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Case number 24.1318.

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Beyond nuclear ink and Sierra Club petitioners versus U.S.

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Nuclear Regulatory Commission in the United States of America.

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Miss Gern for the petitioners, Mr. Aberbeck for the response, Mr. Run for the Nuclear Energy Institute.

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Good morning.

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My name is Diane Curran.

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I represent Beyond Nuclear in the Sierra Club.

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This National Environmental Policy Act case raises the purely legal issue of whether the NRC may, as a matter of law, refuse to evaluate two types of environmental impacts of reactor license renewal that it has conceded are reasonably foreseeable.

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First, the climate change effects on accident risk during the initial license renewal term, which would be between 40 and 60 years of operation because the initial operating license term is 40 years.

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And then there's a second possible license renewal term that goes from 60 to 80 years.

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The climate change issue applies to both.

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The second issue is whether there are unique characteristics of aging reactor equipment that appear only in the second license renewal term that are different than everything else that's happened so far that ought to be considered in EIS.

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I'd like to begin by explaining why this case is different from a recent Supreme Court case that is on everyone's mind, seven counties.

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And there are three reasons.

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One is this case did not involve indirect downstream impacts that are under the control of a different agency.

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Everything here emanates from the operation of nuclear reactors that is within the complete control of the NRC.

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If the effects are indirect, it is because they're in the future.

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That's one understanding of indirect impacts.

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The minute the reactor starts operating in a licensed renewal term, of course, the risk starts.

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But the consequences of an accident would not happen necessarily until sometime in the future.

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The second aspect is this case involves a purely legal error.

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The only rationale the NRC gave for refusing to consider these impacts was if they were out of scope.

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Safety issues covered by the Atomic Energy Act.

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There is no exception in NEPA for a carve out for another statute to review.

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NEPA requires consideration of radiological impacts because they affect the human environment.

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So this is a purely legal error.

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And it's important to note that the NRC made that single defense in the licensed neurology AIS in responding to comments, but completely dropped it in their brief, understanding, we believe, that this was legal error.

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Finally, seven county is different in the sense that that case involved what the court calls a comprehensive evaluation of the environmental impacts it issued there.

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In this case, we have none whatsoever, no analysis.

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And even if the NRC could point to we have an Atomic Energy Act based analysis, it doesn't exist with respect to climate change.

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Can I go back to the basic framing that you started with, which was these two things are environmental impacts.

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And I think the NRC would say, that's not right.

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The environmental impact here is the harm that occurs if a severe accident were to come to pass and aging and

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worsening, I think of it as storms from climate change, are two inputs into that risk.

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And when you look at the record, we actually studied that risk, the risk of severe accidents, quite extensively.

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Now, you might still have other arguments, but do you agree with that basic framing?

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These are inputs into a category of environmental impact.

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They're not impacts in their own right.

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that.

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One is that the NRC claims, of course, this is in the response to comments and in the brief.

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It's not in the environmental analysis that we were given to comment on in the draft.

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They say the severe accident analysis is conservative enough to embrace

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But with respect to climate change, in the brief, the NRC said, we don't understand climate change well enough to do it.

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So we ask ourselves, which is it?

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Did you do it or did you not?

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We do not believe they did anything.

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This is a post hoc rationalization for not looking.

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The agency put its head in the sand.

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We cannot see anywhere where this was analyzed.

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And with respect to the aging issues, what we have is a guidance document, no regulation, a guidance document that in the introduction says this is voluntary and we're looking to the licensees to resolve this issue.

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This is not

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It's not NEPA compliance.

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If the agency is going to do that, they need to talk about it.

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What are the environmental implications of this decision-making process?

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Can I just add one follow up on the climate point?

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So I think what they say, it might be fair to characterize as them saying, we're not going to figure out how much worse this is going to get.

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But what they do say is something like, we analyze this risk.

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And what we have is a margin of error, before we would call this category of impact significant, of something like 100 times.

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And it's fast moving.

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It's difficult to study how much worse the hurricanes are going to get over the next 40 years.

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But we're pretty darn sure it's not 100 times.

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And so this is their reliance on the margin.

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So could you just specifically

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address that?

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Because if it were that there's 100 uncertain causes out there, but no one has given us a reason to think they're going to be significant in relation to the scale of this margin that we have, that does seem more reasonable.

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So I want to hear your answer to that.

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Yes.

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Three things.

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First of all, the NRC's

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analysis of weather impacts so far throughout its history has been the historical record.

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The NRC has never tried to, they use the word project, but they have never tried to anticipate how climate change might change these weather effects.

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It's an odd thing, but we're in the middle of one of these today.

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hurricane Melissa.

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So they have never looked at that.

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And okay, second, they have a page F12 of their GEIS, which is page JA 354.

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They say, we're going to make a plan.

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We're working on a draft plan.

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And we're going to look at these impacts for individual reactors.

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And we're going to look at mitigation measures.

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If that's what they're doing, then why aren't they doing it in a draft EIS?

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They're saying, we think there's something here that ought to be looked at.

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They're not saying they want to do it under NEPA.

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They're saying, we're going to do it outside over there.

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At some time, we're not going to tell you when.

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And it's not going to have a bearing on our license issues.

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And then finally, NEPA requires, and this is held by this court in state of New York versus NRC, 681 F3D 471, that when the NRC does an environmental impact analysis of accident risk, it has to separate out probability from consequences.

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Those are both important issues with respect to these impacts because

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You know, what we know about climate change is the likelihood of these events is going up.

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And we also know that the consequences of these events are going up.

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And the NRC uses a word as to, they use the word additive, which is really another word for cumulative.

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Weather events add to the accident risk that we have.

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These factors need to be put in and demonstrated how they affect the probability and the consequences.

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To make a blanket statement, all this fits in our severe accident analysis.

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That's undermined by this plan that they supposedly have, and it's also undermined by their statement in their brief.

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We don't think these weather effects are easy enough to analyze that we could do it.

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So we think that one of the purposes, and this is a holding of seven county that we rely on, NEPA is a procedural statute.

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NEPA requires the NRC, if they're going to make a licensing decision that affects the human environment,

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Put it in a draft EIS, what you think the effects are on the human environment and give us the probability and give us the consequences.

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Give us your technical data because we have members of the public, we have state and local governments, we have independent technical experts who want to review your work.

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and determine, do we think that you've done a good job?

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This is not reason decision making.

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This case not just violates NEPA, but it violates the Administrative Procedure Act.

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The record does not conform with what?

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Have you brought that claim here?

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Yes.

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So what I'm

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What I'm having difficulty with, and I guess this is following on Judge Garcia's initial question, is the relevant government action here, which NEPA is applying, is the licensing of a nuclear reactor to operate.

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And put aside that the generic EIS doesn't do that by itself, they still have to have a plant-specific one.

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Your argument is that

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the license causes environmental harm.

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Your argument isn't that operation of the nuclear plant itself is causing these harms.

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Your argument is if there's a nuclear plant operating and if a very big storm comes, then there's a risk that there'll be an accident and a risk that that accident won't be contained by the existing

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safety mechanisms already built into that plant.

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And so then there's a risk that there'll be environmental harm from that accident.

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Am I understanding your argument right?

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Yeah, so it's just one thing that you said that I wasn't certain about.

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It all stems from the operation of the reactor.

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If the reactor isn't operating, you don't get the environmental effects.

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But the action here, I mean, the New York case you referenced involved

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direct consequence of operation, like for a certain one, right?

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How are we going to deal with, I think was it spent nuclear rods, right?

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So this thing's operating, we're creating waste and we got to do something with that waste.

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100%.

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That's just part of the process is not just operating, but cleaning up after yourself.

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All right, that's not what you have here.

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What you have is licensing, operation, and then operation itself doesn't create the risk.

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What you want to say, you have two things, aging equipment or, but put aging equipment aside for this question.

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So just climate change.

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Climate change creates a risk.

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Can I just?

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Climate change creates a risk that this operation will, if systems fail, result in environmental harm.

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Well, it feels like this is an odd vehicle for this.

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argument, as a NEPA argument.

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We see this as climate change as a cumulative or as the NRC would say additive effect on accident risk.

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And we have to back up for a minute.

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But an effect on accident risk.

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Yes.

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It increased the risk.

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And there's no doubt that accident risk is an environmental impact of a nuclear plant.

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That's well established.

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So the question is, what about?

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It's a risk of an environmental impact.

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The mere fact of a risk is not itself an environmental impact.

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It creates a risk of an environmental impact.

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That's why I say this is different than the New York case.

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No, I would respectfully disagree, Judge Mollett, because in that case, for instance— We've got climate change now, as you just pointed out, and yet we haven't had any nuclear accidents.

