ML20125D573
| ML20125D573 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 12/10/1992 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#492-13496 92-669-03-OLA-2, 92-669-3-OLA-2, ASLBP, OLA, OLA-2, NUDOCS 9212150306 | |
| Download: ML20125D573 (220) | |
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Agerig: v.s. nuclear negulatory Commission Atomic Safety and Licensing Ibard i
pgtjg.* Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2) l (Construction Period Facility Operating Licenses Recapture No. DPR-80 and DPR-82)
Docket No. 50-2 73-ou-2 50-323-OLA-2 ASLBP No. 92-669-03-OLA-2 IOCATlON: San Luis Obispo, Cafifornia dam Thursday, December 10, 1992 PAGES: 1 - 21,7 l
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1 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3 ATOMIC SAFETY AND LICENSING BOARD 4 - - - - - - - - - - - - - - - - -X 5 In the Matter of: :
6 PACIFIC GAS AND ELECTRIC : Docket Hos. 50-275-OLA-2 7 COMPANY : 50-232-OLA-2 8 (Diablo Canyon Nuclear :
9 Power Plant, Units 1 and 2) : ASLDP No. 92-669-03-OLA-2 10 (Construction Period Facility :
11 Operating Licensos Recapture) :
13 - - - - - - - - - - - - - - - - -X 14 San Luis Obispo City IIall 15 990 Palm Street 16 San Luis Obispo, California 17 Thursday, December 10, 1992 18 The above-entitled matter came on for pre-hearing 19 conference, pursuant to notice, at 9:36 o' clock a.m.
20 BEFORE: Ti!E IlONORABLE CHARLES BECilllOEFER, CilAIRMAN 21 THE I!ONORABLE DR. JERRY KLINE, MEMBER 22 THE IlONORABLE FREDERICK J. SHON, MEMBER 23 Atomic Safety and Licensing Board 24 U.S. Nuclear Regulatory Commission 25 Washington, D.C. 20555 .
O ANN RILEY & ASSOCIATES, Ltd.
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2 g 1 APPEARANCES:
2 3 ON DEllALF OF PACIFIC GAS AND ELECTRIC:
4 DAVID A. REPKA, ESQUIRE 5 WINSTON & STRAWN 6 1400 L Strcot, N.W.
7 Washington, D.C. 20005-3502 8 -and-9 RICilARD F. LOCKE, llOUSE COUNSEL '
10 PACIFIC GAS AND ELECTRIC 11 77 Beale Street 12 San Francisco, California 94106 13 14 ON DEllALF OF Tile NRC STAFF:
15 ANN P. IIODGDON , STAFF COUNSEL 16 ARLENE A. JORGENSEN, STAFF COUNSEL 17 U.S. Nuclear Regulatory Commission 18 Office of General Counsel 19 Washington, D.C. 20555 20 21 22 23 24 25 O ^"" ai'ev a Associates. 'id-Court Reporters 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
3 -
1 ON BEllALF OF Tile SAN LUIS OBISPO MOTHERS FOR 2 PEACE:
3 JILL ZAMEK 4 JUNE VON RUDEN 5 ROCliELLE BECKER 6 NANCY CULVER 7 SANDY SILVER 8 P.O. Box 164 9 Pismo Beach, California 93448 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I
O ^"" ai'av & ^ssoc'ATes. 'id-Coud Reponers 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006
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4 1 PROCEEDINGS O 2 (9:36 a.m.]
3 JUDGE BECilllOEFER: Good morning, ladies and 4 gentlemen. This is a pre-hearing conference, the first 5 pre-hearing conference in the proceeding involving the 6 application by Pacific Gas and Electric Company to 1*ecapture 7 or recover a certain period of time in their operatis'g 8 license, the effect of which would be to extend the period 9 of operation of the Diablo Canyon Nuclear Power Plant'a 10 Units 1 and 2.
11 The Atomic Safety and Licensing Board will hear 12 this proceeding. I will introduce the members. On my left 13 is Fred Shon, Frederick Shon, who's a nuclear engineer and 14 physicist. On my right is Dr. Jerry Kline, an environmental 15 scientist. My name is Charles Dochhoefer. I'm the chairman 16 of the Board and I'm an attorney.
17 Participating today are, one, petitioner for an 18 Antervention in this proceeding, the Mothers for Peace, and 19 two other parties, the Pacific Gas and Electric Company, who 20 is the applicant or the licensee as-the--case may be and the 21 NRC Staff. I would like the representatives of the parties 22 to introduce themselves. I guess I'll start on my left with 23 the staff, Miss Hodgdon.
24 MS. IlODGDON : I'm Ann P. Hodgdon, representing the 25 NRC Staff, and with me today is Arlene Jorgensen, who also Q ANN RlLEY & ASSOCIATES, Ltd.
Court Reporters 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
5 1 represents the staff. And I have two technical staff
- y. 2 members with me, Sherri Peterson, who's over here, who's the 3 project manager for this project, and Meena Khanna, who is 4 an intarn who'n with us from headquarters at Fejion 3.
5 MS. ZAMEK This is working?
6 JUDGE BECHHOEFER: Care to introduce yourselves?
7 It's supposed to be working.
8 MS. ZAMEK: I'm Jill Zamek with the Mothers for 9 Peace, and we are representing ourselves today.
10 MS, VAN RUDEN: I'm Juac van Ruden, a member of 11 Mothers for Peace.
12 MS. CULVER: Nancy Culver, Mothers for Peace.
13 MS, BECKER: Rochelle Becker, Mothers for Peace.
14 MR. REPKA:
(} I am David Ropka, Counsel for Pacific 15 Gas and Electric Company. And on my left is Richard Locke, 16 also counsel for the company. For the Board's information, 17 I'd like to introduce or recognize that with me today, among 18 others, are Greg Rueger, who's the company senior 19 vice-president and general manager for nuclear power 20 generation, and Warren Fujimoto, who's vice-president for 21 Nuclear Technical Services.
22 JUDGE BECHHOEFER: Well, the purpose of this 23 conference today is for us to entertain arguments on whether 24 the Mothers for Peace may become a party to this proceeding.
25 This proceeding is a little different from most traditional O ^"" ai'ev a Associates' 'id-Coud Repoders 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202)' 293 3950 v
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6 i 1 type of NRC proceedings. The company is seeking to 2 recapturo certain periods of timo which were occupied by 3 construction.
4 Initially -- at the timo pG&E received its 5 operating licenso -- or applied for its operating licenses, 6 the Commission was -- the Commission is -- which is limited 7 to 40 -- to granting licensos for a period of 40 years, was 8 granting those licensos from the period of the construction, 9 and the period of actual construction was included in that 10 porlod of time, so that the 40 years did not includo 40 11 years of actual operation.
12 Starting about in the narly '80s, 1981 or '2, I 13 guess, the Commission changed its policy and began granting
() 14 15 operating licensos for the full 40 years from the time of initial operating authority. Pacific Gas and Electric 16 Company is socking to recapture that period of timo. The 17 proceeding must be differentiated betwoon -- or from 18 renewal-typo proceedings where if thoro is a 40-year 19 license, it may be renewed for another period of time, an 20 additional period of time, and different procedures govern 21 that type of proccoding.
22 But I might also add there's very little procedent 23 on what standards govern a proceeding of this typo. Staff 24 has granted many of these applications from other reactors.
25 Insofar as I'm aware, in only one case was there a challengo O ^"" ai'ev & Assoc'ATes' 'id-Coud Repoders 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
7 1 from a petitioner or intervonor. The other cases the staff O 2 granted. But one cannot say that that should have any 3 precedent because the very fact that no one sought to 4 intervene in those cases, so that it's a little bit 5 different when someone has a right to a hearing or a right 6 to an opportunity for a hearing as is the case here. This 7 is published in the Federal Register.
