ML15215A650
| ML15215A650 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 08/03/2015 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 50-247-LA, ASLBP 15-942-06-LA-BD01, NRC-1772, RAS 28110 | |
| Download: ML15215A650 (133) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Entergy Nuclear Operations, Inc.
Indian Point Nuclear Generating Station Unit 2 Docket Number: 50-0247-LA ASLBP Number: 15-942-06-LA-BD01 Location: Rockville, Maryland Date: Thursday, July 30, 2015 Work Order No.: NRC-1772 Pages14-145 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433
14 1 UNITED STATES OF AMERICA 2 U.S. NUCLEAR REGULATORY COMMISSION 3 + + + + +
4 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 5 + + + + +
6 ________________________________
7 In the Matter of: : Docket No.
8 ENTERGY NUCLEAR OPERATIONS, INC. : 50-0247-LA 9 (Indian Point Nuclear Generating : ASLBP No.
10 Station, Unit 2) : 15-942-06-LA-BD01 11 ________________________________ :
12 Thursday, July 30, 2015 13 14 Nuclear Regulatory Commission 15 Hearing Room T-3 B45 16 11545 Rockville Pike 17 Rockville, Maryland 18 19 20 21 BEFORE:
22 E. ROY HAWKENS, Chairman 23 GARY S. ARNOLD, Administrative Judge 24 SUE H. ABREU, Administrative Judge NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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15 1 APPEARANCES:
2 On Behalf of the U.S. Nuclear Regulatory 3 Commission:
4 SHERWIN E. TURK, ESQ.
5 ANITA GHOSH, ESQ.
6 BRIAN HARRIS, ESQ.
7 U.S. Nuclear Regulatory Commission 8 Office of General Counsel 9 Mail Stop 15 D21 10 Washington, D.C. 20555 11 sherwin.turk@nrc.gov 12 anita.ghosh@nrc.gov 13 brian.harris@nrc.gov 14 15 16 On Behalf of Entergy Nuclear Operations, Inc.:
17 PAUL BESSETTE, ESQ.
18 of: Morgan, Lewis & Bockius, LLP 19 1111 Pennsylvania Avenue, NW 20 Washington, D.C. 20004 21 pbessette@morganlewis.com 22 and 23 MARTIN ONEILL 24 of: Morgan, Lewis & Bockius, LLP 25 1000 Louisiana Street, Suite 4000 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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16 1 Houston, TX 77002 2 martin.oneill@morganlewis.com 3 and 4 WILLIAM GLEW, JR., ESQ.
5 of: Entergy Services, Inc.
6 440 Hamilton Avenue 7 White Plains, NY 10601 8 wglew@entergy.com 9
10 11 On Behalf of the State of New York:
12 BRIAN LUSIGNAN, ESQ.
13 of: New York State 14 Office of the Attorney General 15 Environmental Protection Bureau 16 The Capitol 17 Albany, NY 12224 18 brian.lusignan@ag.ny.gov 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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17 1 TABLE OF CONTENTS 2
3 Oral Argument by the State of New York 11 4 Oral Argument by Entergy 63 5 Oral Argument by NRC Staff 101 6 State of New York Rebuttal 121 7 Adjourn 132 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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18 1 P R O C E E D I N G S 2 1:03 p.m.
3 JUDGE HAWKENS: Good afternoon. We're 4 here for oral argument in a proceeding entitled 5 Entergy Nuclear Operations, Incorporated, Indian Point 6 Nuclear Generating Station Unit 2, Docket No. 50-247-7 LA.
8 My name is Roy Hawkens, I'm Chairman of 9 this Licensing Board. I'm joined on the Board by Dr.
10 Gary Arnold, whose technical expertise is nuclear 11 engineering; by Dr. Sue Abreu, whose technical 12 expertise is nuclear medicine and who also has her law 13 degree.
14 The Board is assisted by our law clerk, 15 Alana Wase, by the Board's IT expert, Andy Welkie and 16 by the Board's Administrative Assistant, Twana Ellis.
17 We'll be hearing oral argument from three 18 parties this afternoon, the Petitioner, State of New 19 York, the licensee, Entergy and the NRC staff.
20 Counsel for the parties, please introduce 21 themselves, starting off with New York?
22 MR. LUSIGNAN: Good afternoon, Brian 23 Lusignan for the State of New York.
24 JUDGE HAWKENS: And would you pronounce 25 your last name for me, please? I want to make sure I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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19 1 don't mispronounce it.
2 MR. LUSIGNAN: Lusignan.
3 JUDGE HAWKENS: Lusignan, thank you, sir.
4 Entergy?
5 MR. BESSETTE: Good afternoon, Paul 6 Bessette. At the table is Martin O'Neill also from 7 Morgan Lewis. And we have William Glew, an attorney 8 for Entergy.
9 And behind us are the employees of Indian 10 Point, Nelson Acevedo (phonetic), should we need to 11 defer to him any questions.
12 JUDGE HAWKENS: All right, thank you.
13 MR. TURK: Good afternoon, Your Honor.
14 JUDGE HAWKENS: Good afternoon.
15 MR. TURK: My name is Sherwin Turk and I'm 16 with the NRC Office of the General Counsel 17 representing the NRC staff.
18 With me at the counsel table are Anita 19 Ghosh and Brian Harris.
20 To my left are two members of the Office 21 of Nuclear Reactor Regulation who I may turn to during 22 the course of my argument.
23 Immediately to my left is Mr. Jerome 24 Bettle. He is with the Office of Nuclear Reactor 25 Regulation Division of Safety Systems Containment NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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20 1 Ventilation Branch.
2 And, to his left is Mr. Richard Guzman who 3 is with the NRR Division of Operating Reactor 4 Licensing.
5 Also, in the audience are other members of 6 the Office of Nuclear Reactor Regulation from the 7 Containment Ventilation Branch as well as the Division 8 of Engineering Mechanical and Civil Engineering Branch 9 and the Division of Risk Assessment, Probabilistic 10 Risk Assessment Licensing Branch.
11 It may be that during the course of 12 argument I need to turn to those individuals for 13 assistance, I hope you'll forgive me if I do that.
14 JUDGE HAWKENS: Thank you.
15 This proceeding involves a License 16 Amendment Request by Entergy for Indian Point Unit 2.
17 Entergy seeks permission to extend the frequency of a 18 containment leak rate test from once every ten years 19 to once every 15 years on a permanent basis.
20 New York filed a challenge to this license 21 amendment request raising two contentions.
22 First, New York claims the proposed 23 amendment poses a significant hazard to public health 24 and safety.
25 And second, New York claims the proposed NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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21 1 amendment is not categorically exempt from 2 environmental review.
3 Entergy and the NRC staff oppose New 4 York's hearing request. This Board has read the 5 parties' pleadings. We determined that oral argument 6 would assist us in resolving the admissibility of New 7 York's contentions.
8 And, on July 6, we issued an Order that 9 scheduled today's argument, identified the topics we 10 wish the parties to address and established the order 11 and allotment of time for counsel to present argument.
12 We'll hear first this afternoon from the 13 State of New York which will have up to one hour of 14 presentation time in which may reserve a portion of 15 that time for rebuttal.
16 We'll next hear from Entergy and finally 17 from the NRC staff, each of which will have up to 45 18 minutes of presentation time.
19 Counsel may remain in their seats at their 20 tables during the presentation of argument and 21 answering of questions from the bench.
22 During the parties' presentation, a Judge 23 may elect to pose a question to another party. And, 24 if that does occur, we'll endeavor to keep track of 25 the time of that question and of the other parties' NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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22 1 response so as not to detract from the presentation 2 time of the counsel who's time we're encroaching on.
3 Our Board's law clerk, Alana, will be 4 keeping track of presentation time. When five minutes 5 remain of presentation time, Alana will notify counsel 6 and the Board with the amber sign and when time has 7 elapsed, she will raise the red stop.
8 Arguments should take about a little over 9 two hours. We anticipate taking a short break about 10 midway through the presentation and that may coincide 11 with the completion of the initial presentation by the 12 State of New York.
13 Principally, for the benefit of counsel, 14 I want to alert you that this proceeding is being 15 televised on the internal NRC broadband channel 50 for 16 the benefit of NRC staff members who cannot be with us 17 in the hearing room today.
18 So, you are on notice that, certainly, 19 when giving your presentation and answering questions, 20 you'll be televised and at any other given time 21 pursuant to the whim of our IT expert, you may be 22 televised as well. So, heads up.
23 For the benefit of the public, and 24 especially for the stakeholders in the New York area 25 who could not be with us today, we have a listen only NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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23 1 telephone line so that they may hear the argument 2 live.
3 For individuals who cannot take advantage 4 of that listen only telephone line, we do have a Court 5 Reporter who will be completing an electronic 6 transcript. It will be included, accessible to the 7 public on the NRC website and that should be posted 8 within a matter of days.
9 For the benefit of the Court Reporter, as 10 well as for our several audiences here on the 11 telephone line and on the broadband television, we 12 would ask when making their presentations to speak 13 directly into the microphone.
14 With that, let me ask if counsel have any 15 questions or matters they want to raise before 16 proceeding with presentation.
17 New York?
18 MR. LUSIGNAN: Your Honor, I had one 19 preliminary question. I had submitted a couple PDFs 20 of charts for reference by the Board and I was 21 wondering if Mr. Welkie had those ready to display.
22 And I just want to confirm that there are 23 no objections from the parties. I had circulated them 24 yesterday and had not heard any.
25 JUDGE HAWKENS: Hearing no objection, the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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24 1 Board has no objection either to Andy Welkie putting 2 them on the screen and he'll put them on pursuant to 3 your instructions.
4 MR. LUSIGNAN: Thank you.
5 JUDGE HAWKENS: Anything else?
6 MR. LUSIGNAN: That's all from the State.
7 JUDGE HAWKENS: Entergy?
8 MR. BESSETTE: No, Your Honor, we're ready 9 to go.
10 JUDGE HAWKENS: Thank you.
11 MR. TURK: Nothing further, Your Honor.
12 JUDGE HAWKENS: Thank you.
13 Mr. Lusignan, we'll hear first from you.
14 Do you wish to reserve any time for rebuttal? And, if 15 so, how much time?
16 MR. LUSIGNAN: Yes, Your Honor, I'd like 17 to reserve 15 minutes for rebuttal, please?
18 JUDGE HAWKENS: Thank you.
19 You may proceed.
20 MR. LUSIGNAN: Good afternoon, Your 21 Honors. My name is Brian Lusignan representing the 22 State of New York, the proposed intervener in this 23 proceeding.
24 In this proceeding, Entergy seeks to 25 reduce the frequency with which it must conduct the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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25 1 only comprehensive tests of the Indian Point Unit 2 2 containment.
3 In the event of an accident, the 4 containment is the last line of defense preventing the 5 exposure of more than 17 million people living within 6 50 miles of Indian Point from exposure to the 7 uncontrolled release of radiation.
8 The State has proffered two contentions 9 supported by specific facts and legal arguments that 10 directly challenge the propriety of granting Entergy's 11 License Amendment Request.
12 It's first contention alleges that Entergy 13 has failed to consider plant-specific information that 14 makes Indian Point Unit 2 particularly ill suited for 15 reduced containment inspections.
16 And that NRC can, therefore not make the 17 required statutory and regulatory findings to grant 18 the amendment.
19 The second contention alleges that Entergy 20 has utterly failed to consider the environmental 21 impacts of the proposed License Amendment and that no 22 categorical exclusion to the National Environmental 23 Protection Act applies.
24 Because the State has met its initial 25 burden to show the existence of a genuine issue of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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26 1 material fact, the Board should permit the State to 2 intervene and set this matter down for a hearing.
3 In my argument this afternoon, I am going 4 to first clarify some of the applicable legal 5 standards at the contention admissibility phase.
6 I will then describe briefly the nature of 7 the License Amendment Request.
8 And, finally, I will go through each of 9 the State's contentions, describe the supporting 10 evidence and attempt to address the issues raised by 11 the Board in its Order scheduling this oral argument.
12 At this stage in the proceeding, the State 13 is required to set forth reasonably specific factual 14 and legal allegations to ensure that matters admitted 15 for hearing have at least some minimal foundation, are 16 material to the proceeding and provide notice to the 17 opposing parties of the issues that they will need to 18 defend against.
19 The intent of the of contention 20 admissibility requirements is to ensure the 21 identification of bonafide litigative issues. The 22 State is not required to prove the merits of its 23 contention and factual support need not be in formal 24 evidentiary form or as strong as the support that 25 would be needed to survive a Motion for Summary NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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27 1 Disposition.
2 The State may support its contention 3 through reference to the Application itself as well as 4 expert opinion, a document or documents or a fact 5 based argument or a combination of all three.
6 In fact, when the NRC amended the 7 contention admissibility standards, it made clear the 8 proposed intervener is not required to set forth its 9 entire case in its contention. But rather, it must 10 indicate what facts or expert opinions, be it one fact 11 or opinion or many, of which it is aware at that point 12 in time which provide the basis for its contention.
13 The State has met these standards for both 14 of its contentions.
15 The integrated -- in the event of an 16 accidental release of radiation from the containment 17 -- from the IP-2 reactor, the containment is the last 18 line of defense for the environment and members of the 19 public.
20 The containment is required to be 21 essentially leak tight in order to prevent the release 22 of radiation.
23 The containment and liner at Indian Point 24 Unit 2 were designed to operate for 40 years and have 25 already exceeded that design life.
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28 1 The Integrated Lead Rate Tests is the only 2 inspection that measures the overall integrity of the 3 containment including all inaccessible locations and 4 during accident conditions.
5 In fact, in 1995 when the NRC adopted the 6 performance-based standard for Integrated Leak Rate 7 Tests, it noted that there's no alternative to ILRTs 8 has been identified to provide assurance that the 9 containment structure would meet allowable leakage 10 rates during design basis accidents.
11 In particular, the integrity of the Indian 12 Point Unit 2 steel containment liner can only be 13 tested through these Type A or Integrated Leak Rate 14 Tests.
15 The License Amendment Request details 16 various components that tested by Type B or Type C, 17 local leak rate tests, but these are various 18 penetrations in the containment, piping, valves. They 19 do not test the overall integrity of the containment 20 liner.
21 The Integrated Leak Rate Tests can be 22 completed in about a day, if successful. And is 23 conducted when the plant is offline for refueling 24 anyway.
25 Entergy is currently required to conduct NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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29 1 a Type A test every ten years and would be due to 2 conduct the next test in 2016. Assuming it passes, 3 the test after that would be conduction in 2026.
4 The License Amendment Request seeks to 5 extend the time between tests to 15 years. This would 6 mean that the next test will occur in 2021 and then 7 not again during the expected 60-year operating life 8 of Indian Point Unit 2 which assumes that the license 9 renewal is granted which is the subject of a separate 10 proceeding.
11 The determination of whether to grant the 12 amendment requires a plant-specific analysis of the 13 risk.
14 As the State alleges in its first 15 contention, the License Amendment Request fails to 16 include such a plant-specific analysis.
17 JUDGE HAWKENS: Can you launch into what 18 precisely is deficient in the license Application, Mr.
19 Lusignan?
20 MR. LUSIGNAN: Yes, Your Honor, I will 21 provide a brief summary of the evidence that the State 22 has supported to submit contention NYS-1.
23 The State has provided information about, 24 one, historical events that affected the IP-2 25 containment liner.
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30 1 Two, recommendation by the Atomic Energy 2 Commission staff to increase inspections of the IP-2 3 containment liner throughout its operating life.
4 Three, recent visual inspection results 5 showing degradation, some of which has been attributed 6 to the historical events.
7 Four, consistent increases in the observed 8 leak rate during previous tests indicating that the 9 next test is expected to exceed the applicable 10 acceptance criteria.
11 Five, an increased risk in damaging 12 seismic events.
13 And, six, flaws in the probabilistic risk 14 assessment, including its generic rather than plant-15 specific analysis and its reliance of a flawed severe 16 accident mitigation alternatives analysis.
17 Taken together, these facts support the 18 State's overarching contention that the License 19 Amendment Request is deficient.
20 JUDGE HAWKENS: So, let's start with the 21 historical events, Mr. Lusignan. You say taken 22 together, but I think it's important for you to make 23 your case to show there's a genuine dispute you're 24 going to have to go into some detail and specifics 25 about why each event contributes cumulatively to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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31 1 making this deficient.
2 And, the historical events, the record 3 suggests that Entergy took corrective action in each 4 instance and that corrective action was satisfactory 5 both to their experts and satisfactory as well to the 6 experts in the NRC staff.
7 What, in the '68 liner buckling incident 8 or the '73 liner deformation or the '80 containment 9 flooding, what was deficient about the corrective 10 action that would prohibit Entergy from seeking this 11 15-year extension?
