ML17198A464
| ML17198A464 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 07/17/2017 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 50-443-LA2, ASLBP 17-953-02-LA-BD01, NRC-3123, RAS 53933 | |
| Download: ML17198A464 (133) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Nextera Energy Seabrook LLC, Seabrook Station Unit 1 Docket Number: 50-443-LA2 ASLBP Number: 17-953-02-LA-BD01 Location: Rockville, Maryland Date: Thursday, June 29, 2017 Work Order No.: NRC-3123 Pages 1-132 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433
1 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3 + + + + +
4 ATOMIC SAFETY AND LICENSING BOARD PANEL 5 HEARING 6 -------------------------x 7 In the Matter of: : Docket No.
8 NEXTERA ENERGY : 50-443-LA2 9 SEABROOK, LLC : ASLBP No.
10 (Seabrook Station : 17-953-02-LA-BD01 11 Unit One) :
12 -------------------------x 13 Thursday, June 29, 2017 14 15 Nuclear Regulatory Commission 16 Hearing Room T-3 B45 17 11545 Rockville Pike 18 Rockville, Maryland 19 20 BEFORE:
21 RONALD M. SPRITZER, Chair 22 NICHOLAS G. TRIKOUROS, Administrative Judge 23 DR. SEKAZI MTINGWA, Administrative Judge 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2 1 APPEARANCES:
2 On Behalf of NextEra Energy Seabrook, LLC:
3 RYAN K. LIGHTY, ESQ.
4 PAUL M. BESSETTE, ESQ.
5 of: Morgan, Lewis & Bockius LLP 6 1111 Pennsylvania Avenue, NW 7 Washington, DC 20004 8 202-739-5274 (Lighty) 9 202-739-5796 (Bessette) 10 202-739-3001 (FAX) 11 ryan.lighty@morganlewis.com 12 13 and 14 STEVEN C. HAMRICK, ESQ.
15 NextEra Energy Seabrook, LLC 16 801 Pennsylvania Avenue, NW 17 Suite 220 18 Washington, D.C. 20004 19 202-349-3496 20 steven.hamrick@fpl.com 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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3 1 On Behalf of the Nuclear Regulatory Commission:
2 BRIAN HARRIS, ESQ.
3 ANITA GHOSH, ESQ.
4 JEREMY WACHUTKA, ESQ.
5 of: Office of the General Counsel 6 Mail Stop - O-14 A44 7 U.S. Nuclear Regulatory Commission 8 Washington, D.C. 20555-0001 9 301-415-1392 10 brian.harris@nrc.gov 11 anita.ghosh@nrc.gov 12 jeremy.wachutka@nrc.gov 13 14 On Behalf of C-10 Research & Education 15 Foundation:
16 NATALIE HILDT TREAT 17 CHRISTOPHER NORD 18 SARH DOENMEZ 19 PATRICIA SKIBBEE 20 C-10 Research & Education Foundation 21 44 Merrimac Street 22 Newburyport, Massachusetts 01950 23 978-465-6646 24 natalie@c-10.org 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4 1 P-R-O-C-E-E-D-I-N-G-S 2 (10:03 a.m.)
3 JUDGE SPRITZER: Good morning everyone.
4 We can see you. I trust you can see us. If you can't 5 see us, please let me know. Very good. We are here 6 this morning in the matter of NextEra Energy Seabrook 7 LLC, concerning Seabrook Station Unit 1.
8 This is NRC docket number 50-443-LA2, also 9 ASLBP number 17-953-02-LA-BD01. And we are here to 10 hear oral argument on the questions of standing and 11 contention admissibility in this matter.
12 My name is Ronald Spritzer. I am an 13 administrative judge here at the NRC. I am an 14 attorney. I've been here for approximately nine years 15 and before that I was with the Justice Department in 16 the Environment Division.
17 I'll ask my colleagues to my right and 18 left to introduce themselves briefly.
19 JUDGE MTINGWA: Good morning. I'm Judge 20 Sekazi Mtingwa. I am a nuclear physicist and retired 21 from MIT about five years ago. Currently, I am a 22 principal partner in a consulting firm called TriSEED 23 Consultants in Hillsborough, North Carolina, and I've 24 been an administrative judge here for the last year.
25 JUDGE TRIKOUROS: Good morning. My name NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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5 1 is Nick Trikouros. I am also an administrative judge 2 for about the last 11 years. I am a nuclear engineer.
3 Prior to becoming an administrative judge, I was a 4 nuclear energy consultant for a number of years, 5 running my own consulting company.
6 JUDGE SPRITZER: Very good. Can we ask 7 the party's representatives to introduce themselves.
8 Let's start with the petitioners.
9 MS. TREAT: Good morning. I'm Natalie 10 Treat. I'm the executive director of the C-10 11 Research & Education Foundation. We are from 12 Newburyport, Massachusetts near Seabrook Station.
13 Would you like me to introduce -- so I'm 14 going to lead on the standing part of it, and I've got 15 a few of my board members, who will make comments on 16 contentions. Would you like them to introduce 17 themselves now?
18 JUDGE SPRITZER: Yes, that would be 19 helpful.
20 MS. TREAT: Here you are, Chris.
21 MR. NORD: Good morning.
22 JUDGE SPRITZER: Good morning.
23 MR. NORD: I'm Mr. Nord. I live in 24 Newbury, Massachusetts and am a longtime board member 25 and founding member of C-10.
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6 1 MS. DOENMEZ: Good morning. I'm Sarah 2 Doenmez. I am the academic dean of the Dublin School 3 in Dublin, New Hampshire, and I am a member of the 4 board of C-10.
5 MS. SKIBBEE: Good morning. I'm Pat 6 Skibbee, a longtime, probably 30 years' member of C-10 7 and president of the board of directors. Nice to meet 8 you.
9 JUDGE SPRITZER: Thank you. All right.
10 We've covered C-10. Let's move on for the NRC staff.
11 Who are the representatives for the staff who will be 12 speaking?
13 MR. HARRIS: Good morning, Your Honor.
14 This is Brian Harris. I'm the lead attorney for the 15 staff and with me I have co-counsel that will be 16 off-screen. I imagine I'll be doing most of the 17 talking for this argument, but with me is Ms. Anita 18 Ghosh and Mr. Jeremy Wachutka.
19 JUDGE SPRITZER: Very well. And for 20 Seabrook, NextEra Energy?
21 MR. LIGHTY: Thank you, Your Honor. This 22 is Ryan Lighty with Morgan, Lewis, and I will be the 23 primary spokesperson today. I'm also joined by my 24 fellow representatives Paul Bessette, also with 25 Morgan, Lewis and Steve Hamrick with NextEra.
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7 1 JUDGE SPRITZER: Very good. That about 2 covers it, I believe. We think we have people 3 listening on the phone. Unfortunately, we don't know 4 precisely the number, but a number of people did call 5 in and indicate they were planning on listening in, 6 but I understand their phones are muted so we 7 shouldn't be interrupted.
8 In the event anyone is presently on the 9 line, let me at least give a brief explanation of what 10 this case involves. The petition filed by the C-10 11 Research & Education Foundation is challenging a 12 license amendment request, which you may hear referred 13 to as the LAR, which seeks to adopt a particular 14 methodology for analyzing a problem called the 15 alkali-silica reaction and its effect on concrete at 16 the safety-related structures at the Seabrook plant.
17 Petitioners are challenging the adequacy 18 of that methodology, and we will be hearing argument 19 first about their standing, which basically means 20 whether they have alleged a legally sufficient injury 21 to be entitled to bring the case.
22 And then second, we will be hearing 23 argument about their contentions, particularly whether 24 those contentions satisfy the criteria adopted by the 25 Nuclear Regulatory Commission for proceeding to the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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8 1 next stage of the case, which would involve 2 potentially an evidentiary hearing or at least a 3 decision on the merits of their claim.
4 As far as time limits for argument, we've 5 indicated those in our order. We will adhere to those 6 to the extent possible, but the primary purpose of 7 this argument is for you to answer our questions, so 8 we're not going to interrupt anybody in the middle of 9 an answer. We will allow you to speak as long as 10 necessary to get the answers to our questions.
11 If you're getting close to your time 12 limit, I will attempt to give you a warning. I don't 13 think we can use the cards that we normally use at an 14 in-person oral argument, but I'll try and give you a 15 warning if we're getting close to your time limit.
16 But, as I said, we will allow you the time you need to 17 answer our questions.
18 If, at some point, you need to confer with 19 someone else who's with you, and you don't want us to 20 hear what you're saying, which I suspect would be the 21 case, you'll need to mute your phone. I think they 22 can also turn off the camera. Correct? So you can 23 mute both those things.
24 Just let us know you need to confer, and 25 we'll take a break, a short break, not leaving the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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9 1 room, but we'll give you adequate time to do that, and 2 we won't hold any time you take for that against you.
3 That is, it won't count against your time limit.
4 We will take a full break, that is leaving 5 the courtroom, probably about halfway through. I 6 would guess that would be around 11:30, although it 7 depends on what the most convenient time is. I think 8 that covers the administrative matters. Does anyone 9 have any questions before we get started?
10 Hearing none, we will proceed. We will 11 hear first from the petitioners, and I take it the 12 first argument will be on standing presented by Ms.
13 Treat.
14 MS. TREAT: That's correct. Okay. Well, 15 thank you everyone. Good morning, Chairman Spritzer 16 and Judge Trikouros and Mtingwa. Thank you for the 17 opportunity to come before you today. As mentioned, 18 I'm Natalie Treat, executive director of the C-10 19 Research & Education Foundation, Incorporated. And as 20 you heard, I'm here with members of my board of 21 directors, who will speak on the contentions that we 22 raised in our April 10th petition.
23 As you see, we are seeking to intervene 24 pro se. I began this position here at C-10 in March, 25 and as you've heard, my board of directors has been at NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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10 1 it for a lot longer, tracking safety issues at 2 Seabrook for decades. So we thank the board for your 3 forbearance as we share the job of presenting today.
4 The C-10 Foundation has maintained our 5 standing as a legitimate voice of concern for public 6 health and safety within our reactor community, where 7 we have monitored both the radioactive emissions and 8 the general operation and condition of the plant since 9 well before NextEra assumed Seabrook's ownership.
10 Born out of a group of citizens who live 11 within the ten-mile radius of Seabrook Station and 12 were concerned with the viability of emergency 13 evacuation plans, the C-10 Research & Education 14 Foundation, Incorporated was established in 1991.
15 We have operated a real-time airborne 16 radiation monitoring network under contract with the 17 Commonwealth of Massachusetts since the plant went 18 online, and we have expressed a concern about ASR 19 since 2010.
20 It is worth noting that the C-10 21 Foundation is the only organization seeking to 22 intervene in this important docket. Several state and 23 local leaders are on record with NRC expressing their 24 concern with Seabrook's concrete and the possibility 25 of a failure would cause grave harm to the public, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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11 1 which includes their constituents and our members.
2 So here are the reasons why we believe we 3 should be granted standing before the board. NRC has 4 acknowledged that the concrete at Seabrook Station is 5 failing due to alkali-silica reaction or ASR and that 6 there is no known remedy. That is why NextEra was 7 compelled to file a license amendment request and 8 that's why we are here today.
9 NRC has admitted that you cannot know the 10 true rate or extent of the concrete degradation, 11 therefore cannot know when a catastrophic failure may 12 happen. Reasonable assurance of adequate protection 13 for the public is NRC's ultimate responsibility.
14 The concrete walls and containment dome at 15 Seabrook that are experiencing ASR are what separates 16 C-10, its members and the public-at-large from 17 exposure to some of the most deadly toxins on earth.
18 C-10 Foundation's office and my home are both within 19 the ten-mile radius of Seabrook Station thus in harm's 20 path should there be a significant release of 21 radiation.
22 The majority of our members and board live 23 within the ten-mile emergency planning zone and no one 24 believes that a catastrophic event, such as Three Mile 25 Island, Chernobyl or Fukushima can happen until it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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12 1 does. But, as we know, accidents can and do happen.
2 While the NRC claims our alleged injury is 3 merely hypothetical, by acknowledging in its response 4 to our April 10th petition that we have made a viable 5 contention, NRC has also effectively admitted that 6 C-10 and our members are exposed to the risk of harm 7 due to radiological contamination resulting from the 8 concrete degradation.
9 If this license amendment request is 10 granted, C-10, our members and the public-at-large 11 will remain at heightened risk of physical and 12 financial harm should the degraded concrete ultimately 13 fail.
14 The facts alleged in our findings to date 15 have satisfied both traditional and proximity-based 16 standing requirements. The organization of C-10 would 17 be harmed if failing concrete at Seabrook's 18 containment structures contributed to a radiological 19 release that caused us to evacuate our office and 20 cease operations.
21 Given the choice of staying or fleeing the 22 area with my young child, I would of course evacuate 23 and be unable to perform my job as contracted with the 24 Commonwealth of Massachusetts Department of Public 25 Health.
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13 1 Likewise, our board of directors and 2 members would be forced to evacuate their homes with 3 a potential for serious physical and financial losses.
4 As NRC staff knows, the fact that our petition did not 5 also include a separate affidavit laying out these 6 facts is not a fatal deficiency.
7 To quote from the U.S. NRC Staff Practice 8 and Procedure Digest number 15, "If an official of an 9 organization has the requisite personal interest to 10 support an intervention petition, her signature on the 11 organization's petition for intervention is enough to 12 give the organization standing to intervene."
13 JUDGE SPRITZER: What was the citation, 14 you said the NRC Practice and Procedure Digest and --
15 MS. TREAT: The U.S. NRC Staff Practice 16 and Procedure Digest Number 15, Page 165. It was 17 pre-hearing matter 78, dated January 2010. And we're 18 happy to follow up on this and do written comments of 19 our oral statements if that's helpful, Judge.
20 JUDGE SPRITZER: Only if we ask you to, I 21 think.
22 MS. TREAT: Great. So I'm the executive 23 director, who signed the petition under direction from 24 my board. To restate, Seabrook's concrete is failing.
25 The rate, extent and point of failure remain unknown.
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14 1 NextEra's LAR seeks to prove that the concrete will 2 continue to perform as designed.
3 Our contention is to ask NRC regulators to 4 consider if that is true. We have demonstrated 5 standing in this docket and that the organization of 6 C-10, I and our members, along with the general public 7 will be harmed if the concrete fails and triggers a 8 radioactive release.
9 NRC staff has admitted that the C-10 10 Foundation made admissible contentions. So we are 11 asking you, the agency whose mission it is to protect 12 people and the environment, to carry out this duty.
13 We do not believe we should be the ones defending 14 ourselves for the right to speak. The burden should 15 be on NextEra and NRC to ensure ongoing public health 16 and safety. Thank you.
17 JUDGE SPRITZER: Very well. We'll next 18 hear, as I understand it, from Mr. Nord on the 19 contentions?
20 MS. TREAT: Yes.
21 JUDGE MTINGWA: Before we proceed, could 22 I as a quick question about what she just --
23 JUDGE SPRITZER: Certainly.
24 JUDGE MTINGWA: Ms. Treat, could I ask you 25 a question? So you are claiming both organizational NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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15 1 and representational standing, is that correct? You 2 didn't say it explicitly, but it's sort of implicit.
3 So are you claiming both?
4 MS. TREAT: Yes.
5 JUDGE MTINGWA: Okay, thank you.
6 MS. TREAT: Thank you.
7 MR. NORD: So thank you, everyone, once 8 again for the opportunity on behalf of C-10 to address 9 this court and the other participants here on this 10 hugely important matter. If you all are ready, I will 11 go ahead with my first comment on the contentions.
12 I'm not alone in addressing contentions, 13 I'm one of three, but I'll be first up. So --
14 MR. HARRIS: Your Honor, if could 15 interrupt. This is Brian Harris of the staff.
16 There's an echo going on on the audio.
17 MR. NORD: It's just the way I talk.
18 MR. HARRIS: That was better.
19 MR. NORD: And if I look like I'm chewing 20 on something, it's because I've got a cough drop in my 21 mouth, so my apologies for that. So are you all ready 22 for me to present?
23 JUDGE SPRITZER: Absolutely, go ahead.
24 MR. NORD: Very good. While C-10 is 25 generally amenable to NRC staff's reconfiguration of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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16 1 the contentions within our petition for leave to 2 intervene, we do wish to raise some important points 3 of disagreement with staff concerning their objections 4 to aspects of specific contentions.
5 First, is Contention B. Contention B 6 argues, this is a quote from NRC staff from their 7 answer to us on 5-5-2017, "Contention B argues that 8 expansion occurring within a reinforced concrete 9 structure due to ASR is not equivalent to a 10 pre-stressing effect.
11 This argument is not material to the 12 findings that NRC must make, because the LAR depends 13 on limits derived from the MPR/vessel large-scale test 14 programs, such that as long as the test program was 15 bounding of the Seabrook concrete then the limits 16 would also be bounding" et cetera, I'm not going to 17 read the whole thing.
