ML101590109
| ML101590109 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 05/26/2010 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 50-275-LR, 50-323-LR, ASLBP 10-890-01-LR-BD01, NRC-258, QQ-25 | |
| Download: ML101590109 (372) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION DOCKETED
Title:
Diablo Canyon Nuclear Plant USNRC Oral Arguments June 4, 2010 (10:40a.m.)
OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF Docket Number: 50-275-LR and 50-323-LR ASLBP Number: 10-890-01 -LR-BD01 Location: San Luis Obispo, California Date: Wednesday, May 26, 2010 Work Order No.: NRC-258 Pages. 1-370 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433 3
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1,
I
- 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3
4 ATOMIC SAFETY AND LICENSING BOARD 5
6 In the Matter of Docket Nos.
7 50-275-LR and 8 PACIFIC GAS & ELECTRIC COMPANY 50-323-LR 9 (Diablo Canyon Nuclear Power ASLBP No.
10 Plant, Units 1 and 2) 10-890-01-LR-BD01 11 I 12 13 County Government Center 14 .San Luis Obispo County Board Chambers 15 1055 Monterey Street 16 San Luis Obispo, California 17 18 Wednesday, May 26, 2010 19 8:30 a.m.
20 21 BEFORE ADMINISTRATIVE JUDGES:
22 ALEX S. KARLIN, CHAIRMAN 23 NICHOLAS G. TRIKOUROS 24 DR. PAUL B. ABRAMSON NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2 1 APPEARANCES:
2 For the Nuclear Regulatory Commission Staff:
3 SUSAN UTTAL, ESQ.
4 MAXWELL SMITH, ESQ.
5 LLOYD SUBIN, ESQ.
6 CATHERINE KANATAS, ESQ.
7 Office of the General Counsel 8 Mail Stop: O-15D21 9 Washington, DC 20555-0001 10 (301) 415-1246 11 12 For Applicant Pacific Gas & Electric Company:
13 DAVID A. REPKA, ESQ.
14 Winston & Strawn, LLP 15 .1700 K Street, NW 16 Washington, DC 20006-3817 17 (202) 282-5100 18 19 TYSON R. SMITH, ESQ.
20 Winston & Strawn, LLP 21 101 California Street 22 San Francisco, California 94111-5894 23 (415) 591-1000 24 25 JENNIFER POST, ESQ.
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3 1 For Petitioner San Luis Obispo Mothers for Peace:
2 DIANE CURRAN, ESQ.
3 Harmon, Curran, Spielberg & Eisenberg, LLP 4 1726 M Street NW, Suite 600 5 Washington, DC 20036-4523 6 (201) 328-3500 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4 1 P-R-O-C-E-E-D-I-N-G-S 2 (8:30 a.m.)
3 JUDGE KARLIN: Good morning. I'd like to 4 call this meeting of the Atomic Safety and Licensing 5 Board to order and go on the record with the reporter.
6 I'd like to welcome the parties and the members of the 7 public. We are here to conduct an oral argument in 8 the matter of Pacific Gas & Electric Company, an 9 application for & license renewal for its Diablo 10 Canyon nuclear reactors.
11 This is a challenge to PG&E's application 12 by the San Luis Obispo Mothers for Peace.
13 The docket number in this case, for the 14 record, is 50-275-LR and 50-325-LR. Those -- LR" 15 means license renewal. And there are two reactors, so 16 there are two numbers. The ASLBP number is10-890 17 LR-BD01.
18 And this oral argument is being conducted 19 today pursuant to an order that we issued -- this 20 Board issued on May 5th. Today's date, for the 21 record, is May 26, 2010 and the location of our 22 proceeding here today for the record is the San Luis 23 Obispo County Board of Supervisors Chambers Room in 24 the City of San Luis Obispo, California.
25 First, I'd like to introduce the members NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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5 1 of this Board To my left is Nicholas Trikouros. He 2 has a B.S. and M.S. in engineering, a Ph.D. equivalent 3 at Polytech University. Judge Trikouros has over 30 4 years of experience in the nuclear industry. He's 5 held senior positions with DNP Nuclear Corporation and 6 his areas of expertise include nuclear plant design, 7 basis and licensing, reactor systems, emergency 8 *operating procedures, and accident analysis, and 9 probabilistic risk assessment. He was one of the 10 early responders to the Three Mile Island Unit 2 11 accident and provided on-site technical support and 12 consultation in responding and controlling that 13 incident. He's also served as an adjunct professor at 14 Rutgers and he is one of our -- the Atomic Safety and 15 Licensing Board technical or scientific judges.
16 To my right is Dr. Paul Abramson. He has 17 a Ph.D. in physics and a J.D. in law, juris doctorate 18 in law, so he's a double-hitter, as it were. He 19 served with the ASLBP's Special Associate Chief Judge, 20 legal and technical, for five years, and now he is 21 working -- his experience includes the head of the 22 LWR.
23 JUDGE ABRAMSON: Light Water Reactor --
24 there we go -- system safety analysis in Argonne 25 National Labs. Later, he was a partner at several NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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6 1 major law firms specializing in power project 2 development and construction and finance.
3 My name is Alex Karlin. I'm a lawyer with 4 about 30 years of experience in law and about six 5 years additional experience as being one of the judges 6 on this Board, and I will serve as the chairman of 7 this particular Board.
8 I'd also like to introduce the members of 9 our staff who are helping. us out here today. To my 10 right is Ms. Wen Bu. She is a lawyer and is the law 11 clerk who helps us with legal issues in this matter.
12 She's the law clerk to the Board.
13 Ms. Ashley Prange over there with her hand 14 up is our administrative assistant and so she's 15 helping out with many of the logistical matters here 16 today.
17 Mr. Victor Drix is the Office of Public 18 Affairs from the NRC and for media, if any media 19 people are here, they might want to talk with him or 20 he can try to answer some of your questions.
21 And Mr. Michael Rodriguez is our security 22 officer and I'm not sure whether he's here today or --
23 here at the moment or not -- okay. He's outside.
24 The second order of business is we'd like 25 to thank -- I'd like to thank the San Luis Obispo NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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7 1 County Board of Supervisors for making this excellent 2 facility available to us. It is our policy, it's our 3 -- we try to hold these arguments and these oral 4 arguments in the vicinity of the facility that's being 5 applied for, the license is being applied for. One of 6 the interesting aspects of this case is that all of 7 the lawyers in this case, both the lawyer for San Luis 8 Obispo, the lawyer for PG&E, and the lawyer for the 9 NRC Staff are all located in Washington, DC. And we 10 have a hearing room not much different from this which 11 is 20 feet from my office but, rather than having the 12 hearing there, for the convenience of the lawyers and 13 the judges we're having it here because this is the 14 community that's being -- will be affected and we 15 thought that this is where we need to have this. So 16 we thank Frank Mecham, who's the Chairman of the San 17 Luis Obispo Board of Supervisors and his staff for 18 making this facility available to us. In particular, 19 Ms. Joyce Neal and Ms. Vicky Shelby have been very 20 helpful in working with Ashley Prange and myself and 21 all of us in setting this up.
22 We welcome the public interest in this 23 proceeding and we're glad to see a number of people 24 here today. Also, through the help of the Board of 25 Supervisors, we are having this proceeding webcast.
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8 1 We have our own webcasting facilities in Washington, 2 but these are excellent webcasting operations here, so 3 happily we're able to do that for the -- with the 4 community, too.
5 At this point, I'd ask the parties to 6 identify themselves and introduce themselves and any 7 of their clients who may be with them. We'll start 8 with Ms. Curran, San Luis Obispo Mothers for Peace.
9 Ms. Curran.
10 MS. CURRAN: Do I stand up?
11 JUDGE KARLIN: Yes, please. . I think that 12 would be good.
13 MS. CURRAN: Good morning. I'm Diane 14 Curran. I represent San Luis Obispo Mothers for Peace 15 and with me today are several members of the board of 16 directors -- Jill Zamek, Elizabeth Aptelberg, June 17 Cochran, and Jane Swanson.
18 JUDGE KARLIN: All right. Thank you.
19 Welcome. Pacific Gas & Electric, Mr. Repka?
20 MR. REPKA: Yes. Good morning.
21 JUDGE KARLIN: Good morning.
22 MR. REPKA: David Repka for Pacific Gas &
23 Electric Company and with me today are my colleague, 24 Tyson Smith. Tyson and I will be splitting the 25 argument on the various issues this afternoon. Also NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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9 1 with us are Ms. Post from our legal department, Terry 2 Grebel, who is the project manager.
3 JUDGE KARLIN: Okay.
4 THE REPORTER: I'm having a hard time.
5 JUDGE KARLIN: Right.
6 THE REPORTER: If they can come up to the 7 podium.
8 JUDGE KARLIN: Okay.
9 JUDGE ABRAMSON: Do you want that repeated 10 or --
11 JUDGE KARLIN: Have you got that or do we 12 need to repeat it? All right. Let's repeat it if we 13 may. I'm sorry for that but we're going to use --
14 this is the podium that's active?
15 THE REPORTER: I believe this one.
16 JUDGE KARLIN: The one near you?
17 THE REPORTER: Yes.
18 JUDGE KARLIN: Okay. We're going to use 19 one p odium today and I guess that's the one that has 20 the mikes on.
21 Ms. Curran.
22 MS. CURRAN: Okay. Good morning.
23 JUDGE KARLIN: Good morning.
24 JUDGE ABRAMSON: Can you hear that 25 adequately?
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10 1 THE REPORTER: That's better. Thank you.
2 MS. CURRAN: My name is Diane Curran. I 3 represent the San Luis Obispo Mothers for Peace and 4 with me this morning are several members of the board 5 of directors for the Mothers for Peace -- Jill Zamek, 6 Elizabeth Aptelberg and June Cochran, Jane Swanson is 7 out in the hall, and other members of the organization 8 are also in the audience. And we also very much 9 appreciate your having a webcast of this prdceeding 10 because there's a number of members of the group and 11 other people in the community that can't come this 12 morning and can only watch it that way.
13 Thank you.
14 JUDGE KARLIN: Thank you. Welcome. Mr.
15 Repka, for PG&E.
16 MR. REPKA: Yes. Thank you again. David 17 Repka for Pacific Gas & Electric Company and with me 18 are Mr. Tyson Smith, my colleague, who will be 19 splitting argument with me today on the various 20 issues. Also Ms. Jennifer Post, in-house counsel for 21 Pacific Gas & Electric and, among others, with us 22 today Terry Grebel, who is the PG&E project manager 23 for the License Renewal Project.
24 JUDGE KARLIN: Thank you, Mr. Repka.
25 Welcome. NRC Staff, please.
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11 1 MS. UTTAL: Good morning, Judges. Susan 2 Uttal from the Office of General Counsel representing 3 the NRC Staff. With me today is Lloyd Subin from the 4 Office of General Counsel, Max Smith, Catherine 5 Kanatas, all of the Office of General Counsel. The 6 three of them will be splitting the argument today.
7 Also I have Staff members Kimberly Green, Drew 8 Stuyvenberg, and Tina Ghosh representing Staff.
9 JUDGE KARLIN: - Great. Welcome. Thank 10 you, Ms. Uttal.
11 Okay. Couple of housekeeping and 12 administrative matters. We're going to -- cell 13 phones, please turn your cell phones off or to mute.
14 If you have a conversation, please take it out in the 15 hall.
16 Media, if there are any members of the 17 media present, we welcome you and glad you are here.
18 It's an excellent way to better inform the community 19 of what we're trying to do here today. And pursuant 20 to our published rules, copies of which are on the 21 table out there outside of the hearing room, only 22 ambient lighting should be used if any photography is 23 being taken and the photographer should stay in the 24 back of the room. It doesn't look like that's going 2.5 to be an issue here.
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12 1 We're having a transcript made of this 2 proceeding. Our court reporter is over here and there 3 will be a written full transcript and that will be 4 available on NRC's web page promptly in a couple of 5 weeks I think. It's posted up there on the Agency 6 Adams System they call it.
7 In terms of -- for the benefit of the 8 public, I think the lawyers all know this, but perhaps 9 we ought to cover -- I try to cover three points of 10 introduction. First is the role of this Board; 11 second, a bit of the history of this application and 12 this process; and, third, the purpose of today's 13 proceeding. And so, with that, I'll go into the 14 nature and role.
15 First point is the nature of this Board.
16 What is an Atomic Safety and Licensing Board? There 17 is a handout, a little brochure in the back table 18 outside of the hearing room that has a little bit of 19 information that might be helpful to you about the 20 function of these Atomic Safety and Licensing Boards.
21 We call ourselves "the Board" or "a Board."
22 Federal law charges the Nuclear Regulatory 23 Commission with regulating nuclear facilities. And 24 the NRC is headed by five Commissioners who are 25 appointed by the President and confirmed by the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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13 1 Senate. The five Commissioners on the one hand have 2 a large regulatory staff who review applications, who 3 draft and develop regulations that the Commission 4 might want to adopt, and they do a huge amount of the 5 work and most of the work with regard to any given 6 application for a renewal or an upgrade or for a new 7 facility.
8 So there's the NRC Commissioners and then 9 there's the NRC Staff and then there's this Board, the 10 Atomic Safety and Licensing Board. And our role is 11 quite different. We are an independent and separate 12 entity from both the Board and the Staff -- I'm sorry 13 -- the Commission and the Staff. We have no 14 allegiance to the Staff. We're not allowed to 15 communicate with the Staff, the NRC Staff, on any 16 issue associated with this case or any other 17 substantive issue. This is what's called ex parte 18 communication which is prohibited, and so we're not 19 allowed to have any communications except what we hear 20 here today and what they file on the public record in 21 the pleadings of this case, which is open for anyone 22 to see.
23 This same rule applies to the Applicant as 24 well. We have no communications with Pacific Gas &
25 Electric. They can't communicate with us, and any NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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14 1 communications that do occur have to be on the record 2 either today in oral -- in a public proceeding or in 3 a written document that's filed for all to see.
4 In the same way, this Board is not allowed 5 to have any communications with any of the 6 Commissioners, the five Commissioners, about this 7 case. They don't come down the hall and tell us what 8 they think we should rule. We don't ask them what 9 they would like us to do. They can't even do 10 performance reviews on us. We -- they can't give us 11 bonuses. They can't cut our salary. They can't fire 12 us. They really can't do anything. This is an 13 attempt -- and I think it works reasonably well -- to 14 give us some independence and to allow us to rule the 15 way we see fit, call them the way we see them. And if 16 somebody doesn't like what we've ruled, either the NRC 17 Staff or the applicant or the intervenor, they can 18 appeal it to the Commission and the Commission will 19 look at it and they can reverse us or they can affirm 20 us, and we do our best and hopefully it's the right 21 thing. But if somebody doesn't like it, they can 22 appeal.
23 And I think it's good to point out that 24 we're kind of like a federal court. You know, you 25 have three branches of government in the Federal NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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15 1 Government. You've got the Executive, the 2 Legislative, and the Judicial, and we are a quasi-3 judicial entity and that's why the Board, the Atomic 4 Safety and Licensing Board, we call ourselves a quasi-5 judicial. We're -- we function as judges, and often 6 we have our proceedings in courtrooms and courthouses 7 and we follow many of the same procedures that you 8 would see across the street in a county courthouse 9 here. And so that's -- I think it's important for the 10 community to understand that because I know there have 11 been other meetings in this community that the NRC 12 Staff has conducted with the Applicant and other 13 public participation, and this is a little different 14 animal, I think, and this Board is established by a 15 statute -- there's a federal statute, part of the 16 Atomic Energy Act -- that sets up the Atomic Safety 17 and Licensing Boards. And it's somewhat unique in the 18 sense that we're not just -- I don't want to say 19 "just" because I'm a lawyer, but we have not just 20 lawyers; we have technical expertise, people with high 21 degrees of scientific expertise and technical 22 expertise in the industry to bring to bear on some of 23 the questions that the parties raise to us.
24 Second, a brief history of this 25 proceeding. The record we have reflects that in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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16 1 November of 2009, PG&E submitted a renewal application 2 to the NRC Staff, and in January of 2010, this year, 3 the Staff published a notice in the Federal Register 4 giving the public the opportunity to file a petition 5 to challenge the license renewal. It's kind of a 60-6 day speak now or forever hold your peace type of a 7 notice in the Federal Register. And, in response to 8 that, on March 22nd, the San Luis Obispo Mothers for 9 Peace filed a petition and a request for a hearing 10 with five contentions, and you'll hear more about that 11 -- contentions -- and they also.requested the waiver 12 of two regulations associated with a couple of 13 contentions. So there's a waiver request and five 14 contentions. And that's kind of what we're here to 15 talk about and ask questions about today.
16 Since that time, Pacific Gas & Electric 17 has filed an answer responding to those contentions 18 and the Staff has done the same. The NRC Staff 19 likewise has done the same.
20 PG&E argues that none of the contentions 21 should be allowed in and that this request for hearing 22 should be denied entirely. The Staff takes the 23 position that a part of one of the contentions may be 24 admissible but the other four and a half, I guess you 25 would say, are not. So we're going to ask questions NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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17 1 about that. The Petitioners have filed a reply in 2 April. And in April, this Board was created. The 3 Commission issued an order establishing these three 4 individuals that you see here today as the Board.
5 There are quite a number of judges on the Atomic 6 Safety and Licensing Board, and we were appointed to 7 handle this case.
8 So after reading all of the pleadings, and 9 they were pretty large, and the waiver request, we had 10 some questions. We've decided we think would be 11 helpful to ask some questions of the lawyers for the 12 parties about what they've filed so we can better 13 decide this part of the proceeding.
14 Okay. Third, the purpose of today's 15 proceeding. The Board has to decide today or -- well, 16 we'll decide. I'm not sure whether we'll issue our 17 ruling today. I kind of don't think we'll issue the 18 ruling today, but --
19 JUDGE ABRAMSON: We won't decide today.
20 JUDGE KARLIN: We won't decide today. But 21 we will listen, and the purpose of this is to help us 22 to decide whether the request for hearing should be 23 granted. In order to get a request for hearing 24 granted, among other things, the Petitioner, San Luis 25 Obispo Mothers for Peace, needs to propound an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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18 1 admissible contention and those are sort of terms of 2 art under the NRC regulations and CFR 2.309(f), and 3 that provides criteria for what constitutes an 4 admissible contention.
5 And the criteria include things like, 6 well, the contention has to be within the scope of the 7 license renewal. It has to be relevant and within the 8 scope of the license renewal. It has to include a 9 brief explanation of the basis for the-contention. It 10 has to include a concise -- "concise statement" of the
- 11. alleged facts or expert opinions which support the 12 petition or the contention. So those are the kind of 13 things we're going to ask questions about perhaps 14 today and try to understand whether those contentions 15 meet those criteria.
16 PG&E says the contentions meet none of 17 those -- don't meet those criteria, and of course 18 Mothers for Peace say that they do.
19 So they filed extensive briefs on this, 20 pro and con. We've read them all and we have these 21 questions.
22 After today, we will issue a written 23 decision where we'll decide whether the five 24 contentions and the two waiver requests meet the 25 criteria and whether any admissible contention has NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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19 1 been propounded. The decision will be issued. It 2 will probably be in July. It might be late June, but 3 I'm thinking July is more likely.
4 Okay. Now, our decision can go one of two 5 ways. If we say, Yes, they have propounded an 6 admissible contention, then what we do is we grant the 7 request for a hearing. Today is not the hearing. The 8 hearing would come later. The hearing becomes more 9 like a trial where -witnesses come in, they testify, 10 and we take exhibits and testimony and we decide like 11 a trial, like --
12 The other option is for us to say, No, 13 they haven't propounded any admissible contentions 14 and, if we rule that way, then that's the end of the 15 case unless the San Luis Obispo Mothers for Peace want 16 to file an appeal to the Commission, which they can 17 do, and then they can take it further on up the chain 18 to the federal courts as well if they don't like the 19 Commission's ruling.
20 So we're not here to have the evidentiary 21 trial. We're just here to have the lawyers argue the 22 admissibility of the contentions.
23 At this point, are there any additions, 24 Judge Abramson?
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20 1 something to say.
2 JUDGE KARLIN: Good. Yeah.
3 JUDGE ABRAMSON: Judge Karlin did a nice 4 job of explaining what this is all about, but I think 5 there are a couple of facts that warrant some 6 clarification or some expansion.
7 First of all, for those -- and I'm sure 8 the lawyers here all know this -- but for those of you 9 who are not familiar with Atomic Safety and Licensing 10 Boards, we're a creation of the Atomic Energy Act.
11 We're a unique entity in the United States and maybe 12 worldwide. The -- Congress, when they required the 13 creation of Atomic Safety and Licensing Boards, 14 mandated that each board will be made up of one person 15 who's skilled in the conduct of administrative 16 proceedings, which the Commission's interpreted 17 generally to mean a lawyer, and two persons who are 18 scientists and, in fact, Congress said it expects 19 those scientists will be persons -- I can't quote this 20 exactly -- but persons of national standing and 21 caliber in nuclear science. You won't see another 22 board like this or another court like this anywhere in 23 the world I believe. And medical tribunals, for 24 example, don't get to this level.
25 What -- and the other thing that that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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21 1 means is that each of us, the lawyers and the 2 scientists, must vote on every decision, every issue 3 on every decision. That means the scientists have to 4 understand the legal issues and the lawyers have to 5 understand the scientific issues. So we're quite 6 unique.
7 We act very much like a federal trial 8 court. We take the evidence. We make the decision.
9 Our decision is appealed to the Commission. The 10 Commission may decide to review all the facts and have 11 basically their own hearing which they would call a 12 hearing de novo, or the Commission may just look at 13 whether our ruling, should be overturned or upheld and 14 not dig into the facts in detail.
15 From there, an appeal goes to the federal 16 courts of appeal. So the net effect is that within 17 the Commission, we're like a trial court. And as 18 Judge Karlin said, we are independent of the 19 Commission. We don't take any marching orders. They 20 can't interfere with what we do.
21 He's not quite right that they can't fire 22 us. But I don't know of any instance where they have.
23 What we do have within the panel -- and the panel has 24 a lot of judges who are assigned to the panel and for 25 each time we have a case, three judges are selected NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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22 1 for the panel in order to try to establish a board 2 that has -- meets the criteria and has the technical 3 expertise to handle the issues that may come up as 4 well as the legal expertise.
5 Within the panel, scientific judges have 6 five-year appointments. Legal judges have lifetime 7 appointments. So there's that distinction. It was 8 enacted by the Commission some years ago, and the 9 rationale, frankly, eludes me but it's there.
10 JUDGE KARLIN: All right. Thank you.
11 JUDGE ABRAMSON: Thank you.
12 JUDGE KARLIN: That's good. Okay.
13 Format. Before we start, we're going to talk a little 14 bit about format and logistics. This proceeding today 15 will break down into three parts. First, we've -- and 16 we've got this order that we issued on May 4th that 17 lays some of this out. Copies of that should be out 18 on the table outside for interested members of the 19 public. The lawyers already have this -- three parts.
20 First, an opening statement from each of 21 the parties, ten minutes. The Mothers of Peace 22 members will go first. PG&E will go second. And the 23 Staff will go third. Up to ten minutes. And if you 24 don't need to take ten minutes, that's great. You 25 know, it is up to ten minutes.
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23 1 Second, we're going to go to each of the 2 contentions, those five contentions as I say, and talk 3 about or ask questions about each of them in turn.
4 There's one technical contention. That's called --
5 well, denominated technical -- TC-1, Technical 6 Contention 1, and then there's four environmental 7 contentions and so they are EC-I to EC-4, total of 8 five, and we're going to take each of them in turn.
9 We had originally allocated or we have allocated in 10 our order a certain amount of time for each of those 11 contentions, and it was 30 minutes for the.Petitioner, 12 San Luis Obispo Mothers for Peace; 20 minutes for 13 Pacific Gas & Electric; and ten minutes for the Staff.
14 Now, that time frame, that total of an 15 hour on most of the contentions -- the waivers were a 16 little different -- the purpose of this is not to have 17 the lawyers give speeches and they know this. They 18 know how this works -- it's for us to ask questions.
19 And so the 30 minutes or the 20 minutes is really not 20 so much a limit on them as it's a limit on --
21 tentative limit on us. I mean, if one of us have a 22 burning question, we're not going to cut ourselves off 23 at 20 minutes or whatever it is. We realized upon 24 looking at this thing that actually that's probably 25 not going to work very perfectly. We may have in some NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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24 1 contentions more questions for the Applicant than 20 2 minutes and we may have less questions of the Mothers 3 for Peace than 30 minutes, and so I think we're going 4 to dispense with the formal time frames and restricted 5 time frames and just simply ask such questions as we 6 think are important until such time as we are done 7 asking questions and then we'll, you know, move on to 8 the next party or the next contention in that way. So 9 please bear with us. I think the first one perhaps 10 may take more than a total hour. Some of the others 11 may take a bit less after we've gotten up to speed on 12 some of the issues. So we'll have -- but T think we 13 still are going to do the process where the sequence 14 will be on any given contention the Mothers for Peace 15 will go first, the -- because they have essentially 16 the burden of establishing that these contentions are 17 admissible, so they get the shot to go first.
18 Pacific Gas & Electric will then respond 19 with their thoughts as to why these contentions are 20 not admissible. And then the Staff will get a chance 21 to also lay out their legal points.
22 And then we will have San Luis Obispo 23 Mothers for Peace have the opportunity to have a bit 24 of rebuttal at the end because they have the burden on 25 this thing and that's the way we established it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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25 1 before. And so we'll let them have one last shot to 2 ask -- ask them -- again, we're going to be asking the 3 questions, but some of them may be questions that are 4 related to what transpired earlier.
5 And then at the end -- that's the second 6 part, the contentions. First, the opening statements.
7 Second, contentions 1, 2, 3, 4, 5. And then the third 8 major element will be a closing statement or argument 9 of five minutes from each of the parties.
10 JUDGE ABRAMSON: Up to.
11 JUDGE KARLIN: Up to. Up to. And, again, 12 this is not for speeches. This is for us to ask 13 questions.
14 Let's see here. Ms. Bu will help us keep 15 time with regard to the opening statements, those that 16 are time limited, and she will give you a two-minute 17 warning on that. So if you get to that point, she'll 18 let us all know.
19 And as to logistics, I apologize we don't 20 have three counsel tables here which is sort of our 21 normal way of doing it. So what we need to do is ask 22 each of the lawyers who are going to argue on a 23 particular contention to go to the podium on my left, 24 I guess it is, and speak from there and we'll go in 25 turn. Speak clearly so that, you know, obviously we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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26 1 can hear you but the members of the public can also 2 hear you. I think the acoustics in here are very good 3 and they have microphones, that sort of thing.
4 We intend to finish today. We will go 5 until we get finished. We have -- the Board of 6 Supervisors has gratefully given us as much time as we 7 need -- six o'clock -- five o'clock, six o'clock, 8 seven o'clock. I really don't think we're going to 9 need that much time, but we don't have this facility 10 tomorrow and we want to do as much as we can and get
.11 it done today.
12 With that, I'd like to ask if the parties 13 have any questions or clarifications that are needed.
14 Ms. Curran -- and I'm sorry to ask you, but I think --
15 do you have any questions or further points?
16 MS. CURRAN: No.
17 JUDGE KARLIN: No. She indicates no for 18 the record. Mr. Repka?
19 MR. REPKA: No.
20 JUDGE KARLIN: Okay. And Mr. Repka says 21 no for the questions. And, lastly, Ms. Uttal?
22 MS. UTTAL: No.
23 JUDGE KARLIN: No. All right. Great.
24 Then we will start with the opening statements.
25 Ms. Curran, ten minutes, please.
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27 1 JUDGE ABRAMSON: Or less.
2 JUDGE KARLIN: Or less.
3 OPENING STATEMENT ON BEHALF OF THE PETITIONERS 4 MS. CURRAN: Thank you for the opportunity 5 to make an opening statement to give the public a 6 general idea of the concerns that the San Luis Obispo 7 Mothers for Peace seeks to have addressed in this 8 proceeding for the relicensing of the Diablo Canyon 9 Nuclear Plant.
10 And thank you all for coming.
11 San Luis Obispo Mothers for Peace has 12 served as a community-based watchdog over the Diablo 13 Canyon Nuclear Plant since 1973 when the group 14 intervened in the original operating license case for 15 the plant. At that time, the Mothers for Peace had 16 two primary concerns about the safety and 17 environmental risks posed by the operation of the 18 Diablo Canyon plant -- first, that the plant was 19 located dangerously close to a major and active 20 earthquake fault, the Hosgri Fault; and, second, that 21 the plant was vulnerable to sabotage.
22 The NRC completely refused to consider the 23 Mothers for Peace's concerns regarding sabotage. And 24 after hearings that lasted over ten years, the NRC 25 finally rejected the Mothers for Peace's concerns NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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28 1 about earthquake risks and allowed Diablo Canyon to 2 operate.
3 While the Mothers for Peace's concerns 4 were rejected by the NRC, they did not go away. In 5 fact, they have been exacerbated in recent years.
6 Today, not only is the safety of Diablo Canyon 7 threatened by the Hosgri Fault, but a new fault has 8 been discovered that is even closer to the plant, the 9 Shorelihe Fault. PG&E has only made a preliminary 10 study of the fault. It won't get the results of a 11 more complete study that is now being done in 12 collaboration with the United States Geologic Service 13 until 2013. Even though the operating license for 14 Unit 1 doesn't expire until 2024, which is more than 15 ten years after 2013, PG&E wants to go -- the NRC to 16 go ahead and make a license renewal decision now, 17 before the earthquake study results are in.
18 The Mothers for Peace have asked for a 19 hearing in order to make sure that before the NRC 20 signs off on the adequacy of PG&E's renewed license to 21 protect the environment, it is fully informed about 22 the risks to the environment posed by an earthquake 23 and the measures that should be taken to avoid or 24 mitigate the risks.
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29 1 occasions, in 2001 and 2009, the NRC made an 2 announcement about earthquake risks that has profound 3 implications for renewal of the Diablo Canyon Nuclear 4 Power Plant license. The NRC announced that although 5 it generally has confidence that the environmental 6 risks of an earthquake-induced spent fuel pool 7 accident is small, it has no basis for making such a 8 generalization with respect to any nuclear power plant 9 west of the Mississippi River. In other words, the 10 NRC has no current basis for saying that storage of 11 spent fuel in the Diablo Canyon fuel pools during a 12 20- or perhaps 40-year license renewal term is safe 13 for the environment.
14 Given that the Diablo Canyon pool is now 15 filled to capacity with radioactive helium and will 16 remain so during any license renewal term, an 17 earthquake-caused severe accident in the spent fuel 18 pool could cause the release of a large quantity of 19 radioactive helium into the air with potentially 20 catastrophic consequences for a large area of 21 California and beyond.
22 Another development that has occurred 23 since the original operating license case for Diablo 24 Canyon is the September 11th attacks on the World 25 Trade Center and the Pentagon. These attacks NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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30 1 graphically and tragically demonstrated that high-2 profile targets like nuclear power plants are 3 vulnerable to attack by sub-national groups who have 4 the capacity and the intent to do enormous damage.
5 Yet neither the environmental report prepared by PG&E 6 not the generic environmental study prepared by the 7 NRC for license renewals addresses the environmental 8 impacts of an attack on the Diablo Canyon spent fuel 9 pool or any other spent fuel pool.
10 With respect to attacks the reactor 11 itself, although the NRC's generic environmental 12 impact statement addresses the impacts of attacks on 13 reactors, it does not identify any mitigative measures 14 that would avoid or reduce the impacts of such 15 attacks.
16 Finally, over the past several years, 17 inspection reports issued by the NRC technical staff 18 have shown that PG&E has a chronic pattern of failing 19 to properly address and correct safety problems at the 20 Diablo Canyon plant in a timely and adequate way, yet 21 PG&E plans to use the same problem-plagued 22 organization to manage aging safety equipment during 23 a license renewal term.
24 In this hearing, the Mothers for Peace 25 seeks to force PG&E to take steps to ensure that the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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31 1 problems which plague its current operation do not 2 cause it to overload and fail to correct future safety 3 problems with aging and corroding equipment.
4 In requesting a hearing on this consent, 5 Mothers for Peace asks this licensing board to enforce 6 two major federal statutes for protection of public 7 health and the environment -- the Atomic Energy Act 8 and the National Environmental Policy Act, also known 9 as NEPA.
10 The Atomic Energy Acts forbids the NRC 11 from renewing PG&E's license if it would pose an 12 unacceptable level of risk to public health and 13 safety. The licensing board should apply the act to 14 prohibit PG&E from relying for the management of aging 15 and corroding safety on an organization that has 16 demonstrated it has difficulty managing even the 17 ordinary sorts of safety problems that arise in the 18 current license term.
19 Mothers for Peace also asks the licensing 20 board to apply NEPA by refusing to permit the 21 relicensing of Diablo Canyon until the environmental 22 impacts of severe earthquakes on the reactor and the 23 spent fuel pools has been adequately studied. And 24 until measures have been identified to avoid or 25 mitigate those impacts, NEPA requires the NRC to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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32 1 consider the potential effects of relicensing Diablo 2 Canyon in advance of relicensing the plant, not after 3 it's done.
4 NEPA also requires the NRC to fully 5 consider the environmental impacts of attacks on the 6 Diablo Canyon Nuclear Plant before relicensing it.
7 That means examining the impact of an attack. on the 8 spent fuel pools, which has not been analyzed in any 9 previous environmental document. It also means that 10 although the NRC has analyzed the impacts of an attack 11 on the reactor itself, it must now analyze and--
12 identify and analyze the cost-effectiveness of 13 specific measures that could be taken to avoid or 14 mitigate the consequences of an attack on the reactor.
15 Most of the issues raised by Mothers for 16 Peace in this case relate to a class of accidents that 17 are called severe accidents. These are accidents with 18 relatively low likelihood that are nevertheless 19 reasonably foreseeable, and we learned this from the 20 Three Mile Island accident and the accident at the 21 Chernobyl Nuclear Plant in Russia. Therefore, the law 22 requires that even though these severe accidents don't 23 fall into the category of the ordinary course of 24 events, they must be taken into account.
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33 1 agencies that enforce it. The entire country is now 2 witnessing the horrific consequences of the Minerals 3 Management Service's failure to make a rigorous 4 analysis of the potential for severe accidents and the 5 means to be avoiding --
6 MS. BU: Two minutes.
7 MS. CURRAN: -- or mitigating them before 8 permitting BP to conduct deep ocean oil drilling in 9 the Gulf of Mexico. The Gulf oil spill is a 10 cautionary tale for any large and dangerously 11 federally-licensed operation, the failure to enforce 12 environmental laws can have devastating effects for 13 generations to come.
14 Mothers for Peace calls upon this 15 licensing board to fully enforce the law in this case 16 by requiring that the Agency's decision about 17 relicensing the Diablo Canyon Nuclear Power Plant must 18 await crucial information about the risk of a severe 19 earthquake, that it must be supported by an adequate 20 study of the impacts of an attack on the spent fuel 21 pool, and that it must identify cost-effective 22 measures to avoid or mitigate an attack on either the 23 fuel pools or the reactor.
24 Thank you very much.
25 JUDGE KARLIN: Thank you. Mr. Repka.
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34 1 OPENING STATEMENT ON BEHALF OF THE APPLICANT 2 MR. REPKA: Thank you. Pacific Gas &
3 Electric Company has filed an application for renewal 4 of the operating licenses for Diablo Canyon Units 1 5 and 2 on a schedule that is fully consistent with the 6 NRC's regulations as well as with the practice of 7 other plants in the nuclear industry and the NRC's 8 review of those applications.
9 Quite simply, the timing of the 10 application is not an issue before the licensing 11 board. What is at issue is whether or not PG&E's 12 application meets the requirements of 10 CFR Part 54 13 and whether PG&E has provided sufficient information 14 to support the NRC's environmental review required 15 under 10 CFR Part 51.
16 The Mothers for Peace have submitted five 17 proposed contentions, all of which fundamentally 18 challenge the scope of what must be addressed for 19 license renewal. The proposed contentions raise 20 matters of current management performance, issues 21 related to the seismic design of the plant that are 22 subject to ongoing regulatory review, and issues of 23 spent fuel storage and terrorist attacks that have 24 been previously addressed in the NRC's generic 25 environmental impact statement, referred to as the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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35 1 guide for license renewal.
2 In promulgating its license renewal 3 regulations, the Commission was very clear in its 4 intentions related to the particular focus of a 5 license renewal review.
6 In both the 1991 and 1995 NRC rulemakings, 7 the Commission referred to its fundamental principles 8 of license renewal. The Commission's first principle 9 is that license renewal is focused on age-related 10 degradation unique to a period of extended operation.
i11. Neither the licensing basis of the plant nor the full 12 scope of regulatory issues is a matter for review in 13 this forum. Does this mean that new issues regarding 14 operating performance and the adequacy of the design 15 are ignored by the NRC? No. Of course it does not.
16 The Commission went on to say that the 17 current regulatory processes will assure that the 18 current licensing basis will maintain adequate 19 protection of health and safety. This includes 20 regulatory inspection and oversight processes as well 21 as other regulatory processes related to the review of 22 new information that will determine when and if 23 licensing basis changes are needed or performance 24 improvements are required.
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36 1 is actively considered today. The Mothers for Peace 2 raised issues related to the seismicity and the 3 Shoreline Fault near Diablo Canyon. This is a good 4 example of how the process works. Seismicity is an 5 issue that PG&E continues to investigate proactively, 6 as required by its current license. The -Shoreline 7 Fault is an issue that was identified by the USGS 8 through PG&E-funded research. The issue was reported 9 to the NRC.
10 To date, no information has been 11 identified to suggest that the plant is not safe.
12 The Mothers for Peace base their license 13 renewal contention on the current regulatory 14 correspondence. They add no expertise to the 15 discussion. The contention ignores the regulatory 16 process that is working precisely as the Commission 17 intends.
18 The Shoreline Fault is not a license 19 renewal issue. It is an issue that cannot and does 20 not wait for license renewal. It is being addressed 21 today.
22 In promulgating the license renewal rules, 23 the Commission announced a "second and equally 24 important principle of license renewal." That is, 25 that the licensing basis will be maintained in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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37 1 future renewal period just as it is today. Compliance 2 with the licensing basis and implementation of aging 3 management programs now and in the future will be 4 subject to NRC inspection, oversight, and enforcement 5 programs.
6 The Mothers for Peace today raise a number 7 of current-day relatively minor inspection enforcement 8 matters and they leap to the conclusion that PG&E will 9 not be able to implement aging management programs.
10 But the matters they raise will be and are being 11 addressed through the current regulatory processes.
12 Aging management programs in the future will be 13 subject to oversight. These are not license renewal 14 issues.
15 The logic of the contentions also 16 represents a huge leap. None of the current issues 17 cited by the Mothers for Peace is even remotely 18 indicative of the overall operation and management of 19 Diablo Canyon, much less indicative of how PG&E will 20 implement aging management programs in the future.
21 Historically, Diablo Canyon has been an 22 excellent performing plant, with a record of 23 reliability and safety. The current plant performance 24 is measured by, among other indicators, the NRC's 25 ongoing reactor oversight process. All current ROP NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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~38 1 assessment inputs for the plants are green and the 2 plant is in the licensee response column of the NRC's 3 action matrix. In this context, the Mothers for Peace 4 claims about operational performance are simply 5 unfounded, in addition to being outside the scope of 6 license renewal.
7 Finally, in other contentions, the Mothers 8 for Peace address generic issues that have been 9 evaluated for all plants in the NRC's generic 10 environmental impact statement. Mothers for Peace 11 recognize that they need a waiver to address those 12 issues again in this forum, but a waiver is not 13 warranted. On issues of spent fuel storage and 14 terrorist attack, there is nothing unique about Diablo 15 Canyon that justifies a waiver.
16 Ms. Curran said this morning that the NRC 17 has no basis for its conclusion that its assessments 18 apply to plants west -- in the western United States.
19 This is simply incorrect.
20 We will address the specific issues 21 further in our discussions today of each contention 22 and we welcome the opportunity to address your 23 questions. But in the final analysis, license renewal 24 for Diablo Canyon will serve the electricity customers 25 of California very well. It will be consistent with NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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39 1 NRC's requirements and will assure that the plant 2 continues to operate as a vital component of the 3 state's electricity supply and that is essential to 4 meeting the state's goals for greenhouse gas emission 5 reductions.
6 Thank you.
7 JUDGE KARLIN: Thank you, Mr. Repka. Ms.
8 Uttal. Mr. Smith.
9 MR. M. SMITH: Yes, Your Honor.
10 JUDGE KARLIN: Yes. Thank you.
11 OPENING STATEMENT ON BEHALF OF THE NRC STAFF 12 MR. M. SMITH: Good morning, Judge Karlin, 13 Judge Abramson, Judge Trikouros. I'm Maxwell Smith on 14 behalf of the NRC Staff this morning.
15 As discussed in our pleadings, the NRC 16 Staff supports the Mothers for Peace's request for 17 hearing, but on a limited basis. To grant a request 18 for hearing, the Board must find that Mothers for 19 Peace has established standing and it's proffered at 20 least one admissible contention. The Staff believes 21 that part of one contention, Environmental Contention 22 1, is admissible, where the remainder of Environmental 23 Contention 1 and the balance of the contentions are 24 not.
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40 1 the Staff's stance on each contention,. I'd like to 2 give a little bit of background on the process before 3 us. When it promulgated a license renewal regulation, 4 Commission had founded its rule on two findings.
5 First, the Commission found that with the exception of 6 age-related degradation unique to license renewal, the 7 existing regulatory process was adequate to ensure the 8 safe operation of the plant during the period of 9 extended operation.
10 Second, the Commission found that if that 11 regulatory process were modified to account for the 12 age-related degradation unique to license renewal, 13 then the regulatory process would suffice to ensure 14 safe operation during the period of extended 15 operation.
16 Thus, the Commission limited the scope of 17 license renewal to issues that are related to 18 modifications of the licensing process to account for 19 age-related degradation. Now, this conclusion is 20 embodied in 54.29(a), which I'll paraphrase, that 21 states the Commission will grant the license renewal 22 application if it finds that actions have been 23 identified and steps will be taken with respect to 24 managing the effect of age-related degradation or 25 updating time limited aging analyses such that there's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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41 1 a reasonable assurance the plant will continue to 2 operate with its licensing basis and during the period 3 of extended operation, which is to say it will operate 4 safely.
5 Thus, the focus of the Staff's review on 6 the license renewal application, as well as any 7 administrative proceedings on the application, are 8 limited to the aging management programs and time 9 limited aging analyses proffered by the Applicant.
10 As a corollary, the Commission promulgated 11 another rule, 54.30, which states that if the license 12 renewal review uncovers current issues of 13 noncompliance at the plant, then the Applicant has an 14 obligation to address those ongoing compliance issues 15 now. And the Applicant's efforts to address those 16 issues are outside of the scope of the license renewal 17 review pursuant to 10 CFR 54.30(e).
18 The Commission also must conduct an 19 environmental review, as mentioned earlier, under the 20 National Environmental Policy Act to assess the 21 environmental impacts of operation during the period 22 of extended operation.
23 The Commission has determined that many of 24 those environmental impacts will be the same across a 25 -- all the plants or a wide spectrum of them. Thus, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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42 1 in 1996, the Commission prepared a generic 2 environmental impact statement, or a GEIS, which 3 analyzed issues applicable to all plants and made 4 conclusions on them, so-called Category 1 issues, and 5 also identified issues that need to be resolved on a 6 price-specific basis, so-called Category 2 issues.
7 The GEIS's determinations are incorporated 8 into the regulations and may not be challenged during 9 the license renewal proceedings absent a waiver by the 10 Commission. The Commission set a high standard to 11 waive a rule. To waive, a rule; the Commission 12 requires a proponent of waiver to demonstrate that the 13 application of the rule will not serve the purposes 14 for which the Commission promulgated the rule in light 15 of special circumstances unforeseen by the Commission 16 that are unique to the facility and the proponent of 17 the waiver must also demonstrate that application of 18 the rule to the case would prohibit the Commission 19 from considering a significant issue.
20 As discussed in our brief, in a nutshell, 21 the Staff supports and opposes parts of Environmental 22 Contention 1 or EC-I. EC-I asserts that the Applicant 23 should have accounted for the impact of the Shoreline 24 Fault in the probabilistic risk assessment that 25 undermines its severe accident mitigation alternative NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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43 1 analyses.
2 Staff agrees that the Applicant has not 3 demonstrated how the probabilistic risk assessment or 4 a PRA accounts for the Shoreline Fault, but the Staff 5 disagrees that a fully updated PRA is necessary to 6 satisfy the Agency's NEPA obligations. Rather, a 7 conservatively modified PRA that overstated the 8 dangers and risks posed by the Shoreline Fault would 9 be adequate for the severe accident mitigation 10 alternative analyses or SAMA analyses required by 11 NEPA.
12 Second, Technical Contention 1, alleges 13 that, in light of ongoing compliance issues at the 14 Diablo Canyon plant, the Applicant will not 15 effectively manage the impacts of aging during the 16 period of extended operation. However, as already 17 discussed, ongoing compliance issues are outside of 18 the scope of the Commission's regulations. This is 19 license renewal review pursuant to the Regulation 20 54.30(b).
21 The next Environmental Contentions 2 and 22 3 are grouped together because they both challenge the 23 environmental impacts of the spent fuel pool during 24 the period of extended operation. Those impacts were 25 considered generically by the Commission in the 1996 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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44 1 GEIS and, therefore, cannot be challenged on a license 2 renewal proceeding absent a waiver of the rule.
3 The Mothers for Peace asserts that the 4 proposed draft provision to the 1996 GEIS undermines 5 the justifications for that rule. The Mothers for 6 Peace have not pointed to any new analysis or any new 7 information contained in that update that tend to 8 demonstrate that the conclusions in the original GEIS 9 are faulty or otherwise unsafe nor don't adequately 10 assess the impacts of a continued operation.
11 Therefore, the Mothers for Peace have not 12 carried their burden to demonstrate why the rule 13 should be waived in this case.
14 Last, Environmental Contention 4 addresses 15 the Applicant's SAMA analyses do not adequately 16 account for the impact of terrorist attacks. But the 17 Commission's already considered and rejected a very 18 similar contention in the Oyster Creek proceeding. In 19 that case, the Commission found that price-specific 20 SAMA analyses, combined with the generic analysis of 21 terrorist attacks, in the 1996 GEIS adequately 22 satisfied the Agency's NEPA obligations. Like this 23 case, the Applicant relies on the 1996 GEIS as well as 24 price-specific SAMA analyses and, therefore, this 25 Commission is foreclosed by -- contention is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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45 1 foreclosed by Commission precedent.
2 I'd like to just close with a few other 3 comments about the ongoing process. However the Board 4 rules today, the Staff will continue to do a thorough 5 safety and environmental review of the Applicant's 6 application and also the public's opportunity to.
7 participate in this proceeding will not end with the 8 Board's ruling; rather, just with respect to the 9 environmental review requited by NEPA, the public will 10 have more opportunities to participate through 11 comments in the scoping process and on the draft 12 environmental impact statement.
13 Thank you.
14 JUDGE KARLIN: Thank you, Mr. Smith.
15 Okay. That was helpful. We finished the opening 16 statements and now we will proceed to Technical 17 Contention Number 1.
18 Ms. Curran will address or respond to 19 questions that we have and we can talk about TC-I.
20 We'll call it TC-l. I might mention -- I think we 21 were going to say this earlier -- we ask a lot of 22 questions up here sometimes. And we're trying to 23 probe for logic and thinking and the rationale being 24 presented. It doesn't necessarily mean we have a 25 ruling one way or the other in mind. Sometimes we may NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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46 1 be supportive of a proposition and a need to have the 2 counsel or the advocate give us better help or better 3 explanation, so all I'm saying is try not to read too 4 much into our questions as to where we're going with 5 all of this. I know it's almost inevitable for you to 6 try to do that. But it doesn't really inform you very 7 much where we're going.
8 So, with that, Ms. Curran, we are focusing 9 on Technical Contention Number 1. Could you -- and I 10 might mention to the parties if you've got your CFRs 11 with you, it's sometimes a good idea to have it with 12 you at the podium because I tend to -- all I know is 13 what's written in the regulations and so I read the 14 regs. and ask questions. That's sometimes the way I 15 think.
16 Could you restate Contention TC-I for us, 17 Ms. Curran?
18 MS. CURRAN: Sure. Before I do, I'd just 19 like to make sure that I reserve ten minutes for 20 rebuttal.
21 JUDGE KARLIN: Right.
22 MS. CURRAN: I understood what you were 23 saying before, but just to make sure that I -- however 24 much time we take, I'd --
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47 1 -- we will give you a chance for rebuttal.
2 MS. CURRAN: Yes.
3 JUDGE KARLIN: Which may or may not be ten 4 minutes.
5 MS. CURRAN: Right.
6 JUDGE KARLIN: That's sort of function-7 driven by our questions more than anything else.
8 MS. CURRAN: Okay.
9 JUDGE KARLIN: Understood.
10 MS. CURRAN: All right. The contention is 11 the Applicant, PG&E, has failed to satisfy 10 CFR 12 Section 54.29's requirement to demonstrate a 13 reasonable assurance that it can and will "manage the 14 effects of aging" on equipment that is subject to the 15 license renewal rule; i.e., safety equipment without 16 moving parts. In particular, PG&E has failed to show 17 how it will address and rectify an ongoing pattern of 18 management failures with respect to the operation and 19 maintenance of safety equipment.
