ML072000457
| ML072000457 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 07/17/2007 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 50-400-LR, ASLBP 07-855-02-LR-BDO1, NRC-1664, RAS 13879 | |
| Download: ML072000457 (188) | |
Text
17,q 5 3gf #7 Official Transcript of Proceedings 91 NUCLEAR REGULATORY COMMISSION
Title:
Shearon Harris Nuclear Power Plant Docket Number:
Location:
50-400-LR; ASLBP No.: 07-855-02-LR-BDO1 Raleigh, North Carolina DOCKETED USNRC Date:
Tuesday, July 17, 2007 July 19, 2007 (9:30am)
OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF Work Order No.:
NRC-1664 Pages 1-186 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433
,ep I oe~-
- -5 6ý-Vo 3,L 56 COy-
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES OF AMERICA MJCLEARREGULATORY COMMISSION ATOMIC SAFETY AND. LICENSING BOARD (ASLB)
+OLRM ORAL ARGUMENT In the Matter of:
Docket No.
50-400-LR CAROLINA POWER & LIGHT COMPANY (Shearon Harris Nuclear Power
. ALSBP No.
Plant, Unit 1) 07-855-02-LR-BD01 Tuesday July 17, 2007 1707 Hillsborough Street, Raleigh, North Carolina The above-entitled matter came on for hearing, pursuant to notice, at 10:00 a.m.
BEFORE:
ANN MARSHALL YOUNG PETER S.
LAM ALICE MIGNEREY Chair Administrative Judge Administrative Judge NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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APPEARANCES:
,2 On Behalf of the Licensee:
3' JOHN H. O'NEILL, JR.,
ESQ 4-DAVID R.
- LEWIS, ESQ 5
'Of:
Pillsbury Winthrop Shaw Pittman, LLP 6
2300 N Street, NW 7
washington, D.C.
20037 8
(202) 663-8000 9
(202) 663-8007 fax 10 11 On.Behalf of the Nuclear Regulatory Commission:
12 DAVID E. ROTH, ESQ.
13 SUSAN L. UTTAL 14' Of:
Office of the General Counsel 15 Mail Stop: 0-15 D21 16 Washington, D.C. 20555-0001 17 (3.01) 415-2749 18 (301) 415-3725 fax 19 20 On Behalf of the Petitioner:
21 JOHN D.
- RUNKLE, ESQ.
22 Of:
John D.
Runkle 23 P.O. Box 3793 24 Chapel Hill, N.C.
27515 25 (919) 942-0600 phone and fax NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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P-R-O-C-E-E-D-I-N-G-S 2
(10:04 a.m.
3 CHAIR YOUNG:
Good morning.
My name is 4
Ann Marshall Young.
I'm the Chair and lawyer member 5
of the Licensing Board.
And I'm going to ask Judge 6
Lam and Judge Mignerey to introduce themselves, and 7
then i'll ask the parties to do the same..
8 JUDGE MIGNEREY:
I'm Alice Mignerey, and 9
I am one of the technical judges, and my background is 10 nuclear chemistry, radio chemistry, and basically 11 nuclear physics.
12 JUDGE LAM:
Peter Lam, Nuclear Engineer.
.13 My specialty is in reactor safety and risk assessment.
14 CHAIR YOUNG:
Let's start with Mr. Lewis.
15 And if you could introduce. yourselves and all the 16 people that you have with you, and then we'll go to 17 the Staff, and then to the Petitioners.
18 MR.
O'NEILL:
Mr.
Lewis has deferred to 19 his elder, so I'm John O'Neill, and David Lewis and I 20 represent Progress Energy.
With us from Progress 21 Energy today are Bob Kitchen, who's the Manager of 22 License Renewal and New Plant Licensing.
Next to him 23 is Roger Stewart, who is the Supervisor of License 24 Renewal.
Next is Tony
- Pilo, who is the Fleet 25 Coordinator of Emergency Preparedness; John Caves is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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the Manager of Technical Services for the Harris 2
Plant; and way in the back out the door is Julie Hans, 3
who is the Site Communications Coordinator for the 4
Harris Plant.
5 CHAIR YOUNG:
Thank you.
- And, Court 6
- Reporter, if you need to interrupt us at any time to 7
get spellings, please feel free.
All right?.
8 Ms.
- Uttal, why don't you introduce the 9
Staff people.
10 (Off mic comment.)
11 MR.
ROTH:
I'm David Roth with the Staff.
12 With us today, we have the Project Manager for Safety, 13 and we also have a Project Manager for Environmental 14
- Review, Sam Fernandez.
15 CHAIR YOUNG:
And this is Ms.
Uttal with 16 you.
17 MR.
ROTH:
This is.Ms. Uttal.
18 CHAIR YOUNG:
All right.
And Mr. Runkle?
19 MR.
RUNKLE:
Good morning.
My name is 20 John Runkle.
I'm representing the Petitioners, the 21 North Carolina Waste Awareness and Reduction Network, 22 generally referred to as NC WARN, and the Nuclear 23 Information and Resource Service, NIRS.
And with me 24 at counsel table is Jim Warren, who is the Executive 25 Director of NC WARN.
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- 1.
CHAIR YOUNG:
- Well, it's nice to see you 2
all this morning.
As I indicated in our'last order 3
setting out certain questions, we're going to try to.
4 move things along as quickly as possible on things 5
that
-well, we're going to try.
to apportion the time 6
to those things where we have the most questions.
And 7
our thought was that we would begin, by hearing 8
argument on standing, and then the environmental 9
contentions with the argument on Environmental 10 Contentions I and II together, since the issues of the 11 aviation attacks is involved in both of those.- Then 12 hear brief argument on'the backfit issue.
Do all that 13 this morning, and then set aside the afternoon to hear 14 argument on the Technical Contention I
on fire 15 protection issues.
That's the one that we have the 16 most questions on, and to sort of apportion our time 17 most effectively, we thought that that would be a good 1 8 way to proceed.
Does any party have any objection to 19 proceeding in that manner?
20 All right.
Then on standing, I think the 21 main objection appears to be that the member groups 22 did not authorize the organizations to represent them, 23 and I think we can deal with this fairly quickly.
In 24 the reply, Mr.
Runkle indicated that if that was a 25 requirement to state that specifically, even though NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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the affidavits had been provided to the organizations' 2
counsel, that he could do that at the oral argument.
3 So if we could start with Mr.
- Runkle, if you could 4
just address that, and then we could hear from the 5
Staff and. the Applicant on that issue.
We ll try to 6
get through this fairly quickly.
7 MR.
RUNKLE:
- Well, the objection-is
- 8.
whether the word "authorized" is in the affidavit, as 9
opposed to whether the affiants7 authorized the 10 organizations to go ahead and act in their behalf.
11 And if that's a codepleading word, if we need to have 12 authorization, that they say we authorize these 13 organizations to represent our interests in front of 14 this board, we can do that.
We haven't done it.
We 15 don't feel that that's a necessary part of standing.
16 You have standing, and until somebody questions it, 17 you don't have to show that standing.
18 Now, certainly they authorized us to act 19 in their behalf.
They signed the affidavits, and it 20 was a
clear understanding that we had with the 21 affiants why they were doing it.
They were our 22 members.
We asked them for help.
They said we need 23 you to show that you're
- within, certainly, a
24 geographical distance from the plant that would show 25 your effect.
The affiants themselves, several are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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handicapped or have family members that-are, and are 2
concerned about being evacuated, certainly would meet 3
all the other requirements.
And if that's the problem 4
with the standing, is that specifically in their 5
affidavits they did not use the word "authorization",
6 well, then we.can I mean, that doesn't seem to be 7
a problem.
They authorized us to --
8 CHAIR YOUNG:
Why don't you, if you would 9
like to do that; why don't you could you submit 10 that by the end of the week?
11 MR.
RUNKLE:
Certainly.
12 CHAIR YOUNG:
All right.
13 MR.
RUNKLE:
That would be no problem.
We 14 could go down and certainly get an amended affidavit 15 saying they authorize us to act in their behalf.
16 CHAIR YOUNG:
All right.
17 MR.
RUNKLE:
There's no question.
18 CHAIR YOUNG:
All right.
And then we'd 19 like to hear from the Staff and the Applicant.
And I 20 guess the main question that we would have for you is, 21 one, was not the authorization pretty implicit in the 22 affidavits, in the fact that the affidavits were 23 provided to the petitioner's counsel.
And two, if 24 it's not implicit, is this not something of the nature 25 that could be cured?
We can start with the Staff if NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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you like.
Mr.
Roth.
2 MR.
ROTH:
- Well, on the second question 3
- first, we do think it.'s something in the nature,that 4
can be cured.
I. don't think anyone objects to 5
providing that authorization.
Now with regards to the 6
implicitness, as we put in our written answer, we look 7
to see if they have the-word "license renewal",
do 8
they have agent management issue, is there anything 9
that would show for the record for the future that 10 these people were authorizing this action for this 11 license renewal, and we didn't see it.
I mean, if 12 they want to cure it, they can go ahead, and we won't 13 object to that.
14 CHAIR YOUNG:
All right.
Mr. O'Neill.
15 MR.
O'NEILL:
The Commission, on June 2 8th 16-issued a decision in.the Consumers Energy Palisades 17 license transfer that reiterated its views that this 18 was not simply something that could be implicit.
It 19 had to be stated clearly.
Quoting from page 3 of the 20 slip opinion, "Petitioner's latest assertions here are 21 not supported by affidavits, or other forms of 22 authorization by the members who purportedly live 23 close to the Palisades Power and either Petitioner to 24 represent their interest.
We have explained this 25 authorization requirement in our case
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recently in CLI-07-18, in the same case.
This 2
longstanding requirement precludes Petitioners from 3
persuasively claiming they could not have reasonably 4
anticipated the need to submit evidence of 5
authorization, or that CLI-07-18 erred in citing this 6
omission as a reason why Petitioners had not shown 7
proximity-based standing."
8 And in CLI-07-18 the Commission stated, 9
"They must demonstrate that the member has, preferably 10 by affidavit, authorized the organization to represent 11 him or her, and to request a hearing on his or her 12-behalf."
13 CHAIR YOUNG:
What's the cite for the one 14 you're reading from?
CLI?
15 MR.
O'NEILL:
The first one is CLI-07-22 16 on slip opinion 3.
And the second one was in CLI 17 18 slip opinion at 89.
18 CHAIR YOUNG:
Okay.
19 MR.
O'NEILL:
- Now, yes, you have broad 20 discretion to allow the intervener to cure that, but 21 1 agree with the Staff that the cure is not simply the 22 authorization, but also the affidavit must allege a 23 particularized injury that is fairly traceable to the 24 challenged action, and is likely to be redressed by a 25 favorable decision.
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In this case sorry.
2 CHAIR YOUNG:
Let me just interrupt you 3
there.
Doesn't the proximity presumption take care of 4
all that?
5 MR.
O'NEILL:.
It doesn't to the extent 6
that the only issue they have raised is emergency 7
planning, which is not in this proceeding, so it is S8 not a 9
CHAIR YOUNG:
- Well, as to standing, the 10 proximity presumption is a replacement for having to 11 show the injury, redressability, and the third part of 12 that.
13 MR.
O'NEILL:
I agree that the standing 14 for individuals has certainly been given with 15 proximity within 50 miles.
Whether the organization, 16
- however, has a particularized injury that can be 17 resolved by this proceeding, where the only issue 18 raised by the individuals authorizing that 19 organization is emergency
- planning, which is not 20 within the scope of this proceeding, I would suggest 21 is not going to give the organization standing.
22 CHAIR YOUNG:
Even representational 23 standing?
24 MR. O'NEILL:
Representational, but the 25 organization still has to show that as an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1 organization, that it's going to be harmed, and that 2
the individuals that claims the organization, should 3
represent its
- interest, has to represent something 4
that's within the scope of this proceeding.
.5 JUDGE LAM:
Mr.
O'Neill, without 6
addressing the merits of your argument, do you object 7
to allowing the Petitioner to remedy their affidavit?
8 MR. O'NEILL:
I do not believe that I'm in 9
a position to object to the -Board using its broad 10 discretion, so we certainly would not object to it.
11 JUDGE LAM:
Thank you.
12 MR.
O'NEILL:
You have the discretion to 13 do that.
But we also believe that the affidavit has 14 to dot all the Is, cross all the Ts, and meet all the 15 requirements.
16 JUDGE LAM:
That's a separate matter.
17 CHAIR YOUNG:
Could we ask the Staff just 18 to provide your viewpoint on the requirement to show 19 an injury, in addition to having a member show that 20 they're within the 50-mile radius, in order to 21 establish standing?
22 MR.
ROTH:
I believe, Your Honor, that 23 it's our past practice that the 50-mile radius, not 24 necessarily 50 mile, but the proximity presumption --
25 CHAIR YOUNG:
Right.
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12 MR.
ROTH:
is sufficient for license 1
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 renewal.
CHAIR YOUNG:
Okay.
Anything-further on standing?
JUDGE LAM:
Mr.
- Runkle, may I interrupt?
The question to.the Staff.
Mr.
Roth, did I hear you correctly, the proximity presumption, in your estimation is sufficient for the particularized injury, in fact?
MR.
ROTH:
Yes, Your Honor.
JUDGE LAM:
Thank you.
MR.
RUNKLE:
Just looking at the declarations, one of Judy Hogan, "I'm concerned about Shearon Harris because of fire safety, and airplanes flying near the plant.
The evacuation plans are not
- good, and the people in the community do not know them.
We cannot hear the warning sirens in our house.
The evacuation plan has never been practiced.
If an accident happens, I expect to be stuck in traffic and die."
Now she's concerned about Shearon Harris because of fire safety and airplanes.
I think it's more than just implied that you're concerned -
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attacks.
2
- Again, I don't want to be put in the 3
position that we're getting into some kind of code.
4-If you tell me that I need to have line and verse of 5
what they need to say in an affidavit; yes, they've 6
authorized us to represent them.
They're concerned 7
about accidents.
They're also concerned about if 8
there's an accident, getting out of there.
9 CHAIR YOUNG:
If you want to submit 10 anything in the nature of affidavits setting out 11 authorization to cure that defect, you're free to.
If 12 you could get that to us by Friday, electronically.
13 MR.
RUNKLE:
We'll have to see,.based on 14 people's schedule.
I think that most of the 15 affidavits will be
- around, since they're limited 16 income, and I don't think they're going on any lengthy 17 vacations.
18 CHAIR YOUNG:
If there's any problem, let 19 us know.
20 MR.
RUNKLE:
Thank you.
21 CHAIR YOUNG:
But if you'd like to do 22 that, either submit them by Friday, or just let us 23 know when youcan do that within the next week or two.
24 MR.
RUNKLE:
Certainly.
Thank you.
25 CHAIR YOUNG:
Okay?
All right.
Then if NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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there's nothing further on standing, let's move on to 2
Environmental Contentions I and II.
And then either 3
as a part of that, or immediately after, the backfit 4
issue.
- 5.
And I guess, Mr. Runkle, I want to ask our 6
main questions here to you; and that is,
- one, the 7
precedential effect of the' Commission's decision, 8
which I indicate is in the nature of an Appellate 9
Court decision, by analogy, in the Oyster Creek 10
- decision, CLI-07-8, and this license renewal 11 proceeding, which is more in the nature of a trial 12 court proceeding.
And whether you're alleging that 13 there are distinguishing factors in this case.
14 And then, two, the precedential effect of 15 the U.S. Supreme Court's denial of cert.
I think you 16 have a bit of a burden to overcome on that score based 17 on the precedent that would bind us.
Certainly, if 18 the Supreme Court had said clearly in a decision that.
19 this applies nationwide, and that parties in these 20
- cases, moreover, have the right to raise these in, 21 adjudicatory proceedings, then we would be bound by 22 the Supreme Court.
But these cases that I've cited 23 all pretty much say that a denial of cert doesn't 24 carry with it any statement on the merits of the case, 25 one way or the other.
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MR.
RUNKLE:
Yes.
I mean, we can start 2
with the cases you cite on-the denial of certiori.
I 3
think they go back to the Singleton case.
There's a 4
common thread in there, but they all pretty much say 5
the same thing.. A-denial of cert by the Supreme Court 6
is not a ruling on the merits of the case, one way or 7
the other.
Then it has no they're not agreeing 8
with the Ninth Circuit case, they're not disagreeing 9
with the Ninth Circuit case.
But what I think that 10 the precedential effect is, is that each time the 11 matter comes before a trial
- court, or the Nuclear 12 Regulatory Commission, that they need to address the 13 same issues that were presented in the Ninth Circuit 14 case, the San Luis Obispo Mother's for Peace case, to 15 looking at those issues why aviation attacks, whether 16 they're terrorist related or some kind of other 17 purpose, or other reasons that somebody might want run 18 an airplane into a nuclear power plant.
19 I think you need to fully address those 20 same issues that have arised in that case.
And I 21 think that's the precedential value.
You're certainly 22 the Supreme Court's decision by denying the cert is 23 not telling you one thing or the other.
And it's not 24 telling the Commission,
- itself, one thing or the 25 other.
What it is doing is in line with the Ninth NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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Circuit case, and any case that comes up, I think the 2
precedential value is that you and the Commission on 3
the review of your decision has to go through the same 4
kind of analysis, and make a determination in case-by-5 case situations that you do not need to, or the 6
appl'icant does not need to address aviation attacks.
7 CHAIR YOUNG:
- Well, let me ask you two 8
questions here.
- First, in the Oyster Creek decision, 9
the Commission said, I
think they even went more 10 broadly than referring to terrorist attacks, to any 11 malevolent acts, that they're not admissible issues 12 for contentions in license renewal proceedings.
And 13
- second, I believe the Ninth Circuit in its decision 14 also said that the Commission can choose how it 15 decides to address an issue, which might be through 16 adjudication,-
and might be otherwise.
So the 17 situation that the Board finds itself in is that there 18 is precedent from the Commission, along with precedent 19 language in the Ninth Circuit decision which would 20 seem to support the Commission's determination to 21 handle this otherwise than in adjudication 22 proceedings.
And we would be bound by that Commission 23 precedent in that context, wouldn't we?
How would you 24 argue that we wouldn't be?
25 MR.
RUNKLE:
Well, it's apparent that the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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Commission has not resolved this issue in any manner.
2 We're going back to, as we cite in the initial 3
- petition, the Argonne study back in
'78, and a series 4
of studies throughout the 80s and 90s that showed that 5
the nuclear power plants cannot withstand.an aviation 6
attack under any conditions, so we're talking about 20 7
years of no action of plants that have been unsafe 8
from aviation attacks.
9 CHAIR YOUNG:
But I'm going to be 10 interrupting people today, I
think we all
- are, so 11 excuse me.
But what the Commission has said is that 12 these issues are not cannot be the basis for an 13 admissible contention in a proceeding like this, so 14 that even though you might argue to the Commission in 15 some other context, for example, that they should be 16 considered, just as they're being required to consider 17 them in a context pretty much of their choosing, as I 18 understood the Ninth Circuit; that they're not 19 admissible, they're not the sort of issue that would 20 be the basis for an admissible contention.
And I 21 think the Oyster Creek decision would seem to bind us 22 in this case, so rather than go into the merits of why 23 the issue is important, and why it should be 24 considered in some way, or in some manner, how would 25 we fall outside the -precedential effect of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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Commission's order in CLI-07-08 in the Oyster Creek 2
case?
3 MR.
RUNKLE:
Okay.
Looking at that, I
4 think I recite that in our reply as the Amergen Energy 5
case, but it's a 2000 Oyster Creek decision.
I think 6
that our position is that you need to address this on 7
a case-by-case, looking at whether the conditions at 8
the Shearon Harris plant, based on everything that's 9
happened since 1978, whether they can withstand that 10
- attack, and whether they can provide a
reasonable 11 assurance that in an extended license period, that 12 they will go ahead and be able to address a severe 13 impact from an-aviation attack.
14 CHAIR YOUNG:
Can you point me to what in 15 the Commission's decision would support you on that in 16 the Oyster Creek case?
17 MR.
RUNKLE:
Well 18 CHAIR YOUNG:
You urge us to reconsider 19 the scope of the decision.
20 MR.
RUNKLE:
Yes.
21 CHAIR YOUNG:
But the decision is in a
22 license renewal case which is outside the Ninth 23 Circuit, and I'm not seeing how we are any different 24 from the Licensing Board in the Oyster Creek case.
25 And the Commission has said that these issues are not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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appropriate for contentions that would be admissible 2
in the license renewal'case.
And I'm not hearing how 3
you're distinguishing that.
4 MR.
RUNKLE:
I understand your position.
5 I
understand the position of the Staff and.. the 6
Applicant on it.
I mean, our opinion is it's clear-in 7
the brief, and we think that the Commission acted 8
improperly in that.
And that you, even as a Trial 9
Board, you may feel yourself bound to it, but you need 10 to address the substantive issues behind the 11 contention; otherwise, what you're allowing is the 12 last 20 years of non-compliance to
- stand, no 13 consideration in the initial licensing, looking at the 14 next 20 years where the license is impacting, and 20 15 years after that.
16 Now I'm not asking you as this Board to 17 review the policy as it relates to this issue, as it 18 relates to all the nuclear power plants in the 19 country, but at the Shearon Harris Power Plant, the 20 only that's in front of us, you need to address those 21 issues.
22 CHAIR YOUNG:
But let me ask let's 23 think of an analogy here.
If a trial court has a case 24 that's pretty much identical, in so far as the legal 25 issues are involved, as those in a prior case in which NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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a Court of Appeals has ruled, whatever the trial court 2
may think about that Appellate Court decision, unless 3
there's something, some higher Appellate authority 4
that would say that the trial court should follow the
- 5.
higher authority, then the*Appellate authority that's 6
there governs the trial court.
Right?
7 MR.
RUNKLE:
Certainly.
8 CHAIR YOUNG:
And that's sort of the 9
situation we're in
- here, aren't we?
10 MR.
RUNKLE:
But the way that the 11 Commission responded to the Ninth Circuit case was to 12 say we're not going to do anything about it, and so if 13 that sets your precedent, you need to rule that way, 14 and then we can take it to the Commission and ask them 15 to reconsider their decision, and we can take it to 16 the Fourth Circuit.
17 CHAIR YOUNG:
Okay.
18 MR.
RUNKLE:
And it seems going back 19 throughout our arguments, we've made the argument that 20 there needs to be a reasonable assurance that the 21 plant will operate safely.
And we think that's 22 inherent in the Atomic Energy Act, we think that's 23 inherent in the relicensing looking at the NUREGS, 24 that you have to assure as you issue, as the NRC 25 issues the license, extends it into the year 2047, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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that there's a reasonable assurance that it will meet 2
fire protection rules, that it will meet aviation 3
protection, that the emergency response is adequate.
4 And we don't see that by ignoring the issue, as the 5
Commission-has, there's any reasonable assurance that 6
the 'Shearon Harris plant will minimize,
- mitigate, 7
eliminate the impact from an aviation attack.
8 CHAIR YOUNG:
All right.
So your real 9
beef here is with the Commission's order, and you want 10 to raise that on appeal, and you want to make your 11 record here on that.
12 MR.
RUNKLE:
I don't know if it's our real 13
- beef, but I think that we would urge this Board to 14 look at the merits of the issue, and get into the 15 factual differences that we may have with the Staff 16 and the Applicant on whether the Shearon Harris plant 17 can safely, or sort of mitigate the impacts from the 18 aviation attack.
19 CHAIR YOUNG:
Okay.
Just quickly, and I 20 think Judge Lam also has a question, but quickly for 21 me; if you could just wrap-up solely on the issue of, 22 do you see any distinguishing factors about this case 23 that would make it different from the Oyster Creek 24 case; and, therefore, permit us to distinguish our 25 situation from that described by the Commission in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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I Oyster Creek case?
2 MR. RUNKLE:
And that was also in 2006.
3 I don't see any substantive difference.in the time 4,
period between 2006 and --
5 CHAIR YOUNG:
It's 2007, actually.
6 MR.
RUNKLE:
We-don't see any difference 7
at the time, the terrorist attack or aviation attack 8
would have the same impact.
Certainly, that issue was 9
raised at the initial licensing at Harris.
I'm not 10 sure if it was raised at the Oyster Creek.
I think it 11 was summarily dismissed back then, but that Was 20 12 years ago.
I think that the difference is, if there 13 is
- any, is that the Applicant and the Shearon Harris 14 plant has known about it.
I have no idea whether 15 Amergen Energy at Oyster Creek knew anything about the 16 possibilities of an aviation attack.
That certainly 17 might be a matter of fact.
Whether this Applicant is 18 aware that they cannot withstand that kind of attack 19
- now, they can't withstand it for the rest of their 20 licensing, and the license extension, those are matter 21 of facts, I think after even fundamental discovery, we 22 should be able. to get to.
23 CHAIR YOUNG:
Judge Lam.
24 JUDGE LAM:
Mr. Runkle, I have a couple of 25 questions for you.
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MR.
RUNKLE:
Certainly.
2 JUDGE LAM:
The first one is, your basic 3
reading of Oyster Creek, CLI-07-08, is that you are 4
basically agreeing with what my reading is, which is, 5
the Commission had clearly spoken outside of the Ninth 6
circuit territory, any licensing board shall not 7
consider terrorist attack.
