ML15195A411
| ML15195A411 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 07/09/2015 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 50-275, 50-323, ASLBP 15-941-05-LA-BD01, RAS 28052 | |
| Download: ML15195A411 (131) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Pacific Gas and Electric Company Diablo Canyon Nuclear Power Plant Docket Number: 50-275 and 50-323 ASLBP Number: 15-941-05-LA-BD01 Location: Rockville, Maryland Date: Thursday, July 9, 2015 Work Order No.: NRC-1734 Pages 1-130 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433
1 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3 + + + + +
4 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD PANEL 5 + + + + +
6 ---------------------------x 7 In the Matter of: : Docket No.
8 PACIFIC GAS & ELECTRIC : 50-275 9 COMPANY : 50-323 10 (Diablo Canyon Nuclear : ASLBP No.
11 Power Plant, Units 1 and 2): 15-941-05-LA-BD01 12 ---------------------------x 13 Thursday, July 9, 2015 14 15 Nuclear Regulatory Commission 16 Hearing Room T-3 B45 17 11545 Rockville Pike 18 Rockville, Maryland 19 20 BEFORE:
21 PAUL S. RYERSON, Chairman 22 DR. GARY S. ARNOLD, Administrative Judge 23 NICHOLAS G. TRIKOUROS, Administrative Judge 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2 1 APPEARANCES:
2 On Behalf of Pacific Gas & Electric Company:
3 DAVID A. REPKA, ESQ.
4 TYSON SMITH, ESQ.
5 of: Winston & Strawn, LLP 6 1700 K Street, N.W.
7 Washington, D.C. 20006 8 202-282-5726 (Repka) 9 202-841-5939 (Repka Cell) 10 202-282-5100 (FAX) 11 drepka@winston.com 12 trsmith@winston.com 13 and 14 L. JEARL STRICKLAND, P.E.
15 Director, Technical Services 16 Pacific Gas & Electric Company 17 Diablo Canyon Power Plant 18 735 Tank Farm Road, Suite 200 19 San Luis Obispo, California 93401 20 805-595-6476 21 805-441-4208 (Cell) 22 LJS2@pge.com 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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3 1 On Behalf of Friends of the Earth:
2 RICHARD E. AYRES, ESQ.
3 JESSICA OLSON, ESQ.
4 JOHN BERNETICH, ESQ.
5 of: Ayres Law Group, LLP 6 1707 L Street, N.W., Suite 850 7 Washington, D.C. 20036 8 202-452-9200 9 ayresr@ayreslawgroup.com 10 olsonj@ayreslawgroup.com 11 bernetuchj@ayreslawgroup.com 12 13 On Behalf of the Nuclear Regulatory Commission:
14 DAVID ROTH, ESQ.
15 CATHERINE KANATAS, ESQ.
16 JOSEPH LINDELL, ESQ.
17 of: Office of the General Counsel 18 Mail Stop - O-15 D21 19 U.S. Nuclear Regulatory Commission 20 Washington, D.C. 20555-0001 21 301-415-2321 (Kanatas) 22 301-415-3725 (FAX) 23 david.roth@nrc.gov 24 catherine.kanatas@nrc.gov 25 joseph.lindell@nrc.gov NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4 1 CONTENTS 2 Opening Statements 3 Friends of the Earth . . . . . . . . . . . . . . 12 4 Pacific Gas and Electric . . . . . . . . . . . . 20 5 NRC Staff . . . . . . . . . . . . . . . . . . . . 28 6
7 Board Member Questions 8 Chairman Ryerson . . . . . . . . . . . . . . 37 9 Judge Arnold . . . . . . . . . . . . . . . . 63 10 Judge Trikouros . . . . . . . . . . . . . . . 89 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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5 1 P-R-O-C-E-E-D-I-N-G-S 2 1:02 p.m.
3 CHAIRMAN RYERSON: Please be seated.
4 Welcome and good afternoon. This afternoon, we're 5 here for a second, very separate Diablo Canyon matter.
6 It concerns, again, the PG&E Diablo Canyon Power 7 Plant, but specifically a Petition and Hearing Request 8 by Friends of the Earth that the Commission has 9 referred to the ASLBP.
10 And I'm going to repeat a number of 11 remarks that I made this morning, which will seem 12 repetitive to most of you, because most of you were 13 here. But this is a separate proceeding and it will 14 have its own transcript. So we will start over again 15 with introductions.
16 I'm Judge Ryerson, a legally trained 17 judge, and I chair this particular Licensing Board.
18 Judge Arnold, again, a nuclear engineer, is on my 19 right. And Judge Trikouros, likewise a nuclear 20 engineer, is on my left.
21 Once again, in addition to having a 22 reporter creating a transcript of today's argument, 23 we're going to have -- the argument is being webcast 24 and is also available to members of the press and the 25 public through a listen-only phone line that's being NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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6 1 kept throughout the day.
2 Before we take the appearances of counsel, 3 once again I'd like to just go over our ground rules, 4 somewhat informal ground rules. Our purpose today is 5 to hear argument on the question that's been referred 6 to us by the Commission. And that is whether the NRC 7 has granted PG&E greater authority under its existing 8 licenses for the Diablo Canyon Plant or otherwise 9 altered the terms of those licenses so as to entitle 10 Friends of the Earth to a Request for a Hearing under 11 Section 189a of the Atomic Energy Act.
12 As we indicated in our Scheduling Order, 13 we will allow each party to make a brief opening 14 statement, not to exceed ten minutes. And then, most 15 of the session will once again be questions that the 16 Board has for the various parties. We have read your 17 Memoranda and we hope that the most useful part of 18 today's session, frankly, will be trying to get 19 answers to questions that we have.
20 Generally, a Board member will ask a 21 question of a particular party and if for some reason 22 someone else feels a compelling need to respond to 23 that question, even though it hasn't been put to them, 24 we're, as I said, going to be relatively informal.
25 Raise your hand and we will, I'm sure, recognize you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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7 1 at the next appropriate moment.
2 Logistically, we'll try to take a short 3 break every hour, hour and a half max and go as long 4 as necessary to finish. Which I hope will be before 5 5:00, but it might conceivably could go after that if 6 it has to. Comments from other judges before we take 7 the appearances? Judge Trikouros? All right. Well, 8 let me first then ask counsel to introduce themselves.
9 MR. AYRES: Judge Ryerson, my name is 10 Richard Ayres. I represent Friends of the Earth in 11 this matter.
12 MS. OLSON: My name is Jessica Olson. I 13 also represent Friends of the Earth in this matter.
14 MR. BERNETICH: My name is John Bernetich.
15 I also represent Friends of the Earth.
16 CHAIRMAN RYERSON: Thank you and welcome.
17 Once again, for the licensee.
18 MR. REPKA: I am David Repka with the law 19 firm of Winston and Strawn on behalf of Pacific Gas 20 and Electric Company. On my left is my colleague, 21 Tyson Smith, also with the law firm. And on my right 22 is Mr. Jearl Strickland of PG&E. He's Director of 23 Technical Services at Diablo Canyon Power Plant.
24 CHAIRMAN RYERSON: Thank you and welcome to 25 you. And we have a slightly different group for the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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8 1 NRC staff. Who do we have today?
2 MR. ROTH: Good afternoon, your honors.
3 David Roth for the NRC staff. I have Joseph Lindell 4 and Cathy Kanatas, also representing the NRC staff.
5 And two staff members themselves to assist counsel 6 with any technical matters. Eric Oesterle and Neil 7 O'Keefe are sitting behind us.
8 CHAIRMAN RYERSON: Thank you. There is one 9 matter I'd like to take up before we get through the 10 opening statements. And that is, I think it was --
11 must have been Thursday night quite late, we received 12 by email, not through the electronic filing system, 13 but email, I believe appropriately served on all other 14 parties by email, a proposed Limited Appearance 15 Statement from a former commissioner.
16 And frankly, usually I am not enthusiastic 17 about unsolicited Limited Appearance Statements and 18 this was not solicited, but it was volunteered and it 19 obviously reflected some effort and thought. We are 20 trying to decide what to do with that. Again, it was 21 not solicited and, frankly, although clearly some 22 thought went into it, our rules do not allow Limited 23 Appearance Statements to constitute evidence of any 24 form.
25 So to the extent that the Limited NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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9 1 Appearance Statement includes factual representations 2 going back to the original licensing of Diablo Canyon, 3 I do not believe even if we accept the Statement that 4 we can properly consider those fact statements as 5 evidence and consider them for their own weight.
6 Likewise, the Limited Appearance Statement expresses 7 great confidence in the Licensing Boards and in the 8 adjudicatory process, but as to that aspect of the 9 Limited Appearance Statement, I think the Commission 10 has made quite clear that in referring this matter to 11 us, it has asked us to do a fairly narrow assignment.
12 And that is specifically determine whether 13 under our rules, Friends of the Earth has established 14 a right to a hearing. Friends of the Earth has also 15 asked for a discretionary hearing, thinking it would 16 be a good thing to air these issues in public and the 17 Commission, as I understand it, has kept that issue 18 for itself. It has not ruled on that or denied 19 without prejudice for the present time. So the 20 Commission really has that aspect of it in front of 21 it, not us.
22 So all of that said, out of respect for a 23 former commissioner, I think the Board is tentatively 24 inclined to accept the Limited Appearance Statement, 25 but to recognize what I've just said, that we're not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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10 1 taking facts from it and, frankly, to the extent it 2 expresses policy views, those really don't seem to be 3 in front of us in light of the nature of the 4 Commission's referral. I think we would be issuing an 5 Order to that effect fairly shortly unless anyone has 6 an objection or a comment. Anybody have a comment on 7 that? Mr. Ayres?
8 MR. AYRES: Your honor, I understand what 9 you're saying and why you're saying it. It is 10 unusual. We were unaware of this happening until very 11 shortly before it did. So we were not involved in any 12 way in stimulating it or anything else.
13 I do think, though, that there is value in 14 the testimony if you will of someone who was there at 15 the beginning of Diablo strictly given the complexity 16 of this license beginning on almost day one. So I 17 would hope that the Board would consider some sort of 18 rationale for taking the facts alleged here as 19 evidence before it.
20 CHAIRMAN RYERSON: Well, I will say, again, 21 I think we are strictly prohibited by our rules from 22 taking the former commissioner's statements as 23 evidence. I suppose if we are persuaded by something 24 -- I agree, I mean, the background of the Diablo 25 Canyon licensing process, I think everyone agrees, is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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11 1 a very complex and unusual background.
2 Now, I think we might conceivably, if we 3 see something of great interest in that Statement, see 4 if we can verify those facts through official records 5 of which we can take judicial notice, but I do not 6 expect that we will take any of those factual 7 statements as facts based upon the Limited Appearance 8 Statement. I think our rules forbid that expressly.
9 Mr. Repka, any comments?
10 MR. REPKA: With the limitations and 11 qualifications that you have expressed, Judge Ryerson, 12 we don't have any objection to the treatment that you 13 propose. Just with respect to Mr. Ayres' comments, I 14 would say that to the extent that anything in there 15 were to be considered, we would absolutely have an 16 interest in responding to that and do believe that 17 former Commissioner Gilinsky is simply raising issues 18 that were litigated at the time of initial licensing.
19 But I understand from you say that we're not at that 20 point, but should that ever be an issue, we would 21 certainly want to respond.
22 CHAIRMAN RYERSON: Okay. And NRC staff?
23 MR. ROTH: David Roth for the staff. We 24 understand the Board's reasoning. Based on a cursory 25 review of the item emailed, we don't think it's overly NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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12 1 relevant to the matters referred to the Committee.
2 CHAIRMAN RYERSON: Okay. All right. Thank 3 you. So we will issue an Order on our own without a 4 need for any briefing on that particular issue. So I 5 think we're ready for opening statements. Mr. Ayres?
6 MR. AYRES: Chairman Ryerson, Judge 7 Trikouros, Judge Arnold. Thank you for the 8 opportunity to present to the Board today. We 9 appreciate it. And my name is Richard Ayres. As I 10 said earlier, I am counselor for Petitioner, Friends 11 of the Earth.
12 I should say at the outset, as probably 13 everyone will say, this is a matter which is heavy in 14 fact. And as a consequence, we're going to have to 15 struggle through some facts. And for that reason, we 16 have brought along a couple of visual aids which we 17 will share with you in a smaller size form.
18 And I'm -- also for that reason, I will 19 read a statement as an opening statement here. I 20 apologize to the Board to begin with for that because 21 I know it's not as spontaneous or interesting, but 22 I'll try to make it as interesting as I can.
23 May it please the Board. The Commission 24 has directed the Board to determine whether Petitioner 25 has identified any staff actions that amount to a de NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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13 1 facto license amendment. Under applicable case law 2 and NRC rulings, a de facto license amendment has 3 occurred when the Commission staff acts to authorize 4 additional operating activities by the licensee or 5 otherwise alters the original terms of the license.
6 In our filings, we have shown that when 7 confronted with a series of findings showing Diablo 8 Canyon exposed to new and increasingly more capable 9 seismic hazards, the staff approved changes in the 10 terms of the Diablo Canyon license that have reduced 11 the margin of safety. These changes provide PG&E with 12 greater operating authority than in the pre-existing 13 license. Petitioners are, therefore, entitled under 14 the Atomic Energy Act to an opportunity for public 15 hearing to test the prudency of these de facto license 16 amendments.
17 PG&E was licensed to operate Diablo Canyon 18 on the basis that the maximum seismic risk to the 19 plant had been accounted for. The 2008 discovery of 20 the Shoreline Fault, just offshore, called into 21 question the adequacy of the plant's design basis.
22 PG&E has conducted four studies since then to assess 23 whether the plant's design basis nonetheless remains 24 adequate.
25 All four showed that the maximum NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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14 1 earthquake from the newly discovered faults would 2 exceed the Double Design Earthquake seismic design 3 basis of the plant. The fourth showed that it would 4 also exceed the Hosgri evaluation. Thus, the hazard 5 from the Shoreline Fault Zone is bounded by neither 6 the DDE, nor the Hosgri spectra.
7 After the first two analyses, PG&E 8 proposed a license amendment, license request 11-05, 9 to change the design basis of its license by 10 substituting the Hosgri evaluation for the Double 11 Design Earthquake for the safe shutdown earthquake.
12 Initially, the staff agreed that the proposed changes 13 in the seismic design basis required a license 14 amendment. Subsequently, the staff reversed position 15 and, instead, ordered PG&E to change the design basis 16 of the plant by amending the Safety Analysis Report.
17 PG&E then withdrew the proposed amendment.
18 The NRC staff then approved the changes to the seismic 19 design basis that were made in Revision 21 for the 20 Diablo Safety Analysis Report. Revision 21 21 substituted the less protective Hosgri spectrum for 22 the Double Design Earthquake as the plant's seismic 23 design basis. The staff action amounts to a de facto 24 amendment for several reasons.
25 First, by altering the Safety Analysis NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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15 1 Report to use Hosgri as the seismic yardstick, the 2 staff has granted the plant greater operating 3 authority. Second, with this yardstick, the plant can 4 continue to operate even though all four studies of 5 the seismic situation demonstrate that the reevaluated 6 ground motion response spectra far exceed that of the 7 DDE design basis. And third, under Revision 21, 8 inputs and methods used to reanalyze that seismic 9 hazard are different from those called for in the 10 preexisting design basis.
11 This is not an enforcement situation where 12 a licensee is failing to operate by the terms of its 13 licensing basis. Here, the NRC staff has granted the 14 licensee authority to operate on terms different from 15 those established by the licensing basis.
16 As we have shown in our briefs, staff 17 actions changed the terms of the license in a number 18 of ways. Correspondence with PG&E through its 19 instruction to change the Safety Analysis Report and 20 subsequent approval of those changes and through its 21 repeated declarations that the Hosgri evaluation, not 22 the DDE, marked the outer limits of the seismic design 23 basis.
24 Requirements of the Atomic Energy Act are 25 straightforward. When a license is amended, there NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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16 1 must be an opportunity for a hearing. Commission's 2 case law in the federal courts tell us that NRC action 3 granting the licensee greater operating authority or 4 otherwise altering the terms of the license 5 constitutes a de facto license amendment, not matter 6 what the staff chooses to call it, oversight, 7 enforcement, or whatever.
8 Now, PG&E and staff's responses to our 9 contentions or arguments are largely circular. They 10 claim that the staff cannot have approved Revision 21, 11 because the staff doesn't approve revisions to a Final 12 Safety Analysis Report. They claim that NRC actions 13 taken as part of the post-Fukushima Section 50.54(f) 14 process cannot be a de facto license amendment because 15 they are, by definition, oversight actions, not 16 licensing actions.
17 These arguments ignore well settled 18 standard laid down by the Commission for whether an 19 action constitutes a de facto license amendment. They 20 also ignore the Commission's admonition in the parent 21 case that it is the substance of the action that 22 counts, not the label applied by the Commission staff.
23 What we're putting up for you first is a 24 comparison of Revisions 20 and 21 to show you the 25 differences between them. PG&E and NRC rely so NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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17 1 heavily on these circular arguments because they 2 cannot dispute that the changes made from Revision 20 3 to 21 go directly to the plant's seismic design basis.
4 According to PG&E's internal FSARU Change Request 5 Form, these changes had been "submitted to and 6 approved by" the NRC prior to making the changes.
7 First, Revision 21 changed the plant's 8 maximum earthquake from the DDE to the HE as you can 9 see. Because it is part of the plant's seismic design 10 basis, safe shutdown earthquake cannot be altered 11 without a license amendment. Third, Revision 21 added 12 a new method of evaluation to the seismic design basis 13 by designating the methods and assumptions required in 14 the Fukushima process as the method by which any new 15 seismic information will be evaluated in the future.