20 JUDGE KARLIN: Okay. I have a couple of 21 questions. We read the Staff's brief and PG&E's brief 22 and they articulate I think properly that, you know, 23 the Commission, in setting up the license renewal 24 regulations, have said that, Well, we're not supposed 25 to get into current licensing basis issues, whether or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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48 1 not the facility is currently in -- you know, doing 2 the right thing or that sort of matter.
3 And on page 20 I guess of the Staff's 4 brief, I see them say, "The Commission crafted its 5 license renewal role around a carefully-constructed 6 dichotomy between issues related to aging and current 7 compliance issues." I'm paraphrasing a little bit.
8 And then they go on to say, "TC-1 proposes to 9 eviscerate that distinction. If the Board accepts the 10 basic premise of TC-l, the current operating issues 11 are relevant to the license renewal review because 12 these issues reflect on the Applicant's ability to 13 implement the terms of its AMPs, then any operating 14 issue regarding Diablo Canyon would be admissible."
15 Could you respond to that? I mean, is 16 what -- how do you distinguish between now the problem 17 with current licensing and your -- isn't that what 18 you're raising?
19 MS. CURRAN: Right. Well, first of all, 20 the word "management" or "manage" appears in two 21 different places in the regulation.
22 JUDGE KARLIN: Four different places.
23 MS. CURRAN: Oh, okay. I saw two this 24 morning, 54.21 and 54.29, so clearly the word "manage" 25 has to mean something. And in our view, the way the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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49 1 Staff and PG&E read the Regulation, it doesn't mean 2 anything. Because if you have a program, then that's 3 all you need to do is put in the program and 4 there's -- no party can raise a question about whether 5 -- whether the Applicant can actually manage the aging 6 equipment.
7 And in my reading of the revised license 8 renewal rules, which I think was in 1996, the 9 Commission basically narrowed the rule saying, Well, 10 the class of equipment that we're going to focus on is 11 narrower it maybe doesn't get the same kind of 12 measures for maintenance that other things do, that 13 it's perhaps harder to evaluate whether it's having 14 problems with aging or corrosion, etc. and we're going 15 to focus on that.
16 But I don't read the Regulation as 17 excluding any concern about whether those extra 18 measures that are needed to manage aging equipment, 19 whether the licensee has an adequate organization for 20 actually carrying out those extra measures. I don't 21 read the rules -- I don't read the preamble to that 22 rule as excluding that question.
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50 1 can you manage this aging equipment. But where 2 there's a pattern in the past of inadequate 3 management, where -- and this is what we've found in 4 these inspection reports was they called it this --
5 NRC inspectors called it an adverse trend, repeated 6 failure to be able to identify problems and solve them 7 in a timely way.
8 And it seemed reasonable to us to ask, 9 Well, if this licensee is having a lot of trouble 10 dealing with the ordinary current licensing basis type 11 of problems, then what will happen in the license
.12 renewal term where the problems are more challenging?
13 JUDGE KARLIN: So if I understand, your 14 point is not whether or not the Diablo Canyon facility 15 is currently in compliance, but that the allegation 16 you make that they are allegedly not able to manage 17 current compliance erodes their ability to show that 18 they will be able to manage aging in the future?
19 MS. CURRAN: Yes.
20 JUDGE KARLIN: Okay.
21 JUDGE ABRAMSON: Alex, let me -- let me 22 just pick this up for a second.
23 JUDGE KARLIN: Sure.
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51 1 aspect, not on anything else? Your concern here is 2 that they don't have the ability to manage this?
3 You're not concerned about the detail. Your focus is 4 on their management? Is that correct?
5 MS. CURRAN: Right. Right. And one of 6 the arguments is, well, management doesn't age.
7 Right? So if management doesn't age, then -- well, 8 some of us managers age -- the organization doesn't 9 age, so it's outside the scope. I think that reading 10 of the Regulation would just basically leave the term 11 out of the Regulation because --
12 JUDGE ABRAMSON: I understand.
13 MS. CURRAN: Yeah.
14 JUDGE TRIKOUROS: I'm looking for a formal 15 connection that doesn't require as much interpretation 16 of the word "manage" in the Regulation as some people 17 might. So if I think of the Reactor Oversight Program 18 and its interrelationship with the programs in the 19 plant -- and I'm going to talk more about programs in 20 the plant in a bit -- but I would look at the License 21 Renewal Program as being a program -- think of it as 22 a circle that the plant has to deal with. I think of 23 the Reactor Oversight Program as a circle that the NRC 24 has to deal with. I'm looking for an overlap between 25 those two.
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52 1 We're hearing from the Staff and the 2 Applicant that there is no overlap. But when I look 3 at the GALL Report, there are ten elements that are 4 identified in that report. And a number of them --
5 for example, Programmatic Element Number 7 is 6 corrective action, which is a -- sort of an overlap 7 program, if you will. It's sort of a management idea.
8 In fact, it is specifically a program at the plant 9 called the Corrective Action Program.
10 Programmatic Element -- or Element 10 is 11 operating experience, where they're looking for the 12 implementation of operating experience within License 13 Renewal Program.
14 Number 9 is administrative controls. So 15 there are management elements in the license renewal 16 that overlap, if you will, with the Reactor Oversight 17 Program.
18 Do you see that as a formal connection or 19 do you still -- do you really believe that the 20 reliance should be on the definition of the word 21 "manage" within the Regulation?
22 I'm looking for help in understanding if 23 there's a formal overlap that isn't covered?
24 (Pause..)
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53 1 could find a quote. So, for instance, in the Turkey 2 Point case, which is CLR-01-17, the Commission talks 3 about its concern -- it's on page eight -- that "Left 4 unmitigated, the effect of aging can overstretch 5 equipment, unacceptably reduce safety margins, and 6 lead to the loss of required plant functions, 7 including the capability to shut down the reactor and 8 maintain it in a shutdown condition."
9 So the Commission was expreUsing concern 10 that if -- if these peculiar effects of aging, which 11 is the focus of the license renewal rule, if they're 12 not properly attended to, that this could lead to an 13 accident or some other unacceptable condition.
14 So then the question is: If in the 15 current license term there is activity that provides 16 evidence that some safety function related to aging 17 that's -- you know, corrosion or something like that, 18 may be left unmitigated, is that the proper subject of 19 a contention? And we would say the Commission's 20 language allows that issue to be admitted.
21 Is that helpful, Judge Trikouros?
22 JUDGE TRIKOUROS: Yes. It is helpful.
23 But, again, I'm still looking for that formal 24 understanding of whether there's reactor oversight 25 built into the License Renewal Program, and I'm going NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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54 1 to be asking the same question to each of the other 2 parties as well, so you might have a chance to comment 3 on it later, but I just see the GALL Report as being 4 the overlap connection.
5 MS. CURRAN: Well, you know, over and over 6 if you look at the Turkey Point case, if you look at 7 the preamble to the 1996 rule, the Commission keeps 8 stressing that while there's a lot of things that 9 happen in the license r6newal term that are just like 10 everything that happens in the current term, there's 11 other things that are different because equipment 12 ages.
13 And when they give examples of the 14 distinctions -- the Commissioners give examples of the 15 distinctions that they make -- they always give 16 examples of programs that don't involve aging 17 equipment.
18 For instance, in CFR -- where they're 19 trying to give an example of how -- well, the current 20 licensing basis isn't relevant to the license renewal 21 term, they always give an example of something like, 22 Oh, there are ways not related, like emergency 23 planning. Emergency planning doesn't age. So, you 24 know, that's a really clear one --
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55 1 again, Ms. Curran, just for a second. So your focus 2 is on the management aspect. So we -- do you accept 3 the idea that they -- that the program might -- the 4 program would be adequate but that you're concerned 5 about how they implement the program --
6 MS. CURRAN: Yes.
7 JUDGE ABRAMSON: -- or follow up the 8 program?
9 14S. CURRAN: Yes.
10 JUDGE ABRAMSON: And if that's the case, 11 then how would you distinguish your proposed 12 contention/admission from the line of cases that says 13 where you challenge management, it's a.bad actor kind 14 of claim and you have to show a link between the 15 current management and the individuals in current 16 management and individuals who are going to be 17 carrying out this management of this aging management 18 program in the future during a license renewal term?
19 Do you think that that needs to be distinguished or do 20 you just not -- haven't thought about it?
21 MS. CURRAN: Well, I -- we weren't 22 contemplating challenging the behavior of individuals 23 because it seems -- well, the -- we distinguish 24 between the program, which is a written thing, like 25 this is instructions for how you do it, and the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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56 1 execution. Where a company has repeated problems with 2 the execution, perhaps that's a problem with the 3 program. I'm not sure what it is. At this point, we 4 see the pattern. Perhaps it's a problem with the 5 description of the program or some instruction in the 6 program that's overlooked. Perhaps it's a problem 7 with training. Perhaps -- I don't know what causes 8 this. It just keeps repeating itself. And that is --
9 that is the question. If it's repeating itself now 10 under these circumstances, will it not repeat itself 11 under more -- under the greater duress of the license 12 renewal term?
13 JUDGE KARLIN: Maybe I can follow up on 14 that a little bit. I mean, as I understand your point 15 -- I'm going to ask the same question of PG&E and the 16 Staff -- the aging -- the Regulations never mention 17 the word "aging management program." The Regulations 18 never mention the word "aging management plan." The 19 Regulations just simply say that they have to 20 demonstrate -- "demonstrate that the effects of aging 21 will be adequately managed." Okay, will be adequately 22 managed, that the company will adequately manage 23 aging.
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57 1 meets everything that people should do and slap it on 2 the table and say that -- I have thus demonstrated I 3 will adequately manage this issue, is that sufficient?
4 Is a piece of paper sufficient, or is there more to 5 it? I think I hear you saying a piece of paper needs 6 to be right, but you also have to convince the NRC 7 that indeed you will implement that and your 8 management will implement that competently and 9 properly. Is that your point?
10 MS. CURRAN: It's actually just a little 11 bit different because, for instance, If this were an 12 initial operating license case and PG&E was applying 13 for a license for the first time, it wouldn't be 14 possible to raise this contention.
15 JUDGE KARLIN: Right. I understand.
16 MS. CURRAN: Given the written plan and 17 say, This is my plan and that's probably all anybody 18 could do with it is say, We're going to review this 19 plan for what else have we got?
20 And here in this particular case, because 21 this is a renewal of the license that's been in effect 22 for some years, we have evidence that there are 23 problems with the implementation of an existing plan 24 for maintaining existing equipment.
25 JUDGE KARLIN: Right.
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58 1 MS. CURRAN: That -- and that it is the 2 same organization, nothing different about the 3 organization that's going to be applied to this next 4 set of problems which is different.
5 JUDGE KARLIN: Okay.
6 JUDGE TRIKOUROS: Those inspection reports 7 that you chose -- chose them well -- but maybe not for 8 the reasons that you originally -- that you were 9 thinking. But they bring out a concern that I'd like 10 to get resolved here, which is the -- and how that 11 concern has to be dealt with in terms of license 12 renewal.
13 If you -- if you think of all the programs 14 in the plant -- and I said I was going to talk more 15 about programs and now I'm going to -- but if you 16 think of all the programs in the plant as a series of, 17 you know, vertical processes, then the design basis 18 implementation that the plant has to do or that -- and 19 I differentiate that from the current licensing basis 20 where I would say the design basis is a subset of the 21 current licensing basis -- the design basis 22 implementation is a horizontal process that cuts 23 across all of those vertical programs.
24 Very common in the nuclear industry for 25 the vertical programs to be done exceptionally well.
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59 1 What is not common is the horizontal program of how 2 the design basis interrelates to all of thos6.
3 Now, looking at those inspection reports, 4 it's very clear that the problem appears to be in this 5 design basis implementation, this horizontal program.
6 JUDGE ABRAMSON: Clear to you.
7 JUDGE TRIKOUROS: Well, yeah. It appears 8 to me. Now, the -- I was reading through the annual 9 assessment letter -- this is the 2010 -- this is the 10 2009 assessment written in March of 2010 -- and it 11 talks about how well the plant actually performs.
12 JUDGE KARLIN: Could you identify --
13 that's a letter from --
14 JUDGE TRIKOUROS: This is a Marc 3rd, 2010 15 letter --
16 JUDGE KARLIN: Letter from --
17 JUDGE TRIKOUROS: -- letter from John T.
18 Conway --
19 JUDGE KARLIN: That's to John T. --
20 JUDGE TRIKOUROS: To John T. Conway -- I'm 21 sorry -- from --
22 JUDGE KARLIN: The NRC.
23 JUDGE TRIKOUROS: Yeah, from Dwight 24 Chamberlain.
25 JUDGE KARLIN: Of the NRC.
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60 1 JUDGE TRIKOUROS: Of the NRC.
2 MS. CURRAN: If I -- and you're referring 3 to a letter that's not mentioned in the contention; 4 right?
5 JUDGE TRIKOUROS: Yeah. That's right.
6 MS. CURRAN: Okay.
7 JUDGE TRIKOUROS: And -- but it is the 8 annual assessment letter and it relates to the 9 inspection reports that we're talking about.
10 And it refers to cross-cutting problems.
11 So the problems that you identified in the inspection 12 reports do seem to come out in the annual assessment 13 as well and they're referred to -- it's referred to as 14 a cross-cutting problem.
15 So I guess the question that I have is why 16 is that not then covered under the Reactor Oversight 17 Program, the normal Reactor Oversight Program? They 18 recognize the problem. They've known about it for two 19 years. They've identified findings along those lines.
20 Why would that be something that should be considered 21 within the license renewal?
22 MS. CURRAN: Why should it be not 23 considered in licensing -- why isn't it just part of 24 the --
25 JUDGE TRIKOUROS: Right.
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61 1 MS. CURRAN: -- current licensing basis; 2 is that what you're asking?
3 JUDGE TRIKOUROS: Right. And let's assume 4 that this problem continues into next year and the 5 year after, possibly all the way through to the day 6 that the plant would actually operate under the 7 license renewal. Why would that not be part of the 8 Reactor Oversight Program, the normal Reactor 9 Oversight Program that -- that looks at all of these 10 different things?
11 MS. CURRAN: Well, this problem they have 12 is applicable to things in the current licensing 13 basis. We don't dispute that. But then the question 14 is if the Commission says over and over again in its 15 decisions and the preamble to the license renewal 16 rule, We're really concerned here about programs for 17 managing the effects of aging; right? That's what 18 they say. It's different. It's different partly 19 because these -- sometimes these things are hard to 20 find, the problems are hard to find, they're hidden, 21 it's in passive equipment, you know, deep in the 22 plumbing and the pipes. So here we've got an 23 organization that has trouble finding these and 24 resolving problems that are easier to find.
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62 1 they've got trouble with the easier things, then we're 2 concerned they're not going to be able to manage the 3 harder things that have to do with aging management 4 and it doesn't matter what your program looks like on 5 paper if the inspectors are saying, We see an adverse 6 trend. This keeps happening to you. Why? That's 7 what we're pointing out.
8 And we -- certainly this is applicable in 9 the current licensing basis. We're not disputing 10 that. But we're saying it has unique and different 11 importance f-or the license renewal term because if 12 these kind of problems come up in the context of the 13 additional demands of a license renewal program, then 14 that's going to create a safety problem.
15 JUDGE TRIKOUROS: The problem I'm having 16 is -- that I'd like to understand further and, again, 17 we're going to be debating this with the other parties 18 as well -- is that the plant could have a perfect 19 operating history up until 2024 when the license 20 renewal period begins. And in 2030, this problem 21 could arise and has to be dealt with under the Reactor 22 Oversight Program. Why is that different in the 23 period before 2024?
24 Go ahead.
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63 1 Mothers for Peace's perspective in the sense that once 2 the license renewal permit is issued, then any concern 3 that the Mothers for Peace or anyone else may have 4 with the operation of the plant under the license 5 renewal term becomes an enforcement matter in which 6 resolution of that concern is a purely discretionary 7 matter.
8 Now, while you are reviewing this 9 application, PG&E has the burden of proVing that it 10 satisfies the license renewal regulations. And so we 11 can come to you, the licensing board, and say, We ask 12 that you force PG&E to address this issue before you 13 will approve the issuance Of a permit, so it's a legal 14 difference in terms of what's required.
15 JUDGE KARLIN: Okay.
16 JUDGE TRIKOUROS: I'm not finished but we 17 could end it and pursue this later.
18 JUDGE KARLIN: I think that might be 19 useful. You'll have another shot at it or, you know, 20 another opportunity when we get to rebuttal. Perhaps 21 we should turn to Mr. Repka and PG&E for the moment.
22 MS. CURRAN: Okay.
23 JUDGE KARLIN: And ask some of these 24 questions of them. Mr. Repka.
25 MR. REPKA: Okay. Thank you.
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64 1 JUDGE KARLIN: Good. I would like to 2 start with a question about the inspection reports.
3 The Petitioner uses -- references three inspection 4 reports that are referred to as IRRs. These are 5 inspections that have been done by the NRC of the 6 Diablo Canyon facility. They seem relatively 7 thorough. These are normal I think inspections that 8 are done and I would like to refer to the February 6, 9 2009 IRR-0805 and it covers the year 2008 or part of 10 the year 2008.
11 As the Petitioners point out, on page 24 12 there's an adverse -- "adverse trend in problem 13 evaluation." "This adverse trend began during the 14 fourth quarter of 2007 and continued to the fourth 15 quarter of 2008. Examples include ... " and then they 16 go down and list I think it's like 13 violations --
17 and that's their word, not mine -- the NRC Staff's 18 word that PG&E Diablo Canyon was in violation.
19 They then recite a number of other 20 violations.
21 The other two reports, the IRR-0903 2009 22 inspection, they list 13 violations and again find an 23 adverse trend.
24 Same thing for the third report.
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65 1 with the -- if the company is not able to manage 2 current compliance, does this erode our confidence and 3 reasonable assurance that the company will be able to 4 manage aging?
5 MR. REPKA: No.
6 JUDGE KARLIN: Okay. And please explain.
7 MR. REPKA: The inspection findings 8 obviously are what they are. They are being addressed 9 consistent with the process. I think it's important 10 to recognize that all of the findings are rolled up 11 into various -- the three reports that are relied upon 12 by the Mothers for Peace into a series of five, six, 13 four I think it is between the three inspection 14 reports. It's not the large number that you're i5 quoting. But all of the rollup findings that are 16 actually cited as violations are treated as either 17 green findings or severity level 4 violations, all of 18 which are relatively minor matters, and all are 19 treated as non-cited violations.
20 And beyond what that says about the 21 overall significance of it, the important thing is to 22 be treated as a non-cited violation implies that there 23 are corrective actions that are underway. And I think 24 that that as a factual matter, that's an important 25 element. That's not the only element, but certainly NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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66 1 from a license renewal standpoint, the point is that 2 these are issues being addressed today by today's 3 regulatory process and it doesn't follow that in 2024 4 or 2026, whatever the beginning of the period of 5 extended operation is, that these violations, these 6 adverse trends, these whatever they are will continue 7 to exist because, in fact, they won't.
8 JUDGE KARLIN: Well, let me ask my 9 question that I asked of Ms. Curran. Let's say that 10 PG&E plops a perfect piece of paper on the table and 11 says, That's our aging management program. Is it 12 outside the scope of this proceeding or any contention 13 to ask whether or not the company has demonstrated it 14 will adequately implement or manage that program, or 15 we just look at the piece of paper?
16 MR. REPKA: Yes. I think it is outside 17 the scope to address --
18 JUDGE KARLIN: Then we just look at the 19 piece of paper?
20 MR. REPKA: You look at -- the finding for 21 license renewal is focused upon the scope of equipment 22 subject to aging management review, the results of the 23 aging management review, the aging management programs 24 that are in place, and the focus is to determine 25 whether all the equipment that's in scope has been NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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67 1 addressed.
2 JUDGE KARLIN: Well, let me ask, if I may.
3 That's the topic of the management; i.e., you're 4 managing aging. But the question is with the adequacy 5 of the management. The adequacy of the management is 6 irrelevant to the adequacy of an aging management 7 program?
8 MR. REPKA: The implementation of those 9 programs down the road is beyond the scope of license 10 renewal. And to the extent that the Mothers for Peace 11 and you're looking at 10 CFR 54.29 and 54.21 which 12 talk about the standards for issuance of a renewed 13 license.
14 I think it's also important to look at 10 15 CFR 54.30, which is matters not subject to a renewal 16 review and, in particular, it talks about the review 17 is required to show that there are -- if there were 18 some finding that there's not reasonable assurance 19 during the current licensing term, the license 20 activities will be conducted in accordance with the 21 CLB. 54.30(b) then states that, "The licensee's 22 compliance with the obligation under paragraph (a) to 23 take measures under its current license is not within 24 the scope of the license renewal review."
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68 1 that because I think that is an issue. Compliance of 2 54.30(b), "The licensee's compliance with the current 3 licensing basis to take measures under its current 4 license is not within the scope." And I agree.
5 Obviously that's a reg. We follow that. That doesn't 6 seem to be what they're saying. They are not arguing 7 about whether or not the company is in compliance with 8 the. current licensing basis or raising that as a 9 contention. Their contention is the alleged failure 10 of the company to be in compliance with the current 11 licensing basis undermines its ability to demonstrate 12 that it will adequately manage in the future another 13 topic; i.e., aging.
14 MR. REPKA: But that argument 15 fundamentally is premised on a current day issue which 16 is precisely of the kind contemplated by 54.30(a).
17 JUDGE KARLIN: -But let me then ask about 18 this GALL which is the Generic Aging Lessons Learned 19 Report, NUREG 1801, Volume 1, Rev. 1, September 2005.
20 As Judge Trikouros has pointed out, this is a -- this 21 is a document that the Staff attempts to give its 22 analysis of lessons learned with regard to management 23 of aging and on page two of that document, ten program 24 elements in each aging management program. There are 25 ten program elements that must be there. Number NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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69 1 seven, corrective actions. Number eight, confirmation 2 process. Number nine, administrative controls. And 3 on number ten, operating experience.
4 Doesn't the alleged noncompliance towards 5 the current operating experience provide some indicia 6 that supports their allegation that if you can't 7 manage the current licensing basis, you haven't 8 demonstrated you're going to be able to manage aging?
9 MR. REPKA: I think, again, that doesn't 10 follow. I think that all of those programs are 11 important programs that are part of operation of the 12 plant today and in the future will always be 13 important. I can't deny that. But implementation 14 today, just as is implementation in the future, is an 15 issue for the reactor oversight process and other 16 regulatory processes.
17 I think if you try to draw a inference 18 based upon an issue today, number one, it wouldn't be 19 an accurate inference because corrective actions will 20 necessarily be mandated by the existing oversight 21 process so there's no -- should be no inference that 22 it will continue to exist into the future. And --
23 JUDGE KARLIN: Well, let me ask on that.
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70 1 that the corrective actions aren't working?
2 MR. REPKA: That is -- would be true for 3 today and that's an issue for current --
4 JUDGE KARLIN: And isn't today all we have 5 to go on as to whether you've adequately demonstrated 6 what you're going to do in the future is proper?
7 MR. REPKA: Well, again, the focus of 8 license renewal is not on the implementation of the 9 program in the future. The regulatory process 10 provides a process to assure that the current 11 licensing basis, which includes the Corrective Action 12 Program, the Operating Experience Review Program, that 13 those will be implemented in the future. That's the 14 second principle of license renewal, that the reactor 15 oversight processes and the other regulatory processes 16 address those.
17 So, again, the focus for license renewal 18 is on the scope of equipment, the scope of the aging 19 management review, the scope of the program itself, 20 and none of these inspection reports say anything 21 about that. Nothing in the contentions say anything 22 about that.
23 JUDGE KARLIN: Let me ask this. Then on 24 page 13 of your brief, if you would turn to that --
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71 1 a second.
2 JUDGE KARLIN: Page 13 -- I'm sorry --
3 your answer.
4 MR. REPKA: Okay. I'm there.
5 JUDGE KARLIN: The first full paragraph, 6 I guess it's the second sentence, you state, 7 "Unsupported speculation that PG&E will contravene the 8 NRC rules at some point in the future is not an 9 adequate basis for a contention."
10 I find that real surprising. "Unsupported 11 speculation will contravene at some point in the 12 future." Don't the three inspection reports indicate 13 that PG&E is contravening the rules in the current 14 last three years in a row?
15 MR. REPKA: I don't --
16 JUDGE KARLIN: Don't you think that 17 provides us some basis to look to the future and say, 18 Well, if you've currently been in violation of the 19 three years, you know, having a problem, that's some 20 indicia that you might have a problem in the future 21 with this other topic; i.e., aging.
22 MR. REPKA: No, because the current 23 regulatory process provides the means to assure that 24 appropriate corrective actions are taken.
25 JUDGE KARLIN: No, but I want to ask you:
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72 1 Do you really believe that it's unsupported 2 speculation that you will contravene in the future 3 when there's three inspection reports in a row that 4 you are contravening it in the present?
5 MR. REPKA: Yes, I do believe that.
6 JUDGE KARLIN: That's unsupported? Okay.
7 MR. REPKA: Because there is a process in 8 place to assure that corrective actions are taken.
9 JUDGE KARLIN: That's not the issue-10 whether there's a process to take corrective action.
11 The issue. is whether the company is, at least by the 12 NRC staff, said to be in violation numerous times, 13 right now.
14 MR. REPKA: Well, I think that it's 15 unsupported because you're making a leap into the 16 future and assuming that it will continue to exist 17 through the current operating license term as well as 18 into the future, into the extended operating license 19 term, and that's simply unsupported.
20 And that's precisely why implementation is 21 beyond the scope of this review because how can we 22 have a hearing today about what might exist in 2024 or 23 2030 or 2036?
24 JUDGE KARLIN: But isn't a person's past 25 performance the best indicator we can have as to what NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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73 1 their future performance is going to be?
2 MR. REPKA: Well, the past is --
3 JUDGE KARLIN: I mean, that's one of the 4 main --
5 MR. REPKA: never an indicator of 6 future results. I mean, I can accept that as a 7 premise. And I think that that's why we have ongoing 8 regulatory processes.
9 The licensing review andthe inspection 10 and oversight functions are two very different
- 11. creatures of the regulatory process, and so we're 12 focused here on the licensing review which is 13 necessarily focused on the programs, the scope, the 14 sufficiency, and adequacy of the programs. And I 15 think there's, you know, a substantial number of 16 Commission cases that support that that we cite in our 17 brief talking about issues related to the quality 18 assurance and issues related to human performance, and 19 the Commissions and its boards have ruled that those 20 are outside the scope of license renewal for the very 21 same reason -- that the regulatory process assures 22 that those issues are addressed today.
23 JUDGE KARLIN: But doesn't the GALL itself 24 talk about corrective actions as being part of aging 25 management and confirmation -- this is the guidance NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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74 1 that the Staff has issued.
2 MR. REPKA: Yes.
3 JUDGE KARLIN: Now, I'm not saying we have 4 to follow it.
5 MR. REPKA: Yes.
6 JUDGE KARLIN: But --
7 MR. REPKA: No. I think there's many 8 programs in a nuclear power plant that exist today and 9 will continue to exist into the future and they're, 10 therefore, important to the period of renewed 11 operation. That doesn't bring them within the scope 12 of a hearing based upon current performance.
13 Yes, those programs will exist andwill be 14 relied upon in the future, no doubt about it. But the 15 oversight of that process is not the focus of a 16 license renewal licensing review. That's the focus of 17 inspection and enforcement.
18 JUDGE TRIKOUROS: So you don't see any 19 overlap at all with respect to these various program 20 elements that we were talking about earlier in the 21 GALL Report -- the corrective action requirements, the 22 operating experience, the administrative controls, and 23 confirmation process. These are all dealing with the 24 things we're talking about here and they're 25 specifically required as part of the license renewal NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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75 1 process.
2 JUDGE ABRAMSON: As part of the plant.
3 MR. REPKA: Those programs are part of the 4 plant. I don't deny that. Those are important 5 programs that have to be implemented. The NRC will 6 monitor the implementation and the process will be --
7 to the extent there's adverse trends, they'll be self-8 correcting. But, again, not an issue for the license 9 renewal review. And I think that's precisely what the 10 Commission's general principles are all about and 11 precisely what 10 CFR 54.30 is all about.
12 So corrective actions to address those 13 kind of today problems will be -- are not within the 14 scope of license renewal.
15 JUDGE ABRAMSON: Judge Trikouros, let me 16 ask you because I don't have that document in front of 17 me that you have. You're reading from the GALL 18 Report?
19 JUDGE TRIKOUROS: Right.
20 JUDGE ABRAMSON: Are those elements you're 21 listing, are they listed in the GALL Report as 22 elements of a plan?
23 JUDGE TRIKOUROS: Aging management.
24 JUDGE ABRAMSON: If I understand -- okay.
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76 1 the aging management plan. What's being challenged 2 here, Mr. Repka, unless I misunderstand it, is in 3 order for the Agency to have reasonable assurances 4 that the plan itself will be adequately implemented, 5 there has to be some indicia that the Applicant will 6 implement its perfect plan even if the plan addresses 7 all these things.
8 Would you just spend a second -- you said, 9 for example, there's a line of cases addressing 10 personnel actions, personnel -- and I assume what you 11 meant by that is the activities of individuals. What 12 seems to me is being challenged here is whether or not 13 the individuals who are charged with actual 14 implementation of this plan will do so or whether or 15 not there's a commitment of the Applicant, whether or 16 not the commitment of the Applicant to implement this 17 plan is sufficient to give the Agency adequate 18 assurances. That seems to you to be what the 19 challenge is?
20 MR. REPKA: Well, I think that is what the 21 challenge is and --
22 JUDGE ABRAMSON: Is there a line of cases 23 that addresses such assertions?
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77 1 program would be an example of that. If I could find 2 the citation.
3 JUDGE KARLIN: Is that the Oyster Creek, 4 the Licensing Board decision?
5 MR. REPKA: I believe so.
6 JUDGE KARLIN: Do you have any Commission 7 decision on that?
8 MR. REPKA: I don't believe so but there 9 is a Commission decision in Dominion on Millstone that 10 talks about operational issues are addressed by 11 ongoing oversight review and enforcement. That is a 12 Commission decision. I put corrective action program 13 into the operational issue. It's not unique to the 14 period of extended operation.
15 JUDGE ABRAMSON: How would you -- is there 16 a proper analogy here between this assertion and the 17 line of cases that addresses -- that amounts to bad 18 actor? This management's demonstrated we can't do it 19 and the requirements, I believe in the Commission line 20 of cases, says unless you show it through the 21 individuals, that doesn't get you there.
22 MR. REPKA: Yeah. The line of cases 23 you're referring to -- and I think it's correct to 24 bring it up -- is in a technical qualifications review 25 for initial licensing and for license amendments and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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78 1 other things, the issue of character and competence 2 have come up, and it's not just character. It's also 3 competence. And those issues, the standard I think is 4 very, very high as to when it would be an issue 5 litigable in a licensing proceeding; in other words, 6 the Commission has said things along the lines of, You 7 can't presume that the licensee won't meet the 8 Regulations. It won't meet its license and technical 9 specifications.
10 JUDGE KARLIN: Well, let me ask on that.
11 I mean, isn't that what I was just talking about? You 12 can't presume that the licensee will violate, the 13 applicant will violate. But we don't have to presume 14 that here. Doesn't the three IRRs show that Applicant 15 is currently in violation? We don't have to presume 16 that.
17 MR. REPKA: Again, the process assures 18 that corrective actions are taken and --
19 JUDGE KARLIN: Well, that's not the issue.
20 It's not an issue of whether it's going to be 21 corrected; the issue is we're not presuming they're 22 going to be in violation because they're alleging you 23 are in violation.
24 MR. REPKA: You are presuming because 25 you're presuming a future conduct. The current NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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79 1 conduct is addressed today. You're making an 2 inference and drawing a presumption that that will --
3 it's essentially some different conduct will occur in 4 the future that's similar to what's happening today, 5 and that is a presumption.
6 JUDGE ABRAMSON: Mr. Repka, in the line of 7 cases we were discussing a minute ago before Judge 8 Karlin wanted to follow up, and I want to pick this 9 up, --
10 JUDGE KARLIN: Sure.
11 JUDGE ABRAMSON: -- those lines of cases, 12 if I recall correctly -- and I think I was involved in 13 a couple of them -- those lines of cases essentially 14 assert here's an action that the applicant did wrong 15 and here's another incident that demonstrates the 16 applicant did wrong. And the assertion by the parties 17 trying to raise the question was because they did 18 those things wrong, they'll do it wrong in the future.
19 And as I recall the Commission rulings and the Board 20 rulings, they were to get to that point, that's a 21 character -- that's a character attack. You've got to 22 show me that it's the individuals.
23 Am I recalling those incorrectly?
24 MR. REPKA: Yes. The -- an example I can 25 bring up based on my own experience was a case in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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80 1 late -- mid to late 1990s at Millstone related to a 2 spent fuel storage and the contention was precisely 3 that, that the licensee had violated NRC requirements; 4 in fact, had pled guilty to some criminal violations 5 related to EPA requirements as well as NRC 6 requirements, fairly -- conduct much more egregious 7 than what. we're talking about here today. And the 8 contention was that the applicant wouldn't be able to 9 implement its administrative controls, wouldn't be 10 able to implement its programs in the future, and the 11 Commission rejected that as a contention..
12 JUDGE ABRAMSON: Cause?
13 MR. REPKA: And I think that -- excuse me?
14 JUDGE ABRAMSON: Cause? Why was it --
15 MR. REPKA: Because, (a), you can't make 16 a presumption about future conduct based upon past 17 conduct and, number two, without some more specific 18 egregious conduct by specific individuals as you say 19 may have been part of it -- I don't remember the 20 details -- but -- but that's the point.
21 But I think even -- you don't even need to 22 reach that line of cases here because in license 23 renewal, the Commission's clear it's not looking at 24 the full scope of operational issues like it might be 25 looking at in initial licensing. And I don't -- if NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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81 1 you were to have a hearing on this issue, the hearing 2 would be about -- presumably about these present day 3 issues and whether sufficient corrective actions are 4 being taken and how this might affect the conduct of 5 the company in the future. I don't understand how you 6 could square that kind of hearing with 10 CFR 50.30(b) 7 which says that those kinds of issues for which 8 corrective actions are required today are beyond the 9 scope of license renewal.
10 JUDGE KARLIN: Let me follow up on that 11 and then Judge Trikouros I think has a few questions, 12 too, and we're not done. But I think there is a line 13 of cases where -- and I believe under the statute 14 would you agree in certain circumstances the 15 competency of the applicant is a statutory criterion 16 for getting a license?
17 MR. REPKA: I think that is -- there is a 18 line of cases and there is a requirement for initial 19 licensing.
20 JUDGE KARLIN: Yes.
21 MR. REPKA: That's not a requirement for 22 license renewal.
23 JUDGE KARLIN: Right. And this is not the 24 situation, as I understand it here, which is I think 25 it's a switch of the burden of proof or persuasion NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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82 1 perhaps. This is not a -- you I believe as the 2 Applicant, you have to demonstrate that you will 3 adequately manage the effects of aging during the 4 period of extended operation, so that is your burden 5 and you must show a reasonable assurance that you will 6 do so.
7 And as I understand it, that -- in this 8 case, there's an allegation -- I mean, not to get to 9 the merits of whether that's valid or not -- that 10 based on the inspection reports, which they allege 11 show you were not adequately managing or PG&E is not 12 adequately managing current compliance, that this 13 raises a question about whether the company will 14 adequately manage aging.
15 And I understand there are corrective 16 actions to deal with current compliance, but, again, 17 I think -- isn't the burden on the Applicant to 18 demonstrate you will adequately manage aging in the 19 period of extended operation?
20 MR. REPKA: Yes.
21 JUDGE KARLIN: And do you do that simply 22 by plopping a piece of paper on the table and saying, 23 Here's our demonstration? Or is there any 24 implementation component of that?
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83 1 plopping a piece of paper on a table. It's an 2 exhaustive review of the plant, the equipment, the 3 aging mechanisms, the aging management programs, and 4 that's what's presented for license renewal and that's 5 what's in the scope of review.
6 The future implementation of the aging 7 management programs, many of which would call for 8 inspections and surveillances far into the future, the 9 implementation of that is the subject of ohgoing 10 regulatory oversight inspection processes and it's not 11 part. of the licensing review.
12 JUDGE KARLIN: Now, I agree with I think 13 what Judge Abramson was raising a question here. Now, 14 if an intervenor comes in and says, Look, we found one 15 alleged violation of this company over the last 20 16 years and, therefore, we have grave doubts about their 17 ability to manage aging in the future, that's one 18 thing. On the other hand, if the Petitioner comes in 19 and says, There's a pattern of serious noncompliance 20 and, therefore, they have a problem with aging 21 management in the future, is there a line that can 22 distinguish between -- you know, without getting into 23 the merits of the contention, of course, when such a 24 contention might be admissible and it might not?
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84 1 no more than we have a history -- of the contention 2 asserted, a history of current violations or current 3 regulatory issues, I don't think there's a line. I 4 don't think that's in scope. And I think that, you 5 know, even if there were a line, I think a number of 6 green findings and severity level 4 non-cited 7 violations doesn't cross that line.
8 JUDGE KARLIN: Right. Now, the Staff says 9 -- and I'm going to ask them this question, and this 10 is a little preview for the Staff -- is that on page
- 11. 22, given the quantity and magnitude of these 12 inspection findings, they are not of the type of 13 violations that can cause the NRC to be unable to find 14 reasonable assurance of 54.29. Given the type and 15 quantity, these are not the type -- isn't that the 16 merits? How do we know whether the type and -- you 17 say, well, these are green findings. These are white 18 findings. These are purple findings. I don't know 19 what findings they are. But how do we distinguish 20 between an admissible contention and a non-admissible 21 contention without getting to the merits?
22 MR. REPKA: Okay. I think our arguments 23 are twofold. Number one, it's a scope argument which 24 is an admissibility argument, and I would -- to the 25 extent that Staff is suggesting that there is some NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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85 1 type or some kind that would cause a problem, no, I 2 disagree. So it's a scope argument.
3 But to the extent that the Staff's 4 argument is the same as the argument I just made, that 5 these findings aren't sufficient to raise that -- a
.6 genuine dispute on that point, that's a basis 7 argument. That's a question of whether or not 8 there's --
9 JUDGE KARLIN. Well, wait a second. What 10 is basis? 2.309(f) (1) (ii) says adequate basis -- says 11 provide a brief explanation of the basis. You're not 12 talking about that, are you?
13 MR. REPKA: Well, a basis that satisfies 14 the ultimate standard for admissibility which is that 15 there has to be a showing of genuine dispute on a 16 material issue of fact.
17 JUDGE KARLIN: So you're talking about 18 (vi), genuine dispute?
19 MR. REPKA: Yes.
20 JUDGE KARLIN: Because the word "basis" 21 only appears in (ii) and that's not what you're 22 talking about.
23 MR. REPKA: Right. Genuine dispute.
24 JUDGE KARLIN: "Provide sufficient 25 information there's a genuine dispute on a material NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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86 1 issue."
2 MR. REPKA: Correct.
3 JUDGE KARLIN: Okay.
4 MR. REPKA: (A) It's not sufficient and, 5 (b), it's not a material issue.
6 JUDGE KARLIN: So you're focusing on 7 materiality, not sufficiency.
8 MR. REPKA: That would be the scope 9 argument. Yes.
10 JUDGE KARLIN: Okay.
11 MR. REPKA: But sufficiency --
12 JUDGE KARLIN: I think I understand.
13 MR. REPKA: -- is a separate argument.
14 JUDGE TRIKOUROS: The inspection reports 15 deal with 2008 and 2009. Is there any indication that 16 the trend is continuing in 2010?
17 MR. REPKA: I don't have that information.
18 I know that there are -- is regulatory dialogue going 19 on and specific corrective actions are being taken, 20 but as to current metrics, I can't answer that 21 question.
22 JUDGE TRIKOUROS: You don't know of any 23 inspection findings that would -- that would indicate 24 the trend is continuing?
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87 1 correct reservation. I can't say that there aren't 2 any.
3 JUDGE TRIKOUROS: The -- this design basis 4 question, I'd like to explore that with you if I 5 could.
6 MR. REPKA: Okay.
7 JUDGE KARLIN: The findings indicate --
8 the assessments of Diablo Canyon indicate that you run 9 your programs well. However, there's a trend that 10 indicates that you do not understand -- either you do 11 not understand design basis properly or you did not 12 understand how to implement the design basis when 13 something comes up with respect to some piece of 14 equipment or something such as an analysis in the 15 design basis.
16 A case in point was a steam generator tube 17 rupture where the operator action which was 18 licensed -- the plant license of 12 minutes operator 19 actions was then reduced to 5.24 minutes which is 20 amazing. Talk about operator action down to 24/100s 21 of a minute and -- which is required to be reported to 22 the NRC was not reported to the NRC. It could have 23 been 300 milliseconds for all I know. It just simply 24 wasn't -- was just done and not reported as it should 25 have been.
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88 1 That's indicative of something that is 2 perhaps more difficult to fix, perhaps. I'm asking 3 you if given the GALL requirements and given the 4 nature of these inspection findings, that you still 5 see no overlap whatsoever?
6 MR. REPKA: No. I don't think I ever said 7 there was no overlap. I think all of these programs 8 undercut everything at the plant and relate to 9 everything, including license renewal, so I've never 10 said that there's no overlap. But what I have said is 11 that implementation of those programs is not a license 12 renewal licensing issue.
13 The trend related to design and licensing 14 basis that you point out is certainly something that 15 PG&E management is very aware of, that NRC staff has 16 made very clear to PG&E where the NRC is on that 17 issue, and certainly actions are being taken or are 18 being planned and discussed with the regulator, and 19 that's the regulatory oversight process where that 20 issue is resolved. Again, it's not an issue that's 21 unique to license renewal. It's not an issue unique 22 to age-related degradation. It simply isn't within 23 the scope of the very specific license renewal review 24 required by 10 CFR Part 54.
25 JUDGE TRIKOUROS: So the egregiousness of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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89 1 a problem would still be -- make it -- would still be 2 independent of the license renewal process. Your 3 argument is that eventually you'd be shut down by the 4 Nuclear Regulatory Commission if things got bad?
5 MR. REPKA: Correct. Correct. And, you 6 know, if the presumption is the corrective actions 7 aren't sufficient or insufficient to assure safe 8 operations today, that action has to be taken today.
9 And so, you know, that's precisely our point, is 10 that --
11 JUDGE TRIKOUROS: And the aging management 12 plan has to specify what corrective actions are going 13 to be taken in these cases; right? I mean --
14 MR. REPKA: For these particular 15 violations, yes.
16 JUDGE TRIKOUROS: Right. Well, when you 17 have a -- when your plan addresses aging of a specific 18 component, you're going to address not just how you're 19 going to examine it but what you're going to do to 20 correct the problem. That's the plan; right?
21 MR. REPKA: Yes. And corrective action 22 programs have measures to assure that the 23 effectiveness of the corrective actions are assessed 24 in the future. So it's an ongoing process every day.
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90 1 page 11, if you would turn to page 11 of your brief, 2 please, --
3 MR. REPKA: Certainly.
4 JUDGE KARLIN: -- which is your answer.
5 MR. REPKA: Okay.
6 JUDGE KARLIN: I don't know why I refer to 7 it as your brief. You give us a quote out of the 1991 8 Regulation -- Federal Register, actually -- and 9 happily you continue what I think is the key part of 10 it in your footnote, Footnote 5 I guess -- Footnote 4.
11 But let me -- this is what troubles me. I think this 12 is a key point. There's a general statement that, you 13 know, current licensing basis issues are not part of 14 an aging management program, but then it goes on to 15 say in the Federal Register, "Allegations that the 16 implementation of a licensee's proposed actions to 17 address aging related to degradation has or will cause 18 noncompliance with the current licensing basis during 19 the period of extended operation or that the failure 20 of the licensee to address age-related degradation in 21 a particular area has or will cause noncompliance 22 would be valid subjects for contentions."
23 Isn't that exactly what they're alleging 24 here? -- that the implementation is the problem and 25 that the doubts about the implementation are raised by NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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91 1 the -- what they allege current noncompliances that 2 show a management problem?
3 MR. REPKA: I think the allegations and 4 doubts addressed in that statement are more specific 5 than what we have here. They're more specific to 6 aging management programs, aging management plans 7 saying, Here's the plan we have. Oh, you're relying 8 upon a plan related to this equipment that operating 9 experience shows hasn't worked in the past to address 10 the age-related degradation. And that might be a 11 legitimate issue.
12 But I think that it's -- this is referring 13 to something more specific than what we're talking 14 about here, which is broad performance issues and 15 implementation of broad plans and programs in the 16 future.
17 JUDGE TRIKOUROS: Looking at page ten of 18 your -- of your answer, you make a statement that 19 you're referring to the inspection reports that the 20 Petitioners have cited and you say -- you say, "But 21 such modifications and design control failures do not 22 implicate age-related degradation. Instead, such 23 modifications implicate the current licensing basis 24 which, as discussed above, is outside the scope of the 25 license renewal review."
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92 1 But in fact, the entire structure of the 2 aging management program is to preserve the current 3 licensing basis in the 20-year extension period. So 4 I don't understand how -- I don't understand that 5 statement.
6 MR. REPKA: Well, I think the statement is 7 that the violations involve changes that were made 8 perhaps without. a 50.59 review or an adequate 50.59 9 review related to the current licensing basis. So 10 what we're talking about there is that these are --
11 these are violations related to the current.licensing 12 basis of the plant, changes, design -- configuration 13 management not being adequately maintained, for 14 example, nothing specific to an aging mechanism, the 15 scope of equipment subject to an aging management 16 program, nothing specific to aging.
17 And I think that's the point we're trying 18 to make and the distinction we're trying to make.
19 Again, it's a broad reference to CLB maintenance, but 20 CLB maintenance is something that's monitored by 21 ongoing oversight today as well as in the future.
22 And that's precisely the Commission's 23 second principle of license renewal where the 24 regulatory oversight programs and processes will 25 assure in the future that the CLB is maintained.
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93 1 JUDGE TRIKOUROS: But, in fact, aging --
2 aging monitoring is not something you're doing today, 3 so obviously anything that happens today couldn't be 4 associated with aging in the sense that it's not 5 something that you need to do.
6 MR. REPKA: I don't think that's really 7 true. I think what you -- in monitoring the plant 8 every day, you're looking at equipment performance and 9 reliability, you're conducting preventive maintenance 10 and corrective maintenance, you're monitoring and 11 trending through the corrective action programs how 12 equipment is performing. All of that is exactly 13 what's rolled up into the aging management reviews.
14 JUDGE TRIKOUROS: Right, but you have no 15 aging management program per se today and you're 16 having some problems with implementing the things 17 you're talking about right now.
18 MR. REPKA: Again, I don't think that's 19 necessarily true. I think many of. the aging 20 management programs being relied upon are programs 21 that exist today for equipment and will be continued 22 in the future. Others will be enhanced and others 23 will be new programs. But there are aging management 24 programs today and additional programs in the future, 25 recognizing of course that license renewal is focused NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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94 1 on a very specific set of long list structure systems 2 and components that are passive and are not monitored 3 by current day surveillance programs.
4 But plant performance and plant equipment 5 is addressed today.
6 JUDGE TRIKOUROS: But there is a 7 distinction I think between what you do today and what 8 you will do when the AMP is implemented. There will 9 be a level -- there will be a higher level associated 10 with aging than -- today it's maintenance really and 11 prevention of failures, not per se aging.
12 JUDGE KARLIN: I'm going to suggest that 13 we complete the questioning of Mr. Repka and PG&E at 14 this moment and then take a break because we've been 15 going basically two hours at this point. And as I 16 intimated-and I guess we haven't followed our own time 17 limits -- I'm sorry -- but I think this has been 18 helpful. So do we have any more questions of Mr.
19 Repka at this point?
20 No? Okay. Mr. Repka, thank you.
21 MR. REPKA: Thank you.
22 JUDGE KARLIN: We're going to take -- it 23 is -- I have it as about 10:30. We will take a ten-24 minute break and try to reconvene crisply at 10:40.
25 This proceeding now stands adjourned.
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95 1 (Recess from 10:28 a.m., until 10:42 a.m.)
2 JUDGE ABRAMSON: Our law clerk wouldn't 3 say it, so I will. Let's rock and roll. All right.
4 Please be seated. Somebody get Ms. Curran away from 5 an interview so she can start.
6 JUDGE KARLIN: Actually, we have the 7 Staff. I think the- Staff are up. So the licensing -
8 Atomic Safety and Licensing Board has now reconvened 9 and we are on the record.
10 Staff, would you please come up to the 11 podium.
12 MR. M. SMITH: Yes, Your Honor.
13 JUDGE KARLIN: Mr. Smith.
14 MR. M. SMITH: Judge Karlin.
15 JUDGE KARLIN: Yes. Thank you.
16 MR. M. SMITH: Judge Trikouros.
17 JUDGE KARLIN: Okay. You've heard a 18 number of the questions we asked. Let me ask you. On 19 page 22 of your brief, --
20 MR. M. SMITH: Yes, sir.
21 JUDGE KARLIN: -- you -- I will quote it 22 again. "Given the quantity and magnitude of these 23 inspection findings, they are not the type of 24 violations that can cause the NRC to be unable to find 25 a reasonable assurance."