I think
-that 8
understanding, based on what you just
- said, I think 9
you have that understanding.
But what you're urging 10 us to do is, perhaps, saying you disagree with that 11 conclusion of the Commission.
Is that a correct 12 interpretation of what I just heard from you?
13 MR.
RUNKLE:
Yes.
To carry out your 14 responsibility in relicensing, we would urge you to 15 examine the facts behind those contentions that deal 16 with aviation attacks at the Shearon Harris. plant.
17 JUDGE LAM:
Okay.
The second question is, 18 in the
- future, assuming this case is closed' in 19 whichever fashion it
- would, in the future, if there's 20 a change in the Supreme Court review, or if there is 21 a change in Commission policy of following the Ninth 22 Circuit, not only in the Ninth Circuit territory, how 23 would you litigate your client's case on terrorist 24 attack after this case is closed?
25 MR.
RUNKLE:
Well, assuming that we would NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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24.
1 lose.,
2 JUDGE LAM:
Well 3
MR.
RUNKLE:
The assumption -is that we 4
would lose on the
-at.
this Board level on 'this 5
issue.
6 JUDGE LAM:
I hate to say that, but 7
assuming that 8
MR.
RUNKLE:
Assuming.
9 JUDGE LAM:
is the, case, how would you 10 protect your client's interest?
Let us say a year ii from now, two years from now, the high court had
.12 another decision,- the Commission had another 13 MR.
RUNKLE:
- Well, what is what would
.14 bemore likely is that we would take the issue to the 15 Commission, and have them to reconsider your decision 16 on the issues.
There are other kind of things, we 17 could go to Congressional.
But from a litigation 18 point of view, if we took it to the Fourth Circuit, 19 we're convinced, that the Fourth Circuit would rule the 20 same way the Ninth Circuit would.
I
- mean, it's a
21 clear issue that terrorism attacks, or aviation 22 attack, whatever malicious acts, are something that 23 should be considered in the licensing of nuclear power 24 plants.
- And, so, then we would come back after the 25 Fourth Circuit, which we would think would agree with NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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the Ninth Circuit.
There's maybe not a precedential 2
value in it, but certainly a collegial value between 3
the different circuits.
And, certainly, the factual 4
basis -7 and if we need to take that up as one of my
.5 client's near us has been active in some of the other 6
relicensing in different
- circuits, certainly, the 7
Oyster Creek is in a different circuit court.
I mean, 8
that issue alone can be litigated up and down.
9 JUDGE LAM:
So you do have means at your 10 disposal to protect your client's interest in this 11 regard.
And assuming the Fourth Circuit not going 12 with you, then you have a good case to go to the high 13
- court, because of two different Appellate Court 14 rulings.
15 MR.
RUNKLE:
Certainly.
And, again, that 16 assumes that you'll rule against us.
17 JUDGE LAM:
Okay.
18 CHAIR YOUNG:
From the Staff, let's hear 19 what you have to say on this issue, just briefly, if 20 you have anything further to add.
21 MR.
ROTH:
Nothing in particular to add.
22 The Ninth Circuit could be used as persuasive 23 authority, that the Commission is our controlling 24 authority, and the Commission has spoken and said that 25 the license
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terrorism under NEPA and found the impacts to be 2
already analyzed, and that they reiterated, and this 3
is from Oyster Creek that I'm reading, that they 4
reiterate their longstanding view that the NEPA 5
terrorism, the NEPA bands on terrorism --
6 CHAIR YOUNG:
Pardon me?
7 (Off the record comments.)
3 CHAIR YOUNG:
Okay.
Mr.
O'Neill.
9 MR.
LEWIS:
Mr.
Lewis.
10 CHAIR YOUNG:
Mr.
Lewis.
11 MR.
LEWIS:
Sorry, we're trading up on 12 you.
Let me just stress a couple of points that Mr.
13-Runkle raised.
He argued --
he agreed, first of all, 14 that the Supreme Court's denial of cert is in no way 15 a decision on the merits; and, therefore, the Ninth 16 Circuit is the law only in the Ninth Circuit, but 17 argued that it was still incumbent upon the.- NRC to 18 look at the San Luis Obispo issues in each proceeding.
19 The Oyster Creek precedent that the Board 20 cited, in fact, looked at every one of the issues that 21 was addressed by the court in San Luis Obispo, so the 22 Commission's precedent in Oyster Creek did exactly 23 what Mr.
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effects of a terrorist action are not causally related 2
to license renewal.
A license renewal, the Commission 3
held, is not the proximate cause of the effects of a 4
terrorist action; and, therefore, those effects do not 5
have to be considered under NEPA.
6 I did not hear Mr. Runkle distinguish that 7
case in any meaningful way.
When I looked at the 8
answers and replies, the only attempt I
saw to 9
distinguish that case was the assertion that not all
- 10.
aviation attacks are caused by terrorism.
- However, 11 the Commission's decision in Oyster Creek clearly does 12 not depend on the terrorist label.
What the.
13 Commission held in Oyster Creek was that NEPA imposes 14 no legal duty to consider intentional malevolent acts.
15 The Commission held that the environmental effects 16 caused by third-party miscreants is too far removed 17 from the expected. consequences to be required to be 18 considered under NEPA.
Therefore, calling it 19 terrorism or calling it an intentional attack is not 20 a distinguishing factor.
21 The other assertions that Mr. Runkle made, 22 that maybe we know some information about 23 vulnerabilities is simply not a factor that's raised 24 by the Commission's precedent Oyster Creek.
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cause.
Proximate cause is required,' and so I heard 2
nothing that addressed that issue.
If a case was 3
going to be distinguished, you'd have to look at what 4
the Commission held, and explain why that does not
- 5.
apply to our plant,.and that has not been done.
6 I think NC WARN is also arguing that the 7
Board needs to rule, so somehow their argument is 8
preserved.
That's not correct.
The Board can deny 9
this contention based on the binding precedent in 10 Oyster Creek, and should.
And it's longstanding NRC 11 law that licensing boards are bound to comply with the 12 directives of a higher tribune, whether they agree 13 with them or not.
I'm citing the South Carolina 14 Electric
& Gas case, ALAB-710-17NRC-25 at 28, but 15 there's many cases.
It's just longstanding precedent 16 that Boards follow Commission precedents.
And here, 17 you have a precedent that's completely on point, and 18 completely binding.
19 CHAIR YOUNG:
What was the cite you just 20 gave?
21 MR.
LEWIS:
South Carolina Electric & Gas 22 Company, Virgil C.
- Sumner, ALAB-710-17NRC-25 at 28, 23 1983.
That's just one citation.
There's many 24 citations where licensing boards have been required to 25 follow the precedent of appeal boards and commission's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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decisions.
2 CHAIR YOUNG:
Thank you.
3 MR.. LEWIS:
The licensing board here can, 4
and should, follow the Oyster Creek precedent.
If the
-5 petitioners believe that that ruling is
- wrong, they 6
can appeal it to the Commission, and they can pursue 7
judicial review, so there is no need for a hearing in 8
order for them to preserve their right.to challenge 9
this legal ruling farther down the road.
10 CHAIR YOUNG:
While we are with you, just 11 move back the other direction on the --
well,,before 12 we do on the backfit issue; actually, before we do 13 Mr.
Runkle, do you have any reply to anything that the 14 Staff or Applicant has argued here?
15 MR.
RUNKLE:
Only that the Staff asserted 16 that when the Commission says it has reviewed and said 17 that there was no possibility of a terrorism attack, 18 an aviation attack, we find that conclusion ludicrous.
19 Now whether you have to follow that decision or not, 20 I think goes out of --
I think it's a major step out 21 of what this Board needs to do when looking at the 22 relicensing for another 20 years.
And whether you 23 need to --
24 CHAIR YOUNG:
But --
25 MR.
RUNKLE:
Excuse me, ma'am.
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CHAIR YOUNG:
Go ahead.
2 MR.
RUNKLE:
Whether you need to follow 3
the precedents or
- not, it's the outcome.
The 4
Commission has not reviewed the problem.
It has known 5
for 20 or 30 years that there is a problem.
6 CHAIR YOUNG:
Okay.
I think I
will 7
interrupt you, because what I really would, like to 8
hear from you is the reply on whether or not we do 9
have to follow the Commission decision.
Do you have 10 any authority for us not being bound by the Commission 11 precedent on the issue of whether malevolent attacks 12 are something that can be the basis of an admissible 13 contention in a license renewal proceeding?
Because 14 that's really all that it would appear we have the 15 authority to decide.
You may disagree with the 16 Commission's decision, and you may take it up with the 1.7 Commission, and take it up to higher courts, but I 18 think the primary issue that you need to address, and 19 that I wanted to hear your reply on, was the issue of 20 whether or not we have to follow what the Commission 21 has ruled in precedent in another license renewal case 22 involving the same issue, in effect.
23 MR.
RUNKLE:
- Well, if you're to fulfill 24 your responsibilities in reviewing the application for 25 relicensing and the validity of the contentions, and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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whether it protects public health and safety, our 2
position is that if you feel that the Commission 3
decision does not do that, you need to investigate 4
that, and put that issue in front~of them.
5 CHAIR YOUNG:
- Well, let me ask you here.
6 You're talking about our responsibility to investigate 7
and to review.
I think we need to be a little bit 8
more precise about what our responsibility is.*
We 9
don't have investigative powers.
The Staff is the 10 entity that investigates any factual matters.
We have 11 the jurisdiction that's granted us in the law, and the 12 rules, and by the Commission when it refers a case to 13 us.
And we're bound by precedent, just as-any trial 14 court would be bound by precedent of an Appellate 15 authority, so I
want to caution you about making 16 somewhat broad statements about how you view our 17 responsibility, without giving us some legal authority 18 for your argument, because I don't hear that legal 19 authority from you.
20 MR.
RUNKLE:
You're right, ma'am.
21 CHAIR YOUNG:
Okay.
Can you finish up, 22 and then move on to the backfit issue?
And then I 23 want to hear from 24 MR.
RUNKLE:
I'm finished on that issue.
25 CHAIR YOUNG:
Okay.
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would you --
did you want to go ahead, or shall we go 2
back to the Applicant, and then move back this 3
direction?
4 MR.
RUNKLE:
I
- mean, if we're finished 5
with that issue, we could go to the backfit 6
CHAIR YOUNG:
Okay.
Do you want to 7
address that one, at this po'int?
8 MR. RUNKLE:
- Well, in light of the --
9 CHAIR YOUNG:
And, again in this --
pardon 10 me for interrupting again, but again, this speaks to 11 our authority, and where that authority would 12 originate with regard to your request for backfit 13 here.
14 MR.
RUNKLE:
I think that's a
remedy 15 that's available to you as this Board, as part of 16 determining that one of the contentions is
- valid, 17 after hearing that contention, after making your 18 decision.
As part of that, the remedy is to deny the 19 licensing or to backfit and take care of the problem 20 as it stands.
And the fire issue certainly can be 21 backfitted, and so the aviation attacks, again, but I 22 think that's a remedy, as opposed to something that 23 you need to start out at the beginning looking at.
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of a remedy as we require as a possible resolution to 2
one of the contentions that was admitted and heard.
3 CHAIR YOUNG:
Okay.
And we may come back 4
to this in the discussion of the fire protection 5
contention, but when we do, in the interim, I'd like 6
to ask you to look at 10 CFR 54.30.
In an 7
adjudicatory proceeding, from time to time the grant 8
of a license, license amendment, could be a renewed 9
license, may be conditioned on certain things which 10 may, to some extent, have the same effect.
But in the 11 license renewal context, I think you need to look at 12 that particular regulation, when we get back to the 13 fire protection, or if you want to address it now.
I 14 don't think we need to spend a whole lot of time on 15 this,.but that would be one thing that I would want 16 the parties to look at on that issue.
17 Okay.
Mr. Roth.
18 MR.
ROTH:
With regards to the backfit, 19 the Board is not the proper place for filing the 20 backfit issue.
And the most recent case on it, as 21 pointed out in the order, was Pilgrim Power Station in 22 CLI-06-26.
23 CHAIR YOUNG:
Okay.
24 MR.
ROTH:
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order, and the NRC or the Commission pointed out the 2
rule governing adjudicatory proceedings don't provide 3
for such petitions for backfit.
4 CHAIR YOUNG:
All right.
5 JUDGE LAM.:
And --
excuse me.
6 CHAIR YOUNG:
Go ahead.
7 JUDGE LAM:
Mr.
- Roth, I
think your 8
argument about this licensing board is not the proper 9
avenue for backfit request.
And in your pleadings, 10 you specifically mention perhaps 2.206 petition would 11 be a
more appropriate way for. the Petitioners to 12 address their grievances.
Is that correct?
13 MR.
ROTH:
That's correct, Your Honor.
14 JUDGE LAM:
May I
ask you, Mr.
- Roth, 15 within the past 20 years of agency enforcement 16 activities, how many 2.206 requests have been granted?
17 MR.
ROTH:
I don't have that information 18 with me, Your Honor.
19 JUDGE LAM:
My recollection is very, very 20 few of them has ever been granted.
Of course, the 21 agency has an established process for considering 22 2.206 requests.
The reason I raise this point is 23
- this, if such a process usually does not lead to a 24 meaningful conclusion to the petitioner, do you have 25 another recommendation for the petitioner?
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MR.
ROTH:
The alternate one would be a 2
petition for rule making.
3 JUDGE LAM:
So :besides the 2.206, the 4
petition for rule making would be another means they 5
can come before the agency.
6 MR.
ROTH:
That's correct, Your Honor.
7 JUDGE LAM:
And beyond that?
8 MR.
ROTH:
Well, they could take it up to 9
an Appellate Court if they didn't like how the 10 Commission had ruled on a particular issue.
11 JUDGE LAM:
Okay.
Thanks.
Ms. Uttal, you 12 have any thoughts to add to this?
13 MS.
UTTAL:
- Well, they could raise 14 appropriate issues in an appropriate application.
The 15 issues may not fit in this particular application for 16
- renewal, it may fit somewhere else.
17 CHAIR YOUNG:
A different application by 18 the applicant with regard to --
19 MS.
UTTAL:
By the applicant.
20 CHAIR YOUNG:
What about the issue of 21 conditioning the grant of a
- license, or license 22 amendment, or license renewal, on certain actions?
23 That has certainly been done in proceedings in the 24 past.
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UTTAL:
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done in.license renewal space.
2 CHAIR YOUNG:
No, not in license renewal, 3
but in
- general, would there be anything that would 4
distinct that from the situation in license renewal 5
from other cases in which there have been condition's 6
placed?
7 MS.
UTTAL:
No, but any conditions that 8
are placed would have to be related to license 9
- renewal, be related to aging management, or the 10 environmental issues that fall within license renewal.
11 The problem with the issues raised here is that 12 they're outside the scope of license
- renewal, so 13 they're inappropriate for this 14 CHAIR YOUNG:
Anything further from the 15 Staff?
16 MR.
ROTH:
No, Your Honor.
17 MR.
LEWIS:
Thank you, Judge Young.
I 18 agree with the Staff, that the Commission's decision 19 in CLI-06-26 indicates that backfit requests are not 20 appropriate for license renewal.
And I also agree 21 with Ms.
Uttal's observation that the scope of this 22 proceeding is limited.
It's limited on the safety 23 side to age-related issues.
These two contentions, 24 though, are labeled as "Environmental Contentions";
25
- and, therefore, I
don't think they even raise a
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safety-related issue.
If they did, the safety-related 2
aspects of security and operations are not within the 3
scope of the proceeding.
4 With respect to the environmental review, 5
the scope are those environmental issues that are 6
identified in 51.53(c)4 of the NRC's regulations, and 7
that also limits the scope of this proceeding, and the 8
Board's review.
And the significance of the Oyster 9
Creek decision is that the effects of terrorism are 10 not proximate cause effects of license renewal; and, 11 therefore, don't have to be considered, so they're not 12 within the scope of a NEPA review.
13 I
would like to briefly address Judge 14 Lam's pointed about 2.206 petitions.
I think it's 15 somewhat of a
myth that 2.2066 petitions aren't 16 granted.
In fact',
there was a
decision in the 17 Millstone license renewal proceeding a while back 18 where the County of Suffolk requested to raise 19 emergency planning in license renewal for Millstone, 20 and I think the licensing board in that proceeding
- 21.
indicated that --
or expressed.some skepticism about 22 whether the 2.206 mechanism was an adequate avenue for 23 the County of Suffolk to raise those concerns.
And 24 the Commission addresses that specifically in CLI 25 24, 62NRC-551, at page 565, Note 63, going on to the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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next page, specifically noted that "Sixteen of this 2
decade's 26 director's decisions granted at least some 3
of the-relief requested."
And the Commission in that 4
case explicitly discussed, this is a real process, and 5
it's one that we provide under the rules, and it's not 6
a sham.
7 JUDGE LAM:
Thank you for that info.
8 You're saying 16 out of there's 16 approvals for 9
2.206?
10 MR.
LEWIS:
I'll read it.
"Sixteen of 11 this decade's 26 DDs (Director's Decision), granted at 12 least some of the requested relief, either by a direct 13 grant, or by noting that the Staff action prior to the 14 DD's issuance had already provided the relief sought.
15 And then the Commission cited 16 Director's Decisions.
16 JUDGE LAM:
Thank you for the information.
17 That means within one decade, the agency granted 16.
18 requests out of whatever the number of total requests 19 is.
20 MR.
LEWIS:
That's all.
21 CHAIR YOUNG:
Anything further on backf it?
22 MR.
RUNKLE:
If I may just on that point, 23 that information --
24 (Off mic comment.)
25 CHAIR YOUNG:
Your microphone.
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MR.
RUNKLE:
If I may just address that 2
last point, that 16 out of the 26 Director's Decision 3
addressed at least in passing some aspect of the.2.206 4
- position, at least to reflect that the Staff had 5
looked at that issue, does not mean that a 2.2.06 6
petition is the'way to get anything done.
I think 7
there's a big difference of looking at an issue, and 8
saying that the Staff has looked at it, as to 9
resolving that in favor of the Petitioner in a 2.206 10 petition.
We have not seen that as any avenue of 11 raising concerns,
- except, again, to try to get the 12 issue before the Commission.
13 CHAIR YOUNG:
All right.
Let's take a 14 short break and come back, and discuss Environmental 15 Contention III.
And you have our questions on those, 16 which will serve as a
sort of start point for 17 discussion.
So let's see, let's take 10 minutes, 15 18 minutes?
Fifteen minutes, and I'm not sure my watch 19 is right, but 15 minutes from now, which would be 20 11:15.
Okay.
21 (Whereupon, the proceedings went off the 22 record at 10:58:40 a.m.,
and went back on the record 23 at 11:17:25 a.m.)
24 CHAIR YOUNG:
All right.
If everyone is 25 ready, on Contention EC-III, our main question had to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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do with comparing the contention in this case to the
.2 one we ruled on in the Pilgrim case.
I say we, I was 3
on that board with two other technical judges -
in any 4
event, -in that board, the petitioners challenged some 5
specific inputs to the SAMA analysis, and we limited 6
our admission of that contention to three specific 7
inputs to the SAMA analysis.
And we would like for 8
you to address the admissibility of your contention, 9
in light of the situation with the Pilgrim contention.
10 And then the second had to do with the extent to which 11 a
2.206 action, or a rule making petition, would 12 address your concerns.
13 MR.
RUNKLE:
I'll be glad to address both 14 issues.
Since there has been some discussion of the 15 2.206 petition, if you don't mind, we'll start with 16 that.
17 CHAIR YOUNG:
Okay.
Can you hear?
Are 18 you getting him all right?
Okay.
19 MR.
RUNKLE:
And your question is whether 20 enforcement of a 2.206 petition or a rule making 21 petition would address our concerns.
I suppose if a
22 2.206 petition was --
the ruling was favorable to our 23 position, or a rule making petition would change, then 24 yes, that would meet our concern, but our concerns are 25 not dealing specifically with those enforcement and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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rule making issues.
What it is, is at the Shearon 2
Harris Nuclear Power Plant, there has been such a 3
significant change of circumstances that the emergency 4
plan 20 years ago never would have forecast that the 5
population had gone up from -
I don't recall the exact 6
numbers, but it went up a significant-10 times in 7
two decades, and could go up from 15,000 up to 160,000 8
by the time the.license extension was.
So in looking 9
at the contention, it's really the change of 10 circumstances that went into the initial emergency 11
- planning, that was totally unforeseen, ind so any 12 deficiencies in the present plan will be carried out 13 for the next 20 years-as this license runs out, and be 14 exacerbated by the significant growth of population, 15 and the changes of land use in the area.
So to 16 suggest that these matters are not subject to the 17 renewal
- review, because they can be addressed by 18 enforcement, of a rule making petition, I really think 19 begs the. question.
The question is whether this panel 20 needs to address this issue as part of the licensing 21 renewal.
22 CHAIR YOUNG:
But did
- you, or your 23
- clients, look at the application, the environmental 24 report portion of the application relating to 25 population and evacuation?
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MR.
RUNKLE:
- Yes, ma'am.
2 CHAIR YOUNG:
- And, I guess to get more to 3
the first question, I don't recall seeing any specific 4
challenges to the figures in the application on 5
population, and evacuation in the SAMA analysis.
And 6
I know you mentioned the SAMA issue generally in your 7
introductory portions of your petition, but I don't 8
recall that you specifically discussed the SAMA 9
analysis in your contention.
10 MR.
RUNKLE:
- Well, the contention adopts 11 a preliminary legal position, that you have to do the 12 SAMA analysis as these issues arise.
And, certainly, 13 in the emergency planning, that if the analysis is not 14 there, to be based on the variance in the numbers, or 15 based on whether the emergency plan can evacuate 16 people safely, or that special populations of home-17 bound people are not being addressed.
Certainly, the 18 contention raises all those issues.
Whether there's 19 a
-- we're basing the contention on that there are 20 significant changes of circumstances, and that the 21 plan does not address the impacts of so many more 22 people in that area, and so many more people that 23, could not be safely evacuated from at least a 10-mile 24
.25 CHAIR YOUNG:
Well, on the population, the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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application does say that refer to the 2000 2
population.
3 MR.
RUNKLE:
Yes.
4 JUDGE MIGNEREY:
It's unclear to me where 5
your contention is going.
Is it related to the 6
population estimates, and your contention that you
- 7.
don't think those are appropriate, or that the 8
evacuation procedures for the population that is 9
.estimated is inappropriate, or both?
10 MR.
RUNKLE:
In looking at -
we used the 11 2000 figures, that's from the census.
I'm sure that 12 the numbers are fundamentally the same between what's 13 in the application documents, and what's in the 14 affidavit of Dr. Wing, looking at the population of 15 about 60,000.
But we're also looking at the time 16 period from 2027 to 2037.
17 CHAIR YOUNG:
- Well, now the application 18 does say that they project for the year 2040.
19 JUDGE MIGNEREY:
They have made specific 20 projections to 2040 in the application.
21 MR.
RUNKLE:
Okay.
I understand that 22 there are projections into the future from both --
23 from our things, but that's the reason why any 24 deficiencies that are in the application now, and any 25 deficiencies that were in the application 20 years NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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- ago, will be compounded in 2027 when the current 2
license runs out, and between 2027 and 2047, which is 3
the relicensing period..
And so, if you're looking at 4
the deficiencies,.those are grossly compounded by the 5
changes in land use, more population, looking at the 6
-initial 7
CHAIR YOUNG:
You say when you're looking 8
at the deficiencies, and I think the question was, if 9
they projected to
- 2040, what deficiency are you 10 alleging with regard - let's start with the population 11 project to 2040.
12 MR.
RUNKLE:
Oh, I don't think that's 13 the issue is not what the population number is, 14 whether the gross population is, as we've suggested, 15 would be 220,000, is what they've suggested in 2040.
16 I mean, those are just projections, but that's the 17 reason why you need to look at the deficiencies in the 18 evacuation plan as it is now.
There will be so many 19 more elderly people, so many more children, so many 20 more home-bound people, looking at the affiant members 21 of NC
- WARN, double-amputee, cannot get out of the 22 evacuation, but there would be many more of those 23 people.
And if the present system does not take care 24 of those people now, and is not projected to take care 25 of those people in
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anything better by 2047?
2 CHAIR YOUNG:
What would be helpful for me 3
would be if you could look at the portions of the 4
application that deal with population and evacuation, 5
and point out you're using phrases like "if it's 6
not sufficient now",
or "if it's deficient now".
What 7
specifically is deficient about what the application 8
says about evacuation, and how did you address that in 9
your contention?
10 MR.
RUNKLE:
In the the numbers of 11 projection of total population I think are matters of 12 concern.
You can put the numbers out there.
13 CHAIR YOUNG:
Okay.
What numbers?
Let's 14 try to get to the specifics of it.
.15 MR.
RUNKLE:
Either our numbers that go 16 out to 2047, or the application's numbers that go to 17 2040.
They're fundamentally the same.
18 CHAIR YOUNG:
The what?