16 Under NRC regulations and relevant case law, this 17 change alters the terms of the license and it may only 18 be done by license amendment.
19 And finally, although Revision 20 noted 20 that the LTSP "does not alter" the plant's design 21 basis, Revision 21 did just that. Under the new 22 heading Design Basis, Revision 21 inserted the LTSP as 23 a "licensing basis earthquake." This changes is a 24 direct alteration to the seismic design basis that 25 requires a license amendment.
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18 1 Since 2008, when the Shoreline Fault was 2 discovered, the staff and PG&E have treated the Hosgri 3 evaluation and the LTSP response spectra as the 4 bounding scenario, bounding spectra for Diablo Canyon.
5 Following each of a number of seismic evaluations, 6 PG&E asserted that the plant remains safe because the 7 new spectra resulting from the reanalysis were bounded 8 by these two evaluations. Staff repeated found this 9 assertion to be acceptable from both the safety and 10 licensing perspectives.
11 Finally, turning to the staff action, all 12 of these changes to the seismic design basis were 13 approved and, in some cases, ordered by the NRC staff.
14 Staff approved expansion of PG&E's authority through 15 the following actions. First, it designated many of 16 the changes PG&E had requested in the License 17 Amendment Request 11-05 as considerations in the post-18 Fukushima process.
19 Second, it directed PG&E to amended the 20 FSARU to add the Shoreline as a lesser included 21 scenario under Hosgri and effectively adopted the 22 Hosgri evaluation as a safe shutdown earthquake.
23 Third, staff reviewed and approved proposed changes to 24 the FSARU before PG&E submitted them. And finally, 25 staff authorized the plant to continue to operate even NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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19 1 though it has been shown repeatedly to exceed its 2 seismic design basis.
3 These facts make clear that the staff has 4 taken significant affirmative actions that have 5 resulted in expansion of PG&E's operating authority.
6 To close, the Commission has directed the Board to 7 determine whether the staff has granted the licensee 8 greater operating authority or otherwise altered the 9 terms of the license.
10 We have shown in our Briefs and we will 11 show today that the staff has approved major 12 expansions of the operating authority of Diablo Canyon 13 first by requesting and approving changes to the 14 seismic design basis and second, by approving a new 15 method of evaluation to be used in any future seismic 16 hazard analysis. Under the Atomic Energy Act, 17 therefore, this Board should grant the Petitioners an 18 opportunity for a hearing to determine whether the 19 amendments are consistent with the Atomic Energy Act 20 and the safety of the public. Your honors, thank you 21 and we will await your questions.
22 CHAIRMAN RYERSON: Thank you, Mr. Ayres.
23 If you are providing copies of these to the Board, 24 have you already provided copies to --
25 MR. AYRES: No, we have them --
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20 1 CHAIRMAN RYERSON: -- other parties?
2 MR. AYRES: -- right here.
3 CHAIRMAN RYERSON: You have copies for the 4 other parties?
5 MR. AYRES: Yes. Mr. Bernetich will -- you 6 want to walk them around? You have those, your 7 honors?
8 CHAIRMAN RYERSON: I don't -- we don't have 9 our set yet.
10 MR. AYRES: Okay. Sorry. I thought you 11 had them already.
12 CHAIRMAN RYERSON: All right. Mr. Repka?
13 MR. REPKA: Yes. Thank you, Judge Ryerson.
14 As noted, we were not provided a copy of this 15 information prior to this. I will try to respond to 16 a couple of things along the way as best I can.
17 The issue before the Board is a specific 18 and limited one as defined by the Commission. Whether 19 the NRC has issued an approval that granted PG&E 20 greater authority than the authority provided in the 21 existing Diablo Canyon licenses or otherwise altered 22 the terms of the licenses. FoE maintains that this is 23 a fact heavy issue. I believe it is an issue of law 24 that can be decided as a matter of law.
25 The NRC has not issued any approval to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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21 1 PG&E on seismic issues that amends the licenses, 2 backdoor or otherwise. The NRC has not taken any 3 action that grants PG&E any greater authority than 4 provided in the current licenses, nor has it altered 5 the terms or conditions of the licenses.
6 Diablo Canyon units operates safely today 7 in accordance with the same licenses and technical 8 specifications as they did previously. Safety related 9 structures, systems, and components remain qualified 10 for the seismic loads defined by the current licensing 11 basis that includes the Hosgri Earthquake evaluation.
12 There has been no NRC action entitling FoE to a 13 hearing under Atomic Energy Act Section 189a.
14 FoE's de facto amendment argument has 15 continuously evolved since the Hearing Request was 16 filed in August 2014. Through all of the pleadings, 17 FoE's arguments have been premised on 18 mischaracterizations of the Diablo Canyon seismic 19 licensing history, facts taken out of context, 20 misunderstandings of the PG&E seismic studies, and 21 misrepresentations of the NRC's regulatory processes.
22 FoE has asserted that the NRC has approved 23 relaxed assumptions and acceptance criteria for 24 evaluating new seismic information, that the plant is 25 operating outside of the licensing basis as defined by NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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22 1 FoE, that new seismic studies and methodologies have 2 been "folded into" the licensing basis of the plant.
3 But none of that is true. The licenses 4 have not changed. The licensing basis has not 5 changed. And, in fact, the NRC has not issued any 6 approval to PG&E on seismic issues that changes the 7 operating authority or alters the license.
8 In the original Hearing Request and again 9 today, FoE relies upon PG&E's withdrawn License 10 Amendment Request, LAR 11-05. That request would have 11 modified the licensing basis by redefining the safe 12 shutdown earthquake and adopting a specific approach 13 to evaluating new seismic information, something 14 lacking in the current regulations and licenses. The 15 LAR, the License Amendment Request, was withdrawn 16 after the Fukushima accident. The license and 17 licensing bases remain unmodified.
18 Diablo Canyon is instead included in the 19 generic Section 50.54(f) process to assess the 20 adequacy of the current licensing basis. Meanwhile, 21 safety related equipment is qualified and functional 22 for the current licensing basis seismic criteria and 23 there is a clear safety basis for continued operation 24 in accordance with the current licensing basis.
25 The NRC Section 50.54(f) requests to all NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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23 1 operating licensees requires seismic reevaluations 2 based on new information and new methodologies 3 developed since initial licensing. It is not a change 4 to the licenses of operating plants. It's an exercise 5 of the staff oversight process to determine whether 6 additional actions, including license or licensing 7 basis changes, are warranted.
8 PG&E's response in March 2015 summarizing 9 the results of its seismic hazards screening 10 evaluation does not change the Diablo Canyon license 11 or licensing basis. The fact that it is based on a 12 non-licensing basis probabilistic methodology is the 13 very point of the evaluation and any plant or license 14 changes that may be subject to Section 189a hearing 15 rights are still to be determined.
16 The Commission in its St. Lucie and Fort 17 Calhoun decisions has emphasized the distinction 18 between licensing actions that involve hearings and 19 oversight activities that do not. FoE simply ignores 20 the distinction.
21 The NRC staff's Research Information 22 Letter 1201 in its October 2012 letter evaluating 23 PG&E's interim report on the Shoreline Fault is not an 24 NRC licensing approval. It's an NRC staff oversight 25 document addressing and confirming PG&E's assessments NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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24 1 of the safety of current operations in accordance with 2 the current design and licensing basis.
3 The NRC concluded that the Shoreline Fault 4 could be addressed in the UFSAR as a lesser included 5 case under the licensing basis Hosgri Earthquake 6 evaluation. The conclusion did not change the license 7 or even the licensing basis. FoE has claimed, and 8 again today, that the NRC has approved UFSAR Revision 9 21 and, therefore, amended the license. But under the 10 regulations, the NRC does not approve UFSAR revisions.
11 Revision 21 added information on the 12 Hosgri evaluation. It did not add the Hosgri 13 evaluation for the first time. That already existed 14 in the UFSAR. It simply added additional 15 clarification. The UFSAR revision referenced the 16 Long-Term Seismic Program. It included that as 17 licensing history information, it did not include that 18 as part of the licensing basis of the plant.
19 In any event, a UFSAR revision is a 20 notification document. It is not an amendment to the 21 license. As recognized by the Commission in its 22 recent decisions, a licensee cannot unilaterally amend 23 a license. UFSAR revisions are subject to NRC 24 oversight and enforcement, but there is no NRC 25 approval that confers hearing rights.
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25 1 PG&E's Internal Change Request document 2 related to UFSAR Revision 21 is also not an NRC 3 approval. Nor is the NRC's internal and preliminary 4 review document, the so called Bamford Memo. If FoE 5 believes that the UFSAR revision did not comply with 6 10 CFR 50.71(e) or with 10 CFR 50.59, that concern 7 must be pursued through a request for enforcement 8 action under 10 CFR 2.206.
9 The NRC's December 2014 Inspection Report 10 at Diablo Canyon is also not an approval. Nor does it 11 amend the license or the licensing basis. Inspection 12 Reports are not license amendments and do not involve 13 hearing rights, plain and simple.
14 FoE has also relied upon a nonconcurrence 15 and a differing professional opinion, but staff's 16 management's disposition of those internal concerns, 17 related to the adequacy of NRC oversight by their very 18 nature, did not change the Diablo Canyon licenses.
19 FoE consistently misrepresents the relevant facts and 20 the NRC's regulatory processes.
21 FoE equates oversight with licensing 22 approvals. FoE equates the license with licensing 23 basis. FoE would expand the Atomic Energy Act hearing 24 requirement to practically every NRC activity and 25 every NRC decision to either pursue or not pursue NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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26 1 enforcement action. FoE's approach is simply not 2 consistent with the law, with Commission precedent, or 3 the existing regulatory framework.
4 Three cases have been relied upon to 5 support the argument that there has been a de facto 6 license amendment. The Commission's decision in 7 Perry, First Circuit decision in Citizens Awareness 8 Network, and a D.C. Circuit decision in Shieldalloy 9 versus NRC. In all three of these cases, there were 10 clear NRC actions granting approval for specific new 11 activities. An approval of a Revised Reactor Vessel 12 Specimen Withdraw Schedule in Perry. A Commission 13 decision to order and allow a licensee to proceed with 14 major decommissioning work not otherwise authorized in 15 Citizens Awareness Network. And an order approving 16 new venting of radioactive gasses in Shieldalloy.
17 The issue in each case was whether those 18 approvals should have been treated as license 19 amendments subject to hearing rights. In the present 20 case, there is no licensing event. No NRC approval 21 that could be a de facto amendment. Yes, the NRC has 22 exercised its oversight authority. And, yes, the NRC 23 is evaluating new seismic information as an ongoing 24 matter using new methodologies on a schedule 25 consistent with PG&E's and the NRC's staff's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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27 1 conclusion that operations under the current license 2 and the current seismic design and licensing basis is 3 safe.
4 But the Diablo Canyon units are still 5 operating in accordance with the current licenses and 6 seismic licensing bases. The NRC has not increased 7 operating authority or granted any new authority.
8 There is no approval of new activities even remotely 9 analogous to the specific approvals granted by the NRC 10 in the three cases relied upon.
11 Citing testimony from a Senate committee 12 hearing and other external communications, FoE may 13 think that PG&E has not complied with the licensing 14 basis. But even if true, and it's not, a 15 noncompliance with the licensing basis is not a 16 noncompliance with the license. Nor is it a change to 17 the license or an increase in operating authority.
18 FoE may think that there is an increased 19 seismic risk based on the new seismic information 20 developed by PG&E. But even if true, increased risk 21 is not a change to the license or the licensing basis.
22 It is not an increase in operating authority. If the 23 seismic hazards are determined to be greater, that may 24 be a reason to impose new requirements that change the 25 licensing basis, but the NRC has not reached that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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28 1 decision to date.
2 FoE's concerns regarding compliance or 3 regarding safe operation are matters for a Section 4 2.206 Petition. In fact, the Commission already 5 referred FoE's concerns related to safe operations and 6 immediate suspension of operations to the EDO for 7 consideration under Section 2.206. The remaining 8 concerns must be treated the same way. FoE's Request 9 for a Hearing on an operational safety matter should 10 be denied.
11 CHAIRMAN RYERSON: Thank you, Mr. Repka.
12 Mr. Roth?
13 MR. ROTH: Your honor, Ms. Kanatas is going 14 to do the opening.
15 CHAIRMAN RYERSON: Okay. Thank you.
16 MS. KANATAS: Good afternoon, your honors.
17 My name is Cathy Kanatas and I represent the staff.
18 As your honors know, this afternoon's proceeding is 19 not a forum to relitigate the Diablo Canyon operating 20 license or a proceeding to discuss the safe operation 21 of the plant. Instead, it is a threshold proceeding 22 to determine whether FoE has identified a de facto 23 licensing action that triggers an opportunity to 24 request a Section 189 hearing.
25 Therefore, unlike this morning's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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29 1 proceeding, there is no pending application seeking 2 NRC approval or a Notice of Opportunity for Hearing 3 establishing the scope of a proceeding. Instead, we 4 have the Commission's referral in CLI-15-14, which 5 established this proceeding and its limited scope.
6 Since CLI-15-14 is why we're here today 7 and because FoE and the staff have different views of 8 this referral, I will discuss it first. Then I will 9 briefly discuss why none of the staff actions in FoE's 10 Petition or Reply constitute a de facto license 11 amendment and why the Board should deny the Petition 12 on that ground. Finally, I will address why FoE's 13 contentions do not meet the Section 2.309 requirements 14 and why the Board should not consider FoE's 15 Supplemental Brief.
16 In CL-15-14, the Commission referred a 17 limited question to the Board. Did FoE's August 2014 18 Petition or October 2014 Reply identify an NRC staff 19 action related to the analysis of the Shoreline Fault 20 that effectively amended PG&E's license and, 21 therefore, provided FoE with an opportunity to request 22 a hearing? The Commission's referral specified both 23 the law and the facts to apply in this proceeding.
24 In terms of the law, the Commission 25 directed that the Board apply the de facto license NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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30 1 amendment framework in the Commission's Perry decision 2 and to use the Commission's recent decisions in St.
3 Lucie and Fort Calhoun as guidance. In the staff's 4 view, this means that the Board should do a discrete 5 and backward looking analysis of each completed agency 6 action discussed in FoE's Petition and Reply to 7 determine if any of those staff actions granted PG&E 8 any greater operating authority or altered the 9 license.
10 This analysis should carefully distinguish 11 any staff oversight activity which ensured compliance 12 with existing requirements, as the Commission held in 13 St. Lucie and Fort Calhoun that these actions do not 14 alter an NRC license or grant additional authority.
15 The Board should not apply Perry to licensee actions 16 or submittals as a licensee cannot amend its license 17 unilaterally.
18 Further, the Board should follow St.
19 Lucie, which rejected the theory of an ongoing and 20 continuing de facto license amendment process.
21 Instead, the Board, like the Commission in St. Lucie, 22 should consider only staff actions taken 60 days 23 before the Petition was submitted and should also 24 account for the Fort Calhoun holding that future 25 license amendments do not constitute de facto license NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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31 1 amendments or trigger hearing rights now.
2 Finally, the Board should follow 3 Commission precedent that limits the de facto analysis 4 to the terms of the challenged agency document. For 5 example, in SONGS, the Commission directed that only 6 the staff's Confirmatory Action Letter be analyzed to 7 determine whether there was a de facto license 8 amendment.
9 FoE's de facto claims are contrary to this 10 established legal framework. For example, FoE points 11 to PG&E's actions under 50.59 as support for a de 12 facto amendment. Further, FoE argues that the staff 13 is undergoing some ongoing and continuing amendment of 14 the license and that the Board must consider multiple 15 staff actions and licensee submittals to make its 16 threshold determination. This is not the legal 17 analysis directed in CLI-15-14.
18 Likewise, FoE and the staff have differing 19 views on the relevant facts referred to the Board. In 20 the staff's view, the Commission's referral only asks 21 the Board to apply Perry to the following discrete 22 actions. The staff's March 2012 50.54(f) letter, the 23 staff's Research Information Letter or RIL 12-01, the 24 October 12, 2012 letter associated with that RIL, and 25 an alleged staff approval of PG&E's UFSAR Rev 21.
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32 1 FoE argues that the facts to be considered 2 are much broader and include additional and subsequent 3 staff actions and licensee submittals and claims 4 raised in its Petition for review in the D.C. Circuit.
5 But this open-ended and wide ranging factual inquiry 6 is not contemplated by CLI-15-14.
7 The Commission did not ask the Board to 8 consider any subsequent staff activity or direct 9 additional briefing from FoE on its claims. Instead, 10 the Commission specified that the Board should rule on 11 FoE's Petition based on the filings submitted and a 12 single additional filing from PG&E and the staff 13 responding to FoE's UFSAR claims. This Board's June 14 2 Scheduling Order echoed this direction.
15 As explained in detail in the staff's 16 filings, the Board should deny FoE's Petition because 17 it has not identified a de facto license amendment 18 under Perry. FoE has not pointed to any staff action 19 that altered the terms of PG&E's license or granted 20 PG&E additional operating authority.
21 First, FoE has not shown that the staff's 22 50.54(f) letter constituted a de facto amendment.
23 That letter requested information and suggested that 24 in the future, a license amendment may be needed. It 25 did not make any determinations, approvals, or alter NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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33 1 the license. Staff request for information is an 2 oversight activity and future possible license 3 amendments do not constitute de facto license 4 amendments.
5 Second, FoE has not shown how the RIL 6 constitutes a de facto license amendment. As noted, 7 the RIL contains the staff's independent assessment of 8 PG&E's 2011 Shoreline Report and concludes that the 9 plant can safely operate despite the Shoreline Fault.
10 FoE claims the RIL made the Hosgri Earthquake the 11 bounding seismic event and that in doing so the staff 12 amended PG&E's license.