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One of the risks, for example, was pool fire, spent fuel storage pools catching on fire.

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That's an environment—the risk was seen by this court as an environmental impact.

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You're going to have those pools.

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There, those pools themselves are dangerous.

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You have seepage risks and things like that.

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But here, your argument is that there's a risk that a storm will come.

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They're not licensing the storms.

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There's a risk a storm will come.

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And then there's a risk that storm will be of xy magnitude.

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And then there's a risk that if it's of xy magnitude, all of the existing safety protocols

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will not prevent.

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harm that will then leak outside the operation of the nuclear plant itself and damage the environment.

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Am I understanding it right?

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Yes.

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And I just want to explain that the NRC traditionally looks at what this is called an external event.

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So when they do accident analysis, they look at internal events, which is what you're talking about.

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The piece of equipment breaks down.

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And then external events are weather,

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Earthquake risk.

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They look at weather, and they consider that to be a relevant factor.

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And here, weather is now today understood to have different characteristics than it was understood when NRC first started looking at these things.

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It's still the weather.

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They looked at past weather events.

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Do you know what the time range was for those past weather events?

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event in historical recorded history.

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That's what they look at.

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And then they assume that.

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Sorry.

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Let me try the question again.

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Because my understanding is that the plants themselves as well are supposed to look at historical events.

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And they looked at historical weather events.

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What is the time range of that?

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If I submit a license application or a renewed license application today,

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What time period am I looking at for my relevant past weather events?

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I believe it's the time period for which weather events have been recorded.

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And so that's going to include up to about the time I file my... Right, but bear in mind... It includes climate change.

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Bear in mind, okay, the way the NRC's regulations work, and this is 10CFR 54.31,

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The applicant can apply for initial license renewal 20 years before coming to the end of a 40-year term.

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So that means they're predicting out 40 years.

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And New York versus NRC says they've got to look at that time period far out in the future.

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They can't just say, we're going to talk about what happened yesterday.

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They've got to predict.

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And for instance, when they go to the second license renewal term, they can make that application the day they start operating under the first license renewal term.

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So again, 40 years out, they're predicting what will happen to the very end of that licensing term.

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This was the NRC's choice.

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They decided they're going to give these licensees a lot of time ahead of time to apply.

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But that puts a burden on the NRC of predicting, and it's not speculation.

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Or if they say, we don't know, then tell us on the environmental record so that the public and the state and local officials can see, wow, they don't know.

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But you said they said we can't sort of predict beyond this.

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They don't say anything like that in the EIS itself.

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They say nothing.

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The EIS itself just says, this is out of scope.

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Case closed, go away.

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That's our problem with this.

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We never got to comment on anything.

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And there was never at any time in history a climate change rule under the Atomic Energy Act where the NRC said, here's how we're going to anticipate climate change and regulate it under the Atomic Energy Act.

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We didn't get that either.

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But didn't they also say that climate effects

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Are inherently local localized will be different climate.

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Yes.

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Okay.

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Good.

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All right.

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So they didn't say nothing.

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Yeah, they're doing a generic here.

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They said these things are inherently localized.

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Right.

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So, and a generic doesn't get you a license renewal.

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You still have to have a supplemental at the individual plant.

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Right.

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But under the license, we know, no, no, under the license, you don't have to have a supplemental EIS at the end.

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They don't have to address everything that is the purpose of the license.

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We know GEIS is to exempt the licensee and the NRC from having to address certain impacts in the individual cases.

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So, for instance, so Mike.

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Correct, they still have to do a supplemental EIS.

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And if it turns out that this, that there's, when you look at the, you said, you told us NRC, we got to look at this on a local regional, let's just say plant specific basis.

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And it turns out this plant is sitting in what is now a common track for major category four or five hurricanes, just hypothesize that.

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then why wouldn't that plant be under an obligation to address that?

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Because the generic judgment from the EIS would not govern its particular risks.

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It has, based on climate change, new and significant information that it has an obligation to address.

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And if it doesn't, then you could challenge that supplemental EIS, right?

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A couple things in response to that.

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First of all, the NRC does concede that climate change has site-specific effects.

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But the only way they look at that in the individual license renewal proceedings is the effect on local resources.

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They don't connect the dots between, like the water levels going up in the lake, how's that going to affect my nuclear plant?

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They don't connect those dots.

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If a member of the public.

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My point is not to bless or not agency decisions involving individual plants.

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The question is, you said they said nothing.

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They actually said this is local and regional.

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And if there's going to be these plant-specific processes before any license issues,

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I get they sort of get to check some boxes on the form already from the generic EIS, but that doesn't make them immune from an obligation to come forward with or a challenge based on new and significant information particularized to that plant.

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And so if they're not properly processing a particular plant's supplemental EIS and therefore its ultimate license decision,

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Can't that be challenged there?

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Or are you saying, no, we can't challenge it there.

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We went here or we'll never be allowed in the future to raise arguments about plant-specific climate change risks?

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The problem with it is that when a member of the public gets to the individual license renewal proceeding, the first thing that happens is that

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We're told that this finding in the license renewal GEIS, this category one finding about the risk of an accident is binding.

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And you will have to submit a waiver petition.

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So putting a huge burden on a member of the public, it's to do this.

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So it might be one thing if, for instance, yeah, the agency has to consider new and significant information.

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And you could come in with your hearing request and say, this is new and significant information.

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And you had to meet the ordinary standard for getting a hearing.

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But that's not the case.

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The NRC has insulated these findings from any kind of site-specific challenge by requiring waiver petitions.

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And none has been ever granted, although many have been attempted.

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It is a mechanism.

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Can that decision be challenged?

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Yes.

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Has it been challenged?

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It has in different.

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There was NRDC versus NRC involving the limerick plant.

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But the point is that this creates

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a huge procedural barrier to the consideration of new and significant information that is not otherwise there.

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These category one findings have a purpose, and that is to expedite license renewal.

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They're saying we're going to give you extra procedural hurdles to

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to me.

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And if the NRC thinks that this is appropriate with respect to accidents, they have not justified it on the record.

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There is no analysis on the record that would justify that category one finding.

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This is the place.

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These findings are applicable to, there's probably 30 applications that are either pending or coming down the road.

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This is the place where the NRC is making this crucial finding and hasn't put anything on the record.

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And then to say, you know, we're gonna kick this down the road to individual licensing proceedings where we're gonna make the public

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comply with waiver requirements is, you know, the utmost in arbitrary agency decision making and not in compliance with NEPA.

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I know I am way past my time.

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I wanted to address the issue of vacator, but maybe I'm out of time.

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I'll give you two sentences.

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Okay.

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This case meets the allied signal standard for vacator.

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There's nothing on the record.

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There's no harm to the utilities because the NRC is subject to the timely renewal doctrine, 10 CFR 2.109B.

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and they routinely grant exemptions if the licensees don't apply within their time frame.

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A recent case on that is San Luis Obispo Mothers for Peace versus NRC 100F41039.

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That was the Ninth Circuit, 2024.

[00:24:35] Speaker 01:
Thank you.

[00:24:55] Speaker 02:
May I please the court?

[00:24:57] Speaker 02:
It's Andrew Avrabach from the Nuclear Regulatory Commission on behalf of the federal respondents.

[00:25:02] Speaker 02:
I'd like to begin with two major principles.

[00:25:05] Speaker 02:
These points go to the context for petitioners' arguments and the standards of review that the court ought to apply in considering them.

[00:25:12] Speaker 02:
First, this case isn't about whether the NRC has ignored certain types of impacts because they're remote and speculative.

[00:25:18] Speaker 02:
Or present some kind of worst case scenario.

[00:25:21] Speaker 02:
It's about whether the agency has reasonably addressed one discrete issue in its generic and generic environmental impact statement, specifically whether it's reasonably characterized foreseeable impacts of the consequences of an accident and a nuclear power plant.

[00:25:36] Speaker 02:
And whether the 100-page analysis the agency has devoted to this issue is somehow incomplete or deficient because it includes that the two sub-issues that petitioners have raised do not fundamentally alter the conclusion that the risk of a severe accident is small.

[00:25:52] Speaker 02:
Second, and relatedly, it's important to look at this case through the lens of the seven-county infrastructure.

[00:25:58] Speaker 02:
And that case means that the agency is entitled to deference, not only with respect to its technical determinations, but also with respect to the judgment calls that the agency makes in performing its environmental analysis, and in determining as part of the exercise of that discretion, what types of information will meaningfully inform its decision-making process.

[00:26:22] Speaker 01:
I get that deference, so I don't think there's any dispute that you have to consider all relevant

[00:26:28] Speaker 01:
information.

