay. But the Commission, by
3 rule, found these to be Category 1 issues which are --
4 and we've said this in our pleading -- radiation
5 exposures to the public, radiation exposures to plant
6 workers, exposure of terrestrial organisms to
7 radionuclides, and exposure of aquatic organisms to
8 radionuclides.
9 CHAIR BOLLWERK: All right. So tell me,
10 really the Category 1 exclusions that apply to the
11 public, to workers, to terrestrial and aquatic
12 organisms, they really encompass cumulative impacts in
13 this context?
14 MR. LICON: I'm sorry, Your Honor, you cut
15 out for me at the last part.
16 CHAIR BOLLWERK: All right. We'll try
17 again. So it's the staff's position then that -- or
18 is it the staff's position that with respect to the
19 Category 1 designations for worker exposure, exposure
20 to the public in radionuclides as well as terrestrial
21 and aquatic organisms, that the cumulative impacts,
22 quote, unquote, are encompassed within that Category
23 1 finding?
24 MR. LICON: Yes, Your Honor, in the sense
25 that CFUR has referred to these radiation effects or
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1 exposures, those are encompassed within these Category
2 1 findings.
3 CHAIR BOLLWERK: And so what if any
4 radiological impacts need to be assessed under
5 cumulative impacts under Section 4.12 or somewhere
6 else in the ER?
7 MR. LICON: In that regard, the
8 petitioner's contention is still inadmissible because
9 they have not made any sort of specific reference to
10 Section 4.12 as required to do so -- as they would be
11 required to do so to raise a genuine dispute with the
12 application.
13 CHAIR BOLLWERK: Well, if I had this as a
14 Category 2 -- cumulative impacts for Category 2. If
15 they had made that argument under -- with regard to
16 Section 4.12, would that then mean that they had an
17 admissible contention?
18 MR. LICON: If they had -- so what youre
19 asking, I think, is if the petitioners had basically
20 engaged with Section 4.12, would there be any other
21 issues --
22 CHAIR BOLLWERK: No -- if -- not
23 withstanding the designation of Category 2, as
24 cumulative impacts -- excuse me -- as Category 2, does
25 it make any difference in this context, or is it
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1 really all encompassed within Category 1 in terms of
2 cumulative impacts?
3 MR. LICON: Can I consult with my
4 technical staff for one moment?
5 CHAIR BOLLWERK: Sure. Go ahead.
6 (Pause.)
7 CHAIR BOLLWERK: Let me just say for the
8 record, Judge Abreu has joined us again.
9 (Pause.)
10 MR. LICON: Thank you for your patience,
11 just finished conferring.
12 CHAIR BOLLWERK: Before you go on, let me
13 just make one point for the record. The Vistra ER has
14 a cumulative impacts section which is 4.12 at page 4-
15 37. The ER itself is part of the Vistra application
16 that's found at ADAMS Accession Number ML2276AO82.
17 It's rather a long document. But it also has the
18 terrestrial discussion in Section 4.12.5.1 at pages 4-
19 40 to 4-41, and aquatic discussion at Section 4.12.5.2
20 at page 4-41, and the human health discussion of the
21 cumulative impacts in Section 4.12.8 at pages 4-42 to
22 43. So it does have some references to those
23 subjects, but I'm wondering what's the relationship
24 between those sections and obviously the Category 1
25 exclusion that applies generally for radionuclides?
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1 MR. LICON: Thank you, Your Honor. So if
2 there were other radiation sources in the community
3 within 50 miles, for example, another plant or a
4 Department of Energy site or other uses of radioactive
5 material that the petitioner did identify in support
6 of its contention that these -- that effects from
7 these hypothetical sites were not adequately
8 considered, that could be -- that would be something
9 that would support an admissible contention. But the
10 petitioner hasn't done anything of the sort here.
11 CHAIR BOLLWERK: Right.
12 (Simultaneous speaking.)
13 CHAIR BOLLWERK: Any cumulative impacts
14 that are associated with the facility operation,
15 whether they're low levels of radiation or high levels
16 of radiation are all going to be within the Category
17 1 exclusion?
18 MR. LICON: Yes. That's correct, Your
19 Honor.
20 CHAIR BOLLWERK: If there were another
21 nuclear facility or some other source of radiation
22 that fell within an area -- within a reasonable area
23 of the plant, that then would be the cumulative
24 impacts in conjunction with what's coming from the
25 facility that would need to be considered?
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1 MR. LICON: Yes. That's correct, Your
2 Honor.
3 CHAIR BOLLWERK: As a cumulative impact --
4 as a Category 2 cumulative impact in the ER?
5 MR. LICON: Yes, that's correct.
6 CHAIR BOLLWERK: Thank you. Okay. Any
7 other questions by other Board members? All right.
8 Thank you very much. Let's move on to Vistra counsel
9 then. Thank you.
10 MR. LIGHTY: Thank you, Your Honor. As
11 noted in our answer pleading, the claims in Contention
12 1 were abnormally vague. And the NRC staff and Vistra
13 were left to guess what arguments CFUR was trying to
14 advance. We had to guess whether it was a safety or
15 environmental claim. We had to guess what portion of
16 the application was being challenged. We had to guess
17 whether CFUR's use of the term cumulative was intended
18 to have its common meaning or whether CFUR was trying
19 to invoke the need by term of art.
20 And CFUR's reply at page five criticized
21 the staff for guessing incorrectly, but the
22 adjudicatory rules don't place the burden on
23 responding parties to guess what claims are being
24 raised. Quite the opposite. The fact that we're
25 still trying to sort out the meaning of this claim
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1 seven weeks after the hearing request deadline has
2 expired is a pretty textbook indication that the
3 petition lacks the clarity and precision required for
4 an admissible contention, and that alone is sufficient
5 reason to reject it.
6 Bur more directly to the Board's question,
7 this issue is a bit of a red herring because CFUR's
8 claim is inadmissible regardless of which meaning CFUR
9 intended. If CFUR intended its claim is a challenge
10 to the ER discussion of impact from the proposed
11 action, then, as noted in our answer at pages 12 to
12 13, it's inadmissible because radiological impacts to
13 the public, plant workers, and terrestrial and aquatic
14 organisms are Category 1 issues analyzed in the GEIS.
15 The ER adopts those analyses by reference, and the
16 conclusions are codified in the NRC's regulations at
17 Part 51 Table B. And NRC regulations can't be
18 challenged in individual adjudicatory proceedings
19 absent a waiver, which CFUR neither requested nor
20 obtained.
21 Alternatively, if CFUR intended its claim
22 as a challenge to the ER discussion of incremental
23 radiological impacts of other past, present, and
24 future actions, meaning radiological impact not
25 attributable to Comanche Peak license renewal, then it
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1 is still inadmissible because CFUR's petition entirely
2 ignored the relevant cumulative impacts discussion in
3 ER Section 4.12, and CFUR did not rebut that assertion
4 in its reply.
