ML20062A489
| ML20062A489 | |
| Person / Time | |
|---|---|
| Site: | Clinch River |
| Issue date: | 08/02/1982 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUDOCS 8208040012 | |
| Download: ML20062A489 (191) | |
Text
_ __ ______--__ __- __ .-.
p --
r - -
NUC R' REGULATORY COMMISSICN 09Ju.u - 3 l
ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
)
UNITED STATES DEPARTMENT OF ENERGY )
PROJECT MINAGEMENT CORPOPATION ) DOCKET NO. 50-537
)
TENNESSEE VALLEY AUTHORITY )
(Clinch River Breeder Reactor Plant) )
DATE: Auaust 2, 1982 PAGES: 685 thru 875 AT: Bethesda, Maryland fVf i
f N
TFo/
/'
e .uneasox^ \, atroansa _
400 virgir.ia Ave. , S .W. Washing .:m , D . C. 20024
] Talachc=e : (202) 554-2345 e206040012 e20802 PDR ADOCK 05000537 T PDH
685
() 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY CGMMISSION O 4 ATOMIC SAFETY AND LICENSING BOARD 5 -- -------------- - - -x 6 In the Matter of x 7 UNITED STATES DEPARTMENT OF ENERGY x 8 PROJECT MANAGEMENT CORPORATION x Docket No. 50-537 0 x 10 TENNESSEE VALLEY AUTHORITY x 11 (Clinch River Breeder Reactor Plant) x 12 - - - - - - - - - - - - - - - - - - -x 13 Nuclear Regulatory Commission 14 Room 550 15 4350 East-West Highway l
16 B e th e sd a , Maryland i
17 The conference in the above-entitled matter 18 was convened, pursuant to notice, at 10:00 a.m.
19 BEFOREs 20 MARSHALL E. MILLER, Chairman i
21 GUSTAVE A. LINENBERGER, JR., MEMBER 22 23 I
() 24 25 l
ALDERSON REPORTING COMPANY,INC, l
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
686 Q 1 PRESENT:
2 Representing Project Management Corporation:
3 GEORGE L. EDGAR, Esq.
4 TOM SCHMUTE, Esq.
5 Norgan, Lewis & Bockius 6 1800 M Street, N . W.
7 Washington, D.C. 20036 8
9 R e presen ting Westinghouse:
10 DAVID K. GOEGER, Manager 11 Westinghouse LMFBR Licensing 12 Coordinating Office 1 13 Westinghouse Advanced Reactor Division i
14 Bethesda, Ma ryla nd 15 16 Representing U.S. Department of Energy:
17 WARREN E. BERGHOLZ, Jr., Esq.
l 18 Office of the General Counsel 19 U.S. Department Of Energy 20 Washington, D.C. 20585 21 22 23 O 24 25 O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554-2345
687 1 Representing the Tennessee Valley Authority:
2 EDWARD J. VIGLUICCI, Esq.
3 W. WALTER LA ROCHE, Esq.
O 4 Tennessee Valley Authority 5 400 Commerce Avenue 6 Knoxville, Tennessee 37902 7
8 Representing the Natural Resources Defense 9 Counsel and the Sierra Cluba 10 ELLYN WEISS, Esq.
11 Harmon & Weiss 12 1725 Eye Street, N.W.
13 Washington, D.C. 20006 14 and 15 BARBARA A. FINAMORE, Esq., Staff Attorney 16 THOMAS B. COCHRAN, Staff Scientist
18 19 Representing the U.S. Nuclear Regulatory 20 Commissions 1
! 21 DANIEL SWANSON, Esq.
22 STUART TREBY, Esq.
23 BRAD JONES, Esq.
O 24 us n=c1eer aeo=1 torr c ==1==1oa l 25 l
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
688 Q 1 EE9CEEDIEGS 2 JUDGE MILLER: The conference of the parties 3 and counsel will come to order, please.
O 4 I think that the Board has asked for the 5 opportunity to meet with you ladies and gentlemen with 6 regard, among other things, to motions which have been 7 filed within the last week .which it is suggested can or 8 should have some bearing upon the scheduling.
9 Before we get into that, may we have the 10 parties and counsel identify themselves for the record, 11 please?
l 12 MR. EDGAR: George Edgar, attorney for Project
{
13 Management Corporation.
14 MR. BERGHOLZ4 Warren Bergholz, a ttorney for 15 the Department of Energy.
16 MR. VIGLUICCI Ed Vigluicci, attorney for 17 Tennessee Valley Authority, and Walter LaRoche, attorney l 18 for Tennessee Valley authority.
19 MR. EDGAR: I should add, seated to my right 20 is Mr. David Goeser of Westinghouse, Bethesda office, 21 and to his right, Mr. Tom Schmute of my office.
e 22 JUDGE MILLER: And the Staff?
23 MR. SWANSON: Daniel T. Swanson, counsel for
() 24 NRC Staff.
25 On my innediate left is Mr. Stuart Treby, ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
689
() 1 Assistant Chief Hearing Counsel for the NRC Staff. Also 2 joining us today but not here at the prer:en t moment is 3 Mr. Bradley Jones.
4 JUDGE MILLER: NRDC, Sierra Club, 5 Intervenors?
6 (No resonse.)
7 JUDGE MILLER: All right. The motions which 8 were brought to the Board's attention last week include 9 the Applicant's motion to enforce the hearing schedule, 10 dated 7/26/82; the Intervenors' motion to reschedule 11 hearings, la ted July 27, 1982; the Intervenors NRDC and 12 Sierra Club motion to reconsider rulings on contentions, 13 apparently delivered to the Board at least at 5:15 p.m.
14 on 7/29/82, a little after hours; and then I find on the 15 desk this morning the NBC Staff response to Applicant's 16 motion to enforce the hearing schedule; and NRDC's 17 motion to reschedule hea rings dated 7/30/82. I guess l
18 that was just deli ve red . It looks as though it was just 19 delivered.
20 NR. TREBY: Copies were put into the 21 Interagency's mail system Friday evening. We have 1
22 provided extra copies this morning in case the system 23 didn't work over the weekend.
() 24 JUDGE MILLER: I don't think it was working 25 very hard over the weekend. The Board members actually i
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
600 received it for the first time this morning. So it will
(]) I' 2 probably be coming along in a day or two by the normal 3 processes.
4 All righ t, are there any other matters which 5 should be considered by the Board and counsel in 6 addition to the things that appertain to the various 7 motions we described for the record?
8 If not, it was our plan to hear from counsel 9 in regard to the motions and the relationships between 10 or among the responses, or other sinilar motions.
11 Unless counsel feel otherwise, it was our 12 belief that probably all of the positions and 13 contentions, statements and so forth of these var'ous i 14 filings could be encompassed the first time we hear from 15 you. You will be given time of course to respond 16 insofar as any rebuttal or addressing matters on all the 17 issues concerned, but I believe unless you tell us 18 otherwise, you could probably cover the whole 19 ramification of these matters when you first are h.eard.
20 Is this correct? Does anyone feel constrained 21 by that approach?
22 MR. EDGAR: We are prepared to do that.
23 JUDGE MILLER: All right.
() 24 Since the Applicant's motion to enforce the 25 hearing schedule is first in date, we will let Mr. Edgar O
ALDERSoN REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
691
()
~
1 go first, and you may take into account, if you wish, 2 the responses to that motion or the recently filed g 3 Staff's position.
d 4 MR. EDGAR: Mr. Chairman, Judge Linenberger, 5 we believe there are two issues presented by all of 6 these filings. The first is is there any bar to 7 proceeding to hearings on schedule. The second issue 8 is, if there is no bar, what is the scope of those 9 h ea ring s ?
10 Now, by way of introduction to the first 11 issue, that is, is there any bar to go to hearings, I 12 would like to make some basic points. The first is that 13 we read in NRDC's motion to reschedule as taking a flat 14 position of avoiding hearings at all costs. The 15 fundamental predicate of that motion is tha t the Board's 16 rulings on Contentions 1, 2, and 3 cannot be 17 accommodate. We believe that that basic position stems 18 from NRDC's misreading of that ruling, and we will 19 proceed to demonstrate that fact.
20 The point here is that if NRDC is not prepared 21 to go to hea ring, they should not at this juncture be 22 able to take advantage of their own mistake in -
23 misreading the Board's order. We believe that the
() 24 Board's scheduling order is clear and unmi s ta kable .
25 NRDC's obligations under that schedule have been in O
ALDERSON REPORTING COMPANY,INC, 400 VIRGIN!A AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
692 1 place since February of this year. It is their burden
{}
2 to initiate any last minute discovery on new matters, 3 make a reasonable showing of need on those matters, and O 4 proceed to complete dis =overy. They have done none of 5 these things.
6 In reality, they are asking for a time 7 extension, and for the reasons which I will demonstrate, 8 they have shown no good cause.
9 The real question that we must address today 10 is tow do we get to hearings. That is the practical 11 question. The corollary to that is also what evidence 12 can and should we take at those hearings? These 13 hearings are going to involve the taking of evidence.
( 14 There will not be a final decision coming out of these 15 hearings in the initial phase.
16 Under our suggestion for the motion to enforce l 17 the schedule, we would contemplate going to a first I
( 18 phase of hearings on certain issues related to site l
l 19 suitability and other. issues as to which there will be l
l 20 no strong dependence on the FES.
21 Now, given that framework, the second phase of
~
22 hearings could then accommodate any Staff testimony that l 23 would come on af ter the first phase.
Ac we see it, there is only one operative rule
(]) 24 25 here of sig nif ica nce . The NRC case law is quite clear, l
()
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
693
() 1 tha t bif urca ted hea rings are permissible. We think that i
2 all parties, including the NRC Staff, can go to hearings fg 3 on all site suitability issues. Those issues have their 4
(/ ;'
4 foundation in the Atomic Energy Act. They are entirely 5 independent of the FES, and there is absolutely rio bar J
6 to proceeding on those issues. ' '
7 There is another set of issues which I will l 8 proceed to discuss in some detail which are of an 9 environmental nature, if you will, which we also think 10 there is a substantial basis for proceeding on. But the 11 basic point is that Applicants and Intervenors can and 12 should go to hearing on all contentions as scheduled.
13 They should present their evidence. Then if there is 14 any need to reopen, that can be done in Phase 7.
15 Now,'I would like to proceed to consider some
~
16 of NBDC's arguments. The first argument thay NRDC makes 17 is that all parties and the Board agreed originally tha t 18 supplementation would require a "n ew schedule. "
19 JUDGE MILLER: Pardon me. Which are you 20 referring to, now? You were reading, and I think that 21 the NRDC has filed two motions.
22 MR. EDGARs Yes. The first motion is the 23 action to reschedule hearings. That is the one I will
() 24 address first because I think, Judge Miller, that that 25 one goes to the question of whether you can go to O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. o.C. 20024 (202) 554 2345
,i i
694
'1
. j
(} 1 hearingi, not to scope necessarily. It deals with scope 2 in a much lesser sense.
3 The first point is that at the time the s-4 schedule was developed, the Board quite properly -- and 5 it said on tegnscript page 1132 that if the issue of 6 reschedulingi were to;, presen t itself , then a 7 r e- ovaluation1 co uld be undertaken possibly at a 8 preheaping conference. That does not mean that the i
9 parties automatically expected that the schedule would 10 be invalid. The schedule can be adj usted, as we have 11 explained in our motion, to enforce the schedule.
12 The first a- at basis for NEDC's argument 13 beyond this is that 1. CFR 27.61(a) requires completion (s_D
/ 14 o an FES before LWA hearings may, commence. They read 15 that regulation s's prohibitive. This, we suggest, is a 16 totally invalid reading of 10 CFR 27.61. It is not by 17 its terms prohibitive. If you go back _to the original l ,
18 sta tement of intent in the rulemaking notice, that is at 19 39 Fed. Reg. 14.507, April 24, 1974, and in particular, 20 look at page 14.508, the underlying policy of 27.61(a) 21 is to reduce the time required for licensing. If you (
22 read 27.61(a) r a tion all y ,' t it merely sets the minimum 23 time to get to hearing. Indeed, its real effect and its
! l
() 24 real underlying policy is exactly the opposite of what 25 NRDC has suggested. Here we have an FES. Here we have l O
6 t ALDERSoN REPORTING COMPANY,INC, e
\
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
.z -
3
, 695
.. i
- 'l $ ,
'I s
,) 1
- . t
, ? . I a recirculation, b t'27.61 is by no means c' !
2
~
- i
- prohibitiya.
3 You will alrp find authority in M Elas Punt O 4 for thst proposition.
ou'will 3ee that in Douglas r
- 5 Point they were not seeking am LWA as NRDC correctly J ,'J j ..
,j 6 points out. However, they proved the wrong point f rom
/G.l
. / ,.
/
// 7 that. The point is that ;<'
in h ginL 2212.t;'they were
/
er --
involved in site suitability israes'. ' That case quite -
58 ,
r
,9 clea~rly stands for t'he proposition that (site \ suitability .
i 10 issues can be considered independent of the ,FES.
11 The second point they make is that 10 CFR 12 51.52 (a ) d oes not a ppi,ty to an LWA hearido, that 27.61(a) 13 overrides. That is not so. The Staff's response 14 explains that point quite clearly. The Staff dhes not 15 belabor the point. The Staff aerely points out that 10 d
16 CFR 51.52 does not involve findings. NRDC attempts to 1
= 17 cross referenc.e 50.10(e) into 51.52(b) and (c).
, 1/
( 16 , f [, '5N.52(b) and (c) involve findings. Only I / ! ,
l 19 sensections 51.52(b) and (c) contain findings which need l
20 to be made. 51.52(a) contains no findings, and it is 21 quite appropriate that 50.10(e)(2) does not reference 22 that subsection when discussing findings.
23 We submit that the attempt to use 27.61 as a O 24 oroniditioa is suet aot - etter or cooa co oa e== -
25 and it is in direct conflict with th e policy underlying O
ALDERSoN REPORTING COMPANY,INC, l
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
696 1 the rulemaking.
2 Likewise, neither NEPA nor the CEC guidelines s 3 prohibit a hearing before the FES is completed. NEPA 4 forbids major federal action before the FES. Early 5 consideration of site or any other issues in a hearing 6 is not a major federal action. The C1CL2Ll_ County case, 7 12 NRC at 25 supports that proposition.
8 The CEO guidelines are in fact not either 9 prohibitive. All the CEO guidelines say is the FES 10 shall "normally" precede a final Staff recommendation 11 and the portion of the hearing related to the impact 12 study. Those guidelines clearly contemplate discretion 13 and departure from the normal case.
14 We think that the question of whether the 15 issues are intertwined or whether they can be considered 16 independently is an issue which this Board is entirely 17 qualified to make and this Board should make as a matter 18 of its discretion. We believe that we can go through 19 each con tention and show with very little difficulty
! 20 that indeed we can go to hearing as scheduled on a l
21 substantial number of issues.
22 We shouldn't forget that what we are talking 23 about is going to hearing on all issues by NRDC and j
l
() 24 Applicants, and then the question is scope as to Staff 25 testimony. There is no possible denial of due process O
ALDER $oN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
697
() 1 here. NRDC will have a full opportunity to cross 2 examine.
r- 3 If there is a reason and if there is a factual
(
4 basis to requestion, if new evidence appears in the 5 final supplement, that is fine. That can be picked up 6 in Phase 2. We cannot at this juncture reach a 7 conclusion that NRDC would be prej udiced before all 8 procedures have run their course.
9 The additional point we think is warranted for 10 the Board's consideration involves the motion to 11 reconsider Contentions 1, 2, and 3. What we find when 12 we strip down the arguments presented on Contentions 1, 13 2, and 3 is the real issue. What NRDC is really saying 14 is that Appendix J of the FES raises new matters. If 15 that is so, the solution is to undertake new matter 16 discovery. As I previously indicated, NRDC has not 17 initiated discovery, has not made a reasonable showing 18 of need, and has not fulfilled its oblications under the 1
19 schedule.
I 20 If you look at Appendix J, the first page in 21 the FES supplement, there is an interesting statement 22 which the Staff makes. In the first pa ra g ra ph , second 23 sentence, the Staff says, "The Staff finds that no plant
() 24 site changes have occurred that are significant to 25 accident risk environmental concerns nor is there O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
698
(} 1 significant new information relevant to environmental 2 concerns that bears on the environmental impacts or 3 risks of accidents as reported in the FES."
O 4 This stands quite at odds with NRDC's rather 5 lengthy discourse on Contention 1, 2, and 3. We submit 6 that on its f ace there is absolutely no rea son why we 7 cannot proceed to hearing. Moreover, there is 8 absolutely no reason to reconsider the rulings on 9 Contentions 1, 2, and 3. There is no real conflict with 10 the Board's ruling. There is a conflict with NRDC's
- 11. unreasonable interpretations of that ruling.
12 ,
This is not a reason to postpone the 13 hearings. I may be a reason for additional discovery,
( 14 but NRDC has not taken the actions to undertake and to 15 com plete additional discovery.
16 With that, Your Honor, we would suggest two 17 things first, that the Intervenors and Applicants can 18 go to hearing on all issues as scheduled. There is no 19 bar of any kind to that. The second point is that the 20 NRC staff may proceed to hearing on schedule on all site l
21 suitability issues. That is essentially Contentions 1 22 and 2. Included therein is Contention 2(e) which raises 23 the adequacy of the NRC Staff's recommended Part 100.11
() 24 dose guidelines. There is no disagreement amongst the 25 Applicants or the NRC Staff to that extent.
O ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554-2345
699 1' The Staff also indicates that they are willing
(])
2 to go to hearing and believe that they should go to 3 hearing on Contentions 5(b) and 7(a)(b). We agree, and O 4 the Staff's filing adequately presents reasons f or 5 that.
6 As a footnote to the S taff 's position on l 7 Contention 2(e), as I have indicated, 2(e) raises the 8 isc.ue of the adequacy of dose guidelines. When those 9 contentions were filed, NRDC conceded on the record tha t 10 2(e) echo is coextensive with 11(d)(1)(2). So to that 11 extent, the same subject natter would come in under 12 either contention.
l 13 We think there are additional reasons why a 14 broader scope of con ten tions can be considered than 15 those which the NBC staff has indica ted their agreement 16 with.
17 I would like to briefly summarize --
18 JUDGE MILLER: You are off the air (indicating 19 the microphone).
20 HR. EDGAR: I would like to briefly summarize 21 the basic contentions and the reasons therefor.
22 We have indicated our rationale in our motion 23 to enforce the hearing schedule, and the specific
() 24 reference therein is to pages 15 through 18 of our July 25 26 motion to enforce the schedule. We think if the O
ALDERSoN REPORTING COMPANY. INC, 400 V:RGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
700 1 Board examines the criteris in Douclas Point, namely,
)
2 whether there is s likelihood that any early findings 3 would retain their validity in light of the O 4 recirculation, the advantage to the public interest of 5 early resolution, and the extent to which hearings on 6 the issue would particularly, if the issue were later 7 reopened, occasion prejudice to one or more litigants.
8 There are several initial points which we would like to 9 call to the Board's attention in this regard.
10 The first is we are not talking about early 11 findings here. We are talking about the taking of 12 evidence, and thus the question of whether findings 13 would retain their validity is not a controllino
} 14 question under the circumstances of this case. However, 15 even if it were, because we contemplate a two phase 16 hearing schedule, if something should occur in the FES 17 recirculation process which would require additional 18 inf orma tion or additional supplemental testimony, that l
19 can be accommodated because it is very likely that we 20 will have a one-month gap between Phase 1 and Phase 2.
I 21 The second point to make is that NRDC's
! 22 information on all contentions has been available to the 23 Staff at the time they drafted the supplement. The
() 24 Boa rd should recall that NRDC had discovery filed 25 against them and they were under an obligation to O
i ALDERSoN REPORTING COMPANY,INC, I
l 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
701
() 1 present all of their evidence in regard to their 2 testimony and contentions prior to completion of the FES 3 supplement.
4 If they have responded, then there should not 5 be anything new which comes out during the recirculation 6 process from NRDC.
7 Now, with those two introductory points, we 8 ' proceed to consideration of those issues which can be 9 considered by all parties at the initial phase of 10 hearings.
11 Now, we have already indicated that both NPDC 12 and Applican t should present all of their evidence. Now 13 the question is on what issue should the Staff present 14 their evidence.
15 The first is design alternatives, Contentions 16 7(a)(b). Here there is no change in the FES. There is 17 no additional information in the supplement which was 18 not there originally.
19 We think that there is a good rea son why we 20 can proceed to present all evidence on site selection.
21 The NRC Staff's analysis differs only in format from 22 prior analysis. The staff has employed the NRC's 23 proposed rule on an alternative site. This sets up a
() 24 formalism for analysis of alternative sites, but the 25 substantive information does not differ.
O ALDERSoN REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
702
(} 1 Secondly, there is only one new site, if you 2 will, presented in the analysis that was not previously 3 considered. Thst site was mentioned in the prior FES, 7-V 4 but now it is more fully analyzed.
5 We think in the total context of this site 6 selection analysis, that the addition of one new site is 7 not a significant difference. ,
8 JUDGE MILLER: Pardon me. What issues or 9 subissues do the Applicants contend that the Staff's 10 evidence should proceed on as well as that of other 11 parties?
12 MR. EDGARs That is what I am addressing now.
13 I am sorry I did not make myself clear.
( 14 Our proposal is that the Intervenors and 15 Applicant go on all issues. Now the question is what 16 does the Sta ff go on?
17 The first thing is that the Staff can go on i
18 and the Staff agrees to go on Contentions 1, 2, and 3 19 and including 2(e), which is the validity of dose 20 guideline values.
21 Now, going beyond that point, there are a 22 number of additional contentions where we can go to 23 hearing. The first.is Contention 5 and 7(c) dealing
() 24 with site selection. We think that the change in 25 information is in fact insignificant and there is no O
ALDEESoN REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W WASHINGTON, D.C. 20024 (202) 554 2345
703
() 1 reason why the Staff cannot present its testimony.
2 Remember that when the Staff presents its testimony, the 3 Staff is not going to be making final considerations.
4 The cost-benefit is unaf fected, and indeed, is still 5 open. We think that the parties can proceed on l
6 Contention 5(b). That deals with the effects of CRBR on 7 nearby facilities, namely, the Oak Ridge Gaseous 8 Diffusion Plant, Oak Ridge National Laboratory, and the 9 Y-12 facility. That issue itself is independent of the 10 analysis, and there is no reason why we cannot proceed 11 to hearing.
12 The next issue is the decommissioning.
13 Decommissioning is a question which is straightforward.
. 14 It is finite. There are no new issues in the draft i 15 supplement relative to decommissioning. The basis for
~
16 it is generic studies f rom PWRs and BWRs, and there is 17 simply no reason why any findings there or any evidence 18 there would be affected by the supplement.
19 JUDGE HILLER: Is that Contention 8?
20 HR. EDGAR: That would be Contention 8. The 21 site suitability contentions I mentioned first would be l
l 22 1, 2, 3 and as footnote to that, 2(e) is the dose 23 guidelines, which is coextensive with 11(d) dog (1)(2).
() 24 The next one where we think we can go to 25 hearing by all parties is health effects, namely, O
ALDER $oN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
704
(} 1 Contentions 11(b) Baker and (c) Charlie. Contentions 2 11(b) Baker and (c) Charlie involve the analysis of 3 residual risk and consequent genetic and somatic efects O 4 of operationg CRBPP in compliance with existing NRC 5 radiation protection standards.
6 There are two components to this analysis.
7 The first involves what are the doses. What doses do 8 you expect from operation of CRBRP in accordance with 9 NRC requirements? Those doses would be analyzed and 10 developed in the FES.
11 We think, though, we can decouple the doses 12 from the question of given a dose, what health effect do 13 you expect to occur? What is your estimate of a given 14 health effect per unit of dose?
15 We thus think that we can proceed to hearing 16 on that portion of 11(b)(c) tha t relates to, if you will 17 excuse the term, the multipliers that one would multiply l 18 times doses to arrive at health effects.
19 In summary, then, we believe that there is no 20 reason why the parties cannot proceed to hearings on 21 Contentions 1, 2, 3, 5, 7, 8, and 11. Following the 22 hearing on those contentions, the second phase would be l 23 developed wherein the NRC Staff would present their
() 24 evidence, and their evidence would be taken concerning 25 Contentions 4, which is saf egua rds, and 6, which is fuel O
ALDER $oN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
705 O crc 1e-2 We thus submit to the Board that th e real 3 issue is not whether we should go to hearing as 4 scheduled but rather what is the proper scope of that 5 hearing. We submit that all parties can go to hearing 6 on all site suitability issues, that the Applicants and 7 Intervenors can go to hearing on all contentions, and 8 that the NRC Staff can go to hearing on Con ten tions 1, 9 2, 3, 5, 7, and 11.
10 11 12 13 14 15 16 17 18
, 19 l
20 21 22 23 24 25 O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 l
706
() 1 And 8. I am sorry I missed 8 from the Energy 2 Department.
3 JUDGE MILLER: Does that conclude your 4 argument?
5 MR. EDGARa Yes, Your Honor.
6 JUDGE MILLERS All right. I suppose we should 7 hear, then -- does the staff want to go next or 8 following? It really doesn't matter to the Board.
9 MR. TREBYs The staff will go next.
10 J udge Miller, the staff agrees in most parts 11 wi th the arguments which have been made by applicant's 12 counsel, Mr. Edgar. We agree that the two issues before 13 the Board are whether we should go to hearing and, O 14 secondly,,1f so, wha t is the scope of the hearing.
15 The staff strongly supports the view that we 16 should go forward to the hearing on schedule beginning 17 August 23rd. We agree that certainly, both the i 18 applicant and the intervenors can go forward on all the 1
l 19 issues presented. The staff can go forward on certain 20 of the issues since they are not dependent on our 21 analysis in the FES. Those are Contentions 1, 2, 3, 22 5(b), 7(a) and (b).
23 To go back for a moment, the staff did file
() 24 its response dated July 30th, 1982, which addresses our 25 position as to whether the hearing should go forward on i
O ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
707
() 1 schedule. I believe that essentially, it responds to 2 the points which NRDC made in its argument as to why the 3 hearing should be rescheduled; namely, their readings of 4 the regulations dealing with LWAs and their reading of 5 Section 26.71(a). For the reasons set forth in our i
6 document, we disagree, and Mr. Edgar has, in fact, 7 summarized our views on those matters in the course of 8 his arguments.
9 We also agree with Mr. Edgar's arguments as to 10 why the fact that we have issued Appendix J should not 11 change the Board's rulings with regard to the scope of 12 Contentions 1, 2 and 3, which leaves us the question as 13 to which issues the staff can go forward with in the 14 hearing scheduled to begin August 23rd.
15 As I have previously indicated, the staff 16 believes it can go forward with Contentions 1, 2 and 3 17 which deal with the site suitability issues. The staff 18 does not believe that we can go forward with Contention 19 a until the staff has issued its final supplement to the 20 FES. Contention a deals with the question of 21 safeguards. This is a subject which is extensively 22 discussed in the supplement to the FES and is one that 23 we believe there will be public comment on, and we will l () 24 have further discussion of in our final supplement.
25 JUDGE MILLER What else? Go ahead and tell O
v i
ALDERSoN REPORTING COMPANY,INC, 400 VIRG1NfA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
708 us the rest of the issues or contentions you feel the
(]}
1 2 stsff should not proceed on until the FES is issued.