19 MR.
RUNKLE:
Those numbers are --
20 JUDGE MIGNEREY:
Fundamentally the same.
21 CHAIR YOUNG:
Oh, fundamentally the same.
22 Okay.
23 MR.
RUNKLE:
Yes.
We're not arguing that 24 their numbers are wrong as gross numbers.
You can put 25 out the numbers, but if you don't have a plan how to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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take care of those people in times of an accident to 2
safely evacuate them, if you can't do it for 15,000 3
people, you can't do it for 60,000 people, you can-'t 4
do it for 200,000 people.
5 CHAIR YOUNG:
Okay.
Let me see if I can 6
narrow the issue just a little bit.
Did I understand 7
you to say that you're not raising a challenge about 8
the population numbers?
9 MR.
RUNKLE:
No, we are not.
10 CHAIR YOUNG:
Okay.
So what you're 11 challenging is solely related to the evacuation?
12 MR.
RUNKLE:
Yes.
13 CHAIR YOUNG:
And 14 MR.
RUNKLE:
There is no showing that you 15 can safely evacuate, even in the 10-mile EPZ, 15,000 16 people, that was 20 years ago, to 60,000 plus that are 17 there today, or the 200,000 that are there by 2047.
18 CHAIR YOUNG:
So did your expert challenge 19 the, for example, evacuation speed of 1.2 meters per 20 second was selected based on data in the HNP 21 evacuation time study, that indicated 243 minutes to 22 evacuate the EPZ, which includes a 15-minute. delay.
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.MR.
RUNKLE:
There are certain 2
CHAIR YOUNG:
and so forth?.
3 MR.
RUNKLE:
Excuseme.
I'm sorry.
Since 4
we're having a. conversation --
5 CHAIR YOUNG:
That's
- okay, go ahead.
6 We'll tell the court reporter to stop us if we do talk 7
over each other so he can get everything on the 8
record.
But in talking about the children, the senior 9
citizens, or nursing home residents, and so forth, did 10 he say that the evacuation speed, and so forth, did 11 not take those into account?
12 MR.
RUNKLE:
He did not specifically 13 address the purported speed of safelyevacuating the 14 10 miles in the EPZ.
What he did say is that he went 15 to the basic assumptions of that time period that do 16 not address the additional population, the number of 17 people, road conditions, and the ability to get people 18 65 and older, or home-bound, or children, or people in 19 nursing homes out of there.
20 CHAIR YOUNG:
You say "growth conditions",
21 meaning growth in population?
22 MR.
RUNKLE:.
Yes, ma'am.
23 CHAIR YOUNG:
But at this point, you're 24 not challenging the population figures?
25 MR.
RUNKLE:
No, we are not.
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CHAIR YOUNG:
Okay.
2 MR.
RUNKLE:
But the assumptions are, that 3
go into that six-hour time period to evacuate, the 4
expert directly addresses.
5 CHAIR YOUNG:
And those assumptions, if 6
you'll help me here,. come from where?
And how-do they 7
relate to what's in the application?
8 MR.
RUNKLE:
Well, the assumptions - we're 9
addressing the assumptions that go into the 10 application.
11 CHAIR YOUNG:
And point me to where I can 12 see what those are.
13 MR.
RUNKLE:
Basically., the six-hour time 14 period?
Is that what you're --
15 CHAIR YOUNG:
Where can I
find the 16 assumptions that went into the - whatever time period 17 it
- was, the 243 minutes?
18 MR.
RUNKLE:
Oh, I see what you're saying.
19 I would need to contact the expert and have them go 20 through the license renewal application to be able to 21 really answer that with any specifics.
22 JUDGE MIGNEREY:
To be a
little more 23 specific, what I'm understanding from the conversation 24 is that your expert is not, necessarily, arguing with 25 this mean
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population will significantly affect the smaller 2
population of people who are not easily evacuated.
3 MR.
RUNKLE:
- Well, but also in terms of 4
looking at the road conditions, if the assumption that 5
went into the six-hour evacuation time addresses the 6
current roads, we're looking at all the roads being 7
impassable, and the major highways in the area being 8
impassable by let's see if I can get the date on 9
that -
I think it's within 20 years of when the roads 10 will be impassable.
And, again, that goes back to the.
11 population increases that have been so significant, 12 and the critical populations that need to be taken 13 care of.
14 CHAIR YOUNG:
Here's a sort of fundamental 15 problem I'm having.
As compared to the Pilgrim 16 situation, where the specific inputs in the 17 application, in the SAMA analysis were challenged.
18 What your contention refers to is the adequacy of the 19 evacuation plan, which is a plan that, as I understand 20 it, is produced at the local level, state or local 21 level, and then sort of referred to by the licensees 22 and the NRC.
But in the application, in the SAMA 23 analysis -
and the context for all of this is the 24 Commission has clearly said that opening up these 25 emergency planning and evacuation planning issues are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., NW.
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not admissible safety issues in a
proceeding.
3 In Pilgrim, the-contention raised in an 4
environmental context, specific challenges to certain 5
of the input data used in the SAMA analysis.
What I 6
don't see in the contention are challenges to the 7
specific input data used in the SAMA analysis.
It 8
refers to the evacuation plan, but I can't tell from 9
that whether that's the same thing that was used in 10 the application or not.
The application is much more 11 specific than just talking about the evacuation plan, 12 and so the argument that you have raised a genuine 13 dispute on a material issue of fact or law carries 14 some persuasiveness in the context of a contention 15 based on an expert's opinion that the evacuation plan 16 doesn't take certain things into account, certain 17 assumptions don't take certain things into account.
18 But the dispute has to be with the application, and 19 I don't see - maybe I've missed it, and that's why I'm 20 asking, you to address that -
how your contention 21 raises a specific dispute with the actual application.
22 JUDGE MIGNEREY:
What I
think we're 23 looking for is some more specifics related to this 24 input that is in Section E-3.4 in the evacuation 25 section of the license renewal, which states the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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values used, "These values have been used in similar 2
license renewal SAMA analysis."
So this is an input 3
into the SAMA analysis.
We'd like some more.specific 4
details.
5 CHAIR YOUNG:
Did your expert --
I don't 6
think he referred to the SAMA analysis.
Did your 7
expert, was he aware of what was in the SAMA analysis, 8
the input data that was used in it, specifically?
And 9
does he know, or do you know that, in fact, the data 10 that was used in the SAMA analysis is the same, or 11 different than what was in the evacuation plan.,
and 12 whether it is based on assumptions that you're 13 challenging?
I mean, that's 14 MR.
RUNKLE:
I think I have to answer all 15 those questions no.
16 CHAIR YOUNG:
All right.
Let me see if I
17 understand it.
You're saying that he did not know 18
- about, or challenge the specific data in the SAMA 19 analysis.
Did I understand you right?
20 MR.
RUNKLE:
I thought I. was the 21 questioning I was answering, do I know whether he did 22 or not, and I don't.
23 CHAIR YOUNG:
Okay.
24 MR.
RUNKLE:
Okay.
I don't.
He had 25 documents in front of him.
I don't know what he based NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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his conclusions on.
Certainly, looking at Attachment 2
5 to the initial
- petition, one of the local 3
governments raised the same issues about the adequacy 4
of the plan, and whether they had the reference of the
.. 5 SAMA analysis in front of them or not, I don't know.
. 6 I
can't tell you today.
7 CHAIR YOUNG:
In that context, how do you 8
argue that you've raised a
genuine dispute on a
9 material issue of fact, for example?
If you don't 10 know that there's a
specific dispute with the 11 application, you're --
that's why we asked you to 12 compare this to Pilgrim, where they did raise a
13 specific dispute with the application, the input to 14 the SAMA analysis.
15 MR.
RUNKLE:
- Yes, ma'am.
I can't answer 16 that.
17 CHAIR YOUNG:
Okay.
Anything further on 18 that?
19 MR.
RUNKLE:
No.
20 CHAIR YOUNG:
Do you have any more 21 questions?
22 JUDGE MIGNEREY:
No.
23 CHAIR YOUNG:
Mr.
Roth, or Ms. Uttal.
24 MR.
ROTH:
Just with regard to emergency 25
- planning, as we put in our written response, the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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emergency planning issues are outside the scope of the 2
license renewal, and the Commission has consistently 3
held this.
From what I have heard, and how we read 4
the
- petition, I've not seen anything that would 5
suggest that they're even within scope at all, from 6
what he's saying.
He hasn't identified an issue with 7
the amendment, itself.
He's uncertain of whether his 8
expert has looked at the SAMA analysis or not.
9 There's just not we see that's admissible about this, 10 either straightforward, or from the fact that the rule 11 and the Commission already said that it's outside the 12 scope.
13 JUDGE LAM:
- Now, Mr.
- Roth, I
think the 14 Commission has clearly spoken in Turkey Point, and 15 Millstone on emergency plan should not be an issue 16 admissible in license renewal proceeding.
That said, 17 I think in your pleading, you also mention "ongoing 18 regulatory process through mandate that review and 19 drills on emergency evacuation plans, the Commission 20 is making sure that the existing plan is adequate."
21 Let me ask you, do we assume, if the license renewal 22 is
- granted, if, that this is the same practice on 23 Commission review on the emergency plan as time goes 24 on will continue?
25 MR.
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Since this particular license NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., NW.
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renewal would be 20 years in the future, we would just
.2 be speculating as to what the rules would specifically 3
be, what the inspection program would be.
But I'm 4
unaware of anything at the moment that would change 5
our inspection program, based on whether it's renewed 6
or non-renewed license for emergency planning.
7 JUDGE LAM:
So the current licensing basis 8
would ensure, that within the current license period 9
any population increase would not adversely impact on 10 the existing plan.
If so, the existing plan would be 11 revised.
That's what your pleading implied.
12 MR.
ROTH:
That's my understanding.
- Yes, 13 Your Honor.
14 JUDGE LAM:
And then I would assume that 15 same implication, would apply to amend the license's 16
- renewal, because otherwise, how do you manage?
You 17 see, the petitioner raised a valid point', admittedly 18 outside the scope of this proceeding,.when times moves 19 on, there be population increase in the urban area, 20 and that can lead to difficulty of evacuation.
The 21 current licensing basis adequately address
- that, 22 according to your pleading, through mandatory review, 23 and drills,'
and -whatever other measure the agency, 24 Staff will do.
After that but the issue of 25 population increases and compounding difficulty of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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evacuation is real.
The Commission has clearly 2
prohibited that type of issue to be addressed in 3
license renewal because of the rationale that you 4
explained.
The Commission does not want to open the 5
floodgate of revisiting all the issues that is under 6
the current licensing basis.
But that issue, this 7
issue that Petitioner had raised about population 8
increase is real, so perhaps I would like to hear from 9
you what assurance would you give to the public 10 outside of this particular proceeding how this issue 11 is being handled right now?
12 CHAIR YOUNG:
Before you answer, let me 13 just add another aspect to the question.
I noticed a 14 news article in the NRC website's news section where 15 they provide articles about issues related to nuclear 16
- power, and so forth, that with regard to the Oyster 17 Creek Nuclear Power
- Plant, that the New Jersey 18 Department of Environmental Protection, in cooperation 19 with the New Jersey State Police, was going to be 20 holding a public hearing, annual public hearing to 21 determine the adequacy and effectiveness of the New 22 Jersey Radiological Emergency
Response
- Plan, and 23 inviting the public to come and comment, and so forth.
24 And the issues specifically included how evacuation 25 from around the area of the power plant would be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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handled.
Is that the same type of thing that's done 2
nationwide, and specifically, would be done here?
3 MR.
ROTH:
To answer it best as to how the 4
current emergency planning inspections go, I would 5
have. to consult with the appropriate emergency 6
planning staff.
At this point,' I'm not prepared to go 7
into details of our emergency planning inspection 8
process.
9 JUDGE LAM:
But you know there is. an 10 inspection process.
11 MR.
ROTH:
It's subject to an ongoing 12 regulatory review, as the Commission has repeatedly 13 said.
14 JUDGE LAM:
Thank you.
15 CHAIR YOUNG:
All right.
Mr. O'Neill.
16 MR.
O'NEILL:
I'm going to address your
- 17.
first question first, I think.
And let me first state 18 that the contention is not the contention you were 19 trying to formulate with Mr.
Runkle.
It never 20 mentioned SAMA, it never pointed to a deficiency in 21 the SAMA 22 CHAIR YOUNG:
I'm going to caution you to 23 not characterize what I
was doing as trying to 24 formulate a contention.
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the discussion that you had was novel, I
- think, 2
compared to what Mr. Runkle said in his pleadings, and 3
Dr. Wing said in his affidavit.
Dr. Wing's affidavit 4
referred to the 1987 emergency plan, and said it 5
should be updated to current populations..That's all 6
it said.
'There was no specificity there, at all 7
Mr.
- Runkle, given a number of chances, 8
including both the Staff and the Applicant, and noting 9
that this was not an environmental contention, he was 10 actually challenging the emergency plan, did not deny 11 that he was challenging the emergency plan.
- And, 12
- again, today he basically says-he's challenged the 13 emergency plan, which is what his contention says, is 14 that he 'finds the emergency plan not adequate to 15 protect public health and safety.
That's his 16 contention, which, of course, is outside the scope.
17 But even assuming that he meant to, 18 because he characterized it as an environmental 19 contention;
- and, of course, the only-way he can an 20 environmental contention in, because the only thing 21 that's in the environmental report is the SAMA, even 22 if that's what he was characterizing; of course, as 23 your discussion with him indicates, and I would simply 24 be piling on to note that he doesn't meet the 25 requirements of 2.309(f),
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what he is challenging with respect to the SAMA.-that
ý2 relates to the evacuation time estimates.
- And,
- 3.
therefore,.there's no basis for a contention relating 4
to-and you can contrast it quite effectively with 5
- Pilgrim, where as the.. Chair noted, there was very 6
specific specified arguments with the inputs to the 7
Pilgrim SAMA; and, therefore, those were admitted to 8
be litigated.
- Here, there
-is no, there is no 9
specified disagreement with the inputs into the SAM4A.
10 To make sure that the Board is
- aware, 11 there was discussion of the New Jersey Plan, the North 12 Carolina plan, of course, is comparable, but there's 13 also a Harris plan.
And the Harris plan can be found 14 at Adams, and this is Rev.
52 of the Harris plan, can 15 be found at Adams at ML-070100384.
It was released in 16 Adams June.19, but it was submitted to the NRC - this 17 is Rev.
- 52. -
January 3,
'07.
And I mention. that 18 because that is the plan, and it has been updated 52 19 times, apparently.
20 And with respect to the issue of 21 evacuation times, 5.6 of the plan on page 82 of 123, 22 specifically states that the Harris Nuclear Plant 23 evacuation time estimates will be considered valid 24 until the population within a
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ETE was determined.
If the population is found to 2
have increased by greater than 10 percent, then a 3
revised ETE will be established using appropriate 4
guidance in NUREG CR-4831, "State-of-the-art in 5
evacuation time estimate studies for nuclear power 6
plants.
An ETE updated shall be performed every five 7
years to ensure the adequacy of other evacuation 8
assumptions."
That is the requirement in the 9
The last published ETE was 2002, 10 which is referred --
11 CHAIR YOUNG:
Excuse me, I'm sorry.. ETE, 12 again?
13 MR.
O'NEILL:
Is the Evacuation Time 14 Estimate.
15 CHAIR YOUNG:
Time Estimate.
Okay.
16 MR.
O'NEILL:
- ETE, Evacuation Time 17 Estimate.
That wasn't input into the SAMA, as you 18
- noted, and the time used there was 243 minutes to 19 evacuate the EPZ.
And that was based on the 2002, not 20 1987 or some previous, study.
21 The update is now ongoing, and will be 22 published this year, which is the five-year update.
23 And so it is ongoing to ensure that there is an 24 understanding of how long it will take to evacuate the 25 citizens.
Specifically, in the ETE you will find a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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discussion of special needs populations, and the 2
issues related to schools, nursing homes, daycare 3
- centers, and what the. special needs are to evacuate 4
those populations.
So this is all part of an ongoing 5,
process.
And, of course, as the Staff noted,.there
'6 are drills, and continuous evaluation with the state, 7
and the county, and the local law enforcement of the 8
adequacy of emergency plans.
And *there has been 9
- nothing, other than generalized statements that 10 they're inadequate, but there's been no specificity.
11
- And, in fact, I believe Dr. Wing was thinking that the 12 emergency plan was based on 1987 data, because that's 13 what he said.
14 So I think it's fair to say that this, to 15 answer your question, is very distinguishable from 16 Pilgrim, and that it is also absolutely clear that
.17 this isn't really a SAMA contention; and, therefore, 18 is outside the scope of this proceeding.
But even if 19 it were, you couldn't put together a contention that 20 would meet the requirements of 2.309(f).
21 JUDGE LAM:
So, Mr.
O'Neill, are you 22
- saying, are you really saying the Commission's 23 prohibition of consideration of evacuation plan in 24 license renewal has a genuine basis, is not arbitrary 25 and capricious exclusion.
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process of evaluation?
2 MR.
O'NEILL:
I believe that the 3
Commission, when it determined the narrow. scope of 4
license
- renewal, specifically addressed emergency 5
planning as something that was continually evaluated, 6
- updated, and determined to be adequate.
-And, 7
consequently, it would'not be necessary to look at 8
this issue in the context of a proceeding which is to 9
focus on aging management, and not on the overall 10 operation of the plant under its current licensing 11 basis.
So the Commission made that decision carefully 12 and thoughtfully, to ensure that the Commission would 13 only focus, on those issues that are unique to an 14 additional 20 years of operation.
15 JUDGE LAM:
So calling it out of scope is 16 not something capricious, or saying hey, this doesn't 17 belong here, go elsewhere.
18 MR. O'NEILL:
I think it was determined by 19 the Commission after many years of public input in a
20 rule making process, in determining what the scope of 21 this proceeding should be.
So it was certainly not 22 arbitrary and capricious.
23 To answer the question number two, and 24 there has been --
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concerns related to, in this case emergency planning, 2
Mr.
Lewis discussed what is the careful statement by 3
the Commission in Millstone.
- And, in fact, defending 4
the 2.206 petition as an appropriate way to address 5
such
- concerns, and one that is provided by the 6
Commission.
-In fact, they also chastize, I think it's 7
fair to say, the licensing board there for suggesting 8
that it was not a real process, and somewhat of a 9
sham.
10
- This, I found a decision that addressed 11 all of these particular opportunities to address 12 petitioner's concern that the Chair is certainly 13 familiar with, which is LPB-02-4, 55 NRC 49,
- 2002, 14 Duke Energy McGuire and Catawba, where the Board 15 noted, "Challenging the Commission rule falls out to 16 decide the jurisdiction of the licensing board; 17
- however, there are other avenues through which 18 petitioners may seek
- relief, including filing an 19 enforcement petition under 10 CFR 2.205, a rule making 20 petition under 10 CFR 2.802, or request to the 21 Commission under 10 CFR 2.335, to make an exception or 22 waive a rule based on special circumstances with 23 respect to the subject matter of the particular 24 proceeding, such that the rule would not serve the 25 purposes for which it was adopted."
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The Commission, some time
- ago, 2
specifically found that "An effective way to address 3
problems affecting nuclear reactors is to petition the 4
Commission to promulgate an amendment to its rules 5
under 10 CFR 2.802."
That is some years ago in 6
Cleveland Electric Illuminating Company, Perry, LPB-7 81-57, 14 NRC 1037, at 38-39, 1981.
8 So I believe that it's the Commission's 9
- view, and the view of, I believe, the Board, that 10 these are adequate approaches to addressing concerns 11 that are outside the scope of this proceeding.
12 JUDGE LAM:
- Now, if I
- may, I
want to 13 clarify for the record, the word "sham" was only used 14 by license applicant counsel in the current debate 15 here.
I, for one, would not categorize the 2.206 16 petition process using that vocabulary.
And, also, 17 I'd like to clarify, in my discussion on 2.206, it was 18 raised for a reason.
To me, for those of us who are 19 in the business of protecting public health and 20 safety, when we hear there are a process to address 21 their grievances, the process must be transparent, 22 have reasonable chances of success.
And, therefore, 23 the common citizens' grievances would be appropriately 24 addressed.
That was my intent of raising the issue of 25 2.206.
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Now the licensee's counsel using the word 2
"sham",
perhaps needs clarification from Mr. O'Neill.
3 One thing is clear --
4 MR.
O'NEILL:
I, actually, was referring 5
to the decision in LPB-05-16, in Millstone, that was 6
rejected by the Commission", where the licensing board 7
there said, "The Staff appears to concede there are no 8
other means by which the county's interests will be 9
protected, but Dominion trots out the venerable 10 provisions of 10 CFR 2.206.
That regulation holds out 11 the promise that those dissatisfied with Staff or 12 Commission action
- can, outside the adjudicatory 13
- process, file with the Staff a petition seeking the 14 modification of existing license.
The venerability of 15 Section 2.206 is
- also, it's
-undoing for present 16 purposes, when Board members inquired at oral argument 17 about its usefulness, it was virtually conceded that, 18 as we suspected, the number of times that provision 19 has been successful invoked in the past 30 years can 20 be counted on very few fingers;"
21 That was obviously, this Board was 22 misinformed, and. I believe that the Commission was 23 making it crystal clear at Footnote 63, that, in fact, 24 this is a
viable provision, and not a venerable 25 provision which really has no effect.
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"sham" to characterize what that-word said there.
2 JUDGE LAM:
Great.
Thank you for the 3
clarification, because I don't think none of us intend 4
to have derogatory comments about the agency's 5
processes.
Thank you again".. Mr.
O'Neill.
I 6
appreciate that.
7 MR.
O'NEILL:
And particularly when I
8 quoted from a Board decision that was chaired by the 9
Chair here, in finding that those opportunities 10 CHAIR YOUNG:
In the Duke case.
11 MR.
O'NEILL:
In the Duke
- case, were 12 appropriate.
13 JUDGE LAM:
Thank you.
14 CHAIR.YOUNG:
Just to follow-up a little 15 bit on this.
First of all, did you get the Adams 16 number to look at the latest terrorist plan, because 17 I think we'd encourage you to look at that, and have 18 your expert look at that; because, obviously, you've 19 raised something that's of concern to your clients, 20 and it may be that it's not based on the most recent 21 information, and it may be that by looking at that, 22 that may address some of your concerns.
23 And then I
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process, and the 2.335 request for: a waiver process, 2
and we --
I mentioned that state agencies who address 3
these issues often have public hearings where the 4
public can come in and. take part in that process.
.5 Just for informational purposes, when Harris develops 6
its plan and updates its plan, is there any process 7
for public participation in that, or how is that done?
8 Is there any information we can provide to the 9
petitioners on that?
10
- MR.
O'NEILL:
I don't think when Harris
- 11.
publishes its revised plan, Rev.
52, there is any 12 public participation, except to the extent that it is 13 done with coordination of local governments, county 14 governments, and state governments, with respect to 15 the emergency plan only operates with all of these 16 agencies working together with the licensee.
17 CHAIR YOUNG:
- And, so the appropriate 18 local government, and state government entities would 19 be an avenue for concerned citizens to raise their 20 concerns.
21 MR.
O'NEILL:
Of course.
22 CHAIR YOUNG:
Okay.
Just for 23' informational purposes.
24 MR.
RUNKLE:
Ma'am, may I address that 25 last point?
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CHAIR YOUNG:
Sure.
2 MR. RUNKLE:
Because the petitioners have 3
been talking to representatives from the local 4
governments, and their needs are not being met by the 5
current evacuation plan, as Orange-County, but other 6
local governments of the counties around the plant, 7
and 'the cities and towns.
They, don't have the 8
resources, they're not part of the planning.
They are 9
expected to carry out functions,--
10 CHAIR YOUNG:
"They",
being?
11 MR.
RUNKLE:
The local governments that 12 either paid staff or volunteers are putting themselves 13 in the way of danger.
They don't feel they have the 14 resources and ability to at all shelter anybody 15 outside of it, so to say --
to make a decision based 16' on Mr.
O'Neill's assertion that somehow or another 17 this plan is fully accepted, and goes through this 18 process that meets all these
- needs, that's not 19 happening.
And I think going to -- we're trying to 20 address this in the contention, of getting the local 21 governments to say why they're not.
They haven't been 22 able to get copies of it.
I will give them the Adams 23 number on this, because local governments have tried 24 for months to get copies of the current evacuation 25 plans, to see how their role in these plans are going NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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to be taken care of.
So in the real world, this is 2
not happening.
And in the real world, the NRC, this 3
process of emergency plan around Shearon Harris, is 4
just not happening.
And you can't make a decision on 5
that, whether the contention doesn't make the criteria 6
or have adequate basis, you can make that, but you 7
cannot say that the current process is addressing the 8
needs of the people or the local governments, because 9
it's just not.
10 CHAIR YOUNG:
- Well, I think you're right.
11 Our decision is not to be based on anything other than 12 the contention admissibility rule, and the case law 13 that's interpreted that.
And there's no question 14 about that.
And that's one of the reasons I wanted 15 you to address the comparison with the Pilgrim 16 contention.
17 MR.
RUNKLE:
I understand.
