ML043060233
| ML043060233 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee  |
| Issue date: | 10/21/2004 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| Byrdsong A T | |
| References | |
| 50-271-OLA, ASLBP 04-832-02-OLA, NRC-53, RAS 8734 | |
| Download: ML043060233 (309) | |
Text
{{#Wiki_filter:WAS g 13f Official Transcript of Proceedings
- NUCLEAR REGULATORY COMMISSION 4
Title:
Entergy Nuclear Vermont Yankee NPS Docket Number: 50-271-OLA; ASLBP No.: 04-832-02-OLA DOCKETED USNRC October 28, 2004 (3:45PM) Location: Brattleboro, VT OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF Date: October 21, 2004 Work Order No.: NRC-53 Pages 61-367 NEAL R. GROSS AND CO., INC. Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W. Washington, D.C. 20005 (202) 234-4433 -Fe/viplale=S6o V :5eL::y- o9-
61 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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ATOMIC SAFETY AND LICENSING BOARD (ASLB) PRE-HEARING PRE-HEARING CONFERENCE TELECONFERENCE _ _ _ _ _ _ _ _ _ _- x IN THE MATTER OF: ENTERGY NUCLEAR VERMONT YANKEE, LLC and ENTERGY : Docket No. 50-271-OLA NUCLEAR OPERATIONS, INC. : ASLBP No. 04-832-02-OLA (Vermont Yankee Nuclear Power Station Operating License Amendment) _ _ __ _ _ __ _ _ -x Thursday, October 21, 2004 The above-entitled matter came on for hearing, pursuant to notice, at 9:00 a.m. BEFORE: ALEX S. KARLIN Administrative Judge, Chair ANTHONY BARATTA Administrative Judge LESTER RUBENSTEIN Administrative Judge NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. f (202) 2344433 WASHINGTON. D.C. 20005-3701 wwwneakgross rcm
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62 L i It APPEARANCES:
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i - On Behalf of Applicants EnterQy Nuclear Vermont ' k". --. i Yankee. LLC and Entercy Nuclear Operations. Inc.: i I JAY E. SILBERG, ESQ. DOUGLAS TRAVIESO-DIAZ, ESQ. DOUGLAS ROSINSKI, ESQ. of: Shaw Pittman 2300 N Street, NW Washington, DC 20037 (202) 663-8000 (202) 663-8063 (202) 663-8007 On Behalf of the Vermont Department of Public Service: ANTHONY Z. ROISMAN, ESQ. National Legal Scholars Law Firm 84 East Thetford Rd. Lyme, NH 03768 (603) 795-2045 (603) 795-4245 NEAL R. GROSS C COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. j1 (202) 234-4433 WASHINGTON. D.C. 20005-3701 womeargos.con ("..
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63 On Behalf of the New Enqland Coalition: JONATHAN M. BLOCK, ESQ. I. ; 94 Main Street Putney, Vermont 05346 (802) 387-2646 and RAYMOND SHADIS, pro se P.O. Box 98 Edgecomb, ME 04556 (802) 257-0336 On Behalf of the Nuclear Regulatory Commission: BROOKE D. POOLE, ESQ. MARISA HIGGINS, ESQ. Office of the General Counsel Mail Stop 15 D21 Washington, DC 20555-0001 Also Present: CHRIS WACHTER, Law Clerk, NRC NEAL R. GROSS 1 22. co4JRT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 23443 WASHINGTON. D.C. 20005-3701 wwwjnealrgross.com
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64 I N D E X Welcome and Introduction of Parties . . . . . . . 4 Preliminary Legal Issues . . . . . . . . . . . . 21 Opening Statement of Anthony Roisman on behalf of the State of Vermont Public Service . .. ... . . . . . . . . . . . . . 93 Opening Statement of Jonathan Block on behalf of the New England Coalition . . . 106 Opening Statement of Jay Silberg on behalf of Entergy . . . . . . . . . . . . 108 Opening Statement of Brooke Poole on behalf of the Nuclear Regulatory Commission . . 123 Rebuttal of Anthony Roisman on behalf of the State of Vermont Public Service . 133 Rebuttal of Jonathan Block on behalf of the New England Coalition . . . . . . . . 139 Contention 2 . . . . . . . . . . . . . . . . . 140 ( SOpening Statement of Anthony Roisman on behalf of the State of Vermont Public
< Service . . . . . . . . . . . . . . . . . 141 Opening Statement of Jay Silberg on behalf of Entergy . . . . . . . . . . . . 158 Opening Statement of Brooke Poole on behalf of the Nuclear Regulatory Commission . . 170 Contention 4 . . . . . . . . . . . . . . . . . 178 Opening Statement of Anthony Roisman on behalf of the State of Vermont Public Service . . . . . . . . . . . . . . . . . 179 Entergy - Mr. Rosinsky . . . . . . . . . 190 NRC Staff - Ms. Poole . . . . . . . . . . 208 State Rebuttal - Mr. Roisman . . . . . . 209 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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65 Contention 1 State - Mr. Roisman . . . . . . . . . . . 221 Entergy - Mr. Silberg . . . . . . . . . . 237
- NRC Staff - Ms. Poole . . . . . . . . . . 251 Contention 6 New England Coalition - Mr. Shadis . . . 258 Entergy - Mr. Rosinski . . . . . . . . . 268 NRC Staff - Ms. Poole . . . . . . . . . . 274 Contention 3 Opening Statement of Anthony Roisman on behalf of the State of Vermont Public Service . . . . . . . . . . . . . . . . . 282 Opening Statement of Jay Silberg on behalf of Entergy . . . . . . . . . . . . 300 Opening Statement of Brooke Poole on behalf of the Nuclear Regulatory Commission . . 316 Contention 4 Opening Statement of Jonathan Block on behalf of the New England Coalition . . . 320 Opening Statement of Matias Traviesco-Diaz on behalf of Entergy . . . . . . . . 324 Opening Statement of Brooke Poole on behalf of the Nuclear Regulatory Commission . . 335 Rebuttal of Jonathan Block on behalf of the New England Coalition . . . 336 Contention 5 Opening Statement of Anthony Roisman on behalf of the State of Vermont Public Service . . . . . . . . . . . . . . . . . 341 Opening Statement of Jay Silberg on behalf of Entergy . . . . . . . . . . . . 352 Opening Statement of Brooke Poole on behalf of the Nuclear Regulatory Commission . . 359 Rebuttal of Anthony Roisman on behalf of the State of Vermont Public Service . . . . . . . . . . . . . . . . . 362
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66 1 P R O C E E D IN G S 2 9:02 A.M. 3 JUDGE KARLIN: Good morning, my name is 4 Alex Karlin. I'm a Judge, Administrative Judge with 5 the Atomic Safety and:.Licensing Board and chair of 6 this Board Panel for the proceeding here this morning. 7 Welcome to all of you, to the 8 representatives of the four parties and to the public. 9 I appreciate your coming. 10 We *are here to conduct a pre-hearing I-; 11 conference in the matter of Entergy Nuclear Vermont 12 Yankee, LLC and Entergy Nuclear Operations, Inc., 13 Docket No. 50-271 of the-Atomic Safety and Licensing 14 Board Panel No. 483102-OLA. j : . 7. 15 This pre-hearing conference is being held
~1 K>~ . 6 16 pursuant to the order of this Board, dated October 1st 17 and also another issued on October 18th. The location 18 here is the Brattleboro Middle School in Brattleboro, 19 Vermont. And before proceeding, we would like to 20 thank the school and the School Board for making this 21 facility available.
22 As most of you will know, we changed the 23 location of this proceeding to provide more ample room 24 for public viewing of the proceeding. So we very much I 25 appreciate the school making this facility available. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE. N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 wwwneakgros.so K>C. Z. . -, .. - * . . .. , .
67 1 It's sort of a late notice. C~-.. 2 First, I'd like to introduce the other 3 Judges on this Board. To my right is Dr. Anthony 4 Baratta. He has a Ph.D. in Nuclear Engineering and 5 Physics and is the Associate Chief Technical Judge of 6 the Atomic Safety and Licensing Board Panel. 7 On my left is Lester Rubenstein. He is a 8 Technical Judge with over 20 years of experience in 9 the nuclear field. 10 As I mentioned, my name is Alex Karlin. 11 I'm a lawyer and a Judge and I'll serve as the chair 12 here today. 13 I wanted to make some introductory remarks 14 so that for purposes of the public they can understand 15 the nature of this proceeding, but before I do so, I 16 would ask the parties, I'd appreciate if the counsel 17 for the parties or the representatives could introduce 18 themselves. 19 Let's start with the State, the New 20 England Coalition, the Applicant and then Staff, 21 please. 22 MR. ROISMAN: Good morning, Mr. Chairman. 23 My name is Anthony Z. Roisman and I am the counsel for 24 the Department of Public Service of the State of 25 Vermont. With me this morning on my right is Sarah NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 wwwjieaIrgross.om
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68 1 Hofman. She's special counsel to the Department of f 2 Public Service. On my left is William Sherman. He's 3 the State Nuclear Engineer and on his left is Lawrence
*1I 4 Becker. He's the State Geologist. We hope shortly 5 that we will also be joined by Commissioner David 6 O'Brien who is the Commissioner of the Department of 7 Public Service of Vermont.
8 JUDGE KARLIN: Thank you, Mr. Roisman. 9 MR. BLOCK: Good morning. My name is 10 Jonathan Mark Block. And I've-entered an appearance 11 that may have come when the Board was traveling 12 yesterday. I've left copies of the cover letter to 13 the Secretary, the Notice of Appearance that was filed 14 yesterday and a Motion to Dismiss that was filed as 15 well. 16 I am now representing the New England 17 Coalition. With me to my right is-Mr. Raymond Shadis, 18 who you're all familiar with, who has been up to this 19 point the pro se representative. I hope that we'll be 20 able to address developing some kind of temporary 21 working co-counselship just for this proceeding as 22 I've only just come on board to assist him and there 23 are too many things in this proceeding as issues that 24 he is far more aware of than I. So hopefully, after 25 we finish the introductions we can take that matter NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHOOE ISULN AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 wiwwmeaIrgross ~m
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69 1 up.
, ':'~.- 2 We also have with us one of our experts, 3 Mr. Paul Blanch who is behind us. And is Mr.
4 Gundersen here yet? We are expecting also our other 5 expert, Mr. Arnie Gundersen to come a bit later. 6 Thank you. 7 JUDGE KARLIN: Thank you. 8 MR. SILBERG: Good morning, Your Honors. 9 I'm Jay Silberg. I'm a partner in the law firm of 10 Shaw Pittman. We are here today representing the 11 Applicants, Entergy Nuclear Vermont Yankee and Entergy 12 Nuclear Operations, Inc. 13 With me here at counsel table are Matias 14 Traviesco-Diaz, also a partner in the firm; and 15 Douglas Rosinski, an associate at the firm. Sitting 16 behind me are Travis McCullough, an in-house attorney 17 with Entergy. And representing the Applicants in the 18 audience are Mr. Kevin Bronson, who is the General 19 Manager for Plant Operations; John Dreyfuss, who is 20 the Director of Engineering for Vermont Yankee; Chris 21 Wamser, who is the Operations Manager for Vermont 22 Yankee and Craig Nichols who is the Project Manager 23 for the Power Uprate Project. 24 JUDGE KARLIN: Thank you. Before we 25 begin, I have a couple of administrative items. With
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70 1 regard to cell phones -- MS. POOLE: I'm Brooke Poole with the NRC, (- 2 3 Office of the General Counsel. Seated with me at the 4 table is Marisa Higgins, also of the Office of General 5 Counsel; and Richard Ennis, a Senior Project Manager 6 with the NRC, Office of Nuclear Reactor Regulation. 7 He's the Project Manager for Vermont Yankee. 8 With us in the audience are Allen Howe, 9 the Section Chief for Vermont Yankee; and Richard 10 Lobel, a Senior Reactor Systems Engineering, also 11 within the Office of Nuclear Reactor Regulation. 12 Thank you. 13 JUDGE KARLIN: Okay, thank you. Sorry. 14 I had you in the wrong order here. 15 Before we begin, please, with regard to 16 cell phones, if everyone would turn their cell phones 17 off or put them on vibrate so that it doesn't disturb 18 the proceeding. And if you have a cell phone 19 conversation, please take it out of the room. That 20 will help us proceed. 21 Also with regard to media, we welcome the 22 media here and their coverage is a better way to 23 inform the public. I think there are rules with 24 regard to the coverage and we welcome the television 25 camera stationed in the back. Artificial light is not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 ~wwwnealrgross.com 1
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71 1 allowed, so flash cameras and that sort of thing would 2 not be permitted. And we'd ask that they not enter 3 the well in front of the proceedings. 4 A transcript is being made of this 5 proceeding by Mr. Holland. He will make an electronic 6 transcript and then he will do a written transcript 7 which will be available on the NRC web page, for free, 8 in about 10 days to 2 weeks, depending on the 9 turnaround. People who want to purchase a transcript 10 faster than that can contract Neal Gross and they can 11 get a transcript that way, but it will be transcribed. 12 For the benefit of the public, I thought 13 it would be useful to explain the role of the Atomic 14 Safety and Licensing Board, the nature of this II I 15 proceeding and a little bit of the history of this \K> "1 K-i 16 proceeding. The Atomic Safety and Licensing Board of 17 which we are a three-Judge Board, is established by 18 federal law. The federal law first sets up the 19 Nuclear Regulatory Commission to regulate nuclear 20 facilities. Right now, it's headed by three 21 Commissioners and those Commissioners are appointed by 22 the President and confirmed by the Senate. 23 On the one hand, the Commissioners have a 24 large regulatory staff working for them and reporting 25 to them. This is what we will call here today the NRC NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 wwwmnealrgoss com
72 1 Staff and they are seated here in front of you and are 2 one of the parties, although that's a subject of 3 discussion here, to this proceeding. The people on 4 the NRC Staff, as I understand it, are currently 5 reviewing Entergy's application for a license 6 amendment and so they have a specific role in the NRC. 7 This Board's role is entirely different 8 and separate. The Board Judges are independent of the 9 Staff and entirely separate from them. We're also 10 independent, to a certain extent, of the Commission 11 themselves. We have no allegiance to the Staff. We 12 have no allegiance to Entergy or to the State of 13 Vermont or anyone else at this point. Under the 14 former rules of judicial proceedings, all substantive 15 discussion, there shall be no substantive discussion 16 between ourselves, the NRC Staff or any other party 17 with regard to this matter. And it's prohibited for 18 us to talk to them or them to talk with us and if any 19 such discussion might inadvertently occur, it needs to 20 be put on the record and it will be. So there's no 21 discussion that we have with the Staff. That's 22 prohibited. 23 Likewise, with regard to the Commissioners 24 themselves, we have no substantive discussion with the 25 Commissioners regarding the merits of this matter. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234.4433 WASHINGTON. D.C. 20005.3701 wwwnealrgross.com
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73 1 They can't talk with us about it. We can't talk with 2 them about it. We hear the facts. We try to apply I.C '1 1 3 the law and we try to rule on the issues that are 4 presented to us and render a decision. At that point, 5 -if somebody doesn't like that decision, they can 6 appeal it to the Commissioners and the Commissioners 7 will issue a ruling, but we have no discussion or 8 comment with them and they can either affirm our 9 ruling or they can reverse, but we don't have 10 communication with them about this matter either. 11 These rules are out there to try to make 12 sure we are independent and can function that way. 13 The Commissioners do not do performance reviews on the 14 Judges. They don't fire the Judges if they issue a 15 wrong decision and they can't affect our salary one 16 way or the other. So these are also there to try to 17 assure some independence of this Board. 18 So I just wanted the public to understand 19 when we talk about or you talk about the NRC, there 20 are really three entities to think-about; one, the NRC 21 Staff, who are reviewing the application; two, the 22 Commissioners, the three Commissioners, who are 23 ultimately in charge of the NRC; and the third is the 24 Atomic Safety and Licensing Board Panel. And this 25 Board is a three-Judge set of that. C NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHUNGTON. D.C. 20005-3701 wwwnealrgrosscom 1 ,"
74 1 As to the history of this case, many of 2 you in this room this history much better than I do, \I I 3 but I think it's worth reviewing. In September 2003, 4 Entergy submitted an application to amend is license 5 to allow for an increase in its power and extended 6 power uprate of approximately 20 percent. The NRC 7 Staff is reviewing that application. 8 On July 1, 2004, the NRC published in the 9 Federal Register a notice saying that they're 10 considering this application and anyone who is I. 11 interested in requesting a hearing or challenging any 12 part of that application had the opportunity within 60 13 days to file a request for hearing and to file 14 proposed contentions, issues they wanted to challenge 15 in this matter. In response to that notice, the State 16 of Vermont, Department of Public Services and the New 17 England Coalition submitted requests for hearing. The 18 State proposed five contentions at that time that they 19 wanted to be heard. The New England Coalition 20 submitted seven. So we have a total of 12 proposed 21 contentions from the- two parties at that point. 22 Another has been filed by the State more recently and 23 we'll deal with that perhaps a little bit later. 24 After the requests for a hearing were 25 filed, Entergy filed an answer saying that none of NEAL R. GROSS t-. COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 wvwwnajrgoss.com
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-1 those contentions, proposed contentions were 2 admissible, that they didn't raise legitimate issues I1- 3 that warranted any kind of evidentiary hearing. And 11 4 so -- and the Staff also filed an answer to those 12 5 contentions, two separate answers, actually. And they 6 said that a number of the proposed contentions were
.7 not admissible and the Staff also indicated that a 8 couple of the contentions in the Staff's mind, they 9 did not object to.
10 So<ywe are here really today to deal.with 11 and decide whether the proposed contentions submitted 12 by the two Intervenors are admissible under the NRC's 13 rules. 14 And so you'll hear a lot about 15 admissability of contentions today. That's really the 16 focus of this argument and this discussion. And what 17 we're trying to do is listen to each of the four 18 parties and to learn from them and ask questions of 19 them about the admissability of their contentions so 20 that we can decide whether an evidentiary hearing will 21 be granted later where witnesses might testify and we 22 would have a further hearing later if contentions are 23 admitted. 24 Now a couple of the criteria or standards 25 for admitt ing contentions, it's in the Federal Rules.
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76 1 It's basically 10 CFR 2.309(f) and there's a list of criteria for an admissible contention. For example, ( 2 3 the regulation says that a contention must provide a 4 specific statement of the law or facts to be raised or 5 controverted. It also must include. a brief 6 explanation of the basis of the contention and the 7 Petitioner is required to file a concise statement of 8 the alleged factors or expert opinion which support 9 his or her position. So the discussion today, the 10 argument today, will focus on whether or not the 11 proposed contentions met those criteria and other 12 criteria. For example, it has to be within the scope 13 of this proceeding. 14 And the parties have filed extensive 15 pleadings. We haven't brought perhaps all of them, 16 but we have many of them and they've briefed these 17 issues quite well and provided a great number of 18 attachments and exhibits. So we have read those 19 briefs. 20 - After today and after hearing the 21 arguments, we will issue a written decision where 22 we'll decide and rule whether or not all or some or 23 none of the proposed contentions are admissible. If 24 they are, then a hearing will then be scheduled at 25 some later time. If we rule that they are not, then
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77 a hearing would not be scheduled. In either event, 2 whatever we write and rule will be a public document tI 3 and it will be subject to appeal to the Commissioners 4 themselves. So it won't necessarily be a final 5 decision if some seeks to appeal it. 10 6 There will also be perhaps some other 7 threshold, what they call, legal issues that we want 8 to talk about or hear about today such as the scope of 9 this proceeding, the type of hearing that might be 10 granted, whether it would be an evidentiary hearing 11 with cross examination or not. So we'll get to that 12 too. 13 And thus, because this is really dealing 14 with the pleadings and the contentions, the only is people we're going to be able to listen to today and 16 need to listen to because this is what we're here for 17 is the four parties you see sitting here in front of 18 you who have filed these pleadings and we need to 19 learn and understand more about them. 20 In terms of public participation in this 21 proceeding, there are really three ways it can happen. 22 One is what's called a limited appearance statement 23 can be filed. It can be done in writing or an 24 evidentiary hearing is scheduled later. We probably 2S will and I-think if it's up to me, we will allow oral , NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 vwwneakgross com
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78 1 limited appearance statements. Limited appearance 2 statements can be mailed to the NRC at the address 3 specified in the notice. They can also be e-mailed to 4 the NRC and they also come to me. And the e-mail 5 address is hearingdocketsnrc.gov, "hearingdocket" 6 being one word with a copy to me, ask2@nrc.gov. We've 7 already received several limited appearance statements 8 in writing, one from Mr. Blanch, one from Ms. Shaw, 9 and I'm not sure whether we have any others and we'll 10 read them. So we have-received those. If anyone else 11 wants to file them, they may. 12 The third way for the public to 13 participate is if a hearing is scheduled later for 14 evidentiary matters, then limited appearance 15 statements will probably be taken at that time and 16 people will have a chance to talk for a limited amount 17 of time and present their key points. 18 At this point, I'd like to ask my fellow 19 Judges if there's anything else that you need to 20 cover? 21 JUDGE RUBENSTEIN: I would only add to 22 what Judge Karlin said that for the general 23 understanding we'll try not to get into the merits of 24 the contentions today, but to examine the basis for 25 the admissability. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234.4433 WASHINGTON. D.C. 20005-3701 wwmeakgross.corn ~~. . . . . *. . .. .- *-
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- 4 1 On the scope of the hearing, the licensing iI . 2 action is for an extended power upgrade, so most of 3 what should be going on in the arguments on the 4 admissability should be focused on that point, as 5 opposed to perhaps an attack or a concern with the 6 Staff's Safety Evaluation Report, if that's issued, or
.7 the regulations or some issue which may be of old 8 vintage which has nothing to do with the licensing 9 upgrade issue, unless there can be established a clear 10 nexus to this-requirement.
11 Hopefully, everybody would have read the 12 requirements of 24309F and we'll move along 13 expeditiously. 14 Thank you. 15 JUDGE KARLIN: Thank you. In terms of an 16 outline of how we're going to proceed, we have 17 scheduled essentially two days for this pre-hearing 18 conference and oral argument in the order that we sent 19 out and the parties are aware, but for the public our 20 approach will be first to cover in about an hour and 21 twenty minutes preliminary legal issues that might be i 22 raised or presented by the pleadings. 23 Then we will go through the contentions, 24 allocating 45 minutes' worth of time amongst all the r 25 parties to talk about and to answer our questions f 5 NEAL R. GROSS kl.- COURT REPORTERS AND TRANSCRIBERS I 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 wwwneaIr7r=s.com \1-1/ - - :: '.' . .
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80 X i 1 about the contentions and they're not necessarily in 2 the one, two, three order. They're organized in some, p.:. :. 3 what we think is hopefully a logical way according to
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4 their subject matter because some of the contentions 5 by the State and by New England Coalition relate to 6 one another. And contention I by the State might 7 relate to contention 3 by the Coalition and so we've 8 tried to group them that way. So first, preliminary 9 legal issues. Second, contention by contention, we'll 10 go through that. And then third, at the end, we'll 11 have a session as to the type of hearing that might be 12 held, if one is held, whether it's an evidentiary 13 hearing, State's claim for rights under Section 274.L,
,...1 14 which I think logically falls into that same category, 15 the type of hearing that's appropriate.
16 We'd like to finish this by mid-afternoon 17 tomorrow, but we'll stay here and I think we'll get it 18 done. 19 We also note that a new contention, before 20 we proceed, a proposed sixth contention was filed by 21 the State of Vermont. Actually, they filed what's 22 known as a Motion for Leave to File a New Contention 23 under 2.309(f). The other parties have not had the 24 chance to file written responses to that. The time
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81 1 on the 18th,"just a couple of days ago. 2 Accordingly, we're not going to hear oral 3 argument about that Motion for Leave to File the New 4 Contention today, but we have talked about it here and 5 we thought the fair way to proceed with this thing and 6 expedite and handle it would be any other party to 7 this proceeding who wants to file a response to the 8 Motion for Leave will have 25 days to do so. 9 Likewise, at the same time you should file 10 any substantive response, answer you have to the -?t 11 proposed contention itself, so you can debate the 12 Motion for Leave and you can controvert the proposed 13 contention at the same time within 25 days. Seven 14 days after that, the State will have the opportunity 15 to reply to the answers, if you would, not to the 16 Motion because there's no reply granted to the Motion 17 for Leave to Intervene, but there is certainly a reply 18 granted for the substantive merits of the contention 19 or the admissability of the contention, so 25 days 20 from --'not from today, I'm sorry, 'if I misspoke, but 21 from the date of the motion itself and then 7 days 22 after that. I'd like to proceed that way. We can do 23 it both at the same time. 24 Before we proceed, let's see, may I ask, 25 do the parties have any stipulations? During a pre-NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON, D.C. 20005-3701 vnwwealrgross con
82 1 hearing conference call we talked about the possibility that there might be some stipulations that 3 would reduce the areas of disagreement or help this 4 proceeding? No? 5 MR. BLOCK: No, Your Honor. 6 JUDGE KARLIN: Okay. 7 JUDGE RUBENSTEIN: Specifically, contention 5 is in place, so to speak. 9 MR. ROISMAN: We considered that we put 10 the offer out there. We got no calls. I, JUDGE KARLIN: Okay. It was worth trying. 12 MR. SILBERG: We have been preparing for 13 the pre-hearing conference, and frankly, have not have 14 the opportunity to negotiate or sit down with the 15 Department on that. It may be something we could do. 16 I think it's a simple issue, either to decide on the 17 merits for admissability or a stipulation, but perhaps 18 during some of the breaks we can have some 19 conversations with the Department. 20 JUDGE KARLIN: That would be helpful. 21 Yes, if you have something that would help us on that, 22 that would be great. 23 Also, the Staff, if you would, perhaps you 24 could help give us a little information. We 25 understand that you docketed in this proceeding an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. . - *. (202) 2344433 WASHINGTON. D.C. 20005-3701 wwwneakgross.com
83 I.
- 1. October 15th letter from the NRC to Mr. Kansler. I 2 guess he's President of Entergy, regarding the current
(. ` 3 status and schedule for the safety evaluation. That Is 4 would be helpful if you could put that in the record 5 here for us this morning. 6 MS. POOLE: Yes, we just wanted to make, 7 to provide information to the Administrative Judges 8 and the other participants in this proceeding. On the 9 NRC website, we maintain a list, pending applications 10 for power uprates in which we have projected 11 completion dates. And on October 15th we informed the 12 Applicant in this proceeding that the completion date 13 for this proposed, for the proposed amendment would 14 not be -- was going to slip from the scheduled 15 completion date of January 31, 2005. No date has been 16 set as yet. We just think it's going to slip at least 17 a couple of months and therefore we provided a letter 18 to the Administrative Judges and the other 19 participants on October 19th in which we forwarded 20 this communication with the Applicant. 21 JUDGE KARLIN: Okay, and do you have a 22 schedule then for when? 23 MS. POOLE: We don't. As indicated in the 24 latter to the Applicant, additional supplemental 25 information is being submitted by the Applicant to the NEAL R. GROSS
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84 1- Staff. The Staff has at the present time informed the 2 Advisory Committee on Reactor Safeguards that meetings 3 in connection with this application will be delayed. 4 They have not been rescheduled. And we have not 5 established a new scheduled completion date for the 6 review at this time. But we will endeavor to niotify 7 the Licensing Board and the other participants in this 8 proceeding when that has been done. 9 JUDGE KARLIN: Okay, thank you. A couple 10 of other housekeeping matters before we start. Mr. 11 Chris Wachter, our law clerk, sitting to our left here 12 will help us in this proceeding and one way he'll help 13 us is to be a time keeper. He's going to give us the 14 two-minute warning, all of us, both the Judges and the 15 parties when we're talking or asking questions. A 16 certain amount of time has been allocated for each 17 session and matter and he'll tell us when we've got 18 two minutes left and hopefully, it won't go as long as 19 the NFL two-minute warnings usually go which are 15 or 20 20 more minutes. 21 And in terms of the allocations of time, 22 we're going to not -- at this point we're not going to 23 allow someone to say well instead of taking 20 minutes 24 bn this contention, I'll take 5 minutes and save 15 i.' 25 for some other contention. We've allocated in a way t(; NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS II (202) 234-4433 1323 RHODE ISLAND AVE, N.W. WASHINGTON, D.C. 20005-3701 wwwmcatrgross.con
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-1 we think would be best for our questions and the
(* . 2 discussion, so if you use less than that amount of ( 3 time, great. Maybe we can proceed a little more 4 quickly. 5 And if at the end of :the day, tomorrow or 6 even today, we find that we ought to go back over some 7 issue or hopefully, we'll be able to do that and spend 8 a little bit more time on something where we thought 9 that maybe we could allocate it that way. So we're 10 going:.to try to keep relatively crisply to those time 11 frames. 12 With that, I would just ask the parties or 13 direct the parties if there are any issues or other 14 questions that need to be raised at this time. 15 MR. BLOCK: Yes. As I mentioned when I 16 introduced myself to the Board, I did file a Motion to 17 Dismiss along with my appearance. I'm sorry to enter 18 that way, but we felt and we consider that there's 19 another issue that's not addressed directly in that 20 motion that should be addressed by the Board as well. 21 And it parallels the issue raised in there. 22 We feel that this application has become 23 a moving target in the sense that the number of 24 supplements that have been filed and particularly 25 filed after the date of the Notice of Hearing NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234433 WASHINGTON. D.C. 20005-3701 wLwwnealrgross.com S':,- '.. - , ,,,s
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86 1 opportunity, the number and volume of material, amount ii 2 of material that's there, raises a serious question 3 about how the public could proceed, particularly when 4 a number of the documents that have been filed since 5 that time that have been available, we now know to 6 other parties such as the Department, were not 7 available to us. They were not placed in Adams. And 8 so it means that we have, so to speak, an initial 9 discovery issue before we even have decided whether we 10 have a hearing opportunity. And we felt that the 11 notice indicated that it was going to be a proceeding 12 on a specific license application and instead, that 13 application has enlarged and enlarged and enlarged and 14 now, in fact, we're confronted with the situation 15 where the letter that the NRC Staff cited to you 16 actually indicates that it will be at least several 17 months before they are able to provide any kind of 18 finality to that review. 19 And so we raise that issue in our motion 20 and I also raise the issue of the availability of 21 material because I think that in order to be fair to 22 the public and the flip side of fairness is to not 23 prejudice an interest, so to be fair to the public, to 24 be fair to an Intervenor who is otherwise qualified 25 under Section 189(a) of the Atomic Energy Act, 42 USC NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE, N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 wwwxneargross.mom
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87 1 2239, to be fair to the Board itself because the three (I .;2 of you are going to be confronted throughout this 3 process by the information that you have to have in 4 front of you. And if the information isn't in Adams, 5 since you're independent, as you pointed out at the 6 beginning, it must mean that it's not available to 7 you, since it wasn't available to us for that reason. 8 So it raises an interesting issue, at 9 least that we think should be resolved on the 10 discovery side and we felt that it was substantial 11 enough to involve moving the proceeding be dismissed 12 and re-noticed and that's the information I placed 13 before you. 14 There was also a second issue and that is 15 how to deal with Mr. Shadis. I know that in the 16 rules, you can only have one counsel, but in this 17 situation, as I said, I've only just come on in the 18 last 48 hours and so it would be extremely helpful, I 19 think, to the Board and to the other parties, if he
; 20 was allowed to play more of a substantial role than is 21 usually the case when one is provided, one chooses to 22 have counsel rather than pure pro se. And I guess 23 that would go to whether there are objections to the 24 other parties and to the Board's objection to his 25 being able to, so to speak, in this proceeding co-NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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88 1 counsel with me. 1~ - { 2 And those are the two issues that we had 3 up front. 4 JUDGE KARLIN: Okay, I just want to get a 5 clarification. Are you in the Motion to Dismiss which 6 have not read, I haven't read, certainly the other 7 parties have, will have an opportunity to respond to 8 that. There's a time for that and we'll be looking 9 for those responses, but you're not suggesting that 10 this proceeding this morning should not proceed? 11 MR. BLOCK: Yes, that's what I'm 12 suggesting. We have, in a sense, defective notice, 13 that the minimum requirements of due process are not 14 being met by a failure to provide that information to 15 the public that would be necessary to conduct the 16 hearing to which they're otherwise entitled under 17 189(a). 18 JUDGE KARLIN: Do we have any responses 19 from Entergy at this point? 20 MR. SILBERG: We'd be happy to address. 21 We will, of course, respond to due course to the 22 motion. We read it very briefly and believe that it 23 has no merit. 24 Certainly, in every NRC licensing 25 proceeding that I've been involved in for the past 35 £ NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 wwwmneaiygross.com
89 1 years, applications after they've been filed and 2 indeed noticed, are almost invariably amended. That's 3 the nature of the process. There's nothing 4 inappropriate. There's nothing in violation of any 5 - NRC regulations. 6 To the extent that new information is 7 presented, the Commission's regulations include a 8 specific process for dealing with new information. 9 People can file contentions. Intervenors can seek to 10 intervene on a late basis, based on late-filed 11 intervention. The proceeding -- the process is there. 12 It's been utilized in very consistent fashion for 13 decades. So I simply don't see a problem, but we will 14 respond in due course. 15 Certainly, it would be inappropriate at 16 this point to change in any way this pre-hearing 17 conference based on a motion that was filed last 18 night. 19 JUDGE KARLIN: Okay, thank you. Mr. 20 Roisman, do you have any position or thoughts on this? 21 MR. ROISMAN: No. We just saw the 22 pleading last night and we've not had a chance to 23 formulate any position on it at this point. 24 MR. SILBERG: Excuse me, one further 25 comment. We don't have any objection if Mr. Shadis NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE, N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 wwweakgross com
90 1 wishes to share co-counsel responsibilities with Mr. 2 Block today.
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3 JUDGE KARLIN: All right. And Ms. Poole? 4 MS. POOLE: Of course, the Staff did also 5 just receive this. We will also respond in due 6 course. 7 JUDGE KARLIN: Could you speak a little fi,> 8 closer to the mic? All of you, if we can just try to 9 get a little closer, it would be helpful. 10 MS. POOLE: Yes. Is this better? II 11 JUDGE KARLIN: I think so, yes. As close 12 as you can get. 13 MS. POOLE: All right. The Staff has just 14 received this motion. We also will respond in due 15 course. We will take a position at that time. I 20 16 think generally the comment we would make is we would 17 also agree that the rules provide for addressing late 18 filed and new information in the late-filed context. 19 Also, I would just make a general statement that 20 supplements to the application are routinely made and i 21 tend to clarify or tend to clarify the original 22 application or answers questions that have been 23 raised therein, and do not generally constitute an 24 expansion of the scope of an application. But we will 25 address that in due course in our answer. And we NEAL R. GROSS 0'.11 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE, N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 wjwneafrgross.aom
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91 if 1- don't object to Mr. Shadis participating today. 2 JUDGE KARLIN: Okay, thank you. Mr. I i So we 3 Block, we have not had a chance to read this. 4 will -- other parties will have a chance to respond in 5 writing, so we're not going to act upon or delay -- on 6 your motion today, nor are we going to delay this 7 proceeding. We've all come some ways to be here and 8 it's been difficult to arrange a schedule and a 9 location. So we are going to proceed to hear the oral 10 arguments today. We'll take your motion under 11 advisement. 12 MR. BLOCK: Just for the record, I note my 13 objection to that decision and I would add that we're 14 in a situation where this is something that should 15 never have been accepted for review, but it was and 16 now in the course of the process we are being 17 prejudiced because information that we should have had 18 to respond to was not placed in the public document 19 room. It's being held and other parties such as the 20 Department have had availability to it because of 21 their particular position versus ours and I think this 22 makes it difficult. It means that the Board itself 23 doesn't really have that application in front of it 24 because you don't have that information either. So I 25 just want to make sure that that's on the record and NEAL R. GROSS I ... COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. NW. (202) 234-4433 WASHINGTON. D.C. 20005 3701 wwwneaorgrass.com II .k ..- - - .- ~-1 .
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92 I 1 that you're going ahead over my objection on those 2 issues. Thank you.
. I I" .K> '... 3 JUDGE KARLIN: That is on the. record, 4 thank you.
5 As to co-counsel situation, we would 6 prefer that there be a lead approach, but if at some 7 point, Mr. Shadis can help address a certain issue, I 8 think we'll try to understand that you're just new on 9 this thing and be liberal in that. So I think we can 10 accommodate the need for that, that situation today, 11 for this proceeding. Later perhaps, once you've 12 gotten fully on board we would perhaps be more 13 restrictive on that. 14 MR. BLOCK: I thank the Board and the 15 parties for that. 16 MR. SILBERG: Judge Karlin, one other 17 thing. We have prepared as the case and many other 18 proceedings, divided responsibility for responding to 19 contentions and discrete legal arguments and we would 20 ask leave of the Board to have my co-counsel address 21 some of the discrete issues. 22 JUDGE KARLIN: It's our preference to have 23 one counsel address all the issues, so I would 24 appreciate it if they could handle it in that way. 25 Any other preliminary matters that need to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. 11 (202) 234-4433 WASHINGTON. D.C. 20005-3701 wiNwwneaIrgross.com 's-I
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93 1 be raised? 2 All right, well I think therefore we can % k I - . . 3 begin with the formal preliminary legal issues. We 4 have 20 minutes allocated to the State, Mr. Roisman? 5 MR. ROISMAN: Yes, thank you, Mr. 6 Chairman. 7 First of all, Commissioner David O'Brien 8 has arrived and is sitting to the right of Ms. Hofman. 9 I'd just like to introduce him to the Board. We're 10 very pleased that he's here today. 11 Secondly, this speaker on our side isn't 12 worker. We can hear you and the other parties fine, 13 because we're so clear, but we don't know how well 14 people who are directly behind us are able to hear. 15 There doesn't seem to be any sound coming out. 16 JUDGE KARLIN: Thank you for noting. 17 Let's see if we can get audio-visual to help us there. 18 In the meantime can you tell us how much of your 20 19 minutes you will allocate to rebuttal? 20 MR. ROISMAN: With regard to the legal 21 arguments? 22 JUDGE KARLIN: Preliminary legal issues. 23 MR. ROISMAN: In light of what Member 24 Rubenstein said, my rebuttal will be short, I think. 25 I can read the handwriting on the wall and my opening NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. II (202) 2344433 WASHINGTON. D.C. 20005-3701 vvwweargross.com
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94 1 statement will also be much shorter than the 20 I i**. 2 minutes. I don't think I'll need more than three or 3 four minutes at most to respond. 4 JUDGE KARLIN: So you're going to reserve 5 four minutes for rebuttal? 6 MR. ROISMAN: Yes, but I won't use all of 7 the remaining 16 in the opening. 8 JUDGE KARLIN: That includes our 9 questions, you know. 10 e MR. ROISMAN: I understand. And I'll be 11 here to answer your questions all the way up to 16 12 minutes' worth. 13 JUDGE KARLIN: Okay. 14 MR. ROISMAN: Thank you. We're very 15 pleased, the State of Vermont is very pleased that the 16 Board has come here to hear these arguments. We know 17 this is not always done. Sometimes you hear them back 18 in Washington and the State is very grateful. You may 19 notice even our trees got dressed up for you. 20 JUDGE KARLIN: Very nice. 21 MR. ROISMAN: So we consider this very 22 significant. This hearing and what we hope will be 23 the subsequent hearing that the Board orders on the 24 admitted contentions is extremely important to the 25 State of Vermont. The State has raised very serious ( NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 wwwmzergrs.com
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95 1 questions about the proposal and we believe that the 2 only way to adequately address those questions is f 3 through an evidentiary hearing held pursuant to the 4 rules and regulations of the Commission. The State 5 believes that that is the most efficient and effective 6 way to deal with these serious questions. 7 And obviously, the first step in the 8 process is to determine whether or not the contentions 9 are admissible. As Member Rubenstein has pointed out, 10 this is not a hearing for determining the merits of 11 the contentions, but with due respect, the issue of 12 what constitutes determining the merits and not 13 determining the merits is quite controversial as the 14 Members are aware because it was Judge Young who just 15 recently wrote a dissent, in which Member Rubenstein 16 was in the majority, in which she said that the 17 majority -- and this is in the matter of Duke Energy 18 Corporation, the McGuire and Catawba case, LBP 03-17, 19 October 7th of 2003 in which she was critical and felt 20 that the two Technical Members had gone beyond that 21 scope. 22 My point is not to say to Mr. Rubenstein 23 that I know that she was right and he was wrong, but 24 merely to point out that this is a difficult line to 25 draw and I want to suggest what I think is the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS II (202) 234-4433 1323 RHODE ISLAND AVE.. N.W. WASHINGTON. D.C. 20005-3701 wwwneaIrgross.com K> - :
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96 1 touchstone that may -help guide the Board in making 2 this decision. ( . i 3 First, is the contention specific? I 4 think, as you will see, as we discuss through here, 5 that there's not an issue about whether or not the 6 State has made specific contentions within the meaning 7 of the regulation. The controversy has been whether 8 or not the State has provided the bases that are 9 supported, that would indicate that there's a genuine 10 issue to decide with regard to the contention. And 11 that's where the problem can come in and that's where 12 I think the touchstone that I'm going to suggest would 13 apply. 14 First thing is the basis must make sense. 15 It must be a rationale -- basis, almost by definition, 16 incorporates the idea of rationality. So if a 17 contention is made and someone gives as a reason for 18 it something that doesn't logically hook up, then 19 that's not a good basis. And it shouldn't be 20 considered as an adequate basis to support the 21 contention. So the first thing is it should be 22 logical. 23 And the second thing is there should be 24 some evidence that it's correct. Not conclusive 25 evidence. Not that when you weigh the evidence
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97 presented bycthe proponent df the contention against 2 the evidence presented by the opponent of the 3 contention, you think that the proponent is likely to 4 win or lose, but just have they put up evidence which 5 is correct, will end up supporting that basis which 6 rationally supports the contention. 7 Now again, the evidence has to have itself 8 some basis. It can't just be made up. The party 9 can't assert that something is correct and provide 10 nothing that would support that. In the case of the 11 State, as you know, we have included extensive 12 references, attached a lot of documents to our 13 pleadings, but on top of that, all of the factual 14 statements that are contained are supported by the 15 State's Nuclear Engineer. 16 In most Courts of law, which admittedly 17 this is not, the general rule is that if there is an 18 expert witness who gives an opinion with regard to a 19 matter in controversy, that opinion, by itself, meets 20 the prima facie requirements for that issue. So in a 21 Court of law, summary judgment would not be granted in 22 the face of an expert opinion. 23 So we submit here that what we had 24 submitted to the Board is an adequate supporting 25 evidence, by no means all the supporting evidence, an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE, N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 wwmneahrross.con ~. . . . . . . . . ....,..... ........