13 In support of this claim, FoE relies on a 14 differing professional opinion of an NRC employee.
15 But the RIL did not make the change FoE claims. And 16 the evaluations in the RIL did not alter PG&E's 17 operating license or authority. Instead, the staff's 18 assessment concluded that the Shoreline Fault was 19 bounded by the Hosgri evaluation, which is part of the 20 plant's existing design and licensing basis.
21 Third, FoE has not shown that the staff's 22 October 12 letter constitutes a de facto amendment.
23 FoE claims that this is a de facto amendment because 24 it specified a method of analysis where none was 25 previously stated. But the October 12 letter only NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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34 1 summarized the results of the RIL, stated that the 2 50.54(f) process would apply to evaluate new seismic 3 information, and stated that PG&E may update its UFSAR 4 pursuant to 50.71(e). None of these statements alter 5 the license or augment PG&E's operating authority.
6 Finally, FoE has not shown that the staff 7 approved PG&E's UFSAR or that any other staff action 8 related to the UFSAR constituted a de facto license 9 amendment. The staff agrees with FoE that the de 10 facto case law says it is the effect and not the 11 label. However, FoE has not shown how any action at 12 all, no matter what the label, constituted an approval 13 or an alteration of the license.
14 As noted in the staff's brief, the UFSAR 15 is a licensee document and the changes made to it were 16 done under 50.59 or pursuant to 50.71(e)'s reporting 17 requirements. Therefore, there is no de facto 18 amendment. Further, UFSAR Rev 21 did not as FoE 19 claims achieve the same results as PG&E's withdrawn 20 License Amendment 11-05. Instead, UFSAR Rev 21 21 included only clarifications of Diablo's existing 22 seismic design basis and licensing basis.
23 Therefore, FoE's Petition should be denied 24 because it has not identified a licensing activity 25 that triggers a Section 189 hearing. Because there is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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35 1 no de facto license amendment proceeding, there is no 2 need to determine whether the other threshold 3 question, whether the Petition meets 2.309.
4 However, the Board could also deny the 5 Petition on the ground that it does not meet 2.309.
6 FoE's Petition, instead of raising a genuine material 7 dispute on a license amendment, raises claims not 8 appropriate for litigation in a 189 hearing, including 9 challenges to the adequacy of the staff safety review, 10 challenges to PG&E's 50.59 evaluations, and claims 11 that the plant is not safe to operate. But those 12 claims, as noted, are not before this Board. Instead, 13 the Commission referred those claims to the EDO to be 14 considered under 2.206.
15 Finally, and as noted, FoE attempts to 16 broaden the scope of this proceeding by making 17 additional de facto claims in its Supplemental Brief.
18 But as indicated in St. Lucie, the late filing 19 criteria in 2.309 applies to de facto hearing 20 requests. Therefore, if FoE wishes to supplement its 21 August 2014 Petition with additional claims, it must 22 file a new or amended contention or a new Petition.
23 In conclusion, the staff respectfully 24 submits that the answer to both threshold questions 25 before the Board is no. First, FoE's Petition does NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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36 1 not identify a completed NRC staff action that 2 effectively amended PG&E's license or augmented 3 operating authority.
4 Second, FoE's Petition does not meet the 5 threshold requirements under 2.309 to be granted a 6 hearing. While FoE has concerns with the safe 7 operation of the plant and believes the license should 8 be modified, suspended, or revoked, those issues are 9 not before the Board. Thank you, your honors.
10 CHAIRMAN RYERSON: Right on ten minutes.
11 I mean to within two second.
12 MS. KANATAS: I practiced. I did cut it 13 back.
14 CHAIRMAN RYERSON: One quick follow-up 15 question, if I may. The NRC staff's position is that 16 the Board should not consider events that are not 17 referenced in either the August Petition or the, I 18 guess it was, October Reply. I take it your position 19 is also it would not make a difference if we did or 20 have you not reached a view on that?
21 MS. KANATAS: Correct, your honor. We do 22 not believe that those actions were referred to the 23 Board by CLI-15-14. But, as I think we noted in our 24 June 26 Brief, we provided a brief analysis of why 25 even if they were referred, they do not change the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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37 1 staff's position that FoE has not identified a de 2 facto license amendment.
3 CHAIRMAN RYERSON: Thank you. Mr. Ayres, 4 let me start, if I may, with you and we're talking 5 about the Supplemental Brief. You asked for the 6 opportunity to brief intervening developments if you 7 will. Your original Petition was back in August of 8 2014 and it wasn't referred to us until May.
9 So without deciding on the relevance of 10 any events, we decided to allow some brief briefing on 11 those subjects. But as a threshold matter, let me ask 12 you, did it occur to you as these developments took 13 place, while your Petition was pending in front of the 14 Commission, did it occur to you to try to bring them 15 to the Commission's attention in some form? Did you 16 do that? And if not, why not?
17 MR. AYRES: You're talking about the things 18 that happened after --
19 CHAIRMAN RYERSON: After your --
20 MR. AYRES: -- we filed our Petition?
21 CHAIRMAN RYERSON: -- original Petition.
22 Correct.
23 MR. AYRES: Well, we did not attempt to 24 bring them to Commission's attention separately. I 25 think the reason was that we -- two things really.
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38 1 One is that we did take the Revision 21 issue to the 2 D.C. Circuit, as you know. And that court is holding 3 the issue while you consider this.
4 The other is I think that we were in a 5 proceeding before the NRC with papers being filed and 6 then ultimately an oral argument. And that seemed to 7 be the appropriate place to bring up issues that in 8 our mind fill out the picture of the de facto license 9 amendment that we have argued has been undertaken.
10 CHAIRMAN RYERSON: I'm not -- I'm a little 11 confused.
12 MR. AYRES: I'm sorry.
13 CHAIRMAN RYERSON: There was no argument in 14 front of the Commission, was there?
15 MR. AYRES: Only the one that referred this 16 to you.
17 CHAIRMAN RYERSON: The Order, the 18 Commission's Order. But --
19 MR. AYRES: I'm sorry. I --
20 CHAIRMAN RYERSON: Yes.
21 MR. AYRES: I think I misspoke and said NRC 22 when I meant D.C. Circuit.
23 CHAIRMAN RYERSON: Okay. Okay. Okay. So 24 essentially, I mean, while the matter was pending in 25 front of the Commission, you did not attempt to update NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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39 1 the Commission. You had another -- I know you had a 2 proceeding in front of this Board as well and the 3 license approval and you have your D.C. Circuit 4 Opinion. I mean, can we be candid? It just didn't 5 occur to you to do that as well. To follow up with 6 the Commission?
7 MR. AYRES: Well, we had the matter in 8 front of the Commission.
9 CHAIRMAN RYERSON: Yes.
10 MR. AYRES: I think we felt it would fall 11 within the ambit of that.
12 CHAIRMAN RYERSON: Okay. But the specific 13 matters addressed in your Supplemental Brief to this 14 Board were not brought to the Commission's attention.
15 They were not raised in your August 2014 Petition --
16 MR. AYRES: No.
17 CHAIRMAN RYERSON: -- they were not raised 18 in your October Reply Brief.
19 MR. AYRES: Many of them hadn't happened by 20 then.
21 CHAIRMAN RYERSON: Right. Right. By the 22 Reply Brief. But while it was -- while the matter was 23 pending before the Commission, you could have brought 24 some of them to the Commission's attention. I forget 25 what the rule is in the Federal Courts of Appeals, but NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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40 1 there's some sort of rule for intervening authorities 2 or developments. I mean, you didn't attempt to do 3 that?
4 MR. AYRES: We didn't, no.
5 CHAIRMAN RYERSON: Okay. Let me ask you 6 this question, what -- and I, well I think I know the 7 answer to the question. I mean, it's a two -- the 8 first part of the question is, has the Commission ever 9 actually found a de facto license amendment itself?
10 I mean, I think the Perry case you referred to, I'm 11 not sure it actually came out ultimately finding a de 12 facto license amendment. It articulated the standard, 13 but has -- is there any Commission case that finds a 14 de facto license amendment?
15 MR. AYRES: I think the answer is no.
16 CHAIRMAN RYERSON: Oh, okay. So what would 17 you say your best authorities are? Either judicial or 18 Commission authorities? Which ones would you -- if we 19 only were going to read a few, which ones would you 20 say we should read?
21 MR. AYRES: I think you should read them 22 all.
23 CHAIRMAN RYERSON: I know you should. I 24 know we should, but what do you think are your best 25 cases?
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41 1 MR. AYRES: Which ones would be on the top 2 of the stack?
3 CHAIRMAN RYERSON: Right.
4 MR. AYRES: The First Circuit case, that 5 would be one of them. There's another Circuit Court 6 case -- I guess that one. And then you have now four 7 cases decided by the ASLB or the Commission on the 8 subject, including the San Onofre case you can still 9 read. And so there's that set of precedence to be 10 looked at.
11 I want to say one other thing about this 12 question of a de facto license amendment. If you have 13 an actual license amendment, there's an announcement 14 in the Federal Register, a proceeding begins, it is 15 all done according to a set of rules. The difference 16 between that and a de facto license amendment, at 17 least one major difference, is that the actions are 18 taken outside of that formal context and, therefore, 19 it's not surprising to find that it's difficult to 20 piece together the documents that show this pattern.
21 We believe that if you look at the group 22 of documents we've identified, what you see is a very 23 clear pattern. And so we would respond to Ms.
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42 1 amendment. The de facto license amendment is 2 evidenced by a variety of documents, which we've 3 referred to in our briefs and will refer to here as 4 well.
5 CHAIRMAN RYERSON: So, I mean, essentially 6 your view is that there can be a pattern or practice 7 of staff behavior that amounts ultimately to a de 8 facto license?
9 MR. AYRES: As the effect of --
10 CHAIRMAN RYERSON: Yes.
11 MR. AYRES: -- the series of acts which add 12 up.
13 CHAIRMAN RYERSON: How do we distinguish 14 between a de facto license amendment and oversight 15 activities then? I mean, is there a bright-line test 16 -- let me suggest this. Suppose Diablo Canyon, all in 17 favor of efficiency and being productive decides 18 unilaterally to increase the productivity of its plant 19 10 percent. They're capable of doing that. They go 20 right ahead and do that. They don't tell the NRC.
21 The first day after they do that, has there been a de 22 facto license amendment? I would say, not. Wouldn't 23 you agree?
24 MR. AYRES: Yes, I would, yes.
25 CHAIRMAN RYERSON: Okay. Suppose there's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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43 1 a letter a couple weeks later from someone at the NRC 2 kind of alluding to some awareness of this 10 percent 3 increase in power, is that a de facto license 4 amendment or is that a compliance issue?
5 MR. AYRES: Oh, I think it's not a de facto 6 license amendment.
7 CHAIRMAN RYERSON: Okay.
8 MR. AYRES: Because it -- now you're 9 positing what if there is NRC action.
10 CHAIRMAN RYERSON: Yes.
11 MR. AYRES: But the other prong of the test 12 is that it expands the operating authority of the 13 plant. And in that case that you posited, I don't 14 think it does expand that. That is implicit in the 15 license as granted.
16 CHAIRMAN RYERSON: Okay.
17 MR. AYRES: Because there's no limit in the 18 license --
19 CHAIRMAN RYERSON: Okay.
20 MR. AYRES: -- how much it may be run, that 21 I know of.
22 CHAIRMAN RYERSON: Say you get another 23 letter from the NRC congratulating Diablo Canyon on 24 its increased efficiency. Is that a de facto license 25 amendment?
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44 1 MR. AYRES: No. I think for the same 2 reason, it's not.
3 CHAIRMAN RYERSON: Okay. Okay. So I mean, 4 I --
5 MR. AYRES: The license doesn't address how 6 much you may run the plant. It allows you to run it 7 as much as you can.
8 CHAIRMAN RYERSON: Oh, I think there are 9 limits on the power. It might -- yes. There are 10 limits on the license on the power output you can 11 have.
12 MR. AYRES: Are we exceeding those limits 13 in your --
14 CHAIRMAN RYERSON: So if you exceed those 15 --
16 MR. AYRES: -- hypothetical?
17 CHAIRMAN RYERSON: -- limits -- you see, 18 this is where -- I'm not sure if there is de facto 19 amendment, what I'm looking for is a bright-line test 20 that we apply. When does the staff's failure to come 21 down with a hammer or rather maybe failure to come 22 down with a hammer strikes me as a compliance issue.
23 When is the staff's enthusiastic endorsement in some 24 fashion a de facto license amendment? Where is that 25 line? And is it possible to explain where it is?
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45 1 MR. AYRES: Let's start from your 2 hypothetical. Again, now we're assuming the plant 3 actually does operate at a greater, higher rate of 4 operation than permitted in the license.
5 CHAIRMAN RYERSON: Right.
6 MR. AYRES: And someone at the NRC staff 7 writes a letter to them saying good job.
8 CHAIRMAN RYERSON: Well, that's the highest 9 level. I'm --
10 MR. AYRES: That's your highest?
11 CHAIRMAN RYERSON: Yes. For the first 12 level -- first level was day two, the NRC doesn't even 13 know about this somehow. Forget the onsite person who 14 might know about it. But if that's purely a 15 unilateral action by PG&E, that is not a license 16 amendment. We're in agreement on that I take it.
17 MR. AYRES: Right.
18 CHAIRMAN RYERSON: And then you get into a, 19 to my mind, a fuzzier area where you might have some 20 correspondence that suggests that somebody was aware 21 of this, somebody at the NRC was aware of this, but 22 didn't do anything about it. And then, you get to a 23 further step where it's absolutely clear that they're 24 aware of it and excited about it, congratulating them 25 on it.
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46 1 I mean, at somewhere, I don't know where 2 the compliance issue turns into a de facto license 3 amendment. Is there a way to articulate a test for 4 that?
5 MR. AYRES: I think there is -- it's 6 inevitably a judgment call. I don't think there is a 7 bright-line test. But looking at the case we have 8 before us, I think it clearly passes the test on the 9 judgment basis.
10 In this case, the company was allowed to 11 operate a plant which had been shown repeatedly not to 12 meet the licensing basis. And it was allowed to do 13 that after first having asked for an amendment to the 14 license and then having been told by the NRC, no you 15 don't need to do that, instead do this.
16 I may have put the word instead in there, 17 but that's how it reads to me. So I think that both 18 the NRC involvement and the action, the increase in 19 the operating authority in this case clearly exceed 20 the threshold of any well adjudged principle there.
21 CHAIRMAN RYERSON: And one other, at least 22 one other question for you to clarify my understanding 23 of your position. Your initial Petition before the 24 Commission back in August of 2014 seemed to flatly say 25 that the Hosgri was not part of the licensing basis.
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47 1 Has your thinking on that evolved at all given the 2 history of the Board approval, the Appeal Board 3 approval, the Commission denial of the appeal from the 4 Appeal Board?
5 I mean, it was clear that way back, years 6 and years ago, whenever, you might dispute exactly 7 when. But years and years ago, the Hosgri Fault, not 8 the Shoreline Fault, but the Hosgri Fault was 9 extensively investigated and that was -- everyone 10 considered that as part of the licensing basis for the 11 plant, did they not?
12 MR. AYRES: Yes, your honor. It is clear 13 that Hosgri evaluation was part of the early, I'll 14 call it the early licensing. Initially, the plant --
15 the design basis for the plant was the DDE in terms of 16 vibratory ground motion. Partway through the building 17 of the plant, I'm sure I'm not telling you anything 18 you don't know already, the Hosgri was discovered and 19 a new analysis was done of that.
20 Our reading of the result of that process 21 was, and this is repeated in the safety analysis for 22 decades of the plant, is that the safe shutdown 23 earthquake for this plant is the DDE. Plus, for this 24 particular fault, the Hosgri evaluation -- well, the 25 Hosgri evaluation is full of assumptions and theory NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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48 1 that apply there, but may or may not apply in the 2 future in another place.
3 And we think that what's happened here 4 that's made this --that's really changed this license 5 is that what was a one-time exception, the Hosgri 6 evaluation, is now by the staff's action through 7 slight-of-hand become the safe shutdown earthquake or 8 this design basis earthquake for this plant by itself.
9 So instead of having to meet both the DDE 10 and the HE, which is the way the safety analysis has 11 read for many years, the way we read the changes that 12 have been made is that from now on a demonstration and 13 evaluation of a new seismic problem need only be 14 through the HE evaluation in order to be approved as 15 part of the plant's design basis.
16 CHAIRMAN RYERSON: Does the NRC staff want 17 to comment on that aspect of the history here? Mr.
18 Roth or whoever else would like to handle that?
19 MR. ROTH: Certainly, sir. Dave Roth for 20 the staff. As they've noted, the Hosgri evaluation 21 and the Hosgri Earthquake was something discovered 22 early in the plant's licensing. The staff's and the 23 applicant's and the Board's Orders at the time all 24 reflect that.
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49 1 Supplemental SER 7, the Double Designed Earthquake, 2 which was the original design submitted for the 3 construction permit, wound up being more conservative, 4 more restrictive than the later Hosgri evaluation.
5 But what's significant is that the Hosgri evaluation 6 has long been part of their licensing basis.
7 CHAIRMAN RYERSON: But is it accurate to 8 say it's a one-time exception? In other words, if 9 there were -- well, there is another fault. There's 10 the Shoreline Fault. Is that not evaluated under the 11 same standards as Hosgri if that's the licensing 12 basis?
13 MR. ROTH: Well, the licensing basis 14 evaluation was to get the operating license. That was 15 the reviewed plant's safety to determine as the 16 Appeals Board found that the plant was safe to 17 operate. The staff also found that the structure, 18 systems, and components would survive the evaluated 19 earthquake.