3 MR. TREBY. We believe the staff should not O 4 proceed on Contention 5(a). Contention 5(a) deals with 5 site meteorology and population density as being less 6 favorable at the Clinch River site than most sites used 7 for LWAs.
8 These are matters which are discussed in the 9 course of consideration of alternative sites. We 10 believe that actually, Contention 5(a) can be joined 11 with Contention 7(c) and that is the way we would intend 12 to treat it, so we do not believe that since these are 13 matters which may be discussed in our supplement, that
() 14 they are appropriate to go forward with at the first 15 session.
16 JUDGE MILLER: Let me understand. 5(a) site 17 meteorology, population characteristics.and the like; 18 the staff intends to join those with 7(c), which is 19 what, site selection?
20 MR. TREBY Alternative sites.
l l 21 JUDGE MILLER. Alternative sites. Then the 1
22 staff believes tha t the consideration of alternative 23 sites should not be required by the staff, but the other
() 24 parties could go forward? Is that correct?
25 MR. TREBY: Yes. As I indicsted, we do O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
709 1 believe we could go forward with 5(b) which addresses a 2 possible impact on other facilities.
3 JUDGE MILLER: Are there any others?
4 MR. TREBYs The staff does not believe we can 5 go forward with 6 which deals with the fuel cycle, 6 because again, that is a matter which is extensively 7 discussed in the supplement and which we believe there 8 may be comment and f urther information provided in our 9 final supplement.
10 JUDGE MILLER: But the staff feels the other 11 parties, namely, the applicants and intervenors, NRDC, 12 could go forward on 6, for example?
13 MR. TREBYs Yes. We believe the other
() 14 parties, the applicants and NRDC, can go forward on all 15 contentions at this time. The staff can go forward on 16 Contentions 7(a) and 7(b), which deal with the 17 weather -- 7(a) desis with the timing of the CRBR. We 18 think that is a matter that has actually already been 19 spoken to by the Commission in its August 1976 decision 20 and, in any event, is not dependent upon anything that 21 is contained in the draft supplement that the staff has 22 circulated.
23 With regard to 7(b) which deals with 24 alternative --
({}
25 JUDGE MILLEBs (e)?
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C, 20024 (202; 554 2345 m
710
() 1 MR. TREBYs (b) as in Baker. We believe we 2 can go forward with that. All discovery to date has 3 indicated that the only alterna tives rela te to 4 alternative safety systems; there has been no indication 5 that anything dealing with the environment is involved, 6 and we believe that is a matter that we can go forward 7 with at this time.
8 7(c) I believe you have already discussed.
9 Tha t deals with alternative sites. That is discussed in 10 the suppleient and we believe that is a matter that 11 needs to avait the final supplement before the staff is 12 prepared to present its position.
13 Contention 8 deals with decommissioning.
O
\/ 14 Again, this is a matter that is discussed in the draf t 15 supplement, and we believe we need to issue our final 16 supplement before we would be prepared to go forward 17 with hearings and present the presentation of the 18 staff's position.
19 Contention 11 the staff also believes it would 20 not be prepared to go forward with a t this time. These l 21 are matters that are discussed in the draf t supplement.
i 22 They deal with consequences of complying wi th the NRC l -
23 standards for radiation protection. These are matters
() 24 which are discussed in the supplement, anb-we would a
believe it appropriate to wait until 25 the issugnce of our O
I ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
711 O ' ria 1 =unate eat-2 We do not agree that 2(e) and 11(d) are 3 identical. We believe there are some differences.
O-4 That concludes --
5 JUDGE LINENBERGER: With respect to the health 6 and safety consequences aspect of Contention 11, are 7 your comments restricted to normal operation rather than 8 as opposed to accident considerations?
9 (Pause.)
10 MR. TREBYs I guess Parts (a), (b) and (c) 11 deal with normal operation. 11(d) does appear to deal 12 with accident conditions. We deal with both of them, we 13 believe, in the FES. So I guess my comments did refer 14 to both normal and accident.
15 JUDGE LINENBERGERs All right.
16 JUDGE MILLER: Does the staff --
17 HR. TREBYs Let me just qualify that one 18 further bit. That is with respect to the exception of 19 the dose guideline values that are discussed in 2(3).
20 We do set out certain dose guidelines which are 21 established in Part 100. That is considered in the sute 22 suitability report, so.we believe that we can go forward 23 with 2(e). We believe that 11(d) goes beyond that.
24 JUDGE MILLER: Let me inquire, Mr. Treby, 25 whether your staff's interpretation of Section 2.761(a),
O ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
712 1 that portion which provides that a hearing on issues 2 covered by Section 50.10(e), et cetera, should commence 3 a hearing on those issues and Part 51 as soon a O 4 practicable after issuance by the staff of its final 5 environmental impact statement, FES, but not later than 6 30 days after issuance.
7 Does the staff construe the language requiring 8 the hearing on these issues commence not later than 30 9 days af ter issuance of the FES as mandatory?
10 MR. TREBY: No, I believe there is language in 11 there that indicates that except in special 12 circumstances or upon the agreement of the parties.
13 JUDGE MILLER 4 In the earlier portion when it 14 says "not later than", does not that constitute 15 mandatory language which contemplates earlier agreements 16 and the like but overrules them if they are more than 17 that? In other words, that looks pretty mandatory; that 18 is pretty specific language.
19 My question is whether at least arguably, the 20 hearing must commance not later than 30 days after the 21 issuance of the FES.
22 MR. TREBYa Arguably, yes.
23 JUDGE MILLER: In that event, then, if O 24 intervenors are to go to hearing not later than 30 days 25 after the FES, how would they then get discovery on the O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
713
{} 1 FES? Or would tha t be contemplated by the precedent 2 discovery of such information as is available, including 3 the DES?
O 4 MR. TREBY: I believe that is the case.
5 JUDGE MILLER: Is that your understanding of 6 what the Commission intended by this language or not?
7 MR. TREBYa I think what the Commission 8 intended was to set a date by which the hearings would 9 begin. It was a minimum or a maximum, I gu ess, of not to less than 30 days. But it is my understanding that 11 there have been cases in the past -- I am aware of cases 12 where we ha ve not gone to environmental issues within 13 the 30-day period.
) 14 JUDGE MILLER: Has the issue been raised?
15 That "not later than 30 days" cause? Has that been 16 litigated, to your knowledge?
17 MR. TREBY: I am not aware of any case in 18 which it has been litigated.
19 (Board conferring.)
20 JUDGE MILLER: Intervenors?
! 21 JUDGE LINENBERGER: Well, one clarifying l
22 question, Mr. Treby. I believe the last thing you said 23 before the Chairman asked his question about the 30-day
() 24 mandatory consideration was -- and I want to make sure I 25 understood this correctly -- I believe you said that the O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE 4 S.W., WASHINGTON. D.C. 20024 (202) 554-2345
714
() 1 staff can go ahead in the first phase of the hearings 2 with 2(e). Is that correct?
3 MR. TREBY: That is correct.
O 4 JUDGE LINENBERGERs Thank you.
5 JUDOE MILLERS 2 in its entirety?
6 MR. TREBYa Yes.
7 JUDGE MILLER: NRDC?
8 MS. FINNAMORE: Mr. Chairman and Judge 9 Linenberger, my name is Barbara Finnamore, I am a staff 10 sttorney with NBDC also representing the Sierra Club.
11 With me is Ellyn Weiss from Harmon and Weiss, also 12 rep resen tin g Intervenor, and Dr. Thomas Cochran, the 13 staff scientist on NRDC.
O
\/ 14 We are here to discuss two of our motions with 15 the Board. The first one is a motion to reschedule the 16 hearings as they were set forth in the February 1982 17 order of the Board and, also, the July 19th, 1982 order 18 of the Board.
19 The second is a motion to reconsider the scope 20 of Contentions 1, 2, and 3 as set forth by the Board in 21 its order of April 22, 1982.
22 I will begin with the first motion to 23 reconsider the hearings. When the prehearing conference
() 24 was held among these parties in February of this year, 25 every party was in agreement that should the staff
()
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
715 1 decide to reconsider the impact statement, a substantial
/}
2 revision of the schedule would be necessita ted.
3 I have quoted the comments of both staff and O 4 applicants to the effect that should recirculation 5 occur, at least 5 or 6 more months would, of course, be s
6 added on to the schedule. We are at that point today.
7 Recirculation has occurred; yet, now both the applicants 8 and the staf f have changed their positions and are 9 arguing to the Board that the hearings can proceed on 10 the " fast track schedule" which was set up on the 11 assumption that recirculation would not occur.
- This position of staff and applicants is in
, 12 13 direct violation of the regulations of the Commission.
) 14 In their arguments today, neither the applicants nor the 15 staff have pointed to any reason why their position is 16 not in violation of these regulations.
17 As we stated in our motion, we know we are 18 denied the ability of the Board to regulate the sequence 19 of hearings at the LWA stage, but we strongly disagree 20 with the position taken by applicants and the staff that 21 such discretion extends to permitting hearings to 22 commence before there is a final environmental impact 23 statement.
() 24 Now, it is very clear to us from a look at th e 25 combination of Section 50.10(e) of the regulations, 10 O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
716 1 CFR Part 2 of the regulations and Part 51 of the 2 regulations that no hearin*; on LWA issues, whether it be 3 environmental issues or site suitability issues, may O 4 commence before an FES is issued. That means a complete 5 and up-to-date FES.
6 As we stated in our motion, Section 50.10(e), ,
7 which is the LWA regulations, states that the Board must 8 make the findings required by Part 50.51(b) and (c).
9 * ;11. ants claim tha t that section only applies to 10 findings that have to be made.
11 12 13 14 15 1
18 17 18 19 20 21 22 23 O 24 25 O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
717
(} 1 That is not true. I will point the Board to 2 51.52(b) which says.
3 "The Staff will offer the Final Environmental O 4 Impact Statement in evidence. Any party to the 5 proceeding may take a position and offer evidence on the C sspects of the proposed action covered by NEPA and this
(
7 part in accordance with the provision of subpart G of 8 Part 2 of this chapter." Therefore, 51.52(b) refers not 9 just to the findings which must be made by the Board but 10 also to the manner in which the parties take positions 11 and offer avidenca.
12 When you look at Part 2, you come across --
13 when you get to Part 2 Appendix A paragraph 1(c)(2),
14 this paragraph sosin refers specifically to limited work 15 authorization hearings. That part says in any 16 proceeding relating to the issuance of a construction 17 permit for a facility which is subject to the 18 Environmental Impact Statement requirements of NEPA and 19 which is the utilization facility for industrial or 20 commercial purposes or is a testing facility, separate 21 hearings may be held and decisions may be issued on 22 national environmental policy and site suitability 23 issues and other specified issues as provided by subpart
() 24 F and'2.761(1).
25 Therefore, both the LWA rule itself and the O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
l 718 Part 2 Appendix A,
(]) 1 which refers to limited work 2 authorization specifically, requires that the hearings 3 be held in accordance with section 2.761(a). In the 4 Douglas Point case it also refers to 10 CFR Part 2 5 Appendix A as a controlling regulation for limited work 6 authorization hearings.
7 As we stated in our motion, the LWA rule 8 nowhere mentions 51.52(a.) The Douglas Point case 9 nowhere mentions 51.52(a). And Part 2 Appendix A 10 nowh were men tions 51.52 (a ) . These are the three 11 authorities that we have that relate specifically to 12 limited work authorizations, and each one of them 13 requires compliance with 2.761 to control the manner in 14 which evidence is offered and hearings are commenced.
15 Now, 2.761(a ) could not be more clear. It 16 states that the presiding officer shall, unless the 17 parties agree otherwise or the rights of any party would 18 be prejudiced thereby, commence a hearing on issues 19 covered by 50.10(e)(2)(ii) and Part 51 as soon as 20 practicable after issuance by the Staff of its Final 21 Environmental Impact Statement but no more than 30 days 22 after issuance of such statement.
23 Now, Applicants and Staff first make the poin t
() 24 that if you look at the statement of considerations for 25 part 2.761 it shows that th e underlying policy is to l
ALDERSON REPORTING COMPANY,INC, 400 VIRG!NIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554 2345
1 719 reduce the time for licensing. We agree that that is
(]) 1 2 the underlying policy. We also point out to the Board 3 that in determining how quickly a hearing can be held, 4 2.761 puts a 30-day limit but specifically requires tha t 5 one must wait until after the FES is issued.
6 Therefore, no matter how quickly the 7 Commission wished to start and proceed with LWA 8 hearings, it recognized that these hearings must await 9 completion of the milestone document. This is exactly 10 the position taken by all the parties in th e Feb rua ry 11 prehearing conference as well as the position of the 12 Board when it set up the schedule in February.
13 The Staff claims that one can read section 14 2.761 to allow hearings to commence before the impact 15 statement is issued. We feel that if such a reading 16 were plausible, the regulation would have said the 17 presiding officer may commence a hearing on NEPA and 18 site suitability issues bef ore or as soon a s possible 19 after issuance of the FES.
! 20 That is not what this section says. This 21 section says the presiding officer must commence a 22 hearing as soon as practicable after issuance by the
! 23 Staff of the impset statement.
() 24 We believe the regulation could not be 25 clearer. In fact, if you look at the Staff 's motion --
O ALDERSON REPORTING COMPANY 1NC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
720
{} 1 excuse me -- the response to the Applicants' and NRDC's 2 motion on page 4, you can see that their reading of 3 section 2.51 agrees with me. It says one can read this O 4 section either as providing a prohibition on conducting 5 a proceeding or a deadline. But when it reads the 6 section as providing a deadline, it agrees that the 7 deadline is triggered by issuance of the im pact 8 statement and thst the deadline does not allow 9 commencement of the hearings before the impact statement.
10 JUDGE MILLERS Wait. The Staff's argument 11 said that, the latter portion of your argument? I 12 followed you, but what page are you referring to?
13 MS. FINNAMORE' I as referring to page 4 of
() 14 the Staff's response, line S.
15 JUDGE MILLEP Line 5.
l 16 MS. FINNAMORE: I quote, "Tha t is, once you
, 17 have an FES, you must begin a hearing as soon as 1
18 practicable but not later than 30 da ys af ter issuance of 19 the FES. This is exactly the wording used by the 20 Licensing Appeal Board in E2M2112_E21al.
21 JUDGE MILLER: Well, does that necessarily 22 require that such hearing, which must begin no later l 23 than 30 days, could not commence earlier than that?
l MS. FINNAMORE Yes, I believe it does. As I 1
(]) 24 25 said before, if it were to be read otherwise, the O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE S.W., WASHINGTON, D.C. 20024 (202) 554-2345
721
{} 1 regulation would ha ve stated that hearings can commence 2 before or as soon as possible after issuance of the 3 FES.
O 4 JUDGE MILLER: Well, that says not$ying if a 5 regulation does not commence before or after. You said 6 practically nothing.
7 MS. FINNAMORE: That is the reason for the 8 regulation, that you must begin after. We believe the 9 regulation is saying something meaningful. Tho'only usy 10 it can be read to say something meaningful is if it 11 reads "after."
12 JUDGE MILLER: All right, let us take that s 13 interpretation, "no 1 ster than 30 days after the FES,is
() 14 issued." Is that your position, "no later than 30 t l
15 days? Is that your position?
16 MS. FINNAMORE: No.
17 JUDGE MILLER: Yes or no? I am trying to ask 18 you something here. If you are not going to accept
! 19 that, you are going to rewrite the whole thing. I am 20 asking you whether it is mandatory under your 21 interpretation that the hearing commence not later than '
i.
l 22 30 days after the issuance of the FES. You can tell me 23 yes or no on that one, surely.
() 24 MS. FINNAMORE: No. I believe that it is 25 mandatory that hearings must begin after the impact O
i 1
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554-2345
L 722 i
\
( ,
I statemen't is issusd.
2 JUDGE MILLER: Not later than 30 days after? ;
3 MS. FINNAMORE: I believe they must begin not O 4 later than 30 days af.ter' issuance of such statement 5 unless the parties agree otherwise or the rights of any 6 party would be prejudiced thereby.
4 7 JUDGE MILLER: That is up at the beginning.
8 The "not 1cter than"'follows.
It does not piecede or V ,
9 necessarily include the ea rlier statement, , which is
? 10 ' addressed to something else. Is that right?
11 ,
MS. FINNAHORE: No. Ittis the same sentence, 12 and we believe that --
13 JUDGE MILLER: Th e "early" part refers,\does
( 14 it not, to the commencement of a hea rin.g on issues 15 covered "a s soon as practica ble," unless the parties 16 agree otherwise that the rights of the parties would be 17 prejudiced, " commence a hearing on issues as soon as 18 practicable," but in any event "not later than 30 days
- 19 after issuance." I am not sure you ha ve covered all 20 tha t language.
21 I know what you are asking, but I do not think 22 you have accounted for all of the language. You glide i
23 swif tly over "no t la ter." The reason I am asking. you is
() 24 this If not later than 30 days from issuance of the l
25 FES, tha t is going to give you precious little l
i x
i l
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
723
() 1 discovery. If that is what you are asking, you should 2 consider the consequences of such an interpretation.
-3 3 If the FES is issued, let us say, September 5, U 4 by October 5 then you are going to go to hearing under 5 your interpretation. I hope you take that into account 6 in urging upon us the interpretation of the language.
7 MS. FINNAMORE: I think you misinterpreted me, 8 Chairman Miller. ,
9 JUDGE MILLER: Maybe so. I did not think you 10 covered that.
11 MS. FINNAMORE: 'Je covered that point, as I 12 stated before, by saying that the hearings may commence 13 no later than 30 days after issuance of such statement 14 unless the rights of any parties would be prejudiced 15 thereby.
16 JUDGE MILLER: That precedes, and I think that 17 refers to something else.
18 MS. FINNAMORE: Chairman Miller, you asked the 19 Staff whether this issue has ever been litigated. The 20 answer is yes. The answer is Douglas Point. In Douglas 21 Point the Board specifically dealt with the issue of 22 whether hearings may commence before there is a final 23 impact statement in that case. The Board specifically
, () 24 said that early hearings may be meaningful, but they may 25 not commence until after the Final Impact Statement has O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE S.W., WASHINGTON, D.C. 20024 (202) 554 2345
724
(} 1 been released. And in particula r, the Board --
2 JUDGE MILLER : Which board are you talking 3 about?
4 MS. FINNAMORE: I am talking about the Appeal 5 Board in Douclas Point.
6 JUDGE MILLER 4 What did the Appeal Board say?
7 Are you quoting from it?
8 MS. FINNAMORE: I am quoting from page 546 of 9 1 NRC.
10 JUDGE MILLER: All right, go ahead and read 11 what you wish to quote from. Page 546?
12 MS. FINNAMORE: The Board was discussing 13 whether LWA hearings should proceed notwithstanding the
( 14 applicant's postponement of construction and operation 15 'of the Douglas Point facility for several years. The 16 Appeal Board stated --
17 JUDGE MILLERa Where are you reading from? I 18 did not see that.
19 MS. FINN A MOR E: I am now quo ting.
20 JUDGE MILLER: You have not quoted yet?
21 MS. FINNAMORE: I am now quoting.
22 JUDGE MILLER: Where are you quoting? I want 23 to pick it up.
() 24 MS. FINNAMORE: I am quoting page 546.
25 JUDGE MILLER: But you gave me language after O
ALDERSoN REPORTING CoM*ANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345 e
725 1 you identified the page. All I want to know is where
[
2 you are quoting. That is all I am asking. I 3 MS. FINNAMORE: I am quoting page 546.
O 4 JUDGE MILLER: That is the sixth time you have 5 told me, and in between you give me some apparently 6 paraphrased. What line of 5467 That is all I am 7 asking, Ms. Finnamore.
8 MS. FINNAMORE: I am quoting from my motion, 9 which does not have the lines on it.
10 JUDGE MILLER: Do you not have the case before 11 you?
12 MS. FINNAMORE: I have my motion in front of 13 me.
14 JUDGE MILLER: I know you have your motion.
15 The question is do you have the case before you? I was 16 trying to follow you.
17 MS, FINNAMORE: I am quoting from the sixth 18 line from the bottom.
I 19 JUDGE MILLER : Okay. I have it.
20 MS. FINNAMORE: "Once the Final Environmental l
21 Statement has been released , however, it may well be 22 possible both to pinpoint and to measure with reasonabis 23 precision and certainty many of the environmental costs
() 24 which will be involved in constructing and operating thm
! 25 reactor. Where this can be done, a useful purpose l
l
[
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W. WASHINGTON, D.C. 20024 (202) 554 2345
726
() 1 conceivably will be served by having those costs 2 considered at an early hearing, notwithstanding the fact 3 tha t the striking of the final NEPA balance may still be 4 some time of f. "
5 Ihe D2 2111s Paint Appeal Board is arguing that 6 one cannot pinpoint and measure with reasonable 7 precision and certainty these environmental costs before 8 a final Impact Statement is released.
9 JUDGE MILLER: Where does it say that? Does 10 it say that?
11 MS. FINNAMORE: I submit that that is what the 12 Board is stating here.
13 JUDGE MILLER: I see. Okay.
14 MS. FINNAMORE: The reason I submit that is 15 because the Board added an additional requirement in 16 this case to underscore the emphasis it placed on having 17 a final and up-to-date impact statement in place before 1f. any LWA hearings commenced.
19 That is due to the situation in this case 20 where construction was delayed several years, but the 21 Board decided to go ahead with the LWA hearings after an 22 impact statement had been prepared and would hold a 23 second phase of the hearing nea rer to the time the
() 24 construction was actually scheduled to begin.
25 Now, at that time time the Board said thats O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTCN, D.C. 20024 (202) 554 2345
727 Even though there had been a Final Environmental Impact
(]) 1 2 Statement issued, it would require the Staff to 3 recirculate the Final Impact Statement along with any 4 supplement that the Staff would prepare before the 5 second phase of the hearings would begin. That is on 8 page 552 of the D2E211g_ Point opinion. The Appeal 7 Board --
8 JUDGE MILLER: 5527 9 HS. FINNAMORE: The final paragra ph. The 10 Appeal Board stated on page 553 that: "This procedure 11 will ensure that interested agencies and the public will 12 have the opportunity to reassess the environmental 13 impacts of the facility in the light of any augmentation 14 of data or changed circumstances which, in turn, should 15 minimize the risk that stale information will be used in 16 striking the final NEPA balance."
17 We submit that the Appeal Board was so 18 concerned in this ca se that no LWA hearings begin before 19 the public has had a chance to comment on a n up-to-date 20 impact statement and that the Staff has had a chance to 21 reevaluate the sta tements made in its impact statement 22 in light of public opinion und that the intervenors have 23 the benefit of public opinion and comments f rom
() 24 interested agencias and other groups before they be 25 required to present their case or cross-examine other O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
728 1 parties, tha t they required something that is not
(} l 2 normally required but was necessary given the time lag 3 in this case. that they recircula te a Final O 4 Environmental Impact Statement to bring the public into 5 the process.
6 We believe that given this precedent, there is 7 no way that the Board can go ahead on the hearings 6 required in this case before we have had a chance to 9 bring the public and agencies into the process through 10 circulation and consideration of comments to the 11 supplement to the impact statement.
12 Now, this is alsc required by the CEO 13 regulations which are net, as the Applicant said,
/"N
(/ 14 guidelines but.have become mandatory procedues with 15 which the NBC must comply. The CEO regulations state 18 that for adjudication the Final Environmental Impact 17 Statement shall normally precede the final Staff 18 recommendation and tha t portion of the public hearing 19 related to the impact statement.
20 Now, Applicants state that this only requires 21 compliance in normal situations. However, the CEO l
22 regulations go on to state the exact circumstances in 23 which it is no t a ppropria te to wait for a Final Impact
() 24 Statement before commencing a hearing on that 25 sta temen t. That is in the specific instance in which O
ALDER $oN REPORTING COMPANY,INC, l 400 VIRGINTA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
729 1 the purpose of a public hearing is to gather information 2 for use in the impact statement, and that makes logical 3 sense because how else can one get information on what O 4 is to be in an impact statement if one must wait until 5 after the impact statement is to be issued?
6 However, those specific circumstances are the 7 only ones cited by the CEO in which hearings may not 8 await preparation of the final impact statement. We 9 sumbit that for instances such as this in which the 10 entire purpose of the environmental findings in the LWA 11 are to determine whether the final impact statement is 12 adequate, we feel it is absurd to require intervenors to 13 challenge the adequacy of the final impact statement
() 14 before it even exists.
15 We also feel tha t under these regulations the 16 Board may not proceed with site suitability findings 17 either as it is specifically prohibited by the 18 reg ula tions cited above, in particular, 2.761. We feel 19 that the reasons for waiting until there is a final 20 impact statement are legion and that they are not 21 outweighed by any of the arguments cited by the 22 Applicants.
23 We feel that as a matter of procedural due
() 24 process intervenors are not able to f ully gain the 25 benefit of comments by interested agencies until those O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
730 l
1 comments exist. We feel it would severely curtail our
(~s) u 2 rights of cross-examination of both the Applicants and 3 the Staff if we cannot --
if we must go ahead with that t) f-4 cross-examination before there are7 final comments 5 available.
6 In sddition, it is very possible that the 7 Staff may change many of its positions in the impact 8 statement on the basis of public comment. As stated in 9 our motion, the Staff argued to the Licensing Board in 10 the Limerick case less than a month ago that the 11 comments of interested agencies will significantly aid 12 them in preparation of their final impact statement on 13 that case. We feel tha t Applicants and Staff 's position
} 14 are assuming that no changes will be made to a final 15 impact statement, which is specifically contrary to what 16 the Staf f has just,s ta ted , specifically contrary to what L3 17 happened in the impact statement issued in 1977 on this 18 case where the Staff received comments from a number of 19 Federal, State, and local governments as well as other 20 expert individuals and groups.
21 We also feel Applican ts have stated that the 22 impact statement will not change because the Staff is 23 aware of NEDC's position. We would like to point out to
() 24 the Board that the NEDC is not the only group that is 25 interested in nor will comment on the impact statement.
O ALDERSoN REPORTING COMPANY. INC, 400 VIRGINIA AVE, S.W., WASHINGTON D.C. 20024 (202) 554 2345
731
{} 1 Simply because the NRC Staff is aware of our position 2 does not mean that they will not receive substantial and 3 significant comments from other groups whose comments O 4 must be taken account of in the public hearings that are 5 going to be held on an LWA.
6 The Applicants also stated that we do have an 7 FES. I would like to point out that there is no FES 8 until there is a final supplement issued. And that is 9 also in accordance with the CEO regulations cited in our 10 motion.
11 JUDGE LINENBERGERa A point of clarification, 12 please, Ms. Finnamore. Your discussion up to now 13 seemingly has predicated itself on a holding which you
() 14 just articulated in your last sentence. Th ere is no 15 FES. Now, much of the case-related comments you have 16 made have also been in that vein of, if you will, a 17 first final FES, which only comes after review and
, 18 comment, certainly. But to say that there is no FES in 19 this case is, it seems to me, mischaracterizing it just 20 a bit, because that would seem to say that the 1977 21 issuance is down the drain or evaporated or disappeared 22 or by act of God is rendered nonexistent. And I do not 23 think any of those things have happened.
() 24 The 1977 FES stands. It did take account of 25 public revie w and other agency comments. And it is a O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
732
(} 1 final document that is now being supplemented.
2 Now, I do not quite see how it is that you
, 3 base your arguments on a situation where there is no FES V 4 and you make them applicable to a situation here where 5 there is an FES. Can you explain th at to me, please?
