Text

Transcript of 800730 Prehearing Conference in Two Rivers,Wi. Pp 1-97
	ML19330C041
Person / Time
Site:	Point Beach
Issue date:	07/30/1980
From:	; Atomic Safety and Licensing Board Panel
To:	;
References
	ISSUANCES-CO, NUDOCS 8008070455
	Download: ML19330C041 (97)
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-.~ 1 UNITED STATES OF AMERICA m-2 NUCLEAR REGULATORY COMMISSION 3 I) ) 4 In the Matter of: ) ) Docket No. 50-266 CO 5 WISCONSIN ELECTRIC POWER COMPANY ) ) (Modification of License) 6 (Point Beach Nuclear Plant, Unit 1 ) ) 7 8 Conference Room Carlton Inn Motel 9 1515 Memorial Drive Two Rivers, WI 54241 10 Wednesday, July 30, 1980 11 The above-entitled matter came on for Prehearing 12 (~% Conference pursuant to notice at 9:30 a.m. s 'h;/ 13 BEFORE: 14 COMMISSIONER HERBERT GROSSMAN, CHAIRMAN 15 COMMISSIONER RICHARD COLE COMMISSIONER J. VENN LEEDS 16 APPEARANCES: 17 On behalf of the NRC Staff: 18 'i MS. KAREN CYR 19 MR. RICHARD HOEFLING MR. RICHARD LOBEL 20 MR. ROBERT CLARK 21' On behalf of Wisconsin Electric Power Company: 22 MR. GERALD CHARNOFF MR. JOHN O'NEILL 23 f 24 s-25

l KREN ROMAIN - RPR 2 1 On behalf of Wisconsin Environmental Decade: 2 MS. KATHLEEN FALK s MR. PETER ANDERSON l 3 MS. DIANE MOLVIG /T G 4 On behalf of the State of Wisconsin: i i 5 MR. PATRICK WALSH MR. CARL SINDERBRAND 6 ASSISTANT ATTORNEY GENERALS 7 8 9 10 11 12 P1 0.:-/ 13 14 15 l l6 17 18 19 20 ) 21 F% V 22 23 3 24 25 ) I

s KAREN ROMAIN - RPR 3 7(-) 1 TRANSCRIPT OF PROCEEDINGS

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2 CHAIRMAN GROSSMAN: Ladies and gentlemen, the 3 Prehearing Conference is now called to order. This is a f3 (_/ 4 Prehearing Conference under the authority of the Regulatory ) j 5 Commission. It is being held today, Wednesday, July 30th, i I 6 1980 at the Carlton Inn Motel, Two Rivers, Wisconsin. ) 7 This is in the matter of the confirmatory order 8 issued on November 30th, 1979 and subsequently amended or 9 modified on Wisonsin Electric Power Company Point Beach 10 Unit 1, Docket 50-266. 11 I would like first to introduce the Atomic 12 Safety and Licensing Board here. My name is Herbert ,s y'q) s/ 13 Grossman. I am going to act as Chairman here. 14 on my left is Dr. J. Venn Leeds. On my right is 15 Dr. Richard Cole. Doctor Leeds background is that he is 16 professor of electrical engineering at Rice University. He '17 received a BA and BS at Rice University, a Master of 18 Science and Electrical Engineering and PhD at the 19 University of Pittsburgh. He received his law degree, JD, 20 at the University of Houston. He's a Registered ) 21 Professional Engineer and Attorney. He had worked at a ' 22 Bettis Atomic Laboratory for seven years and he's been at 23 Rice University for the past 17 years, in addition to being ) 24 a consultant to various companies. 25 On my right is our environmental member, Dr. ) PEPPEY REPORTING CO. / 273-7308

m KAREN ROMAIN - RPR 4 1 Richard Cole. Doctor Cole has a Bachelor of' Science in . - Q, r-) / 2 Civil Engineering from Drexel, a Master of Science in 3 Sanitary Engineering and Water Resources from MIT. A PhD 4 in Environmental Engineering from the University of North 3 5 Carolina. He spent seven years with the Pennsylvania 6 Drpartment of Health, 11 years at the University of North 7 Carolina, including seven and a half years on the faculty 8 of the graduate school. When he left the University of 9 North Carolina, he was a Director of the International 10 Program of Sanitary Engineering. He has been a permanent 11 member of the Atomic Safety and Licensing Board Panel since 12 1973. He's a Registered Professional Engineer in Maryland )((O> t' 13 and Pennsylvania, and is a Diplomat in the American Academy 14 of Environmental Engineering. 15 My name, as I said, is Herbert Grossman. I have 2 16 a BA from Cornell, an LLB from Columbia, a Masters in Law 17 from Georgetown. My prior experience was as a trial 3 18 attorney with the Department of Justice for approximately 19 15 years. I am on the Register of Certified Administrative 20 Law Judges and I have been a permanent member of the Board 21 for about a year. A \\- 22 By the way, Professor Leeds is a part-time j 23 member of the Board in addition to being at the University. )b {y 24 To mention the chronology of this proceeding, 25 the Wisconsin Electric Company's Point Beach Unit received J PEPPEY REPORTING Co. / 273-7308

KAREN ROMAIN - RPR 5 l ~~3 1 its operating license in October of 1970 and began ,'V 2 operating in December of that year. It experienced some 3 steam generated tube degradation due to caustic compression em O 4 corrosion and denting which became apparent in 1971. And 3 S there have been apparently some problems with that on and 6 off until this. Proceeding terminated basically in August 7 and October when the facility was shut down for awhile for 8 refueling and maintenance, and an inspection by the 9 licensee and the Nuclear Regulatory Commission Staff 10 indicated that there was further degradation. 11 There were a number of petitions filed by the 12 Wisconsin Environmental Decade, Inc. in November and )( 7 13 December of 1979. There was a request under Section 2.206 14 for a show cause. There was a request for a hearing on a 15 proposed license amendment which was subsequently withdrawn. ) 16 That is, the amendment was. 17 On November 30th, 1979, the Nuclear Regulatory ) 18 Commission Staff issued first a rejection of the request 19 for hearing under 2.206. Then the confirmatory order which 20 is in issue now and a safety evaluation report that was ) 21 attached to it. The confirmatory order was based on I /~N \\' 22 agreements that had been entered into by the NRC Staff and 23 licensee the day before, and one the day before that, which )O (j 24 pl~ aced certain restrictions, additional restrictions, on 25 the operation of the facility. Because of these problems 3 PEPPEY REPORTING CO. / 273-7308

s KAREN ROMAIN - RPR 6 I that had developed with the steam generator tubes. 3 2 The Decade filed a petition for hearing on the 3 confirmatory order which was referred to the Nuclear 7_ V 4 Regulatory Commission the five member Commission, which ) 5 then issued an order on May 13th which indicated that the 6 proceeding here would be governed by an order issued in a 7 similar case involving Marble Hill. That order actually 8 issued a day later -- either the same day or a day later 9 than the order in this case. 10 In addition to -- the Commission order in this 11 proceeding required that an Atomic Safety and Licensing 12 Board be established to determine whether -- to apply the 13 principles of Marble Hill to this proceeding and to 14 determine whether on applying those principles a hearing 15 should be held. The confirmatory order had specified scope 16 of the issues on which a petition for hearing could be 17 filed. 18 The main order of business here this morning 4 19 will be to determine how the principles in Marble Hill can j 20 be applied to this proceeding. 1 21 I want to first mention as is obvious chat we 22 don't have any microphones here and there's no PA system, ~ 23 even though it was ordered. So everyone is going to have s'& fjy/ 24 to speak up in order to be heard and to make sure that 25 everything is taken down properly in the transcript. y PEPPEY REPORTING CO. / 273-7308

3 KAREN ROMAIN - RPR 7 3 1 I would like now for the participants to Q(,) 2 introduce themselves and to indicate who they are 3 representing, and I am going to start on my left with I g-) LJ 4 believe representatives from Wisconsin, who first came into 5 this proceeding this morning, I believe, or are attempting 6 to join the proceeding. Could you proceed? 7 MR. WALSH: Yes, Mr. Chairman. My name is 8 Patrick Walsh. I am an Assistant Attorney General with the 9 State of Wisconsin. To my right is Carl Sinderbrand, who 10 is also an Assistant Attorney General, 11 CHAIRMAN GROSSMAN: Could you spell the names 12 for the court reporter? 2A) 7 13 MR. WALSH: Walsh, W-a-1-s-h. Sinderbrand, 14 S-i-n-d-e-r-b-r-a-n-d. 15 We have been requested by the Governor of the 16 State to seek the status of an interested State in this 17 proceeding pursuant to 10 CFR 2.715(c). And at this time I J 18 would like to file with the Board our petition for leave to 19 participate. We are sorry we are late, but better late 20 than never. ) 21 CHAIRMAN GROSSMAN: Do you have copies for all 3 22 the parties? 23 MR. WALSH: Yes, for all the parties. s' (~h ^3/ 24 Just one briet statement before we go any 25 further. It is the position of the State of Wisconsin that 3 PEPPEY REPORTING CO. / 273-7308

!s KAREN ROMAIN - RPR 8 j 1 there should be a full hearing on this steam tube 2 degradation problem and that we feel that the Board has the 3 discretionary power to order such a hearing. And if the O-4 Board feels it does not have that power, given the order of ~. 5 the Commission, we would ask that the matter be recertified 6 to the Commission for another decision, since the 7 Commission personnel has changed since the last order. 8 CHAIRMAN GROSSMAN: I take it, though, the State 9 of Wisconsin is not filing a petition under Section 2.714 10 and actually requesting a hearing on its own, is that 11 correct, sir? 12 MR. WALSH: That's correct. It's our position r\\ O 13 we are not taking a position on the contentions filed by 14 the Decade. We think they raise significant issues to the 15 State's interest and we would support a hearing on those i 16 contentions without taking an actual position as to the 17 merit of any of the contentions they have raised. j 18 CHAIRMAN GROSSMAN: Thank you. I believe Decade 19 is next. 20 MS. FALK: Yes, Mr. Chairman. Wisconsin ) 21 Environmental Decade appears today by its counsel, myself, en 22 Kathleen M.

Falk, F-a-l-k.

Also Peter Anderson, 23 A-n-d-e-r-s-o-n, who is Public Affairs Officer and Chief ' ("T - 7' 24 Analyst, and by Ms. Diane Molvig, M-o-1-v-i-g. ~25 CHAIRMAN GROSSMAN: And could the licensee's J PEPPEY REPORTING CO. / 273-7308

~. KAREN ROMAIN - RPR 9 f-) 1 representatives please introduce themselves? I.\\/ 2 MR. CHARNOFF: Yes, sir. Wisonsin Electric 3 Power company appears this morning through Gerald Charnoff 4 of the law firm of Shaw, Pittman, Potts & Trowbridge. And ) 5 Mr. John O'Neill, who is seated on my right. 6 Might I say, Mr. Chairman, that notwithstanding 7 the lateness of the Attorney General's filing, we have no 8 objection to their appearing under 2.715(c) if there is a 9 hearing. Of course if there is no hearing, then we have !) 10 nothing further to discuss with respect to them. We don't 11 view their request as itself initiating a request for 12 hearing. 13 CHAIRMAN GROSSMAN: Would the Staff introduce 14 itself? 15 MS. CYR: I am Karen Cyr, C-y-r. With me also 16 is counsel for the Staff, Mr. Richard Hoefling, 17 H-o-e-f-1-i-n-9, Mr. Robert Clark and Mr. Elchard Lobel 18 from NRC Staff. 19 CHAIRMAN GROSSMAN: Okay. I think first we 20 ought to have a brief discussion of the Board's ) 21 understanding of Marble Hill. In that case there was an 22 enforcement order issued which required a suspension of 23 activities. There was a petitioner which requested that j'"/, ) instead of suspension there be a more stringent remedy of 24 25 revocation of the license. ) PEPPEY REPORTING CO. / 273-7308 D

s KAREN ROMAIN - RPR 10 <3 1 The Commission or the enforcement order 'h) 2 specified that as in this case, request for hearing could 3 be filed with respect to issues that were covered in parts Os 4 two and three of that order, wh.'.ch as in this case related 5 to the underlying f acts that gave rise to the needs for 6 remedial action. 7 The Commission held that the petitioner had no 8 standing to have a hearing in that case because for one, 9 the restriction to those parts of the order were within the 10 authority of the NRC Staff and once the scope of the 11 proceedings were restricted to issues involving those two 12 parts of the order, there was nothing detramental that \\ 13 could result from the enforcement of that order and that 14 consequently the petitioner, which could not suffer injury, 15 had no standing to intervene in that proceeding. 16 Now I would like to start off with asking the 17 representatives from Decade why they submit that -- if they ) 18 do -- there's any difference in this proceeding than in 19 Marble Hill, which would require that we entertain their 20 request for hearing. .) 21-MS. FALK: Does it make it easier for everybody O 22 if we stand up and speak? I will stand up, just in case. 23 There are several reasons, Mr. Chairman and Board, that we 24 think distinguish this case from the Marble Hills case. I 25 would like to elaborate on several of them. ,y PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 11 1 First of all, though, I would call your , s-2 attention to the fact that Marble Hills and the November 3 30th order, the order setting this conference, make (~) v 4 reference to Section 189 of the Atomic Energy Act. And the ) 5 statutory authorization then for when a hearing is going to 6 be held is -- I will read from there. "The Commission 7' shall grant a nearing upon the request of any person whose 8 interest may be affected by the proceeding." 9 Now that language is very broad and Marble Hill 10 was an attempt, I understand, of the Commission to 11 interpret that language. The Marble Hill decision says 12 it's going to be interpreting that language according to ,s (d 13 the way the case law has interpreted that language. I do 14 not believe a fair reading of the case law on what the word 15 " interest" means compels the decision reached by the i 16 . Commission in the Marble Hill case. I think it is 17 incorrect as a matter of law. 3 18 However, before I argue that po i n t, and I will 19 argue that before we adjourn today, we will distinguish, 20 even if we accept Marble Hills as it is as sound law, that ) 21 case from our case here. p '22 The test applied is whether or not the two-fold ~' 23 test which Marble Hill said they applied and the Courts ,> r~; f][ 24 have always applied is whether or not there's an injury in 25 fact and whether or not that injury is one recognized by ) PEPPEY.REPORTINGICO.'/. 273 7308 U

s. KAREN ROMAIN - RPR 12 g3 1 the zone of interest protected under a particular law. The K,) 2 second portion of the test has never been challenged here. 3 It is the first portion of the test that the parties, the 4 NRC Staf f, and the Company has contended we do not meet. 3 5 We believe we do meet that for several reasons, 6 The first is that the November 30th order being 7 challenged here authorizes the Company to resume operations 8 at Point Beach Unit 1. The Company, but for that order, 9 could not resume operations. That plant was in a shut down 10 stage. If there was any doubt as to this fact, transcript 11 of the proceedings before the Commission on November 28th 12 with Mr. Daryl Eisenhut of the Commission Staff reporting / ) 13 to the Commission clearly indicates that the agreement, the 14 orders by the NRC Staff, verbal orders were to the Company 15 not to reopen that plant without written authorization. 16 We have cited some of those salient portions of 17 the transcripts in our prior filings with you. I believe 18 the February 22nd filing. 19 CHAIRMAN GROSSMAN: Let me ask you. When you 20 say filings with us, now that was a filing that went off to ) 21 the Commission. And the Commission had that filing when it r^T 22 came down with its order requiring that the principles of 23 Marble Hill be applied to this case. So it's something the

