ML16070A364
| ML16070A364 | |
| Person / Time | |
|---|---|
| Site: | Byron, Braidwood  |
| Issue date: | 03/10/2016 |
| From: | Office of Nuclear Reactor Regulation |
| To: | |
| Garmoe A, NRR/DPR, 301-415-3814 | |
| References | |
| Download: ML16070A364 (83) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Public Meeting to Discuss Exelon Generating Company, Llc's Appeal of Compliance Backfit Affecting Braidwood and Byron Generating Stations Docket Number:
N/A Location:
Rockville, Maryland Date:
March 7, 2016 Work Order No.:
NRC-2218 Pages 1-80 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433
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UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
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4 PUBLIC MEETING TO DISCUSS EXELON GENERATING COMPANY, 5
LLC'S APPEAL OF COMPLIANCE BACKFIT AFFECTING 6
BRAIDWOOD AND BYRON GENERATING STATIONS 7
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8
- MONDAY, 9
MARCH 7, 2016 10
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11 ROCKVILLE, MARYLAND 12
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13 The Public Meeting convened at the Nuclear 14 Regulatory Commission, One White Flint North, Room 15 13B04, 11555 Rockville Pike, at 1:30 p.m.
16 17 NRC PANEL AND PRESENT FROM EXELON:
18 MARISSA BAILEY, NRC 19 BRAD FEWELL, EXELON 20 ALEX GARMOE, NRC 21 ADAM GENDELMAN, NRC 22 ANTHONY GODY, NRC 23 DAVID GULLOTT, EXELON 24 PHIL RAUSH, EXELON 25 DARANI REDDICK, EXELON NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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T-A-B-L-E O-F C-O-N-T-E-N-T-S 2
Opening Remarks..................
3 3
Backfit Review Panel Summary...........
9 4
5 Presentation of Backfit Appeal and NRC Questions.................. 11 6
7 Opportunity for Public Comments and Questions of NRC................... 70 8
Meeting Adjourned................. 79 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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P R O C E E D I N G S 2
1:30 p.m.
3 MR. GARMOE: All right. We'll go ahead 4
and get started and then I'll take us off mute.
5 MS. BAILEY:
Okay.
All right.
- Well, 6
thanks, Alex. First of all, let me welcome all of you 7
to today's meeting and thank you for attending the 8
meeting.
9 The purpose of this meeting is to provide 10 the Braidwood and Byron licensee, Exelon, the 11 opportunity to discuss its backfit appeal and for the 12 Backfit Review Panel to ask any clarifying questions 13 regarding that appeal.
14 I do want to note, and Alex will probably 15 mention this also, that we are transcribing this 16 meeting, but the purpose for the transcription is for 17 transparency and also for convenience so that we can 18 go back and review any information that we did get at 19 this meeting.
20 The transcript for this meeting will be 21 made publicly available once its complete and 22 hopefully within the next week or so.
23 My name is Marissa Bailey. I am the chair 24 for the NRC Backfit Panel that's reviewing your 25 backfit appeal.
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We have Adam Gendelman here, who is with 2
the Office of General Counsel, and Tony Gody, who is 3
with Region II and they're also members of the panel.
4 I
just want to note that our 5
recommendation, you know, our job is to basically give 6
the office director of NRR a recommendation on your 7
appeal.
8 Our recommendation will be based on your 9
December 8, 2015 submittal. The purpose here, again, 10 is for us to ask clarifications for the document that 11 you provided us.
12 So, with that, I'm going to turn it over 13 to Alex to talk about logistics.
14 MR. GARMOE: Greetings. My name is Alex 15 Garmoe. I'm a senior project manager in the Generic 16 Communications Branch of Division of Policy and 17 Rulemaking at NRR. And I'm the lead project manager 18 to support the Backfit Review Panel.
19 So, before we get started with the actual 20 meat of the meeting, I need to cover a few 21 administrative topics.
22 First and foremost, this is a Category 1 23 public meeting.
So, what that means is that the 24 public is invited to observe the initial portion of 25 this meeting, which is a discussion between Exelon and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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the NRC's Backfit Review Panel, which is sitting at 2
the table here.
3 And then after we conclude that 4
discussion, there will be an opportunity for members 5
of the public to ask questions of the NRC.
6 I welcome participants on the phone.
7 Thank you for joining us. Please keep your phones on 8
mute, except to ask questions during the public 9
comment portion of the meeting.
10 If you don't have a mute button on your 11 phone, you can press *6 and that will place your phone 12 on mute by the bridge line. And then you can press *6 13 again to unmute the phone.
14 We do ask that you keep the phone muted by 15 one method or another to help minimize background 16 noise.
17 As Marissa had mentioned, we are 18 transcribing the meeting. And, as she mentioned, it's 19 for transparency, for convenience.
20 We won't be making regulatory decisions at 21 this meeting. So, I want to make sure that's clear.
22 And the transcript, as Marissa mentioned, will be made 23 publicly available in ADAMS. And when I send out the 24 meeting summary, it will have the ML number for the 25 transcript.
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This meeting is scheduled for two hours 2
from 1:30 to 3:30. And as we mentioned before, we're 3
not obligated to fill that time, but it's available to 4
us and we certainly want to ensure that we have a full 5
and complete discussion.
6 For security purposes, NRC policy dictates 7
that visitors are required to wear and display their 8
badges, as well as be escorted at all times within an 9
NRC-controlled space.
10 If you're not an NRC employee, you must be 11 escorted once you enter the elevator lobby on the 12 first floor and then all the floors up above there.
13 So, if you need to leave this room for any reason, 14 please ensure an NRC employee is with you. And we'll 15 make arrangements at the end of the meeting to ensure 16 that you're all allowed to leave.
17 In the event of an emergency, use the 18 stairs, not the elevators. To get to the stairs, we 19 exit the room, go across the elevator lobby, and the 20 stairs are either left or right. The restrooms are 21 located across from the stairs. So, again, across the 22 lobby to the left and to the right.
23 Please turn off or silence cell phones 24 during the meeting so we minimize distractions.
25 There's an attendance list that's circling the room.
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So, please fill out the information and pass the list 2
along.
3 Once it's completed, I'll gather them up 4
at some point here and everybody who's signed the 5
attendance list will get the meeting summary and the 6
transcript once those are made public.
7 Let's see. For those who desire to 8
provide feedback about the public meeting process, 9
please go ahead and email me. My email address is either alex.garmoe@nrc.gov or you can use adg2 --
10 11 that's Alpha Delta Golf 2 -- @nrc.gov 12 And finally the slides that are being 13 shown in the room today are available publicly in 14 ADAMS at ML16062A422. There's a link to the slides on 15 the website for the public meeting. And they're also 16 available in ADAMS at the ML I mentioned. We're not 17
- we, the NRC, are not using any public presentation 18 material at today's meeting.
19 So, at this point, I'll move into 20 introductions. As we mentioned previously due to the 21 large number of people observing in person and on the 22 phone, we're going to go ahead and restrict 23 introductions to those sitting at the table.
24 So, please be sure to clearly state your 25 name, position, company and for those in the NRC, the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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office that you work for within the NRC. So, I'll 2
start off.
3 Once again I'm Alex Garmoe. I'm the lead 4
project manager supporting the Backfit Review Panel 5
and I'm in the Generic Communications Branch at NRR.
6 MR. GODY: I'm Tony Gody, the director of 7
the Division of Reactor Safety, NRC Region II.
8 MR. GENDELMAN: I'm Adam Gendelman. I am 9
the acting deputy assistant general counsel for 10 Reactors and Materials Rulemaking in the Office of the 11 General Counsel at NRC.
12 MS. BAILEY: I'm Marissa Bailey. I'm the 13 acting director for the Division of Engineering in 14 NRR/NRC.
15 MR. RAUSH:
I'm Phil Raush, Exelon 16 Braidwood Nuclear Station, operations director.
17 MR. FEWELL: I'm Brad Fewell. I'm senior 18 vice president for Regulatory Affairs and general 19 counsel for Exelon Generation.
20 MS. REDDICK: I'm Darani Reddick. I'm a 21 regulatory affairs manager and assistant general 22 counsel at Exelon.
23 MR. GULLOTT:
David Gullott, corporate 24 licensing manager for Exelon responsible for Byron and 25 Braidwood.
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MR. GARMOE: Thanks. And then I recognize 2
there's other NRC and Exelon staff around the room.
3 So, in the event as part of the discussion you need to 4
provide some additional perspective or to amplify some 5
of the information, please just be sure to speak your 6
name before you start speaking to help our transcriber 7
and those on the phone. All right.
8 MS. BAILEY: Okay. So, at this point I 9
just would like to spend a few minutes to discuss the 10 backfit review process. And then after that, I'll 11 turn it over to you for your presentation.
12 MR. FEWELL: Thank you.
13 MS. BAILEY: On October 9, 2015, NRC 14 issued a letter imposing a backfit on the Braidwood 15 and Byron nuclear power plants.
16 Broadly speaking, the issue involves the 17 water qualification of relief valves that are 18 predicted in several UFSAR Chapter 15 analyses to 19 relieve water.
20 In its October 9 letter, Exelon was 21 provided with 60 days to appeal the backfit, which 22 they did by letter to the director, Office of NRR 23 dated December 8, 2015.
24 The process by which the NRC addresses 25 backfit appeals is laid out in Management Directive NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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Handbook 8.4, which is titled Management of Facility-2 Specific Backfitting and Information Collection, 3
section III.A.6.
4 Section III.A.6 discusses the backfit 5
appeal process, which in this case is considered a 6
first-level appeal, or an appeal to the Office 7
Director of NRR.
8 The NRR process for addressing a backfit 9
appeal is laid out in Office Instruction LIC-202, 10 procedures for managing plant-specific backfits, and 11 50.54(f), information requests.
12 Section IV.A, which is called Non-13 Adjudicatory Appeal Process, directs that a three-14 member backfit panel review - backfit review panel be 15 appointed by the NRR office director and a public 16 meeting be arranged at which the licensee can present 17 its appeal. And today's meeting is - today's meeting 18 is that public meeting.
19 So, the panel will arrive at its 20 determination based on the information that's 21 discussed in your December 8 letter, as well as 22 information discussed at this meeting and also review 23 of other associated documents. And I think that's all 24 I have to say for that.
