ML13085A109
| ML13085A109 | |
| Person / Time | |
|---|---|
| Site: | San Onofre  |
| Issue date: | 03/26/2013 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| RAS 24290, 50-361-CAL, 50-362-CAL, ASLBP 13-924-01-CAL-BD01, NRC-4062 | |
| Download: ML13085A109 (158) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Southern California Edison Co.
Docket Number:
50-361-CAL and 50-362-CAL ASLBP Number:
13-924-01-CAL-BD01 Location:
Rockville, Maryland Date:
Friday, March 22, 2013 Work Order No.:
NRC-4062 Pages 1-156 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433
1 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 UNITED STATES OF AMERICA 1
U.S. NUCLEAR REGULATORY COMMISSION 2
+ + + + +
3 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 4
+ + + + +
5 ORAL ARGUMENT 6
7 In the Matter of: : Docket Nos. 50-361-CAL 8
SOUTHERN CALIFORNIA : 50-362-CAL 9
EDISON CO. : ASLBP No. 13-924-01-CAL-BD01 10 (San Onofre Nuclear :
11 Generating Station, :
12 Units 2 and 3) :
13 14 15 16 Friday, 17 March 22, 2013 18 Rockville, Maryland 19 20 21 BEFORE:
22 E. ROY HAWKENS, Chairman 23 ANTHONY J. BARATTA, Administrative Judge 24 GARY S. ARNOLD, Administrative Judge 25
2 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 APPEARANCES:
1 On Behalf of the Petitioner Friends of the 2
Earth:
3 RICHARD E. AYRES, ESQ.
4 JESSICA L. OLSON, ESQ.
5 KRISTIN HINES GLADD, ESQ.
6 of:
Ayres Law Group 7
1707 L Street, N.W.
8 Suite 850 9
Washington, D.C. 20036 10 (202) 452-9222 11 ayresr@ayreslawgroup.com 12 olsonj@ayreslawgroup.com 13 gladdk@ayreslawgroup.com 14 15 On Behalf of Southern California Edison Company:
16 STEPHEN J. BURDICK, ESQ.
17 STEVEN P. FRANTZ, ESQ.
18 of:
Morgan, Lewis & Bockius LLP 19 1111 Pennsylvania Avenue, N.W.
20 Washington, D.C. 20004 21 (202) 739-5059 (Burdick) 22 (202) 739-5460 (Frantz) 23 sburdick@morganlewis.com 24 sfrantz@morganlewis.com 25
3 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 On Behalf of the U.S. Nuclear Regulatory 1
Commission:
2 DAVID E. ROTH, ESQ.
3 MAXWELL SMITH, ESQ.
4 CATHERINE KANATAS, ESQ.
5 U.S. Nuclear Regulatory Commission 6
Office of General Counsel 7
Mail Stop - O-15 D21 8
Washington, D.C. 20555 9
(301) 415-2749 (Roth) 10 (301) 415-1246 (Smith) 11 (301) 415-2321 (Kanatas) 12 david.roth@nrc.gov 13 maxwell.smith@nrc.gov 14 catherine.kanatas@nrc.gov 15 16 17 18 19 20 21 22 23 24 25
4 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 T A B L E O F C O N T E N T S 1
Page 2
Opening Instructions - Judge Hawkens 5
3 Introduction of Parties.............
8 4
Preliminary Matter - Mr. Frantz.........
9 5
Petitioner Opening Statement
.......... 13 6
Petitioner Argument............... 15 7
SCE Opening Statement
............. 50 8
SCE Argument
.................. 54 9
Staff Opening Statement............
103 10 Staff Argument 108 11 Petitioner Rebuttal..............
153 12 13 14 15 16 17 18 19 20 21 22 23 24 25
5 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 P R O C E E D I N G S 1
10:00 a.m.
2 JUDGE HAWKENS: On the record. Good 3
morning. My name is Roy Hawkens. I'm joined on this 4
Licensing Board on my right by Dr. Anthony Baratta and 5
on my left Dr. Gary Arnold.
6 This morning we're here to hear oral 7
argument in the Southern California Edison 8
Confirmatory Action Letter case. This case had its 9
origin in June 2012 when Petitioner, Friends of the 10 Earth, filed a hearing request with the Commission in 11 relation to the restart of Units 2 and 3 at the San 12 Onofre Nuclear Generating Station in Southern 13 California.
14 As relevant here, Petitioner argued that 15 the Confirmatory Action Letter issued to SCE including 16 the process for resolving the issues raised in the 17 letter constitutes a de facto license amendment 18 processing within the hearing provision of Section 19 189(a) of the Atomic Energy Act. And therefore an 20 adjudicatory hearing is required.
21 The Commission referred this portion of 22 Petitioner's hearing request to the Atomic Safety and 23 Licensing Board Panel for resolution. The Commission 24 directed a Board to consider (1) whether the 25
6 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 Confirmatory Action Letter constitutes a de facto 1
license amendment that would be subject to a hearing 2
opportunity under Section 189(a) of the Atomic Energy 3
Act; and, if so, (2) whether the petition meets the 4
standing and contention admissibility requirements of 5
Commission regulations.
6 This Board has received extensive briefing 7
from the parties on these two issues. We've also 8
received amicus briefs from the Natural Resources 9
Defense Council and from the Nuclear Energy Institute.
10 And I'd like to take this opportunity to commend the 11 parties for the quality of briefing they have provided 12 this Licensing Board on the issues.
13 This morning we'll hear oral argument on 14 the two issues referred by the Commission. We'll 15 first hear from counsel for Petitioner and then 16 counsel for SCE and then counsel for the NRC Staff.
17 The principal purpose of the argument is 18 to enable this Board to fully understand each party's 19 position. And once the Board concludes and 20 understands the party's position, it will hear from 21 the next party with the understanding that we may 22 subsequently return to a party with a follow-up 23 question.
24 In order setting this argument, we 25
7 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 instructed counsel should be prepared to answer 1
questions on any matter raised in the briefs. But in 2
particular they should expect questions on three broad 3
areas of concern that we identified that in that 4
order. And I'll identify those issues later on in the 5
proceeding.
6 Each party may, if wishes, make an opening 7
statement of no more than five minutes at the outset 8
of its presentation. And at the end of the 9
presentations, we'll give Petitioner an opportunity 10 for rebuttal of no more than five minutes.
11 It's our goal to finish by lunch, but if 12 we don't we'll recess for lunch break, resume in the 13 afternoon and continue until we finish.
14 Initially when we scheduled argument, this 15 Board raised the possibility of going into a closed 16 session to discuss information that's been designated 17 as proprietary. Yesterday, however, we informed the 18 parties in an email that our current intention is not 19 ask questions that will require a discussion of 20 proprietary information. So the Licensing Board does 21 not anticipate going into a closed session. However, 22 if a party believes that the discussion of proprietary 23 information is essential, please bring it to our 24 attention and we'll determine at that time whether to 25
8 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 go into closed session or whether we'll direct the 1
submission of supplemental briefs on the matter.
2 Assuming we do not go into closed session, 3
this proceeding is being webcasted live for the 4
benefit of interested individuals who could not be 5
here today. And the webcast is also being recorded 6
and will be available for reviewing for 90 days at the 7
link we announced in our recent March 12th order.
8 Today's argument is also being 9
transcribed. And the transcript will be available to 10 the public on the NRC website.
11 Before proceeding with oral argument, I 12 would like to express gratitude on behalf of the 13 Licensing Board to several individuals who have worked 14 hard to support logistically the argument, the Board's 15 law clerk, Onika Williams, Board administrative 16 support staff, Karen Valloch and Twana Ellis and 17 finally the Board's IT support staff, Andy Welkie.
18 At this point, I would ask lead counsel 19 for each party to stand, introduce yourself and those 20 individuals who are with you today starting with 21 Petitioner and then SCE and then the NRC staff.
22 MR. AYRES: Thank you, Your Honor. My 23 name is Richard Ayres. I represent Friends of the 24 Earth in this matter. With me are my two colleagues, 25
9 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 Jessica Olson to my left and Kristin Gladd to my far 1
left. I will handle the first argument and they will 2
handle the second and third arguments respectively.
3 JUDGE HAWKENS: Thank you.
4 MR. FRANTZ: My name is Steven Frantz.
5 I'm with the law firm of Morgan Lewis. We represent 6
Southern California Edison. I'll refer to them as 7
Edison throughout the morning.
8 To my right is my associate Stephen 9
Burdick. Mr. Burdick will be handling the oral 10 argument, if there is any, on the 2.309 issues 11 Timeliness, Standing and Contention Admissibility. To 12 my left is Mike Short. Mr. Short is a former Vice 13 President of Engineering for Edison and he's currently 14 a consultant working on their steam generator recovery 15 project.
16 JUDGE HAWKENS: Thank you.
17 MR. ROTH: Good morning, Your Honors.
18 David Roth with the NRC staff. To my right is Maxwell 19 Smith, also the NRC staff counsel. My left is 20 Catherine Kanatas. With respect to how we divide up 21 the arguments, we anticipate that question one will 22 probably fall to me and questions two and three should 23 fall to Mr. Smith.
24 JUDGE HAWKENS: All right. Thank you.
25
10 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 Let us proceed please.
1 MR. FRANTZ: Judge Hawkens, with the 2
indulgence of the Board, if I could make a brief 3
perhaps one minute notification of a
recent 4
development.
5 JUDGE HAWKENS: Please do, Mr. Frantz.
6 MR. FRANTZ: Thank you. In a response to 7
a Request for Additional Information 32, Edison 8
submitted an operational assessment at 100 percent 9
power which satisfies Technical Specification 10 5.5.2.11. We are awaiting feedback from the NRC staff 11 on that operational assessment.
12 However, the timing of the staff's review 13 is critical to Edison and the co-owners. We seek 14 recert approval in May to be able to operate for the 15 summer peak load to best serve our customers and rate 16 payers.
17 However, we also recognize that the staff 18 may not be able to complete its review of the 19 operational assessment within that time frame. And as 20 a result Edison is considering filing a voluntary 21 license amendment request with a no significance 22 hazards consideration as the most expeditious method 23 to resolve the issue raised by RAI 32. The decision 24 25
11 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 JUDGE HAWKENS: Mr. Frantz, could I 1
interrupt for just one second? My IT expert requests 2
individuals when they are sitting at the table make 3
sure they speak directly into the mikes to make sure 4
it can be heard over the webstream.
5 MR. FRANTZ: Thank you.
6 JUDGE HAWKENS: And likewise when you're 7
at the podium.
8 MR. FRANTZ: The decision on whether to 9
file may occur as early as next week, but it may be 10 actually longer. We will promptly inform the Board 11 and the participants of Edison's decision once it's 12 made. Thank you.
13 JUDGE HAWKENS: Thank you, Mr. Frantz.
14 MR. AYRES: Your Honor, may I comment?
15 JUDGE HAWKENS: You may.
16 MR. AYRES: Frankly, this is somewhat 17 shocking development.
18 JUDGE HAWKENS: To all here assembled.
19 MR. AYRES: Nine months after this case 20 began and after the expenditure of a lot of resources 21 on our part, my client's part, your part, the United 22 States Government, Edison is admitting that they need 23 a license amendment, a remarkable last minute --
24 JUDGE HAWKENS: May I interrupt a second?
25
12 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 I want to make sure I understand Mr. Frantz's 1
statement. I don't think you're -- Did you say you 2
admit you need a license amendment or did you say you 3
were giving substantial consideration to voluntarily 4
seeking o0ne?
5 MR. FRANTZ: We do not admit we need one.
6 We believe an operational assessment at 100 percent 7
power obviates any potential need for one. However, 8
we are considering a voluntary license amendment 9
request as a means of expediting the NRC staff review 10 process.
11 JUDGE HAWKENS: All right. Thank you. I 12 just want to make sure I understood what you said.
13 Mr. Ayres, please continue.
14 MR. AYRES: To follow up on that, what we 15 have, of course, is nothing in the record at this 16 point. There is no license amendment offered nor any 17 kind of motion or other action with respect to this 18 proceeding. So as to today's proceeding it seems this 19 is not an event if that is filed and when whatever 20 papers are filed in this proceeding that Edison 21 chooses to file then we'll have to all look at what 22 meaning that might have for this proceeding.
23 I am curious and I would ask or perhaps 24 you could ask the staff to what extent they've known 25
13 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 about this and where they stand on it.
1 JUDGE HAWKENS: I will -- I'm not going to 2
press the staff in their workings until some motion is 3
formally submitted. At that point, they can certainly 4
opine on their position and advise us of anything else 5
that's relevant to the proceeding. I will simply ask 6
if the staff has any response it wishes to make to us 7
similar to the response made by Petitioner.
8 MR. ROTH: David Roth for the staff. No 9
response at this time, sir.
10 JUDGE HAWKENS: All right. Thank you.
11 Anything else before we start?
12 MR. FRANTZ: I would echo Mr. Ayres' 13 comments. I don't believe the announcement this 14 morning should have any effect on the oral argument 15 this morning. (1) We believe that we have voluntary 16 LAR if we do submit it. And (2) we have not made any 17 decision yet.
18 What we did not want to happen is have 19 this oral argument today without any discussion of 20 this possibility and then have the Board find out next 21 week or the following week that we were making that 22 consideration. We thought that would be not 23 appropriate to go forward with this oral argument 24 without making that notification.
25
14 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 JUDGE HAWKENS: All right. Thank you, Mr.
1 Frantz.
2 The first question, we have three general 3
questions as I mentioned in my introductory remarks.
4 The first area of concern is as follows: Taking into 5
account the language of the Commission's decision in 6
CLI-12-20, the fact that the CAL is an evolving 7
process and relevant precedence whether this Board 8
should limit its review to the four corners of the 9
March 27, 2012 letter to resolve the de facto license 10 amendment issue referred by the Commission.
11 If we could have the representative from 12 Petitioner come to the podium and address that issue, 13 we'd be grateful. And, first, I want as I indicated 14 at the outset to the extent that if a party wishes to 15 give a five minute introductory remarks, you're 16 welcome to. Would you like to do that, Mr. Ayres?
17 MR. AYRES: I would yes.
18 Your Honors, Judge Hawkens, Judge Baratta, 19 Judge Arnold, good morning and may it please the 20 Board. We are here this morning about a case which is 21 about whether the public including this Atomic Safety 22 and Licensing Board will have a role in determining 23 whether San Onofre Unit 2 will be returned to service 24 in its current damaged condition.
25
15 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 Petitioner seeks a period for public 1
comment and opportunity for public hearing that is 2
provided in the Atomic Energy Act and in 10 CFR 50.91 3
and 2.309 for license amendments an opportunity for a 4
public hearing of the significant safety issues 5
involved in restarting this reactor.
6 If public review procedures are required 7
because under the law, this proceeding is a license 8
amendment for two reasons. First, Edison has failed 9
to demonstrate that it can meet the technical 10 specifications of its license which required Edison to 11 show it can operate safely at 100 percent power. The 12 plant can therefore not be operated until either the 13 license is amended or such a demonstration is made.
14 Second, Edison's proposal to restart 15 without repairing or replacing the damaged steam 16 generators is a change, test or experiment under the 17 terms of 10 CFR 50.59 and requires a license amendment 18 accordingly.
19 The staff and the Licensee argue 20 erroneously that this decision is strictly an 21 enforcement matter between them. They would exclude 22 the public and this Board from the decision of whether 23 to allow San Onofre a run with damaged steam 24 generators.
25
16 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 This case is an important test of Chair 1
McFarlane's policy of transparency in regulating 2
nuclear power. Over the years, the staff and the 3
licensees have reduced the reach of licensing and 4
increased the role of enforcement with the result that 5
the public involvement is less and less. You have an 6
opportunity here to restore that balance.
7 Now let me turn to our first argument.
8 Edison cannot change the terms of its license without 9
a license amendment. Our position is very 10 straightforward despite all the pages of briefing in 11 this case.
12 Under the current license, Edison must 13 demonstrate that the steam generator tubes will 14 maintain integrity at full power. Edison cannot make 15 such a demonstration or has not made one. So it must 16 change the technical specifications. But technical 17 specifications cannot be changed without a change in 18 the license. It cannot be done by an enforcement 19 action between the staff and the licensee.
20 Thus, San Onofre cannot legally resume 21 operation unless the Licensee applies for and receives 22 a license amendment pursuant to a public adjudicatory 23 hearing as provided by Section 189(a)(1)(a) of the 24 Atomic Energy Act.
25
17 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 To date Edison has not demonstrated that 1
the steam generators at Unit 2 will maintain their 2
integrity at full power. When asked by the Board 3
whether Unit 2 could be safely operated at 99 percent 4
of power, the counsel for Edison demurred as you 5
recall. Instead Edison proposes to employ 6
compensatory measures such as operating at 70 percent 7
power for a limited term.
8 Just a week ago, Edison offered an OA 9
purporting to show that the damaged steam generators 10 could be operated safely. In the short time we've had 11 to examine that, only a week, we see a lot of flaws.
12 But if the Board wants to consider this out of time 13 submission, yet another out of time submission, by 14 Edison, we will ask for time for our experts to do a 15 full review and for us to respond on the record.
16 The law is settled as to whether a change 17 in the technical specifications requires a license 18 amendment. See, for example, in the matter of 19 Cleveland Electric Illuminating Company, Perry, both 20 Edison and the staff have actually conceived this 21 point earlier in this discussion, Edison in its brief 22 at page 38 and the staff in its brief at page seven.
23 Edison cannot now redefine what full power 24 means in the license, having agreed that you have to 25
18 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 change it if you change full power. They can't now 1
redefine full power. Full power is defined in the 2
tech spec in the operating license as 3438 megawatts-3 thermal. The staff agrees that you can't change that 4
definition by simply stating that you're going to.
5 Gregory Warnick, the Chief Resident 6
Inspector at San Onofre, for example, recently said, 7
"The tech spec says that they need to demonstrate tube 8
integrity through all ranges of operation" which would 9
be up to 100 percent which is how the license is 10 written. They need to comply with the words of that 11 specification.
12 And Edison has admitted that the proposal 13 to run at 70 percent power modifies its license. On 14 page four of its March 11th answer opposing our motion 15 to bar the use of subsequent Board notifications, 16 Edison states, "SCE has formally committed to operate 17 SONGS Unit 2 at 70 percent of rated thermal power."
18 That commitment modifies the licensing basis for Unite 19 2.
20 Edison has also agreed that the tech specs 21 are part of its licensing basis. See, for example, 22 Edison's brief at 46 which explicitly discusses Tech 23 Spec 5.5.2.11, the one at issue here as part of the 24 licensing basis for SONGS. Because the tech specs are 25
19 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 part of the licensing basis, modifying the tech specs 1
modifies the license.
2 JUDGE HAWKENS: Can I interrupt for just 3
one second? It seems like you've moved from your 4
introductory comments into substantive arguments and 5
I just want to --
6 MR. AYRES: I invite questions or comments 7
from the Board.
8 JUDGE HAWKENS: Yes, you're focusing on 9
the third area of concern identified in the order. Is 10 that it? I think you had indicated that you --
11 MR. AYRES: I am focused on the question 12 of whether this proceeding, the CAL and response 13 proceeding, is a licensing amendment. My colleagues 14 will focus on the standing and the third issue that 15 you laid out earlier. I don't think it exactly 16 coincides with the three that you mentioned earlier.
17 JUDGE HAWKENS: All right.
18 MR. AYRES: Which I think are all confined 19 to the first of the questions that I just laid out 20 whether this in fact is a licensing amendment. Does 21 that help?
22 JUDGE HAWKENS: Are you going to be 23 discussing the scope of the issue presented to us?
24 It's referred to us by the Commission. I would like 25
20 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 to focus on that first.
1 MR. AYRES: Yes.
2 JUDGE HAWKENS: All right. Frame the 3
issue as you believe. The Commission has framed it.
4 Tell me exactly how you interpret the issue as 5
referred by the Commission.
6 MR. AYRES: The Commission has said that 7
you should look to the -- The Commission has stated 8
that Friends of the Earth contends that the 9
Confirmatory Action Letter including the process for 10 resolving the issues in the letter is what they're 11 asking you to look at.
12 Our view is that if you were to take the 13 position advanced by the staff and Edison that you are 14 confined to merely looking at the four corners of the 15 CAL. This would be a tautological and absurd inquiry.
17 But what the question is here, I think the 18 question that the Commission has referred you, is this 19 process which began with the CAL and has gone with 20 responses to the CAL. A plan for restart is that 21 process. Does that process rise to the level of a 22 license amendment?
23 MR. AYRES: How do we know the process has 24 risen to the level of a license amendment until the 25
21 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 process is complete?