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96 1 Isn't that the merits?
2 MR. M. SMITH: Yes, Your Honor. In that 3 section of our brief, we're arguing the alternative.
4 In the first part, we argue that the Commission was 5 outside of the scope. But in this portion, we're 6 arguing that even if it were within the scope of 7 license renewal, the types of violations that have 8 been alleged are simply not the types of violations 9 that can cause the Staff to be -- or the NRC to be 10 unable to find a reasonable assurance, which is the --
11 as the parties just pointed out, the touchstone for 12 license renewal, 54.29(a). We point out that in the 13 Staff's Reactor Oversight Program, the types of 14 violations that can cause the Staff to be unable to 15 find reasonable assurance are --
16 JUDGE KARLIN: Wait a second. Wait a 17 second.
18 MR. M. SMITH: Yes, Your Honor.
19 JUDGE KARLIN: In the Staff's Reactor 20 Oversight Program, the types of violations that will 21 be unable to provide the Staff to find reasonable 22 assurance of what? The Reactor Oversight Program 23 doesn't deal with aging management, does it?
24 MR. M. SMITH: No. It does not.
25 JUDGE KARLIN: Okay. So --
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97 1 MR. M. SMITH: But --
2 JUDGE KARLIN: Well reasonable assurance 3 that the aging management program demonstrates that 4 the aging management program will be adequate. Okay.
5 But go ahead.
6 MR. M. SMITH: Right.
7 JUDGE KARLIN: So you're talking about --
8 MR. M. SMITH: Our argument is that the 9 aging management program is adequate if it adequately 10 describes how the Applicant will manage the effects of 11 aging during the period of extended operations.
12 JUDGE KARLIN: Well, let me ask you this:
13 Are you saying that the aging management program is 14 adequate if it has a piece of paper that says 15 everything that needs to be said?
16 MR. M. SMITH: Yes.
17 JUDGE KARLIN: And that's all it takes?
18 MR. M. SMITH: That's our argument, Your 19 Honor, and I believe the Commission has held that in 20 the Oyster Creek, Pilgrim, and Vermont, Yankee, and 21 Indian Point --
22 JUDGE KARLIN: What about the 1991 Federal 23 Register that I was quoting that comes out of their 24 brief that says implementation is an issue as well?
25 Let's go to that.
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98 1 MR. M. SMITH: Yes, Your Honor.
2 JUDGE KARLIN: Don't you agree that 3 implementation of the program is relevant, not just 4 the adequacy of the piece of paper?
5 MR. M. SMITH: The -- the allegation reads 6 that, "Allegations of the implementation of a 7 licensee's proposed actions to address age-related 8 degradation has or will cause noncompliance to the 9 plant's current licensing basis during the period of 10 extended operation or that the failure of licensee to 11 address age-related degradation in a particular area 12 has or will cause such noncompliance during the period 13 of extended operations would be subject for a 14 contention."
15 JUDGE KARLIN: Would be valid subjects for 16 a contention. Yes.
17 MR. M. SMITH: Yes. That's correct.
18 JUDGE KARLIN: So scope-wise, isn't it 19 saying it would be within the scope?
20 MR. M. SMITH: We believe the focus of 21 this -- the proposed action is again based on the 22 proposed plan and not an actual implementation or 23 actual compliance with the terms of the aging 24 management program.
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99 1 contention is? They're saying that the proposed aging 2 management plan, a piece of paper, there are some 3 doubts about it because we are concerned that they 4 will not -- we allege that they will not adequately 5 implement that, they will not adequately manage. And 6 the basis for their allegation that the concern that 7 they will not adequately manage aging is that they 8 allege they're not adequately managing what they're 9 doing now. Isn't that exactly what the quote says is 10 within the scope of an aging management contention?
11 MR. M. SMITH: I believe that the focus of 12 the quote is on implementation of the licensee's 13 proposed action.
14 JUDGE KARLIN: Right.
15 MR. M. SMITH: So I believe that the focus 16 is on the --
17 JUDGE KARLIN: I thought that's what I 18 just said.
19 MR. M. SMITH: -- adequacy of the aging 20 management program itself, not on the implementation 21 of the licensee's actions. I think the use of the 22 word "proposed" in that sentence is very significant.
23 It demonstrates what the Commission is talking about 24 is not the actual implementation but the --
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100 1 to be proposed, does it not, because it's in the 2 future. It's -- it can't be -- they can't demonstrate 3 they're doing it now because it's not now. Proposed 4 is an inevitable adjunct because the aging management 5 program doesn't go in effect until the renewal is 6 granted.
7 Question? I'm using the word "proposed" 8 is inevitable because an aging management program is 9 inevitably in the future.
10 MR. M. SMITH: Right. But if the 11 Commission had intended for this review to also 12 include an analysis of whether or not the Applicant is 13 likely to do or capable of implementing the aging 14 management program in the future, then the 15 implementation of the licensee's actions --
16 JUDGE KARLIN: Well, let's --
17 MR. M. SMITH: -- would cause 18 noncompliance.
19 JUDGE KARLIN: Let's go back -- let's go 20 back to page 22 where I started with. You posit that 21 it is within the scope and now you're then focusing on 22 an alternative argument that, given the quantity and 23 magnitude of these inspection findings, they are not 24 the type that can cause that's unable to find 25 reasonable assurance.
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101 1 What type could? They've alleged a 2 pattern of non- -- inability to manage things and a 3 pattern of not -- what would be the line that would 4 say the types that are the type that could cause us to 5 find -- admit a contention? Is there a line --
6 MR. M. SMITH: I don't think it's 7 reflected on a line of reasonable assurance, Your 8 Honor, and --
9 JUDGE KARLIN: But isn't that the merits?
10 That's the merits. I'm talking about the 11 admissibility of the contention?
12 MR. M. SMITH: Well, it is the merits of 13 the contention. The admissibility has to show, you 14 know, it could or -- could go to the merits and that's 15 our -- the reasonable assurance standard is a very 16 high one and the -- the Commission has been unable to 17 find reasonable assurance in the past, having very, 18 very significant violations and --
19 JUDGE KARLIN: Well, the reasonable 20 assurance standard is a high one and, therefore, the 21 Applicant's burden of showing reasonable assurance, 22 demonstrating reasonable assurance is a high burden.
23 Is that what you're saying?
24 MR. M. SMITH: Well, for -- well, negating 25 it is a high burden as well.
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102 1 JUDGE ABRAMSON: Can I pick this up for a 2 second, Judge Karlin?
3 JUDGE KARLIN: Sure. Sure.
4 JUDGE ABRAMSON: Let me -- is this 5 microphone on? Yes? You can hear me all right?
6 Okay. Let me pick this up for a second, Counselor.
7 Your statement to the effect that these are not the 8 types or kind of violations that could lead the Agency 9 to not be able to find reasonable assurance, is 10 that --
11 MR. M. SMITH: Type and quantity, Your 12 Honor.
13 JUDGE ABRAMSON: Okay, type and quantity.
14 Now, could lead or could result in to me is a critical 15 element of your statement; that is, these -- these 16 violations are insufficient to -- to form the basis 17 for an NRC finding that there's not reasonable 18 assurances -- these violations in and of themselves or 19 these violations are insufficient to form the basis, 20 and the implication of that -- is that correct?
21 MR. M. SMITH: That's my understanding.
22 JUDGE ABRAMSON: And if that's the case, 23 then the logical extension of that is there could not 24 be a finding based on those -- based on those 25 violations, there could not be a finding of lack of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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103 1 reasonable assurances and, therefore, there is no 2 basis made up -- there's no basis from those 3 violations?
4 MR. M. SMITH: I agree, and --
5 JUDGE ABRAMSON: That's the substance of 6 your argument? In other words, it's not going to the 7 merits at all. It's that those violations themselves 8 are insufficient to form a basis. There may be some 9 violations that would be sufficient to form a basis.
10 Those are insufficient. And that's not a merits 11 question. It's an argument that the way the NRC 12 evaluates violations, those themselves could not and, 13 therefore, are insufficient to form the basis for an 14 admissible contention?
15 MR. M. SMITH: I agree.
16 JUDGE ABRAMSON: I'm just trying to 17 understand your argument. I'm not making a statement 18 that I believe that or not. I'm trying to understand 19 your argument.
20 MR. M. SMITH: I agree that's a 21 description of my argument.
22 JUDGE KARLIN: On page 18 of your answer, 23 you quote from the Federal Register at 64.960. That's 24 the same citation we had before. And in quotes --
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104 1 be limited to whether actions have been identified and 2 have been or will be taken to address age-related 3 degradation unique to license renewal."'
4 What do we do if the word "normally" be 5 limited?- "The NRC's decision normally -- should 6 normally be limited." So I guess there are times when 7 it won't be limited that way.
8 And, in fact, the next sentence -- which 9 is the one we talk about -- is where contentions can 10 be admitted in certain circumstances..
11 MR. M. SMITH: I believe that the 12 statement when read in its entirety -- I'm going to 13 need a minute, Your Honor.
14 (Pause.)
15 JUDGE KARLIN: It's out of the December 16 13th, 1991 Federal Register, 56 Fed. Reg. 64.960 I 17 think it is as you cited -- yeah, 64.960.
18 It says, quote -- I'll read the Federal 19 Register. "Noncompliances are generally 20 independent ... " -- oh, that's a little bit different 21 -- "independent in a causal sense of a renewal of 22 decision. For example, failure to comply with 23 cessation blackouts are not caused by the impending 24 operations. However, allegations that the ...
25 well, that's a different -- I'm sorry.
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105 1 MR. M. SMITH: Are you reading --
2 JUDGE KARLIN: What I'm focusing on is 3 what does it mean when it says, "The NRC's 4 decision" -- as to whether or not aging -- the 5 Petitioner has demonstrated it will adequately manage 6 aging during the period of extended operation -- it 7 says, "The NRC's decision should normally be limited 8 to whether actions have been identified that will be 9 taken to address age-related ... " so there's something 10 else.
11 MR. M. SMITH: Yeah. Obviously.
12 JUDGE KARLIN: What does "normally" mean?
13 (Pause.)
14 Let me just -- let's clarify.
15 MR. M. SMITH: No. If I can --
16 JUDGE KARLIN: Doesn't "normally" mean 17 just what it says? -- that there may be some 18 exceptions?
19 MR. M. SMITH: Yes. I -- I am not 20 entirely familiar with all the statements --
21 JUDGE KARLIN: Well, --
22 MR. M. SMITH: -- but I believe that 23 during the 1991 statement of consideration, the 24 Commission recognized the possibility there could be 25 some other issues during the license renewal NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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106 1 proceeding that wouldn't be unique to -- or focused on 2 age-related degradation.
3 JUDGE KARLIN: All right. We'll move on.
4 MR. M. SMITH: *But I think the word 5 "normally" is mentioned. I was hoping there would be 6 a statement in that paragraph that specified that, but 7 I can't see one right now.
8 JUDGE KARLIN: Well, okay. We'll move on.
9 MR. M. SMITH: I'd be happy to get back to 10 Your Honor and address that later today.
11 JUDGE KARLIN: That's all right. It was 12 your quote, so --
13 MR. M. SMITH: Yes.
14 JUDGE KARLIN: -- I'm just asking about 15 it. We'll move on.
16 JUDGE TRIKOUROS: I have a question.
17 JUDGE KARLIN: Go ahead.
18 MR. M. SMITH: I think that's what the 19 meaning of the word "normally" is but --
20 JUDGE KARLIN: All right. Let's go on.
21 JUDGE TRIKOUROS: Your answer at pages 16 22 through 17, you say, "An applicant for license renewal 23 may reference the GALL Report."
24 MR. M. SMITH: Yes.
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107 1 "For each aging management program, the application 2 gives a brief description of the licensee's operating 3 experience in implementing that program."
4 So implementation seems to be part of this 5 equation.
6 MR. M. SMITH: Your Honor, that's a 7 quotation from the Commission in the Oyster Creek case 8 I mentioned earlier.
9 JUDGE TRIKOUROS: Right. Right. Well, 10 no. The part where you say you may reference the GALL 11 Report is your words. I think the latter part was the 12 quote from the other case.
13 MR. M. SMITH: I believe in that instance, 14 the Commission was discussing the situation where an 15 applicant has submitted a AMP that is not consistent 16 with the GALL Report. And it has to address the ten 17 elements mentioned in the GALL Report. I believe that 18 there is clarification of those ten elements in the 19 standard review plan, NUREG 1800, which describes 20 those ten elements as well as Element 7, the 21 corrective action program, and Element 10, operating 22 experience.
23 Reading that description of those 24 elements, I think that it seems clear that the 25 elements are intended to address the adequacy of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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108 1 aging management plan itself, not whether the 2 applicant will actually take corrective actions to 3 address noncompliance with the aging management 4 program but, rather, whether the aging management 5 program contains elements to govern those corrective 6 actions and to then address them through 7 administrative controls and confirmatory processes, 8 element eight.
9 JUDGE ABRAMSON: Let's pick-that one up.
10 When the Staff's reviewing -- and now I want you to 11 speak as an attorney and keep it to your filings 12 before us, if you can, which I know is difficult given 13 this line of questioning we've been going down -- when 14 the Staff's reviewing the aging management programs 15 and the application, the Staff -- does the Staff focus 16 on the programs, does the Staff think about at all how 17 the Applicant might manage it other than to the extent 18 it's described in the program? Does the Staff 19 consider whether the Applicant's management will 20 implement it? Or does the Staff focus on what's in 21 the program itself and what's in the license 22 application?
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109 1 adequately and ensure the safe operation of the plant.
2 JUDGE KARLIN: On page 16 of your answer, 3 -- this is a question that's come up for PG&E as well 4 -- you state in the middle of the page, "The 5 Commission's general policy is not assuming that 6 licensees will violate NRC regulations."
7 And certainly -- and that's certainly 8 true. I mean, not assuming will violate NRC 9 regulations. Don't the three inspection reports for 10 the last three years say by the NRC Staff that the 11 company is violating the NRC regulations? Don't they 12 use the word "violation" numerous times?
13 MR. M. SMITH: Yes. The inspection 14 reports do use the word "violation" numerous times.
15 JUDGE KARLIN: So we don't need to assume 16 that the licensee will violate NRC regulations because 17 the NRC Staff has already said it is violating NRC 18 regulations.
19 MR. M. SMITH: This portion of the brief 20 doesn't deal with the inspection reports, Judge 21 Karlin.
22 JUDGE KARLIN: I understand.
23 MR. M. SMITH: This section of the brief 24 is discussing the Commission's general policy 25 determinations.
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110 1 JUDGE KARLIN: I said as a general policy.
2 MR. M. SMITH: And how it structured the 3 scope of license renewals.
4 JUDGE KARLIN: But if we have -- but if we 5 have contravailing evidence, you're not going to 6 assume they're going to violate. But if you have 7 concrete evidence; i.e., three inspection reports from 8 the Staff that they are in violation and there's an 9 adverse trend, is thIe assumption rebutted?
10 MR. M. SMITH: Well, in this case I'm 11 arguing that the Commission has made the generic 12 determination that the focus of the license renewal 13 review should be on the adequacy of the aging 14 management plans. And as a general matter, I'm saying 15 that this comports with the Commission's determination 16 in the Oyster Creek case.
17 I don't believe the Commission explicitly, 18 considered this instance in this statement of 19 consideration where the -- well, actually I think the 20 Commission did actually consider the instance where 21 licensees would not be in compliance with their 22 current licensing basis and the Commission, in their 23 statement of consideration, explicitly say that it 24 cannot conclude with perfect certainty -- I'm 25 obviously paraphrasing it -- all licensees will at all NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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111 1 times comply with their current licensing basis. Yet, 2 nonetheless, the Commission went on to promulgate a 3 rule that permitted license renewal based on -- so I 4 think the Commission envisioned that situation, Judge 5 Karlin.
6 JUDGE KARLIN: I think I'm troubled and 7 trying to understand current -- certainly perfection 8 is not required, you know, by a facility and there 9 might be a noncompliance or an issue or a violation 10 that would occur, and that shouldn't open the 11 floodgates to contentions that, Well, they can't 12 manage their company right so they can't manage their 13 aging management program.
14 But, by the same token, there are other 15 situations which are the other side of the line, at 16 least an admissible contention, and a contention might 17 be admitted without getting to the merits.
18 MR. M. SMITH: My response to you, I think 19 the Commission has drawn the line at the place where 20 the actual implementation of aging management programs 21 is not part of the scope of --
22 JUDGE KARLIN: Well, I understand.
23 MR. M. SMITH: But if you want me to go 24 past that line, I think a good second place to draw 25 the line would be at reasonable assurance and to look NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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112 1 at are these types of -- are these violations -- are 2 these the types of violations that could cause the NRC 3 to be unable to find the reasonable assurance that the 4 plant would operate safely.
5 JUDGE KARLIN: Right.
6 MR. M. SMITH: And under the Staff's 7 procedures, thereby issue a shutdown order.
8 JUDGE KARLIN: Oh, I -- you're saying the 9 only thing that could merit a contention being 10 admitted here is the -- would be a shutdown order?
11 MR. M. SMITH: I mean, it would have --
12 JUDGE KARLIN: Noncompliance would warrant 13 a shutdown order?
14 MR. M. SMITH: I mean --
15 JUDGE KARLIN: That's pretty extreme, 16 isn't it?
17 MR. M. SMITH: I believe that that's --
18 JUDGE KARLIN: Is there some support for 19 that? There has to be a shutdown order before we can 20 admit a contention?
21 MR. M. SMITH: There's support from 54.29 22 that says the Commission has to find reasonable 23 assurance. And the Mothers for Peace have argued that 24 these violations are the types that can cause the NRC 25 to be unable to find that reasonable assurance that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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113 1 the plant will implement its aging management programs 2 and thereby comply with its licensing basis during the 3 period of extended operations. And that finding of 4 being unable to operate -- reasonable assurance -- I 5 mean, unable to operate is the type of thing that you 6 would need to find at that level.
7 JUDGE ABRAMSON: Counselor, let me ask 8 you: In essence here, what we have is a commitment 9 from the Applicant. They've.got this plan. They have 10 reviewed the plan. If you deal with that plan, if you 11 live up to your commitments and properly implement 12 that plan, that's fine.
13 At what point is a contention challenging 14 a commitment admissible? Because basically you're 15 saying if they make -- if they're making a commitment 16 to do this -- right? --
17 MR. M. SMITH: Yes, Your Honor.
18 JUDGE KARLIN: -- and what would be the 19 conditions under which a challenge to a commitment 20 itself would be admissible or inadmissible?
21 MR. M. SMITH: I think those situations 22 would be when the challenge focused on the elements of 23 the aging management program and how those elements 24 did not guarantee the safe operation of the plant 25 during the periods of extended operation.
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114 1 JUDGE ABRAMSON: Okay. But let's go back.
2 So I understand. But the elements of the plan aren't 3 at issue here.
4 MR. M. SMITH: Okay.
5 JUDGE ABRAMSON: I mean, --
6 MR. M. SMITH: Right.
7 JUDGE ABRAMSON: -- of course you're 8 saying Mothers for Peace are arguing, Yeah, your 9 commitment's no good. When would that kind of a 10 contention be admissible? What are the conditions for 11 which or under which a challenge to a commitment of a 12 licensee is admissible?
13 MR. M. SMITH: In the manner that Mothers 14 for Peace have crafted it where it's a challenge --
15 JUDGE ABRAMSON: Yeah. We made the 16 commitment. The Applicant's making a commitment.
17 When is a commitment challengeable?
18 MR. M. SMITH: Well, our response would be 19 that that's not the type of challenge that would be 20 admissible in the scope of license renewal.
21 JUDGE ABRAMSON: I mean, there are lines 22 of cases that address a commitment of an applicant.
23 I've seen them. But -- are you familiar with those?
24 And maybe Ms. Uttal's familiar with those lines of 25 cases.
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115 1 MS. UTTAL: I'm not familiar.
2 JUDGE ABRAMSON: Okay.
3 MR. M. SMITH: No, Your Honor.
4 JUDGE ABRAMSON: Okay. But, to me, that's 5 the substance of this challenge. Would you agree, Ms..
6 Curran, that the substance of this challenge is that 7 the commitment's no good?
8 JUDGE KARLIN: Why don't we wait for 9 her--
10 JUDGE ABRAMSON: Well, --
11 JUDGE KARLIN: Let's wait for her to get.
12 up. It's -- re-ask the question. We'll wait till she 13 -- so anything further for Mr. Smith?
14 JUDGE TRIKOUROS: Let me explore the GALL 15 Report one more time.
16 MR. M. SMITH: Yes, Your Honor.
17 JUDGE TRIKOUROS: The -- it's very clear 18 to me the disparate problems with implementing 19 programs at the plant don't fall under the category of 20 a -- of something that would apply to license renewal.
21 I don't have any big problem with that.
22 But the purpose of license renewal -- the 23 whole licensing purpose is to assure the current 24 licensing basis is maintained for 20 more years.
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116 1 question is having a problem understanding their 2 current licensing basis and implementing design --
3 implementing decisions associated with the design 4 basis of the plant, and they're having this problem 5 now for at least two years and I suspect possibly 6 longer -- I don't know -- but -- and we don't know if 7 it's extending into 2010 yet.
8 Do you not see that as different from 9 disparate problems in reactor management, operations 10 management that do not in any way relate to the 11 licensing -- the aging management program?
12 MR. M. SMITH: With respect to the scope 13 of license renewal, I do not. The focus of license 14 renewal was on the adequacy of the aging management 15 plan. The licensee's ability to implement corrective 16 actions to identify, analyze, and evaluate problems is 17 a part of the licensee's ongoing obligations to comply 18 with their current licensing basis. And if the public 19 has concerns regarding the licensee's ability to 20 implement or to obtain those requirements, then the 21 remedy is always to file a suit to evict Petitioner.
22 JUDGE TRIKOUROS: If there was a problem 23 with maintaining some piece of equipment and there was 24 a finding and then there was a corrective action, and 25 that corrective action was not implemented, and then NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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117 1 it happened again and it happened again and it 2 happened again and it went on over a two-year period 3 at various times, would that be not different than if
- 4. it happened once and it was corrected?
5 In other words, is the degree an issue 6 here and the nature of this finding which is a cross-7 cutting issue and that has been going on for 8 approximately two years now without any correction?
9 MR. M. SMITH: Well, with respect to the 10 scope of license renewal, I do not believe that it is 11 aswe believe that the compliance is outside of the 12 scope of license renewal and whether it happens once 13 or ten times, the obligation is on the licensee to 14 address that now during the current term of operation 15 and the NRC Staff should be inspecting and identifying 16 those issues and read the inspection reports in the 17 cases the Staff has.
18 If we move on and say this is part of the 19 scope of license renewal, then I think that to the 20 extent I believe that reasonable assurance leads to a 21 level of an admissible intention of challenging the 22 Applicant's ability or likelihood to implement the 23 aging management plan, then frequency could matter in 24 that instance.
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118 1 program -- the administrative program elements of the 2 GALL Report?
3 MR. M. SMITH: I believe the 4 administrative elements of the GALL Report focused on 5 whether or not the AMP itself contained, you know, a 6 plan for corrective actions, if it contained a plan 7 for administrative controls, not whether or not --
8 JUDGE ABRAMSON: And the Staff would 9 review that plan and not accept it unless the Staff 10 viewed that that plan could implement those things; is 11 that correct?
12 MR. M. SMITH: That's correct, Your Honor.
13 JUDGE KARLIN: Any further questions? All 14 right. Thank you, Mr. Smith.
15 MR. M. SMITH: Thank you, Judge Karlin.
16 JUDGE KARLIN: Ms. Curran, I think we had 17 a few questions for you. Then we'll move to 18 Contention EC-l.
19 MS. CURRAN: I also have a couple points 20 I'd like to make at this time.
21 JUDGE KARLIN: Well, we'll see. We'll 22 see. Again, you may get to make your points in light 23 of the questions. I would like you to then give us 24 your thoughts on the 1991 Federal Register quote that 25 I keep harping on which is quoted by the PG&E in their NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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119 1 brief at page 11, Footnote 4 I guess it is, and where 2 they say, "Allegations relating to the implementation 3 of these actions has or will cause noncompliance would 4 be valid subjects for a contention."
5 Isn't that your point, that this is the 6 type of contention you're raising here?
7 MS. CURRAN: Yes.
8 JUDGE KARLIN: All right.
9 MS. CURRAN: And just to follow up oh 10 that, I guess to make one of my points, which is that 11 in 54.21(d), the Regulation refers to -- and this is 12 the Regulation that specifies what are the 13 requirements for a license renewal application -- it 14 uses the words "program" and "activities," so I think 15 the word "activities" is a broader word than just 16 programs that would encompass, you know, how are you 17 going to do this.
18 JUDGE KARLIN: Okay.
19 MS. CURRAN: Not just what's your paper 20 plan.
21 JUDGE ABRAMSON: Well, Ms. Curran, can I 22 follow up your further explanation? Earlier, I asked 23 you whether your challenge was essentially to whether 24 they would properly implement it, whether they would 25 manage it.
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120 1 MS. CURRAN: Uh-huh.
2 JUDGE ABRAMSON: Is my earlier question or 3 statement of the challenge that I made that what 4 you're effectively challenging is even if the plan is 5 perfect, you're challenging whether they will live up 6 to their commitment to implement that plan; is that 7 correct?
8 MS. CURRAN: Yes, and I think that it's 9 possible -- these inspection repoicts raise the 10 question why does this keep happening, and I think --
- 11. I'm not an expert in this field at all, but I could 12 imagine that one of the answers is there's something 13 wrong with your program. One of the answers might be 14 you lack an adequate safety culture. But another 15 answer could be there's something missing from your 16 program. Maybe it's training. I don't know. I 17 really don't -- I don't know what the diagnosis would 18 be for the cause of this, but it seems to me that what 19 we need in order to gain admission of this contention 20 is the evidence that there is something wrong that has 21 to be addressed such that it raises a question about 22 whether the program will be implemented 23 satisfactorily.
24 JUDGE ABRAMSON: But there -- the minute 25 when you start talking about something wrong with the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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121 1 program, to me you take it back to the adequacy of the 2 aging management program as opposed to the challenge 3 to whether they will adequately implement or properly 4 implement that program.
5 And I thought I understood you to be 6 challenging their -- whether they will effectively 7 implement.
8 MS. CURRAN: Well, the word is -- the word 9 is "manage."
10 JUDGE ABRAMSON: Right.
11 MS. CURRAN: And that -- no, that's the 12 word in the Regulation.
13 JUDGE ABRAMSON: Yes.
14 MS. CURRAN: So that I think that's the 15 word you have to come back to and that there are 16 several ingredients that go into whether you do a good 17 job of managing something, and one would be you've got 18 the right instructions, you've got a good set of 19 instructions, and one would be you've got an 20 organization that can carry it out, that has a 21 commitment, adequate commitment. I just -- I don't 22 want to -- I don't want to cut the contention short 23 because the contention focuses on the word "manage."
24 JUDGE ABRAMSON: But you're not -- right.
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122 1 and as opposed to challenging any specific element of 2 a plan.
3 MS. CURRAN: That's right. We are not 4 contesting any element -- any specific element. We 5 are contesting the management of aging.
6 JUDGE ABRAMSON: And if there were 7 something in the plan that described -- and I haven't 8 read the plan -- if there were something in the plan 9 that described how they would implement; i.e., what 10 management would do under various circumstances, 11 that's not what's being challenged here because you 12 haven't addressed any element of the plan.
13 MS. CURRAN: No. But I can imagine now it 14 could be relevant in someone's testimony to say, Well, 15 perhaps one reason why this --
16 JUDGE ABRAMSON: Yeah, but we're not going 17 there.
18 MS. CURRAN: Yeah. In terms of the 19 admissibility of the contention, no. We are not 20 challenging any element of the program.
21 JUDGE TRIKOUROS: And you've heard the 22 Applicant and the Staff indicate that the -- and they 23 provided supporting basis that all of this should be 24 covered by the Reactor Oversight Program and you 25 disagree with that based on your interpretation of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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123 1 what the word "manage" means in the Regulation; is 2 that correct?
3 MS. CURRAN: Right. And I would like to 4 refer the Board to the preamble to the Revised License 5 Renewable -- which actually was 1995. I think I said 6 1996 before. Because I think it has a useful quote 7 and a helpful quote. This is 60 Federal Register.
8 The first page is 22461. The date is May 8th, 1995 9 and the page I'm reading from is page 22464. It says, 10 "The objective of a license renewal review is to 11 determine whether the detrimental effects of aging, 12 which could adversely affect the functionality of 13 system, structures, and components that the Commission 14 determines require review for the period of extended 15 operation are adequately managed. The license renewal 16 review is intended to identify any additional actions 17 that will be needed to maintain the functionality of 18 the system, structures, and components in the period 19 of extended operations."
20 So our contention is essentially there are 21 some additional actions that need to be taken here to 22 ensure that the aging management program for this 23 plant is adequately managed and it's effective.
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124 1 that's being reviewed by the Staff?
2 MS. CURRAN: Yes.
3 JUDGE ABRAMSON: So are you asserting 4 there are omissions from the plan?
5 MS. CURRAN: That could -- at this point, 6 you know, we don't have an expert at this point to 7 diagnose here's the reason for the problem and it 8 doesn't -- what I've seen in the inspection reports, 9 it just keeps happening. Nobody said why. So I don't 10 know if we can get to that yet.
11 JUDGE TRIKOUROS: One could interpret what 12 you just read to be really components of the aging 13 management program entirely, not separate actions, not 14 separate activities. That's I think how the Applicant 15 and the Staff interpret such things.
16 But you're saying this is not part of the 17 aging management program as written and described in 18 the license application but is -- this is a separate 19 activity?
20 JUDGE ABRAMSON: Well, it sounds to me 21 like a generalized assertion that there's something 22 missing and we don't know what -- we can't identify it 23 and that the evidence that there's something missing 24 is by these three inspection reports.
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125 1 from what's been offered. The PG&E has the burden of 2 proof here, has the burden of proving that it can and 3 will adequately manage aging during the license 4 renewal term.
5 We have presented evidence that, yes, 6 something is missing, whether -- and we are not at the 7 stage yet of diagnosing the problem in detail, but 8 something is missing such that PG&E doesn't have a 9 basis to come in right now and say, No problem. We 10 can manage this just fine. As a matter of fact, what 11 PG&E has is a history of difficulty identifying and 12 resolving problems with this operation which, when 13 presented with the more difficult problems posed by 14 license renewal of, you know, the problems of 15 monitoring and correcting aging equipment, may put the 16 safety of the plant in jeopardy.
17 JUDGE ABRAMSON: And what sorts of 18 evidence or testimony do you think would be presented 19 at any hearing on the merits of this question? In 20 other words, where would we go? What would we be 21 focusing on were we to have a hearing on the merits of 22 this particular challenge?
23 MS. CURRAN: I would think that PG&E as 24 the party with the burden wou-A have some burden of 25 showing that it is -- it is going to include some NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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126 1 measures for managing age-related degradation that 2 would correct the problems that it's been having that 3 would make sure that the problems did not follow PG&E 4 into the license renewal term with these new issues, 5 and that the intervenors would critique that.
6 JUDGE KARLIN: May I bring us back to the 7 contention, is that I think it's stated -- quoted, 8 "The Applicant, PG&E, has failed to satisfy 10 CFR 9 54.29's requirement to demonstrate a reasonable 10 assurance that it can and will manage the effects of 11 aging, etc.* In particular, they have failed to show 12 how it will address and rectify an ongoing pattern of 13 management."
14 I'm not sure I see this as a contention of 15 -- you're certainly not identifying any part of the 16 piece of paper --
17 MS. CURRAN: Right.
18 JUDGE KARLIN: -- the plan and say, 19 There's something -- that's wrong. That's a wrong --
20 page 32(e) is wrong. Nor are you saying there's 21 something omitted from the piece of paper. I think 22 what you seem to be saying is that given the current 23 ongoing pattern of management failures with respect to 24 the current operations, there is a failure to satisfy 25 the need to demonstrate that the management will NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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127 1 implement the piece of paper.
2 MS. CURRAN: Uh-huh.
3 JUDGE TRIKOUROS: I don't see a contention 4 of omission so much as a contention of implementation 5 or management. I think "management" is a correct 6 word. "Manage" is the key word and I don't see how 7 you take "management" out of an aging management 8 program.
9 I just think it's relevant somehow and the 10 Staff and the Applicant seem to be saying -- and you 11 can comment on this -- that the management refers to 12 what's written in the aging management program and 13 approved by the Nuclear Regulatory Commission. The 14 implementation or any problem with implementation, 15 such as the findings that you've identified, are 16 covered under existing interfaces between the Nuclear 17 Regulatory Commission and the Applicant; namely, 18 Reactor Oversight Program and others.
19 That's their position. What would you say 20 about that?
21 MS. CURRAN: I would say that that 22 position would leave the word "management" out of the 23 Regulation. And that's just not consistent with basic 24 principles of regulatory interpretation.
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128 1 right. I think we've covered enough. Do you have one 2 final point?
3 MS. CURRAN: I have one more thing, which 4 is that I am not familiar with the doctrine that you 5 were talking about, Judge Abramson, of the bad actor's 6 doctrine. As I think about how it might apply, it's 7 hard for me to see how it would apply in this case 8 just because the inspection reports don't describe 9 this as an issue that has to do with individuals.
10 They describe it as an organizational problem. But I 11 guess what I would like to ask is that if the Board 12 thinks that the bad actor doctrine could be applied 13 here to deny the contention, we'd just like a chance 14 to brief the question.
15 JUDGE KARLIN: All right. Thank you.
16 We're now going to turn to Environmental Contention 17 Number 1. Do you want to gather the correct 18 materials, Ms. Curran?
19 MS. CURRAN: Yes.
20 JUDGE KARLIN: I know your backup --
21 (Pause.)
22 Are you ready, Ms. Curran 23 MS. CURRAN: Yes.
24 JUDGE KARLIN: Okay. Could you state the 25 contention for the record, please, read it?
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129 1 MS. CURRAN: Yes. Contention EC-l states, 2 "PG&E's severe accident mitigation alternatives, SAMA, 3 in other words, analysis fails to satisfy 40 CFR 6 and 4 1502.22 because it is not based on complete 5 information that is necessary for an understanding of 6 seismic risks to the Diablo Canyon Nuclear Power 7 Plant. And because PG&E has failed to acknowledge the 8 absence of the information or demonstrated that the 9 information is too costly to obtain, as a result of 10 PG&E's failure to use complete information, the SAMA 11 analys.is does not satisfy the requirements of the 12 National Environmental Policy Act, or NEPA, for 13 consideration of alternatives."
14 And then we cite a case and NRC 15 Implementing Regulation 10 CFR 51.53(c) (3) (ii) (L).
16 JUDGE ABRAMSON: Now, is it more specific 17 than that or is it just this general contention? Do 18 you have a particular reason that you believe that the 19 SAMA analysis -- some particular things that the SAMA 20 analysis fails to consider?
21 MS. CURRAN: We don't have a particular 22 SAMA in mind.
23 JUDGE ABRAMSON: I'm not thinking about 24 the SAMA. I'm thinking about the things that are not 25 adequately -- are not fully considered. Are you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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130 1 saying -- you're generally they haven't considered.
2 MS. CURRAN: Well, what is not considered 3 is the result of the study that PG&E and the United 4 States Geological Survey now have underway which 5 includes the Shoreline Fault and the general seismic 6 activity in the region and the probabilistic risk 7 assessment which will put all that into a risk 8 assessment context.
9 JUDGE ABRAMSON: Okay. So if I correctly 10 hear that, you're not making a generalized assertion
-11 with no specifics. You're saying -- and let me come 12 at it in another way. If they were to provide SAMA 13 analysis and PRA analysis that did consider those --
14 the Shoreline Fault and its effects, would that -- is 15 that your only concern here, or are you trying to say 16 something much broader that I don't understand?
17 MS. CURRAN: The concern is that the --
18 the SAMA analysis for the Diablo Canyon plant does not 19 include a probabilistic analysis of the risks posed by 20 the Shoreline Fault.
21 JUDGE ABRAMSON: It doesn't incorporate 22 the risks posed by Shoreline Fault; right? A PRA 23 would include lots of things. That particular one is 24 excluded?
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131 1 to the -- this is actually -- it's not asking for just 2 anything. It's asking for a probabilistic assessment 3 of that risk as opposed to -- PG&E now has in its 4 possession a deterministic analysis of the Shoreline 5 Fault, and we're saying that isn't enough because the 6 standard of reasonableness that the NRC has 7 established is PRA.
8 JUDGE ABRAMSON: Okay. But that's focused 9 on Shoreline Fault and the effects of Shoreline Fault.
10 MS. CURRAN: Yes.
11 JUDGE ABRAMSON: Thank you.
12 JUDGE KARLIN: I have a question about --
13 you're citing, of course, the CEQ Regulation 40 CFR 14 1502 about incomplete or unavailable information. And 15 the NRC takes the position it's not bound by those 16 regulations. It generally, you know, looks at them 17 and uses them as guidance or whatever. We can --
18 we're not going to argue about that at the moment.
19 But is -- when doing -- in meeting that Reg., is the 20 Agency simply required to gather up such information 21 that exists at the moment and put them into a pile and 22 then evaluate them, or is there ever an obligation to 23 conduct additional investigation or to generate 24 additional studies before the EIS is completed?
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132 1 that, well, you know, based on extant information, you 2 know, maybe they've covered everything. But they're 3 right now working on something very important and 4 we -- and that ought to be in there, too. That needs 5 to be in there, too.
6 MS. CURRAN: Yeah. I -- as I recall, I 7 don't think that the Agency can be forced to go out 8 and do some new study that it didn't already plan to 9 do. But I think this is a very different situation 10 where the study's been planned since 2008. So --
11 JUDGE KARLIN: What study? You say "the" 12 study. What study?
13 MS. CURRAN: The study -- the CRADA study.
14 JUDGE KARLIN: Yes. There's a CRADA.
15 There's a --
16 MS. CURRAN: Right.
17 JUDGE KARLIN: That's with USGS and PG&E 18 and they're doing some studies and there's this long 19 term -- what is it called? -- LT --
20 MS. CURRAN: Yes, LTS --
21 JUDGE KARLIN: Seismic program that 22 they've been doing for years and years.
23 MS. CURRAN: Right.
24 JUDGE KARLIN: All right. So are -- and 25 their answer is, Well, there's always new data coming NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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133 1 in.
2 MS. CURRAN: Right.
3 JUDGE KARLIN: We can't stop everything 4 and say, Well, tomorrow there may be some new data.
5 MS. CURRAN: Right.
6 JUDGE KARLIN: Because, well, you know, 7 there's always new data.
8 MS. CURRAN: And the case law says you've 9 got to be able to draw the line somewhere.
10 JUDGE KARLIN: Right. Right.
11 MS. CURRAN: It can't go on and on 12 forever. So what we're saying is look at all the 13 circumstances of this case. Okay. First of all, this 14 license doesn't expire till 2024. That's Unit 2.
15 Unit 2, 2025. So we're 14 years out right now; okay?
16 And most license renewal applications don't take more 17 than five or six years to process. So this is the --
18 PG&E has enough time to do this a couple of times 19 before the license expires. Okay. That's number one.
20 Number two, the earthquake -- Diablo 21 Canyon is an active earthquake zone. We already know 22 about the Hosgri Fault and a new fault has been 23 identified. This is a very serious risk. And it's 24 something that the NRC and PG&E try to predict what's 25 going to happen, but one would want to have the best NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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134 1 available information before relicensing a plant for 2 another 20 years or perhaps 40 years. So if we know 3 that a study which, by the way, the last time it was 4 done was 1988, okay, so it's a little out of date now.
5 So we're going to have another study that's going to 6 be -- we know it's going to be finished around 2013.
7 The CEQ Regulations require -- and this is just a 8 matter of reasonableness. This is not -- this is not 9 some far-out regulation that everybody would say, Oh, 10 that's crazy. They say get the best available 11 information. And if you know there's some information 12 out there and you can't get it 'cause it costs too 13 much money or you have to wait too long to get it, you 14 need to -- you need to discuss that.
15 You know, this information -- knowing what 16 is the seismic risks to this plant is probably the 17 most important environmental issue facing the NRC with 18 respect to renewing the Diablo Canyon license.
19 There's -- I don't know of any other plant that is 20 sitting next to a known active major earthquake fault, 21 and now a new one has been discovered. It would be 22 irresponsible for the Agency or PG&E to rush into 23 license renewal if there's plenty of time left between 24 now and the expiration of the Unit 1 and 2 licenses to 25 wait and get that information and put it into a PRA NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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135 1 and look at what are the alternatives for avoiding or 2 mitigating those risks.
3 And of course the alternatives always 4 include not renewing the license. They include a 5 whole range of things, but they include the no action 6 alternative and everything else that is -- that can be 7 evaluated to be cost effective.
8 JUDGE KARLIN: Well, let me ask. The 9 Staff in its contention has said that they have -- and 10 I'm looking at their brief on page 28 -- they have no 11 objection to admission of a limited part of Proposed 12 Contention EC-2 -- EC-l, I'm sorry -- and they go on 13 to say, well, but it simply should be -- "Staff 14 opposes the admission of the remainder of the 15 contention specifically requiring further study of the 16 fault and broader regional studies to be included in 17 the analysis of the environmental reports."
18 Is this just a contention of omission that 19 can be satisfied with the criteria that the Staff lays 20 out in page 29 of their brief? Would you accept their 21 position that it should be admitted partially but not 22 entirely?
23 MS. CURRAN: Well, I think the difference 24 between the Staff's view of this and the Mothers for 25 Peace's view is the Staff -- and I heard it in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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136 1 Staff's opening statement this morning -- is the Staff 2 thinks a license renewal decision can be made with 3 something less than a probabilistic risk assessment.
4 I think I heard overly conservative PRA or something 5 that would --
6 JUDGE KARLIN: Yes.
7 MS. CURRAN: And --
8 JUDGE KARLIN: And you disagree with that, 9 I take it?
10 MS. CURRAN: That's the first time I've 11 actually heard that was this morning, but --
12 JUDGE KARLIN: Well, no. I think that's 13 not correct. I think they say that in their brief, 14 that they think, you know, you don't need to do a 15 probabilistic risk assessment. They say on page 29, 16 "The Staff believes that as to the discussion of the 17 Shoreline Fault, the following has been omitted from 18 the environmental report: One, the potential impacts 19 of the Shoreline Fault; two, the revised CDF 20 estimates; three, the Applicant's search for any 21 equipment, structures not previously identified."
22 They go on to say they don't think you 23 have to wait for a probabilistic risk assessment.
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137 1 with that and that probabilistic risk assessment is 2 the normal approach you say.
3 MS. CURRAN: Yeah, and I think what I 4 heard this morning -- and this was what I heard for 5 the first time -- but in the brief, what I think the 6 Staff was saying was, We've got this deterministic 7 assessment. Let's -- you can -- we won't object to 8 the admission of a contention that says you've got to 9 say something about the Shoreline Fault, and maybe 10 it's just incorporating that.
11 But what we are saying is that that 12 deterministic analysis has -- that type of analysis 13 has been ruled inadequate for a SAMA analysis by the 14 Commission or by the -- I think it was the Licensing 15 Board in the Pilgrim case said -- and maybe it was the 16 Commission that said PRAs are standard ways of doing 17 SAMA analyses.
18 So what we are saying is that there is 19 time to do a PRA here. There's enough time to do it 20 and it needs to be done. And what I heard this 21 morning was we could do some kind of a modified PRA.
22 Maybe it wouldn't take quite as long. I think it 23 would probably take longer than just adopting the 24 deterministic analysis. And I guess we'd have to see 25 what it looked like.
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138 1 JUDGE ABRAMSON: That's exactly where I 2 want to go with this. What I heard Staff saying and 3 what I hear from Judge Karlin's reading of their 4 answer is that what they would support admission of is 5 a contention saying that core damage frequency, CDF, 6 is inadequately -- is inadequate because it doesn't 7 consider the Shoreline Fault.
8 Now, what would happen is, as I understand 9 it, and putting on my techie hat for a moment, you 10 would revise the core damage frequency elements of a 11 PRA so that you i-ncluded the damage -- the effects of 12 the Shoreline Fault which would increase the core 13 damage frequency and would increase it over the 14 spectrum of events that are considered in a PRA in 15 some way and that Staff is saying that could be done 16 in a conservative way so that it would incorporate all 17 -- it would more than incorporate the effects of the 18 Shoreline Fault.
19 Now, having done the core damage frequency 20 modification, you would then revise the PRA. So if 21 the core damage -- and, by the way, the only thing 22 that, as I understand it, the only thing that the 23 Shoreline Fault would change is the core damage 24 frequency for various events.
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139 1 I've got this wrong because you're more familiar with 2 these than I am -- having changed the core damage 3 frequency so that it adequately incorporates the 4 effects -- or conservatively incorporates the effects 5 of the Shoreline Fault, redo the PRA, and see whether 6 that makes other SAMAs effective.
7 That I think is what I hear the Staff 8 saying they would admit. And so rather than wait for 9 a full-blown environmental impact statement or 10 whatever USGS is doing on Shoreline Fault, if in fact 11 there is information that would enable the revision of 12 core damage frequency so that it adequately 13 encompassed effects of the Shoreline Fault, you could 14 redo the PRA. Would that get you where you need to 15 be?
16 MS. CURRAN: I don't think so.
17 JUDGE ABRAMSON: And why?
18 MS. CURRAN: And the reason is that if one 19 looks at the RIL letter that we cited, the main 20 document where the NRC describes the whole history of 21 this process and what's going to happen now, in that 22 document it is clear that the analysis that's been 23 done so far is preliminary in nature and that PG&E 24 right now is gathering additional data about the fault 25 that would better inform the analysis.
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140 1 And I didn't bring the notebook with me, 2 but on pages ten and 11 of this RIL letter, there was 3 kind of a summing up paragraph. I am going to get it.
4 JUDGE ABRAMSON: Why don't you grab it.
5 Yeah.
6 (Pause.)
7 MS. CURRAN: And this -- you know, I am 8 not a seismologist. I'm a lawyer; okay? And part of 9 -- part of what NEPA is about is a member of the 10 public is supposed to be able to read the publicly 11 available documents and get some idea are the relevant 12 concerns being addressed here.
13 So I read these words with not the -- I do 14 not have a Ph.D. in anything to do with earthquakes, 15 but I have the ability to read the plain language of 16 these Government reports. So here are -- starting at 17 the bottom of page ten --
18 JUDGE KARLIN: Of -- please --
19 MS. CURRAN: It is IRL -- what is it? --
20 09- -- hold on a minute.
21 JUDGE KARLIN: IRL 09-001.
22 MS. CURRAN: Right. That's this letter.
23 JUDGE KARLIN: Okay. Page ten.
24 MS. CURRAN: Bottom of page ten. "The 25 CRADA Program is expected to provide significant new NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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141 1 information regarding the larger tectonic picture of 2 the area. The NRC's Staff initial assessment was 3 deterministic, consistent with the design basis of the 4 facility. Currently, probabilistic methods are 5 available to more accurately characterize the hazard 6 of the region surrounding the site. Further, regional 7 moment balancings could also more accurately 8 characterize the regional hazard both independently 9 and as part of a probabilistic hazard assessment. As 10 more information becomes available, such as the slip 11 rate of the potential Shoreline Fault or any 12 additional information about the Hosgri Fault, the NRC 13 Staff expects to evaluate the regional seismic hazard 14 and to form a probabilistic study when the available 15 data is sufficient."
16 So here is the NRC saying, We need this 17 data in order to do a probabilistic assessment. We 18 need to -- we need to wait till we get it. And what 19 we're saying in this contention is that PG&E hasn't 20 given a reason not to wait for this important 21 information.
22 We -- another thing I just wanted to 23 mention -- we attached a letter from the California 24 Public Utilities Commission to our contention which I 25 think was -- the purpose of that letter was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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142 1 misinterpreted by PG&E and the Staff. Our purpose in 2 attaching that letter was to say, If PG&E thinks that 3 it needs to get its license renewal decision in order 4 so that the availability of energy from Diablo Canyon 5 can be planned ahead of time, it's been told by the 6 PUC, We're not ready to put you into the rate base 7 until we know that this is a reliable source of 8 electricity, that an earthquake won't knock you out.
9 So that excuse is gone.
10 We don't have the excuse that it's going 11 to take forever to get a license renewal permit 12 because it just doesn't take -- it doesn't take ten 13 years or 14 years to get one.
14 JUDGE KARLIN: Question here. As I see --
15 you've been characterized I think by the Staff or the 16 Applicant as asking that this Board somehow suspend 17 the proceeding until the probabilistic risk assessment 18 is completed whenever this is going to be completed --
19 2013 I think is the year I've heard bandied about, 20 asking us to suspend the proceedings.