18 C-10 must take issue with staff's rebuttal 19 as tidy as it presents the potentially fatal flaw 20 embedded here has to do with the health and safety of 21 nearby residents. The Ferguson data may appear to 22 show a pre-stressing effect for ASR-attacked 23 reinforced concrete, but according to Dr. Brown, who 24 is our expert witness on this matter, the change in 25 strength of such concrete is temporal and dynamic only NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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17 1 in one direction, toward failure.
2 Since the timing of the failure of 3 ASR-attacked reinforced concrete cannot be anticipated 4 with accuracy, and because such concrete may be within 5 the supporting structure of the spent fuel pool, it is 6 incumbent of the NRC not to treat such ASR-attacked 7 concrete as "equivalent" to pre-stressing.
8 To do so is to turn a blind eye to the 9 potentially dangerous degradation that is really at 10 work at the atomic power facility that you are 11 responsible for in a community to whom you are 12 accountable.
13 For these reasons, the importance of the 14 distinction between the changing impact of ASR and the 15 appearance of equivalence to pre-stressing is 16 certainly germane to NextEra's license amendment 17 request. And the citation that we have for Paul Brown 18 is from our C-10 petition, Page 5, Paragraph 5 through 19 7.
20 My next comment is on Contention C. Oh, 21 I'm sorry. This is where I step out and one of our 22 other board members is going to address the question 23 of petrographic analysis. So, this is will be Sarah 24 Doenmez.
25 MS. DOENMEZ: Good morning.
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18 1 JUDGE SPRITZER: Good morning.
2 MS. DOENMEZ: The presence of ASR in all 3 buildings of the Seabrook Nuclear Power Station is 4 assumed by NextEra. The fact of cracking in 5 containment and the spent fuel pool is recognized.
6 That ASR is a progressive and irreversible condition 7 is established.
8 That Seabrook is operating outside its 9 current license is established. That there is no 10 remedy for ASR is known. Since ASR has never before 11 been dealt with in a nuclear power station in the 12 United States, all possible measures and an abundance 13 of caution should be employed in handling the question 14 of the future of the Seabrook Nuclear Power Station.
15 NextEra contends that its visual 16 monitoring of the surface of Seabrook structures is 17 sufficient, that it has put extensometers in place and 18 that the Texas test has shown that ASR conditions at 19 Seabrook do not compromise the operability of the 20 buildings there. It states that it will start to 21 collect data to study trending from 2016 to 2030 using 22 these extensometers, which I believe are not yet in 23 place.
24 C-10 recognizes and is fully aware that 25 ASR exists at Seabrook and that NextEra monitors its NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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19 1 progression by visual inspections in accordance with 2 an NRC schedule. But we are not asking that ASR 3 merely be detected. What we need is full disclosure 4 of the extent of ASR throughout the station, and the 5 evaluation of that condition that can be independently 6 assessed by impartial experts, as well as of the rate 7 of progression since the ASR was first detected in 8 2009.
9 The only meaningful question in 10 considering the future operability of the Seabrook 11 Nuclear Power Station is when the ASR condition will 12 render the station dangerous to the public. When will 13 the walls crack through? When are buildings likely to 14 be able to collapse? When will the rebar 15 reinforcement corrode? How can we project this point 16 of deterioration?
17 In order to get to that kind of an 18 understanding, thorough petrographic analysis of core 19 samples must be done in conformance with standards, 20 I'm sorry, ACI 349.3R and ASTM 856-11.
21 JUDGE SPRITZER: One of our questions for 22 C-10 was to explain what you mean by petrographic 23 analysis. Can you provide us some --
24 MS. DOENMEZ: What we mean by petrographic 25 analysis is the evaluation of the core sampling for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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20 1 the interior of the concrete. As Paul Brown states, 2 the microcracking in rebar-reinforced concrete may not 3 be visible on the surface. The core sampling and the 4 analysis of those core sampling by chemical means and 5 for tensile strength are part of an analysis of 6 petrography that is not just a visual looking at core 7 samples.
8 NextEra has stated that it has taken some 9 samples and looked at them visually, but not subjected 10 them to that thorough analysis that is necessary to 11 evaluate the strength of the interior of the building.
12 JUDGE SPRITZER: You also say that NextEra 13 plans to discontinue, this is in your petition, that 14 NextEra plans to discontinue core sample testing or is 15 attempting to avoid such testing. What's the basis of 16 that statement?
17 MS. DOENMEZ: NextEra took some samples in 18 2015 that were supposed to be submitted to the NRC for 19 further inspection. Some of those samples were given 20 to the NRC, others were not. They then concluded that 21 there were going to be further core samples taken when 22 the extensometers were going to in place, which was 23 supposed to happen in 2016.
24 To the best of our knowledge, some of 25 those extensometers were in place and some core NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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21 1 samples may have been derived at that time. The 2 reporting on core sampling that we have seen to date 3 is one paragraph in a February 2017 report. It's very 4 clear that despite a call for core sampling, NextEra 5 has preferred other methods and not followed through 6 with analysis beyond a visual inspection of core 7 samples.
8 I have further text on that if you'd like 9 me to go to that point.
10 JUDGE SPRITZER: All right.
11 MS. DOENMEZ: The full extent of the 12 information given to us on core sampling done by 13 NextEra came in an email from Fred Bower to Debbie 14 Grinnell in 2015, where he says, "Our conclusions 15 regarding NextEra's core sampling and testing 16 activities are described in NRC inspection reports, 17 which were claimed to be available on the website. I 18 was unable to find them.
19 For affected structures, NextEra staff 20 assessed structural design attributes using bounding 21 values for assumed ASR degradation derived from core 22 industry test data. These evaluations were informed 23 using the material property test results from core 24 samples from various Seabrook ASR affected and 25 nonaffected structures." That was in 2015. It's an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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22 1 email from Fred Bower to Debbie Grinnell.
2 There is not a lot of detail communicated 3 here, but it does suggest some use of core sampling.
4 There were also mentioned in this email the fact that 5 there were 30 cores, 20 of which seemed to have been 6 reviewed, ten of which were not. And it appears to be 7 the case that NextEra changed their mind about handing 8 over five of the core samples to the NRC at that time.
9 JUDGE SPRITZER: Is this email you're 10 referring to, has this been submitted to us? I'm not 11 familiar with it.
12 MS. DOENMEZ: To you, it is in, I believe 13 it is in ML14112A323.
14 JUDGE SPRITZER: All right.
15 MS. DOENMEZ: I guess my time is up, and 16 I will turn it over to Pat Skibbee for attention to 17 other contentions.
18 JUDGE SPRITZER: All right. Thank you.
19 MS. DOENMEZ: I'm sorry, to Chris Nord.
20 MR. NORD: So on to Contention D. Quoting 21 from NRC staff answer to C-10 from the 5th of May, 22 "Contention D is not admissible in and of itself, 23 because it does not explain why its representative 24 argument is within the scope of the proceeding or 25 material to any of the findings its staff must make.
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23 1 Contention D merely asserts in the 2 abstract that the test program is not representative 3 of the Seabrook concrete and does not explain what 4 effect this lack of representativeness has on the LAR 5 or on the findings that staff must make on the LAR."
6 So our response is as follows. Contrary 7 to the assertions made by staff with regard to their 8 claim of inadmissibility of C-10's Contention D for 9 not explaining why representativeness is within the 10 scope of the proceedings, C-10 very specifically 11 addressed this point.
12 Both staff and NextEra seem to want to 13 make the concept of representativeness something we 14 have introduced on our own. In fact, we make plain 15 that representativeness of new Texas concrete as the 16 source of testing data to be used for the strength of 17 Seabrook's three-plus-decade old concrete is a concept 18 that NextEra made central to their license amendment 19 request.
20 Because NextEra's contractor for the 21 Ferguson project, MPR Associates, made so succinctly 22 their understanding of the central importance NextEra 23 has given representativeness to the issue of how 24 Seabrook's concrete strength may be analyzed and their 25 understanding of why they were contracted for testing NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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24 1 and analysis at Ferguson by NextEra, C-10 quoted from 2 their LAR supporting document, MPR-4288, in our 3 petition for lead to intervene.
4 And just to take one sample of that, "The 5 application of the conclusions from the literature to 6 structure at Seabrook Station can be challenged by 7 lack of representativeness. As a result, for selected 8 structural limit states, NextEra commissioned MPR to 9 perform large-scale structural testing using specimens 10 that were designed and fabricated to be representative 11 of structures at Seabrook Station."
12 Obviously, NextEra uses nearly identical 13 language concerning representativeness within the body 14 of the LAR itself. And I have three examples. First 15 example, "The specimens that were used in testing were 16 structurally representative of concrete used in 17 constructing Seabrook." That's Page 15, Paragraph 1.
18 The second one, "Although structural 19 testing of ASR-affected test specimens has been 20 performed, the application of conclusions to the 21 specific structure can be challenged by lack of 22 representativeness in the data." And that's Page 15, 23 Paragraph 3.
24 And then the last one, "The large-scale 25 test programs included testing specimens that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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25 1 reflected the characteristics of ASR-affected 2 structures at Seabrook Station." That's on Page 15, 3 Paragraph 4.
4 C-10 elected to quote from MPR Associates 5 in our petition to establish that the firm in charge 6 of the testing program that forms the experimental 7 basis of the LAR, and I want to emphasize that this is 8 experimental, clearly understood that the appearance 9 of representativeness was a goal of the project and 10 therefore central to the LAR.
11 And in its turn, this appearance of 12 representativeness that is central to our opposition 13 to LAR, NextEra has attempted a kind of sleight of 14 hand in creating a facade of legitimacy around testing 15 purpose-formed Texas concrete for strength data in 16 place of their own New Hampshire salt marsh variety 17 while calling the use of Seabrook Station concrete 18 impractical without justification.
19 MPR was not blind to the pitfalls of a 20 test program that, in their own words, "is unique in 21 the industry and purpose, scale and methodology",
22 which is why we're calling it experimental. They name 23 the criterion, which they and NextEra understand must 24 be met in order for the LAR to have merit. "The 25 application of the results of the vessel test program NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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26 1 requires that the test specimens be representative of 2 reinforced concrete at Seabrook Station." And that is 3 in our C-10 petition for lead to intervene Page 9, 4 Paragraph 2.
5 Because NextEra and MPR have repeatedly 6 stated the significance of representativeness as a 7 criterion of the applicability of the Ferguson project 8 to Seabrook's ASR degradation, the burden of proof is 9 not on C-10 to establish how representativeness may be 10 germane to the proceedings.
11 NextEra must defend how the Ferguson 12 project can in any way represent the ongoing ASR 13 degradation here on the New England coast. In C-10's 14 judgement, it does not.
15 JUDGE SPRITZER: Our second question on 16 contention of admissibility was what would satisfy 17 C-10 that the limits derived from the LSTP results are 18 bounding of the Seabrook Unit 1 concrete. Can you 19 answer that?
20 MR. NORD: I could. We're a little out of 21 order here. I don't mean as far as your process goes, 22 but our intention was to go all the way through our 23 presentations concerning contentions and then go with 24 the questions. We want to make sure that we don't go 25 over our time for the presentation part. But, if you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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27 1 want us to answer directly now according to those 2 questions that were submitted, I'd be happy to do it.
3 JUDGE SPRITZER: Yes, that would be 4 helpful. That's our primary interest here. All of us 5 have read your petition in detail.
6 MR. NORD: So you would like me to go 7 ahead and answer the question?
8 JUDGE SPRITZER: Yes.
9 MR. NORD: Okay.
10 MS. TREAT: Do you have that question in 11 front of you?
12 MR. NORD: I'm trying to find it.
13 MS. TREAT: Okay, it's right here, number 14 two.
15 MR. NORD: Number two, good. Okay. What 16 would satisfy C-10 or staff that the limits derived?
17 Understood. Okay. C-10's answer is as follows. If 18 large-scale testing was needed to establish data for 19 comprehensive monitoring of Seabrook Unit 1's ASR, why 20 was such testing of concrete sections cut from Unit 2 21 considered impractical while purpose-formed relatively 22 short-lived concrete with rapidly propagating ASR from 23 entirely different sources are to be accepted as 24 representative?
25 Unit 2's concrete is for all intents and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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28 1 purposes the same age, subject to the same conditions 2 of weather and water without the radiation exposure of 3 course, which we cite in our petition as known to have 4 a further deleterious effect, and which would 5 therefore have to be factored in.
6 C-10 has asked this question concerning 7 why Unit 2 wasn't used literally for years now in 8 every official form available to us with virtual 9 silence in response. The most important quality which 10 NextEra and MPR have failed to quantify is one they 11 themselves have highlighted, representativeness, as I 12 just mentioned.
13 Because the concrete used in Texas has so 14 little in common with the in situ concrete of Seabrook 15 Station, as C-10 lays out all through Contention D, 16 the data derived has only the most general 17 relationship to Seabrook in terms of ASR progression.
18 And how then can its applicability be 19 reliably quantified in a way that is useful for 20 Seabrook's problem. The relevance of the data derived 21 from the Ferguson study is unknown, and for the sake 22 of the health and safety of the community surrounding 23 Seabrook, this should be considered inapplicable.
24 As to the specific question about 25 bounding, I want to point out that, you know, bounding NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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29 1 has been used in a couple of different ways and 2 apparently means a couple of different things.
3 Bound can mean to exceed and that's how 4 NextEra has used it. Bound can also mean to 5 encompass. And in the sense that the Ferguson test 6 encompasses Seabrook for all of the reasons that we 7 have stated and that NRC staff had actually bundled 8 together so eloquently in their response to us, we do 9 not consider that the Ferguson test is bounding of or 10 is encompassing of the Seabrook ASR problem. That's 11 as detailed as I can get it.
12 MS. TREAT: That wasn't the question.
13 MR. NORD: That wasn't the --
14 MS. TREAT: The question is what would 15 satisfy --
16 MR. NORD: Oh, what would satisfy C-10, as 17 we have attempted to say repeatedly in every forum as 18 I have mentioned, is that we see thorough petrographic 19 analysis of the concrete at Seabrook in order to have 20 a basis to compare the data from Texas to see that it 21 has any relationship to what is going on at Seabrook.
22 And if for some reason that is judged to 23 be impossible with the active Unit 1, then you 24 certainly have a reactor sitting right next door 25 that's all closed up that could be used. The concrete NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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30 1 from that could certainly be used. It's all 2 reinforced exactly the same way as the one next door.
3 It seems to us an obvious treatment of 4 this problem and unless and until that's done, this is 5 not bounding. And I wanted to go back to something 6 that was said a little earlier by Ms. Doenmez about 7 petrographic analysis, just to say that none of us are 8 engineers. I'm sure that's obvious to all of you.
9 We're simply lay people who are trying to 10 get this task done because of the extreme importance 11 of it. So we're following the lead of our expert, Dr.
12 Paul Brown, who has made very clear that the ACI and 13 ASTM standards that we have already cited for you are 14 the ones that he believes should be followed.
15 And to just take one piece of that, for 16 instance, testing crack width indexing and using 17 extensometers is not in itself to be considered 18 thorough petrographic analysis. It's a part of, but 19 to call that petrographic analysis is not to get us 20 the whole picture of the degradation of Seabrook.
21 JUDGE MTINGWA: Is it your understanding 22 that the concrete used in Unit 2 precisely the same as 23 the concrete used in Unit 1?
24 MR. NORD: My answer to that is, you know, 25 again, I'm not a concrete expert. I just know that to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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31 1 the best of my knowledge, the concrete was gotten from 2 generally the same site for both units. They were 3 poured within a matter of years of each other, as 4 opposed to a 30-year difference.
5 Both of those units have stood out in the 6 weather, have been subject to degradation having to do 7 with inundation from the salt marsh. They've been 8 subject to brackish water. All of those things that 9 have happened to Unit 1's concrete has happened to 10 Unit 2's concrete, except for the radiation exposure, 11 which according to NRC's own documents, which we have 12 cited in our petition, indicate that radiation can 13 have a deleterious impact. And that that impact will 14 actually be magnified by ASR.
15 So it's going to be a much closer fit than 16 the concrete that is purpose-formed that is relatively 17 short-lived that was used in Texas for the Ferguson 18 study subjected to 28-day tests. It can't get any 19 closer than that.
20 I'm getting hand signals from my boss over 21 here. We want to just make sure that we're not way 22 over time. We have one more important presentation 23 that we want to make --
24 JUDGE SPRITZER: Before you do that, Judge 25 Trikouros has a question.
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32 1 MR. NORD: -- so, you know, I'm trying to 2 answer them, but hopefully, you're going to give us 3 the time we need to get through all this.
4 JUDGE TRIKOUROS: We'll give you the time.
5 MR. NORD: Okay, thank you.
6 JUDGE TRIKOUROS: In the cover letter that 7 accompanied Dr. Brown's analysis --
8 MR. NORD: Yes.
9 JUDGE TRIKOUROS: -- basically it said 10 that C-10 and UCS have reviewed Dr. Brown's analysis, 11 and they urged the NRC to deny the license amendment 12 until certain things happened.
