ML12314A370
| ML12314A370 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 11/09/2012 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| RAS 23734, 50-346-LR, ASLBP 11-907-01-LR-BD01, NRC-1923 | |
| Download: ML12314A370 (205) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
First Energy Nuclear Operating Company Davis Besse Nuclear Power Station Docket Number: 50-346-LR ASLBP Number: 11-907-01-LR-BD01 Location: Toledo, Ohio Date: Tuesday, November 6, 2012 Work Order No.: NRC-1923 Pages 275-712 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433
510 1 UNITED STATES OF AMERICA 2 U.S. NUCLEAR REGULATORY COMMISSION 3 + + + + +
4 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 5 + + + + +
6 ______________________________
7 In the Matter of: : Docket No.
8 FirstEnergy Nuclear : 50-346-LR 9 Operating Company :
10 : ASLBP No.
11 (Davis-Besse Nuclear Power : 11-907-01-LR-BD01 12 Station, Unit 1) :
13 ______________________________:
14 Tuesday, 15 November 6, 2012 16 Toledo, Ohio 17 18 19 BEFORE:
20 WILLIAM J. FROEHLICH, Chairman 21 WILLIAM E. KASTENBERG, Administrative Judge 22 NICHOLAS G. TRIKOUROS, Administrative Judge 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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511 1 APPEARANCES:
2 On Behalf of the U.S. Nuclear Regulatory 3 Commission:
4 BRIAN G. HARRIS, ESQ.
5 CATHERINE KANATAS, ESQ.
6 U.S. Nuclear Regulatory Commission 7 Office of General Counsel 8 Mail Stop 15 D21 9 Washington, D.C. 20555 10 (301) 415-1392 11 On Behalf of the Applicant:
12 TIMOTHY P. MATTHEWS, ESQ.
13 KATHRYN M. SUTTON, ESQ.
14 MARTIN J. O'NEILL, ESQ.
15 STEPHEN J. BURDICK 16 of: Morgan, Lewis and Bockius LLP 17 1111 Pennsylvania Avenue NW 18 Washington, DC 20004 19 (202) 739-5527 20 DAVID W. JENKINS, ESQ.
21 Senior Corporate Counsel II 22 of: FirstEnergy 23 76 South Main Street 24 Akron, OH 44308 25 (330) 384-5037 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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512 1 On Behalf of the Intervenors:
2 TERRY J. LODGE, ESQ.
3 of: Citizens Environmental Alliance of 4 Southwestern Ontario, Don't Waste 5 Michigan, and Green Party of Ohio 6 316 N. Michigan Street 7 Suite 520 8 Toledo, OH 43604 9 (419) 255-7552 10 11 KEVIN KAMPS 12 of: Beyond Nuclear 13 6930 Carroll Avenue 14 Suite 400 15 Takoma Park, MD 20912 16 (301) 270-2209 17 18 MICHAEL KEEGAN 19 of: Don't Waste Michigan 20 811 Harrison Street 21 Monroe, MI 48161 22 (734) 770-1441 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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513 1 Also Present:
2 MATTHEW FLYNTZ, ESQ., Law Clerk 3 ONIKA WILLIAMS, ESQ., Law Clerk 4 BRYCE LEHMAN, NRC, NRR 5 VIKTORIA MITLYNG, NRC, Public Affairs 6 JOHN PARILLO, NRC, NRR 7 KAREN VALLOCH, NRC, ASLBP 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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514 1 P-R-O-C-E-E-D-I-N-G-S 2 (9:00 a.m.)
3 JUDGE FROEHLICH: Please be seated. Good 4 morning. We'll be on the record. When we left last 5 night there were a number of outstanding questions 6 that the parties were either going to research or 7 think about over the evening hour as well as the Board 8 was given certain homework assignments and materials 9 to read and familiarize ourselves with for the 10 proceedings this morning.
11 I wonder if anyone is prepared at this 12 moment to report back on the items that we were 13 discussing at the conclusions of yesterday's session?
14 MR. LODGE: We are, Your Honor, first I 15 want to address the issue of timeliness and I realize 16 the Court was trying to close that yesterday. But 17 there was one thing that we wanted to clarify. As Mr.
18 Matthews pointed out several times my memory is not as 19 good as our written filings of ten or 11 months ago.
20 But in the January 10th filing we did 21 indicate, at Paragraphs 32 and 33, that there was a 22 December 6th meeting that Congressman Kucinich had 23 with certain NRC staff and that on December 7th he 24 made and published a public statement that stated, "as 25 a result of information shared by the NRC it was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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515 1 revealed that the extent of the cracks is greater than 2 portrayed to the public.
3 In that quotation he says further, he 4 says, "cracks have been found in additional locations 5 not revealed in public statements by First Energy, 6 including cracks around the top 20 feet of the 7 building." That was the reference that I was 8 straining for and had referred to a January 31st 9 filing or letter that the NRC had sent.
10 In any event, we believe that, we don't 11 believe, that was one of the prompting, triggering 12 motivations for our January 10th filing. And it, of 13 course, is well within the 60 day period. I just 14 wanted to bring that to the Board's attention, 15 realizing the pleadings in a way speak for themselves 16 but sometimes when they're amplified orally it helps.
17 JUDGE FROEHLICH: Thank you, Mr. Lodge.
18 MR. LODGE: Further, and I didn't know if 19 there was a discussion on that point or if you want me 20 to kind of go down our list of responses.
21 JUDGE FROEHLICH: If you're prepared on 22 the items that were --
23 MR. LODGE: Thank you.
24 JUDGE FROEHLICH: -- left for you to 25 address, now would be appropriate.
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516 1 MR. LODGE: There is in the Board's mind, 2 we could tell from questioning yesterday, a question 3 as to whether Contention 5 is simply, maybe simply is 4 the wrong word, but strictly about safety or does it 5 involve in some respects NEPA.
6 We would point out that our contention 7 certainly involves, clearly the implication, or the 8 express concern, that there could be a severe accident 9 that might befall the reactor as a result of the 10 cracking problems. A severe accident sequence. And 11 it is our belief that severe accidents, as the 1996 12 Generic Environmental Impact Statement indicates, 13 severe accidents are in some circumstances Category 2 14 issues.
15 In particular in the GIEIS it indicates 16 the staff concluded the generic analysis of severe 17 accidents applies to all plants and that the 18 probability weighted consequences of atmospheric 19 releases, fallout into open bodies of water, releases 20 to ground water and societal and economic impacts of 21 severe accidents are of small significance for all 22 plants.
23 However, not all plants have performed a 24 site-specific analysis of measures that could mitigate 25 severe accidents, consequently severe accidents are a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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517 1 Category 2 issue for plants that have not performed 2 the site-specific consideration of severe accident 3 mitigation and submitted their analysis for Commission 4 review.
5 Now clearly there is an analysis but it 6 has not been approved in terms of the determination of 7 the contention for issue. And we believe also that 8 this particular Category 2 classification does apply 9 here. And it certainly implies that the SAMA, once 10 again, should definitely address the cracked shield 11 building corroded steel liner problem.
12 We agree further that our contention is 13 within the scope of 10 CFR 54.4 as a safety issue. I 14 won't read that regulation, I think it's pretty 15 obvious.
16 There was a question as to why the 17 contention had not been amended since January. It 18 hasn't been amended since January because our belief 19 is that the root-cause analysis and the revised root-20 cause analysis which ascribe enormous damage to the 21 Blizzard of '78, is not a credible explanation among 22 the three dozen or so that were surfaced and 23 discussed.
24 That at a minimum even if the blizzard 25 were perceived as some sort of initiating event NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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518 1 because of high winds, circumferentially and 2 considerable penetration of moisture into the 3 concrete, there's another 35 years that haven't been 4 well account for, because it's rained in Northwestern 5 Ohio and rained and snowed and blown very severely 6 from time to time during that period of time.
7 Therefore, we continue, the Interveners 8 persist in position that they causation remains 9 unknown or unexplained.
10 JUDGE TRIKOUROS: Mr. Lodge?
11 MR. LODGE: Yes.
12 JUDGE TRIKOUROS: Just a quick question.
13 Why didn't you submit a contention that basically said 14 that after the Root Cause Report was issued?
15 MR. LODGE: I guess because it was our 16 position that the contention, as stated, were accurate 17 enough. Were accurate. Yes, I'm reminded by the fact 18 that the root cause, number one, was revised in May.
19 And even in June as it rendered its apparent 20 acquiescence in the root cause finding, the staff 21 continued to have some difficulty discussing some 22 other potential or likely root causes.
23 Also there was the contractor of 24 FirstEnergy, the Performance Improvement International 25 group that had considerably questioned, and in fact NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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519 1 was questioned by the NRC, as to its position on the 2 strength of the theory. So again, we thought that as 3 stated the contention adequately discussed or 4 addressed the fact that the cause is not well 5 established or well founded.
6 JUDGE FROEHLICH: It doesn't show up on 7 the record, when you read the transcript no one will 8 know.
9 MR. LODGE: I don't know, some court 10 reporters say "long pause." Anyway, further 11 responding to your questions of yesterday from the 12 Board.
13 One of the questions, I think from Judge 14 Trikouros, was why isn't this contention moot. It's 15 not moot for a number of reasons. One of the which is 16 we continue to see RAIs directed to FirstEnergy from 17 the Staff.
18 For instance asking for rather 19 extraordinary proof, evidence, of the adequacy of the, 20 for want of a better word, whitewash that's been 21 applied to the shield building cracking. Whether, for 22 instance, that material is adequate to not allow any 23 further penetration analogous to what ostensibly 24 happened in the Blizzard of '78.
25 Also, as we mentioned yesterday, I believe NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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520 1 December 1st is a looming deadline for FirstEnergy to 2 begin to implement its plan to have a plan by way of 3 some additional core drills and analysis of the status 4 of some, but only a few, new areas of the Shield 5 Building.
6 This is a continuing investigation. It is 7 far from moot. And we believe that the root-cause 8 analysis is actually a continuing phenomenon right 9 now.
10 At this point that's all the answers or 11 responses we have to the questions of yesterday.
12 JUDGE TRIKOUROS: And for the Applicant?
13 MR. MATTHEWS: Thank you, Judge Trikouros.
14 For the record this is Tim Matthews again.
15 FirstEnergy's homework, we took yesterday, one of our 16 action items was to report back to the Board where our 17 investor media statement was published. It was put on 18 the FirstEnergy media relations or investor relations 19 website.
20 And some communications were made to local 21 media outlets and energy media. And it was picked up 22 by the Plain Dealer and the Toledo Blade on the 31st 23 or the 1st. It also reached Bloomberg News, The 24 Energy Daily and two local television stations by the 25 following day, November 1st. And the Intervenors NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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521 1 acknowledged they were aware of the press statements.
2 I would briefly like to renew our 3 objection from yesterday for the record and remind the 4 Board of its language from the motion to strike in the 5 context of this, particularly the Intervenor's initial 6 pleading, initial contention, parts of it were 7 problematic. And the Board instructed that the 8 regulations provide the parties and their 9 representatives are expected to conduct themselves 10 with honor, dignity and decorum as they should before 11 a court of law.
12 The Intervenor's actions in putting 13 forward baseless and irrelevant allegation of fraud on 14 the part of FENOC and the Staff did not conform with 15 the standard. We fully expect the parties will 16 conform their actions to this standard in all future 17 activities before this Board, including the upcoming 18 oral argument. The Board will not hesitate its power 19 to maintain decorum as necessary on supported 20 allegations, fraudulent conduct will not be tolerated.
21 So I'd just like to note the objection.
22 We haven't heard any this morning, there was plenty 23 yesterday. And we would not be surprised if it were 24 advanced. So we'd just like to note that.
25 JUDGE FROEHLICH: But his reference to the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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522 1 color of the outside coating, is that what you're 2 responding to?
3 JUDGE TRIKOUROS: I heard the word 4 whitewash. I didn't like hearing the word whitewash, 5 so I --
6 MR. MATTHEWS: I assume Mr. Lodge was 7 using layman's language to refer to the coating, the 8 sealant, that was placed on the shield building and 9 nothing else.
10 JUDGE TRIKOUROS: Thank you.
11 MR. MATTHEWS: At least at this point.
12 With respect to the issue about when the public became 13 aware that the top 20 feet of the shield building also 14 experienced the laminar cracking phenomenon, what's 15 absent is somehow how that is material new 16 information.
17 The material new information was earlier 18 and that was that the laminar cracking phenomenon 19 extended beyond the non-structural flutes that 20 extended into structural areas. It as some potential 21 impact on the structural integrity.
22 Mr. Burdick will address the Board's 23 questions with respect to environmental issues. But 24 what's absent from the discussion about how the 25 initial contention potentially addressed environmental NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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523 1 issues, NEPA issues, is that to address generic NEPA 2 issues requires a waiver. And that waiver has to be 3 supported by expert affidavit.
4 That applies to Category 1 issues. It 5 applies to the Category 2 issues for the reasons the 6 Intervenor cited that particular language, severe 7 accidents have generically addressed because of their 8 low probability.
9 We've got another conclusory statement 10 that the Shield Building cracking issues, operability 11 of the Shield Building somehow is within scope. But 12 again, no explanation how it ties to the scope of 13 license renewal. It's clearly a current operations 14 issue that the Staff and FirstEnergy have dealt with 15 and are in the process of restoring the licensing 16 basis within the current operating license.
17 The suggestion that the Root-Cause Report 18 doesn't consider the period from 1978 forward suggests 19 perhaps a lack of comprehension of the Root-Cause 20 Report. It clearly considered, by its own terms, 21 environmental circumstances for the entire period.
22 Including going back to the construction of the Shield 23 Building, so before the Shield Building itself 24 existed. Those issues were clearly considered in the 25 Root-Cause Report.
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524 1 We've heard that the Intervenors don't 2 like or don't agree with the Root-Cause Report. What 3 we haven't heard is why. What is flawed about the 4 Root-Cause Report? That's the Intervenors burden. If 5 they want to assert, if they want to use the Root-6 Cause Report to try to bootstrap their burden that the 7 laminar cracking phenomenon is time dependent.
8 An aging feature that should be within the 9 scope of license renewal, we would expect that they 10 would have some expert report addressing aging of 11 concrete structures. And somehow the laminar cracking 12 could be produced by environmental effects, or time 13 dependent effects.
14 Instead, they've chosen, deliberately 15 chosen, rather than present their own to attack 16 FENOC's. But what they haven't is provided specific 17 attacks. They just say conclude that it's not 18 credible.
19 We heard at the tail-end why the 20 contention was not moot and again, the reliance on 21 rather than advancing their own contention and 22 carrying their own contention they're pointing to the 23 fact that the Staff is still in its normal process of 24 review issuing RAIs and FENOC is in the process of 25 responding.
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525 1 It shows the exact opposite of what 2 Intervenors are trying to contend, that the Staff is, 3 in fact, doing a very thorough review and FENOC has 4 done a very thorough review within the scope of 5 current operations to address it. And addressed it 6 sufficiently and adequately in the context of the 7 license renewal application for the period of extended 8 operations.
9 I'll stop there. Thank you.
10 JUDGE FROEHLICH: Thank you. Did the NRC 11 Staff have an assignment?
12 MS. KANATAS: I don't believe so, Your 13 Honor. But if there's anything additional. But we 14 would like to address, certainly, the homework of the 15 Intervenors was to provide their environmental 16 concerns, which they've listed here as the fact that 17 RAIs are being asked. That the December 1st 18 reestablishing of the design-basis somehow raises 19 environmental concerns, as well as the SAMA issue.
20 As Mr. Matthews just stated, RAIs being 21 asked in and of itself does not give rise to an 22 adjudicatory proceeding on and issue. It is part of 23 the typical process, going back and forth. That the 24 reestablishing of the design-basis is not part of the 25 aging management plan. That's a current operating NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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526 1 issue.
2 There are items in the AMP about examining 3 the coating. But the actual reestablishing of the 4 design-basis is not part of the AMP. And it's a 5 current operating issue.
6 The fact that the root-cause is a 7 continuing phenomenon as being a concern, certainly 8 the root-cause in February 28th came to a conclusion.
9 The revised Root-Cause came to the same conclusion.
10 The Staff's June 21st Inspection Report 11 concluded that this was a reasonable conclusion. And 12 while Intervenors may disagree with that conclusion 13 they have not offered any support, evidence, 14 indication of what is wrong with the analysis, what 15 should have been done differently.
16 And, in any event, the root-cause, the 17 Staff's review is focused on the function of the 18 structure systems and components within the scope of 19 license renewal. So regardless of the aging mechanism 20 it's looking to see whether or not the aging effects 21 impact the function of those structures.
22 So the Shield Building AMP itself is a 23 monitoring AMP and it looks to see whether the cracks, 24 regardless of the cause, are going to grow and somehow 25 lead to an impairment of the function.
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527 1 So even if, you know, it was the Blizzard 2 of '77, which again, they've offered no support for, 3 how is that tied to the adequacy of the Shield 4 Building monitoring AMP as it exists on August 16th, 5 which is still yet to be challenged.
6 In terms of the SAMAs, yes the SAMA is a 7 Category 2 issue. There is no waiver required for the 8 Category 2 issue. There is a waiver required for the 9 Category 1 issue of the severe accident, postulated 10 accident, which is already outlined. And the severe 11 accident as well, determination in Table B-1, and no 12 they have not submitted or been granted a waiver for 13 challenging that.
14 The Shield Building is a design-basis 15 issue. If the Shield Building was not functioning the 16 plant would shut down. And so it is functioning as 17 operable, and that includes being able to withstand a 18 design basis accident. So there's no indication from 19 Intervenors of how the Category 1 finding in the GEIS 20 is somehow challenged.
21 In terms of the SAMA, as my colleague 22 Brian Harris mentioned several times yesterday, the 23 SAMA Analysis does not model the Shield Building. The 24 Intervenors give no indication of how the SAMA would 25 be impacted or found to be unreasonable under the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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528 1 Staff's judgement.
2 So again, it's not enough to just claim 3 that something is wrong with an analysis. You have to 4 give support for what is wrong. And what in the 5 regulations in Part 51 requires the analysis to even 6 be in the Environmental Report. As well as pointing 7 out what's wrong with the analysis that exists. So 8 that's --
9 JUDGE FROEHLICH: Thank you.
10 MR. MATTHEWS: Judge Froehlich?
11 JUDGE FROEHLICH: Yes, sure.
12 MR. MATTHEWS: I just wanted to ask a 13 clarifying question. You know, our homework, as I 14 understood our homework, was to see where the 15 Intervenors had cited this as an environmental 16 contention. And I failed to note in our homework that 17 we did review the initial pleading and did not find 18 any cite to the environmental report.
19 And this may be my error, but I understand 20 the initial round is to report back on our homework 21 and I raise the question because the Board had a 22 pending question about the environmental aspects of 23 the contention.
24 And Mr. Burdick is going to prepare to 25 argue this for us at the Board. If this hasn't NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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529 1 addressed it I'd like to give Mr. Burdick the, we'd 2 like to do it whenever is the right time to do it.
3 JUDGE TRIKOUROS: Let's do it now.
4 MR. MATTHEWS: All right. Steve.
5 MR. BURDICK: Great, thank you, Tim. This 6 is Steven Burdick for the Applicant. As Mr. Matthews 7 has mentioned the application itself, or the 8 Contention itself, does not address, or identify or 9 cite to the application. I would point the Board back 10 to the actual wording of the original contention.
11 And that is found on Page 11 of the 12 Intervenors' original contention. And in the wording 13 of that contention there's no reference to the 14 environmental issues whatsoever. Instead the wording 15 of the contention refers to whether the condition of 16 the Shield Building precludes safe operation of the 17 reactor.
18 And that is clearly a safety issue. And 19 I believe Judge Trikouros was alluding to that if that 20 provides a link to an environmental issue then every 21 safety question would do so as well. And that is 22 simply not the case. The wording of this contention 23 does not raise any environmental issues.
24 We agree that Intervenors though have 25 pointed to, in a very cursory fashion, a couple of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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530 1 environmental issues in the original contention. They 2 consist of just a few sentences, they're not 3 supported. They don't identify the application, or 4 challenge the application. And that's simply 5 insufficient here.
6 In the remarks this morning the 7 Intervenors quote from the Generic Environmental 8 Impact Statement and much of that language is also 9 found in 10 CFR Part 51. And I quote from it's Part 10 51(a) Appendix B, Table B-1, where regulations 11 identify which environmental issues are Category 1 and 12 Category issues.
13 And there as well it states that the 14 probability of weighted consequences of atmospheric 15 releases, fallout onto open bodies of water, releases 16 to ground water and societal and economic impacts from 17 severe accidents are small for all plants.
18 So that determination itself is a generic 19 determination that was made through rulemaking. And 20 that determination that the impacts from severe 21 accidents are small, cannot be challenged in this 22 proceeding, absent some sort of a waiver, and the 23 Intervenors have submitted no such waiver.
24 And I would also on this issue point the 25 Board back to its own decision in LBP-11-13, in ruling NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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531 1 on the original Contention 4, the Board addressed this 2 specific question and it's at Slip Opinion at 25 and 3 rejected a similar attempt by Intervenors to challenge 4 that generic determination for small impacts for 5 severe accidents.
6 And similar to that finding, the finding 7 here as well should be that that can not be challenged 8 here today.
9 With respect to severe accident mitigation 10 alternatives or the SAMA Analysis, here there's two 11 fundamental deficiencies in the Intervenors' 12 contention. First of all their argument with respect 13 to SAMA issues consists of one cursory sentence. And 14 I would point the Board to the original Contention at 15 Page 26.
16 I quote, "But this very risk, the 17 potential loss of Shield Building safety and security 18 function over time is exactly the kind of analysis 19 that should be included in FENOC's Handling Analyses 20 regarding the Davis-Besse license extension."
21 That is the totality of their argument on 22 SAMA issues. And as we point out in our answer, at 23 Page 31, that that is simply notice pleading and the 24 Commission has said that that sort of notice pleading 25 cannot support admissible contention here at the NRC.
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532 1 The other deficiency, as we've already 2 mentioned, is that with respect to all of their 3 environmental issues, but especially with respect to 4 the SAMA issue, they have identified no challenge to 5 the application itself. Environmental Report, Section 6 4.20, provides a section on SAMA analyses.
7 And then Environmental Reports, Appendix 8 E or Echo, provides the SAMA evaluation itself.
9 Intervenors have not referenced that or challenged any 10 information in that analysis whatsoever.
11 And that's contrary to 10 CFR, Section 12 2.309(f)(1)(vi), which requires them to specifically 13 identify which portions of the application they 14 challenge and to provide sufficient information 15 challenging it. So for all of these reasons they 16 providing no environmental contention here whatsoever.
17 JUDGE FROEHLICH: Thank you.
18 MR. LODGE: I'd definitely like to 19 respond. This gets into a problem I have that has 20 dogged the intervention from its inception. Which is 21 that the other parties, but especially FirstEnergy, 22 seem to continually conflate trial on the merits with 23 the type of showing that is required for admissibility 24 of a contention. Once again I'm sitting here hearing 25 that it is our burden and obligation as Intervenors to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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533 1 have effectively enormously overwhelming, convincing 2 proof on day one when a contention is filed.
3 That isn't what the law requires. This 4 Panel knows very well having rendered its earlier 5 rulings in this case that that isn't what is required.
6 There's a strong threshold showing and essentially we 7 don't have to have enough evidence to refute a motion 8 for summary disposition January 10th of 2012, or 9 today.
10 JUDGE FROEHLICH: Thank you.
11 MR. LODGE: I'm sorry, I have a couple 12 other things.
13 JUDGE FROEHLICH: All right.
14 MR. LODGE: When I sit here doing a search 15 for the term for the phrase Environmental Report it is 16 mentioned at several different terms in our initiating 17 motion, of January 10th.
18 Furthermore, one of the specific 19 references to the Environmental Report includes the 20 statements from it that there's, at 20.14, another cut 21 is to be made into the Shield Building, which we state 22 as of January 10th, is of concern since the initial 23 cracking may have had some relation, structural 24 aspects of the cracking at least, to the most recent 25 opening that was made in 2011.
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534 1 And we also have a few other direct 2 responses to what the Staff and the Utility have 3 stated from Mr. Kamps.
4 MR. KAMPS: These are direct responses to 5 issues raised. In terms of multiple root causes, 6 these were extensively laid out in our July 23rd 7 filing. This filing is based upon revelations by 8 Public Performance International. This is the 9 subcontractor that FirstEnergy contracted to look into 10 the root cause.
11 So once, on May 24th when this was 12 published in the NRC ADAMS system and we finally got 13 ahold of this revised root-cause assessment, we went 14 through the 27 areas in that report where PII 15 responded to NRC questioning of its root-cause 16 assessment. And, in fact, most of those 27 areas are 17 alternative root-causes that the NRC was asking about.
18 Not us. That's how we learned about them.
19 And some of them were referred to as 20 second most likely. So the top-down water 21 infiltration mechanism, here's a quick rundown of some 22 of them. Some of the 27. The top-down water 23 infiltration mechanism, which is related to dome 24 parapet cracking. Related to standing water. Related 25 to melting snow and ice that flows down the sidewall NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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535 1 of the building. This was referred to by NRC staff as 2 the second most likely root cause.
3 JUDGE FROEHLICH: Okay, I'm going to stop 4 you here. I think we'll get to the 4th Motion to 5 Amend, which is I believe where this information has 6 been put forward by the Intervenors in due time. I'd 7 like at this point to just conclude the report backs 8 from where we left off last night. And I'd like to 9 also give the parties our report back on the 10 assignments that we were given. Okay.
11 At the conclusion of yesterday's session 12 I'd like to report that the Board has taken a very 13 close look at the Commission's regulations in depth.
14 Especially 2.309(f)(1)(i) through (vi) which would be 15 the regulation that will govern the decision on the 16 admissibility of the new Contention 5.
17 And we also spent a good deal of time 18 going over the other applicable sections of the 19 Commission's regulations and we'll be moving forward 20 with our questions today going into the, I guess, 21 level and the amount of evidence that must be put 22 forward in a contention.
23 Looking especially to what alleged facts 24 or expert opinions support that contention. And there 25 was a second item, which wasn't an assignment from the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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536 1 parties but did transpire over the evening hours. Our 2 law clerk, Matthew Flyntz, received an email which 3 attached a statement by Congressman Kucinich dated 4 November 5th.
