ML023330071
| ML023330071 | |
| Person / Time | |
|---|---|
| Site: | Palo Verde  (NPF-041) |
| Issue date: | 11/25/2002 |
| From: | Tharpe M Neal R. Gross & Co. |
| To: | Office of Nuclear Reactor Regulation |
| Byrdsong A T | |
| References | |
| +adjud/rulemjr200506, 50-528-OLA, ASLBP 03-804-01-OLA, NRC-667, RAS 5033 | |
| Download: ML023330071 (32) | |
Text
RIA6 5o33 Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Arizona Public Service Company Palo Verde Nuclear Gdnerating Station, Unit 1 Docket Number:
Location:
50-528-OLA (telephone conference)
DOCKETED USNRC November 27, 2002 (11:19AM)
OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF Monday, November 25, 2002 Work Order No.:
NRC-667 Pages 1147-1176 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433 j~a~pc~ 7 L
- TEC/-
03.9 EY' A
Date:
1147 1
UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
+++++
4 ATOMIC SAFETY AND LICENSING BOARD PANEL 5
LICENSING RENEWAL 6
TELEPHONE CONFERENCE CALL 7
x 8
IN THE MATTER OF Docket Nos.
9 ARIZONA PUBLIC SERVICE CO.
50-528-OLA 10 Palo Verde Nuclear 11 Generating Station, 12 Unit 1 13 x
14
- Monday, 15 November 25, 2002 16 The above-entitled matter came on for hearing, 17 pursuant to notice, at 11:00 a.m.
18 BEFORE:
19 THE HONORABLE ANN MARSHALL YOUNG, Chair 20 THE HONORABLE DR.
RICHARD F.
COLE 21 THE HONORABLE THOMAS D.
MURPHY 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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APPEARANCES:
2 On Behalf of the Licensee, Arizona Public 3
Service Company:
4 JOHN E.
MATTHEWS ESQ.
5 THOMAS SCHMUTZ, ESQ.
6 Of:
Morgan Lewis & Bockius, LLP 7
1111 Pennsylvania Avenue, N.W.
8 Washington, DC 20004 9
(202) 739-5524 10 11 On Behalf of the Nuclear Regulatory Commission:
12 SHERWIN E.
- TURK, ESQ.
13 CASSIE GRAY, ESQ.
14 KATHRYN WINSBERG, ESQ.
15 U.S. Nuclear Regulatory Commission 16 Office of the General Counsel 17 Washington, DC 20555-0001 18 (301) 415-1575 19 20 ALSO PRESENT:
21 Jack Donohew 22 William Ruland 23 Thomas Saporito 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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P-R-O-C-E-E-D-I-N-G-S 2
11:00 a.m.
3 JUDGE YOUNG:
Let's go ahead and go on the 4
record.
Judge Cole and Judge Murphy are here with me.
5 This is Judge Young.
Mr.
- Turk, why don't you 6
introduce everyone who's with you?
7 MR.
TURK:
Thank you, Your Honor.
My name 8
is Sherwin Turk.
I'm an attorney with the NRC Staff.
9 With me in the room is Kathryn Winsberg, who is Acting 10 Associate General Counsel, Reactor Program Division of 11
- OGC, and Ms.
Cassie Gray, who's an attorney with our 12 office, OGC.
Also present is Mr. Jack Donohew, who is 13 Project Manager for Office of Nuclear Reactor 14 Regulations, and Mr. William Ruland, who is Director 15 of Project Directorate 4 with NRR.
16 JUDGE YOUNG:
I think probably you'll need 17 to spell all those names.
18 MR.
TURK:
May I note also, Your Honor, I
19 don't know is Mr. Saporito is on the phone yet.
20 MR.
SAPORITO:
He is.
21 MR.
TURK:
Okay.
I hadn't heard his name.
22 Let me go back to the names that I mentioned.
First 23 was Kathryn Winsberg, K-A-T-H-R-Y-N, Winsberg, W-I-N 24 S-B-E-R-G.
Cassie Gray is C-A-S-S-I-E G-R-A-Y.
Jack 25 Donohew, last name is D-O-N-O-H-E-W.
William Ruland, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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R-U-L-A-N-D.
2 JUDGE YOUNG:
Thank you.
And then, Mr.