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24 Commission did have cognizance of. 25 MS. FALK: I presume if the Commission had not ) PEPPEY REPORTING CO. / 273-7308

S KAREN ROMAIN - RPR 13 1 been convinced of this, they would deny our hearing outright. g3 2 So I would beg you to look at pages four, five, three and 3 eighty in particular of the transcript of that November 4 28th meeting. 5 And I will quote just two phrases stated by Mr. 6 Eisenhut at that time. "The plant would not start up 7 without prior written approval." Another quote, "The plant 8 is shut down." 9 Consequently the November 30th order which 10 authorizes the plant to reopen on its face causes us injury 11 in fact. The second way in which the November 30th order 12 causes us injury in fact is that it produces or requires A. 13 the Company to reduce the temperature in the hot leg of the w 14 system. 15 CHAIRMAN GROSSMAN: Before we go on to that, .) 16 that is a very interesting point about why the Commission 17 did order the impaneling of the Board. That appears to be 3 18 a partial reason that you have given. However, the 19 Commission also ordered that if a hearing is held, that it 20 nevertheless be restricted to parts two and three as ) 21 contained in the confirmatory order itself. /~T '\\ J 22 Now how can we reconcile your position that 23 there was the establishment of a Board in order to ) r^s k3 - / 24 determine whether or not there was actual similar situation 25 to Marble Hill and then the Commission further requiring ') PEPPEY' REPORTING CO. / 273-7308

~ KAREN ROMAIN - RPR 14 1 the same restriction as in Marble Hill. Isn't it g )3 2 irrelevant whether or not there was -- whether or not we 3 make that determination that you ask us to make that 4 there's a difference between Marble Hill if nevertheless ) 5 you' re restricted to the same scope as the Marble Hill 6 intervenor was restricted to? 7 MS. FALK: My understanding now, Mr. Chairman, 8 why we're here today is to determine whether or not we have 9 the standing to require you to hold a hearing. The scope 10 of the hearing, I understand, is a different ballgame. We 11 are not to that step, to decide what the scope of the i 12 hearing should be. ['"'I 13 CHAIRMAN GROSSMAN: In determining standing, 14 didn't the Commission use a two step approach? One in 15 which they determine what the scope was and then two, 16 determine that because the scope was so limited, they could 17 or they were forced to conclude there was no standing ) 18 because having a limited scope meant there would not be any 19 injury? I am not suggesting that the Commission had to go 20 that far. It seemed to me they could have just stopped ) 21 with scope. But they did use the limitation on scope in ('T \\l 22 order to resolve the standing issue. 23 Now what I am suggesting here is that you can't -- ' O) l (k 24 using the test from Marble Hill, once you assume that the sg i i i 25 scope is limited, aren't you forced to conclude that ,) PEPPEY REPORTING Co. / 273-7308

1 T KAREN ROMAIN - RPR 15 s3 1 there's no standing? e h 2 MS. FALK: I have two responses to that, Mr. 3 Chair. One, I am going to distinguish on other grounds why 4 the provisions contained in certain portions of that order 5 also injure us beyond the reason I have just given you, 6 which I think will meet your concern. But the second one 7 is the point you are raising. It's the point that both 8 Commissioners Bradford and Gilinsky have pointed out in 9 their order to the Commission, May 12th order. That is the 10 petitioner is not permitted to discuss the issue concerning 11 them most, meaning the safety issue. I think your point is 12 very well taken. That is one of our very grave concerns ,_(N 13 and that is why the people we represent are very concerned 14 that by defining this out of the ballpark we are not 15 getting to raise our concern. 16 The second way the November 30th order injures 17 us in fact is it requires the Company to reduce the 18 temperature in the hot leg of the system. However, ten 19 days later, major leaking occurred. That provision in the 20 order did not suffice to protect us from the injury we are 21 claiming aggrieves us here. The leaking is still occurring. C') 22 The tube degradation problem has not been solved. l 1 23 Now the Staff has conceded in filings and ' C f:yy) 24 presentations to the Commission that 'in fact reducing the I 25 temperature in that hot leg has aggravated the problem. PEPPEY REPORTING CO. / 273 7308 7

KAREN ROMAIN - RPR 16 .e3 1 Mr. Tremmel for the Staff stated that in doing the h 2 reductions in primary system temperature, they actually 3 aggravated the problems associated with differential m 4 pressure across the tubes. 5 That citation is found at the transcript of the 6 January 2nd Commission briefing to the Commission. At page 7 ten. 8 If it could be argued -- and I presume it will 9 be argued by the utilities that subsequent to that November 10 30th order which required the reduction of temperature, 11 modification to the November 30th order occurred on January 12 3rd which also required the pressure to be reduced. And i ~ 13 that counterbalanced the temperature reduction order. We 14 do not believe that is correct, also because of indications 15 and admissions by the Commission Staff. 16 At that same meeting of January 3rd, at page one 17 of the transcript, said "This change to a lower pressure 18 adversely affects departure from nuclear boiling ratios and 19 requires justification that the reactor is still adequately 20-protected." In other words by trying to put another safety 21 device on something that hasn't worked, they still haven't ('S \\2 22 made 'the plant safe. j 1 23 CHAIRMAN GROSSMAN: By the way, if you are going lO N./ 24: to maintain that position on the reduction in temperature, ~~- 25 .why didn't you also include that in the supplemental PEPPEY' REPORTING CO. / 273-7308

s KAREN ROMAIN - RPR 17 S 1 petition? That was not a contention in your supplemental, ?%) 2 was that? 3 MS. FALK: I do. tot believe it was. I think you 4 are correct. 5 CHAIRMAN GROSSMAN: Didn't that suggest you were 6 going to abandon that? 7 MS. FALK: No, not at all. The whole point I am 8 making is the standing test is different from the scope of 9 issues to be litigated at a hearing. Standing is that 10 threshold which gets you to the door. 11 CHAIRMAN GROSSMAN: You are not raising that as 12 an issue of contention in the case, but just indicating how -. 'O 13 MS FALK: How we were injured and why we are 14 concerned. 15 CHAIRMAN GROSSMAN: But not raising that as an B 16 issue -. 17 MS. FALK: We do not plan to -- in our 2 18 preliminary discovery questions -- do not plan to litigate 19 I that issue. We are more concerned about solving the 20 generic problem of tube degradation at Point Beach. This .) 21-is not a fishing expedition. 22 CHAIRMAN GROSSMAN: Can you tell me what the 23-status is of any petition for hearing on the January 3rd .) /~~T A.../ 24 modification of order? My understanding is you never 25 received modification until the time had -- you never ) PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 18 ye3 1 received modification until the time had expired. \\j 2 MS, FALK: That is correct. 3 CHAIRMAN GROSSMAN: And I take it you have not 4 subsequently filed anything with regard to that? 5 MS. FALK: That is correct. 6 CHAIRMAN GROSSMAN: Okay. Now I do notice in 7 the Commission order there was reference to request for 8 hearing on two orders and my assumption was that the 9 Commission itself assumed even without your reques. _or 10 hearing that that modification order would be included in 11 any hearing that might be granted. 12 MS. FALK: The January 3rd? O 13 CHAIRMAN GROSSMAN: Yes. 14 MS. FALK: We have also subsequently on May 29th 15 filed a request for hearing which the Commission has no? 16 acted upon and which it is our understanding is now before 17 you today. That is a separate petition. 18 CHAIRMAN GROSSMAN: I don't believe that's the 19 case. That was on the subsequent modification of April 4th. 20 I believe that's been referred to us now. 21 MS. FALK: We have not gotten any documentation T ~ 22 of.that whatsoever. 23 MR. CHARNOFF: The Staf f has recommended that be 'b 24 ' referred to you. But as far as we know that has not been s _.r 25 referred to you. PEPPEY__ REPORTING, CO. / 273-7308_

'\\ KAREN ROMAIN - RPR 19 es 1 MS. FALK: That occurred May 29th. So g 0: 2 presumably the May 12th order does not encompass that. 3 COMMISSIONER COLE: That is a letter from Denton e-(>) 4 to the Commission. 5 liS. CYR: As far as I know the Commission has 6 taken no action to formally refer it. 7 COMMISSIONER COLE: Served on the parties in the 8 case, was it? 9 MS. CYR: Yes, the Secretary's office served it. 10 COMMISSIONER COLE: I didn't get it, and I got 11 it out of the Federal Register myself. 12 MS. CYR: What wasn't? 13 COMMISSIONER COLE: The April 4th, 1980 14 Commission order by Denton. 15 MS. CYR: I don't know what the service was. I 16 am sorry, I don't know what the service was on that. I was 17 talking Denton's letter. 18 CHAIRMAN GROSSMAN: To the Commission. 19 Referring that to the Commission. It was my impression, 20 and perhaps I am wrong, that the Secretary of the 21 Commission then referred it to us. But perhaps I am (~T 22 anticipating. I thought it was in here somewhere. But in 23 any event, is there any question as to whether since the . /') f;3r 24 Board is impaneled to determine whether a hearing is 25 necessary on the confirmatory order, that the modifications 'PEPPEY REPORTING CO. / 273-7308

w P' KAREN ROMAIN - RPR 20 I are not also included in jurisdiction we have here? Y-). z 2-MR. CHARNOFF: We have no objection to that 3 being referred to you for your ruling on that matter. We 4 understood the contentions that were filed by the Decade 5 pursuant to your order to list those matters that they 6 wished to consider almost independent of what those 7 confirmatory orders were providing, and they proceeded in 8 time. That particular filing we think would be cleaner for 9 you to have jurisdiction over, that latest request as well, 10 and to dispose of all of these requests at the same time. 11 MS. FALK: Are you referring, Mr. Chair, to the 12 April 4th order? We would object most vigorously to that. ' )( 13 We believe it's particularly important that the Commission 14 makes its initial first shot decision on a request there, 15 especially in light of the fact the Commission personnel 16 has changed and they may want to reconsider Marble Hill 17 especially in light of the way the decision was reached and } 18 the opinions written at that time and subsequent to that 19 time by Commissioners on the soundness of the Marble Hill 20 decision. We would object to that procedure. .) 21 CHAIRMAN GROSSMAN: Could we hold off for a 22 second here and see if I can locate anything further on 23 that request from_Mr. Denton to the Commicsion to ' ('T s ['/ 24 incorporate that modification in this proceeding. ~s 25 ~ MS. FALK: We have objected also by letter dated ') i PEPPEY REPORTING CO. / 273-7308

s KAREN ROMAIN - RPR 21 s 1 July 26 to the second on the suggestion of Mr. Denton. 4 ) ', s./ 2 MR. CHARN0FF: We haven't received that letter. 3 But'I understand where the Decade is coming from or 4 attempting to go. In my view it's only academic. I am s 5 sure the Commission would refer that latest request over to 6 you and grant Mr. Denton's request. Until they do so, it 7 seems to me in light of the objection we just have to take 8 the record as it is. 9 CHAIRMAN GROSSMAN: Okay, I don't want to waste 10 the time now on that. I don't think that's really going to 11 be important as to whether it has already occurred or will 12 occur. fl -tv 13 MR. CHARN0FF: The only comment I would like to 14 make to the discussion we have, sir, if I may at this time, 15 is simply that it's our view there was no request on the 16 January 3 modification. The record stands just as you 17 cited it. Apparently there was an observation made by the 3 18-Decade that they got late notice of it. And the record 19 stands as Ms. Falk indicated. They have never requested a 20 hearing with respect to that matter. The only request for ) 21 hearing at the moment is the request for hearing on the 22 November 30th order. And then the request,on the April 4 23 order which huc not yet been officially referred over to a (/~/ ') 24 you that we know of. 25 Chi.IRMAN GROSSMAN: But didn't the Commission 31 PEPPEY REPORTING CO. /L 273-7308

s KAREN ROMAIN - RPR 22 g-1 order -. Q) 2 MR. CHARNOFF: It did say, "has before it 3 request for hearing on two orders." But there really was 4 no request and I think that Decade can acknowledge there 5 was no rege*3t. 6 MS. FALK: Only because we could not file under 7 the regulations of the NRC. 8 MR. CHARNOFF: I think there was no effort to 9 make that filing. There was an assertion by you that it was 10 late. Getting notice to you. There was a Federal 11 registered notice and it strikes me that that was five, six 12 months ago and we have yet to get a request for hearing on h 13 that from the Decade. And beyond that, when they filed, 14 they requested on the April order. They didn't refer to 15 the so called January order. 16 CHAIRMAN GROSSMAN: But nevertheless you have no 17 objection, is that correct, to our considering their G 18 petition in light of both the November 30th and the January 19 3rd petition? i 20 MR. CHARNOFF: I have no objection to your ) 21 considering their request on the November order in light of /'T \\~^ 22 those two orders, but I have objection to your assuming ' 23 that there's a request for hearing on the January order. ~ (hy) 24 That is, I don't have any problem with your taking into -- s_e 25 your acknowledging the fact those two orders deal with the ) PEPPEY REPORTING CO. / 273 7308

.. _ _.~ KAREN ROMAIN - RPR 23 /~ 1 same matter. Moreover I have no objection if you even take k)T ? into account the request for Learing on the April 4 order. 3 Subject to no objections from everybody else. 4 MS. CYR: The Staff would object to your 5 considering the January 3rd order since no request for 6 hearing has been received. Those style modifications 7 really are separate orders issued. Each one is a separate 8 order. They ordeced separate conditions and limitations on 9 the license and requests were filed on the first and third. 10 We have no objections to your considering a request on the 11 third order pending some kind of subsequent referral from 12 the Commission. 13 CHAIRMAN GROSSMAN: Is there any way to consider 14 the confirmatory order of November 30th without taking into 15 account the modification in any event, whether they 16 requested a hearing on that? 17 MS. CYR: Yes. Though they dealt with similar 18 issues, similar concerns at the plant, they were separate 19 orders. They imposed separate restrictions, distinct 20 restrictions on the license. 21. COMMISSIONER COLE: But it changed the O 22 requirements of the November 30th order. 23 MS. CYR: The January 3rd orc ~er did not change f ra,) I 24 the requirements of the November 30th order. 25 COMMISSIONER COLE: Simply in addition, then? PEPPEY REPORTING _; CO._ _ / _ 273-7308_ _

.( j s KAREN ROMAIN - RPR 24 j ,7) 1 MS. CYR: Imposed an additional restriction to %/ 2 the operation of that facility. 3 COMMISSIONER COLE: But the April 4th did? fs Lob 4 MS. CYR: It added one. It added a new 5 condition. The one expired under the November 30th order. 6 It added the new condition to it. By terms it's similar to 7 the one imposed by the November 30th order. But it was a 8 new condition imposed on that license. That they do a test 9 within a certain period of time. 10 COMMISSIONER VENN LEEDS: What time limitation 11 expired? 12 MS. CYR: The 60-day.