18 CHAIR YOUNG:
And to address the specifics 19 of whether the application had been specifically 20 challenged.
- However, obviously, a long time ago, I
21 did some work having to do with juvenile law, and one 22 of the problems that we dealt with was the fact that 23 sometimes kids would.fall between the cracks, so to 24 speak, when one agency or one source couldn't handle 25 a kid, and another, or a child, and they also didn't NEAL R. GROSS COURT REPORTERS.AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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meet the criteria for another agency - what we worked 2
on was trying to make sure that kids didn't fall 3
through the cracks.
- And, obviously, all of our 4
systems had great demands placed on them since 9/11, 5
and there's not perfection out there.
6 The purpose for discussing some of these 7
alternative means, I think, is really to just provide 8
information to the petitioners, who have some strong 9
concerns here.
And Mr.
O'Neill has provided the 10 reference to the current plan, and that may be helpful 11 to the petitioners, but that's sort of a separate 12 issue than whether or not we admit the contention 13 based on the law and regulations relating to 14 contention admissibility.
15 And since we're on this, I just wanted to 16 provide the opportunity for any information that might 17 otherwise be falling through the cracks, or that 18 people might not be aware of, to be provided, since 19 there is precedent for at least providing that 20 information in the interest of informing the public, 21 and letting the public know about ways to approach 22 issues.
Sometimes we get contentions that raise 23 significant concerns, but they're simply not within 24 our jurisdiction, and we have to keep that clear, as 25 well.
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So, with that said, is there anything 2
further that anyone would like to provide in the way 3
or information,, or any other questions that' we -can 4
address on this subject before we break for lunch?
5 MR.. RUNKLE:
There was just one statement 6
I think that will come up in the discussion this 7
afternoon.
'Mr.
O'Neill said that we can't address 8
anything in the current license base, and only aging 9
issues..
I think that's very relevant to the fire 10 protection contention, and --
11 CHAIR YOUNG:
We're going to get into 12 those issues when we address the fire protection.
13 MR.
RUNKLE:
Okay.
14
.CHAIR YOUNG:
Obviously, from our order, 15
'you may have gleaned that most of our questions, and 16 I think a lot of the discussion will focus on some of 17 the issues related to fire protection, and the 18 questions that we've raised, along with any related 19 ones.
Anything further?
Mr.
O'Neill, did you have 20 anything you wanted to --
21 MR.
O'NEILL:
No, ma'am.
.22 CHAIR YOUNG:
All right.
It's about 23 12:15.
Is that right?
Let's come back at 1:15, and 24 be ready to discuss Contention EC-I.
25 MR.
RUNKLE:
I missed the time, ma'am.
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CHAIR YOUNG:
1:15.
2 MR.
RUNKLE:
Yes, ma'am.
3 CHAIR YOUNG:
All right.
Thank you al1.
4 (Whereupon, the proceedings went off the 5
record at 12:06 p.m.,
and went back on the record at 6
1:18 p.m.)
7 CHAIR YOUNG:
On the record.
All right.
8 I think you can probably --
We're on the record, okay.
9 I think you can probably tell from our comments this 10 morning and from the questions that we sent you that 11 most of the questions we have really relate to this 12 technical contention about fire protection.
Among the 13 issues and I'll just sort of summarize them briefly 14 and then we'll hear your arguments and interrupt as 15 we've been doing if we have questions, but among the
.16 issues are whether the contentions and contentions 17 relating to fire protection are within the scope of 18 license renewal, whether the contention brings in 19 aging issues and then the relevance of this language 20 from the standard review plan suggesting that the 21 staff reviews whether there's a reasonable assurance 22 that licensed activities will continue to be conducted 23 in accordance with the current licensing basis during 24 the renewed license term.
25 And if as the Commission said in Turkey NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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Point the scope of adjudicatory hearings are the same 2
as the scope of the staff's
- review, whether 3
notwithstanding aging issues, the question of whether 4
the fire protection activities associated with the 5
parts raised by the -contention, whether those will 6
continue to be conducted or will be conducted in the 7
license renewal term in accordance with the current 8
licensing basis.
If I left out a verb there, pardon 9
me.
And we've set out these questions and there are 10 other instances of language in *the standard review 11 plan both for the license renewal and for safety 12 analysis reports in
- general, their references to 13 license renewal in there we've been sort of looking at 141 and would like you all to address.
15 And then finally, the staff mentioned in 16 their response, I'm sorry, in the Director's decision 17 that there would be a license amendment proceeding at 18 any time at which the requirements for fire protection 19 were changed and the relevance of that to this 20 proceeding.
21 So just giving that sort of brief summary 22 to set the stage, we would like to hear from you on 23 these issues.
We could do this in one of several 24
- ways, I guess.
The first question would be --
I tend 25 to think that it might be better to address all of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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-issues together',
but the last one is sort of 2
separable.
So we could address the different issues 3
separably.
Do the parties have any viewpoint on that?
4 Well, then let's just go ahead with all of 5
them and we'll -ask the Petitioner to start here for us 6
-and then we'll probably have questions as we go for 7
all of you.
8 MR.
RUNKLE:
Thank you.
- Well, as this 9
contention was developed, the parties and several 10 other parties besides the Petitioners had submitted a 11 2206 petition to the Commission on the fire protection 12 rules and this contention in large. part reflects the 13 same allegations in the 2206 petition with basis in 14 fact and the same basis in law.
15 And rather than to go into all the details 16 of what is in the 2206 petition, it's apparent that at 17 least since 1989 the Shearon Harris Plant has been out 18 of violation of the fire protection rules.
19 CHAIR YOUNG:
In violation?
20 MR.
RUNKLE:
Yes.
In violation.
21 CHAIR YOUNG:
You said "out of violation."
22 MR.
RUNKLE:
Has been, yes.
23 CHAIR YOUNG:
Out of compliance.
24 MR.
RUNKLE:
Out of compliance, yes.
25 Excuse me.
Has been out of compliance with the fire NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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protection rule Since 1989 and that over the years 2
there has been a lot of documents and a lot of actions 3
by the NRC staff to correct the problem, several 4
directions and there was even some consent orders 5
entered into with some of the other reactors, but 6
CarOlina Power and Light, now Progress Energy, has 7
made continual promises that they would come in 8
compliance with the fire protection rules.
9 They have not and the way that this has 10 been handled by the NRC staff is to allow them --
They 11 have this sort of discretionary enforcement and as 12 long as they're making the promises that they will 13 come into compliance, they can do that.
So we brought 14 this as a 2206 petition.
They are out of compliance.
15 We want to have enforcement action.
16 Between the time that we filed the 17 petition and the present time the Director has given 18 a decision.
There is other information that might 19 come out between now and the hearing.
My 20 understanding is that the Government Accountability 21 Office is doing an investigation of how the NRC has 22 handled the fire protection issues at Harris and some 23 of the other plants in the same situation.
24 So there's been a lot of activity around 25 this issue and of the issues that we've presented to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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this
- Board, it's really the one that's been most 2
fleshed out because there's been a
lot of 3
documentation.
There are reams and --
As we've cited 4
in the petition and also in the reply, there have been 5
several documents that have been filed and they've 6
been, I think, very adequately referenced in citations 7
to primarily NRC documents and to a lesser respect, 8
Progress Energy documents that they're out of 9
compliance.
They've been out of compliance for 20 10 years.
11 So in bringing the contention to the 12
- Board, there are really two issues.
One is since 13
- 1989, so 18 years, if they've been out of compliance, 14 can they show that they will be in compliance in 2027 15 and through the time period between 2027 and 2047.
16 There has been no time schedules, no assurances, that 17 no meaningful --
In the record as far as we can tell, 18 that they will be in compliance in
- 2027, that these 19 problems will continue to reoccur, the reliance on 20 unlawful installation of the cables that are important 21 for fire protection, these manual actions that have 22 never been analyzed, never been tested, other kind of 23 activities around the plant to do fire protection.
24 There has been no reasonable assurance at this point 25 that they're in compliance now or that they will be in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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compliance for the time period for the relicensing.
2 So I
want to address the reasonable 3
assurance because I think that's an important part and 4
as we sort of walked around it in this morning's 5
discussion, there is this presumption of compliance in 6
the NRC rules.
in looking at the '95 Statement of 7
Consideration, the regulatory process provides a
8 reasonable assurance that there is compliance with 9
current license basis, the CLB.
And this reasonable 10 assurance, I
- think, echoes through the rules.
We 11 think that one of the primary determinations that this 12 Board has to make is that the plant is in compliance 13 and will be in compliance during the period for the 14 relicensing.
15 There has to be some kind of reasonable 16 assurance that the way things are going now that there 17 is compliance.
In looking at the 2005 Review Plan 18 which is that NUREG 1800, it gives us really the scope 19 of the review and it
- says, "In addition to the 20 technical information under 10 CFR 54.21, general 21 information and other technical specification changes 22 and environmental information."
And to quote, "the 23 application must be sufficiently detailed to permit 24 the reviewers to determine (1) whether there is 25 reasonable assurance that the activities authorized by NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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the renewed license will continue to be conducted in 2
accordance with the CLB" and if they're not in 3
compliance with the CLB now and there's no assertion 4
or even time schedule that they will be in compliance 5
with the CLB, we don't see how this Board can make its 6
determination that there's a reasonable assurance that 7
they will be in compliance later on, sometime in the 8
future.
9 And especially with this fire protection 10 because it's been so well documented and it's been the 11 subject of the staff investigation that was part of 12 the Director's decision in
- 2206, they're out of 13 compliance.
They've been out of compliance.
The NRC 14 staff has not done its job to ensure that they will 15 come into compliance.
16 There's been a lot of directives.
There 17 have been a lot of memos.
There have been a lot of 18 notices about coming into compliance.
There have been 19 proposals for changes of rules to change the fire 20 protection laws and to this date, they're not out of 21 compliance.
I mean I think that's well shown.
The 22 Director's decision talks about being out of 23 compliance since 1989.
24 JUDGE LAM:
Excuse me.
I'm going to 25 interrupt, Mr.
Runkle.
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some concrete-examples of this noncompliance and in 2
whatever you've been talking about and that you're 3
saying?
4 MR.
RUNKLE:
Yes.
In looking at the 2206 5
- petition, the primary requirements for the the 6
primary rules are qualified three hour fire barrier 7-system.
This is for the electric lines in the 8
conduits.
So a three hour fire protection barrier or 9
a one hour barrier plus smoke detectors and sprinklers 10
- or a minimum 20 foot separation.
11 At Harris it has relied on the hemic 12
- systems, the HT systems and a number of these fire 13 barriers that don't last three hours.
They don't last 14 one hour.
It's been really --
It's been clear since 15 all the testings and all the directives from the NRC 16 that you cannot rely on these particular fire barriers 17 with any kind of reliance.
18 And in several places, there aren't a 20 19 foot separation between the electric cable treads.
20 That has been documented.
There are those kinds of 21 problems that have been throughout the plant and miles 22 of miles of these conduits don't have the adequate 23 fire barriers and they don't have the 20 foot 24 separation.
25 What Shearon Harris -- What they have done NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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at Shearon Harris instead to comply is these operator 2
manual actions and we've documented a couple of those.
3 I'm not sure if you are familiar with how those work, 4
but there are a list of tasks that an operator has to 5
do..
So if there's a fire, you pull out your book and 6
see what you have to do.
We have one part of one of 7
them documented in the report that was part of the 8
fire protection.
You have to place a
generator 9
circuit breaker control, then place a motor circuit 10 control, then run down the road and you have to run a 11 quarter mile to a closet and turn s.ome valve.
12 These operator manual actions have never 13 been assessed.
They've never been analyzed.
They've 14 never been approved by the.NRC.
We don't know if they 15 work.
We don't know if they make the problem worse.
16 It's this kind of reliance on these unapproved 17 There was a rulemaking a couple years ago by the 18 industry to try to get the operator manual actions as 19 part of the rules as a substitute for the three hour 20 barriers and the 20 foot separation.
The NRC said, 21
'No.
"We're not going to change the rules and allow 22 those."
So this thing has been going on and 23 everybody, I
- think, understands that you can't 24 substitute these unanalyzed, unapproved actions for 25 the fire protection rules.
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So at this point with the Director's 2
decision which we incorporate by-reference that 3
they're out of compliance and-the relevancy, I think, 4
to this Board's decision is they've been out of 5
compliance for 18 years.
Will the.y be in compliance 6
from now until when their licensing expires and is 7
there any reasonable assurance given what has happened 8
over the last 1.8 years, will they be in compliance 9
with fire protection rules from 2027 to 2047?
10 We don't think so.
We think it's a matter 11 for a hearing.
There are factual allegations.
I'm 12 sure my colleagues here will talk about plans that 13 they have in place now to come into compliance with 14 FPA 805 or whatever the number is on 'that.
But those 15 kind of assurances have been made for the last 10, 15, 16 18 years that they will come into that and until there 17 is this reasonable assurance that there --
We think 18 that your determination should be whether there's a
19 reasonable assurance or compliance with the CLB today.
20 But certainly, there is no reasonable assurance given 21 the record on the fire protection that they will be in 22 compliance with the CLB during the period for the 23 relicensing.
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- 1.
because the Shearon Harris plant has been notified for 2
years that they're out of compliance and they have made numerous promises as in. the record and-as the 4
Director and the staff determined in-their decision.
5 There have been another lot of asserti-ons that they 6
will become into compliance.
Those have never been 7
met.
8 And so if they come into compliance in the 9
next five, eight, ten years, that may be one thing.
10 Let them come back for a relicensing application at 11 that time.
But if they're coming to you for a
12 relicensing today, they're out of compliance.
They're 13 going to be out of compliance for the next 20 years.
14 They're going to be out of compliance during the next 15 20 years.
16 You also asked a question about looking at 17 a specific section in the license renewal application 18 and looking at Section 2.3.3.3-1 which addresses fire
- 19.
protection, I think it's telling that in looking at 20 the system description which is on page 2.3-114, it 21 talks about what the fire protection system at the
- 22.
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certain types of fire
- barriers, i.e.,
fire doors and 2
penetrations for piping, electrical cable conduit and 3
HVAC ducts.
4 They're admitting that those are part of
- 5.
- the fire They are a very important part of the fire 6
protection system and as part of their 54.21 technical 7
review, they state that they are looking at the fire 8
protection system.
But if you will go along and look 9
at what's not in part of their technical review, they 10 don't look at the (5) certain types of barriers and in 11 particular, the electrical cable conduit and the 12 different cable separation.
There's no analysis of 13 that as part of their technical review.
14 So we know they're out of compliance.
15 They haven't looked at it as part of the relicensing.
16 There's no reasonable assurance that things are going 17 to change.
They haven't reviewed it to see if it's in 18 compliance.
19 I think the last point we really need to 20 address is whether this Board is required just to look 21 at aging in the technical information, whether just to 22 look at aging components and I need to go back to this 23 reasonable assurance.
We think that that's very much 24 a part of it.
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of compliance.
2 Now this, I don't think that this opens up 3
all possible licensing issues from the original 4
license that are now in the CLB..
But I think it opens 5
up those where you're out of compliance, that you have 6
a history of compliance and they're significant.
So 7
the reasonable assurance, I think, is that this plant 8
can be operated safety and protective of the public 9
health and the environment.
So once you --
If this 10 Board would adopt the presumption that the Plaintiff 11 is in compliance, then you can look at aging, look at 12 some of the aging issues.
13 For the certain types of fire barriers and 14 electrical cab le and conduits, there is an aging 15 component of that.
As the cables themselves age, 16 there's a breakdown in the sheathing and sparking 17 could cause a malfunction either to impair proper 18 shutdown or cause some kind of improper reading 19 somewhere or not work if you needed to shut down.
So 20 there's an aging component.
21 But we don't feel you even need to get 22 that far into the analysis.
This reasonable 23 assurance, I think, is telling in certain given the 24 NUREG 1800 restrictions so show that there is 25 compliance, that there's going to be compliance with NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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CLB.
In this instance, there isn't.
They've been 2
warned about it.
They have made promises to correct 3
the problem.
They have not done so and. so we can't 4
see that there's any assurance, let alone reasonable 5
assurance that this problem will be corrected by 2027 6
and I guess, at a hearing we could argue about whether 7
any plans to correct the problem will happen before 8
then or after then or what they're planning on doing.
9 But given the record and, it's fairly extensive after 10 the
- 2206, we don't see any assurances that this 11 problem is going, to be correct in the near future or 12 even in the long future.
13 Do you have any other questions?
I think 14 I've addressed the issues that you've laid out.
15 CHAIR YOUNG:
Well, the third one was --
16 I think the Director's decision mentioned page seven 17 and eight.
18 MR.
RUNKLE:
Oh certainly.
Let me --
19 CHAIR YOUNG:
The license amendment for 20 transition whenever there's a
petition for or an 21 application for a license amendment, then there would 22 be an opportunity to petition for a hearing and the 23 relevance of that to the admissibility of the 24 contention in this license renewal proceeding.
25 MR.
RUNKLE:
Okay.
As I understand the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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- Director, if they do change what rules they need to 2
comply on, there's a new procedure where you can look 3
at --
do a complete analysis and do fire rules and do 4
that instead of complying with the specific fire 5
protection
- rules, the barrier separation, the 6
different regulatory specific requirements.
If they 7
do go along that route after they do their.
8 investigation, they can change the practices.
That 9
would be a licensing amendment proceeding.
10 There is no reasonable assurance that 11 that's ever going to happen..
That's another promise 12 that that's one way that they could go ahead and get 13 into compliance if they go down that route.
Whether 14 they go down in one year, five years or 40 years, 15 there's nothing at this point.
We would feel. a lot 16 more comfortable on this contention if they had gone 17 through a licensing amendment and come into compliance 18 either with the rules as they stand now or with FPA 19 805 which is the analysis of all the different risks 20 and that kind of thing.
21 But we're here in 2007 and similarly to 22 what we talked about this morning as an opportunity 23 for us to have our issues heard, you can have your 24 2206 to have your things heard or we have something in 25 the future, some amendment proceeding.
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point, that proceeding hasn't been started.
There's 2
no timetables for it.
There's no assurance that it 3
will ever happen and they will continue to be out of 4
compliance as they have been for the last 18 years.
5 JUDGE LAM:
- Now, Mr.
- Runkle, I am sure 6
you're familiar with our regulation. 54.30, matters not 7
subject to a
renewal review and it appears this 8
specifically talks about the issue that you are 9
dealing with now.
This part of the regulation tells 10 me if I read it correctly whatever deficiency under 11 the current licensing basis the licensee shall take 12 care of it with appropriate measures.
Therefore, 13 these type of matters are not permissible issues to be 14 reviewed in a license renewal proceeding.
15 How would, you --
I hear loud and clear 16 what you are saying.
How would you reconcile the 17 regulation as we have before us relative to what you 18 were saying that there was a deficiency for 15 years.
19 One would expect the deficiency to continue well into 20 the license renewal?
21 MR.
RUNKLE:
There is a
significant 22 difference between the 54.30, matters not subject to 23 renewal review.
We are not challenging whether 24 they're in compliance or not with the CLB, the current 25 licensing basis.
We took the advice, went to the 2206 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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route trying to address that they're out of compliance 2
today.
We're not asking for you to review whether 3
they're in or not in compliance today.
4 We're saying they're out of compliance 5
today after going through the 2006 process... They're 6
not going to be in compliance for the rest of the 7
initial permitting process.
But there is no 8
reasonable assurance given the history that they're 9
going to be in compliance from 2027 to 2047.
So those 10 are different things.
11 The actual factual basis and the proof for 12 both the 2006 and the large part at a hearing would be 13 fairly similar.
So show that --
We're not asking them 14 to come into compliance.
We're saying that you cannot 15 grant --
You can't relicense them until they are in 16 compliance or at least, there's a reasonable assurance 17 that they're going to be in compliance in the 18 relicensing period.
- And, see, that's a difference, 19 sir.
20 JUDGE LAM:
So what you're saying is based 21 on their history of noncompliance, you extrapolate, 22 based on that historical
- record, into the license 23 renewal period and make the allegation that they would 24 not be in compliance because of the historical, 25 factual performances and that's what you want us to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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consider.
2 MR.
RUNKLE:
Yes.
And we're not just 3
extrapolating that they're out of compliance.
We're 4
also extrapolating that there is no specific assertion 5
or no specific timetable or that they will be in 6
compliance.
So it's worse than being out of 7
compliance.
They're not even saying we will be in 8
compliance by such and such a
date or as a
firm 9
enforced guideline.
10 Now we've seen promises that have happened 11 a number of times in the past that haven't been lived 12 up to.
If there was a firm date that you can be in 13 compliance by. your next re-outing or we will shut down 14 the plant, that goes a long way to showing that they 15 will be in compliance.
But at this point, they're not 16 only out of compliance.
There's really no plan to be 17 in compliance.
So we're extrapolating, but we're also 18 saying that there's nothing between now and 2027 that 19 shows us that they will become in compliance.
20 CHAIR YOUNG:
Thank you.
Let's go to.the 21 staff.
Which one of you wants to address these issues 22 and wereally do want to hear from the staff on some 23 of these things.
I think it can be said that this 24 argument about the reasonable assurance that the 25 Applicant will be in compliance during the term of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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license renewal is something that I've not seen in 2
other' cases and it's based on the staff's own 3
directives basically in the standard review plan.
So 4
go ahead and give us your responses and arguments on 5
these..issues and we might have questions.
6 MR.
ROTH:
Yes.
Sure.
- Well, for starts, 7
the 10 CFR 54.30, the matter is not subject a renewal 8
review, that supersedes anything that.might be written 9
in the SRPs, whether it's the license renewal SRP or
- 10.
the other cited SRP that's a regulation and that's the 11 one that says their compliance is not within the scope 12 of the license renewal.
13 CHAIR YOUNG:
- Well, let's And this is 14 where we need to-probably start asking you questions 15 because I think what the Petitioners are saying as I 16 understand it is The thing that's not within the 17 scope of license renewal is the licensee's compliance 18 with the obligation to take measures under its current 19 license and what the Petitioners are saying is that 20 the reasonable assurance that they will be in 21 compliance, not take measures but be in compliance in 22 the license renewal term is a separate issue than what 23 they're going to do in order to get in compliance and 24 that the staff still looks and therefore we must still 25 at the likelihood that they will be in compliance NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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during the term of any renewed license that might be 2
issued.
3 MR. ROTH:
I think the Commission in a
4 rulemaking, in 1995 rulemaking, has directly spoken to 5
whether you're in compliance or not and the Commission 6
has said that the Commission does not contend that all 7
reactors are in compliance with their respective CLBs 8
on a continuous basis.
From that, it's reasonable to 9
say that it would apply both during the extended 10 license or. the renewed license and the current 11 license, the compliance part of it and that's 60 Fed 12 Reg 2247(3) and (4) or page 17 of our answer.
13 CHAIR YOUNG:'
I think the argument can 14 still be made that even though the Commission doesn't 15, assume that you're always in compliance that there is 16 still this responsibility on the part of the staff to 17 determine whether there is reasonable assurance that 18 they will be in compliance in the license renewal term 19 and the Petitioners have presented quite a bit of 20 support for their argument that there is not 21 reasonable assurance that they will be in compliance 22 during the license renewal term and I haven't heard 23 you zero in right onto that issue yet.
24 MR. ROTH:
- Well, what they're As I
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they had allegedly been out of compliance and there's 2
even enforcement discretions, we can say there's been 3
noncompliances that in license renewal space that the 4
Board's current review has to say how it's going to go 5
into the future.
6 Our review guidance goes for how to look 7
at items that are included in the scope of license 8
renewal, aging management, time limited aging analysis 9
- items, not the inspection process 20 years in the 10 future, 19 years in the future for this plant.
11 CHAIR YOUNG:
But what the staff's-12 standard review plan does say. is that the reviewers 13 have to determine whether there's a'
reasonable 14 assurance that the activities authorized by the 15 renewed license will continue to be conducted in 16 accordance with the current licensing basis in the 17 renewed term.
So that's still part of the 18 responsibility of the staff reviewers.
19 And the Commission has said that the scope 20 of adjudication is thesame as the scope of the staff 21 review.
I think recently another Board has said that 22 This is in the, let's see, July 11th memorandum in 23 order in the-Oyster Creek case.
Citizens may rely 24 upon relevant information arising from the issue in 25 that case.
To support their challenge to the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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frequency
-of the, it was an ultrasonic testing 2
monitoring program for underground pipes, I think, for S3 the period of extended operation.
4 So I hear you sort of going around the 5
outsides of the issue here, but.I don't hear you 6
really addressing the issue raised by this reasonable 7
assurance language in the staff's own review plan.
8 MS.
UTTAL:
Can you give us one minute?
9 (Off the record discussion.)
10 CHAIR YOUNG:
One of the reasons we sent 11 these questions out was because we-wanted you to be 12 able to be prepared to address these issues arising 13 out of the review plan.
14 MR.
ROTH:
And withing that, Your Honor, 15 I
hope that my answer was on point for that with 16 regards with the compliance, the concern, we don't 17 have any way to show that there's current compliance 18 and that's somehow within the Board --
19 CHAIR YOUNG:
I'm sorry.
