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A Nuclear Regulatory Commission panel will hear arguments Tuesday about whether two citizen groups can challenge Energy Harbor’s application to extend the life of Ohio’s Perry nuclear plant through 2046.
The Ohio Nuclear-Free Network and Beyond Nuclear say they are worried about potential radioactive leaks into Lake Erie, as well earthquake risks that were not understood four decades ago when the plant was originally licensed. They also question whether the company adequately considered whether relicensing is necessary.
Both Energy Harbor and the NRC staff oppose the groups’ petition to intervene, which would give the anti-nuclear advocates a formal role as parties in the case, with the right to submit and challenge evidence at a hearing.
“The idea of having an adversarial proceeding is for us at least to have a chance to scrutinize the evidence more closely than the NRC staff might,” said Terry Lodge, an attorney in Toledo who represents the Ohio Nuclear-Free Network and Beyond Nuclear in the case.
However, it’s not unusual for the Nuclear Regulatory Commission’s staff to seek to limit interventions, according to national experts on nuclear licensing cases.
In general, “the ways they construct their rules on hearings and standards are very restrictive,” said Diane Curran, an attorney who works on nuclear power plant issues and is not involved in the case. And companies that want to keep their plants running have had a winning track record for getting license renewals granted.
The environmental groups’ reply brief said they plan to withdraw their contentions about earthquake risks, which the NRC staff argued can be “addressed by ongoing regulatory processes.” Although new information came to light after the plant began operating, those risks presumably existed when the plant was first licensed. So, the staff said, they don’t belong in a relicensing case.
Beyond Nuclear and the Ohio Nuclear-Free Network argue that neither the renewal application nor its environmental report address the impacts of radioactive tritium or other radionuclides that can leak from the plant, including how they might interact with other contaminants in Lake Erie. Energy Harbor’s environmental report filed with its application notes that tritium was found in groundwater wells near the site in 2020 and 2021. The groups’ reply said they provided enough information to show there is an issue, whose merits would be decided later based on evidence at a hearing.
The groups also argued that Energy Harbor’s environmental report exaggerated the potential adverse consequences if the plant shuts down, and that understanding the actual consequences matters when it comes to considering alternatives that could avoid or mitigate environmental risks posed by the plant.
It’s unclear how much consideration the groups’ concerns will get if their petition to intervene is denied.
“The NRC’s technical review process includes multiple opportunities for the community near a plant to provide input on potential environmental impacts of license renewal,” said Scott Burnell, a public affairs officer at the commission. “The NRC technical staff consider this input to ensure our review appropriately addresses matters under the agency’s jurisdiction.”
But that consideration would not take place in the context of a public hearing, Lodge said. And there’s no guarantee about how deeply the staff would consider different issues in its back-and-forth communications with Energy Harbor. It’s “very optional,” he said.
And while the commission must publish its proposed environmental impact statement for public comment, its rules also make it hard to raise issues after the fact. The NRC often treats various issues as “generic,” even though the law calls for a site-specific consideration, Lodge said.
“The NRC has basically constructed the rules around relicensing to make them a very pro forma process,” said Tim Judson, executive director for the Nuclear Information and Resource Service. Generally, the main focus is on whether a company has an adequate “aging management program, to be able to monitor and repair things as needed.”
Connie Kline, a member of the Ohio Nuclear-Free Network, said she was surprised that the NRC staff was “so virulent” in opposing the groups’ participation in the case and basically echoing Energy Harbor’s points. From her perspective, that’s worrisome, because the agency’s job is to regulate industry in order to protect the public.
“We call NRC, in many respects, a lap dog and not a watchdog,” Kline said.
Members of the public may listen to but not comment during the oral argument and prehearing on Jan. 30. A Jan. 22 notice from the NRC provided the dial-in number, but did not state the time to call. A separate Jan. 4 order says the proceeding will start at 1:30 p.m. Eastern time.
An Ohio commission is arguing its decisions last fall to allow oil and gas drilling under a state park and two wildlife areas are final and cannot be appealed.
Environmental groups challenging the Ohio Oil & Gas Land Management Commission say it failed to follow state law when it approved land parcels for leasing of drilling rights at Salt Fork State Park, Zepernick Wildlife Area and Valley Run Wildlife Area. Among other things, state law says the commission must consider nine factors in reaching its decisions, including environmental impacts, consequences for visitors or users of state lands, public comments or objections, economic issues, and others.
State lawyers have filed a motion to dismiss, claiming the court can’t review the decisions because the statute doesn’t expressly provide for judicial review.
The plaintiffs seeking to overturn the decisions, though, say the commission’s actions affect their rights and amounted to licensing, which can be appealed under the Ohio Revised Code.