3 Saporito -- court reporter, did you list him, S-A-P-O 4
R-I-T-O?
5 COURT REPORTER:
I did not, no.
6 JUDGE YOUNG:
Mr.
Saporito, do you have 7
anyone with you?
8 MR.
SAPORITO:
No, Your Honor.
It's just 9
myself.
I represent the National Environmental 10 Protection Center -
11 JUDGE YOUNG:
Okay.
12 MR.
SAPORITO:
as its Executive 13 Director.
14 COURT REPORTER:
Could I get a spelling on 15 your last name?
16 MR.
SAPORITO:
Sure.
It's S as in Sam, A 17 P,
like in Peter, O-R-I-T-O.
18 COURT REPORTER:
Thank you.
19 JUDGE YOUNG:
- And, Mr. Matthews?
20 MR.
MATTHEWS:
Yes, Your Honor.
This is 21 John E. Matthews from the law firm, Morgan Lewis, and 22 with me here this morning is Thomas Schmutz, that's S
23 C-H-M-U-T-Z.
And we represent the Arizona Public 24 Service
- Company, and there won't be any other 25 attorneys or representatives from APS on the call.
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JUDGE YOUNG:
Okay.
So there is anyone 2
else present that we have not introduced?
All right.
3 We want to allow all parties to make short arguments 4
on the current motion that's before us, and we may, in 5
the court of that, need to address what the status of 6
the previous Motion to Hold the Proceedings in 7
Obeyance.
- But, first, just to sort of maybe cut 8
through some things and simplify matters so that we 9
don't need to go into quite as much detail on some 10 things that do appear to be more or less clear.
I 11 just wanted to state for the record that we have 12 looked at the case law and assuming that the 13 delegation still exists from the Commission and then 14 from our Director, the NRC Staff does, under this case 15 law authority, have the authority to address, to 16 permit withdrawals of license amendment requests.
17 There's no question about that, assuming that that 18 allegation exists.
19 In this case, there are a couple of 20 unusual circumstances, and I'm not sure whether they 21 would have any effect on our ruling on the Motion to 22 Terminate, but I think it would be a good idea just 23 for the record to make sure that it's clear that the 24 Staff, before we start arguments, fill us in on the 25 status of the new notice that you had indicated was to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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be published in the Federal Register, whether that has 2
been published, whether there's anything about that or 3
the circumstances related to it that would prevent 4
this case from being viewed as moot.
5 And then also there is, to some degree, 6
some lack of clarity about the original perceived need 7
for a license amendment request, and then at this 8
point there apparently being no perceived need for the 9
license amendment request.
10 So, Mr.
Turk, maybe you and some of the 11 people with you could address those two issues before 12 we go into the actual argument so that we're all made 13 clear about -- Court Reporter, can you hear?
Are you 14 getting everything I'm saying?
15 COURT REPORTER:
- Yes, I am.
16 JUDGE YOUNG:
Okay, good.
I heard some 17 paper rustling, and sometimes that blocks people out.
18 COURT REPORTER:
I'm sorry, that was me.
19 JUDGE YOUNG:
Okay.
Mr. Turk?
20 MR.
TURK:
- Yes, Your Honor.
Let me 21 address those two questions in the order that you 22 posed them.
First, with respect to the status of the 23 license amendment
- request, as you
- know, we had 24 originally published notice of the exigent 25 circumstances license amendment request in the Federal NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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Register.
We then determined that that procedure was 2
not necessary.
We sent a letter to the licensee 3
advising them of that, I believe that was October 25, 4
and shortly thereafter the licensee sent in a request 5
to withdraw its application and, as you know, we 6
issued a letter just last week indicating that we did 7
not object to the withdrawal of the license amendment 8
request.
9 In the meantime, as I had indicated in a 10 letter to the Board previously, the Staff had sent to 11 the Federal Register a new notice that the license 12 amendment request had been received and that we would 13 be reviewing it under a non-exigent circumstance 14 basis.
We sent that off to the Federal Register, that 15 has gone to the Federal Register, and I believe it 16 will be published as part of the bi-weekly notice that 17 comes out in the Federal Register this coming 18 Wednesday, I
believe November 27 if things go 19 according to our expectations.
