ML12165A196
| ML12165A196 | |
| Person / Time | |
|---|---|
| Site: | Callaway  |
| Issue date: | 06/13/2012 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| RAS 22579, 50-483-LR, ASLBP 12-919-06-LR-BD01, NRC-1638 | |
| Download: ML12165A196 (172) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Union Electric Company Callaway Plant Unit 1 Oral Arguments Docket Number: 50-483-LR ASLBP Number: 12-919-06-LR-BD01 Location: Fulton, Missouri Date: Thursday, June 7, 2012 Work Order No.: NRC-1638 Pages 1-171 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433
1 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3 + + + + +
4 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 5 + + + + +
6 ORAL ARGUMENT 7 -------------------------------x 8 IN THE MATTER OF : Docket No. 50-483-LR 9 UNION ELECTRIC COMPANY : ASLBP No.
10 : 12-919-06-LR-BD01 11 (Callaway Plant Unit 1) :
12 -------------------------------x 13 Thursday, June 7, 2012 14 Fulton, Missouri 15 16 BEFORE:
17 G. PAUL BOLLWERK, III, Chairman 18 WILLIAM J. FROEHLICH, Administrative Judge 19 NICHOLAS G. TRIKOUROS, Administrative Judge 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2 1 APPEARANCES:
2 On Behalf of the Applicant:
3 DAVID R. LEWIS, ESQUIRE 4 Pillsbury, Winthrop, Shaw, Pittman 5 2300 North Street, NW 6 Washington, D.C. 20037-1122 7
8 WILLIAM B. BOBNAR, ESQUIRE 9 Managing Assistant General Counsel 10 Ameren Services Company 11 One Ameren Plaza 12 St. Louis, Missouri 63103 13 14 On Behalf of the Petitioner:
15 DIANE CURRAN, ESQUIRE 16 Harmon, Curran, Spielberg, Eisenberg LLP 17 1726 M Street NW, Suite 600 18 Washington, DC 20036 19 20 HENRY ROBERTSON, ESQUIRE 21 Great Rivers Environmental Law Center 22 705 Olive Street, Suite 614 23 St. Louis, Missouri 63101 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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3 1 On Behalf of the Petitioner:
2 Dr. Arjun Makhijani, PRESIDENT 3 Institute for Energy & Environmental 4 Research 5 6935 Laurel Avenue 6 Takoma Park, Maryland 20912 7
8 On Behalf of the U.S. Nuclear Regulatory Commission:
9 MARY SPENCER, ESQUIRE 10 BETH N. MIZUNO, ESQUIRE 11 ANITA GHOSH, ESQUIRE 12 CEM AKLEMAN, INTERN 13 ANDREW STUYVENBERG, ESQUIRE 14 CARMEN FELS, ESQUIRE 15 U.S. Nuclear Regulatory Commission 16 Office of the General Counsel 17 Mail Stop 15 D21 18 Washington, D.C. 20555 19 (301) 415-8445 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 (9:00 a.m.)
3 CHAIRMAN BOLLWERK: All right, could we go 4 on the record please. Good morning. Today we are 5 here to conduct a Prehearing Conference and Oral 6 Argument in a proceeding under Part 54 of Title 10 of 7 the Code of Federal Regulations, also referred to as 8 the CFR.
9 In accord with the Atomic Safety and 10 Licensing Board Order issued on May 11, 2012, this 11 Prehearing Conference has been convened in response to 12 an April 24, 2012 Hearing Request and Intervention 13 Petition submitted by the public interest group, 14 Missouri Coalition for the Environment. This 15 Petitioner seeks a hearing to raise certain issues 16 under the National Environmental Policy Act of 1969 or 17 NEPA, in particular, to challenge the adequacy of 18 certain aspects of the Environmental Report or ER 19 portion of the December 19, 2011 application of Union 20 Electric Company, doing business as Ameren Missouri, 21 in which Ameren requests the renewal of its 10 CFR 22 Part 50 operating license for the Callaway Plant, Unit 23 1, located in Callaway County, Missouri.
24 If granted, per Ameren's application the 25 requested extension would authorize Ameren to operate NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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5 1 Callaway Unit 1 for an additional twenty years beyond 2 the term of the facility's current license which 3 expires on October 18, 2024.
4 The Missouri Coalition's April 24th 5 Hearing Request was submitted in accord with the 6 Nuclear Regulatory Commission or NRC's February 16, 7 2012 Hearing Opportunity Notice, which was published 8 on February 24, 2012 in Volume 77 of the Federal 9 Register, at page 11,173.
10 On April 27, 2012 the Missouri Coalition's 11 Petition was referred by the NRC Office of the 12 Secretary to the Atomic Safety and Licensing Board 13 Panel's Chief Administrative Judge who on May 1st 14 appointed the three members of this Atomic Safety and 15 Licensing Board to rule on the Missouri Coalition's 16 Hearing Petition.
17 With respect to our conduct to the 18 adjudicatory process relating to the Missouri 19 Coalition's April 24th submission, we are three 20 independent Administrative Judges appointed by the 21 five member Commission as Licensing Board Panel 22 members, and designated to serve on this Licensing 23 Board to preside over any hearing required in 24 contested matters raised concerning the Callaway Unit 25 1 Operating License Renewal Application.
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6 1 The Panel's Administrative Judges do not 2 work for or with the NRC staff relative to the staff's 3 license application review. Rather, we are charged 4 with deciding whether the issues proffered by those 5 requesting a hearing, in this instance the Missouri 6 Coalition, are admissible, and for those issues we 7 find litigable, making a determination regarding their 8 substantive validity in terms of granting, 9 conditioning, -- in terms of the grant, conditioning 10 or denial of the requested license.
11 Our decisions on hearing matters generally are subject 12 to review. First by the Commission as the Agency 13 supreme tribunal, and then by the Federal Courts, 14 including in appropriate instances the United States 15 Supreme Court.
16 Relative to the specific matter before us 17 today in this Prehearing Conference based on the 18 showing made by the Missouri Coalition in its April 19 24th Hearing Petition neither Ameren or the NRC staff 20 has contested the standing to intervene or legal 21 interest of the Missouri Coalition to challenge the 22 Ameren License Renewal Application for Callaway Unit 23 1. Both Applicant Ameren and the staff however have 24 questioned the admissibility of all three of the 25 Missouri Coalition's proffered issue statements or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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7 1 Contentions contesting the validity of the Ameren 2 Environmental Report.
3 Specifically with those three Contentions 4 the Missouri Coalition asserts that first, Ameren's 5 Environmental Report does not respond adequately to a 6 May 12, 2012 Agency Order Enforcement Action, or EA-7 12-049, which was issued in response to the recent 8 events in Fukushima, Japan and requires NRC licensees 9 to consider mitigation strategies for very large scale 10 or beyond design basis external events.
11 Second, Ameren's ER fails to explain 12 Ameren's status of compliance with certain NRC Orders 13 and Requests for Information as required by NRC 14 regulations. And lastly, Ameren's ER does not 15 adequately consider wind energy as an alternative to 16 renewing the operating license for Callaway Unit 1.
17 The participants will have an opportunity 18 to make oral presentations to the Board and answer 19 Board questions regarding these contested matters 20 during this Prehearing Conference.
21 Before we begin listening to the 22 participants' arguments regarding these Contentions I 23 would like to take a few minutes and introduce the 24 Board members and have the participants identify 25 themselves for the record, as well as provide some NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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8 1 information regarding several administrative matters 2 relating to today's session.
3 With respect to the Board's members, to my 4 right is Judge William Froehlich. Judge Froehlich is 5 an attorney and a full-time member of the Atomic 6 Safety and Licensing Board Panel. To my left is Judge 7 Nicholas Trikouros. Judge Trikouros, a Nuclear 8 Engineer, is also a full-time member of the Panel. My 9 name is Paul Bollwerk, I'm an attorney, a full-time 10 Panel member and the Chair of this Licensing Board.
11 At this point I would like to have the 12 various participants identify themselves for the 13 record, along with anyone else who may be seated with 14 them at counsel table today. Why don't we start with 15 the Missouri Coalition and then move to the Applicant, 16 Ameren, and finally to the NRC staff. Ms. Curran?
17 MS. CURRAN: Good morning. My name is 18 Diane Curran. I'm an attorney with the firm of 19 Harmon, Curran, Spielberg and Eisenberg, and I am here 20 representing the Missouri Coalition for the 21 Environment. I would like to also introduce Henry 22 Robertson to my left, with the Great Rivers 23 Environmental Law Center, who is also co-counsel to 24 the Missouri Coalition for the Environment. And to my 25 right is Dr. Arjun Makhijani, who has provided expert NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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9 1 support for Contention 3. In addition, in the 2 audience today there are a number of members and 3 supporters of the Missouri Coalition, including Edward 4 Smith, who is the Safe Energy Director of the Missouri 5 Coalition.
6 And on behalf of the organization I would 7 like to thank the Board for coming to Missouri to 8 conduct this proceeding, which is of great interest to 9 the Missouri Coalition and others.
10 CHAIRMAN BOLLWERK: All right thank you.
11 We are glad to be here.
12 MR. LEWIS: Good morning. My name is 13 David Lewis. I am with the law firm of Pillsbury, 14 Winthrop, Shaw, Pittman, and I have the privilege of 15 representing Ameren here today. With me at counsel 16 table is Mr. William Bobnar, the Assistant Managing 17 General Counsel of Ameren.
18 CHAIRMAN BOLLWERK: Thank you.
19 MS. SPENCER: Good morning. My name is 20 Mary Spencer and I represent the NRC staff. I'm from 21 the Office of the General Counsel of the Nuclear 22 Regulatory Commission and with me seated at counsel 23 table are my co-counsels, Beth Mizuno to my left, and 24 to my right Anita Ghosh. And then we also have with 25 us today a summer intern, Jim Akelman and we have two NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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10 1 members of the staff, Drew Stuyvenberg and Carmen Fels 2 (phonetic).
3 CHAIRMAN BOLLWERK: Okay, thank you. As 4 my previous comments indicated during today's 5 conference we will only be entertaining presentations 6 from these three participants. Nonetheless, if a 7 hearing is convened in this matter at some point in 8 the future, in accord with Section 2.315(a) of Title 9 10 of the CFR the Board may issue a Notice that among 10 other things, may indicate that members of the public 11 will be afforded an opportunity to provide, as 12 appropriate, oral limited appearance statements 13 setting forth their views concerning any contested 14 matters relative to the proposed Callaway facility 15 Operating License Renewal. In that issuance or a 16 subsequent Notice the Board will outline the times, 17 places and conditions of participation relative to any 18 opportunity for oral limited appearance statements.
19 In the interim, as the Board noted in its May 11th 20 issuance in this case, any member of the public can 21 submit a written limited appearance statement 22 providing his or her views regarding the issues in 23 this proceeding. Those written statements can be sent 24 at any time by regular mail to the Office of the 25 Secretary, U.S. Nuclear Regulatory Commission, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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11 1 Washington, DC 20555-001, attention Rulemakings and 2 Adjudication Staff or by email to hearingdocket; 3 that's all one word, at nrc.gov. A copy of the 4 statement also should be provided to me as the Chair 5 of this Atomic Safety and Licensing Board by sending 6 it by regular mail to my attention at the Atomic 7 Safety and Licensing Board Panel, Mail Stop T-3F23, 8 U.S. Nuclear Regulatory Commission, Washington, DC 9 20555-0001 or by email to Paul.Bollwerk; B-O-L-L-W-E-10 R-K, at nrc.gov.
11 In addition to being available in the 12 Board's May 11th Order, which can be found in the 13 electronic hearing docket on the Agency's website, 14 www.nrc.gov, this written limited appearance 15 submission information is outlined in the flyers that 16 we have provided, -- we have placed on the table in 17 the back of the room, which provides this and other 18 background information regarding the Licensing Board 19 and this proceeding. And anyone that wants to take 20 one of those flyers is certainly welcome to one; they 21 are back on the back table.
22 With respect to the order of presentation 23 by the participants in this Prehearing Conference in 24 our June 1st Order we outlined a schedule that affords 25 an opportunity for the participants to address the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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12 1 contested matters of contention admissibility now 2 before the Board. In that regard we asked that before 3 starting on the issues for which the Missouri 4 Coalition has been afforded an opportunity for initial 5 argument and rebuttal its counsel should indicate how 6 much of the Missouri Coalition's time allocation for 7 that issue he or she wishes to reserve for rebuttal.
8 Toward the end of the allocated argument time for each 9 of the participants the Board will be providing 10 counsel with notice of the need to finish up his or 11 her presentation.
12 In making their arguments the participants 13 should bear in mind that we have read their pleadings 14 and as such they should focus their presentations on 15 the critical points in controversy, as those that have 16 emerged as a result of the various participant filings 17 over the last six weeks. Additionally, as part of the 18 presentation the Board may seek responses to a series 19 of questions it posed in its June 1st Memorandum and 20 Order.
21 Finally, after completion of the 22 participants oral arguments we would like to have a 23 brief discussion regarding some of the administrative 24 details involved in this proceeding. And relative to 25 administrative matters I would note that this is my NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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13 1 cell phone which I have turned off. I am sticking it 2 in my pocket and I am not going to turn it on again 3 until we are in recess. I would request that everyone 4 else here do the same thing with his or her cell 5 phone, or at least put it on vibrate. But, if you put 6 your phone on vibrate and it goes off while we are in 7 session and you wish to answer it you need to leave 8 the hearing room before you have your conversation.
9 And in that regard you may be aware that there is a 10 bathroom facility back in the back, but I would prefer 11 not to see that hall back there turn into the cell 12 phone conversation hallway. So if you really need to 13 make a cell phone call it would be better to go 14 outside. I think it is a fairly pleasant day outside 15 for a couple of seconds and then come back into the 16 hearing room. We appreciate obviously, everyone 17 abiding by this protocol at any time this Prehearing 18 Conference is in session.
19 At this point, unless the participants 20 have something they need to bring to the Board's 21 attention we will start with the Missouri Coalition's 22 presentation regarding it's Contentions 1 and 2. But 23 before beginning the presentation, for the benefit of 24 the members of the public who are with us today and 25 may not have had an opportunity to review the filings NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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14 1 in this proceeding, I would like to read the language 2 of those Contentions, albeit edited somewhat by 3 shortening or eliminating the various supporting 4 document citations for the purpose of conciseness.
5 And so we are going to be hearing first with respect 6 to two Contentions, 1 and 2.
7 Contention 1: The Environmental Report 8 lacks information regarding proposed modification to 9 the Callaway facility. The Environmental Report fails 10 to satisfy 10 Code of Federal Regulations Section 11 51.53(c)(2), because it does not include information 12 about Ameren's plans to modify the Callaway facility 13 in response to post Fukushima Enforcement Order EA 14 049, March 12, 2012. As also required by Section 15 51.53(c)(2) the Environmental Report must include a 16 discussion of a reasonable array of alternative 17 measures for modifying the facility in accordance with 18 Order EA-12-049.
19 Now with respect to Contention 2 it is a 20 little bit longer, but I will be brief. The 21 Environmental Report lacks information on the status 22 of compliance with Federal requirements and approvals.
23 In violation of 10 CFR Section 51.45(d), the 24 Environmental Report fails to describe the status of 25 Ameren's compliance with NRC post Fukushima Orders and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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15 1 requests for additional information relevant to the 2 environmental impacts of the Callaway Nuclear Plant 3 during the license renewal term. These requests for 4 information, Orders for action, originate with both 5 the NRC and the U.S. Congress. The Environmental 6 Report for renewal of the Callaway operating license 7 is inadequate to comply with NEPA and NRC implementing 8 regulations because it lacks the following information 9 regarding Ameren's compliance with NRC requirements 10 and approvals.
11 (A). Requirement of Order EA-12-049 to 12 quote "develop, implement and maintain guidance and 13 strategies to restore or maintain, or pooling, 14 containment and SFP, which is short for spent fuel 15 cooling capabilities in the event of a beyond design 16 basis external event.
17 (B). The following requirements of the 18 3/12/12 information requests, one, requesting 19 information regarding seismic hazard evaluation and 20 seismic risk evaluation; two, required response 21 relating to seismic hazard evaluation and seismic risk 22 evaluation; three, requested information regarding 23 Seismic Evaluation Report and Integrated Assessment 24 Report; four, required response relating to Hazard 25 Evaluation Report and Integrated Assessment Report; NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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16 1 five, requested 2 actions, requested information and requested response 3 regarding communication systems and equipment used 4 during an emergency event, assuming that a potential 5 on-site and off-site damage is a result of a large 6 scale natural event resulting in a loss of alternating 7 current, AC power, and (B), the large scale national 8 event causes extensive damage to normal and emergency 9 communication systems, both on-site and in the area 10 surrounding the site. Moreover, to the extent that 11 Ameren proposes modification to the Callaway facility 12 in response to the 3/12/12 requests for information 13 NEPA also requires the consideration of the 14 effectiveness and relative costs of a range of 15 alternatives for satisfying NRC's concerns.
16 All right, and with that I will turn to 17 Ms. Curran, are you going to make the presentation?
18 MS. CURRAN: Yes, I am.
19 CHAIRMAN BOLLWERK: All right.
20 MS. CURRAN: And I would like to reserve 21 for each Contention or set of Contentions, -- take 15 22 minutes for the initial presentation and fifteen for 23 rebuttal.
24 CHAIRMAN BOLLWERK: All right, thank you.
25 MS. CURRAN: Before I start in on the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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17 1 issues I would just like to take a moment to describe 2 the overall context of the Contentions and the 3 relationship between them.
4 Contentions 1 and 2 relate to post 5 Fukushima measures that the NRC is requiring of 6 Ameren. It is not clear yet what those measures will 7 be, they are future requirements. Ameren is being 8 required to propose severe accident mitigation 9 measures in response to Enforcement Order Number 12-10 049. And in response to the information requests is 11 being required to submit new information regarding 12 earthquake and flooding risks at the plant that could 13 lead to further requirements, -- changes to the 14 facility.
15 In our view, although those requirements 16 were issued in the context of Enforcement Orders they 17 must be considered in the context of the NEPA review 18 because they will, or are likely to result in design 19 modifications that could affect the environmental 20 impacts of operating Callaway during the license 21 renewal term.
22 Under the National Environmental Policy 23 Act an agency that is going to take major federal 24 action, such as relicensing a nuclear power plant, has 25 to look at all the environmental impacts of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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18 1 proposed action, as well as alternatives for 2 mitigating or avoiding those impacts. We want to make 3 sure that before relicensing Callaway the NRC is fully 4 informed of what additional measures may be required 5 to make Callaway, -- to improve the safety of the 6 Callaway reactor, and that it examines a reasonable 7 array of alternatives for achieving that. That is 8 important here, given the fact that instead of 9 prescribing specific measures to Ameren the NRC has 10 told Ameren that it can devise its own measures and 11 propose them to the Agency. That is the kind of 12 decision-making that NEPA requires to be considered in 13 the public eye, with an opportunity for public 14 comment, and with consideration of alternatives.
15 One of the reasons to conduct a thorough 16 NEPA review of post Fukushima reforms is that it could 17 substantially affect the cost of operating Callaway in 18 the license renewal term. If the costs of operating 19 Callaway is significantly increased that could affect 20 the decision of Ameren and also the NRC as to whether 21 it is cost-beneficial to actually go ahead with 22 relicensing Callaway or whether there are other more 23 cost-effective alternative means of providing the 24 electricity generation that Callaway has provided so 25 far.
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19 1 Therefore the Contentions are, -- and of 2 course, our Contention 3 criticizes Ameren's 3 Environmental Report because it has not considered a 4 renewable energy alternative that is already 5 technically feasible and commercially viable, which is 6 wind generation operating in the MISO grid. So there 7 is something of a relationship between all of these 8 Contentions.
9 I would like to start with Contentions 1 10 and 2. I take it from the Board's Order that the 11 Board has reviewed all of our pleadings. We tried to 12 respond to all of the arguments that the NRC staff and 13 Ameren made in response to our Contentions, so I would 14 like to focus on answers to the Board's questions that 15 were issued on June 1st.
16 CHAIRMAN BOLLWERK: All right.
17 MS. CURRAN: The first question is, --
18 really gets to the heart of the argument by 19 Ameren, -- the principal argument by Ameren and the 20 staff, that these Enforcement Orders and the 21 information requests that were issued are enforcement 22 matters that relate to the current license operation 23 term and don't relate to license renewal. And the 24 Board cited an Order, -- a post 3 Mile Island Accident 25 Order, CLI80-42, and asked us to compare that to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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20 1 Enforcement Orders. There was one particular 2 Enforcement Order issued after the September 11th 3 attacks, and to compare and contrast those.
4 I think what is important here is that in 5 CLI80-42 the Commission talked about how it was going 6 to change the requirements for operating nuclear 7 plants in response to the 3 Mile Island Accident; that 8 those changes could happen in the context of licensing 9 or rulemaking. And of course, licensing and 10 rulemaking are both subject to NEPA.
11 The Commission in CLI80-42 indicated that 12 at least in some cases it determined that its existing 13 requirements were not adequate to ensure adequate 14 protection of public health and safety and that they 15 might need to be modified. In the Enforcement Order, 16 which was issued in 2002, the Commission stated that 17 first of all, the Orders were prescriptive. They were 18 very specific. They were described in an attachment 19 to the Federal Register Notice that was cited by the 20 Licensing Board in its Order that was not released to 21 the public. But one can see from the language of the 22 Federal Register Notice, which is Volume 67, page 23 9792, dated March 4, 2002, in the first column of the 24 Notice the Commission refers to certain compensatory 25 measures. So in other words the Commission here, --
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21 1 although we can't see what the measures are, appears 2 to have prescribed specific measures intended to bring 3 all reactors into compliance with its existing 4 security requirements.
5 The situation that we have post Fukushima 6 is a little bit different in the sense that the 7 Commission has effectively found that its existing 8 requirements are not adequate; need to be changed; 9 that new measures are needed. For instance what is 10 being required in EA-12-049 are severe accident 11 mitigation measures, but not in the usual NEPA context 12 in which the applicant would examine whether they are 13 cost-beneficial. These mitigation measures are being 14 required. And the only question is whether if you 15 compare an array of alternatives which ones are the 16 most cost-effective?
17 So we would submit that the nature of the 18 measures that are being required in EA-12-049 or more 19 like license amendments or licensing actions. We 20 think they are relevant to license renewal because 21 they will change the level of risk posed by Callaway 22 during the operating license renewal term. And in 23 terms of the timing of this, most, -- as Ameren points 24 out, most plants are not in license 25 renewal, -- they have not got License Renewal NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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22 1 Applications pending. But here we have one that is 2 pending. It was filed about twelve years before the 3 expiration of the current license. So in our view, as 4 long as the License Renewal Application is pending 5 where there are proposed design changes that could 6 affect the safety and environmental impacts of 7 operating Callaway during the license renewal term, 8 they must be discussed in the Environmental Report 9 under 10 CFR 51.53(c)(2).