(

13 COMMISSIONER VENN LEEDS: And they had by that 14 time operated for 60 full-power days? 15 MS. CYR: Right. And they shut down in March to 16 conduct the test. 17 CHAIRMAN GROSSMAN: I believe we understand the 1 18 positions of the parties. Unless you have something you 19 want to say. -20 MS. FALK: I would like to elaborate on the

)

21 suggestions made by some of the counsel here. That the 22 Decade should have not complied with the NRC regulations 23 and should have made filings even if not authorized under .J tm ] 24 NRC regulation. Needless to say we have been an interested 25 party in the case for many, many, many months before that J PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 25 1 January 3rd order was issued. And to not even be served h-- 2 with a copy of that order was very egregious to us and we 3 think a real affront against the citizens of Wisconsin who 4 are trying to raise legitimate concerns. And to suggest 5 that we should not have followed the NRC regulation, which 6 we have been' following even at expense to a public group, 7 really goes too far. S CHAIRMAN GROSSMAN: Let me ask you, by the way. 4 9 Was a service attempted? 10 MS. CYR: I am sorry, I don't know. I wasn't 11 involved in it. It was published in the Federal Register. 12 I assume since she didn't get it. I was not involved at . O L-13 that time. 14 COMMISSIONER VENN LEEDS: Did any piece of paper 15 get served on anybody other than the Federal Register? 16 MS. CYR: I don't know. 17 COMMISSIONER VENN LEEDS: Were they the only 18-ones left out, or was everybody lef t out? 19 MR. CHARNOFF: I am not sure there was anybody 20 else to be left out. I am not sure we were served as such 21 by that particular order. Let me point out that the pkl 22 . statement just made by Ms. Falk is really remarkable 23-because there was an April 4th order that was issued. It 1 24-came to them within the time frame but close to the end of 25 the time frame for requesting the petition or for filing .PEPPEY REPORTING CO. / 273-7308

l m KAREN ROMAIN - RPR 26 g-1 the petition. They simply said we got it late, we want f.N)J 2 more time to file the petition. And the Commission gave 3 them that more time. 4 MS. FALK: We have requested once an extension. 5 When we received that order two days before the time 6 expired. We did then file a request for the extension of 7 time. We did not receive a January 3rd order until by 8 cover letter dated January 24th. 9 MR. CHARNOFF: All I am suggesting is it's not 10 so eg regious. The Commission has in other cases had that 11 kind of foul up on service. And parties have said we would 12 like more time to file a petition and did so. That O 13 practice simply just was not followed in connection with 14 the January 3 order. 15 CHAIRMAN GROSSMAN: Okay. Whatever may be the 16 circumstances, we certainly will take into account the fact 17 that Decade has filed diligently whenever they have ') 18 received notice of any action. And we don't have any 19 question, at least I don't, that you didn't receive it soon 20 enough to make a timely response to it, taking into account ) 21 all the other responses we have made to all the other O n 22 filings. So why don't we just proceed on your presentation. 23 MS. FALK: To get onto the Marble Hill case a N 24 little more in depth, the Marble Hill case as we ._,i 25 understand, then, is an enforcement proceeding or was an Q PEPPEY REPORTING CO. / 273-7308

3 KAREN ROMAIN - RPR 27 gT 1 enforcement proceeding. That is not the case here. This 6,/ 2 is not an enforcement proceeding. (S 3 What is issued here is adequacy of the license \\_) 4 in terms of the license, not whether or not conditions of 3 5 the license were being complied with. 6 My understanding of the Marble Hill case was the 7 question there was whether or not inspection procedures had 8 been duly complied with. That during construction, a phase 9 of the plant -- whether certain inspection procedures had 10 been followed. That is not the case here. Which is very 11 different. 12 So on that grounds alone I think the standing d.(- 13 test can be distinguished. Regardless of that, we also 14 believe that inaction or failure of an agency to take 15 action where required has long been recognized by the 16 Courts. We have cited the cases to the Commission in our 17 filings as grounds for grievously injuring the parties. We 3 18 believe as we have stated in our filings to the Commission 1 19 that such an action in this case constitutes injury and in 20 a sense in Section 189 of the Atomic Energy Act. We ) 21 understand the Marble Hill decision does not concur with '.] 22 that. Since this is not the place or time to argue whether 23 or not the soundness of the Marble Hill decision should be s ' f~'\\ ^3/ 24 upheld by the Commission. That certainly is not your job v 25 and responsibility here. We will be attempting in the

)

PEPPEY REPORTING Co. / 273-7308

3 KAREN ROMAIN - RPR 28 g-~ 1 future not only for ourselves but other citizens who are 2 blocked out or kept from NRC, in the words of Commissioner 3 Bradford and Gilinsky, from raising serious safety concerns 4 by the holding of the Marble Hill case. 5 I think that would conclude my remarks at this 6 time unless there's questions you would like to ask of me 7 now. 8 COMMISSIONER VENN LEEDS: Right now we have 60 9 full power days. I didn't have the fact in hand that 60 10 full power hour days had expired. Because it said November 11 30th and I don't know what the power level was running and 12 so fo r th. I don't know what 60 days. It was not calendar s (u. - 13 days, full power days. Accepting that it has expired, let 14 me ask you about the mootness of the November 30th order. 15 It said at the end of it, if I understand it, something to 16 the effect that the licensee has agreed to additional 17 conditions which are necessary to provide reasonable 18 assurance for a period of 60 f ull power hour days. Does 19 that wipe out the whole November 30th order once that time 20 limit runs, in your view? ) 21 MS. FALK: In my views, I stated my first point [] 22 was but for the November 30th order, that plant would still i 23 be shut down. So I do not think that as a practical matter s' (~T / (7 24 that moots the November 30th order. I also think that 25. there's a longstanding body of law creating exception to 3 PEPPEY REPORTING CO. / 273-7308 j

s KAREN ROMAIN - RPR 29 1 mootness even if you wanted to argue as a practical matter V 2 the November 30th order is moot. That is where there's 3 compelling public interest and the situation repeatedly ~j 4 arises. There can be no question in anybody's mind here 5 the leakage problem is not solved and one that is 6 continuing to occur. 7 CHAIRMAN GROSSMAN: Well, that is another good 8 point you mention about the Marble Hill proceeding being an 9 enforcement proceeding. But doesn't or didn't the 10 Commission itself require that we ignore that distinction, 11 first indicating that Marble Hill was an enforcement 12 proceeding with a similar scope as this proceeding and then ( \\ ' A.) 13 requiring that we apply Marble Hill to this proceeding. In 14 other words, perhaps you can distinguish Marble Hill from 15 this proceeding in a vacuum, but we are not in a vacuum now 16 and the Commission has spoken and directed us to take 17 Marble Hill into account and has specifically referred to 18 the scope of this proceeding being similar to the scope of 19 the Marble Hill proceeding. 20 MS. FALK: I fully concur, Mr. Chair, you are 21 not in a vacuum and you're under certain directions from '~' 22 the Commission to take into account the Marble Hill 23 decision and I would not attempt to argue otherwise. p 24 However, I do think, as you have said, you are not in a 25 vacuum and things have changed since the Marble Hill 1 PEPPEY REPORTINE @@m / 272-T2@@

s' KAREN ROMAIN - RPR 30 1 decision was entered. I do believe the Commission in the ,3. 2 future force of time, if its going to change its face as it 3 has since Three Mile Island and other events, and if it 4 wants to change its perception in the minds of the public, 5 that it will reconsider Marble Hill at some point in ti.ne. 6 CHAIRMAN GROSSMAN: You are not suggesting now 7 that'because of any changes we can take it on ourselves to 8 not comply with the opinion of the Commission? 9 MS. FALK: No, I will not suggest that. I 10 believe yoi do have to comply with the Commission's order 11 to you. 12 CHAIRMAN GROSSMAN: I have no further questions O 13 of you now. Mr. Charnoff? 14 MR. CHARNOFF: Mr. O'Neill will respond to these 15 matters. 16 MR. O'NEILL: Mr. Chairman, we have submitted 17 our position in analyzing Marble Hill in our filing of the 1 18 28th. And I would like now to respond to the arguments 19 that have just be advanced by the Decade. 20 I think first we should point out that we would 21 disagree with Commissioner Bradford's characterization of i O 22 Marble Hill and with the characterization of the Decade. 23 The Marble Hill decision does not deny the Decade an ( 24 opportunity to advance its concerns to the Commission. 25 They just happen to be in'this instance in the wrong form. D .PEPPEY REPORTING.CO. / 273-7308

KAREN ROMAIN - RPR 31 1 The Decade has been form shopping for some time now both 2 within ' the State and Federal proceedings, and they did hava 3 an opportunity to advance these concerns before the 4 Commission under the Commission's rules in 2.206. And in 5 fact they advanced these same concerns and the Director 6 found that they were denied their petition. And they have 7 recourse to the Court. So it's not, I think, as characterized 8 by Commissioner Bradford a sham proceeding. 9 This is a very narrow question and a very narrow 10 proceeding with respect to a confirmatory order which is an 11 enforcement proceeding. If it's r,ot an enforcement 12 proceeding, I am not sure what it is where the order says 13 the licensee will not resume operation after eddie-current 14 examinations required to be performed in accordance with 15 conditions Ib or 4 unless the director has confirmed in ~ 16 writing that the results of the test are acceptable. And 17 the Commission as you pointed out, Mr. Chairman, in its 18 order indicated that it was an enforcement order with a 19 similar scope as in Marble Hill. 20 So I think we are looking at an enforcement ) '21 proceeding. It's not a licensing proceeding as you 22 mentioned in your introduction to this conference. The 23 Point Beach Unit I has received a license after a licensing 24 proceeding which allows it to operate for 30 years. Every l 25 time it shuts down for refueling or maintenance is not a i> PEPPEY REPORTING CO../ 273-7308

KAREN ROMAIN - RPR 32 1 new action to allow it to go back up. But certainly the ) 2 Commission works informally, the Staff does, with the 3 licensee when some problems develop. That communication is 4 something that is encouraged and I think that's what the 1 5 Commission was getting to in Marble Hill. It wants to 6 continue to encourage that type of communication between 7 the staff and the licensee. 8 In responding I think perhaps I also should 9 bring up a very recent decision which buttresses the 10 Commission's decision in Marble Hill as to the authority of 11 the Commission to narrow the scope of a proceeding on a 12 license amendment. Of course Section 189 of the Atomic ~ 13 Energy Act does afford a petitioner whose interest may be 14 affected to request a hearing. But that doesn't mean every 15 time a hearing request is made that the petitioner gets a 16 hearing. And that is what Marble Hill is all about. 17 And in Marble Hill the Commission cited to an 18 EPA administrative decision in a FIFRA action. Federal l 19 Insecticide, Fungicide and Rodenticide Act of I believe 20 1947. In that action the administrator denied the ) 21 Environmental Defense Fund an opportunity for a hearing in b 22 a proceeding under tha't particular ~ statute under EPA's i 23 regulations on restricting the use of a product containing 3 ('T (][ 24 chlorobenzalate. i 25 In that particular oroceeding the administrator

J PEPPEY REPORTING CO. / 273-7308 i

s KAREN ROMAIN - RPR 33 s I found that where the Environmental Defense Fund was arguing ) ,s.1/ 2 that the restrictions imposed by the administrator were too 3 lenient,-'that is did not go far enough, that is che action 4 was not su.fficient in the Environmental Defense Fund's mind, 5 they did not have the right to a hearing in that particular G action on July 17th. 7 And we did not have this decision when we filed 8 our papers on July 28. The Court of Appeals for the 9 District of Columbia upheld the administrator's decision in 10 the Environmental Defense Fund case. And I might cite the 11 docket number and the date of the decision for your review 12 in this matter. It's docket number 79-1971 and 79-2133

O 13 decided 17 July, 1980.

j l 14 In that case the D.C. Circuit Court of Appeals 15 held that the Environmental Defense Fund here was not i 16 adversely af fected by the portion of the notice that 17 canceled and restricted the chlorobenzalate uses. And it 18 was not entitled to hearing respecting the retention 19-portion. And concluded the administrator correctly denied 20 the Environmental Defense Fund hearing request. 21 In that particular case as Decade here, the 22 Environmental Defense Fund was arguing the order didn't go 23 far enough. They argued against agency inaction in the /~T (}yl 24 Environmental Defense Fund's words. And the Court and the 25 administrator held the regulations EPA had established for PEPPEY REPORTING Co. / 273-7308

3 KAREN ROMAIN - RPR 34 ,,e' 1 determining when under the statute a party had an V:, 2 opportunity for a hearing because their interests were 3 adversely affected, that the administrator could look at () V 4 the particular proceeding, the particular order and in that ) 5 particular case see if some party's interest was adversely 6 affected. And in that case as here, where Decade is 7 arguing basically that the Commission hasn't gone far 8 enough, their interests are not adversely affected and that 9 really reenives the issue here. 10 I might also point out that Environmental 11 Defense Fund -- indicated that Environmental Defense Fund, 12 Inc. was not denied an opportunity to take an alternative sd, 13 action, that is under another Section of the administrator's 14 or the EPA's rules to appeal for a cancellation of all use '15 of that particular chemical and if they were denied that 16 appeal, to go to the Courts. 17 Decade has the same right here under the 2.206 ? 18 action. They have been denied twice. Once with respect to 19 Point Beach Unit 1 and once with respect to Point Beach 20 'Jnit 2 on the same issues. 3 21 CHAIRMAN GROSSMAN: Ms. Falk, is there any O 22 question but that you are not raising any issue other than -23 that the order did not go far enough in this case. Now I ) C'J -(}y 24 understand that you have pointed to that temperature 25 differential in support of your position on standing, but ) PEPPEY REPORTING CO. / 273-7308

l ,s KAREN ROMAIN - RPR 35 (^) 1 now I want to know for sure as f ar as the actual issues km/ l 2 that you are raising, I want to be sure that you are not r3 3 raising any issue other than that the confirmatory order (/ 4 did not go far enough. 5 MS. FALK: Your understanding is correct. We 6 make the distinction the cases have from standing and 7 appearance. 8 CHAIRMAN GROSSMAN: Thank you. Mr. O'Neill. 9 MR. O'NEILL: Let me briefly address the issues 10 that Decade does raise. And I am a little confused about 11 how they can raise an issue with respect to standing. But 12 not be one of the issues in which they are concerned which 13 they say adversely affects their interest for purposes of a 14 hearing they request. 15 The order does not reduce the temperature in the 16 hot leg of the system. It simply does not. That is not _ art of the agency action which they would request'a 17 p 18 hearing on. The Company on its own is operating the plant 19 at 80 percent power instead of 100 percent power. 20 Operating at 80 percent power reduces the hot leg ) 21 temperature to about what the cold leg temperature would be 22 at 100 percent. The reason for that was because it was 23 obcerved the steam generator tube degradation occurred only (^' /") ) 24 in the hot leg. Thereby a possible solution was to reduce

1. -

25 the temperature in the hot leg to the temperature of the 1 1 PEPPEY REPORTING CO. / 273-7308

s KAREN ROMAIN - RPR 36 g3 1 cold leg where this problem had not been observed. I think !\\/ 2 so far the Commission indicated in its last safety 3 evaluation report with respect to the April 4th order it -bg 4 was their view this may well be a successful strategy. 5 That was not part of the order. That's not something that 6 is before, I believe, this Board. 7 CHAIRMAN GROSSMAN: Mr. O'Neill, is it your view 8 that the injury that may be incurred in order to provide a 9 basis for standing must result from an actual issue raised 10 by the petitioner, or can it merely be a result of the 11 action that would be taken as a result of the proceeding, 12 even though not directly connected to contention raised by D/d 13 a petitioner? 14 MR. O'NEILL: The injury must result directly 15 from the order of in this case the NRR. The restrictive 16 part of the license. Must result from that restriction of 17 the order. 18 CHAIRMAN GROSSMAN: There's no question about 19 that. Now are you also saying that the injury must also 20-result from an issue raised by the particular petitioner ) 21 rather than merely result from the action itself? Do you A\\J 22 follow what I am saying? 23 MR. O'NEILL: It's a rather interesting ) f-f] 24 proposition as to whether one can assert standing by 25 suggesting there's an injury that they are not concerned ) PEPPEY REPORTING CO. / 273-73@@

