ML20053B776
| ML20053B776 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 05/07/1982 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| ISSUANCES-OLA, NUDOCS 8206010224 | |
| Download: ML20053B776 (100) | |
Text
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NCC'Tu REGULATORY COMMISSION g
\\I h u m ald(u m,is A
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g ATOMIC SAFETY AND LICENSING BOARD
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In the Matter ef:
BIG ROCK POINT NUCLEAR POWER PLANT DOCKET NUMBElt 50-155-OLA UNIT NO. 1 OAar:
May 27, 1982 PAGES:
457 - 551 AT:
Washington, D.
C.
l 161 i
So/
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- - ( RE N 1.YG ALDERSON l
I 400 Virginia Ave.,
S.W. Washing =n, D.
C.
20024 l
l 1elechene: (202) 554-2345
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1 UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
BEFORE THE ATOMIC S AFETY AND LICENSING BOARD O
4
x a
5 In the Batter ofs a
a 6
BIG ROCK POINT NUCLEAR POWER PLANT:
Docket Number a
50-155-OLA 7
UNIT No. 1 s
S 8
x 9
In the Office of Alderson Reporting Company 10 400 Virginia S. W.
Washington, D.C.
11 Thursday, May 21, 1982 12 The telephone conference in the above-entitled 13 matter was convened, pursuant to notice, at 10415 a.m.
)
BEFORE:
15 PETER BLOCK, Chairman 16 Administrative Judge Atomic Safety and Licensing board 17 i
l FREDERICK SHON, Member 18 Administrative Judge 19 OSCAR PARIS, Member Administrative Judge 20 APPEARANCES:
21 On behalf of Applicanta 22 JOSEPH GALLO, Esq.
23 Isham, Lincoln & Beale t
l 1120 Connecticut Avenue, N.W.
l ()
24 Washington, D.C.
25
()
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
458 1
APPEARANCES:
(Continued) 2 On behalf of the Intervenors, Christa Maria et al.:
3 HERBERT SEMMEL, Esq.
Q Mills & t1eard On behalf of Intervenor John O'Neill, IIs l
5 JOHN O'NEILL, II 6
On behalf of the NRC Staffs 7
BICHARD J. GODDARD, Esq.
8 RICHARD BACHMANN, Esq.
Washington, D. C.
9 10 11 12 13 14 15 16 17 18 19 20 l
2, l
22 i
23 24 l
25 l
' O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554 2345
459 Q
E E 0. C E E D_ 1 E g E 1
2 CHAIRHAN BLOCH Good morning.
My name is 3
Peter Bloch.
I am chairman of the Atomic Safety and O
4 Licensing Board for the Big Rock Point Power Plant, 5
Docket No. 50-155-OLA, relating to a spent fuel pool 6
expansion.
7 This is an on-the-record conference call to 8
consider scheduling matters, which I will detail in a 9
moment.
The scheduling matters include a request for 10 time expansion by John O'Neill, a request for a 11 temporary restraining order filed by the Applicant, a 12 motion to reconsider also filed by the Applicant, a 13 motion for a continuance filed by Christa Maria et al.,
)
and a motion for a deposition of Arthur Schwartz filed 14 15 by the Applicant.
16 If no one objects, we would propose to l
17 consider the matters in the order that we have just 18 listed them.
19 MR. SEMMEL:
Chairman Bloch, just to save 20 time, I will just tell M r. Gallo that we will now agreo 21 to having Dr. Schwartz deposed at the time and place set 22 forth in their request on the condition which we have 23 observed in the past, that we will be furnished with a
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24 copy of the deposition and tha t Dr. Schwartz will be 25 paid a witness fee of $100 an hour.
Mr. Gallo has l ()
ALDERSON REPORTING COMPANY,INC.
(
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
460
(])
1 agreed to that, so we can strike that f rom the agenda, I 2
believe.
3 CHAIRMAN BLOCH:
Agenda item five is struck on 4
agreement among the parties.
5 MR. GODDARDa Judge Bloch, I think the parties 6
should identify themselve on the record.
7 CHAIRMAN BLOCHa I believe the reporter 8
already has the names.
Do you really see a reason for 9
them identifying themselves on the record?
10 MR. GODDARD:
I don't know who is on the call, 11 other than those that I have heard speak.
With me here 12 is Richard Bachmann, my co-counsel for the NRC staff.
13 Who else is on the call.
14 CHAIRMAN BLOCH For Mr. Goddard's help, would 15 the parties please identify themselves.
16 M r. Semmel.
17 MR. SEMMEL:
Herbert Semmel for the i
18 Intervenors, Christa Maria et al.
19 MR. GALLO:
Joe Gallo for the licensee.
20 MR. O'NEILL4 John O 'Neill, and I am 21 representing myself.
22 CHAIRMAN BLOCHs That is now accomplished.
23 MR. GODDARD:
Thank you.
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24 JUDGE SHON:
Mr. Goddard, who is with you, I 25 did not catch that?
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
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MR. GODDARD:
Richard Bachmann of the Office
[
2 of the Executive Legal Directo r.
Mr. Bach mann and I 3
vill be representing the NRC staff in this proceeding.
O 4
JUDGE SHON:
Thank you.
5 CHAIRMAN BLOCHs Mr. O'Neill, would you speak 6
to the time extension you are requesting?
7 MR. O'NEILLs Yes, this is concerning my 8
contention on the plant history of mismanagement.
I 9
thought that I could prepare this document earlier.
I 10 hope you received the letter that my mother wrote saying 11 how busy we have been here at the restaurant.
This is 12 the good cause I am showing why I have not yet filed the 13 testimony on this contention.
14 Also, two days-ago I received from Joanne 15 Beard about a two-inch thick stack of licensee event 16 reports and other letters, all of which are in the 17 possession of Consumers Power.
I have yet to receive 18 from Petuskey a very thick packet of similar documents 19 which would point to a history of mismanagement at the 20 plant.
21 What I propose to do is to outline these 22 things, how they show a history of mismanagement and a 23 pattern of mismanagement, referring to the licensee
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24 event reports and the other letters, and sending that 25 in.
O ALDERSON REPORTING COMPANY. !NC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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I think the alarming thing is -- Just cae 2
example, I sent with my summary disposition matter a 3
letter concerning health physics, which talked about the 4
fact that the pisnt was not schieving radiation rates as 5
low as reasonably achievable, and there were other 6
violations in the radiation matters.
We have a letter 7
which is dated, I think, April 28 of this year, noting 8
the same violations.
That is a pattern of 9
mismanagement, and I think that it is really important 10 to establish.
11 CHAIRMAN BLOCHs Mr. O'Neill, I an asking that 12 you give good ca use f or later filing.
One important 13 f actor in that is the date on which you will file this.
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14 MR. O'NEILLs I think I can have it in the 15 mail Monday or Tuesday a t the latest.
The reason I can 16 do is because I can have the typing done by someone 17 else, and just do the writing myself.
18 MR. GODDARD:
Mr. O'Neill, you mentioned 19 something about a letter, and I was unable to hear what 20 you said about that and I am not sure that we have a 21 copy of such a letter.
Would you tell us about tha t 22 again?
23 MR. O'NEILL:
That is a letter my mother wrote 24 to the NRC stating the different tasks tha t I have been
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25 doing in preparing the restaurant for our season, and O
ALDERSON REPORTING CGMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D C. 20024 (202) 554-2345
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also stating that there has been no free time for me to
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2 prepare the testimony for this contention.
I am 3
offering that as good cause.
That was mailed on 4
Monday.
5 CHAIRMAN BLOCH:
Mr. O'Neill, have you 6
completed your presentation of good cause?
7 MR. O'N EILL:
Yes.
8 Also part of good cause is that there is real 9
substance to this contention in that there wouldn't be a to full record established if I wasn 't able to testif y.
11 Also, as part of good cause, I would like to 12 point out that the NRC staff is having tremendous 13 difficulty getting their testimony ready and they are 14 able to pursue this fulltime with a large staff, and I 15 am doing it when I am not cooking or repairing the 16 restaurant.
That is basically my problem.
Right now, I 17 am watching onions as they are cooking.
18 CHAIRMAN BLOCH:
Mr. O'Neill, what is your 19 good cause for not yet having filed a document stating 20 what your cause is?
Usually we try to get the excuses 21 in before the deadline and not af terwards.
22 MR. O'NEILL:
Why haven't I filed sta ting wh a t 23 my good cause was?
(])
24 CHAIRMAN BLOCH:
.Yes.
25 MR. O'NEILL:
I did that on two occasions.
O ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE S.W.. WASHINGTON, D.C. 20024 (202) 554 2345
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1 Monday before this last Monday, I filed for an extension 2
and I briefly said what my -sood cause was.
This Monday, 3
a letter from my mother was sent.
O 4
CHAIRMAN BLOCH:
Do those filings mention the 5
date on which you would complete your filing?
6 HR. O'NEILL I think they both ask for May 7
24, but I have been unable to finish by that date.
I 8
think I can do it on Honday or Tuesday.
9 CHAIRMAN BLOCHa Would Applicant comment, 10 please?
11 MR. GALLos Yes, Judge Bloch.
12 We oppose Mr. O'Neill's request for a number 13 of reast' We do not have a copy of the letter that he 14 refers to that he says has been written by his mother.
15 The first reason for opposing Mr. O'Neill's 16 request is that he is grievously out of time and he has 17 not shown good cause to excuse it.
I would venture that 18 argument without seeing the letter that his mother has 19 written.
20 This issue we are talking about was admitted 21 on contingent basis by the Licensing Board back in 22 December of 1979, December 5 to be exact.
At this late 23 date, we are still going through the process of
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24 attempting to hear from Mr. O'Neill with respect to his 25 allegations and assertions of alleged mismanagement by O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINTA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
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1 Consumers Power Company.
2 Other than to state that I resent the 3
implications on behalf of my client that he makes in his O
4 argument that he has something solid, I will let that 5
pass.
6 In any event, as late as May 6, I believe it 7
was, at the on-the-record prehearing conference that we 8
had in this case, the Board gave him a further chance to 9
respond.
The exact length of that time extension to escapes me, but my recollection is that it was a week or 11 so.
12 Then we have yet another motion filed by Mr.
13 0'Neill asking until May 24th -- I am referring to a 14 one page motion for e'xtention dated May 17th -- that 15 motion in and of itself contains no good cause.
Now 16 here today, he told us that he cannot meet that deadline 17 of May 24th, and he thinks he can meet Monday or Tuesday.
18 Tha t is an inexcusable situation.
I think the 19 Commission's policy statement makes clear that outside 20 interests, like running a restaurant, just simply cannot 21 interfere with the orderly processes of NRC adjudicatory 22 proceedings.
23 Finally, on a separate basis, if the Boa rd
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24 were to grant the extension and if he were to finally 25 file whatever it is he has in mind, it would be O
ALDERSON REPORTING COMPANY,iNC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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prejudicial at this late date to the Applicant because
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2 ve would be approximately four or five days away from 3
hearing.
We would have to immediately gear up to O
4 respond to Mr. O'Neill's papers.
5 I would remind the Board that our position is 6
that this is not an admitted contention.
It is on the 7
same footing as Christa Maria Contention Nine.
8 Therefore, we would have to file our preliminary papers 9
reacting to Mr. O'Neill's papers.
10 The Board would have to rule, and if the Board 11 ruled adversely to the Applicant's position in 12 opposition, we would then have the proposition of 13 suddenly having to gear up to provide testimony, and we 14 are on the threshold of the first day of hearing and 15 there are just too many things to worry about at that 16 point.
It would be prejudicial to Applicant's interests 17 or Licensee's interests to try to cope at.that point in 18 time.
l 19 That finishes my argument on that point.
I 20 MR. O'NEILLs I wonder if I could point 21 something out at this moment?
22 CHAIRMAN BLOCH I think I will allow you a 23 brief rebuttal at the end, Mr. O'Neill.
(])
24 HR. O'NEILL:
Okay.
25 CHAIRMAN BLOCH:
But it will have to be O
l ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
467 1
rebuttal and not new points.
)
2 M r. Semmel, do you have a comment?
3 MR. SEMMEL:
I think that the extension should O
4 be granted primarily at least to see the substance of 5
what Mr. O'Neill says.
Even if he tendered it late, if 6
there is demonstrable management f ailures which create a 7
safety problem, then I can' t see how the Board would not 8
consider it.
Also, I think that my motion to continue 9
would take away any of the time pressure in this.
10 It is becoming more evident to me that there 11 is going to be a bifurcated hearing and we are going to 12 have some proceedings af terwards if the Board goes ahead 13 on June 7th.
So any of the time problems would be taken
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14 care of in the same fashion as we are dealing with the 15 question of the seismic site spectra.
16 CHAIRMAN BLOCH:
Staff.
17 ER. GODDARD:
Judge Bloch, the Staff would 18 strenuously object to the admission of testimony by Mr.
19 O'Neill at this point in time.
If he were to file the 20 testimony, as he has indicated, the Staff counsel would 21 not even be present in the Bethesda area to receive that 22 by mail due to the deposition of Dr. Schwartz in Ann 1
23 Harbor on June 3rd, in which the Staff will participate,
(])
24 and a visit to the Big Rock Point site by both counsel 25 for the NRC staf f on Friday the 4th since neither i
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C.20024 (202) 554 2345
468 1
counsel has visited that plant or acquainted themselves
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2 with the spent fuel pool physical layout at that 3
facility.
O 4
In view of the rather strict language of 10 5
CFR 2.743(b) dealing with the filing of written 6
testimony at least 15 days in advance of the session of 7
the hearing at which the testimony is to be presented, 8
the Staff would find it extremely prejudicial to be 9
placed in a position, were the Board to admit this late 10 filed testimony, in having to respond to it during the 11 upcoming hearing.
