ML20057C085
| ML20057C085 | |
| Person / Time | |
|---|---|
| Site: | Rancho Seco |
| Issue date: | 09/22/1993 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#493-14356 DCOM, NUDOCS 9309270050 | |
| Download: ML20057C085 (200) | |
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OFFICIAL TRANSCRIPT OF PROCEEDINGS 4
4 Agency:
Nuclear Regulatory Commission Sacramento Municipal Utility.
Title.
District License-(Rancho Seco Nuclear Generating Stat. ton Facility Operation License No.
DRP-54)
Docket No.
so-312-DcOn O
(
LOCATION:
Bethesda, Maryland DATE:
Uednesday, September 22, 1993 PAGES:
387 - 579 P
c ANN RILEY & ASSOCIATES, LTD.
i 1612 K St., N.W.. Suite 300 9309270050 930922 PDR ADOCK 05000312 Washington, D.C. 20006 T
(202) 293-3950 ppy L.
387 1
NUCLEAR REGULATORY COMMISSION 2
ATOMIC SAFETY AND LICENSING BOARD 3
4
-X 5
In the Matter of:
6 SACRAMENTO MUNICIPAL UTILITY 7
DISTRICT LICENSE 8
Docket No. 50-312-DCOM 9
(RANCHO SECO NUCLEAR 10 GENERATING STATION FACILITY 11 OPERATION LICENSE No. DRP-54) 12
-X 13 y
14 5th Floor Hearing Room 15 4350 East-West Highway 16 Bethesda, MD 17 Wednesday, September 22, 1993 18 19 20 The' hearing in the above-entitled matter comme.,ced 21 at 9:00 a.m.,
pursuant to notice.
22 23 BEFORE:
CHARLES BECHHOEFER, Administrative Judge 24 RICHARD F. COLE, Administrative Judge 25 THOMAS D. MURPHY, Administrative Judge.
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APPEARANCES:
2 On Behalf of the Licensee-(SMUD):
3 THOMAS A. BAXTER, ESQ.
4 DAVID R.
LEWIS, ESQ.
5 Shaw, Pittman, Potts & Trowbridge 6
2300 N Street, NW 7
Washington, DC 20037 8
9 On Behalf of the-NRC:
10 LISA CLARK, ESQ.
11 EDWIN REIS, ESQ.
12 CHARLES BARTH, ESQ.
13 14 On Behalf of the Environmental Resources 35 Conservation Organization:
16 JAMES McGRANERY, JR.,
ESQ.
17 Dow, Lohnes & Albertson 18 1255 23rd Street, NW 19 Suite 500 20 Washington, DC 20037 21 22 23 24 25 O
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PROCEEDINGS 2
[9:00 a.m.]
3 JUDGE BECHHOEFER:
Okay.
Back on the record.
4 Good morning, ladies and gentlemen.
Resuming our 5
prehearing conference to discuss, among other things, the 6
contentions submitted by the intervenor.
I think because we 7
have a different reporter that at least the parties should 8
reidentify themselves for the record.
9 Mr. Barth or Ms. Clark?
10 MS. CLARK:
On behalf of the NRC staff, I'm Lisa 11 Clark.
Sitting to my right is Charles Barth and sitting to 12 my left is Edwin Reis.
13 MR. BAXTER:
Appearing on behalf of the Licensee 14 Sacramento Municipal Utility District, I'm Thomas A. Baxter, 15 to my right is David R. Lewis, and we're with the firm Shaw, 16 Pittman, Potts & Trowbridge, 17 MR. McGRANERY:
On behalf of the Environmental and 18 Resources Conservation Organization, James P. McGranery, Jr.
19 JUDGE BECHHOEFER:
Okay.
Thank you.
20 We were in the middle of the -- we had covered the 21 first of the bases submitted on behalf of ECO in the LOOP, 22 L-O-O-P, contention, and that's " loss of off-site power."
I 23 guess we should proceed from there, starting with the --
24 unless there are preliminary matters that anyone wishes to 25 raise, I will inquire, let's start with the second bases.
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)
1 Mr. McGranery, it's yours.
2 MR. McGRANERY:
I believe that it's relatively 3
self-explanatory.
The bases is that they are decreasing 4
maintenance, they are decreasing staffing.
They are not 5
maintaining the facility or its components in the same 6
manner as one would in operating a reactor.
Since the.95 7
factor is appropriate to a facility that is being fully 8
maintained to cope with emergencies and this is not such a 9
facility, a lower reliability factor would be appropriate.
10 CHAIRPERSON BECHHOEFER:
What about the timeliness 11 of that?
That's based on a fairly early document.
12 MR. McGRANERY:
That's based on a document that is 13 dated April 15, 1992.
14 CHAIRPERSON BECHHOEFER:
Right.
So should not 15 that have been submitted earlier, that particular claim?
16 MR. McGRANERY:
If you will bear with me just one 17 moment.
That one could have been submitted earlier if it 18 reached the Public Document Room in timely fashion; I cannot 19 speak to that.
My amendment and supplement was dated June 20 29.
I can't say for sure whether this document was in the 21 Public Document Room at that time; but if so, it would ha've 22 been a relatively recent arrival.
23 MR. REIS:
Recent?
Can you explain that, 24 Mr. McGranery?
Recent to your April 1st, 1993, or recent to 25 what?
What is recent to what?
What are we talking about?
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MR. McGRANERY:
That is, since the document itself 2
is dated in mid-April of 1992 and the supplement'was put in 3
June 29, the process of it coming from the applicant to the 4
staff to the PDR means that if it had made it to the PDR by 5
June 29 it would have made it there relatively recently.
6 MR. REIS:
Which year are we talking about?
7 MR. McGRANERY:
Ninety-two.
8 MR. REIS:
Ninety-two.
I see.
Okay, thank you.
9 MR. LEWIS:
Should I proceed, your Honor?
10 JUDGE MURPHY:
Can I ask a question?
11 Does this basis go just to the LOOP contention?
12 Is that what you're basically saying, that the'.95 13 reliability factors required of the diesel generators in 14 order to maintain a coping period?
15 MR. McGRANERY:
Yes.
Or to put it differently, it 16 is a coping measure in the event of LOOP.
17 JUDGE BECHHOEFER:
Ms. Clark, does staff have any 18 comments?
19 MR. LEWIS:
I would like to --
20 JUDGE BECHHOEFER:
Oh, I'm sorry.
21 MR. LEWIS:
There are so many deficiencies with 22 this short basis I almost don't know where to start.
First 23 of all, the.95 percent reliability factor doesn't even 24 apply to Rancho seco.
As I discussed yesterday, the station 25 blackout rule only applies to reactors that are licensed to ANN RILEY & ASSOCIATES, LTD.
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operate.
There is no requirement anywhere in the NRC 2
regulations or any other guidance document or any other 3
source whatsoever, that I'm aware of, that requires.us to 4
maintain any diesel generator reliability at this juncture 5
in our current shutdown permanently defueleu configuration, 6
and certainly ECO provides none.
7 JUDGE BECHHOEFER:
Pardon me, is there any NRC 8
regulation now which even provides for the.95.in any 9
circumstance?
I'm not aware of it.
That's why I'm asking.
10 MR. LEWIS:
The station blackout rule requires an 11 evaluation of coping duration for plants licensed to operate 12 and one of the elements that you consider when you look at 13 the coping duration is your reliability of on-site emergency 14 power.
If you go then to the reg guide that implements that 15 regulation, there is a.95 reliability factor calculation.
16 JUDGE BECHHOEFER:
Right.
Well, what I was trying 17 to bring out, that's a red guide, that's an implementing 18 guide.
I was on a case once where there was an argument 19 between.95 and.97 so I was aware that there was no 20 regulatory requirement of.95 as such.
I just wanted to 21 make sure that that's still the case.
22 MR. LEWIS:
I believe that's correct, yes, your 23 Honor.
24 The reference in ECO's contention to this 25 reference in the April 1992 response to staff questions also O
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provides no support for ECO's contention.
The April '92 2
response by the District at page DP-58, which is the page.
3 cited by ECO relates to a staff question asking the District 4
to discuss and quantify the radiation exposure which will 5
result from continued use of the two on-site diesel 6
generators located in the auxiliary building as peaking 7
units.
8 The response is that the District has evaluated' 9
the on-site diesel generators as peaking units and has 10 concluded that the overall cost to maintain the units and-11 the additional constraints imposed by air quality standards 12 makes using the diesels as peakers impractical.
13 It goes on to say that they won't be used as 14 peaking units.
Consequently, no radiation exposure will be 15 incurred by site personnel as a result of their operation.
16 That has nothing to do with a.95 percent reliability 17 factor.
It has nothing to do with maintenance of the diesel 18 generators.
It is totally irrelevant.
19 Finally, this basis, if I could even call it that, 20 is entirely out of time.
There's no relation here to LOOP 21 frequency; there is no relation to any of our documents that 22 we've provided regarding LOOP frequency; and there is no 23 showing on the timeliness factors.
24 JUDGE BECHHOEFER:
Okay.
25 Ms. Clark?
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MS. CLARK:
Yes.
On this basis ECO has given no 2
explanation of the relevance of this reliability factor.
3 The only thing we can do is attempt to speculate what it 4
could possibly have to do with.
As counsel for the licensee 5
has stated, it may have something to do with the blackout 6
rule, which we've already discussed, which has nothing to do 7
-- is not relevant to Rancho Seco and this would have 8
nothing to do with frequency in any event.
Obviously, this 9
fails to provide any meaningful basis for litigation here.
10 JUDGE BECHHOEFER:
Mr. McGranery?
11 MR. McGRANERY:
First, I would apologize to the 12 Board.
If there was a typographical error in the citation, 13 I would be happy to correct that.
Secondly, the claim that 14 LOOP or matters related to LOOP is totally irrelevant to 15 Rancho Seco cannot pass the " red face" test.
Neither the 16 applicant nor the staff would be addressing these issues if 17 they were not relevant.
It is also obvious that that loss 18 of off-site power is relevant to the safety of the facility 19 insofar as any prolonged loss would result in an uncovered 20 spent fuel pit and significantly increased radiological 21 exposures, at the very minimum.
~
22 JUDGE BECHHOEFER:
Well, I'm not sure.
Do you 9
23 have any basis for showing that with regard to a 24 decommissioned reactor, that is, not with regard to general 25 operating conditions?
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MR. McGRANERY:
I would refer the Board to the 2
transcript of yesterday's proceeding where counsel for the 3
licensee made representations that, indeed, the water did 4
provide a significant shielding function and that its 5
eventual evaporation would cause the loss of that shielding.
6 MS. CLARK:
Your Honor, if I may interject here?
7 I just want to point out that the issue we're dealing with 8
is not the potential consequences of a LOOP.
The only issue 9
that we have before us is the manner in which the frequency 10 of the LOOP was calculated.
The frequency of the LOOP is 11 not material.
The question of how --
12 JUDGE COLE:
I thought the frequency of the LOOP 13 was material.
14 MR. REIS:
Yes.
That's the only material.
O 15 MS. CLARK:
What I'm saying is the frequency of 16 the LOOP is not -- that issue is_not material to the --
17 JUDGE BECHHOEFER:
Maybe you mean it the other way 18 around.
19 MS. CLARK:
What I'm saying is that the only issue 20 that we have before us is the frequency of the LOOP, and the 21 frequency of the LOOP is not material to the --
22 MR. REIS:
Operation of the diesel generators.
23 MS. CLARK:
Excuse me.
What I mean to say is that 24 it's not a material issue in that it's_not going to have any 25 consequence -- effect on the consequences of a LOOP.
It's ANN RILEY & ASSOCIATES, LTD.
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true that we have to look at what the potential consequences 2
of a LOOP would be, but those consequences are not going to j
3 be affected'in any way by how often a LOOP occurs, as we've 4
shown.
l 5
JUDGE BECHHOEFER:
That probably -- I.mean, you
]
i 6
have a LOOP every day and you multiply your consequences, 1
7 there might be some.
8 MS. CLARK:
Well, that's possibly true.
But the' 9
fact is that it's really only a factor that we've used in 10 calculating the station blackout rule, and that's not 11 applicable to SMUD here.
j 12 MR. LEWIS:
Your Honor, may I address this another 13 way?
I 14 Counsel for ECO characterized our argument at the
{
O i
15 second go as LOOP being irrelevant to Rancho Seco, and he i
i 16 asserted that that would not pass the " red face test," to I
I l
17 use his own words.
We have never maintained that LOOP is a 18 irrelevant to Rancho Seco.
We've analyzed it in our DP.
l 19 The arguments we made a few minutes ago was.that I
20 the station blackout rule was inapplicable -
and that.is i
)
21 true -- and that this issue in Basis 2 was unrelated to the l
22 LOOP frequency issue which the Commission had allowed ECO to 23 address without a showing on lateness.
24 Now, those were our two points.
That's different 25 from LOOP being relevant, and it's fully addressed in our O
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decommissioning plan and our environmental report.
That I
2 analysis is not addressed in Basis 2.
3 Our analysis is it takes weeks for any adverse 4
consequence in the event of a LOOP and we can restore power, 5
off-site power, in eight hours.
There are six transmission 6
lines that come into the station from two access corridors l
7 and they are tied into two separate utilities.
We-can 8
restore power very_ easily.
9 We can also extend the amount of time we can 10 withstand loss of off-site power, simply by running a fire 11 hose into the spent fuel pool.
We have-our own on-site 12 pumper that's supplied -- that's powered by its own 13 independent little diesel that we can run up there and put a
-s 14 hose in the pool and maintain it below boiling, basically, 15 forever.
16 There is no reliance on emergency diesel 17 generators.
These are the TDI emergency diesel' generators l
l 18 that are used if you have plant fully operating.
We have 19 not placed any reliance on emergency diesel generators.
20 This Basis No.
2, aside from being beyond the 21 scope of the remanded issue and being untimely, doesn't 22 address our LOOP analysis, the District's LOOP analysis, in 23 the ER and DP.
24 JUDGE BECHHOEFER:
Let me ask one question, 25 perhaps.
I've skimmed through certainly the plan, but are O
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any of the emergency diesel generators going to be available 2
or in operation, or are they going to be taken down?
3 MR. LEWIS:
We're not maintaining emergency diesel 4
generators.
5 JUDGE BECHHOEFER: -Pardon?
6 MR. LEWIS:
We are not maintaining the emergency 7
diesel generators.
The fire pump, though, which has its own 8
little generator is being maintained.
l l
l 9
JUDGE BECHHOEFER:
Oh, okay.
l 10 Okay.
Mr. McGranery, back to you.
j 11 MR. McGRANERY:
In going over the materials, I l
12 don't recall any mention of the fire hose, except in 13 responses to what I have filed.
And I don't know if the r
14 fire hose, I don't know if we could make the fire hose pump O
15 a more reliable means of coping, or if we have any analysis 16 of what its reliability is or capacity.
17 MR. LEWIS:
I believe it's addressed in our 18 response to the contentions.
19 MR. McGRANERY:
Yes.
20 MR. LEWIS:
The fire hose is pointed out with a 1
21 specific reference in our contentions to where it's 22 mentioned.
The Decommissioning Plan at page 3-35 indicates 23 that a simple addition of water would extend the time to 24 implement corrective actions to restore spent fuel pooling.
25 And there is another submittal that was part of our -- that ANN RILEY & ASSOCIATES, LTD.
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is on the docket that specifically referred to the.
2 availability of the fire hose.
I apologize if I don't have j
3 it at my fingertips.
4 MR. REIS:
Ycar Honor, in looking at this, and.I'm 5
reading what the Commission said just last week, they said, l
t 6
"To the extent that ECO's amended contention may raise new i
7 issues that were not dependent on the newly provided l
8 analysis of the probability of LOOP, these new issues'are 9
subject to the late filed criteria in 2.714 (a) (1) to (5). "
10 And they point to where they said, essentially, the same 11 thing in Footnote 8 of CLR 93, 12 In the new contentions.which Mr. McGranery 13 prepared after that commission opinion or at the time of 14 that Commission opinion, certainly he had a long. opportunity 15 since then to take care of any defects -- actually, they 16 were prepared before this statement on reconsideration -- it-l l
17 was incumbent on Mr. McGranery to address 2.714 (a) (1) to 18 (a) (5) on any matter that doesn't deal with frequency of 19 LOOP.
20 Coping matters, in the Commission's own words, are 21 not frequency.
We have here a pleading that nowhere 22 mentions 2.714 (a) (1) through (5).
It is too late now.
The 23 Commission remanded one issue, and that's all this Board has 24 jurisdiction of, unless he has complied with 2.714 (a) 25 through (5) and that's only frequency.
O.
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Any matters relating to coping, such as the 2
diesels do, as Mr. McGranery.says, deal not with frequency 3
but with coping, in case yon lost off-site power are not a 4
matter that the Commission has directly remanded.
5 Now, I don't say that he couldn't raise an' issue 6
under 2.714 (a) (1) through (5), but the Commission has said 7
again and again that you hsve to specifically address those 8
criteria.
9 Mr. McGranery has practiced before this 10 Commission; he knows the regulations; and he should have 11 addressed, if he intended to raise any matter other than 12 frequency, the particular regulations that the Commission 13 said apply.
14 MR. McGRANERY:
I find that eminent counsel for 15 the NRC staff and I read the Commission's order slightly 16 differently; and that is, the language reads, " Issues that 17 were not dependent on the newly provided analysis of the~
l 18 probability of a loop."
l 19 I will refer, in particular, to the analysis 20 furnished to all of us here by Mr. Baxter's letter of April 21 6, 1993, transmitting a SMUD letter designated DAGM/NUC 93-22 079, April 1, 1993, which in turn transmits revised LOOP and 23 SFP decay heat load analysis, which address the probability 24 of LOOP intermingled with the coping perio'ds and other.
25 matters related to the risk of a LOOP or the risk resulting ANN RILEY & ASSOCIATES, LTD.
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from a LOOP.
2 So I believe that coping matters are, indeed, part 3
of the issues that are dependent on the-newly provided
)
4 analysis of the probability of a LOOP.
You cannot consider 1
5 the safety implications of LOOP independent of.its.
6 consequences and independent of its probability or 1
7 independent of coping, and SMUD's own filings recognize that I
i 8
fact.
9 Again, I will note that these documents were 10 furnished to us after the filing of these contentions or l
11 these bases for the contention.
i 12 MR. LEWIS:
Your Honor --
I a
13 JUDGE BECHHOEFER:
Even if we should ignore i
i 14 timeliness at this stage, which I'm not sure we can, but 15 even if we could, how do you respond to the materiality 16 arguments that have come from -- really from both of the 17 other parties?
18 MR. McGRANERY:
Well, I believe that that's a 19 matter that I will have to address in the context of SMUD's 20 motion for summary disposition of this issue and --
21 JUDGE BECHHOEFER:
Okay.
Well, we're here to rule 22 on contentions now so it may be too late when you address it 23 then.
24 MR. McGRANERY:
I would expect that the Board 25 would allow me to respond at the appropriate time to this i
O.
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i 1
motion for summary disposition.
2 JUDGE BECHHOEFER:
To the motion, yes; but the l
i 3
appropriate time to respond to the contention, well, is long l
4 past.
But the contention was submitted and now is the 5
appropriate time to respond to what the other parties'have l
i 6
said on the contention, because we're ruling on -- we're i
7 likely to rule on these contentions long before we rule on l
8 the summary disposition motion.
]
9 MR. McGRANERY:
That would be --
10 JUDGE BECHHOEFER:
I mean, there is considerable l
11 time including responses and replies.
We're not likely to' r
12 rule on that summary disposition motion for a while.
13 MR. McGRANERY:
You would rule on --
14 JUDGE BECHHOEFER:
We would rule on these,
{
'5 MR. McGRANERY:
You would rule on the contention l
i 16 before you had a complete record on the motion to dispose of
[
r 17 the contention?
1 18 JUDGE BECHHOEFER: 'Of course.
We're not ruling on 19 that contention; we're ruling on the others.
20 MR. McGRANERY:
Okay.
21 JUDGE BECHHOEFER:
I mean, we'll rule on the other 22 when all the papers are in and when we look at it, and then 23 we'll decide if it's in or out at that stage, but we're not 1
24 going to wait on these contentions for that.
25 MR. McGRANERY:
It is material because of the risk ANN RILEY & ASSOCIATES, LTD.
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1 of significantly increased radiation exposures as a 2
consequence of a LOOP and failure of the coping measures 3
that have been posited by the licensee.
4 MR. LEWIS:
Your Honor, Basis No. 2 has nothing to 5
do with coping duration; it has to do with reliability of 6
7 aren't being relied on.
The April 1, 1993, submittal that 8
Mr. McGranery just referred to, the one transmitted to him 9
on April 6, 1993, doesn't place any reliance on emergency 10 diesel generators.
This issue is totally irrelevant.
There 11 is no reliance placed on emergency diesel-generators and t
12 certainly Basis 2 is unrelated to our analyses, unrelated to i
13 our evaluations, unrelated to any regulatory requirement, i
i 14 unrelated to any credible accident scenario.
i 15 MS. CLARK:
And furthermore, I would like to point f
(
16 out that ECO has provided no basis for assuming.that there 17 is going to be any release of radiation because of a LOOP.
18 The fact we have, I think, somewhere in the range of 17 days i
19 to cope with a LOOP and there is no reason to believe that l
l 20 this is going to cause any release of radiation I. submit i
21 that even if a LOOP occurred every year, certainly more 22 frequently than once in 20 years, this is simply not a l
l 23 material issue.
24 MR. McGRANERY:
What we're talking about here is, 25.
first, it is true that in the filing just referred to by ANN RILEY & ASSOCIATES, LTD.
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SMUD's counsel they say the emergency diesel generators are 2
not required to ensure power availability to support SFP 3
cooling equipment in the event of a LOOP, but they are j
4 trying to get out of a requirement there that normally would 5
be imposed.
Secondly --
6 JUDGE BECHHOEFER:
Well, what do you mean 7
"normally would be imposed"?
If it's imposed for an 8
operating reactor it doesn't mean that it would normally be 9
imposed for a decommissioned reactor.
I mean, there is a 10 difference.
11 MR. McGRANERY:
Let me put it this way.
If there 12 were no possibility that the NRC staff might consider the j
i 13 existence and availability of the emergency diesel 14 generators in their safety evaluation of LOOP for this O
15 reactor at this time, the licensee would not have attempted 16 to address and avoid the issue.
And as to materiality, when 17 we're talking about release of radiation, we have two 18 different areas:
One is within the building which has a l
19 resultant hazard to the employees who have to enter that 20 area; and, secondly, there is release outside the building.
21 MR. LEWIS:
Your Honor, there is no technical
\\
l j
22 basis that there is going to be any off-site release.
Mr.
I 23 McGranery just made that up on the spot.
There is 24 absolutely nothing.
No fact or source or expert opinion 25 expressed in any filing that potential for an off-site O
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1 release.
l 2
JUDGE BECHHOEFER:
What about a potential for a 3
reler e that might harm workers.
4 MS. CLARK:
I don't believe Mr. McGranery has 5
established standing to represent the workers here.
6 MR. McGRANERY:
Excuse me.
May I request the 7
Chair to direct counsel for both the licensee and the staff 8
not to interrupt me in the future when I'm trying to make a 9
point?
10 The release here, I was about to say, need not be 11 outside the building in order to create a hazard.
And that j
12 was the point that I was about to make before I was 13 interrupted.
14 JUDGE BECHHOEFER:
Well, I had thought you had lO 15 mentioned harm to workers in your latest statement.
l 16 MR. McGRANERY:
I just did.
l i
17 JUDGE BECHHOEFER:
Do any members -- now, your 18 group was granted discretionary standing.
Is any_ member of l
19 the group a worker, a current worker?,
20 MR. McGRANERY:
A former worker.
i l
21 JUDGE BECHHOEFER:
No.
A current worker?
i 22 MR. McGRANERY:
No.
23 JUDGE BECHHOEFER:
A person who could represent -
24 25 MR. McGRANERY:
No.
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i I
I I
406 l
1 JUDGE BECHHOEFER:
There is at least one ruling i
j 2
I'm aware of that said if you don't have a worker among.your 3
group you can't have a contention that represents workers.
{
4 I don't know if that one is correct or not, but eventually 5
it may get subject to review but it hasn't-been.
A decision 6
hasn't come out yet, but the decision or. the contention did 7
come out; it wasn't appealed.
i 8
Okay.
Are we ready to go to number three now?
i 9
MR. McGRANERY:
I believe that that's self-l 10 explanatory.
)
11 JUDGE BECHHOEFER:
Okay.
Right.
Well, that 12 really was everybody through on two, but I guess proceed to 13 three.
i 14 MR. LEWIS:
If ECO-is standing on its pleadings, 15 we will too.
I 16 MS. CLARK:
The staff also has nothing further to i
l 17 add.
18 JUDGE BECHHOEFER:
Any questions on that or not?
19 Any questions?
(.o verbal response.)
20 N
21 JUDGE BECHHOEFER:
I don't have any.
22 Okay.
Let's go on to four.
23 MR. McGRANERY:
Again, there we are simply 24 pointing out that the SMUD analysis of LOOP frequency and.
25 its consequences has ignored a significant part of the ANN RILEY & ASSOCIATES, LTD.
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407 i
I spectrum of those consequences, focusing only on the cooling 2
of the spent fuel pool and ignoring the impact on other 3
critical systems such as the security systems.
i 4
JUDGE BECHHOEFER:
Now, is that one that under the 5
Commission's ruling should-have been filed earlier or was 6
late filed?
7 MR. McGRANERY:
I have reference once again to the 8
analysis furnished by DAGM/NUC 93-079, which was not 9
available even at the time when this contention, when this 10 basis was filed; it leaves these issues out.
i i
11 MR. LEWIS:
Your Honor, I need to address this 12 April 1, 1993, letter.
i l
13 MR. McGRANERY:
We've got a copy of it, but I 1
14 don't have it with me here.
l O
15 MR. LEWIS:
That is a revision of our current fuel i
i 16 expect safc*.y analysis.
That is not a revision of our i
17 decommissioning plan nor our ER.
Our analysis and our i
18 decommissioning plan and the ER is what is before this i
i f
19 Board.
That is what is going to govern.us when we get our j
i 20 decommissioning order approved.
j 21 Those are the analyses that ECO should have l
22 addressed.
And if ECO had some concern when our 23 decommissioning plan and environmental report were submitted 24 that there should have been a further analysis of security, 1
25 it should have raised that issue at that time, two years ago l
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408 1
or a year and a half ago.
There is no justification for 2
this late contention.
There is no basis for this late 3
contention.
There is no citation supporting it.
There are 4
no facts offered to support it.
It's totally without basis.
5 MS. CLARK:
All right.
Yes, the staff believes 6
that this basis is completely irrelevant to the LOOP 7
frequency.
ECO has provided no reason to think that the 8
impact on security systems has any relationship to the 9
frequency of the LOOP.
And, frankly, we can't even conceive 10 of any such relationship.
11 MR. McGRANERY:
It's a consequence of the LOOP and 12 it was -- and these issues were not addressed in the 13 evaluation of the LOOP furnished us by the licensee after 14 the filing of this contention or this basis for the 15 contention.
16 JUDGE BECHHOEFER:
Okay.
Anything further?
17 Otherwise, we'll go on to number five.
Going on to number 18 five, I just have one question.
Why doesn't NCFR 50.13 bar 19 us from even looking at that?
.I think I got my number j
l i
20 right.
21 MR. McGRANERY:
I need to see what you're 22 referring to.
23 Because 50.13 bars only attacks directed or 24 sabotage directed against the facility by an enemy of the 25 United States or the use or deployment of weapons' incident ANN RILEY & ASSOCIATES, LTD.
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l l
I 409 j
1 to U.S.
defense activities.
I would offer that sabotage is O
2-not confined to enemies of the U.S.
or U.S.
defense 3
activities.
4 Any individual, any common criminal, or band of 5
common criminals can commit sabotage.
And, in fact, the-6 NRC's regulations on security and their planning anticipates i
l 7
teams of attackers, not necessarily enemies of the U.S.
or 8
in the employ of a foreign government.
So 50.13 simply 9
doesn't reach all sabotage.
j 10 JUDGE BECHHOEFER:
Okay.
Do you have further 11 comments on your proposed contention before we go to the i
l 12 other party?
l 13 MR. McGRANERY:
Only to clarify, and-that is that 14 SMUD has relied on its six sets of power lines going through 15 two corridors, which would appear to give a significant-16 degree of redundancy.
However, as soon as you focus more on 17 the two corridors than the six power lines, you come to see 18 that taking out those lines requires only'two acts, not six, 19 and the vulnerability of --
20 JUDGE BECHHOEFER:
Well, doesn't that give some 21 degree of redundancy?
22 MR. McGRANERY:
I'm saying that the redundancy if 23 one is looking at someone who is trying to commit an act of 24 sabotage is really not so great when you consider that 25 overything is concentrated in these two corridors, and ANN RILEY & ASSOCIATES, LTD.
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i 410 I
without consideration of a planned attack on the SMUD lines, 2
then you cannot really consider what the frequency of LOOP 3
might be or the real possibility of being able to return 4
power within eight hours.
5 MR. REIS:
Now that we've heard Mr. McGranery 6
testify, we have no basis for his statements, and I ask that 7
they be ignored.
Definitely, there is no basis set forth in 8
the contention.
There is just a blanket statement, l
9 consisting of about 10 words.
We have statements made here i
10 in the hearing, in a prehearing conference where an attorney 11 is testifying as to matters, and it's extremely improper and l
12 I ask that they be ignored.
13 MR. McGRANERY:
I don't mean to be testifying; I 14 am elaborating on the contention.
And it is very hard to O
l 15 give a cite to a document where you're saying that the i
16 licensee has failed to address a subject.
You can attack a 17 particular document and give a citation when the claim is j
l 18 that the licensees's treatment of a topic is inadequate.
i I
l 19 You can then show the inadequacy.
But when the l
l 20 consideration of a relevant factor is totally absent, one 21 cannot give a citation.
l 22 MR. LEWIS:
Your Honor, to --
i 23 JUDGE BECHHOEFER:
Well, I would like to hear from 24 the other parties, but particularly on the effect of 50.13 25 because maybe that's the reason the matters weren't dealt
(
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411 L
1 with.
I don't know but I can hypothesize.