5 The Board has received this and will treat 6 it as a written limited appearance statement pursuant 7 to 10 CFR 2.315(a) and put it in the public file. I 8 believe it was also served with the hearing docket and 9 so it should make mass distribution. I just wanted to 10 note that for the record.
11 And with that I think we can begin today's 12 work.
13 JUDGE TRIKOUROS: Let me start out with a 14 question regarding these breeches to the containment 15 that are associated with replacement of large 16 components. For the Intervenors, your contention 17 relates to, it uses the words "age related" referring 18 to the cracks. It doesn't refer to any containment 19 breeches that are either occurred in the past or will 20 occur in the future, in terms of wording of the 21 contention.
22 I mean, clearly you do discuss the plans 23 to replace the steam generators in 2014. But your 24 contention doesn't seem to indicate that you believe 25 that the cracks are related to replacement of large NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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537 1 components. What is the connection here? I'm missing 2 something. So maybe you can help me understand what 3 the importance of those breeches is to your position.
4 And I would just add to that if there's 5 any factual basis that one could conclude the breeches 6 are an important factor in what happened in these 7 cracks, I'd like to understand.
8 MR. LODGE: Thank you, Judge Trikouros.
9 And thank you for the opportunity to brief you 10 further. I just want to point out a couple of things.
11 I think procedurally if the later amendments were to 12 be accepted by the Board, correct me if I'm wrong, but 13 I would imagine that it is a relation back feature, 14 i.e., the later amendments are effectively collapsed 15 into and become the body of the contention pleading.
16 So we believe we did address the potential 17 for enormous accident with some of our later materials 18 Mr. Kamps will detail the FOIA responses. But I would 19 also like to point out, and let me look at what page 20 number, but in the initial January 10th motion filing, 21 Page 6, we alleged that, "similarly the potential for 22 severe accidents might be implicated were the cracking 23 to be accepted without any repair or other mitigation 24 such as replacement of the entire Shield Building."
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538 1 believe that that indeed raise, at the January 10th 2 date, the potential for considerable accident problem.
3 That's all I have. I will defer to Mr.
4 Kamps.
5 MR. KAMPS: Yes, in the FOIA Response 6 Document, FOIA Response Number 1, Appendix B, it was 7 one of the first documents in that 50 plus document 8 response to us by the NRC. An NRC staffer, Pete 9 Hernandez I believe, was the one who pointed out that 10 Battelle, Sargent and Lundy, both of those were the 11 contractors hired to perform the hydro demolition for 12 the reactor lid swap out. As well as FirstEnergy and 13 even NRC Staff were of the opinion in the first days 14 of the discovery of the cracking, that the hydro 15 demolition process itself had caused the cracking.
16 And we have put this in our filings. And 17 the significance of that for us was that if the 18 companies that were hired to perform the hydro 19 demolition in the first days were willing to admit 20 that it was likely the cause then that would add 21 credence to that. So there is, of course, later when 22 the Shield Building was examined further the cracking 23 was found across the Shield Building.
24 But I think that the initial response by 25 all of those companies and the Agency shows that there NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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539 1 is credibility to be concerned about the impact of 2 hydro demolition on the Shield Building, its potential 3 to cause cracking.
4 JUDGE TRIKOUROS: Okay, but, I mean, 5 clearly when you breech the containment in order to do 6 a large component replacement one would think about 7 such things in the whole process of regulatory review.
8 But in the end that was determined 9 officially to not be the cause. I mean, so you're 10 pointing to sort of points in time where somebody had 11 a question during the regulatory review. I'm sure 12 there were hundreds of those, thousands of those 13 perhaps. I don't know.
14 But it's a regulatory review. They're 15 looking at every possibility, asking questions. I'm 16 sure there are many emails that go back and forth, et 17 cetera, et cetera. But in the end, after all of that, 18 they reached a consensus. The consensus was in the 19 February and May Cause Reports. And the Staff asked 20 many questions regarding those.
21 So I don't understand, if you're bringing 22 up some of those intermediate emails and discussions, 23 I don't understand what the relevance of that is?
24 MR. KAMPS: Well as you've probably seen 25 we're very skeptical of the Blizzard of 1978 being the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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540 1 sole root-cause and that's why our July 23rd, 2012 2 filing listed PII's responses to questions from the 3 NRC that list 20 other potential root causes. The NRC 4 had strong questions, as we've acknowledged, but the 5 problem is they did not require strong answers in 6 response.
7 So there are vying root-causes. It was 8 admitted by FirstEnergy's contractors, and 9 FirstEnergy, at certain points that not only were 10 there multiple potential root causes but they probably 11 were acting in combination.
12 And we've also in our filings indicated 13 multiple forms of cracking. And that's been another 14 theme of this entire year plus, is that FirstEnergy 15 and too often NRC, focus, my phrase for it is red 16 herring focus like a laser beam. It's a laser beam 17 red herring focus on sub laminar cracking. There's 18 many forms of cracking that we've detailed in our 19 filings.
20 And so different root causes acting in 21 combination causing multiple forms of cracking. And 22 as you seem from our contention we don't limit 23 ourselves to sub surface laminar cracking. We are 24 concerned about that. But we also are very concerned 25 about a half dozen categories of cracking. All of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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541 1 which, added together, and a small load as Abdul 2 Sheikh refers to, could be what fails the Shield 3 Building.
4 JUDGE TRIKOUROS: Well help me with 5 understand the connection to the license renewal. In 6 the license renewal there is a Shield Building AMP.
7 Now, that Shield Building AMP specifically discusses 8 inspections that will be performed on some frequency 9 that will look for cracks.
10 I looked at that attachment, I didn't see 11 any limitation to laminar cracks. It looked like it 12 just was going to look for cracks of any type.
13 So how do, the comments you just made, how 14 do they relate then to the license renewal 15 application?
16 MR. KAMPS: Well I'm glad you brought up 17 the Aging Management Plan, because yesterday 18 FirstEnergy tried to deny an aging related nature to 19 the cracking. I think the Aging Management Plan 20 itself is an indication that the cracking is likely 21 very potentially aging related. So I think that puts 22 that to rest.
23 But we have expressed in our filings up to 24 this point our concern with the infrequency of those 25 Aging Management Plan tests. The very small sample NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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542 1 size. And as recently as August 16th, I believe if 2 not later, the NRC, again in requests for additional 3 information, asks questions. How can you justify this 4 small sample size? How can you justify where you're 5 taking the bore holes?
6 And, again, to get a direct response to 7 your question, the sampling on an infrequent basis of 8 a small sample size, is focused mostly where, again, 9 red herring laser focus, like a laser beam, but it's 10 a red herring laser beam focus on sub surface laminar 11 cracking in the places that FirstEnergy decides to 12 focus on, which is the shoulders, the flue shoulders, 13 the upper 20 feet and the steam line penetrations.
14 That's where they are focused.
15 What about the rest of the Shield 16 Building? This is a very large structure. It's 280 17 feet tall, it's how far in diameter. That is a huge 18 surface and they have a focus on a very small fraction 19 of that structure. We're concerned about the entire 20 structure.
21 JUDGE TRIKOUROS: I'd like to hear what 22 the other parties say about that.
23 MR. MATTHEWS: Thank you, Judge Trikouros.
24 This is Tim Matthews. First I'd just observe it's our 25 understanding we are addressing the original NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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543 1 contention here. Most of Mr. Kamps passionate 2 argument seems to relate to the subsequent filings, 3 not to the initial contention. But setting that 4 aside.
5 Containment breeches, I think was your 6 original question, Judge Trikouros?
7 JUDGE TRIKOUROS: Right.
8 MR. MATTHEWS: What the Intervenors have 9 not done, they point to planned containment 10 penetrations in the future, but that they don't 11 somehow suggest that penetrations through the 12 containment somehow relate to laminar cracking. Or, 13 more importantly somehow, are an age-related feature 14 of the plant.
15 Future plant penetrations to the 16 containment are addressed, both as current operations 17 and future ones during the period of extended 18 operation are identified in the license renewal 19 application. They are considered. There's no 20 challenge to those sections. There's no discussion 21 about that. There's no suggestion that those are 22 somehow inadequately addressed for the period of 23 extended operations.
24 Further, to the extent that these issues 25 would be addressed under the structure's monitoring NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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544 1 AMP, I would expect if they had a concern they would 2 have addressed the structure's monitoring AMP in their 3 initial contention. I agree and would advance that 4 once there was a Shield Building specific AMP the 5 contention was mooted as a matter of law.
6 But the contention was inadequate on its 7 face to start with for failure to address the 8 structure's AMP and somehow pointing out either some 9 time-dependent aspect related to the containment 10 penetrations or the inadequacy of the AMP to address 11 them.
12 The Shield Building, just for clarity, 13 there are a couple of programs that address cracking 14 at Davis-Besse. During the period of current 15 operations there's the maintenance rule and the 16 inspections that are done there. For the period of 17 extended operations there is the structure's AMP. And 18 then added on to that, because of the discovery of sub 19 surface laminar cracking phenomenon, FirstEnergy 20 conservatively added a Shield Building AMP.
21 That Shield Building does not concede or 22 somehow create any inference that there is a time 23 related or time dependent aspect. It is a monitoring 24 AMP that FirstEnergy conservatively put in to detect 25 the potential for time dependent impacts on the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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545 1 laminar cracking.
2 The reality is FirstEnergy understands, 3 and the NRC has reviewed it, that the cracking 4 occurred in 1978. The cracking has existed for 5 several decades. There's ample evidence that suggests 6 there is no time dependent or aging feature or aspect 7 of it.
8 But what's more important as, Mr. Lodge 9 points out, his burden is not to prove it by summary 10 disposition standard, we're not suggesting that. He 11 has to produce something. There is, in contention of 12 admissibility, there is a burden of production. And 13 there is some, which seems to have been defined by the 14 Commission recently, with respect to Contention 1 and 15 4 that it is more than notice pleading. Can you 16 measure it with a yardstick? The Commission expects 17 that the Board will identify that in their sound 18 judgement.
19 But it is more than notice pleading and in 20 this case Intervenors have produced nothing.
21 JUDGE TRIKOUROS: Mr. Kamps said that the 22 Shield Building AMP is focused like a laser beam, I 23 think he said.
24 MR. KAMPS: A red herring laser beam.
25 JUDGE TRIKOUROS: A red herring laser NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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546 1 beam, to the laminar cracking. Is that correct?
2 MR. MATTHEWS: The structure's monitoring 3 AMP is created to address the other kinds of aging 4 mechanisms, such as cracking. The other cracking 5 phenomenon that the Intervenors point to.
6 There has been no inspection that the 7 Intervenors point, and no inspection of which I'm 8 aware that suggests that those other kinds of cracking 9 or aging features, aging aspects of the Shield 10 Building, are somehow beyond the scope or the ability 11 of the Structures AMP to address.
12 The Structures AMP has been in place, it 13 has never been challenged in this proceeding. The 14 Intervenors have not somehow suggested that it is 15 inadequate.
16 So in answer to your question, the 17 specific answer to your question, the Shield Building 18 AMP was added to the Structures AMP to specifically 19 address sub surface laminar cracking phenomenon and to 20 look for the potential that aging effects could 21 somehow affect the extent of that cracking.
22 I'm sorry it also looks at the coating.
23 The root-cause, if you look at the root-cause, the 24 document speaks for itself. It identifies a root-25 cause and three contributing causes. The absence of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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547 1 a coating is identified as a root-cause because that's 2 something that the licensee has the ability to do 3 something about, the way root causes are done.
4 The other three are existing features.
5 The stress concentrations at the main steam line 6 cutouts, because of the more dense rebar there and in 7 the upper 20 feet.
8 JUDGE FROEHLICH: Could I just ask a 9 related question of the Commission Staff. In 10 preparing your answer, the first answer to the 11 original contention, you had suggested rewording the 12 contention as a contention of omission. Does that 13 suggest that the Staff at that time saw, or continues 14 to see, cracking as an age related phenomenon that 15 should be addressed by an AMP?
16 MS. KANATAS: Thank you, Your Honor. The 17 Staff's position in its February 6th answer was that 18 at that time there was not an AMP identifying how it 19 would manage any cracks associated with this unique 20 Shield Building cracking discovered on October 10th.
21 We had asked the RAIs, which did ask about the 22 Structures Monitoring AMP, as Mr. Matthews indicated, 23 that was an existing AMP but it was not clear how any 24 aging effects of this particular Shield Building 25 cracking discovered in October would be identified.
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548 1 So Staff essentially said at this point 2 there is not a discussion about this particular, any 3 aging effects, we had not yet determined whether or 4 not the mechanism of the cracking was aging related 5 but we were concerned that there might be, regardless 6 of the cause, some aging effect associated with the 7 cracking as it was going forward. And that was the 8 basis of our position.
9 And if I may, I mean in terms of 10 addressing the questions in terms of Judge Trikouras' 11 questions. As Mr. Matthews pointed out the Structures 12 Monitoring AMP exists to address the other types of 13 cracking.
14 In terms of the claims raised by the 15 Intervenors about the steam generator replacement, we 16 addressed those in our February 6th answer and 17 indicated why those claims were not only speculative 18 and not supported but also any repairs to the Shield 19 Building resulting from those steam generator 20 replacements in 2014 have to be done such that the 21 Shield Building continues to meet its licensing basis.
22 So any suggestions that it wouldn't meet the licensing 23 basis is not a license renewal concern.
24 And then in terms of, just if I may, that 25 this claim that the 4th Supplement, which went through NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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549 1 the PII Revised Report, somehow indicates that the 2 Staff questions the revised root-cause or the PII 3 Revised conclusions. As we pointed out, the 27 4 questions that are outlined in the 4th Supplement 5 relate to questions raised in a March 2012 onsite 6 inspection.
7 And those questions were addressed by PII 8 to the NRC's satisfaction. And so in an October 2nd, 9 2012 inspection report, which basically the whole 10 purpose, it says, "during the current inspection the 11 NRC Inspectors reviewed the changes in the Revised 12 Root-Cause Report along with the contractor's Revised 13 Supporting Report," Root Cause Assessment, Davis-Besse 14 Shield Building Laminar Cracking, that is the PII 15 report, and the inspection report concludes, "based on 16 the results of this inspection, no findings of 17 significance were identified. The inspectors 18 determined that the changes did not effect previous 19 NRC conclusions regarding the root-cause efforts."
20 So I'm not sure what --
21 JUDGE TRIKOUROS: But let me ask you the 22 same question I asked earlier. Is there a connection, 23 let's assume that there was some other root-cause.
24 How does that relate to the license renewal programs?
25 Is there any relationship? Does it invalidate the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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550 1 Structures AMP and the Shield Building AMP in some 2 manner? What is the connection? Is there a 3 connection?
4 MS. KANATAS: The Staff's position is that 5 it would not invalidate the Shield Building Monitoring 6 AMP if there was a different root-cause. As the 7 Shield Building Monitoring AMP is a monitoring AMP 8 regardless of the cause, it's going to look for going 9 forward if those cracks are going to grow.
10 And as I stated, you know, our review is 11 based on, regardless of the mechanism, we're looking 12 at functionality. Aging effects impacting 13 functionality. So that certainly if the Intervenors 14 want to draw that connection and indicate how they 15 feel it is a license renewal concern the Staff is more 16 than happy to discuss that. But it's not clear from 17 any of these filings how there is that connection.
18 JUDGE TRIKOUROS: Okay. Mr. Matthews, 19 just one final point. In the Shield Building AMP 20 inspections, are they going to ignore any other cracks 21 that they find?
22 MR. MATTHEWS: Absolutely not, Judge 23 Trikouros, they're going to evaluate any evidence that 24 they find. And they're not suspending the inspections 25 that will be done under the Structures AMP. That all NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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551 1 continues.
2 Evidence that they find of other 3 phenomenon that they find during the Shield Building 4 AMP inspection, certainly if the Shield Building 5 indicates contrary indications or unexpected 6 indications they're going to be documented in 7 condition reports and evaluated under the corrective 8 action program. They're all going to be evaluated.
9 Your question, Judge Trikouros, is exactly 10 what the Intervenors, that was their burden to 11 address. Somehow suggesting that if the root-cause 12 was -- This is pretty root-cause. Their burden was to 13 show some time-dependent feature that wasn't addressed 14 by the application. They didn't suggest, prove, show, 15 even advance the burden of production to show that 16 there was some time-dependent aspect.
17 They point to these penetrations but don't 18 tie it up to some aging mechanism. So exactly right 19 on question, did they meet that burden, clearly they 20 did not. If the root-cause was something other than 21 the Blizzard of '78 together with the absence of 22 coatings and the stress concentrations, if there was 23 some other mechanisms it still wouldn't suggest that 24 it's age related.
25 If there was some other, if their NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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552 1 speculation somehow is correct that the penetrations 2 somehow were the root-cause of the cracking, that 3 still wouldn't suggest an aging feature of the plant.
4 But further, even if it did, the Shield 5 Building AMP is fully adequate to address it. But 6 more importantly they have not suggested any basis for 7 why the Shield Building AMP, the Monitoring AMP, would 8 be inadequate to address it or for the other -- I'm 9 restraining myself.
10 For the other kinds of cracking phenomenon 11 that they suggest, they have not suggested that the 12 Structures AMP is somehow inadequate to address those.
13 Or that it's somehow, the kinds of 14 cracking observed at Davis-Besse are unique to that 15 facility. The kinds of cracking at that facility are 16 what is expected for a structure of its age.
17 JUDGE TRIKOUROS: But do you understand 18 our problem? We're looking at that connection.
19 MR. LODGE: I'm going to try to provide 20 it. The reason that the root cause explanation at 21 this point appears inadequate to the Intervenors is 22 because the root cause is pronounced, deemed cured by 23 a combination of paint. Painting and thus sealing the 24 existing, or at least the known cracks, in tandem with 25 an inspection regime which we think is neither strict NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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553 1 nor comprehensive.
2 There's an issue of fact that was created 3 by two of the NRC engineering staff who have said in 4 rather unmistakable language that in the event of a 5 minor earthquake or an excessive heating scenario, 6 there's constant heat within the Shield Building when 7 the reactor's operating. In the event of sustained 8 high heat events, unusual operation of the reactor, or 9 an external cause such as a minor earthquake up to 90 10 percent of the Shield Building will collapse.
11 The two layers of rebar will not work to 12 sustain the Shield Building beyond, apparently, about 13 a three or four inch thickness, that will compromise 14 the building.
15 JUDGE TRIKOUROS: How does that relate to 16 license renewal? The problem you're describing is in 17 effect today, correct?
18 MR. LODGE: Correct.
19 JUDGE TRIKOUROS: So how does this relate 20 to license renewal?
21 MR. LODGE: The risk of accident is 22 greater. Not meaning to be impertinent but how does 23 the relaxed, by our standard, relaxed AMP address the 24 problem of potential 90 percent collapse? It seems to 25 pretend that the problem doesn't exist, or if it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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554 1 exists it may be discovered in some due time by 2 comparatively few random core drillings around the 3 Shield Building.
4 This is a license renewal problem. No 5 matter, I would be gravely concerned since the Utility 6 yesterday admitted an aging management tie in and the 7 Staff has today. It certainly seems to me that this 8 is of licensing renewal concern.
9 JUDGE TRIKOUROS: Well, the issue you're 10 raising is basically an attack, if you will, on the 11 adequacy of the current licensing basis for the Shield 12 Building, right? Current design-basis for the Shield 13 Building? Current.
14 MR. LODGE: Well -- I'm sorry. Please 15 continue.
16 JUDGE TRIKOUROS: And we do want to 17 discuss that. We do want to discuss the December 18 analysis that's forthcoming from the Applicant, but 19 only to the extent that the license renewal 20 application programs are required to assure that the 21 current licensing basis is adequately protected during 22 the license renewal period. Only that connection is, 23 that is the only connection that I see.
24 So any questions you have regarding the 25 adequacy of the current licensing basis is separate NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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555 1 from the license renewal application. Once that's 2 resolved and whatever the current licensing basis 3 becomes, or is, then one would examine the license 4 renewal programs to make they will in fact continue 5 that, to support that.
6 But until then it's out of the scope of 7 the license renewal. So I'm not sure where you're 8 going with this in terms of attacking the license 9 renewal application.
10 MR. LODGE: Well currently the NRC Staff 11 has deemed it to be the circumstance that the Shield 12 Building is out of conformance, violates, does not 13 meet the licensing basis. And if anything there's an 14 argument that lies in your comments, sir, that we have 15 petitioned early as opposed to late, on the timeliness 16 issue.
17 If we are awaiting the further action by 18 the Utility, the response in December, there's 19 certainly some possibility it will not address what 20 the Intervenors see as being a very serious and 21 unaddressed problem. And issue of fact articulated by 22 the engineers.
23 JUDGE TRIKOUROS: Well let me, I just want 24 you to understand where we're coming from.
25 MR. LODGE: Yes.
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556 1 JUDGE TRIKOUROS: If you were to say right 2 now the current licensing basis for the Shield 3 Building is inadequate, there are mechanisms that you 4 have to file those concerns, as you know, current 5 operational issues can be discussed in, you know, 6 2.206 for example.
7 But if you were to say that the license 8 renewal application, as it exists today, is inadequate 9 to preserve the current licensing basis then that 10 would be within the scope of this proceeding. Which 11 are you saying?
12 MR. LODGE: The latter.
13 JUDGE TRIKOUROS: And please help me 14 understand how you're doing that? I mean your 15 Contention was on target in the sense that it implied 16 an omission, which the Staff agreed with. And the 17 Shield Building AMP was submitted on that basis.
18 Well, the Shield Building AMP was submitted regardless 19 of the basis. So where are we now with respect to 20 that?
21 MR. LODGE: We are four and a half years 22 away, which isn't a very long time in terms of 23 management of the physical plan for these large 24 facilities. We are in a circumstance where if the 25 proposed management plan does not seem to resolve the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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557 1 issues raised by the NRC's own staff the circumstance 2 is not going to change by the time the 20 year 3 extension period would commence in 2017.
4 JUDGE TRIKOUROS: But the issues raised by 5 the Staff were evaluated by the Staff and the Staff 6 made a conclusion. That if you want to attack their 7 conclusion, because you have independent information, 8 that's one thing. But you're not doing that.
9 MR. LODGE: Sir, we found nothing in the 10 NRC's documents that refutes the finding of those two 11 engineers, the calculations of those two engineers.
12 JUDGE FROEHLICH: I think I'd like to hear 13 from the Staff. I think putting its best light, the 14 Intervenors argument here is based in part on 15 statements by NRC Staff Engineers. And I think they 16 are taking these statements as alleged facts under the 17 contention of admissibility requirements to support 18 their Contention.
19 Perhaps Staff could put this in context or 20 explain whether this is an appropriate thing to do?
21 MS. KANATAS: Well the Staff would very 22 much appreciate that and to essentially correct the 23 record from both statements made yesterday and today 24 by Mr. Kamps and Mr. Lodge.
25 So two things that I would like to discuss NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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558 1 is essentially the smoking gun, I believe is how Mr.
2 Kamps referred to an email, which is also what is 3 referenced here by Mr. Lodge. And that's FOIA 4 Document B-26 in the 5th Supplement, but it was also 5 referenced in the 4th Supplement on July 23rd.
6 It's an email from late November which the 7 Intervenors are pointing to for the proposition that 8 the Shield Building is prone to failure in the form of 9 up to 90 percent collapse of its rebar and concrete.
10 This is not a smoking gun and it's not related to 11 license renewal, as Judge Trikouros just outlined.
12 Instead, it is exactly the type of 13 internal deliberative email document between staff 14 members based on a preliminary review of the 15 licensee's calculations in support of restart of the 16 plant. After that email was sent Mr. Sheikh, the 17 staff member that Intervenors are referring to, met 18 twice with the licensee and discussed his concerns in 19 detail.
20 The licensee updated their calculations to 21 address the concern. Specifically they updated the 22 calculation to better represent the locations that 23 contained laminar cracking and identified a method to 24 quantify the bond strength of the rebar in the cracked 25 regions. Using those assumptions the licensee NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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559 1 conservatively assumed the outer concrete was 2 ineffective in the bending strength calculations and 3 the resulting calculations were found to be acceptable 4 by the NRC Staff.
5 And in any event, the citation to this 6 really gets at a current operating concern, not a 7 license renewal concern.
8 There was also a concern about 9 calculations that were submitted December 5th, vice in 10 December 1st or December 2nd, yesterday and I just 11 wanted to address that. There was some sort of 12 insinuation, I believe, that Staff did not in fact did 13 not have reasonable assurance about restart because we 14 did not have the calculation. And please correct me 15 if I'm wrong, Mr. Kamps.
16 I basically said you raised a concern 17 about the December 5th calculation in relation to the 18 December 2nd restart.
19 MR. KAMPS: Yes.
20 MS. KANATAS: And I wanted to address 21 that. So, as the Intervenors pointed out in their 5th 22 Supplement, there were NRC Staff members onsite at 23 Davis-Besse on December 1st and 2nd reviewing 24 calculations to support restart. One of those was the 25 calculation, I will refer to it, CCSS-099.20056 Rev.
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560 1 1, which is the calculation Mr. Kamps was referencing.
2 On December 1st the licensee identified an 3 error in that calculation and they documented this in 4 a condition report. The corrective action included 5 using Reg Guide 1.76 to lower the tornado differential 6 pressure in accordance with Reg Guide 1.76. In doing 7 so the licensee demonstrated Shield Building 8 functionality during a design-basis tornado applicable 9 to the site.
10 And the Staff reviewed that revision of 11 Rev 1 of the calculation on December 1st, with the 12 Condition Report, and determined that the licensee had 13 provided reasonable assurance that the Shield Building 14 was operable.
15 The root cause identified this as a non-16 conforming issue in that the Shield Building was 17 operable but non-conforming to the design-basis. And 18 that root cause was available on February 28th and the 19 December 5th date of the calculation was noted on Page 20 69 of the Root-Cause Report.
21 So Mr. Kamps claims, while the date of the 22 5th is after the 2nd, the December 5th Revision is not 23 materially different than the December 1st Revision of 24 the calculation with Condition Report that supported 25 the operability determination made.
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561 1 In any event, the operability of the 2 Shield Building now is not a license renewal concern 3 but certainly we do want to, for the record, clarify 4 both this claimed 90 percent failure as well as the 5 calculations in support of restart.