5 We're hearing for the first time today new
6 information about a new line of argument relating to
7 particulate matter relating to air attainment,
8 arguments that were neither raised in the petition,
9 the answer pleadings, or the reply and are just being
10 raised now for the first time. In our view, Your
11 Honors, this is an untimely attempt to amend the
12 contention, and it should be rejected. The
13 petitioners have not submitted petition under 10 CFR
14 Section 2.309(c) seeking leave of the Board to amend
15 its contention to raise these new arguments out of
16 time.
17 The CFUR attempted to rely on the source
18 materials that were in its advisement of supplemental
19 authorities filed on April 14th, but as Your Honor
20 noted, the Board's order of April 6th made very clear,
21 on page three, that there is only one exception to the
22 prohibition on citing material that had not already
23 been cited in the participants pleadings before the
24 Board, and it referred to Footnote 5 of that order on
25 page five, and the first few words of that footnote
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1 make very clear that the invitation to submit
2 supplemental authority is limited to, quote, this
3 question, end quote. And that corresponds to question
4 two of the Board's order which relates only to
5 Contention 2.
6 So we do object to the reference to those
7 new authorities in the record today, and we believe
8 that these new arguments are untimely and should be
9 disregarded by the Board.
10 I would like to briefly turn back to Judge
11 Bollwerk's question to the staff regarding the
12 difference between cumulative impacts that are
13 considered in the Category 1 issues using the term
14 cumulative given its common meaning versus what is
15 left to be considered in the Category 2 cumulative
16 impacts issue. And I think Judge Bollwerk really kind
17 of hit on this distinction that the Category 1 issues
18 relate to the impacts of the proposed action itself,
19 Comanche Peak license renewal. And as that term is
20 used in different parts of the GEIS, you know, for
21 example, at page 4-145 and 4-138, and talking about
22 cumulative exposures of -- you know, to radiological
23 effluence, that term is used in a context of a
24 cumulative exposure from the proposed action over the
25 duration of license renewal; in other words, 20 years
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1 of cumulative radiological exposures, where the term
2 used in Section 4.12 is the NEPA term of art referring
3 to other past, present, and future actions aside from
4 Comanche Peak license renewal.
5 And with that, we're happy to take any
6 questions the Board may have.
7 CHAIR BOLLWERK: All right. Thank you.
8 Any questions, Board members?
9 JUDGE ARNOLD: I do have a -- this is
10 Judge Arnold. The cumulative impact in 4.12.8 says it
11 considers the radiological effect to the public. When
12 they're talking about the effect to the public, do
13 they consider all the various streams by which
14 radiological material may get to the public? I mean
15 does this include through farms and through fish that
16 are caught and consumed, or is it just direct
17 radiation?
18 MR. LIGHTY: I think the Section 4.12.8
19 human health discussion is broader and would look at,
20 you know, radiological impacts from sources other than
21 the plant itself. But I think the geography, the
22 geographic scope may depend on the source, on the
23 resource area because what youre looking at in
24 cumulative impacts is how the impacts from license
25 renewal may intermingle with these other impacts. And
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1 so the geographic scope or the chronological scope may
2 depend on resource area.
3 JUDGE ARNOLD: I guess that doesn't, I
4 think, address my question. When they talk about
5 effects to the public, are they looking at all
6 possible pathways to the public?
7 MR. LIGHTY: I believe the answer is yes,
8 that would be the scope of the cumulative impacts so
9 long as those effects would cross with impacts from
10 the license renewal itself.
11 JUDGE ARNOLD: Okay. Thank you.
12 CHAIR BOLLWERK: All right. Judge Abreu,
13 anything?
14 JUDGE ABREU: No.
15 CHAIR BOLLWERK: All right. Thank you,
16 sir. Why don't we go ahead and move back to Mr.
17 Griggs and his rebuttal.
18 MR. GRIGGS: Well, thank you, Your Honors,
19 and for the opportunity to have another shot here at
20 the end in rebuttal. I want to address some of the
21 things that Mr. Licon indicated and also Mr. Lighty
22 with regard to their interpretation of the cumulative
23 impacts, and they keep referring to Section 4.12. And
24 by the way, you know, CFUR responded with information
25 here because we felt that the Board wanted to get
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1 clarification for what we were trying to say in our
2 petition and in our reply. It is difficult to be able
3 to anticipate all of what one needs when youre
4 representing the public here with a very strict set of
5 rules. But we respect those rules and what we're
6 trying to do is to provide you, as the Board, the
7 decision-making Board, with the information that you
8 need.
9 So we have cited Section 4.12 and we have
10 tried to bring in a discussion of other past, present,
11 and reasonably foreseeable future actions in the
12 vicinity that may result in a cumulative effect. It's
13 possible that our interpretation of this cumulative
14 effect is broader than what the staff seems to thing,
15 which is seemingly very narrow. They seem to believe
16 that this cumulative effect has only to do with
17 radiation sources and perhaps other nuclear plants,
18 you know, in the area. But -- and because of that,
19 they think that the concern is small. That's what's
20 in 4.12.8 in the ER.
21 However, our concern is not for other
22 nuclear facilities but the -- that's not the issue of
23 dispute. Our issue of dispute is the cumulative
24 effect of other pollution sources in the area that
25 combine with radionuclides coming from Comanche Peak
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1 and then produce a serious concern for the public.
2 And I think Judge Arnold's on to that with his
3 question.
4 So we would interpret that a bit more
5 broadly, and I certainly can't believe this is a novel
6 question for the Board that a particulate matter would
7 not be radiated with radionuclides. That's not
8 exactly a brand new discovery, but it is certainly
9 something that is relevant in our area due to the very
10 high level of particulate matter that exists.
11 So I apologize if we weren't able to
12 completely articulate that from the get-go, but we
13 certainly felt like that was what the Board wanted to
14 know today, and that's what we're trying to produce.
15 I might also add that with regard to the
16 contention some case law that I quoted in the amended
17 petition, which I'm sure the Board is familiar with,
18 regarding your responsibilities here determining
19 admissibility. There are several cases that discuss
20 this, about what is required for the intervener to
21 produce, and it's basic. It states the reasons for
22 our concerns, that we need not -- that comes from the
23 Public Service Company vs. New Hampshire case. What
24 is required is the petitioner need not prove its
25 contention at the admissibility stage. The rules only
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1 require that contentions have at least some nominal
2 factual and legal foundation and support and are not
3 intended to be a fortress to deny intervention. That
4 would be the U.S. Department of Energy case and
5 Pacific Gas and Electric, both of which are cited on
6 page four of our amended petition.
7 So Your Honors, I would just ask that you
8 be mindful of the fact that the public definitely
9 wants to deal with this issue. There's a tremendous
10 amount of concern in the community about the
11 continuation of this plant for another 20 years. The
12 cumulative effect over 20 years of radiological
13 releases and the potential carrying those releases on
14 particulate matter to the public, we think this is a
15 serious concern that needs to be explored and
16 certainly addressed in the Environmental Report.
17 Thank you.
18 CHAIR BOLLWERK: All right. Thank you,
19 sir. Any questions from any of the Board members?
20 All right. Thank you.
21 Let's then move to the second issue or
22 question that we raised. This one says that in
23 Contention 2, CFUR claims that smaller earthquakes
24 could contribute to structural cracking and damage at
25 the Comanche Peak facility. And it cites the CFUR
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1 amended petition at 18 and 19.
