ML100620844
| ML100620844 | |
| Person / Time | |
|---|---|
| Site: | Bellefonte  |
| Issue date: | 03/01/2010 |
| From: | Anthony Baratta, Bollwerk G, William Sager Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 50-438-CP, 50-439-CP, ASLBP 10-896-01-CP-BD01, RAS 17508 | |
| Download: ML100620844 (186) | |
Text
1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3 In the Matter of 4 TENNESSEE VALLEY AUTHORITY 5 Bellefonte Nuclear Power Plant - Units 1 and 2 6 Docket No. 50-438-CP and 50-439-CP 7 March 1, 2010 8 9:00 a.m. EST 9 TRANSCRIPT OF PROCEEDINGS 10 Pre-Hearing Conference 11 Before the U.S. Nuclear Regulatory Commmission 12 Atomic Safety and Licensing Board Panel 13 Judge G. Paul Bollwerk, III, Chairman 14 Judge Anthony J. Baratta 15 Judge William W. Sager 16 17 18 19 20 21 22 23 1 24 25 INTERIM DRAFT COPY
1 APPEARANCES 2 For Joint Petitioners:
James B. Dougherty Esq.
3 Louis A. Zeller, Esq.
4 For the TVA:
Edward J. Vigluicci, Esq.
5 Kathryn M. Sutton, Esq.
Lawrence Chandler, Esq.
6 For the NRC staff: Andrea Z. Jones 7
8 David E. Roth Christine Jochim Boote 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 2 24 25 INTERIM DRAFT COPY
1 PROCEEDINGS 2 >> JUDGE BOLLWERK: Can we go on the record 3 please. Good morning everyone. We're here this morning 4 to hold an initial prehearing conference with respect to 5 the reinstatement of construction permits issued under 6 part 50 with respect to the Bellefonte proceeding. And 7 I believe -- Mr. Dougherty?
8 >> (Petitioners arrive) 9 MR. DOIUGHERTY: Yes, sir.
10 >> JUDGE BOLLWERK: We will give you a second.
11 Obviously, you've got an issue.
12 >> MR, DOUGHERTY: It looks worse than it is.
13 >> JUDGE BOLLWERK: I'm glad to hear that sir.
14 Take your time.
15 Good morning. Today we are here to conduct an 16 initial prehearing conference in a proceeding regarding 17 the reinstatement of construction permits issued under 18 Part 50 of Title 10 of the Code of Federal Regulations 19 also referred to as the C.F.R.
20 This prehearing conference has been convened 21 as a result of the response of several groups including 22 the Blue Ridge environmental defense league and 23 efficiency and sustainability chapter and the southern 3
24 alliance for clean energy to a notice of opportunity on 25 March 13, 2009.
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1 By joint submission dated May 8th, 2009, 2 these petitioners requested an adjudicatory hearing on 3 the August 26, 2008 request of the Tennessee Valley 4 Authority for TVA for reinstatement of the permits 5 issued in 1974 that authorized TVA to construct water 6 reactors on its Bellefonte nuclear facility site located 7 some 6-miles northeast of Scottsboro, Alabama.
8 It was necessary because after deferring 9 completion of units 1 and 2 in 1998, with the units 10 88 percent and 59 percent finished respectively, in 11 2006, TVA requested and NRC granted a withdraw of the 12 CP portion, 1 and 2.
13 Joint petitioners May 2009 hearing request 14 regarding the TVA CPA reinstatement matter first came 15 before this Board in January, 2010.
16 Prior to that time, it was under consideration 17 by the Commission in connection with the admissibility 18 of the first two of their contentions challenging the 19 TVA reinstatement request both which involved issues 20 whether the agency had the authority to grant such a CP 21 reinstatement request.
22 In January, 7th, 2010 ruling, CLI-10-6, a 23 majority of Commission ruled that such authority did 4 24 exist and sent the case to the Atomic Safety Licensing 25 Board panel for further proceedings, considering ruling INTERIM DRAFT COPY
1 upon the questions of joint petitioner standing and the 2 admissibility of their other 7 contentions.
3 Subsequently on January 15, 2010, the 4 licensing Board panel, chief administrative judge issued 5 a notice designating this 3 member licensing Board to 6 conduct the proceeding.
7 By way of background, regarding the NRC 8 licensing process, as it applies to this proceeding, the 9 recent disclosure regarding nuclear power plant 10 licensing has concerned the combined license or COL 11 process under Part 52 of the agency's regulations.
12 If issued, a COL provides authorization from 13 the NRC both to construct and with conditions operate 14 nuclear power plant at a specific site in accordance 15 with agency regulations.
16 Such a licensing process is in fact ongoing in 17 connection with Bellefonte units 3 and 4. Two AP1000 18 facilities, the TVA has proposed constructing and 19 operating on the same site as Bellefonte 1 and ,2., the 20 subject of this proceeding.
21 The COL process can be contrasted with the 22 licensing process that potentially would be applicable 23 to Bellefonte Unit, 1 and 2 which would be the process5 24 used for the licensing of nuclear power plants currently 25 operating in the United States.
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1 Pursuant to Part 50 AT regulations, 2 applicants for those facilities were required to apply 3 for and obtain separate authorization to construct and 4 then, to operate a reactor.
5 Thus, in the case of Bellefonte, 1 and 2, if 6 the TVA obtains reinstating construction permits, TVA 7 would be required to procure a separate operating 8 license for each facility.
9 As would be the case under one step Part 52, 10 providing license redeem or prior to the agency issuing 11 a Part 50 operating license, in connection with the 12 request to reinstate the Part 50 construction permits 13 for Bellefonte Units, 1 and 2, the NRC staff which is 14 one of the participants before us today had the 15 responsibility of completing safety and environmental 16 reviews of he TVA request in accordance with among other 17 applicable provisions of the Atomic Energy Act, NRC, 18 regulations, the National Environmental Policy Act or 19 and NEPA.
20 At the same, The Atomic Energy Act 21 regulations, provided an opportunity for interested 22 stakeholders including interested members of the public, 23 other organizations and Governmental entities including 6
24 governmental bodies and native American tribes to seek a 25 hearing regarding a TVA reinstatement request in which INTERIM DRAFT COPY
1 they could contest that request.
2 And with respect to the conduct of the 3 adjudicatory process, as independent administrative 4 judge appointed by the Commission to serve as a member 5 of the Atomic Safety Licensing Board, this three member 6 member licensing Board has been designated to preside 7 over matters raised in the hearing protest.
8 The panel's administrative judges do not work 9 for or with the NRC staff relative to the staff's 10 licensing application review.
11 Rather, we are charged with deciding whether 12 the issues proffered by those requesting a hearing such 13 as joint petitioners are admissible and for those issues 14 we find validity making a determination regarding their 15 subsequent validity in terms of the grant, conditioning 16 or denial of the requested licensing authorization.
17 Our decisions on hearing matters are subject 18 to review first by the Commission as the agency Supreme 19 Court and then, by the federal Courts including the 20 inappropriateness of the Supreme Court of the United 21 States.
22 Relative to the specific matters before us 23 today in this initial prehearing conference, we will 7 24 hear participant's oral arguments first on the matter of 25 the application of the good cause standard of Atomic INTERIM DRAFT COPY
1 Energy, section 125(a) in determining whether the TVA 2 reinstatement request can be granted.
3 Then, for the balance of today's prehearing 4 conference, the participants will have an opportunity to 5 make oral presentations on the question, whether the 6 remaining seven contentions posited by joint petitioners 7 and contesting the advocacy of certain aspects of the 8 TVA CP reinstatement request and the staff's review of 9 that request are legally sufficient to be admitted as 10 legal issues in this proceeding.
11 Before we begin hearing the petitioners 12 presentations on these matters, I would like to 13 introduce the Board members.
14 To my right is associate chief administrative 15 judge, technical, Anthony Baratta. Dr. Baratta is a 16 nuclear engineer and a full-time member of the Atomic 17 Licensing Board Panel.
18 Participating via video conference today is 19 Dr. William Sager.
20 Judge Safer, an oceanographer geo-scientist is 21 a part-time member of the panel.
22 My name is Paul Bollwerk and I'm an attorney 23 and chairman of the licensing board. 8 24 At this point, I would like to have counsel 25 for the various participants, identify themselves for INTERIM DRAFT COPY
1 the record. Start with the joint petitioners, then move 2 to TVA and finally to the NRC staff. Mr. Dougherty, if 3 you would, please.
4 >> MR. DOUGHERTY: Good morning, Your Honor 5 James B. Dougherty for the petitioners.
6 >> JUDGE BOLLWERK: Would you like to 7 introduce the gentleman at the table?
8 >> MR. DOUGHERTY: Oh, yes sir. At my right is 9 Louis Zeller, executive director of my client, Blue 10 Ridge Environmental Defense League.
11 >> JUDGE BOLLWERK: Good morning.
12 >> MS. SUTTON: Good morning. My name is 13 Kathryn Sutton. I'm a partner in the law firm of 14 Morgan, Lewis & Bockus. I'm here today representing the 15 Tennessee Valley Authority and I will allow the 16 gentlemen to introduce themselves.
17 >> MR. CHANDLER: My name is Lawrence Chandler 18 with the firm of Morgan Lewis & Bockius and also here on 19 behalf of Tennessee Valley Authority.
20 >> MR. VIGLUICCI: My name is Edward 21 Vigluicci. I'm with the Tennessee Valley Authority, the 22 Office of the General Counsel.
23 >> JUDGE BOLLWERK: All right, thank you. 9 24 NRC staff please?
25 >> MS. JONES: Andrea Jones for the NRC staff.
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1 >> MS. BOOTE: Good morning, Christian Boote 2 for the NRC staff.
3 >>> MR. ROTH: David Roth, NRC staff.
4 >> JUDGE BOLLWERK: Thank you. All right.
5 Let's wait one second. We will do that.
6 As my previous comments indicated, during 7 today's conference, we will be entertaining 8 presentations regarding from participants the good cause 9 and contention matters outlined previously.
10 At some point in the future, if any 11 contentions are admitted in accordance with Title 10 of 12 the code of Federal regulations, the Board will issue a 13 hearing notice that among other things may indicate that 14 members of the public will be afforded an opportunity to 15 provide as appropriate oral limited appearance 16 statements setting forth their views concerning he 17 reinstatement for Bellefonte Units, 1 and 2.
18 In that issuance or subsequent notice, the 19 Board will outline the times, places and conditions of 20 participation relative to any opportunity for oral 21 limited appearance statements.
22 In the interim, as the Board noted in its 23 February 18, 2010 issuance in this case, any member can 10 24 submit a appearance statement regarding his or her views 25 regarding issues in the proceeding.
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1 Those written statements may be sent in a time 2 by regular mail to the Office of the Secretary, U.S.
3 Regulatory Commission, Washington DC, zip code, 4 20555-0001, attention, to the rulemakings and 5 adjudication staff.
6 Or by e-mail to hearing docket, that's all one 7 word, at NRC.G 0V.
8 A copy of the statement also should be 9 provided to me as the chairman of this atomic safety 10 licensing Board by sending regular mail to my attention 11 as the Atomic Safety and Licensing board Panel, mail 12 stop T-3F23 U.S. Nuclear Regulatory Commission, 13 Washington DC same zip code, 2055-0001, or by e-mail to 14 Paul.Bollwerk -- B as in boy O-L-L-W-E-R-K-- at NRC.gov.
15 And again, this submission information is 16 provided in the Board's February 18 2010 issuance that 17 is available under the reactors, material and other 18 hearings portion of the agency's electronic hearing 19 docket which can be found under the hearings and 20 licensing portion of the electronic reading room tab on 21 the agency's home page which is at www.nrc.gov.
22 With these limited appearance statement are an 23 opportunity for those that do not wish to seek party 11 24 status, provide their views regarding the substantive 25 issues before the Board, While these limited INTERIM DRAFT COPY
1 appearance statements provide an opportunity to provide 2 these regarding matters before the Board, the licensing 3 Board panel would also be interested in hearing from 4 anyone who might be watching this proceeding via web 5 streaming about their experience with accessing and 6 viewing the webcast.
7 To the extent that anyone viewing this 8 proceeding via the internet has comments regarding the 9 technical aspects of the webcast or its efficacy as a 10 tool providing for broader public access to the 11 adjudicatory hearing process regardless of the actual 12 hearing location, those comments can be directed by 13 e-mail to webstreammaster, that's all one word, 14 webstreammaster.resource@NRC.gov.
15 This address is also on the bottom of the web 16 page that provides access to today's web stream session.
17 I would note also that in addition to the 18 availability of this proceeding via web for live 19 viewing, a verbatim transcript will be available for 20 viewing and download within seven days in the electric 21 hearing docket on the NRC website.
22 Additionally, video of this session will be 23 archived for 90 days under the same webstreaming link12 24 affording live access to today's session.
25 Returning to the matter before the Board INTERIM DRAFT COPY
1 today, with respect to the order of presentation by the 2 participants of this prehearing conference, in our 3 February 18 order, the outline is scheduled to afford an 4 opportunity with the participants to address various 5 contested matters now before the Board.
6 We would intend to follow that schedule as 7 closely as possible for argument.
8 In that regard, we requested that before 9 starting on an issue, joint petitioners have been 10 afforded an opportunity for initial argument and 11 rebuttal, their counsel should indicate how much of the 12 joint petitioners total time allocation, he or she 13 wishes to reserve for rebuttal.
14 For the end of that closing argument time, the 15 Board will be providing counsel or representatives with 16 notice of the need to finish his presentation.
17 Also, as we noted in our February 18 issuance 18 making their argument, petitioners should bear in mind, 19 we have read their pleadings and they should focus their 20 attention on the critical points of controversy as a 21 result of the various filings.
22 Finally, at some juncture, we would like have 23 a brief discussion regarding some of the administrative 13 24 details involved in these proceedings. And relative to 25 administrative matters I would note this is my cell INTERIM DRAFT COPY
1 phone.
2 I have now turned it off, sticking it in my 3 pocket and not turn it on until recess.
4 I would request that every one else do the 5 same thing or put it on vibrant.
6 But if you do put your phone on vibrant and it 7 goes off during the session,I would ask that you leave 8 the room and have your conversation.
9 We appreciate everyone abiding by this 10 protocol at any time this prehearing conference is in 11 session.
12 If participants have anything at this point, 13 they need to bring to the Board's attention, let's begin 14 with the joint petitioners presentation regarding issue 15 of the application of the Good Cause Standard and Atomic 16 Energy Section 185 (a). And let me find out first how 17 you would like to allocate the ten minutes you've been 18 afforded in terms of the initial argument and rebuttal.
19 >> MR. DOUGHERTY: Yes, thank you.
20 I would like to take seven minutes of the 21 initial ten minutes we've been allocated in my opening 22 statement and reserve three minutes for rebuttal.
23 >> JUDGE BOLLWERK: All right, let me just 14 24 find out from the staff and applicant how they are going 25 to divide their time.
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1 MS. SUTTON: We will divide it evenly, Your 2 Honor, five minutes each.
3 >> JUDGE BOLLWERK: Before you start, one 4 point that is important, in CLI-10-6 after indicating at 5 page ten of the slip opinion that relative to TVA CP 6 reinstatement request, section 185 of the Atomic Energy 7 Act was the only arguably, relevant ADA provision, that 8 at page 19 of the slip opinion, the Commission stated, 9 once the licensing Board is convened, it will have to 10 decide in the first instance whether petitioners have 11 established standing and have raised admissible issues 12 and if so, given their claim whether reinstatement on 13 the particular facts presented here is lawful and 14 proper.
15 That is, whether there is good cause for 16 reinstatement. That is sort of the background obviously 17 to what the Commission said on this subject.
18 I know there was some statements in some of 19 the filings that were from the applicant and staff 20 relative to your reply brief indicating that you were 21 trying to somehow contest that Commission statement.
22 And obviously, this Board cannot change what the 23 Commission has said. 15 24 So in making your good cause argument, I would 25 like you to do it with that background and against that INTERIM DRAFT COPY
1 background.
2 MR. DOUGHERTY: First, I would like to say 3 that I'm new to this proceedings of course and 4 therefore, somewhat unfamiliar with the file. And 5 actually it's been 25 years since I've been involved in 6 a NRC proceeding in any capacity so the laws and rules 7 have changed so much, for that and medical reasons, I 8 gave a brief consideration to seeking postponement but 9 decided not to inconvenience all these people and 10 instead to make a disclaimer that if I say anything that 11 is unusually boneheaded I will the right later to 12 disavow the statement.
13 >> JUDGE BOLLWERK: All right, appreciate your 14 candor.
15 >> MR. DOUGHERTY: I certainly don't think it 16 is our role to contest anything he Commission has said .
17 I do think it must be said that the Good Cause Standard 18 that's been laid out by the Commission is unclear.
19 The two word phrase finds no grounding 20 anywhere in the statute that section 185 is arguably 21 relevant but only at most, arguably relevant. And if 22 you look for the language to appear anywhere else in the 23 statute, you won't find it, that's true but 185 the Good 16 24 Cause Standard is raised chiefly regarding situations 25 where CP has expired and the applicant sought INTERIM DRAFT COPY
1 reinstatement. We don't think that fits this 2 circumstance even closer.
3 In fact, as most attorneys will note, the 4 basic concept of good cause standard is typically 5 applied in situations where a party has violated some 6 requirement, either entered on time or having a late 7 file contention or even in the statute and regulations 8 where a CP holder has failed to construct a plant on 9 time, then, go to the tribunal hat in hand and say, here 10 is the good cause why we couldn't do what we were 11 supposed to do.
12 But if you apply that framework to here, it 13 does not apply and petitioners are contending that TVA 14 was guilty of any bad conduct or violated any 15 requirement or deadlines simply surrendered their 16 permit, walked away from the plant and now comes back.
17 The idea of trying to fit this in a good cause 18 is very confusing and odd. Both staff and TVA have 19 pointed to the Commission decision in the Washington 20 power case cited in Seabrook and Comanche Peak in which 21 they laid out this two point test in the content of 22 extending construction permits. But on the face, the 23 two part test does not apply here. 17 24 Part one of that two part test is whether 25 there is traceability between the missing of the INTERIM DRAFT COPY
1 deadline and the a company's behavior.
2 That does not seem to apply here. And 3 secondly, the second part of that test requires a 4 showing of dilatory conduct and no allegation in here 5 that anything was dilatory.
6 So attempting to cram all this into that 7 standard is not going to help the panel or any of the 8 parties.
9 We think that reinstating construction permit 10 is essentially the same thing as issuing a construction 11 permit especially under these circumstances where the 12 applicant has walked away from the plant. You have 13 evidence on the record that not only the plate turned 14 out but millions of dollars of equipment was 15 cannibalized essentially, removed, sold or 16 redistributed.
17 So when we get to our quality assurance, where 18 the operating plant comes back some number of years 19 later, what your'e really doing is issuing a CP in the 20 first instance. We think that that should be the 21 standard that applies here. The common defense of 22 security and consistent with the health and safety of 23 the public. 18 24 That makes that clear when you look at the 25 rules regarding contentions.
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1 2.309 says petitioner contentions must -- I 2 need to read this one more second -- the contention must 3 be material to the findings that the NRC must make.
4 But again we don't know what findings those 5 are.
6 Good cause is just too vague to attach them to 7 and the environmental section of 2.309 says that 8 petitioner shall may environmental contentions relative 9 to the applicant environmental report and then, 10 subsequently, any environmental documentation generated 11 with the NRC.
12 But we don't have any of that. There is no 13 environmental report.
14 And so we are sort of -- in fact, what they 15 say is that contentions should reference the application 16 but in this case, there is no application.
17 All we got was a letter about a year and three 18 quarters ago from the TVA to the staff saying we would 19 like our CP to be reinstated.
20 We don't really know what we're aiming at and 21 what the Board is going to do evidently is try to 22 determine what good cause means and also going to be 23 assessing the merit of our contention. And that's is19a 24 very different kind of situation than what normally 25 applies which we know what standards we need to meet and INTERIM DRAFT COPY
1 we can say our contention meet that standard but, this 2 standard has yet to be set. So I hate when lawyers 3 throw around due process casually, but, we now to this 4 point, to justify our contention on the basis of good 5 cause standing.
6 That concludes my opening statement.
7 >> JUDGE BOLLWERK: I think the applicant 8 clearly indicated their view of good cause is that they 9 have given several reasons that they believe testify to 10 the reinstate of and those are the reasons we have to 11 focus on.
12 We need a specific standard obviously with 13 respect to the specific contentions.
14 >> MR. DOUGHERTY: They focus on the standard 15 laid out in the Washington public power case and said 16 for example, that the delay was not dilatory, they had a 17 valid business purpose for doing this. That made a lot 18 of sense in the context of that case which is where you 19 are trying to extend the construction permit.
20 But in this case, it is not an extension. It 21 is just something coming back to the Commission. We 22 think litigating the question of whether that is a valid 23 business purpose is nothing to inform this panel or the 20 24 Commission as to whether these permits should be 25 reinstated. It just doesn't fit.
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1 >> JUDGE BOLLWERK: All right. Judge Baratta, 2 any questions?
3 >> Judge Baratta not at this time.
4 >> JUDGE BOLLWERK: Judge Sager?
5 >> JUDGE SAGER: No, not at this time.
6 >> JUDGE BOLLWERK: All right, thank you.
7 Turn to TVA , take it.
8 >> MS. SUTTON: Yes, Your Honor. At the heart 9 of petitioner's claims here and Mr. Dougherty's opening 10 statement seems to be the claim that CP reinstatement is 11 the same as CP issuance and that's plainly wrong.
12 The petitioners' understanding of this case is 13 why from the outset of their argument. And therefore, I 14 think in order to fully discuss the good cause standard, 15 we really need to be dealing with some background.
16 On that front August, 28 letter to the NRC, 17 TVA asked the agency to reinstate the construction 18 permits referred to as the CPs for Bellefonte Units 1 19 and 2.
20 As you are aware, TVA voluntarily surrounded 21 in 2006. TVA requested reinstatement of the CP in order 22 to return the units to deferred status and determine 23 whether completion of construction and operation of the 21 24 units is a viable option.
25 In the August, 26th letter for example, TVA INTERIM DRAFT COPY
1 fully explained including the business purpose,Judge 2 Bollwerk that you just mentioned, the positive change in 3 power generation, economics since 2005, generation 4 alternatives since 2005, possible constraints on the 5 availability of the supply of components necessary for 6 new plant construction. Or And finally, the recognition 7 that many major units, 1 and 2 system structures and 8 components are near completion and this includes for 9 example, the containment building and cooling towers.
10 In response to this TVA request, the NRC staff 11 determined that the good cause standard which is set 12 forth in the Commission's Comanche Peak decision wasn't 13 in fact the appropriate standard to determine whether 14 reinstatement was warranted.
15 Now, Comanche Peak is the applicable present 16 here because like the facts underlying Bellefonte Unit 1 17 and 2, the facts that issue Comanche Peak involved 18 reinstatement of a CP. Again, petitioners ignore this 19 fact and do not recognize the Comanche Peak decision is 20 relevant here.
21 Applying the good cause standard therefore, 22 staff recommend that the Commission recognize to 23 reinstate 1 and the PC and on February, 2009, the staff 22 24 AUTHORIZE and placed the Bellefonte units into terminate 25 I had status.
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1 At that time, the Commission ordered the 2 staff to offer the opportunity for a hearing on whether 3 TVA had established good cause for reinstatement and 4 indeed, that is binding precedent in this particular 5 proceeding.
6 So that brings us to the question that you've 7 asked about what is the good cause standard? What does 8 it mean and how is it to be applied in this proceeding.
9 The starting point is clearly CLI-1006 wherein 10 the Commission reaffirmed that it has the authority to 11 reinstate the construction permits as requested by TVA, 12 that authority being derived particularly from section 13 185 of the Atomic Energy Act and that reinstatement does 14 not entail issuance of new permits.
15 That is the point at which we disjoin from the 16 petitioners in this proceeding. They do not seem to 17 accept that fact.
18 In particular, Section 185 says then and I'll 19 quote, "unless the construction or modification of the 20 facility is completed by the completion date, the 21 construction permits shall expire and all rights 22 therefore will be forfeited unless upon good cause shown 23 Commission extends the completion date." 23 24 So to say there is no grounding in the Atomic 25 Energy Act is incorrect.
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1 Inherent in the Commission's determination in 2 this CLI-06 decision is the conclusion that to exercise 3 the authority to reinstate a CP under Section 185, it 4 must find a basis constituting good cause for that 5 narrow reinstatement action, not the larger action 6 associated with initial issuance of construction permit 7 or for the possible subsequent action of issuing 8 operating license.
9 This is a theme we will revisit repeatedly, 10 today, thus the good cause standard in this context is 11 Commission precedent found in earlier decisions applying 12 Section 185 and regulation, which is 10 CFR Section 13 55(b) to CP extension cases. The Commission decision 14 for purposes of this discussion is in fact Seabrook, at 15 CLI 84.6 and it's discussed in TVA's answer at length on 16 page 21 of its answer.
17 It holds in order to meet the good cause 18 standard and again we quote, "the proponent of the 19 contention must articulate some basis to show "
20 applicant is responsible for the delay, the petitioner 21 here and has acted intentionally and without a valid 22 business purpose.
23 The Commission in Seabrook goes on to explain 24 24 when reviewing an applicant's stated reason for good 25 cause, the Board should not substitute its judgment for INTERIM DRAFT COPY
1 that of the applicant in selecting among any number of 2 business alternatives consistent with this legal 3 precedents, CLI 1006, Commission limited the scope of 4 this proceeding to direct challenges to TVA asserted 5 reasons that show good cause justification for the 6 reinstatement of the CP, a legal outcome of this 7 precedent.