10 CHAIRMAN BOLLWERK: And that's a fact 11 notwithstanding the license renewal proceedings 12 generally. I mean the focus is maintenance, age-13 related degradation, which these may or may not have 14 anything to do with those sorts of issues?
15 MS. CURRAN: Well it is has been very 16 clearly established by the Commission Judge Bollwerk, 17 that NEPA is not restricted to aging issues. Those 18 restrictions apply only to the NRC Safety Review. So 19 in other words whatever the environmental, -- if there 20 is any change from either the initial Environmental 21 Impact Statement that was done with the licensing of 22 this facility, or the generic Environmental Impact 23 Statement that was done in 1996, those changes need to 24 be described, because that is new information, changed 25 information about the environmental impacts. Now I'm NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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23 1 not saying that 51.92 applies here, because we're 2 talking about 51.53(c)(2), which specifically says 3 that if the applicant has proposed changes to its 4 design or operation they need to be described in the 5 Environmental Report.
6 JUDGE TRIKOUROS: Ms. Curran where in the 7 ER would these changes be described? You didn't 8 identify SAMA specifically in your Contention.
9 MS. CURRAN: Well in our view this is a 10 new, -- it's almost, -- well, it certainly should be 11 described in the category of the Proposed Action, 12 because that's what the regulation requires. It 13 specifically says this is part of the proposed action.
14 So I would think there would be a description in the 15 Proposed Action, and then also in the consideration of 16 alternatives. As we say in the Contention because the 17 Order is set up so that, -- to allow Ameren to propose 18 its own measures under NEPA those measures must be 19 proposed in the form of alternatives. So we would 20 assume that in the section of the Environmental Report 21 which contains a discussion of alternatives that would 22 be included.
23 I'm not sure that it belongs in the 24 section that is entitled "SAMA(s)," because the SAMA 25 discussion as it has been traditionally done, looks at NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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24 1 each alternative and weighs the relative cost and 2 benefits of the alternative in its own right. In 3 other words, should we go ahead with this? Does the 4 benefit exceed the cost? And that's not what is being 5 required by EA-12-049 because the Commission has 6 essentially said we think the benefits here are clear 7 and you need to do this. So it's a little bit of a 8 different analysis.
9 JUDGE FROEHLICH: Ms. Curran, my question 10 is a little bit different, but also deals with the 11 timing. How is it that we have to review the 12 environmental impacts of a response which has not been 13 made yet? I mean their response may or may not have 14 any affect on the environment. Isn't this Contention 15 or this approach premature?
16 MS. CURRAN: We think that that would 17 certainly be a reasonable response, but the 18 intervenors in NRC proceedings don't really have the 19 luxury of deciding that kind of thing for themselves.
20 We have to knock on any door that appears to be 21 enterable, possibly. That is how the process is set 22 up for us. We consider ourselves obligated as soon as 23 we saw that this requirement was imposed on Ameren and 24 that Ameren had not responded; that it was, -- we 25 needed to raise this issue as early as possible. We NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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25 1 can't really afford to wait until later and then be 2 told well you were aware of this when the proceeding 3 started. It certainly, -- as a practical matter it 4 would seem to make sense that when the proposal is 5 made then we should criticize it. But we think it is 6 also important to flag right now the fact that we 7 don't think it would be adequate if Ameren did not 8 address this at all in the Environmental Report, which 9 probably Ameren was not planning to do. And we don't 10 think it would be adequate if Ameren proposed only one 11 alternative. So we are putting the NRC on notice as 12 to what we think the requirements are. And the Board 13 could make a ruling that these are the legal 14 requirements which have arisen now.
15 JUDGE FROEHLICH: Thank you.
16 JUDGE TRIKOUROS: So you really are 17 creating a placeholder in a sense?
18 MS. CURRAN: Well we think that that is 19 something that really rests with the Board deciding 20 that. But we do think that there is enough 21 information now that the Board could rule that Ameren 22 has an obligation to include these proposed measures 23 in the Environmental Report and to include a 24 discussion of alternatives. And considering that the 25 Commission has many times said that it wants to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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26 1 resolve issues as early as possible and put everyone 2 on notice of what the requirements are it would seem 3 reasonable to us to establish that requirement now.
4 JUDGE TRIKOUROS: So let me understand how 5 the alternatives argument would work. Ameren would 6 come up with (X) number of proposed modifications to 7 make in response to the Order. Clearly those 8 modifications would cost money. The staff would 9 review their recommended list of modifications and 10 approve or deny them, and they would go back and 11 forth. But once a set of modifications is agreed upon 12 you are suggesting that they be costed-out in the 13 Environmental Report as part of the alternative's 14 analysis and compared against let's say for example, 15 wind; that if the modifications cost more than 1,000 16 megawatts of wind turb that that should be evaluated.
17 Is that what you're saying?
18 MS. CURRAN: What we are saying is that 19 yes, the cost of the proposed modifications should be 20 discussed; that a reasonable array of alternatives 21 should be identified that may have varying costs and 22 levels of effectiveness, and that the information, --
23 whatever option Ameren selects the information about 24 those costs should be integrated into the overall cost 25 benefit analysis for the preferred alternative.
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27 1 JUDGE TRIKOUROS: But clearly none of that 2 can be done until the process I just mentioned is 3 completed?
4 MS. CURRAN: That's right.
5 CHAIRMAN BOLLWERK: I think that with 6 respect to questions, you've sort of dealt with 7 Question A that we posed on Contention 1, and it looks 8 like (B) and (C) probably you would, -- I think the 9 statements we've just heard sort of suggest that you 10 think there is some potential future point, if this is 11 not it, in which someone needs to do something 12 relative to the License Application or the 13 Environmental Impact Statement to discuss these 14 matters?
15 MS. CURRAN: That's right.
16 CHAIRMAN BOLLWERK: But I take it with 17 respect to (B) and (C) you would argue that yes, there 18 is something, if it's not now, it's got to be later?
19 MS. CURRAN: Right. And in the, -- you 20 asked about the Environmental Impact Statement, 21 whether that would have to discuss it. And yes, we 22 think so under Section 51.71(c) and (d). (D) would 23 apply to the description of the new measures and (C) 24 would apply to the response to the request for 25 information. In Question C I think there is a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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28 1 question about timing.
2 CHAIRMAN BOLLWERK: Right. The point 3 there I guess was that there are two steps to this 4 process, one is when an integrated Compliance Plan 5 comes out, and then a second one when the licensee 6 actually has to implement the requirements.
7 MS. CURRAN: Right.
8 CHAIRMAN BOLLWERK: So the question is 9 relative to those two points; what are their 10 responsibilities at that point? And in part, what I'm 11 hearing from you is that if it is not now, certainly 12 one of those two may be the time that something has to 13 be done. Or when the EIS comes out, you know it can 14 maybe, -- there are all kinds of different points here 15 where things are going to happen. And of course, one 16 of those dates is February 13th. And I believe under 17 the schedule here, -- let me just check one second, 18 the draft EIS comes out in about April the 13th or 19 thereabouts, -- a little before that, February the 20 13th.
21 MS. CURRAN: So certainly in terms of how 22 this proceeding is going, it makes sense to analyze 23 these alternatives in the draft EIS; that when they 24 are proposed they should be analyzed in the draft EIS.
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29 1 were submitted after the date of the implementation of 2 the measures, --
3 CHAIRMAN BOLLWERK: Okay.
4 MS. CURRAN: -- then, --
5 CHAIRMAN BOLLWERK: That would be December 6 of 20, '16, right?
7 MS. CURRAN: Well I think that the 8 proposed action would definitely have to include the 9 changes to the design that had been made. Now once 10 the consideration of alternatives had been finished 11 then, -- I guess I'm really not sure how that would 12 work out. But the thing is that this case is pending 13 now, and Ameren has chosen now to treat, -- the NRC's 14 process for dealing with License Renewal Applications 15 creates some odd circumstances where an Agency allows 16 an applicant to come in as much as twenty years before 17 a permit expires and have a review go on way in 18 advance of the expiration of the permit, then it seems 19 to us that what's sauce for the goose, should be sauce 20 for the gander. If in this time period changes are 21 being made to this proposed design and proposed 22 operation, those should be described in the License 23 Renewal Application. The purpose of NEPA is to 24 prevent agencies from compartmentalizing their 25 decisions in a way that evades consideration of what NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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30 1 are the impacts of this proposed action. So if the 2 NRC is now considering what are the impacts of 3 renewing this operating license information that 4 becomes relevant to it in this period needs to be 5 considered.
6 JUDGE TRIKOUROS: Well in the context of 7 the post September 11 world, there were modifications 8 made to nuclear power plants. We don't even know what 9 they are because they've been treated as safeguards 10 information and not made publicly available. Those 11 modifications are not included in any, -- to my 12 knowledge, any License Renewal Applications at all.
13 Now I'm trying to understand the difference, -- and 14 I'm going to be asking this question further on, I'm 15 trying to understand the difference, if any, of these 16 particular plant modifications with respect to license 17 renewal versus ten years ago.
18 MS. CURRAN: Okay.
19 CHAIRMAN BOLLWERK: Let me just expand the 20 scope of that question slightly. I mean there are 21 other modifications that get made to plans during the, 22 -- I shouldn't say all the time, but certainly not on 23 an irregular basis. For instance, what if Ameren came 24 in and asked for a power uprate. Would that fall 25 within the scope of what we're talking about here in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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31 1 terms of what has to be analyzed in the License 2 Renewal Application?
3 MS. CURRAN: Okay, let me try to address 4 all of those, and if I miss one you can remind me.
5 CHAIRMAN BOLLWERK: Okay.
6 MS. CURRAN: The Enforcement Order that 7 was cited in the Board's Order of June 1st, that Order 8 required specific measures. And it appears from that 9 Order that those measures were considered necessary to 10 bring reactors in compliance with the current design 11 basis threat. It's an interpretation of what that 12 threat was. Separately, the NRC also, around the same 13 time period, issued Orders to every single licensee 14 modifying the design basis threat that is contained in 15 NRC's regulations. And the NRC was sued by Public 16 Citizen and Mothers for Peace, who said you are 17 amending all of the operating licenses for these 18 reactors by changing the design basis threat. You 19 need to do a rulemaking or go through license 20 amendments or something, but you've changed the basis 21 for licensing, -- allowing these plants to operate.
22 And the NRC went through a rulemaking.
23 So there you have an example of when the 24 NRC changes the basic requirements it is not just a 25 question of imposing something to bring a plant into NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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32 1 compliance, it is saying to licensees what we have 2 required in the past is not sufficient, we have got to 3 ask you for something more, because we now understand 4 the risks in a different way. That is what happened 5 in that design basis threat rulemaking, and that is 6 what is happening here.
7 CHAIRMAN TRIKOUROS: Except that, -- and 8 the rulemaking, I assume you're talking about 54, --
9 what is it (HH), --
10 MS. CURRAN: No, I'm not.
11 CHAIRMAN TRIKOUROS: No?
12 MS. CURRAN: I'm talking about the design 13 basis threat which is 10 CFR 70, -- does anybody know, 14 --
15 MS. SPENCER: It's (73).
16 MS. CURRAN: (73).
17 MS. SPENCER: Part 73 is security.
18 CHAIRMAN TRIKOUROS: Thank you. But the 19 question I had is with respect to the license renewal 20 and any such requirements. Are they considered in 21 license renewals or are they excluded because it is a 22 generic requirement for all plants?
23 MS. CURRAN: Well wherever, --
24 JUDGE TRIKOUROS: Let me just, -- as an 25 example, if there was a system structure or component NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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33 1 that came out of that, that was required, it is quite 2 likely, I believe, that no license renewal Aging 3 Management Program included any of those SSC(s). Now 4 again, this is going to be a question for everybody, 5 but we are trying to learn from the history here 6 something about today, and also, if there is anything 7 different about this EA and related EA(s) that are 8 coming out of Fukushima?
9 CHAIRMAN BOLLWERK: Right. And that was 10 sort of the point of the question which you talked 11 about, about the difference between the TMI Action 12 Plan and the, -- and they were using Enforcement 13 Orders in one sense now, whereas back then they tended 14 to use a Policy Statement which seemed to open up 15 actually the licensing process or the adjudicatory 16 process much more to consideration of these issues.
17 But with enforcement actions arguably, -- of course 18 there is a Board up at Pilgrim today that's talking 19 about that with the parties as to what the scope of 20 those are. But of course, we are not in an 21 enforcement action. We are not in an operating 22 license proceeding. We are in a license renewal. So 23 that's a question of how that plays together.
24 MS. CURRAN: But it also, -- it gets back 25 to the question of what is the proposed action? And NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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34 1 the proposed action is the continued operation of the 2 Callaway Nuclear Plant for another twenty years. The 3 proposed action is not managing aging components for 4 another twenty years it is operating a nuclear plant 5 for another twenty years. And the NRC regulations for 6 Environmental Reports are intended to require that the 7 aspects of the proposed action which may have changed 8 since the plant was originally licensed, need to be 9 described. So that if, -- because that could change 10 the environmental impacts of the operation, and that 11 is what we have here.
12 So we are submitting to you that a plain 13 reading of that regulation requires a description of 14 those changes, because those changes were not 15 described in the first Environmental Impact Statement 16 for Callaway; they couldn't have been. They were not 17 described in the generic Environmental Impact 18 Statement; they couldn't have been. So NEPA requires 19 that if there is something that has changed it needs 20 to be addressed before license renewal can be allowed.
21 You know you don't have to go back to all those other, 22 -- you know comparing the Enforcement Orders with TMI.
23 A plain reading of that regulation requires a 24 description of design modifications and modifications 25 to the operation of the facility.
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35 1 JUDGE TRIKOUROS: But the argument is made 2 by the other parties that this is a generic licensing 3 activity. Every nuclear plant in the United States, 4 whether it is going through license renewal or not, 5 has to do this. This is not associated with license 6 renewal and the license renewal requirements would 7 exclude it on that basis.
8 MS. CURRAN: But when you say it is not 9 associated with license renewal, that's simply a 10 statement. It is a categorization that as a practical 11 matter doesn't really hold up, because the changes are 12 going to affect the environmental impacts of renewed 13 operation of Callaway. So to make these artificial 14 distinctions between, -- well something is an 15 operating, -- a current operating license issue or an 16 enforcement issue, doesn't really hold up.
17 Another important point is that where the 18 NRC makes generic changes in a rulemaking, NEPA 19 applies to every rulemaking. So were the NRC to issue 20 a rule saying we are going to require these changes in 21 a rule, then there would have to be some kind of 22 generic NEPA analysis, and that would exempt Ameren 23 from discussing the issue. But that is not the case 24 here. The case is that the NRC has ordered all 25 licensees to describe plant modifications. And in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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36 1 this case they will affect the environmental impacts 2 of this plant during the license renewal term. And 3 there is no other proceeding involving a NEPA review 4 in which that requirement for NEPA consideration would 5 be fulfilled.
6 CHAIRMAN BOLLWERK: Well is that because 7 the Agency chose to do it in an enforcement context, 8 which they have the discretion arguably to proceed 9 between Orders and rulemaking? And they have chosen 10 an Order here, which under the rules does not provide 11 for any analysis. So you're sort of taking the ball 12 which is unavailable over here, and moving it over 13 here. Now I'm saying that that is improper, but 14 that's what occurred.
15 MS. CURRAN: But the Commission has not 16 said NEPA is inapplicable to, -- if this happens in a 17 license renewal context, it simply chose to order all 18 licensees to propose these modifications. Whether the 19 results of the Order have implications for a license 20 renewal is a separate question that is not addressed 21 in EA-12-049, it is left open.
22 CHAIRMAN BOLLWERK: Let me go back to my 23 question, the scope question I raised, which is what 24 if this were say a power uprate amendment that came in 25 during the course of a license renewal while the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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37 1 application is pending, what are the implications of 2 that? And there are all kinds of other things we 3 could think of that they could come in and make some 4 attempt to change the way the plant operates.
5 MS. CURRAN: Well had the NRC say issued 6 an Order to amend all licenses, -- this is an Order 7 for the amendment of all licenses to change your 8 design to include measures to address station blackout 9 and loss of cooling; just like the contents of EA 10 049 in a license amendment, then presumably there 11 would be an opportunity to raise those issues in a 12 license amendment proceeding under NEPA and they would 13 be dealt with there. And then when license renewal 14 came up the NRC could point to some NEPA review that 15 had occurred in this license renewal proceeding. But 16 that's not the case here.
17 CHAIRMAN BOLLWERK: Right. So you're 18 saying if they came in and moved for a power uprate 19 that would be an amendment, then the NEPA process goes 20 on to the amendment and therefore we don't have to 21 worry about the license renewal context?
22 MS. CURRAN: That's right, because NEPA 23 would, -- there would be a NEPA review.
24 CHAIRMAN BOLLWERK: So if there were a 25 NEPA review relative to the Order, which the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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38 1 regulations do not provide for I believe, that would 2 take care of the problem and we wouldn't be talking 3 about it here?
4 MS. CURRAN: As a practical matter, -- you 5 know NEPA is a practical statute, so we would, --
6 supposing it had already happened and there was a 7 license amendment and a NEPA review, so then the 8 question that we would have would be did the NEPA 9 review, which only covered an amendment of the license 10 for the next whatever, -- ten years, was that 11 sufficient for covering the twenty years to follow?
12 And I don't know what the answer to that question is, 13 but that's the kind of analysis you would do. But 14 here there's been nothing.
15 JUDGE TRIKOUROS: We don't know obviously, 16 what the changes are going to be that come out of this 17 Order, -- this Enforcement Order, but a number of 18 them, and perhaps all of them, may involve equipment 19 external to the plant, -- equipment that is staged or 20 held in warehouses with procedures and training 21 associated with its utilization to connect to the 22 plant, given a severe environmental, -- you know an 23 external hazard. That would not be, strictly 24 speaking, considered a plant modification. So I'm 25 really bringing up the prematurity issue here, and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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39 1 until we see what comes out of the Enforcement Order 2 for Callaway we won't really know what we're dealing 3 with, will we?
4 MS. CURRAN: In answer to your question 5 Judge Trikouros, I just want to go back to the 6 language of Section 51.53(c)(2), which requires the 7 Environmental Report to contain quote, "A description 8 of the proposed action, including the applicant's 9 plans to modify the facility or its administrative 10 control procedures as described in accordance with 11 54.21 of this chapter."
12 So administrative control procedures that 13 might cover what you're describing here. Certainly it 14 would be, -- we anticipate that when that information 15 is provided we would discuss that in a Contention if 16 we are dissatisfied with it.
17 JUDGE TRIKOUROS: And clearly we want to 18 hear from the Applicant and the staff regarding 19 interpretation of that regarding this, because you 20 know my understanding is clearly plant emergency 21 operating procedures and other procedures are not 22 typically included in license renewal. And so I am 23 not, -- I would like to understand that before we 24 leave here today, but I appreciate you quoting that.
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40 1 guess the one point that you have not dealt with, I 2 guess, in terms of the questions we've asked is (D),
3 which was the relevance, if any, of the Draft Interim 4 Guidance that was provided by the staff last Friday, 5 as well as I guess we indicated there is an NEI 6 document that is cited as a part of that. And I just 7 wanted to see if you had any thoughts on that one way 8 or the other?
9 MS. CURRAN: Yes. Well I think what is 10 important for us to take away from the draft guidance 11 is that what is being required of licensees here 12 is, -- the licensees are being offered the opportunity 13 to come up with alternative measures for satisfying 14 this requirement. And I would like to just direct the 15 points, -- the Board's attention to a letter from the 16 Nuclear Energy Institute to, -- this is written to the 17 Director of the Japan Lessons Learned Project 18 Director, a Mr. David Skeen, on December 16, 2011.
19 The NRC Accession Number is ML11353A008.
20 In this letter the NEI describes what they 21 call their integrated safety focused approach to 22 expediting implementation of Fukushima Dai Ichi 23 lessons learned. And the NEI talks about how they 24 think it is most effective to provide a diverse and 25 flexible means to obtain power and water to support NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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41 1 key safety functions. NEI was looking for flexibility 2 in terms of being able to propose alternatives, and 3 the NRC accepted that. Instead of prescribing 4 measures the NRC said why don't you propose measures 5 to us and we will evaluate them.
6 So in our view that requires NEPA 7 consideration because if the licensees are allowed to 8 propose measures then there is probably alternative 9 measures and they need to be compared. There is not 10 just one way to do it, there is a number of ways to do 11 it. And the purpose of NEPA is to force the agency; 12 and in the Environmental Report it would be the 13 applicant, to look at what is an array of alternatives 14 and what is the best way to accomplish this in a cost-15 effective way.
16 JUDGE TRIKOUROS: Before we leave you, 17 when you say the word alternatives in this context I 18 don't believe that it is appropriate to apply that to 19 alternative plant modifications. Isn't the word 20 alternatives referring to alternatives other than 21 Callaway, not alternatives to the modification of 22 Callaway? I'm not sure how you are using the word 23 alternative?
24 MS. CURRAN: NEPA requires 25 consideration, -- does require considerations of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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42 1 alternatives such as alternative energy supply, but 2 within the proposed action it also requires the 3 consideration of alternatives to avoid or mitigate 4 adverse environmental impacts, for instance SAMA(s).
5 And in this case we submit that because the NRC is 6 offering applicants to propose their own alternative 7 means of addressing this post Fukushima requirement 8 that that is subject to consideration of alternatives 9 under NEPA.
10 CHAIRMAN BOLLWERK: Well if there is no 11 licensing action pending though, what, --
12 MS. CURRAN: In the context of license 13 renewal, because that is pending.
14 CHAIRMAN BOLLWERK: Okay, right. But for 15 a facility that does not have a license renewal 16 pending and they are subject to an Enforcement Order 17 generally they don't have that opportunity. So again 18 we're, --
19 MS. CURRAN: Enforcement and licensing are 20 completely different legal context. But what NEPA 21 requires is that if design changes come out of an, --
22 this is not a request for a hearing on an enforcement 23 action, this is a request for hearings on proposed 24 design changes that happen to come out of an 25 enforcement action. That's where they come from, but NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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43 1 we are not asking for a hearing on an enforcement 2 action. We are asking for consideration in the 3 Environmental Report of design modifications that will 4 affect the impacts of operating Callaway. It is a 5 very practical consideration which is what, -- NEPA's 6 purpose is to include those practical considerations 7 in the decision-making process and not put them off 8 into some other legal category where they have no 9 effect.
10 JUDGE TRIKOUROS: But you had indicated 11 that the fact that each applicant is being left on 12 their own to come up with modifications was important 13 here in this context. And actually, you quoted a flex 14 concept which I believe is documented in NEI-1206, 15 that is really an effort to try and get all of the 16 utility, -- the nuclear operators to do the same basic 17 thing. So I'm a little bit confused by that, but we 18 can come back to that. I don't think we need to 19 address that right now.
20 CHAIRMAN BOLLWERK: I think you have gone 21 through all the points that we had raised, -- or all 22 the questions we had. You have not said anything 23 about Contention 2 specifically, is there anything you 24 want to, -- well we didn't ask any questions about 25 that; anything you want to say about Contention 2?