1 MR. AYRES: I think we're far enough along 2
in it now to know that it's a license amendment 3
process. This is not as simple as simply responding 4
to a CAL. I think of other cases where a CAL has been 5
issued because a valve was stuck open. An inspector 6
discovered it and issued a CAL. And the Licensee went 7
ahead and repaired it.
8 This is not a case like that. This is a 9
much more serious case.
10 JUDGE BARATTA: Why do you say it's not a 11 case like that? Could you be more specific?
12 MR. AYRES: I'll try. In this case, Your 13 Honor, you know this area technically far better than 14 I ever will. But my understanding is that what we've 15 had here is a break in the containment in the part of 16 the reactor which contains radioactive material. And 17 we have evidence of a great deal of wear or damage to 18 a lot of other tubes. And we also have a number of 19 analyses that have been done which show that the rate 20 of wear is remarkably higher than it should be.
21 So the issue here in this case is whether 22 this reactor is safe to run given that it appears to 23 be wearing away the protective barrier between the 24 radioactive and non radioactive parts of the reactor.
25
22 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 To me, that seems like a very serious concern, much 1
more so than some of the things which we've seen dealt 2
with by CALs. The reactor has been stuck down for a 3
year which suggests that the Licensee regards it as 4
very serious, too.
5 JUDGE HAWKENS: My understanding is 6
essentially two ways for license amendment. The 7
Commission can direct one, order one, or the Licensee 8
can request one. Here we don't have yet the 9
Commission directing one. We don't have the Licensee 10 requesting one.
11 But is it your argument then that they are 12 effectively asking for one? And therefore this is a 13 de facto license amendment proceeding.
14 MR. AYRES: They have not asked for one, 15 but they must because the characteristics of this 16 proceeding are such that a license amendment is 17 required under the law.
18 JUDGE HAWKENS: And it's your view they 19 made a mistake in their 50.59 analysis which would in 20 your view require them to request a license amendment.
21 MR. AYRES: In our view, that's right. If 22 they had done a 50.59 analysis on this properly, they 23 would have concluded that they required a license 24 amendment.
25
23 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 JUDGE HAWKENS: And how do we distinguish 1
that challenge to their 50.59 analysis from other 2
cases where the Commission has stated that challenges 3
to 50.59 analysis should be brought by a 2.206 claim.
4 MR. AYRES: I think I read 50.59 as 5
creating two duties, Your Honor. On the one hand, it 6
creates a duty for the licensee to do an analysis. On 7
the other, it creates a set of criteria for when that 8
analysis trips a license amendment.
9 In the first instance, in most cases, what 10 happens is the licensee does the 50.59 analysis and 11 then says nothing or says something needs to be done.
12 But we see nothing in 50.59 which prevents you from 13 applying the standards of 50.59 to this question.
14 You have been asked by the Commission to 15 tell them whether or not this is a license amendment.
16 And you need to find some basis for doing that. 50.59 17 provides in its criteria a good list of essentially 18 common sense criteria. And essentially what it says 19 is if you make a change that affects the risks 20 involved in a number of very specific ways, then there 21 has to be a license amendment. And the public has to 22 have an opportunity to review those risks and 23 understand whether it claims them unacceptable or not.
24 So, yes, we think 50.59 is a good guidance 25
24 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 for the Board to use. There are two grounds on which 1
the Board should make this decision. The first is the 2
one I began to talk about. That is if you need to 3
take a change in the license -- I'm sorry. If you 4
need to make a change in the tech specs, then the 5
license has to be changed. The second ground is if 6
you apply the standards of 50.59 you see that in this 7
case a license amendment is required.
8 JUDGE HAWKENS: Do you distinguish --
9 Edison seems to rely heavily on the Seabrook and Perry 10 cases as support for its position that this CAL is not 11 a de facto license amendment. Would you distinguish 12 those cases for us please?
13 MR. AYRES: Seabrook seems an entirely 14 different case to me, a classic enforcement case. A 15 dump valve failed in an open position causing the 16 pressurizer water level to drop. The staff at the 17 reactor did not respond as they were expected to. And 18 NRC personnel actually had to follow up and notify 19 them to shut down the reactor in order to deal with 20 this problem.
21 The issue here is a classic enforcement 22 issue. There is nothing involving the license. The 23 question is whether the license was being complied 24 with. The Commission staff says, "Wait a minute. You 25
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 haven't complied with it." And so there's an 1
enforcement issue.
2 In this case, in the San Onofre case, 3
there is a license change that's involved. This is 4
not as simple as just enforcing the current license 5
because Edison, at least in this record, has never 6
claimed that it can do that. To me those are entirely 7
different cases. And one is an enforcement case. The 8
other is not.
9 The Perry case is likewise I think a 10 classic enforcement case. Again, no question of 11 change in the license itself. It's simply a question 12 of enforcing the license to make sure the licensee 13 actually abides by it.
14 To me those two cases show appropriate 15 applications of the CAL enforcement process. This one 16 has become inappropriate.
17 JUDGE HAWKENS: Can you cite any case law 18 to me, Mr. Ayres, which supports your position that 19 this Board can find a de facto license amendment 20 before the staff has taken final action?
21 MR. AYRES: Your Honor, I think the staff 22 has misconstrued I think Perry in that respect.
23 JUDGE HAWKENS: Can you answer yes or no 24 and then follow up with an explanation?
25
26 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 MR. AYRES: Could you repeat the question?
1 I'm sorry.
2 JUDGE HAWKENS: Can you cite any case law 3
to support a conclusion that this Board could find a 4
de facto license amendment before the staff has taken 5
final action authorizing an amendment?
6 MR. AYRES: I think my answer is no. But 7
the staff is incorrect in citing case law which they 8
say supports their position. In that case, let me 9
find my notes here. Here it is. In that case, 10 petitioner argued -- It was a petition case from a 11 citizen -- that any change that required prior NRC 12 staff approval including non license changes, figured 13 hearing rights. It's almost the reverse of this 14 situation. The Commission rejected that view as they 15 should have.
16 But the case provides no support for the 17 idea that the staff must approve an action before it 18 can be considered a de facto license amendment. It's 19 about another situation altogether.
20 JUDGE HAWKENS: Isn't it problematic 21 though to challenge a process where the NRC staff is 22 reviewing a request and to come in and say, "This is 23 a license amendment proceeding" without giving the 24 staff the opportunity to do its job and make a 25
27 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 conclusion that in fact the license amendment is 1
required? It's conceivable, is it not, that if you're 2
correct -- In fact, one would presume that if you're 3
correct, the staff upon its review would determine 4
that a license amendment is required.
5 So why isn't it a better use of resources, 6
a better use of the job of the staff and its 7
expertise, to allow it to continue with its review and 8
make that determination? If it's incorrect, then the 9
opportunity exists for a petitioner to come and 10 challenge it at that point.
11 MR. AYRES: I think there's one reason 12 that overwhelms all others in that instance the 13 Commission has asked you to make this decision.
14 JUDGE HAWKENS: And it's your view they do 15 not want us to wait until final action has been taken 16 by the NRC staff.
17 MR. AYRES: Well, nothing is said to that 18 effect in their referral. And given how far we've 19 come in this process, the most efficient way forward 20 is for you to go ahead and make the decision.
21 JUDGE HAWKENS: And since there doesn't 22 seem to be any indication on the horizon for when an 23 analysis will be done for Unit 3. That makes sense 24 also unless we were to bifurcate it.
25
28 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 MR. AYRES: Right. I think your charge is 1
to as I read it advise the Commission or to rule for 2
the Commission what kind of animal this is.
3 Whereupon, the next step assuming that you rule that 4
it is a licensing proceeding is that a board would be 5
convened -- Well, there are several steps, but 6
assuming a hearing occurs, a board would be convened 7
to have that licensing hearing.
8 I assume that once you've advised the 9
Commission of your decision, if you advise the 10 Commission that this is a licensing proceeding, the 11 Commission will then instruct no doubt you, Judge 12 Hawkens, as the Chief Judge to impanel an ASLB.
13 Probably the most efficient one would be this one 14 right here since all of you are now familiar with a 15 lot of the facts of this case.
16 JUDGE HAWKENS: Let me ask you. This 17 merges a little bit with your contention and what 18 happens to your contention if we were to rule in your 19 favor. As I read your contention, it's essentially 20 arguing that this is effectively a license amendment 21 proceeding. If we were to rule in your favor -- First 22 of all, if we were to rule it was not a de facto 23 license amendment proceeding, that would dispose of 24 your contention and dispose of this proceedings.
25
29 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 If, on the other hand, we were to agree 1
this were a de facto license amendment proceeding as 2
I see it that grants you the relief you're requesting 3
and likewise renders your contention moot, giving you 4
the opportunity like every other member of the public 5
to bring a new contention once the staff issues its 6
notice of opportunity for hearing.
7 MR. AYRES: That's certainly one path that 8
could be followed. It might be more efficient simply 9
to allow us to amend our contention and essentially 10 continue this proceeding as a licensing amendment 11 proceeding. Certainly we would have to amend our 12 contention because as you say you would have ruled 13 favorably on the one that we have.
14 JUDGE BARATTA: I'd like to refer I think 15 it's to your initial brief that you filed back in 16 January, January 11th. Specifically, I'd like to ask 17 you a couple of questions on page 26 where you make a 18 statement.
19 MR. AYRES: Sorry.
20 JUDGE BARATTA: That's fine. Took me a 21 while to skip through mine. I had the advantage of 22 being able to do that while you were talking.
23 MR. AYRES: Could you give me the page 24 site again?
25
30 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 JUDGE BARATTA: Page 26, yes. And this 1
question really goes back to one I asked you a moment 2
ago about trying to distinguish between say the valve 3
case or any other CAL cases. You make a statement 4
here that SCE is asking to be allowed to operate at 70 5
percent power because Unit 2 is considered to no 6
longer be capable of operating within safety limits of 7
FSAR at higher power levels.
8 Now what I'm asking here is in the case 9
you cited where you had a stuck valve for example or 10 they failed to follow procedures. In the end, what 11 happened? What was the outcome of the CAL process in 12 your opinion?
13 MR. AYRES: I'm trying to remember. In 14 the procedures case I believe there was additional 15 training. It was handled as a need to improve the 16 performance of the staff.
17 JUDGE BARATTA: To restore their ability 18 to operate within their licensing basis, is that it?
19 MR. AYRES: Yes. There was no change in 20 the license in any way. It was simply these are the 21 rules under which the license requires you to operate.
22 You didn't. Now you must.
23 JUDGE BARATTA: Now in this case what it 24 seems they're saying is that it cannot be restored to 25
31 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 the licensing basis. Is that what you're claiming?
1 MR. AYRES: That is our decision. Yes, 2
Your Honor. If you look at the briefs in this case 3
and the material submitted, Edison has not claimed 4
that they can meet the 100 percent tube integrity 5
requirement of their license. Now they now claim they 6
have a OA which none of us have really had time to 7
look at which shows that. We frankly doubt it, but we 8
think we all need to look at it.
9 Up to now, you recall you have more than 10 once asked them whether their 70 percent proposal 11 means they can operate anywhere up to 99 percent. And 12 they have not been able to respond to that. They did 13 not provide an answer to the RAI 32 which essentially 14 was asking the same question.
15 And they didn't respond to you positively.
16 I forgot whether it was Judge Baratta or Judge Arnold 17 who asked whether they could operate at 99 percent.
18 But they did not respond to that on the phone call 19 either.
20 So we on this record argue that Edison has 21 not shown that it could meet that licensing 22 requirement, that tech spec, in its license. And 23 therefore it can't restart unless that's either 24 changed or they can show that they can meet it.
25
32 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 JUDGE BARATTA: All right. Thank you.
1 JUDGE HAWKENS: Did you say you would be 2
addressing the second area of concern as well, Mr.
3 Ayres?
4 MR. AYRES: I'm not sure now which is the 5
second area.
6 JUDGE HAWKENS: Let me read the second 7
area of concern. Assuming that the scope of the de 8
facto license amendment issue requires the Board to 9
look beyond the March 27 letter and to consider 10 whether SCE's Edison start-up plan if authorized would 11 constitute a de facto license amendment, do the 12 standards in Section 50.59 provide relevant guidance?
13 MR. AYRES: Yes. And I think I addressed 14 that.
15 JUDGE HAWKENS: I think that has probably 16 been answered. And you believe they would provide 17 relevant guidance.
18 MR. AYRES: Yes.
19 JUDGE HAWKENS: I don't think we need to 20 go further on that matter of concern with you anyway.
21 MR. AYRES: Okay. I think that's right.
22 JUDGE ARNOLD: Well, actually I would like 23 24 JUDGE HAWKENS: Well, correct. Sorry.
25
33 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 JUDGE ARNOLD: I would like to ask about 1
that because specifically 50.59(c)(2) has eight 2
criteria.
3 MR. AYRES: Yes.
4 JUDGE ARNOLD: And I'm curious because 5
what I want to know is how do you know whether or not 6
a specific criterion is met. For instance, many of 7
the criteria, let's just take the first one, more than 8
a minimal increase in the frequency of occurrence of 9
an accident previously evaluated.
10 Now is it that the Licensee has to 11 definitively show that the increase in a probability 12 of an accident is less than minimal? Or is it enough 13 for them to look at the changes and say there appears 14 to be no way it could affect any accident? Basically, 15 what's the burden on that?
16 MR. AYRES: Since 50.59 is normally 17 applied in a situation where the licensee is to do a 18 study and reach its own conclusions. I don't think 19 you actually have any standards for how that's to be 20 met. And indeed in the companion 2.206 proceeding, 21 we've argued that Edison has more than shaved the 22 corner on what it should have done in evaluating those 23 factors.
24 In this situation, I think your evaluation 25
34 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 has to be based on the record as it stands here.
1 We've addressed those issues at some length in our 2
brief and I don't have the page numbers right here.
3 But we've gone through them one by one arguing why the 4
risks are increased.
5 JUDGE ARNOLD: That was it. In your 6
brief, most of your argument consisted of they made 7
this physical change within the steam generator and 8
that has to affect the probability of tube rupture or 9
a different type of accident or whatever.
10 And there's no showing that it definitely 11 will -- let's see -- "more than a minimal increase in 12 the frequency of occurrence." That to me says some 13 increase in the probability of occurrence is 14 permissible. And I haven't seen anything in your 15 brief to show that this is beyond that threshold. How 16 would you address that?
17 MR. AYRES: Minimal is, of course, an 18 evaluative word, not a quantitative one. But I think 19 in the expert affidavits that we attached to our 20 briefs you'll find a much more elaborate discussion of 21 the ways in which and the amounts of which risks are 22 increased by what Edison is proposing to do. So I 23 think I would refer you to those affidavits as the 24 source of the factual material on which you should 25
35 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 reach your judgment on that.
1 JUDGE ARNOLD: In the statement of 2
considerations for the 1999 change to 50.59, the 3
Commission addressed this. And they said in a safety 4
analysis you're looking at orders of magnitudes. And 5
they use, for example, an event that is expected to 6
never occur, an event that is expected to occur maybe 7
once over the life of a reactor or an event that is 8
expected to occur several times. And they said but a 9
minimal increase would keep it in the same general 10 category. Whereas, more than minimal would be really 11 an order of magnitude change.
12 MR. AYRES: I think the materials that 13 have been submitted here together with both briefs 14 actually allow you to make that kind of judgment.
15 This is a unit which was designed, a steam generator 16 which was designed, to operate for 40 years. And the 17 last one didn't quite make it that far, but it did 18 last a long time.
19 We have analyses of the phenomenon that 20 are going on inside this generator now in the record 21 produced mostly for Edison which suggests that the 22 thresholds of safety for steam generator breaks will 23 be reached in far shorter time, more in the order of 24 one year or one and a half years. There is an order 25
36 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 of magnitude, two orders of magnitude actually I 1
guess. Forgive me if I don't have my orders of 2
magnitude right. But it's at least one. And we think 3
that represents a very significant increase in risk 4
under this 50.59 standard.
5 JUDGE ARNOLD: Now there is criterion 6
eight which is a differing kind of animal. And let me 7
read that to you. "Results are a departure from a 8
method of evaluation described in the FSAR used in 9
establishing the design basis or in the safety 10 analysis." What constitutes a departure from an 11 established method? Certainly, not changing some 12 parameter values within an analysis. But how do you 13 have to go before it's a departure from the analysis 14 method?
15 MR. AYRES: I'm not certain of this, but 16 I think you're asking me a hypothetical question. I 17 don't think that we pointed at that.
18 JUDGE ARNOLD: Okay. Let me ask you this.
19 If you have a general design criteria and if in the 20 FSAR there's an analysis that demonstrates that your 21 plant meets that general design criteria and you later 22 find out that there's another mechanism for failure 23 that wasn't considered in the original analysis and 24 you have to supplement it with another completely 25
37 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 different analysis method A to meet general design 1
criteria and you now find you have to use A exactly as 2
it was plus supplemented with analysis, is that a 3
departure from the method that is originally in the 4
FSAR?
5 MR. AYRES: Yes, I think so.
6 JUDGE ARNOLD: Okay. Thank you.
7 JUDGE HAWKENS: We are ready to move to 8
the third area of concern. Do you want me to refresh 9
your memory on that?
10 MR. AYRES: Please.
11 JUDGE HAWKENS: I'll refresh my own memory 12 as well. "Assuming the standards in Section 50.59 13 provide relevant guidance for this Board in resolving 14 the referred issue, whether the information in 15 Edison's October 3rd Unit 2 start-up letter including 16 its enclosures satisfies any of the Section 50.59 17 criteria that mandate a license amendment. Also 18 please be prepared to address questions regarding 19 provisions in the FSAR, tech specs and responses to 20 RAIs that may be relevant to the referred issue."
21 That's the third area of concern. Is that something 22 that you would be addressing, Mr. Ayres, or one of 23 your colleagues?
24 MS. GLADD: No, that's you.
25
38 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 MR. AYRES: I guess I am.
1 (Laughter.)
2 Couldn't get out of it. So the question 3
has to do with what was submitted in October in 4
response to the CAL. Is that the idea?
5 JUDGE HAWKENS: This will go more to the 6
actual merits of your views on the proper application 7
of the 50.59 analysis.
8 JUDGE BARATTA: I think you had more 9
questions in that area if I recall than I do. Do you 10 want to start off on that.
11 JUDGE HAWKENS: Or do you want to start 12 with the tech spec?
13 JUDGE BARATTA: Okay. I'd actually like 14 to start with the -- Yes, that's part of that area of 15 concern which deals with the technical specifications 16 and their responses on the RAIs that may be relevant 17 to the de facto license amendment issue if we could.
18 I'd like to refer you to your reply brief. Yes, 19 February 13th. There was a figure that appeared in 20 the Large affidavit which actually has been superceded 21 and was in connection with Paragraph 5.8.18 I believe.
22 And there's a new figure similar to that 23 which appeared in SCE's fifth notice concerning RAI 24 response. I'd like to actually use that figure, the 25
39 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 newer figure.
1 MR. AYRES: Which figure is that on? The 2
Large --
3 JUDGE BARATTA: Well, I don't have the 4
page numbers unfortunately. I'm going by paragraph 5
number, 5.8.18.
6 MR. ROTH: Pardon me, Your Honor. This is 7
David Roth for the staff. I believe that's page 31 of 8
62.
9 JUDGE BARATTA: Thank you.
10 MR. FRANTZ: If I could bring to the 11 attention of the Board, I believe that figure is 12 proprietary.
13 JUDGE BARATTA: That's why we're referring 14 to the newer figure which does not appear to be such.
15 But the discussion pertains to that.
16 JUDGE HAWKENS: Except we don't want them 17 to use the --
18 JUDGE BARATTA: The newer one, yes. But 19 what I'd like to do is actually -- That figure has 20 been redone or something similar to it.
21 JUDGE HAWKENS: Right. We want to refer 22 to the figure in the response to the RAI, not to the 23 figure in the Large affidavit.
24 JUDGE BARATTA: But the discussion 25
40 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 pertains to both the old and new figures. I think we 1
have the ability to project that figure.
2 MR. AYRES: That would be very helpful.
3 JUDGE BARATTA: That's page 37 of 41.
4 Yes. Okay. That's the figure that I really want to 5
discuss, but it is -- In the discussion, at least, 6
that's in the Large affidavit, it's pointed out that 7
operation at 100 percent power which I believe is the 8
pink line of the boxes. I've got to look at this.
9 This would result in probability of a burst, a tube 10 rupture, of about five percent at about 11 months.
11 Now if I look at the tech specs going to 12 tube integrity, it basically says, "Okay. Now be able 13 to have a tube burst under a variety of conditions."