2 The NRC staff answer noted the CFUR's
3 failure to challenge, quote, without specificity,
4 unquote, how Vistra carried out its aging management
5 evaluations or developed aging management programs
6 citing the NRC staff answer at 25 and 26.
7 In its reply, CFUR maintains that it could
8 not provide such a discussion because it did not have,
9 quote, meaningful, unquote, access to that information
10 citing the CFUR reply at 9.
11 And our questions in that regard is, how
12 did CFUR have, quote, unquote, meaningful access to
13 the relevant aging management material via citations
14 to that material in the Vistra application or
15 otherwise, and how would that material have provided
16 the requisite specificity, quote, unquote, needed to
17 support CFUR's claim? And with regard to that issue,
18 I would note that if a participant -- there was a
19 footnote indicating that if a participant responds to
20 this question, require a reference to material not
21 previously cited in this proceeding or a specific
22 uncited portions of otherwise previously cited
23 material such as the Vistra license renewal
24 application, participant should advise the Board and
25 other participants of those references by a filing
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1 submitted no later than Friday, April 14, 2023. That
2 filing was not to include any arguments regarding the
3 issue or the cited materials. And for the record, I
4 would note that we received a filing from each of the
5 participants last Friday.
6 So for this particular issue or question,
7 the staff has five minutes and Vistra has five
8 minutes. CFUR has five minutes and then the NRC staff
9 has five minutes for rebuttal. So I'll turn to the
10 NRC staff.
11 MR. LICON: Thank you, Your Honor.
12 The petitioners had meaningful access to
13 relevant aging management material needed to plead its
14 Contentions with specificity, because it had access
15 and continues to have access, to public information
16 within the license renewal application itself, or
17 referenced throughout the application and available on
18 the NRC's public website, or in the NRC's online ADAMS
19 system.
20 Most of the application aside from the
21 environmental report, addresses aging management for
22 the Comanche Peak reactors, and challenges to this
23 material could be within the scope of this proceeding.
24 The petitioners also have access to NRC
25 regulations and guidance, approved technical reports,
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1 and other materials cited within the application.
2 If the petitioners had followed up on
3 citations they made to parts of the application
4 outside the environment report, or on other parts of
5 the same Tables cited, the petitioner would have
6 discovered time limited aging analyses, and Aging
7 Management Plans within the license renewal
8 application.
9 And various references to other publicly
10 available material, such as NUREG-1801, which is the
11 Generic Aging Lessons Learned Report, also called the
12 GALL Report.
13 We don't know exactly how they would have
14 challenged that information, or what contentions they
15 might have chosen to submit, but they did, and do
16 still, have access to it.
17 So, to help us get our bearings throughout
18 this explanation or example, for, that we're going to
19 go through, I will be referring to specific page
20 numbers in the license renewal application.
21 We'll be using the version located on the
22 NRC's public website, and referring to the.PDF page
23 numbers.
24 But our April 14 filing also refers to the
25 specific pages by the pagination the applicant uses,
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1 as well.
2 Or here to what petitioners did cite, and
3 what they had access to and could have cited, if they
4 wish to develop an aging management contention.
5 So, the methodology the applicant used to
6 identify plant structure, systems, and components for
7 aging management review, is described in section 2 of
8 the application.
9 The applicant mentioned this in their
10 filing last Friday, but the petitioners do not refer
11 to this information, or any of the sources described
12 in it.
13 Many of which can be found in the NRC's
14 ADAMS system, under ML or accession numbers that are
15 in the application.
16 So, it does not look as though the
17 petitioners intended to challenge the applicant's
18 methodology, to identify things for aging management
19 review.
20 The petitioners do cite to information
21 related to the potential cracking of various
22 structure, systems, and components in Section 3 of the
23 applicant, which is called Aging Management Review
24 Results.
25 They cite this information from a
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1 proposition that quote, the license renewal
2 application documents, cracking, and various
3 components, end quote.
4 However, first the petitioner does not
5 read the sections it cites correctly. Section 3 of
6 the license renewal application is not documenting
7 observed cracking, it is noting areas for which aging
8 management will be implemented, to manage cracking
9 through things like prevention, mitigation, detection,
10 or et cetera.
11 More importantly, with respect to
12 petitioner's claim about meeting full access, the
13 application does not just describe areas of the plant
14 where aging management will be used.
15 It directs readers to where in the
16 application, the relevant Aging Management Programs
17 can be found.
18 The application even includes hyperlinks
19 to sections of the application, that explains the
20 Aging Management Program to be implemented, and how
21 the proposed Aging Management Programs were consistent
22 with NRC approved Aging Management Programs, or how
23 they might deviate.
24 But the petitioner does not reference any
25 of this information.
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1 So to trace one example, starting from the
2 petitioner's own citation, the amended petition cites
3 to the second and third rows of the table titled Table
4 3.1.2-2, Reactor Vessels Internal Summary of Aging
5 Management Evaluation, on page 418 of the license
6 renewal application.
7 However, they did not read the Tables
8 correctly, or continue on by using the hyperlinks in
9 the column labeled, Aging Management Program, which
10 would link to the pressurized water reactor vessel
11 internals Aging Management Program on page 1439, and
12 the water chemistry Aging Management Program on 1417.
13 The remainder of petitioner's citations to
14 Section 3 of the application function in the same way.
15 And, our April 14 filing follows those hyperlinks for
16 those, as well.
17 But the petitioner has not referenced or
18 used this information, which was available to support
19 its claims.
20 Our April 14 filing also includes an
21 example that the petitioner didn't cite, but that
22 explicitly addresses seismic issues as related to
23 fatigue analysis of plant structure, systems, and
24 components.
25 That analysis begins on page 1015. And,
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1 the links associated with it take the reader to both
2 Aging Management Programs, and time limited aging
3 analyses for various plant components.
4 However, the petitioners have not
5 addressed any of this material either.
6 CHAIR BOLLWERK: In terms of the Aging
7 Management Program, is there any difference in how the
8 facility would treat, or Vistra would treat cracks
9 that were caused by things like perhaps thermal shock,
10 or issues like that, as opposed to how they would
11 treat cracks and damages relating to earthquakes?
12 MR. LICON: No, Your Honor.
13 Regardless of the mechanism, the Aging
14 Management Programs would still find the cracking and
15 manage it accordingly.
16 CHAIR BOLLWERK: All right. I think we've
17 come to the end then, thank you.
18 All right, counsel for Vistra?
19 MR. LIGHTY: Thank you, Your Honors.
20 The Board's query here really has two
21 parts. The first pertaining to access to information,
22 and the second to support for CFUR's claim. And I'll
23 address those separately.
24 As to the first query, CFUR's suggestion
25 that the aging management review was secret, is simply
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1 incorrect.
2 We agree with the NRC staff, that all of
3 the information needed to comply with 10 CFR Section
4 54.21 alpha, the aging management review, was
5 presented or referenced in the LRA itself, which has
6 been publicly available since October of 2022.
7 And, there were no non-public or
8 proprietary attachments, to the LRA.
9 Specifically, Section 1.5 provides a
10 roadmap to the general structure of the LRA. And it
11 points to information such as Section 2, which covers
12 the scoping and screening process.