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44 1 MS. CURRAN: Well Contention 2 is, -- I 2 think the main issue there is that the other parties 3 are saying that the federal approvals that are 4 discussed in Section 51.45 are not, -- don't include 5 NRC approvals. And we believe that there is nothing 6 in the regulation that limits the regulation in that 7 way. And that the approval of the seismic information 8 is an important aspect, relevant to the environmental 9 impacts of licensing operation during Callaway's 10 license renewal term because of course, earthquake 11 risks are an extremely significant aspect of 12 environmental risks.
13 CHAIRMAN BOLLWERK: All right.
14 JUDGE FROEHLICH: On that, so you're 15 equating like a response to an RAI or an Enforcement 16 Order to the approval of a permit, a license, or some 17 entitlement?
18 MS. CURRAN: Yes.
19 JUDGE FROEHLICH: Okay.
20 MS. CURRAN: Because the NRC has said we 21 need to see this information; it is required 22 information.
23 JUDGE FROEHLICH: Do you have any case law 24 or support where the Commission has equated a response 25 to an RAI to a permit or a license that is issued you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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45 1 know by another agency or it's required?
2 MS. CURRAN: Well first of all, this is 3 not a response to an RAI, which is really a request 4 for information to supplement a license application.
5 This is the provision of information relevant to the 6 environmental risks. It's a post Fukushima 7 requirement. It is a new requirement that comes out 8 of a determination that the NRC does not know enough 9 about the seismic risks of operating nuclear plants, 10 so that it is on a different level than other, -- it's 11 a very different level than other information 12 requests. It is not information to determine whether 13 a plant is in compliance with its seismic design 14 basis. It is an inquiry as to whether the seismic 15 design basis is adequate. So this is an extremely 16 important requirement that's highly relevant to 17 environmental impacts.
18 JUDGE FROEHLICH: And on a power with a 19 federal permit or a license from another agency?
20 MS. CURRAN: Federal approvals, yeah.
21 JUDGE FROEHLICH: Okay.
22 CHAIRMAN BOLLWERK: Let me pose one last 23 question; back to Contention 1 again. We spoke just 24 before the proceedings started about the Diablo Canyon 25 Case, and in that case the Board, in one of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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46 1 rulings they made basically said that ER(s) can't, --
2 there is no mandate that an applicant can amend its ER 3 for things that happened after the Environmental 4 Report is filed. And as I mentioned to you, the 5 Commission this morning had an affirmation session and 6 basically let the Board's ruling stand; it did not 7 take a petition that you had filed. What impact, if 8 anything does that sort of ruling have that there is 9 no requirement for the applicant to update their 10 Environmental Report relative to things that happened 11 after they file it have on this case?
12 MS. CURRAN: A couple of things. First of 13 all, this is not new and significant information in 14 the sense that in the Diablo Canyon Case the new and 15 significant information consisted of the 16 recommendations of the Fukushima Task Force that 17 reached conclusions about the risks of operating 18 nuclear plants and what should be done. And we said 19 that was new and significant, -- I represented the 20 Mothers for Peace in that case, and we said that is 21 new and significant information.
22 This situation is more in the line of 23 changed circumstances, which has not been ruled on.
24 And changed circumstances typically are, -- do require 25 an applicant to update its Environmental Report or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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47 1 application. In other words, if there is some new 2 requirement that has to be addressed. It is very 3 standard to amend an application to address that.
4 It's not, -- for instance, new and significant 5 information in our view, arises when something happens 6 outside of the agency or outside of the regulatory 7 process that has bearing on the decision-making 8 process that arguably should be considered. But if 9 the basic requirements for getting a license or for 10 operating safely change, that's changed circumstances 11 that simply requires you to adjust 12 the, -- requires the applicant to adjust the 13 application to address it.
14 JUDGE TRIKOUROS: Well I can quote the 15 Applicant, they say "None of the post Fukushima Orders 16 or information requests can be categorized as 17 approvals that must be obtained in connection with the 18 proposed action". You disagree with that?
19 MS. CURRAN: Yes. That is their 20 interpretation of Section 51.45(d). But in terms of 21 our interpretation of 51.92, which deals with new 22 information and changed circumstances what we are 23 saying is that new information is very different from 24 changed circumstances, and that it is very standard to 25 have to address changed circumstances.
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48 1 CHAIRMAN BOLLWERK: Anything further that 2 anyone else has?
3 (No audible response) 4 CHAIRMAN BOLLWERK: Okay, you have gone 5 through all of the questions and I take it that that 6 is what you wanted to do?
7 MS. CURRAN: Yeah. Thank you.
8 CHAIRMAN BOLLWERK: All right, thank you.
9 Let's then turn to the Applicant. And we had a lot of 10 questions for Ms. Curran, and obviously went a little 11 bit over the time we allotted to her, and we will 12 certainly provide you the same flexibility obviously, 13 in terms of what you need to talk about here. So I 14 think we will have some questions, too.
15 MR. LEWIS: Thank you, Judge Bollwerk.
16 Let me just start with the proposition that I heard 17 from Ms. Curran, that the plain language of the rules 18 that they are relying on require us to describe these 19 modifications.
20 We disagree with that. We think the plain 21 language clearly indicates that we do not have to 22 include these. 10 CFR 50.53(c)(2) requires you to 23 identify the proposed action. And within the proposed 24 action those changes, -- those modifications to the 25 plan or procedures that are required in accordance NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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49 1 with 54.21(d), those provisions, -- and so the ties 2 the modifications that you have to describe to those 3 that you have to make under Part 54, which are those 4 changes that might be made to manage aging. You might 5 have a procedure change to manage aging. You might 6 have to refurbish a component. Those have to be 7 described under Part 54, and those are a part of the 8 proposed action. And I think it is very clear when 9 51.53(c)(2) identifies those kind of modifications as 10 being part of the proposed action that it is defining 11 the types of modifications that the Commission 12 considers and wants to analyze. And by exclusion, 13 other modifications which are unrelated to what you 14 are doing under Part 54 do not have to be included.
15 The same is true under 51.54(d), you have 16 to identify the approval is required in connection 17 with the proposed action. Here there is simply no 18 connection. This is not an approval that we need to 19 get to obtain license renewal. The NRC is imposing 20 these post Fukushima requirements entirely independent 21 of license renewal. We would have to meet these even 22 if we did not apply if we want to continue to operate.
23 There is no causal connection. And in fact, it has 24 always been recognized that NEPA requires a causal 25 connection that is similar to proximate cause. There NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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50 1 has to be some connection between an effect and a 2 proposed action for it to be considered as a part of 3 the proposed action. That is just entirely absent 4 here.
5 It is true that the Applicant has to 6 describe the impacts of the proposed action, but some 7 of those impacts have been assessed generically. And 8 what the NRC has done is it has identified a specific 9 set of impacts that have to be described. And they 10 are identified in 51.53(c)(3). There are a number of 11 Category II issues.
12 The identification of severe accident 13 mitigation alternatives is one of those issues that we 14 have to address, but MCE's reply specifically says we 15 are not taking issue with that. The only thing I've 16 heard them say is that you have to identify these 17 modifications because they will change the level of 18 risk. But that is an issue actually, that we do not 19 as an Applicant have to address in our ER; that is 20 subject to a generic determination in the GEIS that 21 the probability-weighted consequences of severe 22 accidents are small for all plants. And in fact, the 23 Pilgrim Case, which we cite in our Answer, the 24 Commission made it clear that that has been determined 25 generically.
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51 1 I think what is also very significant here 2 is the Missouri Coalition has not provided any 3 explanation or indication how that finding could 4 change, and certainly how that finding, -- how the 5 impact could increase. These are actions that reduce 6 risks. They reduce you know the potential 7 consequences or potential probability of an accident.
8 They are not going to cause an increase in any 9 environmental impact that is identified in the GEIS, 10 or an increase in any environmental impact that is 11 identified in our ER.
12 The Coalition argues NEPA requires them to 13 look at alternatives to these imposed requirements.
14 Well that is not true even in the abstract. NEPA 15 requires you to analyze the environmental impacts of 16 a proposed action that significantly affects the 17 environment. If the Commission were in deed ordering 18 us to do something that caused a significant 19 environmental impact to the environment; you know 20 changing the method of cooling the, -- you know 21 putting in a, -- a plant with cooling power is going 22 to new cooling, because it is more reliable, would 23 obviously have a significant impact and you have to 24 analyze alternatives. But here the only thing that 25 the Commission is doing is requiring the Applicant to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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52 1 identify some things that reduce risks. It is 2 absolutely not true that NEPA requires you to, -- or 3 gives the Missouri Coalition the chance to require 4 analysis of different ways to reduce impacts. That is 5 just not what NEPA requires.
6 Let me turn briefly to your questions.
7 JUDGE TRIKOUROS: Before you do, --
8 MR. LEWIS: Yes.
9 JUDGE TRIKOUROS: -- let me embellish a 10 little bit. With respect to the Commission's 11 intentions with respect to this BA and related 12 actions, I believe they indicate that this is Phase I, 13 basically gathering information, with Phase II being 14 a decision as to whether or not the design basis of 15 the plant should be changed. Now if the Commission 16 decides that the design basis of the plant needs to be 17 expanded would that then, -- the results of this Order 18 in terms of modifications, would that fall under this 19 license renewal action at that point?
20 MR. LEWIS: Actually it could, because the 21 rules in Part 54 require you to identify those CLB 22 changes every year in an Annual Amendment that 23 materially alter the application. Currently EA-12-049 24 is requiring you to mitigate beyond design basis 25 events. So what you propose to do in response to EA-NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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53 1 12-049 is not going to create new safety-related 2 equipment. It is not creating new design basis 3 events. It is not creating new equipment within the 4 scope of license renewal. The scope of license 5 renewal relates to, -- in Part 54, that equipment that 6 is relied on, -- that safety-related equipment that is 7 relied on to prevent or mitigate a design basis event, 8 non-safety-related equipment that whose failure could 9 cause safety-related equipment to fail or certain 10 classes of equipment that are relied on to meet fire 11 protection, ATWAS, station blackout, something else, 12 -- the four rules, -- EQ, not encompassing anything in 13 the scope of EA-12-049.
14 If the Commission actually had required, 15 -- or in the future says yes, we are now creating new 16 design basis events and you now have to treat these as 17 a design basis event and have safety-related equipment 18 to prevent or mitigate it, you would in fact be adding 19 equipment to the scope of, -- equipment important to 20 license renewal. In Part 54 you would have to 21 identify those CLB changes in your application. That 22 is just not the case here. But if that kind of 23 situation occurred the answer to your question is yes.
24 JUDGE TRIKOUROS: Or if the regulation 25 that you've just quoted that brought in EQ(s), station NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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54 1 blackout, you know the non-design, -- the design basis 2 events that are not design basis events or whatever 3 you want to call them, --
4 MR. LEWIS: Yes. If the Commission 5 amended that rule, yes.
6 JUDGE TRIKOUROS: And that may or may not 7 happen, but if it does you agree that then a lot of 8 these arguments that are being proposed here would 9 then be true, the license renewal would be affected?
10 MR. LEWIS: At that point in time.
11 JUDGE TRIKOUROS: At that point in time 12 right, according to your, -- that's the question I'm 13 asking, at that point in time?
14 MR. LEWIS: There was a similar situation 15 in the McGuire-Catawba license renewal proceeding, and 16 I can find the citation at a break. But there was an 17 assertion that license renewal needed to consider the 18 possibility if a plant would burn you know mock fuel 19 in the future. And there was a reference to the fact 20 that there was a need to analyze potential changes to 21 the CLB. And the Commission said that refers to 22 changes to the CLB that has occurred. We are not 23 going to, -- you know there is nothing that requires 24 an applicant to address the possibility of future 25 changes to the CLB that at this point are inchoate.
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55 1 And that is the exact situation here.
2 JUDGE TRIKOUROS: I understand.
3 CHAIRMAN BOLLWERK: So in part we are back 4 to a question of timing here, in terms of, -- although 5 you all, obviously depending on if this were to be put 6 into the rule, and you've already gone through the 7 process, then you've made it in the sense that you've 8 gotten by without having to analyze it because the 9 rule came after your License Renewal Application was 10 put in place. If that were to play out that would be, 11 --
12 MR. LEWIS: If there were a CLB change 13 like that or it would probably require a license 14 amendment and it would be a separate proceeding, -- or 15 it would be a generic requirement that the NRC would 16 analyze that.
17 CHAIRMAN BOLLWERK: Right. So you would 18 have to analyze it as a part of the license renewal?
19 MR. LEWIS: I would assume so, depending 20 on what the change is. And that is very speculative, 21 and that is actually another reason why you would not 22 want to try and get into this, you would not know what 23 those changes are. I don't think you could even 24 handle that situation now, nor should you be waiting 25 for something that's a mere possibility.
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56 1 With respect to the timing, your 2 question, -- one of your questions was you know does 3 the timing of the License Renewal Application you know 4 make a difference? And I would submit to you it makes 5 absolutely no difference. The issue here is not the 6 timing of the application, the issue here is that EA-7 12-049 and these other requirements are not part of 8 license renewal. They are not causally connected to 9 license renewal.
10 I believe I heard Ms. Curran suggest that 11 if a License Renewal Application were filed after 12 these changes had been already made, at that point 13 they would get brought in and you would have to 14 analyze alternatives after the fact. That makes no 15 sense whatsoever. You know and the reason is again, 16 is it is simply unrelated to license renewal. So it 17 is not a matter of when the application is filed. If 18 we had filed our application next year after we had 19 described these proposed modifications they would be 20 no more within the scope; they would be no more 21 causally related. You know perhaps they would 22 eliminate some uncertainty in the claims of the 23 opponent, but I think all that they would show in 24 fact, is that there is no environmental impact from 25 the changes, all they do is reduce risks. And they NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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57 1 would not materially alter any finding in the GEIS, 2 and they would not materially alter anything in our 3 Environmental Report.
4 With respect to the TMI Policy Statement 5 that you inquired about, and its difference in 6 the, -- as opposed to the two Enforcement Orders; the 7 one after 9/11 and the one after the Fukushima 8 accident, the Policy Statement and these Orders are 9 not the real question. The real question is what's 10 within the scope of license renewal? In the Policy 11 Statement the Commission was licensing a new plant or 12 licensing new plants. And it was applying this Policy 13 Statement to the licensing of a new plant. And they 14 make a broad finding of reasonable assurance that a 15 new plant operation would be consistent with public 16 health and safety. And so they allowed their TMI 17 Action Plan measures to be contested to a certain 18 extent, in individual licensing proceedings because 19 the scope was broader than the constraint.
20 In license renewal the Commission has 21 specifically limited the scope to aging, -- managing 22 the effects of aging. And has specifically said that 23 all other issues, including the adequacy of the CLB, 24 the operational safety of the plant, are outside the 25 scope of the license renewal and are not subject to be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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58 1 contested. That is the real significance here and not 2 the scope of the Policy Statement or the scope of the 3 Enforcement Orders.
4 CHAIRMAN BOLLWERK: I don't want to put 5 words in her mouth, but I think I heard Ms. Curran say 6 that that only applies on the safety side, not on the 7 NEPA side?
8 MR. LEWIS: Yes I think that is true, but 9 on the NEPA side again, our obligation is to analyze 10 Category II issues. Here there is no showing that 11 this Enforcement Order is going to affect any Category 12 II issue. The Coalition has specifically disclaimed 13 challenging our SAMA analysis. The only issue again 14 they say is it may affect risk. That is an issue that 15 has been generically determined. You know perhaps 16 yes, if there were in deed an Order that would 17 materially increase an impact that was assessed in our 18 ER it would be required to be analyzed. Of if there 19 was a change that materially increased one of the 20 generic findings of impact in the GEIS it could be put 21 forth as significant new information and an opponent 22 could seek a waiver.
23 But that is not the case here again.
24 These are measures that in the end will do nothing 25 more than reduce risk. It is not going to increase an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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59 1 impact. It is not going to be, -- the probability-2 weighted consequences of a severe accident is now not 3 going to be large as a result of this. And as the 4 Commission has determined generically, it's small.
5 And here, the Coalition has not made any showing that 6 that generic finding would be affected.
7 CHAIRMAN BOLLWERK: You're making an 8 interesting argument. Arguably, -- again, this is one 9 of the things that Pilgrim, -- what I think is being 10 heard today. But under the Enforcement Order in the 11 Balatti Case the only thing that you can really 12 contest in an enforcement action are something that in 13 fact you say increases risk and therefore you need to 14 fall back, -- do away with whatever the staff is 15 proposing to be done, and go back to the baseline that 16 you already had. You can't ask for newer measures, 17 you can't ask for the X, Y or Z. You have to say 18 staff says (A), (A) is bad, you need to get rid of 19 (A). Now you're saying that if there is increased 20 risks then you can analyze this under NEPA, even 21 though you couldn't under the Enforcement Order, if 22 I'm understanding where you're going with this?
23 MR. LEWIS: I think under the Balatti 24 decision when the Commission has defined the scope of 25 an Enforcement Order as, --
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60 1 CHAIRMAN BOLLWERK: Or the Order has been 2 sustained?
3 MR. LEWIS: -- and the Order has been 4 sustained, the only issue that you can raise is 5 whether the, -- it should be sustained. And you 6 cannot argue that more should be done.
7 CHAIRMAN BOLLWERK: Right. But you can 8 certainly argue that what you are about to do is bad 9 and you should get rid of it?
10 MR. LEWIS: Yes. And so if there is a 11 requirement to do something that in fact would 12 increase risk and would subject the public to adverse 13 consequences, you could say that's a bad idea and 14 should be opposed. Again, here I think though that 15 you know there is no allegation that being able to 16 mitigate beyond design basis events for longer periods 17 of time is bad and harms the public. I guess if when 18 we submit our plan if we were in fact you know 19 proposing something that increased overall severe 20 accident risk you know that might be a different 21 situation. I don't think that Ameren is going to 22 propose a measure in response to 12-049 that increases 23 severe accident risk.
24 JUDGE TRIKOUROS: I think that this post 25 Fukushima licensing world is like a moving train. The NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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61 1 Intervenors don't want, -- they understand the safety 2 significance, --
3 CHAIRMAN BOLLWERK: Right, the train is 4 pulling out of the station and they want to be on it.
5 JUDGE TRIKOUROS: Yes, there is serious 6 safety significance here. They know that. The train 7 is moving they want to be latched to that train. This 8 Contention is sort of an effort to do that and there 9 are premature arguments being raised.
10 After, -- I think it's 50.54(h(h), the 11 fire, -- large explosion requirements, people put, --
12 and after 9/11, people put equipment in place to deal 13 with that. And right after Fukushima the staff did an 14 evaluation of that and found that that equipment had 15 been, -- you know it wasn't even there in many 16 instances, or in other instances was there, but nobody 17 knew how to use it. And they've corrected that in 18 this effort by throwing training requirements, 19 procedural requirements, et cetera, -- inspection 20 requirements are all being included. So they learned 21 from that mistake.
22 Somewhere along the line this train is 23 going to go into the realm of design basis. Clearly 24 that is the direction it's going; at least in my view, 25 and I think you know they've actually basically said NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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62 1 that and at least eluded to that. So the question 2 really here is do we have a premature contention? And 3 I think we have to wrestle with that question. But 4 the Intervenors are trying to argue that it is not 5 premature. You're arguing that it's not, -- it should 6 be, -- that it doesn't apply at all.
7 MR. LEWIS: Yes, I agree it is not 8 premature. I'm arguing it's outside scope and this is 9 the wrong forum. And yes, the members of the public 10 and individuals may have great interest in the post 11 Fukushima requirements, and they should do so by you 12 know expressing their views to the Commission. And 13 after an applicant proposes their modifications if 14 they think they are wrong they should raise those 15 concerns with the staff. Whether they will have a 16 hearing opportunity I think would depend on you know 17 what those modifications are; if they involved a 18 license amendment. I guess which is conceivable if 19 they involved an un-reviewed safety question they 20 would involve a license amendment. If they didn't, 21 they won't. But I think it is clearly improper for 22 them to be trying to hitch that issue to this wagon, 23 there is no causal relation.
24 JUDGE FROEHLICH: If they hitched it to 25 the Company's response to the Commission's Order would NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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63 1 the Company be objecting to their contention? Not 2 going to the merits of the contention, but the timing 3 of that contention? If we say to them, -- and Ms.
4 Curran expressed a concern that they have to respond 5 as early as possible; they want to raise the flag.
6 I'm saying if they raised this flag in response to 7 your filing will you oppose it on a timing basis; that 8 it's too late?
9 MR. LEWIS: I believe that if our 10 Compliance Plan identified a modification to the 11 facility that was required to be included under 54.21, 12 -- let me make sure I have the right, -- be included 13 in our application under 54.21, and there was some you 14 know reason for objecting to that, there would be good 15 cause. Now whether they have a valid contention or 16 met all the other standards, but yes, in the future if 17 we identify a change that materially alters our 18 application and as a result, under 54.21 we have to 19 amend our application as that rule provides, it would 20 seem to me that it would be good cause at a minimum.
21 And you know a lot of other issues though to decide at 22 that point.
23 JUDGE FROEHLICH: And on the merits you 24 would address the scope and the other issues?
25 MR. LEWIS: Yes.
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64 1 CHAIRMAN BOLLWERK: Do you want to say 2 anything about how this plays into the question of 3 ER(s) having to be amended or not?
4 MR. LEWIS: I have not read the decision.
5 It is true that there is generally not an ER updating 6 requirement like there is an FS error updating 7 requirement. But I've always believed that there is 8 an obligation to tell the NRC if your application is 9 materially wrong, or there is material information 10 that affects it. So whether you have to amend your ER 11 you know perhaps is the wrong issue. I think you 12 would definitely have to disclose it to the staff on 13 the docket. If the staff had done their Draft 14 Environmental Impact Statement and it affected that, 15 they would have to supplement that draft. And so 16 perhaps it does not require an amendment to the ER, 17 but it would have to get in the NEPA review somehow.
18 Again, I have not read this morning's decision, so I'm 19 not sure of any, --
20 CHAIRMAN BOLLWERK: Well actually I think 21 all the decision says, if I'm understanding it is they 22 are not taking review of what the Board certified, 23 which is a question about whether ER(s) have to be 24 amended or Ms. Curran's Petition for Interlocutory 25 Review. So I don't think it says a whole lot.
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65 1 JUDGE FROEHLICH: There is also a dissent 2 by the Chairman from the Order, and he gives separate 3 reasons he's responding to, --
4 CHAIRMAN BOLLWERK: That's neither here 5 nor there. Okay. All right, anything further that 6 you want to tell us at this point?
7 JUDGE TRIKOUROS: I just wanted, --
8 CHAIRMAN BOLLWERK: Go ahead.
9 JUDGE TRIKOUROS: -- I wanted to clarify 10 one thing. Any of the system structures and 11 components that come out of this EA-12-049 are not 12 going to be looked at from the point of view that's of 13 aging management, correct? The Applicant is not 14 planning to include any of those in the Aging 15 Management Program?