14 Does that tech spec in any way in your mind say it's 15 okay after ten months to have a tube burst or have a 16 higher probability of a tube burst? Or is that 17 something that supposed to apply for the entire life 18 of the plant?
19 MR. AYRES: I don't think it says it's 20 okay to have tube burst after 11 months. This is the 21 table which I really was referring to earlier about 22 the increase in risk involved in the proposed restart 23 plan. But if I understand what you're asking is 24 whether there's a hard and fast line here that 25
41 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 anything underneath is an acceptable risk and anything 1
above is not. Or am I misunderstanding?
2 JUDGE BARATTA: No, what I'm trying to get 3
at is can the tech specs be satisfied for a certain 4
amount of time for a period and not satisfied for 5
another period of time without it being a license 6
amendment.
7 MR. AYRES: Understand. No, in our view, 8
you can't do that. You can't satisfy the tech specs 9
for a period of time. The license is for 40 years or 10 30 years, whichever it is. And the tech spec applies 11 throughout that period. So to say that we can satisfy 12 it for a year and a half is not the same thing as 13 compliance with it.
14 JUDGE BARATTA: Okay. Are you at all 15 familiar with a -- There's a case. It's a Palo Verde 16 case 43 NRC 344. And this was a 2.206 actually, not 17 an ASOP proceeding. I was wondering if you were at 18 all familiar with that case.
19 MR. AYRES: I had read it, but not for 20 quite some time.
21 JUDGE BARATTA: All right. In that case, 22 I won't put you on the spot.
23 MR. AYRES: Feel free to ask and at worst 24 we can respond afterwards.
25
42 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 JUDGE BARATTA: What I'm referring to is 1
it seems to me that this situation is very similar 2
here where in order to operate these generators 3
without a problem developing apparently they had to 4
operate at 86 percent power to get a certain hot leg 5
temperature. And apparently that's what was causing 6
the issue.
7 And then in order to operate at 100 8
percent power they had to get a tech spec change to do 9
that. And I guess what I'm looking at here is that 10 although we're not doing -- Is this not leading down 11 that same path?
12 MR. AYRES: I think it is.
13 JUDGE BARATTA: And it's such here the 14 power will be limited as opposed to hot leg 15 temperature.
16 MR. AYRES: But it's alike in that the 17 Licensee is saying we can't meet the requirements that 18 are currently in our license. We have to have 19 additional requirements. And, having said that, those 20 are changes in the tech specs. And to add this 70 21 percent limit is to add another condition to the tech 22 specs which in turn requires a license amendment in 23 our view.
24 JUDGE ARNOLD: I'm going to get back on 25
43 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 50.59 for a moment. On pages 19 to 23 of your brief, 1
you address the Criteria 50.59(c)(2) that you consider 2
the current change, test or experiment to satisfy.
3 These were Criteria 1, 2, 3, 5, 6 and 7. You left out 4
Criteria 4 and 8. Correct?
5 MR. AYRES: Yes. As I mentioned earlier.
6 JUDGE ARNOLD: In Appendix B of the Edison 7
brief, Edison addresses these criteria countering your 8
arguments with their own. And that's a table in 9
there. And in there, they counter your arguments on 10 Criteria 4 and 8 even though you hadn't exactly called 11 them out in your argument. They called through the 12 entire brief and found statements that would indicate 13 that you also considered four and eight might satisfy 14 you. You're familiar with that.
15 MR. AYRES: I'm familiar with that, yes.
16 JUDGE ARNOLD: Okay. My question concerns 17 specifically Criterion 8 again which is results in 18 department from a method of evaluation described in 19 the FSAR used in establishing the design basis or in 20 the safety analysis.
21 Now on page 13 on your brief, you cite 22 50.59(a)(6) which is a definitions region. And in 23 that part of what you cite from there is inconsistent 24 with the analysis or descriptions in the Final Safety 25
44 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 Analysis Report. It is exactly the same words that 1
are in Criterion 8. Do you agree?
2 MR. AYRES: Yes.
3 JUDGE ARNOLD: Okay. Also in the Large 4
report on page 5, he states "The methods of deducting 5
merely by improving inference from the probe 6
inspection results"
- blah, blah,
- blah, "are 7
inconsistent with the analysis and descriptions in the 8
FSAR." So it appears that the Large affidavit also 9
believes that Criterion 8 might be satisfied. Does 10 that seem logical?
11 MR. AYRES: Might not be satisfied?
12 JUDGE ARNOLD: Might be satisfied.
13 MR. AYRES: Might be satisfied triggering, 14 yes.
15 JUDGE ARNOLD: Yes.
16 MR. AYRES: Yes, it does.
17 JUDGE ARNOLD: Okay. From these bits and 18 pieces we find in your brief and in the Edison brief, 19 could we -- should we construe from these that in fact 20 you do think that Criterion 8 is satisfied even though 21 your brief didn't specifically call them out?
22 MR. AYRES: I think you could come to that 23 conclusion, yes.
24 JUDGE ARNOLD: Thank you.
25
45 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 JUDGE HAWKENS: Is that your position 1
before us today that Subsection 8 was in fact 2
satisfied?
3 MR. AYRES: Yes.
4 JUDGE HAWKENS: It appears that Edison 5
viewed it that way because they joined the issue in 6
there.
7 MR. AYRES: Right. And, of course, as you 8
know under 50.59 satisfaction of any one of the eight 9
is sufficient to require a license amendment.
10 JUDGE HAWKENS: We just wanted to make 11 sure you were not explicitly waiving any reliance on 12 eight.
13 MR. AYRES: No, we're not.
14 JUDGE ARNOLD: I just have two other 15 questions concerning your brief. In your brief, you 16 repeatedly referred to current tube damage in the Unit 17 2
steam generators as being unacceptable for 18 operation. You state that on page one, page seven and 19 page 12 and possibly elsewhere.
20 But in the Southern California Edison 21
- brief, it notes that the SONGS technical 22 specifications do not require a tube to be removed 23 from service until its wall thickness is reduced by 35 24 percent. And it also states that the technical 25
46 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 specifications allow steam generators to be operated 1
with up to about eight percent of the tubes plugged.
2 MR. AYRES: Yes.
3 JUDGE ARNOLD: So when you say that they 4
have tube damage that is unacceptable for operation, 5
do you have evidence that the wall thickness has been 6
reduced by 35 percent in more than eight percent of 7
the tubes?
8 MR. AYRES: No, Your Honor. We don't. I 9
don't think that's the basis for that statement. The 10 basis for the statement is the extensive evidences of 11 wear in both Units 2 and 3 which indicate a much more 12 rapid erosion of those tubes than should be expected.
13 So the question has to be seen I think in 14 a slightly different way. We're not saying that that 15 particular eight percent requirement is violated.
16 We're saying if you look at these reactors the steam 17 generators are so damaged after such a short time that 18 as the table showed us serious consequences are not 19 very far away.
20 JUDGE ARNOLD: Okay. So you're 21 extrapolating from the current damage to say somewhere 22 in the near future.
23 MR. AYRES: Yes.
24 JUDGE ARNOLD: Okay.
25
47 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 MR. AYRES: And the Licensee I don't think 1
contests that point. I think by coming in and saying 2
we want to run this for five months and from other 3
things they've said they are admitting that they see 4
this as a serious problem. They have studies which 5
suggest that the tube ruptures may not be very far 6
away at all. And so they're unwilling to rely on the 7
tubes in the way they should be able to under the 8
license.
9 JUDGE ARNOLD: In your brief on pages 3, 10 4, 5, 7, 10 and 28, you claim that Edison has failed 11 to determine the root cause of steam generator tube 12 failure.
13 MR. AYRES: Yes.
14 JUDGE ARNOLD: Can you tell me? What is 15 your definition of the term "root cause"?
16 MR. AYRES: That's a very interesting 17 question, Judge Arnold. I find it interesting because 18 I'm not sure that I've seen anything from the Nuclear 19 Regulatory Commission that defines it.
20 But I believe what's intended, what's 21 meant by it, is not just looking at what is the 22 mechanical cause of what occurred. Here are all these 23 damaged tubes. Oh, where there was a lot of vortex.
24 There was a lot of shattering and rattling going on in 25
48 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 there. That's the cause. Well, yes. That's the 1
proximate cause as we lawyers would call it.
2 But the root cause goes back to how did 3
that happen. And I take it the term root cause to 4
mean the cause in terms of how the thing was designed 5
and built that made what has occurred inevitable. And 6
that's what I think has failed to be given here either 7
by the Licensee or by the staff.
8 JUDGE ARNOLD: That in fact is what I see 9
as root cause, the definition of root cause. But can 10 you cite any rule or law that requires that the root 11 cause be determined? I mean, do they have to figure 12 out why the design problem occurred or do they just 13 have to fix the design problem of the steam generator?
14 MR. AYRES: Isn't the question whether you 15 can fix it if you don't determine what the root cause 16 is? In this case, for example, if the root cause is 17 the design itself, and we walk through in several 18 affidavits exactly what we mean by that, the removal 19 of the stay cylinder, replacement with additional 20 tubes, different kinds of structure to hold the tubes, 21 those changes may make this kind of damage inevitable.
22 So there may be nothing you can do short of putting in 23 new steam generators that will resolve the root cause 24 here.
25
49 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 And I think that's the reason why getting 1
to the root cause is so important because it tells you 2
whether Band-Aids will work or whether you need to go 3
back and start over.
4 JUDGE ARNOLD: But can you cite any 5
requirements that the root cause as you define it 6
needs to be determined and corrected?
7 MR. AYRES: I believe it's in the NRC 8
regulations, but I can't cite them to you right now.
9 JUDGE ARNOLD: Because I did find that 10 10 CFR 50, Appendix B has some criteria in it. Criterion 11 16 I think it is says "Find the cause and fix it."
12 But it doesn't go beyond the cause of the problem to 13 the root cause. And I couldn't find any reference to 14 root cause anywhere in 10 CFR 50.
15 MR. AYRES: There is certainly a lot of 16 discussion of root cause in the analyses done by the 17 staff and offered by the Licensee. Our concern with 18 them is they don't seem to really address the root 19 cause.
20 JUDGE ARNOLD: Okay. Thank you. I'm 21 done.
22 JUDGE HAWKENS: Do you have any final 23 concluding comment, Mr. Ayres?
24 MR. AYRES: I don't think so, Your Honor.
25
50 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 I wanted to ask you though whether you want us to 1
address the other two questions now. Or do you want 2
to have argument on this first, the issue of whether 3
this is a license amendment first, and reserve 4
whatever inquiry on standing and the other issue?
5 JUDGE HAWKENS: We've actually asked the 6
questions we had on all three areas of concern at this 7
point.
8 MR. AYRES: Okay.
9 JUDGE HAWKENS: I'll give you a few 10 minutes if there is any followup that you want to 11 make.
12 MR. AYRES: Yes, we'd appreciate the 13 opportunity to respond after the other arguments.
14 JUDGE HAWKENS: You will have time for 15 rebuttal after arguments made by the other parties.
16 You have nothing else to add.
17 MR. AYRES: Otherwise, I'm done.
18 JUDGE HAWKENS: All right. Thank you.
19 MR. AYRES: Thank you.
20 (Off the record discussion.)
21 JUDGE HAWKENS: Mr. Frantz, would you like 22 to take the opportunity for a five minute, 23 uninterrupted presentation before we go into the areas 24 of concern?
25
51 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 MR. FRANTZ: Yes, I would, Judge Hawkens.
1 JUDGE HAWKENS: All right.
2 MR. FRANTZ: Good morning.
3 JUDGE HAWKENS: Good morning.
4 MR. FRANTZ: I would like to thank the 5
Board for this opportunity to explain our position on 6
the issues referred by the Commission in its decision 7
of November 8.
8 The Commission was very specific in its 9
directions to the Board. The Board is directed to 10 consider whether the CAL constitutes a de facto 11 license amendment. The Commission did not direct the 12 Board to consider whether restart actions require a 13 license amendment pursuant to 10 CFR Section 50.59.
14 The Commission was clearly aware of our 15 restart actions and clearly aware of Section 50.59.
16 It referenced both in other places in its decisions.
17 But we think the absence of any discussion in the 18 referral to the Board is very significant. It 19 indicates to us that the Board was not directed to 20 consider either those restart actions or Section 21 50.59.
22 We also take a position that consideration 23 of or providing hearing rights on the CAL itself would 24 be inconsistent with the NRC's regulatory system. All 25
52 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 of the participants agree that the CAL itself is an 1
enforcement action as discussed in the Seabrook 2
decision which is referenced by the Commission.
3 Members of the public are not entitled to 4
a hearing on a CAL. Furthermore, under long-standing 5
precedent including the Bellotti decision by the Court 6
of Appeals, members of the public are not entitled to 7
a hearing on other kinds of enforcement actions such 8
as confirmatory orders.
9 A CAL is actually a lesser enforcement 10 action than a confirmatory order. It would turn the 11 entire regulatory system on its head to give more 12 hearing rights on a CAL than the NRC affords on 13 confirmatory order.
14 We strongly urge the Board to apply the 15 normal process applicable to CALs. Under the normal 16 process, the licensee makes commitments. The NRC 17 staff confirms those commitments as part of the CAL.
18 The NRC does its inspections to verify that we've met 19 our commitments and then closes the CAL. None of 20 these activities implicate the hearing rights under 21 Section 189 of the Atomic Energy Act.
22 If a licensee needs to request a license 23 amendment, it does so under Section 50.59. If the 24 staff finds that we should have requested one and we 25
53 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 don't, they can take enforcement action and can 1
require us to submit a license amendment.
2 If a member of the public believes that 3
neither we nor the staff have fulfilled our 4
obligations under Section 50.59, it can file a 2.206 5
petition. However, again there are no hearing rights.
6 And we actually file the application for a license 7
amendment.
8 Friends of the Earth is essentially 9
requesting that this Board disregard the longstanding 10 case law as reflected in Seabrook and Bellotti.
11 Friends of the Earth essentially wants this Board to 12 engage in a wide ranging inquiry into the safety of 13 restart and the acceptability of our restart actions.
14 However, again under Section 189 of the Act and the 15 NRC's regulatory system, such issues are delegated to 16 the staff and are not appropriate for a hearing.
17 Contrary to FOE's arguments, the public is 18 not being denied an opportunity to participate in this 19 process. The staff has already held six public 20 meetings where members of the public can come in and 21 submit comments or raise questions. And the staff has 22 announced it's having more public meetings.
23 Additionally, they can always submit a 24 2.206 petition and in fact FOE has already engaged in 25
54 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 a 2.206 process. Thus, nobody is being cut out of the 1
public process.
2 Finally, as a practical matter, if the 3
Board were to accept FOE's position, it would set a 4
horrible precedent for the rest of the nuclear 5
industry. CALs are a very common regulatory tool, 6
especially situations in which a plant is shut down 7
due to equipment problems.
8 The CAL process would not be viable if a 9
member of the public could request a hearing on 10 restart actions. A hearing on restart actions would 11 result in long delays in restart. The cost would be 12 substantial not only to the utility that would need to 13 provide replacement power but also potential 14 disruption of the grid during high peak load seasons.
15 If the Board were to grant a hearing on 16 the CAL, it would essentially negate the CAL as a 17 useful regulatory tool. No licensee is going to want 18 to agree voluntarily to a CAL if they know it can be 19 dragged through the hearing process.
20 Thank you very much and willing to take 21 any questions that you may have.
22 JUDGE HAWKENS: Let's start with the first 23 area of concern, namely the scope of the issue 24 presented. Speaking for myself, if I accepted your 25
55 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 argument that our review should be limited to the four 1
corners of that short letter --
2 MR. FRANTZ: Yes.
3 JUDGE HAWKENS: -- which was drafted by 4
the NRC staff I'm sure with great care, I'd come to a 5
very quick conclusion that that standing alone, read 6
in isolation, doesn't come close to being a de facto 7
license amendment.
8 MR. FRANTZ: I would hope so, yes.
9 JUDGE HAWKENS: It seems like the 10 Commission could have likewise come to that conclusion 11 and would have. It wouldn't have wasted resources of 12 this Board, of the NRC staff, a petitioner and of you 13 if the question was that simple and the resolution was 14 that simple. Your response to that.
15 MR. FRANTZ: Yes. That's not unusual for 16 the Commission to refer these kinds of hearing 17 requests to a Board. For example, there have been 18 many cases where members of the public have requested 19 hearings on confirmatory orders. Those are routinely 20 delegated to the Licensing Board even though under 21 longstanding case law members of the public are not 22 entitled to hearing rights on a confirmatory order 23 that imposes more restrictions on a licensee.
24 We want the Board simply to follow the 25
56 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 same process it would follow for a confirmatory order.
1 Again, it's I think a fairly simple process. It's 2
happened in many, many cases in the past. And you 3
should follow that process here.
4 JUDGE HAWKENS: In this day of dwindling 5
resources, Mr. Frantz, it seems odd to me that the 6
Commission would refer an issue with a clear, 7
foreordained answer. That's just again -- I 8
understand your position on it. But it seems to me 9
other issues that are referred to the Board there's 10 usually some complexity involved. And, of course, an 11 appellate tribunal always if there's some type of 12 complexity involved would like a lower tribunal to 13 look at it more closely first.
14 MR. FRANTZ: In this case, of course, the 15 CAL does have seven numbered paragraphs that indicate 16 actions that Edison's planning to take and in some 17 cases has already taken by the way. It also has a 18 requirement for us to seek restart approval from the 19 staff.
20 We believe it's appropriate for the board 21 to look at each of those seven paragraphs and the 22 restart approval and determine whether or not those 23 require a license amendment. That's not necessarily 24 a pro forma exercise. We believe that it does require 25
57 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 the Board to go and evaluate those seven conditions 1
and the restart approval.
2 JUDGE HAWKENS: Not only are you asking 3
the Board to limit its review to that single letter 4
which triggered this lengthy process, this complex 5
process, but you're asking the Board to limit its 6
review of the Commission decision to its statement of 7
two issues rather than the entire text. And the 8
Commission as you are familiar stated that the 9
Petitioner argued before it that the Confirmatory 10 Action Letter issued to SCE, to Edison, including the 11 process resolving the issues raised in the letter 12 constitutes a de facto license amendment proceeding.
13 And it was that portion of the 14 Petitioner's hearing request it referred to us. And 15 it subsequently framed the issues. But it seems to me 16 that the Board could be making a mistake by not 17 looking at the entire text of the Commission's 18 decision in determining the scope of the issue 19 referred.
20 MR. FRANTZ: Yes, I have no problem with 21 the Board looking at the entire context. And I think 22 part of that context also includes the footnote where 23 the Board is referred to the decisions in both Perry 24 and Seabrook. That provides the relevant guidance I 25
58 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 think for the Board.
1 And in both Perry and Seabrook the Board 2
confined itself to the actual action taken by the NRC 3
staff. It did not look at the actions by the 4
licensee.
5 JUDGE HAWKENS: Of course, the NRC staff 6
hasn't taken any final action yet.
7 MR. FRANTZ: The only final action it has 8
left other than the administrative actions of tracking 9
and closing the CAL is to issue the restart approval.
10 JUDGE HAWKENS: Surely, that's not the 11 only. That perhaps could be final action with regard 12 to the CAL.
13 MR. FRANTZ: Yes.
14 JUDGE HAWKENS: But it could incident to 15 its review of the CAL and incident to its closeout.
16 Until it makes a final determination on whether a 17 license amendment is required, we don't know what it's 18 going to do in that regard.
19 MR. FRANTZ: Hypothetically, for example, 20 let's assume the staff comes to the conclusion that we 21 need a license amendment. In that case, we'll file a 22 license amendment or take other actions to obviate the 23 basis for the staff's determination. If that happens, 24 then Friends of the Earth will have a chance to submit 25
59 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 a petition to intervene.
1 JUDGE HAWKENS: But you've not asked this 2
Board to stay its hand on resolving the issue referred 3
by the Commission. In fact, I think you encouraged us 4
to take prompt action.
5 MR. FRANTZ: That's correct. And in that 6
regard if you come to the opposite conclusion that you 7
need to wait for the staff, then this Board can't make 8
a decision on Unit 2 until they give our restart 9
approval and we're up and operating. Can't make a 10 decision on the entire case until we do the same thing 11 for Unit 3. And that's not eminent at all.