12 MR. LUSIGNAN: Your Honor, each time the 13 corrective actions were undertaken either by Entergy 14 or its predecessor licensee, Consolidated Edison, the 15 emphasis was on bringing the plant online ensuring 16 that conditions were sufficient that the plant could 17 continue to operate on a day to day basis.
18 There was very little consideration of the 19 long going impacts of these events. In fact --
20 JUDGE HAWKENS: Where in the record can 21 you show me that they didn't take into consideration 22 the long term impacts?
23 MR. LUSIGNAN: When you review the various 24 reports for the 1968 buckling event or the 1980 25 containment flooding event, you will see that the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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32 1 corrective actions involve steps to ensure that the 2 liner would continue to function on a day to day basis 3 as opposed to considering the long term impacts.
4 In 1973, in fact --
5 JUDGE HAWKENS: Were in the record does it 6 show they were just considering solely the short term 7 impacts? I didn't see that and if you could point it 8 out to me, I'd be grateful.
9 MR. LUSIGNAN: Sure, those documents are 10 cited in the State's petition.
11 JUDGE HAWKENS: Certainly, like any other 12 nuclear plant, they're anxious to get back online but 13 I didn't see anything that showed that their desire to 14 get back online outweighed their concern about safe 15 operation of the plant.
16 MR. LUSIGNAN: Well, I wouldn't 17 necessarily say that their concern to get the plant 18 back online outweighed the safe operation of the 19 plant, only that, at the time of these events, there 20 was not consideration of the possible long term 21 impacts and that no analysis has been conducted now of 22 those historical event to consider whether they may 23 have long term impacts.
24 In the 1973 event, in fact, as part of 25 their remedial action, NRC staff, or the predecessor NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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33 1 to NRC staff, the AEC staff, recommended that the 2 containment liner be inspected on a more frequent 3 basis than was then required.
4 At that time, it was required to be 5 inspected three times every ten years. And there's 6 been no consideration of why that recommendation 7 should no longer apply.
8 As far as the State is aware, that's the 9 only time that these historical events have been 10 considered in a long term perspective.
11 JUDGE HAWKENS: I'm wondering, though, 12 isn't that the initial recommendation? Wasn't that 13 superseded and consideration was given to that 14 implicitly by granting the ten-year, once every ten-15 year inspection interval and then the one-time only 16 15-year inspection interval?
17 So, I don't think it's fair to say that 18 was never, even reconsidered. It was, obviously, the 19 historical events were considered and that particular 20 recommendation was essentially superceded by 21 subsequent determinations by both Entergy and the 22 staff.
23 MR. LUSIGNAN: That's been the position 24 taken by Entergy. However, they haven't actually 25 evaluated whether that recommendation should no longer NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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34 1 continue to apply. In effect, they argue that the 2 silence in the License Amendment Request as to that 3 recommendation means that it was necessarily 4 considered, there's been no specific evaluation of 5 whether that recommendation to continue to inspect the 6 containment liner more frequently should continue to 7 apply to the containment liner at IP-2.
8 And, in those prior License Amendment 9 Requests, there was no hearing or adjudication on the 10 sufficiency of those License Amendment Requests. So, 11 it's also not entirely -- these issues have never been 12 litigated before.
13 JUDGE ARNOLD: Concerning that 14 recommendation, as I see it, that was made in 1974, is 15 that correct?
16 MR. LUSIGNAN: Early 1974, yes, Your 17 Honor.
18 JUDGE ARNOLD: And, let's see, Appendix J, 19 Option B was promulgated in 1995 which is 20 significantly after that recommendation.
21 So, in promulgating the Option B, the 22 Commission had the opportunity to exempt Indian Point 23 from use of that. But I have found no indication that 24 that was done.
25 In fact, it looks to me, let's see, 10 CFR NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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35 1 50 Appendix J, Option B,Section V.A's applicability, 2 in there, it just says the requirements in either or 3 both Option B III.A for Type A tests may be adopted on 4 a voluntary basis by an operating nuclear power 5 reactor licensee as specified in 50.54.
6 So, I see no indication that the 7 Commission intended to restrict the applicability. Do 8 you know of anywhere it's documented that there should 9 have been exceptions?
10 MR. LUSIGNAN: Sure. When the NRC adopted 11 this performance-based standard, which is Option B 12 under Appendix J, it made clear that the performance-13 based option was based on generic finding that, 14 generally, these extensions would not pose a 15 significant risk to the environment or to public 16 health.
17 However, they also recognized that a 18 plant-specific analysis of the risk posed by a 19 specific extension request still had to be conducted.
20 Additionally, in the industry documents 21 referred to by Entergy in License Amendment Request, 22 that's NEI-94-01 Revision 0 and Revision 2.A, they 23 both specify that plant-specific analysis of the risk 24 or specific requests for a license extension has to be 25 considered.
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36 1 And, the State's contention is that if 2 there were ever a nuclear plant where this extension 3 was not appropriate, it's Indian Point Unit 2 given 4 the specific events that have affected the containment 5 liner, the increasing leak rate results, the elevated 6 seismic hazards as well as its location in one of the 7 most densely populated areas of the country.
8 So, again, the 1995 performance-based 9 standard recognizes that plant-specific issues are 10 still relevant to whether a specific license extension 11 should be granted.
12 There is also evidence that these 13 historical events have affected the Indian Point 14 containment liner even years down the road.
15 In 2000, a visual inspection discovered 16 corrosion that was attributed to the 1980 flooding 17 incident in which 100,000 gallons of river water 18 flooded the IP-2 containment.
19 In some places, the liner had corroded to 20 a thickness that was .015 inches or about 1/667th of 21 an inch thicker than the minimum required thickness.
22 Additionally, in 1993, a few years 23 earlier, corrosion from that 1980 event was detected 24 in the weld channel and penetration pressurization 25 system. Various pipes were found to be corroded under NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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37 1 the containment base mat where they were essentially 2 inaccessible.
3 That was despite the fact that the 4 predecessor licensee had assured NRC that there was no 5 way these pipes could be corroded because they had 6 been pressurized greater than the pressure of the 1980 7 flood.
8 So, we have this evidence in the record 9 that the 1980 flooding event has continued to affect 10 the integrity of the containment liner as well as the 11 evidence that, at the time of the 1973 event, which 12 caused disruptions to a 60-foot swath of the 13 containment liner and broke about 50 percent of the 14 bolts in that affected area.
15 As part of the resolution of that issue, 16 there was a plant specific recommendation to monitor 17 this liner more frequently.
18 JUDGE HAWKENS: But, you're not able in 19 the most recent -- or the 2000, I think you indicated 20 they saw corrosion problems resulting from earlier 21 incidents. The record reflects they took corrective 22 action. Are you able to identify any problem with the 23 corrective action taken in 2000?
24 MS. LUSIGNAN: Again, the corrective 25 action was taken as short term way --
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38 1 JUDGE HAWKENS: Answer that question and 2 then you can follow up on it. Can you identify any 3 problem in the corrective action taken in 2000?
4 MR. LUSIGNAN: No, Your Honor, and the 5 State is not challenging the adequacy of the 6 corrective action taken following these previous 7 events.
8 However, degradation, corrosion, aging 9 effects are ongoing processes that can continue to 10 affect these plants and the containment liners as has 11 been seen in the discovery of corrosion 20 years after 12 the 1980 event.
13 And, the State's point is that the long 14 term implications of these events was not considered 15 in the License Amendment Request and, therefore, that 16 there hasn't been a sufficient plant-specific analysis 17 as to form a basis of that License Amendment.
18 JUDGE ABREU: Mr. Lusignan, you mentioned 19 that these are unusual, as compared to other plants, 20 I'm assuming, is what your comparison point would be, 21 is that correct? You've used the term that these are 22 unusual events.
23 MR. LUSIGNAN: That's right, Your Honor.
24 JUDGE ABREU: And, we've heard the 25 reference back to the Option B. And so, are you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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39 1 saying that there is something specific in the unusual 2 nature that you're saying is why that option doesn't 3 work right for this plant?
4 What makes this unusual compared to other 5 plants?
6 MR. LUSIGNAN: Sure. Well, to given an 7 example, the License Amendment Request relies on this 8 Calvert Cliffs Liner Erosion Analysis.
9 It's a procedure that was developed in 10 connection with the Calvert Cliffs Nuclear Plant for 11 determining whether a license extension -- or to 12 determine the effects of the corrosion on the liner.
13 And, in the Calvert Cliffs request, it was 14 -- they noted that in over 500 visual inspections, 15 corrosion had never been found on the liner.
16 In this case, we have the 2000 incident 17 where corrosion was specifically found on this liner.
18 Additionally, the Calvert Cliffs liner, 19 there's no evidence that it has these installation 20 panels which obstruct visual inspections of large 21 portions of the IP-2 containment liner.
22 JUDGE ABREU: That's Calvert Cliffs. I'm 23 saying in general, the applicability of Option B is 24 to, as it stated, basically everyone. So, what I'm 25 looking for is for you to tell me what's different NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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40 1 about Indian Point 2 that makes -- that connects with 2 your statement that that doesn't work right for Indian 3 Point 2 because it's unusual.
4 MR. LUSIGNAN: Sure. And there are --
5 JUDGE ABREU: All others, not just one 6 specific plant.
7 MR. LUSIGNAN: Of course. And the Calvert 8 Cliffs was just to provide one example of a different 9 containment liner.
10 But, the Indian Point Unit 2 is unusual or 11 even unique in a number of ways. The first being the 12 simple density of the population in the surrounding 13 area.
14 JUDGE ABREU: The plant physical 15 characteristics because we're talking about that liner 16 integrity. What about that makes this specific option 17 not make sense?
18 MR. LUSIGNAN: Well, additionally, the 19 previous Integrated Leak Rate Tests have shown an 20 ongoing trend towards surpassing the applicable 21 acceptance criteria.
22 If Mr. Welkie --
23 JUDGE ABREU: It's considered in this 24 option -- in the critique for it, correct?
25 MR. LUSIGNAN: It was not considered in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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41 1 the License Amendment Request. There was a staff 2 Request for Additional Information in response to 3 which Entergy submitted some materials.
4 JUDGE ABREU: You're saying the previous 5 ILRTs are not considered?
6 MR. LUSIGNAN: They are set forth in the 7 Application, but the --
8 JUDGE ABREU: That's not considered as 9 part of the analysis of Option B of meeting the 10 criteria for utilization of Option B, is that -- am I 11 understanding you correctly?
12 MR. LUSIGNAN: The fact that the results 13 are on a continuous trend towards eclipsing the 14 acceptance criteria was not considered in the --
15 JUDGE ABREU: I think you're looking at 16 the slope of the curve as opposed to the finding 17 versus other criteria is what you're saying?
18 MR. LUSIGNAN: That's right. And if Mr.
19 Welkie can --
20 JUDGE HAWKENS: May I interrupt? What 21 makes you say the trajectory, the trend, was not 22 considered by Entergy or by the NRC staff?
23 MR. LUSIGNAN: There's nothing in the 24 License Amendment Request to indicate that it was.
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42 1 NRC staff -- NRC must grant or deny the Application, 2 they failed to consider that analysis.
3 JUDGE HAWKENS: Data points are all there 4 and the Appendix J explicitly says the test results 5 must be compared with previous results to examine the 6 performance history of the overall containment system.
7 So, necessarily, if they're to comply with 8 the regulation, they're going to be considering all 9 the data points and the trajectory of those data 10 points.
11 MR. LUSIGNAN: The consideration, though, 12 was to say simply that it did not surpass the 13 applicable acceptance criteria in those previous 14 inspections.
15 JUDGE HAWKENS: That's a correct 16 statement, is it not?
17 MR. LUSIGNAN: That is a correct 18 statement. We will concede that.
19 If Mr. Welkie could display the first of 20 the charts that I submitted, though, you can see 21 visually the trajectory of these previous Leak Rate 22 Tests.
23 So, this is a simple visual representation 24 of the data that's set forth. It's reproduced in an 25 NYS Petition at page 17. You can see underneath there NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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43 1 the underlying source of the data.
2 And, this visually shows the fact that 3 each successive test has revealed increased leakage.
4 The State's theory is that this is evidence of ongoing 5 degradation affecting the integrity of the IP-2 6 containment.
7 Entergy has offered an alternative 8 explanation in response to a staff RAI. However, that 9 goes to the merits of this particular contention, not 10 whether it should be admissible in the first place.
11 JUDGE ABREU: The data points you're 12 showing are the "as found," correct?
13 MR. LUSIGNAN: The data points are "as 14 found" leakage, that's right.
15 JUDGE ABREU: Well, then your acceptance 16 criteria line, though, is "as left" acceptance 17 criteria, right?
18 MR. LUSIGNAN: Yes, Your Honor.
19 JUDGE ABREU: So, those are different 20 pieces of information?
21 MR. LUSIGNAN: Right, but the "as left" 22 acceptance criteria is the leak rate below which the 23 containment must be brought before the plant can come 24 back online after an Integrated Leak Rate Test.
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44 1 than the "as found" data? There are two different 2 types of data here is my point and I'm just confirming 3 that that is your understanding.
4 MR. LUSIGNAN: That's right, Your Honor.
5 The "as found," and this is one of the issues that was 6 raised by the Board, so perhaps, I'll move to that.
7 JUDGE ABREU: Well, let me just ask 8 another question then since we're talking about the 9 data points.
10 Since this is for the ILRT result which 11 encompasses also components of the findings in the 12 Type B and C testing, correct? It's not -- they don't 13 -- the ILRT isn't an isolated number that separately 14 the Type B and C testing does not relate to, there's 15 a combination of things here, right?
16 MR. LUSIGNAN: Correct.
17 JUDGE ABREU: Okay. So, have you looked 18 at how much the trend here could be due to Type B or 19 C problems as opposed to those other things that would 20 not be detected by Type B and C testing?
21 MR. LUSIGNAN: Respectfully, the overall 22 leak rate, it doesn't matter what parts of this 23 containment are leaking, the overall issue is that the 24 leakage has been increasing and if --
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45 1 there's something not being found if the test isn't 2 done? Is that your concern with shifting from 10 to 3 15 years is that we're going to miss something?
4 MR. LUSIGNAN: Right.
5 JUDGE ABREU: In a simple terms?
6 MR. LUSIGNAN: Correct.
7 JUDGE ABREU: We're going to miss 8 something? But, if this trend is caused by something 9 that we're finding with another test, has that been 10 considered in your look at this?
11 MR. LUSIGNAN: Yes, the Type B and Type C 12 tests, they do consider the valves and the 13 penetrations and there has been analysis to suggest 14 that they discovered a majority of leaks.
15 However, they do not assess the integrity 16 of the containment liner itself.
17 JUDGE ABREU: No, but when we get back to 18 what the ILRt does, it encompasses components of the 19 B and C testing within it. So, it contains the issue 20 you're worried about, which is the parts B and C 21 doesn't test but also B and C.
22 So, theoretically, my containment liner 23 could be perfect, but my ILRT could be going up 24 because of problems in penetrations and valves that 25 I'm detecting with other tests. Is that a fair NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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46 1 statement?
2 MR. LUSIGNAN: It's a fair statement that 3 some of these leaks could be detected in other tests.
4 In the event of an accident, however, it's 5 not going to matter whether the radiation is being 6 released through the containment liner or a valve.
7 JUDGE ABREU: The point is the Type A 8 test, the interval is extended where those other 9 things, those intervals are not changing. So, if it 10 is a penetration problem, a valve problem, those would 11 be detected at those more frequent interval tests.
12 MR. LUSIGNAN: Correct.
13 JUDGE ABREU: Okay.
14 MR. LUSIGNAN: And again, the Integrated 15 Leak Rate Test results have to be considered in the 16 context of the State's other evidence, specifically, 17 these historical events that have affected directly 18 the containment liner which is not tested by the Type 19 B or Type C tests as well as the other evidence that 20 the -- including seismic, increased seismic hazards.
21 JUDGE ABREU: But, just looking at the 22 trend, you brought out the chart, is that that trend 23 is not just looking at that issue that you just 24 pointed out, the issues with the liner itself, it 25 encompasses greater than that?
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47 1 MR. LUSIGNAN: That's right.
2 JUDGE ABREU: That is correct? Okay.
3 That that is your understanding?
4 MR. LUSIGNAN: Correct.
5 And, I would just like to go back to this 6 issue of the acceptance criteria. The data points 7 shown on that chart were from the "as found" test 8 results. A failing "as found" acceptance criteria is 9 .1 percent containment leak rate per day.
10 However, when an Integrated Leak Rate Test 11 is conducted, the plant is offline and the plant 12 cannot come back -- and, if the leak rate exceeds .075 13 percent containment rate per day, the plant cannot 14 come back online until corrective actions are taken 15 and the leak rate is brought below the .075 standard.
16 So, the State believes that there's 17 evidence that the leak rate may already exceed .075 18 and that Indian Point should not be permitted to 19 operate for five years in a condition which, if 20 discovered, would require it to shut down.