20 Of course, we sent that notice to the 21 Federal Register before we received the withdrawal 22
- request, and now that we have received a withdrawal 23 request and taken action on it, we'll have to issue 24 another notice to the Federal Register in which we 25 notify the public that the request has been withdrawn.
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So that the current status with respect to the Federal 2
Register is that in two days the second notice will be 3
published, but then probably two weeks later we'll be 4
publishing the notice of withdrawal.
So that's the 5
status of the notice history for this license 6
amendment request.
7 JUDGE YOUNG:
If any parties in the 8
interim file any petitions, how would you handle 9
those?
10 MR.
TURK:
We would deem them to be moot 11 because there is no pending license amendment request 12 in which a person may intervene, and we would notify 13 them of that and we would also send them a copy of the 14 notice of withdrawal.
15 JUDGE YOUNG:
All right.
Go ahead then.
16 MR.
TURK:
With respect to the -
17 JUDGE YOUNG:
Excuse me, Judge Murphy has 18 19 JUDGE MURPHY:
Mr.
Turk, this is Judge 20 Murphy.
21 MR.
TURK:
Yes.
22 JUDGE MURPHY:
Before you leave that 23 issue, can you comment on the existing status of your 24 authority to approve withdrawals?
Does the Staff 25 still have that delegation?
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MR.
TURK:
Yes, we do.
That's a standing 2
delegation, Your Honor.
We don't receive that on an 3
amendment-by-amendment basis;
- rather, we have an 4
ongoing authority to receive docket and act upon 5
license amendment requests, both in terms of granting 6
them and disposing of them, along with withdrawal of 7
them until a notice of hearing is published, which we 8
don't have yet in this case.
So that's a standing 9
delegation.
10 JUDGE YOUNG:
Okay.
And then going on to 11 the sort of underlying question about the specific 12 perceptions of the need for a license amendment 13 request.
14 MR.
TURK:
My understanding of the 15 background, and this is third party on this end 16 because I wasn't part of the proceedings that were 17 going on before the Palo Verde license amendment 18 request was received, but it's my understanding that 19 the Staff was perceived by Palo Verde, and they can 20 speak to this --
the Palo Verde applicant perceived 21 that the Staff would require the amendment to be 22 submitted and approved prior to restart of the 23 facility.
In fact, the Staff determined that that's 24 not required prior to restart, and that's why we sent 25 out our letter on October 25.
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So I
believe that whatever was Palo 2
Verde's understanding originally ended up not being 3
consistent with the Staff's determination on October 4
25 that the license amendment request need not be 5
submitted on an exigent basis or approved prior to 6
So I think there may have been some 7
confusion about that beforehand, but I think we've 8
tried to clear that up and we issued our statement in 9
writing on October 25.
10 JUDGE YOUNG:
Just to clear up all 11 confusion and get everything out on the table and sort 12 of spark this as much as possible before the argument 13 and hopefully make argument more efficient, was there 14 any difference in what the Licensee or how the 15 Licensee did the inspection under the current 16 technical specifications and how they would have done 17 it under the license amendment request?
18 MR.
TURK:
Your Honor, I think Palo Verde 19 should address that in the first instance.
I think 20 they'd be more familiar with how they were conducting 21 their inspections previously.
22 MR.
MATTHEWS:
This is John Matthews from 23 Morgan Lewis.
I think, Your Honor, the answer is more 24 or less, no, there is no difference.
The inspections 25 were conducted in a
way that would have been NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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consistent with the amendment but also that is 2
consistent with the existing tech spec requirements.
3 JUDGE YOUNG:
Thank you.
So just to recap 4
what I've heard, or my understanding of what I've 5
heard, there seems to have been some miscommunication 6
about whether a license amendment was necessary.
- And, 7
Mr. Turk, maybe you'd be best -
8 MR.
TURK:
I'm sorry, Your Honor, could 9
you repeat the question?
10 JUDGE YOUNG:
There seems to have been 11 some miscommunication or misunderstanding on whether 12 a license amendment request was necessary.
13 MR.
TURK:
Your Honor, I don't know how 14 much I can say to that.
There was a perception that 15 this would be a Staff requirement.
There had been two 16 other plants which the Staff has discovered were doing 17 inspections in a certain manner, and the Staff, in 18 discussing with those plants the nature of their 19 inspections, had obtained license amendment requests 20 from the plants in order to specify that.