20 When the plant discovers anything new, 21 whether it be a flood or whether it be an earthquake, 22 then they evaluate to determine whether that affects 23 the operability of any structures, systems, or 24 components. But whether they come back with an 25 operability evaluation that through inspection the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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50 1 staff determined is correct or incorrect, doesn't 2 change their license.
3 CHAIRMAN RYERSON: All right. Let me ask 4 you the same question that I put to Mr. Ayres. Does 5 the staff have a bright-line test for the difference 6 between oversight and a de facto license amendment?
7 MR. ROTH: Well, the staff's bright-line --
8 Dave Roth for the staff. The staff's bright-line test 9 would be the test recently restated by the Commission 10 in St. Lucie. That, in the end, whether it's the 11 approval granted, one, greater authority than they 12 already had or two, otherwise altered the terms of the 13 original license.
14 CHAIRMAN RYERSON: Now, you don't dispute 15 that the staff effectively changed its mind about the 16 need for a license amendment? Is that a fair 17 characterization?
18 MR. ROTH: A better characterization would 19 be back to where the source of a license amendment 20 comes from. Pursuant to the Commission's regulations, 21 a license amendment request is when the licensee 22 desires to amend its license.
23 Whether the licensee decides later to 24 withdraw that as they may find it unnecessary, they 25 may find whatever information they wanted to be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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51 1 subsumed by different generic processes, it's not for 2 the staff's judgment to decide when they should amend.
3 Staff thinks the license needs to be amended, the 4 staff have orders to amend the license.
5 CHAIRMAN RYERSON: I mean, one argument 6 that Friends of the Earth makes that has I think a 7 certain intuitive appeal, I don't know if it has legal 8 merit, but it has an intuitive appeal, is that what 9 happened here was that in the case of Diablo Canyon, 10 a new fault was found in 2008, the Shoreline Fault.
11 And there was perhaps a consensus that the way to deal 12 with that appropriately was through a license 13 amendment, which of course would have triggered 14 hearing rights for interveners.
15 And then someone fortuitously, the 16 Fukushima incident came along and the Commission on an 17 across-the-board basis decided to solicit additional 18 information about all domestic reactors of their 19 seismic risks. And that the impact of that on Diablo 20 Canyon, which was a very positive impact everywhere 21 else, but the impact on Diablo Canyon, if I understand 22 their argument, is that it had a reduced impact or 23 reduced the concerns about safety.
24 Because instead of going through with a 25 full amendment process at that point, the PG&E kind of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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52 1 took comfort in the fact, well everybody's being 2 required to kind of look at things again in a less 3 formal process. And that, as a result, the safety is 4 not as well served at Diablo Canyon. May be well 5 served doing this process at all the other reactors in 6 the United States, but in terms of Diablo Canyon was 7 actually a reduction of safety concerns. What's your 8 response to that?
9 MR. ROTH: The staff would disagree that 10 it's having any lower safety standards in Diablo 11 Canyon.
12 MS. KANATAS: If I may, I would say that as 13 Mr. Roth specified, PG&E submitted LAR 11-05 under 14 50.90, which as Mr. Roth said is they desired to amend 15 their license in a particular way. That License 16 Amendment Request specified that it wanted to define 17 an evaluation process for newly identified seismic 18 information. It wanted to make the Hosgri Earthquake 19 the equivalent to the SSE, among other things.
20 So that was withdrawn and what ended up 21 happening was the generic process, as you said. But 22 that generic process was not to change the design 23 basis of Diablo. It was not to alter the license. It 24 was to request information and it specifically said 25 the evaluations submitted in response to the letter do NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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53 1 not revise the design basis of the plant.
2 It's only then after -- once the 3 Commission is able to review all the information that 4 is submitted, that we will then decide in what's 5 called Phase Two of this 50.54(f) letter whether a 6 modification, revision, or other action is warranted.
7 So I would say that for what they wanted to do, they 8 submitted a License Amendment Request. Then they 9 withdrew it because something else was happening 10 different. Not the same thing as FoE is attempting to 11 claim. That what's in UFSAR Rev 21 is the same thing 12 as what was in LAR Request 11-05.
13 CHAIRMAN RYERSON: So what you're saying is 14 the ongoing examination of the seismic issue at Diablo 15 Canyon could or could not, but could result in a 16 license amendment in the future at which point Mr.
17 Ayres would have a, presumably a hearing opportunity?
18 MS. KANATAS: Absolutely, your honor. And 19 that's the case for any of the power reactor licensees 20 that received the March 2012 50.54(f) letter. That's 21 exactly the purpose of 50.54(f) as stated in the 22 regulation.
23 CHAIRMAN RYERSON: Mr. Ayres?
24 MR. AYRES: Thank you, your honor. I think 25 there's -- this trying to put together the 50.54(f)
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54 1 process and the issues here throws a red herring into 2 the pot. The issue that we've raised is the amendment 3 to the license that's been made in order to allow the 4 plant to continue operating, even though based on its 5 past design basis it would not have been able to 6 operate. That occurred in Revision 21 UFSAR.
7 I agree with you about your general point 8 that somehow in this case, the 50.54 process manages 9 to extend even further the time of dealing with 10 whatever the Shoreline Faults can put out. But that's 11 not our case here. We recognize that some future 12 situation will occur there. We may like it, we may 13 not like it. Whatever comes of that process, we'll 14 deal with then.
15 What we're here to talk about today is the 16 process that already happened where the license has 17 been effectively amended in order to allow this plant 18 to continue operating given that the seismic hazard to 19 the plant has increased over what it was before.
20 CHAIRMAN RYERSON: Thank you. Mr. Repka, 21 we'll probably take a break after a few comments by 22 you.
23 MR. REPKA: Yes, I've been saving them up.
24 I would like to respond to three things. So don't let 25 me forget. One is your question about whether the HE NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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55 1 was a one-time event. Second was your hypothetical.
2 And the third is the LAR 11-05.
3 Let me take those in reverse order. LAR 4 11-05. I'd like to give a little more color to that 5 situation. The NRC regulations don't have a process 6 for updating new seismic information. The seismic 7 licensing basis is set at the time of licensing the 8 plant. So the criteria, the HE was clearly part of 9 that process. It wasn't a one-time exception.
10 It was -- the HE and the DDE both create 11 a set of seismic loads because of the assumption some 12 of the DDE seismic loads are more limiting than the HE 13 loads. All the equipment is required to be qualified 14 for both sets of loads. So the HE clearly creates a 15 -- involves a design response spectra.
16 If you're qualified for the ground motions 17 related to the HE or within the HE, you're going to be 18 qualified for the seismic loads. And the point is 19 it's not a one-time exception. It's clearly part of 20 the licensing basis in the sense that it helps define 21 the seismic qualification.
22 But there is no process when new 23 information comes up as to how to analyze that new 24 information. What process would be required to 25 determine whether or not we should make changes. So NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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56 1 when the Shoreline Fault was identified, PG&E already 2 had a process that no other licensee had.
3 It was called the Long-Term Seismic 4 Program. Which was a process for evaluating new 5 information. It was done at a period shortly after 6 licensing the plant. The company always maintained 7 the Long-Term Seismic Program. That's how the 8 Shoreline Fault was developed. And so there was a 9 process that was used at the time of the LTSP to 10 evaluate whether or not that confirmed the adequacy of 11 the licensing basis or whether some additional changes 12 needed to be made.
13 So PG&E's deal was, in the absence of a 14 clear process, we would like to adopt something 15 similar to the LTSP for evaluating the effect of that.
16 There was lots of controversy with the resident 17 inspector at the time about how to do that.
18 But it was a voluntary submittal on PG&E's 19 part to put that process into the license. Not an 20 admission that it needed to be there, but that in the 21 absence of a process, we will put a process into our 22 license to evaluate new seismic information forever 23 forward, whatever that information may be, we'll 24 analyze it through this chain of logic. And it was a 25 fairly sophisticated flow chart provided with the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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57 1 License Amendment Request.
2 Again, that wasn't an attempt to accept 3 Shoreline Fault as part of the design basis. It was 4 a -- it would have adopted a process where none 5 existed. When -- and it would have applied going 6 forward to all new information.
7 When Fukushima happened and the NRC 8 already had an open item in GSI-199 for Central and 9 Eastern United States plants to reevaluate their 10 seismic licensing basis, no different than the 11 situation PG&E was in with the Shoreline Fault. There 12 was no process there. There were some reevaluations.
13 The NRC looked at this and said, we'll 14 deal with all plants the same. Here's the process 15 we're going to use at this time to evaluate new 16 information. And we called it the Section 50.54(f) 17 process. We check, we're going to use certain 18 probabilistic methodologies, and in addition, there's 19 a Fukushima Task Force Recommendation to actually 20 include a new regulation in the future that would 21 require periodic updates to the seismic licensing 22 basis. But we'll deal with that in the future.
23 So given that we now had a process that 24 PG&E was folded into, the need to adopt in our license 25 going forward was obviated, at least for the time NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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58 1 being. So, again, it wasn't an implicit recognition 2 that we needed a license, it was something that would 3 have been desirable to the company at that time. And 4 we opted to withdraw it.
5 And so, therefore, it has not -- again, in 6 terms of the intuitive argument, it really is not that 7 situation. We're not -- it wasn't an attempt to 8 somehow change the licensing basis relative to the 9 Shoreline Fault. Yes, it did include a component to 10 clarify that the SSE would be the Hosgri going 11 forward. That wasn't something that was necessary.
12 But the key to the License Amendment Request was a new 13 process for evaluating information and we did not put 14 that in the licensing amendment.
15 Now, you raised the issue of the 16 hypothetical of at what point does staff inaction 17 become a de facto amendment. My view would be that 18 staff inaction can never become a de facto amendment.
19 The cases -- FoE says the best case is the First 20 Circuit case. The First Circuit case is the Citizens 21 Awareness Network case that I referred to earlier.
22 That was a very specific affirmative 23 action by the Commission in that case to authorize a 24 licensee to go ahead with new activities that were 25 specifically precluded under the existing license, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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59 1 major decommissioning activities. At that time, NRC 2 regulations required you to get a specific approval 3 before going forward with major dismantlement and 4 decommissioning. And so the Commission changed that 5 policy and issued an Order and said, in response to a 6 request from the licensee and said, go forward, you 7 can do that. So a very affirmative action.
8 So when you're talking about the case of 9 the NRC inaction to say the power upgrade, where the 10 license clearly says this is your maximum power, staff 11 doesn't do anything. Well, the remedy for a 12 stakeholder is to file 2.206 Petition to ask the staff 13 to do something. The staff sends a letter and says, 14 oh we think this is okay. That's not an approval.
15 The licensee is still operating outside the authority.
16 The remedy is still file a 2.206 Petition.
17 I think that they -- what would be 18 required for a de facto amendment, again, would be an 19 affirmative action by the NRC. And I think -- I would 20 submit that it really has to be a reviewable, APA 21 reviewable decision of the agency. That the argument 22 is that, that should have been a license amendment.
23 So in our -- in your situation in which 24 the NRC staff issues a letter that says, oh yes, good 25 job guys, way to go, I don't think that's a de facto NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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60 1 license amendment. I think that's, again, another 2 event that should trigger a 2.206 Petition saying you 3 can't do that under your license. If the NRC then 4 denies the 2.206 Petition, that's a reviewable denial 5 of a 2.206 where there should have been -- the 6 argument is there should have been a license 7 amendment.
8 That's where you could get a de facto 9 license amendment. I think that, again, it has to be 10 an affirmative act and similar to all three of the 11 cases in which de facto license amendment has even 12 been considered.
13 CHAIRMAN RYERSON: Thank you. Mr. Ayres --
14 MR. AYRES: Judge Ryerson, I know --
15 CHAIRMAN RYERSON: -- you look like you 16 want to say something before we go off bench for a 17 moment.
18 MR. AYRES: I only want to make an offer, 19 your honor. Which is, since the issue has been raised 20 of what the action was of the staff and what it needs 21 to be in order to accomplish a de facto amendment, I'd 22 like to offer when we come back to go through the 23 factual basis of our claim of action by the staff. We 24 have laid this out and we can walk you through it so 25 you get a full sense of what the facts are that you're NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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61 1 dealing with. If the Board would like us to do that.
2 CHAIRMAN RYERSON: Why don't we talk about 3 whether that would be useful over our break. And 4 either start with questions or start with that when we 5 get back. Let's reconvene promptly at 2:30.
6 (Whereupon, the above-entitled matter went 7 off the record at 2:20 p.m. and resumed at 2:34 p.m.)
8 CHAIRMAN RYERSON: Please be seated. I 9 tried to turn this water into wine, it didn't work.
10 All right. Welcome back. Mr. Ayres, we thank you for 11 your offer, but we will decline. I think the facts 12 are set forth in your briefs and we will use that as 13 our principal source. I have only one more question 14 and then I believe that Judge Arnold has a number.
15 If I understand Mr. Repka's statement 16 about 2.206, Mr. Repka, I think you were suggesting 17 that if the staff, say, wrote a letter congratulating 18 PG&E on exceeding its authorized power, that the 19 appropriate response would be to file a 2.206 Petition 20 and if that were ultimately denied, that would be a 21 judicially reviewable event and presumably would be 22 reviewable not under a discretionary standard, but 23 perhaps as a de facto license amendment. That the 24 court could take it up on that ground. And I'm 25 wondering, does the NRC staff agree with that analysis NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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62 1 of the procedural rights of a person whose 2.206 2 Petition is denied?
3 MR. ROTH: One moment, your honor.
4 MS. KANATAS: Your honor, I think before we 5 even get to that, I think that the hypothetical as you 6 postured it, I would potentially say that could 7 constitute a de facto amendment to the extent that it 8 would, if we basically said, yes we approve your 9 operation beyond what you're currently licensed to in 10 a letter that, that could be at least arguably under 11 Perry analyzed as an action that would authorize 12 additional authority to the licensee.
13 And that it would not be trying to enforce 14 existing requirements or not acting upon knowledge 15 that a violation had occurred. As I agree with Mr.
16 Repka that inaction, not a de facto but a letter 17 saying we're okay -- we're glad you're operating 18 beyond your maximum power seems to be at least 19 something that would be a question of -- a mixed 20 question of fact and law.
21 CHAIRMAN RYERSON: I think under my 22 hypothetical actually everyone might go to jail if 23 circumstances --
24 MS. KANATAS: That too. And that's --
25 CHAIRMAN RYERSON: -- but I was trying --
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63 1 MS. KANATAS: -- a problem.
2 CHAIRMAN RYERSON: -- to come up with 3 something.
4 MS. KANATAS: Sorry.
5 CHAIRMAN RYERSON: Mr. Repka, you want to 6 finally address the point?
7 MR. REPKA: Yes. I guess it depends on 8 what the letter says, but an exercise of enforcement 9 discretion if the letter is, yes you're violating your 10 license, but we choose not to take enforcement action 11 at this time, that's the enforcement discretion and 12 clearly an enforcement space. It's not an approval.
13 I can't imagine that there would be 14 enforcement discretion though that wouldn't have a 15 backend date and say, but we expect you to achieve 16 compliance by such and such a date. That's not a de 17 facto license amendment because it's still a 18 noncompliance and there's a recognition you're in 19 noncompliance.
20 CHAIRMAN RYERSON: All right. Judge 21 Arnold, some questions?
22 JUDGE ARNOLD: Sure thing. Talking about 23 the Hosgri Fault and whether it is or is not part of 24 the design basis, I went back and looked over some of 25 the adjudication history. Now, adjudicatory hearings NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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64 1 were held by an Atomic Safety and Licensing Board in 2 December 1978 through February '79 and one of the 3 primary subjects of the hearing was the evaluation of 4 the Hosgri Fault. This is documented in LBP-79-26 at 5 10 NRC 453.
6 Now, in a section of that Order that is 7 specifically titled The Hosgri Fault Earthquake 8 Potential, the Board stated, "The assignment of a 7.5 9 magnitude is acceptably conservative for the safe 10 shutdown earthquake." And that's on Page 479. So 11 clearly that Board was considering a magnitude 7.5 12 earthquake on the Hosgri Fault to be the design basis 13 safe shutdown earthquake.
14 Later in that same section on the Hosgri 15 Fault earthquake potential, the Board states, "The 16 Board concludes that a 7.5 magnitude earthquake is a 17 very conservative value for the safe shutdown 18 earthquake. We also find that the requirement imposed 19 by staff that a 7.5 magnitude earthquake be used by 20 the applicant in its seismic analysis is reasonable 21 and meets the regulatory requirements." That's on 22 Page 485.
23 Now concerning ground motion resulting 24 from a 7.5 magnitude earthquake on the Hosgri, "The 25 Board concludes that the 0.75G acceleration assigned NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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65 1 to the safe shutdown earthquake is an appropriate 2 value for the maximum ground acceleration that could 3 occur at the Diablo Canyon site and, thus, an 4 appropriate anchor point for the design basis 5 spectra," Page 494.
6 I also note that a significant portion of 7 the Order is devoted to a discussion made to plant 8 components specifically to accommodate that 7.5 9 magnitude earthquake on the Hosgri. And finally, the 10 Board makes the following findings on Page 507, three 11 of them.
12 One, "The Board finds that the Applicant 13 has demonstrated through appropriate analysis and 14 tests that Category One structures, systems, and 15 components will perform as required during the seismic 16 load of the safe shutdown earthquake." Two, "The 17 Board finds that the Category One structures, systems, 18 and components will be adequate to assure, A, the 19 integrity of the reactor coolant pressure boundary 20 and, B, the capabilities to shut down the reactor and 21 maintain it in a safe condition." And then finally, 22 "The Board finds that the necessary safety functions 23 will be maintained during the safe shutdown 24 earthquake."