21 Essentially, the State believes that this 22 "as left" acceptance criteria of .075 would be a 23 failing test result.
24 JUDGE HAWKENS: Mr. Lusignan, you say 25 that's the State's belief. Can you point to a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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48 1 regulation that supports that?
2 MR. LUSIGNAN: Well, it's in the technical 3 specifications, Your Honor, that Entergy has requested 4 to amend that says, you know, .075 --
5 JUDGE HAWKENS: I understand that it says 6 that you cannot restart it until you are below the 7 .075, but is there anything which supports your 8 seeming assertion that the extension request cannot be 9 granted while you have the trajectory approaching that 10 .075 LA acceptance criteria?
11 MR. LUSIGNAN: Well, just, again, the 12 practical consequence of exceeding that criteria is 13 the plant remains shut down and the State doesn't 14 believe it's appropriate to continue operating the 15 plant in a condition which, if discovered, would 16 require it to shut down. That's just putting the 17 17 million people who live within 50 miles of Indian 18 Point at risk every single day.
19 JUDGE ABREU: Well, what is your 20 understanding of the ILRT limits versus when -- how 21 far you'd have to go beyond that 1.0 LA to get to the 22 point of having a significant problem with, let's say, 23 exposure to the population, do you have sense of what 24 that number is? What that order of magnitude is?
25 MR. LUSIGNAN: I don't have a specific --
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49 1 JUDGE ABREU: Safety?
2 MR. LUSIGNAN: Right, I don't have a 3 specific number in my head.
4 JUDGE ABREU: Or an order of magnitude 5 concept of any kind?
6 MR. LUSIGNAN: My understanding is that 7 there's a significant margin of safety in the 8 acceptance criteria for this test.
9 However, the NRC, when it adopted the 10 performance-based test in 1995, or the performance-11 based option, I should say, it specifically considered 12 the possibility of increasing that acceptance criteria 13 above that .1 percent containment rate per day, and it 14 rejected that idea because of the uncertainties 15 involved in the release of radiation in the event of 16 an accident.
17 So, the --
18 JUDGE ABREU: But, it is your 19 understanding that there is a large margin of safety 20 with that 1.0 number, it's not somewhere close to 21 something that would imminently change the risk?
22 MR. LUSIGNAN: My understand that there is 23 a margin of safety, and I can't speak to the specific 24 amount of that margin, however, it the margin that's 25 been maintained through the NRC regulations even as NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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50 1 the inspection period has been -- or frequency has 2 been decreased.
3 I did want to discuss the updated seismic 4 hazards analysis.
5 JUDGE ARNOLD: Could we just go back about 6 ten minutes before we get off the topic totally?
7 You're saying that the condition of the 8 containment and the events that have happened to the 9 containment have to be considered in this License 10 Amendment Request?
11 Now, in Appendix J under Option B in 12 Section III.A Type A Test, it states, Type A tests 13 must be at a periodic interval based on the historical 14 performance of the overall containment system as a 15 barrier to fission product releases.
16 Now, performance is how well has it done.
17 It doesn't say condition, it does say events that have 18 occurred to it.
19 When I look at how the containment has 20 done as a barrier to fission, I'm looking at all ILRT 21 results.
22 So, it seems to me that you're asking for 23 something even more strict, more restraining than the 24 rule calls for. How can you interpret that rule to 25 include the condition and past events that are not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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51 1 directly affecting how the containment has performed 2 historically?
3 MR. LUSIGNAN: I guess there are a couple 4 -- two real responses to that.
5 The first is that there is a separate 6 finding that the NRC must make that there is a 7 reasonable assurance of an adequate protection of 8 public health and the safety. And, that's kind of a 9 freestanding determination the NRC staff must make in 10 all License Amendment Requests.
11 Additionally, when it comes to the 12 specific requirements of Option B, again, there's a 13 recognition in Option B and in the supporting industry 14 documents that a plant-specific risk analysis still 15 must be conducted.
16 That is to say, if the NRC wanted to let 17 you extend your Leak Rate test based solely on the 18 fact that your prior test results hadn't exceeded the 19 "as found" criteria, they could have provided that in 20 the regulation instead, the amendment shall be granted 21 in the event it does not exceed .1 in the prior two 22 tests or however it wanted to phrase it.
23 But, it didn't do that. It specifically 24 allowed for the continued consideration of plant-25 specific event. And, this is a case where the plant-NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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52 1 specific events, as well as the plant's unique 2 location and the evidence that there is a greater risk 3 of seismic hazard make it particularly ill suited for 4 this kind of extension.
5 I'd like to ask Mr. Welkie to display the 6 second chart that I had submitted?
7 And, this is a chart of the updated Ground 8 Motion Response Spectra submitted by the licensee and 9 NRC staff in connection with Indian Point Unit 2.
10 This appears on page 16 of the State's Petition. And, 11 again, you can see the underlying source on that 12 document.
13 The blue line here is the licensee's Safe 14 Shut Down Earthquake Spectra. And, that's the 15 earthquake spectra that Indian Point Unit 2 was 16 designed to withstand, designed to be safely shut down 17 in the event of an earthquake within that spectra.
18 The red and the green lines are updated 19 Ground Motion Response Spectra prepared by the 20 licensee and NRC, respectively. And you can see the 21 key on that chart as well.
22 Now, ideally, the safe shut down 23 earthquake like would entirely bound or entirely 24 encompass the true Ground Motion Response Spectra.
25 And, as you can see from this updated chart, the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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53 1 Ground Motion Response Spectra exceeds the Safe Shut 2 Down Earthquake Spectra at virtually all frequencies 3 above I believe it's about 3 hertz there.
4 Now, this is relevant to whether the 5 Integrated Leak Rate Test frequency should be 6 decreased because one of the potential precipitating 7 events that could cause the release of radiation from 8 the reactor is an earthquake.
9 In fact, the Probabilistic Risk Assessment 10 prepared by Entergy's vendor purports to consider 11 seismic hazards in conducting its risk assessment.
12 However, that report was prepared more 13 than a year before this License Amendment Request was 14 submitted in October 2013. These updated graphs were 15 developed in early 2014. I believe this was submitted 16 in March 2014.
17 So, first of all, there's no way that the 18 License Amendment Request could have considered this 19 updated seismic hazard. Additionally, the License 20 Amendment Request does not purport to consider this 21 seismic data.
22 So, in the event of an earthquake that 23 exceeds IP-2's ability to shut down safely, 24 potentially causing the release of radiation, it will 25 be essential that the containment remain essentially NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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54 1 leak tight as it's designed to remain, and to continue 2 operating the plant for at least five years in a state 3 that would potentially allow the release of radiation 4 above acceptance criteria is another reason why the 5 NRC can't make that finding of reasonable assurance of 6 adequate protection of the public health and safety.
7 JUDGE ABREU: You mentioned that this 8 creates a significantly greater risk. How did you 9 determine the level of significance that the change in 10 the seismic studies would make in the calculation of 11 the Probabilistic Risk Assessment? That it's more 12 than what the licensee said is small or less than 13 small?
14 MR. LUSIGNAN: Right, Your Honor.
15 So, the licensee uses small or very small 16 to mean insignificant. However, the fact that the 17 risk of something occurring may be small does not mean 18 that that risk is insignificant when the potential 19 consequences are very large.
20 So, in a --
21 JUDGE ABREU: Do you have a regulatory 22 basis for your definition of significant?
23 MR. LUSIGNAN: Well, I'm not sure I've 24 offered a specific definition of significant. And my 25 --
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55 1 JUDGE ABREU: Well, when does something 2 cross the threshold from not significant enough to 3 become a significant hazard as opposed to those that 4 fall below a cut line?
5 MR. LUSIGNAN: Well, when you have a plant 6 like Indian Point 2 which is surrounded by 17 million 7 people and a variety of unique --
8 JUDGE ABREU: I'm asking for what -- how 9 you determine that line? There are, for example, 10 there reg guides that have a discussion of this which 11 were used by the licensee. Do you have something 12 parallel to that to say this is why we call it 13 significant compared to what the licensee did?
14 MR. LUSIGNAN: Well, the fact is, Your 15 Honor, that the licensee didn't evaluate this updated 16 seismic hazard to determine whether or not it was 17 significant or insignificant --
18 JUDGE ABREU: But, what I'm asking is, you 19 said that the old versus the new creates a 20 significant. The word significant comes into play 21 many times. So, what do you mean by significant and 22 what's the basis for that determination? A 23 calculation? Some regulatory reg, you know, some 24 regulation, some reg guide, somewhere that says your 25 significant -- how do we understand your use of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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56 1 term significant in perspective to the licensee's?
2 MR. LUSIGNAN: Right. And, the State's 3 position at the contention admissibility phase of this 4 proceeding is that Entergy or its vendor should have 5 considered these factors in evaluating the License 6 Amendment Request.
7 And, the fact that the State hasn't 8 offered a specific alternative standard or hasn't come 9 forward with a specific expert opinion is not required 10 at the contention admissibility stage. The State's 11 not required to prove the underlying merits of its 12 contentions at this stage in the proceeding.
13 JUDGE ABREU: Part of the requirements for 14 admissibility is that there has to be adequate 15 pleading. And, one of the challenges is to connect 16 assertions about, you know, you've got -- identified 17 some items, but then the State has made an assertion 18 that that word significant becomes significant.
19 And, saying it's significant, basically, 20 any one problem would be if all someone has to do is 21 say this is significant, virtually any contention 22 could end up admitted just because somebody says it's 23 significant and says, well, we'll just sort it out 24 later.
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57 1 help me say -- help me connect that dot from what you 2 found and how it becomes significant enough to say, 3 yes, this needs to go on for a more in depth 4 evaluation.
5 MR. LUSIGNAN: Right. And, the 6 significance is the various specific facts that the 7 State has set forth in its Petition.
8 Again, the State hasn't simply offered a 9 contention that says, you know, there's a significant 10 risk of unidentified leakage in the containment liner.
11 The State has specifically identified events that 12 would have affected the containment liner, it's 13 offered evidence that the --
14 JUDGE ABREU: You're saying that those 15 items are significant, that's an assertion as opposed 16 to saying these are items that might be. The State 17 has said these are significant.
18 So, I'm looking for, you know, we did not 19 get expert opinion. We didn't get a calculation. We 20 didn't get something that puts -- that we can put a 21 nail on that says significant.
22 MR. LUSIGNAN: Right. And, I can't give 23 you a specific standard that the State is relying on 24 nor is that required at this stage of the proceeding.
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58 1 that there's a reasonable assurance of adequate 2 protection of public health and safety.
3 And, under Option B, a determination that 4 the plant-specific risks have been fully evaluated in 5 this case.
6 The State has offered a variety of 7 evidence that that has not occurred here.
8 JUDGE ABREU: So, would your rule for 9 contention admissibility be that if you can point to 10 a factor that affects the technical specs or a request 11 to alter them that could conceivably be in the 12 negative range as opposed to the positive range of 13 risk, all I have to do is find something that could be 14 a little bad, that's enough for a contention 15 admissibility? It just has to kind of look bad?
16 Or what -- as opposed to saying, I have to 17 have some evidence that is a significant risk under 18 terms the NRC has defined or something parallel.
19 MR. LUSIGNAN: Well, when the NRC adopted 20 the new -- these pleading standards, it did say a 21 valid Petition can be based on one fact, one expert 22 opinion or many expert facts and expert opinions.
23 The State has offered evidence of 24 historical events specifically affecting the 25 containment liner, has shown that the containment NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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59 1 liner is not tested by Type B or Type C tests --
2 JUDGE ABREU: We're aware of the items 3 you've --
4 JUDGE ARNOLD: Can I ask him basically the 5 same question with a little bit more specific?
6 10 CFR 50.59 has to do with license 7 amendments and when you don't require a license 8 amendment. And, basically, one of the requirements to 9 avoid a license amendment is that there has to be less 10 than a significant increase in the risk. But, it 11 doesn't say what a significant increase is.
12 However, the statement of considerations 13 in the Federal Register Notice for that 10 CFR 59 goes 14 into a long discussion and what it boils down to is it 15 is less than significant if it's less than about an 16 order of magnitude increase in the risk.
17 Now, that's my works, but if you read it, 18 it's more than a small change, more than a small 19 fractional change.
20 Is it your belief that the increase in 21 risk in changing this test interval is something that 22 approaches an order of magnitude increase?
23 MR. LUSIGNAN: Well, again, I'm not sure 24 I can say a specific amount of increased risk that's 25 occurring here. What I can say is that, again, the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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60 1 level of risk depends both on the likelihood of an 2 event occurring on the consequences of that event 3 occurring.
4 You have here a plant that's in one of the 5 most highly populated areas of the country.
6 Additionally, the License Amendment Request relies on 7 the Severe Accident and Mitigation Alternative 8 Reanalysis which does not consider various plant-9 specific costs.
10 It's based on the Surry reactor which is 11 in rural Virginia and they basically just scaled up 12 the population to account for the greater population 13 in the New York City area, but that doesn't account 14 for the possible increased cost of decontaminating 15 various unique and historical landmarks such as the 16 Statue of Liberty or the Empire State Building. A 17 list of various unique and historical sites are 18 attached to the State's Petition.
19 JUDGE ARNOLD: Question. Do they actually 20 do those? Do they calculate a cost of clean up? I 21 saw results in terms of the large, early release 22 frequency and the REM per person. And the REM per 23 person doesn't care about property clean up.
24 So, could you be more specific?
25 MR. LUSIGNAN: Right, Your Honor.
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61 1 Specifically, the issue is that they 2 considered per person cost to the basically only cost 3 of a leak at Indian Point.
4 Your Honor, I see that I'm out of time, if 5 I may just conclude this answer.
6 JUDGE HAWKENS: Yes, please continue.
7 MR. LUSIGNAN: However, what it did not 8 consider are the costs of clean up of clean up of 9 historic unique sites as well as, for instance, Wall 10 Street, the financial center of the country.
11 These are specific things that could be 12 affected by a leak at the IP-2 containment that could 13 be, potentially, very severe and, thus, increase the 14 risk posed by relaxing the containment monitoring.
15 So, I didn't get a chance to talk much 16 about our second contention, and we'll rest on our 17 papers on that one.
18 JUDGE HAWKENS: If my colleagues don't 19 object, I'd like to give you five minutes in addition 20 to the normal presentation time so you can address the 21 second issue.
22 MR. LUSIGNAN: Thank you, Your Honor.
23 The second --
24 JUDGE HAWKENS: One second, please.
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62 1 more questions, so let's -- rather than limiting you 2 to five minutes, I think it's important that Judge 3 Arnold gets his questions answered. So, I'm going to 4 let him ask.
5 MR. LUSIGNAN: Of course, thank you.
6 JUDGE ARNOLD: On page 8 in paragraph 7, 7 you talk about the corrosion and you say the LAR does 8 not report on this corrosion.
9 Now, I looked and saw on page 16 of 19 of 10 Attachment 1 of the LAR as item 7 on the list are the 11 words quote, included age-adjusted steel liner 12 corrosion effects in the ILRT assessment was 13 demonstrated to be a small contributor to the impacts 14 of extending the ILRT interval at IP-2.
15 Now, to me, that looks like they have 16 indeed considered corrosion. Any comment?
17 MR. LUSIGNAN: Yes, they considered 18 corrosion, but in the context of a generic analysis 19 based on this Calvert Cliff liner corrosion analysis.
20 And, again, as I've already mentioned, the 21 Calvert Cliffs liner is very different from the IP-2 22 liner, both in the fact that at the time that analysis 23 was developed, there had never been corrosion detected 24 on the Calvert Cliffs liner.
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63 1 doesn't have all these inaccessible locations that are 2 covered by the insulation paneling that the IP-2 liner 3 has.
4 JUDGE ARNOLD: Do you discuss that in your 5 Petition somewhere? I didn't catch that.
6 MR. LUSIGNAN: That issue isn't 7 specifically addressed in our Petition. Again, it's 8 not the State's burden to come forward with its entire 9 case at this stage in the proceeding, but for the sake 10 of answering your question, I want to provide a little 11 more detail on that.
12 JUDGE ARNOLD: On page 9, let's see, no, 13 I'll ask Entergy that one later.
14 Once again, having to do with seismic 15 considerations, now, if the risk analysis had included 16 this new seismic information, if would have included 17 it in the base case at a 10-year interval and the case 18 with the 15-year interval.
19 Now, why would a higher core damage 20 frequency due to earthquakes affect that calculation 21 any different than it would the base case without 22 considering earthquakes?
23 MR. LUSIGNAN: I think the State's point 24 is a more fundamental one that, in the absence of 25 considering this updated data, you don't have an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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64 1 accurate picture of the risk posed by the license 2 amendment request.
3 JUDGE ARNOLD: On page 18, you mention in 4 paragraph 22 two damaged areas of the stainless steel 5 insulation jacket had to be repaired at this time.