12 I can only state that counsel for the NRC 13 staff totally concur in the positions expressed quite 14 vell by Mr. Gallo on behalf of the Applicant.
15 CHAIRMAN BLOCH Mr. O'Neill, a brief I
16 rebuttal.
l 17 HR. O'NEILls Okay.
18 Number one, as I pointed out, I think all of 19 these documents are already in the possession of 20 Consumers Power and the NRC in the licensee event l
21 reports, letters between the parties by and large, and 22 also newspaper clippings of which they would be aware 23 because the events happened at Big Rock.
()
What is Monday's date, is it the 1st of June?
24 s
25 MR. GODDARD:
Monday is a Federal holiday and O
ALDERSON REPORTING COMPANY,INC, 400 VIRGtNIA AVE., S.W., WASHINGTON, D.C. 20C24 (202) 554 2345
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1 it is 31 May.
2 MR. O'NEILL:
Statutory limit for filing 3
testimony, as Mr Bachmann pointed out, is 15 days before O
4 the testimony is to be presented in the hearing, and 5
that testimony could easily be in 15 days before the 6
issue would be esised at the hearing.
7 Mumber three, as far as the staff being able 8
to receive the material since I believe 3e said he would 9
be in the area and also Ann Harbor, the documents could 10 be hand-delivered to them when they depose Mr..Schwarts 11 or when they came to Big Rock.
12 Mr. Gallo said that the outside interests were 13 not to be taken into consideration, I really don't think
(
14 that this is the sense of the NRC's position 15 necessarily.
An Intervenor's purpose is to establish a 16 full record.
I think the NRC recognizes that very few 17 Intervenors are full-time Intervenors.
In order for the 18 issues really to f airly be raised, some consideration of 19 the inequitable resources of the parties should be taken l
l 20 into consideration.
21 The final thing is that I want to remind the 22 Board that the issues I am raising are substantial 23 issues, and on December 5th, 1979, the Board said that
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24 at no time would they not consider substantial issues.
25 Thank you.
O l
ALDERSON REPORTING COMPANY. INC.
400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554-2345
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4 1
CHAIRMAN BLOCH:
I am prepared to make a
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2 partial ruling on this subject.-
3 First, Mr. O'Neill, we would like to assure O
4 you that whether or not you are pernitted to fila these 5
documents in the proceeding as of right, you may always '
6 file them and we will review them from the standpoint of 7
whether there is a serious safety issue which we should 8
raise sue sponte.
9 On the other hand, the issues raised by the 10 Applicant are very serious ones.
They involve deadlines 11 that we have set, and extensions of extensions.
12 In addition, this is a special issue, as we 13 pointed out in our last conference, in that there is no 14 final decision as to whether it will even be admitted to 15 th e hearing, or whether sufficient basis for this issue 16 has been shown.
Under those circumstances, more time is 17 needed for a response by the Applicant and Staff than 18 ordinarily is the case.
19 We, however, are not going to rule on the 20 motion at this time because the situation may be 21 different if a portion of this hearing should be 22 co n tin ued.
Consequently, we continue with this matter 23 under advisement.
We vill attempt to rule later in this 24 conference call, after we have decided what to do about
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25 the motion for a continuance.
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
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Are there any motions for reconsideration or
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2 clarification of what I have just said?
3 (No response.)
(:)
4 CHAIRMAN BLOCH:
There being none, Mr. Gallo, 5
woul.' you please speak to the temporary restraining 6
order issue.
7 MR. GALLO4 Yes, Judge Bloch.
8 I assume that the Board and the parties, with 9
the possible exception of Mr. O'Neill, have received the 10 two letters that I filed with the Board on May 25th and 11 May 26th.
12 The letter of May 25 has attached to it a 13 letter that was telecopied to Licensee in Jackson,
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14 Michigan, on May 21st.
The letter is signed by the 15 representative of the NRC staff, Mr. Lainas, to Mr.
16 Vande Walle of Consumers Power Company.
17 Specifically, the letter directs -- that is 18 the word that is used in the second paragraph -- that 19 within 14 days of the le tter, tha t is by J une 4, 20 Licensee submit information on the questions listed in 21 the attachment, and address itself to the further points 22 that are included in the letter.
23 I have filed a motion to, at this point, stay
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24 this letter, and I will explain wha t I mean by tha t.
25 The Licensing Board has authority to modify an order or O
ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D C. 20024 (202) 554 2345
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1 administrative action of the NRC staff under 10 CFR 2
Section 2.717(b).
The Board has the authority tt modify 3
an order to the extent that the Staff's action affects O
4 the subject matter of the proceeding.
5 The very essence of the information the Staff 6
is seeking to obtain with respect to their letter is the 7
subject of this proceeding, and specifically Staff 8
witnesses hearing testimony.
Pages 3, 4 a nd 5 of that 9
testimony, when one compares the items listed in the 10 attachment to the Lainas letter with items A,B,C,D, 11 E, F, and G of Mr. Herring 's testimony, you will find 12 the identical assertions.
13 The Staff, as I indicated in my letter of May 14 21st, when I submitted. our testimony on this issue, 15 indicated that we understood that the staff was raising 16 further issues at this point, and that we were prepared 17 to meet them and contest them in the proceeding and the 18 hearings that are scheduled to begin June 7.
Clearly 19 the nub of the issue under the Lainas letter is whether l
20 or not the attachment and the assertions made in the 21 attachment are correct.
22 I think that clearly establishes that the I
23 Board should have the authority to take the action, if
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24 it deems it appropriate.
25 The relief that I want is that Licensee O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 intends to file a sotion by June 1.
I have to leave for 2
Pittsburgh today to take a deposition in another case, 3
and as it has already been indicated the 31st is a 4
holiday.
So by June 1 I will file a motion that asks 5
for a permanent order barring the Staf f from seeking the 6
information through the vehicle of 10 CFR Section 7
50.54.
8 As I indicated in one of my letters, I 9
received this letter early in the week.
I was unable to 10 file a motion sooner than that because of other matters 11 involved in this case, namely, among other things, 12 meeting with Intervenors up in Petoskey, Michigan, 13 yesterday for purposes of attempting to settle elements 14 of one contention.
Staff counsel also participated in 15 that meeting.
16 Therefore, Licensee requires, in the interim, 17 maintaining the status quo in this matter.
The Staff's 18 14-day deadline expires June 4, and by the time my l
19 motion is filed, responses are received, and the Board i
20 rules, the deadline will have passed.
If we respond to i
21 the letter, we moot, obviously, the purpose of the l
l l
22
,) tion and, therefore, Licensee's ability to obtain a 23
-'ir hearing on this issue and due process will be
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24 denied.
25 It is Licensee's position that this interim
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ALDERSON REPORTING COMPANY, INC, i
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order can be accomplished by the Board issuing an order
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2 pursuant to the section I mentioned, which essentially 3
holds the 14-day period for a response until this matter O
4 has been fully litigated on this docket.
5 What I am referring to here is the matter of 8
whether or not my motion for a permanent stay or an 7
order permanently barring the Staf f f rom seeking 8
inforation in this fashion is adjudicated.
9 There is additional justification for granting 10 this motion.
10 CFR Section 50.54(f) specifies no 11 deadline.
Licensee maintains that the 14-day deadline 12 is unreasonably short in view of the circumstances of 13 this case.
As everyone well knows, the hearings are
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14 scheduled to begin on'the 7th, and the very people and 15 the resources that would be required to provide the 16 information the Staff seeks in the Lainas letter are 17 presently preoccupied in preparing for hearing.
18 Indeed, based on the informal discussions of 19 counsel, it appears that this issue, if the Board 20 approves, will be limited on or about the 8th or 9th of 21 June during the course of the hearing.
22 Licensee would be prejudiced if the motion for 23 a temporary stay is not granted because we would be
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24 forced to deal with this letter over the same timeframe 25 that we are trying to prepare for hearing.
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CHAIRMAN BLOCH:
Mr. Gallo, a couple of
(}
2 questions.
i 3
MR. GALLO:
I am not finished.
O 4
CHAIRMAN BLOCHa I would like to ask some 5
questions, and then you can finish.
6 MR. GALL 0s I am sorry, go right head.
7 CHAIRMAN BLOCH:
First, let's assume that you 8
are correct that we can issue an order under 2.717(b),
9 if it is appropriate.
My first concern is that one 10 reason it might be appropriate for Staff to ask for the 11 information that it has, is to decide whether to take a 12 position either for or against you at the hearing.
13 MR. GALL 0s Is that a question, sir?
14 CHAIRMAN BLOCH:
I am just wondering.
I guess 15 you are not asking that we require that the Staff take a 16 position for you, if you don't give them the 17 in f orma tion.
18 MR. GALLO They have already taken a position 19 in Mr. Herring's testimony, as I referred to, against us 20 on this issue.
21 CHAIRMAN BLOCH:
Okay.
22 MR. GALLos There is no question about that, 23 so it is an issue to be joined in the hearing
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24 CHAIRMAN BLOCH4 The second question is that l
25 the Staff has some interest in this matter that goes G
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 beyond our own jurisdiction.
The letter that you sent 2
to us states that the analyses raise a question as to 3
the integrity of the spent fuel pool under existing pool 3
u) 4 loading con di tion s.
5 We have no authority over the existing 6
conditions at the plant.
Arguably, a concern for a 7
current condition should take predecence over a concern 8
for the licensing a change in the pool.
How do you 9
think we ought to consider that as to whether it is 10 appropriate for us to issue an order.
11 MR. GALLOa You need to look at the underlying 12 facts that support this.
We would show at the hearing 13 th a t the question of pool integrity raised by Mr.
14 Herring's comments are the same regardless of whether-15 th e pool is expanded or not.
Therefore, the issue is 16 directly before us in the proceeding.
17 I would add, at this point, that the pool 18 boiling analysis is being criticized by the Staff 19 witness, at this point are only assertions unsworn at 20 this point.
21 In any event, the pool boiling analyses that 22 is being critized was submitted to the Staff in 1980 in 23 its original form.
It was reviewed and accepted by the lk 24 Staff reviewer.
It was approved, and that approval was 25 reflected in the evaluation report issued by the Staff ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
477
{')
1 on May 15, 1981.
2 Indeed, the Staff moved for summary 3
disposition on that issue with a supporting affidavit on O
4 the same pool boiling analysis in October of 1981.
I am 5
referring to an affidavit signed by Mr. Phef ferlan.
6 Now, at this late hour, Mr. Herring comes along and says 7
that he found some mistakes.
8 In an effort to concile this matter with the 9
Staff, we prepared and filed a revision one to that pool 10 boiling analysis.
That revision one was filed about 11 April 28 of this year.
It was pointed out that while 12 there were some errors which we acknowledged, and that 13 those errors were corrected, they in no way affected the 14 bottom-line with respect to the adequacy of the pool to 15 withstand the effects of pool boiling.
Mr. Herring has 16 filed this further testimony, and this letter comes 17 forward on May 21st.
18 I might poin t out, Mr. Chairman, that it is my 19 strong belief that the Staff was aware of its position l
20 on this matter many, many days prior to May 21st, and it 21 took no 1 tion until the last minute of May 21st to file 22 this letter.
I think the Staff has not come before us i
23 here with clean hands.
I think that this letter was
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24 solely for the purpose of harrassment, given the 25 circumstances of the situation with respect to this O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 case.
2 I think the Staff's initiative is simply a 3
collateral attack or in-run on this Licensing Board's O
4 ability to determine whether or not the Staff's S
assertions are correct.
They are pending before the 6
Board right now.
I think it is another example of the 7
Staff's action, as I asserted at the May 6th prehearing 8
conference, of essentially not taking Licensing Board 9
proceedings seriously.
10 CHAIRMAN BLOCH:
Mr. Gallo, two more 11 questions.
12 One is whether it is your position that if we 13 were to stay this requirement that you would be able to 14 demonstrate at the hearing that the Applicant's analysis 15 is satisfactory and that the pool is not only safe at 16 present, but is safe for expansion purposes?
17 MR. GALL 0a That is our present intention.
l 18 That is exactly what the testimony filed on May 21st is 19 intended to accomplish.
20 I might point out to the Licensing Board and 21 the parties that we intend to file rebuttal testimony 22 addressing the particular criticisms included in the 23 hearing testimony.
I personally intend to ask Mr.
()
24 Herring a number of questions on cross-examina tion with 25 respect to the nature of these " errors" and their O
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1 significance.
2 CHAIRMAN BLOCH4 If we deny your motion, are 3
you going to ask for a continuance?
()
4 MR. GALLO4 Of the hearings?
5 CHAIRMAN BLOCHr Of this issue because the 6
same witnesses are involved in both problems, you say.
7 MR. GALLO:
If you deny our motion, I will 8
have to review the bidding at that time.
One of the 9
options, of course, is to immediately go up to the 10 Appeal Board and ask them to reverse the negative 11 decision or a denial of the motion.
12 Another option is to attempt to file the 13 information and take on the extra load.
The third
(
14 option would be to call the NRC staff and see if they 15 won't extend their deadline, since there is no 16 requirement for a 14-day deadline in 50.54(f).
But, one 17 of the option that is not available to me for my client 18 is to request a continuance.
19 I have one last thought.
I have to 20 apologize.
I wrote these letters on the airplane.
21 There is a case in point that we believe is analogous to 22 this situation, I could not cite it earlier to the 23 Licensing Board, it involves an Appeal Board decision in l
(])
24 the Vermont Yankee case.
My Ierox copy of the Appeal 25 Board's decision has lost the number of the citation, O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
480 1
and I will get my secretary to get it while others are
[}
2 arguing here.
3 It is a Memorandum and Order dated June 20, O
4 1974, ALAP 214, where the staff at that time issued an 5
order modifying a tech spec of the Vermont Yankee 6
operating license requiring that they inert the 7
containment of the Vermont Yankee.