12 Theoretically, then you'd have a
13 proceeding ongoing for years while the staff awaits 14 our action on Unit 3 and while they review that and 15 approve it. I don't think there is any intention for 16 the Board to, first of all, bifurcate this proceeding 17 between Units 2 and 3 or to wait indefinitely for 18 actions by Edison or the staff's review. We believe 19 that the Board should rule on the CAL itself like they 20 did in Seabrook. In Seabrook the Board did not wait 21 until the staff completed its review. The Board ruled 22 based upon the four corners of the CAL itself.
23 JUDGE HAWKENS: Do you have any precedent 24 that would bar this Board from going beyond the four 25
60 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 corners of the CAL and looking at the record that's 1
been compiled to date incident to that process?
2 MR. FRANTZ: No, I don't think there's 3
anything that would bar it. But the precedent in 4
Seabrook certainly indicates that the Board is 5
certainly capable of ruling now based upon the four 6
corners of the CAL without looking at our restart 7
actions and without waiting for the staff 8
determination on restart. So that's a precedent the 9
indicates you can go our way. It's certainly not a 10 requirement or a bar.
11 JUDGE HAWKENS: All right. Let's assume 12 that your interpretation of referred issue is unduly 13 narrow and that in fact the Commission intended this 14 Board to look at the process which was as the issue 15 was framed or the argument was framed or either framed 16 the Petitioner's argument. They were raising a 17 challenge to the CAL process.
18 As I read your brief, it seemed that you 19 would agree that it would be appropriate for the Board 20 to be guided by Section 50.59 in determining whether 21 the de facto license amendment in fact occurred.
22 MR. FRANTZ: Let me answer this two ways.
23 First of all, process itself is somewhat an ambiguous 24 term. If you interpret the CAL process as I think the 25
61 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 staff does and I think we do as the NRC staff actions, 1
then those NRC staff actions are governed by Perry.
2 If you want to look broader -- and we 3
don't believe it's appropriate -- and if you construe 4
the CAL process as including our restart actions, then 5
the restart actions are subject to 50.59. That's 6
correct.
7 JUDGE HAWKENS: All right. So the restart 8
actions, clearly they were subject to 50.59 for you.
9 MR. FRANTZ: That's correct.
10 JUDGE HAWKENS: When you did that analysis 11 as I understand it in your judgment they did not 12 trigger the need for seeking a license amendment. You 13 would agree that if the issue is broader and if we 14 were to look at the entire process, we should use that 15 as a guide as well for purposes of our analysis.
16 MR. FRANTZ: That's correct.
17 JUDGE HAWKENS: All right.
18 JUDGE BARATTA: I guess I don't read it 19 the way you do. I see words in the footnote for 20 example like "see generally" the cases that were cited 21 which to me implies that these are some that are 22 available for you to look at but not limiting us to 23 looking at that in that light. Would you care to 24 comment on that?
25
62 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 MR. FRANTZ: Yes. If you look at the 1
decision by the Commission on November 8th, a month 2
before that, we had submitted our CAL response with 3
our restart report and with our planned restart 4
actions. And the Commission is clearly aware of that 5
and referred to that in other parts of its decision.
6 If the Commission had wanted the Board to 7
look at that CAL response and the restart actions 8
under 50.59, we think the Commission would have said 9
so. It did not.
10 JUDGE BARATTA: But they did. That's the 11 whole point. They referred specifically to the 12 Friends of the Earth which includes those actions.
13 MR. FRANTZ: Actually, if you look at the 14 Friends of the Earth initial petition intervene, I 15 think there may have been two references to the CAL in 16 that entire petition. And it didn't say much more 17 than the CAL warrants a hearing.
18 I don't believe that they discussed at all 19 Section 50.59 in the context of the CAL. And they 20 certainly didn't mention our restart actions because 21 the petition was well before the restart actions.
22 JUDGE BARATTA: Evidently, the Commission 23 says the history of -- it says, "Friends of the Earth 24 contends that a confirmatory action letter issued to 25
63 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 SCE including the process for resolving the issues 1
raised in the letter" including the process which 2
includes your restart, which includes your operational 3
assessment, etc. That's all part of the process. If 4
I look at the enforcement manual, that's what it says.
5 MR. FRANTZ: First of all, I think all the 6
Commission is doing there is repeating the language in 7
the petition. The actual direction is that the Board 8
does not refer to the CAL process. In any case --
9 JUDGE HAWKENS: Well, I disagree with 10 that, Mr. Frantz. They referred that portion of 11 Petitioners' hearing request to the Board. And when 12 they say they're referring that portion they are 13 reviewing to the language that Judge Baratta just 14 quoted.
15 MR. FRANTZ: In any case, as I said 16 before, if you look at the words "CAL process" we 17 believe that refers to actions by the NRC staff and 18 not our restart actions. And, for example, one of the 19 actions is going to be a restart approval.
20 Under the decision in Perry, restart 21 approval does not involve a license amendment. If you 22 interpret this as meaning the CAL process, you can 23 still find that the CAL process does not involve a 24 license amendment without looking at our restart 25
64 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 actions.
1 JUDGE BARATTA: But if, as directed by the 2
Commission, we look at restart actions, what happens 3
if we conclude that that does constitute a license 4
amendment?
5 JUDGE HAWKENS: I think there's one answer 6
to that question, but I may be wrong, Mr. Frantz.
7 MR. FRANTZ: If you find, if you have the 8
broader interpretation of the Commission's decision 9
and believe it includes the restart actions and if you 10 find that they involve a license amendment, then the 11 next step is to look at whether or not their petition 12 meets 2.309. And we don't believe it does. And 13 therefore their petition should be dismissed and this 14 proceeding should be concluded.
15 JUDGE BARATTA: Well, we really have two 16 questions. One is does the CAL process constitute a 17 de factor license amendment. And the other one is 18 whether or not Friends of the Earth have submitted a 19 contention in accordance with 2.309. So they're 20 distinct processes.
21 MR. FRANTZ: That's correct.
22 JUDGE BARATTA: If we find in the first 23 case -- That is distinct from the second case, 24 correct?
25
65 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 MR. FRANTZ: That's correct. And, for 1
example, if the Board rules in our favor on the first 2
issue, then the proceeding is done. And as Judge 3
Hawkens mentioned if they find adverse to us, then the 4
Board still needs to look at the second question. And 5
we believe the Board should dismiss the petition on 6
the second issue.
7 JUDGE HAWKENS: Is that effectively saying 8
what I believe I interpreted the staff's position 9
being is if by finding in Petitioner's favor on the 10 first issue, that would be effectively granting them 11 the relief they sought in their contention, therefore, 12 rendering the contention moot.
13 Therefore, they would become as any other 14 member of the public. When and if the staff issues a 15 notice of opportunity for hearing, they would be 16 eligible to then submit a new petition for hearing.
17 MR. FRANTZ: That's one way of looking at 18 it. If you view it that way, then I would suggest the 19 Board's or the Commission's decision almost becomes 20 nonsensical. Because if you agree with us and the 21 staff on the first issue, then the proceeding is 22 dismissed without considering the second issue.
23 But if you agree with the Petitioners on 24 the first issue, then it becomes moot and you never 25
66 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 address the second issue at all. We believe that even 1
apart from the first issue the Board should make 2
findings on standing and contention admissibility and 3
timeliness. And if it finds adverse to the 4
Petitioners, it can dismiss this entire proceeding 5
without reaching the first issue. Otherwise, the 6
Board's directions have no meaning.
7 JUDGE BARATTA: I guess the Commission has 8
asked us two questions. I've got to answer both 9
questions. And the second one is have they put in a 10 contention that's admissible. It has nothing to do 11 with the first one.
12 MR. FRANTZ: I agree.
13 JUDGE BARATTA: If we find the first one 14 is in your favor, then we can look at the second one 15 and just say "Hey, it's moot because there's no 16 proceeding." But if we find the opposite, then 17 whether or not they have submitted one that's 18 admissible or not, the proceeding at this point may 19 not occur because then the Commission has said they 20 would then notice it, etc., which at that point they 21 can come back and do whatever they want to do.
22 MR. FRANTZ: That's the dilemma that we're 23 faced with this language because as you've indicated, 24 Judge Baratta, if you always decide the first issue 25
67 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 first, then the second issue is meaningless. And we 1
would suggest that you can decide the second issue 2
first if you want to. And if you rule against the 3
Petitioners, the proceeding can be dismissed without 4
reaching the first issue.
5 JUDGE BARATTA: But we don't answer the 6
Commission then.
7 MR. FRANTZ: I think you do. The petition 8
was referred to the Board. And I think the Commission 9
wants a ruling on the petition. And you can rule on 10 the petition by dismissing it on grounds of standing 11 or timeliness or contention admissibility.
12 JUDGE BARATTA: I have another question, 13 too. You say that the staff has not taken any action.
14 If I look at the enforcement manual, it appears that 15 there are a series of actions that the staff takes, 16 one of which is when they responded to your letter in 17 accepting the CAL in essence for review. Isn't that 18 an action?
19 MR. FRANTZ: Yes. And we agree that the 20 Board should look at that in determining whether or 21 not that constitutes a de facto license amendment. We 22 believe it does not. In fact, the Petitioners have 23 not argued to contrary. Their arguments focus solely 24 on the restart actions and not on the CAL itself.
25
68 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 JUDGE BARATTA: But again I go back to the 1
plain language of the Commission's direction to the 2
Board which includes the process for resolving the 3
issues which includes then the restart actions.
4 MR. FRANTZ: We interpret that it would 5
include the staff's tracking actions, the staff's 6
restart approval and the staff's closure of the CAL.
7 And that's part of the CAL process.
8 This whole issue by the way of a de facto 9
license amendment only applies to staff actions. It 10 doesn't really apply to a licensee's actions. A 11 licensee's actions are judged per 50.59 and if we're 12 required to submit amendment. And it's a formal 13 amendment. It's not a de facto amendment.
14 JUDGE HAWKENS: I would agree with you 15 that the run of the mill case -- in fact the case that 16 I'm familiar with -- the de facto, it's a challenge.
17 A de facto license amendment challenge where final 18 agency action, final authorization by the NRC staff, 19 has already occurred.
20 MR. FRANTZ: Right.
21 JUDGE HAWKENS: On the other hand, if you 22 look at this as being unique and different in a de 23 facto license amendment process challenge, it seems to 24 me there's nothing that would barr this Board from 25
69 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 taking a look at the startup request and the terms and 1
the conditions and determine even absent final action 2
by the staff to determine whether your request, if 3
granted without a license amendment, would in fact be 4
a de facto license amendment.
5 MR. FRANTZ: First of all, we aren't 6
making a request. We are submitting application.
7 What we have done is just describe the actions we're 8
taking. The staff is going to say yes or no based on 9
whatever determinations it makes. But the staff is 10 not necessarily --
11 JUDGE HAWKENS: I understand. It's not a 12 formal request. You're engaged in the CAL process.
13 MR. FRANTZ: Yes. And then finally going 14 to the third question, even if you assume that restart 15 actions are included in the scope and if you apply 16 Section 50.59 to those actions, those actions do not 17 require a license amendment per Section 50.59.
18 (Off the record discussion.)
19 JUDGE BARATTA: This really relates to the 20 third area. You didn't know Judge Hawkens can read 21 minds. I hope you realize that because I was just 22 about to move into that area.
23 To me, there's a bridge here between the 24 third area and the questions that are posed in the 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 first and second questions which is that in a typical 1
CAL process or a CAL situation you return back to the 2
licensing basis. Is that correct? You fix the valve.
3 MR. FRANTZ: That's correct.
4 JUDGE BARATTA: You increase the training.
5 MR. FRANTZ: That's correct.
6 JUDGE BARATTA: Etcetera. Given what I 7
see in the material you provided and I'd like to 8
refer, for example, to there was a meeting on February 9
7th, a briefing on steam generator tube degradation.
10 Are you familiar with that?
11 MR. FRANTZ: Yes, I was there.
12 JUDGE BARATTA: Okay. And there are some 13 statement concerning the SONGS steam generator that 14 appear on pages 48 and 80. Are you familiar with 15 those?
16 MR. FRANTZ: I don't know the page 17 references offhand. I will add that that was a 18 meeting before the Commissioners on the general issue 19 of steam generator tubing integrity and degradation.
20 And it was not a meeting specific on San Onofre.
21 JUDGE BARATTA: Well, these were 22 statements by I believe MHI. And they said that "the 23 following two slides" -- that's page 48 at line 10 --
24 "show the improvement of the hydraulic conditions by 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 changing operating conditions. The graph shows the 1
quality. Power reduction show power reduction 70 2
percent, for example, would improve the steam quality 3
in SONGS steam generator by more than half. This 4
would bring the steam quality where it's in a range 5
and other steam generators fabricated by MHI."
6 And then "They are based on" -- on line 20 7
-- "the technical causes we can say in plane FEI,"
8 fluid elastic instabilities, "can be prevented by 9
reduced steam quality, reduced flow velocity and a 10 greater contact for AVBs" which I believe are the 11 anti-vibration bars.
12 MR. FRANTZ: That's correct.
13 JUDGE BARATTA: "...and the tubes." And 14 it goes on at page 80, line 13, "We have all sorts of 15 experience here at SONGS and as I said the three 16 factor flow and the quality, dryness, and also the 17 contact forces."
18 Am I drawing the wrong conclusion from 19 statements like this and from the figure that I asked 20 to be shown up before that in order to be able to 21 operate this generator and satisfy the tube integrity 22 you've got to change the power?
23 MR. FRANTZ: No. As we demonstrated in 24 our operational assessment at 100 percent power 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 submitted on March 14th, we can operate safely at 100 1
percent power. The graph showed that we do that for 2
at least 11 months. We're only at this point 3
proposing to operate for five months.
4 JUDGE ARNOLD: Can you operate it until 5
the mixed scheduled steam generator inspection as 6
defined in the steam generator program in the license?
7 MR. FRANTZ: That's correct. Right now 8
under Tech Spec 5.5.2.11, we're required to do an 9
assessment of how long we can operate and still meet 10 our steam generator tube integrity. We then need to 11 shut down under the program, do another inspection, 12 and then based upon those inspections do another 13 operational assessment for the next operating period.
14 And that continues on indefinitely.
15 The operational assessment only cover the 16 next operating period. And then a new operational 17 assessment is done for the next operating period.
18 JUDGE BARATTA: What is your normal cycle?
19 MR. FRANTZ: Approximately 18 months to 20 two years.
21 JUDGE BARATTA: Eleven months I think is 22 less than 18 months.
23 MR. FRANTZ: Yes, but we're only proposing 24 to operate for five months using this operational 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 assessment.
1 JUDGE BARATTA: But your analysis says 2
that you can't operate for a full cycle.
3 MR. FRANTZ: Yes. And we aren't proposing 4
to operate for a full cycle using that operational 5
assessment. We're proposing to operate for five 6
months using that operational assessment.
7 JUDGE BARATTA: But what I'm concerned 8
about is whether or not you can meet your tech specs.
9 And your tech specs say you should be able to operate 10 for a full cycle. And you're saying that you can't.
11 MR. FRANTZ: It does not say we have to 12 operate for a full cycle.
13 JUDGE HAWKENS: I thought that's what you 14 just said.
15 MR. FRANTZ: No, it says we have to be 16 able to operate for the next period, whatever that may 17 be. It may be five months. It may be for a full 18 reactor fuel cycle.
19 JUDGE ARNOLD: I'm looking right here at 20 your steam generator program 5.5.2.11(d)(1) says 21 "Inspect 100 percent of the tubes in each steam 22 generator during the first recycling outage following 23 steam generator replacement." That's right now.
24 MR. FRANTZ: Yes.
25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 JUDGE ARNOLD: The next one, "Inspect 100 1
percent tubes at sequential periods of 144, 108, 72 2
and thereafter 60 effective full power months." So I 3
would get from this that you have to go -- The next 4
scheduled inspection is 144 effective full power 5
months which seems to be much longer than one fuel 6
cycle.
7 MR. FRANTZ: Those are maximum periods.
8 We can always shorten those periods. In other words, 9
we can be more conservative, more restrictive, than 10 what the tech specs require us to be. Tech specs or 11 outer bounds.
12 JUDGE ARNOLD: You certainly can, but 13 you're telling me you can't do what the tech specs 14 allow you to do. Is that correct? To operate 144 15 months.
16 MR. FRANTZ: Those are I believe the 17 ISI/IST inspections, the ten year inspections. We 18 need to do operational assessments on a much more 19 frequent basis than that. We need to do it -- After 20 every time the inspections, we need to do an 21 operational assessment.
22 JUDGE ARNOLD: What does your license 23 allow you to operate before the next steam generator 24 tube inspection?
25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 MR. FRANTZ: The license itself does not 1
have any restrictions. Instead it has programmatic 2
requirements. The programmatic requirements are to do 3
an operational assessment for justifying a period of 4
time for operation until the next inspection.
5 JUDGE ARNOLD: This came right out of your 6
license and I don't see how this is not your baseline 7
requirement to do it at 144 months.
8 MR. FRANTZ: And we will. We will do the 9
IST at 144 months. That's different than the 10 inspections we have to do after each operating period.
11 JUDGE ARNOLD: So what's in your license 12 is not sufficient to guarantee the integrity of your 13 steam generator tubes.
14 MR. FRANTZ: No, I believe it is. And 15 again we cannot operate without an operational 16 assessment showing that we can operate for the next 17 period until we shut down for a new tube inspection.
18 And that's not 144 months.
19 JUDGE ARNOLD: Okay. Is that specified 20 somewhere in your license that you do an operational 21 assessment and determine each subsequent period?
22 MR.
FRANTZ: Yes. For example, 23 5.5.2.11(d), it says that we should have provisions 24 for steam generator or tube inspections and it refers 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 to the term "periodic" tube inspections. It does not 1
specify a precise period there. Typically, that 2
would, of course, be on a fueling cycle basis.
3 But we're being actually more 4
conservative. And we'll have five month period where 5
before we'll do our next steam generator tube 6
inspection.
7 And then if you go onto the next paragraph 8
the same section, it says that "the inspection scope, 9
inspection methods, inspection intervals, shall be 10 such to ensure that steam generator tube integrity is 11 maintained until the next steam generator tube 12 inspection."
13 That's the operational assessment that 14 we're referring to. The term is not actually used, 15 but that's the common industry terminology. And 16 that's what I'm referring to here. That's what we're 17 doing at the five month midcycle outage. We're doing 18 this periodic steam generator tube inspection. And 19 we'll then do our assessment to ensure for the next 20 operating period we're okay.
21 JUDGE ARNOLD: I'll start now on my 22 questions. My first real question for you is the same 23 question I asked for Petitioners having to do with 24 50.59 the eight criterion C2. To what extent do the 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 criteria have to be demonstrated to either be met or 1
not met?
2 MR. FRANTZ: We're required to do an 3
evaluation to show that the criteria are met. And 4
that would also by the way include the preliminary 5
step called screening or actually most of the changes 6
are screened out because they don't adversely affect 7
the design function.
8 JUDGE ARNOLD: But, for instance, the 9
Criterion 1 that says not more than a minimal increase 10 of a frequency. Do you go through a PRA type analysis 11 to say this doesn't increase more than such and such?
12 MR. FRANTZ: No, that's not typical in the 13 industry. Instead typically what's done is a more 14 qualitative analysis. In general, it's fairly 15 apparent from the face of the change that the change 16 will not adversely affect probabilities of accidents.
17 So that's more of a qualitative analysis without going 18 through an kind of quantitative PRA.
19 JUDGE ARNOLD: Okay. That almost sounds 20 like what Petitioner said. They point to features in 21 the generators that are significantly different and 22 extrapolate from there and say that that could lead to 23 a new form of accident. You say that your evaluation 24 looking at that change led to no or not more than a 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 minimal increase.
1 MR. FRANTZ: No. In fact, we exclude or 2
screen out these changes under this screening process 3
by showing that the changes -- our restart actions in 4
particular -- did not adversely affect the design 5
function as specified in our Updated Final Safety 6
Analysis Report. So we never get to those eight 7
criteria because we screen out the changes up front 8
because they don't have an adverse effect.
9 JUDGE ARNOLD: I'm actually asking these, 10 too. If we are using these as guidance, how absolute 11 are those criteria? Criterion 8 as I said earlier is 12 different. It's looking at have you used a different 13 analysis method. How much does an analysis method 14 have to change to be considered a departure from the 15 method?
16 MR. FRANTZ: First of all, as an 17 introductory question as part of the screening 18 process, we have to look at whether the methodology is 19 even specified in the FSAR. If the methodology is not 20 specified in the FSAR, then again you don't even have 21 to go through the 50.59 evaluation for that particular 22 change in methodology because it's not impacted under 23 the 50.59 process. So it's only changes in the FSAR 24 methodology that have to be looked at under the 50.59.