Doec 50.13 bar a 2
contention like this, given Mr. McGranery's explanation of l
3 it?
4 MR. LEWIS:
I don't believe 50.13 bars this i
5 contention.
I believe it is related to acts of war.
We 6
don't have to evaluate the effect of an attack on this 7
country.
There are requirements that licensees maintain 8
safeguards against sabotage and security, but those are 9
specific requirements.
10 MR. REIS:
Your Honor, there are.-- as counsel for i
11 the licensee said, there are specific requirements for 12 whatever is necessary, for safeguards; those aren't 13 mentioned here at all.
The contention has no basis.
50.13 i
14 talks about any acts of sabotage and bars any acts of 15 sabotage.
It says, " Enemy of the United States, whether a.
16 foreign government or otherwise."
17 I don't know what sabotage he's talking about.
He l
l 18 hasn't set forth a scenario.
I think 50.13 is relevant 19 here, and I think also that there is the additional problem f
l 20 of that he hasn't addressed the requirements for safeguards 21 in 50.73, he hasn't shown any basis for a contention.
22 JUDGE BECHHOEFER:
Well, all he is saying is that 23 there is no provision for dealing with sabotage now.
But 24 again, he hasn't referred to the particular section that 25 doesn't have that.
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412 1
MR. LEWIS:
Your Honor, the main deficiency with 2
this basis is that he hasn't explained why it's needed.
He 3
has made no showing of materiality.
He has provided no 4
facts or expert opinion that shows that there is a need or a l
5 requirement to evaluate the occasion of LOOP from sabotage.
6 The short answer is:
So what if we lost all six power 7
lines?
We have weeks to take corrective action, and that 8
may simply be running a fire hose into the spent fuel pool.
9 This is totally unsupported and an immaterial allegation.
10 JUDGE BECHHOEFER:
Anything further that.the staff 1
11 wants to add?
12 MR. REIS:
No, your Honor.
]
13 JUDGE BECHHOEFER:
Okay.
14 Mr. McGranery?
l'O l
15 MR. McGRANERY:
Two things:
First, it does relate 16
-- it is a factor that one must consider in considering j
17 frequency of LOOP and this is one way of pointing out the i
18 consideration being limited to high winds is inadequate.
19 Secondly, the security measures addressed by the 20 NRC regulation refer to on-site security.
When we're 21 talking about the occasion of LOOP from sabotage by other 22 than a foreign force, we're talking about an off-site event 23 where the on-site security personnel and systems are not 24 relevant, except insofar as those systems may be disabled by i
I 25 the occasion of LOOP which we have addressed previously.
s ANN RILEY & ASSOCIATES, LTD.
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i i
413 1
1 JUDGE BECHHOEFER:
Okay.
Any further response?
l l
2 MR. LEWIS:
No, your Honor.
3 MR. REIS:
No, your Honor.
l l
]
4 JUDGE BECHHOEFER:
Now, going on to six.
Pardon?-
5 5
JUDGE COLE:
That was six, wasn't it?
1 t
i
^
6 JUDGE BECHHOSFER:
No.
That was five, that was t
7 sabotage.
8 Six,-to me at least, does refer to the frequency, i
9 I may be wrong, but I read this as a frequency one.
And I 10 read the response as saying, "Well, you've misconstrued 11 something," misconstrued occurrence with damage.
12 My question.across the board is:
Is that not a 13 matter of the merits, rather than the admissibility of the 14 contention?
O 15 MR. McGRANERY:
I would certainly agree with you.
16 JUDGE BECHHOEFER:
So everybody who addresses that 17 one, I'd like to have that addressed.
18 MR. McGRANERY:
ECO would certainly concur.
19 JUDGE BECHHOEFER:
Do you have other statements on
-i i
20 that basis or not?
1 21 MR. McGRANERY:
Excuse me?
22 JUDGE BECHHOEFER:
Do you have anything else on 23 that basis or not?
-24 MR..McGRANERY:
As the Chair has recognized we i
25 have, in fact, recognized on the part of all concerned that ANN RILEY &. ASSOCIATES, LTD.
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i 414 1
this is an evidentiary matter and we would be prepared to 2
present the appropriate evidence.
3 JUDGE BECHHOEFER:
Well, from your standpoint do I
4 you think the fact that you haven't talked about -- you've I
5 only talked about the occasions when the wind speed would be 6
likely to be 75 miles an hour.
Do you think that the l
7 occasion when the factor of damage should be worked into 8
there, that the number of times when you get 75 miles an 9
hour winds that has resulted in some sort of damage, should 10 that factor be put in also?
Because that might well make j
11 the answer de minimis.
l 4
12 MR. McGRANERY:
I would have to defer to the i
13 experts on that.
I believe that the analysis worked out by I
14 SMUD's document was that you would have the occurrence of O
15 LOOP once every 18.2 years, but my memory is vague on that 16 point at this time.
i l
17 JUDGE COLE:
Mr. McGranery, what is the origin of 18 a 75 mile per hour wind reference?
Where did it come from?
19 Did you pick it out because it occurs less than once every 20 20 years or more than once every 20 years?
l 21 MR. McGRANERY:
It was in SMUD's presentation; it 22 was a factor chosen by SMUD.
23 JUDGE BECHHOEFER:
Okay.
ist r -- either Baxter 24 or Lewis.
25 MR. LEWIS:
Yes, sir.
It'is ECO's obligation as ANN RILEY & ASSOCIATES, LTD.
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4 415 1
the proponent of the contention to provide a basis for its j
O i
2 contention, to support that contention with evidence, with i
3 facts or expert opinions, and to demonstrate that an issue 4
is material, that it's resolution would affect the outcome i
~
5 of the proceeding;'this Basis No. 6 does none of the above.
r 6
The simple reference to the frequency of winds i
7 greater than 75 hours8.680556e-4 days <br />0.0208 hours <br />1.240079e-4 weeks <br />2.85375e-5 months <br /> by itself has no significance.
ECO 1
8 might as well have said, "Well, there's a more frequent 9
occurrence of winds greater than 5 miles an hour."
So what?
10 The issue of the frequency of winds above a j
11 certain velocity only has materiality if there is some' link 12-to the occasion of those winds and loss of off-site power.
13 To answer Judge Cole's question, Reg Guide 1.155,
-l 14 which is the Reg Guide that implements the station blackout l
l 15 rule, provides a formula for translating severe weather'into l
16 LOOP frequency, and it's one of the steps that is examined 17 when the licensee who is licensed to operate a plant applies 18 the station blackout rule and figures out a station blackout 19 duration.
20 The formula, and it's in the note to Table 6, l
21 indicates that the annual expectation of storms with wind l
l 22 velocities between 75 and 124 miles per hour is multiplied 23 by 0.012, to determine the frequency of LOOPS occasioned by 24 such storms.
25 The one in 18.2 annual expectation that Mr..
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I l
e i
416 l
1 McGranery referred to is our determination of how often i
2 winds greater than 75 miles an hour occurs.
If you then 3
multiply that frequency by the factor specified in the Reg 4
Guide, 0.012, you end up with about a once-in 1,500 year 5
frequency for LOOP.
6 JUDGE MURPHY:
Caused by wind.
7 MR. LEWIS:
Caused by winds greater than 75 miles 8
an hour.
9 In essence,-his reference to the frequency of 75 10 miles an hour is -- you know, casts no doubts whatsoever on 11 our statement that LOOP occurs less than once in 20 years.
12 There is no connection and it is his obligation to support, 13 to plead the facts, the expert opinion, the information 14 showing that this information is material.
He cannot just
,O 15 waive his hand.
I could make up any number of off-site 16 events.
Or you could talk about hail storms,.how often they 17 occur.
You can talk about sand storms'or traffic' accidents 18 near power lines.
19 JUDGE BECHHOEFER:
Well, isn't a fact that you 20 mentioned, though, isn't that a matter of the question I 21 asked before?
Isn't that a matter of defense, the merits?
l l
22 MR. LEWIS:
No.
Because it's his obligation in l
23 the first instance to provide sufficient information and t
24 evidence, and he has to provide evidence under the new l
25 pleading standards to show that there is a material issue.
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417 1
That is his threshold obligation.
And I'm saying a simple 2
reference to the frequency of 75 miles an hour winds does 3
not establish a material issue, because that one fact by 4
itself does not raise into question our statement about the 5
frequency of LOOP.
It's just an insufficient allegation.
6 I can say that, you know, traffic accidents in the 7
vicinity of power lines occur many times a year.
Does that, 8
then, cast doubt on our question about LOOP frequency?
And 9
the answer is, no, that's not a sufficient. allegation; 10 there's no connection made.
He has not supplied factual 11 basis or the expert opinion sufficient to establish-a 12 material issue, one whose resolution would affect the i
13 outcome of the proceeding.
i 14 In short, he could prove -- we could take this 15 statement, "A loop can be caused by 75 miles per hour wind 16 and say that is true."
And the question is:
So what?
The 17 proof of his allegation is 18 JUDGE BECHHOEFER:
Well, he has said it occurs 19 every whatever number of years it is.
20 MR. LEWIS:
Well, that's true to.
21 JUDGE BECHHOEFER:
Every 18 or'whatever it is.
22 MR. LEWIS:
But the question still again is,-in 23 short:
So what?
q 24 JUDGE BECHHOEFER:
That on its face then creates a 25 question, and the answer which -- I'm not sure you have to O
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l 418 1
plead your whole case.
I mean, you have to create a f
2 question.
l 3
MR. LEWIS:
You have to plead an allegation that i
4 if proved makes a difference, and he hasn't pleaded an j
i 5
allegation which if proved makes a difference.
1 6
JUDGE BECHHOEFER:
Well, I'm not sure.
That's why 7
I'm asking the questions.
[
8 MR. LEWIS:
Well, it's our position that he has 9
not, and I think our position is consistent with the NRC 10 regulations.
It is his burden to establish materiality.
It
(
11 is his burden to plead expert opinion or. facts supporting l
12 his allegations.
It is also his burden to address, you 13 know, the documents that we've submitted in the past.
i 14 We've gone through a station blackout calculation,
,O 15 and we've applied this Reg Guide, and we've translated the 16 frequency of winds into a station blackout -- I mean, into a 17 LOOP frequency based on duration of high winds, and he 18 hasn't addressed our analysis.
This was a 1989 analysis 19 that applied to an operating plant.
I 20 He simply hasn't addressed what's on our docket; 21 he hasn't addressed the Reg Guide; he hasn't addressed the 22 expert opinion that's embodied in the Reg Guide, that 23 translates one frequency into an expectation of LOOP.
He 24 has simply waived his hands, and that's not sufficient.
I 25 JUDGE BECHHOEFER:
Ms. Clark?
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i 419 1
MS. CLARK:
Thank you.
(.)
2 Yes.
I think really defect in his basis is 3
evidence just on the face of it.
He says here if a LOOP can 4
be caused by a 75 mile an hour wind, now he gives absolutely 5
no basis for that statement.
He doesn't even come out and 6
make a statement that a LOOP can be caused by a 75 mile an 7
hour wind.
He simply postulates that if this were to 8
happen, then a f requency would be grea'.e2 You know, the 9
regulations specifically provide '.iat an intervenor must i
10 provide a statement of expert J, inion or facts on which it 3
11 intends to rely.
12 JUDGE BECHHOEFER:
Well, there is a reference 13 there for that statement.
14 MS. CLARK:
The only reference is to --
N ])
7
^-
15 JUDGE BECHHOEFER:
Is the 1989.
16 MS. CLARK:
-- I believe that's to the SMUD's 17 indication of the frequency of winds.
He doesn't provide 18 any reference for the fact that a LOOP can be caused by a 75 19 mile an hour wind.
In fact, for that --
20 JUDGE BECHHOEFER:
Well, yes, he does.
21 MS. CLARK:
-- for this conclusion to be correct, 22 every 75 mile an hour wind would have to cause a LOOP.
The 23 only way you could say, well, that the frequency of the LOOP 24 coincides with the frequency of 75 mile an hour winds, would 1
25 be if every time there was a 75 mile an hour wind it would l
(N
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' C)
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420 1
cause a LOOP.
And secondly --
t
(_.
2 JUDGE BECHHOEFER:
Well, he has cited, he has 3
cited a basis for his probability.
4 MS. CLARK:
I don't believe he has cited any 5
basis, anything, to support the conclusion that a 75 mile an 6
hour wind will cause a LOOP, and that really is the premise 7
for this whole basis.
In fact, you know, I don't think he 8
could cite a basis for that.
If we were to go to hearing, I 9
don't think he would have any basis for coming to that 10 conclusion.
I think what he has done here is postulated --
11 JUDGE BECHHOEFER:
Yes.
But my question is --
12 MS. CLARK:
-- that if this were to happen then 13 our frequency would be greater, and he has to do more than 14 postulate.
He has to come up with some grounds for that, 7--
(
15 and I don't believe he has.
16 MR. LEWIS:
Your Honor, I think you were about to 17 ask a question, and perhaps it's an important one.
You've 18 asked a couple of times whether the Board can look at facts.
19 I think that a 1989 amendments to pleading standards 20 requires the Board to make some factual inquiry.
It 21 requires that intervenors now plead evidence, and it 22 requires that the Licensing Board determine that there was a 23 genuine dispute and it requires the Licensing Board 24 determine that that dispute is material.
254 The 1989 amendments to Section 2.714 raised the ym
(_
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threshold for the admissibility of the-contentions to i
2 require that genuine material issues only be admitted.
In j
3 so doing the Commission has necessitated some examination of 4
the facts alleged and the facts challenged in the licensee's 5
analysis.
6 The Board needs to look at what factual support-is 7
provided by the intervenor and the Board needs to look at 8
what facts exist in the licensee, analysis and make an l
9 initial determination whether there is a genuine dispute and 10 one that is material and it is legitimate for there to'be-11 this threshold factual determination.
12 Let me refer specifically to the Commission's j
t 13 Statement of Consideration, where it said:
"A contention-14 should not be admitted where an intervenor has no facts to 0
i
)
15 support his position or where the intervenor contemplates j
i l
16 using discovery or cross-examination as a fishing expedition l
17 which might produce relevant supported facts."
This is at 18 54 Federal Register.
19 JUDGE BECHHOEFER:
But that says no facts.
There l
l 20 are one or two facts that are pleaded here.
l 21 (Simultaneous discussion.)
l 22 MR. LEWIS:
It has to be sufficient facts in 23 genuine dispute, and it has to be material.
24 MR. REIS:
Your Honor., there is no fact pleaded 25 here that a 75 mile an hour wind will of necessity cause a' l
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LOOP.
There is not one fact.
He doesn't even say so.
He 2
says, "If LOOP can be caused by."
This is Logic 101.
In 3
looking at contentions, logic is not thrown out the window; 4
and what we're saying here is logic is thrown out the 5
window.
j 6
We're saying that if there can be a -- that winds 7
of over 75 miles an hour occur in 18.2 years, then 8
necessarily there must be a LOOP at least once in 18.2 9
years, but that's not logic.
There is no logic here.
We-10 can draw the Boulian Algebra diagrams on the wall, you know,.
11 and show that this can't be done.
This is Logic 101.
12 JUDGE BECHHOEFER:
All right.
Anything further on.
]
)
13 that one?
14 MR. McGRANERY:
Yes, sir.
First, the Chair is
(:)
15 correct in saying that we do have a reference there for that 16 particular calculation.
It is a reference to a document 17 furnished to ECO, pursuant to the Commission's order.
.It is
)
18 a reference that was developed and used by SMUD; it's a SMUD j!
19 calculation.
I believe that Mr. Lewis explained' earlier 20 that they, in turn, relied upon an NRC guide to consider the 21 possibility of LOOP due to high winds and the particular 22 assumption used there was LOOP caused by a'75 mile an hour 23 wind.
24 MS. CLARK:
- Yes, I believe that counsel for the l
I 25 licensee already described this methodology in which a LOOP ANN _RILEY & ASSOCIATES, LTD.
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423 1
caused by a 75 mile an hour wind occurs somewhere in the 2
line of once every 500 years or something.
3 MR. LEWIS:
Fifteen hundred.
l 4
MS. CLARK:
Fifteen hundred years.
That's the i
5 methodology that ECO is relying on to conclude that every l
6 time there is a 75 mile an hour wind a LOOP occurs.
i 7
MR. McGRANERY:
No.
I don't believe that that's 8
our point.
But as far as the particular facts go and the 9
further development of that, I will leave that to a i
10 different stage.
j 11 JUDGE BECHHOEFER:
Anything further on that one?
L i
+
l 12
[No verbal response.]
{
l 13 JUDGE BECHHOEFER:
Okay.
I gutes you can go on to l
l t
14 number seven.
l I
l 15 MR. McGRANERY:
There I would clarify only to the 16 extent of saying that, again, it's difficult to address in 17 detail a consideration that has been totally omitted.
18 JUDGE BECHHOEFER:
Well, what are you talking 19 about, "the conclusory analyses of what"?
What does that l
20 relate to?
Does that relate to frequency, or does that-21 relate to something else?
22 MR. McGRANERY:
It relates to the conclusory 23 analyses of LOOP by the licensee.
24 JUDGE BECHHOEFER:
Well, frequency or 25 consequences?
ANN RILEY & ASSOCIATES, LTD.
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f 424 l
l 1
MR. McGRANERY:
The analyses in question, again, 2
referring to the information transmitted by DAGM/NUC 93-3 079, on April 1 of this year, mixed and interweaved the 6
4 issues of frequency, coping, consequences.
And this is not j
5
-- I do not criticize them for doing that because you cannot 1
6 consider the significance of one without considering the 7
other.
It is really an integrated topic.
But my point is 8
that in this particular basis is that they have left out 9
consideration of loss of coolant during LOOP due to certain 10 mechanisms; that is, any and all mechanisms other than 6
11 evaporation.
12 This is not simply a NEPA issue.
It is, I think, l
i 13 first of all, a health and safety issue.
Secondly, in their l
14 responses to this particular basis, they, both the staff and 15 the licensee, take a point -- take a path saying that there 16 is no accidental drainage possible because there are no pool I
penetrations below the 23-foot level.
This omits both the 17 i
18 less likely event of intentional drainage by pumping the 19 pool and it also omits the possibility of earthquake damage.
20 JUDGE BECHHOEFER:
Well, do you have any basis for 21 establishing that there is any reasonable probability that 22 these two unrelated acts are going to occur at the same 23 time? The Commission normally doesn't allow us to consider 24 two significant, major accidents, unless there is some l
25 showing that they could occur at the same time, or are l
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425 1
likely to occur.
2 MR. McGRANERY:
I don't know that these could be 3
described as -- what would make these major is their 4
confluence, rather than the occurrence of one or the other.
5 What ECO, I guess, if pushed to its very' basic position on 6
this particular issue would be to say that the licensee has 7
simply failed to even consider this possibility.
It has not 8
considered it and found it too unlikely an event; it has not 9
considered it and said that'there are safeguards against i
10 it's occurrence; it simply has not considered it.
l 11 JUDGE BECHHOEFER:
Well, we already know the LOOP 12 frequency is almost 18 years or something.
How do we know 13 that every tim 3 a LOOP occurs you're going to have someone 14 trying to intentionally raid the pool or sabotage'it?
l 15 MR. REIS:
Mr. Chairman?
16 MR. LEWIS:
I don't know where you reference a 17 LOOP every 18 years.
18 JUDGE BECHHOEFER:
Well, wasn't that the 19 probability.
20 JUDGE COLE:
That was a 75 mile per hour wind 21 probability.
22 MR. REIS:
It had nothing to do with --
l 23 JUDGE BECHHOEFER:
Oh, I'm sorry, I'm sorry.
24 MR. REIS:
There is nothing in the record to show 25 18.
It is that it is over 20 years.
O ANN RILEY & ASSOCIATES, LTD.
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{-
1 JUDGE BECHHOEFER:
426 2
Or over 20, MR. REIS:
correct.
And that is what 3
it be over 20 years, the applicant relies on, that and what 4
JUDGE BECHHOEFER:
the Commission says.
5 Okay.
Well, if it's over 20
- years, I'll just rephrase my question 6
if it's at If it can occur least 20 years between LOOPS 7
that every time there is a LOOP are you assuming 8
intentionally drain the pool somebody is going to either drained?
or the pool is going to be 9
10 MR.
McGRANERY:
I would offer, first, that the 11 question of LOOP frequency is one 12
- Secondly, on which there is not agreement.
and the occasion of damage to thwe could have the occas 13 e LOOP 14 e spent the same event fuel pool through
- namely, 15 an earthquake.
JUDGE BECHHOEFER:
I mean, held that you can't cWell, has the Comm 16 otherwise, 17 think the case was Diablo C onsider that?
I
- anyon, many years ago.
if I remember correctly 18 There might I'm not have been other 19 sure.
cases, too, but 20 MR. REIS:
Yes, Diablo.
21 JUDGE BECHHOEFER:
22 Right, right.
MR. LEWIS:
I think the case that 23 to is the Diablo Canyon case you're referring In essence, 24 are seismic category one structur fuel pools spent 25 drain-down is a beyond design bes and the spent fuel pool asis accident.
It has, in ANN RILEY & ASSOCIATES, 1612 K Street, Court Reporters LTD.
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427 1
fact, been evaluated in new Reg 13.53 and the likelihood of-2 such an accident has, again, been determined to be extremely 3
remote and speculative.
Under NEPA those sort of remote and 4
speculative accidents do not require further evaluation.
5 MR. McGRANERY:
I have nothing further.
6 JUDGE BECHHOEFER:
Okay.
7 Do any of the other parties have anything further 8
on that one?
9 MR. LEWIS:
No, your Honor.
10 MS. CLARK:
Your Honor, I just have one thing to 11 say.
I think that once again I'd like to go back to 12 emphasize that the scope of this proceeding has been set t
l 13 forth by the Commission and delineated by the Commission l
l -
14 very clearly.
Whatever the licensee may or may have not 1
15 submitted in response to the Commission's remand really has l
l 16 nothing to do with the scope of this proceeding.
The fact 1
17 that they submitted some information on the consequences of i
18 a LOOP does not mean that that is now an issue for us.
19 MR. McGRANERY:
I would respectfully disagree with 20 counsel.
I think the language of CLI 93-19 makes the l
21 information presented by SMUD as a result of the 22 Commission's order most relevant to the scope of this 23 proceeding, and, in particular, what issues need not be 24 justified under the late filed criteria.
25 JUDGE BECHHOEFER:
All right.
Well, have you ANN RILEY & ASSOCIATES, LTD.
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428 1
addressed the late file criteria for this one?
2 MR. McGRANERY:
No.
Because, again, I would 3
reference the update document.
l 4
MR. LEWIS:
That is not an update document to a l
5 decommissioning plan or an ER.
At least describe it j
6 accurately.
7 MR. McGRANERY:
I didn't say it was that.
l l
8 MR. LEWIS:
That was the implication.
It has to 9
do with permanently defueled technical specification safety-1 10 analyses report, which is not related.to our decommissioning
.t 11 plan; it relates to our current configuration.
It is not 12 analyses provided on the dockets to support decommissioning, 13 and it doesn't provide any basis for a late file contention.
14 MR. McGRANERY:
Again, I would request the Chair.
15 to direct other counsel not to interrupt me when I'm i
16 speaking, please.
t 17 Secondly, this is a document directly addressing t
18 an analysis of LOOP that was furnished to us in April of j
I 19 this year after the Commission ordered SMUD to furnish us
}
20 with relevant information on LOOP and its analysis.
I don't 21 claim that it is a safety analysis document; I do not claim 22 that it is an environmental report.
It is an analysis of 23 LOOP, and that was furnished us.
24 JUDGE BECHHOEFER:
Well, wait'a minute.
It was
[
25 furnished you?
It was furnished you, I guess, not before i
4 ANN RILEY & ASSOCIATES, LTD.
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'(202) 293-3950 j
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you filed this document, was it?
lO
)
i 2
MR. McGRANERY:
That is correct.
2 JUDGE BECHHOEFER:
Well, then what are you -- why 1
]
4 didn't you address late filing in this document is what I'm 5
saying?
This is to me the kind of thing the Commission said
-1 6
fell into the late filing criteria.
)
1 7
The very fact that a more recent document may or j
8 may not support this -- I don't know whether it does or not
]
i 9
-- you might have an opportunity or could have perhaps on 10 April or May 1 or sometime before May 1 filed something and i
11 said, " Hey, look this is another basis in support of our l
i 12 contention and we didn't receive it until X date and we l
I 13 analyzed it as quickly as we could and'not unreasonably,.and t
i 14 therefore you should look at it as a late file contention."
i i
15 That we don't have before us.
f i
l 16 So as far as I'm concerned, in considering a l
17 contention, this April document that has been. referenced is i
l l
18 probably not -- we'shouldn't even consider that.
19 MR. McGRANERY:
Excuse me.
I will have particular 20 reference to our References A and B, which were furnished us 21 March 18, and, in fact, A through F, where we have said in 22 this pleading --
23 JUDGE BECHHOEFER:
Well, you haven't referenced 24 those particular -- you've listed those document, but for 25 this particular Basis 7, I don't see a reference to any of I
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+
I 1
them or to anything, actually, i
2 MR. McGRANERY:
We are referencing -- we are 3
relying on all of these references in our bases.
And where 4
we point out that a particular analysis or consideration is
{
5 absent that means that it's absent from all of these, the 6
old as well as the newly furnished.
j 7
MR. REIS:
Mr. Chairman, can I point to page four j
8 of Mr. McGranery's contentions where he says:
"All i
9 citations to references A through M in the alleged' facts and i
10 expert opinions expressed below will be.by the appropriate 11 reference' letter."
If there is no reference letter, he 12 hasn't reference it.
That's on page four of his pleading.
13 JUDGE COLE:
Yes.
But the point that_he's making
{
14 in this is that they failed to consider something, so how 15 can he make reference if it's not considered and it's not i
f 16 contained in the documents.
That's what he just said.
17 MR. LEWIS:
Your Honor, the document'--
l l
1 18 MR. COLE:
He says it's not addressed.
19 MR. LEWIS:
-- ECO has to address is'our 20 decommissioning plan and our environmental' report.
We 21 provided him some further documents so that he could l
22 determine the basis for the LOOP frequency statement in our 23 environmental report.
If he wants to look at those 24 documents and state "Your basis is insuffi'cient for your 25 LOOP frequency determination," that's a legitimate issue not-ANN RILEY & ASSOCIATES, LTD.
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431 1
requiring a lateness showing.
But with respect to any other 2
issue unrelated to LOOP frequency, it is necessary for him 3
to make a showing on the lateness factors.
In the i
4 Commission's May 26, 1993, order the Commission said:
"To 5
the extent that ECO raises issues that could have been 6
raised before because they are not dependent on the new 7
information provided regarding the probability of a LOOP, i
8 ECO must meet the criteria for late filed contentions.
If i
9 ECO cuald have raised the issue before, because-the issue i
10 would not have been dependent on new information regarding
.i l
i 11 the probability of a LOOP, it is it's
'4 9ation to address 12 the lateness factors."
l 13 That's at 37 NRC at 360, Note 8.
14 JUDGE BECHHOEFER:
The Commission in its most 15 recent September 10 orders has reiterated that at'page two, i
l 16 I'm reading, of the slip opinion.
17 MR. LEWIS:
Again, that statement relates to newly i
18 provided analysis of the probability of a LOOP.
Now, those 19 words are qualifications that are inserted in both the May 20 26, 1993, order and the September.10, 1993, order and they 21 should be given meaning.
22 JUDGE BECHHOEFER:
Right.
What I was reading, "To
)
l 23 the extent that ECO's amended-contention may raise new 1
24 issues that were not dependent on the newly provided 25 an41ysis of the probability of a LOOP, these new issues are j
l I
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i 1
subject to the late filed criteria."
That's what I was O
2 referring to.
As I read this particular issue, this doesn't i
3 relate to probability at all.
4 MR. LEWIS:
I agree, your Honor.
5 JUDGE BECHHOEFER:
Well, that's my initial 6
reaction, but I was trying to get your feel for that.
7 MR. McGRANERY:
Well, if you recall when we 8
started here, we had no documentation on the probability of i
9 a LOOP.
That was the point back then.
So at that time one i
10 could not -- one could only say that, again, identify the I
11 absence.
One could not identify absences or-lacks or 12 failures of consideration in the probability of a LOOP, 13 because we had nothing to shoot at.
14 We have now gotten this documentation of the l
lO l
15 probability of a LOOP, both before and after this filing, t
l 16 which has certain lacks of or failures to consider relevant 17 factors, and in this material you have -- in this analysis, j
18 the new analysis given us, you have interwoven, l
19 appropriately we would say, consideration of the probability 20 of LOOP, its consequences, and coping.
21 So all of our contentions, whether they be 22 affirmative or whether they are recognizing failures in the 23 analysis that has been presented,- all of these are being --
24 are dependent on the newly provided analysis of the 25 probability of a LOOP that has been given us ANN RILEY & ASSOCIATES, LTD.
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433 1
MR. LEWIS:
That's not correct, your Honor.
2 Consequences and coping were addressed in the 3
decommissioning plan and the ER, and ECO has made no showing i
4 that any of its assertions in these bases are dependent on 5
new information.
It is simply using those new documents or 6
the documents we gave them in March of '93 as an excuse to i
7 raise a brand new loco question that it could have raised f
8 years ago.
9 JUDGE BECHHOEFER:
Now, my question is:
Even'if 10 the contention arises from the new documents, did not the 11 Commission, divide it on.the basis of subject matter?
They-12 said, "Sure, you can use the new documents.
You don't have 13 to show lateness if you're talking about contention on 14 probability of occurrence.
But if you talk about anything 1
15 else, even if you use the new documents, you've got to make 16 the normal showing for late filed contentions," which is 17 factors one through five, with one given probably the most 18 emphasis.
f l
i 19 MR. McGRANERY:
That is not the way that I read 20 the language.
It says, the language asks the question i
21 whether the new issues are dependent on the newly provided 22 analysis.
23 MS. CLARK:.Of the LOOP frequency.
24 MR. McGRANERY:
Of the probability of LOOP, yes.
25 And in these documents they have now given us ANN RILEY & ASSOCIATES, LTD.
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1 themselves, testified to the fact that a probability of LOOP
()
2 is not or LOOP is not discussed in terms strictly of its 3
probability, but also in terms of coping and consequences.