6 MS. FINNAMOREs The reason I say there is no 7 FES is becsuse if you look at the draf t supplement, in 8 every case relating to intervenor's contention, there 9 has been substantial revision of the information in the 10 1977 FES. And in many cases, the Staff states that the 11 information in the draft supplement replaces the 12 inf orma tion in the 1977 FES, meaning it is completely 13 superseded by the information in the draf t.
} 14 JUDGE LINENBERGER: But are there also places 15 where the Staff 's supplement says that the existing FES 16 holds as published? Are there those places as well?
17 MS. FINNAMOREs The only cases in which that 18 is true is for areas which are unrelated to intervenors' 19 contentions.
20 JUDGE LINENBERGER: Are you saying the answer 21 to my question is yes?
22 ES. FINNAMORE: That is right.
23 JUDGE LINENBERGER: So the final FES we have l
l () 24 before us, a 1977 document, has not been washed out by 25 the publication of the draft, it is being supplemented.
J l
ALDER $oN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
733 i
i 1 Is that your understanding? And the original FES final 2 still stands as the document in this proceeding? Is 3 that your understanding?
4 MS. FINNAMOREs That is not my understanding.
5 Many portions --
6 JUDGE LINENBERGER: So this original document 7 stands as the document in this proceeding?
8 MS. FINNAMORE: No, because many sections of 9 that FES have been completely replaced by portions of 10 the draf t supplement.
11 JUDGE MILLERS Pardon me. You are not being 12 responsive in your answer, I think.
13 JUDGE LINENBERGERs I am afraid not.
() 14 JUDGE MILLER: You have been asked whether or 15 not there are some areas or places in the original final 16 envirenmental supplement which remain unaffected by and 17 stand as portions of the environmental study?
18 MS. FINNAMOREs Yes.
19 JUDGE MILLER: You say "some," but then you go 20 on to something else. I think he is trying to say, are 21 there some, and if so, what are they? Have you given 22 heed to those?
23 MS. FINNAMOREs Yes. I believe I responded to
() 24 that question. I believe there a re certain limited areas of the FES, all unrelated to intervenors' 25 O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
734
{} 1 contentions which have not been upda ted by the 2 supplement. However, I believe that until there is a 3 complete updated discussion of every potential O 4 environmental impact of this plant, there is no FES. An 5 FES contemplates a complete discussion of the impacts of 6 a proposed action. We do not have a complete discussion 7 in this case.
8 JUDGE MILLER: Do you not have a complete 9 discussion if there is a statement in the draft FES now 10 being recirculated, if there is a statement in that 11 draft that there has been no significant change in 12 substance? My question is in what connection?
13 Alternatives or where do you find such a note? I do not
() 14 think you are telling us. -
15 MS. FINNAMORE: I said they only relate to 16 issues that are not part of intervenors' contentions.
17 JUDGE MILLER: That is a negative. You said 18 it three times. It does not become any more l
19 a f firm a tive . The question that has been put to you is 20 in what respects, in what portions is it stated in the l 21 draft being recirculated that the original FES is not 22 changed, if there be such? We understood you to say, I yes, there are some, and then you vent on to a negative 23
() 24 a rg umen t. Wha t we a re inquiring now is what are the 25 portions which are stated not to be affected by the I
r l
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
735
(} 1 draf t recircula ti on? Now, if you do not know, we will 2 not press you.
3 MS. FINNAMORE: I can look through the FES and O 4 find --
5 JUDGE MILLER: Have you done so?
6 MS. FINNAMORE: I certainly have.
7 JUDGE MILLERS Then tell us what you have 8 found.
9 MS. FINNAMORE: I focused on the portions of 1
10 the FES that are st issue in this LWA proceeding. The !
4 11 Board's order of July 19 said that the proceeding is for 12 the purpose of considering intervenors' contentions 1 13 through 11. Every portion of the FES related to
( 14 i n te r ve no rs ' contention 1 through 11 has been 15 substantially revised.
16 As I said before, regardless of whether there 17 is an issue in the draft supplement whereby the original 18 FES discussion as to that specific limited portion is 19 not changed, we submit that unless there is a full 20 discussion of every environmen tal im pact rela tin g to 21 this facility, there is no final FES on this document.
22 And we submit that the major environmental 23 impacts discussed in the FES, such as the impacts of the
(]) 24 fuel cycles, the potential impacts of accident at the 25 pisnt, the costs of safeguarding the plant, and l
ALDERSoN REPORTING CoMPAN,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
736 1 alternative sites to the plant have all replaced areas 2 in the 1977 FES. And until there is a final FES on 3 those issues, there is a void.
4 We cannot ch allenge the adequacy of the FES on 5 those issues because the 1977 discussion has been 6 replaced and the new discussion is still in a draft form.
i 7 I would like to point out several recent 8 decisions by the Supreme Court that state a major 9 purpose of NEPA is to get public input into the 10 environmental impact statements. It is a crucial step 11 in the process. It cannot be shortcircuited by this 12 Boa rd in proceeding to hold hearings on the impact 13 statement before the public has had an opportunity to
() 14 participate.
15 *de have had many letters written to the NRC by 16 groups who wish to comment on the draft environmental 17 impact sta tement. If we go ahead, you are not allowing 18 the NRC to have the ability of these comments, you are 19 not allowing the Staff to take these comments into 20 account, and you are not allowing the intervenors to 21 cross-examine the Applicants on the basis of these 22 comments received by these expert agencies.
23 JUDGE LINENBERGER: Ms. Finnamore, these last
(} 24 few statements you have made would seem to indicate to 25 rou that contrary to what the Board has previously O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W WASHINGTON D.C. 20024 (202) 554-2345
737 1 sta ted , that this whole LWA hearing will come to a close 2 as soon as we have taken evidence in the initial phase 3 in the hearing and that that will be the end of it. The O 4 point has been repeatedly made that the Board cannot 5 reach a decision on the LWA issue until the supplement 6 has been finalized. The Board has repeatedly made the 7 point that to the extent that finalization of the 8 supplement changes anything, the NRC and the NRDC will 9 both have an opportunity to respond, adjust, react to 10 the results of public comments.
11 So I do not understand quite the context in 12 which you are making these statements about what the 13 Board will be denying to the NRC and the NRDC if it goes 14 ahead on the limited scope of issues in an early phase 15 while we are a waiting the finalization of the supplement.
16 You seem to say that we have made up our minds 17 that we are not going to give any consideration to the 18 finalized supplement, when we have made exactly the 19 opposite clear right from the onset. So this bothers me 20 a little bit that it seems to me you are not taking 21 cognizance of a position that has been made clear for 22 some time. Have you a comment on that?
23 MS. FINN A! ORE: Judge Linenberger, if you are O 24 reterriaa to the positioa 1 the so ra, it i= 1 25 understanding that there is no final position until O
ALDERSoN R6 PORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON, D C. 20024 (202) 554-2345
738 1 af ter this conf erence between the pa rties.
[}
2 I would like to point out that the Douglas 3 E21a1 case specifically requirad tha t there be O 4 supplementa tion at both phases of the hearing and that 5 there be public comments at both phases before any 6 hearing on an LWA hearing met. This was despite the 7 Douglas Point Appeal Board efforts to expedite the 8 hearing process in a way that would get decisions and 9 findings as soon as possible.
10 On the issue of whether you are denying us 11 anything, I believe the points in our motion regarding 12 procedural due process are clear that hearings must be 13 afforded parties in a meaningful time and in a
() 14 neaningful manner. The fact that we can down the road 15 come back and discuss any issues that may or may not 16 have come up, first of all, I think assumes that these 17 issues will be tangential to the main ones which we wish 18 to present in our major --
19 JUDGE MILLER: Where do you get that? You 20 keep saying tangential, but you have made no attempt to
- 21 address the point of whether or not there are site 22 suitability matters which overlapping or not can proceed 23 without in any way detracting from the ability of the
() 24 NRDC or anyone else, including even the public, to 25 address those matters overlapping or not which are O
ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
739 C 1 contained in the Final Environmental Statement prepared 2 by the Staff.
3 Now, you have argued as though one precludes 4 the other, and yet the Board I think has tried several 5 times to find out why it is that a hearing of limited 1 6 issues cognizable under site suitability, SS, in any way 7 precludes full consideration including both discovery 8 and evidentiary presentation of the FES matters af ter 9 the Staff has subsequently produced it.
10 What is that dichotomy you seem to be 11 assuming? We have been trying to,get you to address 12 your arguments to a different aspect, and you will not 13 do it.
14 15 16 17 18 19 20 21 22 23 O 24 25 O
ALDERSoN REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON, D C. 20024 (202) 554 2345
l 740
{} 1 MS. WEISS: If I may, Mr. Chairman, Ms.
2 Finnamore has been talking really about our views on 3 whether you can proceed as a matter of law and C:) 4 interpretation of the rules. Our view is 'that you 5 cannot, as a matter of law --
6 JUDGE MILLER: Cannot?
7 MS. WEISS: That is right. I rres pec tive that 8 we don't have to establish prejudice, that it is 9 established as a matter of the rules of the NRC that you 10 cannot proceed as a matter of law. It is a second level 11 argument,then.
12 You are asking her now: Assuming that you get 13 by this legal barrier, show us how you will be
) 14 prejudiced. That-is really the issue that was treated 15 more in the second pleading tha t we filed, the motion to 16 reconsider.
17 JUDGE MILLER: Not really prejudiced, although 18 I think we are getting close now to an understanding, 19 inhibited or prohibited from going as fully as you wish 20 and are entitled to, to matters that are in the FES, 21 whether anywhere else or not; both discovery and 22 evidence. That, I guess, if prejudice means that, all 23 right.
() 24 MS. WEISS: That is sort of what I mean by 25 it. Let me try and answer the question and see if it O
ALDERSoN REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D C. 20024 (202) 554 2345
741 P
1 satisfies you.
2 Putting aside for the moment the effect of 3 really the main topic of the motion to reconsider, the O 4 scope, -- and that is Appendix J -- which raises I think 5 unique sets of questions, but generally, what is the 6 prejudice to NRDC with having to go forward on issues 7 which have been supplemented by the draft, if it is 8 assumed that we ha ve the opportunity to come back and go 9 over those same issues af ter the draf t supplement has 10 been finalized.
11 I think there are two distinct levels of 12 prejudice. First of all, in our view, the issues of 13 " site suitability" are not separable from the NEPA
/"T
() 14 issues. Our contentions never contemplated that they 15 were separable. Contentions 1, 2 and 3 in particular, 16 insofar as they raised the general issue of the 17 credibility of the core disruptive accident and the 18 analysis of probability of CRbR accidents and their 19 consequences.
20 We say that the staff's and the applicant's 21 review of that issue is insuf ficient for site 1
22 suitability purposes and for NEPA purposes. It turns 23 out that as f ar as the staff is concerned, the only 24 analysis we get of accidents which is related to the
(])
25 CRBR design is in Chapter 7 and now this new Appendix 0
ALDERSON REPORTING COMPANY,INC, l 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
742
{} 1 J. And th a t is the first time tha t we see any 2 association of probabilities of any accidents for the 3 CRBR design.
O 4 In our view, we would argue that it is clear 5 that all of the issues going to the validity and 6 credibility of that portion of the staff 's review are 7 relevant to the LWA hearing, and if we can establish by 8 cross examination and perhaps our own direct case and 9 challenge to those figures which are presented in the 10 FES that they are wrong, the consequences of that would 11 be -- that would flow over into the findings on site 12 suitability, on Part 100, the calculation of the source 13 term.
( 14 In addition to the direct conclusion, we 15 believe it would lead the Board to with respect to the 16 validity of the section on the accident consequences in 17 the FES.
18 So in summary, we don't think that the issues 19 are separable in the way that the staff seems to suggest 20 they are. And I think that if they ever really sat down 21 and thought about it they would conclude that, too, 22 because throughout our discovery and in particular, our 23 depositions of the staff, every time we ask the people I
() 24 sort of under this rubric of source term, what was the 25 accident analysis you did to see what was the maximum l
l (S)
ALDERSoN REPORTING COMPANY,INO, 400 VIRGINIA AVE, S.W, WASHINGTON. D.C. 20024 (202) 554 2345
\
7 f4 3 1 credible accident under the site suitability section, 2 the answer we kept getting was: it is a chapter in the 3 FES.
O 4 So insofar as we have been getting answers to 5 discovery, the staff hasn't viewed them as separable 6 subjects, either. And the way in which NEPA and Part 7 100 interrelate is also apparent in Appendix J to the 8 FES itself, which repeatedly cites back to 10 CFR Part 9 100. So we think they are all interrelated.
10 We also don't quite understand what is 11 contemplated by this f urther bifurcation of the 12 bifurcation, although I hear, from what the applicant 13 says, that implicit in his argument is that we are going 14 to have to meet some special burden to get these 15 witnesses back the second time.
16 The only way I can visualize how it is going 17 to proceed is that NRDC will be given presumably some 18 time to do discovery. We will do discovery at the same 19 time we have to come up with evidence that is now 20 scheduled to be filed on August 13th on all of the 21 issues.
22 I would point out to the Boird that we are 23 entitled to discovery, and meaningful discovery, before O 24 we a ve to rite ==r aire =t c- oae or the purpose or 25 discovery is to enable us to prepare a direct case. I
/'N
(.)
ALDERSON REPORTING COMPANY,INC, 40C VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
1 744 l
l 1 think that almost on the face of the matter, the staff
[}
2 having presented us with a great deal of critical in our 3 view new material, the fact that it is conclusary O 4 doesn't mean that it isn't critical. The fact that it 5 is conclusory means we need to do more discovery rather 6 than less.
7 So on its face, I think it is apparent that we 8 couldn't have done discovery and digested discovery in 9 time to file testimony on August 13th. So we have to 10 file our direct case and cross examine the witnesses on 11 the basis of the information that was available to us 12 essentially before the FES supplement came out, since we 13 von't have time to digest the stuff in the FES
) 14 supplement beforehand.
15 Then we get a witness on the stand. Say we 16 get a witness on the staff side who claims that a CDA 17 isn't a credible accident; therefore, the consequences 18 of such an accident don't have to be considered pursuant 19 to Part 100 in doing a site suitability calculation.
20 We know, as a matter of fact, that there now 21 is some analysis under Appendix J that exists 22 apparently, although we haven't been able to get 23 eff ective discovery into what it says.
() 24 Now, is it our obligation to question that 25 witness on the material that appears in Appendix J to O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
745 1 challenge his conclusion that a CDA is not a credible
.O 2 event? Or are we entitled to sit back and wait until we 3 have had time to digest discovery, or do we have to come 4 and meet some burden that we could not have questioned 5 this man in order to get him to come back a second time?
6 That is placing a burden on us which we have 7 done nothing to deserve. We have endeavored in every 8 possible way to get discovery since the very beginning 9 of discovery in this case on what analysis has been 10 done, if any, to associate any probabilities with 11 particular CRBR accidents, what codes were used, and the 12 consistent answer we have gotten from the staff and the 13 applicant is that is outside the scope of the hearing
) 14 and/or we haven't done any.
15 We have offered some examples in this 16 pleading, and now for the very first time, a month late, 17 we get the supplement to the FES which contains such 18 fig u re s .
19 Is it up to us at that point? It seems to me 20 that we ought to be allowed -- we ought to be made 21 whole. We ought to be given a reasonable opportunity to 22 do discovery and go forward on the evidence, and we 23 should not be sandbagged. If we are forced to go ahead 24 and meet some special burden to call people back, we are
(])
25 being prejudiced through no fault of our own.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
746 I want to call the court's attention to a case
() 1 2 we found after we filed the pleading -- the motion for 3 reconsideration -- on Thursday. It is the Hartsville O 4 case of March 17, 1978. It is at 7 NRC 341. I cite it 5 kind of by way of anticipating the response that I think 6 I am going to get from the applicants and staff. Let me 7 just give an explanation first of why I think it is 8 relevant.
9 I expect the staff in particular to say to 10 us: You don 't really need discovery; you could do it on 11 the stand and/or we only intend to rely on general 12 conclusions about accident probabilities, and we don't 13 intend to get into specifics; and therefore, you are
( 14 limited, too, you cannot get into specifics. By way of 15 trying to obvia te our argument that we have been 16 prejudiced.
17 I think that there is some very relevant 18 material in the Hartsville case on that, pa rticularly on 19 pages 355 and 356. The Board's access to these cases is 20 startling, but in any case, the point in question had to 21 do with the calculations by one witness of cesium-137 22 doses. He presented conclusions at the hearing, and the 23 intervenor asked to be able to see the calculations and
() 24 underlying conclusions.
25 The Eoard rejected that on the grounds that O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
747 1 they didn't think that would be helpful, and the Appeal
[}
2 Board said tha t it is obvious that the calculations 3 might have revealed errors in reaching the estimate O 4 intervenors had put in to show the validity of the dose 5 estimates, and clearly, the underlying calculations are 6 relevant to their challenge of the d ose estima tes. ,
7 Whether or not the party putting forward the estimates 8 chose to bring forwa rd their calculational methodologies 9 or not. I think that is directly relevant to how we 10 intend to use Appendix J.
11 I guess I have pretty much talked about what 12 is in our motion to reconsider the ruling on Contention 13 2. If I could just make a couple more points, I think I
() 14 can wind it up.
15 I think it is very important for the Board to 16 go back to the prehearing conference where the rulings 17 were made restricting the scope of the LWA, or setting 18 the scope of the LWA hearing, and deferring certain 19 contentions. You will see that the primary basis for 20 these rulings -- and that, in fact, is reflected in your 21 order on I think April 22nd as well -- that the primary 22 basis for these rulings on scope, or at least one of the 23 primary bases, are the assertions of both of the parties
() 24 at the prehearing conference that they would be relying 25 only on general design characteristics; that they would ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554 2345
748 1 not be looking at all at the specific design f eatures of
)
2 the CRBR. And that they would rely on no fault tree and 3 event tree analyses. In particular, we singled out O 4 CRBR-1, and there was lengthy discussion in the record 5 as to whether that would be relied on.
6 When we got Appendix J, the new section to the 7 FES -- by the way, I should note for the Board tha t 8 there were five pages missing from the typed version 9 that we got. One of those pages is J-8, I think, which 10 is the central graph-chart. Excuse me. We managed to 11 get that one because there was a page missing in the 12 middle of the narrative and we called up and managed to 13 get that a couple of days after we got the main bulk of
() 14 the supplement to the FES.
15 What we didn't realize until just a few days 16 ago was that there are also four additional pages at the 17 end of the analysis, and we found that out quite by 18 accident and managed to get a copy of that last 19 Thursday, I guess. So not until last Thursday did we 20 have a final -- what we hope is the final version of th e 21 draft Appendix J.
22 The Board, I am sure, is generally familiar 23 with what is in Appendix J. There are calculations of
() 24 the probability both of the initiation of a CDA and of 25 the failure of CRBR containment that additional O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D C. 20024 (202) 554 2345
i 749 l 1 probability had to be and was, in fact, based on some 2 review of CRBR design specifics. When we got A ppen dix 3 J, Dr. Cochran made several telephone calls in an 4 attempt to try to locate the author of it, because 5 frankly, we were shocked that no hint that anything like 6 this was coming had appeared in any of our depositions 7 or our interrogatories.
8 We discovered that the principal author of 9 Appendix J is a consultant, Science Applica tions, 10 Incorporated, SAI, which we also discovered or 11 remembered and confirmed was a principal consultant to 12 the sta f f, to the a pplicant and, in fact, prepared the 13 event trees in CRBRP-1.
() 14 We telephoned SAI, located the principal 15 author; all of the factual assertions in here that go 16 beyond the face 01 Appendix J are based on telephone 17 conversations with that gentleman from SAI. He told us 18 that, in faci.. he had reviewed particular codes which 19 had been lasisted to us -- SASS, SIMMER, all of the 20 codes which had been contained in the safety analysis 21 which that consultant did, or did a substan tial portion 22 of for the applicants.
23 And I have generally covered why I think this 24 represents substantial new material that entitles us to
[}
25 discovery. I also think, though, that the Board needs O
- ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
i 750 1 to very seriously consider its ruling on scope. We
)
2 think that Contention 1(b) and Contention 3(1) which 3 were deferred are clearly within the scope of this O 4 Appendix J.
5 Io the extent that Appendix J relies on the 6 review, whether conclusory or not, of CRBR 7 design-specific safety features, that is directly beyond 8 the scope limitations of the LWA-1 proceedings, the 9 general scope limitations beyond those four factors.
10 I guess I would just wind up by saying that 11 the fact that the analysis that is presented in Appendix 12 J is offered in a conclusory manner ought not to limit 13 our ability to probe the bases for those conclusions. I
() 14 think the Board ought to agree to that. The Hartsville 15 case stands for that decision.
16 I have been handed our draft Contention 20 17 which was presented earlier in the proceeding. It has 18 been suggested that that will offer additional support 19 for the proposition that the FES -- that the NEPA 20 accident analysis and the " site suitability findings" 21 are interrelated.
22 We o'fered a contention which was number 20 23 that was proposed. It stated that neither applicants
() 24 nor sta f f ha ve ad equately described the risks and consequences associated with CRBR accidents beyond the 25 O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W, WASHINGTON, D.C. 20024 (202) 554 2345
i 751 !
1 design basis. There was an (a) and (b). The (a) was 2 the staf f concludes in the FES that CRBRP accident risks 3 can be ma_ie acceptably low with the incorporation of O 4 certain features and design requirements. And yet, 5 neither the staff tior applicant have adequately 6 described these additional features or requirements nor 7 demonstrated that they will sufficiently lower the risk 8 of CRBR accidents. And (b), NRC policy policy reflected 9 at 45 Federal Register 40401 requires a discussion of 10 consequences substantially greater in scope and detail 11 than that contained it the FES.
12 Ihis contention does not now appear on the 13 list of contentions by NRDC because it was ruled by the
() 14 Board to be subsumed under Contention 2.
15 I guess unless the Board has any questions, 16 other than our written pleadings I don 't think there is 17 any other particular point I want to make.
18 (Board con' ferring.)
19 Oh, I as sorry. I would like to make a 20 correction to one of the pleadings.
21 JUDGE MILLERS Which one?
22 MS. WEISS: Natural Resources Defense Council, i
23 Inc. and the Sierra Club Motion to Reconsider ruling on There is a typo on page 5, the third line
(]) 24 Contentions.
25 from the bottom, the parenthetical. The parenthetical ALDERSoN REPORTING COMPANY. INC.
400 VIRGINtA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
752 1 should read, "(as opposed to the CRBR design-specific
)
2 safety reisted systems.)" So that what we are doing is 3 inserting the words "CRBR design-specific." Those words
' O 4 were omitted in the typing.
5 (Pause.)
6 MS. FINNAMORE: Chairman Miller, if I may make 7 one further point regarding Section 2.761(a), as I said 8 before, we believe it is mandatory that the FES is 9 issued before the hearings are commenced.
to If I understand the Board's hypothetical, you 11 are reading it to be discretionary and to apply only if 12 the parties -- to be mandatory unless the parties agree 13 otherwise or the rights of any parties would be
() 14 prejudiced thereby.
15 JUDGE MILLER : The 30 days you mean?
16 MS. FINNAMORE: No. I am ta lking about the 17 section that says hearings commence after the impact 18 statement is issued. Am I correct tha t that was the 19 Board's hypothetical?
20 JUDGE MILLER: No, I don't think so. But go 21 ahead, assume that it is, if you wish.
22 MS. FINNAMORE: Assuming it is the Board 's 23 hypothetical, we submit that in this case, the parties 24 most certainly have not agreed that hearings may begin
(])
25 before that.
O ALDERSoN REPORTING COMPANY,INC, 400 VIRGIN!A AVE., S.W., WASHINGTON, D.C. 20024 (202) $54-2345
4 753 1 JUDGE MILLER: We understand that.
2 MS. FINNAMORE: I'would also submit that no l 3 party has made the case that they will be prejudiced in 4 the presentation of their case by having to wait until 5 there is a final impact statement available. In fact, I 6 think the reverse is true. Waiting until the final 7 impact statement is available can only help every party 8 by providing more information tha t *e ve ry pa rty can use.
9 And in fact, not waiting until there is a final impact 10 statement will severely prejudice the intervenors, as 11 Ms. Weiss has argued just a moment ago.
12 (Board conferring.)
13 JUDGE MILLER: Would the parties care to offer
() 14 additional arguments responsive to arguments that have 15 now been ande?
16 MR. EDGAR: I would like to make some points 17 very briefly. I will not belabor the points.
18 The first thing, as to 2.761(a), the language 19 in 2.761(a) is not prohibitive. It sets the minimum 20 time for getting to hearings.
21 In addition, there are two practical problems 22 with intervenor's reading of 2.761(a). The first thinq 23 is does is make 51.52(a) a nullity. That says the staff 1
l
{} 24 can 't present its evidence, but any other party can, so 25 they read that right out of the regulations.
O ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
754 1 The second thing of a practical nature that is
)
2 presented by their reading of 2.761(a) is that it is in 3 total conflict with the policy of reducing time for O 4 licensing, which is the underlying policy f or that 5 rulemaking.
6 Now, intervenors read the 2.761(a) as l
7 overriding 51.52(a) on the rather tortuous argument that 8 50.10(e)(2) references 51.52(b) and (c), but not 9 51.52(a); and that therefore, 51.52 does not apply to 10 the LWA. That is, the LWA regulation.
11 The fact is all 2.751(a) indicates is that you 12 are setting a minimum time to hearing. That doesn't 13 make 51.52(a ) a nullity, and you have got to read these
() 14 regulations so that all parts of the regulations make 15 sense.
16 Now, there is another practical problem with 17 their interpretation. If 2.761(a) meant what it said, 18 then you can't go to hearing on site suitability l
19 issues. We know there is a provision in the NRC l
20 regulations where, quite apart from NEPA and quite apart 21 from the impact statement, you can go to hearing on site l
22 suitability issues. So there is another one.
23 Now, we do have an FES here. We have a i
[
O ss 24 supplement to an FES. This is not a new FES. It takes 25 each chapter of the original FES, evaluates whether O
t ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
755 1 there is any additional information and provides it. A 2 good example here would be Appendix J where earlier on,
~
3 I quoted the language from Appendix J. The staff finds O 4 no significant change in circumstances or significant 5 new information.
6 Now, as to Dougla s Point, you have been told 7 by intervenors that the issue presented in Douglas Point 8 was whether LW A hearings can begin bef ore an FES 9 supplement is issued; that the Appeal B'oard was highly 10 conscious of this. That was not the issue presented.
11 There is no holding in that esse to that effect.
12 Here, we are dealing with the question of 13 whether to take evidence. We are not dealing with the
() 14 question of whether the Board is going to make a partial 15 initial decision on Phase 1. The real issue is where is 16 this prejudice that the intervenors are talking about?
17 If something does come in during the comment period, I
18 there will be opportunity in Phase 2 to take care of 19 that. There is no procedural due process issue here at 20 all.
21 Intervenors have now told us -- and I must say 22 I was somewhat surprised to hea r it -- that, "we cannot 23 challenge the adeguacy of the FES no w. " If that is
(} 24 true, we ought to be talking about summary disposition 25 here. There would be no need to go to hearing. It is O
I ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
756 r~) 1 at least a fair assumption that given almost three years NJ 2 of discovery, the intervenors must know something about 3 their contentions, and they must have undertaken some 4 effort to prepare for these hearings.
5 The fact is we have this draft supplement, we 6 have the site suitability report and we have had it for 7 months. And there is absolutely no reason why we can't 8 proceed to hearings now.