21 I didn't see that in your petition -- you 22 filed a contention which is, as I understand it, that 23 the ER is inadequate because it doesn't have certain 24 elements to it dealing with the Shoreline Fault. If 25 that contention is admitted, we would -- you would NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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143 1 litigate that issue as to whether it's adequate or not 2 adequate and we would just go along and have the 3 merits decision on whether it's adequate or not 4 adequate and we wouldn't suspend anything as far as I 5 can tell.
6 Is that correct? You're just willing for 7 us to go straight ahead on that contention: Would it 8 be adequate or inadequate -- is it inadequate for them 9 not to have that in their ER? I'm not trying to be a 10 trick question. I just -- I don't see you asking for 11 a suspension. I see you saying that what they've 12 submitted is not adequate.
13 MS. CURRAN: And if -- knowing this 14 information is out there being developed, that if they 15 want -- if PG&E wants to go ahead and get a license 16 renewal decision, it has to justify omitting that 17 information.
18 JUDGE KARLIN: Right. And if they don't 19 justify it, then the Board might rule against them and 20 deny their renewal.
21 MS. CURRAN: Right.
22 JUDGE KARLIN: 'And they can apply again 23 later when they got the PRA.
24 MS. CURRAN: And in terms of trying the --
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144 1 we have I believe cited in the history of the 2 Regulation of 40 CFR 1502.22, they do talk about time 3 as being one of the elements that is relevant and cost 4 -- it's too expensive to get the information, it would 5 take too long to get it, so that's something they need 6 to address.
7 Just saying, We haven't finished it yet 8 isn't enough, especially where the -- it's all 9 circumstantial, and the standard for NEPA is a 10 reasonableness standard.
11 JUDGE KARLIN: But their answer is always, 12 Well, wait a second. There's always going to be new 13 data. This is a long-term seismic program. We've 14 been doing this for decades. We're going to keep on 15 doing it for decades. You can't call it -- stop and 16 say, Until this long-term program is finished, you 17 can't issue a license renewal because a long-term 18 program will never be finished.
19 MS. CURRAN: And so the contention is 20 basically saying under the case law, there's a 21 question, a legal question, legal and factual 22 question, where do you draw the line.
23 JUDGE KARLIN: Right.
24 MS. CURRAN: And we're saying PG&E has not 25 drawn the line in the right place.
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145 1 JUDGE ABRAMSON: And you mentioned earlier 2 that Pilgrim case and so that will bring me to PLR 10-3 11 in which the majority of the Board, of which I was 4 a part, was reversed by the Commission and something 5 was remanded to us regarding a SAMA NEPA analysis and 6 the Board -- and the Commission said some very 7 specific things in that remand about what is and what 8 is not to be dealt with. In particular, they talked 9 about it's not a research program.
10 Is that what you're referring to or not 11 when you mentioned Pilgrim?
12 MS. CURRAN: No. I'm referring to -- I 13 believe there was a contention which criticized the 14 SAMA analysis because the argument was that the 15 probabilistic analysis didn't adequately or correctly 16 describe the risk and it should have been a 17 deterministic analysis. And that issue was rejected 18 on the basis that -- the ruling was PRA is the way we 19 do SAMA analysis. That is our standard practice. And 20 in that case, that was the position that the NRC Staff 21 took and said, PRA is the standard way we do SAMA 22 analyses which differs from the position that the 23 Staff took in its brief in this particular case.
24 JUDGE KARLIN: Do we have any more 25 questions for Ms. Curran at the moment? No. Okay.
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146 1 Thank you, Ms. Curran.
2 PG&E and Mr. Repka or Mr. Smith. Mr.
3 Repka, may I ask -- the research information letter 4 09-001 talks about the preliminary deterministic 5 analysis that have been done with regard to the 6 Shoreline Fault. Can you summarize for us what is the 7 status of the current work that's being done by PG&E 8 and the USGS? As I understand it from the petition, 9 there is something that's due in 2010. There's 10 something that's due 2012. And that the probabilistic 11 risk assessment are three-dimensional. I'm not sure 12 whether they're the same or different as 2013.
13 Could you -- what's currently on the books 14 being worked on by PG&E with regard to seismic issues 15 around this plant, please?
16 MR. REPKA: Okay. I'll try to walk 17 through the timeline and if I say something that's 18 incorrect, they're going to tell me from back here.
19 JUDGE KARLIN: Okay.
20 JUDGE ABRAMSON: Before we go down this 21 path, let me just note that a lot of the information 22 we're getting here is not in the record. It's not 23 part of the pleadings. And we have to be very careful 24 what we do'and don't consider from this, particularly 25 factual information that has nothing to do with the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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147 1 pleadings.
2 JUDGE KARLIN: Well, I think that the 3 Petitioner has alleged certain things about a study 4 due 2010, 2012, and 2013, and that is in the record 5 and I'd like that to be addressed if you have a 6 response or that's incorrect in some way.
7 MR. REPKA: Okay. So the issue of the 8 Shoreline Fault was first identified by the USGS under 9 the CRADA with PG&E and the NRC was notified of the 10 issue in November 2008, so that's the first thing.
11 That's based upon the USGS .work to look at the area of 12 seismicity that was known, the offshore area of 13 seismicity, and they relocated some of the historic 14 faults based upon their revised methodology, and that 15 showed a refocusing of some of that seismic activity 16 into this area that is now referred to as the 17 Shoreline Fault.
18 The -- PG&E presented some data back in 19 that time frame based upon that work and some other 20 work. The NRC did an independent assessment in April 21 2009 where they did a -- they looked independently at 22 the -- based upon an 84th percentile deterministic 23 seismic case, which is the licensing base of seismic 24 case and agreed with PG&E that this fault activity was 25 bounded by the design basis Hosgri.
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148 1 PG&E also embarked on some additional 2 work, some field work, including high resolution sea 3 floor mapping of the area offshore from Diablo Canyon, 4 some work related to looking at magnetic information 5 and observation of the offshore region by-helicopter.
6 JUDGE KARLIN: Okay.
7 MR. REPKA: And the point of all of that 8 is a data set went online in December of 2009-January 9 2010. That's what's discussed in some of this 10 information that's being referred to.
11 JUDGE KARLIN: Okay. Well, let me focus 12 this down a little more. The Petitioner at page 11 13 refers to January 2010 memo to the NRC regarding 14 Diablo Canyon, summary of January 5th, 2010 meeting 15 regarding the Shoreline Fault. And in -- on the 16 second page, it says, "PG&E stated Shoreline Fault 17 studies were accelerated and the current schedule is 18 to have the Shoreline Fault study completed by the end 19 of 2010."
20 What's that?
21 MR. REPKA: What's that -- that's the work 22 that has been done to date. The data set has already 23 been published. It's been presented to the NRC.
24 JUDGE KARLIN: Right.
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149 1 report that completes all the analysis of that data 2 will be completed by December 2010.
3 JUDGE KARLIN: So there's some report that 4 PG&E is going to issue by December 2010 covering the 5 Shoreline Fault study; right?
6 MR. REPKA: Correct, and --
7 JUDGE KARLIN: Now, the next sentence 8 says, "The rest of the tectonic modeling for the 9 Central California region is due to be completed in 10 2012."
11 What's that?
12 MR. REPKA: There have been some proposals 13 to do some additional work.
14 JUDGE KARLIN: And you are in fact doing 15 them, as I understand this letter says.
16 MR. REPKA: Well, the proposals for the 17 work that have been done relate to some offshore sea 18 bed monitoring as well as some 3-D seismic studies 19 which are based on -- a lot of the data generated to 20 date is all from land-based sonar stations to the 21 east.
22 JUDGE KARLIN: Right. Right. Land-based.
23 MR. REPKA: Would look at it from some 24 stations that don't presently exist west of the site.
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150 1 the so-called 3-D studies, are currently the subject 2 of an application PG&E may have before the CPUC for 3 funding and --
4 JUDGE KARLIN: No, no, no. Let me just 5 ask. Because then there's this next sentence 6 that's -- there's some study that's due to be 7 complete, this memo says, in 2012. And then the next 8 sentence talks about "Barbara Byron from the 9 California Energy Commission asked if three-10 dimensional imaging studies as recommended by CEC are 11 going to be performed. PG&E stated it is looking into 12 funding for this project and, if funded, would extend 13 the Central California study to 2013."
14 So is -- so the three-dimensional imaging 15 -- so that's a different element to the studies, 16 three-dimensional?
17 MR. REPKA: The 3-D refers specifically to 18 the sonar stations to the west.
19 JUDGE KARLIN: Oh, okay. So the 3-D is 20 the same. And are any of those probabilistic risk 21 assessments?
22 MR. REPKA: All of those are data-23 gathering efforts --
24 JUDGE KARLIN: Oh, okay.
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151 1 deterministic and probabilistic assessments. So 2 the. -- and I think all of this illustrates exactly how 3 this issue is being addressed today as part of an 4 ongoing regulatory process the LTSPU alluded to is 5 actually required by this very unique Diablo Canyon 6 license condition and will go on throughout the 7 operating life of the plant.
8 So all of those studies are continuing or 9 at least PG&E is-seeking funding for the additional 10 work. But what we have before us right now is what 11 was presented in January. It's reported in the 12 document that the Mothers for Peace are relying upon.
13 And certainly what that shows is that from a current 14 licensing basis perspective, everything we know is 15 that it's bounded by the design basis earthquake on 16 the Hosgri. So all of the statements we've heard this 17 morning about this is a terrible, horrible risk are 18 based upon nothing. It's -- all of the information to 19 date shows that we are bounded by the current 20 licensing basis.
21 So that brings us to the question of the 22 SAMA. Is this -- if this contention is about the 23 current licensing basis of the plant, it's clearly out 24 of scope of license renewal. It's not --
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152 1 ask you about that. I have a problem with that 2 proposition. You sort of -- let's look at Turkey 3 Point, the Commission's decision, COI 01-17. And on 4 page 13, it says -- 54 NRC 3 at page 13 -- I will 5 quote: "The Commission's AEA review under Part 54 6 does not compromise or limit NEPA." Going down 7 further, "Two inquiries are analytical separate. One, 8 Part 54, examines radiological health and safety while 9 the other, Part 51, examines environmental health 10 effects of all kinds. Our aging-based safety review 11 does not in any sense restrict NEPA or drastically 12 narrow the scope of NEPA."
13 As I read that -- and I think other 14 sources would support -- the NEPA review is not 15 restricted to current licensing basis. It applies to 16 any environmental impacts that might be associated 17 with continuing the operation of a facility for 18 another 20 years.
19 MR. REPKA: Correct.
20 JUDGE KARLIN: So why do you keep saying 21 that this NEPA contention must be restricted to the 22 current licensing basis or not --
23 MR. REPKA: I actually didn't say that.
24 I said if the contention was about the current 25 licensing basis, it would be precluded.
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153 1 JUDGE KARLIN:. Why does the current 2 licensing basis got anything to do with it?
3 MR. REPKA: Well, if the contention is 4 about NEPA --
5 JUDGE KARLIN: Right.
6 MR. REPKA: -- the NRC and the. generic 7 environmental impact statement has already looked at 8 both design basis and severe accident risk, which 9 includes seismic risk.
10 JUDGE KARLIN: Oh, that -- you're talking 11 about the GEIS?
13 JUDGE KARLIN: Okay. Well, that's a 14 different issue.
15 MR. REPKA: Correct. I understand that.
16 And the -- and has concluded that both are Category 1 17 issues with small environmental impacts. So that 18 portion of NEPA is already satisfied. So the one 19 remaining NEPA obligation is the so-called SAMA 20 analysis that's required by 51.53 sub whatever it is.
21 So to the extent this contention is 22 focused on SAMA, that's -- that's potentially in 23 scope. But the problem with the contention as it 24 relates to SAMA is it's not based on anything. It 25 doesn't satisfy the case law and the requirements for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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154 1 a sufficient SAMA contention.
2 JUDGE ABRAMSON: Okay. Let's go down that 3 for a second, Mr. Repka, because as I see this, this 4 is purely a SAMA -- purely a question of is NEPA 5 satisfied in respect to the license renewal and the 6 only issue that NEPA -- that regards NEPA in the 7 license renewal is the Commission's edict that if you 8 didn't do SAMA when you got your first license, you've 9 got to do it -at license renewal. So you've got to do 10 SAMA analysis and -- so let's take that as our 11 starting point.
12 MR. REPKA: Right, and I agree with that 13 starting point.
14 JUDGE ABRAMSON: There's an assertion that 15 the SAMA analysis that's been done -- that the ER is 16 insufficient but the only way it can be insufficient, 17 because it's ultimately the Staff's obligation to do 18 an EIS. The only way the ER can be insufficient is if 19 there was an omission or an insufficiency in the SAMA 20 analysis, and the assertion here is that the SAMA 21 analysis doesn't -- if I heard this correctly --
22 doesn't incorporate the potential effect of the 23 Shoreline Fault.
24 Right? And I think I heard the Staff --
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155 1 needs to be modified to address the effects of the 2 Shoreline Fault. Whether or not that means redoing --
3 whether or not that means there's an omission -- it 4 seems to me the Staff would be saying there's an 5 omission because the ER doesn't address the effect.
6 It doesn't mean they're. not encompassed by the 7 analysis that's already been done. It just means it 8 didn't address it. It might be sufficient to just 9 say, These analyses incorporate the effects because.
10 But that's my impression.
11 Am I off-base on that?
12 MR. REPKA: No. I think that's my 13 impression of what the Staff is asking for in their 14 brief as well. But we don't have a request for 15 additional information from the Staff, so I can't say 16 for sure that I know what the Staff is seeking. I 17 think the important thing, though, is the RAI process 18 will go on.
19 JUDGE ABRAMSON: Right.
20 MR. REPKA: That's the important part of 21 the licensing review. And we do know from well-22 established case law that an RAI, which presumably 23 this will be, is alone not sufficient for a 24 contention. The intervenor, the Petitioner, has the 25 burden to identify something specific themselves based NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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156 1 upon some expertise.
2 And that's particularly true with respect 3 to a SAMA contention, and we've cited some of those 4 decisions in our brief that say with respect to the 5 SAMA contention, the Petitioner has to show some 6 specific deficiency, how it could relate to some 7 specific mitigation alternative, how that -- the 8 averted risk benefit would change and how that 9 mitigation alternative might be -- might now be 10 justified, whereas it's not in the SAMA analysis of 11 record.
12 We have none of that. And I think, you 13 know, one case that sticks out in my mind as I read it 14 is an Indian Point decision that's 68 NRC 43. It's a 15 Licensing Board decision, but it's on admissibility of 16 a SAMA contention and it's New York State 14 and 15 in 17 particular. But I was fairly struck by how the 18 Licensing Board rejected that contention for precisely 19 the reason that the contention was purely speculation 20 that we have -- there's no information on this 21 particular seismic risk -- and it was a seismic 22 contention -- but nothing more to show how that would 23 alter the SAMA evaluation of record.
24 So that's why when we wrote -- you know, 25 I think that's the standard and that's where the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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157 1 contentions fail. When we wrote --
2 JUDGE KARLIN: Well, let me ask you on 3 that question, if I may. We look at page 14 and 15 of 4 your brief, and I think at 15 you talk about the 5 Indian Point -- and I had a question about that. On 6 14, you start the paragraph on page 14 with, "At its 7 most basic, the contention is an impermissible 8 challenge to the. CLB."
9 And I don't think it's a challenge to the 10 CLB. It's a challenge to the adequacy of an ER. And 11 as I think --
12 MR. REPKA: If it --
13 JUDGE KARLIN: Is it a challenge to the 14 CLB?
15 MR. REPKA: Everything I've heard this 16 morning says no.
17 JUDGE KARLIN: No.
18 MR. REPKA: And that's --
19 JUDGE KARLIN: Well, that's what you just 20 said it is.
21 MR. REPKA: So, you know, certainly no 22 contention could be admitted that says that it's a 23 challenge to the CLB. If it's a challenge to the SAMA 24 evaluation --
25 JUDGE KARLIN: No, no, but let me ask you.
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158 1 "At its most basic, the contention is an impermissible 2 challenge to the CLB." Do you think this 3 environmental contention challenging the adequacy of 4 the ER is a challenge to the CLB?
5 MR. REPKA: To the extent that the 6 contention -- even some of the rhetoric this morning 7 has been directed at the issue of seismic risk being 8 very important to the safe operation of Diablo Canyon.
9 That would be a challenge to the CLB. And that's 10 being addressed today.
11 JUDGE KARLIN: But that's not what the 12 contention -- the adequacy -- it's a NEPA issue.
13 MR. REPKA: I --
14 JUDGE KARLIN: It's not a safety issue.
15 MR. REPKA: I can only respond to some of 16 the rhetoric in the contention and in the--
17 JUDGE KARLIN: So let's go to the Indian 18 Point quote on page 15. You're talking about, for 19 example, Indian Point proceeding LBP decision, and I 20 will read in the middle: "The Board rejected the 21 proposed contention in part because the Petitioner 22 failed to explain why the. most recent information was 23 sufficiently different from earlier data." So it 24 wasn't a matter that it was outside of the scope. It 25 was just simply that they didn't explain why their NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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159 1 information was different.
2 Is that a qualitative difference as 3 opposed to simply a scope difference?
4 MR. REPKA: No. It's a qualitative and 5 quantitative difference to the outcome of the SAMA 6 evaluation. So if we're focused on a SAMA evaluation, 7 the contention doesn't even engage the SAMA evaluation 8' as presented in the environmental report. There's --
9 it acts as if it doesn't exist. And, in fact, there's 10 a fairly detailed SAMA evaluation based upon a 11 probabilistic assessment of the seismic risks~at 12 Diablo Canyon. It looks at specific -- very specific 13 seismic mitigation alternatives and concludes, based 14 on the PRA, that none of those are cost-justified and, 15 in fact, none of those are cost-justified by a very 16 wide margin.
17 JUDGE ABRAMSON: Mr. Repka, if we take 18 Mothers for Peace' assertion to be that nothing in the 19 ER says anything about -- about Shoreline Fault and, 20 therefore, it's an omission I think is what the --
21 what I hear the Staff to be saying, that -- is that 22 not an admissible contention?
23 MR. REPKA: No. I don't think that alone 24 is sufficient. I think it has to say -- it has to be 25 something again material to the outcome. The Mothers NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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160 1 for Peace talk about this EC Regulation 40 CFR 15.022 2 as well as a couple of cases but, just to' address 3 that, that regulation talks about incomplete and 4 unavailable information needs to be addressed if it's 5 relevant to reasonably foreseeable significant adverse 6 impacts.
7 Well, everything we know based upon the 8 evaluations to date are this is not going to lead 9 to--
10 JUDGE ABRAMSON: But did the ER address 11 that?
12 MR. REPKA: It certainly addressed the 13 profile -- the long-term seismic program -- seismic 14 profiles of plants. We know that the Hosgri bounds 15 the Shoreline Fault.
16 JUDGE ABRAMSON: I'm sorry. Does the ER 17 say that the Hosgri -- the date that's used in that 18 ERA bounds inclusion of anything from the Shoreline 19 Fault? Does the ER say that?
20 MR. REPKA: The ER doesn't say that but it 21 includes an uncertainty evaluation, a sensitivity 22 evaluation to address --
23 JUDGE ABRAMSON: Oh, I don't doubt -- I 24 don't even think it's relevant whether or not it says 25 those sorts of things. If it were a contention of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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161 1 omission that the ER doesn't address the Shoreline 2 Fault, that seems to me to be in and of itself -- you 3 don't know if it's material if you didn't address it.
4 Now, it may be immaterial if addressed.
5 But it sounds to me like it's asserted that it wasn't 6 even addressed.
7 MR. REPKA: I think that's -- would be 8 inconsistent with the Commission's line of cases on 9 SAMAs that says you need to do more than plead Issue 10 X was not addressed. You have to show is there some 11 particular mitigation alternative that would be 12 impacted if you considered X. You have to show -- I 13 think the words in the cases were "some reasonable 14 notion" of what are the costs impact of that, what are 15 the averted risk benefit of that, and we have none of 16 that.
17 JUDGE ABRAMSON: Well, unfortunately, I'm 18 not sure that I can agree with your assessment of the 19 Commission line of cases given what happened in CLR 20 10-11 where the majority of the Board reached a 21 conclusion that something was unnecessary vis-a-vis 22 SAMA analysis because it was bounded by other stuff, 23 and the Commission came back and said, Do it, but 24 maybe I'm misreading 10-11. I'd appreciate your input 25 on that.
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162 1 MR. REPKA: Well, I think that goes to the 2 point that in that decision, the Commission was also 3 very clear that a SAMA evaluation isn't a science 4 project. It's not a research project.
5 JUDGE ABRAMSON: Absolutely.
6 MR. REPKA: It's not trying to capture, 7 you know, future results that may come in. We have 8 the best available information. The SAMA evaluation 9 included in the environmental report was based upon 10 the seismic profiles based on the long-term seismic 11 program data which is the best available bounding 12 information, applied an uncertainty, and we feel like 13 that evaluation does precisely what -- I mean, the 14 Mothers for Peace cite as a NEPA standard Colorado 15 Environmental Coalition v. Dombeck, and that says that 16 the standard for an environmental analysis is that it 17 must constitute a reasonable good-faith presentation 18 on the best information available under the 19 circumstances. And I think that's precisely what the 20 SAMA evaluation is. And, in fact, the court in that 21 case actually upheld the Forest Service's analysis.
22 So on the facts of that standard, we think 23 we're very much like that case.
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163 1 whether this contention is admissible, not whether 2 they're right.
3 MR. REPKA: No. It's --
4 JUDGE KARLIN: How do we distinguish --
5 MR. REPKA: It's a question of whether 6 there's sufficient basis to generate a genuine dispute 7 on a material issue.
8 JUDGE KARLIN: And they've presented the 9 research information letter, the discovery of the 10 Shoreline Fault, the fact that PG&E and USGS and 11 perhaps even NRC are actively investigating and have 12 reallocated resources to go after this Shoreline Fault 13 issue quite actively it seems like as being the 14 supporting information to show that this is something 15 that's relevant and might be -- might be relevant at 16 least to get a contention in.
17 MR. REPKA: But simply said, there's an 18 ongoing issue between the NRC and PG&E. Therefore, 19 there's a contention.
20 JUDGE KARLIN: No, no. They didn't say 21 that.
22 MR. REPKA: They've offered -- well, I 23 think that's how I would characterize it, and they've 24 offered no independent expertise.
25 JUDGE KARLIN: Well, wait a second.
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164 1 MR. REPKA: They've offered no --
2 JUDGE KARLIN: Is there any -- wait a 3 second. Is there any requirement in any reg. or any 4 case that they provide an expert opinion?
5 MR. REPKA: There is requirement for 6 support.
7 JUDGE KARLIN: All right. And is there 8 any requirement that they provide an expert opinion?
9 MR. REPKA: Not specifically.
10 JUDGE KARLIN: Is there any requirement 11 that they provide a substantive affidavit?
12 MR. REPKA: No, but they have --
13 JUDGE KARLIN: Okay.
14 MR. REPKA: -- to demonstrate the 15 existence of a genuine dispute.
16 JUDGE KARLIN: Yes. Yes.
17 MR. REPKA: And that's 18 JUDGE KARLIN: Sufficient information to 19 support a genuine dispute. But there's nothing 20 requiring an expert opinion and there's nothing 21 requiring substantive affidavits, so I think that 22 portion of your brief just troubles me because that 23 just simply is a strawman.
24 JUDGE ABRAMSON: But let's come back to 25 what I see as a pretty fundamental and straightforward NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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165 1 issue to deal with, which is I think what I hear you 2 saying, Mr. Repka, is that PG&E's convinced that the 3 data that you have bound whatever would be allocated 4 from those local seismic profiles to the Shoreline 5 Fault and that, therefore, the PRA that's been done 6 encompasses the effects of the Shoreline Fault but 7 that the ER says nothing about the Shoreline Fault.
8 Is that an accurate characterization essentially?
9 MR. REPKA: The ER says nothing about the 10 Shoreline Fault. The PRA that's in the ER with the 11 sensitivity analysis to address uncertainty would 12 bound a SAMA evaluation that would include the 13 Shoreline Fault probabilistic profile.
14 JUDGE ABRAMSON: So --
15 MR. REPKA: As mentioned earlier, that the 16 Staff's question seems to be what about the 17 probability and what would be the contribution to the 18 core damage frequency and, you know, all of that is 19 not specifically addressed, but the fact is it -- our 20 position is that we think at the end of the day the 21 SAMA evaluation would lead to exactly the same 22 results, given the uncertainty in the probabilistic 23 analysis and the wide margin on the actual seismic 24 mitigational --
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166 1 effective SAMA. The cost gap for the --
2 MR. REPKA: Correct. When I refer to the 3 margins, the cost versus risk benefit.
4 JUDGE ABRAMSON: Okay. So it would -- if 5 we were to admit a contention of omission, it would be 6 relatively straightforward for PG&E to provide a 7 supplement to the ER or a minor amendment to the ER 8 which addressed this question and then -- and then it 9 would be a question of whether the contention was moot 10 or not.
11 MR. REPKA: Yeah. Without trivializing 12 the words --
13 JUDGE ABRAMSON: I don't mean to 14 trivialize it.
15 MR. REPKA: -- it would go into the 16 analysis. The act of supplementing whether it be 17 responding to an NRC Staff RAI and putting it into a 18 record, yes, that would be a straightforward task. I 19 have no doubt about that.
20 JUDGE ABRAMSON: Okay. So let's come back 21 then to what I hear your argument for why we should 22 not follow the Staff's suggestion that there be a 23 narrower admitted contention that says the ER is 24 insufficient because it doesn't deal with the 25 Shoreline Fault, and that is -- your argument would be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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167 1 the requirement for- any contention's admissible 2 ability is that it must demonstrate genuine issue --
3 a material -- a genuine material issue of disagreement 4 with the application.
5 MR. REPKA: Related to the SAMA 6 evaluation.
7 JUDGE ABRAMSON: Right, related to the 8 SAMA evaluation. And that because it is a general 9 assertion of omission to consider this, without any 10 indicia that if it had been considered, it would be 11 material; i.e., it might make the next SAMA cost 12 effective, it should be not admitted? Is that -- am 13 I hearing that right?
14 MR. REPKA: Correct. If the NEPA standard 15 is, as the Mothers for Peace asserts, whether it's 16 necessary to make a reasoned choice among feasible 17 alternatives, then it has to have some basis to say 18 that and we don't think there is that basis to show 19 that it's going to make a difference in terms of 20 choosing mitigation alternatives.
21, JUDGE ABRAMSON: And recent cases at both 22 the Board and at the Commission level addressing SAMAs 23 would support that view? Can you give me a cite?
24 Because the one on Platwith (ph) doesn't make me feel 25 that way.
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168 1 MR. REPKA: I think those are the cases we 2 cited in our brief. If you could bear with me a 3 second. And I mentioned Indian Point, which is a 4 Licensing Board decision, and I think that decision is 5 actually On all fours.
6 I apologize. My papers are out of order 7 right now.
8 JUDGE KARLIN: Join the boat.
9 MR. REPKA: Correct. Commission decision 10 in McGuire/Catawba license renewal, COI 02-17, that we 11 characterize as saying that -- in fact, if the 12 petitioner in that case proposed an additional 13 mitigation alternative needed to be considered, and 14 the Commission said there had to be some notion, some 15 basis to conclude that that alternative was credible, 16 that it could possibly be cost effective and so, 17 therefore, there wasn't a sufficient basis to admit a 18 contention on a SAMA. So I think that case was --
19 that case, the petitioner even offered more because 20 they identified a specific alternative, a mitigation 21 alternative.
22 Here, we have no mitigation alternative.
23 We just have a -- a seismic concern.
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169 1 decision.
2 JUDGE TRIKOUROS: That deterministic 3 analysis, if I remember correctly in the research 4 information document, picked 84th percentile, I think, 5 didn't it, the one standard deviation?
6 MR. REPKA: It did. And I believe that's 7 a licensing basis case, a design basis case.
8 JUDGE TRIKOUROS: Yes. The difference 9 between that -- and I understand why they picked that, 10 but the difference between that and a probabilistic 11 analysis would be that there -- that in probabilistic 12 space, there's a 16 percent chance that the earthquake 13 would actually be greater than the current licensing 14 basis?
15 MR. REPKA: Right. Well, the 16 probabilistic case in the -- I want to say that SAMA 17 is still based on an 84th percentile, but the 18 sensitivity is on a 95 -- 95th percentile 19 probabilistic analysis.
20 JUDGE KARLIN: Okay. I think that's all 21 the questions we have, Mr. Repka. Thank you.
22 We'll now ask Staff. We are now at 12:20.
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170 I lunch.
2 Mr. Subin.
3 MR. SUBIN: Yes.
4 JUDGE KARLIN: You're going to present --
5 MR. SUBIN: Right.
6 JUDGE KARLIN: -- answer questions on 7 this. Okay. Good. Let me get my notes together, if 8 I may. Let me go to your answer at page 28. This is 9 I believe where you talk about that you don't object 10 to admission of part of this contention.
11 MR. SUBIN: That's correct.
12 JUDGE KARLIN: "Staff has no objection to 13 admission of a limited part of Proposed Contention EC-14 1." And then you propose on page 29, "The Staff 15 believes as to the discussion of the Shoreline Fault 16 the following has been omitted from the environmental 17 report." One, two, three -- you list some things.
18 And aren't you getting to the merits? It 19 seems to me that the contention is that SAMA is 20 inadequate.
21 MR. SUBIN: Correct.
22 JUDGE KARLIN: And one of the bases --
23 perhaps the basis -- I don't like that word, but the 24 support for that is, Well, they need to do a 25 probabilistic risk assessment. They haven't done NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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171 1 that. And that's really key and that's important and 2 that's standard or that's required or whatever. But 3 a PRA is what needs to be done. And that's their 4 contention.
5 And you say, Oh, no, no, no. A PRA 6 doesn't need to be done. Something less than that 7 will be sufficient. Now, aren't you arguing about --
8 they're arguing it's inadequate and they give you.a 9 reason why they think it's inadequate -- give us a 10 reason why they think it's inadequate and you say, 11 Well, that may be right that it's inadequate but it's 12 inadequate in a different way and if they just fill in 13 these three -- one, two, threes, everything will be 14 fine.
15 MR. SUBIN: Because this is a contention 16, of omission, we felt --
17 JUDGE KARLIN: Well, no, no, no. Is it a 18 contention of omission? It's an inadequacy, that the 19 PRA is inadequate --
20 MR. SUBIN: It's inadequate in that we 21 don't know whether they considered it or not.
22 JUDGE KARLIN: Yeah. Okay.
23 MR. SUBIN: It may appear that they 24 haven't considered it, but we need to know these 25 things --
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172 1 JUDGE KARLIN: Right.
2 MR. SUBIN: -- to even know if there was 3 an omission or not. We don't know if there's an 4 omission and these are the things that would have to 5 be considered.
6 JUDGE KARLIN: Right.
7 MR. SUBIN: And that was just part of the 8 explanation.
9 JUDGE KARLIN: Well, those are the things 10 you think need to be considered.
11 MR. SUBIN: Right.
12 JUDGE KARLIN: And it may -- it doesn't 13 seem like what they think needs to be considered.
14 MR. SUBIN: When you say "they" --
15 JUDGE KARLIN: "They," the San Luis Obispo 16 Mothers for Peace.
17 MR. SUBIN: Mothers for Peace. Correct.
18 JUDGE KARLIN: And so if we admitted a 19 narrowed contention and the Applicant filled in those 20 three blanks, one, two, three, isn't that just--
21 wouldn't the San Luis Obispo Mothers for Peace simply 22 come and say, Well, it's inadequate.
23 MR. SUBIN: Well, they're saying it's 24 inadequate because they think we need a whole new --
25 JUDGE KARLIN: Need a PRA.
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173 1 MR. SUBIN: -- a new PRA. There already 2 is a PRA in--
3 JUDGE KARLIN: Well, no, no, a new PRA, a 4 PRA that deals with -- has there been a PRA that deals 5 with the Shoreline Fault?
6 MR. SUBIN: There's a SAMA analysis that 7 deals with it.
8 JUDGE KARLIN: Okay.
9 MR. SUBIN: And --
10 JUDGE KARLIN: Has there been a 11 probabilistic risk assessment on the Shoreline Fault?
12 That's what I'm asking.
13 MR. SUBIN: No. We haven't seen one. The 14 SAMA analysis. Right.
15 JUDGE KARLIN: Right. Well, look at 16 research information letter 09-001, the first page.
17 I'm looking at this and there's an attachment by the 18 Petitioner at page nine or referenced by the 19 Petitioner at page nine and it's preliminary 20 deterministic analysis, and the word "preliminary" 21 appears seven times on the first page. Who did that?
22 Who wrote this?
23 MR. SUBIN: That was written by one of our 24 staff members.
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174 1 wrote this.
2 MR. SUBIN: Correct.
3 JUDGE KARLIN: And --
4 MR. SUBIN: I don't believe her name is on 5 it. I'm not -- it should be Annie Cameron (ph). Is 6 it on -- I think she's the point of contact at the end 7 or something.
8 JUDGE KARLIN: I don't see any name on 9 this document.
10 MR. SUBIN: Okay. But that's done by the 11 Staff.
12 JUDGE KARLIN: Okay.
13 MR. SUBIN: Yes.
14 JUDGE KARLIN: And page -- it says -- the 15 conclusion -- I'll read it -- "This preliminary 16 assessment indicates that the best estimate 84th 17 percentile deterministic seismic loading levels 18 predicted for a maximum magnitude earthquake on the 19 potential Shoreline Fault are slightly below those 20 levels for which the plant was previously analyzed in 21 Diablo Canyon Long-Term Seismic Program."
22 All right. So it's slightly below?
23 MR. SUBIN: Right. That's what it states.
24 JUDGE KARLIN: Do you have that document 25 in front of you?
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175 1 MR. SUBIN: Not in front of me right now.
2 JUDGE KARLIN: Okay. On Figure 10 --
3 perhaps you could get it. Do you have it? -- yes.
4 Right. Figure 10 --
5 MR. SUBIN: What page is that on?
6 JUDGE KARLIN: -- of that RIL.
7 MR. SUBIN: Yes. What page did you say 8 that was on?
9 JUDGE KARLIN: It doesn't have a page.
10 It's Figure 10.
11 JUDGE TRIKOUROS: Figures are in the back.
12 MR. SUBIN: Right.
13 JUDGE KARLIN: It's page 22.-- I'm sorry.
14 There is a page.
15 MR. SUBIN: Yes.
16 JUDGE KARLIN: Now, it shows what is the 17 LTPS spectrum. That's the Long-Term Seismic Program 18 Amount?
19 MR. SUBIN: Correct.
20 JUDGE KARLIN: All right. It says it's 21 slightly below those levels for which the plant was 22 previously analyzed in the Long-Term Seismic Program.
23 So we see the solid black line depicting the LTPS 24 spectrum. Then we have four studies that are averaged 25 on the right-hand column as to various deterministic NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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176 1 ground motions and look at the Chiou and Youngs study 2 of '08. Does that study -- slightly higher than the 3 Long-Term Seismic Program?
4 Do you see the piece of --
5 MR. SUBIN: I see that the curve goes up, 6 but I couldn't tell you. I'm not an expert.
7 JUDGE KARLIN: It looks to me that that 8 piece is higher.
9 JUDGE ABRAMSON: I think that's a very 10 technical question.
11 JUDGE KARLIN: Well, --
12 JUDGE ABRAMSON: I don't think we --
13 JUDGE KARLIN: -- I think it's quite plain 14 that it is higher. The only question is what's done 15 in the deterministic study is that they've averaged 16 the four studies that are being -- Abrahmson and Siva, 17 Campbell and Bozorgonia, Chiou and Youngs, and Boore 18 and Atkinson. There are four studies and I read the 19 full report and it says that the average is what 20 you've come up with.
21 JUDGE ABRAMSON: Judge Karlin, first of 22 all, that's a spectral analysis and the effect of 23 earthquakes at different frequencies have different 24 effects. So the fact that it has a higher impact at 25 one particular frequency does not mean the overall NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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177 i effect is higher. So I think it's a very complicated 2 technical question which we shouldn't try to interpret 3 here.
4 JUDGE KARLIN: All right. I appreciate 5 that remark, but I think what I'm trying to ask is 6 when you say "slightly below" those levels, it is very 7 slightly before and, in fact, one study shows it's 8 higher, slightly above.
9 JUDGE ABRAMSON: It doesn't show that.
10 JUDGE KARLIN: Yes, it does.
11 JUDGE ABRAMSON: Okay.
12 JUDGE KARLIN: Now, is that the basis upon 13 which the Staff makes the statement that the Hosgri 14 study is bounding of the Shoreline Fault?
15 MR. SUBIN: I'm not sure. I couldn't tell 16 you.
17 JUDGE KARLIN: Is that what you say in 18 your brief?
19 MR. SUBIN: Let me ask Staff.
20 JUDGE KARLIN: All right.
21 (Pause.)
22 MR. SUBIN: The only way I can answer is 23 that this is a deterministic analysis that the Staff 24 uses for operating --
25 JUDGE ABRAMSON: Counselor, let me --
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178 1 JUDGE KARLIN: No, no. I want him to 2 answer the question.
3 JUDGE ABRAMSON: I don't think he's 4 capable of answering the question. Let me get to that 5 point. Are you an attorney?
6 MR. SUBIN: Yes.
7 JUDGE ABRAMSON: Are you a scientist?
8 MR. SUBIN: I have no --
9 JUDGE ABRAMSON: Do you know anything 10 about this particular technical topic?
11 MR. SUBIN: No.
12 JUDGE ABRAMSON: And, therefore, are you 13 competent to answer a question about how the Staff 14 reads a particular technical result?
15 MR. SUBIN: No.
16 JUDGE ABRAMSON: Thank you.
17 MR. SUBIN: Not without --
18 JUDGE KARLIN: All right. Well, let me 19 ask this question as an attorney, Mr. Subin. Let's 20 return to page 32 of your brief.
21 MR. SUBIN: Yes.
22 JUDGE KARLIN: Petitioner -- it's at the 23 bottom of the page. "Petitioner cites from the RIL 24 09-001 the meeting summary discussing the fault and 25 the Staff's determination that the updated information NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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179 1 has not changed the conclusion that the Hosgri Fault 2 is bounding."
3 I'm just asking whether this RIL is a 4 basis of the Staff's determination that the Hosgri 5 Fault is bounding? You said that in your brief and 6 I'm just asking if that was a basis --
7 MR. SUBIN: We're really citing what the 8 Petitioner said at that point in time.
9 JUDGE KARLIN: Right. Right. But isn't 10 that what you say in your letter, in your letter of 11 April 8th -- I'm sorry -- the Staff does say that it's 12 bounding, do they not?
13 MR. SUBIN: The Staff says -- the Staff --
14 under the operation of the plant, they have to make 15 sure that it meets its licensing basis. It's not done 16 for license renewal. It's a separate division. It 17 has nothing to do with this hearing as far as we 18 understand, and, yes, they made that statement and I 19 can only -- I cannot interpret it any further than 20 they said it's bounding for purposes of safe 21 operation, that they don't have to shut the plant 22 down.
23 JUDGE KARLIN: Right. Right.
24 MR. SUBIN: That's the only thing I can 25 speak to.
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180 1 JUDGE KARLIN: Right.
2 MR. SUBIN: Is that that's what that's 3 done for and that's -- that's what they're speaking 4 to.
5 JUDGE KARLIN: Right.
6 MR. SUBIN: Now, they may have to do 7 additional studies and those studies may find out 8 other information, but 9 JUDGE KARLIN: Right. But are they doing 10 additional studies?
11 MR. SUBIN: My understanding is yes.
12 JUDGE KARLIN: And what --
13 MR. SUBIN: It's that data program and I 14 think it's referred to in the RIL.
15 JUDGE KARLIN: So the Staff -- has the 16 Staff asked the Applicant to do a probabilistic risk 17 assessment of the Shoreline Fault as it might affect 18 this?
19 MR. SUBIN: Not as it might affect the 20 license renewal application. They may have asked them 21 under the program.
22 JUDGE KARLIN: Okay. Okay.
23 JUDGE TRIKOUROS: I have a question.
24 JUDGE KARLIN: Yeah. Go ahead.
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181 1 believe that we have -- they've -- PG&E have agreed to 2 do it with I guess USGS.
3 JUDGE KARLIN: So you didn't -- the Staff 4 did not --
5 MR. SUBIN: We requested their doing it 6 and--
7 JUDGE KARLIN: But they are doing a 8 probabilistic risk assessment?
9 MR. SUBIN: That's our understanding.
10 JUDGE KARLIN: Is your understanding?
11 MR. SUBIN: That's correct.
12 JUDGE KARLIN: And "they" being the 13 Applicant and --
14 MR. SUBIN: The Applicant and USGS.
15 JUDGE KARLIN: -- USGS.
16 MR. SUBIN: Correct. Under LTSP Program 17 they've agreed.
18 JUDGE KARLIN: Okay. *Thank you.
19 MR. SUBIN: And I think we have it in the 20 brief, so --
21 JUDGE KARLIN: I'm sorry?
22 JUDGE TRIKOUROS: Now, you list the three 23 items that you think are -- were omitted from the 24 environmental report. On -- this is page 29 of your 25 answer.
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182 1 MR. SUBIN: Correct.
2 JUDGE TRIKOUROS: And the first one refers 3 to the impact of the Shoreline Fault on the seismic 4 core damage frequency and off-site consequences. It's 5 an "and." Right?
6 MR. SUBIN: Right.
7 JUDGE TRIKOUROS: Which implies then what?
8 Does it imply then -- the off-site consequences is --
9 are determined, as I understand them, from a Level 3 10 PRA, from the Level 3 of *a PRA. And in order to do 11 that, you need to have -- use the seismic information 12 that would be necessary to do that. That information 13 will not be available for some time.
14 All right. So you're suggesting that the 15 -- that the Applicant come up with some CDF that you 16 would consider conservative and somehow convert that 17 to a--
18 MR. SUBIN: I think we explain that later 19 on, that we said it can do a sensitivity analysis, so 20 they don't need all the information. They just need 21 preliminary information to do that and I think we 22 explained that in our brief.
23 JUDGE ABRAMSON: Counselor, I understand 24 there's some relatively new data that allocates 25 seismicity to this newly discovered Shoreline Fault?
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183 1 This is a January data that we were hearing about 2 earlier. Did the Staff discuss with you while you 3 were determining that this may be a contention of 4 omission how the data on seismicity might be 5 reallocated to permit an assessment of core damage 6 frequently? And, frankly, core damage frequency is a 7 result -- is computed, as I understand it, as a result 8 of the entire seismicity at the site. It doesn't 9 matter what the source is. It's a function of what 10 the seismicity is at the site.
11 JUDGE TRIKOUROS: It's really where I'm 12 going with this.
13 JUDGE ABRAMSON: Yes.
14 JUDGE TRIKOUROS: Is that you're saying 15 you don't need a PRA in your answer but, in fact, the 16 things that you're saying are omitted and need to be 17 provided I don't understand how you get there without 18 doing a PRA. So I'm sort of -- I feel like we're 19 chasing our tail here and I'm not --
20 MR. SUBIN: Well, it would have to be used 21 in accordance with what they've done already on the 22 Hosgri Fault.
23 JUDGE TRIKOUROS: Well, I'm assuming that 24 the PRA for the plant -- and I haven't studied the PRA 25 for Diablo Canyon, the existing PRA -- but I'm NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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184 1 assuming they used a seismic hazard -- seismic hazard 2 curve that was appropriate for the site.
3 MR. SUBIN: Right.
4 JUDGE TRIKOUROS: That seismic hazard 5 curve is now possibly not appropriate for the site, 6 and I would imagine that that would have to be 7 utilized in order to do a PRA that would include Level 8 3 that would include consequences.
9 JUDGE ABRAMSON: Well, Nick, isn't this a 10 SAMA question? Aren't the SAMA computations -- and 11 let me ask you and maybe the Applicant. SAMA 12 computations for this case are going to be done with 13 MACTS-2?
14 MR. REPKA: That's correct.
15 JUDGE ABRAMSON: Okay. MACTS-2 starts 16 from an assumption of release as a function of core 17 damage frequency; right? Core damage frequency is 18 computed from -- this is why you have technical judges 19 -- core damage frequency is computed from the 20 seismicity. The seismicity is a function of what --
21 the seismic activity at the site. They have data on 22 the seismic activity at the site. They've now 23 discovered a new fault. That means the seismic 24 activity at the site is not -- doesn't mean the 25 seismic activity at the site is different. It means NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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185 1 it's now allocable some to the new fault and some to 2 the fault they were working from. So you're not going 3 to do a PRA assuming just the source of core damage 4 frequency from the Shoreline Fault. You're going to 5 do a PRA for the site which assumes -- which uses the 6 seismic activity of the site. Is that not correct?
7 JUDGE TRIKOUROS: That's correct.. So it 8 isn't clear to me, in other words, what you're saying 9 here regarding the -- what has to be provided to cure 10 the omission.
11 JUDGE ABRAMSON: Yeah. That's right.
12 JUDGE TRIKOUROS: And but you do go on to 13 say that you don't need a PRA.
14 MR. SUBIN: Right.
15 JUDGE TRIKOUROS: And I can find that for 16 you somewhere here.
17 JUDGE ABRAMSON: But the fact is you can't 18 do the SAMA analysis without using MACTS which is 19 essentially a PRA.
20 JUDGE TRIKOUROS: Right. Exactly. You 21 say "because precise quantification using state-of-22 the-art PRA methods is not needed to complete the SAMA 23 analysis." Well, in order to do the end consequence 24 as part of your omission, you need -- you do need 25 to --
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186 1 MR. SUBIN: Many plants have missing 2 information from their seismic profile.
3 JUDGE TRIKOUROS: Just one moment.
4 JUDGE KARLIN: Are we in the merits?
5 JUDGE ABRAMSON: No. We're not. We're 6 trying to understand what the needs are. We're trying 7 to understand what is being proposed by the Staff.
8 (Pause.)
9 MR. REPKA: Judge Karlin, --
10 THE REPORTER: I can't pick that up.
11 JUDGE KARLIN: All right. That doesn't 12 need to be in the record.
13 THE REPORTER: Thank you.
14 (Pause.)
15 MR. SUBIN: Okay.
16 JUDGE KARLIN: Yes, Mr. Subin.
17 MR. SUBIN: Okay. There's a PRA in 18 existence that they will have to update and use this 19 information as we've explained before. SAMA is based 20 on only the available information. We don't ask the 21 Applicant, you know, to do new -- you know, a new 22 study for SAMA, you know, the SAMA analysis, so if 23 they have a bounding analysis already, all we're going 24 to ask them for is that new information to see if it's 25 still bounded.
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187 1 Now, if it's not bounded, other things 2 will happen, and I think we've also alluded to that.
3 There's also different levels of rigor that we do when 4 we do the analysis. It doesn't have to be state-of-5 the-art. I think we've also cited that in our brief.
6 And I don't know if that answers your question but --
7 JUDGE TRIKOUROS: So you have said that 8 they would have to update their existing PRA?
9 MR. SUBIN: Right.
10 JUDGE TRIKOUROS: Then that's the answer.
11 JUDGE ABRAMSON: That would be the form of 12 the omission you're suggesting, Counselor?
13 JUDGE KARLIN: Only one party can -- one 14 lawyer argue at a time.
15 MS. UTTAL: All right.
16 JUDGE KARLIN: Not going to allow double-17 teaming.
18 MR. SUBIN: When I said that they have to 19 update it, they don't necessarily have to have a new 20 PRA and I thought that was understood.
21 JUDGE KARLIN: Okay.
22 MR. SUBIN: They don't need a new PRA.
23 They just need to adjust it as we've said --
24 JUDGE KARLIN: Okay.
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188 1 analysis.
2 JUDGE KARLIN: Okay.
3 MR. SUBIN: I thought I was clear, but my 4 colleague said I wasn't as clear --
5 JUDGE KARLIN: I just have a couple more 6 questions and then maybe we can have lunch after we've 7 had a little bit of rebuttal and Mr. Repka has made 8 his point, but when does the Staff -- I look at the 9 Staff's web page of May-20th, 2010 -- and I know this 10 is not in the record -- but it may be judicial notice 11 -- when does -- the Staff says it's going to issue a 12 draft supplemental environmental impact statement on 13 October 15th of this year and then a final SEIS on 14 August 12th of 2011. Has -- is that a valid time 15 frame?
16 MR. SUBIN: Those are dates that -- it 17 doesn't mean that that's going to be the exact dates.
18 JUDGE KARLIN: I understand it's not exact 19 dates, but I'm trying to put into perspective whether 20 the Staff currently thinks --
21 MR. SUBIN: My staff tells me at this 22 point in time it looks like the dates that we're going 23 to have everything out by.
24 JUDGE KARLIN: So those dates still stand.
25 MR. SUBIN: Right.
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189 1 JUDGE KARLIN: I'm trying to put this in 2 perspective of what other studies are being conducted 3 and whether they'll come in within the time frame of 4 this regulatory proceeding or not.