8 There was a notice of opportunity for hearing.
9 That's the notice which the Mothers for Peace responded to.
10 When that happens, the fact that the staff has granted many 11 other similar applientions is not particularly relevant, 12 because they were unopposed in effect. The one case where 13 there was an opposition, a hearing was held, but it was 14 eventually settled. The parties agreed to certain terms and
/)
15 the proceeding was dismissed on that basis.
16 I mignt say the Board certainly has nothing 17 against parties trying to settle their differences and work 18 out an arrangement such as happened in the othe-c case which 19 was from Vermont Yankee, but that being aside, if the 20 parties decide they can settle any of the issues through 21 some means or other, we'd certainly welcome any such 22 arrangement and would certainly consider that.
23 But in the interim, we have a request for a 24 hearing petition to intervene, and we must decide which --
25 at least -- there has to be at least one contention which is i
l C ANN RlLEY & ASSOCIATES, Ltd.
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8 1 admissible, and the Mothers for Poaco have filed 11 2 different contentions, many with multiple subparts, and wo 3 plan to discuss all of thoso.
4 In addition, a petitioner must establish that it 5 has standing to participato. The Mothers for Peaco has 6 submitted the namos of five individuals who live within 50 7 miles of the plant. Many of them live ao closo as flvo.
8 Some of them live as close as five miles, I believo, from 9 the plant. In terms of standing, if it were a routino 10 operating licenso or construction permit proconding, anyono 11 living within 50 miles and who assorts they may be affected 12 by the operation of the plant, construction or operation of 13 the plant, would have standing to participato, the 14 commission has cut that down a little bit on operating 15 license proceedings and has said that those standards apply 16 only for significant amendments. And, of courso, there's 17 the question, then, about what is significant.
18 We bellevo, by the way, that wo should -- the 19 first thing we should consider is standing, and I know that 20 the Mothers for Peaco in their proposed agenda did not 21 mention standing at all. The applicants thought wo should 22 consider the contentions first, and then if any of the 23 contentions were good, only then should wo got into 24 standing. We don't plan to rule on the majority of the 25 contentions here at the conference. Thora may be some time O ^"" ai'ev ^ ^ssoc'^Tes. 'id-Court Reporters 1612 K. . Street, - N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
9 1 -- several of them are fairly complicated, and I doubt that 2 we'll have a final answer on those, so I think we would like 3 to start out with the standing question. And the Mothers 4 for Peace has set forth their case, and the NRC Staff is not 5 opposed to that. They didn't say they supported it, but 6 they didn't oppose it, either. I think we should hear both 7 from Mothers fnr Peace and from the applicant. The 8 applicants do oppose the basis set forth for standing, and I 9 think we should cover that first, because if there's no 10 substantial standing, there won't be any proceeding at all, 11 and that one we might be abic to rule on while we're here.
12 But I don't think we could rule on all the contentions.
13 Some of them we may be abic to rule on, but all of them I
() 14 15 don't think wn will.
I might -- before we actually get into standing, 16 both parties who have filed proposed agenda have asked for 17 the opportunity to make opening statements, and I think that 18 is appropriate for, well, all three, if the staff desires to 19 make one as well. I think a fairly brief opening statement 20 . will be appropriate. And why don't we lead off with the 21 Mothers. You choose your representative.
22 MS. CULVER: Do you want to lead off with them?
23 JUDGE BECHHOEFER: Whichever. It doesn't matter.
24 MR. REPKA: Mr. Bechhoefer, it's our contention at 25 this point in the proceeding the petitioner has the burden O ^"" ai'ev a Associ^Tes' 'ta-Coud Repoders 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
10 1 and we would defur to them at this point, 2 JUDGE BECHIIOEFER: I think you probably should 3 lead off.
4 MS. CULVER: The history of Diablo Canyon forms 5 a pattern of responding to problems with denial, 6 rationalization, and cover-up. PG&E can't respond to 7 problems with solutions because in so many casos there are 8 no solutions except to close the plant down. It is for this 9 reason that wo should all be in this room today discussing 10 decommissioning Diablo Canyon rather than extending its 11 license for up to 15 mors years.
12 To you this caso is business as usual. Whether wo 13 have a hearing or not, and whether it includes such issues 14 as carthquake safety, plant aging, and nuclear waste storago 15 is only a matter of abstract law and regulations. To us 16 those decisions, and the whole sorry history of Diablo 17 Canyon, is very concrete and personal. When most of you 18 return to your homes many miles from here, we will be left 19 to live with the reality of Diablo Canyon.
20 The reality is that Diablo Canyon was mistakenly 21 sited next to a major activo earthquake fault. The plant 22 was designed and largely built on completely outdated 23 soismic data, and those data become more obsolete each day )
24 since solumology is a rapidly growing science that is 25 providing new insights almost on a daily basis. PG&E first l I
'O ^"" ai'ev a ^Ssoci^Tes. 'ta-Court Reporters 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950 l
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11 1 tried to rationalize away the discovery of an active fault, 0 2 and then when it belatedly tried to upgrade the plant, it 3 did such a bad job of it that it became the only nuclear 4 plant in America to receive and then lose its operating 5 license all within a month.
6 The reality is there is no place and no safe 7 method for storing high-level radioactive wastes for the 8 tens of thousands of years it will remain deadly. That 9 means that Diablo Canyon for all practical purposes has 10 already become a permanent, high-level radioactive waste 3
11 dump. Now PG&E wants to produce an additional 15 years of 12 nuclear waston for which there is absolutely no storage 13 plans. Will PG&E next ank to be allowed to place monitored 14 retrievable storage casks, another temporary waste storage 15 solution that is becoming permanent, at this dangerous site?
16 The reality is that Diablo Canyon is already an 17 old plant. Many similar nuclear plants are wearing out 18 after 20 to 25 years. Diablo Canyon was designed in the 19 1960's and many of its components and materials have been 20 on-site since the late 1960's, exposed to the corrosion of 21 air and seawater for many years before the plant operated.
22 By the time this proposed extension ends, many of these 23 components and materials will be close to 60 years old.
24 The reality is that their exists at Diablo Canyon 25 a persistent pattern of personnel errors and mechanical O ^"" ni'ev
- Associ^Tes. 'id-Court Reporters 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293 3950
12 1 failures. We cito many of those problems in our O 2 contentions, but PG&E complains that we only montion recent 3 problems. That was partly a factor of time. So lot no 4 remind vou of a less recent accident at the plant. During a 5 rofuoling of Unit 2 in April 1987, the residual heat removal 6 system in the containment was lost for one and a half hours. I 7 The top of the reactor vossol was off for maintenance work, 8 leaving it open to the air, and the water level was about 9 one half. The water boiled and a serios of operator errors 10 combined to creato near-disaster conditions. Among the 11 errors was that plant operators had no way of knowing the 12 temperature insido the containment because maintenance was 13 going on and equipment had boon disconnected. To compound 14 the danger, an engineer drained much-needed cooling water 15 without telling the control room operators. This was an 16 immediate throat to the lives of overyone who lives in this 17 area, and yet no emergency evacuation was put into offect 18 and the full extent of that day's problems was only 19 disclosed soveral months lator by a newspaper that's out of 20 our county.
21 This license axtension request may be a simplo 22 administrative matter to you and to PG&E, but to us it's a 23 matter of the personal safety of our famillos, our friends, 24 our nolghbors.
25 The pattern continues. Once again PG&E is asking rO l
^"" aev a ^Ssoci^Tes' 'id-Court Reporters 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
13 1 you to go along with its denials, rationalizations and O 2 cover-ups. PG&E seeks to deny any discussion of earthquake 3 safety, saying, "We already dealt with that issue for the 4 original licensing hearing." Doesn't it matter that new 5 evidence strongly suggests that PG&E is wrongly assuming 6 that the Hosgri fault will produce almost exclusively 7 horizontal movement? It is in fact likely to produce much 8 thrusting of plates, creating far more violent ground motion 9 than the plant was designed to withstand. How can it be too 10 late to raise this issue?