4 That this is really one subject.
When you start talking 5
about the probability of loop, you aren't dealing strictly 6
with the abstract mathematics of the occurrence of the~
7 event.
i I
8 JUDGE BECHHOEFER:
Well, but my question is -- the 9
Commission seems to have divided those subject matterwise,-
10 no matter what your source is.
Even if those documents are l
1 11 your source, it's late filed.
Maybe your excuse is, "We
{
12 didn't have the information."
I don't know that that would r
13 be accurate, from what I've heard.
j 14 My question is:
Didn't the Commission divide it-1 O-I 15 by subject matter, not by when you got the' document?
I 16 mean, for frequency they said, " Yeah, you don't have to show 17 late file."
Anything having -- that's intimately related to 18 frequency, I guess, you could lump into that, but my own l
19 reading of the language says everything else you have to 20 show why it's late filed.
l 21 As I say, if the only source was the new _
22 documentation, that may be a good excuse for a late file i
23 contention; although, you haven't' presented it as such.
I 24 mean, that may be at least the first factor.
I'm not sure 25 it's true because this particular contention, perhaps, could ANN RILEY & ASSOCIATES, LTD.
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435 l
1 have been raised earlier, based on the various earlier 2
documents, the environmental report or the decommissioning 3
plan, generally.
4 MR. McGRANERY:
I do not see in the Commission's 5
language here any such distinction.
6 JUDGE BECHHOEFER:
Well, I read you something from 7
the most recent document.
8 MR. McGRANERY:
I am looking at the same language, 9
and the issue here is not whether there are new issues but 10 whether or not they are dependent on the newly provided 11 analysis of the probability of a LOOP.
That's the 12 documentation that SMUD furnished us.
13 JUDGE BECHHOEFER:
Well, still they considered --
14 they furnished you documents that covered a lot of other 15 things, and just because they arose from those documents, 16 they have nothing to do with probability of a LOOP.
If the l
17 subject doesn't, then I would -- I think on its face almost i
18 the order says that you consider it a late filed contention.
19 You could still consider it, but it seems to be what that l
l 20 language says but --
l l
21 MR. McGRANERY:
If the Board would look at 22 References A through F, you will see that all of these are 23 very tightly tied and/or limited to the LOOP issue.
This is 1
24 the analysis that the Commission was referring'to.
Our l
25 identification of issues, both positively and by absence of ANN RILEY & ASSOCIATES, LTD.
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436 1
consideration, are related strictly to these papers which 2
were furnished us strictly pursuant to the Commission's 3
order to provide us the documentation on LOOP frequency.
4 I think the main focus here is whether when the i
5 Commission refers to " LOOP frequency" it meant to confine it l
6 to a single mathematical calculation, relating to the' i
7 overall consideration of the health and safety issues of-(
l 8
LOOP, or whether it meant to refer to the normal 1
l 9
consideration of LOOP.
3 10 You can't consider frequency without considering l
l 11 its impacts, its risks.
In the abstract if one focuses l
12 strictly on LOOP frequency, there is no way that you could
{
I 13 say that that's a material issue.
It only becomes material l
14 when it's tied to its consequences.
f 15 Therefore, I don't think that~the Commission would
?
l i
16 have found that we had a legitimate contention on an issue i
17 that if looked at, the way the Chairman just phrased it, in I
18 the abstract, unconnected to physical reality and health and l
I 19 safety, would have no meaning.
You cannot attribute to the I
20 Commission a vain or meaningless act.
21 MS.-CLARK:
I don' t mean to interrupt, but in this 22 vein I just would like to point out that the Commiscion did 23 speak to the question of materiality, and they specifically 24 stated that they were not considering whether this.was-a 25 material issue, but they did acknowledge that it~could very ANN RILEY & ASSOCIATES, LTD.
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437 l
1 well be that this issue was not material and that that would 2
be a question for this Board to decide on summary 3
disposition.
4 MR. McGRANERY:
And that is when you consider it i
5 in the context of its consequences and the coping and.all 1
6 the other issues.
One could never make -- I guess we could 7
put it differently.
You could never make a decision as to 8
whether the LOOP was a material or a nonmaterial issue, j
9 until you look at its consequences and until you look at the i
l 10 coping with it to avoid the consequences.
It cannot be' 11 considered in the pure abstract.
j I
i 12 Therefore, getting back to what we were talking 13 about here, I believe that when.the Commission refers to the
{
I 14 analysis, to the newly furnished analysis,.of the 15 probability of LOOP that includes the risks and i
1 16 consequences.
It is a subject that has to be looked at in l
i 17 the real world.
We do rely strictly on the newly furnished i
1 18 analysis, which we reference here.
19 MR. LEWIS:
That's poppycock.
The commission's 20 words speak for themselves and they are obvious.
This Basis 21 7 has nothing to do with'anything new that we gave them.
22 This says that we haven't considered loco.
We haven't 23 considered loco in the documents we gave them in March and 24 we haven't considered spent fuel pool drain-down loco in our i
25 original decommissioning plan and ER.
The fact that we ANN RILEY & ASSOCIATES, LTD.
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i didn't consider them again in a subsequent submittal doesn't 2
mean that it's new information that now provides an excuse i
3 for this untimely and baseless contention.
4 MR. McGRANERY:
Excuse me.
I think that what we 5
have here is we did not have the analysis, the underlying 6
analysis, of the LOOP previously, and therefore we could not 7
tell whether these particular mechanisms, events, and other 8
circumstances raised here were, in fact, considered in the 9
underlying analysis in support of the licensee's 10 representations on LOOP in its various reports.
11 Apropos of this we would also point out that 12 Reference A, which is a SMUD memorandum allegedly in support l
13 of the basis for LOOP frequency determination submitted by 14 SMUD in 1991, this document was not developed until March'-
O 15 16 JUDGE BECHHOEFER:
A was in '93.
17 MR. McGRANERY:
Pardon me?
18 JUDGE BECHHOEFER:
A?
19 MR. McGRANERY:
A.
20 JUDGE BECHHOEFER:
It's
'93.
21 MR. McGRANERY:
That's the problem.I'm just 22 pointing out.
23 This is a memorandum that purports to the basis 24 for LOOP frequency determination in SMUD's earlier filed 25 reports, but this basis for that earlier filed' assertion of ANN RILEY &. ASSOCIATES, LTD.
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less than 20 years, for example, was not itself developed 2
until March of
'93, so it's difficult to see how this could 3
have been the basis for a 20-year determination made 4
earlier.
5 JUDGE BECHHOEFER:
On frequency, that's right, but 6
I'm not so sure about the other things.
7 MR. McGRANERY:
I was making a very isolated point 8
here.
I was just pointing out to the Board that when 9
ordered to give us the documentation behind the LOOP being 10 less than once in 20 years in material filed in 1991 and 11 1992, SMUD comes up with a mamorandum developed in 1993.
12 MR. LEWIS:
We wrote a memorandum to spoon' feed 13 ECO because ECO needs spoon feeding.
We walked them through
.l 14 step by step, so we could avoid any excuse that they 15 couldn't understand the analysis, and ECO is now faulting us-16 for having explained it in great detail.
17 We provided the underlying documents, the original 18 station blackout analysis where our one in 20-year 19 determination first came from.
We wrote them a detailed 20 memo, walking them through the entire process, pointing them 21 to each specific document.
22 The fact that we took that extra effort to make 23 sure that ECO would have no confusion about what we had 24 done, in no way casts aspersions on any of our prior or 25 current analyses.
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JUDGE BECHHOEFER:
Is that all on the seven?
2 Because then we'll take a short break.
3 MR. McGRANERY:
Yes, sir.
4 MR. LEWIS:
Yes, sir.
5 JUDGE BECHHOEFER:
About 10 minutes.
6
[Brief recess.]
7 JUDGE BECHHOEFER:
Back on the record.
8 Turning now to number e.4yht, I guess.
9 Mr McGranery?
10 MR. McGRANERY:
This one, again, I think is fairly 11 self-explanatory.
I will note that the Chair earlier raised 12 an issue as to whether ECO could address issues related to l
13 employees without an employee member, which ECO does not 14 have, not a current one.
This, depending upon the Chair's -
15
- pardon me, the Board's decision on that issue, this would 16 either be in or out.
17 I will note that in their responses, neither_the 18 staff nor SMUD raised any question of standing in their 19 discussion of Basis 8.
Otherwise, waat they did discuss, in 20 the case of the licensee, was that various other measures 21 could be used to compensate and avoid any adverse 22 consequences to the operators, but that was not discussed in i
23 their presentation on LOOP.
i 1
24 JUDGE BECHHOEFER:
What about their response to i
25 the effect that they, in fact, did discuss it?
Your-O i
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1 contention says they didn't, and they point to places where j
2 they said did.
That's the kind of fact, I think, we could l
1 3
look at right at the contention stage and just say the claim f
4 is that there was no consideration of the question, l
9 5
consideration of it was pointed to in X places, and I
6 therefore the contention is out.
]
7 MR. McGRANERY:
I am not sure what the Chair is j
l
)
8 referring to.
Both the staff and the licensee refer to the i
i 9
amount of time necessary to take corrective action to assure 1
10 that those spent fuel pool surface would not exceed or could 11 not exceed 2.5 millirads per hour, but that is not the issue 3
12 here.
The issue here is if those measures failed, as we 1
5 13 have addressed in a number of the other bases, and the fuel i
l 14 does become uncovered they have not addressed what would be i
j 15 tn thermal cr radioactive conditions resulting for the i
i 16 workers.
2 i
17 JUDGE BECHHOEFER:
Well, do they have to?
I mean, i
18 they have made an analysis, which they say shows that_the 4
j 19 workers will be adequately protected, given the particular i
j 20 releases, which you've mentioned.
l 3
}
21 MR. McGRANERY:
Their most recent analysis, if you i
1
]
22 will, presented in these pleadings falls back to the 23 proverbial fire hose, and that was not in the documents that i
24 we previously had.
We went through that earlier.
25 JUDGE BECHHOEFER:
Well, they are citing the ANN RILEY & ASSOCIATES, LTD.
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environmental report and the decommissioning plan, which are j
2 documents that have been before us for a long time.
l 3
MR. McGRANERY:
Yes.
But they have-not -- what 4
I'm saying is that the analysis of the LOOP' probability that-S they have given us they have made bland assertions that they j
6 could maintain the water level necessary to protect; they 7
have not said how.
We questioned in several different wars l
8 here whether their expectations were reasonable.
9 In their responses here, they have come up with j
i 10 the fire hose, which is powered by some previously 11 unexamined, unrepresented machine.
What we're looking at 12 here is:
What happens if even this most recently dreamed up l
13 response to maintaining the water level fails?
l 14 JUDGE BECHHOEFER:
Mr. Baxter or Lewis, whoever, 15 whichever?
l 16 MR. LEWIS:
I think our pleadings fully address 17 this issue.
I don't have anything to add.
18 MR. REIS:
Your Honor, our pleadings fully address 19 this issue.
In addition, I want to say there is a question 20 that has arisen before about a -- and it applies very much l
21 to this one as well, on the intervenor's or petitioner's 22 duties to set forth bases for the contention.
23 Where the intervenor says, "I don't have any 24 documents-because it's not covered," it's on him to set for 25 the expert opinion on which he will' rely to show that it ANN RILEY & ASSOCIATES, LTD.
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443
.)
I should be covered, and without doing that he has not
]
1 2
formulated a proper contention.
i 3
I point to 2.714 (b) (2), where it-talks about a l
4 concise statement of alleged facts or expert opinion which j
l 5
support the contention.
Now, you have to have something.to 6
support the contention.
It isn't just enough that the' 7
attorney writes it out.
When you go to it, it says, "Those j
8 specific sources and documents where the petitioner is aware 9
and on which petitioner intends to rely to establish these i
i 10 facts."
l 11 Now, the fact that something is missing doesn't 12 establish what you need first is that it is needed, and i
[
13 without having some statement of an expert witnes.. or some-14 reference to some other document that this needed in the l
15 petition -- in the documents or in the document that he is j
16 attacking, that can't come in.
i 17 Just the statement from an attorney who drafts a-l 18 pleading that "I want to say this" is not enough.
He has t'o 19 have a statement of alleged facts or expert opinion with 20 reference to those specific sources or documents on which 21 petitioner is aware and on which petitioner intends to rely 22 to establish the facts or expert opinion.
23 In each of these where he says something is 24 missing, he has to first show that it should be there, and 1
25 there has to be some expert opinion or some other document O
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t 1
that shows that it should be there.
The very fact thr.t it
[
O 2
is not in those documents -- I mean, it doesn't, the 3
documents don't deal with what,.the composition of the moon,
}
r 4
but that doesn't show that it should be in there.
5 JUDGE BECHHOEFER:
Hey, you just mentioned a good i
6 contention.
7 MR. REIS:
What?
i 8
JUDGE BECHHOEFER:
The documents didn't deal'with 9
the composition of the moon.
l 10 MR. REIS:
Right.
He could say it didn't deal f
11 with -- the documents. don't deal with the composition--of the 1
12 moon, and therefore since it doesn't have that, it doesn't 13 deal with the composition of the moon, I have a' good 14 contention.
When the regulations talk about a concise-l 0
15 statement of alleged facts or expert opinion on which 16 petitioner is aware and which petitioner-intends to rely to j
17 establish those facts, it is including the facts that l
18 something that is not there should have been covered.
Just 19 saying it should have been covered isn't enough, f
l 20 MR. BAXTER:
That was judicial' humor, wasn't it, 21 Mr. Chairman?
22 JUDGE BECHHOEFER:
Pardon?
23 MR. BAXTER:
That was judicial humor?
24 JUDGE BECHHOEFER:
It was an attempt.
I'm not 25 sure how humorous it was.
(
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1 JUDGE COLE:
You looked very' concerned.
O 2
MR. LEWIS.
It's because we couldn't distinguish-i 3
that from ECO's contentions.
4 MR. REIS:
That goes to this contention, and of i
5 course every other one where they say, "Because it fails to 6
address this, it fails to address that."
Just saying it j
r 7
fails to address, doesn't solve what is required in the l
i 8
regulations. Unless there is specific reference or unless 9
there is talk about expert testimony, it isn't enough.
And l
10 specific testimony, especially a statement of what the
{
j 11 testimony will be, or it's not enough.. We don't have that 12 time after time here, especially on eight.
13 JUDGE BECHHOEFER:
Mr. McGranery, first, I'd also j
i 14 like you to address what's your basis for_saying that J
O 15 habitability should have even been discussed at all?
I 16 mean, the staff makes this point as well in its response.
I 17 What is your basis for saying that they should have 18 discussed it?
19 MR. McGRANERY:
I believe that one of the two i
20 primary reasons we are here is to address the health and 21 safety concerns of the proposed plan under the Atomic Energy l
l 22 Act.
The essence of worker health and safety is 23 radiological and other environmental habitability; it's just 24 another phrase.
25 It is true, as counsel for the staff has said, l
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that this report does not -- that none of these papers 2
discuss the moon.
I do not find the moon to be relevant, 3
therefore, I have not noted the absence of that discussion.
l 4
However, the absence of discussion of worker 5
habitability in the event of an accident involving the 6
potential for radiological and thermal exposures, I-don't
-)
I 7
think one needs to explain that-.
That is obvious.
What we i
8 have, in fact, the counsel for SMUD yesterday referred to 9
the excess radiological exposures that would occur in the 10 event that the fuel became uncovered.
This is well 11 recognized.
12 JUDGE BECHHOEFER:
I'm not sure that " excess" is j
13 the right descriptive term, as I remember the discussion, j
14 MR. McGRANERY:
Excess over the nonexposure that i
(::)'
15 occurs when the pool is full of water and.the fuel is fully 1
i 16 covered.
He recognized that the water acts as a barrier to 17 the radiation, and thus protects the workers from exposures 18
-- from undue expos' es.
Likewise, the absence of that l
l 19 barrier would expose the workers'to excess levels.
20 JUDGE BECHHOEFER:
All right.
Now, I have a-l l
21 further question on that, just on the standing point, I'd l
l 22 like to get whether the applicant or the licensee or the i
23 staff think that the standing question should also be 24 considered in this particular contention.
One support of 25 that is in one of my January orders in Diablo Canyon which
(
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did cut out a worker-type contention on the basis of no O
2 workers, and you've admitted you don't have any.
l 3
Now, my question is:
Should I use that standing, 4
or could I use that standing as well in this particular 5
contention?
It is supported, as I say, in the' January I
6 Diablo Canyon, January '93, Diablo Canyon order, which is a 7
Licensing Board order but it wasn't appealed so I guess it's f
8 still good law or good precedent to look at anyway.
i 9
MR. LEWIS:
I can't express an opinion without
[
10 really researching the issue.
I don't think that issue 11 needs to be reached.
I think this particular basis here is,
~
12 clearly, untimely and unsupported and immaterial.
I would-13 submit that even if the Board decides to look at~the i
14 standing issue, it should also reject this issue on its l'"
15 patent inadequacy and lack of basis.
l i
16 JUDGE BECHHOEFER:
Well, if we did it on standing, 17 we'd probably look at it first and just not talk about the
{
l 18 other things.
l i
19 Ms. Clark, do you have any view on that?
l 20 MS. CLARK:
Oh, yes.
I believe that.in this case 21 absolutely there is no standing for ECO to raise issues 22 involving potential exposure of the workers.
The Commission 23 has spoken to this issue in the St. Lucy case, and, clearly, 24 decided in that case that an intervenor who does not 25 represent workers cannot raise issues concerning exposure to ANN RILEY & ASSOCIATES, LTD.
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1 the workers and that is, of course, consistent with what 2
your Honor decided in the Diablo Canyon case, j
i 3
JUDGE BECHHOEFER:
Okay..
Anything further, j
r 4
Mr. McGranery?
Otherwise, we'll go on to the next one, hot l
l 5
weather.
6 MR. McGRANERY:
Very good.
Yes, sir.
l i
7 The analyses furnished by SMUD referred to j
8 evaporation, but they do not refer to the. appropriate 1
9 weather conditions, and therefore they give no basis for us' 10 to understand what the assumptions were in their evaporation 11 analyses.
l 12 Again, an issue faced here, or to be faced here,
[
13 is the issue that we addressed earlier, at some length, as 14 to whether-the Commission's phrase " newly provided analysis" 15 refers to the documents furnished, considering the 16 probability of LOOP in context, which we contend is the only r
17 way that LOOP can rationally be considered or the l
18 probability of LOOP can be considered.
Or whether by some 19 metaphysical means we are going to carve out a probability 20 issue and try to judge.its materiality without reference to.
21 its consequences, mitigation measures, and so on.
22 JUDGE BECHHOEFER:
Well, do you have any authority 23 or basis in here that shows that hot weather is even 24 relevant?
Nothing I see here would say that hot weather --
25 what difference does it make?
i
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MR. McGRANERY:
I think that it is within our 2
common experience that as the heat goes up. evaporation is l
3 going to increase, and thus if one were using an assumption 4
of evaporation, say, at 70 degrees, you would have a much l
5 different evaporation rate in Sacramento than if you had 6
heat at 95 or 100.
It would have a significant impact on H
7 the evaporation rate, and thus the coping period.
}
8 JUDGE BECHHOEFER:
Well, but you haven't explained j
9 whether the calculations that exist are an average type of 10 calculation or --
11 MR. McGRANERY:.That's because'I can't.
They 12 don't tell us.
They have addressed evaporation -- this is 13 the thrust of what we're saying -- they have addressed 14 evaporation without addressing the constituents of.its 15 calculation so that it can be independently verified as to l
16 whether their evaporation calculations and thus 'their coping 17 period calculations are conservative or overly optimistic, 18 without considering anywhere near a worse case evaporation-19 basis.
Again, this is a question of --
l 20 JUDGE BECHHOEFER:
But don't you.have to show some 21 bases for saying that hot weather will have some effect on I
i 22 the occurrence of a LOOP, either the occurrence or 23 consequences?
I'm not sure we could officially notice that.
24 MR. McGRANERY:
I'm not asking the Board to 1
25 officially notice anything.
I'm asking the Board to note 1
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1 that they have made claims as to an evaporation rate in-2 support of their justification of a long coping period and 3
that there is nothing in the record to allow this Board or 4
the staff to independently analyze and approve their 5
evaporation calculations.
6 This does go to the coping period, it does go-to 7
the consequences, as to the risk of those consequences.
8 It's intimately tied up with the real-world impact of LOOP 9
probability, and we have not basis on which to analyze it.
{
10 For all I know, they may have used 130 degree days; on the
}
l 11 other hand, they may have used 40 degree days.
Much i
12 different consequences for. evaporation, but we don't know.
[
i 13 Again, this is something that's missing.
l l
^
14 JUDGE BECHHOEFER:
Mr. Lewis?
t 15 MR. LEWIS:
Yes.
ECO drafts this basis without 1
16 any regard whatsoever to our actual analysis.
_There is'no j
f 17 reference, no discussion of what our analysis is.
The 18 discussion right now indicates that it doesn't even' relate 19 to our analysis.
Our analysis in our environmental report
{
20 and decommissioning plan assumes -- takes no credit for t
21 evaporative cooling or rather ambient heat loss.
If we had 22 when we were considering how fast the water would heat up, t
23 we would have increased the heat-up periods because l
24 evaporation would have cooled the spent fuel pools.
i
~t 25 We also did analyses, though, presented in the ER 1
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and decommissioning plan that reflect how long it takes for 2
reduction in level when tne spent fuel pool is already 3
boiling.
We show that it takes 17.7 days once the pool is 4
boiling to drop from 37 feet to 30.7 feet.
5 There is a further analysis in the staff' safety 6
evaluation report that looks at how long it would take the i
7 spent fuel pool to drop from 23 feet, which is the lowest 8
penetration, to the top of the assemblies.
Again, assuming 9
that the spent fuel pool is already boiling, and that's 15 10 days.
These analyses show, you know, even once you've gone 11 up to the point where the fuel pool is boiling it takes 12 weeks for their to be, you know, any significant lowering in l
13 spent fuel pool level.
14 This is our analysis in the decommissioning plan 15 and the environmental report and in the staff safety 16 analysis report, and it is ECO's obligation to address that 17 information.
It is likewise ECO's' obligation to present 18 facts and expert opinions that demonstrate specific errors l
19 or inadequacies in that analysis.
To simply waive their 20 hands and say, "Well, there's a reference to evaporation but 21 I don't understand it" isn't good enough.
22 JUDGE COLE:
Mr. McGranery, would you agree that 23 evaporation at a boiling point temperature would be more 24 severe than any temperatures of the pool water caused by hot 25 water outside?
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t 452 1
MR. McGRANERY:
I would.
2 JUDGE COLE:
Does that render your contention f
3 moot, then?
i 4
MR. McGRANERY:
No, sir.
i 5
JUDGE COLE:
Why not?
l 6
MR. McGRANERY:
Because in the analysis and in the 7
analysis that they present they take credit for -- again, 8
Mr. Lewis is correct in' talking about the value of 9
evaporation for cooling of the fuel, but that's not our t
10 point.
It is rather -
_,d he also fully addressed the back l
11 end; that is, once the pool reaches boiling.
What-is 12 omitted is the period of time it takes it to reach boiling.
1 13 Again, referring to -- this is in other places, 4
14 but for.the sake of convenience, I am again referring to the j
,O 15 analysis in DAGM/NUC 93-079.
There it speaks of the'SFP j
16 decay heat load, and it addresses the periods of time that i
17 it takes for the water level to go down as a result of 18 evaporative losses.
It addresses that in detail.in~ support 19 of its long coping period at temperatures below boiling, and 20 that's where the relevance of the weather is because we have l
21 two sources of heat on the water: one is from the fuel 22 itself and the other is external from the environmental j
23 conditions.
24 That's the point; that is, that's the part of the 25 equation that is missing.
That is, they cannot support O
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their optimistic assumptions as to slow evaporation without 2
relevant -- without consideration of the.various temperature 3
conditions.
There is nothing in this material that allows 4
us to look at what those environmental conditions were in 5
their calculations.
6 JUDGE BECHHOEFER:
Well, what difference does it i
7 make?
I mean, if they don't take credit for anything, which t'
8 they say they don't, what difference does it make?
Assume 9
it starts boiling tomorrow --
10 MR. McGRANERY:
But they do.
I think if --
11 JUDGE BECHHOEFER:
-- assume it starts boiling l
12 tomorrow, is there not still no consequences of 13 significance?
Assume the period is zero.
i t
14 MR. McGRANERY:
Excuse me.
I will read briefly:
l 15 "During the defueled condition, the normal 16 operating SFP temperature is maintained below 90 degrees 6
17 fahrenheit, and SFP operating temperature near 70 fahrenheit i
18 is not uncommon.
At an initial SFP. temperature of 90 l
19 degrees and 140, the primary SFP cooling system is lost.
A 20 minimum of 350 and 250 hours0.00289 days <br />0.0694 hours <br />4.133598e-4 weeks <br />9.5125e-5 months <br />, respectively, is available for 21 operators to take corrective action to restore the primary 22 SFP cooling system prior to exceeding 180, when the initial 23 SFP level is greater than or equal to 23 feet 3 inches.
24 Again, the maximum - "
25 It goes on.
They do, in fact, consider the effect ANN RILEY & ASSOCIATES, LTD.
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of evaporative cooling and try to establish coping periods l
2 based on particular water temperatures.
They also later 3
say, " Based on this same District calculation summarized 4
above for the SFP decay heat load several hundred hours are 5
available before significant evaporative losses of SFP water 6
inventory can occur, due to loss of the primary SFP 7
cooling."
8 What we're missing here is what the role of 9
external environmental temperatures would be on this 10 evaporative process.
11 JUDGE COLE:
But if the information that they have 12 provided about the number of hours that you have before 13 drastic action has to be taken is of the order of a dozen-14 plus days at the boiling level, would not temperatures less l
15 than boiling provide considerably more time for action?
l i
16 MR. McGRANERY:
That's certainly true, but they I
17 don't do that here.
What they say --
18 JUDGE COLE:
They don't need to, do they, if 19 they've identified a worse condition and calculated a 20 considerable number of days before emergency action has-to 21 take place?
22 MR. McGRANERY:
Here, they say that would have 23 approximately 10 days before the cooling system exceeded 24 180.
They don't say anywhere here what the' environmental 25 conditions are in that calculation or assumption.
What I'm ANN RILEY & ASSOCIATES, LTD.
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offering is that depending on the external temperatures, 2
that particular premise that they have 250 hours0.00289 days <br />0.0694 hours <br />4.133598e-4 weeks <br />9.5125e-5 months <br />, or 10 days 3
and 10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br />, that might be very conservative if it's done 4
at 90 or 100 degrees and it might be very unrealistic if 5
it's done at 32.
6 JUDGE COLE:
But there aren't more than.10 days?
7 MR. McGRANERY:
But we don't know the basis of 8
that.
)
i 9
JUDGE BECHHOEFER:
At 212 you have -- assuming 212 10 immediately, you have some time still.
1 11 MR. McGRANERY:
This does not mention any boiling.
12 MR. LEWIS:
Well, the reason this doesn't mention I
13 boiling is because this isn't the LOOP analysis; LOOP i
l 14 analysis is on the preceding page.
This is a separate.
i l
15 analysis of spent fuel pool decay heat load.
This analysis l
16 that Mr. McGranery has been discussing does not assume a I
17 LOOP.
It is an analysis of what happens if_you' lose the j
18 spent fuel pool cooling system, and this analysis says i
19 running one of the_ ventilation fans temperature never gets 20 up beyond 185 degrees.
It shows it takes 350 or 250 hours0.00289 days <br />0.0694 hours <br />4.133598e-4 weeks <br />9.5125e-5 months <br />, 21 depending on where you start, to even get up to 180 degrees.
22 This whole analysis is entirely irrelevant to the LOOP 23 issue.
24 JUDGE BECHHOEFER:
But I think what I was trying 25 to raise here, and I think what Dr. Cole was trying to raise ANN RILEY & ASSOCIATES, LTD.
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1 is that even if you go to 212, assume the worse --
O 2
MR., LEWIS:
You're absolutely right,.if you do 3
assume the lowest possible starting point of the spent fuel-4 pool cooling level, 23. feet below penetration, and'you 5
assume instantaneous boiling, the analyses-still show 15 6
days.
7 JUDGE BECHHOEFER:
That's what I was referring to 8
so --
i 9
MR. LEWIS:
Absolutely.
j 10 MR. REIS:
Your Honor, Ms. Clark will address this 11 part of it, but I just want to say in support of what I said 12 before.
If you look at this contention, there are.words 13 there, "The significance of hot weather as a serious l
14 compounding factor," and you talk about " significance" and-i l
i 15
" serious compounding factor."
16 That's exactly why the Commission has in its l
17 regulations and why when you talk about something fails to 18 say something, you need some basis, some expert opinion or 19 some statement of facts, other than those coming from an 20 attorney -- or purported facts coming from an attorney -- to 21 show, to give the basis for a contention.
It's the very 22 reason why we must meet the standards in 2.714 (b) (2).
l 23 We need something to show that this is a serious l
24 compounding factor or that there is significance.
The very 25 fact that you say something is omitted is not enough.
This l
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l 457 i
1 very contention and the discussion that has gone on with Mr.
2 McGranery with the Board with Mr. Lewis shows the importance 3
and why every contention that does not have a reference to 4
either someone's testimony, which will-be the basis for this 5
matter, or some facts established must be ignored.
6 Ms. Clark will address this further.
7 JUDGE MURPHY:
Mr.. Reis, before Ms. Clark, is 8
there sufficient information in the decommissioning report 9
for Mr. McGranery's expert to have calculated the concern 10 that he has about evaporation, knowing the volumes in the 11 spent fuel pool and the information about the decay heat and 12 the fuel that's in the pool?
Does that information exist 13 already in the decommissioning report so that his expert 14 could have made that calculation?
15 MR. REIS:
I believe it is.
If you know how long i
16 the fuel has been out of the reactor and you can do that.
17 And if you go back to the original SER, it certainly will 18 show the dimensions and the original plans for the plant, 19 which are on file, will definitely show the volume in the 20 spent fuel pool itself.
So I believe, although I am not an 21 expert and hesitate to testify as a lawyer, just as I was.
l 22 faulting them as testifying as lawyers -- or faulting Mr.