13 There were three specific things that were 14 called out. One was that appropriate tests be carried 15 out, which you've been discussing now. Two, to 16 develop a specific system for monitoring Seabrook's 17 structures. And, three, to develop a specific plan 18 for responding to the future progress of ASR.
19 Now, of those three, is the appropriate 20 testing the only one that concerns you at this point?
21 MR. NORD: Well, I'm a little stumped 22 trying to answer this question, because my 23 understanding of this hearing was that our point was 24 to speak in opposition to adoption of the LAR. And 25 you're asking questions that are leading us beyond the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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33 1 license amendment request itself. Can we have a 2 minute to discuss between us?
3 JUDGE TRIKOUROS: Well, let me point out 4 that one of the major purposes of the LAR was to 5 develop a specific monitoring system, so many of the 6 tables in the LAR are dealing specifically with 7 monitoring.
8 MR. NORD: Absolutely.
9 JUDGE TRIKOUROS: All right.
10 MR. NORD: Correct. So, you know, is the 11 -- okay, I'm seeing taps that I should not say another 12 word until we have a chance to speak, so we're going 13 to mute for a minute.
14 JUDGE SPRITZER: All right, go ahead.
15 (Whereupon, the above-entitled matter went 16 off the record at 10:43 a.m. and resumed at 10:44 17 a.m.)
18 MS. TREAT: I'm sorry, was that Judge 19 Spritzer that asked the question or was it about the 20 cover letter? Were you referring to the batch of 21 board comments that were submitted on March 9th or 22 about our petition to intervene on April 10th?
23 JUDGE TRIKOUROS: Yes, this was October 24 21st letter to Justin Poole from the then executive 25 director of C-10.
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34 1 MS. TREAT: Okay, that was before. So it 2 was the October letter. Okay, it was about submitting 3 the comments.
4 JUDGE TRIKOUROS: And it attached the Dr.
5 Brown analysis.
6 MS. TREAT: Okay. Was that sent as an 7 appendix to our filings this spring or it just stood 8 alone as an earlier submission?
9 JUDGE TRIKOUROS: One second.
10 MS. TREAT: You don't know? As I 11 mentioned, I'd come on board here in March and our 12 board has been leading the effort, as you can see, on 13 the contentions. So it's the October 2015 that Sandy 14 submitted.
15 JUDGE TRIKOUROS: Yes, you did not send us 16 that document, but you did reference it, and we were 17 able to find it in --
18 MS. TREAT: It was referenced in our 19 comments, and it was what -- yes.
20 MR. NORD: Okay, so it's October 15th, 21 correct? Of what year, October 15th?
22 MS. TREAT: Did you say that was 2015 or 23 '16?
24 JUDGE TRIKOUROS: October 21st of '16.
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35 1 keep it brief. Thank you.
2 (Whereupon, the above-entitled matter went 3 off the record at 10:46 a.m. and resumed at 10:47 4 a.m.)
5 MR. NORD: My apologies to you all, we 6 have not been able to find the specific document so 7 that we can see it. I'm going to try to state as 8 simply as possible that our interest is to see the 9 Nuclear Regulatory Commission and, through the Nuclear 10 Regulatory Commission, the licensee follow existing 11 well-established standards for petrographic analysis 12 that are the standards from ACI and ASTM that we 13 mentioned above, those apply specifically to nuclear 14 plants.
15 That's what we would like to see. That's 16 what our expert witness has called for. And we're 17 going to get much closer to knowing what's actually 18 going on with the ASR problem at Seabrook if that 19 happens. And unless and until that happens, the 20 results that we find from the Ferguson study are not 21 bounding of the Seabrook ASR problem for the reasons 22 I've already stated.
23 JUDGE TRIKOUROS: Okay. The logic I'm 24 trying to get through is this. There is a monitoring 25 program in place identified in the LAR. That NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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36 1 monitoring program has certain limits, acceptance 2 criteria that are derived from the large-scale testing 3 program.
4 And your contention is, and Dr. Brown's 5 comments are specifically stating that that test 6 program data is not representative of Seabrook.
7 Therefore, anything associated with it would not be 8 appropriate for Seabrook.
9 However, you also state, and I believe Dr.
10 Brown also states that the large-scale testing program 11 would be acceptable if there were appropriate testing 12 done on the Seabrook concrete itself. Such, and I'm 13 drawing a conclusion here, such that there would be 14 let's say a benchmarking of the testing program to the 15 plant. Is that correct?
16 MR. NORD: As I said before, the testing 17 that was done at Ferguson, its applicability to 18 Seabrook is unknown. It's unknown. Because we don't 19 know, as you said benchmarking, we don't know what its 20 relationship is to Seabrook.
21 We need a study done that involves actual 22 Seabrook concrete in order to have any idea what 23 relationship the Ferguson test has to Seabrook 24 concrete, first of all. Second of all, we need to 25 know in the kind of testing that was done at Ferguson, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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37 1 where the tipping point is, where the failure point is 2 beyond the tipping point, because the Ferguson test 3 did not test out that far.
4 And we have comments that we want to make 5 that I am not prepped to do, but one of our presenters 6 today is set to do that when we have a chance to get 7 to that. But, you know, there are certain things that 8 we have called upon you all to institute, so we're 9 trying to get to that. I'd like to turn over the 10 chair here to Sarah Doenmez, who is going to try to 11 complete your answer.
12 JUDGE TRIKOUROS: Before you do that, it 13 appears that, if appropriate tests were done to your 14 satisfaction, then you would consider -- and assuming 15 the answers were of an appropriate benchmark to the 16 test data, then you would consider the testing program 17 representative and therefore, the LAR monitoring 18 program would be acceptable. Does that logic follow 19 correctly?
20 MR. NORD: I think, based on the questions 21 that have been put before us as far as certifying the 22 LAR or not certifying, we're going to remain standing 23 in opposition to the LAR as it was presented to us.
24 So I'm going to relinquish the chair here to Ms.
25 Doenmez.
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38 1 MS. DOENMEZ: Thanks. I just want to 2 address the aspect of your question that has to do 3 with the testing as proposed in the LAR. First of 4 all, I'll just make it clear that we only saw a 5 nonproprietary version of the LAR so that the test 6 data was blanked out in certain places.
7 But, I will say that the LAR envisions a 8 program of visual monitoring of the structures of 9 Seabrook on a tiered program of Tiers 1, 2 and 3.
10 They list even the containment building, which is 11 known to have severe outer cracking and building 12 deformation as a Tier 1 problem, the least of the 13 severe problems, which means monitoring, I think, only 14 on the scale of time of every year.
15 We would not view external visual 16 monitoring, even if it does use the cracking index, as 17 sufficient testing whether of Ferguson or of Seabrook 18 concrete unless we have some kind of thorough 19 petrographic testing that uses core sampling over 20 time, petrochemical analysis for shearing and for 21 tensile strength.
22 None of Seabrook's current comments or 23 NextEra's current comments on Seabrook talk about the 24 tensile strength of that building. Until we have 25 testing that looks at the strength of the rebar, we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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39 1 would not be satisfied with the testing program 2 outlined in the LAR.
3 JUDGE SPRITZER: Let me ask this, Question 4 number 11 on contention and admissibility, we asked 5 you whether you have requested access to the 6 proprietary versions of the LAR documents, the License 7 Amendment Request documents. Have you done that? And 8 if so, what's the status of that?
9 MS. DOENMEZ: We have done that, and Pat 10 Skibbee can speak to that more thoroughly in a moment.
11 I just want to also mention that ultrasonic testing is 12 another form of petrographic analysis that we would 13 consider called for.
14 In other words, the whole point being that 15 we need to know what is going on in the interior of 16 the concrete, damage that may not be visible on the 17 surface via surface cracking. So I will turn this 18 over at this point to Pat Skibbee to address that 19 question about our requesting the more proprietary 20 data. Thank you.
21 MS. SKIBBEE: Hi, Pat Skibbee. So I'll 22 try to answer, which is a yes or no question, have we 23 attempted to get a non-proprietary version of the LAR, 24 and the answer is yes. We filed a 2.206 in order to 25 do that. It's May 12th, it's actually 2.204, sorry.
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40 1 And we have not had a response to that, to 2 Mr. Victor McCree, director of operations. We have 3 not had a response to that. So yes, we have attempted 4 to do that.
5 JUDGE SPRITZER: All right.
6 JUDGE TRIKOUROS: Well, once again, I just 7 want to clear this up before we move on. The focal 8 point seems to be that if appropriate tests were done, 9 that the majority of your concerns would disappear, 10 assuming the appropriate tests showed that the large 11 scale test program was adequate. Is that a correct 12 statement?
13 MS. SKIBBEE: I think that's not a correct 14 statement. I think as other people have already 15 spoken to, the idea of using formed concrete in Texas 16 as a stand-in for concrete in a disintegrating nuclear 17 power plant is absolutely not appropriate.
18 I think this is what should happen. I 19 think the LAR should be rejected, and what should 20 happen is that the NRC should take on the 21 responsibility which I believe should belong to the 22 NRC for creating a test protocol for ASR that would 23 apply to all nuclear facilities in the country.
24 I mean, what we have now is we have the 25 Applicant, NextEra, creating or attempting to create NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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41 1 regulations to control itself.
2 JUDGE TRIKOUROS: Well, when I say 3 appropriate tests, I'm not talking about experimental 4 tests. I'm talking about tests on the actual concrete 5 at Seabrook itself. Okay, so I'm not referring to the 6 FSEL program.
7 All right, and that's, in reading the 8 material that you've provided us, it sounds as if that 9 was what you wish to happen, assuming it's not 10 happening. That is what you wish to happen. And that 11 would give you confidence that the large scale test 12 program is acceptable, or let me say representative.
13 MS. SKIBBEE: No, I can't see how those 14 things are related to each other actually.
15 MS. TREAT: I would say that it's not only 16 the testing, but the sharing of the information, the 17 results of the tests with the public as appropriate so 18 that we know where is the point of danger.
19 JUDGE TRIKOUROS: Well, let's say for the 20 sake of argument that that information was available 21 to you. Would that satisfy it?
22 MS. SKIBBEE: You would have to explain 23 what you mean by the relationship between testing the 24 actual concrete in Seabrook compared with testing, you 25 know, preformed concrete.
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42 1 MS. TREAT: He's talking about testing in, 2 he's talking about testing in --
3 MS. SKIBBEE: No, I think you're talking 4 about if there were adequate testing at Seabrook, 5 would that convince us that the Ferguson Structural 6 Engineering Laboratory tests are valid, is that right?
7 Is that the question?
8 JUDGE TRIKOUROS: Right. Well, that was 9 your contention, that it would not be valid until such 10 testing were done.
11 (Off microphone comments.)
12 MS. SKIBBEE: No, that would render the 13 FSEL testing irrelevant, which I believe we contended 14 is irrelevant. Somebody else want to jump in here?
15 MS. SKIBBEE: Am I answering your 16 question? Does someone else want to speak to this 17 JUDGE SPRITZER: We have obviously kept 18 you there with questions passed the 30 minute limit.
19 Do you have any other of our questions that anybody is 20 going to address?
21 MR. NORD: There's two other contentions.
22 JUDGE SPRITZER: Two other contentions, 23 all right. Then is one person going to speak to 24 those?
25 MS. DOENMEZ: Yes.
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43 1 JUDGE SPRITZER: Okay, why don't we hear 2 from that person, and at that point I think since we 3 have run over, we'll take a break. Let me just 4 quickly ask the staff at NextEra, we didn't provide a 5 specific order for you. Which of you, have you 6 discussed among yourselves who will speak first, staff 7 or NextEra when we do get to you?
8 MR. HARRIS: This is Brian Harris for the 9 staff. We had not discussed amongst us who would go 10 first. I would probably defer to NextEra if they 11 wanted to go first since it is their license amendment 12 that's at issue.
13 JUDGE SPRITZER: I think that makes sense.
14 Is that all right with NextEra?
15 MR. LIGHTY: We're fine with either, Your 16 Honor. We thought it might make sense for the staff 17 to go first to respond to the Board's question about 18 their proposed reformulated contention so that we 19 could follow them and respond to those remarks. But 20 we're fine with either order.
21 JUDGE SPRITZER: Well that does also have 22 a certain appeal. Is that all right with the staff 23 for you to go first and discuss your reformulated 24 contentions and then NextEra can address their 25 objections to both the original contentions and your NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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44 1 reformulated contentions?
2 MR. HARRIS: That's fine with the staff, 3 Your Honor.
4 JUDGE SPRITZER: All right. As I said, 5 we'll try and finish up with the Petitioners now, and 6 then we'll take a short break and come back and start 7 with the staff. All right, Petitioners with the last, 8 you said you had two additional questions you wanted 9 to, two additional contentions you wanted to talk 10 about?
11 MS. SKIBBEE: Yes, please. Yes, this is 12 Pat Skibbee speaking. So good morning. I think we've 13 sort of done our good mornings, but I do want to say 14 that we appreciate the opportunity to bring these 15 things to light.
16 The NRC has kindly suggested that C-10 17 combine it's ten submitted contentions into one 18 general contention. C-10 has done that to some 19 extent, and I want to continue in that vein while 20 stressing two specific areas of serious concern in 21 this section of our testimony.
22 The purpose of this proceeding from C-10's 23 perspective is to support our position that the NRC, 24 through its Atomic Safety Licensing Board, should 25 reject NextEra's license amendment request on the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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45 1 grounds that it does not fulfill the critical function 2 of providing adequate testing and monitoring 3 procedures for the ASR damaged concrete structures of 4 the Seabrook Nuclear Power Plant.
5 I'll begin by using the NRC's wording to 6 restate our major and inclusive contention, "The 7 MTR/FSL large scale test program is not bounding of 8 the Seabrook concrete because of the age of the 9 Seabrook concrete, the length of time that ASR has 10 propagated in the Seabrook concrete, the effect of 11 water at varying levels of height and varying levels 12 of salt concentration on the Seabrook concrete, the 13 effect of heat on the Seabrook concrete, and the 14 effect of radiation on the Seabrook concrete.
15 As a result, the proposed monitoring 16 acceptance criteria and inspection intervals are not 17 adequate." C-10 maintains that the testing is not 18 bounding of the Seabrook concrete for the reasons 19 stated above because at this point testing that has 20 been done, and the testing and monitoring proposed in 21 LAR-1603 is insufficient to establish the actual 22 status of the 40 year old concrete at Seabrook 23 Station.
24 Therefore, it is impossible to know 25 whether the testing is actually bounding of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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46 1 situation at Seabrook or not. In support of this 2 position, the following information is offered.
3 First, the concept of tipping point in failure of any 4 sort.
5 Have you read the responses to this area 6 of our contention in the NRC response? I feel need to 7 explicate the concept. Tipping point is the point at 8 which failure is inevitable. Therefore, it precedes 9 actual failure.
10 The amount of time at which, excuse me, 11 the amount of time and margin by which it precedes 12 actual failure depends on the circumstances and the 13 materials in question. This concept is totally 14 missing from the LAR.
15 There is a definite lack of acknowledgment 16 that such a tipping point or a following failure could 17 ever be reached. It is impossible to know that the 18 plant is operating within a margin of safety when 19 neither margin is known.
20 LAR in Section 2.51 lays out limits to ASR 21 damage that are acceptable. The percentages are 22 redacted. "The ASR expansion limit stays are 23 summarized in Table 4." The LAR then states that the 24 test program did not, "test out to ASR levels where 25 there was a clear change in limit state NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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47 1 capacity/failure," Page 16 of 73.
2 Instead, the LAR states that, "Maintaining 3 these limits is assured by periodically measuring 4 through thickness expansion areas affected by ASR."
5 The point here is that repeatedly the LAR purports 6 that the structures at Seabrook are operable but 7 degraded as long as ASR damage remains below the 8 higher degradation limits found or imposed on the 9 "representative" test samples in Texas which are 10 stated to be higher and more severe than the actual 11 damage at Seabrook.
12 But it is acknowledged by all the ASR is 13 progressive and non-self-limiting. Therefore, what is 14 the future scenario when the monitored ASR damage at 15 the actual plant exceeds the percentages in Table 4.
16 This is the area that is completely ignored by the 17 ASR.
18 JUDGE SPRITZER: Well, my understanding, 19 and the staff or NextEra can correct me if I'm wrong 20 when we get to their presentations, but my 21 understanding is the ASR limits in Table 4 are 22 essentially intended to make sure you never get to the 23 so-called tipping point, that is they kick in at a 24 point before there would be the type of very serious 25 degradation that you're referring to. Is that your NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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48 1 understanding also?
2 MS. SKIBBEE: But my question is --
3 JUDGE SPRITZER: We just, we didn't hear 4 your answer.
5 MS. SKIBBEE: Your opinion and mine are 6 the same. But the question is ASR doesn't stop 7 because limits are reached, because it exceeds Table 8 4. The ASR continues.