11 PG&E denies that there is any problem in storing 12 radioactive wastes when it knows full well that there will 13 not be a permanent vaste dump in the foreseeable future.
14 Its spent fuel pools, designed for short-term waste storage, 15 will be full -- reracked and full before this license 16 extension could take effect. What then?
17 PG&E wants to avoid dealing with the problems of .
18 aging structures, systems, and components by getting a 19 license extension now, 16 years before it's needed, and 20 before the most serious of these problems becomes obvious.
21 They say we're raising the issue too soon, that it can only 22 be raised when PG&E applies for a license renewal. However, i 23 PG&E is asking for an extension that is three quarters as 24 long as the projected 20-year renewal, but which will allow 25 it to avoid complying with the far more rigorous standards Q ANN RlLEY & ASSOCIATES, Ltd.
Court Reporters 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
l 14 l
1 required for renewal. No other utility has requested such a O 2 long recapture extension. Further, when the inevitable 1
3 problems of aging do becomo obvious, PG&E will say they 4 already have their license extension in hand and we raised 5 the issue too late.
6 We're asking you to not reward PG&E for its 15 7 years of mistakes, to not compound the problem of the 8 plant's dangerous site by extending its life, and to accept 9 your responsibility as the guardian of public safety, not of 10 PG&E's corporate profit.
11 Thank you.
12 MR. REPKA Thank you, Judge Bechhoofer.
13 When Diablo Canyon was first licensed by the NRC,
( 14 the petitioners were here. The petitioners raised many
)
15 safety concerns, many of the same contentions that they're 16 raising here today, many of the same contentions that 17 they've raised in their papers in this proceeding. At the la time the NRC, PG&E, the advisory committee on reactor 19 safety, and many of them looked very at the designs of this 20 plant and concluded that it was an adequately designed plant 21 and a safe plant. Now that it has been operating for a 22 number of years, Diablo Canyon has proven to be a very well-run plant, a very reliable plant, a safe plant.
24- We're here today and in this proceeding to discuss 25 one license amendment; not to relitigate and address old C ANN RlLEY & ASSOCIATES, Ltd.
Coud Reponers 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293 3950
l 15 1 issues, issues long ago put to rest. The one amendment 2 before us is truly an administrative change to the license. ,
3 It's a change that simply conforms the license to the 4 original intent of the designers and the NRC in issuing 5 licenses. The fact is a 40-year operating period was what 6 was presumed at that time.
7 We're also here to talk about 11 proposed 8 contentions. Not new issues that are raised today. Not the 9 old issues from yesteryear.
10 In those 11 issues, the petitioners paint a ,
11 picture completely at odds with the verifiable public 12 records, at odds with the record that has been compiled at 13 this plant in the last several years. The petitioners paint 14
(} a picture of shoddy and insufficient maintenance. There is 15 no support for these contentions. The petitioners simply 16 offer a few isolated, out-of-context findings, selectively 17 clipped observations from NRC inspection reports, things 18 that simply do not add up to programmatic problems that 19 might be admissible in an NRC proceeding.
20 In fact, Diablo Canyon has been recognized by the 21 NRC to be one of the truly best-operated and best-operating 22 plants in the country.
23 The petitioners also paint a picture in their 24 papers of an unmotivated and unskilled work force at Diablo 25 Canyon, but quite simply an unmotivated and unskilled work O ^"" ai'ev a Associates. 'ta.
Coud Repoders 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293 3950
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16 1 force could not have run a plant as well as this plant has t 2 been run. The objective performance indicators which I'll 3 discuss a little bit later this morning clearly support that 4 this plant has '- con well run and that the people who run it 5 are dedicated, talented professionals, deeply committed to 6 their jobs, to ensuring safety, and to ensuring the 7 reliability of this plant.
8 The petitioners also raised numerous other safety 9 issues such as waste, an issue that's clearly outside the 10 scope of this proceeding based on the NRC's own regulations.
11 They raise issues such as thermal lag, which are not safety 12 significant for Diablo Canyon, which have no basis in fact, 13 and which clearly have no nexus to the amendment at issue,
(} 14 15 such as seismic issues which were long ago resolved.
the Commission recently revised its admissibility 16 thresholds for contentions in its proceedings. Those 17 thresholds require a greater evidentiary basis than the 18 Commission previously required for the admission of 19 contentions, a showing that there is a genuine issue, a new 20 safety concern, a concern that has not been previously 21 litigated, one that could entitle the petitioner to relief.
22 If those new evidentiary standards, thnse new threshold 23 standards are to have any meaning at all, none.of the 24 contentions in this proceeding can possibly be found to be 25 admissible.
O ^"" ai'ev a ^ssoc'^Tes. 'id-Coud Repoders 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
17 1 Given the picture of neglect and cynicism painted 2 by the petitioners regarding Diablo Canyon, let me provide i 3 some context as opposed to the isolated, out-of-context 4 inspection findings that they offered. Let's look at some 5 of the big picture indicators for Diablo Canyon.
6 In 1992 alone, nrc senior management has commended 7 Diablo Canyon as one of a handful of truly outstanding 8 performers in the United States. The NRC does not put 9 plants on its good performers list lightly. This is an 10 achievement we are very proud of. It is in fact a testament 11 to the people who run this plant and how well it's been run.
12 The NRC also has a program called the Systematic 13 Assessment of Licensee Performance Program. This program 14 focuses on not minor, little safety insignificant details,
[}
15 but the big picture: How this is plant operated? How is 16 management doing? How are the people doing? In the last 17 two assessment periods covering a period of three years, 18 Diablo Canyon has been given a Category 1 rating in plant 19 operations. A Category 1 rating denotes excellence. It +
20 denotes achievement far beyond mere compliance with NRC 21 regulations.
22 As a third indicator, Diablo Canyon has achieved 23 an excellent record of performance and reliability evidenced 24 by its high capacity factor. It's well recognized by the 25 industry and by the NRC that a well-run plant is a safe Q ANN RILEY & ASSOCIATES, Ltd.
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17 1 plant. A plant that achieves a high capacity factor is a 2 plant that is avoiding unnecessary risks.
3 Under the unique Diablo Canyon rate structure, 4 financial health of this company is tied directly to the 5 performance, the safety, and the reliability of this plant.
6 The incentives are for Diablo Canyon to operate safely and 7 officiently.
8 Fourth, Diablo Canyon training programs have been 9 recognized as a model both nationally and internationally by 10 the Institute of Nuclear Power Operations. This again shows 11 our commitment to training and again is completely at odds 12 with the picture painted by the petitioners. Another 13 indicator, operators at Diablo Canyon have achieved a nearly
(} 14 15 100 percent requalification rate in their requalification testing. This is a percentage and an achievement that far 16 exceeds the industry norm.
17 The plant also has an extensive capital budget and 18 improvement program. It's safe to say that we are 19 constantly reviewing this plant and improving the plant and 20 having a deep commitment and a deep responsibility to do 21 so. Another indication is the parts warehouse at 22 Diablo Canyon. This is one of the largest inventories of 23 replacement parts in the industry. It allows quick, 24 efficient replacements, a testament to our commitment to 25 maintenance. This is not a case, as the petitioners might Q ANN RILEY & ASSOCIATES, Ltd.
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I 19 1 suggest, of maintenance deferred and avoided. In total, O 2 Diablo Canyon is in the elite of nuclear plants of this 3 country, and this is a stark contrast to what the 4 petitioners offer.
5 Quito frankly, we don't take lightly chargos of 6 shoddy maintenance or personnel that are unreliable and 7 unmotivated. These allegations and contentions are simply 8 not true. They reflect a longstanding bias, a longstanding 9 opposition to the plant. And a good example of the 10 credibility of the claims that the petitioners bring in the 11 alleged NIRS report on thermal lag which was allegod in the 12 papers to show that thormal lag and earthquakos presented 13 some unique now risk that had not boon studied before. Wo 14 learned through the NRC Staff that in fact no such study 15 oven exists. We ask that this licensing Board take a 16 critical look at these proposed contentions and to realize 17 that there is no genuine issue in disputo. Even taken 18 together, all the facts offered would not entitle 19 petitioners to relief in this proceeding.