25 Any question about the process?
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(No questions.)
2 MS. BAILEY: Okay. Well, let me then turn 3
it over to you for your presentation.
4 MR. FEWELL: All right. Well, thank you, 5
Marissa.
6 PARTICIPANT: Before you start, I have a 7
logistics thing.
8 Is there just one microphone for the 9
meeting?
10 MR. GARMOE: There's built-in microphones 11 in this room.
12 PARTICIPANT: Okay. Because different 13 people it was hard to hear sometimes.
14 MR. GARMOE: Okay. So, just for everybody 15 at the table, let's make sure to speak fairly loudly 16 and clearly and then hopefully the mics will pick us 17 up. Thanks for that feedback.
18 PARTICIPANT: Thank you.
19 MR. GENDELMAN: I'd also just note that, 20 which is funny given that, try not to talk over 21 anyone, because the transcript really struggles with 22 that. And identify yourself if you're speaking, 23 especially for folks on the phone.
24 MR. FEWELL: Okay. Well, hey, thank you 25 all very much for the opportunity to present this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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appeal. And thank you in particular to the panel for 2
the obvious time and effort it takes for you folks to 3
get up to speed on this and pay attention to what we 4
think is certainly an important issue.
5 I'm Brad Fewell. As mentioned, I am the 6
senior vice president for Regulatory Affairs and 7
general counsel at Exelon. And David, Darani and Phil 8
are here at the table to also offer part of the 9
presentation.
10 As Alex alluded to, we've got a number of 11 folks in the room who also are here and will be able 12 to help answer questions should that need arise.
13 After my brief remarks, and they will be 14 brief, we will provide an overview of the backfit-15 related issues, review the criteria for applying the 16 backfit rule most importantly, the compliance 17 exception and explain why the NRC has not satisfied 18 the criteria for use of the compliance exception in 19 this case.
20 As you know and as Marissa mentioned, the 21 NRC issued a backfit determination on October 9th, 22 2015, regarding compliance with General Design 23 Criteria 15, 21 and 29 at Byron and Braidwood 24 stations.
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analysis, which is required by its regulations. Under 2
its own process, NRC would have to perform a cost-3 benefit analysis and justify the action it wants Byron 4
and Braidwood to undertake and to show that it's a 5
substantial safety enhancement before it can impose 6
the backfit.
7 However, in this case, the NRC determined 8
that it could forego that process and that rigorous 9
analysis by invoking an exception to this requirement.
10 Specifically, the NRC conducted no backfit 11
- I'm sorry, the NRC concluded no backfit analysis was 12 required, because the backfit was necessary to bring 13 the facilities into compliance with NRC requirements, 14 otherwise known as the compliance exception to the 15 backfit rule.
16 However, as explained in detail in our 17 appeal, the compliance exception is a narrow one that 18 is only appropriate when the compliance error is due 19 to an omission or mistake of fact.
20 The Commission has made very clear that 21 the compliance exception does not apply and does not 22 allow the NRC to avoid a backfit analysis in cases of 23 new or modified interpretations of compliance. And 24 that is exactly what we have in this particular case.
25 To further clarify, the NRC, not the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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licensee, must demonstrate that there was an omission 2
or mistake of fact. The compliance exception does not 3
apply when the NRC simply asserts without foundation 4
that its historical judgment was erroneous.
5 I like to think of it as a mistake by the 6
NRC does not constitute a mistake of fact or an 7
omission.
8 In this case, we actually don't believe 9
that the NRC originally made a mistake, and we'll 10 touch on some of that as we get into our presentation.
11 This backfit involves Byron and 12 Braidwood's analysis regarding inadvertent operation 13 of the emergency core cooling system and related 14 issues.
15 Even though we may disagree on several 16 items regarding this backfit, our challenge to how the 17 NRC applied the backfit rule does not, and I think 18 this is important to emphasize, detract from Exelon's 19 focus on safety.
20 The plants as they currently exist are 21 safe. None of our positions should be interpreted by 22 the NRC or the public as an attempt to undermine the 23 overarching safety standards.
24 And, in fact, very important to our 25 decision today and our discussion today, these very NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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issues were reviewed and approved by the NRC multiple 2
times in the context of previous licensing actions.
3 While the NRC may now be asking new 4
questions, the facts have remained the same. These 5
new questions support that the staff is now changing 6
its mind on how to interpret the same information that 7
has existed for years.
8 The NRC certainly is allowed to change its 9
mind. That's what the backfit rule allows. But to 10 impose that changed position on a licensee through the 11 compliance exception, the NRC must identify the 12 omission or mistake of fact invalidating its prior 13 approvals, or it must use the backfit rule and do the 14 backfit analysis showing that there is a substantial 15 increase in safety with this change of direction and 16 that it is cost-justified. To date, it is not done 17 either.
18 To be clear, we are not here to debate the 19 technical issues underlying the backfit, which 20 certainly would need to be addressed after the backfit 21 analysis is completed.
22 That technical discussion would be 23 premature at this time since our appeal is focused on 24 the appropriateness of the use of the compliance 25 exception.
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The staff's approach to this backfit is an 2
important issue not just for Byron and Braidwood, but 3
for the industry at large. As the Nuclear Energy 4
Institute noted in its letter of support for our 5
appeal, under the NRC's principles of good regulation 6
the Agency must adhere to its backfit rules to ensure 7
efficient, clear and reliable regulatory oversight.
8 NEI representatives are here at the meeting as well.
9 Again, thank you for the opportunity to 10 present this today and I'll turn it over to David 11 Gullott and Darani Reddick who will provide, really, 12 a fairly brief presentation.
13 And we're certainly glad to answer any 14 questions during the presentation. Or if you 15 determine it might be more efficient, we're happy to 16 answer questions after the presentation. That's 17 really whatever makes the most sense for you folks.
18 So, thank you for your time.
19 MR. GULLOTT: Okay. Thank you, Brad.
20 So, I'm sure the NRC is aware of the 21 details of the backfit, but I do want to start with a 22 brief overview of the key points.
23 So, in the October 2015 NRC letter, Exelon 24 was informed that the current staff conclusions with 25 regard to the Byron and Braidwood USFAR analyses of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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certain anticipated operational occurrences differs 2
from previous NRC approvals and these current 3
positions constitute a backfit.
4 The letter stated that there were five 5
aspects of noncompliance associated with backfit and 6
those were specifically in noncompliance with GDC 15 7
related to reactor coolant system design, GDC 21 8
related to protection system reliability and 9
testability, and GDC 29 which is related to the 10 protection against anticipated operational 11 occurrences.
12 The NRC did also note that there's 13 noncompliance with 10 CFR 50.34(b) related to 14 maintaining a Final Safety Analysis report, and 15 finally a noncompliance with the UFSAR provision 16 related to prohibiting the progression of ANS 17 Condition II events.
18 So, fundamental to the NRC's new 19 conclusion, the necessity of the use of the backfit is 20 a change in NRC position. And the specific changes 21 are, first, that the pressurizer safety valves, or 22 PSVs as we'll call them, are not qualified for water 23 relief. Prior NRC reviews and approvals conclude that 24 the valves could be credited for water relief.
25 The second position is the UFSAR NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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evaluations for inadvertent ECCS injection, CVCS 2
malfunction and inadvertent opening of either a 3
pressurizer safety or relief valve do not meet the 4
Condition II requirements. Prior NRC approvals 5
concluded differently.
6 So, before we go into details of the 7
appeal, it's important to note that the backfit and 8
our appeal itself is not a safety issue. This is 9
based on the conclusions in the UFSAR for these AOOs 10 accurately demonstrate that as evaluated, the 11 potential offsite dose consequences remain far below 12 the limiting transients and accidents.
13 There are other plant system design 14 features, as well as detail procedures and operator 15 training that will provide additional barriers that 16 either prevent or limit the events as they are 17 evaluated in the UFSAR.
18 Also, the current plant operation design 19 is consistent with the NRC with what the NRC has 20 previously approved and determined to be safe. And we 21 continue to operate the plants within the construct of 22 those approvals.
23 And finally, the issues raised in the 24 backfit do not represent a substantial safety hazard 25 as all safety functions continue to be met and there NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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is no undue risk to the health and safety of the 2
public
- and, therefore, adequate protection is 3
maintained.
4 MS. REDDICK: And as you know, the 5
definition of "backfit" is set forth in 10 CFR 6
50.109(a)(1). It includes modifications or additions 7
that flow from NRC staff interpretations of regulatory 8
requirements that are either new or different from 9
previously applicable NRC staff positions.
10 Now, in our case, "new or different" is 11 really the operative phrase that we're talking about.
12 And as we all know, the backfit rule was intended to 13 promote regulatory stability and increase overall 14 safety.
15 The Commission has long recognized the 16 importance of subjecting new or different 17 interpretations to the analytical requirements of the 18 backfit rule. Therefore, in accordance with 10 CFR 19 50.109, the staff must perform a systematic and 20 documented evaluation of a backfit unless it 21 determines that one of the exceptions to the backfit 22 rule applies.
23 After concluding or conducting this 24 backfit analysis, the staff must determine that the 25 backfit would result in a substantial increase to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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overall safety and that it is also cost-justified.
2 But of course in this case, the staff did not perform 3
a backfit analysis on the basis that the compliance 4
exception applied.
5 The compliance exception is also set forth 6
in 50.109. It provides that a backfit analysis is not 7
required when the backfit is necessary to bring a 8
facility into compliance with either NRC requirements 9
or with a licensee's written commitments.
10 Now, the Commission has explained very 11 clearly what the purpose of the compliance exception 12 is. This is stated in the Statements of Consideration 13 for the 1985 revisions to the backfit rule, as well as 14 NUREG-1409, which of course are the backfitting 15 guidelines.
16 In there, the Commission has stated that 17 the purpose of the compliance exception is meant to 18 cover narrow circumstances in which an omission or a 19 mistake of fact has led the licensee to be out of 20 compliance with an NRC requirement that was known and 21 established at the time of the omission or a mistake 22 of fact.
23 An example of an mission could be where 24 the staff knew that it should have considered certain 25 information, but did not consider that information.
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Had it considered that information, it would have 2
determined the licensee was not in compliance.