16 MR. LEWIS: I believe that's correct, not 17 as a part of license renewal. Again, that equipment 18 would not be within the scope of license renewal as 19 defined in Part 54.
20 JUDGE TRIKOUROS: Okay.
21 CHAIRMAN BOLLWERK: And I take it that 22 sort of deals with Question D we asked as well, which 23 is what is the relevance of anything of what's in the 24 staff's guidance, -- Interim Guidance, or the NEI Flex 25 Plan, I guess it is sort of cited there as?
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66 1 MR. LEWIS: I think the only relevance of 2 you know what is described in the Flex Plan right now 3 is you know undercutting any speculation at this point 4 that there is going to be modifications that result in 5 significant environmental impacts. And again, there 6 has certainly not been any basis you know put forward 7 by the Missouri Coalition that there is going to be 8 something that requires a major modification.
9 For example, a big part of the evaluation 10 is, is there a flooding risk that needs to be 11 mitigated? Well Callaway is on a high plateau, it's 12 300 feet above the highest flood level of the river.
13 It's 250 feet above the flood plains of the nearest 14 creeks. And that's in the FSA, or they could have 15 looked it up. Being on a plateau where the slopes 16 actually slope away there is terrific run-off. You 17 know this is not going to be a site, -- and certainly 18 there is no basis suggested where you know we need to 19 build dikes or dams or, -- that kind of factual 20 predicate for the speculation that is offered is 21 entirely lacking here.
22 Instead, what this Flex Plan shows is that 23 what you're trying to do is have portable equipment 24 that you can stage nearby that you can hook up that is 25 going to reduce risk, allow you to cope with a severe NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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67 1 accident you know longer than you could now. Again, 2 all that suggests to any reasonable reader is that you 3 know this is only going to be you know changes, -- you 4 know the staging of equipment that is going to reduce 5 risk, not cause an increase in any environmental 6 impact.
7 CHAIRMAN BOLLWERK: All right, any other 8 questions that the Board has?
9 JUDGE TRIKOUROS: No, not right now.
10 CHAIRMAN BOLLWERK: All right, are you 11 finished sir?
12 MR. LEWIS: Yes.
13 CHAIRMAN BOLLWERK: All right, thank you.
14 Let's turn to the staff then.
15 MS. CURRAN: Excuse me.
16 CHAIRMAN BOLLWERK: Oh sure.
17 MS. CURRAN: Judge Bollwerk, could we ask 18 for a ten minute break?
19 CHAIRMAN BOLLWERK: Sure. We were going 20 to do it after we were done with the Contention, but 21 maybe this is a good time.
22 MS. CURRAN: It would be for me.
23 CHAIRMAN BOLLWERK: That's fine. Let's go 24 ahead and take a ten minute break and we'll come back 25 and start with the staff.
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68 1 [Whereupon, at 10:29 a.m. the hearing was 2 recessed, to reconvene this same day at 10:39 a.m.]
3 CHAIRMAN BOLLWERK: All right, let's go 4 back on the record please. All right, we had a brief 5 break and we are ready to start with the staff's 6 response. Before we do however the Applicant's 7 counsel wanted to add one citation to the record just 8 for clarification purposes.
9 MR. LEWIS: Yes, I referred to a 10 Commission decision in McGuire-Catawba and said I 11 could find the citation. It is CLI02-1455 NRC at 278.
12 CHAIRMAN BOLLWERK: All right, thank you 13 sir. All right, let's hear the staff then. Many 14 interesting ideas on the table here, what do you have 15 to contribute, -- what are you going to tell us?
16 MS. SPENCER: Good morning your Honors.
17 I'm Mary Spencer and I represent the NRC Staff. I 18 guess one point, -- before I was going to focus my 19 presentation exclusively on the questions that the 20 Board posed about Contention 1 in its June 1st Order, 21 but I guess one thing that has come up and it's 22 perhaps, more for clarification of the audience than 23 for the Board, the difference between the Order, --
24 and the Order is the subject of Contention 1.
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69 1 information about compliance with the Order and the 2 Environmental Report, whereas Contention 2 talks about 3 both the Order and the 50.54 Information Request. And 4 I think one matter that has not been made clear this 5 morning is that the Order was issued and the Order is 6 immediately effective and imposes the requirements, --
7 the requirements are immediately effective. The Order 8 is immediately effective, but the parties have time, 9 -- the licensees have time to come into compliance.
10 So there is no further licensing action contemplated 11 in the sense that the Order, -- the requirements of 12 the Order are immediately effective. There is just 13 additional time for compliance, which is no different 14 than a lot of rules that the Commission issues, in 15 that the rule may be effective in 30 days, but then 16 licensees have perhaps, two years to come into 17 compliance with the regulation.
18 So for purposes of NEPA you know the NEPA 19 would attach to the Order. However under the 20 Commission's regulation 51.10(d) which incorporates 21 CEQ regulations there is no NEPA analysis performed 22 for Orders. And that has been true throughout the 23 history of the NRC. If you look at the Orders from 24 9/11 you will see no discussion of NEPA. And if you 25 look back to Orders that were issued around the time NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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70 1 of TMI, although the Action Plan refers to Orders, --
2 I mean there were Orders and Bulletins issued 3 following TMI, in addition to the TMI Action Plan.
4 And some of those are discussed in the TMI Action Plan 5 itself.
6 And so the other matter is that the 7 issuance of this Order, -- of the Order EA-049, does 8 not change the proposed action. I mean here we are 9 still talking about the proposed action, which is to 10 renew the operating license for Callaway Plant, and 11 that is looking at twenty additional years of the 12 potential environmental impacts, twenty additional 13 years of operation, which would be 2024 until 2044.
14 So turning to the Board's Question Number 15 1, following TMI the Commission issued a Policy 16 Statement which provided guidance on litigation of TMI 17 safety issues and power reactor operating license 18 proceedings. The Commission did not issue any such 19 Policy Statement after 9/11, and continued to follow 20 its Part II procedures. And this was notwithstanding 21 a request to suspend licensing actions following 9/11.
22 It is important to keep in mind that 1980 23 was a different time than post 9/11 and the post 24 Fukushima time, because at that time many of the 25 nuclear reactors currently operating in the United NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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71 1 States were not yet licensed. And that would be 2 Callaway included, because Callaway did not receive 3 its operating license until 1984. So the Commission 4 was still, -- and the Commission staff was still in 5 the process of reviewing a lot of licenses, --
6 operating licenses, and they were still proceeding to 7 go on.
8 In CLI1105 the Commission recounted its 9 response to both TMI and 9/11. And you know as noted 10 there, -- and the Commission issued a series of Policy 11 Statements in the post TMI time frame providing 12 guidance to licensing boards on litigation of TMI 13 safety issues. And in providing that guidance the 14 Commission stated that the existing procedural 15 requirements for filing contentions, such as 16 timeliness and specificity, would still apply. And 17 you know specifically, as noted by the Board, the 18 Commission authorized some challenges to the guidance 19 provided in the TMI Action Plan. But I would note 20 that the word requirement, -- there is a reference to 21 the word requirements of the TMI Action Plan, but 22 there was a later Commission decision, CLI81-5 that 23 indicated that New Reg. 0737, which is the TMI Action 24 Plan Clarification, did not impose legally binding 25 requirements in and of itself. Also in CLI1105 the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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72 1 Commission observed that TMI related issues were 2 litigated in very few operating reactor proceedings.
3 And then as you know, the Policy Statement was 4 rescinded in 1989.
5 The Commission's response to Fukushima is 6 very similar to its response to 9/11. The Commission 7 is conducting, and has conducted, and is continuing to 8 conduct a systematic review of its regulatory 9 requirements and intends to imply any of those 10 requirements to all licensees, regardless of whether 11 they have cold or are applying for renewed licenses.
12 In CLI1105 the Commission refused to 13 establish special procedures for litigation of 14 Fukushima contentions, -- Fukushima related issues in 15 proceedings. They did not think it was necessary at 16 that time to do so, and they did not preclude the 17 possibility of it occurring in the future, but they 18 said they saw no need at that time. And they did 19 state that to the extent Fukushima events provide the 20 basis for contentions appropriate for litigation in 21 individual proceedings the Commission's procedural 22 rules contain ample provisions for litigants to seek 23 admission of such contentions.
24 The other point to be made in connection 25 with this is that numerous licensing boards have NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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73 1 concluded that contentions seeking to impose stricter 2 requirements or requirements beyond the regulations 3 are not admissible. And also contentions challenging 4 the Commission's regulations are generally 5 inadmissible.
6 Turning to the second question with regard 7 to amendments to the application, whether Ameren has 8 any duty to amend its application, as discussed by 9 Ameren's counsel, under 54.21(b) the applicants must 10 submit an annual update if there are changes to the 11 current licensing basis that materially affect the 12 contents of the LRA. There is no similar provision 13 requiring, -- specifically requiring the Applicant to 14 update the Environmental Report. But as Mr. Lewis 15 pointed out there is a duty to ensure that the 16 information provided to the NRC is complete and 17 accurate. And so that could in theory prepare an 18 avenue for an applicant to feel a need to supplement.
19 Of course the staff can ask for RAI(s),
20 and staff's position of course, is that there is no 21 specific explicit regulatory requirement that 22 applicants update their Environmental Report, because 23 that report is really intended to assist the NRC staff 24 in fulfilling its NEPA obligations.
25 As far as supplementing a draft EIS or a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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74 1 final EIS, the Commission's regulations established 2 standards for when those things need to occur. And 3 they are when there is a substantial change in the 4 proposed action that is relevant to environmental 5 concerns, or there are new circumstances or 6 information relevant to environmental concerns bearing 7 on the proposed action or its impacts.
8 You also asked about when the staff may 9 supplement an SER with open items or an SER, -- a 10 final SER. And generally I think there is no 11 regulatory standard established for that like there is 12 for supplementation of EIS(s). But in practice, if an 13 applicant substantially modifies its application that 14 would generally require a supplement. Also if the 15 staff became aware of operating experience or an 16 error, -- some issue they could, -- and it has been 17 done, to supplement an SER, even a final SER, when the 18 staff becomes aware of a new or emerging issue that 19 needs to be addressed.
20 With respect to future timing of the 21 submissions, the staff believes that the arguments we 22 made in our Answer to the Petition apply with equal 23 force to a License Renewal Application submitted 24 either after February 2013 or in 2016. These matters 25 have simply no nexus between these Orders and license NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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75 1 renewal. And this is unrelated. In fact yes, we do 2 not disagree with Petitioners that NEPA, for purpose 3 of license renewal is not limited to the scope of our 4 safety review. But it is limited to the environmental 5 impacts of an additional twenty years of operation.
6 And the Orders must be complied with. Callaway must 7 be in compliance with Order EA-049 by December 31, 8 2016, regardless of whether the renewed license is 9 granted. And every other plant in the United States 10 that received this Order; and all operating plants 11 received it, must be in compliance by 2016, regardless 12 of whether they have a renewed license or they are 13 seeking a renewed license. And so the timing of the 14 application in our view is not relevant.
15 Finally, with respect to the Interim Staff 16 Guidance we think that that generally supports our 17 view; that there is no nexus, but you know petitioners 18 are obviously under an obligation to amend their 19 contention if they believe that those documents 20 provide support for the contention that they have.
21 And so ultimately the Petitioners just 22 simply have not provided any basis for their assertion 23 that the Order which is intended to enhance the 24 mitigation of severe accidents and improve safety 25 could result in greater environmental impacts during NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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76 1 the proposed period of extended operation. And they 2 simply have not demonstrated that there is a nexus 3 between the Order and compliance of that Order, and 4 license renewal. And that's theMcGuire citation that 5 Mr. Lewis provided at the beginning of our session.
6 JUDGE TRIKOUROS: Is EA-12-049 considered 7 part of the current licensing basis for the plant?
8 MS. SPENCER: Yes. I would say that it 9 would be considered. It is a requirement, they don't 10 have to, -- I believe that it would be considered, 11 it's just something that they don't have to be in 12 compliance with at this point because they are, --
13 they have time provided under the rules to come into 14 compliance, whereas the 50.54(f) letters would 15 certainly not be.
16 JUDGE TRIKOUROS: But it will be part of 17 the current, -- you're saying yes, it is part of the 18 current plant?
19 MS. SPENCER: It will be. It will be in 20 the sense if they haven't implemented the 21 requirements. I mean it's a current requirement in 22 the sense that the Order is immediately effective and 23 they need to be working on compliance in accordance 24 with the schedule established by the Order.
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77 1 requirement is to preserve the current licensing basis 2 throughout the additional twenty year renewal, so how 3 does that exclude the Order, -- the modifications that 4 may come out of the Order?
5 MS. SPENCER: Well it doesn't exclude them 6 so much as it doesn't, -- it isn't within the scope of 7 proposed action, which is to look at the environmental 8 impacts for an additional twenty years of operation, 9 and in looking at the modifications at the facilities 10 that are being done attendant on license renewal. It 11 is not part of the proposed action in this case, 12 because the proposed action is to look at the 13 additional impacts of the twenty years of extended 14 operation. And this has no nexus to that. This Order 15 is a separate action from the license renewal action.
16 CHAIRMAN BOLLWERK: I mean your argument 17 is basically whether they renew or not they still have 18 to comply, therefore it has nothing to do with license 19 renewal?
20 MS. SPENCER: Yes.
21 JUDGE TRIKOUROS: It is somewhat 22 convoluted though, because of the statements that are 23 made in the regulations. It is not clear to me that 24 CLB actually means design basis. But if I asked you 25 that same question with respect to design basis, --
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78 1 well I know the answer, but I'll ask it anyway, is 2 this Order and the result of this Order going to be 3 part of the plant design basis?
4 MS. SPENCER: I think it would be.
5 JUDGE TRIKOUROS: Will be?
6 MS. SPENCER: It will be, yes.
7 JUDGE TRIKOUROS: That's a yes?
8 MS. SPENCER: I believe that's a yes, 9 because they will be making changes, -- presumably 10 they will be making changes to the design basis in 11 order to comply with this. What that exactly is going 12 to entail and what that is right now we don't know.
13 But it's not unusual for the NRC anymore, the 14 Commission has gone to you know performance based 15 regulations, so if you look at 50.54(h)(h) for 16 example, that we've been talking about earlier, it 17 simply says you know have strategies, have procedures 18 to deal with large fires and explosions. It doesn't 19 tell licensees exactly how to do it, and that is the 20 same thing with some of the Part 73 regulations that 21 were put in to make the Orders from post 9/11 22 generally applicable. They simply tell licensees to 23 ensure that, -- meet certain requirements, have 24 certain capabilities, but they do not tell the 25 licensees how to obtain those capabilities.
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79 1 JUDGE TRIKOUROS: And to further add to 2 the confusion the severe accidents in license renewal 3 space are identified as very small safety risks, and 4 yet, we are going through this massive effort post 5 Fukushima to do required severe accident 6 modifications. Not recommended or requested, but I 7 mean required severe accident modifications. We are 8 left with things hanging out. Now I understand the 9 Commission is probably looking at how to integrate all 10 of this, but you know we are left right now with 11 disparity things.
12 MS. SPENCER: That is not necessarily a 13 new thing though. As I believe you, Judge Trikouros 14 mentioned earlier, that we have, -- the Commission 15 already has certain regulations that are, -- address 16 beyond design basis or severe accident scenarios.
17 Beyond design basis for sure with the Station Blackout 18 Rule, but also the ATWAS, and there are, -- and 19 50.54(h)(h) would also be considered severe accident 20 scenario; that it would be beyond design basis. So I 21 guess the Commission is acting expeditiously in areas 22 that it believes are necessary for reasonable 23 assurance, but that does not necessarily mean that 24 they are not going to follow up with Task Force 25 Recommendation 1 to make the regulations more NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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80 1 comprehensive and more, -- or clearer about how 2 different types of accidents should be treated.
3 JUDGE TRIKOUROS: Okay.
4 CHAIRMAN BOLLWERK: Well I think part of 5 the Intervenor's argument though, if I heard it 6 correctly, was that their concern is the cart and the 7 horse here, and the cart is way before the horse. If 8 the Commission wants to do rulemaking that's fine, do 9 the rulemaking and I'll comment on it and what comes 10 out of that, comes out of it. But actually what 11 you're doing is taking the actions first and putting 12 the rule in place second, and that leaves them out of 13 the picture in terms of their ability when the changes 14 are being made, which may be some time well before the 15 rule, how do they become part of the process?
16 MS. SPENCER: Well I think what you said 17 is correct it's what was done after 9/11. And I think 18 the concern is that the staff, -- the Commission 19 determined that the requirements imposed by the Order 20 were necessary for reasonable assurance of adequate 21 protection. And under the Atomic Energy Act the 22 Commission is duty bound to provide reasonable 23 assurance of adequate protection, and I guess if you 24 were to follow through with the Petitioner's argument 25 you would say well it's more important to have public NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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81 1 participation than it is to address what the 2 Commission has identified to be as actions necessary 3 for reasonable assurance of adequate protection to 4 wait. And that is not something that the Commission 5 chose to do at this time. And that is probably part 6 of the reason why the Commission rarely does go down 7 the road of issuing Orders. It is not a common thing 8 for the Commission to do. But where the Commission 9 believes it is necessary to take those measures and 10 impose them by Order, and then subsequently follow up 11 with rulemaking, that's possible.
12 I mean the Commission does of course, 13 offer an opportunity to challenge our Orders. And as 14 we discussed earlier with the Balatti Case that that 15 challenge, -- the ability to challenge may be somewhat 16 limited because the Commission gets to define the 17 scope to whether the Order should be sustained, but 18 it's a matter of the process.
19 CHAIRMAN BOLLWERK: But I think Ms.
20 Curran's point is until the staff, -- until the 21 Applicant, -- I'm sorry until the Agency does the 22 rulemaking that leaves questions open for cases like 23 this where it is not covered. And why can't she hold 24 the Agency's feet to the fire and say NEPA still has 25 a requirement here. You have not foreclosed it or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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82 1 dealt with it on the rulemaking side, the Order side 2 does not tell us anything about how it applies here 3 therefore we get to litigate this here?
4 MS. SPENCER: Well I think you could view 5 that perhaps, then, as a challenge to the rule, but it 6 states that Enforcement Orders are not subject to a 7 NEPA review.
8 CHAIRMAN BOLLWERK: Yeah, but we are not 9 in an Enforcement Order case, that's her whole point.
10 MS. SPENCER: No, we are not. But she 11 needs to show that, -- Petitioners need to show that 12 this is somehow, -- has a nexus to, and is within the 13 scope of this proceeding, and they have not done that.
14 CHAIRMAN BOLLWERK: Okay, I think we are 15 back to the same point. Okay, any other questions?
16 (No audible response) 17 CHAIRMAN BOLLWERK: Anything you want to 18 say about Contention 2?
19 MS. SPENCER: Well I think that the only 20 other additional point that the staff would make on 21 Contention 2 is that there have been a number of cases 22 that have litigated whether a applicant can provide 23 all of the federal approvals that are needed for a 24 licensing action and those have always been approvals 25 from other agencies.
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83 1 The other part of that is of course that 2 this is a requirement for the Environmental Report.
3 51.45(d) is a requirement for what the applicant needs 4 to include in the Environmental Report. And it would 5 be somewhat ridiculous to suggest that we need this 6 Applicant to provide us with information on the 7 compliance with something that the NRC was undertaking 8 on its own accord.
9 Also, requests for information are not 10 terribly unusual, and I think it would a quite 11 extensive list if applicants are required to include 12 in their Environmental Report a list of their 13 compliance with the various generic letters, 14 bulletins, information requests, that have been issued 15 over the years in their Environmental Report. It 16 would be quite onerous. But the bottom line is that 17 there are some cases where this particular regulation 18 and a licensees, -- or an applicant's compliance with 19 the regulation was contested and they always dealt 20 with matters coming from other federal agencies. And 21 that is cited in our response.
22 CHAIRMAN BOLLWERK: All right.
23 JUDGE TRIKOUROS: I'm going to ask you the 24 same question I asked the Applicant. The 25 modifications that may come out of this Order would NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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84 1 the Applicant have an obligation to examine the 2 structure, systems and components associated with 3 those modifications with respect to their Aging 4 Management Program?
5 MS. SPENCER: Yes. I believe they would 6 if they make a change, -- I'm just thinking purely of 7 54.21(b), where it states that if they make a 8 modification to their CLB that materially modifies 9 their License Renewal Application they would need to 10 update their application or modify their application.
11 I am not saying that I believe, or have reason to 12 believe that there is some modification that the 13 applicant may need to make to comply with the Order 14 will effect a structure, system or component that is 15 in the scope of license renewal under 54.21.
16 JUDGE TRIKOUROS: Well the Applicant 17 thinks they don't have to, right?
18 (No audible response) 19 JUDGE TRIKOUROS: I had asked you earlier, 20 do you have to modify your Aging Management Program to 21 include the modifications that come out of the EA 22 049, and you said no.
23 MR. LEWIS: Our position, -- I'm not sure 24 how I said it, but we would only have to apply Aging 25 Management Programs to any new or modified components NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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85 1 that fall within the scope of license renewal as 2 defined in Part 54. And there probably aren't going 3 to be any.
4 JUDGE TRIKOUROS: Right, but that goes 5 back to whether they are required for, -- well again, 6 I think it has been interpreted as a design basis, not 7 what you would call a current licensing basis. But 8 the words are current licensing basis, so I'm, --
9 MR. LEWIS: Oh, I'm sorry Judge.
10 JUDGE TRIKOUROS: -- in other words, if a 11 modification is required to meet the design basis of 12 the plant you have to include it in your evaluations 13 under aging management, but if it does not, -- if it 14 is not required, then it is excluded as I understand 15 it. For example, I don't believe that the 16 modifications following 9/11 are included in Aging 17 Management Programs.
18 MR. LEWIS: There is a Rule, 10 CFR 54.4 19 that defines the scope of equipment that is subject to 20 aging management review, and it is safety-related 21 equipment which is defined as that equipment which 22 prevents or mitigates design basis events.
23 JUDGE TRIKOUROS: Right.
24 MR. LEWIS: The non-safety class and the 25 regulatory class of that was EQ. And if we make any NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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86 1 change that changes that scope or adds to that scope, 2 yes we have to. If we add equipment that does not 3 fall within that scope then we would not modify our 4 application.
5 JUDGE TRIKOUROS: Right. And as we 6 discussed earlier, certain things, ATWAS, EQ and I 7 can't remember the name, --
8 MR. LEWIS: Station blackout and fire 9 protection.
10 JUDGE TRIKOUROS: -- station blackout, 11 they have been identified as being required to be 12 design basis events in a sense, but anything post 9/11 13 or post Fukushima has not, as far as I know.