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98 I 1 adequate basis, -by-,no means all the bases, that fk. . A.: 2 support the specific contentions that we will put a i- 3 forward. 4 Now the case law that supports this view 5 that the Board, in effect, should be biased in favor 6 of the admissability of a contention where there is a 7 rational basis and some supporting evidence includes 8 9 JUDGE KARLIN: May I stop you for a minute? ,I 11 MR. ROISMAN: Yes. 12 JUDGE KARLIN: In terms of basis, yes, the 13 rule requires basis now. If you have a contention 14 that's supported by basis A and say it's admitted, at 15 some point can you then add basis B, C and D to try to 16 argue that, if it's not new, not something that comes 17 up new and later, that is, fits the criteria of newly 18 discovered or available information, but some other 19 pre-existing that you don't put out on the table right 20 now for us to understand, but later bring in and seek 21 to bring in. 22 Are you arguing that that's permissible? 23 MR. ROISMAN: Yes. Yes, we do. The case 24 that probably best illustrates that and I might add 25 that we have found extraordinarily helpful, NEAL R. GROSS ( -1 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON. D.C. 20005.3701 wwirgross.com K>
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'C r-.V particularlytfor someone like myself who --
2 [P.A. system failure.] 3 JUDGE KARLIN: Stop the time clock. 4 (Pause.) S JUDGE KARLIN: I think we're back. All 6 right, go on ahead. I'm sorry. 7 MR. ROISMAN: An odd place to get stopped. 8 I was about to complement the Staff. 9 (Laughter.) 10 So I assume they had nothing to do with 11 this electrical failure. Anyway, what I was going to 12 say is that these compilation of Commission decisions 13 that the Staff has put together and made publicly 14 available, are extremely helpful and in that regard, 15 the Staff has in that summary cited the Georgia Power 16 Company case at 40 NRC 37, and they state this 17 principle which I think is the principle that we 18 believe is appropriate. "Once a contention has been 19 admitted, Intervenor may litigate a new basis for the 20 admitted contention, falling within the scope of the 21 contention without meeting the five-prong test for a 22 late-filed contention. The test for admitting the new 23 basis is whether it is timely to consider the new 24 basis in light of its seriousness and of the 25 timeliness in which it has been raised. The more NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON. D.C. 20005.3701 wwwmeaIrross.con
100 1 serious the safety implications of the proposed new
- X 2 basis, the less important delay in presenting the 3 basis."
4 JUDGE KARLIN: Right, and you cited that 5 in your brief, if I remember correctly or it was cited 6 somewhere in the reply. 7 MR. ROISMAN: That is correct. 8 JUDGE KARLIN: Okay, I took that to be 9 more of a -- dealing with newly identified information 10 that came up later because of the timeliness issue 11 that they raised there, but okay, that's the best 12 we've got in terms of that issue. 13 MR. ROISMAN: Yes. 14 JUDGE KARLIN: Is that the best we've got? 15 MR. ROISMAN: But I think that the 16 Commission's regulations which call for a very brief 17 statement of bases and nowhere calls for a statement 18 of all the bases -- 19 JUDGE KARLIN: Well, it does say a 20 statement- of the basis, not a basis, the basis. So 21 how do we deal with that language? 22 MR. ROISMAN: Yes. Well, I think the 23 problem arises in the context of what is the 24 Commission, what is this Board doing when it rules on 25 the. admissability of the contention. If we lay out a
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-4 : contention, as we have, and we list three or four or Of:-..
2 five bases and you all decide that you don't think two
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M -V 3 of those are very good, that is, they alone wouldn't H 4 be sufficient to sustain admitting the contention, but S the other three do, I think all you're doing is you're 6 saying.; keeping in mind that the issue is not 7 admissability of bases. There's nothing in the regs 8 to say that you're to be ruling on admissability of 9 bases. You're saying the contention now is 10 admissible, because you've given us three reasons that 11 we consider to meet whatever test has been laid down 12 for that. That seems to me to imply that the focus is 13 on the contention coming in. 14 Now I don't have any problem with the 15 proposition that trivial bases that don't have any 16 serious implications shouldn't be considered just 17 because someone raises them later, but I think that 18 once the Board has decided that this issue, let's take 19 the issue *being whether or not there are too many 20 uncertainties associated with the debris blockage such
- 1. 21 that containment over pressure would not be 22 appropriate to use, once you've decided that that's an 23 important safety question that needs to be resolved, 24 it would be counter to the mission of the Board and 25 the Agency to say well here's an important NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS A: 1323 RHODE ISLAND AVE.. N.W.
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102 1 consideration that enters into that, but you could 2 have raised it back when you first made your / 3 contention, therefore you can't raise it now. You 4 would be substantively blinding yourself to something 5 that you would acknowledge is relevant and pertinent 6 to the question. 7 So I don't think the timeliness question 8 is as critical as it would be about bringing in a 9 whole new contention where we acknowledge, as we've 10 done when we -filed this sixth contention has to be 11 made. 12 JUDGE KARLIN: May I ask another question? 13 You raised issues about the status of the Staff, 14 whether they're a party or not. Why is that important 15 to you? 16 MR. ROISMAN: Okay, because we take 17 seriously these words that the Commission wrote in its 18 Statement of Considerations adopting the current rules 19 of practice, the ones that we're operating under.
-20 They said that the purpose of these were improving 21 management and the timely completion of proceedings.
22 So we ask ourselves the question, how does the Staff's 23 participation in the proceeding fulfill that goal? If 24 the Staff has a position, that is, if it's taking a 25 part in the proceeding as a party, then it has every
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103 1 right to come in and state its$position, the same as i, 2 we do and the same as the New England Coalition does 7.: - -'::7 i Is 3 or anybody else who has a position that they want to 4 take. 5 If,-iowever, the Staff says well, we're 6 not a party, therefore we're not subject to any of the 7 requirements that apply to parties, but we would like 8 to kibbutz. We'd like to give you our thoughts on 9 different issues, that I think is disruptive in delay 10 because we have to respond to it. 11 JUDGE KARLIN: Well, let me ask this, 12 isn't that exactly what the State wants to do insofar 13 as participate as an interested state and at the same 14 time raise contentions that the Staff and the 15 Applicant argue you can't do both, it's either or? 16 MR. ROISMAN: Number one, the State is 17 given the right to do that by statute. Staff is given 18 no such right anywhere in the statute to the 19 regulation. 20 Number two, the State's position doesn't 21 have to be and we've not indicated that it would be 22 that if we exercised our rights under Section 274.L 23 that we would not come in and take a position, in 24 other words, that we would come in only as a kibitzer. 25 In fact, in our initial pleading we indicated that if
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104 1 we came in under 274.L: we would voluntarily identify 2 the contentions that we cared about which we've done, 3 and subject ourselves to the requirement that we 4 submit cross examination plans and do all the other 5 things that a party would have to do. 6 Now the way the Commission's rules are set 7 up, we haven't yet reached the rubicon of deciding of 8 whether we come in under 274.L or under 309, because 9 the process says the State doesn't announce its 10 position, at least under the Commission's regulations, 11 until the Board has ruled as to whether there's going 12 to be a hearing and has decided what the contentions 13 are. So we haven't really even reached that point, 14 but I can assure you that when the State, if it 15 chooses to do that, it will not be in a position as 16 the Staff was here. 17 If you look at the Staff's answer and 18 remember what they said during our telephone 19 conference a few days ago, they said we've not taken 20 a position on the admissability of the contentions. 21 We didn't say that we agree that contention 2 or 22 contention 3 are admissible. And I went back and I 23 looked and there's some ambiguity there, but I'll give 24 the Staff that they didn't say that in so many words. 25 But they did say that contention 1 and contention 4 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RUODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON. D.C. 20005.3701 w\rwneakgrss.cx
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105 I - 1 and contenti6n 5 were not-admissible. 2 Now I submit no good is served by allowing K.>: 3 the Staff to take a position whenever it's opposed to 4 an Intervenor, but never to take a position when it 5 might support an Intervenor. And it's that kind of 6 disruptiveness that I think is caused by the Staff. 7 I would welcome the Staff in the hearing. I think 8 they have a lot to offer, but I want them to stand up, 9 raise their hand and say we want to be a party. 10 JUDGE KARLIN: I understand that. 11 MR. ROISMAN: If they want to do that, 12 that's fine with us. 13 JUDGE KARLIN: I understand part of your 14 argument is that the regulation prescribes that any 15 party may file an answer to the proposed contentions 16 and that by filing an answer the State has made itself 17 a party? 18 MR. ROISMAN: The Staff. 19 JUDGE KARLIN: Yes, the Staff, I'm sorry. 20 MR. ROISMAN: That's correct. Yes. 21 JUDGE KARLIN: Okay, two minutes. 22 MR. ROISMAN: You, through your questions, 23 have covered everything that I was going to cover, 24 unless other Members of the Board have questions. 25 JUDGE KARLIN: No. Okay, thank you. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS. 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 wwwneaIrgross.com
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106 1 MR. ROISMAN: Thank you. (*: :t 2 JUDGE MARLIN: Where do we go next? New I> 3 England Coalition. i 4 MR. BLOCK: Thank you, Mr. Chairman. We
.5 concur with Mr. Rdisman's introductory remarks as well 6 as his substantive remarks. I'm not going to waste 7 time by repeating the arguments that he's made so well 8 to the Board. We certainly agree. I wanted to add 9 a point here and there, however.
10 One thing I think supports his argument 11 about the bases is the fact that the Board has sua 12 sponte authority to take up matters that it finds that 13 perhaps have not been properly addressed by the party 14 but are contained in the material before the Board 15 when there is an issue that would be outcome 16 determinative on the Atomic Energy's requirement that 17 the Commission act in a way that will make decisions 18 that assure that there is adequate protection for 19 occupational and public health and safety. And so 20 that sua sponte authority, I think, is a parallel to 21 the fact that when there is a basis provided, that may 22 have additional support in the record materials that 23 are there that were not brought up at the time, that 24 that should be something that is properly available. 25 Because if it weren't, why would you then provide the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 wwwxneaIrgrss.com
107 -1. 1 authority t6othe Board to be looking at that entire
-it7 2 set of material and, in fact, while there is, I
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3 recognize, some limitation on the Board's authority to 4 do that and the Commission has been clear, it's also S been clear about the parameters that I've described 6 for guiding the Board in exercising that authority. 7 So I think that's a support. 8 I also think that the issue of the Staff 9 and the way in which they participate is something 10 that has concerned us as well, although we hadn't 11 raised it as a separate issue. Among the things that 12 concern us are the amount of time that the Staff has 13 to look at this process in reviewing it and the fact 14 that they're actively involved in reviewing the 15 application. They have some 10 months to do this. 16 The public has a couple of months and we're wondering 17 about the long-term effect. They've just told the 18 Board that they're going to have the application under 19 an extended review. And yet, they're here. What 20 would they be defending if they haven't made a 21 decision yet? What would their position really be? 22 And we too, welcome them, but I too, like Mr. Roisman,
.23 would like to see them assert themselves as a party or 24 else absent themselves and I find it anomalous that t,d .
25 they are continuing to process the information, C 3-1 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHOOE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 wvwjwargross.com 11
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108 1 theoretically objectively and I'm sure the Applicant all hopes that's the case and yet they're here. And may, 3 in fact, be swayed by the brilliant arguments that we 4 offer and that Mr. Roisman offers so that they would 5 tend to prejudice their review of that application. 6 So it seems to me that it's an odd 7 situation at best that they be present in the way they 8 are. 9 I'm also concerned that they continue to
- ' 10 be present as adversaries of the public and we've yet 11 to be in a proceeding where that wasn't the case. And 12 the fact that they dane to support a contention here 13 and there or part of a contention or whatever is very, 14 very little solace for the overall hostility that we find from the Staff when they're out representing the 15 16 Staff's interest in contradistinction to the public 17 and the public's interest which we feel that we're 18 representing in the proceeding.
19 I think that's all I had on this point. 20 Thank you. 21 JUDGE KARLIN: All right, thank you. Mr. 22 Silberg? 23 MR. SILBERG: Thank you, Your Honor. In 24 many ways I agree with Mr. Roisman's characterizations 25 of the standards for contentions. There are a couple
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109 I
1 of key areas where I differ significantly. Clearly, 2 they are intended to deal with serious questions.
1\ .,, 1 3 Clearly, one is not required at this stage of the 4 process to set forward all your evidence as basis for 5 a contention. Clearly, there must, be some evidence 6 supporting a basis. 7 However, I strongly disagree with the 8 factual predicate that Mr. Roisman stated which is 9 that there is no question as to whether a contention 10 or a contention that's presented here are specific. 11 We would respectfully disagree and believe that none 12 of the contentions taken by themselves are specific. 13 Indeed, the Commission's rules are quite 14 clear that one looks to the bases to determine whether 15 a contention is specific enough. As the Commission 16 stated in the Baltimore Gas decision, CLI 9825, the 17 bases provide the specificity necessary for a 18 contention's admission. And coincidentally, in a 19 Vermont Yankee Licensing Board decision, LBP 88-25, 20 the Board said that the scope of the contention is 21 determined not only by the literal terms of the 22 contention, but coupled with its stated bases and as 23 the Appeal Board said in the Public Service of New 24 Hampshire case, there's no good reason not to construe 25 a contention and its bases together to get a sense of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE, N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 wwwneaIrgross.com
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110 1 the precise issue that the Petitioner wants to raise. 2 If we read the contentions by themselves, (7:41 3 we simply can't tell what the issues are and in fact, 4 that was one of the reasons that we went through the 5 effort that we did to try to restate the contentions, 6 to make them specific enough so that we could 7 understand them. We recognize that that was a 8 voluntary effort on our part. It was certainly 9 voluntary on the part of the other parties as to 10 whether they wished to participate in that effort or 11 not and we respect their views that they did not seek 12 to participate. 13 JUDGE KARLIN: May I ask, with regard to 14 the basis versus contentions, surely you agree with 15 Mr. Roisman that what we are here to do is evaluate 16 the admissability of the contention, not the 17 admissability of the basis and that all is really 18 needed is a brief statement of the basis for the 19 contention. 20 MR. SILBERG: I think it's more than that. 21 If one looks at 2.309(f) there are perhaps 10 or 11 22 tests that the contentions must meet. 23 JUDGE KARLIN: Yes. 24 MR. SILBERG: You've described some of 25 them. (1. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 wwwlnealross .can W
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1 JUDGE KARLIN: Right.'11 ( 2 MR. SILBERG: It's more than that, but 3 basis is one of them and that's what we're focusing on 4 now. 5 And it also needs to include facts or 6 expert opinions, it has to specify sources and 7 documents. It has to reference the parts of the 8 application. It has to set up a genuine dispute. But 9 there must be some basis to the basis. We can't just 10 say -- well, -take for a statement and it's not an 11 evidentiary presentation, there has to be something 12 there there. And in many of the cases as we'll 13 describe as we go through the contentions, there are 14 documents that are described that purport to support 15 the basis, but when one looks at the documents they 16 don't, in fact, support, or they don't reflect the 17 entire picture. 18 The Commission has made it very clear that 19 an Intervenor has an ironclad obligation to reflect 20 what is in the documents that it reviews. When a 21 party has access to the documents and possession of 22 the documents and cites the documents, certainly an 23 adequate basis is not one that takes a half a loaf and 24 ignores the rest of the story. 25 When you cite a document that says there's
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112 1 a problem, problem X and you set that forth as your Is 2 basis or as supporting your basis and then the rest of i 3 the document says that problem has been solved, that 4 problem is no longer relevant, certainly that does not 5 constitute an adequate basis. 6 JUDGE KARLIN: Right. I agree if there's 7 something in a document which negates and resolves an 8 apparent issue at the beginning, but certainly the 9 basis doesn't have to be dispositive on the merits or 10 even close. It just has to be some evidence, some 11 basis that would support it. 12 MR. SILBERG: That is correct and we made 13 it very clear that the purpose here was not to argue 14 whether our evidence was better than their evidence 15 because at this point in the process there really is 16 no quote evidence. 17 What we're here to look at today is the 18 quality of the submission that the parties have made.. 19 Have they met the standards in the Commission's 20 regulations as explained by the decisions of the 21 Licensing Board, the former Appeal Board and the 22 Commission itself? We have here a situation and Mr. 23 Roisman referenced it whereas a statement by a person 24 described as an expert in and of itself is enough to 25 provide a basis. We don't think that that's correct. I.-'I. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE, N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 wwwxeakgross.con
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113 1 We'think the case law-that we cited in our ( 2 brief is clear that even an expert, an unsupported 3 opinion by an expert is not adequate. And in this 4 case where we have, in 'essence, a one sentence 5 statement in an affidavit that says everything in the 6 pleadings is true and correct, unless there's some 7 basis, some support set forth, that in itself is not 8 enough. 9 JUDGE KARLIN: Let me ask you on that, 10 I've seen that practice occur, a one sentence 11 affidavit saying I endorse everything that's in the 12 request for a hearing. 13 Is there any case law that says that 14 that's not permissible? 15 MR. SILBERG: I think the case that I 16 referenced which says an unsupported statement, even 17 by an expert is not enough to allow the admission of 18 a contention, that's the Grand Gulf -- 19 JUDGE KARLIN: Right, but there's no sort 20 of generic decision that says this practice of single 21 sentence endorsement of a pleading -- 22 MR. SILBERG: I don't have a problem with 23 that, but a single sentence endorsing an unsupported 24 statement, I don't think meets the test and that's the 25 point that I was making.
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114 r i A 1 JUDGE KARLIN: Okay. 2 MR. SILBERG: If you have a single 7 ( 1 (. ,; , " ': ,.... 7 3 statement that supports a well-defined basis and
. 17 2
T 4 contention, I think that would be acceptable. But here, where we're 'talking about a specific contention 6 and you have to have a specific contention with a 7 supporting statement that provides the basis and that 8 was in the Statement of Considerations the Commission 9 issued in 1989 when it revised the contentions rules. 10 And those rules were intended to be more specific and 11 more restrictive than what had been the practice 12 before. 13 The Commission was very explicit that it 14 wanted to tighten up the proceedings and I believe the 15 Commission has used similar terminology in some of its 16 decisions in terms of the strictness. 17 Here we think that the Board needs to 18 determine whether the petition, taken as a whole, 19 meets those standards. I think when you look at the 20 individual contentions, you will find that the 21 contentions standing by themselves do not meet the 22 standards that are set forth in the regulations. The 23 only chance that they have as you read it together 24 with the basis and supporting evidence and we've gone 4 25 into some length to describe why that combination is
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115 i I j 1 not enough., 1 " 2 With respect to your question about can 11`1_ , : 3 they add late bases, again, the contention that's I 4 admitted has to be specific enough. If an Intervenor 5 were to propose a contention that says the plant is 6 unsafe and then he had 90 bases after that talking 7 about specific technical problems, and the Board were 8 to throw out all but one of those, the contention we 9 believe would be limited to that one admitted basis. 10 Because the contention that said the plant is unsafe 11 is simply by itself too broad, too unspecific, too 12 unparticularized to be admitted. 13 If you were later to come in with another II 14 basis, if that basis is related, has a close enough i 15 nexus to the contention and its basis, as admitted, we 16 don't have a problem. But if one takes a new basis on 17 a late-filed -- in a late-filed fashion, and seeks to 18 broaden the scope of what has been admitted and what 19 has been admitted in our view is the contention as 20 defined by this specificity of its basis, then we 21 think that that filing must meet the standards for 22 late-filed contentions. Those are laid out in the 23 regulations. They're well understood by the parties. 24 And we don't think we can use a late-filed basis to
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116 ,I: 1 l JUDGE KARLIN: Okay. 2 MR. SILBERG: One other point. On the 3 Board's sua sponte authority, raised by the Coalition, 4 the Board clearly has sua sponte authority. That 5 authority is spelled out. It is clear the Board 6 determines that it needs to exercise that authority. 7 The mechanism for doing so to refer the matter to the 8 Commission. We think that's the appropriate course of 9 action. We think that's what the regulations call for 10 and nothing more. 11 JUDGE KARLIN: May I ask a question? Have 12 you taken the position in the pleadings? I thought 13 you did with regard to the State's participation qua 14 State versus participation as a party. 15 MR. SILBERG: Yes, we have. I thought we 16 were going to deal with that at the end. I'm happy to 17 deal with that now. 18 JUDGE KARLIN: Yes, certainly the type of 19 hearing that we have is a separate issue, 274.L. I 20 was focusing more and perhaps on an argument that the 21 State can either participate as a state or they can 22 raise contentions and the moment they raise 23 contentions, it's alleged their status as a state 24 disappears and they're just like any other party. 25 MR. SILBERG: That's correct. And we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 wwwncalgross.com
117 1 think -- 2 JUDGE KARLIN: Where is it written? Where K f 3 is there a reg or a case that says that? 4 MR. SILBERG: The uniform practice of the 5 Commission since I started practicing before 1969 has 6 been that a state may seek to participate as a state, 7 or that it may seek to participate as an Intervenor. 8 I'm not aware of a regulation that deals with that, 9 but I am unaware of any case in which a state has 10 tried to straddle the fence and be in two places at 11 once. 12 JUDGE KARLIN: Okay, there's no law or 13 cases that you're citing to me and maybe other parties L4 can, but what's the reason for that? It seems to me 15 that the State would have an interest in participating 16 and a right to participate under the statute and under I17 the regs and then let's say the State wants to raise L8 a few contentions because they have some points they'd I L9 like to make. Let's say there's a hearing going to be 3 20 granted anyway. Does the State suddenly lose its I 21 status as qua state? Why? What's the reason for 22 that? Why should they? 23 MR. SILBERG: I think it could certainly 24 seek to convert its status from that of an interested 225 state under 2.7315(c) to an Intervenor. However, it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 wwwneaIrgrss.com
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118 1 would have to play by the same rules that anyone else 2 does. I-3 JUDGE KARLIN: Let's assume they play by 4 the proper rules with regard to their contentions and 5 with regard to the rest of the proceeding they play by 6 the proper rules by being a state. Is there some 7 problem I'm not seeing as why it can't work that way? 8 MR. SILBERG: Well, one of the 9 requirements that they would have to make in playing 10 by the same rules is to file as a late party and show 11 why their late participation was justified. They 12 would be coming in as an Intervenor, untimely. They 13 would be raising contentions, untimely. 14 JUDGE KARLIN: Well, they've raised 15 contentions here in this case. 16 MR. SILBERG: That's correct, but I 17 thought what you were postulating was that they come 18 in as an interested state and then seek to convert 19 their role from interested state to full participant. 20 JUDGE KARLIN: Well, that's kind of what 21 the State seems to have said here. Look, we're an 22 interested state. We want to participate, and oh, by 23 the way, just to be nice we're going to let you know 24 we're interested in these five contentions, but we're 25 not giving up our status as a state. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 wwwneagross.com
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119 1 MR. SILBERG: I don't think they can have :1 ( l
- 2 it both ways because as an interested state, they
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4 JUDGE KARLIN: Yes, but I look for the law 5 6 JUDGE BARATTA: Yes, but what's the basis 7 for your statement in that regard? You said there was 8 nothing in the regulations that precluded that. i 9 MR. SILBERG: The regulations say what an 10 interested state does. 11 JUDGE BARATTA: But there's nothing that 12 says what they can't do, is there? I 13 MR. SILBERG: Three -- the requirements to 14 be a party to raise contentions are the requirements 1 15 in 2.309(f). The requirements to be an interested 16 state are in 2.315(c). And 2.309(d) says that 17 providing that a state seeks to become a party, must 18 file a petition to intervene that meets the 19 requirements of 2.309(f). 20 JUDGE KARLIN: What was that reg you just 21 cited? 22 MR. SILBERG: 2.309(d). 23 JUDGE KARLIN: D. Okay, (d) as in dog. 24 D as in dog. 25 MR. SILBERG: 2.309(d). NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON. D.C. 20005.3701 I .
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120 1 JUDGE KARLIN: Okay, so state does.file P 2 pleadings and it meets all the criteria for i 3 contentions. Does that mean it's no longer able to 4 participate as a state? I guess that's the question 5 we ask. 6 MR. SILBERG: I think it's a fish or fowl 7 situation. Clearly, the requirements, the statutory 8 requirements under which 2.315(c) are based, Section 9 274.L, require that the NRC provide a reasonable 10 opportunity. It's not full opportunity and the 11 Commission clearly has the discretion to define what 12 is meant by a reasonable opportunity to participate 13 and they've done that in the regulations. 14 JUDGE KARLIN: Is this analogous to the 15 State's problem with the Staff that on the one hand 16 they want to be sort of a broad-ranging kibitzer, and 17 on the other hand they want to be a party and 18 participate with regard to specific issues? 19 MR. SILBERG: I think that's a good 20 analogy. It's also perhaps the cherry picker analogy 21 that the Department has used in some of its 22 contentions. I think you have to make an election. 23 I don't think there's any provision that says you can 24 be an Intervenor and an interested state at the same 25 time. It would be as if the Applicant wanted to be an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 wwwrneargross.com
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121 1 Applicant and an Intervenor at the same time. Ori>if 2 the licensee happened to be a state agency that you f: ;.." I(.1 3 could be the Applicant and an interested state at the 4 same time. You are a party one way or the other, but 5 not both. 6 JUDGE KARLIN: All right. Could you 7 address this problem I have or issue with regard to 8 contentions and this is not a Motion for Summary 9 Disposition. 10 MR. SILBERG: Correct. 11 JUDGE KARLIN: This is not an issue on the 12 merits. 13 MR. SILBERG: Correct. 14 JUDGE KARLIN: This is not notice pleading 15 like under the Federal Rules of Civil Procedure. 16 MR. SILBERG: That too is correct. 17 JUDGE KARLIN: But the closest analogy I 18 come up with is, you know, a Motion to Dismiss under 19 12(b)(6), for example. 20 Isn't there law to support what we have to 21 -- pleadings need to be construed in favor of the 22 Petitioner/Intervenor at this point, if there are any 23 inferences to be made? 24 MR. SILBERG: I think the Commission in 25 adopting the restated Part 2 in 1989 made it clear -- NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 wwwneaIrgross.com
122 1 JUDGE KARLIN: The strict by design? I-2 MR. SILBERG: That is correct. And I i ,
.3 think while one can lean over in a variety of 4 directions in evaluating, I don't necessarily believe 5 that any party gets the benefit of the doubt. I think 6 the tests are set forth in the regulations. I think 7 the tests are set forth in decisions that interpret 8 the regulations. And I think that's what needs to be 9 applied.
10 I have no further comment. 11 JUDGE KARLIN: Any questions? 12 JUDGE RUBENSTEIN: No. 13 JUDGE KARLIN: Thank you. Thank you, Mr. 14 Silberg. 15 MR. ROISMAN: Excuse me. I've gotten a 16 note from someone in the audience that indicates that 17 people in the audience are having a hard time hearing. 18 I had a little trouble hearing Mr. Silberg, but he's 19 fairly clear. 20 (Applause.) 21 I think it has to do with the fact that no 22 sound is coming out of this speaker over here. 23 JUDGE KARLIN: I appreciate that. I think 24 one thing we can all do is perhaps bring the mics a 25 little closer. I think that might help. (:. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 2344433 WASHINGTON. D.C. 20005.3701 wwneaIrgross.com
123 1 Is sound coming out of this speaker? Yes. 2( It's on. 3 (Pause.) 4 We're going to try to take a break in a 5 minute, but I'd like to shave the Staff be able to 6 address this issue. 7 That's on. Okay, great. I appreciate -- 8 let us know if the sound is not sufficient and we'll 9 all try to address that. Thank you. And the 10 audience, too. 11 We'll proceed and try to get the Staff to 12 address this issue in the time it has and any reply 13 and then we'll take a break at the end of this 14 section. 15 Ms. Poole? 16 MS. POOLE: Thank you, Your Honor. I 17 think first, we'd like to address the role of the 18 Staff in this proceeding since that issue has been 19 raised. I'll try to be louder. 20 The Department states that pursuant to 21 Section 2.309(h), the Staff is deemed to be a party
- 22 and the Staff's right to file an answer in this 23 proceeding is dependent upon its having party status.
24 The Staff has read and understands the language of 25 Section 2.309(h)(1), but we nonetheless take the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHOOE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 wwwnealrgross.con 1J' 1 .~~~. . .... . . . . . . ' :a.
124 1 position that there are no parties t& this particular
,. t. 2 proceeding, unless and until the Licensing Board
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4 pursuant to 10 CPR Section 2.1202(b) (2), the Staff 5 shall notify the Licensing Board and the parties 6 whether it desires to participate as a party arid will 7 identify the contentions -- 8 JUDGE KARLIN: May I ask what section was 9 that? 10 MS. POOLE: That's Section 2.1202(b):(2). 11 It's in subpart L of the Rules of Practice. 12 JUDGE KARLIN: So that presumes it will be 13 under subpart L? 14 MS. POOLE: It does presume it will be 15 under subpart L. 16 JUDGE KARLIN: Well, okay. 17 MS. POOLE: I understand that that's an 18 issue, but that's what we're presuming. 19 I'd also say that the Department cites to 20 the Statements of Consideration for the recent 21 revisions to the Commission's Rules of Practice for 22 the proposition that the Staff should not set forth a 23 position on or otherwise assume an advocacy position 24 with respect to the contested matter in the
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25 I1 adjudication before the Licensing Board. NEAL R. GROSS COURT REPORTTERS AND TRANSCRIBERS 1323 RHOQE ISLAND AVE. N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 wwwnealrgross.cmun ( .k 11 .: II - -.. ' A. . .--
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125 1 In fact, the quoted discussion refers to 2 a subpart L provision, Section 2.1202(a) which Ho 3 requires the Staff to provide notice to the Licensing 4 Board of its action on the application for which a 5 hearing has been provided. That provision, of course, 6 is not at issue in this proceeding. 7 As stated elsewhere in the Statements of 8 Consideration, and here I'm referencing 69 Federal 9 Register at page 2187, it is true that in proceedings 10 where the Staff is a party, the Staff may not be in a 11 position to provide testimony or take a position on 12 some issues until the Safety Evaluation Report and 13 environmental review documents have been finalized. 14 In the event a hearing is granted and the Staff elects 15 to participate as a party, and it is true that in 16 saying this I'm assuming a subpart L proceeding. The 17 Staff -- but in any event this is true -- the Staff 18 will not take a final position on the merits of any 19 contested matters until the Safety Review has been 20 completed in the areas that are relevant to contested 21 matters that are at issue. 22 The governing regulation is 10 CFR Section 23 2.337(g) (2). If we're not a party to the proceeding, 24 we'll provide the Safety Evaluation and the relevant 25 ACRS report pursuant to Section 2.337(g)(3). NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 wwwnealrprs .com _ ~~~~~~~~~. .. ,*-:'-*-..,.A.{ : ' .*
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126 I 1 I want to clarify-'tihat in our answer the 2 Staff did not take a position on the merits of the
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1: 3 contentions themselves, but rather made legal 4 arguments as to admissability. I'd like to say also 5 to clarify a coupI1e of points raised by the Department I.: 6 and the Coalition in their oral arguments this 5 7 morning, it's not quite correct to say that we didn't 8 take a position in the phone call last week with 9 respect to admissability of contentions. We certainly 10 did do that. I think our papers are clear. 11 I believe what Mr. Roisman references was 12 a statement I made that we didn't object to, as 13 opposed to supported admission of a contention. That 14 was all that was. 15 I also wanted to address that we don't 16 feel we're adversaries to the public at all. We want 17 to put that on the record. We feel at this stage of 18 the proceeding that the Staff is in a way a keeper of 19 the regulations and when we address admissability of 20 contentions, we're really, we feel that we're 21 dispassionately considering whether the regulations 22 have been complied with in this proceeding and that's 23 what our pleadings refer to. 24 JUDGE KARLIN: We like to think that's 25 what we're doing too. K NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS (202) 234-4433 1323 RHODE ISLAND AVE.. N.W. WASHINGTON. D.C. 20005-3701
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127 1 MS. POOLE: Yes.: And if we do participate 2 later, our advocacy position that we would take would W..-@.. 3 be to represent positions the Staff has taken with 4 respect to the safety evaluation performed on this i 5 matter. 6 I'd like also to speak briefly on the 7 matter of admissability of contentions. We do think 8 that the contention and admissability standards have 9 been well briefed and we won't discuss what's in our 10 papers. The only additional point that we would make 11 in which the Department has stated the Licensing Board 12 lacks the authority to rule on a basis, the Staff 13 takes the position that was recently articulated in 14 the Catawba proceeding that when determining the scope 15 of a contention, one looks not only to the contention 16 itself, but also to the bases provided for the 17 contention. We believe the bases clarify and limit 18 and define the scope of a contention. That's the way 19 we formulated our answers. 20 JUDGE KARLIN: So if there's a contention 0 21 admitted on basis A and later they seek to bring in 22 basis B and C, under any circumstances would that be 23 admissible? 24 MS. POOLE: If it satisfied -- the Staff 25 takes the position that that would be subject to the NEAL R. GROSS COURT.REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVSE, N.W. (202) 234-4433 WASHINGTON. D.C. 2000D-3701 wwwme.rgoss oom
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.128 1 late filing rules and it could be_-dmissible if late 2 filing -- . (.;.
3 JUDGE KARLIN: So it could only be 4 admissible if it's a late-filed contention? 5 MS. POOLE: No, we think a late-filed 6 amendment to the contention would also, to an admitted 7 contention would also be subject to the late filing 8 rules. 9 JUDGE KARLIN: Where is that in the regs? 10 Why do you take that? I mean all that is required 11 that a contention be filed. There's a number of 12 requirements, obviously, and that there be a basis, 13 the basis stated for it. It's different from a 14 contention. Basis and contention aren't the same. So 15 late-filed contentions are not the issue. K.., 16 MS. POOLE: No, I understand. We look at 17 Section 2.309(f)(2), we note -- it states the 18 contentions must be based on documents available at 19 the time, etcetera. But we note there's a sentence 20 here and here I'm reading, "otherwise, contentions may 21 be amended or new contentions filed", only if the 22 late-filed standards are fulfilled. 23 So we believe that 2.309(f) (2) references 24 amendments and covers amendments as well as entirely 25 new contentions. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 vmwneargross.corn
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129 1 JUDGE BARATTA: So it's your position then 2 that additional bases would be an amendment to the ( A 3 existing contention. 4 Suppose it doesn't change the scope of the 5 contention? 6 MS. POOLE: We still think there would 7 need to be a reason why those bases were not preferred 8 in a timely manner. 9 I think we'd still seek to apply the 10 2.309(f)(2). 11 I'd like also to speak briefly to the 12 question that you posed to the Applicant regarding the 13 scope of the State's participation, that is, whether 14 there is a regulation which would preclude a 2.309 15 party from also participating under Section 2.315(c). 16 That is actually addressed in Section 2.315(c) and it 17 was the subject of a recent order by the Licensing 18 Board in the on-going Louisiana Energy Services 19 proceeding. 20 I'm referring specifically to an 21 unnumbered order dated September 14, 2004. In that 22 proceeding a state agency which has been admitted as 23 a party, was also seeking to participate as an 24 interested state on certain matters. The Licensina 25 Board in that case noted-and they cited 2.315(c) and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 www.nealtgross.com
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130 1 that section states, in-part, "the.presiding officer 2 will afford an interested state which has not been ( - .- 3 admitted as a party, under Section 2.309, a reasonable 4 opportunity to participate in a hearing." 5 Therefore, the Licensing Board stated in 6 that proceeding, "on its face, this new language" and 7 I would there refer to the clause "which has not been 8 admitted as a party under Section 2.309, precludes 9 participation under Section 2.315(c) by an interested 10 governmental entity that has been admitted as a 11 Section 2.309 party to the proceeding, regardless of 12 the fact that its interested governmental entity 13 participation would involve another party's admitted 14 contentions." 15 JUDGE KARLIN: I'm familiar with that case 16 and I read it. That is not binding precedent from the 17 Commission or any regulation. 18 MS. POOLE: That's correct. 19 JUDGE KARLIN: And I think -- I don't have 20 the command of it right now, I think there are some 21 issues about that. So okay, I'm aware of that 22 decision. Thank you. 23 But what's the reason for that? I mean it 24 seems to me the statute and the regs say that a state, 25 because it's a state, has an opportunity to C1 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE. N.W. wwwneaIrgroos.cxm (202) 2344433 WASHINGTON. D.C. 20005-3701 "I _ . . . - ..
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131 1 participate in the hearing without raising contentions t - 2 or being a party. Then the state has the right, just 3 like anyone else to raise contentions. Why does the 4 fact that it raises contentions suddenly vitiate the 5 statutory and other rights it might have to 6 participate on the other parts of the proceeding? 7 It's sort of a Hobson's choice. You can do one or the 8 other, but why? What's wrong with it because of some 9 difficulty in the ultimately evidentiary hearing that 10 would make it unadministratable or difficult to 11 handle? 12 MS. POOLE: Well, I think the Staff takes 13 the position that Section 2.309 itself provides for 14 equivalent participation rights. Obviously, Section 15 2.309(f) provides for adoption of contentions of other 16 parties which we think the State would be free to do 17 in this proceeding. 18 In addition, since this is not a mandatory 19 hearing, the scope of the hearing will be limited by 20 the admitted contentions and there's nothing barring 21 the State from adopting every single admitted 22 contention, provided any are admitted, that would 23 enable it to participate in a plenary fashion on all 24 issues that we would be addressing. 25 JUDGE KARLIN: So you're saying there's no NEAL R. GROSS C. COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 wwwr.ngrosscor
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132 1 practical benefit to'its retaining itscstate status? ( 2 MS. POOLE: We don't think it's necessary ? 3 of the failure to do so would abridge the right of the 4 State in any way? S JUDGE BARATTA: Well, what about the 6 language that's in the Atomic Energy Act which would 7 allow the State to call witnesses and to cross 8 examine? That goes considerably beyond what the 9 parties in the type of proceeding we're looking at 10 would do. 11 MS. POOLE: I think our position is that 12 2.315(c) is the Commission's reasonable interpretation 13 of what the Atomic Energy Act would permit and if 14 you'll give me a moment while I look at Section 15 2.315(c) -- 16 JUDGE KARLIN: Well, that's a key point 17 and perhaps that's where this discussion starts to 18 move over into the type of hearing. That's exactly 19 the question. 20 MS. POOLE: I can't address that, but I 21 can do it later if you would prefer to take it up 22 later in the day. 23 JUDGE BARATTA: We can take it up later, 24 if you like. 25 JUDGE KARLIN: That's fine. So that's the f NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 rwwnealrgross.com
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133 1 practical, one of ~`the key practical differences 2 perhaps. 3 MS. POOLE: I think that the regulation 4 addresses that, but we can address it at the later S time. The only other thought that I think we'd like 6 to add is respect to sua sponte contentions. I just 7 want to point out, of course, we agree as is set forth 8 in the Commission policy statement on the conduct of 9 adjudicatory proceedings, CLI 98-12, "a Licensing 10 Board may consider matters on its motion where it 11 finds that a serious safety environmental or common 12 defense and security matter exists." 13 The Commission policy statement indicates 14 that such authority would be exercised in 15 extraordinary circumstances and we just wanted to make 16 note of that. 17 JUDGE RUBENSTEIN: Well, could this 18 question be addressed by certification say of the 19 issue? 20 MS. POOLE: Certainly, certainly, it 21 could. And that's all we have on these matters. 22 JUDGE KARLIN: Thank you. Mr. Roisman, I 23 think you reserved four minutes. 24 MR. ROISMAN: Yes, thank you. I just want 25 to touch on a couple of points. Number one, Entergy Ct NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 wwwrealrgross.con I..
134 1 makes the argue that the case law imposes an ironclad 2 obligation on the Intervenor and there's some
- 3. controversy about what that ironclad obligation is.
4 If you read the case, it says it's an ironclad 5 obligation to look at all the relevant material that's 6 available to us. There's no ironclad obligation for 7 us to discuss it all. Our expert was careful to read 8 everything that was readily available to us. Some of 9 it he found useless. He didn't mention it at all. 10 The Applicant and Staff thought that;some of that 11 other stuff was relevant. That's why we think this is 12 a disputed issue and why we should have hearing. 13 We'll get down to that when we get down to the 14 hearing. 15 I want to be clear about what the ironclad 16 obligation is. It would absurd to believe that the 17 Commission said that every intervention petition had 18 to include a discussion of every conceivably relevant 19 document. I shudder to think what your file would 20 look like if somebody attempted to do that. 21 Secondly and related to that is this 22 question about whether or not a document should be 23 read in its entirety. Of course, it should be. And 24 there are several documents that are in controversy in 25 this case. What does the document say and what does NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHOOE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 v~vwxneatrgross cm t . .,
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- i. I 1 it stand foifProbably the best example is the Reg.
. (1:... i.,. . 2 Guide 1.82, Revision 3. And we'll get into the merits s i 3 of that argument, but I want to point out here that iI 4 that's precisely the kind of disputes that are why we 5 have hearings, not that you hold a hearing to decide 6 how that dispute comes out. That doesn't mean that-if 7 we say well, on the first page of the document it says 8 X and on the last page of the document it says not X, 9 that that's not a relevant way to say the document 10 doesn't support what we say. -But I think in every 11 instance you'll see that there's'controversy about 12 just how far you can carry this document and whose 13 side does it support. 14 Third, what is the goal of this process? 15 The goal of the process and the Commission has made 16 this clear *in its Statement of Considerations that 17 went along with the adoption of the regulations that 18 we're now operating under and this is at page -- 19 Federal Register 69, page 2202. "The requirement to 20 have specific contentions with ! the supporting 21 statement of the facts alleged or expert opinion that 22 provides the bases for them in all hearings should 23 focus litigation on concrete issues and result in a 24 clear and more focused record for the decision." 25 So the real test and when we get to the I. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 wwwxnleagoss.om
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136 1 contentions we'll talk'abo8t that is is it clear? 2 Have we made clear what we're talking about? A lot of ( t 3 this argument that we've been having about whether we 4 can amend the bases, we can't amend the bases are 5 abstract arguments. I submit when we get to the 6 contentions there's nothing abstract about it. It's 7 very concrete about what we're saying and maybe some 8 of these controversies are best left to the time when 9 we try to do something, if we do, that the other side 10 thinks we shouldn't do. 21 I'm sorry? 12 JUDGE RUBENSTEIN: I have a question. 13 MR. ROISMAN: Yes. 14 JUDGE RUBENSTEIN: Regarding the ironclad 15 obligation to be aware of all of the available 16 information at the time of formulating a contention, 17 say a word or two on does this obtain for the issuance 18 of a new contention or a change in the scope of an 19 existing contention? 20 MR. ROISMAN: I would think that if a 21 party were going to submit a new contention or seek to 22 amend the test, one of the tests that they would have 23 to meet would be to show that they hadn't had 24 available to them or it wasn't reasonable for them to 25 have available to them other information. NEAL R. GROSS i C,' COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON. D.C. 20005X3701 www.neakgross.com
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137 1 - Now the 'body of information here is I: -1 2 massive. (7 : 3 JUDGE RUBENSTEIN: So the standard is it 4 has to be clearly new information and this would then
- 5. be subject to the late filing requirements?
6 MR. ROISMAN: I think the standard if it 7 were a new filed contention or an amendment to an 8 existing contention, not a new basis, I think the
< -- - 9 standard would be that you'd have to demonstrate that 10 it wasn't reasonable for you to have had that 11 information available to you earlier. There could be 12 a lot of reasons for that. It might still be that the 13 information was out there, but for whatever reason, 14 for instance, you heard NEC today talk about the fact 15 that there are RAI amendments that are coming into 16 this application almost daily, but they don't get up 17 on the Adams extension for a much later time.