And this is 21 based on a very weak understanding on my part on what 22 happened with the other plants because I was not 23
- involved, but those plants did submit license 24 amendment requests in order to modify the language of 25 the tech spec such that inspections may not be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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conducted below a certain point in the tube sheet, or 2
I should say a certain point within the tube sheet.
3 And I believe, and this is my third-hand 4
understanding, Palo Verde can correct me if I'm wrong, 5
but Palo Verde perceived that the Staff would require 6
the same of them, and it's my understanding that 7
that's probably why they submitted a license amendment 8
request.
That's supposition on my part, I'm not a 9
party to what had happened.
10 But be that as it may, we did clarify with 11 Palo Verde that we would not require this from them on 12 an exigent basis before the plant could restart from 13 their refueling outage.
So whatever the circumstances 14 were beforehand, we've examined them and determined 15 that the amendment was not necessary prior to restart 16 of the facility.
17 JUDGE YOUNG:
And am I understanding 18 correctly that by approving the withdrawal, you're in 19 a sense saying that there's no amendment necessary at 20 all and so everything is moot or is there anything 21 that has not been mooted out by the withdrawal?
22 MR.
TURK:
There is nothing that has not 23 been mooted out.
In other words, the entire license 24 amendment request is now moot.
We are developing, as 25 I believe our letter of October 25 indicated, we are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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developing generic guidance to the industry on what we 2
would like to see happen with the technical 3
specifications in this area.
And Palo Verde has 4
indicated to us that they will act in accordance with 5
the generic resolution of this issue, and we hope to 6
have that generic guidance out shortly.
I know that 7
there are it's in the works right
- now, and 8
hopefully we'll get a resolution of this on a generic 9
basis in the near future.
10 JUDGE YOUNG:
I think at this point, 11 unless there are any other questions from here, and 12 there don't appear to be, we would go to argument on 13 the Motion to Terminate, and I would ask just a couple 14 of things in your argument, and I want to keep these 15 fairly brief.
We've gone into this discussion in 16 advance of hearing arguments in large part for the 17 purpose of getting everything sort of out on the table 18 and as clear as possible so that everyone's on the 19 same page so that we don't sort of replow new ground 20 in the argument.
But I would ask APS to go first and 21 ask whether in filing your Motion to Terminate have 22 you withdrawn your Motion to Hold the Proceedings in 23 Obeyance?
24 And in all parties' arguments, I would 25 like everyone to keep in mind based on the case law NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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that we've seen the Staff does have the authority to 2
permit withdrawals as they've done in this case, and 3
unless there is anything that would cause the 4
proceedings not to be completely
- moot, then the 5
Board's duty under the law is to terminate the 6
proceedings.
7 So at this point, if there's anything that 8
would counter the authority of the Staff to permit 9
withdrawals and the duty of the Board to terminate a 10 proceeding given that the withdrawal moots everything 11 in the proceedings, our inclination would be to 12 terminate the proceedings.
I'm saying that so you'll 13 know what issues you need to address.
Then after APS, 14 I want to hear from Mr.
Saporito and the Staff.
I 15 don't know whether in permitting the withdrawal and 16 based on what you've said already that you agree to 17 APS' motion, but if you have anything, then you can 18 say that then.
19 Again, I want to see if we can keep these 20 as brief as possible without cutting off anyone's 21 right to say whatever you feel is relevant to the 22 motion or motions that are currently pending.
Mr.
23 Matthews, just to start out, what do you consider to 24 be the status of your Motion to Hold Proceedings 25 Obeyance.
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MR.
MATTHEWS:
My understanding from the 2
Board's order on Friday was essentially that that 3
Motion to Hold Proceedings in Obeyance was temporarily 4
granted, and I would ask that the Board extend that 5
status until its ruling on the Motion to Terminate.
6 JUDGE YOUNG:
I don't think that we 7
temporarily granted it.
I think what we did was we 8
said that you wouldn't be required to file any 9
response and we'd take up the motion today.
10 MR.
MATTHEWS:
Well, I guess I interpreted 11 that as a grant of extension of time to file our 12 response.
So granted, in
- part, I guess, was my 13 perception of the motion, and I would ask here today 14 that the Board extend the time for filing that 15 response and extend the time for the Staff filing any 16 pleadings until it rules on the Motion to Terminate as 17 well.