9 As to discovery, it seems to us that if 10 intervene.rs are right that Appendix J raises all kinds 11 of new information -- and might I add parenthetically 12 tha t is not inconsistent with the Board's Contention 1, 13 2 and 3 rulings, and I will get to that --
but if there
() 14 is new information, the issue there is whether 15 intevenors should ha ve discovery on that information.
16 The issue is nots we can't go to hearings for a 17 thousand re a son s.
18 The schedule which the Board promulgated 19 indicated that when milestone documents were reached, 20 the parties had to confer and reach agreement on 21 contentions and move forward. During the discovery they 22 weren't even willing to negotiate to arrive at a 23 solution.
24 NRDC has not been denied any discovery here.
(}
25 They have not availed themselves of the opportunity for l
}
ALDERSoN REPORTING COMPANY,INC, l
l 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
757 discovery. The Hartsville case has no mrment here. The
(]) 1 2 fact is that the issue in Hartsville was whether or not 3 the intevenorr should have access to some underlying O 4 calculations. Well, if that is the problem, then let's 5 got tha t last-minute discovery done.
6 But the intervenors cannot and should not gain 7 the benefit here from their f ailure to more forward, and 8 particularly in light of the fact that the Board has 9 already issued the notice of hearing, now claim 10 prejudice.
11 As to Contentions 1, 2 and 3, we will not bore 12 the Board with our response to that. The intervenors 13 have filed a petition with the Commissions we have 14 responded fully. Their interpretation of the Board's 15 order is, in a word, simply incorrect. They do not 16 understand it or alternatively, they refuse to 17 understand it.
18 Tnis little dichotomy they have developed 19 between general design characteristics on the one hand 20 and then their little prohibition that says no specifics
?.1 of CRBR is nowhere found in the context of the Board 's 22 ruling. This case has had an SSR issued for a month.
23 There is specific discussion in that SSR and it
() 24 explicitly deals with CRBR. The point in Contentions 1, 25 2 and 3 is there is no need for a detailed safety review O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
758 l
l l
() 1 of all systems.
2 Now as to their point on probabilistic
(~ 3 analysis, here sgsin, they either do not understand what U) 4 a PRA, probabilistic risk assessment, is or refuse to
! 5 understand. If you look at Contention 3(a), the one 6 that was deferred, that talks about the need for a 7 comprehensive probabilistic risk assessment of a kind 8 like the Rasmussen study. Appendix J doesn 't do a PRA 9 or anything similar to it.
10 If those estimates of probabilistic or of 11 failure probabilities in the staff's FES are a matter at 12 issue, then let's get discovery. Let's get going to 13 hearing.
O 14 The problem we have is we have heard 1000 15 circuitous arguments on why we cannot get to hearing, 16 but we have not seen constructive effort to try to get 17 there. We think the Board should rule now on three 18 bases. First, there is no prohibition to getting to
- 19 hearings on schedule. Second, the intervenors and the 20 applicants should present all of their evidence on all i
21 contentions.
22 Third, the NRC staff should present their
- 23 evidence in Phase 1 on all issues which have been l
() 24 advanced by the a pplicants, and then proceed to Phase 2 25 and proceed with the balance of their evidence.
}
I ALDERSON REPORTING COMPANY. INC, l '""'*'^^"~$'***"""
- -_ .- -- - :'*'" ' ' * ~ ' ' " . -- .-
759
() 1 JUDGF MILLER: Staff?
2 3R. SWANSCN: I won't repeat the arguments 3 desling with the applicable law. Merely I would state 4 that we agree with Applicants that the regulations 5 specifically authorize the parties going forward with 6 all issues, the Etaff could go forward with the site 7 suitability issues and issues not impcted by the draft 8 supplement, but I would like to address arguments that 9 have been brought up more recently by NRC.
10 Briefly, as to the comment period, which is 11 the only thing that would be unavailable to Intervenors 12 at the time they go to hearing, the comments received 13 from Staff by the parties, obviously they don't need
) 14 their own comments to go forward, and as far as comments 15 that are received from other agencies or members of the 16 public, they will, as Judge Linenberger indicated, have 17 the opportunity when information comes up, to examine-18 the Staff on that when the document is introduced into 19 evidence. It is simply not a matter which is precluded 20 from their line of inquiry. It will just be done from a 21 different timn.
22 The Douglas Point case does not preclude 23 that. At most, it could be used for arguing that the
( 24 Board should not reach final conclusions before the end 25 of the hearings, and we agree.
O ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
760
() 1 The FES was a month later than we thought, but 2 I think it is misleading to sa y there was a one month
. .alay and therefore they are prejudiced by the one-month 4 delay. The original schedule set up by the Board last 5 February contemplated the two milestone documents, and a l 6 schedule whereby once the documents are out, that 7 discovery would proceed, and when the last of the two 8 documents was out, which was then estimated to be July 9 9 th, that we would proceed with discovery and testimony 10 and go to hearing.
11 Now, the Staff's FES did come out almost a 12 month later. The site suitability report came out 13 almost a month earlier. We think that, as a result, the O 14 Intervonors had an opportunity to commence discovery and 15 do testimony work on the site suitability report much 16 earlier than they had contempla ted , and tha t this to a 17 large extent eliminates any prejudice that could be 18 caused by a delay in issuing the FES.
19 Now, to the exten t th a t the discovery period 20 might have been compressed, the Staff indicated it would l
l 21 and has in fact attempted to reach an agreement with the 1
22 Intervenors whereby some scheme could be devised to 23 expedite the conduct of discovery. The Staff has
) 24 offered, for example, to provide oral answers to 25 discovery so the answers can be given on the post. They O
I A1.DERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
761
() 1 can be recorded somehow, for example. To date, no 2 agreement has been reached, but we stand prepared to 3 engage in some sort of expedited discovery scheme such 4 as the issuance of oral responses which the Intervenors 5 had agreed to earlier and in which we did engage in in 8 cne of the earlier phases of discovery.
7 We think such mechanism could cut out a 8 substantial amount of time which otherwise would be 9 taken up in the discovery process.
10 Finally, as far as Appendix J is concerned, I 11 am going to state simply tha Appendix J and the FES was 12 not relied on by the Staff in the derivation of the site 13 suitability source term. That is not referenced in the
\s) 14 site suitability report. Now, Appendix J does deal with 15 accident analysis, and to some extent there is some 16 relationship there. But the Staff in no way has to rely 17 on Appendix J to, we think, to defend its case that it 16 has developed a site suitability source term which meets 19 the Commission's regulations.
20 A fuller picture will develop when the Staff 71 presents its case on Appendix J as well in the area of 22 accident analysis, but the mere fact that Appendix J 23 represents accident analysis, albeit for an
() 24 environmental purpose, does not in any way say that the 25 staff is precluded from going forward on its site O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
762 O' 1 suitability source term derivation that is included in 2 the site suitability report.
() 3 In Appendix J the Staff used systems of the 4 general type is that proposed for Clinch River, and in a 5 few instances looked at the actual systems proposed for 6 Clinch River, but wi th ou t pe rf o rming a specific safety 7 review of that system. I do not believe that the Staff 8 has conducted the type of review which Intervenors have 9 alleged it has conducted, and in no way do we contend 10 tha t Appendix J contemplates or constitutes the type) of 11 specific detailed design review that Intervenors are 12 indicating they would like to get into in this hearing.
13 We do have the principal author of that
)
14 document, or one of the principal authors, here today if 15 the Board has the need to get more into the general 16 review process that was used. But simply put, the Staff 17 submits that it was a general type of review of systems 18 in Clinch River and its issuance in no way detracts from i
19 the rulings the Board made earlier about the scope of 20 Contentions 1, 2, and 3. We think we are prepared to go 1
21 forward with Contentions 1, 2, and 3 insofar as they 22 deal with site suitability matters, as the Staff is. We 23 think for the most part those are site suitability I () 24 contentions as well as the other contentions we 25 indicated we were prepared to go forward on.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINI A AVE , S.W., WASHINGTON. D.C. 20024 (202) 554 2345
763 1 JUDGE MILLER : What sbout thst conflict of 2 interest arici nq allegedly from the use of SAI?
() 3 MR. SWANSON: Well, of course, that is a 4 matter that can be taken up at the hea ring, but briefly, 5 Mr. Rumble, as I understand it, did work, a few works on 6 the CRBRP 1 review and then left the projec t. CRBRP 1 7 has never been submitted as a licensing document in this 8 docket, and it is not relied on by the Staff or the 9 consultants in drafting Appendix A. So we do not 10 believe there is any conflict there which has any 11 bea ring on this proceeding.
12 MS. FINNAMORE: I would like to respond.
r- 13 JUDGE MILLER: NRDC, do you have any further
(-)% '
14 comments?
15 MS. FINNAMORE: I have a couple more comments 16 in response to what was just said.
17 The Applicants state that there is no legal 18 prohibition to going ahead with the hearing. We could i 19 not more strongly disagree. The additional points that 20 they just stated are apposite here. For example, they 21 cite the Carroll County case in which early site 22 findings were permitted. That case refers specifically 23 to the early site procedures allowed under Subpart A, O 24 Part 2. Applicants have never asked f or ea rly site 25 findings under that subsection. Those have a completely l b ALDERSoN REPORTING COMPANY,INC, 400 VIRGINTA AVE S W., WASHINGTON. O C. 20024 (202) 554 2345
764
() 1 different set of regulations applicable to then which 2 have no relevance here. Th e re f o re , those cases he.ve no 3 weight, and particularly in comparison to Douglas Point
(])
4 which specifically refers to an LWA hearing. I think 5 staff has no basis for reading Douglas Point to mean 6 that only ultimate findings must await preparation of a 7 final FES. If that were true, the Board would not have 8 required supplementation of the FES before the hearings 9 were commenced but would have tried to apply the 10 procedure that Applicants and Staff are arguing for 11 here.
12 In fact, neither Applicants nor the Staff can 13 cite any case in NRC history in which an LW A hearing j
14 began before there was a final impact statement in place 15 or while a draft supplement was being recirculated.
16 They claim that our posttion would render 51.52(a) a 17 nullity.
18 As I stated before, the LWA regs, Part 2, 19 appendix A, the CEO regs and the applicable case law all 20 set out the specific method by which LWA hearings must 21 be held, and that is 27.61(a). 51.52(a), we submit, 22 would not be rendered a nullity by our argument. It 23 would still apply to proceedings other than LWA 24 regulations.
25 And another factor in support of our argument O
ALDERSON REPORTING COMPANY,INC, 400 VIRGtNIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
765 A
- 1 that 51.52(a) is inapplicable here is the very words of 2 tha t sta tute itself. If one looks at it closely, one
() 3 realizes that for purposes of an adjudicatory hearing, 4 51.52(a) is internally inconsistent. It requires that 5 an EIS be issued at least 15 days prior, a draft impact 8 statement be issued 15 days prior to any relevant 7 hearing, and it goes on to say tha t Applicants and Staf f j 8 and other parties -- Applicants and Intervenors can 9 present their case before the 15 days are up.
l 10 It is very unclear to us how parties can l
11 present a hearing --
present their position on the 12 hearing before th e hearing even begins. That is what 13 makes us think that 51.52(a) is not applicable to the
)
- 14 hearings, formal adjudicatory hearings, and in any case, 15 not applicable to LWA hearings such as this one in which 16 a specific requirement is set out. This is not a 17 tortuous argument, it 1,s very clea rly set out in Part 2, 18 Appendix A that LWA hearings must be held in accordance i 19 with 27.61.
(
j 20 Applicants also state that our reading of 21 27.61 is in violation of the policy of going ahead 22 without dela y. We cited the Seabrook case in our 23 pleadingss which says that the discretion of a Licensing l
O 24 Board to red uce dela y and schedule hearing arises only 25 in the absence of any limitation in a relevant statute O
l I
ALDERSON REPORTING COMPANY,INC.
l 400 VIRGINTA AVE., S.W. WASHINGTON D C. 20024 (202) 554-2345
766 O 1 and regulation.
2 Here we have the limitation f rom both a
() 3 relevant statute and a regulation. We submit that case I
4 law under ihn ; makes it very clear that questions of 5 reducing costs and delay are never sufficient to enable 6 a court to violate NEPA by saying that it would be too 7 costly or too time consuming to comply.
8 I would also like to comment briefly on the i
j 9 Sta ff 's argument that there is no prejudice to 10 Intervenors because the two milestone documents were I
11 reversed. If you look at the two milestone documents 12 and the schedule, you will realize that the schedule
(} 13 would allow two rounds of discovery on an environmental 14 impact statement update and one round of discovery on an l
15 SAS, and this is consistent with how the documents have 16 actually come out.
17 The SSR is in many respects the same as the 18 earlier SSR. The Staff places vertical bars on the 19 discussion on the SSR whenever there was a substantial 20 change made, but most of that document is verbatim with 21 the one issued in 1977.
22 The FES, on the other hand, relates to 400 23 pages of new information, and I want the Board to
(
24 realize that the Staff has made the decision that much 25 of the information in that FES is significant enough O
ALDERSoN REPORTING COMPANY,INC, I
400 VIRGINIA AVE.. S.W., WASHINGTON, D.C. 20024 (202) 554 2345
767 O
\"# 1 tha t it could not be issued just as an update, that NEPA 2 requires public circulation and comment.
() 3 If this new information were minor, the Staff 4 would have just come out and issued an upda te. In fact, 5 all the way through since February, Staff has made the i 6 position that so far they saw nothing new. We submit 7 that it must be pretty significant in order to be 8 circulated.
9 Fo r that reason, just switching the two dates 10 is not enough to say that there is no prejudice to 11 Intervenors.
12 I also wish to point out that they claim that 13 we haven't tried to negotiate with them en new
[}
14 contentions. We have made every effort to comply with 15 every one of the Board's deadlines and have up until 16 this 400 page document was dumped on us at a time when 17 only one of us was available in the office to read it 18 and discuss it. We have spoken with the Staff regarding i
19 its proposals. We feel that they penalize us by 20 reducing our time to ask questions or our ability to let 21 the staff peruse the answers before they give us a 22 response. We don't want a response off the top of their i
, 23 heads.
l 24 That is why we feel that compressing the 25 schedule would hurt us in a way that is not justified l
(
l ALDERSoN REPORTING COMPANY,INC, l
400 VIRGINtA AVE., S.W , WASHINGTON, D.C. 20024 (202) 554 2345
- 768 l
1 since it was the Staff that was a month late in issuing 2 this important document.
, () 3 I would also like to point out another reason 4 why we feel that this schedule has unfairly prejudiced 5 us, and why we are not ready to go to hearing at this ,
i i 6 point.
7 We issued interrogatories on the Staff site 8 suitability document which were due on Tuesday. The 9 Staff did not comply with the Board's recommendation or 10 holding tha t they be delivered to us on the day they 11 were due but mailed them. We did not get them until 12 this pst Eciday.
13 There were 16 of those interrogatories which
)
14 Staff simply claimed, well, we have not completed 15 putting together the information necessary to answer 16 this question, and it will be supplied at a later date.
17 This information, for example, is -- it'goes to the l
18 calculation of the dosages and the site suitability 19 source term. For example, Interrogatory 36, we asked I
20 how are the inhalation dose factors calculated for 21 thyroid, whole body, lung and bone surfaces in the SSR? l 22 The Staff claims that it has not yet gathered the 23 information required to answer this question.
O 24 First of all, they did not ask for an 25 extension on the time, but merely on their own
()
l l ALDERSoN REPORTING COMPANY,INC, 400 VIRGINlA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
1 769 O 1 initiative decided they were no going to answer them in 2 the time required. We never knew until last Friday that
() 3 they were having trouble complying with the time 4 schedules.
5 Second of all, we find it ra ther incredible 6 that the Staff came out with the site suita bility report 7 in June, but here in August it has still not figured out 8 what were the assumptions and background data upon which 9 it developed the site suitability report. We feel that 10 if the Staff is not ready to provide those answers and 11 will not give those answers to us, it is totally 12 unjustified to force us to proceed because of their
(} 13 dilatoriousness.
14 DR. C3CHRAN: Mr. Chairman, if I may, I would 15 also like to speak to this issure of prejudice since I 16 will be doin g much of the technical work.
17 Contentions 1, 2, and 3 related both to the 18 site suitability issue under 10 CFR 100 and to the FES 19 and the NEPA cost-benefit balance and the treatment of l
20 accidents.
21 One way to break this up terms of looking at 22 the interrelationship is to ask what does the site
- 23 suitability source term analysis under Part 100, what 24 effect does that have on the FES analysis?
25 Also, secondly, what does the FES analysis, O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, O C. 20024 (202) 554-2345
770 1 what effect does that have on the 10 CFR 1007 The one 2 case is the effect of the site suitability source term
(
() 3 on the FES and is'most easily described and is probably 4 less relevant to your concerns because the FES issues 5 under the scenario you are examining will come later, 6 but just for completeness, obviously if you make a 7 decision about what the design basis accidents are, 8 which is Contention 1, for purposes of 10 CFR 100, and 9 then go from there into Contention 2 and look at the 10 effect of that decision on the site suitability source 11 term analysis, you have made some conclusions with 12 regard to probabilities of accidents, whether they are 13 credible or not, snd so forth, and that feeds right into
(])
14 the FES analysis in, for example, in this Appendix J.
15 And in fact that is the way the Staff has in part 16 constructed their accident analysis in Chapter 7, 17 Appendix J.
18 Now, the more difficult issue to explain, a t 19 least from my point of view, is how the FES issues 20 Chapter 7, Appendix J affect our case on the 10 CFR 100 21 issues.
22 Now, early in the proceeding the Staff said to S 23 us and to the Board that they were not going to do any l x/
24 accident analysis, any CDA analysis. Therefore we could l
25 not get discovery on any of the computer codes other l
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S W., WASHINGTON. D C. 20024 (202) "54 2345
771 0 1 than TRACT and CRAC, which they would use for their site 2 suitability analysis, but we would not be permitted to
() 3 get discovery of the staff for computer codes like SAS, 4 YENUS, REICOHEP, and SIMMER which are the codes the 5 Staff has examined or utilized in the course of their 6 safety analysis review for the construction permit.
7 In' fact, this was a reversal of a previous 8 Board order in 1975 or '76 when the Board said that even 9 though the Staff was not going to utilize some of the 10 codes, because the Applicant was utilizing them, the 11 Intervenor had the right to find out the Staff's opinion 12 on these matters.
() 13 The Board in 1982 reversed itself and said the 14 Staff no longer -- Intervenors no longer have the right 15 to get the Staff's opinion on these matters. So the 16 Staff then proceeded to refuse to answer any of our 17 updated discovery on these codes, and there were entire 18 sets where they just answered the entire set of 19 questions atout SAS by saying that these were beyond the 20 scope of discovery.
21 The second sort of issue that I think is 22 important is what ic the probability of a CDA being 23 initiated, and what is the probability that it will 24 develop in a way so tha t the consequences exceed the 10 25 CFR 100 guidelines?
O .
ALDERSON REPORTING COMPANY,INC.
400 VI AGINIA AVE. S.W , WASHINGTON. D.C. 20024 (202) 554 2345
_.__ _ _ . . _ . = _ _ _ .
i i
- 772 O 1 Staff asserted throughout the discovery period 2 that th e y weren 't doing any analysis of tha t type, and I 3 will just read to you from the Staff's reponse to the 4 25th set, which was filed on June 18 of this year.
5 6
7 8
[
l 9 1
l 10 11 12 O
14 16 16 17 18 19 20 i
21 22 O 24 25 O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S W., WASHINGTON, D.C. 20024 (202) 554 2345
773 l
(
! 1 One of them -- there are a whole host of them 2 you should look at, but one in particular is 3 Interrogatory Number 12, where we ask with regard to the 4 Staff's response in the 14th set of interrogatories l
5 where the staff stated: The probability and reliability 6 methods are used where appropriate is one of a number of l
7 techniques that aid in our engineering judgment in the 8 safety evaluation of reactors.
9 The Staff's response wass The Staff is not 10 performing probabilistic or reliability analyses for use 11 in the LWA-1 procteding. We have many questions that go 12 to that issue, and we have repeatedly gotten that kind
() 13 of answer, and the deposition of the staff addresses 14 that same issue.
15 Then we asked also in the same set, if you 16 will refer to the response to Interrogatory 45, where we i
17 asked them -- we said we would like to duplicate the 18 calculations sf the accident consequences in the FES.
19 The staff said in this response that the majority of l
20 data, the computer codes used to calculate the dosages 21 appearing in FES Table 7-2 have, however, been destroyed.
22 Then they go on to say, the staff is currently 23 not de'pending upon the numerical values of the 24 calculated dosages presented in Table 2 of the FES for l
.i 25 its conclusions regarding the CRBP accidents. The staff ALDERSON REPORTING COMPANY,INC, 400 VIRGINI A AVE., S W., WASHINGTON. D C. 20024 (202) 554 2345
I 774
() I has re-evaluated Class 9 accident, et cetera, and this 2 will be in the updated response.
{} 3 So, contrary to Mr. Edgar's assertion that 4 there is really no change, in fact, they have thrown out 5 Chapter 7.2, which was the area that dealt with 6 accidents, and said, you should see the supplement, and 7 the calculations in the supplement are Appendix J.
8 Now, in our case, though, against the staff 9 position on the 10 CFR 100, given that the staff had 10 asserted that they were not doing any analysis of CDA 11 accidents, to me, that implies that they can make no 12 assumptions with regard to the conditional probability 13 that if a CDA occurs, it will exceed the 10 CFR 100 14 guideline values. In other words, they maintain, and I 15 maintain, that they have to show that the initiation of
-6 16 the CDA is in the neighborhood of 10 or less,
-6 17 because if it is less than 10 or let's say that it
-2 -3 -4 18 is 10 , 10 , or 10 , then you have to show 19 that, well, even if is initiated, it is not going to 20 exceed the 10 CFR 100 guidelines. Therefore, you can 21 exclude it from the design basis accident consideration.
22 So, it seemed to me that they -- and I will 23 refer you to the Denise letter, where prior to this 24 LWA-1, this new proceeding this year, their previous 25 statements were simply that the CDA probability of CDA O
O i
ALDERSON REPORTING COMPANY,INC, 400 VIRGINTA AVE., S W., WASHINGTON. D C. 20024 (202) $54 2345
775 C
$ 1 initiation was sufficiently low that it wouldn't exceed 2 the 10 CFR 100 guidelines. Now, coming into this
/~N 3 proceeding, they said, we are not going to look at any V
4 of this aspect of the case that involves the conditional 5 probability that a CDA is initiated. What will be its 6 chances of exceeding the guidelines?
7 That makes a much tougher burden on them to 8 show that the initiation is of sufficiently low 9 frequency that they don't even have to look at these 10 issues. That is the way I was looking at this case and 11 have been looking at the case since February of -- not 12 since February, since the prehearing conference, I 13 guess, where you threw out all of our contentions 14 related to the reliability program and the computer 15 calculations of accidents and so forth. They have been l
16 consistent in their representations to us up until they 17 presented this document.
18 Now, lo and behold, in this document they 19 present a different case, a case I thought they had to 20 make to begin with. That is, you have to look at the 21 conditional probabilities of a CDA exceeding the 10 CFR 22 100 guidelines, because as they represent in this e
23 document, by their own calculations, the probability of Q
\- 24 CDA initiation is 10
-4
. That is the bounding number 25 they use in Appendix J.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON. D.C. 20024 (202) 554 2345
776
() 1 So, now, my case on the site suitability 2 source term, 10 CFR 100, is prejudiced because they have 3 now put into the record all of this analysis on the 4 conditional probability that the CDA will exceed the 5 guideline values given its initiation. I called up the 6 staff and asked them, who did this analysis, how was it 7 done? I had a telephone call with a Mr. Gerry Swift to 8 that effect on July the 26th. Mr. Swift said that a 9 consultant -- he said SAI had performed the probability 10 analyses, and that another gentleman at the NRC had been 11 involved in the TR AC and CR AC code calculations for 12 consequences, and the probabilities and consequences 13 were integra ted by himself and these other gentlemen.
O 14 Then I called up Mr. Rumble. I asked Mr.
15 Swift, well, who is the point man at SAI who did this 16 work? I was given Mr. Rumble's name. I had several 17 conversations with him. Now, Mr. Rumble, who is 18 responsible for essentially all of the probability and 19 reliability analysis of the staff that go to this 20 conditional probability, and he is even responsible for 21 tha analysis of the probability of the CDA ini tia tion .
22 I went through the data in Appendix J, the conclusions, 23 and asked him, how did you get this number, how did you
() 24 get that number, and so forth.
25 Mr. Rumble told me that he -- and we also O
ALDERSoN REPORTING CoWPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
777
() 1 discussed his previsas work with the applicant. Mr.
2 Rumble told me that he had worked on CRBRP 1, which was r^N 3 the PRA analysis that you excluded f rom the scope of the
\-)
4 LWA-1 proceeding, and he had done this work for the 5 applicant, and ti.a t he was responsible for putting 6 together the methodology on the event trees and fault 7 trees that went into the CFBRP 1, and after that he was 8 pulled off of that work, and other people at SAI 9 continued it, but he also said, though, when I asked 10 him, how did you get these numbers that he presented in 11 Appendix J, he said that he relied on a whole se rie s of 12 reliability analyses, including CRBRP 1.
_ 13 I asked him, well, how did you get the
(/ 14 conditional probability that if a CDA occurs, you will 15 get primary containment failure from a severe 16 explosion. He said, I looked at -- h's said it was a 17 conservative estimate based on a review of all code 18 calculations. I said, which code calculations? He 19 mentioned SAS, VENUS, and SIMMER, the very same codes 20 the staff said they weren't relying on and have been 21 asserting to me th a t they would not rely on.
22 MR. EDGARs You did get discovery on all those 23 codes f rom the applicant.
24 DR. CDCHRAN: No, cir, George. You are 25 wrono. I didn 't get discovery upon the sta f f. I am O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE S.W., WASHINGTON. D.C. 20024 (202) 554 2345
778
() 1 talking about the Staff.
2 MR. EDGAR I just wanted to be suce --
(}
3 DR. C3CHRANs No, sir, George, you are 4 mistaken, and I will treat your issue later.
5 HR. EDGAR: Did you get discovery on the 6 A p plica n t?
7 DR. COCHRANs I got discovery on the Applicant 8 who is relying upon -- I didn 't ge t discove ry from the 9 Staff but I didn't pursue discovery on those issues 10 because the staff.--
11 JUDGE MILLER: Now, gentlemen, I think we are 12 getting beyond the scope of the argument. We are 13 getting some repetition. We are getting some 14 interplay. I think you had better come to a conclusion 15 now with your statement.
16 DR. COCHRANs They have introduced the codes 17 and the probability analysis which you excluded from the 18 scope of the proceeding. I told you back in February 19 that I needed at least a year of discovery because of 20 the detail and the comprehension of this case, and your l
21 response was that I wasn't going to get it, and in any i
22 event if the FES were recirculated I would have another 23 five months.
24 Now, the SAS code itself has about 40,000 25 different cards ;r statements involved in that routine.
O v
ALDERSON REPORTING COMPANY,INC, I
400 VIRGINIA AVE., S.W, WASHINGTON O C. 20024 (202) 554-2345 i
779
() 1 These codes are enormous. There is an enormous amount 2 of documentation behind these codes, and we did not 3 porsue -- I did not pursue discovery beyond primarily
(]}
4 just updating the first round of discovery on these 5 things that only the applicant provided, because they 6 were beyond the scope of this proceeding. I did not get 7 into any of the discovery of the reliability analysis 8 for the same reason other than to continually ask, what 9 sra you going to rely on in the LWA-1 proceeding?