5 Okay. And let me ask on page 33 of your 6 brief -- and I think the Petitioner -- I mean, the 7 Applicant raises the same question -- is you say, 8 "While there will always be more data that could be 9- gathered, agencies must have some discretion to draw 10 the line and move forward with decisionmaking."
11 Is the Petitioner asking this Board to 12 draw the line? Who draws the line? -- the Staff or 13 this Board as to whether or not this additional study 14 needs to be done or not.
15 MR. SUBIN: In terms of deciding what 16 study needs to be done, it's Staff that decides.
17 JUDGE KARLIN: But if you have a 18 contention admitted, it's us that decide that.
19 MR. SUBIN: That would be for you to 20 decide.
21 JUDGE KARLIN: Yeah.
22 MR. SUBIN: But I don't know --
23 JUDGE KARLIN: That's what we do. We 24 decide whether we decide.
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190 1 specifically -- we're the decisionmakers in this case.
2 JUDGE KARLIN: The Agency is.
3 MR. SUBIN: The Agency is.
4 JUDGE KARLIN: And we are part of the 5 Agency.
6 MR. SUBIN: And that's --
7 JUDGE KARLIN: For better or for worse.
8 Okay. That's all.
9 JUDGE ABRAMSON: I just want to come back 10 one more time to what seems to me to be a fundamental 11 question here. I understand what the Petitioners are 12 arguing. I want to understand more precisely what the 13 Staff thinks should be admitted here. Is the Staff 14 suggesting that this is a contention of omission 15 because the ER does not address -- does not address 16 the Shoreline Fault and it needs to say something 17 about it, or what is the Staff's view of what is.
18 omitted here?
19 MR. SUBIN: Well, I think we summed it up 20 in the way we drafted the contention. What we're 21 looking for is something from them that basically 22 tells us that they considered it. We don't know 23 whether they have or not, as to whether it's in 24 consideration, and that's why we drafted the 25 contention.
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191 1 JUDGE KARLIN: Okay.. Thank you, Mr.
2 Subin. Why don't we give Mr. Repka one point. There 3 you go. And you can't testify and you can't have any 4 evidence.
5 JUDGE ABRAMSON: You'd better respond to 6 your question, Buster.
7 JUDGE KARLIN: Now I'm going to get it.
8 MR. REPKA: I am a lawyer, not a 9 psychologist. That's my --
10 JUDGE KARLIN: All right.
11 MR. REPKA: . There were some questions, 12 Judge Karlin, about Figure 10 from RIL 09-001.
13 JUDGE KARLIN: Right.
14 MR. REPKA: And the point of clarification 15 I would like to make is that shows -- figure shows the 16 LTSP response spectrum. The LTSP response spectrum is 17 not the design basis response spectrum for Diablo 18 Canyon. The Hosgri spectrum is the design basis 19 response spectrum, at-least at most frequency ranges.
20 And the relationship between the two can be seen in 21 Figure 14 in the same report.
22 But the LTSP spectrum was well bounded by 23 the Hosgri, and we did include a little bit of a 24 primer on the design basis, the unique design basis 25 for Diablo Canyon in Footnote 6 of our brief.
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192 1 JUDGE KARLIN: All right.
2 JUDGE TRIKOUROS: And the PRA I'm assuming 3 utilized the Hosgri seismic response spectrum?
4 MR. REPKA: Correct.
5 JUDGE TRIKOUROS: The existing PRA.
6 MR. REPKA: I believe that's correct. If 7 it's not, I'll come back and let you know.
8 JUDGE KARLIN: If we let you. Okay. Ms.
9 Curran.
10 (Pause.)
11 Well, Ms. Curran, we're trying to think 12 whether we have any specific questions for you in 13 rebuttal. Let me just look at my notes. I certainly 14 would ask -- you've seen the response to the Staff.
15 Do you have any comments on the three items that they 16 indicate there?
17 MS. CURRAN: Well, just one overall 18 comment, which is that what's sauce for the goose 19 should be sauce for the gander. In the Pilgrim case, 20 an intervenor came in and criticized the SAMA analysis 21 because they said this PRA here doesn't give us an 22 accurate picture of what the risks are of a -- I can't 23 remember what kind of a severe accident it was. And 24 the Commissioners said, PRA is our standard way of 25 doing things. And what I'm hearing here is we've got NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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193 1 some ways we can fudge this because nobody wants to 2 wait until we get all the information and finish and 3 do a good job of this. And I just think that is -- it 4 boils down that, and that is the heart of our 5 contention, that what Staff is saying is, Give us some 6 information. We've got this preliminary study out 7 there. We can use something from that. We have some 8 data that we -- you know, we have in hand. You can 9 use that and pUt it into the PRA that you've got.
10 But we also have this letter that's cited 11 in our contention where the Staff says, We are waiting 12 to get the results of a regional study that includes 13 the Hosgri Fault, that includes the Shoreline Fault, 14 and we're going to take that and we're going to put 15 that into a revised PRA. The last one we did was 16 1988. And now we have one coming up in just a few 17 years. And what is being proposed at this license 18 renewal proceeding is let's do whatever we can do 19 without waiting, do the best we can with what we have, 20 and not wait to do the job we said we were -- started 21 out to do because that would take too long and we'd 22 like to get this decision over with before we get the 23 information. I just -- I think that is the heart of 24 our contention and that's the issue that we'd like to 25 get admitted.
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194 1 JUDGE KARLIN: Any questions? All right.
2 Thank you, Ms. Curran. All right. We're going to 3 take a break now. I have it as 12:45. We will take 4 a one-hour lunch break --
5 JUDGE ABRAMSON: One hour?
6 JUDGE KARLIN: -- and reconvene at --
7 JUDGE ABRAMSON: Twenty minutes.
8 JUDGE KARLIN: Twenty minutes?
9 JUDGE ABRAMSON: Thirty minutes.
10 JUDGE KARLIN: Well, we'll give you an 11 hour. One forty-five we will reconvene and talk about 12 contention EC-2. Thank you. We are adjourned.
13 (Whereupon, at 12:45 p.m., the proceedings 14 recessed for lunch, to resume at 1:45 p.m. this same 15 day.)
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195 1 AFTERNOON SESSION 2 --000--
3 JUDGE KARLIN: Please be seated. The 4 Atomic Safety and Licensing Board will now go back on 5 the record. And I believe we are now at Contention --
6 Environmental Contention Number 2.
7 Let me get my materials organized and we 8 will begin. Ms. Curran, yes.
9 MS. CURRAN: Should I start by reading the 10 contention again?
11 JUDGE KARLIN: Yeah. That would be goo.d.
12 Yes, please. What is the contention?
13 MS. CURRAN: Okay. The contention reads, 14 "PG&E's environmental report is inadequate to satisfy 15 NEPA because it does not address the airborne 16 environmental impacts of a reasonably foreseeable 17 spectrum of spent fuel pool accidents, including 18 accidents caused by earthquakes."
19 And this is one of the contentions that's 20 supported by a waiver petition.
21 JUDGE KARLIN: So on this contention, as 22 I understand it, the Mothers for Peace concede that a 23 waiver is necessary in order for this contention to be 24 within the scope?
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196 1 a regulation that forbids consideration of the impacts 2 of storage during the license renewal term.
3 JUDGE KARLIN: Right. And so I think we 4 thought it might be best to focus on the waiver issues 5 as sort of a threshold before this contention, so I 6 think we're going to try to focus our questions on 7 that.
8 You're seeking a waiver from Appendix B to 9 Part 51 of the NRC Regs., among other things; right?
i0 And Appendix B to Part 51 is based on the 1996 generic 11 environmental impact statement, GEIS; right?
12 MS. CURRAN: Yes.
13 JUDGE KARLIN: Final. Your petition talks 14 a lot about the 2009 draft GEIS and the Applicant and 15 the Staff say, Well, that's not the basis for the 16 Regs. So what if the draft GEIS is defective or has 17 a problem? That's not relevant to whether or not this 18 Appendix B should be a waiver from Appendix B.
19 How do you respond to that?
20 MS. CURRAN: Well, the '96 GEIS was 21 supposed to be updated ten years later. I don't know 22 where it was. The Commission said they originally 23 planned to update the GES for license renewal every 24 ten years. And of course they didn't get around to 25 renewing it or to updating it until this draft revised NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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197 1 GEIS in 2009 but they did, you know, just a few years 2 afterwards got around to revising it.
3 And if you compare those two environmental 4 impact statements, the '96 GEIS and the 2009 draft 5 revised GEIS, their analyses of the potential for 6 spent fuel pool fire are completely different. The 7 words that the '96 GEIS uses about potential for a 8 pool fire -- and this is on pages 6-72 and 6-75R --
9 "Even under the worst probable- cause of a loss of 10 spent fuel pool coolant (a severe seismic-generated 11 accident causing a catastrophic failure of the pool),
12 the likelihood of a fuel-platting fire is highly 13 remote."
14 Now, if you look at the draft revised 15 GEIS, a lot has happened since 1996. We had NUREG 16 1738 where the NRC Staff admitted for the first time 17 that if spent fuel in a pool is uncovered, it can 18 burn. We also had the NAS report that followed up on 19 that. And then we got security orders by the 20 Commission telling every licensee they needed to 21 modify their spent fuel pools in order to avoid a 22 catastrophic fire.
23 It's become an issue. It's something the 24 Commission learned, changed its view. Now, they may 25 have reached the ultimate conclusion that the risks of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1 198 1 a pool fire are low, but the reasons are different 2 now. It's -- the reasons have shifted to -- have 3 shifted from a catastrophic pool fire is inconceivable 4 to, well, it's possible but it's not as likely as we 5 may have thought and we have taken some mitigative 6 measures to keep the probability down.
7 In addition to that, in the draft revised 8 EIS, the NRC said, We cannot generalize about spent 9 fuel pools west of the Mississippi River. So that 10 leaves Diablo Canyon without a viable environmental 11 analysis of the impacts of an earthquake on the spent 12 fuel pools.
13 JUDGE KARLIN: Well, let me ask on that.
14 I mean -- the issue of whether or not the draft GEIS 15 of 2009 is valid or invalid or correct or incorrect is 16 not before us. I don't think you're trying to -- but 17 your question is whether that constitutes new and 18 significant information under Marsh v. Oregon that 19 would warrant revisiting the 1996 GEIS.
20 MS. CURRAN: Yes.
21 JUDGE KARLIN: Is that right?
22 MS. CURRAN: That's a good way to put it.
23 In other words, this -- this is equivalent to a draft 24 -- a draft EIS for Diablo Canyon because this -- the 25 purpose of a generic EIS is to make in generic terms NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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199 1 an environmental finding that can be applied to all 2 nuclear plants.
3 And environmental impact statements aren't 4 cast in stone. They're very different from safety 5 regulations where the agency promulgates a regulation, 6 that regulation is good for all time and even new 7 information isn't going to automatically undermine 8 that the way an EIS constantly has to be opened to new 9 and significant information. If the licensing 10 decision hasn't been made yet, if there's new 11 information, it has to -- the decision has to be 12 informed by the new information.
13 And here we have the NRC itself presenting 14 new information in the form of basically a draft GEIS 15 in support of future prospective licensing decisions 16 saying the basis for our findings about spent fuel 17 pools has changed.
18 JUDGE KARLIN: Does the fact that it's a 19 draft GEIS question whether they're presenting new 20 information? I mean, a final EIS will say, Oh, no, 21 we're wrong. It does cover western United States 22 sites.
23 MS. CURRAN: Well, if they say that in the 24 end, then maybe the contention is withdrawn. But 25 right now, the Commission has -- right now, it's like NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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200 1 a draft EIS for this licensing decision. What the 2 Commission is saying is things have changed for 3 prospective decisions. Just as in any case, you know, 4 the draft EIS is put out before the licensing 5 decision. This is like a draft EIS for the Diablo 6 Canyon licensing case.
7 JUDGE ABRAMSON: Have they said when they 8 would take comment on it?
9 MS. CURRAN: They already took comment.
10 The comments have been filed in -- in 2009. So 11 Mothers for Peace commented on the draft .GEIS, and so 12 we would expect that the licensing decision for Diablo 13 Canyon would not be made until the issues raised in 14 that draft GEIS had been resolved because they affect 15 Diablo Canyon.
16 JUDGE TRIKOUROS: Let me get a 17 clarification from you. The -- the references to 18 NUREG 1738, which is not a draft document -- it's a 19 final-issued NUREG, number one.
20 MS. CURRAN: It's a final --
21 JUDGE TRIKOUROS: Number two, isn't the 22 exception or the exclusion for western nuclear power 23 plants, specifically Diablo Canyon, limited to seismic 24 event frequency?
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201 1 for, say, spent fuel pool accidents, I believe you 2 need to integrate the earthquake into the other 3 causative factors and put it all together. You don't 4 do a separate one for just earthquakes. You put 'em 5 together.
6 JUDGE TRIKOUROS: I don't understand what 7 you mean by "put them together."
8 MS. CURRAN: Well, there's, you know, cask 9 drop earthquake, there's -- in the EIS, there's a list 10 of various precursor events.
11 JUDGE TRIKOUROS: Right.
12 MS. CURRAN: And they're integrated 13 into -- there's, you know, probability figures given 14 putting all those together and that's why the -- we 15 put it in terms of it's not just a separate EIS for 16 earthquakes. It's -- if you're going to look at 17 what's the potential for severe accident in the Diablo 18 Canyon spent fuel pool, you put all the causative 19 factors together.
20 JUDGE TRIKOUROS: The -- yes. Yes, but 21 the -- it seems to me there are two basic event 22 categories. There are boil-down events and drain-down 23 events. The boil-down events are not in question, 24 things such as loss of off-site power, that sort of 25 thing. The drain-down events, which include such NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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202 1 things as cask drop, are also not in question other 2 than one category of drain-down events which is 3 seismic-initiated events. So my understanding is that 4 the only thing that you could -- the only conclusion 5 you could draw from NUREG 1738. is that the seismic 6 event frequency should be determined on a plant-7 specific basis.
8 MS. CURRAN: Well, and that's the reason 9 for the waiver petition.
10 JUDGE TRIKOUROS: I understand, but the seems -11nd I'l I`waiver quo* you the words -- but 12 it's broader. It seems to indicate that a complete 13 reanalysis of the -- all environmental impacts should 14 be done. So let me ask it as a question. Is that 15 what you're talking about with respect to your waiver?
16 -- just the seismic event frequency portion?
17 MS. CURRAN: Well, I think -- well, 18 there's two different contentions. That's maybe part 19 of the problem is that the waiver petition is 20 addressed to two different contentions and one has to 21 do with the impacts of an attack on the fuel pool --
22 and we would expect all those things to be integrated 23 together into a single analysis.
24 I think that's --
25 JUDGE TRIKOUROS: Okay. Well, the --
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203 1 MS. CURRAN: I don't think you take them 2 piecemeal. I think you look at the whole.
3 JUDGE TRIKOUROS: I don't -- I guess I 4 don't see the -- let's limit ourselves to EC-2 right 5 now.
6 MS. CURRAN: Okay.
7 JUDGE TRIKOUROS: The -- is your petition 8 for waiver focused on the seismic event frequency 9 -issue?
10 JUDGE ABRAMSON: Only.
11 JUDGE TRIKOUROS: Only?
12 MS. CURRAN: For EC-2?
13 JUDGE TRIKOUROS: Yeah.
14 MS. CURRAN: Yes.
15 JUDGE TRIKOUROS: Okay. It's not clear in 16 reading the waiver, but that is the limitation?
17 MS. CURRAN: It's really focused on 18 what -- that disclaimer in their draft revised EIS 19 saying basically the NRC is not going to generalize 20 about the risks of an earthquake at California nuclear 21 plants, so it would be seismic.
22 JUDGE TRIKOUROS: Okay.
23 JUDGE KARLIN: If I may. On the waiver 24 itself --
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204 1 get my--
2 (Pause.)
3 JUDGE KARLIN: The waiver request you 4 filed, 2.338, you know, the Regulation talks about 5 they have to show that there's some special
.6 circumstances such that the application of the 7 regulation would not serve the purposes for which the 8 rule or regulation was adopted. In your declaration, 9 you talk about what you think the purpose of the 10 regulation was and you say, "The purpose of the 11 regulation is to codify and apply a generic 12 determination made in 1996 license renewal GEIS that 13 spent fuel may be stored in reactor sites without 14 imposing significant additions to environmental risk."
15 Is there any regulation -- where is that 16 written? Is there -- in the Reg., in the preamble to 17 the Reg., in the statement of consideration; is there 18 something that tells us. what the purpose -- you know, 19 any quote that I can quote what the purpose -- because 20 I think there may be a nuance there but I'm not sure.
21 MS. CURRAN: Well, I guess I would just 22 refer back to the text of the EIS itself which says 23 we've looked in general at the issue of spent fuel 24 storage impacts on a general basis. I think I read 25 you the quote saying that basically spent fuel pool NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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205 1 fires aren't credible. So that if you -- if the NRC 2 can make that finding for every nuclear plant in each 3 case, then it makes sense to make a generic finding in 4 Appendix B to Part 51. I'm not sure I know of 5 anything more specific than that.
6 JUDGE KARLIN: Well, on page 28 -- and 7 I'll ask this -- I think it's -- no, 24 of. the PG&E's 8 answer, they talk about the purpose -- well, this is 9 a key factor in whether a waiver can be granted and, 10 you know, the type of purpose doesn't -- would not 11 serve the purposes for which the rule or regulation 12 was adopted.
13 And, here, the Applicant cites you and 14 says, "The Petitioners assert that the purpose of Part 15 51, Appendix B, is 'to codify and apply a generic 16 determination made in 1996,'" just as you said. "We 17 agree," they say. And then they go on, "Application 18 of the rule here would serve the purpose for which the 19 rule was adopted by precluding site-specific 20 consideration."
21 Now, is the purpose of the rule -- here's 22 what I'm grappling with. On the one hand, I see you 23 saying that the purpose of the rule is for the NRC to 24 handle generic issues generically. And as I 25 understand, the Applicant is saying the purpose of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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206 1 rule is to preclude site-specific analysis. And I 2 think that's a slightly different purpose.
3 MS. CURRAN: But there's got to be a 4 reason for -- you can't just arbitrarily preclude --
5 JUDGE. KARLIN: A reason for precluding
.6 site-specific analysis.
7 MS. CURRAN: Yeah. Every nuclear plant is 8 supposed to have an environmental impact statement 9 when there's a licensing decision and it's legitimate 10 for the NRC to look across the board and say, Well, 11 are.there some of these determinations that we don't 12 have to make every single time?
13 JUDGE KARLIN: Yeah.
14 MS. CURRAN: We can make 'em one time and 15 then we -- you know, that's tiering. That's 16 legitimate. But if you can't -- if you can't make a 17 generalization, how can you have the rule? The 18 purpose of the rule is to apply a generic 19 determination. It doesn't have its own -- it's not 20 self-justifying.
21 JUDGE KARLIN: Right.
22 MS. CURRAN: This is all about 23 administering NEPA. And under NEPA, the NRC has to be 24 able to say when it makes a licensing decision, We 25 looked at all the significant environmental impacts NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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207 1 and we made a determination as to their significance.
2 And it's okay to say some of these impacts are the 3 same for all plants.
4 But you can't just write that out of --
5 you can't say, Well, we never have to look at this 6 because we have a rule that says we don't.
7 JUDGE KARLIN: Okay.
8 JUDGE TRIKOUROS: Well, the -- right now, 9 SAMA analyses are not done for spent fuel pools. The 10 basis for that is that the risk has been determined to 11 be low. And that is predicated on the 1996 GEIS.
12 Now, along comes NUREG 1738 and the revised draft GEIS 13 which analyzed spent fuel pool accidents, I believe, 14 and came up with the same conclusion except that it 15 excluded plants like Diablo Canyon from the seismic 16 perspective.
17 So why wouldn't a reanalysis of the risk 18 for Diablo Canyon end it? In other words, what's 19 compelling that says, Now we must do SAMA analysis for 20 spent fuel pools?
21 MS. CURRAN: Well, I suppose the first 22 step would be to look at the risk. You'd have to do 23 the analysis. And then if the impacts were 24 significant, then you would get to the SAMA analysis.
25 JUDGE TRIKOUROS: Right.
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208 1 MS. CURRAN: So that's --
2 JUDGE KARLIN: Does a SAMA analysis 3 include -- SAMA, severe accident mitigation analysis -
4 - I'm sorry -- severe accident mitigation alternatives 5 analysis, SAMA analysis -- does a SAMA analysis-- I 6 think I hear you asserting somewhere in your pleadings
.7 that a SAMA analysis, not just -- doesn't just cover 8 mitigation but avoidance, that the SAMA analysis
-9 addresses how the accident -- severe accident might be 10 avoided. Is that correct? I'm going to ask the same 11 question of Staff and Applicant.
12 MS. CURRAN: Well, yeah, I think --
13 JUDGE KARLIN: Or is it just mitigation?
14 MS. CURRAN: I think that under standard 15 NEPA case law, that -- when an agency considers 16 alternatives, that if the no action alternative is 17 cost effective, it has to be examined and it's 18 possible that in most cases that's not true, but if 19 the no action alternative meets the criteria, it 20 should be examined.
21 JUDGE KARLIN: Well, I'm just thinking --
22 I hear a lot of it saying, Well, the risk is no worse 23 whether -- the initiator makes no difference. If 24 there's a spent fuel pool meltdown, there's a spent 25 fuel pool meltdown and the consequences -- the damage NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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209 1 is the same, so the mitigation is the same.
2 But if you're talking about avoidance of 3 a spent fuel pool meltdown, it might be the avoidance 4 of an earthquake would be different than avoidance of 5 a terrorist attack.
6 JUDGE ABRAMSON: Yeah. But that's not the 7 way SAMA analysis works.
8 JUDGE KARLIN: So is there -- that's what 9 I'm asking.
10 JUDGE ABRAMSON: That's not the way it 11 works.
12 JUDGE KARLIN: Well, that's what I'm 13 asking.
14 MS. CURRAN: Well 15 JUDGE KARLIN: Is there an avoidance or 16 prevention element either in NEPA or in a SAMA 17 analysis? Avoidance or prevention as opposed to 18 simply, Yeah, it happened. Now we're going to 19 mitigate it.
20 MS. CURRAN: Yes. I think so because the 21 -- I believe the analysis weighs the probability of 22 the accident and then the costs of the impacts of the 23 accident and then one looks at -- integrates those and 24 looks at what are the costs of measures that would 25 avoid or mitigate them.
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210 1 JUDGE KARLIN: Avoid or mitigate.
2 MS. CURRAN: So you do that comparison.
3 It's a weighting of costs and benefits.
4 JUDGE KARLIN: Okay.
5 MS. CURRAN: So if the benefits of not 6 acting are greater than the benefits of acting, then 7 that has to be discussed. Then it doesn't have to be 8 implemented. It just has to be discussed.
9 JUDGE KARLIN: All right. Well, now if we 10 now jump to the waiver -- and this is the problem we 11 have here -- that we have EC-2 and the waiver and 12 EC-3 and the waiver and we need to sort of iterate 13 back and forth, I think. But if we jump to your 14 waiver, page four -- I'm sorry -- this is your waiver 15 brief, the -- that brief that you filed, it indicates 16 that -- well, "In addition, the draft revised license 17 renewal GEIS relies on mitigation measures that are 18 site-specific. That's further undermining the 19 regulation's purpose of generalizing about the impacts 20 of spent fuel storage."
21 And so you're trying to imply there I 22 think that Diablo Canyon was unique in the application 23 of site-specific measures or aren't you?
24 MS. CURRAN: Each operating reactor -- and 25 I'm basing this on reading the draft revised GEIS --
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211 1 each operating reactor got enforcement orders from the 2 NRC. It was security-related saying do these things 3 to reduce the effects of an attack on your spent fuel 4 pool, and those were secret orders so we don't know 5 what was in them, but my understanding was that each 6 plant received a separate order and that each plant 7 was analyzed separately so, again, we don't know what 8 was in the orders but it's reasonable to presume that 9 if every plant got a separate order and the NRC claims 10 -- I think they actually claim in the draft revised 11 GEIS to have looked at the specific site 12 characteristics -- then that's -- that indicates that 13 this is no longer a generic topic. This has become a 14 site-specific topic.
15 JUDGE KARLIN: Well, is that true? I 16 mean, the -- I think that a lot of generic 17 determinations that the NRC makes are based on a 18 series of site-specific analyses which they then --
19 they look at the results of all of those analyses and 20 reach generic determinations.
21 JUDGE ABRAMSON: I think the implication 22 that Ms. Curran's making here is that they don't know 23 what orders were given to each plant and they may very 24 well differ; therefore, they may be site-specific and 25 we don't know.
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212 1 JUDGE TRIKOUROS: But all of this is 2 safeguards information that is not -- hasn't been 3 released.
4 JUDGE KARLIN: And isn't this Contention 5 EC-3 anyway?
6 JUDGE ABRAMSON: That's 3 she's talking 7 about.
8 JUDGE KARLIN:' Which is terrorist --
9 MS. CURRAN: Yeah.
10 JUDGE KARLIN: You're talking about 3.
11 Okay. The -- in terms of the waiver, the Applicant, 12 Pacific Gas, and the Staff, they focused on Millstone 13 and we asked you to brief Millstone. But there is the 14 regulatory provision, 2.38(b), and then Millstone 15 comes in.
16 Do you see -- how have you addressed the 17 Millstone factors or are they essentially the same as 18 the regulatory?
19 MS. CURRAN: Well, we tried to address 20 them in our brief.
21 JUDGE KARLIN: You never mentioned 22 Millstone in your initial pleading and, you know, your 23 waiver requests, so I'm thinking, well, you know --
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213 1 elements of the standard are in Millstone kind of --
2 they're parsed. But in my view, we did address all 3 the elements of Millstone in our waiver petition and 4 in our brief we reiterate that basically.
5 JUDGE KARLIN: Well, let's talk about the 6 four factors in Millstone. One, strict application 7 would not serve the purpose for which the rule was 8 adopted. I think you addressed that.
9 Two, special circumstances, that you've 10 alleged some sort of special circumstances.
11 Three, that the situation at Diablo Canyon 12 is somehow unique.
13 And, four, significant problems that a 14 waiver is needed to reach a significant safety 15 problem.
16 Now, I assume you agree with the Staff 17 that Millstone can't be correct when you're dealing 18 with an environmental contention and it has to be an 19 environmental problem, not a safety.
20 MS. CURRAN: Right, and we address that in 21 our brief.
22 JUDGE KARLIN: Right.
23 MS. CURRAN: And the regulation itself 24 doesn't limit itself to safety issues.
25 JUDGE KARLIN: Right. Right. Okay.
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214 1 JUDGE TRIKOUROS: Now, the term 2 "environmental impacts" is used throughout your 3 pleadings. What do you mean when you say 4 "environmental impacts"?
5 MS. CURRAN: The impacts of a catastrophic 6 fire in a fuel pool. Significant release of cesium, 7 airborne release of cesium, contamination -- land 8 contamination, human illness, relocation of the 9 population, the kinds of things that happened in the 10 aftermath of the Chernobyl accident.
11 JUDGE TRIKOUROS: So when you say 12 "environmental impacts," you mean consequences of an 13 accident?
14 MS. CURRAN: Yes.
15 JUDGE TRIKOUROS: You don't mean the risk 16 of an accident? You don't mean the person rem per 17 year. You mean the person rem, so to speak?
18 JUDGE ABRAMSON: She's after the SAMA 19 analysis which to me means looking at the cost 20 benefit, I think. Am I --
21 MS. CURRAN: Yeah.
22 JUDGE TRIKOUROS: But the --
23 MS. CURRAN: But risk comes into it, 24 doesn't it?
25 JUDGE ABRAMSON: Yes.
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215 1 JUDGE TRIKOUROS: Well, it --
2 MS. CURRAN: The probability comes into it 3 and that is the -- the classic way that the NRC 4 evaluates that is to weigh the -- is to look at the 5 risk and then to measure -- to measure the consequence 6 in terms of the probability so it's all weighted.
7 JUDGE TRIKOUROS: Well, I think we need to 8 straighten that out and for example, if 9 environmental impacts is environmental consequences, 10 then that means a reanalysis of the -- the whole -- a 11 reanalysis of the MACTS-2 portion of it. Let me say 12 it that way. The -- if environmental impacts refers 13 to a risk-weighted result or a probability-weighted 14 result, which would be then risk, then one would not 15 have to reanalyze the consequences if the issue were 16 simply a seismic event frequency. One would simply 17 reevaluate the seismic event frequency, take the 18 existing consequence analyses right out of the NUREG, 19 for example, and multiply it now by the new CDF and 20 get a different risk number.
21 So it means a lot how you define 22 environmental impacts. And from what I've seen in the 23 pleadings, not just yours actually, those numbers --
24 those terms are used interchangeably in confusing ways 25 and -- at least for me.
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216 1 MS. CURRAN: Well, it seems to me that 2 there's two things that one looks at. And they have 3 to be looked at separately to some degree. One is the 4 probability and one is what consequences could result 5 from this type of accident. And because in the spent 6 fuel pool the inventory of the pool is dominated by 7 cesium, the consequences of early release are somewhat 8 different than if the core mounts. So that has to be 9 taken into account and separately addressed, you know, 10 this is what happens when there's a large release of 11 cesium.
12 JUDGE TRIKOUROS: But I don't think that's 13 -- let me just pursue it one second.
14 JUDGE KARLIN: Okay.
15 JUDGE TRIKOUROS: I don't think that's the 16 case, as I understand it. When the analysis is done 17 of a spent fuel pool accident associated with a 18 seismic event, they don't do a detailed structural 19 analysis to try and understand where the pool might 20 break and how much water might get out or any of that.
21 They simply take all the water out of the pool 22 instantly. It's gone.
23 And that's true of whether it's a big 24 seismic event or a small seismic event. So the 25 consequence is the same. What's different is the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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217 1 frequency of that event occurring which then informs 2 the consequences, so to speak. Risk informs the 3 consequence. That's my understanding and so that's --
4 and it's important I think to this whole thing.
5 MS. CURRAN: Judge Trikouros, I just want 6 to clarify one thing. My understanding- is that one of 7 the things that was learned in NUREG 1738 is that 8 complete loss of water from the pool is not the most 9 serious kind of accident that you could have in a fuel 10 pool because if you lose all the water at once, it 11 isn't as serious an event as if you lose part of the 12 water and the cooling effect is lost.
13 JUDGE TRIKOUROS: Right.
14 MS. CURRAN: So I think it's probably more 15 -- originally that was the kind of analysis that was 16 done. Take all the water out and then what happens?
17 And that was one of the reasons why the answer kept 18 coming out no problem. But if you start to consider 19 what happens when you lose the cooling effect of the 20 water or air in the fuel assemblies, that's when the 21 serious problems occur.
22 JUDGE TRIKOUROS: Well, I agree with that 23 but I don't think that's what was done. I believe 24 that -- and this is something I'd like to get 25 straightened out -- but I believe seismic event NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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218 1 occurs, the water drains, the fuel -- spent fuel pool 2 zirconium fire occurs. Those -- in that order.
3 JUDGE ABRAMSON: But in any event, Judge 4 Trikouros, isn't what's done in the SAMA analysis is 5 there's an assumption of a certain amount of release 6 and the frequency of that suggested by the -- in this 7 case the seismic frequency distribution function.
8 JUDGE TRIKOUROS: But there is no SAMA.
9 JUDGE ABRAMSON: But what they're after 10 here is essentially a SAMA analysis to see whether you 11 should mitigate --
12 JUDGE TRIKOUROS: Right.
13 JUDGE ABRAMSON: -- whether you should 14 mitigate these kinds of events.
15 JUDGE TRIKOUROS: Right.
16 JUDGE ABRAMSON: That's what they're 17 after.
18 JUDGE TRIKOUROS: And it's clear that the 19 consequences are untenable. So what it really boils 20 down to, so to speak, is the frequency.
21 JUDGE ABRAMSON: Right.
22 JUDGE TRIKOUROS: And that's the 23 conclusion that's really reached in these documents, 24 is here are the consequences. They're not very good.
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219 1 worrying about it.
2 JUDGE ABRAMSON: It's remote and 3 speculative, as NEPA would put it.
4 JUDGE TRIKOUROS: That's really where this 5 boils down to. Now, the.-- your petition is saying, 6 Look, you don't know the frequency of this because you 7 don't know what the seismic event is. That may drive 8 the whole thing, put us in a whole different plane of 9 frequency, and where it does become a serious issue.
10 But we'd have to determine that.
11 MS. CURRAN: Right.
12 JUDGE TRIKOUROS: That's really where 13 you're coming from.
14 MS. CURRAN: That's what the draft revised 15 EIS seems to be calling for. It's saying the 16 generalizations that are made in NUREG 1738 cannot be 17 applied to Diablo Canyon. So then where does that 18 leave us?
19 JUDGE TRIKOUROS: With respect to the 20 seismic event frequency.
21 MS. CURRAN: Right.
22 JUDGE TRIKOUROS: I think you need to 23 always qualify it that way.
24 MS. CURRAN: Okay.
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220 1 are treated -- are discussed as generic. They are not 2 site-specific. They are discussed --
3 MS. CURRAN: And the consequences as 4 discussed in a draft revised EIS are also probability-5- weighted as far as -- that's my reading of the EIS so 6 that's, you know, something where they considered a 7 probability in looking at the consequences.
8 JUDGE TRIKOUROS: Right. When they 9 determined the risk, that's right. That's correct.
10 JUDGE ABRAMSON: I'd like to return just 11 for a moment, Ms. Curran, to the issue of the impact 12 of the fact that this is only a draft. Mothers for 13 Peace -did comment on the draft, so your input is now 14 in front of the Commission. And I'd like to have you 15 explain to me if this were draft anything else, it 16 would -- if it were simply an RAI, for example, it 17 would not be the basis for a contention and wouldn't 18 come in.
19 Why in this instance when Mothers for 20 Peace has commented to the Commission, when the draft 21 is not a final Commission document -- it's one that 22 was put out for comment -- should we consider the 23 content of the draft to be significant new information 24 that's sufficient to pass the threshold for this 25 waiver?
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221 1 MS. CURRAN: The reason is that the draft 2 presents the NRC technical staff's most recent 3 thinking on the risk of pool fires related to 4 earthquakes. That is the NRC -- the NRC saw fit to 5 publish this in a draft revision to an environmental 6 impact statement, which the law requires the NRC to 7 revisit when it has new information that could change 8 the outcome of its study.
9 JUDGE ABRAMSON: And the basis for your 10 argument really relies on the statements by the Staff 11 that this is not applicable for seismic events west of 12 the Mississippi. Am I hearing that correct?
13 MS. CURRAN: That's right.
14 JUDGE ABRAMSON: So this really revolves 15 around that one sentence?
16 MS. CURRAN: Yes.
17 JUDGE ABRAMSON: Or that one concept.
18 Okay.
19 MS. CURRAN: Yes. And we rely for the law 20 on 10 CFR 51.92 which obliges the NRC to revise an 21 environmental impact statement when it has new 22 information, which it has done in this case by issuing 23 the draft EIS. At this point, in our view, we have 24 put the issue into play. It could be that when all is 25 said and done, the NRC comes out with a final EIS --
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222 1 GEIS which in our view has to be done before Diablo 2 Canyon's relicense that says, Oh, we made a mistake.
3 We really -- we dreamed all this that has been going 4 on for the last ten years and we want to go back to 5 NUREG 1353 when we. said spent fuel pools pose no risk 6 at all.
7 But I really don't think that's going to 8 happen and, right now, what we have is the NRC --
9 we're seeihg the evolutioniof the NC's thiriking about 10 an extremely important environmental issue. It's 11 .changed over time. We people learn things. People 12 change their thinking. And when it comes to 13 environmental risk, that's what the law requires the 14 Agency to take that new thinking into account, present 15 it to the public, and say, This is how our views have 16 changed. What do you think? And before that next 17 licensing decision, which is -- you know, the GEIS is 18 supposed to support the Diablo Canyon licensing 19 decision -- before that decision --
20 JUDGE ABRAMSON: Yeah. I understand that.
21 MS. CURRAN: Okay.
22 JUDGE ABRAMSON: I understand all that.
23 Thank you.
24 JUDGE KARLIN: Any more questions?
25 JUDGE TRIKOUROS: Just a clarification.
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223 1 I don't think west of the Mississippi. I think the --
2 it says --
3 JUDGE ABRAMSON: I'm only quoting what she 4 said.
5 MS. CURRAN: Well, I may have generalized 6 wrong, but --
7 JUDGE TRIKOUROS: Okay. Because I don't 8 think Arizona plants -- whenever they specifically 9 mention plants, -they mention Diablo Canyon, San 10 Onofre, and one other plant in Washington state I 11 think, but I just want to make sure.
12 MS. CURRAN: Okay.
13 JUDGE TRIKOUROS: But they do specifically 14 mention Diablo Canyon.
15 MS. CURRAN: They do.
16 JUDGE KARLIN: Thank you, Ms. Curran.
17 MS. CURRAN: Thank you.
18 JUDGE KARLIN: Mr. Smith. Okay. Mr.
19 Tyson Smith speaking for --
20 JUDGE ABRAMSON: Goes to Washington.
21 JUDGE KARLIN: -- Pacific Gas & Electric.
22 Mr. Smith, I would like to ask you to turn to page 23 23 of your answer. And we're focusing -- I'm going to 24 focus on the waiver issue.
25 MR. T. SMITH: Okay.
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224 1 JUDGE KARLIN: And I think the -- your 2 brief talks about item number two, "A waiver from the 3 NRC regulations is not warranted." Okay?
4 MR. T. SMITH: Uh-huh.
5 JUDGE KARLIN: And you talk about the four 6 elements of Millstone and that sort of thing about 7 whether or not the waiver is warranted. And I see 8 your brief going into that in some depth, and it's 9 useful to us. But I think -- does it seem to me -- it 10 seems to me that maybe that you've asked the wrong 11 question or you're asking us to focus on the wrong 12 question. Because they've asked for a waiver. And in 13 a waiver, as I understand, they don't have to show 14 that the waiver is warranted. They just have to show 15 to us that they have a prima facie case that the 16 waiver is warranted.
17 Could you talk about that? Your brief 18 never mentions what I think is the issue we have to 19 decide, is whether or not they've made a prima, facie 20 case, not whether the waiver is warranted in 21 substance.
22 MR. T. SMITH: Well, no. We didn't 23 actually focus on whether they had made the prima 24 facie case, but I think the point we're raising here 25 is they have not made the prima facie case. They NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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225 1 haven't demonstrated that the application rule 2 wouldn't serve the purpose here. They haven't made.
3 any demonstration that there are special circumstances 4 that were not considered in the GEIS. In fact, the 5 very circumstances they're focusing on, severe 6 seismic-generated catastrophic loss of the spent fuel 7 pool, was specifically addressed in the GEIS.
8 JUDGE KARLIN: Well, let me go -- I mean, 9 you know, prima facie case, we all think we know what 10 that means and we've all used it as lawyers many 11 times, but I had to go back to the.books and look.
12 And Black's Law Dictionary defines prima facie case as 13 "sufficient to establish a fact or raise a presumption 14- unless disproved or rebutted."
15 Now, I see your answer as primarily a 16 rebuttal.
17 MR. T. SMITH: And that would --
18 JUDGE KARLIN: But that's what we are not 19 to consider in whether there's a prima facie case.
20 What we need to say is have they raised an 21 inference -- have they raised sufficient that absent 22 any answer from you, it would be a prima facie case 23 requiring an answer from you.
24 MR. T. SMITH: And they have not done 25 that.
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226 1 JUDGE KARLIN: And how have they not done 2 that?
3 MR. T. SMITH: Well, they have not --
4 actually, they've not made a prima facie case for any 5 of the four waiver standards, for instance.
6 JUDGE KARLIN: Well, they say that Diablo 7 Canyon in the earthquake situation is unique, do they 8 not? That, you know, there's been a lot of studies 9 done on Diablo Canyon. It's excluded by all the GEISs 10 and so it's special and it's unique.
11 MR. T. SMITH: But they haven't addressed 12 the fact that the GEIS itself, the one that's 13 applicable to 1996 GEIS, does not limit its 14 conclusions in any way to plants outside of the 15 central or eastern United States.
16 JUDGE KARLIN: I think that's -- I have 17 some difficulty with that, but we'll let it ride 18 because I just -- I'm very troubled by -- a prima 19 facie case is one where we don't -- you could simply 20 demur. They file their petition and you simply say, 21 I demur. We need to say nothing. They have not 22 established even enough to shift the burden to us to 23 even respond in any substantive way.
24 Instead, you've responded in a substantive 25 way to all the elements.
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227 1 MR. T. SMITH: And I think we did that 2 because the response shows that there is no -- there 3 is no basis for a waiver. We address each of those 4 factors and demonstrate --
5 JUDGE KARLIN: But that's not the 6 question.
7 MR. T. SMITH: The reason we responded is 8 because we think it's important to get on the record 9 our view of the bases that they're asserting for the 10 waiver, and so that's why we've included it.
11 JUDGE KARLIN: Okay. And you -- here, 12 they're asserting tat ther is new and significant 13 information subsequent to the 1996 GEIS, and let's 14 just put this in a context I understand it. Before an 15 agency makes a decision on something that 16 significantly affects the environment, it has to do an 17 environmental impact statement under NEPA.
18 This Agency in 1996 did a generic 19 environmental impact statement. It is now 14 years 20 later, 2010. Now they're being asked to make a 21 decision on whether to issue this license or not. As 22 I understand, the Petitioners are saying, Well, in 23 that intervening 14 years, some new and significant 24 information has come forward; i.e., the 2009 draft 25 GEIS and the 1738 NUREG and, therefore -- so is this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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228 1 not new and significant information that ought to be 2 considered before this 2010 decision is made?
3 MR. T. SMITH: Well, there's two questions 4 embedded in that. If we're just talking about the 5 purpose of a waiver, whether or not there's new and 6 significant information doesn't change the fact that 7 spent fuel storage is a Category 1 issue that can't be 8 litigated in an individual proceeding.
9 JUDGE KARLIN: Well, that's why they're 10 asking for a waiver.
11 MR. T. SMITH: Right. But whether or not 12 you need to have a waiver to admit a contention is 13 different than whether you satisfy NEPA by considering 14 new and significant information. Certainly in the 15 GEIS, the existence of 1738, the draft GEIS is 16 addressed. Other petitions for rulemaking have been 17 filed by two states, raising a very issue of whether 18 1738 is new and significant information -
19 JUDGE KARLIN: Now, you're talking 20 about -- you're talking about the New York case?
21 MR. T. SMITH: I'm talking -- right there 22 I was talking about --
23 JUDGE KARLIN: The rulemaking --
24 MR. T. SMITH: -- the denial of the 25 petition for rulemaking that was ultimately upheld in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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229 1 New York v. NRC.
2 JUDGE KARLIN: But in that case, those 3 were -- it was rulemaking and I think --
4 MR. T. SMITH: It was a petition for 5 rulemaking filed by the State of California --
6 JUDGE KARLIN: Yes.
7 MR. T. SMITH: -- and the State of 8 Massachusetts, and they were requesting that in light 9 of NUREG 1738 that the Commission change their 10 designation of spent fuel pool accidents and spent 11 fuel storage from Category 1 to a Category 2..
12 JUDGE KARLIN: Right. And I'm looking at 13 I think the decision that you cited; among others,_ is 14 New York v. NRC, Second Circuit, decided December 21, 15 2009 and it was a petition for rulemaking filed by the 16 State of New York and the Commonwealth of 17 Massachusetts and the State of Vermont and whatever, 18 and --
19 JUDGE ABRAMSON: Was State of Califonia 20 in that list?
21 JUDGE KARLIN: No. I don't believe the 22 State of California --
23 MR. T. SMITH: California did not pursue 24 the appellate court litigation.
25 JUDGE KARLIN: Yeah.
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230 MR. T. SMITH: But the denial of the 2 petition for rulemaking that was appealed was filed by 3 the State of California.
4 JUDGE KARLIN: And in that on page 554, 5 589 F.3d 554, the Court says, "An agency decision to 6 deny a rulemaking petition".. which is not what this 7 is -- "is subject to judicial review, but that review 8 is extremely limited and highly deferential," and they 9 go on to say, "The standard has been said to *be so 10 high as to akin to non-reviewability."
11 MR. T. SMITH: And that's correct.
12 JUDGE KARLIN: So the basis of their 13 decision was deference to the agency?
14 MR. T. SMITH: And that is not why I was 15 not citing New York v. NRC. I was citing the NRC's 16 denial of the petition for rulemaking, which is at 73 17 Fed.Reg. 46204.
18 JUDGE KARLIN: Well --
19 MR. T. SMITH: And if I may quote there, 20 the NRC says that, "NUREG 1738 did not attempt to 21 specifically address a number of issues and actions 22 that would substantially reduce the likelihood of a 23 zirconium fire, potentially rendering the frequency 24 estimate to be remote and speculative."
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231 1 continue on this particular case -- is that the 2 judicial review in question is acknowledged to be 3 extremely limited and highly deferential. I think the 4 difference is here that we are, part of the Agency. We 5 are a part of the -- we don't have the extremely 6' limited and highly deferential viewpoint on that. In 7 fact, we have. two highly competent experts in 8 technical arenas --
9 JUDGE ABRAMSON: Not deferential either.
10 JUDGE KARLIN: -- and so I think, you i1 know, there's a different standard, and the denial of 12 a rulemake petition under that standard is not 13 particularly relevant to what we need to do here 14 today.
15 MR. T. SMITH: I would agree.
16 JUDGE ABRAMSON: That's -- can I --
17 JUDGE KARLIN: And we do have the specific 18 exclusion of Diablo Canyon and we do have that 19 combined with the Shoreline Fault. The Shoreline 20 Fault didn't exist at the time of the statement made 21 in NUREG 1738. I believe that was maybe 2002 time 22 frame.
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232 1 which is that the NRC in the draft GEIS and its 2 original GEIS has relied on much more than that.
3 They've relied on a series of studies beginning in the 4 late 1970s, all of which have uniformly concluded that 5 the risk of a spent fuel pool fire is uniformly and 6 consistently low. NUREG 1738 doesn't change that. In 7 fact, it doesn't say anything about the seismic 8 setting at Diablo Canyon or the seismic risk at Diablo 9 Canyon. It says in fact we don't apply to Diablo 10 Canyon.
11 The Commission, in its denial of the 12 petition for rulemaking most recently, said that it 13 has looked at mitigation alternatives for all plants 14 and has concluded that the risk is low. It made no Ao?
15 exclusion or exception for Diablo Canyon.
16 JUDGE ABRAMSON: Would you just take a 17 minute, Mr. Smith, and refresh my memory about this --
18 this petition by the State of California for 19 rulemaking. What were they asking for and what 20 explicitly -- and did it relate to an assertion that 21 things have changed in terms of information for Diablo 22 Canyon and did -- did the Commission itself rule on 23 that request?
24 MR. T. SMITH: The request was not 25 specifically focused on Diablo Canyon. It was a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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233 1 petition for rulemaking requesting that the Agency 2 change its categorization in the GEIS from a Category 3 1, which means it can't be litigated, to a Category 2 4 issue for spent fuel pool risks.
5 JUDGE ABRAMSON: And it was filed by the 6 State of California?
7 MR. T. SMITH: Correct, and the State of 8 Massachusetts.
9 JUDGE ABRAMSON: Okay.
10 MR. T. SMITH: And the NRC addressed.that 11 in its denial of petition for rulemaking.
12 JUDGE ABRAMSON: And when was that?
13 MR. T. SMITH: This -- it was denied in 14 August of 2008.
15 JUDGE ABRAMSON: Okay.
16 MR. T. SMITH: And in there, the NRC goes 17 to great lengths to discuss the effects of NUREG 1738 18 and it explains that there are a series of 19 conservatisms in NUREG 1738 that additional studies 20 subsequent to 1738 have shown that NUREG 1738 is 21 extremely conservative and --
22 JUDGE TRIKOUROS: Extremely conservative 23 how? With respect to the consequences of a spent fuel 24 zirconium fire or with respect to the frequency of its 25 occurrence?
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234 1 MR. T. SMITH: Frequency of its 2 occurrence.
3 JUDGE TRIKOUROS: Okay.
4 MR. T. SMITH: The Commission has said 5 that NUREG 1738 didn't account for operator actions, 6 didn't account for further analysis of heat transfer S7 mechanisms 8 JUDGE TRIKOUROS: Okay.
9 MR. T. SMITH: -- or mitigation 10 alternatives in place since 9/11.
11 JUDGE TRIKOUROSt And all of that works 12 fine except for seismic events. Seismic events --
13 now, I'm not commenting on site-specific measures, 14 mitigation measures that are not known to the general 15 public. I'm not commenting on that. I'm commenting 16 on what -- what is before us. And what's before us is 17 that if I asked you to tell me what the frequency of 18 a seismic event at Diablo Canyon is right now, I don't 19 think you could tell me.
