ML043060235
| ML043060235 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee  |
| Issue date: | 10/22/2004 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| Byrdsong A T | |
| References | |
| 50-271-OLA, ASLBP 04-832-02-OLA, NRC-53, RAS 8735 | |
| Download: ML043060235 (193) | |
Text
945 g735- Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
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 22, 2004 Work Order No.: NRC-53 Pages 368-558 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433 em,pla-te = scEcyL 3.'V. I~C- S cc-Y- 0;;L
368 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
+ + + . .+
ATOMIC SAFETY AND LICENSING BOARD (ASLB)
PRE-HEARING CONFERENCE PRE-HEARING 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.
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369 APPEARANCES:
On Behalf of Applicants Entergy Nuclear Vermont Yankee. LLC and Entergv Nuclear Operations, Inc.:
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 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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370 On Behalf of the New England Coalition:
JONATHAN M. BLOCK, ESQ.
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 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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371 I-N-D-E-X Contention 1 New England Coalition - Mr. Shadis 373 Entergy - Mr. Rosinski . . . . . . . 389 Contention 2 New England Coalition - Mr. Block 398 Entergy - Mr. Travieso-Diaz . . . . . 408 Rebuttal New England Coalition - Mr. Block 419 Contention 3 New England Coalition - Mr. Shadis 422 Entergy - Mr. Travieso-Diaz . . . . . 433 Contention 5 New England Coalition - Mr. Block 454 Entergy - Mr. Rosinski . . . . . . . 461 Contention 7 New England Coalition - Mr. Shadis 473 Entergy - Mr. Rosinski . . . . . . . 487 Vermont Public Service - Mr. Roisman 496 Rebuttal New England Coalition - Mr. Block 510 Entergy - Mr. Travieso-Diaz . . . . . 517 Staff - Ms. Higgins . . . . . . . . . 533 Vermont Public Service - Mr. Roisman 546 New England Coalition - Mr. Block . . 551 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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372 1 P-R-O-C-E-E-D-I-N-G-S 2 (8:30 a.m.)
3 JUDGE KARLIN: Good morning. My name is 4 Alex Karlin. I'm a Judge, a member of the Atomic 5 Safety and Licensing Board for this matter. To my 6 right is Judge Baratta, Anthony Baratta, Dr. Baratta; 7 and on my left is Judge Lester Rubenstein.
8 Yesterday I gave an introductory sort of 9 description of what the nature of this proceeding was.
10 If there are any -- are there any new members of the 11 public here who might need to have some information on 12 that? Seeing none, I will not repeat that 13 introductory discussion.
14 But I do want to reflect for the record 15 that we're here to conduct a prehearing conference and 16 oral argument in the matter of Entergy Nuclear Vermont 17 Yankee, LLC, and Entergy Nuclear Operations, Inc.,
18 Docket Number 50-271, ASLBP Number 4-832-02-OLA.
19 This prehearing is being held pursuant to 20 an order issued by this Board on October 1st, and then 21 on October 18th.
22 Today's date is October 22, '04, and we 23 are in the Brattleboro Middle School.
24 I'd like to thank counsel for all the 25 parties and pro se representatives for the thoughtful NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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373 1 and I think well-reasoned presentations and answers to 2 our questions yesterday. I think that was most 3 helpful in our thinking and understanding of this 4 case.
5 Today we start with the New England 6 Coalition contention number 1. If I'm correct, that's 7 where we left off. And if there are no other 8 questions, we can proceed.
9 Mr. Shadis and Mr. Block, whichever one is 10 going to conduct this.
11 MR. SHADIS: I'll be handling the QA/QC 12 contention. That's --
13 JUDGE KARLIN: Okay.
14 MR. SHADIS: -- what we call it. I just 15 need to state --
16 JUDGE KARLIN: Any rebuttal time you want 17 to reserve? You have, what is it, 20 minutes I think.
18 MR. SHADIS: Thank you. Whatever time is 19 unused. I'd like to try to reserve about 10 minutes, 20 but--
21 JUDGE KARLIN: Okay.
22 MR. SHADIS: -- hopefully you'll have some 23 questions, and we'll see how that goes. Thank you.
24 I'm going to put voice to something that 25 cannot otherwise be entered in the record, and it is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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374 1 a letter, I swear, that I received from an anonymous 2 employee of Entergy. It says, "Dear Mr. Shadis" --
3 JUDGE KARLIN: Could you get closer to the 4 mike, perhaps? I think we all need to be careful for 5 that, just --
6 MR. SHADIS: Thank you.
7 JUDGE KARLIN: Thank you.
8 MR. SHADIS: It refers to criticisms that 9 I had levied publicly with respect to quality 10 assurance/quality control at Vermont Yankee. And it 11 says, "
Dear Mr. Shadis:
I cannot believe how true 12 your words ring. Their in-house inspection program is 13 worthless. The truth is: what in-house inspection 14 program? Attached is a copy of an" --
15 MR. ROSINSKI: Judge Karlin, if I may?
16 JUDGE KARLIN: Yes?
17 MR. ROSINSKI: We object to this. This is 18 not in the record, and it's --
19 MR. SHADIS: May I respond to that, 20 please?
21 JUDGE KARLIN: You're objecting it's not 22 -- I am concerned with this, Mr. Shadis. Is this some 23 cover letter which is perhaps cover to this exhibit 24 that you --
25 MR. SHADIS: It is a cover letter to the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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375 1 memorandum that we entered into evidence, and I will 2 remind the Panel respectfully that yesterday we had 3 mega evidence and evidentiary testimony introduced 4 that was not in the record and was not in the 5 Licensee's reply, it was nowhere in the record. And 6 I'd just presume that that was the standard you're 7 operating under now.
8 JUDGE KARLIN: Well, there was a point 9 yesterday when counsel for Entergy started using a 10 document, which we did not allow that document to be 11 used or brought into evidence. I think you have in 12 your pleadings attached the relevant memorandum, and 13 you have in your pleadings reflected that it is from 14 what you said was a whistleblower.
15 I think that will suffice, and, therefore, 16 I will sustain that objection. Perhaps you can couch 17 your argument with regard to the exhibit you did 18 provide us, which I think is helpful.
19 MR. SHADIS: Well, then, I will make his 20 words mine based on the experience. And, essentially, 21 what I learned was that a QA/QC program in which there 22 is no independence, in which the workers/employees 23 cannot be assured that there will not be some 24 influence from their direct manager, from the person 25 who is responsible, for example, for costs on a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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376 1 project, to greet any QA/QC problems in an unfriendly 2 fashion. And so there is a chilling effect built into 3 it.
4 I will tell you -- reaffirm that the 5 memorandum that I entered into evidence was received 6 anonymously from an employee who stated that he could 7 not sign his name, nor should I reveal the postmark 8 from which that document was sent. And I think it's 9 -- if nothing else, it's some evidence that employee 10 concerns are not what they should be in the Entergy 11 Corporation.
12 Nonetheless, proceeding to the memorandum 13 itself, in Entergy's reply, in the Licensee's reply, 14 we were taken to task for not referencing their QA 15 Manual. And what we found -- we did find a copy of it 16 after, you know, taking to heart their admonition.
17 That QA Manual was an Entergy manual, 18 which was incorporated as the Vermont Yankee QA Manual 19 last year. In it it stipulates that concerns should 20 be brought to Mr. Jay Thayer, the site Vice President.
21 And this is more than a little problematic from our 22 point of view in terms of whether or not there can be 23 independence or resolution of the -- of any issues 24 brought in about QA/QC.
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377 1 made every effort to review extended power uprate 2 materials passing across Mr. Thayer's desk during 3 proceedings before the Public Service Board, and in 4 spite of that Board's order to compel production of 5 discovery, and in spite of two letters from Mr. Thayer 6 stating that they would reform the discovery process 7 within the company and be forthcoming, there was not 8 a single document that was produced in discovery that 9 had passed from Mr. Thayer directly or in which he was 10 designated the principal recipient.
11 I think with that atmosphere in the 12 company, that atmosphere of withholding of information 13 of secretiveness, I don't know how NRC can place any 14 confidence in the representations of that company with 15 respect to QA/QC.
16 And I think that the Panel must agree that 17 because NRC is an auditing agency that they have to 18 rely on the truthfulness and the candor of their 19 licensees in order to be able to regulate, in order to 20 be able to ensure public health and safety. And this 21 is not the case here.
22 We referenced in our pleading the 10 CFR 23 54 and were chastised in the reply by Entergy that 24 this was not a requirement for a QA/QC program, but, 25 rather, that it was a reporting requirement. In fact, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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378 1 the first sentence under 50.54 says that the company 2 shall maintain a QA/QC program.
3 I'm speaking from the top of my head, 4 because I don't feel I have the time to go dive in the 5 book. But I think if you look at it, you'll see 6 that's the first line.
7 JUDGE KARLIN: Well, I think you're right 8 that 50.54 does require a description of the QA 9 program. I thought that Entergy's point was that the 10 QA functions, and exactly how it functions, that some 11 of the details do not need to be in there. But they 12 have a program that is in place, and that the 13 regulations simply require that there be a program, 14 and that they have one.
15 MR. SHADIS: Quite so. You're quite 16 correct. And I will point out that a little further 17 along in 50.54 we get into the reporting requirements, 18 and it does report the necessity or it does require 19 reporting if the program is diminished in any way, if 20 it steps back from the standards.
21 Also, at the bottom of that very first 22 page in 50.54 is the reference to Appendix B, and also 23 cites to other parts of the regulation. And there we 24 find the description of the QA/QC program, the 25 description -- the prescription for it as being NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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379 1 independent, and a freestanding -- that would presume 2 that means a freestanding program.
3 What we find in Entergy's QA Manual is not 4 a freestanding program, but, rather, that the 5 employees of various departments are assigned QA/QC 6 tasks, and that partly preserves that independence.
7 I would offer you that this whole question 8 of the independence of the QA/QC program -- and also 9 its reliability at Entergy VY is matter for 10 interpretation, and it is a matter of dispute between 11 us and the company. I will point out that since they 12 tried to introduce evidentiary material in their 13 reply, although they didn't provide us with a copy, 14 they simply referenced it, they are confirming that 15 there is a dispute between NEC and the Licensee. In 16 essence, they are making that argument.
17 So I'm going to close with that. And if 18 you have any questions, I'd be glad to try to answer 19 them or reserve the remainder of my time here, 20 whatever that may be.
21 JUDGE BARATTA: I'd like to get further 22 amplification on how this ties in to the power uprate 23 request that -- application that is the subject of 24 this hearing. Could you expound a little bit on that?
25 I --
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380 1,
1 MR. SHADIS: Certainly. I don't have the 2 letter in front of me, but the State of Vermont asked 3 NRC to independently confirm the calculations in the 4 extended power uprate application. And NRC said they 5 would independently confirm some calculations, not 6 others.
7 To me, what that connotes is that they are 8 depending upon the accuracy of the calculations as 9 provided by the Licensee, and ultimately are relying 10 on the QA/QC program, at least insofar as inspection 11 -- I mean, excuse me, engineering and possibly for 12 determining the present material condition of the 13 plant for in-service inspection and maintenance.
14 And if QA/QC isn't functional there, then 15 the information they're being fed with respect to the 16 EPU cannot be relied on.
17 JUDGE BARATTA: All right. Your pleading 18 says that because power uprate assumes -- I'm going to 19 paraphrase a little bit.
20 MR. SHADIS: Sure.
21 JUDGE BARATTA: That the base plant has a 22 minimum number of defects. There's no assurance that 23 without stand-alone or at least NRC-approved 24 integrated QA/QC programs, that that will be the case, 25 I think is what you're saying. So that is the main NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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381 1 thrust of your concern with respect to power uprate, 2 or -- because there are different aspects of QA/QC.
3 If you look at Appendix B, there is a 4 requirement that, for example, the calculations, 5 drawings, and such -- and I'm paraphrasing that as 6 well -- but be done under a controlled environment and 7 be able to be verified and checked and that sort of 8 thing.
9 You're not concerned about that? Are you 10 concerned about that they don't know what they have?
11 MR. SHADIS: Yes. Your question has many 12 parts, and I -- and it's "yes" I think to all of them.
13 Basically, okay, QC -- QA/QC is an absolute in 14 determining the as-is condition of the plant prior to 15 uprate. And if you don't have an adequate program, if 16 that independence isn't preserved, then you cannot 17 have assurance that the plant is in conformance, that 18 the material condition of the plant is what it is 19 represented to be.
20 And the NRC cannot, you know, as an 21 auditor place reliance on the representations of the 22 company in that respect. And that is a major issue.
23 You may be aware, Dr. Baratta, that 24 literally thousands of Vermont residents, together 25 with our Congressional team, our State Senate, the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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382 House of Representatives, the Vermont State Nuclear 2 Advisory Panel, and the Department of Public Service, 3 the Vermont Public Service Board, requested various 4 forms of an independent engineering or independent 5 safety assessment.
6 The position of NRC at the beginning of 7 that process when we first requested that was that it 8 was unnecessary to do any extraordinary examination of 9 the plant, because NRC had confidence that its routine 10 inspection programs found the plant to be in good 11 order and, therefore, what -- the only thing we really 12 needed to look at was anything modified for extended 13 power uprate. We really didn't need to look at the 14 base plant. And I offer you that that premise was 15 badly placed, because we have a -- apparently a QA/QC 16 program that can't guarantee that.
17 And I -- again, you know, we have but few 18 documents. We have several examples -- for instance, 19 the outage this spring where a part of a cooling unit 20 broke loose and shorted out the system, and we had a 21 transformer fire, plus a second fire, in the turbine 22 hull as a result. And that was identified by the 23 company as a QC program.
24 Their actions during that refueling 25 outage, in putting off what was a scheduled inspection NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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383 1 and maintenance, is a :- we take it as a QA problem.
2 So, anyway, I'll stop trying to answer 3 that part of your question. Did I miss some part of 4 this?
5 JUDGE BARATTA: No, that's fine. Thank 6 you.
7 MR. SHADIS: Thank you.
8 JUDGE KARLIN: I had a question or two.
9 I found the April 15, 2004, Entergy memo that I think 10 is your Exhibit --
11 MR. SHADIS: Yes, sir.
12 JUDGE KARLIN: -- F, or one of your 13 exhibits. And I just fail to see where there's any 14 support for the proposition, or your concern I think 15 you hit pretty hard in your presentation, about 16 independence here. What information, what evidence, 17 what have you presented that supports your contention?
18 And I know you don't have to have the preponderance at 19 this point, but we do need to have something to 20 support that.
21 The memo, as I read it, says -- talks 22 about changes in the QA program, or some element of 23 it, at Entergy. And it goes on to say these changes 24 do not apply to Vermont Yankee. Therefore, there's --
25 they're not changing whatever the existing program --
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384 1 QA/QC-program is at Vermont Yankee.
2 And then, it goes on to say in a bullet --
3 that you point out in your briefing materials, "The 4 maintenance group is already performing peer 5 inspection." And I'm not exactly sure how much of the 6 QA/QC program that encompasses. They're already --
7 "The maintenance group is performing peer inspection 8 at Vermont Yankee."
9 Where do I glean from anything in that 10 document -- and you have no expert or anyone else, you 11 know, supporting this -- that there's an independence 12 problem? I have, you know, an org chart that tells me 13 that there's some reporting problems, that they don't 14 have sufficient integrity or independence. I'm just 15 not seeing it. I mean, so --
16 MR. SHADIS: Okay.
17 JUDGE KARLIN: -- help me there.
18 MR. SHADIS: A couple of points. Number 19 one, on the second page of that memorandum where you 20 selected, "The maintenance group is already performing 21 peer inspection" --
22 JUDGE KARLIN: Right.
23 MR. SHADIS: -- if you --
24 JUDGE KARLIN: Paragraph 8, the numbered 25 paragraph 8 in the --
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385 1 MR. SHADIS: Paragraph 8, exactly --
2 Vermont Yankee applicability. If you back up four 3 bullets, you know, there, you see there is no QC 4 group, no QC inspection group, to transition.
5 JUDGE KARLIN: To transition.
6 MR. SHADIS: There will be --
7 JUDGE KARLIN: So is your point that they 8 don't have a QC group, or that it's not independent?
9 I mean, all they're saying is there's nothing --
10 there's no QC group at Vermont Yankee to transition.
11 I'm not sure what that --
12 MR. SHADIS: Exactly.
13 JUDGE KARLIN: -- means. I'm not sure 14 what that means. Maybe they are someplace else.
15 Maybe they are -- I don't know, but --
16 MR. SHADIS: Well, I hope they're not 17 absent. But --
18 JUDGE KARLIN: But this is a memo that 19 says, "We're going to transition certain QC groups 20 within our corporate family, I guess, and at Vermont 21 Yankee there is no QC group to inspect -- to 22 transition." I see that, and I don't know whether 23 that -- I don't know what that means.
24 And certainly there is a requirement that 25 a QA program exist and be implemented at these NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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386 1 facilities. But I'm not sure where -- if there's a 2 support for the lack of independent -- maybe you're 3 saying there isn't one at all. I don't know.
4 MR. SHADIS: Well, what we take that to 5 mean, our reading of it as a plain reading of it, is 6 that Entergy is proposing in this memorandum to --
7 MR. WACHTER: Two minutes.
8 MR. SHADIS: -- to incorporate their QC 9 programs into the various departments, as opposed to 10 having a freestanding, independent QC program, and 11 have the various department members then perform QC 12 functions.
13 And what they are saying is when it comes 14 to transition at Vermont Yankee, it says here that it 15 is an outlier, and it says there is no QC inspection 16 group to transition. And I think it's very clear in 17 that sequence that Vermont Yankee has already 18 transitioned people out of a QC group and into the 19 various departments.
20 Finally, the QA -- the Quality Assurance 21 Manual, which is now called the Vermont Yankee Quality 22 Assurance Manual, was adopted last year. This 23 memorandum is dated this year, April. So from June, 24 or whatever it was, of last year to this year, this 25 transition is apparently not complete fleet-wide.
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387 1 There is no assurance here that we could 2 find on all the evidence that we could search that 3 Vermont Yankee has in place a fully-transitioned and 4 approved QC program or QA program.
5 Thank you.
6 JUDGE RUBENSTEIN: Mr. Shadis, is it your 7 contention that due to management reorganization and 8 the alignment of responsibilities within the 9 organization there is a gap in the coverage for QA/QC?
10 MR. SHADIS: There may be, but our 11 contention largely goes to the independence of QA/QC 12 as it's specified in Appendix B.
13 JUDGE RUBENSTEIN: And this has been with 14 the organization of the QA/QC group since inception of 15 the plant or for many years?
16 MR. SHADIS: Well, our assumption is that 17 the company was in compliance with the various orders 18 that came down on QA/QC in the early 1980s to put it 19 together, to get their reporting requirements 20 together, to have it independent. And somehow, 21 somewhere along the line -- and we can't find a record 22 of where the company transitioned out of that to 23 dismantle any freestanding QA/QC program, and assign 24 it to various members of the various departments, we 25 can't find that.
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388 1 JUDGE RUBENSTEIN: And you had some 2 specifics that you brought to the attention of the 3 NRC?
4 MR. SHADIS: Pardon me?
5 JUDGE RUBENSTEIN: Have there been 6 specific lapses that you brought to the attention of 7 the NRC?
8 MR. SHADIS: No, sir.
9 JUDGE RUBENSTEIN: And they have --
10 MR. SHADIS: I'm sorry. No time for that.
11 We -- this is something that I received in April, I 12 think it was.
13 JUDGE RUBENSTEIN: Is this the 14 anonymous --
15 MR. SHADIS: Pardon me?
16 JUDGE RUBENSTEIN: Is this the anonymous 17 information?
18 MR. SHADIS: Yes. Well, the anonymous 19 letter with this memorandum. The memorandum is dated 20 April 15th, and I received it I think on April 26th.
21 But I -- but, you know, it's a question of 22 interpreting it. Yes.
23 JUDGE RUBENSTEIN: Okay.
24 JUDGE KARLIN: Thank you. Thank you, Mr.
25 Shadis.
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389 1 JUDGE RUBENSTEIN: Thank you.
2 Entergy? Mr. Rosinski?
3 MR. ROSINSKI: Good morning.
4 JUDGE KARLIN: Good morning.
5 MR. ROSINSKI: I believe we have 6 identified the root of the problem here. There are no 7 records of NRC approval of changes to the Vermont 8 Yankee quality control and quality assurance program, 9 because there have been none. The quality control 10 function at Vermont Yankee has been, since inception 11 of the plant, distributed, independent inspectors 12 within the line organization.
13 There has been no QC group at Vermont 14 Yankee within their program since inception of the 15 plant. That appears to be the root of the misreading 16 here.
17 The memo that Judge Karlin described, 18 which is the sole basis submitted by the Coalition, 19 describes that pretty well. Vermont Yankee is not 20 participating in the proposed transition, because they 21 are the model for the transition essentially, that 22 independent inspection, which is controlled by 23 approved procedure at Vermont Yankee, is the general 24 direction that Entergy corporate is looking at 25 implementing at other plants. Therefore --
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390 1 JUDGE KARLIN: Well, let me'ask you there, 2 I mean, you sound like you're making the Coalition's 3 case. The quality assurance/quality control function 4 at the plant is distributed among line functions?
5 MR. ROSINSKI: In line organizations.
6 JUDGE KARLIN: In the line organizations?
7 MR. ROSINSKI: QC independent inspection 8 is the requirement in --
9 JUDGE KARLIN: Right.
10 MR. ROSINSKI: -- in the regulations.
11 JUDGE KARLIN: How can the line 12 organizations be independent?
13 MR. ROSINSKI: They have trained 14 inspectors, independent of the work that is being 15 inspected, which is what the requirement --
16 JUDGE RUBENSTEIN: I think the thrust of 17 the question is, they report to a QA/QC manager as 18 opposed to a line manager?
19 MR. ROSINSKI: When performing this 20 function, they are independent of their line 21 organization and report through the QA program, which 22 is independent of the line organization management 23 performing the work.
24 JUDGE KARLIN: Okay.
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391 1 performing this-function," do they -- do they report 2 dually to a line manager and/or to a QC manager?
3 MR. ROSINSKI: No. It is my understanding 4 when the inspectors are assigned for this work -- the 5 function lies in an independent organization as 6 required by NRC regulations. The NRC regulations in 7 the appropriate -- as you pointed out, in Appendix B, 8 requires an independent inspection of the activities, 9 the certain activities. That's what has been 10 performed at Vermont Yankee since the inception of the 11 plant.
12 It is the organization chart that we're 13 discussing. There is no group, there is no box of 14 people on the chart. That is the group. The function 15 has been reviewed for the entire history of the plant 16 and found to be acceptable.
17 JUDGE KARLIN: Well --
18 JUDGE BARATTA: Can I --
19 JUDGE KARLIN: Go ahead.
20 JUDGE BARATTA: Who does the evaluation of 21 these people for pay raises and such?
22 MR. ROSINSKI: The line organization.
23 JUDGE BARATTA: Line organization, not the 24 -- does the QA/QC manager have any input to that 25 process?
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392 1 MR. ROSINSKI: Yes, he has.
2 JUDGE BARATTA: Is it advisory, or is it 3 definitive?
4 MR. ROSINSKI: As an advisory function.
5 JUDGE BARATTA: Okay. Thank you.
6 JUDGE KARLIN: And on that similar point, 7 is the -- I presume there's a QA/QC manager, quality 8 assurance manager there?
9 MR. ROSINSKI: That is correct.
10 JUDGE KARLIN: Does this person have 11 another role, or that is his or her sole 12 responsibility?
13 MR. ROSINSKI: It's the sole 14 responsibility. The Q -- the quality assurance 15 manager has an independent --
16 JUDGE KARLIN: And who does that person 17 report to?
18 MR. ROSINSKI: It's an off-site reporting 19 in -- to the -- in this case White Plains, a corporate 20 function. He's not reporting to the plant manager.
21 JUDGE KARLIN: So he reports outside of 22 the line management structure?
23 MR. ROSINSKI: Yes.
24 JUDGE KARLIN: He reports to a corporate 25 QA person?
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393 1 MR. ROSINSKI: Director of Oversight, 2 which is an independent corporate position.
3 MR. BLOCK: Mr. Chairman?
4 JUDGE KARLIN: Yes.
5 MR. BLOCK: We would like -- I'm sorry to 6 interrupt the flow. We want to place an objection on 7 the record to this questioning of the attorney as if 8 he were a witness under oath.
9 JUDGE KARLIN: Yes.
10 MR. BLOCK: And I realize the problem that 11 you're confronted with, but it's the same one we were 12 confronted with. And at hearing, we'd like an 13 opportunity to get discovery and to pursue this 14 properly and obtain witnesses who could really provide 15 that evidence under oath to you, which I think is the 16 proper way to do it.
17 The fact that you have a tendency to hear 18 -- to want to ask those questions, I think 19 demonstrates the fact that there is a live issue.