9 JUDGE SPRITZER: What's your understanding 10 of what they'll do when we get to the limits in Table 11 4? My understanding is they will basically have to 12 reevaluate at that point. Is that your understanding 13 also?
14 MS. SKIBBEE: I don't think reevaluation 15 answers the danger of crumbing concrete. And that's 16 exactly my point about the LAR, it does not address 17 what the real issue is. This is a progressive non-18 self-limiting, rate unknown situation that's going on 19 at Seabrook. And because you write a limit in Table 20 4 doesn't mean the ASR stops. It doesn't stop. It 21 keeps right on going.
22 JUDGE SPRITZER: So it sounds to me like 23 your real complaint is you don't know what's going to 24 happen next if you ever do get to the ASR limits in 25 Table 4, is that a fair statement?
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49 1 MS. SKIBBEE: That is a fair statement, 2 and that should be the concern of all involved.
3 JUDGE SPRITZER: All right.
4 MS. SKIBBEE: That is the chief concern, 5 exactly. Shall I go on?
6 JUDGE SPRITZER: If you have anything 7 further.
8 MS. SKIBBEE: I do.
9 JUDGE MTINGWA: Let me ask you a question, 10 ma'am. How would you go to the tipping point? What 11 would you do to do what Dr. Brown called turning the 12 concrete into mush and it just crumbles.
13 What would you do? Suppose there is no 14 tipping point anywhere in the -- by stretching things 15 even far beyond where they are now because you're 16 talking about radiation damage, heat damage and so 17 forth. How would you get to the tipping point?
18 MS. SKIBBEE: Well, we don't have to get 19 to the tipping point. The concrete damaged by the 20 alkali-silica reaction gets to the tipping point all 21 by itself.
22 JUDGE MTINGWA: No, but I mean what would 23 you suggest that NextEra does to test some sampling of 24 concrete toward the tipping point?
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50 1 that the testing that was done at the Ferguson 2 Structural Engineering Laboratory, it says that they 3 did not have sufficient samples and it was impractical 4 to test to the tipping point or point of failure.
5 We really don't understand if they had a 6 lack of samples why they couldn't make more samples, 7 or why it would be impractical to keep on testing 8 until you get to a point of failure because logically, 9 and this is covering some of what I'm going to read, 10 I mean, logic will tell you that it's going to get to 11 the point of failure.
12 The question is when is it going to get to 13 the point of failure? And the testing that was done 14 at the lab on the, sorry, artificial concrete 15 manufactured for that purpose, it wasn't even tested 16 to that point.
17 JUDGE MTINGWA: Okay, but --
18 MS. SKIBBEE: We don't understand --
19 JUDGE MTINGWA: But you have problems with 20 the large scale test program. So even if they reached 21 the tipping point there, why should you believe that 22 would be applicable to the Seabrook Unit 1?
23 MS. SKIBBEE: That is a very good 24 question. And the presumed answer is correct, it's 25 still irrelevant. But our job today is to explain why NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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51 1 this license amendment request should be rejected, why 2 it is not adequate.
3 And therefore we're trying our best to 4 focus on that. So that is a fault in the LAR. I 5 mean, it's obviously a more general fault in the whole 6 situation. But for purposes of this proceeding, it's 7 a false in the LAR.
8 JUDGE SPRITZER: Let me ask this of you, 9 and again maybe the staff and NextEra can help me with 10 this also. If they did get to the Table 4 limits, 11 wouldn't they then be outside their current licensing 12 basis even if the LAR is approved? That is they can 13 only go out to those limits --
14 MS. SKIBBEE: Right.
15 JUDGE SPRITZER: -- and then they're back 16 outside, or they're back to square one essentially, 17 they're back outside their current licensing basis, 18 isn't that right?
19 MS. SKIBBEE: That's right. That's right.
20 And so --
21 JUDGE SPRITZER: At which point the NRC 22 staff, the NRC would have to decide what action is 23 appropriate, wouldn't they?
24 MS. SKIBBEE: Yes. And while all those 25 things are true, they do not stop the progression of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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52 1 the LAR and the concrete.
2 ASR, what did I say? Sorry, ASR. Let me 3 see if I can skim through the rest of this because 4 some will be repetitive of our conversation. Well I 5 just, this is repetitive but I'm going to say the 6 sentence anyway.
7 The LAR does not address the end stage 8 scenario even though it is logically clear that 9 someday it will occur. There is no way to stop ASR, 10 it will keep eroding the plant, not only through its 11 operational license but for the foreseeable future and 12 beyond.
13 Let me summarize for time's sake. The 14 rate of progression is unknown. We don't know if it's 15 linear, we don't know if it varies, we don't know if 16 it can increase or decrease. These things are just 17 not known at this point.
18 There's another vital omission from the 19 LAR and supporting MPR documents which relates 20 directly to the overall question of representativeness 21 of the Texas manufactured concrete to the actual 22 Seabrook concrete.
23 There is no chart or table or text 24 comparing the chemical and molecular composition of 25 the two concretes. It is stated in the MPR testing NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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53 1 that all concrete used in the large scale Texas test 2 was exactly the same. Elsewhere it is stated that 3 Seabrook concrete is inhomogeneous which I believe 4 means heterogeneous, that is different mixes were used 5 in different parts of the plant.
6 There were 12 different mixes used in 7 Seabrook according to MPR 4153 Page 22 Section 3.3.1.
8 Therefore, representativeness has not been 9 demonstrated in the LAR. In a number of areas in the 10 LAR, NextEra states that the concrete made for testing 11 was, "designed to be as representative as practical of 12 the concrete at Seabrook Station including 13 reinforcement detail."
14 It is not explained what this means or how 15 the several concretes differ. What are the practical 16 considerations that prevented FSEL from replicating 17 rather than making it representative of the Seabrook 18 concrete?
19 What are the factors that presented FSEL 20 MPR from testing to the point of failure? LAR states 21 that it was the number of samples, at least in part, 22 that prevented such testing. Again, could they not 23 have made more samples? Let me see if I can skim 24 through this part.
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54 1 C-10 believes there is no way to completely accurately 2 predict the tipping point or point of failure.
3 However, it is clear that this LAR fails to even 4 attempt to get to that final finding.
5 This area of our contention is within the 6 scope of the proceeding and it directly addresses 7 stated parameters of the LAR. It is material to what 8 the NRC staff must find to determine the validity of 9 the LAR since it goes directly to the stated testing 10 protocol of the LAR.
11 It is supported by citation to the LAR, 12 MPR 40153, concrete expert Dr. Paul Brown, and oral 13 statements by NRC staff at the June 15th, 2017 14 meeting.
15 The second, and this is way shorter, the 16 second specific area under the general contention I 17 want to comment on is the lack of soundness of the 18 LAR's proposed structural monitoring program 19 inspection intervals.
20 Table 5 in Section 2.5.1 proposes a fixed 21 schedule monitoring based on current crack index 22 observation. The intervals vary from 6 months to 30 23 months, depending on current visual observation. But 24 at this time, there is no evidence or knowledge on the 25 speed of disintegration of the concrete or the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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55 1 anticipated rate, steady, increasing, decreasing of 2 ASR progression.
3 Given current technologies, including 4 petrographic examination and the potential for wider 5 than proposed use of extensometers, the LAR should 6 have proposed an ongoing monitoring schedule of all 7 parts of Seabrook Station.
8 To not look at any part for 30 months is 9 not sensible. Due to this inadequate monitoring 10 schedule and due to the lack of current knowledge of 11 the seed of progression ASR at the plant, LAR 1603 12 needs to be rejected because it does not adequately 13 account for the probable changes to the actual 14 Seabrook concrete.
15 Therefore, it does not fulfill the NRC's 16 stated mission of protection of public health and 17 safety in the lack of adequate monitoring result in 18 leakage of radioactive materials from any structure of 19 the plant. The health of those within the ten mile 20 proximity of the plant is threatened by that leakage.
21 Rejecting the LAR addresses that injury 22 because it that is a better monitoring system, could 23 foresee and present such leakage. This contention is 24 within the scope of this proceeding and it addresses 25 directly the structural monitoring program of the LAR.
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56 1 It is material to what the staff must 2 decide in order to determine the validity of the LAR 3 since it points out a serious flaw in it. Citations 4 are used from the LAR itself, and this part of the 5 contention raises a genuine dispute with the proposed 6 LAR.
7 JUDGE SPRITZER: All right, let me ask my 8 colleagues if they have any further questions at this 9 point. Otherwise we'll take a break and then hear 10 from the staff.
11 MS. SKIBBEE: Wait, so just a sec.
12 Somebody wants to say something here.
13 MR. NORD: There was one more comment on 14 contention, which you can read if you want to. I mean 15 --
16 MS. SKIBBEE: Oh, it turns out we have one 17 more comment on contention which I hadn't realized.
18 You want to do it?
19 MR. NORD: Yes, I can do it. It's very 20 short.
21 MS. SKIBBEE: Okay, Chris Nord is going to 22 do it and he says it's very short.
23 JUDGE SPRITZER: All right.
24 MR. NORD: I promise.
25 MS. SKIBBEE: He promises.
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57 1 MR. NORD: Thank you for your indulgence, 2 gentlemen. It will only take a minute or two. On 3 Contention F, Contention F, this is a quote from NRC 4 staff's answer to C-10 on Page 42.
5 "Contention F is outside the scope of the 6 LAR because Seabrook has an existing structures 7 monitoring program under the maintenance rule of its 8 current license.
9 "This program already inspects for 10 evidence of rebar corrosion through routine visual 11 inspections for corrosion products on the concrete 12 surface and through opportunistic visual inspections 13 of exposed rebar.
14 "C-10 does not identify any evidence of 15 potential rebar corrosion to support its assertion 16 that the rebar is undergoing corrosion. The LAR does 17 not propose to change the methods for monitoring rebar 18 corrosion."
19 So our answer to that is contrary to 20 staff's assertion that we have not identified, "any 21 evidence of potential rebar corrosion," C-10 must 22 point out that the known presence of ASR is evidence 23 that rebar corrosion is underway.
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58 1 which I will not repeat, but it leads him to conclude 2 that, "Given the service environment at Seabrook, I 3 think there is a reasonable basis to anticipate that 4 the reinforcement at some locations is likely to have 5 undergone significant corrosion." That's of our 6 petition Page 13 Paragraph 1.
7 Furthermore, as is the case with ASR-8 attack itself, the reliance on visual inspection noted 9 by staff as the primary inspection tool cited above is 10 not sufficient for a determination of the presence of 11 corrosion, nor is it sufficient for a determination of 12 the presence of ASR as we also know.
13 As described by Dr. Brown, "The 14 accumulation of chloride which is an agent of 15 depassivation and corrosion in the Seabrook concrete 16 can be established by petrographic means using 17 scanning electron microscopy." And that is in our 18 petition, Page 12 Paragraph 9.
19 NextEra has made the presence of the 20 reinforcing steel a component of the rationale for 21 needing the experimental testing program at Ferguson 22 that is central to the license amendment request.
23 Furthermore, their characterization of 24 the, "pre-stressing effect" that they use to 25 rationalize the voracity of the test data derived from NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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59 1 Ferguson relies on the continued strength of the 2 embedded reinforcement.
3 Therefore, the apparent insufficiency of 4 the corrosion monitoring program should be addressed 5 as part of the license amendment request.
6 JUDGE SPRITZER: All right, let me see if 7 my colleagues have any further questions. All right, 8 we'll take a, follow my own rule about silencing the 9 cell phones. We'll take a 15 minute break at this 10 point. We'll come back at 11:30 and start with the 11 staff.
12 MR. NORD: We'll find you, thank you.
13 MS. SKIBBEE: Thank you.
14 (Whereupon, the above-entitled matter went 15 off the record at 11:17 a.m. and resumed at 11:31 16 a.m.)
17 JUDGE SPRITZER: All right, looks like we 18 have everyone back and we're ready to move on and hear 19 from the NRC staff. And that would be from Mr.
20 Harris.
21 MR. HARRIS: That's correct, Your Honor, 22 and thank you. There are a couple of issues I wanted 23 to address before getting into the main presentation 24 just to cover a couple of things that came up in C-25 10's presentation.
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60 1 The first thing that I want to emphasize 2 is that a lot of the arguments that you were hearing 3 earlier was about the NRC staff's review and the NRC's 4 requirement to make NextEra perform a particular 5 analysis.
6 The issue in this proceeding is the 7 adequacy of the license amendment, not the adequacy of 8 the staff's review. We had a chance --
9 JUDGE SPRITZER: While you're on that, if 10 you could, if I could just interrupt for a second, 11 what is the status of the staff's review at this 12 point? Are you able to enlighten us about that?
13 MR. HARRIS: The staff has begun its 14 review. There is still a lot of outstanding review 15 that needs to be done, including some additional 16 information that the staff is seeking that will help 17 to inform its review.
18 I think right now the anticipated time for 19 when the staff might make a decision on this license 20 amendment is towards the fall of 2018.
21 JUDGE SPRITZER: Fall of 2018?
22 MR. HARRIS: That's correct, Your Honor.
23 There is a number of calculations that remain 24 outstanding that the staff needs in order to complete 25 its review.
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61 1 JUDGE SPRITZER: All right, please 2 proceed.
3 MR. HARRIS: With that, proprietary axis 4 that came up earlier it's not, we believe that C-10 5 was referring to a 2206 petition that they had filed 6 previously. That 2206 petition has been denied.
7 In this proceeding there was a NRC notice 8 for the Federal Register that provided the 9 instructions for how to obtain proprietary information 10 in this license amendment proceeding. The staff is 11 not aware and did not receive any request from that 12 notice about obtaining proprietary information.
13 However, should the Board grant the 14 petition, we would expect that a protective order 15 would be put in place for access to that proprietary 16 information going forward.
17 JUDGE SPRITZER: Okay, thank you.
18 MR. HARRIS: And then the one other issue 19 that came up is the practice and procedure digest. We 20 had a chance to go examine that case during the break.
21 It refers to a Georgia Power case that was Atomic 22 Safety and Licensing Board. The cite for it is 34 NRC 23 138.
24 That case found standing because of an 25 affidavit that was submitted in a very recent related NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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62 1 case. However, since that case was originally 2 decided, it's been superseded by a Commission case CLI 3 1007 which states that standing can only be determined 4 based on the pleadings in the case at hand. So it was 5 not just from the signature on the pleading in that 6 case.
7 Moving on to the main presentation, the 8 first thing I would like to address with standing is 9 that petitioners in an Atomic, in an NRC proceeding 10 for a license amendment have a number of different 11 ways that they can establish standing as an 12 organization.
13 They can establish it through their own 14 organizational interest, or through their 15 representational interest. And then separately, you 16 can show standing either through a proximity 17 presumption or through the traditional judicial 18 concept of standing.
19 In this particular case, and consistent 20 with the Commission case law, is license amendments 21 generally aren't entitled to a proximity presumption 22 with the exception of a few cases that have come out.
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63 1 potential for offsite consequences from those kind of 2 license amendments to show in a standard license 3 amendment proceeding you would need to show that the 4 proximity presumption applies by showing that there's 5 an obvious potential for an offsite consequence from 6 this license amendment.
7 And it's the staff's position that this 8 license amendment is not going to result in an obvious 9 potential for offsite consequences is that the 10 concrete that is being used is not being proposed to 11 be modified in any way.
12 The actual analysis of record that is 13 being applied to the concrete is remaining the same 14 and that all NextEra is attempting to do is to provide 15 sufficient technical analysis to show that they can 16 analyze the ASR loads within the concrete structure 17 using those code cases which I believe are HCI 341, 18 I'm sorry, I just -- it was mentioned earlier, which 19 those code cases don't have a way to analyze the ASR 20 issue currently.
21 Without that obvious potential for offsite 22 consequences, the proximity presumption does not 23 apply. Therefore, C-10 needed to show the judicial 24 concept of standing which are traceability, I'm sorry, 25 the ATI code case I was referring to is 318.
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64 1 The traditional concept of standing which 2 is, I'm sorry, injury in fact, traceability, and 3 redressability. It is --
4 JUDGE SPRITZER: Before you go on to that, 5 let me ask a question about the proximity presumption.
6 Most cases, at least most that I've seen involve 7 individuals who reside within a particular distance of 8 a facility that's at issue, nuclear power plant that's 9 either being licensed or has a proposed license 10 amendment.
11 Does it make any difference in this case 12 we're talking about a corporation? I mean, suppose we 13 disagree with you and think there is an obvious 14 potential for offsite consequences, does it matter 15 that C-10 is an organization as opposed to an 16 individual?
17 MR. HARRIS: So it would depend. And 18 that's because an organization itself could show that 19 it is entitled to standing based on its 20 representational standing for its members who are, you 21 know, are entitled, you would evaluate their standing 22 based as persons so that it's not any different when 23 you look at it from that particular perspective.
24 However, they could also show based on 25 their own interest in this proceeding. We think that, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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65 1 you know, an organization is different than a person 2 in terms of that proximity presumption in that they're 3 not entitled to that same type of analysis that they 4 would need to show that their harm is to the 5 organizational interest.