10 Every time I get back this answer, they are 11 not relying on probability and reliability analysis, and 12 the limitation was that they would rely on WASH 1400 to 13 gain some sort of perspective. This was the statement O 14 the staff made to me in the deposition. So, it is not a 15 simple matte r of me get ting another two weeks or a month 16 or two months to go back and do this kind of discovery 17 that I was prevented from doing in the last six months 18 to catch up.
19 (Whereupon, the Board conferred.)
l 20 21 22 l 23 24 25 ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
l 780 O i DR. C0CuRAN. I have two other points, Mr.
2 Chairman, when you are through.
3 (Board conferring.)
4 MS. WEISS Mr. Chairman?
5 JUDGE MILLER: Yes.
6 MS. WEISSa I was just going to ask you if we 7 could take a couple minutes while you were referring.
8 DR. COCHRANa I just had two other comments, 9 Mr. Chairman.
10 JUDGE MILLER All right.
11 DR. CDCHRANs One with regard to the 12 Staff's -- with regard to the SSR, we received, as 13 indicated earlier, the Staff's response to my O 14 discovery. Suppose for a hypothetical that Appendix J 15 didn't exist at all and we went back to my previous 16 und er ta n ding of the Staff 's case. I asked a number of 17 questions directly related to how the Staff calculated 18 with the CRAC and TRAC codes the dosages with which to 19 assess against the guideline values and why they didn't 20 do certain things with regard to ICRP 26 recommendations 21 in determining what guideline values to use.
22 I got virtually every one of the responses 23 that Ms. Finnamore mentioned earlier. They have yet to O 2. ,covide the dete.
25 Now, they are in effect telling you that we O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
781 A
(_) 1 ought to go to hearings in two weeks and present our 2 case on all our contentions, including this narrow part
{} 3 related to the calcula tions of the dose, and that in 4 this two-week period, by August 6, I am supposed to get 5 their answer and analyze all of these calculations of 6 dose and so forth, write up the case and write up all 7 the rest of the case. In the meantime, they cannot even 8 get the data together in the two week period that they 9 have to answer our contention.
10 JUDGE MILLER: Let us inquire about that.
It 'What about this data they have requested that 12 the staff has not furnished?
13 (Pause) 14 MS. FINNAMORE: Would you like me to read the 15 numbers of the questions I am referring to?
16 JUDGE MILLER: No, I think the Staff's 17 f amiliar with them. I am assuming they know what the 18 interrogatories are, the information requested that you 19 haven't received, and would inquire of the Staff whether 20 that be so, and if so, why haven't they produced them?
21 We had understood that the parties, all the 22 parties, were complying with the discovery schedules set 23 up by the Board, and in many cases negotiated by and 24 among the parties.
25 If this is a breakdown, let's find out about O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINI A AVE S.W.. WASHINGTON. D.C. 20024 (202) 554-2345
782 1 it.
2 DR. COCHRAN: There's another point in this 3 regard.
[}
4 JUDGE MILLER: Let's take one point at a 5 time. We don't want to get into matters which are not 6 within the site suitability phase within the limitations 7 that have been established by the Board or suggested by 8 the Applicants and staff. At least let's keep our 9 remarks to that because one does not preclude the 10 other. In fact, there may be an absolute overlap. That 11 doesn 't mean we can ' t get started on some kind of 12 e viden tia ry hearings.
13 We find there is a concreteness that comes to O 14 a trial th a t you do not get by a lot of hypothetical 15 problems, worries, agonizing and all the rest of it.
16 So stick to what is feasible in terms of the 17 trial.
18 By the way, there is nothing new about these 19 trial dates in the prefiling of the testimony. They 20 were established in February and March. There has been 21 no change in the schedule. There has been no indication 22 except insof ar as the parties made their own assumptions 23 tha t there would be any change in the schedule.
) 24 There are no changes to the Board 's ruling at 25 this time.
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
783
() 1 (NRC Staff conferring, and Board conferring.)
2 JUDGE MILLER: Yes, does Staff have the 3 information?
4 MR. SWANSON: I don't think I can give you an 5 answer which is going to help us a lot. Simply, the 6 answer is that when we said tha t information is still 7 being gathered, what we are saying simply is the people 8 who have that information, there are some areas where 9 specific individuals had to answer them as opposed to 10 other people who have more of a general knowledge.
11 Those individuals were not available at the time to 12 respond to them.
13 JUDGE MILLER: Well, let me inquire first of O 14 all whether that information is proper discovery, 15 legitimate discovery on any of the issues that the Staff 16 and/or the Applicants have ur7ed the Board are necessary 17 to proceed to trial?
18 MR. SWANSON: I guess we would have to get 19 into specific interrogatories.
20 JUDGE MILLER: I suppose so, because if you, 21 the Staff and the Applicants are urging the Board to i
22 adhere to the schedule insofar as site suitability 23 issues, representation has been made by NRDC that there 24 ar7 some discovery matters that the Staff has not 25 susplied that are necessary to go to hearing.
l O
l ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE S.W., WASHINGTON, D.C. 20024 (202) 554 2345
784
( 1 Now, I think we have a right to know and they 2 have a right to know whether or not that is correct.
3 MR. SWANSON: It is my understanding that
(]}
4 those were in fact proper discovery questions, and in 5 fact, the responses would be relevant to this phase of 6 the hearing. However, we indicated in the response that 7 the responses would be filed within the timeframe set 8 out by the Board in its February 11 order, that is, by 9 August 6, the last date for responses to outstanding 10 discovery.
11 JUDGE MILLER: Then those discovery responses, 12 under the schedule, are due by August 6?
13 MR. SWANSON: That is the last date for O 14 responses to outstanding discovery, yes.
15 JUDGE MILLER: Is the Staff able and is it 16 going to supply the information by that date?
17 MR. SWANSONa Yes.
18 JUDGE MILLER: Then you are still on the
, 19 discovery sched ule.
20 DR. COCHRANs Mr. Chairman, my point is that 21 they are proposing that between August 6 and August 23, 22 that I prepare my case on the site suitability issue.
23 That is seventeen days. Let's suppose --
24 JUDGE MILLER. It has always been that amount 25 of time. You've all had an awful lot of opportunity to
() '
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
l 785 1
. ) 1 talk to us. *'e a are getting toward the close. It l 2 doesn 't do any good to repeat and repeat the statements
(} 3 you made. We know what the statements are. We know 4 what the problems have been insof ar as an FES is 5 concerned. We also know what the arguments are that 6 have been addressed to this Board, and we haven't yet 7 ruled but we are close to doing it, as to site 8 suitability, whether or not they overlap.
9 DR. COCHRAN Two points. One is they didn't 10 comply with the deadline. We got our discovery in 11 early. They had ten days to answer the questions. They 12 did not meet your deadline.
13 Furthermore --
14 JUDGE MILLER: Hold it. Let me find out about 15 that.
16 Is that correct or not?
17 (NRC Staff conferring and Board conferring.)
18 MR. SWANSON: Mr. Chairman?
19 , JUDGE MILLER: All right, we are going to 20 recess for lunch for an hour. Now, let's return at 21 quarter to 2:00 so it will give everybody a chance to go 22 over th ese ma tters. They have been pretty well argued.
23 I think the Board is going to want to know whether or 24 not there have been any delays in discovery, if so, the 25 nature of them, and what impact, if any, or if not, we O
ALDERSoN REPORTING COMPANY. INC.
400 VIRGINTA AVE S.W., WASHINGTON. D C. 20024 (202) 554-2345
786 1 vant the record to be complete on that.
2 If there are other matters that have to be 3 argued, we will give you time and an opportunity, but it 4 might be well, if you are going to have anything new, 5 that you advise the other parties so we don 't have to 6 spend a lot of time on determining what the facts are.
7 We stand in recess until quarter to 2400.
8 (Whereupon, at 12 45 o' clock p.m., the 9 conference in the above-entitled matter recessed, to 10 reconvene at 1: 45 o' clock p.m. this same da y. )
11 12 13 14 15 16 17 18 19 20 21 22 23 O u 25 O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINTA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
787 O i arTrasooN srssroN i
2 (1:45 p.m.)
l 3 JUDGE MILLER: All right. Our meeting will 4 resume.
5 I think staff counsel was going to give us the 6 information about the responses to certain in te rroga tory 7 requests which the NRDC had pointed out were made, and 8 they claim were not responded to in the appropriate 9 time. What is the situation?
10 MR. SWANSON: I had forgotten how far I had 11 gotten into it before, but just to recap the responses 12 to interrogatories which indicated that information was 13 being gathered was the result of an inability to reach O 14 all of the people, the people were just not available 15 where a specific person was necessary in some instances 16 to answer a question. These people are available now.
17 We will be getting the answers, as we indicated, no 18 later than Friday, and perhaps a little bit earlier.
19 Now, the Board's original schedule in 20 February, February 11th schedule, of course, 21 contemplated August 6th, Friday, as being the last day 22 for response to outstanding discovery on new matters.
23 We had been endeavoring to get our responses in earlier
() 24 than tha t da te , but cognizant of the Board's order of 25 April 14 th on discovery time, the 14-day turnaround O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON 0.C. 20024 (202) 554 2345
s ,
c 788 e
() 1 period as the deadline on the.; staff was for a specific 2 period, April 30th to June 18th. It did not extend 3 beyond that, but as I indicated, we were trying to get
{}
4 responses in, and in fact were able to for all but those 5 few interrogatories where the specific individuals 6 simply were not available to get the answers to us at 7 that time.
8 The information is there, and people are now 9 here, and we will be getting the answers soon.
10 JUDGE MILLER: Is there any other discovery 11 tha t has not now been supplied by the staff and others?
12 MR. SWANSON Well, as I understand, we are 13 talking about some discovery that was objected to. I am 14 not aware of whether or not there is anything that needs 15 to be brought before the Board now or not. That is up 18 to the intervenors. But we have been talking about some 17 matters. There were some that we objected to.
18 Now, we are, of course, talking about 19 discovery on the site suitability report.
20 JUDGE MILLER: Yes, site suitability. The 21 site suitability matters are those that the staff and 22 applicant are susceptible to remaining on track for the 23 evidentiary hearing.
l /'
t 24 MR. SWANSON: That is correct. And as far as l
25 the FES is concerned, as we mentioned before, these
! )
ALDERSON REPORTING COMPANY,INC, 400 VIRGINI A AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
789
() 1 documents did switch places in terms of the order in 2 which we earlier thought they were going to come. There
{} 3 was a ten-day period delay in getting the FES out from 4 the originally proposed date of the last milestone 5 document. As I indicated, we have proposed a method 6 whereby perhaps we can eliminate the prejudice that 7 would otherwise have occurred to the intervenors by that 8 ten-day delay, and one possible way is, we, I think, 9 ir.'.icated to intervenors informally before, was to 10 retpond orally.
11 For example, instead of taking, say, 14 days 12 to respond to a set of interrogatories, if we had the 13 questions, if we took only four days, and then gave the 14 answers to them, again, the answers could be transcribed 15 or whatever. That would be a way of making up those ten 16 jays.
17 JUDGE MILLER: Is that contemplating SSR 18 issues or FES issues?
19 MR. SWANSON: I am not talking about FES 20 issues. I was talking about discovery on the FES as a 21 separate matter from the site suitability report. I am 22 not aware that there is any timing problem or schedule 23 problem on the site suitability report. We will be
/~'T
\/ 24 making that deadline without any problem, the August 6t 25 deadline.
O ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
790
() 1 DR. COCHRAN Mr. Chairman, I still had a 2 couple of points on the table.
(} 3 JUDGE LINENBERGER: Mr. Swanson, with respect 4 to the staff's responses to these interrocatories for 5 which the appropriate people were not available to 6 provide the information, it is not clear to me with 7 respect to one aspect of that whether there was some 8 reason for NRDC to have believed that these answers 9 would normally be available before the ultimate August 10 6th cutoff date. I gather that based upon the 14-day 11 turnaround convention or agreement or whatever, NRDC did 12 have a right to expect those answers,before the 6 August 13 date th a t you say you will now comply with. Is that 14 correct or not?
15 MR. SWANSON: I think you would.have to hear 16 from them as to the basis for that belief. There was a 17 14-day period prior to that, as I indica ted in the 18 Board's April 14th order, they established -- they 19 indicated the staff had agreed to answer interrogatories 20 during a specific period, and that is in the April 14 th 21 order, the April 30th to June 18th period, the 14 day 22 turnaround basis. I indicated that we, of course, 23 endeavored to make that period even now, although the l
24 Board's order of February 11th established August 6th as 25 the deadline date.
(
l l
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202: S54-2345
791 l
() 1 As I indicated, we will make the August 6th 2 date, but we did not make the 14-day period on all 3 questions, but now the individuals are all available,
)
4 and we will try to get the answers in as soon as 5 possible. I 6 DR. COCHRAN: Dr. Linenberger, coul'd I comment 7 on tha t ?
8 JUDGE LINENBERGER s It sounds to me that the 9 NRDC did have a basis for believing a 14-day turnaround 10 cariod on that set of discovery questions for which the 11 staff now finds that they must have until 6 August to 12 complete. All right. I just wanted to clear up that 13 point in my own mind.
O 14 JUDGE MILLER: What are the questions or 15 issues that are impacted by the interrogatories that you 16 have just been discussing? What we are trying to find 17 out is, staff has informed us, I believe, that it is the 18 staff's view that the present hearing schedule should 19 proceed for our August 23rd hearing by the other 20 parties, namely, the applicants and the intervenors, and 21 thit the staff should proceed under the present schedule 22 for Contentions 1, 2, 3, SD, 7A, and 7D. Is that 23 correct?
( 24 MR. TREBY: Five B baker.
25 JUDGE MILLER: B as in Baker?
b a
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINTA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
792
() 1 MR. TREBY: Five B and 7 B.
2 JUDGE MILLER: Why on Page 2 do you say 5 D as
{) 3 in dog?
4 (Paure.)
5 Let's get it straight as to what your position 6 is.
7 MR. TREBYa I apologize for that. It should 8 be -- in both instances it should be B as in baker. l 9 JUDGE MILLER: It is SB as in baker and 7B as 10 in baker?
11 MR. TREBYs That's correct.
12 JUDGE MILLER: Let the record reflect those 13 changes accordingly, and the statement I just made O 14 also. Now, the question in the Board's mind is, should 15 there be some additional time f or discovery or trial 16 preparation, whatever, according to NEDC, because of the 17 lack of a 14-day turnaround, although the information 18 will be filed by the cutoff date of Au;ust 6th?
19 DR. COCRHAN: Could I comment on that, Mr.
20 Chairman? My microchone doesn't work. Maybe I should 21 just speak loudly.
22 JUDGE MILLER: I won't ask for the cause.
23 DR. COCHBAN: The primary interrogatories 24 begin at Page 17 of the staff's response to the 26th 25 set. They relate to the table in the SSR at which the O
ALDERSoN REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
793
() 1 staff presents its calculations of the dose to the 2 maximally exposed individual and the public, and the man 3 rem dose at the LPZ for the site suitability source term.
[} .
4 Now, the questions that follow from Page 17 5 are an effort on our part to determine and to be able to 6 reproduce how those calcula tions were performed in order 7 to get those dosages; secondly, why they made certain 8 assumptions with regard to the choice of the guideline 9 values against which they would compare those doses.
10 Now, Judge Linenberger, as a man of science, I 11 think you should appreciate, if anyone, the difficulty 12 one would have in receiving these data on the 6th of 13 August and preparing direct testimony by the 13th of 14 August in seven days on that one issue, aside fron all 15 of the other issues in this case, and just compare this 16 time that we are allowed to do this against the time 17 that the staff has taken in being unable to even gather 18 the data together, much less look at it.
19 I would also call your attention to the 20 staff's response to a similar question with regard to 21 the accident calculations in Table 7.2 of the original 22 IVS. Those were, as I referred to earlier, the data for 23 which most of the calculations were lost, but the staff 24 did indicate that there was some microfiche that were 25 being held for me in the public document room for which
\
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
794
() 1 all the TR AC and OR AC code calculations were made.
2 JUDGE MILLER: Well, if that is FES, we would
('T 3 like to set aside FES because there is going to be U
4 plenty of time and opportunity, so stick, if you will, 5 to SSR.
6 DR. CDCHRAN Mr. Chairman, I am trying to 7 make a point.
8 JUDGE MILLER: Make a quick point. We have 9 got so many problems on FES, if yo u say FES, I am going 10 to cut you off.
11 DR. COCHRAN:- My point is, I am likely on 12 August the 6th to get the same kind of data, Mr.
13 Chairman, and it will be in the form of microfiche or O 14 some other kind of computer printouts that are very 15 difficult to analyze.
16 JUDGE MILLER: We will see what you get August 17 6th on the SSR issue period. -
18 DR. COCRHAN Now, there was a second issue 19 that I was cut off from earlier and was not allowed to 20 make. -
21 JUDGE MILLER : What is that? You have taken a 22 lot of time. I am trying to get you focused in on what 23 we want to hear. You don't have the floor to 24 filibuster, in case there is some misunderstanding. I 25 don't think there is.
O ALDERSoN REPORTING COMPANY,INC.
400 VIRGIN!A AVE S.W., WASHINGTON. D.C. 20024 (202) 554 2345
a 795
() 1 DR. COCHRAN Mr. Chairman, I am not 2 filibustering.
3 JUDGE MILLER: All right, then, stick to the Os 4 issue, SSR. Go righ t ahead.
5 DR. CDCHRANs I would like to stick to the 6 issue 10 CFR 100 Tnd site suitability.
7 JUDGE MILLER: Okay.
8 DR. COCRHAN: The staff has made the 9 statements repeatedly and they are found in the Denise 10 letter that as part of their site suitability 11 determination, it is based on being able to make th e 12 case that the Clinch River reactor or the reactor of the 13 general size and type can be made as safe as a 14 light / water reactor, and in fact the ACRS picked up on 15 tha t in their recent letter, and their findings were 16 basically that the site was suitable for a reactor which 17 was made as safe as a light / water reactor.
18 So, they found the site suitable for a 19 light / water reactor. The comparability issue which 20 underlies the Danise letter and the site suitabiljty 21 analysis and the ACRS findings go to the comparability 22 of accidents of light / water reactors and the Clinch 23 River reactors, and those are the accidents within the
() 24 design basis where one draws a line on the design basis 25 and accidents beyond the design basis. The only O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
1 l
l 796
() 1 analysis that the staff has provided on the consequences 2 and the probabilities of accidents is contained in the
{} 3 FES in Chapter 7.2, and that was thrown out and replaced 4 by Appendix J in the updated analysis, and I don't see 5 how one can do the site suitability analysis without 6 looking at these parts of these calculations in the Ffe, i
,7 because they go to this issue of comparability with the 8 light / vater reactor.
9 The other point I wanted to make earlier was, 10 after the applicant had made the case to you that they 11 could determine what was within and outside of the scope 12 of this proceeding with regard to reliability analysis,
- 13 ve have asked them over and over again what they will V
14 rely on at the LWA-1 proceeding in the way of 15 probabilistic analyses and reliability analyses. They 16 have continued to stonewall up until five minutes before 17 we came back from recess, when Mr. Edgar said, we will 18 have that answer to Interrogatory 27, which was the one 19 we filed with you for an adequate response, they will 20 have that answer on August 6th.
21 So, we have yet to find out what type of 22 reliability analysis applicant will rely on at the LWA-1 23 stage, and for you to think that I haven't been 24 prejudiced or lost time in this case because I have had 25 all this discovery time sort of leaves me a bit, well, I l
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE , S.W.. WASHINGTON. D C. 20024 (202) 554 2345
797
() 1 won't say how it leaves me. It is not satisfactory.
2 JUDGE MILLER Let's have a response to that, 3 first from the staff and then from the applicant.
{~}
4 MR. SWANSON: The point that I understand we 5 are addressing is whether or not an extension of 6 discovery time should be permitted beyond August 6th.
7 JUDGE MILLER: We also want a response to the 8 statement that the information is contained only in the 9 FES and not in other information which is necessary to 10 have an SSR analysis at a hearing.
11 MR. SWANSON: Well, what I hear Dr. Cochran 12 saying or arguing is bottom line conclusion on a 13 contention of whether or not there is adequate support 14 for the staff's conclusion for site suitability source 15 term, and I don't understand why, Number One, we should 16 be arguing that now before the evidence is in, and Two, 17 what difference that makes to our decision today. If 18 the Board makes a finding on the basis of intervenor's 19 argument that what we have in our site suitability.
20 report is inadequate to support our calculation for site 21 s ui ta bility source term, so be it. That has nothing to 22 do with whether or not he is prejudiced in his discovery 23 rights right now.
24
, 25 O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
798
() 1 (Board conferring.)
2 JUDGE MILLER: Does the applicant have
{} 3 a n y, thin g on that point?
4 MR. EDGAP Yes. The item that Dr. Cochran 5 mentioned as Interrogatory 27 in the 19th set --
6 JUDGE MILLER: 27 of the 19th set?
7 MR. EDGARs That was the subject of a motion 8 to compel. After the motion to compel was dismissed, we 9 concurred. The difficulty they have is with the 10 response. Our response essentially said we would not 11 rely on CRBRP-1, which is a comprehensive PRA which was 12 done on Clinch River. The difficulty was in terms of 13 the definition of probability analysis ; tha t that can 14 encompass a lot of things, and our people had difficulty 15 in responding because they had not yet made a final 16 determination in regard to testimony preparation on all 17 analyses upon which th e y would rely. But they could say 18 they would exclude reliance on the comprehensive PRA.
19 We asked NRDC about it, and we got additional 20 definitions or probabilistic analyses, and they included 21 "anything that addresses the probability or theory in a 22 quantitative sense" or "any thing tha t provides 23 quantitative support for qualitative assessments of 24 failure."
25 What we then determined to do would be to O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
799 O ' uvaete our 41=coverr resvoase eaa ina1cete thet eo in we 2 were not in a position to say -- given the breadth of l
3 that determination or definition, that we knew what we 4 were going to rely on in our testimony in that respect.
5 What I have agreed to do now is given that 6 they have redefined it once more in a letter from Ms.
7 Finnamore to me, we will answer that by Friday. In any 8 event, the analysis upon which relied in our testimony 9 vill be provided two weeks in advance of the hearing.
10 We cannot at this juncture today tell them 11 with the breadth of these definitions make an informed 12 judgment, but we will endeavor to do so and we will, in 13 fact, meet the discovery deadline. This is the subject O 14 of testimony; it is not an original response.
15 MR. SWANSON: Mr. Chairman, I didn't get to 16 make my last point.
17 JUDGE EIlLER: We interrupted the staff in 18 order to ge t the comments of everyone on that point.
19 MR. SWANSON: Just one more point with regard 20 to whether or not extension should be granted for 21 discovery. As I pointed out, we will, by Friday, have 22 complied with the Board's order setting forth the end of 23 discovery on the site suitability report by August 6th.
O 2. 1.heve not hee rd , compe111ng reeson why there is eny 25 need to postpone that phase of the hearing.
O ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
- 800
() 1 One point that hasn't been , perha ps, brought 2 out again is the fact that we did send out the site
() 3 suitability report on the 11th of June. It may have 4 reached --
I don 't know when it reached the intervenors, 5 but a month later on July 13th, they sent out their 6 discovery on that.
7 Now, if there is an argument that insufficient 8 time was permitted to consider responses, then I guess I 9 am curious as to why the question didn 't come out a 10 little earlier, particularly in light of Ms. Finnamore's 11 statement a little earlier that there was very little 12 new in the site suitability report.
13 DR. COCHRAN Mr. Swanson seems to have 14 forgotten that he said we should hold our questions and 15 submit the questions to them all a t once. So we had to 16 hold our questions until the bitter end.
17 MR. SWANSON: Well, I think Dr. Cochran is I
l 18 confusing that with the second round where there was a l
19 much longer period of time in which questions could be 20 asked. But at any rate, the point still stands.
21 MS. FINNAMOREs Mr. Chairman, I would like to 22 make a couple of other points on this 26th set of 23 interrogatories which relates to the site suitability 24 report.
I 25 In sdiition to the 16 interrogatories that ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
001
() 1 staff has not yet answered, despite the f act that they 2 were due on the 27 th of July, there were also 17 3
(]
interrogatories that the staff called us up about, 4 objecting to. We called them back a week ago on the 5 27th of July --
6 JUDGE MILLER: That is Tuesday of last week, 7 isn 't it?
8 MS. FINNAMORE: Tuesday of last week, giving 9 our response to their objections, and we dropped 7 of 10 those interrogatories but did not agree that the other 11 10 were not based on new information.
12 So those questions have not been answered yet 13 either, and it is our understanding that it is not
()
7x 14 enough for the staff to answer in its interrogatories 15 that it objects. But if the parties cannot agree, it 16 must file an objection with the Board, which the staff 17 has not yet done for those 10 interrogatories.
18 JUDGE MILLER: I assume that they are refusing 19 to answer them on the basis of objections, and they have 20 now said they are going to have answers to all the 21 interrogatories by Friday, August 6th.
22 MS. FINNAMORE: I don't think their objections 23 have been erased. I think they continue to object to 24 those questions, if I am correct.
25 JUDGE MILLER: The Board has told you another l O
1 ALDERSON REPORTING COMPANY,INC, 400 VIRGINTA AVE., S.W., WASHINGTON, D C. 20024 (202) 554 2345
802
() 1 set of their objections. They should be in the form of 2 a motion for a particular order, citing all the 3 authorities or the equivalent. If responses are claimed
{' }
4 not to be siequite, there should be a motion so the 5 Boa rd can decide on those forthwith.
6 Now, we are getting towards Friday. I am 7 assuming now that there are not any answers or responses 8 that are based upon objections either as to the 9 interrogatories themselves or the adequacy of the 10 responses. This being Monday, the 2nd.
11 I am assuming now that for purposes of moving 12 this along, that there are_ going to be responses by gs 13 everybody on or before August 6th, and there are not d 14 going to be any f ailures to respond or objections to the 15 adequacy of responses at this late date.
16 Now, is this correct? Is everybody in the 17 same posture on that? Applicants, how about you? He 18 didn't hear me. By Friday is the cutoff date; 19 therefore, there are not going to be any refusals to 20 respond on your part, or any objections. And second, 21 there is not going to be any contention that the ansvers 22 of others are inadequate.
23 HR. EDGAR: We only have this one item 24 outstanding that I discussed. We have ne other items
- 25. pending.
O ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
803 1 JUDGE MILLER: All right. Now what about the 2 staff? Let's all of you get together now, because you
(} 3 don't want to have anything dangling or more contentions 4 made that everybody is taking advantage of them. Let's 5 get this over with.
6 HR. SWANSON: My under stan din g was that an 7 agreement was reached with the intervenors, and that 8 whatever the number left was that were not dropped would 9 be answered.
10 JUDGE MILLER: They are not going to be 11 objected to for half-way answers and because of X, Y, Z; 12 they are going to be full-fledged answers?
13 MR. SWANSON That is my understanding, yes.
14 JUDGE MIILER: Do you have any reason to doubt 15 it? We can confirm on all of you.
16 MS. WEISS: I am sorry, Mr. Chairman, I 17 couldn't hear the question.
18 JUDGE MILLER: Confirm among all of you. I 19 vant to be sure that no party of you three is going to 20 contend from this day hence until close of discovery on i I
21 the 6th, either that you don't have to answer 22 interrogatories because, or thst the answers furnished 23 to you are insufficient because, you have conferred 24 enough so that you know the situation ind you know that 25 at this late date, we expect full responsive answers O
l ALDERSoN REPORTING COMPANY,INC, 400 VIRGINTA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
804
() 1 both ways.