[00:26:30] Speaker 02:
Certainly, Your Honor, yes.

[00:26:31] Speaker 01:
And when you're doing accident risk assessments, it has to be a reasonable accident risk assessment.

[00:26:39] Speaker 07:
We agree.

[00:26:42] Speaker 01:
How can an accident risk assessment be reasonable if it's not looking at the risk to come rather than the risk that was in the past?

[00:26:57] Speaker 02:
That's a fair question.

[00:26:58] Speaker 02:
And I'll respond by saying that there is an extensive analysis of external events, the very types of events that are associated with climate.

[00:27:07] Speaker 02:
Certainly.

[00:27:08] Speaker 02:
And we take the information that has accumulated, and this was part of your question to counsel, up through today, or at least up to the date of the publication of the generic EIS, to determine what the potential risks are.

[00:27:24] Speaker 01:
And it is true.

[00:27:26] Speaker 01:
That it was fairly pointed out.

[00:27:29] Speaker 01:
These this is a really long term license.

[00:27:35] Speaker 01:
So license itself is what 20 years out and then depending on when.

[00:27:41] Speaker 01:
They do it before they even need to get to that renewal line.

[00:27:44] Speaker 01:
And I get it's a long and complicated process, so they start early.

[00:27:47] Speaker 01:
But it could be a 25, 30 year time period.

[00:27:54] Speaker 01:
Is it reasonable not to include, in addition to here's our past, our thorough analysis of past weather events and their risk,

[00:28:08] Speaker 01:
our view of what the rather risk is for the time period of this license renewal, let's just say 30 years ahead.

[00:28:19] Speaker 02:
Yes, I think it is reasonable.

[00:28:22] Speaker 01:
It's reasonable to ignore the future.

[00:28:23] Speaker 02:
I don't think it's quite right to say that we're ignoring the future, and let me explain why.

[00:28:28] Speaker 02:
First of all, there is margin built into the analysis such that we're not just saying, oh, here's everything that's happened to date.

[00:28:36] Speaker 02:
We don't have to go an iota further than what has happened up to today.

[00:28:41] Speaker 02:
Second of all, and this was the focus of a lot of the questions previously.

[00:28:44] Speaker 01:
You said it was out of scope.

[00:28:45] Speaker 01:
Climate change is out of scope.

[00:28:47] Speaker 01:
So when you were doing your margin analysis, you weren't thinking about

[00:28:53] Speaker 01:
Sure, we've looked at past hurricanes or tornadoes, but you weren't thinking about the intensity and frequency and growing force of them going forward.

[00:29:04] Speaker 01:
You said that's out of scope.

[00:29:06] Speaker 01:
This was client.

[00:29:07] Speaker 01:
The commission said it was out of scope.

[00:29:09] Speaker 02:
Let me be clear about this.

[00:29:11] Speaker 02:
And this, too, was remarked upon earlier.

[00:29:14] Speaker 02:
Climate change has begun.

[00:29:15] Speaker 02:
So in that sense, the up-to-date information that we're reviewing today or at the time of publication of the generic EIS includes trends that have accumulated up to the date.

[00:29:28] Speaker 01:
So if this is how

[00:29:31] Speaker 01:
much increase in frequency there's been over the last 20 years and increase in severity over the next last 20 years, then we project a similar or exponential.

[00:29:44] Speaker 01:
You guys are the experts in that.

[00:29:46] Speaker 01:
That's not the type of thing we would be reviewing going forward.

[00:29:49] Speaker 01:
But instead, you just said we're stopping

[00:29:52] Speaker 02:
At the time of the license, we're stopping, but acknowledging that our regulatory regime provides for margin above and beyond that, which has already happened.

[00:30:00] Speaker 02:
And then let me, let me raise.

[00:30:03] Speaker 01:
Where did the commission say that that margin in our judgment.

[00:30:08] Speaker 01:
Covers the risks of climate change on increasing severity and frequency of severe weather events where these nuclear plants are located.

[00:30:22] Speaker 02:
At page JA 213, the commission references margin.

[00:30:27] Speaker 02:
Now, to be fair, it doesn't specifically say exactly what the court just suggested, which is this is the forward, the aspect of margin that covers- That was on the aging issue too.

[00:30:38] Speaker 02:
You're right.

[00:30:39] Speaker 02:
That was 213 was aging.

[00:30:40] Speaker 02:
222 is the page corresponding to climate change.

[00:30:45] Speaker 02:
But the agency has stated throughout- Which language you're pointing me to?

[00:30:49] Speaker 01:
where they say, not that we got big margins, but these big margins we have made in our judgment, we have made a judgment are sufficient to protect against environmental risk from climate change.

[00:31:04] Speaker 02:
There's no statement to that effect, Your Honor.

[00:31:07] Speaker 01:
So then that's my question.

[00:31:09] Speaker 01:
How can that be, that we began with, it wouldn't be reasonable not to look forward.

[00:31:15] Speaker 02:
Because we know,

[00:31:17] Speaker 02:
two points I'd like to make first because we know that the environmental analysis has yielded a

[00:31:26] Speaker 02:
12,000% decrease in the risk of accidents since these calculations were first performed in 1996.

[00:31:37] Speaker 02:
The agency was reasonably comfortable in concluding that its ongoing oversight of these plans, and that's an important issue I want to get to, is sufficient to conclude that

[00:31:49] Speaker 02:
the risk associated with even changing climate change will be handled.

[00:31:56] Speaker 01:
You told me it doesn't exist.

[00:31:58] Speaker 01:
I'm sorry?

[00:31:58] Speaker 01:
You told me that they didn't make that judgment that this margin, if they had said this margin

[00:32:05] Speaker 01:
Wow, that's a big margin.

[00:32:06] Speaker 01:
They definitely said that, but they didn't say, and that is in our judgment, having looked at this weather trend sufficient to protect against, to mean that our safety protections will apply, will reduce appropriately the risk from climate change accidents for the next 30 years.

[00:32:31] Speaker 02:
Correct.

[00:32:32] Speaker 02:
But what the agency did say is that it has an ongoing regulatory process in place to ascertain the effects of climate change as they occur and to take appropriate action as part of its regulatory scheme to make sure that threats as they emerge are appropriately handled.

[00:32:51] Speaker 01:
So that's what's on 222.

[00:32:53] Speaker 01:
And we learn new stuff.

[00:32:55] Speaker 01:
And that's what I want to make.

[00:32:57] Speaker 01:
So if I can just follow up on this.

[00:33:02] Speaker 01:
is I mean there's other parts it's just curious the NRC had the talked about you know and I think it's one of the appendices talked about how there are other government agencies can predict the track of climate change there's information out there which they did not factor into their margin analysis so tell me

[00:33:28] Speaker 01:
Two things, when they say on 2-22, if new information about changing environmental conditions becomes available, what new information beyond what expert government agencies already have gathered are they waiting for?

[00:33:43] Speaker 01:
And two, when they have that, what does it mean

[00:33:50] Speaker 01:
that they will change our, I don't understand how this language intersects with the generic EIS.

[00:33:57] Speaker 01:
So they will increase safety regulations.

[00:34:00] Speaker 01:
How will it be any process for

[00:34:04] Speaker 01:
the public and courts to review what they do.

[00:34:07] Speaker 01:
And if you could just, I mean, if they're going to adopt a regulation and that can be challenged, or I just don't understand how this paragraph here intersects with the generic.

[00:34:15] Speaker 02:
The court is correct that the generic and environmental impact statement alone is not the

[00:34:21] Speaker 02:
universe of environmental consideration.

[00:34:24] Speaker 02:
So to the extent that there's new information, new and significant information that emerges as part of the agency's ongoing oversight, and the agency certainly consults with its sister agencies who have even additional expertise beyond that of the NRC,

[00:34:41] Speaker 02:
to the extent that new and significant information emerges, then yes, that would be an appropriate candidate for consideration directly as new and significant information or pursuant to the waiver process that Council for Petitioners has mentioned.

[00:34:55] Speaker 01:
Is it true that you guys have never allowed a waiver?

[00:34:58] Speaker 02:
That's not correct.

[00:34:59] Speaker 02:
There have been waivers issues.

[00:35:01] Speaker 02:
I don't have them at my fingertips.

[00:35:02] Speaker 02:
But let me also point out that in New York, the NRC too, we had exactly the same arguments that were made.

[00:35:07] Speaker 02:
And this court specifically recognized that the waiver process was an appropriate means of seeking an escape hatch of some form from what counsel refers to as the forever binding nature of the category one determinations or in a generic environmental impact statement.

[00:35:23] Speaker 02:
We are trying to.