6 That has been the traditional way that the 7 federal courts have taken it if they need to show some 8 particular harm to the actual organizational interest 9 itself.
10 JUDGE SPRITZER: Federal courts don't have 11 a proximity presumption, or at least I've never seen 12 one. In the context of the proximity presumption, 13 let's suppose hypothetically that the petitioner is a 14 brick laying company, but they're within the ten mile 15 area, whatever area is alleged to have an obvious 16 potential for all offsite consequences, wouldn't that 17 be sufficient to establish their standing of whether 18 their particular organizational interests have to do 19 with, you know, making a profit on laying bricks, or 20 in the case of C-10, monitoring activities at 21 Seabrook.
22 In terms of the proximity presumption, 23 does it make any difference?
24 MR. HARRIS: Well it does, just like it 25 does for people is that a person could be entitled to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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66 1 proximity presumption based on their business interest 2 within the -- if we just use the traditional 50 mile 3 range.
4 So if they show that they have significant 5 business interest, a person could establish, or a 6 significant transit across that area could establish 7 a proximity presumption.
8 So you would need to look at that 9 particular corporation's interests within that 50 mile 10 range. So if it's merely a postal address, that might 11 not entitle it to the proximity presumption. If it 12 was a, you know, more substantial action that's 13 located there, that would be I think a different 14 analysis.
15 JUDGE SPRITZER: I mean, the case of C-10 16 they say, and I don't understand you dispute, that 17 their office is located within approximately ten miles 18 of the plant. Am I correct that that's not an issue 19 here, that their office is located approximately ten 20 miles from Seabrook Unit 1?
21 MR. HARRIS: If I understand the question, 22 we're not disputing that their office is located so 23 close to the Seabrook Plant.
24 JUDGE SPRITZER: And it seems that based 25 on what they have provided us in the way of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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67 1 information, that they're, it's more than a post 2 office address. It's where their executive director 3 works, it's where their only office as far as I can 4 tell is located.
5 They also say they do monitoring under 6 contract with the State of Massachusetts, they do 7 radiation monitoring of the plant. That seems like a 8 good deal more than a post office address. Wouldn't 9 that be sufficient to, if the proximity presumption 10 applies, if there is an obvious potential for offsite 11 consequences, wouldn't that be sufficient to, for them 12 to be able to use the presumption as an organization?
13 MR. HARRIS: So while not agreeing that 14 the proximity presumption applies, you know, we think 15 that it's somewhat of a test that it's not an issue 16 that has come up previously where most organizations 17 have sought it through representational standing and 18 provided the appropriate affidavit.
19 It is potentially a fair reading of the 20 regulation. But I think that because the regulations 21 do put out, account for corporations being treated as 22 person within the regulation. So it is a difficult 23 distinction to make.
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68 1 that in a license amendment proceeding that the 2 proximity presumption applies to them.
3 JUDGE SPRITZER: All right.
4 MR. HARRIS: Moving on to the judicial 5 concept of standing, here you need to show an injury 6 in fact from this license amendment proceeding. And 7 the staff's position on this license amendment 8 proceeding is that C-10 has failed to plead any injury 9 in fact to itself in its initial pleading, and that 10 the additional supplementation that occurred in the 11 reply should not be form the basis of any standing 12 finding for C-10.
13 The Board had asked us to review two 14 cases, Bell Bend and South Carolina, and the staff's 15 position on those cases is that they are neither 16 controlling and they are distinguishable from the 17 issue here.
18 Both South Carolina and Bell Bend do 19 contemplate that in the reply --
20 JUDGE SPRITZER: Sorry, let me just ask 21 first, are those still, I understand your argument 22 that they were distinguishable, but have either of 23 them been overruled by the Commission? I wasn't able 24 to find that, but maybe you know more than I.
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69 1 they're overruled, but we don't think that they're 2 controlling in this case under these facts.
3 JUDGE SPRITZER: Okay, explain why that's 4 the case.
5 MR. HARRIS: South Carolina and Bell Bend 6 both contemplate that petitioner can supplement their 7 standing in the reply. But in both those cases, the 8 supplementation was in direct relationship to the 9 arguments that were made in the initial pleading. So 10 they were merely expanding on arguments that they had 11 already made.
12 If you go to, I'm sorry, ELI 0819 which is 13 what the staff cited, the Commission has stated that 14 you can't expand an argument or create new arguments 15 in standing in your reply.
16 And we feel that C-10's arguments during 17 the reply arguing for these particular injuries that 18 they had never brought up before, arguing for 19 representational standing based on Ms. Treat's address 20 and Ms. Treat's child, cannot be supplemented into the 21 reply and cannot form the basis of that, and they 22 should be stricken. To know why there's not an injury 23 in fact --
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70 1 location in the reply I think saying she actually 2 lives 3.5 miles from Seabrook. I understand your 3 position about representation withstanding.
4 But that is also potentially relevant to 5 impact to the organization if their executive director 6 has to move out of the area, that could certainly 7 impact the organization. Is that something we can 8 consider in the context of organizational standing, 9 because they certainly raise that in the petition.
10 MR. HARRIS: Well, I don't know that that 11 actually addresses that issue. She did not provide 12 her address. She provided a general location. It is 13 incumbent on the petitioners to provide the very 14 specific details.
15 There is no way for the staff or for 16 NextEra to evaluate that statement for the truth of it 17 to provide any argument that it's not true. It's 18 vague and undefined. So they really have not provided 19 an opportunity for the staff or for NextEra to make an 20 argument that was opposed that particular part.
21 In terms of the organizational standing, 22 while she might need to be evacuated should you have 23 an accident of some kind, I don't believe that that 24 means that she couldn't perform her duties as an 25 executive director.
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71 1 Of course, it could impact their office 2 location. But that doesn't mean that the duties still 3 cannot be performed. This happens to, you know, if 4 you do have the untoward event of an accident and 5 offsite release, people would, you know, would be 6 expected to be evacuated.
7 But that doesn't mean that their job speed 8 -- in this particular case they're performing real-9 time monitoring, education and information. That 10 could continue despite, you know, having to be 11 evacuated.
12 JUDGE MTINGWA: But if there's a 13 catastrophic accident, they could lose their 14 monitoring equipment, they could lose vital records 15 which is probably more important. That could 16 definitely be substantial damage to the operations.
17 MR. HARRIS: I don't believe that I would 18 dispute that the monitoring equipment might be damaged 19 from a catastrophic accident, or that records that 20 have not been backed up could be lost. But that is 21 when you look at the accidents that they've proposed 22 in their reply as the reason why they might be harmed, 23 they assume that of course the ASR is occurring and 24 the concrete is losing its structural capacity.
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72 1 unexpected earthquake. The staff interpreted that to 2 mean an earthquake that Seabrook has not been designed 3 for, so a beyond design basis earthquake. That is 4 simply outside the scope of the license amendment and 5 what Seabrook is required to do.
6 Of course there is an earthquake that we 7 can assume that is large enough that could cause, you 8 know, structural damage. But Seabrook is only 9 required to protect up against the design basis 10 earthquake.
11 JUDGE MTINGWA: No, but I'm thinking in 12 terms of they make the argument that the concrete 13 could turn to mush, and the whole building collapses.
14 And that kind of a catastrophic accident which they do 15 refer to in their original petition, they could, the 16 organization would suffer substantial damages.
17 MR. HARRIS: Right, but the license 18 amendment itself, the requirements for the concrete 19 that has been impacted by ASR are not being changed.
20 So they're going to continue to perform their same 21 intended functions should that concrete at some point 22 exceed its ability to maintain its structure and 23 protect the equipment within, there are limited 24 conditions of operation that would require the plant 25 to shut down before you were allowed to continue to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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73 1 operate with a concrete that was not in compliance 2 with its licensing basis, putting aside the small 3 caveat that right now we consider the concrete to be 4 operable but degraded.
5 So we know it's outside its licensing 6 basis, and this is what this license amendment is 7 attempting to change so that it would come back within 8 its licensing basis. So for example in the 9 containment enclosure building, should you lose its 10 functionality, the plant's required to shut down 11 within 12 or 30 hours3.472222e-4 days <br />0.00833 hours <br />4.960317e-5 weeks <br />1.1415e-5 months <br /> depending on the particular 12 nature of how you lose that function in being cold 13 standby.
14 So you can't assume that the concrete is, 15 that they're operating well outside their license, and 16 then also assume another accident because their 17 license would require them to shut down once they lost 18 that function of the concrete.
19 JUDGE SPRITZER: Let me see if I'm 20 following this. If the license amendment request is 21 denied, they would have, Seabrook Unit 1 would have to 22 shut down, is that right?
23 MR. HARRIS: That is not what I'm saying.
24 What I'm saying, the concrete right now is considered 25 operable but degraded. So that means we see the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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74 1 concrete that's been impacted by ASR to continue to 2 perform its design function.
3 However, it is technically not in 4 compliance with its licensing basis because the ASR is 5 not accounted for in the analysis of record that ACI 6 318. It does not provide for a way to analyze ASR 7 issues. But the concrete itself continues to perform 8 its design basis function.
9 At a point where that concrete no longer 10 could perform that design basis function, and the 11 reason I'm being a little general is that there are a 12 lot of different structures that are impacted and each 13 one has a different, potentially a different function, 14 is those have limiting conditions of operation on 15 them.
16 So if you lost that function for that 17 structure, there are requirements to potentially shut 18 down the plant in hot standby and cold standby within 19 certain time periods. I brought up the containment 20 enclosure building because that's one of those with a 21 limiting condition of operation attached to it.
22 JUDGE SPRITZER: I mean, the petitioner's 23 position, and for standing we're not going to decide 24 the merits, we're simply taking their position. Their 25 position is the concrete's degraded, it's going to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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75 1 continue to degrade and the methodology proposed by 2 NextEra is inadequate to show that that degradation 3 will not progress further or won't create a dangerous 4 situation at the plant.
5 They think there is a risk, in other 6 words. So assuming we have to accept for purposes of 7 standing their allegations, at least certainly where 8 they're supported by an expert's affidavit, to say, 9 you seem to be saying that we should just assume 10 everything's fine, but that's not their position.
11 Don't we have to take their theory of the 12 merits of the case for purposes of standing and say 13 does this show an obvious potential for offsite 14 consequences?
15 MR. HARRIS: So I would not describe it 16 that was is that you can't just take their theory for 17 how the merits might proceed for standing. One, it's 18 incumbent on them to establish their standing and 19 plead it at this stage of the proceeding, and that 20 cannot be based on a mistake of fact, you know, a 21 mistake in terms of how they're analyzing it.
22 Putting aside the merits, and I recognize 23 that this does, it does, you know, there are some 24 overlapping issues with that. But standing needs to 25 be established by them.
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76 1 In this particular case, assuming the 2 license amendment doesn't proceed, this license 3 amendment does not increase the likelihood of an 4 accident. This license amendment is simply, you know, 5 allowing an analysis that had not previously accounted 6 for ASR to, for them to keep that analysis of record 7 can account for the forces ASR would impose on the 8 concrete in terms of its structural capacity.
9 So the concrete is going to perform the 10 same both before and after the license amendment, 11 regardless of the license amendment.
12 JUDGE SPRITZER: Yes, but at least part of 13 their argument is directed at the concrete not being 14 adequate to mitigate the effects of an accident if it 15 were to occur. Isn't that sufficient to establish --
16 MR. HARRIS: That would --
17 JUDGE SPRITZER: Let me finish. Isn't 18 that sufficient to establish an obvious potential for 19 offsite consequences, even if the amendment itself 20 won't increase the likelihood of an accident? But in 21 their view, the amendment is insufficient to ensure 22 that there will be adequate mitigation if an accident 23 were to occur.
24 Isn't that sufficient to demonstrate an 25 obvious potential for offsite consequences?
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77 1 MR. HARRIS: If the license amendment was, 2 they're making a change to the licensing basis that 3 that license amendment somehow made the plant less 4 conservative, making an accident more likely from that 5 license amendment.
6 I believe that I would agree with your 7 statement. But here those issues that they raised 8 weren't raised until the reply. They were never 9 addressed in the initial pleading.
10 And in the reply, they combined the ASR 11 effect with a beyond design basis earthquake. That 12 beyond design basis earthquake is clearly outside the 13 scope of the licensing basis. The structures 14 themselves are designed, you know, right now to deal 15 with the design basis earthquake, and that's why we 16 consider them still operable at this point.
17 This license amendment is not going to 18 change whether or not those structures, the earthquake 19 that they have to withstand or their ability to 20 maintain their structure during that earthquake.
21 JUDGE SPRITZER: All right.
22 JUDGE MTINGWA: But it seems to me the 23 main point they're trying to make is that they don't 24 know where the tipping point is. Right? I mean, you 25 could be very near the tipping point now and not know NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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78 1 it based upon your past experiments.
2 So outside of an earthquake, I mean, there 3 could be a tipping point there. And if there is a 4 catastrophic accident because of that, they would be 5 impacted. I mean, doesn't that give them standing?
6 MR. HARRIS: Well, you can't, you can't 7 assume an earthquake beyond the design basis of the 8 plant. So the concrete itself needs to be able to, 9 you know, perform its function during the design basis 10 earthquake.
11 JUDGE MTINGWA: Right. Just outside of 12 the earthquake. You know, just forget about the 13 earthquake. Suppose just the ASR is putting you now 14 even very close to the tipping point. They're worried 15 that just the ASR outside of any earthquake could lead 16 to a catastrophic accident. And in that case, they 17 would have standing.
18 MR. HARRIS: It needs to be related to the 19 license amendment. And perhaps I'm not quite 20 understanding the question is that the , we think 21 that, I think that that's not quite equivalent 22 analysis is that the ASR is not going to lead to a 23 catastrophic accident. It's going to slowly degrade 24 over time.
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79 1 to monitor that and put in place a method to, you 2 know, calculate the structural capacity of the 3 building so that if we move a little bit from standing 4 into the contention because I don't want, is that that 5 tipping point is a function of the representativeness 6 of the testing that was done.
7 So if that representativeness was 8 appropriately bounding, then the limits that were 9 established by it in terms of the expansion in the 10 concrete, you would not get close to that tipping 11 point. And because of the licensing basis for the 12 plant, you would not expect an accident to cause the 13 plant to fail, those structures to fail to perform 14 their functions.
15 So there's not an obvious potential for 16 offsite consequences there. To get there based on 17 this license amendment, you have to impose, 18 essentially impose an accident of some type, some 19 initiating event that is beyond the design basis of 20 the license of the plant.
21 If that answers all the questions on 22 standings, I'll move on to contentions. The first 23 thing I would like to address is that the staff's 24 answer did not add additional information fact to our 25 arguments why the Board should admit a modified NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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80 1 contention.
2 And while the staff's position in this 3 case is that the petition should be denied for lack of 4 standing, if you read the entire set of ten 5 contentions holistically and understanding that they 6 were written by pro se petitioners and they did not 7 necessarily incorporate portions of the other 8 contentions the way we would expect counsel to by, you 9 know, stating explicitly incorporation by reference, 10 the staff read the pleadings to make several cross 11 references to each other, especially dealing with the 12 representativeness through the other contentions A 13 through C and G through H.
14 The staff maintains however that had just 15 Contention B been pled and none of the other 16 contentions been pled, that Contention B without being 17 added to the portions of A through C, that the staff, 18 you know, suggested should be admitted as an 19 admissible contention and G through H would not form 20 the requisite challenge to the issue that the staff 21 must decide is that representativeness by itself, 22 without applying it and challenging some other aspect 23 of the license amendment, is not material.
24 JUDGE TRIKOUROS: Mr. Harris, does that 25 have to do with the connection to the monitoring NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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81 1 program?
2 MR. HARRIS: It has a connection to the 3 monitoring program. It also has a, you know, 4 connection to the type of inspections that are being 5 done. It could potentially impact the actual 6 acceptance criteria for how much through-wall 7 expansion has occurred.
8 This is because part of what that test, 9 the large scale testing program did was to help try to 10 establish how much expansion occurs through wall prior 11 to the putting in extensometers in it. So that 12 through-wall expansion that occurs prior to the 13 installation of extensometers is unknown.
14 And so we need a way to account for that 15 expansion that occurred prior to being able to monitor 16 the actual expansion.
17 JUDGE TRIKOUROS: All right.
18 MR. HARRIS: Now, sorry, I just got an 19 echo when I was speaking, so maybe it's my issue for 20 the echo. While the staff's requirement of consenting 21 finding parts of the -- if they had actually 22 established -- if C-10 had actually established 23 standing, we think that the portions that they could 24 combine Contention D of any of the admissible portions 25 and Contentions A through C and G through H NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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82 1 individually.
2 So it doesn't require that you actually 3 admit all of A through C or all of G through H to form 4 an admissible contention. However, we think that 5 specifically those particular issues that are worth 6 calling specific attention to is the visual 7 inspections, the crack indexing, the use of 8 extensometers with what we had just talked about, the 9 fact that the through-wall expansion can't be measured 10 until occurs prior to the extensometers being put in 11 place.