14 MS. SPENCER: I think that's right.
15 JUDGE TRIKOUROS: And I don't know if the 16 post Fukushima modifications will be treated 17 differently from the post 9/11 modifications, but as 18 far as I know license renewal applicants have not 19 looked at Aging Management Programs for post 9/11 20 equipment.
21 MR. LEWIS: And I believe that's correct.
22 MS. SPENCER: Because they would not fall 23 within the scope of structure, systems and components 24 that are reviewed under 54.4. They are in scope under 25 54.4 and/or don't strain-out under 54.21.
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87 1 JUDGE TRIKOUROS: Right. And so is the 2 answer to the question that that would also be true of 3 post Fukushima modifications?
4 MR. LEWIS: Yes. Unless we do something 5 that happens to affect something in the scope the 6 answer would be no.
7 MS. SPENCER: I would agree with that, 8 that at this point we don't believe that there would 9 be. I mean what the requirements are, -- the Order, 10 and then largely, -- I mean they do talk about 11 installed equipment in the first phase of the 12 response, -- first grouping of capabilities, but the 13 others are from portable on-site equipment and 14 portable off-site equipment. And so that type of 15 equipment is probably not going to be within the scope 16 of license renewal.
17 JUDGE TRIKOUROS: Right, I think that's 18 probably true, but I don't know that it will stay true 19 in the course of this, -- if the event is defined as 20 a design basis event, which it currently is not, --
21 MS. SPENCER: And I don't know that it is 22 going to change. I think that's something we don't 23 know, that this event is going to somehow start to be 24 considered a design basis event.
25 JUDGE TRIKOUROS: Right. And right now it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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88 1 is not?
2 MS. SPENCER: Right.
3 JUDGE TRIKOUROS: All right. Perhaps it 4 is not worth pursuing any further at this point. But 5 I do think there is no continuity. I think that it is 6 a discontinuous situation and I do believe that there 7 are efforts to try and change that.
8 MS. SPENCER: That's correct.
9 JUDGE TRIKOUROS: All right.
10 CHAIRMAN BOLLWERK: All right, anything 11 further for the staff that anyone from the Board has?
12 (No audible response) 13 CHAIRMAN BOLLWERK: All right, thank you 14 very much. Let's turn back to Ms. Curran then.
15 MS. CURRAN: Okay. I'd like to go back to 16 the scope of 10 CFR 51.53(c)(2), which it has been 17 argued here only applies to this description of the 18 proposed action that any modifications to the plant or 19 the operation have to be related only to the issue of 20 aging. And the Applicant and the staff reached that 21 conclusion based on the fact that 10 CFR 54.21 is 22 referenced in the regulation.
23 If you read the language of the regulation 24 it is not that narrow. It says, "The report must 25 contain a description of the proposed action, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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89 1 including the applicant's plans to modify the facility 2 or its administrative control procedures as described 3 in accordance with Section 54.21 of this chapter". So 4 the word including modifies plans to modify the 5 facility or its administrative control procedures as 6 described in accordance with Section 54.21. The 7 proposed action does not consist entirely of aging 8 management measures. And in fact, what this suggests 9 is that plans to modify the facility that could affect 10 the environment, regardless of whether they are aging-11 related need to be identified. Because it says this 12 report must describe in detail the modifications 13 directly affecting the environment or affecting plant 14 affluence that affect the environment. So that phrase 15 is "the modifications". It doesn't say the aging-16 related modifications.
17 So we have a fundamental disagreement with 18 the Applicant and the staff, and we don't think their 19 interpretation makes any sense given the Commission's 20 interpretation of NEPA as being much broader than the 21 license renewal regulations for implementation of the 22 Atomic Energy Act.
23 So the whole construct of NEPA review is 24 that we know that NEPA review can be tiered, so if 25 environmental impacts have already been looked at they NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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90 1 don't need to be looked at again. So it is arguable 2 that if the NRC looked at environmental impacts of the 3 licensing basis for Callaway in some impact statement, 4 it does not need to go back and do that all over 5 again. But clearly the measures that are being 6 proposed here, or that will be proposed, have never 7 been analyzed in any Environmental Impact Statement 8 before. That's the critical distinction.
9 JUDGE TRIKOUROS: But does that refer to 10 severe accidents or just events within the design 11 basis? I think that's the distinction.
12 MS. CURRAN: It refers to both. Events 13 or, -- let's just say this, typically the NRC changes 14 its requirements for operating licenses, either 15 through license amendments or rulemakings. And in 16 both cases NEPA is applied. There is a NEPA analysis 17 for both. So here we have the unusual situation that 18 you've got design modifications having been required 19 through an enforcement action, and there has not been 20 a NEPA review. So there is no preceding NEPA review 21 that could be cross-referenced in this license renewal 22 review, which would be typical.
23 For instance with 50.44(h)(h), that's a 24 basic safety requirement. I believe that in a hearing 25 an intervenor could challenge the adequacy of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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91 1 measures that are proposed under the safety 2 regulations. Also, 50.44(h)(h) I am assuming, when it 3 was promulgated there was some kind of a NEPA review 4 that said the purpose of this is to protect the 5 environment and you know we think that this complies 6 with NEPA. There is no comparable NEPA review with 7 respect to these measures. It doesn't exist.
8 An argument was made there's no causal 9 connection between the Enforcement Order and license 10 renewal. The causal connection is that Ameren will be 11 proposing changes to the design that have not received 12 any NEPA review, or even a safety review in terms of 13 a licensing action, or a rulemaking, nothing like 14 that. They are just changes to the design that are 15 un-reviewed. We are asserting that they need to be 16 reviewed in the NEPA review.
17 And that brings up the question of timing.
18 The argument is made well this applies to the current 19 licensing basis now, it is all going to be resolved 20 before license renewal and that license renewal won't 21 happen until after 2024. But as I said before we 22 don't think that Ameren can have it both ways. You 23 can't sort of play around with this timing issue in 24 order to avoid dealing with relevant circumstances.
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92 1 energy supply we're told you must look at the 2 circumstances that exist now. And you must make your 3 prediction about the future after 2024 based on the 4 circumstances that exist now. Why should a different 5 standard apply to this contention? We are being told 6 by the NRC we allow licensees to apply up to twenty 7 years in advance and if an intervenor comes in well, 8 it's too bad if you have difficulty predicting out 9 twenty years, you must do the best you can with the 10 circumstances that exist now. That is what Missouri 11 Coalition is doing now. And we don't think it is fair 12 to be able to say for purposes of excluding us that 13 these issues are not relevant now, because they've 14 come up in some other different context. They are 15 relevant now because they could affect the renewed 16 operation of Callaway and the License Renewal 17 Application is pending. It's a tangible effect on the 18 impacts of operation.
19 An argument was made that the only issues 20 that Ameren has to address are Category II issues.
21 And that severe accidents, -- the significance of 22 severe accidents has already been addressed in the 23 generic EIS. Well two responses to that. The generic 24 EIS says that, -- it does not say anything about 25 alternatives being Category I issues. The requirement NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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93 1 for an alternatives analysis is still relevant to 2 individual licensing proceedings.
3 And the second one just flew out of my 4 mind. Oh SAMA(s), they are an example of alternatives 5 analysis. Now this is not, -- as I was saying before, 6 this is not a classic SAMA because the NRC is 7 requiring these alternatives. But is an, -- SAMA(s) 8 are clearly designated as Category II. The issue of 9 alternatives is not ruled out as Category I, so this 10 discussion is appropriate in the Environmental Impact 11 Statement.
12 JUDGE TRIKOUROS: And if the SEIS does not 13 include this, you have an opportunity to say that, or 14 mention it. To file a Contention, for that matter, 15 right?
16 MS. CURRAN: Well if we got to that point.
17 JUDGE TRIKOUROS: At that time?
18 MS. CURRAN: If we got to that point, yes 19 we would, if we don't get a Contention admitted here.
20 But we probably do, --
21 JUDGE TRIKOUROS: But that does not 22 necessarily apply at this time, right?
23 MS. CURRAN: Perhaps not. Okay, another 24 question is we think that the question of, -- these 25 mitigation measures could be significant. They could NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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94 1 cost a lot of money. NEPA requires that those kinds 2 of considerations be included in the license renewal 3 decision. So if we are not allowed to integrate this 4 analysis into the EIS for Callaway license renewal, 5 then we won't get a good and well informed decision 6 about license renewal that takes into account maybe 7 the Fukushima-related back-fits get to be so expensive 8 that this particular energy alternative does not make 9 sense. Our purpose here is to ensure that all these 10 considerations come into play in the license renewal 11 decision because they are relevant.
12 I believe that counsel for the NRC staff 13 made a distinction between the period after 3 Mile 14 Island when there were a number of license 15 applications under review by the Commission. And now 16 when most licenses have been issued I think the 17 Commission has not really addressed the issue yet.
18 The Commission did say in CLI1105 that it 19 was appropriate to raise Fukushima-related issues in 20 individual licensing cases, which we have done. But 21 there has been, -- there certainly has been no generic 22 policy pronouncement from the Commission about how 23 NEPA applies to licensing decisions.
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95 1 licensing decisions. They both involve the same 2 question as to how changing requirements are going to 3 be brought to bear on licensing decisions. That's the 4 common denominator for new licenses and license 5 renewal is that NEPA pushes an agency to make sure 6 that all these issues that might otherwise be 7 extraneous and not get considered, be focused in on 8 and integrated into the analysis of how significant 9 are the impacts of what we are about to do, and are 10 there better ways, cost-effective ways, to mitigate or 11 avoid those impacts. The whole purpose of NEPA is to 12 ensure that when a decision like this is being made 13 that all the pragmatic considerations are brought to 14 bear. And that is I think what Ameren and the staff 15 are trying to avoid here.
16 I think that concludes my argument.
17 CHAIRMAN BOLLWERK: All right, let me just 18 see if there are any questions.
19 MR. LEWIS: Judge Bollwerk, could I 20 respond very quickly just to one point?
21 CHAIRMAN BOLLWERK: Yes, but Ms. Curran 22 gets the last word, always.
23 MR. LEWIS: That's fine. There was an 24 assertion that we needed to analyze these impacts 25 because they might affect the cost of the project, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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96 1 which has to be then considered under NEPA. And I 2 just want to point out that under the NRC rules in 3 51.53(c)(2), 51.71(d) and 51.95(c)(2), the cost of 4 license renewal is not an issue. The Commission 5 specifically said that the economic cost and benefits 6 of the proposed action in the case of license renewal 7 does not need to be addressed. And that's because of 8 the way it defined the proposed action.
9 MS. CURRAN: I'm sorry I didn't hear; that 10 is because of, --
11 MR. LEWIS: The matter in which the 12 Commission defined the proposed action as being one 13 designed to preserve the option of continued operation 14 for energy decision-makers.
15 MS. CURRAN: Well as we said in our reply 16 that was filed recently, the Commission has not 17 eliminated consideration of alternatives. And so it 18 seems to us that it is a part of considering 19 alternatives to compare the cost of alternatives with 20 the cost of the proposed action.
21 CHAIRMAN BOLLWERK: All right, anything 22 further that anyone has then on Contentions 1 or 2?
23 JUDGE TRIKOUROS: Next Contention.
24 CHAIRMAN BOLLWERK: All right, let's go 25 ahead and move to Contention 3. Just as a scheduling NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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97 1 matter, my expectation is we will be able to finish 2 before we take a lunch break. So we are going to try 3 to get this done, and then we will be done, but we'll 4 see how that goes along.
5 Again, for the purposes of the folks who 6 may not have been, -- had access to the record, 7 Contention 3 states that, -- it is entitled, 8 "Inadequate Discussion of Wind Energy Alternative".
9 It states that the Environmental Report is inadequate 10 to satisfy NEPA or 10 CFR Section 51.53(c)(2), because 11 it dismisses and refuses to consider the relative 12 merits of the reasonable energy alternative of wind 13 energy operated in the Midwest Independent 14 Transmission System Operator. Is that pronounced MESO 15 or is it M-I-S-O? How is it normally pronounced?
16 JUDGE TRIKOUROS: MISO.
17 MS. CURRAN: MISO.
18 CHAIRMAN BOLLWERK: MISO? Okay, MISO 19 Grid. Wind energy operating in the MISO Grid warrants 20 serious consideration as an alternative because it is 21 currently available and sufficient to entirely replace 22 the energy to be generated by Callaway during the 23 license renewal term. Wind energy also has the 24 relative benefits that it is less dangerous than the 25 renewed operation of Callaway, depends on a renewable NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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98 1 energy source and would save millions of gallons of 2 water now used by Callaway every day.
3 All right, we will turn to the Petitioner.
4 MS. CURRAN: Thank you. I think what I 5 would like to focus on is going through the Board's 6 questions.
7 CHAIRMAN BOLLWERK: All right.
8 MS. CURRAN: This is very technical 9 material and I am going to be consulting Dr. Makhijani 10 as I go along, and that may be a little bit 11 cumbersome, but worth the effort.
12 CHAIRMAN BOLLWERK: All right, thank you.
13 MS. CURRAN: Okay, so the first question 14 is, is base load defined by the MISO? If so, how is 15 it defined?
16 We were not able to find a formal 17 definition of the term base load power on the MISO 18 website, but we did look at some other definitions of 19 base load power. The North American Electrically 20 Liability Council defines base load as the minimum 21 amount of electric power delivered or required over a 22 given period at a constant rate. And would you like 23 me to provide a reference for that?
24 CHAIRMAN BOLLWERK: Yeah, please.
25 MS. CURRAN: Okay.
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99 1 CHAIRMAN BOLLWERK: That's from the NERC?
2 MS. CURRAN: That is a glossary of terms 3 published by NERC in 2008. Actually I have a long web 4 address that, -- I wonder if it would be a good idea 5 if I just, -- if we cite to references like this would 6 it be good to just send them to you in a supplemental 7 memorandum?
8 CHAIRMAN BOLLWERK: If no one has an 9 objection to that, we can certainly do that, it 10 probably would speed things up.
11 JUDGE TRIKOUROS: Yeah, if it's citations.
12 CHAIRMAN BOLLWERK: We're talking 13 citations here, we are not talking argument I don't 14 think so.
15 MS. CURRAN: Yeah.
16 JUDGE FROEHLICH: Why don't we do it that 17 way?
18 MS. CURRAN: Okay, great we'll do that.
19 CHAIRMAN BOLLWERK: We'll set a time for 20 that after we hear exactly what is going to be 21 involved, because there may be some others that come 22 up, so all right.
23 MS. CURRAN: Okay, so base load is a 24 characteristic of a power delivery or utilization 25 system. In terms of generation its definition can be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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100 1 applied to a single generating device or a combination 2 of generating devices so long as the predetermined 3 amount of power is supplied.
4 We also found a definition of base load or 5 a discussion of base load by John Wellinghoff 6 (phonetic), the Chairman of the Federal Energy 7 Regulatory Commission. In 2009 he said "I think base 8 load capacity is going to become an inaccurisum 9 (phonetic). Base load capacity really used to only 10 mean in an economic dispatch, which you dispatch 11 first, what would be the cheapest thing to do." Well 12 ultimately wind is going to be the cheapest thing to 13 do, so you will dispatch that first. And he said that 14 in an article that was published in 2009 and we will 15 send you the reference for that. And we will probably 16 get back to the question of what is base load further 17 along.
18 The next question is does the MISO assign 19 a capacity value for wind? If so, what is the 20 significance of this feature?
21 MISO does assign a capacity value to wind 22 generation. The capacity value is a fraction of the 23 installed nameplate generation capacity. This 24 fraction depends on the fraction of generation 25 supplied by wind. The capacity value assigned by MISO NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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101 1 to wind in 2012 was just under 15 percent. For wind 2 penetration of 30 percent MISO would assign a capacity 3 value of 10 percent. This is discussed in Dr.
4 Makhijani's Declaration at paragraph 4.5, where 5 reference to a MISO publication from 2012 is also 6 provided.
7 The significance of this figure is that a 8 certain fraction of installed wind capacity can be 9 attached to a value for power dispatch purposes. The 10 matter has now advanced beyond attaching an overall 11 capacity value to wind since wind is now considered a 12 dispatchable intermittent resource by MISO. And wind 13 farms that have the necessary equipment can receive 14 and respond to dispatch signals from the grid 15 operator.
16 The next question the Board asked is to 17 what extent is there currently a base load wind in the 18 MISO and/or Ameren service areas?
19 The capacity value attached to wind in the 20 MISO area is currently just under 15 percent. As we 21 will explain, MISO would attach a varying value of the 22 amount of power to be dispatched by wind resources 23 designated as dispatchable intermittent resources on 24 the basis of five minute forecasts of wind. This in 25 effect, attaches a capacity value to wind resources NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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102 1 every five minutes. The term base load wind is not 2 used by MISO or Ameren as far as we are aware.
3 MISO has designated wind as a dispatchable 4 resource even though it is intermittent. The Federal 5 Energy Regulatory Commission has given approval to 6 this approach for wind installations. And that is in 7 a FERC decision from 2011 that we will send you a 8 reference for. This approach makes wind resources 9 similar to more traditional dispatchable resources 10 such as fossil fuel, hydro or nuclear power plants, 11 though traditional resources are dispatched on an 12 hourly basis, and wind would be dispatched based on 13 five minute forecasts.
14 One of the key characteristics of a power 15 plant that feeds power into the grid, whether the 16 source of energy is wind or nuclear or any other 17 source, is whether its output is dispatchable from a 18 queue of resources set up by the grid operator. Wind 19 is now explicitly designated as a dispatchable 20 resource by MISO and accepted by the FERC. Generally 21 new wind resources will be required to have equipment 22 that can receive and respond to dispatch signals from 23 the grid operator. Wind farm output forecasts will be 24 made and updated frequently. Therefore the 25 alternative to Callaway generation of new wind farms NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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103 1 that are designated as dispatchable intermittent 2 resources would work similarly to traditional 3 dispatchable resources, with some technical 4 differences such as the requirement for wind farm 5 output forecasts to be made and updated every five 6 minutes.
7 The Board also asked what is the capacity 8 factor assigned to the Callaway facility for MISO 9 purposes? What is the actual capacity factor for the 10 Callaway Plant for each of the past ten years?
11 This question requires some background 12 and we would like to put the answer in a context. For 13 wind resources designated as dispatchable intermittent 14 resources MISO would assign a dispatch value to wind 15 every five minutes. This is in effect a signing and 16 operational capacity factor for that period. Of 17 course since wind varies this value is updated every 18 five minutes and for purposes of longer term planning 19 MISO assigns a quote, "must run fracture," from among 20 a set of pre-designated base load units.
21 For instance, in the context of planning 22 for renewable integration into the eastern 23 interconnect, which includes several grid operators, 24 MISO and other grid operators assign a hundred percent 25 must run fraction to nuclear, 25 percent to other NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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104 1 quote, "base load steam," and other fractions to other 2 fossil fuel plants. And MISO explains this as 3 follows; this is a quotation from MISO's Joint 4 Coordinated System Plan from 2008, Volume 1 at page 5 38. And again, we will send you a reference, but I'll 6 read you the quotation. "All base load steam and 7 nuclear units are set to must run units. And all 8 other units are not must run. If a generator is 9 designated in the database as a must run unit the 10 minimal segment of the generator will be dispatched at 11 all times regardless of its placement in the energy 12 bid order. Only the minimum segment of the generator 13 will be dispatched at all times. The upper segment 14 will still be dispatched according to its bid costs."
15 So that gives you some context for how this dispatch 16 system works.
17 These must run dispatch fractions are made 18 based on the characteristics of the power plants that 19 are currently on the grid. For instance, nuclear has 20 a hundred percent must run fraction because it is very 21 undesirable to vary the output at nuclear power plants 22 over periods of hours or days. The hundred percent 23 must run fraction is evidently not on the time scale 24 of years to decades, since Callaway, like other 25 nuclear units, and in deed all generating units, has NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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105 1 planned and unplanned outages and does not run at a 2 hundred percent capacity factor year in, year out.
3 The upper segment that I mentioned is the 4 fraction of the resource that is not designated as 5 must run. For nuclear power reactors this fraction is 6 zero, since nuclear power plants are scheduled to be 7 dispatched at full capacity or shut down. Nuclear is 8 basically an all or nothing resource. So that is very 9 different from wind.
10 Okay, there is a question, -- the MISO 11 Tariff and the MISO Business Practices Manual describe 12 the resources that move across the grid. Among the 13 generation resources discussed is a category called 14 Dispatchable Intermittent Resources, or DIR(s). Is 15 wind energy treated as a DIR by the MISO? And the 16 answer is yes.
17 The MISO Tariff document's definition of 18 dispatchable intermittent resources is as follows: "A 19 generation resource whose economic maximum dispatch is 20 dependent on forecast-driven fuel availability". And 21 that is from the MISO 2012 Tariff, paragraph 1.162(a),
22 the PDF at page 71. This definition was effective as 23 of March 1, 2011.
24 In the case of wind energy the fuel is of 25 course wind, when it is available above the threshold NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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106 1 that initiates power generation. Since the 2 transmission of wind energy across the MISO system 3 involves interstate transmission the FERC has 4 jurisdiction over the designation of the resources.
5 MISO filed an application with FERC in November 2010 6 explicitly requesting the designation of intermittent 7 renewable energy resources, and particularly wind 8 generation resources, as dispatchable intermittent 9 resources. And as we noted, the FERC accepted this 10 request, but rejected it without prejudice for non-11 wind resources; that this is not applicable to wind.
12 The next question pertains to the Seabrook 13 decision, where the Commission stated that the 14 standard is that we must show that the alternatives 15 capable of providing technically feasible and 16 commercially viable base load power during the renewal 17 period. And the Board asked well how have you showed 18 that this is commercially viable?
19 We think we've showed that by showing that 20 wind energy is now an established part of the MISO 21 Grid. And it is a standard element of the energy 22 portfolio that is offered on the MISO Grid. We 23 understood the purpose of the Commission's decision in 24 Seabrook was to ensure that alternatives that are real 25 and viable in present time are discussed, and not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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107 1 hypothesized far into the future. Well we think we 2 have done a very thorough job of documenting for you 3 that wind is commercially viable, because it is being 4 used. If it weren't commercially viable we don't 5 think it would be used.
6 And I just want to add that there are 7 10,000 megawatts of wind on the MISO Grid. This is a 8 well established energy source that could more than 9 compensate, -- it has more than the amount of power 10 generation to substitute for the Callaway Nuclear 11 Plant.
12 And I do want to highlight the fact that 13 we think that the question to some degree, 14 misconstrues what Missouri Coalition is asserting in 15 the Contention. We are not asserting that wind all by 16 itself can substitute for Callaway, any more than 17 Callaway all by itself could supply all the 18 electricity needs of its service area, because 19 sometimes Callaway goes down. Sometimes there are 20 planned outages, sometimes there are unplanned 21 outages. They are different in the sense that when 22 there is an outage at Callaway it is for a period of 23 days or months. When wind is not available it is for 24 a period of hours. But it is still the same in the 25 sense that neither one of these energy sources is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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108 1 available all the time and so, one has to look at both 2 in the context of the grid where they operate. And 3 one has to look at them as dispatchable sources of 4 energy that are part of the whole energy portfolio.