You don't have 20 any?
21 MR.
ROTH:
Any way to show that we will 22 have the compliance in the future but lone current 23 compliance.
That's what we're hearing and that's what 24 the 2206 has alleged.
25 CHAIR YOUNG:
And I
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compliance is not on the table.
What's on the table, 2
what's been raised, is the future compliance during 3
the renewed term.
4 MR. ROTH:
And the concern there is to get 5
around the language in or to address the language that 6
shows. up in the SRP and the SRP 7
(off the record discussion.)
8 MR. O'NEILL:
Judge, Your Honor, could I 9
10 CHAIR YOUNG:
Very briefly.
11 MR.
O'NEILL:
Just something to help in 12 this area.
The SRP summarizes, actually the paragraph 13 in the SRP summarizes 14 CHAIR YOUNG:
Just a very short Hold 15 on.
Just a very short, brief, on-point statement you 16 can make.
But I don't want to open up to your 17 argument at this point.
We're hearing from the staff.
18 MR. O'NEILL:
I'm not.
54.29, if you look 19 at 54.29 and read it, you'll find that the language in 20 the standard review plan summarizes that but it 21 doesn't include the last charter which if you read it 22 puts it in better context and gets you out of the do 23 hoop that we're in.
24 CHAIR YOUNG:
Okay.
You can make that 25 argument when we get to you.
Thank you.
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MR.
O'NEILL:
I'm just trying to 2
CHAIR YOUNG:
Thank you.
3 (off the record discussion.)
4 MR.
ROTH:
And, Your Honors, on page 16 of 5
our answer,; we addressed the 54.29 already and as the 6
counsel for the staff or, pardon me, the counsel for 7
the Applicant has said, there's-the standard for 8
renewed license and the future assurance of compliance 9
during that renewed term is not one of the standards 10 for issuance.
That reasonable assurance that 11 activity's authorized will continue, to be 12 CHAIR YOUNG:
Repeat what you just said 13 and could you speak up a little bit or hold the mike 14 a
little bit closer because you're speaking very 15 softly.
16 MR.
ROTH:
- Well, we mentioned 54.29.
We 17 cite that already in our answer and within 54.29, my 18 reading of it, is if there is reasonable assurance 19 that an activity is authorized by the renewed license 20 will continue to be conducted in accordance with the 21 CRB of the current licensing basis.
For the assurance 22 part of it, if we get to the Director's decision on 23 that, the Director's decision describes what the staff 24 is doing and what the Applicant is doing to bring 25 itself within compliance and also mentions the planned NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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June 2008 license amendment where it transitions to 2
its new fire protection program under 54.30(c).
3 I would assert that if the concern is that 4
we don't have anything right now that would overcome 5
the allegedly 18 years of noncompliance, that the 6
Director's decision is describing how the compliance 7
is going to occur.
8 CHAIR YOUNG:
But that, I mean, in terms 9
of this proceeding, what's in the Director's decision 10 about how this is going to be addressed is not --
That 11 almost goes to the merits of the contention in this 12 proceeding and I don't think you're saying that the 13 Director's decision would be binding in some way.
- 14.
MR.
ROTH:
No, but I believe the concern 15 is how is the demonstration of current license 16 compliance, how is that going to be shown 20 years 17 from now that they're going to be in compliance for 18 issuing a renewed license.
19 CHAIR YOUNG:
But what I'm saying is that 20 your argument that the Director's decision explains 21 that seems to me to go to the merits of the question 22 of how it's going to be shown, doesn't it?
23 MR.
ROTH:
Yes, that would somewhat go to 24 the merits, Your Honor.
25 JUDGE LAM:
Now if I may interrupt, Mr.
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Roth, the way I read 54.29, it appears to support the 2
Petitioner's reasoning.
The way I read 54.29, it says 3
for the renewal of a license to be issued there must 4
be reasonable assurance that the activities authorized 5
by the renewal license would continue to be conducted 6
in accordance with the CLB.
The Petitioner made the 7
allegation that there's no reasonable assurance that 8
the renewal license would continue to be conducted in 9
accordance with the current CLB because right now the 10 CLB is not compliance in terms of fire protection.
So 11 when you point us to 54.29 for guidance for denying 12 the Petitioner's contention, do you have a different 13 interpretation of how 54.29 should be read?
14 MR.
ROTH:
- Well, let me jump to Turkey 15 Point which I think will help us figure out what that 16 regulation is requiring and Turkey Point which the 17 order reflected, not the order, the order on this 18 question says that if during a review there is not 19 reasonable assurance during the current license term 20 that activities will be conducted in CLB.
The 21 licensee will take measures under its current license 22 to ensure the intended functions of those systems, 23 components or structures will be maintained in 24 accordance with the CLB throughout the license.
25 To me what that says is that if they have NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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the current issue that that's what stabilizes the 2
current issue that that is outside the scope of 3
Turkey Point goes on to say the 4
adequacy of these measures for the current license is 5
not within the scope of license renewal.
To me, at 6
Turkey Point, the Commission is saying that if we find 7
an issue, the fire protection is noncompliant, that 8
that's addressed currently.
It's not allowed to be 9
separated off into the renewed license and 10 presumptively if this was the last day of license 11 renewal for the last day of the current license, I
12 guess I withdraw that comment.
That's too much 13 speculation.
14 CHAIR YOUNG:
I think the argument you may 15 want to be making based on what Mr.
O'Neill pointed 16 out is that the reasonable assurance language about 17 the activities authorized by the renewed license will 18 continue to be conducted in accordance with the 19 current licensing basis is that that is limited to 20 managing the effects of aging, time limited aging 21 analyses.
Was that your argument?
22 MR.
O'NEILL:
Precisely.
That's what it 23 says.
24 CHAIR YOUNG:
Okay.
So maybe that's where 25 we need to focus and I want to hear from you, Mr.
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Runkle, on that againý, too.
But 2
JUDGE LAM:
Is that what it says?
I 3
didn't I only see after the period the regulations 4
says "These matters are" and then proceed to list two 5
of them.
6 MR.
O'NEILL:
I'm sorry, Judge Lam.
The 7
word "matters" is in the first line and so if you read 8
the entire, beginning with "matters.'
'.With respect 9
to the matters identified in this-paragraph'i that's 10 what the license renewal is all about.
There is a
11 standard and to make it crystal clear, it says what is 12 it that we're. looking at.
These matters are one and 13 two, where if you go to 54.3.0, matters not subject to 14 renewal review, it makes it very clear that what isn't 15 subject to it which is what Turkey Point said.
16 So I believe, and we can also go through 17 other parts of the standard review plan and find that 18 it is clear later than it is in the introduction 19 because it's consistent with the rules and the rules 20 do not allow you to come in with the rebuttal 21 presumption and the reasonable assurance that between 22 2027 and 2047 that the licensee is going to meet the 23 current licensing basis as part of the staff review.
24 You can't get from here to there.
25 CHAIR YOUNG:
Okay.
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JUDGE LAM:
Now you say the first line.
- 2.
First line of what?
54-.29?
3 MR.
O'NEILL:
A).
Actions have been 4
identified --
5 (Off the record comments.)
6 JUDGE LAM:
Okay.
7 MR. O'NEILL: That's where "matters" comes 8
in.
So that the predicate for matters.
9 JUDGE LAM:
Okay.
Thanks.
10 CHAIR YOUNG:
Let me -- Going back to the 11 staff.
Let me ask the staff and if you need to ask 12
- the people who are here with you who do the actual 13 review or were in charge of the actual review, feel 14 free.
But what --
On fire protection, just looking at 15 the section, the part of the application.
Hold on.
16 Let me find the part of the application that has to do 17 with fire protection.
I had it a moment ago.
There 18 are too many papers here.
Right?
19 (Off the record discussion.)
20 CHAIR YOUNG:
Here it is.
All right.
I 21 guess this is where we get to the parts of the 22 application.
Looking at the discussion of fire 23 protection in the application --
And Mr.
Runkle made 24 some reference to aging issues to the extent that it's 25 necessary to consider those, but I think he argued NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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that you don't even have to get to that point.
But 2
let's assume we do.
The part of the application that 3
deals with fire protection, at least, it doesn't leap 4
out at you which parts or how all the parts that-are 5
discussed in that section are related to aging in some 6
way.
And so what does the staff do not just with this 7
plant, but I was going through trying to make space in 8
my office recently and found these 20 volumes of the 9
case file from the McGuire Hobble license renewal and 10 noticed that fire protection was throughout that.
11 What does the staff review in terms of 12 fire protection and how do they separate out those 13 issues relating to fire protection that are related to 14 aging and that are not related to aging and which ones 15 do you contend Do you contend that all presumably 16 based on the argument that Mr. O'Neill just began to 17 make that's based on 54.29 that the only things the 18 staff should be reviewing are those things related to 19 aging?
I'm not sure how many times the word "aging" -
20 I think it did appear at least once.
But does the 21 staff do other than this case, in other cases, on fire 22 protection?
What does their review consist of?
23 (Off the record discussion.)
24 MR.
ROTH:
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answer.
2 CHAIR YOUNG:
Okay.
3 MR.
ROTH:
But before doing
- that,
.4 regarding aging, that is the focus of the license 5
renewal is the aging management issue.
6 CHAIR YOUNG:
Right.
There is no question 7
about that and so you could make the argument, but 8
there's no question that aging is the focus of license 9
renewal.
The Commission has said that and the rules 10 say that.
This issue of reasonable assurance is not 11 something that generally comes up and that application-12 itself does not appear to tie these issues really 13 closely to aging and the Commission also said in 14
- Turkey Point that the scope of what we look at in an 15 adjudication proceeding is the same as what the staff 16 reviews.
So that's why I'd like some elucidation on 17 what it is the staff reviews and first generally and 18 then as it relates to this particular part of the 19 application and then there may be other questions.
20 But do you want to take a break to talk to your 21 people?
22 MR.
ROTH:
Sure.
23 CHAIR YOUNG:
Okay.
Let's take ten 24 minutes and then we'll come back.
Thank you.
Off the 25 record.
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(Whereupon, the foregoing matter went off 2
the record at 2:10 p.m. and went back on the record at 3
2:28 p.m.)
4 MR. ROTH:
And well, your Honor, I believe 5
the question is, how is the review done, both here and 6
at other sites.
7 CHAIR YOUNG:
On fire protection, right?
8 MR.
ROTH:
On fire protection.
9 CHAIR YOUNG:
And what does it include?
10 MR.
ROTH:
Within the NUREG, 1800 Rev 1 11 which is the Standard Review Plan for license renewal, 12 it describes an overall process for our reviews.
13 Within that, the Applicant submitted to us what they, 14 think was within the scope.
Our inspectors will then, 15 our reviewers would interview and decide, is some 16 CHAIR YOUNG:
I'm going to have to ask you 17 to speak up a little bit and a little more clearly.
18 I'm losing some of your words.
19 MR.
ROTH:
I'm sorry.
20 CHAIR YOUNG:
And also, if you could help 21 me out by when you refer to the review plan, to point 22 me to specific parts of it.
23 MR.
ROTH:
- Well, just overall before 24 getting to the specific part, the first step is, as I 25 understand it, is everything properly scoped? Did the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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applicant identify the items within -- that are within 2
the scope of license renewal?
Did they omit something 3
that should have been within the scope of license 4
renewal?
And our staff review that based on their 5
the available documentation, along with-review with 6
the plant drawings, of basis documents and in light.of 7
NRC's other guidance and the staff's experience, our 8
written guidance on that is
- again, NUREG 1800.1, 9
getting to the and pardon me, after the scoping 10 review, what if we look at something and we think that 11 something should have been in scope and they said it 12 wasn't?
13 What if age related degradation of a fire 14 barrier we thought should have been in scope and the 15 applicant did not identify-that?
And we would ask 16 that in an RAI and say, "Why isn't this item in the 17 scope and the Applicant would respond to us and tell 18 us why they think it's not in scope and, perhaps, they 19 would put it in scope and the staff would go from 20 there.
21 CHAIR YOUNG:
RAI is capital R, capital A, 22 capital I, by the way.
Go ahead.
23 MR.
ROTH:
After the scope meeting and 24 screening results, they would also review the actual 25 aging management programs to decide is are the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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items being managed appropriately for aging.
And this 2
is just generically, not necessarily specific to fire 3
protection.
And again, the details are in the SRP, in 4
the Standard Review Plan.
We also look at the time 5
limiting aging
- analysis, meaning something, was 6
something in-the plant only actually good for 40 7
years?
Did we had some analysis on it that said that 8
it wouldn't last longer than 40 years?
Are these 9
items properly captured and identified.
The staff 10 have their guidance and technical documents to assist 11 them with that.
12 Getting to the fire protection specific 13 portion of it, bear with my while I search through 14
- here, on page --
if you have the SRP pulled up, on 15 page 2.2-3, there's an example they provide where it 16
- says, "The applicant did not identify a
fire 17 protection pump house that is within the scope of 18 license renewal".
The reviewer might review or may 19 review the plant's commitments to the fire protection 20 regulation to verify a particular structure does not 21 perform any intended function at the plant.
22 MR.
O'NEILL:
Sorry, what page was that?
23 MR.
ROTH:
2.2-3.
- Now, we don't have our 24 fire protection-experts here today.
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manager and so the actual people who are doing the 2
review specific to fire protection aren't~here to tell 3
me exactly what they're doing.
4 In a general --
I'm searching through the 5
SRP.-
And I-'m looking for items where it's reviewing 6
fire protection just for compliance at the outside of 7
aging related.
8 CHAIR YOUNG:
I'm sorry.
9 MR.
ROTH:
I'm looking --
as I'm looking 10
- here, I'm searching through this plan of fire 11 protection looking for items that would support the 12 staff having to review for non-aging related 1.3 compliance 20 years in the future.
As I understand it 14 was the issue that --
15 CHAIR YOUNG:
The question is what do they 16 do?
17 MR.
ROTH:
And for that, they --
18 CHAIR YOUNG:
I mean, what do they do on 19 fire protection?
20 MR.
ROTH:
The fire protection is going to 21 be not treated any special way from the other 22 programs.
It's going to be were the items identified 23 within scope?
Did they miss a fire barrier?
Was it 24 a passive item that should have been reviewed to see 25 how it's aging missed?
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scope?
2 JUDGE LAM:
I would like to hear you 3
finish your
- thought, Mr.
- Roth, on when you're 4
searching for fire protection non-related to aging, 5
what were you going to say?
6 MR.
ROTH:
Yeah, well 7
CHAIR YOUNG:
Sorry.
8 MR.
ROTH:
Yeah, well, what I'm looking 9
for is to try to find something that says that we're 10 looking for non-aging related fire protection issues 11 within the Standard Review Plan and I'm not locating 12 any item that says that we're verifying a non-aging 13 related issue relative to fire protection and license 14 renewal.
15 JUDGE LAM:
You did not find any.
16 MR.
ROTH:
That's why I'm searching 17 through right now through the SRP.
18 CHAIR YOUNG:
How are you looking for that 19 by the say, just 20 MR.
ROTH:
I have the documents, a pdf 21 file of it and I'm searching for the word "fire 22 protection",
and skimming it as I'm going here.
23 CHAIR YOUNG:
Okay, but --
24 MR.
ROTH:
It's an active search right 25 now.
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CHAIR YOUNG:
Right, what I was trying to 2
ascertain was how you were separating out aging 3
related and non-aging related in your search.
It 4
sounded as if you were looking for things *that were 5
non-aging related and I didn't know how you were going 6
to separate it out.
Would that be helpful, to go to 7
the Applicant and then come back to you?
- 8 MR.
ROTH:
Certainly.
9 CHAIR YOUNGG:
Did you have anything 10 further to --
11 MR.
ROTH:
- Well, just on* the contention 12 itsel-f, back to the heart of the issue, the license 13 renewal, I would like to point that in the actual 2206 14 petition prior to the license renewal application 15
- existing, the petitioners, two of them were 16 signatories on the 2206 petition said that the NRC 17 should not accept a license renewal application until 18 these compliances are addressed.
That was before 19 there was any application for them to do a review.
So 20 clearly their concern is not a concern with the actual 21 application.
22 There's no deficiency that they were 23 concerned about there.
It's instead an attack on the 24 NRC's rules, saying that they --
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and basis prior to accepting a
application.
And such attack' is an impermissible 3
attack on the regulations and outside the scope.
4 CHAIR YOUNG:
Okay, you sort of switched 5
off the specific question of what's included in the 6
review, in the fire protection review.
7 MR.
ROTH:
- Yes, that's right.
And 8
certainly So, the goal to get back to how we are 9
reviewing the licensees, pardon me, the petitioner's 10 petition and that is a
concern with the current 11 licensing basis with current fire protection issues 12 rather than a concern than any aging related items and 13 the application.
14 CHAIR YOUNG:
Okay, is your switching over 15 to that an indication that you have no further 16 information on what the staff does to review the fire 17 protection aspects of the application and to review 18 fire protection generally as it relates to license 19 renewal?
20 MR.
ROTH:
My understanding, your Honor, 21 is that we were going over to the Applicants and 22 during that time I was going to continue discussions 23 with the staff to --
24 CHAIR YOUNG:
- Okay, we were going to go 25
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that we were on.
What confused me was that you 2
switched to another issue and I didn't understand what 3
happened to the original question.
4 MR.
ROTH:
That's --
back to the gist of
- 5.
our argument, that's quite correct.
We're back to the 6
thrust of our argument rather than the specific 7
details but we'll get back to those after I consult 8'
with staff more; 9
CHAIR YOUNG:
How much more argument do 10 you have on do you want to just finish your 11 argument?
Is that what you were basically asking 12 for?
13 MS.
UTTAL:
No, I don't think he was 14 asking for that.
We will defer to the Applicant while 15 he continues his --
16 CHAIR YOUNG:
- Okay, why don't you then, 17 moving over to Applicant's counsel; address one, what 18 is what you've included in the fire protection --
19 in the application relating to fire protection and 20 what you understand that --
what you understand the 21 staff's review to be?
What do you have to provide to 22 the staff?
23 MR.
O'NEILL:
What I propose to do is 24 point out those sections of the application, license 25 review application, that discuss aging management and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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fire protection.
That is what every system, structure 2
or component that is discussed in this application is 3
screened to determine whether or not aging management 4
applies and then discusses how it will be addressed.
5 Fire protection is no diffetent than any 6
other system in that -regard.
The fire protection 7
system is evaluated for its structures and components 8
and as to how aging management will be addressed to 9
insure that the component structures and systems will 10 function as required over the extended life.
That is 11 what this entire application is all about.
12 CHAIR YOUNG:
Right, right, but what I was
- 13.
trying to get some understanding of was how this 14 discussion at Section 2.3.3.31 I know the heading 15 has the word "aging" in it but the word "aging" is not 16 used frequently.
I did a search earlier on but I 17 don't have my computer here, is not mentioned very 18 much through the discussion of what the application 19 characterizes as being within the scope of license 20 renewal.
21 Just for example, on page 2.3-116 and 117, 22 that's where the Senate said, I think we quoted in our 23
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functional during and following design basis events",
2 and so forth.
And maybe I'm missing it but there 3
doesn't appear to be real specific tying of any of 4
these things to aging.
5 MR. Q-'NEILL:
- Okay, I would recommend that 6
we first look at page 2.3-1 which is the introduction 7
to the section which you quoted from.
8 CHAIR YOUNG:
- Okay, let's see, let me get 9
that.
Oh, okay, 2.3-1?
io MR.
O'NEILL:
- Yes, so this is the 11 introduction to --
12 CHAIR YOUNG:
I quoted from 2.3.3.31 but 13 let me find 2.3 --
say it again.
14 MR.
O'NEILL:
2.3-1.
15 JUDGE MIGNEREY:
You don't have a
16 numerical page number, do you?
1.7 MR.
O'NEILL:
No.
18 MR.
RUNKLE:
It's page 61 of 346 in the 19 PDF.
20 JUDGE MIGNEREY:
2.3?
21 MR.
O'NEILL:
It's Section 2.3.
It's the 22 heading.
So if you can just click on that, you can go 23 to that, too, you can link it.
24 JUDGE MIGNEREY:
Got it.
25 MR.
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So what this section is all NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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about is the screening of mechanical systems for 2
determining the compliments within the scope of 54.4, 3
that meet the requirements of 54.21(A) (1). which is, 4
"The identified compliments consequently require an 5
aging management review for license renewal".
That's 6
what this is all about.
Every section here, every 7
- system, is reviewed for that sole purpose.
8 CHAIR YOUNG:
All right, every section --
9 MR. O'NEILL: Every mechanical system that 10 is in this Section 2.3 --
11 CHAIR YOUNG:
Section of the application.
12 MR.
O'NEILL:
of the application is 13 reviewed for aging management.
It's screened to see 14 what will require aging management.
15 JUDGE LAM:
So anything related to non-16 aging phenomena is not part of the application.
17 MR.
O'NEILL:
It's screened out 18 effectively.
I mean, but what this is telling you is 19 how you get from here to there.
It is not part of the 20 application, that is correct.
21 JUDGE LAM:
So given how big the 22 application is, you do not put in this section --
you 23 do not put in aging related pluses on every line.
Is 24 that what this is here?
25 MR.
O'NEILL:
This gives the results of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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the screening.
Here's what was done and. then later we 2
will show you that results in tables.
3 JUDGE LAM:.
So my point is, you got 4
application.
5 MR.
O'NEILL:
Correct.
6 JUDGE LAM:
You :clearly spell out your 7
intent what the scope is which is only specifically
- 8 related to aging Out in the introduction.
And once in 9
awhile you will come back and re-emphasize that, but 10 there's no need for you to say well, this is aging 11 every line, every single line.
12 MR.
O'NEILL:
Because that's what the --
13 if you look back at 2.3, and you look at what the 14 regulations are talking about at 54.21(A) (1),
that's 15 what this whole thing is about.
It's not about 16 anything else.
17 CHAIR YOUNG:
Here's my question or a 18 question; I understand what you're saying.
What I'm 19 not following is are you also saying that the purpose 20 of having the Section 2.3.3.31 Fire Protection System 21 in the application is not to say what's relevant but 22 to provide a data base to screen to further narrow 23 down to what's relevant?
24 MR.
O'NEILL:
This says, here is the fire 25 protection system.
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CHAIR YOUNG:
I see your people nodding 2
back here.
3 MR.
O'NEILL:
Right.
4 CHAIR YOUNG:
Tell them to say it to you 5
so you can say. it on-the record.
6 MR.
O'NEILL:
- Well, I was going to say, 7
the answer is yes.
It says, 2.3.3.31 describes the 8
system, in this case fire protection system and talks 9
about the scoping and screening of the systems, talks 10 about what is considered to be subject to aging 11 management and it's a relatively short provision which 12 if you go to 2.3.117, then says, "Component subject to 13 aging management review".
And it begins to list in 14 broad terms those components subject to aging 15 management review.
16 Then you go onto the next system.
But 17 that doesn't end the discussion but that is the 18 summary under the screening of the mechanical systems.
19 CHAIR YOUNG:
Give me a second here.
20 MR.
O'NEILL:
Sure.
21 CHAIR YOUNG:
All right, maybe this takes 22 special skill to read but I guess I'm not --
it's not 23 self-evident that the purpose of the fire protection 24 section is merely to provide context for what's really 25 relevant and that the only things that are really NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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relevant at those things that start in Table 2.3.3-27.
2 MR.
O'NEILL:
That's not the end of the 3
story.
4 CHAIR YOUNG:
Part of the reason I say 5
that is because at the bottom of 2.3-116 where we 6
quoted it
- says, "The fire protection system is in the 7
scope of licensing because it contains",
and then it 8
lists four things.
Now 9
MR.
O'NEILL:
If it wasn't important to 10
- safety, you wouldn't have to worry about aging 11 management.
So you have to justify going through this 12 exercise.
That's all that does.
There is nothing in 13 this application other. than an evaluation, screening 14 and evaluation of aging management.
You have general 15 descriptions of what systems you're looking at and why 16 it's important and why you'd want to manage aging in 17 the first place, whether it's directly a safety system 18 or it is related to a safety system in some way, but 19 that's the whole purpose of this entire 1600 and some 20 page document.
21 JUDGE LAM:
So everything in there talk 22 about fires protection system, it's only put in there 23 for the sake of discussion of aging management --
24 MR.
O'NEILL:
Correct.
25 JUDGE LAM:
for us.
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MR.
O'NEILL:
So if you then --
2 CHAIR YOUNG:
No, it's only there for the 3
purpose of providing a context.--
4 MR.
O'NEILL:
A context of course.
5 CHAIR YOUNG:
for narrowing down to 6
those-smaller parts of it that you say are subject to 7
aging management or time limited aging analysis.
8 MR.
O'NEILL:
Sure this is the
- yes, 9
there are certain a
fire protection system has 10 certain structures, it has certain components, it has 11 certain materials.
- Now, in there what do we have to 12 look at and what need not be reviewed for aging 13 management?
That's the scoping.
And then we go --
14 then if you go further, you see more results.
So 15 perhaps you could turn to 3.3-34 which is 16 CHAIR YOUNG:
I'm sorry, say that over 17 again.