25
79 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 And then there are basically two different 1
ways to look -- let's assuming you are changing 2
something in the FSAR -- at it. One is a completely 3
new method. And if it's a completely new method, then 4
you don't need a license amendment if the NRC staff 5
has previously approved that method for this type of 6
approach or issue.
7 If it's a change in an element of a 8
previous method, we are okay. You don't need a 9
license amendment as long as the results are 10 essentially the same as the results using the original 11 method. If you can't meet any of those two criteria, 12 then you need a license amendment.
13 JUDGE ARNOLD: Most of my questions don't 14 fall under the three headings. So I'm just going to 15 start going through them.
16 On page six of your brief, you state 17 "Southern California Edison requested and obtained a 18 license amendment in 2009 for certain issues related 19 to SONGS Units 2 and 3 steam generator replacement, 20 e.g.,
changes to certain SONGS technical 21 specifications related to steam generator tube 22 integrity." Would you happen to know what those 23 changes in general were?
24 MR. FRANTZ: Yes. One change dealt with 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 the peak containment pressure. The replacement steam 1
generators have a slightly higher value than the 2
original ones. As a result, if there was some kind of 3
a break, you would have more energy being released 4
into containment and therefore a higher containment 5
pressure. So we sought a license amendment to reflect 6
the changes related to the containment pressure.
7 The other one dealt with the through-wall 8
fitting. I believe, Judge Arnold, it was you who 9
mentioned that right now there's a criterion of 35 10 percent. It used to be higher. And so we went from 11 a I think 40 something down to 35 percent.
12 JUDGE ARNOLD: So these are definitely 13 changes that wouldn't have been made if you were going 14 to the same exact design steam generator.
15 MR. FRANTZ: I believe that's correct.
16 JUDGE ARNOLD: Now going back to the early 17 days when you were contemplating steam generator 18 replacement and designing new steam generators, you 19 obviously saw that there were some changes to your 20 license necessary for these new steam generators. How 21 did you go about parsing out what was going to go 22 license amendment route and what you would do without 23 a license amendment?
24 MR. FRANTZ: Yes. A very procedural path.
25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 Again, the first step is to do a screening. And you 1
look at all the changes. And in the screening process 2
itself, these tech spec changes were identified. So 3
we knew we needed a license amendment for those tech 4
spec changes.
5 Most of the other changes, basically the 6
changes in configuration, were already screened out 7
because it was judged at the time that they had no 8
impact on the two design functions of the tubes, 9
namely to maintain directed coolant pressure boundary 10 and to transfer heat. So those configuration changes 11 were screened out.
12 There were also some changes in 13 methodology that were specified in the FSAR. We went 14 into a full evaluation for those changes in 15 methodology. And I mentioned before we determined 16 that they did not require a license amendment either 17 because they were previously approved by the staff for 18 their intended function or because they produced 19 essentially the same results as our original analysis 20 method.
21 JUDGE ARNOLD: I'm going to read you a 22 part of 50.59(c)(1) skipping the irrelevant part. "A 23 licensee may make changes in the facility as described 24 in the FSAR...without obtaining a license amendment 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 pursuant to 50.90 only if (1) a change to the 1
technical specifications incorporated in the license 2
is not required..."
3 Now back in 2007 you were sitting there 4
contemplating the replacement of steam generators.
5 And that replacement was going to require a change in 6
the technical specifications.
7 MR. FRANTZ: Yes.
8 JUDGE ARNOLD: So you decided we're going 9
to change the technical specifications in advance 10 before they need it so then the change in steam 11 generators wouldn't require a license amendment. Is 12 that correct?
13 MR. FRANTZ: No. It's all part of the 14 same process. You look at the entire replacement and 15 certain elements as I said you screen out. You can do 16 those without NRC approval. Other elements we need 17 the license amendment for and we sought those.
18 So we weren't seeking license amendment to 19 avoid a license amendment over here. We had already 20 made the determination over here that those changes 21 could be screened out. It was again a part of the 22 screening. We look at both questions at the same 23 time.
24 JUDGE ARNOLD: The next subject. In your 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 brief on page 9-10 you state before the problems in 1
Unit 3, "the tube to tube wear in Unit 2 was so minor 2
that it was not detected using normal eddy current 3
testing methods." If it had not been for the 4
experience in Unit 3, I get the impression that you 5
probably could have completed your refueling and gone 6
back up in power.
7 MR. FRANTZ: That's correct.
8 JUDGE ARNOLD: And I guess it's a good 9
thing Unit 3 happened in a strange, obscure sort of 10 way. Back in a recent brief to the staff with 11 Southern California Edison personnel, they explained 12 that "operation at rated power is currently or will be 13 outside the full range of normal operating 14 conditions." And are you familiar with that 15 discussion?
16 MR. FRANTZ: Your Honor, yes.
17 JUDGE ARNOLD: Could you explain that just 18 so that we get it on the record here?
19 MR. FRANTZ: I'll basically repeat the RAI 20 32 and the staff can speak for itself. But the RAI 32 21 basically refers to the language in the Tech Spec 22 5.5.2.11 that says we need to be able to meet our 23 performance criteria for power. And the staff then 24 asked for us to basically do 100 percent operational 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 assessment or otherwise show that we can operate at 1
full power.
2 In our response to that RAI, we took the 3
position that full power is not the same as rated 4
thermal power. Rated thermal power has a defined 5
meaning in the tech specs. And it's not used in 6
5.5.2.11.
7 But rather than fight this issue with the 8
staff, we gave them the 100 percent operational 9
assessment on March 14th so that even with Friends of 10 the Earth's interpretation we would meet that 11 technical specification in our license amendment once 12 the staff had raised a restart.
13 JUDGE ARNOLD: Okay. My understanding is 14 the words are "the full range of normal operating 15 conditions." Is it still your position that rated 16 power is not within the full range of normal operating 17 conditions?
18 MR. FRANTZ: Under our current licensing 19 basis, that's correct. We have made a formal 20 licensing commitment to limit power to 70 percent.
21 Therefore, we believe our licensing basis for the next 22 period which is the five month period is 70 percent.
23 And that's what full power is for that next period.
24 It may be different for some other period.
25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 JUDGE ARNOLD: Now it's the expression 1
"full range of normal operating conditions." That's 2
in a technical specification.
3 MR. FRANTZ: That's correct.
4 JUDGE ARNOLD: Is that a relatively new 5
technical specification or is it in --
6 MR. FRANTZ: Yes. That's basically 7
standard industry language. Basically almost all of 8
the PWRs have language essentially like that if not 9
identical to that. That's been around since I believe 10 the early 2000s.
11 JUDGE ARNOLD: Okay. Is there somewhere 12 a definition of full range of normal operating 13 conditions that makes it clear that if you have agreed 14 to reduce your range of operation that that is 15 excluded in the normal range?
16 MR. FRANTZ: I don't think it's quite that 17 clear. But I think if you look at some of the 18 industry guidance documents and some of the analysis 19 and reports that went into developing the standard 20 industry language, it indicates to us that a utility 21 is able to account for changes in its method of 22 operation when doing these operational assessments.
23 For example, if a licensee wanted to operate at a 24 lower temperature, you could account for that. If 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 they wanted to operate at lower pressure, you could 1
account for that in the operational assessments.
2 We also believe the same thing is true 3
with power levels. We believe we can also change 4
power levels and take into account those changes in 5
doing the operational assessments.
6 JUDGE ARNOLD: It seems to me to be a way 7
that you've made a tech spec be variable based upon 8
conditions that don't require a license amendment. Do 9
you know if that's been used by other utilities to 10 exclude something that would normally be considered 11 part of the normal range of operations?
12 MR. FRANTZ: I believe every utility has 13 to take into account changes in temperature and 14 pressure when doing operational assessments. Let me 15 confer with my expert just to make sure that's 16 correct.
17 (Off the record discussion.)
18 Just a slight, quick clarification.
19 Apparently, plants have done this, taken into account 20 changes in temperature and pressure. But the examples 21 we have are actually before the most recent version in 22 our tech spec language.
23 JUDGE BARATTA: In other words, there is 24 no precedent at this point.
25
87 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 MR. FRANTZ: That's as far as we know.
1 JUDGE BARATTA: Because looking at this 2
Palo Verde case, it seems directly analogous what 3
you're doing with the exception that instead of 4
changing the hot leg temperature you're changing the 5
power to achieve the same thing. And yet they felt 6
appropriate to submit a tech spec change at the time 7
that they reduced the power. That's what I find very 8
baffling here.
9 MR. FRANTZ: But I think it's interesting 10 at Palo Verde. They actually did restart at the lower 11 power level while that tech spec change was being 12 processed. So that again I think actually works in 13 our favor. We're allowed to operate in lower power 14 levels.
15 JUDGE BARATTA: Okay. Also had a no 16 significant hazards finding, too, when they submitted 17 the tech spec change.
18 MR. FRANTZ: Sure. And as I mentioned 19 this morning in my notification to the Board and 20 participants, if we go in for a license amendment, 21 we'll have a no significant hazards consideration also 22 for that.
23 JUDGE BARATTA: But we're in a different 24 ball game than we are now where you haven't submitted 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 a tech spec change and therefore there is no 1
adjudicatory process. Whereas, in that case, there 2
would be.
3 MR. FRANTZ: That's correct. And again we 4
don't believe just for operating at lower power levels 5
we need a tech spec change.
6 JUDGE BARATTA: I guess I still come back 7
to the situation that in all the CAL that I'm aware of 8
you're eventually able to get back to your operating 9
-- Excuse me -- consistent with your original design 10 basis. Based on what the gentleman from MHI said and 11 again we're referring back to that figure that's on 12 page 37 that I had shown earlier, you couldn't get 13 there from there. I just don't understand how you can 14 say that that you're within your design space because 15 now your design space is different.
16 MR. FRANTZ: First of all, the statements 17 by MHI were made in February. Of course, at that 18 point, we could not have our 100 percent operational 19 assessment that we submitted on March 14th. And as 20 that graph showed, we can operate safely for the next 21 operating period which is five months at 100 percent 22 power. We're using to operate at 70 percent power 23 even though the operational assessment shows that it 24 can operate at 100 percent power.
25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 JUDGE BARATTA: That statement is 1
completely consistent with all the information that's 2
been in the operational assessments, namely that the 3
velocities and quality that you have experienced at 4
100 percent power will cause fluid elastic 5
instabilities which will cause tube to tube wear.
6 MR. FRANTZ: We agree that they are 7
inconsistent. You're right in saying that our 8
previous operational assessments at 70 percent power 9
showed that, at least two of them showed that, we 10 would not have FEI.
11 The third one and this is the one done by 12 Intertek actually assumed that we would have FEI at 70 13 percent power.
14 JUDGE BARATTA: Right.
15 MR. FRANTZ: Our new updated operational 16 assessment by Intertek also assumes that we will have 17 FEI. And even making that assumption we show that we 18 can operate safely for 11 months without impacting 19 tube integrity.
20 JUDGE BARATTA: But what I'm seeing is a 21 change to your design basis which then to me requires 22 a license amendment.
23 MR. FRANTZ: We are not changing our 24 design basis. Our design basis still is that we need 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 to meet the, for example, the structural integrity 1
performance criteria which means that the tubes that 2
are in service have to, for example, be able to 3
withstand three times the normal operating pressure 4
differential. We meet that either under seven percent 5
or 100 percent.
6 Similarly, there's an accident induced 7
leakage performance criteria. We've shown we meet 8
that at 70 percent and 100 percent.
9 JUDGE BARATTA: For somewhere between five 10 to 12 months.
11 MR. FRANTZ: That's correct. And again 12 after that five month period we need to shut down, do 13 an inspection and do another operational assessment.
14 JUDGE BARATTA: But that's not consistent 15 with previous CAL actions which is where you were able 16 to operate to do something which would allow you to 17 operate the plant for the rest of its life barring 18 other problems.
19 MR. FRANTZ: As I indicated in Tech Spec 20 5.5.2.11(d)(1), if I recall the number correctly, what 21 we need to show is not that we can do an operational 22 assessment for the 40 year life of the steam 23 generators. We only need to do an operational 24 assessment for the upcoming operating period which in 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 our case is five months.
1 We don't need to show we meet the 2
integrity forever. In fact, if at some point we can't 3
meet the tube integrity criteria, we'll need to take 4
other action. And that may include shutting down the 5
plant and may entail taking corrective actions and may 6
entail replacement. But we can operate as long as we 7
have an operational assessment that shows we can 8
operate for the next period in question.
9 JUDGE BARATTA: I like in this situation 10 the first line that we saw, power instabilities at BWR 11 back in the early `90s, late `80s. Using your logic, 12 I didn't have to do anything. I didn't have to change 13 the power flow map or anything like that.
14 MR. FRANTZ: If we were to propose to 15 operate permanently at 70 percent power, we're not 16 proposing to do that yet. We may eventually decide to 17 do something like that. But if we were to propose of 18 a permanent operation, I think you're right. We would 19 probably need to seek a license amendment to change 20 our design basis.
21 But we're not proposing anything 22 permanent. What we're doing is we're evaluating 23 corrective action. We'll continue to do those 24 evaluations. At some point -- and we've committed to 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 do this in cycle 17 -- we will determine what our long 1
term corrective actions are and, if necessary, make a 2
permanent change to our licensing basis.
3 JUDGE BARATTA: I'm glad you raised that 4
point because I found at Yankee Rowe the staff was a 5
little bit disingenuous in citing Yankee Rowe, but not 6
citing the fact that in fact it was found to be a de 7
facto license amendment. In that case, the staff 8
said, "Well, you're thinking about decommissioning.
9 Maybe you can go ahead and do that." And then, of 10 course, they did do decommissioning.
11 And the court said, "Well, that was a de 12 facto license." Aren't we in that analogous situation 13 here?
14 MR. FRANTZ: No. In that case, the 15 license did not allow and organizations did not allow 16 the dismantling without a new application and NRC 17 staff approval. That was the de facto license 18 amendment.
19 JUDGE BARATTA: What you're headed towards 20 it seems is we're going to do this assessment. We're 21 going to find 70 percent power. Things don't look 22 took bad. This is hypothetically. And maybe you go 23 to 75 percent power. And then maybe go to 80 percent 24 power. But 80 percent power all of a sudden you start 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 to see more indications. Therefore I've got to get a 1
license amendment.
2 MR. FRANTZ: But if we were to propose to 3
operate indefinitely at 80 percent, I think that's 4
correct.
5 JUDGE BARATTA: I don't know of too many 6
reactors that people don't propose to operate to the 7
end of their life unless they're uneconomical.
8 MR. FRANTZ: Yes, and that's a different 9
issue. But all I'm saying is if we decide we're going 10 to make a long term, basically a permanent, change to 11 our licensing basis we would need to evaluate that and 12 most likely seek a license amendment.
13 But for this temporary period and that's 14 all we're focused on now, the next five months 15 basically, for that period, that's a temporary period.
16 We're allowed to operate at lower power levels for 17 that period.
18 JUDGE ARNOLD: On page 29 of your brief, 19 you state "The CAL provision on restart does not grant 20 any greater operating authority to Southern California 21 Edison." And very similar sentences are found 22 throughout your brief.
23 MR. FRANTZ: Yes.
24 JUDGE ARNOLD: Do you consider operation 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 of your current steam generators to be authorized at 1
any power level by your current operating license?
2 MR. FRANTZ: Yes. We now have an 100 3
percent operational assessment. We have a 70 percent 4
operational assessment. We believe we can operate up 5
to 100 percent power right now based upon that 6
operational assessment. We've chosen to operate at 70 7
percent power.
8 JUDGE ARNOLD: Are you familiar with 9
General Design Criterion 14 that has to do with 10 integrity of the primary pressure boundary?
11 MR. FRANTZ: Yes.
12 JUDGE ARNOLD: Okay. So that is one of 13 the design criteria for Edison. And the steam 14 generator tubes are part of that pressure boundary, 15 correct?
16 MR. FRANTZ: That's correct.
17 JUDGE ARNOLD: In Attachment 18 of your 18 brief, you provided sections of the SONGS FSAR and 19 Section 5.4.2.3.1 which is titled "Steam Generator 20 Tubes," describes the analysis performed to assure 21 that steam generators maintain their integrity.
22 MR. FRANTZ: That's correct.
23 JUDGE ARNOLD: It discusses an analysis 24 that basically results in your saying that up to 35 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 percent tube wear integrity will be maintained. Along 1
with that, you have the steam generator program and 2
you have technical specs about the tubes. And 3
together they basically show the General Design 4
Criteria for the steam generator tubes is met.
5 MR. FRANTZ: That's correct.
6 JUDGE ARNOLD: Can you say the same about 7
those analyses without now including a vibration 8
analysis, a tube to tube wear analysis?
9 MR. FRANTZ: We do have a tube to tube 10 wear analysis. That's part of the 100 percent 11 operational assessment.
12 JUDGE ARNOLD: And is that included 13 somewhere in the FSAR?
14 MR. FRANTZ: No. The FSAR does not, I 15 don't believe, discuss specific locations. For 16 example, we have retainer bar wear. We had ADB wear.
17 We have tube support plate wear. I don't believe the 18 FSAR goes into that level of detail.
19 JUDGE ARNOLD: Here is where that 50.59 20 Criteria 8 comes in. You used to show satisfaction of 21 General Design Criteria 14 with your steady state 22 stress analysis and a tube inspection program. You 23 now have to supplement that with additional analysis 24 that looks in detail at tube to tube. How is that not 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 a change in the analysis method?
1 MR. FRANTZ: Yes. I don't think it goes 2
into that level of detail in the FSAR in describing 3
analysis. I don't believe there's an reference to any 4
particular kind of wear. It's just wearing in 5
general.
6 And we show that with tube to tube wear as 7
part of our operational assessments which are part of 8
our tech spec steam generator program. We do meet our 9
structural integrity performance criteria.
10 JUDGE ARNOLD: In your original steam 11 generator, did you have to do a vibration analysis on 12 specific tubes to show integrity?
13 MR. FRANTZ: I'll need to check.
14 (Off the record discussion.)
15 We don't know the answer to that question.
16 JUDGE ARNOLD: Let me put it like this.
17 In light of the fact that according to your brief in 18 plane vibrations caused by fluid elastic instabilities 19 has never occurred in a U tube steam generator in a 20 nuclear power plant. Is it likely that you did that 21 type of analysis for the original steam generators?
22 MR. FRANTZ: I would think we did not have 23 a specific tube to tube wear analysis. That's 24 correct.
25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 And I might add, of course, that we do 1
have two operational assessments that show that at 70 2
percent power we will not have FEI. We actually have 3
one of the operational assessments performed by 4
Westinghouse that shows that FEI did not occur in Unit 5
2 even at 100 percent power. And indeed it was due to 6
close proximity of the tubes and the random vibration 7
rather than FEI.
8 JUDGE ARNOLD: My concern is you're 9
basically trying to demonstrate that a general design 10 criteria is met and you're using an analysis that has 11 never gone through the type of review or licensing 12 action. And that seems to me to be a definite change.
13 MR. FRANTZ: Yes, I think that there may 14 be some confusion here because we're talking about two 15 different analysis. We're talking about the analysis 16 in the FSAR which is the original design analysis.
17 I'm talking about the operational assessments which 18 are done periodically. And those are really different 19 assessments.
20 JUDGE ARNOLD: Essentially, you've found 21 that the original analysis in the FSAR is not adequate 22 to demonstrate that tube integrity is maintained. So 23 shouldn't this vibration now be incorporated in the 24 FSAR?
25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 MR. FRANTZ: I guess I would not put it 1
that way. What we have -- I think the analysis is 2
fine. There's nothing wrong with the analysis. What 3
we had is a degraded or nonconforming condition in our 4
steam generators where they did not perform per the 5
procurement specifications.
6 That's again an action or condition we 7
need to correct under Criterion 16 of Appendix B. But 8
again it's a degraded condition. And that's different 9
from showing some defect in the original analysis.
10 The original analysis was fine if we had simply 11 received steam generators that met our specification.
12 JUDGE ARNOLD: I want to probe a little 13 bit more into the analysis that you're depending on 14 here. Now we've already established that Unit 2 is 15 the first or Unit 3 is the first instance of in plane 16 vibrations due to FEI or nuclear power plants with U 17 tube steam generators. Do you know if U tube steam 18 generators in any other application that have had in 19 plane fluid elastic instability?
20 MR. FRANTZ: I don't know of any offhand.
21 I do know that there have been some experiments that 22 have been performed that showed the theoretical 23 possibility for in plane FEI. I'm not aware of in 24 plane FEI in non nuclear facilities.