3 Similarly, an example of a mistake of fact 4
would be where the licensee relied on - or the staff 5
relied on an erroneous mathematical calculation that 6
otherwise would have led it to conclude the licensee 7
was not in compliance.
8 Now, not only has the Commission said what 9
the compliance exception is meant to cover, it has 10 also said what it is not intended to cover. And that 11 is situations where the staff has developed new or 12 modified interpretations of what constitutes 13 compliance. That does not fall within the compliance 14 exception.
15 So, the staff changing its mind on what is 16 required for compliance is not an omission or a 17 mistake of fact covered by the compliance exception.
18 And to consider it that way, to interpret it as such 19 would really defeat the purpose of the exception and 20 the rule. It's directly contrary to the Commission's 21 stated intent behind the exception and the rule and 22 effectively I think it would just - it would allow the 23 exception to swallow the rule.
24 So, the compliance exception does not 25 permit the staff to forego a backfit analysis when NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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there is no omission or mistake of fact, but rather 2
when there is only a change in staff interpretations 3
of what constitutes compliance.
4 And in those circumstances, which is the 5
case that we have here, a backfit analysis is 6
required.
7 And of course here the staff relies on --
8 MR. GENDELMAN: I'm sorry. Maybe this is 9
a good time to ask a question. When you gave examples 10 of a compliance exception, I want to better understand 11 that in the context of something that Mr. Fewell said 12 in terms of the idea that it can't be an NRC mistake.
13 Do you understand a mistake of fact or 14 omission to be a certain party's mistake of fact or 15 omission? Is it the licensee's? Is it the NRC's?
16 Can you fill that out a little more for me?
17 MS. REDDICK: Yeah, and I think - and Brad 18 can elucidate on this as well. What I think he was 19 referring to was that it's not just a plain mistake.
20 It's a mistake of fact.
21 And I don't believe that we attribute that 22 to any party, but it's the reliance on whatever that 23 mistake of fact or omission would be. So, directly to 24 answer your question, I don't think we're saying that 25 it has to be a licensee's mistake of fact or it has to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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be the staff's mistake of fact, but it's a mistake of 2
fact, not just a mistake.
3 MR. GENDELMAN: So, if, I mean, this 4
hypothetical is going to come up a lot, I'm sure. If 5
a requirement says something must be 10 feet high and 6
there's an application that clearly provides for a 7
nine-foot thing and it clearly says we're going to 8
build it nine feet high and that's reviewed and it's 9
in the RAI, it's nine feet, right? And the response 10 is, yep, and then a positive regulatory finding is 11 made.
12 It's your view that that would not be a 13 mistake of fact and that a compliance backfit in that 14 circumstance would be inappropriate.
15 MS. REDDICK: So, it would, I think, 16 depend on what the staff is basing its decision on for 17 the mistake of fact.
18 And, again, here I should reiterate that 19 we're not saying that there's any compliance exception 20 whatsoever.
21 I think the basis for our appeal right now 22 is that we don't know what that omission or mistake of 23 fact is, because the staff has not identified that in 24 the backfit evaluation.
25 And that's sort of on this next slide what NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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we were talking about here is what the backfit 2
evaluation says. It doesn't identify an omission or 3
mistake of fact.
4 And as Dave will talk about in the next 5
slides, the NRC has reviewed this several times in the 6
past and has approved this several times, but the 7
evaluation, the backfit evaluation itself does not 8
identify any omission or mistake of fact that 9
undermines those prior approvals.
10 Now, what it does say is that the prior 11 conclusions were based upon the use of water-qualified 12 PSVs that was later determined to be, quote, 13 unsubstantiated, but there is really no explanation in 14 the backfit evaluation of how the prior approvals are 15 unsubstantiated or those conclusions are 16 unsubstantiated.
17 And more importantly for the purpose of 18 the backfit exception - or the compliance exception, 19 there's no explanation of how this unsubstantiated 20 conclusion is an omission or a mistake of fact or how 21 that undermines what those prior approvals are.
22 MR. GENDELMAN: So, is the answer to my 23 question yes?
24 MR. FEWELL: So, let me try to answer your 25 question. So, if everybody knew that the wall was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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nine foot even though the requirement said 10 foot, 2
the licensee knew it was nine foot, NRC knew it was 3
nine foot, but because of whatever the licensee was 4
doing that the NRC reviewed and determined that the 5
nine-foot wall complied with the 10-foot requirement 6
because of A, B, C and D and everybody went into it 7
with their eyes wide open, nobody thought that the 8
wall was 10-foot tall and somehow different than nine 9
foot, and that everybody agreed upon all of the facts 10 that were there at the time, then I would suggest that 11 the compliance exception would not apply and that the 12 NRC would be required to perform a backfit analysis 13 because they have then, therefore, changed what had 14 been an unaccepted regulatory position that the 15 licensee relied upon, the NRC relied upon, because you 16 got to go back a little bit to the whole purpose of 17 the backfit rule, which is regulatory certainty.
18 And, you know, if at the time the NRC 19 would have said, no, the wall needs to be 10 feet tall 20 and we mean 10 feet, then presumably the licensee 21 would have complied at that time and there would have 22 not been need for further discussion.
23 The other thing that Darani was mentioning 24 and I think is important as well, is -- even aside 25 from your example, what the NRC in this case, the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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staff has failed to do, is to even point out what is, 2
in fact, the omission or mistake of fact in the 3
document that they have provided. And they've not 4
met, if you will, their burden of proof to articulate 5
or to show what that mistake of fact or omission was.
6 MS. REDDICK: And just in your scenario 7
just like Brad was saying, the mistake of fact would 8
have been if everyone thought the wall was 10 feet 9
tall and that was the basis for the approval.
10 If everyone understood the facts at the 11 time, which was it's nine feet, but for whatever 12 reasons nine feet constitutes compliance with the 10-13 foot requirement, that's where there would be no 14 mistake of fact.
15 MR. GENDELMAN: I mean, we could 16 completely have --
17 MR. GODY: So, why don't you ask the 18 question about if the statement of fact was 19 transitioned from a Category II to a Category III.
20 So, if the mistake and/or the omission -- fact that 21 was omitted was a transition from Category II to 22 Category III event - or Condition II to Condition III.
23 I notice in your FSAR dated December of 24 2002 it says, if the pressurizer safety relief valves 25 do not reseat, then the transient will proceed and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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terminate as described in section 15.6.1, which is 2
titled Inadvertent Opening of a Pressurizer Safety or 3
Relief Valve.
4 And the last sentence of the paragraph 5
says, this event is also classified as an event of 6
moderate frequency.
7 Are you saying that that is a Category --
8 or a Condition II or a Condition III event?
9 MR. GULLOTT: That's a Category --
10 Condition II event in our UFSAR, and I believe in the 11
-- I'm confident it is also in the ANS --
12 MR. GODY: So, the failure of pressurizer 13 safety or pressurizer PORV to reseat is categorized as 14 a Condition II event in your FSAR?
15 MR. GULLOTT: No. The inadvertent opening 16 of a safety valve or a PORV, that initiating event is 17 a Condition II event in our UFSAR.
18 MR. GODY: Okay. Let me restate the 19 paragraph that's written in your FSAR. If the 20 pressurizer safety relief valves do not reseat, that 21 means they stick open --
22 MR. GULLOTT: Right.
23 MR. GODY: -- then the transient will 24 proceed and terminate as described in section 15.6.1, 25 the title of which is Inadvertent Opening of a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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Pressurizer Safety Relief Valve.
2 This event, and I'm hoping that when I 3
read the words, this event, it is referring to the 4
pressurizer safety valve not reseating, but it says, 5
this event is also classified as an event of moderate 6
frequency.
7 In the FSAR, does that say that this is a 8
-- this, the failure of a pressurizer safety valve to 9
reseat, is a Condition II event? Is that what you're 10 saying in your FSAR?
11 MR. GULLOTT: I don't believe that -- no, 12 that's not what we're saying in the FSAR.
13 MR. GODY: So, the event you're referring 14 to is the title of the section --
15 MR. GULLOTT: Yes.
16 MR. GODY: -- 15.6.1, not necessarily the 17 lead-in sentence to this paragraph. Very confusing 18 paragraph.
19 MR. GULLOTT: I understand.
20 MR. GENDELMAN: We have a hand.
21 MR. GULLOTT: John, do you want to --
22 MR. PANICI: Yes. This is Giovanni 23
- Panici, John Panici.
I'm here with Design 24 Engineering.
25 We have revised that paragraph in December NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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of '14 to clarify what it stood for.
2 MR. GODY: So, this is old?
3 MR. PANICI: If it's 2002, it is old.
4 MR. GODY: Okay.
5 MR. PANICI: The paragraph now reads, 6
during operation ECCS to a power operation event does 7
not progress until a valve is located. Both the 8
valves may lift in response to the event, but they 9
will reclose. Resulting leakage from the safety valves 10 that are seated and bounded by the flow of the one 11 fully opened valve. The consequences of the event are 12 bounded by the analysis described in USFAR section 13 15.6.1, inadvertent opening of the pressurizer safety 14 relief valve. And this event is also classified as an 15 event of moderate frequency. The --
16 MR. GODY: The inadvertent opening of it, 17 but not the failure to reseat.
18 MR. PANICI: Right.
19 MR. GODY: So, you're actually crediting 20 reseating.
21 MR. PANICI: Yes, sir.
22 MR. GODY: Okay. That's important.
23 MR. GULLOTT: So, as Darani discussed, the 24 NRC talks about the unsubstantiated conclusion with 25 regard to the PSVs. And Exelon does not agree that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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there is any unsubstantiated conclusion or that there 2
is a mistake of fact or omission in the prior NRC 3
approvals.
4 And this is clear from the prior -- the 5
historical NRC correspondence. And the reviews that 6
the NRC performed in those prior licensing actions in 7
2001 and 2004 were thorough and comprehensive.
8 And I'd like to take some time to discuss 9
the depth of those NRC reviews, because they really 10 show what the NRC considered when they approved those 11 licensing actions.
12 There's a chart on the next slide, which 13 I won't go to at this point, but that outlines the 14 prior NRC approvals. And then on the back of the 15 presentation there are some references, the same 16 references that were in our appeal letter. Okay.