[00:35:25] Speaker 01:
Sorry.

[00:35:28] Speaker 01:
Is there a waiver process that would now allow sort of reopening of the generic EIS, or is this waiver only going to apply?

[00:35:36] Speaker 01:
Because I thought it went with the new and significant information, which would only be plan specific.

[00:35:40] Speaker 02:
The waiver process is a means of

[00:35:44] Speaker 02:
of getting admitted to a licensing proceeding as part of the adjudication before the NRC.

[00:35:49] Speaker 02:
Typically the NRC would say you can't challenge a rule in an NRC adjudicatory proceeding and petitioners would come and say well in this case there are special circumstances indicating that the rule shouldn't be applied and one of the reasons they can say it is that well

[00:36:03] Speaker 02:
The purpose of the rule isn't applicable here because, as the court suggested, we have new information suggesting that category five hurricanes are likely to descend upon some particular area.

[00:36:15] Speaker 02:
And that would be fair game for such a challenge.

[00:36:21] Speaker 01:
But what if the new and significant information

[00:36:25] Speaker 01:
shows a risk it's unlikely to be on one particular location.

[00:36:30] Speaker 01:
It could be an entire region or it could be the entire east coast of the United States where there's multiple plants.

[00:36:39] Speaker 01:
Not all of which might have a license proceeding before the NRC at the relevant time.

[00:36:44] Speaker 01:
So if they need more sort of cross-cutting change, the risk is

[00:36:52] Speaker 01:
broader than a particular plan?

[00:36:54] Speaker 01:
Well, two avenues, Your Honor.

[00:36:56] Speaker 02:
One is a petition for rulemaking to ask the agency to redo its analysis in light of this information.

[00:37:04] Speaker 01:
For the generic EIS?

[00:37:05] Speaker 02:
Yes.

[00:37:06] Speaker 02:
Or two, the generic EIS itself specifically states that it is designed to be reevaluated at 10-year increments.

[00:37:17] Speaker 02:
so that we're not stuck in 2024 forever.

[00:37:20] Speaker 01:
Well, you might not be, but you will have already issued an awful lot of licenses that are going to govern for the next 30 years.

[00:37:29] Speaker 01:
And let's say five, seven years from now.

[00:37:35] Speaker 01:
Oh, my gosh.

[00:37:38] Speaker 01:
this risk is the storms.

[00:37:41] Speaker 01:
I hope not.

[00:37:41] Speaker 01:
The storms are extraordinary.

[00:37:44] Speaker 01:
And a lot of these nuclear plants, surprise, surprise, are near water areas.

[00:37:49] Speaker 01:
And it's extraordinary.

[00:37:52] Speaker 01:
We've had a problem at one already with a terrible environmental impact.

[00:37:56] Speaker 01:
We've got to revisit this.

[00:37:59] Speaker 01:
We've got to deal with this.

[00:38:00] Speaker 01:
We've got to change our regulations on safety.

[00:38:03] Speaker 01:
We've got to do a complete overall, kind of like your post-Fukushima one, only imagine it where

[00:38:08] Speaker ?:
you

[00:38:09] Speaker 01:
And then what happens to all those license you've already issued?

[00:38:13] Speaker 02:
Well, that's an important point.

[00:38:14] Speaker 02:
And I want to make this clear.

[00:38:15] Speaker 02:
The dangers of a storm, of a hurricane, of a tornado, of an earthquake, those are things that the NRC monitors as part of its ongoing oversight of reactor operations, independent of the question of whether or not a license should be renewed.

[00:38:32] Speaker 02:
So let's just assume for a moment that the NRC issues a new license for a new brand new nuclear plant tomorrow.

[00:38:39] Speaker 02:
And we don't then put aside our safety review of the plant or our ongoing oversight of the plant for 40 years.

[00:38:51] Speaker 02:
Rather, on a day-to-day basis, the NRC is monitoring events related to natural hazards.

[00:38:57] Speaker 02:
And you can certainly rest assured that were this hurricane to have descended upon the United States, there would be

[00:39:06] Speaker 02:
eyebrows raised about what's going to happen now and to make sure that nothing happens as a consequence and what steps need to be taken.

[00:39:13] Speaker 01:
We have to wait until it hits the United States?

[00:39:15] Speaker 01:
This is not that far away.

[00:39:18] Speaker 02:
I get that and perhaps that wasn't the best explanation.

[00:39:21] Speaker 02:
Certainly when a credible threat of something happening emerges, the NRC's antennae go up

[00:39:26] Speaker 02:
and make sure that all reasonable precautions are required of the licensee in order to maintain or at least maintain reasonable assurance of adequate protection.

[00:39:37] Speaker 02:
That's the NRC's mission.

[00:39:38] Speaker 02:
That's how the NRC in the main regulates nuclear power plants.

[00:39:42] Speaker 02:
It is true that this accident analysis is part of the analysis that it does in considering license

[00:39:47] Speaker 02:
But in the main, what the NRC does is to make sure on a day-to-day basis that these threats that might emerge are adequately identified and that the licensees are required to take appropriate action as is necessary to maintain safety.

[00:40:03] Speaker 02:
That is ultimately the NRC's mission.

[00:40:06] Speaker 01:
So this is helpful, but I'm trying to understand, again, there have been very, very serious hurricanes that have hit this country in recent years.

[00:40:18] Speaker 01:
And we now have had at least a close brush with a category five absolutely devastating, one very, very close to the United States.

[00:40:28] Speaker 01:
So when safety reviews are being done today on these license applications,

[00:40:39] Speaker 01:
Is there an assurance that the existing safety regulations are strong enough to stand up to category four or five hurricane?

[00:40:49] Speaker 01:
I mean, eyebrow raising doesn't make me feel better.

[00:40:54] Speaker 02:
Well, it's more than eyebrow raising.

[00:40:55] Speaker 02:
It's taking appropriate action in light of the hazards.

[00:40:58] Speaker 01:
Has that already happened?

[00:41:00] Speaker 02:
Well let me point to the Fukushima example as an example of how the agency responds to threats and granted it was after the fact because the earthquake that precipitated it certainly had consequences in Japan but the agency embarked upon a comprehensive program to improve its safety regime so as to not only take steps to well in that case to

[00:41:28] Speaker 02:
to take steps to make sure that licensees were taking precautions to prevent an accident and also to mitigate their consequences.

[00:41:38] Speaker 02:
And that's the agency's function.

[00:41:39] Speaker 02:
That's the agency's function on a day-to-day basis, irrespective of these snapshots it takes in connection with license renewal.

[00:41:47] Speaker 02:
In the main, the agency accomplishes this through its ongoing safety oversight.

[00:41:53] Speaker 02:
It is true, Judge Garcia, as you suggested, that there is a comprehensive analysis of accident risk.

[00:42:02] Speaker 02:
in the EIS itself.

[00:42:05] Speaker 02:
And that accident risk includes a lengthy chapter on external events.

[00:42:10] Speaker 02:
What we're talking about here are inputs to the analysis that the agency performed.

[00:42:15] Speaker 02:
And the question is of whether or not the agency should be entitled to deference in determining that these inputs didn't change the overall picture of the environment.

[00:42:24] Speaker 02:
Again, that's what NEPA is designed to have the agency capture.

[00:42:27] Speaker 02:
What is the overall picture of the environment that this particular agency action is going to have?

[00:42:35] Speaker 01:
And here, the agency has- You're looking beyond the SAMA analysis done by the plant itself when you're examining the risk of severe weather consequences?

[00:42:49] Speaker 02:
Yes, Your Honor.

[00:42:50] Speaker 02:
There are all kinds of other inputs into- Weather inputs.

[00:42:57] Speaker 01:
risk of weather inputs.

[00:42:59] Speaker 02:
Maybe I'm misunderstanding your question.

[00:43:01] Speaker 01:
So the applicant prepares this, some of that's how you say the acronym, SAMA, and that looks at how they're going to mitigate severe weather events based on entirely past events.

[00:43:16] Speaker 01:
I don't know how long in advance of the license that's prepared.

[00:43:18] Speaker 01:
I mean, it could be for the ones who did an original SAMA, that document could be 40 years old,

[00:43:26] Speaker 01:
when they come to do their license renewal?

[00:43:28] Speaker 02:
I don't think they're quite that old, but let's say 20.

[00:43:31] Speaker 01:
OK, 20 years old when they come in, 20 years old to predict out now for a 30 or 40 or 30 year window.

[00:43:38] Speaker 01:
If that's where you're getting sort of the analysis of how they're going to mitigate weather events, that seems grossly outdated.

[00:43:50] Speaker 01:
But you had said, no, no, we're looking up to date of at least license application.