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18 Now the State gets them served on us and 19 so we have them more timely. But NEC does not. So 20 there you have an instance where the information is in 21 existence, but it wouldn't necessarily be reasonable 22 to expect NEC to have relied on it. 23 JUDGE RUBENSTEIN: Thank you. 24 MR. ROISMAN: I want to talk about lastly 25 this question, just very briefly. I know we're going NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. II (202) 234-4433 WASHINGTON, D.C. 20005-3701 wwealrross corn
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138 1 to come back to it, abouit the state having to make its I. . 2 choice. 3 Section 2.315(c) definitely says the words 4 the Staff counsel cited. What is missing, however, 5 both in the section and in the Statement of 6 Considerations and I made some effort to go back to 7 look at its original history as well, is any statement 8 by the NRC that says this represents our entire effort 9 to identify the way in which a state may participate 10 as an interested party. 11 What we have is not just a regulation. 12 What we're saying is that there's a broader right 13 established by statute. The NRC has carved out in its 14 regulations a subset of that and specified certain 15 provisions that apply to certain states under certain 16 conditions. Well, that doesn't affect all the rights 17 that are given by 274. And we've discussed at length 18 in our reply why we think that the rights that we're 19 talking about apply. 20 Again, I want to stress this may turn out 21 to be moot. It may not be that there is anything else 22 *that the State wishes to raise. But by the same 23 token, we didn't want our filing of contentions to 24 abrogate our rights.
.. 25 11 JUDGE KARLIN: Time is up. Thank you.
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139 1 MR. ROISMAN: Thank you. (z 2 JUDGE KARLIN: I didn't ask you, Mr. 3 Block, before you began whether you sought to reserve 4 any of your time for rebuttal, so I thought that -- I 5 think you took less than the 20 minutes, so I would 6 give you say four minutes, if you have anything you 7 want to say? If you don't, we can take a break. 8 MR. BLOCK: I don't want to hold up that 9 break, but I think I only have one or two points that 10 I wanted to address here. 11 I note that the Staff had cited 2.1202(a) 12 which is under subpart L and mentioning that they have 13 an obligation to notify the Board when it takes 14 actions of various kinds. And I wonder about the 15 documents that have been withheld in this case that 16 are not available in Adams, that are in their hands, 17 but they're holding the release date on them. 18 I also think that Mr. Roisman's statement 19 is only partly correct, that there are -- in addition 20 to RAIs, other information that's being used to 21 supplement the license and these license supplements 22 when you look at what's available in Adams up until I 23 believe it's the 18th or the 19th of this month, just 24 the other day, and on the website where it has the 25 application laid out, it goes supplements 1 through 13 NEAL R. GROSS ( COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 wwwnealrgross.com .Y . . . . .
140 4 1 and 1n; 14, 16, 17, 18, 19, 20, all waiting to be 2 released, 16 having been released the other day. 3 So it really is an interesting question as 4 to where the Staff's obligations lie in terms of
- 5. keeping the Board informed. I realized when they 6 cited that, it's subpart L, so maybe it's not in play 7 yet, but then what is their role exactly? I mean you 8 can take the obverse of that position and say well, if 9 we haven't made a decision there's a proceeding, what
.10 exactly would their role be at this point and I don't 11 think that the fine legal argument point that they put 12 on their comments about the contentions actually 13 removes them from having provided strong argumentation 14 for accepting this one or dismissing that one and oh, 15 we'll go with this one. So it really does cross a 16 line and I think that it really raises the question of 17 what their proper role is here.
18 Can I just confer with Mr. Shadis a 19 moment? 20 JUDGE KARLIN: Sure. 21 (Pause.) 22 MR. BLOCK: I think that's all at this 23 point. Thank you very much for the opportunity to 24 rebut. Next time I will be careful to ask for the 25 reply time. i
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14i iL 1 JUDGE KARLIN: Okay, thank you, Mr. Block.
.. 4 In 2 All right, why don't we take a recess. I I.
3 have about 16 of the hour. Let's reconvene about 5 4 of. If we could take a 10 to 12 minute recess. So 5 5 of or 12 minutes from now. 6 (Off the record.) 7 JUDGE KARLIN: Thank you. We'll go back 8 on the record now. 9 I think at this point we proceed to 10 contention 2 which is State's contention 2 and Mr. 11 Roisman, you have 20 minutes. 12 MR. ROISMAN: Yes. 13 JUDGE KARLIN: How would you allocate your 14 time? 15 MR. ROISMAN: About three minutes to 16 summarize what I want to say about the contention, 17 maybe four and I think the most efficient thing is for 18 me to answer questions as long as the Board has to ask 19 them. And if there's any time left after the Board 20 has finished asking me questions, then I'll reserve 21 that for rebuttal. I don't want to stop answering, in 22 fact, I won't stop answering your questions just 23 because I've run out of my pre-allotted time. 24 JUDGE KARLIN: All right, but tell me how 4 ,,. 25 much will you reserve, 5 minutes then? i NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE, N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 wwwenealrgross.com K-;
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142 i 1, 1 Yo'uget 20 minutes worth of time. i I i I 2 MR. ROISMAN: Right, and I'm saying I'm 1 .: i 3 going to take five minutes of things that I want to 4 say excluding any answers I give to you and I'll take 5 whatever is left of my 20 minutes for rebuttal after 6 I've answered all your questions. I don't know what 7 that will be. 8 I want you to do for me what you did for 9 Mr. Block, acknowledge that he didn't use up all his 10 time and just tell you, I'm going to reserve the rest 11 of my time for rebuttal. I think there will be a lot 12 that I will want to say in rebuttal, I can't predict 13 how much of my time you all will take with questions. 14 JUDGE BARATTA: I think our intent was 15 that the 20 minutes would include our questions. Is 16 that correct? 17 JUDGE KARLIN: Yes, and I think that's 18 what Mr. Roisman is acknowledging. All right, we'll 19 try it that way and if we exhaust our questions and 20 use up the full 20 minutes, then you'll get no 21 rebuttal. 22 MR. ROISMAN: That's correct. 23 JUDGE KARLIN: And if there's any time 24 remaining, then we can allocate that, if there's any 25 rebuttal. NEAL R. GROSS I'. COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 vwwwealqrgss.com
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143 1 MR. ROISMAN: ' Yes, I won't use the K,. 2 rebuttal just because it's there. 3 JUDGE KARLIN: We will ask Mr. Wachter to 4 at least give us a 10 minute warning once it's 10 5 minutes into this thing. Okay? 6 All right, thank you, Mr. Roisman. Please 7 proceed. 8 MR. ROISMAN: The essence of the second 9 contention is that the Applicant's proposal to take 10 credit for containment over pressure represents a 11 licensing basis change that has never previously been 12 evaluated for this plant. 13 In order to make the evaluations that are 14 necessary to see whether or not containment over 15 pressure, if utilized, would meet the safety 16 requirements which we've specified in the contention, 17 its necessary to determine two things. Number one, 18 how much the NPSH is going to be impacted by blockage, 19 flow blockage inside the reactor in the event of the 20 initiating event, in this case the loss of coolant 21 accident. 22 Our contention is that that determination 23 is fraught with a high degree of uncertainty and we've 24 gone to some great effort in our petition at pages 21 25 to 23 and in the reply brief at pages 26, 29 and 30 to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS
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144 1 31, to'lay out the'types of uncertainties that we are 2 talking about and to identify the sources, that is, 3 the evidentiary base for our belief that those items 4 are uncertain. 5 Now I could, but I suspect that it would 6 not be fruitful for me to sort of read off to you what 7 we've already written down there, so I'm not going to 8 do that. 9 The point is that on that side of the over 10 pressurization question, in other words, how much NPSH 11 is going to be lost and therefore how much over 12 pressurization is going to be needed, there is a great 13 deal of uncertainty, so much uncertainty that it would 14 be irresponsible and not adequate protection for the 15 public health and safety to deal with the NPSH 16 deficiency problem by using over pressurization to 17 meet the problem, that over pressurization, that is 18 the reality that in the event of an accident the 19 inside of the containment is going to have more than 20 atmospheric'pressure in it, has always been there as 21 a safety margin, that we knew might help out for NPS11 22 in the event of an accident, but we didn't allow an 23 Applicant to take credit for it because we didn't have 24 enough confidence in the certainty with which we could 25 say how much of that credit you needed. We wanted the NEAL R. GROSS COURT REPORTERS AND TRANSCRI8ERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 wwwneafiross.corn
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145 Applicant "to prove that it could meet its NPSH II 2 requirements without taking credit. So that's one 3 half of the uncertainty. Pi. , 1i 4 The other half of the uncertainty is that 5 there's uncertainty about how much containment over 6 pressure will actually exist in the event of loss of 7 coolant accident. We pointed out, for instance, that 8 with regard to this particular plant, there is a 9 history of containment isolation valve leakage. You 10 remember, this was one of those issues on which we got 11 into this argument that Mr. Silberg raised where he 12 said well, that's just one of those assertions by an 13 expert that the Board shouldn't take any account of. f We pointed out in our reply brief and I
.4.
14 I . . 15 want to re-emphasize here how significant that 16 statement is from Entergy. Number one, this isn't 17 just any old expert. This is a man whose job and 18 responsibility is to watch what's going on at Entergy. 19 So he knows not perhaps as well as the Entergy people,
; 20 but very well when Entergy runs tests and when they 21 have failures or when the tests show that they aren't 22 performing at the level that they should perform at.
23 So when he made that statement in the initial 24 petition, he was offering an opinion based upon his
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146 1 experience. 2 But beyond that, as we point out at the 3 reply on page 25, there was, in fact, an actual 4 document, well known to Entergy, that demonstrated 5 that, in fact, they've had a problem, - a recurring 6 problem that when they do isolation valve testing, 7 they are having more leakage than they had expected. 8 That's the basis. 9 Now that will be relevant and we'll come 10 back to it Wzhen we later at the end of the day today 11 or tomorrow when we get to it, talk about why we ought 12 to have an evidentiary hearing in this case in which 13 we have the right to cross examine Entergy's 14 witnesses. 15 There are other uncertainties associated 16 with the containment over pressure problem as well. 17 The calculations of pressure and temperature that are 18 to be present in the containment remain subject to 19 substantial uncertainty. We discuss this in our reply 20 on page 29. 21 We point out that these calculations of 22 the extent to which over pressure will be available 23 and will be used to offset NPSH deficiencies -- 24 JUDGE KARLIN: May I stop you there? On 25 page 28 of your reply brief you list, there's a long NEAL R.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE, N.W. 11 (202) 2344433 WASHINGTON. D.C. 20005.3701 wwwrealrgross.orn
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147 i 1 ilist of uncertainties you've put in there. I think K> 2 that list is significantly longer than the list you 3 had in your original request for hearing. 4 I also understand that the Staff position 5 was it did not object to some of those listed, you had 6 in your original request for hearing, but one of the 7 questions I will have for the Staff and for you is 8 well, are we now talking about admitting all of these 9 uncertainties as part of the bases or just the ones 10 that were in your original request for hearing? 11 MR. ROISMAN: Good question and thank you. 12 Our position is that the uncertainties are not the 13 bases, they're the evidence. The basis is that there 14 are uncertainties which make it inappropriate to use 15 containment over pressure to compensate for NPSH. 16 JUDGE RUBENSTEIN: And did your opinion of 17 the uncertainties arise from an examination of the 18 calculation and one can say going to the calculation 19 in the SAR, these specific deficiencies arise? 20 MR. ROISMAN: It arises -- 21 JUDGE RUBENSTEIN: Excuse me, are these a 22 matter of omission or deficiency in the analysis? 23 MR. ROISMAN: They are primarily a matter at least as I I 24 of omission, but keep in mind, 25 11understand it, the way the calculation works is that IC; I (202) 2344433 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. WASHINGTON. D.C. 20005-3701 wwswrnaigrossmn
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148 there are assumptions that go into the calculation. .- k~1 2 So what we're saying is that those assumptions are 3 based upon uncertainties that -- I mean somebody had 4 to make a resolution. They had to say well, it could 5 be this high. It could be that low. And we're going 6 to make the assumption that -- and they pick some 7 number. 8 Our position is that that matter is so 9 uncertain, that there's no adequate basis to bound the 10- magnitude of the uncertainty and therefore any 11 assumption that's made and used in the calculation is 12 inherently unreliable. 13 JUDGE RUBENSTEIN: And if this contention 14 were admitted, you would make an argument, a technical 15 argument on the pros and cons of the uncertainty and 16 the assumption? 17 MR. ROISMAN: I'm not sure I know what you 18 mean by the pros and cons. We would make an argument 19 that identified what aspects of the underlying 20 calculations or the underlying test results left doubt 21 as to whether or not you could reliably draw a number 22 out and use it in a calculation. 23 JUDGE RUBENSTEIN: And to the significance 24 of it. 25 MR. ROISMAN: You mean as to what the -- NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005.3701
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149 1 JUDGE RUBENSTEIN: Yes. 2 MR. ROISMAN: I'm not sure that we're 3 going to be able -- I think what you're asking is can 4 we run a sensitivity analysis on the calculation. 5 JUDGE RUBENSTEIN: No, I'm asking you do 6 you have some sort of a technical basis to add to the 7 record, so to speak, on the difference between what 8 you think a value should be and what Entergy perhaps 9 thinks. 10 MR. ROISMAN: I need to be clear on this. 11 Our position is not that we know what the value should 12 be. Our position is that there's not enough 13 information to reliably come up with a value such that 14 it would be appropriate to use containment over 15 pressure to compensate for NPSH deficiency. 16 JUDGE RUBENSTEIN: But specifically in 17 addressing the uncertainties, are these uncertainties 18 which are in the existing calculation for containment 19 pressure or are these related specifically, the 20 calculation and methodology is what I'm talking about, 21 are these related specifically to something that 22 arises from the need for over pressure? 23 Are you basically challenging their 24 ability to calculate temperature and pressure in the 25 suppression pool as it exists today in their NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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150 l - 1 methodology? C.( "I::.. 2 MR. ROISMAN: We're attacking on both I WL I 3 halves. We're both saying that the amount of over 4 pressure that's needed, in other words, the 5 calculation of the loss of NPSH in a LOCA is 6 uncertain. And we're attack that we don't know how 7 much, we don't know reliably enough how much over 8 pressure there's going to be and its duration 9 sufficient to say we can meet whatever that NPSH I i 10 deficiency is with this over pressure number. 11 JUDGE BARATTA: I think the point that's 12 being made here though is that -- sounds like you're 13 attacking the current licensing basis as well as the 14 basis used to support the uprate. is MR. ROISMAN: No, because our position is 16 that with regard to the current licensee, no attempt 17 is made to take credit for containment over pressure. 18 Therefore, there is a margin of safety that says we 19 realize we have some uncertainties here, but we're not 20 going to try to take credit to deal with that 21 uncertainty from something that itself is uncertain. 22 We're going to deal with the NPSH deficiency in a 23 different way which Vermont Yankee does when it 24 operates without uprate. It's only when it gets to 25 uprate that over pressure or something has to be done. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHOOE ISLAND AVE., N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 wwwmealrgross.com II . ..
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151 1 JUDGE BARATTA: But isn't it true that in A. -( " I 2 the current license basis one has to determine the i . . 3 core's pressure during a variety of different I 4 accidents and it's exactly that issue that you seem to 5 be questioning as to whether or.not the uncertainties 6 have been adequately quantified. 7 MR. ROISMAN: Let me see if I can explain 8 it like this. You have an automobile. You know that 9 there's a question about just how good the brakes are, 10 but you feel pretty comfortable that as long as you 11 drive it 55 miles or less, any accident that might 12 come up you'll be able to stop it in time. But you 13 want to now get permission from the Vermont State 14 Police to operate that car at 75 miles an hour. Same 15 brakes. 16 Now the question is how are you going to 17 deal with the problems that might arise with the same 18 set of brakes if the car is going 75 miles an hour? 19 Someone comes in and says well, when the cars goes 75 20 miles an hour, there's a risk that if you step on the 21 brakes, you could blow out the rear tires. And 22 someone says well, you know, we always thought that 23 this car could operate safely with only front tires 24 and no rear tires. And now we're going to take credit 25 for that concept and allow you to run your car at 75 i. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE. N.W. (202) 2344433 WASHINGTON, D.C. 20005.3701 wwwnealrgross.can
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152 i 1 miles an hour. 2 So we're not saying that it wasn't safe 3 and isn't safe to run the car at 55 miles an hour. 4 We're saying that when you run it at 75, you're now 5 taking credit for something which we always had in the 6 background and didn't have enough confidence in what 7 you used before and you shouldn't be allowed to use it 8 now, given the magnitude of the uncertainty. 9 So it's only related to the consequences 10 if the plant is uprated. It's not an attempt to say 11 that the plant, as currently operated, without uprate, 12 isn't safe or that these uncertainties cause you to 13 have to shut it down or reduce its power or any other 14 thing. That's not what we're saying. 15 JUDGE RUBENSTEIN: So one would look at 16 assumptions that don't arise from the extended power 17 uprate in the modeling, in the calculation that they 18 do and if they're not affected by the change, those 19 uncertainties would be or would not be in question? 20 MR. ROISMAN: They would still be in 21 question. The point is that the level of uncertainty 22 associated, I know you're focusing on the containment 23 side of this, so I'll stay on that side. The level of 24 uncertainty in determining temperature and pressure in 25 the containment is a reality. There's nothing that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 wwwneaIrgmss.cox
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2 uncertain. What we are saying is that because it's 3 uncertain, the NRC has traditionally said don't count I ` 4 on over pressure to solve some other problem in the 5 plant. 6 JUDGE RUBENSTEIN: So you're evolving into 7 the margin argument and the defense-in-depth because 8 of that? That's where that takes you. 4a 9 MR. ROISMAN: Precisely. 7 r 10 JUDGE RUBENSTEIN: In regard to defense-i 11 in-depth, for the general public, on the website, the 12 NRC maintains a glossary of technical terms and I 13 would like your comment how this obtains with your 14 approach. Defense-in-depth, they say, is a design and 15 operational philosophy with regard to nuclear 16 facilities that calls for multiple layers of 17 protection to prevent and mitigate accidents and 18 includes the use of controls, multiple physical 19 barriers to prevent release of radiation, redundant 20 and diverse key safety functions and emergency 21 response measures. 22 And in your exhibit 12, and this is sort 23 of a general question which goes to the thrust of your 24 talking about margin and defense-in-depth, how do you 25 see defense-in-depth in this particular focused NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 wwwrneargross.com
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154 I__ instance? Are you saying every little piece is 1
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.I.. 2 unalterable or is this a dynamic thing that one can do 3 in terms.of balancing prevention and mitigation and 4 the evolution over the last 40 years and methodology 5 says I was excessively conservative here, when I 6 originally did the calculation, but now in doing some 7 other calculations I can give us this margin? You're 8 saying one can never give up margin?
9 MR. ROISMAN: No, not at all. In fact, 10 the example you give illustrates our point exactly. 11 The knowledge about NPSH uncertainty, in particular, 12 has been greater in recent years. It wasn't until the 13 Spanish reactor had its experience that it even sort 14 of came on the view screen, I'm sorry, Swedish -- I 15 get all these foreign countries mixed up. They're 16 part of the coalition. 17 Anyway, the fact is that this is an 18 example where previous assumptions about we don't need 19 to worry about this turn out to have been wrong and 20 previous conservatism now turn out not to have been 21 conservative enough, perhaps. And this is the issue 22 that the ACRS has been struggling with and the NRC has 23 been struggling with. But in general, it's not our 24 position that more knowledge that gives you a basis to 25 say gee, this car really could run at 60 miles an hour NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 www.nealqA7ss.cOm
155 1 and be .just as safe as it was when -it.ran at-55, 2 aren't perfectly appropriate to do. Containment over K-i1. ... 3 pressure, used as a way to deal with NPSH isn't one of 4 those examples. 5 JUDGE RUBENSTEIN: The last, recognizing 6 I'm limited by time too -- 7 MR. ROISMAN: That's not my ruling. 8 JUDGE RUBENSTEIN: No, it's ours. 9 (Laughter.) 10 JUDGE RUBENSTEIN: How do you see defense-I an 11 in-depth, via-a-vis a regulation or requirement as 12 opposed to a philosophy? This is key to a lot of the 13 underlying thinking on your contentions. 14 MR. ROISMAN: If the question is do I
.1( 15 think that you can have a defense-in-depth requirement 16 that goes beyond a regulatory requirement, if that's 17 the question you're asking --
18 JUDGE RUBENSTEIN: That's not the i 19 question, the question is what is the regulatory 20 authority of a philosophy such as defense-in-depth? 21 MR. ROISMAN: All right, I'm going to 22 invoke, if I may -- I'd like to answer that, but I 23 think that that is outside the scope of this hearing 24 and if we challenged it or if Entergy challenged it it .iIh 25 would be rejected as bringing in a Commission policy NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 wwwneakgross.com
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156 1 which is generic. go: ( 2 I happen to think that the concept of 3 defense-in-depth is a bargain that was made with the 4 American public when they decided to do civilian 5 nuclear reactors and that its standing has the status 6 of a regulation from its duration of existence. 7 JUDGE RUBENSTEIN: Interesting opinion. 8 JUDGE KARLIN: Any other questions? 9 JUDGE BARATTA: You continually say this 10 is not conservative, is that based upon your expert's 11 opinion at this point or can you point to some very 12 specific places where you know that the number should 13 be this and it's that at this point. I'm-trying to go 14 to the merits, I'm trying to understand. 15 MR. ROISMAN: I understand that. I think 16 when we see that it's not conservative, our position 17 is that it's never conservative to set any number when 18 you don't have the ability to bound the measure of the 19 uncertainty. In other words, if we don't know what 20 the upper number is and we don't know what the lower 21 number is, any number that's picked is apparently not 22 conservative because the concept of conservative 23 starts with bounding the uncertainty. If you can 24 bound the uncertainty, then you can say I'm going to 25 bias towards the number that will give me the greatest NEAL R. GROSS 4 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. WASHINGTON. D.C. 20005-3701 wwwrnealrgross.xom (202) 234-4433 I
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157 1 amount of safety. That would be-conservative from ( 2 that perspective. Or if you were trying to give the 3 reactor as much leeway, you might call it conservative 4 the other way. 5 So our>:; position is that these 6 uncertainties defy the ability to create an adequate-7 boundary. So we're not trying to criticize a number 8 and say well, the number was 6, it should have been 8. 9 We're saying that this is not a topic on which a 10 number should have been used at all and when you say 11 "this" we mean try and take containment over pressure 12 as a credit that deal with the NPSH problem. 13 JUDGE BARATTA: So than you don't put much 14 faith in the role'of anything in determining whether 15 a number is conservative or not? Is that correct? 16 MR. ROISMAN: Can you just wait a second? 17 (Mr. Roisman confers.) 18 MR. ROISMAN: If I may, I would like to 19 modify my answer to more accurately reflect the 20 technical position that we're taking. We think that 21 today without uprate and without taking containment 22 over pressure, there is sufficient conservatism 23 because we have the -- 24 MR. WACHTER: Time. 25 MR. ROISMAN: May I finish? NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.' (202) 234-4433 WASHINGTON. D.C. 20005-3701 wwwmnealgros.com
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158 Yc., rat I Finish yodur sentence. 1 JUDGE KARLIN: 2 Time.
- 4. . 3 MR. ROISMAN:. Because we have this safety 4 margin that's there, provided by the fact that there i
5 will be some containment 6ver pressure without taking 6 credit for it. Uncertainties are something entirely 7 different. Uncertainties have to do with the 8 uncertainty with whether or not we know how much the 9 containment over pressure will be and uncertainty with 10 knowing how much NPSH will be degraded. 11 JUDGE KARLIN: Thank you, Mr. Roisman. 12 Mr. Silberg, 15 minutes? 13 MR. SIL3ERG: Thank you. Let me work 14 backwards a little bit. I think the Department has 15 said it's never conservative to set any number if you 16 can't bound the uncertainties and in their petition 17 they said that the calculation 0808 which is kind of 18 the centerpiece here was not conservative. They never 19 really said why it wasn't conservative, but in our 20 response we identified exactly where we set forth the 21 conservatism. On page 27 of our brief, we cite to an 22 RAI response which identifies all of the conservatism. 23 Those conservatism, Your Honor, bound the uncertainty. 24 The only response that the Department gave to that 25 citation was in footnote 13 on page 27 of the reply C. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE, N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 wwwwieakgross.com i . .. . . .
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159 1 which they said we don't think the&Board should give I. 2 any weight or should give reduced weight to that I .3 because the information is proprietary. 4 Well, the fact is the Department had 5 access to that information. If they don't like the !I* 6 fact of proprietary treatment of information they're 7 challenging the Commission's regulations to 2.790 and 8 now 3.390. So the issue is we have, in fact, on the 9 record with information that they have in their 10 possession identified why the uncertainties, if there 11 are any, are bounded. 12 So I believe that their basic premise is 13 completely undercut by the information on the record. 14 The idea that they have an ironclad obligation to look 15 at the information, but can then disregard that 16 information in their response and put in something 17 which is out of date, irrelevant or wrong, is simply 18 turning the licensing process on its head. 19 With respect to defense-in-depth, defense-20 in-depth is -- 21 JUDGE KARLIN: May I ask with regard to 22 that proprietary issue in the footnote, I seem to 23 remember that and I thought they were concerned 24 because there were some redactions that were 25 proprietary, somehow made it difficult for them to C (202) 234-4433 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. WASHINGTON. D.C. 20005-3701 v~wwwargross.corn
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(2I . -! 2 MR. SILBERG: The redactions are in the 3 information which is in the public record. They, 4 however, have access to the unredacted versions. They 5 have always had that. They have full access to every 6 document in the plant under existing policies. 7 JUDGE KARLIN: But are they able to -- I 8 mean unless it's perhaps under protected order, I f 0 1
,I 9 they're able to use that or assert that in the i
I 10 proceeding? CI IL V 11 MR. SILBERG: Yes, they are and they have 12 full right to assert that. Obviously, they can't put 13 it out in the public format, but they could make 14 proprietary filings to this Board, the same as people 15 do in any other proceeding. 16 JUDGE KARLIN: Right. 17 MR. SILBERG: With respect to defense-in-18 depth, it is a regulatory philosophy. I don't believe 19 it is enshrined in the regulation. To that extent, it 20 is different than another regulatory philosophy as low 21 as reasonably achievable which is enshrined in the I 22 regulation. 23 So I think to raise defense-in-depth to 24 this high pedestal that you can never change, you can
- 25 never remove margin that's put in is simply without C ,NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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i 161 1 either legal or policy basis.' To say you can't reduce \<y} *s
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C : 2 margin that once it's in there, it's sacrosanct really 3 would be counter productive. Then you would have TI.. ` 4 people saying I'm not going to put that margin in 5 there because-if:I do, then I'll never be able to use 6 it down the road. It just isn't what the law says. 7 With respect to -- 8 JUDGE KARLIN: Mr. Silberg, on that point, 9 I looked for the words defense-in-depth in the regs 10 and I didn't find it, but they reference in contention 11 1, part 50, appendix A, 35 and 38, which talk about 12 redundancies and single failures and that's also 13 referenced in some of the other general design 14 criteria. Is that where defense-in-depth could be 15 alleged to be part of the reg? 16 MR. SILBERG: Well, the term which is -- 17 seems to have taken on a life of its own is not. I 18 was going to note that while the contention itself 19 refers to the GDC -- although that actually may be 20 contended -- 21 JUDGE KARLIN: The first contention. 22 JUDGE RUBENSTEIN: The GDC is 35 and 38 in 23 the first. 24 MR. SILBERG: Right, and I will discuss 25 that in the context of contention 1, but they didn't NEAL R. GROSS C. COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. II (202) 234.4433 WASHINGTON. D.C. 20005.3701 wwwneakgross.com
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- 1 raise that in this contention. They'-do in this 2 contention talk about significant hazards
( I.... 3 consideration in this contention, but that obviously 4 is not a basis for a contention as the Commission said 5 in the Harris decision which we cite in our brief. 6 But the idea that the analogy to the car 7 running at 75 miles an hour, we in fact, have a 8 methodology that we have used for many, many years 9 that is part of the current licensing basis. That 10 methodology is set forth in the calculation which they 11 now attack. To the extent that they're attacking the 12 assumptions in the calculation, they never set forth 13 in their document what it is they're attacking. If 14 you look at the list of uncertainties that they start 15 with on page 24 of their pleading and then they 16 restate and add other items to it in their reply, none 17 of those relate to the calculation. 18 To the extent that there are statements 19 that they take from the calculation, they say, for 20 instance, in criticizing some of the tests of the 21 pump, and what they do there is they take a snippet 22 from that document, the calculation, the appendix to 23 the calculation, and say you haven't considered pump 24 flow. You haven't considered head drop, the original 25 data don't show. But what they ignore is the fact NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE, N.W. (202) 2344433 WASHINGTON. D.C. 20005.3701 wwwxneargrass.c= i * .
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163 1 that the very document that they cite develops that 2 data, not from the original test data which goes back (.. 3 to the 1960s, but from everything, that's happened 4 since then. This again is one of those examples of 5 ironclad obligation. You can't take a snippet out of 6 a document and ignore the document's conclusion. 7 So in many cases, what they're citing to 8 are statements in this document which are true 9 statements, but which reflect the starting part of the 10 analysis and they simply don't reflect the end part of 11 the analysis which is the pumps are acceptable. 12 JUDGE RUBENSTEIN: So it's your view that 13 VY 080 contains data and it's an analysis so that any 14 contentions which deals with an omission, you're 15 saying that the data is not omitted? 16 MR. SILBERG: That's correct, and it may 17 not all be in that particular document, but in RAIs 18 where we have developed and provided additional 19 information to the staff, we're not aware of any 20 information which has been omitted. 21 There are cases in their reply where they 22 list a series of the uncertainties and they simply 23 don't identify what it is that's missing. And I think 24 we'll get into that on some of the other contentions. 25 Let me go back to the contention itself. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 vwwwxealgross.com I
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164 The contention, if you read it, I think is really so 1 2 uncertain and so amorphous as to defy a precise issue,
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3 unless.one reads it in connection with the bases. And 4 when you read it in connection with the bases, it 5 doesn't -- it is not an admissible issue. For 6 instance, basis one says there's no reliable evidence 7 of the magnitude of the impact of strainer and debris 8 losses on pressure at ECCS pumps in the post-LOCA 9 world. We have provided, as we said before, the 10 bounding uncertainties which we think expressly show 11 that whatever uncertainties there are have been 12 conservatively bounded. 13 DPS says that the calculation is not 14 conservative. Then they say in their reply at page 31 15 and 32 that they didn't argue that the calculation was 16 nonconservative. We're not exactly sure what it is 17 that they're arguing at what point, but it's clear 18 that the calculation, together with the other 19 information on the docket, explains why what we are 20 doing bounds all the conditions. 21 The second basis says without information 22 to bound the uncertainties, no reliable basis, there's 23 no reliable basis to justify using containment over 24 pressure or unquantifiable pressure losses. That 25 statement purports to be based on excerpts from I (.. NEAL R. GROSS COu~r REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 wwwneal=msn
165 1 transcripts -of the Advisory -Committee on Reactor ( ,- 2 Safeguards, but those transcripts don't support this 3 point either. 4 If one looks at the transcript, you can 5 , easily discern that these are pressurized water 6 reactor issues and not boiling water reactor issues. 7 If you look on transcript page 344, their Exhibit 10, 8 says this was an issue for PWRs and this hearing is to 9 resolve this issue. There's a statement at transcript 10 : 381 that says there is already a BWR solution. There 11 are also several statements that say this is a plant-12 specific issue. 13 So you can't take this ACRS excerpt that 14 they've put it in, not read it in connection with the 15 entire transcript and come up with the conclusion that 16 in this situation or BWRs, in general, or Vermont 17 Yankee, in particular, there is an issue. There are 18 other statements that are totally taken out of context 19 that we think inappropriate. For instance, in their 20 petition at page 22, he says that the model that was 21 used was discredited by the Swedish reactor. There's 22 no indication that Vermont Yankee uses that model. We 23 don't. 24 And strangely enough, the Department when 25 they quote, omits the portion of the transcript the NEAL R. GROSS (... -COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE. N.W. (202) 234-4433 WASFUNGTON. D.C. 20005-3701 vwwwxealrgross.orn
166 1 very next line where the-speaker says that there have (. . 2 been improvements in the model Barsebeck and "we have 3 compared our model against the Barsebeck model, and 4 shown that it's adequately conservative." They simply 5 don't reflect the closure of the events where all they 6 do is pick out the problems. This isn't a question of 7 weighing. We don't need a hearing to decide these 8 events. You look at the very documents and they don't 9 support their contentions.
- 10. Another example is the Barsebeck event was 11 based on a particular type of insulation which the 12 transcript says it's not typically used in the United 13 States. So they're taking a lot of statements out of 14 context which in the documents themselves don't apply.
15 JUDGE BARATTA: But let me interrupt you 16 here. Is it not true that the NRC put forth as a 17 generic safety issue for BWRs the question of strainer 18 clog? 19 MR. SILBERG: I'm sorry, I didn't hear. 20 JUDGE BARATTA: Is it not true though that
.:1 the NRC put forth as a generic safety issue the issue 21 22 of strainer clogging for BWRs?
23 MR. SILBERG: Yes, and we have made 24 modifications to that which are on the record and we 25 believe that we have adequately addressed that issue. (I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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167 1 We have probably the largest strayers in the world in the torus at Vermont Yankee, comparable to the size of I, fI, <If- 2 3 the torus. We don't think that there is an issue for 4 us. S' 1 There may be generic issues. We think we 6 have resolved them on our docket. 7 JUDGE BARATTA: My point in raising that 8 was that you seem to be saying that the points that 9 were brought forth while not specifically applicable 10 because they are PWR issues that were raised in the SI 11 transcript, but the question of strainer clogging is 12 applicable to both or at that time was applicable to 13 both BWRs and PWRs.
.. 14 MR. SILBERG: Right, but they were citing 15 that transcript for the principle that the models are 16 no good. And what I'm doing by quoting the rest of 17 the transcript is to say that support just isn't 18 there. And if you look at other things that they're 19 alleging, they're either unsupported or dealt with in 20 the very document that they cite.
21 They cite, for instance, that the pump 22 tests, again this is going back to the calculation, 23 and they cite attachment 5 that they were only tested 24 to a limited flow rate. They never say what an 25 appropriate flow rate was or why that was limited or IC NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 wwwneakgross.com
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168 1 how that limit has any effect at all on the
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( t--i7 'i \,_ .1 K_ _11 They say that there were no head drop I 3
.2i 4 specifications on the original curves, but they ignore 5 the rest of the report which provides that very 6 information. So it's not a question again of weighing 7 the evidence or having a hearing to determine the 8 evidence, but if one looks at their own documents it 9 simply doesn't support the quote uncertainties that 10 they say are there. And it certainly doesn't address i 11 the conservatism which we have put on the record which 12 we believe have bounded those uncertainties.
13 I would also note that in the reply r-I .-. .- 14 they've introduced an entirely new set of documents 15 which they claim to support their charges. There's a 16 question as to the timeliness. We think also that 17 those documents don't support the kinds of things that 18 they allege they are supporting. For instance, they 19 talk about calculations of clogging. They refer to 20 documents on paint chips and they say they were 21 ignored, but they ignore a letter on the docket which 2 22 specifically deals with that. They talk about generic 23 studies which are PWR studies. Obviously, this is a 24 BWR. They talk about chemical reactions and this is
*;D1-:;' but don't note the 25 calcium silicate with boron, C. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS
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169 1 difference in water chemistry between PWRs and BWRs or 2 the presence of calcium silicate in our reactor. They 3 talk about a zinc reaction, but they again ignore the 4 fact that it's a PWR issue because it's a reaction 5 between boron which we don't use as opposed to sodium 6 borate. 7 They talk about concrete dust and it's 8 clogging up the strainer in a reaction with boric (: 9 acid. Again, not reflecting the fact that this is not
.10 something that we use.
*1 11 The issue here really is is there a basis?
12 And we believe that there isn't. The additional 13 design margin, we're not taking anything away. We 14 still have defense-in-depth, if that were a \(. 15 regulation, which it isn't, we still have particularly 16 in the LOCA situation where you always have over 17 pressure at the beginning of event, it's not a 18 question of having to generate it, simply are concerns
'19 which are dealt with with the information that's on 20 the record and we would suggest that there is not a 21 specific contention, not a supported contention and 22 not a contention with basis.
23 MR. WACHTER: Time is up. 24 JUDGE KARLIN: Thank you, Mr. Silberg. 25 Ms. Poole, how can you help us here? NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 www.neakgros.com
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. 1 m MS. POOLE: t Well, the Staff wanted to I ... 2 raise an issue that's raised with respect to --
I, .i-, 3 JUDGE KARLIN: I think you have to put 4 your microphone on top of your 3-ring binder to get it close enough. 6 MS. POOLE: Ir l lean over my binder. 7 How's that? 8 JUDGE KARLIN: Okay. 9 MS. POOLE: We'd like to raise an issue 10 first that is brought up with respect to this 11 contention, also some others involving the no 12 significant hazards consideration determination. If 13 it's all right with the Board, we'd like to discuss 14 that briefly. 15 Particularly, in its reply, the State 16 argues that the Atomic Energy Act requires a hearing 17 whenever a proposed amendment involves a significant 18 hazards consideration. This is not a correct 19 statement of the law. What the Atomic Energy Act says 20 in Section 189(a) (2)(a) is "in relevant part, the 21 Commission may issue and make immediately effective 22 any amendment to an operating license upon a 23 determination by the Commission that such amendment 24 involves no significant hazards consideration. 25 Notwithstanding the pendency before the Commission of NEAL R. GROSS
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171 1 a request forbhearing from-any person. Such amendment C.1 2 3 may be issued and made immediately effective advance of the holding and completion of any required in 4 hearing." 5 As stated in our answer, the Staff has not 6 made a proposed or' final no significant hazards 7 consideration determination which means that we have 8 not made the findings necessary to issue any amendment 9 during the pendency of any hearing granted in K-, 10 connection with this amendment request. 11 In the absence of such a determination, 12 the Commission would not issue any license amendment 13 until the completion of any prior hearing. 14 In addition, the Department misapprehends 15 the cases cited by and on this point. In St. Luis 16 Obispo Mothers for Peace, the Court found that the NRC 17 failed to comply with its regulations in denying 18 Petitioners a hearing prior to making the license 19 amendments at issue effective. The Court noted that 20 a hearing would have been granted in that case. The 21 error lay in issuing the amendment prior to holding a 22 hearing. The Staff doesn't propose to do such a thing 23 in this case. 24 In addition, the Three Mile Island case 25 referenced by the State is inapposite to the issue. NEAL R. GROSS C. COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE, N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 wwwxear*grossxcom _, ........ ..I. .. ... . .
172 1 The-;Petitioners in-that case argued that the restart TI-i I - T I-
. i 2 proceeding at issue was a proceeding for amending the 3 license within the Atomic Energy Act, within the 4 meaning of the Atomic Energy Act, Section 189(a) and that they were persons whose interests stood to be 6 *affected by that proceeding.
7 The Court, however, held that because the 8 order at issue did not purport to affect the license 9 amendment it did not and would not reach the issue of 10 1.5 compliance with Section 189(a). tH 11 The Kelly v. Selin case is also off point. 12 The Court in that case held that there was no 13 licensing decision being made subject to Section i 14 189(a). Therefore, none of these three cases stands 15 for the proposition put forth by the Applicant. 16 So I just wanted to reiterate that point 17 to note that the no significant hazards issue cannot 18 form a basis for a contention in this proceeding. 19 JUDGE KARLIN: Could you address the issue 20 I spoke with with the State a bit? The Staff took the 21 position that you did not object to admissability of 22 contention 2, basis 3 and on page 16, I guess of your 23 brief you have these bullets of uncertainties, I think 24 it is. Now we have an additional set of 25 uncertainties. If we were to admit this contention Cd,.' NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealigross.com 11
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173 1 and to follow-your-advice, what would your advice be 2 with regard to these additional uncertainties that
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\K-,-.% have now been identified. 3 4 JUDGE RUBENSTEIN: And perhaps what the 5 contention itself would be in terms of scope. 6 JUDGE KARLIN: Yes. 7 MS. POOLE: Absolutely. As we noted in 8 our pleadings, the eight uncertainties set forth in 9 basis 3 in the Staff's view, limit and define the 10 scope of this contention. As I stated earlier, it's 11 the Staff's view that the long-standing Commission 12 case law holds that the reach of a contention 13 necessarily hinges upon its terms coupled with its 14 bases. That's the Seabrook proceeding. 15 With respect to the additional exhibits 16 and the additional uncertainties that are set forth in 17 the reply, including Exhibit 30 and 31,.DPS provides 18 a list of uncertainties which have not been addressed 19 by the Applicant, it contends. In addition to the 20 eight uncertainties sett forth in its petition, the 21 admission of which the Staff does not oppose, these 22 number of additional uncertainties which rely heavily 23 on Exhibit 30 we feel constitute a late-filed revision 24 to the petition. i 25 The Department hasn't addressed the late I
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174 1 -filing crite~ria of Section 2.309(f) (2) or discussed 2 why these new exhibits and these associated arguments 3 were not raised at the time of the initial petition. 4 We think that these additional issues would broaden 5 the scope of the contention as the Staff would accept 6 its admission. And therefore, we think that the 7 Licensing Board shouldn't accept those -- 8 JUDGE KARLIN: So it's sort of fairness, I.. 9 late filed issue which is to say the other parties 10 have not had a chance to respond and it was not in the 11 initial contention? 12 MS. POOLE: That's correct. 13 JUDGE KARLIN: Well, that's kind of why I 14 was asking for a response here, although -- and the 15 other thing, the point of the contention rule is it 16 not, is to give us a focused issue that we -- a 17 concrete issue, not to play technical "gotcha"l but to 18 really make sure that the proceeding is ultimately 19 focused and doesn't go off on a wild goose chase 20 somewhere. Do you think that -- in a substantive 21 matter, have you had a chance to look at those 22 additional bullets? 23 MS. POOLE: No, as a substantive matter, 24 we have not. 25 JUDGE RUBENSTEIN:. On the material you had NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE. N.W. (202) 2344433 WASHINGTON, D.C. 20005-3701 wwwrneaIrgross wn i I T t.