The Appeal Board 8
found in the circumstances tha t it was appropriate to 9
exercise the authority under 2.77(d) and stayed the 10 effect of that order.
So there is, I think, precedence 11 for the relief I am requesting.
12 CHAIRMAN BLOCH:
That was a change in a tech 13 spec for a license that had not yet been issued, or a 14 change in tech spec for an operating reactor?
15 MR. GALLO:
It was an operating reactor, and 16 it had an operating license.
The modification that was 17 issued by the NRC staff modified the technical 18 specifications to tha t ope ra ting reactor and required 19 them to inert the reactor during operation.
20 Previous to that time, they were not operating 21 in an inerted mode.
The Appeal Board determined, for 22 the recsons that are listed in its order, that it was 23 appropriate to exercise authority.
I will read the
()
24 Appeal Board's bottom, "Pending our f urther ruling, the 25 Staff's order is modified to this extent:
The Applicant O
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()
1 is to carry out the preparatory steps, including 2
procurement of nitrogen, necessary to the implementation 3
of the Staf f's order, but it is forbidden to insert the 4
nitrogen into the containment atmosphere."
It simply 5
stayed the order that was issued by the Staff at that 6
time.
7 CHAIRMAN BLOCH:
Was the stay initially issued 8
by the Licensing Board in that case?
9 NR. GALL 0s No.
The history on this inerting to issue is somewhat checkered.
The Licensing Board in 11 this case found that it was appropriate to inert the 12 Vermont Yankee as a part of operation.
The Appeal Board 13 has some misgivings about that judgment, and during the 14 course of their sue sponte review of the Licensing 15 Board's initial decision took that issue under is advisement, and in their judgment decided that more 17 evidence was needed and ordered an evidentiary hearing 18 on that issue.
19 CHAIRMAN BLOCH:
So the appropriateness dealt 20 with an advance judoment on the merits of the issue, l
21 rather than merely the timing of its being raised?
l 22 MR. GALLO:
It involves both in my judgment.
23 The Appeal Board says in one place, let me see if I can
()
24 find the exact place.
I 25 The citation, f or the benefit of all parties, ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, O C. 20024 (202) 554 2345
482 1
is 7AEC Report 1002.
There are four reasons for
{}
2 modifying the Staf f 's order listed by the Appeal Board.
3 One is, "In short, the question here is not merely O
4 whether to permit the imposition pending a hearing of an 5
additional safety requirement, which at worst might 6
prove to be unnecessarily burdensone.
But the question 7
is whether the additional requirement, if implemented, 8
presents safety hazards of its own."
9 The " unnecessary burdensome" language tells me 10 that the Board's authority rests on two footings, 11 namely, the grounds that I assert in this case and also 12 whether or not there is a safety problem.
13 I might point out tha t the Staff has not 14 est ablished, by either its letter or its testimony 15 They have made no prima facie case here that any safety 16 problem here exists.
They are simply filing these 17 letters and using the overwhelming persuasiveness that 18 seems to follow Staff action to carry the day on 19 so me thing where they really should have filed an 20 affidavit.
21 CHAIRMAN BLOCH:
They have not yet issued a l
22 substantive order, have they?
This is still an 23 informational request, which is also different from the
(])
24 Vermont Yankee, isn 't it?
25 BR. GALLO:
Yes.
The authority given the O
l ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345 l
483
({}
1 Board under the section I cite applies to both orders, 2
which I believe this letter is because it directs us to 3
take action, and to other administrative actions by the 4
NRC staff.
In the case I cite, it just happens that the 5
staff issued an order, and that is why it is limited to 6
a discussion of the order.
7 It is an unusual case where a staff issues a 8
50.54(f) letter or any other kind of administrative 9
action approximately a week or ten days before the start 10 of a hearing on that very issue, and tha t is why there 11 is no other precedent.
12 JUDGE SHON:
Mr. Gallo, I note that in the 13 very section that you cite, however, the Board said that 14 the question was whether that additional requirement 15 could, if implemented, present serious safety hazards.
16 There is nothing like this at issue here at all in the 17 substance of the case.
18 MR. GALL 0s That is true, but that doesn't 19 denigrate our position at all.
I don't think that the 20 Vermont Yankee case turns at all on whether or not there i
21 was a safety issue.
The Board's right to exercise its 22 authority in the section I cite does not turn and solely 23 depend on whether or not there is a safety issue.
It is
()
24 out position that, number one, the Staff has failed to 25 establish that there is one.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
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1 We are trying to contest with the Staff the 2
vary issues which they are using as a basis for, 3
essentially, further discovery and further 4
justification.
One of the questions in the letter, they 5
vant us to produce a schedule for a further analysis, 8
which our present position is that it is unnecessary.
7 What is the sense of litigating this before 8
the Licensing Board if they are to be permitted to 9
essentially achieve the same end and achieve the 10 objectives that we hope to litigate on June 8 or 9.
I 11 really fail to see how the staff can be permitted to 12 have this two-way sword in these circumstances.
13 JUDGE SHONa Mr. Gallo, what they would be 14 litigating before'us would not be whether the pool in 15 its present state has some lack of integrity, but 16 whether the change to the new state could produce some 17 such lack of integrity.
These aren't really the same 18 thing.
19 HR. GALLO:
That is a distinction without a 20 difference, Judge Shon.
The pool boiling temperature 21 that is at issue and the stresses that the pool will see 22 are the same whether the pool is maintained as it 23 currently exists or is expanded.
()
24 There is no incremental difference as a result 25 of adding additional spent fuel to the pool, the
(
l ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
485
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I testimony shows that, both tha t filed by M r. Lance of 2
the NRC staff with respect to the criticality contention 3
and the testimony that was filed on behalf of the 4
criticality contention, namely, the Prolowitz testimony, 5
as well as the testimony we filed in response to this 6
very issue.
This distinction that the Staff attempts to 7
make is not real.
8 CHAIRMAN BLOCH:
Mr. Gallo, would you like to 9
conclude your argument?
10 MR. GALLO:
I will rest on that.
11 CHAIRMAN BLOCH4 Mr. Semmel.
12 MR. SEMMELs I think that it would be 13 appropriate to hear f rom the Staff first, since the 14 motion is addressed against the S taff.
15 CHAIP. MAN BLOCH:
I though t, because it was 16 addressed against them, it might be better to let them 17 have the last word and give Mr. Gallo a very brief 18 rebuttal, as we have done analogously for Mr. O'Neill.
10 MR. SEMMEL:
I would like to hear what their 20 position is on this.
21 CHAIRMAN BLOCH:
All right.
22 Mr. O'Neill, do you feel that same way, you 23 would rather wait for Staff?
()
24 MR. O 'NEILL Sure.
25 CHAIRMAN BLOCH:
Mr. Goddard.
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MR. GODDARD:
Judge Bloch, I will recognize
(}
2 that Mr. Gallo's argument has some superficial appeal.
3 However, I would point out that it is the Staff's O
4 position, as you stated, that the Board does not have 5
jurisdiction over presently existing pool loading 6
conditions.
7 I would distinguish Vermont Yankee primarily 8
on the fact that the issue there involved -- I am 9
quoting from the bottom paragraph on page 1001 -
"This 10 Board has been for some time and is presently conducting 11 a proceeding which is designed to resolve precisely the 12 question of whether the inerting requirement was 13 justified."
Then it goes on to speak of their 14 preliminary view that it was not justified.
15 In this case, the technical staff, which has 16 not got a mandate to harrass people, as Mr. Gallo might 17 have indicated, but rather has a mandate to protect the 18 public health and safety, has determined that the l
19 analyses provided by the Applicant are not sufficient to 20 assure the structural integrity of the present pool if 21 pool cooling were to be lost.
22 The fact that this is occurring shortly before 23 the hearing can best be attributed to the fact that the
()
24 Staff was forced to look at these matters in order to 25 prepare testimony on the adequacy of that pool to O
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487
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1 withstand the modifications which are proposed by 2
Applicant, and in fact came to the conclusion that they 3
did not even reach the results based upon these analyses O
4 which at present assure the public health and safety.
5 It is for this reason that the order to provide further 6
information was issued by the technical staff -- that 7
the 50.54(f) letter requesting information was issued by 8
the technical staf f.
9 The snslyses to which Mr. Gallo has replied, 10 and which presumably he intends to base his testimony in 11 this hearing upon, are in fact filled with numerous 12 errors, a number of which have been pointed-out by Mr.
13 Herring in his testimony, and which are pointed out in 14 the enclosure to the 50.54(f) letter.
This is an audit 15 review, and there may, in fact, be additional errors.
16 The position of the technical staff is that it 17 cannot conclude that the pool will maintain structural 18 integrity if pool cooling were lost.
19 One point that Mr. Gallo made, I think, has
(
20 some vrilidity, which I would like to address.
Staff I
l 21 recognizes that Mr. Gallo's witnesses will be tied up in l
l 22 the upcoming hearing.
While this counsel cannot commit 23 Staff to an extension of the time set forth in the 1 ()
24 50.54(f) le tte r, namely, 14 days, this counsel would 25 recommend that Mr. Gallo address an argument to the
(
l ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WA3HINGTON, D.C. 20024 (202) 554-2345
488 i
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1 technical staff for the purpose of extending the 2
deadline for providing this inf ormation.
3 However, the staff will go on record as saying 4
that this letter would have been issued without regard 5
to whether or not this hearing was taking place.
There 6
is just a question in the Staff's mind as to the 7
structural integrity of that pool in the event cooling 8
were lost.
The Staff intends to seek information in 9
order to assuage their concern.
10 CHAIRMAN BLOCHa Mr. Goddard, is it personally 11 your position that if there is a grant of a delay in the 12 response on that issue, that that would necessarily 13 require a continuance with respect to this particular 14 issue for purposes of the hearing?
15 MR. GODDARDs If I may have a moment, Judge 16 Bloch.
17 (Pause.)
i 18 NR. GODDARD:
I do not feel that a continuance i
19 is necessary under all circumstances, Judge Bloch.
If 20 Mr. Gallo obtains a continuance from the Staff for the 21 purpose of submitting his analysis after the 14 days, 22 which is set forth in this letter.
23 I might add, incidentally, that all 50.54(f)
()
24 letters, to my knowledge, establish a deadline in order 25 that there may be some finality and some perspective to O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 th ese matters.
2 I would presume that if Mr. Gallo is as 3
confident as he appears to be in the adequacy of his 4
analyses, he can make his point at the hearing through 5
the presentation of direct. testimony and through 6
cross-examina tion of Staff witnesses.
7 The Stsff does not know at this point whether 8
this question will be resolved adequately during the 9
hearing.
I f eel it would be premature to say that to continuance would necessarily be required.
I cannot 11 speak to the possible outcome of the upcoming hearing.
12 CHAIRMAN BLOCH:
Mr. Goddard, what I had in 13 mind was that the Staff has several open issues that 14 they are discussing with Applicant.
15 HR. GALLO:
Judge Bloch, they are not 16 discussing with Applicant.
We are litigating those in 17 the ca se.
18 CHAIRNAN BLOCH:
All right, I retract the 19 language -- that they are seeking to have clarified by 20 the Applicant through this process tha t Applicant is 21 challenging.
22 Now, if in fact we permit the Staff to go 23 ahead on this parallel process, my question is whether
()
24 the public's interest might not be better served if we 25 vsited for further clarification of issues until that O
ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
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1 process had proceeded to a point where the Staff felt 2
that we nowhad full information with which to go to 3
hearing.
O 4
Do.you that that is incorrect, and that we 5
ought to go to hearing whether those issues are still 6
subject to information requests from the staff?
This is 7
a question to Mr. Goddard.
8 MR. GODDARD.
This is the Applicant's 9
applica tion f or modification.
The Applicant seeks to go 10 forward.
The Staff feels, as indicated in Mr. Herring's 11 testimony, that there is no assurance that this pool 12 structure is siequate.
13 Hr. Gallo feels that he can make his client's 14 case on the record, then we feel that the public's 15 interest would be adequately served there.
It is not so 16 much a case of where the determination is reached nut 17 whether it is satisfactorily reached in the eyes of the 18 NRC technical s,taff.
19 CHAIRNAN BLOCHa So your position is that if l
l 20 he can go forward.on the record, without admitting new l
21 direct testimony, then there is no need for a 22 continuance.
23 MR. GODDARD:
That is correct.
If the Sta,ff
()
24 feels ttat there is a safety issue involved, the Staf'f 25 would not be hesitant to ask for a continuance in order l
(~
G)'
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
491 1
to develop safety issues at any time.
(}
2 We do not feel that anything is lost by 3
proceeding with the hearing on a parallel track to the O
4 50.54(f) path which is requesting additional information 5
from the Applicant.
6 As I indicated, I cannot speak for the 7
technical staff.
They may well grant Mr. Gallo an 8
extension to the deadline set forth in that letter for 9
furnishing the requested information, if he would apply 10 to them.
11 I would reemphasize the point which you made, 12 Judge Bloch, and that is, in the opinion of the staff, 13 this matter relating to existing pool conditions, 14 notwithstanding some of the language in Vermont Yankee, 15 is outside of the jurisdiction of this Licensing Board.
16 CHAIRMAN BLOCHs Thank you, Mr. Goddard.
Have 17 you completed your argument?
18 NR. GODDARD:
Y(, sir, I have.
l 19 CHAIRMAN BLOCH Mr. Semmel.
20 M R.
SEMMEL I just want to first say that 21 yesterday I served an additional pleading covering both 22 this issue, the question of the continuance, and one 23 other issue.
()
24 I, obviously, have not had the opportunity to 25 read the Vermont Yankee decision, but it seems to me, ALDERSON REPORTING COMPAriY,INC, 400 VIRGINIA AVE S.W WASHINGTON, D C. 20024 (202) 554 2345
492
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1 from what I have heard on the phone, that it relates to 2
an entirely diff erent ma tter, where compliance with the 3
matter that was stayed raised safety problems of its own O
4 and had nothing to do with a situation in which a party 5
sim ply says, "I can't get this information together 6
prior to the hearing."