18 JUDGE YOUNG:
All right.
So then on the 19 Motion to Terminate, go ahead.
20 MR.
MATTHEWS:
On the Motion to Terminate, 21 I guess let me just recap that we were of the opinion 22 initially that no amendment to the tech specs were 23 required.
The tech specs currently require inspection 24 of a certain length of each steam generator tube.
We 25 conduct an inspection using a bobbin-coil method of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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essentially 100 percent of the steam generator tubes, 2
from cold end to hot end, and that that meets the 3
requirements of the existing tech specs.
4 In addition, there is a second kind of 5
inspection at issue, which is, I guess, the plus-point 6
probe inspection which is a
more sophisticated 7
technology that didn't even
- exist, it's my 8
understanding, when these tech specs were put in 9
place.
And the license amendment was essentially to 10 address certain aspects of that particular type of 11 inspection.
We did not believe that the amendment was 12 necessary, but based upon Staff action with respect to 13 some other plants and some other amendments that those 14 plants had submitted, we thought that it might be 15
- required, so we submitted the request, essentially 16 prudently, perceiving that the Staff might require 17 this additional detail.
18 The Staff, upon reviewing this, concluded 19 that we didn't need the amendment, which was 20 essentially in agreement with our initial position and 21 so, hence, our withdrawal.
And we've committed to 22 continue to work with the Staff on addressing the 23 detail of some of these more sophisticated inspections 24 taking place in the future.
25 I think at this point the amendment is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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withdrawn.
The Staff acted appropriately in granting 2
the withdrawal of the amendment, and there's no 3
proceeding to go forward, so I think the only thing 4
that can happen is for the Board to terminate the 5
proceeding at this point.
6 JUDGE YOUNG:
All right.
Mr. Saporito?
7 MR.
SAPORITO:
Good morning, Your Honor.
8 Our position would be that even though the Staff, as 9
the Court points out, may have requisite jurisdiction 10 to grant a licensee's withdrawal of the LAR, we don't 11 believe that the Staff acted appropriately based on 12 the fact that the NRC, through Mr. Donovan's office, 13 confirmed to us, in fact agreed with us, that the 14 technical specifications as they currently exist for 15 Palo Verde Steam Generator Unit 1 are ambiguous.
And 16 it was on that basis that the
- NRC, through Mr.
17 Donovan's office -
18 JUDGE YOUNG:
Excuse me, when you refer to 19 Mr. Donovan, are you referring to Mr.
Donohew?
20 MR.
SAPORITO:
Oh, yes, ma'am, I'm sorry 21 Your Honor, it's Donohew.
I stand corrected.
So 22 the NRC Staff acted to grant the Licensee's withdrawal 23 of the LAR based on erroneous and ambiguous technical 24 specifications which currently exist. And, therefore, 25 it's our position that the Licensee cannot demonstrate NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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with any reasonable assurance the operability of the 2
Palo Verde Unit 1 steam generator, and, therefore, 3
there is an issue outstanding before this Board which 4
should go to hearing.
5 JUDGE YOUNG:
Mr. Saporito, what the case 6
law says is that the NRC Staff has the authority to 7
approve withdrawals, and in those circumstances the 8
Board, and I'm quoting from the Commission in the 9
Vermont Yankee case of September 16, 1993 was the date 10 of the Commission's memorandum and
- order, the 11 Commission said that, "Under these circumstances, the 12 Board should issue an order indicating that the 13 Commission or its Staff has previously approved the 14 withdrawal of an application and that the proceeding 15 is being terminated, therefore, on grounds of 16 mootness."
17 So I understand that you currently, and I 18 think I saw somewhere in the pleadings, that you 19 currently have a Section 2.206 Petition pending with 20 the Commission and the Staff, but you need to realize 21 that the Board can only act within the jurisdiction 22 and authority granted in the rules.
23 So I guess my question to you is given 24 that the Commission has said that in these 25 circumstances Staff has approved a withdrawal, or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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permitted a withdrawal, that the Board's duty is to 2
terminate a proceeding on grounds of mootness, what 3
would you suggest would make this proceeding not moot 4
such that the Board would not terminate it, because we 5
don't I
think we don't see that we have 6
jurisdiction to do anything other than terminate it.
7 What would you argue would be our authority to do 8
anything other than to terminate the proceedings?