13 And Section 3, which covers the aging
14 management review results. And Appendix B, which
15 presents the Aging Management Programs, or AMPs
16 themselves.
17 So ultimately, CFUR's claim that it did
18 not have access to this information, is demonstrably
19 incorrect.
20 As to the second part of the query, the
21 Board asked how that information could have provided
22 the requisite specificity needed to support CFUR's
23 claim.
24 To answer that question in the literal
25 sense, that material could not have supplied support
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1 for CFUR's claim, because there is no support for
2 CFUR's claim.
3 And in fact, those materials prove the
4 exact opposite of CFUR's claim, which is precisely why
5 the contention is inadmissible.
6 Taking a broader view, if the Board's
7 query was really aimed at understanding what specific
8 information CFUR should have reviewed in formulating
9 its claim, then the answer depends on what exactly
10 that claim is, or would be, which is still not
11 entirely clear.
12 In its reply at page 7, CFUR appears to
13 cast this argument as a contention of omission, that
14 the LRA fails to account for effects that earthquakes
15 could have on cracking of plant piping, structural
16 supports, concrete, and foundations.
17 But if CFUR is trying to attack the
18 plant's seismic basis generally, which it certainly
19 sounds like based on that quote, then relevant
20 information would not necessarily be found in the
21 aging management material, because the plant's seismic
22 basis more broadly, is beyond the scope of this
23 proceeding as explained at pages 18 to 20 of Vistra's
24 answer.
25 Alternatively, if CFUR was attempting to
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1 argue that the LRA omits consideration of age related
2 cracking, which would be in-scope, then the
3 information refuting that claim is found on the very
4 pages that CFUR cited.
5 As explained in our answer at pages 20 to
6 21, CFUR simply misunderstood those pages as somehow
7 documenting observed cracking at the plant. But those
8 pages say no such thing.
9 Based on a plain reading of the titles of
10 the tables that CFUR cited, page 418 presents part of
11 the aging management evaluation for reactor vessel
12 internals.
13 Its citation to pages between 1029 and
14 1049 summarize Aging Management Programs for the
15 containment building, and earth and water control
16 structures.
17 A proper reading of those Tables is
18 informed by the methodology discussions, throughout
19 the LRA.
20 And had CFUR reviewed that information,
21 perhaps it would have understood that the pages it
22 cited prove the exact opposite of its claim that the
23 LRA does in fact, consider age related cracking of
24 piping, concrete, and so forth.
25 And lastly, if CFUR wanted to challenge
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1 the sufficiency as opposed to the omission of this
2 material, then it also should have reviewed the
3 material cross-referenced on those pages.
4 For example, CFUR's citation to page 418
5 cross-references the PWR vessel internals ANP at
6 Section Bravo.2.3.7, as the program that will manage
7 any future cracking of the cited components.
8 To be clear, CFUR has not advanced a
9 sufficiency argument as to that ANP, or any other ANP
10 in any pleading, or at oral argument today. But we
11 mention this scenario for the sake of completeness,
12 and context.
13 Ultimately, the LRA is chock full of
14 information about the aging management review that
15 CFUR could have, but did not engage with, or dispute
16 in its pleadings.
17 And with that, we're happy to take any
18 questions.
19 CHAIR BOLLWERK: Let me ask you the same
20 question I asked staff, which is, is a practical
21 matter the way that the Aging Management Program
22 treats cracking.
23 Does it make any difference what the
24 source of the cracking is, whether it's seismic, or
25 some other source?
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1 MR. LIGHTY: It does not. A monitoring
2 program that would look for cracking, looks for
3 cracking, doesn't distinguish the origin of the
4 cracking when it is, the program has an element for
5 observing cracks.
6 CHAIR BOLLWERK: All right. Any other
7 questions from the Board members?
8 (No audible response.)
9 CHAIR BOLLWERK: All right, Mr. Griggs,
10 then we'll hear from you, please, sir.
11 MR. GRIGGS: Thank you, Your Honor.
12 I would like to respond to just a couple
13 of things the attorneys brought up, and then I have a
14 statement, as well.
15 Mr. Licon mentioned that several
16 references that they had found, that supported the
17 information that we supposedly should have found.
18 But my question is, with regard to the
19 seismic analysis, you know, is this really the seismic
20 analysis that is done in general?
21 Or have they really considered the local
22 area, and some of the concerns that we raised?
23 I mean one of the reasons that we raised
24 this contention was because of the novel situation we
25 have, in and around the Barnett Shale geographical
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1 area.
2 We have a situation that we referred to in
3 our petition, in nearby Lake Lewisville, where several
4 liniments faults were found on an area that the Bureau
5 of Land Management was hoping to put fracking leases.
6 The determination by some experts was,
7 this would not be good because of the injection wells
8 would potentially cause a disaster if this lake were
9 to, the dam were to breach.
10 I mean, there's some serious concerns in
11 the Barnett Shale area, near where Comanche Peak is,
12 that I'm not sure have been fully considered.
13 Even though as counsels say, there were
14 measures taken in their LRA, that dealt with this. My
15 concern is that it may not have been specific enough.
16 I would bring your attention to our
17 petition. I'm not going to read it or go through it,
18 because we think we clearly set out our contention
19 there.
20 But I would just remind you that the
21 United States Geological Service geophysicist, was
22 quoted in our petition.
23 And he basically said that the frequency
24 of Texas quakes, earthquakes that is, have been
25 increasing since 2015.
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1 Noting that as an amount of, that with the
2 amount of boiling gas production has increased,
3 there's been a corresponding increase in the rates of
4 waste water injection wells in the area. And, so that
5 goes hand in hand.
6 And obviously it's pretty well documented
7 that injection wells do increase the rapidity of
8 earthquakes. I know I personally have felt several of
9 them, and I live a lot further than 50 miles away.
10 So, our CFUR members and others in the
11 public, are seriously concerned about the
12 seismological issue, seismologic issue, and we
13 seriously believe that the environmental reports
14 should, or this LRA should more detail consider these
15 concerns about seismic activity in the north Texas
16 area.
17 CHAIR BOLLWERK: All right.
18 Well, let me ask you a specific question.
19 So, you said before you had, you didn't have access to
20 this information. Are you still contending you
21 didn't?
22 MR. GRIGGS: Well, we may have had access
23 to some of the information that counsel decided to use
24 and to refute our concern, but I'm still not sure we
25 have the information we need to address the concerns
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1 we have.
2 And maybe it's not there. Maybe counsel
3 Lighty is correct, that you know, we did indicate that
4 there was an omission of the information that, that we
5 were looking for.
6 So, maybe it isn't accessible to us. I
7 appreciate counsel putting forth the numerous
8 references to their LRA, where some of our concerns
9 could be addressed.
10 But I keep, I repeat that this is a novel
11 consideration in the Barnett Shale area. And I just
12 hope that the analysis that has been done, was not a
13 general analysis that is typically done for potential
14 seismic activity.
15 But that the actual seismic history of
16 this area, and particularly the Karst Zone that was
17 referred to in one of our exhibits, was carefully
18 analyzed. I'm not sure that it was.