6 And I'm wondering, what is the insulation jacket and 7 what is its significance to safety?
8 MR. LUSIGNAN: Well, the significance --
9 so the insulation jacket is this series of steel 10 panels that are on portions of the IP-2 containment 11 liner.
12 Entergy has proposed to -- has designated 13 those sections as being inaccessible, the sections of 14 the liner that are behind the stainless steel 15 insulation jacket.
16 So, it will not be inspecting those 17 locations notwithstanding the fact that corrosion has 18 been detected behind the insulation liners, 19 specifically in 2000 when they found the thinner --
20 the liner which was within .015 inches of the minimum 21 required thickness that was behind an area of 22 insulation --
23 JUDGE ABREU: Minimum required? What is 24 your basis for saying that's minimum required?
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65 1 number that Entergy's contractor at the time --
2 JUDGE ABREU: So, it's not a regulatory 3 requirement, correct? Is that correct?
4 MR. LUSIGNAN: Correct. It was a 5 contractor Entergy hired.
6 JUDGE ABREU: It has a different -- you 7 have to be -- I want to make sure we're clear on what 8 required meant.
9 MR. LUSIGNAN: Yes, thank you, Your Honor.
10 What I'm referring to as required is the 11 minimum safe thickness that was determined by an 12 Entergy contractor. I believe it was Raytheon at the 13 time, which was that it should be .35 inches.
14 JUDGE ABREU: And the conditions that 15 contractor indicated that would be the minimum for, 16 were those the same as present at Indian Point in this 17 area of the liner?
18 MR. LUSIGNAN: It was specific to Indian 19 Point. It was in the -- when the staff granted the 20 2002 request for a onetime extension, that's where 21 these facts were discusses.
22 JUDGE ABREU: Entergy, is that consistent 23 with your understanding of that segment of the 24 analysis? Is it that liner thickness limit determined 25 by the consultant was for the same conditions as the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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66 1 liner as far as thermal barriers and that sort of 2 thing were the same for --
3 MR. O'NEILL: Same.
4 JUDGE ABREU: -- determination versus the 5 area of the liner he was -- that was being examined 6 under this UT?
7 MR. O'NEILL: I'm not sure I understand 8 the question.
9 JUDGE ABREU: Okay, we have a consultant 10 -- he said there was a limit --
11 MR. O'NEILL: Yes.
12 JUDGE ABREU: -- of liner thickness that 13 a consultant determined under some conditions, but 14 there could be differences with the situation at the 15 liner area, like the thermal backing type of problem 16 whether there is or isn't and whether his issue was 17 that thickness, whether there was thermal backing or 18 not thermal backing. And I want to make sure we were 19 comparing apples and apples.
20 MR. O'NEILL: My understanding is the --
21 you're referring to thermal backing in relation?
22 JUDGE ABREU: I'm sorry, thermal 23 insulation.
24 MR. O'NEILL: I don't think that was 25 germane to what the consultant was doing. We have to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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67 1 defer to Mr. Acevedo, but I suspect that the tolerance 2 limits or minimum thickness that they were using 3 related to the thickness of the liner itself as 4 measured through non-destructive examinations or 5 tests.
6 JUDGE ABREU: That is my understanding was 7 liner, the steel thickness.
8 MR. O'NEILL: The steel, yes, yes.
9 JUDGE ABREU: The clarifying the details 10 of in what situation if it's exposed to thermal stress 11 would be different than if it has insulation behind 12 it, the stresses would be different and whether -- how 13 much thickness would be required. So, I just wanted 14 to make sure it was comparing what his rule was versus 15 what the State is concerned or make sure they are the 16 same.
17 MR. BESSETTE: Your Honor, we'll have to 18 consult with our -- perhaps we can do it during the 19 break.
20 MR. LUSIGNAN: And I'm happy to read you 21 the language from the specific License Amendment, the 22 August 5, 2002 document granting the onetime 23 extension.
24 JUDGE ABREU: We can do that during the 25 break.
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68 1 MR. LUSIGNAN: Okay.
2 JUDGE ARNOLD: So, let me understand your 3 answer. The insulation jacket, the significance 4 there, isn't the jacket itself, but the fact that 5 there was corrosion on it and there might have been 6 corrosion on the liner?
7 MR. LUSIGNAN: That's right.
8 JUDGE ARNOLD: Okay.
9 MR. LUSIGNAN: That liner is behind this 10 jacket and it's considered inaccessible where it's 11 behind the jacket.
12 JUDGE ARNOLD: On page 19, paragraph 24 13 second sentence, those admissions and errors worked to 14 undercount the costs of an offsite radiation release 15 and, therefore, skew the cost benefit analysis in 16 favor of the requested amendment.
17 I was unaware of any cost benefit analysis 18 in here. Could you point that out?
19 MR. LUSIGNAN: This has to do with the 20 Severe Accident Mitigation Alternatives Re-Analysis.
21 That was developed in connection with the relicensing 22 proceeding. But, it was apparently used as a basis 23 for the Probabilistic Risk Assessment prepared in this 24 case.
25 Now, the Probabilistic Risk Assessment NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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69 1 doesn't set forth the underlying data or assumptions 2 so it's difficult to know exactly what we're working 3 with here. But, to the extent that it relies on that 4 2009 SAMA, the State has identified a number of 5 undercounting errors.
6 JUDGE ARNOLD: I'll get into that. That's 7 my next question, but I'm just saying, where in the 8 LAR is this cost benefit analysis?
9 MR. LUSIGNAN: There's no specific cost 10 benefit analysis in the LAR.
11 JUDGE ARNOLD: Okay. Next page, page 20 12 in that paragraph, I see three specific issues. One, 13 the value of decontamination cost of offsite 14 properties, two the analysis artificially and 15 improperly limits its scope to land and population 16 only within 50 miles and, three, it relied on a dollar 17 per person REM value of $2,000.00.
18 Now, I saw the two significant results 19 from the risk analysis expressed as large early 20 release frequency and the REM per person number.
21 Now, first, for the large early release 22 frequency, do any of these factors in any way impact 23 that?
24 MR. LUSIGNAN: The State's position is 25 that that analysis was unnecessarily cramped for not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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70 1 considering these other factors, that simply scaling 2 up the population based on a reactor in rural Virginia 3 is not sufficient to account for the site-specific 4 risks that are posed at Indian Point.
5 Again, the NRC must make a finding that 6 there's reasonable assurance of adequate protection of 7 the public health and welfare and this is -- and that 8 is not necessarily satisfied just because an Applicant 9 has checked off the boxes in an industry regulatory 10 document or has conducted probabilistic risk 11 assessment.
12 JUDGE ARNOLD: Now, I haven't seen 13 anywhere any reference to an expert who has done this 14 evaluation. Do you have an expert that has said that 15 the risk analysis is done improperly or is this just 16 from you?
17 MR. LUSIGNAN: I can tell you, Your Honor, 18 that it's not just from me. We've been consulting 19 with experts on this. We were not able to get an 20 expert opinion in time to submit something in support 21 of our contention in a world where Government's had 22 infinite resources and infinite time. We would have 23 done that.
24 It is my understanding that if this 25 proceeds to trial, we will be retaining an expert.
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71 1 JUDGE ARNOLD: And those three factors, 2 when the risk analysis was done, they saw an increase 3 in the REM per person of approximately .6 percent.
4 If these factors had been included, would 5 that number have changed significantly?
6 MR. LUSIGNAN: Again, I don't think we 7 know that because they were not considered and the 8 State hasn't conducted its own analysis of these 9 numbers with the State's position is that Entergy and 10 its contractor should have considered all relevant 11 information to apply for this plant-specific license 12 amendment.
13 JUDGE ARNOLD: Okay.
14 JUDGE HAWKENS: I want to follow up on one 15 of those questions. Is it your position the PRA is 16 inadequate because it relies on an inadequate SAMA 17 analysis?
18 MR. LUSIGNAN: Among other things, Your 19 Honor. It also relies on this kind of joint 20 evaluation of IP-2 and IP-3 that was conducted more 21 than a year before the License Amendment Request. It 22 does not consider the updated seismic hazards. It 23 relies on this generic liner corrosion analysis 24 developed in connection with Calvert Cliffs. And it 25 fails to consider the various plant-specific events NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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72 1 that the State has set forth in its Petition.
2 JUDGE HAWKENS: Is the same SAMA analysis 3 that was prepared for the Indian Point License 4 Renewal?
5 MR. LUSIGNAN: That's correct, Your Honor, 6 and it's currently before the NRC on an unrelated NEPA 7 -- or a NEPA related contention in the relicensing 8 proceeding.
9 JUDGE HAWKENS: Not raising the same type 10 of challenge to the SAMA on appeal or does it raise 11 the same type of challenge?
12 MR. LUSIGNAN: This is the same type of 13 challenge being raised in this case, but in connection 14 with the License Amendment Request Probabilistic Risk 15 Assessment.
16 MR. BESSETTE: Your Honor, Paul Bessette.
17 We would have to disagree to the answer to 18 that question.
19 JUDGE HAWKENS: You said you would or 20 would not disagree?
21 MR. BESSETTE: We would disagree.
22 JUDGE HAWKENS: All right, we'll come to 23 you later on that.
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73 1 of the second contention at this point to three 2 minutes and just summarize your position on that, 3 please.
4 MR. LUSIGNAN: Yes, thank you, Your Honor.
5 Briefly summarized, contention two alleges 6 that the license is also deficient because no 7 environmental report has been conducted and the 8 categorical exclusions set forth in Section 9 51.22(c)(9) does not apply here.
10 Specifically, the categorical exclusion 11 does not apply for three reasons.
12 One, there are special circumstances that 13 exist that preclude the application of that 14 categorical exclusion.
15 Two, the license amendment constitutes a 16 significant hazard.
17 And, three, the license amendment may 18 result in an increase in the release of radioactive 19 effluence into the environment.
20 Briefly stated, Entergy and NRC staff have 21 argued that a finding of significant hazards 22 consideration essentially can work to bar NEPA review.
23 However, the history of that regulation is 24 clear that the no significant hazards consideration 25 determination is supposed to be a purely procedural NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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74 1 device used to determine the timing of a hearing.
2 So, it's inappropriate in this case to 3 attempt to use that proposed determination to block 4 review of whether categorical exclusion applies here.
5 JUDGE HAWKENS: That sound very much like 6 a challenge to the regulation. You cloak it as a 7 challenge to the Application of the regulation, but, 8 in fact, you say that 51.22(c)(9)(I) should not be in 9 that regulation. Is that correct?
10 MR. LUSIGNAN: The State argues that what 11 --
12 JUDGE HAWKENS: Is that correct, yes or 13 no? I mean you're not saying --
14 MR. LUSIGNAN: No.
15 JUDGE HAWKENS: -- it shouldn't apply in 16 this circumstance, you're saying it's inappropriate to 17 apply it in any no significant hazards consideration 18 case on a categorical basis, is that right?
19 MR. LUSIGNAN: No, what the State is 20 saying is that the no significant hazards 21 consideration in that subsection is a different issue 22 than the no significant hazards consideration 23 determination that's unreviewable in connection with 24 the procedural determination of when to have a 25 hearing.
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75 1 JUDGE HAWKENS: Do you have any case law 2 or a regulatory history to support that? That seems 3 like a term of art, no significant hazard 4 consideration.
5 MR. LUSIGNAN: Well, when that categorical 6 exclusion was expanded to include that no significant 7 hazard --
8 JUDGE HAWKENS: I'm sorry, let me ask the 9 question again and you can answer it and then 10 supplement your answer.
11 But do you have any case law or regulatory 12 history support for your position?
13 MR. LUSIGNAN: Yes, Your Honor.
14 Specifically, I would direct you to the case of the 15 ASLB decision in Pahaina Hawaii, LLC which says that 16 an intervener can challenge the applicability of a 17 categorical exclusion and that doesn't constitute a 18 challenge to the underlying regulation.
19 Second, in the regulation that expanded 20 this categorical exclusion to include the no 21 significant hazards consideration, there's no 22 discussion of that determination being unreviewable 23 and it's essentially saying that a determination can 24 both preclude NEPA review and not be reviewable by the 25 ASLB or the Commission.
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76 1 I see that my much expanded time has now 2 also expired.
3 Thank you, Your Honors.
4 JUDGE HAWKENS: Thank you, Mr. Lusignan.
5 If no counsel objects, I propose we take 6 a ten minute recess and return at 2:25.
7 Thank you.
8 (Whereupon, the above-entitled matter went 9 off the record at 2:15 p.m. and resumed at 2:25 p.m.)
10 JUDGE HAWKENS: Having heard from the 11 Petitioner, the State of New York, we'll now be 12 hearing from the licensee, Entergy, and will it be Mr.
13 Bessette making the presentation?
14 MR. BESSETTE: No, Your Honor, Mr. O'Neill 15 would like to present some initial comments for Your 16 Honors. It's kind of a summary of our position and 17 we're ready to answer any Board questions.
18 JUDGE HAWKENS: Right, thank you. Please 19 proceed.
20 MR. O'NEILL: Thank you, Your Honors.
21 We really appreciate the opportunity to 22 present our views on the Petition here today and I 23 think we made a very diligent effort to debrief the 24 issues thoroughly and we hope that it helps you in 25 your decision.
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77 1 You know, as an initial matter, we would 2 note that we don't contest New York's standing 3 intervene in the proceeding. As you know, they're an 4 intervener in the license renewal proceeding.
5 However, we do oppose the admission of 6 both of their contentions, safety contention, New York 7 State 1, environmental contention, New York State 2, 8 on the grounds that they fail to meet any of the 9 contention admissibility criteria set forth in 10 CFR 10 2.309.
11 We recognize that interveners are not 12 required to prove their case or even meet a summary 13 disposition, but it is well established that the 14 contention admissibility standards are strict by 15 design and they do require a minimal factual showing 16 which we think they have not made in this case. So, 17 we respectfully disagree of Mr. Lusignan on that 18 point.
19 But, in summary, we believe that they have 20 failed to provide adequate support for the proposed 21 contentions, have not established the genuine dispute 22 on a material issue of fact or law and have even 23 raised certain issues that are beyond the proper scope 24 of this proceeding or simply not material to the 25 staff's on the Application.
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78 1 As is evident from the filings made in 2 this proceeding, we're dealing with some highly 3 technical subject matter.
4 In preparing the Application, Entergy used 5 engineers with very diverse areas of expertise, 6 structural engineering, mechanical engineering, 7 nuclear risk assessment, ASME code applications. And, 8 significantly, New York has not presented any type of 9 supporting expert opinion or affidavits, much to the 10 determent of its case in our view.
11 Instead, they rely heavily on assertions, 12 often grave assertions, by counsel that we view as 13 unfounded or simply unsupported by the record.
14 We recognize, of course, that they're not 15 required to have an expert at this stage of the 16 proceeding, but it is interesting to us they 17 participated -- they are the lead intervener in the 18 Indian Point license renewal proceeding.
19 And I can personally attest that they've 20 offered expert declarations or affidavits in 21 connection with all of their safety contentions and I 22 believe most of the environmental contentions. And 23 they did that at the initial admissibility stage.
24 So, I think it is a significant omission 25 in this case.
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79 1 But, even putting that aside, the State 2 had the burden. Again, it's the State's burden of 3 persuasion here, not Entergy's, not the staff's, to 4 establish a material dispute with the Application.
5 They'll point to specific aspects of the 6 Application that fail to meet a regulatory or 7 statutory standard and explain why. And, again, we 8 believe they've not done so here.
9 I think what is very telling and 10 significant is many of the documents on which they 11 rely, including the Application itself, generally 12 contradict, not support their claims. And, I'll 13 provide a few examples.
14 New York references four documents in 15 connection with an event that occurred in November 16 1973, almost 42 years ago, involving a feedwater line 17 to one of the IP-2 steam generators.
18 That event caused a slight inward 19 deformation to portions of the IP-2 containment liner 20 above the feedwater pipe penetrations.
21 We carefully, methodically, went through 22 the documents and came to the conclusion that they 23 undercut New York's position. This particular 24 incident included a detailed technical report prepared 25 by the licensee which makes very clear they took a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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80 1 number of corrective actions in response to the event 2 including a survey of the liner profile, UT testing, 3 liner studs, magnetic particle inspection of the liner 4 vent test, pressure leak tests.
5 And, the ultimate conclusion was that 6 there was no evidence of any reduction in the 7 containment liner integrity. And the NRC reviewed the 8 licensee's actions as well as its technical evaluation 9 and reached the same conclusion. Quote, unquote, the 10 damage to the liner has not impaired its integrity and 11 that it can perform its function with an adequate 12 margin of safety.