8 As a result, it specifically stated that this 9 good cause proceeding does not permit the relegation of 10 health, safety or environmental questions that will be 11 resolved at the time of CP issuance, NEPA does not call 12 for a different CONCLUSION come of review required by 13 NEPa that being reinstate o`f the construction permits, 14 not the issuance of new permits or operating license and 15 the petitioners seem to overlook the fact that the NRC 16 has taken action under the environmental assessments and 17 left here whether as a matter of fact, or whether 18 petitioners have articulated some basis to show that TVA 19 is responsible for the delay in construction and has 20 acted intentionally and without a valid business 21 purpose in seeking reinstatement.
22 Thank you Your Honor.
23 >> JUDGE BOLLWERK: All right. Judge Baratta, 25 24 any questions, you have.
25 >> JUDGE BARATTA: Not at this time.
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1 >> JUDGE BOLLWERK: Judge Sager?
2 >> JUDGE SAGER: No.
3 >> JUDGE BOLLWERK: I take it your basic point 4 is you as the applicant, TVA was allowed to define the 5 business purposes behind due cause and that is what 6 controlled basically the scope of this proceeding?
7 >> MS. SUTTON: Yes, Your Honor.
8 >> JUDGE BOLLWERK: I'll turn to the NRC 9 staff, then.
10 >> MR. ROTH: David Roth for the NRC staff.
11 In general, the NRC staff agreed with what TVA 12 has just summarized.
13 The main points that we would like to bring up 14 though is that good cause, 185 construction permit, 15 previous hearing requests and previous decisions on 16 those, in fact provide guidance to us.
17 It is appropriate to look to these cases to 18 determine how the Commission would deal with good cause 19 as Your Honors have noted in CLI- 0610, the Commission 20 has stated that good cause is to leave room for us to 21 allow the reinstate the construction permits if they are 22 reasonable and that 'sCLI-0610. Thus, the Commission is 23 equating reasonable with good cause. 26 24 Further, the Commission as Your Honor has 25 noted has stated that reinstatement on particular facts INTERIM DRAFT COPY
1 presented here are lawful or proper, is synonymous with 2 good cause.
3 And as the dissent of it in CLI-0610 and 26, 4 the issue is limited and narrow. As TVA's counsel has 5 stated, it is instead a limited and narrow scope 6 pursuant to good cause.
7 Relative to the good cause in the application, 8 the petitioners have stated that they did not have the 9 information, they didn't have application. However, as 10 TVA stated, TVA submitted its reasons for its good 11 cause under the Seabrook Standard. As the staff 12 briefed, the petitioners are required to base their 13 issues on what the applicant has offered for its good 14 cause.
15 In fact, here, petitioners have not done that.
16 Petitioners are outside the reasons that the applicants 17 offer for good cause. Thank you Your Honors.
18 >> JUDGE BOLLWERK: Any questions, Judge 19 Baratta?
20 >> JUDGE BARATTA: Not at this time.
21 >> JUDGE BOLLWERK: Judge Sager?
22 >> JUDGE SAGER: Not at this time.
23 >> JUDGE BOLLWERK: All right. We turn then 27 24 back to the petitioners. Mr. Dougherty, what would you 25 like to say in response?
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1 >> Mr. Dougherty: Well, I just point out that 2 counsel for TVA references that part of the Commission's 3 January decision when they said that the scope of this 4 proceeding shall not extend to adjudication of health, 5 safety or environmental questions that were adjudicated 6 30 years ago at the time of the original issuance.
7 Now, they have extended that language to mean 8 there shall be no adjudication of health, safety or 9 environmental issues at all, that all of those subjects 10 are by definition, outside the scope of good cause. But 11 that's not what the Commission said.
12 Commission said no adjudication of health, 13 safety environmental questions if those questions were 14 previously resolved. And I think by implication what 15 the Commission is saying, those types of contentions and 16 issues are fair game if they are newly arisen, if they 17 arise in context of the CP reinstatement, not 30 years 18 ago. And that's what supports our issue under these 19 circumstances.
20 >> JUDGE BARATTA: How would those come up?
21 >> MR. DOUGHERTY: Well, with respect to the 22 traditional contacts that we've done here, we think 23 there is a lot of information about seismic conditions 28 24 at the site that were not in existence 30 years ago.
25 There is also record evidence that we pointed to INTERIM DRAFT COPY
1 suggesting that the initial determinations made for the 2 site regarding flooding and water levels, A, were 3 erroneous. And B, there was a lot of information on 4 that.
5 So we suggest that to the extent there is new 6 information that sheds a new light on these important 7 health, safety, questions, that is fair game for this 8 proceeding. But doubtless of other issues that were 9 resolved in the 70's that are not fair game now.
10 >> JUDGE BOLLWERK: How do you see the 11 relationship between this proceeding and I would say the 12 generic question and the potential operating license 13 proceeding?
14 >> MR. DOUGHERTY: I can't really answer that 15 Your Honor because of unfamiliarity generally with NRC 16 procedures. I understand there's a separate set of 17 issues. It's been a long time since there's been an 18 oral proceeding. I take it those issues are different.
19 I can't answer that. But I will just emphasize, we do 20 not claim we get to re-litigate issues that were 21 litigated or that were decided back when the CPs were 22 issued. We are Focusing on issues where significant 23 new information has arisen since then. 29 24 >> JUDGE BOLLWERK: All right. I think 25 obviously we will be talking about this question about INTERIM DRAFT COPY
1 the operating license verses the TVA CP reinstatement, 2 versus even 2206 petitions relative to the individual 3 contentions. I think that is another continuing issue.
4 Anything further you would like to say at this 5 point on this issue?
6 >> MR. DOUGHERTY: No, thank you.
7 >> JUDGE BOLLWERK: Judge Baratta, anything?
8 >> JUDGE BARATTA: Not a this point.
9 >> JUDGE BOLLWERK: And Judge Sager?
10 >> Judge Sager. Not at this point.
11 >> JUDGE BOLLWERK: All right, let's go ahead 12 then and move the first contention. And again we are 13 going to be dealing with seven different contentions, 14 some of which have subparts but we've sort of divided 15 them out so the ones that have subparts are sort of 16 dealt with under the same number.
17 The first one being Contention 3, entitled 18 the environmental assets violated NEPA. And this one 19 had two subparts, one dealing with the -- again if I'm 20 mischaracterizing Mr. Dougherty, correct me -- but one 21 dealing with sort of the process under which the staff 22 did its environmental assessment. And the second one, 23 the requirement, the need for the agency to actually 30 do 24 a full environmental impact statement.
25 Those were the two provisions I think. How INTERIM DRAFT COPY
1 would you like to divide your time?
2 >> MR. DOUGHERTY: For this and the remaining 3 contentions, I would like to divide my time equally 4 between opening statement and rebuttal.
5 Did you say there's going to be an indication 6 when my time is expiring?
7 >> JUDGE BOLLWERK: Yes, I will give you an 8 indication when to wrap it up.
9 >> MR. DOUGHERTY: Well, as you point out, we 10 had two contentions back then. We had two basic 11 positions that we presented in our petition. One is 12 that is to the extent the staff has conducted a NEPA 13 analysis of this decision and that was the environmental 14 assessment done last February, as I recall, that 15 environmental assessment did not meet the prevailing 16 standard for legal advocacy. And we would like to 17 challenge that document.
18 We challenge that on a number of grounds. We 19 said last May that it was inappropriate to conduct 20 environmental assessments after the Commission made a 21 decision to reinstate the CP. Since then, of course, 22 the Commission has reaffirmed that decision so that 23 changes the timing of that allegation. But in our 31 24 petition, we've also identified a number of other 25 deficiencies in the Environmental Assessment. For INTERIM DRAFT COPY
1 example, it fails to consider changes that have taken 2 place in the aquatic ecological system of the Tennessee 3 River. There is a lot of new information exist 4 regarding fish and shellfish populations. Environmental 5 assessment overlooks that entirely. And the 6 Environment Assessment does not look at the cumulative 7 impacts of reinstating the CPs for 1 and 2 and the 8 anticipated licensing of Units 3 and 4.
9 So we think there are a number of 10 deficiencies in their environmental reading. And we 11 also contend in 3-B that an action with this kind of 12 environmental significance meets the statutory threshold 13 that triggers EIS requirement. And EIS is required for 14 this CP reinstatement just as EIS is required for 15 initial CP or for operating license or combined license.
16 And this may be an instance where we disagree with the 17 Commission.
18 And I think the staff and TVA is saying that 19 this contention is outside the scope of the proceeding 20 because they are environmental. We don't think that is 21 what the Commission meant. But if is, we think that it 22 violates the text of the meaning itself. The statute 23 imposes its own requirements. Ultimately those should 32 24 be rejected by the courts. And we think that under 25 NEPA, it is a statutory argument. EIS is required here.
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1 I will note that there are a lot of NEPA 2 reviews underway here. TVA is conducting environmental 3 impact statement in connection with its IRP process.
4 They have also prepared a draft supplemental 5 EIS for Bellefonte 1 and 2.
6 These are big decisions with big environmental 7 implications. And the reinstate of CPs is exactly the 8 same. It deserves and requires an environmental impact 9 statement. That concludes by presentation.
10 >> JUDGE BOLLWERK: All right. Any questions 11 at this point? Judge Sager?
12 >> JUDGE SAGER: Yes. I'm trying to figure 13 out the scope of this environmental assessment.
14 It's my impression that for construction 15 permit, we are dealing with the impacts of construction 16 and not the impacts of operation which just dealt with 17 the operating license. Am I wrong in that?
18 >> MR. DOUGHERTY: I don't have a good answer 19 to that, Judge. I'm sorry, I don't know. You may be 20 correct. I take it that's your point? I take it that's 21 your point is that the scope of the assessment should 22 be limited to construction?
23 >> JUDGE SAGER: I'm just asking whether I 33 was 24 wrong on that?
25 >> MR. DOUGHERTY: I don't consider myself an INTERIM DRAFT COPY
1 authority on that, but I will say that we have faulted 2 the environmental assessment for its failure to 3 consider the cumulative impacts of all the proposals 4 before TVA and NRC. And they have proposed not only to 5 reinstate CPs for 1 and 2 but also to build through 3 6 and 4. And what they have attempted to do in all their 7 environmental documents including environmental 8 assessment is to segregate it, to say, well, this is 9 focused just on the CP reinstatement. This is focused 10 just on the CP relicensing. And we argue that under 11 NEPA, that a comprehensive review must be done.
12 That was not done in the environmental 13 assessment. So even if the scope was limited to 14 construction, it is still too narrow.
15 >> JUDGE SAGER: Okay, thank you. That's all 16 Judge Bollwerk.
17 >> JUDGE BOLLWERK: I think you have given us 18 a consensus but let me ask this any way. There were 19 construction permit extensions years ago that were 20 granted on a regular basis, had some minimal 21 environmental assessment done.
22 Again, you're saying this is different because 23 it is just too generous, that it requires more? 34 24 >> MR. DOUGHERTY: No, this is different 25 because we contacted a situation where the company is INTERIM DRAFT COPY
1 seeking more time to complete construction in an 2 ongoing NRC oversight role. You have constant 3 reporting, you have inspections, you have close 4 cooperative relationship between the company and the 5 NRC.
6 In this case, TVA walked away from the plant.
7 They turned the lights out. Who knows what happened in 8 that plant for those three years, if there was rust, 9 humidity, temperatures, environments, we don't know.
10 What we do know from the record is that TVA sent in 11 contractors with saws who started cutting up tubings, 12 steam generators, basically we don't know and walking 13 away with it.
14 So this -- when I say "too generous" Yes, in 15 a very significant environmental regulatory way.
16 We don't know what happened there. And if 17 they did remove point of the record, tens of millions of 18 dollars of equipment, this Board wants to know how they 19 are going to solve that problem. If they are going to 20 install new steam generators, what are those going to 21 look like?
22 What kinds of steam generators are they going 23 to put in. 35 24 >> JUDGE BARATTA: I don't understand how that 25 would be any different than what was written and INTERIM DRAFT COPY
1 authorized under the COL.
2 Steam generator is steam generator. It's not 3 like we're going to something that is so totally alien.
4 You're mixing two points here. You're mixing 5 a point that things were done at the facility which 6 don't seem to have any relationship to your claim that 7 should be, we filed a completed environmental review as 8 opposed to one you later claimed. I don't see it 9 attaching --
10 >> MR. DOUGHERTY: Well, Judge, we don't 11 really know what happened here. We would like to find 12 out and if this contention is established, then we will 13 get the documentation. But based on the limited 14 information we have seen, they have gone in there and 15 just removed sections of pipe.
16 >> JUDGE BARATTA: But from an environmental 17 standpoint, so what.
18 >> MR. DOUGHERTY: Well, I think if you were 19 to take out half of a steam generator and years later 20 come back and try and re-install another half, that 21 would impose a profound technical engineering question.
22 >> JUDGE BARATTA: That may be but that is not 23 an issue for EIS, though. Looks like to me, you're 36 24 mixing apples and oranges.
25 >> MR. DOUGHERTY: I think it poses technical INTERIM DRAFT COPY
1 questions in terms of making a finding that the NRC has 2 to find before it issues the CP. I think there EIS are 3 important safety questions here.
4 >> JUDGE BARATTA: That may be but not 5 environmental ones. You're -- this contention deals 6 with whether or not either the ER was inappropriately 7 done because of the timing issue, and also, whether or 8 not an EIS should have been done instead of ER, not 9 relevant to whether or not the steam generator or piping 10 or something like that was installed.
11 >> MR. DOUGHERTY: Well, I actually construed 12 judge Bollwerk's question to be somewhat broader. It 13 pointed to cases where companies that sought 14 extensions of CPs. And in those cases, the good cause 15 standard was held out and that's why I said generally 16 applicable to this situation.
17 Environmental questions on the environment, as 18 I pointed out, things have changed the climate has 19 change, economy has changed, new information.
20 So those factors should shift environmental 21 limit.
22 >> JUDGE BOLLWERK: Anything further, Judge 23 Baratta?. 37 24 >> JUDGE BARATTA: No.
25 >> JUDGE BOLLWERK: Judge Sager, do you have INTERIM DRAFT COPY
1 anything for the petitioners?
2 >> JUDGE SAGER: Nothing further.
3 >> JUDGE BOLLWERK: All right, let's go ahead 4 and move to TVA.
5 >> MS.SUTTON: Thank you. Both parts of 6 Contention 3 are inadmissible.
7 Turning first to 3-A, as Judge Baratta has 8 recognized, the Petitioner here this morning has started 9 to blur arguments that are addressed in other 10 contentions regarding aging equipment, cumulative 11 impacts, aquatic effects into his argument here. And 12 that will be fully addressed in our other discussion.
13 So I will turn to 3-A.
14 JUDGE BOLLWERK: Five minute, is that --
15 basically you split your time in half.
16 MS. SUTTON: Yes, sir. 3-A alleges that the 17 NRC violated NEPA because it purported authorized 18 reinstatement of the CP before completion of the 19 environmental assessment. As I will explain, this 20 challenge not only falls outside the scope of this good 21 cause proceeding, but it is factually, inaccurate and 22 for this reason, it must be rejected. First, 3-A 23 challenges the Staff's action, under NEPA as opposed 38 to.
24 TVA's good cause justification for reinstatement. As a 25 result, it falls outside the scope of this proceeding INTERIM DRAFT COPY
1 contrary to Section 2.309 (f) 13.
2 In their Reply and argument here today, 3 Petitioners claim that challenge to staff action under 4 NEPA is within the scope of this good cause proceeding.
5 And we disagree for the reasons that we set forth 6 earlier during the discussion of the scope of this 7 proceedings and the associated meaning of the good 8 cause standard. Moreover, and most importantly, this 9 conclusion is driven by the plain recognition that 3-A 10 has no basis, in fact contrary to 2.309 (f) 15.
11 As a matter of record, the NRC quite clearly 12 did not authorize reinstatement of the construction 13 permits B-4 discharge its obligations under NEPA.
14 Let's review the time line on this. The 15 Commission 's staff requirement memorandum or SRM dated 16 February, 18, 2009 authorized the Staff to issue an 17 order reinstating the CPs and placing the facility in 18 terminated status, but only upon completion of its full 19 review and acceptance of TVA's request including the 20 preparation of an environmental assessment. The latter 21 is fully described in Secy, 080041 and briefed in our 22 answer at page 25.
23 The staff then issued its environmental 39 24 assessment on February 24, 2009 and published the 25 document in the federal register on March 3rd, 2009.
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1 An order reinstating the CP was issued on 2 March 9, 2009 and published in the federal register on 3 March 13, 2009. Thus the staff fully complied with NEPA 4 by completing and publishing the EAD for reinstatement 5 of the CP. And again, this fails to raise a genuine 6 disputes of material issue of law or fact and must be 7 rejected as contrary to 2.309 (f) 16. Turning to 3-B, 8 petitioners claim that NEPA requires the NRC to prepare 9 an EIS as opposed to an EA for the proposed action 10 because licensing and permit processes are underway both 11 for the construction with Units 1 and 2 as well as 12 construction and operation of 3 and 4 pursuant to a 13 combined license or COLA.
14 Petitioners further claim the legal 15 segmentation of cumulative issues under NEPA in view of 16 the possible co-location of multiple units on a single 17 site.
18 Again, 3-B is inadmissible because it lacks a 19 nexus to TVA's good cause justification for 20 reinstatement of CPs contrary to 2.309(f) 13.
21 But even putting aside this deficiency, 3-B 22 is inadmissible for several independent reasons. First, 23 an EIS is not required for the challenged action. There 40 24 are no ongoing licensing and permanent processes for 25 Bellefonte Units 1 and 2.
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1 The purpose of reinstatement is to allow TVA 2 to further assess the viability of completing plant 3 construction and thereafter possibly obtaining operating 4 licenses for the unit. Therefore, no EIS is required.
5 It is not we can of the agency action listed 6 in section 51.20 as requiring an EIS.
7 Second, the NRC staff quite properly does not 8 address, cumulative impacts of building and operating 9 four units at the Bellefonte site.
10 TVA has not made a final decision to complete 11 construction of Units 1 and 2 nor has the NRC authorized 12 it to do so. It cannot resume reactor construction 13 until other actions are taken consistent with the 14 Commission's March, 2009 order and deferred plant policy 15 statement.
16 Moreover, the Commission ruled in the McQuire 17 case, that cumulative impacts of a future project need 18 only be considered if there is a proposal for the other 19 project, and if there is an independence, an 20 inter-dependence between them. Following that 21 precedent, this same Board in the ongoing Bellefonte 22 COLA proceeding rejected the same argument proffered 23 herein by the petitioners finding that TVA's request 41 to 24 reinstate the Unit 1 and 2 CP does not constitute a 25 proposal that is inter-dependent with the Bellfonte INTERIM DRAFT COPY
1 unit, 3 & 4 COL application that is before the agency.
2 Third: The NRC has not illegally segmented 3 its NEPA review of TVA's reinstatement requesting COL 4 application. The two actions are separate and distinct.
5 TVA has not proposed to construct and or 6 operate four units. Either project may proceed or not 7 proceed inter- independent of the other.
8 As explained in TVA's answer at page 36, the 9 Board should reach the same conclusion on this 10 purported segmentation issue as they did in the 11 Bellefonte COLA proceeding rejecting 3-B in its 12 entirely. For these many reasons, 3-B lacks factual or 13 legal basis and thereby fails to raise a legal dispute 14 on material issue of law or facts contrary to Section 15 2.309(f) 15 and 6 and it too is therefore, inadmissible.
16 >> JUDGE BOLLWERK: I believe that the thrust 17 of the petitioners argument is, if not now, when.
18 I mean, there's a lot that's happened as they 19 point out over 30 years. When are all these issues 20 going to be discussed?
21 One of the questions about -- which is 22 clearly pending about some aquatic impacts --
23 >> MS. SUTTON: Clearly, if there are current 42 24 safety issues, they can use the 2.206 process currently 25 before the Commission. There will also be, as you know, INTERIM DRAFT COPY
1 a CP extension that would be necessary perhaps in this 2 proceeding if TVA determines that this is viable and 3 proceeds. And there would be a NEPA analysis conducted 4 as part of that CP extension.
5 Most importantly, here, if TVA ultimately 6 decides to proceed with operating licenses for these 7 units, then, there would be an additional NEPA analysis 8 at that time as well as an opportunity for hearing.
9 So there are many opportunities, Judge 10 Bollwerk. It's just that this particular reinstatement 11 request is particularly narrow in scope and the issue 12 that they are seeking to litigate under NEPA 13 admissibility are not right in this particular 14 proceeding.
15 >> JUDGE BOLLWERK: Although their fear is 16 once this gets wound up, it it takes on a life of its 17 own, will anybody look at it seriously.
18 >> MS. SUTTON: They have the same opportunity 19 to meet the admissibility standards under 2.309 in the 20 COL application proceedings, for example to raise the 21 sort of issues that they are they are trying to raise in 22 this proceeding, as we will describe later in 23 conjunction with several others of their contentions.43 24 >> JUDGE BARATTA: Let me ask you, you 25 mentioned the operating license. I'm looking at Part INTERIM DRAFT COPY
1 50.
2 Are you referring to the section where it says 3 as part of the application for operating licensing, it 4 says, all current information such as the result of 5 environmental ERs monitorring, program should be 6 included? I'm kind of paraphrasing.
7 >> MS. SUTTON: That is correct, Your Honor.
8 >> JUDGE BOLLWERK: Anything further at this 9 point?
10 Judge Sager, anything for TVA?
11 >> JUDGE SAGER: Nothing from me.
12 >> JUDGE BOLLWERK: All right. Let's turn to 13 Staff.
14 >> MS. BOOTE: Good morning. I'm Christine 15 Jochim Boote for the NRC staff. With respect to 16 Contention 3, general matter, the Commission narrowly 17 limited the scope of this hearing to whether good cause 18 exist for reinstatement. As a result, 3-A and 3-B are 19 outside the scope of this proceeding. Contentions 20 should address whether good cause exist, not NRC staff's 21 actions.
22 Petitioners arguing Contention 3-A that the 23 EA was illegally prepared after the Commission decision 44 24 was made. And as the applicant has stated, this is 25 just factually inaccurate. On February 18, 2009 the INTERIM DRAFT COPY
1 Commission issued its authorization to staff to go 2 forward with review of TVA's reinstatement request. And 3 subsequently on March 3rd, 2009 the staff's EA was 4 published in the Federal Register. On March 9,2009, 5 staff issued an order reinstating the construction 6 permits, to terminate its status and which was 7 subsequently established on March 13..
8 The Commission expected the staff to make an 9 independent decision after conducting its review 10 pursuant to 10 C.F.R. 5121.
11 As such, the staff fulfilled its NEPA duties 12 prior to agency action. In Contention 3-B Petitioners 13 assert that the EIS is required for major federal 14 actions and they cite the 5120 (b) 2. Petitioners have 15 not identified legal requirements that staff must 16 conduct in advance for the reinstatement of the CP.
17 5120 (b) requires that a full EIS be conducted for 18 major federal actions such as actions involving license 19 to operate or an original construction permit.
20 This reinstatement request is neither of those 21 situations. Furthermore, Petitioners argue that the 22 Staff should have assessed cumulative impacts of the 23 operation of Bellefonte 1 through 4. 45 24 Staff's EA address cumulative impact with 25 respect to potential construction of Units 1 and 2 and INTERIM DRAFT COPY
1 includes information related to the COL application for 2 Units 3 and 4.
3 Staff did not need to address units 1 through 4 4. This action is about the environmental impacts of 5 the reinstatements of the CPs, not an application for 6 a license to operate.
7 >> JUDGE BOLLWERK: Given the -- admittedly, 8 this is not the things that you can set out there but 9 there is something that -- I don't know that regulations 10 even ever contemplate.
11 Why doesn't their request that their issue 12 relative to an EIS simply stay a legal issue, that the 13 Board ought to admit and put down for briefing.
14 >> MS. BOOTE: Why doesn't it seek a legal 15 issue?
16 >> JUDGE BOLLWERK: Yes. In other words, is 17 there a requirement here for a environmental impact 18 statement given that it doesn't seem like much that is 19 in the regulation really cover this.
20 >> MS. BOOTE: Well, Petitioners cite to 21 51.20 which doesn't actually apply in this situation, 22 that would be for an initial construction permit. This 23 is a new area and we followed 51.21 and evaluated the46 24 EA. And through EA , the staff could have decided that 25 an EIS was necessary but in this case, we didn't.
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1 >> JUDGE BOLLWERK: I guess one of the things 2 that's troubling me -- is probably not the right word 3 -- but I'm concerned about or want to make sure that I 4 understand, is sort of the process going forward here 5 because there is a lot going on as everyone here has 6 pointed out. And when you look at how this has played 7 out up to this point, we had the CP reinstatement which 8 put the plant back in terminated status.
9 That generated from the Staff an environmental 10 assessment and and a SER essentially. And there was a 11 hearing opportunity notice.
12 But then, when we came to the deferred plant 13 status request from the applicant, there was no 14 environmental assessment, there was no SER, at least as 15 I understood it from reading the documents, and no 16 hearing opportunity notice.
17 All right. Then the next step maybe could be 18 one of two things, could be a CP extension. Both of 19 these construction permits, one expires in November of 20 2011, the other expires in November of 2014. Would the 21 staff at that point do an EA or an EIS?
22 >> MS. BOOTE: Staff would do a EA at that 23 point. 47 24 >> JUDGE BOLLWERK: What about an SER?
25 >> MS. BOOTE: Staff would do an SER at that INTERIM DRAFT COPY
1 point.
2 >>> JUDGE BOLLWERK: What about a hearing 3 opportunity notice?