20 And again another paramount consideration here is 21 the nature of the amendment at stako. As I said before, 22 this is an administrative change. It's a change identical 23 to those granted to over 50 other nuclear units in the 24 country. It provides no new authorizations. PC&E would be 25 entitled to do nothing it's not already entitled to do in Q ANN RILEY & ASSOCIATES, Ltd.
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20 1 the opolation of the plant. It does not exempt PG&E from 2 any applicable requirements. It does not eliminate NRC 3 overviev, the inspection and enforcement process. It merely 4 conforms the license to the original design basis of the 5 plant. This is not license renewal which relates to 6 operation beyond the statutory 40-year term. It's not an 7 initial license, either, It's not an opportunity to reraise 8 the old issues. This morning the petitioners again talked 9 about new seismic data. In fact, in their written 10 contentions, seismic appears in only two very limited 11 contexts. Thermal lag and the design of the spent fuel 12 pool. Both concerns are totally baseless, but beyond that, 13 the seicmic design of Diablo Canyon has been scrutinized 14 more closely than that for any plant in the country.
15 The 11RC, PG&E recently completed the long-term 16 seismic program for Diablo Canyon. All of the new 17 information that tne petitioners allege has not been taken 18 into account has in fact been taken into account, including 19 the Loma Prieta earthquake of 1989. The seismic design for 20 Diablo Canyon assures safety now and will do so for the full 21 license term. This is not the occasion to replow old fields 22 and relitigate issues long ago put to rest.
23 In conclusion, the Commission's hearing procedures 24 has recently revised or intended to reserve formal hearings ;
25 for those cases where truly new safety concerns, truly new l Q ANN RILEY & ASSOCIATES, Ltd.
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21 1 issues are at stake. That's simply not the case here. We-2 ask that this Board dismiss the proceeding.
3 Thank you.
4 JUDGE BECHHOEFER: Miss Hodgdon?
5 MS. HODGDON: The staff does not wisn ;o make 6 an opening statemen'. c 7 JUDGE BECHHOEFER: I guess we'll get into 8 standing, and if there's any further comments -- we've read 9 the briefs on -- well, on everything, but standing in ,
10 particular.
11 Do the Mothers for Peace wish to make any further 12 points on standing, Miss Culver or whoever is going to 13 address that?
14 MS. ZAMEK: I would cay besides what we've 15 already said in our original contention in standing, when ha 16 mentioned that about significant -- when there's a-17 significant action, and I would say that 15 years would be 18 signi"icant since the normal recapture time is 50, somebody 19 mentioned so nr so plants have already received this 20 recapture, F>, . doubt that it-was for 15 years. This is 21 really a unique caso.
22 JUDGE BECHHOEFER: Well, do you perceive 23 additional risk, for instance? The applicant claims they're L 24 not making any changes at all.
25 MS. TAMEK: Yes. Absolutely, I perceive. We're t-l O
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_ . . . - _ _ - . _ - - . _ _ - _ _ _ _ _ . - - - . - - _ ~ . . ._ . _
22 1 talking a lot of years into the i~uture. We're talking to 2 the year _2025. And for them to claim that there's not' going 3 to be any environmental impact for that many years, we're 4 talking 16 years before the license -- their current license 5 expires and then they want another 15 on top of that, and it 6 seems to me that's a little premature.
7 We don't -- they've only been operating, I think, 8 eight years, and there's already some signs of aging, and 9 they've already experienced some problems, and they've 10 already reracked their waste and they don't know what to do 11 with the waste and they haven't said what they're going to 12 do with the waste. I think there's sone significant hazards 13 involved here and that's a lot of time in the future here;
() - 2,025.
MS. BECKER: In addii. ion, Your Honor, the issues tha; they say have already been litigated, on the seismic issue, when they talk about seismic problems at Diablo 18 Canyon in the past, they did talk about current information 19 in the long-term seismic program. However, no one has ever 20 discussed or litigated or made a ruling on the effects of 21 seismicity earthquakes on an aging nuclear power plant.
21 This is a nuclear power plant that was built, designed in 23 the late '60s and early '70s, and to give them 15 extra 24 years with aging parts, perhaps a problem with fraudulent 25 parts, perhaps a problem with thermal lag, all those in an C ANN RILEY & ASSOCIATES, Ltd.
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23 fg 1 area of high seismicity, when daily there has been new U 2 information on earthquakes in California since'the 3 conclusion of the long-term seismic program, and for anyone 4 to put their head in the sand and say this is an issue 5 that's already been litigated is absolutely untrue. No one 6 talked about the effects of an earthquake on an aging 7 nuclear power plant, a nuclear power plant built and 8 designed in the '60s, largely built and designed in_the 9 '60s, redesigned, rebuilt in the '70s and '80s. We need to lo have the time to see what aging is going to do when there 11 are earthquake effects. And to give them an extension of 15 12 years at this point when we have absolutely no idea what 13 aging-related problems are going to happen at Diablo Canyon,
( 14 what thermal lag, what problems may be with fraudulent 15 parts, what personnel problems that have happened in the 16 past may turn up in the future at a nuclear power plant is 17 very premature. We don't want to relitigate any seismic 18 issues that have already been litigated, but what we want to 19 do is we want to be able to litigate, we want to be able to 20 discuss, we want to have a ruling on what an earthquake 21 could do to a power plant that has had erosion problems --
l 22 erosion of their components since the late -- the early --
[
23 late '60s and early '70s. Those parts have been out there.
! 24 They've been tested. They've had salt water running l-l 25 through them. They've been sitting in salt air for quite l
t Q ANN Rii.EY & ASSOCIATES, Ltd.
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24 1 some time. To give them 15 more years and say they're going
. O' . 2 to be just fine in a 7.5 earthquake is something that has 3 certainly not been-litigated in the past.
4 MR. REPKA: There's a lot there, and I'll try to 5 pass through several of them.
6 JUDGE BECHHOEFER: Well, this is basically on the-7 standing question. But I do have one question, Mr. Repka, 8 to ask you. Is risk, accident risk, for instance, partially 9 a product of time?
10 MR. REPKA: It's partially a product of time, 11 but --
12 JUDGE BECHHOEFER:- And isn't that enough of an 13 incremental risk to warrant standing under the 50-mile --
14 MR. REPKA: I don't think so.
15 JUDGE BECHHOEFER: That's my real question. I see 16 a difference in risk, and I know -- a show on the standing 17 doesn't have to be as much as a show on justifying 18 contention, and I'm just wondering whf standing isn't almost 19 a given when you have affidavits of people that live as 20 close as five miles.
21 JUDGE SHON: Mr. Repka, maybe-I can clarify 22 exactly what we're driving at here a little bit. Roughly in 23 most analyses the chance of a nuclear accident at a given
- 24 plant is taken to be a constant with time; that is, constant 25 with every increment in time. That if you propose to O ANN RILEY & ASSOCIATES, Ltd.
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l 25 1 increase substantially, that is by a fraction that-looks 2 like a half or a third or-something like that, the length of 3 time to which a person is exposed to this risk, do you not, 4 by that same token, substantially increase the risk itself?
5 MR. REPKA: I think the answer is no, because you 6 haven't -- through this amendment, you not have changed 7 anything about the plant physically or the way it's 8 operated, and so the design basis is fixed. That design c 9 basis has been through the initial licensing review, it has 10 been subject to hearing, it's -- and in that context was 11 determined to be adequate, and there is reasonable assurance 12 of safety. So given that there's no change to something 13 that is already considered to be adequate, to be safe, the 14 additional 13 or 15 years doesn't change that. Similarly,_
(
15 the environmental concerns are -- the plant was originally 16 analyzed environmentally for 40 years of operation, and so 17 the incremental years don't go beyond what was previously 18 analyzed. This is not license renewal again which renewal 19 would exceed what has been previously analyzed and, 20 therefore, would create perhaps new environmental risks or a 21 new safety risk. It's simply not an initial license where 22 you can say all accident scenarios could conceivably create 23 an off-site risk. Those risks have been analyzed and 24 determined to be within the reasonable assurance standard.