13 So, New York fails to mention this 14 directly contrary evidence and I think that's just one 15 good example.
16 Another good example is pointing the 17 Application itself. New York claims that more recent 18 inspections of the IP-2 containment surfaces, 19 including the containment liner, supposedly confirm 20 that the liner and related surfaces have been harmed 21 by historical accidents.
22 In reality, when you review the summary of 23 those inspections in the Application as well as some 24 other correspondence that I'll get to shortly, the 25 recent ASME code IWE and IWl inspection summarized in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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81 1 the Application found no indications of any structural 2 degradation that adversely affects the ability of the 3 containment performance design function which is the 4 only attaining integrity during accident conditions.
5 Certainly, they have detected indications 6 as would be expected with a, you know, a 40-year-old 7 structure. But, for the most part, they were 8 superficial. You know, a general surface corrosion, 9 flaking or peeling of paint or certain coatings and 10 all of these were either repaired and/or being 11 appropriately monitored in subsequent inspections.
12 Another point I do want to emphasize is 13 that we do view the risk assessment as appropriately 14 addressing liner corrosion.
15 It is true that it borrows from a 16 methodology developed originally in connection with 17 the Calvert Cliffs plant in response to a staff RAI.
18 But, I understand that analysis has been used by other 19 licensees, I presume previously reviewed by the staff 20 in connection with the IP-3 ILRT amendment was granted 21 five months ago.
22 And, just indulge me for a moment here.
23 Attachment 3 to the Application is the 24 Confirmatory Risk Impact Assessment and I would just 25 point the Board, or at least for the record, to pages NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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82 1 416 through 418 where it walks through the various 2 assumptions that were made for purposes of assessing 3 liner corrosion. You know, historical steel liner 4 flaw likelihood.
5 There's an example, two events over a five 6 and a half year data period. Age-adjusted steel liner 7 fail likelihood. These are just a few of the examples 8 of the likelihood that a visual inspection would fail 9 to detect corrosion or some other flaw. So, I did 10 want to get that on the record. We do think it's been 11 adequately addressed.
12 I would also like to emphasize that, you 13 know, Entergy does not rely on the ILRT to detect 14 corrosion of the liner, degradation of the containment 15 concrete. Rather, it uses these other programs that 16 I mentioned, IWE, IWL inspections.
17 And the frequency of those tests is 18 unaffected by the current application. So, they will 19 continue to do the IWL inspections every five years.
20 The IWE, which is essentially the internal containment 21 inspection, the metal surfaces, every three and one-22 third years.
23 Returning to yet another example of what 24 I believe is New York's inaccurate characterization --
25 JUDGE HAWKENS: Mr. O'Neill?
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83 1 MR. O'NEILL: Yes?
2 JUDGE HAWKENS: Ultrasonic testing, how 3 often is that performed?
4 MR. O'NEILL: The ultrasonic --
5 JUDGE HAWKENS: There was one performed in 6 2000, it's noted in either the Application or 7 documents referencing the Application and I'm just 8 wondering.
9 MR. O'NEILL: I think -- and I'll need to 10 confer with Mr. Acevedo, but I believe it's probably 11 a function of the visual inspection results, you know, 12 if they do detect some potential surface corrosion, in 13 that case, they may take, you know, the NB or UT test.
14 JUDGE HAWKENS: So, was 2000 the most 15 recent ultrasonic test?
16 MR. O'NEILL: I know it's -- I think --
17 well, I should say that.
18 In 2000, they did, yes, a number of UT 19 inspections of the areas of the concrete containment 20 floor where there had been some corrosion degradation.
21 And I know they did follow up inspections for the 22 following three, yes, the following three refueling 23 outages, they did inspections. But, I would need to 24 confirm whether they did UT during those inspections.
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84 1 of testing that would be able to look at corrosion or 2 other effects on the liner concrete interface that 3 were done besides the ultrasonic testing? The concern 4 being the inaccessible areas, how do we know what's 5 going on in those inaccessible areas?
6 MR. O'NEILL: Yes --
7 MR. BESSETTE: Your Honor, it's my 8 understanding that the IWE inspection program is 9 focused on accessible areas. But, the -- if you're 10 finding any signs of degradation in the accessible 11 areas, they do look at inaccessible areas.
12 Also, the thermal insulation which we were 13 talking about is sealed all along the paths and at the 14 bottom where it touches the liner floor. So, and that 15 is inspected during each IWE inspection.
16 So, that severely limits any intrusion of 17 what which could contribute to the inspection.
18 JUDGE ABREU: Based on that brackish water 19 event back at 1980 I believe it was, how do you know 20 what areas that water got to and that those are not 21 having continue corrosion despite having sealed the 22 area?
23 You know, in other words, you could have 24 trapped it in, for example, being the theory. How do 25 you know those areas -- and how big is that area that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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85 1 was affected?
2 MR. BESSETTE: Your Honor, the water 3 intrusion event from 1980, my understanding has, you 4 know, I think it was I think a hundred thousand 5 gallons. So, it rose quite a height within the 6 containment itself, though it would have affected --
7 JUDGE ABREU: Inside the liner?
8 MR. BESSETTE: Yes.
9 JUDGE ABREU: What about outside that 10 liner concrete interface, did --
11 MR. BESSETTE: I'm not aware of - my 12 understanding is it didn't affect that, but I would 13 have to confirm.
14 MR. O'NEILL: Yes, and I can add to it and 15 this is probably a good opportunity to point the Board 16 to one document that it's actually cited on page 12, 17 footnote 59 of our brief, really and acts as 18 background material.
19 But, this was an RAI response remitted by 20 Entergy in connection with this Application on -- get 21 the correct date here -- May 20, 2015, it's Entergy 22 correspondence NL-15-062.
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86 1 and on page 3 of the attachment, it contains a 2 discussion of what they did in 2000.
3 And it explains that during the Unit 2 4 refueling outage in 2000, it was discovered that some 5 of the caulking, the inner section of the stainless 6 steel liner jacket was degraded which provided a 7 potential water path to the liner.
8 So, as a result, the liner was removed at 9 12 locations and examined in accordance with IWE 10 requirements.
11 They observed -- some corrosion was found 12 but the NDE results showed that the liner thickness in 13 all areas was greater than the required minimum 14 thickness. And, this is what I mentioned before, they 15 did this three successive periods and found no 16 additional degradation.
17 So, the liner was found to be in good 18 condition. And --
19 JUDGE ABREU: There was corrosion on the 20 outside?
21 MR. O'NEILL: They had -- yes, have 22 detected some corrosion on it but it's not a 23 structural concern --
24 JUDGE ABREU: The source of that 25 corrosion?
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87 1 MR. O'NEILL: I think it is the 1980 2 event, yes.
3 JUDGE ABREU: So, there was some of the 4 brackish water getting outside the liner between the 5 concrete?
6 MR. BESSETTE: Your Honor, I believe the 7 --
8 JUDGE ABREU: You're saying there was 9 water on the outside of the liner where the corrosion 10 occurred?
11 MR. O'NEILL: I'm sorry, Your Honor, I 12 believe the corrosion --
13 JUDGE ABREU: Of the base mat?
14 MR. BESSETTE: Yes, the base mat.
15 MR. O'NEILL: It's on the -- when you take 16 away the insulation, they saw the corrosion.
17 JUDGE ABREU: The difference was it's 18 above the base mat, so it's --
19 MR. O'NEILL: Yes.
20 JUDGE ABREU: But it's still in the -- is 21 it -- but it's in an area you can't visually inspect?
22 MR. BESSETTE: You can inspect it if you 23 remove the insulation panels.
24 MR. O'NEILL: If you remove the insulation 25 -- which is what they did, yes.
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88 1 JUDGE ABREU: And that was what year?
2 MR. O'NEILL: This was 2000.
3 JUDGE ABREU: Okay, so, since 2000 --
4 MR. O'NEILL: But they did follow up 5 inspections the next three refueling outages, every 6 two years, yes.
7 JUDGE ABREU: So, yes, so since 2000, how 8 have you looked at -- how have you evaluated those 9 inaccessible, nonvisualizable areas that might have 10 been affected by the 1980 event?
11 MR. BESSETTE: Your Honor, as noted in the 12 RAI response that Mr. O'Neill referenced, after the 13 2000 inspection where some corrosion was identified, 14 per requirements of the ISI program, they were 15 required to look at those same areas in three periodic 16 inspections. So, three outages after 2000, they went 17 and looked --
18 JUDGE ABREU: At the inside in those 19 spots?
20 MR. BESSETTE: At those same spots, right, 21 yes.
22 JUDGE ABREU: You really don't know what's 23 -- you haven't been able to evaluate what goes on on 24 the outside with the current evaluation methods used?
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89 1 NDT would look at the general thickness of it which 2 would determine the overall corrosion of the liner.
3 JUDGE ABREU: And have any of those -- any 4 form of NDT been done?
5 MR. BESSETTE: During the 2000?
6 JUDGE ABREU: In 2000?
7 MR. BESSETTE: Your Honor, they could have 8 been in the three consecutive periods required by the 9 ISI, but we would need to confirm that.
10 JUDGE ABREU: Could have been?
11 MR. BESSETTE: Right, we just need to --
12 MR. O'NEILL: I mean, they say per IWE 13 requirements, inspections at these locations were 14 performed for three successive periods with no 15 additional degradation found.
16 So --
17 JUDGE ABREU: For IWE as opposed to --
18 MR. BESSETTE: And, Your Honor, we would 19 note that as the discussion of the Calvert Cliffs 20 corrosion methodology included in the risk assessment, 21 there are factors and sensitivity analysis that assume 22 there is corrosion occurring in nonaccessible areas.
23 But, we specifically include that analysis and those 24 assumptions in the risk assessment and the sensitivity 25 factors that you will not detect it by visual NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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90 1 inspection and that it is occurring where you cannot 2 see it.
3 JUDGE ABREU: Did those consider an event 4 such as the brackish water event which we could have 5 discussion about how common or uncommon that type of 6 event is, but would that -- would Calvert Cliffs 7 analysis include something like that which is 8 something not seen at every plant potentially?
9 MR. BESSETTE: My understanding is the 10 Calvert Cliffs analysis does include operating 11 experience in the determination of that methodology.
12 But, again, our --
13 JUDGE ABREU: Would you consider the 14 brackish water event typical for operating experience?
15 Were you --
16 MR. BESSETTE: Really, not a hundred 17 thousand gallons is not typical. But the corrosion 18 was not atypical that we found. The corrosion was 19 very minor that was identified and verified under 20 three periodic inspections.
21 We have absolutely no evidence of 22 continuing degradation of the liner. We believe we 23 identified it, we remedied it, we tested it and we 24 have no reason to believe there's any further 25 degradation. Plus, there's no source of water that we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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91 1 know of that can cause further degradation.
2 JUDGE ARNOLD: You say you evaluated the 3 corrosion and then the risk analysis. Now, according 4 to New York State, the risk analysis started with the 5 Surry Analysis and just scaled the population.
6 So, how did you evaluate corrosion in 7 there?
8 MR. BESSETTE: First, I completely agree 9 -- that disagree that the risk analysis was based on 10 the Surry. I mean any analysis that a utility uses, 11 particularly in a risk analysis, is based on a certain 12 template that you have to use.
13 But, the analysis that Entergy performed 14 wasn't entirely plant-specific. It used the Unit 2 15 Probabilistic Risk Assessment. It used the source 16 terms. It used the containment design. It used the 17 actual population density around the site.
18 I know Mr. Lusignan has, at times, called 19 it generic but we fully disagree with. This was a 20 very site-specific analysis.
21 JUDGE ARNOLD: Mr. O'Neill, did you have 22 anything further to add?
23 MR. O'NEILL: Well, the one point I would 24 like to clarify it relates to the population. That is 25 very plant and region specific. It was derived for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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92 1 purposes of the License Renewal SAMA Analysis using 2 regional, county, even city level data in, you know, 3 the case of Manhattan and the Burrows. They used 4 Census data.
5 And it was ultimately litigated in the 6 license renewal proceeding. New York challenged the 7 adequacy of the year 2035 projections. The staff 8 found them to be adequate in their FSEIS, their final 9 SEIS for license renewal. And, the Board presiding 10 over that proceeding agreed.
11 So, they resolved that contention in favor 12 of the staff and Entergy found the population estimate 13 to be adequate and that issue was not appealed by New 14 York to the Commission.
15 JUDGE HAWKENS: I'm trying to determine if 16 there is any relationship between the conclusion by 17 the Indian Point License Renewal Board that would 18 extend to this case regarding the SAMA Analysis.
19 MR. BESSETTE: Your Honor, my 20 understanding is the only portions of the SAMA 21 Analysis that were -- the risk assessment is not a 22 SAMA Analysis. I know Your Honors identified. We're 23 not looking at the cost to decontaminate.
24 There's particular factors in the 25 methodology that we looked at which is the change in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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93 1 large early release frequency, the containment 2 conditional probability and dose. Those are the 3 factors we look at. It's not a SAMA Analysis in the 4 pure sense of looking at decontamination costs.
5 So, many of the factors that Mr. Lusignan 6 referenced are not relevant here. They're not even 7 considered.
8 What is considered, though, is the 9 population that we used in the SAMA Analysis and that 10 is, in fact, based on 2000 -- it's actual Census data 11 for the entire 50 mile region which is a standard SAMA 12 Analysis that the NRC endorses and that population, 13 and it's projected to 2035 conservatively, and that 14 population was fully vetted by the ASLB, found to be 15 appropriate and not appealed by New York.
16 So, we believe there's really no basis for 17 New York to challenge that figure now when they lost 18 that argument and didn't appeal it.
19 MR. O'NEILL: Well, continuing on, I was 20 talking about examples for the record that undercut 21 New York's position and I think another key one 22 relates to the issue of the "as found" leakage. And, 23 I know Your Honors addressed this already to some 24 extent, but New York keeps pointing to a criterion 25 which is the "as left" criterion of 0.075 percent NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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94 1 containment air weight per day.
2 I mean, the Application makes very clear 3 that the applicable criterion is the 0.1 weight 4 percent per day of the containment atmosphere.
5 So, New York's own extrapolations indicate 6 that the relevant criterion will not be exceeded even 7 by 2021. So, New York's not only citing the wrong 8 limit, but there's been no evidence presented that 9 that limit would be exceeded. Again, they've offered 10 no expert opinion to, you know, back their claim that 11 we're going to exceed the applicable limit.
12 To summarize that portion of the 13 arguments, New York, not Entergy or the staff, bears 14 the burden of persuasion at this stage of the 15 proceeding. It has not met that burden here. And our 16 view, simply citing documents without adequately and 17 accurate disclosing their actual contents is not 18 enough to support the admission of a contention.
19 JUDGE HAWKENS: Mr. O'Neill, I'm looking 20 at the ILRT test results, the trajectory provided by 21 Mr. Lusignan. Andy, could you put that on the 22 projector, please? The ILRT tests?
23 Now, if I understood you correctly, Mr.
24 O'Neill, the trend on this graph is not material and 25 could you explain to me why it's not material?
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95 1 MR. O'NEILL: Well, yes. As Judge Abreu 2 pointed out before, it's plotting "as found" data 3 relative to the "as left" acceptance criterion.
4 That's the .75 LA as the "as left" acceptance 5 criterion.
6 And I'm saying it's material here because, 7 even if we assume this trend continues out even to 8 2021, we're still going to be below the 1.0 time LA 9 "as found" acceptance criteria.
10 JUDGE HAWKENS: That's the determinative 11 criteria for purposes of this License Amendment 12 Request?
13 MR. O'NEILL: Yes, yes. If you perform 14 the test and come in under that value, you know, the 15 test, you have passed the test.
16 My understanding is the .75 "as left" is 17 really intended to provide some margin until the next 18 test. So, in case there is some degradation of the 19 containment leakness integrity or tightness, kind of 20 building in some margin before the next test is 21 performed.
22 JUDGE HAWKENS: How would you respond to 23 Mr. Lusignan's argument that the trajectory these data 24 points combined with the unusual history of Unit 2 25 give rise to safety and health concerns unless we keep NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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96 1 the period at 10 years rather than 15 years?
2 MR. BESSETTE: Well, Your Honor, we 3 obviously disagree.
4 First, we don't agree that these data 5 point are indicative of an adverse trend. If you 6 study the way the ILRT tests are conducted, and 7 they've been conducted at Indian Point 2 over the past 8 40 years, they are not conducted to an absolute common 9 baseline.
10 Each ILRT, there are different systems 11 isolated at the time and if they're isolated, as we 12 discussed, you have to provide -- if a system is 13 isolated and it's not tested, you have to provide that 14 ILRT results to the results.
15 So, it can vary, depend on which systems 16 are -- you may have to penalty for what systems are 17 isolated. In fact, the most recent 2006 test had the 18 largest ILRT penalty. It really isn't indicative of 19 an adverse trend.
20 In addition, a key factor is the length of 21 the test, we understand how long it's performed, it's 22 much like the longer you hold the test pressure, 23 there's almost a soak in period where you'll see, you 24 know, leakage continue to rise, but then it slowly --
25 it'll settle out.