20 And, you know, if there's a dispute it shouldn't be 21 resolved by having the unsworn testimony of an 22 attorney.
23 Thank you.
24 JUDGE KARLIN: I think that's a reasonable 25 point. We're trying to make your case, actually, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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394 1 because there was a question of independence here.
2 And I thought it would be helpful from what they said 3 to help us understand that a little bit better. But 4 I don't think we have -- do we have any more questions 5 along that line?
6 JUDGE RUBENSTEIN: No.
7 JUDGE KARLIN: Okay.
8 MR. BLOCK: We realize that, and we 9 sympathize with the problem. We thank you.
10 JUDGE KARLIN: All right.
11 MR. BLOCK: But, like I say, you know --
12 JUDGE KARLIN: We just get curious about 13 these things, too.
14 MR. BLOCK: Sure. Thank you.
15 JUDGE KARLIN: All right.
16 MR. ROSINSKI: I think one issue here is 17 -- let's look at what the contention actually 18 challenged. We've had a wide-ranging discussion of 19 the philosophy of quality assurance and quality 20 control here. But, really, let's look at what the 21 contention before this Panel really says.
22 It says two things -- that Vermont Yankee 23 has undertaken to reduce its quality assurance and 24 quality control program in violation of 50.54, and it 25 says VY is eliminating, or has eliminated, independent NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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395 1 quality control inspection functions. All right?
2 It does -- it is not just wide-ranging.
3 We have issues with the particular -- you know, wide, 4 broad independence issues. It is clear that the root 5 of this contention is perceived uneasiness with 6 corporate changes to the quality assurance programs 7 outside of Vermont Yankee. That is not within the 8 scope of this proceeding.
9 I haven't heard anything that ties any of 10 these challenges, even in the broader scope, to the 11 application, to EPU at Vermont Yankee. They haven't 12 challenged the quality of any specific item in any of 13 the submittals on the docket in this case.
14 The entire contention rests on the 15 Coalition's misreading of the memo that Judge Karlin 16 identified. It's clear that there is no action being 17 proposed for Vermont Yankee. So whatever issues that 18 the Coalition has raised exist today if they exist at 19 all. And we don't believe they exist, so there is no 20 need to go down the road of the program structure or 21 whether it -- the questions that we were asking and 22 answering.
23 And the Coalition also incorrectly 24 connects, as they have here, the discussion in the 25 April 2004 memo with the 2003 changes to the Vermont NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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396 1 Yankee quality assurance program, following the sale 2 of the plant to Entergy.
3 I want to be clear: the 2003 changes did 4 two simple things. They referred VY users of the 5 program to the NRC-approved Entergy Quality Assurance 6 Program Manual. Entergy now owns the plant. That is 7 appropriate. And remove duplicative and superseded 8 contents from the VY program manual.
9 The changes were for administrative 10 alignment of the program only. There were no 11 substantive changes to any of the functions. And 12 there were certainly no changes to the quality control 13 or independent inspection function. And, again, that 14 program that -- the Entergy program that was referred 15 to has been reviewed and approved by the NRC.
16 I want to be absolutely clear. Neither 17 the 2003 changes or the 2004 memo made any changes to 18 the quality control function at Vermont Yankee. And, 19 more importantly, there is no basis in the contention, 20 as submitted, for any of these other broad challenges 21 and concerns from anonymous letters and the rest of 22 that.
23 There are other ways to raise that, as 24 were intimated here. You can file a 2.206. They can 25 file assertions or allegations with the. Commission.
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397 1 This is a broad challenge to, admittedly, an important 2 program, but this contention is not.
3 The Coalition's misreading of the sole 4 document that they submitted in support of this 5 relatively narrow, although incorrect, narrow 6 contention does not support it. Their misreading of 7 the document cannot form the basis of a contention 8 within this hearing structure.
9 I'd be happy to answer any further 10 questions.
11 JUDGE KARLIN: All right. Thank you.
12 Questions? Okay. Thank you.
13 Ms. Poole, Staff?
14 MS. POOLE: Thank you. Staff has nothing 15 to add to its papers, although we'd be pleased to 16 answer Board questions.
17 JUDGE KARLIN: All right. Any questions 18 of Staff?
19 I don't think you reserved any time. It 20 ended up going all the way through. So we will not be 21 able to entertain anything at this point.
22 MR. SHADIS: May I have one minute?
23 JUDGE KARLIN: You need to reserve time 24 for rebuttal. I think it's a good strategy to do a 25 better time on that. So --
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398 1 MR. SHADIS: Thank you.
2 JUDGE KARLIN: -- maybe -- okay. So I 3 think we'll move on to the next contention, NEC 4 contention number 2. I would suggest you reserve some 5 time for rebuttal, because there's always something 6 you want to say at the end. It's an advantage that 7 the Petitioner has, because they have the burden on 8 these sort of things, as you know.
9 MR. BLOCK: We'd like to just reserve two 10 minutes.
11 JUDGE KARLIN: All right.
12 MR. BLOCK: Get the two-minute warning.
13 JUDGE KARLIN: Okay. Good.
14 MR. BLOCK: But if the Board is inclined 15 to pursue questions, we feel that's more important 16 than -- at that point that the time is up, I'll make 17 a decision whether to waive part of the rebuttal in 18 order to continue.
19 JUDGE KARLIN: All right.
20 MR. BLOCK: In this contention concerning 21 the reliability under extended power uprate conditions 22 of the main steam isolation valves, we have a 23 contention where the issue of fact that we've raised 24 or controverted per 10 CFR 2.309 is the mechanical 25 performance and reliability of the main steam NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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399 1 isolation valve under extended power uprate 2 conditions.
3 Our contention draws a line of distinction 4 between the adverse trend that's noted in one of the 5 documents that Mr. Gundersen declares upon that -- for 6 Entergy identified, and the potential for increased 7 damage and leakage under uprate conditions.
8 We're concerned, and we contend that the 9 main steam isolation valves will not withstand EPU 10 conditions, and, most significantly, that EPU accident 11 conditions, when there are large leaks beyond -- will 12 allow for an accident beyond alternative source term 13 bounds, under those kinds of conditions that the EPU 14 will aggravate. And so these valves will be under 15 greater pressure.
16 And, additionally, Mr. Gundersen made a 17 point about the leakage having an adverse effect on 18 the maintenance of adequate pressure -- that is, the 19 net positive suction head issue.
20 And if the Board has some questions about 21 the contention, I'd be pleased to try to answer them, 22 although fortunately I am not, and have never been, a 23 reactor operator, fortunately for the industry. And 24 all of us, right.
25 JUDGE KARLIN: Questions?
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400 1 JUDGE BARATTA: Yes. I think we heard 2 yesterday that the valves are actually tested in 3 reverse direction, and then the results are then 4 interpolated to determine what the leakage rate would 5 be in the forward direction during an accident. I 6 think that was more or less a summary of what we 7 heard. Would you care to comment on that?
8 MR. BLOCK: Just a moment. May I confer 9 with Mr. Shadis for a moment?
10 JUDGE KARLIN: Sure. Sure, yes.
11 (Pause.)
12 MR. BLOCK: Our position on that is that 13 they would like to do the testing for flow in only one 14 direction under the thesis that that's the primary 15 flow direction. However, under accident conditions, 16 it would be different. So the kind of testing that 17 they want to do we believe is less conservative than 18 would take place under actual conditions.
19 And since we're dealing with an increase 20 in pressure, it would be better to make these tests 21 under real conditions, but that's another contention.
22 JUDGE RUBENSTEIN: Do you have any --
23 MR. BLOCK: Excuse me.
24 (Pause.)
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401 1 that I misspoke, that it's a question of the margin 2 that's built into the testing regimen, and they're 3 advocating for one that's less conservative without 4 any kind of rationale for doing that.
5 JUDGE RUBENSTEIN: Let me try to see your 6 basis. Have you examined all the containment 7 integrity tests that -- are you aware of all the 8 containment integrity tests that the NRC requires --
9 containment overpressure, MSIV operation?
10 MR. BLOCK: Excuse me a moment.
11 (Pause.)
12 I can't say that we're aware of all of 13 them. We're aware of many of them, and the standards 14 for sealing the MSIV are within the tech specs --
15 found in the tech specs for this plant.
16 JUDGE RUBENSTEIN: Tech specs --
17 MR. BLOCK: And I believe our expert was 18 aware of those when he did this. He's somebody with 19 extensive experience in the industry, as you can see, 20 looking at Mr. Gundersen's supporting curriculum 21 vitae.
22 JUDGE RUBENSTEIN: Do the MSIV leakage 23 rates exceed the tech spec leakage rates, in totality?
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402 1 pointed out.
2 JUDGE RUBENSTEIN: I'm searching for your 3 basis, other than a trend in some of the testing. Can 4 you help me with that? You're not saying you're not 5 in conformance with the regulations, but you're saying 6 there's a trend in the leakage rates.
7 And I guess also I'm a little concerned 8 with -- not concerned, trying to understand what you 9 expect -- in fact, what relief would you look for? Do 10 you look for valve replacement? Do you look for more 11 testing? And, you know, I don't particularly hear a 12 basis yet.
13 (Pause.)
14 MR. BLOCK: Okay. I'm sorry to hold you 15 up. This is more difficult for me, because I've only 16 recently come into contact with the technical 17 information. If I understand this correctly, the 18 point that Mr. Gundersen makes, and that we rely upon 19 in our basis, is he examined this trend in testing 20 where there's a clear increase in the negative results 21 that they're getting.
22 One, you know, gets worse and worse with 23 each test, and he's saying that from his point of view 24 this is an issue of aging, but that Entergy looks at 25 it and says, "Oh. Well, it's a suboptimal design of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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403 1 these valves."
2 And so it's a question of looking at this, 3 and in his professional judgment saying that under EPU 4 conditions there is going to be an accelerated curve 5 of aging, there is going to be more corrosion of the 6 valves, you're going to have wetter steam hitting 7 these valves, and that as a result there is going to 8 be more degradation than they are analyzing that there 9 will be.
10 And so I guess to try to answer the second 11 question, what kind of relief there would be is for 12 there to be a more conservative rather than less 13 conservative approach to the problem, and that there 14 be a proper analysis done that takes into account the 15 factors that Mr. Gundersen was raising about how the 16 EPU conditions will put greater strain on these valves 17 than exists under the current conditions.
18 JUDGE RUBENSTEIN: Many components in 19 complex systems age and wear, and the purpose of a 20 good inspection program is to assure that they don't 21 fail to meet the requirements of the NRC regulations.
22 So one can hypothesize where, but one has to -- to now 23 relate this to the inspection program that is ongoing, 24 the replacement program, the maintenance program. And 25 if you have a specific concern in this area where NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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404 1 you've seen a failure, I think it would be a good 2 opportunity to voice it.
3 MR. BLOCK: Okay. Mr. Shadis points out 4 to me that what you're saying is correct, but not if 5 there's bad root cause analysis here, and that's the 6 problem. So we see that as a primary problem with the 7 application process and what's going on.
8 As far as the inspection goes, I think 9 that it depends on whether the inspection is being 10 made and when it's being made as to what it's going to 11 turn up. And, you know, we have a different kind of 12 inspection program now. So it's not clear to me that 13 this is something that's going to be under constant 14 scrutiny.
15 And then, you mentioned the quality 16 control aspect, and, you know, we've just moved from 17 the previous contention. And if they are having QA/QC 18 problems, then I guess all of these things would work 19 together to compound one another and lead to a result 20 that I don't think this agency would like to have in 21 a plant that's going to be given the -- you know, 22 potentially the green light to go ahead and make this 23 kind of an uprate, and have much higher pressure 24 conditions and much heavier stresses on all of the 25 components.
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405 1 JUDGE RUBENSTEIN: VWell, I just want to 2 tie it off. So your contention is they haven't I ( .::
3 identified the root cause of the steam valve/isolation 4 valve segregation leakage? But leakage is a normal 5 occurrence in most valves to a certain degree, and one 6 looks to control this leakage, has systems to examine 7 it, to assess when it becomes excessive. So why don't 8 we leave it at that?
9 JUDGE KARLIN: I have a question, if I 10 may, unless you want to respond to that.
11 MR. BLOCK: Yes, I do.
12 JUDGE KARLIN: Okay.
13 MR. BLOCK: It's that they haven't 14 identified, according to Mr. Gundersen, they haven't 15 made a proper identification of the reason for these 16 failures. They're shifting that reason to another 17 cause that he believes is incorrect. That's a core of 18 dispute, which I mentioned at the beginning of my 19 comments, and we see that as the problem.
20 JUDGE RUBENSTEIN: It's assertive -- and 21 I'm looking for some sort of a -- with him -- with 22 being a recognized professional for some evidence --
23 pardon me, that's a bad word -- for some sort of a 24 basis for this assertion.
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406 1 the document.
2 JUDGE RUBENSTEIN: Thank you.
3 JUDGE KARLIN: A question. I think, 4 having read the briefs, what we'll hear in part from 5 Entergy is that, look, this should have been raised a 6 year ago I guess. They identified a negative trend in 7 their valve leakage. They applied for an amendment to 8 their license last year, I guess in July of '03, to 9 change the testing method to make it in -- what I 10 think you would say is more lenient or somehow less 11 problematic.
12 And there was a notice of opportunity for 13 hearing at that time, if anyone wanted to gripe or 14 object about change to the testing at that time. Now 15 we're going to hear that -- that said that, and I 16 think that's a valid concern here. I mean, you did 17 not raise anything at the time about the problem --
18 the proposed change in their testing protocol.
19 But I -- if I understand what you're 20 saying, it's sort of like the car analogy of 55 mile 21 an hour, 75 mile an hour, that, well, we're not going 22 to object to some modest change if you're going to 23 still go at 55 miles an hour.
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407 1 delta there that we are concerned. And you're raising 2 for that basis -- is that essentially your contention?
3 MR. BLOCK: I would tend to agree with 4 your analysis. Mr. Shadis finds something. He's not 5 explaining exactly what. But our point here is that 6 that other proceeding was about alternative source 7 term, not about EPU. This is about EPU. This applies 8 to EPU. It's being brought up in that context. We're 9 not raising it as an AST issue.
10 And, you know, if the net effect was the 11 segmentation of the application process, by taking 12 care of the alternative source term in that 13 proceeding, and taking care of other issues here, this 14 is an issue here that is an effect that is going to be 15 exacerbated by these conditions. And that's where you 16 and I would agree to go back to the car analogy, and 17 I'm not sure --
18 JUDGE KARLIN: Well, I'm not sure I'd 19 agree. But I think it's a good one, and I think --
20 MR. BLOCK: Yes.
21 JUDGE KARLIN: -- we ought to attribute it 22 to Mr. Roisman. But thank you.
23 I don't have anything further.
24 MR. BLOCK: Thank you.
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408 1 whatever remaining time that they had for rebuttal.
2 Okay.
3 Entergy, Mr. Diaz?
4 MR. TRAVIESO-DIAZ: Mr. Chairman, members 5 of the Board, good morning.
6 JUDGE KARLIN: Good morning.
7 MR. TRAVIESO-DIAZ: I want to start by 8 reading you the contention, so it will bring us back 9 to --
10 JUDGE KARLIN: Would you speak closer to 11 the microphone?
12 MR. TRAVIESO-DIAZ: Yes. The contention 13 says, "The license amendment should not be approved at 14 this time because Entergy has failed to address the 15 root cause of MSIV leakage, but instead proposes to 16 shift the problem downstream to -- higher allowable 17 leakage in the condenser. Entergy's failure to pursue 18 the root cause of a negative component performance 19 trend -- that could ultimately give failure of the 20 MSIV safety function."
21 Now, they're saying in this contention 22 that Entergy -- the main gist of the contention is 23 that Energy has failed to pursue the root cause for 24 the MSIV leakage. Interestingly, the first paragraph 25 of the declaration that supports this contention uses NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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409 1 and refers to one and only document. The root cause 2 analysis, 31 pages long, performed by Entergy that --
3 JUDGE KARLIN: Well, I see in your 4 pleadings I think you referred to an 81-page document.
5 Did you attach it as an exhibit?
6 MR. TRAVIESO-DIAZ: They attached it.
7 These are exhibits.
8 JUDGE KARLIN: Is it their exhibit? Okay.
9 I'm sorry.
10 MR. TRAVIESO-DIAZ: Yes. So 11 JUDGE KARLIN: Whose exhibit is it? Did 12 you all have that 81-page exhibit attached --
13 MR. TRAVIESO-DIAZ: 31. Let's not make it 14 too long.
15 JUDGE KARLIN: Where can I find that 16 document? I'm sorry. What is -- I'm confused. In 17 the pleadings?
18 MR. TRAVIESO-DIAZ: Yes.
19 JUDGE KARLIN: Attached to whose --
20 MR. TRAVIESO-DIAZ: Their pleadings.
21 JUDGE KARLIN: Whose pleading is it 22 attached to as an exhibit?
23 MR. TRAVIESO-DIAZ: I believe it's 24 attached to the declaration of Mr. Gundersen.
25 JUDGE KARLIN: Mr. Gundersen?
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410 1 MR. TRAVIESO-DIAZ: Yes.
2 JUDGE KARLIN: Okay. I'm sorry.
3 MR. TRAVIESO-DIAZ: If I -- may I 4 continue?
5 JUDGE KARLIN: Yes, please. I'm sorry.
6 MR. TRAVIESO-DIAZ: My first point is that 7 the contention effectively claims that something 8 hasn't been done, and they cite the very document that 9 states exhaustively what they claim should be done.
10 Second point is that if it's -- there is 11 no dispute, I don't think, that --
12 JUDGE KARLIN: Where is that cite? Can 13 you help me with that cite?
14 MR. TRAVIESO-DIAZ: Oh, yes. It is Mr.
15 Gundersen's declaration. It's on page -- let's see, 16 it's on the second page of the declaration, and on the 17 second paragraph. "In anticipation of extended power 18 uprate, and in response to conditions reported" --
19 JUDGE KARLIN: Wait a second. I'm still 20 -- I'm on the wrong attachment. Okay. Second page, 21 second paragraph?
22 MR. TRAVIESO-DIAZ: Yes. The paragraph 23 that's says, "In anticipation."
24 JUDGE KARLIN: Right.
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411 1 this document. This document indeed contains --
2 JUDGE KARLIN: Okay.
KO.
3 MR. TRAVIESO-DIAZ: -- an exhaustive root 4 cause analysis. So I think the contention is wrong on 5 its face. But it's more significant than that. I 6 don't think there is any dispute that the MSIV issue 7 is not part of this EPU application. The EPU 8 application doesn't purport to make any change on the 9 operation of the MSIVs on their acceptance criteria, 10 on the leakage data, the test methodology, or the 11 amount of leakage that's acceptable. None of that is 12 changed.
13 It's if -- it's subject to the EPU 14 application, so we are talking about something that is 15 not part of this proceeding, because whatever else the 16 EPU application does it does not change any part of 17 this MSIV testing and assessment of test results or 18 acceptance criteria.
19 JUDGE KARLIN: Well, let me ask on that.
20 Is this the 55 mile an hour/75 mile an hour issue?
21 You've got a car. You don't change anything in the 22 car, but suddenly you change its speed and you 23 increase it by 20 percent, or whatever. Are you not 24 pushing some of the systems -- the preexisting systems 25 that might have been acceptable as 55 that might be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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412 1 acceptable at 75?
2 And the question then becomes: is this 3 such a system that would be challenged more at an 4 uprate condition? And see if you can help me with 5 what nexus we should use, I mean, to evaluate whether 6 a preexisting system could legitimately be the subject 7 of a contention here.
8 MR. TRAVIESO-DIAZ: Well, that subject is 9 addressed in the application. Even though not -- not 10 the way you put it, but it -- the application says in 11 its analysis, and I'll give you the citation -- NEC 12 3309-OP, Draft Revision B2, 9/5/2003. It says an 13 increase in flow rate --
14 JUDGE KARLIN: What is that? That's in 15 the application?
16 MR. TRAVIESO-DIAZ: That's in the 17 application, yes.
18 JUDGE KARLIN: All right.
19 MR. TRAVIESO-DIAZ: This is part of the 20 PUSAR. The application says an increase in flow rate, 21 which is what you're going to see in the event that 22 the rate is granted, and what the MSIV valve is going 23 to see, an increase in flow rate assists MSIV closure.
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413 1 makes it run more effective.
2 So with respect to the ability to close 3 the MSIVs in the event of an accident, having a 4 greater flow rate helps. That's what this document 5 says.
6 MR. SHADIS: Excuse me, Mr. Chairman.
7 Could you please ask counsel for Entergy to slow down 8 his speech somewhat? I'm really having a very 9 difficult time understanding what he's saying.
10 MR. TRAVIESO-DIAZ: I apologize. I tend 11 to get carried away sometimes.
12 JUDGE KARLIN: Thank you.
13 MR. TRAVIESO-DIAZ: Okay. So my second, 14 and I think fundamental, point -- without even going 15 into the facts, which we will -- is that this 16 contention does not challenge the application. And, 17 therefore, it's out of scope.
18 The third point, and that's where counsel 19 for NEC claims there is a factual dispute, is that --
20 well, let me just give you another preliminary point.
21 As you predicted that I would say, they had an 22 opportunity to challenge this proposed change when it 23 was proposed. And I want to correct the record.
24 First, the application to increase the 25 allowable leakage rate was entered before not only the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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414 1 EPU proceeding was instituted, but even before they 2 realized there was a problem. So there is no basis 3 for claiming that there is a regulation or that we are 4 doing this in installments.
5 So I -- putting that aside, there was a 6 proceeding over a year ago in which for other reasons 7 there was an application to increase the leakage 8 space, and that was not contested. It could have 9 been, but it wasn't.
10 On the facts, there are many things we can 11 say about the facts, but we are -- I want basically to 12 tell you that where they claim that there is a dispute 13 of fact -- issues of fact that require elucidation of 14 the hearing, the dispute on the case consists of a 15 declaration by their expert witness that provides no 16 facts in support, and bases its arguments in what 17 yesterday was described as cherrypicking, statements 18 in this root cause analysis.
19 But this is actually particularly not just 20 found with cherrypicking, because it takes -- it takes 21 one sentence, and sometimes in the context of that 22 same sentence there is also a contradiction, and it 23 doesn't address it.
24 Now, this is not a question of weighing 25 the evidence. I think the case law shows that when NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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415 1 you are relying on a document for a particular 2 statement, you have an obligation to address any part 3 of the document that is contrary to your position.
4 JUDGE KARLIN: Ironclad obligation.
5 MR. TRAVIESO-DIAZ: Well, I don't -- I 6 don't want to --
7 JUDGE KARLIN: Well, they have an ironclad 8 obligation.
9 MR. TRAVIESO-DIAZ: Yes. Well, I mean, I 10 can give you cases that call it that, but, I mean, it 11 stands to common sense.
12 JUDGE KARLIN: Okay.
13 MR. TRAVIESO-DIAZ: The best example of 14 that that I'm talking about is that they claim that 15 these MSIV -- the excessive leak rates are the result 16 of aging. Now, there is a several-paragraph 17 discussion on page 27 of this document that says, "We 18 thought about that could be aging, and we examined the 19 issue, looked at it, and determined that it could not 20 really be because valves of all kinds of ages are 21 failing."
22 Moreover, these valves are -- when they 23 are looking at the outage, they are -- like you do 24 when you overhaul the engine of a plane, you take them 25 out, you clean them, you inspect them, you correct any NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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416 1 deficiencies they may have, you put it back as new.
2 So aging has nothing to do with it.
3 Now, it may very well be that the expert 4 could disagree with this, but he had an obligation to 5 say -- an ironclad obligation, if there was something 6 in the document that he referred to that contradicted 7 what he said, he had an obligation to address it. He 8 didn't have to agree with it. He would have to deal 9 with it.
10 If this is the sentence -- that 11 declaration looked at several places, and that's the 12 most significant on because it goes to the root cause.
13 In fact, the root cause analysis, which is not 14 contested as such in the declarations -- and I think 15 it's four causes, potential causes to this existing 16 leak.
17 One is very simple; they changed the test 18 methodology. Before 1996, they were testing the 19 valves such that they were testing the relational flow 20 that you see in an accident. After 1996, they took 21 one of the valves, observing flow and during the --
22 the flow in the direction of the accident. That, I am 23 told, increases the possibility that you are going to 24 get a leakage rating which you may be experiencing.
25 JUDGE KARLIN: A what?
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417 1 MR. TRAVIESO-DIAZ: A leakage rating that 2 may be not consistent with what you would see in an 3 accident.
4 In fact, the statistics show that before 5 they changed the test records, between 1973 and 1996, 6 they have only four situations in which the leakage 7 rate was exceeded. And in every case they were able 8 to trace it to some mechanical problem.
9 Since 1996, they have had 10 instances, 10 and that's why they came up with the trend. Now they 11 came up with four explanations as to why this is 12 happening -- maintenance, the acceptance criteria are 13 being unreasonably restrictive, test methods, and the 14 design of the valves. None of these things is being 15 contested as such in the declaration that was filed.