25 JUDGE BECHHoEFER: Well, wouldn't evidence an O ^"" ai'ev a Associates' 'ta-Coud Repoders
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26 fs 1 accident was going to happen in 2020, for instance, wouldn't t
2 that have been ruled outside the jurisdiction of the wards 1 3 that previously considered these questivns? It would be 4 beyond the juris- -- beyond the license period, and the ,
1 5 answer would have been, so what? There's no jurisdiction to l 1
6 oven consider that. So --
7 MR. REPKA: I don't think so, because the original 8 applications would have said a 40-year license, and until 9 the staff issued a license --
10 JUDGE BECHHOEFER: I don't think so. I think the 11 initial -- I have not a copy of it, but I'm sure that the 12 operating license set forth the term of years for which the 13 license was sought, and I think anybody who raised questions
() 14 15 beyond that term -- turn of years would have been found to be beyond the jurisdiction of the Board to consider at that 16 time. So I think those potential accident -- and I'm just 17 picking 2020 out of the air; it doesn't matter -- would not 18 have been within the jurisdiction of the ward to consider.
19 MS. von RUDEN: Might I make a brief comment 20 initially?
21 JUDGE BECHHOEFER: Walt until he's through with 22 his.
23 MR. REPKA: I mean, I think you have to keep 24 coming back to the fact of the original-design basis, and 25 this is not -- it does not create anything new, anything O ^"" aev a Associ^Tes' 'ta.
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27 1 different.
2 , JUDGE BECHHOEFER: Well, again, do you think that 3 an event occurring in-this extended period of time or this 4 recaptured period would have even been judic- --
5 MR. REPKA: Well, I think implicitly it was -- the ,
6 design accident analysis was based on 40 years of operation 7 and that it wasn't tied to any specific calendar dates.
8 That whole design basic was in play as'it were in initial 9 licensing, so, yes, it was all subject to hearing at that 10 time. The maintenance program, for example, there's nothing 11 different about what will happen in the maintenance program 12 in 13 additional years than in the first so many years.
13 That maintenance program was the maintenance program and it 14 was subject to hearing at that point.
15 JUDGE BECHHOEFER: Well, were there any -- wo 16 haven't gotten to the maintenance contention yet, but --
17 MR. REPKA: I just use that an as example for 18 the --
19 JUDGE BECHHOEFER: But I don't think there were 20 standards for maintenance programs in those days. The staff 21 approved it. I don't think -- if somebody can come in and 22 say that a portion of the maintenance program didn't conform-23 to any particular standards, there were no standards. In 24 fact, I don't think there are now those standards as such.
25 There's been a policy statement since then. I think that O ^"" aev & ^SSoci^Tes' d-Coud- Repoders 1612 K. Street, N.W., Suite 300
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28 1- when you don't have a specific rule that you conform to, it O 2 would be very difficult to raise detail questions. Then J 3 when you come back later and say, "Here's some examples, 4 look, the program's not working now," it's a matter of 5 ovidence whether it is or isn't working. Those may be 6 out-of-context examples, for instance, but that to me sounds 7 like an evidentiary matter rather than a nonacceptance of a 8 contention. It's a difference of opinion that should be 9 resolved.
10 MR. REPKA: There is a fundamental distinction 11 between the license term and the licensing basis. And the 12 fact of the matter is the licensing basis, it just was not 13 tied to any particular calendar year. It was 40 years of 14 operation. And, you know, I think we're getting hung up on
[
15 dates unnecessarily and missing what in fact was analyzed.
16 I think that's the essence of license renewal and 17 the issue the Commission is grappling with in the renewal 18 context. The renewal is fundamentally something that goes 19 beyond what has previously been analyzed. It goes beyond 20 the original licensing basis, so at that point there may be 21 standing and there may be standing to address the limited 22 scope of issues that the Commission cays can be addressed in 23 a license renewal.
24 Let me back up to that point. In licensing the 25 license renewal rule, the Commission determined that only ANN RILEY & ASSOCIATES, Ltd.
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29 1 two issues could be litigated in license renewal. One was O 2 age related, degradation, unique to renewal period and any 3 unique issues arising from the Environmental Policy Act.
4 Now, that being'the case, to argue that everything 5 in the additional 13 or 15 years now somehow could give rise 6 to off-site conferences, could create standing in this 7 proceeding is completely at odds with what the Commission's 8 saying there it would seem.
9 JUDGE BECHHOEFER: Of course, the Commission had 10 to pass a whole new set of regulations to say that, and 11 those are not applicable.
12 MR. REPKA: They're something completely -- I 13 mean, you cannot have a bigger hearing on a CP recapture
() 14 15 than on a license renewal.
sense.
That simply doesn't make any 16 JUDGE BECHHOEFER: Well, you can if the Commission 17 hasn't set standards. The Commission severely limited the 18 renewal issues and they had to pass a new set of regulations 19 to do it. And the question is, if they didn't take any 20 action and they -- as far as I can see,-there's no standards 21 for these recaptures other than maybe the one ruling on-the 22 Vermont Yankee case serves as guidance. It's not precedent, 23 but it's guidance, at least. .Other than that, I haven't 24 been able to find anything particularly.
25 MR. REPKA: I agree there's no precedent on the-Q ANN RILEY & ASSOCIATES, Ltd.
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n 30 1 point, and I don't dispute that one bit, but I think it's 2 absolutely incorrect to say that because there's no 3 precedent, because there's no Commission rule, anything 4 goes. That simply cannot be the case. You have to get back 5 to the fact that the licensing basis is not tied to any 6 particular calendar dates. It was 40 years of operation.
7 And there is no change to that licensing basis.
8 JUDGE SHON: Mr. Repka, let me approach this in a 9 little different way. It seems clear to me that with the 10 change proposed in the license, an additional decade and a 11 half or so of operation would be possible without that 12 change, would it not; isn't this true?
13 MR. REPKA: That's an accurate statement.
() 14 15 JUDGE SHON: If, as most people who have scientifically analyzed it seem to think, the rate,- if you-16 want, of accruhl of hazard is constant with time, no matter 17 how you slice it ac.d how ever small, how ever minuscule a 18 decade and a half of risk may be, it is still an additional 19 decade and a half of risk. Even ---I know it's ten to the 20 minus seventh or something per year, but it is per year, and 21 these numbers are always giving them per year.
22 'MR. REPKA: I don't want to overrate that risk, 23 because.I think it is a very minuscule number. That's 24 number one. But number two, the licensing basis for the 25 plant is a deterministic basis. It's not a probabilistic O ^"" nev ^ ^SSoci^Tes' 'id-Coud Reponers 1612 K. Street, N.W., Suite 300
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31 1 basis. And so it's been deterministically determined- to be 2 adequate based on the design basis accidents, the design 3 basis effects, and including the design basis earthquake.
4 And regardless of the likelihood of an earthquake or one of 5 those accident scenarios in the additional 13 or 15 years, 6 the fact is deterministically the licensing basis has been 7 determined to be adequate.
8 JUDGE KLINE: But isn't the scope of this 9 proceeding still defined by the amendment at hand; not by 10 the original licensing basis? And I'm still referring just 11 to the scope. Not to any merits. And it seems to me -- I 12 understand there's no precedent, but the idea of an 13 additional incremental risk over time in the context of an 14 amendment where if the amendment is granted, extra time is
(
15 granted, if the amendment is not granted, extra time is 16 denied no matter how you look at it in terms of initial 17 licensing. Now, we're not governed here by initial 18 licensing so much, but by the terms of the amendment. And 19 in that case, all we're really asking is whether there's a 20 sufficient similarity between the elements that grants 21 standing in the first place, i.e., a generalized sense of 22 risk. No specific injury effect stated at an operating 23 license stage. And the kind of the very analogous 24- generalized risk associated with this amenument. Aren't 25 they sufficiently similar in this case to resolve the O ^"" ni'ev a ^ssoci^Tes' 'ta.