KAREN ROMAIN - RPR 37 'l enough about to raise as a contention in the proceeding. I gS \\b<l' 2 guess as a practical matter it's hard to see where that 3 situation ever comes up, though Decade seems to have taken 4 that position. 5 I guess I find it more confusing than perhaps in 6 a position to give you a statement as a matter of law 7 whether that is something that would get their foot in the 8 door for purposes of standing. Then they could drop that 9 contention and go off on other ones. Of course again you 10 can't really bifurcate the question of standing and the 11 question of issues in this proceeding because the 12 proceeding is very narrowly defined to sections two and ~% . f(%) 13 three 'ba* order and whether the order should be 14 sustained. 15 That gets you right back to the particular lu issues that are right for any discussion or any proceeding 17 with respect to this order. Ac a theoretical matter ? 18 presumably someone could assert standing, alleging that 19 they have been injured by a restrictive condition to this 20 license, get in the door and then raise contentions that ) 21 also go to the narrow issues in which this proceeding could OkJ 22 be held and maybe drop that original contention in which 23 they were able to allege injury. It's an interest'ng ' r^g. dY/ 24 theoretical position. s.- 25 CHAIRMAN GROSSMAN: You would say it's all ). PEPPEY REPORTING CO. / 273-7308

3 KAREN ROMAIN - RPR 38 1 academic anyway if they haven't raised an issue within the 2 scope of the proceeding. They haven't satisfied another 3 3 requirement of standing, notwithstanding they perhaps could 4 be considered as possibly suf fering injury as a result of 5 the proceeding. 6 MR. O'NEILL: I guess I really want to focus on 7 the question that this particular allegation of injury goes 8 to an action that was taken by the licensee not ordered by 9 the Commission, that they could take under their original 10 license. Not part of any restriction. And if they are 11 aggrieved on that, if they suggest the Company should not 12 be allowed to operate under 80 percent power instead of 100 <O 13 percent power, of course they can go to the Commission 14 under 2.206 and argue the Company shouldn't be allowed to 15 operate at 80 percent power. That does not go to a 16 restriction on their license by the November 30th 17

confirmatory order or by any other order of the NRR.

? 18 The second issue that was raised by Decade was 19 with respect to the dif ferential pressure. And let me get 20 into that discussion. Mr. Tremmel on that proceeding was 3 21 arguing in favor of what effectively was the January 3rd 22 modification. That is, he argued that it made sense to 23 reduce the primary system pressure because the Company had . O h-/ 24 decided to operate at 80 percent power. The Company in v 25 fact had some years ago operated at primary system pressure S PEPPEY REPORTING CO. / 273-7308

1 KAREN ROMAIN - RPR 39 .%} of 2000 psi before and raised back up to 2250. And he was ,(~ 1 _/ 2 suggesting it makes sense for the Company to operate at (3 3 2000 psi because it would put the differential pressure %/ 4 across the steam generated tubes the same pressure the 5 plant would see at 100 percent power, 2200 psi. And that 6 therefore operating at 80 percent had the effect of 7 increasing the differential pressure across the steam 8 generator tubes and this was one thing that could be seen 9 as not desirable given the steam generator tube degradation 10 problem. 11 Consequently on January 3rd the Commission did 12 order an additional restriction on the licensee; that is, iv 13 to operate 2000 psi. This in scrething we volunteered to 14 do and suggested it would be another action we could take 15 to ameliorate this problem. We are at a loss again to see 16 how Decade can assert injury, as the Staff pointed out in 17 their paper, from an action that goes to ameliorate q; 18 something they contend might be a problem. 19 They also indicated that, in quoting from I 20 think the transcript, when you lower the pressure it ) l 21 changes some of the safety analysis with respect to ) 22 accident considerations. Again, of course in the SER that 23 accompanied the January 3rd order, the Staff indicated that J(~) (]; 24 had it gone through once again the safety analysis as it 25 'had done before in previous times that the licensee reduced 3 PEPPEY, REPORTING _CO. /.273-7308

7 KAREN RCMAIN - RPR 40 1 the primary system pressure to 2000 psi, and found that the 2 difference in the maximum temperature-that could be seen 3 under certain acts and conditions was maybe in the order of 4 nine degrees, which was insignificant given the temperature 3 5 we are concerned about. Of course in other considerations 6 reducing the pressure would once again under worse 7 conditions alleviate some of the considerations that you 8 might have. 9 So again, we don't believe the Decade could 10 assert injury from reducing the pressure to 2000 psi. We 11 once again remind you reducing the pressure to 2000 psi is 12 not part of the November 30th order in which they have i 13 requested a hearing and also is not a matter of one of 14 their contentions. 15 I would like to summarize by again noting that ) 16 the Company has a license to operate the plant. And as of 17 November 30th was in a position to start up the plant and 1 -3 18 operate it. The November 30th order was a restriction on 19 that_ license. They were not able to do things they would 20 have been able to do the day before. And consequently the <] 21 only thing'that the Decade, as I think they just admitted, O 22 are alleging here is that the Commission did not go far 23 enough. - 24 The only issue before this, Board as we read the 25 Commission's order is whether or not in applying Marble- ') PEPPEY REPORTING Co.. / 273-7308~

3 KAREN ROMAIN - RPR 41 1

Hill principles there should be a hearing. Applying Marble 's p(f) ~ 2 Hill principles as supported by the very recent decision of 3 the District of Columbia's Court of Appeals and the EPA 4 context, we think that clearly the allegations made by the 5 Decade do not allow them to claim they are adversely 6 affected by the confirmatory order and they are not 7 entitled to hearing. 8 That doesn't mean they are without an 9 opportunity to press whatever claims they have. I think it 10 interesting that counsel for the Decade said we are concerned 11 about the generic problems. If they are concerned about a 12 generic problem, perhaps they would like to go to the D m,) 13 Commission on a generic proceeding, a rulemaking proceeding. 14 They don't have a right to hearing under the applicable law 15 with respect to this November 30th confirmatory order. 16 COMMISSIONER VENN LEEDS: Mr. O'Neill, I think 17 you said at the beginning and now you have summarized and 18 said again it's a very narrow question. Would you mind 19 saying to me what your view is of the narrow question we 20 are litigating or discussing today? i 3 21 MR. O'NEILL: I think the Chairman stated the I () 22 question this morning, which I took down very carefully. 23 That the main order of business is to determine how the .Hf 24 principles in Marble Hill are to be applied, and I think ue 25 that's exactly what we are doing. We have taken a t) PEPPEW RE9@RRAM@ @@m./ 272-7%@@

s KAREN ROMAIN - RPR 42 f-1 confirmatory order, a request for a hearing on that order. k,S) 2 That order has issues in the event a hearing would be 3 ordered, what could be litigated. And Marble Hill se.ggests 4 how a petitioner can come in and show it's adversely 1 5 affected. And what kind of a petitioner is entitled to a 6 hearing on that order. That's the only thing we are 7 litigating here today. Not whether or not some of the more 8 broader issues that have been suggested by Decade are valid 9 concerns, not whether Marble Hill is a correct statement of 10 the law which I think it is. But only this rather narrow 11 question, and I think we have to focus just on that. 12 CHAIRMAN GROSSMAN: Thank you. Could you tell O 13 me why in your opinion the Commission established or 14 requested that the Atomic Safety and Licensing Board be 15 established to consider this issue if everything you say is 16 correct and the result appears to be predetermined? 17 MR. O'NEILL: Well, I think this is consistent 12 18 with Commission practice to turn these over to Licensing 19 Board. And I think they gave Decade an opportunity to 20 argue Marble Hill, which the Decade didn't do. They could i) 21-have come in and attempted to argue, given

r. 5 = opinion by (3

\\# 22 the Commission as to what principles were going to be 23 applied. How their interests might be adversely affected, s (]7 24 CHAIRMAN GROSSMAN: What did the Commission do 25 in Marble Hill? Didn't it just dismiss the petition? O PEPPEY REPORTING CO. /.273-7.308

s KAREN ROMAIN - RPR 43 1 MR. O'NEILL: I think the Commission established (t'Nh) 2 a policy once they have established the policy, they would 3 like to turn it to the Boards to make sure the policy is 4 carried out rather than reiterating themselves over and 5 over again. That's all speculation as to why the 6 Commission did what it did in that matter and why it does 7 what it does in many proceedings. 8 CHAIRMAN GROSSMAN: Okay. Thank you, Mr. 9 O'Neill. I would like to hear from the Staff. Could you 10 first answer that question? 11 MS. CYR: I would agree it's speculation. Our 12 view is once they have set forth the policy in Marble Hill 13 in the context of enforcement proceedings what the 14 standards will be for determining standing to request 15 hearings as of right in those proceedings, that now they 16 want this to go before Licensing Boards because the issue 17 may be coming up more. We have had several others requests 18 in. other situations where we have had people request 19 hearings, not licensees. And this is going to be taking 20 place now and perhaps in terms of a conservation of ) 21 resources mechanism. Because the Licensing Boards and the (G ./ 22 people who normally make the determinations in terms of 12 3 standing, once they have set forth the principles in the ' '( y) 24 Marble Hill case, the Licensing Board should be in a 25 -position or can be in a position to make that determination. ') PEPPEY REPORTING CO. / 273-730@

KAREN ROMAIN - RPR 44 1 In enforcement cases as well. -) W 2 CHAIRMAN GROSSMAN: Once they stated that the 3 principles of Marble Hill should be applied, wasn't the 4 result preordained. Didn't they have the full merits 5 before the Commission so that the Commission could just in 6 one sentence dismiss the petition, as it did !n Marble Hill? 7 Aren't we being asked to perform an administerial act here? 8 MS. CYR: I really don't know. It may well be 4 9 they may feel they did not have time to evaluate all the 10 contentions that had been raised in the filings submitted 11 by Decade. And the Staff. And in terms of their time to 12 evaluate those. They determined this was an enforcement O 13 case and someone who is not a licensee as in Marble Hill 14 requested a hearing and Marble Hill principles should be 15 applied. Therefore they directed the Atomic Safety and 16 Licenses Board to make the determination on the principles 17 of Marble Hill. 18 COMMISSIONER VENN LEEDS: As you read Marble 19 Hill, does it say that the petitioner has no right to a 20 _ hearing if the only thing he's arguing is you didn't go far ) 21 enough? 22 MS. CYR: Yes, that's what Marble Hill stands 23 for. That the person who wants to request a hearing as of ,J ( 24 right has to have been adversely affected by the actions 25 ordered. If they are concerned about seme acts not taken 4 3 PEPPEY REPORTING CO., / 273-7 %8

y. KAREN ROMAIN - RPR 45 s-1 by the Commission, they must pursue other avenues. That we b] 2 provided other avenues for petitioners to seek actions by 3 the Commission through 2.206 petitions. And that the 4 proceeding which would take place on enf3rcement order has 5 to do with the harm that comes from the pecific actions 6 ordered by that enforcement action. 7 COMMISSIONER VENN LEEDS: I am having trouble to 8 try and envision the situation where if that's the reading 9 of Marble Hills there would be a hearing. 10 MS. CYR: Usu111y when we have an enforcement 11 action, the person aggrieved is the licensee. We are 12 placing the restriction to the licensee, previously given ~O 13 authority to operate his facility. And that's primarily 14 the direction of what the 189, in terms of the licensee, 15 giving him a chance to remedy a harm that he feels he's 16 aggrieved by when you' re taking enforcement action which is 17 restricting his rights. 18 If there are other people who happen to be 19 somehow injured by that enforcement action, that 20 restriction placed on the licensee by the Commissic.. then ) 21 they also have the opportunity. But I think that's the O 22 . reality of the situation that occurs in enforcement kinds 23 of proceedings as opposed to licensing actions, where you j/ f]7 24 don't have a preexisting license. You're authorizing some' 25 action to take place. Here.we have already authorized the .)- (_ PEPPEY REPORTING CO / 273-7308

1 KAREN ROMAIN - RPR 46 1 Company to operate the plant and now placed restrictions on ) 2 that ability to operate the plant. And the licensee is the 3 73 person who normally is the one who will be aggrieved und V 4 normally will have a right to hearing and can demonstrate 5 somehow he's aggrieved by the action taken by the Commission. 6 COMMISSIONER VENN LEEDS: Can you think of atty 7 example where a party other than a licensee would succeed 8 under Marble Hill? 4 9 MS. CYR: There might be some action which the 10 Commission would order which would involve say trade-offs 11 between environmental and health and safety concerns. And 12 someone might argue that whatever action the Commission O 13 ordered had some detramental effect on the environment and 14 they were inj ured by that action. And therefore the 15 Commission should grant them a hearing because their 16 interests which are cognizable have been injured and the 17 Commission should consider their harm, the harm, and 1 18 basically reconsider their acts. Whether the order should 19 be sustained in light of the harm now demonstrated. 20 COMMISSIONER COLE: Couldn't it also be

)

21 construed the Commission didn't go far enough in protecting i 22 the environment? ( 23 MS. CYR: If they could demonstrate -- no, I ((y)- 24 think the issue before the Commission would be then in 25 light of the harm which that person has demonstrated, 1 PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 47 g-} 1 should their order be sustained. Not whether they should . _ b 2 take affirmative action to protect the environment. But rg 3 whether the action they took, given the harm it caused this 'v' 4 person is demonstrated in the proceeding, to that person 5 whether the order should be sustained. Because it has this 6 other effect which harms an interest which is cognizable of 7 that person. Not whether we should go on and take positive 8 steps to protect the environment. Whether or not we should 9 go in and order some additional. The proceeding on the 10 enforcement action taken would not be the place to impose 11 conditions, further conditions on the licensee to protect 12 the environment, but it would be to determine whether the 13 actions ordered should be sustained in light of the harm to 14 the environment. 15 If you determine the order shouldn't be 16 sustained by the Commission, the Commission would have to i 17 go back and rethink the action it ordered and perhaps not 18 only reimpose the applicable safety concern, but also 19 impose a condition which would remedy the environmental 20 harm which had been discussed in the context of the ) 21 proceeding. O 22 MR. O'NEILL: May I address that question, Dr. 23 Leeds. The Court of Appeals of the District of Columbia '(~) (';f 24 discussed that very issue with respect once again to the 25 EPA proceedings. Environmental Defendse Fund made the same 3 PEPPEY REPORTING CO. / 273-7308

4 KAREN ROMAIN - RPR 48 1 suggestion. Well, if that's the way you interpret the law, 7(-) Qv' 2 how can intervenors ever get in? 3 COMMISSIONER VENN LEEDS: I was trying to ask a 4 question. But I was not trying to say that was a fact. ) 5 MR. O'NEILL: I understand. In that case the 6 court of Appeals upheld the administrator's position in suggesting that it's true that where the action of the 8 administrator is only to further restrict a license, that 9 rarely will some intervenor be able to get in other than a 10 user, and in that case it may well be that the user of the 11 herbicide or pesticide is more concerned about it being 12 taken off the market than the manufacturer who may see it <O 13 as a harmful product in any event. So the user could be 14 adversely affected.by the administrator's action and come 15 in under that context. 16 I think we might make an analogy here. The 17 Public Service Commission or the' State of Wisconsin might 18 assert that some Commission order which further restricts 19 the operation of the plant casts adverse effects to the 20 interest of the State because it's going to increase the ) 21 cost of electricity. They might be able to assert that O 22 type of interest and thereby meet the standing test under 23 Marble Hill. ( 24 COMMISSIONER VENN LEEDS: Because you are saying 25 less power production -.