175 1 available, let'S go back to the clarity of your not 2 challenge to the admissability of the contention and i . 3 give us a little insight into what you think the 4 genuine issue is. 5 MS. POOLE: I think that we thought that 6 the uncertainties cited in the petition in this case, 7 the eight uncertainties cited went to the 8 acceptability of the NPSH calculation in the 9 application and as such they constituted a 10 sufficiently particularized basis with respect to a 11 challenge to the calculation. 12 JUDGE BARATTA: In that regard, I may be 13 recollecting this wrong and maybe I could ask you a 14 little bit about the history, but for some reason I 15 thought that the question of strainer clogging in BPIRs 16 had been resolved, that that no longer was an issue. 17 Am I remembering that wrong? 18 MS. POOLE: That is correct. If you give 19 me one moment to consult with my expert here. 20 JUDGE BARATTA: Okay. 21 (Pause.) 22 MS. POOLE: In response to your question, 23 Bulletin 9606 addressed the strainer clogging issue 24 for BWRs and in response to that there is a December 25 1999 letter and I don't have it with me to provide to ( NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. KW. (202) 234-4433 WASHINGTON, D.C. 200053701 wwweakross con V.\.
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176 1 the parties or the Board in which Vermont Yankee
. r - 2 informed the Staff of its closure of the issues raised
,I .,
.3 -in the bulletin. That was when we learned of the I 4" I."
4 large, the strainer -- 5 JUDGE RUBENSTEIN: However, not to talk 6 about the merits, Ms. Poole, but the contribution from 7 the debris strainer blockage, does the Staff have a 8 position on the methodology that the licensee uses? 9 In other words, have they integrated the resolution of 10 the generic safety issue into it? I take it that you 11 believe that the uncertainties have either not been 12 addressed or addressed inadequately as derived from 13 the debris strainer problem? 14 This goes to the heart of -- 15 MS. POOLE: I think our position is that 16 the Applicant used approved methods to resolve the 17 uncertainties that were raised in the generic issue. 18 JUDGE BARATTA: That's what I was trying 19 to get at that the issue was resolved and you've 20 already accepted the method by which they address that 21 resolution. 22 MS. POOLE: That's correct. 23 JUDGE BARATTA: Are these additional 24 uncertainties that go beyond that? That's where I'm I . 25 having trouble understanding, if it's a resolved NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 wwwneakgrss.com
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177 issue; why are these uncertainties not quantified? *I.$;- 2 And if you have an uncertainty, as long as you
.3 quantify them, bound them in some way or something 4 like that. But could you maybe go into a little bit 5 of that explanation?
6 MS. POOLE: Let me take one moment, 7 please.
- I--
8 (Pause.) 9 MS. POOLE: In answer to your question, in 10 looking back at the bases, they don't involve the 11 strainer issue, they involve pumps and available 12 NPSHs. We think it's two different beasts. 13 JUDGE BARATTA: Okay, thank you. 14 JUDGE KARLIN: Anything else? 15 MS. POOLE: No, nothing further for us on 16 this contention. Thank you. 17 JUDGE KARLIN: Thank you. We're going to 18 proceed with the next contention. The New England 19 Coalition did not present this contention, so they do 20 not argue on it. They will argue certainly on their 21 contentions and they have seven of them, so we're 22 looking forward to that. But in the meantime, we'll 23 proceed to the next contention 4 by the State. 24 Again, with regard to reserving rebuttal, 25 just keep on going. No rebuttal if we run out. C.- NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHOOE ISLAND AVE. N.W. (202) 234-4433 WASFUNGTON. D.C. 20005-3701 vw nealrgross.com Y- . . .
178 i. i I
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-i1 MR. ROISMAN: Unless I get a rebuttal, if 2 I ask for it even if I do run out which I assume isn't I
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\, t I 3 -the case, so -- I have lots to say.
I 4 All right, with regard to contention 4 -- 5 MS. POOLE: I'm sorry, I'm very sorry. We 6 wanted to raise an issue. We weren't sure if we were 7 going to break before lunch and I apologize for 8 interrupting you. We had a question, a procedural 9 issue regarding presentation of arguments. We 10 discussed the matter with both Coalition and the 11 State, as well as the Applicant and in certain 12 contentions certain attorneys prepared response to the 13 contentions and we wanted to know a clarification. 14 You had advised that you preferred a single attorney 15 speak for each participant and we had a couple of 16 situations where a different attorney prepared a 17 response to a contention. We understand the concern 18 about double teaming and we don't want to do that, 19 obviously. But we wondered if it would be acceptable 20 to the Licensing Board, provided that one attorney 21 presented a presentation on one contention, if we 22 could have multiple attorneys participate to the 23 extent that one attorney would participate as to one 24 contention. It might not be the same one every time. 25 None of the participants objected to our S. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 wwwneakgross.com K> - . -*.-{t ~:;
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% I 1 179 request in that regard.
. 2 MR. ROISMAN: Mr. Chairman, may I just say
( . V 3 one thing. It's correct the State does not object to 4 what the Staff has asked for, but we.do wish to state 5 that we believe that this would be a precedent:that 6 would be used throughout the hearing. 1 ADMINISTRATIVE JUDGE KARLIN: -- which is 2 Contention 4 by the State. 3 MR. ROISMAN: I just want to emphasize -- 4 ADMINISTRATIVE JUDGE KARLIN: And, again, 5 with regard to reserving a rebuttal, just keep on 6 going. No rebuttal if we run out. 7 MR. ROISMAN: Well, unless I get a 8- rebuttal if I ask for it even if I do run out, which 9 I assume isn't the case. I mean I got lots to say. 10 All right. With regard to Contention 4 -- 11 MS. POOLE: I'm sorry. I'm very sorry. 12 We wanted to raise an issue. We weren't sure if we 13 were going to break before lunch, and I apologize for 14 interrupting you. We had a question, a procedural 15 issue regarding presentation of arguments. We 16 discussed the matter with both the Coalition and the 17 State as well as the Applicant. In certain 18 contentions, certain attorneys prepared responses to 19 the contentions and we wanted to know a clarification. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 wwwneaIrgross.=
180 1f I - .- 1 You'had advised that you preferred a single attorney 2 speak for each participant, and we had a couple of \-~ it (I 3 situations where a different attorney prepared a 4 response to a contention. 5 We understand the concern about double 6 teaming and we don't want to do that, obviously, but 7 we wondered if it would be acceptable to the Licensing 8 Board provided that one attorney presented a 9 presentation on one contention if we could have 10 multiple attorneys participate to the extent that one 11 attorney would participate as to one contention and 12 that would be all, but it might not be the same one 13 every time. And none of the participants objected to 14 our request in that regard. 15 (Pause.) 16 MR. ROISMAN: Mr. Chairman, may I just say 17 one thing? It's correct the State does not object to 18 what the Staff has asked for, but we do wish to state 19 that we believe that this would be a precedent that 20 would be used throughout the hearing should there be 21 further hearings in that if a witness were called to 22 be cross examined, that one attorney could do that 23 cross examination and another witness could be called 24 and a different attorney could do that cross 25 examination. In other words -- NEAL R. GROSS (_,' COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 wwwmneaIrgross.con
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181 1 ADMINISTRATIVE JUDGE KARLIN: Right. t E1 :. 2 Right. 11\~.. 3 MR. ROISMAN: -- that as long as there's 4 no redundancy -- 5 ADMINISTRATIVE JUDGE KARLIN: No, I 6 understand. 7 MR. ROISMAN: -- and as long as that's 8 understood that we think that it would set a 9 precedent, which we think is an okay precedent, we 10 don't have any problem. 11 ADMINISTRATIVE JUDGE KARLIN: All right. 12 I appreciate that distinction. What I don't want to 13 have is three attorneys jumping one contention, two 14 contention, three contention and having other 15 participants, particularly the Coalition, having only 16 one attorney who can somehow be exhausted by a triple 17 team. For today I think we'll have -- we'll let one 18 attorney speak on one issue -- this is essentially 19 what Mr. Silberg raised before, but it's certainly not 20 a precedent with regard to any evidentiary hearing 21 where we would just really have one lawyer be handling 22 pretty much the whole thing. So, yes. 23 MS. POOLE: Thank you, Your Honor. 24 ADMINISTRATIVE JUDGE KARLIN: All right. 25 So now we're now on Contention 4. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005.3701 wvwneargross.ccn
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IF 182 1 MR. ROISMAN: Could you advise me when 2 you're considering breaking for lunch? I.I 3 ADMINISTRATIVE JUDGE KARLIN: After
- i 4 everyone gets finished with Contention 4.
5 MR. ROISMAN: Great. 6 ADMINISTRATIVE JUDGE KARLIN: So that 7 should be 45 minutes from now. 8 MR. ROISMAN: That's fine. Okay. I 9 didn't want to do my thing and give them an hour to 10 think about it. 11 With regard to this contention and the 12 other contentions, I heard what the Board said when we 13 had the telephone conference, so I have not taken the 14 Board back to portions of our pleadings, but many of 15 the issues that have been raised have been addressed 16 in our pleadings at different places, and so I hope 17 that sort of in rebuttal that the Board will go back 18 and look at particularly our reply with regard to 19 these issues. And that will apply here with regard to 20 Contention 4 as well. 21 The essence of Contention 4 is the human 22 factors, a generic problem, raised and made a central 23 issue in NRC lore by the TMI accident. Obviously, we 24 are not making any contention that says that what 25 happened at TMI is somehow or another substantively i ( NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 wwwjnealrgross.com i , - ' '* ; '. I . I .... . . . .. ,.. . ' - '." ." . . ...... . '.. *-'I-. ' -
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183 1 what we're concerned about happening here, but what we
.. ; ".. 2 are saying is that what TMI alerted the NRC and its 1\_ - ( ..
I n 3 licensees to was the danger that's presented when you 4 create problems that are inherently difficult for 5 humans to solve. 6 And our contention is that in this 7 particular example, namely the use of containment 8 over-pressure in the event of an accident, that the 9 Applicant currently has not addressed in its emergency 10 operating procedures any guidance to its operators on 11 how they are supposed to meet two conflicting goals. 12 One of those goals is to reduce containment pressure 13 to 2.5 PSIG as a way of reducing the ability of any 14 radiation that's inside containment from being pushed 15 outside containment by the pressure. So it reduces 16 the effect of any leaks that may be present. And at 17 the same time telling the same operator that for a 18 fairly long period of time, roughly 50 hours, the
- 19 operator is supposed to keep containment pressure up, 20 over 2.5, at varying degrees and varying amounts.
21 And there is -- this over pressure table 22 -- chart, I guess it is, that the Applicant has in its 23 application, it's since been modified, but it gives 24 you an idea that the containment over-pressure is not 25 a constant number. It's a number that is going to NEAL R. GROSS C S COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234.4433 WASHINGTON. D.C. 20005-3701 wwwnealrgross.com I . . . . . * .. . *. S. * - S. ** .* .
184 i, -1 vary over time and the need, which is shown on this 1/4 -i -. 2 chart in a series of steps, the need for containment
; :% 3 over-pressure to meet NPSH requirements is also 4 varying with time. So it's a fairly complicated --
5 ADMINISTRATIVE JUDGE KARLIN: Is that 6 document you're referring to your Exhibit 18? Seven 7 pages, Figure 4.6, over-pressure required for NPSH DBA 8 LOCA long-term? It's Exhibit to your -- 9 MR. ROISMAN: Yes. Yes, it is. Yes. 10 This one that I'm holding up may not -- as I said, one 11 of the things that has happened is that this VY 0808n 12 calculation has already been amended four times since 13 the application was filed. So this one may not be the 14 current version of what it's supposed to look like. 15 Conceptually, what it illustrates is that this is not 16 a simple task. 17 ADMINISTRATIVE JUDGE KARLIN: Well, 18 Entergy has responded to that, I think, by saying, 19 "Well, wait a second, there's this step-wise chart 20 that you referred to, but that's not an instruction to 21 the operators. It's not going to confuse the 22 operators at all, because in fact the operators -- 23 this is not something for instructing the operators." 24 ADMINISTRATIVE JUDGE RUBENSTEIN: Yes. 25 Let me add to that. Is it your contention that this C. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 wwwneafrgross.com
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185 1 is a situation which is abnormal or not similar to 2 what an operator does through simulator training at k\-i- ... ; 3 the Vermont Yankee simulator? 4 MR. ROISMAN: Well, when we look at the 5 EOP, and you'll notice I think it's in the Staff 6 answer that they give you the EOP, there's nothing in
.7 there to instruct the operator about. So the operator 8 doesn't have any instructions. If he went to 9 training, if we had an operator in here today and 10 showed him this chart and showed him the provision in 11 the EOP that says you're supposed to get containment 12 pressure down to 2.5 PSIG, he doesn't have any more 13 guidance beyond that to know, "How do I go about doing 14 that? How do I keep track of this and make sure that 15 I'm meeting two conflicting goals at the same time?"
16 ADMINISTRATIVE JUDGE RUBENSTEIN: I think 17 Entergy said something about that it's really not an 18 EOP item, that it's an operating item. And, again, is 19 it your contention that the nature of the beast of the 20 manipulation that an operator has to go through is 21 exceptional and can't be, for example, programmed into 22 the simulator and their training cannot be effectual? 23 I don't want to get into the merits, but I'm trying to 24 understand -- 25 MR. ROISMAN: Right. C.-. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 wwweafgross.com
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186 1 ADMINISTRATIVE JUDGE RUBENSTEIN: -- if 2 this is something exceptional in terms of change which Cr 3 cannot be addressed through training or 4 administratively. 5 MR. ROISMAN: Yes. iThe short answer is 6 yes, that is correct. And part of the reason for that 7 is -- you've seen it illustrated in this room this 8 morning. Look how difficult it was to just get the 9 speakers in this room calibrated so that everybody 10 could hear and all the microphones were working. This 11 is not simple stuff, and you're talking about an 12 operator who's operating under extreme stress. An 13 accident has happened that's causing all of these 14 events to have to take place. 15 Our position is you need -- they're called 16 emergency operating procedures. They don't have them. 17 There's no way for anybody, certainly not for the 18 State, to do any oversight to see whether or not if 19 they were confronted with this problem, now that they 20 have added to the operator's burden, the need to 21 retain containment over-pressure at discrete levels 22 for discrete periods of time, measured in minutes 23 sometimes, sometimes even in an hour or so, that they 24 need an EOP. And then if they produce an EOP, then 25 they would need to demonstrate that an operator could ( NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE, N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 wwwsneaIrgross.corn I' 1.
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187 1 actually be trained to follow that procedure and V... . { 2 effectively do what this chart says has to happen. 3 ADMINISTRATIVE JUDGE-RUBENSTEIN: Did you 4 just describe the relief you are seeking under this S contention? 6 MR. ROISMAN: I'm sorry? 7 ADMINISTRATIVE JUDGE RUBENSTEIN: Did you i. 8 just describe the relief you're seeking under this 9 contention? 10 MR. ROISMAN:,. Well, yes, except that we 11 don't know whether or not if at the end of the day 12 they made the changes necessary to the EOP and then 13 trained operators they would discover that they could I 14 do this or not. I mean if they told the operator in 15 the middle of the accident he had to also juggle five 16 balls in the air, I think we could all conclude he 17 probably can't do everything else he's got to do and 18 also keep five balls in the air. So we don't know 19 whether this exceeds the capacity. That's why it's a 20 human factors problem. And right now they're telling 21 us, "We're going to start taking credit for 22 containment over-pressure and we don't know that that 23 containment over-pressure can be maintained in a way 24 that it's required to be maintained." And if it 25 doesn't work, the ECCS pumps might fail, and we're L NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 wwncaegross.com
188 1 talking about something more than just an
.-. (2 inconvenience.
3 ADMINISTRATIVE JUDGE RUBENSTEIN: Again, 4 it's the opinion of your technical counselor that this 5 is an extraordinary change in terms of procedures? 6 MR. ROISMAN: Judge Rubenstein, I think 7 what's extraordinary is having the operator control 8 the pressure in the way that the chart we're talking 9 about expects him to do it. And Entergy appears to 10 have answered us with regard to this contention by 11 saying they don't intend to have anything special in 12 their EOP, that they're not amending their EOPs to 13 address the issue. That's the problem. 14 ADMINISTRATIVE JUDGE KARLIN: And that's 15 my question. Maybe we're using the wrong word. 16 They're not going to amend their EOP, but they're 17 going to amend something else. It does seem like what 18 is being asked for here is a change, that now they're 19 requesting to have credit for over-pressure, for the 20 maintenance of over-pressure. So up to this point, 21 historically, operators have not dealt with over-22 pressure. Now they're going to be asked to deal with 23 over-pressure. Presumably, there's a document which 24 will reflect that in some way, but it's apparently not 25 going to be an EOP. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS
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189 i 1 MR. ROISMAN: The point we make is-that it 2 should be in the EOP. If it's not in the EOP, it 3 should be here in front of the Board for review. The 4 contention is there's a human problem here. 5 ADMINISTRATIVE JUDGE KARLIN: Well, you're 6 saying there would be confusion created when they -- 7 MR. ROISMAN: Correct. 8 ADMINISTRATIVE JUDGE KARLIN: -- have to 9 both relieve the pressure and maintain pressure. 10 MR. ROISMAN: Right. And if Entergy has 11 a substantive answer to that -- 12 MR. WACHTER: Ten minutes. 13 MR. ROISMAN: -- then we would take a look 14 at that, we would evaluate it. At this moment, I mean 15 another way to look at it -- if the point that you're 16 making is, well, maybe they didn't do it in the EOP 17 but they might do it someplace else, then another way 18 to look at the contention is the application's 19 incomplete because they haven't submitted anything 20 that tells us how they're going to deal with this 21 problem that the operator's going to face. 22 ADMINISTRATIVE JUDGE KARLIN: Well, I 23 expect they're going to address that. I just want to 24 make sure you address it. 25 MR. ROISMAN: Okay. All right. And if Q. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234433 WASHINGTON. D.C. 20005-3701 w.neahross.com
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190 I- . 1 there are no more questions, I'll reserve. f~ ( i-.. 2 ADMINISTRATIVE JUDGE KARLIN: Okay. Fine. I' .I. 3 Thank you. 4 MR. ROSINSKI: My name is Doug Rosinski, 5 and I'll represent Entergy on this contention. 6 ADMINISTRATIVE JUDGE KARLIN: Rosinski? 7 MR. ROSINSKI: Rosinski, yes. 8 ADMINISTRATIVE JUDGE KARLIN: Okay. Thank 9 you. 10 MR. ROSINSKI: As a former certified 11 senior reactor operator on BWR plants of similar 12 vintage to Vermont Yankee, I'm pleased to inform Mr. 13 Roisman that the current emergency operating 14 procedures for Vermont Yankee do contain a chart of 15 containment over-pressure. The Vermont Yankee 16 operators are currently trained to use these charts, 17 and I will describe how they're trained to use these 18 charts. And there are no changes needed to the 19 emergency operating procedures to maintain the i 20 necessary containment over-pressure that Entergy has 21 proposed. And I will use this as a demonstration. 22 I just want to be clear, Mr. Roisman has 23 said that we do not have this information. It is in 24 the current emergency operating procedures. Let me 25 describe these graphs, and I do have copies if the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 wwwmakgrssscor JI.. . .. .--: - , , . -. : .: , . . I
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191 t 1 Board would like me to provide t with copies. Cbl.
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2 ADMINISTRATIVE JUDGE KARLIN: Are you
. r; 3 proposing to enter this as some sort of exhibit or
.1 4 just for demonstrative purposes?
5 MR. `-ROSINSKI: No. These are just 6 demonstrative to make it easier to follow the 7 discussion. 8 ADMINISTRATIVE JUDGE KARLIN: Did you 9 attach this to your response, to your answer to the 10 contentions? 11 MR. ROSINSKI: No, we did not. 12 ADMINISTRATIVE JUDGE KARLIN: Well, no 13 objections. Yes, we'll use it as demonstrative 14 information. 15 MR. ROISMAN: Excuse me. I didn't say 16 there was no objection. 17 ADMINISTRATIVE JUDGE KARLIN: Any 18 objections? 19 MR. ROISMAN: Yes. We pointed out in our 20 reply there is no evidence in this record, other than 21 the evidence that was submitted by Entergy, and we 4 22 object to any reference to any document that we didn't 23 submit as being evidentiary relevant in any way to the 24 questions that are before us. Because they had an 25 opportunity, they could have -- now, if they would NEAL R. GROSS N. COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005.3701 swwneaIrgrs.cor I . . .-
192 1 like to file a later filed request, they can do that. 2 But right now what we have is a record in which a (. 3 bunch of lawyers -- and now we have another lawyer who 4 used to be an operator at a nuclear reactor, he's 5 still just a lawyer in this hearing -- telling us a 6 bunch of facts versus I've got an expert who tells you 7 what the facts are and then he supports it with 8 documents that he attaches. I don't think it's fair 9 or appropriate. 10 ADMINISTRATIVE JUDGE KARLIN: Well, 11 certainly, the attorney speaking for Entergy is not 12 here to testify, and he's speaking as an attorney and 13 we don't want to hear anything about his personal 14 experience and he's not, I don't think, offering that 15 at the moment. What we try to focus on is the 16 document itself. Was that document in the record, 17 publicly available? 18 MR. ROSINSKI: The document is the current 19 emergency operating procedures at the Plant that are 20 available to the State at any time on a permanent 21 basis. They have access to these documents. It is, 22 in our opinion, part of the documents that they had 23 their iron clad obligation to review before they made 24 allegations that information was not available to the 25 operators. Again, this is just a demonstrative. I C NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON. D.C. 20005.3701 wwwnealrgraSs.coM
193 1 can provide the information without.the demonstrative 2 if it's easier for the Board. i -H 3 ADMINISTRATIVE JUDGE KARLIN: I think 4-.. we'll just go without the document. Again, you're not 5 to testifysto: anything, but as an attorney you can 6 make representations as an attorney, but they're not 7 going to be evidence in this case. 8 MR. ROSINSKI: Yes, Your Honor, of course, 9 And I just want to clarify, we did cite the emergency 10 operating procedures in our answers, and, again, they 11 are available and part of the documentation of the 12 operators' training and what the operators have 13 currently available to them, which is the point of 14 what I heard Mr. Roisman talking about earlier. 15 MR. ROISMAN: Mr. Chairman, I just want to 16 be clear on this point, though. The fact that they 17 may have cited a bunch of documents and didn't attach 18 them is legally irrelevant to whether or not the -- I 19 mean you've heard today, and I think you're about to 20 hear from this lawyer, you've heard from other lawyers 21 in the room, their view of what documents that you 22 don't have in front of you say. And if they thought 23 that they were important, I think they needed to show 24 you. We've given some instances here where they told 25 you things were so, and when we showed you what it (7 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. II 12021 2344433 WASHINGTON. D.C. 20005-3701 www.nealrgross.com II --- - I .. .. _ , __ . . . I.,.
194 1 was, it turned out it!7'wasn't quite the way they
,,C:., 2 pictured it. So I don't think there's any evidentiary
.k 3 basis to do this absent an applicant, which they're 4 free to have done, coming in and saying, "Okay, here's 5 our application or here's the stuff that we say shows 6 that what you asserted was wrong." But absent that, 7 I don't think that there's an evidentiary basis for 8 it, and I just want to be clear that that's our 9 position with regard to that.
10 ADMINISTRATIVE JUDGE BARETTA: But, Mr. 11 Roisman, you also have that iron clad obligation that 12 anything that's available in the public record that 13 you are assumed to have looked at. And, apparently, 14 this is available in the public record. 15 MR. ROISMAN: This is not a public record 16 document. It is available in the sense that you go 17 down to the Plant if you're Mr. Sherman and take a 18 look at it, but my point is not that we didn't look at 19 it -- 20 ADMINISTRATIVE JUDGE BARETTA: But you 21 allege that it was not in the EOPs and apparently it 22 is. 23 MR. ROISMAN: No. That's exactly the 24 problem, Doctor. 25 ADMINISTRATIVE JUDGE BARETTA: That seems NEAL R. GROSS (I COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE. N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 ww.weaicgoss.cox ,i . , t .. .I.. . .. . *- * -. . . : . .:: ............
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195 1 to be a deficiency3. , C.'. -, I 2 MR. ROISMAN: If the EOP were here and 3 they had submitted it, we could then argue about 4 whether or not what they say.in there is or is not in 5 there; I can cite you to an RAI, which we did attach 6 7 ADMINISTRATIVE JUDGE KARLIN: Wait a 8 second. The question I'm getting from this is this is 9 not part of the licensing application. It's not in 10 that record. It's available down at the Plant, or is 11 it? 12 MR. ROSINSKI: Your Honor, first of all, 13 DPS has raised the issue of what's in the EOPs. More 14 importantly, the EOPs and whether they need to be 15 changed or not are the subject of the RAI, which is 16 publicly available and was cited specifically by DPS 17 in this contention. And it's on the record, and I 18 guess I find it difficult to understand the argument 19 that we've raised an issue that something is not in a 20 document and then we point out it is, it's not -- 21 ADMINISTRATIVE JUDGE KARLIN: Well, I 22 think the issue is that you've raised many allegations 23 of what the State has presented or bold allegations 24 and this sort of thing, and in your answer you made 25 sort of a bold statement that you're not going to have NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. II (202) 2344433 WASHINGTON. D.C. 200053701 wvwmealrgmss.com
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196 1 to change the EOP. And I was quite curious about (s {-S.r 2 that, but you didn't really provide us much help as to ti-I 3 why not. And now all of a sudden you're presenting 4 this document and speaking as a former operator and we 5 don't get into evidence or testimony. You're an 6 attorney representing the party and you make 7 representations, and we won't count them as evidence 8 in any way, shape or form. 9 MR. ROSINSKI: I have no intention of 10 .offering any evidence. This is a legal argument to 11 demonstrate only that there is insufficient basis for 12 admission of this contention. 13 ADMINISTRATIVE JUDGE KARLIN: All right. 14 Then let's proceed. I don't know where we are in our 15 calculation of time, but -- 16 MR. WACHTER: Do you want me to include 17 that? 18 ADMINISTRATIVE JUDGE KARLIN: Not the 19 entire colloquy, but go ahead. 20 MR. ROSINSKI: Agreed. 21 ADMINISTRATIVE JUDGE KARLIN: Okay. Go 22 ahead. 23 MR. ROSINSKI: DPS has raised several 24 issues, one of which is operator confusion. Today, 25 operators are highly trained on off-normal and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE. N.W. (202) 234-4433 WASHINGTON. D.C. 20005.3701 wwwnealrgross.com
197 I - i - 1 emergency operating procedures, including evolutions 2 of beyond design basis scenarios. One of those beyond 3 design basis scenarios is to deal with pressure in the y ". 4 containment, containment over-pressure. Therefore, 5 the assertion that operators have not been trained on 6 how to deal with pressure in the containment while 7 attempting to operate RHR or core spray pumps, the 8 emergency cooling system pumps, is wrong. DPS has not i 9 challenged the current training of the operators, and i 10 that is part of their current training. 11 ADMINISTRATIVE JUDGE KARLIN: But isn't 12 their training to control, in a sense, of reduced 13 pressure, not to add to it or create credit for it? 14 MR. ROSINSKI: No, Your Honor, they do 15 both. They are trained for beyond design basis 16 events, which there is no way that they just assume 17 they're in a position. That is why the emergency 18 operating procedure Number 1 has a chart with 19 containment over-pressure in it. There are scenarios 20 in the training where they get to a condition where 21 they have pressure in the containment and they're 22 required to run the pumps at question here and they 23 know how to determine whether they have appropriate 24 pressure to run those pumps or what the pressure is 25 when they're running those pumps, and that is what the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON. D.C. 20005.3701 wwwinealgross.corn
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r 198 r 1 purpose of these charts are. (4. 2 I can summarize what operators will do Vi :
-today ;and what operators will be expected to do in EPU 3
4 conditions as best as we-know today to demonstrate 5 that there are no changes necessary. And that is the 6 point. This is not arguing about what change is 7 necessary. We believe this is a black and white 8 issue. We can demonstrate right here that today when 9 emergency operating procedures are in effect, 10 operators at Vermont Yankee use the procedure, the 11 emergency operating procedure, to determine what 12 source of water is available to inject to maintain the 13 core level or restore core level. 14 In that same emergency operating 15 procedure. it sends them to the chart where the 16 untreated conditions are torus water temperature and 17 the flow rate that the underlying operating procedure 18 directs. That chart is the one that we were referring 19 to. Operators cross those two parameters and it tells 20 them what pressure or over-pressure is necessary to 21 maintain that flow per our design calculations. 22 Today, the operators will never determine 23 that more than zero pressure in the containment is 24 necessary because that is our design basis, no 25 containment over-pressure. The reason for that is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 wwwmeaIrgoss corn
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. , 199 1 that there is not enough heat at the current licensed
- C. '.
2 power level to heat the torus water above a certain I .f i 3 point. That point never crosses the zero pressure in 4 the containment-line. At EPU conditions, there will 5 be more energy available. It is possible under 6 certain circumstances that the torus water will be at 7 a higher temperature. If you go across the graph for 8 the same flow conditions, you may require some over-9 pressure in the containment. That over-pressure is 10 :what has been calculated in the submittals, in the 11 application. 12 MR. BLOCK: I want to put an objection in 13 the record. I mean this sounds an awful lot like 14 testimony to me just by what he said. And I hope the 15 Board will strike all of it where none of it is 16 referenced to any material in the application, and he 17 goes on and on relating information that is not before 18 the Board, except through this attorney's mouth right 19 now. 20 ADMINISTRATIVE JUDGE KARLIN: Any response 21 to that? 22 MR. ROSINSKI: I was answering the Board's 23 question as to why there is no need to change the 24 EOPs. 25 ADMINISTRATIVE JUDGE BARETTA: I have a NEAL R. GROSS C COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. If (202) 234-4433 WASHINGTON. D.C. 20005.3701 wwwnaflrnssxom
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200 1 very simple question I'd like to ask. CI. 2 ADMINISTRATIVE JUDGE KARLIN: Well, let me 3 rule on this first. I mean I think we're going to -- 4 ADMINISTRATIVE JUDGE BARETTA: Well, I 5 think it will clarify this. 6 ADMINISTRATIVE JUDGE KARLIN: Okay. Maybe 7 this will clarify. 8 ADMINISTRATIVE JUDGE BARETTA: That's why. 9 It says in your response, and this is where I'm 10 confused because of what Mr. Roisman has just said, 11 that these actions are set out in charts and they are 12 part of the existing EOPs to which the operators refer 13 for instruction. Now, are you referring in our 14 discussion now to that statement? 15 MR. ROSINSKI: Exactly that, sir. Yes, 16 sir. 17 ADMINISTRATIVE JUDGE BARETTA: So you're 18 clarifying that point; is that correct? 19 MR. ROSINSKI: I am trying not to repeat 20 our filings but to clarify what that means. 21 ADMINISTRATIVE JUDGE BARETTA: And under 22 EPU operations, EOPs -- 23 ADMINISTRATIVE JUDGE KARLIN: What page? 24 ADMINISTRATIVE JUDGE BARETTA: I'm 25 referring to Page 36 of the Entergy response to the (. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 wwwleaIrqross.corn
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t i 201 I I __I 1 DPS Notice of Intention to Participate Petition, dated 2 September 29. And I can also refer to Mr. Roisman's
'-'a,I 3 citation of the same EOPs, which suggest that these 4 were available. And that's what's bothering, that 5 this material seems to have been available and should 6 have been reviewed properly.
7 MR. ROSINSKI: Just to be clear, if I may, 8 I lumped together many events in my description, but, 9 as discussed in this paragraph, that is how the 10 operators will respond in a verbal -- I described it 11 verbally what is represented in this paragraph. 12 ADMINISTRATIVE JUDGE BARETTA: I just 13 wanted to clarify that point. 24 ADMINISTRATIVE JUDGE KARLIN: Right. So 15 these statements were made in the pleadings. We are 16 not allowing, nor did you attach in your pleading, 17 those documents that you were referring to. So those 18 are not in evidence here, and we won't consider them. 19 In this discussion, counsel have made numerous 20 representations and statements about things, and I'm 21 going to let them answer the questions we've got here. 22 So I'll not sustain that objection, Mr. Block. 23 MR. BLOCK: Thank you. 24 ADMINISTRATIVE JUDGE KARLIN: Thank you. 25 I think it is important for us to understand a bit of f . NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 wwwnealrgross.com \ . . .
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I f 202 I. 1 this. We're not going to have evidence here, but I 2 would like to understand how they can answer the f -
- 3. State's point as they have.
MR. ROSINSKI: Just to be clear and to put a point on this, what I was trying to attempt here, 6 the question before us, I believe, or before you is 7 whether there are any -- whether the EOPs contain 8 information or do not. It is not about the quality of 9 the information or about the clarify of the 10 information. The statement in the contention is that 11 the EOPs do not address containment over-pressure and 12 that operators will be confused by a change that is 13 required to put that information in. What I have 14 attempted to describe and what I'm representing is 15 that neither one of those has a basis. Now, it is not 16 an evidentiary issue of a shade of gray; this is a 17 black and white issue. It is in there, the operators 18 are trained on it, there is no change necessary. 19 Therefore, to go to the second point that they will be I 20 confused by some change, which is unidentified yet, is I t 21 pure speculation. 22 ADMINISTRATIVE JUDGE KARLIN: Well, let me 23 ask you, I mean the State has put forward this 24 exhibit, Number 18, and they have this chart in the 25 number of seconds. And at 1.26001 second, the over-NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 wwwneargross.corn It 11 T__~.
tI iI 203 I I 1 pressure is 2.4, and at 2000 it's 2.4; 2001, it's 3.4. 2 And it goes on for 50 hours of different pressures TI- 3 that have to be maintained. And it's all nicely Ii -5 4 displayed in a chart with these steps of pressure. And somehow it seems to me you're asking the credit in .. 6 your application that -- that Entergy get credit for i 7 doing this, over-pressure credit. And I guess what tt II 8 you're telling me is you're doing this already. This iII 9 exact chart, that's exactly what you're doing right 10 now. .t 11 MR. ROSINSKI: The existing charts, the 12 existing information -- 13 ADMINISTRATIVE JUDGE KARLIN: No, this. 14 You're doing this now. 15 MR. ROSINSKI: If I may, the existing 16 charts in the current EOPs allow for that. They bound 17 that over-pressure because the fundamental physical 18 parameters remain the same. Torus water temperature 19 gets higher, you need more NPSH. That is all we're 20 saying. We didn't credit it in our design basis 21 before. Essentially, the lines, wherever we are, at 22 0 PSIG or 5 PSIG, approximately where we would be at 23 EPU, defines the line between design basis and beyond 24 design basis: Al. we're doing is shifting that line. 25 It's transparent to the operators. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 wwwnealrgrosscorn
I I 1 And really that's the source of my comment 204 2 about my operations background. I'm aware that I I-Ix. g;
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Vermont's expert is an engineer, and maybe that is the example. That is an engineering chart. Operators li s 5 don't operate off of that. Operators operate off the 6 current EOP, which are smooth and bounding and allow 7 for the events, and the way that those procedures are 8 used during those events is precisely why they are
. 9 smoothed out and simple to use because there are a lot 10 of things going on.
4 11 If I may continue, operators are trained 12 to balance flow, balance pressure, balance temperature I 13 all the time. That's what their job is, in a i 14 nutshell. Today, if they didn't balance flows, 15 temperatures or pressures, the Plant would be either 16 be too -- it wouldn't be in balance. That's what they 17 do every minute that they're on watch and that's what 18 they're trained to do. This is not the 19 extraordinarily different, more difficult aspect of 20 their job than any other part of a difficult but not 21 untenable job is. 22 ADMINISTRATIVE JUDGE BARETTA: Could I ask 23 you, is that either of the EOPs that are cited by the 24 State, EOP-1 or EOP-3, that would contain that? 25 MR. ROSINSKI: EOP-1 is the reactor
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k z 205 1 pressure vessel level control. That is where the -- 2 that is the priority of the EOPs, is to go there, keep 3 the core covered. That is where the information I am 4 talking about lies. - 5 ADMINISTRATIVE JUDGE BARETTA: Okay. So 6 that curve that you mentioned would be in EOP-1. 7 MR. ROSINSKI: Yes. There are charts for 8 both the RHR and core spray and numerous others for 9 different situations. We must also keep in mind that 10 EOPs are not event-driven. You don't go through an 11 EOP based on LOCA or based on what you think the event 12 is. That's lessons learned. 13 What they are is symptom-based. You run 14 many of these in parallel. You're constantly 15 balancing efforts to maintain maybe a pressure in one 16 place higher and a pressure in another place lower. 17 There's nothing extraordinary about balancing and 18 maintaining pressures and temperatures and flows in 19 the scenario that DPS has raised here. And they 20 haven't been able to point to what is different about 21 this. 22 MR. WACHTER: Two minutes. 23 MR. ROSINSKI: To continue, we want to 24 make the point that we stated in our answer that the 25 EOPs establish the measures the operators need to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE, N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 wwwjegross.corm \1 _1 7..- -._-..
2065 i: r . r . .- 1 maintain containment pressure during an event without I
..C, 2 the need to refer to the small pressure steps 3 predicted by the calculation. DPS did not respond to 4 that and does not challenge that.. They get to hold up 5 their sign with the little pressure steps on it. We 6 made it clear in our answer that that was not the 7 appropriate document to use, that it was an 8 engineering document, it was not the operators' Ii 9 document, it was not the operators' guidance.
i Ii 10 ADMINISTRATIVE JUDGE KARLIN: Well, let me 11 ask, I mean even though that might not be the document 12 to use, it just seems to me that there's a change 13 occurring, that you're requesting now credit for over-14 pressure, that you will affirmatively maintain 15 additional pressure, and that somehow is different 16 that what was going on before, because that's why 17 you're asking for it. But you're saying in reality 18 nobody's going to do anything different. 19 MR. ROSINSKI: It's different for the 20 engineers because -- 21 ADMINISTRATIVE JUDGE KARLIN: I mean I 22 don't care what the piece of paper is that they're 23 going to refer to. 24 MR. ROSINSKI: They will not perform as 25 any different steps. The results of the chart will NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE. N.W. (202) 2344433 WASHINGTON, D.C. 20005-3701 wwwmeaIrgross.com K
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3 show that potentially in certain circumstances they will need to maintain a small pressure, but-the chart will tell them what it is -- amount of positive
- 1. 4 three pounds, two pounds, whatever -- and they will I 5 have that information to continue to monitor like they 6 do all the other parameters when they pull a number 7 off of any of those charts. They will maintain that, i 8 and they are trained to maintain it, and other steps 9 and other procedures are accounted in the training 10 that may cause them to have to balance some of-these 11 things, but they know they have to have that pressure 12 to maintain their first priority which is to cover the 13 core. And DPS has not challenged any of that. They 14 have made a blanket statement that this does not 15 exist, the operators are not trained and that any 16 change would confuse the operators.
17 ADMINISTRATIVE JUDGE KARLIN: Well, I 18 think they're suggesting there would be confusion. 19 Okay. Time. Thank you. Ms. Poole? 20 MS. POOLE: Thank you. The Staff -- 21 ADMINISTRATIVE JUDGE KARLIN: Ten minutes. 22 Ten minutes? 23 MS. POOLE: Pardon? 24 ADMINISTRATIVE JUDGE KARLIN: I believe 25 it's ten minutes. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 1www.nealrgross.corn I
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208 I I - 1 MS. POOLE: Yes. We don't have a great 2 deal to add to what's in our papers. The Staff just 3 wanted to address something that was raised in the 4 Department's reply. :The Department states that the 5 Staff uncritically replies on the Applicant's RAI 6 response that states that no EOP changes are involved 7 in the request at issue here. Thus, the State 8 characterizes the Staff answer as being that because 9 Applicant says no EOP changes are required, it must i. 10 follow that none are needed. 11 I want to clarify that this 12 characterization of the Staff's reply is not correct. 13 The Staff in fact has not reached the merits at all as 14 to whether any changes are necessary to the EOPs or 15 the guidance. We cited the RAI response for the 16 proposition that the Staff questioned whether the 17 Petitioner had shown a factual dispute on the issue of 18 the changes, or none, as the case may be, to the EOPs. 19 It was simply as a reference to show the dispute. 20 We're not taking any position on the merits. And 21 that's all we have to add unless the Board has any 22 questions. 23 ADMINISTRATIVE JUDGE KARLIN: All right. 24 Questions? Thank you. I . 25 ADMINISTRATIVE JUDGE BARETTA: Could I ask I ... ., NEAL R. GROSS
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209 I 1 just a technical question? The curve that we saw 2 there a moment ago and is in the exhibit, is that
- 1 3 fairly typical of most BWR containments, do you know 4 off hand?
5 MS. POOLE: It is typical of those that 6 take containment for credit over-pressure -- for 7 containment over-pressure, but it would not be in 8 something that we would typically understand to be in 9 the EOPs. 10 ADMINISTRATIVE JUDGE BARETTA: Okay. 11 Thank you. 12 MR. ROISMAN: A little reply? 13 ADMINISTRATIVE JUDGE KARLIN: Is there 14 some time left. 15 MR. WACHTER: Nine minutes. 16 ADMINISTRATIVE JUDGE KARLIN: I'm sorry, 17 you have nine minutes for a reply, Mr. Roisman. 18 MR. ROISMAN: Well, not only is there a 19 problem with confusion of the operators, I think 20 there's a problem with confusion in the room. Let me 21 see if I can try to clarify that. 22 This -- and what Staff counsel just 23 answered is important -- this is something new that 24 applies only if you're going to take credit for 25 containment over-pressure. Normally, and that's our NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234.4433 WASHINGTON. D.C. 20005-3701 wwwmealrgos.cosmr I _ . .