12 And then that also impacts as a tipping 13 point where if you're not representative, you know, 14 then it's hard to know how close you might be to the 15 potential edge and that there might need to be more 16 conservatism applied to where we think that the data 17 provides.
18 You had asked us to address what the 19 actual requirements that the staff is going to use to 20 evaluate this particular proceeding. And that is a 21 little bit of a difficult issue. Of course the staff 22 had to make its requisite findings of reasonable 23 assurance of adequate protection, and there are a 24 number of codes that are put into place by the 25 regulations identified in 50.40 and 50.55(a).
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83 1 It would also be looking at what the 2 licensee has done in terms of what they're proposing 3 which deals both with the general design criteria.
4 But part of the staff's difficulty in being able to 5 provide a full and complete answer to this is that the 6 staff is still awaiting some structural calculations 7 of each of the different buildings.
8 And those different buildings have 9 different requirements and different code cases that 10 are applicable to them. And so until the staff has a 11 chance to review those, we would tend to point out to 12 what the NextEra has proposed in its license amendment 13 as a place to start for where the review would be done 14 because the staff hasn't, you know, made up its mind 15 that those particular ones that have been proposed are 16 necessarily correct because the ones that are finally 17 settled on or that there might be something else that 18 comes up as a result of the additional calculations 19 that we receive.
20 JUDGE TRIKOUROS: But those calculations 21 are assuming the ASR loads in the LAR?
22 MR. HARRIS: Yes, those calculations are 23 assuming that what they've done so far can be 24 translated into their code cases as a result of the 25 representativeness. I probably defer somewhat to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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84 1 NextEra to say exactly how those are being done 2 because we haven't seen them yet, or I don't think 3 we've seen very many of them yet.
4 JUDGE SPRITZER: On the question of the 5 regulations you would apply, if you had your answer to 6 the petition at the top of Page 47.
7 MR. HARRIS: I do, Your Honor.
8 JUDGE SPRITZER: I would assume you stand 9 behind this as an adequate, well at least as 10 representing the basic standards that the staff has to 11 apply. I guess you might call them the overarching 12 standards the staff has to apply in evaluating the 13 license amendment.
14 MR. HARRIS: That's correct is that of 15 course we had to make our finding and that we would 16 apply the same standards for the license amendment 17 that you would apply to an original licensing, you 18 know, as applicable.
19 So in this case you would be looking at 20 the code cases for concrete structures. You would 21 also be looking at, you know, potentially general 22 design criteria. But different structures have 23 different requirements.
24 So it's when you look at the number of 25 structures that are potentially implicated in the ASR NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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85 1 issue, there are about 20-something different, 26 2 different structures that are implicated, and they all 3 have different requirements.
4 JUDGE SPRITZER: Let me ask to you to 5 address the third of our questions on contention and 6 admissibility which relates to the representative in 7 this issue and your claim that that's not material to 8 the findings the staff has to make.
9 MR. HARRIS: So representativeness by 10 itself is simply saying that what was done at the 11 University of Texas, without tying that explicitly to 12 the other portions of the license amendment, would not 13 be material because they could have done that analysis 14 in a number of different ways that would have, that 15 potentially could be acceptable.
16 So you could have done it in a very, very 17 conservative way. It would not necessarily be 18 representative of the Seabrook but be done so 19 conservatively that the data it produces would be 20 potentially acceptable.
21 So it really requires doing more than 22 that. The reason why we said D was not admissible by 23 itself was we were trying to provide sort of a full 24 and complete answer of looking at what was just within 25 the four corners of what they pled without looking NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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86 1 outside of that through that intertwining of 2 representative that shows up in the other contentions 3 because it was not done the way we would expect 4 counsel to do it, incorporating by reference.
5 But when you looked at it as a whole, all 6 those contentions, it appears to us that C-10 was 7 trying to incorporate representativeness into other 8 contentions or those other contentions into D. So we 9 think that it should be admitted as that, not purely 10 as an issue of how representative it is. Once you --
11 JUDGE SPRITZER: If I understand what 12 you're saying, if they had incorporated the other 13 contentions by reference in contention D, then D 14 itself would have been admissible?
15 MR. HARRIS: It's close. What I was 16 saying is that if you look at the way counsel, if 17 they've been representative by counsel, counsel would 18 have done that, would have made specific 19 incorporation, you know, or we would have expected a 20 party represented by counsel to have specifically said 21 I'm incorporating these particular issues into this 22 contention.
23 But when you look at that 24 representativeness, you can find references to that 25 same representativeness in contentions A, B, C, D, and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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87 1 H where they're sort of tied together.
2 And so we think that they were attempting 3 to incorporate by reference, and that's why the staff 4 rewrote the contention to put all those parts that the 5 staff interpreted as being related together.
6 JUDGE SPRITZER: If the petitioners had 7 simply filed one contention with all their different 8 arguments as sub-parts of that contention, obviously 9 there would be some of those sub-parts you think are 10 inadmissible. But we wouldn't have this problem.
11 We could just say we're going to admit the 12 one contention narrowed down to the specific issues 13 that are admissible in this one hypothetical mega-14 contention. Is that a fair --
15 MR. HARRIS: That's essentially the 16 staff's position.
17 JUDGE SPRITZER: So basically it goes to 18 the form of their pleading, and you're satisfied that 19 at least for a pro se petitioner we can overlook the 20 defects in the form and admit the modified or 21 reformulated contention you proposed?
22 MR. HARRIS: That's correct, Your Honor.
23 And putting aside whether or not standing was 24 established, so we're not waiving our standing 25 arguments by --
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88 1 (Simultaneous speaking.)
2 JUDGE SPRITZER: I understand.
3 MR. HARRIS: -- the contention could, you 4 know, can be admitted in a limited form.
5 JUDGE SPRITZER: All right.
6 JUDGE MTINGWA: I have a question about 7 that. You don't think that they have standing. So 8 you would like the petition to be denied, is that 9 correct, on the basis of lack of standing?
10 MR. HARRIS: Yes. The staff believes that 11 the petition should be denied for lack of standing.
12 JUDGE MTINGWA: So why go through the 13 trouble of trying to help them with the admissibility?
14 MR. HARRIS: Well, the staff's obligation 15 is to, you know, both protect, to represent the staff 16 itself and to try to protect the procedures that are 17 in place here. So we evaluated, we're providing both 18 our answer on standing, we don't think that they met 19 standing.
20 But should the board, you know, decide 21 that the staff is incorrect on standing, we think that 22 the petition should be admitted in a limited form. So 23 it is trying to, you know, represent what we believe 24 the rules that have been established for these 25 proceedings and where the staff believes how those NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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89 1 rules should be interpreted in this particular case.
2 We would not want to simply argue that you 3 shouldn't, you know, we wouldn't normally rest on just 4 they don't have standing and then not address the 5 contentions themselves. You know, it's possible that 6 the Board would disagree with our argument on 7 standing.
8 But we would not necessarily believe that 9 the Board should admit issues related to the tone or 10 the proprietary nature or the impact of rebar which is 11 really, rebar corrosion which is really outside the 12 scope of this license amendment proceeding.
13 So we had an obligation to point those 14 issues out where we didn't think that they actually 15 were admissible.
16 JUDGE MTINGWA: But I guess apparently 17 isn't done so often based upon some of the arguments 18 I've seen in the documents. It's rather rare for you 19 to do that. In fact, I think C-10 argued that this is 20 the first time in one of this type of hearings in Part 21 50, number 50 hearing that you've done that.
22 MR. HARRIS: I believe, yes, NextEra said 23 that staff has not done that. I've personally been 24 involved in part two proceedings, three proceedings 25 before the Board where the staff had reformulated NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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90 1 contentions to try to identify the issues that are 2 material for the Board to decide as a result of a 3 proceeding that was ongoing.
4 My most recent experience, you know, 5 experience with that was of course was in Davis-Besse 6 where the staff initially proposed that part of a 7 contention was admissible and reformulated it. By the 8 time the board actually had an opportunity to rule on 9 that contention, that issue had been resolved, and the 10 staff's position at that ultimate argument was that it 11 was no longer admissible because the issue had become 12 moot.
13 JUDGE TRIKOUROS: In your reformulated 14 contention, you include Contention G.
15 MR. HARRIS: That's correct. That's the, 16 I believe it's the intervals for the inspection. And 17 this is --
18 (Simultaneous speaking.)
19 JUDGE TRIKOUROS: No, actually Contention 20 G is this tipping point issue that was brought up 21 earlier and for which there was very strong, there 22 were very strong answers against the admissibility in 23 Contention G. Yet you included Contention G in your 24 reformulated contention that I don't quite understand 25 why.
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91 1 MR. HARRIS: So if you give me one second, 2 Your Honor. Let me, I'm just going to put you on mute 3 for just a second, Your Honor.
4 JUDGE TRIKOUROS: Very well.
5 MR. HARRIS: I am back, Your Honor. The 6 tipping point issue we think is slightly related, and 7 it's related to how that representativeness is 8 eventually determined. So if when you look at what 9 the license amendment proposes, it has limits that 10 you're not supposed to exceed.
11 I believe it's 0.1 percent of through-wall 12 expansion and then you would be outside those limits.
13 But if you're not exactly sure how representative your 14 testing is to base that limit on, then you need to 15 evaluate whether or not there's sufficient margin at 16 that point.
17 You know, so if the large test scale, or 18 the large scale testing program had sufficient 19 conservatism, then that issue may be resolved by the 20 resolution of the representativeness of the testing 21 program.
22 But the closer you get to it, the more you 23 need to look at where those margins are and how close 24 to failure you might be. We think it's barely in 25 there. We're not taking a position that it would be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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92 1 ultimately successful, but we think that under the 2 bare minimum of establishing an admissible contention, 3 that there is just enough there.
4 JUDGE SPRITZER: If we disagreed and found 5 G completely inadmissible, and eliminated it from the 6 reformulated contention, would the reformulated 7 contention still be admissible with the other parts 8 but without Contention G?
9 MR. HARRIS: That is correct, Your Honor.
10 The staff believes that you could combine the 11 representatives with each of the other parts 12 individually. So you wouldn't have defined that the 13 parts in A, B, E, G, and H were admissible, but you 14 could look at each one of them individually and it 15 would form an admissible contention.
16 JUDGE SPRITZER: I take it your basic 17 point is there has to be something to tie the 18 representativeness issue to something more specific 19 determination the staff has to make like what's 20 appropriate monitoring or what's an appropriate 21 interval for monitoring.
22 MR. HARRIS: And that's correct. And you 23 know, just to address one issue I believe NextEra 24 raised, the staff's not trying to use this proceeding 25 to review the license amendment. The staff will NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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93 1 continue its review in the normal process through 2 RAIs. So this is not a staff trying to, you know, to 3 basically review a license amendment through a 4 proceeding.
5 I believe that I've covered most all the 6 questions that the Board has proposed. There is the 7 issue about what would the staff, satisfy the staff 8 regarding the limits to the long, large scale test 9 program.
10 And at this point we're not sure. That's 11 part of our review. So I would not want to get out 12 ahead of establishing what those limits should be that 13 would be satisfactory. I think that would be pre-14 judging the technical staff's opportunity to finish 15 their review.
16 JUDGE MTINGWA: But you've made several 17 comments that the large scale test program results 18 bound the Seabrook Unit 1 reactor. So why do you, how 19 do you make that statement if you're not --
20 (Simultaneous speaking.)
21 MR. HARRIS: -- statement to say bound the 22 reactor. What I was saying is that's an issue that, 23 you know, should you, if you admit the contention and 24 had a proceeding that the issue of whether or not the 25 test program is bounding may resolve many of the other NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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94 1 underlying issues by that finding.
2 It's not for the staff to dictate how a 3 licensee proposes to meet its licensing basis or how 4 a particular license amendment is to go forward. The 5 staff reviews what the licensee's propose and 6 evaluates it for its adequacy in light of the 7 regulations and the licensing basis that currently 8 exists.
9 So for example, and this is merely 10 hypothetically, a licensee could do analysis in its 11 experimental program that was absolutely 12 representative of the Seabrook concrete, but how that 13 was translated into acceptance criteria and limits may 14 be, in the staff's opinion, inadequate.
15 Or it could be completely adequate how 16 they've done it. They could choose to do a very 17 conservative bounding type analysis that produces, you 18 know, good results. But it's not for the staff to 19 tell the licensee that they should do this extremely 20 conservatively for their experimental work that they 21 did in their technical analysis to develop the license 22 amendment.
23 We simply review what they submitted and 24 determine whether or not it meets the current 25 regulations and the licensing requirements.
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95 1 JUDGE TRIKOUROS: And back again to the 2 tipping point, you indicated you were looking to 3 understand margin to the in plane expansion limits 4 that are established in the LAR, but wouldn't you 5 really look for margin there by seeing how much you 6 would have to increase the in plane expansion limits 7 to actually reach the point where you can't meet your 8 design basis requirements, not whether or not the 9 containment would have some sort of a failure under 10 some assumed pressure condition.
11 I just, it seems to me you could do all 12 that by analysis. If I were doing it, I would 13 increase the in plane expansion limits until I could 14 no longer reach my acceptance criterion for my design 15 basis acceptance right there.
16 MR. HARRIS: I would be remiss to, you 17 know, second judge your engineering. But the, I think 18 what I would say is that there are a lot of different 19 ways you could try to account for that uncertainty, 20 you know, in terms of the data you produced and where 21 you're going to deal with that both the -- yes the 22 uncertainty associated with the type of analyses you 23 did and simply the uncertainty associated with the 24 model that we're using.
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96 1 that limit of 0.1 percent expansion, some of that, 2 part of that is that the combination of the 3 extensometer that they measure the expansion after 4 they put it in plus what they've done to correlate I 5 believe crack width indexing to the through-wall 6 expansion that occurred before then, there is an 7 amount of uncertainty there that you want to make sure 8 that your limit for where this license amendment would 9 no longer apply is appropriately conservative so that 10 you could have more through-wall expansion than your 11 program measured because of that uncertainty.
12 And so you could exceed that 0.1 percent 13 as a result of the uncertainty.
14 JUDGE TRIKOUROS: Right. And all of that 15 can be accomplished without Contention G.
16 MR. HARRIS: That's correct, I believe.
17 But I believe that Contention G itself does address a 18 small portion of it. Like I said, that is barely 19 there, but we think that there was sufficient to make 20 it admissible.
21 JUDGE TRIKOUROS: Okay, that's fine. We 22 don't need to go further.
23 JUDGE SPRITZER: All right, Mr. Harris, 24 thank you. I think we can, if everybody's prepared to 25 go on and hear from NextEra, we can do that so we can NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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97 1 hopefully finish by 1 o'clock or at least close to 1 2 o'clock. Does anyone have a problem with that before 3 we hear from NextEra?
4 (No audible response.)
5 JUDGE SPRITZER: Okay, hearing no 6 objection, Mr. Lighty?
7 MR. LIGHTY: Thank you, Your Honor. And 8 may it please the Board, Ryan Lighty for the 9 Applicant. On behalf of NextEra, I appreciate the 10 opportunity to appear before you this afternoon.
11 And as explained in our pleadings and as 12 we will further explain today, we believe the Board 13 should deny the petition in its entirety. And without 14 rehashing the briefings, and before turning to the 15 Board's specific questions, I would like to emphasize 16 just a few overarching points and respond to a couple 17 of comments made earlier today.
18 First, C-10 fundamentally misunderstands 19 and therefore fails to effectively challenge the LAR.
20 The petition doesn't appear to recognize that NextEra 21 is performing mechanical property testings, or to 22 correctly comprehend how the test results or the LSTP 23 data are actually applied here.
24 And this lack of understanding should at 25 least raise some red flags for the Board as to C-10's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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98 1 ability to demonstrate a genuine dispute with the 2 application because as the Commission has explained, 3 a petitioner's misreading of an application is not a 4 basis for an admissible contention.
5 Second, as recognized in the Board's 6 contention question number five, the petitioner did 7 not identify any findings the staff must make to grant 8 the LAR much less demonstrate that any of its 9 contentions are material to evaluating satisfaction of 10 those unspecified standards.
11 So the fact that the Board even had to ask 12 this question demonstrates somewhat that C-10 did not 13 demonstrate materiality in their petition.
14 Turning to just a couple of comments made 15 earlier today, first by C-10. Mr. Nord stated that 16 the burden was not on C-10 to show that 17 representativeness is germane to the proceeding, and 18 that's simply an inaccurate statement of the 19 contention admissibility requirements.
20 In 2.309(f)(1), the requirement is on the 21 petitioners to demonstrate each element of an 22 admissible contention. Turning also to Judge 23 Spritzer's question about reaching the table four 24 limits, we do believe that if you were beyond those 25 limits it would be outside the CLB and you would need NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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99 1 to reevaluate.
2 But we certainly don't think that the 3 petition offered any explanation as to how that would 4 be material to the LAR that is being currently 5 evaluated. So we'll turn now to the specific 6 questions that were presented by the Board.