5 As I've discussed, wind is now designated 6 as a dispatchable resource by MISO, and as such, it 7 will be treated similarly to other dispatchable energy 8 sources like fossil fuel power plants. In this 9 context designations of base load, intermediate load 10 and peak load for generating units are useful only as 11 indicators of where in the loading order a particular 12 generation unit fits. In the past the must run 13 fraction of units designated as base load would be 14 first in the loading order and nuclear had a hundred 15 percent fraction since it is an inflexible resource.
16 But this percentage is not indicative of capacity 17 factor, but of how dispatch is organized when the unit 18 is available. With the designation of wind as a 19 dispatchable resource the loading order can be changed 20 and wind can be dispatched in preference to other 21 resources. The likelihood that nuclear may dispatch 22 to its full capacity in preference to all other 23 generating units feeding into the transmission grid is 24 not an indication of whether it's base load, but 25 rather due to its inflexibility. It is difficult and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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109 1 costly to vary the power level of a commercial power 2 reactor frequently. It also takes a significant 3 amount of time to start up coal and nuclear units once 4 they are shut down.
5 And I just would like to conclude by 6 saying that as Dr. Makhijani showed in his Declaration 7 in Section 4, it is technically feasible for wind to 8 reasonably and reliably replace all of the generation 9 now fed into the grid by Callaway. There is no 10 question that wind provides a commercially feasible 11 electricity generation resource. Installed capacity 12 of wind power increased by more than 26,000 megawatts 13 between 2006 and 2010 in the United States, as 14 reported by the EIA in 2011.
15 MISO has designated wind as a dispatchable 16 resource even though it is intermittent. Hence, wind 17 power can be considered as a technically and 18 commercially feasible alternative to Callaway, and 19 should therefore be considered in Ameren's 20 Environmental Report.
21 As part of that consideration Ameren 22 should be required to assess the specific economics 23 and environmental impacts of this alternative, and 24 also compare to those of relicensing Callaway. These 25 costs and impacts should include an assessment of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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110 1 risks, costs and impacts of planned and unplanned 2 outages based on the best available information.
3 JUDGE TRIKOUROS: But let me ask you, you 4 just made a statement that there are 10,000 megawatts 5 of wind on the MISO Grid, and you said that is more 6 than sufficient to replace Callaway?
7 MS. CURRAN: That's right.
8 JUDGE TRIKOUROS: But right now there is 9 Callaway and there is 10,000 megawatts of wind. So 10 are you telling me that if Callaway disappeared 11 tomorrow there would be no increase in spending 12 reserves, there would be no additional plants started 13 up, there would be no power purchase from other grids, 14 is that what you're saying, that the wind would just 15 do that? I mean that's kind of critical I think.
16 MS. CURRAN: Judge Trikouros, we are 17 proposing that wind generation plants would be built 18 to replace the Callaway generation. But what we 19 needed to show for this Contention is that wind is a 20 going concern; that there already is plenty, -- there 21 is plenty of wind generation already; that this is not 22 a huge endeavor to create more wind generation. It 23 exists in a large quantity and it is growing.
24 JUDGE FROEHLICH: Before we get into the 25 base load requirement that we read about in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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111 1 Seabrook and Davis-Besse case, let me just follow up 2 on Judge Trikouros' question with something that had 3 been bothering me. As I read through the 4 Environmental Report in Section 7.2, page 7 of 38, 5 Ameren discusses the regulatory framework in which it 6 works in retail and they operate within the State of 7 Missouri. And they state that they supply all the 8 end-use customers in their franchise service area with 9 bundled generation transmission and distribution 10 service. Therefore they look in their Environmental 11 Report to alternatives that are in their service area.
12 And I think for the coal plant or a new gas plant they 13 even look at it in the property that they currently 14 own. Are you saying that they should be studying the 15 purchase of 11,000 megawatts from elsewhere, on the 16 MISO Grid? Are you suggesting that they would be 17 building 11,000 megawatts in or near their service 18 area? Or just taking it from the grid as I think 19 Judge Trikouros was asking?
20 MS. CURRAN: There is no restriction as 21 to where Ameren gets its power from. Ameren typically 22 buys generation from the MISO Grid, -- Ameren has wind 23 energy from outside of Missouri that it purchases. It 24 is in Dr. Makhijani's Declaration, and I'll get you a 25 paragraph number.
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112 1 JUDGE FROEHLICH: I realize that they 2 purchase from time to time wind energy and arrange its 3 transportation across the grid. But you're not 4 suggesting that there's transportation capacity on the 5 grid to take 11,000 megawatts from Minnesota and send 6 it across the grid to serve St. Louis, are you?
7 MS. CURRAN: It's not 11,000 megawatts it 8 is between 2,300 and 3,000 megawatts, to begin with.
9 JUDGE FROEHLICH: Right. Okay, and the 10 current transmission upgrades to attach wind I think 11 they are queued up in the neighborhood of 27,000 units 12 where there is no transportation capacity available?
13 MS. CURRAN: MISO has an extensive program 14 to upgrade transmission over the next fifteen years.
15 And what we are asking for here is a consideration of 16 the alternative. We have nothing in the Environmental 17 Report. We are trying to get across the threshold to 18 get a discussion of this. We would like to see the 19 discussion of if there are transmission issues let us 20 see it discussed. But to completely throw out this 21 alternative as beyond consideration we think was 22 unreasonable.
23 JUDGE FROEHLICH: Well how about the, --
24 I mean I looked for a discussion in the Environmental 25 Report on wind and in Section 7.2 wind is discussed NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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113 1 and some of the concerns I guess that the Applicant 2 had with replacing Callaway with wind are discussed.
3 MS. CURRAN: Well what it says in the 4 Environmental Report, -- this is on page 6 of Section 5 7.2.1, is that Ameren has considered evaluating wind 6 or solar, in combination with fossil fuel generation 7 as alternatives. However because of the intermittent 8 nature of wind and solar power in the region such 9 combinations would require building fossil fuel plants 10 with a full capacity.
11 So in our view the wind option was never 12 considered. It was never, -- and it was presented in 13 a way that is misleading. We think that Ameren could 14 build enough wind generation to fully substitute for 15 Callaway and could sell that wind generation. And it 16 is not a question of will we have to have a few 17 windmills and a bunch of fossil fuel plants to 18 substitute when the windmills aren't working, that's 19 not how it works. You build enough capacity so that 20 you could build, -- Ameren could build more than the 21 amount that is generated by Callaway today in terms of 22 wind, and could sell that wind generation, and then 23 just purchase enough fossil fuel from gas plants in 24 order to cover the periods when the wind is not 25 blowing. It's not a question of, -- the concept that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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114 1 is presented by Ameren is since wind does not blow all 2 the time we absolutely have to build fossil fuel 3 plants. That is not correct.
4 We have shown that there is adequate 5 capacity in MISO that fossil fuel plants don't have to 6 be built, because to construct, -- if enough windmills 7 were constructed then there is wind generation that 8 can be sold and that offsets, -- it's a different kind 9 of a system. It's a conceptually different thing than 10 was looked at in the past.
11 JUDGE TRIKOUROS: Let me ask the question 12 this way, I think the Seabrook decision was saying 13 that the question of whether or not a sufficient 14 amount of wind can be built to replace Callaway in the 15 next ten years in such a manner that it is base load, 16 -- that it is base load replaceable or that it 17 replaces base load, is not something that people can 18 answer right now. I mean it might and it might now.
19 I don't think there is a definitive answer.
20 Now this idea that wind could be built 21 anywhere within an eight state region, or whatever the 22 number of states are, and that that in fact would 23 replace Callaway, is not an idea, -- from what I've 24 seen it is not an idea that is guaranteed of success.
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115 1 base load generation. Let me not say base load, let 2 me say coal and nuclear continuous type generation.
3 And I'm assuming there are periods of time 4 statistically, when there is no wind. Even in a five 5 state area there probably are statistically over five 6 minute intervals, periods of five minutes where there 7 just simply is no wind in five states. Now I have not 8 looked at any data. We are not here to do a merit's 9 evaluation, so it's a little bit difficult for us.
10 But the different documents that we have been pointed 11 to on the internet; and there are many references in 12 Dr. Makhijani's Declaration, show that there are 13 uncertainties. Different people disagree as to even 14 how to calculate the benefits or lack of benefits of 15 wind, in terms of how they take into account spending 16 reserves and just a variety of different variables 17 that seem to be treated differently by different 18 people, depending on their let me just say point of 19 view or sort of what they want the outcome to be. And 20 we all do that, I understand that. I mean clearly you 21 are trying to make an argument. But is there 22 certainty that Callaway could be replaced in that 23 period of time? We're talking about building, -- that 24 Ameren would have to arrange for wind to be built in 25 multiple states, and you know I don't know hard or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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116 1 easy it is for that to happen. I do know that it 2 would be easier for them to do it within their own 3 area, but they've made arguments in their answer that 4 their own area is not a very good wind area in terms 5 of, -- you know I think there is a seven level 6 scaling, is not a very good wind area.
7 So all of that just brings into question 8 whether or not there is certainty that in ten years 9 one could in fact do this with very high probability?
10 And I think that's where we are.
11 MS. CURRAN: In answer to your question 12 Judge Trikouros, we don't think that there is 13 certainty about anything in this case. There is no 14 certainty that Callaway is going to be operating in 15 twenty years. There is no certainty about what the 16 characteristics of the MISO Grid and wind power are 17 going to be. But we think we've shown a high 18 probability, which is, -- under NEPA the rule is 19 reasonableness. We've shown it is reasonable to 20 predict that wind is going to be a significant 21 commercially viable, feasible source of electricity in 22 this area in the future. We don't have to show 23 certainty any more than Ameren has to show it.
24 We're talking about an additional 2,500 25 megawatts of generation. This study of the Eastern NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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117 1 Interconnect done by the grid operators, -- all of the 2 grid operators in the east coast showed that it would 3 be possible to build almost a hundred times that much 4 wind generation in the next fifteen years.
5 JUDGE TRIKOUROS: I understand, but that 6 is just such a small piece of this story, at least 7 from what I can see so far. You know you could build 8 a hundred, -- a capacity sufficient for 100 percent of 9 MISO needs. One could probably say that right now.
10 But would that be a functional grid that would have 11 100 percent wind? And I think the answer to that is 12 clearly no, that you cannot have a grid that is 100 13 percent wind.
14 MS. CURRAN: But we're not arguing that.
15 JUDGE TRIKOUROS: No, I understand. I'm 16 trying to ask the question of how this relates, -- I'm 17 trying to understand how this relates to the Seabrook 18 decision, because you know we are clearly up against 19 that. For example, when I looked at Dr. Makhijani's 20 Declaration he presented, -- I think it's Section, --
21 it's in Section 3, a few paragraphs in Section 3, one 22 of them I know is 3.13. There were a number of 23 outages discussed and I looked at all of them. They 24 added up to 111 days of, -- roughly 111 days of 25 unplanned outages over a 28 year period, so that's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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118 1 four days a year. That's not bad. I mean four days 2 a year for 28 years on average is not bad. And that's 3 what people mean about base load. But if I look at a 4 wind resource I might see, -- you know I might see, --
5 well I would see substantially, -- maybe 200 days a 6 year, so how do we relate these things, that's the 7 question?
8 MS. CURRAN: Well it's complicated. It is 9 one of the reasons, -- we are asking for one thing, 10 that, -- for equivalent consideration of nuclear and 11 wind, in the sense that when there is not capacity for 12 one source, to look at what are the resources that 13 could make up for that in the grid. That's done now 14 with relation to Callaway. And we're saying we want 15 that to be done too with relation to wind, and not 16 just rule out wind because it's intermittent.
17 For instance, -- okay, the nuclear plant 18 goes down on an average of four days a year, but that 19 is a very inflexible situation. When it's down, it's 20 down. And you could consider that a lengthy period, 21 four days out of a year, in comparison to periods of 22 minutes for wind. But we want to see an analysis of 23 how those things compare, and not just an assumption 24 that Callaway is always generating electricity and we 25 do not need to look at it in the grid, whereas wind is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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119 1 intermittent, we can't rely on wind.
2 We also think that the past 28 years of 3 nuclear plant operation is not necessarily indicative 4 of what is going to happen in the next 28 years, 5 because of recent prolonged outages worldwide, which 6 are described in Dr. Makhijani's Declaration. I don't 7 think we can say right now with certainty that this 8 kind of thing is not going to happen at Callaway.
9 JUDGE TRIKOUROS: Yes, I agree. And I do 10 understand that what you are asking for is that wind 11 be given a more full analysis. Not that we shut down 12 Callaway and replace it with wind, but that we at 13 least do the full analysis of wind as if in the 14 same, -- in other words a Section 8 analysis of wind; 15 not dismissing it in Section 7. I believe that that's 16 what you're talking about?
17 MS. CURRAN: Yeah. We would call it a 18 fair shot.
19 JUDGE TRIKOUROS: Right.
20 MS. CURRAN: Just a fair analysis that 21 really takes a look. Because this NRC permit is 22 something, -- it just isn't an okay, it involves a 23 subsidy in the sense of if Ameren chooses to go 24 forward with the operation under a renewed license it 25 gets the protection of the Price-Anderson Act, limited NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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120 1 liability. This confers a subsidy on Ameren to go 2 ahead with this one alternative. And we are saying 3 there are other alternatives that would, -- we think 4 would be better; would not involve safety risks; would 5 not involve generation of spent fuel that the NRC 6 after how many years still does not know where to put 7 it. It is still piling up at the Callaway site in the 8 spent fuel pool. We think in light of those things it 9 is really important to take the alternatives 10 seriously. And here a demonstratively viable 11 alternative has been dismissed out of hand.
12 Basically we are asking for an apples to 13 apples fair shot; that the Environmental Report does 14 not talk about the outages at Callaway, or how 15 Callaway operates in a grid to compensate for those 16 outages. If it did, then we think it would increase 17 the attractiveness of looking at other ways of 18 operating in the grid that could also accomplish the 19 same end. I mean really in the end the purpose is to 20 generate a steady source of electricity to Ameren's 21 customers, and there is other ways to do it.
22 JUDGE TRIKOUROS: Right and I understand.
23 And you know we would have to see clearly how this is 24 different from the Seabrook decision.
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121 1 because I would like to make some distinctions between 2 this and the Seabrook Case.
3 Our understanding is the Seabrook Case was 4 talking about a wind farm or a series of 5 interconnected wind farms. It was not talking about 6 Seabrook operating in a grid. It did not try to make 7 a comparison of the Seabrook Nuclear Plant with its 8 outages operating in a grid, to a wind alternative 9 with its types of outages operating in a grid. It was 10 simply the question of whether these interconnected 11 wind farms, plus I think there was a storage 12 component, could equate for base load power to be 13 provided by Seabrook. And we have tried to present an 14 alternative analysis that is more sophisticated than 15 that frankly, that talks about how it really works in 16 the grid.
17 JUDGE TRIKOUROS: Well I think we need, --
18 and we will ask the Applicant to discuss this question 19 of storage. I mean clearly the Seabrook decision 20 rested to some extent on the fact that there were 21 really no storage options that were viable to come on 22 line in a short period of time. And so that was 23 certainly important to the Seabrook decision, and we 24 recognize that.
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122 1 understand it, rather than fifteen or sixteen 2 interconnected wind farms relatively locally, you are 3 talking about the entire grid. And you are arguing 4 storage is not required as a result of that. I 5 believe that's what you're saying?
6 MS. CURRAN: That's correct. Distinct 7 from the Seabrook Case we are also arguing that there 8 are resources in the grid that can make up for the 9 variability of wind.
10 JUDGE TRIKOUROS: Okay.
11 CHAIRMAN BOLLWERK: Anything Judge?
12 JUDGE FROEHLICH: Although they did not 13 discuss the fact that Seabrook is connected to a grid, 14 -- is a member of an outer TO, the backup I guess 15 support that a grid would offer applied in Seabrook 16 exactly the same as it would in this case. Isn't that 17 so?
18 MS. CURRAN: In the Seabrook Case there 19 was not a comparison of Seabrook operating in the grid 20 with its outages to the alternative wind operating in 21 the grid with its outages. We think we've advanced 22 the analysis beyond what was done in the Seabrook 23 Case.
24 JUDGE FROEHLICH: But in Seabrook I think 25 what the Commission relied upon, or at least the catch NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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123 1 phrase that we take from Seabrook, as well as the 2 Davis-Besse cases, is that the alternatives to be 3 considered have to be considered as base load 4 resources. And then based on the 7th Circuit decision 5 base load power is defined as, -- base load power 6 generates energy intended to continuously produce 7 electricity at or near full capacity with high 8 availability. And I guess that's the test we have to 9 apply to the alternative that Dr. Makhijani puts 10 forward and you suggest in your Contention, is that 11 right?
12 MS. CURRAN: We believe that no single 13 facility could meet that test, whether it's a nuclear 14 plant or a wind facility. So the question of 15 what, -- as we were talking about what is the 16 definition of base load; the consistent supply of 17 electricity, then we believe that wind operating in 18 the grid satisfies that requirement. So this whole 19 idea that it has to be a single facility, that seems 20 to us to be an artificial construct that is not, -- it 21 is not a practical interpretation of the term base 22 load.
23 JUDGE FROEHLICH: But in Seabrook it was 24 an interconnected series of wind facilities, just like 25 you're saying here, an interconnected, -- you know by NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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124 1 the grid series of wind production.
2 MS. CURRAN: I think inSeabrook the basic 3 thrust was that wind, -- that if you had enough wind 4 farms they would substitute and you know provide the 5 consistent, -- and combine the storage, that that 6 would provide consistent electricity.
7 Our case is different. Our case says that 8 wind, -- you can't rely on wind all the time, because 9 there are times when wind is not available. But if 10 you have enough generation of wind then at times when 11 there is more wind generation than you need, or than 12 Ameren needs, Ameren can sell it and that would back-13 off the need for gas generation. And then when there 14 are times with Ameren needs that capacity because the 15 wind is not blowing, then the gas would be available.
16 So that there would be no net increase of reliance on 17 gas because the, -- you know because you are buying 18 and selling this thing, -- this energy constantly that 19 it would even out. I'm sorry is that helpful?
20 JUDGE FROEHLICH: Well I guess it goes 21 just a step further in that the Seabrook decision 22 emphasizes the fact that base load power is what we 23 are looking to substitute. Base load power, how else 24 can you come up with this base load power? And on the 25 MISO Grid and any other grids, wind energy is a DIR.
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125 1 It's a subgroup of the available resources to supply 2 the grid. But it's different, that is why it is 3 treated in the five minute increments twelve times an 4 hour4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br /> as opposed to the hour ahead market. But what it 5 does not cover being a DIR, and I think Judge 6 Trikouros approached this, is it doesn't cover things 7 like the ancillary services, the spinning reserves, 8 and wind would not qualify for that component that 9 base load resources supply to the grid. Is that 10 correct?
11 MS. CURRAN: That's why we're saying that 12 nuclear never provides spinning reserves. So you know 13 we are asking give it a fair comparison and don't 14 assume that nuclear provides things that it doesn't.
15 Nuclear is a completely inflexible resource, it's all 16 or nothing. We are asking for a candid assessment of 17 that in comparison with this wind alternative and the 18 grid.
19 JUDGE FROEHLICH: In fact, I think you're 20 asking for a very, very flexible resource to 21 substitute for this inflexible resource, is that 22 correct?
23 MS. CURRAN: Yes. And those flexible 24 resources exist on the grid and we've said what they 25 are. Thank you.
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126 1 JUDGE FROEHLICH: Thank you.
2 CHAIRMAN BOLLWERK: All right, let's turn 3 to the Applicant.
4 MR. LEWIS: Let me start with the first 5 question you asked, because I don't believe I heard 6 the Coalition answer it and it is probably the most 7 important question. That question was with reference 8 to the Seabrook and the Seabrook's instruction that 9 environmental impact need only discuss those 10 alternatives that will bring about the ends of the 11 proposed action, what does that mean?
12 The case law is pretty clear, and it is 13 cited in both our Answer and the staff's Answer, that 14 what that means is that the Agency should respect the 15 Applicant's goals and the Applicant's preferences.
16 And in fact, if you go to the City of Burlington Case 17 on which the Commission's precedent is based that case 18 says that Congress expected agencies to consider the 19 applicant's wants. And Congress did not expect 20 agencies to determine for the applicant what the goal 21 of the applicant's proposed action should be.
22 This is a very important principle because 23 it means on a private proposal here the applicant is 24 defining why he is seeking federal approval, and 25 identifying what he is trying to accomplish. And that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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127 1 is entitled to respect. And here, what we basically 2 have is a Contention that says ignore what Ameren 3 wants and let's look at a completely different 4 alternative that does not meet those goals.
5 What Ameren's Environmental Report says is 6 that our proposed action, -- this is in Section 3 of 7 the ER, is intended to provide or assure a source of 8 base load power. And the only alternatives that we 9 believe are reasonable are those that provide that 10 base load power. And I'll get into what does base 11 load power mean in awhile. But we have indicated 12 that, -- and we do, -- our view is completely in line 13 with the Seabrook instruction that base load power 14 refers to, -- base load power generates energy and 15 continuously produces electricity at or near full 16 capacity with high availability. So it is something 17 that is very reliable and operates very continuously.
18 And those are the fundamental characteristics. And in 19 our Environmental Report we characterize base load 20 capacity as plants that operate at around a 90 percent 21 capacity factor. We clearly indicated that that is 22 what we are looking at.
23 This is also not you know an unreasonable 24 want. Again, Ameren is a franchised public utility.
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128 1 power to its customers. It's a load-serving entity 2 too, under the MISO. It has a load, and that load has 3 characteristics as all loads do for a utility. A big 4 part of it does not vary. There is a certain amount 5 of power 365 days of the year that has to be provided 6 because it's the base load. And to satisfy that base 7 load a utility will build a large plant that is highly 8 reliable and highly available, that is going to 9 operate for years, day in and day out, and has 10 economies of scale. That is why you build a large 11 nuclear plant and you're willing to make the capital 12 investment because it is a long term, continuous, 13 highly reliable resource.
14 Above that there is regular fluctuations 15 and some of that is predictable when you have cycling 16 units that are used regularly, but they come on and 17 off. They are sometimes called Intermediate Capacity.
18 And above that you have you know the variation in 19 demand and you have peaking units. And it is very 20 important to balance this, because you have to at all 21 times match the demand with the generating capacity or 22 your system is unstable and it is going to crash. So 23 you have to monitor it very, very closely.
24 You also like having this large base load 25 capacity for reliability purposes near your load.
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129 1 That way you don't have to worry about transmission 2 interruptions. You again, get the maximum efficiency.
3 And so utilities you know plan their system that way.
4 If you start trying to substitute wind power for base 5 load capacity you are adding variability to the 6 system, and that has to be compensated. And it is 7 tricky to compensate. You know even if you are 8 relying on a lot of wind it is going to vary. And as 9 it varies in order to maintain the stability of your 10 system you're going to have to ramp up you know some 11 quick response resource to govern that variability.