23 McGranery for testifying as a lawyer -- I won't say.
l 1
i 24 definitely, but I believe there is sufficient basis for an.
1 L
25 expert to reach those matters.
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JUDGE MURPHY:
Mr. Lewis, do you have anything?
2 MR. LEWIS; Yes, sir.
At page 3-35 -- I'm sorry, 3
at Table 3-21 of the decommissioning plan, the spent fuel 4
pool decay heat rates at various points in time are 5
tabulated in BTUs per hour.
A BTU is the amount of energy 6
it takes to raise one pound of water one degree in 7
fahrenheit; and by applying the volumes with that decay heat 8
load, you can figure how long it takes to heat up and how 9
long it takes to boil down.
10 The decay heat loads were derived, in turn, from-11 the methodology that's specified in the decommissioning 12 plan.
It's Branch Technical' Position ASB 9-2 and-ANSI 13
- Standard, A-N-S-I, 5.1-1979, and it's a method of 14 determining decay heat power that's accepted by the NRC.
If 15 Mr. McGranery had applied the expertise that he claims he, 16 indeed, has in the form of Mr. Ross, they could have 17 certainly taken this information and made calculations to 18 show we're in the right ball park.
19 MR. McGRANERY:
If I may offer one very particular l
20 point here.
First, I read the discussion in the context of l
21 LOOP slightly differently than counsel for SMUD.
But 22 particularly to your question, Judge, the District here 23 relies on two District calculations for their calculations 24 of evaporation and boil-down, Z-SFC-M 2533, apparently, 25 dated June 7, 1991, and Z-SFC-M 2554, which may have a date j
?
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459 1
of November 1, 1991.
Neither one of those calculations are O
i 2
available to us for independent analysis and verification.
3 JUDGE COLE:
Was not the methodology provided to 4
you in the Commission order submittal that SMUD made back in 5
April, so that given the methodology you could have -- your 1
6 experts could have made those calculations of what your 7
concern was about the weather, about differences in-8 temperature?
1 9
MR. McGRANERY:
We were given no methodology l
10 addressing the ev;poration of water from the fuel pool.
Of 11 course, if we had been given one methodology, which is a 12 case contrary to fact, we still would not be able to have l
1 i
13 verified what SMUD did or didn't do because it did these l
14 calculations on some undisclosed basis using undisclosed
)
15 assumptions.
Until we have access to these calculations, we 1
1 16 have no way of knowing whether their results presented here 17 are correct, conservative, or overly optimistic.
18 MR. LEWIS:
That's just not true. _This 19 calculation that he is referring to in the April 1, 1993 20 letter Z-SFC-M 2553, I'll read it, "Shows that initial SFP 21 level of 23 feet 3 inches, it would take a minimum of 15 22 days to boil down the SFP to the top of the fuel 1
23 assemblies."
i 24 That's a statement in this April 1, 1993 letter.
25 Our original decommissioning plan, as I just pointed.out, O.,.
1 ANN RILEY & ASSOCIATES, LTD.
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specifies the decay heat load in BTUs per hour applying --
2 and this statement, by the way, in the April l',
1993 letter 3
says:
"This amount of time does not' consider the time to 4
heat up, the spent fuel pool from the maximum level of' 5
operating temperature 6
140 F to the boiling point 212 F."
7 So this 15 days assumes instantaneous boiling at 8
the lowest level.
The original decommissioning plan 9
specifies the decay heat load and it's a simple matter for.
10 someone with any technical expertise whatsoever to take the 11 decay heat load and BTU per' hour and figure out how long it 12 takes them to boil down this volume of water.
i 13 The dimensions in the spent fuel pool can be 14 obtained from the safety analysis report, the original 15 report, the defueled safety analysis report,-any number of i
16 documents.
They could certainly have checked this statement i
17 based on information provided in the original i
18 decommissioning plan.
19 MR. REIS:
I think Ms. Clark has something.
20 JUDGE BECHHOEFER:
Oh, yes.
21 Ms. Clark?
22 MS. CLARK:
Yes.
First of all, I'd like to point I
23 out that if ECO wanted to raise a contention alleging that 24 SMUD has not provided us an adequate analysis, the time to 25 do that was when they were filing contentions on the i
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1 decommissioning plan.
ECO has stated that no more analysis
\\
2 was provided in the SMUD filing that was submitted in 3
response to the Commission's directive, and, in fact, that 4
was the substance of the contention that they did file and l
5-was admitted on LOOP frequency.
l 6
They have no excuse for not having filed such a l
7 contention on the analysis of the decay heat load if they 8
wanted to do so.
Now, Mr. McGranery has provided some very j
9 cogent arguments as to why he would like to at'this time 10 admit a contention on that factor.
As he has pointed out, i
11 in the real world here the frequency of the LOOP, whether it 12 occurs more often than once every 20 years or less often 13 than once in 20 years, simply is not of any significance 14 when there aren't going to be any-consequences from a LOOP.
l O
15 i
16 The fact that he needs to get this in, in order to 17 have a material issue to litigate is not a basis for letting 18 it in at this time.
The fact is this contention is late.
19 Any contention that is not premised on the frequency of a 20 LOOP is late, and he must address the late filing criteria.
21 MR. McGRANERY:
If I may make one or two 22 amendments to what the staff has just said.
Our position is 23 not that the newly furnished material furnishes us nothing 24 more than we had to start with.
What we had to start with 25 was, in fact, nothing.
The new material has furnished us a ANN RILEY & ASSOCIATES, LTD.
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1 great deal more, but what it has also done, it has allowed 2
us to identify in particular fashion various areas where l
3 SMUD's LOOP analysis fails.
4 In particular, getting back to the document that 5
we were just dit, cussing, it shows by the use of italics as 6
opposed to ordinary Roman, where new information is being 7
added to their LOOP analysis.
Both of the calculations that 8
I refer to -- excuse me -- constitute such new material.
9 Secondly, while --
10 JUDGE BECHHOEFER:
Well, given that, shouldn't you 11 be advocating acceptance of a late filed contention, I mean, 12 good cause, et cetera?
13 MR. McGRANERY:
Well, that is certainly an 14 argument that we could make; however, I consider that only a s
15 secondary argument, since our primary position is that the l
16 reference to analysis of LOOP probability does not stop at 17 that one mathematical calculation but an analysis of LOOP 18 probability also necessarily includes an analysis of LOOP 1
19 consequences and risks and coping.
20 Of course, this is new information, and, yes, that 21 does satisfy Factor 1.
As to all these issues, there is 22 certainly no one else to protect our position, and there is 23 no other means to protect that.
While it would --
24 JUDGE BECHHOEFER:
Well, the given the licensee's 25 statements, I guess it's the Factor 3, why would it help to ANN RILEY & ASSOCIATES, LTD.
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particular question?
3 MR. McGRANERY:
Well, I disagree with what he t
4 said.
We have no idea of what the District considered in i
i 5
either the first calculation 2533, which counsel addressed, 6
or the second one, 2554, which he did not.
We are not~1 eft-l 7
to -- we should not be left to speculate what sort of
-l 8
assumptions and facts the District used in reaching these 9
conclusions.
10 It certainly would not be helpful to try and 11 reinvent the wheel and come up with our own.
What-we can do 12 here is examine the calculations on which the licensee i.
13 relied and verify whether ECO and its experts consider the l
l 14 assumptions appropriate, conservative, or foolish.
I 15 MR. LEWIS:
What ECO is just indicating isLthat it j
l 16 has no clue whether there is any deficiency in our l
I 17 submittals and it requests to use discovery as a fishing 18 expedition to see if there is any basis they can dream up i
19 for their contention, and that is not the Commission's 20 regulations.
The Commission requires a threshold showing of 21 evidence supporting the contention and a showing of 22 materiality.
l 23 MR. McGRANERY:
Counsel would be right but for one 24 thing, that is, the basis in question here shows that the 25 District has made various assertions as to coping period and ANN RILEY & ASSOCIATES, LTD.
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1 it has not considered -- it has not shown the extent to j
2 which it has considered, if it has considered at all, the l
3 environmental conditions, especially high heat.
j 4
MR. LEWIS:
Our analysis shows that even if you i
5 assume instantaneous boiling it takes weeks.
That's what it 6
shows, and that is unaddressed.
7 JUDGE BECHHOEFER:
Yes.
That's what I had asked 8
about before.
Doesn't that say that say that all of these 9
other things, well, they are informative, but they are i
10 irrelevant?
l 11 MR. McGRANERY:
I don't think so.
We do not --
l 12 they have come out and said that it would take 15 days, but 13 we have no basis on which to verify that.
You have no basis i
l-14 on which to know whether it's right.
i 1
i 15 JUDGE BECHHOEFER:
Well, do you challenge that,
(
f 16 the 15 days?
l 17 MR. McGRANERY:
We do challenge it.
We think 18 there is an interaction here -- there is an interaction s
l 19 here.
20 JUDGE BECHHOEFER:
Yes.
But I don't see a 21 challenge that 15-day period at boiling.
I see a challenge 22 to the period before you get there --
23 MR. McGRANERY:
You certainly may --
24 JUDGE BECHHOEFER:
-- which, I would guess, you 25 could probably throw away or ignore.
O ANN RILEY & ASSOCIATES, LTD.
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l 465 1
MR. McGRANERY:
There would be a challenge to 2554 2
because that does address, and they do take credit for the-3 conclusion as to the minimum of 250 hours0.00289 days <br />0.0694 hours <br />4.133598e-4 weeks <br />9.5125e-5 months <br /> -- that's the 10 4
days and 10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br /> I referred to earlier -- before the bulk 5
coolant can reach a steady state value of 185.
They do take 6
credit for that.
There you do have the hot weather 7
interaction or cold weather interaction, and we have no l
8 basis to know whether or not that is correct.
9 MR. LEWIS:
Nothing further, your Honor.
I 10 JUDGE BECHHOEFER:
Anything further on that one?
4 11 MS. CLARK:
No, your Honor.
[
(
12 JUDGE BECHHOEFER:
I read number 10, if we go on
{
13 to 10, I don't read that as a contention at all.
It's a 14 summary of what we've been talking about.
{
O l
15 MR. McGRANERY:
I totally agree.
16 JUDGE BECHHOEFER:
So I guess we can go to 11,
+
i 17 then.
l 18 MR. McGRANERY:
If I may clarify one thing --
19 JUDGE BECHHOEFER:
Well, on 11'I wanted to find 20 out first, really, what's a " fuel fighting temperature"?
l 21 What does that mean?
l 22 MR. McGRANERY:
It's very bad English..
What it 23 refers to is the effect on fuel in an environment of 24 temperatures above 212.
That is, fighting in the sense of 25 the effect of the ability of the fuel elements to resist and 70RJ RILEY & ASSOCIATES, LTD.
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466 1
maintain their integrity in.that environment; that is, to 2
what extent.that poses an additional risk.
3 JUDGE COLE:
But isn't this the same fuel that was.
4 subjected to temperatures many times that in the reactor.
5 Why would you raise the question of that being a problem, 6
being merely 212 degrees?
7 MR. McGRANERY:
Because of years and corrosion.
8 That is, it was designed to resist a.nuch more hostile 1
9 environment for a period of one to three years, let us say, l
l 10 years and years ago, but we do not know now what effects.the 11 boiling water would have on this very old and corroded fuel, 12 weakened fuel' structures.
13 JUDGE BECHHOEFER:
Mr. Lewis or Mr. Baxter, 14 whatever the case may be?
l 15 MR. LEWIS:
There is no basis for this assertion.
16 There is nothing in the basis about the corrosion of a spent i
i 17 fuel pool for a number of years; there is no expert opinion l
18 proffered.
There is nothing that indicates that i
l 19 temperatures are going to significantly exceed 212 degrees, 20 even if you've got complete boil-down.
21 We've already shown that you're not even going to 22 get to the point where you lose spent fuel pool coolant 23 because you have such a long time to be able to take 24 corrective action.
This is just, you know, total 25 speculation unsupported by any facts, unsupported by any (O
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1 expert opinion, and unsupported by any showing of 7
i 2
timeliness.
It is a patently inadequate and unsupported 3
allegation.
4 JUDGE COLE:
Mr. McGranery, the only way we reach 5
temperatures above 212 would be if all the water were gone; 6
right?
7 MR. McGRANERY:
No, sir.
The water would be 8
boiling.
9 JUDGE COLE:
It would be at 212, assuming it was 10 atmospheric.
11 MR. McGRANERY:
Pardon me.
- Yes, 12 JUDGE COLE:
So it wouldn't be above 212, though, 13 would it?
14 MR. McGRANERY:
Excuse me, at 212.
Thank you.
15 That is, what we were addressing there was the effect of 16 boiling water on these rather old fuel elements.
I t
l 17 JUDGE COLE:
Okay.
So your Contention 11 states, 18
" Fighting temperatures above 212."
You meant fighting 19 boiling water temperature?
20 MR. McGRANERY:
Boiling water temperature, yes, I
i 21 sir.
Thank you.
22 JUDGE BECHHOEFER:
Now again on this one, are you l
23 claiming -- does this relate or what relation does this have 24 to frequency of a LOOP as distinguished from other 25 characteristics of a LOOP, in terms of timeliness?
l ANN RILEY & ASSOCIATES, LTD.
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MR. McGRANERY:
What this relates to is the j
v 2
consideration, the importance or risk presented by the 3
frequency of a LOOP put in perspective by a possible 4
consequence.
Again, one cannot analyze the materiality of 5
the frequency of LOOP in isolation from its risks and 6
consequences.
7 JUDGE BECHHOEFER:
Further comment by staff?
8 MS. CLARK:
Staff has no further comment.
9 JUDGE BECHHOEFER:
The Board believes that since 10 we have now finished the LOOP contention and we have one 11 further contention, it might be a good time to break for 12 lunch and come back for the environmental assessment-13 contention.
~1 14 Let's see,'well, let's resume about 1:00.
15
[Whereupon, at 11:55 a.m.,
a luncheon recess was 16 taken.)
17 18 19 20
[
21 1
22 i
l 23 I
l 24 l
l 25 I
l ANN RILEY & ASSOCIATES, LTD.
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l 469 l
l l
1 AFTERNOON SESSION l
]
2
[1:00 p.m.]
i
{
3 JUDGE BECHHOEFER:
Back on the record.
j i
4 We are now going to be considering the contentions I
4 5
on the environmental assessment.
With respect to these, the i
1 6
Commission has said that so-called " lateness criteria" j
7 should be addressed and satisfied.
I might point out i
B there's a, I guess, Footnote 1 under the contentions,-raises
(
f 9
some question about the consistency of the Commission's 1
]
10 directions with NEPA.
I don't believe the Board could take t
j 11 that into account at all.
1 j
12 I think we are bound by the Commission's 13 directions, but I'm just noting that we note that you have i
l 34 made that point.
But as I say, given the Commission's s
l 15 directions, I don't think we could do anything about that.
i j
16 So in conjunction with these contentions, we will consider 17 the lateness criteria.
}
18 I guess the first five of the bases we could i
19 almost group together, and the question I raise is:
To the 1
1 20 extent the Commission's rules provide that preparation of a
21 some of these documents is.a discretionary matter, is there i
22 any abuse of discretion here?
j' 23 So in dealing with these, you may want to address 24 that.
Because if the rule says it's discretionary and the 25 staff did or didn't do something, it seems to us that it's s
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likely to be within their discretion, unless it's an abuse l
l 2
of their discretion in the particular circumstance.
So you j
3 may want to focus your arguments on that factor, as well.
[
4 You may proceed.
5 MR. McGRANERY:
Thank you.
l 6
I agree with the Chair that the first five were 7
largely intended to be taken-as a whole and what they do is
{
l 8
there are really two issues here.
First, there is the j
9 question of whether the NRC staff abused its discretion in 10 not deciding to prepare a draft EIS here.
l I
11 Secondly, and this does not address any 12 discretion, these five read together basica11'y say that
}
13 because this is before the Board the staff may not issue a f
i 14 final FONSI; it must issue a draft FONSI.
The regulations l
15 require that when a draft FONSI notice must be given in the l
I l
16
" Federal Register" for the opportunity for all interested 17 persons to file comments and a place must be identified
.i 18 where the comments are to be sent and a time period must be 1
19 allowed for those comments.
That hasn't been-done here.
20 That is not a matter of. discretion.
The relief that ECO 21 would seek is for the panel to direct the staff to perform 22 that administerial obligation required by the regulations 23 and then to receive such comments and make-them available to l
24 the panel and ECO so a determination can be made as to the j
l 25 adequacy of the draft FONSI.
Alternatively, of course, on i
l
[
t ANN RILEY & ASSOCIATES, LTD.
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receipt of such' comments, the staff might of its own will 0
2 decide that they indicate that a draft EIS, rather than a 3
finding of no significant impact should-be issued.
So in 4
that later half, we are not addressing a matter of 5
discretion.
6 JUDGE BECHHOEFER:
Now, is ECO injured by this
- i 7
inasmuch as ECO has this proceeding in which to file any 8
comments that it wished to file?
{
9 MR. McGRANERY:
ECO is injured because it does not 10 have available to it the expertise.of other interested 11 persons, and this Board, this panel,-is also injured because 12 it is deprived of the comments of'the universe of possibly-13 interested persons out there.
NEPA is a procedural 14 requirement, and it's demands under the Act and'even in the 15 Commission's regulations are often quite precise.
One of l
16 those directione in this case is that notice and the 17 opportunity to file comments has to be given.
And anybody -
18 19 JUDGE BECHHOEFER:
Well, let me ask you, for an 20 assessment, where is there any such requirement as 21 distinguished from option?
That option'is clearly there.
22 MR. McGRANERY:
It states here at Section 23
- 51. 33 (c) :
"A draft finding of no significant impact will,"
24 not may "be marked draft and contain the information 25 specified in 51.32, be accompanied by or' include a request i
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472 1
for comments on the proposed action and on the draft finding 2
within 30 days or such longer period as may be specified in 3
the notice of the draft finding; and, four, be published in l
4 the ' Federal Register' as required by Sections 51.35 and 5
51.119."
6 JUDGE BECHHOEFER:
Well, doesn't that section just I
7 say when a draft finding is prepared it will do this?
l 8
MR. McGRANERY:
That is correct.
9 JUDGE BECHHOEFER:
.Now, we have the difficulty 10 because this finding is not marked either draft or final, we 11 have the difficulty of knowing which this is.
However, the i
12 regulations again help us here because Section 51.34 (b) 13 states that "When a hearing is held on the proposed action 14 under the regulations in Subpart G of Part II, or when the 15 action can only be taken by the Commissioners, the 16 appropriate staff director will prepare a proposed finding j
17 of no significant impact, which aay be subject to 18 modification," et cetera.
19 So we know that this is a draft finding, since it 20 cannot be a final finding.
Once we know that, then the 21 administerial duties imposed by 51.33 (c) fall upon the 22 staff, and the staff simply has not performed them.
23 JUDGE BECHHOEFER:
Okay.
Either Mr. Lewis or --
24 MR. LEWIS:
Yes, sir.
This assertion has not 25 legal basis.
Section 51.34 does not require in cases where ANN RILEY & ASSOCIATES, LTD.
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473 i
1 there is a hearing that there be a draft finding published.
O l
2 It uses a different term; it uses the word " proposed 3
finding."
If the Commission meant draft finding subject to j
4 51.33, it would have said so.
By using a different term, it l
i 5
clearly meant something else.
j 6
The purpose of 51.34 (b) is simply to reflect the 7
fact that when there is a hearing on an environmental issue 8
the Licensing Board has the authority to modify the finding.
9 The staff's finding acts as a proposed finding; it is not 10 final.
There is still adjudication which addresses it, and 11 that adjudication has the ability to modify the staff's 12 proposed finding; 51.34 in no place specifies that there is l
13 a need for public comment under those circumstances.
14 Mr. McGranery and ECO have pointed to no precedent 15 or no legal authority that indicates where there is a 16 hearing there must be a draft finding subject to public 17 comment.
He indicates no purpose that would be served by 18 such a process.
In addition, irrespective of these legal 19 issues, it is still a requirement that ECO demonstrate that 20 it's contentions are material.
It has to demonstrate that 21 there is an issue whose outcome could affect this 22 proceeding.
23 I submit for ECO to make that showing, ECO must 24 show some prejudice to its rights and its ability to i
25 participate in this proceeding.
If a procedural issue.has ANN RILEY & ASSOCIATES, LTD.
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l 474 1
no implications with respect to ECO's ability to 2
participate, I submit that even if there were error -- and j
l 3
there is not -- it would be harmless and would not raise a 4
material issue.
5 JUDGE BECHHOEFER:
What about Mr. McGranery's
[
i j
6 statement that ECO would like to rely on the views advanced i
7 by members of the public in response to proposed draft j
8 findings?
The point he made a couple of minutes ago.
l 9
MR. LEWIS:
That does not show that there is any i
10 inadequacy in either the environmental assessment or the 1
11 environmental report.
I don't think that advances a I
12 specific basis showing that ECO is, indeed, prejudiced or 13 that there is a genuine material dispute here.
I i
14 JUDGE BECHHOEFER:
Are there not NEPA cases -- and C:)
1 15 I don't have any specific in mind but I know that there are 16
-- that say that violation by an agency of a procedural 17 requirement constitutes per se injury to a member, an 18 interested member, of the public?
19 MR. LEWIS:
There were cases that took that l
20 position with respect to standing.
That position, though, j
l 21 has been rejected more recently in a series of cases 22 considering standard and also in the context of stays and 23 now require a showing of particular environmental injury to 24 an individual before he can be given standing.
They have 25 rejected the concept that a NEPA violation is injury per se, i
i 1
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475 1
but I'm afraid I can't give you citations.
2 JUDGE BECHHOEFER:
Well, I know the cases you're 3
talking about.
They're the same ones I was talking about.
f 4
I was just questioning you about them, 5
Okay.
Ms. Clark?
6 MS. CLARK:
Yes.
First of all, I don't believe 7
that ECO has in any way raised the question of.whether the 8
staff abused its discretion in deciding whether to prepare a 9
draft or a final FONSI in this case.
I think it's apparent t
10 from a reading of their bases that there premise is actually i
11 that the staff was required to prepare a draft.
j l
1 12 While he relies on the regulation 51.33, that 1
l 13 regulation actually reads that there are a number of 14 circumstances in which a draft finding would ordinarily be l
\\
15 prepared.
This in no way requires the staff to prepare such l
i 1
16 a finding simply because there are some circumstances in
)
1 17 which they may.
j i
18 In fact, the Commission when promulgating that 19 very regulation made the specific statement that these 20 circumstances include.those in which preparation of a draft 21 finding would further the purposes of NEPA.
The NRC staff 22 is not required to use this discretionary procedure.
23 I think in view of the Commission's clear 24 statement here, there is no foundation for this, for these 25 contentions.
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476 1
JUDGE BECHHOEFER:
Well, would you agree that if l
O 2
there were an abuse of discretion of the staff, if the l
3 circumstances existed where issuance of a draft finding l
4 would be, well, say it was included in the examples, the 5
specific examples given, and the staff didn't do it, that i
i 6
still might be viewed as discretionary but could not that 7
be, perhaps, an abuse of discretion?
8 MS. CLARK:
I agree that such a contention could 9
be, could conceivably be made, but I submit that ECO simply i
10 has not made that contention in this case.
l l
11 JUDGE BECHHOEFER:
All right.
12 Mr. McGranery?
{
l i
13 MR. McGRANERY:
ECO's argument is that the staff I
14 has two options available to it: a draft FONSI or a final l
O' 15 FONSI.
l l
I 16 JUDGE COLE:
But doesn't the rules identify 17 another, a proposed finding?
18 MR. McGRANERY:
I don't think that there is.
I l
L 19 would consider that synonym to be a meaningless distinction 20 because in that very paragraph where the word " proposed" 21 occurs, it is contrasted with the final' finding, which is 1
22' made by this Board.
I would offer-that the phrases proposed 23
-finding and draft finding are total synonyms You have a 24 dichotomy'and the dichotomy is referred to as " draft" versus i
25
" final" in one.section and " proposed"'versus " final" in the O
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477 1
other.
I don't believe there is any difference.
2 Pardon me, I would also offer that the staff's 3
approach here was subtly trying to avoid this issue by 4
failing to describe the instant finding by any of those f
5 three adjectives.
6 MR. LEWIS:
Your Honor, I submit that ECO's I
f 7
interpretation is not supported by a common sense reading of i
8 these provisions.
Section 51.33 indicates that the staff i
9 has the option in its own discretion, if it wants, under 10 certain circumstances to seek comments'on a draft 11 environmental assessment, and that's what 51.33 stands for.
12 Section 51.34 stands for the proposition that if 13 there is a hearing, the finding that the staff makes'may be j
14 subject to modification, and that's what 51.34 stands for.
l 15 There is no common sense or sensible reason to tie 1
l
\\
l 16 these regulations up in knots to require that when there is l
17 a staff hearing, or when there's a hearing on a proposed i
18 action the staff also has to exercise further discretion and 19 seek public comments on a draft environmental assessment.
20 That connection between these two regulations is entirely I
)
21 lacking, and ECO points to no legal authority to provide i
22 that connection.
23 JUDGE BECHHOEFER:
Well, could we interpret the 24 positions of both the licensee and the staff, actually, as 25 creating artificial separate boxes for various things in i
1 O
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478 1
order to avoid a common sense obligation?
()
2 MR. LEWIS:
No, sir.
I don't believe that there 3
is a common sense obligation because I don't see any basis 4
for requiring a draft environmental assessment and public 5
comments when there's a hearing.
The hearing provides the 1
6 forum for the parties to provide their comments; you don't
-l 7
need a separate opportunity.
Also, we're not creating an 8
artificial distinction.
9 First, there are two separate regulations; and, 10 second, there are distinct. terms.
When one. construes 11 regulations or statutes, one should give meaning to all the 1
)
l l
12 terms.
If there is a distinct term'used in one regulation l
13 and a different term used in another, one should provide --
)
i 14 one should imply that'they_have different meaning.
That's a i
O 15 normal maxim of statutory construction.
16 JUDGE BECHHOEFER:
Does there happen.to be 17 anything in the " Statement of Considerations" which would 18 differentiate between those terms of discuss those' terms?
19 MR. LEWIS:
Does there have tc be?
~
20 JUDGE BECHHOEFER:
Or is there?
Is there?
l 21 MR. LEWIS:
No.
I'm not aware of any, i
l 22 MS. CLARK:
I would point out, though, that.the-23 reading that ECO would give to these regulations, I believe, 24 is inconsistent with what the Commission stated regarding.
i 25 the staff's discretion.
If what Mr. McGranery says is true ANN RILEY & ASSOCIATES, LTD.
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479 1
every time a hearing is held the staff would be required to 2
prepare a draft.
Now, this would be totally inconsistent 3
with the Commission's statement that this within the NRC 4
staff's discretion.
Furthermore, the Commission has set 5
forth --
6 JUDGE BECHHOEFER:
Well --
l 7
MS. CLARK:
-- but the Commission has also set i
I 8
forth specific circumstances that should be considered in 9
whether to prepare a draft.
Now, they didn't say that one 10 of those circumstances was whether a hearing would be held.
l 11 It seems to me that if a hearing would automatically trigger 12 a draft, it would certainly be listed as one of the i
13 circumstances.
l l
l()
14 So I'really believe that when these regulations
{
l 15 are looked at in context, his reading is really inconsistent
)
16 with any, you know, realistic -- and also, the staff follows i
17 the same procedure on final environmental impact statements.
l i
18 We go to hearings-on those matters; we prepare final 19 findings which then are subject to modification through a 20 hearing.
l 21 JUDGE COLE:
But I believe in every case that you j
f 22 issue an FES it'is also preceded by a DES, a " draft 1
i i
23 environmental statement."
j 24 MS. CLARK:
Yes.
25 MR. REIS:
That's true, your Honor.
But the ANN RILEY & ASSOCIATES, LTD.
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480 1
important point is whether what comes before this Board is 2
the final or the draft.
His argument was, " Hey, it must be 3
a draft because it's before this Board and, therefore, it 4
cannot be a final."
Well, that isn't so at all in the NRC 5
process because can analogize by final by the environmental 6
impact statements.
It is always the final that is before 7
the Board and the Board rules on, and it is the Board that 8
changes the final and not the draft.
9 JUDGE BECHHOEFER:
I assume that staff is t
10 conceding that we have the authority to look at the final 11 and make changes if warranted by the record?
12 MR. REIS:
Of course.
13 MR. McGRANERY:
If I.may clarify here.
I'm not 14 sure what the noun is that the Chairman intended to modify O_
15 by the final. "
The final what, if 1 may ask?
.16 JUDGE COLE:
We were talking about final 17 environmental statements.
18 JUDGE BECHHOEFER:
Well, or assessments.
I was 19 talking about the final assessment in my question.
20 MR. McGRANERY.:
There's a problem there.
I 21 totally agree with the station that when a decision has been 22 made to go the EIS route, what is presented to'the panel is 23 the FEIS, which of course incorporates;the comments that 24 have been obtained during the comment period on.the DEIS.
25 Here, where you're going -- where'the staff is O
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481 1
attempting to go the FONSI route, the regulations do not say 2
explicitly that it's the panel not the staff that issues any 3
final FONSI.
That's in 51. 34 (b).
So you don't have a final 4
FONSI before you; you have only a draft or proposed before 5
you.
6 What I'm saying is that this system of regulations 7
assures that the panel will have the same benefit of public l
8 comment on the draft FONSI.when that route is pursued'as the 9
panel has when the EIS route is pursued.
So there is 1
10 perfect parallel there, not an inconsistency.
11 I would also point out that even'if the staff did l
l 12 have the power to choose between a draft or a final FONSI, l
13 which power 51.34(b) takes away,lthat there would be a good l
14 basis for them to have prepared a draft in this case because l
l 15 under 51.33 (b) (1) (ii) this case can truly be described as a l
16 proposed action without precedent.
17 That is, a reactor that is being terminated or 18 decommissioned in the. middle of its useful life, pursuant to 19 the safe-store mode including the construction and proposed 20 operation of a new design of independent spent fuel storage 21 facility on site.
This is definitely a case without 22 precedent.
23 MR. LEWIS:
Your Honor, that argument is untimely.
24 If ECO wanted to niake out a basis for abuse of discretion, 25 it should have included those facts-and assertions in its l
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1 original contention.