“Our courts play a critical role in overseeing agency decisions to make sure agencies do not abuse the discretion and power the law gives them. Our lawsuit asks that the court provide that critical oversight here,” said Megan Hunter, an attorney with Earthjustice, on behalf of the plaintiffs. Those environmental groups are Save Ohio Parks, the Ohio Environmental Council, the Buckeye Environmental Network and Backcountry Hunters and Anglers.
“Ohio statute has set up a system where an oil and gas company can hand-select those public lands it wants to lease and ask the commission for permission to move forward with the process for it to do so,” Hunter added. “The law places the commission in a gatekeeping role, making them the ones to determine whether an oil and gas company should be able to lease a particular state park or wildlife area.”
And while a winning bidder has to apply for permits to drill, Ohioans generally have no right to appeal permitting decisions, she said. “Therefore, the appeal from the nominations is when there is an opportunity for judicial review of the decision to drill under these state lands.”
Commission chair Ryan Richardson admitted that the commission would need to consider the nine statutory criteria in a Nov. 2 affidavit filed in a related case. Yet the commissioners did not discuss all nine factors at the public meeting where they voted to grant the proposals. Nor did they provide any written opinion explaining how they weighed the nine criteria.
“This is not the way justice is supposed to happen in Ohio or anywhere else in a democracy,” said Melinda Zemper, a member of Save Ohio Parks.
The case is further complicated by the commission’s insistence on moving ahead before the Ohio Attorney General’s office resolves an investigation into claims about allegedly falsified comments that favored fracking under state parks and wildlife areas.
“The [commission’s] decision to approve fracking in Ohio parks undermines core principles of good governance, for it occurred despite an ongoing investigation and enormous public pushback,” said Chris Tavenor, associate general counsel and managing director of democracy policy for the Ohio Environmental Council. The decisions also mean Ohio will be a less healthy place to live and have more greenhouse gas emissions, he said. As of 2021, the Energy Information Administration ranked Ohio fifth among states for total carbon dioxide emissions, he noted.
The commission’s failure to let citizens testify at its meetings also undermined the trust of Ohio citizens and denied them their rights to participate in the process, said Loraine McCosker, a co-founder and member of Save Ohio Parks. A separate lawsuit challenges the constitutionality of House Bill 507, which jump-started the challenged decisions, but where citizen groups had no chance to testify against its natural gas provisions after they were added through last-minute amendments in late 2022.
The appeal doesn’t automatically stay the public bidding period for the drilling rights, which began Jan. 3 and runs through Feb. 4. Spokesperson Andy Chow said the commission does not comment on pending litigation. However, he noted, the commission is currently working to schedule its next meeting to decide on the winning bids.
Once companies have secured drilling rights, they would be free to apply for permits to drill wells. Ohio law generally provides up to 21 days for review of those applications, except for urban areas, where a 30-day review period applies. The average review time generally has been running 15 to 18 days, Chow said. So, barring any stay from a court, well construction could start as early as this spring.
Briefing on the question wrapped up last week in the Franklin County Court of Common Pleas, and the state’s motion to dismiss is now ready for review by Judge Jaiza Page.
Connecticut’s utilities commission is the latest to begin offering payments to help environmental justice and ratepayer groups participate in regulatory proceedings.
The Stakeholder Group Compensation Program was required to take effect this month as part of an energy consumer protection bill passed by the state legislature last year. It seeks to encourage more diverse engagement in proceedings on utility regulation, which can set direction for grid resiliency, rate relief, clean energy development, corporate accountability, storm response and more.
In a Jan. 3 decision and new online guidance, the state’s Public Utilities Regulatory Authority (PURA) says each eligible stakeholder group can apply for up to $100,000 at a time. Each docket is limited to $300,000 in funding across all groups, with $1.2 million total available per year.
The program covers groups and nonprofits representing at least one of a few types of utility customers: a person living in a designated environmental justice community; a “hardship” case, defined as someone seeking to reinstate shut-off electric or gas service in winter who cannot pay their bill; or a small business.
“The process of engaging with proceedings at public utility commissions across the nation is historically exclusive,” wrote Jayson Velazquez, the climate and energy justice policy associate with the nonprofit Acadia Center, in comments on the PURA docket creating the new program. “Compensation can play a significant role in ensuring diverse stakeholders are included in proceedings, specifically at PURA.”
Groups that might use the program say this approach, which has also been contemplated at the federal level, is an important step forward — and they argue that more can be done to encourage inclusive engagement in regulators’ work on climate and economic justice issues.