18 MR.
O'NEILL:
Page 3.3-34.
19 CHAIR YOUNG:
3.3, going back in other 20 words.
21 MR.
O'NEILL:
- Well, 3.3.
22 CHAIR YOUNG:
I'm sorry, 3.3,
- okay, got 23 it.
24 MR. O'NEILL:
Page 34.
This says, "Aging 25 management review results".
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because you can see it's only a little over a page, 2
and it's an outline of materials, environment, aging 3
effects 'requiring management, aging management 4
programs.
5 CHAIR YOUNG:
One moment, please..
6 MR.
O'NEILL:
And if you look under aging 7
management programs,.
for example, there's a
fire 8
protection program.
9 MR.
RUNKLE:
Excuse me, I'm getting a 10 little behind myself here.
Can you slow down just a 11 minute?
12 CHAIR YOUNG:
That's 3.3-34, right?
13 MR.
O'NEILL:
And 35, yes.
14 CHAIR YOUNG:
I guess one question I would 15 have is why you didn't make these points, or if you 16 did, where did you make these points in your answer?
17 MR.
O'NEILL:
- Well, I don't think we ever 18 thought was would get to this kind of discussion since
.19 it's outside the scope of license renewal.
But you 20 raised 21 CHAIR YOUNG:
Since what is outside the 22 scope of license renewal?
23 MR.
O'NEILL:
Fire protection is outside 24 the scope of license renewal.
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outside the scope of license renewal.
2 MR. O'NEILL:
Except for aging management, 3
excuse me, yes.
4 CHAIR YOUNG:
Okay, but did you say that?
5 MR.
O'NEILL:
- Yes, we said that and, of 6
- course, there was no issue raised with respect to 7
There was no section of this 8
license application that we were directed to that 9
fault was found with that we should address.
So I 10 wasn't going to just give you a
tutorial on this 11 entire application without-something with specificity 12 that I should be looking at.
That's why we didn't 13 address that.
14 JUDGE LAM:
- Well, there was a
- theory, 15 earlier theory that fire protection system, per se, 16 was mentioned in the application.
That anything we 17 did to the fire protection system, per se, is fair 18 game for license renewal since in the application you 19 talk about that.
Now, your clarification right now 20 has to do with well, we talk about fire protection 21 system in our application only for age management 22 review and nothing else.
23 MR. O'NEILL:
And indeed it's the same for 24 every other system.
Then the --
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I think there's probably NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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some middle ground that could have been reached in 2
your answer to the effect of although --
and let me 3
see if I
understand your argument.
Although the 4
contention raises fire protection which has some 5
aspects.which are related to aging, the contention did 6
not specify which aspects, if any, that it's talking 7
about are related to aging.
That was not the argument 8
that you made anyway.
Let's move on from that and 9
get to what you're saying at this point.
10 MR.
O'NEILL:
The Standard Review Plan 11 wasn't raised until the reply.
12 CHAIR YOUNG:
Right, but --
13 MR.
O'NEILL:
So therefore, there was --
14 that issue wasn't even on the table.
And we had 15 nothing to direct our answer to until that reply and 16 your question.
17 CHAIR YOUNG:
- Well, all right.
18 MR.
O'NEILL:
Then if you really want to 19 get to the bottom line substance, there are a series 20 of tables that began at page 3.3-261 and continue on 21 to 3.3-291, that summarized the aging management 22 evaluation of the fire protection system.
23 CHAIR YOUNG:
Before --
let's move back a 24 second to the previous page.
- Okay, "The following 25 fire protection system aging effects require NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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management change in material property".
All right.,
2 the contention mentions certain things, fire
- barriers, 3
I
- think, right.
So, I_ mean, to -have made a
4
- contention, there has to -be a certain, level of 5
specificity.
There needs to be a reference to the 6
application.
This contention does refer to the 7
application and it does talk about certain types of 8
fire barriers, fire doors and penetrations for pipes, 9
electrical cable, conduits, HVAC ducts and Mr.
Runkle 10 talked about, as an example, the cable covering being 11 subject to breaking down.
12 And I don't think--
13 MR. O'NEILL:
Your Honor, I don't read the 14 contention that way at all.
I've read a contention 15 that said 16 CHAIR YOUNG:
I'm just
- reading from the 17 contention.
I'm not interpreting it.
I'm reading 18 from it on page 19.
19 MR.
O'NEILL:
It has to do with present 20 compliance.
That's what the contention is all about.
21 CHAIR YOUNG:
Okay, look at page 19 of the 22 petition.
The second paragraph under support of 23 contention, "The present license renewal application 24 at Section 2.3.3.31 in the technical information",
25 which is where we got the section to look at --
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MR.
O'NEILL:
Sure.
2 CHAIR YOUNG:
"in the technical 3
information describes fire protection systems and as 4
encompassing a
number of systems including certain 5
types of fire
- barriers, fire doors and penetrations 6
for pipes, electrical
- cables, cbnduits and HVAC 7
ducts".
And then it goes on to discuss further, the 8
materials in some of the fire barriers.
9 Now--
10 MR.
O'NEILL:
Nothing about aging 11 management.
12 CHAIR YOUNG:
All right, but what I want 13 to ask you is just as a factual matter, when this 14 refers to change in material properties, do any of 15 those changes in material properties relate to any of 16
- these fire
- barriers, fire
- doors, penetrations for 17 pipe?
I
- mean, I
would assume that they would, 18 wouldn't they?
19 MR.
O'NEILL:
I'm sorry, where are you 20 reading change in material properties?
21 JUDGE MIGNEREY:
On page 3.3-34 of your 22 application.
23 MR.
O'NEILL:
Oh, I was looking --
you may 24 hit a level where I'm not sure I can answer whether or 25 not change in material properties would refer to a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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Some things, as you know, chemically 2
will change over time.
I don't know because I haven't 3
gotten to that level of detail, to say and answer the 4
question that a fire barrier a material of the fire 5
barrier will change in properties.
I don't know:
6 CHAIR YOUNG:
Okay.
7 JUDGE LAM:
Even if it does, even if it 8
- does, I don't know who our reading the contention in 9
TC-l would make that nexus.
I don't want to do 10 anybody's bidding.
How would the Board read TC-I to 11 make that direct 12 MR.
O'NEILL:
One of my colleagues has 13 brought to my attention that with respect to fire 14 barrier assemblies, what. Table 3.5.2-2 says is 15 reviewed 16 JUDGE MIGNEREY:
3.5?
17 MR.
O'NEILL:
3.5.2-2, the aging effect 18 requiring management is the loss of material and 19 cracking in the fire barrier.
So that is
-- there are 20 many tables actually throughout this.
I picked the 21 most largest groups which for every system and a lot 22 of systems will have fire barriers with respect to the 23 cables in those systems.
There will be a
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which will talk about how materials or components or 2
structures are managed for aging throughout the 3
renewed license life of the plant.
4 CHAIR YOUNG:
- Okay, let me see if I can 5
sort of recap something here.
- Now, I think probably -
6
- well, you tell me, had the contention gone on after 7
mentioning these certain types of fire barriers and 8
fire doors and so forth and so on, had they said, 9
"These are subject to aging management because of the 10 materials in them as demonstrated at Table 3.5, 11 whatever 12 MR.
O'NEILL:
I would have said, yes.
13 CHAIR YOUNG:
that you would have said 14 that that was in scope.
15 MR.
O'NEILL:
Right.
16 CHAIR YOUNG:
And in making rulings on 17 contentions, there is range --
there's a spectrum and-18 at one end a contention is not admissible.
It may not 19 even mention the application.
At the other end, it 20 would be the nature that I've just described to you.
21 This contention does mention the application, does 22 mention a section of the application, does specify 23 certain types of fire barriers.
It does not focus in 24 on aging.
It focuses --
25 MR.
O'NEILL:
Or what's defective about NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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the aging management program.
P 2
CHAIR YOUNG:
Right, it focuses on the --
3 whether these things are going to continue or going to 4
be in compliance in the term of the license renewal.
5 MR. O'NEILL:
Well, that doesn't say that 6
in the contention, your Honor.
That was new in this 7
argument.
This contention speaks only to the present 8
day.
This contention, as written, only says, "We 9
should not consider license renewal until we're in 10 compliance".
That was a revisionist's view of the 11 contention because of the Director's decision.
So we 12 didn't certainly address that because that was not the 13 contention.
14 CHAIR YOUNG:
I think you're right, that 15 that was the general --
the way you describe it was 16 the general crest of the contention but the extended 17 period of operation is mentioned at least in the 18 contention.
So I'm just trying to take a fresh look 19 at it based on the arguments you're making now.
20 JUDGE LAM:
So as you see it, Mr. O'Neill, 21 this contention as it stands, has two faults.
One, it 22 does not talk about aging.
- Two, it does not make any 23 allegation of how efficient the aging management 24 system is in the application.
25 MR.
O'NEILL:
There is no statement with P
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basis and specificity of what is deficient in aging 2
management for the fireprotection system or barriers 3
or anything else for that matter.
That's number one.
4 Number two, this is obviously not a time to discuss 5
the merits.
But let me --
if you read the Director's 6
decision, it does not support a basis for there is a
7 problem with reasonable assurance of public health and 8
safety with respect to the present fire protection 9
system at the Harris Plant.
10 Indeed, the two 11 CHAIR YOUNG:
I'm not sure I followed that 12 sentence.
Would you say it over again?
13 MR. O'NEILL:
Okay, I'm sorry.
The basis 14 that Mr.
Runkle said over and over again for his
- 15.
allegations that we are out of compliance and the 16 plant is not being operated safety, we had to listen 17 to that over and over again, there is no basis for 18 that.
What he argues is the basis is the Director's 19 decision.
The Director's decision carefully says why 20 the applicant or the licensee in this
- case, is 21 operating within public health and safety.
They've 22 done a safe shutdown analysis to show that the fire 23 protection system as it is presently operated, works 24 just fine.
So we could get into a long discussion of 25 what the licensing basis, current licensing basis but NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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it includes the use of AMC and MT (phonetic).
Indeed 2
we litigated this issue at the original licensing of 3
the. plant and the current licensing basis -has not 4
changed.
So there is no big, you know, we've been out 5
of compliance since 1989 and operating the plant.
If 6
we were, the NRC would obviously not be doing their 7
job and the Director's decision explains that --
8 CHAIR YOUNG:
All right, all right.
9 MR.
O'NEILL:
in careful detaiil.
10 CHAIRYOUNG:
All right.
11 MR.
O'NEILL:
No basis..
12 CHAIR YOUNG:
All right, slow down for 13 just a second.
I believe what the Director's decision 14 says, among other things is that, the applicant intends 15 to file a license amendment application at some point 16 in the future and that 50.48 says that licensees who 17 wish to use performance based methods instead of the 18 other requirements, fire protection requirements, 19 shall submit a request in the form of an application 20 for license amendment.
And it sounds at though what 21 they're concerned about, what the petitioners are 22 concerned about is that no license amendment 23 application has been submitted and that while there's 24 an intent to do it in the future, there's this interim 25 period where there's no compliance with either set of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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127 approaches.
And as I
understand it, what those 2
performance based methods are going to be is not --
3 has not actually been resolved at this point and 4
there's some dissension about that.
5
.So I think you're right, you were right in 6
your introduction to that last point, which is that we 7
don't necessarily want to get into the merits.
It 8
seems to me at this point, I
want to hear from 9
- everyone, but it seems to me at this point the 10 question is, whether the failure to tie the barriers 11 and other components or equipment to, specifically to 12 aging questions, to specifically challenge the aging 13 management of those, is the --
is becoming sort of a 14 determinative issue here.
15 Is there and I want to hear from you.
16 MR.
RUNKLE:
Your Honor, I may be able to 17 stop the argument.
I'd be glad to stipulate on the 18 record that the contingent does not address the aging 19 of the fire protection cables or conduits.
It 20 doesn't.
It goes into the reasonable assurance and 21 the lack of compliance.
22 CHAIR YOUNG:
- Okay, then --
23 MR.
RUNKLE:
We don't have an expert.
We 24 haven't brought that in front of you and if you would 25 rewrite the contingent to do that, we could not defend NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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it.
2 CHAIR YOUNG:
- Well, here's--
then it 3
takes us back 7-you're right, that does short-circuit 4
things.
'Then what that. does is it takes us back to 5
54.29..
6 MR.
RUNKLE:
- Yes, ma-'am.
7 CHAIR YOUNG:
And the fact that the 8
reasonable assurance that you"re talking about is 9
there limited is limited in that rule to the.
10 matters identified in paragraphs (A)*(1) and (A)(2),
in 11 other words, managing the effects of aging and time 12 limiting aging analysis.
13 MR.
RUNKLE:
- Yes, I've been looking* at 14 54.29 and I don't think it really effects our argument 15 that there's a preliminary determination that you have 16 to make that there's going to be a
reasonable 17 assurance of compliance.
I
- mean, we've, made our 18 argument on that.
19 CHAIR YOUNG:
- Well, let me ask you then, 20 the argument that Was made about the introductory 21 language of NUREG 1800 was that that was introductory 22 and that later on in the body of the NUREG it goes 23 into more specifics.
And indeed, the language that 24 you quote in your reply from NUREG 1800 from the 25 introduction, let's see, is broader but that the rule NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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limits that further to the aging managing the 2
effects of aging and time limited aging analysis.
3' Now, the next question I had for the staff 4
was, well, what does the staff review?
Does the staff 5
review only those things that are related to managing 6
the effects of aging and time limited aging analysis 7
or does the staff's review go --
is it broader than 8
that?
9 MR.
RUNKLE:
- Well, I think you 10 CHAIR YOUNG:
And we haven't gotten an 11 answer to that yet.
12 MR.
RUNKLE:
I think you mis-asked the 13 question.
The question is not what you review.
The 14 question should be what are you supposed to review.
15 And I think the..
16 CHAIR YOUNG:
- Well, that's another 17 question, certainly.
18 MR.
RUNKLE:
- Yeah, I think those are two 19 different questions because they'll I mean, what 20 they do may not be what they're required to do.
And 21 if you look at the NUREG 1800, that was promulgated 22 subsequent to the issuance of the Rule 54.29.
It's 23 the interpretation of what the means and may I suggest 24 that 54.29 is permissive, that may be issued by the 25 Commission but it doesn't not say what is the complete NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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review of the staff.
The complete review of the 2
staff comes under NUREG 1800 which is to look at.
3 technical information, general information, necessary 4
technical specification, environmental review and 5
going back to our reasonable assurance language.
And 6
whether they only look at. aging because, as the 7
applicant said, that's the only thing that they think 8
is that should be reviewed, and the staff is 9
- saying, that's the only thing they review, I think 10 that begs the question of what should they be 11 reviewing.
12 CHAIR YOUNG:
Okay, but let's back up a 13 second.
The reason for asking what the staff does 14 review is because the Commission has said that the 15 scope of an adjudicatory proceeding is the same as the 16 scope of the staff's review.
So the issue of what the 17 staff reviews may come into play and may bring into 18 play things that have otherwise been excluded by the 19 Commission in Turkey Point and in. its regulations.
So 20 when you ask what should the staff be reviewing, the 21 rules govern, the Commission's interpretation of those 22 rules govern.
23 Normally guidance documents such as a
24 Standard Review Plan, while they may be persuasive, 25 they're not binding on a licensing board for example, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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in making our rulings.
- Now, under sort of common 2
sensical or equitable or whatever kinds of principles, 3
and actually I once went to a presentation by the 4
former General Counsel of the NRC, Peter Strauss, who 5
now teaches administrative law at Columbia University, 6
arguing that the guidance document should, in fact, be 7
binding on the staff.
8 So, when you identified this paragraph, 9
and looking at Turkey Point saying the scope is the 10
- same, and you show us this broad paragraph that says 11 the staff needs to look to see whether let's
- see, 12 where there's reasonable assurance that the 13 activities, general open, authorized by the renewed
.14 license, will continue to be conducted in accordance 15 with the CLB, then that possibly opens this up further 16 than just aging issues.
17 But when you compare that to the rule, the 18 argument that the applicant is making that this is 19 sort of a summary of part of that rule and that the 20 rule goes into more detail later on and limits it to 21 the aging issues which the Commission has certainly 22 said and which has --
I mean, there's no doubt about 23 the fact that the Commission has probably limited the 24 scope of license renewal proceedings more narrowly 25 than in any other type of proceeding.
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does make some sense.
2 MR.
RUNKLE:
- Well, let me suggest though 3
that NUREG
- 1800, I
just quoted from sort of the 4
initial introduction, it's a
fairly substantial 5
document that is that has a whole lot of. other 6
things in it than just aging.
It's a
I think NUREG 7
1800 has like 1.800 pages to her.
8 CHAIR YOUNG:
Well, right, and that's why 9
I want to know --
I want to know what the staff's 10 review consists of but for example, on page 2.2-2 11 there are two references to acceptance criteria, "For 12 the applicant's implementation of its methodology to 13 be acceptable to staff should have reasonable 14 assurance that there has been on omission of plant 15 level systems instructors within the scope of license 16 renewal",
and then below that under Section 2.2.2.1, 17 at the end, "Systems instructors relied on a safety 18 analysis, and plan evaluations to perform a function 19 that demonstrates compliance with NRC regulations for 20 fire protection",
and then it gives a
cite 50.48, 21 Environmental Qualification PTS, Pressurized Thermal 22
- Shock, ATWS, I
don't know that one and station
.23 blackout and then it gives citations to the rules for 24 those.
25 I agree, we need to hear more from the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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staff on what the staff's review consists of and 2
whether it is strictly limited to aging issues, the 3
safety review or whether it's broader than that.
And 4
I think there's no question that this fire protection 5
issue is a significant issue..
The question is whether 6
there is authority for us admitting the contention 7
given that there's no reference to aging.
And I
8 thought you had a good argument, the argument in your 9
response that says, the language that you quoted from 10 the Standard Review Plan is sort of a
summary or 11 reference to a part of 54.29 but that 54.29 is more 12 specific and it's the rule that governs.
13 That argument makes sense to -- certainly 14 to an extent and it may end up foreclosing the 15 contention.
So I
think that's what you need to 16 address and in addition we need to hear from the staff 17 what their fire protection review does consist of.
18 MR.
RUNKLE:
I'm afraid that any further 19 argument I
give will just be rehashing -the same 20 ground.
I mean, I think our position is clear on 21 that.
We've briefed it out.
I don't have much more 22 in my quiver to send over you way.
I
- mean, our 23 argument has been made on that.
The staff the 24 determination, we think is a -- this presumption of a 25 reasonable assurance of compliance has to be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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addressed.
And that goes beyond the aging 2
requirements.
AndlI understand the limitations of 3
saying that we're not just looking at the, you know, 4
electrical conduits as they age.
That may even be a 5
generic.. problem, I don't know.
We don't have the 6
expertise or the you know, the expert affidavits.
7 You know, that --
if we would try to bring that up at 8
this
- point, we don't have the support and the 9
affidavit to really say, I mean, in the petition to 10 really make that argument.
Il JUDGE LAM:
Now.,
Mr.
- Runkle, do I
12 understand what you are saying?
Do I
understand 13 you're saying number one, you're willing to stipulate 14 contention number one has nothing to do with aging.
15
- Two, even if you were allowed to rewrite the 16 contention, even if, you have no technical expert to 17 support that contention related to aging?
18 MR.
RUNKLE:
Yes.
19 JUDGE LAM:
Thank you.
20 MR.
RUNKLE:
Because our issue is the 21 initial determination has to be whether there's a
22 reasonable assurance of compliance given the history 23 and projection into the future.
And that's the 24 contention.
And there are --
I mean, it's a legal 25 matter.
I mean, it's not based on we have the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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record in front of us that's all based on if I was 2
bringing it. to a hearing, you could take judicial 3
notice.
I mean, I think there's'substantive evidence 4
that can be presented on it, but it all goes to the.
5 basic legal argument of whether being out of 6
compliance now and not being in compliance at some 7
future date is relevant to the relicense.
3 CHAIR YOUNG:
I think the barrier that --
9 barrier, no pun intended, that you need to hurdle is 10 54.29 and what Mr. O'Neill pointed out, the limitation 11 of the reasonable assurance concept to managing the 12 effects of aging and time limited aging analysis.
13 MR.
RUNKLE:
- Well, and that's why --
14 CHAIR YOUNG:
So why don't you --
15 MR.
RUNKLE:
That's why the NUREG 1800 is 16 so important because that is the staff's 17 interpretation of their responsibility for reviewing 18 a relicensing.
And whether that's what they think 19 their responsibility is or not, or if that's what they 20 actually do as part of their review, that lays out the 21 scope of their review.
22 CHAIR YOUNG:
But if, in
- fact, let's 23 you know, I haven't gone through every line of the SRP 24 but if in
- fact, the introduction gives the general 25 principle and then arguendo in keeping with 54.29 in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., NW.
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the body of the NUREG goes into that with more 2
specifics, such that it is, in fact, limited to these 3
aging
- issues, which is the generally understood 4
approach to the safety review in all the license 5
renewal proceedings which the Commission went over in 6
Turkey Point, then I don't at this point,.
I don't 7
I'm not seeing any way that your argument that 8
there's a broader responsibility to look at reasonable 9
assurance than what's stated in 54.29, I'm not seeing 10 that.
The answer lies in the body of this and what 11 the staff tells us.
12 MR.
RUNKLE:
- Okay, I mean 13 CHAIR YOUNG:
And if you have anything 14 further to offer on that, you you know, the door 15 has been opened to the SRP.
If there's anything 16 further in there that we need to look at, we can look 17 at that.
But 18 MR.
RUNKLE:
But if the staff tells us on 19 the record the scope of their review as it relates to 20 fire protection, that's in the record.
And if that's 21 the --
if that's what they do as opposed to what they 22 should be doing, that's an appealable matter.
23 CHAIR YOUNG:
And also, you're arguing 24 what they should be doing.
What I don't --
I haven't 25 heard yet is the authority that there's anything other NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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there's anything to support that other than this 2
one statement in the introduction.
3 MR.
RUNKLE:
Oh, the --
I mean, I mean,, we 4
reference NUREG 1800 but it's a
fairly substantial 5
document that--
6 CHAIR YOUNG:,
- Right, I know.
7 MR.
RUNKLE:
Oh, do you have a Copy?
- 8.
CHAIR YOUNG:
- Yes, I do.
9 JUDGE MIGNEREY:
We do.
10 CHAIR YOUNG:
And we can take a break and 11 you're welcome to 12 MR.
RUNKLE:
No, my argument is out on the 13 table and that's what I've got.
14 MR. O'NEILL:
Judge Young, before you put 15 1800 away 16 CHAIR YOUNG:
We're'not putting it away.
17 MR.
O'NEILL:
there is one very 18 important-section which I
didn't have a chance to 19 mention, so I want to make sure it's on the record.
20 CHAIR YOUNG:
Okay.
21 MR.
O'NEILL:
It's 4.7.1.
22 CHAIR YOUNG:
Of?
23 MR.
O'NEILL:
Of 1800, page 4.7-1.
24 CHAIR YOUNG:
Okay, hold on just a second, 25
- 4.
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2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR.
O'NEILL:
CHAIR YOUNG:
MR.
O'NEILL:
CHAIR YOUNG:-
MR.
O'NEILL:
7.1.
That's near the end, okay.
4.7.1.
4.7-1?
-1 excuse me,
-1.
It's Section 4.7.1.
CHAIR.YOUNG:
limited aging analysis.
MR. O'NEILL:
review, third paragraph, can read it.
Other plant specific time And you look at the areas of I can read it to you or you CHAIR YOUNG:
"License renewal reviews" --
go ahead and read it.
MR.
O'NEILL:
"License renewal reviews focus on the period of extended operation.
Pursuant to 10 CFR 50.3, if the review is required by 10 CFR 54.21(A) or (C) show that there is not reasonable assurance during the current license term that. license activities will be conducted in accordance with the
- CLB, the licensee is required to take measures under its current license to insure that the intended function of those systems, structures or components are" CHAIR YOUNG:
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2, right?
2 MR.
O'NEILL:
No, because it's your 3
- question, I
- think, on page 2 was the introductory 4
language'.
5 CHAIR YOUNG:
Well, look on page 2 of 6
MR.
O'NEILL:
Oh, I'm sorry.
7 CHAIR YOUNG:
- Well, it's there. and 8
actually let me tell you one of the reasons for 9
putting that there.
10 MR. O'NEILL:
That's the one that goes to 11 what the review --
the scope of the-license renewal 12 review which then ties in with Turkey Point.
13 CHAIR YOUNG:
Right, okay, but read the 14 last sentence of that and this is an interesting 15 paragraph.
16 MR.
O'NEILL:
"The adequacy of the 17 measures for the term of the current license is not 18 withinthe scope of the license renewal vehicle".
19 CHAIR YOUNG:
Right.
It doesn't say the 20 adequacy or how well the licensee -
.thee compliance of 21 the licensee with the current licensing basis in the 22 term of the extended license is not within the scope 23 of the license renewal.
24 MR.
O'NEILL:
- Well, it doesn't say that, 25 you're correct.
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140 CHAIR YOUNG:
Right..
2 MR.
O'NEILL:
But it's also not what the contention was all about or is there any basis for.