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32 1 question of standing? We're not talking about any merits or 2 about whether the contentions are-good or not.
3 MR. REPKA: I think it's only superficial 4 similarity. I agree with your first principle, the scope of 5 the proceeding is defined by the amendment, but it's really 6 the definition of that amendment that we're talking about, 7 and if.it's an amendment that doesn't change anything about 8 the operation of the plant, it doesn't change anything from 9 what's been previously analyzed, doesn't change the 10 licensing basis, doesn't change the operating procedures, it 11 doesn't change anything and so it, therefore, cannot give 12 rise to -- it can't be the cause of new risk.
13 JUDGE SHON: You've used the word analyzed. What 14 has been analyzed? We've been focusing on what has been
[)
15 authorized. They're not necessarily the same. I believe 16 that what your position is is that the total time-integrated 17 risk that has been analyzed is already greater than what has 4 18 been authorized, and this is a mero change to in effect 19 equalize them; is that correct?
20 MR. REPKA: You said it better than I have.
21 JUDGE SHON: But how do we know? Isn't even that 22 fact the kind of thing that is subject to contention and a 23 point of disagreement? Surely the Mothers for Peace don't 24 believe that all of the risks that would be incurred in-the 25 extended period, in the recapture period have been analyzed.
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33 f 1 They've said so, and they've presented some things that they 2 say show that. Is that not then in_itself a matter either 3' .for hearing or, at most, for summary _ disposition rather than 4 for disminsal at the outset?
5 MR. REPKA: Well, I think that jumps several steps 6 beyond. I think we -- if you assume standing, you still 7 have to -- they have some-concerns about what may or may not 8 have been previously analyzed, and we don't agree by any 9 stretch of the imagination that they've reached the 10 thresnolds necessary to support a contention that would be 11 cubject to summary disposition, much less an evidentiary.
12 hearing. But on the fundamental point, the scope point, I 13- just continue to disagree that, you know, what has been
(\ 14 analyzed -- you know, this truly is a change that simply V
15 conforms the license to a change in NRC Staff or NRC legal 16 interpretation in 1982, and so it's a -- it's an act of law 17 more than an act of anything that can create new unanalyzed 18 risks.
19 JUDGE BECHHOEFER: Do you have anything further on 20 this or should we call on the Staff now?
21 MR. REPKA: The only additional point I'd like to 22 make on standing is the Vermont Yankee has como up before, 23 and I think the Board raised it in one of their orders, and 24 I want to reiterate I just don't believe that it provides 25 any precedent at all, because that was the State of Vermont, O ^"" ai'ev * ^SSoci^TES' 'id-Coud Repoders 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
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i 34-1 and the State of Vermont has standing, any state wou1C have !
2 standing, that an individual organization would not.
)
3 JUDGE BECHHOEFER: Well, whoa. 'I'm not so sure.
4 They came in as an intervonor. Not as-an interested state.
5 MR. REPKA: I agree they were not a 2715 state.
6 Dut the point I was going to make that the NRC Staff raised 7 an excellent point in their brief here. The hazardous 8 materials contention, a contentic. that can't possibly 9 create any off-site risks is when a state might have 10 standing but an organization that lives off site, no matter 11 how close, et11d not, so I think that shows an example of 12 where the state might have standing, but an individual or 13 organization would not.
14 JUDGE BECHHOEFER: Miss Hodgdon, do you have any 15 comments on standing?
16 MS. HODGDON: Well, I'd like to make just one 17 short comment, and that is when the staff said that they did 18 not dispute standing, the staff was really talking about the 19 geographical 50 miles seemed reasonable given that this does 20 have to do with operation.
21 As far as the scope of -- the geographical scope 22 goes -- and I certainly didn't mean to suggest that the 23 staff was not interested in the larger question of standing 24 beyond that, because the staff is, and certainly what Mr.
25 Repka has said about the way these are regarded is correct.
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~ -.
35 1 I mean, this was analyzed 40-year operation, both from the
.O 2 point of view of health and safety and from the point of 1
3 view of NEPA, of the environmental risk for 40 years, and I I 4 thought we got into something about authorization-as opposed 5 to analysis. I think that Judge Bechhoefer also raised the 6 point of decided and put that in there. It wasn't decided 7 on 40 years; therefore, what does it mean that it was 8 analyzed for 40 years? :
9 JUDGE BECHHOEFER: 40 years of operation.
10 MS. HODGDON: For 40 years of operation. That's 11 correct. And you said well, the licensing Board wasn't 12 thinking 40 years; it was thinking something else. So I 13 think we have a lot of things going on here, and not just 14 that. But the only point I would wish to add is that as to
.( )
15 the point of prematurity where the petitioner says that this 16 amendment application is premature, I would also make 17 another distinction between construction period recapture 18 amendments and license renewal, and that is that in license 19 renewal, the time for application is fixed in that 20 regulation, whereas for construction permit recapture, those-21 amendments can be filed at any time, and there is simply 22 nothing in the regulations that addresses when those should 23 be filed.
24 JUDGF BECHHOEFER: That's correct.
25 MS. HODGDON: That's all I have to say.
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s 36 p 1 JUDGE DECHHOEFER: I might add that is accurate, Q) - 2 and we recognize that Mothers for Peace position is that 3 this is a somewhat prematuro. It isn't legally premature.
4 I might say personally that -- I'm not sure the other Board 5 members join in this, but I personally think that if the 6 applicant chooses to apply now, it has every right to do so, 7 but then it cannot legitimately claim that, well, by the 8 time you get to the recapture period, everything will be 9 moot. You're sort of stuck with the facts that you have now 10 if you apply now. So when we get to particular claims based 11 on fact, at least I personally don't think a petitioner 12 should be prejudiced by -- that way. I think the 13 application may be filed at any time, but when you file it, 14 you're stuck with the facts as they exist today. At least
(
15 in ry own opinion. And as I say, I'm not sure the other ,
16 Board members join in this or not.
-17 MR. REPKA: Judge, with your leave, could I say 18 just a few words about whether this is premature or not?
19 JUDGE BECHHoEFER: No, I'm not saying -- certainly 20 legally it's clearly not premature. There's nothing in the 21 rules that says you can't do it.
22 MR. REPKA: And my point is, it goes even beyond 23 that. PG&E has a settlement with the rate Commission that 24 assumes operation for the full 40-year period, so we are 25 obligated to seek at the earliest possible point regulatory O ^"" ai'ev a Associ^Tes' 'ta-Coud Repoders l 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950 g
37 g- 1 assuredness of knowing where we stand with respect to i
- 2 operation. And, number two, perhaps the more obvious point I 3 is PG&E has the responsibility to plan its generation 4 capacity and so needs to know what generation capacity will 5 be available at any given point. We can't put a plant on 6 line instantaneously if ten years from now we were to apply 7 for an extension and it got delayed or something happened.
8 So there is a need to know, and that's why we filed the 9 application when we did, t
l 10 JUDGE BECHHOEFER: Right. Now, I'm not disputing 11 that, but I'm just trying to think that maybe some of the 12 prematurity points should not be -- you know, maybe the 13 defense said something will be moot by the time the
() 14 15 recapture period starts is really not a good defense when, by the election of the applicant, the applicant has filed 16 this early. I'm not saying you can't do it. That factor 17 should not be one to rule out otherwise legitimate 18 contentions. I'm not saying the contentions are legitimate, 19 but --
l 20 MR. REPKA: Well, it sounds like it's taking us a 21 lot into the issue of what's the scope here, and I think 22 we'll probably talk about that later.