[00:43:55] Speaker 01:
So that's where I'm trying to get the disconnect between their SAMA and then where, are they providing you the information?

[00:44:01] Speaker 01:
Are you demanding it?

[00:44:04] Speaker 01:
Is there something that shows that the commission itself is going, thank you, that was very nice for 20 years ago.

[00:44:10] Speaker 01:
Where's your up to date?

[00:44:13] Speaker 02:
analysis of how your plant is well that's predominantly accomplished through the day-to-day oversight of the plants themselves the give and take between the licensee and the agency when storms

[00:44:26] Speaker 02:
emerge, present a threat.

[00:44:28] Speaker 02:
That's how the agency accomplishes safety.

[00:44:30] Speaker 02:
These SEMA analyses were originally designed to determine whether or not additional design alternatives or mitigation alternatives were appropriately implemented under NEPA.

[00:44:43] Speaker 02:
And they were a creature of NEPA itself.

[00:44:46] Speaker 02:
Now, this court's decision in NRDC versus

[00:44:50] Speaker 02:
NRDC versus NRC, the court upheld the agency's determination that didn't have to do more than one of these analyses.

[00:44:58] Speaker 02:
And so those analyses exist dating back largely from the time of first license renewal, so into the 2010s.

[00:45:08] Speaker 02:
But up-to-date information is provided to the agency as gathered by the agency as part of its ongoing regulatory process.

[00:45:15] Speaker 02:
And that's how it determines in the main that it has reasonable assurance that plants should be able to continue to operate.

[00:45:22] Speaker 02:
And if the agency is concerned that

[00:45:25] Speaker 02:
some plant out there is not adequately prepared, it has tools in its regulatory portfolio to make licensees, build a higher seawall, take action to mitigate the potential effects of flooding.

[00:45:39] Speaker 02:
And this is what I was trying to get to before.

[00:45:40] Speaker 02:
That's what happened post Fukushima.

[00:45:43] Speaker 02:
The agency engaged in a comprehensive evaluation of the possible effects of a flooding or a sea level rise event that might affect plants.

[00:45:52] Speaker 02:
And as a consequence,

[00:45:54] Speaker 02:
all of the evaluations of flooding were redone.

[00:45:57] Speaker 02:
That's the kind of oversight that the NRC performs.

[00:46:00] Speaker 02:
That's the kind of oversight that the NRC will perform if confronted with new and significant information about changes to the environment, increased storms, increased winds, things of that nature that might be associated with climate change.

[00:46:17] Speaker 01:
If five years from now, these petitioners say,

[00:46:23] Speaker 01:
Look what's happened in the last five years with storm frequency and intensity and the damage as a cause and all those nice post-Fukushima seawalls.

[00:46:32] Speaker 01:
They're not going to be good enough when it happens.

[00:46:35] Speaker 01:
And they want to do this proactively, not reactively, after an accident has happened.

[00:46:41] Speaker 01:
But look in these trends.

[00:46:42] Speaker 01:
Here's all these studies.

[00:46:44] Speaker 01:
This is going to get so much worse.

[00:46:47] Speaker 01:
What can they do?

[00:46:48] Speaker 01:
And the NRC hasn't done anything.

[00:46:52] Speaker 01:
What can they do?

[00:46:53] Speaker 01:
And this is not a plant-specific concern.

[00:46:57] Speaker 01:
Let's say it's the entire East Coast.

[00:47:00] Speaker 01:
What can be done to raise it before the agency?

[00:47:03] Speaker 02:
Again, there are a couple of avenues.

[00:47:04] Speaker 02:
I mentioned the petition for rulemaking before.

[00:47:06] Speaker 02:
Certainly, they can come in, and I don't know that NEPA is necessarily the best avenue to do this, but rather to ask the agency to look at its own safety regulations.

[00:47:16] Speaker 02:
And then on a plan-specific basis, licensee interveners can come in and file a so-called citizen petition.

[00:47:24] Speaker 02:
Not a specific concern.

[00:47:25] Speaker 02:
But there is a process under 10 CFR 2.206 to come in

[00:47:29] Speaker 02:
and specifically ask the agency to take action as against a particular license, to modify it, to suspend it, or even to revoke it because of an unresolved safety concern.

[00:47:40] Speaker 02:
That process exists.

[00:47:40] Speaker 01:
But if that concern is based on climate change, is the agency's answer going to be, that's already covered by our generic EIS?

[00:47:48] Speaker 01:
Go away.

[00:47:49] Speaker 01:
Absolutely not, Your Honor.

[00:47:51] Speaker 02:
And let me be clear about this.

[00:47:52] Speaker 02:
This generic EIS has a role to play in the decision-making process for initial license.

[00:47:58] Speaker 02:
issuance as well as each renewal.

[00:48:00] Speaker 02:
But in the main, it is a page-limited document designed to inform the public about risks and about impacts.

[00:48:09] Speaker 02:
But in the end, the agency's safety mission and the agency's safety review takes place outside of NEPA.

[00:48:15] Speaker 02:
And the 2206 process is outside of NEPA.

[00:48:18] Speaker 02:
It's not about amending the environmental impact statement because, again, we acknowledge this.

[00:48:22] Speaker 02:
As I said, on the hypothetical new reactor that might be licensed today, we don't wait until 40 years from now to issue a new environmental impact statement and address climate change that way.

[00:48:35] Speaker 02:
We address safety issues as they emerge.

[00:48:39] Speaker 02:
And our finding of reasonable assurance in connection with the grant is a dynamic one.

[00:48:45] Speaker 02:
So what might be reasonable assurance today isn't necessarily reasonable assurance tomorrow, again, irrespective of whether the license has been renewed or not.

[00:48:54] Speaker 02:
And the agency needs to maintain its vigilance.

[00:48:56] Speaker 02:
And it does maintain its vigilance.

[00:48:58] Speaker 02:
And I would point to the Fukushima example as the best example I have of that.

[00:49:03] Speaker 01:
I have petitions for rulemaking regarding

[00:49:09] Speaker 01:
your safety regulations been filed on the basis of climate change risk?

[00:49:18] Speaker 01:
Yeah.

[00:49:18] Speaker 02:
Not to my knowledge, no.

[00:49:21] Speaker 01:
Sorry.

[00:49:23] Speaker 04:
And a few questions.

[00:49:24] Speaker 04:
So, on 267 of the J.A., your brief reference is the statement that most of the external event risks, or at least it says, winds, floods, tornadoes, et cetera, are less significant than earthquakes and fires.

[00:49:42] Speaker 04:
Is that

[00:49:44] Speaker 04:
And you cite that for, I guess, the idea that climate change is going to make the wind stuff worse, not the earthquake stuff.

[00:49:51] Speaker 04:
Is that based on some, do you know, is there some other analysis of past weather events in the record that we can look at?

[00:49:58] Speaker 02:
That is the extent of the analysis in here, but that's based on the NRC's experience in A, analyzing

[00:50:08] Speaker 02:
Analyzing safety issues and be issuing new licenses and also this experience with the modeling.

[00:50:15] Speaker 02:
And again, this is all part of a larger model that the agency prepared to understand.

[00:50:20] Speaker 04:
Okay.

[00:50:21] Speaker 04:
And then on recent license renewals, at least.

[00:50:24] Speaker 04:
I understand it's a long time between each plant coming and asking for renewal, but my understanding is it's an ongoing process.

[00:50:32] Speaker 04:
Sometime in the past five and 10 years, many plants have been getting these renewals.

[00:50:37] Speaker 04:
Is that correct?

[00:50:39] Speaker 02:
Almost all the plans that were granted initial licenses throughout the 60s, 70s, 80s got an initial license renewal.

[00:50:47] Speaker 02:
Now we're in the phase, because time progresses, that some are now obtaining a subsequent second renewal.

[00:50:54] Speaker 02:
So the NRC has 90-ish license renewals accomplished.

[00:50:59] Speaker 02:
I don't know the exact number, but something in that nature.

[00:51:02] Speaker 04:
And just as a general matter, when did those happen in the past decade, the past two decades?

[00:51:07] Speaker 04:
The past 15 or so years, I think, is the... And then there was a lot of... I just want to make sure I'm understanding, so...

[00:51:14] Speaker 04:
It's you were discussing with Judge Millett, JA-221, or you could call it A-222.

[00:51:21] Speaker 04:
The very first paragraph says the NRC disagrees that we should consider climate change for postulated accidents.

[00:51:30] Speaker 04:
The last sentence is the large margin can account for a variety of uncertainties.

[00:51:34] Speaker 04:
It doesn't say exactly all the things we were hypothesizing, but isn't that linking

[00:51:40] Speaker 04:
the NRC linking the decision not to further study climate change cause risks to the existence of the safety margin?