25 Now this is a Licensing Board Order and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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66 1 Licensing Boards are certainly not infallible, but 2 following an October 1979 earthquake in the Imperial 3 Valley of California, joint interveners moved to 4 reopen the record. The Atomic Safety and Licensing 5 Appeal Board chose not only to grant that motion, but 6 also chose to receive new evidence themselves.
7 The reopened ALAB hearing took place in 8 San Luis Obispo in October 1980. The resulting Order, 9 ALAB-644, is 13 NRC 903. After considering previous 10 evidence from the Licensing Board and new evidence 11 concerning the 7.5 magnitude earthquake on the Hosgri 12 Fault as setting the safe shutdown earthquake, the 13 Appeals Board stated that they had "found no error 14 warranting corrective action" in the Licensing Board's 15 partial initial decision and they stated accordingly 16 the Licensing Board's partial initial decision 17 rendered in this case on June 12, 1978 and September 18 27, 1978 are affirmed.
19 Now Appeal Board decisions are binding on 20 Licensing Boards and that Appeal Board decision 21 confirmed the Licensing Board's considering a 7.5 22 magnitude earthquake on the Hosgri Fault to be the 23 safe shutdown earthquake. My question first for 24 Petitioners is, does the Licensing Board have the 25 authority to consider that the 1977 Hosgri Fault is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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67 1 not the safe shutdown earthquake?
2 MR. AYRES: Your honors, we are aware of 3 the decisions you're talking about obviously.
4 However, we don't read the record to say that the 5 Hosgri is the SSE. And that's for several reasons 6 First, because the Hosgri evaluation did 7 not evaluate all the SSEs required under the SSE 8 regulations. And, therefore, it doesn't meet the 9 standard review plan criteria for the SSE. We -- if 10 you look at our Petition at Page 54, Footnote 139, 11 you'll see a table from PG&E comparing the HE with the 12 SRP in support of LAR 11-05.
13 Second, although it's certainly true that 14 the 1978 Opinion equates the HE with the SSE, it is 15 not part of the current licensing basis and, more 16 important, it was issued six years before the plant 17 received its operating license. That was in 1984 and 18 was, therefore, superseded by the original FSAR in 19 1984, which says that the DDE is the SSE.
20 And then third, the 1981 Board appeal 21 decision, it too was superseded by the original FSAR 22 since it occurred earlier, which says that the DDE is 23 the SSE. So, I certainly would not deny that there is 24 a little confusion there. But what has been in the 25 license, in the FSAR, which is part of the licensing NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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68 1 basis since 1984, since the plant was licensed through 2 until Revision 21 is that the DDE is the safe shutdown 3 earthquake.
4 MS. OLSON: If I might, I might just add to 5 that, that the ASLB Appeals Board decision in 1984, 6 while the Board may have found that it would have been 7 acceptable to designate the Hosgri as the safe 8 shutdown earthquake, that is not, as my partner said, 9 what the FSAR said when the operating license was 10 approved. It said very clearly and says to this date 11 that the DDE is the equivalent to the safe shutdown 12 earthquake.
13 CHAIRMAN RYERSON: Okay. PG&E?
14 MR. REPKA: The licensing basis is more 15 than the FSAR. The licensing basis, even as defined 16 in Part 54, but more broadly other context includes 17 the entire docketed correspondence. The entire NRC 18 docket to the extent that, that goes to how did the 19 licensee, the applicant at the time, demonstrate that 20 its plant, its design meets the NRC's regulations and 21 acceptance criteria.
22 The licensing basis most certainly 23 includes the licensing hearing record, the ASLB 24 decisions, and the Appeal Board decisions. If the 25 Hosgri Earthquake is not part of the licensing basis, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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69 1 then the term licensing basis has no meaning.
2 The FSAR is a licensee document. It is 3 submitted after licensing. In addition to the 4 Licensing Board decisions that you referenced, Judge 5 Arnold, the NRC's Supplemental Safety Evaluation 6 Reports that we've cited in our initial Brief in this 7 case, SSER 7 talks to the Hosgri being the equivalent 8 to the safe shutdown earthquake.
9 Now at the time, Diablo Canyon was not a 10 Part 100 Appendix A plant. The very terms safe 11 shutdown earthquake, operating basis earthquake, those 12 were Part 100 Appendix A terms, so there was always a 13 little bit of confusion about how they would apply to 14 Diablo Canyon. But the point was always that Diablo 15 Canyon had its own licensing history, its own 16 licensing basis that included the three earthquakes, 17 the DE, the DDE, and the Hosgri.
18 Now the FSAR as recognized in SSER 7, it 19 carried forward a disagreement at the time that PG&E 20 maintained as to whether or not the Hosgri should be 21 considered the safe shutdown earthquake. But the 22 UFSAR did clearly include the Hosgri Earthquake as 23 part of the seismic analysis. The structural 24 qualification analysis was all based -- the reanalysis 25 was all based on the Hosgri Earthquake. All of that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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70 1 is referenced in the FSAR.
2 Yes, there was some confusion created by 3 the way the regulatory terminology should be employed 4 with the way PG&E maintained a position back then that 5 the safe shutdown earthquake ought to be the DDE. But 6 the fact of the matter is, it was licensed through the 7 Hosgri, all of the decisions point to that. The staff 8 safety evaluation points to that. It was included in 9 the FSAR.
10 And the only thing that was being done 11 relative to that in UFSAR Rev 21 was to clarify the 12 confusion and make it very clear and make the UFSAR 13 consistent with the licensing records. So it wasn't 14 a change to the licensing basis, it was a 15 clarification of the licensing basis and it's -- the 16 licensing basis is what it is. And the licensing 17 record and the Licensing Board decisions and the 18 Appeal Board decisions are clearly part of that.
19 JUDGE ARNOLD: Any comment from staff?
20 MR. ROTH: One additional comment for 21 endorsement of the Appeal Board's decision. In CLI-22 84-12, the Commission, while considering a rule making 23 action associated with earthquakes, provided the 24 following observation on Diablo Canyon. And I'm just 25 going to read real fast here.
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71 1 "The Commission notes that the important 2 safety issue for any plant located in a region 3 potentially affected by seismic activity is not the 4 location of the facility per se, but the probable 5 consequences of such location for the plant in 6 question. The Commission will not license a plant 7 unless it can make the statutorily required finding 8 that operation of the plant will not result in undue 9 risk to public health and safety.
10 Necessarily, this includes a determination 11 that the seismic design is adequate. Such a finding 12 is not undetermined by the circumstances that more 13 conservative criteria might have been applied to a new 14 plant. The issue is whether operation of the plant as 15 designed will result in undue risk to public health 16 and safety. The Commission's seismic criteria have 17 been fully addressed for Diablo Canyon and the 18 Commission has determined that the seismic design of 19 the plant presents no undue risk." ALAB-644, 13 NRC 20 903.
21 JUDGE ARNOLD: Thank you. I'm also 22 confused as the type of information that the seismic 23 design basis consists of. Does it include specific 24 faults or specific earthquakes on faults? Or is it 25 the ground motion at the plant caused by the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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72 1 earthquake?
2 MR. REPKA: The licensing basis is in the 3 end, it's the ground motions caused by earthquakes.
4 The ground motions are derived from various analyses.
5 Yet they're not specific in the end to a specific 6 earthquake because if -- at the point, if you look at 7 the Hosgri as the earthquake in the region that was 8 going to cause the maximum vibratory ground motions.
9 You use that as an analytical tool. You 10 come up with a set of ground motions or response 11 spectra and ultimately that's used to define the 12 seismic qualification loads for your safety related 13 equipment. The DDE was completely hypothetical 14 earthquake. The DE was a hypothetical earthquake.
15 So there's different ways to derive the 16 ground motions, but ultimately the licensing basis is 17 the ground motions and the seismic loads that are 18 based on those ground motions. After that's set, the 19 plant does not care where the earthquake comes from as 20 long as the loads it creates are less than the 21 licensing basis loads. Ground motions and loads.
22 JUDGE ARNOLD: So, when we talk about the 23 Hosgri being part of the design basis, we're 24 specifically saying the ground motions at the plant in 25 the 1977 evaluation?
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73 1 MR. REPKA: That's correct. Which has been 2 shown to be conservative. But the 0.75 GEP ground 3 acceleration at the plant and the related loads and 4 Diablo Canyon has always maintained that as the 5 licensing basis as a matter of fact. All equipment is 6 qualified for -- all safety related equipment is 7 qualified for the seismic loads, whether or not 8 they're related to the Hosgri or the DDE, depending 9 upon the assumptions.
10 JUDGE ARNOLD: And -- go ahead.
11 MR. AYRES: Your honor, just to comment on 12 the drift of this discussion. The DDE is -- as I 13 understand it, the DDE is indeed a hypothetical 14 earthquake. But it's basically one that's designed to 15 look at the ground motion at the plant and to be 16 applicable to ground motion no matter where it comes 17 from.
18 The Hosgri analysis, as the record shows 19 you, was done for a very particular reason. And on a 20 particular site. And it, indeed, incorporated some 21 very particular aspects that I don't think the 22 Commission would approve in a current day license.
23 For example, when the plant after analysis still 24 didn't quite achieve what was needed, there was 25 something called the tau factor added on. Which was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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74 1 essentially just giving another 20 percent margin of 2 safety.
3 I mean, that was a very arbitrary action 4 taken to make this particular earthquake acceptable 5 for this particular plant. So for that reason, trying 6 to use the Hosgri evaluation as a yardstick for any 7 new earthquake is really inappropriate.
8 MR. REPKA: May I respond?
9 JUDGE ARNOLD: Yes, you can.
10 MR. REPKA: None of the evaluations related 11 to seismic qualification are specific to the 12 earthquake source. They consider the 0.75G and then 13 from there, what was done in the structural 14 evaluations was to incorporate what, at the time, was 15 up-to-date assumptions about damping factors, material 16 strengths, and for example, material strengths, the 17 plant had been built so we now knew what the materials 18 were. We didn't need to use engineering book values 19 anymore.
20 And, therefore, yes, that may have 21 eliminated conservatism, but it also more accurately 22 reflected the plant as built. But the point is, the 23 analysis is not specific to the source of the 24 earthquake. The point is once you have the design 25 response spectra, you can calculate the loads. And NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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75 1 then that can be applied to any subsequent earthquake.
2 The NRC's regulations don't require an 3 evaluation of every regional fault. They look to 4 consider what the maximum ground motions at the site 5 will be. And, for example, there would have been 6 other regional faults considered at that time and that 7 have been considered ever since, such as the Los Osos 8 Fault or the San Luis Bay Fault.
9 And to say that somehow the Hosgri 10 evaluation can't be applied to that is ridiculous.
11 The fact is, the ground motions from those faults will 12 be less and, therefore, they are included within the 13 seismic design basis. They are bounded by the seismic 14 design basis. And that is the same conclusion that's 15 been used to apply to the more recent developments and 16 the new information.
17 JUDGE ARNOLD: Thank you. This question is 18 also for you. On Page 10 of the Petition, Petitioners 19 cite to a January 2011 PG&E report. And this is a 20 quote, "The magnitude of deterministic earthquakes for 21 the Shoreline Fault, magnitude 6.5, is less than the 22 magnitudes for the Hosgri, magnitude 7.1, but due to 23 the shorter distance, the ground motions from the 84th 24 percentile ground motions for Shoreline Fault are 25 greater than the updated ground motions from the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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76 1 Hosgri Fault source."
2 But the very next sentence said, 3 deterministic -- which Petitioners didn't cite, says, 4 "Deterministic analysis for the Hosgri, Shoreline, San 5 Luis Bay, and Los Osos Fault Zones, using conservative 6 estimates of the fault depths for each fault indicate 7 that the 84th percentile ground motions fall below the 8 1977 Hosgri Earthquake design spectrum." Now, that --
9 it sounds to me as though there's two Hosgri 10 evaluations. Do you know what the difference is?
11 MR. REPKA: Yes, sir. And this is in fact 12 addressed in the Declaration of Mr. Horstman that was 13 attached to our original Response. That includes 14 Figure ES-1 from the February 2011 Shoreline Fault 15 Report. What that report did and what it showed was 16 that if you take the new information about the Hosgri 17 and the new methodologies, what MS referred to the 18 Hosgri dip equals 80 curve in Figure ES-1, and you'll 19 see that attached to the Declaration, that's a new 20 Hosgri evaluation.
21 And it's a much lower response spectra 22 because we now know a lot more about the Hosgri than 23 we did back then. And so, yes, relative to the San 24 Luis Bay Fault and the Los Osos Faults, there are 25 differences. But none of those faults exceed the 1977 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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77 1 design basis Hosgri evaluation. So, yes, the short 2 answer is there's two different Hosgris, the 1977 3 Hosgri being the licensing basis and being much, much 4 more conservative.
5 JUDGE ARNOLD: So if you had a new 6 earthquake, it could result in ground motions greater 7 than the updated Hosgri while still being within the 8 design basis?
9 MR. REPKA: Correct.
10 JUDGE ARNOLD: Petitioners, on Page 11 of 11 the Petition, you cite Dr. Hardebeck, the geophysicist 12 who discovered the Shoreline Fault. And you state Dr.
13 Hardebeck concluded that PG&E and NRC are wrong to 14 rule out the possibility of a joint rupture that could 15 cause a much larger earthquake than either fault.
16 I looked through the reference and I 17 couldn't -- in fact, the only place I found any 18 reference to NRC in the document was in the list of 19 references. So, did Dr. Hardebeck conclude that or is 20 that your interpretation of what Dr. Hardebeck came up 21 with?
22 MS. OLSON: Your honor, I believe that's 23 our conclusion based on Dr. Hardebeck's research.
24 JUDGE ARNOLD: Okay.
25 MR. AYRES: And she testified before the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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78 1 Board.
2 JUDGE ARNOLD: Oh.
3 MR. REPKA: May I respond to that just 4 quickly?
5 JUDGE ARNOLD: Sure.
6 MR. REPKA: Just for your -- just for the 7 record, the September 2014 Central Costal California 8 Seismic Imagining Project Report addresses that as 9 well. Dr. Hardebeck's research for the USGS was 10 actually funding in part by PG&E. Dr. Hardebeck 11 suggested that the Hosgri and Shoreline Faults may be 12 linked.
13 And so in that report, PG&E assumed that 14 the two are linked and, again, that fault is bounded 15 by the 1977 Hosgri. So Dr. Hardebeck's research is 16 incorporated and considered in the analysis and is 17 also considered in the March 2015 process.
18 JUDGE ARNOLD: Thank you.
19 MS. OLSON: If I may just respond once 20 more. I think the discussion that we're having here 21 about whether or not the new -- the reanalyzed 22 earthquake hazard is bounded by the Hosgri is missing 23 a critical element. Which is whether or not the 24 reanalyzed earthquake hazard is also bounded by the 25 Double Design Earthquake spectrum, which is another NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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79 1 part of the seismic design basis for this plant that 2 we allege is being ignored by the NRC staff who is 3 sanctioning PG&E to continue to operate the plant 4 despite a continued demonstration that the reevaluated 5 spectra exceed that part of the seismic design basis.
6 MR. REPKA: Which I would respond to by 7 saying that's a -- I disagree, but that's a fine issue 8 to raise through the 2.206 process because it's 9 disagreeing with what the staff has decided.
10 JUDGE ARNOLD: Moving on. For Petitioners, 11 on Page 13 of your Petition, you have a two paragraph 12 quote from an NRC document explaining why the staff 13 denied the PG&E license amendment. And in Footnote 14 30, you cite to the NRC document from which that was 15 taken and you say that, that document was "basis for 16 DE denial of Diablo Canyon 1 and 2 LAR 11-05." Now, 17 I went looking for that, you gave an ML number, and it 18 looked like it was in fact extracted from a string of 19 emails. Is that correct?
20 MS. OLSON: That is my best recollection, 21 your honor.
22 JUDGE ARNOLD: Okay. And the emails were 23 discussing a draft, not a final document, correct?
24 MS. OLSON: I believe that is correct.
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80 1 draft was ever issued as an NRC document with that 2 quote still in it?
3 MS. OLSON: I believe you'll have to ask 4 the staff that, your honor.
5 JUDGE ARNOLD: Would staff happen to know?
6 MR. ROTH: Your honor, the staff of course 7 never made a finding or a denial or an approval of the 8 LAR. The LAR was withdrawn.
9 JUDGE ARNOLD: Okay. Does staff often 10 provide its official position only in draft form and 11 emails? Or is it correct to assume that this quote is 12 a final position of staff?
13 MR. ROTH: It would be incorrect to assume 14 that quote represented a final position of staff.
15 JUDGE ARNOLD: Thank you. Petitioners, on 16 Page 25 of your Petition, you state, "After discovery 17 of the Hosgri Fault, PG&E was permitted to analyze the 18 fault using a controversial one-time exception from 19 its licensing basis." Do you have -- know of any 20 document that actually says that this is a one-time 21 exception?
22 MR. AYRES: Well, first of all we're 23 speaking about is the Hosgri exception evaluation. Do 24 you have them?
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81 1 that what we mean by that is that the Hosgri 2 evaluation was specific to the Hosgri Fault. And to 3 apply those methods of analysis and the assumptions 4 used would require -- to apply those assumptions to 5 another fault zone, would require a license amendment.
6 And that is the change that has been directed and 7 subsequently approved by the NRC staff in the changes 8 that were made in FSAR Revision 21.
9 JUDGE ARNOLD: Do you know of any NRC 10 document that has any word saying this is a one-time 11 exception or this is limited only to the Hosgri or 12 basically says there are finite limits to what Hosgri 13 can be used for?