16 They didn't say why that is not a good potential 17 explanation.
18 The point I'm trying to make -- and I 19 really don't want to belabor it -- is, sure, your 20 expert proved the initial fact, but he has to have in 21 something -- one basis that he's using, the document 22 that he's using, as his evidence; contradict what he's 23 saying. He has the obligation to explain the 24 contradiction.
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418 1 things that can be said on this, but I think -- oh, 2 well, let me tell you one more thing that you ought to 3 know to put this in perspective. They increased -- by 4 the way, there is no -- as far as I know, there is no 5 proposal to change the test method.
6 The proposal that is in the proceeding, 7 not the EPU, is to change the acceptance criteria.
8 Before the application was filed in this other 9 proceeding, the acceptable leakage rate was 31 10 standard cubic feet per hour. It increases it to 62.
11 Now, the BWR Owners Group technical report 12 has been accepted by the NRC, which is cited in this 13 document. That says that leakage up to 200 are 14 acceptable, don't present a problem. So they 15 increased an acceptable leakage rate. It's not non-16 conservative. It is way within what the Owners Group 17 says is okay.
18 JUDGE KARLIN: Okay. Thank you. Any 19 questions? No. All right.
20 Ms. Poole?
21 MS. POOLE: Here again, the Staff doesn't 22 have anything to add to its papers, although we'd be 23 happy to answer questions.
24 JUDGE KARLIN: All right.
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419 1 technical closure on the leakage rate, which I didn't 2 ask them, but I'll ask you. You have a project 3 manager there.. Was there inspections on these items 4 by Region I? And any opinion issues, or any 5 violations?
6 MS. POOLE: This issue was considered 7 during the last outage, which was this spring. This 8 spring there was an outage. Overall leak rate was 9 within tech spec limits.
10 JUDGE RUBENSTEIN: Thank you.
11 JUDGE KARLIN: Anything? No further 12 questions from the Board at this point. Thank you.
13 MS. POOLE: Thank you.
14 JUDGE KARLIN: Mr. Block, do --
15 MR. BLOCK: Yes, I believe we have --
16 JUDGE KARLIN: Five minutes.
17 MR. BLOCK: Okay. Working backwards with 18 the points made by the Applicant's attorney, I believe 19 that the very same page of the affidavit that he 20 refers to -- the declaration by Mr. Gundersen -- makes 21 it clear, particularly at the bottom of the page, he 22 disagrees with the diagnosis that they're making.
23 He says that in his professional opinion 24 that the reason for this isn't that there is a design 25 less or -- less optimal design in these valves, but NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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420 1 that there -- that the increasing rate of failure is 2 due to aging and corroding.
3 And one of the points that he's making 4 here is that their response is, "Well, we made our 5 testing more conservative, and so now we're having all 6 these -- all these failures are coming up." And he 7 said there's a completely adequate and disputed 8 explanation for that, and that is the age-related 9 aspect.
10 It is clear -- I mean, we know from 11 physical events that have taken place, you know, 12 particularly the explosion at the facility in Japan 13 where one of these pipes broke, that aging does not 14 always follow a smooth curve. And so that this is a 15 legitimate concern.
16 We provided the document that was relied 17 upon, and Mr. Gundersen, if one looks carefully at the 18 declaration, he referenced this in a reasonable way.
19 And so we would rely upon the way in which he used 20 that document, and ask the Board to take a look at the 21 underlying document and compare the use that he made 22 of it with the allegation that it's an improper use.
23 And certainly, if -- if you disagree with 24 us, that's, you know, your right, and --
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421 1 me. On the issue of aging per se, I thought I heard 2 the Licensee say that if it degrades, they take the 3 valve out and refurbish it. So -- and I assume they 4 refurbish it to original standards. So say a little 5 more about why you think he's questioning aging.
6 Maybe he's not aware that they complete refurbish the 7 valves.
8 MR. BLOCK: The failures have been 9 occurring. If you look at the data that's provided in 10 the report, and that he references, these failures 11 have been occurring from outage to outage to outage.
12 And they may be refurbishing them when they find the 13 problem, but what's going to happen when it occurs in 14 between those and they're in conditions where there's 15 much more pressure on these systems to perform 16 properly than there is now? That's really the issue 17 that we're concerned with.
18 They may be able to make those 19 refurbishments in the in-between time, but, 20 unfortunately, reality often has a way of not having 21 those breakdowns and accidents occur at the time when 22 we're ready to provide service. They often occur when 23 we're out on the road with that car, and the tire 24 suddenly blows.
25 JUDGE RUBENSTEIN: Thank you.
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422 1 JUDGE KARLIN: Anything else?
2 MR. BLOCK: Thank you. That's sufficient.
3 JUDGE KARLIN: Thank you. That was 4 helpful.
5 Okay. We will now turn to -- let me 6 confer with my brethren here. All right. I think 7 we're going to try to go with another contention right 8 now. We've gone pretty efficiently, so we'll move to 9 contention number 3, large transient testing, I guess, 10 by the Coalition.
11 MR. BLOCK: One minute.
12 JUDGE KARLIN: Sure.
13 (Pause.)
14 MR. SHADIS: I think we're ready.
15 JUDGE KARLIN: Oh, okay. Yes, Mr. Shadis.
16 MR. SHADIS: This contention points out in 17 the statement of fact that Entergy has declined to do 18 large transient testing. This would be the testing 19 typical of the licensing of any new reactors.
20 Certainly, classically, large transient testing was 21 done when reactors are licensed.
22 We'd like to pick up on the point that Mr.
23 Roisman made yesterday in that this whole application 24 can be viewed as new construction. If you try to find 25 a definition of a reactor, one of the definitions NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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423 1 you'll come up with is that it is the fuel and 2 attending apparatus arranged in such a way as to 3 sustain a reaction.
4 And what we have here is a proposal to 5 plug in approximately a 100-megawatt electric reactor.
6 That's the equivalent of the modular design pebble bed 7 reactors. It's not out of scope to say that this is 8 a reactor's work of construction or addition or 9 additional thermal power being plugged into an old 10 unit.
11 But in terms of evaluating the risk, it is 12 no different, and perhaps even a greater risk of 13 plugging in this much additional thermal power to a 14 system that has suffered aging, that was built 15 according to 1960s standards -- although we can't, as 16 we said, find those standards, but we're sure that it 17 was.
18 And so, you know, from our point of view, 19 what we are saying here is that nothing less than 20 large transient testing should be done. We place no 21 confidence in the modeling -- computer modeling and 22 programs that try to assimilate the stress of large 23 transient testing, and we certainly don't want a large 24 transient test on the night shift sometime when nobody 25 is ready for it. We don't want the plant to --
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424 1 machine' itself to initiate its own large transient 2 test at some point.
3 So, you know, that's the -- that's the 4 underlying thesis, if you will, of our concern. I 5 think that -- and that addresses the question of the 6 fact. And Mr. Gundersen, in his declaration, does --
7 and I'll highlight portions of documents that address 8 the concerns that I've just enumerated.
9 JUDGE KARLIN: May I ask, is the --
10 there's a justification for exception to large 11 transient testing. I'm sure Entergy will hopefully 12 answer this as well. But they -- in any case, they 13 planned to do this. Is this an application to the 14 NRC, or something they can do unilaterally, and it's 15 just a fait accompli? As I understand it, it's some 16 sort of application to the NRC to make such a change.
17 MR. SHADIS: That's my understanding of it 18 also. And I should mention here, you know, that in 19 reviewing some Entergy internal documents, 20 communications, with NRC, NRC internal communications, 21 we find that early last year they were talking about 22 the Arts Mella Application, which is the fuel 23 parameters application, the AST application, and the 24 EPU application, and pondering amongst themselves as 25 to whether or not these should all go in as one NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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425 1 application or if they could be fed in separately, 2 serially, or in parallel.
3 And I have to say that we've also reviewed 4 Entergy documents with respect to tech spec changes, 5 to exemptions that have been filed over the last two 6 years, and there is a mountain of them. There's a 7 plethora of these things -- all of them adjusting, in 8 various ways, parameters for operating the plant that 9 apply to EPU. They're all getting ready for EPU.
10 We're an intervenor on a parking lot 11 expansion because of EPU. And, you know, in fact --
12 in fact, what the company has is a very ambitious 13 program to establish this plant at 120 percent of 14 power and --
15 JUDGE KARLIN: Well, let me ask on that --
16 I mean, is there -- I mean, any major plant probably 17 -- in a major regulatory oversight, probably there are 18 changes that occur, you know, modifications that are 19 requested. Is there anything you have to show some 20 statistically significant increase of these 21 modifications or license amendment requests in the 22 last two years versus what it was the last 10 years?
23 MR. SHADIS: Yes. There is a rapid 24 accelerating curve of applications of what, you 25 know --
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426
- 1 JUDGE KARLIN: Of course, we don't have 2 anything in evidence here on that.
3 MR. SHADIS: Of course not. I'm only 4 relating to you as a pro se advocate, you know, what 5 I can see in terms of volume on these applications.
6 But with respect to this particular notion that they 7 are at some point going to ask for this exception, 8 they are asking for it in the context of extended 9 power uprate. It really identifies operating 10 parameters. It identifies testing parameters within 11 the extended power uprate and affected by it.
12 So, you know, we think this is the proper 13 place to bring this question. We disagree with the 14 reasons that they state for this, and, you know, and 15 our expert lays it out fairly well in his declaration.
16 I mean, we understand that reactors have 17 a limited life of just so many thermal cycles, and to 18 crank up the heat and bring it back down I think is --
19 upper limit of around just even 100 degrees change, 20 and you pretty much have gone through a thermal cycle 21 for one of these things. And it is a way of avoiding 22 that.
23 But to us, that's the cost of doing 24 business if you want to build a new reactor within an 25 old reactor.
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427 1 JUDGE BARATTA: Let me ask you a couple of 2 questions. I didn't understand Mr. Gundersen's 3 statement with respect to whether it makes a 4 difference if --
5 JUDGE KARLIN: There's a modification of 6 the license amendment request in the last two years 7 versus what it was the last ten years.
8 MR. SHADIS: Yes, there's a rapid 9 accelerating curve of applications.
10 JUDGE KARLIN: Of course, we don't have 11 anything in evidence here on that.
12 MR. SHADIS: Of course not. I'm only 13 relating to you as a pro se advocate what I can see in 14 terms of volume on these applications. But with 15 respect to this particular notion that they are at 16 some point going to ask for this exception, they are 17 asking for it in the context of extended power uprate.
18 It really identifies operating parameters. It 19 identifies testing parameters within the extended 20 power uprate and affected buyer, so we think this is 21 the proper place to bring this question.
22 We disagree with the reasons that they 23 state for this, and our expert lays it out fairly well 24 in his declaration. I mean, we understand that 25 reactors have a. limited life of just so many thermal NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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428 1 cycles and to crank up the heat and bring it back f.,: -,
2 down, I think the upper limit is around 100 degrees t-.. -
3 change, and you pretty much have gone through a
..1 4 thermal cycle for one of these things, and it is a way 5 of avoiding that. But to us, that's the cost of doing 6 business if you want to build a new reactor within an 7 old reactor.
8 JUDGE BARATTA: Let me ask you a couple of 9 questions. I didn't understand Mr. Gundersen's 10 statement with respect to whether it makes a 11 difference if the transient were, indeed, unplanned or 12 if it were lever tested. Usually, when you do the 13 lever test about the only difference is you have more 14 instrumentation, you're more able to record the 15 information, but the performance itself is identical.
16 MR. SHADIS: Dr. Baratta, I'm having 17 difficulty hearing as if I'm picking up an echo, but 18 I'm having difficulty hearing simply mechanically 19 hearing. And I'm also, on top of that, not sure I 20 understand your question. Would you mind --
21 JUDGE BARATTA: I just wanted a further 22 explanation of why he highlighted the fact that in 23 some cases it was not known if these transients that 24 are referenced were indeed unplanned, or if they were 25 deliberate tests. In his statement, he makes a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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42 9 1 distinction claiming there's a difference if they were 2 planned versus unplanned. And I was curious as to 3 what was intended there.
4 MR. SHADIS: I think I understand the 5 point that Mr. Gundersen was trying to make; and that 6 is that when you have a planned Large Transient Test, 7 you are very careful to measure all of the inputs and 8 all of the results. And you know very much what the 9 pathways for energy are, what all of the curves look 10 like when you do it.
11 When you have an unplanned transient, 12 you're trying to reconstruct all that, and you've got 13 a bet that your instrument is going to give you real 14 accurate reading on that stuff. And so I think that 15 what he's saying is that while there is work in 16 reviewing for lessons learned and so on what's 17 happened in accidental transients, it doesn't have the 18 same value for assaying plant performance that a 19 planned, carefully monitored transient would have. I 20 think that is his point.
21 JUDGE BARATTA: All right. That's fair.
22 Now I also wanted to ask you, you made a statement 23 earlier that called into question the -- I forget your 24 exact words, but the -- you had lack of confidence in 25 the ability to predict the stresses and that was the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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430 I experience. I think those were your words. I 2 apologize if I -- I didn't write them down, so could I .-
3 you expand on that, as to what you meant by that; 4 because people have been predicting these types of 5 tests for many years, and I'm not aware of any 6 significant discrepancy between their predictions and 7 what occurred. And if you could enlighten me as to 8 what you were referring to, I'd appreciate that.
9 MR. SHADIS: I'm not sure that I or Mr.
10 Gundersen, or New England Coalition has in their 11 possession any evidence that would refute any 12 particular calculations that have been done, any 13 computer modeling that has been done.
14 What we see in the Extended Power Uprate 15 Program is we see a series of unpredicted, unexpected 16 failures of the steam dryers, of instrumentation being 17 swept away, of small bore pipe breaks. And what we're 18 saying here is that the calculations, the computer 19 programming that went into trying to predict these 20 things failed, obviously; because if it had predicted 21 them, measures would have taken to prevent them. So 22 when we say we don't have a great deal of confidence 23 in it, what we're doing is we're looking at 24 experience, and experience tells us if it could have 25 been predicted, it would have been predicted. And NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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431 1 also, the failure of the discipline of predicting 2 these things leaves open the question of what else in 3 the Extended Power Uprate Program has the industry 4 failed to predict. What else is coming? When does 5 the next shoe fall? And so that experience, it's part 6 of a one-on-one kind of correlation, it tells us no, 7 a physical test is inevitably superior to a 8 theoretical test.
9 JUDGE BARATTA: Okay. There's also some 10 discussion in Mr. Gundersen' s declaration with respect 11 to the difference between this power uprate and I 12 guess some previous ones in which there is a -- it 13 says, "Thirteen plants have implemented EPUs without 14 increasing reactor pressure." Could you expand a 15 little bit on that as to what he was referring to 16 there, actually that whole paragraph.
17 MR. SHADIS: Well, you're talking about 18 page 4 are you, sir?
19 JUDGE BARATTA: Yes. The first full 20 paragraph on page 4.
21 MR. SHADIS: Yes. Well, I mean, that 22 sentence begins with, "Entergy then argues", and he is 23 quoting Entergy. Apparently, we're supposed to take 24 some assurance from the fact that constant pressure 25 uprates have been done at 13 plants. And then Mr.
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432 1 Gundersen just points out that Entergy is giving the 2 list a little boost by including two European plants.
3 We don't have any idea what regulations they operate 4 under, and certainly the regulations they operate 5 under don't apply to what we're considering. And I 6 think that's the point that he's trying to make with 7 that. If that makes any sense to you, I'm trying to 8 answer your question.
9 JUDGE BARATTA: I thought there was 10 something else he was trying to make there. I 11 apologize. Thank you.
12 MR. SHADIS: One thing, too, in response 13 to the previous question; I think it's a fact that NRC 14 approved regimes for Extended Power Uprate do require 15 a main steam line isolation valve test, a large 16 transient test.
17 JUDGE BARATTA: That's when the uprate 18 exceeds 10 percent.
19 MR. SHADIS: That's correct, yes. And so 20 what we're looking at here is -- I guess we're getting 21 ahead of a proposal that Entergy is making. I think 22 Entergy needs to properly bring that proposal under 23 Extended Power Uprate, make it a part of their amended 24 application. The failure of the application that it 25 doesn't include some major evolution they intend to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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433 1 undertake, include it in their application, and then 2 let's see if it's -- let's put it to the test and see 3 if it's a good proposal, but under the amendment 4 application is where it really belongs.
5 JUDGE KARLIN: Okay. Thank you. How much 6 time -- there's still some time reserved. Okay. So 7 you still have a rebuttal if you need it.
8 MR. SHADIS: Thank you. I appreciate 9 that.
10 JUDGE KARLIN: Counsel for Entergy.
11 MR. TRAVIESO-DIAZ: Thank you. Before I 12 address the contention itself, Mr. Shadis made a 13 number of factual statements which are both irrelevant 14 and wrong. Obviously, I'm not going to go into all of 15 them, but I want to address one, because this one can 16 be confirmed just by looking at the docket of the 17 Entergy Plant. In fact, in the last two years, there 18 have been fewer license amendments presented by 19 Entergy than the last 10, and you can verify that just 20 by looking at the docket.
21 JUDGE KARLIN: Okay. And my question was 22 perhaps inarticulate. The last two has it been the 23 greater than the trend that was in the last 10; that 24 is, for example, two per year, one per year, and ten 25 years versus two years, a different number. My NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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434 1 question was in the last two years were there more 2 than the prior two years?
3 MR. TRAVIESO-DIAZ: It wasn't you who was 4 inarticulate, it was me. What I was trying to say is 5 that the number of amendments that have been put 6 forward in each of the last two years, compared to the 7 trend over the last 10 has been less.
8 JUDGE KARLIN: All right.
9 MR. TRAVIESO-DIAZ: So that's what I was 10 trying to say. I'm sorry I said it so poorly.
11 JUDGE KARLIN: No.
12 MR. TRAVIESO-DIAZ: Now let's go back 13 again. I'd like to talk about the contention itself.
14 The contention reads, and I'm glad that got some 15 clarification from NRC as to what they want, because 16 it makes it easier to address it. The contention 17 says, "The license amendment should not be approved at 18 this time or until it is agreed by all parties that 19 large transient testing will be a prerequisite to 20 Extended Power Uprate per the staff position on doing 21 Arnold Energy Center. Without adequate 22 characterization, there can be no assurance that the 23 license amendment will adequately safeguard public's 24 health by demonstrating compliance with 10 CFR Part 20 25 Standards."
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435 1 A minor note, which we put in our answer, 2 Part 20 has absolutely nothing to do with this, and 3 I'm not even going to spend time talking about it.
4 But what I do want to spend time is telling you that 5 this justification is part of the EPU application.
6 It's currently before the NRC, so the relief they 7 want, which is to have NRC look at it, they have it.
8 It is going to be considered. NRC will approve it or 9 will deny it. It is part of the application. This is 10 not something like we're talking about the MSI Retest.
11 This is part of the application, and NRC obviously 12 will be reviewing it. So I think that what they're 13 asking for, they already got, so the contention is 14 moot in that respect.
15 Now talking about the contention itself --
16 JUDGE KARLIN: So the justification for 17 exception to Large Transient Testing that they refer 18 to is part of the Entergy application for the EPU.
19 MR. TRAVIESO-DIAZ: Yes. Entergy is 20 asking to be authorized to have an exception so that 21 they don't have to perform this Large Transient Test.
22 That is before the NRC as part of the application 23 currently being considered.
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436 1 says PVY 03-80. This is Attachment 7 to the 2 application.
3 JUDGE KARLIN: All right.
4 MR. TRAVIESO-DIAZ: Now let's go back now 5 and talk about the contention itself, now that we 6 understand what they want and the fact that they have 7 it.
8 Another point that I want to make which 9 is, I think is causing our answer but because it's 10 addressed at such length in the declaration, it needs 11 just to be mentioned. It talks about an ARR at Duane 12 Arnold. Our answer clearly makes the point, and I 13 think it's beyond dispute that whatever the NRC is 14 asking another licensee at another plant, not even 15 ruling, but even asking, is totally relevant to what 16 we're doing here, so I'm not going to cover that 17 unless there is any questions on it. Talking about --
18 JUDGE RUBENSTEIN: What about -- is Duane 19 Arnold the lead plant for the BWR Owners Group or 20 something like that? Are the tests applicable?
21 MR. TRAVIESO-DIAZ: I believe that the 22 first plant in which this particular exception was 23 granted and is operating without having to do the 24 schedule was Hatch. Hatch is, in fact, referred to in 25 justification, and I'll talk about it a little later NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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437 1 if you want me to. In fact, I will. But in any 2 event, I think that the reference to Duane Arnold is 3 absolutely relevant, and we shouldn't be spending time 4 talking about it.
5 Now there are a number of statements that 6 Entergy makes in their justification, which are not 7 refuted by the declaration or by the contention. The 8 statements include first that the EPU makes no change 9 to the plant, except for some changes in the setting 10 of some instruments that would have any effect on how 11 these transients evolve. So there are no 12 modifications, the exception is not an exception to 13 the design or operation to the plant. The exception 14 that they're seeking is not to have to perform this 15 test, and it's clearly - and I believe the declaration 16 at least with this concept - if these tests are 17 unnecessary, you are putting a stress on the system 18 that is just operation and not something you want to 19 do, so if you don't have to do these tests, you don't 20 have to do them. I don't think that the operation is 21 at ease with that either, so that's why they asked for 22 it.
23 JUDGE BARATTA: Could you care to comment 24 on the remark that was made a moment ago, with respect 25 to the inability to predict all the behavior that has NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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438 1 been, in fact, observed during some of these power 2 uprates?
3 MR. TRAVIESO-DIAZ: I'm glad you asked.
4 There are three answers to that. Answer number one is 5 that every time that there is a unplanned transient, 6 all the instrumentation of the plant records how the 7 transient evolves, and after the event you can analyze 8 it to your heart's content; so there is no difference 9 between a planned transient and one that happens. You 10 get the same information and you do the same analysis.
11 Second, in fact, they are talking about --
12 JUDGE RUBENSTEIN: Excuse me. Do your 13 code analyses track with the results of these 14 transients?
15 MR. TRAVIESO-DIAZ: Yes.
16 JUDGE RUBENSTEIN: I think we had a 17 question from Judge Baratta before about the software.
18 MR. TRAVIESO-DIAZ: I apologize. You take 19 a look at justification page 8, at the very end they 20 talk about they used a code called ODYN Code that they 21 use to analyze transients, and the analysis that was 22 performed in the code predicts much of what 23 essentially the kind of behavior that has been 24 experienced at all the plants.
25 JUDGE RUBENSTEIN: And at Hatch.
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439 1 MR. TRAVIESO-DIAZ: I don't know the 2 answer to that. I may be able to have it in a minute.
3 Before I go -- actually, I cannot answer that one, but 4 I will ask -- I will tell you, assuming for the 5 moment, which I disagree with, that there is a 6 distinction between a planned test and one that just 7 happens, take a look at page 7 of the justification.
8 They talk about two circumstances, they have the same 9 result. One was unplanned event at Hatch, in which 10 the performance of Hatch from the transient that was 11 unplanned matched what you would expect, and there 12 were no problems. But the one that I want to talk to 13 you about is not Hatch.
14 At the bottom of page 7 they talk about 15 planned in advance, determined they were going to test 16 of the Leibstadt Plant in Europe. These were not 17 accidents, they were turbine trips that were planned 18 and performed precisely to see how the plant would 19 perform. And those actually again gave the same 20 results; the plant under a transient did exactly as it 21 was supposed to do. So I think that the idea that one 22 kind of test is better than the other is a canard.
23 Either of them gives you equally good and acceptable 24 results, and there has been no deviation in that 25 respect in terms of industry's experience.
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440 1 Okay. And just to mention as a footnote, 2 the distinction that Mr. Shadis was trying to make 3 with the plants in Europe not being regulated by the 4 NRC; a plant is a plant, a transient is a transient, 5 and what you're looking at is how the plant behaves, 6 not who's regulating it. So the results Leibstadt are 7 perfectly applicable, and they show that whether you 8 are indeed planning to perform this test, or it so 9 happens - by the way, this situation has also happened 10 three times. At Vermont Yankee they had unplanned 11 turbine trips that led to generator trips. In each 12 case the plant responded fine, and in accordance to 13 what you expect the behavior to be.
14 Now another point that is made, I'm going 15 to start talking about the facts, just getting them 16 all on the table. Another point they're trying to 17 make is a distinction that I don't understand, or 18 they don't understand, as to why a test which actually 19 happened because of operational reasons at 100 percent 20 power, it would be different than a test at 120 21 percent power. In fact, there is no difference. The 22 power, what you do when you have a transient is that 23 you are testing the operation of all the plant systems 24 that have to react to a quick closure of MSIV valves 25 and so on, so whether you are doing from 75 percent, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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441 1 100 percent, or whatever power it is, you are going to 2 examine in the results of your transient whether your 3 plant is behaving appropriately.