In addition, the idea that the 2
decommissioning of Rancho Seco is an action without 3
precedent is also without basis.
There has been Fort St.
l 4
Vrain, there has been Shoreham, there has been Indian Point 5
One, there has been Dresden One, there has been, there has 6
been Humboldt, there has been La Crosse.
I don't know how i
7 many other reactors that are shut down and shut down before 8
their full 40-year life.
9 MR. McGRANERY:
I'm sorry.
I think counsel l
10 misunderstood me.
First of all, as to the discretion 11 argument, I was responding to the Chairman's original 12 questir-t l
13 Secondly, what I said precisely was that.this 14 action is without precedent not only because it's being shut 15 down before the end of its useful life, but also because the i
16 mode of decommissioning chosen including especially the-f 17 unique and first-of-a-kind independent spent. fuel storage 18 facility that is going to be on site.
19 It is the synergism of all of these elements that i
20 makes this first of a kind.
It is not like Shoreham which f
21 was immediately torn down.
It is a distinct action and a 22 regrettable one, but that is a separate point.
l 23 JUDGE BECHHOEFER:
Let me ask a completely 24 separate question.
Was not at least the issuance ~of the i
25 environmental assessment, if not the assessment-itself, ANN RILEY & ASSOCIATES, LTD.
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I 483 l
1 published in the " Federal Register," at least. notice of it?
2 I
i 3
The Commission normally publishes notices that l
4 have been issued.
There is always, at the beginning of 5
these notices that come out about every two weeks-there is j
6 always, a general statement.
I mean, a person who wishes to 7
comment may do so.
I don't know that it was the case here 8
or not, i
9 Do you know if.that was done?
J 10 MR. LEWIS:
My recollection is that therenis a i
11
" Federal Register" notice, that the notice is a notice of 12 issAance of the environmental assessment,and finding of-no 13 significant impact.
The staff's June 16, 1993 letter i
14 transmitting the environmental assessment and FONSI also has 15 a copy of the notice that was sent to.the " Federal l
16 Register."
17 JUDGE BECHHOEFER:
Normally, these notices --
18 that's why I was asking because I was reading the bottom 19 paragraph of the transmittal letter.
When the. staff l
20 publishes these, it's my experience, and I haven't looked 21 specifically on this one, but there is usually a statement -
22
- they are usually published as a bunch of statements'of no 23 significant impact and there is a predecessor' statement l
24 saying anybody who wishes to comment may do so.
1 l
i 25 MR. LEWIS:
I believe there is a-" Federal l
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484 1
Register" notice.
I'm looking quickly to see if I have a O
2 citation.
3 MR. McGRANERY:
Mr. Chairman, I've found it.
It 4
is in the package transmitted to Mr. Shetler by NRC letter
}
i 5
of June 16, and it is between the safety evaluation and the 6
EA.
I will note that that notice does two things:
One, it l
7 again very artfully avoids the issue of whether this is a l
8 draft or a final.
9 Secondly, it does not allow for any comments, in 10 violation of 51.33 (c) (3).
The fact that it's not marked 11
" draft" is in violation of (c) (1).
The only requirement 12 that it meets is (c) (4).
That is, that there is a' notice 13 published, but there is no opportunity for comment much less I
14 an opportunity of 30 days or more.
{
15 JUDGE BECHHOEFER:
Do you know what date that was i
16 published?
17 MR. McGRANERY:
I don't, sir, but I would be happy l
18 to provide that information to the panel.
J I
19 JUDGE BECHROEFER:
No, I'll take a look.
When we 20 take a break, I'll go downstairs.and find it.
21 MR. McGRANERY:
It would appear that it would have 22
.been published in.the later. half of June.
1 23 JUDGE BECHHOEFER:
All right.
No, I can find it.
24 JUDGE COLE:
How do you know it was in the 1
25
" Federal Register"?
IO l
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I i
i 485 1
JUDGE BECHHOEFER:
It says so, the June 16th O
i i
2 letter.
i 3
MR. McGRANERY:
This is the normal form that the 4
staff uses.
5 JUDGE BECHHOEFER:
The cover sheet, the bottom 6
paragraph.
7 JUDGE COLE:
I see.
It just says, "It has been 8
forwarded to the ' Federal Register.'"
9 JUDGE BECHHOEFER:
Yes.
Well, I assume that that 10 means it was printed or noticed.
11 MR. McGRANERY:
If I may add just one further 12 element here in response to the Chairman's question on 13 discretion.
That is, that if the panel should agree that
(
i f ('
14 even if the staff were allowed to issue a. final in this case em 15
-- that is, if it were not barred by 51.34 (b) -- 51. 33 (b) (1) 1 16 would upon a determination that this particular licensing 17 action is without precedent shift the burden to the staff to 18 explain why it would not prepare a draft, since (b) states 19 that when the action is without precedent a draft finding 20 may be prepared and no circumstances will ordinarily include 21 actions without precedent.
22 So that at that point the staff would have t'o 23 explain.
But I don't think that we ever reach that issue 24 because the network of regulations forbids-the staff to 25 issue a final under these circumstances.
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MS. CLARK:
Your Honor, I have to object to 2
Mr. McGranery's attempt at this point to formulate a 3
contention on abuse of discretion here The fact is he has 1
4 not raised any of these contentions, any of these statements 5
in his list of contentions.
He has nowhere referenced 6
- 51. 33 (b) (1), and his statements here about this'being 7
without precedent is completely unsupported.
8 JUDGE BECHHOEFER:
Well, do you think his 9
reference to 51.119 is. equivalent?
He has referred -- it's l
10 paragraph two, really, that we've been talking about rather-11 than one.
But paragraph two, the reference to 51.119 is a 12 reference and it does talk about final and draft.
13 MS, COLE:
Yes.
But I don't believe he has ever l
14 raised any issue that the staff abused its discietion in l
l 15 deciding to prepare a final, and he certainly has never j
16 addressed the fact that this abuse of discretion supposedly 17 is premised upon f ailure to consider 51.33 (b) (1).
18 Furthermore, he has made no showing here that this 19 is, in fact, without precedent.
In fact, it's our 20 understanding that there is a spent. fuel facility on site at 21 Fort St. Vrain.
Of course, we are unable at-this time, 22 we're just not prepared, to address this question because it 23 was never raised by EC7.
24
' JUDGE BECHHOEFER:
Well, there is a reference to 25
- 51. 3 3 (b) and there is another reference to 51.34 (b), and ANN RILEY & ASSOCIATES, LTD.
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487 1
those are paragraphs three and four, as well as the several 2
references to 119.
If we consider these first five 3
together, which I think we almost have to, he has at least 4
gotten the references in there.
5 MS. CLARK:
I believe that his premise here in 6
these bases is that the staff does not-have any discretion 7
whatsoever and that he error is that we filed a draft at all l
8 because we were not permitted to do so because a hearing has 9
been held.
I don't believe he has raised the issue of i
10 whether the staff's determination to prepare a draft 11 considered -- was an abuse of discretion, given the j
12 circumstances.
13 JUDGE BECHHOEFER:
The determination not to 14 prepare it a draft.
15 MS. CLARK:
Right, right, i
16 That's the issue that I believe has not been 17 raised in his contentions and he is attempting to: raise now 18 on the basis of assertions about this being unique, which i
19 are not in his pleadings, and the staff does not believe are 20 correct and the staff has not been on notice of or had any 21 other opportunity to dispute.
22 MR. McGRANERY:
If the panel please, I refer to 23 item three, which read:
"The staff document violates 10 24 CFR, Section 51.33 (b) because it does not consider whether 25 circumstances exist requiring the publication of'a draft ANN RILEY & ASSOCIATES, LTD.
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l 1
FONSI."
l 2
That is the point that the Chairman raised first 3
and that I have been addressing.
As to the staff's 4
reference to Fort St. Vrain, I would point out that that is 5
a reactor of an entirely different type, a gas coolant S
reactor as opposed to a PWR, and a much smaller reactor at 7
that.
So again, I would distinguish that-case.
The fuel in 8
question there, as we all know, is of a significantly 9
different type.
10 MS. CLARK:
Well, as I said, the staff is not 11 prepared to say whether these distinctions are really 12 significant or whether they-make any difference or not, 13 because we have not been put on notice'that this was an 14 issue to be raised in this proceeding.
15 MR. McGRANERY:
I think that item three put the 16 staff on notice that ECO found the staff document inadequate 17 because it does not consider whether the circumstances exist 18 requiring the publication of a draft FONSI, citing 19 particularly to the circumstances required to.be considered 20 by 51. 33 (b).
That, I think, is a fair notice.
21 MR. CLARK:
But the basis here doesn't provide any i
22 particular circumstance that you think the staff should.have i
23 considered that wasn't considered.
I mean,. this bare 24
. statement just is not adequate in light of the Commission's 25 pleading requirements.
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489
)
1 MR. McGRANERY:
Again, we are in the situation 2
where the staff presents the intervenor with a total vacuum 3
and then criticizes the intervenor because it identifies the 4
vacuum, rather than filling it for the staff.
5 MS. CLARK:
Well, I think what we actually have is 6
a situation where ECO is attempting-to impose requirements 7
on the staff that are not based in the regulations.
The 8
fact that the regulations contain circumstances that may be l
9 considered by the staff does not in any way require the 10 staff to place -- I don't know -- to place these 11 circumstances in our statements.
ECO has provided no basis d
(
12 for concluding -- for even inquiring as to whether the staff 1
13 has adequately considered these circumstances.
t 14 MR. McGRANERY:
I would, respectfully, disagree.
'I 1
15 But ECO's primary contention here is that we need not reach I
(
16 this particular issue, since the structure of the 17 regulations forbids other than a draft finding here.
The 18 staff's effort to avoid this issue is further demonstrated I
19 by its violation of 51.119 as identified in our item five, 20 where again the regulations states in mandatory terms that 21 the finding will be identified as a draft or final finding.
22 23 Again, this avoids the possible confusion or 24 alleged by use of the word " proposed" in the other 25 regulation; " proposed" is simply a synonym for " draft."
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490 1
Here, the rules require that the finding be identified 2
either as a draft or a final; the staff did neither.
We 3
know according to the regulations that it could not issue a 4
final in these circumstances, so it would under the 5
regulations have been required to identify it as a draft, 6
which again gets us back to 51.34 -- I mean, 51.33, excuse 7
me, (c).
8 JUDGE.BECHHOEFER:
Now, I'd like to turn to one 9
that we haven't discussed at all, and that's number one.
Is-10 there any -- the requirement apparently the way I read it, l
11 51.30(a) requires that they consult -
that they_ identify i
l 12 the agencies with whom they consulted.
But I don't see any l
l 13 requirement that they list.the -- or I shouldn't say list -
i 14
- describe the advice given.
I'd like your comments on
,O 15 that.
i l
16 MR. McGRANERY:
It's identified in their Item 5, 17 where, again, the regulation states, in mandatory terms, t
1 18 that the finding will be identified as a draft or final 19 finding.
20 Again, this avoids the possible confusion alleged 21 by use of the word " proposed" in the other regulation.
l 22 Proposed is simply a synonym for draft.
Here the rules 23 require that the finding be ident'.fied either as a draft or 24 a final The' staff did neither.
25 We know, according to the regulations, that it ANN RILEY & ASSOCIATES, LTD.
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491 t
1 could not issue a final in these circumstances.
So it-O t
2 would, under the regulations, have been required to identify 3
it as a draft, which, again, gets us back to 51.34 -- I mean 4
51.33, excuse me, (c).
5 JUDGE BECHHOEFER:
Now I'd like'to turn to one 6
that we haven't discussed at all and that's No.
1.
Is there 7
any -- the requirement, apparently, the way I read it, 8
51.30(a) requires that they consult with -- that they 9
identify the agencies with whom they consulted.
10 I don't see any requirement-that they list the --
11 I shouldn't.say list -- describe the advice given.
I'd like 12 your comments on that.
It says a list-of the agencies'and i
13 persons consulted and identification of sources.
It doesn't
(-
14 say anything more than a list of them, which.I believe has i!'
15 been done here.
16 MR. McGRANERY:
I beg your pardon?
j 17 JUDGE BECHHOEFER:
I said as I read the i
18 regulation, it says only that they shall list it and 19 apparently they've done that.
They did that, the part of it 20 that deals with not having to. describe what the advice was.
21 MR. McGRANERY:
I don't believe that one can find 22 adequate as a list -- the particular requirement here is a 23 list of agencies and persons consulted and identification of' 24 sources used.
I don't believe that the staff can be said to 25 have satisfied its obligations when its compliance with this ANN RILEY & ASSOCIATES, LTD.
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requirement is merely " staff consulted with the State of 2
California regarding the environmental impact of the 3
proposed action."
4 JUDGE BECHHOEFER:
Technically, isn't that all 5
that says?
6 MR. McGRANERY:
I think that that would trivialize.
7 this requirement and deny reasonable notice to the panel, 8
the Intervenors and other concerned persons, both as to'the-9 identity of the person or persons or agencies consulted ~and 10 it also denies access to knowledge of the sources used.
11 That is it tells us nothing about what --
12 JUDGE BECHHOEFER:
I have a question of the staff.
13 Is the advice provided by whatever~it was, by the State of l
5 14 California, is that in the public record?
l O
l 15 MS. CLARK:
No, it's not.
We received it orally 16 from the state.
It's not written.
I think what we have j
17 here is a clear challenge to the regulations.
Regardless of l
18 whether ECO thinks this is adequate, that's all the f
I i
l 19 regulations require.
i 20 MR. McGRANERY:
I believe that that is an overly 21 narrow and mechanical reading of the regulations.
The 22 reason -- if one can reflect for a moment on the reason for 23 this sort of.a requirement, it is to give notice'to the 24 panel and to other interested persons, including,.but not 25 limited to any Intervenors, as to the' breadth'and depth of ANN-RILEY & ASSOCIATES, LTD.
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1 the agency's consultation and its good faith in preparing O
2 the evaluation.
)
i 3
When you say that you have consulted with the 4
State of California, one knows that, as a practical matter, 5
that is meaningless, because there is -- certainly the NRC 6
did not stand out in the middle of the state and ask for 7
comments.
They actually dealt with, one would hope, a 8
particular person at a particularly relevant agency.
9 We have no knowledge of what that' person said.
We 10 have no knowledge -- that person could.have disagreed-11 entirely with what they are advising.here and their failure j
12 to disclose that would be material.
i 13 In addition, this idea of a requirement that theyl l
14 provide a list of agencies and persons, the plural clearly.
i 15 implies a good faith obligation to consult with a variety of i
l 16 governmental and non-governmental sources that would have j
17 relevant input on the environmental issues.
18 In this particular case, the agency has long been 19 aware of the clear interest of both the Council on 20 Environmental Quality and the U.S. Department of Energy in 21 this particular proceeding and yet they failed to consult 22 with them or they failed to -- or they consulted and failed 23 to list them.
24 In'either case, that would be a violation of their 25 good faith responsibilities to consult under NEPA.
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r 494 1
MR. LEWIS:
Your Honor, the amount of requirements 2
that ECO is reading into this simple regulation is without 3
precedent.
It's without any factual or at least without any 4
legal support.
5 This is an environmental assessment we're talking 6
about.
That's a concise document that simply provides the 7
basis for the agency's determination that this particu1_ar I
8 action has no significant environmental impact.
This is not 9
an --
10 JUDGE sECHHOEFER:
How do you answer the question j
11 about California might have said " Hey, we disagree 12 completely?"
I'm not saying they did,-but what if they did?
13 Then the staff says "Okay.
Well, so be it.
We'll issue it 14 anyway and we'll say we consulted with you."
i 15 Now, does the public interest -- should the word
\\
16
" list" be read that narrowly so that it's essentially l
I 17 meaningless?
I'm not sure that NEPA contemplates that.
18 MR. LEWIS:
NEPA imposes notice and comment i
19 requirements on major Federal actions significantly 20 affecting the environment.
If the agency makes a 21 determination that an action does not significantly affect i
22 the environment, the consultation and public comment and 23 requirement to publish proposed statements never comes into 24 play, and that's where we are right now.
.25 If the agency consulted -- if the NRC consulted ANN RILEY & ASSOCIATES, LTD.
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with another agency and another agency expressed the opinion 2
that an EIS might be useful, it's still the NRC's call, in 3
the first instance.
If its environmental assessment 4
reflects a hard look and provides sufficient evidence to 5
support its conclusion that this involves no significant 6
impact, it has satisfied its obligations under NEPA and l
7 under the NRC's regulations.
8 JUDGE BECHHOEFER:
How do you know it's a hard 9
look?
10 MR. LEWIS:
You have to judge-the environmental 11 assessment based on its content.
12 JUDGE BECHHOEFER:
Can we judge it if we' don't 13 know -- there may not be any requirement at all that the l
lO 14 consultants be -- but when they say they do, shouldn't they 15 be required to at least say that the agency had no I
16 significant comments or no objection?
l 17 MR. LEWIS:
There's no such --
18 JUDGE BECHHOEFER:
I'm not sure that reading the 19 word " list" is a meaningful term.
20 MR. LEWIS:
I can already submit, Your Honcr, that 21 there is no such requirement.
The environmental assessment 22 is very complete for an environmental assessment.
It's 25 23 pages and it goes through all the major issues and makes i
)
24 findings on that basis, i
25 I also think, again, that it is ECO's obligation ANN RILEY & ASSOCIATES, LTD.
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496 1
to advance a basis to the contrary.
The only --
1 i
2 JUDGE BECHHOEFER:
Now, that one may get advanced.
3 MR. LEWIS:
No.
The only basis they have for
~
4 suggesting that there perhaps should have been further 1
5 consultation or a need to discuss further consultation is 6
their reference to " strong views" expressed by CEO and DOE.
j They don't say what those strong views are.
l 8
I think everybody in this room, though, knows what l
l 9
they are.
They are the initial views that CEQ and DOE l
10 expressed to the Commissioners that resumed operation was an 11 alternative that might have to be looked at The Commission 12 has addressed that in a series of decisions.
13 JUDGE BECHHOEFER:
That's the second part.
I'm l
14 not talking about that right now.
We haven't even discussed l
15 that, but there may be no requirement at all that they 16 consult with other agencies.
17 The question I raise is when they consult and they 18 get an answer, shouldn't some reference to the content of 19 that answer, to show that it's either consistent with the 20 views expressed in the assessment or not, shouldn't that be 21 required?
Isn't the word " list" a meaningless word unless 22 you read in some substance to it, as well?
l 23 MR. LEWIS:
No.
I don't think it's meaningless.
]
24 I think it shows that the -- I don't think that the NRC is 25 required to do any consultation.
O ANN RILEY & ASSOCIATES, LTD.
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1 JUDGE BECHHOEFER:
I would maybe agree-with you.
2 But I think if they do it, maybe they should be held -- if 3
they do it, they may have to at least state-what they did I
4 and state what response they got.
It might be a one-'
5 sentence addition; the State of California was a consultant 6
and offered on objection.
That might well be' sufficient.
l 7
MR. LEWIS:
The licensee would submit that's not'a 8
regulatory requirement.
It's ont in the regulations.
9 Unless ECO can advance a legal or factual' basis showing why i
10 that's necessary, it hasn't announced a proper contention.
11 I think there is some information provided by 12 simply identifying the agencies and' persons with whom the 13 NRC may have consulted.
It shows the scope of their inquiry 14 before they made the determination.
But there is not in the O
15 NRC regulations an explicit requirement or even an implicit l
16 requirement that they do more than identify those agencies I
17 and persons with whom they consulted.
18 There is no requirement that they discuss the 1
l 19 comments, as is done in an EIS.
20 JUDGE BECHHOEFER:
This sounds like some arguments 21 I've heard of before in my case in Calvert Cliffs.
It 22 sounds like exactly the arguments initially made in favor of 23 the staff review at Calvert Cliffs before the Court had its 24 say.
To me, it's comparable.
25 MR. LEWIS:
The very big difference between this ANN RILEY & ASSOCIATES, LTD.
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case and the Calvert Cliffs is there you had a proposed 2
action that significantly affected the environment and that 3
then triggered extensive requirements to consult, to obtain 4
public comment, to take a hard look at a number of issues.
5 Those legal requirements at NEPA are not 6
triggered.
They never get to that point when their agency 7
has determined an action involves no significant impact.
8 MR. McGRANERY:
If I may offer this, counsel for 9
SMUD would give a man a hearing after he's hung.
The idea 10 is the consultation plays a meaningful role only if it is 11 performed before the determination as to whether there is a 12 significant environmental impact, not afterwards, because it 13 is that consultation and the input of views from agencies 14 and persons skilled in other disciplines that is intended to U..
15 aid the agency in understanding whether there is a 16 significant environmental impact.
17 If you have already determined that such an impact 18 exists, then their consultation is of much less significance 19 thereafter; perhaps in evaluating it, but certainly not in 20 helping you make a judgment as to the initial threshold 21 issue, the all important issue of whether the impact is 22 significant.
23 MS. CLARK:
Your Honor, the determination of 24 whether the impact is significant is made by the staff.
The j
f 25 staff does not rely on other agencies or other entities to i
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make our determinations.
We are not under an obligation to 2
consult other agencies, t
3 In some cases, we do and we may or may not -- and 4
+,e will consider their comments, but I don't see any reason 5
to assume that the staff has the responsibility of 6
presenting positions, other positions, in their FONSI.
l 7
The fact is that we decided to prepare a final.
i 8
Therefore, we're not required to request comments.
The fact j
9 that they are listed in here, I don't-see any reason to read 10 that to mean anything more than that..
i 11 Many times the staff will list things in there for t
12 the benefit of people like ECO who, on their own, can go and f
13 contact.the State of California, if they wish to do so, and l
l 14 ask the State of California how they feel about this.
l l
15 I don't see any reason why the staff has to 16 provide this.
J i
17 JUDGE BECHHOEFER:
I can tell-you one thing.
j 18 These are made to benefit the final decision-makers,_which 19 will be, first, us and then the Commission.
Maybe we would 20 like to know if the State of California had adverse 21 comments.
22 We know now that you can phone up the State of 23 California.
My only question was not even that you were 24 required to consult the State of California, but since you 25 did, haven't you got -- shouldn't there be an obligation to ANN RILEY & ASSOCIATES, LTD.
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1 tell people -- tell the decision-makers what you got?
2 Certainly if the Commission asks you, you'd have 3
to tell them.
If the Commission asked the staff, we, 1
I 4
theoretically, could do the same thi: 1 5
MS. CLARK:
Well, I think that the only time when.
6 we would reach that point in the decisionmaking body is if 7
the State of -- for example, if the State of California 8
could -- would have the option of coming in here and saying 9
that their views have not been properly expressed or weren't 10 being considered or they had concerns, the State of 11 California can come in here and grant an action.
12 JUDGE BECHHOEFER:
Would they have to become a 13 party to this proceeding to do that?
j
}
14 MS. CLARK:
Yes.
And they have the option to, if
)
O i
15 they wish to.
The State of California is free to come in j
16 before this Board and express its opinions.
They have that J
17 option.
18 Right now, what we --
19 JUDGE BECHHOEFER:
Therefore, can we, as a matter 20 of law, assume that their comments -- based on what the 21 assessmant says, can we assume that their comments were i
i 22 favorable or no objection or not?
i 23 MS. CLARK:
What I'm saying is that we don't reach 24 that question here.
I don't think the question of whether a
25 the State of California's comments are included is an issue O
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right now.
The only thing that we have had happen is that O.
2 ECO has come in.
3 If ECO has problems with our environmental l
4 assessment, they can raise them now and they can raise them 5
here, but I don't see that any possible comments of the 6
State of California, which ECO doesn't know and couldn't 7
possibly know, can be an issue here.
8 I think the only person that can raise that issue 9
is the state.
10 MR. McGRANERY:
I would offer two further l
11 observations, if I may.
First, counsel has said that the 12 reason that the State of California was listed was so that l
13 people like ECO could contact the State of California and 14 find out what they said and talk to them.
j 15 Well, if you'll excuse me, once again, that 16 doesn't pass the red fa 0 test because there is no 17 meaningful identification.
If you tell me that you have 18 talked to the State of California, where do I go to find out 19 who you dealt with?
It's impossible.
20 Secondly, the list -- the requirement to list 'oes d
21 require more and it does require -- it does imply a broad 22 consultation.
This can be seen two ways; first, from the l
23 language of NEPA itself, which explicitly addresses such 24 consultations, and, secondly, by analogy, as we have done i
25 before, to the EIS process.
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The panel is quite familiar with the typical.
f I
2 process there.
When the draft EIS is prepared -- and 3
sometimes before, but in any event, at the draft stage, it-4 is distributed to a wide variety of Federal and state 5
agencies.
6 JUDGE BECHHOEFER:
I'm not really sure how l
7 relevant that is, though, because those are major Federal 8
actions, once someone has determined that that's what-it is.
9 This is where significantly less stringent procedural i
10 requirements govern and I'm not sure that the agency isn't l
i 11 give some discretion.
12 I'm trying to figure out whether the discretion-i l
13 permits just a list and one name.
That's'the question I'm 14 raising.
15 MR. REIS:
Mr. Chairman --
l L
16 JUDGE BECHHOEFER:
Let Mr. McGranery finish.
l 17 MR. REIS:
Yes.
I was just going to point out-18 that the persons consulted are set forth in the State of
-i 19 California in the cover letter that transmits the i
20 environmental assessment.
It says Radiological Health I
21 Branch, State Department of Health. Services.
l 22 If he had any question of who in the State of 23 California we contacted, it said so right there.
It's in 24 the cc list connected with it.
I don't even know that he 25 contacted them and tried to find out whether it was so,
. ANN RILEY & ASSOCIATES, LTD.
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whether he called anybody else in the State of California to 2
find out.
He has some duties here, too.
It's listed just 3
below Mr. McGranery's name.
It's right there.
4 MR. McGRANERY:
If you'll excuse me, this is 5
getting even worse.
What we're talking about here is.by_
6 squirreling away a particular name on a particular service.
7 list, I'm supposed to find out that that's the person who-8 was consulted.
There are other people listed there in j
9 California, too.
i 10 All that gives me notice of is that you sent these-11 people copies of this, not that you consulted with.them.
12 Certainly this does not give notice to anybody who would be-
'i 13 relying on the notice in the Federal Register or anybody who l
14 would read simply the environmental assessment.
l 15 I-don't believe that this-fairly addresses the j
l l
16 issue.
A copy is sent here to FERC, also, but there is no 17 representetion that the NRC consulted with FERC.
.I consider 18 that meaningless.
19 JUDGE BECHHOEFER:
Is there anything further on 20 the first five of these issues or have we sort of covered l
l 21 them all?
r 22 MR. LEWIS:
No, Your Honor, not from the licensee.
23 MS. CLARK:
Nothing further from staff.
I l
24 JUDGE BECHHOEFER:
I think we'll take a break I
25 here.
I want to go downstairs and look up to see what that l
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1 Federal Register notice said.
So let's make it somewhere 1
2 between ten and.15 minutes, but I don't know how long it_
i 3
will take me to find it.
I know where the Federal Registers 4
are.
l 5
[ Recess.]
[
6 JUDGE BECHHOEFER:
Back on the record.
During the l
7 break, the Board located the Federal Register notice in' l
8 question.
It appears at 58 Federal Register Page 34065, r
i 9
published on June 23.
10 It merely states that the assessment, etcetera, l
]
11 had been issued.
It does not ask for comments.
This is 12 what the record reflects, in any event.
j 13 MR. McGRANERY:
Mr. Chairman, if I may, it also t
14 does not reflect whether it's a draft or a final finding and l
O 15 that independently violates 51.119, as we point out'in our-l 16 pleading.
l 17 In clarification, I would, again, mention the fact i
18 that 51.119 does not give the option of a draft or proposed l
l 19 or final finding.
It's only draft or final, reenforcing the 20 ECO position that the use of the word " proposed" in 51.34 21 was used as a synonym, not as a third type of finding that 22 could be issued.
l 23 JUDGE BECHHOEFER:
Well, in the absence of a 24 request for comments, doesn't this almost -- it doesn't 25 explicitly state it, but doesn't this mean it's final, 1
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l 505 1
within the reasonable meaning of that, that it's a final?
2 MR. McGRANERY:
But 51. 34 (b) teaches us that it 3
can't be a final because --
4 JUDGE BECHHOEFER:
It's final absent Board review.
5 That's a little bit different.
6 MR. McGRANERY:
No.
It says the only one that can 7
issue a final -- this is the last sentence -- the only 8
entity that can issue a final is the Board.
J 9
JUDGE BECHHOEFER:
No.
The Board doesn't issue 10 statements at all.
l l
11 MR. McGRANERY:
Excuse me.
12 JUDGE BECHHOEFER:
The' Board has no authority to I
13 issue a statement.
The Board will either approve a l
14 statement or modify it, but we don't issue it.
l-(:)
15 MR. McGRANERY:
If I may read from 51.34 (b), the t
l 16 last sentence.
"In such cases, the presiding officer, the i
17 Atomic Safety and Licensing Appeal Board, or the Commission,.
18 acting as a collegial body, as appropriate, will issue the 19 final finding of no significant impact."
20 JUDGE BECHHOEFER:
We certainly approve it..
I'm 21 not sure that, given case law, we actually issue it.
Issue 22 it means distribute it and we don't do that.
We have 23 authority, however, to modify it and to determine what 24 should go into it.
25 MR. McGRANERY:
Issue here is in the sense of I
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1 issue a decision, which the Board does all the time.
We l
2 aren't talking about the ministerial acts involved in the i
3 issuance of a decision, but rather the exercise of I
4 discretion, t
5
- 51. 34 (b) says that when we do have-a hearing, 6
which is the case here, that the only thing that the staff 7
can prepare is what is described there as a proposed 8
finding.
It then goes to the Board where it is subject to j
f 9
modification as a result of review and decision, as 10 appropriate, to the nature and scope of the proceeding, and 11 then the Board is the only one that has the authority to f
l 12 issue the final finding.
13 But in any case, in issuing what it did issue,'the i
14 staff, and, I would offer, not by accident,~ failed to l
15 characterize it as either a draft or a final finding, in-16 violation of its obligation pursuant to 51.119 (a).
l l
17 And since this is not a final finding, but a l
l 18 draft, then we get into the staff's obligations pursuant'to 19
- 51. 33 (c), which the panel has determined from the Federal l
20 Register was also violated because this is not marked draft 21 and it is not accompanied by a request for comments on the l
i l
22 proposed action and on the draft finding within 30 days or 23 such longer period as may be specified in the notice of the i
l 24 draft finding.