14 MR. AYRES: Do you have it?
15 MS. OLSON: Well, I can point you to the 16 FSAR language in Revision 21 which -- in Revision 20 17 rather, which described the site geology of the plant 18 very specifically describing all of the faults 19 analyzed to form the seismic design basis. And in 20 that section, the FSAR said only this about Hosgri, 21 PG&E was requested by the NRC to evaluate the plant's 22 capability to withstand a postulated Richter magnitude 23 7.5 earthquake centered along an offshore zone of 24 geologic faulting generally referred to as the Hosgri 25 Fault.
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82 1 The detailed methods, results, and plant 2 modifications performed based on this evaluation are 3 dealt with in Section 3.7, which deals with seismic 4 qualification of plant equipment. So it is our 5 reading of that language that what's colloquially 6 referred to as the Hosgri evaluation is specifically 7 applicable to seismic activity along the Hosgri Fault 8 Zone.
9 MR. REPKA: We are not aware of any 10 language that characterizes the Hosgri evaluation as 11 a one-time exception. In fact, we were surprised when 12 we saw that reference first made in the filing. It 13 clearly is part of the licensing basis. It was part 14 of the evaluation. Plant mods were based upon the 15 Hosgri evaluation. And it has always, again, been 16 used as the benchmark for seismic qualification of 17 safety related equipment along with the DDE.
18 FoE asserts that the methodology of the 19 Hosgri should be limited to the Hosgri, yet FoE wants 20 to take the methodology and assumptions of the DDE and 21 apply that to all new seismic information. And that 22 -- it makes no more sense to do that than it does to 23 limit the Hosgri to just the Hosgri. So, the fact of 24 the matter is, it's not a one-time exception. It 25 applies throughout to all equipment and it's part of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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83 1 the licensing basis.
2 MS. OLSON: If I may just have a quick 3 response. I would say that FoE doesn't want to do 4 anything. FoE is looking at the licensing basis for 5 this plant and sees two parts to the seismic design 6 basis, the DDE and the HE. And only one of them, with 7 the permission of the NRC staff, is being shown to be 8 met. And we dispute that fact as well, but that 9 appears to be the conclusion of the staff.
10 JUDGE ARNOLD: Let me ask PG&E. Would you 11 say that everything in the updated FSAR is design 12 basis information? Or only part?
13 MR. REPKA: No, I wouldn't say everything.
14 I think that the FSAR is part of the licensing basis.
15 It reflects, hopefully accurately, the licensing 16 basis. I think ultimately, the licensing basis is far 17 more than that. It is the licensing correspondence, 18 the docketed correspondence, it's reflected in the 19 staff safety evaluations, it's reflected in the 20 licensing decisions.
21 And so, certainly to the extent that 22 something in the FSAR is inadequately descriptive, you 23 have to look at the underlying documents to find the 24 licensing basis. And in this case, much is being read 25 into the fact that there was this lack of clarity NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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84 1 surrounding what is the SSE, what is the role of the 2 Hosgri. Well, that can be determined based upon the 3 underlying licensing history.
4 Nothing that PG&E puts into a UFSAR 5 subsequent to licensing can trump what the staff has 6 decided or what the Licensing Board has decided. It 7 would be a perfect example of what the Commission 8 said. We can't unilaterally amend our license. And 9 so the UFSAR needed some clarification, but that 10 didn't change the underlying facts of the licensing 11 history.
12 JUDGE ARNOLD: Just because something 13 appears in the FSAR doesn't mean it's design basis?
14 It might be?
15 MR. REPKA: Or licensing basis either, 16 that's correct. I mean, if it said that this safety 17 related equipment will be installed and it will all be 18 painted pink. I mean, we might consider that the fact 19 that the safety related equipment is required is part 20 of the design and licensing basis. We might not 21 consider the color pink to be part of that.
22 JUDGE ARNOLD: All right.
23 MR. AYRES: Your honor, this flexible 24 licensing basis is something that leaves anyone 25 outside of the fraternity to my right here rather NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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85 1 puzzled. Our understanding though is that the FSAR is 2 a part of the licensing basis. Therefore, if you make 3 a change in the FSAR, as was done in Revision 21, you 4 have changed the licensing basis for the plant. The 5 Atomic Energy Act says you have to have a hearing in 6 that instance.
7 Now, it's convenient for PG&E to find this 8 sort of accordion-like quality in the FSAR, but I 9 don't think the law is that flexible. It seems to me 10 that is in the licensing basis. It is part of the way 11 the plant was licensed that the company came forward 12 with this FSAR as they revised over time. And if it's 13 not part of the licensing basis, one wonders what 14 conceivable solid place is there to put your feet 15 about what the requirements are for these plants.
16 MR. REPKA: The license and the licensing 17 basis are not the same thing. The license is the --
18 MR. AYRES: We're aware of that.
19 MR. REPKA: -- license and includes 20 technical specifications. It cannot be amended 21 without a license amendment. The licensing basis is 22 something else. The UFSAR is something else, it 23 reflects the licensing basis. The UFSAR is a 24 controlled document. It's controlled by 10 CFR 25 50.71(e), by 10 CFR 50.59, and by other regulations NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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86 1 that control other aspects of it like 10 CFR 50.54(a) 2 on the quality assurance plan.
3 MR. AYRES: I don't think we need that 4 explained to us.
5 MR. REPKA: I want to explain the 6 regulatory process.
7 MR. AYRES: But I don't think we need --
8 MR. REPKA: You have equated the UFSAR --
9 MR. AYRES: -- it explained to us.
10 MR. REPKA: -- with the license, which it 11 is not. So a change to the UFSAR is within the 12 control of the licensee subject to the control 13 mechanisms, including 50.59. If FoE believes we have 14 not adequately followed 50.59 and made a change that 15 should have required an approval, that's an 16 enforcement issue that should be raised through 10 CFR 17 2.206. And the Commission's cases are very clear that 18 challenges to 50.59 changes need to be brought through 19 10 CFR 2.206. But the conflation of the license, the 20 licensing basis, and the UFSAR is simply not accurate.
21 MS. OLSON: If I may just follow on to 22 that. I'm looking at the operating license for the 23 facility. Which says in Section 1, Paragraph C, the 24 facility will operate in conformity with the 25 application as amended. And as I understand it, the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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87 1 Final Safety Analysis Report as updated provides a 2 substantial basis of the licensee's application for an 3 operating license.
4 JUDGE ARNOLD: I think we've gone into this 5 enough. Now I've got to do something from memory 6 here. One of the parties submitted the Revision 21 as 7 markup of Revision 20.
8 MR. REPKA: It wasn't us.
9 JUDGE ARNOLD: I have seen it.
10 MS. OLSON: Oh, I'm sorry. That was an 11 attachment to the pleadings.
12 JUDGE ARNOLD: Right. It's an attachment 13 to the pleading. And it was lined out and all that.
14 But one of the sections that was in Rev 20 15 specifically said seismic design basis and under that, 16 it listed the safe shutdown, the Double Design, and 17 the Hosgri. Now, that was Rev 20 and it's talking 18 about the Hosgri, so how is it this revision inserted 19 the Hosgri?
20 MS. OLSON: I would submit, your honor, 21 that what Revision 21 did was not change the fact that 22 the Hosgri evaluation was in or out of the design 23 basis. What it did was, it inserted Shoreline, the 24 Shoreline Fault Zone as a lesser included scenario 25 under the Hosgri evaluation, which changed the role of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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88 1 the Hosgri evaluation from one part of the seismic 2 design basis to determine whether the plant could be 3 safely shut down to the seismic design basis for the 4 purposes of determining whether the plant could be 5 safely shut down.
6 MR. REPKA: But it does not do that. It 7 clarified that Hosgri was part of the licensing basis.
8 It was already -- the Hosgri was already in the UFSAR 9 before Revision 21. It included the Shoreline Fault 10 as a lesser included case, but that didn't change the 11 role of either the DDE or the Hosgri evaluation.
12 Both are still part of the licensing 13 basis. All equipment must be qualified for the loads 14 of the DDE and the Hosgri ground motions. That 15 continues to be the case. All equipment to this day 16 meets that seismic qualification. And the plant is 17 capable of safe shutdown.
18 MR. AYRES: Your honor, just a last word on 19 this, I hope. We certainly would not disagree with 20 you that in Revision 20, both the DDE and the Hosgri 21 were included. But if the DDE continued to be 22 effective in Revision 21, the plant could not be 23 operated because all of the studies that have been 24 done by PG&E show that the Shoreline Fault would 25 exceed the DDE.
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89 1 So our point is that what's happened by 2 Revision 21 is that the Hosgri becomes the only 3 benchmark for what's acceptable. And, of course, in 4 the fourth of these seismic studies, we even find that 5 the Shoreline exceeds the Hosgri spectra. But for 6 purposes of this discussion, my point is simply that 7 if the DDE were still operative under Revision 21, the 8 plant would not be. And what happened here was to 9 alter the license in effect through the process of 10 changing the FSAR to allow the plant to continue to 11 operate legally when it could not meet the DDE.
12 JUDGE ARNOLD: Nick, you want to take over?
13 JUDGE TRIKOUROS: What a place to take 14 over. The -- let me start with the HE and the DDE a 15 little back further. When we talk about analytical 16 message and assumptions and inputs, are they part of 17 the design basis of the plant?
18 MS. OLSON: Yes.
19 MR. AYRES: Yes.
20 MS. OLSON: I believe the FSAR clearly says 21 when referencing SSER 34, that -- which evaluated the, 22 I believe it was the 1991 report on the Long-Term 23 Seismic Plan, that the seismic qualification basis of 24 the plant will continue to be the original design 25 basis plus the Hosgri evaluation including original NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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90 1 assumptions, inputs, methods, et cetera. I'm 2 struggling to find the exact language, but that's a 3 pretty close --
4 JUDGE TRIKOUROS: The -- so let me start 5 with methods. Is the -- are the methods, what I would 6 refer to as computer codes? I'll ask anybody who can 7 answer that question.
8 MR. REPKA: Let me start. I mean, I think 9 that last comment was a bit open-ended and lacked a 10 little clarity. The methods -- you need to 11 distinguish between two things. There's -- you need 12 to -- in doing the evaluation, you need to do a 13 seismic source characterization and do a calculation 14 of what the maximum vibratory ground motions will be 15 at the site. So the ground motion response spectra.
16 Then from there, you do the structural 17 evaluation and that includes certain assumptions about 18 structural damping. It includes assumptions about 19 material strengths. It included the tau effect that's 20 been referenced. But that's all on the structural 21 side of the evaluation once you know what the maximum 22 ground motions are.
23 And we're not disputing whether those are 24 part of the licensing basis. Certainly all of that 25 was thoroughly litigated back in connection with the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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91 1 Hosgri evaluation. But with respect to the issue of 2 the calculations of the ground motions. That we would 3 not consider to be part -- there is not licensing 4 basis ground motion prediction equation. There's no 5 specific methodology that we would consider to be part 6 of the licensing basis there.
7 The DDE was developed without any computer 8 codes. It was developed based upon expert 9 assumptions. The Hosgri curves were developed based 10 upon expert assumptions at the time and there were no 11 computer codes that could be reproduced today that 12 would be part of the licensing basis.
13 So all new seismic information needs to be 14 looked at by up-to-date methodologies and from there 15 you determine the set of ground motions. The ground 16 motions create the licensing basis acceptance criteria 17 as it were, the benchmark.
18 JUDGE TRIKOUROS: And so the front-end of 19 that, the determination of those ground motions can be 20 done with whatever the most current method available 21 for the day is?
22 MR. REPKA: I think there's no other way to 23 do it. That's clearly the best way to do it and 24 there's no other way. We could -- the Hosgri was 25 created by the NRC's consultant, Dr. Newmark, along NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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92 1 with PG&E's consultant, Dr. Blum. I -- and it was 2 created as an envelope of the two.
3 The two came up with their best guesses as 4 to what the their best estimates of what the maximum 5 ground motions would be. It would not be possible to 6 go to them today and say, recreate your methodology 7 and apply it to new information. Nor would it be a 8 good way to do it. There's a lot of new information 9 and new methods that have been developed since.
10 JUDGE TRIKOUROS: When we look at the 11 Shoreline Fault and we look at the, what you call the 12 CCCSIP --
13 MR. REPKA: CCCSIP, yes.
14 JUDGE TRIKOUROS: -- Report, when they 15 developed ground motion response spectra to compare 16 against the design basis events or the design basis 17 response spectrum, they were using different methods?
18 MR. REPKA: They were using --
19 JUDGE TRIKOUROS: To develop those ground 20 motions?
21 MR. REPKA: They were using, I believe, 22 what is referred to as the Next Generation Attenuation 23 Models. Yes. So they weren't using Dr. Newmark and 24 Dr. Blum, that is correct.
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93 1 the NGA Models or were -- do you remember?
2 MR. REPKA: Both.
3 JUDGE TRIKOUROS: Well, let me ask it this 4 way. Did the Shoreline Fault Attenuation Model and 5 the more current CCCSIP use the same attenuation 6 models?
7 MR. REPKA: Yes. I believe they did. Or 8 maybe slightly updated versions. But basically within 9 the same family of ground motion prediction equations.
10 JUDGE TRIKOUROS: With respect to the DDE, 11 does it require any additional structural load 12 additions? For example, local loads or I should say 13 accident loads or any other loads that they might 14 define for design?
15 MR. REPKA: There's many different loads 16 that are evaluated -- were evaluated as part of the 17 DDE and subsequently. As we've talked about, the DDE 18 used some assumptions that are very -- structural that 19 are very conservative relative to what was used in the 20 Hosgri.
21 And there were reasons for that. That the 22 structural damping factors from the DDE predated the 23 NRC's Reg Guide. So the more recent Reg Guide numbers 24 were used in the Hosgri. So some numbers are more 25 conservative in connection with the DDE.
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94 1 So in those cases, we used the more 2 conservative structural loads generated by the 3 combination of the DDE ground motions plus the 4 structural assumptions to qualify the equipment. But 5 having said that, if equipment is qualified for the 6 Hosgri and the Hosgri ground motions, if the ground 7 motions are less than the Hosgri, we can consider the 8 loads to be bounded by the Hosgri evaluation.
9 JUDGE TRIKOUROS: That would bound the DDE?
10 MR. REPKA: That would -- as a ground 11 motions, they would bound the DDE. But they would --
12 from a structural load standpoint, they don't 13 necessarily bound the DDE loads. And so that's why 14 the equipment is qualified for both Hosgri loads and 15 DDE loads. What we don't do is take DDE assumptions 16 and apply them to new data because those DDE 17 assumptions about loads were outdated even by the time 18 of the Hosgri.
19 JUDGE TRIKOUROS: So if I installed a 20 safety grade pump, it would be required to operate 21 under the DDE, under the HE, and under accident -- I'm 22 assuming the typical design accident loads and 23 possibly other loads?
24 MR. REPKA: DE, DDE, and Hosgri.
25 JUDGE TRIKOUROS: Yes.
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95 1 MR. REPKA: Yes.
2 JUDGE TRIKOUROS: Now, let me take that one 3 step further and ask about the containment building.
4 Is the containment building designed against the DDE 5 and the HE?
6 MR. REPKA: Yes.
7 JUDGE TRIKOUROS: And are there any other 8 loads there that you're aware of?
9 MR. REPKA: So, I'm turning to Mr.
10 Strickland here and he's telling me other additional 11 loads would be wind loads, tornado loads, high energy 12 line break loads, yes.
13 JUDGE TRIKOUROS: Simultaneous, not 14 concurrent loads? Those are not concurrent with the 15 earthquake or are they? They are?
16 MR. REPKA: Yes.
17 JUDGE TRIKOUROS: All right. So, there are 18 a whole series of loads and the DDE and the HE are 19 part of that? Okay.
20 MR. REPKA: Yes.
21 JUDGE TRIKOUROS: Now, so I find a new 22 fault, call it the Shoreline Fault and I go and I 23 evaluate it and I compare it to the HE, but not the 24 DDE. It is now uniquely different than the 25 containment building. It is different than safety NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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96 1 grade components. It is unique in that respect. Why 2 is that? And is that correct?
3 MR. REPKA: Why is it unique? You would 4 look at it and compare it to the HE ground motions and 5 if its ground motions are less, then necessarily the 6 loads will be less than what's been evaluated through 7 the HE. And then if the DDE loads separately are 8 greater, well the equipment -- the safe shutdown 9 equipment, I think I may have said earlier all 10 equipment, I meant the safe shutdown equipment, is 11 qualified for both the DDE loads.
12 JUDGE TRIKOUROS: So only for the 13 operability under a new fault, you would only use the 14 HE because you're telling me that the response 15 spectra, design response spectra for that event are 16 greater than the DDE?
17 MR. REPKA: The design response spectra for 18 the new event if they're less than the HE have been 19 previously considered and that would be for 20 operability, yes. Now, for new --
21 JUDGE TRIKOUROS: But as a general rule, 22 the HE bounds the DDE?
23 MR. REPKA: The HE from a set of -- as a 24 set of ground motions, bounds the DDE, correct.
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97 1 what you would evaluate a fault against?
2 MR. REPKA: Correct.
3 JUDGE TRIKOUROS: A new fault against?
4 MR. REPKA: For functionality as new 5 information. Now remember, we're dealing with new 6 information and the licensing and design basis are 7 what they are based upon the DDE and the HE. And so 8 the equipment is qualified for the design and 9 licensing basis.
10 So that -- the equipment hasn't changed, 11 the plant hasn't changed. You may have new 12 information. And so now from a functionality or 13 safety standpoint, you can look at that and say, it's 14 less than the HE, therefore, those ground motions have 15 been previously evaluated. The loads that correspond 16 to that have been previously evaluated. Therefore, we 17 are safe.