210 1 point, normally, currently, the operator is told, "Get ( _ 2 the containment pressure down." That's the rule. 3 There's nothing in the EOP that tells him how am I 4 Supposed to balance that responsibility with this new 5 responsibility to not get it down but to keep it up 6 and for very discrete portions? 7 If you go and look at what we said in the 8 initial contention, this is in our Petition beginning 9 at Page 35, we identify all the different steps that -J 10 the operator is required to try to meet in order to 11 get the pressure just right. So that's the first 12 point. Our first point is that it is inherently 13 confusing. The Applicant's answer is, "We tell him to 14 do both of those things." That's not an answer to 15 explaining why it isn't confusing and therefore 16 fraught with the risk that he may get it wrong without 17 more guidance on how he's supposed to simultaneously 18 do these two things that are inherently inconsistent 19 and how he manages to get and hit those marks in this 20 50-hour period, keeping in mind that the consequence 21 of missing the mark is that an ECCS pump may fail and 22 we have a much, much more serious accident as a 23 result. So that's the first point. 24 The second point is, and I want to talk 25 about this specifically, we do have and we put into NEAL R.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 23-4433 WASHINGTON. D.C. 20005-3701 wwwmeaIrgross.com a/* *. , , . .' ' -- '- :' . . ' _,
fz II N 211 IY t 1 evidence and it's Exhibit 29 to our pleading, the RAI ( l . 2 response, the one that the Staff was just referring to 3 that we said they accepted what the Applicant said at 4 face value. I think it's significant that you didn't 5 hear the Staff say, yes, and they're okay. The Staff 6 said, "All we said was that's what the Applicant said. 7 We're still looking at it." 8 So this isn't quite shut an open and shut 9 issue. I don't meant to suggest that we should wait I S 10 for the Staff, but the fact that they think it's worth 7 11 looking at suggests it's not quite as simple as the 12 Entergy counsel would have you believe. 13 So let's look at Exhibit 29, and there was 14 an RAI SPSBC-22, and the question was, "What are you 15 doing to change your emergency operating procedures to 16 deal with containment over-pressure?" The short 17 answer is, "The VY NPS emergency operating procedures 18 do not require revision." And then dealing with 19 emergency operating procedure Number 1, which Entergy 20 counsel says is the critical one, this is what the 21 document says. "In accordance with EOP-1, when using 22 RHR,ft that's one of the pumps, "for an injection 23 system, operators are directed to inject through the 24 heat exchanger as soon as possible and to control and 25 maintain pump flow below the RHR NPSH limit." But NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. www~nealrgraos.con II (202) 2344433 WASHINGTON. D.C. 20005-3701
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212 1 this chart is about pressure, not about flow. 2 Our point is now for the first time, as Ic. t .J, 3 counsel for Entergy conceded, the line in.which the 4 temperature and the torus gets to the point where you 5 have to worry about NPSH had never been reached: 6 before, because you don't reach it if you don't uprate 7 this Plant by 20 percent. Now you've uprated it by 20 8 percent. Now there's a new problem because you 9 decided to deal with NPSH problems with containment 10 over-pressure. 11 ADMINISTRATIVE JUDGE BARETTA: I'm a 12 little confused there, though, because you're taking 13 that paragraph and the two succeeding paragraphs in 14 that RAI response. In fact, in the second paragraph, 15 it says, "In accordance with EOP-3, drywall sprays are 16 initiated before containment temperature reaches 280 17 degrees fahrenheit or when torus pressure exceeds 10 18 psi. Containment sprays should isolate automatically 19 when drywall pressure decreases to 2.5 psi. Both of 20 these steps in EOP-3 provide reference to Caution 21 Number 5 and emphasize the relationship between 22 primary containment pressure and available NPSH." 23 So these EOPs, as we've heard, are not They're symptom-based, and you II 24 taken in isolation. I . . 25 work with them as a series in parallel because you NEAL R.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., NW. (202) 2344433 WASHINGTON. D.C. 20005-3701 wwwrnealmross.com K> ':-- - - "':.:i:; . ~ ~,i. .. :, ,, *_; 1"<'~
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213 1 really don't -- and that was a lesson that came out of 2 TMI is that you can't have a -- you don't want the 3 operators trying to identify the accident. You want i 4 them to keep the core covered, and therefore you work 5 with them based on a systematic-based issue and you 6 may have two or three of these in play at any given 7 time. And you seem to be taking a portion of one 8 without taking credit for portions of the other, and 9 I'm confused about that. 10 MR. ROISMAN: Let me be clear. The issue, 11 brand new for this Plant, keep in mind until and 12 unless uprate is approved, this Plant doesn't pay any 13 attention to trying to keep containment over-pressure 14 up. That's not their goal. Their goal is exactly the 15 opposite: Get containment over-pressure down. So 16 that's what the Plant is today. That's what the 17 operators are told: This is job one. 18 Now, something new has happened. We've 19 got an uprate. Now we have to find a way to deal with 20 the NPSH problem that we wouldn't have had to deal 21 with if we didn't have uprate. So the question is how 22 do you deal with it? 23 Now, common sense would say if you've now 24 changed something as fundamental as this, that you 25 would want your operating procedures to alert the NEAL R. GROSS 1 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 www~neaIrgross.com
214 1 operator to the fact that you're going to have to now 2 do something that you weren't doing before. We don't 3 want you to always be dropping containment pressure. 4 We want you instead to be controlling containment 5 pressure to a chart, a table, whatever, whatever is in 6 that instruction, but no guidance to how the operator 7 is able to do that in conjunction with his other 8 function. We're saying that when they try to spell 9 that out -- and I think the reason they've not spelled 10 it out is that they can't figure it out. How do you 11 tell the guy, "Drop it as fast as you can, keep it up 12 as much as necessary." That's just an inherently 13 confusing problem. 14 Now, what this RAI does is it tells you 15 that the only thing they now do is direct the operator 16 to take control and maintain pump flow. So they're 17 not even directing him to the critical question, which 18 is pressure. Nothing in here says keep the 19 containment pressure up. 20 ADMINISTRATIVE JUDGE BARETTA: I mean I 21 guess I don't see that, because I thought that's what 22 that statement was I just read, but go ahead. 23 MR. ROISMAN: Well, I mean, I guess at 24 root we're arguing about what it is that's going 25 happen. We want an opportunity to have someone come NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
215 1 up who's under oath and tell us how--he's going to 2 handle or she's going to handle the containment over-K>~ . 3 pressure requirement in the event of a loss of coolant 4 accident operating off of these EOPs. Where do these 5 EOPs provide the guidance? We submit they do not. 6 They say, without submitting anything more than what 7 we've submitted, "Oh, yes, they do." But with due 8 respect, the Board is being asked to speculate about 9 what those EOPs said. All we have and what we've 10 submitted is the RAI answering the specific question 11 we've asked when the Staff asked it, which we thought 12 was adequate for purposes of making a contention and 13 showing that we have a basis for the contention. 14 ADMINISTRATIVE JUDGE RUBENSTEIN: So your 15 contention is basically two parts. There's a need for 16 an EOP change, and in examining the EOPs, you find 17 it's an omission. 18 MR. ROISMAN: Yes. 19 ADMINISTRATIVE JUDGE RUBENSTEIN: And the 20 second part is if there's a need for an EOP change, 21 potentially this change could be confusing, and it's 22 a little -- I don't want to use the word, 23 "extraordinary" -- but a little out of what an 24 operator normally sees on a simulator in its training. 25 MR. ROISMAN: Yes, but even beyond that is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
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216 1 the question of whether or not this is not inherently 2 - 3 ADMINISTRATIVE JUDGE RUBENSTEIN: It's not 4 the issue of whether there should be a COP. We're now 5 dealing with the issue of if there is a COP change, 6 how should we address it. That's the way I read your 7 contention. 8 MR. ROISMAN: Did you say, "COP?" 9 ADMINISTRATIVE JUDGE RUBENSTEIN: 10 Containment over-pressure. 11 MR. ROISMAN: I'm sorry. 12 MR. WACHTER: Two minutes. 13 ADMINISTRATIVE JUDGE RUBENSTEIN: Your 14 shorthand terminology. 15 MR. ROISMAN: I'm sorry. It was that I 16 couldn't tell whether you were saying COP or EOP and 17 we're talking about both here. 18 ADMINISTRATIVE JUDGE RUBENSTEIN: Good 19 point. 20 MR. ROISMAN: Yes, I think that that's 21 correct, but I think if all we said was, "Because 22 you're going to have to now have containment over-23 pressure, you need to make changes," we probably would 24 flunk the contention specificity requirement. So 25 we've gone beyond that, and, frankly, I think that the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
217 1 exchange that's taken place, not face-to-face, between 2 myself and counsel for Applicant is illustrative of 3 the fact that we have a dispute and that's why you 4 hold hearings, to resolve those disputes. And we hope 5 that you'll agree with us that this is a contention 6 that warrants having a full hearing and having it 7 resolved. 8 ADMINISTRATIVEJUDGERUBENSTEIN: Well, in 9 the basis, I'll have to go back and read it, but would 10 you say something about the need for it, other than 11 confusing? In other words, if you put it in, it's 12 confusing, but why do you need it? Why do you need it 13 in the EOP? 14 MR. ROISMAN: Well, because -- you need it 15 someplace. If they want to come up with another place 16 that they think they can put it and demonstrate that 17 it will solve the problem, that's their option to make 18 - 19 ADMINISTRATIVE JUDGE RUBENSTEIN: But I 20 think I heard them say they don't need it. 21 MR. ROISMAN: Right. And we say -- I mean 22 looking at bases now, not supporting evidence, and 23 that's a really important distinction for us, although 24 not one that the Staff and the Applicant want to focus 25 on, supporting evidence doesn't -- nobody suggests NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.neatrgross.com
218 1 that we have to have admissibility of supporting 2 evidence. But the basis says the response by the 3 Plant operator at an event which increases containment 4 pressure is to reduce containment pressure. That's 5 the normal. But the proposed design basis change to 6 credit set levels of containment over-pressure, the 7 operators will be placed in the confused position of 8 both needing to reduce containment pressure and to 9 maintain containment pressure. I submit nothing we've 10 heard this.morning and nothing in any of the pleadings 11 says that's not true, that the operator will be faced 12 with that. 13 And then we say the Applicant's proposal K> 14 related to emergency operating procedures would create 15 the same unacceptable human factors paradigm for 16 operators that was found by the task force which 17 investigated Three-Mile Island. In other words, it 18 would create -- and then we cite to the Three-Mile 19 Island to show the kind of paradigm that they said in 20 their lessons learned we don't want to create. And 21 we're saying they're creating it here. 22 So we are saying that maybe we're from 23 Missouri, technically we're from Vermont, but show me, 24 show us how. Merely asserting that we have another 25 chart that they hold up that shows the operator can NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234.4433 WASHINGTON. D.C. 20005-3701 www.neatrgross.mom
219 1 look at the chart without ever telling us how he's 2 supposed to obey that chart and obey your other 3 obligation to keep containment pressure down as 4 quickly as you can after an accident, you haven't 5 addressed that. 6 ADMINISTRATIVE JUDGE RUBENSTEIN: 7 Alternatively, you're also asserting that it's 8 confusing and that's the second issue. 9 MR. ROISMAN: Yes, that's correct. 10 ADMINISTRATIVE JUDGE RUBENSTEIN: I'm 11 done. 12 ADMINISTRATIVE JUDGE KARLIN: Okay. Thank 13 you. Okay. Thank you, Mr. Roisman. I think that 14 concludes our discussion on State Contention 4. So I 15 appreciate -- I think the argument has gone well and 16 been conducted well. We will adjourn at this point. 17 ADMINISTRATIVE JUDGE RUBENSTEIN: Are we 18 going to lock this? Is this place secure? 19 ADMINISTRATIVE JUDGE KARLIN: I'm not 20 sure. Do we know what the security situation is? You 21 will stay here? Okay. 22 MR. ROSINSKI: We will leave someone here. 23 ADMINISTRATIVE JUDGE KARLIN: All right. 24 So you can leave your stuff here or at least we'll 25 have guards here so you can leave your materials. So NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 ww.neaIrgross.comn
220 1 let's reconvene at two o'clock, about an hour and 15 2 minutes from now, and we'd like to get through at 3 least four or possibly five of the contentions this 4 evening, additional contentions this evening. 5 (Whereupon, the proceedings went off the 6 record at 12:42 p.m. and went back on the record at 7 2:02 p.m.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross .com (202)* 23 .4 3 , , -ltg', :'
221
. .I 1 A-F-T-E-R-N-O-O-N S-E-S-S-I-O-N 2 2:02 p.m.
3 MR. BLOCK: May we take up a procedural 4 question briefly? 5 ADMINISTRATIVE JUDGE KARLIN: Yes. 6 MR. BLOCK: It just deals with the 7 schedule. I was wondering if you could indicate when 8 you intended to adjourn today or on what basis -- 9 ADMINISTRATIVE JUDGE KARLIN: I'm sorry, 10 I couldn't hear you. 11 MR. BLOCK: I'm sorry, when you intend to 12 adjourn today, what time? 13 ADMINISTRATIVE JUDGE KARLIN: I think 14 we're going to try to get through four contentions 15 this afternoon. At 45 minutes apiece, that's three 16 hours, maybe a break in there. So 5:30, maybe 5:30. 17 Certainly by six I think we'll adjourn. 18 MR. BLOCK: Thank you very much. I 19 appreciate it. 20 ADMINISTRATIVE JUDGE KARLIN: That' s what 21 we're going to shoot for anyway. Okay. I th ink we 22 will reconvene, go back on the record. Ancd, Mr. 23 Roisman, I think you proceed with State Cont ention 24 Number 1 at this point? 25 MR. ROISMAN: Yes, Mr. Chairman. The NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON. D.C. 20005.3701 www.nealIrgross.com
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222 1 essence of this contention, which arises out of many 2 of the same considerations -- 3 ADMINISTRATIVE JUDGE KARLIN: Let me ask, 4 anything with rebuttal or the same general rule, no 5 rebuttals? 6 MR. ROISMAN: I'll keep answering your 7 questions as long as you want to ask them. 8 ADMINISTRATIVE JUDGE KARLIN: All right. 9 MR. ROISMAN: The same factors in a 10 certain way influence Contention 1 as influenced 11 Contention 2. The difference here is that what we 12 have focused on is the potential effect of the use of 13 containment over-pressure for the first time at this 14 Plant on the barriers that are set for protecting the 15 public health and safety in the event of an accident. 16 And a principal argument is that once you 17 make containment over-pressure something that is a 18 credit for an entirely different system, namely ECCS 19 system, if there is a failure of containment to 20 maintain the necessary pressure, it not only affects 21 the containment, which it of course always would have, 22 but it will now also have the effect of potentially 23 disabling the ECCS system. 24 So if you don't take credit for 25 containment over-pressure, then should there be a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 wwwnealrgross.corn
223 1 failure in containment, the consequences are limited 2 to whatever happens when containment fails, and the 3 NPSH problem is being dealt with without counting or 4 getting credit for the containment over-pressure. So 5 that is the sort of source of the issue. Now -- 6 ADMINISTRATIVE JUDGE RUBENSTEIN: So the 7 initiating event is a large-break or a small-break 8 LOCA. 9 MR. ROISMAN: Right. 10 ADMINISTRATIVE JUDGE RUBENSTEIN: And a 11 simultaneous containment failure? 12 MR. ROISMAN: No. No, we're not -- 13 ADMINISTRATIVE JUDGE RUBENSTEIN: It's a 14 consequential containment failure? 15 MR. ROISMAN: What happens is is that the 16 containment fails to achieve the levels of pressure 17 because of things which we've identified -- this goes 18 back to some of our discussions about uncertainties -- 19 but things like the valve leakage, that if that 20 containment doesn't maintain that level in light of 21 problems with the containment isolation valves, then 22 the containment pressure -- 23 ADMINISTRATIVE JUDGE RUBENSTEIN: Will 24 drop and the NPSH would be insufficient, and then you 25 would have temperature and pressure in the suppression NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.corn
224 1 pool and that would go up. -So these are compound 2 events? 3 MR. ROISMAN: Correct, if you're counting 4 containment pressure. If you're not counting 5 containment pressure, then you're able to meet NPSH 6 requirements because you've done something else. 7 You've either not raised the power level up as much as 8 the uprate -- because right now this Plant doesn't 9 need containment over-pressure to make sure that NPSH 10 requirements are met. 11 ADMINISTRATIVE JUDGE RUBENSTEIN: But if 12 you're meeting the required NPSH, what is challenge to 13 the containment, if you're not overheating? 14 MR. ROISMAN: The challenge is -- and I 15 want to make sure that I -- my expert here will 16 correct me if I get this wrong. The challenge is 17 this: In the event of the loss of coolant accident, 18 if NPSH-R is being met without regard to containment 19 over-pressure, in other words it's met because you've 20 got a better quality pump there or you have somehow or 21 another created -- you don't have so much power in the 22 Plant that NPSH is influenced the way it would be in 23 this uprate, in other words if you stayed with the 24 status quo, then if containment over-pressure doesn't 25 achieve the expected levels, nothing is adversely NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
225 1 affected outside the containment as a result of that. 2 The containment has more leakage, you don't get the 3 little chart I showed you that shows where containment 4 over-pressure is expected to be, you fall below that 5 level. There's no system in the Plant that was 6 counting on you to be above that level. So no 7 problem. 8 But if instead you make containment over-9 pressure something that is required to deal with a 10 different system, in this case ECCS pumps and NPSH-R, 11 then when that containment over-pressure doesn't 12 achieve what you had expected or wanted, now we have 13 an effect on the ECCS and that makes it influence two 14 of the barriers that are supposed to not be influenced 15 by a single event. That's the problem. 16 Now, let me say in further support of 17 that, as we pointed out in our pleading, if you look 18 at the history of the NPSH issue, the 1996 19 recognition, the investigation, the resolution, even 20 the letter that was sent to Vermont Yankee in 1999, 21 throughout that nobody said, "Let's allow containment 22 over-pressure to be used to meet NPSH deficiencies." 23 In other words, they continued to treat the 24 uncertainties that we talked about before as important 25 enough that you wouldn't now be allowed to use NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 www.nealrgross.com
226 1 containment over-pressure. 2 And then what happened, and this is 3 explained in the documents, some of which we've 4 attached, then what happened was that a few plants 5 came back to the NRC and said, "Hey, if we have to fix 6 the debris blockage problem the way you're proposing, 7 we're going to have a problem that we can't meet NPSH 8 requirements, and we need to take containment over-9 pressure credit." And so you then had the agency, the 10 ACRS and then the NRC staff, eventually, memorialized 11 in 1.82 Rev. 3, saying, "Okay. When it's necessary 12 and impracticable to do anything else, we'll let you 13 take credit." And what they were doing, what we 14 believe they were doing, is they were recognizing that 15 essentially a backfitting obligation imposed by the 16 agency in the form of, "Deal with this debris blockage 17 problem," was creating a problem for a sum of 18 reactors, and they were going to let them take a fix. 19 Now what we have is a plant that's not in 20 that category. This is not a plant which operating at 21 its regular licensed basis needs any containment over-22 pressure credit. So they're now stepping up and 23 they're saying, "No, we want containment over-pressure 24 credit in order to be able to uprate." And because 25 that's a voluntary act, not the result of a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 www.nealrgross.com
227 1 backfitting or a change in requirements imposed by the 2 NRC Staff, we think that falls into a different 3 category. 4 And what we want to do, and what we've 5 done in Contention 1 is, to point out that the people 6 who were approving the fix for NPSH problems created 7 by the strainer were saying all along, "You know, 8 there are a lot of problems here, but we think" -- in 9 fact, I think one of the ACRS statements was, "Let's 10 put this on the street, let's get it out there." 11 Because there was no doubt that the fix, that is 12 putting in, as Applicant has indicated here was done 13 at this Plant, putting in these much larger strainers 14 did help to deal with the debris problem. 15 But what the documents that we've cited in 16 the Contention say is that even though they did that 17 there were still questions, there were still doubts, 18 and there was still a belief expressed in ACRS 19 documents and elsewhere that we ought to be concerned 20 that we don't completely have our hands around this 21 issue. There was no doubt that the bigger strainers 22 was a good first step and everybody had to do that, 23 but this is something different. 24 And if I may, I just want to point out -- 25 ADMINISTRATIVE JUDGE KARLIN: Mr. Roisman? NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON, D.C. 20005.3701 www.nealrgross.com
228 1 MR. ROISMAN: Yes. 2 ADMINISTRATIVE JUDGE KARLIN: Maybe I 3 could ask, on the credit for containment over-4 pressure, the Staff seems to say in its answer that 5 this is not that unusual. They've done it 20 times or 6 something like that. What's the answer to that? Are 7 you distinguishing the time, whether they're uprates 8 versus not an uprate situation? 9 MR. ROISMAN: Well, I think there are two 10 answers. First of all, this is not a situation in 11 which we have a generic rulemaking resolution of this 12 problem which now is being applied to a new plant. 13 This plant has to be taken on its own, and I believe 14 that most of those plants have been of a different age 15 than this one, but even if not, the question still has 16 to be what about this one? I don't dispute the fact 17 that the Staff -- and I assume that they decided to 18 come in as a party will want to offer evidence as to 19 why they think that containment over-pressure can be 20 safely used even in a plant like Vermont Yankee. And 21 we're not saying that there's no evidence that that's 22 true. 23 ADMINISTRATIVE JUDGE KARLIN: Right. 24 MR. ROISMAN: We're saying that there's 25 other evidence that says that it's not very wise. The NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
229 1 most important part of that evidence is the history 2 reflected in the evolution of what now is Rev. Guide 3 1.82 Revision 3. And that history shows a very much 4 more reluctant willingness to allow containment over-5 pressure to be used to deal with NPSH-R requirements, 6 that there have been other plants where that has been 7 allowed anyway. That's a fact, but I don't think it 8 is a dispositive fact. 9 I did want to mention -- 10 ADMINISTRATIVE JUDGE BARETTA: Before you 11 go on to your next point, could I ask a couple of 12 questions? 13 MR. ROISMAN: Yes, of course. 14 ADMINISTRATIVE JUDGE BARETTA: It seems 15 one of your basis tenets on this with respect to 16 compromising ECCS performance and coupling the 17 containment to ECCS performance, that that's 18 undesirable, yet I'm curious as to are you familiar 19 with like the advanced reactor concepts, like the AP-20 600 and such? 21 MR. ROISMAN: Familiar would be a gross 22 overstatement. 23 ADMINISTRATIVE JUDGE BARETTA: Because in 24 those the containment actually forms part of the 25 emergency core cooling system and actually provides a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
230 1 source of water for the primary system in a way -- and 2 that was considered to be desirable because it was a 3 passive capability, and this containment over-pressure 4 is a passive feature in a way. Do you follow what I'm 5 saying? 6 MR. ROISMAN: Yes, I do. 7 ADMINISTRATIVE JUDGE BARETTA: Could you 8 comment on that, because that was one of the things 9 that was troubling me? 10 MR. ROISMAN: Well, I think, first of all, 11 that the question isn't whether or not we could come 12 up with a plant design in which the use of containment 13 over-pressure as a way of dealing with one of the 14 other issues is a good idea. The narrow question, 15 only question that we really want to raise and the 16 only one that we're really permitted to raise here is, 17 is it a good idea for this plant, given what we know 18 about this plant? And I think the answer to that is 19 that with regard to this plant, there is no evidence 20 that we have found that persuades us that the NPSH-R 21 should be met by taking a credit for containment over-22 pressure, given that historically that the agency from 23 the ACRS have been reluctant to do that because of 24 problems in the way in which that analysis is done 25 that continue to this day. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
231 1 Now, I want to be clear that we're not 2 talking here about calculations. We believe that 3 Entergy has run its calculations, the VY 0808, as well 4 as they can with what they've got. Our point is that 5 the calculations that they've run have essentially 6 glossed over these uncertainty issues and that they 7 wouldn't make a difference if we weren't in an uprate 8 mode where the purpose was now to use the calculations 9 to get some containment over-pressure credit. That's 10 where the problem arises. 11 ADMINISTRATIVE JUDGE RUBENSTEIN: We're 12 sort of back to one of your contentions we addressed 13 this morning. 14 MR. ROISMAN: Well, I think the two are -- 15 ADMINISTRATIVE JUDGE RUBENSTEIN: Yes. 16 MR. ROISMAN: -- are interrelated because 17 either there's a problem with using containment over-18 pressure or there's not, and we go back to the same 19 fundamental problem. 20 ADMINISTRATIVE JUDGE RUBENSTEIN: I'm 21 having a little trouble with following you in a sense 22 of when you went through your sequence of events which 23 would bring this about, I'm sitting here thinking in 24 a flow chart sequence rather than getting into your 25 basis for why the containment pressure would fall. So NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
232 1 one has -- if I was doing an event, one would start 2 with a LOCA, a loss of coolant accident where a pipe 3 breaks, ECCS would work. Now your hypothesizing that 4 the containment over-pressure, EOP sequence, 5 management operation fails. Is that correct? In 6 sequence. We have a LOCA, we're now talking about a 7 failure in containment over-pressure management, which 8 gives rise to a loss of heat removal, a rise in the 9 temperature of the suppression pool and an increase in 10 the containment pressure or are you talking about some 11 other failure mechanism for the containment? 12 So I'm trying to get a hint of how you -- 13 if you just -- rather than get into your basis or into 14 the merits saying, "We think the containment has 15 leakage," then one would have to ask if you got into 16 the merits the extent of the leakage, is that likely 17 to compromise the containment integrity? So just 18 going down the sequence of events, I'm trying to look 19 for what -- later on we talk about single failures, 20 and I'm trying to see how that fits in with the 21 regulations. 22 MR. ROISMAN: Give me a second. 23 (Pause.) 24 MR. ROISMAN: Okay. I'm going to try to 25 say this. Conceptually, we have a single failure as NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.neafrgross.com
233 1 the analysis criteria that's used by the NRC. In the 2 real world, we see lots of instances where when there 3 is an emergency shutdown, not a LOCA, an emergency 4 shutdown, that actually there are often more than one 5 failure. We're not nervous about that. We don't then 6 say, "We'd better shut down all the nuclear power 7 plants because they're all designed to single 8 failure." Rather, we say, "Well, defense-in-depth is 9 what gives us our confidence; that is, the ability to 10 know that we have these other defenses that we've been 11 maybe very conservative about will compensate for the 12 possibility that we might actually have more than one 13 failure when something happens." That concept can be 14 departed from when, and we talked about this earlier, 15 when there is sufficient basis to believe that some 16 component of defense-in-depth is no longer necessary. 17 Our argument, both here and in Contention 18 2, is that that point has not been reached with regard 19 to the long-standing NRC policy of never letting 20 containment over-pressure be used as a credit; rather, 21 we use the fact that we think there will be 22 containment over-pressure as a justification for going 23 ahead with the plant even though we're worried about 24 some other potential -- 25 ADMINISTRATIVE JUDGE RUBENSTEIN: I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
234 1 understand your concern with giving up margin in the 2 defense-in-depth or approaching the safety limit in 3 giving up margin from the operating envelope of the 4 plant, and I'm trying to focus in on the sequence of 5 events that we visualize, going back to the sequence 6 that I had postulated as the containment pressure got 7 too high because the NPSH went down when in fact the 8 containment sprays come into play and then suppress 9 the pressure a little bit to take into account 10 containment integrity. 11 So, on the one hand, it's a more abstract 12 argument. On the other hand, it's a very specific 13 argument about a sequence of events within the way 14 that, a, the PRA would look at it and the way the 15 regulations would look at it and the way you're sort 16 of presenting it, which is if this happens, if that 17 happens, these are the likely consequences. But one 18 has to have a disciplined mental approach to this, and 19 I'm not blaming on you about that -- 20 MR. ROISMAN: No, no, no, no. 21 ADMINISTRATIVE JUDGE RUBENSTEIN: You're 22 doing great. But I want to clearly understand it. 23 MR. ROISMAN: Okay. First of all, we put 24 as part of this contention and cited the ACRS on this 25 point that it would be inappropriate to apply PRA to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 www.neatrgross.com
235 1 this issue, because it's not at the point where PRA is 2 an appropriate step. We don't just use PRA all the 3 time. There has to be some level of improvement in 4 our knowledge before that happens. We've said we 5 don't have that. 6 Secondly -- give me one second. 7 (Pause.) 8 MR. ROISMAN: This really will get us back 9 or move us forward to a contention that we'll be 10 talking about in another few minutes, but -- 11 ADMINISTRATIVE JUDGE RUBENSTEIN: That's 12 sort of okay. We did group them because these are 13 common elements. 14 MR. ROISMAN: Right. Okay. But our 15 Contention Number 3, which deals with the earthquake, 16 this would be an example of where the earthquake, 17 which can occur in conjunction with a LOCA, that's one 18 of the design basis analysis, the earthquake could 19 cause failure in the isolation valves, and we pointed 20 that out in that contention. So here would be an 21 example -- 22 ADMINISTRATIVE JUDGE RUBENSTEIN: 23 Simultaneously with the ECCS failure. 24 MR. ROISMAN: I'm sorry? 25 ADMINISTRATIVE JUDGE RUBENSTEIN: NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.co=
236 1 Simultaneously with an ECCS failure. 2 MR. ROISMAN: No, no. No. ECCS -- that's 3 our whole point. The ECCS is working fine as long as 4 we can keep the NPSH-R up, but if we are losing NPSH-R 5 and the only place we can go to get it back is to 6 containment over-pressure, then without having planned 7 on having a multiple failure, we're having a multiple 8 failure. We're having a loss of coolant accident, 9 we're having the earthquake causing these isolation 10 valves to leak more than necessary, pressure in the 11 containment is going down, temperature in the torus is 12 going up, and we've got a need for more NPSH than 13 we've got, and the only way the Applicant is proposing 14 to meet that is take credit for containment over-15 pressure, which now in this hypothesis isn't there. 16 MR. WACHTER: Time. 17 ADMINISTRATIVE JUDGE RUBENSTEIN: I would 18 like someone -- I'm going to be cut off with you, but 19 I'd like an answer to the question. The sequence 20 you've just described shows that the core is still 21 getting flow and you're not relying on the ECCS 22 system. 23 ADMINISTRATIVE JUDGE KARLIN: Can we 24 perhaps raise that in another contention that you 25 have? NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
237 1 MR. ROISMAN: Yes. 2 ADMINISTRATIVE JUDGE KARLIN: It may come 3 up. It may come up again. Sounds like it will. 4 Thank you. Mr. Silberg? 5 MR. SILBERG: Yes. I think we've just 6 heard in the colloquy between Judge Rubenstein and 7 counsel for the Department the most obvious reason why 8 this contention is not acceptable. Basically, what 9 the State is saying is that, "We don't like the single 10 failure rule because there are circumstances where 11 that might erode defense-in-depth. The single failure 12 rule is, as it says, a rule. We meet the single 13 failure rule. 14 The State can postulate multiple lines of 15 failures, as can anyone, and at some point a plant 16 will get into trouble. That's why you have 17 regulations which tell you how far to go. What we 18 have done is meet the single failure rule. What the 19 Department is postulating is a containment failure. 20 In and of itself, that doesn't cause a problem. So 21 they simultaneously postulate a loss of coolant 22 accident. That together with a containment failure 23 also doesn't pose a problem because you have multiple 24 RHR heat exchanges, and so you're cooling the 25 temperature down. You don't need over-pressure. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
238 1 You can never get into the situation which
- 2 the State is postulating without getting into multiple 3 failure land, and that simply is beyond the rules that 4 we have to deal with in this case. And it may be that 5 the State would like to use different rules, but that 6 is not what we are here to deal with today.
7 ADMINISTRATIVE JUDGE KARLIN: Mr. Silberg? 8 I'm sorry. The single failure rule, is there a reg 9 we're talking about? 10 MR. SILBERG: Yes. Appendix A, Part 50. 11 ADMINISTRATIVE JUDGE KARLIN: Part 50, 35 12 and -- 13 MR. SILBERG: No, Part 50, Appendix A in 14 the definitions of the design criteria. 15 ADMINISTRATIVE JUDGE KARLIN: In the 16 general design criteria? 17 MR. SILBERG: That's correct. 18 ADMINISTRATIVE JUDGE KARLIN: Thirty-five 19 and 38, which they cite, I think, in Contention 1 -- 20 MR. SILBERG: Well, I'll get to that. 21 ADMINISTRATIVE JUDGE KARLIN: Yes, okay. 22 I mean is that the single failure rule you're 23 referring to? 24 MR. SILBERG: Yes. It's in the definition 25 section. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
239 1 ADMINISTRATIVE JUDGE KARLIN: Yes. 2 ADMINISTRATIVE JUDGE BARETTA: Are you, 3 though, taking the issue with the idea of defense-in-4 depth? Am I hearing that? 5 MR. SILBERG: No, we're not, and we think 6 we have defense-in-depth. What I'm trying to say is 7 you can have defense-in-depth and you can have 8 defense-in-depth. If we had built this plant with 9 walls with ten-foot thick instead of walls which are 10 however thick they are or put in three times the 11 number of pumps, we would have defense-in-depth. The 12 question is, once you do that, are you stuck with that 13 defense? Can you never erode the margins that you've 14 built into the plant? That would be counterintuitive, 15 it would be improper, it would be unsafe, because then 16 you're encouraging people not to build in margin. We 17 have margin. We are taking advantage of a very 18 limited amount of that margin with containment over-19 pressure. And to say that you can never give up 20 margin, which I think is the State's position, is 21 simply not consistent with the Commission's rules. 22 We have here -- aside from what may be the 23 merits of the issue that the State wants to raise, we 24 have the issue that the State has raised, and let me 25 get back because I think ultimately the Board has to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 www.nealrgross.oom
240 1 decide whether this contention meets the test for 2 contention. If you read it, it says, "Containment 2 .- 3 over-pressure credit violates General Design Criteria 4 35 and 38." Well, we're not subject to that, and 5 there's a footnote in two of their pleadings that 6 says, yes, but we're subject to the proposed general 7 design criteria. But nowhere else are the general 8 design criteria mentioned anywhere in their pleadings. 9 So what is it that supports that allegation? Nothing. 10 That in itself ought to be enough to warrant its 11 dismissal. 12 Then they go on to say and, therefore, 13 because we violated the GDC, we haven't demonstrated 14 that we won't create a significant hazard, as required 15 50.92. Well, we already talked about in the first 16 contention we discussed this morning, that no 17 significant hazards determinations are not issues for 18 a hearing. So that has to go aside. 19 So we really can't find any supporting 20 evidence that supports this contention if you look at 21 what they have written as opposed to what this 22 philosophical discussion is. And since the bases and 23 the supporting evidence don't support the allegation 24 that we've violated the general design criteria or the 25 draft general design criteria, the "therefore" part of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS ii (202) 234-4433 1323 RHODE ISLAND AVE., N.W. WASHINGTON. D.C. 20005-3701 www.neaIrgross.com
241 1 the contention which says no significant hazards or 2 providing adequate safety, there's nothing to build 3 on, there is no "there" there. 4 ADMINISTRATIVE JUDGE KARLIN: Are you 5 saying that you did not violate the general design 6 criteria because, among other things, they don't apply 7 to Entergy because Entergy was built before they were 8 promulgated? 9 MR. SILBERG: That's kind of a detail. 10 What I'm saying is the contention is not supported 11 because there's nothing in the contention that talks 12 about the general design criteria. 13 ADMINISTRATIVE JUDGE KARLIN: That's a 14 different -- okay. 15 MR. SILBERG: And we're not subject to 16 them. There is the footnote that says, but we are 17 subject to others. 18 ADMINISTRATIVE JUDGE KARLIN: Right. 19 MR. SILBERG: There are three bases that 20 the contention has, and none of those are appropriate 21 either. The first basis says that the portion of the 22 Reg Guide that purports to authorize containment over-23 pressure was not properly evaluated or approved the 24 ACRS, and that violates Section 29 of the Atomic 25 Energy Act. That's clearly incorrect. First of all, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON, D.C. 20005.3701 www.nealrgross.com
242 1 Section 29 only requires reviews by the ACRS if the 2 Commission requests, and there's no suggestion here 3 that the Commission requested a review of Reg Guide 4 192. So whether or not the ACRS reviewed it or not is 5 really irrelevant. 6 Second, the ACRS is advisory only, and if 7 the Staff review is not an appropriate topic for 8 litigation, the basis for a contention in a 9 proceeding, then certainly not the views of an 10 Advisory Committee. And in any event, that doesn't 11 relate -- the reply argues that we should draw an 12 inference that ACRS are concerned about containment 13 over-pressure, but that simply doesn't support the 14 basis, which is the ACRS evaluation and approval, and 15 what individual members may have stated doesn't match 16 up with the basis. And in any event, if the Staff 17 review, as I said, isn't a basis, then ACRS isn't a 18 basis. 19 The ACRS report also has no evidentiary 20 weight in the case, and we cited in our answer at 21 Footnote 14 the decisions that establish that 22 principle. 23 The argument that the ACRS was not fully 24 aware of what they were doing simply is pure 25 speculation on the Department's part. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 wwwnealrgross.com
243 1 ADMINISTRATIVE JUDGE KARLIN: Well, let me 2 jump ahead a little bit. I mean I understand their 3 argument seems to be, well, somebody snuck one by the 4 ACRS and so their approval really shouldn't count as 5 approval because they missed it. I'm not sure how 6 enthusiastic I am about that theory, but setting it 7 aside for a minute, I mean the question -- a couple 8 questions sort of come up is, as I understand it, 9 there was a situation where no credit was given for 10 containment over-pressure, and at some point the reg 11 guides, which are not regulations or requirements, 12 were changed to allow in certain circumstances credit 13 to be given for over-pressure. And that's what this 14 Reg Guide 1.82 Rev. 3 represents, and that's what 15 we're having all this argument about. But at some 16 point, this was changed so that credit is given for 17 over-pressure. 18 But reg guides are not requirements, and 19 you point that out and the Staff points that out. But 20 they then reply and say, "Yes, but Entergy is relying 21 on this reg guide in some way or using this reg guide 22 to justify what it's doing," and therefore while we're 23 not imposing that reg guide on you, if you are using 24 it and the Staff is using it, then cannot we not then 25 ask you to comply with it? NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.neaIrgross.com
244 1 MR. SILBERG: Well, we are not relying on 2 the reg guide. We have an application. We have filed 3 it, it contains the technical information which we 4 believe supports the validity of using containment 5 over-pressure. So the issue of whether we rely on the 6 reg guide to me is a red herring. The reg guide has 7 no legal status in this hearing. 8 ADMINISTRATIVE JUDGE KARLIN: Are you 9 using it? I mean the State says in its reply brief, 10 "If the Applicant and Staff stipulate they will not 11 use the existence of the reg guide essentially as 12 evidence to support their view on uncertainties, then 13 the whole issue becomes moot and we drop it out. 14 MR. SILBERG: Well, I can't state how the 15 Staff will use anything. All I can say is what -- 16 ADMINISTRATIVE JUDGE KARLIN: What Entergy 17 might do. 18 ADMINISTRATIVE JUDGE RUBENSTEIN: The reg 19 guide, of course, states that here is a method or a 20 methodology that if one uses gets an expeditious, 21 prompt staff review. When you did your calculations, 22 did you follow the guidelines of the reg guide or did 23 you do some sort of an independent calculation which 24 would be comparable and equally acceptable to the 25 Staff in arriving at its conclusion? NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
245 1 MR. SILBERG: I think we provided the K 2 information that the Staff wanted, which I think in 3 most instances matches what's in the reg guide, and 4 then we answered their questions. And if they asked 5 questions based on the reg guide, we really had no 6 choice but -- 7 ADMINISTRATIVE JUDGE RUBENSTEIN: I'mjust 8 trying to get a sense that if you used the reg guide 9 calculation or did you use an equivalent calculation? 10 MR. SILBERG: I don't know that there is 11 a, quote, "reg guide calculation." 12 ADMINISTRATIVE JUDGE RUBENSTEIN: Or the 13 outline. 14 MR. SILBERG: As I understand it, there is 15 no reg guide calculation to follow. I think there is 16 guidance in there, and I think we tried -- 17 ADMINISTRATIVE JUDGE RUBENSTEIN: You 18 followed the guidance. 19 MR. SILBERG: I think that's correct. 20 ADMINISTRATIVE JUDGE RUBENSTEIN: Okay. 21 So Judge Karlin's -- 22 MR. SILBERG: And if the Department wishes 23 to challenge our application, that's what this 24 proceeding is intended to do, not to challenge whether 25 a guidance document was reviewed by the ACRS or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
246 1 whether its members were snookered or whether -- 2 ADMINISTRATIVE JUDGE KARLIN: No. Right. 3 I mean I agree with that one, but the proposition 4 that, well, we're not here to impose or reg guides are 5 not regulations, they can't be imposed, but if you're 6 using it, if you're following it, then I think it 7 provides some criterion by which we can assess what 8 was being done. For example, if the reg guide, you're 9 using it or following it and it has prerequisites 10 which you don't meet or Entergy doesn't meet, then we 11 could say, well, wait a second, there may be an issue 12 here that they have raised, that they have tried to 13 raise, such as necessity and practically -- 14 MR. SILBERG: Frankly, I don't think that 15 would be any more of an issue than the fact that we 16 did meet the guidance, because by definition it's 17 guidance. But the key thing you have to do is look 18 back at the basis. What they said in Basis 2 was that 19 the reg guide is substantially indefensible because it 20 wasn't appropriately reviewed and because -- 21 ADMINISTRATIVE JUDGE KARLIN: Number 2 is 22 more contravene the State's requirements of defense-23 in-depth, aren't they? 24 MR. SILBERG: Right. 25 ADMINISTRATIVE JUDGE KARLIN: Number 1 has NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 www neargross.com
247 1 never been properly evaluated, and Number 3, or C, is 2 that the Applicant has failed to demonstrate that it's 3 necessary -- 4 MR. SILBERG: That's the necessary and 5 practical -- 6 ADMINISTRATIVE JUDGE KARLIN: -- and 7 that's the one I was focusing on. 8 MR. SILBERG: And as to that, we think 9 that, again, it's a compliance with guidance, if 10 there's any compliance at all. We answered their 11 questions. We think that they have ignored our 12 answers in what was necessary and whether it was 13 practical. 14 ADMINISTRATIVE JUDGE KARLIN: Well, I 15 think the answer you propose is sort of a totalogy, as 16 they characterize it, which is what does it mean when 17 the reg guide says it can only -- it should only be -- 18 containment over-pressure credits should only be 19 allowed when it's necessary. What does that mean? As 20 I understand what you all say, well, it's necessary 21 when we needed it. Well, that's a totalogy. And I'm 22 loathe that we should be getting into the economic 23 necessity, but what does necessary mean? 24 MR. SILBERG: Well, that answer was 25 addressed and we provided that information to the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
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248 1 Staff as to why we were adding it. Now, you can argue 2 that any of those questions ultimately are economic. 3 I think that's a faulty analysis. 4 ADMINISTRATIVE JUDGE KARLIN: Yes. No, 5 I'm not trying to -- 6 MR. SILBERG: Because you could solve any 7 problem by building another unit. But we did 8 specifically address in answer to the Staff's 9 questions why it was necessary and why we felt 10 obligated to use it. And the State has basically 11 ignored that response. We cited to that in our 12 answers, the State did not come back and challenge 13 what we said. 14 With respect to the defense-in-depth 15 issue, it is, I think, an interesting philosophical 16 problem, but it is not, I believe, a problem which 17 overturns the NRC's regulatory structure. If the 18 State believes that we should design the plant for 19 more than a single failure, it is, we think, a clear 20 challenge to the rule, and there are ways that they 21 can raise that as a challenge to the rule but not in 22 this context. We think that even in the situation 23 that they postulate, you cannot cause containment 24 failure and containment failure will cause everything 25 else just by saying it's so. And, basically, what NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234.4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
249 1 they say is there will'be -- I'm sorry. 2 ADMINISTRATIVE JUDGE KARLIN: He said two 3 minutes. 4 MR. SILBERG: Okay. There will be 5 containment failure. But if you postulate that, you 6 don't postulate everything else cascading from it 7 where those cascades don't follow. Failure of other 8 pieces of independent equipment, which they have not 9 recognized and which are discussed in the application 10 and would show that there is no problem with NPSH or 11 with containment over-pressure. 12 ADMINISTRATIVE JUDGE KARLIN: Well, if I 13 may, I mean we've only got a minute or so left, but 14 I'm looking at the reg guide at Section 2.111 and it 15 was cited in the briefs, and it talks about net 16 positive suction head and ECCS and containment heat 17 removal pumps. It states a general rule that, "ECC 18 and containment heat removal systems should be 19 designed so that adequate available NPSH is provided 20 and no increase in containment pressure would occur." 21 Then it says, "For certain operating BWRs for which 22 the design cannot be practically altered, conformance 23 with the previously stated general rule, no credit, 24 may not be possible. And in these cases, no 25 additional containment pressure should be included in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
250 1 the determination of available than is necessary to 2 preclude." 3 So it sounds like there's a general rule, 4 no credit for containment over-pressure, but in 5 certain circumstances where the design cannot be 6 practically altered and it's not possible to do it any 7 other way, then some small amount may be warranted. 8 And I guess they're saying there's an issue here as to 9 whether anyone has made any effort to demonstrate or 10 show that this cannot be practically altered. 11 MR. SILBERG: Well, they have filed an 12 exhibit which shows that we have done feasibility 13 analyses to show whether there were ways to accomplish 14 this. 15 ADMINISTRATIVE JUDGE KARLIN: Okay. 16 MR. SILBERG: They attached one of those. 17 It only was a part of the -- it was only one sequence. 18 They took that and extrapolated it as saying, "Well, 19 see it's feasible to go without containment over-20 pressure" -- 21 ADMINISTRATIVE JUDGE KARLIN: Right. 22 Right. 23 MR. SILBERG: -- ignoring the fact that 24 there were lots of other accident sequences that they 25 didn't address. We addressed this specifically in our NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com I...