23 JUDGE BECHHOEFER: That's correct. I don't want 24 to get into that right now.
25 MR. REPKA: But the only thing I would say is, Q ANN RlLEY & ASSOCIATES, Ltd.
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38 1 nothing about-this application changes the remedies of 10
.I 2 CFR 2.206 if new information were to come along later.
3 JUDGE BECHHOEFER: Yes, but that doesn't give 4 hearing rights to anybody, doesn't it?
5 MR. REPKA: It could if it leads to enforcement 6 action.
7 JUDGE BECHHOEFER: It's based on the staff to --
8 MR. REPKA: The fact of the matter is, the' issued 9 license is subject to later 2.206 based on new information.
10 JUDGE BECHHOEFER: That's always true, yes.
11 Anybody want to say anything further on standing?
12 Okay.
13 MS. VON RUDEN: Not being an attorney, I don't 14 know if this is relevant, but that's what this process is
)
15 for, so that people that aren't attorneys can be a part of 16 it.
17 I attended a meeting on April 2nd of 1992 between 18 PG&E and the NRC, and around the table the comment that I 19 heard from sitting in the back of the room was that in no 20 way is this plant the same plant that it began with, and in 21 fact I believe that there was a program going on to document 22 all the changes so in case of an accident, they might easily 23 research the change, which I thought it was wonderful, and I l
24 thought -- I was happy about that. But when I hear the 25 words that there's nothing different here, it's the same, I lQ l
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39 1 don't know the laws, but it haunts me that if those two O 2 entities, PG&E and the NRC, can smile and laugh and-jokingly 3 say this is not the same plant at all in any way that it was 4 when we all began, I can't understand why we can't question 5 at this point the extension of the license, because we are 6 not dealing in any way with the same plant, including the 7 fuel -- the storage of the fuel in the beginning, of course, 8 was not reracked. Was not in the same configuration, and 9 many of the things have been changed and retrofitted, and 10 that's it. I don't know if it's relevant or not. That's 11 what I wanted to say.
12 JUDGE BECHHOEFER: Well, I assume, for instance, 13 just to reracking, that an opportunity for hearing at least 14 was afforded. I don't know whether there was or wasn't a
[}
15 hearing, but if the staff does what it always does, the 16 opportunity would have been afforded.
17 MR. REPKA: I think the point really is that the ;
18 design basis of the plant has Lat changed to that degree.
19 It is the same plant. With respect to other specific 20 changes such as the spent fuel pool reracking, those are 21 subjected to the Commission's requirements for license 22 amendments and the hearing procedures that attach to those, 23 so we're not here to apply for a new license for a new-24 plant. That's not what this is all about.
25 JUDGE SHON: Mr. Repka, in effect, I think what Q ANN RILEY & ASSOCIATES, Ltd.
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40 1 you're saying is that although things may have changed about 2 the plant, many things may have changed and overall 3 governing principle call the operating license -- the 4 operating basis that's a term of art has not changed; is 5 that right?
6 MR. REPKA: That's correct.
7 The authorities that exist under the technical 8 specifications have not changed.
9 JUDGE SHON: And the current licensing basis, 10 whatever that may be, is still the same as it was?
11 MR. REPKA: Correct.
12 MS. ZAMEK: Could I say something here? I think 13 we're still talking on standing.
() 14 15 JUDGE BECHHOEFER: Yes. Right.
eventually, but we're still on standing.
We'll wind up 16 MS. ZAMEK: The NRC Staff commented in their '
17 response to our contentions that PG&E failed to cite cases 18 relevant to its claim that the 50-mile presumption does not 19 apply, and then further that there is no --
20 JUDGE BECHHOEFER: That sort of resembles 21 something-I said.
22 MS. ZAMEK: Yes. I'm repeating it. There is 23 no clear authority on standing if a CP recapture proceeding 24 is not in the NRC Staff response, so, yeah, I was just 25 wondering -- I just wanted to repeat that. That's all.
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,m. 1 Make it clear.
N- 2 JUDGE BECHHOEFER: We also don't offer any 3 objection to your standing, so --
4- MS. ZAMEK: That's true.
5 JUDGE BECHHOEFER: Absent any -- Miss Hodgdon, do 6 you have something further to say on standing?
7 MS. HODGDON: No.
8 JUDGE BECHHOEFER: You're sort of grinning there.
9 MS. HODGDON: No. Nothing.
10 JUDGE BECHHOEFER: I think before we get into 11 other things, contentions, we'll take a short, mid-morning 12 break. Ten minutes, I guess.
13 (Recess taken.)
14 JUDGE BECHHOEFER: Okay. Back on the record.
(
15 the Board has decided although we are not likely to make 16 rulings on most of the questions that are coming before us 17 during this conference, we have decided that the Mothers for 18 Peace do have standing to participate based on their 19 showing, and I think it will help the discussion further on 20 if we sort of -- if the parties know where we're going.
21 Now, we will establish -- we will issue a 22 _ pre-hearing conference order which spells out the basis for 23 our conclusion on standing as well as it will spell out our 24 rulings on every contention as well. But basically on 25 standing we think that the risk that exists will continue O ^"" ai'ev a ^ssoci^Tes' 'te.
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42 1 for additional years, and if the authorization were not O2 granted, that risk would be there for the extra 10 or 15 3 years, 12 or 15 years, whatever. Therefore, there's enough 4 showing of injury in fact to bring into play the 50-mile 5 presumption in the, I think, five members affidavits we have 6 who live considerably closer to 50. As close as five is my 7 recollection. So the Board has decided that we -- there 8 will be standing or we will grant -- we will find that there 9 is standing. But that doesn't mean -- we have to go through 10 contention by contention to determine what, if any, 11 contentions will be adequate. And we would like to just 12 start from the beginning, Number I.
13 I think Mothers for Peace could lead off on 14 Number I, at least make a general statement. There are a
[}
15 lot of specifics that we have to cover in that contention, 16 and we will go through them all, but Mothers may want to 17 make a general statement about contention Roman I, I think 18 it's set forth.
19 MS. ZAMEK: Before we do that, the Mothers for 20 Peace has prepared a written reply to the PG&E and NRC 21 responses that I would like the licensing Board to accept 22 now.
23 JUDGE BECHHOEFER: Is it very long? Because you 24 may want to -- is this reply dealing with a particular 25 contention or what?
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43 1 MS. ZAMEK: It --
2 JUDGE BECHHOEFER: Because on standing, you don't 3 have to reply.
4 MS. ZAMEK: I understand. ,
5 JUDGE BECHHOEFER: You've won-that one. You 6 better quit.
7 MS. ZAMEK: There's nothing on standing in here.
8 There was just so many arguments on-our 9 contentions from both parties that we just thought it would 10 be best to put it in writing, and we combined both of them Il together for convenience, and also we didn't get the NRC 12 Staff response until Friday afternoon, so that's why.it's at 13 this point now that we're providing it. And we also thought 14 that --
15 JUDGE BECHHOEFER: Well, normally we would just 16 discuss contention by contention at a conference such as 17 this. We have provided for the contentions and then-18 responses. And replies usually, which'this would be, would 19- come at the conference.
20 MS. ZAMEK: Right.
21 JUDGE BECHHOEFER: So I don't know whether this is 22 something that you should wish to start your presentation by 23 reading -- just reading or --
24 MS. ZAMEK: Yeah. It's --
25 JUDGE BECHHOEFER: I think it would be preferable
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44 1 than to try to pass it around.
O 2 MS. ZAMEK: I could read it, but its lengthy.
3 What I did was respond with criticisms with different types-4 of evidence. So I have a lot of different bits of evidence 5 in here that I thought might be too lengthy to read orally 6 but that individually people could read them and comment on 7 them. I could read it if you want.