4 >> MS. BOOTE: Yes.
5 >> JUDGE BOLLWERK: The other thing that's 6 possible would be that TVA is going to give some kind of 7 notice under the deferred plant policy for the 8 resumption of construction. I understand they have to 9 give 120 days notice before they resume construction 10 assuming they wish to do so.
11 Does the Staff do an environmental assessment 12 for that?
13 >> MS. BOOTE: That is correct. Excuse me, 14 I'm sorry.
15 >> JUDGE BOLLWERK: So the construction 16 resumption notice generates an environmental 17 assessment?
18 >> MS. BOOTE: NO, I'm sorry, it does not.
19 >> JUDGE BOLLWERK: What about an SER?
20 >> MS. BOOTE: No, it does not.
21 >> JUDGE BOLLWERK: What about a hearing 22 opportunity notice?
23 >> MS. BOOTE: No, it does not. 48 24 >> JUDGE BOLLWERK: Then, relative to the 25 operating license application, does that involve INTERIM DRAFT COPY
1 environmental assessment or EA?
2 >> MS. BOOTE: That's correct.
3 >> JUDGE BOLLWERK: What about an SER?
4 >> MS. BOOTE: Yes.
5 >> JUDGE BOLLWERK: I guess in accordance with 6 Watts Bar, there will be a hearing opportunity?
7 >> MS. BOOTE: That's correct.
8 >> JUDGE BOLLWERK: With respect to Units 3 9 and 4, and obviously, that's something this Board 10 although we are the same members of the Board for the 11 combined license case, here except we have separate 12 authority to do this but happens to be a Board with the 13 same members, there is a statement in the CP 14 reinstatement, environmental assessment that says, if 15 construction activities resume for Bellefonte Units 1 16 and 2, TVA would need to assess the Bellefonte Units 1 17 and 2 construction impacts relative to Bellefonte Units 18 3 and 4. That's on 74 federal register at page 9314.
19 What does that mean?
20 >> That means Bellefonte --
21 >> JUDGE BOLLWERK: It sounds like the 22 decision to resume construction after the 120 day notice 23 is going to trigger some need to assess the impacts of 49 1 24 and 2, on Units 3 and 4.
25 MS. BOOTE: That's correct.
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1 >> JUDGE BOLLWERK: Under what egis would that 2 be? Is that under this process? Is it with Units 1 and 3 3 or under Units 3 and 4?
4 >> Under the ER agreement for 3 and 4 would 5 have to be modified as Units 1 and 2.
6 >>> JUDGE BOLLWERK: So at that point, 3 and 4 7 need to be modified to deal with construction of Units 1 8 and 2?
9 >> MS. BOOTE: Correct.
10 >> JUDGE BOLLWERK: Maybe then, you can let us 11 know or maybe this is a question for TVA, I'm not sure.
12 TVA has issued a notice of intent to prepare a 13 supplemental EIS to this 1974 construction permit 14 environmental statement for a single nuclear unit to 15 Bellefonte site at page 74, federal register. I believe 16 40,000, August 10 of 2009 to assess one BMW unit and 17 one AP 1000 unit.
18 What is the status of that at this point?
19 >> MS. SUTTON: I will defer to Mr. Vigluicci.
20 >> JUDGE BOLLWERK: All right.
21 >> MR. VIGLUICCI: Judge Bollwerk, the draft 22 has been issued and the SCIS and we are now considering 23 comments received on the draft. And we will anticpate 50 24 filing a final EIS in the future.
25 >> JUDGE BOLLWERK: And I think that was done INTERIM DRAFT COPY
1 to sort of cover the basis of having one of each? Why 2 was it done? I was sort of interested to know why it 3 was put out there?
4 >> MR. VIGLUICCI: TVA is a federal agency so 5 any decision to go forth on the Bellefonte site has to 6 be supported by a NEPA record. And we are considering 7 at this point, is just the construction operation of a 8 single unit on that site, be it a partially constructed 9 unit, 1 or unit 2 or AP 1000 unit. Or third alternative 10 is not proceeding on any alternative at this time.
11 >> Since we are having a discussion, let me 12 ask you a question: In terms of the resumption notice 13 that might be put out, does that require TVA to do any 14 type of environmental assessment or safety review?
15 >> MR. VIGLUICCI: If we're going to go 16 forward with a single unit at the site, that's with the 17 present EIS, that's our record for that so that will 18 support that decision. So our Board of Directors will 19 make a decision whether or not to proceed with a single 20 Bellefonte BMW or A P1000 unit and will use that NEPA 21 document to inform its decision.
22 Thereafter, if we decide to go with the BMW 23 route, the single BMW partially constructed unit, then, 51 24 we would thereafter issue our 120 day letter to the NRC 25 giving notice at some point in the future.
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1 >> JUDGE BARATTA: So no additional documents 2 filed for a single unit?
3 >> MR. VIGLUICCI: Other than the EIS that is 4 currently going on right now, no. There would no 5 separate environmental document for our 120 day 6 notice. As a federal agency, we would not do another 7 environmental review. That NEPA, the SCIUS would 8 support moving forward and licensing a single unit from 9 a NEPA standpoint.
10 >> JUDGE BOLLWERK: Just so that I understand 11 if there is one, what is the relationship between what 12 the staff is doing relative to its review of the CP or 13 potential resumption of construction, and that 14 environmental impact statement that TVA just discussed?
15 How does that work into your process, if it does?
16 >> MS. BOOTE: I'm sorry, could you repeat the 17 question?
18 >> JUDGE BOLLWERK: Sure. Well, what you 19 said is that there would not be an environmental 20 assessment or EIS done in the event that TVA issued its 21 resumption notice. Sounds like TVA is doing an 22 environmental l assessment relative to the possibility 23 of operating a single reactor to help inform that 52 24 decision.
25 Would you do anything with that environmental INTERIM DRAFT COPY
1 impact statement? How would you incorporate that into 2 the NRC review process?
3 >> MS. BOOTE: It may be incorporated into a 4 review of Units 3 and 4 or potentially if they issued a 5 operating license application at that time.
6 >> JUDGE BOLLWERK: And relative to the things 7 I discussed with Staff, I will turn to TVA for a second.
8 Are there any instances where you feel you would be 9 doing additional environmental assessment or additional 10 safety reviews in terms of -- I take it the CP 11 extension, you would have to do something; is that 12 correct?
13 >> MR. VIGLUICCI: Yes, we did the 14 environmental assessment ourselves for the CP 15 reinstatement first. So not only did the staff do one, 16 but TVA before we submitted our request, we had to do an 17 environmental assessment. And we're doing the 18 environmental review right now on a single unit. And 19 typically, how this has worked in the past, if we decide 20 to go forward with an operation license application,, if 21 we decide to prosecute -- to our Board of directors 22 tells us that's the way to go we typically use the 23 environmental information in our SEIS to inform our 53 24 environmental report that goes to the staff.
25 So we will use that has a base document to INTERIM DRAFT COPY
1 draw from that, and as part of our application to the 2 staff for our operating license application for the BMW 3 unit.
4 >> JUDGE BOLLWERK: Let me also since I'm back 5 with you, I'll address this question: Why isn't the 6 question of whether the need for an EIS here, why isn't 7 it a legal issue we ought to admit and sit down for 8 briefing.
9 >> MS. SUTTON: Because Your Honor, NEPA as a 10 statute is tied to the scope of the federal action at 11 issue And in this particular case, as we explained, 12 begin with reinstatement as a very narrow scope action.
13 It is not equal to the issuance of CPs , for example.
14 So the scope of the environmental assessment under NEPA 15 in this case was very narrow. It was a EA and was 16 consistent in addition not only to the statute, but 17 with 51.20.
18 >> `JUDGE BOLLWERK: All right. Judge 19 Baratta, do you have any questions for either Staff or 20 TVA since I sort of brought them both in?
21 >> JUDGE BARATTA: For the staff, in looking 22 at Part 50, it would appear that when you go to the 23 operating license stage, you have to update all of your 54 24 environmental documents; is that correct?
25 >> Mr. Boote: That's correct. Yes.
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1 >> JUDGE BARATTA: So given the concern about 2 whatever information has accumulated over the last 30 3 years or so, would that not then have to be taken into 4 account at that point?
5 >> MS. BOOTE: That would considered when we 6 evaluate a potential operating license, that's correct.
7 >> JUDGE BARATTA: And it would clearly be 8 within the scope of that licensing proceeding?
9 >> MS. BOOTE: I can't say that without 10 actually seeing the contention at that stage but 11 presumably, it would be.
12 >> JUDGE BARATTA: And it would be then notice 13 of opportunity for hearing?
14 >> MS. BOOTE: Yes, that's right.
15 >> JUDGE BARATTA: Thank you.
16 >> JUDGE BOLLWERK. That's sort of the rub 17 isn't it, you won't really now what's going to go in 18 when an EIS -- for the operating license until the time 19 comes?
20 >> MS. BOOTE: That's correct.
21 >> `JUDGE BOLLWERK: They may come in or may 22 not. The concerns they raised here may come in and they 23 may not. 55 24 >> MS. BOOTE: Those concerns may or may not 25 be addressed by EIS. They may not be an issue any more INTERIM DRAFT COPY
1 for them.
2 >> JUDGE BOLLWERK: Judge Sager, do you have 3 anything?
4 >> JUDGE SAGER: I was also curious about when 5 this becomes updated a plant built in 1974 standards 6 might have trouble passing a 2015 review. So is there 7 any mechanism or am I understanding it correctly that 8 those issues just will not come up until the operating 9 license?
10 >> MS. BOOTE: That's correct, Your Honor.
11 >> JUDGE SAGER: All right, thank you.
12 >> JUDGE BOLLWERK: Judge Baratta, anything 13 else?
14 >>JUDGE BARATTA: No.
15 >> JUDGE BOLLWERK: Judge Sager?
16 >> JUDGE SAGER: Nothing further.
17 >> JUDGE BOLLWERK: Let's turn back to the 18 Petitioners, then.
19 >> MR. DOUGHERTY: Well, Judge, this colloquy 20 between yourself and Staff and TVA has been enlightening 21 in several respects. It was interesting to hear counsel 22 for Staff say they could not find regulation requiring 23 EIS so therefore, no EIS is required. EIS is required 56 24 by statute. It's the statute itself that requires EIS.
25 If there is no regulation, it does not really matter and INTERIM DRAFT COPY
1 that of course if it goes to our contention, as you 2 suggest, this is a legal requirement.
3 But I think what I was really struck by during 4 this conversation was that the two different approaches 5 that TVA and NRC are taking to NEPA compliance. And it 6 historically, a lot of agencies have seen NEPA 7 compliance's red tape, documents you have to prepare 8 before the end of the process. But what the EIS or even 9 environmental assessment is intended to do is to be in 10 front of the decision-maker at the time the decision is 11 made so that these decisions are more environmentally 12 informed.
13 And what TVA is doing is saying, what we are 14 proposing to complete construction on Units 1 and 2 and 15 what we are doing is we are taking the 1974 EIS and 16 supplementing. So they issue a draft, supplemental EIS 17 and they held public hearing. And as counsel just 18 stated, once that process is complete, then it will 19 go to to TVA Board and they will decide, do we want 20 complete construction or not. Staff, however says, 21 first of all, the Commission has already reinstated the 22 permit and now, we're in a proceeding considering 23 reinstatement of a permit. And the Staff is saying 57 no 24 environmental review is necessary until the OL stage or 25 perhaps at some other future stage. But it's after the INTERIM DRAFT COPY
1 key decision's being made.
2 Our point is that if NEPA compliance is 3 meaningful, it has to be done now because the 4 authorization by the Commission or the reinstatement of 5 CP sets in motion, a chain of dominoes of investments by 6 TVA because we know from the recent pleadings dealing 7 with attendant failure they have staff and consultants 8 and contractors all over the site inspecting making 9 staff -- we don't know what they are doing but a lot of 10 money being poured into in and not to mention lawyer 11 fees. So financial concrete is being poured around this 12 project and the momentum builds every passing day. You 13 can't do a NEPA analysis five years from now. Now is 14 the time to decide if this really makes sense in light 15 of all the issues we've raised whether there is 16 environmentally available power and over cost.
17 Now, what TVA is saying is well, we really 18 haven't decided if we are going to complete 19 construction 1 and 2. And so therefore, it is 20 inappropriate now to review the environmental impact.
21 But we want you to give us the legal authority any way 22 which can amount to someone going for a driver's 23 license and saying I don't know I will be driving or58 24 not so, don't test my eyesight because it is not 25 necessary until I really make up my mind. But I'd like INTERIM DRAFT COPY
1 the driver's license now any way. Please give me the 2 authorization.
3 That's undoes the whole process. They can't 4 begin to do the work until they get the authorization 5 and say not until a later stage can it be meaningful 6 environmental information.
7 The NRC has to assume that whenever an 8 applicant comes to it saying we want authorization to do 9 X, that they will in fact do X.
10 And you don't know if they will do X. They 11 may decide not to do X. And as what happened here, 12 they may build half a plant and then back away.
13 You never know.
14 In those cases, one could argue that the 15 regulatory review time is wasted because they never 16 completed construction, all the environmental harms are 17 evaluated and never came to pass so maybe it is a waste 18 of time. And that's the way it has to be. NRC has to 19 conduct those reviews in a meaningful way on the 20 assumption assumption that this will all take place.
21 That is the posture we are in now.
22 We have to assume that TVA will act and 23 reinstate the CP and therefore, we evaluate the 59 24 environment in that context, even though we know they 25 might not.
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1 The final thing I wanted to add is that staff 2 and TVA responded to our contentions as we wrote it last 3 May in which we said the Commission violated the law by 4 first, reinstating the CPs in January and then issuing, 5 environmental assessment in February. Since then, 6 facts have changed. Not only were there a federal 7 register in March but a month ago, as we all know, the 8 Commission reaffirmed its decision.
9 So that whole timing question has sort of been 10 mooted be events but the point, our petitions contend 11 that the environmental assessment is deficient in a 12 number of respects and so considered cumulative impacts.
13 And so we think that those claims survive any subsequent 14 Commission issues. That concludes my rebuttal.
15 >> JUDGE BOLLWERK: Judge Baratta?
16 >> JUDGE BARATTA: Nothing further.
17 >> JUDGE BOLLWERK: Judge Sager. Nothing 18 here.
19 >> JUDGE BARATTA: I would like to hear a 20 response from staff with regards to the inconsistency 21 that the Intervenor claims. Can you provide any 22 thoughts on that?
23 >> MS. BOOTE: As an initial response, I want 60 24 to say there was no regulation applied in this 25 situation, simply that 51.20 does not apply in this INTERIM DRAFT COPY
1 situation 51.21 does however and and that staff NEPA 2 requirements has been fulfilled in this case before any 3 decision.
4 >> JUDGE BARATTA: I was referring to the 5 inconsistency and the fact that the applicant, TVA says 6 that they have to do a supplemental EIS and Staff says 7 staff does not have leave to do.
8 >> Staff does not have to do EIS.
9 I believe I seconded in doing an EA staff 10 could after determining that an E was necessary and 11 however, it did not come to hour attention that it 12 needed to conducts an EIS so it is limited to that 13 narrow scope so new issues related to that didn't come 14 it.
15 I'm not sure if I answered your question?
16 >> JUDGE BARATTA: I'm not sure either.
17 >> Are you asking about why TVA are not AEs 18 and not EISs?
19 >> JUDGE BARATTA: Well, it does seem odd that 20 the TVA would decide to do a supplemental EIS and staff 21 would do an EA.
22 I think what the TVA -- and I would like to 23 ask this question, you're doing the supplemental EIS61 24 for the actual decision to go forward with 25 construction?
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1 >> MS. SUTTON: Yes, Your Honor, that is a key 2 point there, two different decisions. One is for the 3 Board to decide whether it will proceed with 4 construction and the question posed to staff was 5 reinstatement of the CPs, two separate issues.
6 >> JUDGE BARATTA: Staff talks able the EA 7 relative to proceeding with reinstatement.
8 >> MS. BOOTE: That's correct.
9 >> JUDGE BARATTA: Which is a very narrow 10 scope and therefore, would not automatically kick in a 11 supplemental EIS.
12 >> MS. BOOTE: That's correct.
13 >> MS.SUTTON: And consistent with that Your 14 Honor, they also did an EA reinstatement and came to 15 the same conclusion, just that the supplemental EIS is 16 for the Board and whether or not to construct.
17 >> JUDGE BARATTA: The original EIS was done 18 30 year ago was for construction of the two units, is 19 that correct?
20 >> Construction and pop per rail operation of 21 the two urge.
22 >> JUDGE BARATTA: why then, would the staff 23 leave -- did you not I guess you did do an EIS but an62ER 24 was submitted to the agency, was for construction of two 25 units, right? Because you still have to put one in for INTERIM DRAFT COPY
1 the operating. So why then would not that trigger a --
2 you only go forward with one unit, why doesn't that then 3 require a supplement to your ER that was done 30 years 4 ago?
5 >> MR. VIGLUICCI: It would if we go forward, 6 we decide to construct that single unit, we are doing to 7 have to amend our operating license application for the 8 BMW unit.
9 >> JUDGE BARATTA: But not the construction.
10 It looks like there's some sort of 11 inconsistences here where the original one was for two 12 units.
13 >> MR. VIGLUICCI: Construction operation of two units.
14 >> JUDGE BARATTA: But if you go forward with 15 construction and operation of single unit, why doesn't 16 that then trigger a supplement to the original ER then 17 associated with the CP. They are the same.
18 >> MR. VIGLUICCI: It is a supplement. We are 19 supplementing our original 1974, TVA is on this day.
20 >> JUDGE BARATTA: That's TVA's EIS.
21 I'm talking about the application that was 22 submitted to the agency 30 years ago which had an ER 23 and a PSAR, correct? 63 24 >> MR. VIGULICCI: Correct.
25 >> JUDGE BARATTA: And the ER that was put in INTERIM DRAFT COPY
1 at that time had the construction two units.
2 Did it look on the construction of single 3 units?
4 MR. VIGULICCI: It looked at two units.
5 >> JUDGE BARATTA: My question then still 6 stands, if that is the case, you only go forward with 7 one unit, why does that require an amendment to the ER 8 submitted and accepted by this agency 30 years ago?
9 >> MR. VIGLUICCI: I think my point is if we do 10 decide to go forward, we will amend our operating 11 license application with an additional ER that will 12 address one units.
13 >> JUDGE BARATTA: But you will not go back 14 and supplement the CP?
15 >> MR. VIGULICCI: That is correct.
16 >> JUDGE BOLLWERK: Anything staff want to say 17 in that regard? You're conferring among yourself.
18 Mr. Dougherty , will get the final word.
19 >> Just one minute.
20 >> MS. SUTTON: Your Honor, one of the reasons 21 there is really no need for supplementation is that the 22 presumably, the two unit analysis without a single 23 analysis has been the agency's precedent not only here 64 24 but historically, not to go back and redo it.
25 >> MS. BOOTE: Assuming that TVA would INTERIM DRAFT COPY
1 propose in an operating license application, before the 2 staff, would evaluate whether or not to prepare the 3 final environmental impact statement pursuant to 51.95 4 (b), we believe that answers your question.
5 >> JUDGE BOLLWERK: Thank you.
6 Judge Sager, anything you want to put in at 7 this point?
8 >> JUDGE SAGER: Nothing from me.
9 >> JUDGE BOLLWERK: Mr. Dougherty, is there 10 anything you would like to say?
11 >> MR. DOUGHERTY: Only Judge, that as I said, 12 the petitioners considered the reinstatement s of the CP 13 tantamount to its issue in the first instance. But 14 even if it falls short of that, we interpret 15 reinstatement as in effect, a green light to the 16 applicant to be in a construction status that in effect 17 authorizes them to resume construction.
18 There may be some intermediate steps upgraded 19 their status on the deferred plant policy to terminate 20 the deferred and could be another 120 day period here 21 and there. But any member of the public or Court would 22 see it, granted a new or had restoration to resume 23 construction must be considered as construction now 65 24 authorized and if a EIS is done by staff in one of these 25 upcoming intermediate stages, they can certainly argue INTERIM DRAFT COPY
1 that they can satisfy NEPA requirement that way.
2 The question is should the CP be reinstated.
3 The question to time for doing the environmental review 4 is now at some in determining intermediate stage.
5 That's all I have. Thank you.
6 >> JUDGE BOLLWERK: All right. Anything 7 further JUDGE BARATTA?
8 JUDGE BARATTA: No.
9 >> JUDGE BOLLWERK: Judge Sager?
10 At this point, it is ABOUT 10:30. Why don't 11 we go ahead and take a break at this point.
12 I don't know if Mr. Dougherty, is ten minutes 13 enough for you, if you have to move around.
14 >> MR DOUGHERTY: Just as long as it is not a 15 long line at the men's room.
16 >> JUDGE BOLLWERK: That I can't speak to but 17 let's take ten minutes and if that's not working, we 18 will come back and see what we need to do. But at this 19 point, let's take a ten minute break.
20 Thank you.
21 (Whereupon, a ten minute break was taken) 22 >> JUDGE BOLLWERK: Are you ready Judge Sager?
23 >> JUDGE SAGER: Yes, I'm ready. 66 24 >> JUDGE BOLLWERK: Let's go back on the 25 record, please.
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1 We have had a brief break and I think we're 2 ready now to talk about contention 4.
3 I should just mention, we will see how we're 4 doing in terms of time with Contention, 4 and 5 and 5 decide whether we -- when and if we need to take a lunch 6 break at that time.
7 Let's at least try to get those in.
8 So Contention 4 deals with plant site geologic 9 issues not adequately addressed.
10 And again, I think before I told you, you want 11 to leave it five and five, the same way.
12 >> MR. DOUGHERTY: Thank you. For the most 13 part we believe the materials we filed and supporting 14 affidavit, Dr. Gunderson speaks are for themselves.
15 I want to reemphasize that we are not trying 16 to reopen issues decided in is 1974 but to the extent 17 issues have arisen or the underlying facts have changed, 18 we think that those issues should be fair game for 19 adjudication. And one of those is the question of 20 seismic integrity.
21 In the last 35 years, there has been lots of 22 changes in the seismic landscape of this site and we 23 pointed to documents attesting to that. And our expert 67 24 Henderson points out that some 20 earthquakes have 25 occurred since 1974.
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1 So we think that's one of the issues that 2 should be brought into play here. And the dissenting 3 opinion of the whistle blowers statement Jesse Williams, 4 pointed specifically and said that a lot of the 5 determinations made back in the 70's has since been 6 shown to be incorrect. And so it is his view that cite 7 cert ability is an open question right now and should be 8 evaluated by the NRC.
9 So that is the context that we are trying to 10 get admitted at this time.
11 >> JUDGE BOLLWERK All right. Again, EIS 12 guess we have raised the question about the 2206 13 petition and operating license.
14 Do you want to say anything about those 15 remedies?
16 >> MR. DOUGHERTY: I think the OL is beyond 17 the plant horizon. I don't know when that will happen, 18 could be five years from now. What we are talking about 19 is decisions and the necessary reviews that those go 20 into that.
21 We have not actually talked about whether 2206 22 is a more appropriate vehicle and I don't really have an 23 opinion on that but seems like we are here to raise 68 24 questions, we've done that, supported it with expert 25 documents and maybe I just need toe be shown why 2206 INTERIM DRAFT COPY
1 would be a more appropriate vehicle for raising that 2 kind of issue or perhaps some other venue to have that 3 conversation.
4 >> JUDGE BOLLWERK: All right, Judge Baratta, 5 do you have anything?
6 >> JUDGE BARATTA: If you look at the 7 regulations, it appears that there is an opportunity 8 when they go for the operating license to raise those 9 issues. It looks as if the regulations are structured 10 so that's exactly what is supposed to be done. And I 11 don't understand what your issue is with that?
12 >> MR. DOUGHERTY: If it is determined at 13 that stage, either the site is inappropriate because 14 there is a seismic criteria or conditions, or that 15 seismic considerations require plant design, thicker 16 walls, whatever, the time for making those decisions is 17 now rather than after the plant is constructed.
18 After you have made a irreversible commitment 19 of resources and there is not much you can do except 20 perhaps go back and add more addendum or something,.
21 >> JUDGE BARATTA: Well, that's the risk that 22 TVA takes. That's not something that if they decide to 23 go forward and it turns out that there is an issue as69 24 you pointed out, that's their problem.
25 >>. MR. DOUGHERTY: You're the judge, not me INTERIM DRAFT COPY
1 but I understand the position of the NRC is to make 2 decisions about site cert ability and risk to public 3 health and safety and not to defer to TVA.
4 >> JUDGE BARATTA: Don't the regulations 5 provide for that decision to be made when the operating 6 license is put forward?
7 >> MR. DOUGHERTY: Well, yes but we say if 8 they must be made when the CP was issued --
9 >> JUDGE BARATTA: The CPI was issued 230 year 10 ago and.
11 >> Mr. Dougherty: Those decisions were flawed 12 and should be reopened. But what we're saying is that 13 since then, new information has arisen that sheds a new 14 light on that whole question and if the Commission is 15 going to decide anew, the resumption construction 16 should consider seismic as part of that information.
17 >> JUDGE BARATTA: Regardless of that new 18 information, the fact that there are earthquakes in the 19 area is not new information.
20 It has been earthquakes and recognized even in 21 the original ER. So what?
22 >> MR. DOUGHERTY: I'm sure they have 23 earthquakes lots of places but our expert, Henderson 70 and 24 Mr. Williams and staff have both expressed the point of 25 view that the site has not been determined to be INTERIM DRAFT COPY
1 suitable for these reasons.