[00:51:49] Speaker 02:
Or am I reading it incorrectly?

[00:51:52] Speaker 02:
No, that's a fair characterization.

[00:51:53] Speaker 02:
The margin is so enormous that the agency's understanding of where climate is is not likely to

[00:52:01] Speaker 02:
cause any kind of significant change to its underlying conclusion that the risk, and this is the ultimate question in the NEPA case, that the risk of accidents is small.

[00:52:12] Speaker 04:
So if we put aside, I understand your high level framing arguments, so don't just give me that answer to this question.

[00:52:19] Speaker 04:
But we've talked about climate change and just on aging.

[00:52:22] Speaker 04:
Assume that the Commission largely proceeded as if,

[00:52:29] Speaker 04:
we're going to deal with aging problems in our other programs, Park 54 and the ongoing safety.

[00:52:34] Speaker 04:
Assume I think there needs to be something to point to in the record to support that being a reasonable assumption.

[00:52:42] Speaker 04:
So we're assuming our other programs will work.

[00:52:47] Speaker 04:
What would you point to in the record to say that's a reasonable assumption with respect to the risks from aging components?

[00:53:00] Speaker 02:
The existence of the regulatory regime that the agency identified is proof positive that the impacts are likely to be small because.

[00:53:13] Speaker 02:
because the agency has confidence in its own aging management programs.

[00:53:17] Speaker 02:
I would further note, and this is what I said when I mentioned.

[00:53:20] Speaker 04:
Let me tee up why the further thing is important is that the New York One basically says, you telling us you're on the job, we've got it, is not enough.

[00:53:30] Speaker 02:
Well, there's more to it than that.

[00:53:31] Speaker 02:
And let me provide a specific example.

[00:53:34] Speaker 02:
In New York One, we were largely talking about a circumstance where the agency hadn't performed an environmental impact statement at all, where there wasn't a 100-page analysis of potential accidents

[00:53:43] Speaker 02:
of anything under review.

[00:53:46] Speaker 02:
And the court said, well, all I've got is this promise that you're on the case.

[00:53:49] Speaker 02:
I think that was the term the court used.

[00:53:51] Speaker 02:
Yeah, that's why I prefaced this with what I did.

[00:53:53] Speaker 02:
I just want to direct you to what I said.

[00:53:54] Speaker 02:
But we have this regulatory regime in place.

[00:53:56] Speaker 02:
And an important fact here that, in many ways, I think really addresses, as a factual matter, the aging management issue is that the

[00:54:08] Speaker 02:
The modeling that the agency performed included a so-called random failure rate of equipment that accounts for failures of equipment due to aging or at least is a suitable proxy for that such that

[00:54:24] Speaker 02:
the contentions that the petitioners have raised largely go by the wayside and fall well within the margin we're talking about here.

[00:54:33] Speaker 02:
Although we didn't need to do this because of the robustness of the regulatory regime, we still factored in or we still factor into the analysis the potential for equipment failures, including equipment failures due to age.

[00:54:51] Speaker 02:
Thank you.

[00:54:53] Speaker 01:
Thank you very much, Councilman.

[00:54:54] Speaker 01:
Thank you, Your Honor.

[00:54:59] Speaker 01:
Mr. Rund?

[00:55:09] Speaker 03:
Good morning.

[00:55:09] Speaker 03:
May it please the court.

[00:55:10] Speaker 03:
It's Jonathan Rund for the interveners.

[00:55:12] Speaker 03:
I just want to start out by noting the Seventh County decision makes clear that the scope and the depth of an EIS or matters against substantial deference heard the petitioners try to say that it's really only about indirect impacts and cumulative impacts.

[00:55:26] Speaker 03:
And I think it's pretty clear if you look at part 2a of the Supreme Court decision, it covers a lot more.

[00:55:30] Speaker 03:
I want to spend a lot of time on that.

[00:55:33] Speaker 01:
I think it just begs the question, though.

[00:55:35] Speaker 01:
I think you would not disagree that

[00:55:38] Speaker 01:
We can't divert to something that doesn't consider all relevant factors, issues, in a reasoned way.

[00:55:47] Speaker 03:
Precisely.

[00:55:48] Speaker 01:
And I think that 100- That's really what this case is about.

[00:55:51] Speaker 03:
Yeah.

[00:55:51] Speaker 03:
And if I could turn to that, I mean, the 100-page accident analysis, I think it's well within the zone of reasonableness.

[00:55:58] Speaker 01:
I did not read the opinion in Seven County to say count the pages if those pages aren't talking about the right issues.

[00:56:06] Speaker 03:
Precisely.

[00:56:06] Speaker 01:
And the issues here... It's so awkward looking here and not projecting forward because that's out of scope.

[00:56:16] Speaker 01:
I just don't know what to do with that.

[00:56:17] Speaker 01:
That's out of scope?

[00:56:20] Speaker 01:
How can a license renewal for 25 or 30 years into the future say that what's going to happen to weather, and there's lots of reason to believe it's going to get worse, is out of scope?

[00:56:36] Speaker 03:
I think it's best to read those out of scope comments.

[00:56:39] Speaker 03:
And then the comment response to that is essentially meaning the agencies exercising its judgment about really how much margin and what's built into the analysis.

[00:56:48] Speaker 01:
If you look at- That's not what out of scope means.

[00:56:52] Speaker 01:
It's just not what it means, right?

[00:56:54] Speaker 01:
That's not... I just don't know how you can say that's what it means.

[00:57:01] Speaker 01:
What is out of scope?

[00:57:02] Speaker 01:
As I said there,

[00:57:03] Speaker 03:
If we look at JA 221, I mean, one of the sentences that talks about it being out of scope goes on to discuss the margin issue and what's been done on a site-specific basis for severe accidents.

[00:57:21] Speaker 01:
So if you look at what's actually in the analysis... The CDC disagrees that the impacts of future climate change and mitigation should be considered for postulated accidents.

[00:57:34] Speaker 01:
The impacts of future changing phenomena on nuclear power plant hypothesized accidents are outside the scope of this GEIS and rulemaking.

[00:57:46] Speaker 03:
I think what they're saying is two things.

[00:57:48] Speaker 03:
One thing, if you continue forward, that the NRC considered updated information about site-specific external events.

[00:57:56] Speaker 01:
If you turn to a PENX E... Updated as in like

[00:58:03] Speaker 01:
before the filing of this license application.

[00:58:07] Speaker 01:
Do you have any reason to think updated means a projection for the next 30 years?

[00:58:12] Speaker 03:
Well, absolutely.

[00:58:13] Speaker 03:
So first of all, the plans are designed.

[00:58:15] Speaker 01:
This decision doesn't say when we said existing and updated information, we actually engaged in the very analysis of impacts of future climate change we just disavowed.

[00:58:27] Speaker 01:
What evidence is there that they look forward into the period when the license renewal would be operating?

[00:58:35] Speaker 03:
I think it's important to have

[00:58:37] Speaker 03:
the context for how the NRC regulates these issues.

[00:58:39] Speaker 03:
The plants are designed, as the petitioner said, to look at information that's in the historical record.

[00:58:45] Speaker 03:
But the part that get left out is historical margin, sorry, the historical record counting for unknowns, accounting for margins.

[00:58:53] Speaker 03:
So there's cushion that's built in to have the plants are designed.

[00:58:56] Speaker 01:
And since the plants were originally designed- Cushion speaks to the question of how much cushion and what informed the size of the cushion.

[00:59:03] Speaker 01:
And cushion was not considered

[00:59:06] Speaker 01:
with any analysis of future risk during the period of this license renewal, it doesn't do much to say if everything stays the same as it did for the last 40 years, we have so much cushion.

[00:59:21] Speaker 03:
Nobody's assuming that things stay the same or static.

[00:59:24] Speaker 03:
The analysis that's in Appendix E is relying on the latest severe accident mitigation alternative analyses that have been done for licensing rules up through the past couple of years.

[00:59:34] Speaker 01:
What are they based on?

[00:59:36] Speaker 01:
Is it past weather events?

[00:59:39] Speaker 03:
It's up to each licensee to go forward and present that information.

[00:59:42] Speaker 03:
They're basing it on their most sophisticated probabilistic analysis that they use for the plan.

[00:59:49] Speaker 01:
What are the inputs?

[00:59:50] Speaker 01:
Is it past weather events up to the time of whatever reasonable time before I actually file it?

[00:59:57] Speaker 03:
The latest information up until the applications.

[00:59:59] Speaker 01:
When do you say the latest actual information of events that have occurred or is it the latest information about prognosticated future climate change?