9 MR.
SAPORITO:
Your Honor, our position is 10 the Board has, number one, inherent authority through 11 congressional mandate to exist.
A Board also inherent 12 authority because it serves to protect the public -
13 as a matter of public policy, it serves to protect 14 public safety and health issues.
15 JUDGE YOUNG:
- And, Mr.
- Saporito, what 16 would be the legal authority for your saying that we 17 have inherent authority?
18 MR.
SAPORITO:
Well, the legal authority 19 is based, in part, on the argument the Court already 20 made in reference to the other case in so far as the 21 other case was based on the NRC Staff having authority 22 23 JUDGE YOUNG:
Mr. Saporito?
24 MR.
SAPORITO:
Yes.
25 JUDGE YOUNG:
You say the other case.
I'm NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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not sure that I understand what you're talking about 2
there.
3 MR.
SAPORITO:
You mentioned it, I think 4
it was the Yankee Plant.
5 JUDGE YOUNG:
Vermont Yankee?
6 MR.
SAPORITO:
Yes.
Yes, Your Honor.
In 7
that particular instance -
8 JUDGE YOUNG:
Excuse me.
Mr.
- Saporito, 9
have you read that order?
10 MR.
SAPORITO:
I haven't.
I have only 11 referenced the --
I haven't read the order itself, 12 only to the extent that it was in these pleadings.
13 JUDGE YOUNG:
Okay.
When you refer I'm 14 just going to ask you to help us.
When you refer to 15 cases or to authority, I want you to point us to the 16 place we look in the law or in a
decision for 17 authority for what you're saying, because that's how 18 we operate.
If there is law there to support what you 19 say, then we follow that, but we can't take any action 20 just merely on your statement or any lawyer's 21 statement or anybody's statement that there's inherent 22 authority.
We need to base our authority on something 23 that's written down in either a rule or a law or a 24 decision that's been published.
25 MR.
SAPORITO:
All right.
- Well, I guess NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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my comments are based on the authority that the Court 2
pointed to in the Vermont Yankee Nuclear Power 3
Corporation, CLI-93-20, 38 NRC 83, parentheses, 1993, 4
closed parentheses; GPU Nuclear Corporation, 5
parentheses, Oyster Creek Nuclear Generating Station, 6
closed parentheses, CLI-99-29, 50 NRC 331, parentheses 7
1999, closed parentheses.
And then this parentheses, 8
"vacating Board decision on withdrawal of LAR because 9
10 CFR 2.717, the jurisdiction of the Board commences 10 when the proceeding commences, and the proceeding 11 commences when a Notice of Hearing is issued," closed 12 parentheses.
13 Based on that case, the Board in this 14 particular instance, in the instant action that we're 15 talking about with APS, that case was because the 16 Board the NRC Staff allowed the Licensee to 17 withdraw is my understanding.
So there was no issues 18 in dispute because there was no licensing amendment 19 request.
20 However, this case is distinguishable from 21 that case because in this particular
- instance, 22 although the NRC Staff granted the Licensee 23 authorization to withdraw their license amendment, the 24 NRC did so erroneously, in our opinion, because -- the 25 NRC being Mr. Donohew's staff organization -- told us NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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and agreed with us that the Licensee's technical 2
specifications were ambiguous.
3 JUDGE YOUNG:
Mr.
- Saporito, when the 4
Commission says that the NRC Staff has the authority 5
to approve withdrawals of application and also says 6
that the Licensing Board's authority to address 7
withdrawals only commences after a Notice of Hearing 8
or when a Notice of Hearing has been issued, I don't 9
see how you can assume that any petitioner in any of 10 the other cases might not have also thought that the 11 Staff was in error in what they did.
12 We don't really review the appropriateness 13 or inappropriateness --
alleged inappropriateness or 14 appropriateness of what the Staff action is.
If the 15 Staff has the authority to approve a withdrawal, I'm 16 not sure where we would get the authority to go behind 17 that and undo what the Staff has done.
It 18 specifically said that the Staff has that authority 19 and we don't.
20 MR.
SAPORITO:
Your Honor, it's our 21 position that the Staff has authority of acting sua 22 sponte as an agency to protect public safety and 23 health as a matter of public policy and it should act 24 to reverse the NRC Staff authorization to allow 25 withdrawal of a license amendment request.