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97 1 But, over the years, and frankly, these 2 tests can take a very long time to conduct, whereas 3 the pressure may have been held 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> years ago, 4 they're held now until you get a satisfactory result.
5 If your results are less than 1.0, there's no reason 6 to hold it for another 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> and wait for the 7 results to settle out for potentially lower value.
8 So, there's various factors that go into 9 the ILRT results, but we don't believe it's indicative 10 of an adverse trend.
11 JUDGE ARNOLD: What is the safety 12 significance of having leakage that is some amount, 13 say 20 percent greater than LA?
14 MR. BESSETTE: Well, I mean --
15 JUDGE ARNOLD: Does it affect the real 16 risk of the plant?
17 MR. BESSETTE: It's a population dose 18 risk, Your Honor. I mean, obviously, your containment 19 leakage does not contribute to your core damage 20 frequency.
21 I was trying to come up with an analogy 22 yesterday and I was thinking, you know, the age of 23 your air bag in your car doesn't affect how often your 24 car gets into an accident.
25 So, I think that it's how much, an in an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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98 1 assumption of an accident where there's a radiation 2 release is how much goes to the population? So, no, 3 it doesn't affect the core damage frequency, although 4 it does affect the population.
5 MR. O'NEILL: And, can I add to that? I 6 think that's why the principle risk metric is the 7 LERF, the large early release frequency, because that 8 pertains to those accident scenarios that involve 9 rapid unmitigated releases to the environment.
10 Whereas, the core damage frequency, you're 11 just simply looking at the likelihood that an accident 12 will cause damage to the core. So, that's -- and same 13 thing, the CCFP, conditional containment failure 14 probability is really -- and it represents the 15 fraction of the overall core damage frequency that's 16 the LERF, you know, that's attributed to the LERF.
17 JUDGE HAWKENS: Can you refresh my memory 18 on the periodicity of the Type B and Type C testing, 19 Please?
20 MR. O'NEILL: The Type B testing, and I 21 may need to confirm this with Mr. Acevedo, I believe 22 is at least every 60 months, so I guess that would 23 five years.
24 If they are, depending on the nature of 25 the findings, I think, you know, if there is some NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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99 1 leakage, the fact that they may be reduced -- or I 2 should say the frequency will be increased to every 30 3 months.
4 MR. BESSETTE: Yes, Your Honor, those --
5 well, I guess you can call it like well performing 6 penetrations can go up to 60 months, those that have 7 evidenced some leakage over the continued test can go 8 down as much as every 30 months.
9 JUDGE HAWKENS: Going forward, Indian 10 Point Unit 2 then will be performing Type B every five 11 years, is that correct?
12 MR. BESSETTE: At least.
13 JUDGE HAWKENS: At least?
14 MR. BESSETTE: Yes. The -- as Mr. O'Neill 15 said, none of the other ILRT, Type B or Type C 16 frequencies are affected by this License Amendment 17 Request. Neither are the IWE or IWL inspection 18 frequencies.
19 JUDGE HAWKENS: Is Type C likewise at 20 least every five years or is that different?
21 MR. O'NEILL: Yes, it's the same, between 22 30 and 60 months, so at least every five years.
23 JUDGE ABREU: The data from 2006 when the 24 leakage rate was .0636 but the minimum pathway leakage 25 rate was unusually high at 46,000 roughly cc's per NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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100 1 minute. Can you give us some idea how much that high 2 minimum pathway leakage rate plays into elevating the 3 overall ILRT result?
4 MR. BESSETTE: I would need to consult 5 with Mr. Acevedo on that, Your Honor.
6 JUDGE ABREU: Since both were high, I 7 don't have a sense of what the other factors ended up 8 being.
9 MR. O'NEILL: Can I continue on? Thank 10 you, Your Honors.
11 I guess the second line of argument or 12 that I wanted to pursue was the fact that New York has 13 not, in our view, challenged the contents of the 14 Application in any direct meaningful and adequately 15 supported way as required by Section 2.309(f)(1)(6).
16 I think we've talked at some length about 17 the risk impact assessment and, again, we feel that 18 they really haven't identified any particularized 19 challenges to that assessment.
20 You know, and on that front, I'd like to 21 point out a couple of things. You know, overall the 22 estimated increase in risk is very small because ILRTs 23 tend to identify only a few potential containment 24 leakage paths that cannot be identified by Type B and 25 Type C testing.
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101 1 You know, in fact, when the NRC revised 2 Part 50 Appendix J in 1995, it noted that Type B and 3 Type C tests are capable of detecting over 97 percent 4 of the containment leakages. And, that of the 97 5 percent, most of that is identified by the Type C 6 test. And this was a key factor in the NRC's decision 7 to move to, you know, a performance-based approach.
8 And, I think we've touched on this as 9 well, New York refers to the risk impact assessment as 10 generic in nature. You know, we disagree, that it 11 makes use of Unit 2 specific Probabilistic Risk 12 Assessment information, the Level I and Level II PRAs, 13 you know, as well as the region-specific population.
14 Page 4-6 to 4-12 of the Confirmatory Risk 15 Impact Assessment discuss the plant-specific inputs.
16 Though, again, we feel that they have not 17 -- New York has not identified any direct 18 particularized challenges.
19 Finally, we'd add that New York's proposed 20 contentions raise issues that are neither within the 21 scope of the proceeding or material to the staff's 22 findings.
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102 1 context and found to be adequate. We don't think 2 that's really an issue in this proceeding for that 3 reason.
4 Also, New York improperly challenges the 5 staff's proposed no significant hazards consideration 6 determination. 10 CFR Section 50.58(b)(6) is crystal 7 clear, it explicitly bars the type of challenge New 8 York's making. It states, no --
9 JUDGE HAWKENS: With relation to their 10 second contention or the first one?
11 MR. O'NEILL: Well, they make arguments in 12 connection with the first contention and the second 13 contention. So, this applies to both.
14 JUDGE HAWKENS: How do you respond to Mr.
15 Lusignan's position that no significant hazards 16 consideration means something different with regard to 17 their argument in the second contention?
18 MR. O'NEILL: It doesn't, Your Honor. I 19 think they're just couching the same challenge as a 20 challenge under NEPA. They made arguments, and this 21 was addressed in our brief in support of contention 22 number one saying, you know, we should be able to 23 challenge the no significant hazards.
24 In our view, they, essentially, rehashed 25 those arguments under the rubric of NEPA in the second NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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103 1 contention.
2 JUDGE HAWKENS: Again, do you have any --
3 MR. O'NEILL: Again, I'd go back to -- I'm 4 sorry.
5 JUDGE HAWKENS: Do you have any case law 6 support for that position?
7 MR. O'NEILL: That is our position, excuse 8 me?
9 JUDGE HAWKENS: With regard to the 10 conclusion that no significant hazards consideration 11 means the same thing in both regulations and, 12 therefore, cannot be challenged in either regulation?
13 MR. O'NEILL: I would go back to the plain 14 language of the regulation, 50.58(b)(6). It says no 15 petition or other requests for review of or hearing on 16 the staff's significant hazards considerations 17 determination will be entertained by the Commission.
18 It doesn't distinguish between safety and 19 environmental contentions. I think it's very clear.
20 And, also, I believe the no significant 21 hazards considerations determination is subject to a 22 categorical exemption under Part 51. So, that 23 essentially constitutes the NEPA review for purposes 24 of Part 51.
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104 1 York believes that there are special circumstances 2 here, you know, warranting differential treatment or 3 a waiver of the regulation, they could have filed a 4 Petition for Waiver under Part 2 and they failed to do 5 so here. So, that was a procedural option for them.
6 JUDGE HAWKENS: And back to contention 7 one, can you address their argument regarding the 8 updated seismic hazards data, please?
9 MR. O'NEILL: Yes, I think the fundamental 10 point we would make there, and Mr. Bessette may chime 11 in as well, that the curves that he is -- or Mr.
12 Lusignan is pointing to are initial screening 13 evaluations that are being done as part of the --
14 NRC's post-Fukushima efforts, you know, in response to 15 the Near-Term Task Force.
16 And, so they are still very much fluid.
17 Those were intended to identify plants that may need 18 to do further seismic hazard evaluations and I believe 19 Indian Point 2 is one over 30 plants.
20 And so, the data are by no means final at 21 this stage, but also more fundamentally, they're not 22 part of the current licensing or design basis of the 23 plant. I think for purposes of our instant 24 application, you know, the Applicant was reasonable 25 using, you know, the best available information to it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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105 1 from a seismic standpoint.
2 MR. BESSETTE: And, Your Honor, I would 3 add, Entergy had to use its current licensing basis.
4 There was really no basis for it to use results from 5 a screening criteria that have not been reviewed and 6 approved by the NRC.
7 And, in fact, I would refer you -- there 8 is a February 22, 2014 letter to all licensees 9 regarding the 50.54(f) request for data on the seismic 10 update. It says, the staff considered the seismic 11 hazard reevaluations being performed pursuant to 12 50.54(f) to be distinct from the current design and 13 licensing basis of operating plants.
14 Now, if Entergy had gone ahead and used 15 it, it could be -- there's just no basis to do so.
16 What we have is a screening results, 17 they're being further refined, that will not be 18 complete until 2017. They will then be submitted to 19 the NRC and then there'll be some determination of 20 what, if anything, needs to be taken.
21 It is entirely premature and, if fact, I'd 22 say reckless from a licensing perspective to rely on 23 that data.
24 MR. O'NEILL: You know, I would also point 25 out with respect to the data that, you know, the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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106 1 portion of the curve where the safe shut down 2 earthquake is exceeded is in the above the 10 hertz 3 frequency. And, you know, I understand from 4 communications with some of the engineers that that 5 really has no effector on large structures like the 6 containment. They might undergo some additional 7 vibration, but tends to be more of a concern with 8 certain tanks or things of that sort onsite.
9 So, there's just no indication that it's 10 going to affect the seismic contribution to the core 11 damage frequency for the plant which is explained in 12 the risk assessment impact was based on the IPEE 13 seismic studies that were done back in the '90s and 14 reviewed and approved by the NRC and yielded a very 15 conservative core damage frequency.
16 MR. BESSETTE: Your Honors, if I might 17 address Dr. Abreu's question with regard to the 18 contribution of the ILRT?
19 In 2006, the results were .064 total. Of 20 the 46,000 pcm added constituted .023 of that total.
21 JUDGE ABREU: So, if you hadn't had --
22 let's say it was zero like it was back in '87, the 23 curve would have basically flattened from -- if '91 24 had also been zero. But, it would have been a much 25 flatter curve? That line would have been a much --
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107 1 would have had a much different slope --
2 MR. BESSETTE: Yes, Your Honor.
3 JUDGE ABREU: -- if the ILRT results had 4 been different?
5 MR. BESSETTE: Yes, Your Honor.
6 MR. O'NEILL: Just a few more concluding 7 remarks and, of course, we're still amenable to 8 questions from the Board.
9 But, again, we would like emphasize that, 10 you know, Appendix J and this, you know, Amendment 11 Request in particular, are premised on defense in 12 depth concepts and I know we've noted this before, but 13 the ILRT is one of only numerous tasks that Entergy 14 performs to ensure that the containment is performing 15 its intended function.
16 As we mentioned, they do Type B local leak 17 rate tests for containment penetrations and air locks, 18 Type C tests for containment isolation valves. The 19 ASME code required IWE internal visual inspections of 20 the containment, the ASME code required IWL visual 21 inspections.
22 They also do general visual inspections of 23 certain outside surfaces of the containment mainly 24 around penetration areas every two years per a plant 25 procedure, a periodicity of all of these tests is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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108 1 unaffected by the current Application.
2 Another thing that we did address on our 3 brief as one of the unique design features of the 4 plant and I understand from speaking to Mr. Acevedo 5 that IP-2 and 3 are one of only a few plants that had 6 a containment well channel and penetration 7 pressurization system. And these systems were 8 installed for plants that were located in fairly high 9 population density areas like Indian Point.
10 And that system keeps the well channels 11 over the actual containment steel liner plate welds 12 pressurized during normal plant operation and by 13 design during accidents. The pressure is maintained 14 at or slightly above the calculated peak containment 15 accident pressure.
16 So, this system actually serves a couple 17 of functions. It provides for continuous online 18 monitoring or measuring leakage through portions of 19 the containment boundary that it pressurizes so plant 20 operators can see even very, very small changes or 21 increases in leakage during operation.
22 And, certainly, you know, they would be 23 able to detect leakage associated with the through 24 wall type flaw, you know, in the containment 25 structure.
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109 1 And, it also helps --
2 JUDGE HAWKENS: It's sufficiently 3 sensitive to detect leakage that exceeded the ESTA 4 (phonetic) maximum criteria?
5 MR. O'NEILL: I believe so. From talking 6 to, again, to Mr. Acevedo, it can pick up leakage 7 associated with faulty gaskets and seals just in the 8 system itself. So, I believe it would be extremely 9 sensitive.
10 JUDGE HAWKENS: Can you go even -- and, 11 you may not know the answer, but you said you believe 12 it could detect a 1.0 LA leakage rate, you know, could 13 it detect a .75 LA leakage rate, do you know? Or a 14 .5?
15 MR. O'NEILL: I would have to confer, I 16 think, with Mr. Acevedo.
17 JUDGE HAWKENS: I'd be grateful if you 18 would.
19 MR. O'NEILL: He said it's much more 20 sensitive than, you know, integrated leak rate, and so 21 the answer to your question is yes.
22 JUDGE ABREU: Mr. Lusignan mentioned some 23 corrosion and it sounded like he said inside some of 24 those channels. Were those areas that were 25 pressurized or were those -- is that correct? And, if NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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110 1 so, were those areas that were pressurized during the 2 interval in question or was that an area that happened 3 to have been cut off from the pressurization system?
4 MR. O'NEILL: I do know that there are 5 certain weld channels and we looked into this in the 6 process of preparing our brief. And, IPCEC (phonetic) 7 did cap and seal I think some portions of the system 8 but it amounts to only four percent of the system.
9 Whether that was due to corrosion or not, I don't know 10 specifically, but it is a very minute portion of the 11 system that's not operable.
12 JUDGE ABREU: Trying to follow up, what I 13 think he mentioned before, he can correct me if I'm 14 wrong, was that, hey, we shouldn't be seeing corrosion 15 there because it's pressurized. Yet, there was some 16 corrosion seen.
17 So, I was trying to figure out, okay, was 18 that corrosion because there was no pressurization in 19 those channels at that time or whether there really 20 was or wasn't -- did we misunderstand that there 21 really weren't corrosion episodes inside the channels 22 but maybe just at the site of welds? I wasn't quite 23 sure with what Mr. Lusignan said versus what your 24 position on that would be.
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111 1 just have to investigate that question and get back to 2 you on that.
3 MR. O'NEILL: Returning to that same 4 system, the other point I wanted to make is that, you 5 know, in the event of an accident or, you know, a leak 6 from containment, it would help to prevent the 7 containment atmosphere from leaking out, you know, 8 through the liner welds and penetrations.
9 It's not something they specifically 10 credited from, you know, a safety standpoint, but it 11 does perform that function.
12 And, the last point in my prepared remarks 13 is that we want to emphasize, the licensing action at 14 issue here is by no means novel or unusual. The NRC 15 has approved numerous onetime as well as permanent 16 extensions of the ILRT interval from 10 to 15 years 17 for a number of plants. We provided a list of 18 examples on page 4, footnote 12 of our brief.
19 The NRC, in fact, approved a similar 20 amendment request for Indian Point Unit 3 on March 21 13th, so roughly five months ago. My understanding is 22 New York didn't challenge that. They did submit a few 23 comments that were addressed in the staff's safety 24 evaluation.
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112 1 that extended the Unit 2 ILRT interval on a onetime 2 basis from 10 years to 15 years in August 2002.
3 You know, in summary, for all these 4 reasons, we believe both contentions should be 5 rejected as inadmissable under 2.309(f)(1) and we 6 believe the contention requirements are deliberately 7 strict by design and New York has not met its burden 8 under those requirements.
9 Thank you.
10 JUDGE ARNOLD: Question, isn't Indian 11 Point 2 current operating under Option B of Appendix 12 J for an ILRT interval of 10 years?
13 MR. BESSETTE: Yes, Your Honor.
14 JUDGE ARNOLD: Okay. So, the NRC has 15 already determined that you should not be 16 categorically disqualified from using Option B?
17 MR. BESSETTE: Yes, Your Honor, in fact, 18 we were granted -- Unit 2 was granted a onetime 19 exemption for the 15 year ILRT. That's further 20 evidence that they should not be excluded from Option 21 B.