20 MR. T. SMITH: No. I can't tell you. And 21 the Commission doesn't require me to be able to tell 22 you. They say qualitatively the risk of a spent fuel 23 pool accident, including from severe seismic-generated 24 events, is uniformly low at all plants without 25 exception.
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235 1 JUDGE TRIKOUROS: But they exclude Diablo 2 Canyon --
3 MR. T. SMITH: They do not exclude --
4 JUDGE TRIKOUROS: -- from --
5 MR. T. SMITH: -- Diablo Canyon from that 6 conclusion. NUREG 1738 was designed to allow 7 relaxation of regulatory requirements at 8 decommissioned plants. It was designed for a specific 9 purpose.
10 JUDGE TRIKOUROS: It is true in their 11 general conclusion they don't exclude anybody. I 12 agree with that.
13 JUDGE ABRAMSON: In --
14 JUDGE TRIKOUROS: What we make of that is 15 another --
16 JUDGE ABRAMSON: Judge Trikouros, are you 17 talking about this denial of rulemaking when you say 18 in their general conclusion they didn't exclude --
19 JUDGE TRIKOUROS: In the general 20 conclusions of NUREG 1738 21 JUDGE ABRAMSON: But I'm much more 22 interested in this denial of rulemaking because it's 23 the State of California who requested it, which
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236 1 at this denial, but what you're telling me, Mr. Smith, 2 is that in that denial, the Commission said it's 3 generally true across the board for all plants.
4 MR. T. SMITH: Correct.
5 JUDGE ABRAMSON: If they remain Category 6 1 events.
7 MR. T. SMITH: That's exactly what they 8 said.
9 JUDGE KARLIN: Well, let me ask, if I may, 10 on page E-33 of the 2009 draft GEIS -- do you have 11 that E-33?
12 MR. T. SMITH: I do.
13 JUDGE KARLIN: That was cited I think by 14 the Petitioners. There's where they have the excludes 15 Diablo Canyon, that -- "Since issuance of the 1996 16 GEIS, additional analysis of the risk from spent fuel 17 pool accidents has been performed and documented. The 18 key document in this regard is NUREG 1738."
19 Then they go on to talk about airborne 20 pathways which, as I understand it, is the gist of 21 this contention, and says, "The initiating events 22 included in this analysis are listed below: Seismic 23 (for central and eastern United States sites).
24 Footnote: Excludes Diablo Canyon, San Onofre, and 25 WNP-2."
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237 1 So aren't they saying in the most recent 2 statement that, Look, Diablo Canyon is not covered by 3 this analysis?
4 MR. T. SMITH: No. That's not what 5 they're saying.
6 JUDGE KARLIN: Is excluded.
7 MR. T SMITH: No. If you look on page E-8 35, the --
9 JUDGE KARLIN: Okay.
10 MR. T. SMITH: -- Commission begins and 11 they say, "Since NUREG 1738 and subsequent to the 12 attacks of 9/11, significant additional analyses have.
13 been performed, includes a Sandia analysis."
14 JUDGE KARLIN: Wait a second. I'm on 15 E-35?
16 MR. T. SMITH: I'm on the bottom paragraph 17 of E-35.
18 JUDGE KARLIN: Okay. "Since issuance of 19 NUREG ... " I'm with you.
20 MR. T. SMITH: Is very low. And then you 21 go later on to the last of the section, I guess it's 22 E3.7.1.
23 JUDGE KARLIN: Well, that's terrorist 24 attack. We're not talking about terrorist attack.
25 We're talking about earthquakes.
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238 MR. T. SMITH: "The NRC says based on a 2 more rigorous accident progression analysis, recent 3 mitigation enhancements" which would apply no 4 matter the initiating event and
". NRC site 5 evaluations in every spent fuel pool in the country, 6 the risk of a spent fuel pool zirc. fire initiation is 7 expected to be less than reported in NUREG 1738."
8 There's no exception. It says it's less 9 than 1738, including based on an examination at all 10 plants.
11 JUDGE KARLIN: But di-dn't they just say in 12 that footnote that they excluded Diablo Canyon? How 13 can they say that if they excluded --
14 MR. T. SMITH: They say NUREG 1738 didn't 15 include Diablo Canyon or didn't they conclude that, 16 nevertheless, for all plants, "We conclude that the 17 risk is low."
18 JUDGE KARLIN: And what is the basis for 19 that?
20 MR. T. SMITH: The NRC's basis is the 21 Sandia studies, which perform more realistic analyses, 22 the mitigation measures that have been required since 23 9/11 to maintain or restore spent fuel cooling in the 24 event of an accident, that have been confirmed.
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239 1 evaluations of every SPC. Now, are we bound by that?
2 That's a Staff draft. Is this Board bound by that?
3 MR. T. SMITH: No. If anything, you're 4 bound by the existing GEIS which says that spent fuel 5 pool is a Category 1 issue and, to the extent the 6 Petitioners are asking for a SAMA analysis, --
7 JUDGE KARLIN: But they're asking for a 8 waiver. They're asking for a waiver. So we know that 9 if they don't get a waiver, they don't get this 10 contention in.
11 .MR. T. SMITH: Right.
12 JUDGE KARLIN: So that's the issue.
13 MR. T. SMITH: But that conclusion in the 14 GEIS makes no exception. Period.
15 JUDGE KARLIN: Beg pardon?
16 MR. T. SMITH: The conclusion that's in 17 the GEIS and the studies that were available at the 18 time of the GEIS make no exceptions for Diablo Canyon.
19 JUDGE KARLIN: And was the Shoreline Fault 20 new information since this occurred?
21 MR. T. SMITH: Yes. But as I mentioned 22 earlier, new and significant information will be 23 addressed in the NRC's NEPA evaluations or the 24 supplemental environmental impact statement.
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240 1 here, whether it will be addressed in the NEPA 2 evaluation for this site.
3 MR. T. SMITH: It was addressed in our 4 environmental report. We specifically addressed the 5 Shoreline Fault. It's mentioned. It's discussed as 6 new and significant information.
S7 JUDGE KARLIN: It's mentioned but I think 8 even the Staff believes that your discussion was 9 inadequate in its suggesting we had met that 10 contention, is it not?
11 MR. T. SMITH: I think there you're 12 focusing on the SAMA analysis which is one part of the 13 ER, but the ER itself in its discussion of new and 14 significant information does discuss the Shoreline 15 Fault.
16 JUDGE KARLIN: All right.
17 MR. T. SMITH: It mentions it, describes 18 what's known about it at that time.
19 JUDGE KARLIN: Where is that stated in 20 your brief?
21 MR. T. SMITH: It's not stated in our 22 brief, I don't believe.
23 JUDGE KARLIN: Well, it seems to be 24 relevant. Okay.
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241 1 nonetheless which is in the record --
2 MR. T. SMITH: It's in the ER.
3 Absolutely.
4 JUDGE ABRAMSON: -- and we can look at it.
5 MR. T. SMITH: We've been focusing on the 6 SAMA analysis and, as we discuss, it's not 7 specifically mentioned in there but the existence of 8 it is highlighted in the environmental report.
9 JUDGE ABRAMSON: Was any of this new and 10 significant information available at the time of the 11 NRC's decision on rulemaking we were -- on the 12 petition for rulemaking from the State of California?
13 MR. T. SMITH: No, it was not. The 14 existence of the Shoreline Fault was not known at that 15 time.
16 JUDGE KARLIN: On page 24 of your brief, 17 here's the purpose question that I asked Ms. Curran 18 and -- you seem to -- what is the purpose of the --
19 you say, "The application of the rule here would serve 20 the purpose" -- I'm quoting -- "The application of the 21 rule here would serve the purposes for which the rule 22 was adopted by precluding site-specific consideration 23 of storage issues."
24 Was that the purpose of the rule, to --
25 MR. T. SMITH: The purpose --
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242 1 JUDGE KARLIN: -- preclude site-specific 2 consideration?
3 MR. T. SMITH: That's perhaps an 4 oversimplification. Actually, what the Commission 5 said was, We're implementing the GEIS to improve the 6 efficiency of the licensing process for license 7 renewal. And they do that by evaluating for certain 8 issues where the NRC can assign a single significance 9 category and has evaluated mitigation measures and 10 have determined that no additional site-specific 11 mitigation measures would reduce its significance, 12 they can reach a generic conclusion and doesn't need 13 to be litigated in individual licensing proceedings.
14 JUDGE KARLIN: So the purpose is to -- is 15 to make the process more efficient by h'andling generic 16 matters generically?
17 MR. T. SMITH: Yes. Correct.
18 JUDGE KARLIN: Not to exclude site-19 specific consideration where otherwise warranted.
20 MR. T. SMITH: Certainly where otherwise 21 warranted. Absolutely.
22 JUDGE KARLIN: All right.
23 JUDGE TRIKOUROS: But we're in a difficult 24 position here. We -- we need to make a judgment on 25 this and we need to make a judgment that balances NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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243 1 site-specific mitigation measures implemented post-2 9/11 that were there to deal with terrorism, I assume 3 -- that we don't know -- and we want to balance that 4 against a seismic event frequency, which we don't 5 know. So I've got two things I don't know and I'm 6 trying to balance them against each other.
7 MR. T. SMITH: I don't think you need to 8 balance those at all. The Commission has already 9 spoken clearly on this issue and it says that all 10 spent fuel pools, the risk of a zirconium fire from a 11 spent fuel accident-is low, qualitatively across the 12 board. There doesn't need to be a quantification of 13 the seismic risk and 14 JUDGE TRIKOUROS: Well, but there still is 15 -- there still remains the issue of the exclusion in 16 NUREG 1738.
17 MR. T. SMITH: The draft GEIS does not 18 exclude Diablo Canyon.
19 JUDGE TRIKOUROS: But --
20 MR. T. SMITH: And it mentions 1738.
21 JUDGE TRIKOUROS: What doesn't exclude --
22 say that again.
23 MR. T. SMITH: The draft GEIS does not 24 exclude Diablo Canyon from its conclusions that the 25 risk of a spent fuel pool fire are low at all plants.
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244 1 So certainly NUREG 1738 is just one piece of the many 2 documents that the NRC has looked at over the year.
3 They're basing their determination on all of those 4 documents, not just 1738. So maybe you can't apply 5 1738 directly to Diablo Canyon, but you can apply the 6 NRC's broader conclusions.
7 Just because the seismic hazard is 8 different in Diablo Canyon, Diablo Canyon also has a 9 higher seismic design basis. So you can't draw any 10 conclusions about that from NUREG 1738. It has no 11 applicability here.
12 JUDGE TRIKOUROS: Okay. It has no 13 applicability here because of that one statement in 14 the conclusion in the draft GEIS?
15 MR. T. SMITH: Not just the one statement.
16 It's the series of studies, including the GEIS in 17 1996, the Sandia study, the NRC's evaluation in the 18 denial for petition for rulemaking, the orders they've 19 issued, which culminate in the conclusion -- in the 20 draft GEIS which confirms the 1996 GEIS and says that 21 the results of the 1996 GEIS are bounding for all 22 plants.
23 JUDGE ABRAMSON: Mr. Smith, let me ask you 24 -- I appreciate that argument and that makes -- that 25 has a certain merit to it. But let me ask you another NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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245 1 question, related question. And perhaps it's not 2 something that you know. Are you -- do you know 3 whether or not the seismic frequency spectrum has been 4 changed as a result of the discovery of the Shoreline 5 Fault or whether the site-specific seismic frequency 6 spectrum stays the same and it's just a question of 7 allocation between the faults in the area?
8 MR. T. SMITH: I believe an effort is 9 underway to evaluate that very question. I think 10 that's part of what will be completed in December of 11 this year or late 2010.
12 JUDGE ABRAMSON: I see.
13 MR. T. SMITH: I want to step back for a 14 second and say we're talking about the waiver. We're 15 really talking about two things here. They're asking 16 for sort of a double waiver. It's not just a waiver 17 from the consideration of spent fuel accident risks.
18 They're also asking for a SAMA analysis. SAMA is a 19 severe accident mitigation alternative. It only 20 applies to reactor accidents, not to spent fuel pool 21 accidents. So they're really asking you to do two 22 things -- waive the generic consideration of the risk 23 and, two, affirmatively require PG&E to do something 24 different than anyone else has ever had to do for 25 license renewal.
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246 1 JUDGE KARLIN: Well, I don't see that in 2 the contention. The contention is PG&E's ER is 3 inadequate to satisfy NEPA because it does not address 4 airborne environmental impacts of a reasonably 5 foreseeable spectrum of spent fuel accidents including 6 accidents caused by earthquakes. They didn't mention 7 the word SAMA at all.
8 MR. T. SMITH: The Contention EC-2 in 9 bold, it says, "Failure of the SAMA analysis to 10 address the environmental impacts of spent fuel pool 11 accidents."
12 JUDGE KARLIN: All right.
13 JUDGE TRIKOUROS: Good point.
14 JUDGE ABRAMSON: Yeah. I mean, and if I 15 back-door this, the whole reason for this is the 16 reason there's anything going on at this license 17 renewal stage is because the Commission said, If you 18 have not yet done a SAMA analysis for your plant, on 19 license renewal you've got to do it.
20 JUDGE KARLIN: But that's only if you 21 don't get a waiver. If you get a waiver, as they're 22 asking for -- SAMA is a limiting factor with regard to 23 the normal license renewal because it is required as 24 a Category 2.
25 MR. T. SMITH: The basis --
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247 1 JUDGE TRIKOUROS: Let's be clear. There's 2 no SAMA required for spent fuel pools.
3 JUDGE ABRAMSON: That's right.
4 JUDGE TRIKOUROS: Period.
5 JUDGE ABRAMSON: That's right. Severe 6 accident, not --
7 JUDGE KARLIN: Well, I guess -- if I may, 8 mean, I guess the SAMA analysis in the reg. says -- if 9 I -- let's go back to the reg. As I understand it, 10 51.53(c) (2) (ii) (L) says, "If the Staff has not 11 previously confirmed a- severe accident mitigational 12 alternatives for the plant, then the ER needs to 13 include a consideration of the alternatives to 14 mitigate severe accidents that must be provided."
15 Right?
16 MR. T. SMITH: That's correct.
17 JUDGE ABRAMSON: But now you have to go to 18 the definition of severe accidents, Judge Karlin.
19 JUDGE KARLIN: No, no. I think what we're 20 talking about is -- they're asking for a waiver of 21 another provision which says, "The ER need not discuss 22 any aspect of the storage of spent fuel for the 23 facility within the scope of the generic determination 24 in 51.23."
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248 1 different -- so the ER does need to -- you do point 2 out, I think, that they seem to be asking for a waiver 3 of 51.23 as well as 51.53; is that right?
4 MR. T. SMITH: We did point that out.
.5 JUDGE KARLIN: Yeah. And I see that. But 6 I don't see -- you know, and I see that you point out 7 properly that they use the word SAMA, but I'm not sure 8 how that comports.
9 MR. T. SMITH: This -- I can address this 10 easily.
-11 JUDGE KARLIN: Okay.
12 MR. T. SMITH: Two points: One, severe 13 accident only applies to reactors. So there's no such 14 thing as a SAMA for a spent fuel pool. The definition 15 of severe accident is inapplicable. Two, the purpose 16 of the SAMA requirement is NEPA's --
17 JUDGE KARLIN: Now, wait a second. Where 18 is that written?
19 JUDGE ABRAMSON: Definition of severe 20 accident. You look up SAMA.
21 JUDGE KARLIN: Find it. Show me the reg.
22 MR. T. SMITH: Sure. And I'm not sure I 23 can point you to a specific reg. I can point you to 24 a Commission decision saying that.
25 JUDGE KARLIN: Okay.
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249 1 MR. T. SMITH: Would you like that?
2 JUDGE KARLIN: Yes.
3 JUDGE TRIKOUROS: By the way, just because 4 there's a requirement, there's no requirement to do a 5 SAMA for a spent fuel pool, --
6 MR. T. SMITH: Correct.
.7 JUDGE TRIKOUROS: -- doesn't mean that a 8 spent fuel pool accident isn't severe.
9 MR. T. SMITH: Correct. I guess I would 10 add -- the Commission said this in COI 01-17 at 54 NRC 11 21 at the bottom of the page.
12 JUDGE KARLIN: Which one is that?
13 MR. T. SMITH: It's the Turkey Point 14 license renewal decision.
15 JUDGE KARLIN: Okay. I actually have that 16 one and I just -- COI 01-17. What page?
17 MR. T. SMITH: Twenty-one.
18 JUDGE KARLIN: Twenty-one.
19 MR. T. SMITH: And it's at the bottom.
20 JUDGE KARLIN: I'm with you.
21 MR. T. SMITH: The last paragraph that 22 bleeds over onto 22, four lines up.
23 JUDGE KARLIN: Mr. Oncavage?
24 MR. T. SMITH: Yes. That paragraph 25 essentially begins, "And, in any event, Part 51's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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250 1 reference to SAMAs applies only to nuclear reactor 2 accidents not spent fuel pool storage accidents."
3 And I would augment that with what Judge 4 Abramson was saying earlier, which is that the purpose 5 of NEPA -- I'm sorry -- the purpose of the SAMA 6 analysis is to comply with NEPA's requirement that you
.7 look at alternatives. And the reason you have to do 8 SAMAs --
9 .JUDGE KARLIN: And you're saying that's 10 the holding of this case, this sort of reference here?
11 I mean, why would it make any difference if there's a 12 severe accident under NEPA that you need to look at, 13 isn't NEPA NEPA?
14 MR. T. SMITH: Yeah, and that was just 15 what I was getting to. NEPA requires you to evaluate 16 alternatives. That's the genesis of the requirement 17 for a severe accident mitigation alternative.
18 JUDGE KARLIN: Right. -Right.
19 MR. T. SMITH: The reason you have to look 20 at it in because some plants haven't previously 21 considered those alternatives.
22 JUDGE KARLIN- Right. Right.
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251 1 in connection with that license amendment and 2 concluded that, the spent fuel pool did not have a 3 significant impact on the environment. So this issue 4 has already specifically been addressed for Diablo 5 Canyon.
6 JUDGE KARLIN: Did you cover that in your 7 brief?
8 MR. T. SMITH: I did. We did.
9 JUDGE KARLIN: Where? No. I'm surprised.
10 Maybe I wasn't paying attention and I read it three 11 times. I kind of lost track.
12 MR. T. SMITH: I believe it's cited in a 13 footnote.
14 JUDGE KARLIN: A footnote.
15 JUDGE ABRAMSON: That will teach you to 16 read footnotes.
17 JUDGE KARLIN: That will teach me.
18 (Pause.)
19 MR. T. SMITH: It's -- looks like it's at 20 the top of page 29.
21 JUDGE KARLIN: All right.
22 MR. T. SMITH: I'm seeing it's in the 23 paragraph that talks about the significant safety or 24 the significant environmental issue.
25 JUDGE KARLIN: Okay.
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252 1 MR. T. SMITH: It says that, "The NRC has 2 previously considered the risks associated with spent 3 fuel, storage, including severe accidents, in 4 connection with the re-rack in".. that's the current 5 design of the Diablo Canyon spent fuel pool.
6 JUDGE KARLIN: Nineteen ninety-six. And 7 this is the New York v. NRC case that I was just 8 reading?
9 MR. T. SMITH: Further down on page 29.
10 JUDGE KARLIN: Yeah.. I mean, the -- "The 11 Commission previously denied a petition for 12 rulemaking. Is that what you're referring to?
13 MR. T. SMITH: I'm actually -- no, on the 14 top of --
15 JUDGE KARLIN: Okay.
16 MR. T. SMITH: -- top of page 29, --
17 JUDGE KARLIN: Twenty-nine.
18 MR. T. SMITH: -- it says the letter from 19 C. Trammell, NRC, to PG&E, the supplement to the SER 20 and EA for Diablo Canyon re-rack.
21 JUDGE KARLIN: Yes.
22 MR. T. SMITH: That's the NRC's approval 23 of the current design for the Diablo Canyon spent fuel 24 pool.
25 JUDGE KARLIN: Okay.
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253 I MR. T. SMITH: And there the NRC concluded 2 that there were no significant radiological or non-3 radiological impacts. Theyaddressed specifically the 4 performance of the spent fuel pools during a 5 postulated Hosgri earthquake.
6 And if you look back on page 28, in 7 addition I note there that, "The NRC's considered 8 severe accidents at the spent fuel pool."
9 JUDGE KARLIN: Okay.
10 MR. T. SMITH: So thisý issue's already 11 been addressed which means NEPA has already been 12 satisfied for the current licensing basis.
13 JUDGE TRIKOUROS: Right. That decision, 14 of course, was based on seismic information that's 15 different than exists today.
16 JUDGE ABRAMSON: We don't know.
17 JUDGE KARLIN: Well, -
18 MR. T. SMITH: That's fair.
19 JUDGE KARLIN: Okay.
20 MR. T. SMITH: The difference is whether 21 it's new and significant, and you can address new and 22 significant information through the NEPA process 23 without a waiver and the Commission -- there's no need 24 for a waiver here when the Commission -- the NRC Staff 25 will address it through the supplemental environmental NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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254 1 impact statement process. Obviously, the Mothers for 2 Peace have also addressed the issue through the GEIS 3 notice and comment process. So there are multiple 4 ways to satisfy NEPA here that are short of allowing 5 a full adjudicatory hearing on this issue.
6 JUDGE KARLIN: Well, doesn't that presume 7 the merits which is they're wrong? All we're looking 8 at now is whether a waiver -- a prima facie case for 9 a waiver has been made, and a contention should be 10 admitted. I mean, you're getting to the merits of 11 whether the contention is right and saying, The Staff 12 will take care of that. Trust us. Don't worry about 13 it.
14 MR. T. SMITH: I'm getting to the process 15 behind which you satisfy NEPA.
16 JUDGE KARLIN: Right.
17 MR. T. SMITH: And I'm saying is you don't 18 -- it is more than one way to satisfy NEPA. You don't 19 have to have a hearing. That's the point.
20 JUDGE KARLIN: You don't have to.
21 MR. T. SMITH: No.
22 JUDGE KARLIN: But the question for us is 23 is it prohibited?
24 MR. T. SMITH: I believe it is prohibited 25 by the Commission.
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255 1 JUDGE KARLIN: Okay.
2 MR. T. SMITH: I feel comfortable saying 3 you're familiar with that conclusion.
4 JUDGE ABRAMSON: Absent a waiver it's 5 prohibited.
6 MR. T. SMITH: Absent a waiver. Correct.
.7 JUDGE KARLIN: Well, we know that. Any 8 more questions for Mr. Smith? Thank you, Mr. Smith.
9 MR. T. SMITH: Thank you.
10 JUDGE KARLIN: Okay. I guess the Staff.
11 (Pause.)
12 Mr. Smith, Mr. Maxwell Smith.
13 MR. M. SMITH: Yes, Judge Karlin.
14 JUDGE KARLIN: Yes. All right. Maybe I 15 could ask you that question about purpose. And in one 16 of the purposes of the criteria for the waiver is that 17 the application of the Regulation would not serve the 18 purposes for which the Regulation was adopted. Are 19 there any citations you have or law you can give us as 20 to, you know, a clear statement of the purpose of 21 Appendix B and 1996 GEIS?
22 MR. M. SMITH: Not beyond what's already 23 been stated by the Applicant and the Mothers for 24 Peace. We do agree that the Applicant perhaps stated 25 that test too narrowly in their brief and that it must NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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256 1 really be a two-part analysis, a generic determination 2 as well as one that's still correct, the assessment of 3 the environmental impact is properly stated.
4 JUDGE KARLIN: And what is your -- I mean, 5 I'm troubled by the failure of the -- what I see --
6 the concern -- the failure of the Applicant to address 7 what constitutes a prima facie case. Now, you in your 8 brief have talked about prima facie case.
9 MR. M. SMITH: That's correct, Your Honor.
10 JUDGE KARLIN: But isn't that a different 11 and lower threshold than the merits of whether a 12 waiver is warranted or not?
13 MR. M. SMITH: Certainly. That's in 14 Black's Law Dictionary.
15 JUDGE KARLIN: Yeah. Is there a unique --
16 is the law regarding prima facie case unique in the 17 Commission? Does the Commission see that any 18 differently than, you know, sort of the normal prima 19 facie?
20 MR. M. SMITH: I think it's reasonable to 21 read prima facie -- the term prima facie case in this 22 instance as the way it's normally read in legal 23 documents.
24 JUDGE KARLIN: I'm sorry. Could you 25 repeat that?
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257 1 MR. M. SMITH: I think it's reasonable to 2 interpret the word "prima facie" in this statute in 3 the way that -- or this regulation, excuse me -- in 4 the way that it's used in other legal instances and 5 situations.
6 JUDGE KARLIN: Okay. And so is it --
7 would it be reasonable to characterize it as able to 8 withstand a demurrer?
9 MR. M. SMITH: Yes.
10 JUDGE KARLIN: Yes?
11 MR. M. SMITH: I believe that it is. I 12 think that the major problem the Mothers for Peace's 13 petition for waiver has is that it suffers from a 14 logical error, in my opinion.
15 JUDGE KARLIN: And what is that?
16 MR. M. SMITH: The error is that, as we've 17 talked about in the draft revised GEIS, which they 18 rely on primarily for their statement that --
19 JUDGE KARLIN: Oh, could you speak more 20 into the mike?
21 MR. M. SMITH: Am I not loud enough?
22 JUDGE KARLIN: I think so. Just try to 23 speak up a little bit more.
24 MR. M. SMITH: Okay. I'll move in here.
25 JUDGE KARLIN: Thank you.
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258 1 MR. M. SMITH: The major problem I see 2 with the Mothers for Peace's petition for waiver'is 3 that, as we've discussed, it rests on the analysis in 4 the draft revised GEIS which also relies on NUREG 5 17338 which explicitly exempts Diablo Canyon from its 6 discussion of the seismic analysis. So, at. the most, 7 it can't really tell us anything about the adequacy of 8 the environmental impact analysis for Diablo Canyon 9 one way or the other. It doesn't show us that it's 10 inadequate. It doesn't show us that it's more 11 adequate. You know, they draw on other studies, too, 12 that tend to indicate that it's -- the analysis in the 13 1996 GEIS is probably more conservative but, at the 14 bottom, it doesn't tend to undermine it really in any 15 way. Nineteen ninety-six GEIS stands on its own.
16 JUDGE KARLIN: It stands on- its own --
17 certainly we're not here I don't think to litigate 18 whether or not the 2009 draft GEIS, for example, is 19 adequate or inadequate or has got some omission in it 20 or doesn't have an omission in it. I think I hear 21 them saying it introduces new information which is --
22 they would allege is new and significant enough that, 23 you know, this needs to be considered in -- before the 24 license is reissued in Diablo Canyon.
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259 1 say about the new information is that it doesn't apply
-2 to Diablo Canyon. I don't. think you can say .that it 3 tends to undermine the 1996 GEIS's conclusions with 4 respect to Diablo Canyon.
5 JUDGE KARLIN: Well -- okay. They say --
6 the 2009 says it excludes Diablo Canyon.
7 MR. M. SMITH: Right. It says that --
8 well, it was only a small portion of that analysis.
.9 JUDGE KARLIN: Right.
10 MR. M.. SMITH: As the Applicant pointed
-11 out, just with respect -- and Judge Trikouros asked, 12 too, with respect to seismic issues.
13 JUDGE KARLIN: And so you're suggesting 14 that's sort of a neutral point, is that, well, all 15 that does is say it excludes Diablo Canyon. It 16 doesn't cut one way or the other.
17 MR. M. SMITH: Right.
18 JUDGE ABRAMSON: And, therefore, you 19 believe that leaves the old GEIS in place standing on 20 its own.
21 MR. M. SMITH: Right, as it is today.
22 JUDGE ABRAMSON: As it affects -- yes.
23 JUDGE KARLIN: I understand that.
24 JUDGE ABRAMSON: Let me ask you --
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260 1 thing.
2 JUDGE ABRAMSON: Go ahead.
3 JUDGE KARLIN: Which is but what about the 4 Shoreline Fault? I mean, that certainly is some sort 5 of new information.
6 MR. M. SMITH: Right.
.7 JUDGE KARLIN: That it does -- I mean, to 8 me, it just seems like, Well, they've discovered a 9 brand new earthquake fault 600 meters off of the --
10 off from the plant, that's sort of new and might be 11 something we want to take into consideration.
12 MR. M. SMITH: I thought about the 13 Shoreline Fault a great deal when I was applying the 14 Dominion Millstone test to this case.
15 JUDGE KARLIN: Right.
16 MR. M. SMITH: And I think there's two 17 points about it. First, the Mothers for Peace didn't 18 really bring up the Shoreline Fault in their arguments 19 with respect to the second factor, and the other point 20 is that the proponent for waiver must demonstrate that 21 all four parts of the Millstone waiver test are met.
22 And while the Shoreline Fault --
23 JUDGE KARLIN: No. No. They don't need 24 to show that it's been met.
25 MR. M. SMITH: Well --
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261 1 JUDGE KARLIN: They need to show a prima 2 facie case.
3 MR. M. SMITH: Excuse me, Your Honor.
4 They need to show a prima facie case.
5 JUDGE KARLIN: All right.
6 MR. M. SMITH: And in this instance, the 7 Shoreline Fault might well satisfy element two. to 8 demonstrate a prima facie case but it wouldn't 9 necessarily demonstrate element one nor elements three 10 or four.
11 JUDGE KARLIN: But let's -- it might show 12 element two, which is special circumstances; right?
13 MR. M. SMITH: Right.
14 JUDGE KARLIN: And it might show --
15 MR. M. SMITH: Unforeseen by the 16 Commission.
17 JUDGE KARLIN: -- element three which is 18 unique --
19 MR. M. SMITH: Perhaps element three, I 20 believe -- right.
21 JUDGE KARLIN: There's one that's special 22 circumstances and one that's unique, and those two --
23 you know, well --
24 MR. M. SMITH: I'm sorry, Judge Karlin.
25 I got elements two and three mixed up.
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262 1 JUDGE KARLIN: Yeah.
2 MR. M. SMITH: Element three is unique, 3 and I think the Shoreline Fault could well satisfy the 4 unique element of the waiver test, but it might not 5 satisfy one or four and-arguably wouldn't satisfy two 6 in that the Commission seems to have foreseen --
7 JUDGE KARLIN: Well, four is whether it's 8 significant.
9 MR. M. SMITH: -- seismic -
10 JUDGE KARLIN: Four is whether it's
- 11 significant. Right?
12 MR. M. SMITH: Right, four is the 13 significance factor.
14 JUDGE KARLIN: And one is -- what's the --
15 -- what's the initial --
16 JUDGE TRIKOUROS: The purpose, the 17 purpose.
18 MR. M. SMITH: Purpose of the rule.
19 JUDGE KARLIN: And if the purpose of the 20 rule is to treat generic things generically and site-21 specific things site-specifically, well, is it site-22 specific?
23 MR. M. SMITH: I think that's too narrow 24 of a formulation of the purpose of the rule 25 incorporated in the 1996 GEIS. I think the purpose is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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263 1 to treat generic things generically but only to the 2 extent that results in a correct determination of the 3 environmental impacts of that issue.
4 If, you know, the test was just let's 5 treat generic things generically, then arguably you 6 can never waive any element of the 1996 GEIS because 7 they're always treating things generically.
8 JUDGE KARLIN: But they're saying this is 9 not a generic thing.
10 MR. M. SMITH: That -- I mean, the test 11 has to go farther than that.
12 JUDGE KARLIN: They're saying this is not 13 a generic thing because it's special, because it's 14 unique, because it's a new fault. I don't know.
15 JUDGE ABRAMSON: What about the conclusion 16 that the other Mr. Smith was referring to by the 17 Commission that these events are low for every plant 18 in the country?
19 MR. M. SMITH: Right. The Commission has 20 made that determination on several instances like in 21 Diablo Canyon as mentioned.
22 JUDGE ABRAMSON: And this was -- this was 23 a determination made after 1738; right? In a ruling -
24 - I've forgotten the specific ruling you were speaking 25 to, but there was a ruling where -- to which the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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264 1 Applicant's counsel referred wherein one section it 2 talked about 1738 and later they said, But this type 3 of event is low for all plants.
4 MR. M. SMITH: I believe that's the denial 5 of petition for rulemaking.
6 JUDGE ABRAMSON: Is that correct?
7 MR. T. SMITH: Yeah, and it's also in the 8 GEIS, the draft GEIS.
9 MR. M. SMITH: So 10 JUDGE ABRAMSON: It's in the draft GEIS, 11 too.
12 MR. M. SMITH: I'll summarize, both the 13 draft revised GEIS and the denial of the petition for 14 rulemaking filed by New York State, Massachusetts, 15 and --
16 JUDGE ABRAMSON: The Commission makes that 17 determination.
18 MR. M. SMITH: -- the State of California.
19 Yes. The Commission's made that determination in 20 those documents as well.
21 JUDGE ABRAMSON: And would you and so 22 in the draft GEIS, if they make that determination, 23 how would you read that together with the comment that 24 one specific piece doesn't apply to Diablo Canyon? If 25 they're both in a draft GEIS; right?
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265 1 MR. M. SMITH: Right. They are. And I 2 think the Commission is relying on the other factors 3 discussed by the Applicant -- the fact that NUREG 4 17338 was focused on a plant in decommissioning, there 5 would be less chance for operator actions to avert-the 6 impacts of the loss of water in the spent fuel pool --
7 JUDGE ABRAMSON: So would you conclude --
8 MR. M. SMITH: -- and other circumstances.
9 JUDGE ABRAMSON: Would you conclude that 10 taken together, those two statements advise that the 11 draft GEIS says this spent fuelpool events remain a 12 low probability event, a low consequence event -- I've 13 forgotten which way it's cast -- for all plants and, 14 therefore, for Diablo Canyon, even though they've 15 excluded Diablo Canyon for the one piece?
16 MR. M. SMITH: That is a conclusion the 17 draft revised GEIS reaches.
18 JUDGE ABRAMSON: To me, that's the end of 19 the story.
20 JUDGE TRIKOUROS: Let me put this all 21 together for myself because it's getting a bit 22 confusing. We have a 1996 GEIS that basically says, 23 We're fine with respect to spent fuel pool. The 24 likelihood of any consequences occurring are -- is 25 low. Therefore, the risk is acceptable.
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266 1 We -- and, therefore, we don't need to do 2 a SAMA for spent fuel pools.
3 JUDGE ABRAMSON: Well, that's where we --
4 JUDGE TRIKOUROS: That's 1996.
5 MR. M. SMITH: I might add another note to 6 that, Your Honor. In the draft revised GEIS, they 7 also point out that one of the reasons why the 8 Commission determined with respect to accidents that 9 spent fuel pools that the environmental impacts would 10 be low was that they would be bounded by the impacts 11 of a: reactor accident.
12 JUDGE TRIKOUROS: Well, I'm not ready to 13 go there. Let me progress in --
14 MR. M. SMITH: Okay.
15 JUDGE TRIKOUROS: -- time here. Starting 16 with 1996 GEIS, then we move to the -- to this -- to 17 these Sandia studies that have been discussed by Mr.
18 Smith earlier which my understanding is that they 19 showed that even if you uncover fuel, it isn't 20 necessarily true that it will go to zirconium fire 21 stage.
22 MR. M. SMITH: Right.
23 JUDGE TRIKOUROS: Then subsequent to that 24 or all of that occurring around the same time is the 25 2001 event in which site-specific mitigation measures NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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267 1 were required which are unknown, that there are 2 some -- they're alluded to but we don't know 3 specifically what they are.
4 Then we have this draft revised GEIS --
5 JUDGE ABRAMSON: I think you have the 6 rulemaking before that, petition for rulemaking;
.7 right? -- before the draft GEIS?
8 JUDGE TRIKOUROS:' The rulemaking came 9 before that.-*he request for --
10 MR. M. SMITH: I believe the rulemaking --
11 the denial for petition for rulemaking came before --
12 JUDGE TRIKOUROS: Came before.
13 MR. M. SMITH: -- the revisions to the 14 1996 GEIS.
15 JUDGE TRIKOUROS: All right. Fine. So 16 we'll throw that in there.
17 MR. M. SMITH: Right.
18 JUDGE TRIKOUROS: Now we have the draft 19 revised GEIS that reevaluates this using the 20 information from NUREG 1738 and concludes based on the 21 analyses that it performed, that 1738 performed, and 22 the Sandia work and the site-specific mitigation 23 measures, looking at that together, the Commission 24 believes that all plants in the United States have a 25 low risk of spent fuel pool accidents and, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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268 1 therefore, 2 JUDGE ABRAMSON: Remain in Category 1.
3 JUDGE TRIKOUROS: -- yeah, and therefore 4 you don't need to do a SAMA analysis. But in that 5 1738 document, we do have an issue regarding the 6 seismic -- the conclusions that that study reached
.7 regarding seismic were not applicable to Diablo 8 Canyon. But we're led to the conclusion that the 9 Commission knew that when they reached tlheir 10 conclusion in the - at the end of the revised draft 11 GEIS.
12 JUDGE KARLIN: So what's your question?
13 JUDGE TRIKOUROS: But, however, now we 14 have the Shoreline Fault.
15 MR. M. SMITH: That's correct.
16 JUDGE ABRAMSON: Which was -- wh-ich was --
17 was not that present when they did the draft GEIS?
18 Isn't that part of what's -- what drove this question?
19 MR. M. SMITH: May I consult with 20 technical staff for a moment?
21 JUDGE ABRAMSON: Yes.
22 (Pause.)
23 JUDGE KARLIN: If I may ask this question.
24 As I understand it, the Shoreline Fault was discovered 25 in November of 2008; correct?
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269 1 MR. M. SMITH: That's right.
2 JUDGE KARLIN: The draft 'GEIS 2009 was 3 issued on July 31st, 2009; correct?
4 MR. M. SMITH: Right.
5 JUDGE KARLIN: Approximately seven months, 6 eight months later, so the question' really'is does the 7 draft GEIS cite and cover the Shoreline Fault at the 8 Diablo Canyon facility?
9 MR. M. SMITH: Right, although of course 10 it takes a long time to develop a document like the 11 draft'revised GEIS.
12 JUDGE KARLIN: Yeah. But that's the 13 question. Does the draft GEIS incorporate the fact 14 that there's a new Shoreline Fault that was discovered 15 eight months earlier? I suspect not. That's what I'm 16 asking.
17 JUDGE TRIKOUROS: But we do know that 18 it's --
19 JUDGE KARLIN: No, no. Let him ask --
20 answer. Does the answer --
21 MR. M. SMITH: No. It does not.
22 JUDGE KARLIN: It does not.
23 JUDGE TRIKOUROS: It doesn't.
24 JUDGE KARLIN: Okay.
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270 1 simply isn't referenced so, therefore, we'd have to 2 assume it's not.
3 JUDGE KARLIN: All right.
4 MR. M. SMITH: To be honest, the draft 5 revised GEIS specifically cites NUREG 1738 which 6 exempts Diablo from a seismic analysis, so --
.7 JUDGE TRIKOUROS: And these things were 8 happening in parallel. It would be hard to believe 9 that it was --
10 MR. M. SMITH: That's correct.
11 JUDGE TRIKOUROS: And then we have - the 12 final point is that an unmitigated spent fuel pool 13 severe accident has consequences which are 14 unacceptable. That statement I think is still true.
15 I don't think it's -- the Sandia studies and the site-16 specific mitigation are in fact mitigation factors, 17 not consequence factors and so, therefore, they go 18 towards the frequency of a severe accident, not 19 towards the consequence of a severe accident. Right?
20 MR. M. SMITH: Correct.
21 JUDGE TRIKOUROS: Okay. Is that it in a 22 nutshell? Did we leave anything out?
23 MR. M. SMITH: I think that's a good 24 timeline, Your Honor.
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271 1 questions for Mr. Maxwell Smith? No. Thank you, Mr.
2 Smith.
3 MR. M. SMITH: Thank you, Your Honor.
4 JUDGE KARLIN: Ms. Curran. Okay, Ms.
5 Curran. I'm not sure whether we have any questions.
6 Let's ask you-- let me ask you just to focus on the 7 prima facie case issue. All you have to do is make a 8 prima facie case for the waiver as far as I understand 9 it under 2.335(d). And if we decide you have a prima 10 facie case, we kick it up to the Commission to decide 11 whether you really do get a waiver. And if we decide 12 you don't, you're out.
13 So what -- what do you need to show in 14 order to just make a prima facie case?
15 JUDGE ABRAMSON: And how have you shown 16 it.
17 JUDGE KARLIN: And how have you shown it?
18 Prima facie case for a waiver, not the merits of the 19 waiver, just the prima facie case on the waiver.
20 MS. CURRAN: I -- to me, this just seems 21 like a show-stopper, like a prima facie -- it's in --
22 it's in the Government document, the Government. It's 23 not like we had to hire an expert to tell you this.
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272 1 earthquakes for Diablo Canyon.
2 JUDGE KARLIN: But isn't that sort of a
- 3. neutral point? It doesn't say it's good. It doesn't 4 say it's bad. It just says it doesn't cover it.
5 MS. CURRAN: We didn't analyze it.
6 Period. And if you look at the --
7 'JUDGE KARLIN: But that's 2009.
8 JUDGE TRIKOUROS: But you heard the --
9 MS. CURRAN: Well, that's the most, recent 10 thinking.
11 JUDGE TRIKOUROS: But you heard the 12 Applicant's comment that the conclusions -- while in 13 the body of the document it clearly indicates that 14 exclusion, in the final conclusion not of NUREG 1738 15 but of the draft revised GEIS, it doesn't exclude 16 Diablo Canyon in its statement.
17 MS. CURRAN: It does, actually. Can I 18 read it to you?
19 JUDGE TRIKOUROS: Sure.
20 MS. CURRAN: Because it's important to 21 read the words.
22 JUDGE KARLIN: Please.
23 MS. CURRAN: Okay. I'm reading from page 24 E-36.
25 JUDGE KARLIN: E-36?
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213 1 MS. CURRAN: Yes.
2 JUDGE KARLIN: All right. Hang on.
3 MS. CURRAN: In the middle of the second 4 full paragraph that starts "Furthermore ... It says, 5 "Based on a more rigorous accident progression 6 analyses, the recent mitigation enhancements and NRC 7 site evaluations of every SFP in the United States, 8 the risk of an SFP zirconium fire initiation is 9 expected to be less than reported in NUREG 1738 and 10 previous studies."
11 Well, they say "NRC site evaluations of 12 every spent fuel pool, " but they just finished saying 13 that they can't talk about -- they have nothing to say 14 about the Diablo Canyon site. So what they're saying 15 here is -- they're making a generalization about every 16 place else. Because if they had done a site-specific 17 seismic analysis at Diablo Canyon, they would have 18 said so. But this is -- this is about every place 19 else.
20 So, in other words, they're saying, We can 21 make generalizations about everything but Diablo 22 Canyon. If the NRC technical staff had done a site-23 specific seismic analysis for Diablo Canyon, that 24 footnote wouldn't be in there or it would be 25 annotated.
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274 1 JUDGE KARLIN: Well, they also talk about 2 the key document is 1738.
3 MS. CURRAN: Right.
4 JUDGE KARLIN: They say that somewhere.
5 MS. CURRAN: It's key.
6 JUDGE KARLIN: And I looked at 1738 a bit 7 and you cited it a bit and it has -- it is rife with 8 statements that it doesn't cover the western. United 9 States, it doesn't cover Diablo Canyon. It must say 10 that about half a dozen times.
11 MS. CURRAN: Right.
12 JUDGE KARLIN: How does that play into 13 this?
14 MS. CURRAN: Well, another thing that I 15 want to point out is in the environmental report, and 16 this is mentioned in our reply at page nine, PG&E says 17 that seismic, along with fire, are the dominant risks 18 for Diablo Canyon. So seismic is the dominant risk 19 and fire is probably related to seismic so that
.20 they're saying for the dominant risk factor here, that 21 PG&E admits is the most important risk factor at 22 Diablo Canyon, the only technical study that the NRC 23 can cite that has to do with seismic analysis of spent 24 fuel pools -- there's no other technical study cited 25 in here -- they can't reach any conclusion about NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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275 1 Diablo Canyon. And you yourselves, mentioned the 2 Shoreline Fault. You know, recent information shows 3 they're still turning up problems. That's why the 4 authors of 1738 said what they said because this plant 5 happens to be located in a major earthquake zone.
6 So there isn't any -- there isn't anything
9 JUDGE TRIKOUROS: The overall conclusion 10 is on page E-37, and it provides no exclusions. If 11 plants like Diablo Canyon or San Onofre or Washington 12 Nuclear Power were not applicable in that conclusion, 13 do you think it was an oversight that they didn't 14 include them? I'm trying to understand why in the 15 overall conclusion, which is really looking at the 16 bigger picture, including Sandia, looking at site-17 specific mitigation, all of that, that they reached 18 that conclusion.
19 MS. CURRAN: Well, for one thing, the 20 context of the conclusion that I just read to you and 21 that is in that paragraph, that's the last paragraph 22 before Section E.3.7.2, that whole discussion is in 23 the context of terrorist attacks.
24 JUDGE TRIKOUROS: Right.
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276 1 the main point -- and this is not the Commission.
2 This is the NRC Staff -- that their main point was, We 3 dealt with how you could intentionally cause a pool 4 fire and we reduced the risk to an acceptable level.
5 That doesn't -- there isn't anything in this language 6 -- no study that's cited, nothing -- to indicate the
.7 NRC, after reading what it says in 1738, went and 8 said, Okay, let's do an analysis and see if we can get 9 enough information to make a generalization. It isn't 10 there.
11 JUDGE TRIKOUROS: Right.
12 JUDGE ABRAMSON: So what new information 13 is here when the final conclusion says in this report 14 that we're seeing, this draft GEIS that's being cited 15 as the new information, what new information is there 16 when the final conclusion says we're back where we 17 were for all plants in the United States? Or am I 18 missing something?
19 MS. CURRAN: Well, yeah. I think you are 20 missing something, which is that we're not back where 21 we were. We're not back where we were at all. We 22 have come quite a long way from the 1996 GEIS in which 23 the NRC technical staff, relying to- a significant 24 extent on studies of low density pool storage, said, 25 Spent fuel pool fires are not credible. Just won't NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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277 1 happen. Don't have to worry about it.
2 Then NUREG 1738 came out. The Staff 3 admitted for the first time -- I was personally 4 involved in a case where during that case it came out 5 that the NUREG 1738, my -- our expert witness was the 6 witness who said fuel can burn if it's uncovered. And 7 in their pleading, the NRC Staff basically said our 8 expert doesn't know what he's talking about. Who 9 would say a thing like that? It's ridiculous.
10 And then the Staff came out and said, We 11 have concluded that, yes, if the fuel is uncovered, it 12 will burn. And then thereafter, the NRC began to 13 study ways to mitigate that effect and that was when 14 we got all the, you know, the Sandia studies and the 15 orders in the individual cases. But that conclusion, 16 that if fuel is uncovered it can burn, that's really 17 different than what is in the '96 EIS and, therefore, 18 we can't go back to that place where you basically say 19 it's not a credible event.
20 Basically, where the NRC now is saying, 21 It's credible but if you mitigate it, if you look at 22 some of these factors that are security-related 23 information, it's not as bad as originally thought in 24 1738.
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278 1 myself clear. What Judge Trikouros is referring to, 2 as was the Staff and the Applicant, is a conclusion on 3 E-37 --
4 MS. CURRAN: It's page E-36, isn't it? Or 5 am I missing something on E-37?
6 JUDGE ABRAMSON: Weren't you reading from 7 E-37?
8 JUDGE TRIKOUROS: Well, no. I paraphrased 9 from the conclusion. The conclusion on page E-37 does 10 not provide any exclusions. That's all.
11 JUDGE ABRAMSON: On page E-.37, not E-36 12 that you were reading from --
13 -JUDGE TRIKOUROS: Right, E-37.
14 MS. CURRAN: Okay.
15 JUDGE TRIKOUROS: That's the overall 16 conclusion in paragraph -- it's Section E.3.7.3, and 17 it doesn't provide -ny exclusions. Now, and I'm 18 asking how one would interpret that.
19 MS. CURRAN: I would interpret this as not 20 covering the seismic risk because there is no 21 documented study, nothing, that contradicts the 22 statement in NUREG 1738. That is the only statement 23 that the NRC points to about seismic risk and it says, 24 We cannot generalize about Diablo Canyon. And we have 25 the environmental report saying fire and seismic are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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279 1 the dominant severe accident risks.
2 JUDGE TRIKOUROS: It is certainly 3 confusing from -- at least from my point of view that 4 one could know that Sandia studies and site mitigation 5 measures overcompensate or compensate for the seismic 6 which they say they don't know.
7 So certainly that is confusing. I'll 8 grant you that. I'm not sure how they reached that 9 conclusion. They don't explain that in here. And we 10 would -- we would add to this that the Shoreline Fault 11 is not considered in this conclusion. And of course 12 this is only a draft. I don't know if that will be 13 fixed later. But -- so certainly we can say that.