4 JUDGE BARATTA: All right. Now you're 5 telling me that the same situation would exist at 120 6 percent versus 100 percent, particularly in -- do you 7 have full steam dump capability, or do you have 25 8 percent steam dump capability?
9 MR. TRAVIESO-DIAZ: A hundred and five 10 percent, I understand.
11 JUDGE BARATTA: A hundred and five percent 12 steam dump capability.
13 MR. TRAVIESO-DIAZ: Right. Yes.
14 JUDGE BARATTA: So clearly then, you're 15 not going to be -- if you're at 120 percent, you're 16 not going to be at 105 percent, you're at 105 percent 17 relative to your current rating. Is that correct?
18 MR. TRAVIESO-DIAZ: Yes, that is correct.
19 The point that --
20 JUDGE BARATTA: Well, that's clearly a 21 difference.
22 MR. TRAVIESO-DIAZ: Well, the point I was 23 trying to make is that in terms of the ability to 24 observe the performance of your plant's components to 25 a transient --
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442 1 JUDGE BARATTA: That's not going to be the 2 case, because you don't have the same steam dump 3 capability.
4 MR. TRAVIESO-DIAZ: Okay. I stand 5 corrected. If I go back, let me go back for a second 6 to the other things that the justification says that 7 are not challenged. As I said, I refer to the fact 8 that both Vermont Yankee has had transients similar to 9 the ones that you said, maybe not exactly the same 10 because we're having higher power, but for full power 11 they had a transient and the plant has responded 12 properly, and the experience of those transients is 13 now available.
14 Now second is that there is justification, 15 a very long explanation as to the analysis that 16 Entergy has performed looking at the two type of tests 17 for which exception has been sought, the MSIV closure 18 and the LOCA tests. There's three pages of analysis 19 that explain why the plant will perform adequately 20 under those situations, and why you don't need to have 21 a test. The analysis is not contested. It has not 22 been challenged.
23 Also not challenged, that in fact the 24 components -- you're not going to get different 25 information from the behavior of the plant components NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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. . a..
443 1 under a transient of the site as you will get from the 2 exhaustive testing that is done with those components 3 under individual testing. Now, of course, actual 4 systems you may want to test, as well.
5 My point is that again as we were talking 6 about the MSIV contention, here we have the same 7 situation in which there is all that the declaration 8 says, that in his professional opinion this test 9 should be performed. Well, all the justifications 10 that Entergy offers as to why they don't need to be 11 performed are not rebutted, so we just have --
12 JUDGE RUBENSTEIN: How do you address the 13 question that the power distribution as handled by the 14 power flow curve is changed, which says that the rods 15 are in a different position going into a transient?
16 Have you had experience with this? Should I clarify 17 the question?
18 MR. TRAVIESO-DIAZ: Can I have that again?
19 JUDGE RUBENSTEIN: You control the plant 20 on the power flow curve, and this has a certain 21 control rod configuration initially. Well, you're 22 reshaping the core to get it -- your map has changed, 23 hasn't it? And your average discharge temperatures 24 change. Your flux distribution is changed, so now to 25 accommodate that, as opposed to 100 percent operation NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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444 1 in previous times, you've had a certain rod 2 distribution in the core, and now you're entering a 3 transient with a differing rod distribution. Just say 4 a few words on that; control rod distribution.
5 MR. WACHTER: Two minutes.
6 MR. TRAVIESO-DIAZ: My understanding is 7 that under power uprate conditions, you are not 8 increasing the power, but you are increasing the 9 distribution. In other words, what you are changing 10 is the distribution of power generation, as opposed to 11 --
12 JUDGE RUBENSTEIN: And the way you control 13 the distribution of power is through the loading of 14 the fuel and through flattening the curves on the 15 power distribution. And you control this through 16 control rod placement, as you withdraw it, as to the 17 power -- are the initial conditions going into the 18 transient the same?
19 MR. TRAVIESO-DIAZ: I believe yes, that's 20 the case. The initial conditions are the same.
21 JUDGE RUBENSTEIN: Is that a lawyer's 22 answer, or --
23 JUDGE KARLIN: No testimony on that one.
24 MR. TRAVIESO-DIAZ: I'm trying to answer 25 the question. There are some things I know about, but NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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445 1 I won't pretend that I know everything.
2 JUDGE RUBENSTEIN: Okay. I'm willing to 3 accept any answer that makes sense.
4 MR. TRAVIESO-DIAZ: Okay. The answer is 5 yes.
6 JUDGE RUBENSTEIN: So it's a slight 7 departure from the core configuration in terms of 8 power distribution, temperature and flow.
9 MR. TRAVIESO-DIAZ: I think that's 10 correct.
11 JUDGE RUBENSTEIN: Going into the 12 transient.
13 MR. TRAVIESO-DIAZ: I think that's right.
14 JUDGE RUBENSTEIN: Is that a way to --
15 MR. TRAVIESO-DIAZ: I believe that to be 16 the case.
17 JUDGE RUBENSTEIN: You would say it's not 18 the same, but there's a slight departure?
19 MR. TRAVIESO-DIAZ: .It is similar.
20 JUDGE RUBENSTEIN: Okay.
21 JUDGE KARLIN: That's time. I think 22 that's the end of your time. Thank you, Mr. Diaz.
23 MR. TRAVIESO-DIAZ: Thank you.
24 JUDGE KARLIN: Okay. Four minutes -- no, 25 staff. Ms. Poole, yes.
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( 0 ) 3 4 4.. .. . .. . .4. .3. .3r
446 1 MS. POOLE: Here again, we won't add 2 anything to our papers, but we'll do our best to 3 answer questions.
4 JUDGE KARLIN: Okay.
5 JUDGE BARATTA: Good. I've got a few 6 questions.
7 JUDGE KARLIN: Okay. Could you enlighten 8 me a little bit about there's this statement which was 9 in Mr. Gundersen's -- that with respect to -- do you 10 have any information on the background as to why these 11 types of tests are required if there are power 12 increases above 10 percent, does NRC approve this 13 ELTR-1 requiring the MSIV Closure Test to be performed 14 - and I'm referring to page 4 again of his - "If the 15 power uprate is more than 10 percent above previously 16 recorded MSIV closure transient data, topical report 17 also requires the GLR test to be performed, if the 18 uprate is more than 15 percent of previously recorded 19 transient data."
20 And then there's also another statement, 21 too - that says with respect to the topical report 22 that was filed by GE, in here it says, "The NRC Staff" 23 - and this is going to page 3 now - "The NRC Staff 24 does not accept the proposal for the generic 25 elimination of Large Transient Testing." Could you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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447 1 comment on either--one of those?
2 MS. POOLE: I'm afraid that we can't, but 3 we'd be happy to make a supplemental filing if the 4 Board would like. We know that it was required in the 5 NRC approved topical report, but I can't tell you why 6 at the moment.
7 JUDGE BARATTA: If they did, then, of 8 course, the parties would have the opportunity to 9 comment on their filing, I guess.
10 JUDGE KARLIN: Right. I'm not sure 11 whether we want to get into that. Perhaps we can talk 12 for a minute, and hold that in abeyance.
13 JUDGE BARATTA: Yes, we need to talk about 14 it.
15 JUDGE KARLIN: We'll take a recess at a 16 later point, and get back, open the record or 17 something. But you can't answer that question? This 18 is like a basic question. There's been cited, and NRC 19 approved ELTR-1, and it says you've got to require 20 certain testing with an uprate of more than 10 21 percent. I'm sorry to repeat your question, but it 22 seems like a reasonable one. And if it's 15 percent, 23 there's another test that has to be prescribed. And 24 now we have Entergy, which would seem in the face of 25 both of those guidelines or provisions, not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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448 1 requirements, not regulations, they seem to have a lot 2 of moxy to ask for elimination of those tests. And 3 it's under consideration there, but you're not ready 4 to address that?
5 MS. POOLE: I'm afraid we just don't know, 6 but what I can do is make a call at the break, and 7 perhaps I can answer it after the break? Maybe that 8 will help.
9 JUDGE KARLIN: Yes, that might be helpful.
10 MS. POOLE: Okay.
11 JUDGE KARLIN: Any other questions for the 12 staff?
13 JUDGE RUBENSTEIN: No.
14 JUDGE BARATTA: No.
15 JUDGE KARLIN: All right. Thank you, Ms.
16 Poole.
17 MR. SHADIS: Before my time starts --
18 JUDGE KARLIN: You will have four minutes.
19 MR. SHADIS: We'd like to get a written 20 copy of that reply, whatever it is that staff is 21 bringing in, and have the opportunity to reply to it.
22 JUDGE KARLIN: It will be on the record.
23 JUDGE RUBENSTEIN: You're going to make a 24 phone call?
25 MS. POOLE: I'm going to try to make a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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449 1 phone call at the break, and perhaps that will be able 2 to answer the question.
3 JUDGE KARLIN: All we're going to ask is (1:1 4 a question. We've asked a question, and they didn't 5 use up all their time, so we'll give them a little bit 6 of time to answer that question.
7 MR. SHADIS: I see. Well, it's 8 interesting that you raise this.
9 JUDGE KARLIN: And the point is, 15 10 essentially, we're trying to help your case.
11 MR. SHADIS: I understand that.
12 JUDGE KARLIN: We've asked the question, 13 how can they even consider an uprate or a reduction in
<-/- 14 this when there's two existing NRC staff provisions 15 which apparently say you've got to do more testing, 16 not less, when you uprate.
17 MR. SHADIS: We feel you've been 18 consistently helping us, and we appreciate it. You 19 did raise the question, though; you said here NEC has 20 cited the NRC requirements and specific to these 21 topical reports and so on. And neither the staff, nor 22 the applicant, dealt with this in their answer. In 23 fact, and we pointed this out in the beginning of our 24 reply, neither the staff not the applicant included 25 any exhibits in any of their answers, nor did they NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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450 counter the testimony of our experts with any expert 2 testimony in their answers. I mean, it's apparent now 3 that, at least in terms of the applicant, they're 4 seeking to make up for that deficit by trying to slide 5 in evidentiary testimony here. For example, yesterday 6 we heard from a reactor operator, so I just want to 7 make that point so that when you consider our 8 contentions, that you consider them, this one and the 9 all the rest, as essentially unopposed by either 10 exhibits or expert testimony.
11 A couple of quick points. Yes, of course, 12 Mr. Rubenstein is correct - there are changes. Of 13 course, there are changes in the parameters affecting 14 transients under extended power uprate conditions. I 15 mean, that is -- I don't know why the assertion to the 16 contrary was made by the applicant. It's obvious. In 17 fact, wetter steam, decay heat, faster steam flow, the 18 list goes on, so that all changes.
19 And we're curious as to why the experience 20 at Duane Arnold is irrelevant when the experience at 21 some foreign reactor is relevant. You really can't 22 have it both ways on that kind of a split.
23 Also, we were taken to task in Entergy's 24 reply that Mr. Gundersen said that the staff made a 25 decision with respect to Duane Arnold. And, in fact, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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451 1 he misspoke. He should have said the staff took a 2 position, which is a little bit different than making 3 a decision, but he's not a lawyer, and he didn't make 4 that distinction. Our application - excuse me - our 5 request for a hearing and our reply are shot-through 6 with typographical errors and misreferences. And they 7 are small, they do not affect the basic thrust or 8 content, or import of what it is we say. We 9 mistakenly referenced Part 20 in this particular 10 contention, but I don't think it's a fatal error, and 11 we'd ask that you simply overlook the fact that the 12 relevant part of the statute wasn't cited. We meant 13 to speak to that part of 10 CFR that addresses 14 emergency response and releases under accident 15 conditions, not Part 20 which is environmental.
16 I think with that I'll close. I think 17 everything stands on its own.
18 JUDGE RUBENSTEIN: Thank you.
19 JUDGE KARLIN: Any questions? All right.
20 Thank you. Thank you, Mr. Shadis. I think we're at 21 the point we can take an adjournment. We've been 22 pretty efficient here so far. We've gotten three 23 contentions done, so let's take a 10 minute 24 adjournment.
25 (Whereupon, the proceedings in the above-NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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452 I1 entitled matter went off the record at 10:23 a.m. and 2 went back on the record at 10:37 a.m.)
3 JUDGE KARLIN: Okay. We'll go back on the 4 record. Ms. Poole, do you have an answer to the 5 question that Judge Baratta asked?
6 MS. POOLE: I do have an answer. May I 7 have 30 more seconds to confer with the staff?
8 JUDGE KARLIN: Yes.
9 MS. POOLE: Thank you. Okay. Thanks very 10 much for allowing me to make'that call. I apologize 11 for having to do so, but we were able to reach a 12 testing expert who was able to give me an answer that 13 I think will satisfy your question.
14 Start-up testing at initial plant 15 licensing, I was advised, is done primarily as a 16 quality check on analyses that were done, and also to 17 confirm that integrated plant behavior will be as 18 expected, and as analyzed by the licensee. Even 19 though analyses were done for individual systems, he 20 explained to me, when there's a transient, the staff 21 wants to ensure performance will be assumed. That 22 same logic has been used for the Large Transient 23 Testing in the EPU context.
24 It was explained to me that in the balance 25 of planned area on the secondary side, it was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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453 1 important for the staff to understand the details of
(. -2 secondary system behavior; whereas, the staff does a 3 great deal of analysis on the primary system side in 4 individual plant systems looking at codes that are 5 used, et cetera, I was advised that the staff doesn't 6 have as good a feel for the secondary systems which 7 are unique by vendor; and, therefore, Large Transient 8 Testing is done to ensure the secondary side will 9 perform as analyzed, and the interaction between the 10 primary and secondary systems will perform as 11 analyzed. And I was told that the full load rejection 12 was a particularly good Large Transient Test because 13 it provided a great deal of data that was helpful for 14 further analysis later.
15 JUDGE KARLIN: Okay. Thank you.
16 MR. SILBERG: Excuse me. Before we 17 proceed with the next correction, I just want to make 18 sure that the technical responses we were giving in 19 response to the questions were correct, and we're 20 trying to get some wording straightened out just so 21 the record is clear.
22 JUDGE KARLIN: Well, unless the Board, 23 other members have some particular questions here, I 24 don't really think we want to reopen and go back to 25 that.
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454 1 JUDGE RUBENSTEIN: Can they add it --
2 JUDGE BARATTA: I mean, are you saying 3 that there was --
4 JUDGE KARLIN: Do you have a correction of 5 some kind?
6 JUDGE BARATTA: -- errata?
7 MR. SILBERG: Our technical people said 8 that some of the information might not have been as 9 clearly presented, and we just wanted to make sure 10 that it's clear on the record.
11 JUDGEBARATTA: If it's clarification, but 12 if it's -- I'm not particularly interested in hearing 13 it, but if there actually was an error made on a 14 statement, then that's different.
15 MR. SILBERG: No, there was clarification.
16 JUDGE BARATTA: Okay. Let' s move on then.
17 JUDGE KARLIN: This is Contention 5 18 regarding the maintenance of documents.
19 MR. BLOCK: Yes. Again, relying on in 20 this case the need in order to safely accomplish the 21 proposed power uprate that's the subject of the 22 application, there has to be adequate documentation, 23 records maintained. And Mr. Gundersen, who is our 24 expert, had been reviewing documents in his particular 25 area of interest, the cooling tower documents, so he NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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455 1 happened to have some extensive ones available in the 2 Public Service Board proceeding, about 15 inches he 3 describes. And in that case, he discovered a 4 succession of absences or missing information, some of 5 which is part of the design basis. One of those 6 caused him to, when he discovered that, to within, I 7 believe, 24-hours file the allegation that was 8 referred to yesterday. And the question really is how 9 many examples are needed to justify saying that there 10 needs to be, at least as a condition for allowing this 11 to go forward, an extensive review to clear up this 12 problem. He discovered these missing portions of 13 design basis documents, documents that support the 14 design basis, and we are contending that until at 15 least such a review is conducted to each one of the 16 informational areas that are relied upon to support 17 the application, that there can be no assurance that 18 regulations for record keeping are properly being 19 complied with; and, therefore, since the regulations 20 are there in order to, under the Atomic Energy Act, 21 protect occupational public health and safety 22 adequately, that there can't be any adequate assurance 23 of that because of these gaps. And I think that's 24 essentially it. If the Board has some questions, I'd 25 just reserve any time that's left over after NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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456 1 questioning for some rebuttal.
2 JUDGE KARLIN: Okay. Give us a minute 3 here.
4 JUDGE RUBENSTEIN: Now this falls in a 5 class of your contentions similar to the QA/QC, in 6 which you justify or you - pardon me - you attempt to 7 justify that the current licensing basis operation and 8 maintenance of the plant is unsatisfactory, and which, 9 of course, you may have had discussions or had 10 recourse to 2.206 petitions to get this right, or to 11 get satisfaction. And the general part of your logic 12 is that the plant is not right, and this is an 13 assertion at the level until you have some 14 satisfaction from the NRC to 2.206, or some 15 recognition of this, that you can't go to the power 16 uprate. Is this a fair characterization of a number 17 of your --
18 MR. BLOCK: It's close. I think that Mr.
19 Shadis will touch on this in the next contention, but 20 it's clear that our experts were told that when they 21 had raised the 2.206 process in this matter, not in 22 this particular one, but in a related one, take it up 23 at hearing. And so we're trying to bring it up at 24 hearing, and I think I generally agree, but I think 25 that the QA/QC is a distinct one. I mean, I think NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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457 1 perhaps it would have been possible to frame a broader 2 contention that included each of these elements and 3 group them together under that single heading of these 4 failings, that collectively but all individually, each 5 one individually undercuts the necessary basis to 6 provide safety assurance if you go ahead under this 7 application. So I guess if that's a point of 8 agreement, we would agree.
9 JUDGE BARATTA: In no sense am I wanting 10 to be dismissive of your concerns, but each of these, 11 there's a way to address them by petitioning NRC 12 directly. And I keep looking within the scope of our 13 hearing as defined by the Commission to relate it to 14 a power uprate, extended power uprate, how I can 15 create a nexus, other than a general concern that 16 things are not right, and maybe you shouldn't go 17 forward with the power uprate. But in our hearing 18 today, one has to reach a little bit of a closer 19 relationship between these general concerns and the 20 specific questions before us today, so I don't know if 21 there's an answer to that, but it's sort of a comment 22 from the Board, from me.
23 MR. BLOCK: Well, we certainly recognize 24 the problem that you're referring to, but what we're 25 left with is in a very similar situation when the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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458 1 experts raised the 2.206 petition, they said, "Take it 2 up at the hearing". And so we're left with a kind of 3 Catch-22 as to who is going to say the buck stops 4 here, and that clearly, from looking at the 5 declaration, you can see the number of instances Mr.
6 Gundersen cites for missing information that should be 7 there as part of their support for their design basis.
8 And it seems to us that this is a large change, as Mr.
9 Shadis pointed out, in a sense making a new reactor 10 inside the old one. And if you don't have that 11 documentation in place, I don't see how any kind of 12 assurance can be provided to the public that this is 13 going to be -- that the health and safety is 14 adequately protected.
15 JUDGE RUBENSTEIN: In essence, this is a 16 two-step process, not in this particular forum, but 17 you have to get some recognition of your assertion or 18 some agreement in the regulatory sense that (a) this 19 is a problem, and you're saying it's a problem in our 20 forum, and it's not necessarily a problem. It's your 21 viewpoint there's a problem, as it is today, and a 22 proper avenue is the 2.206 or some other petitioning 23 method to the Commission. And that would establish a 24 basis to us to deal with well, this is a power in 25 extended power uprate.
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459 1 JUDGE BARATTA: Could I --
2 JUDGE RUBENSTEIN: Sure.
3 JUDGE BARATTA: For example, you state 4 that the portions of the 1986 Chicago Bridge & Iron 5 Report on the 40-Year Design Life of the plant are 6 missing, and could you explain how that relates to the 7 power uprate as a specific example? Would that help 8 your question?
9 JUDGE RUBENSTEIN: Yes. It's a good 10 example of where I'm coming from.
11 MR. BLOCK: Right. It's part of the 12 design basis documents and it listed a number of 13 thermal cycles that the plant could go through, and 14 portions of the report were missing, just weren't 15 there.
16 JUDGE BARATTA: Okay. So that's a 17 document that deals with the ability of the plant to 18 withstand so many cycles. Is that correct?
19 MR. BLOCK: Correct. Yes. We believe it 20 deals with reactor ductility.
21 JUDGE BARATTA: Okay.
22 MR. BLOCK: Reactor vessel ductility.
23 JUDGE BARATTA: Okay. And then do you 24 know what portions are missing?
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460 1 appraising me of is that when the issue was raised, 2 the document was missing large sections, which then 3 mysteriously were replaced so that once the issue had 4 been raised, that they then made some efforts to 5 replace the missing sections of the documents and put 6 them there, but during the time that the documentation 7 was missing, they were not in compliance with their 8 design basis. Those documents weren't available.
9 JUDGE BARATTA: Okay. When you say they 10 were replaced, were they replaced with original 11 documents?
12 MR. BLOCK: Apparently, but we have no way 13 of verifying whether that's a correct statement or 14 not; just that the pages that were missing were 15 replaced suddenly, once the issue was brought out.
16 And during the time, of course, that they're not 17 there, they're not in compliance.
18 JUDGE BARATTA: Okay. Thank you.
19 MR. BLOCK: Thank you.
20 JUDGE KARLIN: All right. You'll reserve 21 whatever time remains.
22 MR. BLOCK: Yes, thank you.
23 JUDGE KARLIN: Okay.
24 MR. ROSINSKI: Yes.
25 JUDGE KARLIN: Mr. Rosinski.
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461 1 MR. ROSINSKI: I think the question here 2 was properly put forth, how many documents do you need 3 to create a design basis issue, and I think our 4 response will be at least one relevant document. The 5 assertion here is that Entergy has failed to maintain 6 adequate design basis information, contrary to the 7 requirements of 10 CFR 50.54. And for that, the 8 Coalition provides three and maybe four specific cites 9 to supposed design basis information that again are 10 purportedly missing.
11 The first one is a document that they 12 describe as a 1986 Chicago Bridge & Iron Report on the 13 40-year design life of the plant. There was some 14 discussion about this, but there was discussion of a 15 prior submittal of an anonymous allegation that such 16 a document was missing. We responded to that 17 allegation, again not knowing where it exactly came 18 from, that there was no such document to our knowledge 19 that ever existed related to Vermont Yankee, and we 20 didn't have any such document. The response came back 21 again anonymously through the NRC that they were 22 looking for some 1987 document of some sort, of which 23 we provided and said that it was available at the 24 plant.
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462 1 I'm just building on the statements that were made 2 earlier, that it was related. Again we reiterate, 3 there is no 1986 Chicago Bridge & Iron Report that we 4 have any knowledge of. It is not the design basis of 5 what appear to be not the plant, but the reactor 6 vessel, talking about nil ductility.
7 What is the design basis of the reactor 8 vessel at Vermont Yankee is a 1969 General Electric 9 design document, which we have at the plant, which is 10 stamped and certified by a professional engineer which 11 contains all the original design basis information for 12 the vessel.
13 MR. BLOCK: We have to object at this 14 point. If you wanted to provide that, it would have 15 been properly provided by attaching it or referencing 16 it in the answer. This isn't the time to be doing 17 this, and we put that objection on the record.
18 JUDGE KARLIN: Well, I think I'll listen 19 to the note, but I believe that document is referred 20 to in the answer.
21 MR. ROSINSKI: That is my response. We 22 did cite that.
23 JUDGE KARLIN: And they're not putting it 24 in evidence, but they mentioned it in their answer, 25 and you had a chance to address it in your reply, so NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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463 1 I think that's all right. I'm going to overrule that.
2 MR. ROSINSKI: And again I want to 3 reiterate, we're not arguing whether it is or isn't.
4 That is our response to their apparent assertion that 5 the design basis for the reactor vessel cannot be 6 found.
7 JUDGE KARLIN: If I may, I read your 8 answer where you said look, we have no idea what this 9 1986 Chicago Bridge & Iron Report is, we never heard 10 of it, there's no such document. How could there be 11 a problem with it? And then you made some reference 12 to this 1969 design basis document or whatever, and I 13 just didn't see any answer or response in the reply to 14 that; and so, apparently that's just a bit of a 15 strange one, because according to what your answer 16 says, there is no such document, never was.
17 MR. ROSINSKI: Well, again --
18 JUDGE KARLIN: But you'll have an 19 opportunity for reply here.
20 MR. ROSINSKI: The second time we've 21 looked for this type of document, regardless of what -
22 - we did a broad search and we just don't know what 23 they're speaking about.