18 JUDGE TRIKOUROS: So in big picture then, 19 all of the analyses I did for all of those components 20 in the plant are still valid then because they're HE, 21 DDE, plus other loads, that the containment building 22 and other critical structures are HE plus DDE plus 23 whatever loads are associated with those?
24 MR. REPKA: Not plus, but separately.
25 They're qualified for the DDE and the HE, correct.
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98 1 JUDGE TRIKOUROS: HE and DDE --
2 MR. REPKA: Correct.
3 JUDGE TRIKOUROS: -- or HE and DDE 4 separately, plus the other loads. All right. And 5 then it's sufficient, you're saying, to look at the 6 new fault and say as long as the ground motion 7 response spectra from that fault are less than the HE, 8 then everything falls into line, all the ducks are 9 lined up in a row?
10 MR. REPKA: Right.
11 JUDGE TRIKOUROS: Is that what you're 12 saying?
13 MR. REPKA: And that's, again, from a 14 standpoint of showing functionality of the equipment.
15 That's correct. And all of that's being done is an 16 evaluation of outside the licensing basis because 17 you're looking at new information that wasn't being 18 considered in the licensing basis. You haven't 19 changed the licensing basis. You're just looking at 20 the safety basis for continued operation.
21 JUDGE TRIKOUROS: So when people talk about 22 the Double Design Earthquake and additional loads that 23 are associated with that, and I don't have the 24 reference in front of me, but I have seen discussions 25 along those lines, that is only valid for structure, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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99 1 systems, components, not for the evaluation of a new 2 fault?
3 MR. REPKA: That's correct. It goes to the 4 structural evaluation of the structure, system, 5 components that are needed for safe shutdown as 6 opposed to evaluating the ground motions created by 7 the seismic source.
8 JUDGE TRIKOUROS: So, therefore, if all of 9 this is correct, and I were to evaluate the ground 10 motion response spectra from a new fault against the 11 DDE, it would be fine because I've already evaluated 12 against the HE?
13 MR. REPKA: That's correct. Yes, that's 14 correct. I mean, the DDE loads would not go away and 15 so if those are more conservative, that would continue 16 to apply to the equipment. But, yes, if we show the 17 ground motions are less than the HE, the equipment 18 will be functional.
19 JUDGE TRIKOUROS: And that's consistent 20 with the statement that all design aspects of the 21 plant have to be evaluated against the DDE and the HE?
22 MR. REPKA: I would say that.
23 JUDGE TRIKOUROS: So, has anyone evaluated 24 the Shoreline Fault against the DDE and proved that?
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100 1 mean to evaluate it against the DDE? If you look at 2 the ground motion response spectrum, it may be greater 3 than the DDE. But if it's bounded by the HE, the HE 4 was evaluated subsequent to the DDE. The loads were 5 calculated and, therefore, the loads are not going to 6 exceed the HE loads.
7 Does anybody take the DDE structural 8 evaluation numbers or methods or assumptions that were 9 made pre-construction and try to apply or plug those 10 into a new ground motions, no. We do not believe 11 that's required.
12 JUDGE TRIKOUROS: Okay. And then that 13 explains then the other outlier, at least for me. The 14 plant had a DDE and DE at some point?
15 MR. REPKA: Only prior to licensing.
16 JUDGE TRIKOUROS: And was deemed, let's say 17 acceptable from a structural point of view. Along 18 comes the HE -- regardless of what you call it in 19 terms of SSE or whatever --
20 MR. REPKA: Right.
21 JUDGE TRIKOUROS: -- which didn't exist at 22 the time --
23 MR. REPKA: An irrelevant designation.
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101 1 accommodate the HE?
2 MR. REPKA: Correct.
3 JUDGE TRIKOUROS: It didn't need to be 4 structurally modified to meet the DDE, which it had 5 been built to.
6 MR. REPKA: Right.
7 JUDGE TRIKOUROS: But it needed to be 8 modified when the HE came along?
9 MR. REPKA: There were modifications at 10 that time, that's correct.
11 JUDGE TRIKOUROS: And that's because the 12 ground motion response spectra for the HE were greater 13 than the DDE?
14 MR. REPKA: Right. And then you'd look at 15 the spectrum and you see what equipment is susceptible 16 to ground motions in whatever frequency range and it 17 may have been that's there was particular structures 18 or components that needed modifications.
19 JUDGE TRIKOUROS: All right. So if the 20 Shoreline Fault is evaluated against the HE and now we 21 understand that, it was also evaluated against the 22 LTSP. What is the rationale there since that is not 23 a design basis?
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102 1 the LTSP because at the time the company believed that 2 the LTSP was the best available benchmark for 3 assessing the functionality of equipment. It had been 4 developed subsequent to licensing pursuant to the 5 license condition.
6 And so, again, in an operability or 7 functionality evaluation, you're not restricted to 8 licensing basis methodologies. You're just required 9 to use a best available method to show that the plant 10 is functional. And that was done.
11 There was some difference of opinion about 12 that and ultimately the operability was redone based 13 upon the Hosgri evaluation. But subsequent 14 evaluations and safety basis including what was the 15 interim evaluation that was included in the March 2015 16 report do use the LTSP.
17 But, again, that's not for a licensing 18 basis purpose. It's for assessing a safety basis 19 given that we're continuing to do reevaluations to 20 decide whether we need to make changes to the 21 licensing basis or the license or the plant.
22 JUDGE TRIKOUROS: All right. So let's talk 23 about the CCCSIP Report.
24 MR. REPKA: Okay.
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103 1 develops a ground motion response spectra for its 2 seismic sources, and those are compared against the 3 HE?
4 MR. REPKA: Those were compared to the HE, 5 that's correct. They were -- I alluded to this 6 earlier, it's the Figure ES-1, but -- oh, I'm sorry, 7 that's the Shoreline Report. Yes. But in the CCCSIP 8 Report, there was a -- I don't have that. But that 9 would have been compared against the HE.
10 JUDGE TRIKOUROS: Okay. And they were 11 found to --
12 MR. REPKA: The 1977 HE.
13 JUDGE TRIKOUROS: And they were found to be 14 acceptable?
15 MR. REPKA: Yes.
16 JUDGE TRIKOUROS: And the -- that was 17 documented and then the staff comes along in the 18 normal inspection process, the oversight process, goes 19 to the site and looks at that report? Or perhaps it 20 was given the report ahead of time?
21 MR. REPKA: The report was submitted to the 22 NRC for information. It was not developed at the 23 NRC's request, but it was submitted and the NRC in 24 December of 2014 documented it in an Inspection Report 25 on operability related to the findings of the CCCSIP NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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104 1 Report.
2 JUDGE TRIKOUROS: Okay. So the NRC is fine 3 with your -- with PG&E's evaluation of the CCCSIP 4 Report?
5 MR. REPKA: Yes. They did some things 6 differently, but ultimately came to the conclusion 7 that they concurred with the safe operation.
8 JUDGE TRIKOUROS: Now, in -- I don't see in 9 any of that additional authority.
10 MR. REPKA: No.
11 JUDGE TRIKOUROS: And I'm going to talk to 12 the other party in a moment. But what now happens?
13 The -- I have this operability determination that says 14 the plant can continue to operate safely. What does 15 the future then look like? Does the design basis get 16 -- does the FSAR get modified after a two year period 17 to reflect that?
18 MR. REPKA: Well, perhaps. We're in the 19 50.54(f) process. There's been the subsequent seismic 20 hazard's evaluation process. And, again --
21 JUDGE TRIKOUROS: Don't -- I'm sorry.
22 Don't take me there yet.
23 MR. REPKA: Okay.
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105 1 stream. Will the FSAR be updated in the future to 2 reflect the analysis done for the -- with respect to 3 the CCCSIP Report?
4 MR. REPKA: I don't know of any specific 5 plans to do that.
6 JUDGE TRIKOUROS: It won't be identified as 7 a lesser -- as something lesser than the Hosgri event?
8 I mean, it's the same situation, isn't it?
9 MR. REPKA: Yes. I mean, I suppose it 10 could be. I don't know of any plans to do that.
11 JUDGE TRIKOUROS: Is there any requirement 12 for it?
13 MR. REPKA: And I don't believe there's a 14 requirement to do that. Again, the report itself was 15 not prepared for the NRC. But the FSAR talks about 16 including -- reflecting new information and perhaps 17 that's something we would look at in the next UFSAR 18 update cycle. But, again, I'm not aware of plans to 19 do that.
20 JUDGE TRIKOUROS: So the -- really the only 21 reason for the NRC review was to make sure that your 22 assumptions and methods and inputs in evaluating the 23 CCCSIP were appropriate?
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106 1 evaluations based on new information. But they were 2 there to exercise their oversight with respect to the 3 continuing safe operation of the plant. And so that's 4 what the inspection report reflects.
5 JUDGE TRIKOUROS: I'm curious why the staff 6 asked PG&E to put the words into the FSAR that the 7 Shoreline Fault was a lesser event -- was a lesser 8 fault under the Hosgri.
9 MR. REPKA: You'd probably --
10 JUDGE TRIKOUROS: And I don't --
11 MR. REPKA: -- need to talk to the staff.
12 JUDGE TRIKOUROS: -- what it serves in all 13 this discussion we're having.
14 MR. ROTH: In the DPO, it was an issue of 15 concern and the information being provided there was 16 hoped to address the DPO.
17 JUDGE TRIKOUROS: So that was entirely 18 associated with the DPO? All right. Okay. Let me 19 give Mr. Ayres and company a chance here to respond.
20 MR. AYRES: Your honor, this is an 21 interesting exploration that you've done and it 22 explains how this process happened. Except for the 23 part that's relevant here today, it seems to me. The 24 -- what you've shown very well is that both the staff 25 and the licensee takes a view that the Hosgri is the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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107 1 bounding earthquake and so the only thing to compare 2 against is that. And if they can find that the 3 Shoreline Earthquake is within that envelope, then 4 everything's okay.
5 The point that we want to focus on here is 6 the point that I think the Commission asked you to 7 look at. And that is was the license changed de facto 8 to allow that analysis to be the only analysis? Or --
9 well, was it changed to do that? Because before that, 10 under Revision 20 and under the FSAR as it existed 11 before, PG&E had to show that the Shoreline Earthquake 12 would be consistent with, within the spectra of, the 13 DDE.
14 So, to write that essentially out of the 15 license, in our view, out of the FSAR is a license 16 amendment. And that license amendment was 17 accomplished, as you noted and staff has too, by this 18 dance between the staff and the company in which the 19 staff said, change the FSAR and the company did it and 20 then internally said, well we're okay on that, we 21 don't have to do a 50.59, because we know they're all 22 right with it. So, I would just focus on that issue 23 rather than taking issue with the things that you've 24 said about the analysis.
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108 1 thing to your question about whether the GMPEs are in 2 the license, I gave the language that was quoted --
3 that is quoted in the FSAR from the staff and SSER 34 4 reviewing the LTSP Report from the licensee in the 5 early '90s. I would note one other change in the FSAR 6 that provides some new methods of analysis, provides 7 some authorization to use new methods of analysis to 8 demonstrate satisfaction of the seismic design basis.
9 And that appears in Revision 21 for the 10 first time in a new section, 2.5.7.2, which 11 essentially says that any new or updated seismological 12 or geological information will be evaluated using the 13 methods used in the post-Fukushima process. So 14 they're -- the licensee with the NRC's permission has 15 now created for itself in its licensing basis a new 16 method to use. And I believe that would include the 17 ground motion prediction equations that keep changing 18 when they do these evaluations. For better or worse.
19 JUDGE TRIKOUROS: Okay. I saw 2.5.7.2. I 20 saw what you're saying, but I didn't think that 21 excluded having to do the Hosgri evaluation.
22 MS. OLSON: It doesn't include having to do 23 the Hosgri evaluation, no.
24 JUDGE TRIKOUROS: So it didn't exclude the 25 Hosgri, is what I'm saying. It didn't create a method NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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109 1 that bypassed entirely the design basis of the plant.
2 MS. OLSON: It's a different method than 3 was used in the 1977 Hosgri evaluation that forms part 4 of the seismic design basis of the plant.
5 MR. AYRES: Among other things, it's 6 probabilistic as opposed to deterministic.
7 MS. OLSON: And by the way, Petitioner's 8 view is not that these methods cannot be changed. Our 9 view is only that -- and frankly our view is not that 10 they shouldn't be changed. Our view is that if you're 11 going to change them, they're in the license and 12 they're part of the seismic design basis. You need to 13 have a Section 189a hearing -- opportunity for a 14 hearing.
15 JUDGE TRIKOUROS: Okay. Does the staff 16 want to comment on this or not?
17 MR. ROTH: Certainly, your honor. It's 18 David Roth. Just as a reminder, under 50.59, first of 19 course, if they do a bad 50.59, if the staff disagree 20 with it, that's an enforcement matter. But one of the 21 key issues would be whether or not this is a change to 22 a method used to establish the design basis of the 23 plant.
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110 1 commitment to use the LTSP has existed since 1991 in 2 the UFSAR or a commitment to use the new Fukushima 3 information to evaluate new information does not 4 retroactively change the design basis of the plant.
5 JUDGE TRIKOUROS: I mean, the general 6 statement that I could make is that if that statement 7 were not in 2.5.7.2, it would be fine. Having it in 8 2.5.7.2 seems benign. Because you still have to meet 9 the design basis of the plant. You have -- as Mr.
10 Roth has said, you haven't changed the design basis of 11 the plant. Do you have any comment on that?
12 MS. OLSON: I do, your honor. If you agree 13 with us that the statement cited in the FSAR from SSER 14 34 from the staff that the seismic qualification basis 15 of the plant is the original design basis plus the 16 Hosgri evaluation along with associated methods, 17 inputs, et cetera, then a change in those methods, 18 inputs, et cetera, as is performed by, in our view, 19 Section 2.5.7.1, then that is a change to the methods 20 used in the design basis.
21 MR. REPKA: I would look at 2.5.7.2 of the 22 UFSAR as simply a statement of truism. I mean, the 23 fact of the matter is that new seismic information is 24 being looked at in the Section 50.54(f) process using 25 new methods. I think that's the very point of it.
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111 1 And, again, the statement in the FSAR 2 doesn't change the license, it doesn't change the 3 methodology used to create the Hosgri or even the DDE.
4 It doesn't adopt a new method to be used going 5 forward, like the LAR 11-05 might have done. It 6 simply says that this particular evaluation is being 7 looked at in the Section 50.54(f) process and that, in 8 fact, is what's happening.
9 And if that process identifies a need to 10 create changes to the licensing basis, new maximum 11 vibratory ground motions, new plant mods, whatever, 12 that will come out of that new methods of calculation 13 that will come out of that process. In the meanwhile, 14 we're working under the current licensing basis.
15 And that doesn't change. I think, Judge 16 Trikouros, as you pointed out, the HE, the DDE don't 17 go away. And that's the basis to qualify equipment 18 and -- the safe shutdown equipment and ultimately 19 that's what matters.
20 JUDGE TRIKOUROS: Well, this is a good time 21 for a break, I think.
22 CHAIRMAN RYERSON: Yes. Let's take a break 23 and we'll take a 15 minute break this time and start 24 promptly at 4:00.
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112 1 off the record at 3:45 p.m. and resumed at 4:01 p.m.)
2 CHAIRMAN RYERSON: Please be seated. We 3 will continue with questions from Judge Trikouros.
4 JUDGE TRIKOUROS: Okay. I wanted to talk 5 now about the March 2012 letter and the, I guess it 6 was the March answer to the letter. Would I 7 characterize that correctly if I said it was operating 8 -- that, that whole process was basically operating in 9 parallel with, but had no impact on the design basis 10 at this time at least?
11 MR. REPKA: That's correct.
12 JUDGE TRIKOUROS: And what -- and the 13 outcome of it might be any number of things. You 14 mentioned it might be a design basis change, but it 15 might also be the basis for a process of evaluating 16 new earthquake faults. Is all of that possible to 17 come out of that?
18 MR. REPKA: Yes, all of that's possible.
19 I mean, it could be nothing. It could be fine. It 20 could be that a specific new criteria for ground 21 motions or -- so it could be licensing basis changes, 22 it could be plant modifications. But that's to be 23 determined based upon these new methodologies being 24 looked at in a probabilistic way that's not been 25 looked at before.
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113 1 JUDGE TRIKOUROS: And any write-up in the 2 briefs regarding the methods that were used in that 3 evaluation really have no bearing at all?
4 MR. REPKA: Yes, that's correct. The 5 methods used to calculate the current design and 6 licensing bases, those were what they were and the 7 licensing basis are what they are and the safety 8 related equipment is qualified to those criteria. And 9 so that continues to be the case. So the new methods 10 have nothing to do with that.
11 JUDGE TRIKOUROS: So even if the ground 12 motion response spectra coming out of that are greater 13 than design, as of right now it doesn't mean anything 14 because it's a parallel process. Is this -- and this 15 is the way it seems.
16 MR. REPKA: That's correct. And it's a 17 parallel process and it doesn't change the existing 18 license. It doesn't grant new authority. Even if it 19 were to demonstrate some change in risk that hadn't 20 been evaluated before, that can't be equated to a 21 change in operating authority. It's just something to 22 be evaluated and meanwhile, we have a clear and well 23 documented safety basis for continued operation.
24 JUDGE TRIKOUROS: Mr. Ayres, in your briefs 25 you seem to identify the fact that if a plant screens NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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114 1 in or screens out, I can't remember now which it was 2 --
3 MR. REPKA: In.
4 JUDGE TRIKOUROS: -- was it screens in, 5 that, that becomes in essence a de facto amendment 6 that the plant is operating with a condition that's 7 greater than its design basis. But that -- any 8 comments on that?