22 JUDGE ARNOLD: Okay, thank you.
23 JUDGE HAWKENS: You said you were going to 24 consult about whether UT tests had been done 25 subsequent to 2000 on the liner. Are you able to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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113 1 answer that now or --
2 MR. BESSETTE: Your Honor, we have a 3 pending question, so hopefully, we'll get an answer.
4 JUDGE HAWKENS: Okay, thank you.
5 So, we have nothing else right now and 6 don't have the answer, we will hear now from the NRC.
7 MR. BESSETTE: No, Your Honor, we are 8 checking the plant records.
9 JUDGE HAWKENS: All right.
10 JUDGE ARNOLD: Let me just ask one other 11 thing. Has any argument that New York State made 12 similarly applicable to the current temporary 13 extension to 15 years that you're operating under?
14 MR. BESSETTE: Your Honor, I think all of 15 them would apply.
16 JUDGE ARNOLD: Okay, thank you.
17 MR. BESSETTE: And I don't mean to -- you 18 know, I think all would apply and they've been 19 rejected.
20 JUDGE HAWKENS: Thank you.
21 Mr. Turk, are you prepared to proceed?
22 MR. TURK: I believe so, Your Honor.
23 First, let me indicate that I've asked 24 another member of the staff to sit with me at the 25 table and he is to my left. He is Mr. David Gennardo.
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114 1 He is in the Division of Risk Assessment Probabilistic 2 Risk Assessment Licensing Branch.
3 We don't know that you'll have any 4 questions that need his expertise, but just in case, 5 I thought he should be here.
6 And, as a housekeeping matter, let me 7 indicate also that I will respond to contention one 8 and Mr. Ghosh will address contention two.
9 JUDGE HAWKENS: All right.
10 MR. TURK: Let me begin, first of all, 11 Your Honor, by saying that I agreed with the 12 presentation by Mr. O'Neill and by Mr. BESSETTE in 13 whole, with possibly just a few points that I may have 14 misunderstood.
15 Our position is expressed in our response 16 to the Petition to Intervene and I believe that fully 17 states our position. That is the pleading that we 18 filed on June 12, 2015.
19 Just to summarize briefly before getting 20 into the technical details, we agree that New York 21 State has standing to intervene in this matter. But, 22 we agree with Entergy that New York has failed to file 23 an admissible contention as they are required to do 24 under 10 CFR 2.309(f). And, for that reason, their 25 Petition should be denied.
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115 1 It is important to note that what New York 2 relies upon, first of all, are statements by counsel.
3 There's no expert witness provided. There's no 4 analysis provided to support the contentions.
5 And second, they haven't told you the 6 whole story. And, I don't mean to be critical when I 7 say that, but they have told you perhaps half. In 8 fact, they've probably only told you a quarter of the 9 story.
10 What they do with contention number one is 11 they point to some ancient events, 1968 during the 12 construction of the IP-2 reactor and containment, 1973 13 shortly after operation commenced and 1980.
14 They then skip ahead 20 years to talk 15 about inspections that have been conducted in 2000, 16 2004, 2006, 2008. These are much later and they don't 17 address what happened from the time those early events 18 occurred until these more recent inspections.
19 That's a significant omission. They omit 20 all of the corrective actions, all of the NRC 21 inspection reports that were issued during that time 22 frame, looking at the results of the corrective 23 actions that Entergy took and all of the other 24 inspections that were conducted during that time 25 frame.
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116 1 More than that, they leave out any 2 reference that all the NRC's regulations have changed 3 from the time of those early events until now.
4 Very significant, the 1990s period was a 5 very important period with respect to ILRT 6 requirements.
7 In 1995, the NRC adopted the Option B 8 performance-based approach in Appendix J. And also, 9 in 1996 I believe, the NRC incorporated reference to 10 the ASME code of Section XI, Subsections IWE and IWL 11 into the regulations. And, specifically, the 12 regulations in 10 CFR 50.55(a) made specific reference 13 to those code sections and required all nuclear 14 reactor power licensee who follow the requirements of 15 the ASME code of Sections IWE and IWL.
16 Things changed significantly in the 1990s.
17 Whereas, the ACRS and perhaps the AEC staff in the 18 early years were concerned about the need to increase 19 surveillances of reactor containments.
20 In the 1990s, the Commission formalized 21 our approach which established the requirements for 22 licensees to meet in order to show that their 23 containments will perform the pressure barrier 24 function for which they were intended.
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117 1 Petition. They would have you believe that it's 2 enough for them to raise these ancient events and say, 3 look, there's no mention of them in the Application.
4 But what the Application does do, and New 5 York only makes passing reference to this, the 6 Application describes the more recent inspections and 7 the findings of those inspections in which it was 8 determined that whatever degradation and corrosion was 9 observed in the past 15 years was of a minor nature, 10 was consistent with a finding of acceptability, that 11 where degradation or corrosion was found that was not 12 acceptable, it was addressed.
13 And, again, the requirements to address 14 the degradation or corrosion were adopted by the NRC 15 in the 1990s with the incorporation of the ASME code.
16 ASME stands, of course, for the American Society of 17 Mechanical Engineers and it's the boiler and pressure 18 vessel code Section XI and Subsections IWE and IWL.
19 But all of that is missing from New York's 20 Petition.
21 For this reason, it's not enough for you 22 to look at those ancient events and wonder, well, what 23 happened? It was New York's obligation when they 24 filed their Petition to explain to you why those 25 events are still significant for you to consider.
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118 1 They had an obligation to explain to you 2 why is Entergy's analysis or the more recent 3 inspections insufficient?
4 They cite the Application. They point to 5 Entergy's statement that the degradation and corrosion 6 found in recent inspections was determined to be of 7 minor consequence or no consequence.
8 But, they don't have any basis to say that 9 Entergy was wrong in reaching those conclusions.
10 There's nothing that would create a genuine dispute of 11 material fact. And that is what the Commission's 12 regulations require for a contention to be admissible.
13 They have failed to meet that burden.
14 I say that with no disrespect to the 15 State's position. We value the State as an active 16 partner in our oversight of nuclear reactors within 17 the State of New York and we appreciate their 18 comments. They did submit comments on the NRC's 19 proposed granting of the 15-year interval extension to 20 IP-3, the Indian Point Unit 3. We considered those 21 comments when we issued the license amendment for 22 Indian Point Unit 3 and we will consider their 23 comments in their Petition here when we consider 24 whether or not to issue the requested ILRT interval 25 extension for IP-2.
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119 1 But the fact that we may consider their 2 comments doesn't mean that those comments should get 3 them to a hearing.
4 Instead, the Commission's contention 5 requirements are strict by design. The Commission has 6 said that to conserve resources, hearings should only 7 be held for those matters, for those contentions that 8 meet the contention admissibility standards. New York 9 has not met those standards.
10 Your Honors noted, I think it was Judge 11 Abreu, Dr. Abreu, that the overall Integrated Leak 12 Rate Test, that is the Type A test required under 13 Appendix J considers leakage from all pathways, not 14 just through the liner.
15 The containment is pressurized and a drop 16 in pressure is then measured if there is a drop in 17 pressure. But that would include a drop in pressure 18 for all pathways, including the Type B and Type C 19 pathways.
20 And, as Mr. Bessette mentioned, 21 substantially all of the leakage has been found in the 22 past to come through the Type C leakage. And the Type 23 C test, of course, has the containment isolation 24 valves. It was on the basis of the finding that it is 25 mostly responsible for the leakage observed during the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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120 1 ILRT testing that the Commission decided to go with 2 the performance-based approach and to adopt the Type 3 A requirements.
4 And if my recollection serves me right, I 5 believe it was found that 97 percent of the leakage 6 was because of the Type C or Type B and Type C 7 leakage.
8 Now, New York mentioned that there is a 9 trend, an apparent trend. They didn't discover that 10 on their own. They looked at an NRC staff Request for 11 Additional Information where the staff pointed that 12 out to Entergy. And the staff asked Entergy to 13 explain why do we see this trend in the apparent 14 increase in containment pressure numbers in the 15 leakage rate that was detected over time.
16 And we asked them also to account for the 17 portions of the test results that may be attributable 18 to Type B and Type C leakage. And they did so in an 19 RAI response that was submitted to the staff on June 20 15th of this year I believe is the correct date. And 21 we are looking at that and will consider that in our 22 review of the Application.
23 But, as Judge Abreu noted, much of the 24 containment leakage came from the Type C or Type B 25 leakage. And, when you subtract out the Type C NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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121 1 leakage from the Type A test, you get to a much 2 flatter curve than New York is asking you to believe 3 exists for containment liner leakage.
4 JUDGE ABREU: Related to that, you 5 mentioned in your evaluation, so is it correct that 6 while the Federal Register Notice mentions the 7 proposed no significant hazards consideration 8 determination, am I correct then that your statement 9 indicates that that has not been finalized at this 10 time?
11 MR. TURK: That's correct. And, the 12 staff's normal practice would be to complete its 13 review of the Application and to issue a safety 14 evaluation concerning the Application.
15 At the same time, to issue a final no 16 significant hazard consideration determination where 17 a Request for Hearing has been submitted.
18 Because New York has filed a Request for 19 Hearing, we would then proceed as is our normal 20 practice to issue a final NSHC determination.
21 And, by the way, I don't know if this is 22 relevant to your consideration, but in terms of 23 timing, we're expecting to issue a final SE and a 24 determination this fall, possibly September, possibly 25 somewhat later, depending on whether there is any need NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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122 1 to ask further Requests for Additional Information.
2 Your Honors also inquired about the 3 difference between the 0.075 percent criterion and the 4 0.1 percent criterion. And, as you rightly noted, the 5 applicable safety standard is the 0.1 percent LA value 6 of which is the "as found" criterion. The .075 7 percent criterion is "as left."
8 In other words, if during an ILRT it's 9 discovered there's leakage up to the 0.075 standard, 10 then the plant is allowed to restart. If not, then 11 they would be required to do further evaluation or to 12 make any corrections necessary so that the pressure 13 can drop back down again.
14 The standards for the Commission's review 15 of the Application are quite different from the 16 standards for the NSHC determination. The Atomic 17 Energy Act requires the Commission to determine 18 whether an Application is protective of public health 19 and safety, whether there's adequate protection of 20 public health and safety and whether it would be 21 inimical to the common defense and security.
22 A totally different issue is raised by the 23 NSHC determination. For that, we only look to see if 24 there is a significant hazard consideration which 25 would warrant review of the Application and completion NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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123 1 of the review before a hearing is held. It is a 2 procedural step only.
3 And the origin of it, you didn't ask about 4 this, but the origin, as you probably know, goes back 5 to the 1980 Sholly Decision by the U.S. Court of 6 Appeals for the D.C. Circuit.
7 When the D.C. Circuit decided that license 8 amendments require a hearing, the Commission went to 9 Congress and Congress revised the Atomic Energy Act.
10 And they specifically provided the term no significant 11 hazard consideration. It is Congress that imposed 12 that requirement on the Commission to decide whether 13 a hearing needs to be held before the license 14 amendment can be issued.
15 The NRC's regulations which use the same 16 terminology, the no significant hazard consideration, 17 follow Congress's action.
18 The Commission was asked when it adopted 19 the no significant hazard consideration regulation, 20 they were asked specifically to define what is meant 21 by the word significant. Interestingly, the 22 Commission declined to give a definition.
23 If I can, let me read to you from the 24 significant consideration. And I'm looking at a final 25 rule published on March 6, 1986, 15 Federal Register NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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124 1 7744, it's entitled Final Procedures and Standards on 2 No Significant Hazards Consideration.
3 At page 7752 of the Federal Register, the 4 Commission notes that one commenter believes the word 5 significant should be defined if only to forestall 6 court challenges by persons disagreeing with NRC.
7 And page 7753, the Commission responded 8 and indicated that based on a particular proposal --
9 by the way, I'm quoting here -- based on a particular 10 proposal in an amendment request, the Commission 11 welcomes any and all persons comments about the 12 significance of the proposed action.
13 Aside from using examples as guidelines, 14 it believes that the term significant should not be 15 defined in the abstract. It should be left to case by 16 case resolution, close quote.
17 So, if you're looking for Commission 18 precedent in defining what is significant, you would 19 have to examine a case by case evaluation.
20 You haven't asked me about it, and I'm 21 loathe to go there, but in Probabilistic Risk 22 Assessments, the term significance has a totally 23 different meaning.
24 In NEPA, significant has a different 25 meaning.
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125 1 So, the work significant may not have the 2 same meaning in all contexts.
3 In fact, just to get into an area that Ms.
4 Ghosh may address when you hear from her on contention 5 two, under NEPA, the Council on Environmental Quality 6 has identified significance as safe dependent. The 7 safe dependence on the context and the intensity.
8 Though, for NEPA purposes, even the CEQ 9 says it's a case by case determination.
10 IN PRA space, I believe it's fair to say 11 that significance is generally, and I may be 12 oversimplifying, but it's generally an order of 13 magnitude determination.
14 I think -- I would argue to you that for 15 your purposes, because the Commission has not given a 16 strict definition of significance, your definition 17 should look to the circumstances of the case and find 18 that the use of a common dictionary definition is 19 appropriate. And the common definition, the common 20 dictionary definition of significance, to me, seems to 21 be something that is meaningful or important.
22 And that's case by case, it's not a bright 23 line quantitative standard. You would have to decide 24 is there something of a meaningful or important delta 25 in the increased risk that requires further NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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126 1 consideration.
2 In PRA space, it's my understanding that 3 an increase in large early release frequency, or LERF, 4 that would go from 10-7 to 10-6, for instance, might be 5 considered significant. Make sure I haven't misspoke.
6 I'm corrected. A small change under Reg 7 Guide 1.174 Revision 2 would define as small an 8 increase in LERF that has that dimension.
9 Reg Guide 1.174 Revision 2 is entitled 10 Risk Informed Decision Making and it defines a very 11 small increase in risk as follows, quote, when the 12 calculated increase in LERF is very small, which is 13 taken as less than 10-7 per reactor year, the change 14 will be considered regardless of whether there is a 15 calculation of the total LERF, only for context, 16 that's the definition of very small, an increase of 17 less than 10-7 per year in LERF.
18 A small increase in risk is defined as 19 follows, quote, when the calculated increase in LERF 20 is in the range of 10-7 per reactor year, the 10-6 per 21 reactor year, applications will be considered only if 22 it can be reasonably shown that the total LERF is less 23 than 10-5 per reactor year.
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127 1 in LERF.
2 And, I would point out in terms of 3 context, that when the staff makes a no significant 4 hazard consideration determination, it does not use 5 probabilistic methods to reach that conclusion. It is 6 a deterministic assessment only so that we do not use 7 the PRA terminology approach in trying to decide if a 8 matter involves a significant hazard consideration 9 such that a hearing should be held before the 10 amendment is issued.
11 I'm happy that I haven't heard any 12 questions. Unless you have something further --
13 JUDGE ABREU: In the -- what in the 14 Probabilistic Risk Assessment convinces you that 15 Entergy has adequately accounted for the future 16 potential problems that could be caused by some of the 17 issues they've identified? For example, the 190 18 brackish water event which was some would characterize 19 as unusual in the scheme of other plants.
20 MR. TURK: I can't speak for the staff's 21 final evaluation because they haven't presented that 22 to OGC for review. We don't know what the final 23 conclusion will be.
24 But, I do take some note and comfort in 25 the fact that the analysis includes consideration of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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128 1 undetected corrosion. That was part of the Calvert 2 Cliffs methodology which the NRC staff approved and 3 it's done by Indian Point also. So, that even if they 4 have not detected corrosion, they still consider 5 undetected corrosion in their PRA approach.
6 So, even if New York is correct that there 7 may be some undiscovered corrosion, that is 8 incorporated into the PRA analysis.
9 JUDGE ARNOLD: I have one question. I've 10 read over Option B in Appendix J and it's, thankfully, 11 quite short. But, I have not found anything in there 12 to suggest that specific plants should be disqualified 13 from using Option B based upon containment condition 14 or past events even though the historical performance 15 of the containment is satisfactory based upon ILRT 16 results. I mean, basically --
17 MR. TURK: You're correct.
18 JUDGE ARNOLD: Okay. In your opinion, 19 that's not in there?
20 MR. TURK: It's not in there. In fact, I 21 want to get reference to another document. When the 22 NRC adopted the performance-based approach in Option 23 B, they noticed, they expressly stated that there had 24 been many instances of corrosion detected in liners as 25 well as in containment concrete structures. I think NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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129 1 the numbers are in the range of the 30s.
2 Just one moment, Your Honor.
3 I'm looking at a Federal Register Notice 4 of August 8, 1996 and this is the statement for 5 consideration when the NRC adopted its final rule 6 incorporating the codes and standards of the ASME code 7 IWE and IWL sections.
8 This is at 61 Federal Register 41303, 9 August 8, 1996. And the statement of consideration 10 notes that there have been -- I'm sorry, let me quote 11 here.