251 1 brief, and we referenced the RAI responses where we 2 addressed the answers to these questions. 3 ADMINISTRATIVE JUDGE KARLIN: Okay. Is 4 that it? All right. Thank you. Thank you, Mr. 5 Silberg. Ms. Poole? 6 MS. POOLE: Thank you. I think we only 7 have one thing to add to what's in our papers, and 8 that is a comment in response to the State's reply and 9 a few things said here today in which we've gone back 10 and forth over what the ACRS did or didn't do with 11 respect to Basis 1. And I think while the Staff does 12 believe, as we stated in our pleadings, that the 13 discussions quoted related to the generic issue 14 ongoing with pressurized water reactors, I think, 15 though, I want to make the point that even if we take 16 as true that everything the ACRS said pertained also 17 to boiling water reactors, that's still not sufficient 18 to demonstrate a problem as to this application, at 19 this facility. And I think that's all we have to say 20 on that matter. We'll answer any questions the 21 Licensing Board may have. 22 ADMINISTRATIVE JUDGE KARLIN: Well, I 23 guess I have the same questions I was asking of 24 Entergy about the reg guide and use and reliance of 25 it. I mean the brief sort of hammered the point that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www nealqross.com
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252 1 reg guides are not regulations, they're not 2 requirements, they can't be mandated, certainly not by 3 this Board out of the blue, but if in fact they are 4 being -- a reg guide is being followed and relied 5 upon, as it appears it is in this application, is it 6 not fair and legitimate for us to understand and for 7 the State or Intervenor to raise a contention, well, 8 there's a problem that doesn't apply, it hasn't been 9 applied correctly, we didn't start using this reg 10 guide, apparently Entergy did, and now we're asking 11 whether it's properly applied, or they're asking that. 12 So having relied upon or used a reg guide, 13 is it then not legitimate legally for the Board to say 14 some sort of compliance with that is appropriate to 15 inquire into? 16 MS. POOLE: As a general matter, I think 17 that's correct. I would note that the Staff is not, 18 as a matter of fact, using the reg guide in its 19 review. We do refer to some criteria that are in the 20 reg guide, but the safety review that we're doing is 21 actually more or less the same basic review we 22 performed in connection with Generic Letter 9704, 23 assuring a sufficient net positive suction head. So 24 while we do look at the reg guide I think some, we're 25 not relying on its terms specifically for this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com I
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253 1 application. 2 ADMINISTRATIVE JUDGE KARLIN: Well, you're 3 not relying on it but Entergy seems to me, and of 4 course we don't know what the Staff is doing at this 5 point. You're still conducting your review, I guess. 6 MS. POOLE: That's correct. 7 ADMINISTRATIVE JUDGE KARLIN: But we do 8 know it appears that in Entergy the Applicant has 9 relied upon it or followed it or used it in some way. 10 MS. POOLE: I have brought to my attention 11 here a response to a request for additional 12 information. It's RAI SPSBC21. The question that was 13 asked was, "Verify that the proposed EPU amendment is 14 consistent with the guidance of Regulatory Guide 1.82 15 Revision 3. In addition, confirm that Reg Guide 1.82 16 Revision 3, or at least Section 2.1, will become part 17 of the VY NPS licensing basis if the proposed 18 amendment is approved." 19 In response to that RAI, and this is 20 Supplement 8, which was dated July 2, 2004, that's the 21 RAI response that I'm reading now, the Applicant 22 stated that -- I'm looking here -- that it is not 23 Entergy's intention that Reg Guide 1.82 Revision 3 24 will become part of the licensing basis. The 25 Applicant did say in that RAI response that it met the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 2344433 WASHINGTON, D.C. 20005-3701 www.neaIrgross.com
254 1 intent of Reg Guide 1.82 Revision 3, Section 2.1, and 2 we're still in the process of reviewing and 3 considering that response. 4 ADMINISTRATIVE JUDGE KARLIN: Okay. And 5 with regard to that Reg Guide and it talks about, as 6 I raised with Entergy, certain reluctance to use 7 containment over-pressure except in circumstances 8 where the design cannot practicably be altered. Has 9 there been any effort by the Applicant or by the Staff 10 to evaluate that? 11 MS. POOLE: No. We've not asked that 12 question of the Applicant. 13 ADMINISTRATIVE JUDGE KARLIN: Don't you 14 think it's relevant? If the Reg Guide itself says 15 it's not to be used except in circumstances where the 16 facility cannot be altered, then don't you think it's 17 some responsibility to look into that or do you just 18 apply it blindly without even thinking about that 19 prerequisite? 20 MS. POOLE: Well, since we're not relying 21 on every element of the Reg Guide, we haven't asked 22 the question yet. I think that we would not permit 23 use of containment over-pressure unless we were able 24 to find that the request met the requirements of 25 50.57(a) (3), that it was in the public health and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. www.nealrgross.com II (202) 2344433 WASHINGTON, D.C. 20005.3701
255 1 safety. 2 ADMINISTRATIVE JUDGE KARLIN: I'm sorry? 3 MS. POOLE: We would make the safety 4 findings regardless. 5 ADMINISTRATIVE JUDGE RUBENSTEIN: So you 6 don't look to the motivation. You look pretty 7 directly to is the calculation acceptable? 8 MS. POOLE: I think that's correct. 9 ADMINISTRATIVE JUDGE KARLIN: So you look 10 to the ultimate safety question without looking into 11 the reg guide itself as to whether or not it 12 qualifies? It sounds like someone was saying this 13 really shouldn't be done except in these limited 14 circumstances, and you're saying, "I don't care about 15 the limited circumstances I just want to look at the 16 bottom line of safety." 17 ADMINISTRATIVE JUDGE RUBENSTEIN: Or an 18 alternative way of saying it is you find the 19 calculation acceptable within the regulations. But 20 what thoughts do you have in terms of giving up the 21 margin on the safety limit? 22 MS. POOLE: Okay. If I could take a 23 moment to consult. 24 (Pause.) 25 MS. POOLE: Okay. We are still evaluating NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 www.neaIrgross.com
256 1 the application. I don't think we can really answer 2 your question directly, but I can give you something 3 that we have prepared that's a little statement on 4 when we would permit containment credit to be taken 5 for containment over-pressure. Would that help you? 6 ADMINISTRATIVE JUDGE RUBENSTEIN: Sure. 7 MS. POOLE: This is taken out of a letter 8 that was sent to the State on June 29, 2004. It's 9 publicly available. 10 ADMINISTRATIVE JUDGE KARLIN: Is it an 11 exhibit or something? 12 MS. POOLE: I don't believe that it is. 13 ADMINISTRATIVE JUDGE KARLIN: Okay. 14 MS. POOLE: It states, "The NRC Staff 15 allows such credit, that is credit for containment 16 over-pressure, to be taken only when the licensees' 17 analyses and justification for the proposed licensing 18 basis change demonstrate that there is reasonable 19 assurance that the credited pressure will exist for 20 the events, e.g., postulated design basis accidents, 21 station blackout, Appendix R, postulated fires, 22 anticipated transients without scram and a time period 23 for which the credit is required. Ensuring 24 containment integrity and devoiding overcooling of the 25 containment due to excessive use of containment sprays NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
257 1 are key considerations in determining whether the 2 credited pressure will be available during the 3 required time period." 4 ADMINISTRATIVE JUDGE KARLIN: So you 5 ignore the "cannot practicably be altered" criteria in 6 the Reg Guide. 7 MS. POOLE: We have. We have in the past. 8 ADMINISTRATIVE JUDGE KARLIN: The answer 9 is yes? 10 MS. POOLE: The answer is yes. 11 ADMINISTRATIVE JUDGE KARLIN: You ignore 12 that. Okay. Any other questions? Then I think we're 13 done on that contention. Thank you, Ms. Poole. 14 We're ready to proceed with the New 15 England Coalition's Contention Number 6, I believe, at 16 this point. Mr. Block, are you ready to proceed? 17 MR. BLOCK: Yes. 18 ADMINISTRATIVE JUDGE KARLIN: Okay. 19 Great. How much time do you think you want to reserve 20 for rebuttal? Twenty minutes? 21 MR. BLOCK: I'd like to do the same thing 22 Mr. Roisman did with whatever the bulk is that's left. 23 ADMINISTRATIVE JUDGE KARLIN: Okay. Fine. 24 MR. BLOCK: I'm sorry, I'm afraid Mr. 25 Shadis would like to do this, so we're going to -- NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234.4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comn
258 1 ADMINISTRATIVE JUDGE KARLIN: Mr. Shadis 2 is going to do the argument on this one? 3 MR. SHADIS: Yes. 4 ADMINISTRATIVE JUDGE KARLIN: All right. 5 That's fine. Just so long as basically one of you do 6 the argument on one of them. Thank you, Mr. Shadis. 7 MR. SHADIS: Thank you. I appreciate the 8 fact that the panel arranged presentation on these two 9 contentions given the similarity of the issues. 10 With respect to NRC's position, guidance, 11 regulation on net positive suction head and on taking 12 credit for containment over-pressure, we're confronted 13 here with a moving target and with no single position 14 emanating from NRC Staff. We just received a few days 15 ago a FOIA response dated October 7, and I can't enter 16 it into evidence except to say that it is voluminous 17 and the entirety of this voluminous document is a 18 discussion among NRC Staff as to how to answer the 19 State's letter of December 8 on the question of net 20 positive suction head and containment -- taking credit 21 for containment over-pressure. 22 What I found in review of it is that in 23 one draft version of the letter, the Staff had 24 included a legal position, and in the final letter the 25 legal position was eliminated. And it wasn't a case NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005.3701 www.nealrgross.com
259 1 of substituting another legal position. It was simply 2 eliminated. And I'd have to guess that the motive was 3 that they didn't want to make a commitment on it. But 4 in any case, we would much appreciate the opportunity, 5 perhaps even tomorrow if it could be scheduled, to 6 present to this Panel on the contents of that FOIA 7 response, and if not, to be able at least at some 8 future point to submit it and then the other parties 9 of course can have review and comment. But we think 10 it's relevant and it's essential to an understanding 11 of what NRC's position, regulatory position is and how 12 it has evolved on this particular point. 13 With that, I would like to -- 14 ADMINISTRATIVE JUDGE RUBENSTEIN: By NRC 15 position, do you mean the safety evaluation report or 16 their regulations or their GDC or -- 17 MR. SHADIS: Yes. 18 ADMINISTRATIVE JUDGE RUBENSTEIN: -- or 19 their approval of the current licensing basis? 20 MR. SHADIS: Pick one of the above. Let 21 me try to explain what I intend by that, and I think 22 we go back to the discussion that you were having 23 earlier as to whether or not the regulatory guide is 24 binding or not and it seemed to concurrence that it 25 was not binding; it was, after all, guidance. But K> NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 ww.neargross.com
260 1 - then what part of the regulation is it guidance to 2 perform under? We're looking at the general design 3 criteria for an answer. 4 And what we're finding, by the way, as was 5 pointed out by Entergy's attorney, is that Vermont 6 Yankee was licensed before I think even the draft 7 general design criteria were completed. And it was 8 licensed based on best assessment at that time that it 9 was safely designed and constructed. Now, our problem 10 is trying to find out what criteria, what regulation 11 governs, what specifically regulations and criteria 12 must this plant be in compliance with? 13 So far in our search to get this 14 information, we've been given what I could only term 15 a grand runaround by NRC. We have not been able to 16 nail down what this plant's design basis is in terms 17 of its conformance with what's standard. We can't 18 find it. Now, that's essentially where we're coming 19 from now. 20 Mr. Blanch, in his initial declaration -- 21 and by the way, we agree very strongly that the 22 declarations and the contentions need to be taken 23 together when considering basis. That statement, I 24 think, was made earlier from a couple of these tables. 25 We're there, we agree with that. In Mr. Blanch's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
261 1 statement, he has cited not only NRC regulations and 2 the design criteria, he has also cited Vermont Yankee 3 documents. I think, broadly, I must -- we're not 4 going to get ourselves bogged in minutia, I hope -- I 5 think, broadly, we dispute that allowing for 6 containment over-pressure will maintain -- well, will 7 allow for assurance of public health and safety. And 8 this is, in essence, the underlying support statement 9 for Vermont Yankee's entire license amendment 10 application. And, flatly, we dispute that. It's 11 evidence throughout Mr. Blanch's testimony, throughout 12 his declaration, both the initial declaration and the 13 one filed in support of our reply. 14 So I think, and I'm just going to point 15 out to you, that all of the criteria for acceptance of 16 our contention, all of the requirements that are 17 contained in the Code of Federal Regulations have been 18 met. I'm going to shut up, I think, at this point, 19 but I'd like to reserve a few minutes for a response 20 later on. Thank you. 21 ADMINISTRATIVE JUDGE KARLIN: All right. 22 Fine. 23 MR. SHADIS: And I'd also be glad to 24 answer any of your questions. 25 ADMINISTRATIVE JUDGE KARLIN: Any NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON, D.C. 20005.3701 wwwnealrgross.com
262 1 questions? No? Go ahead. 2 ADMINISTRATIVE JUDGE RUBENSTEIN: I'm 3 trying to understand for help with the record you're 4 having difficulty with the fact that their licensing 5 basis is not up to date. 6 MR. SHADIS: Not only is it not up to date 7 but it's not up to date in terms of 10 CFR 50.54 or 8 any of the other reporting requirements, 50.71 I think 9 there's a reporting requirement. 10 ADMINISTRATIVE JUDGE RUBENSTEIN: And you 11 tried to have -- 12 MR. SHADIS: We can't find it. 13 ADMINISTRATIVE JUDGE RUBENSTEIN: And you 14 tried -- okay. My next question was, and it's not 15 exactly what the licensing basis is to you, 16 transparent. 17 MR. SHADIS: Pardon me? 18 ADMINISTRATIVE JUDGE RUBENSTEIN: It's not 19 transparent to you or obvious to you what the 20 licensing basis is, because you can't find it. 21 MR. SHADIS: That's correct. It's not 22 transparent nor is it coherent, nor is it together in 23 any one place where it can be readily accessed. 24 ADMINISTRATIVE JUDGE RUBENSTEIN: And 25 you've tried to have this dialogue by reading the NRC NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 www.nealrgross.com
263 1 documents to see if you could see in the specific 2 instance of the Entergy power uprate you've tried to 3 see what the old licensing basis is and compare it to 4 the new licensing basis or you just don't like the old 5 licensing basis? 6 MR. SHADIS: We're trying to find out what 7 the licensing basis is today and what regulations or 8 criteria the Plant is supposed to be in conformance 9 with today. And that is not accessible now. Our 10 experts, Mr. Blanch and Mr. Gundersen, filed a 2206 11 Petition and Mr. Dyer, who is Executive Director of 12 Operations, I believe -- 13 ADMINISTRATIVE JUDGE RUBENSTEIN: I think 14 he's Director of Nuclear Reactor Regulations. 15 MR. SHADIS: Pardon me? 16 ADMINISTRATIVE JUDGE RUBENSTEIN: I think 17 he's Director of Nuclear Reactor Regulations. 18 MR. SHADIS: Fine. Thank you. I 19 appreciate that. He answered, I guess it's the 20 Director's decision really, but he answered with a 21 letter that said, "As long as there is another venue 22 for this, that's where you should take it," and he 23 gave us a letter ten days or less before the -- excuse 24 me, he gave Mr. Blanch and Mr. Gundersen a letter 25 approximately ten days, I think -- dated approximately NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.corn
264 1 ten days before the close of the period of Notice of 2 Opportunity before contentions were due and said, in 3 essence, "Take it to the Atomic Safety and Licensing 4 Board, and if they don't like it, then we'll take it 5 up at some future point." This is just part of what 6 I would offer as an example of being given the 7 runaround. 8 ADMINISTRATIVE JUDGE RUBENSTEIN: In 9 regard to the content of your contention, you're 10 basically saying, "I haven't been able to look at the 11 documentation for this specific licensing action at 12 issue, and I find it -- or I've looked at it and I 13 find it to be inadequate." What is your position on 14 the specific licensing issue? 15 MR. SHADIS: That goes really to two of 16 our other contentions -- 17 ADMINISTRATIVE JUDGE RUBENSTEIN: Okay. 18 You're going to get to them later. Okay. 19 MR. SHADIS: -- that have to do with the 20 documentation of design basis, with the availability 21 of information, specifically with recordkeeping. This 22 particular contention really has to do with the 23 failure to preserve defense-in-depth and the ignoring 24 single failure criteria. 25 You know, we understand and appreciate NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 www.nealrgross.com
265 1 fully the conversation here that defense-in-depth was 2 a philosophical approach, but I can attest from having 3 attended licensing hearings and pre-licensing hearings 4 and public meetings conducted by NRC going back to the 5 licensing era of this plant. I didn't attend any for 6 Vermont Yankee but I was certainly there for the ones 7 at Maine Yankee. And defense-in-depth was the notion 8 that the NRC Staff trotted out in each and every one 9 of those proceedings to assure the public that there 10 would be adequate protection of the public health and 11 safety, and they always, always, always talked about 12 the redundancy and defense-in-depth. And from our 13 point of view, if nothing else, it certainly is a 14 social contract with the people who had no choice but 15 to allow the licensing of Vermont Yankee. They were 16 told defense-in-depth was the basis. 17 ADMINISTRATIVE JUDGE KARLIN: May I ask 18 this, and coming at this from a legal perspective -- 19 MR. SHADIS: Certainly. 20 ADMINISTRATIVE JUDGE KARLIN: -- maybe 21 it's harder for you to help us answer this question, 22 but my question, I think I've talked with Entergy 23 about it also, was your contention ignores the -- 24 Contention 6 said, "Entergy ignores single failure 25 criteria and violates the basic tenets of reactor NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
266 1 safety." As a legal approach, where is it written? 2 Point me to a regulation that's binding on them that 3 you can say they violated and help me out here. 4 Because if it's something someone said or is repeated, 5 certainly that's something the engineers and the 6 technical people will talk about, and it's a social 7 contract perhaps. But if it's a legal matter, I'd 8 like to cite chapter or verse and understand that. 9 MR. SHADIS: Thank you. I'd have to go 10 back to -- 11 ADMINISTRATIVE JUDGE KARLIN: Yes. And 12 you're not a lawyer, so I'm asking the wrong question. 13 MR. SHADIS: No, no, no. I like that 14 question. I'd have to go back through Mr. Blanch's 15 declarations, but he does cite the general design 16 criteria. And -- 17 ADMINISTRATIVE JUDGE KARLIN: Well, I see 18 the General Design Criteria 21, as was mentioned here, 19 has a definition of single failure. 20 MR. SHADIS: Yes. 21 ADMINISTRATIVE JUDGE KARLIN: The 22 definition is not a legal requirement; it's just a 23 definition. 24 MR. SHADIS: Yes. And I think that in the 25 conversation earlier Criterion 34, 35 were mentioned NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
. *;-; A, . . , . ,.- . : .
267 1 as the location for these definitions. 2 ADMINISTRATIVE JUDGE KARLIN: Thirty-five 3 and 38, yes. 4 MR. SHADIS: And I don't know what law is 5 if it isn't definitions and principles. 6 ADMINISTRATIVE JUDGE KARLIN: Okay, 35 and 7 38. Yes, that's -- 8 MR. SHADIS: No, no. I'm sorry. It's 34 9 and -- 10 ADMINISTRATIVE JUDGE KARLIN: Well, 11 actually, the - - 12 MR. SHADIS: -- 34, 35 and 41. 13 ADMINISTRATIVE JUDGE KARLIN: And 41. 14 Okay. 15 MR. SHADIS: And, again, there it depends 16 on whether we're talking the new criteria or the draft 17 criteria. 18 ADMINISTRATIVE JUDGE KARLIN: Right. 19 Okay. Thank you. Any more questions? 20 ADMINISTRATIVE JUDGE RUBENSTEIN: No. 21 Thank you. 22 ADMINISTRATIVE JUDGE KARLIN: Okay. 23 Whatever time is left for him we'll reserve that for 24 rebuttal. 25 MR. SHADIS: Thank you. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234.4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
268 1 ADMINISTRATIVE JUDGE KARLIN: Mr. Rosinski 2 for Entergy? 3 MR. ROSINSKI: Thank you, Mr. Chairman. 4 In Coalition Contention 6, they make several 5 allegations or assertions when their contention is 6 coupled with the basis and the declarence statements. 7 ADMINISTRATIVE JUDGE KARLIN: Would you 8 please speak up a little bit? 9 MR. ROSINSKI: I'm sorry, I'll bring you 10 closer. The first allegation that the Coalition makes 11 is that the calculation VYC 808, the same calculation 12 we were discussing earlier, failed to analyze the 13 consequences of additional dose to control room and 14 site boundary -- people in the control room to site 15 boundary. That is demonstrably incorrect, and, again, 16 without repeating what we've said in our briefs, I'd 17 just point the Board to the application which 18 explicitly states that the doses at EPU remain, quote, 19 "below established regulatory limits," end quote. In 20 fact, the application or the safety analysis attached 21 to the application contains two tables of the current 22 and EPU calculated doses and the applicable federal 23 limits, including the doses in the control room and at 24 the site boundary. 25 The Coalition also asserts that VYC 808 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 wwwnealrgross.com
269 1 failed to address the ability to cool the reactor 2 core. Indeed, the application specifically states 3 that the ability to maintain -- core geometry for 4 cooling is maintained in that the requirements of 10 5 CFR 50.46, which explicitly includes maintaining a 6 core geometry amenable to cooling will continue to be 7 met. 8 The Coalition also asserts that any single 9 active or passive failures of the containment or torus 10 are not addressed in VYC 808. And I guess to 11 highlight the contradiction to that assertion, if we 12 look specifically at the Coalition's assertion that 13 Applicant can show only one example of a single 14 failure in the application, which is in their reply at 15 41, it contradicts its own declaration in its original 16 petition that, quote, "Many single failures of ECCS 17 components, paren, pumps, diesel generators, valves, 18 motors, et cetera, have been addressed." And that's 19 at the declaration on Page 2. And they cite VYC 808 20 for the reference to that quote. 21 ADMINISTRATIVE JUDGE KARLIN: Now, where 22 is that declaration? Is this the Gundersen 23 declaration we're talking about? 24 MR. ROSINSKI: I believe this is Mr. 25 Blanch's declaration. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON. D.C. 20005.3701 www nealrgross.corn
270 1 ADMINISTRATIVE JUDGE KARLIN: Oh, 2 Blanch's, I'm sorry. Thanks. 3 MR. ROSINSKI: So right there is a 4 contradiction within their own paperwork about what 5 was performed for single failure. 6 I'll also point out that there is in fact 7 no requirement to provide an exhaustive narrative of 8 every possible single failure for plant equipment. 9 Vermont Yankee properly identified and analyzed in the 10 application the effects of the most limiting single 11 failure, which is loss of an entire RHR train under 12 the conditions postulated in the analysis, because it 13 reduces the heat removal from the containment by 50 14 percent, which is the root of what we've been talking 15 about all morning. 16 Again, for purposes of this hearing, it is 17 significant that the Coalition has not challenged that 18 this is the most limiting single failure or proposed 19 another more limiting single failure. 20 The Coalition also has alleged that VYC 21 808 has failed to address recent failures of BWR 22 containment valves and has cited a single license 23 event report from a plant in Georgia without 24 explaining at all any connection between that plant 25 and Vermont Yankee, the particular failure discussed NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234.4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com 11
271 1 in that LER and any applicability to Vermont Yankee or 2 how that failure would impact, if at all, the power 3 uprate at Vermont Yankee. 4 And, finally, the Coalition asserted that 5 VYC 808 fails to show compliance with Reg Guide 1.174. 6 I think we covered that pretty well about how reg 7 guides are not regulations and therefore compliance 8 with a reg guide is not a legal basis for a 9 contention. 10 ADMINISTRATIVE JUDGE KARLIN: Right, but 11 we have the same issue as before, that if you're 12 relying upon it or using it in somehow your 13 application, can it not be said that you need to try 14 to follow it or if not follow it, explain why you 15 shouldn't have to? 16 MR. ROSINSKI: I think the right answer to 17 that question is that there is a time when compliance 18 with a reg guide becomes legally enforceable and that 19 was alluded to in the Staff's answer to your previous 20 question when it is incorporated into the licensing 21 basis. Up until this time, Entergy, Vermont Yankee 22 and I believe all licensees are working with the 23 Staff, negotiating positions, demonstrating bases and 24 acceptability and methods. Whether it fully follows 25 every nit and twittle in a reg guide or not is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 www.nealrgross.corn
272 1 immaterial until the point at which it's accepted and 2 put into the licensing basis. If it's made a 3 commitment in a licensing -- 4 ADMINISTRATIVE JUDGE KARLIN: Well, I 5 understand that if you put something into a license, 6 then it becomes legally enforceable, if you put it 7 into their license. But at this point, you are 8 applying for a license or an amendment to the license 9 and you're applying perhaps based on a particular reg 10 guide, in this case we're talking about 1.174, I 11 guess. And all we have or all the State and the 12 public has is the application and you've relied upon 13 a particular reg guide to achieve some relaxation of 14 a standard, let's say, for the moment or credit for 15 containment over-pressure and they raise questions 16 that you don't qualify for that reg. 17 Now, I understand this is not that reg 18 guide. This is the defense-in-depth reg guide instead 19 of 1.182 Rev 3, but principally it's the same, a 20 reliance in an application. That's all the public has 21 to look at. They seek or someone seeks to raise an 22 issue in a contention that you don't qualify for that 23 particular requirement, and you're saying, "Well, we 24 can't look at it until somebody puts it into a filed 25 license, which we are maybe part of the process, and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 2344433 WASHINGTON, D.C. 20005-3701 www.nealhgross.com
273 1 then and only then does it become enforceable." 2 MR. ROSINSKI: No. 3 ADMINISTRATIVE JUDGE KARLIN: We have to 4 ignore it until then? 5 MR. ROSINSKI: No, sir. That's precisely 6 not what I meant to say. It becomes enforceable 7 similar to a regulation at that point. It should be 8 considered. I believe in your question I heard what 9 I was trying to say, except I would take issue with 10 the word, "reliance," on a reg guide. We are not 11 relying on the reg guide. We are using the work that 12 went into the reg guide and using the methodologies 13 that have been determined to be appropriate when we 14 concur that they appropriate for our plant. 15 These are reg guides for the entire 16 industry, so I don't believe it is unusual at all that 17 you will use a reg guide where you believe it is the 18 best thing to do for public safety at your facility 19 and then the application contains the explanations of 20 why we used certain portions, why we did not use 21 certain portions, and that is the appropriate 22 balancing that the public as well as the Board should 23 make. It is not a commitment from a user of a reg 24 guide as all or nothing. If the explanations aren't 25 sufficient, I believe that's the issue before the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 www.neaIrgross.com
274 1 Board. 2 ADMINISTRATIVE JUDGE KARLIN: Is the kind 3 of cherry-picking of the reg guides for those portions 4 that you like versus those that you don't like? 5 MR. ROSINSKI: I don't believe it's an 6 issue of like. I believe it's an issue is it the best 7 way for a particular licensee to ensure a safe and 8 efficient use of the reg guide for their facility. 9 ADMINISTRATIVE JUDGE KARLIN: Okay. Thank 10 you. Any questions? 11 MR. ROSINSKI: And I would just like to 12 point out, as I believe we have in our brief, that the 13 particular reg guide referenced here, 1.174, is not 14 applicable to EPU. It is a completely different reg 15 guide, although just to put that on the record that 16 this explanation that we've been talking about is more 17 general because this particular reg guide, we submit, 18 is completely not applicable to this issue. 19 ADMINISTRATIVE JUDGE KARLIN: Okay. Thank 20 you. Ms. Poole? 21 MS. POOLE: Thank you. Just one thing or 22 a few things to add, responding to Mr. Blanch's 23 supplemental affidavit on this contention. 24 First of all, in this affidavit, Mr. 25 Blanch states that in their answer, the staff has NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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275 1 concluded that Entergy analyzed one single failure, 2 that is sufficient. 3 I want to repeat again, just for the 4 record, that we didn't take any positions on the 5 merits of this application. And we will not do so 6 until the appropriate time. It was merely as part of 7 a legal argument. 8 I want to say also that this affidavit is 9 in error, we think, as a matter a law. Mr. Blanche 10 cites General Design Criteria 34 and 35, which as we 11 discussed earlier, aren't directly applicable to the 12 facility at issue. 13 The relevant criteria in this Draft GDC 14 41, which can be found at 32 Federal Register 10,213 - 15 - that's an old one, July 11, 1967 -- that criterion 16 states Engineered Safety Features Performance 17 Capability. That's the title. 18 Engineered safety features such as 19 emergency core cooling and containment heat removal 20 systems shall provide sufficient performance 21 capability to accommodate partial loss of installed 22 capacity and still fulfill the required safety 23 functions. 24 At a minimum, each engineered safety 25 feature shall provide this required safety function NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005.3701 wwwnrealrgross.com
276 1 assuming a failure of a single active component. 2 It's clear from the language of the 3 criterion that the -- 4 ADMIN. JUDGE KARLIN: Can you give me the 5 Fed Req cite on that? 6 MS. POOLE: Oh, sure. It's 32 Fed Reg 7 10,213, July 11, 1967. 8 ADMIN. JUDGE KARLIN: Okay. It goes 9 before Lexus-Nexus, I think even -- 10 MS. POOLE: I brought one copy. And if we 11 can find a copy machine -- 12 ADMIN. JUDGE KARLIN: No, that's fine, I 13 can get it. 14 MS. POOLE: -- I can make copies. 15 But that criterion on its face doesn't 16 support an argument that all single failures must be 17 addressed. Therefore, this supplement doesn't cure 18 the defect of the contention in our view. 19 Also, I was going to make the same point 20 that Reg Guide 1.174 does apply here because this is 21 not a risk-informed submittal. 22 I think the only other thing we would say 23 is I think that the staff would oppose any 24 presentation with respect to the FOIA request in the 25 context of this pre-hearing conference only because NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 vw.nealrgross.com
277 1 the FOIA request material doesn't pertain to the 2 issues we're discussing here, the admissibility of the t; 3 contentions in this proceeding. So perhaps at another 4 time. 5 That's all we have. We'll answer any 6 questions that you might have. 7 ADMIN. JUDGE KARLIN: Thank you. All 8 right. I don't think we have any questions. 9 Five minutes' rebuttal, Mr. Block? 10 Anything you want -- oh, I'm sorry, Mr. Shadis? 11 MR. SHADIS: Thank you, thank you, I 12 appreciate that. 13 Yes, I appreciate the comments of Ms. 14 Poole with respect to the question on Mr. Blanche's 15 citing one single failure in one declaration and 16 multiple single failures in another declaration. And 17 what happened there, I think, was that counsel for 18 Entergy didn't quite quote all that directly. 19 What Mr. Blanche says in his declaration 20 on page 2 of the October 11th declaration is that in 21 their answer, staff or its counsel concluded that 22 because Entergy analyzed one single failure, that is 23 sufficient. And that is a -- in our view, a 24 legitimate reading of the staff's reply. 25 The staff has now asserted that that is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. II (202) 2344433 WASiINGTON, D.C. 20005-3701 www.nealrgross.com
278 1 not correct but it certainly, on reading it, one could 2> 2 get that. So it is a valid statement from Mr. 3 Blanche. And as our -- 4 ADMIN. JUDGE KARLIN: By valid, you mean 5 honest mistake? 6 MR. SHADIS: Well, if it is a mistake. 7 ADMIN. JUDGE KARLIN: Yes. 8 MR. SHADIS: I mean it's open to 9 interpretation, I think. 10 ADMIN. JUDGE RUBENSTEIN: Is it confusion 11 related to a single failure in a given engineered 12 safety feature as opposed to wanting to look at 13 multiple engineered safety features or systems? Is 14 that where it is coming out? 15 MR. SHADIS: I can't answer that question. 16 And if you'll give me a moment to speak with my 17 expert, perhaps we can. Mr. Blanche is in the same 18 place I am. I don't think we understood your 19 question. 20 ADMIN. JUDGE RUBENSTEIN: Well, in reading 21 your paper, I sort of got the impression that while 22 the regulation requires examination of a single 23 failure which could defeat the purpose of an 24 engineered safety feature, you were concerned that 25 they didn't look at many systems, multiple systems so NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234.4433 WASHINGTON, D.C. 20005-3701 www.neaIrgross.com
279 1 to speak, each one postulating a single failure in all 2 the different systems. 3 MR. SHADIS: I think the question was 4 raised earlier by Entergy's counsel as to whether or 5 not each and every possible single failure needs to be 6 looked at. And our reading of the regulation says 7 that loosely all possible single failures need to be 8 looked at. 9 And I don't know about the each and every 10 aspect of that. But certainly more than one and more 11 than two or three. You know the most limiting 12 situations need to be looked at so -- and we don't 13 agree either that the RHR scenario that was presented 14 earlier, the residual heat removal scenario that was 15 presented earlier by Entergy's counsel, is the most 16 limiting failure to be considered. 17 For example, a more limiting failure would 18 be failure of the containment with a single train of 19 the RHR out of service. And it is our belief that 20 this is allowed by the tech specs. So, you know, that 21 would be an example of one that should be looked at 22 certainly. And would be a more limiting one. 23 MR. WACHTER: Two minutes. 24 ADMIN. JUDGE KARLIN: Two minutes, okay. 25 ADMIN. JUDGE RUBENSTEIN: So you are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON, D.C. 20005-3701 www.neaIrgross.com
280 1 hypothesizing that one train is out for maintenance? 2 MR. SHADIS: Pardon me? 3 ADMIN. JUDGE RUBENSTEIN: You are 4 hypothesizing that one train of the RHR is out for 5 maintenance? Or down? 6 MR. SHADIS: It could be out for 7 maintenance or for some other reason non-functional, 8 sure. 9 ADMIN. JUDGE RUBENSTEIN: So then the 10 single failure criteria would be applied to the 11 remaining train? 12 MR. SHADIS: Pardon me? 13 ADMIN. JUDGE RUBENSTEIN: The single 14 failure criteria would be applied to the analysis of 15 the second train? But one has to assume that one 16 train is out -- 17 MR. SHADIS: Yes, of the containment? 18 ADMIN. JUDGE RUBENSTEIN: -- of the RHR 19 system is what we're talking about. 20 MR. SHADIS: Well, excuse me just a 21 minute. Let me see if we can get you an answer to 22 that. 23 My understanding of it is that the last 24 failure in this train of events would be the torus 25 failure. NEAL R. GROSS K> COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
281 1 ADMIN. JUDGE RUBENSTEIN: Okay. Thank 2 you. 3 MR. SHADIS: Or possibly an isolation 4 value. 5 ADMIN. JUDGE RUBENSTEIN: Thank you. 6 MR. SHADIS: Yes, I think that basically 7 concludes -- except to say that, again, that the 8 single failure question is mentioned specifically in 9 Criterions 34 and 35 very directly. It's plain 10 English, plain reading. 11 And I guess we're going to get to one of 12 our other contentions sooner or later but, you know, 13 if Vermont Yankee is not obliged to comply with that, 14 what are they obliged to comply with? We can't find 15 it. 16 Thank you. 17 ADMIN. JUDGE KARLIN: Okay. Thank you. 18 I think we're at a reasonable breaking point. I 19 appreciate the efficiency with which we've been able 20 to get those two contentions. 21 I guess we'll be starting on State 22 Contention 5 -- 23 MR. ROISMAN: No, 3. 24 ADMIN. JUDGE KARLIN: Oh, I'm sorry, 3, 25 yes -- 5 is -- that's -- when we return. Let's take NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. II (202) 234-4433 WASHINGTON. D.C. 20005-3701 www.neafrgross.com
282 1 a-- 2 MR. ROISMAN: Five won't take long. 3 ADMIN. JUDGE KARLIN: Five won't take 4 long. Okay. If necessary, we have down here. I was 5 moving too quickly. 6 So let's return in about ten minutes and 7 continue with that. 8 Thank you. 9 (Whereupon, the foregoing matter went off 10 the record at 3:27 p.m. for a brief recess.) 11 JUDGE KARLIN: Thank you. Back on the 12 record. I think we're at State Contention 3? 13 MR. ROISMAN: Yes, Mr. Chairman, and I'll 14 follow the protocol which you might note has failed 15 totally to get me any rebuttal, but I've been 16 answering questions that are of interest to the Board. 17 In some ways, contention 3 pulls together 18a several threads of things that we've been talking 19 about in the other contentions, but let me start by 20 identifying the things that we don't have any 21 disagreement about, at least judging by what the 22 answers say. There's no disagreement that using 23 contention over-pressure to meet NPSH requirements is 24 a design basis change or sometimes called a licensing
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283 1 it is a change which is voluntarily implemented by the 2 Applicant. This is not a case of a back fit where the K-, Of9 3 Staff has required the Applicant to do something and 4 when the Applicant does it, it turns out that they 5 have a problem and they need to take containment over-6 pressure which is the way we think that word "need" or 7 "necessary" was intended in the Reg. Guide. 8 The essence of the position here and I 9 want to be very clear because I think the Applicant 10 appears to misunderstand what we're saying. The 11 essence of our reference to the source term Reg. Guide 12 that the Staff put out is obviously not to say that 13 the source term is an issue here in the uprate. It is 14 to use it as authority for the proposition that it 15 does not require a violation or change in NRC 16 regulations to require a company to have to conform to 17 new design criteria when they voluntarily change 18 something in their design or licensing basis. It's an 19 authority for a proposition. 20 Now there is no regulation, no statute and 21 as far as we can tell no case law in front of the NRC 22 that says either that when you make a change 23 voluntarily and you implicate systems which would be 24 looked at differently today than they were looked at 25 in the past, you may not be required to look at them NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
284 1 or you may look at them. It's an open issue. It's an 2 issue of first impression. 3 JUDGE KARLIN: But isn't there -- is this 4 the first time in history that an Applicant has 5 voluntarily sought a change in this licensing basis? 6 I suspect not. But it would seem to undermine the 7 entire backfit rule that every time an Applicant 8 voluntarily requested a change in its licensing basis, 9 all of a sudden all of the new regulations would 10 suddenly apply to it. 11 MR. ROISMAN: The backfit rule -- 12 JUDGE KARLIN: My question is although 13 there may be no case law one way or the other, isn't 14 there sort of a practical precedent that this is not 15 the way it's been done for the last 3 years? 16 MR. ROISMAN: Let me answer that in two 17 ways. The backfit rule, when you read the rule and 18 when you look at the history had led up to that rule, 19 is a rule that was put in place to deal with something 20 that at least in the old days we used to call 21 ratcheting and ratcheting was considered to be really 22 evil. And what it meant was is that the Staff would 23 give you permission to do something and then on second 24 thought would come back and say you know, we want you 25 to do it differently. We learned something new and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
285 1 we're going to tighten it up a little bit on you. So 2 the backfit -- 3 JUDGE KARLIN: EPA does that all the time. 4 MR. ROISMAN: Absolutely. EPA does it all 5 the time without a backfit rule. And NRC adopted the 6 backfit rule to say okay, we understand sometimes the 7 Staff is going to feel that this is necessary, but 8 you're going to have to go over some hurdles before 9 you get to force one of these backfit on people and 10 when you do, you're not going to be able to force them 11 to now comply with all the current new stuff that 12 you've got. You're forcing this on them. That's how 13 we got, we believe, and we've submitted some basis to 14 believe this. That's how we got to Reg. Guide I.A2 15 Rev. 3, was because that recognition became obvious 16 when the NPSH fixes that people have been talking 17 about here were imposed by the Staff on Applicants and 18 people had to do certain things to meet them. 19 That's different than when an Applicant 20 comes in and says, and particularly, I don't want to 21 have to answer the generic question would ever design 22 basis require this? Certainly every design basis that 23 changes the operating level of the reactor to a 24 substantial degree, 20 percent certainly a substantial 25 degree. That's done voluntarily, not because the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 www.nealrgross.corn
286 1 Staff imposed something on you that forced you to do 2 that. Under that circumstance there's good reason, if 3 there's a linkage between that uprate and the design 4 criteria that you think the newer ones should be used, 5 why you should have to comply with the new design 6 criteria. 7 JUDGE KARLIN: Has that happened in the 8 other uprates? I mean there's been quite a number of 9 uprates that have been approved. 10 MR. ROISMAN: That's right, and I am not 11 aware that that has happened. 12 JUDGE BARATTA: Could you specify what 13 that good reason is? 14 MR. ROISMAN: Yes, okay. First of all, I 15 think the Staff does it to some extent in the Reg. 16 Guide that we cite 1.18, 1.182. It's unfortunate that 17 we have two Reg. Guides that are only .100 apart. 18 Anyway, the good reason is this, that now that this 19 plant is going to operate at a higher power level, 20 20 percent higher, if there are aspects of this new 21 operation which call into question compliance with 22 design criteria, it's as though we are starting again 23 with the plant. I mean this is as though you heard 24 Mr. Silberg say well, one option would have been we 25 could have built another plant right next to this one NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
287 1 and gotten the additional power. Well, in a way 2 that's what they've done. They're building a new 3 plant in the place where the existing plant is to 4 operate 20 percent more power than the old one did. 5 Today, we would require, if a company came 6 in and for the first time said we want to have a plant 7 that's roughly 625 megawatts of power, the plant would 8 have to meet today's standards. So if this utility is 9 bringing this in and if we can show and we can see we 10 must demonstrate that to you, at least show that 11 there's a basis to believe that, that this new uprated 12 level implicates systems for whom new valuation 13 standards should be used, then it's appropriate to use 14 it in this case. 15 JUDGE KARLIN: When this happens in the 16 environmental field there would be the grandfathering 17 or specific thresholds like the bubble rule that was 18 for the air area and to determine when you can backf it 19 and when you can't. What regulation do we cite if we 20 write an opinion in favor of your position that will 21 withstand scrutiny and appeal? And what case? 22 MR. ROISMAN: Well, I think the Board has 23 the power to decide the question is there adequate 24 protection for the public health and safety with new 25 criteria, provided that they're not in conflict with NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 www.nealrgross.corn
288 1 some existing rules. 2 There's no existing rule that says that 3 Vermont Yankee is automatically grandfathered to the 4 criteria that it met in 1967. There's nothing that 5 says that. What the Staff has said when they look at 6 the radiation source term number was we don't think, 7 we the Staff, don't think that the fact that radiation 8 source terms are voluntarily changed gives these 9 Applicants who want to use that a free pass to keep 10 using the old evaluations that they used. And so in 11 those limited cases where there's a linkage, we think 12 they should have to meet these new ones. 13 Now will that be a controversial decision? 14 Sure. Could you expect that when it goes up to the 15 Commission on appeal that there will be a lot of 16 amici, filing briefs? Sure. But I don't think that 17 means that the Board lacks the power if you agree with 18 us that the new design standard or the new criteria 19 are appropriate. I mean perhaps the flip side, Dr. 20 Baratta, of your question is, what is it that should 21 say that a plant that's over 30 years old should be 22 able to continue to be evaluated for its earthquake on 23 the basis of earthquake standards which have evolved 24 in those 30 years and are much more stringent today 25 than they were then? The plant i snot safer just NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005.3701 www.neaIrgross.coon
289 1 because the standards were set under an old earthquake 2 standard 30 years ago. It's presumably just as safe 3 or unsafe, based upon what the real world of those 4 standards are today. But we -- the NRC and the public 5 have essentially said okay, you get the free pass. 6 Even though the things have gotten more stringent, you 7 don't have to reevaluate your plant every 10 years 8 when these new standards come out. 9 Here, we have an Applicant that 10 voluntarily says I want to step into the next 11 dimension and all we're saying is if you do that, you 12 have to carry the burdens that go with that new 13 dimension and we've identified two specific items that 14 we believe are directly related to the steps that the 15 Applicant is proposing to take with regard to the use 16 of containment over pressure. And they are first the 17 question of the earthquake. 18 Now I want to -- we've had some discussion 19 here about the single failure. And single failure is 20 relevant here. In the design basis analysis for this 21 plant for which we do not quarrel, what is to happen 22 is that the Applicant is to postulate both a loss of 23 coolant accident and an earthquake occurring at the 24 same time. The single failure is the failure of one 25 train of the removal of the residual heat removal, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 wwwnealrgross.com
290 1 okay? So that's our single failure. 2 Now the question is under that scenario 3 will containment pressure remain sufficiently high so 4 that the NPSH is met? Our claim is that depends in 5 this contention on whether or not you're using the 6 proper earthquake analysis because an earthquake can 7 impact on the ability of the containment isolation 8 valves to hold containment pressure. We believe that 9 the newer understanding of what earthquakes can cause 10 in the way of vibrations needs to applied to determine 11 that question, to rerun the single failure analysis in 12 that scenario. That's the contention. That's the 13 basis number one. 14 Number two, the single failure analysis 15 itself has been modified from the early criteria, the 16 ones in 1967 that Staff counsel referred to to the 17 current ones. And the most important changes there 18 have been that single failures used to include only 19 single active failures. And this Applicant had 20 classified a variety of things as not being active 21 failures. Check valves, for instance, were treated as 22 not being active failures. And so-called spurious 23 movement, that is, valves, for example, or pumps that 24 were not supposed to be used at all were assumed not 25 to do anything in the event of an accident, so you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 www.neaIrgross.com
291 1 didn't look at that failure. 2 Now in today's world, that's been changed 3 and now the requirement is look at single, active 4 failures and single, passive failures long term. And 5 so there are a new group of events that relate 6 directly to contention integrity following the 7 accident and therefore containment pressure that this 8 Applicant has never evaluated for purposes of 9 determining whether or not they meet the single 10 failure criteria. So we argue and we cite what -- we 11 give some examples of what these are. We don't say 12 that it's the entire area, but there are some specific 13 single failures which didn't get evaluated before, but 14 if this plant were being licensed for the first time 15 today would have to be evaluated and they relate to 16 containment integrity and to post-accident containment 17 pressure which again goes directly to the question of 18 whether or not in an accident you will have suf ficient 19 containment pressure. 20 JUDGE BARATTA: But it would seem from the 21 Staff's comment on your basis there that they feel 22 that the Applicant has done a bounding analysis which 23 demonstrates the degree of conservatism that exists 24 and therefore while what you say is hard to argue 25 against from a strictly motherhood type of standpoint, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www~nealrgross.com
292 1 if you do the bounding analysis and it says hey, I've 2 still got so much conservatism, I don't have to go 3 through and do all this detailed analysis, that's one 4 of approaching it. 5 MR. ROISMAN: Yes, but the problem with 6 what they have done is that the single failure that 7 they have bounded is the universe of single failures 8 that exclude all the single failures that now are 9 required to be included. 10 JUDGE BARATTA: My point is that if I take 11 a worse case single failure, you don't have to do that 12 universe. And that's what I'm having trouble 13 understanding. You just told me that the single train 14 failure was probably the worse case failure, coupled 15 with an earthquake. And that seems to be what they 16 did and they showed that you were well below boiling 17 in the pool which is the critical criteria that you 18 have to meet. 19 MR. ROISMAN: I'm sorry, I didn't hear 20 that. 21 JUDGE BARATTA: That they were well below 22 boiling in the pool which is the critical criteria 23 that you have to meet for that type of transient. 24 MR. ROISMAN: Our concern is what they 25 have done is to run that same single failure and use NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234.4433 WASHINGTON, D.C. 20005-3701 www.nealrgross corn
293 1 the earthquake analysis that we believe they should 2 use which we think may -- we don't know, I mean that's 3 why we're saying it's a deficiency. 4 JUDGE RUBENSTEIN: So you're questioning 5 if the new forcing function is or is not within the 6 bounds of that umbrella calculation that they run? 7 MR. ROISMAN: Yes. Yes, that is correct. 8 JUDGE BARATTA: So it's not with the 9 bounding analysis, it's the input to the bounding 10 analysis? 11 MR. ROISMAN: Yes, that's -- 12 JUDGE BARATTA: I guess in that regard 13 there seems to be this issue of whether or not the 14 State has adopted that earthquake as the referenced 15 earthquake or not. I may not be using the correct 16 terminology. I apologize for that. But could you 17 talk to that a little bit? 18 MR. ROISMAN: Yes. We cited that and we 19 cited other -- we also cited the fact that a more 20 stringent or a higher ground acceleration was used for 21 more recently licensed facilities, nuclear facilities 22 in the New England area, only to show that there is 23 evidence out there that a more stringent earthquake 24 standard should be used. 25 We are not arguing that there is one that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 2344433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
294 1 has been adopted and that must be used here. That 2 would be an issue on which we would join, I'm sure the 3 Applicant and perhaps the Staff, if they become a 4 party, will have a disagreement with us and our 5 grounding acceleration earthquake specialist will 6 offer his opinion as to what he thinks is the right 7 number to use and they will offer their opinion as to 8 what they think it is. 9 We're not trying to argue that there's a 10 standard that the company has to meet. We're trying 11 to argue that the standard which they have chosen to 12 meet is not a current standard and that they should 13 have to meet the current one. 14 JUDGE BARATTA: I understand that, but we 15 have to work within the bounds of what the 16 requirements are and I'm having trouble making that 17 transition to this new ground movement that you 18 suggest should be used. Where are they required that 19 they be used? 20 MR. ROISMAN: Well, Millstone. Millstone 21 meets a higher earthquake -- 22 JUDGE BARATTA: That's not the question I 23 asked. The question I asked is where is Vermont 24 Yankee required to meet those by the regulations? 25 JUDGE RUBENSTEIN: Or let me add to it. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 www.nealrgross.corn