17 The current licensing basis for 18 inadvertent ECCS event was established in the 2001 19 power uprate approval and a license amendment request 20 laid out the current UFSAR analysis for this event, 21 which did include the pressurizer becoming water solid 22 and crediting the PSVs for water discharge and then 23 would subsequently reclose.
24 And during its review, the NRC did ask us 25 some very specific questions related to water solid NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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pressurizer and the operation of the PSVs.
2 So, and in one RAI the NRC recognized that 3
the pressurizer would go water solid and that the NRC 4
has not typically accepted a solid pressurizer as for 5
this accident to avoid the potential for the valves to 6
stick open.
7 We responded to that RAI and the basis --
8 in that RAI response, we provided the basis for 9
allowing the pressurizer from water solid and 10 crediting the PSV's ability to pass water to mitigate 11 the event.
12 And the conclusions were based on meeting 13 all the Condition II event acceptance criteria even 14 with the water solid pressurizer.
15 And so, specifically the RCS remains below 16 110 percent of the design pressure. The minimum 17 departure for nucleate boiling remains above the DNBR 18 limit. And based on performance testing of the valves 19 in response to NUREG-0737, it was concluded that the 20 PSVs would reseat and the event will not progress to 21 a Condition III event.
22 And Exelon in that RAI response concluded 23 that since all the Condition II acceptance criteria 24 was met, that no plant modifications or additional 25 reanalysis were required.
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So, as part of this review the NRC did 2
perform a detailed review of the NUREG-0737 EPRI 3
qualification program, and the NRC's prior endorsement 4
of the associated TER, and then asked a subsequent RAI 5
that related to the EPRI testing conditions and how 6
they were applicable to Byron and Braidwood.
7 And in our docketed response, we provided 8
the details on the applicability of the EPRI testing 9
to the inadvertent ECCS event. And again we concluded 10 that the event does not progress to a Condition III 11 event because the assurance that the PSVs will close 12 following water discharge, and the NRC agreed with 13 that.
14 The details of the NRC's review were 15 documented in the 2001 power uprate safety evaluation 16 where the NRC concluded, and I quote, crediting of the 17 PSVs to discharge liquid water during a spurious SI 18 event to be acceptable, unquote.
19 Now, subsequent to that as part of the 20 2004 PSV setpoint license amendment, the same events 21 were discussed and the analysis conclusions were 22 reaffirmed.
23 Again, the NRC reviewed the details of the 24 AOO analyses and they asked for a quantitative 25 evaluation of the impact of the setpoint change on the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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AOO results.
2 And Exelon provided this quantitative 3
evaluation, which again demonstrated that the EPRI 4
testing qualified the valves under bounding conditions 5
and that the inadvertent ECCS event does not progress 6
to a Condition III event because of reasonable 7
assurance that the PSVs would close.
8 Now, the analysis described in our LAR and 9
the subsequent RAIs was addressed in the 2004 safety 10 evaluation that the NRC issued and the staff concluded 11 that, quote, reanalysis is acceptable to assure that 12 the PSVs will remain operable following a spurious SI 13 event, unquote.
14 So, it's clear from the docketed history 15 that the NRC asked questions and probed into the 16 details of our analysis on the PSV qualification 17 program and its applicability to the AOOs, we've 18 reviewed on at least two separate occasions the 19 approach that the events could be mitigated by water 20 discharge through the PSVs, and the conclusion that 21 the events do not progress to a Condition III event 22 was evaluated and supported by the NRC. And 23 compliance with GDC 15 was assured and the DNBR limits 24 were maintained.
25 Now, the NRC considered the details of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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current analysis and they did find them acceptable.
2 And our plant continues to operate within the -- like 3
I said earlier, the confines of those prior NRC 4
approvals.
5 Now, the only thing that's changed is the 6
NRC's position with regard to these events. And 7
therefore the NRC has appropriately entered into the 8
backfit process. Where we disagree, and the point of 9
our appeal, is in the use of the compliance exception.
10 So, as stated by the Commission and 11 discussed earlier today, it must be demonstrated that 12 there was an omission or mistake of fact in order to 13 invoke the compliance exception and the NRC has not 14 identified either.
15 And it's clear from the docketed 16 correspondence that the NRC reviewed the -- the review 17 of it was thorough, and it was comprehensive, and that 18 there was no omission in these reviews. All the 19 necessary information was available at the time of the 20 NRC reviews.
21 Nor does the NRC identify factual mistakes 22 in those prior approvals. And to be clear, a 23 difference of opinion or new position on what 24 constitutes compliance is not a mistake of fact as we 25 discussed earlier. And right now treating it as such NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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would effectively render meaningless the backfit 2
rule's protections. Therefore, it's our conclusion 3
that the use of compliance exception is not justified.
4 What the backfit evaluation does do is 5
provide a lot of discussion on new or modified 6
interpretations in AOO's analyses without explaining 7
how compliance is no longer achieved.
8 This and other technical-related issues or 9
issues related to the interpretations aren't the focus 10 of this meeting or our appeal, but may have to be 11 addressed in a future stage of the backfit process.
12 These interpretations appear to be the 13 NRC's current position, but the compliance exception 14 was not intended to be used in instances such as this 15 where the NRC has changed its mind.
16 So, obviously the panel has to respond to 17 our appeal. And if the staff does - or the panel does 18 identify a potential omission or mistake of fact, 19 supports compliance exception, Exelon will review the 20 basis and expect the opportunity to respond.
21 MR. FEWELL: Yeah, so that's really the 22 conclusion of our formal presentation. I think we've 23 beat that horse pretty hard and made our point 24 relatively clear fairly simply, but obviously we're 25 happy to answer any additional questions you have on NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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any of the topics we've discussed.
2 MR. GENDELMAN: So, a couple of different 3
phrases I've heard, credited to relieve water and 4
water qualified.
5 Are the valves water qualified?
6 MR. GULLOTT: Yes, our conclusion is the 7
valves are water qualified.
8 MR. GENDELMAN: Do you think that's the 9
staff's position?
10 MR. GULLOTT: I would be - based on 11 reading the letter, the backfit evaluation, I would be 12 speculating because it's not as clear. It wasn't 13 clearly articulated, but I would speculate, no, that 14 is not the staff's position.
15 MR. GENDELMAN: So, in the backfit itself 16 there are two references to the ASME code about water 17 qualification.
18 MR. GULLOTT: Uh-huh.
19 MR. GENDELMAN: And so, your view is that 20 these have been satisfied?
21 MR. GULLOTT; No, Exelon's view - our view 22 is that those for the application we're using these 23 valves in this event, these vales open to allow flow 24 path of water when the pressurizer comes to water 25 solid.
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That event is not an RCS over 2
pressurization event. Those valves do not function to 3
perform the over pressure protection function.
4 The ASME code, and specifically the 5
appendices for relief valve testing, relief valve 6
qualification, are all related to the over pressure 7
protection function of a safety valve or a relief 8
valve.
9 The -- and the code explicitly says that 10 it's not intended for other functions that a valve may 11 have.
12 MS. REDDICK: And I think --
13 MR. GULLOTT: Go ahead.
14 MS. REDDICK: I was going to say I think 15 that, you know, the technical discussion that you're 16 asking about right now is certainly valid and that's 17 something obviously Dave and others are ready to 18 engage on, but I want to bring us back as well to the 19 compliance exception because those things that you're 20 referencing in the backfit evaluation are not 21 specifically called out as omissions or mistakes of 22 fact.
23 So, we don't -- we haven't had the 24 opportunity really to even rebut what any particular 25 omission or mistake of fact may have been.
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MR. GODY: So the PORVs, the pressurizer 2
power-operated relief valves --
3 MR. GULLOTT: Yes.
4 MR. GODY: -- are they safety-related?
5 MR. GULLOTT: Yes --
6 MR. RAUSH: Yes, they are.
7 MR. GULLOTT: -- they are safety-related.
8 MR. PANICI:
The only piece that's not 9
safety -- circuit three, is a non-safety relief 10 variable.
11 MR. GODY: Are the power-operated relief 12 valves or the pressurizer block valves, are they 13 safety-related?
14 MR. PANICI: Yes.
15 MR. GODY: Have you done an analysis to 16 determine how many times the power-operated relief 17 valves will cycle in an RCS increase-in-inventory 18 event before it's terminated?
19 MR. GULLOTT: John.
20 MR. PANICI: I do not recall if we have 21 the number of cycles for PORVs.
22 MR. GODY: Have you compared that to the 23 time it would take an operator to isolate the power-24 operated relief valve?
25 MR. GULLOTT: No, not that I'm aware of.
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I do not know.
2 MR. GODY: I think by claiming that - and 3
this is where I'm going: The power-operated relief 4
valves will cycle and open before the pressurizer 5
safety valves, correct?
6 MR. PANICI: That is correct.
7 MR. GULLOTT: Yes, based on the cycle.
8 MR. GODY: And if a power-operated relief 9
valve were to fail in that process, I would assume 10 that the operators would have some time critical 11 action to isolate it?
12 MR. GULLOTT: Phil, do they have a time 13 critical action there?
14 MR. RAUSH: There is response actions in 15 the emergency procedures to close a stuck open 16 pressurizer PORV.
And if that doesn't work, then 17 close the associated blackout.
18 I'm not certain whether or not that is a 19 time critical operator action or not.
20 MR. GODY: Okay. That's fine.
21 Can you state that the power-operated 22 relief valve and its associated block valve are 23 qualified to do those operations?
24 MR. JURY: Are you asking qualified with 25 respect to the ASME code, Tony?
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MR. GODY: Qualified with respect to the 2
ASME code that they're tested with both steam and 3
water that they're qualified to shut against a fully-4 opened power-operated relief valve and that you do 5
have procedures in place, maybe not time critical, to 6
do that, to isolate that small break loss of coolant 7
accident which might occur.
8 MR. RAUSH:
I don't know about the 9
qualification, but clearly the block valves were 10 designed to isolate a stuck open pressurizer PORV.
11 I don't specifically what pedigree we have 12 for the qualification for closing those, but, clearly, 13 yes, that is an operator response is to close it.
14 MR. GULLOTT: And both those valves are in 15 tech specs for those functions.
16 MR. RAUSH: Correct. The function of the 17 pressurizer PORV block valve is to isolate a leaking 18 pressurizer PORV and that's their tech spec recorded 19 function is to be able to close.