4 such an allegation.
5 CHAIR YOUNG:
Well, let's..not change over 6
to that subject right now.
We're talking about this 7
language right *now and this
- language, actually, 8
reading it, at first one might take it to mean that 9
you can't look at whether the license will continue to 10 be in compliance with the CLB during the term of the 11 renewed license,, but then the.last sentence in saying 12 what's not within the scope of license renewal review, 13 limits it to the adequacy of the measures for the term 14 of the current license.
15 So one could argue that if that's what not 16 within the scope; then the adequacy of compliance 17 within the extended term; one could argue, would be 18 within the scope.
So, I mean, I think obviously --
19 MR. O'NEILL:
You're going to have to turn 20 it on its
- head, I guess, but 21 CHAIR YOUNG:
No, no, I don't think you 22 turn it on its head.
I think there's even a Latin 23 principle that means something to the effect of if 24 it's
- excluded, then it's not meant to be included 25 within the principle that you're --
that's a very poor NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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translation of it, but in any event, I
don't think 2
this necessarily supports your argument.
3 MR. O'NEILL:
Except to. the extent that 4
this as the introductory all have to be consistent 5
with 54.29.
6 CHAIR YOUNG:
But this thing, that you 7
quoted doesn't even reference 54.29.
It references 8
54.30.
9 CHAIR YOUNG:
- Well, 54.30 is that's not 10 included.
11 CHAIR YOUNG:
- Well, right, and then it 12 says what's not included is
- the adequacy of the 13 measures for the term of the current license.
So you 14
- know, I mean, I think the least that can be said is 15 that this is not a model of crystal clear drafting.
16 MR.
O'NEILL:
- Well, it's currently also i7 said that the contention that was proffered by this 18 petitioner which goes only to the current license term 19 is certainly not consistent with this language and 20 certainly with Turkey Point.
21 CHAIR YOUNG:
- Well, yeah, that's your 22 argument and you know, I'm not sure that it I think 23 the focus of it is, as you say, that the renewed 24 license shouldn't be granted until they can show that 25 they can comply with it now or some time in the near NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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future.
But there IS I don't think that it 2
completely leaves out any reference to the renewal 3
term.
So again, I think we get back to your-strongest 4
argument, the staff's strongest argument is relying on 5
.. 54.29 but as Mr., Runkle points out, NUREG 1800 is a
6 fairly large document and it may warrant further 7
consideration.
And again, I would-still like to hear 8
from the staff on is there anyone from the staff who 9
knows who can talk about NUREG 1800 and who can tell 10 us, unequivocally that there's nothing in here that 11 the staff reviews that has anything to do with 12 anything other than aging, for example.
13 MR.
ROTH:
It's our understanding tha.t 14 that's correct.
This isn't an aging review.
It may 15 be helpful, too, I want to go to a Commission Policy 16 Statement that addressed what the staff is looking at 17 in license renewal and that was in COI 98.18 which is, 18 "Policy and the Conduct of Adjudicatory Proceedings".
19 And in that the Commission wrote, and I'll just read 20 from that page.
21 CHAIR YOUNG:
Hold on a second.
I may 22 have that.
Let me just see if I do.
23 MR.
O'NEILL:
May I have the citation 24 again, COI?
25 MR.
ROTH:
COI 98.18.
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MR.
O'NEILL:
90?
2 MR.
ROTH:
98, that's from July 28, 1998.
3 CHAIR YOUNG:
- Okay, go ahead.
4 MR.
ROTH:-
in it the particular language 5
- says,
'The, scope of the proceeding;- and as the 6
consequence the scope of the contentions that may be 7
admitted is limited by the nature of the application 8
and pertinent Commission regulations.
For example, 9
with respect to license renewal, under the governing 10 regulations in 10 CFR Part 54, the review of license 11 renewal applications is confined as to matters 12 relevant to the extended period of operation requested 13 by the Applicant.
The safety review is limited to the 14 plant, system, structures and components as delineated 15 in 10 CFR 54.4 that will* require an aging management 16 review for the period of extended operation or are the 17 subject of an evaluation at the time limited--
of 18 time limited aging analysis".
So what's that--
19 CHAIR YOUNG:
What's the page number for 20 that?
21 MR.
ROTH:
- Actually, I have West law, one 22 second.
23 CHAIR YOUNG:
I think that was published 24 in the NRC Reporter, wasn't it?
25 JUDGE MIGNEREY:
Yes.
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MR.
ROTH:
- Yeah, and I just have to pull 2
it up here.
3 MR.
RUNKLE:
Can-you cite to your answer, 4
-your response to the initial petition?
Do you have a 5
page number there?
It might be easier to follow you?
6 MR.
ROTH:
I don't believe I cited 98.18 7
in my response if that's what you're looking for.
8 MR.
RUNKLE:
Well, then, your Honor, it's 9
hard for me to respond to a document that hasn't been 10 brought out on the table till today.
I'm sure that we 11 could all get on the Adams system and find all kind of 12 documents, but I just can't respond to some policy 13 statement from 1998 without at least a little bit of 14 warning.
15 MS.
UTTAL:
- Judge, I wanted to add --
did 16 you 17 MR.
ROTH:
Yes.
18 MS.
UTTAL:
I just wanted to add something 19 about the staff's review of these matters.
I think 20 that the scope of the staff's review would be borne 21 out by all the SERs that we have done in license 22 renewal space.
They only deal wi-th the aging issues 23 and the TLAA.
Even though they're fairly thick 24 documents, that's all you'll see there.
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the regulations also as to what we would be looking
- 2.
for.
3 CHAIR YOUNG:
But would you agree--
would 4
you agree
-that this introductory language in the 5
Standard Review Plan i~s pretty open-ended, and from 6
the outside looking in, that it would make sense to 7
read it like the petitioners are reading it?
8 MS. UTTAL:
Which particular paragraph?
9 I'm starting to lose things.
10 CHAIR YOUNG:
The one that we quoted in 11 our question from the introduction.
I'll try to find 12 that.
13 MR.
ROTH:
And I believe the cite you're 14 looking for would be 48 NRC 18 at 22 but I'm looking 15 at a West law version, so I'm looking at the asterisk 16 numbers to make sure I have --
17 JUDGE MIGNEREY:
I'm not doing anything 18 else.
19 CHAIR YOUNG:
Okay, hold on just a second.
20 I'll try to find this page from :-
all right, it's the 21 one we quote.
22 MS.
UTTAL:
- Yeah, I found it, on page 2 of 23 the Board's order.
24 CHAIR YOUNG:
Right, right.
25 MS.
UTTAL:
I don't think you can divide NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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the thing up like that.
What's under review in 2
license renewal space is the age, the.aging of the 3
components and the limited environmental issues.
I 4
don't think that you can,-- and you're talking about 5
the extended period... The reasonable 6
CHAIR YOUNG:
- okay, let's back up, I'm 7
sorry, to get us all on the same page.
Look at. the 8
introduction to NUREG 18, third paragraph.
9 MS.
UTTAL:
The third paragraph in the i0 introduction?
11 CHAIR YOUNG:
Right.
12 MS.
UTTAL:
Let me find it.
13 CHAIR YOUNG:
The first thing it says 14
- that,
".In addition to the technical information 15 required by 54.21",. so right there it opens up, "In 16 addition to a license renewal application must contain 17 general information",
okay.
18 MS.
UTTAL:
General information would --
19 CHAIR YOUNG:
Then the --
20 MS.
UTTAL:
would be the descriptions 21 of the. systems that they're looking at, so we know 22 where we are in time and space.
23 CHAIR YOUNG:
All right, I'm not asking 24 you to interpret at this point.
25 MS.
UTTAL:
Okay.
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3 4
5 6
.7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 147 CHAIR YOUNG:
What' I'masking you to do is read this and read it from the standpoint of a neutral outsider reading this for meaning.
MS.
UTTAL:
Uh-huh, I don't CHAIR.YOUNG:
Consider how easy it would have been to say, "A license renewal must contain general information relating to
- aging, necessary technical specification relating to aging and environmental information.
It must be sufficiently detailed to permit the reviewers to determine whether there's a
reasonable assurance that activities authorized by the renewal license insofar as they are related to aging, will continue to be conducted in accordance with the current licensing basis.
MS.
UTTAL:
Despite the fact that that's kind of repetitious CHAIR YOUNG:
- Well, it's not repetitious because it doesn't say that anywhere in that paragraph.
is an SRP.
MS.
UTTAL:
But Judge, this is not --
this interpretation or an introduction to the staff This is not --
CHAIR YOUNG:
This is the staff's ient on what they're going to do when they staten review.
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MS.
UTTAL:
- Yes, and what the staff is 2
going to do is exactly what's
- here,
.general 3
information as required by 54.19",
- okay, "necessary 4
technical specifications change as required by 54.22,"
5 so we're in license renewal space and we're looking at 6
aging management and
- TLAA, and environmental 7
information as required by 54.23.
8 I don't --
I think it's pretty clear to a 9
reasonable person what is meant there, Vw7hat is meant 10 there.
You just have to --
11 JUDGE LAM:
So everything that is within 12 the space of 54 13 MS.
UTTAL:
Yes.
14 JUDGE LAM:
-- and that's license renewal.
15 MS.
UTTAL:
License renewal and we only 16 are talking about aging management.
17 CHAIR YOUNG:
Probably it would have been 18 helpful to mention aging somewhere in the first three 19 paragraphs.
There's no mention whatsoever.
I think 20 there is a reference to it in the fourth paragraph, 21 and what you're telling us is that the staff, even 22 though there is some indication that activities that 23 will be authorized by the renewed license or that 24 would be, if
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conducted in compliance with the
- CLB, if those 2
activities are not related-to aging, then they're not 3
that would not stop issuance of the license.
MS.
UTTAL:
According to what the 5'
Commission. has held and what the regulatory scheme is, 6
no, it would not.
I think the Commission has been
.7 pretty clear about that.
8 CHAIR YOUNG:
Do you have anything to add 9
about what the staff actually does?
10 MR.
ROTH:
Certainly, your Honor.
1 Inspection procedure 71002.
12 CHAIR YOUNG:
And that's in 13 MR.
ROTH:
That's in the-NRC inspection 14 manual.
1*5 CHAIR YOUNG:
71?
16 MR.
ROTH:
710.02.
17 CHAIR YOUNG:
No dots?
18 MR.
ROTH:
No dots and it can be pulled 19 off NRC's website.
I don't have an Adams number for 20 it.
21 CHAIR YOUNG:
Okay.
22 MR.
ROTH:
And a review of the inspection 23 procedure describes 24 CHAIR YOUNG:
What is the Adams number?
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for it.
2 CHAIR YOUNG:
Oh, I. thought you said you 3
did have it.
4 MR.
ROTH:
No.
It's on the website.
5 MS.
UTTAL:
It's on the website.
6 CHAIR YOUNG:
Inspection procedure 7.1002.
7 MR.
ROTH:
71002.
8 CHAIR YOUNG:
Okay.
9 MR.
ROTH:
And when it gets to the 10 specific inspection requirements, it has inspection 11 guidance, some guidance documents, specific inspection 12 requirements are that they have to include the effects 13 or they have to show that items are not going to be 14 impaired by age related degradation.
They have to 15 have an aging management program inspection as well 16 and it says that the effects of aging will be 17 adequately managed.
So to me there's more specific 18 items.
19 And it doesn't get into fire protection.
20 It's a broad guidance.
It's six pages long but the 21 specific guidance would indicate it's all aging 22 related consistent with the regulation.
Nothing to do 23 with future potential compliance or non-compliance.
24 CHAIR YOUNG:
There was another question 25 I wanted to ask.
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3 4
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 151 JUDGE LAM:
Ms.
- Uttal, is it correct to assume what you are saying is this in terms of the
- SRP, the 54.29/54.30 supersede any staff; review documents and the staff review document is not binding on the agency staff? That's my understanding of point number one.
Point number
- two, I
think you had indicated that you looked and you did not find any activity within the Standard Review Plan on license renewal indicating any review of phenomenon not related to aging.
Therefore, the two points -come together even if there were activities reviewed by the
- staff, within the SRP, that due to things that's not related to a 54.29, 54.30, would apply.
MS.
UTTAL:
That's correct, 54.29 and 54.30.
The regulations trump the staff review documents.
It's not binding on the staff, it's not binding on the public and --
MR.
ROTH:
With regards to a
- look, understand as we discussed
- earlier, the look was dynamic as I was searching through it right there.
I can't attest that I've read every single page of the SRP to verify that statement.
JUDGE LAM:
So you're looking results is not that reliable.
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MR.
ROTH:
It's a
cursory look in a
2 limited, time.
3 JUDGE LAM:
So your argument related to 4
the earlier point Ms. Uttal make, that 54.29, 54.30 is 5
binding.
6 MR.
ROTH:
That's right, those are our 7
regulations.
They've been promulgated, they're 8
controlling.
9 JUDGE LAM:
Thank you.
10 CHAIR YOUNG:
Another part of 54.29 11 well Part B
refers to 10 CFR Part 41, the 12 environmental review, and then Part C refers to any 13 matters raised under 2.335 which I think is request 14 for rule waiver, is that correct?
15 MR.
ROTH:
If I recall right, yes.
16 MS.
UTTAL:
I believe so.
17 CHAIR YOUNG:
I'm trying to~recall but it 18 seems as though the Commission has I'm trying to 19 recall the case but --
20 MR.
ROTH:
If I may, your Honor 21 CHAIR YOUNG:
the Commission has 22 interpreted that has essentially I may be wrong 23 about this but I'm trying to recall it so that I can 24 ask you about it, a situation in which a petitioner 25 was in an effect asking for a waiver of the rule to NEAL R. GROSS COURT. REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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raise another issue and the Commission considered that 2
without a formal request.
Does that ring a bell?
3 MSý UTTAL:
No, in license renewal space 4
or just in general?
5 CHAIR YOUNG:-
In general.
Let's see.
6
.,MR. ROTH:
Well, your Honor, perhaps COI 7
0524 is the one you're thinking of.
8 CHAIR YOUNG:
What case is that?
9 MR.
ROTH:
Millstone.
10 CHAIR YOUNG:
That might be Millstone.
11 What does it say?
12 MS.
UTTAL:
There was --
the Board issued 13 a memorandum and order certifying to the Commission 14 the question of whether the Grand Suffolk County's 15i request for an exemption or waiver of the final 16 sentence of 50.47(A) (1) providing that emergency.
17 planning issues are not germane to license renewal 18 determination.
That was decided against the --,that 19 was decided against the intervener, decided against 20 Suffolk County, I think.
21 CHAIR YOUNG:
Uh-huh.
If it comes to me, 22 I'll ask you about it.
23 (Discussion held off the record.)
24 CHAIR YOUNG:
- Well, it's not coming to me 25 right now, so let me just ask, any further argument?
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You indicated that
- you, Mr.
- Runkle, had given 2
basically all of the argument that you had earlier.
3 Based on what you've heard since, is there anything 4
that you'd like to add in terms of what other 5
authority there would be besides the introductory 6
language to suggest that the review goes further than 7
the aging issues as set forth in 54.29?
8 MR.
RUNKLE:
Well, again, the introductory 9
paragraph to the NUREG 1800.is also reflected in that 10 Section 9.500 which you cited on page 2 of your order, 11 but we need to --
if you determine that Section 54-.29 12 restricts the review of the staff, then you need to 13 read the whole section.
14 CHAIR YOUNG:
The whole 15 MR. RUNKLE:
The whole section, 54.29.
It 16
- says, "A
renewed license may be issued by the 17 Commission if the Commission finds A, B and C".
May 18 is a permissive word and if you say that they may, if 19 they don't find that, are they still
-- are they still 20 able to issue a renewal license?
What if they find 21 out that matters pursuant to 2.3.3.5 have not been 22 addressed?
Can the Commission then?
And I think that 23 given the staff's interpretation of the NUREG 1800 24 this also means that there may be other reasons why 25 besides those listed specifically in 54.29 that the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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Commission may not issue the renewal license 2
renewal and we think *that, again, the reasonable 3
assurance for compliance is something that echos 4
throughout the whole discussion and all the citations 5
and through the NUREG 1800 and I think going back to 6
the basic premises of the Atomic Energy Act to protect 7
public health and safety.
8 And so they may issue it, they may not 9
issue it.
They may not issue it on some other 10 grounds.
11 JUDGE LAM:
So you say "may" is not 12 "must".
That's what you're saying.
13 MR.
RUNKLE:
And it's not shall.
14 JUDGE LAM:
It's not shall, it's not must.
15 MR.
RUNKLE:
Go ahead, sorry.
16 CHAIR YOUNG:
- Well, I was just going to 17
- say, I think we're sort of getting back to where we 18 were a couple times this morning, and that is there's 19 no dispute that the Commission's case law binds us.
20 I
- mean, obviously if there was something-that 21 reversed a Commission ruling by the Court of Appeal or 22 the Supreme Court, you know, that would lead to a 23 different result.
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said in Turkey Point and all the succeeding decisions 2
that it has issued on license renewal.
3 And it keeps --
the Commission reiterates 4
over and. over again in those decisions how narrow the 5
scope of license renewal is.
And.so the --
I think 6
the way that you might have gotten in the door was if 7
the staff's review encompassed other things and this 8
Commission has said that the scope of the staff's 9
review is the same as --
or determines the scope of
- 10.
our review.
Then that would be a way to get it in.
11 But --
12 MR.
RUNKLE:
But my reading of the Turkey 13 Point was that it did not limit --
it didn't limit the 14 review to just aging.
Those were the issued brought 15 before the Commission.
The question of reasonable 16 assurance is something that the staff should be 17 looking at and we've argued that several gone 18 around that several times today, that that question 19 has not been brought squarely to the Commission.
And 20 so given a ruling in our favor, the Commission would 21 be telling the staff that that's something they need 22 to be looking at, that they don't and so, again, it 23 goes down to the legal interpretation.
24 CHAIR YOUNG:
Well, but the Commission was 25 pretty definite in Turkey Point.
That may be that --
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you know, if you can point to a part of it that would 2
support your argument, that would --
3 MR.
RUNKLE:
- Well, the only issues that 4
were brought to them were the anti-aging issue so they 5
limited their ruling to the anti-aging issues but 6
there have been other. issues about you
- know, 7
substantial non-compliance over the years and no 8
reasonable assurance that they would be in compliance, 9
there may have been a different ruling on the Turkey 10 Point.
11 CHAIR YOUNG:
- Well, I'm not sure.
The 12 Commission also uses some language that's very 13 limiting and I'm not sure that--
I think there might 14 have --
I don't recall what all the contentions were 15 there, but the thrust of the Commission's decision in 16 Turkey Point was certainly limiting, not just based --
17 you know, not just on the issues that were brought.
18 It's the general tenor of it was we've been asked 19 to comment on these two things and we're commenting on 20 these two things only.
The thrust of it is, our 21 license renewal process is intended to be narrow and 22 goes into some detail on how it's supposed to be 23 narrow.
24 So while we're still here, in NUREG 1800, 25 there were some references to license renewal.
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were a few references to license renewal, let's see.
2 On page 9.5.1-6, there's a reference to RG 1.188, Reg 3
- Guide, I guess that is, Revision 1, Standard Format 4
and Content for applications to renew nuclear power 5
plant operating license is then on page 9.5.1-8, 6
License Renewal, "The staff reviews applications for 7
license renewal to insure that fire.
protection SSC 8
- systems, structures and components required for 9
compliance with 50.48 are included within the scope of 10 license renewal in accordance with 10.CFR 54.4(A).
11 For those SSCs identified as being in scOpe, the staff 12 identifies those cbmponents.that are subject to aging 13 management review in accordance with 10 CFR 14 54.21(A)(1).
15 Appendix B of this SRP provides additional 16 guidance for such review.
17 MR.
O'NEILL:
You put in
- 0800, Judge.
18 CHAIR YOUNG:
Yes.
19 MR. O'NEILL:
You said 1800, that's why I 20 was --
21 CHAIR YOUNG:
Oh, I'm sorry, 800, yes.
22 MR.
O'NEILL:
It sounded like 0800.
23 CHAIR YOUNG:
Thank you, yes.
Which would 24 seem to support the staff's and applicant's argument.
25 And then in Appendix B, there is a reference to NUREG NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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- 1800, a discussion of NUREG 1800 and fire protection 2
in the third paragraph of Appendix B, "In accordance 3
with general design criteria in 3,
Fire Protection, 4
the scope of equipment required to comply for 10 CFR 5
Part 50.48 is broad".
- Now, that's it starts out 6
talking about NUREG 1800 but then it says, "'The scope 7
under 50.48 is broad and also include fire protection 8
SSCs needed to minimize the effects of a fire and to 9
prevent the release of radioactive material to the 10 environment, i.e.,
equipment important to safety.
11 If applicable, the scoping methods used by 12 an applicant should include review of any commitments 13 made for compliance with Appendix A
to branch 14 technical position APCSB 9.5-1 guidelines for fire 15 protection for nuclear plants docketed prior to July 16
- 1st, 1976 or 10 CFR Part 50, Appendix-R, Fire 17 Protection Program for nuclear power facilities 18 operating prior to January 1s", 1979".
19 I'm not sure why --
how that relates to 20 license renewal other than the fact that NUREG 1800 is 21 mentioned there.
Then it
- goes, "10 CFR 54.21 states 22 that for those components with intended functions that 23 are identified within the scope of license renewal, 24 those components which are passive (do not perform 25 their functions with moving parts) and long-lived (are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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not subject to replacement based on qualified life or 2
routine replacement) are subject to an aging 3
management review.
Examples would include examples of 4
fire protection components which are passive and long-5 lived and. that therefore, would be subject to an.aging 6
management review include fire barriers, EG ceilings, 7
damper housing, doors, floors, penetration seals in 8
walls, sprinkler heads, fire suppression system piping 9
and valve bodies and fire protection tanks.and pump
- 10.
casings and fire hydrant casings.
11 Active components are defined.
as 12 components that perform an intended function as 13 described in 10 CFR 54.4 with moving parts, but with 14 a change in configuration of properties and they are 15 excluded from the aging management review".
And. then 16 it goes on to discuss other, "Smoke heat detectors are 17 active and excluded, certain passive and long-lived 18 components are considered consumables and therefore, 19 not subject to inclusion.
System
- filters, fire 20 extinguishers, fire
- hose, air packs within the scope 21 of license renewal may be excluded on a plant, specific 22 basis from AMR, Aging Management Review, under 10 CFR 23 54.21 (A) (1) (2) 24 I got tired of reading but I guess the 25 third paragraph, where it
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equipment required to comply with 10 CFR Part 50.48 is 2
broad and also includes fire protection SSCs needed to 3
minimize the effects of a fire and prevent the release 4
of radioactive material to the environment, i.e.,
5 equipment important to safety, and the scoping method 6
should include review of any commitments made for 7
compliance with Appendix A
to Branch Technical 8
Position APCSB 9.5-1, Guidelines for Fire Protection",
9 that sounds broader than just aging.
10 MR.
O'NEILL:
Your Honor, can I address 11 that, Judge?
12 CHAIR YOUNG:
Yes.
13 MR.
O'NEILL:
That is when we started 14 going through the license application, we talked about 15 the screening process.
Remember what we.said is we 16 were looking at systems, components and --
- systems, 17 structures and components, not only that were directly 18 safety systems but also ones that were --
could be, as 19 they use the term here, important to safety.
So the 20 scope of what is looked at for purposes of aging 21 management has to be broad, that's what that says and 22
- indeed, it
- says, "Now, if you have some commitments 23
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system, then you need to look at those commitments and 2
look at any systems related tb those.
3 CHAIR YOUNG:
How are they related to 4
aging?
5 MR.
O'NEILL:
And this is jujlst 6
identification of those components that are subject to 7
aging management, that's what that's all
- about,
- 8 scoping and screening.
9 CHAIR YOUNG:
- Well, the way this is 10 written, the way this is written, the next paragraph 11 after that identifies which of those are subject to 12 aging management review.
13 MR.
O'NEILL:
- Well, I think the first one 14 says we have a Reg Guide in the NEI document which 15 provides the methodology for scoping and screening.
16 The next one subject -- you know, topic sentence says, 17 and 10 CFR Part 54.21 tells you what --
for those --
18 tells you that for those components with intended 19 functions that are identified within the scope, that 20 some are passive, some are active and they go through 21 a further clarification.
- Again, this is all
'about 22 aging management, scoping, screening, identification 23 of the aging management requirement for all of this.
24 I don't think you can read anything more than that 25 into it.
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It goes into consumables, some of which 2
have to be reviewed and some which don't.
3 CHAIR YOUNG:
In the Pilgrim case, there 4
was a
contention
- about, I
- think, Mr.
Lewis was 5
involved in that case, right?
6 MR.
LEWIS:
Yes.
7 CHAIR YOUNG:
There was a contention about 8
monitoring and there was an argument made that not all
- 9.
underground piping --
monitoring for leaks and there 10 was an argument made that not all pipes are subject to 11 aging management review and I think that the Board, 12 and I was a member of the Board, ruled that obviously, 13 some were and that we weren't going to exclude the 14 whole contention based on the argument that some were 15 not.