2 So we think that is a fair issue for 3 adjudication in these proceedings. I don't intend to 4 have all the answers right now.
5 >> JUDGE BOLLWERK: Anything further Judge 6 Baratta.
7 >> JUDGE BARATTA: Nothing.
8 >> JUDGE BOLLWERK: Judge Sager?
9 >> JUDGE SAGER: Nothing here.
10 >> JUDGE BOLLWERK: We'll turn to Tennessee 11 Valley Authority.
12 >> MS. SUTTON: Yes, Your Honor. The fourth 13 proposed contention is inadmissible for several 14 reasons. First, contrary to 2.309 (f) 13, proposed 15 Contention 4 and the supporting Gunderson affidavit 16 clearly fall outside the limited score of this good 17 cause proceedings. Why? Because they seek to challenge 18 TVA's compliance with NRC geologic and seismic siting 19 criteria and have nothing to do with TVA asserted reason 20 that show good cause, justification for the 21 reinstatement of the CPs.
22 As the Commission made quite clear in its 23 January 7th decision regarding its statutory authority 71 24 to reinstate CPs, this proceeding does not entail the 25 issuance of new PCs. Moreover, it clearly stated that INTERIM DRAFT COPY
1 the purpose of this proceeding is not to engage in an 2 unbridled inquiry into the safety and enviromental 3 aspects or reactor construction and operation.
4 But proposed Contention 4 seeks to engage in 5 exactly the sort of inquiry expressly concluded by the 6 Commission.
7 It's important to note that the NRC evaluated 8 TVA's compliance with siting criteria at the time of 9 initial CP issuance and found the site suitable from a 10 geologic and seismic standpoint.
11 Through this proposed contention, petitioners 12 improperly seek to revisit plant siting issues related 13 to the initial permitting of the facility and unrelated 14 to TVA's demonstration for good cause and reinstatement 15 of the CP.
16 Second, proposed Contention 4 is inadmissible 17 for the further reason that it failed to present a 18 concrete and genuine dispute appropriate for litigation 19 contrary to 2.309 (f) 1, 4 & 6.
20 In this regard, Petitioners incorrectly 21 assumed that the reinstatement of the CPs authorizes a 22 new, the construction of the reactors. This has been a 23 repeated theme throughout their pleadings and argument 72 24 here today.
25 Even if reactivated, a CP only constitutes an INTERIM DRAFT COPY
1 authorization to resume construction, it does not 2 constitute NRC approval of the safety of any plant 3 design feature. The Commission will not issue a license 4 authorizing operation of Bellefonte Unit 1 or 2 until 5 first, TVA has submitted by amendment to its OL 6 application, the complete FSAR and second, the 7 Commission has approved the final plant design and 8 consistent with that design.
9 These requirements and procedures ensure that 10 Bellefonte Units 1 and 2 if completed and licensed to 11 comply with applicable NRC requirements including to 12 ensure safe operation of the plants during seismic 13 events. Further, the Commission recently noted in 14 CLI-1006, that should TVA apply for an operating 15 license, there will a future hearing opportunity on 16 that application. And that is CLI-1006 slip opinion at 17 14.
18 This goes directly to the question posed by 19 this Board on page 7 of your February 18 memorandum and 20 order.
21 That is whether or not the issue posed and 22 more appropriate for consideration in Part 50 operating 23 license proceeding. 73 24 The answer with respect to petitioners fourth 25 contention is clearly yes.
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1 Petitioners really are trying to argue that 2 reinstatement of the CPs defactor equates to operating 3 license permitting actions and therefore, trying to 4 collapse those operating license consideration into this 5 very narrow reinstatement proceeding which is just 6 inappropriate.
7 So in the future, with respect to this 8 proposed contention, it should be raised in any future 9 potential operating license proceeding, again, assuming 10 that such a future proposed contention fully meets the 11 admissibility requirements of Section 2.309 which the 12 present contention 4 does not. And to that final 13 forage, I would like to add that the contention is 14 inadmissible for the additional reason that it fails to 15 sufficiently particularized in supported challenge.
16 Petitioner provide no support in the form of 17 documentation or expert opinion for their generalized 18 claims regarding potential earthquake damage.
19 They do not explain why or how the occurrence 20 of such events precludes TVA's comply with seismic 21 criteria or design requirements and such vague and 22 unsubstantiated allegations does not satisfy 2.309 (f) 23 F1, 5 and 6. 74 24 For all of these reasons, Your Honors, the 25 proposed Contention 4 should be rejected.
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1 >> JUDGE BOLLWERK: Why aren't the concerns of 2 Mr. Williams raise adequate to support the contention?
3 >> MS.SUTTON: The concerns that have been 4 raised Your Honor are not extraordinary. They are NRC 5 processes to deal with such concerns.
6 At the end of the day , the NRC staff will 7 nevertheless do a complete review and evaluation and 8 those concerns should not -- do not in any way supercede 9 the NRC staff review otherwise.
10 >> JUDGE BOLLWERK: The basic thrust of your 11 argue is the OL process is the one in which this can be 12 raised?
13 >> MS. SUTTON: Yes, Your Honor. And CLI-14 1006 clearly anticipated that these sorts of argument 15 may attempted to be raised but they are not proper for 16 these proceeding which is very narrowly focused on the 17 reinstatement.
18 >> JUDGE BOLLWERK: Do you agree with the 19 general tenor of Judge Baratta comments that you are 20 sort of taking this at your own risk, that if it turns 21 out additional work need to be done, designs have to be 22 changed, tenants have to be added, whatever problems 23 there are, that TVA is in the position they will have 75 24 to either fix it or let it go?
25 >> MS. SUTTON: They will have to fix it or INTERIM DRAFT COPY
1 let it go.
2 >> JUDGE BARATTA: Should that enter into the 3 business decision associated with good cause?
4 >> MS. SUTTON: No, Your Honor. The State 5 agrees that TVA presented did not include seismic 6 considerations. So for purposes of this proceedings, 7 the answer is no. And moreover, that is a technical 8 issue as opposed to a business issue and fully 9 considered by the NRC staff.
10 >> JUDGE BARATTA: Does it not go to the cost 11 of finishing the facility which goes to those factors 12 you raised in the letter.
13 >> MS. SUTTON; It is the current TVA position 14 that it is seismically adequate so Your Honor, we do 15 not believe it is inadequate and request reinstatement.
16 >> JUDGE BOLLWERK: Judge Sager, do you have 17 anything?
18 >> JUDGE SAGER: Yes, thank you.
19 My question is that I think you said that 20 there are two steps, first that the Commission would 21 approve the plant design and then, there would be an 22 operating license approval step.
23 But if that's the case, how does the 76 24 Commission evaluate the plant design if the EIS and FSAR 25 have not been updated?
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1 >> MS. SUTTON: As parts of the OL 2 application, they would be updated and that is the basis 3 upon which the Commission would make an ultimate 4 decision.
5 >> JUDGE SAGER: Okay, thank you.
6 >> JUDGE BOLLWERK: I think you said a couple 7 of time that TVA would amend its operating license 8 application.
9 TVA did file an operating license application 10 a number of years ago and was never acted upon. Nothing 11 ever went forward. So I take it your position is if I'm 12 understanding you're saying is that operating license 13 application is still pending with the agency?
14 >> MS. SUTTON: Yes, Your Honor.
15 >> JUDGE BOLLWERK: So anything you do is 16 amending that application?
17 >> MS. SUTTON: Yes, Your Honor.
18 >> JUDGE BOLLWERK: So you're not going to 19 file a new application?
20 >> MS. SUTTON: That is not our anticipated 21 course of action.
22 >> JUDGE BOLLWERK: One other question to 23 clarify. You mentioned earlier, this goes back to the 77 24 question of the environmental side: Did you all do an 25 environmental assessment relative to the CP INTERIM DRAFT COPY
1 reinstatement?
2 That letter that you out in, do you consider 3 that to be environment assessment or did you do 4 anything or that letter basically is the sum and 5 substance of the analysis that you did?
6 >> MR. VIGLUICCI: Judge Bollwerk, TVA did an 7 environmental assessment in addition to and before it 8 sent in its letter to the NRC requesting reinstatement.
9 So there is a separate issue by the TVA for 10 its decision to seek reinstatement.
11 >> JUDGE BOLLWERK: All right, was that made 12 available -- is that in the record anywhere?
13 Was it made available to staff? Staff is not 14 in their hands. So it is in Adams somewhere,. I take 15 it.
16 >> MR. ROTH: David Roth for staff. Yes, Your 17 Honor.
18 >> JUDGE BOLLWERK: All right.
19 >> JUDGE BARATTA: You would not happen to 20 have the number would you.
21 >> MS. BOOTE: I'm looking for that right now.
22 >> JUDGE BOLLWERK: Judge Sager, anything 23 further? 78 24 >> JUDGE SAGER: Nothing further.
25 >> JUDGE BOLLWERK: Anything -- let me turn to INTERIM DRAFT COPY
1 Staff then.
2 >> MR. ROTH: David Roth for the Staff. A 3 followup to the previous question, TVA provided in the 4 staff's response to the RAI. We provided you a number 5 but that's currently will provide the number but that is 6 currently, available in Adams and publicly available for 7 some time.
8 Basically, there is not much additional to 9 add.
10 What counsel for TVA has stated is correctly 11 captures the review process and correctly captures the 12 Staff's position on this.
13 This new information whether raised by 14 Petitioners, whether raised by U.S. GS, whether raised 15 by inspection team for TVA, if there is new information 16 that may affect the operating license final safety and 17 plant after its completed, then that will have to be 18 updated in the license application.
19 But in the narrow scope of good cause 20 proceeding, whether the finally as built design has 21 sufficient addresses any new information on earthquake 22 is not part of the reinstatement good cause.
23 >> : JUDGE BOLLWERK would you like to respond 79 24 to Judge Baratta's point about the question he raised 25 raided about the potential cost that could be entailed INTERIM DRAFT COPY
1 if there is additional seismic work has to be done, why 2 don't that go to the question of good cause as framed by 3 TVA in terms of the analysis assessment?
4 >> Mr. Roth: That would not go to the 5 contention admissibility for the good cause in part 6 because as TVA is doing in their pleading, there is 7 really no information speculation that there might been 8 an earthquake.
9 It is such speculation that the earthquake 10 might have an impact.
11 It does not go directly to anything saying 12 that TVA now has a for example, a cost prohibitive issue 13 because they can't fix equipment X to make a size 14 likely qualified.
15 So even if one were broadly to view it as good 16 cause, nevertheless, it is still insufficient to meet t 17 that standard.
18 >> JUDGE BOLLWERK: Would you like to say 19 anything about the adequacy of Mr. Williams' information 20 relative to the admissibility of this contention, given 21 he is a NRC staff employee?
22 >> MR. ROTH: We have a robust process that 23 addresses the employee concerns. The Chairman himself 80 24 alluded with pleasure the fact that Mr. William was able 25 to bring these issues forward. As far as other INTERIM DRAFT COPY
1 petitioners have brought this information before you 2 today, staff believe they have already adequately, 3 addressed the question and will not say anything further 4 on that.
5 >> JUDGE BOLLWERK: Judge Baratta.
6 >> JUDGE BARATTA: No questions at this time.
7 >> JUDGE BOLLWERK: Judge Sager.
8 >> Judge Sager. Nothing further.
9 >> JUDGE BOLLWERK: Let's turn back to 10 Mr. Dougherty. Mr. Dougherty.
11 >> MR. DOUGHERTY: Thank you Your Honor. Of 12 course, TVA and Staff argue about this contention as 13 they argue about every contention that's outside of 14 scope. It's Been defined by the Commission, scope 15 being good cause. TVA staff argued that scope has been 16 expressly set up been by the complex certainly not 17 express because we don't know what the scope is good 18 cause standard is.
19 According to Staff's counsel, I guess good 20 cause mean a valid business decision, if you boil it 21 down, it's simply a question of whether this makes 22 good business sense for TVA.
23 We see this Board's duty as being broader than 81 24 that not just to make sure that TVA is making good 25 business choice but fully compensate and security is INTERIM DRAFT COPY
1 being protected.
2 In that vein, I was struck to hear TVA's 3 counsel comment that in response to your question Judge 4 Baratta, that the end of construction process they were 5 discovering that there was seismic issues perhaps 6 requiring plant redesign and that they would either fix 7 it or let it go.
8 I don't know what that means but, we expect 9 it to be fixed and we think the time to fix it is before 10 it's built and now is the time to consider whether it 11 needs to be fixed, not after it is complete. And that 12 concludes my rebuttal.
13 >> JUDGE BOLLWERK: let it go term is 14 probably line, what I plane is not operative, if it does 15 not plants the seismic requirement.ACT 16 >> MR. DOUGHERTY: I see, any other tribunal 17 is going to say, well, you spent ten billion and it's 18 been issues so we are just going to shut it down.
19 You have a -- did you ever hear of Midland.
20 >> We think it's unlikely, not theoretically, 21 impossible but and we don't that's the Atomic Energy ACT 22 or NEPA will take that approach.
23 We think the role of the NRC is to get ahead 82 24 of the SQUISH resolve them before.
25 >> JUDGE BOLLWERK: I'm hearing remnants of INTERIM DRAFT COPY
1 the debate that went on over the old licensing process, 2 the two step licensing process verses the COL process 3 which was just to avoid these sorts of issues. But this 4 case is under the old process, at least up to this 5 point.
6 >> JUDGE BARATTA: Can I ask a question of the 7 TVA safety behaviors? Under what conditions would TVA 8 have to submit an amendment to the existing OL or would 9 they actually have to submit a whole new OL? Under the 10 assumption you decide to go with construction?
11 MS. SUTTON: Under assumption you go forward 12 is under the 120 day letter process that we are going 13 to describe with any number of requirements that we 14 identify new regulatory requirements. For example, 15 that's a right line test if you will, and has arisen 16 since the original OL was submitted. We would have have 17 to amend the 0L to address any new regulatory 18 requirements.
19 That is an example Judge Baratta where we 20 would be doing that.
21 >> JUDGE BARATTA: so to meet the deferred 22 plant status policy.
23 >> MS. SUTTON: That process helps us identify 83 24 what would hypothetically be necessary as well as other 25 regulatory requirements although the deferred plant INTERIM DRAFT COPY
1 policy State is not itself a regulation. It does help 2 guide us to determine what potentially would have to be 3 done to the pending OL application. By way of 4 amendment.
5 >> JUDGE BARATTA: Question for the staff 6 then. Assuming that they go forward with construction 7 with the plant and as far as that 120 day notice, they 8 do not identify seismic as an issue that needs to be 9 raised in the amended OL. There are provisions in part 10 504 looking at seismic issues of plants considered after 11 a certain date, I don't know what the date is, maybe 12 1980 something, what would the staff -- how would the 13 staff determine whether or not that was adequate?
14 >> MR. ROTH: In terms of adequacy from a 15 technical review, the staff has substantial experience 16 in reviewing seismic issues and certainly, staff is 17 aware of the particular issue here.
18 While I can't speak to exactly what the 19 staff's finally review process will be, the staff will 20 undoubtedly consider new earthquakes information to 21 determine whether the new earthquakes are bounded by 22 previous analyses or whether the analysis need to be 23 redone. 84 24 >> JUDGE BARATTA: So in other words, even if 25 that were not part of the specifics in that letter, if INTERIM DRAFT COPY
1 the Intervenor were to come in and say the original 2 would not consider that, only consider X and not Y, that 3 would be an issue that could be used assuming it was 4 proper?
5 >> MR. ROTH: That is correct. One avenue 6 someone could take the scheduling order, there are other 7 avenues including 2206 to have such an issue raised.
8 >> JUDGE BARATTA: Thank you.
9 >> JUDGE BOLLWERK.
10 >> MR. ROTH: Pardon me, we also have what 11 you were looking for.
12 13 That's Mike Lema 082730756.
14 >> JUDGE BOLLWERK: Judge Sager, anything you 15 want to say at this point?
16 >> JUDGE SAGER: No.
17 >> JUDGE BOLLWERK: Mr. Dougherty, let me turn 18 back to you.
19 >> MR. DOUGHERTY: Nothing further.
20 >> JUDGE BOLLWERK: I believe that concludes 21 our discussion about Contention 4. Let's then move on 22 to Contention 5. This one's called lack of good cause 23 for reinstatement. And the essence of this one dealt85 24 with financial matters or questions of cost.
25 This one, we had set aside because there is INTERIM DRAFT COPY
1 also a motion both motion to supplement the record as 2 well as a motion to strike that were involved.
3 We were given 20 minutes aside for these --
4 for this particular argument. Mr. Dougherty, how do you 5 want to divide your time?
6 >> MR. DOUGHERTY: Ten and ten, please.
7 >> Judge Bollwerk: All right. Whenever 8 you're ready.
9 >> MR. DOUGHERTY: With all due respect to 10 my colleague, Mr. Zeller, I think it probably did not 11 mean in the most helpful way possible since there is all 12 these questions about whether there is good cause for 13 all of these contentions. What this contention goes to 14 is the fact that alternative sources of power would be 15 environmentally preferable to nuclear power and less 16 expensive and are on the table. And those have to be 17 evaluated in the context of this proposed CP 18 reinstatement.
19 And we congratulate TVA for taking a very 20 public approach and re-evaluating their needs and with 21 ways of addressing demand.
22 And the integrated resource plan that was 23 circulated last summer, this is subject of our amended 86 24 basis.
25 They suggest that we are really putting INTERIM DRAFT COPY
1 everything on the table, we don't know if any one of 2 these four plants or and we are looking at hydro, solar 3 and wind, we think that is the right way to do it in 4 conjunction with the NEPA process and done pretty much 5 the same thing with their decision, whether to resume 6 construction at Bellefonte 1 and 2 affect the NEPA 7 process as it should be.
8 We think the NRC as required by law and good 9 policy should be taking the same steps. All of these 10 things should be on the table. And may well be that TVA 11 will decide that we don't need to build this plant given 12 the nuclear power now is costing what it is, 10 or 11 13 cents per kilowatt hour , and advances in technology and 14 changes in technology that we can turn to wind or solar 15 power.
16 If they do that, obviously, the environmental 17 advantages so we are saying that all these things must 18 be evaluated at the same time and a fair adjudication of 19 this case.
20 We think that the integrated resource plan 21 just should be part of the record. If our motion to add 22 it as a supplemental basis is denied, then, I think this 23 panel has the power to take judicial notice of it. 87 24 It is in the Federal Register. We are not 25 trying to pull a fast one here. We are just making a INTERIM DRAFT COPY
1 point that TVA is very publicly re-evaluating all its 2 energy options and NRC staff may decide that the more 3 cost effective going about this than building plants 4 that have been sitting there for 25 years. That is the 5 sum and substance is the basis of our contention.
6 >> JUDGE BOLLWERK. All right, Judge Baratta?
7 >> JUDGE BARATTA: I'll come back.
8 >> JUDGE BOLLWERK: Okay.
9 I guess one of the -- you have attempted to 10 define this fairly broadly in terms of alternative 11 energy sources. TVA had information in its original 12 letter and which staff also looked at and discussed in 13 their safety evaluation that and maybe the environmental 14 system as well, questions about cost per kilowatt of 15 installed capacity.
16 That is not something you really addressed in 17 this contention. You didn't directly take on the TVA 18 assertion about installed -- the cost of installed 19 capacity per kilowatt hour?
20 >> MR. DOUGHERTY: That was our intent. Our 21 intent if you take an overall look at the final 22 delivered cost of electricity from these reactors and 23 compare it to the final delivered cost from alternative 88 24 sources, the reinstatement reconstruction option is more 25 expensive than environmentally. Or, and this is based INTERIM DRAFT COPY
1 in part on the material that we submitted in the 3, 4 2 combined license proceeding for Bellefonte 3 and 4 in 3 which our expert, Dr. Makhijani submitted statements 4 explaining why it's cheaper for both 3 did 4 and 1 and 5 2.
6 >> JUDGE BARATTA: You're comparing apples and 7 oranges because you're comparing a plant at one time 8 that was upward of 80 percent complete and based on 9 1978 dollars with plants being built with 2010-dollars 10 which it's not going to cost that to build that plant.
11 I saw what he had there and the cost numbers, 12 they are just irrelevant.
13 >> MR. DOUGHERTY: Then, maybe your opinion 14 judge, you may be right. I can't go the merits of what 15 he is claiming.
16 I don't think you can assume that since one of 17 these plants is 78 percent and the other is 58 percent 18 complete that the cost of completing construction is 19 simply going to be 22 or 42 percent more respectively 20 for a lot of reasons. One is A, they have been inside 21 these plants chopping them up so who the heck knows 22 what needs to be done to complete construction. And 23 that could be a nightmare of emerging and financial 89 24 challenges. Secondly, plants have been sitting there 25 for 20 years so there is no way of knowing. And INTERIM DRAFT COPY
1 finally, that is a very unusual reactor design, Wilcox 2 2 and 5. There are a lot of uncertainties that should go 3 into any calculation of cost.
4 Beyond that, I'm at the limit of my ten here 5 but we do think for all these reasons, there is an issue 6 that should be considered admissible.
7 >> JUDGE BOLLWERK: Anything further.
8 Judge Sager?
9 >> JUDGE SAGER: As I understand it, what 10 you're saying is you're happy with the procedure that 11 TVA is taking a look at all the resources. And you 12 heard that all the operating stages will all be reviewed 13 any way and would lead to TVA responsibility.
14 So what is the compelling argument to do this 15 right now?
16 >> MR. DOUGHERTY: Well, we are saying just 17 the opposite. We don't know if it's TVA's 18 responsibility or not, but they are doing it. We think 19 it is a rational way to approach their energy. On the 20 other hand, we do believe that the NRC is required to do 21 it. This is part of any NEPA review and part of the 22 general reactor review criteria is to evaluate the 23 alternative sources. So it's actually just the 90 24 opposite. TVA is not required to do this and NRC is.
25 >>JUDGE SAGER: Okay, thank you.
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1 >> JUDGE BOLLWERK: Did the TVA process a 2 public process?
3 You have an input into it or is it something 4 jTVA is doing internally --
5 >> MR. DOUGHERTY: Well, if you asked me 6 yesterday, I would say public process, we see public 7 communications going on this morning.
8 I learned this morning, they done an 9 environmental assessment on CP reinstatement.
10 And I'm surprised. I guess it's in the system 11 somewhere. So I can't really speak for what is 12 happening behind closed doors but some of it is being 13 conducted in the open.
14 >> JUDGE BOLLWERK: We may have to talk to TVA 15 about that. What you just said raised a question for 16 me; with respect to environmental assessment where they 17 are looking at one plant, either one BMW AP1000, you 18 haven't filed comments I take it on that?
19 >> MR. DOUGHERTY: Just to get the right 20 term, this is the draft supplemental EIS?
21 >> JUDGE BOLLWERK: Correct.
22 > MR. DOUGHERTY: Yes. we have been involved 23 and submitted comments. 91 24 >> JUDGE BOLLWERK; I see. But the EA in 25 terms of reinstatement, you have in terms of the CP INTERIM DRAFT COPY
1 that other environmental impact assessment that is going 2 on --
3 >> MR. DOUGHERTY: We had a hearing over the 4 winter and we had lots of our members down there.
5 >> JUDGE BOLLWERK: Anything further Judge 6 Baratta? Judge Sager?
7 >> Judge Sager: Nothing fur they were.
8 >> JUDGE BOLLWERK: Then, turn to TVA, please.
9 >> MR. CHANDLER: My name is Lawrence 10 Chandler.
11 Once again, the focus of this contention has 12 morphed somewhat from what it started to be in the May 13 8th petition to something different, but candidly, 14 something that is more accurately reflects the substance 15 of those contentions itself.
16 The contention goes to alternatives, it goes 17 to cost, does not go at all to TVA showing of good 18 cause.
19 I think before I get further into discussion, 20 I think what Mr. Dougherty just explained makes very 21 clear that the process and documentation prepared by TVA 22 in connection with not only the instant reinstatement 23 request but generally in connection with its energy 92 24 development is a public process.
25 The documents are available, the public does INTERIM DRAFT COPY
1 have an opportunity to fully participate in the 2 development of those documents and contribute to TVA's 3 thoughts in going forward on energy production.
4 The IRP is a good example.
5 The IRP is a process that TVA has embarked on 6 as part of a much larger program.
7 we think it meets its energy needs and it's 8 outside the scope of the NRC's licensing process and 9 it's certainly outside the narrow scope of the 10 reinstatement proceeding itself.
11 What we repeatedly hear, we heard yet once 12 again, that the NRC needs to put all of these things on 13 the table, and that's simply not the case.
14 This case is focused on TVA's statement for 15 good cause in this proceeding.
16 This is not an opportunity to periodically 17 review health and safety issues, nor is it an 18 opportunity to periodically review the cost of this 19 facility or possible alternatives to it.
20 Opportunities for that to some extent present 21 themselves in the future should TVA proceed with its 22 operating license application and otherwise admissible 23 contentions as proffered in that regard. 93 24 But this is not simply the opportunity to do 25 that.
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1 One of the points they make in their petition 2 is that at the end of the day, 1 and 2 is equally 3 obsolete before they come on line which they contend 4 weighs against good cause.
5 But again, as I mentioned a second ago, that 6 simply is not within the scope of this proceeding.
7 It does not raise a genuine dispute material 8 to any finding that must be made in this proceeding as 9 required by 10 CPR 2.309 (f) 1, 3, 4 or 5.
10 The reasons given by TVA for seeking 11 reinstatement were explained by Ms. Sutton earlier. To 12 basically reinstate them, TVA has asserted that there 13 are generally signs of increasing demand. TVA notes 14 that progress has been made in the construction of these 15 units which have a bearing on the overall cost of 16 production at the end of the day.