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464 1 is out of- scope of this hearing, as we briefly 2 discussed here. But factually, also, documented 3 problem about tracking of material in 1979 just 4 doesn't have any relationship to either design basis 5 or EPU. The undocumented cracks on the steam dryer --
6 JUDGE KARLIN: When you say 1979, this is 7 the missing fuel rod documentation.
8 MR. ROSINSKI: Right.
9 JUDGE KARLIN: I guess the issue came up 10 recently, but the documentation problem goes back to 11 '79?
12 MR. ROSINSKI: Yes. It's my understanding 13 that that was as far back as they traced the lack 14 traceability document that establishes --
15 JUDGE KARLIN: But this just came up last 16 spring or something?
17 MR. ROSINSKI: It did, but it's also 18 important to note that the material is where it was 19 supposed to be, it was the paperwork that was --
20 JUDGE KARLIN: The materials where they 21 were supposed to be, but the paperwork was a problem.
22 MR. ROSINSKI: And it is also not a design 23 basis issue in any regard.
24 JUDGE KARLIN: Well, paperwork is very 25 important.
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465 1 MR. ROSINSKI: Design basis paperwork is 2 also very important. This is not design basis 3 paperwork.
4 JUDGE KARLIN: Okay.
5 MR. ROSINSKI: The undocumented cracks in 6 the dryers, using their term "undocumented", there 7 were no inspection requirements for the steam dryer 8 until quite recently. The first opportunity was in 9 April of 2004 for a steam dryer inspection. That II 10 inspection was conducted, and as noted in the 11 application, supplementary application, and extensive 12 inspection of that dryer was performed and documented 13 in at least four inspection reports and numerous 14 analyses, and the indications or cracks as they refer 15 to them that were found were documented.
16 Essentially what we're saying is, as soon 17 as they were found, they were documented, so the only 18 time they were undocumented was when Vermont Yankee 19 was unaware that they were there.
20 JUDGE KARLIN: Let me ask, I think at page 21 34 of your answer, if I've got my notes right, you 22 make reference to inspection of steam dryer, April of 23 '04. And then refer to a document BVY 04058, 24 Attachment 1. Was that attached to your answer?
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466 1 Attachment l to Supplement 8 of the application. It 2 was an RAI response, a pretty extensive RAI response 3 where they asked a specific question, and we got the 4 specific 20-some page --
5 JUDGE KARLIN: So that wasn't attached to 6 your answer.
7 MR. ROSINSKI: No.
8 JUDGE KARLIN: All right. That clarifies 9 it. I mean, again I don't want to burden the 10 pleadings with a lot of documents, but if you 11 reference something of importance, we need to -- it's 12 valuable to see that document if you ask us to really 13 consider the validity of what you're asserting in your 14 pleadings; j ust as I think that 15 Petitioner/Intervenor's attached documents - if 16 there's something important, we need to see it.
17 MR. ROSINSKI: I understand your comment.
18 JUDGE KARLIN: We're not asking for it 19 now, but --
20 MR. ROSINSKI: We did not attach docketed 21 information. And finally, there is a vague discussion 22 of the 1998 response to the again Vermont Yankee, 23 prior to Entergy owning Vermont Yankee, response to 24 the 1997 Commission 50.54F request for information 25 regarding design basis. What relevance that has to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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467 1 Entergy, EPU, or the current issues escapes me.
2 Again, it's outside the scope.
3 I would just also comment on this document 4 which was raised where they got a partial document in 5 a second copy. That was, as I understand what the 6 description was, appears to relate to a discovery 7 issue in the state hearing, where an incomplete copy 8 of a document was provided. Apparently, a second 9 copying issue arose where the blank pages weren't 10 included in the document and the pages, the one of 11 whatever it was, weren't complete. And then a 12 complete document, including all the blank pages, was 13 provided. That's my understanding of that. It wasn't 14 a 1986 Chicago Bridge & Iron Report in any event. I 15 don't know exactly what it was, but it was a document 16 they requested, and eventually they got a full copy, 17 including the blank pages. How that relates to this 18 at all, I have no idea. With that, I'll be happy to 19 answer any of your other questions.
20 JUDGE RUBENSTEIN: This is sort of a 21 general question on licensing basis, but you can 22 answer it in the context of your plant, and it's for 23 my edification. In a number of older plants, not 24 necessarily your's, had an imperfect licensing basis 25 documentation in past years, and then the NRC put out NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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468 1 a requirement or initiative that all plants would have 2 to have a proper licensing basis documentation. What 3 period of time did you update your's, and when was it 4 reviewed and approved, or considered to be done?
5 MR. ROSINSKI: I can't answer that 6 question. Following the 1997 Commission request for 7 information and the '98 response, Vermont Yankee 8 undertook approximately a two-year effort, something 9 on the order of $20 million to review its design basis 10 and to ascertain what wasn't in the condition that 11 they wanted it to be, and did the upgrade. One of the 12 outputs of that, my understanding, is what was called 13 design basis documents, which a good number exist on 14 systems important to the plant where they specifically 15 collated the design basis information into a document, 16 a plant document which is used in design reviews and 17 design basis, to answer design basis questions.
18 JUDGE RUBENSTEIN: This is sort of a 19 publicly available document?
20 MR. ROSINSKI: It is not publicly 21 available. It's a controlled procedure, controlled 22 document within the plant.
23 JUDGE RUBENSTEIN: Okay.
24 MR. ROSINSKI: So it wouldn't necessarily 25 be available.
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469 1 JUDGE RUBENSTEIN: But you have an 2 established design basis document that defines your 3 current licensing basis, and it's been sort of blessed 4 by the NRC?
5 MR. ROSINSKI: I'll just be careful with 6 the difference between --
7 JUDGE RUBENSTEIN: I didn't say reviewed 8 and approved.
9 MR. ROSINSKI: I was going to quibble a 10 bit with the licensing basis versus design basis.
11 JUDGE RUBENSTEIN: Okay.
12 MR. ROSINSKI: Design basis is defined in 13 50.2, the particular group of information. Licensing 14 basis, as you know, is a bit broader than that.
15 JUDGE RUBENSTEIN: I stand corrected.
16 MR. ROSINSKI: We do, it's my 17 understanding, try to incorporate all the licensing 18 basis, but because that changes more often with the 19 administrative --
20 JUDGE RUBENSTEIN: The licensing basis is 21 in your license.
22 MR. ROSINSKI: Right. Right. That's 23 defined by license --
24 JUDGE RUBENSTEIN: With the tech specs, 25 environmental tech specs, and the LCOs, and the LSSS, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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470 1 and other good things that define your operation.
2 MR. ROSINSKI: Yes, sir. As the title I11- (_.; , :
3 would suggest, the design basis documents, the purpose 4 of those was to collate the design basis information.
5 JUDGE RUBENSTEIN: Okay. Thank you.
6 JUDGE KARLIN: Any more questions?
7 JUDGE BARATTA: So you have no knowledge 8 of this report that is referenced by the Intervenor, 9 the Chicago Bridge & Iron Report. Is that correct?
10 MR. ROSINSKI: Vermont Yankee cannot 11 identify any document even reasonably close to that 12 description.
13 JUDGE BARATTA: What was the document, 14 though, that was provided in an incomplete form during 15 the state --
16 MR. ROSINSKI: We can provide that 17 information. I do not have it right -- I do know it 18 was a specific Vermont Yankee calculation that they 19 were seeking, and that was what was provided.
20 JUDGE BARATTA: Was that related to the 21 reactor vessel?
22 MR. ROSINSKI: I don't know.
23 JUDGE KARLIN: All right. Thank you, Mr.
24 Rosinski. Staff.
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471 1 add, unless you have any questions you'd like us to 2 answer.
3 JUDGE KARLIN: Okay. And could you 4 introduce yourself again, I'm sorry.
5 MS. HIGGINS: Marisa Higgins, attorney 6 with OGC.
7 JUDGE KARLIN: Any questions? No. Mr.
8 Block.
9 MR. BLOCK: Briefly. Our expert tells us 10 that, in fact, he has a copy of the Chicago Bridge &
11 Iron Report, and from his point of view, he described 12 it as being the straw that broke the camel's back in 13 getting provision of the missing portions of it, 14 getting the Public Service Board to sanction Entergy 15 for $51,000 for violating discovery. And I guess we 16 can get in touch with him and produce a copy to the 17 Board if you'd like to have that from us.
18 We also note that on the steam dryer 19 issue, that we believe that the crack failure was only 20 first noted in 2002, and isn't something that would 21 have been assessable until they had a refueling.
22 Those were the only two points I wanted to address.
23 JUDGE KARLIN: Okay.
24 JUDGE BARATTA: That document that -- I'm 25 a little confused because Entergy alluded to a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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472 1 document that was entered into some prior proceeding 2 as the document that they thought you were referring I (L-----
3 to. And I gather that's not the document?
4 MR. BLOCK: There may have been another 5 document. You know, there may well be another one, 6 but there is, according to Mr. Gundersen, the Chicago 7 Bridge & Iron Report. And apparently, that was 8 provided to him by way of discovery after sanctions 9 had to be imposed. And he was an expert witness in 10 that case.
11 JUDGE KARLIN: Any further questions?
12 JUDGE RUBENSTEIN: No, thank you.
13 JUDGE KARLIN: All right. Thank you.
14 MR. BLOCK: And I just wanted to close by 15 saying in any case, in these instances they've offered 16 no document to refute what Mr. Gundersen is saying.
17 JUDGE KARLIN: All right. Thank you. I 18 guess we proceed to your contention, Coalition 19 Contention 7.
20 MR. BLOCK: Right.
21 JUDGE KARLIN: Will you be arguing that?
22 MR. BLOCK: This last one is Mr. Shadis.
23 JUDGE KARLIN: Okay.
24 MR. SHADIS: I'm sorry.
25 JUDGE KARLIN: Well, we were waiting for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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"; "',. .':7
473 1 you-to proceed.
2 MR. SHADIS: I thought you were reviewing 3 the contention in your own --
4 JUDGE KARLIN: No, I'm sorry. We're S waiting for you to proceed. Go ahead.
6 MR. SHADIS: I'm ready to go.
7 JUDGE KARLIN: I'm sorry.
8 MR. SHADIS: Thank you very much. At the 9 heart of this contention is the requirement to keep 10 documents and the regulation cited is 50.71(E),
11 although I think that we intended a small "e", but 12 nonetheless, this part of the regulation refers to the 13 keeping of updated final safety analysis reports. The 14 FSAR, as the Board knows, is the constitution of any 15 given power plant, its physical and operational 16 constitution. It embodies any determinations with 17 respect to the material condition of the plant, to its 18 operating parameters, to its operating rules. And it 19 is New England Coalition's position that before you 20 can assess whether or not proposed changes and 21 modifications such as those in the EPU application can 22 be reviewed with assurance to public health and 23 safety, the reviewer must have ready access to a 24 complete and coherent, and understandable FSAR and all 25 the attendant design basis documents.
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474 1 Our expert, Mr. Blanch, has provided 2 testimony with respect to his experience in trying to 3 find out what design criteria and what regulations the 4 plant now operates, or is supposed to be operating in 5 conformance with, and how they will apply under 6 uprate. And he explains his frustrations in being 7 directed by both the plant owners and by NRC to a 8 specific portion of the UFSAR, only to find out that 9 that portion says "for historical purposes only, see 10 elsewhere", and there's really a broken trail of 11 information that he refers to.
12 It is clear that in terms of licensing 13 proceedings for new construction, that the NRC has 14 found dating back to the early 1980s, that yes, they 15 must make a finding that there is compliance with all 16 applicable NRC safety regulations. And if not, 17 whether the safety review process provides a legally 18 adequate basis for an affirmative finding of 19 compliance. In there early work referenced, Section 20 185 of the Atomic Energy Act provides that operating 21 licenses are issued upon a finding that the facility 22 authorized has been constructed and will operate in 23 conformity with the rules and regulations of the 24 Commission. So the Atomic Energy Act itself requires 25 a finding of compliance with all applicable NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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475 1 regulations before issuance of an operating license.-'
2 JUDGE BARATTA: That's for initial 3 operating license.
4 MR. SHADIS: That's correct.
5 JUDGE BARATTA: There's different 6 proceedings with respect to amendments on license.
7 MR. SHADIS: That's correct. And I offer 8 you that the same kind of requirements, if not as 9 stringent, need apply when you are changing, 10 significantly changing the thermal power license, and 11 when you are changing attendant equipment, and 12 adjusting all the operating parameters of a plant. As 13 we discussed earlier, we are in essence plugging in 14 100 megawatt plant within this whole 500 megawatt 15 plant, and this is - and I know you're not going to 16 accept this, but this is, in our view, tantamount to 17 building a new plant. Nonetheless, it is also a major 18 significant evolution, and NRC, as I've also explained 19 earlier, initially refused to do an independent safety 20 assessment or an independent engineering assessment 21 asserting that their standard regime of inspection 22 found the plant to be in conformance.
23 What we're saying is the plant is not in 24 conformance. It certainly is not in conformance with 25 all of the applications - excuse me - with all of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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476 1 regulations regarding maintaining an updated final 2 safety analysis report. And it goes right to the 3 core, to the heart of design basis. It goes to the 4 heart of beginning to risk-inform regulation. You may 5 recall that in 1996, that NRC Chairman, Shirley 6 Jackson, issued a confirmatory letter requiring all 7 the licensees to pony-up and get their licensing basis 8 in order. It gives us very little confidence to find 9 Entergy now asserting that in the last few years they 10 spent $20 million trying to upgrade the licensing 11 basis of Vermont Yankee, and still that they do not 12 have a coherent, you can find it all in one place, 13 updated final safety analysis report. I think that's 14 at the core of our problem.
15 JUDGE KARLIN: Well, let me -- I want to 16 focus on that. I mean, Contention 7 I'm looking at.
17 "Entergy has failed to comply with the Regulation 18 50.71(E), maintenance of records. Observe of this 19 rule is essential. Our records provide a measure upon 20 which future activities can be predicated. Without 21 accurate and clear records, no meaningful review of 22 the proposed uprate can take place. Therefore, NRC 23 should deny the amendment." That's it, that's the 24 whole thing that you state there.
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477 1 attached, and so I'm studying that. And it appears on 2 page 3, "Failure to comply with the requirements of 3 50.71 (e), maintenance of records." Then he goes on to 4 quote the regulation at some length, and that's fine.
5 And then he indicates that there's a reg guide from 6 the NRC, and the reg guide makes a reference to NEI 7 98-03 for methods or guidelines acceptable to the NRC 8 staff for complying with provisions of that reg.
9 Then we have in that guideline attached to 10 a guideline a statement saying, "Historical 11 information is that which is provided in the original 12 FSAR to meet the requirements of the regulation", such 13 and such, "and meets one of the following bullets."
14 We get apparently to the gist of the 15 problem, the only specific thing you seem to have 16 raised here, is that the Vermont Yankee in its 17 proposed Rev 18 to the UFSAR is misapplying the label 18 "historical information"; that apparently, they've put 19 information in there which Mr. Blanch believes is 20 improperly labeled as "historical information". And 21 by classifying the compliance with the general design 22 criteria as historical, Vermont Yankee is proposing to 23 remove all commitments to the basic regulatory 24 requirements. While I think it's patently incorrect 25 to think that some label in some document submitted by NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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478 1 Vermont Yankee could possibly change the regulatory 2 status of those requirements, and that's -- there's 3 another page to this declaration by Mr. Blanch. I'm 4 not sure -- the gist of this is simply that on one 5 document they put the wrong label on a certain segment 6 of information.
7 JUDGE KARLIN: I'm not even sure it's the 8 wrong label, but I'll posit that for a minute.
9 JUDGE BARATTA: All right. I'll let you 10 posit that. I apologize for interrupting.
11 JUDGE KARLIN: The question is, is that 12 all you've got to support this allegation?
13 MR. SHADIS: No.
14 JUDGE KARLIN: Well, that's all you put 15 down on paper.
16 MR. SHADIS: Well, I think that it is 17 clear from Mr. Blanch's declaration in our reply, and 18 also from this declaration that Mr. Blanch has 19 attempted to ascertain the conformance or non-20 conformance of Vermont Yankee with applicable 21 regulations, that he went to the FSAR, as we've heard, 22 and after consulting with NRC and with the licensee, 23 he went to the FSAR to the section referred to, and 24 there he found this reference to documents being there 25 for historical purposes only. And if that's the case, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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479 1 then they're not there to demonstrate compliance. And 2 so it's --
3 JUDGE KARLIN: I don't think that 4 dichotomy exists, necessarily. I don't see that in 5 the --
6 MR. SHADIS: Pardon me?
7 JUDGE KARLIN: The guidance to a guidance 8 has a concept of the definition of historical 9 information, and even in that which has no regulatory 10 power or it doesn't say that historical information is 11 not enforceable.
12 MR. SHADIS: Yes.
13 JUDGE KARLIN: And I don't see anything in 14 the reply. I mean, where in the reply are we given 15 anything on this? There's two pages dedicated in the 16 reply to this issue, and I didn't see anything more 17 cited. I mean, I'm trying to understand what you're 18 saying here; pages 41 --
19 MR. SHADIS: I'm trying to --
20 JUDGE KARLIN: -- to page 43, top two 21 lines.
22 MR. SHADIS: Yes. I was referring to the 23 famous floating declaration, the one that got detached 24 from our reply.
25 JUDGE KARLIN: Is it addressed there?
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480 1 tMR. SHADIS: Yes. Well, Mr. Blanch says, 2 "My review of the UFSAR and all other design and 3 licensing basis documents failed to uncover the 4 referenced information."
5 JUDGE KARLIN: Okay.
6 MR. SHADIS: We do have an electronic copy 7 of what purports to be the UFSAR. It's some 20,000 8 pages worth, I think, as I recall; and he's done a 9 fairly sophisticated electronic search on it, and we 10 are unable to determine if Vermont Yankee is in 11 compliance or not in compliance as it sits at 100 12 percent, never mind going to 120.
13 JUDGE KARLIN: Where is that? Help me, 14 where is that in Mr. --
15 MR. SHADIS: Mr. Blanch says on page 3 of 16 his declaration in support of our reply, "My review of 17 the UFSAR and all other design and licensing basis 18 documents failed to uncover the referenced 19 information."
20 JUDGE KARLIN: Okay.
21 MR. SHADIS: And he starts actually - I 22 think he starts on page 2 with a history of his 23 search. Let me see. He says, "Finally, in examining 24 the UFSAR for Vermont Yankee Nuclear Power Station, 25 one finds the following statement concerning Entergy's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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481 1 compliance regarding compliance with design criteria."
2 And it's regarding compliance with the design criteria 3 - "information regarding the application of the 4 general design criteria can be found elsewhere in the 5 UFSAR and in other design and licensing basis 6 documents." And that is a quote from that portion of 7 the UPSAR. And .Mr. Blanch was then referred to 8 Appendix F, and he says that my review of this and all 9 the other documents failed to uncover the referenced 10 information.
11 Additionally - I don't know if we provided 12 it or not - I guess we did. We mentioned it 13 yesterday; that Mr. Blanch and Mr. Gundersen both 14 assessed that this was an issue at Vermont Yankee, and 15 they took it to a 2.206 Petition Review Board. And 16 Mr. Dyer of NRR referred them here, so here we are.
17 JUDGE KARLIN: So a 2.206 petition was 18 filed and was rejected?
19 JUDGE RUBENSTEIN: Put in abeyance, I 20 guess.
21 MR. SHADIS: It isn't -- at this moment it 22 was refiled. They insisted on amending it and 23 refiling it, and we're in anticipation of a letter 24 from the Petition Review Board, and it's been a few 25 weeks in coming. For some reason or another, that's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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482 1 held up, but the letter denying the initial petition 2 from Mr. Dyer refers Mr. Blanch and Mr. Gundersen to 3 this proceeding. And even though I think their 4 petition actually went beyond what we're covering in 5 this proceeding, that's what they were directed to.
6 JUDGE KARLIN: Well, I'm not sure what 7 they did, but I think for the public and so you know, 8 the scope of what we're doing here today 9 So, a 2.206 petition was filed and was 10 rejected.
11 JUDGE RUBENSTEIN: Put in abeyance I got 12 the impression.
13 MR. SHADIS: It isn't at this moment, it 14 was refiled. They insisted on amending it and 15 refiling it and we're in anticipation of a letter from 16 the petition review board and it's been a few weeks 17 and coming. For some reason or another that's held up 18 but the letter denying the original petition from Mr.
19 Dyer refers Mr. Blanch and Mr. Gundersen to this 20 proceeding and even though, I think their petition 21 actually went beyond what we're covering in this 22 proceeding, that's what they were directed to.
23 JUDGE KARLIN: Well, I mean, I'm not sure 24 what they did but I think for the public and you know, 25 our scope of what we're doing here today is the Delta NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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483 1 or the increase, the upgrade of 20 percent. There is, 2 an existing license for this facility. It's been in 3 existence for many years. There are a lot of 4 regulatory requirements in that license and you have 5 raised issues as to whether they are in compliance 6 with some of those regulatory requirements. We don't 7 know anything about that other than what's been 8 presented in the pleadings here in the last two days, 9 but for the audience, we've been referring to 2.206 10 and what that is, is a mechanism whereby someone who 11 thinks that a current licensee is in violation of some 12 requirement, can go to the Commission, to the staff, 13 not to this board, and ask them to do something about 14 it, take an enforcement action or make some change.
15 Apparently that has been requested here. What we're 16 doing is not regulating -- what this board is here to 17 do doesn't have anything to do with the existing 18 license of whether they've complied with it.
19 It is whether they should get the 20 20 percent upgrade and to some extent compliance with the 21 current license may be relevant and you're raising 22 these arguments. But if Mr. Dyer or someone says, 23 come here, you come here, we're trying to deal with it 24 but I think we think that a current non-compliance, if 25 you allege that exists, the proper venue is to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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484 1 petition for the staff to take action under 2.206 and 2 apparently you've been trying to do that.
3 MR. SHADIS: So we get ping-ponged back 4 there but --
5 JUDGE KARLIN: We're not trying to ping-6 pong you back there but I think you know and we know 7 that this is an uprate and that's compliance with the 8 existing permit and we can't really get into enforcing 9 them -- against them.
10 JUDGE RUBENSTEIN: Excuse me, let me add 11 to that before you answer it. What I tried to do with 12 my previous question was pretty much to set the stage 13 for Judge Karlin, in a sense. The design basis 14 documents were updated and documented and are in the 15 plant and were inspected, I'm going to use that word, 16 by the NRC that they exist. The licensing basis and 17 documentation is in the license and amendments.
18 That's the current state of the plan.
19 Now, the Commission -- the NRC can the 20 commissioners take very important to them the concern 21 that the review of the upgrade is technically 22 competent. And in that view and in a letter from the 23 chairman of the NRC to Mr. Dworkin, who I guess is 24 chairman of the DPS, they outlined the review 25 procedure special to the extended power uprate of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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485 1 plant. And in this they referenced a-document which 2 they had -- I don't know -- much agony in producing or 3 many man-hours if one wants to talk about it 4 specifically, review Standard 001. And they also said 5 that in addition to the standard inspection and the 6 fact that they have a site representative on the site 7 here in Vermont, and I assume DPS has an individual at 8 the plant full time doing an -- not full time? Well, 9 has a representative there part time.
10 But that's for them to do. NRC 11 obligations are fulfilled by the NRC and they also 12 executed a special inspection whose results are 13 pending. So for this particular instance, we're 14 dealing with the SAR that the licensee has proposed 15 and auxiliary documentation that goes with it for the 16 extended upgrade and any things that the staff will 17 have found in the Review Standard 001. So I want to 18 give a complete picture of the review process 19 understanding at the plant. And if you have a 20 different understanding, we would love to hear it.
21 MR. SHADIS: Well, I have Mr. Dyer's 22 letter to Mr. Gundersen and Mr. Blanch and, indeed, 23 you know, RS 001 and the new engineering inspection 24 regimented team, engineering inspection are mentioned.
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486 1 description of a design basis of Vermont Yankee, 2 information regarding current design configuration.
3 It's found elsewhere meaning not in Appendix F, found 4 elsewhere in the UFSAR and in other design basis 5 information which is fine, you know. It doesn't tell 6 us where that is and then it says that the -- for 7 purposes of performing the inspection that we're 8 talking about the design basis of Vermont Yankee as 9 described above is the design basis that will use the 10 -- will be used by the engineering inspection team.
11 Our contention here is that that design 12 basis is not in order. This letter from Mr. Dyer 13 draws the clear connection that the inspection, 14 special inspection, for extended power uprate is being 15 based on this loosely described design basis. It is 16 not a coherent find it in one place UFSAR as described 17 in the regulation. And so what we're saying is, 18 there's -- without having it, there's no way that NRC 19 can provide assurance that the plant is operating in 20 conformance with regulation and therefore, it cannot 21 provide assurance that it is operating in a way to 22 protect public health and safety.
23 And finally, I need to say --
24 JUDGE KARLIN: Was there a two-minute 25 warning?
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487 1 MR. WACHTER: I'm sorry, I didn't hear it.