6 MR. KAMPS: I would like to respond to 7 that if I could.
8 MR. MATTHEWS: Maybe the Applicant could 9 have an opportunity to address it as well and then you 10 can respond to both, if that's acceptable to the 11 Board?
12 JUDGE FROEHLICH: It'd probably be better 13 if we heard from the Applicant and then you'll be able 14 to respond to both. Mr. Matthews?
15 MR. MATTHEWS: Thank you, Judge Froehlich.
16 I won't repeat all of what Ms. Kanatas said, we accept 17 all of it, endorse it and would say those same things.
18 The key point is that the Intervenors 19 selectively, knowing that the calculations have been 20 changed, because they are in the Root-Cause Report as 21 references 10.20 and .22 at Page 74. They indicate 22 that they have been revised, Rev 2 and Rev 3.
23 Intervenors cite questions, probing 24 questions of the Staff early in the inspection. As 25 you've seen the calculations were changed to address NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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562 1 concerns of the Staff making them even more 2 conservative. Going to the current licensing basis 3 question of the structural integrity of the Shield 4 Building. Those were addressed.
5 So beyond adding those citations, I don't 6 have much more to add to that. But it's fanciful, the 7 purported basis. What we're seeing is the absence of 8 their own basis. It's just harping on the adequacy of 9 the Staff's review or FENOC's initial work.
10 I would like the opportunity to just point 11 out that I'm not aware of any admission that I made, 12 or my co-counsel at the table made, by FENOC 13 suggesting that somehow there was some time dependent 14 or aging feature of the sub surface laminar cracking 15 phenomenon. There is none. That is our position. We 16 have unambiguous about that.
17 And to the extent we have added a Shield 18 Building AMP, it is conservative to address the 19 potential that there could be some aging aspect, some 20 impact of aging, on the cracking itself that hasn't 21 manifested itself since 1978. It's a pretty 22 conservative action.
23 And finally, the suggestion that there has 24 been some challenge to the Shield Building AMP is 25 fanciful. Certainly not in the original contention as NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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563 1 we're talking about, because it didn't exist.
2 But Mr. Lodge pointed to the main 3 arguments advanced in attack of the Shield Building 4 AMP. They were that the sealant somehow is not 5 adequate. And the inspection regime is not 6 sufficiently strict or they make allegations about the 7 testing frequency or the testing methodology in their 8 pleadings. That's being kind.
9 There's no basis to say why the test 10 inspection acceptance criteria or the frequency that 11 they are using or the inspection of the coating is 12 inadequate. Or the type of coating is inadequate.
13 They point to some RAIs by the Staff asking FENOC to 14 explain those. To explain those questions that FENOC 15 has. But the suggestion that they have somehow 16 attacked the AMP is fanciful. And I leave it at that.
17 JUDGE TRIKOUROS: Thank you. Mr. Kamps.
18 MR. KAMPS: Well regarding the last point, 19 we have raised concerns about the small sample size 20 and the infrequency of the Aging Management Plan 21 testing. So a figure for how big the Shield Building 22 is, is 150 time --
23 JUDGE TRIKOUROS: Where did you do that?
24 MR. KAMPS: In our later filings.
25 JUDGE TRIKOUROS: Could you point to where NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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564 1 you did it? And if not now, later.
2 MR. KAMPS: Not quickly I couldn't. I'll 3 point out our filings are hundreds of pages long and 4 that's why we wrote them so carefully at the time.
5 JUDGE TRIKOUROS: That's another issue we 6 need to discuss later.
7 MR. KAMPS: That's why I brought up the 8 NRC's staff size. About a 4,000 staff, a billion 9 dollar annual budget. We don't have those resources.
10 And we would look to, you know, I can't get over the 11 NRC's mandate, protect public health and safety and 12 the environment. We see our role as having to do that 13 for them. We don't have those resources. I wish we 14 did.
15 Regarding this point about the December 16 2nd date, the December 5th date. If nothing else our 17 August 16th filing, which is a chronicle of the FOIA 18 Response, Number 1, Appendix D, is laying out how 19 rushed the restart approval was.
20 There's evidence in there of working 21 through the Thanksgiving Holiday weekend, long into 22 the evening and over the weekend with conference calls 23 on Sunday of the Thanksgiving weekend. It is --
24 JUDGE TRIKOUROS: I don't want to 25 interrupt you, but again please, you can finish your NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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565 1 statement. But any questions you have regarding the 2 adequacy of that decision is not within the scope of 3 the license renewal.
4 MR. KAMPS: But it's being relied on, like 5 the current licensing basis is being relied on as a 6 foundation for why the Aging Management Plan in the 7 future is going fine starting in 2017. It's not fine 8 now. The December 2nd restart approval was clearly 9 rushed. We were expecting a December 15th public 10 meeting where we could get more information that could 11 serve as a basis for filing our contention.
12 Instead we're shocked and left scrambling 13 trying to understand how the restart in real time, as 14 you're saying, which is out of scope of this 15 proceeding could happen, it was as I indicated 16 yesterday it was our trigger that we cannot depend on 17 the NRC to protect public health and safety and the 18 environment during the license extension, I guess 19 we're going to have to do that.
20 So we were shocked to learn that Abdul 21 Sheikh's safety significant calculation, Calculation 22 Number 56, if I remember correctly, which is where he 23 made the prediction that a small additional stress 24 could fail the Shield Building to a 90 percent depth.
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566 1 before the reactor restart approval, but after it on 2 December 5th. So that's a rebuttal to that.
3 In terms of age relatedness of the 4 cracking, yesterday counsel for FirstEnergy admitted 5 that certain forms of micro-cracking are age related, 6 he did not deny that. He flippantly regarded it as to 7 be expected.
8 Our point throughout our filings has been 9 that when you add up all the stresses of the various 10 categories of cracking in the various diverse 11 locations on the Shield Building, you have to add 12 those up. Those are cumulative risks that harken back 13 to what's referred to as the age degraded degradation.
14 This reactor especially --
15 MS. KANATAS: Your Honors, --
16 MR. KAMPS: -- after 2017 will be deep 17 into its breakdown phase. And all of these risks are 18 accumulative and that is what we're trying to 19 conservatively address in our filings.
20 MS. KANATAS: Your Honors, I'm sorry. I'd 21 like to raise an objection, because the cumulative 22 effects arguments were stricken by the Board's most 23 recent order. So I'd like to raise an objection to 24 this reference to cumulative effects. Thank you.
25 JUDGE TRIKOUROS: Well again, this Board NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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567 1 needs to understand the relationship between your 2 submittals and the Aging Management, the license 3 renewal application. And everything you're talking 4 about now is not related to the license renewal 5 application.
6 MR. KAMPS: Well I can't get over 7 FirstEnergy's statement a short time ago that there's 8 no aging related nature to the cracking. What about 9 the second most likely root cause, which was the top 10 down moisture penetration due to the parapet and the 11 dome interface which has been cracked perhaps as far 12 back as 1976 itself, pre-blizzard of 1978.
13 So the Blizzard of 1978 can't explain 14 that. How is that not aging related as every 15 precipitation event from up until August of this year 16 could have caused that to go down. That cracking as 17 you yourself, Judge Trikouros, yesterday said, once 18 the cracking starts it takes a very small additional 19 energy to drive that cracking.
20 Something as simple as a daily temperature 21 gradient, or a seasonal temperature gradient into 22 areas of dense rebar. That is aging related, it's 23 already started. It can't be reversed.
24 JUDGE TRIKOUROS: But you heard the 25 discussion regarding the Shield Building AMP and the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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568 1 Structures AMP.
2 MR. KAMPS: We have raised concerns about 3 the infrequency of those tests, which as FirstEnergy 4 indicated yesterday will become more and more 5 infrequent over time. And the small sample size on a 6 huge Shield Building.
7 JUDGE TRIKOUROS: Well let's get one thing 8 straight. You've provided us with motions that total 9 many, many pages. And somehow you're relating any 10 piece of that to us to become a contention.
11 I mean, we are having a lot of trouble 12 putting this all together in what we would call a 13 single contention. You've only filed one contention.
14 You've amended it five times, but there's no clear 15 indication of how you've amended it.
16 We don't even know at this point what that 17 contention is, other than the original wording. There 18 have been attack on the AMP, but they've been, for the 19 most part, referring to NRC question and inspection 20 questions and RAIs, which are, you know, that's part 21 of the NRC process. That is not your contention.
22 So we're having this difficulty and this 23 is an opportunity for you to help us straighten that 24 out. We're trying to give you a lot of latitude here.
25 MR. KAMPS: Well in terms of timeliness on NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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569 1 the AMP, the AMP is a moving target. It's being 2 evolved, it's being revised on an ongoing basis. And 3 again, August 16th a major revision to the AMP. We 4 know, we filed --
5 JUDGE TRIKOUROS: But you filed no 6 contention.
7 MR. KAMPS: We filed a contention on 8 January 10th and these are the kind of issues we had 9 hoped to address in a hearing. That was ten months 10 ago. So we have done our best all year long to keep 11 up with this mountain of paper coming our way. But it 12 seems like that would be best addressed in a hearing.
13 JUDGE TRIKOUROS: All right, is there 14 anything more on this particular subject, or this 15 topic of discussion that anyone has?
16 MR. MATTHEWS: I would just note, this is 17 Tim Matthews for the Applicant. Noting that I didn't 18 make any admission yesterday, or today, in this 19 hearing that there is somehow some time dependent 20 feature of the cracking phenomenon. It's our view 21 that there is none. I think we've expressed that.
22 Thank you.
23 JUDGE FROEHLICH: Yes, we'd like to take 24 our mid-morning break. And we'll resume our 25 questioning in ten minutes.
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570 1 (Whereupon, the hearing in the above-2 mentioned matter went off the record at 10:25 a.m. and 3 went back on the record at 10:40 a.m.)
4 JUDGE FROEHLICH: Please be seated. On 5 the record. Go ahead.
6 JUDGE KASTENBERG: So I have one question, 7 a series of questions again that relate back to the 8 root cause analysis. And in the, I believe it's on 9 Page 6 of your second motion to amend which is dated 10 June 4th. This is after the root cause analysis was 11 published and completed, you state the following.
12 The conclusion that the Blizzard of '78 13 did it is viewed with skepticism because the 14 engineering literature is disputed over how forceful 15 the delivery of precipitation must be for it to 16 penetrate concrete.
17 And then you refer to an article in the 18 engineering literature, quantification of water 19 penetration into concrete through cracks by neutron 20 radiography, as a fact to back up your statement at 21 this point. And then you quote something from the 22 article.
23 Could you review for me how this article 24 pertains to the issue at hand? Where in the article 25 does it support your contention that the Blizzard of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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571 1 '78 didn't do it, and how it relates to Davis-Besse?
2 If you could do that for me that would be helpful.
3 MR. KAMPS: Yes, sir. The reason that we 4 included this in our filing was that the gist of the 5 study was that wind driven rain isn't really necessary 6 to drive it deep into the concrete. As the study 7 indicated, deep penetration resulted just from the 8 wetting of the concrete, so the moisture penetrated 9 deeply into the concrete over a short period of time.
10 And this proved to be a significant issue 11 in this proceeding because even, I remember clearly at 12 the August 9th, 2012, Oak Harbor High School public 13 meeting, FirstEnergy was challenged by ourselves, by 14 members of the public, by Congressman Kucinich as to 15 how does the blizzard of 1978 explain that?
16 And this challenge also took the form in 17 the PII revised root cause assessment where NRC asked 18 PII and FirstEnergy, how do you explain the cracking, 19 the subsurface laminar cracking at the outer rebar mat 20 of the northeast face of the shield building if the 21 blizzard of 1978 blew in from the direction of the 22 southwest?
23 And they emphasized that the cracking was 24 worse in the southwest, they did say that. But their 25 explanation why the northeast face was cracked was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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572 1 that it got wet too. That's pretty much what they 2 said. It got wet too, and that's all it took.
3 And then once it got wet and the freezing, 4 the deep, sudden freezing set in, zero degrees 5 Fahrenheit, if I remember correctly, that was 6 sufficient. It didn't take the wind driven rain.
7 And so our point of significance to all 8 this is that because of its location on the Lake Erie 9 shoreline, 40 winters, and more than that if you go 10 back to construction time. Because remember, and this 11 was pointed out in the PII report as well, the shield 12 building under construction was lacking a dome for a 13 number of years. It was open to the elements for a 14 number of years without a dome. It was a cylinder 15 without a dome. And also there was the initial 16 construction opening which remained open even longer.
17 That was so that the large nuclear components could be 18 moved in.
19 So our point is that countless 20 precipitation events could have been involved in not 21 only damaging the exterior of the shield building but 22 also the interior of the shield building, which is an 23 issue that has not gotten much play in this entire 24 proceeding.
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573 1 mat of the shield building? Like I said before, the 2 laser beam red herring focus is on one area of the 3 shield building, one layer, while there's lots of 4 degradation to the shield building from multiple root 5 causes.
6 And I guess you could say NRC brought up 7 the blizzard of 1977. Yes, indeed, NRC staff did ask 8 that question. It's in the PII documents. Why wasn't 9 the blizzard of 1977 sufficient to cause the cracking?
10 And FirstEnergy tried to argue, no, it wasn't as bad.
11 They called the blizzard of 1978 the perfect storm.
12 Well, the basis of the question from NRC 13 is, it appeared that the blizzard of 1977 was 14 sufficient to cause the cracking. And we would argue 15 that it doesn't take a blizzard. It doesn't take high 16 winds. It only takes the wetting of the surface, 17 whether that be the inner or outer surface of the 18 shield building to initiate cracking.
19 JUDGE KASTENBERG: Then you reckon that 20 this paper supports that claim?
21 MR. KAMPS: That was our interpretation, 22 yes.
23 JUDGE KASTENBERG: Of this paper. You 24 also say in here because the engineering literature 25 was disputed. Are there other papers in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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574 1 engineering literature that would support your claim, 2 or is this one that you happened to find?
3 MR. LODGE: No, sir. There are others 4 that we could find that feedback on or follow this 5 conclusion. I think the reference, the engineering 6 literature was that article.
7 JUDGE KASTENBERG: It was that article?
8 MR. LODGE: Yes.
9 JUDGE KASTENBERG: I see. And then you 10 quote something from the article and then you complete 11 that paragraph by saying, "there is no consideration 12 or discussion which addresses the possibility that 13 much less than the drama of the blizzard might have 14 produced the damage."
15 And yet an hour ago or so you mentioned 16 that the staff took a look at 27, or other 17 possibilities. So which of those two statements is 18 more accurate?
19 MR. KAMPS: To me they're mutually 20 inclusive. I mean the drama of the blizzard of 1978 21 was that it was the perfect storm. It was very 22 convenient for FirstEnergy because it was not aging 23 related, which precludes, you know, our challenge in 24 the license extension proceeding, but the 20-plus 25 potential root causes cited by NRC staff and responded NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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575 1 to by PII, some of them were much less dramatic.
2 They are simply standing water on the roof 3 of the shield building because of this unfortunate 4 design, this bad design, the parapet and dome with 5 contingent of the cracking, which allows that standing 6 water or that melting snow or melting ice to simply 7 percolate down the sidewall of the shield building.
8 And I think that's why the NRC staff 9 referred to it as the second most likely root cause 10 explanation. They went into detail about the radial 11 stresses caused by, and, you know, this gets to the 12 very present day, this evolving easy management plan.
13 FirstEnergy recently explained to the NRC, 14 I believe it was the August 16th response to a request 15 for additional information that the sealants, the 16 paint, the whitewash is not designed to prevent the 17 deep freezing of the concrete.
18 That's a 40-plus year old flaw of this 19 shield building. The concrete has a 50 percent higher 20 thermal conductivity that allows deep freezing 21 temperatures deep into the concrete. What they're 22 trying to do with the whitewash is prevent the 23 moisture penetration that will then, once it freezes 24 inside the wall it will create those radial stresses.
25 But if you've got cracks on the dome then NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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576 1 you've got water getting in, and we've raised that 2 notion in our filings that you've got another source 3 of water in the shield building that's the degradation 4 at the base of the entire building.
5 The standing ground water in the sand bed 6 region that can serve as a wicking mechanism, so 7 you've got potential for water to get into the shield 8 building through this rotting process, and you've got 9 that problem of the deep freezing due to the 10 substandard concrete that's been used. And that's why 11 we raise these issues.
12 JUDGE KASTENBERG: Does the applicant, do 13 you have any comment about this paper and it's 14 relevance to the situation at Davis-Besse?
15 MR. MATTHEWS: I do, Judge Kastenberg, 16 thank you for the opportunity to respond. Your 17 question points out just one example of the failure 18 that's symptomatic of the entire contention and parade 19 of supplements in that they don't tie up allegations 20 to claims that somehow the cracking is age related or 21 that the AMP is somehow inadequate to address it even 22 if it were.
23 None of these arguments that Mr. Kamps has 24 advanced now are contained in the pleadings. Further, 25 even if they were, the second supplement that you're NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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577 1 talking about is inadmissible for the reasons that the 2 staff and the applicant have pointed out.
3 The refusal to consult, there's no 4 certification, there was no attempt to consult. They 5 don't suggest they did. The regulations are clear, 6 the pleading itself cannot come in. Even if they did 7 it's time late. They're challenging the root cause 8 that was delivered to the parties by FENOC on February 9 the 29th. They were bringing it in June.
10 But on the merits of the point, the study 11 supports the root cause. It's entirely consistent 12 with the Ontario study that FirstEnergy reports 13 talking about water penetration into the concrete.
14 The root cause points to wind driven rain as 15 penetrating the concrete.
16 Moisture penetration into concrete is 17 function of the material properties of concrete that 18 were studied extensively in the root cause report.
19 There's no challenge to any of that. What they are 20 really complaining about is adequacy of FENOC's 21 corrective actions in current licensing space.
22 There's no challenge to the adequacy of 23 AMP. The coatings are there as a real-time corrective 24 action, current licensing basis, and the AMP has 25 features to monitor the coatings. There's been no NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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578 1 challenge to the coating maintenance, coating 2 monitoring aspects of the AMP, and for those reasons 3 it's inadequate to support a contention. Thank you, 4 Judge Kastenberg.
5 JUDGE KASTENBERG: Do you have any comment 6 regarding this?
7 MS. KANATAS: Staff doesn't have much to 8 add except to reiterate that they don't indicate the 9 tie of this study to any of their license renewal 10 concerns.
11 Even assuming as we said earlier that it 12 was not the Blizzard of '78, which they do not provide 13 any support for why it was not, it doesn't get to how 14 the shield building monitoring AMP is any way 15 inadequate. You have to do more than claim that 16 something is deficient. You have to identify what is 17 wrong, and that's CLI-10-9, 71 NRC at 270.
18 And again, these supplements, and even 19 today at this oral argument, it's a rehash of out-of-20 scope arguments about the claimed faulty concrete, the 21 failure to apply a weather sealant 40 years ago when 22 that was not specified in the design criteria. The 23 cracking being a current safety issue.
24 All of these things are not within the 25 scope of this proceeding as I think we've established.
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579 1 And so repeating them, rehashing them does not lead to 2 new and materially different information. Instead 3 it's just, and it does not identify a contention that 4 is worthy of a hearing on the merits, because our 5 adjudicatory hearings are limited to the issues 6 material to our decisions, and while current licensing 7 issues are important those are handled now. So that's 8 all I have to add.
9 MR. KAMPS: Can I respond? There was 10 another challenge, I mean just now about FirstEnergy 11 that our June 4th filing was not timely. But our June 12 4th filing was responding to the April 5th, 2012 aging 13 management plan put forth by FirstEnergy. So it was 14 timely. It was within the 60-day period.
15 And Judge Trikouros, you asked earlier if 16 we could identify some of our challenges to the aging 17 management plan. So our initial challenges were 18 contained in this June 4th filing that was timely.
19 We, throughout this filing, touch on our 20 concerns about the aging management plan. We referred 21 to the aging management involving scant planned 22 testing to be done during infrequent inspections over 23 the coming decades. As for example, a mere handful of 24 core bores. That's Page 8 to Page 9.
25 So we were trying to point out that the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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580 1 sample size is too small. The frequency of the 2 testing is too few and far between is what our 3 challenge was to the aging management plan, in a 4 timely fashion.
5 MR. LODGE: Moreover, just to respond 6 further to Judge Trikouros' question before the break.
7 At Page 4 of the intervenors' July 16th motion, which 8 is the third motion to amend, there's more discussion 9 of the paucity of samples.
10 MR. MATTHEWS: Sorry, Terry, the page 11 cite?
12 MR. LODGE: Page 4 of the third motion.
13 MR. MATTHEWS: Thank you. Sorry about 14 that.
15 MR. LODGE: Anyway that is where we note 16 that the six core bores taken from the shield 17 building, while collected from different elevations on 18 the exterior, are not identified as to location from 19 which they were taken. And that continuing onto Page 20 5 that FirstEnergy had concluded they were all 21 considered part of a single delamination process.
22 That's all I have, thank you.
23 JUDGE TRIKOUROS: The question still 24 remains how the, regarding sort of the administrative 25 structure here. You've got your contention which was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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581 1 identifying age related concerns and which was cured 2 in a sense by the shield building AMP.
3 Are you asking us now to fabricate a 4 contention or come up with a contention based on one 5 or more of these supplements, a contention that you 6 did not propose? What are you asking this Board to do 7 with respect to the initial contention?
8 Are you asking us to create a contention 9 for you? Is that what you're asking? We have only 10 one contention and on its face it was cured by the 11 AMP.
12 JUDGE KASTENBERG: Well, actually I would 13 add to that. When I read the contention it's got 14 three parts to it. The first one is extensive 15 cracking and its unknown origin, and there's a root 16 cause analysis.
17 There's the aging related feature of the 18 plant and there's an AMP, and then the condition of 19 which precludes safety operation and that's been 20 continually addressed here.
21 So as Judge Trikouros asked, what is it 22 that you're asking us to do given that there's been a 23 response to each part of your contention?
24 MR. LODGE: One moment, please.
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582 1 remains true as an allegation that warrants a 2 proceeding to a hearing. That we don't trust the 3 NRC's regulatory involvement because of the conflicts 4 that we've talked about. We believe that the extent 5 of the cracking remains unknown and not well 6 quantified or perhaps even understood by FirstEnergy 7 based on, among other things, the small sampling we 8 were just talking about.
9 And we remain very concerned that the safe 10 operation of using a shield building which has been 11 deemed by the staff not to meet the licensing basis, 12 the terms under which it was constructed, is of 13 considerable concern with clear implications for the 14 ensuing 20-year period after 2017.
15 Based on what we know now, what is in the 16 public domain right now, we believe that there are not 17 reasonable assurances that the shield building will 18 function in its intended way.
19 JUDGE TRIKOUROS: But your belief has to 20 be supported by fact or expert opinion. And you so 21 far pointed to primarily staff questions and 22 inspection questions, RAIs.
23 Even an attack on the, I'll use the word 24 "attack," but a criticism of the AMP that says that 25 the frequency is incorrect is, you know, has to be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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583 1 supported and has to be more specific. Should it be 2 double? Should it be ten, you know, much more? A 3 little bit more? What is the nature of the criticism?
4 Just to say the frequency isn't right doesn't give us 5 much.
6 MR. KAMPS: To answer your questions, in 7 our filings we'll have to search to see where this 8 occurred, but we pointed out that there are dangers of 9 accelerated cracking. And at that point where we 10 raised that concern about accelerated cracking that 11 this is not a slow motion phenomenon. That we 12 referred back to the hole-in-the-head fiasco of 2002.
13 And again this is something that 14 Congressman Kucinich has raised in the context of this 15 current cracking scandal that the corrosion of the lid 16 in 2002, FirstEnergy was saying one thing to the NRC, 17 saying something else to its insurance company. And 18 the insurance company looked into matters and the 19 insurance company's research --
20 MR. MATTHEWS: Objection, Your Honor.
21 MR. KAMPS: -- showed that there was 22 accelerated corrosion of the lid more so than 23 FirstEnergy had admitted to.
24 So if lessons can't be learned from that 25 the nearest near-miss to a disaster since the Three-NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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584 1 Mile Island meltdown, then where will lessons be 2 learned from? And the lesson to be applied here on 3 cracking is that you cannot let five years or even ten 4 years go between testing for cracking when you could 5 have, and that's why we raise our challenges to the 6 root cause understanding, the extent of condition 7 understanding.
8 If you don't understand the root cause 9 completely, if you don't understand the extent of 10 condition completely, how can your corrective actions 11 be adequate? So if something's been missed, and we 12 are very skeptical that this is understood thoroughly, 13 you could have a mechanism of accelerated cracking.
14 And if you're doing a test every five 15 years or a test every ten years on a small sample size 16 on a huge shield building you're asking for trouble.
17 That's what we tried to convey in our filings.
18 JUDGE TRIKOUROS: All right. Well, that's 19 understood. But we have to deal with the contention 20 that was supplied by you to us. That contention is 21 worded a specific way. All parts of that contention 22 as Judge Kastenberg just indicated were cured in 23 essence.
24 For us to move forward would require some 25 specific area to move forward with. We have hundreds NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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585 1 of pages of supplements but, you know, that doesn't 2 constitute a contention because the supplements deal 3 with literally hundreds of different things. So we 4 don't have a path here to move forward.
5 MR. KAMPS: I would just observe that I 6 mean it's a question of basic principles, I think.
7 The burden seems to be very much on us. It's not our 8 proposal that FirstEnergy extend its operations by 20 9 years. It would seem to me that the burden should be 10 on FirstEnergy to prove that its 20-year license 11 extension is safe and environmentally protected.
12 JUDGE TRIKOUROS: But they've done that in 13 all of the NRC interactions. I mean they're being 14 licensed now. For example, on April 25th when the AMP 15 came out, the shield building AMP came out --
16 MR. KAMPS: April 5, yes.
17 JUDGE TRIKOUROS: April 5, right. All 18 that was necessary was filing a contention that said 19 that the frequency of the AMP is incorrect and here 20 are the reasons. We would have had a clear contention 21 and a clear path forward at that point that we could 22 have valued.
23 MR. KAMPS: We regard our June 4th filing 24 as just what you describe. I mean look back at the 25 history of this proceeding. You found problems, as of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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586 1 course did our adversaries from FirstEnergy and NRC 2 staff, with our initial contention which was a wind 3 power, solar power, wind plus solar power with backup 4 storage, you found problems with our contention and it 5 was reworked and admitted for hearing.