17 The existing investment makes it possible 18 that future costs of capacity would be lower than 19 construction. And that the possible future problems 20 with access components which could contribute to 21 increased cost of production by new facilities.
22 Overall, TVA explained in its August, 2008 23 request that reinstatement of the CPs was a necessary94 24 precursor to subsequent determination of whether units 25 1 and 2 had potential options for base-load capacity.
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1 And as I said before, at bottom, the Petitioners would 2 have this Board -- petitioners would have this Board do 3 exactly what it should not and that is superintend the 4 business judgments of the applicant. Commission made 5 quite clear that is not part of the process.
6 Petitioners focus on exclusively on cost 7 projections for alternative energy sources.
8 In the Bellefonte units, 3 and 4 environmental 9 report, this is not performed through dealing with costs 10 related to Bellefonte Units 3 and 4.
11 In fact, if you look at the nature of their 12 proposed contention, it is basically a repackage of 13 proposed contention, 16 in Bellefonte Unit 3 and 4 14 proceeding.
15 And I think Mr. Dougherty recognizes that. He 16 spent a great deal of time in connection with that 17 proceeding. While portions of that contention were 18 admitted, the aspects addressing various subjects that 19 they seek to raise here as I understand it were rejected 20 in that proceeding.
21 But left unexplained at the end of the day is 22 how this is material to any finding this Board must 23 make. 95 24 That is the Petitioner's burden and they have 25 not carried it. And for that reason, this contention INTERIM DRAFT COPY
1 should be rejected.
2 In their reply, we note for the first time and 3 this is not something found in the initial petition.
4 They continued there is really no relevant 5 guidance on good cause. And I think we heard a great 6 deal of discussion earlier, there is not much I would 7 like to add at this point.
8 But the Commission has made abundantly clear 9 in many prior decisions, the scope of the CP extension 10 proceeding and likewise, reinstatement proceeding is 11 very narrowly focused on the good cause provided by the 12 applicant.
13 I would note that in prior in instances , CP 14 extensions have been sought for a variety of reasons and 15 many based on economic judgment, others based on 16 technical issues which we require extension of the 17 construction periods originally proposed.
18 In fact, if you look at the history of the 19 Bellefonte Unit, 1 and 2, CP extension, they have also 20 been based on large financial judgment, based on 21 changes and need for power and cost projections that 22 have been made over time.
23 Despite the rhetoric, petitioners at the end 96 24 of the day, claim that simply the wrong standard is 25 being used here, that in fact the right standard for e INTERIM DRAFT COPY
1 issuance of construction permits from the outset as if 2 they were holding new licensing actions.
3 Commission's decision in CLI 1006 makes clear 4 that is simply not the case. And for that reason, 5 should be rejected. The supplement they filed in July 6 of 2009 adds really nothing to that.
7 The fact that TVA, it is our position on 8 earlier on the IRP process for its greater need does not 9 change the scope of matters that is properly before this 10 agency.
11 In terms of our motion to strike that 12 supplemental information, I don't think there is any 13 further that need to be added to what we argued in that 14 motion so I will not dwell on that.
15 It is simply not relevant to TVA statement 16 of good cause in this proceeding. and I would point 17 out to answer the question the Board raised on page 7 of 18 its Order, we do believe that to the extent an 19 admissible contention can be framed, the operating 20 license proceeding would be an appropriate occasion for 21 such consideration should TVA ultimately decide to 22 pursue an operating license for these facilities.
23 >> JUDGE BARATTA: I was very confused about97 24 why economic considerations are not part of the good 25 cause.
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1 It seem as though, there are several points in 2 the TVA August 26, 2008 letter where it talks to those 3 types of issues.
4 >> MR. CHANDLER: The economic considerations 5 pose are good cause here are different from the 6 considerations that petitioners would bring to bear 7 here.
8 What they are trying to raise really are 9 issues related to cost compared to alternative 10 suggestions that alternatives are now more cost 11 efficient with the completion of construction of 12 Bellefonte 1 and 2.
13 That is not part of the good cause showing in 14 this case.
15 >> JUDGE BARATTA: But as part of their 16 pleading they raise, just the overall cost.
17 >> MR. CHANDLER: Right, and part of what TVA 18 is trying to do is reassess what those costs would be by 19 doing that. The cost of completion, not the relevant 20 cost of generating power.
21 >> JUDGE BARATTA:: Well, admittedly, they 22 argue that too. They also argue the --
23 >> MR. CHANDLER: That is not an issue 98 24 focused on reinstatement construction permits here. It 25 is an issue that to the extent it has any particular INTERIM DRAFT COPY
1 relevance, in the context of an operating license.
2 >> JUDGE BARATTA: Your letter says a major 3 factor arriving change in power generation economics 4 since 2005. That seems to me to be opening the door at 5 this point for challenge of reinstatement of good cause.
6 >> Mr. Chandler: I think it continues beyond 7 that and those factors are not taken out I think by the 8 petitioners in their petition.
9 >> JUDGE BARATTA: The cost for kilowatt to 10 install capacity has continued to increase. So you 11 raise a number of the same issues raised by the 12 Intervenor. I'm looking at the second and third 13 paragraph on the August 26 letter and on --
14 >> JUDGE BOLLWERK: On page 5, I think if 15 we're looking at the same thing.
16 >> MR. CHANDLER: Bear with me one second.
17 >> JUDGE BARATTA: Take your time. Yes, page 18 five.
19 >> MR. CHANDLER: I'm sorry, you were 20 referring to since that decision was made?
21 >> JUDGE BARATTA: 2005, that was one.
22 And the preceding paragraph, actually, the 23 first full paragraph on the page, major factor is the99 24 change in power generation, economics since 2005.
25 And it also mentions and later in the third INTERIM DRAFT COPY
1 full paragraph, it discusses as a result of the 2 potential for low cost kilowatt.
3 It just seems like you're arguing the same 4 points.
5 >> MR. CHANDLER: I think Your Honor, the 6 response we are making on page 40, responds to points 7 you're making. We note that Petitioners seek to 8 directly challenge financial data -- -- I'm reading from 9 a prior pleading financial data and cost analysis for 10 nuclear power plants and alternative energy sources 11 contained in the BLM Unit 3 and 4 environmental report.
12 It is not related to 1 and 2. At the same 13 time, they completely ignored TVA stated reasons for 14 seeking reinstatement of the CPs for Bellefonte's unit 1 15 and 2. To determine whether Bellefonte units 1 and 2 16 should be regarded as potential base-load generating --
17 as a potential base-load generating option.
18 Consequently, petitioners again March 2000 order by 19 failing to squarely challenge or otherwise controvert 20 TVA's good cause justification as reinstatement of the 21 CP.
22 In other words, they are not challenging the 23 assertion that TVA has made as a basis for seeking 100 24 reinstatement for Units 1 and 2.
25 Rather, they are looking at cost data and INTERIM DRAFT COPY
1 suggesting their cost data reflecting the units 3 and 4 2 combined operating license proceeding is a separate 3 proceeding in which instance, consideration of costs are 4 valid considerations for initial licensing of a facility 5 not, the broad question of cost -- not in the narrow 6 context of what costs or how this is a factor related to 7 reinstatement.
8 >> JUDGE BARATTA: What I'm trying to 9 determine is what constitutes good cause. It seems from 10 your letter that the potential for Bellefonte's unit 1 11 and 2 would be economically superior, is in fact a 12 consideration in going forward with reinstatement under 13 the good cause.
14 I'm not at all discussing what the Intervenor 15 has -- intervene for what put for the but trying to 16 determine what constitutes good cause.
17 It seems like your letter on the economic side 18 is something that goes into the fact of good cause 19 determination.
20 >> Mr. Chandler: It is a element of good 21 cause in a sense but what is missing conspicuously, 22 missing in our view is the basis for their suggestion 23 that the cost and considerations given by TVA for units 101 24 1 and 2 are wrong.
25 It's not just the subject matter necessarily INTERIM DRAFT COPY
1 categorically excluded, but there are additional factors 2 that have to be addressed in connection with the 3 contention that they simply have not satisfied.
4 >> JUDGE BOLLWERK: The question about the 5 integrated resource plan, that process is ongoing, I 6 take it?
7 >> MR. CHANDLER: Yes.
8 >> JUDGE BOLLWERK: And you have a sense of 9 when it will be completed?
10 >> MR. CHANDLER: That I'll ask Mr. Vigluicci 11 to address.
12 >> MR. VIGLUICCI: Just a second.
13 >> JUDGE BOLLWERK: Surely.
14 >> MR. VIGLUICCI: I know we have not just 15 issued the draft version yet of the IRP.
16 I think later on this year, it is scheduled to 17 be released and I think there is at least a year period 18 for the issuance of a final IRP.
19 >> JUDGE BOLLWERK: Probably if I heard you 20 looking at the end of 2011, that draft at the end of 21 this year, final by the end oF 2011 approximately.
22 >> MR. VIGLUICCI: Mid to late part of 2011.
23 >> JUDGE BOLLWERK: How would TVA propose102 to 24 integrate whatever analysis, lessons learned, 25 information received from that process, back for INTERIM DRAFT COPY
1 instance, the COL 3 and 4 proceeding? I mean , there 2 are a number of statements made obviously in the 3 environmental report you submitted that had statements 4 about costs and alternative energy sources.
5 >> MR. VIGLUICCI: I think we have to look at 6 what we came up with and then make a decision whether or 7 not that was significant information and we have to 8 update our COL application at that time.
9 >> JUDGE BOLLWERK: And I take it then that 10 would be integrated as well into the operating license 11 application in this case?
12 >> MR. VIGLUICCI: That's correct.
13 >> JUDGE BOLLWERK: More direct question with 14 respect to supplementing a contention: What's the 15 proper process here? If something comes up in there 16 they want to add, what should they do?
17 >> MR. CHANDLER: As we pointed out in our 18 motion to strike, that should have been accompanied by a 19 motion. There is not just simply an unbridled 20 opportunity to continuously supplement the petition to 21 intervene when something strikes a petitioner as 22 warranting introduction. It is a process for doing so.
23 They failed to follow that process and for103 24 that reason, should be stricken.
25 Beyond that, we note that it's also flawed in INTERIM DRAFT COPY
1 that it really has no direct bearing on it and a good 2 cause showing that's required in the context of 3 construction permit reinstatement proceedings such as 4 this.
5 >> JUDGE BOLLWERK: The direct question is 6 they did make a direct attempt to address the issues in 7 2.309 and go with supplementation or amending or filing 8 a new contention.
9 >> MR. CHANDLER: I think they lip serviced, 10 but I don't think they subsequently addressed the 11 requirements of that.
12 >> JUDGE BOLLWERK: Your point more directly 13 is that there should have been a motion rather than 14 document supplementation?
15 >> MR. CHANDLER: I think they needed to seek 16 leave to supplement, that's correct and they failed to 17 do so.
18 >> JUDGE BOLLWERK: All right. Judge Baratta, 19 any other questions?
20 >> MR. CHANDLER: If I may, we did fully 21 respond to the proposed contention as supplemented in 22 our Answer that was filed on January 29th.
23 >> JUDGE BOLLWERK: All right, thank you. 104 24 Judge Sager?
25 >> JUDGE SAGER: Nothing here.
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1 >> Judge Bollwerk: All right. Let's turn 2 then to the NRC staff.
3 >> MR. ROTH: David Roth for the staff.
4 In general, Contention 5 in its effort to 5 attack good cause is the staff would pledge is hardly 6 toward the Units 3 and 4, rather than towards the stated 7 reasons for Units 1 and 2.
8 On that, with regard to how Units 3 and 4 cost 9 estimates played into units 1 and 2 reinstatements 10 economic considerations, it appears that TVA safety 11 behaviors and intervenor are in agreement and TVA 12 request to reinstatement.
13 Was considered the changes that have taken 14 place.
15 Further, I think everybody understands what 16 happens at the operating license stage.
17 Petitioners state that NRC is required to 18 review the NEPA power and energy alternatives and 19 operating license required to review it, the standards 20 and staff just filed brief on this in Watts Bar 21 proceeding and SACE is proceedings as is TVA. But 22 the standards at the operating license stage do not 23 require the environmental report nor the staff's EIS105 to 24 include a need for alternative analysis.
25 Commissioner Jaczko noted this in page five of INTERIM DRAFT COPY
1 his Commission voting record actually so nobody claimed 2 to be surprised by this information.
3 Should at the EIS stage, somebody wish to 4 bring forward a need for power or alternative analysis 5 issue, then through Commission case law, there is a 6 five part -- pardon me, a three part test they have to 7 show that the plant fit is proposed and it's already 8 substantially, constructed at this point, would not be 9 used to meet energy demands or would not be used to 10 replace existing or less cost- effective power. And 11 last, also the plant being proposed would not presently 12 exist a viable energy alternative to the plant being 13 proposed that would serve the area and -- service area.
14 And that's to get a waiver request to bring 15 that issue into the proceeding.
16 Otherwise, pursuant to 51 95(b), staff's EIS 17 will not continue the discussion of energy alternatives 18 or for power.
19 Likewise, in this narrow scope proceeding of 20 good cause, the staff is not required by any amount of 21 regulation to include or address the issues of need for 22 power. Correspondently, it's not part of the good 23 cause consideration at the discussions of Uits 3 and106 4
24 and its information for good cause.
25 >> JUDGE BOLLWERK: All right, Judge Baratta, INTERIM DRAFT COPY
1 anything?
2 >> JUDGE BOLLWERK: Judge Sager?
3 >> Judge Sager. I have a couple of questions.
4 You mentioned that staff apparently is not 5 going to be going into alternative need for power in an 6 operating license case for Units 1 and 2.
7 So I take it whatever then came out of the IRP 8 would or wouldn't be integrated into your analysis in 9 some way?
10 >> MR. ROTH: That would be generally 11 correct. We would have to see what exactly what it is, 12 the absence and the condition, direction of the 13 contrary. The staff's EIS does not contain need for 14 energy discussion.
15 >> JUDGE BOLLWERK: That's under Part 50 16 license, right? No, Part 52 is a different matter is, 17 that correct?
18 >> MR. ROTH: Correct, this is relevant to the 19 environmental reviews associated with Part 52 license.
20 >> JUDGE BOLLWERK: So when the IRP comes 21 out, that may have an impact relative to what the 22 staff is doing in connection with Units 3 and 4?
23 >> MR. ROTH: That may be true, Your Honor.
107 24 >> : JUDGE BOLLWERK: What's the staff 25 position relative to the proper way for Petitioner to INTERIM DRAFT COPY
1 amend their intervention petition to raise additional 2 information to put something before the Board.
3 >> MR. ROTH: Well, it was a unusual 4 situation. It was a lengthy period of time between the 5 initial pleading during which time the Commission stated 6 that there should by no further filings on these 7 matters. Thus, for this particular one, it's arguable 8 improper for them to file additional issues.
9 >> JUDGE BOLLWERK: Well, from their 10 perspective, they were not putting out additional 11 issues, they were putting out addition information to 12 support an issue they had already framed.
13 On that question of timing, are you telling 14 me it is a question of timing because the Commission 15 said everything is on hold?
16 >> MR. ROTH: Yes, Your Honor.
17 >> JUDGE BOLLWERK: So if that hold hadn't 18 been in place, what would have been the proper way to do 19 this from your perspective?
20 >> MR. ROTH: Your Honor, if the hold had 21 not been in place, they would have to meet the standards 22 for many of the contentions in the 309 where the 23 standards for initial filings in case somebody with108 24 initial party status which at this point, did not 25 achieve party status.
INTERIM DRAFT COPY
1 >> JUDGE BOLLWERK: And do they need a 2 motion or can they just file a document that would 3 discuss the standards and call -- the pleadings say it 4 is a supplement?
5 >> MR. ROTH: The fact is, in different 6 proceedings has been done differently by petitioners but 7 generally, has to get leave from Your Honors to file a 8 motion as well as the initial filing.
9 >> JUDGE BOLLWERK: All right. Anything 10 further Judge Baratta?
11 >>> JUDGE BARATTA: Nothing further.
12 >> JUDGE BOLLWERK: Judge Sager?
13 >> JUDGE SAGER: Nothing further.
14 >> JUDGE BOLLWERK: Let me then turn back to 15 joint petitioners.
16 >> MR. DOUGHERTY: Thank you Judge Bollwerk.
17 Let me first take on the question of 18 supplemental basis. People say that these licensing 19 proceedings are costly and labor intensive, and boy, 20 there is no better example than this. We just had a 21 one-and-a-half page federal register notice to send it 22 in to make sure it's on the record. And what that 23 produces is just a blizzard of motions to strike and109 24 challenges. Counsel for TVA said, we agree with that, 25 that every one knows about it and as I said before, I INTERIM DRAFT COPY
1 think it's well within the authority to take judicial 2 notice if anything from the federal register.
3 So, I'm just disinclined to continue to 4 fight over this. Now, I was fascinated to hear that 5 good cause as considered by TVA does not involve matters 6 related to TVA business judgment.
7 We agree with that. Good cause must mean 8 something else. Certainly, we're not here to review 9 TVA's business decisions. We don't have expertise in 10 that.
11 But I think what this really demonstrates, we 12 are all at sea here trying to figure out what the 13 Commission sent us off to do and that question need to 14 be resolved as a threshold matter. I think the way for 15 to us to really characterize our claim here is that TVA 16 has no idea what it 's going to do. That is a good 17 thing.
18 There are a lot of choices. There's a lot 19 of cost in the environmental impact associated with this 20 choice. And It's going back to the drawing board 21 saying what are we going to do? Are we going to vote 22 one or four or something in between, or zero.
23 Are we going to wind? Are we going to go110 to 24 Solar. We're going to figure this out. And what the 25 associated panel did in 3, 4 proceedings said, when you INTERIM DRAFT COPY
1 guys figure that out, come back to us and we will start 2 to litigate this case. But in the meantime, things are 3 so uncertain that we don't have anything to focus on.
4 And I think if it makes sense to put the 3, 4 5 proceeding on hold, then I don't know how we reach a 6 have different result here.
7 Now, the way to characterize our contention is 8 that all of these alternatives must be evaluated by 9 staff. Certainly being evaluated by TVA and we didn't 10 think it would be appropriate for this Board to say, 11 none of these questions are relevant, and yes, we are 12 going to affirm reinstatement of the CPs.
13 At a minimum, these issues actually formed a 14 good reason to postpone adjudication of these questions 15 until the applicant figures out what the heck they want 16 to do. That concludes my rebuttal.
17 >> JUDGE BOLLWERK: All right. Judge Baratta?
18 >> JUDGE BARATTA: You've heard the claim 19 made that your basis for this contention really used 20 information that's not germane, namely, the cost of 21 Units 3 and 4.
22 Do you care to respond?
23 >> MR. DOUGHERTY: Yes, we cited in our papers 111 24 other materials outside the scope of Dr. Makhijani's 25 affidavit including the Keystone documents, a fairly new INTERIM DRAFT COPY
1 study of cost of nuclear power. And we intend to find 2 other information to present to the panel.
3 But it's more than just 3 and 4. As I said 4 before, no one know and I don't think any one has 5 alleged how much it's going to cost to complete 6 construction of Units 1 and 2. That's probably born by 7 more uncertainty than 3 and 4 even though they are in 8 large measure completed, because in large measure, they 9 been deconstructed and the whole idea of trying to 10 resume construction on the plant after it been rusting 11 away for 20 years, no one knows. And that's part of 12 the equation here; how much will wind cost? How much 13 will solar cost, and how much is it going to cost to 14 reinstate, -- to resume construction of these two units?
15 You can't consider those questions without 16 putting everything on the table at the same time.
17 So Makhijani's information doesn't go to that 18 cost of resuming construction of 1 and 2. But other 19 information -- I think the burden should be on TVA and 20 the and the Staff, probably TVA to prove to this panel 21 what the cost is going to be. And when that 22 information is part of the record, then, it can be 23 evaluated in light of the alternative. 112 24 >> JUDGE BARATTA: Well, we have contention 25 admissibility rules we have to follow and one of those INTERIM DRAFT COPY
1 is you have to provide a basis for expert opinion of 2 facts.
3 I'm just trying to get at what are your facts 4 or expert opinion that to supports that and it seems to 5 be based upon the cost of construction is what I just 6 heard.
7 MR. DOUGHERTY: You will find a citation in 8 our petition to the studies that were done by the 9 keystone Center. And we think that has a lot to do with 10 the final delivery cost of nuclear power.
11 And I'm afraid that beyond that, Judge 12 Baratta, I'm at the limit of my technical understanding.
13 I'll ask my colleague Mr. Zeller if he wants to weigh 14 in.
15 If that would be okay, he is the author of the 16 contention and frankly knows more about this than I.l.
17 >> JUDGE BOLLWERK: Mr. Zeller is not -- he's 18 a representative of the party. We said one counsel or 19 one representative per party on a particular contention.
20 You want to have an objection here for 21 Mr. Zeller?
22 >> MR. CHANDLER: Only to the extent I trust 23 we are not going to get into taking testimony on this 113 24 matter.
25 >> JUDGE BOLLWERK: I don't think we can. I'm INTERIM DRAFT COPY
1 not doing to put him under oath. So anything Staff want 2 to say?
3 >> MS. JONES: We have no objection.
4 >> JUDGE BOLLWERK: All right Mr. Zeller, why 5 don't you go ahead then, thank you.
6 >> MR. ZELLER: . Thank you Your Honor.
7 The additional information citations and 8 factual information which is included in our filings 9 address general costs of power, both in terms of capital 10 costs, construction costs of power are all within those 11 documents.
12 So, it's not specific only to AP 1,000 Units 3 13 and 4 which are also co-located with these Units 1 and 14 2.
15 So I just wanted to add that in the case note 16 study and the other citations are much broader in their 17 addressing of both of those liberalized costs and 18 capital costs.
19 >> JUDGE BOLLWERK: All right, let me turn to 20 TVA and the Staff to see if you want to respond to that 21 and then I'll give you a final opportunity.
22 Anything TVA want to say about what we just 23 heard? 114 24 >> MR. CHANDLER: No, sir.
25 >> JUDGE BOLLWERK: Staff?
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1 >> MR. ROTH: Your Honor, I would just 2 reiterate again, that just as absent a well pled waiver, 3 the prima facial evidence, should be waived, that it's 4 needed for power and energy alternatives which 5 encompass power generation, the cost of alternative 6 power are not something the staff will have in its own 7 EIS should TVA come in and make an application for it.
8 >> JUDGE BOLLWERK: All right, anything 9 further the petitioner want to say on this point?
10 >> MR. DOUGHERTY: Would it be okay if I 11 address that, Your Honor?
12 >> JUDGE BOLLWERK: Yes.
13 >>MR. DOUGHERTY: The information that we 14 submitted about cost was derived in part on the work 15 that Dr. Makhijani got on 3 and 4. But we asked him to 16 review that information in the context of the 1, 2 17 context and he is available to us to be retained to 18 testify specifically of 1 and 2. That is the 19 information we intend to offer to the panel if we 20 establish the admissibility of this contention.
21 >> JUDGE BOLLWERK: All right. Judge 22 Baratta, anything further?
23 >> JUDGE BARATTA: Nothing. 115 24 JUDGE BOLLWERK: Judge Sager, do you have 25 anything?
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1 >> JUDGE SAGER: Nothing further.
2 >> : JUDGE BOLLWERK: At this point, it is 3 about a quarter to 12:00. I think the next contention 4 we are looking at, number six will be one that first of 5 all, we set it for 20 minutes per side. And I suspect 6 it may involve some lengthy discussion given I think one 7 that goes to the heart of some of the Petitioner's 8 issues.
9 My suggestion would be for to us go ahead and 10 take a break at this point. Is that all right with you 11 Judge Sager?
12 >> JUDGE SAGER: That's fine. What time shall 13 I come back?
14 >> JUDGE BOLLWERK: Why don't we go ahead and 15 make it easy for everyone. Let's say let's come back 16 at one o'clock. I think it's a little more than an 17 hour1.967593e-4 days <br />0.00472 hours <br />2.810847e-5 weeks <br />6.4685e-6 months <br />. There is a cafeteria here in the building so 18 hopefully, it should not be a problem for folks to get 19 in to that or hopefully, one of the restaurants in the 20 area. That gives us a little bit more than an hour.
21 We'll be back at 1:00 p.m., eastern time.
22 Thank you everyone.
23 (Whereupon luncheon recess was taken). 116 24 25 INTERIM DRAFT COPY
1 JUDGE BOLLWERK: : Judge Sager, everything 2 all right where you are?
3 JUDGE SAGER: : Just fine. I don't see your 4 picture yet, but I assume it will come up soon.
5 JUDGE BOLLWERK: : And you are hooked in to 6 the teleconference?
7 JUDGE SAGER: : I am hooked into the telephone 8 on mute and I can see your picture.
9 JUDGE BOLLWERK: : Thank you. Back on the 10 record if we could, please.
11 Good afternoon, everyone. We're here to --
12 this afternoon, to continue the official prehearing 13 conference and oral arguments on the Bellefonte Units 1 14 and 2 construction permit reinstatement, proceeding the 15 arguments with respect to the admissibility of 16 Contentions 6, 7, 8 and 9 we will talk about this 17 afternoon.
18 Again, a reminder, cell phones should be off 19 or on vibrate. And no cell phone conversations 20 obviously in this room while the board is in session.
21 With respect to Contention 6, the title, the 22 reinstatement was improper because TVA has not and 23 cannot meet the NRC's quality assurance and quality 117 24 control QAQC requirements.