25
99 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 There have been cases of FEI by the way.
1 Those were cases of out plane FEI which is a little 2
bit different than what we're talking about here.
3 JUDGE ARNOLD: I'm also aware of tests, 4
experiments, that have been done looking at parallel 5
flow and cross flow. But the U bend of a U tube is 6
kind of unique and different from the type of geometry 7
that's easily tested in the laboratory.
8 So do you know if there a large somewhere 9
database of experimental data having to do with FEI in 10 U tubes?
11 MR. FRANTZ: I don't know of any such 12 database. Again, we do have that one set of 13 experiments. We've had other vendors such as 14 Westinghouse that tried to induce in plane FEI in the 15 laboratory and weren't able to do so. So again it's 16 not a situation which was expected to occur.
17 JUDGE ARNOLD: So the concern I have is 18 you've got an analysis showing it's not going to be a 19 problem and you don't have much of a database to 20 support the theory behind that analysis. How would 21 you address that?
22 MR. FRANTZ: We do know that FEI is a 23 credit basically of three different parameters. One 24 is fluid velocity. The second is void fraction. And 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 the third is ADB content. We have done analysis that 1
even if you have zero ADB content looking at fluid 2
velocity and void fraction we will not have FEI at 70 3
percent power.
4 JUDGE ARNOLD: So basically you rely on 5
the fact that you tuned your analysis to be so 6
conservative that it accounts for the fact you don't 7
have a lot of data for comparison.
8 MR. FRANTZ: That's correct. I don't want 9
to imply that's the only thing we've done. There's a 10 region. The conditions inside the steam generator 11 vary from location to location. They're not uniform 12 throughout. There is a region in our replacement 13 steam generators that had high void fractions and 14 velocities. And basically you get plugged tubes in 15 that region, even though some of them did not have 16 very extensive wear. We've done that as a preventive 17 measure. So even if you have seen we have FEI, 18 presuming it would occur in that same localized 19 region. And we've taken care of the tubes in that 20 region as part of our corrective action.
21 JUDGE ARNOLD: Thank you.
22 JUDGE HAWKENS: I have one final question 23 for you, Mr. Frantz. If you go back to contention 24 admissibility and standing issue, is it your view that 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 we should review that issue first before reviewing the 1
de facto license amendment issue?
2 MR. FRANTZ: I think that's the only thing 3
that really makes sense. Otherwise, that issue is 4
just entirely moot.
5 JUDGE HAWKENS: Although that sequence 6
makes sense with the plain language used by the 7
Commission in saying "First look at the de facto 8
license amendment issue and if it is one, look at 9
standing and contention admissibility."
10 MR. FRANTZ: I think the Board has 11 flexibility and discretion as to what order it looks 12 at these two issues on. For example, it can look at 13 the first issue and decide there is no license 14 amendment involved. It doesn't even need to decide 15 the second issue.
16 We believe the reverse is also true. You 17 can decide there's no standing or contention 18 admissibility in reverse of the first issue. The 19 Board has discretion.
20 JUDGE HAWKENS: Understand. Then let me 21 ask you what is your position if we find in the 22 affirmative on the first issue? Namely it is de 23 facto license amendment. What would be the 24 consequence on the second issue? And what should the 25
102 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 consequence of that be or?
1 MR. FRANTZ: It's hard to figure out right 2
now because if the Board rules against on the first 3
issue, then presumably we'll be enlisting a license 4
amendment. And there will be a new Board established, 5
if necessary, if there is a request for hearing.
6 JUDGE HAWKENS: Okay.
7 MR. FRANTZ: And that would be a different 8
proceeding than this one.
9 JUDGE HAWKENS: All right. Do you have 10 anything else for us at this point?
11 MR. FRANTZ: No, I do not.
12 JUDGE HAWKENS: Thank you very much.
13 MR. FRANTZ: Thank you.
14 JUDGE HAWKENS: We've been going now for 15 about two hours and 15 minutes. I'm confident that we 16 can get this wrapped up before lunch if the parties 17 don't object. But I would propose a 12 minute break.
18 Would that be adequate for the parties to get up and 19 stretch and ventilate a little bit?
20 MR. ROTH: David Roth for the staff. Yes, 21 Your Honors.
22 MR. FRANTZ: Yes. Thank you.
23 MR. AYRES: That's fine, Your Honor.
24 JUDGE HAWKENS: All right. Let's recess 25
103 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 and let's return at 12:35 p.m. We're in recess.
1 Thank you. Off the record.
2 (Whereupon, a short recess was taken.)
3 JUDGE HAWKENS: Back on the record. We're 4
now prepared from the staff. Who will be making the 5
presentation on behalf of the staff?
6 MR. ROTH: If it may please the Board, 7
Catherine Kanatas is going to be doing the opening, 8
sir.
9 JUDGE HAWKENS: All right. Am I 10 pronouncing it correctly? Ms. Kanatas.
11 MS. KANATAS: That's correct.
12 JUDGE HAWKENS: Thank you. Would you like 13 to make a five minute introductory remark before we 14 launch into our questions, Ms. Kanatas?
15 MS. KANATAS: I would, Your Honor.
16 JUDGE HAWKENS: All right.
17 MS. KANATAS: Good afternoon, Your Honors.
18 My name is Cathy Kanatas and I represent the NRC 19 staff. As Your Honors noted in CLI-12-20, the 20 Commission did restate Friends of the Earth's claim 21 that the CAL process constitutes a de facto license 22 amendment.
23 The Commission then specified that the 24 question that the Board should focus on is whether the 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 staff's CAL constituted a de facto license amendment.
1 If the Board determines that the staff's CAL is a de 2
facto license amendment, then there will be a 3
proceeding instituted on the CAL regardless of 4
anything in the Edison's return to service plan and 5
regardless of whether a license amendment is needed to 6
restart either unit.
7 Whether Friends of the Earth would be a 8
party to that proceeding would depend on the Board's 9
determination of whether Friends of the Earth's June 10 petition to intervene met the Commission's contention 11 admissibility standards.
12 JUDGE HAWKENS: Or whether a subsequent--
13 I'm sorry to interrupt.
14 MS. KANATAS: That's okay.
15 JUDGE HAWKENS: Or whether a subsequent 16 petition submitted by them satisfied it.
17 MS. KANATAS: Correct. The Commission's 18 narrow focus on the staff's CAL is based on Commission 19 case law on de facto license amendments. That case 20 law, some of which the Commission refers in CLI-12-20 21 provides that only agency action can constitute a de 22 facto license amendment.
23 The staff's issuance of the CAL is the 24 only staff action that has been taken that is 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 reviewable by the Board. Therefore this Board like 1
the Seabrook board would only look at the CAL on its 2
face to make its determination. Here the Board must 3
determine whether the terms of the CAL granted Edison 4
any greater operating authority or otherwise alter the 5
original terms of the SONGS licenses.
6 Importantly, this de facto license 7
amendment standard comes from Commission and Federal 8
case law, not Section 50.59 of the Commission's 9
regulations. Section 50.59 provides a separate 10 standard for licensees to determine which changes to 11 their FSAR which is part of the plant licensing basis 12 require a license amendment.
13 The staff's brief in Karwoski affidavit 14 describe that each action in the CAL is allowed under 15 SONGS existing licenses. Therefore, the staff's CAL 16 is not a de facto license amendment.
17 Friends of the Earth actually appears to 18 agree with the staff on this point. On pages 2 and 3 19 of their June petition to intervene, Friends of the 20 Earth noted that the CAL only restates actions Edison 21 committed to take in a March 23rd submittal and did 22 not require Edison to submit a license amendment or 23 provide a 2.309 hearing opportunity.
24 This is the only discussion of the terms 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 of the CAL that Friends of the Earth provides.
1 Therefore Friends of the Earth does not indicate how 2
the terms of the CAL provided Edison additional 3
authority or otherwise amended the license. Instead 4
Friends of the Earth's brief focuses on Edison's 5
October 3rd return to service plan.
6 This focus is inappropriate. The plan was 7
prepared in response to the CAL, but it is not staff 8
action. The CAL itself specifies that the terms of 9
the plan are not effective until the staff has 10 completed its review and given written permission to 11 resume power operations. That's the CAL at Unit 2.
12 The staff has not completed its review of 13 Edison's proposed action or given written permission 14 to resume operation or taken any licensing action 15 associated with Unit 2. Therefore, the terms of 16 Edison's October 3rd return to service plan cannot 17 constitute a de facto license amendment.
18 First, the Friends of the Earth's claim 19 regarding Edison's return to service plan also raised 20 impermissible challenges. For example, challenges to 21 the 70 percent plan are impermissible in this 22 proceeding as they are challenges to 50.59 analyses.
23 FOE argues that Commission precedent on 50.59 24 challenges is dicta. That's at their reply brief at 25
107 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 16.
1 However, in both Yankee and SONGS, the 2
Commission held that challenges to 50.59 are only 3
properly raised in a 2.206 petition. Therefore, these 4
challenges as well as challenges to the 50.59 5
evaluations done to support the steam generator 6
replacements are improperly raised here.
7 Additionally, to the extent Friends of the 8
Earth's claims challenge the staff's conduct as it 9
performs its review, those claims are not properly 10 before the Board as they're outside the purview of a 11 licensing board. That's CLI-04-6, 59 NRC 62 at 74.
12 Finally, Friends of the Earth's challenges 13 that the 70 percent plan are not adequate or 14 appropriate are not relevant as the Board made clear 15 in its December 20th order at page four. Because 16 Friends of the Earth has not demonstrated that the 17 staff's March 27th CAL constitutes a de facto license 18 amendment, this Board should deny FOE's petition to 19 intervene. Thank you.
20 Dave Roth will be addressing your first 21 questions.
22 JUDGE HAWKENS: Thank you. To refresh the 23 audience's memory on what the first question or first 24 area of concern is it deals with the scope of the 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 referred issue.
1 Mr. Roth.
2 MR. ROTH: David Roth for the staff. It's 3
the staff's view that the scope of the referred issue 4
is just within the four corners of the CAL. This 5
morning we've heard a lot of discussion about 50.59.
6 Ms. Kanatas just discussed the 50.59 and the 7
Commission referral order is highlighted as something 8
that's not before the Board.
9 In the Commission's order itself they also 10 deny the discretionary period. If we look at Section 11 D I believe of the Commission's order -- Pardon me, 12 Section C, they denied the discretionary hearing 13 request.
14 Now let's read that in context with the 15 Commission's citation to Yankee which is footnote 10 16 in which the Commission notes that except for the 17 Commission determines that a discretionary hearing is 18 warranted that 2.206 is the only way to challenge a 19 50.59.
20 I know the Board has been considering what 21 the scope of the issues are. A lot of questions about 22 50.59 analyses. The staff, of course, is doing an 23 independent review of the 50.59 analyses. But I think 24 reading of what Commission actually referred is those 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 things are not before the Board. It's just what the 1
CAL is.
2 JUDGE HAWKENS: I understand your 3
position. How do you square that position with the 4
language that Commission used when it said Petitioner 5
argued that the CAL including the process for 6
resolving the issues raised in the CAL constitutes a 7
de facto license amendment. And it was this portion 8
of their argument that was referred to this Licensing 9
Board.
10 You had suggested you're looking at the 11 process. The CAL itself is recognized as a process, 12 not simply limited to that letter. The letter 13 triggers the process. And my understanding is that 14 the Commission wanted us to review that process.
15 MR. ROTH: Certainly so, Your Honor. I 16 don't see a conflict at all. It's looking at the 17 process which in this case is inspection and 18 enforcement and it's not looking at the technical 19 details behind any inspections and enforcement. So 20 the process by which the staff is reviewing and the 21 Commission has tasked the Board with verifying this is 22 not a licensing action is different than that actual 23 technical merits behind whether their 50.59 24 evaluations were or were not performed correctly. I 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 don't see a conflict between those.
1 JUDGE HAWKENS: Let me pose this 2
hypothetical to you. Let's suppose in Edison's 3
October return to service plan they indicated that 4
they had plugged 50 percent of their tubes. And the 5
rest of the return to service plan remained the same.
6 Would you have this Board ignore that and just focus 7
on the four corners of the CAL letter and say the CAL 8
letter, of course, viewed in isolation is not a de 9
facto license amendment and that would be the end of 10 the matter?
11 MR. ROTH: The task that the Board has as 12 determined is the staff's CAL. The action, the CAL 13 existed long before the restart plan. The CAL may 14 continue to exist until Unit 3 has some action taken 15 on it. The CAL might become modified.
16 The actions that SCE is suggesting they 17 may wish to do, whether they're compliant or not 18 compliant, whether tech specs --
19 JUDGE HAWKENS: For a second, I understand 20 that. But it would be clear, would you agree, that 21 the CAL process would implicate a license? It would 22 effectively be a license amendment proceeding if that 23 was included in the return in service plan. It would 24 require a license amendment for them to restart.
25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 MR. ROTH: The determination whether or 1
not it would be in compliance for their technical 2
specifications should they restart is again an 3
inspection and enforcement one. The determination as 4
to whether the staff by issuing a CAL that essentially 5
says "Show us what you're doing to meet your license" 6
that is the issue that's before.
7 If they say, "Here's what we're doing" and 8
in fact the staff disagreed, that's an inspection and 9
enforcement issue. If they say, "Here's what we're 10 doing" and as counsel for SCE said, "We're thinking 11 about a license amendment," then that again doesn't 12 change the nature of the CAL, doesn't change that it's 13 an inspection and enforcement tool. And the Licensing 14 action should they request one occurs separately.
15 JUDGE HAWKENS: So it's your position that 16 there cannot be a de facto license amendment until the 17 staff has ruled on that letter, on the CAL letter.
18 MR. ROTH: If I'm understanding your 19 question, it would be fact dependent. Now if the 20 staff somehow altered that authority at some point in 21 the future, then altering the authority in case law 22 can be a de facto license amendment.
23 But what we have before us right now is a 24 CAL that essentially says "Show us how in fact you are 25
112 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 meeting your requirements." And as Your Honors are 1
very aware, that is the intent of a CAL while in this 2
particular CAL. And Your Honors have repeatedly 3
discussed how CALs are normally resolved when the 4
licensee returns back to compliance with its license.
5 JUDGE HAWKENS: Can you cite any binding 6
precedent that would barr this Board from considering 7
the return to service plan to determine whether this 8
was a de facto license amendment proceeding?
9 MR. ROTH: This Commission told the Board 10 to consider the CAL. For its very unique situation, 11 I'm unaware binding, on point precedent that would say 12 the restart plan submitted --
13 JUDGE HAWKENS: Well, let's be clear.
14 They said as I understand their direction review the 15 CAL including the process for resolving the issues 16 raised in the CAL. To me that suggests this is not 17 solely -- The former de facto license amendment cases 18 dealt with de facto license amendment after the 19 amendment had been implemented. This seems to be a de 20 facto in the nature of a de facto license amendment 21 process case as I understand the Commission's referred 22 issue.
23 MR. ROTH: And even if one were to read it 24 very broadly that way, if we examine the process, the 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 process is inspections and enforcement. There are at 1
least two inspection reports that are on the streets 2
covering the AIT, augmented inspection team. The 3
augmented inspection team report looked into the 4
issues associated with the steam generator program.
5 The augmented inspection team report and its 6
supplement directly discussed they're doing 7
inspections through the CAL or in accordance with the 8
CAL.
9 Again, even if you were to say the whole 10 process is the current inspection and enforcement 11 activities, there remain inspection and enforcement 12 activities. Nowhere is there something where the 13 staff is saying "Do you mean now right at this power 14 instead of that power? This tech spec has changed 15 from this to that." Those actions simply don't exist 16 and the CAL does not cause them to exist.
17 JUDGE HAWKENS: And so it is your position 18 again, getting back to my hypothetical, that if the 19 return to service plan submitted had in it a term that 20 clearly required a different tech spec or a change to 21 the license it would not be within this Board's 22 authority in resolving the referred issue to identify 23 that and say essentially, "This is a de facto license 24 amendment process based on the return to action plan."
25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 Now it may be that the staff ultimately 1
would direct a license amendment. But the salient 2
point is at that point there was a material before the 3
staff submitted by the Licensee that turned this CAL 4
process into a de facto license amendment process 5
until the agency acted upon it one way or the other.
6 MR. ROTH: I would disagree with that, 7
Your Honor. And that's your word. And here's further 8
explanation on that. If the Licensee were to propose 9
to do something counter to its technical 10 specifications and the staff were aware of the intent 11 to go against its technical specifications or other 12 portions of its license, that doesn't mean it suddenly 13 becomes a license amendment. That clearly remains an 14 enforcement issue.
15 If the plant tells us, especially if they 16 tell us in some letter "We're going to do this" and 17 the staff says, "My gosh, the tech specs say they 18 can't do that."
19 JUDGE HAWKENS: I understand. That's the 20 routine. The run of the mill case. This is not that 21 routine, run of the mill case. This is a case, a very 22 unique case, where the Commission took the issues 23 presented to it very seriously.
24 As I told Mr. Frantz, in my view if the 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 Commission just wanted the Board to limit its review 1
to the four corners of that letter, that's something 2
that the Commission could have done and would have 3
done rather than in my view expending unnecessary 4
resources. I think there was more that the Commission 5
wanted done. It required looking beyond the four 6
corners of that to look at the return to service plan 7
and to at some point make a determination on whether 8
the process itself rather than a very short letter 9
that triggered a
lengthy and complex process 10 constituted a de facto license amendment.
11 MR. ROTH: I believe that Your Honors have 12 sufficient briefs and behalf of the staff and all the 13 parties thank you for the compliment on the briefs 14 earlier. But I believe Your Honors have sufficient 15 briefs that have described the process, described the 16 process at length, showing how it goes through the 17 enforcement history, the enforcement manual, how CALs 18 came into be, what SONGS is currently planning on 19 doing, what FOE's position is.
20 Although your question goes to just the 21 four corners of the CAL, that's the staff's action.
22 But Your Honors have before you far more.
23 If the Commission wanted you to wait until 24 the staff made a decision to say was that decision a 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 CAL, the Commission could have done that. The 1
Commission had before it a request to stay. They 2
denied that request to stay.
3 The Commission thought at that point in 4
time there was sufficient information. These 5
additional RAIs for instance that were asked earlier 6
this week, those were not before the Commission at the 7
time.
8 If the Board elects not to make a decision 9
as to whether the CAL itself is a de facto license 10 amendment until the entire process is done, if 11 everything under the CAL, then looking at the CAL that 12 addresses Unit 3 as well. Counsel for SCE has 13 indicated they're not certain when they're going to do 14 something with Unit 3. So the Board would never be 15 able to make any rulings whatsoever if one took that 16 view.
17 JUDGE HAWKENS: If one took the view that 18 it was going to await final action by the NRC staff.
19 MR. ROTH: Exactly. Then the Commission 20 provided the Board an open end to review essentially 21 independently acting as though the Board were the 22 staff looking at the 50.59s rather than saying, "What 23 did the staff do?"
24 And the Commission said specifically, 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 "What was the CAL? Was the CAL a de facto license 1
amendment? And, if so, did FOE provide admissible 2
contention?"
3 JUDGE HAWKENS: At the end of the day a de 4
facto license amendment involves either a licensee 5
erring in its 50.59 analysis and/or the NRC staff 6
similarly committing error in not recognizing that it 7
requires a license amendment.
8 MR. ROTH: If I may interrupt, Your Honor.
9 I think I would disagree with the first part. The de 10 facto license amendment is not a licensee violating 11 its regulations. A licensee does not modify its 12 license by committing a violation.
13 JUDGE HAWKENS: I'm with you. And that's 14 not an essential part. I was saying it can be the 15 first step in what ultimately is a de facto license 16 amendment. If the licensee makes a 50.59, determines 17 it can take action without a license amendment and if 18 the NRC staff would ultimately approve that.
19 But let's put the 50.59 analysis and say 20 it's staff ultimately erring in not recognizing that 21 a license amendment was required. It seems to me 22 rather than waiting for that to happen one should 23 consistent with 189(a) of the Atomic Energy Act which 24 gives rise to a hearing opportunity. When a process 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 for amendment is occurring, you shouldn't wait until 1
the amendment already becomes effective when you've 2
denied the public the right under 189(a) to 3
participate or an opportunity to participate through 4
a public hearing. Rather, if you can discern error 5
either in a 50.59 analysis -- and let's say it is a 6
50.59 analysis error -- if you can say in our view 7
this does require a license amendment, that would be 8
the better course and give the opportunity for an 9
adjudicatory hearing before the amendment becomes de 10 facto becomes effective.