2 JUDGE KARLIN: You can finish your 3 sentence.
4 MR. SHADIS: Notwithstanding the position 5 discussed in this response, I remind you that the 6 application for extended power uprate provides the 7 public with an opportunity to request a hearing on any 8 issues relevant to the uprate. And for this reason, 9 the staff will not treat this request under 10 CFR 10 2206 process because these issues can be addressed 11 through the ongoing licensing proceeding and I will 12 tell you that this letter, in essence, the same body, 13 the same information, was senit to Vermont's 14 congressional team when they made the same inquiry.
15 So that is how we are directed, thank you 16 for the additional time.
17 JUDGE KARLIN: Thank you. Mr. Rosinski.
18 MR. ROSINSKI: Yes, once again, I think we 19 need to refocus on the actual contention. We've had 20 some pretty broad discussion of licensing, design 21 basis and ancillary issues. Let's look at what the 22 contention says. It only says a few things as the 23 Chairman has pointed out. But it does say that 24 allegedly update final safety analysis report 25 improperly classifies compliance with GDC historical NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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488 1 information:; I think we touched upon that but this 2 does illustrate the potential slippery slope of 3 granting Reg Guides regulatory recognition because now 4 they're using the Reg Guide and the Reg Guide is 5 concurrent with an industry guide and you know, how 6 far down do we go?
7 They're trying to apply that standard 8 here. So regardless of whether it's properly 9 historical or not, which we contend it is for the 10 reasons we described in our brief, we're trying to 11 apply a second here suggestion or guidance as a 12 regulatory impact. The only regulation here that was 13 sited is 5071 (e), 10 CFR 5071 (e) which simply says --
14 requires licensees to update periodically the final 15 safety analysis report annually or six months after 16 each refueling outage. There's not even an allegation 17 that we haven't done that.
18 Whatever else is here, is that is 19 factually incorrect. The citation and the only 20 citation that the Chairman noted to any portion of the 21 UFSAR is the supposed pending or proposed Revision 18.
22 As we said in our brief, that was submitted in April 23 of 2003. So again, whatever the merits of the 24 argument, which we contend there aren't any, this is 25 on a segment or a revision, an annual revision that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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489 1 was-required per 5071 (e) that went in well over a year 2 before this contention was written.
3 The next assertion is that Appendix F of 4 the Vermont Yankee updated final safety analysis 5 report wrongly states that compliance with draft GDC 6 is addresses elsewhere in the FSAR. I think this gets 7 down to a question of what the "it" is that they're 8 looking here for. If they're looking for a specific 9 citation or a table of GDC compliance, that is not 10 what is in the FSAR, nor what is required or should be 11 in the FSAR. The FSAR is not the constitution, we'll 12 take objection to that language. It is a document 13 that is supposed to describe the safety analysis and 14 the basis for the safety analysis of the plant. It 15 does. It does not describe it in the general terms of 16 the GDCs or the draft GDCs. It describes it in much 17 more detail than that.
18 If this electronic word search they were 19 doing was looking for the word "GDC", it probably 20 didn't find it. VY has gone to great effort to update 21 and provide more detail than just the GDC. It 22 describes the codes and standards, for example, that 23 are actually applied. It describes and lists the 24 calculations and the codes, the electronic codes that 25 we talked about before that the analyses are based on.
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490 1 It goes into a different level of detail. Without 2 knowing, because they didn't describe in their 3 contention what they were looking for, it's hard to 4 argue with them that they couldn't find it.
5 The key here is that regardless of all 6 these errors, the issue of the updating of the FSAR is 7 just outside any reasonable scope of an EPU 8 proceeding. Not only -- none of these examples have 9 anything to do with updating the FSAR. It also has 10 absolutely nothing to do with EPU.
11 JUDGE KARLIN: Well, let me ask you on 12 that, I'm not so sure. If you've got the current 13 licensing basis and you're asking or Entergy is asking 14 for a 20 percent increase. In order to evaluate what 15 the 20 percent is, we have to know what the baseline 16 is, don't we? And if the baseline is unclear, vague 17 or not there at all, then don't we have a problem in 18 understanding what that 20 percent is if we don't know 19 what this 100 percent is? We don't have that line in 20 between the two, then how can we know where the border 21 is on the 20 percent because we're looking at the 20 22 percent but there's no line there. Isn't that 23 relevant?
24 MR. ROSINSKI: Two answers, it is relevant 25 to the scope of the design basis that would possibly NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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491 1 be'impacted by the proposed change. I think matching 2 the scope of the proceedings to the scope of the 3 design basis information, that is relevant to the 4 proceeding. The design basis information that is 5 relevant to the proceeding has been submitted in the 6 application.
7 JUDGE KARLIN: No, I think the point 8 you're making is there has to be some specific problem 9 with regard to some element of the current licensing 10 basis which is in question as opposed to just the 11 abstract principle.
12 MR. ROSINSKI: That was my second point.
13 Not only do you have to define scope right, but then 14 you have to point to what you consider improper. If 15 the question here, they don't say GDCX, I would submit 16 that doesn't matter. That's immaterial. What they 17 want to say is the basis for this flow or for using 18 this code is incorrect. We could respond to that. We 19 can't respond to, "I didn't find what I was looking 20 for". It's a big document. It's 20,000 pages. It's 21 also a lot larger when you say you've looked at all 22 the licensing data. That's incredibly much larger.
23 In any event, it is not the basis for a contention 24 that we looked and we couldn't find it because we 25 don't even know what it is here.
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492 1 They just said they can't find it:
2 JUDGE KARLIN: Yes.
3 JUDGE RUBENSTEIN: As a general comment, 4 not out of your time, to help Mr. Shadis, the NRC has 5 a standard review plan for each section in the FSAR.
6 And I think the first paragraph in the standard review 7 plan is the GDC and the regulatory basis for that 8 section and what the requirements are and in a minute 9 or two when it's the staff's turn, I'll ask them to 10 expand on that.
11 MR. ROSINSKI: I appreciate the setup. My 12 next point was that in Supplement 4 -- Attachment 4 to 13 Supplement 4 of the application, which went in well 14 before the contentions were due. We have a revised 15 safety evaluation template for GDC. That is the title 16 of the document. Now, I'll refer you to Section 2.12 17 since they raise pressure -- ductility issues here.
18 In it, it describes the regulatory evaluation criteria 19 for this section, for this EPU.
20 JUDGE KARLIN: Is this the document you 21 refer to in your answer?
22 MR. ROSINSKI: I don't believe we 23 specifically refer to this. This is the application.
24 It's on the docket.
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493 1 docket but we don't have it and we're not going to go 2 look through 20,000 pages to find what you're
(-.I fK>
3 referring to.
4 MR. ROSINSKI: I understand your point.
5 I will put this section of it, just to be clear, even 6 if they were looking for GDCs, this specifically says, 7 "The NRC inspects the area for PT limits are based on 8 one, draft GDC 9, insofar as it requires", et cetera.
9 Number two, "Draft GDC 33" further language, Number 10 three, Draft GDC 34 and on and on. This is the plant 11 specific, this is Vermont Yankee's submittal to the 12 NRC staff of what the design criteria are so that they 13 can apply back to see if we meet them.
14 Now, I apologize for not having submitted 15 this but this is on the docket and this is what the 16 staff are going to use to address their contentions.
17 They have an iron clad responsibility to review the 18 application before submitting and it just went it, I 19 can't give you the date, but it was well before --
20 January 31st, 2004 is Supplement 4 and before that, 21 just to keep it even simpler, in the original --
22 Supplement 1, which was in 2003, it provider an even 23 simpler one which was a matrix. It's entitled 24 "AEC/GDC Matrix" from the AEC draft GDC numbers for 25 each one to the 10 CFR Appendix A GDC, cross NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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494 1 referencing each one. That was in the supplement that 2 came in very shortly after the original application.
3 JUDGE KARLIN: Okay, I think we understand 4 that.
5 MR. ROSINSKI: That's all I have unless 6 you have some questions.
7 JUDGE KARLIN: Question? Okay, Ms 8 Higgins?
9 MS. HIGGINS: Yes, I'll start out 10 answering Judge Rubenstein's question.
11 JUDGE RUBENSTEIN: Okay, would you want me 12 to repeat it?
13 MS. HIGGINS: Yes, that would be great, 14 thank you.
15 JUDGE RUBENSTEIN: Okay. I guess, in 16 trying to help the Petitioner look for a way to assess 17 whether something in the FSAR is in regulatory 18 compliance, an easier way than to go through the 19 20,000 pages would be to start with the Standard 20 Review Plan which in the initial section cites the 21 regulatory requirements, the GDCs and the basis for 22 that review and what the review is. And if you want 23 to expand on it or amplify that, please do.
24 MS. HIGGINS: I would note that we did ask 25 Entergy to revise Standard Review Plan 0, Review NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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495 1 Standard 001 to reference their specific licensing
\ l 2 dates as -- especially with respect to the safety 3 evaluation, the draft safety evaluation, we included 4 in there. We asked them to revise it.
5 JUDGE RUBENSTEIN: Okay.
6 JUDGE KARLIN: Anything else to present?
7 Questions?
8 MS. HIGGINS: We have nothing further, if 9 you have questions.
10 JUDGE RUBENSTEIN: Thank you.
11 JUDGE KARLIN: Okay, thank you. I think 12 that concludes this contention and actually all the 13 contentions. I think it's gone quite well.
14 Appreciate the input. We're going to take a break now 15 and we now have the final, you know, issues relating 16 to the hearing, format of the hearing and right to 17 cross examination and we'll finally get to put Mr.
18 Roisman to work. He's had the morning off and now we 19 can hear from him. I suggest we take a 15-minute 20 break. There are some wonderful machines down the 21 hall. Everyone can get some nourishment and we'll 22 just go right through and finish it up. I think it's 23 an hour and 15 minutes total, so if we can reconvene 24 in about 15 minutes, we'll finish it up. Thank you.
25 (A brief recess was taken.)
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496 1 JUDGE KARLIN: Sorry to keep you waiting.
2 It seems like you're raring to go for our finale. The 3 nature of the hearing that would be sought and 4 appropriate, if in fact contentions are admitted and 5 Mr. Roisman, I think you have 20 minutes.
6 MR. ROISMAN: Okay, I'm going to leave 7 five of those for rebuttal, please.
8 JUDGE KARLIN: All right.
9 MR. ROISMAN: At root, we should focus on 10 what the differences are between Subpart G and Subpart 11 L. And essentially, for purposes of this discussion 12 this morning, there are two crucial ones. Under 13 Subpart L there is no discovery other than that 14 provided by Section 2.336 and under L, cross 15 examination by the parties is restricted to those 16 instances in which the Board and upon application 17 determines that such cross examination is quote 18 "necessary to insure development of an adequate record 19 for decision", that's Section 12.04(b).
20 My main thesis today is that given what 21 you have heard in the last day and a half, to the 22 extent that you rule on the admissibility of any of 23 these contentions. I believe that you will determine 24 and should determine that in order to have the most 25 efficient, effective process that Subpart G will work NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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497 1 markedly better than Subpart L would work, given the 2 nature and complexity of these contentions.
3 First of all, under Subpart L, the way in 4 which questions get asked is extraordinarily 5 convoluted. The parties submit a set of questions to 6 the Board which are not served on the other parties.
7 The Board then decides which of those questions it 8 will ask. There's no way, of course, for the question 9 to then tell the Board what the follow-up question 10 should be because, of course, the Board doesn't know 11 what the answer is going to be so you don't know what 12 the follow-up should be. This is something similar to 13 the way congressional hearings take place in which 14 congressmen and senators ask questions handed to them 15 by their staff, then they get back the answer that the 16 staff hasn't predicted they'd see and then you don't 17 know what will happen. The difference here, of 18 course, is that the three of you, with all due respect 19 to the congressmen and senators, are substantially 20 more sophisticated about the substantive issues that 21 you're going to be addressing.
22 That said, it doesn't mean that you will 23 think in terms of the follow-up in the same way that 24 the parties would. The process by which a party can 25 then submit to you a question during the course of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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498 1 hearing is even more complex and even more restricted 2 but every one of those steps. The filing of the 3 questions in the first place and then the filing 4 during the hearing of an attempt to get you to do 5 follow-up questions is what is known in the business 6 as red tape. It's a lot of bureaucracy. It's a lot 7 of your spending your time and us spending our time 8 doing something that has no direct substantive payoff.
9 It's lawyering. It's not technical and what it means 10 is that it gets in the way of using the limited 11 resources available whether it's the of the parties or 12 of the Board to talk about legal standards rather than 13 to get to the merits. So that's number one.
14 Number two, when it comes to discovery 15 it's even more serious. The discovery provisions of 16 Section 3.36 leave an enormous amount of latitude to 17 the party that's making the production. Let me give 18 you a couple of examples. Section 3.36 says that a 19 party is required once a contention is admitted in a 20 hearing that has been convened to identify all of the 21 persons upon whose opinion they intend to rely for the 22 positions they're going to take. Let's just take some 23 of the examples in this case.
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499 1 occur in the event of an accident such that they can 2 confidently say that the NPSH calculations they've 3 done are reliable and then use containment over-4 pressure. However, that said, that's not based upon 5 the opinion of any one of their experts alone. Rather 6 their experts are relying upon the opinion of other 7 experts. In fact, if you take a look at the PUSAR in 8 this case, it's identified as a GE proprietary 9 document which means that GE had a major hand in 10 writing it and GE subcontractors had a major hand in 11 doing the underlying work. And some researchers 12 someplace under contract to one of the NRC's or DOE's 13 labs, did some of the basic research. All of those 14 are opinions that form the basis with the opinions 15 that are going to ultimately be offered here. I 16 promise you I will stake my reputation that when the 17 3.36 disclosures are made in this case, the applicant 18 will not disclosure to us every one of the people 19 whose opinions formed a basis for the opinions that 20 are being offered and frankly, I think it would be 21 crazy to expect that they would do that.
22 But that tells you that the 3.36 23 disclosure is not going to be complete in that regard.
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500 1 think is not relevant. You've just spent a day and a 2 half listening to us argue in response to your 3 questions and each other's charges and counter-charges 4 and we clearly have very different views about what we 5 think is relevant and what we think is not relevant.
6 So what I think is relevant is not what Entergy thinks 7 is relevant and vice versa.
8 So all the means is, is that kind of 9 discovery is not a substitute for real discovery. It 10 hasn't worked in the federal court system from which 11 it's taken. It doesn't work in this process. So 12 you're going to be pushed into a situation in which in 13 the course of asking questions yourselves. If you 14 were in a Subpart L format, you're going to hear a 15 witness start talking about information just as you 16 heard hear in this two days that no one disclosed 17 before.
18 JUDGE KARLIN: Mr. Roisman, I mean, 19 certainly discovery, cross examination, they 20 understand there are clear distinctions between G and 21 L and you're laying them out quite articulately. What 22 we need to understand is how you would ask or upon 23 what regulation or statute you would rely upon to try 24 to grant a G type proceeding or those rights, 25 discovery and cross examination.
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501 1 JUDGE RUBENSTEIN: What would you have the 2 Board rely on in order to make that determination?
3 MR. ROISMAN: Okay, all right. It's not 4 that this isn't something you should rely upon. You 5 are under a direction from the Commission to conduct 6 this process efficiently and so part of what I'm 7 saying to you is, you cannot run the complexity of 8 these issues through an L type hearing as efficiently 9 as you can run the very same issues through a G type 10 hearing.
11 JUDGE KARLIN: But didn't the Commission 12 in promulgating those regulations or these regulations 13 specifically eliminate complexity as being a criterion 14 or standard for distinguishing or granting a G? They 15 flatly eliminated that.
16 MR. ROISMAN: I'm not saying that 17 complexity alone is the reason for it. What I'm 18 saying is what they did say, what they gave you as 19 your over-arching marching order was and I quoted it 20 yesterday, was that this process should be efficient.
21 And so what I'm telling you is that because these 22 issues are complex, it will not be efficient. I'm not 23 saying the complexity alone would be a justification.
24 I'm saying that because complexity will make this less 25 efficient, that's one reason, but I will get -- and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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502 1 let me get to the statutory basis as well.
2 As you know, there is a disagreement 3 between us and the staff and the applicant over what 4 the regulation says. They point to statement of 5 considerations which say that in making determinations 6 about whether or not there should be an evidentiary 7 hearing, that you should only have an evidentiary 8 hearing, a so-called G type hearing, if you find both 9 that there's a material dispute of fact, and that 10 resolution of it depends upon the credibility of a 11 witness. You've got to have both of those things. If 12 you read the regulatory language, that's not what the 13 regulation says. Those two concepts are separated by 14 a comma.
15 JUDGE RUBENSTEIN: Can you point to 16 specifically what you're referring to in the 17 regulatory language?
18 MR. ROISMAN: Yes, if you go to -- go to 19 first of all to 2.309(g) and that says, "The request 20 petition must demonstrate by reference to the 21 contention and the bases provided on the specific 22 procedures in Subpart G of this part, that resolution 23 of the contention necessitates resolution of material 24 issues of fact which may be best determined through 25 the use of the identified procedures".
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503 1 Now, I've explained to you in the opening 2 statements why it would be best determined by use of 3 the Subpart G procedures and not the Subpart L 4 procedures. But on top of that when you then go to 5 Section 310, 2.310(d), it says, "In proceedings for 6 the grant", et cetera, et cetera, "there will be a 7 Subpart G hearing where the presiding officer by order 8 finds that resolution of the contention or contested 9 matter necessitates resolution of the issues of 10 material fact relating to the occurrence of a past 11 activity, where the credibility of an eyewitness may 12 reasonably be expected to be at issue, and/or issues 13 of motive or intent of the party or eyewitness 14 material to the resolution of the contested matter".
15 So I submit that those are separate. They cite to the 16 statement of considerations which admittedly don't put 17 the comma in and put the first two clauses together 18 and make them appear to be one clause.
19 And I submit that the NRC's resolved any 20 ambiguity that may be created by that inconsistency 21 which I don't think you need to get to the ambiguity 22 when the statutory or in this case regulatory language 23 is clear, by their filing in front of the First 24 Circuit in the case of CAN v. NRC, where they told 25 everybody, the told the First Circuit that the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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504 1 touchstone of deciding whether you get these 2 adjudicatory hearing rights is this one issue, the one 3 that they identify in G, what will be the best way to 4 determine the dispute.
5 JUDGE KARLIN: Are you suggesting -- are 6 you suggesting that we read 2.310(d), that it in fact, 7 identifies three situations where --
8 MR. ROISMAN: Correct.
9 JUDGE KARLIN: -- where we could grant or 10 you can grant one where it's past activity, two, where 11 it's credibility of an eyewitness and three where 12 there are motives or intent?
13 MR. ROISMAN: Yes.
14 JUDGE KARLIN: Past activity would swallow 15 just about every application that would come down the 16 pike then.
17 MR. ROISMAN: Well, I think it depends.
18 If it's in dispute --
19 JUDGE KARLIN: Okay, well, that's an 20 interesting reading but even if we get past that, are 21 you suggesting, you know, credibility, motive and 22 intent. I was expecting actually the New England 23 Coalition to focus on this more and help us with the 24 state type of issues but motive or intent or 25 credibility, even if we break those apart, motive, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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505 1 intent or credibility.
2 MR. ROISMAN: Right, we also, in our reply 3 went through and I know you've read this so I don't 4 want to take my time to repeat it, but through the 5 reply we identified several instances in which there 6 is evidence that the credibility in the sense of being 7 -- remember what a witness says when they take the 8 stand. They swear to tell the truth, the whole truth, 9 and nothing but the truth. The applicant's response 10 in this case is full of half truths and we identified 11 several of those; places where they said one thing, 12 which was technically true, only if you disregarded 13 another fact that they already knew about and didn't 14 disclose to you.
15 So you remember they criticized Mr.
16 Sherman for making a quite "unsupported assertion" 17 that there was a history of leakage with the isolation 18 valves, when they knew that there was a report and 19 yesterday you all in questioning the applicant even 20 got into that a little bit more. There was such a 21 history and Mr. Sherman had every basis to say what he 22 said. That's not the candor. That's a credibility.
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506 1 whether you're getting a true, full answer to the 2 question. And with all due respect to you, that'5 3 what people like Jon Block and I make our living at, 4 finding out what the person is hiding and that's why 5 allowing us to cross examine rather than allowing us 6 to submit questions to you which you all have to try 7 to cross examine on -- remember your rights to cross 8 examine aren't abolished by giving us rights.
9 JUDGE KARLIN: Well, I understand that 10 you're trying to make our lives easier and that we 11 have this responsibility in L proceedings, if an L 12 proceeding is appropriate, to conduct the examination 13 of the witnesses with some exceptions in our 14 discretion. But again, I'm trying to get into what 15 in the reg are you relying on, motive, intent, 16 credibility? We're dealing, as I see it, pretty much 17 with technical experts, experts who are testifying to 18 two different things and that is exactly, I think the 19 area where we don't really get into credibility. We 20 get into professional judgment of experts. They may 21 disagree.
22 MR. ROISMAN: Well, I guess it depends on 23 what you mean by credibility. My understanding of 24 what credibility means is, that the witness, when they 25 tell you they're going to tell you the whole story, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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507 1 will tell you about the warts and'not just the beauty 2 marks. And you've seen it here in this hearing 3 already. You're hearing about beauty marks and not 4 warts and that's a credibility question. I'm not 5 talking about somebody getting up here and telling you 6 that the plant is located in another state, you know, 7 a lie like that. I'm talking about the credibility 8 whether you can rely upon what you're hearing without 9 having to know more and that's credibility. I don't 10 think -- at least, I don't think motive is an issue 11 here. This isn't a question of some --
12 JUDGE KARLIN: All right, so it's on the 13 credibility.
14 MR. ROISMAN: I think there's plenty on 15 the credibility. I think there's also plenty on the 16 fact that past activities are at issue here, you know, 17 what standards are being applied, why were they being 18 applied, who applied them. A lot of the evidence that 19 we rely upon is based upon did the ACRS have the 20 opinion that Mr. Sherman believes they had and does 21 that help support his position?
22 The other thing that I think is 23 illustrative of this is the fact that if you take a 24 look at what happened here in these one and a half 25 days is the best evidence that you could have that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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508 1 there are material facts-in dispute that warrant using 2 cross examination. Let me give you an illustration or 3 two. Contentions one and two, one of the issues that 4 we had at issue was uncertainties exist that create a 5 basis, that's our basis, the existence of 6 uncertainties, identified by a number of specific 7 uncertainties which were the supporting evidence, we 8 submitted in both our petition and our reply.
9 They said we have a lot of conservatisms 10 and the conservatisms make up for all of those 11 uncertainties. We said the experts thought the 12 uncertainties were so high that you should not use 13 containment over-pressure. They said, ah, but we have 14 an RAI response and is showed the conservatism that we 15 used and you didn't attack them, but they didn't 16 disclose that those conservatisms that they were 17 talking about, which were conservatisms associated 18 with pressure and temperature, were already in place 19 when the experts who were relying upon said, "Don't 20 use containment over-pressure". So you have to track 21 that through all of those different steps before you 22 finally get to the truth and I'm not sure that even 23 now, assuming you had been looking at the merits, that 24 you're convinced that you've heard the whole story.
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509 1 earthquake issue. We said the earthquake analysis 2 today are more -- I'll take two minutes of my reply.
3 Earthquake analysis today are more sophisticated and 4 that the safe shut-down earthquake number for the PGA 5 should be higher. They said, "Oh, the NRC has 6 rejected the 2500 year return period", which is what 7 you're pointing to. And they quoted, and they cited 8 the ISFSI decision that was reached. What they didn't 9 tell you was that SECY 03-0118 the final rule on 10 geologic and seismological characteristics presiding 11 in design of dry cask independent spent fuel storage 12 facilities, which was the issue in the case they 13 cited, that NRC staff said the staff also believes 14 that the potential radiological consequences of a 15 seismic event at an ISFSI in dry cask or canisters are 16 substantially less than the potential consequences of 17 a similar event at an NPP.
18 This is an NPP. So they gave you half the 19 story and thought that that would be enough. Then 20 they pointed to the fact that they said, "Hey, we've 21 already evaluated this issue", and they pulled out for 22 the first time, page 10-17 of the PUSAR. What they 23 didn't tell you is that page 10-17 of the PUSAR is 24 part of a section of the PUSAR that deals with 25 probalistic risk assessment but the SSE is not to be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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510 1 done on a probalistic risk assessment.
2 Number two, they tell you in this document 3 but they didn't tell you yesterday that what they did 4 was a deterministic evaluation of the safe shutdown 5 earthquake. What they didn't tell you is that in 1997 6 the NRC amended its regulations to say we're not going 7 to use deterministic any more. We're going to use the 8 very procedure that our experts said should be used 9 for this plant now that we are in the new design basis 10 context of using containment over-pressure. So when 11 we go behind what they tell you to look at the whole 12 document, we get a different story.
13 I submit to you that you cannot do your 14 job, which is to get at as best you can the truth and 15 decide the truth by leaving this in the L process.