Mark LeBel, a senior associate with the Regulatory Assistance Project, a nonprofit energy consulting firm, said the concept of intervenor compensation dates back decades and goes hand-in-hand with other consumer protection initiatives, like citizen utility boards and stronger ratepayer advocate offices.
The idea is regaining steam amid a trend toward more attention on equity and the overall mechanics of utility regulation, LeBel said.
“Each state spends implicitly millions of dollars to support utility regulatory participation,” he said. “It’s a perfectly reasonable idea to apply a version of that to other parties, including those in need.”
Six states have similar, active programs: Idaho, Michigan, Minnesota, Oregon, Wisconsin and California, the largest such program in the country with $10 to $15 million in payouts per year, according to a 2021 report from the National Association of Regulatory Utility Commissioners. A handful of other states have authorized such a program but don’t use it in practice, the report said.
Perfecting the scope of these programs can be tricky, LeBel said. In designing rules and setting funding levels, legislators and regulators may choose either to target money narrowly to the groups that need it most — or to cast a wider net to a range of stakeholders.
Lillian Brough, associate director of the Connecticut-based energy nonprofit Efficiency For All, noted this trade-off as she reviewed the new PURA program’s details.
Brough said her organization’s executive director Leticia Colon de Mejias, a longtime Connecticut environmental justice advocate, has participated in several PURA proceedings over the years, but they don’t have designated staff or resources for this complex work and can’t currently prioritize it as a result.
This means the new compensation program could greatly benefit Efficiency For All in theory, Brough said, especially “if we were fully funded in other areas,” such as in their energy efficiency workforce training program.
In practice, however, Brough saw a range of barriers to actually applying for and using the new funding to participate in PURA work — including a tight application window of two weeks at the beginning of a case, potentially onerous rules for proving a group needs funding up-front rather than reimbursement after the fact, and the challenge of writing an itemized budget ahead of time with limited PURA experience.
“How am I supposed to know my budget if I don’t know how much lawyers are going to cost, how many hours it’s going to take, how many people — I don’t know unless I’ve already participated,” Brough said.
In its online guidance, PURA says the new funding may be used for “reasonable attorneys’ fees, reasonable expert witness fees and other reasonable costs for preparation and participation in Authority proceedings.”
In all, Brough felt the new program would fit best for larger or better funded organizations — those with firsthand knowledge of what participation requires, such as hiring attorneys and expert witnesses or translating questions and comments in and out of regulatory jargon. In some states, like California, certain frequent utility intervenors make this kind of funding a major recurring part of their budgets.
Though the PURA program nominally seeks to benefit the ratepayers and communities that are the most disenfranchised, Brough argued that many smaller groups representing these people may be too overstretched to even navigate the application process.
In the Acadia Center’s comments on the new program’s docket, Velazquez said PURA should also begin a broader look at equity and inclusion across all of its work, similar to a docket now underway in Hawaii.
Brough also raised concerns about what LeBel of the Regulatory Assistance Project said is a relatively common feature of these compensation schemes: To get paid, groups must make a “substantial contribution” to the proceeding.
The PURA order creating the program says regulators will define this case-by-case, but emphasizes an intervenor’s active engagement throughout the process and its capacity to provide “unique or meaningful” facts and perspectives — contributions that “substantially assist the Authority in its decision making.”
Brough said she would worry about subjective interpretations of this leading to further disenfranchisement: “Like, ‘you came to all the meetings, but you didn’t say as much as we wanted, or we didn’t agree with you, or you caused a ruckus, so you can’t have the money.’ So that’s a problem.”
LeBel said ideally such requirements as part of these programs will be relatively loose and forgiving, a low bar designed to prevent funds from going to waste.
PURA’s order points to the program’s basis in utility rates in explaining this approach: “The cost of stakeholder group compensation is ultimately borne by ratepayers, and the substantial contribution requirement ensures that the interests of customers are meaningfully being represented in exchange for that compensation,” the commissioners wrote in their order.
In their comments on the docket, Connecticut’s utilities sought more clarity on the timing of this cost recovery process and its application to gas companies as compared to electric utilities. PURA did not appear to adopt the utilities’ requested changes on this issue in its final order.
“While PURA did not grant our reasonable request on full cost recovery, we look forward to having more stakeholders participate in the regulatory process and share their views, as we always value and appreciate feedback from our customers,” said Eversource spokesperson Jamie Ratliff in a statement.
The Connecticut gas and electric companies owned by Avangrid, including United Illuminating, said in a statement from spokesperson Sarah Wall Fliotsos that they “appreciate the creation of a program that will provide underrepresented groups greater voice in the important issues the energy industry currently faces, including grid modernization and the transition to a clean energy future.”
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