11 Let me try to make that a question. Don't 12 you think that it's more consistent with 189(a) to say 13 this process is a de facto license amendment process 14 de facto license amendment rather than waiting until 15 the end when there could be a de facto license 16 amendment in error already made? Shouldn't we be 17 looking at it that way and give the public the 18 opportunity to have their hearing rights during the 19 process if we recognize plainly that this implicates 20 50.59 licensing requirements?
21 MR. ROTH: The Commission has clearly 22 tasked the Board with assuring that the staff's CAL 23 was not a license amendment, de facto or otherwise.
24 And the situation that you're hypothesizing if you're 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 saying a 50.59 violation, an erroneous 50.59 would 1
provide hearing opportunity rights. That's simply not 2
how the Atomic Energy Act is set up. It's not --
3 JUDGE HAWKENS: Not normally. But here 4
when the Commission has referred an issue that directs 5
us to look at the CAL process then it's not a direct 6
attack by Petitioners on the 50.59. But it's part and 7
parcel of the referred issue, isn't it?
8 MR. ROTH: The referred issue is did CAL 9
give correct actions, show us how the problem in Unit 10 3 isn't going to affect Unit 2, don't change modes 11 into mode 2 on Unit 2 until you're sure that it's 12 fixed and we've validated through inspection and 13 enforcement that it's fixed.
14 JUDGE HAWKENS: That's your initial 15 directions. That's correct. Now we have a lot of 16 action since then. We have a return to service plan.
17 And if we look at that and make a determination that 18 this CAL process requires a license amendment, you're 19 saying this Board should ignore that.
20 MR. ROTH: If the Board believes that the 21 steps proposed by the Licensee are in violation, the 22 Board should certainly bring that to the staff's 23 attention. But the inspection and enforcement action 24 that you're hypothesizing that if the Board identifies 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 if they do X they're in violation with their tech 1
specs, that does not change the fact that the staff 2
has not said, "You're authorized to do X."
3 JUDGE HAWKENS: Understand that. So in 4
our analysis -- and this is purely hypothetical -- if 5
we were to find that their return to service plan did 6
require a license amendment, it's your view that under 7
the referred issue we should simply express that view, 8
but conclude it is not a de facto license amendment 9
process.
10 MR. ROTH: If the Board believes that the 11 50.59s done by the staff, or pardon me, reviewed by 12 the staff, performed by SCE, were incorrect, the 13 Commission in the SONGS referral memo itself has again 14 indicated that's not within the Board's review.
15 So if the Board believes that the Licensee 16 is in violation of a regulation because they 17 incorrectly performed a 50.59 violation, that is not 18 the question that's before the Board. The 19 Commission's footnote made clear that unless it's 20 provided in a discretionary hearing that the 50.59s 21 could be challenged by a 2.206. And the Board in the 22 same order said, "There's no discretionary hearing."
23 JUDGE HAWKENS: Again, if a member of the 24 public wants to challenge a 50.59, that's correct.
25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 They do it through 2.206.
1 MR. ROTH: That's correct.
2 JUDGE HAWKENS: The Commission has not 3
referred to us the opportunity for the Petitioners to 4
launch a direct attack on 50.59. But they've directed 5
us to consider whether I believe this is a de facto 6
license amendment process. And to do that, it doesn't 7
seem to me that we're barred from using 50.59 as 8
guidance in determining whether the return to service 9
plan requires a license amendment.
10 MR. ROTH: Here is where I think that 11 analogy does not work properly. The 50.59 activities 12 are the Licensee's activities. The return to service 13 plan is the Licensee's proposal. As Ms. Kanatas 14 emphasized in the opening, the staff's action other 15 than the inspection reports that have been issued, 16 there are some outstanding, unresolved items as well, 17 is the issuance of the CAL. The staff have not done 18 any other CAL.
19 If a licensee incorrectly performs a task, 20 be it a 50.59, a maintenance activity, an operations 21 activity, that simply does not create a de facto 22 license amendment. If the staff in an inspection 23 report review and document that the licensee did 24 something incorrectly, that does not make it a de 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 facto license amendment.
1 Here the CAL is saying give us information 2
for inspections. The staff have published two 3
inspection reports at least that discuss information 4
from the CAL. That does not create the information or 5
does not cause the information to become a de facto 6
license amendment.
7 JUDGE HAWKENS: The Commission is not 8
barred from referring to us an issue that requires us 9
to look at the process and determine whether that's a 10 de facto license amendment process, is it?
11 MR. ROTH: And the process that the staff 12 is using is outlined clearly in the enforcement 13 manual. It indicates that this is CAL with routine 14 enforcement activity. From the terms of looking at 15 the process, you're quite right. That's the process 16 the staff is using.
17 If we're looking at the process, that is 18 the process. If we think we have a concern here, we 19 called you on the phone. We told you, "Here are the 20 things we think that need to get done before you 21 restart."
22 The Licensee said, "Yes, we agree."
23 We sent back a letter that says, "We're 24 confirming these are the things you think you need to 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 do before you restart."
1 A couple months later, the Licensee sends 2
in information saying, "Hey, here's what we've done.
3 We think this satisfies the concern."
4 Now unless the staff say, "Why, yes.
5 Here's a change to your license," that does not create 6
a licensing action. That instead is just inspection 7
and enforcement 8
JUDGE HAWKENS: So, Mr. Roth, is it your 9
view that we should limit our review to the four 10 corners of that letter, the CAL letter? And if we go 11 beyond that, we can't make a final ruling until the 12 NRC staff has taken final action on the CAL for Unit 13 2 and then Unit 3.
14 MR. ROTH: If one were to take the very 15 broad view that the Board is taking, I think that 16 would be the only logical conclusion.
17 JUDGE BARATTA: But it's the view that the 18 Commission has told us to take because it references 19 the CAL as well as the process.
20 MR. ROTH: And the reference to the CAL 21 process can be read as "Well, what is the staff doing?
22 Is the staff changing policy? Is the staff changing 23 some regulation or?"
24 JUDGE BARATTA: What the Applicant has 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 proposed as part of their CAL, it's something that 1
would change their design basis. It's the old 2
expression about if it walks like a duck and quacks 3
like a duck, then it is a duck.
4 Now if they come in and propose something 5
that is in essence a change to the design basis, then 6
isn't that a license amendment request and therefore 7
becomes a de facto license amendment process?
8 MR. ROTH: No, Your Honor. Under 50.90 if 9
they desire to actually make a license amendment, they 10 will make a license amendment request. As counsel for 11 SCE has indicated, SCE is --
12 JUDGE BARATTA: Well, that's something 13 other than a de facto license amendment.
14 MR. ROTH: The de facto license amendment 15 would have to originate with the NRC, not with the 16 utility. If the utility is deciding "We wish to do 17 something" and the same "Oh gosh, we think we can do 18 it" and the staff is silent, perhaps that's a 19 violation. Perhaps it's not. But unless the staff 20 has actually taken some action, then it's not a de 21 facto license amendment.
22 JUDGE BARATTA: But by accepting the CAL 23 for review, you took an action. You initiated a 24 process. That is an action.
25
125 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 MR. ROTH: The issuance of a CAL is an 1
action. The letters that are sent in by SCE are in 2
response to inspection activities, not in response to 3
4 JUDGE BARATTA: But you've taken an 5
action. Yes or no?
6 MR. ROTH: By receiving letters, no.
7 That's not taking an action.
8 JUDGE BARATTA: No, by initiating, by 9
responding to that request. You issued a CAL letter.
10 Did you or did you not?
11 MR. ROTH: Yes, we did.
12 JUDGE BARATTA: Is that not an action?
13 MR. ROTH: That is an action I would say.
14 JUDGE BARATTA: Thank you.
15 JUDGE ARNOLD: I have a question. The 16 actual phrase in the CLI is "The Confirmatory Action 17 Letter issued to SCE including the process for 18 resolving the issue raised in the letter." Is the 19 staff able to resolve the issue raised in the letter 20 without any participation from Southern California 21 Edison?
22 MR. ROTH: If I am understanding your 23 question, is the staff able to resolve its inquiry of 24 show us what happened on Unit 3 and why it won't 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 happen on Unit 2 without their participation, then no.
1 JUDGE ARNOLD: Okay. So the process would 2
involve some Edison participation. It seems to me 3
that Edison participation has also been referred to 4
the Board.
5 MR. ROTH: In the sense that the Board is 6
looking to see what is Edison doing, certainly so. In 7
terms of getting into nitty-gritty details about is a 8
particular 50.59 analysis good or bad, did Edison do 9
something technically correct or not, those are areas 10 that are outside the purview of the Board as referred 11 by the Commission. Those remain the inspection and 12 enforcement activities currently ongoing by the staff.
13 JUDGE HAWKENS: If we reviewed the return 14 to service plan as de facto license amendment request, 15 would that transform the CAL process into a de facto 16 license amendment process if you're considering a de 17 facto license amendment request?
18 MR. ROTH: No, that would not because it's 19 not a de facto license amendment request. It's them 20 trying to show how they're meeting their current 21 requirements. Counsel for SCE says as argued earlier 22 that SCE believes they are meeting their requirements.
23 The staff have a number of outstanding 24 RAIs. They staff are still looking into this area.
25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 But again, if utility correctly or incorrectly does 1
something does not cause whatever the utility did to 2
become subject to a hearing. That does not create an 3
amendment all by itself.
4 By contrast, if the staff were to change 5
a policy, change a rule improperly, then as courts 6
have held that becomes a de facto license amendment.
7 But that's not the case here.
8 JUDGE HAWKENS: I understand your argument 9
that it is consistent with past precedent. But I 10 would also observe that past precedent does not 11 mandate that we take so limited a view in this case in 12 my view, Mr. Roth.
13 MR. ROTH: I understand, Your Honor.
14 JUDGE BARATTA: Let me just -- I just want 15 to make one point clear. As I understand this 16 question of de facto license amendment, the courts 17 have said that they are fact dependent. Is that not 18 correct?
19 MR. ROTH: Correct.
20 JUDGE BARATTA: So the two cases that you 21 cited could have totally different facts which led the 22 courts to conclude they were not de facto license 23 amendments than from this case. Is that correct?
24 MR. ROTH: That is correct. They were 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 different factual situations.
1 JUDGE HAWKENS: Let's assume that this 2
Board were to conclude that we were looking at the 3
entire process including the return to service plan to 4
determine whether this constitutes a de facto license 5
amendment process. Edison indicated that if that were 6
the case then it would be permissible to be guided by 7
the 50.59 factors.
8 It wasn't clear to me from reading your 9
brief whether you thought we could use the 50.59 10 factors as guidance under those circumstances. What's 11 your position?
12 MR. ROTH: Well, Your Honors, our position 13 is actually going to be presented by Maxwell Smith who 14 is ready for questions two and three.
15 JUDGE HAWKENS: All right. One second, 16 Mr. Smith. I just want to make sure my colleagues 17 don't have any further questions for you.
18 JUDGE ARNOLD: Sure. Certainly. I 19 haven't started yet.
20 JUDGE HAWKENS: This is on the first.
21 JUDGE ARNOLD: Well, I don't really go 22 along with your concerns. Mine are pretty much 23 independent. So I can wait or I can go.
24 JUDGE HAWKENS: I just want to make sure 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 that while Mr. Roth is up here.
1 JUDGE ARNOLD: He's the person I would 2
want to ask.
3 JUDGE HAWKENS: All right.
4 MR. ROTH: Thank you, Your Honor.
5 JUDGE ARNOLD: On page 10 of your brief, 6
you state "Specifically, courts have found that 7
Commission actions that change a licensee's authority 8
under its license without formally amending the 9
license are effectively license amendments." And then 10 on the next page you say, "If the NRC approval does 11 not permit the licensee to operate in any greater 12 capacity than originally prescribed and all relevant 13 safety regulations and license terms remain 14 applicable, the NRC approval does not amend the 15 license."
16 Now there's two differences here. One is 17 a court decision. The other is a Commission decision.
18 The court decision says if it changes the license 19 authority; whereas, the Commission says if it 20 increases the operating authority.
21 Which is it? Is it a change in the 22 operating authority or an increase in the operating 23 authority? Or is a decrease in operating authority 24 also a license amendment?
25
130 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 MR. ROTH: An increase is a change.
1 Certainly, if the staff were to modify any portions of 2
the tech spec, maximum thermal power for instance, 3
that would be a change.
4 JUDGE ARNOLD: So if you decrease that, 5
it's a change. And that could be a license amendment.
6 MR. ROTH: Certainly.
7 JUDGE ARNOLD: Okay. 10 CFR 50.36 8
describes the various types of technical 9
specifications required to be part of the license.
10 Furthermore, it describes the purpose of each type of 11 technical specification.
12 For instance, for safety limits, the 13 section states "Safety limits for nuclear reactors are 14 limits upon important process variables that are found 15 to be necessary to reasonably protect the integrity of 16 certain of the physical barriers that guard against 17 the uncontrolled release of radioactivity."
18 Now if in the course of operation it is 19 found that some technical specification is such that 20 it does not achieve its intended purpose, for 21 instance, a protecting against release of radioactive 22 material, is there a requirement to modify the 23 technical specifications such that its intended 24 purpose is achieved?
25
131 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 MR. ROTH: The staff actually published 1
administrative letter in 98.12 I believe the number 2
is. It may be 98.10, but 98.12 is what jumps to mind 3
that essentially says if a utility becomes aware that 4
it has a nonconservative, technical specification, 5
they take administrative control of that specification 6
and they submit the appropriate licensing action 7
afterwards.
8 Now in terms of what if you are 9
hypothesizing a safety limit which are in Section 2 of 10 the tech specs but the safety limit is not being 11 protected by different technical specification. I 12 would say that would be fact dependent, but the 13 expectation would be that the utility would follow the 14 most conservative actions which may include shutting 15 down or removing the mode that would be causing the 16 problem.
17 JUDGE ARNOLD: Next question. At the end 18 of the CAL process, if SONGS is given permission to 19 operate with a promise that they will limit power to 20 70 percent, is that 70 percent power limit an 21 enforceable limit?
22 MR. ROTH: Your Honors, that would be a 23 very fact dependent situation. As you know, the 24 staff are currently reviewing SCE's restart proposal.
25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 And it would have to depend on what sort of promise 1
what it's referring to.
2 There is a rule of thumb the licensee 3
actions or the license themselves, if there is a 4
commitment they made to do something and the nature of 5
the commitment, the fact that the staff are still 6
looking into this, that's just too fact dependent and 7
speculative there. I'm sorry, Your Honor.
8 JUDGE ARNOLD: So the answer is maybe.
9 MR. ROTH: Yes. Your question is 10 essentially if they did this would this be a violation 11 and I'm not going to respond to that. There's ongoing 12 inspection activities.
13 JUDGE ARNOLD: Okay. My next question is 14 and I'll admit it's hypothetical and you may not be 15 able to give me an answer, but even speculation might 16 help. And I'm trying to really understand how much of 17 a problem is this with the steam generators.
18 Let's go back to 1981 and Southern 19 California Edison is waiting to get an operating 20 license for Unit 2. Now assume at this time that a 21 combustion engineer comes out with a notification that 22 the original steam generators had some sort of design 23 flaw such that they were prone to fluid elastic 24 instability that could lead to in plane tube vibration 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 and accelerator wear that could fail tubes in a time 1
less than one fuel cycle.
2 Under that hypothetical circumstance, is 3
it likely that the NRC would just go ahead and grant 4
the original operating license? Or would they want to 5
see some resolution to that problem first?
6 MR. ROTH: Well, Your Honor, your 7
hypothetical has a lot of facts in it. And the facts, 8
there may be information I'm unaware of relative to 9
those. However, if there's a construction defect 10 that's required to be reporting, certainly the staff 11 would address that construction defect. Certainly, 12 the staff would not ignore a report that says that 13 certain tubes are defective.
14 Moving it forward to the current situation 15 with the current technical specifications, that's the 16 issue that's present. Is the Licensee meeting or not 17 meeting its technical specifications? As you know, 18 the staff have a number of questions that are out.
19 Counsel for SCE has indicated their position on them.
20 But the staff's reviews are ongoing as to 21 whether the Licensee is currently meeting its license.
22 And the issue with the CAL is "Show us how you're 23 meeting your license." And again the CAL's request of 24 show us how you meet your license is not amending the 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 license, not changing it, not saying ignore a problem 1
with fluid elastic instability that shows up, 2
according to SCE, above 85 percent power.
3 It's instead "Show us how you meet your 4
current full power operations." So while trying to 5
answer your hypothetical, I hope I'm being helpful.
6 JUDGE ARNOLD: My hypothetical was 7
designed to reflect what's currently going on with the 8
steam generators. The fact is that Edison repeatedly 9
depends upon the fact that they are within the limits 10 of their current license.
11 And I'm just trying to find out how much 12 comfort I should get from that. If they didn't have 13 that license, would they have gotten it if their steam 14 generators were suspected of having this problem?
15 MR. ROTH: Certainly, the staff would be 16 in issuing an original license following 10 CFR 50.57 17 and making the appropriate safety findings. With 18 respect to whether or not Edison's currently being in 19 its license, in the current mode, the staff would not 20 issue a particular public concern on this. The 21 question is if they restart -- I think that's your 22 hypothetical -- would they without any other changes 23 meet the license? The staff would open RAIs on that.
24 Now I will segue a little bit. Earlier 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 this
- morning, Your Honors were asking about 1
definitions of full power. If you look at Attachment 2
10 of the staff's brief which is NEI 97-06, you'll 3
actually find a series of definitions in Appendix B.
4 Those are all related to what's called TSTF-449 with 5
the steam generator program that all the utilities 6
have and all the PWRs have adopted.
7 JUDGE BARATTA: But I really have a 8
problem with you using that because I've been looking 9
at the FSAR while you're been talking just see how it 10 refers to things. And I'm sorry. It continually 11 refers to 100 percent power and things like that at 12 the 35 whatever. And it also talks about periods as 13 24 months or a cycle and such.
14 So I see a big disconnect between what I'm 15 hearing you say and what the FSAR says. And there's 16 no doubt the FSAR is part of the license, correct?
17 MR. ROTH: Correct. And, Your Honor, 18 there should be no disconnect. The intent of the 19 reference is not to indicate that the staff's opinion 20 is that SCE's view is correct.
21 JUDGE BARATTA: That's what you just said.
22 MR. ROTH: No. What I said, Your Honor, 23 was the definitions are provided there. SCE was 24 unaware of where the definitions are. The definitions 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 of full power which -- and I'm doing this from memory.
1 Perhaps co-counsel may be able to pull it up from my 2
computer. But my computer is locked. But the 3
definition of full power refers to the maximum steady 4
state power.
5 JUDGE BARATTA: And that's what's in the 6
FSAR.
7 MR. ROTH: Exactly.
8 JUDGE BARATTA: Okay.
9 MR. ROTH: But again the staff opened 10 questions to SCE and SCE has responded RAI 32. The 11 staff are still reviewing that. So I'm not going to 12 say the staff is agreeing or disagreeing with it.
13 But in terms of where there is a 14 definition, I can point you to 97.06. And it's 15 actually on the PDF that's attached to our filing.
16 It's page 254 of 619 for ease of pulling up. And that 17 does provide a definition.
18 JUDGE BARATTA: I'm done.
19 (Off the record discussion.)
20 JUDGE HAWKENS: What other topic are you 21 prepared to address, Mr. Roth?
22 MR. ROTH: I'm here for whatever. Mr.
23 Smith is well prepared to answer any of these 50.59 as 24 you know in the staff's view are beyond what the Board 25
137 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 should looking at. But nonetheless he's here.
1 JUDGE HAWKENS: All right. Why don't you 2
remain at the podium then for a few more minutes.
3 JUDGE ARNOLD: Are you sure that we don't 4
want to question somebody who is a little less slick 5
with the answers?
6 (Laughter.)
7 MR. ROTH: Am I supposed to say thank you?
8 I'm not certain.
9 JUDGE BARATTA: I was surprised when you 10 referenced Yankee Atomic that you didn't notice that 11 I didn't note that it was in fact ruled as a de facto 12 license amendment. I was wondering why that didn't 13 come up in your brief.
14 You referenced Yankee Atomic in your 15 brief. If you'd like I can find the cite to that.
16 Let's see. NRC Staff Brief January 30th, page 45 I 17 believe has a reference to the Yankee. It's reference 18 227, CLI 94-3.
19 But when I actually go and look at when it 20 was challenged, it turns out it was ruled as a de 21 facto license amendment. And that's 59 -- let's see.