-l 25 The only compliance here is that it was published l
l ANN RILEY & ASSOCIATES, LTD.
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1 in the Federal Register.
And, of course, as I believe we O
2 said earlier, the remedy that ECO would seek here is a 3
directive from the panel to the staff to comply with its 4
obligations pursuant to 51.33 (c) and then make the results j
5 of the comments received available to the panel and to the 6
parties so that they can be considered in this proceeding.
7 JUDGE BECHHOEFER:
Are there any further comments i
l 8
on the procedural questions?
If not, we'll go on to six.
i 9
MR. LEWIS:
No, Your Honor.
10 MR. REIS:
The staff has no further-comment.
This i
11 practice is parallel to what is done in an environmental.
12 impact statement, as well, in a final impact statement.
l i
l 13 It's issued by the staff, subject to modification or j
t a
I 14 approval by the Board.
15 MR. McGRANERY:
And ECO would recognize that that l
l l
16 parallel requires notice of the opportunity to file comments 17 and the inclusion of those comments in the record of'this I
i l
18 proceeding.
l 19 JUDGE BECHHOEFER:
I'm not sure that necessarily 20 follows.
We'll decide that.
That's the issue before us.
21 That's your position and I know staff's and licensee's 22 position is somewhat different.
We'll have to review it and i
23 decide which is which.
24 Let's go on to six, which talks about postulated 25 accidents.
On No.
6, you mention all non-radiological O.
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508 1
accidents, presumably.
Is your contention that none of them 2
were considered or that more should have been considered?
3 If it's more, you haven't listed which ones -- which types-4 should have been considered.
5 MR. McGRANERY:
No.
In clarification, I will t
6 state that ECO intended that to read it does not consider 7
any non-radiological accidents.
There was~not more -- we l
8 did not insert a modifier there but the intent.was it 9
considers none.
10 The staff response refers only to radiological 11 accidents and in the GEIS, although it reaches beyond that 12 to cite another 1978 document which is, I would say, going 1
13 one level too far with a stale document That is the GEIS.
l 14 itself did not consider non-radiological accidents.
15 JUDGE BECHHOEFER:
I recognize that.
The earlier 16 environmental statement did.
It's my understanding that i
17 this is put out 3s a supplement to the earlier statement.
l 18 If there are no changes, there would be no discussion.
19 MR. McGRANERY:
First off, NUREG-CR-0130 is not a i
20 NEPA document.
Second of all, what we have relied on here, i
21 when the staff has not discussed something, is the GEIS on 22 decommissioning.
There is no discussion there of non-23 radiological accidents, either.
24 JUDGE BECHHOEFER:
Right.
But there is in the 25 earlier volume, which I would assume continues, unless i
l O
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modified.
2 MR. McGRANERY:
The earlier volume was relied upon 3
by the GEIS only for its radiological findings.
4 JUDGE BECHHOEFER:
I'm not talking about the GEIS.
5 I'm talking about the earlier impact statement.
6 MR. REIS:
Your Honor, you're referring'to the i
7 impact statement on licensing and --
8 JUDGE BECHHOEFER:
That's correct.
9 MR. REIS:
Is that what you're referring to?
10 JUDGE BECHHOEFER:
Yes.
11 MR. REIS:
Which is talked about-in 51.95(b).
i 12 JUDGE BECHHOEFER:
Yes.
13 MR. REIS:
Thank you.
14 MR. McGRANERY:
I would refer the panel to the 15 staff and the licensee responses to Item 6'and I would note 16 that no such argument of reliance on an adequate discussion 17 of the non-radiological accidents in decommissioning is i
18 made.
19 They do not point to any part of the previous 20 final EIS on Rancho Seco that discusses non-radiological 21 accidents related to the decommissioning process.
l 22 JUDGE BECHHOEFER:
Well, this is basically the f
23 staff comment, which is the basis for the question I asked 24 you.
Why don't you consider the earlier ones as unchanged 1
25 unless the staff modified it or supplemented it?
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MR. McGRANERY:
Let me try just one more time on 2
this.
Neither the staff nor the licensee has argued that 3
non-radiological accidents, much less non-radiological 4
accidents relevant to deconmissioning, much less relevant to 5
this form of decommissioning, were addressed in the earlier 6
FEIS on Rancho Seco.
No one argues that.
7 JUDGE BECHHOEFER:
I thought the staff has argued 8
it.
9 MR. McGRANERY:
No.
i 10 JUDGE BECHHOEFER:
And they've always supplemented 11 it where there are differences.
12 MR. McGRANERY:
No.
What the staff has-argued, 13 and I am referring here to the staff response at Pages 18 14 and 19, what the staff has argued is that non-radiological 15 accidents associated with' decommissioning were treated in 16 NUREG-CR-0130 at particular sections.
That was a document 17 that was produced in 1978.and would be stale now, in any
]
18 event.
It is a non-environmental document.
19 And they point to that only because, to some 20 extent, the GEIS on decommissioning relied on that 21 particular NUREG, but what they failed to point out is it 22 relied on that NUREG only for its radiological-related l
23 analyses and costs related to the radiological side of 24 decommissioning.
25 The GEIS did not rely on that' document for any (f
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1 511 1
discussion of non-radiological accidents.
i 2
MS. CLARK:
The staff would take issue with this.
3 The reason that we're not talking about a prior EIS on 4
Rancho Seco is because this has been treated generically.
5 The GEIS, the generic environmental impact _F'.dtement, does, f
6 in fact, rely on the NUREG that we are re. erring to, CR-7 0130.
In fact, in the staff's environmental assessment, l
8 under our evaluation for postulated accidents, the_ staff j
9 concludes that the accidents postulated for safe store are 10 bounded by the accidents postulated in NUREG-CR-0130.
11 So we'have it not only in the GEIS, but we-have it l
12 right there in our. environmental assessment.
So if ECO 13 wants to challenge our basis for this, ECO must go to that 14 NUREG and make some kind of argument that, for some reason, 15 at Rancho Seco, there's some accident that could happen that.
16 was not considered by the staff previously.
l 17 It's clear from our characterization of this that 18 this is a supplement to prior staff evaluations and, t
i' 19 therefore, ECO has an obligation to obtain our prior 20 evaluations and formulate a contention which take those into 21 account.
22 MR. LEWIS:
May I add, Your Honor, that the 23 licensee's environmental report also considered non-24 radiological accidents by reviewing those accident 25 scenarios, evaluating NUREG-CR-0130 and determining that the ANN RILEY & ASSOCIATES, LTD.
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i 512 l
l' accident potential for Rancho Seco was within the NUREG-CR-3 2
0130 considerations.
i 3
3 NUREG-CR-0130 looked at a number of different l
l 4
' types of non-radiological accidents and.in each case found l
5
.them insignificant.
The licensee, when it performed its 6
environmental report, looked at that evaluation and 7
determined we were in the same bounds.
8 We felt that was appropriate, in particular, I
i I
9 because this NUREG-CR-0130, which was a study performed by i
1 l
l 10 Battelle, commissioned for the NRC to support its 11 decommissioning rulemaking, formed the basis for the GEIS.
12 That was in our environmental report.
l 13 If Eco had some question concerning evaluation of l
14 non-radiological accidents, it should have challenged this
{
15 issue when the environmental report was issued.
There was 16 no new information, no new evidence, no new data or I
17 conclusion that now justified this late-filed contention, j
18 MR. McGRANERY:
I would offer a couple of points
~
19 here.
First, we are not discussing the adequacy of the I
20 environmental report.
We are discussing the adequacy of the 21 staff document, which is the critical document.
22 I would point out that there is no allegation by 23 staff or licensee that there is any discussion in there or 24 in the GEIS of non-radiological accidents related to l
25 decommissicaing.
None.
The accidents that staff counsel i
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referred to as being bounded are radiological -- are i
i O
2 accidents with radiological consequences.
3 There are none of the accidents related to non-
-l 4
radiological causes, such as construction or, in this case, j
i 5
destruction and none of the other types of industrial l
6 accidents that are going to be occasioned by the activities I
7 here, including off-site accidents that are going to result
\\
8 from these large vehicles traversing.the local roads.
9 There are no related accidents that are discussed l
10 here, other than those -- other than~in terms of 11 radiological consequences.
12 MR. LEWIS:
Your Honor, I would refer the Board to 13 our pleadings on Page 23;-in particular, Note 15. 'There we 14 provide the citation to the portion of the ER where we
.O' 15 consider non-radiological accidents by determining the 16 bounds of NUREG-CR-0130.
17 In Footnote 15, we spell out the non-radiological i
i 18 accidents that were, indeed, examined in NUREG-CR-0130.
19 MS. CLARK:
Furthermore, the staff would like to 20 pcint out that the Commission's regulations specifically j
21 provide that Intervenors shall file their contentions based 22 on the applicant's environmental report.
23 ECO has no reason to await the issuance of the 24 staff report to file his contention.
The matters spelled 25 out here were evaluated in SMUD's environmental report and ANN RILEY & ASSOCIATES, LTD.
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if ECO had a challenge to that, it should have filed it on-h 2
the basis of that report.
3 MR. McGRANERY:
We're.not challenging --
i i
4 JUDGE BECHHOEFER:
I'm not sure it didn't, by the j
5 way.
6 MS. CLARK:
I'm sorry?
a 7
JUDGE BECHHOEFER:
That's the point I raised 8
before we closed last night.
I'm not sure that they didn't 9
raise some of these points at that time.
10 MR. McGRANERY:
But in any event, the document on 11 which we're focusing now is the staff's work.
And insofar
-I 12 as the applicant's discussion of this issue may be deemed 13 adequate, which we would question, but: the f act that all t
14 discussion is absent from the staff's work brings us 15 precisely within the exception in the rules for filing as to.
16 issues under NEPA after the issuance of the NRC 17 environmental document.
18 That is we can file with respect to any aspects 19 that " differ significantly" from the data or conclusions of 20 the applicant's document.
I would offer that even if the 21 applicant's discussion of this issue in its environmental 22 document is found adequate, the total absence of any 23 discussion in the staff's document constitutes a significant 24 difference, and we are pointing to that lack.
l 25 MS. CLARK:
Your Honor, I would just like to point ANN RILEY & ASSOCIATES, LTD.
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out that the staff's discussion is very clearly set forth in 2
an EA to be premised on the NUREG-CR-0130.
That ia a staff 3
document.
That is a document that the staff has prepared j
4 that contains the evaluation of these non-radiological-5 accidents.
6 Now, evidently Mr. McGranery has not taken the 7
time to look at this document, but_it is available to him 8
and has been available for years.
That is where the staff's 9
discussion is.
10 MR. McGRANERY:
Without laboring this but'one 11 sentence further, I believe that the panel will see that the 12 reliance or reference to the NUREG-CR-0130 is strictly in 13 the context of radiological consequences, not the non-14 radiological.
O 15 MS. CLARK:
As one additional point, I would also 16 like to point out that Mr. McGranery is required under the 17 Commission's pleading requirements to set forth some basis 18 and, by that, he would have to at least state one accident 19 that should have been considered, but wasn't.
l 20 It's not enough for him simply to state that the l
21 staff should consider more things or should put more in.
He-22 has to provide some example or some basis to inquire 23 further.
24 MR. McGRANERY:
I believe that we have met that.
1 25 JUDGE BECHHOEFER:
Have you named any particular i
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accident?
(>
2 MR. McGRANERY:
Well, we have pointed to a whole 3
class.
That is there is no discussion of any non-4 radiological accident.
And just this afternoon, as 5
examples, I mentioned on-site construction or, in this-case, l
6 destruction accidents that are endemic to any large project 7
and I mentioned off-site road accidents that will-result 8
from the very large trucks transporting the destroyed
)
i 9
elements-of the facility and the spent fuel.
Those are two 10 examples.
11 MR. REIS:
Mr. Chairman, if I can be heard on l
l 12 that.
We don't have any basis to think that is significant 13 at all here and there is no basis except Mr. McGranery's say 14 so that there is any significance to that.from an i
l d
15 environmental point of view, that those are large or 16 significant or that they are meaningful or that they were l
17 any more or less than what was considered in the EIS on 18 construction of the plant, where it was realized that the l
l 19 plant would someday not operate.
l 20 Whether it not operate now or in the future, we l
l 21 don't know that this is of any significance.
Let me also l
22 point out that just pointing and saying accidents, non-i 23 radiological accidents, is very like what the Supreme Court 24 dealt with in the Vermont Yankee case, where the Intervenor 25 tried to say " Hey, you have to consider alternatives."
And ANN RILEY & A6SOCIATES, LTD.
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)
O.
1 the Court said that doesn't require the Commission to j
i 2
inquire any further.
y 1
3 Well, it's the same thing.
Hey, you have to 4
consider-non-radiological accidents without specifying, in 5
the document where he is supposed to specify it, those 6
accidents.
It's the same thing as in the Vermont Yankee 7
case and there is no basis for the staff to inquire further 1
8 when somebody says, hey, you ought to have considered i
9 something or other in the environmental statement.
)
i 10 He has to say -- show why they should have been 1
\\
11 considered and at least give a basis-for going forward, the I
12 same thing as with the alternatives.
If somebody says there l
13 is an alternative of wind power generation of energy or i
14 something, they have to say that and spell out what-
, g-)
D 15 alternative the staff fails to consider.
16 It's the same thing here with accidents.
It's 1
17 parallel exactly to the Vermont Yankee case in the Supreme 18 Court.
19 MR. McGRANERY:
I would offer.that my memory of l
20 that decision is slightly different.
I think that the point 21 that the Intervenors there were trying to make is that more 22 alternatives should be considered and the Court said that l
23 then they did have an obligation to specify.
They could not 24 just vaguely wave their hand and say more.
25 This is a much different matter.
This is as if ANN RILEY & ASSOCIATES, LTD.
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the -- to strike the parallel with that case, as if the l
2 Commission had simply refused to perform its obligation to 1
3 consider any alternatives.
Here they have refused to j
4 consider any non-radiological accidents.
5 MS. CLARK:
Once again, I feel I have to-take l
6 issue with that statement.
The Commission has considered
]
7 non-radiological accidents.
We've gone through this many 8
times and the statement of where we have done so is in the 9
EA.
10 MR. McGRANERY:
Could counsel point me to where in t
11 the EA?
12 MS. CLARK:
Yes.
It is on Page 21, in which the 13 staff makes the statement, in the first paragraph, "The 14 accidents postulated for safe store are bounded by the 15 accidents postulated in.NUREG-CR-0130, which is also a 16 reference to this. document, which form the basis of NUREG-i 17 0586."
18 MR. McGRANERY:
I believe that what -- that is the i
19 last sentence of a three-sentence paragraph.
The first two i
20 sentences read "The release of radioactive materials into 21 the environment and the resulting public radiation exposure 22 are the primary impacts of a decommissioning-related 23 accident.
The radionuclide inventory at RSNGS is less than 24 the radionuclide inventory at the referenced PWR evaluated 25 in NUREG-CR-0130."
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519-1 And then the sentence that counsel read, "The O
2 accidents postulated for safe store at RSNGS are bounded by l
3 the accidents postulated in NUREG-CR-0130,-which form the l
4 basis for NUREG-0586."
That's precisely what I've been 5
.saying.
f 6
This was only evaluated in the context of
]
7 radiation-related accidents.
It does not-address any of.the J
B non-radiation-related accidents.
I 9
MR. REIS:
Your Honor, even if he was correct in 10 that statement, which I dispute, there is no question that j
11 the regulations say in 51.95(b) that in connection with an f
12 amendment to an operating license authorizing l
13-decommissioning, the staff will prepare a supplemental l
14 impact statement to update the prior environmental review, i
15 which is the review done at the time --
l t
1 16 JUDGE BECHHOEFER:
That's the question I raised.
I 17 MR. REIS:
Yes.
At the time of licensing.
As l
i 18 stated in 50.53 concerning the applicant's supplemental l
i 19 report, the supplement is to reflect new information or l
20 significant environmental changes.
21 He hasn't said one iota.
I don't see where there 22 is any construction accident that is outside.the scope of 23 construction accidents -- or decommissioning accidents that 24 are outside the scope of construction accidents.
25 I don't see where the truck transportation of l
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things off the site is any different than the truck 2
transportation of matters on the site.
I don't see where 3
the original environmental assessment impact statement did 4
not consider that the plant would someday not operate and 5
that there would be accidents or that-there might be 6
accidents at that time.
7 And if they were significant,.it would have been 8
mentioned there and he has to show that it wasn't mentioned 9
there, that it isn't mentioned now, and he doesn't do that.
10 He gives no basis to inquire further.
As the Vermont Yankee 11 case said, it isn't enough to wave things ought to be 12 considered.
You have to show that there is something to 13 inquire further.
We have no indication that Mr. McGranery has ever 14 l'
15 looked at the original environmental impact statement on the 16 operation of this plant..
i 17 MR. McGRANERY:
I would simply point out that the 18 many capable attorneys and experts for both the licensee and 19 the staff looked at this matter carefully and, in their 20 responses, made no -- not the slightest reliance on the 21 prior FEIS for Rancho Seco as adequately-addressing this 22 topic.
j 23 MR. LEWIS:
We did not address the Rancho Seco 24 FEIS because we addressed non-radiological accidents in our 25 ER update.
We did so by looking at NUREG-CR-0130 and by l
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determining that non-radiological accidents had been
]
2 examined by the Commission and found insignificant and, by
)
3 determining that, we fell within the boundsLof that 4
examination.
E Mr. McGranery has several times been ready to i
l 6
concede that perhaps our evaluation was adequate.
If our 7
evaluation was, indeed, adequate, then the staff had no 1
8 obligation to address the matter further in its
)
9 environmental assessment.
10 If, indeed, we provided information saying this 11 set of accidents is insignificant and ECO never challenged 12 that conclusion in our ER, why would there be any obligation-13 on the staff to go ahead and address an entirely 14 insignificant matter further in its environmental O
15 assessment?
16 ECO didn't challenge that conclusion before and i
17 its statement now that the staff has issued its L
18 environmental assessment and hasn't included a very long and 1
19 elaborate discussion of insignificant non-radiological 20 accidents is simply untimely and without basis.
21 MR. McGRANERY:
First, we have not conceded 22 anything as to the adequacy.
What we have said of what was 23 in the applicant's ER -- what we have said is that the l
24 staff's environmental document is supposed to build on what 25 the applicant submits in their ER.
i l
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i 522 1
In this case, the applicant made some glancing,.
2 adequate or inadequate is not the issue here, effort to l
3 address the topic of non-radiological accidents.
The staff 4
did nothing.
They didn't build on that.
They omitted it 5
and that constitutes a significant difference in the terms 6
of 2.714 (b) (2) (iii) between the ER and the EA.
7 JUDGE BECHHOEFER:
I questioned that, the fact 8
that the staff doesn't deal with particular -- the staff did 9
say that it -- the environmental assessment says it reviewed
)
10 the supplement to the environmental report.
So it started 11 with that premise that they looked.it over.
It doesn't take l
12 issue with it.
It agrees with it.
It certainly doesn't 13 constitute a difference.
14 MR. McGRANERY:
Mr. Chairman --
O 15 JUDGE BECHHOEFER:
That's clear.
l 16 MR. McGRANERY:
No one can point to any l
17 consideration of any non-radiological accident in the i
i 18 staff's EA.
19 JUDGE BECHHOEFER:
Staff says they considered the
)
20 entire environmental report.
This is a supplement to the 21 environmental report.
22 MR. McGRANERY:
This is somewhat like the argument 23 that we were addressing earlier as to whether it is 24 meaningful to say that you contacted the State of 25 California.
The EA is supposed to be a' freestanding ANN RILEY & ASSOCIATES, LTD.
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document.
2 It is not -- the fact that I might write out that I
3 I have read the encyclopedia does not give you' adequate.
4 notice of what I'm considering.
What gives'you notice of 5
what I'm considering is:what I write in my EA, and staff has 6
totally omitted any discussion of non-radiological 7-accidents.
8 MR. REIS:
Your Honor, we don't know whether we're 9
talking about anything significant.
We can even go back to 10 what we talked about this morning and 2.714.
He has to come:
11 forward with some basis to think that there's something 12 significant here.
We don't know that.there's anvthing 13 significant here, as I said before.
14 Certainly the EA'doesn't stand alone.
You have to i
i 15 read it with the FEIS.
Is there any significant accident i
16 that was considered-in the -- that was not considered.in the 17 FEIS where it was considered in the EA, and tell me what it 18 is.
Without that there is not the basis and specificity as 19 required.
20 It is directly contrary to Commiccion precedent 21 and Supreme Court determinations.that you have to give a 22 basis to inquire further.
Just waving and talking about 23 non-radiological accidents that might not have been 24 mentioned in both the FEIS and the EA is not enough.
25 He didn't do that here.
~
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JUDGE BECHHOEFER:
Or NUREG-CR-0130.
O/
e 2
MR. REIS:
Or NUREG-CR-0130.
3 JUDGE BECHHOEFER:
Which is discussed.
4 MR. REIS:
Right.
5 JUDGE BECHHOEFER:
Specifically.
i 6
MR. McGRANERY:
I will offer to the panel that 7
0130 is relevant only because it is relied on by the GEIS.
8 But it is --
i l
9 JUDGE BECHHOEFER:
It's relied on by this I
i 10 assessment, too.
11 MR. McGRANERY:
Only for its radiological 12 findings.
13 JUDGE BECHHOEFER:
That's not what it says.
14 MR. McGRANERY:
It is precisely what it says.
I 15 beg to differ.
The postulated accidentsLare limited to.
I 16 those -- to a discussion of the release of radioactive 17 materials and the resulting public radiation exposure.
18 That's what it's cited'for.
It is not cited for any 19 discussion of non-radiological accidents.
l 20 JUDGE BECHHOEFER:
It says it's bounded by the 21 accidents.
It's 0130, which the staff reviewed.
Those 22 accidents, we're told, include and they do include some non-23 radiological accidents.
24 MR. McGRANERY:
I would offer, with all_ respect, 25 that you cannot bound the effect of a non-radiological O
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1 accident by a radiological release estimate.
i 2
JUDGE BECHHOEFER:
That's not what it says.
3 MR. McGRANERY:
But that's what -- that is what it 4
would have to say in order for it to address non-i 5
radiological accidents.
That is that you cannot -- it's i
6 comparing apples and oranges.
You can have harms that can j
7 occur through excess radiation, but you can have totally 1
8 distinct harms that occur with a great deal more suddenness 9
by being hit by a crane.
10 You can't compare apples and~ oranges there.
.The i
11 only thing.that -- if one looks through this, the only thing i
12 that is discussed is the potential for radiological harm.
.j 13 By definition, when you're talking about harm from a non-14 radiological accident, you're talking about an entirely 15 different beast.
16 JUDGE BECHHOEFER:
Now, the type you just l
17 described, however, were discussed in the EIS, either 18 construction permit or operating license or both.
L
.19 MR. McGRANERY:
There has been no allegation of 20 that being true and no citation to that being true.
l 21 MS. CLARK:
The staff has,- on numerous occasions, 22 said that that is true.
That is the intent of.this.
-That 23 is the meaning of this.
Counsel.for ECO's interpretations l
24 to the contrary are just a fiction.
25 MR. McGRANERY:
The staff replies to Contention 6 O
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at Pages 18 and 19 of its response.
I need staff counsel's 2
help to find any reliance on adequacy of treatment in the 3
previous Rancho Seco FEIS.
4 MR. REIS:
Your Honor, counsel --
5 MS. CLARK:
The staff points out that this is a 6
supplement.
The staff -- and that's exactly to prior I
7 environmental review.
Well, prior environmental review, I i
8 think we can all assume, would include the FEIS for Rancho j
9 Seco.
10 MR. McGRANERY:
That's not the argument made.
The 11 argument made is reference on 0130 by way of the GEIS.
What 12 we find is the only reference -- the only reliance that the 13 GEIS has on 0130 is radiological accidents.
l i
14 JUDGE BECHHOEFER:
If there's nothing further on l
15 accidents, non-radiological accidents, let's go on to the j
16 next one here.
Radiological impacts now, No.
7.
l 17 MR. McGRANERY:
I think that the responses on this i
18 item basically try to argue that the contention should not 19 be considered because the ISFSI operation is not a part.of 20 decommissioning.
l l
21 This is a total fiction.
Any glance at the l
22 decommissioning plan in any part clearly indicates that the l
23 decommissioning plan covers the period from the time it's 24 approved until the ISFSI is built, until the' fuel is 25 transferred, until the reactor is'_ dismantled, and until'the.
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I 1
fuel and all other radioactive materials are removed from
(
2 the site.
i 3
To try and avoid this unavoidable reality by l
4 virtue of the fact that they are applying for a separate 5
materials license for the construction of the independent'
{
I 6
spent fuel storage facility should not be tolerated by this i
4 7
panel.
8 JUDGE BECHHOEFER:
Well, why not?
It's a separate.
9 action, to which I would believe you would have an l
1 10 opportunity to submit comments on, if'I'm not incorrect.
l l
11 MR. McGRANERY:
The construction and operation of
(
12 the independent spent fuel storage. facility is an integral 13 part of the decommissioning plan.
The plan cannot proceed
)
14 without it.
O 15 Therefore, any --
l 16 JUDGE BECHHOEFER:
I'm not sure that is correct.
l 17 MR. McGRANERY:
If the Chairman would look at any l
l 18 part of the decommissioning plan, it is discussed there and 19 it is essential to the plan to have the fuel transferred 20 from the spent fuel pit to this independent facility in l
21 order to go into the hardened stage.
i 22 These are interlocked.
They cannot be segmented.
23 The radiological impacts of that facility are an inseparable j
24 part of the decommissioning process.
That is the facility 25 would not be built but for the decommissioning plan and the ANN RILEY & ASSOCIATES, LTD.
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1 facility -- and the decommissioning plan cannot be carried.
0 2
out unless the facility is built, so that the fuel can be 3
transferred from the spent fuel pit and the plant itself can 4
go into hardened storage.
5 JUDGE BECHHOEFER:
But why isn't it sufficient to f
6 provide comments on the storage facility in the context of 7
its licensing?
8 MR. McGRANERY:
In approving the overall --
9 JUDGE BECHHOEFER:
The Commission is just telling 10 you to take one road rather than another.
You could do it.
11 So what difference does it make?
12 MR. McGRANERY:
Because then this panel'will not 13 have --
14 JUDGE BECHHOEFER:
Well, this panel has limited I
O 15 jurisdiction, but some panel might well hear it, assuming a 16 hearing would be authorized.
l 17 MR. McGRANERY:
This is an illegal segmentation of I
18 the environmental consideration and the radiological 19 consideration.
You cannot logically separate the planned 20 existence and impacts of the independent storage facility l
21 from the overall decommissioning plan.
22 JUDGE BECHHOEFER:
Well, an independent facility, 23 if it has potential for independent use, if anybody else is 24 going to use it.
25 MR. McGRANERY:
There is no allegation-made with -
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1 j
O r
2 JUDGE BECHHOEFER:
You're the one who has to make l
3 the allegation that no one else is going to use it.
To 4
interlock it, if it's a separate facility, I think you're 5
the one who has to show that its only use will be for this 6
facility.
I'm not sure one way or the other.
I don't know.
I 7
But if the word " independent" is there, presumably it's 8
available to others.
9 Maybe the licensee could answer that.
Maybe you l
10 don't know, I don't know, i
11 MR. McGRANERY:
Independent --
It's not going to be for fuel from 13 other plant other than Rancho Seco, i
l l
14 MR. McGRANERY:
Independent in this sense is in 15 the sense of freestanding.
It's not like an independent 16 grocer.
What we have here is a --
l 17 JUDGE BECHHOEFER:
Well, there are some 18 applications in other contexts for independent fuel storage l
19 facilities; the plant not only to take the fuel from the l
l 20 reactor in question, but other fuel, if space is available, i
)
21 and that kind of thing.
My inquiry was just whether this 22 was one of those or not.
23 MR. McGRANERY:
Under the Commission's rules, 24 there is an obligation to consider the cumulative impacts of 25 particular actions.
There is also an obligation,-in the ANN RILEY & ASSOCIATES, LTD.
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appropriate context, to consider all related actions when 2
there is a necessary and appropriate interdependence of 3
those actions.
l f
4 There is no proceeding where we would be able to 5
have a proper consideration of the cumulative impacts of the 6
total decommissioning plan, including the independent-7 facility, unless it's here.
A fair reading of the 8
decommissioning plan reads that the independent facility is t
9 part of that plan.
1 10 Because it's a materials application and is going 11 a slightly different route is not relevant to whether the 12 cumulative impacts and radiological risks of that facility 13 should be considered in this panel's overall consideration i
t I4 of the decommissioning plan.
But we don't have that i
15 information here for the panel to consider.
16 JUDGE BECHHOEFER:
Mr. Lewis.
I i
17 MR. LEWIS:
ECO hasn't been foreclosed from
-l 18 raising cumulative impacts in any proceeding.
Its basis in i
19 this pleading doesn't identify any cumulative impact that l
20 should have been examined that hasn't.
Likewise, it wasn't
[
1 21 precluded in the proceeding on the ISFSI from raising a 22 legitimate issue.
It just decided not to participate in 23 that proceeding.
24 There is an environmental report that's been-25 issued on the ISFSI.
ECO has access to the report.
There's ANN RILEY & ASSOCIATES, LTD.
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nothing that's prevented ECO from looking at the specific
(
2 impacts of the ISFSI and saying this particular impact makes I
3 the environmental impact of decommissioning Rancho Seco 4
unacceptable or significant.
f 5
It hasn't done that.
It-simply waves its hand and 6
says there's another ISFSI proposal out there and, j
7 therefore, that's comehow, per se, fatal to our proposal.
8 It hasn't advanced any specific facts, any specific expert i
9 opinion or anything showing a specific deficiency in the f
i 10 environmental-assessment of the proposal of decommissioning j
11 Rancho Seco.
12 It is, likewise, completely incorrect that ISFSI l
13 is an integral part of our decommissioning plan.
If we had i
14 continued to operate Rancho Seco, we would have still had to
. O 15 have built an ISFSI simply to store the spent fuel we were l
16 generating.