)

PEPPEY REPORTING CO. / 273-73@8

KAREN ROMAIN RPR 49 1 MR. O'NEILL: That's correct. . -) _ kk / 2 COMMISSIONER VENN LEEDS: And so could a citizen? 3 MR. O'NEILL: Absolutely. 4 MS. FALK: Mr. Chairman, I would like to object ) 5 at this time to the private discussion Mr. O'Neill is 6 having with himself and I don't know who else, because I 7 was not given a copy of the decision by him that has just 8 come out. I know an old practice of Judges in a case where 9 counsel springs an unreported decision on other counsel at 10 a Judge's oral argument is to chastise counsel for doing 11 that. That they are to bring a copy for other counsel, so 12 I can see it. So I would like to object for the record. ( 13 MR. O'NEILL: I have read this on the plane on 14 the way here. And beyond that, it's decided in the Marble 15 Hill decision. And I am sure counsel can shepardize and 16 find out as our office did a decision had just be handed 17 down on the particular case cited in Marble Hill which of 3 18 course is one of the things they cited for the proposition 19 they adopted Marble Hill. So I don't think there's any 20 unfair advantage to whether or not our office was able to ) 21 obtain this copy a little more quickly than Ms. Falk. If I O-22 had had it before we filed the brief on the 28th, we would 23 have cited it in there. We just did receive it. It was ) ( 24 only handed down the 17th of July. 25 CHAIRMAN GROSSMAN: Ms. Cyr, before you proceed PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 50 1 on the merits, I did want to go into one other procedural %q s ) 2 matter. You seem to imply in one of the footnotes that our f-3 setting this Prehearing Conference suggests that perhaps we b) 4 were thinking in terms of setting a hearing in this 5 proceeding. And you are'very quick to caution us that that 6 may not be the appropriate thing to do. But my question is 7 whether we have any other course of action we can take. 8 MS. CYR: I don',t think you could have styled 9 anything. Probably there's no other thing you can call it 10 other than Prehearing Conference. You are to consider 11 whether a hearing should be held. This is not a licensing 12 case. That was mostly our concern, was that it be seen an - (O '%) 13 enforcement case and different kind of an action than a 14 Prehearing Conference which is held in context of a 15 licensing action. 16 CHAIRMAN GROSSMAN: But there's no question in 17 your mind but that we had to have a conference? 3 18 MS, CYR: Some kind of conference whereby you 19 could hear the views of the parties. 20 COMMISSIONER VENN LEEDS: Doesn't it also happen 2 21 in licensees sometimes you have prehearing conferences and 22 it turns out there's no hearing? So that's the same 23 situation there, isn't it? !D {;f 24 MS. CYR: Right. 25 COMMISSIONER VENN LEEDS: Nothing different here. 3 PEPPEY _ REPORTING..CO.,_[. 273-73@8

s. KAREN ROMAIN - RPR 51 1 MS. CYR: No. ,(",3 y, ' 2 CHAIRMAN GROSSMAN: Okay, proceed. 3 MS. CYR: I just want to respond to a couple of 4 issues raise by Decade. One, I think, is this is an ,3 5 enforcement proceeding, not a licensing. The issue is not 6 adequacy of the license. What the issues are is whether 7 they can establish injury from the specific ections and 8 restrictions imposed by the Director on the license. 9 The Director's order of November 30th did not 10 authorize the Company to resume operation. It imposed 11 restrictions on that operation. The Company already had a 12 preexisting license to operate the facility. They may have <O 13 entered into some kind of agreement with the Staff in terms 14 of its ongoing daily communication with the Staff they 15 wouldn't operate until we issued some written approval. 16 That written approval, once we reviewed the issues coming 17 to us, need not have been in the form of an order. We 2 18 could have written-an order saying we have reviewed the 19 issues, now resume operation. We didn't have to authorize 20 them to resume operation. We decided when they began 3 21 operating we continued certain additional restrictions on O-22 their ability to operate. That's what the November 30th 23 order did was impose restrictions. If the Company had 3 (J;,) 24 operated and we felt they should not be, we would have had 25 to take affirmative action to stop them operating. We 3 PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR-52 1 would have been forced to issue an order to sustain their 4-] 2/ 2 license, because they had a preexisting authorization to 3 operate that plant. 4 The only other thing I wanted to reiterate was 5 the fact the hot leg temperature was not an action ordered 6 by the director. That was an action taken by the licensee 7 within the confines of its preexisting authority to operate 8 the plar t. Not one of the conditions imposed or directed 9 by the director. 10 CHAIRMAN GROSSMAN: But do you agree as I 11 believe was suggested by the licensee that was a natural 12 result of the restriction placed on them? O' 13 MS. CYR: I don't know. It was not. The 14 restriction in the November 30th order went primarily to 15 testing requirements, to restriction and what point they 16 would shut down if there existed a leak. There were going 17 to be stricter triggering points in time at which time they 18 would shut down the plant. The reduction in hot leg 19 temperature was an action they took in part of their 20 overall plan that they wanted to reduce the problems from J 21 steam generator tube degradation. It wasn't a natural 22 result of anything we ordered. It was an optional action . 2:3 they chose to take. (}-j 24 CHAIRMAN GROSSMAN: Perhaps I misspoke on that. 25 Could you clarify that for me, Mr. O'Neill? PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 53 l MR. O'NEILL: Yes, sir. I believe it went the 7 -} \\./ 2 other way. The second order, that is the order which 3 reduced the primary system pressure to 2000 psi, naturally N3J 4 followed from the self-imposed operating restriction of 80 5 percent power. So it wasn't the 80 percent power followed 6 from the restrictions imposed by the Commission which 7 generally went to how long we could operate without doing 8 testing to insure that the steam generator tubes continued 9 to maintain their integrity. 10 CHAIRMAN GROSSMAN: Okay. Anything further? 11 MS. CYR: I have nothing further. 12 COMMISSIONER VENN LEEDS: I want to ask a couple

O 13 questions that I am not clear aoout.

If I remember 14 correctly, the November 30th order had a sentence in it 15 something to the effect that if a hearing is requested, 16 then that hearing will be restricted to consideration of a 17 couple of items. Namely one was whether the facts in a 18 couple sections are correct and whether this order should 19 be sustained. And the Section cited I think two and three 20 or something like that, merely listed the fact that certain -) 21 things had been observed and certain letters written, O 22 certain things had to be done. It was observed certain 23 things -- we all have it. Essentially it didn't have any 3 . ([]j 24 technical facts or anything like that in it. 25 Is your view the only possible hearing is i) PEPPEY REPORTING CD. / 273-7308

KAREN ROMAIN - RPR 54 1 whether or not those facts specifically listed in those b); y 2 sections is the only thing that could be hearing held on or 3 is it a background support on those facts, the technical g3 V 4 basis for example. Maybe I am not making myself clear. 5 MS. CYR: I think it includes sort of the 6-background information referred to in those sections. Not 7 just whether somebody wrote a letter or not. But whether 8 the basis which is referred to in sections two and three 9 for the Commission's decision to impose the restrictions, 10 whether if we had a hearing on those, the basis and the 11 information which the Staff relied on in deciding to impose 12 the restrictions serves as an adequate basis to sustain the ('y ) 13 action. Not the fact somebody wrote a letter on November 14 29th. 15 COMMISSIONER VENN LEEDS: It was determined 16 additional operating conditions would be required. Not a 17 question of whether or not additional conditions would be 18 required, although the applicant might litigate that. You 19 could also look at whether or not those conditions in 20 themselves were sufficient. ) 21 MS. CYR: No, I don't think that's true. The [') '~' 22 only issues are you can look at the facts in two and three 23 to determine whether they are correct. To determine J ) t ' ;' 24 whether they provided a basis for sustaining the action or a 25 not sustaining the action. 3 PEPPEY REPORTING CO. / 273-73@8

. 1 KAREN ROMAIN - RPR 55 ) 1 COMMISSIONER COLE: The actions are those

/

s 2 actions described in Section four? 3 MS. CYR: Right. 4 COMMISSIONER COLE: And you're including in ) 5 Section two the November 23rd, '79 letter of Den *- ? 6 MS. CYR: Right. 7 COMMISSIONER COLE: And the safety evaluation of f 8 November 30th? 9 MS. CYR: Right. 10 CHAIRMAN GROSSMAN: Okay. Now before we go back 11 to Ms. Falk, does the State of Wisconsin have any comments 12 to make? -O 13 MR. WALSH: Yes, Mr. Chairman. It's our opinion 14 Marble Hill imposes fairly strict standing requirements on 15 the Board that they have to apply. But that if the 16 intervenor meets that standing requirement, then the 17 Board's discretion is fairly broad. In order to get at the 18 issues they are trying to address. 19 What's clear from the discussion we have heard 20 today is that the Commission's orders so far, the licensing ) 21 requirements that they have imposed are basically shots in Ov 22 the dark. They haven't fixed the problem and in fact as 23 alleged by the Decade may have actually aggravated the ,' (~'; ('[ 24 . problems at the plant. So I think Decade has met their ~w 25 standing requirements. They have shown at least in l PEPPEY REPORTING CO. / 273-7308

3 KAREN ROMAIN - RPR 56 ,fS 1 principle they may have been injured by decreased safety at (,) 2 the plant due to the order that the NRC has imposed on the 3 licensee. (seq 4 COMMISSIONER VENN LEEDS: Are you saying the 5 order that the NRC imposed on the licensee reduced the 6 safety of the plant? 7 MR. WALSH: I think that's what the Decade is 8 alleging as far as injury. In that the order, when it 9 ordered that the pressure be reduced, may have aggravated 10 the conditions. May have increased the rate of degradation 11 at the plant and therefore based.on their considerations of 12 safety that they have raised, may have actually decreased ) 13 the safety potential of the plant. I think that's what 14 they are saying. I guess you would have to address that to 15 them. That's the way I understand the injury they are 16 alleging to meet the standing requirement. 17 In the Marble Hill case, the Commission made a 18 finding that in fact the order of the Commission improved 19 safety or did not improve safety. I might be saying it 20 unclearly. But here I think their allegation is such they ) 21 are saying that in fact the Commission did a counterproductive O

22 act when it ordered the licensee to lower its pressure.

23 And what that shows I think, first of all, is that at least ([ 24 that should be addressed. I think they have met that 25 that's an aggregation. We are not taking a position i i) PEPPEY REPORTING CO..( 273-7308

I KAREN ROMAIN - RPR 57 g3 1 whether it's correct or not. Certainly an aggregation that ' he' 2 should be addressed by the Board. 3 The second point is if in fact that's true, what 4 naturally comes from that is that the Commission doesn't ) 5 understand the problem. And that in fact I think this 6 Board'as the adjudicators of the situation should have a 7 hearing if only to see whether or not the Staff actually 8 understands the problem they are attempting to find 9 solutions to. And so from our position, I think they have ? 10 met the standing requirements of Marble Hill and in fact 11 once they have met that, I think the Board has much more 12 discretion in terms of what problems are to be looked at. 13 And certainly they as the adjudicators should 14 determine that the Staff has a good technical basis for 15 what it's ordering. If it really is shooting in the dark 16 and is causing the plant to operate such as to aggravate 17 the problem, I think that's certainly an allegation that 18 needs to be addressed. 19 CHAIRMAN GROSSMAN: Aren' t you omitting the next 20 sentence in the Commission's order, other than the one ') 21 following the requirement that we apply the principles set 22 forth in Marble Hill? The sentence that says, If the 23 ~ Board determines that a hearing is required, the Board is ' ("% /\\~r# 24 instructed to conduct an adjudicatory hearing solely on the a 25 issues identifying the order."

)

PEPPEY REPORTING CO. / 273-7338

KAREN ROMAIN - RPR 58 1 MR. WALSH: I think within the scope of that 2 particular question which is whether the requirements 3 imposed by those orders are in fact improving the situation 4 at the plant or decreasing the problem, I think as it was 5 stated if the intervenors get access to background 6 information to try and understand what technical expertise 7 the Staff is applying to make those decisions, I think they 8 can have many of their contentions solved or at least the 9 technical expertise of the Staff can be questioned. 10 So within the context of that particular 11 question, I think if the ruling of this Board is that the 12 background information the Staff has on the question as 7_ (Lb 13 well as the licensee is available to the intervenor, I 14 think the proceeding can meet the objective that the 15 Commission has required and still provide a broad enough 16 basis to determine exactly what's the situation. What's 17 going on at the plant. 18 COMMISSIONER VENN LEEDS: Mr. Walsh, have you 19 asked for any information from the Staff? 20 MR. WALSH: I personally have not. ) 21 COMMISSIONER VENN LEEDS: Has State? O 22 MR. WALSH: Has the State? I think the Public ~ 23 Service Commission has. But I don't represent them. ' A / (7 24 COMMISSIONER VENN LEEDS: Did the Staf f deny it? 25 MS. CYR: I don't think they have. I don't know. J. PEPPEY REPORTING Co. / 273-7308

KAREN ROMAIN - RPR 59 gS 1 I know they have asked the licensee, the utility, for some ~/ 2 information. 3 MR. CHARNOFF: The public service Commission has 4 asked us to file with it all copies of everything we file 5 with NRC. We have done that. They have gotten everything 6 we know of that anybody has ever asked for. So too has the 7 Decade. 8 COMMISSIONER VENN LEEDS: Isn't there a public 9 room? ? 10 MR. CHARNOFF: There are two, I believe. 11 COMMISSIONER VENN LEEDS: I thought I remember 12 seeing a service to a public document room. <O 13 COMMISSIONER COLE: Does anybody know the 14 address of that? 15 MR. ANDERSON: I believe it's the library in the 16 City of Manitowoc. 17 CHAIRMAN GROSSMAN: We have someone in the i 18 audience. 6-19 FROM THE AUDIENCE: The City of Manitowoc Public 20 Library does receive certain of the information. The ) 21 correspondence, the IE bulletins, things like that. The O' \\ 22 Two Rivers Public Library I believe has recently agreed to 23 take over the public documents room for Point Beach which ,' ('8 (>;[ - 24. was located at Stevens Point, Wisconsin. I think that can 25 still remain there and we will receive one in Two Rivers. 3 PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 60 ,r3 1 The Kewaunee Public Library also receives Point Beach's ~ \\,) 2 materials. So you can take your choice. eg 3 CHAIRMAN GROSSMAN: Would you give your name, U 4 please, for the record? 5 MS. SAGER: Mollie Sager. I live in Manitowoc. 6 CHAIRMAN GROSSMAN: You are not involved with 7 those libraries, are-you? 8 MS. SAGER: No. 9 CHAIRMAN GROSSMAN: Okay. Before we get on to 10 your second point, Mr. Walsh, I notice there's been a stir 11 here with regard to what appears to be an important issue 12 as to whether any injury would result from the confirmatory 7_ 'M 13 order. Did either the Staff or Mr. O'Neill wish to comment 14 further on that? 15 MR. ANDERSON: Perhaps before they do, I can 16 make an interpretation of our position. The position of 17 the Staff representative, as we understand it, at the 18 January 2nd meeting of the full Commission earlier this 19 year, was by reducing pressure you reduce the subcooling of 20 the reactor core. In terms of reducing the pressure ) 21 difference between the wall of the tubes and steam ob 22 generator. On making that balancing position, the 23 Commission Staff, I think if I understand it correctly, and A -(\\ i 24 they can speak for themselves next, felt that the 1' v 25 subcooling problem was outweighed by the importance of ) PEPPEY REPORTING CO../ 273-7308

'7 KAREN ROMAIN - RPR 61 1 reducing the pressure stress across the wall and came out 2 after making that balancing decision saying okay, it's 3 better to do it one way than the other. O V 4 But they did say, as quoted in our brief as read 7 5 by Ms. Falk, the subcooling in the reactor core is 6 adversely affected. I think the question of fact does not 7 speak to who is right, but whether there's arguable injury. 8 I think that's what should be the starting point of the 9 discussion. 10 CHAIRMAN GROSSMAN: In other words if I 11 understand your position, the change in temperature is a 12 direct result of the change in pressure and a change in '( 13 pressure is a requirement of the confirmatory order. 14 MR. ANDERSON: Of January 3rd. Of the second i 15 confirmatory order as opposed to the first. 16 CHAIRMAN GROSSMAN: Okay. But that one results 17 from the other or at least is some compensating action that 18 is taken because of the requirement, and that in your 19 opinion that is a result of the confirmatory order or the 20 modification of January 3rd on the confirmatory order and 40 l 21 therefore may result in some injury, notwithstanding that O d 22 the overall effect of that modification may be beneficial. 23 And therefore you don't chose to challenge that overall

3 24 modification, but nevertheless want to point to an aspect i

25 of that modification as causing injury.

O PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 62 1 MR. ANDERSON: If I could digress a second. The s, G 2 reason we are not pursuing in the contentions for any 3 hearing that will be held the issue of the pressure change 4 is not because we do not believe it's not an important r 5 issue. It is because we have to limit the number of things 6 you look at. We are making a priorization. We are not 7 saying we are ignoring it as a concern that exists in the 8 bottom of our hearts. If we had unlimited resources, we 9 would pursue. 10 Back to your question, we are not disputing the 11 fact there are arguments to be made on what the Commission 12 Staff did in weighing the pressure differential versus the )?n (_/ 13 subcooling is beneficial. We are saying there's an 14 argument in the other direction. The point of standing is 15 not to decide who is right, but that there is an arguable 16 harm involved. 17 MR. CHARNOFF: May I speak to that. I think 18 you're exactly correct, sir, in pointing out that Decade is [ 19 not charging that particular condition from a safety 20 standpoint. First let's point out what the record does l l 21 show in the papers they refer to. ( )# 22 That the calculated peak temperature of 2007 23 degrees under accident conditions would go up nine degrees, (]) 24 2007 to 2016 with the maximum permitted temperature to be 25 2200 degrees. That particular nine degree increase was PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 63 l 1-characterized by Trammel before the Commission. Trammel is u> 2 a Staff reviewer who made the presentation to the 3 Commission on January 2nd, I believe it was. O 4 Secondly, I think as you pointed out, the 5 Commission's order said to limit it to the issues if there 6 were to be a hearing set forth on the November 30th order, -7 and the two issues there are whether the facts stated 8 including the underlying documents discussed by you with 9 the Staff are correct, and two, whether the order should be 10 sustained. In this particular instance, whether that 11 particular pressure reduction requirement should be 12 sustained. ,.-{--) i3 They don't even want to litigate or consider 14 that particular question. It seems to me it's games to say 15 all we have to do is find or allege an injury in fact and 16 don't want to dispute that. We want to talk about other 17 things that may be important but peripherally related. We 18 don't specifically want to talk about the condition that 19 they are asserting was of some harm. 20 If there were an order out on January 3rd, they 21 were requesting a hearing, which the record shows they () 22 haven't yet. And I am prepared as I said to have you .23 consider that particular added condition in your (~J - ( 24 consideration of this matter. The sole issue is whether 25 that particular issue can be sustained. They don't want to PEPPEY REPORTING Co. / 273-7308

KAREN ROMAIN - RPR 64 1 litigate or present evidence with regard to that matter .G 2 being injurious or noninjurious. It seems to me there's c 3 little frivolity involved in that kind of position. 4 MR. HOEFLING: Mr. Chairman, I would like to 1 5 discuss one point that is unclear or hasn't come across and 6 is unclear to me, but perhaps not to others. The pressure 7 question or the reduction in pressure that we seem to be 8 discussing now as a potential candidate for injury was the 9 subject of the January 3rd order. And not the November ? 10 30th order. 11 CHAIRMAN GROSSMAN: I think that was made clear. 12 MR. HOEFLING: Okay, fine. As far as the second ff 'd 13 order is concerned, the January 3rd order, I think it's 14 also clear there's been no hearing request on that order. 15 CHAIRMAN GROSSMAN: But as has also been 16 discussed, the Commission did refer to two orders and my 17 understanding is that there were only two orders that could 18 have been referred to, on November 3rd and the January 3rd, 19 And whatever delegation was made to us related also to that 20 January 3rd order. 21 MR. HOEFLING: Mr. Chairman, I would turn to G(_) 22 that order now. I note the first sentence does contain the 23 reference to a request for hearing on two orders. But () 24 turning to the second page, and I have a slip copy of it, 25 the second page beginning~with the first full paragraph and PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 65 I continuing on to the bottom of that page discusses only the .(l '~' 2 November 30th order and concludes, "If the Board determines 3 that a hearing is required, the Board is instructed to (l 4 conduct an adjudicatory hearing solely on the issues 5 identified in the order." Singular. So there's a question 1 6 here as to what exactly the Commission did have in mind. 7 CHAIRMAN GROSSMAN: Let me ask you. If we are 8 discussing or if we are considering the effects of a 9 modification on the operations of the licensee, how can we ~ 10 consider a hypothetical which was the actual fact but no 11 longer is because the action has been modified. Don't we 12 necessarily have to look at what action is being taken y',p) N_ 13 pursuant to that modification order of -- confirmatory 14 order of November 30th? 15 MR. HOEFLING: It would be the Staff's position 16 that the Board would not for the following reasons. The 17 November 30th order was an order placing restrictions on 18 the licensee in a number of particulars, one of which was 19 the 60 full-power day requirement for testing. That 20 particular element of the order has, if you will, been 21 dissolved by time and by the performance of the required () 22 testing and what have you. Other elements of that order 23 are still in effect. Limitations to test measures, leak ({[] 24 rate requirements, etc. So elements of that order remain 25 for this Board's consideration. PEPPEY REPORTING CO. / 273-7308

i l KAREN ROMAIN - RPR 66 ) 1 The January 3 order, while it was perhaps styled ,,x/] 2 as a modification, I myself would not style it as a } 3 modification. In fact it was not a modification of the O 4 November 30th order. It did not treat or address any of 5 the resr.ictive elements of the November 30th order. It 6 imposed an additional restriction which was unrelated to 7 the November 30th order. Fairly clearly so, because the 8 November 30th order did not incorporate that restriction to 9 begin with. So the Staff would characterize that second 2 10 order as a distinct ordering action and would not 11 necessarily deserve this Board's consideration absent a. 12 proper hearing request. . y) ~ A 13 CHAIRMAN GROSSMAN: That's a matter you ought to m 14 consider carefully. Because I don't know that the Staff 15 does want to take a position that might require the 16 establishment of three Licensing Boards. Instead of one. 17 And that may well be a result of taking a motion as a 18 modification of an order that is really an independent 19 order. So there are two sides to that question. f 20 MR. HOEFLING: One other point I would like to 21 address. This goes to the comments made by the Decade (n) 22 regarding the arguability of the interest element at this 23 point or stage of the hearing. I think we should {) 24 distinguish between the question -- we should distinguish 25 the question of injury in fact from the question of the PEPPEY REPORTING CO. / 273-7308 J

KAREN ROMAIN - RPR 67 ) 1 veracity or correctness of a contention. I think the case 2 law in the Commission is well settled that one need merely 3 allege a contention and need not get to the merits of the O 4 contention at the pleading stage but rather the contention 5 wculd be litigated after the commencement of the proceeding 6 and that could be done with summary disposition or actual 7 evidenciary record on the contention. 8 The Staff would distinguish that type of a 9 inquiry into the merits from an inquiry into the merits 10 related to standing and injury in fact. The Staff would ba 11 of the position that the parties are entitled, should a 12 question of injury in fact be susceptible in view of one of -() 13 the parties, to an evidenciary development at-the earliest 14 stage of the proceeding, to an opportunity to make an 15 evidenciary presentation on that point. So I don't think 16 it's just an arguable element for the Board to consider. 17 But should a party elect to in fact examine that question 18 on its merits, the Staff's position would be a party would 19 be entitled to do so. And there's some law on that which I 20 could direct the Beard to if the Board is interested. 21 CHAIRMAN GROSSMAN: I am not sure I understand () 22 the point. Before I look at the citation, could you 23 rephrase it for us? (]) 24 MR. HOEFLING: The point would be that on this 25 question of standing, should an individual allege harm or ) PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 68 1 injury.from one of the restrictive elements of the order, _sh L 2 it is the Staff's position that the proper route to obtain 3 standing in this proceeding, at that point should that 4 allegation be made in fact this restrictive element results 5 in injury to the parties, that allegation at that early 6 point in time is one which a party is entitled to present 7 evidence on as to its veracity. To the merits of that 8 allegation, to determine whether in fact the party does 9 have standing. And not merely to be accepted for the sake 10 of argument that it is true and a proceeding is initiated. 11 CHAIRMAN GROSSMAN: My problem was you didn't 12 identify parties. You mean an adverse party. ) 13 MR. HOEFLING: Right, excuse me. 14 CHAIRMAN GROSSMAN: But now what stage of the 15 proceeding do you suggest that we could have that 16 preliminary inquiry? Before contentions are ruled on or 17 before standing is determined? 18 MR. HOEFLING: Before standing is determined, 19 yes. This would be in effect a prerequisite to a 20 determination on standing. Again, this would be at the 21 election of the party to make a determination if they () 22 wanted to contest any of the allegations that are being 23 made in an. effort to gain standing. The party could make U) 24 an objection and move the Board to entertain evidence on 25 the question of injury before the Board rules on standing. PEPPEY REPORTING CO. / 273-7308

KAREN'ROMAIN - RPR 69 l 1 1 COMMISSIONER VENN LEEDS: I am having trouble . g.d 2 thinking back to Allens Creek. How does that compare back 3 with Allens Creek? ?% 4 MR. HOEFLING: Allens Creek deals with 5 contentions, and the Commission law on contentions is a 6 party may make claims or allegations with regards to 7 contentions and an inquiry into the truth cc the 8 correctness of those allegations is not proper. At a 9 preliminary stage of the proceeding. That's to be left for 10 development as the case matures and people develop evidence 11 on that question. I am trying to distinguish contentions 12 from standing. Again, in standing one must allege harm. I ' () 13 am saying it's an entitlement of a party to challenge those 14 allegations of harm and attempt to demonstrate they are 15 false and thereby ome to grips with the question of 16 standing based on evidenciary record. Should a party elect 17 to do so. 18 COMMISSIONER VENN LEEDS: Aren't you saying 19 there's two situations? One is standing to get into a 20 construction permit or operating license case and then 21 standing to get into this one. And in this particular () 22 instance, the truthfulness of the facts that would get you 23 standing in this case can't be discussed. (])- 24_ MS. CYR: Could also be discussed in a 25 construction permit proceeding. But in that proceeding a PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 70 1 person can allege.they have been harmed by the licensing -~~s () 2 action by showing they live within a certain distance from 3 the plant. If there is some question whether or not the O 4 person lives near the plant, that's a question you can 7 5 examine in the proceeding. To determine whether that 6 person lives there and can be injured by the contentions 7 the' will go on and litigate. That aspect you can examine. 8 When they present a contention, if they have a basis and 9 sufficient specificity, that comes in that way. You don't 10 go on to determine the merits of the contention. The 7 11 determination whether they live near the plant, you can. 12 COMMISSIONER VENN LEEDS: Whether or not they f -> 13 represent the people they claim to represent. Okay. You 14 are saying the same thing applies here except now we have 15 to talk about the injury in fact. 16 MS. CYR: Right. Different proceeding for 17 injury in fact as set forth in Marble Hill. 18 COMMISSIONER VENN LEEDS: Ms. Falk, have you all 19 requested information from the Staff on this particular 20 problem? 21 MS. FALK: The issue here is not wnether we are () 22 getting facts from NRC. It is whether the facts upon which ] 23 the.NRC orders are based would establish the scrutiny of ) 24 examination by other experts. We have had a problem with 25 timeliness of service or service of things. We eventually PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 71 1 get them. 2 MR. ANDERSON: Can I illustrate? 3 COMMISSIONER VENN LEEDS: I think what she said 4 wa s fine. I just wanted to know if there was a problem ? 5 getting information from the Staff. 6 CHAIRMAN GROSSMAN: I have one further question 7 here, or maybe a series. You are not suggesting there are 8 cases that indicate we can have a preliminary inquiry on 9 the merits to determine injury in fact but merely cases ~ 10 which indicate that certain jurisdictional facts may not be 11 so. Isn't that basically the distinction? Whether or not f 12 it's called in NRC terminology, you are not suggesting ) 13 there are caseu that actually went into the merits to 14 determine whether the claimed injury did in fact occur. 15 Not to the individual but whether or not there could be an 16 injury. 17 MR. HOEFLING: The Staff would be suggesting 18 there could be an inquiry into the correctness of the 19 allegation of injury in fact. 20 CHAIRMAN GROSSMAN: I am sure sorry, I am not 21 making myself clear.- Of course there couldn't be an injury () 22 if the injury did not occur to the person. It's a Bishop 23 Barkley type situation. But there isn't any case that you () 24 can cite that would indicate that the actual injury, the 25 actual adverse effect did not occur, therefore there could PEPPEY. REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 72 1 not be injury in fact. Is there such a case that says that? 7 e V 2 That the actual adverse effect that is alleged could not 3 occur and therefore there could not be injury to that 4 person? 3 5 MR. HOEFLING: Well, I don't think I fully 6 understand the distinction. What I am trying to indicate 7 is that the question of whether or not injury in fact 8 exists is a proper question for examination at this 9 preliminary point, should a party elect to challenge that. 10 CHAIRMAN GROSSMAN: My question is very narrow. 11 What I am asking you is there any case that you can cite in 12 which there was a preliminary inquiry into whether the s m) k-13 adverse effect might not be able to occur. In other wo$ds, s 14 that even though the effect was considered adverse or 15 claimed to be adverse by the petitioner, there was a 16 preliminary inquiry which indicated that there could not be 17 such an adverse effect? 18 MR. HOEFLING: No, I can't think of any case on 19 that point, Mr. Chairman. 20. CHAIRMAN GROSSMAN: The cases you have in mind 21 are geographic cases basically or representational ones j (~h (,) 22 'which assume that perhaps the adverse effect could occur 23 but could not or would not occur to the petitioner or would () 24 not occur to a person that the petitioner contends it 25 represents. Isn't that the order of those cases? PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 73 1 MR. HOEFLING: The one case is on that point. 7, C-) 2 The other case is the St. Lucy case which dealt with the 3 application of the five factors or the showing required for fh 4 an untimely petition. And indicated that allegations 5 incident to those factors, should a party wish to come to 6 grips with the merits, would be a proper inquiry to make. 7 In a sense jurisdictional. If jurisdiction or late filing 8 can be thought of as flowing from the particular rule in.714. 9 MS. CYR: Mr. Chairman, if I could make one 10 quick comment again. I think in terms of the adverse 11 effect on the departure from nuclear boiling, it should be 12 noted again no safety limit -- The change from 2000 psi sen 'k / 13 resulted in no change to the safety limit of the plant. No 14 safety limits were exceeded. There was no problem with 15 them to meet their analysis and so on. The Staff did not 16 require them to reduce any safety limit for the Staff. And 17 they had operated at that level before. They went back and 18 did reanalysis and concluded there wasn't any adverse 19 effect on the safe ~ty limit that plant met or any need to 20 change the safety limit, to reduce the safety limit as a 21 result of the reduction in pressure. () 22 CHAIRMAN GROSSMAN: Now as far as the change of 23 temperature went, are you saying -- I believe I saw this in G i_j 24 one of your papers -- that the limits with regard to .s 25 temperature were not changed? Is that correct, that there PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 74 1 was no specification with regard to temperature? srx -Q 2 MS. CYR: Right. That was an action taken by 3 the licensee within its ability already existing. That was 4 not an action ordered by the director. i 5 CHAIRMAN GROSSMAN: Now I believe, Mr. Walsh, 6 you had a second point we never got to. 7 MR. WALSH: No, I think I pretty much stated my 8 position. 9 CHAIRMAN GROSSMAN: Okay. Now Ms. Falk. ~ 10 MS. FALK: I just have three brief points, Mr. 11 Chairman. First on the issue whether or not this is an 12 enforcement proceeding. In my initial remarks I made the ) 13 distinction between Marble Hill and this case where there 14 they were looking at whether or not the provisions in the 15 license were being complied with. Here we are looking at 16 whether or not the license conditions are adequate. Both 17 counsel for the Company and NRC have stated this is an 18 enforcement proceeding but have cited no law in support of 19 that or no facts in the record to demonstrate that. I was 20 glancing at my papers here and I noticed another indication 21 that.maybe this Commission has already considered that (~^) (, 22 issue in the back of their minds. The caption on the 23 Marble ~ Hill case says, " Order to Confirm Suspension of (')' 24 Construction." The caption of this docket on its face 25 under orders issued by this panel or the Commission, PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 75 1 " Modification of License." That to me is indicative a rO' 2 modification of a license proceeding is different from an 3 enforcement action. O 4 On the second point which goes to Mr. Charnof f's i 5 question or inquiry about the frivolity of the distinction 6 the Decade is making between the tube degradation problem, 7 which you know has been identified as a serious safety 8 problem, and the pressure temperature question we have been 9 talking about this morning. The reason we have made the 10 distinction is several. Mr. Anderson has addressed it. I 11 addJessed it before not only in the pragmatic cost problems 12 but because we think the problem is more significant. The 13 re'ason we delineate it to the tube degradation problems is 14 because we do not want to fool anybody into thinking we 15 have the means or capability or resources to litigate those 16 other issues. We are not trying to fool anybody. We want 17 you to know the specific fundamental concern that we have, 18 and that is the tube degradation problem. That is not as I 19 have said before, though, a matter of standing. The 20 standing and merits and what we have the means to litigate 21 once we get into the door are different. -() 22 My third and final point is on the generica i 23 proceeding issue. In the filing by the Company on July 28 r() 24 they raise the possibilities that maybe the Commission 25 would want to go the route of having a-generic proceeding PEPPEY REPORTING CO. / 273-7308