7 First on standing, the Board asked how an 8 organization with an office within ten miles of the 9 plant could be found to not have standing under the 10 NRC's proximity presumption. And the brief answer is 11 by not pleading it.
12 The petition doesn't plead standing, it 13 doesn't acknowledge a standing requirement, it doesn't 14 reference any legal standard applicable to the 15 incident proceeding, or plead facts to demonstrate 16 satisfaction of some unspecified standard.
17 And this places the Board and the parties 18 in the position of applying the potentially applicable 19 standards and then combing through the pleadings in 20 search of arguments in satisfaction of those standards 21 that were never advanced by petitioners themselves.
22 But the Commission has explained in the USEC case, 23 CLI-06-10, that it's not our burden to do so.
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100 1 here, and C-10's petition also is silent as to the 2 standard. So the bottom line is this is a pleading 3 deficiency. Commission regulations require a petition 4 to plead standing, and C-10 did not.
5 So turning to the Board's question number 6 three on standing about the Commission decisions that 7 purportedly allow new information and arguments in 8 reply pleadings, we agree with the staff that these 9 cases are distinguishable.
10 As the Commission explained in the 11 Palisades case, CLI-08-19, there's a difference 12 between an omission that's merely a matter of failing 13 to cross a t or dot an i in their words, versus 14 failing to plead, "an essential ingredient of 15 standing." And C-10's reply attempts the latter.
16 In the Summer case there are the reply 17 required a minor change from pleading membership in an 18 organization to pleading authorization for that 19 organization. The changes that C-10 offers in its 20 reply are much more substantial.
21 And there were other distinctions in the 22 Summer case. There the petitioners, "demonstrated 23 standing in every other respect." That's not the case 24 here. Petitioners there pled an inadvertent omission, 25 also not the case here. So we think that these cases NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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101 1 are distinguishable.
2 MR. LIGHTY: As far as the proximity 3 presumption goes, their petition, while it doesn't 4 have a section labeled standing, or equivalent 5 language, it gives their address, it provides 6 information about what they do in proximity to the 7 Seabrook Plant, and certainly the contentions 8 themselves lay out what at least in their opinion is 9 a potential for offsite consequences.
10 Why does it matter, if the facts are there 11 or the elements of standing are there, that they 12 didn't have a specific argument labeled standing for 13 us to find that they've met the requirements?
14 MR. LIGHTY: Well, because we believe it 15 is a requirement that if they plead that, that offsite 16 consequence, not just a matter of discussing issues 17 somewhere else in the petition that the Board or other 18 parties may somehow be able to stitch together to 19 construe that argument.
20 But they simply didn't plead that that was 21 the case, that the arguments they were advancing 22 evidence and obvious potential for offsite 23 consequences. So --
24 JUDGE SPRITZER: Have you cited in your 25 pleadings a case that will apply this rather, this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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102 1 standard that you are arguing for to a pro se 2 petitioner? Certainly there are cases which expect a 3 fair amount from somebody represented by counsel. But 4 what about pro se petitioners, aren't they entitled to 5 some leeway as far as technical pleading requirements?
6 MR. LIGHTY: Your Honor, I don't recall 7 specifically whether we pled it in our answer pleading 8 or that we cited a case to that effect. I know that 9 we certainly cited the Board, or I'm sorry, the 10 Commission's Fermi decision that talked about applying 11 requirements strictly to pro se petitioners.
12 JUDGE SPRITZER: All right, thank you.
13 MR. LIGHTY: And so briefly, just a bottom 14 line on the cases cited in the Board's standing 15 question three. One word changes and minor 16 supplemental details are permissible in replying. But 17 offering new, a new particularly vivid scenario to use 18 C-10's words is something far different.
19 Turning now to the contention questions, 20 questions one and two asks for an explanation as to 21 how and whether the LSCP results found the Seabrook's 22 concrete expansion. And just as an initial matter, we 23 would observe that these questions, if material, would 24 go to the merits of the application and not 25 necessarily to contention admissibility.
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103 1 But to answer this question, we would 2 point to the LAR evaluation discussion at Section 3 3.2.1 where a program confirmed that the specimens 4 experience ASR distress that was more severe than 5 Seabrook. And then the LAR also includes confirmatory 6 analyses for the similarity of the expansion behavior 7 between the LSCP specimens and Seabrook, and that 8 discussion at MPR 4273 at Page VII and Section 6.1.5.
9 Now you would also --
10 JUDGE SPRITZER: If I may interrupt just 11 briefly. The fact, what's your position on the 12 staff's argument that bounding or representativeness 13 by itself is not a material issue? Given that it's 14 discussed in the LAR, doesn't that suggest that 15 whoever prepared the LAR thought it was at least 16 relevant to evaluating whether the license amendment 17 should be granted?
18 MR. LIGHTY: Well, I think first I would 19 point out that there's a difference between something 20 that's representative and something that's bounding.
21 Those are separate concepts. And in fact there's a 22 tension that's discussed in the LAR between these two 23 concepts.
24 Next there are notes that, you know, this 25 difference is significant. If you look at Section NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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104 1 2.4.2 of MPR 4273, there's something of an inverse 2 relationship here. The test designers note that the 3 Seabrook concrete would have been the most 4 representative data source, but would not have 5 provided bounding data because it would merely be a 6 snapshot of existing levels of ASR.
7 Whereas on the other hand the LSTP 8 concrete, the less representative could provide data 9 for more extreme levels of ASR. So these concepts are 10 certainly not one in the same, and in fact there's a 11 tension between them that's discussed and resolved in 12 the LAR that C-10 does not seem to acknowledge or 13 attack that discussion in Section 2.4.2.
14 And so, you know, we again note that the 15 petition does not contain the word bound. This topic 16 was raised for the first time by staff, and appears to 17 conflate these two concepts which have a material 18 difference in the application.
19 And so to the question, to the extent the 20 question considers C-10's representativeness argument, 21 we would again note that C-10 entirely disregarded 22 rather than disputed that discussion in MPR 4273.
23 They didn't acknowledge it, reference it, 24 point to specific assertions within it to offer a 25 meaningful challenge. But as the Commission explained NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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105 1 in the Millstone case, CLI-01-24, the petitioner is 2 required to read the pertinent portions of the 3 application, state the applicant's position and the 4 petitioner's opposing view, and it has not done so 5 here.
6 So it's not possible to raise a genuine 7 dispute on representativeness while at the same time 8 ignoring the very section of the application that 9 discusses that topic.
10 One of the Board's questions was what 11 would satisfy questions on this topic. And I would 12 just briefly note that they reference the standards in 13 the code 349.3(r). And we would just note that this 14 is the subject of their petition for rulemaking that 15 is still pending here.
16 So C-10 acknowledges this is not currently 17 a requirement that's applicable to reactor licensees.
18 And in fact, the imposition of the standard is the 19 subject of a petition rulemaking which makes it 20 outside the scope of this proceeding.
21 JUDGE SPRITZER: You said they had filed 22 a two, a petition under 2.206, did I understand you 23 correctly?
24 MR. LIGHTY: No, I believe it's 2.208 25 which is -- 802, apologies. Petition for rulemaking.
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106 1 JUDGE SPRITZER: And that petition 2 requests what?
3 MR. LIGHTY: It requests imposition of 4 this code standard for reactor licensees to use that 5 standard to conduct the tests, the tests that they've 6 noted would need to be done to satisfy their request 7 here.
8 JUDGE SPRITZER: Do you know what the 9 status of that petition for rulemaking is?
10 MR. LIGHTY: I believe it is still pending 11 before the staff, Your Honor.
12 MR. HARRIS: Your Honor, this is Brian 13 Harris for the staff. It is still pending before the 14 staff at this time.
15 JUDGE SPRITZER: Okay. I assume in at 16 least one of your briefs there's some citation to this 17 where we could see what the petition includes?
18 MR. LIGHTY: Yes, Your Honor, it was 19 included in our answer pleading.
20 JUDGE SPRITZER: Okay.
21 MR. LIGHTY: So to return to the Board's 22 questions on contentions, question three the Board 23 asks about using LSTP results to calibrate code 24 equations versus just assuming test samples are 25 representative.
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107 1 And NextEra here notes that the difference 2 lies in the fact that the codes entail embedded 3 margins of safety. And this is a key feature of 4 NextEra's approach, an important driver in their 5 decision to continue using the existing codes because 6 by maintaining the existing code, you maintain its 7 margin of safety, the code accounts for a range of 8 different specimens and concretes, and these ranges 9 are leveraged by using the code.
10 And so the LAR methodology, it also uses 11 mechanical property testing of Seabrook's concrete.
12 And at bottom here, the petitioner does not appear to 13 recognize that either of those is used. And that 14 fundamental misunderstanding of the LAR evidences the 15 lack of a genuine dispute with the actual methodology 16 that's being proposed in the LAR.
17 JUDGE TRIKOUROS: Let me interrupt you one 18 second. There does seem to be some confusion 19 regarding future testing of Seabrook concrete.
20 The LAR does seem to imply that there will 21 be core holes obtained throughout, you know, the 22 future monitoring period, and that testing will be 23 done on those, then elaborate on how frequently that 24 would be done or what specific tests would be done.
25 Can you say something about that?
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108 1 MR. LIGHTY: Certainly, Your Honor. I 2 would talk about a couple of different things here.
3 First, for the tier three locations, the locations 4 that are affected by ASR that meet the tier three 5 monitoring criteria, there are four samples removed.
6 And mechanical property testing is 7 completed on those samples as part of the program that 8 is proposed here. And in fact the MPR document 9 contains the results of the first set of those tests.
10 So that's one area where it is included.
11 The other is the confirmatory testing that 12 would confirm the expansion behavior at Seabrook is 13 similar to the expansion behavior in the LSTP test 14 specimens. And that's covered in MPR 4273 at Pages 15 VII.
16 There's a chart of the different tests, 17 the different periodicity of those tests, the 18 approaches for those tests. And Section 6.1.5 of that 19 document also discusses those confirmatory analyses.
20 So it's not a matter of just assuming the expansion 21 behavior is similar. There's confirmatory testing in 22 this program.
23 JUDGE TRIKOUROS: All right, thank you.
24 JUDGE MTINGWA: How does the size of the 25 core samples that you extract in comparison to the LS, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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109 1 the large scale test program samples?
2 MR. LIGHTY: Just to clarify, is this for 3 the samples removed from the extensometer location?
4 JUDGE MTINGWA: Yes, yes. When you 5 extract those samples, what size is that relative to 6 the size for the large scale test program?
7 MR. LIGHTY: If you give me just a moment 8 to confer with my team, Your Honor, I'll see if I can 9 find the answer to that.
10 Okay, thank you, Your Honor, for that 11 opportunity to confer. It's my understanding that the 12 core samples that are removed, the size of what is 13 actually being tested is a cylinder that is four 14 inches in diameter and eight inches long. And that's 15 the test sample. What's removed is slightly larger, 16 but that's the size of the sample that's actually 17 tested.
18 And that size corresponds to the testing 19 that was done for the correlation calculation in MPR 20 4153.
21 JUDGE MTINGWA: Okay, thank you, thank 22 you. Let me ask another question. Is the concrete in 23 Unit 1 and that in Unit 2, are they the same?
24 MR. LIGHTY: They are generally the same.
25 JUDGE MTINGWA: No, I mean specifically NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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110 1 the same. Are they precisely the same concrete?
2 MR. LIGHTY: They are the same 3 specifications and the same original materials.
4 JUDGE MTINGWA: Okay.
5 MR. LIGHTY: I would --
6 (Simultaneous speaking.)
7 JUDGE MTINGWA: And is the -- go ahead, 8 I'm sorry.
9 MR. LIGHTY: That certainly there are 10 differences between the concrete at an operating 11 reactor versus --
12 JUDGE MTINGWA: No, I know. But I'm just 13 worried about the starting point of both because there 14 was a question as to whether or not you could glean 15 information about Unit 1 by taking samples from Unit 16 2. So I just wanted to know at least concrete, you 17 know, the same, is it the same by design?
18 MR. LIGHTY: Yes. I think they started 19 out with the same materials and --
20 JUDGE MTINGWA: Okay. And what about the 21 thickness of the wall, the through thickness, is that 22 the same for the two as they started out at 23 construction?
24 MR. LIGHTY: I believe they would have 25 been the same.
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111 1 JUDGE MTINGWA: Okay. So the reason I'm 2 asking that is that the methodology that you used to 3 determine the through thickness expansion, you know, 4 you used the LSTP results to be able to calculate 5 using the elastic modulus what the starting point 6 thickness was.
7 It would be interesting if you used that 8 same methodology on the Unit 2 to see if you get the 9 same thickness at the beginning. That could be sort 10 of a check on the methodology. Is that something that 11 you are considering?
12 MR. LIGHTY: It's beyond my knowledge at 13 this point. I think that in the documents that were 14 submitted with the LAR, the test designers considered 15 the possibility of using the Unit 2 concrete. And the 16 analysis there was that it would have some of the 17 downside as harvesting the Unit 1 concrete in that 18 once you cut it out, you lose the structural context.
19 And so that was something that was 20 considered. The analysis is in the LAR documents, and 21 that analysis was not challenged by C-10. It wasn't 22 referenced or challenged.
23 JUDGE MTINGWA: Okay. Can you think of 24 another method of getting the through thickness 25 expansion? I mean, there's a lot of work on this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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112 1 particular method, but are there other methods that 2 you could use, because there always good, you know, as 3 a scientist myself, to have more than one way to get 4 at the same result. So are you considering other ways 5 of getting it besides this normalized elastic modulus 6 approach?
7 MR. LIGHTY: I can't speak specifically to 8 that. I just have the limited understanding of a 9 lawyer, so I'm not certain on that. But you know, 10 again, I don't believe that's what has been proposed 11 in the LAR.
12 So in other words, the fact that there may 13 be other ways of doing what the LAR proposes to do 14 isn't exactly the same as showing that there's some 15 type of a deficiency in the methodology that is 16 proposed because that's what the staff's being asked 17 to evaluate here.
18 So turning to the Board's Question 7, 19 we're going to ask NextEra to explain why C-10's 20 statement that it plans to discontinue core sample 21 testing, or attempting to avoid such testing is 22 incorrect.
23 We again point to the testing that has 24 been done and documented in MPR 4153 at Page 5.1, the 25 results in Appendix D. So there is core sample NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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113 1 testing that is going on here, as we discussed 2 earlier.
3 And the bottom line again is that the C-10 4 does not seem to acknowledge that this testing is 5 being performed much less understand or dispute how it 6 is being used.
7 JUDGE SPRITZER: Quick question, quick 8 housekeeping question. I think the document you just 9 cited was MPR 4153?
10 MR. LIGHTY: That's correct, Your Honor, 11 4153.
12 JUDGE SPRITZER: All right, is that, it 13 doesn't seem to be on the list of enclosures with the 14 LAR. Or if it is, I'm missing it.
15 MR. LIGHTY: It was included with the LAR 16 supplement.
17 JUDGE SPRITZER: Oh, okay. All right, I'm 18 sorry. Go ahead.
19 MR. LIGHTY: Turning to the Board's 20 question eight, asking NextEra to explain its reasons 21 for arguing that Contention D is devoid of support, 22 given specific reasons that were apparently 23 articulated by C-10.
24 Just to be clear, NextEra was referring 25 specifically to the standard in 2.309(f)(1)(v)
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114 1 requiring petitioners to provide a concise statement 2 of the alleged facts, expert opinions, specific 3 sources, and documents that support the petitioner's 4 position.
5 And aside from quoting some limited 6 portions of the LAR and its attachments, C-10 merely 7 offers a quote from a NUREG document that it does not 8 explain, and a letter arguing that ASR progression is 9 non-linear without explaining how non-linear 10 progression is related to representativeness.
11 And as the Commission explained in the 12 USEC case, CLI-06-10, references to documents without 13 explanation or analysis as to their relevance does not 14 provide an adequate basis for admitting a contention.
15 Now we went through Contention D and noted 16 that the petition offers six general assertions or 17 conclusions here. And we will walk through and 18 explain that none of these are supported as required 19 by the regulations.
20 First, the general assertion that LSTP 21 data stream in all likelihood misrepresents the 22 progression of ASR. One can only wonder whether the 23 LSTP result has any relevance to Seabrook. There's 24 simply no support to the idea that one can only wonder 25 because to the contrary, one can do more than wonder.
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115 1 One can perform confirmatory testing exactly as 2 discussed in MPR 4273 Section 6.1.5 and Page VII.
3 This testing includes the very definitive 4 analytical parameters. But C-10 doesn't acknowledge 5 or challenge any of this discussion in the 6 application. So that's an unsupported assertion.
7 Number two, the assertion that ASR is non-8 linear. Here C-10 at least cites the documents, 9 although it's an advocacy letter of its own creation.
10 Still, the quote does not discuss the topic of 11 representativeness, and it doesn't opine on the LSTP 12 which it pre-dates by a number of years.