7 I would also note that it was only three days 8
ago, I believe, when we were talking about the 9
Intervenors' request to stay the informal discovery that 10 was scheduled to take place and did take place on the 11 25th, with Mr. Gallo arguing that the Board did not.have 12 jurisdiction because part of that conference was the 13 on-going safety evaluation program in which, although it 14 overlapped,.the issues'were identical to the hearing, 15 but nevertheless were the independent responsibility of 16 the Staff.
17 CHAIRMAN BLOCH:
We did assert some 18 jurisdiction, so I suppose we didn't agree with 19 Applicant about that.
20 MR. SEMMEL:
Only to the extent of requiring 21 that we be f urnished with the transcript of the 22 conference because that relates to this proceeding.
23 CHAIRMAN BLOCH:
We also expressed an interest
()
24 in the timing of the further informal discovery and the 25 deposition.
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1 MR. SEMMEL Of course, the depositions were 2
clearly earmarked as part of this proceeding, I mean the l
3 formal depositions that had been noticed.
4 The only thing, which seems to me the most 5
important thing, again relates to the whole question of 6
the continuance.
In the pleading that we filed 7
yesterday, we asked tha t the Staff be ordered to file a 8
statement on this issue, as to whether or not they feel 9
they are fully prepared to proceed to hearing.
10 Mr. Goddard told me orally on Monday that that 11 was their position, but would not file a written 12 statement unless ordered by the Board.
It seems to me 13 to be even more important, in light of this May 21 14 letter from Mr. Lainas and also in light of the comments 15 by Mr. Goddard today.
16 Mr. Herring's testimony doesn't say that the 17 Staff is f ully prcpe. red f or a hearing in which they can 18 make a judgment and present testimony on the structural 19 integrity of the pool.
They say, in this letter, that 20 they cannot do that.
The errors and deficiencies in the 21 revised report are such that the analysis is not 22 sufficient to assure that the structural integrity of 23 the pool would be ms.sntained if pool cooling was lost.
()
24 CHAIRMAN BLOCH:
Mr. Semmel, I don't 25 understand.
They say they are ready to go to trial, O
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494 1
they are just going to take a position tha t is similar
)
2 to yours.
I don't see the problem.
3 MR. SEMM EL:
This is the posture in light of O
If the Applicant is willing to risk it, they are 4
5 ready to go to hearing, but at the hearing they are not 6
going to be able to come in with evidence -- the 7
evidence they filed -- which says that the structural 8
in tegri ty of the pool cannot be maintained.
All they 9
are coming in and saying is, "We don't know.
You have 10 to give us more information because you made sore 11 errors, and we need additional information."
12 CHAIRMAN BLOCH:
It has to carry the burden of 13 proof that the integrity of the pool can be maintained.
14 If the situation is that the Applicant has not proven 15 that, then Applicant f ails on a portion of its burden of 16 proof.
17 MR. SEMMEL I understand tha t, but 18 nevertheless it seems to me that the Staff should be in 19 a position of going in there -- All we are doing is 20 going into a hearing where the Staff says, "We don't 21 know the information."
22 Now th e A pplican t sa ys, "We also don't want to 23 give it to you.
Even under a 50.54(f) proceeding, we
' (])
24 are not going to give you that information because,"
25 they say, "it is going to be determined in this O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
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I hearing.
Ultimately, if Applicant prevails, Staff would 2
be prevented, as I hear them, from getting this 3
information and making a determination.
4 First of all, it seems to me that there is no 5
basis on which the Applicant can come forth and give 6
this information prior to the hearing.
It may be that 7
the Staf f was a t f ault in not discovering all the errors 8
in the original report earlier.
But be that as it may, 9
the Staff in its letter that they find basic errors and 10 deficiencies in the revised analysis.
11 I just don't understand going to a hearing 12 under that posture, particularly in light of the f act 13 that there is no reason to go to a hearing on June 7, 14 other than months ago a date was selected which we then 15 thought was an appropriate date, but which now has W
proved, at least on two issues, not to be an appropriate 17 date.
18 CHAIRMAN BLOCH:
Mr. Semmel, I sense that most 19 of your argument is addressed to the continusnce rather 20 than to the granting of the TRO.
l l
21 MR. SEMMEL I oppose the TRO because I don't l
22 think that -- As a matter of fact, what Mr. Gallo has 23 said is, we are going to present the answer to this
()
24 letter at the hearing.
He did not say that directly, 25 but in so many words, and that is what he has to attempt O
l ALDERSON REPORTING COMPANY,INC, 400 VIRG:NIA AVE., S.W., WASHINGTON, D.C. 70024 (202) 554 2345
496 l
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1 to do.
2 CHAIRMAN BLOCH:
I don't think he seid that.
3 I think what he said was that they are going to a ttem pt 4
to prove that the letter is misguided and that all the 5
information is already in the record.
6 MR. EEMMELs Perhaps that is the case, but if 7
that is the case that it is already in the record, it 8
would take a very short time to demonstrate that.
It 9
would not be very burdensome.
10 CHAIRMAN BLOCHs Are you saying that he can 11 demonstrate it to the satisfaction of the Board, whether 12 or not he can to the satisfaction of the Staff.
13 MR. SEMMEL:
He would already have that 14 information in his hands.
In addition, we have the 15 question of the Staff 's independent responsibilities,
(
16 independent of this proceeding.
17 CHAIRMAN BLOCH:
During rebuttal, of course, 18 Mr. Gallo can address that, but I think his position is 19 that we have all the information already.
We have it in 20 advance, and he is not planning to file any new 21 information.
22 MR. SEMMEL:
He said that he is going to file 23 rebuttal testimony.
()
24 CHAIRMAN BLOCH4 They always can file rebuttal 25 testimony.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
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1 MR. SEMMEL:
Which presumably will rebut Mr.
2 Herring's testimony on this very question.
3 CHAIRMAN BLOCH4 You are saying that they will Oi
)
4 be putting in rebuttal testimony that will be new.
When 5
Mr. Gallo has a chance for his rebuttal comments, I hope 6
he will comment on that.
7 MR. SEMMEL:
What I am saying is, it is either 8
in already, in which case it is no burden to point out 9
where it appears, and the Staff apparently does not 10 think that it is in; or if they are going to put in new 11 testimony, whether you call it rebuttal or not, we 12 should have it in advance so that the Staff could have a 13 chance to analyze the testimony, otherwise we will have 14 it without any adequate opportunity for anyone to look 15 at it, or for anyone else to rebut it.
16 CHAIRMAN BLOCH:
Mr. Semmel, do you have 17 further argument?
18 MR. SEMMEL:
No, tha t is all.
19 CHAIRMAN BLOCH:
Mr. O'Neill.
20 MR. O'NEILL:
This is the issue regarding the 21 boiling under higher pressure at the bottom of the pool, 22 and the ability of the pool to withstand that.
Is that 23 correct?
()
24 CHAIRMAN BLOCH:
Boiling at a higher 25 temperature, and the ability of the concrete and the O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) f *4-2345
498 1
structure of the pool to withstand the boiling.
(}
2 MR. O'NEILLs That was the subject of the 3
summary disposition order you entered earlier than the O
4 others.
Is that correct?
5 CHAIRMAN BLOCH:
No.
That was the criticality 6
contention that we issued earlier.
This is not directly 7
related to criticality.
There are other issues on 8
boiling related to criticality, but it is not that 9
issue.
10 MR. O'NEILL Are the calculations at the base 11
,of these two issues the same?
12 CHAIRMAN BLOCH:
I guess I prefer not to 13 comment on that.
)
MR. O'NEILL Okay.
14 15 It just'seems to me that it is a very 16 important issue, and it should be fully aired.
17 I I think, from what I have heard about the ts Vermont Yankee case, that case is not similar, as has 19 already been pointed out, not is the relief sought 20 similar.
The Vermont Yankee Board didn't completely
,21 stay the order, they said, " Prepare to do the acts that 22' the Staff wants, but hold on."
23 We are talking about investigation of whether
(])
24 or not there is a safety matter, and not the actions 25 concerning that safety matter.
I think, really, we have O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554-2345
499
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1 to look at that to see if there is really a problem 2
there.
If there is an argument about whether or not 3
there is a safety issue, then there is a safety issue.
O 4
If you can't prove that there is no safety issue, then 5
there is a safety issue.
6 As I understand, as far as going ahaad with a 7
parallel action in which this would be investigated as 8
we are going along with the hearing, but actually in the I think that if there were a number of small 9
hearing 10 problems at the plant, each of which would not cause the 11 denial of the license amendment, I think together a 12 number of these could provide such a number of small 13 problems that the expansion would be unwise.
So whether i
14 this issue-is in itself.important for this hearing, when 15 inspected along with other problems, it may indeed 16 become very important.
17 Finally, it just seems to me that the Licensee i
18 is following a pattern consistently of trying to 19 suppress information, trying to suppress witnesses that 20 we have put forward, trying to avoid having a full 21 airing of the issues.
I think we just can 't responsibly 22 allow that because the public has a right to know, and 23 the public has the right to be assured that this place
()
24 is safe.
25 CHAIRMAN BLOCH:
Mr. O'Neill, have you ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 crapleted your argument?
?
MR. O'NEILL:
Yes.
3 CHAIRMAN BLOCHa Mr. Gallo, your brief 4
rebuttal.
5 MR. GALLO First, with respect to the 6
argument of Mr. Goddard, he stresses that in his view 7
the Lainas letter is directed toward the pool in its 8
present position and operation of the reactor.
I can 9
only stress to the Board that the questions asked by M r.
10 Lainas, questions one, two, and three in his letter, 11 turn directly on whether or not these asserted errors on 12 pages one and two of the a ttachment, which are i3 duplications of unsworn statements in Mr. Herring's 14 testimony, are correct.
That is a matter that will be 15 adjudicated in this proceeding.
16 A number of people making argument have 17 indicated that it is a simple matter to point to 18 information on the record.
This letter as filed on May 19 21st and does not necessarily take into account the 20 substantial direct testimony filed by Witness Sackimo by 21 Licensee on this very issue, including Exhibit D which 22 is additional information, an additional analysis which 23 addresses directly some of the points raised by Mr.
()
24 Herring.
So that Staff, if anything, has prematurely 26 taken this action.
O AL" 'RSON REPORTING COMPANY,INC.
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1 I might point out that what we are seeking 2
here is interim relief, so that we can file by Tuesday a 3
proper motion to seek permanent relief.
Mr. Goddard's O
4 suggestion, while he is not ready to say one way or the 5
other, the Staff might be sympathetic if we request an 6
extension of the 14-day day deadline, seems to me to 7
implicitly echo sgreement to my position that the 14-day 8
days are arbitrary and capricious as established by the 9
Staff.
They knew the circumstances of this proceeding to when they issued the letter.
It is not coincidence that 11 it was issued on May 21st, the same day that Mr.
12 Herring's testimony was filed.
13 This is not adequa te relief.
I cannot advise O
sd 14 my client to' seek the a'ssistance and reasonable action 15 of the NRC staff when every evidence that I have seen so 16 far with respect to this letter is that it is not 17 reasonable in terms of the deadlin.
18 CHAIRMAN BLOCH:
Mr. Gallo, if you could hold 19 for one moment, I would like you to complete your 20 rebuttal, but I would like the Staff to comment on l
21 whether in fact there was any undue delay in the filing 22 of that letter?
23 MR. GODDARD:
Yes, there was.
There was
()
24 delay, but I would not call it undue.
That letter has l
25 been in the drafting stage for some time prior to the ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
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1 21st, and it was not by anything but a coincidence that 2
it went out the same day as the Herring testimony.
3 While I am not able to comment on this right 4
now, I will respond to Mr. Gallo's comment that we seen 5
to implicitly agree with him, we do not implicitly agree 6
with Mr. Gallo.
If he wants to ask Mr. Lainas for a 7
continuance, I think that would be fine.
If he doesn't 8
9 MR. GALLO:
I am going to object.
10 HR. GODDARD 4 Did I answer your question, Mr.
11 Chairman?
12 CHAIRMAN BLOCH That is right, I just wanted 13 that one question answered, Mr. Goddard.
(
14 Mr. Gallo.
15 MR. GALLO:
Yes, let me see.
I think a more 16 pertinent question, perhaps, to the Staff migh t be, how 17 long have they known about these alleged errors prior to 18 May 21st.
19 CHAIRMAN BLOCH:
Would you like the Staff to 20 answer that?
21 MR. GALLO:
Only if the Board deems it 22 pertinent.
23 For the sake of a complete record, as
()
24 suggested by Mr. O'Neill, I would like to have the staff l
25 answer that, if the Board will ask them to answer.
()
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1 CHAIRMAN BLOCH:
If they would, and then you 2
will be able to complete your rebuttal.
1 3
HR. BACHMANN:
I cannot speak with complete 4
accuracy.
During the review of the expansion issue, the l
5 staff became aware of the problems perhaps as long ago 6
as a month, although I will not be absolutely certain of 7
that, and perhaps it may might have been before I was 8
assigned to the case.
9 The point I think we want to make is that if 10 this had been an extremely serious health and safety 11 problem, the Staff would have issued an order.
- Instead, 12 it was decided that it was serious, but not ultimately 13 serious, therefore, we issue the 50.54(f) letter.
14 As Mr. Goddard indicated earlier, it was 15 perhaps an unfortunate, or whatever it was, coincidence 16 that they happened to go out at about the same time.
17 There is a parallel path.
Again, I must reemphasize the 18 fact that if the Licensee --
19 MR. GALL 0s I am going to object again, Mr.
l 20 Chairman.