6 And granted, the five commissioners 7 unanimously voted to reject it for hearing, but there 8 was involvement by the licensing board. There was 9 certainly involvement by NRC staff and FirstEnergy, 10 and a contention admitted for hearing came out of 11 that.
12 And, you know, I'm a huge fan of renewable 13 energy. We saw it as an alternative to a 20-year 14 extension. We made that clear. I'm also not a fan of 15 the safety risks, I mean environmental risks presented 16 by this cracked shield building. And it would seem at 17 least as important for NRC staff, for one thing, to do 18 its job and be involved in protecting the public from 19 2017 to 2037.
20 So I am not averse to that involvement 21 that you suggest there. We've done our best effort 22 this entire year to put forward our concerns, our 23 critiques, including on the aging management plan in 24 a timely fashion.
25 And it's unfortunate, it seems another NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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587 1 basic principle observation here is that the 2 hypertechnicalities, the hyperlegalistic 3 technicalities of this proceeding and the NRC's rules 4 are more important than the merits of the safety and 5 environmental risks presented. And that's something 6 that we very much have a problem with.
7 JUDGE KASTENBERG: Mr. Kamps, I'd just 8 like to make a response to put this in context 9 addressing the burdens that the applicant, staff, 10 intervenors and this Board have in a license renewal 11 application.
12 You're correct that in the first instance 13 the applicant must come forward and make its case that 14 it has met all the requirements and that its plant 15 should be relicensed for an additional 20 years. And 16 they do that by following their license renewal 17 application. And that license renewal application 18 addresses all the issues that are important to protect 19 the health and safety of people and the environment.
20 At that point a burden shifts to anyone 21 who has an interest in that to come forward and say 22 what's wrong with that application. What was not 23 looked at sufficiently? What was looked at 24 incorrectly? What requirements that the Commission 25 has in place to protect the safety and the health and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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588 1 the environment of people were not addressed 2 sufficiently?
3 And the burden shifts then to the 4 intervenors or any party who has such an interest, to 5 point out to the Commission, in the first instance, 6 where those defects lie, to sort of take that laser 7 point to here's what's wrong, here's what has to be 8 done. And those requirements are spelled out not 9 hypertechnically but in section 2.309(f)(1), six 10 points.
11 And then an intervenor who let's say at 12 one point is not represented by counsel, the Board 13 will look at that contention that request and see, 14 giving every benefit of the doubt especially when the 15 intervenor's not represented by counsel, whether 16 they're raising an issue that's within the scope, 17 within the sphere of license renewal and whether it 18 points to defects or items that are missing in the 19 license renewal application, in the environmental 20 report or any of the other required filings that they 21 have to make in order to renew their license.
22 For the intervenor, especially one with 23 limited funds, limited resources, what they may do is 24 look to section 2.309 and then address each one of the 25 elements there with specificity, so that the Board NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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589 1 won't have to go through thousands and thousands of 2 pages of paper, and that you won't have to harvest all 3 those trees to print that up and send it and copy it.
4 That you'll focus the attention of the 5 Board on what your concerns are and also alert the 6 staff and the applicant and any other parties that 7 there might be to what you believe, what you think 8 needs a hearing within the guidelines, within the 9 regulations set forth by the Commission.
10 It doesn't have to be a lengthy pleading.
11 It need only address the requirements of 2.309. And 12 it should do that with specificity, because I think 13 that would make things go much easier, much more 14 orderly, and I think would get you the hearing you 15 desire if you can show to the Board that you've met 16 the requirements when the burden is on the intervenor.
17 We're looking very hard, giving a very 18 hard look to the totality of what you filed in the 19 original contention and the five amendments that came 20 there. And we're assuming for the purposes of today's 21 oral argument that the initial motion was timely.
22 That the other procedural requirements have been met 23 and that the original contention is admissible. We're 24 just assuming that for the purposes of argument today 25 as we look at each of the amendments that follows NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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590 1 subsequently.
2 And from my reading of your pleadings it's 3 not until, I think, the fifth amendment that I begin 4 to see some specific focused address of the criteria 5 that we are to apply in deciding whether or not to 6 admit this shield building contention.
7 I think the objections that have been 8 raised and the concerns that my colleagues on the 9 Board have raised about what's in scope and what's out 10 of scope in this application are causing you to expend 11 a lot of resources, a lot of energy to putting 12 forward, when the focus, I think, should be on what is 13 wrong, what is missing from, what should have been, 14 what needs to be done with that license renewal 15 application, what needs to be done with that root 16 causes report, and what things that you take issue 17 with, then we can get to the question of what support 18 you have.
19 The Board's cognizant that you don't need 20 to have that amount of evidence necessary for summary 21 disposition at this point. But you must come forward 22 with some alleged facts that we can say, yes, these 23 alleged facts would cause a reasonable person to 24 believe that there's an issue here that would benefit 25 by a public hearing.
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591 1 And I think that's sort of the standard 2 that we're going to be applying to all the pleadings 3 that you have made in this case.
4 We can, I guess as we go forward this 5 morning, go through in great detail each one of the 6 pleadings, but I think our time would be best spent if 7 we can address the specific aspects.
8 Is your contention at this point that the 9 license renewal application is deficient? Is there 10 some point, and you can point me to the paragraph, you 11 can point me to the section. Or is that root causes 12 report deficient or have an error in it and you have 13 some facts to say, hey, look, there's an error here.
14 Here's what's wrong. Here's why we think it's wrong.
15 That would help the Board a great deal in deciding 16 whether or not to admit this contention.
17 MR. KAMPS: I would just refer you to our 18 submissions thus far. I think we do that extensively.
19 We point out errors, and citations are provided in our 20 written filings.
21 The burden that I mentioned, and you 22 explained it well just now, the burden shifted to us 23 on December 27th, 2010. But I have to point out that 24 there seems to be, from my perspective anyway, a 25 double standard at play, for example, on timeliness.
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592 1 Our timeliness was questioned yesterday 2 and again today, but there seems to be no set 3 deadlines for FirstEnergy to provide its documentation 4 which we depend on to make our filings in a timely 5 manner.
6 So just some examples, NRC in its 7 confirmatory action letter of December 2nd, 2012, made 8 it clear, I had it here somewhere, that a root cause 9 report was due by February 28th of 2012, but December 10 2nd, 2011. A root cause report is due by February 11 28th of 2012 including aging management actions that 12 need to be taken, corrective actions that need to 13 taken.
14 So yes, there was a filing provided by 15 FirstEnergy on February 27th of 2012, and it was so 16 badly done that NRC returned it to FirstEnergy and 17 asked for major revisions which were provided in mid-18 May of 2012. So that's some months of extension there 19 on that deadline.
20 Dave Lochbaum at Union of Concerned 21 Scientists pointed out that on its face that was a 22 violation of 50.9 regulations for complete and 23 accurate disclosure by the deadline. There's been no 24 enforcement action taken against FirstEnergy.
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593 1 which reading the CAL was due on February 28th as 2 well, well, that came out on April 4th, April 5th --
3 I'm sorry -- 2012. We responded to it by June 4th, 4 2012, and we've seen a series of revisions to that 5 aging management plan up until very recently.
6 And so that's why I cited it's a moving 7 target. That's why I said hyperstrict technical 8 deadlines placed on us, but not on FirstEnergy who 9 should have the burden. You said, is the license 10 renewal application of August 2010 complete and 11 accurate?
12 Well, it doesn't seem to me to be, because 13 it's allowed to be updated continually. We challenge 14 those updates as we are able to by the 60-day deadline 15 imposed upon us to do so, and that's the double 16 standard that I see in timeliness as one example.
17 JUDGE TRIKOUROS: But I believe that in 18 this particular type of proceeding, Mr. Kamps, you 19 know, more is less. Conversely, less would be more.
20 The nature of your pleadings are such that you believe 21 that the greater number of pages that are filed the 22 more likely of success you will find. In fact, the 23 exact opposite perhaps is true.
24 A targeted criticism would be far more 25 effective to allow us to move forward. Every revision NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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594 1 of that AMP is an opportunity to file a contention 2 that says it's incorrect and here are the very 3 briefly, specific areas that we have a problem and 4 here's our basis. That's all that's necessary at the 5 contention admissibility stage.
6 Filing 300 pages of various, you know, 7 rambling items regarding RAIs and press releases, et 8 cetera, et cetera, makes it very difficult to see 9 where you're going with this and what the nature of 10 the contention would be that one would be able to 11 litigate. And that's where we are right now.
12 JUDGE FROEHLICH: I would only add one 13 comment to my colleague's remarks as to the strictness 14 of the timing deadlines. Whenever there's a filing 15 that presents as a material difference from what's 16 already been put forward, that's when your clock 17 starts running.
18 So if a report is due in December and it's 19 not filed until February, well, in February that's 20 when your clock begins. And you have that time in 21 between to concentrate on the documents that are 22 already in the record so that you can alert the Board 23 to material differences in the subsequent or late 24 filing that you referred to.
25 So the fact that some of these things are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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595 1 coming in at a later date shouldn't be a disadvantage 2 because the trigger, to the extent there are material 3 differences, begins when that filing is received.
4 MR. LODGE: I would just like to respond 5 first to Judge Froehlich's question. The passage to 6 which I believe you're referring roughly spanning 7 about Pages 92 to 95 in our fifth, I think it was 8 August 16th motion, we believe does pull things 9 together and focus.
10 I've been a trial attorney for more than 11 three decades and the term in this part of the country 12 in our industry that really is trial by pile. And I 13 would simply like to point out that in a summary 14 disposition filing in July, FirstEnergy filed, I 15 believe, 3,200 pages of supporting documentation , and 16 considered to be well targeted and well referenced and 17 all that.
18 Similarly, Judge Trikouros, we believe 19 that our filings have been targeted. Lengthy, yes, 20 but very much, we believe, on topic. I hope the Board 21 will excuse the intervenors if we take the perspective 22 that the pleading standard is so difficult to meet 23 that we feel the impetus to pile on. Trial by pile.
24 To provide as much evidence as what we think is 25 material evidence as possible at the front place of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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596 1 the entire process, at the beginning point.
2 In any event, our position, I believe, is 3 summarized pretty well in terms of the focus. We 4 believe that there is a serious lack of confidence 5 that can be attached to the root cause and revised 6 root cause.
7 We believe that the, and have pleaded that 8 we believe that the AMP, at least the April version of 9 the AMP, is problematic, does not adequately seem to 10 address the issues of fact that we believe were 11 created by the two engineering staff of the NRC, and 12 that indeed those conclusions that were articulated by 13 the NRC staff, if true, create a serious issue of 14 whether or not safe operation, functionality of the 15 shield building can be assured for that 20-year period 16 after 2017. And therefore we believe that the 17 intervenors are entitled to a hearing.
18 JUDGE TRIKOUROS: If indeed the root cause 19 was one that involved a mechanism that was in play 20 very frequently throughout the course of 40 years, 21 every time it rained and got cold, so a dozen times 22 every winter, one would expect to have seen a 23 significant continual deterioration of the shield 24 building over that time.
25 I'm bringing that up only from the point NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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597 1 of view that you focused us to the frequency of the 2 AMP, and even there we don't have enough information 3 to understand the nature of your criticism, because 4 one can't have a hearing on words like "not enough."
5 One needs more than that and one needs a good basis.
6 MR. LODGE: Well, we've pointed out that 7 based upon documents from the utility and the staff 8 that much of the cracking is indeed invisible. There 9 also have been visible signs in the form of swelling.
10 It may or may not be connected.
11 The problem is, cracking was missed in 12 2002, which apparently was underway since 1978 if the 13 story that has been articulated by FirstEnergy is to 14 be believed. So we think that the problem of "not 15 enough" may be that there has not been enough rigor 16 attached to the investigation. And these are issues 17 that would explicated at a hearing.
18 As a for instance, I understand that there 19 were thousands of electronic surveys, impulse 20 responses made to the surface of the shield building, 21 but those do not according to documents that we have 22 seen and I believe commented upon, don't penetrate all 23 the way through the 30 inches or 48 inches of 24 concrete.
25 And so how impressive of a statistic is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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598 1 that really, when we have alleged that there is 2 moisture damage likely from the years preceding the 3 closure of the roofing of the building and the 4 Blizzard of '78? These are issues that are best 5 explored at trial.
6 And again, and certainly the Board 7 understands, we believe we're, in some respects the 8 other parties are trying to hold us to a summary 9 disposition type of evidentiary and proof standard 10 that is not necessary here.
11 (Off the record comments) 12 JUDGE TRIKOUROS: May I ask, is the staff 13 planning to address the shield building cracking in 14 the SEIS?
15 MS. KANATAS: Thank you, Judge Trikouros.
16 No, the staff is not planning on addressing this in 17 the draft SEIS because the cracks as they are do not 18 impact the functionality of the shield building, and 19 we don't see that there's any new and significant 20 information as to the Category I finding regarding the 21 design basis and severe accident determinations.
22 And we do not see that there's any SAMA 23 implications resulting from these shield building 24 cracks as well as there are no proposed refurbishments 25 or anything that would raise a concern at this time, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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599 1 though the staff's supplement is not due out until 2 February 2013. But we do not see a reason that these 3 need to be addressed in the SEIS.
4 JUDGE FROEHLICH: I wasn't focused on the 5 beginning of your answer. Was your response in 6 response to the staff SER or to the SEIS?
7 MS. KANATAS: No, I believe he asked about 8 the SEIS?
9 JUDGE TRIKOUROS: Yes, I did. I asked you 10 about the SEIS.
11 MS. KANATAS: Yes, in the SER the shield 12 building cracking phenomenon is noted as an open item.
13 It's --
14 JUDGE FROEHLICH: 3.013 --
15 MS. KANATAS: Yes, it will be addressed in 16 the final SER.
17 JUDGE TRIKOUROS: So when the FSAR is 18 issued there will be a change that will reflect the 19 closure of that open item?
20 MS. KANATAS: Yes, Your Honor.
21 JUDGE TRIKOUROS: Is that an opportunity 22 for intervention?
23 MS. KANATAS: Yes, Your Honor, as is the 24 --
25 MR. HARRIS: Your Honor, it could be an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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600 1 opportunity for change because it depends on whether 2 or not if there is any change to the AMP reflected in 3 that.
4 JUDGE TRIKOUROS: Right. I understand.
5 MR. MATTHEWS: May I be heard, Judge 6 Trikouros --
7 JUDGE TRIKOUROS: Yes.
8 MR. MATTHEWS: -- on this point? And 9 actually the closing up the earlier discussion. There 10 were a couple loose points that I'd like to respond to 11 and one of them relates directly to this.
12 To the extent the intervenors' pleadings 13 address potential for accelerated cracking, I don't 14 recall that either, but to the extent that they do I'm 15 confident there is nothing that supports some study 16 that talks about accelerated cracking in similar 17 situations like this, and references to Congressman 18 Kucinich or back to the 2001 head event don't provide 19 that support.
20 The potential for accelerated cracking is 21 a current licensing issue and something that FENOC is 22 looking at in the current maintenance rule inspections 23 but it is, that phenomena is addressed in the AMP.
24 That the potential for it is addressed in the AMP by 25 the periodicity, and there's been no, as the Board's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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601 1 pointed out, no challenge to the periodicity specified 2 in the AMP.
3 To the extent the intervenors complained 4 about, it's a little schizophrenic. Availability to 5 information, there's none or there's too much.
6 But with respect to the claim that there 7 is not enough information, we pointed out in our 8 original answer to the contention at Page 47 on 9 February the 6th, what they were talking, what they 10 were really looking for is discovery contrary to the 11 Commission's pleadings. There's ample information 12 available to the public and the intervenors about 13 shield building cracking.
14 Third, that we would agree with the 15 characterization by the Board that the Commission's 16 contention pleading requirements are fairly clear and 17 not difficult. To the extent intervenors complain 18 about their burden that's a challenge to Part 2. That 19 is not part of this proceeding.
20 And along those lines, the opportunity to 21 challenge the AMP, there was a suggestion that any 22 revision to the AMP would be an opportunity to 23 challenge as NRC counsel, Mr. Harris, pointed out.
24 It's new and material information that is the 25 opportunity to challenge a new contention.
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602 1 So if FENOC were to submit a second 2 supplement to the AMP they would have an opportunity 3 to challenge the changes to that AMP, and I'd point 4 out that on August the 16th FENOC did supplement its 5 AMP, modified its AMP. Intervenors were aware of it, 6 told us they were going to comment it in their fifth 7 supplement and apparently have decided not to 8 challenge it.
9 So the arguments that we heard earlier 10 today about the adequacy of the revised AMP are 11 outside the scope of this proceeding. To the 12 intervenors' complaint about too much paper or buried 13 in paper, I'd only point out that the books that we 14 carried into this room were not generated by FENOC.
15 There's not supplements and multiple attachments and 16 a burden of paper by FENOC as to this contention.
17 And to the extent they're complaining 18 about the attachments and summary disposition, our 19 burden on summary disposition is to show our basis.
20 And the reason the record is voluminous in paper is 21 the initial scheduling order requires that all 22 references be attached.
23 If anything, we judiciously selected which 24 references we really needed and included only those, 25 in part because of that requirement and the electronic NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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603 1 filing system effort to push those through the 2 electronic pipe.
3 JUDGE TRIKOUROS: All right, thank you.
4 I have just another quick question for the staff.
5 Does the amended licensing renewal 6 application consider additional inspections after the, 7 when the steam generators were replaced or any other 8 such component replacements occur during the period of 9 the license renewal application, would there be 10 special inspections associated with that or would that 11 just be part of the structural AMP or how does that 12 work?
13 MR. HARRIS: Brian Harris for the staff.
14 When they make those cuts into that is that there will 15 be, NRC inspectors on site will be looking at those 16 cuts, and of course they'll have to justify that once 17 they replace the cut-out sections and restore it that 18 it continues to meet the licensing basis at that.
19 And so they will have to provide 20 justification that the staff will review to determine 21 whether or not that the shield building after the cuts 22 has been returned to its licensing basis.
23 JUDGE TRIKOUROS: All right, thank you.
24 With respect to these breaches of containment is there 25 any factual basis at all to conclude that they have a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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604 1 direct bearing in any cracking or that in the future 2 there will be such?
3 MS. KANATAS: One moment, please, Your 4 Honor.
5 MR. HARRIS: No, Your Honor. The staff is 6 not aware of anything that would say that these 7 additional cuts would lead to some sort of additional 8 type of cracking. The cracking that, you know, we 9 found here in Davis-Besse seems to be unique to Davis-10 Besse for the sub-laminar cracking.
11 MR. MATTHEWS: This is Tim Matthews for 12 the applicant. Judge Trikouros, I'd only point out 13 that the root cause specifically did consider that 14 potential.
15 JUDGE TRIKOUROS: Yes, I understand.
16 MR. KAMPS: I'd just like to respond that 17 again in our FOIA response documents, initially the 18 subcontractors, Bechtel and Sargent & Lundy believed 19 that the hydrodemolitions that they had just carried 20 out was the cause.
21 And yes, that was walked away from at a 22 certain point, but obviously it must be a reasonable 23 concern if the two companies in the country that 24 specialize in the activity thought it might be 25 possible, and that's why we're concerned about future NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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605 1 breaches.
2 A question we have, you just asked the 3 question, will there be NRC inspectors on site when 4 the 2014 breach takes place? There were NRC 5 inspectors on site in 2002 because of the 6 controversial nature of the corrosion in the lid there 7 was a breach made.
8 And that's one of the great mystery of 9 this proceeding is how was the cracking missed in 2002 10 if it had been there since 1978? And we would add 11 that 2014 is admitted to by FirstEnergy as the next 12 breach, but this last lid only lasted nine years, from 13 2002, well, actually from 2004 to 2011. It lasted for 14 seven years of operations.
15 It was supposed to last until 2014. They 16 were going to do the lid swap out and the steam 17 generator swap out at the same time. One breach not 18 two. And they couldn't get away with it because the 19 lid was so degraded already after seven years.
20 So what's to preclude the possibility that 21 this current lid will also need to be replaced? I 22 mean we're talking 25 more years of operations being 23 proposed. The last lid lasted seven years. That 24 would be two more breaches, and you can just keep 25 going.
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606 1 How long will these steam generators last?
2 How many breaches are going to be needed? And 3 inspectors on site can miss cracking. They did in 4 2002.
5 JUDGE TRIKOUROS: Thank you.
6 MR. KAMPS: We pointed out in one of our 7 filings too, it was the January 31st, 2012 inspection 8 report by NRC, that they happened to catch FirstEnergy 9 about to seal the breech shot with faulty rebar. So 10 we are thankful that NRC did its job that day, was on 11 site, caught that mistake.
12 But can it expected that all of these 13 mistakes will be captured by the regulatory agency?
14 It's one of our concerns in this proceeding that it 15 seems that NRC has to help along the company to pass 16 the test again and again and again.
17 And it gets back to the safety culture 18 issues. That's why we're requesting a hearing. This 19 company's safety culture is abysmal and needs to be, 20 there needs to be a spotlight shined on its every move 21 in these regards, especially during the license 22 extension.
23 JUDGE TRIKOUROS: All right. We can move 24 on to this analysis that's being done by FENOC that 25 will be completed in December. I don't have an actual NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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607 1 date. I just have December of 2012.
2 Regarding the relicensing of the shield 3 building, or the reestablishment of the licensing 4 basis of the shield building. Could you address that, 5 Mr. Matthews, in more, what exactly is being done?
6 MR. MATTHEWS: I can, Judge Trikouros.
7 Depending on the questions I may need a little help 8 from our experts in the gallery.
9 And my first point to address is that the 10 current licensing basis is exactly that. It's beyond 11 the scope of this licensing renewal proceeding.
12 Intervenors have not pointed to any theory, let alone 13 fact or support that would somehow connect the two.
14 I understand the Board's interest in it.
15 In connection with the restart of the 16 plant, FENOC addressed the operability including 17 calculations that we've addressed today, the 54 and 56 18 calculations that were the subject of earlier 19 discussion.
20 In those FENOC concluded and the staff, 21 the inspection reports indicate that they didn't take 22 exception with the conclusion that the building was 23 structurally sound. The calculational approach that 24 FENOC used in making that conclusion is not the same 25 calculational method that is described in the FSAR.
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608 1 That is the designed basic calculational method.
2 So FENOC provided an alternative 3 calculational basis to show the suitability, the 4 acceptability of the as-found, as-is containment, or 5 shield building structure. So it is making that 6 method, that calculational method that FENOC used, the 7 licensing basis for the plan, the licensing basis of 8 record, the calculational basis of record.
9 JUDGE TRIKOUROS: So really there are no 10 new calculations being done?
11 MR. MATTHEWS: As I understand it, Judge 12 Trikouros, there's a process prescribed the agency for 13 demonstrating a calculational method as acceptable for 14 the licensing basis. So no, there's no recalculation 15 going on. There's the process of demonstrating a 16 calculational methodology consistent with that 17 guidance.
18 JUDGE TRIKOUROS: Will this be an 19 amendment to the FSAR?
20 MR. MATTHEWS: May I have one moment to 21 consult, Judge Trikouros? Thank you.
22 Thank you for that moment, Judge 23 Trikouros. I understand, I have been informed that 24 the FirstEnergy plan will involve at least a change to 25 the FSAR, supplement to the FSAR. The calculational NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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609 1 method is being reviewed and updated so there is a new 2 calculation that will be performed, and a 50.59 3 analysis will be performed to determine whether that 4 calculational change will also require a license 5 amendment. And if it does, FirstEnergy will follow 6 that process as well.
7 JUDGE TRIKOUROS: And will that be 8 reflected in the final SER? Is there a connection 9 there?
10 MS. KANATAS: Yes, Your Honor. If there 11 was an amendment it would be reflected in the final 12 SER. But I would just point out that, you know, the 13 nonconformance is not, this exact nonconformance what 14 we spoke about earlier is not new and materially 15 different information in the sense that it was listed 16 in the, it listed in the February root cause report as 17 well as it's not relevant, really, to license renewal 18 as it has to do with the operability calculation.
19 So there is potentially a license 20 amendment based on the 50.59 evaluation and at that 21 time there would be an opportunity for a challenge.
22 JUDGE TRIKOUROS: And then the nature of 23 the nonconformances that utilized an analysis method, 24 it was not an approved FSAR licensing method?
25 MS. KANATAS: Correct. Yes.
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610 1 MR. MATTHEWS: Not approved for the Davis-2 Besse --
3 MS. KANATAS: Right.
4 JUDGE TRIKOUROS: Not that there was no, 5 there was a gap in the analysis of the safety of the 6 plant. It was simply the methodology was out of whack 7 let's say --
8 MR. MATTHEWS: It's not the methodology of 9 record for this plant.
10 JUDGE TRIKOUROS: Of the, yes, the FSAR 11 approved requirements at all. Do the intervenors 12 understand that? Because I think there was some, in 13 your pleadings you seemed to indicate that that 14 nonconformance had serious safety implications. And 15 I think what we've heard here is that it's really more 16 of an administrative issue rather than a safety issue 17 to bring the conformance, to bring the plant up to 18 conformance.
19 MR. KAMPS: Could I respond to that?
20 JUDGE TRIKOUROS: Sure.
21 MR. KAMPS: Well, it's contained in our 22 August 16th filing based on the FOIA response Appendix 23 B. A number of the documents provided to us in the 24 that FOIA response revealed just how difficult it was 25 for the NRC staff to get away with this. They had to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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611 1 explain at length. They wrestled with operability 2 versus functionality. It was very difficult to 3 follow.
4 But they were able to explain away why 5 this was problematic, and we have problems with that.
6 And here we are, over a year later it's still being 7 addressed. It's still being wrestled with.
8 JUDGE TRIKOUROS: Well, it looks like 9 there will be a license amendment and it will be 10 included in the SER.
11 The current licensing basis of the shield 12 building is required to be preserved in the license 13 renewal period, and initially I had, well, some 14 concern that the correlation, that if we really were 15 going to change the current licensing basis that there 16 was a gap there.
17 So let me confirm for myself, there is not 18 to be a change in the current licensing basis. It's 19 simply the way that you analyze it?