12 And the more wind you have the greater the ramp up 13 range is and the faster the ramp up time is. You know 14 these are things that utilities consider very, very 15 carefully in their planning, and so does MISO.
16 So the idea that well we will just rely on 17 you know many thousand megawatts of winds to 18 substitute for a base load plant totally ignores you 19 know why the utilities structure their systems this 20 way. Why do they have large, very efficient, very 21 reliable base load plants near their load? They do it 22 for reliability. They do it for efficiency.
23 Just with regard to efficiency there was 24 an observation that Ameren buys 102 megawatts, -- or 25 buys wind power. It's in the Environmental Report NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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130 1 that we buy 102 megawatts of wind power and we have 2 some renewable goals. You know that power that we buy 3 is purchased at around $69.00 per megawatt hour, which 4 is about 6.9 cents per kilowatt hour, compared to the 5 cost of producing power with Callaway that's down 6 around 1.5 cents per kilowatt hour. So yes, we could 7 also buy wind, we would not want to at that price.
8 You also have the transmission issue.
9 You know if you're relying on wind spread out over a 10 large area you're going to have to transmit that 11 power, and that's another challenge. And it could be 12 coming from different places at different times. All 13 of that is a challenge that is eliminated when you are 14 able to have a large, reliable, efficient base load 15 plant near your load. And so our goal and our purpose 16 is not frivolous.
17 It is clear here that the Petitioners are 18 trying to redefine the, -- our goal and our end. In 19 their reply for example, they said the goal of the 20 proposed action is to provide a sufficient energy 21 supply to substitute for the Callaway Plant. Well the 22 goal of our proposal is not to substitute for the 23 Callaway Plant. Our goal is to continue to provide 24 base load power as the Callaway Plant can provide.
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131 1 just energy. You know you can buy energy from a 2 peaking unit, but that does not make it a reliable 3 base load source. Our goal is to have reliable 4 capacity, -- a base load efficient, reliable plant, 5 and that has to be respected.
6 JUDGE TRIKOUROS: Let me ask you, there 7 was a COL filed for Callaway for a new plant at some 8 point, earlier?
9 MR. LEWIS: Yes, and then withdrawn.
10 JUDGE TRIKOUROS: What was the region of 11 interest or the region of, -- the ROI in that COL, do 12 you remember?
13 MR. LEWIS: I think that for alternative 14 sites it was our service storage area.
15 MR. BOBNAR: It was basically the Missouri 16 service area.
17 JUDGE TRIKOUROS: It's the State of 18 Missouri?
19 MR. LEWIS: Yes.
20 JUDGE TRIKOUROS: Okay, does that have any 21 implications with respect to this issue of the MISO 22 Grid, that when, -- you know the only requirement then 23 in the COL was that you look at alternatives within 24 the region of interest, which would have been the 25 State of Missouri, but the MISO Grid is certainly NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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132 1 broader than that, is that correct?
2 MR. LEWIS: It is. We do have a 3 preference for serving native load with native 4 generation. That is reflected again, in our region of 5 interest that was adopted in that proceeding. In 6 addition to meeting you know MISO's reserve margins we 7 remain a regulated public utility. We submit an 8 Integrated Resource Plan to the State of Missouri.
9 You know so we do have very much of an interest in our 10 service territory and it being able to provide 11 reliable power to our service territory, which is 12 served by having your major generation near your major 13 load.
14 JUDGE TRIKOUROS: If you were to do a 15 full-blown alternatives analysis, you know a Section 16 8, -- you know if you had concluded that wind was a 17 viable alternative and you did a full-blown analysis 18 of that, with respect to the whole MISO Grid, would 19 that be a viable analysis? In other words, I'm 20 assuming there would be a lot of issues regarding new 21 transmission lines that would have to be considered.
22 How would one select, -- how would you select sites 23 for such an analysis? I'm just asking the question of 24 could such an analysis be done as is being requested 25 in the Contention?
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133 1 MR. LEWIS: We have done more analysis, --
2 let me go back one step before I say that. I heard 3 the statement that there was nothing in the 4 Environmental Report, and we will take issue with 5 that. There is actually quite extensive discussion.
6 JUDGE TRIKOUROS: It was three pages or 7 some two, --
8 MR. LEWIS: It was in two different places 9 actually, and one section was about three or four 10 pages, -- and I think we had five pages altogether, 11 but it was not insignificant. A lot of it was 12 focusing though on our goal; can we use wind to 13 provide you know a reliable base load source? And so 14 we focused on that. You know if we did a full 15 analysis I would still think a lot of the emphasis 16 would be on that analysis. You know trying to use 17 wind from eight states is going to give you the same 18 sort of reliability that you get from having a large 19 base load plant near your load. And I think the 20 answer would be no.
21 We actually addressed that issue though.
22 You know what the Missouri Coalition here is 23 advocating is not that different from the 24 interconnected wind farm scenario that we looked, --
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134 1 have a lot of wind farms that are connected together 2 by transmission, which is another name for a grid, 3 that are in areas sufficiently remote that you can 4 count on the wind blowing somewhere, some time.
5 Basically there are synoptic wind patterns and if you 6 can disburse them enough then you probabilistically 7 can say well, it may not be, -- you know wind may not 8 be blowing in Missouri, but it's probably blowing in 9 Minnesota. If it is not blowing in Minnesota then 10 maybe it's blowing in Illinois. And you can say well 11 based on that you know I think there is some 12 probability that wind is always blowing somewhere and 13 that I can count on it through the grid.
14 We actually looked at that, -- we looked 15 at the studies, and we looked at the reliability that 16 you've got with that, and we said that is not 17 equivalent to a base load plant. That is in our ER.
18 That is basically what is being advocated here; just 19 rely on a lot of far-flung wind farms that are 20 connected by the grid. It really isn't any different, 21 and in fact, our Environmental Report specifically 22 looks at it, looks at the reliability that is 23 achieved, and says that's not the same. That really 24 is not challenged in our application.
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135 1 would probably start looking at all the environmental 2 impacts of wind greater detail, but in fact, our 3 Environmental Report also touches on that. We did 4 actually an extremely conservative calculation, 5 because we said okay, let's credit wind with 35 6 percent capacity value, which is very generous. And 7 we said okay, what is the minimum amount of wind you 8 would therefore need with this idea to provide you 9 know base load wind through interconnected farms?
10 And we pointed out the huge number of acres of wind 11 farms that you would need to do that.
12 If we had done the calculation the way Dr.
13 Makhijani's numbers suggest we should do it, which is 14 crediting wind at a 15 percent capacity credit, -- we 15 put that into our Answer. You would need 8,000 16 megawatts of wind to provide the same capacity credit 17 that you get with your nuclear plant at that 15 18 percent. If it's 10 well it's 10,000 megawatts. And 19 we started looking up what sort of acres of land do 20 you need to provide that sort of resource. It's 21 hundreds of square miles, if I recall. It's in our 22 Answer.
23 So you would just get a lot more of that 24 if we did a, -- you know we could quantify a lot more 25 impacts. We could quantify the impacts of noise, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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136 1 because wind farms are not quiet. We could quantify 2 the impacts on birds, because they are not very 3 friendly to birds. And unfortunately the best wind 4 farms are where the best wind currents are, which is 5 where the best rafters, which is not a good 6 combination for, -- you know there are a lot of things 7 we could put into a fuller analysis. We did not need 8 to do that.
9 Instead what we did is we looked at all 10 the different ways we could think of to try and use 11 wind a base load resource. We determined just by 12 itself it doesn't work because it is intermittent, so 13 we looked at coupling it with a standby fossil plant.
14 That way you could do it, but as we said that 15 basically only reduces the amount of time the fossil 16 plant is operating. And you get sort of two sets of 17 impacts and it doesn't save you much.
18 We then looked at this interconnected wind 19 possibility. We looked hard and we looked at the 20 studies, and we determined you know it is not 21 sufficiently reliable. We then looked at the storage 22 mechanisms. Again, trying to figure out how can we 23 make this work to produce base load power? And those 24 storage technologies were simply not sufficiently well 25 developed. And that's again, in our Environmental NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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137 1 Report and in our Answer.
2 So we actually took a hard look at could 3 you use wind to produce base load power. We have 4 quite a lot, -- it may be only five pages, but we 5 looked at all the different ways you could do it, and 6 it didn't work. And we've set that forth. And what 7 we have here basically is a contingent that says 8 ignore all that, you know the energy is out there you 9 know, why don't you just buy it. And you know the 10 grid is this magical thing that you know you can buy 11 it and that's the end of the story. It is not even 12 the beginning of the story when you're focused on 13 reliability and efficiency.
14 JUDGE TRIKOUROS: Right. And I guess the 15 question is to what extent is that story adequately 16 told in the Environmental Report? And the Intervenors 17 are saying it is not adequately told; that it should 18 have been analyzed further.
19 MR. LEWIS: Yeah, but I don't think they 20 are. I don't think they are challenging what we have 21 in the Environmental Report. They're saying you know 22 forget base load, you should ignore our purpose (sic).
23 You know base load means nothing you know, so let's 24 redefine the purpose. And that is very different from 25 saying our analysis is wrong with respect to why wind NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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138 1 can't produce base load. They never challenged that 2 proposition. They simply say we don't care about base 3 load. And that fails Seabrook, because it fails to 4 respect the purposes, the needs, the wants, the ends 5 of our proposed action.
6 JUDGE TRIKOUROS: I mean wind is 7 inevitable. We all know that the RPS numbers are 8 growing. Clearly there will be a lot of wind power in 9 the next fifteen or twenty years. And you know people 10 really do have to seriously look at how it can be 11 used, even to replace a nuclear plant, most certainly 12 in a COL context, -- certainly more perhaps than in a 13 license renewal context. But nonetheless, you know it 14 has got to be looked at.
15 But the question for us here is, is that 16 something viable for the licensing of, -- relicensing 17 of Callaway in this period of time given the Davis-18 Besse and Seabrook decisions? And that's really the 19 decision we have to make.
20 MR. LEWIS: And I think those decisions 21 are very instructive. Wind is an important resource 22 and it has its place in the energy mix, as does other 23 types of generation. What we were saying is that 24 Callaway fills one particular type of need, the need 25 for a large base load plant. And what we looked at NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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139 1 is, is wind currently developed to the point where it 2 can substitute for that base load resource. And that 3 is what is in our Environmental Report. And the 4 answer is currently no.
5 You know currently the wind storage that 6 might allow you to use eventually wind in the long run 7 to produce base load power is not there. That is in 8 deed exactly what the Commission ruled in Seabrook.
9 And by the way, in Seabrook the contention 10 was not a combination of interconnected winds coupled 11 with storage. Seabrook, the contention was that wind 12 could be used to produce base load wind by either of 13 two means, either by interconnected winds; and the 14 idea is that you would have these wind farms widely 15 dispersed up and down the east coast with a high 16 speed, efficient transmission connection or 17 alternatively that you could use this compressed air 18 energy storage. And there were two different 19 proposals on how wind could be used, and both of them 20 were found not to be viable based on the current state 21 of the industry and technology.
22 JUDGE TRIKOUROS: But Davis-Besse I 23 believe, did couple the storage with the 24 interconnected wind farms, --
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140 1 Seabrook, not in Davis-Besse.
2 JUDGE TRIKOUROS: -- yeah, I understand, 3 but I'm saying that subsequent to that there was a 4 Davis-Besse decision that was the same basic decision 5 as Seabrook by the Commission, and it did take into 6 account a coupling of compressed, -- at least 7 compressed air storage with interconnected wind farms.
8 Okay. By the way, I just want to note 9 that the studies that have been referenced to us as 10 part of this proceeding seem to show that as the 11 amount of wind generation gets more, -- you know 12 remote wind generation, it's coupled by transmission 13 lines, the percentage that can be attributed to base 14 load optimizes somewhere in the 30 percent range. And 15 the studies that I've seen show that as you get more 16 interconnected wind it actually goes down. And I'm 17 not going to pretend that I understand why that is.
18 MR. LEWIS: I am not aware of anything 19 that talks about this optimization for base load, but 20 yes, you know the capacity credit, -- as wind 21 penetration increases the capacity credit decreases.
22 And I'm not sure I want to try and explain it either.
23 JUDGE TRIKOUROS: That's fine.
24 JUDGE FROEHLICH: I actually just had one 25 question and I guess it goes to the scope of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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141 1 inquiry that the Company made here. To what extent or 2 what is the significance of the fact that Ameren sits 3 in the MISO RTO, from the perspective of studying 4 alternatives to the Callaway Plant? How significant 5 is it? I mean we have just heard that the difference 6 between this case and the studies that were done in 7 Seabrook is that here we are looking at the grid as 8 part of it. So as you evaluate the alternatives to 9 the renewal of Callaway, how significant in your 10 analysis, was the fact that Ameren is part of the MISO 11 system?
12 MR. LEWIS: Not really. I mean Seabrook 13 was part of a grid too, and the contention in Seabrook 14 again, on interconnected wind was that if you 15 dispersed wind farms over a large geographic area and 16 used you know the transmission network to transmit the 17 power you would get some percentage that was 18 sufficiently reliable to constitute base load. It is 19 no different from my perspective. You know it's 20 again, wind farms in remote locations, remote from 21 each other, coupled by transmission. And I don't see 22 that any different from wind farms in the MISO area, 23 which is a big area. I think it is exactly the same 24 scenario.
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142 1 questions. You asked is base load power defined by 2 MISO?
3 There is no specific definition of base 4 load power. There is a definition of a base load 5 supply resource that is used for assigning firm 6 transmission rights. And this is inThe MISO Business 7 Practice Manual No. 4. That definition of a base load 8 supply resource is a generating resource that over a 9 three year period has achieved a 50 percent capacity 10 factor. That is really done for a different purpose 11 though. It is used in the context of assuring firm 12 transmission rights to an incumbent load serving 13 entity to make sure that they have access and 14 transmission for their generating source. And so it 15 is a purposely low definition that encompasses not 16 only the highly reliable plant that operates at 90 17 percent, but you know plants that are more in the 18 cycling range. So perhaps it would have been better 19 if they had called it something else. But it is used 20 for a different purpose. It is used for establishing 21 firm transmission rights.
22 Does the MISO assign a capacity value for 23 wind? Again, you've heard they have this generic 14.7 24 percent effective load-carrying capacity for wind, 25 which is used in long range planning. They also NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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143 1 assign on a yearly basis for every wind farm, a 2 specific capacity factor for their planning purposes.
3 I don't think that, -- I mean those capacity factors 4 are used for reserve margin planning. They really 5 don't go to you know whether a resource provides the 6 same sort of reliability as a base load plant.
7 What is the capacity factor assigned to 8 Callaway for MISO purposes?
9 They do not assign a capacity factor. The 10 capacity credit that is assigned by MISO to our 11 generating resource is based on the unforced capacity, 12 so it's basically the nameplate capacity, minus the 13 forced outage rate. So in determining what the, --
14 it's called the U-Cap, unforced capacity, you don't 15 consider planned outages, they don't count. And so 16 you're figuring out an unforced capacity of how long 17 is it available when it is meant to be available. And 18 if you do the math the U-Cap that has been assigned to 19 Callaway comes up with unforced U-Cap of about 95 20 percent. Obviously it's lower if you put plant 21 outages in there.
22 What is the actual capacity factor for 23 each of the past ten years?
24 I can read them to you if you would like 25 them read into the record or tell you the range.
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144 1 JUDGE FROEHLICH: The range would probably 2 do it.
3 CHAIRMAN BOLLWERK: Judge Froehlich, this 4 is his question, so if the range goes for him, it will 5 do it for me.
6 MR. LEWIS: Okay. From 2002 through 2011 7 the low was 76.85 in 2004, the high was 95.88 in 2009, 8 and most of the results are in the high eighties or 9 low nineties. That is not of course, the U-Cap that 10 is the capacity factor, so that takes into account 11 both the plant outages and the forced outages.
12 Finally, you asked is wind energy treated 13 as a dispatchable interruptible resource?
14 That categorization applies only to wind.
15 It was a recent category that allows wind to 16 participate in the real-time market. Previously wind 17 couldn't in the MISO, and it requires a plant that 18 wants to participate to become dispatchable and 19 register as a dispatchable resource. The goal I think 20 is eventually that all wind would be dispatchable.
21 Currently about one-third is. Some plants are 22 grandfathered. Plants who have long term contracts 23 are grandfathered. Plants that were in existence 24 prior to 2005 and don't have the capability don't have 25 to make the modifications. But the goal here is to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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145 1 make wind more dispatchable.
2 Dispatchable wind means that if wind is 3 providing power and suddenly the wind increases and 4 therefore there is a rapid increase in the amount of 5 power it is producing, you know there can be a 6 dispatched curtailment very quickly. It does not work 7 the other way around though, if wind is generating and 8 all of a sudden the wind drops, and therefore your 9 wind output drops, you know dispatchable power doesn't 10 provide any way for you to just all of a sudden 11 produce that added power. And therefore it is not a, 12 -- it does not resolve all of the reliability issues 13 of relying on wind. I think that's it.
14 JUDGE FROEHLICH: Just one quick 15 clarification. Did you say that dispatchable 16 interruptible DIR(s) only apply to wind in MISO?
17 MR. LEWIS: My belief is yes, the wind is 18 the only intermittent resource that is allowable to 19 qualify as a DIR. Am I right?
20 MR. BOBNAR: Yes.
21 MR. LEWIS: I'm told I'm right.
22 JUDGE FROEHLICH: Okay, thank you.
23 MR. LEWIS: It is in Schedule, -- in 24 Tariff E.
25 JUDGE FROEHLICH: Right.
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146 1 CHAIRMAN BOLLWERK: Let me ask a timing 2 question. How long does the staff think they need for 3 their presentation?
4 MS. MIZUNO: Ten minutes. It depends on 5 the questions the Board wishes to ask.
6 CHAIRMAN BOLLWERK: Okay. Let me ask you 7 a question then, would you rather take a break after 8 you've heard from the staff, give you a chance to take 9 not only a break, but also prepare with Dr. Makhijani?
10 MS. CURRAN: Sure.
11 CHAIRMAN BOLLWERK: So we will do their 12 ten minutes and then take a break and come back to you 13 all. Will that work?
14 MS. CURRAN: Yes, that would be fine.
15 CHAIRMAN BOLLWERK: Okay. All right, 16 let's hear from the staff.
17 MS. MIZUNO: Recognizing that the Board is 18 familiar with our pleadings, and given the Board's 19 instructions in its June 1 Order, I would like to 20 respond to some of the points that have been made 21 today, and some of the points that MCE made in its 22 reply, and to answer the questions that the Board has 23 asked in its Order.
24 And to that end I would say that MCE is 25 right on a couple of points. MCE is correct when it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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147 1 says that the Contention seeks to have wind evaluated 2 as an alternative to license renewal. That's correct.
3 And MCE is correct also when it says that 4 the purpose of the staff's Environmental Impact 5 Statement is to provide decision-makers and the public 6 with information about the impacts of the proposed 7 action, vis-a-vie, reasonable alternatives.
8 But MCE is wrong when it argues that wind, 9 which is not a base load electricity power source 10 should be considered as a reasonable alternative to 11 license renewal for Callaway. And this is because 12 only electricity production sources that produce base 13 load power in an amount equal to the plant at issue, 14 that are technologically feasible and commercially 15 viable and timely, only those are required to be 16 analyzed as reasonable alternatives to license renewal 17 in a full Section 8 analysis.
18 And this is because the end of the 19 proposed action, which is the first question that the 20 Board has posed; what is the end of the proposed 21 action? That end is the same end that the applicant 22 sought in Seabrook. It is the production of base load 23 power. And in Seabrook the Commission held an 24 electricity source that cannot provide base load power 25 need not be analyzed under Section 8 as a reasonable NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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148 1 alternative to license renewal.
2 Now the Board's additional questions all 3 focus on MISO. And Judge Trikouros asked a question 4 about the region of interest and this sort of meshes 5 with our position.
6 So respectfully the staff maintains its 7 position that to focus on MISO is really to ask, -- to 8 focus in somewhat of the wrong way. We realize that 9 this is what MCE is trying to do, but we believe that 10 that focus is mistaken. Because focusing on these 11 MISO facts and figures never get you to the heart of 12 the question. And the heart of the question is does 13 wind qualify as base load power? And it doesn't even 14 qualify as base load power in MISO.
15 We were not able to find a definition of 16 base load power, -- a pure base load power definition 17 in the MISO documents. We searched as well. We also 18 came up with the same base load reference that 19 Ameren's counsel found, but that is for a different 20 and somewhat limited purpose. But if you were to look 21 at that, that, -- even with its very, very low figure 22 of 50 percent, -- at least 50 percent electricity 23 production, -- or sorry capacity factor, even if you 24 go with that very, very low figure wind and MISO does 25 not cut it. And as MCE's counsel acknowledged, the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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149 1 capacity factor for wind in MISO is 14.7 percent, just 2 shy of 15 percent. And that's what counsel gave. And 3 that's what we found as well.
4 And another question that the Board posed 5 that leads to the next question, which is capacity 6 value. What is the capacity value of wind in MISO?
7 Your Honors, we had a very difficult time 8 finding the phrase capacity value in the MISO 9 documents. The phrase capacity value shows up on a 10 number of occasions in Dr. Makhijani's Declaration, 11 but MISO generally talks about capacity factors and 12 capacity credits. And that is generally what we 13 focused on. And that 15 percent number that counsel 14 for MCE put forward is a capacity credit number in 15 MISO, and I just wanted to make that clear.
16 Capacity credit has been explained to me 17 in sort of laymen's terms and I'm hoping I get this 18 right. It has been explained to me as the amount 19 likely that you can count on, on the hottest day of 20 the year when you need it most that this is the amount 21 that this particular electricity producer will be able 22 to give you. This is what you can depend on when you 23 really, really need it.
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150 1 out, we found this as well, when you're calculating 2 capacity credits for wind you're looking at capacity 3 credits on a wind farm specific basis. So it is so 4 flexible or rather reliant on circumstances that when 5 it is calculated for wind, geography sighting, all of 6 that matters an awful lot. And the wind flow I guess 7 at that place would matter an awful lot. And so it is 8 calculated on wind farm by wind farm basis.
9 The Judges talked about, -- Judge 10 Trikouros asked a question about a full analysis. If 11 you took the proposition that MCE has put forward that 12 what you need to look at is wind plus the grid, and 13 the question is can you actually do a full Section 8 14 analysis of wind plus the grid? Counsel for the staff 15 of the NRC would say no your Honors, you cannot. It 16 really does not make any sense, because as we said in 17 our pleading, in a very extensive footnote; so I 18 appreciate your patience, we explained that if you do 19 that what you're talking about is a combination 20 alternative. You're talking about a combination 21 alternative which includes wind, plus everything else 22 that feeds the grid. Because as I'm sure counsel and 23 the Judges understand, the grid actually produces 24 nothing. The gird never produces a single bit of 25 electricity. It allows electricity to move from point NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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151 1 to point, from producers to consumers, but the grid 2 itself produces nothing.