-~~ KAREN ROMAIN - RPR 76 1 on the problem because it is being experienced in other .- y - 2 plants, although not to the rate Point Beach is currently 3 having. Our position on that would be we would not object 4 to a generic hearing as long as -- and there's two criteria. 5 The Point Beach problem would be looked at because it has 6 the most rapid rate of degradation and if it was done in a 7 very expeditious matter, because as you know our claims all 8 along in this proceeding have been the safety problem must 9 be looked at as soon as possible, as our scientists have i 10 said. It's got to be resolved. Sometimes the generic 11 proceedings have a way of getting drifted and lost off into 12 space. 13 We certainly have concern and appreciation for 14 the amount of work and proceedings NRC has. So if the most 15 expeditious way for them to solve this problem is to hold a 16 generic proceeding, we would not object to that, given it's 17 done in a timely manner. 18 MR. CHARNOFF: Just on the latter two points. 19 We are not recommending there be a generic hearing or not 20 ~ tre a generic hearing. The purpose of that discussion in 21 our filing vss simply or directly responsive to Ms. Falk's () 22-second point. Namely she's concerned with the so called 23 tube degradation problem rather than the conditions being tq . _j - 24 imposed by these orders. Our point really is, as Mr. s 25 0'Neill indicated,.that there's another forum for getting PEPPEY REPORTING CO. / 273-7308

4 KAREN ROMAIN - RPR 77 1 at those if that's what the Decade proposes other than this , _y_ 2 particular forum which is not established for that purpose. 3 The particular forum as Mr. J'Neill and the Staff indicated O 4 was established to determine whether or not that particular ) 5 order, the November 30th order should be sustained in the 6 context of those particular conditions that were imposed as 7 restrictive conditions on the licensee. 8 To the extent that Decade thinks those 9 particular conditions are not sufficient, to the extent 10 that the Decade thinks the tube degradation problem is 11 generic or is serious and doesn't want to treat it 12 frivolously, then the proper route is pursue the 2.206 y 3 13 avenue. The significance of the FIFR case is not that it's 14 necessarily on all fours or all threes with this particular 15 indication. What it recognizes is that agencies establish 16 different mechanisms and procedures for getting at these 17 particular problems. That's what was underlying the 18 Commission's rationale very clearly in the majority 19 decision in Marble Hill. 20 That particular question, however, was not put 21 to your Board to determine. And if the Decade wishes to O(- 22 pursue that, they are free to pursue it. They may have 23 already pursued it and dropped the ball in as far as their () \\ 2.206 petition was denied and they didn't pursuit it in (- 24 25 Court, that's a different matter. But there's an avenue PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 78 1 for raising their so called serious question with either ,_7.V 2 Point Beach or on generic basis. That's wall we were 3 describing in our particular submittal. O 4 It seems to me the Board has to recognize that ) 5 particular distinction. Because it was not given. For 6 example, the Commission did not specifically give to yoc 7 the privilege of reviewing the denial by Mr Denton of the 8 2.206 petition filed in November wh'ich was reviewed by the 9 Commission as I recall it early in January, and there was a 10 document to that effect in mid-January that's cited by the 11 Staff, recognizing the Commission went along with the 12 denial of the 2.206 decision. But the Commissian >Tl ~ As' 13 significantly did not ask you to review either their action 14 or the Denton action on the 2.206 petition. That's the 15 issue they want to raise here. Not the issue of the 16 proprietor of the restrictive conditions imposed in the 17 November 30th or January 3 order, if you choose to look at 18 it. 19 COMMISSIONER VENN LEEDS: Ms. Falk, let me ask 20 you a question about this. ~ Do you see the orders to this 21 Board as allowing us to impose additional restrictions on /(. 22 the licensee? 23 MS. FALK: I believe from the words of the order fm x_) 24-of the Commission to you, which is to determine whether the '25 facts are a sufficient basis on which the order, their PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 79 1 -November 30th order lies, presumes if you find those facts ~. 2 and conditions insufficient youtwill make recommendations 3 or do something about it. I would assume they wouldn't ()' 4 have you find a negative and not find a positive. 1 5 COMMISSIONER VENN LEEDS: Let's assume it was 6 found.that some facts were incorrect. Then is the second 7 question whether or not the order should be sustained? 8 MS. FALK: I an missing your question. I am 9 sorry. 10 COMMISSIONER VEN9 LEEDS: If you assume arguendo 11 some of the facts were found to be incorrect -. i 12 MS. FALK: Facts in the order or underlying the 13 order? w 14 COMMISSIONER VENN LEEDS: Both. So I get around l 15 whether or not we can look at that. I will assume that way. i 16 Then-isn't the second question whether or not the order 17 itself should be sustained? 18 MS. FALK: .Yes. 19 _ COMMISSIONER VENN LEEDS: And if the question is 20-whether or not the order can be sustained, then isn't the 21 only option left under the writings of the Commission that () -22 . we should just vacate that order? There was nothing in 23 there.saying we should modify the order. I don't find any I) 24 wording the-Commission gave us permission to change or 25 modify. If we found the facts didn't support the order, we PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 80 I would say vacate it. 2 -MS. FALK: I would agree it's unclear. Your 3 conclusion may be one rational way of reading it. However 4 it bothers me in the sense why would the Commission want 5 you to find just the invalidity and not tell them why. 6 COMMISSIONER VENN LEEDS: I can't get inside tha 7 Commission's head and as I read what they have told me, 8 that's the only thing I have left. And exactly like 9 whatever number Federal water pollution thing. I had no 10 option. I could either say no license 11 MS. FALK: I think it's ambiguous. Yours is one 12 rational one.

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13 COMMISSIONER VENN LEEDS: What area? 14 MS. FALK: That the Commission wants you to go 15 further and tell them why the order is inadequate. 16 COMMISSIONER VENN LEEDS: We would tell them 17 that when we told them the facts are incorrect, wouldn't we? 18 MS. FALK: You would be saying what exists now 19 is inadequate. 20. COMMISSIONER VENN LEEDS: Where do they say we 21 should do that? () 22 MS. FALK: They don't say it. I think that's a 23 reasonable response as a practical person. Why would the () 24-Commission want you to say what you have done is wrong but + 25 there's no better way to do it. Is there a better way it PEPPEY REPORTINGHCO. / 273-7308

KAREN ROMAIN - RPR 81 1 can be done. .,O 2 COMMISSIONER VENN LEEDS: Okay. Then the third 3 question is if that were the result, if we were to vacate 4 it, wouldn't you be in a worse position? Wouldn't we have ') 5 injured you? The plant would be less safe. 6 MS. FALK: You' re wanting me to buy Mr. 7 Charnoff's argument and I can't do that. The tube 8 degradation problem is the one the scientist and we are 9 claiming has to be looked at. And the orders we are 1 10 challenging here don't give us that at all. They do not 11 subject the tube degradation problem to the scrutiny of 12 factual findings hastle between experts on what can be done 7.- ~ 13 to solve this problem. We are in no worse condition in our 14 opinion. 15 COMMISSIONER VENN LEEDS: In other words if the 16 staffs order which presumably was put in place to 17 presumably make the plant saf er was vacated, and we told 18 the licensee they could go raise the pressure and do 19 whatever else they had before, would that not make it less 20 safe? 21 MS. FALK: All I can go by, because I am not a () 22 technical expert, is what the Commission Staff itself has 23 said to the Commission. That is the two things done, - (~T (_j 24 reducing the temperature and pressure, have not solved the 25. problem. They have not solved the problem. I cited the PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 82 1 transcript quotes to you. ,!r .V 2 This is not my opinion. This is the Commission, 3 Staff. opinion saying we haven't solved the problem. 4 COMMISSIONER VENN LEEDS: Safe operation, or the 5 problem of continuing degradation of the tubes? 6 MS. FALK: They are one and the same. 7 COMMISSIONER VENN LEEDS: You're alleging the 8 plant is unsafe at this point in time with the order in 9 place by the Staff? I am sorry. ine Director of Nuclear 10 Reactor Regulation. Mr. Denton's order. Are you alleging 11 the plant is unsafe now? 12 MS. FALK: We are alleging the November 30th x) 13 order and modifications thereto have not alleviated the 14 tube degradation problem. And the same s4fety problem that 15 existed before November 30th exists today. 16 COMMISSIONER VENN LEEDS: I am trying to 17 understand. You are alleging the plant is unsafe as it is 18 operating today? 19 MS..FALK: We are saying in our review of the 20 . l i te ra ture, which is sparse, which is why we need the 21 hearing, from groups like the American Physical Society who () 22 say this is a safety problem that the problem deserves to 23 be looked at. () 24 COMMISSIONER VENN LEEDS: I am trying to push 25 you. You say being a safety problem is one thing but I PEPPEY REPORTING CO. / 273-7308 l

KAREN ROMAIN - RPR 83 1 saying the plant is unsafe to me says something different. Yf)_ 2 MS. FALK: I don't believe it says anything 3 different to us. What you are trying to get me to say we O 4 think the plant is unsafe, yes, we think the plant is i 5 unsafe. 6 MS. CYR: If I might address a couple points. 7 First of all, the transcript which she's quoting from does 8 not represent testimony which can be relied on. I refer to 9 Section 1.903 in terms of how the transcript may be used. 10 Secondly,,I think she's pointing out exactly how her 11 request meets the Marble Hill principal. She's arguing 12 further actions should have been taken by the Director when 49k/ 13 he took the November 30th order. That fact she wants to 14 address or thinks should have been addressed, ought to be 15 addressed in some forum and ought to consider further 16 remedies. That's precisely what the people ask for in 17 ' Marble Hill and the Commission said was not proper subject 18 for hearing on narrow enforcement action wh.ch imposed a 19 few restrictive conditions on the licensee. 20 And if she wants a hearing on that, the proper 21 forum is not here. What we have here and what we are O ss 22 providing in our remedy and' allow people adversely affected 23 by-the order is basically a remedy designed for the f'\\ A_f 24 licensee. Designed for someone who is aggrieved by the 25 specific actions to be able to challenge the actions. And PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 84 I we shouldn't be allowed to force fit someone with different +l!} 2 concerns into an action which is basically allowed to 3 design a licensee or someone who could den.onstrate they O 4 were aggrieved to turn that action into something it is was 4 5 not designed to be. It was not designed to be a generic 6 hearing on steam generated tube problems. 7 COMMISSIONER COLE: And therefore you mean would 8 be 2.206. 9 MS. CYR: Or generic rulemaking or having their 10 petition denied by the Commission, they can seek action in 11 the Federal courts. 12 COMMISSIONER VENN LEEDS: What was your point

ep)