20 MR. MATTHEWS: That's correct, Judge 21 Trikouros.
22 JUDGE TRIKOUROS: There won't be a 23 reduction in a margin or anything such thing?
24 MR. MATTHEWS: No, Your Honor.
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612 1 believe that the AMP for the shield building or 2 structures would need any revision?
3 MR. MATTHEWS: No basis has been provided 4 by the intervenors and that is correct, Judge 5 Trikouros.
6 I'd also point out that the license 7 renewal rule presumes the adequacy of the current 8 licensing basis, and license renewal proceeding 9 addresses the time appended aspects, if any, and the 10 intervenors have shown that.
11 JUDGE TRIKOUROS: I understand. But the 12 paperwork that we saw wasn't clear that that wasn't 13 going to change as a result of this effort that was 14 underway for December.
15 MR. MATTHEWS: I understand the point 16 you're addressing, Judge Trikouros, and I only note 17 that intervenors didn't note that. That's an 18 important point and something I understand that the 19 staff has reviewed.
20 JUDGE TRIKOUROS: Right.
21 JUDGE KASTENBERG: At this point I believe 22 the Board will take our lunch break, and during that 23 lunch break we'd like to consolidate our questions.
24 And candidly, many of the areas that at least I was 25 going to inquire have been addressed in the responses NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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613 1 that we heard this morning.
2 So I believe that after the lunch break we 3 will have relatively few questions and when we 4 consolidate our notes, and then we would move to 5 closing arguments. The Board would also like the 6 parties in the closing arguments to perhaps expand the 7 scope of them and, indeed, is perfectly willing to 8 grant more time than the five minutes we had put in 9 our notice, so that we can address the standards for 10 admission of a new contention and whether the 11 pleadings that have been placed before the Board, to 12 date, meet those requirements.
13 In that closing, to the extent the 14 applicant wants to review the consultation 15 deficiencies that have occurred, please feel free to 16 include that in your closing comments.
17 For the intervenors in your closing 18 comments, it would be helpful for the Board if you 19 would go through the pleadings that you have filed 20 with section 2.309 in mind and direct the Board to the 21 places that indicate that you responded to the 22 requirements for the admissibility of the contention.
23 You should focus on identifying the 24 alleged facts that support the contention and where we 25 can find them in your pleadings. That would be most NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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614 1 helpful at this point to the Board.
2 Since we're going to be doing a little bit 3 of work on our lunch break, I would suggest we return 4 at 1 o'clock and we'll go through our remaining 5 questions and to your closing arguments.
6 Judge Trikouros moved that we make that 7 1:15 and the suggestion's accepted. We'll resume at 8 1:15. We'll wrap up the questions that the Board has 9 and then we'll go into a slightly expanded closing 10 argument before we adjourn for the day. With that we 11 stand recessed until 1:15.
12 (Whereupon, the above-entitled matter went 13 off the record at 11:52 a.m. and went back on the 14 record at 1:15 p.m.)
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615 1
2 3
4 A-F-T-E-R-N-O-O-N S-E-S-S-I-O-N 5 1:17 p.m.
6 JUDGE FROEHLICH: Please be seated.
7 JUDGE TRIKOUROS: Okay. I just have a few 8 loose ends I would like to close. One of them has to 9 do with the question of the cracking of the interior 10 of the shield building that was raised by the 11 Intervenors in one of their Supplements.
12 So, I guess I would like to ask you, Mr.
13 Kamps, in reading your pleading, it sounded like you 14 were basically speculating that there might be cracks 15 on the interior of the shield building. Is there 16 anything more factual that you have regarding the 17 potential for cracking on the interior of the shield 18 building?
19 MR. KAMPS: Yes, I would point to the 20 Performance Improvement International Revised Root-21 Cause Assessment of mid-May 2012, where one of the 27 22 areas that was delineated was an area of NRC requests 23 for additional information on that very subject 24 matter. NRC staff asked PII and FirstEnergy, could 25 not the exposure of the interior of the shield NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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616 1 building to the elements over the course of two years 2 and four months in terms of the lack of a dome, to the 3 extent of four years and eight months because of the 4 initial construction opening, could that not have also 5 contributed to cracking?
6 So, it was something that we were curious 7 about ourselves before we got a hold of those 8 documents, but certainly, once NRC asked the question, 9 we also raised that in our filings.
10 JUDGE TRIKOUROS: Now that was referring 11 to the region -- was that the sand bed region 12 underground between the containment dome and the field 13 building? Is that what that was referring to?
14 MR. KAMPS: No.
15 JUDGE TRIKOUROS: Because it is typically 16 under water, I think?
17 MR. KAMPS: No, that is a separate issue.
18 So, the issue that I just referred to was the exposure 19 of the inside of the cylindrical shield building to 20 the elements pre-operations. And then, the 21 infiltrating, aggressive, chemically-aggressive 22 groundwater is a separate issue. That is an ongoing 23 issue. Even though the dome has been installed, even 24 though currently the cylinder is sealed, there is 25 still the presence of infiltrating groundwater.
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617 1 JUDGE TRIKOUROS: With respect to that, 2 does the AMP for the shield building or the Structures 3 AMP look at the interior of the shield building, of 4 the interior surface?
5 MR. MATTHEWS: The interior surface of the 6 shield building is evaluated under the Maintenance 7 Rule. There are periodic inspections inside the 8 annulus, looking at the interior face of the shield 9 building.
10 JUDGE TRIKOUROS: Right. Which means that 11 it is in the Structures AMP for the --
12 MR. MATTHEWS: Those inspections would 13 continue under the Structures AMP during the period of 14 extended operation; that is correct, Mr. Trikouros.
15 JUDGE TRIKOUROS: Okay. And there have 16 not been any cracks discovered in the interior of the 17 shield building?
18 MR. MATTHEWS: The subsurface laminar 19 cracking phenomenon has not been identified with the 20 interior rebar mat. I am not aware of any significant 21 cracking identified with respect to the interior face 22 of the shield building. Certainly, nothing has been 23 identified in Intervenors' pleadings, nothing in the 24 record associated with this contention.
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618 1 want to ask the staff the same question. Is there any 2 concern with cracking on the interior of the shield 3 building in terms of the license renewal application, 4 Structures AMP, or the shield building?
5 MS. KANATAS: At this time, no, none has 6 been identified, no.
7 JUDGE TRIKOUROS: Okay.
8 MR. KAMPS: Judge Trikouros, actually, to 9 respond to what FirstEnergy has said, we did raise in 10 our filings the degradation of the moisture barrier 11 associated with the standing groundwater. That is 12 something that NRC has identified in inspection 13 reports. It comes up in requests for additional 14 information.
15 JUDGE TRIKOUROS: All right.
16 MR. MATTHEWS: To the extent the 17 Intervenors have identified in late pleadings, late-18 filed, late with respect to 2.309 -- I am talking 19 about the more recent pleadings about groundwater or 20 the sand bed -- those are all well beyond the 21 2.309(f)(1) criteria. They are pointing to RAIs that 22 go back to what was an SER open issue, very old, not 23 connected with this contention in any way.
24 JUDGE TRIKOUROS: Thank you.
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619 1 being unduly limited to a few known areas. Could I 2 just get some comments on that? Your pleadings made 3 that statement, that the AMP -- I think you were 4 referring to the shield building AMP -- had 5 inspections in only limited areas. Could you address 6 that, Mr. Matthews?
7 MR. MATTHEWS: I can. The only limited 8 areas wasn't quantified, Judge Trikouros. So, all 9 60,000 impulse-response testing points are not being 10 evaluated each inspection period. That is a fact.
11 But the Intervenors haven't identified what limitation 12 there is that is of concern.
13 The shield building AMP indicates that 14 there are a finite number of core bores to be 15 evaluated at each of these inspection periods. There 16 are 12 core bores to be evaluated at each inspection 17 period. It is not random. They are specifically 18 identified areas that are most likely to detect 19 identification of propagation of the crack.
20 So, there are areas where they are looking 21 beyond the known cracking. There are areas where they 22 are looking specifically at pairs at the edge of 23 cracks, so inside the known boundary of the crack and 24 outside the known boundary of the crack.
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620 1 the 12 core bores, there is a limitation to how many 2 there are. There has been no suggestion, no bases 3 that that selection, that sample is somehow 4 inadequate.
5 JUDGE TRIKOUROS: But the goal of the AMP, 6 is it to only look at limited parts of the building or 7 is the goal to determine if there is cracking anywhere 8 in the entire building?
9 MR. MATTHEWS: It is to determine whether 10 there are aging effects associated with the subsurface 11 laminar shield building cracking phenomenon. So, it 12 looks in areas that are cracked and uncracked. It is 13 not focusing only on those areas that are already 14 cracked. It is predominantly looking at areas that 15 are susceptible to cracking. You would expect that, 16 if a crack propagates, it is going to propagate from 17 the place it is now, the known place, and then 18 propagate from there. So, that is where you would 19 start. But there are core bores to be evaluated in 20 other non-cracked locations.
21 MR. KAMPS: Judge Trikouros, could I 22 respond to that?
23 The 60,000 impulse-response testings that 24 were done, there has been a recent filing as a 25 response by FirstEnergy to NRC request for additional NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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621 1 information, where FirstEnergy admits the impulse-2 response testing is not industry-validated. I believe 3 those were their exact words.
4 They didn't say this, but it is clear that 5 impulse-response testing is necessary, but not 6 sufficient. So, the sufficiency -- and they did speak 7 to this in their response to the RAI -- is core bore 8 testing. And FirstEnergy made our point exactly.
9 Twelve core bores across a shield building of 150,000 10 square feet, and we haven't done the calculation for 11 the cubic feet of 150,000-square-feet surface and 2.5-12 foot-thick walls, but that gets to the very heart of 13 our contention, too. It is that some forms of 14 cracking are invisible to the human eye. They are 15 subsurface laminar, as FirstEnergy just admitted.
16 That even goes to the point of the 17 moisture barrier at the foot of the building. Those 18 visual inspections that were referred to under the 19 Structures Monitoring Program will not detect 20 degradation that is below ground, that is invisible to 21 the human eye. And that is the problem, the dearth of 22 core-bore tests.
23 JUDGE TRIKOUROS: Okay. All right. Let's 24 see, it is in the Third Amendment a statement is made, 25 a statement by the Intervenors is made that, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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622 1 "According to FENOC, the only cracking worthy of note 2 or analysis in the first 35 years of operations at 3 Davis-Besse was laminar, and especially subsurface 4 laminar cracking. A fallacious perspective. FENOC 5 has given short shrift to surface cracking, dome 6 cracking, microcracking, and radial cracking." That 7 is the quote.
8 I would just like to ask FENOC, does the 9 structural and shield building AMP ignore other types 10 of cracking?
11 MR. MATTHEWS: No, it does not, Judge 12 Trikouros. It is specifically what the Structures AMP 13 is for. The Maintenance Rule inspects those issues 14 now, and the shield building AMP is focused 15 specifically on the subsurface laminar cracking issue.
16 It is an augment to the Structures AMP. So, all those 17 forms of cracking are addressed.
18 JUDGE TRIKOUROS: If other cracking were 19 to occur or would be seen during the course of the 20 laminar cracking inspections in the shield building 21 during the shield building inspection, would they be 22 looked at, evaluated, noted, and et cetera?
23 MR. MATTHEWS: They would be documented in 24 a condition report and the Corrective Action Program 25 and evaluated, both with respect to then-current NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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623 1 operations and the aging effects, that potential for 2 aging effects.
3 JUDGE TRIKOUROS: All right. Any comment?
4 (No response.)
5 I believe I have only one more item.
6 MR. KAMPS: Judge Trikouros, can I just 7 put a point out in fact, that the dearth of core-bore 8 tests, yes, they do 12 core-bore tests on an 9 infrequent basis, but that phrase I used, the red 10 herring laser-beam focus, where do those take place?
11 It is all focused on, as you just quoted, the 12 subsurface laminar cracks that are admitted by 13 FirstEnergy, leaving a huge fraction of the shield 14 building unaddressed in terms of core bores.
15 JUDGE TRIKOUROS: Right, but what I just 16 heard was that what you are talking about is the 17 shield building AMP. There is a Structures AMP that 18 is doing a broader investigation.
19 MR. MATTHEWS: This sounds like an 20 unpolite attack on the Structures AMP.
21 JUDGE TRIKOUROS: All right. So, my final 22 item is a quote from Fifth Supplement. It says, 23 "There is extensive information, much of which is from 24 NRC's own staff, and thus, of an undisputed nature, 25 suggesting the universal presence of cracking in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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624 1 shield building from different origins, from the 2 pouring and original drawing of the concrete, the 3 construction of the shield building significantly out 4 of plumb, microcracking, moisture and filtration, 5 carbonation and corrosion of highly safety and 6 environmental risk significance." And it is asking 7 for a more thorough investigation.
8 What is this extensive information from 9 the NRC's own staff that is undisputed? Is this FOIA 10 material?
11 MR. KAMPS: No, it more refers to, 12 actually, the Performance Improvement International 13 Revised Root-Cause Assessment, which in mid-May 2012 14 revealed to us these vast areas of NRC questioning 15 about other likely root causes that likely acted in 16 combination. And that is where that came from.
17 JUDGE TRIKOUROS: All right. So, these 18 are really NRC concerns that you are putting into your 19 motion?
20 MR. KAMPS: They are NRC questions, strong 21 questions at times, that were never answered 22 satisfactorily by FirstEnergy.
23 JUDGE TRIKOUROS: I just want the staff to 24 respond to their never having been answered.
25 MS. KANATAS: Thank you, Your Honor.
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625 1 As we noted earlier in response to this 2 same attack, these minor clarifications that were made 3 to the PII report were in response to questions asked 4 in March on an onsite inspection, and the NRC 5 determined that all of their questions had, in fact, 6 been addressed.
7 As I identified it, there is an October 8 2nd, 2012 inspection report specifically stating that 9 none of the changes to either the Revised Root-Cause 10 Report or the PII revised report that Mr. Kamps is 11 referencing undermined any of the conclusions or 12 determinations the staff had made, which included that 13 the root-cause determination was reasonable. And that 14 is from a June 21st, 2012 inspection report.
15 Thank you.
16 JUDGE TRIKOUROS: All right. Thank you.
17 JUDGE FROEHLICH: I have just a few loose 18 ends that are kind of all over the board. I would 19 like to start with the requirement for consultation 20 under 2.323. I believe, from my review of the 21 pleadings, that there are statements that consultation 22 didn't take place with regard to the First Motion to 23 Amend July 11th and the Second Motion to Amend. And 24 then, I note, as I go through this, that there was a 25 Revised Report of Consultation that stated as NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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626 1 described in the July 11th report.
2 Can the parties clear up for me which 3 pleadings that were filed in this case lack the 4 required 2.323 consultation requirement?
5 I guess I will start with you, Counsel for 6 the Applicant.
7 MR. MATTHEWS: Thank you, Judge Froehlich.
8 As you identified, the Supplements in 9 issue are the First and Second, February 7th and June 10 the 4th. As the staff noted in response to the First 11 Supplement, Intervenors failed to certify the 12 consultation. Under 2.323(b), whether consultation 13 occurred, failure to certify that consultation 14 occurred is a basis.
15 That consultation, as 2.323(b) requires a 16 sincere effort to not only inform the parties of your 17 planned motion, but to try to resolve it, to try to 18 resolve the issue, and certifying that effort is the 19 requirement that triggers mandatory rejection.
20 In this case --
21 JUDGE FROEHLICH: Has that ever worked?
22 Have the contentions been resolved as part of the 23 consultation, in your experience?
24 MR. MATTHEWS: Yes, motions have been 25 narrowed. Yes, in this case, for example, with NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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627 1 respect to the Combined Answer to Supplements 3 and 4, 2 we were prepared to file a motion in order to 3 supplement, but we consulted with the staff and the 4 Intervenors, and together we agreed we could agree to 5 a revision of the filing. It didn't require a single 6 party.
7 So, yes, Judge Froehlich, I think that 8 there are cases. On dispositive motions, probably 9 unlikely. I take your point, but the Commission's 10 requirement isn't limited to specific housekeeping 11 motions or dispositive motions. It is general, as the 12 Board has made the parties aware; 2.323 has broad 13 application. We take the Board's instruction to 14 heart.
15 In that case, what Intervenors did is sent 16 an email at noon on Sunday indicating that they would 17 file at noon on Monday, and the parties should reply 18 whether they oppose or would support it. And they 19 didn't certify the consultation. So, it doesn't meet 20 either of those prongs, the sufficiency or the 21 certification.
22 JUDGE FROEHLICH: Counsel?
23 MS. KANATAS: That was the staff's 24 position as well. There was an email. It was sent on 25 a Sunday at 11:53 a.m. saying, "We plan to file NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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628 1 tomorrow. Please let us know." "We intend to file, 2 and indicate your opposition or consent by noon 3 tomorrow."
4 So, we don't feel like that gave parties 5 a sufficient chance to try to resolve any issues or 6 understand the issues that would be raised in the 7 motion.
8 JUDGE FROEHLICH: So, you thought it 9 wasn't a meaningful --
10 MS. KANATAS: No, it was not a meaningful 11 opportunity for us to consult with our own staff or 12 with the other parties.
13 JUDGE FROEHLICH: Okay. Mr. Lodge?
14 MR. LODGE: Well, first of all, I disagree 15 with a couple of aspects of the -- let me put it this 16 way: this I disagree with. A couple of weeks -- and 17 I don't have it with me; however, it is submitted --
18 a couple of weeks or less after the February filing, 19 I filed a certification that we had sent the emails, 20 that we had made the attempted consultations. So, 21 that is not, strictly speaking, an actually correct 22 statement, that we didn't consult at all.
23 The qualitative aspects of the 24 consultation, perhaps there has been a valuable 25 product from consultations in this case, but the only NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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629 1 example cited is one where the Intervenors essentially 2 acquiesced in a request that was being proffered by 3 the staff and by FirstEnergy.
4 The more interesting question, the more 5 relevant question, is whether, after we filed the 6 initial January 10th motion, what would the genuine, 7 substantive meaning of consultation really have been 8 after that?
9 I will jump to the end. The last three 10 filings, July and August, we certified we had lengthy 11 phone conversations. In fact, they were somewhat 12 contentious, but lengthy, productive in the sense that 13 we acquainted one another with our relative positions.
14 The one where I admit we did not certify 15 consultation and did not, in effect, consult was June 16 4th. I believe that is the Second Motion -- or pardon 17 me -- the Third. The Second. Yes, I am sorry, it is 18 the Second.
19 But I would like to point this out. That 20 was the Motion to Amend where we raised a number of 21 critiques involving the April 5th AMP. If part of the 22 consultation rule is to avoid blindsiding, there can 23 be no legitimate claim that we blindsided, for two 24 reasons.
25 On May 14th, four days before the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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630 1 originally-scheduled May 18th oral argument that this 2 Board very graciously granted an adjournment of, May 3 14th we had a phone conference with Mr. Matthews and 4 I believe Mr. Harris, wherein they, not we, suggested 5 that there is still time within a theoretically 60-day 6 window in the event that the Intervenors are 7 contemplating filing something related to the AMP.
8 In my motion filed shortly after that 9 conference on that day to the Board, which was 10 subsequently granted, we indicated, in essence, that 11 very thing, that we were, indeed, contemplating 12 further amendment of the existing contention. So, if 13 the blindsiding aspect is something that is a problem 14 with the Board, that claim cannot be made.
15 And while I admit in the conversation on 16 May 14th I didn't say, "So, what do you guys think if 17 we file a motion? Would you oppose it?", the 18 impression that we were left with was at least 19 equanimical. It was equanimous. I am not sure what 20 the term is, but there was not overt hostility to 21 seeking an adjournment, which was, indeed, agreed to 22 by all parties, and for that purpose.
23 So, yes, I didn't put a certification in 24 because, in honesty, I did not believe that at the 25 time we had consulted, and it was rather an oversight NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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631 1 that no mention was made in the motion at all, but, in 2 retrospect, certainly it is a little difficult to me 3 for the parties to credibly call us out for having 4 somehow violated this rule in a very substantive and 5 prejudicial fashion.
6 And the practice of email consultations, 7 "Hey, we're going to file this. What do you want to 8 do?", is something that has been used by both sides on 9 relatively-short timeframes. After Mr. Matthews 10 rather irritatedly brought to my attention that he 11 believed it necessary to have extended telephonic 12 discussions, we began having those every time.
13 And in July of this year, shortly before 14 filing the Summary Disposition Motion for the SAMA, 15 Mr. Matthews contacted me, wanted to have a 16 consultation. I responded that Mr. Kamps and I were 17 unavailable, essentially, for about approximately a 18 week. He responded, apparently having misread my 19 email, stating that, okay, well, then, this Wednesday 20 we will have a telephone conservation, or something a 21 day or so later.
22 And I responded saying we can't; we are 23 not going to be available this week, as I indicated 24 earlier. And in any event, we intend to oppose your 25 motion.
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632 1 So, it is conducted at that level and it 2 is conducted and can be construed as meaningfully at 3 that level.
4 I would throw in one final thing.
5 Consultation can play a role and can have some value.
6 But we filed our initial motion January 10th. It was 7 considerably at length opposed by both the staff and 8 by FirstEnergy. Call me cynical, but it seems to me 9 that any subsequent attempts to supplement our 10 existing motion regarding Contention 5 would be 11 greeted by opposition, period.
12 That is all I have. Thank you.
13 JUDGE FROEHLICH: Staff Counsel?
14 MS. KANATAS: Thank you, Your Honor.
15 Well, first, I don't agree with the 16 characterization that the staff, I believe the words 17 were, you know, opposed the contention as filed. We 18 indicated that we found a portion of it admissible 19 and, in fact, overlooked the procedural error that it 20 was not timely, and that the non-timely factors were 21 not even pled by recognizing that this was an 22 admissible concern for a safety license renewal 23 purpose. And so, to that extent, we thought that that 24 portion of the contention should be found admissible.
25 So, while we did vehemently oppose, and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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633 1 continue to vehemently oppose, any out-of-scope, 2 unsupported, immaterial claims that don't raise a 3 genuine dispute, we recognize, despite procedural 4 errors, that the filing in January, a portion of it 5 was admissible.
6 As to the fact that the parties may have 7 had notice about the Intervenors' intentions to file 8 a Supplement based on the April 5th AMP, staff's 9 response, June 29th response, indicated that, to the 10 extent the June 4th pleading of the Intervenors raised 11 concerns about the shield building monitoring AMP 12 filed April 5th, they were timely because the shield 13 building monitoring AMP of April 5th was new and 14 materially different information than previously 15 available and was relevant to the staff's license 16 renewal findings in this proceeding.
17 So, our June 29th pleading did not say 18 that those were non-timely. They said they were 19 timely. But, as we know, timely is the first step.
20 You have to raise an admissible claim against timely-21 filed information. So, we did say that none of the 22 claims made against the new and material information 23 met the contention admissibility standards, and that 24 remains our position.
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634 1 cited in the Second Supplement, including May 2011 2 RAIs on the groundwater. There were references to the 3 February 28th Root-Cause Report. There were 4 references to the Revised Root-Cause Report, and I 5 believe there were also references to the PII report, 6 without an indication of how any information in those 7 documents was new and materially different.
8 And certainly, if we had had the 9 opportunity to have a conversation about those 10 documents, we could have asked, what do you plan on 11 pointing to in those documents that is new and 12 materially different, and that perhaps could have 13 informed any pleading submitted.
14 Thank you.
15 MR. MATTHEWS: Judge Froehlich, if I might 16 just respond? I agree with the comments of NRC Staff 17 Counsel, but there are a couple of points that I would 18 add specifically in response to Mr. Lodge's 19 assertions.
20 The first is that 2.323(b) doesn't have a 21 no-harm, no-foul exception, nor does it have a 22 futility exception. The requirement is clear and 23 unambiguous.
24 I point out that, in the context of the 25 June 4th submittal, consultation may have actually NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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635 1 worked to the benefit of the Intervenors, although it 2 wouldn't have been my intent. My intent, as counsel, 3 is to represent my client.
4 But such consultation likely would have 5 benefitted them as the first question would have been, 6 what aspect of the AMP do you intend to challenge and 7 what are your bases? That would certainly have been 8 a heads-up that they might want to think about those.
9 And the assertion that I was agitated, I 10 acknowledge that I was agitated. I take the 11 consultation requirement to heart. It is an 12 obligation of counsel. It is an obligation as we 13 represent ourselves here before the Board. So, I do 14 take it very seriously. And the suggestion that I 15 didn't consult or failed to consult or was unwilling 16 to consult bothered me. So, yes, I raised my voice.
17 I would just point out, with respect to 18 the proposed or purported cure of the failure to 19 certify with respect to Supplement 1, that didn't 20 occur until July, after Intervenors were called on the 21 carpet for failing to consult at all with respect to 22 Supplement 2, to certify with respect to Supplement 2.
23 And even then, the certification doesn't cure the 24 substantive failure of the consultation. A drive-by 25 is still a drive-by.
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636 1 JUDGE FROEHLICH: Among the procedural 2 loose ends that I would like to address -- part of the 3 last responses already took us there -- I have 4 summarized for my own purposes the positions as to the 5 timeliness, the other aspect on the procedural side, 6 as it relates to the original contention and the 7 amendments.
8 As to the original filing, I understand 9 the staff position to be that it was filed untimely, 10 but good cause was found, and as he went through the 11 eight-factor test, it would meet the timeliness test.
12 The Applicant, given that first filing, responded that 13 it was either too early or too late, depending on what 14 trigger you were looking for.
15 Is that a fair summary of the timeliness 16 arguments?
17 MR. MATTHEWS: The trigger being the 18 availability of new material information --
19 JUDGE FROEHLICH: Yes, sir.
20 MR. MATTHEWS: -- not a particular 21 document.
22 JUDGE FROEHLICH: Okay. Any comment from 23 the Intervenors as to my characterization?
24 (No response.)
25 Okay. As to the First Amendment, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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637 1 basically, both the Applicant and staff found it non-2 timely.
3 MR. MATTHEWS: We would say it was non-4 timely and, also, that the subsequent Supplements 5 didn't cure the untimeliness, and internally had their 6 own timeliness issues.
7 JUDGE FROEHLICH: But let me rephrase. As 8 to the First Amendment, both the Applicant and the 9 staff found it not timely and not raising new 10 materially-different material?