19 So that's the basis of our concern, and I
20 would appreciate it if the Board would consider our
21 Contention, and allow us to prove this in a hearing
22 that there's some serious concerns that have not been
23 addressed.
24 CHAIR BOLLWERK: All right.
25 Any of the Board members have questions?
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1 (No audible response.)
2 CHAIR BOLLWERK: All right, thank you, sir.
3 Appreciate it.
4 MR. GRIGGS: Thank you.
5 CHAIR BOLLWERK: From the staff then on
6 rebuttal, if you have any.
7 MR. LICON: Thank you, Your Honor.
8 We do want to respond just to one thing
9 that counsel for the petitioner has said.
10 So, we do want to clarify that the
11 application itself doesn't evaluate the seismic hazard
12 for the site.
13 But this is because it's part of the
14 current licensing basis for the plant, which would be
15 outside the scope of a license renewal proceeding.
16 And this is discussed in further detail in
17 Section B3 of our pleading.
18 But more generally, in regard to the
19 meaningful access claim the petitioner raised in its
20 reply.
21 We would also like to say, like to
22 recognize that the Commission has long stated for
23 example in the 2001 Turkey Point license renewal
24 proceedings, CLI 01-17 that's cited throughout our
25 brief, that the petitioners have an ironclad
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1 obligation to examine the application and publicly
2 available information, that could serve as a
3 foundation for a contention.
4 So, the relevant information that the
5 applicant could have used to challenge the license
6 renewal application, was publicly available for the
7 petitioner.
8 Be it in the application itself, or cited
9 to within the application, and publicly available on
10 the NRC website, or in ADAMS.
11 But the petitioner has apparently not
12 examined it here and as a result, the petitioner has
13 not pled the portions of contention to, that reference
14 these materials outside the environmental report with
15 the specificity required by NRC regulations.
16 And thus, it can't be admitted.
17 Thank you.
18 CHAIR BOLLWERK: What is the staff's
19 position that this Contention is concluded by, is
20 under Table B1, category 1, issue for severe
21 accidents?
22 MR. LICON: So -- our apologies. I think
23 we seem to be having technical.
24 CHAIR BOLLWERK: That's all right.
25 (Telephonic interference) seismic events
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1 or analyzed in severe accidents?
2 MR. LICON: Can I have a moment to confer
3 with my staff?
4 (Pause.)
5 CHAIR BOLLWERK: Is he still connected?
6 Mr. Licon, are you still connected?
7 (No audible response.)
8 (Pause.)
9 MR. LICON: Am I?
10 CHAIR BOLLWERK: We're not seeing you.
11 MR. LICON: Sorry, can you hear me?
12 CHAIR BOLLWERK: Yes, now, yes, we can.
13 Now we can see you, as well.
14 MR. LICON: Okay.
15 Sorry about that. Despite my laptop being
16 plugged in, apparently it decided now would be the
17 perfect time to crash.
18 Yes, so I believe in response to your
19 question, the, first of all, the petitioner hadn't
20 raised a severe accidents issue in their petition.
21 But to the extent about any of their
22 claims that you know, smaller earthquakes have been
23 increasing, this isn't something that the staff would
24 wait to handle, or review.
25 They wouldn't wait until license renewal
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1 to look at this. This would be part of the current
2 licensing basis. Yes, it would be looked under the
3 current licensing basis.
4 CHAIR BOLLWERK: All right, thank you.
5 MR. LICON: Thank you.
6 CHAIR BOLLWERK: Mr. Griggs, your turn for
7 rebuttal.
8 MR. GRIGGS: Well, I think that the --
9 (Simultaneous speaking.)
10 CHAIR BOLLWERK: I'm moving on to the next
11 question already. Okay, my fault.
12 MR. GRIGGS: And I believe we're ready for
13 number 3, Your Honor.
14 CHAIR BOLLWERK: I think you're absolutely
15 right. We're ready for Issue 3. I apologize.
16 All right, you will get a chance for
17 rebuttal on this one, though.
18 So question 3 is, in the NRC's ongoing
19 rulemaking to update the 2013 Generic Environmental
20 Impact Statement for Reactor License Renewals, which
21 is referenced in the NRC staff's answer at page 11,
22 note 54, the agency has proposed that climate change
23 impacts as they concern 1) greenhouse gas emissions
24 from continued facility operation, and 2) the
25 environment resource areas, e.g. land use, air
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1 quality, water resources, that may be affected by
2 continued plant operations during license renewal
3 would be considered as Table B1, Category 1, and
4 Category 2 issues, respectively.
5 With the former not subject to
6 adjudicatory challenge absent the submission of a
7 section 2.335 waiver petition.
8 And the reference to the proposed rule is
9 renewing nuclear power plant operating licenses -
10 environmental review at 88 Federal Register 13329,
11 page 13345, which was published on March 3, 2023.
12 So the question that we pose is, given the
13 Commission's previous recognition that licensing
14 boards should not accept as individual license
15 proceedings, contentions that are subject of general
16 rulemaking by the Commission, what is the impact, if
17 any, of this proposed rule on the admissibility of
18 CFUR's Contentions 3 and 4?
19 And the reference for that Commission
20 precedent is the Duke Energy Corporation case, CLI 99-
21 11 at 49 NRC 328, page 345, a 1999 case, which in
22 turn, cited two Atomic Safety and Licensing Appeal
23 Board decisions.
24 The Potomac Electric Power case at ALAB-
25 218, 8 AEC 79 at page 85, a 1974 case, and the Duke
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1 Power Case at ALAB-813, 22 NRC 59 at page 86, a 1985
2 case.
3 And we have CFUR with 5 minutes; the staff
4 with 5 minutes; Vistra with 5 minutes; and, then
5 CFUR's rebuttal at 5 minutes.
6 And one of the reasons we pose this
7 question frankly, is because this was raised by the
8 staff indicating the potential for impacting
9 Contentions 1 and 3.
10 And it seemed to the Board as well, as 4,
11 but you had no response. And we wanted to obviously
12 give you a chance to say something about it before
13 applying that policy to you. Or to your petition.
14 MR. GRIGGS: Well, thank you, Chairman
15 Bollwerk. That is kind of you to give us this
16 opportunity on this.
17 I think that I'd like to start by actually
18 going to the new GEIS, and dealing with a definition
19 since we're dealing with it, and its effect on the
20 current situation.
21 Of course, I realize you're still in the
22 rulemaking process, but it is imminent so I think it
23 certainly is something that we should consider.
24 In Section 3.12, I believe it's on page 48
25 of the new GEIS, the proposed one, climate change can
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1 have according to the statement, climate change can
2 have additive effects on the environmental resource
3 conditions, that may also be directly impacted by
4 continued operations and refurbishment during the
5 license renewal term.
6 The effects of climate change can vary
7 regionally, and climate change information at the
8 regional and local scale, is necessary to assess
9 trends and the impacts of human environment for a
10 specific location.
11 The impacts of climate change on
12 environmental resources are location specific, and
13 cannot be evaluated generically. This is a Category
14 2 issue. And I, simply a quote from the GEIS.