25 Mr. Dougherty, I turn to you.
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1 MR. DOUGHERTY: : Mr. Chairman, when I 2 explained it to my wife this involved two nuclear 3 reactors that had been partly completed, left as rust 4 for 20 years and abandoned for three years and they are 5 trying to resume construction. Her response is, well, 6 are you kidding. What she meant was how do they 7 maintain quality assurance, because that's the question 8 that leaps out to everyone when they hear the 9 circumstance. As you suggest, this is at the heart of 10 this case and our contentions.
11 Just as Ford Motor Company says quality is job 12 one, the Nuclear Regulatory Commission says that quality 13 assurance is criteria one, indeed, it's GDC number one.
14 Quality assurance is more than just the 15 regulatory requirement. It's a philosophy, a culture.
16 It's a stance that an applicant has to stay in 17 consistently. It's, kind of, like a chain of custody 18 for evidence or for samples.
19 Chain of custody has to be maintained the 20 entire Ross from the time the sample is taken until it 21 is tested and admitted into evidence, and if you lose 22 chain of custody, the quality of that sample has been 23 eliminated. There is none. You have to have chain 118 of 24 custody the whole time. The same is true of quality 25 assurance. If there is a gap in quality assurance, INTERIM DRAFT COPY
1 there is no quality assurance and you have to go back 2 and start from the beginning. This concept is laid out 3 by our expert witness, Mr. Gunderson, and this is 4 emphasized by the NRC staff member, Joseph Williams, who 5 said not only has the QAQC process broken down entirely 6 but there's actually evidence that items in the reactors 7 have degraded and been compromised.
8 So it's more than a matter of not being able 9 to prove everything is meeting the NRC standards, but 10 certain things are not. That's the problem here.
11 There's been filings recently from TVA suggesting they 12 are back on track and maintaining the right kind of 13 documents, but that is not good enough. You cannot go 14 back and restore quality assurance once it has been 15 lost.
16 There are a lot of examples of that. General 17 design Criterion 13 says for a lot of components there 18 is a special protective environment that must be 19 maintained. A lot of components have parameters whether 20 it's temperature ranges, humidity, ph, the certain --
21 halogen lights emit halogen gasses which can react with 22 crucial reactor components, and as a result there is a 23 prohibition on the use of halogen lamps. 119 24 But for the three years, when this plant was 25 cold and dark and outside the NRC's regulatory jury, no INTERIM DRAFT COPY
1 one knows if they were using halogen lamps or if they 2 maintained humidity levels or temperatures. Every 3 component has been compromised or may have been 4 compromised and as Mr. Williams suggests in his 5 statement, the only way to verify this plant can be 6 constructed safely is to start from the beginning and 7 make the applicant prove to the NRC staff every SSC out 8 there meets all appropriate quality requirements.
9 Too bad that there's not a way to go back and 10 fix that. It would make more sense if somehow that gap 11 could be revisited cured, but you can't. And that point 12 has been emphasized by Chairman Jaczko, as well. We 13 lost quality assurance.
14 All I say about that is Mr. Williams has 15 gotten plaudits for his coming forward and will probably 16 get a plaque he can put on the wall, but none of that 17 matters. What matters is that you, the licensing board, 18 pay attention to what they are saying. It has to be 19 considered. If everything he is says is swept under the 20 rug, it is just a waste.
21 So that concludes my opening remarks on QAQC.
22 Thank you.
23 JUDGE BOLLWERK: : Let me turn to Judge 120 24 Baratta. Do you have questions?
25 JUDGE BARATTA: : No, not at this time.
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1 JUDGE BOLLWERK: : Judge Sager?
2 JUDGE SAGER: : Nothing.
3 JUDGE BOLLWERK: : You mentioned, as you are 4 aware, they requested and were given deferred status 5 which included, I guess, the indications being that the 6 QAQC, there was a program in effect and, in fact, they 7 were going to take actions consistent with that to bring 8 everything back up to snuff, as it were.
9 How does that affect your contention? You 10 have not filed anything further or discussed any of that 11 information.
12 MR. DOUGHERTY: : No, our contention stands.
13 What our expert tells me that, and again, sorry to 14 repeat myself, it is like chain of custody. Once it has 15 been interrupted, it can't be restored. So getting back 16 on track, getting back into compliance with the QAQC 17 protocol does not recover the missing three years. We 18 don't know what happened, we don't know if parts 19 corroded. We know parts were cannibalized, but that 20 invalidates any attempt.
21 We would have to go back on component by 22 component basis, probably with direct physical 23 examination, to make sure that it's still in operative 121 24 and in good shape. You cannot -- QAQC lets you assume 25 that when you put things in this place, they remain INTERIM DRAFT COPY
1 workable. Those assumptions cannot be made any longer.
2 JUDGE BARATTA: : I don't disagree. I agree 3 100 percent, but I do see in the letter from TVA that it 4 says equipment not subject to preventive maintenance 5 would be entered in the program and prohibited from 6 being placed in service without further evaluation, and 7 having been fully restored and replaced. Isn't that 8 what you are saying, and Mr. Gunderson's saying , you 9 have to check out the stuff that hasn't been maintained?
10 MR. DOUGHERTY: : Yes, but in the context of 11 adjudicatory proceeding. The burden should be placed on 12 them to demonstrate to this panel they have, in fact, 13 done that and they can now demonstrate that everything 14 meets quality requirements.
15 JUDGE BARATTA: : That is not quite what your 16 contention said, though. Well, it did not even 17 acknowledge the existence of a corrective action 18 program.
19 MR. DOUGHERTY: : Well, there may have been a 20 lot of facts and existence we didn't acknowledge, but 21 our central point remains unaffected by that. If once 22 interrupted, I don't know actually what corrective 23 action is. I don't know to that purports to "cure" 122 24 every problem that may exist. We've been told by our 25 attorneys it can't be cured, you have to go back to INTERIM DRAFT COPY
1 square one and recertify how every bolt was turned, 2 every component was tested. It's thought my 3 understanding that is what they have in mind, but if 4 that's incorrect, I'll have to stand corrected.
5 JUDGE BOLLWERK: : Anything further?
6 JUDGE BARATTA: : I refer, again, to page six.
7 You need to read that. That seems to be -- page six of 8 the letter dated the 26th of August.
9 MR. DOUGHERTY: : 2008?
10 JUDGE BARATTA: : Yes.
11 MR. DOUGHERTY: : I'll do that. I was going 12 to suggest I do it on rebuttal.
13 JUDGE BOLLWERK: : Judge Sager, anything you 14 have at this point?
15 JUDGE SAGER: : No, nothing for me. Thank 16 you.
17 JUDGE BOLLWERK: : We will go to TVA and come 18 back to petitioners if they have any response to that.
19 MR. VIGLUICCI: : Thank you, Mr. Chairman.
20 In the originally proposed contention, we started with a 21 suggestion that since termination of the construction 22 permits in 2006 the facility was not maintained in 23 accordance with the requisite NRC quality assurance 123 24 requirements, or subject NRC oversight, and, therefore, 25 the material condition is indeterminate, though we hear INTERIM DRAFT COPY
1 that the plants have not been covered by quality 2 assurance program for 20 years. That's clearly not the 3 case. Replete throughout the August 2008 letter, 4 requesting reinstatement of the construction permits and 5 as represented in the answer to the petition and other 6 documents, the very purpose for which TVA has sought 7 reinstatement is to reexamine the plant, reestablish and 8 determine what it's material condition is and take those 9 steps necessary to assure compliance with quality 10 assurance requirements as they deem appropriate in terms 11 of their overall decision whether to proceed with the 12 facility.
13 This proposed contention, like the other 14 contentions, again, doesn't challenge TVA's statement 15 good cause for seeking good cause for construction 16 permits and is outside the scope of this proceeding. It 17 lacks any adequate support, other than a sweeping 18 assertion that you cannot restore confidence in the 19 structure systems and components of the facility. There 20 is simply no basis for those suggestions and, therefore, 21 the contention should be rejected as not complying with 22 10 CFR, section 2.309, f1, 3, 4, and 5. In fact, this 23 contention, as I said a moment ago, simply misses the 124 24 point.
25 TVA has already expressly recognized that INTERIM DRAFT COPY
1 structures -- that there are structures that have been 2 substantially completed, that there are others that need 3 more activity, more inspection, to revalidate in terms 4 of compliance with NRC requirements, and those are the 5 efforts that it wishes to undertake under -- and is 6 preceding to undertake under the reinstated construction 7 permits.
8 The nuclear quality assurance program at 9 Bellefonte's units one and two has been reestablished 10 and is being implemented, and the NRC staff has 11 inspected that program and confirmed its adequacy and 12 has resumed appropriate inspection and oversight 13 activities to assure NRC requirements. They are 14 addressing the plants material condition to determine 15 what further may have to be restored or replaced as the 16 need arises.
17 The NRC reviewed that, conducted inspections, 18 and found it to be acceptable. That Chairman Jaczko and 19 Mr. Williams may have had differing views, in a sense, 20 this is not extraordinary. The NRC has a long and 21 well-established process, as I think the staff earlier 22 acknowledged, encouraging staff members to express 23 differing views or non-concurring views, as the case125 may 24 be, and it is clear that the commission's internal 25 processes recognize the possibility that you will not INTERIM DRAFT COPY
1 have unanimity among the commissioners in reaching their 2 decisions.
3 But what is most significant in this regard is 4 the points raised by Mr. Williams and by the chairman in 5 their differing views on this matter, were fully and 6 completely addressed by the staff and by the commission 7 in resolving the matters that were before them for 8 decision.
9 In January 2010, petitioners filed a 10 supplemental basis for this contention in which they 11 provide documentation regarding attending coupling 12 failure and alleged QA deficiencies with respect to 13 that. Again, as with respect to proposed contention 5, 14 the supplemental basis for proposed contention 5, TVA 15 filed a motion to strike largely on the same grounds 16 that were identified for its earlier motion to strike.
17 At bottom, the approach that petitioners would 18 have us take deprives other parties from an opportunity 19 to respond to the contentions, and all the bases as they 20 are represented, if they are simply able at will to file 21 additional bases and positions with respect to the 22 issues. Nevertheless, we did respond to the substance 23 of this proposed contention in our January 29th answer.
126 24 As noted there, fundamentally it's just an example of 25 the originally proposed contention without adding INTERIM DRAFT COPY
1 anything new that is in itself material to the 2 proceeding.
3 In short, the contention lacks an adequate 4 basis, it's insufficiently pled and is vague, and for 5 that reason should be rejected.
6 I would also note, as the board has inquired 7 whether there are other appropriate avenues which could 8 be employed to get resolution of these issues, in fact, 9 there are two. Clearly to the extent petitioners have a 10 concern that their current ongoing quality assurance 11 issues that may affect public health and safety, the 12 avenue of 2206 is a very viable approach.
13 Alternatively, these are matters that will be 14 addressed should TVA decide to pursue an application, 15 its application for operating licenses in connection 16 with the safety evaluation of the facility in that 17 regard. Assuming they are otherwise admissible, I would 18 expect they could propose a contention at that point.
19 That would be the right opportunity, the findings that 20 have to be made in that regard by the commission before 21 issuing an operating license or the kind of findings to 22 which these kind of issues -- issues have bearing.
23 That completes my position, Mr. Chairman. 127 24 JUDGE BOLLWERK: : All right. Judge Baratta, 25 any question?
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1 JUDGE BARATTA: : In your prepared statement, 2 you made reference to completed structures or something 3 to that. Could you --
4 MR. VIGLUICCI: : I think as noted by both TVA 5 in its request, its August request, and by the staff in 6 its safety evaluation report, the construction permits 7 here having been issued in 1974 were used. The 8 containment structure is there in substantial part, 9 cooling towers are there. There are other structures 10 also that are -- that exist.
11 JUDGE BARATTA: : But, I understand that. You 12 seem to make a distinction between those of ones that 13 were not complete relative to QA that -- did I 14 understand you correctly?
15 MR. VIGLUICCI: : No, I wasn't really trying 16 to draw a distinction over there. The point is, 17 clearly, the activities that were conducted in the past 18 were conducted under appropriate quality assurance 19 requirements.
20 JUDGE BARATTA: : And for how long were they 21 not under a QA program?
22 MR. VIGLUICCI: : Full QA program, I think, 23 it's roughly in the neighborhood of three years since 128 24 withdrawal of the construction permits in September, I 25 believe it was, of 2006. I assume they probably stopped INTERIM DRAFT COPY
1 somewhat before that point in time.
2 JUDGE BARATTA: : And could you briefly 3 describe the corrective action program that's referenced 4 in that letter I mentioned earlier?
5 MR. VIGLUICCI: : I am not sure I can. If I 6 can have one moment. I think, Judge Baratta, the actual 7 activities subject to QA were terminated somewhere in 8 the November 2005 timeframe and probably were not 9 resumed until approximately the March 2009 timeframe.
10 The corrective action program, if you need a 11 description, I would have to provide that separately. I 12 think it's intended to be a corrective action program as 13 envisioned by appendix B to the commission's 14 regulations.
15 JUDGE BOLLWERK: : All right. Anything 16 further at this point? Judge Sager?
17 JUDGE SAGER: : No.
18 JUDGE BOLLWERK: : You made a statement that 19 the contention is outside the scope of the proceedings 20 because the argument is being made that the good cause 21 is defined by what was put forth by TVA goes to 22 questions about, for instance, the cost per kilowatt 23 hour2.662037e-4 days <br />0.00639 hours <br />3.80291e-5 weeks <br />8.7515e-6 months <br />, installed capacity, the decrease in suppliers,129 the 24 sorts of economic considerations you mentioned before.
25 And that, of course, is on page 5 of the original August INTERIM DRAFT COPY
1 26, 2008 letter that TVA submitted to the staff 2 requesting reinstatement of the construction permits for 3 units one and two.
4 But I'm looking at page one of that letter and 5 the second paragraph, and it talks about as explained 6 below, of course, the question is what does the word 7 below mean, good cause exists to support TVA's request, 8 the Bellefonte plan was substantially complete, and 9 prior to withdrawal of the construction permits was 10 being maintained in a deferred construction status 11 consistent with NRC's definition for deferred plants --
12 for deferred nuclear plants as described in 87 -- policy 13 15 in policy statement on deferred plants.
14 Reinstatement of the permits would allow TVA 15 to, one, return the units to deferred status and resume 16 preservation and maintenance activities as proposed 17 under the deferred plan policy; two, determine, the 18 relative degree of certain difficulties and whether 19 operation of the units is a viable option. It strikes 20 me that what you have defined as the good cause factor 21 you gave on page five of that letter goes to the second 22 point, but the first point is what the intervenors are 23 really talking about, to return the units to the 130 24 deferred status.
25 Wasn't this really an underlying assumption if INTERIM DRAFT COPY
1 you had come in and requested the plant simply be 2 reinstated without indicating that it could be brought 3 into a deferred status, would staff have even considered 4 this request; if you cannot show you were ready for 5 deferred status would you have gotten your license 6 reinstated?
7 MR. VIGLUICCI: : Hard to speculate. Recall 8 the commission, of course, first directed the 9 reinstatement be authorized as a terminated plant, which 10 is short of a deferred plant in terms of the activities 11 that are permitted. How the staff would have reacted if 12 the initial request had been cast in terms of that, I 13 can't speculate at this time.
14 JUDGE BOLLWERK: : But to bring it back to a 15 terminated status would be bringing it back to where it 16 was, essentially.
17 MR. VIGLUICCI: : I think -- let me see if I 18 can phrase it this way. Clearly they're activities that 19 TVA, too, have undertaken on its without, one, the 20 preemptors of the NRC and the authority of a 21 construction permit, activities not really subject to a 22 need for a construction permit. But TVA, as we have 23 explained repeatedly, has a larger charge in mind, that 131 24 is determining whether units one and two present a 25 viable generating capacity option for their needs, and INTERIM DRAFT COPY
1 for that reason, wish to take a very hard look at the 2 facility, the material condition of the facility, the 3 viability of the facility in many respects, to see how, 4 what more needs to be done to reestablish them, and 5 whether they should be pursued.
6 It's a phased approach, starting with a more 7 modest -- the request had been for deferred plant 8 status, and if that proves out, perhaps going forward 9 with 120-day letter to resume more active construction 10 activities. What the benefit of the reinstated CP is 11 to, if you will, lend the credibility of the NRC process 12 and oversight, the requisite competence of a quality 13 assurance overlay to the activity that TVA is 14 undertaking.
15 JUDGE BOLLWERK: : But if the plant could not 16 be brought to deferred status, was it really a viable 17 option?
18 MR. VIGLUICCI: : I'm not sure I understand 19 the question.
20 JUDGE BOLLWERK: : I guess it goes back to the 21 same point which is that absent some showing, some 22 indication by TVA that this plant could be brought to 23 deferred status, was there any viability to the plant?
132 24 MR. VIGLUICCI: : The difficulty I am having 25 to answer is that really is the question TVA is asking INTERIM DRAFT COPY
1 itself. TVA sought the commission's reinstatement of 2 the construction permits to undertake these activities 3 to answer that question.
4 JUDGE BOLLWERK: : We are in a loop, but is 5 that good cause for reinstating the facility?
6 MR. VIGLUICCI: : Again --
7 JUDGE BOLLWERK: : Viability could be economic 8 but it also could be technical. If the plant has no 9 viable in technical matter, what is the good cause? And 10 I'm reading your letter; it says, one and two, that's my 11 question, one is technical, and two is economic.
12 MS. SUTTON: : With the board's permission, 13 yes, Your Honor, the paragraph you are referring to on 14 page 1, when this was -- it might not be the paragon of 15 clarity right now, but the "good cause" as explained 16 below, the good cause as set forth on page 5 as you 17 demonstrate, and those factors are the good causes 18 necessary to get to the point of reinstatement. Once 19 you get to the point of reinstatement, as this clearly 20 says in this first paragraph, reinstatement of the 21 permits then allows TVA to, item number 1, return the 22 units to deferred status and resume preservation and 23 maintenance activities. So we're viewing it in a 133 24 subwise fashion opposed to the item number 1 being one 25 of the elements of good cause.
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1 JUDGE BOLLWERK: : All right. Judge, 2 anything?
3 JUDGE BARATTA: : No.
4 JUDGE BOLLWERK: : Judge Sager?
5 JUDGE SAGER: : Nothing here.
6 JUDGE BOLLWERK: : I turn to the staff and if 7 you have anything to say about the questions I just 8 raised or that Judge Baratta raised, you're certainly 9 welcomed to do so.
10 MR. ROTH: : David Roth of the staff. The 11 role of quality assurance and reinstatement request can 12 be best learned by dealing with what the commissioner 13 wrote. She described a process that the commission told 14 the staff to go forward on which involves restoring the 15 plants to terminated status and then, subsequently, 16 based on inspection results, deciding whether the plant 17 could go forward with deferred. So it really becomes 18 academic to decide whether good cause for deferred is 19 the issue because the commission's voting record is 20 clear, and the commission is looking for a good cause, 21 proceeding relative to reinstating the permits, and in 22 this case, so deferred status is not one for good cause.
23 Second, there's really a lack of disagreements 134 24 on the contention. The petitioners state that TVA does 25 not implement quality assurance plan, the staff is aware INTERIM DRAFT COPY
1 TVA didn't do it and TVA has actually reported this 2 pursuant to 5055-e on May 14 of 2009, after they 3 reinstated the quality assurance plan, they provided, as 4 required by the regulations, their report of the quality 5 assurance breakdown along with the corrective actions 6 for that.
7 Thus, further demonstrating that this issue of 8 having the quality assurance is not part of the 9 testimony nation, it's part of the after the permits are 10 reinstated what administrations are required under those 11 permits.
12 Third, Your Honor, it inquired about the 13 quality assurance program. Since the time of the 14 reinstatement, TVA has reinstituted the corporate-wide 15 quality assurance program, but the fact they were going 16 to do this, because they had the permit, they had to 17 reinstitute the quality assurance program. Your Honors 18 specifically asked about corrective actions or what they 19 do with significant corrective actions under that 20 program. The last version is dated January 15, 2010, 21 for TVA corporate-wide quality assurance program and, 22 specifically, in section 10.2.2, you can find sections 23 regarding corrective action for adverse quality. The 135 24 petitioners, again, have not referenced these documents.
25 Perhaps there is a new filing or the previous versions INTERIM DRAFT COPY
1 to show why the corrective action programs must be 2 addressed pursuant to good cause or in the good cause 3 proceeding for the construction proceedings 4 reinstatements.
5 As far as quality assurance, it is something 6 that is appropriate for operating license review and if 7 there is a significant breakdown in quality assurance 8 alleged by the petitioners or determined by the staff, 9 perhaps the commission will issue an order itself. One 10 could petition for 2206 for such action and the staff 11 could, in fact, deny an operating license based on 12 quality assurance problems. But none of that is 13 relevant to the reinstatement permit and the good cause 14 for reinstatement, which rather than demonstrating that 15 there is an effective corrective actions program as one 16 might need for original construction permit proceeding 17 is instead reinstating the existing construction permit.
18 JUDGE BOLLWERK: : The analogy was used that 19 this is like chain of custody and once it's broken, it 20 really cannot be fixed in any significant way. Do you 21 agree with that argument?
22 MR. ROTH: : Certainly. I believe our 23 briefings have stated TVA proceeds at risk if they 136 24 cannot produce the adequate documentation to satisfy 25 the staff and then it cannot be put in service.
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1 JUDGE BOLLWERK: : Do you want to say anything 2 about that?
3 JUDGE BARATTA: : I was waiting to hear what 4 you are going to say.
5 JUDGE BOLLWERK: : Well, I think the 6 petitioner's argument was, basically, that once it's 7 broken, it's broken. You say once it is broken, it is 8 broken, but it can be fixed. I may be putting words in 9 your mouth, Mr. Dougherty.
10 MR. DOUGHERTY: : I am with you.
11 MR. ROTH: : The petitioner could be correct.
12 If it is broken, it could be irretrievably fixed, but 13 the fixing process, whether broken or not, involves 14 putting in service for the operating license, not for 15 reinstatement of the permit. That, again, the operating 16 license stage, petitioners could certainly provide 17 well-crafted intention relative to quality assurance.
18 JUDGE BOLLWERK: : We went over this before, 19 but there was a staff review process, but there was no 20 hearing notice that wants out relative to the request 21 for return to deferred status.
22 MR. ROTH: : That's correct, Your Honor.
23 JUDGE BOLLWERK: : Judge Baratta, you have137 24 anything?
25 JUDGE BARATTA: : No.
INTERIM DRAFT COPY
1 JUDGE BOLLWERK: : Judge Sager?
2 JUDGE SAGER: : A question on deferred status.
3 It sounds like what we are saying is that once a piece 4 of equipment is not under QA, it becomes prejudice, in a 5 sense it has to be proven that it's -- that it can be 6 brought back up to standard. Is there any standard 7 under the deferred status for a plant that all equipment 8 in that plant has to be, that can't contain any 9 equipment that has to be brought up to code yet?
10 MR. ROTH: : If I'm understanding Your Honor's 11 question, if the commission's policy on deferred plants 12 would somehow prohibit the utility from saying, here's 13 some equipment, this equipment is quarantined because we 14 can't demonstrate its quality assurance, that affect, 15 no, the policy contains no prohibition that would 16 somehow prevent a plant from saying we do not like this 17 equipment, we thing it's broken and we don't even --
18 pursuant to our quality assurance plan, this equipment 19 will need additional review.
20 JUDGE SAGER: : That was my question. One 21 other follow-on question. Did I understand you 22 correctly to say that all of the equipment has been 23 reviewed and has passed review? I heard you say 138 24 something that the staff had reviewed the status of the 25 terminated plant and approved it to go to deferred INTERIM DRAFT COPY
1 status.
2 MR. ROTH: : By that there is no intention to 3 say the -- the staff had in speakings that verified, to 4 the staff's satisfaction, that the quality assurance 5 program has been re-implemented; however, as we have 6 stated, nobody disagrees that the plant spent several 7 years without a quality assurance program. During that 8 time, equipment may have degraded, may have rusted, may 9 have had halogen inappropriately introduced to it, and 10 all that equipment, pursuant to TVA's corrective action 11 program, will have to be addressed or quarantined by the 12 plant. But at this juncture, for the reinstatements, 13 that doesn't go to good cause.
14 JUDGE SAGER: : Okay, thank you.
15 JUDGE BOLLWERK: : Can you provide us with any 16 information about the cap in terms of what it consists 17 of? Is it in the record in terms of the atoms?
18 MR. ROTH: : I could not give you an ML number 19 at the moment, but we can try to look that up later.
20 The latest submission. though, is dated January 15, 21 2010, and the subject line is nuclear quality assurance 22 program, TVA-NQA-PLN89-A or TVA -- and the other letter, 23 whereupon TVA announces their breakdown in the quality 139 24 assurance program, is dated My 14, 2009.
25 JUDGE BOLLWERK: : To what degree does the NRC INTERIM DRAFT COPY
1 have an ongoing inspection program to look at -- you 2 obviously went through, you did an inspection at the 3 time that the request came in, to return the plant to 4 deferred status. What do you do going forward?
5 MR. ROTH: : Going forward, I can tell you 6 what was done historically. The commission may choose 7 to do it differently in the future. Historically, at 8 Bellefonte, resident staff or regional staff from other 9 sites have gone and performed the NRC's quality 10 assurance inspection program for delayed plants. This 11 inspection, if I recall correctly, is a twice-a-year 12 inspection, though it might be just once a year. I need 13 to consult with text staff to verify that. The results 14 of the inspections are within ADAMS inspection report 15 and identified violations in the past.
16 Thus the NRC has an ongoing oversight program 17 for deferred laboratories, including Bellefonte. And I 18 can give you the specific inspection program procedure 19 for that, too.