11 MS. KANATAS: That is correct, Your Honor.
12 That is the staff's position.
13 MR. MATTHEWS: That is the Applicant's 14 position, following on.
15 JUDGE FROEHLICH: Thank you.
16 Intervenors, as to the First Amendment?
17 MR. KAMPS: This is the February 27th?
18 JUDGE FROEHLICH: February 27th, 2012, 19 yes.
20 MR. KAMPS: As we have said already, I 21 think, that was based on a February 8th, 2012 public 22 press release by Representative Kucinich. We acted 23 within 19 days of that information, the first clear 24 communication of the structural nature of the cracking 25 provided us in any way, shape, or form. I think we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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638 1 didn't meet a 60-day; we met a 19-day in that regard.
2 JUDGE FROEHLICH: Just for clarification, 3 so that I have it clear in my notes, my understanding 4 was that your first Motion to Amend, which was filed 5 on March 8th, is based on that February 8th Kucinich 6 letter and the January 31st inspection report?
7 MR. KAMPS: It was February 27th, was our 8 filing date.
9 JUDGE FROEHLICH: Okay. All right, but it 10 was based on the Kucinich letter and the inspection 11 report? Is that correct?
12 MR. KAMPS: Right.
13 MS. KANATAS: The staff would just like to 14 note that it seems as if all of the Intervenors' 15 filings are based on the publication of a document, 16 whether it be the publication of a February 8th op-ed 17 piece, the publication of a January 31st inspection 18 report, publication of their Root-Cause, Revised Root-19 Cause. It is really not the controlling date for 20 purposes of determining new and materially-different 21 information. Instead, it is whether there is new and 22 materially-different information in the document than 23 information previously available, and whether 24 Intervenors acted on this information within 60 days 25 of its becoming available to them.
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639 1 I believe Intervenors cited to a December 2 6th briefing of Representative Kucinich, and then 3 said, on December 7th, that certain revelations were 4 made public, things were made to them regarding those 5 briefings.
6 And again, the Board's ISO states not that 7 when something became publicly available, but when the 8 Intervenors had access to the information. And so, I 9 would just like to state that it is not the filing, 10 the publication date is not --
11 JUDGE FROEHLICH: I understand your point.
12 MR. KAMPS: Just to point out that 13 December 7th is about 30 days before January 10th. We 14 filed on January 10th. So, we put together the puzzle 15 pieces as best we could with late-breaking, fast-16 breaking, fast-moving proceedings. We were hoping for 17 a December 15th NRC public meeting where we would get 18 more clear information from the agency. That never 19 took place until January 5th.
20 MS. KANATAS: But, Mr. Kamps, we are 21 talking about not your first motion; we are talking 22 about your February 27th motion, where you cited to 23 information that was previously cited in your January 24 motion.
25 So, here, for the purpose of any of your NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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640 1 Supplements, it is new and materially-different 2 information than previously available. So, you just 3 pointed out that your January motion contained the 4 same claim as your First Supplement.
5 MR. LODGE: And if I may respond?
6 JUDGE FROEHLICH: Mr. Lodge?
7 MR. LODGE: The February 27th filing also 8 referenced a January 31st, 2012 inspection report that 9 talks about events in October. Clearly, that 10 indisputably is within the 60-day period, and to some 11 extent it confirmed information we had, but it also 12 provided additional new and material information.
13 JUDGE FROEHLICH: Okay. The Second 14 Amendment, the June 4th amendment, if I understand the 15 pleadings properly, staff contends that only those 16 arguments that relate to the AMP are timely.
17 Applicant is of the same position, that only those 18 arguments that respond to the AMP or the Revised Root-19 Causes Report would be timely.
20 MR. MATTHEWS: That is our position, that 21 that is the only new material information sufficient 22 to base this pleading. But this pleading does not 23 resurrect the untimely contention.
24 JUDGE FROEHLICH: Understood.
25 Counsel?
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641 1 MS. KANATAS: Yes, to the extent that it 2 challenged the AMP, it was timely filed.
3 Thank you.
4 JUDGE FROEHLICH: Right, but only those --
5 MS. KANATAS: Yes, only those.
6 JUDGE FROEHLICH: Any comment from the 7 Intervenors?
8 MR. KAMPS: Can we take one moment?
9 JUDGE FROEHLICH: Surely.
10 (Pause.)
11 MR. LODGE: Well, we believe the original 12 filing was timely, and it appears that if that --
13 JUDGE FROEHLICH: The original filing?
14 You mean --
15 MR. LODGE: The January 10th. As I 16 gathered, FirstEnergy is saying the original motion is 17 not timely; therefore, attempts to supplement it must 18 fail. No?
19 JUDGE FROEHLICH: That is not how I 20 understood the Applicant's response.
21 MR. LODGE: Oh, my apology then.
22 MR. MATTHEWS: Our position is that the 23 initial contention was untimely. It was not amended.
24 Supplements don't resurrect the untimeliness of the 25 initial contention. And as to the timeliness of those NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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642 1 pleadings, whether they should be in the record at 2 all, there are issues with respect to each of the 3 pleadings.
4 JUDGE FROEHLICH: Okay.
5 MR. KAMPS: And if I understand the NRC's 6 objection, I would just point out that the reason that 7 we would raise points again is just to make the 8 connection, to make our communications clear.
9 We had timely raised those earlier points 10 in those earlier filings. And so, if we repeat them 11 in a later filing, it is often just to provide 12 context, to lay out the clear narrative of our current 13 timely contention.
14 JUDGE FROEHLICH: All right. The Third 15 and Fourth Amendments were responded to in a single 16 pleading. That dealt from the PII report.
17 As the staff reviewed that pleading, they 18 found that there was nothing new or materially 19 different in that amendment.
20 The Applicant I guess was of the same 21 opinion; nothing new, nothing material is different.
22 Is that correct?
23 MR. MATTHEWS: Our view is a little more 24 first principled.
25 JUDGE FROEHLICH: Okay.
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643 1 MR. MATTHEWS: The same conclusion, that 2 Intervenors cannot challenge the entire root cause 3 because it has been revised. They can challenge only 4 those portions that are new or materially different, 5 the changes, the deletions or the additions. That is 6 the only new material information, if it, in fact, is 7 new or material. If it was previously available in 8 other places, as we believe most of it was, then it, 9 too, fails the new material information test.
10 JUDGE FROEHLICH: Staff?
11 MS. KANATAS: Correct. That is our 12 position as well. And as our response to both the 13 Third and Fourth Supplement was combined into one, we 14 actually included excerpts from the Root-Cause where 15 in the Revised Root-Cause the exact same text was in 16 both documents, but was cited as new and materially-17 different solely because it was in the May 16th 18 Revised Root-Cause.
19 JUDGE FROEHLICH: Okay. Intervenors?
20 MR. KAMPS: Just to respond, the July 21 16th, filing of ours July 23rd. So, the Revised Root-22 Cause Report, what we exclusively focused on in both 23 of our filings were the very sections identified first 24 by FirstEnergy, then by PII, as to their changes from 25 Root-Cause to Revised Root-Cause. That is exclusively NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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644 1 what we focused on. And we found the materially 2 different. We tried to make those arguments in those 3 two filings in July.
4 JUDGE FROEHLICH: And the final amendment, 5 both the staff and the Applicant say that there is 6 just not any new or materially-different information 7 in the Fifth Amendment. Does that correctly summarize 8 your position?
9 MS. KANATAS: Yes, Your Honor.
10 JUDGE FROEHLICH: Applicant?
11 MR. MATTHEWS: The same, Your Honor.
12 JUDGE FROEHLICH: All right. Intervenors?
13 The final amendment?
14 MR. MATTHEWS: And I am sorry, Judge 15 Froehlich, just for clarification, not only is the 16 information not new and material, but it is not new 17 nor is it material; it was beyond the 60 days. This 18 is the one where the Intervenors are trying to 19 bootstrap the three more days for mail by FOIA. They 20 don't tell us when they received the documents. They 21 filed it greater than 60 days after the NRC sent the 22 FOIA documents. They don't tell us how long they had 23 them, but they are suggesting somehow that they should 24 get additional time for service, citing a section 25 apropos to the proceedings. The three days they cite NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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645 1 to are for service by parties.
2 JUDGE FROEHLICH: And so, the position of 3 FENOC on this was both that the filing was untimely, 4 the first point, and, second, that it was based on 5 information that was previously available.
6 MR. MATTHEWS: Correct.
7 JUDGE FROEHLICH: But it didn't submit any 8 new or materially-different information?
9 MR. MATTHEWS: That is correct, Judge 10 Froehlich.
11 JUDGE FROEHLICH: All right. Intervenors?
12 MR. KAMPS: Can we have one moment?
13 JUDGE FROEHLICH: Take another one, sure.
14 (Pause.)
15 MR. KAMPS: Well, just regarding the 16 timeliness of our August 16th filing, I have got the 17 postmark in hand. It is postmarked June 14th. We did 18 the calculation on the calendar and filed within the 19 60 days, according to NRC regulations, which does 20 provide a certain amount of time for the mail 21 delivery. It is postmarked on June 14th, and it 22 landed at our office some several days later.
23 And so, we did look at the calendar, 24 figured out what our deadline would be. The reason 25 that we pushed the limits -- that has been raised by NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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646 1 FirstEnergy -- is we try to do as quality a job as we 2 can by taking the time that we have been allotted by 3 the Board to do so.
4 And regarding the merits or --
5 JUDGE FROEHLICH: New and material.
6 MR. KAMPS: -- the new and material 7 information, there were some documents in the FOIA 8 Response No. 1, Appendix B, that we found most 9 materially relevant.
10 Congressman Kucinich revealed to us for 11 the first time the structural nature of the cracking, 12 but the documents signed by Pete Hernandez of NRC, by 13 Abdul Sheikh of NRC, drove that point home in a most 14 dramatic fashion when Pete Hernandez asked, it is not 15 a question of architectural elements falling off; it 16 is a question of will the shield building remain 17 standing, and Abdul Sheikh pointing out a 90-percent 18 failure risk with a small additional load. And the 19 fact that the shield building, when brand-new, was not 20 designed to withstand accident conditions, let alone 21 in its current severely-cracked state.
22 So, we found that very materially relevant 23 to this proceeding. The risks of the cracking, that 24 is the heart of our contention.
25 JUDGE FROEHLICH: Staff Counsel, as we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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647 1 move now from the procedural, Mr. Kamps has raised 2 again the emails, I guess from staff member Sheikh and 3 staff member --
4 MS. KANATAS: Pete Hernandez.
5 JUDGE FROEHLICH: -- Hernandez, right.
6 MS. KANATAS: Yes.
7 JUDGE FROEHLICH: And that speaks to the 8 structural integrity and collapse and such things.
9 Could you, once again, explain when these materials, 10 one, were available to the Intervenors, and then, what 11 relevance they would have, if you put them in context?
12 I know that the Intervenors rely heavily on these two 13 emails, and I want to see if their reliance is 14 appropriate or misplaced.
15 MS. KANATAS: Well, while the Intervenors 16 are citing to their Fifth Supplement for citing these 17 emails, they were also cited in their Fourth 18 Supplement. But, as to when they got them, I am not 19 sure of the exact date that they received them, but, 20 again, it is whether or not that information is 21 materially different than information previously 22 available, as well as meeting the 2.309(f)(1) 23 standards.
24 As those emails were from November, I 25 believe, and they were pre-restart, they were NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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648 1 internal, deliberative emails based on preliminary 2 cursory review of the Applicant's calculations, that 3 were being looked at in terms of supporting 4 operability of the plant following the discovery of 5 the cracks.
6 And as the December 2nd CAL memorialized, 7 the staff was, after a string of emails, inspections, 8 back and forth, questions, questions asked and 9 answered sufficiently, able to determine that the 10 Applicant had provided the staff with the reasonable 11 assurance the staff needed in order to say that the 12 shield building was operable.
13 So, preliminary discussions among staff, 14 as we have repeatedly pointed out in our responses to 15 these claims, is not material for purposes of the 16 license renewal decisions being made, either, as it is 17 outside the scope.
18 JUDGE FROEHLICH: Material to the scope of 19 the proceedings or new and materially --
20 MS. KANATAS: Both.
21 JUDGE FROEHLICH: -- different from 22 anything --
23 MS. KANATAS: Both. It is not materially 24 different than any argument previously made, that the 25 restart was unsafe, that there was a rush to restart.
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649 1 I think that it is fairly clear that those themes run 2 throughout their January motion, as through their 3 Fifth Motion to Supplement, that the restart, as seen 4 by Intervenors, was rushed, and that we did not have 5 the necessary reasonable assurance that we should have 6 had.
7 And that is not a materially-different 8 argument. It is not based on any information that is 9 materially different.
10 JUDGE FROEHLICH: So, it is not materially 11 different and --
12 MS. KANATAS: Right, and it also doesn't 13 go to the materiality in 2.309(f)(1) as opposed to 14 (f)(2).
15 JUDGE FROEHLICH: Because of scope?
16 MS. KANATAS: It does not impact our 17 decision.
18 JUDGE FROEHLICH: Okay.
19 MS. KANATAS: It does not indicate any 20 impact on our decision on whether or not the shield 21 building monitoring AMP will be able to adequately 22 manage any aging effects of the cracking in the period 23 of extended operation. This is a concern with the 24 current operation of the plant.
25 JUDGE FROEHLICH: So, hence, it is out-of-NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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650 1 scope. Okay.
2 MS. KANATAS: Yes.
3 JUDGE FROEHLICH: All right. Mr. Lodge?
4 MR. LODGE: This is a classic. This is a 5 classic example, Your Honors, of trial by affidavit.
6 You have just heard a substantive closing argument of 7 what our witnesses would have said at trial. Our 8 witnesses would have said at trial that "We knew about 9 these preliminary calculations and we counterargued 10 with staff and resolved all of our differences."
11 Somewhere in this last 10 or 11 months, 12 this matter crept away -- talk about mission creep --
13 this moved away from being a motion to admit a 14 contention to why don't the Intervenors have proof 15 beyond a reasonable doubt. Essentially, it began to 16 become a trial on the merits of the original 17 contentions.
18 The matters that we submitted were within 19 60 days, had been made known to us only within the 60-20 day period. They were new and material at least 21 insofar as they began to illuminate more the 22 credibility of the restart decision, if you will, the 23 regulatory interface with the utility, the aspects of 24 why the agency, even before it had heard from one of 25 its experts, issues a confirmatory action letter, and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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651 1 literally, on the day when Davis-Besse is uprating 2 power. It is amazing. This is a textbook example of 3 what to avoid, what this Board needs to essentially 4 ignore in making a determination as to admissibility 5 of the original contention.
6 We are being asked to respond as though we 7 have just had a trial and heard sworn testimony, and 8 it is all unsworn representations -- and mine, too --
9 unsworn representations of counsel. This is absurd.
10 Thank you.
11 MS. KANATAS: Your Honors, we are 12 certainly not expecting the kind of pleading that 13 Intervenors are describing. What we are expecting is 14 a pleading in line with the Commission's regulations 15 and precedent. One of those precedents is the staff's 16 safety review is not subject to challenge in a license 17 renewal proceeding like this one, and the current 18 operating issues are outside the scope of a license 19 renewal proceeding.
20 So, we are looking for and wanted to find, 21 and were interested in hearing, about any ties to 22 aging effects associated with these cracks and any 23 claimed, supported, genuine disputes with FENOC's plan 24 for that. To date, there has been no such claim made 25 and no claim made against the August 16th AMP, no NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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652 1 supported, genuine claim made against the April 5th 2 AMP, and no other portion of the license renewal 3 application.
4 MR. MATTHEWS: If I may respond, Judge 5 Froehlich?
6 JUDGE FROEHLICH: Yes, please.
7 MR. MATTHEWS: And very briefly, with 8 respect to creep, what has crept is the allegations 9 about what the standard is. The standard has not 10 changed. Today it has gone from the supposed summary 11 disposition standard the Intervenors are held to, to 12 now beyond a reasonable doubt.
13 It is simply the contention pleading 14 standard in 309(f)(2), but all the Intervenors have 15 presented is exactly what Mr. Lodge just identified, 16 unsworn speculation of counsel. That is all they have 17 identified. There is no support for any of the 18 contentions, timely or untimely.
19 JUDGE FROEHLICH: Care to be heard? Or I 20 will move on to my next.
21 MR. LODGE: The Board need only apply the 22 standards for admissibility, that there be a cogent 23 statement of facts and a basis for the contention. We 24 believe we have certainly shown that.
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653 1 affidavits. We don't have to provide a lot of 2 information. In fact, what we were doing was 3 providing information from expert witnesses, if you 4 will, engineers that were staff engineers.
5 We have articulated sufficient evidence to 6 warrant allowing this matter to proceed to an 7 adjudicatory hearing. When I make my statements about 8 the standard is creeping, it is. The expectation 9 somewhere along the line has shifted from stating a 10 basis to -- and I understand timeliness and the 11 procedural things -- but all of these substantive 12 arguments are pretty specious, given the fact that 13 they really have stepped into the dangerous zone where 14 they are actually arguing about what the evidence at 15 trial would show; since the evidence would be bad, 16 let's just not bother with it. And that is 17 essentially a Motion for Summary Disposition at least.
18 MR. KAMPS: Can I just add briefly? This 19 question of timeliness on the FOIA filing, the August 20 16th filing of ours, I am surprised because my 21 understanding is that, in our perspective, a very 22 short, 60-day window to present information in a 23 contention or amendment form is so that this 24 proceeding will progress in a reasonable fashion and 25 not be delayed. That is my understanding, unless it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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654 1 is a "gotcha" standard, which is unfortunate.
2 But in this case, just look at the facts 3 here. We attended the January 5th Camp Perry meeting.
4 We asked the Acting Regional Administrator of the NRC 5 for Region III, Cynthia Peterson, for the documents on 6 which the rushed restart approval was based. She 7 refused to give them to us and effectively dared us to 8 FOIA the agency, which we did in short order on 9 January 26th, three weeks later.
10 And it took the NRC until June 12th --
11 that is the timestamp on their FOIA Response No. 1, 12 Appendix B, the only relevant part because those 13 documents have never been divulged before in any way, 14 and that is why we stuck to them, because they are 15 relevant in that way.
16 The postmark date, which I said I have in 17 hand, is June 14th. It took several days for this to 18 arrive at my office, and we took the 60 days allotted 19 us under your rules to prepare our August 16th filing.
20 So, I am surprised by the challenge to the 21 timeliness because the delay was not ours; the delay 22 was -- and it took many phone calls by myself and our 23 attorney to the NRC FOIA office to get this 24 information because, as the history shows, the 25 original oral argument pre-hearings were to have been NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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655 1 on May 18th for this.
2 So, we were fearful that decisions would 3 be made by the Licensing Board long before we had in 4 hand what we had asked for on January 5th, actually.
5 And what is really interesting about all this is that 6 this is a partial response. To this day, it is still 7 a partial response. There is more to come.
8 So, delays in the proceeding being the 9 problem, that is not our fault by any means. We have 10 done our best. I wish we could have done more. I 11 wish we could have responded to some of these recent 12 filings, but we are limited in resources and we have 13 expended a lot of resources this year to provide what 14 has been provided. And we will continue to do our 15 best in that regard.
16 JUDGE FROEHLICH: Thank you.
17 Moving on, Staff Counsel, I believe we did 18 cover this before, but I would like to just wrap up 19 with this. The staff has argued to us that the Root-20 Causes Report is really not relevant to the proposed 21 contention which deals with cracking.
22 What I would like to know, if the staff or 23 the Applicant used the Root-Causes Report in creating 24 the Aging Management Plans. What role does the Root-25 Causes Report play in preparing an Aging Management NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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656 1 Plan? Does that influence how you will address the 2 future procedures in preparing your Aging Management 3 Plan?
4 MR. HARRIS: Your Honor, it may be more 5 appropriate to have FirstEnergy go first in terms 6 of --
7 JUDGE FROEHLICH: That's fine.
8 MR. HARRIS: -- what they prepared, the 9 aging management program, and then I can follow on 10 after that.
11 JUDGE FROEHLICH: Okay.
12 MR. MATTHEWS: Thank you. Judge, this is 13 Tim Matthews for the Applicant.
14 The Root-Cause Report is not part of the 15 license renewal application. The Root-Cause Report 16 was FENOC's effort to understand the cause of the 17 cracking in real-time, current licensing basis to 18 understand it. That root cause didn't identify any 19 aging factor as a cause. It didn't identify any aging 20 effect on the potential, for example, of propagation.
21 Nonetheless, separate and apart from 22 whether it is the right root cause or any root cause, 23 FENOC proposed a shield building aging management 24 program to address the potential that there could be 25 aging effects on propagation of the cracks, whatever NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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657 1 their cause. So, there is not a required linkage 2 between the root cause and the shield building AMP.
3 Certainly, there is a link in time, and the authors 4 were aware of the root cause, but it is not a 5 necessary linkage.
6 JUDGE FROEHLICH: Because there are 7 different types of cracks, as I understand it, and 8 these cracks have different causes, doesn't the cause 9 of the crack indicate or give some clue to what kind 10 of program need be put in place to detect cracks that 11 arise from various causes?
12 MR. MATTHEWS: The cracking that the 13 Intervenors have identified, pointed to late, are the 14 kinds of issues to be evaluated during the current 15 operations under the Maintenance Rule and during the 16 period of license renewal, during the period of 17 extended operations under the Structures AMP. That 18 AMP continues the inspections of the structures, 19 similar to and including the shield building, for 20 those kinds of cracking phenomena.
21 The subsurface laminar cracking was a 22 unique, is a unique event, and a condition of the 23 shield building for which Davis-Besse, the FENOC 24 wanted to be sure that aging effects, don't expect 25 them, but should there be aging effects that could NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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658 1 affect the cracking, such as propagation, that they 2 would evaluate that potential.
3 So, there is no known linkage between 4 these aging effects. There is the alleged 5 conflagration that the Intervenors point to, but there 6 is not a basis in fact, either that they have pointed 7 to or that FirstEnergy has identified.
8 JUDGE FROEHLICH: Okay. Mr. Harris?
9 MR. HARRIS: Your Honor, this is Mr.
10 Harris for the staff.
11 I think there are two issues here. If you 12 look at the non-sublaminar cracks that were originally 13 discovered most recently, the shield building was 14 subject to these other types of aging effects at the 15 time that the license application was addressed. If 16 the structure monitoring AMP was inadequate at that 17 time, then Intervenors should have raised it in their 18 original filings in this proceeding. And the fact is 19 that the structure monitoring AMP has not changed and 20 it is still monitoring for those other types of 21 cracks, spalling, microcracks.
22 So, we are really looking at this new, 23 unique kind of crack here. I think it may be 24 appropriate to sort of talk about it by analogy. This 25 AMP is a monitoring and trending AMP. So, it looks at NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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659 1 the cracks and looks at their growth, and it is going 2 to detect changes in the crack regardless of the 3 reason why those changes occur.
4 And I think if you look at something like 5 the flow-accelerated corrosion programs that are 6 implemented in lots of plants, it is that they do use 7 a model to sort of originally identify places they are 8 going to inspect. But once they inspect, they inspect 9 the thickness of the walls there, and regardless of 10 whether it was flow-accelerated corrosion or erosion, 11 you detect how much that wall has thinned, and then 12 you trend it out to determine whether or not it is 13 acceptable.
14 JUDGE TRIKOUROS: Let me jump in for a 15 second. Is that built in? Because we have had a 16 frequency question regarding these AMPs. Is it 17 analogous to, say, the check code, identification of 18 an initial location to look at, but with adjustments 19 to frequency and locations that occur later, is that 20 part of the program?
21 MR. HARRIS: Well, I believe that if you 22 find something that is unexpected, so if you found the 23 cracks were growing, of course, that goes into their 24 corrective action programs, and then they will have to 25 evaluate it to adjust the frequency.
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660 1 The way the program is currently laid out, 2 I believe it is a two-year if they continue not to 3 find anything, and I am not sure how many two-year 4 intervals there are. Then, they go to five years.
5 And then, they stay at five years for the rest of 6 their time.
7 But were they to find additional cracking 8 that is growing faster or the trend speeds up somehow, 9 then you would expect that it would go into their 10 corrective action program. And that is one of the 11 things that they would have to address, is whether or 12 not you need to take these more frequently and measure 13 them more frequently. Because there are two things 14 you have to do: determine whether or not it 15 jeopardizes the shield building's functions and when 16 do I need to inspect it to make sure that it won't 17 jeopardize the shield building's functions.
18 JUDGE TRIKOUROS: And what was the basis 19 for the initial inspection frequency?
20 MR. MATTHEWS: Thank you, Judge Trikouros.
21 That is exactly the point. This is Tim Matthews for 22 the Applicant.
23 But I would like to point out that 24 NUREG-1801 provides recommendations for structures 25 monitoring. Rev 2 recommends five years for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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661 1 structures monitoring.
2 Because of the condition, FENOC 3 conservatively set its inspection frequency at the 4 refueling cycles of two years. So, FENOC is doing 5 them on two years and is committed to doing them in 6 the current licensing term and into the period of 7 extended operation until 2019 on that two-year 8 interval. And if it hasn't found evidence of 9 propagation, then it would revert to the five-year 10 recommended by the staff, NUREG, and the American 11 Concrete Institute.
12 And the Intervenors haven't pointed to any 13 basis why two years is inadequate, which is more 14 important to the question before the Board.
15 MR. KAMPS: Can I respond, Judge 16 Trikouros?
17 So, I couldn't remember previously when 18 this came up, but here is the citation I was referring 19 to. It is in response to why the frequency is not a 20 problem they say, is a problem we say, the infrequent 21 nature of the tests.
22 This is page 25 of our initial contention 23 filing. It is paragraph 25. It has to do with 24 accelerated degradation.
25 So, we refer to Congressman Kucinich in a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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662 1 House hearing on December 14th, 2011. The quote from 2 Congressman Kucinich is that "FirstEnergy's insurance 3 company became worried" -- this is referring to the 4 2002 corrosion incident -- "FirstEnergy's insurance 5 company became worried and commissioned an independent 6 study to analyze the data from the incident. The 7 study, which was released in April 2007, painted an 8 even darker picture than the regulatory rebukes that 9 came before it. The report found that corrosion of 10 the steel plate happened at a faster rate than was 11 reported by FirstEnergy, bringing the reactor closer 12 to a catastrophic incident than had previously been 13 reported."