20 But regarding the design analysis we had 21 to support the qualification, I'm not familiar with 22 that.
23 MR. GODY:
So, do you recall NRC 24 regulatory issue summary 2005-29 that communicates the 25 NRC's position on crediting closure of a PORV -- I'm NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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going to use the acronym now -- the PORV and its block 2
valve to isolate a small break LOCA so that you can 3
take credit for that function in an increase in RCS 4
inventory event to prevent it from going to a 5
Condition III?
6 MS. REDDICK: If I can, I'll jump in 7
before our technical guys answer. I would say that -
8 and I'm not qualified to talk about the technical 9
aspects of that, but the 2005 RIS that you're 10 referring to is interesting because in the 11 nonconcurrence that appears to support the basis for 12 the backfit evaluation, it states that the licensee 13 has been out of compliance since the 2005 RIS.
14 Which would mean that in 2001 and 2004 15 when the NRC made the prior approvals that we were in 16 compliance, in which case there could be no omission 17 or mistake of fact that would support the compliance 18 exception here.
19 So, I think sort of the logic in the 20 discussion about the role of the RIS, it doesn't 21 square with the use of the compliance exception, but 22 I'll - I'll let the technical folks -
23 MR. GODY: And I do understand that. As 24 a matter of fact, you can twist it around the other 25 way and say that the previous staff approvals in 2001 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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and 2004 occurred before the NRC's position or 2
realization occurred in 2005 and make an argument the 3
actually opposite way and say that the previous NRC 4
approvals were done without this realization of 5
information in this RIS.
6 MS. REDDICK: And even if that were the 7
case, though, that would not support the idea that 8
there was an omission or mistake of fact at the time 9
of the previous approvals.
10 MR. GODY: That is correct. I agree with 11 that.
12 So, the RIS is real clear about, you know, 13 if you're going to credit closure of that RCS leak 14 path, then it needs to be safety-related and all the 15 attending things that go along with the term safety-16 related, qualification, testing, tech specs.
17 MR. RAUSH: Correct. And our pressurizer 18 PORV block valves are safety-related.
They're fed 19 from Class 1E power. They're on the emergency diesel 20 generators. So, they have full pedigree.
21 The pressurizer PORVs are also safety-22 related although, as John pointed out, the automatic 23 opening pressure is not. We rely on manually opening 24 and closing those valves to depressurize the reactor 25 coolant system for a steam generator tube rupture NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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event or to cool down the plant.
2 So, they do have a safety-related air 3
supply. There is a sufficient volume of air to allow 4
those pressurizer PORVs to function during those 5
accidents that we credit them for and they're also fed 6
from safety-related Class 1E power.
7 The only portion of that circuit -- we 8
actually use those also for the low pressure over-9 pressurization system.
10 The normal at-power line of those bi-11 stables that open that RCS pressure are not safety-12 related. They're in the balance-of-plant instrument 13 regs and therefore we don't credit the automatic 14 opening of those valves.
15 MR. GODY: Which is why you're relying on 16 your pressurizer safety vales for opening and closing.
17 MR. RAUSH: I'm not sure if that's why 18 we're relying on them, but that was the original 19 analysis and licensing bases from early on and we just 20
-- we haven't changed that.
21 MR. GODY: So, the conversation we just 22 had is very clear in the backfit paper, right? There 23 is a very clear paragraph that discusses the need to 24 have -- the safety-related nature of the PORV and its 25 block valve and to eliminate that as a potential NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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transition point to a Category III event. So, when I 2
read this, the words in this backfit, that's very 3
clear.
4 So, I'm saying that the staff didn't 5
articulate the basis - or this is at least one piece 6
of it that I think is quite clear.
7 MR. GULLOTT: Tony, could you - sorry.
8 Could you walk me through that again. I just -
9 MR. GODY: Okay. I'll read a sentence out 10 of the --
11 MR. GULLOTT: And you're reading from --
12 MR. GODY: This is the actual backfit --
13 MR. GULLOTT: Okay. Okay.
14 MR. GODY: -- that was submitted to you on 15 October 9th, 2015.
16 MR. GULLOTT: Okay.
17 MR. GODY: I'm not going to read this 18 whole paragraph.
19 MR. GULLOTT: I understand.
20 MR. GODY: The Byron and Braidwood 21 licensing basis of IOECCS, inadvertent operation of 22 emergency core cooling system, analysis is based on 23 the nonconservative assumption that PORVs, power-24 operated relief valves, and sprays are not available.
25 NRC interprets this assumption to mean that the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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licensee believes that the failure of a PORV to reseat 2
need not be addressed since a stuck open PORV could be 3
easily remedied by closing its block valve. This is 4
an approach that was recommended in 1993. The staff 5
rejected it in 2005.
That's the RIS.
The 6
recommendation was repeated by 7
a vendor in 2007 and it 8
continues to be unacceptable to NRC staff because a 9
stuck open PORV is a Condition III uncontrolled loss 10 of RCS inventory in excess of normal makeup system 11 capacity, not a Condition II IOECCS.
12 MS. REDDICK: If I may, I would just jump 13 in that, you know, I think what you're reading from is 14 an explanation of what the staff's current position 15 is.
16 What we're saying is that there is no 17 explanation by the staff in that backfit evaluation of 18 how - what the NRC previously approved was based on an 19 omission or mistake of fact. That may explain what 20 the NRC staff's current position is.
21 MR. GODY: Right, but it was - the current 22 position was formed in 2005.
And the previous 23 references were 2001, 2004. So, it might explain.
24 I'm just saying it's possible.
25 MS. REDDICK: But it still, I think, does NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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not explain what that omission or mistake of fact 2
could be.
3 MR. GENDELMAN: I want to get there, but 4
I'll follow this train through. So, if - so, on this 5
idea of Condition II to Condition III if new 6
information comes to light that shows that what was 7
thought to be something that would not go from two to 8
three does, so it's just an empirically factual piece 9
of new information, that this particular configuration 10 we thought wouldn't become a three and it happened at 11 a bunch of plants and every single one of them went 12 from two to three and it was whatever you want to call 13 it, a mutual mistake, a mutual misunderstanding as to 14 how systems would perform under certain circumstances, 15 but it is empirically the case that what, say, the 16 licensee and NRC thought would stay as a two, doesn't 17 and this new information comes to light, RISes, reg 18 guides, et cetera, are at issue.
19 Is it your view that that could not be an 20 appropriate subject for a compliance backfit even 21 though the position on twos not going to threes is 22 consistent, because with regard to that particular 23 component the view changed, but it changed insofar as 24 it turns out our understanding of the universe was 25 incomplete?
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MS. REDDICK: Yeah, I mean, I think the 2
case is that in order to afford the backfit 3
protections that the NRC, that the Commission 4
intended, you can't have this sort of evolving 5
standard, which means you can't discontinue new 6
information as new information comes to light. It has 7
to be information that was known at the time.
8 I think that's why -
9 MR. GENDELMAN: Well, what was known at 10 the time is twos can't become threes. So, what I'm 11 trying to understand is if a particular part, say, 12 fails in a certain circumstance that it wasn't known 13 to fail, but it does fleet-wide. So, if that two, 14 according to noncurrent licensing documents, occurs, 15 it will, in all cases, become a three.
16 And then further assume that the agency 17 has had a longstanding position that twos can't become 18 threes. That still can't be a compliance backfit 19 under your view.
20 MS. REDDICK: So, and maybe Dave can jump 21 in here, too, but I think your question is whether -
22 not whether there's a prohibition on the escalation 23 from two to three, but whether the particular event in 24 question actually qualifies as a two versus a three.
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once that new information comes to light, it is a 2
three. Whatever you want to call it.
3 I mean, if the physics of the universe are 4
such that this particular condition results in an 5
accident that is described as a Condition III, it is 6
a three whether the licensing documents or our 7
documents, for that matter, reflect it or not, right?
8 MR. GULLOTT: Well, what we've struggled 9
to understand is if the hypothetical you are bringing 10 up is a hypothetical mirrored off of this event.
11 We've struggled to understand and review of the 12 backfit evaluation is just that.
13 It's - there's a lot of discussion, 14 technical discussion in the backfit evaluation that we 15 have looked at, studied, and in several areas do not 16 understand how the NRC came to these conclusions.
17 Now, that is - those technical discussions 18 and, Adam, a little bit to what you were talking about 19 here is, in our view, outside of the use of the 20 compliance exception.
21 And if this process moves down the road 22 into another stage, those are all discussions we would 23 have to have with the NRC.
24 MS. BAILEY: So, maybe you're going to 25 have to connect the dots for me, but you did mention NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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a couple of times that the NRC changed its position.
2 MR. GULLOTT: Umhm.
3 MS. BAILEY: And I think in the October 4
9th letter, NRC did acknowledge that the staff changed 5
its position with respect to compliance with the GDCs 6
with the regulatory requirements.
7 MR. GENDELMAN: For Byron and Braidwood.
8 MS. BAILEY: For Byron and Braidwood. I 9
guess I'd like to understand from you where 10 specifically you think the staff changed its position 11 other than, you know, they don't comply with the GDCs 12 for Byron and Braidwood.
13 MR. GULLOTT: The -- I can't speak to 14 where the staff changed their position on the GDCs 15 because we --
16 MS. BAILEY: But you have a view because 17 you're --
18 MR. GULLOTT: Well --
19 MS.
BAILEY:
saying that the 20 application -
21 MR. GULLOTT: With regard --
22 MS. BAILEY: -- of the compliance of 23 backfit is incorrect.
24 MR. GULLOTT: With regard to the GDCs, we 25 don't understand the current staff's position, because NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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it wasn't articulated. Okay?
2 With regard to where the NRC has changed 3
its position specifically, the NRC has not changed its 4
position that a Condition II event cannot progress to 5
a Condition III event.
6 MS. BAILEY: Okay.
7 MR. GULLOTT: The UFSAR is clear on that, 8
the NRC has been clear on that since, you know, 9
forever as far as we can find.
10 Where the NRC has changed its position 11 with regard to that is that these particular events as 12 analyzed for Byron and Braidwood, the NRC agreed 13 previously that crediting the valves to close was 14 acceptable and, therefore, these events did not 15 progress to a Condition III event.