2 DR. CDCHRAN: We don't have the answers yet. l 3 JUDGE MILLER: You don 't know what they're
}
4 going to be? You're not talking about -- . Now look, 5 there aren't three counsel; there aren't even two 6 counsel. Let's get this thing under control, too.
7 The staff confers; they speak with one voice.
8 It is certainly not too much of a hardship to speak with 9 two rather than three voices.
10 MS. WEISS: I think, Mr. Chairman, that we 11 have not been informed that the staff -- the first we 12 heard they were going to answer these questions by 13 August 6th was today. So far as we knew, there was no O 14 specific undertaking to answer them until they made that 15 undertaking today.
16 JUDGE MILLER: Hold it just a minute. When 17 you make a statement I want to either verify it, or rule 18 it up or down. Is that correct, staff?
19 MR. SWANSON: No, it is not correct.
20 JUDGE MILLER: What are the facts as you see 21 it?
22 Mk. SWANSON: The NRC staff response of July 23 27 contains a sentence which begins at the very bottom
() 24 of the upper page and runs onto page 2. It indicates 25 that whenever it is noted that responses are to be O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
805 f%)
(. 1 provided at a later date, the staff will pr' ovide those 2 answers as soon as possible; and in any event, no later
(} 3 than August 6th.
4 JUDGE MILLER: Is that correct, Ms. Weiss?
5 MS. FINNAMORE: I think Ms. Weiss was 6 referring to the 10 interrogatories that the staff 7 objected to, and that we did not agree to drop. And we 8 just found a few minutes ago that they had planned to 9 answer them. s 10 When I spoke to counsel for the staff last 11 Tuesday and told him we would drop 7 but would not drop 12 the other 10, they said they would get back to me as to s
13 their response to~that proposal. I heard just now that 14 that proposal was adequate. >g 15 JUDGE MILLER: All right. Let's find out.
16 Staff, what is your position on th a t ?
17 MR. SWANSON: Well, the individual isn't here 18 right now who talked, but my understandin{g is that yes, 19 we will answer those. We will do so by August 6th.
20 JUDGE MILLER: Is that consistent with at 21 least now what you understand?
22 MS. FINNAMORE: Ourmainprobkemwithwanting 23 answers within 14 days, as was contemplated by the Board O 24 and all the parties, was that when we received these 25 answers on the 27th of July, we would have sufficient O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON. D C. 20024 (202) 554 2345
806
() I time before the August 6 deadline to confer with the 2 staff if we felt the answers were inadequa te or 3 evasive. That time has been' denied us at this point.
[}
4 We have no idea now whether those answers will be 5 complete under any standard of adequate discovery.
6 JUDGE-MILLER: Let me say this. I believe the 7 14-day turnaround did pertain to discovery that was 8 being held prior to this time, if my memory is correct.
9 MS. FINNAMORE: If you look at the 10 regulations, Section 2.704(b) --
1"1. JUDGE MILLER: That was an agreement of 12 counsel and parties, the 14-day turnaround by the 13 staff. Th'at was ss a result of the stipulation as 14 explained to the Board at that time. The staff could 15 have objected to all of these, I suppose. They have got 16 ground for objection. We are trying to cut through tha t 17 in'orher to move along fairly and expeditiously.
18 We were then told that all the counsel had 19 conferred on'that subject and had reached certain 20 sgreements. Staff had given up their right really to 21 require their interrogatories to go through the Board l
22 and the like which takes time and effort. In return for i
( 23 that, the Esct was that they would shorten the time so 24 tha t NRDC would have reasonably prompt responses, and 25 that is why the Staff proposed as I recall it to have a
)
ALDERSoN REPORTING COMPANY,INC, i 400 VIRGINIA AVE S.W., WASHINGTON, D.C. 20024 (202) 554-2345
807
) 1 14-day turnaround voluntarily and not go through the 2 Board, which would be a lot more than any 14-day 3 turnaround.
("}
4 Now, just a moment. Is that correct, staff 5 counsel? Anybody?
6 MR. SWANSON: Yes, it is. And that was 7 explicitly stated on page 12 of the Board's order of 8 April 14th.
9 JUDGE P. ILLER: Yes, because we picked it up in 10 our order. This was an agreement, now, of you folks as 11 counsel. Now, that is a little bit different than 12 coming in and.. telling us that you are being taken 13 advantage of by some other responses where we wish the 14 staff had given them to you sooner, yes. The staff 15 understands that was our wish. They acknowledge it.
16 They say in these particular interrogatories, to get the 17 information, they have some problems. But in any event, 18 the 14-day turnaround was neither applicable nor could l
19 they voluntarily f ollow it, if I am understanding it 20 correctly. But in any event, they would honor the 21 Board's order which was to have the discovery completed, 22 the answers in and so on by the coming Friday, August 23 6th.
O k- 24 I think that is a fair statement of the record 25 as the Board understands it. That is not quite the l
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
008 Q 1 same. But I believe it to be what you told the Board at 2 that time your agreements were and the underlying 3 reasoning.
4 MS. WEISS 4 I can accept that as your 5 characterization of what we agreed to, given the fact l l
6 the the schedule contempla tes one week for the 7 preparation of testimony before the end of discovery and 8 the preparation of testimony, given that the context of 9 this discussion mskes it impossible for us to meet that 10 schedule and has been made impossible by the actions of 11 others.
12 JUDGE MILLER: Presumably, you are not waiting 13 until today to st ar t p re pa ring your testimony at least 14 in rough draft. We would assume all of you 15 contemplating, and you have probably --
16 MS. WEISS: We have begun to prepare our 17 testimony, and as a result of the FES ve have had to 18 throw it out and consider starting it all over again.
19 JUDGE MILLER: Well, you don't have to throw 20 it all out. Whatever it is that is reasonably 21 addressing the issues as you see them or assert them on 22 site suitability, you certainly wouldn 't ha ve to throw 23 out. We assume that all parties have started drafting.
O 24 rou ao t weit uat11 the 1e=t =1=ute to ater re rour 25 case.
O ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
809 O(_/ 1 MS. WEISS: No, we don't, Mr. Chairman. But 2 you know that our view of these issues is different from
(} 3 what I gather the Board's view is, what I gather from 4 the drift of the discussion. We believe most strongly 5 that these issues are not separable; that the FES issues 6 are not separable.
7 JUDGE MILLER: Well, we think that they are.
8 Now you have already filed things before the Commission 9 and so forth. We don't want to get into various 10 remedies-= -
11 .
MS. WEISS: Well, you asked me --
12 JUDGE MILLER 4 Hold.it. We do not want to get 13 into various remedies you pursue, but the Ecard feels 14 and will t' ell you very shortly that in all probability V
15 the Boird is not barred from proceeding on a reasonable 16 basis with the schedule established which includes the 17 trial da'te.
18 Secondly, it is fair, however, that those 19 issues be scrutinized. Our most conservative view of 20 the issues is those of the Staff because the Staff, 21 differing in some respects from the applicants, says 22 there are certain ones that applicants think they should 23 meet that they say they can't.
()
v 24 Well, we don't want to ge t into that hassle, 25 so we do feel probably -- and we are going to announce O
V ALDnRSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7-.
810 4
- O ' it to rou nott1r -- !
i 1
l 2 Ms. ',! EIS S . If I might just complete my point, 3 if the Chairran As finished?
4 4
l 5 6
7 i
> 8
. i
.l 9 10 iI 11 12 i
! 13 O 14 I
15 4 .
16 17 18 19 20 ,
21 l
22 :
,! O 24 ;
I
- 25
!O i
ALDERSON REPORTING COMPANY. INC, l
) . - - - - . . ,
400 VIRGINIA AVE S.W., WASHINGTON, D.C. 20024 (202) 554 2345
811 O)
(
'. 1 JUDGE MILLER: You will leave me with a 2 dangling sentence, but I don't care. Go ahead.
3 (Laughter.)
[}
4 MS. WEISS: You were asking us, I thought, the 5 question which began this colloquy was Hadn't you 6 begun to prepare your testimony or had you waited for 7 the last minute? Gur concept is yes, we had begun to 8 prepare our testimony. We have not wai ted until the 9 last minute. Our concept of this case is different.
10 JUDGE MILLER 4 That may be, yes. I am saying 11 that it is not that you really have from the 6th until 12 the 23rd, that you have done some work on it. And to 13 the extent that some of the issues may be set aside as 14 FES matters, whether you agree with it or not, if that 15 be the result, then you will be that much farther ahead 16 in your prepared testimony. We are helping you.
17 MS. WEISS: I don't think so.
18 (Lauchter.)
19 5S. WEISS: I also would want to point out 20 that the consequence of the Applicant not providing an 21 answer at all to the question of what probabilistic risk 22 analysis they will present is that we haven 't begun to 23 be able to begin to draf t response.
24 JUDGE MILLER: Hold on, now. Let's find out.
25 Before when we met with you in March or April, O
ALDERSoN REPORTING COMPANY. INC.
400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
812
() 1 whenever it was, our understanding was that the LWA 1 2 issue, that you weren't going to put on evidence, and
{) 3 4
that neither the Intervenors or the Board on the LWA 1 phase were going to go into that issue.
5 MR. EDGARa And I have made it plain. The 6 problem is this. We have made it plain, we are not 7 going to rely upon the probabilistic risk assessment.
8 That is Contention 3A. That is out. We said that.
9 Their definition is very inprecise of what probability 10 analysis is. It could include adding two and two. What 11 We have told them is straight out, we are not going to 12 apply and use CRBRP 1. We recognize our obligation to 13 seasonably amend. We intend to do that. We believe our O 14 answer is responsive, and we have given them the 15 information that we know. We will accelerate our 16 response on seasonably amending and stay within the 17 August 6 date.
18 MS. WEISS: This is the example of these 19 games.
20 MR. EDGAR: It is not a game.
21 JUDGE MILLER: Le t's get down to reality and 22 be less emotional. I think that will move us faster.
23 We have told you tha t unless there is something that
( 24 changes our minds substantially, we are on the verge of 25 telling you, A, we are going to go ahead with the O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
813
{} 1 hearing; B, on the given date; C, on somewhat fewer 2 issues along the lines that have been discussed, but not 3 none.
O 4 Now, within that framework we are trying to 5 get you, Ms. Weiss, and all of you to the point where, 6 while you are meeting with us, since you ar e not going 7 to meet with us that often between now and Friday, let's 8 get decisions made on those areas that are significant 9 in terms of trial. We want to get you all to trial. We 10 find a lot of these anticipated problems, one way or the 11 other, reduce when we get to a trial situation. So we 12 vant to get you to site suitability and those 13 contentions that bear relationship to them or not. That O
\- 14 is where we are heading, so any way we could be helpful 15 to you or others, let's do it now.
16 HS. WEISSs There is a big question in my 17 mind, Mr. Chairman. I think I understand where you are 18 going, and of course, we reserve our rights. We don't 19 think it's right, but I understand the direction in
- 20 which'you are going.
21 One big problem that I have is this. Let me 22 pose this as a pratical problem.
23 JUDGE EILLER: Okay.
() 24 MS. WEISS: Do we now set the FES supplement 25 and the FES aside and go to trial on remaining issues as r
I i
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
^6-814
(~) 1 if that FES never existed?
V 2 JUDGE MILLER: Now, by the FES, let's be clear 3 also. We are talking about that supplemental FES which O 4 supplements the original and existing FES.
5 MS. WEISS: My question to you is do we set 6 aside all of these versions? It doesn't make any sense 7 to go to trial with the original 1977 FES now that we 8 know that that has been changed.
9 JUDGE MILLER: We don't think it's been 10 changed as much or as significantly as you think, 11 although there is no doubt that there have been 12 substantial changas, but we take the view that this 13 February 1977 FES, which is the existing FES, we are
( 14 talking about supplements and all that, but there is an 15 FES that has been there for some years. We are not just 16 prepared to say that all or even most of it gets thrown 17 out the window. We will hear from you on those respects 18 where you or others that say it needs modification.
19 That we can handle in an evidentiary way. We don 't 20 throw the baby out with the bath. That's why I 21 men tioned it, so that in terminology we don't confuse 22 each other.
23 HS. WEISS: My question is do we set it all O 24 e=14e2 25 JUDGE MILLER: My answer would be no because O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
815
(} 1 ve do have an FES, and to the extent tha t the known FES 2 bears upon site suitability, you and others may use it.
3 MS. WEISS: Let me pose a practical problem.
O 4 We have a man on the stand, the Staff's witness, who 5 says that he used source term X. We get to cross 6 examine that person. Are we required to -- our 7 reasoning is that source term is the wrong source term 8 to use because it requires a finding that a CDA is not a 9 credible accident. Now, are we required to cross 10 examine tha t man on all material that is in or derived 11 from the supplement to the FES?
12 JUDGE MILLER: No.
13 MS. WEISS: The original FES?
() 14 JUDGE EILLER: Clearly.
15 NS. WEISSs In my view, that doesn't make much 16 sense since we know that it has been substa ntially 17 changed, in my view. Or do we just cross examine him as 18 if neither the FES nor the supplement existed, and given 19 that we do that, do we proceed then with discovery on 20 the draft FES and/or the final FES supplements at some 21 later date or is that going on parallel?
22 JUDGE MILLER: Okay, let me confer now and get 23 you an answer. You're entitled to it. As a practical
() 24 matter, you are going to trial.
25 (Board conferring.)
O l I
l ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
816
() 1 JUDGE MILLER: Let me inquire first of all of 2 A pplicant and the Staff, a fair question has.been asked 3 by counsel for the NRDC. As we approach trial, we would 4 sure like to resolve these matters in a fair and 5 equitable way.
6 What is your response to that query as to what 7 their cross examination under the terms she hypothesized 8 is reasonably addressed to or not?
9 MR. EDGAR: Of the NRC Staff, right?
10 You know, the question has a framework which 11 is that there is some underlying document at issue.
12 JUDGE MILLER: Do you understand what she wa s 13 hypothesizing?
O 14 MR. EDGARs Let me give you -- I've got 15 another premise, or I'm confused, all right.
16 Did the Board say that we were going to 17 hearing on site suitability issues? Was that the basic 18 premise of the question?
19 JUDGE MILLERS It was my understanding as 20 having the matters urged that were not impacted by the 21 supplement to the existing FES, whatever it is.
22 MR. EDGAR 4 In any way?
23 JUDGE MILLER: In any significant way. I l () 24 don't want to use the same word, but insofar --
25 MR. EDGAR: My view of the situation is if we O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
1 I
817 1 go to hearing on Contentions 1, 2, and 3, tha t we
)
2 include in that we include in that the S taf f's Appendix 3 J of the FES and we go to hearing on schedule. The 4 finer cut at the problem that the Board could take is to 5 view the scope of Contention 1, 2, and 3 as encompassed 6 by the discussion and the site suitability report, all 7 right?
8 If that is the scope defined, then discussions 9 of the analysis in Appendix J would not be in.
10 JUDGE MILLER: What has been the 11 recommendation of the Applicants on that insofar as 12 scope of cognizable issues at hearing, if one is held 13 August the 23rd, are concerned?
( 14 MR. EDGAF As we have indicated in our 15 pleadings, Mr. Chairman, we think that we want to go on 16 1, 2, and 3, including Appendix J.
17 JUDGE MILLEE4 Staff?
18 MR. SWANSON Well, to answer the Board's 19 original question, which is somewhat narrower, again in 20 the context, as I understand it, Staff witness testimony
. 21 on Contentions 1, 2, and 3 at hearing, that probably 22 there would be no FES of f ered as evidence a t that time, 23 so he would have the site suitability report testimony
() 24 and examination would be limited to the scope of the 25 testimony. If our testimony referenced the FES and ALDERSoN REPORTING COMPANY,INC,
/00 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
818
() 1 indicated the witness relied upon it, it would sure be 2 fair game. I'm talking about the old FES. But I don't rg 3 understand that to be a very likely occurrence.
V 4 So I don't --
5 JUDGE MILLER: How do you distinguish the 6 Staff's position from that of Mr. Edgar where he said 7 Appendix J of the supplement to the old FES should be 8 gone into also by everybody except the staff, in other 9 words, by Applicants and NRDC.
10 MR. SWANSON: We don't intend to rely on 11 Appendix J for our site suitability testimony.
12 MR. EDGARs Mr. Chairman, our original 13 position was that the Intervenors and the NRDC should go O 14 to hearing on all issues, all right? I am assuming that 15 there is no reason why they can't present their evidence 16 on every element of 1, 2, and 3. The Staff then could 17 be confined in its analysis to the parameters of the SSR 18 which --
19 JUDGE MILLER: Just a min ti te . If all parties, 20 including NRDC, go to all issues like Appendix J, then 21 how can they do that when that is not final, when that 22 is just a draft? That is the point they are urging, and 23 it makes sense.
() 24 We didn't understand that you were saying that 25 NBDC should go into cross examination of a final 0
l ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554-2345
819
() 1 document that has not yet been issued by the Staff, 2 which is subject to comment. We didn't -- well, if that 3 is what you are urging, tell us why.
4 MR. EDGAR: Your premise is that it is 5 straight site suitability, all right? Then the scope if 6 the SSR. That's it.
7 JUDGE MILLER: That is what we had supposed.
8 Now, does that impact upon the recommendations 9 that you gave the Board this morning?
10 MR. EDGAR: Yes. That means by necessary 11 implications you have turned some of them down.
12 .10DGE MILLER: Yes, I guess it would.
13 3R. EDGAR: That means we lost, in sum.
14 JUDGE MILLER: We are not saying you lost or 15 von. We are simply trying to see how we can reasonably 16 go to hearing and accomplish something, and yet without 17 prejudice to the rights of Intervenors and others to 18 have a fair shot at discovery and evidence on the 19 supplement to the FES.
20 MR. EDGARs I was conf used as to the original 21 question. I understand it now, and the answer, in my 22 view, is the SSR, that 's it.
23 MS. WEISS: That's that --
() 24 JUDGE MILLER: That's the Staff view, isn't 25 it? It always has been.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
820 O ' sa saaxson= thet - correct-2 MS. WEISS: That answers the question partly
]
3 but not completely. That answers the scope of what 4 would be the direct case. And I must say that I thought 5 that was what the answer to that question would be. It 6 doesn't answer the question of what is the scope of 7 cross examination, and a necessary corollary to that 8 question is what cross examination can be saved for the 9 second stage of this bi-bif urcated proceeding?
10 JUDGE MILLER: I will answer your second one 11 first.
12 We have not purported to zero in on the FES in 13 the future, the putative FES.
O
~
14 MS. WEISS I'm sorry, you said you have?
15 JUDGE MILLER: Have not. We said we the Board 16 have not zeroed in on it. Consequently we are not 17 prejudicing anybody as to the fair scope of cross 18 examination or testimony in the future on the FES 19 because we have removed it from consideration here at 20 this time, in two weeks, or whatever it is.
21 Now, the fact that there might be overlap 22 doesn't bother us. Overlap all you want, but render 23 under site suitability that which is reasonable to site O 24 suiteb111t7 We on t oresudice whet reu do in the 25 FES. We are only going to take one thing at a time.
O ALDERSoN REPORTING COMPANY,INC, 400 VIRGINTA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
821 !
1 MS. WEISS: So the Board is saying that the
[}
2 NRDC should and indeed must reserve all questions that 3 relate to the FES or any material presented in the FES O 4 until the FES is final and we get to that stage of the 5 hearing?
6 JUDGE MILLERS We say they may. Whether or 7 not we say they must is whethar or not this is an 8 overlap situation and the fact that some FES material 9 might have slopped over into our site suitability, but 10 if it does, then you should cover it as site 11 suitability, even though you may have some other. But 12 you don't know what the other is.
13 Don't speculate any more than wha t you want to 14 be speculated about in the FES. '
15 MS. WEISS: I'm wondering if in that category 16 of what is slopped over we don 't include sort of the 17 critical piece, and that is Appendix J.
18 JUDGE MILLER: Appendix J in all probability, 19 as we understand it, would not be a subject gone into.
20 There might be portions of something. I don't want to 21 try to anticipate everything, as to what is the 22 reasonable scope of cross. It is a complex subject 23 anyway. However, the whole point is that you are not
() 24 going to be required to and you may not be permitted to 25 go into Appendix J as Appendix J, which is the O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554-2345
822 1 supplement to an FES.
2 Now, to the extent that there is some overlap, 3 all right. You will certainly be permitted to go into O 4 those matters which are reasonable cognizable as site 5 suitability. Whether or not they might in the future 6 might be something else. Don't worry about it. Look at 7 site suitability.
8 MS. WEISS: What I'm really concerned about is 9 would we be required to? And if you say to us, no --
10 JUDGE MILLER 4 You don 't have to cross examine 11 at all. You don't have to put on any evidence.
} 12 MS. WEISS 4 Would we be required to or forfeit 13 our right to do it at a later time? That is the 14 question I sm asking.
15 JUDGE MILLER: No, not provided that at a 16 later time it is reasonably within the scope of what we 17 will then know when we see that supplement to the FES 18 that none of us has seen.
19 20 21 22 23 24 25 O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
823 (Board conferring.)
-)
v' 1
2 JUDGE MILLER. All right. Are there any 3 questions now about the scope of issues which the Board O
\/ 4 is now considering? We have indicated to you that as a 5 threshold matter, we have just about decided -- we still 6 haven't quite come down it, but we are just about to 7 tell you -- before we can file an order because it takes 8 time to get it out, although we are going to try to work 9 on it tomorrow.
10 MR. SWANSON: We have a question.
11 JUDGE MILLER: But we would like nonetheless 12 to let you know as much in advance as we can. This is a 13 Monday before the 6th, before the 23rd, so we are trying
() 14 to block things out for you. If you have questions of 15 each other, ask them so we can get us into trial.
16 MR. EDGAR: I would be very much interested in 17 hearino the Board's ruling.
l 18 MR. SWAMSON: We had a question because when l
19 we gave our original list of issues, we contemplated 20 that the proposal before the Board, applicant's and our 21 proposals, did contemplate going forward with l
22 environmental matters by parties other than the staff.
23 And we threw in Contention 7 which is an environmental
(} 24 contention, we believe, not a site suitability 25 contention because we felt that that was not addressed ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554 2345
824 l
{} 1 by -- at least not necessarily environmental; it was one 2 that is addressed by --
3 JUDGE MILLER: I see what you mean. I think O 4 we had better go back over those contentions or portions 5 of contentions which you will now advise the Board are 6 suitable to be addressed at the evidentiary hearing.
7 Because I realize now you are talking more expansively 8 on the one hand and less on the other.
9 So now that we are indicating to you the site 10 suitability we are looking at, going into it won't 11 foreclose you on something else. We will worry about 12 that later. We are all covered. We could probably 13 persuade you to stipulate. But if isn't, go ahead. But
. 14 doa't worry about the fiefdom; let's worry about getting 15 the evidence on the site suitability in a useable form, 16 both filed testimony, prefiled, and cross examination.
17 MS. WEISS: You can see, though, where this is 18 critical to us, since these parties were taking the 19 position tha t we had to go forward on everything.
20 JUDGE MILLER: Well, I didn't understand they I 21 were tha t fo rwa rd , but if it is, that is going to cut l 22 down on what the Board considers reasonable. We knov 23 all of these will not be perfectly --
we are doing our
() 24 best to get cognizable issues.
I 25 MR. EDGAR: Mr. Chairman, I want to make sure ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554 2345
825 I understand. You are saying we define the issue of
(]) 1 1
2 site suitability. Now, please give me your views on the )
3 contentions which go in the site suitability category, 4 and which would be deferred for Phase 2. !
l 5 JUDGE MILLER: The site suitability category )
6 in whole or in part, but designate where it is a part.
7 MR. EDGAR: Understood.
8 JUDGE MILLER: We want to get all we can on !
9 site suitability, but we are not going to penalize 10 anybody for going into it, if in the future when the FES 11 supplement comes out, there may be matters they would be 12 entitled to. We will have to sort them out to avoid -
13 repetition but I think we can all do that. We will 14 worry about that tomorrow. Today, let's worry about 15 site suitability.
16 Now, with that mind, tell us first of all, 17 which issues or portions of them the applicants 18 recommend. We will-do the same with the staff and we 19 vill do tha same with the NRDC. Do you have a problem 20 with that, Ms. Weiss? You have a problem but is it 21 insuperable?
22 MS. WEISS You want us to go issue by issue?
23 JUDGE MILLER: No, we are going to take them
() 24 all. I am going to take those tendered by the parties 25 for Board consideration for a site suitability trial on O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
f l
l 826 I l
I
{} 1 the 23rd of Auoust.
2 MS. WEISS: I think we can speak -- given we 3 know what your ruling is, we can speak to that.
O 4 JUDGE MILLER: You know pretty much what our 5 ruling is. I will ask the applicants to go ahead, which 6 will give you a target. Do you want a moment to think 7 about it, Mr. Edgar?
8 MS. WEISSs Could we -- .
9 MR. EDGARs No, that is all right. I will 10 have it in two seconds.
11 MS. WEISS: I just wanted to suggest that it 12 might be easier if we went contention by contention, if 13 each person sta ted their view.
( 14 JUDGE MILLER a I don't know. Is it necessary 15 to take each one?
16 MR. EDGAE I am going to go through and give 17 them to you.
18 MS. WEISS: We do have one general question 19 which I can save for after this or do it before. I just 20 vant to let the Board know that it sort of follows on my 21 earlier question of practicality.
I 22 JUDGE MILLER: All right. We are interested 23 in practicality of trial prepara tion .
Do you want me to save it?
(]) 24 MS. WEI3S:
25 JUDGE MILLER: Well, since they are all ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
827 I working presum3bly, I don't want to interrupt their 2 train of thought.
3 MR. EDGAR: Mr. Chairman, I am prepared to O 4 proceed.
5 JUDGE MILLER: All right. Tell us what you 6 are doing now.
7 MR. EDGAR: These are a list of the 8 contentions that we see as related to site suitability.
9 Where there is a partial relationship, I will define 10 that. Otherwise, it is the particular contention as
~
11 being solely site suitability.
12 Contention 1(a), Contention 2(a), Contention 13 2(b), Contention 2(c), Contention 2(d), par ticula rly the 14 containment leak rate. Tha t talks about the 15 containment, and for site suitability you need to know 16 the assumed leak rate. 2(e), and tha t is entirely site 17 suitability. I should note that that is, in particular, 18 the 20 CFR Part 100.11(a) dose guideline values.
19 2(f) (g) and (h), partly, and the 20 qualification placed on it would be those computer codes 21 used for performing the 10 CFR Part 100.11(a) site 22 suitability analysis. 3(b), 3(c) -- again, site 23 suitability analyses only. And 3(d). That completes O 24 the 11 t or co=te ti = '- eaa 3 1===e -
25 There is one other issue which we regard as O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
828 essentially related to site suitability; that is, 5(b).
(]) 1 2 That involves the nearby facilities, the diffusion 3 plant, ORNL and Y-12.
4 JUDGE MILLER: Is that it?
5 MR. EDGARs That is it.
6 JUDGE MILLER: 1(a), 2(a), (b), ( c) , (d) and 7 (e); portions or limitations upon (f), (g) and (h).
8 3(b), (c) and (d), and 5(b).
9 MR. EDGAR Yes, sir, and there was a 10 limitation on 3(c) rela ting to the codes for site 11 suitability analysis only.