14 So, that is the quote from Congressman 15 Kucinich. And we went on to try to tie it to this 16 issue of shield building degradation. We said, "Such 17 accelerating age-related degradation is entirely 18 possible vis-a-vis the cracking of the concrete shield 19 building. Two, if so, Davis-Besse shielding building 20 cracking will become more and more safety-significant 21 with each passing year, especially during the extended 22 operations license."
23 And our point is that these things can 24 sneak up on both the company and NRC. In fact, that 25 lesson that should have been learned from the 2002 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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663 1 hole-in-the-head fiasco was that even NRC missed clear 2 evidence of the severity of that problem. They had in 3 their possession a photograph of the lid -- it is now 4 infamously referred to as the "red photograph" -- for 5 some time and didn't recognize the significance of 6 what it meant. It meant that there was massive 7 corrosion of the lid taking place.
8 So, that is why the frequency of the 9 testing is so important, to catch accelerated 10 degradation, which if you don't understand the root 11 cause, if you don't understand the extent -- and I 12 will close with that -- the extent, again, the laser 13 focus is on subsurface laminar cracking in certain 14 places, the flute shoulders, the main steamline 15 penetrations, the upper 20 feet.
16 The rest of the shield building, it has 17 been said by FirstEnergy, has been looked at with 18 60,000 impulse-response tests which are not industry-19 validated. They are not backed up with core bores 20 which FirstEnergy in its recent response to an RAI 21 actually said they need to be backed up. They didn't 22 say about the 60,000, but they said impulse-response 23 testing is not industry-validated; it needs to be 24 backed up with core bores. That is not taking place.
25 An earlier point from a time ago was that, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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664 1 where are the 12 core bores under the Aging Management 2 Plan? They are focused, as I said, on the fluke 3 shoulders, the main steamline penetrations. That is 4 the focus, not the rest of the building. We are 5 worried about the root causes of multiple forms of 6 cracks, multiple root causes, acting in combination 7 very likely, that are not being monitored.
8 JUDGE TRIKOUROS: The two-year frequency, 9 the initial two-year frequency is for both structures 10 and shield building or just shield building?
11 MR. MATTHEWS: I have been corrected, 12 Judge Trikouros. The two years is actually one year 13 during this 2012 and 2013, and then it moves to two 14 years.
15 JUDGE TRIKOUROS: For which AMP?
16 MR. MATTHEWS: The shield building AMP 17 actually doesn't -- the AMPS don't begin now, during 18 the period of current licensing. So, the inspections 19 are being done now under the Maintenance Rule.
20 JUDGE FROEHLICH: And the interval under 21 the Maintenance Rule is, please?
22 MR. MATTHEWS: They are doing them under 23 one year, doing the evaluations of the existing core 24 bores. There are 90 core bores. Of those 90 core 25 bores, FirstEnergy is evaluating 12 of them on this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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665 1 annual basis in 2012, 2013. That will go to a two-2 year cycle until 2019. At that point, they will make 3 a decision as to whether it is appropriate to revert 4 to the normal five-year cycle.
5 JUDGE TRIKOUROS: Mr. Kamps, did you hear 6 that?
7 MR. KAMPS: Yes.
8 JUDGE TRIKOUROS: These are one-year 9 inspection frequencies initially, and they will be 10 conducted prior to the period of extended operation.
11 What were you thinking about, six-month frequencies or 12 monthly frequencies? These are very extensive 13 operations, I understand.
14 (Pause.)
15 While they are thinking about that, I 16 wanted to ask staff, what is the staff's involvement 17 in the outcome of these inspections? Is it being 18 monitored by the onsite inspector? Or are there 19 submittals required?
20 MS. KANATAS: One moment, Your Honor.
21 Thank you.
22 (Pause.)
23 MR. HARRIS: It would mostly be monitored 24 by the onsite inspectors when they are being done. I 25 mean, some of these inspections, there are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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666 1 requirements in like how to submit the results of it, 2 but it would be conducted the same way. Most other 3 monitoring licensees, when they have a license, the 4 onsite inspectors would do the majority of the 5 inspections. Of course, then, you have inspections 6 for particular things.
7 At this point, I can't say that it would 8 necessarily be something that would be looked at, but 9 I imagine that, because of the nature of it, that at 10 last the first few inspections would probably get more 11 attention. But that is something that, you know, it 12 is speculation on my part in terms of that. But it is 13 going to be part of the resident inspectors and the 14 ROP process.
15 MR. MATTHEWS: I would supplement Mr.
16 Harris' answer in that prior to the period of extended 17 operation, the staff does inspections of the AMPs, 18 whether the AMPs are up and running and ready for the 19 period of extended operation.
20 MR. LODGE: To respond to your question, 21 Judge Trikouros, first of all, the Intervenors are not 22 going to commit to a frequency of investigation or 23 inspection. However, we endorse the musings, the 24 wonderings of Pete Hernandez who pointed out, quote, 25 "Because cracks have been found through multiple core NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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667 1 bores, shouldn't the appropriate calculations account 2 for the combined effects of cracks in all the 3 shoulders, and not just one, by opening, and not just 4 individually?"
5 Quote: "From what I understand, impulse-6 response mapping is only an indicator, but must be 7 validated by core bores. Does basing all the 8 calculations on a length of a 12-foot crack discount 9 the calculations altogether? Because we have 10 indications of cracks at distances greater than 12 11 feet. This also seems to assume there is only one 12 crack and not as many as the core bores seem to prove.
13 Isn't IR mapping only useful at a limited depth, too?
14 So that using it to evaluate a 48-inch-thick piece of 15 concrete is not realistic."
16 We don't believe there has been a 17 realistic investigation. Periodic inspections limited 18 to a few dozen or a couple or 20 or 40 core bores 19 doesn't seem to address the concerns of the NRC staff.
20 We have not seen any evidence that essentially changes 21 Pete Hernandez' mind that we know of, other than 22 denial, and denial, incidentally, without any 23 particular evidentiary or expert basis.
24 JUDGE TRIKOUROS: Could the staff address 25 that? Are Mr. Hernandez' concerns outstanding or have NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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668 1 they been resolved?
2 MS. KANATAS: Thank you, Your Honor.
3 Those issues, as we have repeatedly stated 4 today, the Peter Hernandez and Abdul Sheikh emails are 5 from November. I believe this is Reference B9 and B26 6 of the FOIA for Pete Hernandez and Abdul Sheikh, and 7 there are a couple of other emails from Pete Hernandez 8 I believe along the same timeframe of November, pre-9 restart, conversations related to restart, and 10 calculations for operability that were internal staff 11 preliminary discussions related to restart. And they 12 were addressed and we did have reasonable assurance 13 when the CAL was issued. And so, this is, again --
14 JUDGE TRIKOUROS: The problem that we have 15 here, Mr. Kamps, is that you are using NRC staff 16 internal documents as your basis, but when the staff 17 says that we have resolved our problem, you are saying 18 no. But what we really would need is an independent 19 source of information.
20 MR. KAMPS: Well, a couple of points, yes, 21 a couple of points. One point, to the NRC staff just 22 now, is that it was said that this was a restart of 23 reactor discussions. But in that FOIA response, 24 Appendix B, 50-plus documents, those discussions were 25 interspersed with many of the same individuals NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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669 1 communicating with the Division of License Renewal 2 about the impacts of the situation on the 20-year 3 license extension. So, these conversations involved 4 Divisions of License Renewal, involved the license 5 renewal application.
6 Another point we have raised previously is 7 that the FOIA response is incomplete; it is partial.
8 And so, if those recantations of Pete Hernandez' 9 questions and concerns, of Abdul Sheikh's questions 10 and concerns took place, they have not been provided 11 to us. We are awaiting further -- we are up to 12 Appendix D at this point, and it has not been 13 indicated to us when further FOIA responses will come 14 or how many there will be. We just know it is 15 incomplete at this point.
16 JUDGE FROEHLICH: I am trying to put this 17 last dialog into the context of 2.309. As I hear your 18 response, Mr. Lodge, that there are alleged facts that 19 form of the basis of this contention, and those 20 alleged facts are statements or email comments from 21 Commission employees, from Commission engineers.
22 These are alleged facts upon which you base your 23 contentions.
24 And what I am hearing now from the staff 25 is that those alleged facts have been satisfied or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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670 1 have been resolved to the satisfaction of the 2 engineers who made those comments back in November.
3 If those alleged facts have not been resolved to the 4 satisfaction of the people who made them back then, 5 what exists today to support your contention? What 6 alleged facts, if these facts have been resolved, have 7 been disposed of because of further investigation, 8 further testing, further calculations, what, then, 9 remains?
10 MR. LODGE: With all due respect, this is 11 sounding like a trial-on-the-merits kind of issue.
12 JUDGE FROEHLICH: At a trial on the 13 merits, we would need to receive evidence --
14 MR. LODGE: Right.
15 JUDGE FROEHLICH: -- that would support a 16 position. I don't think you are going to get the kind 17 of evidence you want from Mr. Sheikh or Mr. Hernandez.
18 So, I am looking to you to say what, then, will 19 support this contention.
20 MR. LODGE: Well, had FOIA responses been 21 much more timely and forthcoming, we might have 22 supplemented our FOIA requests. That is No. 1.
23 No. 2, perhaps it would be productive to 24 ask this question of the other parties also, because 25 I am interested in knowing why we haven't seen an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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671 1 affidavit from Sheikh or Hernandez recanting or 2 saying, "I'm fine. Everything is acceptable," in 3 response to our motion filings, rather than saying 4 this isn't material, this is continuing license basis.
5 I'm sorry, I am quibbling with the 6 impression that the Board may have that we are not 7 going to be able to establish through cross-8 examination or other discovery methodology some of the 9 perhaps continuing dissenting concerns of the staff.
10 The problem is there is an enormous gulf 11 that has been uncovered here. If you believe these 12 two engineers -- and let me argue the counter to you, 13 sir. What if they actually say, "You know, my 14 questions have never really been satisfactorily 15 answered by other people within the engineering 16 profession at the NRC or at FENOC."? Then, you are 17 posed with this enormous concerning problem at the 18 shield building.
19 One of the facts, incidentally, Your 20 Honor, that I would be prepared to point out closing 21 is that, on December 31st, 2011, there was a 4.0 22 earthquake originating in the Youngstown area. We 23 pointed that out in our initial motion filing.
24 The problem is that there is evidence that 25 suggests further investigation because of the serious, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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672 1 serious implications if this minority viewpoint, if 2 it, indeed, is simply a minority viewpoint, is true or 3 at least quite reasonably based.
4 So, I am not sure if that answers your 5 question. It probably doesn't.
6 But, before the application was filed, the 7 ACRS questioned the -- pardon me -- pre-operations I 8 guess in November, the ACRS -- pre-operations in the 9 1970s -- questioned the seismic reliability of the 10 Davis-Besse plant, where it is situated, given seismic 11 possibilities.
12 This is a continuing huge problem. Either 13 this is simply minor cracking or it isn't. And that 14 is a disturbing question that needs to be answered 15 certainly more comprehensively than it has been to 16 this point.
17 JUDGE FROEHLICH: Mr. Lodge, can you cite 18 me to the pleadings thus far, to any evidence or any 19 alleged facts other than Mr. Hernandez and Mr. Sheikh, 20 that these are large cracks or that it hasn't been 21 evaluated, that there is a lingering concern among the 22 engineering community as to the appropriateness of the 23 Aging Management Plan that has been put into effect, 24 or will be put into effect, to deal with cracks in the 25 period of extended operation?
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673 1 MR. LODGE: If I can have a few minutes, 2 I will try to.
3 JUDGE FROEHLICH: Okay.
4 MR. LODGE: I think I can't point to an 5 October 2012 lingering concern or a November 2012 6 lingering concern, but we have been trying to obtain 7 information from the NRC to discern whether or not 8 there is. But I will certainly attempt to answer the 9 rest of your question.
10 JUDGE FROEHLICH: All right. We will take 11 a break when we are finished with our questions and 12 closing arguments. You can use that time and work it 13 into an answer in closing argument, if you wish.
14 I guess my last kind of residual thing was 15 to confirm with the staff the current projected dates 16 for the SER and the DSEIS. Could you just state for 17 me once more, if you have already, the SER and the 18 DSEIS?
19 MS. KANATAS: Yes. The SER is due out 20 January 2013, and the staff expects to publish its 21 Draft SEIS by the end of February 2013.
22 JUDGE FROEHLICH: Okay. Thank you, 23 Counsel.
24 JUDGE TRIKOUROS: Yes, and the FSAR 25 amendment regarding the shield building calculations NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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674 1 will be December?
2 MR. MATTHEWS: I don't believe that is 3 correct, Judge Trikouros. In December, there will be 4 the document explaining the path to that closing, to 5 completing the revised calculational basis. So, it 6 will be sometime after that. I don't have that 7 information.
8 JUDGE TRIKOUROS: Okay. But it will be 9 publicly available when it comes out sometime after 10 December?
11 MR. MATTHEWS: The revised change to the 12 FSAR will be submitted through the process. It will 13 be available for NRC inspection. To the extent it 14 requires a license amendment, that would certainly 15 have a notice provision.
16 MR. LODGE: Right, and I thought we 17 established that there would be a license amendment.
18 MR. MATTHEWS: Not necessarily. FENOC 19 will perform a 50.59 analysis, and if it requires an 20 amendment to the license, they will submit one.
21 MR. LODGE: Oh, sorry, I thought that -- I 22 misunderstood then -- I thought that there would be a 23 license amendment.
24 MR. HARRIS: No. For changes to the FSAR, 25 it does go through a 50.59 process to evaluate the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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675 1 safety significance. And then, to the extent that 2 FENOC determines that it is safety-significant, they 3 would then submit a license. And then, we do review 4 FSARs for changes under 50.59, whether or not they 5 were changed appropriately.
6 JUDGE TRIKOUROS: I understand, but that 7 is being done under 50.59 and, therefore, will not be 8 publicly available until when?
9 MR. MATTHEWS: It is a change to the 10 methodology. So, it will require an assessment under 11 50.59 to determine whether a license amendment is 12 required.
13 If a license amendment is required, it 14 will be available to the public with that 15 notification. Otherwise, it will be subject to the 16 periodic FSAR update, that notice.
17 JUDGE TRIKOUROS: I don't know what it is 18 nowadays. Once a year or whatever it is, once every 19 two years?
20 MR. HARRIS: I believe it is once every 21 refueling cycle.
22 MR. MATTHEWS: Per refueling cycle, two 23 years.
24 MR. HARRIS: Once every two.
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676 1 is, will you, Mr. Lodge, in closing argument, if you 2 would be so kind as to address something that you 3 spoke to earlier. And that is the burden of proof on 4 the Intervenor in bringing forward a threshold in 5 terms of material fact regarding the three aspects of 6 your contention; mainly, the root-cause analysis, the 7 aging management, and the safety issue. And be able 8 to point to us what is the threshold for each of these 9 that we should be looking for in your submittal, 10 irregardless of timeliness and the other procedural 11 issues, but from a substantive issue, not from the 12 point of view of litigation in a trial, but 13 acceptability of the contention. What is the 14 threshold for each of the three issues in your 15 proffered contention?
16 MR. KAMPS: All right. Thank you.
17 JUDGE FROEHLICH: It is now a quarter to 18 3:00. I would propose that we take a 15-minute 19 recess.
20 When we return at three o'clock, we will 21 proceed directly to closing arguments.
22 (Whereupon, the above-entitled matter went 23 off the record at 2:44 p.m. and went back on the 24 record at 3:02 p.m.)
25 JUDGE FROEHLICH: Please be seated.
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677 1 We will proceed directly to closing 2 arguments.
3 Mr. Matthews, for the Applicant?
4 CLOSING ARGUMENT ON BEHALF OF THE APPLICANT 5 MR. MATTHEWS: Thank you, Judge Froehlich.
6 First, FirstEnergy would like to thank the 7 Board for the opportunity to address these very 8 important issues. We would like to acknowledge the 9 obvious effort, the rigor with which the Board has 10 gone through the pleadings and the questions today.
11 I would also like to acknowledge the 12 outstanding efforts of not only my own team here at 13 counsel table, but the representations by the other 14 parties at counsel table.
15 And I would also like to acknowledge the 16 efforts of the deep support teams for all three all 17 parties before the Board that have contributed to the 18 oral argument these past two days.
19 And finally, I, too, would like to thank 20 our host here, Lucas County, for making this beautiful 21 and historic hearing room available to us.
22 With respect to these arguments, I would 23 first like to make reference to the citation the Board 24 made this morning with respect to a filing by 25 Congressman Kucinich. FirstEnergy has not seen that.
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678 1 We are not aware of it. So, to the extent we are 2 afforded an opportunity to review it, we reserve on 3 whether we will respond to that.
4 JUDGE FROEHLICH: Keep in mind that it was 5 filed and will be placed in that file in the nature of 6 written limited-appearance statements.
7 MR. MATTHEWS: Thank you. Thank you, Your 8 Honor.
9 Second, very briefly, with respect to the 10 consultation requirement, we have had some discussion 11 on that already this afternoon. So, I won't belabor 12 it.
13 The point that I would add is that it is 14 not merely 2.323(b), as if that were mere. It has 15 been incorporated into this Board's initial hearing 16 order in Section (g)(1) and, in fact, cited by the 17 Board as a basis for rejection of an earlier 18 contention last year in LBP-11-34, which the Board 19 concluded was hopelessly flawed for that particular 20 reason, that it did not include the certification.
21 Similarly with respect to timeliness, the 22 requirements of 10 CFR 2.309(f)(2) and © are 23 incorporated into the initial scheduling order. They 24 note that it is available by any means.
25 The timing for availability, the timing NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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679 1 for the clock, the 60-day clock in the initial 2 scheduling order, is exactly that. It is the 3 availability of new information, not new documents.
4 So, the fact that existing information is repeated in 5 a new document or additional information that 6 Intervenors might believe is evidence of an existing 7 issue or additional evidence of an existing issue is 8 not a new trigger.
9 Now I would like to turn to the points the 10 Board specifically asked us to address under 309 in 11 our closing arguments. And so, I am referring to 12 2.309(f)(2), and the first is Roman I, that there be 13 a statement of the contention.
14 As it applies here, the Intervenors stated 15 their contention. They never revised it. They never 16 amended it, even after the contention was mooted by 17 the root cause and the AMP. They have argued here 18 today that it is still alive.
19 Second, with respect to the requirement 20 that there be bases, Intervenors have not been clear 21 about their bases for their contention. They have 22 filed a lot of paper, but I think, as the Board noted, 23 more can be less.
24 "Neither the Commission" -- I am quoting 25 now -- "Neither the Commission nor the Board can be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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680 1 faulted for not having searched for a needle in a 2 haystack." That is from the Seabrook proceedings, 3 CLI-89-03.
4 Similarly, the Commission or its Board 5 should not be expected to, quote, "sift unaided" 6 through, quote, "a party's filings to piece together 7 a discussion of the party's argument." That is from 8 Hydro Resources, CLI-01-04.
9 Third, I would like to turn to scope. The 10 Commission very deliberately set a narrow scope for 11 license renewal and, therefore, for license renewal 12 proceedings before the Board. License renewal is 13 limited by design. It presumes the adequacy of the 14 current licensing basis, of the NRC's inspection 15 program and enforcement mechanisms. The only issues 16 within scope are time-limited aging issues. As we 17 have discussed, scope issues plague the contention.
18 The current licensing-basis issues, 19 Intervenors' point, to restart and to restoration of 20 the current licensing basis as somehow in scope, they 21 are clearly outside the scope of license renewal and, 22 therefore, this proceeding.
23 Similarly, they complained about the 24 adequacy of the staff's inspection program with 25 respect to restart. Outside the scope of this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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681 1 proceeding.
2 There were allegations that it is our 3 understanding we are struck from the proceeding with 4 respect to safety culture, but we have heard some 5 argument today. I just want to reiterate that, that 6 they are outside the scope of the proceeding.
7 And similarly, to the extent they are 8 arguing environmental issues, those issues are outside 9 the scope of license renewal because they have been 10 set by rule, the Category 1 issue and the generic 11 determination of the severe accident Category 2 issue.
12 On Roman sub iv, the material issue in 13 dispute, Intervenors have to demonstrate in their 14 proceeding, not conclude as a matter of law for 15 summary disposition standard or prove beyond a 16 reasonable doubt, but they have to present some 17 showing that the issue matters, that it is somehow 18 important to license renewal determination.
19 For example, there are complaints about 20 the rigor of the root cause doesn't in any way suggest 21 that the shield building monitoring AMP is somehow 22 inadequate. There is no tie there, and they haven't 23 pointed to any.
24 Perhaps the most significant is Roman V.
25 Intervenors effectively read Roman V out of the rule.
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682 1 They would refer back to Roman II as just a statement 2 of their basis, where Roman V requires much more.
3 It is not long, but it is important. And 4 for that reason, I would like to read it. That is 5 Roman V: "Provide a concise statement of the alleged 6 facts or expert opinions which support requesters' or 7 petitioners' position on the issue and on which the 8 petitioner intends to rely at hearing, together with 9 references to the specific sources and documents on 10 which the requester or petitioner intends to rely to 11 support its position on the issue."
12 This issue is particularly egregious.
13 Intervenors, in fact, have provided none that supports 14 the purported contentions or varying bases for the 15 alleged contention.
16 They cite to RAIs or changes in documents 17 that I have identified through FOIA. Those reports 18 speak for themselves. FENOC's witnesses and the 19 staff's witnesses are not represented, their positions 20 are not represented by the selected out-of-context 21 quotations Intervenors have identified in their 22 pleadings.
23 The case law is clear that Intervenors 24 can't simply rely on RAIs. For example, in 25 Monticello, CLI-06-06, the Commission said, "We have NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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683 1 held repeatedly that mere issuance of a staff RAI does 2 not establish grounds for litigable contention."
3 I would also cite to the more recent 4 Fasteel case, or similarly, not more recent, three 5 years older, the Fasteel case. The Commission said 6 that, "A contention will be ruled inadmissible if the 7 petitioner has offered no tangible information, no 8 experts, no substantive affidavits, but instead only 9 bare assertions and speculation." It is particularly 10 on point in this case. It is Fasteel, CLI-03-12 at 11 58.
12 And I next turn to Subsection 6, the 13 genuine issue of law or fact. The regulation requires 14 that the Intervenors raise a genuine issue of 15 material-of-law fact with some portion of the 16 application. So, the application itself or the 17 environmental report. What we have seen here are no 18 citations to the Structures AMP, no citation to some 19 deficiency in the shield building supplemental AMP, 20 and no citations to any section of the environmental 21 report that is somehow deficient.
22 It is also relevant, the burden upon whom 23 2.309(f)(2) applies. The burden to make the case is 24 on the Intervenors. It is not on the Applicants to 25 disprove or the Board to formulate the contention.
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684 1 The Commission said in Pilgrim, "We have 2 long required contention claims to be set forth" --
3 quote -- "`with particularity,' stressing that it 4 should not be necessary to speculate about what a 5 pleading is supposed to mean. Our proceedings would 6 prove unmanageable and unfair to other parties."
7 CLI-12-01.
8 Intervenors don't like the fact that they 9 have to bear that burden. They acknowledge that. But 10 that is a challenge to Part 2. That is not 11 appropriate to this proceeding. That is a subject for 12 a rulemaking petition.
13 Intervenors today acknowledged that they 14 are asking the Board to shoulder their burden, to do 15 just that, to reformulate their contention. They 16 point out the Board's effort with respect to 17 Contention 1, to reformulate their contention into 18 some admissible pleading.
19 However, even if the Board were so 20 inclined in this case, they have not provided the raw 21 materials which the Board could use to do that. As I 22 just went through, they have demonstrated no basis, no 23 material issue, and no support.
24 Further, they have held to the mooted 25 contention statement without any suggestion as to how NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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685 1 it survives the submittal of the aging monitoring 2 program. I think Mr. Lodge accurately stated the 3 contention remains as an allegation; it is simply 4 that. That is not a sufficient basis for a contention 5 before the Board.
6 It is a false issue to claim that there is 7 a standard, that the standards are creeping, or that 8 the Intervenors are being held to an unrealistic 9 standard. But the Board need not delve into whether 10 the standard for contention admissibility is close to 11 summary disposition. No one is arguing that. FENOC 12 certainly isn't arguing that the summary disposition 13 standard applies at this stage of the proceeding. But 14 this isn't the case on which Intervenors should be 15 looking to establish what the standard is because they 16 haven't provided any basis for the Board to point to 17 as a basis for the contention.
18 So, with respect to Judge Kastenberg's 19 question before we went to the break on the three 20 issues identified in the contention: that it is of 21 unknown origin, Intervenors haven't pointed to 22 anything to suggest that the cause of the cracking is 23 unknown. FENOC has established the cause of the 24 cracking. They have provided no basis to challenge 25 that conclusion of the cause. But, even if so, there NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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686 1 is a question of materiality of the cause of the 2 cracking because there is the shield building AMP.
3 Regardless of the cause of the cracking, the shield 4 building AMP is adequate to address the potential 5 effects of aging on that existing crack, whatever its 6 origin.
7 They have failed to establish that it is 8 an aging feature of the plant. There has been no 9 basis. If they don't like the root cause, they 10 haven't come in with some other basis to say there is 11 some aging effect; there is some basis to conclude it.
12 There is no group of experts or affidavits of civil 13 engineers saying, yes, this is a time-dependent 14 phenomena, nothing along those lines.
15 And the point that the plant is unsafe to 16 operate is beyond the scope. It is a current 17 licensing-basis issue, not for the future. And they 18 certainly haven't suggested that somehow the AMP would 19 be inadequate, that the plant would be unable to 20 operate during a period of extended operations.
21 So, I would return to my original 22 questions at the opening yesterday afternoon. Those 23 questions for the Board, the ultimate questions I 24 think for this proceeding are: have the Intervenors 25 identified any specific material issue in dispute in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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687 1 direct contravention of either the license renewal 2 application or the environmental report? And second, 3 if the answer to any part of that first question is 4 yes, have they provided the requisite support as 5 defined by the Commission?
6 And based on the pleadings and the 7 arguments we have heard today and yesterday, the 8 answer to both of those questions is an unambiguous, 9 resounding no.