14 MS. CURRAN: Yes.
15 JUDGE TRIKOUROS: Is there more?
16 MS. CURRAN: I really think that the --
17 aside from the Shoreline Fault, the most important 18 factor here is that there is one -- only one study 19 that is referenced in this draft revised EIS that 20 talks about seismic risks to the fuel pools in 21 California, including Diablo Canyon, and that's NUREG 22 1738. And absent some documented study that shows, 23 Well, the NRC now has looked at the seismic risk and 24 it's acceptable, then I think what you're left with is 25 that the generalization has a footnote to it which is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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280 1 that footnote you see on page E-35, that the 2 generalization and the conclusion still is footnoted 3 with that exception for Diablo Canyon.
4 JUDGE KARLIN: Page 33, I believe.
5 MS. CURRAN: I'm sorry. Page 33.
6 JUDGE TRIKOUROS: Oh, 33.
7 JUDGE KARLIN: Page 33. Any more 8 questions? You okay?
9 JUDGE TRIKOUROS: Yeah. That's fine.
10 JUDGE KARLIN: All right. I think --
11 thank you, Ms. Curran. We'll take a break for ten 12 minutes. I just realized there's a clock back there, 13 so we can -- we can keep track here. Let's see. What 14 does that say?
15 JUDGE ABRAMSON: Three twenty-two.
16 JUDGE KARLIN: Three twenty-two. So can 17 we reconvene at 3:33? I mean, we really want to be --
18 I'm sorry. We've been taking a lot of time with these 19 questions. It's helpful to us. But now I think we've 20 got to crank it up a little bit or be here very late.
21 So we'll take a break until 3:33. Please be back in 22 here. We are adjourned.
23 (Recess from 3:22 p.m., until 3:33 p.m.)
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281 1 reconvene. It is 3:33, and thank you for being 2 prompt. I know it's a long day and everyone's got to 3 take a bit of a break. But we've got two more 4 contentions to do and I think these may go a little 5 more quickly because we've covered a lot of ground.
6 So, Ms. Curran, we are now in Contention 7 EC-3. If you could tell us what that contention is 8 all about or at least give us a read-- read the 9 contention to us.
10 MS. CURRAN: Okay. EC-3, "The 11 environmental report fails to satisfy NEPA because it 12 does not evaluate the environmental impacts of an 13 attack on the Diablo Canyon spent fuel pool during the 14 operating license renewal term." And this contention 15 is also supported by the waiver petition.
16 JUDGE KARLIN: Right. So you -- you 17 acknowledge, I believe, in your pleadings that in 18 order to get this -- you need a waiver in order for 19 this contention to be admitted?
20 MS. CURRAN: Yes.
21 JUDGE KARLIN: And so you're pursuing a 22 waiver. What's the difference between this contention 23 and EC-2? One of them deals with -- is it only the 24 accident, the initiator's different? One's a --
25 MS. CURRAN: Yes.
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282 1 JUDGE KARLIN: One's a earthquake. One's 2 a terrorist attack. That's the only -- key 3 difference?
4 MS. CURRAN: Yes.
5 JUDGE KARLIN: And --
6 MS. CURRAN: But they share something in 7 common which is that they have -- the draft revised 8 GEIS in each case indicates there are site-specific 9 factors that contributed to the -- to the NRC's 10 analysis. In the case of EC-3, what we're -- what 11 we're after is to get a better understanding of what 12 was the site-specific analysis for Diablo Canyon which 13 is discussed in a draft revised GEIS as -- in that 14 sentence that I read on page E-36. It says, We've 15 looked at every site. We've imposed mitigation 16 measures at every site. We'd like to know what that 17 is and we'd like the environmental report to discuss 18 it and we'd like to be able to see it, comment on it.
19 JUDGE ABRAMSON: Would you like terrorists 20 to have access to it? You don't want that in the 21 public eye, do you?
22 MS. CURRAN: Well, to the extent the 23 information can be publicly disclosed, yes. But, if 24 not, then when we get to -- we haven't even seen what 25 the documents are, so the first step would be give us NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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283 1 the reference documents, disclose them to the extent 2 they can be disclosed under the FOIA, and then we 3 would consider whether to ask for further access to 4 the information.
5 JUDGE KARLIN: But with regard to the 6 draft -- 2009 draft GEIS, we're referring to page E-36 7 and E-33 -- now, I look at E-33 and there it says, 8 "The initiating events included in the analysis are 9 listed below." First one, "Seismic for central and 10 eastern United States sites." The quote goes on to 11 say "excludes Diablo Canyon."
12 So with regard to seismic, I see 2009 13 draft GEIS explicitly excluding Diablo and marking it 14 out as, well, we didn't cover that. I don't see any 15 such exclusion for terrorist attacks for Diablo or 16 something like that. Why is -- does -- so I'm 17 troubled by that. I mean, I see something unique 18 about Diablo with regard to seismic acknowledged here 19 or at least excluded. But I don't see that with 20 regard to anything special about Diablo and 21 terrorists.
22 JUDGE TRIKOUROS: On page 21 of your 23 petition, you specifically say "the potentially 24 significant environmental impacts of spent fuel pool 25 accidents that is not considered in the 1996 license NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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284 1 renewal GEIS." What are they? As Judge Karlin says, 2 they're not seismic-related. What are we talking 3 about? What are these significant impacts that we're 4 talking about that are --
5 MS. CURRAN: The impacts of a successful 6 attack would be a release of the inventory of the 7 spent fuel pools to the environmental and the airborne 8 release. Is that what you're asking?
9 JUDGE TRIKOUROS: Well, the terrorist 10 attacks are not -- terrorist attacks are not -- are 11 they -- let me ask: Are they explicitly considered in 12 the new information? I mean, is there something new 13 that I'm missing here?
14 MS. CURRAN: Yes. In the draft revised 15 GEIS, the NRC Staff claims to have considered the 16 impacts of attacks on spent fuel pools. That's one of 17 the things that's discussed.
18 JUDGE TRIKOUROS: And where is that?
19 MS. CURRAN: Page E-35 and E-36, I 20 believe. It's right after the discussion of NUREG 21 1738.
22 JUDGE TRIKOUROS: Right. NUREG --
23 exactly. NUREG 1738 considered terrorist attacks.
24 MS. CURRAN: Well, no. I'm talking about 25 the draft revised GEIS.
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285 1 JUDGE KARLIN: I think you're referring to 2 page --
3 MS. CURRAN: I'm sorry.
4 JUDGE KARLIN: -- EC- -- no, E-4 of the 5 July 2009 the accident risk and impact assessment, 6 and E-6 there is a discussion of. the San Luis Obispo 7 Mothers for Peace decision and they talk about 8 contamination in land and weight and the Commission 9 essentially concludes that, "In respect to the 10 decision of the Ninth Circuit, the NRC will prepare an 11 analysis of the environmental impacts of a terrorist 12 attack for licensing actions at facilities within 13 geographic boundaries of the Ninth Circuit," which is 14 California. Is that what you're talking about as 15 having some special terrorist thing?
16 MS. CURRAN: Well, I-- I'm sorry. You 17 were reading from E-6?
18 JUDGE KARLIN: I believe it's page E-6, E-19 7, and then E-8 is just before -- if you have that in 20 front of you.
21 MS. CURRAN: Yeah, and my understanding 22 was that the NRC said, We will do this. And then if 23 you flip over to page E-34, --
24 JUDGE KARLIN: All right. I'm on it.
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286 1 starts on E-35 --
2 JUDGE KARLIN: E-35 3 MS. CURRAN: -- I would say.
4 JUDGE TRIKOUROS: Well, there's a 5 discussion on E-35.
6 MS. CURRAN: What?
7 JUDGE TRIKOUROS: There's a discussion on 8 E-35 starting on line 16, I believe.
9 MS. CURRAN: Yeah, and this is what I was 10 assuming was the NRC's -- considers that it's 11 fulfilling the court's mandate. by providing this 12 discussion of the likelihood of consequences of an 13 attack on the spent fuel pools and it says, "Because 14 we've taken these mitigative measures, it's not a 15 significant risk. So where -- in the mitigative 16 measures that were employed and the site-specific 17 analyses that are referred to on page E-36, they are 18 described as site-specific and the generic EIS doesn't 19 give the name of every separate nuclear plant. They 20 just say, We did site-specific analyses. And what 21 we're saying is, Well, one of your site-specific 22 analyses. was for Diablo Canyon and, therefore, we 23 don't -- we think we are entitled to see what you did 24 in this -- in the context of this licensing case, that 25 you -- the NRC needs to disclose to the neighbors of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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287 1 the Diablo Nuclear Plant what was the site-specific 2 analysis that was done and, again, to the extent 3 possible under the Freedom of Information Act which 4 would mean identifying the analyses that were 5 performed, identifying whatever orders there were, and 6 disclosing as much as is consistent with the FOIA.
7 That -- we're asking for a waiver for the 8 purpose of getting that information and participating 9 in that decisionmaking process because the information 10 isn't given in a generic rulemaking and it's site-11 specific. It's appropriate to do it in a site-12 specific way because that's how the analysis was done.
13 JUDGE TRIKOUROS: Well, let's separate 14 this into two parts. There are site-specific 15 mitigation measures and there are the Sandia studies 16 of a more realistic consideration of spent fuel pool 17 cooling under scenarios that might lead to water --
18 loss of coolant.
19 Which are you referring to here?
20 MS. CURRAN: Well, you know, honestly I 21 don't know exactly what was done because it's 22 described only in very general terms here. So, for 23 instance, you have a sentence here, "Based on the more 24 rigorous accident progression analyses," which I think 25 that might refer to the Sandia studies --
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288 1 JUDGE TRIKOUROS: Right.
2 MS. CURRAN: ".the recent mitigation 3 enhancements," which I think probably means to plant-4 specific orders" --
5 JUDGE TRIKOUROS: Right.
6 MS. CURRAN: -- "and NRC site evaluations 7 of every SFP in the United States".. I don't know 8 what that is because there's no reference for that --
9 "the risk of an SFP zirconium fire -initiation is 10 expected to be less than reported in NUREG 1738."
11 So we are -- and this is made in the 12 context of post-September 11th, so our -- we infer 13 that is in response to the threat of an attack, 14 whatever measures that were taken, and we're saying 15 this seems to be a very site-specific analysis, to a 16 significant degree, and, therefore, we ask for a 17 waiver so that the issues can be addressed in the 18 context of this individual licensing case.
19 JUDGE TRIKOUROS: The -- well, first of 20 all, I doubt very much if Sandia analyzed spent fuel 21 pool cooling scenarios for every reactor in the United 22 States, so likely they did it on a generic basis.
23 They picked likely a representative plant in each of 24 the groupings and probably did that. I don't know for 25 sure what they did.
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289 1 But with respect to the -- with respect to 2 site-specific mitigation measures -- and we mentioned 3 this earlier -- everything they did, they did to come 4 up with generic conclusions. They weren't trying to 5 be -- they weren't trying to reach conclusions that 6 were specific to each plant in the United States.
7 From all indications, they just wanted to reach 8 generic conclusions in this document.
9 So how would it help you to get all that 10 information? I mean, what would --
11 MS. CURRAN: It would help --
12 JUDGE TRIKOUROS: What would be the end?
13 MS. CURRAN: -- to evaluate whether the 14 impacts of an attack have been reduced to an 15 acceptable level, to an insignificant level.
16 JUDGE ABRAMSON: Ms. Curran, can we walk 17 through the legal request here so I understand. I 18 think we're getting distracted by wanting the FOIA 19 information which you don't make a request of us for.
20 Let's go through what it is precisely that you're 21 asking.
22 You made a contention that the ER's 23 insufficient because it didn't properly consider the 24 risk of spent fuel pool accidents at this plant.
25 JUDGE TRIKOUROS: From terrorist attacks.
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290 1 JUDGE ABRAMSON: From terrorist attacks.
2 All right. Is that correct?
3 MS. CURRAN: Yes.
4 JUDGE ABRAMSON: Okay. And in order to be 5 able to get that contention admitted, you need, a 6 waiver of a specific Commission regulation or rule 7 that says they're out of the scope of license renewal.
8 Right?
9 MS. CURRAN: That's right.
10 JUDGE ABRAMSON: So what we're addressing 11 first is the question of the waiver, and the waiver 12 rests on the premise that there's new and significant 13 information in the draft EIS; is that correct? -- the 14 new draft GEIS?
15 MS. CURRAN: Yes.
16 JUDGE ABRAMSON: Okay. So that's where 17 we're going. If we were to grant the waiver, then you 18 would have to pursue receiving this information so you 19 could pursue your contention; right?
20 MS. CURRAN: Right.
21 JUDGE ABRAMSON: So we should be focusing 22 now on the waiver, I think.
23 MS. CURRAN: Okay. And the new and 24 significant information --
25 JUDGE ABRAMSON: Right.
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291 1 MS. CURRAN: -- is information showing 2 that the -- the NRC (a) considers the impacts to be, 3 first of all, significant, significant enough to 4 warrant mitigation measures and, two, that the 5 analysis of the significance of the impacts and the 6 mitigation measures are, according to the draft 7 revised'EIS, to some extent site-specific.
8 JUDGE ABRAMSON: Yes.
9 MS. CURRAN: And that is why the generic 10 EIS is inadequate to do the job, but we need a site-11 specific analysis.
12 JUDGE ABRAMSON: So the draft GEIS 13 concludes that spent fuel pool accidents caused by 14 terrorist attacks are low enough frequency that they 15 need not be dealt with, low enough risk, I guess, that 16 they need not be dealt with. And what you're saying 17 is the new --
18 JUDGE KARLIN: Wait a second. Do you want 19 an answer from her?
20 JUDGE ABRAMSON: Yes. She -- is that 21 correct?
22 MS. CURRAN: Yes.
23 JUDGE KARLIN: Okay. She nodded but --
24 JUDGE ABRAMSON: You're right. Thank you.
25 And your assertion is that that conclusion, which is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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292 1 in the draft GEIS, rests upon information that's in 2 the draft GEIS and that's the new and significant 3 information and you don't know what that new and 4 significant information is and you need a waiver so 5 you can find -- a waiver of the reg. that says spent 6 fuel pool accidents caused by terrorist attacks are 7 outside the scope, you need a waiver of that so you 8 can find out how the Commission concluded that these 9 remain low-risk events?
10 MS. CURRAN: That's right because the 11 information appears to be site-specific.
12 JUDGE ABRAMSON: Yeah. Okay. I 13 understand.
14 JUDGE TRIKOUROS: But do you see a 15 uniqueness in Diablo Canyon here?
16 MS. CURRAN: Well, every --
17 JUDGE TRIKOUROS: Everything you just said 18 I think can be said for every plant in the United 19 States.
20 JUDGE ABRAMSON: Yeah, but we don't 21 know --
22 MS. CURRAN: Every plant was dealt with in 23 a unique way, yes. So if we were neighbors of a 24 different nuclear plant, we would say the same thing.
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293 1 of the NRC's analysis.
2 JUDGE ABRAMSON: We --
3 JUDGE KARLIN: Well, isn't that a problem, 4 though?
5 JUDGE TRIKOUROS: I don't know --
6 JUDGE KARLIN: Because a waiver, you have 7 to ostensibly at least -- one of the Millstone factors 8 is you have to show there's something unique about 9 this plant and I thought you were talking -- spent 10 some time talking about the agricultural, you know, 11 land and the -- California's agriculture is' three 12 times -- average is three times higher than the 13 nation's and that sort of thing.
14 MS. CURRAN: Well, that's one of the 15 factors that's unique but it's not the only one, that 16 if the Commission says, We looked at each plant 17 separately, that is a way of saying each plant is 18 unique.
19 JUDGE KARLIN: Well, no, no. I'm not so 20 sure that that's logically true. I mean, isn't that 21 just basic inductive reasoning; that is, in order to 22 reach a general conclusion, you take a whole bunch of 23 data points and look at each one of them individually 24 and then you reach some generic conclusion that, We've 25 looked at all of these and they're all the same with NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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294 1 regard to X.
2 MS. CURRAN: Well --
3 JUDGE KARLIN: That :'s how you reach a 4 general -- a generic conclusion.
5 MS. CURRAN: It might be --
6 JUDGE KARLIN: You look at individuals.
7 MS. CURRAN: For instance, say in NUREG 8 1150, the severe accident report, there's 9 representative nuclear plants.
10 JUDGE KARLIN: Representative. I see.
11 Okay.
12 MS. CURRAN: Analyzed and then 13 generalizations are made. But here it says, "The NRC 14 did site evaluations of every SFP --
15 JUDGE KARLIN: Right.
16 MS. CURRAN: -- in the United States."
17 That to us indicates something different, not we took 18 a representative sampling but every single one we felt 19 warranted -- this is a very important --
20 JUDGE KARLIN: Isn't that better than a 21 representative sample? That's a hundred percent 22 sampling and that's exactly the sentence that Mr.
23 Tyson Smith was quoting as proving his case with 24 Contention EC-2 which is, Well, look, they've already 25 concluded that there's no problemo.
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295 1 MS. CURRAN: But, to me, it seems like the 2 NRC is having it both ways. It's saying. to the 3 public, We take this so seriously -- we take this very 4 seriously. That's a good thing. The NRC takes spent 5 fuel pool risk very seriously and, therefore, it has 6 done a separate analysis of every single spent fuel 7 pool in the country. Terrific.
8 But if you're going to do that, you can't 9 claim it's generic. If you're going to say to people, 10 We're protecting you because we looked at your nuclear 11 plant,. you know, to the neighbors at Diablo Canyon, 12 We're looking at Diablo Canyon but we're not going to 13 tell you what we did because it's generic. That's --
14 you can't have it both ways.
15 JUDGE KARLIN: Okay.
16 JUDGE TRIKOUROS: I'm still confused. Are 17 you referring to the Sandia work or are you referring 18 to the other?
19 MS. CURRAN: I'm referring to the NRC --
20 there's no documentation of what this is, but in this 21 draft revised EIS, it says, "The NRC did site 22 evaluations of every SFP in the United States."
23 JUDGE ABRAMSON: That's her -- that's the 24 assertion. Let's --
25 JUDGE TRIKOUROS: Okay.
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296 1 JUDGE KARLIN: Let me -- okay. I think --
2 may I jump to another -- in terms of the unique -- the 3 land contamination issue, you talk about the 4 photoagricultural area that the plant is located in, 5 help me with -- and I'm not sure I understand. There 6 is a COI 08-26; right? This is a Pacific Gas &
7 Electric Diablo Canyon ISFSI, independent spent fuel 8 storage installation decision, of October 23, 2008.
9 And there, the Commission talksabout the assertion in 10 the context of the spent fuel -- I'm sorry -- the 11 spent fuel installation, not the pool, that you had 12 alleged. I think you represented the Mothers for 13 Peace in that case. That was, you know, an important 14 agricultural area, and the Commission seems to reject 15 that concept and say, quote on page 520, 68 NRC 509, 16 page 520, "PG&E lists several additional 17 characteristics at Diablo Canyon site." Skip. "First 18 of all, the power plant site is large and is located 19 in a sparsely populated region so the number of 20 exposed individuals would be small. The costs of 21 evacuation or relocation would be small. Moreover, 22 PG&E also owns and controls a large area of land 23 surrounding the site. Relatively little of this land 24 is productive and the nearest dairy is 12 miles away, 25 so any costs associated with protective actions for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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297 1 ingestion pathways would be minimal."
2 Now, the Commission cited that seemingly 3 with approval and ruled against you with Commission 4 Chairman Jaczko, now dissenting.
5 Have you appealed that decision? What's 6 the status of that decision?
7 MS. CURRAN: Yes. We have but on a 8 different issue. But I think --
9 JUDGE KARLIN: And has it bee decided?
10 MS. CURRAN: -- I can explain that -- I 11 guess I'd like to address your question about the 12 consequences of the accident. The scenario that was 13 analyzed by the NRC in that particular case was one in 14 which say an airplane was flown into a cask or a truck 15 bomb set off in which you would have -- the cask would 16 be opened up but there would be some minor 17 relatively minor escape --
18 JUDGE KARLIN: Okay.
19 MS. CURRAN: -- of radioactive material.
20 What we were positing in that case, which was 21 rejected, but which we're also positing in this 22 particular hearing request, is if fuel catches fire, 23 it's very different -- very, very different situation.
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298 1 Chernobyl. That kind of thing is what we're talking 2 about. It would have very far-reaching consequences.
3 The kind of accident that was evaluated in 4 that case, one of our criticisms of the decision was 5 we didn't think it was a credible -- it wasn't 6 something that would have been attempted because it 7 would have very little effect.
8 JUDGE KARLIN: But -- okay. So the 9 distinction between that case is it was a spent fuel 10 cask which would not be -- is different from a spent 11 fuel pool where there would be a lot of fuel lots 12 presumably close together or something like that.
13 MS. CURRAN: It's really the difference 14 between impact to a cask and a fire.
15 JUDGE KARLIN: Yeah. Right.
16 MS. CURRAN: A fire in any spent fuel 17 assembly would have significant off-site effects.
18 JUDGE KARLIN: And is -- what's the status 19 of this case? -- COI- -- is it on appeal?
20 MS. CURRAN: It is on appeal in the Ninth 21 Circuit. Yes.
22 JUDGE KARLIN: And has it been briefed?
23 MS. CURRAN: Yes. It's been briefed.
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299 1 -- we don't know whether we'll have an oral argument 2 or a decision.
3 JUDGE KARLIN: Okay. All right. Thank 4 you.
5 JUDGE TRIKOUROS: What do you say about 6 the argument that's made that there's really no 7 difference whether the failures are human sabotage-8 related or just random failures or common mode 9 failures or whatever might cause a core melt? You're 10 really talking about the same thing.
11 MS. CURRAN: Well, you might be talking 12 about the same thing in terms of the consequences if 13 the release were to happen. But we presume that the 14 mitigative measures would be related to the way the 15 release could be caused. So, for instance, if you 16 were trying to mitigate an attack on a spent fuel 17 pool, you might try to protect the pool from an 18 attack. That would be a way to mitigate the pool 19 fire. Whereas if you were trying to protect it from 20 something falling in it, then you do something 21 different.
22 JUDGE TRIKOUROS: Are we -- I think we're 23 -- I think I'm getting the impression we're talking 24 apples and oranges. The site-specific mitigation 25 measures were spent-fuel-pool-related; right? This NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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300 1 contention is reactor-related. Am I missing 2 something? There's nothing --
3 MS. CURRAN: This czontention is pool-4 related.
5 JUDGE KARLIN: This is pool. This is 6 pool.
7 JUDGE ABRAMSON: This is spent fuel pool.
8 MS. CURRAN: Number four is reactor-9 related.
10 JUDGE KARLIN: Four is reactor.
11 JUDGE TRIKOUROS: Yeah.
12 JUDGE KARLIN: We're on three.
13 JUDGE ABRAMSON: We're still on three, 14 Nick.
15 JUDGE TRIKOUROS: Oh, I'm sorry.
16 MS. CURRAN: It's okay. I'm really 17 getting tired.
18 JUDGE TRIKOUROS: Yeah. It's been a long 19 day.
20 JUDGE ABRAMSON: Let's get it over with.
21 Move to four.
22 JUDGE KARLIN: I'm not tired. We're ready 23 to go five more hours.
24 JUDGE ABRAMSON: Let's hear it. Got any 25 questions for anybody else on this?
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301 1 JUDGE KARLIN: Any more questions for Ms.
2 Curran at the moment? We will have an opportunity to 3 ask her again.
4 AUDIENCE MEMBER: Excuse me. Could you 5 speak into the microphones. We can't hear the panel 6 very well. Could you use the microphones.
7 JUDGE KARLIN: All right. We will try to 8 do that. I'm sorry.
9 AUDIENCE MEMBER: Thank you. This morning 10 it was clear. Now it's not. Thank you.
11 JUDGE KARLIN: Okay. .Sorry about that.
12 We will -- we'll all try to do a little bit better.
13 JUDGE TRIKOUROS: Are they on?
14 JUDGE KARLIN: We now have two sets of 15 mikes because, well, the court reporter needs a 16 separate mike.
17 JUDGE TRIKOUROS: Are these on? Do we 18 know they're on?
19 JUDGE KARLIN: I believe that they are on.
20 Yes.
21 JUDGE TRIKOUROS: Is that better? Testing 22 1, 2, 3.
23 JUDGE KARLIN: The light shows that it is 24 on. Just --
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302 1 the one I cannot hear.,
2 JUDGE ABRAMSON: Is your yellow light on?
3 His light's --
4 JUDGE TRIKOUROS: Can you hear me if I 5 speak into this like that?
6 JUDGE KARLIN: Your light shows to be on.
7 Press that button, that yellow button. Maybe we can 8 turn the volume up a little bit without getting too 9 much --
10 JUDGE TRIKOUROS: Is that better?
11 AUDIENCE MEMBER: That's good. Thank you.
12 JUDGE TRIKOUROS: Somehow I think I shut 13 off --
14 AUDIENCE MEMBER: Thank you.
15 JUDGE TRIKOUROS: Thank you.
16 JUDGE KARLIN: All right. Mr. Tyson 17 Smith.
18 MR. T. SMITH: Yes.
19 JUDGE KARLIN: Yes. In your reply -- I 20 have a question and I don't think I have too many for 21 you, but the reply at page 15 says that the 1996 GEIS 22 considered only sabotage against reactors but not 23 considered attacks on spent fuel pools. But it 24 says -- and I think I've got a quote here -- "Both the 25 means of attack and the alternatives for avoiding or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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303 1 mitigating attacks would be different for a reactor 2 than for a spent fuel pool and, thus, the 3 environmental analysis of those impacts would be 4 different." I'm sorry. That's what the reply says.
5 MR. T. SMITH: Right.
6 JUDGE KARLIN: That's what San Luis Obispo 7 is saying, that "the means of attack and the 8 alternatives for avoiding the attack would be 9 different for a reactor than for a pool and, thus, the 10 analysis of those impacts would be different."
11 How do you respond to that?
12 MR. T. SMITH: Well, the 1996 GEIS did 13 include the risks of a terrorist attack on the spent 14 fuel pools.
15 JUDGE KARLIN: Sabotage.
16 MR. T. SMITH: Sabotage.
17 JUDGE KARLIN: It covered sabotage. I 18 understand. Okay.
19 MR. T. SMITH: Correct. I think that's an 20 incorrect statement.
21 JUDGE KARLIN: Well, but let me ask the 22 other question then. Does -- when you're looking at 23 a -- the means of attack and the alternatives for 24 avoiding an attack, would the alternatives for 25 avoiding an attack on a spent fuel pool be different NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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304 1 than avoiding an attack on say an ISFSI or a reactor?
2 MR. T. SMITH: Potentially.
3 JUDGE KARLIN: Potentially.
4 MR. T. SMITH: There's a range of 5 responses that could be taken to avoid or mitigate the 6 consequences of an attack, depending on the form of 7 the attack, the difference if it's individual 8 personnel on the ground versus some sort of aircraft.
9 JUDGE KARLIN: Right. And I'm not sure 10 whether this is a SAMA contention necessarily, but do 11 you -- they seem to be saying that when you're doing 12 a SAMA analysis, severe accident mitigation 13 alternatives analysis, that you don't just look at 14 mitigation but you look at methods for avoiding the 15 severe accident as well.
16 Do you agree that avoidance and prevention 17 is a part of a SAMA analysis?
18 MR. T. SMITH: Yes, I do, but this is not 19 a SAMA analysis.
20 JUDGE KARLIN: Okay.
21 MR. T. SMITH: Again, this is -- we're 22 talking about the spent fuel pool --
23 JUDGE KARLIN: Right.
24 MR. T. SMITH: -- rather than a severe 25 accident.
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305 1 JUDGE KARLIN: Some of the contentions are 2 SAMA analysis.
3 MR. T. SMITH: Right.
4 JUDGE KARLIN: I don't --
5 MR. T. SMITH: This one I don't believe is 6 characterized -- I would not characterize this as a 7 SAMA contention.
8 JUDGE KARLIN: Okay.
9 MR. T. SMITH: With respect to mitigation 10 alternatives, however, the Commission has broadly 11 required that all plants across the country implement 12 mitigation measures to maintain or restore spent fuel 13 cooling in the event of a terrorist attack. Those 14 have been required for all plants. It's been 15 confirmed at all plants by an NRC review and 16 inspection. And that was the basis for the generic 17 conclusion.
18 JUDGE KARLIN: You're talking about the 19 orders?
20 MR. T. SMITH: I'm talking about the 21 orders which were subsequently embodied in a 22 rulemaking on which the public, including the Mothers 23 for Peace, of course, had a chance to comment.
24 JUDGE KARLIN: Okay.
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306 1 analyses.
2 MR. T. SMITH: The Sandia analysis is also 3 part of the Commission's conclusions in the revised 4 GEIS or draft GEIS.
5 And you asked about -- just briefly, I 6 want to clarify the status of COI 08-26.
7 JUDGE KARLIN: Yes.
8 MR. T. SMITH: That case did involve an 9 appeal that's currently, as Ms. Curran mentioned, 10 before the Ninth Circuit, but as I understand it, they 11 didn't appeal that aspect of the Commission's 12 decision, which was Contention 2. They've appealed it 13 on process grounds, the type of hearing that they were 14 given, and their access to documents and not on the 15 basis of that conclusion that you were citing.
16 JUDGE KARLIN: I mean, that -- there was 17 a dissent filed by Commissioner Jaczko, then 18 Commissioner, now Chairman Jaczko, saying he disagreed 19 with the conclusion that the land contamination might 20 not be a problem it seemed like. And they didn't 21 appeal that? That's not in the --
22 MR. T. SMITH: Correct.
23 JUDGE KARLIN: -- review? So -- okay.
24 And -- okay. Go ahead.
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307 1 talking about, the site-specific measures and the 2 Sandia work, none of that was referenced in the draft 3 GEIS. Is that typical that -- well --
4 MR. T. SMITH: I believe it was referenced 5 in the draft GEIS, the Sandia study, on -- I believe 6 we were looking at it earlier on page -- must be --
7 JUDGE TRIKOUROS: Do you see a reference 8 to the Sandia study?
9 JUDGE KARLIN: I don't remember.
10 MR. T. SMITH: -- E-35. "Subsequent to 11 the terrorist attacks, additional -- significant 12 additional analyses have been performed to support the 13 view that the risk of a successful terrorist attack; 14 i.e., one that results in a zirconium fire, is very 15 low."
16 The Commission in their denial of the 17 petition for rulemaking that I was discussing earlier 18 also specifically addressed --
19 JUDGE KARLIN: Oh, the very next sentence, 20 they do say, "These analyses were conducted and said 21 by Sandia." So you see that at the bottom of page 22 E-35?
23 JUDGE TRIKOUROS: Yeah, but there's no --
24 I mean, they mention the analyses --
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308 1 a particular report.
2 JUDGE TRIKOUROS: There's no reference to 3 any document or anything like that.
4 MR. T. SMITH: No. There is no reference 5 to a particular document.
6 JUDGE KARLIN: Okay. Ms. Curran has I 7 think acknowledged -- said that Contention EC-2 and 8 EC-3, the only difference really seems to be the 9 initiator. One's a seismic event and one's a 10 terrorist attack. Do you agree that that seems to be 11 the --
12 MR. T. SMITH: I would agree. Yes.
13 JUDGE KARLIN: -- they're analogous in 14 that way? And she indicates that -- well, I -- that 15 there's information -- the new and significant 16 information not only with regard to seismic issues as 17 in EC-2 but with regard to terrorist attack issues for 18 EC-3 and finds that that's in the 19- -- I'm sorry --
19 2009 GEIS. Do you agree with that?
20 MR. T. SMITH: I don't agree that there's 21 any new and significant information. She was focusing 22 on the fact that there were apparently some site-23 specific reviews performed, and I agree entirely with 24 Your Honor that of course there's no way you can make 25 a generic conclusion without a basis and you generate NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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309 1 a basis by looking at individual plants. And, here, 2 the NRC has done that and they've concluded that 3 across the board the risk of a zirconium fire from a 4 terrorist attack is low.
5 JUDGE KARLIN: Is the Ninth Circuit's 6 decision new and significant information?
7 MR. T. SMITH: It is not. And the 8 Commission has subsequently addressed that in the 9 context of license renewal and they distinguished it 10 clearly on the grounds that in an ISFSI proceeding, 11 they made no statements about the likelihood or the 12 impacts of an attack but they have addressed it in the 13 GEIS for license renewal.
14 JUDGE KARLIN: So you're talking about the 15 New York v. -- the New York case in the Second 16 Circuit?
17 MR. T. SMITH: I think --
18 JUDGE KARLIN: In the Oyster Creek case?
19 MR. T. SMITH: It would be the New Jersey 20 Department of Environmental Protection in the Third 21 Circuit. But I'm more specifically talking about the 22 Commission's Oyster Creek decision where they 23 addressed the differences between the Mothers for 24 Peace Ninth Circuit decision and they said the 25 difference is for -- in the GEIS, We've specifically NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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310 1 addressed the risks and the consequences of a 2 terrorist attack.
3 JUDGE KARLIN: And by that, they mean the 4 1996 GEIS talks about sabotage.
5 MR. T. SMITH: And that's -- correct. And 6 they've confirmed that decision as recently as 2008 in 7 their denial of the petition for rulemaking which I 8 was mentioning earlier which also addressed new 9 information regarding terrorist attacks and the 10 Commission reconfirmed their conclusions in the GEIS 11 that the.--
12 JUDGE KARLIN: Yeah. I see the Third 13 Circuit and the Second Circuit's decisions as highly 14 deferential to the Agency. And you don't think that 15 the 9/11 attacks are any new and significant 16 information with regard to the approaches for 17 terrorist attacks?
18 Isn't it correct that the 1996 sabotage 19 analysis in the GEIS really just dealt with people 20 rolling up with a big truck or attacking on the ground 21 and no one thought about an airplane smashing into a 22 facility?
23 MR. T. SMITH: I can't say what went on --
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311 1 in other places, that the -- a terrorist-initiated 2 event is not that different than other severe 3 internally-initiated accidents. So it seems that the 4 conclusions would apply equally, but I can't say what 5 they were thinking at the time.
6 JUDGE KARLIN: Okay. Any questions?
7 Okay. Thank you, Mr. Smith.
8 MR. T. SMITH: Thank you.
9 JUDGE KARLIN: Staff. Mr. Subin. Let's 10 see if we have any questions for you.
11 JUDGE TRIKOUROS: I may have one.
12 MR. SUBIN: As long as I don't need a 13 doctorate to answer it.
14 JUDGE KARLIN: On your -- in your answer 15 on page 41 -- and I think this is not that troublesome 16 but I think I want to just ask this one thing.
17 MR. SUBIN: You're referring to the 18 answer, not the answer to the waiver?
19 JUDGE KARLIN: I'm sorry. Your answer, I 20 think, on --
21 MR. SUBIN: Right. Okay. Forty-one.
22 JUDGE KARLIN: -- on page 41.
23 MR. SUBIN: Just to clarify.
24 JUDGE KARLIN: You say -- let's all try to 25 speak up. I'm sorry. I think we're being remiss.
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312 1 Page 41, "Without any basis, San Luis Obispo Mothers 2 for Peace have presumed that the NRC did indeed rely 3 on site-specific measures for evaluation of the 4 impacts of attacks on the DCNPP spent fuel pool and 5 appropriate mitigation measures."
6 Without any basis, they have presumed that 7 they relied on site-specific. Now, isn't she citing 8 to us this page out of 2009 that says, Look, you know, 9 it says we have done a bite-specific analysis of every 10 site in the United States?
11 MR. SUBIN: Correct. As the Judges-12 more than one have said --
13 JUDGE KARLIN: So is there some basis for 14 that?
15 MR. SUBIN: -- that's how you get the 16 generic finding.
17 JUDGE KARLIN: But didn't -- when you say 18 it's without any basis, you're presuming they did a 19 site-specific analysis.
20 MR. SUBIN: Right, and, therefore, the 21 site-specific just -- therefore, this needs to be 22 site-specific. This is done -- but this is done as a 23 Category 1, not a Category 2.
24 JUDGE KARLIN: I'm sorry. Speak up, 25 please.
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313 1 MR. SUBIN: It's not -- it's not a 2 Category 2. I thought that's what she was -- we think 3 that's what she was referring to.
4 JUDGE KARLIN: Okay. I mean -- all right.
5 Any other questions?
6 JUDGE ABRAMSON: Nope.
7 JUDGE TRIKOUROS: No. I don't think so.
8 JUDGE KARLIN: All right.
9 MR. SUBIN: Okay.
10 JUDGE KARLIN: Mr. Subin, you get off 11 easy. We're getting tired. We're all getting tired.
12 I appreciate patience.
13 Well, we do have a -- do we have any 14 additional questions for Ms. Curran at this point?
15 JUDGE ABRAMSON: No.
16 MS. CURRAN: I need to make a correction.
17 JUDGE KARLIN: All right. Please. If you 18 can make it brief.
19 MS. CURRAN: And then I'll just stay up 20 here.
21 JUDGE KARLIN: Okay, because we've got the 22 next contention coming.
23 JUDGE ABRAMSON: Got your books for the 24 next one?
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314 1 contents of our brief to the Ninth Circuit and I'd 2 just like to correct the misimpression that all we 3 raised in the Ninth Circuit were issues related to 4 process. We challenged the substantive decision in 5 the Commission's case which relates to what are the 6 consequences of an attack on the dry storage facility 7 at Diablo Canyon. That's very much in play.
8 JUDGE KARLIN: All right. And I suppose 9 that it's all on the record somewhere in the Ninth 10 Circuit what the briefs say.
11 MS. CURRAN: Yes.
12 JUDGE KARLIN: If we find that to be a key 13 element, we may take administrative notice of what's 14 in those briefs or at least that point and only that 15 point.
16 Okay. With that, we will move to the 17 final contention, EC-4, which --
18 JUDGE TRIKOUROS: I was --
19 JUDGE KARLIN: Okay. Well, why don't you 20 start, Judge Trikouros? Let me get organized.
21 JUDGE TRIKOUROS: No.
22 JUDGE ABRAMSON: Why don't we let her read 23 it while we're waiting.
24 JUDGE KARLIN: Yeah. Why don't you read 25 it and --
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315 1 MS. CURRAN: Okay. The contention reads, 2 "The environmental report fails to satisfy the 3 National Environmental Policy Act because it does not 4 discuss the cost-effectiveness of measures to mitigate 51 the environmental impacts of an attack on the Diablo 6 Canyon reactor during the license renewal term."
7 JUDGE ABRAMSON: Attack meaning terrorist 8 attack?
9 MS. CURRAN: Yes.
10 JUDGE KARLIN: All right.
11 JUDGE ABRAMSON: And you don't need a 12 waiver for that or you do?
13 MS. CURRAN: *We don't believe we do.
14 JUDGE KARLIN: Yeah. Why is that? Why 15 don't you need a waiver for that? The Applicant says, 16 Oh, the waiver is necessary here. Isn't that covered 17 by the appendix whatever?
18 MS. CURRAN: Well, --
19 JUDGE KARLIN: Or generic --
20 MS. CURRAN: -- no, I don't think so. It 21 -- this falls under the regulation -- I think it is 10 22 CFR 51.53(c) (3) (ii) (L), which requires the 23 consideration of SAMAs for reactor accidents. And 24 we're saying what is an accident but an uncontrolled 25 release of radioactivity from a nuclear plant and the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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316 1 cause could include negligence or act of God or 2 someone doing harm to the plant. It's an 3 unintentional catastrophic release of radioactive 4 material. And as a result of the Ninth Circuit's 5 decision in San Luis Obispo Mothers for Peace v. NRC 6 in 2006, the impacts of -- if the impacts of terrorist 7 attacks on nuclear facilities now must be included in 8 an EIS, then so should SAMAs. In other words, 9 measures to mitigate or avoid those -- the impacts of 10 those attacks.
11 And we don't think that a waiver is 12 necessary to reach that issue.
13 JUDGE ABRAMSON: So read me the contention 14 again, please.
15 MS. CURRAN: "The environmental report 16 fails to satisfy the National Environmental Policy Act 17 because it does not discuss the cost-effectiveness of 18 measures to mitigate the environmental impacts of an 19 attack on the Diablo Canyon reactor during the license 20 renewal term."
21 JUDGE ABRAMSON: Okay. So your 22 proposition here is that the ER -- that the SAMA 23 analysis needs to include terrorist attacks because --
24 MS. CURRAN: That's right.
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317 1 decision?
2 MS. CURRAN: That's right.
3 JUDGE KARLIN: Okay. So it's a SAMA 4 contention.
5 JUDGE TRIKOUROS: But it doesn't mention 6 SAMA in the --
7 JUDGE ABRAMSON: Well, it does.
8 JUDGE KARLIN: It says "mitigate," but it 9 doesn't say SAMA.
10 JUDGE ABRAMSON: It says mitigation, so 11 that takes you to SAMA.
12 JUDGE KARLIN: Okay.
13 JUDGE TRIKOUROS: I have a question.
14 JUDGE KARLIN: Yeah.
15 JUDGE TRIKOUROS: You reference Table 16 F.5-3.
17 JUDGE KARLIN: Closer to the mike.
18 JUDGE TRIKOUROS: Oh, I'm sorry. It says, 19 "Table F.5-3 analyzes 25 SAMAs, each of which is 20 specifically tailored to an internal event. For each 21 SAMA, the table gives a detailed description of how it 22 works to mitigate the effect of the event. Thus, the 23 SAMA analysis takes into account the characteristics 24 of the specific internal events."
25 MS. CURRAN: Uh-huh.
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318 1 JUDGE TRIKOUROS: I looked at that table 2 and I couldn't relate it to a specific event. Maybe 3 you could help me with that. But --
4 JUDGE ABRAMSON: But the point she's 5 making, Nick, is that it doesn't address externally-6 initiated events like terrorist --
7 JUDGE TRIKOUROS: It doesn't address --
8 from what I can see, it doesn't address any of that.
9 It doesn't -- it's not specific to events that I could 10 see.
11 (Pause.)
12 MS. CURRAN: I'm not a nuclear engineer.
13 JUDGE TRIKOUROS: Yeah.
14 MS. CURRAN: But it looked to me as though 15 these -- there's really a lot of detail in these SAMAs 16 that seems to relate to this is how the accident is 17 happening and this is how we would put a wrench in to 18 keep it from going further, basically.
19 JUDGE TRIKOUROS: Yeah.
20 MS. CURRAN: And so I -- what I was trying 21 to get at was with an attack, the same way that you 22 would look at -- how could we for each stage of this 23 thing, this progression, how could we keep it from 24 getting worse from the consequences being severe. You 25 would do the same thing for an attack. You might NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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319 1 strengthen the containment. You might put more guards 2 at the door. You know, there's a number of things 3 that you might do to prevent -- to mitigate the 4 likelihood of the attack or to keep the attack from 5 progressing as far as it might go otherwise, and that 6 -- so, in other words, to say that we've already 7 looked at SAMAs doesn't really answer the question 8 about what are the SAMAs for an attack.
9 JUDGE TRIKOUROS: I mean, there is no 10 attack scenario -- there is no specific attack 11 scenario that you've identified in your contention 12 with a demonstration that, Well, look at this 13 scenario. This attack scenario would not be covered 14 by one of these 25 SAMAs. There was nothing like 15 that. It was just the statement that, you know, this 16 is -- these SAMAs are event-specific and don't apply 17 to terrorist attacks. I mean, clearly one could 18 devise terrorist attacks for which these SAMAs would 19 be extremely helpful. So help me with that. Where 20 were you --
21 MS. CURRAN: Well, the burden in our view 22 is on PG&E in the first instance to identify the 23 credible attack scenarios and then evaluate SAMAs for 24 them. That is not within the ability or the 25 responsibility of the Mothers for Peace. That -- this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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320 1 hasn't been done at all is our complaint, that -- that 2 PG&E needs to take the first step to do it.
3 It would be one thing if they tried it and 4 they left something out, but they haven't even -- they 5 haven't even gotten over the threshold to do it at 6 all.
7 JUDGE TRIKOUROS: Well, one could spend 20 8 years doing that also in the sense that how many --
9 where do you stop? How many -- you know, how would 10 one do it I guess is certainly a question that comes 11 up.
12 MS. CURRAN: Well, but if you're asking 13 the question that is so open-ended that who could 14 possibly do this, that issue was resolved in the Ninth 15 Circuit decision where basically the court said to the 16 NRC, NRC, you make a lot of representations to the 17 public that you're capable of analyzing what are 18 credible scenarios and preventing them, and the 19 only -- the only context in which you will do that is 20 in a NEPA context and we're telling you you have to do 21 it in that context, too. So the NRC has shown itself 22 to be capable of identifying credible scenarios and 23 figuring out how to mitigate them or prevent them, and 24 we're saying, You need to do that in a NEPA context.
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321 1 spent fuel pool I think.
2 JUDGE ABRAM4SON: Yeah. I'm sure you 3 realize the extent of the exercise that you're 4 suggesting, that they that the Applicant needs to 5 go through and dream up all possible attack scenarios 6 and then consider what the releases might be and try 7 to figure out what mitigation measures might be 8 associated with them and then do a SAMA analysis for 9 those. It is an enormous task. I don't -- I'll have 10 to think very carefully about whether that falls --
11 whether the concept of the Ninth Circuit ruling 12 extends to this, and I'm sure the Staff and the 13 Applicant have thought about it a lot. It is an 14 enormous task.
15 MS. CURRAN: Well, if I could just respond 16 to this, to your concern for a moment. These are all 17 things that the NRC and all nuclear plant licensees do 18 in the context of security, which is hidden from the 19 public. And so the question that was addressed in the 20 Ninth Circuit decision was: Is there an element of 21 that that is covered by NEPA such that the Agency and 22 the Applicant also need to be accountable to the 23 public for these things that they do anyway but which 24 are done in secret so that the public has a way of 25 having an influence on the process of advocating for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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322 1 greater security because these security measures have 2 a profound effect on environmental protection.
3 That is the -- it's not that these things 4 aren't done. It's just that they are not done in 5 public. They're not done with the kind of 6 accountability that NEPA would give for agency 7 decisionmaking.
8 JUDGE ABRAMSON: I don't believe that 9 that's an accurate statement, although I must say I 10 don't have detailed information on what the Staff does 11 on this. But I think to say -- to -- yet you're 12 implying that the Staff and Applicants have analyzed 13 potential consequences of these -- of terrorist 14 attacks, of a wide variety of scenarios of terrorist 15 attacks, and extended those to a SAMA-type analysis is 16 inaccurate and you're asking that it be done. I don't 17 -- I'll -- we'll have to think about that.
18 JUDGE KARLIN: Well, let me ask this: As 19 I understand it, in the -- there's safety side, which 20 is Atomic Energy Act, and there's a NEPA side, 21 environmental impact statement, environmental -- ERs, 22 and on the safety side, part of the San Luis Obispo 23 Mothers for Peace Ninth Circuit decision, I thought 24 the argument you made was, Well, look, we're not 25 asking for an infinite number of different scenarios NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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323 1 of attack but we are arguing that the Commission 2 already has postulated several scenarios of attack, 3 not necessarily known to us, but that they do -- known 4 to you -- but that they do this in the safety context 5 and why can't they just do it in the environmental 6 context as well.
7 And I saw that was part of your argument.
8 Now, however, I think that the -- there's 9 a statement made by the Staff on page 47 of their 10 brief and they talk about the Ninth Circuit decision 11 -- the Applicant I think does the same thing -- and 12 says, Well, no, no. Wait a second. The Ninth Circuit 13 -- "The Ninth Circuit's holding is limited by the 14 facts before it. In the Ninth Circuit case, the NRC 15 categorically argued that NEPA did not require the 16 Agency to prepare an assessment of terrorist threats 17 as part of its NEPA analysis." Citation is there.
18 And goes on, "This proceeding, like the Oyster Creek 19 proceeding, is different in that the environmental 20 analysis at issue rests on a discussion of terrorism 21 contained in the GEIS, not a categorical determination 22 that terrorist attacks are outside of the scope."
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324 1 No, NRC. You cannot just categorically say we're not 2 going to do this. Here, they say, Well, we're not 3 arguing that. We're arguing that in fact we did do it 4 back in 1996 and so this is a different case and Ninth 5 Circuit doesn't apply.
6 Your analysis and response? How -- is 7 that -- that seems like a reasonable discussion of the 8 case.
9 MS. CURRAN: We are not in this contention 10 disputing that in 1996 -- it might have been a little 11 bit later. I think it might have been in a 12 supplemental '96 EIS --
13 JUDGE KARLIN: Okay.
14 MS. CURRAN: -- that the NRC looked at the 15 impacts of an attack on a nuclear plant. But the 16 heart of a NEPA analysis is the analysis of 17 alternatives. That's --
18 JUDGE KARLIN: Right.
19 MS. CURRAN: The analysis of impacts is 20 very important, but really the heart of it is looking 21 at the cost-effectiveness of measures to avoid or 22 mitigate the impacts and they never got that far. And 23 what we're saying here is, You need to take the next 24 step. It just didn't happen yet. And now is the time 25 we're asking for it.