20 JUDGE BOLLWERK: : Given the staff did an 21 inspection back in, let's see ... I can see it here, I 22 believe back in the fall, when would the next inspection 23 be, if you know? 140 24 MR. ROTH: : I do not have this information.
25 The inspection procedure entitled review of quality INTERIM DRAFT COPY
1 assurance for extended construction delay is inspection 2 procedure 92050.
3 JUDGE BOLLWERK: : Anything further, Judge 4 Baratta?
5 JUDGE BARATTA: : Not for the staff, no.
6 JUDGE BOLLWERK: : Something for TVA? This is 7 the time if you did.
8 JUDGE BARATTA: : I will wait until rebuttal.
9 JUDGE BOLLWERK: : Judge Sager, anything?
10 JUDGE SAGER: : Nothing here. Mr. Dougherty?
11 MR. DOUGHERTY: : If Judge Baratta, if you 12 have a question, I think you should raise it now.
13 JUDGE BARATTA: : Well, it sounds like what 14 you wanted was for TVA to confirm the status of the 15 equipment, and you were skeptical whether they could 16 confirm that it's satisfactory. It sounds like they are 17 going out trying to confirm whether or not the status --
18 confirm the status of the equipment and whether it is 19 satisfactory. Is it a question of the timing? Is that 20 what the issue?
21 MR. DOUGHERTY: : No, I say it's a question of 22 the forum. We believe we have a right under section 189 23 of the Act to a hearing on genuine issues that are 141 24 material to the safety of the plant. They sent a letter 25 -- actually, this letter was sent almost two years ago, INTERIM DRAFT COPY
1 a year and a half ago, and proceeded our intentions; we 2 filed a contention saying there are issues here. They 3 have claimed in the letter they have a corrective action 4 program and everything is fine; they will take care of 5 it.
6 But I think the question is, can they do that 7 informally with the staff, or do those questions get to 8 be ventilated in adjudicatory proceeding like this one?
9 And what we're saying is we have a right as the public 10 to make sure their submissions are testified in the 11 crucible of cross-examination, going through our expert, 12 and being part of the judgment.
13 So that is our point. It should be resolved 14 in this proceeding, not informally with the staff. Now 15 you asked about that paragraph on page 6, I find the 16 paragraph, kind of, ambiguous, too, but what I take from 17 it is that some of the equipment in the plant is going 18 to be entered into TVA's corrective action program.
19 When it says, "equipment" in the middle of the 20 paragraph, "equipment not subject to preventive 21 maintenance under Layia program would be entered into 22 the corrective action program." And then they add in 23 the next sentence that "systems and components that 142 may 24 have been affected in the course of cannibalization,"
25 what I call it, "would likewise be entered into TVA INTERIM DRAFT COPY
1 discretion active program."
2 So they will make judgments what components go 3 into the cap and which don't. We think those judgments 4 deserve scrutiny. I would like to get my expert's 5 opinion whether they are putting the right components 6 into the CAP or not, and we would like to test the 7 staff's opinion, the statutory safety standards have 8 been met.
9 Judge Baratta, you read all but the last 10 sentence of the second paragraph on page 1, and I found 11 the last sentence was important, I think. TVA has said 12 and this was, again, August of a year and a half ago, if 13 and when the construction permits are reinstated, then 14 TVA would, among other things, seek to establish the 15 regulatory framework and licensing basis upon which the 16 units could be completed.
17 Now, what they are saying we don't really know 18 what licensing proceeding lies ahead. This is, as I 19 said before, uncharted waters in licensing nuclear power 20 plants. They seem to be saying getting the CP 21 reinstated does not give them the status they want or 22 need to resume construction. In fact, we need to 23 establish the framework and licensing basis upon which 143 24 they can get that authorization.
25 And we are saying the same thing. We are INTERIM DRAFT COPY
1 saying we need a adjudicatory process, like what 2 happened to the system and components. Again, this is 3 the other contention in which we submitted what we 4 thought was a supplemental basis, according to the staff 5 and TVA, we didn't do so properly and there should be a 6 cover motion asking for leave, and if that is what the 7 panel desires, we will do that.
8 It is my understanding that there's an 9 unwritten, perhaps even a written rule, in the NRC 10 procedures that when a party is represented pro se, that 11 they are cut a little slack in terms of the procedural 12 niceties, and that is the category which this falls.
13 Maybe we did not understand in the cover motion, but 14 that was the intent, to submit this as something that 15 should be part of the record and, obviously, to the 16 extent the other parties oppose. And we replied to 17 their opposition. There must be a way to get this on 18 the record; we were not pulling a fast one.
19 And that concludes my rebuttal. Thank you.
20 JUDGE BOLLWERK: : Judge Baratta?
21 JUDGE BARATTA: : No.
22 JUDGE BOLLWERK: : I take it the answer that 23 staff provided by reading the portion of Commissioner 144 24 Bency (phn) statement answered the question that I posed 25 that if TVA said nothing of questioned status, the INTERIM DRAFT COPY
1 agency or the staff would have been willing to give them 2 a license. It simply got them back up to status where 3 they, the plant had been terminated.
4 MR. ROTH: : That appears to be what 5 Commissioner Bency (phn)said, yes.
6 JUDGE BOLLWERK: : Judge Sager?
7 JUDGE SAGER: : Not at this time.
8 JUDGE BOLLWERK: : Nothing further on this 9 one?
10 Okay. Let's then go to Contention 7, which is the 11 Bellefonte units one and two cannot satisfy NRC safety, 12 environmental and other requirements that have been 13 imposed or upgraded since 1974. Mr. Dougherty?
14 MR. DOUGHERTY: : We consider Contention 7 to 15 be a common sense contention that's ultimately grounded 16 in the dissenting opinion from NRC's staff, Staffer 17 Williams. He said that since the CPs were issued to 18 this facility, the regulatory requirements have changed 19 and have been upgraded, and particular he cites -- not 20 only did he cite changed standards regarding flooding, 21 but that the staff is now of the opinion, according to 22 him, and as I recall his statement is not in his 23 opinion, but, rather, in the staff's opinion, the 145 24 determinations were made, beginning in 1974 about site's 25 ability, including flooding risk, were made erroneously INTERIM DRAFT COPY
1 and that because now what purports to be -- pretends to 2 be higher water levels, the judgments need to be made 3 again. So, this is really just an attempt to embody 4 that concern in the form of a contention. That's all I 5 have.
6 JUDGE BOLLWERK: : The question I have -- the 7 deferred plant status policy anticipates plants will be 8 put in deferral and things are changed and they have to 9 address those as part of the deferral process. Does 10 that --
11 MR. DOUGHERTY: : Well, we think this is 12 different, where a plant has a permit withdrawn or 13 terminated and it sits dark and cold for some period of 14 years, that the deferral process doesn't apply. In this 15 case, evidently, it was dark and cold and outside the QA 16 process for approximately 3-1/2 years, but it could have 17 been 15 years. The TVA has offered no bright line when 18 added requirements come into place. We say when you get 19 out of the process, then, to get back in you should be 20 expected to comply with the contemporary licensing 21 requirements.
22 Now, and we would not make this contention if 23 the plant had stayed and remained in deferred status146 for 24 the entire period when it was not being built.
25 JUDGE BOLLWERK: : Having lost their -- having INTERIM DRAFT COPY
1 withdrawn it and they fell outside the parameters and 2 though they need to get back within the parameters and 3 they have to go back and comply?
4 MR. DOUGHERTY: : We say flooding. There is 5 evidence that the original determination was erroneous 6 and that is what we said needs to be reviewed, not 7 everything. Although that argument could be made, we 8 just have not made it.
9 JUDGE BOLLWERK: : All right.
10 JUDGE BARATTA: : Nothing.
11 JUDGE BOLLWERK: : Judge Sager?
12 JUDGE SAGER: : Nothing.
13 JUDGE BOLLWERK: : Then we'll turn to TVA.
14 MR. VIGLUICCI: : Proposed contention 7 is 15 inadmissible, alleging because of new data and purported 16 past errors and completely new environmental impact a 17 safety review must be conducted prior to the issuance of 18 a new reinstated construction permit at Bellefonte, and 19 this fundamental concern just voiced is fully addressed 20 by the processes I'll explain to you.
21 As a result, this proposed contention falls 22 outside the scope of this proceeding because it seeks to 23 revisit plant sighting issues related to the initial147 24 granting of the CP and to challenge TVA's ability to new 25 NRC requirements that may have arisen since issuance of INTERIM DRAFT COPY
1 those permits. I must repeat myself here that this is a 2 good cause proceeding on TVA's reinstatement request and 3 is not a vehicle for reevaluating the original 4 environmental and safety reviews of TVA's initial CP 5 application.
6 For that reason, these issues are not 7 ligitable under section 2.309 9F013. So you ask, where 8 are such issues best addressed? Through either the 2206 9 process or in a future operating license proceeding.
10 This answer goes directly to the questions again posed 11 by the board in its February 18 memorandum and in order, 12 and let me explain.
13 First, to the extent petitioners believe there 14 are health and safety issues currently warranting 15 commission action, the appropriate recourse is to 16 request a file pursuant to section 2206. Second, the 17 commission recently noted again in COI-10 of 6, should 18 TVA apply for an operating license, there will be a 19 future hearing opportunity on that application. Under 20 parts 2N50, interested persons would have the 21 opportunity to raise contentions in an NOl proceeding.
22 In this regard, with respect to safety issues, it's 23 important to recall that a CP constitutes only an 148 24 authorization to proceed with construction and does not 25 constitute the commission's approval of the safety of INTERIM DRAFT COPY
1 any design feature.
2 The NRC will not issue a license authorizing 3 operation of the facility until it has found that the 4 final design provides reasonable assurance that the 5 health and safety of the public will not be endangered 6 by its operation in accordance with future operating 7 license and NRC regulations. Thus, any issues affecting 8 or related to safe operation of the units, including any 9 potential new data regarding site geology, seismology, 10 meteorology, or hydrology as alleged to proposed 11 contention seven would be addressed before OL issuance.
12 Such issues are not recognizable in this 13 proceeding on the limited question of whether there is 14 good cause for reinstatement of the CPs. From an 15 environmental perspective, reinstatement of the CPs in 16 terminated or deferred status does not authorize any 17 work that is not already permitted by the original CPs.
18 The environmental impacts of building units one and two, 19 which already have largely occurred, were considered by 20 the NRC in its original FES for the Bellefonte unit one 21 and two CP application.
22 If TVA decides to resume the OL review 23 process, then any necessary revisions to its 149 24 environmental review documents to support eventual plant 25 operation would be made at that time. We discussed this INTERIM DRAFT COPY
1 at length this morning.
2 Finally, I turn to petitioner's claims of new 3 data and developments, including new NRC requirements.
4 These, likewise, fail to establish the existence of a 5 genuine material dispute fit for adjudication in this 6 good cause proceeding. If TVA ultimately seeks to 7 reactivate construction of Bellefonte, it would then be 8 required to address section 3a of the commission's 9 deferred plant policy statement, which specifically 10 calls for consideration of new regulatory requirements.
11 Namely, TVA would be required to address new regulations 12 to the extent applicable to units one and two or seek an 13 exemption if it decides to resume construction on one or 14 both units.
15 Section 3a6 of the deferred plant policy 16 statement calls for TVA to notify the NRC in writing at 17 least 120 days before plant construction is expected to 18 resume. Among other things, this 120-day letter that we 19 referred to here in the discussions must identify any 20 new regulatory requirements applicable that have become 21 effective since plant construction was deferred, 22 together with a description of the licensees' proposed 23 plans, or a commitment to submit such plans by a 150 24 specified date.
25 This and other information, such as security INTERIM DRAFT COPY
1 and other required plans, operating procedures, 2 technical specifications and a facilities design would 3 be evaluated during the review of the OL application.
4 At the present time, however, the issues raised by 5 petitioners in proposed contention 7 are outside the 6 scope of this proceeding and must be rejected. That 7 completes my remarks.
8 JUDGE BARATTA: : Relative to the -- let's say 9 they do -- we find there was good cause to move forward 10 and get to the point where TVA wants to permit an 11 operating license. What new information would you have 12 to provide at that point in order to amend your existing 13 operating license application so as to be consistent 14 with the flooding issues?
15 MS. SUTTON: : Yes, Your Honor. TVA is doing 16 a review of the FSAR on a line-by-line basis and if 17 there is new information that would have to be updated 18 as part of the FSAR review, they would do so. In 19 addition, as I have explained, they are doing a review 20 under the deferred plant policy statement of any new 21 regulatory requirements that would require further 22 amendment to the OL application, and, again, I would 23 expect such information may be incorporated into the151 24 FSAR.
25 JUDGE BOLLWERK: : Anything further?
INTERIM DRAFT COPY
1 JUDGE BARATTA: : Not at this time.
2 JUDGE BOLLWERK: : Judge Sager?
3 JUDGE SAGER: : No questions for me.
4 JUDGE BOLLWERK: : I think the point, if I 5 understand what joint petitioners are making is that 6 this problem is solvable by the process in the deferred 7 plant policy statement, but the deferred plant policy 8 statement didn't apply here because this wants a 9 deferred plant? It's sort of a bootstrap argument.
10 MS. SUTTON: : But the deferred plant policy 11 statement will apply if TVA decides to potentially 12 proceed with construction. They will have to file a 13 120-day letter, do the necessary analyses and move 14 forward on that front.
15 JUDGE BOLLWERK: : That's true, but this 16 wasn't -- again, back to the same point, this wasn't a 17 deferred plant, but a reinstated plant. So how can you 18 justify the policy based on this plant?
19 MS. SUTTON: : That is true, but it is 20 reinstated into deferred status, and it is fully 21 anticipated TVA will have to comply with that policy.
22 JUDGE BOLLWERK: : But this isn't a deferred 23 plant policy statement or deferred plant proceeding.152In 24 fact, there wasn't such a proceeding. The only one they 25 had to come to was the reinstatement.
INTERIM DRAFT COPY
1 MS. SUTTON: : But the results of that 2 analysis conducted as part of the deferred plant policy 3 statement, should TVA decide to move forward in an 4 operating license context, would be subject to a notice 5 of opportunity for hearing.
6 JUDGE BOLLWERK: : Say that again?
7 MS. SUTTON: : NCLA1006, the NRC has 8 indicated, and I will look for the site again, that 9 should TVA apply for an operating license, there will be 10 a future hearing opportunity on that application, and 11 they will have the opportunity to raise these sort of 12 issues as part of that proceeding. It's just not ripe 13 for review in the context of this very narrow 14 reinstatement proceeding.
15 JUDGE BARATTA: : We just heard that you 16 already have an application for operating license, 17 though.
18 MS. SUTTON: : That is correct.
19 JUDGE BARATTA: : So you will not be applying 20 for an operating license, will you?
21 MS. SUTTON: : We don't believe we need to 22 apply, but I don't know that decision has been made.
23 JUDGE BARATTA: : Therefore, that statement 153is 24 not valid.
25 MS. SUTTON: : That is a statement of the INTERIM DRAFT COPY
1 commission, Your Honor. Should TVA apply for an 2 operating license, there will be a future hearing 3 opportunity on that application. Now, as you also know 4 in the case of Watts Bar, there is a similar opportunity 5 for hearing that case. So I think that there is 6 commission presence, there will be an opportunity for 7 the public to participate in the operating license 8 proceeding.
9 JUDGE BARATTA: : There is no doubt you have 10 to come up with an amendment to incorporate the TMI, and 11 explain how you do that.
12 MS. SUTTON: : Correct. Correct.
13 JUDGE BOLLWERK: : Whether you supplement the 14 existing application or whether you file a new one, 15 there will be a hearing, or hearing opportunity.
16 MS. SUTTON: : One would expect there would be 17 a renotice.
18 JUDGE BOLLWERK: : Anything further? Judge 19 Sager?
20 JUDGE SAGER: : Nothing for me.
21 JUDGE BOLLWERK: : And now we turn to the NRC 22 staff.
23 MS. JONES: : Andrea Jones for NRC staff. I 154 24 think counsel for TVA did a pretty thorough job of 25 explaining, and explaining what I was going to explain INTERIM DRAFT COPY
1 and that is that we don't believe the contention 7 is 2 admissible. It raises issues that presumes that we 3 should go back to the official construction review stage 4 and that's just not where we are.
5 Issues related to part 100, those are issues 6 that would be required as part of 50.55 as part of TVA's 7 final safety analysis report as part of the operating 8 license application review stage, and should TVA decide 9 they want to proceed to that stage, they would be 10 required to address that information at that point in 11 time, but we don't believe this is the appropriate time 12 to have those issues raised, and it was not part of the 13 decision for reinstatement.
14 JUDGE BOLLWERK: : Do you think the agency 15 should have a reinstated plant policy?
16 MS. JONES: : I don't pretend to -- I'm not 17 going to elaborate on agency policy. I think it would 18 be inappropriate to do.
19 JUDGE BOLLWERK: : You can understand the 20 petitioner's frustration, this is not a deferred plant 21 and it was a request to reinstate, not defer it.
22 MS. JONES: : Right, it was re-instated to 23 terminate status. 155 24 JUDGE BOLLWERK: : But it was not deferred and 25 that's the policy being -- I'm being told will be the INTERIM DRAFT COPY
1 one that controls whether they have to meet the -- they 2 can go back, how, exactly, they have to address any 3 upgraded requirements.
4 MS. JONES: : Any upgraded requirements, if 5 they advise us they will resume construction and it is 6 part of the policy and I believe that it was made part 7 of the order when we initially issued the OR for 8 reinstatement they would be required to advise us of 9 what requirements would apply to their facilities and 10 how they intend to comply and, of course, we would 11 review that information at that time.
12 JUDGE BARATTA: : And that would be handled by 13 an application for amendment to license?
14 MS. JONES: : No, it would not an application 15 to the license.
16 JUDGE BARATTA: : Their operating license?
17 MS. JONES: : There currently is not an 18 operating license.
19 JUDGE BARATTA: : They have an existing 20 operating license application.
21 MS. JONES: : Yes, and we consider that to be 22 inactive. We are currently not reviewing their 23 operating license. We only looked at the request for 156 24 reinstatement, so our review was very limited.
25 JUDGE BARATTA: : What are the steps that INTERIM DRAFT COPY
1 would be required for that to become active?
2 MS. JONES: : TVA would certainly have to let 3 us know if that's what they intend to do. Then we would 4 expect they would send us a letter advising us of what 5 approach they intend to take and that would likely 6 reactivate the process. But it would be purely based on 7 what TVA advises us.
8 JUDGE BARATTA: : You have heard they feel 9 they have to amend that license to incorporate the post 10 PMI requirements that are in the legislation.
11 MS. JONES: : Certainly, they have to amend 12 the application. And we would expect that.
13 JUDGE BARATTA: : At that time, are there any 14 regulations that would require them to update the SAR or 15 their environmental report to incorporate new 16 information with regard to seismicity and flooding?
17 MS. JONES: : There is a general regulation 18 50.55d that requires them to update the FSAR as far as 19 the safety side is concerned. And there is -- as far as 20 the environmental information is concerned, there is 21 51.95b that also requires them to update information 22 related to the original final environmental statement, 23 but that's only based on new and significant 157 24 information. If there is new and significant 25 information at that time, then they would be required to INTERIM DRAFT COPY
1 update it at that point.
2 JUDGE BARATTA: : When they come in for this 3 update or amendment to their existing or inactive 4 operating license application, would the notice hearing 5 opportunity on that amendment be strictly limited to the 6 information of that amendment?
7 MS. JONES: : I cannot really say at this 8 point. My presumption would be that the license 9 application in its entirety would be put up for notice 10 for opportunity for hearing, but I can't say with 11 certainly since we're not at that point yet, but I 12 presume it to be.
13 JUDGE BARATTA: : For historical reference, 14 what was done?
15 JUDGE BOLLWERK: : And if TVA would like to 16 tell us what they did in Watts Bar? Did you amend or 17 put something new? You can probably find out the answer 18 to that.
19 MR. DOUGHERTY: : Mr. Chairman, if Attorney 20 Roth would like to address the board, we have no 21 objection.
22 MS. JONES: : Actually, I think I can address 23 that. As I understand it, in the Watts Bar case, it158 was 24 left pretty much open. Everything was fair game in that 25 case. And as far as I know, there's nothing in the INTERIM DRAFT COPY
1 provisions for notice for opportunity for hearing that 2 would limit that.
3 JUDGE BARATTA: : Thank you.
4 JUDGE BOLLWERK: : Do you know, did TVA amend 5 their application in that instance or did they submit a 6 new application?
7 MS. JONES: : Your Honor, I have been told it 8 was amended.
9 JUDGE BOLLWERK: : Judge Sager?
10 JUDGE SAGER: : Nothing here.
11 JUDGE BOLLWERK: : Anything further to add?
12 MS. JONES: : We're good.
13 JUDGE BOLLWERK: : Let's go back to 14 Mr. Dougherty then.
15 MR. DOUGHERTY: : Dougherty were. There is a 16 pattern that emerged and the TVA and staff, of six of 17 our contentions. First, for contention is admissible 18 because everything is outside the scope of the good 19 cause standard, even though the contentions deal with 20 economic feasibility of the power to be produced at the 21 plant. And secondly, every contention is filed either 22 too late or too soon. Some are too late because they 23 should have been raised back in the 1970s when the CPs 159 24 were issued, and the rest are offered too early and 25 should be addressed as part of the OL proceeding.
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1 We don't know in advance which way it will be 2 challenged. We would have guessed our contention 3 regarding the site suitability and flooding would not be 4 characterized as too late because it was addressed in 5 1974, but instead TVA contends it is here too early and 6 these things should be evaluated in the operating 7 license stage.
8 Now, as a general principle, we agree that 9 certain types of safety issues are properly deferred to 10 the OL stage. Now, the kinds of issues that strike me 11 as appropriate for that would be something like 12 emergency evacuation, if there is a problem getting away 13 people away from the plant, if there is a environmental 14 problem, say a thermal discharge, to be addressed in the 15 operating license through a power limitation that 16 strikes me as appropriate.
17 But here we have the situation where the plant 18 may be unsuitable, a site unsuitable because of the risk 19 of flooding. And if that's the case, it seems obvious 20 to us the time to address that is now. And that's what 21 NRC staff member Williams said, there is evidence that 22 the decisions were not only -- were, in fact, wrongly 23 addressed 300 years ago and there is new evidence about 160 24 there, and if some kind of response is necessary, it 25 will be either be to declare it unsuitable and abandon INTERIM DRAFT COPY
1 it or construct it in a way that it is flood proof, 2 maybe it needs flood walls. I have no idea, but it 3 seems to involve construction, not operations.
4 And if that's the case, the time for this 5 panel to consider it is now, while we are considering 6 construction permit reinstatement. That concludes our 7 rebuttal.
8 JUDGE BOLLWERK: : Judge Baratta?
9 JUDGE BARATTA: : We have heard at the 10 operating license stage that they will have to provide 11 any impact of any new and significant information, and 12 it sounds like there may very well be some new and 13 significant information with the flooding, and we have 14 also heard that according to the deferred plant policy, 15 et cetera, as you move forward, they have to identify 16 the impact of that information on their design. So 17 would not that take care of what you are concerned with?
18 In other words, if they come in and say, okay, 19 we do have new and significant flood information and 20 therefore the sites not as good as we thought it was, we 21 have to do something, doesn't that address it?
22 MR. DOUGHERTY: : Well, If that something is 23 don't build it here, then there is nothing you can do 161at 24 this stage, well, that is a decision that has to be 25 made.
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1 JUDGE BARATTA: : Operate and tear down and 2 redress.
3 MR. DOUGHERTY: : Is that the function of the 4 commissioner or this panel, is to let all the issues 5 rollover to the OL proceeding after spending $10 6 billion, to say, sorry, can't operate. I think not. I 7 think under section 189 and under part 50, I think the 8 task is to ask the questions and come up with tested 9 answers and make sure the site is suitable, the flooding 10 isn't that much of a problem. That is all I can say.
11 It makes no sense to me to just roll it over 12 for five years and then say, sorry, bad site, you can't 13 operate. And as I pointed out, the probable or at least 14 one possible response to flooding is a design feature.
15 Why raise those issues at the separating license stage 16 that might require ring. Do it now while they evaluate 17 the SSCs and while reconstruction in some material way 18 is still a possibility.
19 JUDGE BOLLWERK: : Do any -- either of the 20 staff or the applicant, want to respond? There will be 21 an opportunity to respond.
22 MS. SUTTON: : Your Honor, I would like to add 23 that part 50 process here is a two-step licensing 162 24 process and to the extent the petitioners don't agree 25 with that process, which is obvious, you don't like the INTERIM DRAFT COPY
1 process, perhaps the route is a petition for rulemaking 2 to change the rules.
3 JUDGE BOLLWERK: : Anything from the staff?
4 MS. JONES: : I think enough said.
5 MR. DOUGHERTY: : With all due respect, we 6 have not criticized the process, we love the process.
7 Our point is under two steps, construction issues are 8 raised in step one and operating issues raised in step 9 two, and you consider the issues we raise to be 10 construction issues and that's our point, not that the 11 process is flawed.
12 JUDGE BOLLWERK: : A reason they came up with 13 part 52 is because a lot of people were not happy with 14 the process.
15 MR. DOUGHERTY: : But that is not a reality.
16 JUDGE BOLLWERK: : Anything further? Judge 17 Baratta? Judge Sager?
18 JUDGE SAGER: : Nothing.
19 JUDGE BOLLWERK: : And now contention 8, 20 Bellefonte units one and two do not meet operating life 21 requirements.
22 MR. DOUGHERTY: : Section 50.49e5 says 23 equipment installed has to be tested in a fashion that 163 24 assures it will remain operational until the end of 25 useful life, and I will read from 50.49e5, agent:
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1 equipment qualified by test must be reexamined by 2 natural or artificial accelerated aging to the installed 3 life condition. Now, when the tests were run and 4 satisfied at the time when the CPs were issued in 1974, 5 they were assuming this plant had a certain useful life, 6 and, frankly, I should know what it is, but I don't. It 7 was either 30 or 40 years. So they had to make sure 8 everything would hold up for 40 years. That was 36 9 years ago -- 36 years ago and now we have a series of 10 licensing proceedings.