16 Now, it appears that the position is that 17 somewhere in there, there is - it's no longer the 18 staff's position and these events do now progress to 19 a Condition III event.
20 MS. BAILEY: So, let me make sure I 21 understand it correctly. So, where you think the 22 staff has changed its position is the qualification of 23 that valve, the adequacy of that - those valves to 24 prevent the progression from a Category II to a 25 category III event.
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MR. GULLOTT: Yes.
2 MS. BAILEY: And what you're basically 3
saying is the staff has always knew about the 4
qualification of those valves.
5 MR. GULLOTT: Yes.
6 MS. BAILEY: Okay.
7 MR. JURY: With that, again, it's Keith 8
Jury with Exelon. If you look at the RIS itself it 9
talks about that there's a concern that some licensees 10 may have changed their licensee basis to credit the 11 use of nonsafety-related components, consistent with 12 DNBR design basis event without prior staff review, 13 which I think was the original question.
14 And our point here is, is our crediting of 15 the valves to be able to pass water and then close 16 once reviewed and approved by the staff was not done 17 unilaterally.
18 That's another point where it wasn't done 19 without prior NRC review. It was discussed openly in 20 RAIs and approved on at least two separate occasions 21 prior to the MUR in 2013.
22 MS. BAILEY: Okay. And you talked a lot 23 about omissions and mistakes of fact versus just an 24 omission or a mistake and -- what's the difference?
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between an omission and a mistake of fact, or --
2 MS. BAILEY: What's the difference between 3
a mistake --
4 MS. REDDICK: -- just a plain old mistake?
5 MS. BAILEY: -- versus a mistake of fact 6
or omission versus --
7 MR. FEWELL: Yeah, why don't you go ahead 8
and use the examples that we raised earlier and maybe 9
elaborate on them, but I think it's just the 10 fundamental question, you know.
11 MS. REDDICK: Right.
12 MR. FEWELL: What's a mistake versus a 13 mistake of fact versus and/or an omission.
14 MS. REDDICK: Right. So, I think a 15 mistake of fact, a pretty obvious example of that 16 would be where sort of like Adam's hypothetical about 17 everyone thought that wall was 10 feet high. It was 18 not, it was nine feet.
19 Or even perhaps more simply, the staff 20 approval was based on a calculation that the licensee 21 did that said that two plus two equals five or 22 something. A mistake being that - a mistake of fact 23 being that the calculation itself was erroneous, 24 right?
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as opposed to a mistake being the staff deciding that 2
the way it had previously interpreted its regulations 3
was wrong for a variety of reasons, but not grounded 4
in fact.
5 And the difference between that and also 6
an omission, I think an omission is where the staff 7
should have considered information, it knew it should 8
have considered that information at the time it was 9
reviewing something, but it didn't do that.
10 And had it done that, I mean, the key as 11 well is that the omission or mistake of fact has to 12 undermine the prior approvals. So, it has to be such 13 that if they had considered that information, it would 14 have caused the staff at the time to determine the 15 licensee was not in compliance.
16 MS. BAILEY: Is that a well-understood 17 distinction in the legal world?
18 MR. GENDELMAN: So, to talking to a high 19 level, we've talked about this a lot in a couple 20 different ways that compliance exception is an 21 omission or a mistake of fact. And you point to the 22 SOC statement to that regard and to the associated 23 guidance NUREG-1409, which mentions the word "mistake" 24 twice both in verbatim quoting the SOC.
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understanding, because I think Mr. Fewell used the 2
word "only," that a compliance exception is only a 3
mistake of fact or omission, and I'm wondering why you 4
think that is especially given that it's not in the 5
rule text. So, we'll start there.
6 MS. REDDICK: Okay. Well, I think if you 7
look at the 1985 SOC, statements of consideration, the 8
language in there about the Commission explaining what 9
the compliance exception is meant to cover is pretty 10 clear and I'll just quote it directly.
11 It says: In cases involving the 12 compliance exception, backfit analysis is not required 13 and the standard does not apply. The compliance 14 exception is intended to address situations in which 15 the licensee has failed to meet known and established 16 standards of the Commission because of omission or a 17 mistake of fact. It should be noted that newer 18 modified interpretations of what constitutes 19 compliance would not fall within the exception and 20 would require a backfit analysis.
21 So, I think in terms of Brad's statement 22 to say that it only applies to an omission or mistake 23 of fact, we're just looking at the language in the 24 SOC.
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circumstances in which the compliance exception would 2
be appropriate. And, furthermore, it doesn't say that 3
the compliance exception is intended to address, for 4
example, situations in which there is - so it's - to 5
me it's an exclusive list that says these are the two 6
situations in which the compliance exception is 7
appropriate.
8 MR. FEWELL: And I would go back just a 9
little bit to -
10 MR. GENDELMAN: But my question is, why is 11 that inclusive? It says it is intended for situations 12 A and B. I don't think that speaks anything to 13 situations C and D if they would otherwise meet the 14 rule.
15 MR. FEWELL: Well, I think that you could 16 probably posit a variety of things that aren't said 17 there. And if you do so, I think you start to 18 undermine the whole purpose and eat away entirely at 19 the whole purpose of the backfit rule and the 20 requirement in order to ensure regulatory certainty 21 that the backfit analysis occurs.
22 I mean, it is designed to say that we 23 understand that there might be circumstances where the 24 NRC is going to need to change its mind. And it makes 25 sense for the NRC to change its mind and erode NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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regulatory certainty under some conditions.
2 But when they do that, the rule requires 3
that they perform this backfit analysis where there 4
needs to be a showing that there's a substantial 5
increase in safety by requiring this change and that 6
it is cost-justified.
7 MR. GENDELMAN: Or an exception applies.
8 MR. FEWELL: Or an exception applies. But 9
on the other hand, you don't - you can't have the 10 exception eat up the rule in its entirety.
11 MS. DOMEYER: This is Tammy Domeyer from 12 Exelon. Just to kind of pick up on what Darani and 13 Brad said, a backfit fundamentally always is based on 14 a mistake, right?
15 The new interpretation of staff means that 16 the prior interpretation was mistaken. So, to say 17 that a compliance exception doesn't require a mistake 18 of fact pretty much obliterates the need for a backfit 19 analysis ever, because a backfit always is based on a 20 mistake, a mistake in a conclusion reached by prior 21 staff.
22 MS. BAILEY: Yeah, but what you seem to be 23 saying is that it requires a mistake of fact versus 24 just a mistake.
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mistake. Prior staff was mistaken. We have a new 2
interpretation of what is required to comply with the 3
regulations. And in order to impose that backfit on 4
licensees, requires the backfit analysis, which is the 5
conclusion that there's a
substantial safety 6
enhancement and that it's cost-justified.
7 In order for the compliance exception to 8
exist, though, you can't just say there was a mistake, 9
because that's what a backfit is. You have to say 10 there was a mistake of fact that made the prior 11 staff's conclusion wrong not because we have a new 12 interpretation, but because the prior staff believed 13 a fact existed to support their conclusion when the 14 fact was erroneous.
15 MR. JURY: Let me try this in laymen's 16 terms. This is the way I understand it. And to 17 Brad's point, if there's a change in position, right, 18 it's a backfit. I think everybody agrees that if 19 there is a change in position, it's a backfit.
20 When you go back to compliance exceptions 21 and you look at it, in essence, by definition we're 22 saying that you were always supposed to do it this 23 way. And it's from the get-go from your licensing 24 basis and the regulation required, you were always 25 supposed to do it this way and you've missed it.
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And our point here is the fact that we've 2
been very open with how we do this in this scenario, 3
it's gone back and forth with the staff in several 4
RAIs and it was reviewed and approved, because this 5
very question was put on the table and the staff said 6
that provides a reasonable level of assurance, we were 7
given SEs, and now we're being told it says, oh, no, 8
you guys, in my words, were always required to comply 9
with this. That's why we can institute that exception 10 to say -- the compliance exception.
11 And our position is it's a new position 12 from what's been previous -- a known position that's 13 been previously reviewed and approved on multiple 14 occasions. In essence, it's a change in staff 15 position. And as such, the staff can change its mind, 16 obviously, but there's a process to go through and 17 that's the backfit.
18 To come back and say it's a compliance 19 backfit, you're saying we should have always been 20 complying in this manner. And we're saying, wait a 21 minute, it's been reviewed and approved on multiple 22 occasions and well understood.
23 MS. BAILEY: And that new position, in 24 your view, is where the staff previously accepted the 25 qualification of the valves, they're no longer NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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accepting the adequacy of the qualification of the 2
valves. That's, in your view -
3 MS. REDDICK: Yes.
4 MR. JURY: The ability of the valves to 5
close.
6 MS. BAILEY: Whereas I think in the 7
October 9 letter, the staff would say that their 8
change in position is whether or not the regulatory 9
requirements were met.
10 MR. FEWELL: Well, okay. If their 11 position is that they're changing their mind about 12 whether the regulatory requirements are met, then 13 that, in our view, would be a classic example of when 14 a backfit analysis should occur.
15 MS. BAILEY: Well, I'm just reading the 16 staff's conclusion with respect to noncompliance with 17 the GDCs is what's changed.
18 And then if I look at NUREG-1409, it 19 actually, you know, one of the examples where, you 20 know, the compliance backfit - the compliance - use of 21 the compliance exception may be appropriate is where 22 the staff has previously accepted the licensee's 23 program as adequate and, you know, they no longer do.
24 So, we have a situation where the staff 25 once accepted the adequacy of meeting the regulation, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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and now the staff has changed its position on that, 2
but that seems to be one example at least that's 3
provided in the NUREG and where the compliance 4
exception is the, you know, it's an appropriate use 5
for compliance exception.
6 MS. REDDICK: And I think if you read that 7
in context with what the rest of the NUREG says, it 8
also makes clear and it reiterates the standard about 9
an omission or mistake of fact.
10 So, the compliance exception, I mean, we 11 would certainly believe the compliance exception is 12 appropriate in certain circumstances where there is 13 that omission or mistake of fact.