12 JUDGE MILLER: Okay. Does staff wish to give 13 us their views on these projections.
14 MR. EDGAR Did I say 3(c) in my last remark?
15 JUDGE MILLER: You said 3( c) .
16 MR. EDGAR 3(c), that is what I meant to say.
17 MR. SWANSON: We agree.
! 18 JUDGE MILLER: Now, NRDC?
19 MS. WEISS: Are you waiting for NRDC?
20 JUDGE MILLER: Yes.
21 MS. WEISS 4 I guess we would ask for a few 22 minutes to confer.
23 JUDGE MILLER 4 Okay.
() 24 (Short recess.)
25 JUDGE MILLER: Ms. Weiss, have you had an O
ALDERSoN REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W WASHINGTON D.C. 20024 (202) 554 2345
829 opportunity to confer and develop a position on these
(]) 1 2 contentions or portions of them which have been rejected
- 3 now for the site suitability phase of the hearing, which 4 is what th e Board was meaning by the trial scheduled on 5 the 23rd of August.
6 MS. WEISS: Yes, we have, Mr. Chairman. I 7 will let Ms. Finnamore speak to that point.
8 MS. FINNAMORE: M r. Chairman, we stated in our 9 motion that if the Board saw fit to bifurcate these 10 hea rings in the a way or proposition which we disagreed 11 with strongly, as you know, it must then comply with the 12 requirements of Marble Hill and Barnwell, two other 13 cases cited in the motion, which state the procedures 14 that the Board must use and the standards it must apply 15 in determining whether to allow hearings to go forward 16 on certain issues while hearings on other issues await 17 issuance of a final impact statement or supplement.
18 Ihe Marble Hill case is clear. Issues may go 19 forward and parties may present evidence on those issues 20 only if those issues are " entirely independent and 21 unrelated" to other issues for which hearings are 22 postponed. The Barnwell case says the same thing; that 23 if it determines that an FES supplement is being issued
() 24 and circulated, the Board can give no further 25 consideration to the subjects involved in that O
ALDER $oN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
830
() 1 recirculation until a final supplement is prepared.
2 Furthermore, the Barnwell Board said that if a q 3 certain issue is related to one on which a supplement is
%J 4 being prepared, hearings cannot go forward on the 5 related issue, as well. Therefore, the standard is 6 clear.
7 JUDGE MILLER: Give me a citation. Which 8 citation is that?
9 MS. FINNAMORE: That is ALAB 296, 2 NRC, 671, 10 1975 case cited on page 13 of our motion.
11 JUDGE MILLER: And what was the o ther case, 12 Marble Hill? What is that citation?
13 MS. FINFAMORE: ALAB 371, 5 NRC, 409. That is 14 a 1977 case cited on page 15 of our motion to reschedule 15 the hearings.
16 In applying the standard to intervenor's 17 contentions, it becomes rapidly clear that the ones that 18 applicant cites; namely, 1(a), 2(a), 2(b), 2(c), 2(d),
19 (e), (f), (g) and (h), 3(b), (c) and (d), a nd 5(b),
20 cannot be entirely separated out or unrelated from the 21 issues that are going to be postponed until the final 22 FES draf t supplement is issued in final form.
23 The reasons for that are the ones we have ,
() 24 stated in our motion and reiterated today. As stated 25 before, the question of a core disruptive accident is
}
l l
l ALDERSoN REPORTING COMPANY. INC, l 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
831
() 1 one of the most potentially greatest environmental 2 impacts tha t this plant could have. And the staff 3 recognized that when it issued the final draft 4 supplement with Appendix J. It make it very clear that 5 this is an important subject to be discussed in the 6 impact statement.
7 The Board also made it clear when it subsumed 8 our proposed Contention 20 into Contentions 1, 2 and 3, 9 and tha t Contention 20 specifically dealt with the FES 10 discussion of core disruptive accidents.
11 As we have also stated before, Contention 12 2(e), for example, relates both to the doses to an 13 individual and the health effects resulting from such 14 doses. We don 't believe that there is any way that one 15 can separate ou with a fine-toothed comb those specific 16 elements of what is, in itself, a subcontention of 17 Contention 11.
18 We also feel that Contentions 3(b), other 19 accidents that should be considered with a design basis 20 for the plant, are issues that are environmental impact 21 statement issues most definitely. And in addition, 5(b) 22 we feel is an FES issue. Unlik e the other, we feel 23 Contention 5(b) is not a site suitability issue at all.
() 24 5(b) relates to the impact of nearby facilities on the 25 suitability of the Clinch River site under NEPA, as O
ALDER $oN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) $54 2345
832
(} 1 opposed to alternative sites.
2 Specifically, it relates to the Oak Ridge 3 gaseous diffusion plant, the Y-12 and the Oak Ridge 4 National Laboratory. If you will look at the draft 5 supplement and notice in Appendix L a discussion of 6 alternative sites, the nearby industrial and military 7 transportation facilities, sites discussed in that 8 appendix are all discussed. ~
9 The purpose of our Contention 5 --
10 (Pause.)
11 The purpose of Contention 5 is to determine 12 whether that proposed CRBR site is significantly -- or 13 if other alternative sites -- are significantly better 14 than the Clinch River site because of the . presence of 15 nearby facilities, since an accident at the Clinch River 16 might result in long-term evacuation of those 17 facilities. It is not, and we do not propose to argue 18 the standard in the site suitsbility regulatory guide, 19 which is the reverse situation; whether accidents at 20 those nearby facilities would impact on the reactor 21 itself.
22 If you look at the first sentence'in 23 Contention 5 it ir clear that this is a NEPA, issue; not one that we intend to raise for site suitability
(]) 24 25 purposes.
O ALDERSON F,EPORTING COMPANY,INC, 400 VIROINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
I l
833 I
() 1 JUDGE MILLER: Is it a safety issuei 2 MS. FINNAMCRE: It has to do with the 3 discussion in the FES of alternative sites, and -
4 alt e r na t ive sites are compared with the Clinch River 5 site on several f actors, and one of them is the presence ~,
6 of nearby facilities.
7 JUDGE MILLER: Well, would not the presence of 8 nearby facilities be a safety as well as~an environment 9 issue?
10 MS. FINNAMOREs For purposes of 10,CFR 100, 11 yes. That has to do with if an accident at those 12 facilities would impact on the reactor.
13 JUDGE MILLER: Yes.
14 MS. FINNAMORE: That is no t something we 15 intend to argue; therefore, it doesn't --
16 JUDGE MILLER: Anything you don't intend to 17 argue we won't argue about now. We are talking now 18 about controverted issues, and anything that you don't 19 either wish to cross examine or file pre-filed testimony
[
20 on or go into as a site safety matter, don't worry about 21 it.
22 MS. FINNAMORE: That is correct. I think 23 applicants have understood our contention. It relates
() 24 only to the FES and we feel it should be postponed until 25 the supplement is issued.
l (2)
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
834
() 1 JUDGE MILLER: Wait a minute. What was that?
2 Wheel that past me again. Is it a non sequitor or is it 3 a brown cow? I didn't~quite catch the significance of 4 your last statement. I didn 't understand you. How did 5 you vrap that one up?
6 MS. FINNAMORE4 Applicants gave you a list of 7 contentions that they feel relate to site suitability 8 matters.
9 JUDGE MIbLEP Yes.
10 MS. FINNAMOREs If the Board is requiring that 11 hearings go forward on site suitability issues, these 12 are the issues that should be heard.
13 JUDGE MILLERS That is what they said. Now, 14 are you telling me what you say?
15 MS. FINNAMORE: I have two points. The first
- 16 one is that we feel that all the issues, all the 17 contentions mentioned by applicants, are not entirely 18 independent and unrelated to issues that will be 19 postponed for hearing until the supplement is issued.
20 JUDGE MILLER: They may not be entirely 21 independent, but the question we a re asking you now is 22 do they have any nexus, any connection, any linkage, 23 with site suitability safety matters?
() 24 3 MS. FINNAMORE:. That is right. My second 25 point was that they all do except for 5(b).
(
l ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
835 i
() 1 JUDGE MILLER : Then let's zero in on 5(b). If 2 you are saying there is no connection and you are not 3 urging it on site suitability and so forth, I think you 4 should be addressing us on that. We are not going to 5 find a thing totally independent. We don' t accept that 6 test. It shows that the Appeal Board -- that the 7 Licensing Board are in the best position at these times 8 to make these kinds of determinations, but they are not 9 going to say intervene every time and say you have the 10 vrong category.
11 They use the language in the context of the 12 case where the question there had to be an amended 13 notice. So if there was an amended notice, put it to 14 applicant. ALAB 371 5 NRC is a far cry from 15 establishing an immutable NRC principle that in order to 16 proceed in segmenting cause for hearing and starting up i
17 for site suitability that we can entertain only those 18 issues that are antirely independent.
19 So we don't think the case holds that, we 20 don't think logic holds tha t. You are free to reverse 21 us. You have a lot of things pending before the 22 Commission and maybe the Appeal Board. I don't know and i 23 I don't really care. We are going to decide as we feel 1
() 24 we should decide, and you are perfectly free to take 25 wha tever action you want. We are no t going to take that l
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
836
() 1 poin of view. It has to be entirely independent.
2 So, get back to the realities of the thing 3 which are shether or not the contentions or parts of 4 contentions that have been identified by applicants and 5 concurred in by staf f as having some reasonable 6 relationship or significance to site suitsbility matters 7 -- tell us first of all if you concur to the extent that 8 you say yes, these are matters that should be gone into.
9 If you don't care, all right. You can say you 10 don't care. Or if there are others you say we should 11 look at on site suitability, then you might want to add 12 more to the list. I don't know. But we are asking you 13 to comment in terms of what we have indicated to you are O 14 the parameters of the decision the Board has made, has 15 told you about and adheres to; namely, that we wish to 16 proceed with an evidentiary hearing on a given date on 17 the site saf ety-related ma tters th a t we have defined, 18 the SSR. Without precluding you from putting on evidenc 19 here, but that doesn ' t preclude you in the future if you 20 vant.to address it. We will address that if we have to.
21 But other than that, you are not being injured 22 in any way by future cross examination or putting on 23 proof on the supplement circulated in the final final
! () 24 FES, or the product of that. So I do not really see how 25 you can be hurt.
l )
l ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
837
{) 1 MS. FINNAMORE: The reason I bring this up is 2 because since many of these contentions ov?rlap, it 3 seems to me that the Board could not make a final site O 4 suitability determination before we had an opportunity --
5 JUDGE MILLER: That might be. We said we are 6 not going to make the findings. Remember? We are not 7 going to make the findingc. We are taking the 8 evidence. Insofar as there is more to be done when we 9 get to the findings, which will be Phase 2, okay. I 10 will take your word for an argument that it is not 11 relevant to what we are trying to decide today.
12 MS. FINNAMORE: That is what I was saying 13 before. In onr mind, all of the contentions and 04 14 subcontentions mentioned by applicant are relevant to 15 site suitability except for 5(b).
16 JUDGE MILLER: 5(b). What is 5(b)?
17 MS. FINNAMORE: Contention 5 rela tes to our 18 challe.,ges to the alternative sites review in the FES.
19 5(a) relates to meteorology and population density; 5(b) 20 relates to the presence of nearby facilities.
21 JUDGE MILLER. All right. Now, do I 22 understand that you don't wish to go into the issue of 23 whether or not there are any site suitability or
() 24 safety-related issues on the question of the effect or 25 impact possibly on nearby f acilities?
l ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
838
() 1 DR. COCHRANs Mr. Chairman, could I respond to 2 that?
3 JUDGE MILLER : Yes.
4 DR. COCHRAN: You threw in a ringer when yo2 5 said "or safety issues."
6 JUDGE MILLER: Well, site suitability at least 7 has that connotation of safety issues.
8 DR. COCHRAN: Let me tell you what might help 9 you understand this issue. The applicant a nd the staff, 10 for purposas of determining whether these plants can be 11 evaucated properly, has done a dose estimate at those 12 sites. The purpose of doing tha t dose estima te -- they 13 have, at laast on some occasions, maybe all occasions, 14 used the site suitability source term as the release 15 against which to judge what these dosages are.
16 Now, we might -- I would object that that is 17 the appropriate release to assess for judging wh e the r 18 these can be adequately evacuated. In that limited 19 respect, these relate, through the applicant's and the 20 staff's analysis, to the site suitability source term.
21 However, the contention by NRDC is a NEPA contention and 22 is really independent of the site suitability finding.
23 So if you are making the statement is it
() 24 related to 10 CFR 100 requirements, the answer is no.
25 If you just casually throw in "or safety issues" the l
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345 i
839
() 1 answer is yes.
2 JUDGE MILLES: Well, we consider these are 3 broad terms that really didn't have much relevance 4 before the Calvert Cliffs opinion because you threv 5 everything in. Since then, there has been a division 6 between environmental and safety. There are those which 7 have overlapped. There is no bright line between them.
8 You have just got a little bit of leftover history like 9 a vestigial chair, site suitability which has safety 10 significance.
11 If you don't want to go into it, don't.
12 Nobody is saying you have to or you will be penalized if 13 you don't. If you want to save it for when you think it 14 is appropriate, it would have to be relevant to the FES 15 as it is finally modified and so forth. But if you are 16 satisfied it is and you wan t to go into it, be my 17 guest. We are not trying to prolong this first phase of 18 the hearings. If you don't want to go into it, don't.
19 DR. COCHRAN: We want to go into it in the 20 FES, and we don't want to be penalized for not having 21 gone into it in site suitability.
I 22 JUDGE MILLERS I have said you won't be 23 penalized, provided you can show it is in the
() 24 appropriate broad scope of an FES supplemented issue.
25 And you don't seem to think you will have any troubles O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
840
() 1 you think it is all th e re . But surely, you could show 2 some reasonable relevance to th a t to one of more of the 3 FESS, fine. If you can do that, fine. You are not 4 going to be penalized. It saves you typing, clean white 5 paper and all the rest of it.
6 Because we are going into a limited phase of 7 site suitability which is roughly called the safe ty 8 aspects as distinguished from environmental for 9 historical reasons. It is not trying to force you into 10 any mold.
11 DR. COCHRAN I am sorry, Mr. Chairman, but 12 every time you throw in the word " environmental" meaning 13 NEPA and " safety" meaning in your words " site 14 suitability" --
15 JUDGE MILLER: It is more than that, of 16 course. But here now in the preliminary stage, I am 17 talking about site suitability having largely, not 18 wholly, but looking at the safety side rather than the 19 environmental side in a rough way.
i 20 DR. COCHRAN To me, that is an incorrect 21 perception. I would say site suitability, or the 22 findings you have to make under 10 CFR 100 and NEPA, is 23 routine releases and safety isrues. They are both in
() 24 there. Safety is not outside of environmental issues.
25 JUDGE MILLER: All right. I told you we are ALDERSoN REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
841
() 1 not making findings now. We are taking evidence, but we 2 are not making findings, remember? A, B, and C.
3 DR. C3CHRAN Are you making findings on 4 Chapter 7.2 in the old FES? That is a safety issues 5 tha t is not --
6 JUDGE MILLER: I don ' t know. I don't want to 7 get into the intricacies. We have given you the general 8 lines. I think it is sufficient to come to trial. File 9 your pre-filed testimony in advance. We will know then 10 who your witnesses are going to be. We will know then, 11 or we will start to see, what the issues are for a 12 ruling on admissibility.
13 MS. WEISS: I think I understand what you have 14 said thus far. There is one additional I think 15 different set of issues tha t I would like to have the 16 Board and'the parties address if I could.
17 JUDGE MILLER: Okay.
18 55. WEISS: We made a motion to the Board that 19 it reconsider the scope of the issues admitted in the 20 LWA and the scope of even those issues that weren't in 21 the LWA. I am sure the Board is familiar with the 22 arguments that we made.
23 A n ticipa ting that the ruling may be D)
(_ 24 unfavorable, or that the ruling may at least not come 25 until after we are finished with this stage of the O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
l 842
() 1 proceeding, there is some additional relief that I think 2 we require, given at the very least that I don't expect 3 a ruling.
4 JUDGE MILLERS What is that, Ms. Weiss?
5 MS. WEISS: We need to make sure that the 6 scope of the applicant's case primarily will not, in any 7 way, be related to information, won't rely in any way on i
8 information or conclusions that were initially derived 9 from using the reliability program.
10 In other words, when the applicants say to us 11 that there are some codes that are being used for 10 CFR 12 100.11(a), the site suitability analysis, we need to 13 know and I would like to know today if I could what 14 those codes are. And the assurance that there will be 15 reliance on no information that is derived from any 16 other codes.
17 And then we can go ahead and prepare our~ case 18 and our discovery and prepare our cross examination.
19 JUDGE MILLER: Let me ask the applicants.
20 MR. EDGARs She just mixed three different 21 things. We will not use any codes tha t are developed in 22 our reliability program. The answer -- I really am at a 23 loss to understand that question.
() 24 JUDGE MILLERS What are those three things?
25 MR. EDGAR As we understand it, we think you I
ALDERSoN REPORTING COMPANY,INC, i 400 VIRGINTA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
843
() 1 can go to hearing on Contentions 1, 2, and 3, the site 2 suitability elements of that. The scope of the site 3 suitability information is well defined in the staff's 4 site suitability report. I mean, that is a finite 5 document; it tells you just what kind of information 6 would be used. We would follow the pattern of the 7 staff 's site suitsbility report.
8 JUDGE MILLER: Now, hold it. That is an 9 updated SSR?
10 MB. EDGARs That is correct.
11 JUDGE MILLER Which indicates with black 12 lines in the margins where there are modifications or 13 additional material to the site suitability report of 14 1977. Is that correct?
15 MR. EDGARs That is correct, that is correct.
16 JUDGE MILLER: That is the document that we 17 did and do regard as being certainly primary in 18 delineating issues. Does anybody have any problem with 19 tha t document?
20 MR. EDGAR: We do not. We feel that that does 21 establish the right scope.
22 JUDGE MILLER: You said there are now three 23 matters tha t Ps. Weiss , you thought, was confused on.
() 24 MR. EDGAR: The first one was overlapping the 25 reliability program and codes. The second one is the O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
i I
l 844 right scope as set forth within the four corners of the
(]) 1 2 staff's SSR.
3 JUDGE MILLER: To wha t extent does it go into 4 codes?
5 MR. EDGARs This gets into the third point.
6 The codes the applicant has relied upon are not the same 7 codes the staff has relied upon.
8 JUDGE MILLER: Let's identify those of the 9 applicant's, and then let the staff speak for itself.
10 ER. EDGAR: The applicants have relied on --
11 and there has been extensive discovery upon, indeed, no 12 limitations upon discovery of the codes -- SAS, S-A-S, 13 VENUS, REXCOHEP --
14 JUDGE MILLER: How do you spell that one?
15 MR. EDGAR COMRADEX -- Let me go back a 16 step. REXCOHEP, R-E-X-C-0-H-E-P, and COMRADEX, 17 C-0-M-R-A-D-E-X.
18 JUDGE. MILLER: That is four you have 19 identified. Are there anymore?
20 MR. EDGAR: PLUTO.
21 JUDGE MILLER: Okay, Pluto, come here. Is 22 there a number five?
23 (Laughter.)
() 24 JUDGE MILLER: Is that truly the extent of it?
25 MR. EDGARs Yes.
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
P 845 1 JUDGE MILLER: All right. Ms. Weiss, you and 2 your colleagues wrote them down. I presume you and your 3 colleagues know what those are.
O* 4 Ms. WEISS: I think Dr. Cochran knows which 5 they are.
6 DR. COCHRAN: Yes.
7 JUDGE HILLER : Let me see which codes the 8 staff has relied upon or will rely upon for the site 9 suitability issues and confined to those numbers that 10 the staf f and applicants now previously furnished the 11 Boa rd and the parties?
12 13 14 15 16 17 l
18 19 20 21 22 23 O 24 25 O
ALDERSoN REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
846 1 MR. SWANSON: There are three, and those are 2 the ones we previously identified to the interver. ors 3 through discovery, the TRAC code, T-R-A-C, CRAC, 4 C-R-A-C, and HAARM, H-A-A-R-M.
5 DR. COCHRANs That's all right. I know. I 6 think it is H-A-R-M.
7 MR. EDGAR We have two more, I have been 8 advised.
9 JUDGE MILLERa Pluto has two more. This is 10 going to be seven, now.
11 MR. EDGAR: H-A-A-3 and another one, 12 C-A-C-E-C-0.
13 JUDGE MILLER 4 C-A-C-E-C-0, which is Number 14 7.
15 DR. CCCllRAN: Mr. Cha irman ?
16 JUDGE MILLER: Yes. Are you familiar with 17 those, Dr. Cochran? I mean, reasonably and to the 18 extent that you recognize them?
19 I think we are flooding the Court Reporter.
20 (Laughter.)
l 21 DR. C3CHRAN: Mr. Chairman?
22 JUDGE MILLER: Yes. I will bring you in when 23 I can get them off the air.
O 24 <te= eater-)
25 JUDGE MILLER: Go ahesd.
I ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
l l
847 l
() 1 DR. CDCHRAN: There is an inconsistency with 2 what Mr. Edgar mentioned. First he said the site
- 3 suitability report establishes the scope of the site 4 sui ta bility analysis. Sitability, the report in the 5 staf f 's esse does not rest at all on the calculations 6 tha t are envisioned by the SAS, VENUS, REXCOHEP, and 7 PLUTO codes. Those would be beyond the scope of the 8 site suitability report when we get into the analysis of 9 the CDA itself.
10 The second point is --
11 JUDGE MILLER: Wait a minute. Let's get the 12 first one. Do you con tend that is putting the 13 intervenors in some unfair advantage that we are going 14 into site suitability rather than what we are calling 15 environmental, or is this a different argument?
16 DR. COCHRAN: Well, you have been putting me 17 at a disadvantage ever since you started this morning.
18 JUDGE MILLER: Sorry about that.
19 DR. C3CHRANs I am just trying to straighten 20 out what the scope is. Ini tially the scope was defined 21 by the site suitability report. Now I find the
[
22 applicant has expanded the scope well beyond the site 23 suitability report 1.nto accident CDA snalyses of the
() 24 type that one would do indeed with these codes and the 25 types of calculations, for exsmple, that are presented O
l I
i ALDERSoN REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554-2345 l
848 1 in the GE report, GEFR-00523 and CRBRP Volume 3, 2 oe
(~}
2 3.
3 JUDGE MILLER: Let's assume that is so. What O 4 is the significance of your observation?
5 DR. CDC9HANs Well, the applicant told us in 6 our deposition of the applicant earlier tha t they 7 weren't relying on these types of codes for site 8 suitability.
9 JUDGE MILLER: In the deposition, were there 10 issues to be gone into or the interrogation of the 11 witness limited to site suitability matters?
12 DR. C3CHRAN: They were limited to LWA-1 13 matters.
() 14 JUDGE MILLER: LWA-1 is somewhat changed.
15 DR. COCHRAN They said they weren't relying 16 on these for either LWA-1 first bifurcated hearing or 17 LWA-1 second bifurcated hearing. Now they are asserting 18 that these are codes that they are relying upon.
19 JUDGE MILLER: All right. We will find out 20 what the significance, if any, is.
21 NR. EDGAR: First of all, tha t last statement 22 is not correct. There is no such statement in the 23 deposition. But let me try to put this into the right
() 24 focus. I have in front of me the staff's site 25 suitability report, which is NUREG-0786.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. O.C. 20024 (202) 554 2345 t
849
{} 1 JUDGE MILLER: What page?
2 MR. EDGAR: If you will turn to Pages II-18 3 and II-19, it is just discussion of a combination of O 4 core melt and disruptive accidents. The staff has 5 examined this more broadly. They have used different 6 codes. The same subject matter as contained here we 7 would propose to address using the codes that I have 8 listed.
9 JUDGE MILLER: The seven codes?
10 MR. EDGAP: That's right.
11 JUDGE MILLER: Let me inquire of the staff 12 now.
13 MR. EDGAR: That is why I think it is 14 important that we use the site suitability report as a 15 frame of reference.
16 JUDGE MILLER: Heaven knows we are trying to, 17 Mr. Edgar. All right, Staf f, now what about the site 18 suitability report and this question of the seven codes 19 plus the comments of the NRDC on that?
20 DR. COCHRAN: Maybe I can clarify.
21 JUDGE MILLER: You confused it. I am trying 22 to get clarification, because you threw in the fact that 23 you said th e y weren't, or all these codes you said were
() 24 not in the site suitability report, and Mr. Edgar has 25 read at least some of them, and now I am trying to find O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
850 1
out, since he then said the sta f f, which did prepare the
(]) 1 2 site suitability report, could give us some 3 information. So we are asking the staff.
4 MR. SWANSON: I wasn't aware that there was an 5 allegation we hadn't identified the codes. The staff 6 uses only the three codes I have mentioned. I gave the 7 spelling incorrectly on two of them.
8 JUDGE MILLER: All right, do you want to 9 correct the record?
10 MR. SWANSON: I have the correct spelling 11 now. It is TACT, T-A-C-T, not TRAC. CRAC I did spell 12 correctly. The HAARM code is H-A-A-R-M. They are all 13 capital letters. Those are the only three we have used.
14 JUDGE MILLER: Are other codes mentioned in 15 the site suitability report that Mr. Edgar just referred 16 us to? Your site suitability report?
17 MR. SWANSON: No.
18 JUDGE MILLER: What is the page?
19 MR. EDGAR: II-18 through II-19.
20 JUDGE MILLER: Look at that now and see if we 21 are in agreement on that.
22 (Pause.)
23 MR. SAWYER: There are no codes mentioned on
() 24 those pages. Maybe Mr. Edgar could clarify that.
25 MR. EDGAR: This subject matter, core melt, O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
851
() 1 and a combination of disruptive events is the subject 2 matter that.we addressed with the seven codes that I
{} 3 mentioned. When I say we, I mean the applicants. The 4 staf f has a dif feren t basis. To the extent the staff 5 has used codes, they are not the same.
6 JUDGE MILLER: All righ t, NRDC, what do you say 7 to that? And then after that, what I am trying to find 8 out now is, I as trying to get some agreement as to the 9 information you want insofar as it is going to help us 10 to get to this hearing. If it is within that ambit, 11 fine. If not, another day.
12 DR. CDCHRANs First of all, the site 13 suitability report, including that section, Page II-18 O 14 to II-19, was based entirely on engineering judgments 15 exclusive of reliance on these particular -- four of 18 these particular codes, SAS, VENUS, REXCOHEP, and 17 PLUTO. They do cite -- the staff in the site 18 suitability report does rely on the codes TRAC, CRAC, 19 and HAARM, however you pronounce it, and applicant has 20 comparable codes that are not quite different names, 21 different assumptions.
22 But applicants also stated to us in the 23 deposition at the LWA-1 hearing which includes this
() 24 aspect of the hearing they weren't relying on 25 calculations for those codes like SAS and VENUS and O
ALDERSoN REPORTING COMPANY,INC, 1
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345 l
852
() 1 REXCOHEP, and for this particular part of the analysis 2 on II-18 and II-19 --
3 JUDGE MILLER: In part, now, you are getting
(])
4 into a discovery matter tha t the Board has no knowledge 5 of. Whatever LWA-1 was at that time, thera has 6 obviously been some modification by the staff 7 supplemental. What we are trying to get now, so we will 8 all know and you won't be prejudiced by what is going to 9 be in the scope of the evidence and your right to cross 10 examination on that site suitability. Noi:, try once 11 more, Mr. Edgar.