22 Let me get that right. Sorry.
23 MR. ROTH: It's subsequently 59(f).
24 JUDGE BARATTA: And I was curious as to 25
138 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 why you didn't mention that in your brief and why --
1 See. I'm looking for what distinguishes this case 2
from that case.
3 MR. ROTH: The distinguishing there is 4
that in Yankee Rowe the NRC had changed its policy.
5 The change in the policy which I believe was initiated 6
through rulemaking allowed a licensee to start to 7
remove major components without actually amending its 8
license. And the court had ruled that an act of 9
license amendment was required before this.
10 By contrast here, there is no change in 11 policy. The staff's CAL is following the long 12 established policy of confirmatory action letters and 13 they've been part of the enforcement manual since 14 before the NRC was the NRC.
15 JUDGE BARATTA: Yes. Getting back to what 16 CALs in the past have done, as far as I'm aware, it's 17 enabled you to go back to operate within your design 18 basis. And there is some question here as to whether 19 or not that's going to be the result here.
20 MR. ROTH: And the staff has a variety of 21 questions on that very topic and are inspecting to 22 ascertain whether or not SCE would be meeting its 23 license if they took the actions that they propose to 24 take. So we fully agree. That's what a CAL is for.
25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 A CAL is to assure that whatever the 1
issues are they are resolved. If the resolution 2
requires SCE to submit a license amendment, then 3
should they wish to operate within the bounds of the 4
license they would have to amend it. If the 5
resolution of the CAL, the staff is satisfied that 6
SCE's actions under the restart plan would in fact 7
meet their current license, then no license amendment 8
on that point would be necessary.
9 But as Your Honors are aware, the staff 10 have a variety of questions still and have made no 11 determination as to whether or not SCE's actions would 12 meet their license. But contrast in the inspection 13 reports the staff have noticed, not noticed in a 14 hearing sense, but the staff have observed and 15 documented several deficiencies.
16 And should the staff find more, they will 17 presumably document them in their inspection reports.
18 But none of that documentation, none of the inspection 19 findings, causes the CAL to become a licensing action 20 all by itself.
21 JUDGE BARATTA: I mentioned the Palo Verde 22 case. I got comments from SCE and Friends of the 23 Earth. Would you care to comment on the Palo Verde 24 case?
25
140 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 MR. ROTH: The Palo Verde case, I believe 1
that would be one prior to the TSTF 449 widespread, an 2
option for steam generators. I'm not overly familiar 3
with the case, Your Honor. But was that pre 2006?
4 JUDGE BARATTA: Yes.
5 MR. ROTH: Then it would be before the 6
current version of SCE's license relative to the steam 7
generator program. And so the analogies --
8 JUDGE BARATTA: I'm looking at it not from 9
that aspect, but from whether or not in that case 10 there was a change because of a problem with a steam 11 generator. And it was simultaneously a license 12 amendment, too, because there was a tech spec change 13 submitted. Would you care to -- All right. You're 14 not familiar with it. Never mind. Maybe you should 15 look at it.
16 MR. ROTH: I would say that as the staff's 17 brief noted when SCE did its original changes -- I 18 believe this is our Commission brief actually that 19 noted this -- we noted the changes in the tech specs 20 that SCE requested in the same licensing action 21 request that they said they're going to change their 22 steam generators using a 50.59. So they did have some 23 corresponding changes that I believe went to special 24 reports, went to overprotection or containment 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 pressure of final values.
1 But that's again in the brief the staff 2
filed before the Commission last summer. I could get 3
specific information for you.
4 But if the question is did SCE need some 5
licensing action with the steam generators, yes, the 6
staff --
7 JUDGE BARATTA: No, no. That's different.
8 I think you got it confused with another case. Okay.
9 This is a case where they had a steam generator and it 10 degraded. And they found they had to lower the hot 11 leg temperature. So it's different than changing out 12 the steam generator which is I think the other case 13 you were referring to.
14 MR. ROTH: Certainly. In that situation, 15 perhaps the Administrative Letter 98-10 or 98-12, the 16 one that says if you find a nonconservative tech spec 17 come in for an amendment. Here if they find they're 18 T hot is incorrect. It's not going to satisfy some 19 analyses. Then certainly they would be expected to 20 take administrative control, lower the power as needed 21 and then submit a licensing action.
22 So while I express no familiarity with the 23 facts of Palo Verde, the description you provide 24 sounds appropriate.
25
142 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 JUDGE BARATTA: Right. And that's 1
precisely what was done.
2 JUDGE HAWKENS: I have one more question 3
for you, Mr. Roth. Do you agree with Edison's view 4
that this Board has the discretion to resolve the 5
standing and contention admissibility issue first?
6 And if we rule either lack of standing or an 7
inadmissible contention we need not address the first 8
issue?
9 MR. ROTH: One would have to look very 10 carefully at the language of the CAL. The 11 Commission's referral said determine if the staff's 12 CAL was a licensing action and, if so, does FOE have 13 standing to otherwise meet the requirements? So I 14 think reading the Commission you really have to 15 determine one before two.
16 JUDGE HAWKENS: All right. Thank you.
17 MR. ROTH: And did you have any questions 18 on the 50.59 evaluations, questions 2 and 3?
19 JUDGE HAWKENS: I have one question.
20 MR. ROTH: I'll turn it over to Mr. Smith 21 then. Thank you, Your Honors.
22 JUDGE HAWKENS: Good afternoon, Mr. Smith.
23 MR. SMITH: Good afternoon, Your Honor.
24 JUDGE HAWKENS: I have one question for 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 you.
1 MR. SMITH: Okay.
2 JUDGE HAWKENS: Assuming that we construe 3
the referral order as directing us to look at the 4
entire process, not limited to the four corners of the 5
letter itself, is it appropriate to use Rule 50.59 6
standards for resolving whether it's a de facto 7
license amendment?
8 MR. SMITH: Thank you, Your Honor. It's 9
a good question and the staff position's which we 10 articulated in our brief is that 50.59 is not helpful 11 in resolving the question referred to you by the 12 Commission. Commission precedent on de facto license 13 amendment says that the relevant inquiry and I'll 14 quote from the Perry decision here is "is it an agency 15 action permitting a licensee to go beyond existing 16 license authority" and that would be license amendment 17 with meeting the Atomic Energy Act.
18 As we explained in our brief, the Standard 19 50.59 evaluate a different question. They look at 20 changes to the FSAR themselves for the license 21 amendment.
22 JUDGE HAWKENS: So your answer --
23 MR. SMITH: There is already a change 24 presupposed in the 50.59 analysis.
25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 JUDGE HAWKENS: Let me ask a question.
1 MR. SMITH: Yes, sir.
2 JUDGE HAWKENS: Your answer is really 3
linked to the premise that our review is limited to 4
the four corners of the CAL or awaiting a final 5
determination by the staff.
6 MR. SMITH: No, Your Honor. It's not. If 7
you were to go beyond the four corners of the CAL and 8
to determine whether or not the activities described 9
in the October return to service plan constitute a de 10 facto license amendment, then we think that the 11 Standard 50.59 aren't helpful for three main reasons.
12 First, the 50.59's inquiry focus limit 13 change rises to the level of requiring a license 14 amendment under the 50.59(c)(2) criteria. So in 15 essence it already presupposes that there's a change 16 to the licensing basis, a change to the FSAR.
17 Second, 50.59 standards are towards the 18 licensees. The Commission precedent makes clear that 19 it's staff action that's ultimately the relevant 20 loadstone for determining if an agency action is in 21 fact a de facto license amendment.
22 And then third and finally in the CLI 23 20 the Commission referred you to the Yankee case 24 which we cited in our brief and Mr. Roth discussed 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 briefly. And Yankee indicated that an inquiry into 1
the compliance of 50.59 is not appropriate --
2 JUDGE HAWKENS: That's also because there 3
was final agency action there as well, wasn't there?
4 MR. SMITH: Yes.
5 JUDGE BARATTA: In Yankee Rowe, I believe 6
there was an agency action, wasn't there? They 7
approved dismantling of some of the equipment. Was 8
that it?
9 MR. SMITH: Right. That's correct. I 10 believe there were three challenges brought to that 11 action, one of which was that activities leading to 12 that dismantling were inappropriately taken with 13 50.59. And in a footnote in that case, the Commission 14 made the observation. They reiterated in CLI-12-20 15 that -- and I quote. This is from 101 Note 7 of that 16 case -- "A member of the public may challenge an 17 action taken under 10 CFR 59.50 only by means of a 18 petition that under 10 CFR 2.206."
19 And I'd like to go a little farther on 20 Yankee for a minute if I could. In their reply brief, 21 Friends of the Earth has suggested that this footnote 22 is a dicta or the language is not entitled to any 23 further weight.
24 But if you read the actual decision, I 25
146 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 think it's integral to the final holding in the case.
1 And if you'll bear with me, on 101 to 102, the 2
Commission describes it and says that "dismantling of 3
the decommissioning activities currently be connected 4
by YAEC," and that's the Yankee Atomic Electric 5
Company, "and the component removal program are being 6
undertaken pursuant to 10 CFR 50.59 which allows the 7
licensee to make changes to those facility without 8
prior NRC approval. If these changes do not involve 9
an unreviewed safety question" -- that was the old 10 standard. It's been amended since then as you're 11 probably aware -- "or by the terms of the license."
12 And then after some time, they say, "the 13 activities that are the subject of the petition are 14 not activities that involve NRC actions -- the hearing 15 rights afforded by Section 189(a)."
16 So contrary to FOE's suggestion I think, 17 the observation you can only challenge 50.59 18 determination in a 2.206 proceeding is really integral 19 to the holding in Yankee. And if there are any 20 questions about a dicta or a throwaway line or an 21 actual rule the Commission intends to be effective and 22 have force on the Commission reliance on it, in CLI-23 12-20 to refer Friends of the Earth's 50.59 claims to 24 the staff in the 2.206 proceeding I think demonstrates 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 that the Commission meant what it said in the Yankee 1
case 2
JUDGE HAWKENS: Does the staff refer or 3
rely or use this guidance to 50.59 standards when it, 4
for example, is looking at the return to service plan 5
to ensure that nothing does require a license 6
amendment?
7 MR. SMITH: The way 50.59 enters into the 8
staff's review and I think this illustrates why 50.59 9
is not a useful tool for the Board to use in this case 10 11 JUDGE HAWKENS: No, no. I asked does the 12 staff refer or rely or use the guidance, the standards 13 in 50.59, when, for example, it's reviewing the return 14 to service plan?
15 MR. SMITH: Yes. The staff will use 50.59 16 to review the Licensee's 50.59 evaluation. It doesn't 17 take an independent 50.59 evaluation. That's because 18 those standards are directed towards licensees.
19 JUDGE HAWKENS: I understand. So why would 20 it be inappropriate for this Board if it were looking 21 at this de facto license amendment process? Why would 22 it be inappropriate likewise to refer to that very 23 standards that the staff refers to in determining 24 whether it is a de facto license amendment?
25
148 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 MR. SMITH: Thank you, Your Honor. I 1
think you misunderstood my last response. I didn't 2
mean to say that the staff uses 50.59 to look and 3
determine if a license amendment is needed when it's 4
conducing its own independent analysis, what's in this 5
case, the October return to service plan.
6 Rather when the Licensee submitted the 7
return to service plan, they also performed 50.59 8
evaluations to support several of the actions in 9
there. There were several 50.59s that were done. And 10 in its inspection and oversight capacity, the staff 11 reviewed those 50.59 evaluations for adequacy. It did 12 not itself undertake a 50.59 evaluation to see if the 13 terms of the return to service plan needed a license 14 amendment.
15 JUDGE HAWKENS: But I'm sure that's what 16 has to be in the back of the NRC staff as it conducted 17 its review whether any of the terms in the return to 18 service plan do require a license amendment, isn't it?
19 MR. SMITH: I think it's an excellent 20 point, but the important thing I think -- I don't want 21 to speculate too much on what the internal process 22 that the staff is using to review the return to 23 service plan is. But I think, of course, as the staff 24 is reviewing that plan they are keenly aware of 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 whether or not the terms that are proposed in it 1
conflicted in any licensing in terms of the licensing 2
basis as they currently exist which is to the extent 3
this raises concerns why you're seeing things like RAI 4
35 that asks the Licensee to demonstrate that proposal 5
is in conformance with the current licensing basis.
6 I don't think that the staff has sort of 7
the 50.59(c)(2) checklist in mind all the time and is 8
going through the eight criteria with every plan they 9
review. They look at those when they review the 10 licensee's application of those criteria. I think 11 this shows why this is really a criteria that's used 12 in a different context by a different entity for a 13 different purpose.
14 JUDGE BARATTA: I think you said something 15 earlier which I would like to confirm. You said that 16 the 50.59 process only comes into play when one has 17 determined that a change to the FSAR is going to be 18 made. Correct?
19 MR. SMITH: That's right. That's in our 20 brief in the area you cite, Your Honor.
21 JUDGE BARATTA: Right. Now, however, if 22 you are trying to -- If you're looking back at 23 something, isn't it helpful to use those factors of 24 (c) if a change should have been made?
25
150 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 MR. SMITH: Could you restate your 1
question, Your Honor?
2 JUDGE BARATTA: Looking backwards at -- So 3
somebody goes off and does something. Okay.
4 MR. SMITH: Sure.
5 JUDGE BARATTA: Now looking back at that 6
event, they didn't even look at the FSAR to see a 7
change needed to be made. They go off and do 8
something. And then someone comes along and says, 9
"Okay. Wait a minute. I want to see if that should 10 have been an FSAR change." Isn't it useful to look at 11 the considerations that are in 50.59 to determine if 12 maybe there should have been an FSAR change?
13 MR. SMITH: It's a good question, Your 14 Honor. And I think the answer lies in applying the 15 standard for de facto license amendment as it's 16 articulated by the courts and the Commission. And 17 they say, "Has there been a change in the licensing 18 basis authorized by the agency?" In this case your 19 question presupposes that there was in fact a change 20 to the FSAR. I think 50.59(c)(2) wouldn't be helpful 21 because you'd already had your question answered.
22 JUDGE BARATTA: Isn't it true that when 23 you talk about a change to the licensing basis or the 24 scope of the license, etc., that there are many ways 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 it can occur, one of which happens to be the FSAR and 1
also the tech specs which are an expression of the 2
FSAR? Right? Is that correct?
3 MR. SMITH: I would agree with that. Both 4
those are included in the licensing basis.
5 JUDGE BARATTA: Now I'm trying to 6
determine if an event should have been treated as a 7
tech spec change or a change to the FSAR. The 8
criteria that are in 50.59 are the eight items that, 9
yes, those could result in a change to the FSAR.
10 They're not the only ways and there may be other ways, 11 too. So why isn't it useful as guidance to look at 12 those factors, not to apply the 50.59 process, but to 13 look at those factors?
14 MR. SMITH: A very good question, Your 15 Honor. And I think when thinking about 50.59 it's 16 extremely helpful to review the NRC approved guidance 17 document that the industry has put out, NEI 96-07, 18 which has a very detailed description of how 50.59 19 process is supposed to function.
20 And before you get to the place where you 21 apply the eight criteria, you first look and see if 22 the proposed activity, be it a change, a test or an 23 experiment, is resulting in a change to the FSAR. And 24 if it doesn't result in a change to the FSAR, you 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 screen it out. So to the extent we're talking about 1
with de facto license amendment is there's been a 2
change to the licensing basis. You're already talking 3
about a change to the licensing basis and you've 4
identified a change to the FSAR. So your question is 5
answered I believe without the need to invoke the 6
(c)(2) criteria.
7 JUDGE BARATTA: Okay. Thank you.
8 (Off the record discussion.)
9 JUDGE HAWKENS: Mr. Smith and Mr. Roth and 10 Ms. Kanatas, we've exhausted our questions for you 11 unless you have any final information to share with 12 us.
13 MR. ROTH: One final item, Your Honor, 14 that you may find useful in answering Judge Baratta's 15 question. If you look at the AIT reports, the 16 supplemental report which is published November 9th 17 which is a public report available at NRC's website, 18 among the items that it reviews are the 50.59 19 evaluations. And obviously the inspectors used 50.59 20 criteria when reviewing the 50.59s that are performed.
21 In particular, if you look on page 22, the 22 closure of unresolved item 7 which is called 23 "Evaluation of Departure of Method of Evaluation for 24 the 50.59 Process," it's very clearly something the 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 staff uses in its reviews. Thank you, Your Honors.
1 JUDGE HAWKENS: Thank you. Thank you, Mr.
2 Smith.
3 MR. SMITH: Thank you.
4 JUDGE HAWKENS: Mr. Ayres, we said at the 5
outset we would give the opportunity for rebuttal not 6
to exceed five minutes. Would you like to avail 7
yourself of that opportunity?
8 MR. AYRES: I would, Your Honor, with full 9
understanding that I stand between you and lunch. So 10 I will try to make this quick and hopefully be able to 11 do that in five minutes.
12 The staff and Edison argue repeatedly as 13 they have here this morning that the scope of this 14 proceeding is limited to the four corners of the CAL.
15 The Board I think is correct in its conclusion or 16 apparent conclusion that the scope is broader than 17 that.
18 The key part here is the NRC's 19 characterization of this proceeding is not 20 determinative. For that, we cite Commonwealth of 21 Massachusetts v. NRC, 1st Circuit Case, 878 F 2d 1516.
22 That's simply reiterates a Supreme Court case, CVS v.
23 U.S. from the year 1942.
24 Second point, I want to be clear that 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 we're not asking for hearings on all CALs. Edison's 1
presentation seems to suggest that. To the contrary, 2
we regard this as a unique case. The CAL is a useful 3
enforcement tool, should be used without hearings in 4
many instances.
5 But in this case what's happened is just 6
not the CAL. It's a process which whatever it's been 7
called is a licensing process. Public meetings and 8
hearings don't stand in for the kind of hearings that 9
are available under NRC regulations.
10 With regard to the question of whether you 11 can change the order of your consideration and 12 consider questions 2 and 3 after question 1 or before 13 question 1, you get different results that way. If 14 you consider questions 2 and 3, standing and 15 admissibility, you do not reach the question referred 16 to you by the Commission.
17 And, of course, in terms of the result, no 18 hearing is provided. No license amendment is 19 required. So these are not interchangeable. I think 20 the Commission said, "Tell us whether this is a 21 licensing proceeding. Then tell us whether these 22 parties are appropriate parties in it." And that's 23 the right order to do it in.
24 With regard to the license provision 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 5.5.2.11 on tube integrity, the license requires that 1
they demonstrate tube integrity. There's a 2
demonstration required. And the OA that's been 3
offered may or may not provide such a demonstration.
4 We've already seen a number of critiques from our 5
experts of what has been provided there.
6 More to the point with respect to those 7
issues as we brought to your attention earlier when 8
the Applicant began to send you notifications, the 9
Applicant seems to want to litigate this case after 10 the close of the briefing. You were very clear about 11 briefing schedules. We followed them with a few 12 changes which were approved by you.
13 Edison chose not to answer the obvious 14 question in their brief. Now they want to try to 15 answer it by supplying you documents after the fact.
16 I just want to remind you that we have a motion 17 pending to exclude those documents and we would ask 18 the Board consider that motion carefully.
19 Last, Edison seems to be proposing 20 something here that at least I've never heard of and 21 I suspect none of you have either. I would call it 22 the infinitely malleable license provision. They're 23 telling us now that 70 percent can be the limit this 24 time. And then 75 or 85.
25
156 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 If you allow this kind of a rewriting of 1
the clear language in a license, then what is the 2
license? The purpose of the license under the Atomic 3
Energy Act is to make sure that plant can be operated 4
safely. And for that reason, it has specific 5
requirements, specific demonstrations that have to be 6
made, specific rules that have to be followed.
7 To allow the Licensee to come in here and 8
say, "Well, actually on this one, we can have a 9
malleable rule. You won't even know about it. We'll 10 change it every time there is fuel cycle. Staff will 11 know about," this is degrading what the license is all 12 about. And I urge you to reject that point of view.
13 Your Honors, thank you very much. We 14 appreciate the opportunity to appear before you. And 15 we look forward to your decision.
16 JUDGE HAWKENS: Thank you, Mr. Ayers. And 17 I would like to thank all counsels that were here 18 assembled. This went longer than I think the 19 Licensing Board had expected. But it's been very 20 useful to us. We appreciate your endurance and your 21 vitality and your assistance during this argument in 22 the cases submitted. Thank you. Off the record.
23 (Whereupon, at 1:44 p.m., the above 24 entitled matter was concluded.)
25
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission Proceeding:
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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.
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Southern California Edison Co.
50-361-CAL and 50-362-CAL 13-924-01-CAL-BD01 Rockville, MD