[01:00:10] Speaker 01:
Those are two different things.

[01:00:12] Speaker 01:
Which is it?

[01:00:15] Speaker 03:
I don't think the record spells it out in that detail.

[01:00:20] Speaker 01:
I think there's plenty that says you look at the past trend, the past trend of climate change.

[01:00:29] Speaker 01:
And that's what the companies are doing.

[01:00:33] Speaker 01:
And there's nothing other than this line about future climate change being out of scope that tells me that anyone that the agency requires

[01:00:45] Speaker 01:
Maybe you can tell me a particular plant that has actually done this, but on the record, the requirements that are on the record now are not about prognosticating climate change risk for the next 30 years and its impact.

[01:01:00] Speaker 01:
And we are seeing storms that will exceed any margin.

[01:01:06] Speaker 03:
I think it's important, another thing to keep in mind is that the plants are updating to deal with climate change.

[01:01:11] Speaker 03:
We talk about, for example, in our brief after the Fukushima accident that the NRC requested information from licensees on updated flooding analysis to do that forward looking.

[01:01:21] Speaker 03:
We talk about one of those examples, the Turkey Point plant at page 30 to 31, footnote 67 and 34 of our plant where the NRC

[01:01:30] Speaker 03:
at the NRC direction, the licensee went ahead and did that projection looking at sea level rise up to 20 years.

[01:01:37] Speaker 03:
And as part of that, they looked out to 100 years, even though it's well beyond the license life.

[01:01:42] Speaker 03:
And the licensee was required to update their licensing basis to make sure that they can account for that.

[01:01:49] Speaker 03:
And I think the fact that that is done.

[01:01:52] Speaker 01:
Turkey point are all the rules require after Fukushima every licensee licensee every licensee got your forward projection on protection against.

[01:02:03] Speaker 01:
Hurricanes or the extraordinary amount of sort of what even just water that was is coming in.

[01:02:12] Speaker 03:
Every licensee got the requirement to look at what their unique hazards are.

[01:02:21] Speaker 03:
We have some plants that are on rivers, some that are on lakes, others that are on the coast.

[01:02:25] Speaker 03:
And every licensee was required to look at what was relevant to them.

[01:02:30] Speaker 03:
Some have more seismic risks, some have flooding.

[01:02:32] Speaker 03:
And the NRC provided extensive oversight of that.

[01:02:35] Speaker 03:
And they've since institutionalized that process.

[01:02:40] Speaker 01:
It's just too vague for my question is, did, and this may be there's a simple answer, did NRC say that in deciding whether you are now safe against a Fukushima size tidal wave or that type of earthquake or similar hurricane force, you know, storm rise,

[01:03:11] Speaker 01:
project forward 100 years, as to the point you tell me did.

[01:03:17] Speaker 03:
I don't know that everybody was required to look at 100 years.

[01:03:21] Speaker 01:
Did nothing require them to look forward?

[01:03:24] Speaker 01:
Did anything require them to look forward 50 years?

[01:03:28] Speaker 03:
There was a requirement to look at what the relevant risk was for that plan.

[01:03:31] Speaker 03:
It obviously doesn't make sense to worry about sea level rise if you're on the mists of the river.

[01:03:35] Speaker 01:
It depends on what the relevant risk is.

[01:03:36] Speaker 01:
Did the relevant risk include

[01:03:39] Speaker 01:
forward-looking yes right fukushima's in the past the next one's going to be worse did anyone okay what in the regulation or what can you point me to that says they were required to look forward to increased risk beyond what we saw in fukushima or was it just to protect against what happened in fukushima

[01:03:59] Speaker 03:
No, the NRC went well beyond what was just fighting the last battle, essentially, and looked at what specific things would be relevant to different plants based on their unique environment.

[01:04:12] Speaker 01:
And I can't say that there's a... What do they require those that are on a coast to do?

[01:04:18] Speaker 03:
The only one I'm familiar with, because we cited in our brief, was the Turkey Point Plan, where they did do a full flooding reevaluation.

[01:04:28] Speaker 03:
And based on that analysis, which gets a lot of NRC oversight and review, they went ahead and looked at the sea level rise projections.

[01:04:37] Speaker 03:
NRC verified that modeling does inspection.

[01:04:40] Speaker 03:
NRC has since

[01:04:41] Speaker 03:
realize that this is not going to be a one and done situation.

[01:04:45] Speaker 03:
Post Fukushima we want to make sure they want to make sure that we are on top of these issues.

[01:04:51] Speaker 03:
We in the industry on an ongoing basis and they've since institutionalized an ongoing program to look at ongoing hazards.

[01:04:58] Speaker 03:
That's discussed.

[01:04:59] Speaker 03:
I think that's what's alluded to in terms of the general NRC oversight.

[01:05:04] Speaker 01:
What is ongoing?

[01:05:05] Speaker 01:
You just said ongoing hazards.

[01:05:09] Speaker 01:
What does it mean to say ongoing?

[01:05:11] Speaker 01:
Does that mean current level?

[01:05:13] Speaker 03:
I may have misspoke.

[01:05:14] Speaker 03:
I mean, it's an ongoing process to look at the latest hazards information.

[01:05:18] Speaker 03:
So if there's a new study that comes out from NOAA on hurricanes, NRC, through its interagency process, is plugged into that.

[01:05:28] Speaker 03:
They're plugged into the academic community to make sure that they're looking at it and they could figure out which plants

[01:05:34] Speaker 03:
are affected by those hazards and which aren't similarly with with seismic type issues.

[01:05:39] Speaker 03:
So it's an ongoing process to make sure that we're not waiting until license rule to address those issues.

[01:05:44] Speaker 01:
I think that's so on top of this is already doing this, you know, making sure your plants are protected against forecasted harms, reasonably forecasted harms.

[01:06:01] Speaker 01:
Why was it?

[01:06:03] Speaker 01:
So out of scope not to have it addressed in the generic EIS.

[01:06:07] Speaker 01:
They've got the capability.

[01:06:09] Speaker 01:
They're doing it.

[01:06:09] Speaker 01:
If it's part of the risk, but they're enforcing, why is it not in the generic EIS?

[01:06:17] Speaker 03:
I'd submit that the NRC made the technical judgment that it is bounded.

[01:06:21] Speaker 03:
It looked at the increased risk.

[01:06:23] Speaker 01:
Sorry, it is bounded?

[01:06:23] Speaker 03:
I don't know what that means.

[01:06:27] Speaker 03:
The context of which the severe technical 100 page analysis, but the NRC looked at the latest hazard information that's available based on licensed renewal applications that had site specific.

[01:06:40] Speaker 03:
risk from flooding and seismic issues and basically determined if you look in the J87 to 89 or the more detailed document at 256 to 257 it looked at the latest external events.

[01:06:55] Speaker 03:
External event is a technical term that covers a whole lot of things including the types of risks we're talking about from climate risk and the NRC actually said you know what since we looked at this issue

[01:07:07] Speaker 03:
in detail in 1996, actually those risks could be higher.

[01:07:11] Speaker 03:
They can be four to five times higher.

[01:07:13] Speaker 03:
But the environmental risk isn't just the probability of an event happening, such as a flood.

[01:07:22] Speaker 03:
Environmental risk is what happens offsite in terms of the impacts to the environment and the impacts to the public.

[01:07:30] Speaker 03:
And based on other new information, the NRC found

[01:07:34] Speaker 03:
there would be 120 times reduction in risk.

[01:07:38] Speaker 03:
And what the NRC I think is saying on page, I think it's fair reading of what they're saying in response to the climate change comments on page 221 is that when you have 120 time reduction in risk for things that have to do with source term, what material might get released to the environment, and you have a four to five times increase from the potential

[01:08:02] Speaker 03:
of external hazards, 120 is way swamps and cancels out any potential increase that you have from increased external hazards, including anything that might be related to climate change.

[01:08:15] Speaker 03:
And so when the NRC is saying the large margin can account for a variety of uncertainties, including imperfectly quantified factors in the risk analysis, and they're doing that in response to comments on the climate change issue, I think they're exercising the type of technical

[01:08:32] Speaker 03:
judgment and expert opinion.

[01:08:34] Speaker 01:
It's out of scope and so much of it seems to be backwards looking.

[01:08:39] Speaker 01:
But anyhow, I think we're over time here.

[01:08:41] Speaker 01:
Do you want to wrap up in one sentence?

[01:08:44] Speaker 03:
Yes, just briefly, I think make the point that I think NRC has done a very comprehensive analysis and they certainly responded to the issues and pointed back to the technical analysis that addressed the precise issues in terms of what external events are and they've quantified those in a very sophisticated manner.