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JUDGE YOUNG:
I assume you mean that the 2
Board has that authority.
3 MR.
SAPORITO:
Yes, Your Honor.
4 JUDGE YOUNG:
And where does that 5
authority come from?
6 MR.
SAPORITO:
It comes from the Board 7
itself.
The Board can act sua sponte, in our view, at 8
any time in these proceedings when information comes 9
to light that the there is public policy safety issue 10 at risk here.
11 JUDGE YOUNG:
Mr.
- Saporito, as I said 12 before, we only have the authority that's granted us 13 in the law, statute or a rule or a legal decision by 14 a court or the Commission.
So, again, I ask you where 15 would our authority come from?
16 MR.
SAPORITO:
I believe your authority is 17 inherently given to you by virtue of the Congress when 18 they mandated the NRC's organization to exist, Your 19 Honor.
20 JUDGE YOUNG:
Okay.
I'm not sure that we 21 Mr. Saporito, you do --
you are aware that we have 22 not yet granted a hearing, right?
23 MR.
SAPORITO:
It's my understanding that 24 this is a pre-hearing conference that I'm attending 25 right now.
That's my position.
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JUDGE YOUNG:
But you understand that we 2
have not granted a hearing in this case.
3 MR.
SAPORITO:
Yes, Your Honor.
4 JUDGE YOUNG:
Okay.
Before we grant a 5
hearing, we do not have the authority to approve or 6
disapprove withdrawals or to second guess the Staff 7
when they approve or disapprove withdrawals.
So I 8
want you to try to wrap up your argument that we do 9
have that authority, give us any citations of any law 10 that you want to argue would be the basis of any such 11 authority and then move on to your next point.
12 MR.
SAPORITO:
Well, in sum, our position 13 of NEPC is that the Board has inherent authority to 14 through congressional mandate to exist and that when 15 such significant public policy safety issues are 16 brought to light to the Board they should act in a sua 17 sponte fashion in the interest of public safety and 18 health.
19 JUDGE YOUNG:
Okay.
Do you have any other 20 arguments that you'd like to make?
21 MR.
SAPORITO:
- Well, I mean I could go 22 into the contentions, but I don't think it's relevant 23 at this point until the Board decides whether it's 24 going to have a hearing, unless the Board wants me to 25 go into those issues.
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JUDGE YOUNG:
No.
I agree, those would 2
not be relevant at this point.
All right.
Mr. Turk, 3
do you have any argument to the Motion to Terminate?
4 MR. TURK:
I would simply make two points, 5
Your Honor.
First, we fully agree with your analysis 6
of the law in that a Notice of Hearing has not been 7
issued yet, and the authority to grant a request to 8
withdraw the application does rest at this time with 9
the Staff, and the Staff has acted pursuant to its 10 understanding of the law and has granted the request 11 to withdraw the application.
The case law cited by 12 the Applicant in its motion, I believe they cite the 13 same three cases in both the Motion to Hold Proceeding 14 in Obeyance as well as the Motion to Dismiss, their 15 citation of that case law is correct.
16 There are many other cases which hold the 17 same thing and which indicate that the proceedings 18 should be dismissed as moot where the application has 19 been withdrawn and a Notice of Hearing has not yet 20 been issued.
And if required to respond to the Motion 21 to Dismiss, we'll cite that case law to you.
I would 22 note that this is long-standing judicial practice and 23 precedent on the point.
I'm looking at cases 24 published by the Commission or by Licensing Boards 25 dating back 15 or 20 years already, so there's quite NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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WASHINGTON, D.C. 20005-3701 1172 a bit of case law on that point.
The second point I would like to make is that what Mr. Saporito is asking you to do is not to function as a Licensing Board with respect to the license amendment application that was submitted, but rather to act as essentially a board with plenary powers to go into matters that exceed the license amendment request.
In effect, he would ask you to become the Commission for all purposes, and I believe you're correct that Mr. Saporito has filed a petition under 2.206 which goes to the Commission, and that is the proper avenue for him to raise these concerns once the license amendment proceeding is withdrawn.
And I think that's where he would obtain his relief, if any, rather than asking the Board to act upon matters that don't relate to any existing license amendment
- request, because there is no existing license amendment request.
JUDGE YOUNG:
All right.