He has answered the question to the best of 21 his recollection, and he is now addressing himself to 22 reDuttal argument.
23 CHAIRMAN BLOCHs I guess I would like to have
'(])
24 him answer one more question which is whether he would 25 comment on the raason for their taking as much as one O
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1 month.
I would like to finish on that, and then Mr.
2 Gallo will complete his rebuttal.
3 MR. BACHMANNs To the best of my knowledge, 4
and I do not have a technical representative here with 5
me and I am going from the conversations I have had with 6
them, with that caveat, I might state that when the 7
problem came up, it was discussed at great length within 8
the technical staff, and many options were open to us.
9 During those discussions, I might add, the fact of the 10 hearing did not come up, only in the fact that we knew 11 that it was pending.
12 The option, as I indicated before, might have 13 -been an order shutting down, or who knows.
The point is 14 that the 50.54(f) letter was issued because there is a 15 concern.
The resson for the " delay" was because of what 16 was the proper course of action knowing that we had the 17 problem, and the 50.54(f) letter was seized upon as a 18 means of reassuring the Staff that the continued 19 operation of the pool as it now stands was adequate.
20 Does that answer your question, sir?
21 CHAIRMAN BLOCH:
Yes.
22 JUDGE SHON:
Mr. Goddard, under Commission 23 regulations, if you did decide that the integrity of the
()
24 fuel pool merited a shutdown, you would issue a show 25 cause order, and that indeed would afford the Licensee O
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1 an opportunity for. hearing later on, would it not?
2 MR. BACHMANN:
Yes, it would, but that is not 3
the steps we intended to take.
We did not feel it was 4
of immediate health and cafety concern, albeit we did 5
decide that it was of health and safety concern, and 6
because of that we did the 50.54(f) which is a step 7
short of issuing an order.
8 JUDGE SHON:
I understand.
Thank you.
9 CHAIRMAN BLOCH4 Mr. Bachmann, I take it that 10 you do agree that the technicality was not fully 11 observed and that this 50.54 letter should have been 12 filed in this case.
13 MR. BACHMANNa I am not quite sure I 14 understand your question.
15 CHAIRMAN BLOCH4 It seems to me that whether 16 or not it relates to the integrity of the pool in its 17 current position, this issue was clearly relevant to 18 this case and that it would have helped somewhat if it 19 had been filed in this case at the time it was issued, 20 and it was not.
21 MR. BACHMANN:
Would you just give me a 22 moment, sir.
23
( Pause. )
()
24 MR. GODDARD:
Judge Bloch, this is Mr.
25 Goddard.
O ALDERSON REPORTING COMPANY, INC, 400 VIRGINI A AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
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I am not quite sure we understand your
(}
2 question.
This 50.54(f) letter was served on all 3
parties to this proceeding at such time that it was O
4 issued to the Applicant.
~
5 MR. O'NEILL:
I am sorry, that is not true.
6 MR. SEMMEL:
I never received a copy.
7 CHAIRMAN BLOCH:
The Board never did.
8 HR. GALLO:
I will second or third that.
I 9
have mine from the client via telecopy.
10 HR. BACHMANN:
If the parties did not receive 11 it, both Mr. Goddard and I were out of town in the last 12 few days, we will certainly ensure that it is forwarded 13 to you immediately after this conversation is over.
I 14 have no excuse for that, and I don't understand why it 15 wa sn 't sen t.
16 MR. SEMMEL:
Mr. Gallo took care of that in 17 his May 25th letter asking for the stay, so we all have 18 it now.
19 CHAIRMAN BLOCH:
Mr. Gallo, your completing i
20 remarks, please.
21 MR. GALLO:
I would like to pick up on the 22 question that Judge Shon asked.
23 Indeed, if the Staff did issue an order under
()
24 a show cause order, the Licensee would have an 25 opportunity for a hearing before it was made effective, O
ALDERSON REPORTING COMPANY. IfiC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 absent some extraordinary showing of good cause that the
(])
2 Staff might make to make the order immediately 3
effective, whereupon our relief to take action f rom that 4
order is clear in terms of appeal within the Commission 5
and to the Court.
6 Here we have a complete abuse of that due 7
process situation under the Staff's line of argument.
8 They argue that they can simply seek information that is 9
at issue in this proceeding, without anybody else having 10 jurisdiction to stay their hand.
I just think that is 11 inappropriate.
12 Moving on from there, I would like to point 13 out that this whole question of pool boiling really 14 arose in the Christa Maria Contention Eigh t, and that is 15 a contention that postulates a TMI-2 type accident and 16 pool boiling arises because of the fact, it is 17 postulated in the contention, that you have an inabill't 18 to enter containment in order to make up to the pool.
19 This is not a design basis accident that is 20 currently in 10 CFR Part 50, or any of its reg guides, 21 etc.
The staff is taking this issue out of our spent 22 fuel case and somehow or other translating it into some 23 other type of issue that they think they can envelop
()
24 within the purview of Mr. lainas' letter.
25 On the question of the nature of licensea's O
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1 presentation at these upcoming hearings, we intend to 2
cross-examine Mr. Herring vigorously to test the 3
adequacy of what he is asserting.
4 His testimony is currently being reviewed by 5
our expert, and the analysis that he is challenging is 6
being reviewed by our expert.
I believe that we will 7
determine that rebuttal testimony is appropriate because 8
I am not confident that cross-examination of Mr. Herring 9
alone will carry the day on the issue.
What we need and 10 what this Board needs is to hear expert opinion on the 11 point.
12 I suspect, although no firm decision has been 13 made, that we will submit rebuttal testimony on each and 14 every one of the points made by Mr. Herring.
I have to 15 be candid, I am not saying at this juncture that Mr.
16 Kr-fring is wrong on each and every one of his points.
I 17 am not saying that he is correct either.
I just want to 18 make that a clear statement for the benefit of the Board 19 on what our intentions are at this hearing.
20 CHAIRMAN BLOCH:
Mr. Gallo, in terms of this 21 rebuttal testimony, which will introduce new facts that 22 Intervenors have not had a chance to review, do you 23 think that they will be in a fair position at this
()
24 hearing, since you are talking about new technical 25 analyses that could have been submitted at an earlier i
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1 date, but is in a kind of a mixed jumble because of the 2
vay Staff finally have gotten into this issue.
3 MR. GALLO:
That is true.
Therefore, the 4
Licensee can't be held responsible for tne circumstances 5
ve are in.
It is the Staff who has fallen down on the 6
job.
For once Mr. Semmel and I agree completely.
There 7
is no question about this.
8 The Staff has not come in with an affidavit or 9
any other kind of assertion that disavows the entire 10 affidavit of Mr. Phefferlan, or the prior review by the 11 nameless prior reviewer that accepted our original pool 12 boiling analysis.
They have simply used M r. Herring's 13 unsworn testimony as a folcrum for moving forward and O
14 taking some kind of licensing action.
15 On the point of the fairness to Intervenors, 16 it is the practice in NRC licensing cases to submit i
17 rebuttal testimony as soon as the issue is heard, and 18 that would be the time that I would submit my 19 testimony.
20 This issue is presently scheduled, as I said, 21 to be heard on June 8 or 9.
I would move at the time of 22 filing any rebuttal testimony that it be scheduled to be 23 heard in the second week.
If objections are made by
()
24 parties because or the time constraints, I will have to 25 meet them at that time.
It is premature to deal with O
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1 the points now, since we do not know the size and 2
dimensions of the rebuttal testimony.
3 MR. GODDARDs Judge Bloch, with reference to O
4 the comment about Mr. Herring's unsworn assertions, I am 5
sure that we could get Mr. Herring to swear to those --
6 MR. GALLos I am going to object.
This is my 7
rebuttal argument, and he is interfering with it.
He 8
had an opportunity to deal with the issue when he heard 9
me make the assertion in my direct.
10 CHAIRMAN BLOCH This is Mr. Gallo's time for 11 argument.
12 MR. GALLO:
Let me see if I have one last 13 point, and I am checking my notes.
14 All I can say'is, wha tever Mr. Semmel filed 15 yesterday in the way of additional papers for 16 continuance, I have not yet received it.
17 CHAIRMAN BLOCH We are only arguing the TRO 18 now, and not the continuance.
19 MR. GALLO:
Tha t is right, I understand that, i
20 but he seemed to feel that there was some relationship 21 with this issue.
22 MR. SEMMEL:
I was just saying that I had i
23 included in that filing reference to this motion as
(])
24 well.
25 MR. GALLos I guess, after checking my notes, O
ALDERSON REPORTING COMFANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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Judge Bloch, I have hit as many points as I can at this
(}
2 point, and I will end my rebuttal argument.
1 MR. O'NEILLs May I point something out?
O 4
CHAIRMAN BLOCHa I would like, before anyone 5
points anything out, for them to begin by stating why it 6
is appropriate for them to point it out now.
It is only 7
if they can argue that there is a reason that they have 8
to talk now that they will hear from them.
9 Mr. O'Neill.
10 MR. O'NEILL:
This is regarding the unsworn 11 testimony.
I just believe Mr. Gallo is somewhat 12 misrepresenting something.
13 It is my understanding that testimony 14 submitted before the hearing is not sworn because it 15 will be sworn to a t the hearing, and that is understood 16 by all parties.
17 CHAIRMAN BLOCH:
Is there anyone else who just 18 must speak at this time?
19 (No response.)
i i
20 CHAIRMAN BLOCH:
There being no one else who 21 must speak, the Board will take approximately a 22 five-minute recess on the phone -- don't hang up -- in l
23 order to consider this matter.
()
24 (Recess.)
25 CHAIRMAN BLOCH4 We are back on th e record.
O I
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1 The Board is ready to rule.
2 We have not been listening to the discussion 3'
between the parties which was conducted at a low level 4
while we were conferring, so we are not cognizant of 5
anything that was discussed.
6 We would point out that the motion before us 7
is a motion of a temporary restraining order.
8 Ordinarily, temporary restraining orders are only issued 9
for irreparable injury.
We interpret this motion, in 10 fact, to be a motion pursuant to Section 2.717(b) and 11 it, therefore, is possible that the ordinary standard of 12 irreparable injury is not the correct standard.
13 Section 2.717(b) gives the Board the authority O
14 to modify a Board order which is "related to the subject 15 matter of the pending p roceeding. "
This might seem to 16 give us sufficient authority to issue an order in this 17 case if it is " appropriate."
18 It seems to us that ordinarily such orders 19 would only be issued with respect to substantive orders 20 and to orders to collect information.
We believe that 21 deciding what is appropriate requires a weighing of the 22 effects of our action in this case.
Were we to stay the 23 obligation to respond to the Staff's order, we might I
24 ca use a delay of one to six weeks, assuming we decided 25 rapidly on this particular issue at the con:lusion of O
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1 the hearing, the time the staff will have to consider 2
whether or not to issue a show cause order which could 3
cause a termination of the operation of the Big Rock 4
plant.
Tha t is a possibility that could ensue if we 5
were to issue an order under 2.717(b).
6 On the other hand, we must weigh the injury to 7
the Applicant in being required to comply wi th the Staff 8
order.
We find that it would be inconvenient.
Its 9
witnesses are being prepared for a hearing, which is to occurring in very short order, and this would involve at 11 the very minimum substantial annoyance to those 12 witnesses.
13 However, the testi=ony they are being asked to O
14 provide to the Staff is very similar to the scope of the 15 issue before this Board.
The Applicant has stated tha t 16 whether or not it is required to respond, it will still 17 wish to go forward at the hearing.
So it is not so 18 inconvenient that it would be interfered with to the 19 point where it could not present its case in time at the 20 scheduled hearing.
I 21 We consider that the role of the Staff in our 22 proceedings is a specitl one.
It has an independent 23 responsibility for the safety of reactors which are not
()
24 in operation.
The jurisdiction of the Staff goes beyond 25 our own.
The Staff supervises continued operation,
()
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1 while our jurisdiction is limited only to the expansion 2
of the spent fuel pool.
3 While the issues involved overlap greatly and 4
in many respects are identical, we would not be able to 5
issue an order which would result in the cessation of 6
operations of the Big Rock Point plant, while the Staff 7
can.
8 We do not think that under the circumstances, 9
the difficulties that Applicant will experience are more 10 important than the public interest in allowing the staff 11 to carry out its important function freely as it sees 12 fit.
13 We have studied the Vermont Yankee case, which 14 was cited to us, and we are not persuaded that we must 15 issue the order which the Applicant asks to issue.
In 16 Vermont Yankee, there were contradicting effects of the 17 substantive action which the Applicant was being called 18 on to make.
There actually was some question about l
19 whether the safety of the reactor would be improved if 20 th e Applicant were to take that final step.
21 Nevertheless, in Vermont Yankee, the Appeal 22 Board went along with requiring the Applicant to take 23 preparatory steps to inert the container, and we think i ()
24 that the collection of information will in no wey 25 endanger the Big Rock Point plant.
()
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1 It is not the kind of stay order that is 2
appropriate order for us to effect.
Consequently, the 3
motion, which was called a motion for a temporary 4
restraining order, is denied.
5 Just a moment please.
6 (Pause.)
7 CHAIRMAN BLOCH:
Are there any motions for 8
reconsideration or clarification?
9 MR. GALLO:
I guess I would ask the Board to 10 reconsider on the ground that it seems to me that the 11 Staff position with respect to seeking this information 12 is inconsistent with the stated position of Staff 13 counsel, which is that they are prepared to go forward 14 at the hearing and go up or down on this question.
15 So the information that the Staff seeks will 16 or will not be available by the time of hearing, June 8 17 or 9 as I have indicated, and therefore the additional 18 prejudice that would accrue would be that, if we 19 responded in full, we would essentially jeopardize our 20 litigating position before the Licensing Board by 21 premature disclosure of information.