15 Now, cumulative effects are defined as,
16 cumulative effects or impacts are those effects that
17 result from incremental effects of the proposed
18 licensee renewal action, when added to the effects of
19 other past, present, and reasonably foreseeable
20 actions, regardless of what agency federal or non-
21 federal, or person undertakes such actions.
22 The cumulative effects of continued
23 operations and refurbishment associated with license
24 renewal, must be considered on a nuclear plant
25 specific basis.
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1 The effects depend on regional resource
2 characteristics, the incremental resource specific
3 effects of license renewal, and the cumulative
4 significance of other factors affecting the
5 environment resource.
6 Again, it says this is a Category 2 issue.
7 So, our contention here is that climate
8 change is a major issue of course, all across the
9 country. But it's especially true in this area.
10 I don't know how much you all have heard
11 in Washington about this exceptional drought we're
12 having in Texas, but it is pretty serious.
13 We have a water shortage. We have
14 concerns about water literally drying up. We have
15 lakes that have dried up here.
16 Obviously, water is critical for the
17 function of a nuclear power plant. And, we've noticed
18 that the GEIS takes climate pretty seriously.
19 But it's missing a couple of things. One,
20 the impacts of climate change on the nuclear plant.
21 I mean, there's concern about what the nuclear plant
22 contributes to climate change, and it should.
23 But there should be certainly, concerns
24 about what the climate is doing to our nuclear
25 facilities.
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1 Because the drought is missing, that is a
2 concern. There is a wonderful map and chart that is
3 on page 264 of the GEIS, which shows the Great, the
4 southern Great Plains. This is an important area
5 here.
6 But what is missing is a discussion of the
7 Great Plains climatological situation currently, with
8 regard to the exceptional drought.
9 I won't go into all the concerns we have.
10 It's very clearly set forth in our Contentions 3 and
11 4.
12 But I would just ask this Board to
13 consider under the circumstances, that climate change
14 being as big of an issue as it is with the
15 administration, with the latest guidance for climate
16 change being considered, which of course I realize
17 isn't directly relevant to this proceeding.
18 There should be more attention paid to
19 climate change effects on specific areas of the
20 country, where a license renewal is being considered.
21 And so that's why we raised Contentions 3
22 and 4, because we believe that that is a serious
23 concern.
24 And those members of the public who we
25 represent, asked us to make sure that we raise that
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1 issue with you.
2 Thank you.
3 CHAIR BOLLWERK: Let me ask you a specific
4 question about Contention 4.
5 There really are two parts to this
6 analysis potentially. One is the greenhouse gas
7 emissions that are put forth by the plant, and the
8 other then is the question of how the changing climate
9 affects plant operations.
10 And as you pointed out, that is a Category
11 2 issue under Table B1, under the proposed Rule, which
12 would allow in fact, for a discussion. Would require
13 a site-specific discussion.
14 But for greenhouse gas emissions from the
15 facility itself, that is a Category 1 issue. And, it
16 would seem to be precluded if the proposed Rule went
17 through as it's currently drafted. At least without
18 filing a waiver petition under Section 2.335.
19 Is there any reason why the Commission's
20 policy wouldn't apply to that portion of Contention 4,
21 that does suggest that greenhouse gas emissions need
22 to be discussed?
23 MR. GRIGGS: Well, Your Honor, I certainly
24 wouldn't want to preclude a portion of our own
25 argument, but I will tell you this.
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1 The concern that we have is the effect of
2 climate change on the plant itself, and its function
3 going forward. Perhaps more so than what the plant
4 would contribute to climate change.
5 There is two sides of the same coin, but
6 if you're asking for our concern, it is certainly more
7 on the effect of climate change, that climate change
8 would potentially have on the future operation of the
9 plant over an additional 20 years of its extension.
10 And a lot of that does have to do with
11 where it is located, and with issues that are very
12 plant-specific to the Comanche Plant operation.
13 CHAIR BOLLWERK: All right, thank you, sir.
14 MR. GRIGGS: Thank you.
15 CHAIR BOLLWERK: All right, let's turn to
16 the staff then. And before the staff gets started, I
17 just wanted to check something with you.
18 I know that the, your statement on page 11
19 and footnote 54, indicated that you didn't feel that
20 the rule change would have any impact on your approach
21 to this, these contentions. Basically, you still felt
22 that they were inadmissible.
23 But that I guess I wanted to raise it in
24 a slightly different context, which is, what would be
25 the impact of this rulemaking, relative to the staff's
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1 Supplemental Environmental Impact Statement if in
2 fact, the rule became effective before the application
3 was granted?
4 Specifically, if you look at the NRC
5 website, it indicates that the final rule was supposed
6 to be issued in 2024, in April.
7 And the Comanche Peak license renewal
8 schedule, the final SEIS by the staff, Supplemental
9 Environmental Impact Statement by the staff, is not
10 due till March 2024.
11 And the NRR licensing decision by
12 September of 2024.
13 So, if this rule is in effect by the time
14 you all have to make a decision, does it affect
15 anything you're going to do in terms of the final
16 Environmental Impact Statement?
17 Assuming it reads the same way it reads
18 now?
19 MR. LICON: Thank you, Your Honor.
20 I do need a moment to confer with my
21 technical staff, to see how the schedule may or may
22 not impact it.
23 Once again, thank you.
24 (Pause.)
25 MR. LICON: Thank you, Your Honor.
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1 So, the staff plans on evaluating the
2 Supplemental Environmental Impact, issuing the
3 Supplemental Environmental Impact Statement in
4 accordance with the, with the 2013 GEIS.
5 But what's important is that the staff
6 already does analyze these greenhouse gas impacts, but
7 what the new Rule does is really just re-categorize
8 where, or codify this, this evaluation.
9 Was that responsive to your question?
10 CHAIR BOLLWERK: Well, let's get a little
11 more specific.
12 So, why, you took the position I guess, in
13 your, in footnote 54, that the staff, the 2023
14 proposed GEIS Rule, would bar only Contentions 1 and
15 3.
16 Why not Contention 4, at least part of
17 Contention 4 as I discussed with Mr. Griggs?
18 MR. LICON: Okay.
19 So, we, the staff didn't rely on this
20 argument for Contention 1. We really looked at it
21 more for Contention 4 first of all, so we wanted to
22 clear up that understanding today, as well.
23 And we wanted to say that you know, the
24 new Category 1 and 2 issues in the proposed Rule, only
25 really covers the same subject area as one of the
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1 petitioner's claims in Contention 4, which has to do
2 with the greenhouse gas emissions from plant
3 operations.
4 So.
5 CHAIR BOLLWERK: So, right now there is in
6 the ER, the Section 3.4.4 at page 3-29, there's
7 discussion of greenhouse gas emissions.
8 Which is in fact, consistent with policy
9 when the 2013 GEIS was issued, which basically said we
10 don't have enough information about climate change,
11 but we want applicants to go ahead on a site-by-site
12 basis, and talk about both emissions and about
13 impacts, in terms of climate change on a particular
14 facility. So, all that is in there.
15 But I take it potentially anyway, under
16 Contention 4 if he wants to raise greenhouse gas
17 emissions, would this Rule, proposed Rule, apply to
18 preclude that under the Commission policies, and
19 describe?