295 1 In establishing your basis, for example, at Millstone, 2 when they used a new forcing function, ground motion, 3 was it -- did it change the outcome? Was their 4 bounding calculation still valid? 5 MR. ROISMAN: This was when they initially 6 licensed it. 7 When it was initially licensed they were 8 using a more -- my understanding of what has gone on 9 in the earthquake field is that the NRC used to define 10 a geographic area and say the relevant earthquakes are 11 the earthquakes that are within this geographic area. 12 Within that area, Vermont Yankee met what was the, if 13 you will, the design basis earthquake, the sort of 14 worse case. 15 Subsequent to that time, the U.S. 16 Geological Survey and experts in the field and the NRC 17 eventually agreed, think that the geographic area that 18 ought to be included, in other words, the tectonic 19 plates that are interrelated enough to include both 20 areas is bigger. When you make the area bigger, you 21 bring in some earthquakes that were larger than any 22 earthquake that was in the smaller area. So today, 23 the best judgment is the size of the design basis 24 earthquake has to be a larger one because it is now 25 more plausible. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
296 1 JUDGE RUBENSTEIN: In looking at your 2 basis for admissability is the safe shutdown 3 earthquake bounding calculation as it is now likely to 4 be negated by using the new forcing function? Do you 5 have anything to support these hypotheses and we'll -- 6 I'll ask pretty similar question to Entergy and then 7 the Staff. 8 MR. ROISMAN: Well, we've not rerun the 9 calculation using a different number, but obviously 10 ground acceleration is an input value. If you put 11 ground acceleration up by 70 or 80 percent, you're 12 going to change movement. We know that the isolation 13 valves are already vulnerable to leakage and we know 14 that it's important that the isolation valves get 15 seated properly and that they seal in order to deal 16 with containment isolation. So we believe it's a 17 reasonable inference that if we increase the amount of i8 movement that's going to happen after an earthquake, 19 the isolation valves are vulnerable. 20 JUDGE RUBENSTEIN: Okay, so your argument 21 is based sort of on inference or logic as opposed to 22 saying gee, here's an example where the old forcing 23 function on this plant which did a recalculation was 24 penetrated by the bounding value, was penetrated by 25 using a new input. You don't have that kind of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 wwwnealrgross.com
297 1 information? 2 MR. ROISMAN: No, but -- 3 JUDGE RUBENSTEIN: Even from say 4 petrochemical plants or anywhere, it's sort of a 5 passing through you to your geologist, has there been 6 evidence that using the new values have changed the 7 situation anywhere? 8 MR. ROISMAN: Well, I mean we can take 9 official notice of it, that after the big earthquake 10 in San Francisco 10 or 12 years ago, the people in San 11 Francisco and the engineers out there realized that 12 the buildings that were designed to the older 13 standards didn't hold up so well and the ones that 14 were designed to the newer standards did. So there's 15 some empirical evidence of that. 16 But it's important to understand that our 17 contention is also based upon the fact that the 18 Applicant has not done the analysis. Remember, it's 19 not our burden to show that they have -- that the 20 application is wrong if they fail to do the analysis 21 that we think they're required to do. They may do it 22 and it may be satisfactory and we may say -- 23 JUDGE BARATTA: But what we're looking for 24 is what is the bridge that takes your contention from 25 a mere allegation to a contention? That's where I'm NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
298 1 having the trouble making the connection. 2 MR. ROISMAN: The obligation in the 3 regulations that the Applicant must design the plant 4 to meet the safe shutdown earthquake. 5 JUDGE BARATTA: But on that, I just am 6 troubled by the backfit rule and Entergy and the Staff 7 and Entergy has raised it, but how do we get over 8 that? It basically says 50.109. But basically, it 9 says we can only require backfitting a more stringent 10 standard when a substantial increase in overall 11 protection of public health and safety can be found 12 and costs are justified and blah, blah, blah and the 13 Commission is consulted. I don't see where we have, 14 you know, are you arguing that this is what we fit the 15 criteria of the backfit rule? 16 MR. ROISMAN: No. What I'm saying is that 17 there isn't a backfit issue when an Applicant is 18 voluntarily doing some. No one is forcing them to ask 19 for 20 percent more power. 20 JUDGE BARATTA: I see. As opposed to 21 involuntary. 22 JUDGE BARATTA: I'd like to change your 23 subject slightly because you brought it up and it's a 24 question -- 25 JUDGE KARLIN: Time is up. You can NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 www.nealrgross.cam
299 1 finish. 2 JUDGE BARATTA: You mentioned the linkage 3 on an isolation valve and there was a point of 4 clarification I wanted to get and I'm not sure -- 5 maybe it would be better to have Entergy respond to 6 this, but the testing that's done to determine leakage 7 is not done with the actual accident delta P that 8 would be present, is it? As a result, is that leakage 9 -- that leakage is expected to be higher than it would 10 be during an accident condition. Is that not the 11 case? 12 MR. ROISMAN: My understanding, we 13 submitted the document so the Board can look at it 14 itself. My understanding is that it was found that 15 the tests show that the valve failed the test. So in 16 that sense it is not what it was supposed to be. I 17 can't answer your question, the technical question 18 about the delta P issue and that, but it wasn't a 19 pass. It was a not pass. And just so we're clear, 20 we're talking about the fact that -- not -- it's not 21 that it's 20 percent more power, it's that they're 22 linking two multiple fission barriers which is the 23 design basis change that justifies them having to now 24 review those in light of relevant current criteria. 25 JUDGE BARATTA: Okay, thank you. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
300 1 JUDGE KARLIN: Thank you. Mr. Silberg. 2 MR. SILBERG: Yes, this is a contention 3 where there are so many problems with it, I'm not sure 4 I know where to start, but I will say that we have 5 done the analysis that the State says we haven't done 6 and it's in the application. It's in the -- what we 7 call the PUSAR which is part of our uprate application 8 and it says that we can take a .3G earthquake, not 9 1.4G earthquake. Our design basis is .14G earthquake, 10 but we said in the application that we can take a .3G 11 which I think answers your question. 12 JUDGE BARATTA: Could you be more specific 13 where it is in the FSR? 14 MR. SILBERG: Page 10-17 of NEGC-33090PB-15 29/5-2003. And it's part of, as I understand, part of 16 the original application. 17 Second, the allegations that somehow the 18 seismic change in seismic information has undermined 19 the design basis of this plant is simply wrong. The 20 letter by the State geologist shows several things. 21 It compares the peak ground acceleration that they 22 take from the USGS 1996 ground motions and compare 23 that with the peak ground accelerations for the 24 Vermont Yankee plant. And the numbers for the USGS is 25 12.33, the number that is used in the application is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
301 1 14. So we, in fact, use a higher peak ground f 2 acceleration. And they don't question that the peak 3 ground acceleration numbers for Vermont Yankee are 4 different than the peak ground acceleration numbers 5 that USGS uses. 6 What they do argue is that the predicted 7 short period accelerations for certain short period 8 waves are higher than the .14G peak ground 9 acceleration at Vermont Yankee. But technically, 10 that's comparing apples and oranges. You simply 11 cannot say that a spectral acceleration, which is the 12 .2 and the .3 and the 1.0 second acceleration numbers
; 13 are comparable to peak ground acceleration. I'm told 14 by our geologist and seismologist that any engineering 15 will know you don't compare peak ground acceleration 16 against spectral acceleration because they're 17 different.
18 The argument that the State is making that 19 says there is evidence out there of new stringent 20 standards including the IBC and therefore we need to 21 reevaluate seismic design is also simply incorrect. 22 The IBC has been looked at by one Licensing Board in 23 the Private Fuel Storage case which we cite and 24 rejected. There's no comparison between the values in 25 the IBC compared with the ones they use and that was NEAL R. GROSS K- COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 www.nealrgross.com
302 1 one of the reasons that the Board in Private Fuel 2 Storage rejected it. 3 And if it's not good enough for the State 4 of Vermont, I would think it would not' be good enough 5 for the State of Vermont to tell other people in the 6 State of Vermont that they have used. 7 As far as different seismic values used in 8 other plants, there's no indication here that Seabrook 9 and Vermont Yankee are in the same seismic zone. We 10 heard what I think can be characterized as evidence by 11 Mr. Roisman as to the change in seismic design. Now 12 there's nothing that I recall that talked about change 13 in the areas that we must use in picking the 14 earthquakes, but be that as it may, the evidence 15 simply on this issue, taken in its narrowest form, 16 doesn't support the idea that we ought to look at a 17 new seismic design because indeed if we did that here, 1s then every time anyone filed any license amendment, 19 one would have to redo the seismic design, any time 20 there was an allegation that there was some new 21 information out there about seismicity because I would 22 guarantee that virtually every plant license amendment 23 somehow affects containment. So the same nexus that 24 is postulated here between the power uprate and 25 containment could also be postulated for any other NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005.3701 wwwnealrgross.com
303 1 license amendment. It just doesn't make sense. 2 This argument will turn the backfit rule 3 on its head. And the backfit rule is something that 4 shouldn't be lightly discarded. The Commission went 5 through a lot of angst to decide how properly it ought 6 to treat the original design bases of plants and we 7 believe that that's appropriate for a variety of 8 policy reasons. 9 JUDGE BARATTA: Could you talk to the 10 point that was raised by DPS concerning the fact that 11 this is voluntary versus required by Staff. 12 MR. SILBERG: Well, any license amendment 13 is voluntary, but what State is asking for is to make 14 a backf it a change in our design basis which we're not 15 volunteering for. The fact that we have asked for EPU 16 is indeed voluntary. We have not asked for a seismic 17 upgrade and we don't need one. 18 JUDGE BARATTA: What I'm saying is that 19 the backfit rule doesn't apply because you're 20 requesting a voluntary change. In other words, to say 21 the backfit rule applies is inappropriate is what 22 they're saying. 23 MR. SILBERG: But the backfit rule doesn't 24 apply to EPU. And we're not arguing that anything 25 that is related to EPU somehow can't be changed. NEAL R. GROSS K- COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.neafrgross.com
304 1 JUDGE BARATTA: Then why doesn't it open 2 up the criteria, these new criteria that come into 3 play? Because you're arguing the backfit rule says 4 they don't, but you just said the backfit rule doesn't 5 apply. 6 MR. SILBERG: Because we're not doing 7 anything to containment that would require a change in 8 containment. We have not made any containment changes 9 as part of the EPU application, so there's no reason 10 to reopen containment any more than if we were 11 changing an electrical circuit inside containment and 12 yet you would worry that if there was a containment 13 failure, maybe that electrical conduit might break 14 more easily or be subject to more environmental i5 impacts. Everything you do in the plant, arguably, 16 would be -- would trigger a review of the containment 17 design. It simply doesn't make sense to re-review the 18 whole plant just because we're making a change in one 19 area. 20 Let me get back to -- 21 JUDGE BARATTA: I'd like to explore that 22 a little further. You are making a change the way the 23 containment is utilized and the isolation valves form 24 part of boundary that involves the containment and 25 therefore it would seem as though that should cause NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. WASHINGTON. D.C. 20005.3701 wwwnealrgross.com 1I (202) 234-4433
305 1 those issues to come into question. 2 Could you comment on that? ,.,-/ C... :! 3 MR. SILBERG: There are two separate 4 issues. First, we're not changing the way in which 5 containment is used. Containment is a pressure-6 retaining component. That's the way it was before. 7 It is now and it retains pressure after a local, far 8 in excess of any pressure that we would need to retain 9 for power uprate purposes. 10 With respect to the check valves, our 11 design basis does not require that we postulate a 12 failure of those. The argument the State has made by 13 looking at tests don't in any way show that those 14 check valves won't perform their safety functions. In 15 fact, the very document they cite states that there's 16 nothing in those tests that indicate that the valves 17 won't perform their safety functions when called upon. 18 The test is run in the backwards way so that where a 19 check valve would seat if pressure was coming out, 20 which is when you want it to seat, MSIV, it's not 21 necessarily the same as if pressure were going in the 22 other direction. 23 So we're really, again, trying to, I 24 think, grasping at straws, looking for things that 25 they might latch on to that really aren't related to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. 11 (202) 2344433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com I
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306 1 the application -- 2 JUDGE BARATTA: Wait. Before we go to the 3 next point, what about the claim that the State has 4 made with respect to the fact that there are criteria 5 for accepting the test results, regardless of how the 6 test mimics the real behavior of the valve during an 7 accident situation? And that those criteria were not 8 met? Is that true? 9 MR. SILBERG: The individual tests when 10 you run the tests there sometimes you meet criteria 11 and sometimes you don't. That test report shows that 12 in certain cases, that in some cases the valves did 13 not, those valves were rebuilt, retested and put back 14 in service. 15 JUDGE BARATTA: In other words, they 16 didn't pass. 17 MR. SILBERG: That particular test. And 18 therefore, they were rebuilt. That's why you test 19 things. 20 JUDGE BARATTA: I understand that. I just 21 wanted to clarify did they or did they not pass. 22 MR. SILBERG: Yes, I think there were 23 certain cases where individual valves -- 24 JUDGE BARATTA: Could I ask the -- 25 MR. SILBERG: Let me just finish the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 Ywww.nealrgross.com
307 1 record. I'm told the total allowance as shown in that 2 report for all the valves did not exceed the allowance 3 although -- 4 JUDGE BARATTA: Okay, so when you combine 5 all -- okay, I understand now. 6 The question that I asked of State counsel 7 was in terms of the -- and I think he answered this in 8 terms of an accident condition, the actual flow would 9 be such that it would tend to seat the valves more 10 than in terms of the way it was tested. 11 Could you just maybe give a two-second 12 explanation of that? 13 MR. SILBERG: That, I think, is correct. 14 When I talked about the reverse flow, the valves are 15 intended to close against an outward flow. So the 16 pressure trying to leave containment would seat the 17 valves. The test has the pressure coming in the 18 opposite direction, as I understand it, so you're 19 testing something that -- it's a way to test the 20 valve, but it's not testing it as it would operate. 21 In an accident situation, it's a much, much more 22 conservative test. In an accident situation, all the 23 tendency would be to seat the valve. 24 JUDGE RUBENSTEIN: You're testing the 25 pressure or force you.need to open it to a certain NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 www.nealrgross.com
308 1 level and how the valve would close and then you test 2 the amount of leakage which is related to the seating 3 capability of the valve. 4 MR. SILBERG: Technically, I'm told that 5 there is a physical restriction in the design that 6 does not permit you to test it in the direction of 7 accident flow, so you'd have to test it in the other 8 direction. 9 JUDGE BARATTA: I'd like to change the 10 subject and go back to the question of seismology a 11 minute. You made a point before that peak ground 12 accelerations are not the same as spectral 13 accelerations. Could you in layman's terms explain 14 that, because I'm not a seismologist. 15 MR. SILBERG: I could yesterday afternoon. 16 I'm not sure that I can today. If I take a break, I 17 can probably get smart enough to answer it. 18 Peak ground acceleration, as I understand 19 it, is if a block of marble was sitting on the 20 surface, how it would accelerate. The spectral 21 acceleration, I believe, you assume elevated in a 22 building, for instance, above the ground surface and 23 I think the timing of whether it's .2.3 or 1.0 has to 24 do with how high above the surface you are. It deals 25 with the natural frequencies and that's governed by, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
309 1 if you're in a structure, where you are in that 2 structure. Peak ground is also, as I recall, known as 3 EPA or zero period acceleration. 4 Let me get back to some simpler issues. 5 The contention itself, and let's get back to the 6 wording the contention talks about, because we're 7 seeking a voluntary,change in basis, we should comply 8 with more restricted practices. Again, they're not 9 saying we must and as I think you heard there is no 10 regulatory basis. That in itself ought to be enough 11 to throw the issue out. There are three bases. The 12 first one is we both agree there is no issue that we 13 do take credit for NPSH. 14 The second is that where changes are 15 voluntary, we should meet the more restrictive 16 standards and that we think is simply inconsistent. 17 First focus contention and this basis fail to state 18 that we're required, even the basis says we're should 19 meet. There's nothing in here that says we're 20 required to meet and if we're not required, I don't 21 know how this Board could say well, should is a nice 22 thing to do, but they don't have to do it, even if it 23 were something we ought to do which we don't think it 24 is, then it's not the right thing to do. 25 Second, DPS's only support of what we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com 4..;*;
310 1 should do is in the Reg. Guide 1.183 and we've agreed - 2 that the regulation and Reg. Guide are different. We 3 agree the Reg. Guide is not a basis for contention, 4 but they don't even use this Reg. Guide correctly. 5 What they say in there, they quoted on page 30 of 6 their petition is the characteristics of the AST, the 7 alternate source term and the revised dose calculation 8 methodology may be incompatible with many of the 9 analysis assumptions and methods currently reflected 10 in the facilities design basis. That's what they're 11 saying here. Some seismic stuff, some single failure 12 interpretations may be inconsistent. 13 What this document that they rely on would 14 have you do is not to change the design basis. It 15 goes on to say the NRC Staff may find that new or 16 unreviewed issues are created by a particular site-17 specific implementation of the ASG, warranting review 18 of Staff positions approved subsequent to the initial 19 issuance in a license. So they're not talking about 20 a change in the initial license. They're not talking 21 about a change in the licensing basis. They're 22 talking about a review of Staff position. So it 23 simply doesn't stand for the proposition that they 24 want it to stand for. And as we said, that Reg. 25 Guide, that language is not found in the Reg. Guide NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 2344433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
311 1 that we're using here. We're not using that Reg. 2 Guide in this proceeding. To take that as authority 3 again is picking out something that exists for a 4 different purpose that doesn't say what they say it 5 does and try to impose it in this proceeding. 6 The third basis is where they cherry pick, 7 and I think that's their terminology, the two issues. 8 One is seismic design and the second is in the failure 9 rule and the check valve. They really haven't 10 identified what the current criteria are that they're 11 relying on. They fail to cite to our application. 12 They fail to cite how this issue is related to EPU. 13 It's not created by a particular site-specific 14 implementation which is the words of their Reg. Guide 15 that they would have us follow. 16 And they've also failed to reflect 17 information that's in the record, particularly on 18 check valve failures where we showed that we don't 19 need, even if we were to fail that check valve because 20 water temperatures below the key value of 180 degrees, 21 you still don't need containment over-pressure and you 22 still can't get into that situation without 23 postulating multiple failures. 24 So here again, the State is asking us to 25 get into single failure after single failure. We're NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 www.nealrgross.com
312 1 well beyond the Commission's rules as to what we need 2 to design the plant to. We can always postulate 3 enough failures so that we're in trouble. But that's 4 not what the Commission's regulatory structure has 5 been set up. It's not a sensible approach and we 6 wouldn't run society that way. 7 JUDGE KARLIN: Any questions? Is that all, 8 Mr. Silberg? I think that's the end of the time 9 anyway. 10 MR. SILBERG: Thank you, Mr. Chairman. 11 MR. ROISMAN: I'd like to make amotion to 12 strike two portions of Mr. Silberg's answer. 13 JUDGE KARLIN: Can you speak up a little 14 bit? 15 MR. ROISMAN: Yes. I'd like to move to 16 strike two portions of Mr. Silberg's answer. The 17 first is his reference to the calculations that he 18 made reference to that showed that this plant could 19 lead a .3G event. That was never cited in the answer. 20 In short, what he's done is amended his answer without 21 giving good cause. I don't see any reason why 22 amendments -- and of course, we've had no opportunity 23 to respond to it. 24 I have the documents here in front of me. 25 At least a portion of it that deals with that, but I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005S3701 www.nealrgross.com
313 1 don't think that it's appropriate for the Board to 2 rely upon that. 3 The second relates to the same issue. Is 4 that he gave us an extended discussion, lawyer, 5 discussion, of what he believes are the relationship 6 between peak acceleration and spectral analysis. It 7 was interesting to hear that. My geologist tells me, 8 mostly wrong. But the point is it was never put into 9 the answer. There's no evidence to that and we would 10 move that that be stricken as well. 11 Both of those not being appropriate since 12 they were not previously raised. 13 MR. SILBERG: May I respond? 14 JUDGE KARLIN: Yes, please. 15 MR. SILBERG: First of all, we're citing 16 to the application in our first reference to .3G. We 17 certainly referenced our application throughout and in 18 our answer our ability to respond to seismic events. 19 Second, I'm calling attention to what I 20 think and the Board Members can correct me, technical 21 understanding amongst those who are knowledgeable 22 about what is and isn't comparable and that was 23 responding to a Board question. 24 I think if we're going to move to strike 25 I would also move to strike Mr. Roisman's comments NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON, D.C. 20005.3701 www.nealrgross.coam
314 1 about changes in how people do seismic evaluations. 2 I think all lawyers have probably been making 3 statements as to their understanding of what the 4 technical issues are. And I think in this context 5 where we're not -- you know, this is not a testimonial 6 presentation, it's by and large appropriate. But I 7 think if we're going to start striking, there's a lot 8 of -- striking the kettle to go -- 9 JUDGE KARLIN: I appreciate the motion. 10 I think that you, -- counsel -- all counsel here have 11 made some statements concerning factual matters. This 12 is not an evidentiary hearing and we understand that. 13 But in light of Entergy's response and I 14 think you have also referred to certain factual 15 matters such as the peak ground acceleration changes 16 and I'm going to deny the motion and allow it. 17 MR. ROISMAN: May I just say with regard 18 to the specific document that they reference, I double 19 checked. There is no reference in the discussion of 20 the seismic issue in their answer to the application 21 at all, much less the idea that my referencing a 22 document that is in itself thousands of pages long and 23 changes almost weekly they have automatically brought 24 the entire document in here without ever filing it or 25 identifying with specificity what particular portion NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.corn
315 1 of it they're relying on. 2 MR. SILBERG: I'll be happy to make a copy 3 of it. I gave the citation. 4 MR. ROISMAN: I'll oppose the motion to 5 amend their answer. 6 JUDGE KARLIN: Well, it sounds like your 7 objection is that they can't refer to simply a huge 8 document without giving us specific citation to the 9 page and chapter and verse that they're referring to. 10 MR. ROISMAN: They assert that rule to the 11 Petitioner and the Intervenor and you assert it -- 12 their answer seems to be we'll give you the chapter 13 and verse. 14 MR. SILBERG: And I did on the record. 15 JUDGE KARLIN: And I think that's 16 sufficient so I'll deny that motion. 17 MR. SILBERG: May I then at the hearing 18 tomorrow give the answer which I never had a chance to 19 reply to because I never knew that they were going to 20 make that reference? 21 JUDGE KARLIN: Well, within the time 22 available, if we have some time at the end, yes. I 23 think we probably can accommodate you. But I think 24 that's one reason that it might be advisable for you 25 to retain some rebuttal time. That's your call. It's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 www.nealrgross.con
316 1 how you want to do that. If you use up all your time. 2 Then there's no rebuttal time. 3 MR. ROISMAN: I wouldn't try to rebut the 4 reference as technical as that in rebuttal anyway. 5 that would be unfair. 6 JUDGE KARLIN: All right, thank you. Ms. 7 Poole, 10 minutes, please. 8 MS. POOLE: Thank you. I just wanted to 9 answer a question that Judge Baratta asked with 10 respect to leakage rate testing. Appendix J at part 11 50 requires leakage rate testing to be done at the 12 predictive accident pressure. 13 JUDGE KARLIN: Thank you. 14 MS. POOLE: We weren't going to add 15 anything further to our papers, but we'll be happy to 16 respond to any questions the Licensing Board has. 17 JUDGE RUBENSTEIN: I'd like to understand 18 your reasoning on the adequacy of the current seismic 19 analysis in supporting admission. What is the basis 20 to help you come to that decision? 21 MS. POOLE: The part of the basis that we 22 didn't challenge was with respect to the seismic -- 23 was the part that referenced the letter from the 24 Vermont State Geologist. 25 I think it's fair to say we thought this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.corn
317 1 was a close call and just decided to err on the side 2 of not objecting. I think we thought the letter from 3 the State Geologist raised the question as to whether 4 the uprate -- the way I thought about it,it was sort 5 of the question of whether any changes to the system, 6 structures and components with respect to the uprate, 7 would have an effect on the seismic analysis and I 8 think we just looked at the State Geologist' 9 s letter and went at that. 10 JUDGE KARLIN: What bothers me about that 11 is that basically with the peak acceleration dealing 12 with spectral response and you have to do a 408 13 analysis of your structure to be able to determine 14 that. I'm concerned that there is an apples and 15 oranges type of approach being taken here and that's 16 what I was trying to get at. 17 But I wondered if someone could explain 18 that in layman's terms for the record. I don't have 19 that. 20 MS. POOLE: I'm afraid we can't explain 21 that in layman's terms today, but I think it's fair to 22 say that the Staff thinks that although we don't 23 change our formal position, that the Applicant has 24 provided a sufficient rebuttal to the contentions that 25 the Board could find inadmissable on that basis. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234.4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
318 1 JUDGE KARLIN: I have a more legalistic 2 question which is how do we deal with the backf it 3 rule. Does this run afoul of it or is there a problem 4 here in that the -- as I understand it, the advocating 5 a more stringent standard be applied and then we have 6 confronted with the backfit rule. Is that a problem? 7 Is this a problem for this? 8 MS. POOLE: I'm sorry, I don't fully 9 understand your question? 10 JUDGE KARLIN: Well, maybe I don't 11 understand the issue, but it seems to me that the 12 State is advocating that more stringent seismic 13 standards should be applied since the Entergy is 14 voluntarily requesting some changes here and that 15 rather than being grandfathered, the more stringent 16 standards should apply. 17 The Staff seems to have said they don't 18 object to that or haven't raised an objection. Does 19 this raise a problem on the rule or am I off the mark? 20 MS. POOLE: Well, I do think that we would 21 review the license amendment request against the plant 22 specific licensing basis and if we come up against a 23 situation where we find that safety cannot be -- 24 adequate protection of safety can't be assured, then 25 we would have to perform the backfit analysis. It NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 200053701 www.nealrgross.com
319 1 really doesn't answer your question. 2 JUDGE KARLIN: Why don't you answer that 3 Entergy does, oh, violates the backf it rule. Just 4 because you think we should consider it, doesn't mean 5 we are allowed to. 6 MS. POOLE: I think we would agree with 7 that. I think we would agree with the Applicant. I 8 think that's responsive to your question. 9 JUDGE KARLIN: But your position is that 10 you don't object to its admission. 11 MS. POOLE: Well, as I said, I think we 12 thought it was close and that the Applicant has 13 provided a basis to not admit the contention. 14 JUDGE RUBENSTEIN: Close in what respect? 15 I mean in the sense you see there's a linkage? 16 MS. POOLE: Yes, the linkage between the 17 seismic issue and the EPU. 18 JUDGE RUBENSTEIN: Okay. 19 JUDGE KARLIN: Any other questions? 20 JUDGE BARATTA: Could you expand on that, 21 what that linkage is? 22 MS. POOLE: I think we weren't 23 sufficiently sure, so we thought -- what the linkage 24 would be, so we thought we would err on the side -- so 25 we didn't object. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
320 1 JUDGE KARLIN: You probably can't answer 2 this, but was the Staff was the same position as the 3 Petitioner in not having to -- not having looked at 4 the full record itself and looked back to the -- 5 MS. POOLE: I think we did not look back 6 to the original seismic analysis in looking at this. 7 JUDGE KARLIN: Okay. Thank you, Ms. 8 Poole. Let's move ahead to NEC -- where are we. NEC 9 contention 4, are we not there? 10 Mr. Block, Mr. Shadis, who will argue this 11 one? 12 MR. BLOCK: I will be arguing this one. 13 This is Mr. Block. 14 JUDGE KARLIN: Twenty minutes. Do you 15 have any reserve rebuttal time? 16 MR. BLOCK: We'd like to reserve whatever 17 the balance of the time is after I've made the 18 statement and you've questioned me. If there's 19 something left that will be fine. 20 JUDGE KARLIN: That will be fine. 21 MR. BLOCK: I would just reserve whatever 22 balance is left after we've had our go-round here. 23 As we see it, this is a well-supported 24 contention. In fact, the NRC Staff, if we understand 25 them correctly doesn't object to this contention. We NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 www.nealrgross.com
321 1 hople that when they get a chance to speak on it, 2 they'll address how they define the basis of their 3 acceptance of it. But we do have an issue with the 4 Applicant who seems to be asserting that Mr. 5 Gundersen's contention concerning the seismic and 6 structural qualifications of the cooling tower be 7 outside of the scope of the proceeding. 8 It is an interesting coincidence that we 9 move from discussing seismic qualification because of 10 course there is NUREG as a matter of public record 11 that took Vermont Yankee as an example of a vulnerable 12 plant. And that's NUREG 1738 which I believe is 13 January 2001 in which Dr. Robert P. Kennedy described 14 its vulnerability and the potential for the spent fuel 15 pool to drop out, the bottom to drop out in an 16 earthquake. 17 Mr. Gundersen was dealing with the lack of 18 proper analysis and qualification of the cooling 19 towers which under operating conditions will be relied 20 upon more heavily, will bear an extra burden. 21 I've reviewed his declaration at pages 5 22 through 7 and we believe that it provides adequate 23 support for the contention. We think that it's 24 adequately based upon the documents and the lack of 25 qualification that's provided within this application. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 www.neaIrgross.com
322 1 The Applicant's arguments, seems to me, 2 come down to in saying that it's outside of the scope, 3 that they're somehow not going to be relying on the 4 system which involved here is the ultimate cooling 5 system. 6 In fact, it will be relied upon and it 7 will be more heavily relied as the need arises under 8 conditions of greater heating, particularly the summer 9 to reduce the stress on the Connecticut River in order 10 to avoid cooking the fish in the river. 11 So that's essentially our position on this 12 and I hope the Board has some questions. 13 JUDGE RUBENSTEIN: I'm looking at the part 14 where you say your expert believes that the alternate 15 cooling system -- wanted a dedicated cooling path 16 carousel will bear an extra burden on the uprate 17 condition. 18 MR. BLOCK: Correct. 19 JUDGE RUBENSTEIN: Can you amplify that a 20 little bit? 21 MR. BLOCK: Well -- 22 JUDGE RUBENSTEIN: What the basis of your 23 belief again? 24 MR. BLOCK: With greater heating bits 25 involved there will be a need when the system is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005.3701 www.neafrgross.com
323 1 relied upon'to do more work than it's doing now and in 2 the period of time since the last attempt to qualify 3 the system which was 1986, there's been no additional 4 work done to structurally or seismically qualify it. 5 And so in the higher stress conditions 6 that will exist when the uprate is implemented, there 7 isn't adequate assurance that the system will be able 8 to bear it. 9 And as he points out, this is a system 10 that it's been recognized and this is at page 6 of his 11 declaration. The alternate cooling system isn't 12 engineered as a safeguard system and isn't relied on 13 for design accidents. And in addition to a loss of 14 divert and dam, the system is credited for two other 15 special events, an Appendix R fire in the intake 16 structure and 100-year flood of the intake structure. 17 So it's a special heat removal system used in the 18 special event to achieve and maintain safe shutdown 19 when the normal surface system pumping from the river 20 isn't available or I should say is lost would be the 21 quote and that's at page 6 where he's citing internal 22 Entergy memoranda. And so under the uprate 23 conditions, this system when it's called upon would be 24 dealing with a greater load, more volume, more weight 25 and therefore would be under greater stress and it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
324 1 remains to be properly qualified. 2 JUDGE RUBENSTEIN: Thank you. 3 MR. BLOCK: Thank you. 4 JUDGE KARLIN: Any more questions? 5 JUDGE BARATTA: No. 6 MR. BLOCK: Thank you. 7 JUDGE KARLIN: Thank you, Mr. Block. Mr. 8 Silberg. 9 MR. SILBERG: It will be Mr. Traviesco-II 10 Diaz. 11 MR. TRAVIESCO-DIAZ: Mr. Chairman and 12 Members of the Board. My name is Matias Traviesco-13 Diaz. Good afternoon. I'm counsel for Entergy. I'm 14 going to talk about contention 4 which deals with the 15 current status of and the need to perform seismic 16 analysis of one cell or one portion of one of the 17 cooling towers. 18 Before I turn to the discussion of the 19 contention, I need to respond to two things that 20 counsel said. First, he made a reference to NUREG 21 1738 which he describes as having to do with dropping 22 spent fuel pool. I don't know what he's talking 23 about. He was not talking at all about the contention 24 and it does not have anything to do with cooling 25 towers. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 www.neaIrgross.com
325 1 The second thing that I would like to make 2 clear is that even though this is a contention, it has 3 nothing to do with DPS contention 3. Seismic is just 4 a common word from both which deal with totally 5 different issues. 6 Now this contention is supported by the 7 declaration of Mr. Gundersen that was referred to a 8 moment ago and that's actually what I'm going to be 9 talking about because I believe that in that 10 declaration there are at least three or four reasons 11 why this contention cannot be admitted, and should be 12 excluded. 13 First, the declaration says clearly, page 14 7, that nowhere in the application for the EPU there 15 is a reference to the ACS which is the safety system 16 in the one cell in the cooling tower that is of 17 interest here. 18 JUDGE KARLIN: Where is that? I'm on page 19 7, which paragraph. 20 MR. TRAVIESCO-DIAZ: One second. 21 JUDGE KARLIN: I'm just trying to follow 22 you here. 23 MR. TRAVIESCO-DIAZ: In the last paragraph 24 of 6. 25 JUDGE KARLIN: Last paragraph of 6? NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
326 1 MR. TRAVIESCO-DIAZ: Page 7. This may be 2 why we couldn't find a discussion of the safety 3 related uprate activity in the EPU license amendment 4 application. There is no discussion, the last 5 paragraph. 6 JUDGE KARLIN: The last paragraph on page 7 7? 8 MR. TRAVIESCO-DIAZ: Yes. 9 JUDGE KARLIN: Okay. 10 MR. TRAVIESCO-DIAZ: In fact, he's 11 correct, there is nowhere in the application for EPU. 12 There's a mention made of this system. There is no 13 proposed change to the system which deals or talks 14 about the declaration. No changes are going to made 15 of this system. No changes are going to be made to 16 the analysis of this system. Some motors have been 17 added to other parts of the cooling tower which are 18 not safety-related. No motors have been changed or 19 added to the system. So this system is not being 20 modified at all. 21 JUDGE KARLIN: When you say it's not being 22 changed, do you mean it's not being changed in this 23 request for modification, application for modification 24 and amendment? 25 MR. TRAVIESCO-DIAZ: No. It's not been NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
327 1 changed period. 2 JUDGE KARLIN: It's not been changed 3 period since the beginning of time, since the 4 beginning of this facility's license? 5 MR. TRAVIESCO-DIAZ: Not only that, but 6 there is no intent to make any changes to it. 7 JUDGE KARLIN: Okay. 8 MR. TRAVIESCO-DIAZ: Okay? There were 9 some structural modifications made in 1986. The 10 structure from a seismic standpoint has not been 11 changed and there is no intention to change, subject 12 to something that I'm going to talk about. 13 JUDGE KARLIN: But isn't one of the 14 concerns here that there's an ambiguity or a lack of 15 a clear current licensing basis against which to judge 16 the delta, the change that would be caused by the EPU? 17 MR. TRAVIESCO-DIAZ: I was going to talk 18 about that in a minute, but I can talk about that now. 19 JUDGE RUBENSTEIN: While you're on the 20 ACS. There's really discussion of potential 21 additional loads due to the EPU in terms of heat load 22 which -- or the average core discharge temperature of 23 the coolant water in increased, I assume and you're 24 going to have a larger load and so vis-a-vis that and 25 the ACS or the cooling towers, have you done such that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 www.neaIrgross.com ,, ~~~. ...':--"'
328 1 (a) is there a load; (b) have you done some analysis; 2 (c) is there an analysis that shows acceptability? 3 MR. TRAVIESCO-DIAZ: My understanding is 4 that the only thing that is changed as a result of the 5 uprate is the heat load. The design of the system is 6 not proposed to be changed. The configuration of the 7 system is not proposed to be changed. And moreover, 8 whereas in other elements of the cooling towers they 9 were adding bigger sized motors. Those additions were 10 done for environmental reasons as a result of the 11 State making the requirement. There is no proposal or 12 intention to change the design of the motors of that 13 particular -- 14 JUDGE RUBENSTEIN: But there has been a 15 change in the input value due to the heat. How has 16 that been accommodated? 17 MR. TRAVIESCO-DIAZ: There was an analysis 18 that showed that the capacity of the ACS did not need 19 to be changed. 20 So from the system operation component, 21 there has been no change done or proposed, has been 22 analyzed. Doesn't need to be changed. It's not part 23 of the elements that are being applied for the uprate. 24 JUDGE RUBENSTEIN: You're now giving up a 25 little margin. Is that fair to say? NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comr
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329 1 MR. TRAVIESCO-DIAZ: I suppose So. The 2 contention here, however, doesn't deal with the 3 capacity of the system. I believe some margin may be 4 left behind because they are taking more load with the 5 system and with the extra margin you have the loss. 6 But that's not having to do anything with the 7 contention. The contention -- 8 JUDGE RUBENSTEIN: I want you to 9 understand -- 10 MR. TRAVIESCO-DIAZ: Let me just go back 11 to where we are on this first point. No change in the 12 application, nor referred to. No change in the 13 configuration. So there is no basis to have a 14 contention on this issue because it's not been 15 modified. 16 JUDGE BARATTA: You're relying on that 17 system. You would be relying on that system to 18 operate at the increased power, yes or no? 19 MR. TRAVIESCO-DIAZ: Yes. 20 JUDGE BARATTA: Therefore, doesn't it come 21 into question as part of these power uprates, even if 22 there are no changes to it, you have to demonstrate 23 the adequacy of that system under the operating 24 conditions at which you would be operating at at the 25 increased power. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
330 1 MR. TRAVIESCO-DIAZ: It has been analyzed. 2 It is -- let me cite to you the documents. It's NEDC 3 330-90-P. It's a document dated September 5, 2003, 4 and in fact it does, in the application and it is 5 exactly what you asked. Is the system adequate? The 6 answer is yes. That's why there are no modifications 7 being proposed. 8 The contention doesn't deal with that, 9 however. The contention deals with the seismic 10 capability of the seismic analysis of that particular 11 system, the cells in that particular system. 12 I would be pleased to tell you two things, 13 however. Number one is that in this, we're not making 14 any structural changes to the system, therefore, the 15 only reason why we will make a seismic analysis is if 16 all those things are changed would cause an analysis 17 to be made. 18 Mr. Gundersen and industry say an analysis 19 should be made. I'm representing to you here today 20 that that analysis is being performed. It will be 21 finished by the end of the year. So again, there is 22 no basis to have this contention. What they are 23 asking Entergy to do, Entergy is doing. The reason 24 this has been done is because even though there are no 25 critical changes to the system some conduits are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
331 1 bigger, heavier and other parts of the cooling towers 2 have been changed and because there is a physical 3 change in the weight of -- 4 JUDGE KARLIN: May I ask a question. I 5 guess one of your points is well, NEC is asking for 6 something that we are already doing. We're doing this 7 analysis as we speak. The analysis is not in the 8 application though. 9 MR. TRAVIESCO-DIAZ: It's still being 10 done. 11 JUDGE KARLIN: I know and maybe this 12 represents that there is a -- they've raised a 13 problem. You identified that it's an issue in the 14 sense that you are already doing an analysis on that. 15 What if you were to stop doing an analysis the day 16 after we denied their contentions and say we're not 17 going to do that any more, we'll just throw it in the 18 trash. 19 MR. TRAVIESCO-DIAZ: Well, first of all 20 that's not going to happen. The analysis is on-going. 21 And will be made available if desired to the parties 22 so they can look at it and see if there are new 23 contentions then that arise out of that analysis. But 24 the fact that you're saying we should be doing 25 something that we propose to do does not raise a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 www.nealrgross.com
332 1 contention. 2 JUDGE KARLIN: So if you stop doing the 3 analysis or if the analysis report is completed, it 4 might be the basis for a new contention at that point? 5 MR. TRAVIESCO-DIAZ: Correct. But let's 6 continue with this contention that we have here now, 7 because as I said there are many reasons why it should 8 Obe thrown out. First one is it doesn't challenge the 9 application, but there are no changes to be made. 10 Second, it asks for something to be done 11 that is being done. 12 But the third reason is that all the 13 concerns that they are raising with respect to the 14 analysis that is in place now which they in the 15 declaration admit is in the analysis of record, 16 performed in 1986, which has not been changed, which 17 is still in place. The concerns they're raising in 18 this contention dealt with information that was in the 19 memorandum that talked about somebody is trying to 20 review the files of modifications that were made 21 before 1986 and the person who wrote the memorandum 22 that is referenced here says that he couldn't find the 23 analysis. It's a question of whether those analyses 24 exist or not, but the answer is whatever problems we 25 had then were cured in 1986 when the analysis which is NEAL R. GROSS
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333 1 of record now was made. It's referenced in the 2 declaration as being the current analysis, so there's 3 no contention either, no issue either here. 4 So in that respect, we don't have anything 5 to debate because there is no claim that the analysis 6 that was done in 1986 is defective. That analysis is 7 in place, has been approved by the NRC and in fact, 8 there is no contention that erases that. They are 9 talking of historical things that they infer from the 10 document that they are saying is correlated to things 11 that happened before 1986. 12 So my position is a clear one is that 13 whatever merit there is to those claims, they're 14 irrelevant because they were superseded by analysis 15 that was all-encompassing that analyzed the structure 16 as it was in 1986 and as it is today. So on that 17 basis also there is no reason to have this contention. 18 JUDGE KARLIN: May I ask a question? Ten 19 minutes. Thank you. 50.71 requires each licensee to 20 maintain the current licensing basis and to update it 21 every 24 months, I think it is. And that's a 22 requirement of the existing license. That's not an 23 issue we get into here today. But I think it is an 24 issue to understand that in order to evaluate the 25 uprate, the 20 percent increase from whatever the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.neaIrgross.com
334 1 current basis is, we have to understand what the 2 current basis is. 3 So my question is does Entergy have a 4 current licensing basis documentation set that meets 5 50.71(e)? 6 MR. TRAVIESCO-DIAZ: Absolutely. It is 7 the analysis that was performed in 1986. 8 JUDGE KARLIN: Okay. 9 MR. TRAVIESCO-DIAZ: The declaration 10 admits that that is the analysis of record and it's 11 not a question that they haven't seen it before it was 12 provided to NEC in discovery. They have had it. In 13 fact, it was referred to in the declaration. 14 JUDGE KARLIN: What's your position of 15 having spent $20 million recently to update the 16 current licensing basis? Did I misread something 17 here? 18 MR. TRAVIESCO-DIAZ: I don't understand 19 what you are asking. 20 Anyway, let me make one more point. 21 Assume for the sake of the argument that, in fact, 22 there were irregularities in 1983 and 1985 on those 23 seismic analyses that the person couldn't find which 24 I say is not a problem in any way. It didn't happen. 25 But if it had happened it was cured in 1986. That has NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
335 1 nothing to do with the uprate here. That could be the 2 basis for a 2.206 Petition that your records are not 3 up to snuff, but it has nothing to do with whether 4 this uprate should be approved or not. 5 So for all those reasons this contention 6 has absolutely no basis and should be dismissed. 7 JUDGE KARLIN: Okay, I think time is up. 8 Thank you, Mr. Diaz. Any questions? Okay. 9 Ms. Poole? 10 MS. POOLE: Thank you. I'm going to 11 anticipate the Licensing Board's question in view of 12 the last contention that perhaps, one, you'd like us 13 to further explain our basis with respect to why we do 14 not object to this contention. 15 Looking at the reference provided by NEC 16 what we saw was a document that addressed some of the 17 equipment that might be installed to support the EPU, 18 specifically looking at fans, motors and associated 19 gear boxes that would potentially be placed in a 20 cooling tower. And we were under the assumption of 21 the Staff that those fans, motors and gear boxes would 22 be replaced at some point. 23 Therefore, looking at the document which 24 sets forth the proposition that an analysis ought to 25 be done with respect to those fans, motors and gear NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 vw.neaIrgross.com
336 1 boxes, not taking any position on the adequacy of any 2 analysis that would be performed, looking at the 3 contention admissability requirements, we thought that 4 that was sufficient to form the basis for a 5 contention. 6 JUDGE KARLIN: Okay. Any other argument? 7 MS. POOLE: No other comments. 8 JUDGE KARLIN: Any questions? 9 JUDGE RUBENSTEIN: No. 10 JUDGE KARLIN: Okay. Mr. Block, any 11 rebuttal? 12 MR. BLOCK: Yes. Could I just take a 13 second to confer with Mr. Shadis? 14 JUDGE KARLIN: Yes. 15 (Pause.) 16 MR. BLOCK: A couple of points, if I 17 might. From page 7 of the Gundersen declaration, we 18 note in citing to an e-mail from Mr. Yasi, he's not 19 able to locate the analysis associated with the 20 modifications to determine what force would be 21 required to cause the ties to break. And the ties 22 referred to are steel rods connecting the tower cells. 23 So since there is also in the same records 24 documentation of previous failures in the tower and 25 some efforts to replace pieces there, I believe those NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 2344433 WASHINGTON, D.C. 20005-3701 www.neafrgross.corn
337 1 are in 1996 and 1997, the question becomes since 2 they're all bolted together, if the tower that's 3 relied on for the extra cooling capacity ends up 4 falling into the river, is there going to be less 5 capacity available? 6 All of these towers are bolted together 7 and the fact is that the changes that are made, the 8 new fans in the towers that are not included are 9 providing additional stress for those towers and there 10 isn't -- they do not know what the sheer strengths are 11 of the rods that tie the towers together. They don't 12 know what the sheer strengths are of the bolts that 13 are used either. 14 Excuse me, Mr. Shadis has one more point 15 he wanted me to add. 16 (Pause.) 17 I'm sorry, I misspoke, not the river, the 18 cooling basin is what was meant. But since they're 19 all bolted together and they've put fans in a group of 20 them, the fact that they don't have adequate 21 qualification, that this is clearly admitted in a 22 couple of points in the record raises a serious issue 23 because they are going to end up relying on this group 24 of systems with one other tower on the side in order 25 to provide necessary cooling. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
338 1 The hotter the water, the greater the 2 flow, the greater the load and they've made changes to 3 the fill of the towers and they haven't done proper 4 qualifications on those changes and that's in the 5 record as well. With the larger motors that are there 6 in the other towers, there's going to be greater 7 stress through the towers because they're all bolted 8 together and the same would apply if there's some kind 9 of seismic event. 10 I think that addresses our points. 11 JUDGE KARLIN: Any questions? 12 JUDGE RUBENSTEIN: Is this an omission of 13 analysis issue? 14 MR. BLOCK: Yes. 15 JUDGE RUBENSTEIN: Okay. 16 MR. BLOCK: Yes. And Mr. Gundersen's 17 point is that this should .have been done. One of the 18 points he made on the fill is there's not been -- this 19 is citing from their own records. There hasn't been 20 an analysis of the Class 2 structure to account for 21 the additional fill that was added in the mid-1980s. 22 He makes the point that they've been operating with an 23 unanalyzed condition here for quite some time. I 24 think he says 18 years. So this is a fairly serious 25 thing and I think that's why the Staff probably felt NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 www.nealrgross.com I.