17 Further, the Commission has made it absolutely 18 clear that ISFSI operation is not part of decommissioning.
l l
19 In its comments on the decommissioning rule published in l
l 20 NUREG-CR-1221, this was the NRC staff's response to public 21 comments, the Commission stated "The actual safety aspects 22 and costs associated with the storage of spent fuel on an 23 interim basis after shutdown would not be dealt with as part-24 of licensee's actual planning of decommissioning activities j
25 or in the decommissioning plan which he would submit to the 1
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NRC under 10 CFR 50.82."
2 And it goes on to state "Since the storage of 3
spent fuel at a reactor is outside the scope of this rule, i
4 the proposed rule does not address whether the storage of
~
5 spent fuel at a reactor is licensed under 10 CFR Part 50 or 6
That was in response to a comment.
7 It's a separate action that's distinct from 8
decommissioning.
If ECO really believed that there was some l
9 cumulative impact that needed to be addressed and called 10 into question the environmental assessment, its obligation l
11 was to identify that impact and provide a basis supported by 12 facts and expert opinion.
It had the information available j
13 to make such a contention, if it had cared to, and it simply 14 failed to do so.
O 15 MR. McGRANERY:
We have a little bit of overkill I
16 here.
I have not been trying to make the argument that the 17 inclusion of the radiological impacts of the independent-1 18 facility would be fatal to this or any other project.
i 19 Secondly, I'd like a point of clarification.
Was 20 the comment you were reading from a staff position or a 21 Commission statement of consideration?
22 MR. LEWIS:
It's from NUREG-1221, which is -- I 23 don't have it here, but it's entitled " Responses to Public 24 Comments."
25 MR. McGRANERY:
It's a staff position, I believe 1
ANN RILEY & ASSOCIATES, LTD.
Court Reporters 1612 K Street, N.W.,
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you described it as.
Am I correct?
2 MR. LEWIS:
I don't have the document here.
-I 3
presume --
4 MR. REIS:
Let me clarify that.
It's the staff's 5
position.
It was written by the staff and it is on the 6
basis upon which the Commission approved regulations.
In 7
other words, the commission took action in approving the 8
regulation on the basis of the staff's preparation of.those 9
comments.
10 MR. McGRANERY:
It was.one of the documents in the
[
-l l
11 rulemaking file.
Am I correct?
i I
l 12 MR. REIS:
No.
It is the staff -- it isn't in the t
13 rulemaking file, as a whole.
It is the -- if you look at-l l
l 14 the statement of considerations, it points to.that document 15 and says it is acting on that.
16 JUDGE BECHHOEFER:
So it's essentially 17 incorporated by reference in the statement of 18 considerations.
f.
19 MR. REIS:
I cannot make that absolute assurance, l
l 20 but it seems that way to me.
21 MR. McGRANERY:
Our point here is relatively 22 simple.
It'is that the overall evaluation of the 23 radiological impacts of the decommissioning plan is 24 incomplete under NEPA, unless we have inclusion of those 25 impacts resulting from the independent spent fuel facility.
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1 1
MR. LEWIS:
At a citation to NUREG-1221, the 2
decommissioning rule statement of considerations, at 53 Fed.
3 Reg. at 24020, the Commission specifically referred to the 4
issues that had been raised by public comment and stated 5
"The detailed response to individual comments are documented 6
in NUREG-1221, entitled Summary Analysis and Response to 7
Public Comments on Proposed Rule Amendments on 8
Decommissioning Criteria'for Nuclear Facilities."
9 MR. REIS:
Further, in the statement of i
10 considerations, and I don't have the exact citations, it 11 also says that the consideration of fuel is not covered by i
12 the decommissioning rule, of removal and storage of' spent 13 fuel.
14 JUDGE BECHHOEFER:
Would that extend to beyond the l
15 safety aspects and into the environmental aspects?
I think so, Your Honor.
I think that's 17 what the Commission's intent was.
I think if you read it 18 through, you could see that was the intent of the 19 Commission.
20 There's one other matter I want to mention.
Mr.
21 McGranery, I don't know whether he meant to make this 22 concession, but he says that he doesn't think that the-23 radiological effects from an ISFSI are significant in any 24 event.
25 If they're not significant, why are we talking-ANN RILEY & ASSOCIAT2S, LTD.
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about this contention at all?
He said that.
I was sitting O
i 2
here.
I was a little surprised when I heard it.
But he 3
said he does not consider whether the radiological effects f
i 4
from this facility are significant and cannot say whether 5
they are significant.
6 Unless he has a basis to say that he has a
)
J 7
significant contention,_then there is no contention.
8 MR. McGRANERY:
I believe what I said was that I I
9 did not think that this consideration would be fatal to the i
10 project.
I have no reason to believe that they would be so 11 extraordinary as to be fatal, but that's a -- I think that I
i 12 one can consider an issue to be a significant issue to be 13 addressed in a rational fashion without considering it to be.
14 fatal.
I 15 MR. LEWIS:
If this issue doesn't not effect the I
16 outcome of this proceeding, it's not material, because that 17 is the Commission's definition of material.
18 MR. McGRANERY:
Excuse me.
It does not mean that 19
-- when I say f=tal, it means that it absolutely kills the 1
20 project.
It doesn't mean that the information might not be l
21 significant enough that the Board would require certain i
22 modifications in order to meet the NEPA and AEA objectives.
4 1
23 MR. REIS:
This is a game.
l 24 MR. McGRANERY:
Pardon me?
25 JUDGE BECHHOEFER:
Well, I understand the ANN RILEY & ASSOCIATES, LTD.
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position.
Is there anything further-on this?
2 MR. REIS:
No.
We will rest on our pleading.
3 JUDGE BECHHOEFER:
On eight.
4 MR. REIS:
Are we on eight?
No.
It's seven.
5 That is seven.
6 JUDGE BECHHOEFER:
Well, on seven, I just asked if 7
the parties had anything further to state.
8 MR. REIS:
On seven, I said we would rest on our 9
pleading.
10 JUDGE BECHHOEFER:
Well, let's go on to eight, 11 then.
Turning to eight, although the subject is somewhat L
12 different, isn't the analysis similar to what-we were-c 13 talking about in, I guess, No.
6, dealt with elsewhere?
14 MR. McGRANERY:
Excuse me.
I'm trying to find a 15 particular document here.
16 JUDGE BECHHOEFER:
I might also add isn't a lot of 17 this in non-radiological impacts -- aren't~some of those 18 discussed -- in fact, discussed?. I'm talking about climate, l
19 demography, land use, water use.
A number of those things i
20 seem to me to be non-radiological impacts, i
I think that we would concede that l
22 the EA does contain paragraphs that have headings that are j
l 23 appropriate, such as climate, demography and socioeconomics, 24 land use, water use, etcetera.
i 25 But when one sees what's under-those-paragraphs, ANN RILEY & ASSOCIATES, LTD.
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it is almost laughable.
The demography section addresses O
2 principally beef cattle and 15,000 residents within a 13-3 mile radius, enthout saying anything else about them.
We 4
have more about grazing beef -- pardon me.
5 This principally recognizes the existence of 6
grazing beef and some new residential development expected.
7 It does not quantify most of those topics.
It does not 8
address any of the changes that have taken place over the 9
last 20 years -- pardon me -- 14 years.
10 The so-called discussion is almost trivial.
11 JUDGE BECHHOEFER:
Have you got any specific
)
i 12 examples of changes that were left out, that were improperly 13 not accounted for?
I'm not sure that it's enough to say 14 generally there's no discussion of the changes or no!
15 discussion of the activity, particularly where there is some 16 discussion.
l l
17 MR. McGRANERY:
As far as the demography goes, it 18 does not discuss what developments have occurred since the 19 FEIS.
It does not in any way relate the decommissioning 20 project to an interaction with the residences.
In a 21 subsequent item here, we also point out that the 13-mile 22 radius considered is inadequate and that with a Part 50 l
23 license as opposed to a materials license, the presumption 24 is that you consider the effect on a 50-mile radius.
25 In fact, the environmental document submitted by O:
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SMUD is consistent with that 50-mile radius.
It does not -
2
- if you want to observe the extent of its interaction, it 3
states, at one point, "Although some new residential 4
development is expected in the area to the west of the 5
plant, decommissioning will not have an adverse effect on 6
this development."
7 It doesn't talk about any commercial developments.
8 It doesn't talk about employment.
It doesn't talk about --
9 in any quantitative sense.
It recognizes that the income i
10 generated by the plant was eliminated, but it doesn't say 11 what the significance of that is.
l 12 It talks about employment having been reduced' 13 because of the closing.of the plant, but it doesn't say by 14 how much..
It says that during dismantlement, the staff size 15 will increase.
It doesn't say by how much, It.doesn't say l
l l
16 what's going to happen after it's complete.
l 17 This is a trivialized nod in the direction of the 18 consideration of socioeconomics.
There is no explanation 19 here for any of those things.
l 20 MS. CLARK:
Your Honor, staff would like to take 21 issue with Mr. McGranery's characterization of our 22 environmental assessment.
First of'all, looking at the 23 section dealing with demographics, what the_ staff is 24 concerned with and the only relevant thing here are the' r
25 current demographics and'those that will occur in the ANN RILEY & ASSOCIATES, LTD.
Court Reporters
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1612 K Street, N.W.,
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i l
539 l
l
[
1 future.
i 2
When Mr. McGranery talks about the changes over 14 3
years, I'm not sure, but maybe he thinks he's talking about 4
what happened ten years ago, which would have absolutely 5
nothing to do with what we're assessing here.
t 6
Furthermore, he may -- he talks about the fact-7 that we refer to cattle and a limited number of residences.
8 That's because the area surrounding the site us undeveloped.
9 That's why we don't discuss commercial impacts, because.
10 there aren't any commercial impacts.
It's not developed.
11 Furthermore, when we talk about employment being 12 reduced, we note specifically that the staffing reductions 13 will be small, because there have already been reductions.
14 Mr. McGranery has not raised any relevant issue-15 here that even conceivably should have been considered by i
16 the staff but was not.
Furthermore, he had the obligation j
17 to do that when he prepared this contention, not here at the l
18 prehearing conference.
19 MR. McGRANERY:
I have a feeling that if we were j
20 to continue on this one, we would just be playing the game 21 of verbal ping-pong.
I think the Board -- unless the Board j
22 has any questions, I think the Board has the essence of the l
23 position of the parties.
24 MR. LEWIS:
The licensee is willing to stand on 25 its pleadings.
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i 1
JUDGE BECHHOEFER:
Why don't we go to No.
9, which O-f 2
essentially talks about 13 miles versus 50 miles?
i 3
MR. McGRANERY:
I believe.that that's fairly self-4 explanatory.
The presumption of a 50-mile radius of impact 5
has been held to be the appropriate one in Part 50 l
6 proceedings.
If there have been smaller ones --
l t
7 JUDGE BECHHOEFER:
Is that not based on-accident i
8 considerations which could occur for an operating _ reactor?
9 MR. McGRANERY:
.It is for radiological and 1
10 environmental impacts f
11 JUDGE BECHHOEFER:
But isn't the_50 based on 12 accidents, based on the conceivability of accidents having l
13 effects going out that far?
s 14 MR. McGRANERY:
Not simply accidents, because when O
i 15 you take a large project like this and consider'it, its i
16 impacts, other than accident impacts, its sociological
. 1 17 impacts, its economic impacts, its other environmental 18 impacts stretch over a large area.
19 The fact that the 50-mile zone is appropriate-here 20 is also evidenced by SMUD's own supplement,_which presents a 21 50-mile radius of relevance.
In short, the staff, by trying l
22 to cramp down the area to 13 miles - _well, they'can't quite l
23 make up their minds on this one.
24 It's 13 miles in Paragraph 3.1.3, but the next' 25 paragraph, the land use relevance turns out to be ten miles'.
l l
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In short, we have the old Calvert Cliffs approach here of 2
taking a very cramped attitude towards consideration of the 3
staff's NEPA responsibilities and we really.do need to reach 4
out and require the staff to consider the appropriate zone 5
of impact.
6 It may be that if the panel should defer doing 7
that at this time, it may be that it could order the staff 8
to do that after the staff has republished this'EA and asked 9
for comments and the comments are presented showing the 10 failure in the staff's environmental responsibilities in 11 this document.
12 JUDGE BECHHOEFER:
Is there anything that happens 13 between 13 and 50 that you can point to that should.have l
14 been covered?
Thirteen and 50 miles, that is.
l 15 MR. McGRANERY:
I believe there are probably a lot-i 16 of things going on there.
17 JUDGE BECHHOEFER:
Right now, do you have examples 18 of a particular impact 34 miles out or whatever that should 19
-- the impact of decommissioning, that is, that should have 20 been looked at?
21 MR..McGRANERY:
We are probably getting very close L
22 to the City of Sacramento there and, yes, we are emerging 23 from a rural area.
24 JUDGE BECHHOEFER:
But are there any impacts of 25
_the decommissioning that go out that far?
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MR. McGRANERY:
Until we have an examination 2
performed, we don't know.
We do know that according to the-3 Commission's --
4 JUDGE BECHHOEFER:
Well, the staff looked at 13 4
5 and then if somebody says 13 isn't enough, you've got to l
i 6
have a basic reason.
There's no generic requirement that 50 l
t 7
is applicable for all cases.
l i
8 MR. McGRANERY:
There is a generic assumption.
9 JUDGE BECHHOEFER:
In fact, the Commission has l
t 10 said for some cases it isn't applicable.
I 11 MR. McGRANERY:
There is a generic presumption 12 that 50 miles is applicable to Part 50 licensing.
If the 13 staff wants to use something less, the burden shifts.
I 14 don't have to support the fact that the staff does.the: usual 15 thing.
If the staff wants to move away from the usual 16 requirements down to 13 miles, and I suppose we might find
[
17 another paragraph here that says five miles.
The staff 18 doesn't seem to have a consistent radius.
l 19 It's the staff's duty to justify that and there is l
20 no justification for not using the typical 50-mile radius.
21 Even the applicant did it.
That's another example of a 22 significant variation between what the applicant put in and 23 what the staff did.
The. staff is attempting to shirk its 24 responsibilities.
25 MS. CLARK:
Your Honor, there is no generic ANN RILEY & ASSOCIATES, LTD.
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presumption of a 50-mile radius.
The staff --
O 2
JUDGE BECHHOEFER:
Am I not correct that that 3
initially came about as a result of potential accidents?
l 4
MS. CLARK:
Emergency planning, I believe.
5 JUDGE BECHHOEFER:
No.
I think it was.long before 6
that.
I thought it --
7 MR. REIS:
It was long before emergency planning, j
8 It was the basis of someone intervening that they could be 9
affected by an operating plant.
The Commission has 10 specifically said there are many things where that 50 miles 1.1 does not apply to because they cannot be affected by an j
i 12 operating plant, because either the plant is not' operating j
\\
13 or the amendment that is sought in a particular proceeding i
14 cannot affect people out to 50 miles.
15 JUDGE BECHHOEFER:
That's St. Lucie, is it not?
16 MR. REIS:
That's St. Lucie, among others.
17 JUDGE BECHHOEFER:
Among others, right.
18 MR. REIS:
And what the Commission.has said in 19 those cases is you look at it on an individual. basis.
Mr.
20 McGranery is, again, confusing who has to go forward.
These 21 are his contentions.
Yes, if they go to hearing, we have 22 the burden of proof or the applicant.has the burden of 23 proof, depending on the type of contention.
j 24 But the burden of going forward in framing a 25 contention to require one to have a basis to inquire further i
i ANN RILEY & ASSOCIATES, LTD.
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is on the Intervenor.
Time after time we have heard this O
2 afternoon on this contention and many preceding it, hey, 3
it's the staff that has to do this, I can just say that 4
something is missing and that's good enough.
5 Well, it's not good enough.
The Supreme Court has 6
said it's not good enough.
The Commission has said it's not 7
good enough in the Vermont Yankee case before it got to the 8
Supreme Court, and it's not good enough.
He has the" burden.
9 He knows what his burden is.
We've told him again and again 10 in proceeding after proceeding and he doesn't listen.
11 JUDGE BECHHOEFER:
Anything further on this one?
12 MR. McGRANERY:
I would only point out that the i
13 staff, in responding to this, cited to no decision 14 supporting the conclusion that other than a 50-mile radius l (2) 15 was appropriate here.
We put the staff on clear notice as i
16 to what our position was.
The staff came up with no 17 decision saying that we were wrong.
18 Exploring the licensee's reply, we find it also 19 lacks any citation to a decision that we'are wrong.
In 20 fact, what the licensee says is that this data, as well as 21 the population within a 50-mile radius was provided in the 22 district's ER as background information.
l l
23 The applicant is virtually on my side here.
What-24 the applicant -- the applicant has submitted information 25 based on a 50-mile radius.
It's only the staff that's O-ANN RILEY & ASSOCIATES, LTD.
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545 1
trying to avoid the obvious responsibility.
O 2
MR. LEWIS:
The staff does not side with ECO.
In i
3 our ER, we've updated the demographic information that was I
4 in our original FES and we provided data out to 13 miles, 5
and that 13 miles is a little greater than ten because the I
6 exact boundary back in the operating licensee stage had been 7
massaged somewhat to catch areas where there's a slightly 8
greater population beyond ten miles.
9 We also gave out data to 50 miles, but we looked 10 at all the impacts and found them to be insignificant.
The 11 staff makes innocuous statement in,its discussion of the 12 site to indicate that there's_a low population density 13 around the site.
They cite this 13-mile data to show there 14 aren't many people and there's only a few cows out there.
t 15 ECO picks up on this as if that somehow limits the l
16 findings on the environmental insignificance of this 17 proposed action.
It's not a limitation.
The fact remains i
18 that there has been a conclusion that there's no significant 19 impact and ECO points to no specific information that calls 20 into question that finding.
l j
21 MR. McGRANERY:
Actually, what we have here is i
22 sort of a bootstrap argument.
On the one hand, it is argued 23 that you should not consider the larger area because you 24 have a finding of no significant impact on the smaller area.
25 Then you are justifying the smaller area because you have ANN RILEY & ASSOCIATES, LTD.
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]
1 the finding of no significant impact.
f 2
If I were to focus on a small enough area, I could r
3 always find no significant impact.
It is only when you 4
consider the appropriate radius of consideration, which is 5
50 miles in here, that you have the opportunity to'see i
6 whether there is a significant impact.
i 7
It's the usual practice --
8 JUDGE BECHHOEFER:
But you had that opportunity i
9 and you really not followed.
You could have said at 50.
10 miles away, there's a possibility of certain things 11 happening and this should have been analyzed as a result of l
r l
12 the decommissioning.
That kind of contention I don't think i
13 we have before us.
t 14 MR. McGRANERY:
What we have before us is the
~
l C:)
15 failure of the NRC to apply the 50-mile radius to its I
16 consideration, which is --
17 JUDGE BECHHOEFER:
Fifty miles is not' written into 18 the law.
There's no rule saying 50 miles.
19 MR. McGRANERY:
There is a presumption of the j
20 fact.
l 21 JUDGE BECHHOEFER:
No.
It was only a presumption l
22 of impact because of accidents.
Accidents here are 23 different from accidents back there.
1 1
24 MR.'REIS:
Your Honor, he is wrong on the 25 presumption.
The presumption is only for operating ANN RILEY.& ASSOCIATES, LTD.
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1 licenses.
O 2
MR. McGRANERY:
No.
Excuse me.
It is for Part 50 3
licensees and I will point out, most importantly, that I 1
4 made this allegation or I offered this contention and l
1 1
5 neither the staff, with all of their resources, nor the 6
applicant, with all of its resources, came up with a single 7
cite to say I was wrong.
8 MS. CLARK:
That's because the ECO's contention 9
was completely unfounded, has no citation, and it is the 10 obligation of the Intervenor to provide the information or l
i 11 the basis of its contention.
It is completely unfounded.
12 JUDGE BECHHOEFER:
What they're saying-is if you l
13 had come up with any particular impact, said you have' failed
~
14 to consider it and it happened to be 50 miles out or l
15 whatever miles out, then they would have to either explain 16 why they didn't or decide they have to reconsider it.
That 17 would be putting them on notice of what one of the -- what 18 might have been omitted.
19 MR. McGRANERY:
In all of the other contentions, 20 we do point out other failures of consideration.
Here we 21 are simply saying -- and the issue raised by this contention l
22 is is a 13-mile radius appropriate or is a 50-mile radius-23 appropriate, and they have not come up with any reason in 1
24 response, neither one of them, as to why the.50-mile radius 25 is not appropriate or why the 13-mile radius is appropriate.
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548 1
JUDGE BECHHOEFER:
What we' re saying :Ls, I think, 2
it's your obligation to say why 13 isn't good enough.
3 MR. McGRANERY:
Well, I have said that because j
4 there is a presumption of impact within 50 miles of --
1 5
JUDGE BECHHOEFER:
So if we find there is no
)
6 presumption, which is if I think the presumption doesn't.
7 apply, then what happens?
We, I guess, don't accept the 8
contention, then, because there is no such presumption.
1 9
MR. McGRANERY:
That would certainly be the
]
10 result.
But I can say that neither the staff nor the' 11 applicant has given you any basis on which to make such a 12 finding.
13 JUDGE BECHHOEFER:
It would be, I would think, a
)
14 matter of law.
- O 15 MR. McGRANERY
They have not pointed to any 16 matter of law.
j 17 JUDGE BECHHOEFER:
Well, we have some obligation 18 to determine whether or not anybody specifically pointed to l
19 it.
If the regulations and the applicable. rules are 20 different from what any party puts forward, I'd have to act-21 on that.
i l
l 22 MR. McGRANERY:
Very good.
That's my whole point.
L 23 Of course, if you had said X or whatever'it might be, the 24 impact was not considered and should have been, be it~--
25 MR. McGRANERY:
I have in the other contentions or ANN RILEY & ASSOCIATES, LTD.
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1 bases.
I have.
2 JUDGE BECHHOEFER:
But not this particular one.
3 MR. McGRANERY:
Well, this_particular --
4 JUDGE BECHHOEFER:
I'm talking about this I
5 particular contention, based on 50 miles.
i 6
MR. McGRANERY:
Let me put it this way.
The other 7
bases point out other failures and what -- that is 8
substantive failures to consider this or that.
What this-r 9
one addresses is that those substantive failures should be i
10 addressed to a population within a 50-mile radius, not'a 13 11 or a ten-mile radius.
.l 12 So that this is a separate error on their'part.
I 13 We have pointed out things they didn't consider in other 14 bases and here we are pointing out that.they have compounded 1
15 this by limiting, unduly, the area affected by these other l
16 failures to consider substantive matters.
I 17 JUDGE BECHHOEFER:
But all we were asking is what l
18 are the effects they've left out.
l 19 MR. McGRANERY:
Those are addressed in the other j
l l
20 bases.
We have two separate approaches here.
First, we i
l 21 have pointed out whera various considerations of l
22 demographics or socioeconomics or radiological. releases are 23 inadequate or are totally omitted.
24 Now, we are separately pointing out that the l
25 impacts of these omissions, once the -- that the impacts of l
t l
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these omissions address not just the.13-mile radius, but the 2
50-mile -- it should be addressed in terms of the 50-mile 3
radius.
4 So on the one hand, we are saying there are these 5
substantive impacts that need to be considered, but haven't, 6
and, by the way, they should be considered over a 50-mile
{
7 radius, not simply a 13 or a. ten.
So we have tried to give i
8 you that part of the puzzle.
9 JUDGE BECHHOEFER:
Well, I wanted to just 10 understand what you were trying to say on that.
l 11 MR. McGRANERY:
Thank you.
l 12 JUDGE BECHHOEFER:
If we turn to -- is there 13 anything further on nine?
i l
14 MR. LEWIS:
No, Your Honor.
l 15 JUDGE BECHHOEFER:
If we turn to ten, I read the l
l 16 Commission as having foreclosed that particular contention.
17 I would like you to comment on that, on 93-3 and perhaps 18 later.
19 MR. McGRANERY:
I believe that -
just a second, 20 please.
The staff has cited 98.
There, what the Commission 1
21 ruled out was Rancho Seco need not address resumed operation l
22 as an alternative.
That's not what we're addressing here.
23 Unfortunately, I'm operating from the slipsheet opinion as 24 to 93-3.
-25 In looking at 93-3, I see the Commission saying i
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i 551 5
1 "Despite ECO's urging, we decline to reconsider our prior 2
determination that resumed operation is not to be considered 3
as an alternative."
I do not read our contention as being 4
in conflict with that guidance.
5 We could put our contention in slightly different 6
words and what we describe it as is the no action 7
alternative.
That is that one of the options that this 8
Board has before it is the option of simply not approving-9 the decommissioning plan and the no action alternative is 10 always one that must be considered in any NEPA evaluation.
l 11 So rather than approaching this from what the 12 Commission -- what the Commission has ruled out is the 13 alternative of resumed operation.
What we have phrased that r
14 as partially here is the alternative of simply. preserving C) l 15 the plant, not future operation.
I i
16 That can also be described as the no action 1
17 alternative, which is always an alternative to be considered i
I 18 under NEPA.
i 19 MR.. LEWIS:
Your Honor, I would refer the l
20 Licensing Board to the citations on Page 28 of our pleading.
i 21 In this very proceeding, in its previous contentions, ECO 22 attempted to dress up the resumed operation alternative as a 23 preserving the plant alternative.
24 The Licensing Board rejected that contention and' 25 the Commission affirmed it.
If you read those decisions.in ANN RILEY & ASSOCIATES, LTD.
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their full context, that's completely obvious.
2 MR. McGRANERY:
Excuse me.
May I ask whether I 3
was quoting from the -- since I'm working with the slipsheet 4
and yours is to the NRC volume, was I quoting the 5
appropriate passage of 93-3 or part of the appropriate 6
passage?
7 MS. CLARK:
Yes.
In fact, that's what the staff 8
has quoted in our response to this contention.
As we go 9
further down in that passage, the Commission goes on to say 10 that "The broadest NRC action related to Rancho Seco's l
l 11 decommissioning is a determination of how the 12 decommissioning will be accomplished."
i 13 The question here is not whether or not to
- f 14 decommission the plant.
It's simply how the decommissioning 15 is to be done.
16 MR. McGRANERY:
I would offer a slightly different 17 reading of that.
When it says the broadest NRC action l
18 related to Rancho Seco is X, it does not say what the 19 narrowest action is.
l 20 The narrowest action is a consideration in l
21 adoption of the no action alternative or a denial.
I have 22 no argument with that, that the broadest action possible is~
23 to approve decommissioning in some form or another,.but the 24 most narrow action would be simply to say no.
25 JUDGE BECHHOEFER:
But the Commission, I think,-
O ANN RILEY & ASSOCIATES, LTD.
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has said that no action does not mean either resumed 2
operation or preparing for it, and I think they've defined 3
what no action means in our context.
4 MR. McGRANERY:
I'm not arguing that it does.
I 5
don't believe that we're asking anyone to prepare for i
6 operation.
All we're asking is for the plant to be 7
preserved, a
8 MS. CLARK:
This very same issue came up at 9
Shoreham and the Commission -- I don't have the cases before j
10 me, but the Commission explicitly stated in that case that j
11 we need not consider the no action alternative.
l 12 MR. McGRANERY:
If I may offer, counsel for the.
13 staff has, in fact, relied on the Shoreham decision.
- Again, 14 that is what we were just reading from, j
()
15 MS. CLARK:
I'm relying on 93-3.
93-3, in turn, l
16 cites the Shoreham decision.
17 JUDGE BECHHOEFER:
Cites CLI-90-.8.
18 MR. McGRANERY:
I beg your pardon.
19 JUDGE BECHHOEFER:
Anyway, the question I was 20 raising is does the Commission -- do the Commission's orders 1
21 even permit us to consider this particular contention?
o 22 MR. McGRANERY:
The answer is yes.
As the Chair 23 knows, the no action alternative is in every list of NEPA i
24 alternatives.
The no action alternative can never be ruled 25 out.
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JUDGE BECHHOEFER:
Right, but no action has been 2
defined.
3 MR. McGRANERY:
But, again, we are not defining it 4
as preparation to operate or to operate.
What we're talking 5
about here is -- you can look at it in one of two ways.
6 One, you can refuse to approve the decommissioning plan.
7 That's a pure no action.
I i
8 Secondly, in refusing to approve the l
9 decommissioning plan, you could issue an order that would 10 assure the proper preservation of the plant, without i
11 addressing the decision of whether it would be operated 12 again or not, j
i 13 JUDGE BECHHOEFER:
I don't think we could do that.
24 MR.. McGRANERY:
I don't see anything in what the j
O 15 Commission has said that doesn't allow that.
Of course,- I i
16 would point out that if the Board does have a doubt in that l
17 direction, the Commission has invited the panel to certify l
l 18 any quastion that it is in doubt about to'the Commission.
19 MR. LEWIS:
In CLI-93-3, the Commission 20 specifically referred to ECO's argument.
It's stated at 37 l
21 NRC 144.
ECO does not define no action, but states that the q
l l
22 appropriate versions of the no action alternative would i
23 preserve the potential for future operation and approval'of 24 decommissioning would destroy that_ potential.
i 25 This was ECO's argument.
On Page 145, it states l
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it rejects that position.
It states "In this case, no 0
2 action on the proposed approval of the decommissioning plan f
3 would simply be not to approve the plan or,'more generally, I
4 not to approve decommissioning at Rancho Seco at all."
i 5
That statement rejects, in effect, ECO's assertion 6
that no action is the same as preserving Rancho Seco for
{
7 continued operation.
It goes on further to specifically l
i 8
show how remote and speculative ECO's arguments are, and j
i l
i l
9 that's at the bottom of Page 145.
l l
l 10 In the context, it is absolutely clear that'this 11 preservation for future operation scenario is beyond the i
12 bounds of the NRC's NEPA review.
i 13 JUDGE BECHHOEFER:
Anything further on that
'I t
14 contention?
O 15 MR. REIS:.The staff has nothing further.
j
(.
16 JUDGE BECHHOEFER:
I guess we have one more safety l
17 evaluation contention.
My question cn1 this is is there any i
18 basis at all for this contention and,-second, if there is, j
i 19 attempting to incorporate generally, by reference, the same 20 thing the Commission ruled out in terms of the various 21 questions, the contention attempting to raise the staff's 22 questions as bases.