11 I have been told they are looking at turning 12 the plant goes on, loading fuel and resuming commencing 13 operation in about 10 years. That will be 46 years from 14 official CP issuance, and if they operate for another 15 40, we are talking 96 years. So, we believe a 16 consequence of TVA brought on itself by delaying this 17 construction process so long and now trying to resume, 18 they cannot show the SSCs will operate effectively over 19 that period of time. So we are saying the burden should 20 be on TVA to prove that the equipment will operate as 21 required by 50.4095 to the end of its installed life.
22 That conclusions my opening remarks.
23 JUDGE BARATTA: : Nothing. 164 24 JUDGE SAGER: : Nothing here.
25 JUDGE BOLLWERK: : TVA.
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1 MS. SUTTON: : In proposed contention 8, 2 petitioners repeat that TVA must conduct a new safety 3 analysis prior to the issuance or reinstate of 4 construction Bellefonte units one and two, but here 5 alleges that TVA has not provided critical research and 6 information on its aging equipment, or aging management 7 plan to deal with reliability and safety issues of 8 advanced age and end of installed life.
9 In support as you heard petitioners site 10 10 CFR 5049 concerning viable qualification of safety 11 electrical equipment and further evidences pier failure 12 to abide by the clear terms of March 2009 order, the 13 subject of this proposed contention, the purported 14 advanced age and end of installed life SSCs has no next 15 us to TVA's good cause justification for reinstatement 16 of the CPs, and accordingly, yet again mutt be rejected 17 as falling outside of scope of this proceeding pursuant 18 to 10 CFR f13.
19 In addition, the concern raised by petitioners 20 is unquestionably a post construction safety issue, not 21 subject to NRC review and findings in this CP 22 reinstatement proceeding. As the safety evaluation 23 makes clear, the NRC staff will review the detailed 165 24 design information and resolution of any safety issues 25 during the OL application review process, and if and INTERIM DRAFT COPY
1 when TVA moves forward with an operating license 2 application.
3 Proposed contention 8 fails to raise material 4 issue or establish a genuine dispute contrary to section 5 2.309f16. This is another issue which may be more 6 appropriate for consideration in a part 50 operating 7 license proceeding, again, assuming that any such future 8 proposed contention fully meets the admissibility 9 requirements of section 2.309. Issues concerning the 10 age or as found conditions of SSCs at units one and two 11 will not litigable would to the extent necessary and 12 appropriate be evaluated by TVA and NRC through 13 applicable regulatory and licensing processes upon any 14 reactivation of construction.
15 For example, TVA's nuclear quality assurance 16 program or the NQAP, which we talked about earlier, 17 addressed equipment age. The NQAP makes clear TVA 18 controls prohibit deferred equipment, including aged, 19 degraded or outdated or obsolete equipment from being 20 used in nuclear safety related applications without 21 further evaluation and having been fully restored or 22 replaced.
23 Again, the adequacy of the NQAP is not 166 24 recognizable here. It could be the subject of either a 25 2206 petition or possibly an issue in the future OL INTERIM DRAFT COPY
1 proceeding. In addition, section 3a7 of the deferred 2 plant policy statement describes the principle criteria 3 or bases upon which the NRC staff evaluates 4 acceptability of equipment upon reactivation of a plant 5 from deferred status. These include, for example, 6 reviews of the approved reservation and maintenance 7 programs as implemented to determine whether any SSCs 8 require special NRC attention during reactivation.
9 Finally, in accordance with 10 CFR part 50 10 and/or licensing basis commitments in the preliminary or 11 final safety analysis report, the PSAR or the FSAR, TVA 12 would need to comply with the design requirements 13 specified in NRC approved industry codes and standards, 14 including those governing environmental qualification of 15 electrical equipment important to safety. As noted in 16 SECKY 08004 is, which includes TVA's submittal of plans 17 for restoration of plans and equipment affected by the 18 suspense of preservation and maintenance activities.
19 As a result, if TVA decides to move forward in 20 an OL proceeding, as build condition of the plants would 21 be subject to NRC inspection regarding licensing 22 requirement. The foregoing considerations underscore 23 petitioner's failure to raise a genuine dispute on issue 167 24 of material law or fact in the context of this current 25 reinstatement proceeding. Issues related to the aiming INTERIM DRAFT COPY
1 of previously installed plant equipment are not material 2 to the NRC's finding of good cause for reinstatement.
3 Moreover, such issues would be the subject of future NRC 4 technical reviews that are contingent upon TVA's unmade 5 decision to reactivate construction and seek NRC 6 operating licenses for both units one and two.
7 As such, they also would be more appropriate 8 for consideration either through the 2206 or through the 9 part 50 OL proceeding. For all of the reasons, this 10 proposed contention should be rejected.
11 JUDGE BARATTA: : In question.
12 JUDGE BOLLWERK: : Judge Baratta?
13 JUDGE BARATTA: : Nothing.
14 JUDGE BOLLWERK: : Judge Sager?
15 JUDGE SAGER: : Nothing here.
16 JUDGE BOLLWERK: : The response here is the 17 same as before. This is just not the right time.
18 MS. SUTTON: : That is correct, for all of the 19 reasons stated.
20 JUDGE BOLLWERK: : And now to the staff.
21 MS. JONES: : Our response is the same as 22 before. We don't think, and with a couple of 23 deviations, 50.495 applies more to operators and applies 168 24 to applicants for operating licenses, but we would also 25 add that, and I think my colleagues mentioned this INTERIM DRAFT COPY
1 earlier, that any equipment that's determined to be 2 unsatisfactory or is expired would be placed into a cap, 3 and any issues regarding aging, in the context in which 4 petitioners are bringing it up, that is something that 5 we would look at as part of our review of their final 6 design which would be submitted in the final safety 7 analysis report.
8 So we consider any issues regarding the faulty 9 equipment to be part of our technical review at this 10 point in time if TVA decides to pursue an operating 11 license application.
12 JUDGE BOLLWERK: : Is part of the plant 13 design, maybe I should -- Judge Baratta asked this type 14 of question, does the design of the facility provide a 15 list of the age of all the equipment? Do you know how 16 old it all is?
17 MS. JONES: : I don't have that information.
18 JUDGE BOLLWERK: : There is the possibility 19 you may not know how old some of it is?
20 MS. JONES: : We would expect for them to, 21 once they have investigated, whether or not they do, 22 whether or not this is equipment that is faulty or 23 expired we would expect for them to advise us of that, 169 24 and we would pursue our normal process of in expecting 25 and reviewing information submitted to us at the INTERIM DRAFT COPY
1 operating license application stage.
2 JUDGE BOLLWERK: : Does a plant like there put 3 you on a heightened concern about the age of equipment?
4 MS. JONES: : I can't necessarily speak to 5 that. It would be too much of an opinion and I don't 6 want to speak for the staff.
7 JUDGE BOLLWERK: : TVA want to say anything 8 about how you deal with something like this where you 9 have equipment, some of it 40 years or more?
10 MS. SUTTON: : We have records regarding 11 equipment age and furthermore as part of the processes 12 being discussed here TVA would have to requalify, 13 replace any sort of equipment to ensure that it ensures 14 its intended design function.
15 JUDGE BOLLWERK: : That's on an item by item 16 basis, I take it?
17 MS. SUTTON: : That's correct, Your Honor.
18 JUDGE BOLLWERK: : That includes all the 19 piping, whole components?
20 MS. SUTTON: : Yes, Your Honor.
21 JUDGE BOLLWERK: : All right. Cabling?
22 MS. SUTTON: : Yes, Your Honor.
23 JUDGE BOLLWERK: : Anything further? Judge 170 24 Sager? Judge Baratta?
25 JUDGE SAGER: : No.
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1 JUDGE BOLLWERK: : Let me turn, then, to the 2 petitioners, then. Mr. Dougherty.
3 MR. DOUGHERTY: : We believe there is a whole 4 constellation of issues best raised and adjudicated in 5 the context of operating license proceeding and I 6 mentioned some of those like emergency evacuation, power 7 levels, staffing plans, and we are not attempting to 8 raise such issues at this stage. But there are other 9 issues which are inherently raised during the 10 consideration of the construction of the plant.
11 Concrete cracks. This site is in a flood zone, a lot of 12 different information on flooding on the site. The 13 rebar is rusting. Now, at some point TVA had to 14 demonstrate the rebar would meet spec for a 40-year 15 period. But that 40-year period expires in four years.
16 Can it meet spec for a 96-year period? That's the 17 question.
18 And we think it is inappropriate to defer 19 resolution of those questions until the operating 20 license. If the rebar isn't going to make it, let's not 21 invite them to spend billions more adding new equipment, 22 to, then, tell them that they cannot operate the plant.
23 If the rebar needs to be repaired or replaced, now is 171 24 the time to do it, not the operating license stage.
25 So, we would say with respect to the issues INTERIM DRAFT COPY
1 that we've raised, it is the CP stage that is 2 appropriate, not the OL stage. Thank you.
3 JUDGE BOLLWERK: : Anything?
4 JUDGE BARATTA: : No.
5 JUDGE BOLLWERK: : Judge Sager?
6 JUDGE SAGER: : Nothing.
7 JUDGE BOLLWERK: : And now the final 8 contention, number 9, impacts on aquatic sources, 9 including fish and mussels of the Tennessee River.
10 MR. DOUGHERTY: : Thank you, Your Honor. Over 11 time, environmental conditions change over time, and 12 since the construction permits were issued in 1974 13 environmental conditions have changed. I'm sure 14 population patterns around the plant have changed. One 15 can make a lot of arguments about new analyses that need 16 to be conducted in order to account for a changed 17 circumstance around the plant. We are not making those 18 contentions.
19 The conditions we're advancing here is that 20 scientific evidence collected by our expert witness, 21 Shawn Young, shows that since the initial ecological 22 reviews in the Tennessee River were conducted 40 years 23 ago, ecological conditions have changed substantially.
172 24 The populations of many of the indigenous species have 25 shown dramatic declines. This may be due partly because INTERIM DRAFT COPY
1 of climate changes, but things are changed. There are a 2 flub -- numbers operations who affect the water flow and 3 this has to do with how the plant is operated in terms 4 of the use of water.
5 So, with Dr. Young's declaration and the 6 authorities he cites there, we would like to make TVA 7 demonstrate that this site is compatible and will not 8 lead to undue harm to the aquatic ecosystems in the 9 river. And we trust that Mr. Young's input into this 10 proceeding will educate the panel this is a way we can 11 make a finding on this contention. That concludes my 12 presentation. Thank you.
13 JUDGE BOLLWERK: : All right.
14 JUDGE BARATTA: : Nothing.
15 JUDGE BOLLWERK: : Judge Sager?
16 JUDGE SAGER: : Nothing here.
17 JUDGE BOLLWERK: : I spent a week with Dr.
18 Young in March of last year with Dr. Young and I know he 19 has a lot to say about matters of aquatics.
20 MR. DOUGHERTY: : Most of it, I don't 21 understand.
22 JUDGE BOLLWERK: : Hopefully, we issued an 23 opinion that dealt with it. Now to TVA. 173 24 MR. VIGLUICCI: : Thank you, Mr. Chairman.
25 I'm not sure I fully understand Mr. Dougherty's argument INTERIM DRAFT COPY
1 suggesting that he is not urging here that there have 2 been any changes that need to be considered now, but his 3 expert says there are changes that need to be considered 4 now. In fact, contrary to what was suggested earlier, 5 we have suggested that in a way these contentions are 6 too late, and we're contending, at the same time, they 7 are, perhaps, too early.
8 There was extensive consideration of the 9 environmental impacts of the proposed construction of 10 Bellefonte units one and two some years ago. This is 11 simply not the occasion in the context of a construction 12 permit reinstatement proceed sueding to revisit those.
13 As noted earlier, an occasion to deal with these issues 14 will present itself in the event TVA goes forward with 15 the operating license application in that context should 16 an admissible contention be proposed at that time.
17 Proposed contention 9 essentially consists of 18 five subparts. The first, at least nominally, suggests 19 that it has to do with the reinstatement of the 20 construction permits and resumption of construction, but 21 notably as an operation of units one and two on aquatic 22 resources. It suggests no data was provided in support 23 of the rationale for a finding of no significant impact.
174 24 Petitioner notes, though, that the majority of 25 construction activities have already occurred and the INTERIM DRAFT COPY
1 impacts have been assessed and documented in the 2 original FES. Excuse me, that statement was made by the 3 staff and it's environmentalist has been upped by 4 petitioners. And that statement can be referred in 74 5 Fed reg at 9307 and 9309 which was published on March 6 3rd.
7 Proposed contention b goes on to the subject 8 that the analysis four units he and four -- for units 9 he, and four does not adequately address potential 10 impacts operating two or four additional nuclear reactor 11 units on fish and mussels in the Tennessee River, and 9c 12 suggests the analysis does not adequately address the 13 impacts to increase water intake and increased thermal 14 discharge on fish and mussels in the vicinity of the 15 Bellefonte units. And 9d addressed thermal and check 16 discharges, and 9e suggests that TVA has used a biased 17 rating system to justify certain of its analyses, and 18 has pointed out the declaration of Shawn Young is relied 19 on in support of the contentions.
20 But much like the other proposed contention 21 nine, again, lacks adequate support and fails to raise a 22 genuine issue regarding any finding that must be made in 23 the context of this proceeding, this construction permit 175 24 proceeding. Despite the words that they seek to 25 question the adequacy of the environmental assessment INTERIM DRAFT COPY
1 regarding the resumption of construction, I think it can 2 be said of the petition and the declaration they ignored 3 the NRC early environmental statement and addressed only 4 purported impacts associated with the operation of the 5 facility and in particular, the cumulative impacts of 6 operating four units.
7 The impacts have been resulted from operation 8 of Bellefonte units one and two are clearly beyond the 9 scope of this narrowly focused proceeding. Moreover, 10 like an earlier contention, this one seeks to raise 11 essentially the same issue as the board admitted, in the 12 ongoing Bellefonte units three and four proceeding and 13 there I referred to contention 8, which I believe is 14 NEPA, consideration of impacts of future operation is a 15 potentially admissible issue in the contexts of combined 16 license proceeding and a COLA proceeding related to 17 Bellefonte units three and foyer but not in the context 18 of a construction permit such as we are here concerned 19 about, and for that reason, should be rejected.
20 Again, finally, and to respond to the board's 21 question, to the extent an admissible contention could 22 be proffered, it would be in the context of the issuance 23 of operating licenses should TVA pursue that course 176 in 24 the end. Thank you.
25 JUDGE BOLLWERK: : Any questions? Judge INTERIM DRAFT COPY
1 Baratta, any questions?
2 JUDGE BARATTA: : No.
3 JUDGE BOLLWERK: : Judge Sager?
4 JUDGE SAGER: : No questions.
5 JUDGE BOLLWERK: : I heard the same responses, 6 which is this is an OL issue.
7 MR. VIGLUICCI: : That's correct.
8 JUDGE BOLLWERK: : And now let's turn to the 9 staff.
10 MS. JONES: : Judge, for the sake of not being 11 repetitious, I will just make two points but I suspect I 12 will be repetitious. That is, following what he just 13 said, these are issues that are more appropriately 14 raised at operating license application review stage, or 15 TVA determines it wants to proceed in that direction.
16 And the other point I want to make is that the issues 17 raised in contention 9 were based on the environmental 18 reports for units three and four, and so petitioners 19 hadn't really conveyed a real case for why and how that 20 information would contradict the information we used 21 here for the request for reinstatement.
22 The request for reinstatement is limited to 23 completion of construction for units one and two and177 24 does not encompass operational issues which is exactly 25 what contention 9 seems to be concerned with.
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1 JUDGE BOLLWERK: : Anything further?
2 MS. JONES: : No.
3 JUDGE BARATTA: : No.
4 JUDGE SAGER: : Nothing here.
5 JUDGE BOLLWERK: : Let me go back to 6 Mr. Dougherty.
7 MR. DOUGHERTY: : Your Honor, I am not 8 familiar to deal with this, but it is my understanding 9 that the issues we are presenting in the contention were 10 issued that were resolved at the CP stage when the CPs 11 were issued 35 years ago. If that is the case, we are 12 saying that this one, in particular, deserves to be 13 revisited because of the new information and the change 14 in environmental circumstances. But I'm also going to 15 say that if this is the first time these issues have 16 ever been raised or considered by the staff, they should 17 be addressed in the OL.
18 JUDGE BOLLWERK: : Thank you.
19 JUDGE BARATTA: : Nothing.
20 JUDGE SAGER: : Nothing here.
21 JUDGE BOLLWERK: : That, then, we have been 22 through the seven contentions and well as the question 23 of good cause, generally, which concludes what the board 178 24 had an interest in terms of hearing an argument from the 25 parties. In terms of the argument, we would like to INTERIM DRAFT COPY
1 express the board's appreciation to all of you.
2 Mr. Dougherty, you said you have not done this in a 3 while, but you sound like you have been up to speed as 4 far as I could tell. So we appreciate your efforts for 5 coming in on the crunches, a small physical problem, but 6 we do appreciate you coming and the other counsel 7 regarding providing us with arguments.
8 And now a couple of things for you all to 9 think about. This case obviously is up in the board's 10 hands. Given the arguments we have heard, we have to 11 make a decision about standing issues and the 12 admissibility of contentions. That we will do this due 13 course. We have a general provision in the rules that 14 says 45 days from the time the petitioner's refile is 15 filed and we make our decision or tell the commission 16 what the issue -- what the problem is, and we will do 17 one or the other. So, in terms of, however, for you all 18 going forward, some things to think about and, again, 19 this is assuming the contention is admitted and the 20 board has not made decisions about what contentions may 21 or may not come in, think about in setting a section 22 2.332b schedule. The board at this point would be 23 operating under the presumption that a merits 179 24 determination regarding admitted issues need not make 25 issue of satisfy, staff or environment review unlike the INTERIM DRAFT COPY
1 licensing cases where we awaiting Bellefonte, the COL, 2 or Vogtle, we are waiting staff review documents to move 3 forward on the merits of the contentions, these 4 contentions and these that were admitted, basically, we 5 would be good to go, I think, moving forward in terms of 6 the merits.
7 As such, relative to any discussion that might 8 occur regarding official schedule for the proceeding, we 9 ask you consider carefully the length of time you 10 require for discovery authorized under the agency rules 11 of practice and, whether summary disposition is 12 appropriate relative to admitted contention and how much 13 time is needed to prepare for and conducts an 14 evidentiary hearing regarding the contention. We are 15 some a different situation if the contention is 16 admitted, we are in some of the other licensing cases 17 where we waiting for something to happen. I don't think 18 we are waiting for anything further to happen. This 19 case could move forward with the merits relatively 20 promptly, to whatever discovery provisions would apply.
21 Also, assuming the contention is admitted, the 22 parties should be aware that discovery provisions under 23 section 2.33 including the need for the staff to provide 180 24 a hearing file would be activated regardless of whether 25 there is a board order or party discovery assuming INTERIM DRAFT COPY
1 contention is admitted. And the party may wish to 2 discuss whether they want to prepare on discovery, and 3 produce privileged laws or waive such laws as for 4 instance was done in the bell fonts combine licensed 5 proceeding.
6 Finally, with respect to the procedures 7 potentially going forward given the proceeding, the 8 board will assume we will not receive requests for 9 protective orders but if that is not the case, you will 10 need to discuss that and let us know.
11 Those are just some heads up assuming we were 12 to move forward and admit a contention, and I am not 13 saying that will or won't happen, but something for you 14 to think about as we go forward. At this point, let me 15 see if anything any of the parties want to bring to the 16 board's attention relative to what you have already or 17 any questions on what I have just said.
18 MR. DOUGHERTY: : For two minutes. What is 19 notable about there case is both the dissenting opinion 20 of Mr. Williams on the staff and the repeated and very 21 strong dissents articulated by Chairman Jaczko and I 22 would like you to pay attention to these people who know 23 what they are talking about making valid, and there 181 is 24 list in some agencies to brush claims of whistleblowers 25 under the rug and it is income went to read this INTERIM DRAFT COPY
1 carefully. What Williams called for was a robust 2 process having been on the inside, being familiar with 3 the facts, he's seen issues that in his view, need to be 4 eliminated and the only way to do that is in 5 adjudicatory proceeding like this, not the kind of thing 6 where we say, the staff will work it out with TVA.
7 We believe, of course, we have a right under 8 the act to ajudicatory proceeding on that. The other 9 thing that strikes us in many ways we are in the same 10 position in this proceeding as we are in the units he 11 and four COL proceeding, is that we don't though what 12 TVA wants to do. And in many respects, what they want 13 to do is going to bear on the contentions. For example, 14 if they are thermal discharges, it matters whether they 15 will resume construction on one or two, or zero or 16 builds a new one.
17 So, in many ways the facts they have not 18 announced what they plan to do complicates our job 19 immeasurably, and I guess it is unusual for any board to 20 consider a proposal, it agencies will, because we don't 21 have numbers associated with it and we tonight know if 22 the company wants to do it so I suggest a way of 23 proceeding might be to answer the most important hardest 182 24 question in front of us right new which is, what is a 25 good cause standard and what, really, is TVA's burden of INTERIM DRAFT COPY
1 going forward with the staff and our burden as party --
2 as petitioners, and if we can get an answer the proper 3 resolution of the other factual and environmental 4 contentions will be sharpened considerably.
5 JUDGE BOLLWERK: : Thank you, sir. Anything 6 that TVA or the staff wants to say in response to that?
7 MR. VIGLUICCI: : We think the standard for 8 good cause is aptly defined in the commission's 9 precedent as well as in commission policy statements and 10 we do not see any need for further discussion on those 11 issues. We do have a question with respect to whether 12 the board this morning, excuse me, this afternoon, 13 intends to hear anything further with respect to 14 standing or with respect to the procedures to be 15 followed in this proceeding.
16 JUDGE BOLLWERK: : I don't think those are 17 issues were necessarily raised. I think we're fine with 18 those. We don't need to have anything further on those.
19 And now to the staff, anything the staff wants to say?
20 MS. JONES: : We have nothing further.
21 MR. DOUGHERTY: : Nothing further.
22 JUDGE BOLLWERK: : At this point, let me -- a 23 couple of other administration matters, and, again, 183 24 anyone that happened to continue to be watching the 25 proceeding over the webstreaming, if you have any INTERIM DRAFT COPY
1 comments on the webstream, how it worked for you, how 2 you see any problems, issues, again, the e-mail address 3 would be webstreammaster.resource.NRC and how the 4 proceeding came across in terms of ability to watch this 5 notwithstanding the fact we were to have access to the 6 proceeding notwithstanding we were in Rockville, rather 7 than being in the Alabama area. So, we appreciate 8 hearing from you one way or the other if you have, if 9 you have any comment.
10 The SLAP staff, Andy Wilkie, Matt Cuthcin and 11 Government Solutions, the contracting staff, we 12 appreciate putting together the video conferencing and 13 web streaming, and our I.T. specialist Joe Deucher and 14 the web streaming folks we are dependent on. And 15 everything went smoothly as far as I could tell, so I 16 appreciate their efforts, and law clerk and SherVerne 17 Cloyd and the administrative staff important in setting 18 this process up and getting it forward, and Lorraine 19 Carter and our real time reporter, and our person here, 20 this person. It is never an easy thing to keep up with 21 the rapid conversation that goes on between the lawyers 22 and we do appreciate the realtime efforts you made in 23 terms of the real time court reporting for the 184 24 webstreaming feed we have, which is very important for a 25 lot of people to access it and understand what is going INTERIM DRAFT COPY
1 on.
2 Finally, I make mention of something that I 3 guess was clear to the applicant when they came in but 4 may not have been clear to some of the others, over the 5 weekend, when I came in at 1:00 on Saturday, we had a 6 flood in the hall right over here and, in fact, we had a 7 water down table that sprung a leak and caused a cascade 8 of water down the stairway, fortunately, and also, not 9 necessarily into this room but into the hall and into 10 the applicant's conference room and the NRC staff and 11 contractor staff dried it out and got it up and 12 operating this morning so we were able to use the room 13 as well as conduct this proceeding, and I was concerned 14 to find the water all over the place but it worked out 15 that they did a terrific job getting us up and operating 16 this morning. So, I do appreciate that. Thank you to 17 them for staying on top of that.
18 At this point, Judge Baratta, anything you 19 want to say?
20 JUDGE BARATTA: : No.
21 JUDGE SAGER: : Nothing here.
22 JUDGE BOLLWERK: : We appreciate the efforts 23 of counsel. I found the arguments very illuminating, 185 24 and you clearly spent a lot of time putting these 25 together and, again, Mr. Dougherty, you are getting up INTERIM DRAFT COPY
1 to speed. What proceeding were you in years ago?
2 MR. DOUGHERTY: : In 1979.
3 JUDGE BOLLWERK: : Not around as long as 4 Mr. Chandler has been around. We appreciate your 5 efforts and of all counsel today, and we are taking them 6 under consideration and we issue a decision hopefully 7 within the next about 30 days or thereabouts. Thank you 8 very much.
9 We stand adjourned.
10 Whereupon, the proceedings were concluded) 11 12 13 14 15 16 17 18 19 20 21 22 23 186 24 25 INTERIM DRAFT COPY