16 Let Mr. Block and myself do our jobs. Please assist 17 us. Your technical expertise has been tremendous.
18 Assist us by stepping in, raising your questions but 19 do what the Commission says, send this case into the 20 Subpart G where it will both be more efficient, will 21 get at these credibility problems, will allow us to 22 explore the factual disputes that existed on past 23 events, thank you.
24 JUDGE KARLIN: All right. Mr. Shadis, or 25 Mr. Block, I'm sorry.
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511 1 MR. BLOCK: I seem to be short of cord 2 here. Thank you. We agree with everything Mr.
3 Roisman said particular his interpretation of 4 2.310(d). I can't disagree as I have to confess to 5 being the attorney that briefed and argued CAN v. NRC 6 on behalf of Citizens Awareness Network. So my 7 reading of that is at parallel instance with Mr.
8 Roisman's. I didn't mention reservation of time and 9 what I want to do is just reserve the balance of the 10 time that's left for rebuttal.
11 We differ in our emphasis just slightly 12 from the state. Our concern is given the structure 13 that's available for making the G versus L 14 determination in the rule, I think it's important for 15 this panel to also look at what will best accommodate 16 the needs of ordinary citizens who are participants in 17 this proceeding and who face with extremely limited 18 resources the need to get on at least some kind of an 19 equal playing field with the applicant and the staff 20 and I'm afraid even the Department in obtaining 21 information. And I just want to say briefly, and this 22 is not the Department's fault but they've had access 23 to information, these supplements, that we haven't 24 had.
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512 1 applicant's attorney on the issue of supplements and 2 told, "Oh, the reason you're not getting them is 3 they're privileged", I spoke with Mr. Sherman who 4 assured me that there are redacted copies available of 5 all this information. And it's this kind of 6 gamesmanship that makes it necessary for Mr. Shadis at 7 the eleventh hour to turn to his board and say, "I 8 need help here". And you know, I'm not able to 9 provide the resources of a giant law firm in a 10 proceeding with the few experts we have, we need to be 11 able to rely on cross examination to achieve the 12 purpose that's stated here, to get at factual issues 13 of the past that are in dispute. I think any 14 reasonable reading of the two declarations and the 15 additional declaration furnished with Mr. Shadis' 16 contentions and his reply, raise issues, clear issues 17 that they licensee has shown by its behavior here in 18 trying to testify to this board, are in dispute and 19 these are past matters. They deal with the 20 availability of the information, whether the 21 information was there or not, the meaning of 22 calculations that were done, the adequacy of the 23 analysis that were done, all of this in the past 24 tense.
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513 L isn't an enforcement proceeding. This is about 2 whether the material they supplied is material that's adequate to support the application. And I think in 4 this regard, when we're confronted with this C disparity, that without the tools that are provided by 6 Subpart G, is it made an insurmountable difficulty for an intervenor to get on that playing field.
a JUDGE KARLIN: Well, let me stop you, if 9 I might there. I think one of the reasons behind the 10 rule is that this Board is composed of impartial and 1] experts in the field and we can ask questions and we 12 can conduct examinations and under -- even at L 13 proceedings you would submit plans and allow us to 14 conduct cross examination and I think this, in a 15 sense, is designed to be a help to a pro se who might 16 not have the power or the ability to have the 17 technical expertise. I mean, you all have that, I 18 guess. But you know, this is one of the rationales of 19 our cross examination.
20 Further, under appropriate circumstances, 21 it's within the discretion of the Board on a 22 particular issue to allow, you know, the attorneys to 23 conduct the examination, the cross examination. So I 24 think there was -- I'm not sure what your reasoning 25 is. This is designed to help pro se, not to hurt NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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. I
514 1 them, I think.
2 MR. BLOCK: Well, the thing is, I don't K> .
3 want to reargue my case, but if it was designed to 4 help pro se, they would have lowered the standard to 5 get into the proceeding to begin with. And the fact 6 that they didn't indicates that it was designed to 7 achieve what we believe is a different purpose, but we 8 won't go down that alley. I am not dissatisfied with 9 -- as Mr. Roisman is not, with the ability of this 10 Board to raise questions. I, as he, am capable of 11 conducting that examination and know from my study of 12 the material that it's only just begun, that there are 13 a lot of questions that I would like to ask of a 14 witness. I think, as I was indicating before, 15 credibility has been put in issue, but if I might --
16 JUDGE KARLIN: Well, can I ask on a 17 credibility and perhaps I should have asked this 18 before, maybe raising questions is the credibility of 19 the attorneys but what witness -- obviously there are 20 not witnesses here, but can you name me some 21 individual that we are saying there's a past event, 22 the credibility of that individual is problematic?
23 MR. BLOCK: Sure, Jay Thayer signed that 24 application and he signed it under oath.
25 JUDGE KARLIN: Right.
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515 1 MR. BLOCK: And I assume he's somebody 2 that can be called as a witness. We also have 3 material that's raised in the Gundersen application, 4 documents that should have been there that weren't, 5 that then appeared. You know, there's a pattern of 6 conduct that's shown in that declaration that's 7 questionable. The other thing that you get in Subpart 8 G is discovery procedures, the ability to conduct a 9 formal discovery. We're beginning with a proceeding 10 where material. wasn't placed in the public document 11 room where we could get at it. And we now know that 12 state had it, redacted copies have been available, but 13 it wasn't put there for us.
14 Now, I say to go into the proceeding at 15 the beginning with that on your shoulders is a very 16 interesting situation. I would hope the Board might 17 conclude from that, that we're not being dealt the 18 same cards that the other people have in their hand.
19 We're getting a few cards short each time and only 20 discovery orders are going to equalize that kind of 21 problem. You know, we begin with what we don't have 22 and it's that redacted material that could have been 23 provided but is being held back. You know, the staff 24 tell us just a few moments ago that they've conducted 25 a review and created a review matrix. We don't have NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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516 1 that.
2 We don't have any of their conclusions, 3 you know, and it would be nice to be able to have that 4 material available to use when we were framing 5 contentions, for instance, so that we could get into 6 the meat of some of these things. But these are the 7 kinds of things that the discovery process was 8 designed to allow you to do. You know, it isn't so 9 much a question of whether a person of a professional 10 and technical background would have reason to 11 prevaricate with the Board when they're a witness.
12 The issue is when you have people who are coming in 13 and it is less their professional credential that's on 14 the line than their employment, you know, they owe a 15 duty to their employer. And so when they testify, the 16 eyes are on them for what they're going to say.
17 This isn't an ordinary situation of the 18 peer review of some kind. You know, it's an 19 extraordinary situation and there are a lot of people 20 who are concerned in this extraordinary situation, as 21 I know the Board is aware. It's probably not every 22 day that a Board is treated to having you know, the 23 aide to a senator on the phone when you're having your 24 scheduling conference. Clearly, there's a lot of 25 attention here and without more formal proceedings, I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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517 1 think that it will become very difficult to structure 2 this in a way that allows people to get at the truth 3 and that's really what we all want to do here. We 4 want to get at the truth of whether this application 5 is something that is going, if approved, to adequately 6 protect the occupational public health and safety.
7 And in order to do that, we need to use 8 the engines that have been available to conduct 9 examination since the time of Edward the Confessor.
10 The engine of cross examination in the hands of a 11 skilled advocate is something that allows you to get 12 at the truth. The use of discovery as a tool to find 13 information that's not available, to bring that to the 14 Board's attention is another tool, and these have been 15 framed over the whole history of what we'd like to 16 call civilized conduct in order to arrive at a point 17 where hearings are conducted in a way that we do get 18 to the truth.
19 And I think I'll rest at this point and 20 take the balance in rebuttal when it comes. Thank 21 you.
22 JUDGE KARLIN: Questions. Okay. I think 23 we're with Entergy.
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518 1 do we decide what procedure to apply. But before I do 2 that I feel compelled to answer to two or three things 3 that Mr. Roisman and Mr. Block has said which meets 4 requirements. The first and perhaps in some ways the 5 most significant is Mr. Roisman is making the argument 6 that he wants this Board to second guess the 7 Commission's carefully laid out procedure for the 8 selecting procedure and go on what your view of what 9 the most efficient way to go about having hearings.
10 That is not at all in the regulation and, in fact, I 11 would say that the Commission made a decision as to 12 what the most efficient way to conduct hearings was 13 and the decision was that except in two narrow sets of 14 circumstances, the procedure for amendments is Subpart 15 L. So I think that telling that you can find 16 something more efficient is something that you 17 actually shouldn't be able even to think about.
18 More significantly, I think that both Mr.
19 Roisman and Mr. Block are demeaning you by questioning 20 the ability of this Board to have -- to handle 21 testimony, being handed cross examination questions, 22 not being able to frame from where you sit, 23 appropriate probing questions to whatever witness come 24 before you. I don't know what they're talking about 25 but the part that says let Mr. Roisman and Mr. Block NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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519 1 help you and assumes that you need help and I'm not 2 willing to concede the particularly given the last two 3 days.
4 JUDGE KARLIN: Well, let me ask a point on 5 your first point. Certainly, we are not in a 6 position, it's not within our power to overturn 7 regulations promulgated. We have to implement them 8 and try to comply with them, but with regard to the 9 state's argument under the Atomic Energy Act 274(1),
10 they argue, it seems to me that there's a statutory 11 provision that grants them the right to interrogate 12 witnesses. And this seems to be inconsistent with --
13 or they argue it's inconsistent with some of the 14 regulations. How do we grapple with that?
15 MR. TRAVIESO-DIAZ: Well, Mr. Chairman, 16 that was not originally Mr. Roisman's argument, but I 17 will answer it.
18 JUDGE KARLIN: Well, I think it's in the 19 brief, he didn't argue it orally.
20 MR. TRAVIESO-DIAZ: All right. And we 21 will answer it, but I will tell you very briefly what 22 the answer is. Section 274 of the Atomic Energy Act 23 was enacted in '59. 1962, three years later, the 24 Commission passed the predecessor of the current 25 2.3150 which was 2.751 -- 150 and --
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520 1 JUDGE KARLIN: Would you repeat that?
2 What's the cite?
3 MR. TRAVIESO-DIAZ: Yes, until January it 4 was 10 CFR Section 2.7150 which is identical to 5 315(c).
6 JUDGE KARLIN: 715, all right.
7 MR. TRAVIESO-DIAZ: For the purposes of 8 what we're talking about. Now, the Commission thought 9 later on in similar consideration that in doing so, in 10 fashioning 2.7150 they were fully implementing the 11 statutory mandate of Section 274 of the Act and I will 12 cite to you the -- it is 69 Federal Register 2188 and 13 this is in 1977. So the Commission's view, which I 14 believe is a binding view, is that 2.7150 and 2.3510 15 fully implement and give the state all the rights that 16 the Atomic Energy Act gives them, and I think that's 17 the end of the story.
18 JUDGE KARLIN: Does that reference 274(1) 19 of the Atomic Energy Act?
20 MR. TRAVIESO-DIAZ: Yes, expressly.
21 JUDGE KARLIN: And what's the date on 22 that, what's the date? 69 Federal Register 2188?
23 MR. TRAVIESO-DIAZ: It is 69 Federal 24 Register -- well, wait a second, let me just see if I 25 can make sure I don't give you the wrong citation.
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521 1 Okay, here is the citation. May 2nd, 1977, 42 Federal 2 Register, 22169/22169.
3 JUDGE KARLIN: 42 Federal Register --
4 MR. TRAVIESO-DIAZ: 42.
5 JUDGE KARLIN: And then what's the rest of 6 it, the page number?
7 MR. TRAVIESO-DIAZ: 42 Federal Register 8 22168, the discussion is on page 22169, 1977.
9 JUDGE KARLIN: All right, thank you.
10 MR. TRAVIESO-DIAZ: Okay, so the reality 11 is that the combination of the right to seek a hearing 12 under 2.309(b) (2) and the right under 2.3150 fully 13 implements for state all the rights that Atomic Energy 14 Act has but again, let me just finish what I was 15 trying to get to to follow my thought of mine.
16 They raise a number of concerns or issues 17 or arguments about complexity --
18 JUDGE KARLIN: Well, let me ask again, on 19 2.315(c), the regulation, participation by a person 20 not a party, this is the state issue, and it talks in 21 there, "The representative of a state shall be 22 permitted to introduce evidence, interrogate 23 witnesses, and advise the Commission without requiring 24 the representative to take a position. Now, that's 25 what the statute says.
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522 1 MR. TRAVIESO-DIAZ: Yes.
2 JUDGE KARLIN: The regulation says, "The 3 representative of the state shall be permitted to 4 introduce evidence, interrogate witness, where cross 5 examination by the parties is permitted, and advise 6 the Commission". So I think they point out that the 7 regulations is inconsistent with the statute by adding 8 that language. What's your response?
9 MR. TRAVIESO-DIAZ: Well, my response is 10 two-fold. First, the Commission, and I think it says 11 someplace in the statement of considerations for the 12 rules, the Commission has a right to decide and the 13 cases uphold that right what kind of hearing 14 procedures or hearing rights is going to be given to 15 a particular party. It's not automatic that because 16 you're a party you have the right to cross examine.
17 And in fact, the whole foundation of this new set of 18 rules is that there is a right to cross examination 19 only under the second presence of ****.
20 JUDGE KARLIN: But doesn't the statute 21 override a regulation?
22 MR. TRAVIESO-DIAZ: Well, and even the 23 statute doesn't override it because the statute says 24 that they don't have unlimited opportunity -- in fact 25 it says, reasonable opportunity. I think the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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523 1 Commission would decide what's reasonable, so I don't 2 think that's -- I believe that, in fact, they have two 3 avenues, either to seek to be a party as they have 4 done, or to become an interested state and do what an 5 interested state can do on the 2.315(c). And if there 6 is no cross examination, they don't get it any more 7 than anybody else.
8 I think I -- I'm sorry.
9 JUDGE RUBENSTEIN: I have a question. If 10 Part L permits such cross examination as is necessary 11 to insure development of an adequate record for 12 decision, and this is equivalent to the APA provision 13 such as may be required for a full and true disclosure 14 of facts. So if one examines this type of hearing 15 that we're in, and say we had a contention that was 16 entered, how do you visualize in the rebuttal time and 17 Mr. Roisman, I would be interested in his answer also, 18 how do you visualize the Board defining the limits to 19 the cross examination? In other words, we would say 20 the cross examination is -- we have discretion to 21 limit the cross exam under Subpart L.
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524 1 these issues within the contention or the whole 2 contention or what kind of an argument should we have 3 on that?
4 MR. TRAVIESO-DIAZ: Well, the party 5 wishing to do cross examination which is said to be 6 exceptional -- exceptional circumstances, would have 7 to prove to you that this issue is so complex or so 8 far-ranging that the Board may have difficulty getting 9 to all the parts on each specific without some 10 assistance and that we are prepared to give you 11 assistance than otherwise you can get, that's 12 essentially what they're saying. Now, they will have 13 to be able to prove to you what part of a contention 14 that applies to, why that is the case, why the briefs, 15 the written testimony and you are able to question the 16 experts, doesn't do it. So I think it's very limited 17 and you have the right and I suspect you will 18 exercise, to grant the right to cross examine but 19 limit it as to what you can get into or for how long.
20 JUDGE RUBENSTEIN: So you visualize the 21 process as evolving from the discussion during a 22 Subpart L hearing between the parties as to what is 23 too complex an issue to be given only by the Board's 24 questioning.
25 MR. TRAVIESO-DIAZ: Let me --
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525 1 JUDGE RUBENSTEIN: Do you think it would 2 evolve from there or do you think the Board would read 3 this and define it?
4 MR. TRAVIESO-DIAZ: May I?
5 JUDGE RUBENSTEIN: Yes.
6 JUDGE KARLIN: Go ahead, you should have 7 an answer to that.
8 MR. TRAVIESO-DIAZ: I'm sorry?
9 JUDGE KARLIN: You should have a pretty 10 crisp answer to that.
11 MR. TRAVIESO-DIAZ: Yes, the reality is 12 the Board knows how -- let me tell you how it works, 13 because I have done it. In a similar proceeding in 14 Subpart M, what happens is the applicant and people 15 who oppose the application raise issues and file 16 testimony on those issues and they file a lot of 17 testimony. They file cross examination plans and 18 detailed questions for the Board to ask the parties, 19 the witnesses.
20 The Board goes ahead. During the hearing, 21 if for some reason there are more questions you want 22 the Board to ask, you make a motion that they Board 23 accept additional questions that you're proposing to 24 them. You can further make the motion that, if that's 25 the one we're talking about, that if it's too NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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526 1 difficult to do it that way and you have to explain 2 why, the Board may allow you limited cross examination 3 on the narrowly defined issues. That's the way it 4 works.
5 JUDGE KARLIN: Let me ask a question on 6 that as well. I mean, in this case, I think the 7 relevant rule is 2.1204(b) (3) which lays out when 8 cross examination would be allowed to the parties and 9 it's limited certainly but assuming this would be an 10 L proceeding, do you now concede -- let's say and the 11 Board thought it was of value to use the excellent 12 counsel we have here, I mean we can't -- I will take 13 note that Mr. Roisman and Mr. Silberg both litigated 14 the Calvert Cliffs case of NEPA in 1971, one of the 15 fundamental cases in administrative law, excellent 16 counsel and if we were to rely upon their assistance 17 in conducting some of the cross examination, don't you 18 think that would be within our discretion under this 19 rule?
20 MR. TRAVIESO-DIAZ: Yeah, the rule in fact 21 says that you can make a motion at the hearing, not 22 now. This is not where hearing rules apply.
23 JUDGE KARLIN: Right.
24 MR. TRAVIESO-DIAZ: It's presumed that you 25 have a Subpart L proceeding and that is a decision, by NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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527 1 the way that they can brief before the first session 2 and what the staff was saying there and what we're 3 talking about here. That was talking about precisely 4 what happened in Subpart L hearings. At the hearing, 5 you can make a motion to the Board saying this is an 6 area, at topic as to which is so complex and we have 7 it so well developed based on whatever, that we feel 8 like it's more efficient to let us do some questioning 9 and the Board will look at the factors that are set I
10 here in 104 -- 2.1204(b), (1), (2), and (3) and then 11 determine whether, in fact, it's going to allow it and 12 to what extent and there are a number of factors.
13 Mr. Chairman, given where we are, I'll try 14 to make this second point very, very short. There is is a lot of intimation from Mr. Roisman and Mr. Block 16 about credibility and lack of candor. If I had the 17 time, I'd talk to you about that for 20 minutes 18 because this, I think, I take personal exception to 19 that. I question the lawyers to be more candid, but 20 more importantly you put the point well across.
21 Suppose that the lawyers are not candid, that doesn't 22 say anything about the witnesses and those are the 23 ones we focus on.
24 JUDGE KARLIN: Isn't it difficult for us 25 at this stage, the early stage on contentions, to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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528 1 evaluate, you know, whether the credibility of a 2 witness is going to be an issue? I mean, we're just 3 dealing with the admissibility of contentions?
4 MR. TRAVIESO-DIAZ: Exactly, and let me 5 tell you what the criterion is. And you have to make 6 -- with respect to making an issue out of credibility, 7 there has to be the credibility of a witness relating 8 to a question that's been propounded and the 9 credibility not only has to be a question of his 10 credibility, but it cannot be historical, something 11 that happened three years ago, maybe discovered in a 12 state proceeding. It has to be something that he may 13 be accused of doing here and now that effects his 14 credibility as a witness here. And the citation for 15 that is Dominion Nuclear Connecticut CLI 301.24, 54 16 NRC 346,356.
17 JUDGE KARLIN: That's in your brief, isn't 18 it?
19 MR. TRAVIESO-DIAZ: Yes. Issues of 20 credibility have no place, I believe as a point of 21 deciding what protections should be admitted. Now, if 22 I may try to answer your first question, how do you at 23 selecting procedures. Actually the Commission gives 24 you a very simple -- the section that deals with 25 selection procedures is 310 which is entitled NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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529 1 "Selection of Procedures". 2-310(a)(6), that, "For 2 all licensing actions, including amendments, the 3 presumed procedure unless exceptions apply, is Subpart 4 L". So we're stuck on the proposition that you have 5 to prove that Subpart L doesn't apply.
6 With respect to specifically license 7 amendments that procedure, or the section or 8 regulation that deals with the exceptions is 310(b) 9 and provides to exceptions. Now, I'll go back to 1.0 those in a second but I want to try to clarify a 1.1 confusion that has been raised by Mr. Roisman, the 1.2 effect of 309(g).
13 Section 2.309 (g), if in the section of the 14 case that the intervenor has to make to have to have 15 its exceptions, and what the section says that you, as 16 an intervenor are trying to get the exceptions in 17 Subpart B applies, this is the case you have to make.
18 You must demonstrate by reference to a contention and 19 the basis provided that the resolution of the 20 contention necessitates the solution of material 21 issues of fact which may be best determined through 22 the use of identified Subpart G procedures. This 23 section indeed, does not enlarge the category of 24 situations in which you have a Subpart G hearing.
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530 1 to prove to show that one of those two exceptions 2 apply. It's very clear. In the case that the person 3 says, like Mr. Roisman, that we should have reference 4 to a specific Subpart proceedings, why do we need the 5 positions and what part of the contention would they 6 apply to and why do they meet one of the two rules in 7 (3)(b) that are exceptions? That's the way it works.
8 Now, when we're talking about what those 9 two portions of (b)(1) and (b)(2) are, I'm not saying 10 that -- the Commission explains very well and very 11 clearly as to what they have in mind and I'd like to 12 refer to you to a very extended discussion in 69 13 Federal Register 2222. In there they say, what do we 14 mean by this exception? The first type of exception 15 is a situation in which for example a worker alleges 16 that a supervisor directed him to do an illegal act 17 and the supervisor denies it. So the first 18 circumstance is a situation where we want to find out 19 what happened and what happened as a matter of fact is 20 material to a solution relation.
21 Contentions don't have that context even 22 -- it isn't clear whether my supervisor asked me to do 23 something wrong, that's the first exception. The 24 second exception is one that goes as to what the 25 motive for doing something is. For example, I'm NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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531 1 reading from the Federal Register:d "A contention 2 alleging deliberate and knowing actions to violate NRC 3 requirements by applicant's representative, 4 necessarily requires a solution of the motive or 5 intent of the applicant's representative". These two 6 exceptions, very simply, don't apply to the cases that 7 we have. In fact, cases in which misconduct is being 8 alleged and the credibility -- well, what actually 9 happened and the credibility of a witness is at stake.
10 I am confident and in fact I am sure that you agree 11 with me, that the contentions that we have raised here 12 as to seismic design or as to whether you should have 13 containment over-pressure has nothing to do with 14 misconduct or who said that to whom or when.
15 MR. WACHTER: Two minutes.
16 MR. TRAVIESO-DIAZ: All right, let me see 17 what else. Let me see. Oh, yes, yes.
18 JUDGE KARLIN: On the motive and intent, 19 isn't an applicant always motivated to want to see its 20 application granted? Is that what they're talking 21 about?
22 MR. TRAVIESO-DIAZ: I don't believe so 23 because in fact, the motive for why you want to get 24 more power, we discussed yesterday, has nothing to do 25 with what we're talking about here, at least as far as NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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532 1 safety. The motive goes as to why an act was done 2 one way or another, a specific act by somebody.
3 JUDGE KARLIN: If we use the sort of 4 general proposition that an applicant is always 5 motivated to have its application approved, in other 6 words, swallow the --
7 MR. TRAVIESO-DIAZ: Absolutely, you took 8 the words right out of my mouth, exception will follow 9 the rule entirely.
10 JUDGE KARLIN: So what's the standard that 11 we judge by, something less than that?
12 MR. TRAVIESO-DIAZ: The standard is, if in 13 fact, whether the crucial issue in resolving a 14 contention is what the motive of the person was in 15 doing a specific act. I read your -- you know, 16 somebody filed a misleading statement with NRC. Did 17 they do it deliberately or was it negligent, that is 18 the kind of thing that they want to get asked in which 19 you may need to have probing cross examination, 20 depositions or whatever because it goes not only to 21 technical facts, but it goes to getting into a 22 person's mind which is not what we do here.
23 JUDGE RUBENSTEIN: Do you think this would 24 apply more to enforcement actions in materials area?
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533 1 to that or an enforcement actions.
2 JUDGE RUBENSTEIN: Or operator licensing 3 issues.
4 MR. TRAVIESO-DIAZ: Operator misconduct, 5 where an operator was asleep on the job and what 6 happened, that's the kind of thing that you may want 7 to have, you have a hearing.
8 MR. WACHTER: Time.
9 MR. TRAVIESO-DIAZ: My time is up?
10 JUDGE KARLIN: All right, thank you.
11 Staff, Ms. Higgins?
12 MS. HIGGINS: All right, I'm going to 13 start out discussing the Subpart G discussion and then 14 go onto the Atomic Energy Act discussion. I'll start 15 our by saying neither the Department nor the coalition 16 have put forth any issue or motive or intent are at 17 issue nor have they demonstrated a past activity where 18 the credibility of an eyewitness is at issue as is 19 required by the regulations.