22 CHAIRMAN BLOCH:
A litigating disadvantage in i
23 that the Staff would be getting unfair discovery.
()
24 MR. GALLO:
That is right, not only the Staff, 25 but Mr. Semmel as well, unlike th e sta f f, if we file a O
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1 response to the 50.54(f) letter, we will serve it on the 2
Board and all the other parties.
r~
3 CHAIRMAN BLOCHa Is this a fair ground for
()g 4
reconsideration since you never made that argument 5
before?
6 MR. GALL 0s It is questionable whether or not 7
it is.
I will have to say that under the circumstances, 8
perhaps this is a point that should have been made 9
earlier, but I would argue most strenuously that what is 10 at stake here is so important that the Board should not 11 bar consideration of this argument at this point.
12 I was implicitly trying to make that point, 13 and perhaps in the press of argument did not articulate
~O 14 it clearly earlier, that the a ttachment to the Lainas 15 letter exactly seeks information on points that are 16 going to be litigated in this case.
17 I had indicated earlier that June 4th was the 18 deadline for replying to this letter.
I also indicated 19 that informally had agreed to take up this issue June l
20 8th or 9th.
It necessarily f ollows, therefore, as I 21 have just pointed out to the Board, that we will be 22 prej udiced by having to comply with the Staff's order.
23 CHAIRMAN BLOCH:
Juse to summarize, your two
()
24 grounds are unfair discovery and inconsistency with the 25 Staff position?
I j
l ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 MR. GALLO Yes.
2 The Board questioned them at length as to 3
whether or not they wanted a continuance because they O
4 were not prepared to go forwsrd.
Apparently, their 5
position is so selid that they don't have a problem with 6
respect to needing this information.
They are prepared 7
to meet us head on and defeat us on this issue.
That 8
being the case, I don't know why they need this 9
information.
They can issue their order to show cause 10 to suspend operation.
11 CHAIRMAN BLOCHs Mr. Goddard.
12 ER. CODDARD:
Yes, sir, 13 CHAIRMAN BLOCH:
Would you like to comment on 14 just these two grounds for reconsideration?
15 MR. GODDARD:
Yes.
As indicated in Mr.
16 Herring's testimony, the staff is prepared to say that 17 Applicant has not provided sufficient information to 18 conclude that the structural adequacy of the pool will 19 be maintained in the event of boiling.
20 As to the additional information, the l
l 21 technical staff is seeking this inf ormation with a view I
l 22 toward determining whether the present pool loading will 23 present a problem.
If Mr. Gallo feels that we should
()
24 have this information in plenty of time prior to the 25 hearing, it would seem as though Mr. Gallo is in effect
)
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1 arguing that the Staff should appropriately ask for a 2
continuance at this time.
3 We are not doing so, but perhaps Mr. Gallo, if 4
he were not under the restrain of his client, would like 5
to do so on his own behalf.
6 MR. GALLO:
In response to that, Judge Bloch, 7
I do not want to do that.
We are prepared to take the 8
Staff on on the assertions.
Staff counsel characterizes 9
the Herring testimony as concluding that there is not 10 adequate information upon which they believe the 11 integrity of the pool is sufficient.
12 I put it to the technical members of the 13 Board, that the pool boiling question is the same O
14 regardless of the expansion of the pool as the draft 15 testimony shows and the record in this case shows.
16 Therefore, if they are so convinced in that, they don't 17 need this information.
All they have to do is issue an 18 order righ t now directing us to show cause.
Then we 19 have 20 days to respond and request a hearing.
20 CHAIRMAN BLOCH:
You address th*t to the 21 technical members of the Board?
22 MR. GALLO:
I apologize for excluding you, 23 Judge Bloch.
()
24 The Board must take cognizance of the fact 25 that the sanction in the Lainas letter about continued O
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1 operation turns on the very information that is being 2
litigated in this case.
Staff counsel has religiously 3
separated himself from the technical aspects of the 4
case.
I expect this Board to see through the situation 5
with respect to the scope of this letter.
Essentially, 6
they are litigating in a parallel path the same issue 7
before the Board.
8 CHAIRMAN BLOCH:
Mr. Gallo, I have a problem, 9
and the problem is that you argued first, and then the 10 staff argued.
I don 't even know if the staff finished, 11 and you interrupted them in the way you were objecting 12 to them interrupting you before.
13 I would prefer to find the Staff's position O
14 f ully articulated.
We v'111 try to give you a brief 15 rebuttal at the end, but please try to hold until that 16 opportunity.
17 MR. GALLO:
Judge Bloch, in the heat of the 18 argument, I was carried away.
You are quite correct, 19 and I apologize.
20 MR. O'NEILL:
Judge Bloch.
21 CHAIRMAN BLOCHa Mr. O'Neill, are you also l
l 22 trying to interrupt the Staff?
23 MR. O'NEILL:
Just because we are receiving a
()
24 delivery a t this time, and I have to either forego my 25 argument or upeak at this point.
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1 CHAIRMAN BLOCH:
Would the Staff accept that?
2 MR. GODDARDs The Staff will accept that.
3 CHAIRMAN BLOCH:
Mr. O'Neill, please.
4 MR. O'NEILL:
It seems to me that one of two 5
cases exists.
Either this falls under the jurisdiction 6
of the Board or it doesn't.
If it doesn't fall under 7
the jurisdiction of the Board, if it just a different 8
mitter from the spent fuel pool hearing, it doesn't seem 9
to me as though the Board has the authority to issue a 10 restraining order.
11 If it does fall within the jurisdiction of 12 this hearing, it seems as though the testimony should be 13 uncovered before we go to a hearing.
It seems to me O
14 that if the pool is' unsafe now, it would also be unsafe 15 if the spent fuel pool were expanded.
16 As far as the scheduling of this matter is 17 concerned, if the letter were answered on the 4th of 18 June, there is no reason that the informal agreement as r
l l
19 to when the testimony would be submitted couldn't be 20 changed in order to allow people to have more time to 21 examine the issues.
22 I had something else to say, but I can't 23 remember it at this point.
It just seems to me that it
)
24 is an important issue and it should be brought to light 25 during th e hearing.
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1 CHAIR 3AN BLOCH:
Thank you, Mr. O'Neill.
2 Mr. Godda rd.
3 MR. GODDARD:
Yes, as Mr. Bachmann indicated, 4
if the Staff had felt that this was a matter of 5
immediate safety concern, Mr. Gallo would have gotten 6
the show cause order which he seems to desire.
On the 7
other hand, the staff, while identifying a concern of 8
health and safety nature in this case, did not feel that 9
the probability or the immediacy was such that a show 10 cause order was mandatory.
11 It was the Staff 's decision that the 12 information which it sought would assist it in reaching 13 a conclusion as to the adequacy of the present pool O
14 structure, and tha t is precisely what happened.
15 I will emphasize, as Mr, O'Neill pointed out, 16 the primary issue before this Board is the one that you 17 recognized initially, Judge Bloch, and that is whether 18 or not it is within the jurisdiction of this Board.
The 19 Staff submits that it is not.
As Mr. Gallo stated, 20 these two things are in f act proceeding on a parallel 21 track, and that is the regulatory scheme.
22 I have no further argument.
I think the Board 23 has heard more than enough from the Staff and other
()
24 pa rties in the case.
25 CHAIRMAN BLOCH:
Thank you, Mr. Goddard, but I O
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1 do want to hear from Mr. Semmel.
2 MR. SEMMEL:
Very briefly.
I agree that there 3
is a fundamental inconsistency between the Staff's 4
position that they are prepared to go and the position 5
that in order to make a determination of the health and 6
safety issue here, they need more information.
7 Secondly, if this is another form of informal 8
discovery, I would like to just point out tha t this kind 9
of informal discovery has been going on throughout this 10 proceeding.
Essentially, the Licensee, when it wants to 11 because it was in its interest, provides all the experts 12 to the NRC and has nice informal meetings.
When ther 13 now think that it is against their interest, ther 14 suddenly say, it is too much-for us, and it is 15 burdensome, and so on.
To reconsider the Board's ruling 16 on the ground that this is some form of discovery would 17 be inconsistent with the established practice of 18 conducting this kind of discovery in the proceeding.
19 CHAIRMAN BLOCH:
Very brief rebuttal, Mr.
20 Gallo.
21 MR. GALLO:
Other than to note that Mr. Semmel 22 and I see eye to eye on the question of the Staf f 's 23 inconsistent position, I have nothing further.
()
24 CHAIRMAN BLOCH:
We will take a very brief 25 recess.
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1 (Recess.)
2 CHAIRMAN BLOCH:
We are prepared to rule.
3 Applicant has moved f or reconsideration of the 4
order that we have just issued on the record.
5 Applicant's motion is denied.
6 They have raised an important issue that was
?
not previously raised relating to whether it was unfair 8
to require them to respond prior to the hearing and, l
9 therefore, to expose their case before it ordinarily 10 would be exposed under the procedures that we have 11 established.
12 Weighing this additional possible unfairness 13 to the Applicant into a balance of appropriateness does 14 not, however, throw the balance in the direction that 15 the Applicant wishes.
We would point out that the 16 unfairness to Applican t is somewhat of f set by the 17 additional opportunity for Intervenors and Staff to have 18 access to technical information which may be helpful in 19 the full preparation of their cases.
20 We also would point out that we are not 21 binding the Staff to the present deadline.
If the Staff 22 feels that Applicant should be allowed additional time, 23 in its discretion, pursuant to its independent
()
24 responsibilities, the staff may grant or deny that 25 request for an extension.
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()
1 We don't find that there is any inconsist?ncy 2
in the staff's position in this case.
The burden of 3
proof for demonstrating the saf ety of the fuel pool for 4
the purpose of the amendment rests on the Applicant, and 5
we interpret Staff to be telling us that they believe 8
that Applicant cannot carry the burden of proof on that 7
issue.
8 On the other hand, if the Staff were to issue 9
a show cause order, the burden of proof to demonstrate to lack of safety of the power plant would rest on the 11 Staff, and additional information might be needed before 12 the Staff would be willing to take action of that 13 momentous sort in a ttempting to close down the presently O
14 operating reactor.
15 We see no basic inconsistency, and we feel 18 that it is appropriate to deny the motion for 17 reconsideration.
18 The next issue for our consideration is the l
l 19 motion for reconsideration filed by the Applicant.
l i
20 Applicant has asked that we reconsider one sentence in 21 an order we issued earlier this week relating primarily 22 to whether or not the record in this case will be clased 23 prior to the filing of Staff testimony.
()
24 Mr. Gallo, wohld you please speak to that 25
- 1. sue.
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1 MR. GALL 0s Yes, Judge Bloch.
2 The papers I filed in this case and the motion 3
quite clestly set out our position.
We believe that the 4
Board ruled on May 6 that the Staff had not made a 5
showing of good cause for a delay until June 25.
6 What the Board had decided was that because it 7
was the Staff, they could come forward by June 25, but 8
that the proceeding was going forward on the basis as 9
outlined in the Staff's prior orders, including the 10 crane issue.
11 If the Staff believed, after the record was 12 closed -- I must say that assumes that it is otherwise 13 appropriate to close it, but assuming it is, that if the O
14 Staff wanted to come forward.and make a showing with 15 respect to the spectra, they could move to reopen the 16 record.
Under those circumstances, the proper standard 17 for reopening would be that set out in the Vermont 18 Yankee case and the cases that follow that precedent.
19 The situation in the present order being 20 complained about is that it seems quite clear from the 21 sentence in the Board's order that the Board appears to 22 believe that if it were otherwise appropriate to close 23 the record on June 15th, the Board would not do so
()
24 because it would leave the record open until the Staff 25 is heard from, and at that point Mr. Semmel could invoke O
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I his right to take depositions, and the papers would be 2
filed on whether or not the issue should be heard, etc.,
3 etc.
Meanwhile, the record is still open, thereby O
4 stalling a decision by this Board.
It is this 5
significance dif ference that has caused the Licensee to 6
file this motion for modification and correcting the 7
Board's memorandum.
8 That ends my remarks.
9 CHAIRMAN BLOCH Are there any other parties 10 wishes to speak in support of Mr. Gallo's motion?
11 (No response.)
12 CHAIRMAN BLOCH:
In that case, the Board has 13 considered Mr. Gallo's argument and does not feel that 14 there is need for further. argument.
We deny the 15 motion.
16 At the conference that was held at the Madison 17 Hotel, the Board granted this motion for extension of 18 time.
The grant of the motion f or extension of time 19 means that the late filed testimony will be a part of 20 the record of this case and there, therefore, need be no 21 reopening of the record in order for that testimony to 22 be a part of the record.
23 In addition, we indicated tha t f ollowing the
()
24 filing of that testimony, there would be an opportunity ~
25 for the conduct of depositions.
We intended that those O
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(])
1 depositions also could be a part of the record of this 2
case, that is the only matter that would be discussed at 3
that point, after the depositions were taken, as the 4
Board ruled at the Madison Hotel. -
5 We would point out that that notion was not 6
target of a motion for reconsideration, as that t.ime we 7
said that there could be a motion to the Board to reopen 8
the public hearing, as we would consider whether the 9
depositions were satisfactory for the determination of 10 the issues, or whether there were genuine issues of fact 11 that would require further public hearing for a 12 resolution.
13 The Board has ruled.
Is there any motion for 14 reconsideration or clarification of this ruling?
15 MR. GALLO:
A clarification, Judge Bloch.
16 I do not understand the distinction between 17 reopening the record and reopening the public hearing.
18 Perhaps you can clarify that for me.
If my question is l
19 not clear, I will elaborate on it.
20 CHAIRMAN BLOCH:
I understand that documents 1
21 can be in the record of this case, and depositions can 22 be accepted into the record for decision purposes.
A l
23 public hearing is an opportunity for oral testimony, and
()
24 an opportunity f or cross-examination.