And I'm not sure that that contention went into 16 detail on which things were subject to aging 17 management review.
18 What I will do is probably go back and 19 review that.
20 MR.
LEWIS:
If I can address that just 21 quickly because there's been a lot of confusion of 22 what scoping and screening is and how it feeds into 23 the application.
But in essence the scope of systems 24 is 25 CHAIR YOUNG:
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reargue Pilgrim here.
2 MR.
LEWIS:
I won't reargue it, I promise.,
3 but the scope of-system structures and components 4
within the scope of license renewal are defined in 5
54.4 and they are safety-related components and then 6
a number of additional classes of components including 7
system structures and components that are relied of 8
for compliance with the fire protection rule.
9 So a threshold issue in a license new 10 application is to identify all the system, structures 11 and components that meet 54.4.
That is scoping and, 12 therefore, in looking at what's in scope, you have to 13 look at your commitments for satisfying the fire 14 protection rule to figure out what have I committed 15 and what am I relying on to comply with the fire 16 protection regulations.
17 Screening is the next step and when you 18 look at the requirements for an integrated plant 19 assessment in 54.21, in (A) (1) the first step is for 20 those
- system, structures and components that are 21 within the scope, that identified those that basically 22 are passive and long-lived.
That's paraphrasing but 23 that's the screening process.
So all of Chapter 2 of 24 the license renewal application is basically first 25 identifying which system structure components are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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. 5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 165 within 54.4 and then when we get down to passive, long-lived structures and components.
The third step in this whole process is the aging management review and.demonstration.
That's in Chapter 3 of the application and there what.you're doing is demonstrating that with respect to the components that are left after the scoping and screening, you have a program that adequately manages aging.
So when you look at a license renewal application, that's the structure.
Chapter 2
is here's scope, here's our screening, then you look at Chapter 3 and it's here's the aging management program that's credited for those components.
That is the --
in essence, the sum total of the process.
CHAIR YOUNG:
And your point with regard to Pilgrim was?
MR.
LEWIS:
I wasn't going to reargue Pilgrim.
No, I was --
CHAIR YOUNG:
You said you had a relevant point to make, that's what MR.
LEWIS:
No, I
was just trying to clarify it because there was a lot of confusion about what scoping and screening is and why this discussion in Chapter 2.
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CHAIR.YOUNG:
Okay.
2 MR.
LEWIS:
I was just trying to lay out 3
the logic.
4 MR.
O'NEILL:
What he's saying is he 5
didn't think I did that well enough earlier.
6 CHAIR YOUNG:
Okay, okay, all right.
Let 7
me suggest that we take 10 minutes here and reconvene 8
and then see if we have anything further to cover 9
before 5:00 o'clock.
I don't want to leave anything 10 out and I want to give everyone a chance to sort of ii gather their wits.
And I'd l'ike for us to be able to 12 do that same thing and confer a little bit before we 13 close out this oral argument.
I know we're going to 14 go into limited appearance statements at 5:30 and 15 we've set the closing time for 5:00 o'clock.
So let's 16 be back at around 4:20.
17 (A brief recess was taken.)
18 CHAIR YOUNG:
On the record.
I guess the 19 only question I had and Judge Mignerey might have 20 another question whether --
And we have not been able 21 to find the thing that I was trying to put my finger 22 on but whether something that a petitioner is raising 23 can ever be construed as implicitly raising a request 24 for waiver and whether that can be raised later on in 25 the proceeding.
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on involved a situation where, I think, but it had 2
gotten to the Commission and the Commission remanded 3
whatever case I'm thinking about to the Board to 4
consider whether a waiver might be appropriate and I 5
may not be remembering -that right.
But it seemed, my 6
vague memory of it is that the Commission seemed to 7
imply that a request for waiver is not necessarily 8
that kind of thing that needs to be raised at the 9
outset and could be considered down the line.
10 If any of you have any thing on that, any 11 response that you'd like to offer on that, I'd be glad 12 to hear it because we have not been able to put our 13
'finger on that issue and that at this.point at least 14 in my mind, the two ways in which this contention 15 might come in if (1) it otherwise meets the criteria 16 would be if there is something in NUREG 1800 or in the 17 staff's review that does go beyond aging that would 18 suggest that this would fall into that kind of 19 category and then (2) whether there is any sort of 20 implicit request for waiver under 2.335.
21 I know you're also arguing, Mr.
- Runkle, 22 that the language may grant a license in 54.29.
It's 23 broader than other parts of the rule and that other 24 rules than what the Commission has said in Turkey 25 Point.
At this point, I'm not so sure about that.
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But in any event, based on that, do any of you have 2
anything that you. would like to add to the argument 3
and then Judge Mignerey may have a question as well?
4 MR. O'NEILL:
I never addressed your third 5
question.
If you don't need to hear about it, that's 6
fine.
7
- CHAIR YOUNG:
The third question about the 8
license amendment proceeding?
9 MR.
O'NEILL:
Correct.
10 CHAIR YOUNG:
Go ahead please.
1i1 MR.
O'NEILL:
I mean I 12 CHAIR YOUNG:
Yes.
Thank you.
- Yes, we 13 sort. of got going around and I
think that's very 14 helpful sometimes to take things out of order and you 15 helped early on that.
But, yes, please go ahead.
At 16 any such license amendment proceeding, presumably the 17 petitioners would, anybody would, have an opportunity 18 to petition for a hearing in the proceeding.
What 19 relevance would that have with regard to this 20 proceeding?
21 MR. O'NEILL:
In Turkey Point, indeed, the 22 Commission mentioned, bears noting additionally, that 23 any change to a plant's licensing basis that requires 24 a license amendment that is a change in the technical 25 specifications will itself offer an opportunity for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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hearing in accordance with Section 189 of the Atomic 2
Energy Act.
- However, the-relevance of that to this 3
proceeding is that there is no relevance for this 4
proceeding.
5 It goes perhaps to the question perhaps 6
that Judge Lam raises earlier.
Is there other ways of 7
addressing a petitioner's concerns that are outline of 8
this proceeding given the narrowness of license 9
renewal?
The Commission stated in McGuire, CLI 0214 10 an NRC proceeding, considers the application presented 11 to the agency for consideration and not potential 12 future amendments that are a matter of speculation at 13 the time of the ongoing proceeding.
That's at 55 NRC 14 294.
In
- McGuire, the Commission rejected the 15 expansive reading of the license renewal application 16 that would have invited inquiry to future inchoate 17 plans of the licensee.
18 CHAIR YOUNG:
What about the --
Just if I
19 could interject here while you're on this.
20 MR.
O'NEILL:
Sure.
21 CHAIR YOUNG:
What about the fact that the 22 rule talks about being exempted from the regular fire 23 protection regulations if you file a
request for 24 amendment to change to the risk --
25 MR. O'NEILL:
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rule at 50.48.
2 CHAIR YOUNG:
Right.
And what I
3 understand is that your client has indicated an intent 4
to do that later.
The Petitioners have raised an 5
issue about when there not being an endpoint to any of 6
this.
Can you provide an elucidation on that?
7 MR. O'NEILL:
Sure and I actually had that 8
ready to do.
9 CHAIR YOUNG:-
Okay.
Good.
10 MR.
O'NEILL:
At Adams ML051720404.
11 CHAIR YOUNG.:
ML 0517?
12 MR.
O'NEILL:
20404.
13 CHAIR YOUNG:
Okay.
14 MR.
O'NEILL:
Is the letter of intent of 15 Progress Energy to adopt an FPA 805 for its fleet of 16 nuclear plants, not just at Harris, its fleet of 17 nuclear plants.
In that letter, it sets forth the 18 schedule for the license amendment request which will 19 be required for each of the plants to do that.
There 20 is a time lag to prepare that license amendment 21 request because the process requires a PRA for each 22 plant.
23 And so consequently, set out in the letter 24 at page three shows that the Harris plant anticipates 25 the license amendment request in May of 2008.
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while Mr.
Runkle in his pleadings talked about an 2
endpoint of 2015 for Harris, it actually is an 3
endpoint of 2015 for the entire fleet to be 4
transitioned over to the 50.48 rule.
5 CHAIR YOUNG:
And so some of the concerns 6
What you're saying also by implication is that some 7
of the concerns or possibly all of the concerns about 8
the fire protection might be raised in that license 9
amendment proceeding.
10 MR.
O'NEILL:
- Well, it's certainly the 11 publ.ic would have the opportunity if there is a
12 significant hazard and there's an opportunity for 13 hearing to raise whatever issues that they might have.
14 Obviously, during this period the NRC is carefully 15 monitoring this voluntary pilot program that is 16 described in the Director's decision which Progress 17 Energy is in the lead to voluntarily transition to the 18 new rule which the Commission has encouraged because 19 it is moving more toward the probabilistic risk 20 assessment and performance based regulation.
21 So this is something that at great expense 22 the company has decided to do. in order to be in the 23 Vanguard in order to address some of the issues, not 24 noncompliance, issues that have been raised with 25 respect to its current licensing basis which includes NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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a barrier that was originally part of the licensing 2
basis which questions have been raised about using a 3
different test than was actually sanctioned-by a
4 licensing board at the time-operating license was 5
issued.
6 So this is a license amendment request 7
that the company has committed to submit, certainly 8
has every intent to do next year, and that the reason 9
the time lag is to perform the detailed and expensive 10 probabilistic risk assessment to make the 11 determinations as to what amendments must be made, 12 modifications to the plant or not.
13 CHAIR YOUNG:
What if that amendment 14 request were denied?
Would the plant then make 15 whatever changes are necessary to come in compliance 16 with the current rules?
I see someone behind you 17 nodding.
So you might want to --
18 MR.
O'NEILL:
Again 19 PARTICIPANT:
(Off the record comment.)
20 MR. O'NEILL:
Sure.
Of course, the issues 21 relate again to a set of differing views of what test 22 to use to qualify one hour and three hour barriers.
23 The current licensing basis has a
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in the art and what is considered more conservative as 2
a test have suggested that these materials may not be 3
appropriate in all cases.
4 There is a present set of compensatory 5
measures that assumes that they're not as appropriate 6
as the licensing basis and the deals with the safe 7
shutdown analysis today are currently operating 8
safely.
That's what the Director's decision found, no 9
issue with respect to public health and safety today.
10 But because this is a complicated issue with respect ii
-to these barriers,' the company has elected to be the 12 first to move over to this new approach to fire 13 protection and to transition to it which will take 14 some time to do the PRA to determine do any of these 15 barriers have to be removed.
Could there be other 16 ways of looking at it?
How significant is it on the 17 PRA basis? That's what's happening today.
That's why 18 we sit here and cringe when we heard constantly we're 19 not in compliance with our current licensing basis.
20 That's not technically a correct statement.
21 But the point is we have a safe shutdown 22 analysis.
The NRC has looked at it many times.
And 23 we're operating safely which is why I say there's no 24 basis for any contention here really.
25 CHAIR YOUNG:
Okay.
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MR.
O'NEILL:
That's where we are in the 2
timing and I thought it important to put that on the 3
record because it's not seven or eight years off.
It 4
is something that's occurring in near term and that we 5
are the first of all of the utilities and many are 6
likely to follow when the new plants that will be 7
constructed will-be following this approach.
8 JUDGE LAM:
And if I may add, I'm calling 9
to the Commission staff of the new rule that's 10 implemented according to the Commission staff to 11 enhance safety because not all vulnerabilities are 12 created equal.
So in the risk performance basis, one 13 needs to address the most critical items first and in 14 that regard safety would be enhanced.
15 MR.
O'NEILL:
The one last point to sort 16 of wrap this up goes back to Turkey Point again 17 because of at least holding open the idea that maybe 18 this contention was all about meeting the licensing 19 basis in the years 2027 to 2047 and during the break, 20 my partner pointed out that actually Turkey Point 21 addresses that as well.
22 In the Turkey Point case which, of course, 23 is CLI 0117, I
think I need to read the previous 24 paragraph to put it in context.
25 CHAIR YOUNG:
Just a second.
Let me see NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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if I can put my hands on that.
2 MR. O'NEILL:
I have the West Law version.
3 So it looks to be page five, the last paragraph of 4
page five, on the --
Excuse me.
Or at 54 NRC at 5 is 5
where I'm reading from.
6 CHAIR YOUNG:
All right.
7 MR.
O'NEILL:
And the paragraph before 8
which we focused on some is where the Commission 9
states "In establishing its license renewal process, 10 the Commission did not believe it necessary or 11 appropriate t'o throw open the full gambit of 12 provisions in a plant's current licensing basis to 13 reanalysis during the license renewal review.
The 14 current licensing basis represents an evolving set of 15 requirements and commitments-for a specific plant that 16 are modified as necessary over the life of a plant to 17 ensure a continuation of an adequate level of safety."
18 Citing the Federal Register.
19 CHAIR YOUNG:
That's actually 54 NRC at 9.
20 MR. O'NEILL:
I'm sorry.
21 CHAIR YOUNG:
But anyway, go ahead.
22 MR. O'NEILL:
"It is effectively addressed 23 and maintained by ongoing agency oversight review and 24
- enforcement."
25 CHAIR YOUNG:
Right.
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MR. O'NEILL:
The next paragraph, however, 2
goes to the future.
"Just as these oversight programs 3
help ensure compliance with the current licensing 4
basis during the original license term, they likewise 5
can reasonably be expected to fulfill this function 6
during the renewal term.
In short, the regulatory 7
process commonly is the means by which the Commission 8
continually assesses the adequacy of and compliance 9
with the current licensing basis."
10 And at the end of the day with the 11 Petitioners having disavowed this being an aging 12 management contention, we then point to the language 13 that the Board mentioned in its order, but also the 14 couple sentences before and after as a summary.
"The 15 Commission" 16 CHAIR YOUNG:
The language from Turkey 17 Point?
18 MR.
O'NEILL:
Turkey Point at --
19 CHAIRYOUNG:
Ten.
2.0 MR.
O'NEILL:
Ten.
But before the 21 language you cited is "In
- sum, our license renewal 22 safety review seeks the mitigate the detrimental 23 effects of aging resulting from operation beyond the 24 initial license term.
To that effect, our rules focus 25 the renewal review on plant systems, structures and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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components for which current regulatory activities and 2
requirements may not be sufficient to manage the 3
effects of aging in the period of extended operation.
4 Adjudicatory hearings and individual license renewal 5
proceedings will share the, same scope of issues as our 6
NRC staff review for our hearing process like our 7
staff's review necessarily examines only the questions 8
our safety rules make pertinent.
.- Our rules 9
nonetheless recognize and provide the possibility of 10 exceptional situations on a case by case basis.
If 11 warranted, by special circumstances, the Commission 12 may waive application of one or more of our license 13 renewal rules or otherwise make an exception for the 14 proceeding at issue."
15 CHAIR YOUNG:
And that's the now the 16 2.3.3.5.
17 MR.
O'NEILL:
Right.
i8 CHAIR YOUNG:
Right.
And that's what I 19 was trying to recall and I didn't.
We have about ten 20 more minutes.
21 MR.
O'NEILL:
The last sentence is 22 important.
23 CHAIR YOUNG:
Okay.
Go ahead.
24 MR.
O'NEILL:
"Absent such a Commission 25 ruling under Section 2.75(A) which is now 2.3.3.5, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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however, the scope of the Commission review determines 2
the scfope of admissible contentions at a renewal 3
hearing."
So I think that the cart has. to come before 4
the hearing.
5 CHAIR YOUNG:
All..right.
Just very 6
- briefly, do either of you have anything else to say 7
and then did you want to ask your question first or 8
after?
9 JUDGE MIGNEREY:
That's all right.
- Well, 10
-I had one very interesting.
I say, suppose that it 11 was agreed that a plant was outside this current 12 licensing basis and did not have a path to it, not one 13 of these situations where "Temporarily this is 14 offline.
We'll get it online."
How in a licensing 15 renewal can you review aging of a system which is not 16 viable?
17 MR.
RUNKLE:
or not there.
18 MS.
UTTAL:
The system doesn't exist.
19 JUDGE MIGNEREY:
The system that would be 20 in compliance does not exist in a license renewal.
21 I'm not saying this is necessarily your situation but 22 this is a hypothetical situation.
They say that 23 "Okay, you need to do something else.
You haven't 24 done it.
You submit your license renewal.
The 25 adequate system does not exist."
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that?
2 MS.
UTTAL:
You mean the system does not 3
exist in the. reactor?
4 JUDGE MIGNEREY:
That is 5
MS.
UTTAL:
There are reactors that have -
6 7
JUDGE MIGNEREY:
That is in compliance 8
with th current licensing basis.
9 MS.
UTTAL:
Well, either it's there and is 10 not in compliance or it's not there.
So it can't be
- 11.
in compliance.
I don't know which one you're talking 12 about.
13 JUDGE MIGNEREY:
Okay.
The system that's 14 there is not in compliance which means that the 15 adequate system that is viewed by the Commission as 16 being in compliance is not there.
17 MS.
UTTAL:
I'm not understanding this.
18 CHAIR YOUNG:
If it's not there, how do 19 you look at the aging of it?
If the system doesn't 20 exist, then you wouldn't do aging management on it 21 because it doesn't exist for that particular reactor.
22 JUDGE MIGNEREY:
Okay.
Say that it was 23 unequivocally proven that a certain type of barrier is 24 not sufficient and doesn't work and this plant has 25 that kind of barrier and they submit an application NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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for renewal.
- 2.
MS.
UTTAL:
It would be under again the 3
current license basis.
4 JUDGE MIGNEREY:
But how do you treat 5
aging of something that doesn't exist that isn't 6
inappropriate?
It's not there.
As I said, it's a
7 philosophical question.
8 MR.
O'NEILL:
I'm sure David will have 9
better answer, but Ium always happy to take a 10 CHAIR YOUNG:
If the --
options involved 11 X,
Y or Z types of materials then how would an aging 12 review be conducted on those if they were not in 13 place?
Does that make sense?
14 JUDGE MIGNEREY:
Yes.
If they were not in 15 place at the time of renewal.
16 MR-.
LEWIS:
If there were literally no 17 structural component at all but if there was a
18 structural component, the issue is is it performing 19 its function.
You can still do the aging review.
You 20 do the aging review by looking at. the materials-and 21 the environments.
22 JUDGE MIGNEREY:
But you've already 23 determined it's not performing its function.
24 MR.
LEWIS:
That's an issue.
25 JUDGE MIGNEREY:
Right.
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MR.
LEWIS:
That's an issue that is 2
explored in the current licensing basis.
For license 3
renewal, you can still look at aging effects and you 4
can look at the materials in an environment, determine 5
whether there's any age related degradation mechanism 6
in the place that prevents that age related 7
degradation from having an effect on the functioning 8
of the component.
The separate issue then is whether 9
that function is sufficient.
But that is entirely 10 separate from the aging issue and is a
current 11 licensing term issue and if that's a safety issue, the 12 Commission should take proper action outside of 13 license renewal proceeding.
You can address an aging 14 issue separately.
15 CHAIR YOUNG:
Just as a
matter of 16
- interest, is there an aging review being done with 17 regard to these pieces of equipment that are at issue 18 in this contention even though you're nodding yes?
19 MR.
O'NEILL:
The answer is yes.
Let's 20 focus on the hemic MT fire wrap.
It is inspected 21 today and would be inspected throughout the license 22 life on a periodic basis.
I believe it's 18 months.
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and still serving its function.
2 So now you might say "Well maybe there 3
won't be a wrap.
Maybe it will be something else."
4
- Yes, it could very well be a cable with a three hour 5
rating.
They have replaced some cables that had a 6
fire wrap with a cable with a three hour rating.
But 7
then the aging management would be in the inspection 8
of a cable as opposed to th inspection of. the fire 9
wrap but still would be under the aging management 10 system for, in that case, cable as opposed to wrap.
11 MR.
RUNKLE:
Excuse me, Your Honor.
12 (Off the record discussion.)
13 CHAIR YOUNG:
Anything further? Go ahead, 14 Mr.
Runkle.
Just in the last few minutes we'll let 15 you.
16 MR.
RUNKLE:
But that's not what happens.
17 In the part of the hearing on the 2206 petition, staff 18 said they knew that hemic wrap was out of compliance.
19 So they didn't inspect it.
That's the way these 20 things are handled.
If they aren't there or they're 21 out of compliance, they know they're out of 22 compliance, why inspect them?
They're still out of 23 compliance.
24 So these major areas on the fire 25 protection haven't been addressed.
There's no NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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walkdown at 18 months.
This is just not what happens 2
at the plant.
The NRC staff inspectors say, "Yes, 3
we're not going to inspect that.
We know it's out of 4
compliance."
5 The other point I'd just like to close on, 6
and I
know time is getting
- late, based on Mr.
7 O'Neill's assertions that Progress is seeking 8
compliance with the NFPA 805 and that there is a
9 process going on, I would hereby move that we stay 10 these proceedings then until that is accepted.
It 11 seems to me that I think that would answer a lot of 12 these questions about whether these things should be 13 addressed now.
Let's just wait until that happens and 14 if they come into compliance in
'08 or '15 or whatever 15 the time period is on that, that may cut out a lot of 16 this.
We'd be glad to wait a couple years and push 17 them and see if they can come into compliance.
18 CHAIR YOUNG:
I think the issues similar 19 to that have been raised in the license renewal 20 proceedings.
I can't recall off the top of my head 21 what the authority is.
But if you're going to be 22 filing something else with us on Friday which is the 23 authorizations, if any party could file with us also 24 by Friday any case law on the issue of staying 25 proceedings or any other authority on that, that would NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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be helpful.
2-MR.
RUNKLE:
- Well, then I'll make that 3
motion on Friday and will submit a short brief on it.
4 You, have the power under Sections 5
CHAIR YOUNG:
- Well, let's consider that 6
you're making the motion now and we'll just get 7
simultaneously any authority that any of you want to 8
provide to us on that issue.
9 MR.
RUNKLE:
If they come into compliance, 10 we don't have a contention.
So if we wait until they 11 come into compliance, that answers a lot of those 12 questions.
We've been waiting 18 years.
So we could 13 go another two years.
14 CHAIR YOUNG:
Before we close, two things.
15
- One, do you want to address why --.
Let's assume that 16 the license amendment request does' come in on schedule 17 in May. 2008 and you can petition for a.hearing in that 18 proceeding.
Are there any issues that you think could 19 not be satisfactorily addressed in that proceeding?
20 That proceeding would be I'm assuming 2206 or a
21 rulemaking obviously.
22 I'm trying to recall exactly what you said 23 on that issue and I'd like to know whether you have 24 anything else to say on it before we close now.
25 MR. RUNKLE:
What I had said earlier, Your NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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185 1
- Honor, was when that happens we may or may not 2
intervene in that proceeding and raise issues.
We're 3
right here now and I don't think it's going to happen 4
in May '08 and it certainly will be several years to 5
resolve on that.
So we're looking at. now.,
there's 6
- still, I'm going to use the words again, reasonable 7
assurance that they will be in compliance.
8 So if they do, that would be great.
We 9
don't have a contention if they can safely operate 10 this plant.
Given their.
last 18 years, they haven't 11 been able to do that and g.iven the foreseeable future, 12 that's what's going to affect.
If we can stay the 13 proceeding until
- then, let's come back in a couple 14 years and then issue the license.
15 CHAIR YOUNG:
I guess I should say I think 16 my recollection is that the Commission has said, I
17 think they have spoken to this issue, to the effect 18 that a stay would not be an appropriate thing to do, 19 but I'm just not recallingthe cases.
20 Then I
guess one last thing with you, 21 another last thing with you, since the GAO is going to
- 22.
be doing the investigation, there is that avenue which 23 is not through the NRC.
But there is that additional 24 path through which the issue is going to be addressed 25 apparently.
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186 1
MR.
RUNKLE:
- Madam, I think of a half of 2
a dozen other avenues also.
So that gives us a little 3
assurance that we're going to relicense this facility 4
to the year 2047 when it's been out of compliance and 5
it's going to stay out of compliance.
6 CHAIR YOUNG:
All right.
The staff, do 7
you have anything further to add?
8 MS.
UTTAL:
No.
9 CHAIR YOUNG:
Thank you.
This has been 10 helpful.
You certainly raised a thorny issue and it's 11 been helpful to go through it with all of you and we 12 will once we receive everything from the parties be 13 issuing a ruling on the contentions and on the issue 14 of standing and anything else in the petition.
We 15 appreciate your patience here and we will reconvene at 16 5:30 p.m. to hear limited appearance statements.
17 You're welcome to stay and listen and any 18 individuals are welcome to give statements.
But 19 generally, counsel for parties sort of sit back and 20 listen.
So we may move this table here so that people 21 can come up closer to us and have their say.
22 Anything else before we adjourn?
All 23 right.
Thank you all.
Off the record.
24 (Whereupon, the proceedings went off the 25 record at 4:55 p.m.)
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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: Shearon Harris Nuclear Oral Arguments Docket Number:
50-400-LR, ASLBP No.
07-855-02-LR-BDO1 Location:
Raleigh, North Carolina 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.
Sam Wojalk- /"
Official Rep rter Neal R.
Gross & Co.,
Inc.
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