3 What produces electricity that feeds the 4 grid are the producers that actually feed the grid.
5 So if you're talking about wind, plus the grid, what 6 you're actually talking about is wind, plus gas, plus 7 coal, plus hydro, plus wind, plus nuclear. You're 8 talking about everything that feeds that grid.
9 This is not a useful analysis for purposes 10 of analyzing nuclear power verses wind power. And 11 that is what we pretty much said in our pleading; that 12 this combination alternative that MCE is putting 13 forward would require analysis of every alternative 14 and any alternative, regardless of whether it could 15 produce base load power. And whether it was the kind 16 of alternative that in fact the Board is bound by the 17 Seabrook and Davis-Besse Commission decisions to hold 18 to. Do your Honors have any questions?
19 JUDGE TRIKOUROS: No, I don't think so.
20 JUDGE FROEHLICH: I don't think so.
21 CHAIRMAN BOLLWERK: All right, we will go 22 ahead and then, -- thank you very much. Let's take a 23 break. I now have about five 'til one, let's take a 24 break until around one o'clock and we'll come back and 25 finish up with your reply and then we will be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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152 1 basically done, other than a few administrative 2 details.
3 [Whereupon, at 12:55 p.m. the hearing was 4 recessed, to reconvene this same day at 1:00 p.m.]
5 CHAIRMAN BOLLWERK: If we could go back on 6 the record please? All right, we just finished the 7 break and I think we're in the home stretch here.
8 Before you give your full reply I just want to ask one 9 question.
10 We've heard from staff counsel sort of 11 this is really not a, -- if it were Section 8, it's 12 really not a Section 8 analysis. It's really not a 13 question of analyzing wind, but analyzing everything.
14 That's probably not what you've asked for, but it does 15 seem to suggest that. What response do you have to 16 that?
17 MS. CURRAN: I'm not sure I understand the 18 question?
19 CHAIRMAN BOLLWERK: Well, if I understood 20 her argument, -- go ahead, I'll let you, --
21 JUDGE TRIKOUROS: Well, I will try to 22 embellish it. As I understood the comment, when you 23 talk about wind power in conjunction with the grid, 24 which was the basis of your premise in your 25 Contention, you really are talking about wind in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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153 1 combination with the other energy sources on the grid.
2 And in order to do a proper alternatives analysis you 3 would have to look at it as if it were a combination 4 option, you know such as wind plus solar, plus 5 storage, you know and all these combinations are 6 looked at, wind plus natural gas you know et cetera.
7 When you bring in the grid you really are doing sort 8 of a super combination analysis. That was the 9 statement made by the NRC staff counsel.
10 MS. CURRAN: This gets back to our request 11 for an apples to apples analysis. It assumes that 12 nuclear operates outside the grid; your question, and 13 that looking at any other alternative would be, --
14 that included the grid would be far afield. So what 15 we're saying is nuclear has outages. You could not 16 rely exclusively on nuclear without having outages.
17 You must look at nuclear in the context of the grid.
18 And therefore you must look at alternatives in the 19 context of the grid. We are asking for consideration 20 of the wind alternative in the context of the grid.
21 Does that, --
22 JUDGE TRIKOUROS: Well you know I think it 23 is an interesting comment that nuclear is not 100 24 percent available either, but it is 90 plus percent 25 available. I think the, -- strictly speaking to do NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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154 1 apples and apples, one would have to look at a nuclear 2 plant operating 90 percent of the time, plus the grid 3 replacing it 10 percent of the time. And a series of 4 wind turbines operating 15 or 20 percent of the time, 5 or 30 percent of the time, depending on what you could 6 justify, plus 70 percent of the time looking at the 7 rest coming from the grid. And you know if the entire 8 grid were natural gas for example, other than that 9 wind, it would be a fairly simple thing to do. But 10 that might illustrate the way it would have to be 11 done. You would have to look at 30 percent wind, plus 12 70 percent natural gas as a combo. And the other, --
13 in the nuclear case it would be 90 percent nuclear, 14 plus 10 percent natural gas. But that's the comment 15 that was, -- so do you disagree with what you heard?
16 MS. CURRAN: Yes. Yeah, we disagree and 17 let me explain. First I want to talk about this 18 concept of, -- okay, so I just want to talk about the 19 capacity factor. We know from what Mr. Lewis said 20 that in 2004 Callaway operated at about 75 percent 21 capacity factor, -- 76 percent capacity factor. We 22 know in France the capacity factor is 80 percent.
23 Coal, which is called base load is often between 60 24 and 70 percent, and we know that the best resources 25 for wind say 50 percent. So there's a, -- it is not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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155 1 such an extreme comparison.
2 In 2004 Callaway needed the grid for three 3 months. So, --
4 JUDGE TRIKOUROS: Would you repeat that?
5 I'm sorry what did you say?
6 MS. CURRAN: In 2004 Callaway needed the 7 grid for three months. And in Dr. Makhijani's 8 Declaration we demonstrated that in recent years 9 nuclear can have outages, prolonged outages. So we 10 have provided evidence that nuclear can have prolonged 11 outages; that there is a real potential in the future 12 that nuclear will not be as reliable as is claimed by 13 Ameren.
14 But we are not saying, -- you know we are 15 not saying that nuclear is frivolous. We're just 16 saying that it has to be compared realistically with 17 other options, -- with wind, in a way that, -- in the 18 same kinds of considerations that apply to Ameren's 19 reliance on nuclear to serve what they, -- you know 20 this concept of base load, of being able to provide a 21 consistent supply of electricity over a reliable 22 period of time, that involves reliance on the grid.
23 So why are we precluded from advocating 24 the wind alternative when it is the same basic concept 25 of the grid must compensate for the outages of this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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156 1 technology. And the technology itself is viable, it's 2 commercially feasible.
3 JUDGE FROEHLICH: Can I ask one question?
4 Staff counsel Mizuno in her talk said the grid doesn't 5 really supply any energy it comes from different 6 generation sources. So when you just say to us that 7 Ameren had to rely on the grid for three months, did 8 they rely on the grid are you saying, or did they rely 9 on their other generation resources?
10 MS. CURRAN: When we say grid we mean 11 other generation sources through the same transmission 12 network.
13 JUDGE FROEHLICH: Right. But I mean in 14 the real world, if we are comparing apples to apples 15 you know what would Ameren do if one of its base load 16 units went down? It would look to, -- I guess within 17 its other generation sources for something to swap in 18 there. It's not coming from really the amorphous grid 19 or from Minnesota. It's probably coming from some 20 coal plant that had been you know out of service or 21 perhaps a natural gas generator that they owned. Is 22 that right?
23 MS. CURRAN: Not if it were unplanned 24 outages, they would be purchasing power.
25 JUDGE FROEHLICH: Okay. And the three NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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157 1 month example that you used was that primarily planned 2 or unplanned?
3 MS. CURRAN: We would assume that was 4 unplanned.
5 MR. LEWIS: That's not, --
6 MS. CURRAN: That's not right? We would 7 have to study the specific case, but in general 8 electrons are not just moving within Ameren's specific 9 service territory.
10 JUDGE FROEHLICH: Agreed.
11 MS. CURRAN: Whenever you have outages you 12 have to consider the reliability of power supply 13 within the entire grid. The grid is a way of 14 maintaining stability of power supply.
15 Now what we are saying is the structure 16 exists to provide the stability that I think Mr. Lewis 17 was saying Ameren desires. That is what the grid 18 does. And you know that is a modern development 19 that's happened, the establishment of these grids, 20 where there is a great variety of energy sources that 21 are available for, -- to be sold and purchased. And 22 that it is a much more fluid situation then what was 23 assumed when Callaway was licensed.
24 I would like to just read something. One 25 of the topics of discussion here is the comparison of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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158 1 this case to the Seabrook case. At page 48 in the 2 slip opinion the Commission described the fact that 3 the Board admitted the Contention, but restricted its 4 scope. And the Commission says, "Concluding that all 5 supporting facts focus exclusively on wind power 6 generation the Board limited Beyond Nuclear's 7 Contention to just that form of renewable energy."
8 So that Contention was quite narrow I 9 think, though there was a real distinction between 10 that Contention and the Contention that is being 11 presented here.
12 I just want to make a couple more points.
13 CHAIRMAN BOLLWERK: All right.
14 MS. CURRAN: First of all, I think Mr.
15 Lewis said that Ameren's choice of an alternative 16 needs to be respected, and he cited the, -- I think 17 the Buesie Case (phonetic). And it's certainly true 18 that the Agency gives special weight to applicant's 19 preference. But it can't be the case that the 20 applicant's preference rules; that if the applicant 21 does not want to consider alternatives it doesn't have 22 to. NEPA requires the consideration of a reasonable 23 array of alternatives, and after all, this is the 24 NRC's responsibility to license this reactor. Are we 25 saying before, -- to confer certain subsidies on it to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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159 1 allow the generation of spent fuel with no known means 2 of disposing of it?
3 There are a number of things that happen 4 with the issuance of a permit that aren't just 5 private, they're public. This is a Government 6 decision to allow certain risks and impacts to be 7 imposed on the public and only with the issuance of a 8 federal permit can this happen. So to say that this 9 entire decision is exclusively within the purview of 10 Ameren is not correct.
11 If an alternative is reasonable then it 12 needs to be discussed. Ameren's choice of 13 alternatives may be deferred to, but if an alternative 14 is reasonable we think that the law requires that it 15 must be addressed.
16 Finally, I would like to talk about the 17 relationship between capacity factor and base load.
18 The idea that we can have, -- that we can use the 19 average annual capacity factor to define base load is 20 mistaken. Base load from the point of view of, --
21 wait a minute, strike that. Base load from the point 22 of view of reliable energy supply relates to the order 23 in which it is dispatched, and not an average annual 24 capacity factor. That's why MISO doesn't give 25 capacity factors, because they are irrelevant.
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160 1 Consumer supply has to be much more 2 reliable than the availability of any individual 3 source. You know that's something that is 4 demonstrated, -- has been demonstrated in our 5 evidence, and also what's been said here today, that 6 other sources are necessary in order to achieve that 7 reliability of consumer supply. The idea that the 8 continued operation of Callaway is the only way that 9 that can be achieved is simply not credible, it's not 10 reasonable.
11 Well I would just like to point out that 12 Germany is planning to replace its nuclear plants with 13 renewables in the next ten years. So you know we are 14 in a world that's changing. And that's part of our 15 purpose here today, is to use NEPA to force 16 consideration of the changing environment of energy 17 production; that there are ways to produce energy that 18 have less serious impacts and that are commercially 19 viable that are being used now, and that are advancing 20 relatively quickly. We want to make sure that the 21 Callaway license renewal decision is fully up to date 22 and not in the past somewhere.
23 And then finally we want to make sure that 24 the unreliability of nuclear, as has been demonstrated 25 in recent years, is also taken into account in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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161 1 weighing those alternatives. Thank you.
2 CHAIRMAN BOLLWERK: Okay.
3 MR. LEWIS: May I offer two very focused 4 points?
5 CHAIRMAN BOLLWERK: As long as Ms. Curran 6 gets the last word; very focused.
7 MR. LEWIS: Yes, that's fair. The 2004 8 capacity factor should not be assumed to be an 9 unplanned outage. There was a planned condenser 10 replacement during a scheduled outage in 2004.
11 Ms. Mizuno I think indicated that the 12 capacity credit in MISO is calculated based on the 13 worst peak. Just a clarification of that, I believe 14 the capacity credit is calculated based on a one year 15 average. There is a calculation that MISO does on 16 what is the available capacity from wind during the 17 worst peak, and I will provide references as other 18 parties are doing, but it's basically 7 percent of the 19 capacity during peak times. And that is one of the 20 aspects of wind is that during peak when the air is 21 very hot and also stagnant then the wind actually 22 contributes the least.
23 CHAIRMAN BOLLWERK: All right. Let me 24 turn to Ms. Mizuno. I was about to say do you have 25 anything you want to say about that and then we'll go NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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162 1 back to Ms. Curran?
2 MS. MIZUNO: No. Actually I have 3 something not to say about what counsel for Ameren 4 just said, about explaining where you can find 5 capacity factor numbers. Capacity factor numbers for 6 Callaway; at least as far as the NRC calculated them 7 based on just the amount of megawatts produced verses 8 the faceplate, that's all in The Information Digest.
9 The Information Digest however, those numbers only go 10 back eight years, so you are going to have to grab a 11 couple of old Information Digests to get your full ten 12 years. But the capacity factor is all public and has 13 been out there ever since, --
14 CHAIRMAN BOLLWERK: I probably have ten 15 years sitting in my office, so that's probably, --
16 MS. MIZUNO: I think you're all set, your 17 Honor.
18 CHAIRMAN BOLLWERK: Right. All right, Ms.
19 Curran, anything you want to say about either of those 20 two items?
21 MS. CURRAN: No.
22 CHAIRMAN BOLLWERK: Any questions, Judge 23 Trikouros?
24 JUDGE TRIKOUROS: No.
25 CHAIRMAN BOLLWERK: Let me just ask one.
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163 1 There wasn't much said in Dr. Makhijani's Affidavit 2 about transmission, and it seems to me that that's an 3 important, -- I mean we have to find that the, -- this 4 is technically feasible and commercially viable, and 5 somehow all of this has to be put to together and 6 transmission becomes an important part of it. How can 7 we make that sort of finding without any information 8 from you all about the transmission; what it is going 9 to cost and what that entails?
10 MS. CURRAN: Judge Bollwerk, there is such 11 a large amount of wind generation that is now being 12 planned in the eastern interconnect, what we are 13 talking about is a relatively small fraction of that.
14 And as far as we know transmission is a standard part 15 of the planning for that, so that it is not, -- you 16 know this is in process. It is part of the system 17 that is being planned. You know what we are talking 18 about is we're telling you that this is being planned; 19 that this capacity is being built; that Ameren can 20 take advantage of this and that, -- we didn't think 21 there was a separate independent need to address 22 transmission costs.
23 CHAIRMAN BOLLWERK: All right, any 24 questions that brings to, -- one last question. MISO, 25 how many nuclear reactors are within MISO, if anyone NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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164 1 knows?
2 JUDGE FROEHLICH: Eleven.
3 CHAIRMAN BOLLWERK: Eleven?
4 JUDGE FROEHLICH: I think.
5 CHAIRMAN BOLLWERK: All right. All right, 6 I'm hearing eleven, is that, --
7 MR. LEWIS: It's eleven.
8 CHAIRMAN BOLLWERK: Okay. The question I 9 have is this, the argument you are making here is 10 relative to Callaway, and all right, we replace 11 Callaway with wind. And then we move to the next one 12 and replace that one with wind, and it's sort of like 13 a game of Jingle, you keep pulling the pegs out, when 14 do you have problems keeping the stack in place, I 15 guess that's my question? Does this apply to every 16 reactor? I recognize you're only doing it in the 17 context of Callaway, but that's the first step, where 18 do we go in the future?
19 MS. CURRAN: We think that over time all 20 nuclear and fossil fuel plants can be replaced with 21 renewables with proper planning. But of course, what 22 we are dealing with today is Callaway, our analysis 23 did not, -- we did not try to do the entire array of 24 nuclear plants in the MISO service area. And you know 25 we are not suggesting that it could be done in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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165 1 next ten to fifteen years. You know we just have not 2 done that analysis.
3 CHAIRMAN BOLLWERK: All right, any other 4 questions then? Judge Trikouros.
5 JUDGE TRIKOUROS: You mentioned Germany, 6 I did just happen recently to see an article that said 7 the largest aluminum plant that Germany just shut 8 down, the electricity prices were too high to sustain.
9 I don't know if you want to comment on that, but, --
10 MS. CURRAN: We do know that the spot 11 prices for electricity in Germany are lower than they 12 were a year ago. So you know we don't know about that 13 particular decision, but those prices have come down.
14 CHAIRMAN BOLLWERK: All right, I think at 15 this point then if there is nothing else from any of 16 the participants and the Board having no more 17 questions, I think we have concluded our oral 18 argument.
19 MR. LEWIS: Judge Bollwerk?
20 CHAIRMAN BOLLWERK: Yes.
21 MR. LEWIS: When should the parties submit 22 their references?
23 CHAIRMAN BOLLWERK: That's where we're 24 going to. That's where we're headed right now.
25 MR. LEWIS: Okay.
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166 1 CHAIRMAN BOLLWERK: That's no problem. We 2 have a couple of administrative items to deal with.
3 There were if I counted them correctly, four items I 4 think that the Petitioners are going to provide us 5 with, and I will go over them briefly; a MISO glossary 6 citation, the citation to FERC Chairman Wellington, --
7 JUDGE FROEHLICH: Wellinghoff.
8 CHAIRMAN BOLLWERK: -- Wellinghoff's 2009 9 statement I believe it was. The 2011 decision by FERC 10 and also a MISO reference regarding must run. Does 11 that sound about right?
12 MS. CURRAN: Yes.
13 CHAIRMAN BOLLWERK: Okay. And we have one 14 also citation from the Applicant. I'm thinking by 15 February 5th, which is five days from now, is that 16 enough time for everybody?
17 MR. LEWIS: February 5th?
18 CHAIRMAN BOLLWERK: I'm sorry did I say 19 February? I'm sorry that's not right. I've got the th 20 wrong month. June 5 , -- June 12th which is five 21 days from now. Sorry. Is that acceptable? No 22 problem?
23 (No audible response) 24 CHAIRMAN BOLLWERK: Okay, just go ahead 25 and file it in the regular way, a letter or whatever NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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167 1 you think is appropriate. Again, June 12th.
2 A couple of other items just very briefly, 3 in terms of scheduling matters and discovery matters, 4 if the Missouri Coalition is found to have standing 5 and one or more of its Contentions is admitted, in 6 setting a 10 CFR Section 2.332(d) schedule for the 7 proceeding the Board will need to make an assessment 8 about future filing dates and any evidentiary hearing 9 based on the status of the staff's review schedule.
10 The most recent licensing review schedule 11 for the proceeding posted on the NRC website indicates 12 that the staff's Safety Evaluation Report, or SER, 13 will be issued with open items in April of 2013 and 14 then final in September of 2013. And a Supplemental 15 Environmental Impact Statement, or SEIS, would be 16 issued in draft in February of 2013 and in final form 17 in September of 2013. Any reason that that schedule 18 at this point, -- now we will ask this question again 19 before we make a schedule, but has anything changed 20 about that schedule that you're aware of?
21 MS. MIZUNO: As far as we know right now 22 your Honor, all those dates on the NRC website are 23 right.
24 CHAIRMAN BOLLWERK: Okay. Okay again, 25 things change and we will ask you again, but I just NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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168 1 wanted to see if that's where we are right now.
2 Let me also mention that consistent with 3 the existing provisions of Section 2.309(i), the Board 4 will be endeavoring to issue a decision on the matters 5 of standing and Contention admissibility during July 6 of 2012.
7 If the hearing is granted the parties 8 should be aware that the Board is likely to convene a 9 Pre-Hearing Conference regarding future scheduling 10 fairly promptly after that. And probably some time in 11 July or early August of 2012, just for your 12 information.
13 Also assuming a hearing is granted the 14 participants should be aware that the general 15 discovery provisions under Section 2.336, including 16 the need for the staff to provide a hearing file, will 17 be activated regardless of whether there is any Board 18 Order or party discovery request.
19 Also relative to general discovery the 20 participants may wish to discuss whether they want to 21 prepare and produce privilege logs or waive such logs, 22 again if this case were to go to that stage. So that 23 is something to think about in the interim.
24 At this point, I think, -- I know that we 25 were talking among ourselves at the last break. We NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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169 1 felt this was an extremely interesting and useful oral 2 argument. All the counsel gave us a lot of 3 information, a lot of your views very well presented.
4 We appreciate very much the effort you went into. We 5 gave you some questions at the last minute; I think 6 three days is, -- well, maybe over the weekend, but 7 pretty near the end of the proceeding, or at least 8 before we held this argument, and I think you were 9 well prepared. We do appreciate that. You brought a 10 lot of information to us. We have a lot to think 11 about here. There are a lot of interesting issues 12 here and they have to be given very careful 13 consideration. So we do appreciate the efforts of 14 counsel in bringing that information to us and I think 15 the argument was one of the better ones that I've been 16 to, frankly. So we do appreciate your efforts.
17 In terms of thank yous, William Woods 18 University has done a great job here with this room.
19 They allowed us to use the Aldridge Lounge here in the 20 Aldridge Recreation Center and we appreciate that.
21 Sean Spears (phonetic), of the University's 22 Information Technology staff helped us ensure that the 23 audio system we used today was fully functional, and 24 I think it worked just great. I felt like I was back 25 dealing with some of the folks at the NRC that we have NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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170 1 used for years, and our IT staff at ASLBP, and 2 everything worked just great. So we really appreciate 3 Sean's efforts.
4 Also Brenda Foster, the University's 5 administrative staff, who was really instrumental in 6 trying to, -- in making this available to us, making 7 all the arrangements that were necessary, we very much 8 appreciate her efforts as well.
9 I also want to say thank you to Karen 10 Skidmore (phonetic), of the NRC Security Office, and 11 the members of the Callaway County Sheriff's 12 Department who were here with us today to provide 13 security for the proceeding which is always important.
14 Laurie Uselding (phonetic), of the NRC 15 Region 4 OPA staff who is here, provided any 16 assistance that we needed. Back in Rockville, ASLBP 17 IT specialist Jud Licker (phonetic), worked with Sean 18 to make this set up here work just fine.
19 I want to thank our Law Clerk Matt Flyntz, 20 who was the timekeeper here, although we didn't really 21 keep the time very carefully. We sort of wanted to 22 get the views, but he was right there with telling me 23 when your time had expired, even though I didn't say 24 anything to anybody about that.
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171 1 (phonetic), the Panel's administrative staff, for 2 finding us this excellent venue and for taking care of 3 all the mere details to get the Board to Fulton and to 4 make sure everything proceeded smoothly while we were 5 here. Sarah, we really appreciate your efforts. I 6 think this was a good venue, a good proceeding. We 7 also appreciate the efforts of the court reporter.
8 Hopefully we did not cause too much trouble for you, 9 but if you need any information let us know, we will 10 be glad to help out.
11 All right, at this point, Judge Froehlich, 12 anything?
13 JUDGE FROEHLICH: I have nothing further.
14 CHAIRMAN BOLLWERK: Thank you. Judge 15 Trikouros?
16 JUDGE TRIKOUROS: No.
17 CHAIRMAN BOLLWERK: Again, we thank you 18 very much for your efforts here. We are sorry we kept 19 you a little longer than lunchtime, but now you're 20 done for the day and you can all go out and enjoy the 21 afternoon and the evening. Again, thank you very much 22 and we stand adjourned.
23 [Whereupon, at 1:30 p.m. the hearing was 24 adjourned.]
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