14 MR. GENDELMAN: So, going back to that, 15 then, I'm literally looking at 109841, that a 16 modification is necessary to bring a facility into 17 compliance with a license or the rules or orders of 18 the Commission or into conformance with written 19 commitments by the licensee. To that you would add 20 "through omission or mistake of fact."
21 And so, I sort of want to go back to a 22 distinction between the SOC language and the rule 23 language to the extent that something can meet the 24 rule, but not the SOC.
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else I think I hear underneath your arguments, but I 2
sort of want to get at it explicitly is I don't know 3
if the word is "invocation," but you say what is the 4
mistake of fact or omission?
5 I mean, is it your view that a document 6
imposing a compliance backfit need to have a section 7
Mistake of Fact, colon, the following is the mistake 8
of fact, colon?
9 MR. FEWELL: Well, I think in terms of 10 process, I think that it needs to clearly articulate 11 that, yes.
12 I think part of what we've been saying is 13 that the document that has been presented to us 14 doesn't do that. Even if the NRC has in their mind 15 that there was a mistake of fact or an omission, the 16 document that was presented to us does not, in our 17 view, satisfy in terms of clarity the burden to say, 18 well, here is what it is.
19 So, you know, however they would want to 20 do it is fine, but it needs to articulate or make 21 clear what that mistake of fact or omission was.
22 MR. GENDELMAN: Do you think that the 23 document clearly states the rules or orders of the 24 Commission with which it seeks to bring Byron and 25 Braidwood into compliance?
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MS. REDDICK: From what I've understood, 2
I think we would also have a disagreement about that 3
as well in terms of understanding how we are not in 4
compliance with the GDCs.
5 But I think that, you know, your point, 6
Adam, about having, you know, adding words to the rule 7
itself, I think it's entirely appropriate to look at 8
the regulatory history when interpreting how rules 9
should be applied.
10 I think the Commission has made that very 11 clear. It's in your own guidance in NUREG-1409. And 12 to sort of ignore that, I think, is --
13 MR. GENDELMAN: Well, I think -- I don't 14 think that's what I would suggest. I think what I'm 15 saying is the SOC language as quoted in the guidance 16 says, is intended to, and it gives two examples. It 17 doesn't speak to their exclusivity, or their 18 nonexclusivity.
19 And then I think as a separate matter is 20 this idea that it seems like at least more explicitly 21 than what is done in the document you want some 22 explication of what the mistake or omission was.
23 And to that end, I want to follow up on 24 something we haven't talked about yet, which is 25 something in your slides about the staff statement in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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conclusion about the water qualification of the valves 2
being unsubstantiated, because I think some of this is 3
turning on that.
4 And I was wondering if you could talk some 5
more about that in terms of what, for lack of a better 6
term, you think was unsubstantiated, because many of 7
the reviews you talked about in terms of the prior 8
staff reviews of, say, this system or systems 9
associated with it are also called out in the backfit 10 itself.
11 And so, in that context I was wondering if 12 you could fill that out a little more.
13 MR. GULLOTT: Can you ask the question 14 again? I'm just trying to follow.
15 MR. GENDELMAN: Okay. So, one of the 16 points that I think is made in a few places in your 17 slides are that the statement in the backfit that 18 water qualification of the valves is unsubstantiated 19
-- that you think that that staff statement is 20 unsubstantiated.
21 And as an example, as to the review that 22 was performed that you think would negate this claim 23 includes the previous staff reviews of it and 24 associated systems, which the staff itself seems aware 25 of in its backfit discussion.
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And so, I'm wondering if given that, that 2
at least there seems to be some cognizance of the very 3
reviews that you point to in the backfit if you could 4
fill out what you mean by "unsubstantiated," because 5
clearly the backfit talks to the reviews and what the 6
staff thought and what it did at various stages with 7
regard to the water qualification and these parts.
8 So, you may disagree ultimately, I think, 9
with what the staff said, but I was wondering if you 10 could fill out a little more about what dimension of 11 that you thought was unsubstantiated, because it's not 12 a blank page.
13 MS. REDDICK: I think -
14 MR. GENDELMAN: Because whether you agree 15 or disagree with it, it's not like the staff just said 16 it was unsubstantiated, end of page.
17 MS. REDDICK: Okay. So, I just want to 18 make sure I understand your question and I'll - the 19 word "unsubstantiated" is not Exelon's word. It is 20 the staff's word, right?
21 So, the staff uses it on multiple places, 22 I think, like, for example, Page 12 of the backfit SE 23 the staff says that the prior approvals, and I'm 24 paraphrasing, were based on the use of water-qualified 25 PSVs which were later found to be unsubstantiated.
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And I think what we are saying is that it 2
is not clear what is unsubstantiated about those prior 3
approvals, about the prior approval that the PSVs were 4
water-qualified.
5 Somehow that has now become 6
unsubstantiated. It is not clear to us why that is 7
unsubstantiated now. And furthermore, it is not clear 8
to us how that unsubstantiated conclusion is an 9
omission or mistake of fact that would undermine what 10 the staff previously approved.
11 MR. GULLOTT: It reads like a change of 12 position. Now, I've reviewed it and someone's 13 reviewed it now and says, oh, I disagree, which is a 14 backfit traditional backfit change in 15 interpretation, not pointing out a specific aspect of 16 all our previous testing and NRC approvals and NRC 17 reviews that were very comprehensive.
18 Those tests that we performed, the NRC in 19 2001 or prior to that, had those in front of them.
20 They had specific RAIs about the conditions of the 21 test. We gave them -
22 MR. GENDELMAN: Are these the EPRI tests?
23 MR. GULLOTT: The EPRI tests.
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which the NRC got into the details of and agreed that 2
- with our conclusion that this is - that these valves 3
will perform their intended function under the 4
conditions that they were tested to. And, therefore, 5
there's reasonable assurance the valves will reclose 6
and the condition will not escalate to a Condition III 7
event.
8 So, all that information was in front of 9
the NRC prior to 2005, prior to 2011 and our submittal 10 and they made a conclusion. When you read 11 "unsubstantiated," it - there's no, okay, what was 12 wrong? What aspect of those prior - what of those 13 prior tests that we submitted was wrong?
14 MS. REDDICK: Well, not just wrong, but 15 what was an omission or mistake of fact.
16 MR. GULLOTT: Yeah, what was technically 17 wrong.
18 MR. GENDELMAN: The transcriptionist is 19 going to have a hot key for that by the time this -
20 (Laughter.)
21 MR. FEWELL: We were thinking about doing 22 an over-under on how many times "omission or mistake 23 of fact" would be mentioned.
24 MR. GENDELMAN: You're just juicing your 25 own numbers now.
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(Laughter.)
2 MR. GENDELMAN: So, back to the nine-foot 3
fence. So, and I want to talk about the significance 4
of the previous NRC reviews and what -- what they did 5
or didn't entail means, in your view.
6 And in particular if -- maybe analogous to 7
this, maybe not -- if the application was for the 8
nine-foot fence notwithstanding an NRC regulation that 9
says the fence shall be 10 feet high and we asked in 10 an RAI, so just to make sure, it's a nine-foot fence, 11 right? And the response is, yep. And then you get an 12 approval that includes, among other things, a 13 provision for a nine-foot fence.
14 It's your view that eyes open, I think is 15 what you said, that that's not an opportunity for 16 later compliance backfit.
17 Now, I think if there's an added 18 protection reason for a 10-foot fence, that's a 19 different conversation. And I think you can see that 20 and I don't want to go there.
21 But if it's just in the compliance context 22 that you would think that that's not a mistake of 23 fact, you knew it was nine feet, it was not an 24 omission, you knew it was nine feet, and that, 25 therefore, a compliance exception wouldn't apply; is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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that right?
2 MR. FEWELL: You articulated it very well.
3 MR. GENDELMAN: That's helpful. Thank 4
you. I think I'm out of words.
5 MR. GODY: I really hate that fence.
6 (Laughter.)
7 MS. BAILEY: I don't have any more 8
questions.
9 MR. GENDELMAN: I can talk about nickel 10 concentrations in vessels, if you want.
11 MR. GARMOE: So, does the panel have any 12 other questions?
13 MS. BAILEY: I have no other questions.
14 MR. GODY: I'm thinking. Maybe take five.
15 Let's take a minute.
16 MR. GARMOE: All right. We'll take a 17 couple minutes and determine whether we have any final 18 questions before moving forward.
19 (Whereupon, the proceedings went off the 20 record at 2:50 p.m. for a brief recess and went back 21 on the record at 2:57 p.m.)
22 MS. BAILEY: Okay. This is Marissa Bailey 23 again. I'm saying that for the sake of our 24 transcriber.
25 I don't have any more questions. Adam --
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MR. GENDELMAN: I don't.
2 MS. BAILEY: -- Tony, do you have any more 3
questions?
4 MR. GODY:
I don't have any more 5
questions.
6 MS. BAILEY: Okay. So, before we go to 7
addressing any public questions, any other final 8
thoughts, statements, any information you wanted to 9
give us?
10 MR. FEWELL: Yeah, I just want to thank 11 you all again for the attention -- you've obviously 12 spent a lot of time thinking about this, looking at 13 it. So have we, obviously.
14 And at the risk of continuing on with the 15 fence discussion, my colleagues have instructed me to 16 add one more piece that they felt was important.
17 And that was that into the scenario, the 18 nine-foot fence kind of keeping it on track with what 19 we're dealing with here, has been tested and has been 20 deemed to perform the function that was required of 21 the 10-foot fence.
22 And I just think that that's important to 23 point that out because that shows that it meets its 24 intended safety function and that that's something 25 that all of us, all of us are interested ensuring that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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all of these plants, components and equipment function 2
safely and meet their intended safety purpose.
3 So, again, thank you all for your 4
attention.
5 MS. BAILEY: Okay. Thank you.
6 At this point, let's move to comments from 7
the public. And we'd like to open it up for members 8
of the public to address -- or direct questions to the 9
NRC panel.
10 MR. GARMOE: So, the way we're going to do 11 this, just to lay out some ground rules as the phones 12 are fairly crowded, just to clarify, these are 13 questions for the NRC panel from members of the 14 public. So, there's a number of other people in the 15 room, but please direct your questions towards the NRC 16 panel.
17 And please keep the content or context of 18 your questions focused on the backfit appeal that 19 Exelon has made, the backfit that the NRC issued and 20 any ancillary discussions that we've had focused on 21 that topic.