20 MR. LICON: Yes, Your Honor.
21 Okay, so it looks like in our pleading
22 where we cited this Rule, that looks like it was
23 actually an editing error and Contention 4 was added
24 after, after the amended petition where put forth.
25 So, we did mean for that to apply to
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1 Contention 4, as well.
2 CHAIR BOLLWERK: Okay.
3 All right, so let me then ask you a
4 procedural question.
5 So, let's assume just as a thought issue,
6 that CFUR actually wanted to raise an emissions
7 question about greenhouse gas emissions.
8 Which under the proposed Rule is Category
9 1 now, and requires a waiver petition. Now, the Rule
10 was issued after CFUR filed its petition.
11 So in theory, they could have amended
12 their petition. What if they'd come in and filed a
13 waiver petition as part of their Contention on a
14 greenhouse gas emissions?
15 Would that be appropriate? Can they ask
16 for a waiver of a Rule that isn't in effect? And if
17 that's the case, how does this whole Commission policy
18 get carried forward?
19 What are we dealing with here?
20 MR. LICON: So, for that question, I would
21 refer, and I apologize but I would like to refer to a
22 Board decision that, that we haven't cited. And I
23 have the citation for you.
24 It's LVP-82-1A. And, it looks like the
25 Board considers certain factors when deciding whether
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1 to, to apply this policy.
2 And one of those is whether the issue is
3 something that is you know, more specific to the plant
4 at issue. Or if it is more generally applicable.
5 So in that case, it had to do, the
6 specific issue related to whether Perry Nuclear Power
7 Plant needed to use, or should use a certain automated
8 system.
9 And, the Board found that that issue was
10 something that was rather specific to that plant.
11 But with the greenhouse gas emissions
12 issue, that is, and since the staff even, or the
13 Commission in the proposed Rule finds that as a
14 Category 1 issue even, if that's really something
15 that's more generally applicable.
16 So, the policy kind of leans towards
17 precluding it because it's a more general issue.
18 CHAIR BOLLWERK: But again procedurally,
19 how does the petitioner raise this? Can you file a
20 waiver for a Rule that isn't in place?
21 Or when do you file your waiver? Do you
22 have to wait till the Rule comes in and file a late
23 file petition (telephonic interference)?
24 MR. LICON: Procedurally --
25 CHAIR BOLLWERK: And, I guess we don't use
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1 the word late file anymore. But nonetheless, a
2 petition past the deadline for filing an initial
3 petition.
4 MR. LICON: So, I believe that the 2.335
5 waiver process only allows challenges to a current
6 Rule. So the, so I am not sure, I am not certain
7 about the answer to your question.
8 But we can certainly look at this question
9 for you, as well, and amend this.
10 CHAIR BOLLWERK: I mean, and more broadly
11 and maybe Judge Abreu and I have talked about this.
12 I mean, this policy was put in place back when the
13 AEC, well, the NRC was very young, just after, just
14 before the AEC, it took over from the AEC.
15 There weren't a lot of rules out there in
16 some instances. So obviously, if there wasn't a rule
17 of any kind to cover something, maybe it was a good
18 idea that the adjudicatory process step back and take
19 a pause.
20 But this, that certainly isn't the case in
21 this instance. There's a Rule that exists, and to
22 simply say we're going to stop now because there's a
23 new proposed Rule, does that really, is that carrying
24 forth the policy if the Commission was really trying
25 to implement in the earlier cases?
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1 MR. LICON: Well, Your Honor, we're
2 certainly not, not suggesting that this is an
3 unlimited principle.
4 But if the petitioner wishes to challenge
5 something that is the subject of the, of something
6 that is going to be considered in rulemaking.
7 We're currently in rulemaking. The proper
8 procedure to challenge that, or participate, is to
9 participate in that rulemaking. Not an individual
10 adjudication.
11 CHAIR BOLLWERK: All right, thank you.
12 I've sort of taken up all your time. Is
13 there anything that you want to, want to say that we
14 haven't covered?
15 MR. LICON: No, Your Honor, thank you.
16 CHAIR BOLLWERK: All right.
17 Judge Abreu has a question, I'm sorry. Go
18 ahead.
19 JUDGE ABREU: This is Judge Abreu.
20 Just to step back to something you said a
21 little bit earlier. If I heard you correctly, you
22 said that even though there are these issues that were
23 maybe covered differently in the new GEIS, all of the
24 topics are actually covered in the old GEIS, but just
25 in different places.
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1 And so there's not information that hasn't
2 been dealt with under the old GEIS.
3 MR. LICON: Yes, Your Honor, I believe I
4 misspoke there.
5 So, not, there are certain things that are
6 not. So, I think I have made this statement but I,
7 and I corrected myself to say codified, rather than
8 considered.
9 So, I didn't mean to say that something is
10 considered in the, in the old GEIS.
11 JUDGE ABREU: Well, perhaps I misspoke. In
12 the sense of it's either covered in the GEIS, or
13 you've dealt with it within the application, that
14 there are no topics sort of left out there
15 unconsidered.
16 MR. LICON: Right.
17 And the point that I, that's correct, Your
18 Honor. And that the point I wanted to just make here,
19 is that this policy should really just apply to the
20 small part of Contention 4 about, about greenhouse gas
21 emissions.
22 JUDGE ABREU: Thank you.
23 MR. LICON: Thank you.
24 CHAIR BOLLWERK: Further? Judge Arnold?
25 No?
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1 All right, then let's move on to counsel
2 for Vistra.
3 Thank you.
4 MR. LIGHTY: Thank you, Your Honor.
5 As noted in our answer, Contentions 3 and
6 4 are inadmissible on multiple grounds, including
7 because the LRA discusses both GHG emissions, and
8 climate change to the full extent required by current
9 regulations. Consistent with current guidance.
10 And, CFUR does not acknowledge those
11 current regulations or guidance. It does not
12 acknowledge the relevant LRA discussions, and it
13 certainly does not compare and contrast the two, which
14 is the bare minimum for an admissible contention.
15 And, the contentions should be rejected on
16 those grounds alone. So, adjudication of the
17 contentions does not necessarily require the Board to
18 resolve the question about the effect of the proposed
19 rulemaking on this proceeding.
20 That said, we do agree that the pending
21 rulemaking potentially provides yet another ground to
22 reject CFUR's claims regarding GHG emissions, because
23 the NRC is undertaking a rulemaking to address that
24 very issue in a particular way, on a generic basis, as
25 a Category 1 issue.
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1 So, CFUR's claims, particularly those in
2 Contention 4, purporting to challenge the ER's
3 discussion of greenhouse gasses, are impermissible and
4 beyond the scope of this proceeding for the reasons
5 cited in the Oconee case.
6 Indeed, the operative facts here are
7 essentially identical to the Oconee case. In both
8 proceedings, the Commission initiated a rulemaking to
9 establish a new Category 1 issue.
10 The rulemaking was, and is expected, to be
11 completed prior the completion of the license renewal
12 proceeding.
13 There have been no delays to date, in the
14 rulemaking process. And, the proposed Rule already
15 has been published.