23 Isn't it either one or the other?
It may be both, 24 I don't know.
l 25 MR. McGRANERY:
I'm not sure.
Would the Chairman L
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indulge me?
I didn't quite get the thrust of the question.
2 JUDGE BECHHOEFER:
First, the first part of it was' i
I 3
-- well, maybe I should have worded it this way.
If'the 1
4 inCr. pendent facility is a different action, why should the 5
staff be faulted for not incorporating into its safety 6
review something that will be subject to a separate safety 7
review?
y 8
Is this the same incorporation, by refere,nce, that l
9 we've heard before in connection with some of the j
1 10 environmental discussions?
l i
i 11 MR. McGRANERY:
No.
What this is saying is that, i
12 basically, neither the staff nor this panel can make any l
l 13 judgment as to the overall adequate protection of the public 14 health and safety proposed for the decommissioning plan j
15 without consideration of the independent spent fuel. storage j
16 facility.
j i
17
- We are not relying on any questions asked by the
]
i 18 staff with respect to the ISFSI.
We are simply pointing out 1
19 here that you cannot do a safety evaAuation of overall l
20 decommissioning and leave out such an important facility 21 which lies at the heart of it.
22 We would also point out 23 JUDGE BECHHOEFER:
Well, if it doesn't get 24 approved on its own, it doesn't get built and this plan then 25 has alternatives.
There are alternative storage facilities ANN RILEY & ASSOCIATES, LTD.
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557 1
that could be used.
One doesn't rest on the other.
2 MR. McGRANERY:
I'm not aware of any such 3
facilities.
I don't believe anyone has offered --
1 4
JUDGE BECHHOEFER:
Nationwide, there are a few.
j 5
MR. McGRANERY:
I have not heard the applicant or l
6 anyone else offer that the Rancho Seco fuel would be shipped 7
anyplace else for interim storage.
B JUDGE BECHHOEFER:
I think they expect that the l
9 ISFSI will be approved.
If isn't,'for safety reasons, the.-
10
- normally, you either turn it down or you require changes I
l 11 to be made to make it safe.
12 MR. McGRANERY:
I guess one of the. things that I'm 13 trying to point out is that in a sense, what-the staff and
)-
14 the applicant are inviting the panel to do is to look at a-15 plan, a decommissioning plan, at the start of it, at.the 16 middle of it, and at the end of it, and leave out a critical 17 piece that's in there between the middle and the end.
18 I don't see how it's possible for the staff or 19 this panel to look at a plan to put the reactor into 20 hardened storage in year X, which is dependent upon the t
I 21 spent fuel facility being available for the fuel to be 22 moved, and not be concerned about the design or reasonable 23 availability of that spent fuel storage facility.
24 Likewise, insofar as you're asked to look at the 25 cleanup of the site when it -- and the. removal of the fuel O.
ANN RILEY & ASSOCIATES, LTD.
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558 1
from the site, I don't see how it's possible for you to have 2
reasonable assurance as to those activities without being 3
aware of the impact of the design and operation of this 4
spent fuel facility.
5 They are trying to segment the unsegmentable here.
l 6
I would also point out that the safety evalur, tion, the l
7 reasonableness of the safety evaluation also depends upon l
8 this panel's findings, eventual findings with respect to l
9 such things as the adequacy of the funding plan and the' 10 other issues that we have raised here.
Those are all prior l
11 issues to the validity of the staff's recommendation.
l l
12 If I may, apropos of that last point, the Chairman f
i 13 raised a point of interest yesterday and I think I'd like to 14 very, very briefly provide the information that the Chairman 15 was interested in.
It was with respect to the funding 16 rates.
I l
i 17 The decommissioning plan, at Page 5-9, indicates i
~
t I
18 that the monies would be invested in primarily U.S.
Treasury 19 and government agency securities.
The plan is further.
f 20 premised upon the district's expectation that these funds l
21 will earn interest at eight percent or higher.
l j
l 22 I have had reference, as the Chairman offered 23 yesterday, to the money rates appearing on Page F-10 or the 24 September 22 Washington Post.
I will offer that the 30-25 year bond rate, the current 30-year bond market rate for ANN RILEY & ASSOCIATES, LTD.
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1 Treasuries is at 6.12 percent and the one-year Treasut, bill 2
constant maturity rate is at 3.38 percent, with other bills 3
being at lower percentages.
l 4
The impact of this difference of' expectation and l
5 reality can be shown by reference to the $100 million 6
figure; that is, $100 million in government bonds or in 7
anything at eight percent -- we aren't going for more than i
8 that -- would become --
9 MR. REIS:
Your Honor, can I interrupt at this f
point?
10 l
l 11 MR. McGRANERY:
-- would become --
l l
12 JUDGE BECHHOEFER:
No, let him finish.
i 13 MR. McGRANERY:
-- would be 216 million over eight j
14 years.
However, at 6.12 percent, the current rate, we have lO l
L 15 a $35 million shortfall down to 181, and, at the Treasury i
16 bill rate, we would have a shortfall of $76 million down to i
17 139.
I think that these are very significant differences 18 and differences that must be addressed now to assure prudent i
19 funding, whatever the funding target we ultimately decide l
i 20 on.
l 21 The rate of investment premised on eight percent 22 is anything but a realistic rate at this time.
23 MR. REIS:
Your Honor, before other parties 24 respond --
25 JUDGE BECHHOEFER:
I realize that --
1 ANN RILEY & ASSOCIATES, LTD.
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560 l'
MR. REIS:
This is a total interruption.
Let's 2
finish with this and let's have a little order and finish 3
with this contention first and then, if anybody has a 4
response or Mr. McGranery has more to state on that, let's i
5 go to that.
But let's not break it up in the middle.
It 6
really is unrelated to the contention.
7 JUDGE BECHHOEFER:
I agree with you.
The formal 8
manner of order --
i 9
MR. McGRANERY:
I apologize.
I did not mean to 10 interrupt the Board's or the staff's concentration.
11 JUDGE BECHHOEFER:
Is there anything more on the s
12 SER?
i i
13 MS. CLARK:
Yes.
The staff would like to comment g
14 on that contention.
I'd like.to point out that the i
i jurisdiction of this Board is set out in the notice of i
15 16 opportunity of hearing.
The notice of opportunity of
't 17 hearing, to which the ECO -- on which ECO intervened, was on e
18 the decommissioning plan and the environmental report on j
19 that decommissioning plan.
i i
20 Therefore, this Board does not have jurisdiction j
21 to do what ECO would request or review the ISFSI.
ECO had 22 the opportunity to intervene on the subject matter of the 23 ISFSI.
The notice was filed on that, published in the 24 Federal Register, and they chose not to do so.
i 25 As a consequence, it's too late to do so now.
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MR. REIS:
Your Honor, I'd like to supplement.that 2
or have permission to supplement that.
Further, in the 3
remand order, this Board does not have jurisdiction.
The 4
remand order covered three things; funding, LOOP and the 5
environmental assessment.
This is neither of'those three.
6 In addition, I know we didn't raise it'in our 7
pleading, but jurisdictional matters -- the Board has an j
l 8
obligation to consider jurisdictional matters even
.l 9
independently.
From the point of view of what'was remanded, i
10 this is not within the remand.
11
' JUDGE BECHHOEFER:
Could this be considered
)
12 collectively as a package with the environmental assessment?
)
13 MR. REIS:
No.
No.
That's not what the l
14 Commission said.
l O
15 JUDGE BECHHOEFER:
Well, they were issued
[
16 together.
l l
17 MR. REIS:
No.
That's not what the Commission
]
18 said.
l 19 MR. LEWIS:
Your Honor, there is also no basis for 20 the contention.
The contention asserts that there is no r
21 design or schedule of ISFSI.
A month before this contention 22 was filed, there was a revised ISFSI environmental report l
23 which specifies the design and specifies the schedule, and 1
24 ECO hasn't addressed it.
l 25 Further, with respect to the safety of our
)
i i
i ANN RILEY & ASSOCIATES, LTD.
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~-
i 562 1
decommissioning plan, which is the only issue that's before 2
the Licensing Board, the staff considered what happens if 3
our ISFSI is delayed.
It concluded that even :Lf we lef t the 4
spent fuel in the pvol and it remained in the custodial safe l
5 store phase, the plant would still be adequate to protect 6
public health and safety.
i 7
This issue is entirely irrelevant, immaterial and l
8 unsupported.
}
l j
9 MR. McGRANERY:
That does get us back to an j
l 10 earlier funding issue, where if the independent storage l
l 11 facility is not constructed, we find that Rancho Seco willi 12 cost $8 million more a year or 80 million, if it's just-for 13 ten years for the storage of the fuel in the spent fuel pool i
t 14 rather than in the independent facility.
15 So we're sort of backing -- we're going back with t
16 this new presentation of the spent fuel storage facility not 17 being necessary.
We're going back to support an additional 1
18 reason why prudence would require planning on that $8 19 million a year funding.
20 MR. BAXTER:
Your Honor, those are not 21 inconsistent at all.
The fact that, from a safety 22 standpoint, the staff looks at what might happen if.the 23 ISFSI is not constructed, will the decommissioning plan 24 still be safe, does not at all tell you that'that's so 25 likely that we ought to fund for it.
Those are totally ANN RILEY & ASSOCIATES, LTD.
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different evaluations and they're not inconsistent.
2 We would like to discuss the funding issue ag.in, 3
when the Board indicates.
4 JUDGE BECHHOEFER:
Have we finished the SER 5
issues, as stated?
6 MR. McGRANERY:
Yes.
7 JUDGE BECHHOEFER:
Mr. Baxter or Mr. Lewis, do you 8
wish to speak about the additional information on funding?
9 Then I'll call on the staff after that.
10 MR. BAXTER:
What we're addressing or what Mr.
l 11 McGranery was addressing is basis No. 13 in ECO's f
i l
12 decommissioning funding plan contentions, which allege that i
1 13 our funding plan is premised upon an unreasonably high
\\
14 growth through interest earnings at rates that ECO contends l
lO t
l 15 are unrealistically high.
l 16 There was no -- in the original ECO contention, 17 there was no mention of what the interest rate was, no l
J 18 countervailing assertion that a different interest rate was l
19 appropriate.
In response, in our written filings on April 1 20 and thereafter by the staff, we pointed out that what'the 21 plan assumes is a real rate of return of 3.2 percent above 22 inflation.
I 23 While we assumed an eight percent rate for those 24 earnings, we also assumed an inflation rate of 5.1 percent, 25 which, as it turns out, is probably too high.
But the ANN RILEY & ASSOCIATES, LTD.
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important thing to look at is the real rate of return.
O i
2 We complained yesterday because-Mr. McGranery was 3
adding on the spot instant economic analysis and doing 4
calculations off the back of an. envelope and attempting to 5
provide bases that had not been provided before, and that 6
that put the staff and licensee at a disadvantage and that's 7
one of the reasons the Commission requires that bases be 8
articulated in the original pleadings.
1 9
I'd like to illustrate why it is dangerous for the 10 Board to rely upon ECO counsel's instant economic analysis.
11 What Mr. McGranery did yesterday, and we have new Wall 12 Street Journal testimony today, but,. yesterday, he was using:
13 the 1992 annual report, which has a passage.that indicates 1
14 that at the end of 1992, the district's trust fund was 113 1
15 million, including $6.3 million of accrued interest.
16 He took that and calculated that we were, 17 therefore, achieving a. return of roughly four percent on our 18 investment.
Now, not being a financial analyst myself, I 19 was unable to respond, but I have overnight spoken to the 20 district treasurer about the meaning of that statement.
l 21 In fact, what that statement means, and'I'm sure 22 Mr. McGranery was not aware of this, is that as of December l
23 31, 1992, the district had owed to it, but not yet received 24 on its investments $6.3 million in interest.
{
25 Interest that had been received during the year ANN RILEY & ASSOCIATES, LTD.
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565-1 was already reinvested in the fund.
It simply means there 2
were some bond coupons that were due us on that date that t
3 had not yet been physically received.
4 So the $6.3 million in no way represents the 5
return that's being achieved on the invested money.
What I 6
have asked the district to send to me, then, and what I've 7
distributed now to the Board and the parties is information t
8 on the actual return that's been achieved since December 1
l 9
1931.
The last page is for the entire year of 1992 and if 10 you look under equivalent yield, it shows that the trust 11 fund earned 7.47 percent.
12 For the first two quarters of 1993, the numbers 13 are 6.84 and 6.8 percent.
So had the Board relied upon Mr.
14 McGranery's calculation yesterday of four' percent, it would l
15 have been very unfortunate.
The real numbers are something 16 quite different.
17 Now, we did not provide this information before 18 because we had not been given this assertion of basis by ECO 19 in its original filing.
It's very difficult to convert a l
20 prehearing conference into this kind of an opportunity.
t i
21 What I would like the Board to do is, to the 22 extent it needs independent, professional, outside and 23 objective analysis of the district's financial condition, to 24 look at what the bond rating agencies have written.
That's f
25 to our response of April 1 to ECO's i
O-i ANN RILEY & ASSOCIATES, LTD.
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contentions.
2 Those bond ratings were filed with the.NRC in November of 1991 and were in the public document room and j
4 available to ECO long before they filed their contentions 5
and they did not address them.
i 6
This information that I have just handed out shows 7
that we are achieving a real rate of return that's very I
8 close to 3.2 percent.
Mr. McGranery yesterday made the-9 assertion that inflation was running at 3.8.
I don't know i
10 whether that's right or not, but we're certainly within-I 11 three to 3.2 percent of that number, if that's correct.
)
12 JUDGE COLE:
Just one question, Mr. Baxter.
13 Looking at the Page 1, which is the summary of earnings, 14 December 31, 195'1 to December 31, 1992, you have a par value O
15 of over 167 mill;.on, and I look at the summary of earnings 16 for December 31, 1992.to March 31, 1992 and I see a par i
17 value of $37 million less.
18 MR. BAXTER:
Par values and cost values are very 19 awkward and hard to construe numbers when you're looking at 20' statements like this.
When one purchases bonds.and various 21 other kinds of financial instruments, they often come with i
22 par values that are hoped to be achieved somewhere down the 23 road..
l 24 I asked why the cost column varies from period to 25 period and that's because during the reporting period, some ANN RILEY & ASSOCIATES, LTD.
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of these securities will be matured and, in turn, the' money 2
reinvested in another security.
So that the costs will be 3
indicated in a doubling way on the second. column.
That's 4
why there is a change from year to year in the cost.
But 5
the important information is the last three columns, which 6
give what the actual return is.
7 As we reported yesterday, at the end of 1992, we 8
were at $113 million, which is exactly on target with the 9
fund accumulation table we filed-in May of 1991.
10 MR. McGRANERY:
If I may, I find this a.very 11 interesting table and I think that it shows that we can 12 probably get a good record here.
But one of the issues that 13 sort of mystifies me is that according to the' annual report iO
-- that is the 1992 annual report that we just got -- it 14 15 states as of -- at December 31, 1992, the district.had 16 collected and funded in an. external trust approximately $113 17 million.
18 When I look at the page numbered one here, which 19 is from December 31, 1991 to December 31, 1992, that should 20 show the balance as of December 31, 1992.
We don't see $113 j
21 million.
We see under par value 167 and under cost 159.
22 MR. BAXTER: I just explained that, Mr. McGranery.
23 I just explained that a few minutes ago.
Par value is not 24 cost and is not a reflection of the money invested.
In some 25 of these categories, during the course of the reporting ANN RILEY'& ASSOCIATES, LTD.
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1 period, from December 31,'1992 to. December.31, 1992, the-l O
2 various securities or investments matured and were 3
reinvested.
4 MR. McGRANERY:
Right.
5 MR. BAXTER:
So that the cost is included twice in 6
this column.
It is not a reflection of how much money is in-7 the fund at the end of 1992, which, in fact, was $113 i
8 million.
It means there were investments purchased over the 9
course of the year, which,Eif you just added them all up, 10 totalled $159 million.
i 11 MR. McGRANERY:
I see.
And is the term in days?
i 12 MR. BAXTER:
I'm sorry' 13 MR. McGRANERY:
There is a column called " term"
-s 14 and I was wondering whether that's stated in days or what?
j l
15 MR. BAXTER:
I confess that's one column I didn't 16 ask about.
I don't know.
17 MR. REIS:
Your Honor --
18 MR. McGRANERY:
If I could make just one other L
19 observation on this.
That is that these charts do show a 20 rapidly declining yield curve.
The first one was 7.47 21 percent, then down to 6.83, and now down to 6.80.
Of l
22 course, we don't know what the most recent one is.
1 23 But the difference that -- if one compares and 24 contrasts the assumption in the. decommissioning plan of 25 eight percent and the current yield of 6.8 percent, the ANN RILEY & ASSOCIATES,-LTD.
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1 shortfall is smaller, but on $100 million over ten years, 2
the shortfall would be another $23 million or about two 3
years' worth of contributions, just comparing an annual
(
4 compounding of eight percent with the annual compounding of f
5 6.8 percent.
l i
6 MR. BAXTER:
Mr. McGranery ignores the real rate l
7 of return, which is 3.2, which is at issue.
We also assumed-8 an inflation rate of 5.1.
To the extent that that has gone 9
down, our cost of decommissioning will be much less.
l 10 MR. REIS:
Mr. Chairman, this shows the terrors, I 11 might say, of looking at something outside the written l
12 pleadings.
Depending upon the instant analysis, whether it 13 be Mr. Baxter's or Mr. McGranery's, the contentions have to
[
14 be weighed on what they say in the contentions and whether l
O t
15 there is a basis and specificity for'it in'the regulations.
16 To supplement it at this hearing,'when one person 17 brings in one set of figures, somebody brings in another set i
l 18 of figures, points to a very, very pernicious situation that 1
l 19 could arise here.
So we have to say on the basis of the i
20 contention and reading the contention alone, is there a
[
l 21 proper contention before this Board.
)
l
\\
22 If we get into this sort of stuff or what Mr.
23 McGranery is saying, it's very, very pernicious.
24 JUDGE BECHHOEFER:
Maybe we should put Mr.
25 McGranery and Mr. Baxter under oath and find out who-is the ANN RILEY & ASSOCIATES, LTD.
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1 better qualified accountant.
l 2
MR. REIS:
That might be one way to go, but I.
i 3
think the better way to go would be to limit consideration 5
4 only to the matters stated in the contentions and the l
i 5
answers to the contentions, and no other matter that some i
6 attorney may come to bring in here.
j 7
MR. BAXTER:
I agree with~Mr. Reis.
I do not
]
8 purport to be an economist and that's why I recommend to the 4
9 Board the bond rating agencies and their reviews that have 1
10 been supplied on the record.
s 11 JUDGE BECHHOEFER:
I was being a-little facetious 12 by that.
I 13 MR. McGRANERY:
The staff counsel's analysis would i
14 reduce these proceedings to a nullity, making them l
O 15 unnecessary.
The purpose of this prehearing conference is 16 to supplement and clarify what is in the pleadings.
17 I have no quarrel with their refined presentation 18 that Mr. Baxter made.
I think that it only emphasizes the l
19 current declining yield curve and the difference between
)
20 their initial assumption of eight percent and the current.
21 reality of 6.8.
22 MR. REIS:
Mr. Chairman, I can, as well, testify 23 in my greatest ability as an economist to say next year it's 24 going to be ten percent, and I will have just as much sense 25 in saying that it declined for three years.
We won't know ANN RILEY & ASSOCIATES, LTD.
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if bond markets go up and down.
f
~!
2 So next year maybe it will be ten percent, maybe l
1 3
it will be 12 percent, maybe it will be two' percent.
We 4
have to look at it as to what was given in the papers.
Y e s,-
l 5
Mr. McGranery can show that some statement was made that was 6
wrong.
He has an opportunity to respond.
7 But what we judge is his written submissions, not i
8 how he might supplement it here.
He can show that we said I
9 something unfairly that was not there or that meant i
10 something else, but he cannot come forward.with new l
11 information and have new information there, especially on' l
t 12 economic matters such as this.
13 We can all testify as to economics and what we do i
14 and we do every day and we lose money every day,' switching 15 from stocks to bonds and bonds to stocks, and we all do that j
16 and manage to lose money.
[
17 But that has nothing to do with'whether these 18 contentions are proper contentions and are properly drafted 19 to be admitted into this proceeding.
That is the question 20 we have.
21 MR. McGRANERY:
I think that I can understand why 22 staff counsel, given what he said, might want to avoid these 23 issues, but the fact is that this is not a game.
This 24 prehearing conference has a purpose.
It is to clarify the
]
25 issues and to allow the supplementation of the presentations ANN RILEY & ASSOCIATES, LTD.
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previously made in writing.
2 If that were not the purpose, there would be no 3
need for them.
What we have here for the panel to consider 4
is an extraordinarily important issue where a funding plan, 5
whether it is currently inadequate as a total goal or not is 6
a separate issue, where a funding plan is dependent upon an 7
interest rate growth assumption that is wildly out of tune 8
with current reality.
q 9
I think in this Board's responsibility to help
-l 10 assure the health and safety of the public, it should 11 consider and the applicant should be grateful.for its 12 consideration of a new funding goal based on responsible 13 judgment of current interest rates.
14 It's true they can offer experts as to future 15 i.'rerest rates, if they wish, but we can show right here and 16 now that their current planning basis is way out of line 17 with reality and is going to penalize the residents of the 18 district in the future if not corrected now.
19 MR. BAXTER:
Mr. McGranery, repeating the 20 statement doesn't mak.e it valid, when the information shows 21 that we are achieving real rates of return that are very 22 consistent, given the inflation that's being experienced l
23 today.
24 JUDGE BECHHOEFER:
I think we probably have enough 25 on that contention to evaluate it and decide one way or the ANN RILEY & ASSOCIATES, LTD.
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other.
I guess we ought to talk.a little bit about future O
i 2
schedules.
We've gone through all the contentions now, if i
(
3 I'm not mistaken.
i 4
We perhaps should call for future schedules.
If 1
5 we should decide that any of the contentions are admissible, 6
are the standard discovery periods, etcetera, satisfactory, 7
as stated in the rules?
Presumably, if we allowed a 8
contention, we'd permit some discovery then.
9 MR. McGRANERY:
Would it be appropriate for the 10 licensee, the staff and the Intervenor to discuss that 11 matter and advise the Board?
12 JUDGE BECHHOEFER:
Yes.
In fact, you could wait 13 till after we render any decision one way or the other.
14 MR. BAXTER:
That would be my preference.
15 MR. REIS:
Because until we know -- first of all, 16 we might be talking about nothing.
Secondly, until we know i
17 the scope of the issues that are here and what those issues J
l l
18 are, we don't know what a reasonable discovery schedule i
19 might be.
20 Now, the Commission's rules really don't set forth 21 a particular time.
It's once you reply to discovery, but i
22 not when the question is not in there.
l i
23 JUDGE BECHHOEFER:
We would probably want to --
24 MR. REIS:
Yes.
It would be well to do it at that 25 time.
O-ANN RILEY & ASSOCIATES, LTD.
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574-1 JUDGE BECHHOEFER:
-- maybe even by telephone 2
conference.
i 3
MR. REIS:
Yes, something like that.
But until we j
' l 4
know what we're talking about, there's no basis to address l
5 that now.
l t
6 MR. McGRANERY:
For the first time, I fully concur i
7 with staff counsel.
j 6
8 MR. BAXTER:
As does the licensee, but not for the l
9 first time.
l l
10 JUDGE BECHHOEFER:
Now, is the prescribed schedule
{
11 for responses to this 749 satisfactory as far as you are 12 concerned, Mr. McGranery, for the motion that's been filed?
13 MR. McGRANERY:
Yes.
14 JUDGE BECHHOEFER:
If that's satisfactory,'we'll l
()
15.
Just leave it.
16 MR. McGRANERY:
Yes.
I believe it is due this I
I l
17 coming Monday.
Am I correct?
l 18 MR. REIS:
Correct.
19 MR. McGRANERY:
That is perfectly adequate.
20 MR. REIS:
It's adequate.
21 JUDGE BECHHOEFER:
One other question.
If we 22 should approve a contention or if an existing contention is 23 not disposed of on summary disposition, we would plan to at 24 least start the hearing in or around Sacramento, I hope 25 that's no problem, on schedules to be discussed.
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We think that if a Commission proceeding goesEto a 2
hearing, the people in the locale -- and I'm saying we 3
should just start it, the first day or two perhaps, take 4
limited appearances at the start of the proceeding, f
5 I think the persons who live in that neighborhood j
6 of the facility have not a legal right, because the-7 Commission doesn't specifically require it, but I think it's 8
in the public interest to at least have some aspect of the.
9 proceeding near the locale where the reactor is located.
)
10 Unless there is strong disagreement, we certainly
{
11 could hold most of the hearings in Washington, probably j
i 12 right in this room.
But I think some -- usually, the l
13 beginning of the hearing should be in the vicinity of the t
14 site.
(:)
i 15 I'm asking for comments on that.
That's my
(
16 preliminary reaction.
I 17 MR. BAXTER:
Mr. Chairman, for the licensee, I 18 don't think we can take a position now on where we would I
19 propose a hypothetical' hearing be held.
I think it would l
20 come as an instructive shock to the community around Rancho f
i 21 Seco and Sacramento to find out that there is still 22 litigation going on about Rancho Seco some four-and-a-half 23 years after it's been closed and they might find-the very 24 concept of a Federal agency debating whether or to clean up 25 this plant to be-astounding.
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1 But until we know what issues there are and what 2
kind of expertise might be required, I can't comment on 3
whether or not we would agree to hold hearings here in l
4 Washington.
It is typical that the hearings are held, as i
5 you pointed out, near the reactor site.
6 JUDGE BECHHOEFER:
Yes.
I was referring that l
l 7
perhaps an entire proceeding should not be held away from a 8
site.
Some connection with the locale, I would think-there l
l l
9 should be some.
But that's just maybe a personal view.
I l
10 know the rules do not require that hearings be held in any l
11 particular place, other than for the-convenience of the 12 parties.
I
(
13 MR. McGRANERY:
The only thought that I would i
14 offer at this time is that it would be a considerable I
I 15 expense to transport nine to 11 or 12 of us out to l
16 Sacramento.for a day or two and then back here.
By the way, 17 I'm not saying that we should, therefore, stay there for a j
i 18 month.
19 The thought that I had was that perhaps there 20 would be some way of gauging whether there would be any 21 public interest in making a presentation or a limited i
22 appearance in our proceeding.
23 While I concede that, as counsel for the licensee 24 said, there may be people out there who would be aghast that 25 this matter is still being argued, there may be people out I
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577 1
there who would be.very encouraged that it's still being 2
argued, and there's also a third possibility that both sets 3
are null sets, that no one would care.
4 If there were a way to judge whether there is any 5
public interest or invite public interest'to see whether 6
there would be a purpose served by going out there~, perhaps
.7 we might try that path first.
8 MR. REIS:
Your Honor, it's the --
9 JUDGE BECHHOEFER:
We will, of course, in the=
10 notice of hearing which I mentioned we would issue, we will 11 invite limited appearance statements.
That's-common 12 practice.
I guess we won't mention anything about the 13 possibility of oral statements at this time.
'l 14 MR. REIS:
Your Honor, in even discussing.this
'([)
15 matter, I'm afraid we're prejudging matters. -Aside from 16 that -- and I take'it back.
I realize that you have said 17 you haven't decided upon any contentions and whether they're 18 coming in, but even discussing where a hearing might be held 19 at this time, I think, is a prejudgment, an indication of l
20 prejudgment.
21 I hope I'm wrong.in looking at it that way.
But 22 let me also say that the staff feels very strongly that any 23 hearing should be, at least in part, conducted in the-24 vicinity of where the action has taken place.
The Federal 25 Government is far removed in Washington from Sacramento and O
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]
1 if any real action is to take place and any public hearing
)
2 is to take place, we certainly feel that part'of it at least l
3 should be in Sacramento.
?
)
4 JUDGE BECHHOEFER:
That was the thought I l
5 expressed when I wanted to open it for comment while you I
6 were all here.
We very likely won't have another at least i
7 formal prehearing conference.
I 8
Is th;re anything further that anyone wishes us to-i 9
cover befo'.e we adjourn?
10
[No response.]
11 JUDGE BECHHOEFER:
I might.say that under the 12 Commission's rules, as I read them, at least, any order we 13 issue will not be appealable as of right.
One contention i
i 14 has been admitted and further contentions, one way or the l
O 15 other, probably can't be appealed until after the 16 disposition of the one that the Commission admitted.
So at 17 least that's my analysis.
l
\\
18 The Commission could be asked, as a matter of i
19 discretion, to grant review of whatever we do, but I don't i
20 think there's any right to review whatever we come out with, I
21 at least the way the rules are read.
22 MR. BAXTER:
It's a question of timing.
(
23 JUDGE BECHHOEFER:
You can always appeal at --
24 MR. REIS:
Once you rule on --
25 JUDGE BECHHOEFER:
Of course, of course, of l
j ANN RILEY & ASSOCIATES, LTD.
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course.
2 MR. REIS:
You'll rule that it's appealable.
3 JUDGE BECHHOEFER:
Of course.
No.
I'm not saying 4
that.
But we're likely to issue an order on-this before we 5
rule on the summary disposition motion, although that's not j
1 6
necessarily the case.
The summary disposition motion is 7
fairly short and once we get all the papers in on it, we may j
8 be able to issue that earlier, but maybe we won't.
I don't i
9 know.
10 With that, I guess we'll adjourn for the day.
11 Thank you all for your time, a lot of it, but I think we 12 have enough so that could reach a decision.
13 Thank you very.much.
]
14
[Whereupon, at 5:00 p.m.,
the prehearing 15 conference was concluded.]
16 17 18 19 1
20 21 22 23 24 25 ANN RILEY & ASSOCIATES, LTD.
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l REPORTER'S CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission in the matter of:
i NAME OF PROCEEDING:
Sacramento Municipal Utility i
50-312-DCOM DOCKET NUMBER:
1 PLACE OF PROCEEDING: Bethesda, MD t
were held as herein appears, and that this is the
{
original transcript thereof for the file of the United States Nuclear Regulatory Commission taken l
by me and thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript is a true and accurate record of the_ foregoing proceedings.
l hf/0/1 $ /1rDtlL official Reporter l
Ann Riley E Associates, Ltd.
l l
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