9 MR. AYRES: Well, that is what it means to 10 screens in. The Commission was clear on the 11 Commission's view, the Commission's staff's view is 12 that, that's okay. We'll just let that ride for 13 another couple or three or four years while we decide 14 whether to change anything.
15 JUDGE TRIKOUROS: Right. Now --
16 MR. AYRES: That seems to us to be frankly 17 outside the law.
18 JUDGE TRIKOUROS: And so that becomes an 19 enforcement issue.
20 MR. AYRES: It could be an enforcement 21 issue. That's -- I've said from the beginning. The 22 issue here in front of this -- today is not what 23 happens in that process. It's about what has happened 24 in the change in the license to amend the license on 25 the part of the staff over the last several years in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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115 1 order to allow the plant to continue to operate now.
2 So, I think there's -- I said it was a red herring.
3 It is a red herring to look at the Long-Term Seismic 4 Process.
5 JUDGE TRIKOUROS: Well, I'm still having a 6 little bit of a problem understanding where you are.
7 Every structure, system, and component in the plant is 8 evaluated against the HE, the DDE, and whatever 9 additional loads are required by the design basis of 10 the plant for those components.
11 The Shoreline Fault, for example, was 12 evaluated against the HE, but if you evaluate it 13 against the DDE, it would have higher -- the ground 14 motion response spectra would be higher than the DDE.
15 But it's still within the HE. Both the HE and the DDE 16 are design basis response spectra.
17 MR. AYRES: Your honor, the --
18 JUDGE TRIKOUROS: I'm trying to find where 19 the problem is here.
20 MR. AYRES: Right. I'm trying to explain 21 it as we see it. We know because there have been four 22 seismic reports since 2008 and each of them has said 23 that the plant or the newly discovered Shoreline Fault 24 would cause seismic activity, seismic hazard beyond 25 the DDE.
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116 1 So, yes, there's been analysis of how that 2 Shoreline Fault interacts with the DDE. And what it 3 shows is that it violates the DDE. It's shown it now 4 four times. So --
5 JUDGE TRIKOUROS: Well, let me interrupt 6 you. So going back to the beginning, however, the 7 plant sitting with the DDE finding the HE became 8 structurally modified to meet the HE. So the baseline 9 structural capability of that plant is not the DDE.
10 It ceased being the DDE after those structural 11 modifications were made to meet the HE. So if you 12 evaluate it against --
13 MS. OLSON: Respectfully, your honor, I 14 would disagree with that. And I think that's 15 evidenced in the Final Safety Analysis Report and 16 subsequent statements by the staff that were 17 incorporated into the FSAR. The seismic qualification 18 of the plant is the DDE plus the Hosgri. And those 19 are different calculations and they represent 20 different loads on SSEs.
21 And not -- it is my understanding, and I'm 22 wading into an area of technical expertise here which 23 I'm probably ill-equipped to wade into, but it is my 24 understanding from the documents that not all SSEs are 25 qualified to both the DDE and the HE. Only certain NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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117 1 SSEs required for safe shutdown are. And they're 2 qualified in a way that is different from the General 3 Design Criteria that were used for the DDE 4 qualifications.
5 JUDGE TRIKOUROS: All right. Well, I 6 thought we were past that, but we need to go back a 7 little bit.
8 MS. OLSON: Well, my point is only that 9 there are two bases upon which equipment needs to be 10 qualified in the plant. It's the DDE and the HE. If 11 it was just the HE, then why does the FSAR continue to 12 say that the safe shutdown earthquake for purposes of 13 demonstrating compliance with the General Design 14 Criteria 2 is the DDE?
15 MR. AYRES: Yet the licensee reads the HE 16 as the only criteria. Yes, they analyze --
17 JUDGE TRIKOUROS: That's not what he said.
18 MR. AYRES: Yes. He said it's within the 19 HE envelope and, therefore, safe. That's the 20 company's position ratified by the staff.
21 JUDGE TRIKOUROS: Well, the plant was 22 deemed unsafe when the HE was identified. And, 23 therefore, had to be modified, I'm sure at a cost of 24 a lot of money, to make it meet the HE requirements.
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118 1 the DDE, it's not the same plant that I'm evaluating.
2 MR. AYRES: Well, but calculation could be 3 done of whether the plant as it is -- how it will be 4 able to handle an earthquake from the Shoreline Fault, 5 the Los Osos, the other faults. And what's at stake 6 here is, is the plant capable of handling these new 7 earthquakes that we didn't know about even 20 years 8 ago?
9 And the question is what's the right 10 benchmark for that? The licensee maintains that the 11 benchmark is the HE. As long as the shaking doesn't 12 exceed the HE, everything's okay. But the studies 13 done by the licensee show, all four of them, that in 14 fact the shaking does exceed the DDE. Now, our point 15 is the DDE has been -- the DDE and HE together, each 16 separately, two tests to me, have been in the license 17 since 1984 until Revision 21. And under Revision 21, 18 what has been done is to make the HE the only 19 benchmark.
20 MR. REPKA: May I address that? So, what 21 FoE is doing is here is conflating the structural 22 loads and the ground motion. And the plant is 23 qualified for both the DDE and the HE. And 24 modifications were made to address the loads created 25 by the HE.
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119 1 So the plant -- so the equipment, the 2 safety related equipment, particularly the safety 3 related equipment for safe shutdown, is qualified for 4 the loads for both the DDE and the HE. In some cases, 5 the DDE loads are greater because of conservative 6 assumptions in that analysis. So those are 7 maintained.
8 Now, what FoE is saying is that, that's 9 the same as saying that you must meet the ground 10 motions of the DDE and the HE. And that's not what 11 we're saying. Ground motions may exceed the DDE 12 ground motions, but yet the seismic loads won't exceed 13 the DDE or the HE seismic loads. So those are two 14 different concepts. And what we're saying is if the 15 ground motions don't exceed the HE ground motions, we 16 can't possibly exceed the most conservative seismic 17 loads.
18 JUDGE TRIKOUROS: You have more to say 19 about this?
20 MR. AYRES: No, I think you look at the, 21 and I recommend that you do this, if you look at the 22 four reports in question, what you'll find is they say 23 that the plant can't meet DDE limits or spectra --
24 MR. REPKA: Ground motions.
25 MR. AYRES: -- based on an earthquake from NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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120 1 the Shoreline Fault.
2 MR. REPKA: But the HE didn't meet the DDE 3 ground motions either. So that's the whole point, is 4 they had to be translated into structural loads.
5 MR. AYRES: The HE was an exception.
6 MR. REPKA: It was what it was.
7 MR. AYRES: That's what it was.
8 MR. REPKA: And it create -- and it was 9 used to create a set of structural loads which were 10 used to modify the plant and it's been carried forward 11 as the basis for the seismic qualification of 12 equipment.
13 JUDGE TRIKOUROS: I don't know what the 14 word exception means here and it doesn't seem to have 15 a lot of meaning at all because the HE is the design 16 basis of this plant, right?
17 MS. OLSON: Along with the DDE.
18 MR. AYRES: The HE and the DDE.
19 JUDGE TRIKOUROS: Exactly. I'm saying it 20 is -- the HE is part of the design basis of the plant.
21 So is the DDE and, I guess, the DE is in there too.
22 MR. REPKA: Yes.
23 JUDGE TRIKOUROS: The LTSP is outside of 24 that envelope, but is a licensing basis event or 25 method.
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121 1 MR. REPKA: We don't credit it as a 2 licensing basis, but it is a margins assessment and it 3 verifies the adequacy of the licensing basis. And it 4 can be used as a -- it has been used as benchmark in 5 the functionality or operability determinations to say 6 that if you meet the LTSP, you're going to be 7 functional. That was approved by the NRC back in 8 post-licensing.
9 JUDGE TRIKOUROS: Okay. I didn't get one 10 closure before -- an operability determination, it 11 wasn't clear to me how that ended or did it sit on the 12 books as just an operability determination forever 13 basically? Was there some cataloging of that, that 14 had to take place in the future or something along 15 those lines? Is it --
16 MR. REPKA: I think there's an operability 17 determination on the books. And we take issue with 18 the fact that this new seismic information should be 19 addressed in operability space, because operability is 20 relative to the existing licensing basis and there's 21 no question there.
22 But setting that issue aside, yes, there 23 is no operability determination, but more importantly 24 now, we're in the 50.54(f) process. The March report 25 has gone in. That included an interim evaluation of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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122 1 safe operation as requested in the 50.54(f), because 2 the word exceedance is relative to the DDE in the 3 probabilistic -- using the probabilistic screening 4 methodology.
5 But so there is a safety basis that, that 6 I think at this point in regulatory space is probably 7 the appropriate process to evaluate this, not really 8 the operability process. The interim operation that 9 -- the interim safety determination is a matter of 10 record in the March report, it's still under NRC staff 11 review as far as I understand. But I think maybe 12 that's the appropriate place really to look at the 13 issue of ongoing safe operation.
14 JUDGE TRIKOUROS: But right now, the CCCSIP 15 Report is sitting in operability space and has been 16 reviewed -- it's been submitted to the Commission and 17 they're reviewing it. Is that really where --
18 MR. REPKA: The Shoreline was submitted to 19 the NRC. It wasn't submitted for review. I believe 20 that they are -- have considered -- said they would 21 consider it for evaluation for any relevance to 22 license renewal. I don't know that they've said that 23 they're going to review it specifically for -- in 24 current operation space. But I would defer to the 25 staff on that.
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123 1 JUDGE TRIKOUROS: And the question also 2 applies to -- for Shoreline and CCCSIP.
3 MR. REPKA: While they're conferring, I 4 would just add -- emphasize what I said earlier is 5 that both of those reports were inputs to the SSHAC 6 process as well, the data and the reports.
7 MR. ROTH: Your honor, it's Dave Roth for 8 the staff. With respect to the report, the staff 9 reviewed that for operability determination and are 10 also considering that through the 50.54(f) information 11 process.
12 JUDGE TRIKOUROS: So it's sort of in limbo 13 right now, quite frankly. In the sense we don't know 14 the final disposition.
15 MR. ROTH: If the final disposition at some 16 point would be an Order in the future, certainly 17 there's no Order that's come out from review of that 18 report. Yes, it's indeterminate right now.
19 MR. REPKA: I would add that too in 20 reference to this question, there's a staff February 21 20, 2014 letter we've cited in our briefs addressing 22 the 50.54(f) process. And it says among other things 23 that the staff considers the seismic hazard 24 reevaluation being performed pursuant to the 50.54(f) 25 letter to be distinct from the current design or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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124 1 licensing basis of operating plants. Consequently, 2 the results of the analyses performed using present 3 day regulatory guidance, methodologies, and 4 information would not generally be expected to call 5 into question the operability or functionality of 6 SSEs.
7 So, it's drawing the distinction between 8 operability processes that normally apply to degraded 9 and nonconforming conditions at the plant relative to 10 the current licensing basis and the 50.54(f) process 11 that's looking at new seismic information where there 12 is no requirement otherwise to update the seismic 13 hazards.
14 JUDGE TRIKOUROS: Are the seismic fragility 15 curves pretty much it? Or are they -- is there any 16 chance the CCCSIP Report or something or any new data 17 might changes those? Or are they fixed?
18 MR. REPKA: I think that the seismic 19 hazards have been updated through the March letter and 20 while there may be changes, I wouldn't expect those to 21 be -- there's not new work to necessarily change 22 those. The fragilities, which relate to the 23 capability of the equipment to survive and operate 24 given the seismic hazards, that aspect of the risk 25 evaluation is specifically being updated as part of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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125 1 the next phase of the 50.54(f) process. So we've 2 currently used fragilities based on LTSP fragilities, 3 but there will be new fragilities in that report in 4 June of 2017.
5 JUDGE TRIKOUROS: Oh that's -- so, okay.
6 So fragilities are part of the entire process?
7 MR. REPKA: Correct.
8 JUDGE TRIKOUROS: Okay.
9 MR. REPKA: But they weren't part of the 10 screening evaluations, which is what was just 11 submitted in March.
12 JUDGE TRIKOUROS: I guess the question is, 13 what benefit would there be if the HE were identified 14 as the SSE?
15 MR. REPKA: I think that there would be no 16 difference. I think that the point of seeking that 17 clarity back in 2011 really said more about what was 18 going on in terms of there was a DPO involving the 19 resident inspector at the time, clarity to the FSAR.
20 So there -- and how to handle new seismic information.
21 PG&E had the LTSP, so had its views as to how new 22 seismic information should be handled.
23 But in the vacuum, there was a need -- a 24 search for clarity. At this point, I don't think it's 25 a meaningful distinction. I think, again, it's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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126 1 terminology that derives from Part 100 Appendix A that 2 really wasn't the licensing basis of the plant. The 3 plant wasn't licensed to -- Appendix A didn't exist 4 back at the time the plant was licensed. It was just 5 evolving and so the terms were being developed and 6 there was some desire back then to sort of put it in 7 those terms. But that really wasn't the basis for the 8 license.
9 JUDGE TRIKOUROS: The SER Supplement, might 10 have been 34 --
11 MR. REPKA: Thirty-four would have been the 12 LTSP SSER.
13 JUDGE TRIKOUROS: Okay. That -- yes. That 14 identified, to my surprise, it actually identified the 15 HE as the SSE. So I don't understand the evolution 16 here, but --
17 MR. REPKA: And, again, as Judge Arnold 18 pointed out, certainly the Licensing Board, the Appeal 19 Board, the staff in SSER 7, had all referred to the HE 20 as the SSE. For whatever reason, the only people that 21 didn't was PG&E. But putting that aside, the SSE is 22 the maximum vibratory ground motion expected at the 23 site from the regional faults. That would be, at the 24 time, the HE.
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127 1 I've seen in various documents and I haven't made a 2 list and correlated them, but I've seen the design 3 basis of the plant as being described as the DE, DDE, 4 or HE. And other times I've seen it as and HE. But 5 it is or HE in some meaningful documents, I believe.
6 Just to make it clear. It is, what? It is and?
7 MS. KANATAS: It is and.
8 JUDGE TRIKOUROS: Okay.
9 MR. REPKA: It is and. I could speculate 10 that the or might be a reflection on the fact that in 11 some cases one is limiting with respect to the 12 structural loads and in the other case, the other may 13 be. So it's the more conservative. But from a --
14 strictly from a ground motion standpoint, the HE is 15 the most conservative. But to your question, I'd say 16 it's an and.
17 JUDGE TRIKOUROS: And again, with respect 18 to operability, the method that PG&E chooses to 19 determine operability is really up to PG&E with the 20 staff then providing an audit of that?
21 MR. REPKA: That's correct.
22 JUDGE TRIKOUROS: Is that the standard 23 process?
24 MR. REPKA: As it would be --
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128 1 --
2 MR. REPKA: -- in any case of a 3 nonconforming or degraded condition. It would --
4 which is by definition something that doesn't meet the 5 full licensing basis. That's not where we are because 6 the plant does meet the licensing basis. But you can 7 use a methodology and as long as that's an acceptable 8 methodology, but that's a matter for staff review and 9 if it's -- the staff doesn't like it, we would expect 10 to hear about that in enforcement space.
11 JUDGE TRIKOUROS: There's been some 12 terminology about design basis limits. And I can find 13 it in a minute, but what does it mean when a document 14 says neither the HE nor the LTSP contained design 15 basis limits, conditions, or assumptions used in the 16 bounding SSE?
17 MR. REPKA: I'm not sure what you're 18 reading from. And I'm not sure I understand that 19 statement.
20 JUDGE TRIKOUROS: That statement doesn't 21 mean anything to anybody here? It didn't mean 22 anything to me, but I did read it.
23 MS. OLSON: I would suggest that perhaps 24 what it's referring to, if I may, is the 10 CFR Part 25 50 Appendix A, General Design Criteria 2, design bases NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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129 1 for protection against natural phenomena.
2 JUDGE TRIKOUROS: Okay. Yes, that might be 3 true.
4 MS. OLSON: But those are the design 5 criteria for which, as far as I understand, the Hosgri 6 evaluation is not -- does not meet.
7 JUDGE TRIKOUROS: Okay. That might have 8 come out of the DPO Panel Report.
9 MR. REPKA: Perhaps. But to the last 10 point, clearly the Hosgri meets the design criteria.
11 That was something the plant was licensed to.
12 JUDGE TRIKOUROS: Yes.
13 MS. OLSON: With all due respect, I believe 14 the plant was licensed to the DDE's meeting of the 15 General Design Criteria and the Hosgri as an add-on to 16 that with some modified assumptions, such as an 17 increased damping factor and some different views 18 about the -- some less conservative views about 19 material strengths and the tau factor, which is 20 described in former Commissioner Gilinsky's --
21 JUDGE TRIKOUROS: I think we've covered 22 everything else that I wanted to cover.
23 CHAIRMAN RYERSON: Judge Arnold, any more 24 questions?
25 JUDGE ARNOLD: No.
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130 1 CHAIRMAN RYERSON: All right. Well, we 2 have finished everything we hoped to finish today.
3 Again, our job now is to take back everything that we 4 have. We'll have, of course, the transcript of all 5 this argument. And reach a decision.
6 In this case, in referring this matter to 7 us, the Commission has directed that we come up with 8 a decision within 140 days of the Referral Order, 9 which I think was May 21. In any event, the date that 10 we are supposed to have a decision by I think is 11 October 8. And we intend to comply with the 12 Commission's directions, so you will have a decision 13 either on the 8th or possibly well before that.
14 Again, on behalf of the Board, I want to 15 thank all the counsel today for your help. And we 16 will, again, go back and work on our decision. Any 17 comments, Judge Arnold, before we adjourn? Judge 18 Trikouros? Okay. Thank you very much. We're 19 adjourned.
20 (Whereupon, the above-entitled matter went 21 off the record at 4:30 p.m.)
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