16 In those circumstances, the Commission in
17 the Oconee order said quote, if petitioners are
18 dissatisfied with our generic approach to the problem,
19 their remedy lies in the rulemaking process, not in
20 this adjudication, end quote.
21 In some, although the pending rulemaking
22 provides a basis to reject CFUR's GHG claims, we
23 continue to believe that a decision rejecting
24 Contentions 3 and 4 would be more robust if the Board
25 also acknowledges that neither contention raises a
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1 genuine dispute with the LRA, because it doesn't
2 engage with the current regulations, or show any
3 deficiency thereunder.
4 I did want to circle back briefly to Judge
5 Abreu's question and note our agreement with staff
6 counsel, that there are no topics uncovered related to
7 greenhouse gas emissions, or climate change, from the
9 These are topics that are considered under
10 either the current Rule, or the proposed future Rule.
11 It's just a bit of a reorganization of the content and
12 a determination that some of that content will be,
13 will be addressed as a Category 1 generic issue,
14 rather than addressed on a plant specific basis.
15 And I know that earlier, counsel for CFUR
16 noted that their primary concern here relates to water
17 availability, and the effects that climate change may
18 have on that.
19 And as noted in our answer pleading, ER
20 Section 4.12.4.3, addresses that issue squarely. CFUR
21 doesn't acknowledge it; doesn't dispute it; and,
22 doesn't challenge anything in it.
23 And so for all of those reasons, we think
24 both contentions should be rejected regardless of how
25 or whether, the Board resolves this question regarding
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1 the generic rulemaking.
2 CHAIR BOLLWERK: All right, thank you.
3 Do you have any thoughts on the procedural
4 question I raised, which is how in the world, if CFUR
5 did want to contest the greenhouse gas emissions, it
6 would do so given the Rule isn't yet in effect?
7 MR. LIGHTY: Yes, Your Honor, I think if
8 you look to the Oconee case, the language that's cited
9 on page 345, is that the licensing board should not
10 accept an individual licensing proceedings contentions
11 which are, or are about to become, the subject of a
12 general rulemaking by the Commission.
13 So, it doesn't appear there's a bright
14 line rule that requires a rulemaking to actually be in
15 motion, to be proposed.
16 In this case, the Commission issued a
17 staff requirements memorandum directing the staff to
18 update the GEIS a year ago. I believe it was last
19 April.
20 And so, petitioners have been on notice of
21 the fact that this is about to become the subject of
22 a rulemaking for some time now.
23 And, I do understand that the proposed
24 Rule was published on March 3 of this year versus the
25 March 1 filing of the amended petition.
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1 But I would still aver that it falls
2 within the ambit of about to become the subject of a
3 rulemaking.
4 CHAIR BOLLWERK: All right, thank you.
5 Any other questions from the Board
6 members?
7 JUDGE ABREU: No.
8 CHAIR BOLLWERK: All right, let's then
9 allow CFUR to have their rebuttal time.
10 MR. GRIGGS: Thank you, Your Honor.
11 I might start by addressing the issue
12 about participating in the process.
13 There was a hearing in I believe it was
14 West Lake, Texas, in the Fort Worth area, it seemed
15 like just a few weeks ago, sometime in March on this
16 proposal.
17 And, many of our members actually went and
18 attended. So, we have been engaged in that discussion
19 on the new GEIS.
20 But I would just thank the Board for
21 asking these questions. I appreciate your concern
22 about process.
23 I'm a former federal government attorney
24 myself with the FTC, and am quite familiar with the
25 bureaucracy.
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1 And, worked with ALJs for many years. I
2 really appreciate your interest in the NRC getting
3 this right.
4 And so, I would encourage you to think
5 about this with regard to the greenhouse gasses. And
6 certainly CFUR would be amenable to going with a
7 procedural fix for this problem for our case, given
8 the timing of when we filed, and the issue with the
9 new GEIS coming.
10 If we were to be allowed some sort of an
11 exception to file the waiver, we might consider doing
12 that.
13 But what we would certainly like to do, is
14 to not have our chance on this contention end today,
15 for a number of reasons.
16 We have tried to make our case with both
17 Contentions 3 and 4, and what we also put in our
18 reply.
19 And, I would just sort of end on the case
20 law. Thank goodness we have the NRC case laws to fall
21 back on, that doesn't completely eliminate a
22 petitioner's opportunity for all of the reasons that
23 there, the contentions are thrown out.
24 At least we have case law that shows that
25 the contention rules require only that contentions
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1 have at least some minimal factual and legal
2 foundation for support, which I certainly think we
3 have provided.
4 And I certainly, and sometimes feel like
5 there is a fortress to deny intervention, but it
6 sounds like this Board is very concerned about
7 fairness here.
8 And, I would encourage you to consider an
9 option that might allow this contention to go forward.
10 Thank you, Your Honor.
11 CHAIR BOLLWERK: All right, thank you very
12 much.
13 Any questions further?
14 JUDGE ABREU: No.
15 JUDGE ARNOLD: No.
16 CHAIR BOLLWERK: All right, I think with
17 that we're going to conclude this oral argument,
18 regarding the admissibility of petitioner CFUR's four
19 Contentions.
20 On behalf of Judges Abreu and Arnold, I'd
21 like to express our appreciation for, to counsel for
22 the petitioner CFUR, the applicant Vistra, and the NRC
23 staff, for their obvious efforts in preparing for, and
24 participating in this conference.
25 You can be assured that your filings and
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1 the arguments will be given serious consideration by
2 the Board.
3 And we will seek to render a decision
4 regarding the efficacy of CFUR's hearing petition,
5 consistent with 10 CFR, Section 2.309J with the 45-day
6 period for rendering a ruling, beginning with the
7 conclusion of this initial pre-hearing conference.
8 Additionally, the Board would like to
9 express its appreciation to those who have provided
10 such superb administrative support for today's
11 conference, including our court reporter Sam Wojack,
12 and a number of members of the licensing board panel's
13 administrative staff.
14 In that regard, our thanks to panel
15 administrative assistant Sara Culler, who among other
16 things took care of getting the NRC website notice
17 posted, and to panel law clerks Noel Johnson, who
18 served as our timekeeper today; to Emily Newman, and
19 Allison Wood, who served as the Web, the Webex, excuse
20 me, master of ceremonies for today's conference.
21 And speaking of Webex, of course we
22 couldn't have gotten together today at all, without
23 the usual excellent IT support from Andy Welkie, who
24 seems able to overcome any IT challenge. I mean, any
25 IT challenge, with a cool head and a steady mouse.
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1 Along with Joe Deucher, as his backup for
2 the virtual conference.
3 So Judge Arnold, anything you would like
4 to say further?
5 JUDGE ARNOLD: No.
6 CHAIR BOLLWERK: Judge Abreu?
7 (No audible response.)
8 CHAIR BOLLWERK: All right, with that then
9 and with the reminder to participants' counsel to stay
10 on the Webex conference after we conclude to answer
11 any questions our court reporter might have, this
12 conference stands adjourned.
13 And again, thank you for your time and
14 effort.
15 (Whereupon, the above-entitled matter went
16 off the record at 3:54 p.m.)
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