It is not l
l 25 necessary tha t everything in the record be orally O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554-2345 l
528 1
presented as, for example, the direct testimony that is
(}
2 prefiled is part of the record but is not orally 3
presented.
O 4
MR. GALLO It is not part of the decisional 5
record, Judge Bloch.
6 CHAIRMAN BLOCH:
It is in the sense that we 7
are permitted to rely on it for our initial decision.
8 MR. GALLO:
I guess I do not agree.with that 9
judgment.
10 It seems to me that what the Board has ruled, 11 essentially, on the question of reopening the public 12 hearing, can easily be defeated by any one of the 13 parties asserting their right to cross-examination on 14 any affidsvit'or what-have-you that might be submitted.
15 I think it would be error to deny that.
16 I understand the distinction you make, I just 17 don't agree with it.
18 Thank you.
19 CHAIRMAN BLOCH:
I would clarify that there 20 would have to be a showing tha t there was genuine issue 21 or fact that required cross-examination, and that is 22 analogous to the summary disposition standard and would 23 require some showing for us to go back into hearing.
()
24 Are there other comments on Mr. Gallo's l
25 remarks requesting clarification?
l O
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1 MR. SEMMEL:
No, sir, but I have some 2
additional clarification.
3 CHAIRMAN BLOCH:
All right, Mr. Semmel.
4 MR. SEMMEL There are two things.
- First, 5
with respect to the depositions that you have mentioned, 6
I would submit that the parties, including Intervenors, 7
have the right to cross-examine after the testimony is 8
filed.
If the Board wants to substitute that with the 9
deposition process, that is one question, but my clients 10 are not going to be in a position to be able to pay to 11 take the deposition.
So that substituting a deposition, 12 the deposition is sort of a Board deposition, is not 13 going to be adequate opportunity to cross-examine for my
(
14 client.
15 CHAIRMAN BLOCH:
Would you clarify what you 16 mean by a Board deposition?
17 MR. SEMMEL:
I think that the Board is going 18 to pay for the transcript as part of the proceeding.
In 19 other words, I would think that it is appropriate, if 20 you are going to take this route, that after the 21 testimony is filed, the Board make available the 22 opportunity for cross-examination by having a 23 transcript.
After the transcript of the deposition is
()
24 filed, as I understand it, the test as to whether there 25 will be a public hearing is a snamary disposition test.
(:)
ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE S.W WASHINGTON, D.C. 20024 (202) 554 2345
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CHAIRMAN BLOCHs That is correct.
2 I take it that your clients actually would 3
prefer not to have to have further public hearing if O
4 there were some way they could afford to conduct 5
depositions rather than going back into a public hearing 6
in Michigan.
7 MR. SEMMEL:
My clients f eel that everything 8
should be in a public hearing, especially this issue, so 9
that the public can understand more easily, and so on.
10 CHAIRMAN BLOCH:
Did you not uhderstand what 11 we said at the Madison and just failed to file a motion 12 for reconsideration?
13 MR. SEMMEL:
No.
I stated that the only thing 14 I did not understand until now was that we might have to 15 pay for the depositions.
16 CHAIRMAN BLOCHs So you are willing to agree 17 to that procedure if you can find a way to do it 18 feasibly.
19 MR. SEMMEL:
Yes.
20 CHAIRMAN BLOCH:
You said that you would 21 prefer to have further public hearing on it.
22 MR. SEMMEL:
In effect what the Board is doing 23 is postponing this issue and having a second crack at O
24
==
tr at 90 ittoa-1 cat aear the so ra tne oo er 25 to do that.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20]24(202) 554-2345 I
531 1
So I am not disagreeing because I think the
)
2 Board doesn't have the power to do that, but I don't 3
vant to be in a position of denial of the opportunity O
4 for cross-examination on filed testimony, and the 5
opportunity for public hearing, if it turns out that l
6 there is s question of f act.
7 CHAIRHAN BLOCHs Mr. Goddard, could you 8
comment on the problem tha t Mr. Semmel has raised?
9 MR. GODDARD:
Yes, I could comment on that.
10 It is not unheard of for the Licensing Board 11 to direct that depositions be taken and, accordingly, 12 this would appear to solve Mr. Semmel's problems with 13 regard to the financial inability of his client to pay
()
14 for deptisitions, and still give him a chance to examine, 15 within the decisional record of this case, the Staff 16 witnesses and subject them to such cross-examination as 17 he sees fit, without regard to the need to reopen for 18 public evidentiary hearing, which would in all 19 probability take much longer and postpone the ultimate 20 decision in the case.
21 Did I answer your question fully?
22 CHAIRMAN BLOCHa I believe you have.
23 Mr. Gallo, do you agree with the Staff's
(])
24 comment tha t if we direct that depositions be taken that 25 the cost of the transcript will be paid for by the O
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government?
{}
2 MR. GALLO Yes, I agree with th a t.
3 CHAIRMAN BLOCHs Do you have objection to O
4 doing it that way, other than your other objection which 5
is that you would rather not see it in the decisional 6
record at all?
7 MR. GALLO:
I am not prepared to comment on 8
that.
I have no objection to the government paying for 9
the depositions if it is appropriate to take them.
At 10 this point, I am not prepared to comment that it is 11 appropriate to take them.
12 CHAIRMAN BLOCH:
Assuming that the Intervenors 13 file a request in writing for the Board to order these
)
14 depositions of Staff witnesses be taken, and assuming l
l 15 that the Staff does not object, then the Board intends 16 to order that the depositions be taken, which should 17 resolve the financial problems that the Intervenors 18 have.
It should resolve the need that this board has to f
19 reach an expeditious determination of the particular 20 issue based on a full record.
21 Mr. Semmel, the last issue we have on our 22 agenda for today is your motion for continuance.
23 MR. GALLO:
Judge Bloch.
(])
24 CHAIRMAN BLOCH:
Mr. Gallo.
25 MR. GALLO:
I just had an after-thought.
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You recall our last discussion about the
)
2 deposition that I wanted to take with respect to perhaps 3
the same witnesses that we are talking about here.
It O
4 may be that we will want to depose the Staff witnesses 5
ourselves.
I just don't want to sacrifice the right to 6
assert that right based on the present Board 's ruling.
7 I just want to reserve that right.
8 CHAIRMAN BLOCH4 I understand.
In the 9
interest of reciprocity, we also would be willing to 10 order those depositions on the same ground for the 11 Applicant as we have said we would be willing to order 12 them for the Intervenors, which is to make them a Board 13 deposition.
14 MR. GALLO:
Thank you.
15 CHAIRMAN BLOCHa That is also without ruling 16 on the merits of having them deposed prior to the time 17 that they make the filing that they have promised to 18 make in this case.
to Mr. Semmel, your motion f or continuance.
20 MR. SEMMEL:
I would like to first state two l
21 things.
One is that we would still like the Board to 22 order the Staff to provide in writing an explanation of 23 what I perceive as an inconsistency between their
()
24 statement that they are prepared for hearing and their 25 need for more information at least on the issue of pool O
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boiling.
(}
2 CHAIRMAN BLOCH:
Could we consider that to be 3
out of order at this time.
It is not a motion pending O
4 before us.
You have filed a motion for a continuance.
5 HR. SEMMEL:
It is relevant to the motion for 6
a continuance because the Staff's position is obviously 7
crucial on this question.
8 The second thing I would say is that we would 9
like to have a continuance on all issues, but if the 10 Board is going to deny tha t, we would particularly like 11 you to consider a portion of that request, which would 12 be to put over this issue relating to the integrity of 13 the pool and the concrete, and so on, that we have been
(
until the Staff has received the 14 discussing today,.
15 information that it has requested and the parties have 16 an opportunity to examine it.
17 Basically, we have a situation now, which we 18 have already discussed.
The staff says that we are 19 going to go to hearing saying, they haven't met their 20 burden of proof.
The result of this is that it simply l.
21 gives the Licensee two cracks to meet the burden of 22 proof.
This plant is not going to be closed because the 23 Licensee, before this hearing, did not get together this
()
24 information.
25 If the Staff and the Intervenors prevail on C)
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this issue that the Licensee hasn't met its burden of
{}
2 showing that the pool is safe, we undoubtedly are going 3
to have a motion to either reopen the record or another V
4 application in which they are going to try to put 5
forward that evidence.
6 On the other hand, if the Licensee prevails on 7
the issue, without giving this additional information, 8
it is probably going to be the end of it because the 9
Staff is never going to get this information, or it will to have to have a completely separate proceeding which will 11 be a health and safety proceeding.
12 The basic point is this, the Sta f f says, we 13 don't have enough information to decide this very 14 crucial issue as to the in.tegrity of the pool.
The 15 Staff seems hell-bent to go ahead on June 7th.
There is 16 no magical date called June 7th, except for the fact 17 that it was once set as what seemed to be a reasonable 18 hearing date, but problems have surfaced since then.
19 The only disadvantage tha t the Licensee has 20 ever shown or ever claimed with respect to delay is that 21 in the event that they had to discharge the full core, 22 they couldn 't do so and would have to shut the plant.
23 The only harm or disadvantage by delay would be that the
()
24 period of the shutdown would be extended by the period 25 of delay.
That is to say, in this case, the delay would O
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1 probably be three months because of the conflicting
(}
2 schedules of the members of the Board, although it does 3
not necessarily have to be three months, particularly if 4
the Board proceeds piecemeal.
5 We feel that we are going to have a de facto 6
bifurcated hearing because of the seismic issue, and we 7
might as well have that on this issue and have all the 8
information before the Board.
There just doesn't seem 9
to be any comgelling reason why this hearing has to to star.t now until all these matters have been resolved.
11 CHAIRMAN BLOCH:
Does anyone else have a 12 comment on Mr. Semmel's motion f or continuance?
13 HR. GODDARD:
I feel that I must respond to 14 the characterization of the Staff's position.
15 CHAIRMAN BLOCH:
Would you repeat that, Mr.
16 Goddard.
17 MR. GODDARD:
I said, I feel that I must 18 respond to Mr. Semmel's characterization of the staf f's 19 position which he relies upon in his request for a l
20 continuance.
l 21 CHAIRMAN BLOCHs If it is relevant and germane 22 to the motion for continuance, please respond.
But if 23 it is not, I don't think that it is a matter of the l ()
24 honor and integrity of the NRC at stake.
25 MR. G3DDARD:
It is not a question of the
()
l l
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1 honor or integrity of the NRC, Judge Bloch.
It is a
[}
2 question of whether or not the Staff is ready to 3
proceed.
Hr. Semmel repeated himself in asking that the O
4 staff provide his with information in writing.
5 The Staff, for Mr. Semmel's information, does 6
not take a position in every case that the Application 7
should be granted because it is safe or should not be 3
dianted because it is unsafe.
The position taken by the 9
Staff is that an application should not be granted 10 because the Staff does not have before it the 11 informa tion f rom which it may conclude that the pool is 12 structurally adequate.
I don't know how much clearer I 13 can make this.
()
14 It should not b'e ralled upon by any party as a 15 basis for granting a continuance which clearly the staff 16 has not requested, and which it would in no way be 17 reluctant to request if it felt it were required in 18 order to present the Staff position adequate in an 19 evidentiary hearing.
20 Thank you, the Staff has no further response, 21 and we oppose the motion for continuance.
22 CHAIBMAN BLOCHa Mr. Gallo.
23 MR. O'NEILL:
May I respond, Judge Bloch.
l
(])
24 CHAIRMAN BLOCH:
I am sorry, I did not knov 25 that Mr. O'Neill was still with us.
I thought you told l
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us you were leaving.
[}
2 HR. O 'N EILL:
I just have the phone on the 3
table here.
I really do have to get back to my work, it C:)
4 is just that I would like to very strongly support the 5
motion.
I think all parties are having trouble reaching 6
this hearing date on time.
It seems odd to me that we 7
would go very slowly for three years, and then at the 8
last minute, the most important minute, speed up to the 9
extent tha t the people can't prepare adequate 10 testimony.
11 I very strongly say that I think the hearing 12 should be postponed until that testimony can be 13 adequately presented.
I just emphasize that it seems
.Q v
14 that all the parties are having a great deal of 15 difficulty presenting all this testimony, even the 16 Licensee that they will be required to submit in 17 response to this last request by Staff.
It seems as 18 though, if his client would allow him, Mr. Gallo would 19 ask for a continuance.
But since it is not among the 20 Licensee's priorities, he is not allowed to do that.
21 Finally, I don't think prejudice accrues to 22 the Licensee because the hearing would be over and the 23 judgment rendered by the time there would be refueling.
()
24 I have to go.
I would have just one request 25 and that would be that if someone could call me with the O
ALDERSON REPORTING COMPANY. INC.
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order that comes out of this.
(}
2 CHAIRMAN BLOCHs All right.
3 MR. O'NEILLs Thank you very much.
O 4
CHAIRMAN BLOCHs You are very welcome.
5 Mr. Gallo, your comments on the motion for 6
continuance.
7 MR. GALLO:
We oppose the motion.
We filed a 8
written response.
We indicated in that response that 9
Semmel had not shown good cause, and we stand on that 10 argument.
The prejudice to the Licensee from the grant 11 of the motion, I will stand on the af fidavit filed by 12 Mr. Vande Walle during the course of the Staff motion 13 for a continuance, which was ruled on on May 6, which 14 af fidavit indicated the prejudice that would accrue as a 15 result of the Board not being able to reconvene until 16 the end of September.
17 The limited request for a deferral on the 18 concrete issue, the pool boiling issue, I oppose that as 19 well.
The Staff says that it is ready to go forward.
20 We are presently prepared to go forward.
T!aere is no I
21 reason to alter that.
22 I am afraid tha t I have to share some of Mr.
i 23 Semmel's argument with respect to the inconsistent
()
24 position and this need for the information, but that is 25 another issue and I am not going to resurrect that.