12 MR. EDGARa I would like to have a cite to 13 that statement in the deposition. We have looked at the 14 deposition, and no such statement was made.
15 JUDGE MILLERS Do this privately, because if 16 it is a discovery ma tter you do not need the Board to 17 rule on it. I think the parties can get together on 18 that.
19 MR. EDGARs The point we are trying to make is 20 this. The analysis the staff relied on to reach the l 21 discussion in II-18 and II-19 is not the same 22 information that the applicants are going to rely on.
23 We intend to move forward and to present information l
l
() 24 which draws similar conclusions using the codes that I 25 listed. More than adequate discovery, a virtual l
l ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W. WASHINGTON, D.C. 20024 (202) 554 2345
853
() 1 mountain of discovery has been undertaken on that 2 subject, and we would like to have it out on that 3 subject.
4 JUDGE MILLER: We don't want to get into your 5 dis co ve ry problems now.
6 MR. EDGARs No, sir.
7 JUDGE MILLER: I do suggest that you and NRDC 8 experts and counsel should get together on this to be 9 sure that they have had f air information and it is 10 consistent with what you consider your required update.
11 MR. EDGAR Right. Now, I want to make it 12 plain, though, that we thin k it is time to get to the 13 merits of those issues.
O 14 JUDGE MILLER: We do, too.
15 MR. EDGAR 4 We are prepared to do it. NRDC 16 has to stand up now and tell us what is wrong. We are 17 through with discovery on this subject. We have had 18 extensive discovery, and we would like to go to 19 hearing.
20 JUDGE MILLER: Well, we are going to go to 21 hearing. It may just be the two of us. I hope that you 22 all come on the 23rd of August.
23 DR. COCHRAN Mr. Chairman, just one other
() 24 point. It was among these three there was some 25 misunderstanding about applicant's reliability program O
ALDERSoN REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W WASHINGTON, D.C. 20024 (202) 554 2345
854
() 1 was ruled beyond the scope of discovery for the LWA-1 2 proceeding. Am I to understand in preparing the 3 testimony f or cross that applicants will not rely or 4 cannot rely on any conclusions based on the application 5 of that reliability program? For example, whether CDA 6 initiators are within or withoutside the design basis?
7 JUDGE MILLERS Well, let's find out.
8 MR. EDGAR: We do not intend to rely upon the 9 reliability program which is described specifically in 10 Appendix C of the PSAR. That is a specific program and 11 tha t is the subject of Contention 1B. That has been 12 deferred, and we tre bound by the Board 's ruling on tha t 13 subject.
() 14 DR. COCHRAN Excuse me.
15 JUDGE MILLER: Let's see if we are seeing eye 16 to eye. Go ahead.
17 DR. CDCHRANs We are not seeing eye to eye.
18 That contention was written in 1975 or 6, and it was 19 based on the existing reliability program which has 20 changed over the years, and has been through presumably 21 several rewrites and decisions. There is A ppendix C of 22 the PSAR that is titled Reliability Program, but that is l
23 only the. current version of the applicant's reliability
( 24 program, and my contention went to the reliability 25 program they used from the becinning of this case when I CZ)
ALDERSoN REPORTING COMPANY,INC, 400 VIRGIN!A AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
855
() I wrote those contentions to today, and if they derived 2 their information on whether the CDA initiators are 3 within or outside of the design basis on the basis of 4 that reliability program, then I think it is beyond the 5 scope of the hearings, and that is what I want to 6 clarify.
7 MR. EDGARs Mr. Chairman, may I respond to 8 that?
9 JUDGE MILLERS You may.
10 MR. EDGAR 4 I am advised tha t the applicant's 11 reliability program has always been set forth in 12 Appendix C of the PSAR. Tha t reliability program that 13 may indeed be different from one Dr. Cochran saw or is O 14 thinking of in 1974, but we are relying for safety 15 purposes on the rallability program and the NRC staff 16 review. The program that we are relying on for that 17 purpose is in Appendix C. If there is some prior 18 program that was in Appendix C, then we are not rely t.n g 19 on that for any purpose.
20 Therefore, when I say we are n,ot going to rely 21 on Appendix C, I am speaking of applicant's reliability 22 program. There is only one. Anything else that may have 23 been previously in that program is not something the
() 24 applicants are using for any purpose.
25 JUDGE MILLER: That seems raasonably O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
856 straightforward, Dr. Cochran. Do you understand what he
(]) 1 2 is saying, whether you agree with it or not?
3 DR. COCHRAN No, Mr. Chairman. Applicant's 4 reliability progrsm has been used to form their 5 determination -- in my opinion, to form their 6 datermination of whether CD A initiators are within or 7 outside of the design basis. Now, there are lots and 8 lots of documents that ga well beyond Appendix C of the 9 PSAR that were developed as part of that reliability 10 program. Some of them are still current. Some of them 11 presumably have been supersedad. But the conclusions 12 with regard to whether CDA initiators are within or 13 outside of the design basis in my judgment was based on 14 knowledge gained through the use of their reliability 15 program as an integral part of that safety analysis, and 16 I am asking you whether, if I understand this new scope 17 of this bifurcated proceeding, whether those 18 conclusions, if they were based on the reliability 19 program, if we can make a showing that they were based 20 on the reliability program, are the conclusions in or l
21 outside of the scope.
i 22 JUDGE MILLER: Mr. Edgar?
23 MR. EDGARs I am at a loss to be any more
() 24 specific than we can. We are trying to be absolutely 25 precise in saying that we are not relying on Appendix
)
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W, WASHINGTON, D.C. 20024 (202) 554-2345
857 C. That is the applicant's reliability program. We
(]} 1 2 cannot be responsible nor can we know what Pr. Cochran's 3 thoughts are. He is givina his interpretation of what 4 we did. We know wha t we did, and we are not going to 5 rely on that program.
6 JUDGE MILLER: Well, we think that Mr. Edgar's 7 statement is clear and responsive. That is where we 8 vill leave that. All right. Now where are we? Yes?
9 MR. SWANSON: If we are done with those 10 points, I had two things I wanted to bring up. First of 11 all, I just wanted to make it very clear that we are 12 completing discovery on the staff's draft of the FES 13 supplement. I just want to get an indication to the 14 Board of what the date is. If it is the 6th, fine. If 15 it is a Monday, fine. I just want to get it 16 established. I don't want there to be any cloud over 17 tha t issue as to when that cutoff date is.
18 JUDGE MILLER: The cutof f da te for discovery 19 is and remains August 6th. -
20 MR. SWANSON: Fine. As the order said, on 21 both the staff milestone documents.
22 JUDGE MILLER: Yes.
23 MS. WEISS: I hope you don 't mean on both
() 24 Staff milestone documents since we haven't had an 25 opportunity to do discovery on the FES yet. I hope you O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINTA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
858 O a su== the ssa-2 MR. SWANSON: I meant both.
3 JUDGE MILLER: Yes. We have not projected a 4 discovery for the FES because there not anything other 5 than the original FES. If you want to discover that, 6 fine. If you want to talk about something that is 7 currently pending as a supplement to the FES, which is 8 being recirculated, there has been no discovery schedule 9 set.
10 MS. WEISS: That was my next question. Did we 11 vant to talk about the discovery schedule for the 12 supplement to the final environmental statement?
l 13 JUDGE MILLER: We are willing to as soon as we i
14 get the site suitability and prefiled testimony squared 15 away. If we have reached that point, fine.
- 16 MS. WEISS: I don 't think we have anything 17 further to say on what issues can be separated out for 18 this first phase. We would like to speak some to the 19 schedule of exactly what is required to be done for 20 now.
21 22 23 O 24 l
25 O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
I l
859 JUDGE MILLER: Let us get an order. We will
(]) 1 2 state it. We will follow up the order soon. But this 3 is what our decision is: That there will be an 4 evidentiary hearing as scheduled that will commence on 5 August 23, as scheduled, in Oak Ridge, Tennessee, in 6 accordance with the previously filed notice of 7 evidentiary hearing which has been duly published in the 8 Federal Regit;ter and so forth; that in view of the 9 current developments with reference to the recirculated 10 supplement to the FES, th a t the Board proposes to take 11 up evidence at that time concerning (1)(a), (2)(a),
12 (2)(b) as boy, (2)(c) as cat, (2)(d) as dog, (2)(e),
13 also (2)(f), (q), and (h), ins 6far as there are 14 limitations which have been described for the record, 15 (3)(b), (3)(c), which has a limita tion , a reference to 16 code, (3)($), and (5)(b).
17 Those are the ones which have been projected 18 and the ones which the Board feels are the ones to be 19 addressed in an evidentiary hearing.
20 Now, secondly, as far as discovery related to 21 the site suitability report and to those contentions 22 insofar as they concern the site suitability report is 23 to be concluded for all purposes unless somebody tells l
() 24 us something now in the way of exception, for all 25 purposes this coming Friday, August 6. Thereafter, the
()
ALDERSoN REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
860
() 1 prefiled written testimony, in accordance with the 2 present schedule, I believe is due to be filed on August 3 13. Is that correct?
O.
4 MR. EDGAR Yes.
5 MR. SWANSON: Yes.
6 JUDGE HILLER: August the 13th. I do not know 7 if there is anything else scheduled before we, 10 days 8 later on the 23rd, start the evidentiary hearing. If 9 there is now, before we get into other discovery on the 10 recirculated DES and so forth, let us stick first of all 11 to those things that are necessary to have clearly set 12 forth with regard to the evidentiary hearing.
13 Is there anything other than those that we O 14 have now told you about?
15 MS. WEISS: I do not think that it is humanly 16 possible for NRDC to have any substantial amount of 17 testimony filed a week after the discovery is in.. I 18 just do not think we can do it.
19 JUDGE MILLERS Well, this.has always been the 20 schedule, so I am sorry if you do not feel that you can 21 do it, but there has been no change. This has always 22 been the schedule.
23 MS. WEISS: Except that we have had, Mr.
() 24 Chairman, to take an enormous amount of time arguing 25 over these matters, arguing over exemption requests, and O
ALDERSoN REPORTING COMPANY,INC..
400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
s 861 I'\ 1 I do not think that --
O 2 JUDGE MILLEPs This is the first time you have ,
l 3 argued these matters with this Board. '
i !
(
4 MS. WEISS: We spent virtually the entire week '
5 last week writing these pleadings and consulting. All 6 of last week was taken up in writing the two pleadings 7 that you have before you and in arguing on the exemption 8 requests.
9 JUDGE MILLER: Look, do not assail this Board 10 with your exemption requests or anything else. We are i
11 just going to taka what is before us. Now these two 12 matters that you have filed --
13 MS. WEISS: I am just asking the Board to take
()
v 14 cognizance of the fact that we have been incredibly busy 15 through no fault of our own --
16 JUDGE MILLER: I do not know whose fault it 17 is. I do not want to get into it. It is an eitraneous 18 matter that has no relationship to this trial.' I am 19 looking at this trial.
~
20 MS. WEISS: We would ask you to give us at 21 least through the 16 th to file testimony. It would have 22 no impact whatsoever on the schedule.
23 JUDGE MILLER: Let me inquire. Would the
() 24 extension to the 16th of prefiled testimony for NRDC as 25 thus explained prejudice substantially either of the O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
952 l
other parties? Applicants?
(]) 1 2 MR. EDGAR: Is that --
3 MS. WEISS: That is the Monday --
4 JUDGE MILLER: It is projected and requested.
5 If it doesn't prejudice you, we would --
6 ,, MR. EDGAR: I am trying to answer. I just 7, want to be sure I understand.
\' 8 MR. SWANSON: That is a Monday.
9' 'MR . EDGAR: We have no objection.
s 10 JUDGE MILLER: Staff?
11 dR. SWANSON: We have no objection, provided
'12 thit we are still, continuing with simultaneous filings.
x 13 In othe'r'words, all parties would file on that date. I b'/ ,14 think the Staff would have a problem if we are going to
~ '
m' 15 be filing and their testimony would then frame a 16 response.
17 , JUDGE MILLER: Yes. Certainly, the deadlines 18 for prefiled written testimony have to be uniform in 19 applica tica . So wha t we are considering now is the 20 request of,NRDC, and the responses made by the other two
~
21 parties, to extend the date for the prefiled written 22 direct testimony.from August 13 to August 16. Is that 23 correct? Are the da tes accurate so far?
() 24 All right. There being no objections, the new 25 date, the amended'date therefore, will be August 16 for l 0 -
l \
ALDERSON REPORTING COMPANY,INC, 400 VIRGIN!A AVE., S.W., WASHINGTON, D C. 20024 (202) 554-2345
863 1
(} 1 prefiled written direct testimony by all pa rties.
2 Now, is there anything else before we go into i 3 the future?
O 4 MS. WEISS: I would just like the order to 5 reflect the Board's statements on the scope of the 6 evidence, neaning that parties should file evidence that 7 they under these contentions, to the extent that it is 8 within the scope of the SSR and we will not be penalized 9 if their direct testomony does not cover matters which 10 are covered by the FES.
11 JUDGE MILLER: Well, we cannot very well, nor 12 should we, tell the parties what to do or what to file.
13 You try your own cases. However, we can indicate that
(- 14 insof ar as there is any other evidence, testimonial or 15 otherwise, which the parties wish to proffer at the time 16 of the environmental hearings growing out of the 17 recirculated draft supplement to the FES, insof ar as j
18 they are relevant and admissible as to those matters, l
l 19 there will be no prohibition of putting forth the 20 testimony or the evidence on the grounds that it could 21 have been produced at this time.
22 Now, tis does not relieve you of the 23 requirement of showing reasonable relevance as defined l
() 24 by the Federal Rules of Evidence, which picks it up 25 without naning materiality.
O l
l ALDERSON REPORTING COMPANY. INC,
( 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
864
() 1 MS. WEISS: That is exactly the question that 2 I wanted --
3 JUDGE MILLER: As a subsidiary matter, there 4 may be testimony or documen ts which are id e ntical. We 5 would not expect any party to put in identical document 6 in that phase that would be forthcoming in the 7 evidentiary phase. That could be identified in the 8 record. That would simply be the normal rule of 9 avoiding re petitious testimony or evidence. It has 10 nothing to do with the scope of the hearing; it is 11 simply to reserve judicial time and your own time not to 12 have repetition. So all you have to do is identify it, 13 and you will have the benefit of it.
14 So that is a corollary which I trust we 15 understand, Ms. Weiss, and all the other parties.
16 MS. WEISS: Yes.
17 JUDGE MILLER: With that exception, it is as I 18 stated it then. Anything further?
19 MR. SWANSON: I just want to make sure of one 20 thing so that it does not come up later as an issue.
21 The Board mentioned there were certain limitations on 22 issues as defined by your order last April that certain t
23 issues had limitations. You mentioned some but not
() 24 all. Can we simply assume th a t your order of last fall 25 or last spring, your order of April 22, which defined l
l N
)
l ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
865
(} 1 certain limitations on issues, but those limitations do, 2 in fact, apply?
- 3 JUDGE MILLER: Yes. There has been no changes 4 on those issues. There has been no changes the Board is 5 aware of. Those are built in, and continue with ongoing 6 contentions.
7 MS. WEISS: At this point, Mr. Chairman, we 8 would ask you to certify the questions raised by our 9 motion to reschedule the hearing; that is, the question 10 of whether it is legally permissible to go ahead with 11 any of these hearings prior to the Final Environmental 12 Statement.
13 JUDGE MILLERS Well, the Board is familiar 14 with its own reasons for the actions it took. We do not 15 feel in any doubt. We do not feel that we have to go 16 certify something or have more proceedings pending. So 17 we will respectfully decline the request to certify.
18 MS. WEISS: Thank you, Mr. Chairman.
19 JUDGE MILLER: You are welcome.
20 Anything further?
21 MR. SWANSON: I-wonder if we could just 22 briefly postulate the amount of time that might be 23 necessary for these three issues. It might be helpful
() 24 in some preliminary planning anyway. We have 25 substantially limited the scope of this, Board issues, O
l ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
866 3, and 5. I wonder if, for planning
(]) 1 parts of 1, 2, 2 purposes, the parties could perhaps throw out some ideas.
3 T think for the fits.' f' 3 part we would not --
4 F. R . EDGAR I think the parties ought to 5 confer on that. I do not think we need to take the 8 Boa rd 's time. We still have, I think, another hour left 7 in the day.
8 JUDGE MILLER: Yes. We suggest the parties 9 all confer.
10 MR. EDGAR: If we are going to go, we ought to 11 talk about order and documents and all kinds of 12 details. But I think we should do that amongst counsel.
13 JUDGE MILLER 4 Let me make a suggestion to the 14 Staff. We sometimes have the question whether the 15 presentation of evidence and the order of 18 cross-examination of whether the Staff should be last or 17 not. Our belief is that it is more expeditious if we 18 get all of the evidence on one aspect, let us say, of 19 issues in, so that then there is only one set of 20 witnesses or evidence put on by those who o ppose. In 21 other words, those who have the affirmative, whatever 22 the issues are, they should get it in. To that end, we l
l 23 suggest the Staff should probably follow Applicants who l
() 24 have the burden of proof.
25 However, we have the caveat now that if there O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
867 l J
are any witnesses the Staff does not want to, I will not
(]) 1 2 say vouch for, but wishes to challenge the credibility 3 or otherwise, or testimonial or documentary evidence 4 that they wish to disassociate themselves from, then we 5 would reconsider as to those issues.
6 In other words, if there is a point where the 7 Staf f says, look, we do not agree with that, and we are 8 going to put on independent testimony which will have a 9 different aspect, then to that extent, we would want to 10 hea r the na ture of it. We would probably then permit
/
11 the Staff to follow.
12 Otherwise, we think it is easier because the 13 intervenors, one or more, have to put on witnesses or 14 testimony in opposition to the affirmative case. If we 15 do it piecemeal and we put it on the Applicants and we 16 put them on for the Staff, then we get to arguing who 17 did what a month ago.
18 So we find it more convenient. We would like 19 the Staff to take it into consideration because it is 20 not meant in any way as a derogation of the Staff's 21 public responsibility or anything. But we think that in 22 terms of handling evidence, it is more convenient.
I 23 We are indicating that that is what we have
() 24 done in other cases and we will probably do here unless 25 there are reasons where, you know, if you tell us that O
ALDERSON REPORTING COMPANY,INC, l 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554 2345 l _ __
l 868
() 1 there are good solid reasons why the Staff wants to 2 either disassociate itself from or have something 3 different from, then that is a different ballgame.
4 Do we understand each other? I will give you 5 a chance to be heard.
6 MR. SWANSON: Yes.
7 JUDGE MILLER: So that gives you something on 8 the order of proof, Ms. Weiss. We would like you to 9 have the intervenors ready to go as soon as the 10 affirmative case is put in on whatever issues that there 11 are. If you feel there are some tha t could be 12 separated, then we can take it up at the time, or if the
, 13 evidence will come on, all of the Applicants on all O 14 these issues, and the Staff's and yours, because it is 15 in opposition, we try to be reasonable on rebuttal to 16 all parties insofar as it is limited to matters 17 triggered by it.
18 MS. WEISS: The preference is to go issue by 19 issue, and the intervenors would be last unless on a 20 particular issue the Staff takes a position?
21 JUDGE MILLER: Generally, but I am not sure 22 issue by issue, because I do not know the nature of it.
23 You people will probably tell us, let us go on issue 1
() 24 and 3, for instance. I do not know if they are related 25 in some way. Whatever is convenient for all of you.
O ALDERSoN REPORTING COMPANY. INC.
400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554 2345 l
869
('T 1 You know, if you trap it up too much, then you are going V
2 back and forth. But then some of it makes sense. So we 3 will leave it at least initially for your mutual 4 recommendations on those. That order is what I was 5 trying to indicate your preference.
6 MS. WEISS. That would be my preference as 7 well.
8 MR. EDGAR: Judge Miller, I have a preliminary 9 related matter before we get in to FES discovery. It is 10 tied at least to thinking about the schedule now that we 11 are proceeding to hearing on site suitability. This 12 site suitability will involve, among other questions, 13 whether an HCDA should be a CDA and other major features 14 of the design will be discussed. The project has up at 15 Burns & Rowe a very detailed scale model of this reactor 16 which covers about a floor of a building. It is not 17 portable. It is huge. But we would be willing to 18 extend to the Board and all parties on a mutually 19 convenient date, if there is one between now and the 20 5 earings, the opportunity to visit Burns & Rowe and have 21 a view of the plant model and have any explanations 22 given of what the plant systems are. The offer is 23 available. We think that the model is a useful thing to
() 24 examine. Obviously, the Board is busy, but we wanted to 25 make the offer for what it was worth.
A U
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
870
() 1 JUDGE MILLER: Where is that loca ted ?
2 MR. EDGARs It is in Oradell, New Jersey, 3 which is approximately --
4 MR. GAESER: It is about an hour from the New 5 York airports.
8 MR. EDGAR: I advised that it is about an 7 hour8.101852e-5 days <br />0.00194 hours <br />1.157407e-5 weeks <br />2.6635e-6 months <br /> 's d rive f rom Newark Airport.
8 JUDGE MILLER: We appreciate your offer. We 9 suppose if any of the other parties want to make 10 arrangements, that they could make them with you, Mr.
11 Edgar. I would doubt the Board is going to have the 12 time as such between now and the 23rd. As we get 13 farther along, the Board might or might not. We O 14 appreciate the offer.
15 MR. EDGARs I would leave it open. My idea 18 would be the Board and parties would come up together so 17 that we do not have any concerns of that nature. And it 18 is there for information. You may want to postpone it, 19 but if you would like to do it, we will make the 20 arrangements.
21 (The Board conferred.)
22 JUDGE MILLER: I think we would defer 23 acceptance of your off er until af ter we have started
()
24 taking some evidence. We appreciate it, and we may well We do not see our way clear between now and I 25 wan t to.
)
1 ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
871 I
\
I the 23rd of August. This is not to say, I assume, that
(])
2 the offer even in the absence of the Board, would be 3 made available to the other parties, if they wished, 4 would it?
5 MR. EDGAR: That is right.
6 JUDGE HILLERS So that is up to them to get 7 with you on an agreed basis.
8 MS. WEISS: Is that a reactor of the general 9 size and type?
10 (Laughter.)
11 MR. COCHRAN: We have so much time we just 12 love to go up there and spend a few days.
13 JUDGE MILLER: Well, the offer is there. You 14 may do with it as you like.
15 Anything further?
16 (No response.)
17 JUDGE EILLER: The only remaining matter we 18 know of is the suggestion of Ms. Weiss tha t she would i
19 like to talk about future discovery and scheduling on 20 other matte. .. Is that what you suggested?
21 MS. WEISS: Well, yes. If we are not 22 contemplating starting discovery until the supplement is 23 a final supplement, which I think makes a great deal of
() 24 sense given that we are all goine to be --
25 JUDGE MILLERS You are going to be busy.
1 l
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE , S.W., WASHINGTON, D.C. 20024 (202) 554 2345
872 MS. WEISS: -- putting aside the question of
(]) 1 2 the status, we are going to be pretty darned busy on 3 other things.
4 JUDGE MILLER: That would make sense.
5 MS. WEISS: If that is the case, then it is 6 not necessary to set a schedule today.
7 JUDGE MILLER: It would be subsequent to the 8 hearing date, I would presume.
9 MS. WEISS: I assume so.
10 JUDGE MILLER You will be busy enough, and so 11 will we, and then we will be in the midst of a trial.
12 But the list day of the trial, now, if you wanted to 13 raise it, because yes we do have to look onward. We 14 will have more information f rom the Staff, for one 15 thing, as to the timing.
16 MS. WEISS: The Staff made the representation 17 last week that they expected this process of receiving 18 the commen t and digesting it to result in them having 19 the final document ready by November 1.
20 If that is the case, I assume we will be done 21 with the hea rings at that point and we can start upon 22 discovery.
23 JUDGE MILLER: I would hopo so, yes.
() 24 MS. WEISSs I think the only issue we need to 25 resolve toisy is whether we are going to wait for O
i ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 l --. _ _ _ . _ _ _. ._. _ _ _ _ _ _ _ , . . . _ _ . . _ __
873
(} 1 discovery until that is a final document.
2 JUDGE MILLER: I would think so because I 3 would think the procedure that is set up generally for 4 the handling of NEPA and other matters is here is the 5 desft, it could be a DES, it could be a proposed 6 supplement or nodification, whatever it may be, to an 7 existing FES, and circulated. At any rate, you have to 8 circulate a document. At that point, everybody can 9 comment, including the parties, nonparties, and the 10 public. So it would seem to be superstogation at that 11 point to get into discovery which you do not have to 12 repeat when you knew what the final product was with or 13 without the discussion anybody made when the Staff 14 adopted it and set up the FES.
15 MR. EDGAR: Mr. Chairman.
16 JUDGE MILLER: Yes.
17 MR. EDGARs As Judge Linenberger points out, 18 informal discovery could commence at any time and to be 19 fruitfully followed at any time. We do commend it, 20 because we know the parties have engaged in a good deal 21 of such informal discovery. It is helpful to everyone.
22 Anything further?
23 MB. EDGAR: I would itke to make a suggestion
() 24 in that vein. I think we can discuss it down at Oak 25 Ridge in more detsil. But it seems to me we will have O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
874
() 1 some date when the Final Environmental Statement will be 2 -- or final supplement af ter circula tion -- will be 3 available. And I see no reason why, by analogy, the 4 Board could not apply thic. the same principles in the 5 same schedule to that it applied in its February 1982 6 order.
7 JUDGE MILLER: Well, we well migh t. We will 8 ask for recommendations by the parties, discussing it 9 precedently among themselves, and maybe we will get more 10 or less reasonabe scheduling of dates.
11 MR. EDGAR: But I would like to see if we 12 could arrive at something certain. We will lose time 13 after we adjourn the hearings if we do not.
14 JUDGE MILLER: All right. Let's see if the 15 parties can confer in advance of the conclusion at least 16 of the evidentiary hearings on the site suitability and 17 make recommendations, mutually supported and agreed, or 18 you can make suggestions where you cannot, and the Board 19 will entertain them.
20 Is there anything further?
21 NR. SWANSON: As I understand it then, the 22 parties are under no obligation to respond to discovery 23 at this time?
() 24 JUDGE MILLER: Correct.
25 MR. SWANSON: Thank you.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 i
_ . _ . . _ _ _ _ . - _ _ _ _ _ _ _ _ _ _ _ _ _ _ . . _ _ _ _J
i
- 1 l
875 1 I
)
! O avoct :$1ttra, raenx von veer uca- we 111 i
2 see you the 23rd, if not sooner.
3 (Whereupon, at 4: 05 p.m., the conference was 4 adjourned.)
5 l 6 I
i 7 i
. 8 9
r i 10 i 11
! 12 1
l 13 i
O ,,
15 16 i
- 17 18 19 2 -
i l
21 t
l l 23 lO 2.
j 25
,O l
l
! ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
s UUC2AR REGULATORY COW.ISSICN This is to certify that the attached preceedings bef re the g ATOMIC SAFETY AND LICENSING BOARD
- i (Clinch River Breeder Reactor Plant) in the satter Of: United States Department of Energy Project Management Corporation Tennessee Valley Authority Date of Proceeding: Anouse 2, 1982 Docket tiumber: 50-537 Place of Proceeding: Bethesda, Maryland were held as herein appears, and that this is the original transcrip thereof for the file of the Commission.
Jane W. Beach Official Reporter (Typed) t ,
L w
0 icial Reporter (Signature) l l
I -
s.
i I
e oe 9