22 Again, because the phones are fairly 23 crowded, I'm aware of several organizations or 24 individuals who have called in. So, what I'd like to 25 do is call them out by name quickly one by one to see NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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if you have any questions.
2 If you don't, you can either say, no 3
questions, or say nothing. If you do, go ahead and 4
ask them. And then at that point, I'll open it up to 5
anybody else that might be on the phone that I wasn't 6
aware of.
7 So, first, any individuals from Certrec?
8 Do you have any questions?
9 CERTREC: None.
10 MR. GARMOE: Thank you.
11 Anyone from Duke Energy?
12 (No response.)
13 MR. GARMOE: That was no questions. Thank 14 you.
15 Xcel Energy?
16 XCEL ENERGY: No questions.
17 MR. GARMOE: Thank you.
18 Southern Nuclear?
19 SOUTHERN NUCLEAR: No questions.
20 MR. GARMOE: Thank you.
21 Palisades?
22 (No response.)
23 MR.
GARMOE:
Hearing nothing from 24 Palisades.
25 Mr. Miranda?
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MR. MIRANDA: Yes, I have some questions 2
and comments.
3 MR. GARMOE: Go ahead.
4 MR. MIRANDA: First, I'll identify myself 5
as a member of the public and also a retired NRC 6
employee for full disclosure. And the author of RIS 7
2005-29.
8 First of all, just a comment regarding the 9
nine-foot fence meeting all those requirements. While 10 I doubt that the operating history has a number of 11 stuck parts in the record and a number of inadvertent 12 ECCS actuations, and some of them have occurred as 13 part of unnecessary reactor trips that should have 14 came without complications.
15 Can you still hear me?
I've got some 16 static.
17 MR. GARMOE: Yes, we got that, too.
18 MR. GODY: But we heard you.
19 MR. MIRANDA: Okay. So, what happens if 20 that nine-foot fence is not a nine-foot fence?
21 Suppose it's a 20-meter tsunami wall. What happens 22 then?
23 Let me -- let me move on to your 24 presentation.
And I'm talking about here the 25 unsubstantiated qualification that the NRC mentioned.
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And that goes to your reference 5. And 2
that's Leonard Olshan's letter of August 18, 1988.
3 And that letter transmitted a test report from EG&G 4
concerning the performance testing of leak of safety 5
valves from fire stations near the 22. I have this on 6
the public docket and it's available to me.
7 In section 12.2.3, entitled Extended High 8
Pressure Injection Event, it's a short paragraph.
9 What it says is, limiting extended high pressure 10 injection event is a spurious actuation of the safety 11 injection system at power. For a formal plant, both 12 the safety valves and PORVs will be challenged. Both 13 steam and water discharge are expected. In this 14 event, however, safety valves or PORVs open and steam 15 and liquid discharge would not be observed until the 16 pressurizer becomes water solid. According to 17 reference 7, this would not occur until at least 20 18 minutes into the event, which allows ample time for 19 operator action. Thus, the potential for liquid 20 discharge, an extended HPI event, can be disregarded.
21 So, what Exelon is claiming that those 22 PORVs are qualified for water, according to this 23 report that test was not done.
24 I would also like to talk about the FSAR, 25 Byron and Braidwood FSAR. Okay. You mentioned this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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earlier with respect to the event proceeding according 2
to the analyses pertaining to inadvertent opening of 3
the PORVs.
4 And what it says, and I understand it was 5
later revised in 2014, but in 2002 it -- and the 6
reason I mention this is because of the language that 7
was used today about mistake of fact versus omission.
8 And these are not the terms Ive seen in the backfit 9
rule 50.109. I assume they must be from the statement 10 of consideration, because the backfit rule has no such 11 qualifications.
12 It's the exception for compliance is there 13 for the licensee's failure to comply with written 14 licensing commitments. And the written licensing 15 commitment in this case was the assertion made in the 16 FSAR that the ANS standard 18.2 1973 requirement that 17 a Condition II event must not proceed to a Condition 18 III event without the occurrence of another 19 independent fault that has to be prevented.
20 So, what the FSAR says, and this is also 21 short, besides the condition about the safety valves 22 failing to reseat and proceed according to water 23 event, it goes on to say, the ANS standard of a 24 Condition II event and a minor reactor coolant system 25 leak, which would not prevent ordering reactor NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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shutdown and cool down and starting back up, as 2
provided by one of the following.
3 Coolant reactor systems are designed to 4
maintain reactor coolant inventories under conditions 5
respective conditions of start-up and stand-by power 6
operation or cool down using onsite power. Since the 7
cause of the ECCS flow will be less than or equal to 8
that of the ECCS.
9 MR. GARMOE: If you could summarize your 10 point, please, that would be helpful so that we could 11 ensure we have time for any other public comments as 12 well.
13 MR. MIRANDA: Okay. I refer to this as a 14 mistake of fact. The assertion that the ECCS flow 15 into the reactor coolant system will be matched by 16 flow coming out of the stuck PORV is not true, not for 17 at least an hour after the event occurs. Flow coming 18 out of a PORV at 2350 or 2400 psi critical flow cannot 19 be matched by pump ECCS flow.
20 Okay. And this - I don't understand how 21 a degreed engineer can make this statement. And I 22 happen to know that this particular paragraph comes 23 straight out of IN-93-13, which was provided by 24 Westinghouse to its customers as an advisory to 25 dealing with the inadvertent ECCS event.
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I understand that's been revised and at 2
least according to as it was read out earlier in the 3
meeting, is also a mistake of fact because it cannot 4
be compared, it cannot be bounded to the inadvertent 5
opening of the PORV.
6 The inadvertent opening of a PORV will 7
release steam. And in this case, a stuck open PORV is 8
relieving water.
9 And, by the way, there are two such 10 analyses in the FSAR. One is a Condition II event, 11 and the other is a Condition III event.
12 MR. GARMOE: All right. Thanks. Is there 13
- if you could summarize in about 20 or 30 more 14 seconds, that would be great. And then we can come 15 back to you if there's no other public comments.
16 MR. GODY: I'm understanding his position.
17 MR. GARMOE: Okay. It sounds like the 18 panel heard your comments and understands.
19 MR. GODY: Appreciate the input.
20 MR. MIRANDA: One more thing and I'll be 21 done. Concerning the RIS 2005-29, I think it was 22 clear in there that what it said was if the -- this 23 was also replies from Westinghouse to close the block 24 valve.
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he's not responding to an inadvertent SI event. He's 2
responding to a small break LOCA. And that is 3
evidenced that the ANS requirement has already been 4
violated.
5 And one last thing. I would advise that 6
you check into EC&G's license amendment request of 7
1997 (sneezing) wherein they qualified reports and 8
safety-related equipment and they use them in their 9
FSAR in the correct manner as safety-related 10 equipment.
11 MR. GARMOE: Okay. Thank you. Let's see.
12 I believe there's somebody on the phone from Platts.
13 Are there any questions?
14 (No response.)
15 MR. GARMOE: I'm hearing that as a no.
16 And, Mr. Lewis, are you there and do you 17 have any questions?
18 (No response.)
19 MR. GARMOE: Hearing nothing from Mr.
20 Lewis is there any members of the public that are on 21 the phone that I haven't called that have any 22 questions for the NRC panel?
23 (No response.)
24 MR. GARMOE: Okay. And anybody else who's 25 a member of the public in the room that might have NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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questions for the NRC panel?
2 MR. BONANNO: This is Jerry Bonanno from 3
NEI. I don't have a question for the panel. Just 4
wanted to make a few comments.
5 We obviously submitted a letter dated 6
January 20th, which I assume you all have seen, 7
supporting Exelon's backfit.
8 I think, you know, for us the essential 9
question is the question that you guys have been 10 wrestling with today, which is, you know, trying to 11 discern situations where there is a reinterpretation 12 from situations where the staff is really trying to 13 take action to bring a licensee back into compliance 14 with known and established standards.
15 That's a - that can be a difficult 16 question to address. I think a lot of the issues that 17 you've been talking about today demonstrate that.
18 My only comment is that from our 19 perspective, it would be great if we could resolve 20 some of these issues in a generic way, you know, once 21
- I know we won't be able to resolve them all.
22 Some of these issues are going to be fact-23 specific. They're going to have to be ironed out with 24 specific panels, but these words have been around for 25 a long time in the SOC.
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I think people have interpreted them in 2
different ways and it would be good to - I think there 3
is some ground to gain generically in this space. So, 4
that's my only comment.
5 And, again, I think this has been useful 6
and I hope that future panels continue to have public 7
meetings like this when they get backfit appeals.
8 MR. GARMOE: Any other public questions 9
from in the room?
10 (No response.)
11 MR. GARMOE: Okay. And, Mr. Miranda, I 12 did promise I'd come back to you if we have time.
13 Do you have any other brief remarks, or 14 did that summarize your thoughts?
15 MR. MIRANDA: Thank you. Do you want some 16 more comments?
17 MR. GARMOE: I understand. I believe that 18 sounds like we've wrapped up public comments. One 19 last call on the phones for any other public 20 questions.
21 (No response.)
22 MR. GARMOE: Okay.
23 MR. BAILEY: Okay. Well, first of all I'd 24 like to thank you for your time for the presentation 25 of your backfit appeal.
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Just want to remind everyone that the 2
purpose of this meeting is for us to hear your backfit 3
appeal for us to ask questions and clarification 4
questions.
5 There were no regulatory decisions made at 6
this meeting. So, please don't take our questions as 7
any indication of where we're going to come out one 8
way or another. It was purely for us to get 9
clarification and try to understand your appeal.
10 Adam or Tony, any --
11 MR. GENDELMAN: Thanks.
12 MS. BAILEY: -- closing statements at this 13 point?
14 MR. GODY: No. Thank you very much.
15 MS. BAILEY: Okay. So, at this point, 16 I'll hand it back to you to close the meeting.
17 MR. GARMOE: All right. We are adjourned.
18 I just remind everybody as you're leaving the room, 19 make sure we have NRC staff. We can do a five-to-one 20 visitor ratio for heading back down to the lobby. And 21 we're hanging up the phones.
22 (Whereupon, at 3:14 p.m. the meeting was 23 adjourned.)
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