Does that conclude your argument?
MR.
TURK:
Yes, Your Honor.
JUDGE YOUNG:
Give us one second, please.
(Judges confer.)
JUDGE YOUNG:
Mr. Matthews, did you have anything further to say?
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1173 1
MR.
MATTHEWS:
No, Your Honor.
2 JUDGE YOUNG:
All right.
We have 3
conferred, and we have read the case law, and, Mr.
4 Saporito, we understand your argument that you would 5
like us to, on our own, sort of take the authority to 6
overrule the Staff on approving the withdrawal, but we 7
do not find that we have the legal authority to do 8
that.
And so as soon as we get the transcript back to 9
make sure that we have correctly understood and stated 10 all your arguments, we would grant the Motion to 11 Terminate.
12 Mr. Saporito, your Section 2.206 petition 13 to the Commission, in effect, from what I understand, 14 addresses the same concerns that you have about the 15 issues that surround the pertinent inspection of the 16 steam generator tubes, and I don't know whether the 17 Staff, when you address those issues generically, will 18 be providing for a period of public comment, but 19 certainly if the Staff gets to the point of a new 20 rulemaking, there would be an opportunity for public 21 comment.
And Mr. Turk might be able to enlighten you 22 as to whether there would be any other opportunity in 23 that generic process.
Hello?
24 MR.
SAPORITO:
Yes, yes.
I understand, 25 Your Honor.
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1174 1
JUDGE YOUNG:
Mr. Turk?
2 MR.
TURK:
Yes.
3 JUDGE YOUNG:
Is there anything that you 4
can explain with regard to the generic process so that 5
if Mr. Saporito wanted to provide a comment -
6 MR.
TURK:
Yes, Your Honor.
There really 7
are two different things happening right now.
Mr.
8 Saporito has submitted his petition under 10 CFR 9
2.206, which the Staff is evaluating, and the Staff 10 will be in communication with him about his petition.
11 So the very issues that he raises will be discussed 12 with him by the appropriate people in the Staff.
So 13 he will have input that way.
14 The generic communication that is being 15 developed right now I
do not believe provides for 16 prior comments by the public.
I think it's something 17 that would be issued and if people have comments about 18 it, they can always submit comments.
But I think his 19 best avenue at this point would be to discuss his 20 2.206 petition with the Staff.
- And, in
- addition, 21 whenever the generic communication is issued, he'll be 22 able to see that and he can provide comment on that if 23 he'd like.
24 JUDGE YOUNG:
Okay.
Mr. Saporito, I think 25 Mr.
Turk has explained that fairly
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1175 1
encourage you, and I think the other members of the 2
Board would join me in encouraging you to work with 3
the Staff with regard to your 2.206 petition on these 4
issues.
And an order will be issued in the near 5
future by granting the Motion to Terminate the 6
Proceedings.
Are there any other outstanding issues 7
that any party would like us to address?
8 MR.
MATTHEWS:
Your
- Honor, just for 9
clarification, I assume at this point then you do not 10 require a written response from the Staff on the 11 Motion to Dismiss?
12 JUDGE YOUNG:
Motion to Terminate?
13 MR.
MATTHEWS:
Right.
14 JUDGE YOUNG:
No.
15 MR.
MATTHEWS:
Okay.
Thank you.
16 JUDGE YOUNG:
Any other party have 17 anything that you'd like to say?
18 MR. MATTHEWS:
Nothing from the Applicant, 19 Your Honor.
20 JUDGE YOUNG:
- And, Mr.
- Saporito, you 21 understood our references to your 2.206 petition and 22 encouragement that you work with the Staff on that.
23 MR.
SAPORITO:
- Yes, Your
- Honor, I
24 understand.
25 JUDGE YOUNG:
Great.
Okay.
Well, thank NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1176 you all.
That would conclude this call.
(Whereupon, at 11:44 a.m.,
the Telephone Conference Call was concluded.)
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CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission in the matter of:
Name of Proceeding: Arizona Public Service Company Palo Verde Nuclear Generating Station, Unit 1 Docket Number:
50-528-OLA Location:
(Telephone Conference) were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken by me and, thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript is a true and accurate record of the foregoing proceedings.
Mla Tharpe Official Reporter Neal R. Gross & Co.,
Inc.
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