12 The rate of occurrence of corrosion and 13 degradation of containment structures has been 14 increasing at operating nuclear power plants. There 15 have been 32 reported occurrences of corrosion in 16 metal containments and the liners of concrete 17 containments. This is one-fourth of all operating 18 nuclear power plants.
19 Only four of the 32 occurrences are 20 detected by the current containment inspection 21 programs. Nine were identified by the NRC staff, et 22 cetera.
23 The Federal Register Notice goes on to 24 say, there have been -- quote, there have been 34 25 reported occurrences of degradation of the concrete or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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130 1 of the post-tensioning systems of concrete 2 containments. This is nearly one-half of these types 3 of containments, close quote.
4 So, despite the fact that corrosion and 5 degradation had been found both in liners and concrete 6 containment structures in so many plants, the 7 Commission still found it appropriate to go to the 8 performance-based Option B.
9 So, Indian Point, because it has corrosion 10 degradation, does not fall outside the universe of the 11 plants for which Option B was approved. In fact, it's 12 well within the category of plants that had corrosion 13 and degradation and were still found to be appropriate 14 for Option B.
15 JUDGE HAWKENS: Entergy, in one of its 16 footnotes, referenced about nine -- eight or nine 17 plants that the NRC has granted the 15-year extension 18 to. Is there anything unique about Indian Point Unit 19 2 that would distinguish it from these other plants 20 that have been granted the 15-year extension?
21 MR. TURK: No, and, in fact, let me be a 22 little more specific about the numbers.
23 In fact, there are two different types of 24 extensions that have been granted, either onetime 25 extensions to 15 years or permanent extensions to 15 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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131 1 years.
2 I believe the -- if I can get the correct 3 number -- something like almost all operating nuclear 4 plants have been granted a onetime extension to 15 5 years. I believe the number is 97.
6 The NRC has also granted approximately 12 7 permanent extensions. And there are more Applications 8 sitting with the NRC staff that are under 9 consideration now.
10 And, as Entergy noted, Indian Point Unit 11 3 has been granted a permanent extension of the ILRT 12 interval.
13 JUDGE HAWKENS: Mr. Turk, the Board, at 14 this point has no further questions for you. Unless 15 you have some concluding comments, perhaps we should 16 hear from Ms. Ghosh on contention two.
17 MR. TURK: Yes, thank you, Your Honor.
18 JUDGE HAWKENS: Thank you.
19 MR. GHOSH: Good afternoon, Your Honors.
20 The staff's position on contention two is 21 fully outlined in our brief, but there are a few 22 things that I'd like to respond to based on New York's 23 arguments earlier today.
24 New York argues that Entergy failed to 25 submit an environmental report. But, as we explained NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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132 1 in our brief, Entergy's not required to submit an 2 environmental report under 10 CFR Section 51.53 or any 3 other regulation under the Commission's regulations.
4 New York also argues that the categorical 5 exclusion in 10 CFR 51.22(c)(9) doesn't apply here.
6 And, Mr. Lusignan noted three reasons.
7 One of those reasons he stated was an 8 increase in radioactive effluent into the environment, 9 but, this is the first time that New York has raised 10 this issue. This was not in their original Petition 11 nor was it in their Reply.
12 New York also raises the issue of special 13 circumstances. And, again, this argument was not 14 briefed in their original Petition. It was made for 15 the first time in their Reply. And, it's well 16 established under Commission case law that a Reply 17 cannot expand the scope of arguments set forth in the 18 original hearing request.
19 And, essentially, this is because 20 consideration of new evidence in a Reply brief would 21 deprive the other parties of an opportunity to 22 challenge this new evidence.
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133 1 might be?
2 MS. GHOSH: The NRC doesn't have -- yes 3 the determination of special circumstances is made on 4 a case by case basis. The regulation provides one 5 example, if you would give me one moment.
6 The regulation in 51.22(b) provides the 7 example of -- it states that special circumstances 8 include the circumstance where the proposed action 9 involves unresolved conflicts concerning alternative 10 uses of available resources within the meaning of 11 Section 102.2(e) of NEPA.
12 I'm not sure that's applicable to this 13 case, but beyond that, the Commission has consistently 14 declined to further define what special circumstances 15 mean.
16 In the 1984 categorical exclusion rule, 17 the Commission stated that it's impossible to identify 18 in advance the precise situations which might exist or 19 move the Commission to determine in the future that 20 special circumstances actually do exist.
21 So, this is essentially left to the 22 staff's discretion.
23 JUDGE HAWKENS: To your knowledge, has the 24 staff ever granted 51.22(b) special circumstances?
25 MS. GHOSH: I'm not sure, Your Honor.
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134 1 New York also raises that the no 2 significant hazards consideration determination in the 3 categorical exclusion in (c)(9) is a different issue 4 than what it is under 50.92(c).
5 The staff has consistently interpreted the 6 exclusion in (c)(9)(1) where it states no significant 7 hazards consideration to be the same determination.
8 And, essentially, for each License Amendment 9 Application that comes in under (c)(9), the staff 10 would look to their proposed no significant hazards 11 consideration determination to make that assessment 12 for this categorical exclusion.
13 IN any event, essentially, this contention 14 is inadmissible because it is a challenge both to the 15 no significant hazards determination and the 16 categorical exclusion in (c)(9) and, therefore, the 17 contention should be denied.
18 JUDGE HAWKENS: Okay, thank you.
19 Mr. Lusignan, we've heard now from the 20 licensee and from the NRC staff. You requested 15 21 minutes of rebuttal time. You're on the clock, sir.
22 MR. LUSIGNAN: Thank you, Your Honor.
23 Organize my thoughts here briefly.
24 One issue that came up during Entergy's 25 oral argument had to do with this weld channel and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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135 1 penetration pressurization system, the existence of 2 which was even included in the License Amendment 3 Request but which Entergy now seeks to rely as it 4 being a further safety measure.
5 And, there were some questions about 6 leakage in this WC & PPS system. I want to direct the 7 Board to the 2002 granting of staff safety evaluation 8 of the onetime extension of the Integrated Leak Rate 9 Test to 15 years. On page 9 of that document, it 10 discusses the 1980 flooding event.
11 It indicates that the licensee stated that 12 the WC & PPS was pressurized to 52 pounds per square 13 inch. The gauge pressure during the flood, a pressure 14 higher than that of the flood water so that the water 15 could not have intruded into the system.
16 However, the flood did apparently cause 17 exterior corrosion on some of the piping that supplies 18 WC & PPS air to the weld channels and the base mat and 19 lower wall region.
20 These small diameter pipes pass down 21 through the concrete containment floor to the base mat 22 and lower wall weld channels.
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136 1 leakage. And, subsequently, portions of that system 2 were retired in place.
3 Again, these are under the base mat in an 4 area that's considered inaccessible. And so, the 5 condition of these pipes cannot be tested except 6 through -- or, excuse me, the Integrated Leak Rate 7 Test will test the overall integrity of the 8 containment liner including possible passageways 9 through these pipes that go through the container base 10 mat.
11 I would also agree with a statement by Mr.
12 Turk that the Integrated Leak Rate Test evaluates all 13 leakage pathways and in the event of an accident that 14 releases radiation from the reactor, that radiation 15 will pass through all available pathways. So, the 16 State is not convinced that the difference between 17 whether pressure is escaping through Type A -- whether 18 pressure is escaping through the containment liner 19 values, the pipes or penetrations is sort of 20 irrelevant as far as the risk of that radiation of 21 being released to the environment.
22 The Integrated Leak Rate Test evaluates 23 all potential pathways and gives you a sort total 24 picture of whether that containment remains 25 essentially leak tight as it's required to remain.
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137 1 With respect to the "as left" acceptance 2 criteria, I think this issue's been pretty thoroughly 3 discussed, but just to reiterate that if the leakage 4 rate exceeds that "as left" criteria of .75, the plant 5 cannot come back online after the outage. It has to 6 be brought below that level. In the State's mind, 7 that's essentially a failing result.
8 JUDGE HAWKENS: That's in the State's 9 mind? That's not reflected in the regulations, is it?
10 MR. LUSIGNAN: Well, again, it's reflected 11 in the fact that the plant can't come back online and 12 that's in order to build in a safety margin so that if 13 there's ongoing degradation after that test, it can 14 continue to remain below the ultimate "as found" 15 threshold of .1, which is also further evidence that 16 this containment -- or the containment system is 17 subject to ongoing degradation that can increase with 18 the passage of time.
19 There was discussion about the IP-3 20 License Amendment Request. The State offered comments 21 on that request. The State didn't think that request 22 was a good idea but NRC ended up granting that 23 request.
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138 1 that affected the liner. Also, the Integrated Leak 2 Rate Test historically for IP-3 were more varied.
3 There was no trend towards failure in that case.
4 There was a suggestion by counsel for 5 Entergy that raising the issue of special 6 circumstances would constitute an impermissible 7 challenge to the regulations, that's an argument 8 that's been directly rejected by the ASLB in the 9 Pahaina Hawaii case which is cited in our brief which 10 says that 10 CFR 51.22(b) specifically bestowed upon 11 any interested person the right to challenge the use 12 of a categorical exclusion by presenting special 13 circumstances.
14 JUDGE HAWKENS: You make this argument in 15 your opening brief?
16 MR. LUSIGNAN: Well, the entire thrust of 17 the State's position is that special circumstances 18 exist at Indian Point Unit 2. The fact that we didn't 19 use those specific words underneath contention NYS-2 20 --
21 JUDGE HAWKENS: But, I don't think you 22 even cited 51.22(b) in your initial brief, did you?
23 MR. LUSIGNAN: Well, we cited 51.22(c)(9),
24 so we --
25 JUDGE HAWKENS: But, do you cite 51.22(b)?
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139 1 MR. LUSIGNAN: No, we did not, but we 2 cited --
3 JUDGE HAWKENS: Did you use the term 4 special circumstances in your discussion of the second 5 contention at all?
6 MR. LUSIGNAN: We did not use that 7 specific term, but, again, all of the evidence 8 submitted in out Petition relates to why IP-2 is 9 unique or unusual and why it is ill suited for a 10 reduction in the frequency of these ILRT tests. So, 11 we think that's adequate to give notice to the other 12 parties that that's an issue that the State -- that 13 could -- that falls within the scope of that Petition.
14 Similarly, with respect to the increase in 15 effluence, the State cited 51.22(c)(9) and argued that 16 that categorical exclusion does not apply. There are 17 only three subsections in that categorical exclusion, 18 so we think that there's -- that the other parties are 19 on notice that those issues would be potentially 20 within the scope of the contention.
21 Finally, I'll note that the State doesn't 22 contend that Indian Point not rely on Option B under 23 the regulations. It already is relying on Option B 24 and, under its current licensing basis is required to 25 conduct Integrated Leak Rate Tests every ten years.
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140 1 The State's objecting to the extension of 2 that period to 15 years on a permanent basis which 3 would essentially result in there being only one more 4 Integrated Leak Rate Test in the remaining life of the 5 Indian Point plant.
6 And just one more point about the 7 Probabilistic Risk Assessment, there was both Entergy 8 and NRC staff made reference to the fact that the 9 Calvert Cliffs steel liner corrosion analysis 10 considers the possibility that corrosion will develop 11 in areas of the liner that are inaccessible or not 12 inspectible or that they will go undetected by visual 13 inspections.
14 But, in the RAI where that Calvert Cliffs 15 analysis was developed, it makes clear that the 16 Calvert Cliffs sections that were inaccessible were 17 just an area around a fuel pump and the containment 18 base met. There was no insulation panels as there are 19 in Indian Point Unit 2.
20 So, that's sort of taking a larger portion 21 of the containment out of the inaccessible -- or out 22 of the area that can be visually inspected and it 23 makes that area inaccessible so it should then import 24 that analysis into the Probabilistic Risk Assessment 25 for Indian Point Unit 2 is inappropriate.
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141 1 Ultimately, many of the arguments raised 2 by NRC staff and Entergy go to the merits of the 3 State's contentions.
4 At this stage in the proceeding, we are 5 the contention admissibility phase, the State isn't 6 under the burden to prove that its contention will 7 ultimately be correct.
8 So, to the extent that we're talking about 9 potential minimum pathway leakage rates being -- are 10 throwing the ILRT results or other very specific 11 arguments about whether there is something wrong at 12 IP-2 which is causing this trend in increased leakage 13 historically, those really go to the merits of this 14 dispute.
15 The State has offered one theory for why 16 the leakage rate is increasing and Entergy has offered 17 another theory, and that's an issue that is 18 appropriate to bring to a hearing.
19 Ultimately, there's a very easy way that 20 Entergy could prove the State wrong here and that's to 21 conduct an Integrated Leak Rate Test next year as 22 planned. And, perhaps, if they conducted that test, 23 the results would be well below the "as left" or the 24 "as found" threshold and the State's concerns would be 25 potentially assuaged in that situation.
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142 1 However, ultimately, the State's position 2 is that if Entergy wants to delay this test and 3 continue to expose the millions of people who live 4 around Indian Point Unit 2 to the potential risk of 5 radiation, they should have to comply with the 6 regulations to submit sufficiently plant-specific 7 analysis, give a basis for the NRC to determine that 8 there is a reasonable assurance of protection of the 9 public health and safety and conduct an adequate 10 environmental review of the impact of the License 11 Amendment Request.
12 Ultimately, the only justification that 13 Entergy has submitted for seeking this amendment is 14 that it will reduce the outage time for Indian Point 15 Unit 2 and that it will save costs as well as saving 16 some worker dosage.
17 And, certainly, the State agrees that 18 worker dosage is an important issue, but none of those 19 factors have been evaluated in a methodical way.
20 And, ultimately, in the brief responding 21 to New York State's Petition, Entergy and NRC staff 22 have argued that that information was submitted in a 23 Petition essentially perfulously and that it's not a 24 basis for Entergy's License Amendment Request.
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143 1 expose its citizens to the risk of an uncontrolled 2 release of radiation through the containment, it 3 should have a better reason than that it will save 4 money and outage time. And it certainly should have 5 a better reason than just because the regulations 6 permit it.
7 Ultimately, the State has submitted two 8 general contentions that are supported by a variety of 9 specific fact and information and legal arguments. I 10 think we've been through that all pretty thoroughly 11 today and it's all set forth in our briefs in this 12 matter as well.
13 The State asks that -- the State posits 14 that it has met the threshold contention admissibility 15 standard and asks this court to allow the State to 16 intervene and to set this matter down for a hearing.
17 Thank you, Your Honors.
18 JUDGE HAWKENS: Thank you.
19 Were you able to get any answers to the 20 questions before we --
21 MR. BESSETTE: Yes, Your Honor.
22 JUDGE HAWKENS: -- submit the case?
23 MR. BESSETTE: Two-thirds of a question.
24 JUDGE HAWKENS: All right.
25 MR. BESSETTE: When we found the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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144 1 degradation in the year 2000, the ASME code requires 2 follow up inspections on subsequent three periods.
3 The periodicity is every three and a half years. But, 4 because it requires an outage, it is often more 5 frequently that.
6 We have confirmed that in 2004 and in 7 2006, UT examinations were conducted, that the results 8 are acceptable.
9 And, that's what we've been able to 10 collect so far.
11 Also, there was one question from Dr.
12 Abreu with regard to weld channel degradation and I 13 couldn't really answer that because I wasn't familiar 14 with it and I've gone through New York's pleadings and 15 I see no mention of that. So, I apologize, but I 16 frankly don't know what they're referring to.
17 JUDGE ABREU: I believe Mr. Lusignan 18 pointed out the reference in the previous LAR that it 19 said it was external.
20 MR. BESSETTE: Okay, all right.
21 JUDGE ABREU: Or in the statement he 22 referenced his to.
23 MR. BESSETTE: Yes, and I believe that's 24 referring to the system that supplies the air, not the 25 actual weld channels.
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145 1 MR. O'NEILL: The air supply.
2 MR. BESSETTE: Thank you.
3 JUDGE HAWKENS: Mr. Lusignan, as the 4 Petitioner, I want to give you a final word having 5 just heard from Entergy if you have anything to say.
6 MR. LUSIGNAN: Just to mention that the 7 weld channel -- the WC & PPS system wasn't referred in 8 the License Amendment Request, so there was really no 9 way the State could include it in its Petition which 10 is why that issue has come up sort of subsequent to 11 the Petition.
12 Thank you, Your Honors.
13 JUDGE HAWKENS: Thank you. The case is 14 submitted. We're grateful for everybody joining us 15 here today, for your very useful presentation and 16 responsive answers to our questions. They will be 17 useful to us in the drafting of our decision.
18 Pursuant to the NRC regulatory milestones, 19 we are obliged to issue a decision within 45 days and 20 we will endeavor to do so.
21 Thank you very much, we are adjourned.
22 (Whereupon, the above-entitled matter want 23 off the record at 3:56 p.m.)
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