10 FENOC would like to thank the Board for 11 this opportunity to address this issue.
12 JUDGE FROEHLICH: Thank you, Mr. Matthews.
13 Commission staff?
14 CLOSING ARGUMENT ON BEHALF OF THE COMMISSION 15 MS. KANATAS: Thank you, Your Honors.
16 It is clear that Intervenors have many 17 concerns about the shield building cracking and the 18 investigation into that cracking. But what is not 19 clear is how Intervenors' contention as supplemented 20 is related to this limited license renewal proceeding, 21 how it challenges the license renewal application, or 22 impacts any of the environmental or safety findings 23 the staff must make.
24 For proposed Contention 5 to be admitted 25 into this proceeding, the Intervenors have the burden NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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688 1 to meet the Commission's requirements for new and 2 amended contentions filed after the initial filing 3 deadline. This means that the Intervenors must meet 4 two standards. First, they have to show that the 5 contention was timely filed or met the Commission's 6 non-timely-filing standards. Second, they have to 7 meet our strict admissibility standards under 8 2.309(f)(1).
9 As the Commission has recently noted in 10 this proceeding, failure to comply with any of these 11 requirements precludes admission of a contention.
12 This strict pleading standard is not designed to 13 silence concerns or keep interested parties out from 14 participating. Instead, the Commission's contention 15 admissibility standards are designed to help assure 16 that adjudicatory hearings will be meaningful; that 17 is, focused on matters that have genuine, underlying 18 factual or legal support, and that fall within the 19 scope of a renewal proceeding, raising a material 20 dispute with the application.
21 This process demands that Intervenors 22 carefully review the license renewal application and 23 raise their distinct challenges at the outset, 24 avoiding piecemeal supplemental contentions unless 25 they could not have been raised earlier.
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689 1 As the Applicant noted, it is the 2 Intervenors' burden, not the Board's burden, not the 3 parties' burden to find the admissible claim or claims 4 and somehow form them for the Intervenors. Again, the 5 burden here is twofold: show that the filing was 6 timely, based on new and materially-different 7 information than initially available within the 60 8 days provided in the ISO and meet the contention 9 admissibility standards.
10 While there are questions about whether or 11 not the filings were timely, there is no question that 12 the proposed contention as supplemented is 13 inadmissible. The proposed contention raised three 14 points. First, that the root cause is unknown.
15 Second, that there were possible aging effects not 16 discussed in the license renewal application. And 17 third, that there were safety concerns with the 18 current operation of the plant, given those cracks.
19 The staff recognized that at the time the 20 contention was filed the second claim, that there was 21 an omission in the license renewal application at the 22 time the contention was filed, was an admissible 23 safety contention. However, the staff objected to the 24 remaining claims, both stated in the text of the 25 contention and the bases in the motion, as they were NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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690 1 unsupported, immaterial, or raised issues outside the 2 scope of this proceeding, including claims that the 3 restart and operation of the plant are unsafe, given 4 the cracking; that the staff safety review of the 5 shield building cracking is inadequate; that there are 6 safety culture concerns, and challenges to generic 7 environmental findings codified in the Commission's 8 regulations.
9 Intervenors also made several unsupported 10 or immaterial environmental claims, that FENOC's SAMA 11 analysis was inadequate, given the recently-discovered 12 crack, and that the staff's Draft Supplemental 13 Environmental Impact Statement must consider the 14 cracking.
15 Therefore, the only admissible claim in 16 their January 10th motion was that the license renewal 17 application was lacking a discussion of how the aging 18 management program will account for the shield 19 building cracking during the period of extended 20 operation.
21 When FENOC submitted its April 5th shield 22 building monitoring program, that one admissible 23 portion of the contention became moot and had to be 24 modified or dismissed, which the Intervenors 25 recognized as they filed and were granted a Motion to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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691 1 Vacate the Oral Argument and did submit an amended 2 pleading addressing the shield building contention, 3 among other things.
4 Their multiple supplements, however, did 5 not provide adequate supported challenges to the 6 shield building AMP submitted on April 5th. Instead, 7 they focused on rehashing their out-of-scope, 8 immaterial, and unsupported arguments. This is not 9 enough to meet the new and materially-different 10 standard.
11 And three of the Intervenors' five 12 Supplements did not even address the 2.309(f)(1) 13 standards, much less indicate how any of their claims 14 met this standard. The Fourth and Fifth Supplements, 15 while addressing the standards, only solidified that 16 Intervenors' challenges are current operating 17 concerns, not within the scope of the proceeding.
18 As I pointed to last night and as I will 19 point to again, the Fifth Supplement on page 91 20 through 95 goes through their basis, which raises 21 issues about the root cause being inadequate and the 22 restart. And within their scope, they indicate their 23 challenges to the plan to reestablish the design 24 basis, which is a current operating issue.
25 And they also challenge the current NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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692 1 operation of the plant. In their Statement of Facts, 2 they point to these preliminary emails from staff for 3 their concern about this 90-percent failure, which is, 4 again, is not fast concern and not an issue, not fast 5 concern; it was a preliminary concern, but it has been 6 addressed and was addressed before restart was 7 authorized.
8 And again, their genuine is, they say in 9 their Fifth Supplement, the physical adequacy of the 10 shield building. As Judge Trikouros noted earlier 11 today, those are valid current operating issues, and 12 there are mechanisms for the Intervenors to raise 13 those concerns outside of this license renewal 14 proceeding. But this license renewal proceeding is 15 not the place to hear those claims and does not meet 16 the 203(f)(1) standards.
17 And Intervenors have yet to raise a 18 challenge to the August 16th shield building 19 monitoring AMP which was served on them on August 17th 20 or offer any other admissible challenge to the 21 application. Therefore, there is no genuine dispute 22 with the application, and the contentions, as amended 23 or supplemented, must be dismissed.
24 Thank you.
25 JUDGE FROEHLICH: Thank you.
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693 1 And the last word, Intervenors.
2 CLOSING ARGUMENT ON BEHALF OF THE INTERVENORS 3 MR. LODGE: Thank you.
4 I would echo Mr. Matthews' and NRC 5 Counsel's thanks to the Board for coming to Toledo, 6 for displaying its usual high degree of preparedness, 7 and we would like to thank the parties, also, for 8 their respective presentations and arguments.
9 First, the raw material. To answer, I 10 believe, Judge Froehlich's questions about evidence of 11 cracking, what I am going to do is chronologically go 12 through our filings and highlight what I believe, what 13 the Intervenors believe sustains the notion that 14 cracking is pervasive, widespread, and perhaps poorly-15 documented.
16 And maybe as a disclaimer I should say 17 that, just because I don't specifically mention it in 18 closing argument, if the Board were to subsequently 19 read and notice things I didn't mention, that is 20 simply my oversight, not my intention to leave them 21 out.
22 With respect to the original motion, as I 23 indicated a while ago, the Youngstown earthquake of 24 December 31st, 2011, is mentioned at paragraph 54 on 25 page 57 of that motion. It is a 4.0 earthquake. It NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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694 1 has been subsequently established that it may well be 2 connected to hydraulic-fracturing-related injection 3 wells, which are going to become an increase 4 phenomenon throughout many parts of the East and near 5 other nuclear plants, possibly Davis-Besse.
6 But, in any event, there has been a recent 7 earthquake that comes perilously close to the seismic 8 standards that were originally implemented in the 9 construction of Davis-Besse. That was a Davis-Besse 10 that did not have cracking.
11 Turning to the actual cracking 12 allegations, as discussed yesterday, the January 5th, 13 2012, Camp Perry meeting where Barry Allen and NRC --
14 I guess Mr. Allen at least -- did mention that there 15 was laminar cracking extending for at least distances 16 of 225 feet up and down the shield building, is one 17 example, evidence if you will, of cracking.
18 Also, in our initial motion, we do mention 19 the December 7th release or posting at his 20 congressional website by Congressman Kucinich of the 21 fact that the NRC had told him on December 6, 2011, 22 that there was cracking in the upper 20 feet of the 23 shield building, which I will return to momentarily.
24 That is all heeded within the January 10th motion.
25 Moving to the filing, directly two NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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695 1 filings, in February, of some concern, one was the 2 February 13th Intervenors' Combined Reply in Support 3 of Motion for Admissible of Contention 5, which has 4 attached to it a report that is also attached to the 5 February 27th filing, which is the NRC's letter report 6 of an integrated -- pardon me -- inspection that was 7 conducted in October. The letter is dated -- pardon 8 me -- it is conducted, completed, in December of 2011, 9 dated January 31st, 2012. At page 48 of that 10 document, there is specific mention of a couple of 11 things.
12 That, on October 26th, 2011, during 13 investigation, the licensee identified additional 14 areas of concern via IR testing and semicircular zones 15 above the main steamline penetrations through the 16 shield building.
17 That, further, it states, quote, "This 18 condition appeared to be different from the condition 19 documented in CR-2011-03-346, which has been primarily 20 concerned with cracking at the shield building opening 21 and similar areas around the building circumference.
22 These new areas of concern were not similar to those 23 previously identified and appear to be associated with 24 the main steamline penetrations." Unquote.
25 Somewhat later in the next paragraph, it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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696 1 states, "On October 31st, 2011, the licensee 2 identified additional indications of concrete cracking 3 during IR testing towards the top of the shield 4 building weld, approximately between the 780-foot and 5 800-foot elevations." That is the 20-foot stretch 6 that we have been talking about.
7 Quote: "This area of indications was yet 8 another one different from the laminar cracking 9 initially identified pursuant to the RRBCH opening."
10 As I indicate, that also appears, that 11 same report is appended to the February 27th 12 Supplemental Motion, if you will, Motion to Amend.
13 In the June 4th filing, we bring to the 14 attention of the Board the AMP, the April 5th Aging 15 Management Plan, which, among other things, mentions 16 the August 15th, 1976 shield dome parapet area where 17 there as some type of cracking, peeling, chipping --
18 pardon me -- peeling and chipping of paint, and that 19 there appears to have been water damage.
20 We also commented in that filing about the 21 root-cause and revised root-cause analyses that 22 mentioned the, quote, at page 7, quote, "the tighter 23 spacing" -- this is from the root-cause analysis --
24 "tighter spacing of the outer face of structural 25 reinforcing steel, such as in the top 20 feet of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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697 1 shield building and adjacent to openings at blockouts 2 can facilitate propagation of laminar cracking as 3 evident at the main steamline penetration blockouts.
4 Rebar appears to have been installed in a dense 5 fashion that, in effect, invited, given the factors of 6 moisture, invited some structural cracking damage."
7 We believe, and believed at that point in 8 filing, that the AMP was inadequate because, again, 9 there are admissions of cracking that seem to be taken 10 note of, but not investigated further, cracking that 11 extends considerable distances.
12 On page 9 of that June 4th filing, we 13 point out there was no examination of cracks during 14 the 2011-2012 investigation if they were less than 15 1/16th-inch in width. Earlier cracks identified in 16 the Maintenance Rule structure evaluations from June 17 1999 and November 2005 were less than 1/16th of an 18 inch. Hence, those cracks were deemed acceptable.
19 The RAI AMP, the April 5th AMP, states 20 that the widest crack was 13-thousandths of an inch.
21 The widest shield building exterior surface concrete 22 crack identified in the root-cause analysis, by 23 contrast, was measured at 25-thousandths of an inch.
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698 1 building exterior.
2 In our July 16th filing, which would be 3 the Third Motion to Amend, at page 7, we discuss the 4 additional passage in the, I believe May 16th revised 5 root-cause analysis, wherein FirstEnergy admits the 6 cracked and broken architectural flute shoulder corner 7 on the shield building dome parapet discovered in 8 1976. This was new information, new information after 9 -- what? -- 38 years, 36 years, that was provided to 10 the public only in the wake of this growing 11 controversy.
12 FirstEnergy also commits for the first 13 time in that revised root-cause analysis that it will 14 inspect the low-grade shield building walls that may 15 have had a membrane installed, but which had not, up 16 to that point in time, been addressed as to cracking, 17 notwithstanding the cracking that had shown up in 18 areas that were probably dry a much greater time than 19 they were wet or in contact with moisture, unlike the 20 below-grade portions of the shield building.
21 In the revised root-cause analysis, we 22 point out in the same filing that the root -- pardon 23 me -- the NRC pointed out, and we echoed it, the Root-24 Cause Report did not address microcracking that was 25 identified in the Performance Improvement NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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699 1 International analysis. That the Root-Cause Report 2 actually contradicts this evidence was the accusation 3 and states that microcracking was not identified.
4 It turns out that there were two 5 laboratories. The CTL Group examination did identify 6 multiple microcracks. The problem with this 7 phenomenon is that the cracks may not be visible to 8 the naked eye even if they are on the surface of the 9 shield building, and they may not be on the surface, 10 but, nonetheless, clearly present upon closer 11 examination, which is why we contend that a few -- and 12 I am saying it in a relative sense -- but a few dozen, 13 or even a few hundred, core bores, unless they somehow 14 comprise a comprehensive addressing of the problem, 15 are not adequate for any type of aging management 16 administration.
17 The NRC staff also found with respect to 18 the revised root-cause analysis that the report did 19 not discuss radial cracking. Radial cracks run 20 perpendicular to the cracks identified by FENOC in the 21 February 28th root-cause analysis. They are the 22 cracking next to and parallel to the outer rebar map.
23 So, the revised root-cause analysis 24 identifies an entirely different and, for that matter, 25 new informationally-speaking different cracking mode, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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700 1 which does not appear to be explained by the Blizzard 2 of '78.
3 There is also no disclosure in the revised 4 root-cause analysis of the results of additional tests 5 performed on five core bores. I think it was at the 6 time of these core bores, we noted in some of the 7 revised root-cause analysis that the weather was bad, 8 and so some of the core-bore drilling did not occur.
9 There is no indication that it ever was undertaken.
10 So, there is even evidence that the utility didn't 11 fulfill its own commitments to core boring and 12 analysis.
13 Finally, in the August 16th Fifth Motion 14 to Amend appears extensive discussions and references 15 to the Hernandez and Sheikh memos of findings, which, 16 interestingly, even as preliminary discussion items, 17 seem to pull together some of these diverse concepts.
18 Very striking is Pete Hernandez' comments 19 written within a month after the cracks were first 20 announced, in other words, early November of 2011. He 21 discusses that, quote, "From what I understood, the 22 crack is pervasive along the entire surface, spidering 23 in all directions, similar to a pane of tempered glass 24 breaking." Tempered glass doesn't easily shatter, and 25 a sharp blow creates whole manner of spider cracking, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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701 1 I guess would be his term.
2 The core bores have shown the cracks are 3 different depths. So, this doesn't seem to capture 4 the current situation. He says that, throughout the 5 calculations, the word "crack," singular, is used.
6 They, meaning FENOC, also mentioned that the extent of 7 the crack is 10 feet to 12 feet. This seems to 8 greatly downplay the issue. This is certainly 9 FirstEnergy's somewhat later information about a 225-10 foot cracking phenomenon gives a lie to that 11 particular preliminary point.
12 And, of course, there is Pete Hernandez' 13 alarmed statement, roughly the same time, November 14 2011. I think the great quote, "I think the greater 15 concern is will the shield building stay standing and 16 not whether or not the decorative concrete will fall 17 off. Because the licensee has not performed core 18 bores to see if there is cracking in the credited 19 concrete, do they have a basis to say that the 20 structural concrete will maintain a seismic 2-1, 21 meaning in reverse order, moderate to mild earthquake 22 condition? In other words, will the shield building 23 be able to withstand even a mild earthquake?"
24 He also states in the same correspondence, 25 quote, "Because cracks have been found through NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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702 1 multiple core bores, shouldn't the appropriate 2 calculations account for the combined effects of 3 cracks in all the shoulders, and not just one, by 4 opening, and not just individually?"
5 There, of course, have been other 6 references, but those are the significant and 7 disturbing statements by NRC staff, which we believe, 8 continue to believe, have not been resolved in any 9 factual way.
10 Moving to the law, we believe this is a 11 Category 2 matter, referring to the categories as 12 established in the 1996 GEIS. We believe that we have 13 established in our very first filing on page 11, and 14 I believe paragraph 3, there is reference to -- we are 15 talking about cracking and talking about cracking in 16 connection with, as articulated in the environmental 17 report, that there will be a 2014 new opening 18 established in the building, in the shield building, 19 for purposes of steam generator replacement.
20 We also, of course, maintain that there is 21 a safety concern.
22 One moment. I'm sorry.
23 (Pause.)
24 I would like to address the three things 25 that Judge Kastenberg asked that we address. And our NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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703 1 understanding that they are root cause, aging 2 management, and safety concerns.
3 Working backwards through them, let's go 4 back to the chasm that I mentioned an hour or so ago.
5 There is 180 degrees difference in point of view, 6 apparently, in the evidence. We believe there is a 7 material issue of fact that has been demonstrated 8 between the ER, which does not account in any way for 9 shield building damage, and the prospect for the 2014 10 opening, which FirstEnergy, not the Intervenors, chose 11 to mention and define and give some detail to in the 12 environmental report.
13 But we believe that, if one version is 14 believed, and there is essentially a compromise of up 15 to 90 percent of the concrete layering of the shield 16 building, that there are almost blatantly-obvious 17 safety considerations. The shield building, if it 18 were to sustain that kind of damage from an external 19 event -- it doesn't just have to be an earthquake --
20 but if that sort of damage befell the building, it is 21 possible that the building would no longer function in 22 its sweeping and filtering function. It would no 23 longer serve in any way to provide any kind of barrier 24 for radiation. Realizing that is not the express and 25 primary purpose of the building, it is still NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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704 1 considered -- the containment of radiation factors in 2 somehow because there is a deliberate and 3 understandable engineering policy of maintaining a 4 slightly-negative atmosphere within the building in 5 order to inhibit any type of flow of radioactive 6 materials out of the building in any way.
7 There were more than 20 root causes 8 articulated in the Performance International's revised 9 root-cause analysis commentary, and the suggestion 10 that some of those root-cause factors could be acting 11 in combination is not addressed. What you are posed 12 with is a February 28th root-cause analysis, the 13 conclusion of which was maintained in the revised May 14 16th version, but it is the only event that could 15 possibly have caused these problems, is the blizzard 16 of '78.
17 And it ignores storms before and storms 18 after. It ignores the period of time of a couple of 19 years when the shield building did not have a roof on 20 it pre-1978. It ignores the four-year eight-month 21 period when there was an opening pre-1978 left in the 22 building deliberately in order to install the 23 generating equip9ment.
24 So, there is not any dynamic discussion of 25 root-cause interplay, synergy, whatever word would be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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705 1 appropriate. So, we believe it is a NEPA issue. We 2 further believe that, while it is an aging management 3 issue, I still fail to grasp how it is not an aging 4 management issue. FirstEnergy appears to argue both 5 ways, that it really isn't, but just to sort of comply 6 with the NRC, we are kind of calling it -- wink, wink 7 -- it is.
8 And the problem with that is that it is an 9 aging management issue because, as the plant grows 10 older and as it approaches that 20-year license 11 extension date, it is going to be older and more 12 deteriorated. The basic problem here is the 13 infiltration of moisture that has occurred for four 14 decades from some cause or causes, and probably 15 causes; that it has certainly caused carbonation and 16 cracking. It may have caused corrosion of rebar and 17 the bulging that further induces more cracking.
18 And we don't know definitively a few years 19 before this proposed 20-year extension period is to 20 begin what the real cause is. The real cause is 21 highly relevant to determining what management there 22 would have to be.
23 The management plan, I would hasten to 24 point out, could include replacing the shield 25 building. The management plan could include replacing NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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706 1 portions, massive portions of the concrete of the 2 shield building or rebar. It isn't just drill a few 3 holes, send stuff out to a few labs, and wait for 4 somebody to FOIA the result, which seems to be the 5 management plan today.
6 So, we believe we have established genuine 7 dispute with the Applicant on material issues of fact.
8 The application is predicated on statements that do 9 not appear there. It is predicated on the assumption 10 of structural integrity. This, of course, is all 11 stuff that was discovered more than a year after the 12 application.
13 And you have admissions that there are 14 likely to be changes to the Safety Evaluation Report.
15 You have admissions that there is some controversy, 16 some difference of opinion and change about what to do 17 so far as aging management. This is an issue which 18 could conceivably pervade the remaining 24.5 years of 19 potential operation at the Davis-Besse plant. This is 20 a most unusual contention filing in that it has 21 involved so many amendments and supplementations to 22 the factual basis.
23 As we have established, we have timely 24 filed. We have filed in the most expedient way we 25 can. We have perhaps inarticulately stated some NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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707 1 portions of the information that we believe is 2 pertinent to allowing the contention to go forward as 3 a trial matter. But, as I have pointed out a couple 4 of times, we believe that there is a standard, which 5 I will address, for contention admissibility that has 6 been lost in a great deal of discussion.
7 To obtain admission of this contention, 8 the Intervenors are not required to submit admissible 9 evidence to support their contention, even though we 10 believe we have. We are obliged to provide, quote, "a 11 brief explanation of the basis," unquote, and to 12 provide putative evidence in the form of, quote, "a 13 concise statement of alleged facts or expert opinions 14 which support our positions". That is straight out of 15 2.309.
16 By NRC determination, we only have the 17 burden of offering minimal factual legal foundation.
18 That is Duke Energy, Oconee case at 49 NRC 328. It is 19 a 1999 determination.
20 But the Atomic Energy Act doesn't require 21 us to prove our case, support our claims in formal 22 evidentiary form, or provide support which is as 23 strong as that necessary to withstand summary 24 judgments, summary dispositions. Pardon me.
25 We have only to make a minimal showing NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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708 1 that material facts are in dispute and demonstrate 2 that an inquiry in-depth is appropriate. We believe 3 that that is reinforced by the "hard-look" requirement 4 of NEPA. If a material issue has been articulated, 5 the contention has to be admitted for hearing without 6 further determination of the matter at that 7 admissibility stage.
8 And we think that the Licensing Board 9 understands those principles, understands them despite 10 the weighty evidentiary arguments that are being 11 proffered in opposition to admissibility of our 12 contention.
13 It has been suggested that we address 14 2.309 perhaps a little bit better. We have 15 articulated a contention and, of course, indicated 16 that we believe that its original wording remains 17 valid as a contention. I can't say we have provided 18 a brief explanation of the basis for the contention, 19 but I think we have provided some basis.
20 We have demonstrated, we believe, that it 21 is within the scope of the proceeding or under the 22 Atomic Energy Act; that it is material to findings the 23 NRC must make to support the action involved in the 24 proceeding, that being is the shield building going to 25 be capable of fulfilling its intended functions during NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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709 1 the extended 20-year period.
2 In Subsection 5 of 2.309(f)(1), "Provide 3 a concise statement of the alleged facts or expert 4 opinions which support our position." Again, 5 conciseness may be something of a problem. But if 6 this issue is not admitted for hearing based on some 7 perceived lack of conciseness, that would be a very 8 unfortunate determination because somewhere in the 9 extensive filings, and particularly toward the end, 10 pages 92 to 97 of the Fifth Motion, we discuss the 11 309(f) factors. But, certainly, we have established 12 some degree of expert opinion from the NRC staff that 13 suggests a serious material issue of fact.
14 Finally, we believe we have provided 15 sufficient information to show that genuine dispute 16 exists and specifically we have done so by providing 17 references to a great many documents that would be 18 otherwise admissible at hearing as essentially self-19 authenticating evidence.
20 For all of these reasons, both the legal 21 ones and the factual ones, we respectfully request 22 that the Board admit for hearing on the merits the 23 Contention 5.
24 Thank you.
25 JUDGE FROEHLICH: Thank you.
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710 1 On behalf of the Board assigned to this 2 relicensing case, I want to thank the parties for 3 their careful preparation and the professionalism they 4 have shown during this oral argument.
5 The answers have been helpful; the 6 responses will be crucial in allowing us to prepare 7 our decision in this case. The oral argument has 8 helped the Board answer questions and clarify our 9 concerns with the pleadings, which will better prepare 10 us to draft our order on the Motion for Summary 11 Disposition of Contention 4 and the Motion to Admit 12 New Contention 5.
13 We will review the transcript of this 14 argument and review the pleadings in-depth before we 15 begin the drafting of our decision, and we will begin 16 our decision drafting as soon as we return to 17 Washington.
18 We are pleased to convene this oral 19 argument in the vicinity of the reactor and to hear 20 the concerns of the local Intervenors. We appreciate 21 the hospitality of the Lucas County Court officials in 22 making this courtroom available to us. Special thanks 23 to Judge Zmuda and the staff of the Lucas County Court 24 of Common Pleas.
25 I also want to thank Don Colby, the Court NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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711 1 Administrator, who helped us with all manner of 2 details in preparation, and David Rodgers, the 3 Director of Court Deputies, who provided security and 4 attention to this case.
5 And finally, I want to thank our court 6 reporter, Mr. Cordes, for making a true and faithful 7 transcript of our proceedings today.
8 I thank the parties for their attention, 9 for their help, for their argument. I wish you all 10 safe travel home. Thank you very much.
11 MR. HARRIS: Your Honor, one other 12 administrative thing?
13 JUDGE FROEHLICH: Yes.
14 MR. HARRIS: In terms of the proposed 15 transcript corrections, do you want to provide any 16 guidance to the parties on when you would like that?
17 JUDGE FROEHLICH: I believe we will have 18 written transcripts, I don't know if it was three days 19 or seven days.
20 THE REPORTER: It is three business days.
21 JUDGE FROEHLICH: It is three business 22 days? So, we will have three business days, and then 23 20 days after that proposed transcript corrections can 24 be submitted. The Board will issue an order accepting 25 those that are proposed.
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712 1 It would be helpful if there was 2 concurrence among the parties as to proposed 3 transcript corrections in the spirit of 2.323, as well 4 as making it easy to, hopefully, easier to reach some 5 consensus about what was said during the proceedings.
6 MR. HARRIS: Thank you, Your Honor.
7 JUDGE FROEHLICH: So, with that, we will 8 do it 20 days after the transcript becomes available.
9 Thank you all.
10 We stand adjourned.
11 (Whereupon, at 3:57 p.m., the proceedings 12 in the above-entitled matter were adjourned.)
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CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission Proceeding: Davis Besse Nuclear Power Station Docket Number: 50-346-LR ASLBP Number: 11-907-01-LR-BD01 Location: Toledo, Ohio were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken and thereafter reduced to typewriting under my direction and that said transcript is a true and accurate record of the proceedings.
Official Reporter Neal R. Gross & Co., Inc.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com