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Those are all the comments I have.
{}
2 CHAIRMAN BLOCH It is customary to allow a 3
brief rebuttal from Mr. Semmel.
O 4
MR. SEMMELa I have nothing further.
5 CHAIRMAN BLOCH:
The Board is prepared to 6
rule.
7 The ground for a continuance must consist of 8
specific prejudice which causes the party to have sore 9
reason to have a continuance.
Such prejudice could 10 arise, for example, if the Applicant files new testimony 11 or files rebuttal testimony which is sufficiently 12 complex that it is not possible for the Intervenors to 13 analyze that testimony adequately and respond in time.
14 in fact, it is even possible that the Staf f might clain 15 specific prejudice of that kind as a result of late 16 rebuttal testimony.
However, no specific prejudice 17 requiring a continuance has at this time been shown.
18 Therefore, the motion of a continuance must be denied.
19 We believe that given the fact that we appear 20 to be on schedule for the completion of most of the 1
21 issues at the scheduled hearing, it is therefore also l
22 necessary for us to deny the motion that Mr. O'Neill l
l 23 made for an extension of time.
(])
24 We discussed at an earlier time in this 25 telephone conversation our reasons for thinking that a ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
541
(])
1 further extension of time for Mr. O'Neill would be 2
inappropriate, unless a continuance of other issues was 3
granted by us.
We have now denied a continuance at this 4
time and, therefore, we feel that we must also deny Mr.
5 0'Neill's motion f or a con tinuance.
6 Are there any motions for reconsideration or 7
clarification of this decision?
8 MR. GALLO:
I have one, Judge Bloch.
9 The O'Neill motion you are referring to, I 10 assume, is a time extension in which to file papers on 11 what he characterizes as the lack of Licensee management 12 competence.
Is my understanding correct?
13 CHAIRMAN BLOCH4 Tha t is correct, and we made 14 it clear that while he is not granted an extension of 15 f,i m e, he can file the papers in an attempt to persuade 16 us to take the issue as a sue sponte issue.
17 Is there any other motion for reconsideration 18 or clarification?
19 MR. SEMMEL:
Judge Bloch, I have four quick 20 points of clarification on other matters that I would 21 li ke to raise quickly with the Board and the other 22 parties.
23 CHAIRMAN BLOCH:
Yes.
()
24 Incidentally, I would like to disclose, f or 25 the record, after Mr. Paris discussed the issues for our ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
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({}
1 last ruling on the record with the Board Chairman, he 2
left the meeting and he is not now in attendance.
Judge 3
Shon is still with me.
O 4
MR. SEMMELs With respect to the site " visits 5
that counsel for the NRC staff is going to make on June 6
4th, or sometime after June 3rd and before the hearing 7
starts, I will not be able to make that, but we have 8
another 1svyer in Michigan who has just agreed to assist 9
us on this case, and who will be filing a notice of to appearance, and I would like for him to be able to 11 attend that site visit.
12 CHAIRMAN BLOCH:
Mr. Goddard, there is no 13 problem with that, is there?
14 MR. GODDARD:
At this point, Judge Bloch, 15 there is no arranged site visit.
I was told by Mr.
16 Gallo yesterday to check this with a Mr. Loomis, is that 17 correct, Joe?
18 MR. GALLO:
Yes.
19 MR. GODDARDs He works at Big Rock Point, and 20 he was present at our meeting with Intervenors 21 yesterday.
Mr. Loomis said that he did not have time to 22 take care of it, and suggested that I arrange a visit 23 for myself and Mr. Bachmann through the NRC's resident
()
24 inspector a t Big Rock Point.
25 I think that any site visits for persons other O
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than NRC personnel, if not directed by this Licensing
{}
2 Board, would have to be arranged through the facility 3
itself, through the power company or through their O
4 counsel.
I do not feel that I have any authority to 5
authorize anyone on behalf of the Intervenors to visit 6
that facility.
I will attempt to obtain to obtain a 7
visit for Mr. Bachmann and myself initially through the 8
NRC senior residen t int,pector.
9 CHAIRMAN BLOCHs Mr. Gallo, is it really 10 necessary for us to issue an order?
11 HR. GALLO:
No.
I do not, however, want to be 12 saddled with tha sdainistrative responsibility of 13 scheduling all these visits.
()
~
14 CHAIRMAN BLOCH4 But would it be easier for 15 you if we issued an order?
If the Staff requests a site 17 visit, and there is no operating problem or other 18 reasons why they shouldn't be allowed in, and I don't 19 anticipate any, we have no objection to Mr. Semmel's 20 colleague accompanying them.
I j2st do not want to have 21 to be saddled with the responsibility of coordinating 22 all of this.
23 I think tha t perhaps Staff counsel could
()
24 handle it through his project manager, who in turn could 25 contact the normal administrative people at Consumers.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 I will advise them of what I am just telling you.
- Then, 2
I as sure they will be told that it is all right.
Staff 3
could then advise Mr. Semmel and Mr. Semmel could then O
4 advise his person of the time and place, and that is the 5
end of it.
6 CHAIRMAN BLOCH:
The Bosrd expects that there 7
should be no difficulty in this matter, and therefore 8
finds that it is not necessary to issve an order.
9 Mr. Semmel, do you have f urther matters?
10 MR. SEMMELs Yes, I have a second one 11 regarding the Board order regarding the transcript of 12 the May 25th informal conference in which the Board 13 ordered that a transcript or a recording be made.
14 It is my understanding that the reporter that 15 Mr. Gallo sent there was present and took the 16 transcript, but in the conversation we had while the 17 Board deliberated, there was some unclarity as to who 18 was going to either type the transcript or provide us 19 with the tape.
20 Originally I thought, from our conversations 21 the other day, that it was the Staff's responsibility.
22 But the Board order seems to construe that Mr. Gallo had 23 offered to take care of that.
I would like to clarify
(')
24 it, so I am sure that I will get one shortly.
25 CHAIRMAN BLOCH:
Mr. Gallo, I thought you had O
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graciously offered to provide a t ra nsc ript to Mr.
(}
2 Semmel.
Is that correct?
3 MR. GALLO4 I have not seen the Board order he O
4 referred to, but I had offered to provide a reporter, 5
which I did.
The Reporter, of course, sells copies of 6
the transcripts.
7 It was not an employee of Isham, Lincoln E 8
Baale who reported the hearing.
At the time I made the 9
offer of providing the reporter, I had not intended that 10 I would provide copies of the transcript for each and 11 every person.
12 CHAIRMAN BLOCHs We have a problem because we 13 were not on the record, but my recollection was that you 14 were extremely generous and that you assured Mr. Semmel 15 that you would actually give him a copy of the 16 transcript, which everyone at that time interpreted to 17 sean that you would pay for it and not bill him for it.
18 MR. GALL 0s I will not stand on ceremony on 19 that.
If that is the Boa rd 's recollection, I will 20 certainly provide a copy of the transcript.
I 21 CHAIRMAN BLOCHa We are not trying to bully 22 you into that because it probably would have been beyond 23 our authority f or us to order you to do it.
It is my j
()
24 recollection that that is what you offered.
25 MR. GALLO:
I will try to not be bullied in O
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the proceeding, Judge Bloch.
2 Under the circumstances, we will certainly 3
provide it to M r.
Semmel.
I expect that the other O
4 parties will purchase a copy of the transcript.
5 Is it my understanding that the Board wants a 6
copy, or are you willing to wait unless the parties 7
believe that the Board should have it.
8 CHAIRMAN BLOCH:
We only need if it is 9
admitted in evidence.
11 MR. GODDARD:
This is Mr. Goddard for the 12 staff, to clarify Mr. Gallo's comment.
The Staff does l
13 not want a copy of this transcript.
14 CHAIRMAN BLOCH
- Mr. Semmel.
1 15 MR. SEMMEL:
Two more quick ones.
16 The informal agreement, which is a draft 17 informal scheduling agreement, Mr. Gallo was going to 18 prepare a draft and distribute it.
I haven't gotten it 19 yet.
20 HR. GALLO:
That is because it has not been 21 vritten.
22 MR. SEMMEL:
All right, but that is due by 23 June 3rd, is that right?
O 24 MR. GALLO:
I thought June 1st.
25 MR. SEMMEL:
Maybe it is June 1st, and that is O
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547 l
1 why I as raising it, because I am leaving town, I was 2
supposed to take the 12:00 o' clock train, and I won't be 3
back until Tuesday morning.
I don 't anticipate any O
4 problem, but if I don't see it until Tuesday morning, 5
any change that has to be made, we may not be able to 6
get it in until the following day.
7 CHAIRMAN BLOCH:
What is the document that we 8
are talking about?
9 MR. SEMMEL:
This is an informal agreement on 10 scheduling.
It is an agreement on the schedule for the 11 hearing.
12 CHAIRMAN BLOCH4 It is believed by the parties 13 that they have an agreement.
It is a last minute review
()
14 that you are going to undertake, is that correct?
15 MR. SEMMEL:
Of the written document, yes.
We 16 hs ve ag raad.
17 CHAIRMAN BLOCH:
Unless the parties have an 18 objection, the Board has no problem with allowing Mr.
19 Semmel a fair opportunity to review that on his return.
20 Do any of the parties have objection to that?
l
(
21 MR. GODDARD:
This is Mr. Goddard for the 22 staff.
We have no objection, but we would point out 23 that to the best of our knowledge Mr. O'Neill has not
()
24 yet been exposed to that agreement nor, of course, 25 concurred in it.
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CHAIRMAN BLOCH:
Is that true, M r. Semmel.
2 MR. SEMMEL I will undertake to call him nov 3
and give him the schedule.
()
4 CHAIRMAN BLOCHa I apprecia te that.
5 MR. SEMMEL:
If there is any problem, I will 6
call Mr. Gallo and Mr. Goddard.
7 CHAIRMAN BLOCHa Mr. Semmel, your fourth and 8
last point.
9 MR. GALLO4 Mr. Chairman, you have just ruled 10 or decided.
Under the circumstance, I will undertake 11 the obligation to file the proper motion with the 12 Licensing Board to accept the schedule.
If Mr. Semmel 13 needs the time, as he indicates, then I will probably be
()
14 at least one day late.
15 MR. SEMMEL:
It is just one day, by the 2nd.
16 On the 1st, I will look a t it, and I don't anticipate 17 any problem.
18 MR. GALLO4 Implicit in the Board's ruling is a
19 that my motion on the 2nd will not be out of time, I l
20 assume, Mr. Chairman.
21 CHAIRMAN BLOCH:
That is correct.
The motion 22 for extension is granted.
In fact, the procedure that 23 the parties have voluntarily adopted is far more
(])
24 expeditious than the one Board anticipated because you 25 have reached an agreement before we received the l ()
(
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1 schedule.
2 MR. SEMMEL:
That is correct.
3 MR. GODDARD:
If there are no changes from the O
4 agreed upon schedule, the Staff waives signature on that 5
motion.
6 CHAIRMAN BLOCH:
Thank you, Mr. Goddard.
7 Mr. Semmel, your last point.
8 MR. SEMMELa Yes, it is on the question of 9
rebuttal testimony.
10 I would like to get a clarification as to 11 whether rebuttal testimony has to be in writing or can 12 be given by witnesses orally.
13 CHAIRMAN BLOCHa My understanding, subject to
(
14 correction by Mr. Gallo, is that rebuttal testimony is 15 not subject to the rule that it must be prefiled and 16 that it can be oral.
I guess the only difficulty is 17 that it could conceivably cause grounds for a motion for 18 continuance.
19 MR. SEMMEL:
I just wanted to clarify that for 20 myself.
Thank you very much.
21 CHAIRMAN BLOCH:
Mr. Gallo, am I correct in 22 th a t?
23 MR. GALLO:
That is my understanding, Judge
(])
24 Bloch.
25 CHAIRMAN BLOCH:
Are there any further matters O
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that must be taken care of at this time?
{}
2 MR. GODDARD:
The Staff has one, Judge Bloch.
3 It is nothing that the Board must rule on at this time.
O 4
I wish to apprise the parties, so no one will claim 5
surprise at a later time or possibly involve us in more 6
lengthy disc'ussions than required here.
7 I have before me the prefiled written 8
testimony of Intervenors.
Having reviewed their 9
testimony, it is the Staff 's position that the Staff 10 will oppose the admission of the testimony of Christa 11 Maria, Shirley John, and Joanne Beer as not constituting 12 expert testimony for the purposes of this proceeding.
13 Their qualifications are not filed herein, and
(
14 it is the belief of the Staff that if they were to have 15 filed their purported qualifica tions, they would not 16 meet the test for expert testimony in this proceeding on 17 the contentions to which they purport to speak.
18 CHAIRMAN BLOCHs We will not rule on the 19 Staff's action at this time.
The statement you have 20 made is purely for the purpose of notifying the 21 parties.
22 Do we have any other matters that must be 23 brought up at this time?
()
24 (No response.)
25 CHAIRMAN BLOCHs There being none, we wish to O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE S.W., WASHINGTON. D.C. 20024 (202) 554-2345
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i th nh the. rtie ror their co oer tive rticio tion.
j j
2 This he ring is adjourned.
1 3
(Whereupon, t 12:35 p.
., the telephone 4
4 conference was djourned.)
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l' ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
NUCLEAR REGUIATORY COMMISSION This is to certify that the attached proceedings before the ATOMIC SAFETY AND LICENSING BOARD in the matter of: Big Pock Point Nuclear Power Plant Unit No. 1 Date of Proceeding:
May 27, 1982 Docket !! umber:
50-155-OLA Place of Proceeding:
Washington, D. C.
were held as herein appears, and that this is the original transcript thereof for the file of the Commission.,
Patricia A. Minson Official Reporter (Typed)
Y h
W Official Reporter (Signature) i l
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