20 The Department states that because 21 Entergy' s witnesses worked with attorneys in preparing 22 their testimony that the Department cannot assume such 23 witnesses will be completely truthful. They also 24 stated in their brief that they cannot rely ultimately 25 on engineering judgment without adequate cross NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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534 1 examination. Again, as we stated with other things, 2 we feel that this cannot be an adequate justification 3 for a Subpart G hearing. If that were the case, then 4 again, the exception would swallow the rule as almost 5 all cases before the Board and all appeals to the 6 Commission rely on engineering judgment and also 7 involve witnesses who are assisted by attorneys in 8 preparing their testimony.
9 JUDGE KARLIN: Well, but aren't they 10 raising questions of credibility or motive. They've 11 thrown up or identified situations where it appears 12 the NRC challenged the forthcomingness of some of the 13 Entergy's people. It's in their briefs, somewhere, 14 the NEC's briefs, that the Department of Public 15 Services of Vermont has fined or sanctioned them 16 $51,000.00 for some deliberate misinformation or 17 failure to provide discovery on something. Don't 18 those provide questions on credibility?
19 MS. HIGGINS: I'm not -- the first example 20 that you gave did you say that the NRC had problems 21 with Entergy coming forth with information?
22 JUDGE KARLIN: Yes, yes, I believe there 23 was an allegation of that. I can't put my hands on it 24 right now.
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535 1 Department.
2 JUDGE KARLIN: Pardon?
3 MR. BLOCK: Vermont Public Service 4 Department.
5 JUDGE KARLIN: Vermont Public Service 6 Department, not NRC, I'm sorry. Okay, well, there was 7 a $51,000.00 penalty or sanction imposed, not penalty, 8 for discovery costs. But my point is, they assert 9 they have raised a number of credibility issues. How 10 do you respond to that? Dismiss it?
11 MS. HIGGINS: Right, no, I agree with what 12 Entergy's counsel is saying, that that is not -- those 13 descriptions of motive, that definition, does not 14 comply with how the Commission described how they 15 would define credibility or motive in the statements 16 of consideration, and that's 69 Federal Register 2222.
17 JUDGE KARLIN: The preamble, the statement 18 of consideration gives some examples but those are not 19 exhaustive.
20 MS. HIGGINS: Right. Well, I would say 21 that if there were problems with discovery, for 22 example in this case there are regulations that deal 23 with that and that they offer a plethora of options, 24 for example, in a Subpart L proceeding if there were 25 issues with a counsel or licensee coming forth with NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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- v. . .
536 1 documentation, the presiding officer can impose 2 sanctions, dismiss contentions, dismiss adjudications 3 or use the discovery provisions in a Subpart -- under 4 Subpart G.
5 JUDGE RUBENSTEIN: Is this comparable to 6 when a licensee or applicant has an executive sign a 7 document to the NRC that he's liable, legally liable 8 to action?
9 MS. HIGGINS: I'm not sure I understand 10 that question. I'm sorry.
11 JUDGE RUBENSTEIN: An executive of a 12 utility, if he signs off a transmittal letter, ha a 13 certain liability as a criminal --
14 MS. HIGGINS: Okay, if I understand your 15 question correctly, which I hope I do now, the 16 executive motive would not be at issue in that 17 situation and the basis for the application would be 18 found in the application itself. Does that answer 19 your question?
20 JUDGE RUBENSTEIN: Yes.
21 MS. HIGGINS: Okay.
22 JUDGE KARLIN: Anything else?
23 MS. HIGGINS: Yes, I would also just --
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537 1 L procedures. I would just like to make that part 2 clear.
3 JUDGE KARLIN: Let's talk about the 4 discovery. What opportunities are there for discovery 5 under L? I mean, there's mandatory disclosure.
6 MS. HIGGINS: Right, there are --
7 JUDGE KARLIN: Do we have discretion or is 8 there some opportunity for discovery in there?
9 JUDGE BARATTA: Yeah, for example, the 10 case that was brought up with respect to the existence 11 of redacted copies of GE proprietary, would that be 12 subject to a discovery dispute?
13 MS. HIGGINS: Those would be in the 14 hearing file automatically.
15 JUDGE BARATTA: But would the complete 16 document be -- would it be possible to generate a 17 protective agreement and get the complete document or 18 not?
19 MS. HIGGINS: Yes. NEC would be able to 20 execute such an agreement.
21 JUDGE KARLIN: But beyond the basic 22 disclosures that are required at the outset under 23 Subpart L, there's -- I don't know that I understand 24 that there's any further discovery available and I 25 thought it was prohibited.
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538 1 MS. HIGGINS: Correct, there is not.
2 However, I was just saying that if there was any sort 3 of allegation or complaint on a party's behalf that 4 something was not being provided that needed to be 5 provided, that there -- that there are other options 6 for the presiding officer and you can see that in 7 Section 2.336(c).
8 JUDGE KARLIN: So inadequacy of the 9 initial disclosure, the mandatory disclosure, could be 10 subject to remedies for the Board.
11 MS. HIGGINS: Right, exactly.
12 JUDGE RUBENSTEIN: That's 10 CFR 2.336?
13 MS. HIGGINS: Correct, and I'm just 14 checking, it's (e) not (c). I misread my handwriting, 15 sorry. It's (e). And I'd also like to note that 16 there is a continuing obligation to update the hearing 17 file as the case continues and the disclosures.
18 JUDGE KARLIN: Yes, does the staff believe 19 that we would -- if this Board thought it would be 20 appropriate and valuable and it met the criteria, 21 1204 (d), given the expertise, I think, of some of the 22 counsel here and the long distinguished careers 23 they've had that we would be within our discretion to 24 ask them to assist us with some of the cross 25 examination?
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539 1 MS. HIGGINS: I'm sorry, I --
2 JUDGE KARLIN: Do you concur that that 1 k 3 would be within our discretion under the circumstances 4 of this case --
5 MS. HIGGINS: Yes, it would be.
6 JUDGE KARLIN: -- not within the abstract.
7 MS. HIGGINS: Right.
8 JUDGE KARLIN: Okay. Now, do you want to 9 address the statutory, 274(1), I'm interested in that 10 one?
11 MS. HIGGINS: Sure.
12 JUDGE RUBENSTEIN: That'S 10 CFR 2.336?
13 MS. HIGGINS: Correct. And I'm just 14 checking. I think it's -- it's E, not C, I misread my 15 handwriting, sorry. It's E.
16 And I'd also like to note that there is a 17 continuing obligation to update the hearing file as 18 the case continues and the disclosures.
19 JUDGE KARLIN: Yes. Does the staff 20 believe that we would -- if this Board thought it 21 would be appropriate and valuable and it met the 22 criteria of 1204(d), that given the expertise, I 23 think, of some of the counsel here in the long 24 distinguished careers they've had, that it would be 25 within our discretion to ask them to assist us with NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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540 1 some of the cross examination?
2 MS. HIGGINS: What's your -- I'm sorry?
3 JUDGE KARLIN: Do you concur that that 4 would be within our discretion --
5 MS. HIGGINS: Yes.
6 JUDGE KARLIN: -- under the circumstances 7 of this case --
8 MS. HIGGINS: Yes, it would be.
9 JUDGE KARLIN: -- not just in the 10 abstract?
11 MS. HIGGINS: Right.
12 JUDGE KARLIN: Okay. Now we ought to 13 address the statutory 274(L). I'm interested in that 14 one.
15 MS. HIGGINS: Sure. I guess I would start 16 out by summarizing that we feel that the Commission 17 has interpreted the statute 274 (L) in the recently 18 revised 10 CFR Section 2.315(c), which has been cited 19 here numerous times, which states in pertinent part, 20 the presiding officer will afford an interested state, 21 which has not been admitted as a party under Section 22 2.309, a reasonable opportunity to participate in a 23 hearing.
24 And in answer to Judge Baratta's question 25 yesterday regarding --
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541 1 JUDGE KARLIN: That's the regulatory 2 provision you're citing, right?
3 MS. HIGGINS: Right. And we think that's 4 --
5 JUDGE KARLIN: Is there in anything in the 6 promulgation of that that specifically - - where the 7 Commission talks about 274 (L)? Maybe I ' m missing it.
8 I mean is that what you just said? But when these new 9 Part 2 rules were promulgated, you know, I don't think 10 they talked about 274 (L), did they?
11 MS. HIGGINS: No, they didn't. This is 12 the way the reg --
13 JUDGE KARLIN: It would have been helpful 14 if they did.
15 (Laughter.)
16 MS. HIGGINS: 1/11 pass that along.
17 JUDGE KARLIN: And I know we're not --
18 this is not the CAN litigation in the First Circuit 19 nor should it be. But we have to grapple with this 20 statutory provision that seems - -
21 MS. HIGGINS: That is the way - -
22 JUDGE KARLIN: - - to give them the right 23 to interrogate witnesses.
24 MS. HIGGINS: Right.
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542 1 reasonable but certainly in any court proceeding or 2 any Board proceeding, we regulate the reasonableness.
3 It can't go on for hours. It can't be duplicative.
4 It can't be repetitive. It can't be harassing.
5 But can the Commission simply exclude an 6 entire category and say that's just out regardless of 7 what the statute says? And do we have the power to do 8 anything about it?
9 MS. HIGGINS: Well, I would say that 10 Section 2.315 (c) in its reference to cross examination 11 is the Commission's reasonable interpretation of what 12 the Atomic Energy Act states.
13 JUDGE KARLIN: I saw the discussion in the 14 Part 2 , you know, Statement of Considerations and they 15 talked about the Administrative Procedure Act ingreat 16 detail and the evolution of the Commission's position 17 on that - -
18 MS. HIGGINS: Yes.
19 JUDGE KARLIN: -- and different -- but I 20 never - - no one ever seemed to pick up on 2 7 4 (L) hence 21 the relatively novel issue, although I believe it is 22 briefed in the CAN litigation in some of the amicus 23 briefs .
24 MS. HIGGINS: The CAN litigation went more 25 to whether or not specifically Subpart L satisfied the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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543 1 APA requirements.
2 JUDGE KARLIN: Right. But there amicus 3 briefs filed that address the 274(L) issues.
4 MS. HIGGINS: Okay. I'm not aware of 5 those.
6 JUDGE KARLIN: Okay.
7 JUDGE BARATTA: You're about ready to - -
8 JUDGE KARLIN: Go ahead, I'm sorry.
9 JUDGE BARATTA: -- you're about ready to 10 answer my question from yesterday.
11 (Laughter.)
12 MS. HIGGINS: We would say that's - - as we 13 quoted before, Section 2.315(c) it says that the 14 representatives shall be permitted to interrogate 15 witnesses wherever cross examination by the parties is 16 permitted. And we would contend that that is a 17 reasonable interpretation of Atomic Energy Act 274 (L).
18 And what they would mean by that, in that 19 case, is that under -- it depends on which hearing 20 track the proceeding was continued under. If it were 21 a Subpart G proceeding - - for - - I mean for which 22 contention, excuse me. So if the contention was under 23 a Subpart G hearing, the State would be afforded all 24 rights that are afforded under Subpart G for cross 25 examination.
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544 1 If the contention were under Subpart L, 2 the party would be afforded all the rights that are 3 afforded under the Subpart L proceeding.
4 Does that answer your question?
5 JUDGE BARATTA: That seems to be the 6 question as to whether or not that is consistent with 7 the Atomic Energy Act though.
8 MS. HIGGINS: Well, we don't see a 9 conflict between that. We think it is a reasonable 10 interpretation of the rights provided in the Atomic 11 Energy Act.
12 JUDGE BARATTA: Okay, thanks.
13 MS. HIGGINS: And we think that's the 14 Commission's interpretation of the statute. And 15 should be afforded such deference.
16 JUDGE BARATTA: Thank you.
17 MR. WACHTER: Two minutes.
18 MS. HIGGINS: I guess just one last thing 19 that I would like to reiterate is just that what I was 20 just now elucidating is that I just wanted to make 21 sure it is clear that each contention must be referred 22 individually to a Subpart G hearing.
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545 1 Subpart G.
2 JUDGE KARLIN: So if some contentions have 3 issues of credibility, then they go to an L or go to 4 a G --
S MS. HIGGINS: G, right.
6 JUDGE KARLIN: -- and the others go to an 7
8 MS. HIGGINS: Correct.
9 JUDGE KARLIN: And we've got to clone 10 ourselves into two Boards --
11 MS. HIGGINS: Two parallel --
12 JUDGE KARLIN: -- and have two separate --
13 MS. HIGGINS: -- proceedings --
14 JUDGE KARLIN: -- hearings?
15 MS. HIGGINS: -- yes.
16 JUDGE KARLIN: Where is that written?
17 MS. HIGGINS: Well, in Section 2.310(d),
18 it refers specifically to the contentions. It's also 19 at 69 Federal Register 2222, which --
20 JUDGE RUBENSTEIN: Do that one a little 21 slower, 59 --
22 MS. HIGGINS: Oh, sorry, 69 Federal 23 Register 2222, which states that if the presiding 24 officer has determined that one or more admitted 25 contentions do not meet the criteria in 2.310(d),
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546 1 those contentions will be resolved by the presiding 2 officer in a separate Subpart L hearing.
3 JUDGE BARATTA: That's your Federal 4 Register cite?
5 MS. HIGGINS: Yes, sorry.
6 JUDGE BARATTA: Who wrote these 7 regulations anyway?
8 (Laughter.)
9 JUDGE KARLIN: All right. Gee, thanks.
10 Anything else?
11 MS. HIGGINS: No, that's all I have.
12 JUDGE KARLIN: Do we have reserved time, 13 Mr. Roisman?
14 MR. ROISMAN: What have we got?
15 MR. WACHTER: Three minutes.
16 MR. ROISMAN: Good, okay.
17 Let me start with 274 (L), I think that 18 what Mr. Diaz has quoted to you from the Statement of 19 Considerations of the initial adoption of 2.715(c) is 20 very telling on this issue because if you look at the 21 Statement of Considerations that went along with the 22 regulations that we're now working under and you look 23 at the Commission's brief in front of the First 24 Circuit, you will see the Commission has had an 25 evolving history.
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547.
1 At the time they wrote 2.715 (c), when they 2 said that the State gets the right to cross examine in 3 every instance where that right is available, the 4 right was available in every amendment and licensing 5 proceeding that was going on in front of the NRC.
6 When they adopted it in toto in 2.315(c) 7 without comment, the best reading of what they were 8 doing is that they were incorporating that initial 9 Statement of Considerations, which meant that the 10 State would have the same right to cross examine that 11 it would have had at the time the 2.715(c) was 12 adopted.
13 Which would mean that even assuming the 14 State's rights are limited to contentions that are 15 admitted, even assuming that that -- which I don't 16 think passes statutory muster but I understand the 17 limitations on the Board here, it would mean that we 18 would have the right to conduct cross examination if 19 we would have had that right for those contentions 20 back at the time the 2.715(c) was adopted.
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548 1 under Part G -- to get cross examination even though 2 you are entitled to it.
3 And it means we submit cross examination 4 plans. If you thought that areas of cross examination 5 that we propose to carry out were not appropriate, or 6 were redundant, or missed the point, you would then 7 say I'm going to let you do it on these two areas but 8 not on the third area or the fourth area.
9 So you maintain significant control over 10 the cross examination rights. The difference is we 11 don't have the same kind of burden of proof that we 12 would have under Subpart L and the presumptions aren't 13 running against us. But you still have substantial 14 control.
15 Third, the question was how can we 16 establish that the witnesses that we haven't heard are 17 going to be less than candid in order to meet the 18 criteria that is -- what I call the second criteria 19 under 310 (d). The answer to that is that the language 20 says may reasonably be expected.
21 I submit that if the lawyers who are 22 working for this company can't be relied upon to be 23 completely candid with you and give you all the 24 information that is relevant to the question that they 25 are purporting to answer, then you can reasonably NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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549 1 expect that the people who are working as full-time 2 employees for these companies will be equally less 3 than candid.
4 And I want to emphasize here, I'm not 5 talking about what we call in law malum in se. I'm 6 not talking about bad motivated people. And I'm not 7 talking about liars.
8 I'm talking about a natural tendency that 9 every one of us would engage in if we could and 10 probably we do. When your wife asks you, "Where were 11 you today?", you don't always tell her all the 12 details. "I was at work." You don't necessary say, 13 "and I spent two hours talking to my secretary over 14 lunch." That doesn't mean that you are a liar.
15 But if we needed to know the answer to 16 that, cross examination would be the way we'd find it 17 out.
18 JUDGE KARLIN: Before your time expires, 19 I do need to understand an issue we talked about 20 yesterday, which is the State's right to participate 21 cross State, cross party. Does it make any 22 difference? Should we worry about that issue? Or is 23 it just a way to get to cross examination?
24 MR. ROISMAN: No, it makes a great deal of 25 difference but candidly it depends upon what you do.
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550 1 If all of the contentions or all of the -- you know, 2 enough of the contentions that the State feels that 3 we're going to get a fair opportunity to make our case 4 under the 309 process are admitted, and if the Board 5 grants us the opportunity to do the amount of 6 discovery or cross examination that we think we need 7 to do, then we don't need to be a 274(L) State.
8 But we hold that in reserve. And we use 9 that, and we've used it here to say to the Board there 10 is a good reason for you, to the extent that you need 11 a reason to be inclined to give the State the rights 12 it is asking for, because we've got another way that 13 we could go --
14 JUDGE KARLIN: Well, it seems to me 15 there's three ways you can argue -- you're arguing for 16 the right to cross examination -- 274(L) of the 17 statute, two, under the regulations, interpret them in 18 a way that a Subpart G hearing should be provided, and 19 three is under an L proceeding, there is the 20 discretionary opportunity or there is some 21 opportunity, albeit limited, for the Board to turn to 22 experienced counsel and to assist them in their cross 23 examination.
24 Now you are arguing all three of those, 25 I'm sure.
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551 1 MR. ROISMAN: Yes, yes, absolutely, 2 absolutely. And our ability to operate under 2.315(c) 3 doesn't arise under that until after you've ruled on 4 whether contentions are admitted.
5 JUDGE KARLIN: All right.
6 MR. ROISMAN: So there's nothing we could 7 do at this point.
8 JUDGE KARLIN: All right. Thank you.
9 MR. WACHTER: Five minutes.
10 JUDGE KARLIN: You have five minutes.
11 MR. BLOCK: Thank you. I don't think I'm 12 going to use all five. It depends on whether there 13 are some questions.
14 I want to begin with a few observations.
15 One is that we have a licensee here who doesn't want 16 any proceeding, doesn't want any of the contentions 17 admitted. If you're going to have a proceeding, it 18 should be Subpart L. And I find that a bit 19 disingenuous.
20 I also wonder about the staff's insistence 21 22 JUDGE KARLIN: Why? I don't understand 23 that. I mean because if the licensee doesn't want a 24 hearing and if you're going to have one, they want the 25 least burdensome type of hearing.
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552 1 MR. BLOCK: Why waste time --
2 JUDGE KARLIN: Isn't that consistent?
3 MR. BLOCK: -- arguing about the hearing 4 if you don 't think there should be a hearing at all, 5 you know?
6 JUDGE KARLIN: Yes.
7 MR. BLOCK: It just seems to me it's a 8 waste --
9 JUDGE KARLIN: Well, because we asked them 10 to address that issue.
11 MR. BLOCK: Yes.
12 (Laughter.)
13 MR. BLOCK: Well, that brings me to the 14 question of insult. And I just wanted to point out to 15 the applicant that when I want to insult somebody, I 16 know how to do it. And if I do, I know that you'll 17 know.
18 But I think that we thank the Board, and 19 we do thank the Board. We feel that the Board has 20 indicated its ability to deal with the issues as I 21 said and as Mr. Roisman said. And I don't think 22 there's any intention here to denigrate the Board's 23 ability to conduct the hearing in saying that we 24 believe that what is appropriate here is a more formal 25 hearing.
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553 1 And we believe it because, as Mr. Shadis 2 pointed out when he was discussing his QA/QC 3 contention, you know, when Mr. Thayer was asked to 4 produce discovery, he produced zero, nothing, nada, 5 even though he signed each one of those documents as 6 being material, correct, and complete.
7 And so when the NRC staff then says well, 8 the executive's motive isn't an issue, I agree with 9 Mr. Roisman. It's not a question of, you know, 10 whether there is some kind of malicious intent. It's 11 a question of whether people who are paid to do a job 12 are going to try the best they can to do what their 13 employer wants to have done. And are not always going 14 to be as forthcoming as they might.
15 And so --
16 JUDGE KARLIN: But doesn't that exception 17 swallow the entire rule and make every proceeding a G 18 then?
19 MR. BLOCK: No, because there are going to 20 be proceedings that have less at stake than is at 21 stake in this proceeding. There are going to be a lot 22 of license amendment proceedings where they are much 23 more minor, where, you know, the informal proceedings 24 would apply.
25 But here, this is something where there is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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554 1 a lot at stake. This is one of a dozen plants getting 2 EPU. And, you know, this review process appears to be 3 faltering.
4 JUDGE KARLIN: Well, I think if you went 5 to, you know, hearings, the interveners -- I think you 6 would very rarely find someone who would say there is 7 not a lot at stake here. I mean most of them think --
8 MR. BLOCK: Well, 9 JUDGE KARLIN: -- there are important 10 issues at stake.
11 And so they'd all say just what you are 12 saying. And where would we be? I mean that would 13 swallow the rule.
14 MR. BLOCK: I'll give you an example, I 15 mean there are materials proceedings where they've 16 been using Subpart L for quite a while. And they 17 manage to find a way to deal with the evidence and the 18 people who are in them manage to deal with it.
19 JUDGE KARLIN: Yes.
20 MR. BLOCK: You don't have the range of 21 issues that are here in many of those proceedings.
22 They are much narrower. And they are more naturally 23 suited to that.
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555 1 licensing basis being on the table, you know, you've 2 got one particular issue, I think that in a situation 3 like that, you're going to have less questions of 4 credibility.
5 Here, when the proposal on the table is 6 the difference between generating, you know, 20 7 percent more profits or not, you're going to have 8 people who have a lot more at stake when they sit down 9 in the witness stand to offer the whole truth and 10 nothing but the truth.
11 Anyway, I wanted to close with just a 12 sense, leaving the Board with a sense that -- if I 13 might use some of my time -- okay, right -- Mr.
14 Roisman brings to my attention --
15 MR. WACHTER: Two minutes.
16 MR. BLOCK: Okay, Mr. Roisman brought to 17 my attention that in the NRC's brief, which you have 18 through their answer, was it --
19 MR. ROISMAN: Your reply.
20 MR. BLOCK: -- your reply at page 46, 21 there is a piece of information worth noting about the 22 Commission's belief that cross examination does not 23 appear to be either necessary or useful in 24 circumstances where the dispute falls on the 25 interpretation or inferences arising from otherwise NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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556 1 undisputed facts.
2 But the Commission goes on to say that the 3 presiding officer is the one best able to assess the 4 record as to the hearing's progress and to determine 5 whether cross examination is needed to help develop an 6 adequate record.
7 And that's a very helpful segue because 8 what I wanted to say to close is that New England 9 Coalition has a long and proud history of 10 participation in such hearings and being able to help 11 develop adequate records.
12 They have two experts here with almost 70 13 years of nuclear experience, extensive history of 14 interaction with -- over Vermont Yankee, that is in 15 the issuances that can be looked at, the Nuclear 16 Regulatory Commission issuances.
17 They have an in-house special advisor.
18 And he tells me that they have an attorney with a 19 record of experience on nuclear law. I wish it was as 20 great as Mr. Roisman's or Mr. Silberg's. But, you 21 know, I'll do what I can.
22 I think that if you give us the right kind 23 of hearing structure and you are inclined to grant a 24 number of these significant contentions, that we will 1..
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557 1 Commission in making the right determination in this 2 case.
3 Thank you very much.
4 JUDGE KARLIN: Thank you.
5 I think we've completed the proceedings.
6 I appreciate the effort of counsel to move forward 7 diligently. And I think we've covered a lot of 8 ground.
9 You all have answered the questions 10 candidly and fairly and very professionally from all 11 of you. And I hope the public has had a chance to 12 understand a little better what we're trying to do 13 here in some of the issues.
14 It's pretty technical. It's pretty legal.
15 And we're going to go back down to Rockville, Maryland 16 and read the transcript, go over the information in 17 the briefs again, confer, and try -- we will issue a 18 decision to the best of our ability resolving these 19 and deciding whether any of the contentions are 20 admissible and, if so, what kind of hearing would be 21 granted, an evidentiary one with cross examination or 22 not.
23 So, again, thank you all. We'll close for 24 the day and hope you all have good flights or trips 25 home.
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558 1 Thank-you.
2 (Whereupon, the above-entitled pre-kJ(~ ~ . .
3 conference hearing was concluded at 1:22 p.m.)
4 5
6 7
8 9
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CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission in the matter of:
Name of Proceeding: 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.
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,: ': . ' ' . . ' '. I