339 1 the same way. 2 JUDGE KARLIN: But our issue is not 3 compliance with the existing permit or license. 4 That's a matter for the Staff and for enforcement. 5 Our issues, the scope here are the delta of the EPU 6 and only that. So the adequacy or inadequacy of the 7 current licensing basis seems only relevant in 8 evaluating where do we measure the 20 percent change 9 from. 10 MR. BLOCK: We wouldn't disagree with 11 that, but we would just point out that this system is 12 a system they're relying on in the uprate and will 13 rely on even more heavily and since it has these 14 defects that are clearly described -- 15 JUDGE RUBENSTEIN: How long has this 16 situation been such that you've been aware of it? Is 17 this something that you've known for quite some time 18 and have you tried a 2.206 on it? 19 MR. BLOCK: Excuse me. 20 (Pause.) 21 Mr. Shadis has pointed out to me that 22 there's a reliance on the fact that the cooling basin 23 must have a 7-day capacity and that's an issue. Mr. 24 Gundersen did file an allegation on this after he 25 found -- went through these documents and found this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
340 1 issue. He filed an allegation with the NRC about the 2 unanalyzed condition. 3 JUDGE RUBENSTEIN: Thank you. 4 MR. BLOCK: Seismic condition. 5 JUDGE KARLIN: All right, I think that 6 completes this one. It's now 5 o'clock. I think we 7 have the opportunity if counsel has no objection and 8 my brethren here have no objections, try to complete 9 contention 5 that Mr. Roisman has indicated might not 10 take that long from his perspective, but with no 11 objections and everyone physically is able, let's go 12 on to 5, with the thought that after that we will then 13 adjourn for the evening. 14 MR. ROISMAN: And to facilitate that, I'm 15 going to reserve 15 minutes for rebuttal. 16 (Laughter.) 17 Just joking. 18 JUDGE RUBENSTEIN: Tomorrow morning. 19 MR. ROISMAN: There was an earlier 20 question -- 21 JUDGE KARLIN: Do you want to -- we'll 22 take you seriously here. 23 MR. ROISMAN: I will reserve five minutes 24 for rebuttal. 25 JUDGE KARLIN: Okay. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 www.neaIrgross.com
341 1 MR. ROISMAN: I think there's no danger of 2 this going on, but there was an earlier question I 3 think, Mr. Chairman, you asked about and we're trying 4 to get the references for the original design criteria 5 and the Staff had referenced them. They are Exhibit 6 1 to the petition filed by DPS. 7 JUDGE KARLIN: All right. 8 MR. ROISMAN: And I would just note that 9 they aren't criteria. They are interim guidance. So 10 this plant was built and conformed to interim 11 guidance, something less significant than Reg. Guide 12 1.82 rev. 3 which we'll get to here in a second. 13 All right, so -- and the other was a 14 reference that I tried to give you and couldn't 15 remember. I think one of the Members asked where were 16 the criteria for the safe shutdown earthquake design 17 criteria too in Appendix A and reads virtually the 18 same from the old draft guidance to the current 19 version. 20 So I must say before today and before the 21 hearing, I thought that contention 5 was kind of a no 22 brainer. You're not supposed to think about economics 23 or need for power when you make safety decisions. And 24 we put it in there to make sure that there was no risk 25 that the Applicant would attempt to defend its use of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
342 1 containment over-pressure on the basis that well, this 2 was the cheapest or the most economical or try to say 3 that it was economically impracticable to come up with 4 anything else. 5 And in a way, the answers that we got back 6 said of course, of course, we don't take economic 7 considerations into account. But as the argument has 8 evolved today, it really goes back to what is this Reg. 9 Guide 1.82 about? And I want to be clear because it 10 is the premise behind which this contention and 11 admittedly contention 1 are based. Reg. Guide 1.82 12 represents the expert opinion of a group of experts, 13 regulatory staff experts and to some extent because 14 they signed off on it, the ACRS. And what those 15 experts said was that the calculations that we outline 16 in here which the Applicant told you they used, the 17 calculations that now appear as VY 0808 revision 5 now 18 or 4 that we're into. These calculations have 19 limitations and we're concerned, but we think they're 20 the best we can do right now and we're going to put 21 them out. Now we've made the containment in this 22 hearing that says that raises a question about whether 23 or not the underlying assumptions that go into those 24 calculations are sufficiently certain to be 25 appropriate, not challenging the calculation. That's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 wwwnealrgross.com
343 1 why we don't specify a particular calculation. We 2 know that the calculation follows the basic outline
- 1. 'w 3 that the Reg. Guide provides and we're not suggesting 4 that it does not.
5 But what we're saying on top of that is 6 that if you're going to use that as your analysis, if 7 that's going to be what you're going to do with your 8 calculation, then we offer our expert opinion that you 9 can't do that unless you take the bitter with the 10 sweet. You can't have the calculation without 11 recognizing what those wise people who wrote that said 12 was the restriction on that. And one of the 13 restrictions they said was you may not use containment C-, 14 over pressure to meet NPSH requirements. And then 15 they said however, in very limited circumstances you 16 may when it's necessary and impracticable to do 17 otherwise. 18 Now what we've done in this contention 5 19 is we've given you two instances in which there is an 20 alternative. One, don't get the uprate as high as 21 you're proposing, thus reducing the temperatures in 22 the torus and the accident scenario, thus reducing the 23 need for containment over-pressure to deal with NPSH. 24 That's Option 1. 25 Option 2, we cited to an example that the NEAL R. GROSS 1\ i COURT REPORTERS AND TRANSCRIBERS
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344 1 Applicant had in its feasibility study, keeping in 2 mind that a feasibility study is not a technological 3 feasibility, but it's also an economic feasibility. 4 Mr. Silberg didn't disavow that. In fact, he said oh 5 sure, we could spend even more money and we could 6 avoid the need for a lot of these things that people 7 are arguing about and he talked about some things, 8 three more pumps or five more whatever. Okay. 9 So I think that this contention is not 10 only valid, but is reaffirmed that this Applicant has 11 to some extent, consciously or unconsciously, 12 deliberately or negligently, put into the back of his 13 head we need this containment over-pressure, because 14 we need to uprate this plant, because we want the 15 extra money that it will bring to us. 16 Now, I agree they haven't written that in 17 so many words. I agree it has to be an inference at 18 this point from what we've seen. It is an example of 19 where very good, hopefully cross examination would 20 help expose that there is no other explanation for 21 need, but our point is that we have expert evidence in 22 the form of the positions taken in 1.82, not 23 conclusive, not because it's a binding thing, but 24 expert evidence that says you're not to use these 25 calculations and consider them to be adequate to deal NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234.4433 WASHINGTON. D.C. 20005-3701 www.nealrgross.com
345 1 with NPSH, unless you take the bitter with that sweet 2 that we're giving you which is a fix to a problem that 3 at the moment when they did it, they didn't have a fix 4 for it. Unless you accept the limitation that you're 5 not going to get to use containment over-pressure to 6 meet NPSH requirements or that you can only use it in 7 very limited cases. 8 JUDGE KARLIN: What do we do with the 9 Staff that say they ignore these prerequisites to 10 1.82, necessity. That's what I thought I heard them 11 say. They don't pay any attention to that. They 12 evaluate on the bottom line safety issue. 13 MR. ROISMAN: The short answer to that is 14 that as you know what the Staff does is irrelevant in 15 this hearing. If they came out and said this plant 16 should be denied a license, the Applicant would have 17 a perfect right to come to you and say we're entitled 18 to one and they're just one opinion. 19 JUDGE KARLIN: All right. 20 MR. ROISMAN: So the fact that they that 21 they don't consider it, has nothing to do with the 22 question of whether or not the only way the Applicant 23 is able to justify it, the only way the Applicant is 24 able to say these calculations are acceptable evidence 25 of compliance with the NPSH issue, is to show us how NEAL R. GROSS ,> COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.cor
346 1 containment over-pressure meets what those wise people 2 who wrote that Reg. Guide had in mind. 3 So far, we have a disagreement with what 4 these words mean, need and impracticable. And this 5 contention says and it's there -- if you will, it's a 6 safety net contention. It says if they can't come up 7 with a non-economic justification in which they can 8 defend those calculations, not because they're in 9 1.82, but independently, and we have the authors of 10 1.82 who say these calculations are very iffy and not 11 strong enough to justify using containment over-12 pressure, if they can't do that, then this says well, 13 they can't come back and say hey, we've already got 14 $60 million sunk into uprate. You've got let us go 15 ahead. 16 JUDGE KARLIN: If we posit the economic 17 considerations and costs can't come into play, do you 18 have any definitions of need or no practical 19 alternative which you would proffer here? 20 MR. ROISMAN: Yes, the need would be and 21 it goes back to our discussion about the backfit rule 22 and with the Board's indulgence if you look at the 23 backfit rule, 50.109(a)(1), it's very clear that what 24 is being talked about is the imposition of a 25 requirement by the Staff for the Commission in a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. 1I (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
347 1 situation in which the Applicant has done nothing but 2 just sit there. That's what that statement is saying. "' ( :..:. 3 It's not covering the situation where the Applicant 4 comes forward and asks for something new and you in 5 your best judgment think that well before they can do 6 that something new they have to meet this requirement. 7 That's not what it says. 8 JUDGE KARLIN: Is that to say every time 9 an Applicant comes forward with any modification 10 request and maybe there are quite a few of them over 11 the years that might be minor, that it's a gotcha and 12 at that point they have voluntarily requested some 13 change and therefore the Staff can impose every new 14 requirement that's been promulgated in the interim? 15 MR. ROISMAN: No, because -- 16 JUDGE KARLIN: You're saying there's a 17 linkage? 18 MR. ROISMAN: Well, first there's the 19 linkage issue, but more fundamentally, only when 20 there's a design basis change. In other words, if 21 this were to change -- remember, I mentioned this 22 before. We're not trying to argue anything other than 23 when you want to change your design basis to raise 24 your power level by 20 percent, then -- and you do it 25 voluntarily, then that's not a backfit situation and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.neatrgross.com O.,
348 1 if there's a linkage between that and one of these 2 new, improved evaluations, you should have to go 3 through one of these. 4 JUDGE KARLIN: My question again and we 5 talked about this before, there's probably been 6 hundreds if not thousands of voluntary requests for 7 changes, amendments to licenses over the history of 8 the Nuclear Regulatory Program, voluntary requests. 9 Can you cite me any of them where additional 10 requirements have been imposed? 11 MR. ROISMAN: Well, first of all, the vast 12 majority of those are no significant hazards 13 considerations. 14 JUDGE KARLIN: Well, I'm not sure how 15 that's relevant. 16 MR. ROISMAN: Well, it is relevant in this 17 respect, that if it's a no significant hazards 18 consideration, it's a way of saying you're not making 19 a design basis change here. 20 JUDGE KARLIN: You don't need to have a 21 permit, a license -- a right to a hearing when a 22 chance occurs? 23 MR. ROISMAN: All we're saying is if it's 24 a design basis change, that's when -- and as a 25 voluntary one, that's when this would come in, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 2344433 WASHINGTON. D.C. 20005-3701 wvw.nealrgoss.com
349 1 replacing pump A with a new version of pump A or 2 reseating your valves or even changing the form of the 3 strainer that you're using in your torus are not those 4 kinds of changes. 5 JUDGE RUBENSTEIN: What I hear is an 6 argument which says analogous to NEPA that they 7 haven't given it a hard look. Is that sort of what 8 you're saying? 9 MR. ROISMAN: Frankly, I think what it 10 says is that at this point they have not come up with 11 a valid reason why they should disregard the judgment 12 of the people who wrote Reg. Guide 1.82 which we 13 embrace. So my expert agrees with those experts that 14 you shouldn't use containment over-pressure to meet 15 NPSH. 16 JUDGE RUBENSTEIN: Okay, so when I look at 17 this contention for admissability, I'm going to narrow 18 it down to that argument that here are some 19 knowledgeable people who said don't use it unless you 20 need it and you're not talking to any criteria or help 21 to us on how to evaluate that need. So I reject 22 economic considerations or I reject help in looking at 23 criteria for capability of alternatives. What am I 24 left with? I'm left with my interpretation of the 25 Reg. Guide. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 wwwneaIrgross.com
350 1 MR. ROISMAN: That's what I tried to 2 finish and I'm sorry, I got a little distracted 3 myself. My point and the reason i was talking about 4 the backfit is under this circumstance, we believe 5 that the only thing that meant need and impracticable 6 was that where the Staff was imposing on the Applicant 7 a condition which then made its NPSH calculation fail 8 unless it could take containment over-pressure, that 9 in those limited cases, not uprates, not voluntary 10 movements. That was the kind of need. In other 11 words, a need which was generated by an action taken 12 by the Staff and that in fact, happened. After this, 13 in its earlier iterations, after this guide came out, 14 before the rev. 3 came out, the Staff was allowing 15 containment over-pressure to companies that were 16 coming in not with an uprate, but coming in just 17 because at our present power level, if we do what you 18 tell us to do for NPSH, we're falling short. 19 JUDGE RUBENSTEIN: But you also spoke to 20 motivation that they want more power to make more 21 money, but one can alternatively say it's a national 22 goal to go to energy independence. Electrons are not 23 fungible. They're easily transferred over the grid to 24 anywhere in the country. I don't want to get into 25 that. I'm not proposing that as an argument. I'm NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 www.nealrgross.com
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351 1 just saying we can't get pulled into that kind of an 2 argument. 3 MR. ROISMAN: And I agree. I agree that 4 the way this should be decided is that you should 5 decide whether or not the calculation, the assumptions 6 underlying the calculations that are in VY0808 have 7 sufficient certainty that you're willing in the face 8 of the evidence that we'll present, which will include 9 the Reg. Guide backups and the ACRS transcripts and 10 whatever and Mr. Sherman's testimony, that this plant 11 needs to use containment over-pressure without 12 considering at all energy independence, need for 13 power, economic costs to the Applicant. And we think 14 that the definition of need is this narrow one that 15 says the Applicant is being forced to uprate by 16 something the Staff is doing. We think they're not, 17 but that's the thrust of the contention. 18 JUDGE RUBENSTEIN: If you go back to the 19 explicit language of your contention, you say that 20 containment over-pressure has a credit to meet NPSH, 21 is necessary in failure, to use it is impracticable 22 because of economic or need for power consideration. 23 And I guess we'll try Entergy and the Staff on how do 24 evaluate the practicable. 25 JUDGE KARLIN: Okay. Any other questions? NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
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352 1 Anything else, Mr. Roisman, at the moment? 2 MR. ROISMAN: No. 3 JUDGE KARLIN: Mr. Wachter, can you call 4 the time? That's a five-minute -- you have five 5 minutes retained. 6 MR. ROISMAN: Thank you. 7 JUDGE KARLIN: Okay, Mr. Silberg. 8 MR. SILBERG: We talked a little bit 9 earlier about moving targets and I think this 10 contention is probably the greatest example of a 11 moving target. It's morphed about five times just 12 within the last 15 minutes. 13 But let me point out that we did evaluate 14 the need for power and the need for the uprate and 15 it's in the application, because the application is 16 required to include an environmental assessment 17 report. We did that. We said what the needs were. 18 We said why we were doing it. We said what the 19 benefits were. We said what the costs were. 20 There is no contention relating to the 21 environmental assessment. Therefore, need for power, 22 cost benefit, I mean that's where those issues belong. 23 That's not what we're here today for. What we have is 24 the DPS making a mountain out of a regulatory guide 25 molehill. I think we've established that Reg. Guides NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.neatrgross.com
353 1 are not regulations. They're not requirements. 2 Mr. Roisman said that we used the 3 calculations outlined in the Reg. Guide. I think what 4 we said is we used the Reg. Guide as guidance in 5 developing our calculations. There are no, as far as 6 I know, calculations outlined in the Reg. Guide. 7 In fact, what DPS would have us do is put 8 us in a position where we really needed to make -- to 9 use containment over-pressure in order to keep the 10 plant running and we could have done that. How could 11 we have done that? We could have put in very small 12 strainers in the torus so that we would have had a lot 13 of blockage. We didn't do that. We went to the 14 maximum size strainer so we would minimize the impact 15 of blockage and have the most NPSH, but the direction 16 that they would like to drive us is make this a 17 necessary change. So design the plant as 18 unconservatively as you possibly can. That's not what 19 we did and the idea that we consciously, 20 unconsciously, deliberately or negligently decided we 21 were doing this to make money, of course, the purpose 22 of any change to the plant is to keep the plant 23 running, improve performance, make it safer. 24 The idea that we should only do these 25 things if forced to, that we should only do these NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 2344433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
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354 1 things in order not -to make more money is just 2 ludicrous. The purpose of any project by a private 3 entity is for that entity's benefit. In this case, 4 generating power for the needs of the citizens of 5 Vermont and those -- 6 JUDGE KARLIN: I understand that point, 7 but going back to the necessity, I just -- we had this 8 dialogue earlier today. I'm struggling with a 9 definition or concept for it. It seems like there is 10 a regulatory or there is a general rule, no credit for 11 containment over-pressure. Now there is a Reg. Guide, 12 not regulation, that says we should get credit for 13 containment over-pressure when it's necessary. 14 MR. SILBERG: And also, there's no 15 regulation prohibiting it. 16 JUDGE KARLIN: There's no regulation. 17 Okay, but I mean okay, we cited this Reg. Guide. 18 We're going to use it. We're going to apply it and we 19 think it's necessary. Well, what does necessary mean? 20 Necessary means well, we can't comply unless you cut 21 us the slack. I mean that's really not a very good 22 definition, it seems to me. 23 MR. SILBERG: I think you have to ask the 24 Staff what the definition was, but I think this gets 25 back into the whole problem of litigating a Reg. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. II (202) 2344433 WASHINGTON, D.C. 20005-3701 www.neaIrgross.com
355 1 Guide. The --purpose here is to litigate the 2 application. Our application doesn't depend on 3 necessary or practicably alter -- the State would like 4 to move it in that direction, but that's not what the 5 application is. That's not what the Staff has 6 reviewed. 7 The Staff is going to evaluate our 8 application to see whether it's safe. That's the only 9 issue that's involved here. Yes, they might have 10 raised a NEPA issue if they chose to do so. They 11 didn't. It's too late to do that now. That could 12 have gotten into cost and benefit. Those issues are 13 not on the table here. 14 What we're talking about here is a safety 15 issue. It's not a question of disregarding or 16 regarding the judgment of the authors of a Reg. Guide. 17 The purpose is to regard or disregard the content of 18 our application and that's where the focus should be. 19 Should the Board decide that the 20 calculations are sufficiently certain, well, if they 21 admit a contention that says that that's what's 22 involved, then obviously that's something the Board 23 should do. We think that as discussed in our briefs 24 and earlier, we've shown that the calculations are not 25 uncertain, that we have bounded them with lots and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.neaIrgross.com
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356 1 lots of conservatism.- But if that's an issue that the 2 Board admits, then that's what we will litigate. But 3 the idea of litigating necessity and feasibility are 4 really outside the scope of the Atomic Energy Act. 5 That may be something that internally the Staff wants 6 to consider. They have expressed a preference not to 7 use containment over-pressure. That's in a document 8 which is now several years old. They have approved a 9 number of license amendments that use containment 10 over-pressure. They are obviously evaluating the 11 safety of that as they move along. 12 To take a non-regulation and turn it into 13 a Licensing Board requirement really turns the system 14 on its head. If you were to find that we haven't 15 proved it was necessary, would you deny the 16 application, notwithstanding the fact that we have 17 demonstrated to the Staff and we think to the Board 18 that this is safe. It's simply outside the scope of 19 the proceeding. I think, respectfully, it's outside 20 the scope of the Board and we ought to stick with the 21 safety issues. 22 JUDGE BARATTA: This pertains to the 23 approach that he used for obtaining the results that 24 you've got in VY 0808. First off, to do a containment 25 analysis you need to have the input that's coming in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.neaIrgross.com
357 1 from the reactor to do the break. 2 Could you be very specific as to did you 3 do an Appendix K analysis and if so, did you do the 4 new Appendix K, i.e., a best estimate analysis or was 5 it just simply based on decay heat curve or what? 6 Could you be specific with respect to that? 7 MR. SILBERG: I'll try. 8 JUDGE BARATTA: And there's a second part 9 to the question too, so I don't know whether I should 10 state that now or -- 11 MR. SILBERG: Let me be a translator. We 12 used an Appendix K analysis, using 1979 standards for 13 decay heat with uncertainties. And I swear that 14 that's the correct answer, Your Honor. 15 JUDGE BARATTA: Okay, all right, that 16 means something to me. Okay. Now the next question 17 I have is that I assume based upon that response that 18 you did not do a couple primary system containment 19 analysis, that you did a stand-alone containment 20 analysis where the reactor input was dependent upon 21 time probably, but there was no feedback from the 22 containment to the reactor. 23 MR. SILBERG: That is correct. The mass 24 and energy was taken from a primary system LOCA 25 analysis. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234.4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
358 1 JUDGE BARATTA: Okay -- 2 MR. SILBERG: And input into the 3 containment analysis. 4 JUDGE BARATTA: Now continuing with that 5 train of thought, that's an older methodology and 6 there are new methodologies called best estimate LOCA 7 analysis with quantification of uncertainties that are 8 allowed by the regulations. If you go into Appendix 9 K, well, not actually Appendix K, the reference where 10 Appendix K is reference, one will find that and those 11 are construed to be less conservative than the 12 conservative Appendix K by most people. And that, I 13 think, is fairly well known. 14 Now if you were to comply with what I 15 think I've heard that the State would like, that is to 16 re-analyze the system, one could then go back and do 17 that analysis and obtain a less conservative result 18 which may or may not give you the same answer, but 19 will give us conservative -- is that true? 20 MR. SILBERG: We believe that's true and 21 I think that's probably true in a number of areas. 22 For instance, if you were to redo your seismic 23 analysis and you used probabilistic seismic hazard 24 analysis methodologies, you might well come up with a 25 __ NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 www.nealrgross.com
359 1 JUDGE BARATTA: That was my next question, 2 too. 3 MR. SILBERG: We have submitted an 4 analysis in the RAI, doing a best estimate analysis 5 under Appendix K and comparing it to the conservative 6 analysis that we've used. 7 JUDGE BARATTA: Was that done using the 8 best estimate methodology? 9 MR. SILBERG: It was done in-house using 10 their Gothic code. 11 JUDGE BARATTA: Okay, Gothic for 12 containment analysis. 13 Thank you. 14 MR. SILBERG: And IVm told that this is 15 all laid out in our response to NRC's RAI. 16 We can give you that reference. It's in 17 RAI Response 10 which is July 2nd of this year. 18 JUDGE KARLIN: Anything else, Mr. Silberg? 19 MR. SILBERG: None, unless you have other 20 questions that I can translate. 21 JUDGE KARLIN: No. I think that's fine. 22 Thank you. 23 Ms. Poole. 24 MS. POOLE: Thank you. I want to say 25 again, first of all, that the NRC Staff makes no NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234.4433 WASHINGTON. D.C. 20005-3701 www.neafrgross.com
360 1 judgment on whether a proposed license amendment such 2 as the power uprate request is necessary from a cost 3 benefit or economic standpoint as long as the proposed 4 changes satisfy NRC requirements and ensure safe 5 operation of the facility. 6 Now with respect to your practicability 7 question that I imagine we're going to be asked, the 8 NRC has allowed credit for containment over accident 9 pressure in calculating the available NPSH of the ECCS 10 and containment heat removal pump in some BWRs and in 11 fewer cases, PWRs. 12 Some licensees, we have accepted analysis 13 in which some licensees have credited containment 14 accident pressure for NPSH calculations when the 15 existing plant design cannot be practicably altered, 16 e.g., replacement of ECCS pumps, in order to maintain 17 the calculated available NPSH greater than the 18 required NPSH. And we stated publicly that the 19 licensees' determination -- 20 JUDGE KARLIN: May I -- are you reading 21 from your brief? 22 MS. POOLE: No, I'm not. I'm reading from 23 a letter that's -- this is a letter I quoted earlier. 24 It's to the Vermont Department of Public Service. 25 JUDGE KARLIN: I see. Is this this huge NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
361 1 letter that they're pointing to that's 500 pages long? 2 MS. POOLE: I don't believe so, no. 3 That's a FOIA response. This is something different. 4 JUDGE KARLIN: Oh, that's a FOIA response. 5 MS. POOLE: This is a June 29th letter. 6 In any event, we have stated that the licensee's 7 determination that he design cannot be practicably 8 altered is what was intended by the statement that 9 credit for containment accident pressure may be 10 necessary. 11 Now we understand that that's a tautology 12 in a way and my expert advises me that the Staff has 13 made a decision not to use this criterion for this 14 application. It's been a pure safety analysis and we 15 wouldn't grant permission to utilize containment over-16 pressure unless the safety evaluation supported it. 17 Now that will have to be verified, of 18 course, in the final SER, at the time that it is 19 completed. Perhaps that answers your question about 20 practicable, perhaps not. 21 JUDGE KARLIN: That's helpful. 22 MS. POOLE: I have nothing further, unless 23 the Board has questions. 24 JUDGE KARLIN: Questions? 25 JUDGE BARATTA: No thank you. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234.4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
362 1 JUDGE KARLIN: Mr. Block, I think you have 2 five minutes reserved on rebuttal? Mr. Roisman. You 3 can argue for him. 4 MR. ROISMAN: I'm sure he could do a great 5 job at it too. 6 okay, let's talk about these. The 7 Applicant now tells us, well, we did take need for 8 power and economic considerations into account, but we 9 did it in a NEPA analysis. And then they say what 10 difference does it make, no one is challenging the 11 NEPA analysis. 12 We don't see that that's even relevant 13 until the Staff has completed its NEPA analysis, but 14 let's put that to the side because everyone agreed 15 that if you passed a NEPA analysis and you're not 16 safe, you don't get a license anyway, even if NEPA 17 says wow, this would have been a great idea, but the 18 safety side says yeah, but it's not safe. So that 19 doesn't matter. 20 The second thing is is that the Applicant 21 says well, you know, we actually used the larger than 22 necessary strainer here. If we used a much smaller 23 strainer, then we would have needed a lot more 24 containment over-pressure. So I looked at the letter 25 that they sent to the NRC which they cited a number of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 2344433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
363 1 times, dated December 29, 1999-to see where did they 2 say in here that they're using a larger strainer than 3 they need to, or that they've built in any 4 conservatism or they've minimized containment over-5 pressure. And there's, of course, not a single word 6 about that in the document. So this is a fiction 7 created by Mr. Silberg for purposes of oral argument 8 today. There's nothing to say that. 9 JUDGE KARLIN: I think he was saying that 10 they could have used a smaller strainer and this would 11 have increased the necessity in some way. I'm not 12 sure whether I heard him saying they intentionally 13 used a larger one. 14 MR. ROISMAN: What it says here and I'll 15 quote from the beginning of the letter, "in accordance 16 with the requested actions, Vermont Yankee is 17 informing the Staff of the completion of our actions." 18 So it sounds like they were requested to do something 19 and they then did it. I'm just saying that on the 20 face of the document and we're not here arguing 21 whether or not at the end of the day what the evidence 22 is going to show. What we're saying is and this gets 23 finally to the last point that I want to make which is 24 that Mr. Silberg says well, we've got all these 25 conservatisms built in that already take account of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
364 1 all these things. All the conservatisms that he's 2 talking about are conservatisms that are built into 11._/A C', 3 the calculation of post-accident containment, 4 temperature and pressure, but the uncertainties which 5 are the core of what produced Reg. Guide 1.82 6 prohibition on using containment over-pressure were 7 the uncertainties associated with debris blockage. 8 Those are the uncertainties that we believe make the 9 calculation that has been run by the Applicant 10 insufficiently conservative to justify doing this 11 double count, if you will, of bringing in containment 12 over-pressure to deal with a problem. 13 Now if they had to deal with it because 14 the Staff's obligations which this December letter 15 says we're now meeting had forced them to have to take 16 containment over-pressure, then they would have had a 17 quote need and it would have been impracticable 18 whenever the Staff has done in those other cases would 19 have been applicable. 20 In this case, that's not what's happened. 21 This wouldn't be necessary if this uprate application 22 were not before you and that's evident by the fact 23 that between December 1999 and now the Applicant has 24 never asked for any containment over-pressure credit. 25 Our point is that is not safe enough and our basis for NEAL R. GROSS \4' COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 w.nealrgross.com
365 1 -. that is thatV there are uncertainties. And our 2 articulation of what the uncertainties are is 3 supported by one, what Mr. Sherman says; two, what the 4 ACRS said in commenting on Reg. Guide 1.82; three, 5 what the Staff wrote in Reg. Guide 1.82. That's the 6 evidence that we're now offering. That's not all our 7 evidence. There will be more evidence, but that's, we 8 believe, sufficient amount of evidence to one, 9 demonstrate that the contention number two which is 10 based upon the uncertainty question should be 11 admissible and that contention 5 which says you can't 12 solve the uncertainty problem by using containment 13 over-pressure just because it's cheaper, is not a 14 satisfactory answer. 15 JUDGE KARLIN: Thank you. Any questions? 16 I think we're done for the day. 17 JUDGE BARATTA: Before we go off the 18 record, I have a request. It doesn't pertain to the 19 contention, but you, I think in one of your earlier e-20 mails said that you could provide an electronic copy 21 of the attachments because I didn't get those at some 22 point and I would like it if you have those. 23 MS. HOFMAN: I will get those. 24 MR. ROISMAN: Our electronic expert. 25 JUDGE BARATTA: If you have them on CD or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON. D.C. 20005-3701 www.nealrgross.com 11
366 1 something like that, I would appreciate it. 2 MR. ROISMAN: You're not talking about 3 between now and tomorrow? 'I' 4 JUDGE BARATTA: No, no, no, no. At your 5 convenience. I like to be able to put everything on 6 a little chip. 7 MR. SILBERG: If we could put ourselves on 8 that same mailing list for an electronic copy. 9 JUDGE KARLIN: I'm sorry, what is this? 10 JUDGE BARATTA: The e-mail that goes back 11 12 MR. SILBERG: To the initial petition. 13 JUDGE BARATTA: Right. 14 MR. SILBERG: The exhibits were only 15 transferredI in hard copy, not electronically. 16 JUDGE BARATTA: When it's convenient and 17 you have itIs it would be appreciated. 18 MS. HOFMAN: We have all of it. 19 JUDGE BARATTA: Whenever you have it. I 20 don't want to put you out. 21 JUDGE RUBENSTEIN: And thank you for 22 second them in three loads. My computer fell off the 23 table. 24 JUDGE KARLIN: This is not a secure 25 facility. Other people will be here tonight. Take NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.corn
367 1 your risks if you want to leave it or take it home. 2 With regard to tomorrow, first I'd like to 3 thank the parties for a very effective and I think 4 efficient argument today. I think it's been very 5 helpful and moved reasonably well. I'd like to 6 convene tomorrow at 8:30 in the morning, so that we 7 can move ahead crisply. There's no reason to wait 8 until 9. I believe most of us usually start work 9 before 9 o'clock around, so we'll start at 8:30 and 10 look forward to it. 11 Thank you very much. 12 (Whereupon, at 5:40 p.m., the pre-hearing 13 conference was adjourned, to reconvene tomorrow, 14 Friday, October 22, 2004 at 8:30 a.m.) 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 2344433 WASHINGTON, D.C. 20005-3701 www.neaIrgross.com
CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission in the matter of: Name of Proceeding: Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. Docket Number: 50-271-OLA and ASLBP No.04-832-02-OLA Location: Brattleboro, VT 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. Peter Holland Official Reporter Neal R. Gross & Co., Inc. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 2344433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
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