[01:09:07] Speaker 03:
I think that's precisely the type of technical judgment that the Supreme Court has said is entitled to the court's

[01:09:14] Speaker 01:
Thank you.

[01:09:15] Speaker 01:
Ms.

[01:09:15] Speaker 01:
Perrin, we'll give you three minutes.

[01:09:24] Speaker 06:
Thank you.

[01:09:25] Speaker 06:
I'd like to point the court's attention to Baltimore Gas and Electric versus gets NRC.

[01:09:33] Speaker 06:
That's cited by everybody.

[01:09:35] Speaker 06:
And that case, in that case, and I think it's cited in seven county, that involved a generic impact statement.

[01:09:41] Speaker 06:
And the Supreme Court said,

[01:09:43] Speaker 06:
NRC, you can do this, but you have to do it right.

[01:09:47] Speaker 06:
You have to comply with NEPA.

[01:09:49] Speaker 06:
Because the point of a generic impact statement is down the road, this thing is going to be applied in individual licensing proceedings.

[01:09:57] Speaker 06:
Those findings are going to be binding, and it's going to be tough on the public to challenge that.

[01:10:03] Speaker 06:
So do it right now.

[01:10:04] Speaker 06:
Do it correctly now.

[01:10:06] Speaker 06:
And what we have here is an EIS that purports to deal with accident risk for the foreseeable future.

[01:10:14] Speaker 06:
Let me ask you this.

[01:10:14] Speaker 06:
Yes.

[01:10:15] Speaker 05:
You commented on the draft EIS, right, your client?

[01:10:18] Speaker 05:
Yes.

[01:10:20] Speaker 05:
What, if any, comment that you made in that process was not responded to?

[01:10:30] Speaker 05:
Were there any comments that you made that were not, that the agency failed to respond to?

[01:10:36] Speaker 06:
No, it was the response that this is out of scope.

[01:10:40] Speaker 06:
That response is what we're here challenging.

[01:10:43] Speaker 05:
This is out of scope.

[01:10:44] Speaker 05:
Didn't they explain further why it was out of scope?

[01:10:50] Speaker 05:
Yeah, they said- She used the tabrass tacks.

[01:10:52] Speaker 06:
Yeah.

[01:10:53] Speaker 05:
Not playing poker.

[01:10:54] Speaker 06:
Sure.

[01:10:56] Speaker 05:
There's a rule of prejudicial error.

[01:10:58] Speaker 05:
Yes.

[01:10:58] Speaker 05:
And then there's language in seven county about, this is a procedural statute.

[01:11:04] Speaker 05:
It's not about outcomes.

[01:11:07] Speaker 05:
And if ultimately the agency might've used the words out of scope, but in doing so and in explaining that and in responding to your and other comments,

[01:11:21] Speaker 05:
they were making the point that they felt that other avenues, other safety regulations, other procedures, other things that were done were going to address this issue, then tell me how you're armed.

[01:11:45] Speaker 06:
Because they didn't support they didn't support what they said they said essentially they said we did a safety analysis with these big margins and that pretty much you could put the kitchen sink in there and it's not going to affect anything and.

[01:12:00] Speaker 06:
And that, to us, was not NEPA compliance because they didn't support it.

[01:12:05] Speaker 06:
There is nothing in that EIS where they gave us, what's the data?

[01:12:11] Speaker 06:
What's the analysis to say this?

[01:12:13] Speaker 06:
There's nothing there.

[01:12:14] Speaker 06:
So a response to comments is, yeah, there's a response, but it's totally inadequate.

[01:12:19] Speaker 06:
And we see in the NRC's brief, after they tell us, we're the world's experts on accident risk, and then in their briefs they say, we don't know how to talk about climate change.

[01:12:30] Speaker 06:
We need to see that.

[01:12:32] Speaker 05:
So, it's a NEPA violation for an agency to respond to something without adequate support.

[01:12:37] Speaker 06:
Correct.

[01:12:39] Speaker 06:
Correct.

[01:12:40] Speaker 06:
And I just want you to go ahead.

[01:12:42] Speaker 05:
And your best case for that is what?

[01:12:46] Speaker 06:
Is the Administrative Procedure Act.

[01:12:50] Speaker 06:
NEPA requiring a rule of reason.

[01:12:53] Speaker 05:
A response to comment has to have— I mean, what you're saying sounds to me like

[01:13:00] Speaker 05:
like we are judging the substance of their response and whether their response was sound and adequately supported in an area of addictive and scientific judgment and all of those things where we've been told that deference is supposed to be at its height.

[01:13:26] Speaker 06:
But if there's nothing there, if the NRC, it's clear that the NRC isn't looking at climate change.

[01:13:35] Speaker 06:
They don't have climate change regulations.

[01:13:37] Speaker 06:
They don't even have a climate change policy.

[01:13:41] Speaker 06:
They say,

[01:13:42] Speaker 06:
Who wrote the response to comments?

[01:13:45] Speaker 06:
This is a big margin of error, and lots of things could fit in there.

[01:13:49] Speaker 06:
And we did comment, you're putting an awful lot of things, because they said in the draft, we have a big margin of error.

[01:13:56] Speaker 06:
We said, you're trying to fit an awful lot of things in this margin of error.

[01:14:00] Speaker 06:
And there certainly is no indication that they explicitly looked at climate change.

[01:14:07] Speaker 06:
And that's a huge issue here.

[01:14:10] Speaker 06:
And it's going to reverberate.

[01:14:12] Speaker 06:
It's down decades from now in these individual cases where the failure to deal with this issue is going to bind in individual cases.

[01:14:23] Speaker 06:
And, you know, it's one thing we have to accept that a generic EIS, if they comply with NEPA, if the NRC makes

[01:14:31] Speaker 06:
supported, and I know there's discretion here, but there's got to be some findings and some data that a technical expert could evaluate and say, oh, they did look at climate change.

[01:14:43] Speaker 06:
They did look at these long-term aging effects.

[01:14:45] Speaker 06:
You can't find it.

[01:14:47] Speaker 06:
But down the road, we're going to be bound by this finding.

[01:14:51] Speaker 06:
You can't use the individual licensing proceedings to cure the defective licensed renewal, GEIS.

[01:14:58] Speaker 06:
That is Baltimore Gas and Electric.

[01:15:01] Speaker 06:
And another thing that Mr. Aberbach said, you know, we have this separate Atomic Energy Act review and then there's NEPA over here, which he referred to as a snapshot.

[01:15:12] Speaker 06:
If you go back to Calvert-Cliffs, that's an old case, one of the first NEPA cases.

[01:15:17] Speaker 06:
decided by this court, NEPA goes along with the Atomic Energy Act.

[01:15:22] Speaker 06:
It has to be included in the decision-making process.

[01:15:26] Speaker 06:
And what we see here is that the NRC really did treat it like a snapshot that you could rip up and later on, too bad for the public when we come in in individual cases and we're told we have an empty husk of a license, you know, G-E-I-S, but it binds you.

[01:15:45] Speaker 06:
we're looking for fundamental compliance with the Atomic, the National Environmental Policy Act and the Administrative Procedure Act.

[01:15:55] Speaker 04:
So I understand Baltimore Gas and Electric, you agreed that if there's new and significant information, there's the new and significant information exception, I guess, and the waiver process.

[01:16:05] Speaker 04:
So we would also, I mean, you don't disagree that those exist, you just think they're inadequate.

[01:16:11] Speaker 06:
We think that if the NRC did comply with NEPA in doing the generic EIS, these are reasonable procedures under NEPA and the APA.

[01:16:24] Speaker 06:
But the generic EIS has to comply with NEPA.

[01:16:28] Speaker 06:
You can't use the fact that we have procedures down the road to say, oh, well, try to get them to deal with this later on.

[01:16:38] Speaker 06:
We're here because the NRC decided to do a generic EIS.

[01:16:43] Speaker 06:
We didn't decide that.

[01:16:45] Speaker 06:
And we have the right to demand compliance with NEPA now.

[01:16:49] Speaker 04:
I just have one last factual question.

[01:16:52] Speaker 04:
Noah studies this very closely.

[01:16:54] Speaker 04:
Has anyone anywhere put a number on how much worse climate change is likely to make storms?

[01:17:02] Speaker 06:
I'm afraid I don't know that, Judge Garcia.

[01:17:04] Speaker 06:
I just know that what the accepted wisdom is, storms are going to get more frequent and more intense.

[01:17:13] Speaker 06:
And every time they look, it seems like it's going faster and more intensely than they thought last year.

[01:17:23] Speaker 01:
Thank you very much, all counsel.

[01:17:25] Speaker 01:
The case is submitted.