13 And in any event, NextEra doesn't dispute 14 that ASR is non-linear. Petitioner simply doesn't 15 explain how this purportedly supports a 16 representativeness contention. And the quote 17 ultimately calls for mechanical testing of extracted 18 cores to establish compressive strength and modulus, 19 and the LAR does both of those things.
20 Number three, that the use of wetted 21 absorbent fabric, "strains credulity." There's no 22 support, expert opinion, or explanation that 23 accompanies this statement. I know there's an entire 24 discussion in MPR 4273 explaining the purpose of that 25 method, explaining the confirmatory analyses that were NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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116 1 conducted to ensure that it satisfies that purpose, 2 the conclusion that it did satisfy that purpose.
3 But petitioner doesn't challenge any of 4 that discussion. They simply ignore it and offer 5 their conclusion.
6 Number four, the assertion that there are, 7 "far too many variables" for any test program to ever 8 be representative of Seabrook. That broad statement 9 also is not paired with any authority to back up the 10 claim.
11 Number five, that the effect of radiation 12 on ASR is, "notable." Here C-10 does quote a NUREG 13 document, but they don't offer any explanation for how 14 it might be relevant to the LAR, or much less to 15 contention D. Again, references to documents without 16 explanation of analysis of their relevance is 17 inadequate as a matter of law.
18 And number six, the assertion that no 19 rationale has been given for not load testing the as-20 built structure at Seabrook. Again, petitioner offers 21 no support for this assertion, and it's not true 22 anyway. MPR 4273's test design justification 23 discussion covers this very topic.
24 Note discussing the comparison of 25 harvested specimens versus fabricated ones and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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117 1 discussing the consideration of Unit two concrete.
2 But petitioner neither acknowledges nor attacks this 3 very discussion.
4 So the bottom line being Contention D does 5 not reference specific sources or documents or offer 6 reasons, explanations, or analyses to support its 7 supposed specific reasons. These are merely 8 conclusory assertions which are insufficient for an 9 admissible contention.
10 And finally, the Board's questions nine 11 and ten about the staff's proposed reformulation. We 12 again go back to the Fermi case, CLI-15-18, explaining 13 that reformulation authority essentially comes in two 14 varieties, trimming and grouping.
15 Trimming inadmissible content from an 16 otherwise admissible contention and grouping similar 17 otherwise admissible contentions,. And we note that 18 those involve otherwise admissible, fully formed 19 contention.
20 A board may not however add content to an 21 inadmissible contention in order to make it 22 admissible. It's an important distinction here, yet 23 that's exactly what staff promise to do.
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118 1 admissible." Staff then proposes to cobble together 2 portions of inadmissible contentions and then declare, 3 in the words of Mary Shelley, "It's alive."
4 But it cites no authority for this 5 Frankenstein theory of reformulation. It cited 6 several cases on reformulation authority in its third 7 reply, and notably none of them attempted this 8 Frankenstein approach.
9 And controlling case law, in any event, 10 says it's not permissible. The Board's reformulation 11 authority is limited to trimming or grouping otherwise 12 admissible contentions, which is not the case here.
13 Now earlier, staff noted with regard to 14 contention --
15 JUDGE SPRITZER: If that's the case, then 16 you could never take contentions, according to you, if 17 contentions all have to be independently admissible in 18 order to be grouped together, the Board's 19 reformulation authority doesn't really add anything, 20 does it?
21 It first has to find every contention to 22 be admissible, and only then can group them together 23 presumably for purposes of efficiency. But it can't 24 ever take two contentions, each of which might be 25 missing some element that's necessary, and put them NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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119 1 together which to my mind if that's the case there 2 really is no reformulation authority at all.
3 MR. LIGHTY: I would respectfully 4 disagree, Your Honor. The different is inserting 5 content into a contention in order to make it 6 admissible.
7 JUDGE SPRITZER: Well, the staff --
8 (Simultaneous speaking.)
9 MR. LIGHTY: In all of the examples --
10 JUDGE SPRITZER: The staff says they're 11 not doing that. They haven't found any new evidence 12 outside of what's been supplied by C-10. They're 13 mainly concerned with putting the contentions together 14 so that they provide one contention that satisfies 15 their definition of materiality.
16 MR. LIGHTY: Yes, Your Honor. And I think 17 that's an important point because in this Fermi case, 18 CLI-15-18, this was what the Commission considered.
19 There was no nexus pled between two concepts that were 20 otherwise in the same petition.
21 And the Commission said inserting that 22 nexus that the petitioner did not plead was 23 impermissible. And so it's the nexus, it's inserting 24 that connection between concepts where the petitioner 25 itself did not plead the connections, that is beyond NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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120 1 the scope of reformulation authority.
2 And that's also why we don't think this is 3 a matter of form over substance. This is not just the 4 matter of a form of the pleading and an argument that 5 the counsel would have incorporated other contentions.
6 This is material content, pleading connections between 7 concepts that the petitioner did not include in its 8 petition.
9 And that itself is beyond the scope of 10 reformulation. It's the staff's Frankenstein 11 reformulation theory that's impermissible here, and in 12 any event pleads a nexus between concepts that 13 petitioners themselves did not offer.
14 So the reformulation must be rejected for 15 those reasons. And with that we would be happy to 16 take any other questions from the Board.
17 JUDGE SPRITZER: Let me just ask about the 18 business of if you get a table to the ASR limits in 19 ASR, excuse me, in Table 4 of the LAR, my guess this 20 is LAR enclosure 7 which is the non-proprietary 21 version of enclosure 1, you get to those limits.
22 You would then be I think you said outside 23 of your continuing licensing basis at that point, 24 assuming the amendment is approved. Am I interpreting 25 what you've said correctly?
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121 1 MR. LIGHTY: Yes. If you put limits into 2 your licensing basis and then exceeded those limits, 3 you would be outside of your licensing basis.
4 JUDGE SPRITZER: And at that point you 5 have to get some authority from the NRC staff to 6 continue to operate?
7 MR. LIGHTY: I believe it's an accurate 8 statement that you would have to reevaluate and then 9 do something.
10 JUDGE SPRITZER: Do something. I mean, 11 from the petitioner's perspective, I guess they're 12 concerned that they don't know what that something is.
13 And as ASR continues to progress, that there could be 14 a time gap in there between your whatever your next 15 solution might be and the point at which you go 16 outside your continuing licensing basis. What would 17 be your response to petitioner's concern about that?
18 MR. LIGHTY: I would say it's not material 19 to the LAR that is before the staff right now. In 20 other words, NextEra is requesting authority to do 21 something. And the petitioners are asking what 22 happens beyond the authority that's being requested.
23 But that's not material to whether there's 24 a sufficient basis to grant the authority to do 25 something that's being requested in this LAR. It's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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122 1 beyond the scope of the LAR, and therefore it's not 2 material to the determination of whether it can be 3 granted.
4 JUDGE MTINGWA: Let me ask you about your 5 monitoring. You track the in plane expansion, right, 6 that's what you're proposing to do in this three tier 7 way of monitoring the degradation.
8 And you don't do the through direction 9 because you say they're connected or they trend sort 10 of in a same way, although the in plane expansion 11 plateaus out at some point. And the through direction 12 takes off actually.
13 So at some point during all of this 14 expansion, the two have some disconnect. So how 15 confident are you that just tracking the in plane 16 expansion is sufficient?
17 MR. LIGHTY: Well, I believe we're doing 18 more than that. We're measuring the expansion in the 19 extensometer locations for --
20 JUDGE MTINGWA: No, that's only after you 21 hit 0.1 percent, right? But suppose when you're at 22 0.09 percent the Z direction has already taken off on 23 you and it may be in a dangerous situation with the 24 concrete integrity.
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123 1 confident are you that just in plane monitoring is 2 sufficient?
3 MR. LIGHTY: If you give me just a moment 4 to confirm with my team, Your Honor.
5 JUDGE MTINGWA: Sure.
6 MR. LIGHTY: Thank you, Your Honor. So we 7 understand that the limits in the table were 8 established by observation of the expansion and the 9 connection between those two directions that were 10 observed in the LSTP.
11 In other words, up to 0.1 or whatever the 12 number was, that they all trended together. That was 13 the observation in the program. So two things on 14 that. First, based on the Seabrook extensometer 15 locations and the modulus testing that was done there, 16 they have not seen anything that would challenge that 17 observation.
18 And furthermore, in the table in MPR 4273 19 Page VII, the confirmatory analyses for similarity, 20 they would specifically look for a disconnect in that 21 trending.
22 JUDGE TRIKOUROS: I have one last 23 question. In the LAR, Section 351, there's a 24 statement that periodic monitoring of in-plant 25 expansion in accordance with the frequencies in Table NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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124 1 5 will ensure that NextEra can take appropriate action 2 before expansion reaches the ASR expansion criteria in 3 Table 4.
4 The expert witness, or the expert I guess 5 I could say witness, for the C-10, Dr. Brown, 6 indicated that there is no action that NextEra can 7 take. So my question is what is the specific 8 appropriate action that can be taken?
9 MR. LIGHTY: I'm sorry, the specific 10 action that can be taken when?
11 JUDGE TRIKOUROS: All right, so again, 12 from Section 351 of the LAR, I'll read it again.
13 "Periodic monitoring of in plane expansion in 14 accordance with the frequencies in Table 5 will ensure 15 that NextEra can take appropriate action before 16 expansion reaches the ASR expansion criteria in Table 17 4."
18 So this implies a mitigating action. The 19 question is what is the specific mitigating action 20 that can be taken?
21 MR. LIGHTY: I'm not sure that it would be 22 a mitigating action. But I think that this would need 23 further review, additional testing, additional 24 analysis to confirm the status of the concrete and the 25 structural adequacy. But I think it would be further NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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125 1 review to determine what the next steps are, not 2 necessarily some type of a mitigating action.
3 JUDGE TRIKOUROS: All right, so this would 4 have nothing to do with changing the rate of ASR 5 progression or anything physically associated with the 6 ASR?
7 MR. LIGHTY: I think that's a generally 8 correct statement, Your Honor, yes.
9 JUDGE TRIKOUROS: Okay. Now the statement 10 in the LAR is confusing. When you read it, it 11 directly implies that there's some mitigating action 12 that would occur before you reach the Table 4 -- all 13 right, thank you.
14 MR. LIGHTY: Yes, Your Honor. And I think 15 we continue to monitor this issue. And I think the 16 assertion there was intended to convey that before you 17 reach that, that you trigger additional analyses that 18 may need to be done.
19 In other words, you don't wait until 20 reaching that, that you do that at some point before 21 reaching that.
22 JUDGE TRIKOUROS: All right.
23 JUDGE SPRITZER: Anything further for Mr.
24 Lighty? Very well. Thank you for your comments. Let 25 me just go back to the staff for one minute, if you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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126 1 can answer just one question.
2 I would like you to respond to Mr.
3 Lighty's argument that our reformulation authority is 4 limited to trimming inadmissible parts from an 5 otherwise admissible contention doesn't really seem to 6 apply in this case.
7 And then he says that in terms of 8 combining contentions, we only have the authority to 9 combine individually admissible contentions, meaning 10 we would have to find, to admit your reformulated 11 contention, that all the parts that we include are 12 independently admissible. Is that a correct statement 13 of commission law in your view?
14 MR. HARRIS: So I might state it in a 15 slightly different way than the way you stated is the 16 Board cannot add information that was not provided by 17 the petitioner to make the contention admissible.
18 I think in this case, you're not 19 reformulating it by, you know, by substituting stuff 20 that was missing. We were just simply trying to show 21 that if you looked at D without interpreting the what 22 appears to be an intentional cross references by C-10 23 that D, if it had just been submitted by itself would 24 not be admissible.
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127 1 references to all the other contentions that D traces 2 into, that those combine to form an admissible 3 contention. So we are not adding additional 4 information, we are simply reformulating the 5 admissible portions of the contentions into something 6 that is material for the Board to decide, not adding 7 information that was otherwise missing.
8 JUDGE SPRITZER: All right, thank you. We 9 have, we're almost kept to our schedule. Petitioners 10 did not ask for any rebuttal, but we will allow you 11 five minutes. But I do mean five minutes, five 12 minutes only.
13 And I think it would be best advised to 14 keep that to one person if you can do that.
15 MS. TREAT: Thank you, I think we'll be 16 less than five minutes, and thank you for this 17 opportunity. Again, Natalie Treat, Executive Director 18 of C-10 for the record.
19 So the point really that I want to make is 20 that the NRC staff has acknowledged that we have 21 admissible contentions here, however you take it. And 22 that you have admitted them, that our organization, 23 myself, our members, or board, and however you want to 24 take it, are exposed to the risk of harm due to 25 radiological contamination from the concrete NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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128 1 degradation.
2 Therefore, we believe that we have shown 3 that we have standing, and that you have said that we 4 have admissible contentions, Brian. And I'll turn it 5 over to Chris for one more point.
6 MR. NORD: Very simply, the Palisades case 7 law that was cited talks about the purpose of this 8 restriction is to ensure fundamental fairness to the 9 Commission's proceeding for all participants because 10 allowing new claims in a reply would unfairly deprive 11 other participants of an opportunity to rebut new 12 claim.
13 And I simply want to point out that we 14 have not deprived anyone the opportunity of rebutting 15 claims because all we have heard for the last hour, 16 which is fine, are rebuttals to our claim.
17 So it seems to me that that is actually an 18 untenable argument as far as disallowing standing, and 19 clarifications that we try to make as pro se 20 representatives of our standing and contentions for 21 those standing and contention arguments.
22 The last thing that I would just say is 23 having to do with a reference earlier to earthquakes 24 that, you know, we were sort of coming out of the blue 25 with this notion that an earthquake is suddenly be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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129 1 beyond design basis.
2 And so I went back and looked it up from 3 our petition, and I don't say that the earthquake is 4 beyond design basis. I said greater than expected.
5 It could still be within design basis. I don't expect 6 to have a large earthquake anywhere near us, but I do 7 know that we're close to an earthquake fault.
8 So the idea that we were trying to convey, 9 perhaps not as clearly as staff would have preferred 10 and I understand, is that the combination of some kind 11 of natural phenomenon, in this case an earthquake was 12 what I used, even what is expected within design basis 13 combined with the deterioration of the concrete 14 because of ASR could result in a calamitous 15 consequence. That was the point that I was trying to 16 make.
17 So with that we'll just say thank you for 18 giving us the opportunity to make some further 19 clarifications.
20 JUDGE SPRITZER: Very well. That 21 concludes the argument. Are there any housekeeping --
22 well let me first say we will do our very best to get 23 our ruling out within the 45 day period which starts 24 running today. If in the event we don't meet that, we 25 will issue the order required by the regulations NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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130 1 explaining when we will get the ruling out. But we 2 will give every effort to deal with all the issues 3 we've been presented with in that time period.
4 Are there any other housekeeping matters 5 we haven't, we need to talk about here today that we 6 haven't covered?
7 MR. NORD: Thank you for the opportunity.
8 JUDGE SPRITZER: All right. Just one 9 question for, I guess this is mainly for NextEra. On 10 the documents, the privileged documents or the 11 protected documents, I think for all of them we have 12 redacted versions that we could use what we would cite 13 in our order.
14 If we don't, my understanding is you have 15 blocked out everything we need to not refer to either 16 in red boxes or otherwise. So if we did have to refer 17 to a document that was protected, I would think we 18 could refer to the portions that aren't blocked out or 19 in a red box. But I just want to make sure that I'm 20 correct about that.
21 MR. LIGHTY: Yes, Your Honor, that's 22 correct. All of the proprietary content has been 23 blocked out of the documents.
24 JUDGE SPRITZER: All right, very good.
25 (Simultaneous speaking.)
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131 1 JUDGE SPRITZER: Unless there's anything 2 further, we will conclude our --
3 Oh, excuse me.
4 MS. TREAT: Just one clarifying question.
5 I believe that Attorney Harris indicated that if we 6 were admitted standing in this docket that we would 7 have privilege to the redacted versions as well, that 8 we missed the previous deadline. What would we be 9 able to see?
10 JUDGE SPRITZER: Well, I think what he 11 said was if the petition is granted, if we admit the 12 petition and proceed with the case, that the Board 13 would then enter a protective order that would allow 14 appropriate access for the representatives of C-10.
15 Am I paraphrasing you correctly, Mr. Harris?
16 MR. HARRIS: You have got me absolutely 17 correct, sir.
18 JUDGE SPRITZER: All right. We'll get to 19 that stage when and if we issue our order. There will 20 be something in our order or at least shortly 21 thereafter about moving forward with a protective 22 order. That would typically I think, probably either 23 the staff or NextEra have some form of protective 24 order that they've used in other cases that they could 25 confer with you and hopefully come up with an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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132 1 appropriate order that would allow the access you 2 need.
3 Anything else? I think that concludes our 4 proceedings then. Thank you, it's been a very 5 informative, interesting argument.
6 (Whereupon, the above-entitled matter went 7 off the record at 1:13 p.m.)
8 9
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