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325 1 JUDGE KARLIN: Okay. Now, with regard to 2 alternatives, they hammer on this Duke Energy/McGuire 3 case. I have it here in front of me. I'm not sure 4 whether I have the cite to it. July 23, 2002. It's 5 cited numerous times in their brief. And here, the 6 Commission, among other things, seemed to reject a 7 SAMA contention and they said on page 11, "We find 8 that the Petitioner's minimal information in support 9 of their contention was inadequate. For any severe 10 accident concern, there are likely to be numerous 11 conceivable SAMAs and, thus, it will always be 12 possible to come up with some type of mitigation that 13 has not been addressed by the licensee. In the end, 14 whether a SAMA alternative is worthy of more detailed 15 analysis in an environmental report or SEIS hinges 16 upon whether it may be cost-beneficial."
17 And then they talk about -- close quote.
18 And then they talk about, you know, the Petitioner 19 needs -- because there's any number of theoretically 20 possible SAMAs may be conceived, the Petitioner has to 21 give some showing of sort of a -- why this alternative 22 that you're suggesting might be more beneficial.
23 I mean, have you done that? I mean, I 24 don't see where you've helped us to even address that 25 issue?
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326 1 MS. CURRAN: I would say the McGuire case 2 is distinguishable because that case involved SAMAs 3 for accidents -- accidentally-caused accidents where 4 the NRC and the applicant were already in the process 5 of looking at SAMAs. They had a list of SAMAs. The 6 intervenors came in and said, You didn't look at this 7 other SAMA that we would have liked you to address.
8 JUDGE KARLIN: Okay.
9 -MS. CURRAN: Here, it's an entire field 10 that's been neglected, just not addressed at all. So 11 it's legitimate in our view to say this has been 12 completely omitted. And so someone -- the Applicant 13 needs to take the first step and look at these 14 alternatives.
15 JUDGE KARLIN: Okay.
16 JUDGE TRIKOUROS: Both the Applicant and 17 the Staff indicate that it's -- the burden is on 18 the -- on you, the Petitioner. The Applicant's 19 answer, page 41, and the Staff's answer, page 48. And 20 there's a certain logic here that I may be missing.
21 Let's assume that one could come up 22 with -- and I think it's absolutely true that one 23 could come up with one thousand terrorist scenarios 24 which would be in fact covered by the SAMAs that are 25 in that table that I referenced, one thousand of them, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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327 1 and I believe that's absolutely true.
2 It wouldn't cover the 999,000 perhaps.
3 But it would certainly cover one thousand, just as a 4 hypothetical. That is where it makes sense for the 5 burden to be on the Petitioner because the Applicant 6 could come up with all these scenarios. Then we would 7 just be incremented to where we are today with one 8 thousand under our belt and then looking for the 9- thousandth and one scenario. And I don't see where we 10 would be any different.
11 MS. CURRAN: Well, there could be a 12 thousand accident scenarios, too. There could be a 13 thousand of a lot of things. But the issue here is 14 that there isn't one that's analyzed -- we might -- if 15 we saw that PG&E had actually looked at this issue and 16 analyzed alternatives, we very well might say, Okay, 17 they did it. This is -- NEPA is action force and we 18 are trying to get PG&E and the NRC Staff to take NEPA 19 -- to fulfill their responsibility under NEPA to do 20 that job. If they did it, we might -- if we wanted to 21 come in and criticize a SAMA analysis that had been 22 done, we might say, Here's a very credible scenario 23 that you overlooked. But there isn't any because it 24 just hasn't been done. It's been totally overlooked.
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328 1 to say, This is an area where you, the Applicant, need 2 to take the first step and to take it. Period. And 3 if later we don't think you've done a good enough job, 4 we will criticize it and we will give you the details 5 about what you left out. But nothing's been done.
6 JUDGE ABRAMSON: Ms. Curran, correct me if 7 I'm remembering this wrong because it's been a while 8 since I read it, but I thought that the Commission in 9 response to the Ninth Circuit's ruling said something 10 to the effect that, We rely on other Government 11 agencies to mitigate these events, the DoD and other 12 agencies charged with dealing with terrorists.
13 And that that was an accepted approach in 14 the Ninth Circuit. Am I incorrect in recollecting 15 that?
16 MS. CURRAN: I honestly do not remember 17 that.
18 JUDGE ABRAMSON: Well, I'll ask the 19 question of Applicant's counsel. I think that was the 20 answer.
21 JUDGE KARLIN: I think if I remember, the 22 Commission says that's an argument that was made in 23 the Third Circuit, in the Second Circuit, and perhaps 24 even in this circuit. It sounds like it was not 25 accepted in the Ninth Circuit.
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329 1 JUDGE ABRAMSON: I think it was accepted 2 in the Ninth Circuit.
3 JUDGE KARLIN: But it was -- well, the 4 Ninth -- but it was -- it was accepted in the Third 5 and Second. But we'll find out. I mean, that's a 6 question for law.
7 Any other questions of Ms. Curran at this 8 point?
9 JUDGE TRIKOUROS: Just one clarification.
10 JUDGE KARLIN: Yes.
11 JUDGE TRIKOUROS: We don't know what the 12 Applicant was thinking in the creation of that table 13 necessarily. They may have documented -- documented 14 it in some detail. I can -- it just isn't clear to me 15 that one has -- that one when doing SAMAs has to be 16 mechanistic; in other words, one could say, you know, 17 this is happening for some reason. How would I deal 18 with that? Here's how I would deal with that. Which 19 then would encompass some number of terrorist attacks 20 and also certain design basis or beyond design basis 21 considerations.
22 So you're saying no one's thought of that 23 or no one's -- it isn't entirely clear to me that 24 there hasn't been that type of thinking. The design 25 basis events are constrained by single failure NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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330 1 requirements, that sort of thing. That does not get 2 you to core melts. One has to postulate a series of 3 failures in order to get to the core melt. Those 4 failures could occur in any number of ways. Certainly 5 terrorist attack is one way, a terrorist scenario.
6 But -- so when you said it hasn't been 7 thought about, it's not clear to me that it hasn't.
8 I don't know.
9 MS. CURRAN: Well, let's just put -- it's 10 not stated that it's been thought about and, two, 11 members of the public who are concerned about the 12 environmental risks of the plant, there's very few 13 neighbors of a nuclear plant who are capable of 14 second-guessing whether PG&E thought about attacks 15 when they were listing SAMAs. It seems to me that 16 it's very important for PG&E to say to the public, We 17 took this into account and our list of SAMAs includes 18 that consideration, and that -- you know, that is part 19 of the assurance that NEPA has been complied with, the 20 issue has been covered, and that, you know, to a 21 certain extent one has to be able to rely on the 22 Applicant and the Agency to do the necessary analyses.
23 And it's -- it goes a long way towards satisfying the 24 law if they can say, We did it.
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331 1 of reason applied?
2 MS. CURRAN: Yeah, and the rule of reason 3 in NEPA very much includes being very clear with the 4 public about what was done and not asking the public 5 to second-guess whether an important issue was 6 covered.
7 JUDGE ABRAMSON: I think that's precisely 8 what was before the Ninth Circuit and I want to get on 9 and hear what the Applicant's counsel has to say about 10 that.
11 JUDGE KARLIN: All right. Thank.you, Ms.
12 Curran.
13 JUDGE TRIKOUROS: Thank you.
14 JUDGE KARLIN: PG&E, please. Mr. Repka.
15 MR. REPKA: I'm back.
16 JUDGE KARLIN: You're back. Is that a 17 line from Arnold Schwarzenegger?
18 MR. REPKA: The Governor.
19 JUDGE ABRAMSON: He's not -- it's not that 20 he'll be back. He's back.
21 JUDGE KARLIN: I'll be back.
22 MR. REPKA: Right.
23 JUDGE KARLIN: I did the "no problemo" 24 one.
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332 1 help me to refresh my memory about what went on in the 2 Ninth Circuit between the Commission and the -- and 3 the NRC?
4 MR. REPKA: A number of different things, 5 and so let me try to sort those out because I think --
6 the one I believe you're thinking of is the Public 7 Citizen v. NRC case.
8 JUDGE ABRAMSON: That's New Jersey.
9 MR. REPKA: No. It was in the Ninth 10 Circuit.
11 JUDGE KARLIN:. No, no.
12 MR. REPKA: It was a challenge to the 13 NRC's design basis threat rulemaking. And that design 14 basis threat rulemaking specifically excluded the 15 issue of aircraft attacks as well as other kinds of --
16 other kinds of issues. And the issue you're thinking 17 of in that case I believe is -- was the 18 Commission's -- part of the logic for that decision 19 was that there are those things that would prevent the 20 occurrence, prevent the terrorist attack, that could 21 conceivably be done but those were in the domain of 22 the Federal Government and would involve things like 23 active weaponry and other kinds of things, 24 interdiction of terrorists, intelligence, and many 25 other things that are in fact done as a matter of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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333 1 fact.
2 One of the arguments in that case, in 3 which the Ninth Circuit did uphold the NRC's 4 rulemaking, was that somehow the rulemaking ran afoul 5 of the Mothers for Peace Ninth Circuit case and the 6 Ninth Circuit in Public Citizen rejected that argument 7 in that context.
8 So I believe that's the decision you're 9 thinking of when you're talking about those actions 10 that are external to the company.
11 JUDGE KARLIN: And may I ask -- that's in 12 the design basis threat safety side of the NRC 13 responsibilities?
14 MR. REPKA: Indeed it was. It was a 15 challenge to the safety --
16 JUDGE KARLIN: Okay.
17 MR. REPKA: -- requirement but did include 18 a challenge that the rule was -- contravened NEPA as 19 well under the Ninth Circuit decision.
20 And I think that, Judge Trikouros, to your 21 point about specific SAMAs that are in the SAMA 22 evaluation, you know, obviously we don't consider 23 those things that we can't do for terrorism and the 24 kinds of things that may be -- would have been 25 addressed by the Public Citizen case, I'm not an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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334 1 expert in this but I look at the F-6 table I believe 2 it was in the SAMA evaluation table, F.6-1, and I do 3 agree that many of the specific SAMAs that were 4 considered are independent of the initiator. If you 5 add a redundant actuation system to some piece of 6 equipment, you add an extra valve or indicator or a 7 diverse component to do this, that could help in many 8 scenarios. I can't -- I haven't made a correlation to 9 terrorist scenarios, but certainly if there's 10 additional equipment that will survive or could be 11 used to mitigate, that would apply.
12 And I think that that -- that goes to --
13 really the fundamental point here, though, is that the 14 contention is a SAMA contention. We know now from the 15 reply brief especially that it's all about SAMAs.
16 This issue of terrorist attacks in the context of 17 license renewal has been addressed in the '96 GEIS.
18 It's been addressed in the draft revision as well 19 which basically reaffirms the conclusion of the '96 20 GEIS.
21 But in the Oyster Creek license renewal 22 case, the Commission specifically addressed the issue 23 of terrorism again in the license renewal context.
24 And the contention was a SAMA contention. And 25 essentially -- and I'm looking at COI 07-08, which was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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335 1 a Commission decision, obviously, in February of 2007, 2 but it was -- contention was, as characterized by the 3 Commission, "Under NEPA, in New Jersey's view, the NRC 4 Staff's environmental analysis ought to have included 5 a more elaborate examination of severe accident 6 mitigation alternatives at Oyster Creek." And the 7 Commission went on to reject that contention on the 8 basis that the 1996 GEIS on sabotage events was 9 sufficient to satisfy NEPA for the -- in the license 10 renewal context.
11 Which takes me back to the Ninth Circuit 12 and the Mothers for Peace Ninth Circuit case on NEPA 13 and terrorism, and I think in general the Mothers for 14 Peace tend to overstate the significance of that case.
15 I mean, it certainly said that the NRC as a matter of 16 law cannot categorically exclude the terrorism issue.
17 That's a decision the Commission continues to disagree 18 with quite clearly. And the Third Circuit itself 19 disagreed with the Ninth Circuit on that decision.
20 But it did not say anything about anything 21 other than ISFSIs. It didn't say anything about 22 license renewal. It didn't say anything about SAMA 23 evaluations or mitigation alternatives. It didn't say 2.4 anything about how the NRC should address NEPA in the 25 context of -- should address terrorism in the context NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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336 1 of NEPA, and it also didn't even say that the NRC 2 needed to consider consequences of terrorist attacks.
3 It said that the NRC just needed to look at it and 4 determine whether or not those events were remote and 5 speculative. And, in fact, if you look at the 1996 6 GEIS, part of the NRC's analysis there is that these 7 events are remote and speculative, they can't be 8 quantified, and went on to characterize the 9 consequences as well.
10 The NRC took a similar approach in its 11 environmental assessment supplement for the ISFSI and 12 said that these are low likelihood events and decided 13 that the consequences were, in any event, consistent 14 with reactor accidents and they quantified the 15 consequences in ways I can't remember. But I think 16 the other thing that's important to remember in that 17 case is that the Mothers for Peace today are talking 18 about scenarios and addressing multiple scenarios.
19 After the remand from the Ninth Circuit, there were a 20 number of contentions proposed for hearing, some of 21 which were specific scenarios. And the Commission in 22 ruling -- and this was a Commission decision -- in 23 ruling on the admissibility of contentions, one of the 24 things that I think they made very clear was they had 25 no interest in engaging in site-specific hearings on NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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337 1 terrorist scenarios to meet NEPA or otherwise and 2 rejected those contentions.
3 So the context is slightly different from 4 where we are right now, but I think that argument that 5 somehow the SAMA analysis needs to address those 6 scenarios specifically would inexorably lead to site-7 specific litigation of scenarios which is precisely 8 what the Commission said in the ISFSI context that 9 they don't waft to do.
10 JUDGE KARLIN: Well, let me ask this: If Ii the Commission decided -- if this Board decided and 12 the Commission affirmed that it would be appropriate 13 to look at some SAMA analysis with regard to terrorist 14 attacks, do you think the Ninth Circuit would reverse 15 us, or would they defer to the expert agency as well?
16 I mean, what I'm suggesting is a wide 17 range of reasonableness that this Commission and this 18 Board may have and that the Ninth Circuit is only 19 going to reverse us if we go outside of those ranges.
20 We may be at one end of the range with regard to one 21 Commission and we may be at another end of the range 22 with regard to another Commission.
23 MR. REPKA: I've been around long enough 24 not to speculate as to what the Ninth Circuit will 25 decide on anything, but --
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338 1 JUDGE KARLIN: Or the Commission.
2 MR. REPKA: Right. But --
3 JUDGE ABRAMSON: Mr. Repka, --
4 MR. REPKA: -- as far as the Commission, 5 I know how they would rule on this because they did --
6 they addressed the SAMA issue in Oyster Creek.
7 JUDGE KARLIN: But they also addressed it 8 in the San Luis Obispo case, as you just cited, and 9 Jaczko dissented from both of them.
10 MR. REPKA: And Commissioner Jaczko's 11 dissent was focused as much on the process issue and 12 the access to documents, which actually leads me to 13 another point I'd like to make about that.
14 JUDGE KARLIN: And the land contamination 15 issue.
16 MR. REPKA: More the process and the 17 documents that were released to allow further 18 litigation of the land contamination issue.
19 JUDGE KARLIN: Yes.
20 MR. REPKA: But I think on the document 21 point, the Ninth Circuit Mothers for Peace decision 22 talked specifically about access to documents and they 23 cited the Weinberger case, Hawaii v. Weinberger 24 Supreme Court decision, and it was very clear in that 25 decision that under a NEPA analysis, the Government is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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339 1 under no obligation to release any information related 2 to security information.
3 So I think that that's -- that was very 4 much in the mind of the Ninth Circuit when they issued 5 that decision.
6 JUDGE KARLIN: Well, the Ninth Circuit did 7 also say when they issued their decision in the San 8 Luis Obispo Mothers for Peace was 'that the Agency is 9 free to fashion various ways to deal with security 10 issues and that -- but they can't simply dismiss the 11 entire NEPA process and say, Because it's so 12 sensitive, we just won't do it.
13 MR. REPKA: Correct. And looking at the 14 Weinberger case itself, what the court decided there 15 was that the -- I believe it was a naval base issue 16 and that the Navy could do the analysis and never make 17 the results public and that would satisfy NEPA.
18 JUDGE KARLIN: Well, the part of -- if I 19 remember that case, the Weinberger case was whether or 20 -- the issue was -- wasn't that the one where the 21 issue was whether or not the Navy was indeed storing 22 nuclear weapons at a particular facility --
23 MR. REPKA: It was storage of nuclear 24 weapons.
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340 1 they're going to do a NEPA analysis of the storage of 2 nuclear weapons, the cat would be out of the bag and 3 they would reveal that they indeed were storing it 4 there. So there was a fundamental problem.
5 MR. REPKA: Right. Security information.
6 JUDGE KARLIN: Whereas, here, there's no 7 such question. There is spent nuclear fuel in those 8 pools. There is a reactor over there. And no one's 9 hiding that fact.
10 MR. REPKA: Well, certainly the analysis 11 could lead you to a -- to deal with safeguards 12 information and the level of protection and the 13 consequences, and I think those are all equally of 14 concern to the Commission --
15 JUDGE KARLIN: Yes.
16 MR. REPKA: -- and they've made that very 17 clear.
18 JUDGE TRIKOUROS: Now, with respect to 19 SAMA, there's a frequency aspect to it that with 20 respect to terrorism, I'm having trouble understanding 21 how one might implement that even in a simplistic way.
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341 1 been analyzed, likely not different, but the 2 probability or -- I guess in this particular case it 3 would be probability of a terrorist attack would have 4 to be factored in in order to determine if one could 5 cost-beneficially make the modification.
6 Do you have any comment on that? I was 7 going to ask the Petitioner to address that later, 8 too, perhaps.
9 MR. REPKA: Yes. I think that's the 10 fundamental problem that the Commission has always 11 been concerned about, argued to the Ninth Circuit and 12 to the Third Circuit, as to why a NEPA analysis from 13 a risk perspective or otherwise of the terrorist issue 14 makes no sense, because you have no ability to 15 quantify the probability aspect of the -- of the risk 16 assessment. And I think that that argument applies 17 even more to a SAMA evaluation as it's performed 18 typically. It's a very quantitative analysis and, in 19 order to make the cost benefit of -- the 20 implementation cost versus the averted risk benefit, 21 if you can't quantify the probability, you can't do 22 that in a quantitative way other than assuming the 23 probability of the terrorist attack, one, and then 24 looking at the consequences. But that obviously is 25 distorting the risk argument, the risk analysis.
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342 1 JUDGE ABRAMSON: Mr. Repka, did I 2 understand you correctly that it really became clear 3 to you as counsel for the Applicant only after seeing 4 the reply that this was really a contention asserting 5 that SAMA analysis needed to' be performed in 6 connection with terrorist attacks?
7 MR. REPKA: Oh, I think -- I can't 8 remember right now what the words of the original 9 contention were, but certainly the reply reinforced 10 that this is really a SAMA issue; it wasn't looking at 11 anything more in terms of the terrorist analysis than 12 the SAMAs, but --
13 JUDGE ABRAMSON: Was that -- was the issue 14 -- was the law regarding the cases we've talked about, 15 the law regarding performing SAMA analysis for 16 terrorist attacks, addressed thoroughly in your 17 answer?
18 MR. REPKA: I believe it was.
19 JUDGE ABRAMSON: Okay.
20 MR. REPKA: I believe we speak to the 21 Oyster Creek case and -- you know, the one thing I 22 would add to that, if we didn't cite it, would be the 23 Commission's decision in Oyster Creek because it does 24 specifically relate to a SAMA contention.
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343 1 design basis threat cases also on -- I don't recall.
2 MR. REPKA: I don't believe we did address 3 that. I raised that in answer to your questions.
4 JUDGE ABRAMSON: Yeah.
5 JUDGE KARLIN: Okay. Any more questions 6 of Mr. Repka? Thank you, Mr. Repka.
7 Staff. Is it --
8 MS. KANATAS: Good afternoon, Your Honors.
9 JUDGE KARLIN: Is it Ms. Kanos?
10 MS. KANATAS: It's Ms. Kanatas.
11 JUDGE KARLIN: Kanatas. Okay.
12 MS. KANATAS: Yes, sir.
13 JUDGE KARLIN: Ms. Kanatas. All right.
14 Boy, you get the last of the day, huh?
15 MS. KANATAS: I do.
16 JUDGE KARLIN: Good. Contention EC-4.
17 I'm not sure how many questions we have. Let me just 18 look at my notes for a moment. I do have one 19 question. I think -- they talk about the waiver. I 20 believe -- was it your brief or the Applicant's that 21 teed this issue -- they didn't ask for a waiver here.
22 MS. KANATAS: Correct.
23 JUDGE KARLIN: And their answer was, Well, 24 because it was a SAMA. Do you think a waiver is 25 needed or not, or do you accept her explanation?
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344 1 MS. KANATAS: The Staff does not join 2 PG&E's argument that a waiver is needed for this 3 because the GEIS concluded that terrorist attacks are 4 bounded by severe accidents which are a Category 2 5 issue that need to be addressed on a site-specific 6 basis. In the environmental report as well as in the 7 supplemental environmental impact statement, as Turkey 8 Point points out, typically Category 2 issues are 9 within scope of license renewal.
10 JUDGE KARLIN: Right.
11 MS. KANATAS:. And so for that reason, we 12 did not join --
13 JUDGE KARLIN: Okay. You did not argue 14 that they did need it.
15 MS. KANATAS: We did not argue that a 16 waiver was needed.
17 JUDGE KARLIN: Whereas the Applicant did.
18 MS. KANATAS: Correct.
19 JUDGE KARLIN: Yeah. Okay. Any 20 questions?
21 JUDGE ABRAMSON: So is it the Staff's 22 position or view then that no specific terrorist act 23 initiators need to be considered in a SAMA analysis 24 because the results -- because they would be -- they 25 would be incorporated or they would be -- their NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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345 1 effects would be incorporated in the existing SAMA 2 analysis?
3 MS. KANATAS: Correct. We believe that 4 the Oyster Creek Commission decision indicated that 5 the SAMA analysis in the Applicant's environmental 6 report, which did address severe accident mitigation 7 alternatives, as well as the Staff's supplement, that 8 that was a sufficient environmental review of NEPA 9 terrorism issue.
10 JUDGE ABRAMSON: And was it in Oyster 11 Creek addressed by reference to the GEIS also?
12 MS. KANATAS: Yes, it was. Both the GEIS 13 generically and the SEIS specifically analyzed the 14 severe accident mitigation alternatives which were 15 found to bound the terrorist attacks. And the same is 16 true in this case. PG&E submitted an environmental 17 report which provided a SAMA analysis for severe 18 accidents. The Staff plans to publish their draft 19 supplement in October, which will be publicly 20 available so that the Mothers for Peace and other 21 interested members of the public can comment and 22 participate in that process which does fulfill the 23 twin aims of NEPA of the Agency and the Staff 24 reviewing and analyzing the significant environmental 25 impacts and then allowing the public to be involved NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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346 1 and provide input.
2 JUDGE KARLIN: And if the Mothers for 3 Peace believe that the draft SEIS is inadequate, they 4 can file new contentions at that time.
5 MS. KANATAS: You're correct. Under 6 2309(f) (2) is the regulation that you are referencing, 7 and absolutely if there is --
8 JUDGE KARLIN: Right.
9 MS. KANATAS: -- new 6r different 10 information or analysis -- I'm paraphrasing -- but at 11 that time, yes.
12 JUDGE KARLIN: Now, in -- oh, go ahead.
13 JUDGE ABRAMSON: But the Staff's view at 14 this point of the ER is that there need be no specific 15 additional consideration of terrorist act initiated 16 accidents because the reference to the GEIS is 17 sufficient when taken in combination with the 18 Commission's view that the consequences are bounded by 19 -- or are -- I really don't think "bounded" is the 20 right word -- encompassed by the existing severe 21 accident SAMA analysis?
22 MS. KANATAS: Correct. Because the GEIS 23 addressed the issue of the terrorism analysis and, as 24 PG&E has submitted environmental report with an 25 analysis of SAMA for severe accidents, and then the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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347 1 NRC Staff will be able to provide their own evaluation 2 to determine if that analysis is adequate, yes, the 3 Staff does not believe that a terrorist-specific SAMA 4 analysis was -- is required under the precedent of 5 Oyster Creek.
6 JUDGE ABRAMSON: So the ER satisfies the 7 regulatory requirement in your mind that the -- that 8 the Applicant provide an ER that is sufficient to aid 9 the Staff in preparation -of its in this case 10 supplemental EIS? Which is the only regulatory 11 requirement on the Applicant for an ER.
12 MS. KANATAS: Correct. We do believe 13 that's the case.
14 JUDGE ABRAMSON: Okay.
15 JUDGE KARLIN: Now, let me ask: Isn't 16 that the merits?
17 JUDGE ABRAMSON: Mo.
18 MS. KANATAS: That -- well, the --
19 JUDGE KARLIN: We're dealing with just the 20 admissibility.
21 MS. KANATAS: Right. Well, the Oyster 22 Creek decision, the actual holding, said that the 23 contention, which did go to whether or not -- as Mr.
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348 1 inquiry into consequences of potential aircraft attack 2 on the reactor, and the Commission rejected this 3 argument based on the GEIS and SEIS analysis of the 4 terrorism analysis and then went on to say that there 5 was no adequate basis for that contention. So that 6 feeds into the 2309 7 JUDGE KARLIN: So isn't the adequacy of a 8 basis more contention-specific in one -- the identical 9 contention in one case may have -- the Petitioner may 10, provide an adequate basis and in another contention --
11 proceeding they may not provide an adequate basis. So 12 the identical contention might be admissible in one 13 case and not admissible in the other if in one case an 14 adequate basis was provided and in another case it was 15 not.
16 MS. KANATAS: I believe that is true. But 17 as has been pointed out, Mothers -- Mothers for Peace 18 have not met the 2309 requirements as their claim that 19 the SAMAs in the environmental report are inadequate.
20 It rests on speculation and assertion with no factual 21 or expert opinion as to how or why terrorist attacks 22 would be different from severe accidents.
23 JUDGE KARLIN: Okay.
24 MS. KANATAS: No ballpark relative costs 25 and benefit.
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349 1 JUDGE KARLIN: Well, let me ask on that.
2 MS. KANATAS: Yes.
3 JUDGE KARLIN: Much has been made of this 4 McGuire decision. It's 56 NRC 1, the Duke Energy 5 decision. And it's called the McGuire Nuclear Station 6 and Catawba. And on page 12, they talk about, "Any 7 number of possible SAMAs may be theoretically 8 conceivable" and that the Petitioners need to have 9 som& ballpark figure or some sort of indication of --
10 for the cost benefit of the SAMA.
11 MS. KANATAS: Uh-huh. I don't have the 12 case in front of me, but I -- yes, I --
13 JUDGE KARLIN: Okay. And I see the 14 Applicant arguing that and I think the Staff argued 15 that. Now, why didn't you argue that with regard to 16 Environmental Contention Number 1? Environmental 17 Contention Number 1 was, you know, a SAMA contention, 18 if I got it right, about the -- they didn't deal with 19 the Shoreline Fault. And I don't know whether anybody 20 argued or you argued, Well, you didn't give some 21 plausible cost estimates of why this would make a 22 difference.
23 Is there a discrepancy between -- did you 24 argue cost -- that the McGuire case in in the context 25 of Contention Number EC-l? And, if not, why are you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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350 1 arguing it here?
2 MS. KANATAS: I need a minute to consult 3 as I did not --
4 JUDGE KARLIN: Sure.
5 MS. KANATAS: -- work on EC-l. Thank you.
6 (Pause.)
7 MS. KANATAS: Thank you. Thank you for 8 the indulgence for more time.
9 JUDGE KARLIN: Okay.
10 MS. KANATAS: It was not argued -- it was 11 not avoided in the argument because of some 12 distinguishing characteristic. It was, rather, that 13 EC-l focused on alternate grounds for why the 14 contention was inadmissible. And here, just in a SAMA 15 context here, we looked to Indian Point and McGuire to 16 just say that all that there was in EC-4 was the mere 17 assertion that specific terrorist attacks needed to be 18 done and that was all that was said.
19 So--
20 JUDGE KARLIN: As I understand, Ms. Curran 21 was saying, Well, a whole category of severe 22 accidents, you know, have not been considered; i.e.,
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351 1 included.
2 MS. KANATAS: The way I understand Ms.
3 Curran's argument, and certainly she can correct me, 4 is that she felt the SAMA analysis was inadequate 5 because while severe accidents were looked at, it 6 didn't look at specific terrorist SAMA analysis.
7 JUDGE KARLIN: Right. A category of --
8 MS. KANATAS: Right, within severe 9 accidents.
10 JUDGE KARLIN: Okay. Well, I don't think 11 I need to pursue that point. Anything else? No. All 12 right. Thank you.
13 MS. KANATAS: Thank you.
14 JUDGE KARLIN: Ms. Curran -- okay. We 15 might have one or two more questions.
16 JUDGE TRIKOUROS: I signaled you that I 17 wanted to ask you that question. The value of a SAMA 18 is, in large part, associated with the quantification 19 of the event scenario. And the inability to quantify 20 a terrorist scenario would really make the SAMA that 21 you're -- the SAMA analysis that you're interested in 22 having done not practical in the sense that one 23 wouldn't know what to do with it. Because the SAMA 24 does require the quantification in order to determine 25 if a modification should or shouldn't be made.
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352 1 MS. CURRAN: Well, are not -- I guess what 2 I would just point out is that in the course of 3 deciding what security improvements to improve -- to 4 impose, to the extent -- to the extent that security 5 improvements go beyond adequate protection standards, 6 the NRC looks at cost and there -- I just think that 7 the NRC does look at cost and so there must be a way 8 to do it. And if there isn't, then say so. If there 9 isn't, say so.
10 If that's the reason, then -- if there's 11 no way to -- and here's an agency -- and I'm 12 representing a group of neighbors, right? This is 13 very -- NEPA is so common sensical and simple in a way 14 -- it's just the Government saying to the public, We 15 are taking your concerns about protection of the 16 environment into account. If the agency or if PG&E 17 can't figure out how to do this, then say so. Put it 18 out there. Let's talk about it. But don't tell us, 19 We can't do it. We've got to keep it secret. We're 20 not discussing it with you. You know, all the reasons 21 that -- the only people who don't get included on 22 these really important issues are the members of the 23 public who are affected by it. Part of the purpose of 24 NEPA is to get these issues out on the table so they 25 can be discussed.
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353 1 JUDGE ABRAMSON: Ms. Curran, let me speak 2 to this. This has been a topic I spent a fair amount
.3 of time thinking about. And as you know, when you do 4 SAMA analysis, you start with an initiator and you 5 calculate the -- you start with the probability of 6 that initiator and you then take, the initiator, you 7 figure out what the consequences are, and you work 8 your way through. until you get environmental 9 consequences. So .you take the initiator -- but to 10 start with, you have to have the probability.
11 . Now, if we - if we as a.-group in this 12 room think about how to calculate the probability of 13 a particular type of terrorist attack, what would you 14 do? If you're going to calculate the probability of 15 somebody being in a particular auto accident, you'd go 16 get the data; right? You'd figure out how many 17 accidents there were on that highway per year and 18 you'd work your way backward and calculate a 19 probability.
20 If we were to use that kind of objective 21 normal approach to calculating a terrorist attack, the 22 probability of any.particular terrorist attack would 23 come out so small because there are virtually none.
24 We'd have to speculate on how frequently it would 25 occur. And we had one terrorist attack on the Twin NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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354 1 Towers. We have I'm not sure if we have any 2 terrorist attacks on nuclear power plants in the U.S.
3 When we -- if we try to calculate the 4 probability of the event, the number would not be 5 calculable other than by speculation. There's no data 6 on which to base a number. So I think, if I recall 7 correctly, at one point when the NRC Staff was trying 8 to address this for the Ninth Circuit, they said 9 they're remote and speculative. You'll recall that's 10 a phrase from NEPA. If it's remote and speculative, 11 you don't have to deal with it.
12 I think if we were objectively to try to 13 figure out the probabilities of a terrorist attack at 14 all, or let alone the probability of specific types of 15 terrorist attacks *so that we could then calculate the 16 kind of release from a core, we'd be very hard-pressed 17 to come up with a number greater than some 18 infinitesimal number.
19 So this to me is the issue that underlies 20 these problems. And while I'm sympathetic to 21 everybody's concern about terrorist attacks -- and, 22 believe me, I live in New York City. I was in the 23 city the day that that attack happened. I had 24 acquaintances that died as a result of that. I'm 25 sympathetic, empathetic to the issue. But if I as a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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355 1 scientist try to calculate this, I think I can't do 2 anything other than come up with a number that's so 3 small that it has to be remote and speculative under 4 NEPA criteria. And that's why I think Judge Trikouros 5 is raising the question how would you do it., I think 6 it's not how would you do the calculation to figure 7 out thecost. It's how would you get the number to 8 begin with. of the probability of that event. That's 9 the one that gives me heartburn.
10 MS. CURRAN: Judge Abramson, I would just 11 refer you back to the Ninth Circuit decision in which 12 I think the court basically said to the NRC that -- it 13 looked at all the contexts in which the NRC publicly 14 represented that it was capable of doing just that.
15 IT was capable of making decisions about which types 16 of threats should be protected against and it -- you 17 know, it was reassuring the public, We can do this.
18 We're doing this all the time.
19 And yet in the context of NEPA, it was 20 saying, We can't do this. There was an internal 21 inconsistency. That I think was the bedrock of the 22 Ninth Circuit's decision.
23 JUDGE ABRAMSON: Yeah.
24 MS. CURRAN: And I'm not saying it's easy 25 to do. But I think what the Ninth Circuit was saying NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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356 1 is -- to the NRC is, If you're telling us that you 2 can!t come up with a way to analyze this because it's 3 impossible, we're telling you that's contradicted by 4 your own statements, your own actions, in many 5 contexts. And so we give it back to you to figure 6 out.
7 JUDGE ABRAMSON: And I read that into the 8 Ninth Circuit decision and, as you know, I'm an 9 adjudicator. I wasn't part of the team that wrote the 10 NRC's brief for that, but it seems to me as a 11 scientist that any number I would come up with for a 12 probability of one of those events would be ten to the 13 minus nine or ten to the minus ten. It would be 14 really infinitesimal because there's just simply no 15 events on which to base it. And you could look at 16 other kinds of attacks, domestic terrorist attacks in 17 the U.S. And if you picked a facility and tried to 18 calculate the probability of that event, you'd come up 19 based on the data with something tiny as compared with 20 if you tried to calculate aircraft crashes, and I was 21 involved with private fuel storage where we had a 22 mechanism for calculating the probability of an 23 aircraft crash into the site and, from there, we could 24 work forward to calculate consequences.
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357 1 calculating it would lead you to a number that's so 2 small you would have to. conclude it's remote and 3 speculative. Why the Staff didn't -- Staff and 4 counsel didn't argue that before the Ninth Circuit 5 effectively, I can't speak to.
6 JUDGE KARLIN: Let me jump in. I think 7 the Ninth Circuit decision, the Staff did argue 8 exactly those points; that is, that the -- we can't --
9 we don't have to do a NEPA analysis of the terrorist 10 attack here categorically because it's remote and 11 speculative and, oh, by the way, we can't quantify, 12 there's no way we could quantify anything. And the 13 Ninth Circuit flatly said, No, we don't accept that 14 it's remote and speculative because you've got all 15 these other safety programs that deal with terrorist 16 attacks. And, oh, by the way, just because it's not 17 quantifiable what the probability is doesn't mean you 18 don't have to cover it under NEPA qualitatively.
19 And I think that's if we all re-read 20 the Ninth Circuit's decision, I think it flat out 21 rejected the remote and speculative.
22 JUDGE ABRAMSON: No. You have to read the 23 briefs to get there, Judge Karlin, and I've read them.
24 JUDGE KARLIN: Well, the decision itself 25 says, We reject the argument that it's remote and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND. AVE., N.W.
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358 1 speculative. The decision itself rejects the idea 2 that just because you can't quantify what the 3 probability is, you don't have to deal with it under 4 NEPA.
5 JUDGE ABRAMSON: And that's right. And 6 you can quantify it.. You come up with an 7 infinitesimal number.
8 MS. CURRAN: If the analysis of 9 alternatives is indeed one of the most important steps 10 to be taken in an environmental impact statement, then 11 our view is that it's incumbent on the agency to find 12 a way to do that. And if they can't do it by 13 attaching a probability number to a risk, then perhaps 14 it's a different -- a qualitative analysis similar to, 15 say, the truck bomb rule which was one where -- this 16 was in 1994 -- where the NRC said, We can't quantify 17 this but we can look at some indicators that this is 18 something we've got to protect against, and they 19 promulgated a rule. That's the kind of analysis that 20 could be done.
21 JUDGE ABRAMSON: It may well be that the 22 Commission would entertain the possibility of trying 23 to develop a rule for how to deal with these things.
24 But what I'm saying is if I as a scientist try to 25 calculate the probability -- I can calculate the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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359 1 probability, Alex. I disagree with anybody who argued 2 to the Ninth Circuit that you can't calculate the 3 probability. I can calculate it. I take the hard 4 data and I calculate a number and the number I come up 5 with is ten to the minus ten, ten to the minus 12.
6 It's the frequency of occurrence of those events and 7 it's infinitesimal and, therefore, remote and 8 speculative.
9 And that wasn't adequately argued. But I 10 can calculate that number and, starting from that 11 number, I would get to the conclusion that it's remote 12 and speculative and, therefore, you don't have to deal 13 with it under NEPA. But that argument was not 14 adequately made before the Ninth Circuit.
15 JUDGE KARLIN: Well, it was made but it 16 may not be adequately because they lost.
17 JUDGE ABRAMSON: Not adequate. They just 18 asserted it. They never made it.
19 JUDGE TRIKOUROS: Let me point out to you 20 that if one were looking where to get bang for the 21 buck, so to speak, if I look at the number of severe 22 accidents that were -- that occurred in the world, I 23 would find that they occurred almost exclusively 24 because of operator error. So I have real severe 25 accidents that have occurred because of operator NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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360 1 error, not sabotage, simply mistakes.
2 And if -- and that's real data. These are 3 actual severe accidents. So where would one put their 4 money, you would argue, in the human performance area.
5 Much more so probabilistically than in a terrorist 6 attack. So, I mean, just as another way to look at 7 this.
8 JUDGE KARLIN: Thank you. Do we have any 9 more questions for Ms. Curran?
10 MS. CURRAN: If we take until ten o'clock, 11 we might be able to solve this.
12 JUDGE KARLIN: I think we'll go on 13 discussing this later, but thank you, Ms. Curran. I 14 think that's all that we have on this.
15 So I think we've reached the point where 16 we will then entertain the closing arguments. Five 17 minutes. It's been a long day and, Ms. Curran, you're 18 back up in the hot box. Five minutes. Ms. Bu will 19 try to keep time, a one-minute warning.
20 CLOSING STATEMENT ON BEHALF OF THE PETITIONERS 21 MS. CURRAN: Well, I would only like to 22 stress that this is a very important juncture for the 23 Diablo Canyon Nuclear Plant. It is the first time 24 since the plant received an operating license that 25 environmental issues are to be looked at NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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361 1 comprehensively. There's been, as I was saying in my 2 opening statement, a number of very important 3 developments in- the world, the terrorist attacks of 4 September llth, with respect to the Commission's 5 understanding of the behavior of spent fuel pools, 6 owner accident conditions, with respect to what's been 7 learned about the earthquake risks and what is still 8 being learned about the earthquake risks in this area.
9 And, once again, I would put before this 10 Board the cautionary tale of the BP oil spill in which 11 the regulators cooperated with BP in basically a rush 12 to judgment to issue permits where the technology for 13 mining the oil was way ahead of the technology for 14 dealing with the effects of a serious accident, where 15 it wasn't taken seriously. It wasn't taken seriously 16 the potential for something very, very serious to 17 occur.
18 But you have the opportunity to do that.
19 And the Mothers for Peace are relying on you to take 20 into very serious considerations the issues that we 21 have raised and we believe that NEPA requires the 22 ventilation of these issues that we have raised today.
23' And I thank you very much for your 24 consideration of our views. Thank you.
25 JUDGE KARLIN: Thank you, Ms. Curran.
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362 I PG&E. Mr. Repka.
2 CLOSING STATEMENT ON BEHALF OF THE APPLICANT 3 MR. REPKA: Thank you. It's late and I'll 4 be brief. I just want to touch on three points. Much 5 has been made today about three issues -- terrorist 6 attacks, spent fuel pool risks, and seismic risks.
7 With respect to terrorist attacks, the issue has been 8 addressed in the GEIS on a generic basis and there's 9 been absolutely nothing presented in any contention 10 that would provide a basis to say that there's 11 anything unique or different about Diablo Canyon with 12 respect to terrorist attacks, nothing that would make 13 the site particularly risky or different from any 14 other site in the United States.
15 Second, with respect to the issue of spent 16 fuel pool risks, there's been some discussion of the 17 draft revision to the GEIS, and I just want to refer 18 to one page of the draft revision of the GEIS that 19 perhaps has been missed in the discussions earlier 20 today and that's page 3-50. In the draft, the NRC 21 writes that, "Nuclear power plants are constructed 22 according to seismic specifications in 10 CFR Part 50, 23 Appendix S. Their spent fuel pools are designed with 24 reinforced concrete, allowing them to remain operable 25 through the largest earthquake that has occurred or is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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363 1 expected to occur in the area." It goes on to say, 2 "Two California plants, Diablo Canyon and San Onofre, 3 are in locations with peak acceleration of 25 to 30 4 percent of gravity, which they're saying is larger 5 than other locations. But then-goes on to say, "These 6 plants have been designed to safely withstand the 7 seismic effects associated with earthquakes with 8 epicenters at various locations and at various depths, 9 magnitudes, and ground accelerations."
10 The point here is --
11 JUDGE KARLIN:. May I ask: *What document 12 was that?
13 MR. REPKA: This is draft revision 1 to 14 NUREG 1437.
15 JUDGE KARLIN: Okay.
16 MR. REPKA: Page 3-50.
17 JUDGE KARLIN: So that's the 2009 draft 18 GEIS?
19 MR. REPKA: Correct.
20 JUDGE KARLIN: Page?
21 MR. REPKA: 3-50.
22 JUDGE KARLIN: Thank you. Just for the 23 record.
24 MR. REPKA: The point is that with respect 25 to the spent fuel pool or any other structure system NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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364 1 or component at the plant, the seismic hazard at 2 Diablo Canyon may be greater than other locations in 3 the United States, but the plant is designed precisely 4 for that. So, therefore, the seismic risk is not 5 greater than at other plants in the United States.
6 And then the final point I would like to 7 make is with respect to the seismic issue and the 8 issue of the Shoreline Fault. Obviously, PG&E is 9 continuing its evaluations of that. There has been 10 substantial data presented by the company to the NRC 11 that has been characterized as preliminary, but I can 12 represent for the experts in PG&E that all 13 expectations by the end of the year, when the final 14 report on this first -- this current analysis is 15 completed, that in fact it will show that the -- that 16 the assessments of the Shoreline Fault today are 17 actually conservative.
18 And with respect to the -- because 19 uncertainties will have been eliminated and 20 conservatisms removed and, therefore, show that in 21 fact the Shoreline Fault is well-bounded by the 22 existing design basis. In fact, the only item offered 23 for any contention on seismic or otherwise related to 24 the Shoreline Fault is this research information 25 letter 09-001 which is actually an independent NRC NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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365 i Staff assessment of the current state of the inquiry 2 into the Shoreline Fault. And the conclusion of that 3 very document that's being relied upon is that, "The 4 results of the preliminary assessment indicate that 5 the best estimate of 84th percentile deterministic 6 seismic loading levels predicted for a maximum 7 magnitude earthquake on the Shoreline Fault are below 8 those for which the plant was previously analyzed in 9 the Diablo Canyon Long-Term Seismic Program for all-10 frequencies of interest."
11 . So that's the conclusion and that's what's 12 being relied upon and I think that that provides no 13 basis for concerns with respect to the current state 14 of the seismic design of the plant.
15 Thank you.
16 JUDGE KARLIN: Thank you, Mr. Repka. NRC 17 Staff, Mr. Smith.
18 CLOSING STATEMENT ON BEHALF OF THE NRC STAFF 19 MR. M. SMITH: Thank you, Judge Karlin.
20 Just a few thoughts to close with. With regard to 21 Technical Contention 1, Staff has taken the position 22 that the focus of license renewal is on the 23 application. But managing effects of aging does not 24 end with the submittal of the aging management program 25 and the license renewal review. Rather, the terms of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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366 1 the AMP are incorporated into the current licensing 2 basis and subject to the NRC's oversight during the 3 period of extended operation.
4 And, finally, I'd like to clear up a 5 couple points on Environmental Contention 1 on our 6 position on that. The Pilgrim decision states that 7 probabilistic risk assessment is one way to adequately 8 manage -- to adequately perform a SAMA analysis but 9 not the only way. In fact, most licensees add to 10 their PRA to account for weaknesses in the analysis, 11 particularly to account for missing info regarding 12 seismic or fire issues, the benefit multiplier. All 13 we're asking for in this case is the Applicant do a 14 similar analysis by showing the benefit multiplier in 15 this case is adequate to address the Shoreline Fault 16 or take the three steps identified in our pleadings to 17 also account for the Shoreline Fault.
18 Thank you.
19 JUDGE KARLIN: Thank you. Thank you, Mr.
20 Smith.
21 MS. CURRAN: May I have one moment?
22 JUDGE KARLIN: No. No. I don't think so.
23 We're completed at this point and I think everyone'.s 24 had their shot and it's been a long day.
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367 1 the revised EIS that --
2 JUDGE KARLIN: You --
3 MS. CURRAN: -- was not discussed at all 4 and I would just -- it will take me two -- a minute to 5 address. It seems very unfair to me.
6 JUDGE KARLIN: Go ahead, Ms. Curran.
7 Please go to the podium. Nothing you've said thus far 8 has been recorded. We'll give you two minutes. Go 9 ahead, Ms. Curran.
10 MS. CURRAN: I just wanted to address the 11 part of the draft revised EIS that Mr. Repka referred 12 to at page 3-50. That was not discussed in any of the 13 arguments --
14 JUDGE ABRAMSON: Go ahead. Tell us what 15 you want to say about it.
16 MS. CURRAN: -- earlier.
17 JUDGE ABRAMSON: Please.
18 MS. CURRAN: The first sentence from the 19 paragraph that he cites says, "Nuclear power plants 20 are constructed according to seismic specifications in 21 10 CFR Part 50, Appendix S." He's talking about 22 design basis accidents. This is -- what we are 23 talking about in our contentions is severe accidents, 24 so I just want to make that distinction.
25 Thank you.
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368 1 JUDGE KARLIN: All right. Thank you.
2 Thank you. All right. We've had a long day.
3 Everyone has been very patient in responding to our 4 questions, sometimes clear, sometimes unclear. We've 5 tried to ask them -- I think we've gotten some answers 6 that helped me think through these contentions.
7 Where do we go from here? This Board will 8 adjourn the meeting here today and then we will 9 convene internally and discuss our assessment, hash it 10 out, go through each contention, and reach our best 11 decision as we can as to whether the contentions are 12 admissible, whether they're within the scope and all 13 the other issues that have been raised here today.
14 And then, having reached that decision internally in 15 terms of what we think the answers are, we will write 16 a decision which will be made available to the public 17 trying to go through with care, reasonable care, each 18 of the points being made and what our thoughts are and 19 what our ultimate decision is.
20 So that's going to take us a little while.
21 It will probably be early July or July sometime I 22 think when we issue this ruling. And the ruling will, 23 as I said at the beginning of the day, be focused on 24 whether the contentions are admissible and whether the 25 waivers -- they have made a prima facie case on the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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369 1 waivers. And if we think that the intervenor Mothers 2 for Peace have filed an admissible contention or a 3 waiver, then we will so rule and we will then grant 4 the request for a hearing. And a hearing will be 5 conducted later, a trial, an actual evidentiary trial 6 where witnesses testify as to the facts, experts for 7 the most part.
8 If we deny the request for the hearing and 9 find that none of the contentions are admissible and 10 none of the waivers have made a prima facie case, we 11 will issue a ruling to that effect and that will be 12 the end of this proceeding unless somebody appeals it.
13 In either case, somebody can appeal our decision so --
14 and often they do. No hard feelings there. We're not 15 -- we don't always rule correctly but we're going to 16 do our best and we're going to issue our decisions in 17 -- as promptly as we can and we expect that to be in 18 July.
19 Again, appreciate all of the hard work 20 that the lawyers have put into this and the parties 21 have put into this. We appreciate that the public has 22 been here and has sat through a lot of this. It's 23 very hard to follow, I think, and we also I guess 24 finally would like to thank again the San Luis Obispo 25 County Board of Supervisors for making this facility NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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370 1 available. It's been I think quite useful for us and 2 I hope that if this happens again, we may be able to 3 use their facilities in the future.
4 With that, we stand adjourned.
5 (Whereupon, at 5:23 p.m., the proceedings 6 were adjourned.)
7 8
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CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission in the matter of: Diablo Canyon Nuclear Plant Name of Proceeding: Oral Arguments Docket Number: 50-275-LR and 50-323-LR ASLBP Number: 10-890-01-LR-BD01 Location: San Luis Obispo, California were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken by me and, thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript is a true and accurate record of the foregoing proceedings.
L Michael Williamson Neal R. Gross & Co., Inc.
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