(- 13 now about the evidence rule. Tell me'that. 14 MS. CYR: " Statements of or expressions of 15 opinion made by Commissioners or NRC employees are not 16 intended to represent final determinations or beliefs. 17 Such statements may not be pleaded, cited or relied upon 18 -before the Commission or in any proceeding under Part 2 of 19 these regulations (10 CFR Part 2) except as the Commission 20 may direct." 1 21 COMMISSIONER LEEDS: So whatever anybody tells i r(,) 22 the Commission doesn't make any difference? 23 MS. CYR: Cannot be cited as testimony in a () 24 proceeding. I am saying the meetings before the Commission I 25 are designed to get the Staff to present their views and PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 85 1 discuss what they see are the problems and they are trying r.,h I 2 to reach conclusions. It's designed to not put any kind of 3 constraints on the Staff on giving advice to the Commission O 4 to have them feel they are somehow going to be held to that. 5 It's allowing them to consider all kinds of options and 6 possibilities when they are discussing problems with the 7 Commission. Therefore they provide it by regulation not to 8 be held as a final statement of what is in fact the truth 9 about a particular situation. 10 COMMISSIONER VENN LEEDS: But I can't see how 11 statements that were made by the Staff to the Commission 12 would not be evidence of Commission action. Would not it 13 be evidence of what the Staff said 'at that particular time? 14 Whatever they said, they said, didn't they? 15 MS. CYR: Right. But the regulation provides 16 it's not something which can be pleaded in another 17 proceeding. 18 COMMISSIONER VENN LEEDS: Pleaded as Staff 19 position or Commission position. But would certainly be 20 evidence of what the Staff said. 21 MS. CYR: I would dispute her interpretation of () 22 what he said. He was saying there was a decrease in 23 departure from nuclear boiling ratios by the reduction in () 24 pressure. But there was no safety limit exceeded above the 25 safety limits. It may have gone down a little bit, but no PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 86 1 effect on the safety limit. No need to reduce the margin L, v(3 2 we required that licensee to operate at. We would look at 3 it and we in fact did look at it and we found there was no ,U 4 problem. It did not affect the safety limits of that pl an t. t 5 That's basically the terms in which he was saying it 6 affects that ratio, which means we have to look at it. We 7 had to see whether it might reduce it below the safety 8 margin, but it did not. There was no adverse effect on our 9 findings of the safety of that operation of the plant. 10 CHAIRMAN GROSSMAN: Ms. Falk, I want to clear 11 that up and put it to rest. You are not contending there 12 was any formal limitation that was changed with regard to ./ 13 temperature. But only as a practical matter that the 14 operation was at a different temperature as a result of the 15 January 3rd modification. 16 MS. FALK: Right. Pressure was formal. The 17 temperature was incidental or subsequent to or necessary 18 consequent of. Whatever you want to say. 19 CHAIRMAN GROSSMAN: Mr. O'Neill, you say that is 20 not the case? 21 MR. O'NEILL: Certainly not a necessary () 22 consequent of. Incidental may not be the right word. I 23 think we have described a number of times suggestion that (')s (. 24 one of the actions the licensee took was to reduce 25 voluntarily its operating power to 80 percent in an attempt PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 87 1 to reduce the temperature. It was done November 30th when y/~T 2 we went back up to power at that time and we have 3 maintained that since then. Not part of this order. Not 4 part of this proceeding. 5 I would just like to address a very narrow issue 6 raised by Ms. Falk. That is Marble Hill was a suspension 7 and this is a modification. These are all enforcement 8 actions. Revocation, suspending, modification of a license 9 are all types of enforcement actions. This is an 10 enforcement proceeding. 11 I just want to reiterate this is a rather narrow 12 question we are looking at. There's always a tendency to 3 A 13 try and expand and drag in lots of other issues. The':e's 14 lots of other forums and we are in most of those forums 15 with' Decade. We are looking at Marble Hill. Looking at a 16 November 30th order. That's really all we should be 17 talking about here. 18 CHAIRMAN GROSSMAN: And again, though I believe 19 I have asked you this, but I want to make sure I ask you 20 this in the context of the scope, Ms. Falk, there's no 21 question is there but that if we do apply Marble Hill to () 22 this proceeding and we do read it in conjunction with the 23 instruction given to us to conduct an adjudicatory hearing () .24 solely on the issues identified in the order, that none of 25 your contentions would be on. the issues identified. That PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 88 1 is on parts two and three of the order. ,.'f3 '~' 2 MS. FALK: On the facts underlying those. If 3 you want to make that distinction. Yes. On the facts 4 contained in those two sections themselves, no. On whether 5 the factual findings beneath the Commission provisions in 6 those two sections are adequate or sufficient or have been 7 subject to cross-examination, we would contest that. But 8 that is not I think what you asked me. 9 MR. ANDERSON: Can I give you a concrete example? 10 We say the contention is the eddy-current test doesn't work 11 good enough. It appears in the safety evaluation report 12 attached to the order, but does not appear incorporated ,, s( ) 13 specifically by reference in Parts two and three. If you 14 look at the simple face of parts two and three of the order, 15 it's not there. If you look at the safety evaluation 16 reports, it is in large measure there. Essentially it's 17 there in the safety evaluation reports. 18 CHAIRMAN GROSSMAN: But the conclusion that is 19 given in parts two and three is to the ef f ect that -- or at 12 0 least part two -- the eJfect of what is discussed at length 21 in the SER is that the plant would be unsafe without () 22 certain modifications being made. And is that not correct? 23 MR. ANDERSON: But you are asking whether the (]) 24 facts in the order are correct. Not the conclusions. I am 25 saying as to the facts. That's the purpora of adjudication. PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 89 1 As to facts the underlying SER of part two is subject to . O' 2 the contention challenges within Marble Hill. If you 3 interpret Marble Hill to say yes, the conclusionary stuff O 4 in two and three, you can go and encompass the scope we are 5 asking. If you don't, you have another kind of problem to 6 cope with. 7 CHAIRMAN GROSSMAN: Now what would be the 8 purpose of attacking the underlying f acts if you are going 9 to accept the conclusion in Parts two and three? 10 MR. ANDERSON: We are not. We are challenging 11 both the facts and conclusions. But the purpose of 12 adjudication is to get at facts. And the facts stated in ) 13 two and three, the letter is written on such and such day, 14 we are not challenging that. We are challenging the 15-eddy-current test works. 16 MR. CHARNOFF: The central issue that comes out 17 of that is Mr. Anderson is saying that he doesn't think 18 eddy-current testing is good enough. We want something 19 more. That's precisely what Marble Hill is suggesting. 20 That that's not at issue in this kind of proceeding. The 21 thrust of their concern, and it's been articulated over and () 22 over this morning, is what has been proposed or required in 23 the order is not enough. They want more. Because they () 24 dispute the adequacy. The sufficiency of those particular 25 conditions ~or the accuracy of the underlying facts. I PEPPEY REPORTING CO. / 273-7308 )

KAREN ROMAIN - RPR 90 1 Because they don't support the sufficiency of those things, ,, r3 g< '2 That's the theme that Decade is playing. That's precisely 3 the theme Marble Hill says is not appropriate for this kind 4 of a forum in this kind of a setting. It may be 5 appropriate somewhere else, but not appropriate here. 6 MR. ANDERSON: We are being very clear in all 7 our contentions. We are not misleading anyone. How the 8 mission in the last analysis goes beyond. That doesn't 9 mean that's all we are asking this Board to do. We are ? 10 also saying there's facts underlying that order in the 11 attached SER which are disputed. So whether or not we also 12 want to have the Commission go further is irrelevant to the 13 initial question of whether the facts are true. 14 MS. CYR: I think we need to go back to what the 15 initial premise is for offering a hearing in a situation 16 such as this. That is to allow a person who is harmed by 17 that action to protest the action. If what their basic 18 claim is they want the Commission to take further action to 19 further protect their interests, that is not what should be 20 argued here. They should be arguing in this situation how 21 they are harmed by that action, why the facts don't go to O) ( 22 support the actions taken. Why in light of that harm the 23 action should not be sustained. Not arguing the facts in a f }( ') 24 vacuum. They don't harm them. But arguing the facts in 25 the contention of how these actions that we are imposing PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 91 I harm them and why they should not be sustained. ~ y' r. 2 CHAIRMAN GROSSMAN: Have we explored Marble Hill 3 to death here? Does anyone have something further to say 4 about it? I don' t know whether we have much more business. 5 I think we ought to take a break so we can get a late checkout 6 here. 7 (Discussion off the record.) 8 (Short recess taken.) 9 CHAIRMAN GROSSMAN: The meeting will come to i 10 order. Ordinarily we would go over specific contentions 11 and if anyone chooses to, I suppose we can. However, I 12 think that we have discussed in general whether the 13 contentions ought to be adopted as a whole~or rejected as a 14 whole. And I don't think it would be profitable to go over 15 specific contentions unless I hear to the contrary. Ms. 16 Falk? 17 MS. FALK: No. Seeing as the contentions are 18 ours, I am not going to try and refute them. 19 CHAIRMAN GROSSMAN: I don't know if we have. 20 further order of business, then. ~ 21 MS. FALK: I have one motion to file that I A (_j 22 think would'be proper at this time. 23 CHAIRMAN GROSSMAN: Okay. , () 24 MS. FALK: I would read the caption of the 25 motion into the record so there's no mistake in what I am PEPPEY REPORTING Co. / 273-7308

KAREN ROMAIN - RPR 92 1 filing here. The motion _is entitled " Petitioner's '. JM 2 Alternativt Mv2 ion For An Order Certifying A Question To 3' The Commission Or Permitting Interlocutory Appeal Of A 4 Board Decision, In The Event The board Denies Petitioner's 5 Request For A Hearing." I believe the motion is clear on 6 its face on what it requests. All I would add at this time 7 is that the Board make the decision as expeditiously as i 8 possible on the order for hearing or not because of our 9 concerns and we do think it's an immediate problem that 10 needs addressing. 11 On -the standing issue, would it clarify the 12 record for you if we file affidavits of some of our members 13 that live and are near the plant? We would be glad to do 14 so, if you would require that. 15 CHAIRMAN GROSSMAN: I would hope that you would. 16 I will give Mr. O'Neill his chance to object to your filing 17 them at this time. But I think that as far as the Board is 18 concerned, we would prefer if you do represent people 19 living in the area, that you do comply with the formalities 20 require 6 and file statements indicating that you represent 21 those people. () 22-MS. FALK: I may be wrong, but there was nothing 23 in the regulation we saw there was a need to file " I~') 24 affidavits. u:~- 25-CHAIRMAN GROSSMAN: You're correct. There's no PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 93 1 need at least any longer for affidavits. However there has es,Q) 2 to be some indication as to representation and 3 authorization. I don't believe we have had any kind of O 4 statement filed. 5 MS. FALK: We would be glad to do so. 6 MR. CHARNCFF: We would have no objection to 7 late filing of that. I think a schedule might be set, 8 though. Such that we know it's either in or not in. 9 MS. FALK: I can do it within three days, four 10 days, a week. 11 CHAIRMAN GROSSMAN: We will give you a week, 12 then, to submit those. 13 MS. FALK:

Fine, 14 CHAIRMAN GROSSMAN:

Now with regard to what you 15 have just filed now, if we were to deny your intervention 16 here, it would go to -- you could appeal it to the Appeal 17 Board. Isn't that your understanding? 18 MS. FALK: That's our understanding. But that 19 is not what the motion seeks. 20 CHAIRMAN GROSSMAN: You would prefer direct l 21 certification to the Commission? () 22 MS. FALK: Right, in light of the reconstituted 23 Commission, the changed personnel and seats as the motion () 24 indicates. 25 CHAIRMAN GROSSMAN: Do you think that's i PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 94 -1 something the Board here should take cognizance of in ,.s d 2 certifying a question to the Commission? 3 MS. FALK: Under the regulations I saw no limits O 4 placed on your discretion one way or the other. I don't ) 5 know what your usual procedure is, but you have the 6 authority to do that and under what conditions you exercise 7 that authority I presume is your prerogative. 8 CHAIRMAN GROSSMAN: Anyone have comments on that? 9 MR. CHARNOFF: I would like to answer the motion 10 right now briefly. The first proposal is to assert to the 11 Commission the question of whether the Marble Hill decision 12 should not be precedent for this case. I think you have o-s 13 the right to certify any question subject to certain a 14 reasonable restrictions to the Commission. But it strikes 15 me what Decade is asking in that first alternative is 16 please ask the Commission to rewrite the order that set up 17 this Board in the first instance. It seems to me if they 18 want to appeal the Marble Hill decision, they don't need 19 certification from you to the Commission to that effect. 20 As to the second question that is antici,.ating 21 your denial of their petition and articipating the denial () 22 of-request for certification, they want an order permitting 23 the Decade to file directly with the Commission an appeal {( ); 24 of the-denial. As you point out, where there's a denial of 25 petitioniwhich denies the petition in its entirety, PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 95 1 therefore denying a right to hearing, there's no longer an m..O 2 interlocutory appeal question, which is the terminology 3 that is used in their particular motion. O t,) 4 Beyond that the rules do call for opportunity to r 5 go to the full Board. And beyond that, to the extent they 6 can make a case, they can ask the Commission to take 7 cognizance of the Appeal Board's denial. There seems to me 8 no reason to modify the rules of the Nuclear Regulatory 9 Commission in order to accommodate this. Which is based on 10 some forelong hope because there's been a change in the 11 composition of the Commission somehow or other the 12 precedent will somehow be changed. There is no evidence 13 that is the fact or will be the fact. We oppose the motion. s-14 CHAIRMAN GROSSMAN: As a practical matter, by 15 the way, aside from the request that we say something about 16 the change in composition of the Commission, hasn't the 17 Commission indicated that questions certified to it would 18 go first to the Appeal Board anyway, rather than directly 19 to it? 20 MR. CHARN0FF: When certified to it by the 21 Licensing Board. () 22 CHAIRMAN GROSSMAN: Yes. 23 MR. CHARNOFF: I think they have done that. I (A) 24 am trying to recall where. But I think they have said that 25 when they set up the criteria for review by the Commission PEPPEY REPORTING CO. / 273-7308

KAREN ROMAIN - RPR 96 1 of certain appeals to it. I think in the context of that

{

2 particular set of rules and the suggestion of that I think 3 the Commission indicated it would expect questions to first 4 go -. But my recollection is they did suggest that. ) 5 MS. CYR: Particularly when what's asked to be 6 certified here to the Commission is specifically provided 7 for. When there's an outright denial of petition to 8 intervene, that the rules provide for appeal of that 9 decision to the Appeals Board. 10 CHAIRMAN GROSSMAN: Okay. Any further comments 11 on this? Is there any further business that ought to be 12 covered here? ) 13 MS ' CYR: Nothing. 14 CHAIRMAN GROSSMAN: That concludes the 15 Prehearing Conference. 16 ( Whereupon the hearing was adjourned at 12:07 p.m.) 17 18 19 20 21 - C) 22 23 [] 24 25 -PEPPEY REPORTING CO. /.273-7308

) KAREN ROMAIN - RPR 97 1 STATE OF WISCONSIN ) )U ) 2 MILWAUKEE COUNTY ) 3 I, Karen M. Romain, a stenograph reporter 4 associated with Richard E. Peppey Reporting Company, ) 5 with offices at 517 East Wisconsin Avenue, Milwaukee, 6 Wisconsin, do hereby certify that I reported the 7 foregoing proceedings at the time and place specified 8 in the title page of said transcript and that the 9 foregoing is a full, true and correct transcription of 3 10 my stenographic notes thereof. 3ldday 11 Dated at Milwaukee, Wisconsin this SE 4 12 of 1980. 3m i \\v 13 14 D , f. ,t T L _ 15 ^^' 1 16 Karen M. Romain 17 Registered Professional Reporter ] 18 19 20 ) 21 22 23 P t j 24 x s 25 l i PEPPEY REPORTING CO. / 273-7308}}

ML19330C041

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