8 JUDGE BECHHOEFER: No, I don't think we're going 9 to be ruling on -- certainly not on all the contentions.
10 There may be some we do, but -- we're not sure about that.
11 But we would want all the parties to have access to --
12 certainly to anything we had. We don't want statements 13 presented to us that aren't available to the other parties, 14 so --
15 MS. ZAMEK: I have a service list and everything 16 attached. It's for everybody, and enough copies for 17 everybody.
18 MR. REPKA: Judge Bechhoefer, I'm going to object 19 to this, because we haven't seen this, obviously, before 20 today, and I feel like it would be incumbent upon us to 21 respond, and I think the purpose of this conference is to 22 discuss the kinds of things we're here -- that are 23 apparently in this piece of paper which may have a service 24 list on it, but we haven't-seen it. So I would rather just 25 take up those issues now orally and not submit more paper.
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-i 45 1 JUDGE BECHHOEFER: _ We think it will be a better 2 procedure for you not to pass around your statement, but.to 3 either read it into the record as a whole or perhaps, more-4 appropriately, as we get to each contention to which it may ,
5 apply, divide it into parts and keep the parts that are 6 applicable to the particular contention.
7 MS. ZAMEK: Okay. It's organized by contention.
8 It's just that some of it's quite long.
9 JUDGE BECHHOEFER: I see. But as we get to each 10 contention, you could make a general -- we're going to call 11 on you to make a general statement for each contention 12 before we actually get into the details, so if you have, 13 like, contention I, if you have some general statements or 14 if maybe you have some general statements on contentions 15 generally -- that's not very good English, but -- if you 16 have statements about contentions generally, you could do 17 that at this time, but save the parts that deal with 18 Contentions II through XI, I guess, until we get to those 19 contentions.
20 MS. ZAMEK: Okay.
21 JUDGE BECHHOEFER: And talk about what's either 22 general or Contention I and we'll get into each subpart, 23 too, or each matter cited in support of Contention I.
24 MS. ZAMEK: Okay. Should I begin on Contention I 25 or --
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46 1 JUDGE BECHHOEFER: Yes. But as I say, you will 2 need to have general statements on contentions. You can do 3 that, too, but just-don't do II through XI at this time 4 until we get to --
5 MS. ZAMEK: I understand.
6 JUDGE BECHHOEFER: Until we get to every one of 7 them.
8 MS. ZAMEK: My general statements-of Contention I, 9 point one was that the Public Utilities Commissic' 10 settlement provides PG&E with an economic incentive to delay 11 repairs. That was part of our contentions, because they get 12 paid by the amount of electricity they produce, and so 13 they're always in a big rush at refueling time and when 14 there's repair times. It's very important to IG&E to get 15 back on line very quickly, because that's how they get paid.
16 Number two, PG&E has a longstanding history of 17 slow response to correct maintenance problems, and that's 18 documented -- we produced a lot of evidence in our 19 contentions in our original petition supplement to petition 20 to intervene, and in this one, our reply, I provided even 21 more, because the NRC Staff and PG&E both complained about-22 different things of recent_ vintage or different things'about 23 there were no violations whatever, so I continued my 24 research, and there was plenty to show the timeliness 25 problem, et cetera, et cetera, and I would like to read from
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47
,-- 1 that perhaps later.
-( 2 And a third point is that PG&E has a longstanding 3 history of lack of attention to detail, poor or incomplete 4 work, inadequate instruction to personnel, ineffective 5 surveillance. And perhaps I could read ftmm parts of these.
6 In response to pG&E's comment that all of our evidence was 7 from recent vintage, I selected one from July 5th, 1989, the 8 NRC issued enforcement action 89-85 which included a notice q 9 of violation and imposition of civil penalties in the amount 10 of $75,000.
11 The enforcement action identified two primary 12 concerns: One, failure to implement or maintain the design 13 basis of the plant through engineering and procedures and, 14 two, failure to resolve identified problems in an effective 15 and timely manner.
16 On February 3rd, 1990, an enforcement action 17 89-241 included a notice of violation and imposition of 18 civil penalties in the amount of $50,000. This was 19 involving problems in the containment circulation sumps.
20 PG&E failed to, quote, "take adequate corrective actions for 21 gaps in the sump trash screens identified in 1985, opening 22 sump access hatches on a number of occasions for time 23 periods exceeding technical specification limits," et 24 cetera, et cetera.
25 On April 10th, 1987, Nancy Culver, in our opening
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48
_1 statement, discussed the problem with the loss of residual 2 heat removal system capability. PG&E received five 3- violations for that event.
4 I would like to point out that all the evidence 5 that I show shows problems that repeat themselves again and 6 again despite corrective actions. And this indicates that 7 they're going to persist. They've persisted in their short 8 operating life, and we believe that they will continue to 9 persist.
10 Again, PG&E claims, as Mr. Repka did just earlier, 11 that we've cited isolated operational occurrences and that 12 no finding of fact cited by Mothers for Peace challenges the 13 overall effectiveness of the program. I'm quoting him --
- 14 them, from their response.
15 But we responded the sheer number and 16 repetitiveness of the problems cited show that there is 17 programmatic maintenance problems, and I think that the 18 additional evidence I've showed clearly shows it.
19 The Systematic Assessment of License Performance, 20 the SALP report, that Mr. Repka claims rated them as 21 Category 1, I find one from January 1, 1990 through 22 January 30th, 1991. As far as I know, the most current one 23 is not yet available. It's for a year-and-a-half' period.
24 And I kept seeing Category 2's, which they identified means
- 25 improving, and I have quote-here " Maintenance management i
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49 1 appearn to nood to improve the timelinosa of dealing with O 2 problema the Board discussed variuus problema that were 3 allowed to cust until the plant was undesirably af f acted or 4 high lovel management involvement was required to resolvo 5 the problem." They further stato the previous SALP -- that 6 was from, you know, 1987 or no -- noted that the liconaco 7 was slow to address noko concerns. "The previous SALP 8 recommendations to licenpoo management included a nood for 9 stronger managomont overnight. The maintenanco and 10 surveillance aron during this SALP period has boon slow to 11 show siatent improvement. Thin conclusion la based 12 largely on examplou of a lack of management aggressivonous 13 in the resolution of problemn and examples of a lack of 14 maintenance management oversight. Those problems were the 15 oubject of soveral liconaco audito and ourveillancos.
16 Subnoquently, the 11RC made this area the subject of throo 17 special inspection reports, including an enfcrcoment 18 conference."
19 There was a management mooting hold April 2nd, 20 1992, to discuss the continuing containment fan cooler unit 21 backdraft damper failuroa. I'll refer to it as CFCU. This 22 has boon going on for quito a while. It's in the original 23 contentions and it koops coming up in the documents. The 24 discussion contored on, quoto, " timely identification and 25 correction of problems." The discussions illustrated that O ANN RILEY & ASSOCIATES, Ltd.
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50 1 PG&E, quoto, " staff is not always resolving indications of 2 system problems in a prompt, thorough manner. The 3 tirneliness of your corrective actions for known problems has 4 boon a past issue of concern. Wo encourage you to ensure 5 that emerging issues or problems are not confined to 6 maintenance for resolution but are fully addressed with 7 ongineering and quality oversight organizations' involvement 8 from the point of identification."
9 In their discussion -- that was an end quoto.
10 In their discussion tsf the CFCU's, the NRC 11 questioned PG&E with indications of broken bolts on 12 backdraft dampers in March of 1991 Woro not adequately 13 followed up. And this is a quoto. "Mr. Martin observed 14 that the March 1991 failure to evaluate the broken bolt 15 issue illustrated a lack of basic engineering instincts.
16 Mr. Martin cloced the discussion of this issue by stating 17 that the attitudo should be that if any bolts are broken, 18 there is a problem. lic restated the NRC concern that 19 licensee management nooded to communiccto the right 20 expectations for resolving problems to all engineering 21 groups and to organizations performing the quality assurance 22 functions," ond quote.
23 The CFCU backdraft dampers continue to be a 24 problem. Currently there was an event 24435, October 15th, 25 1992, where at this time they have cracks in the vanos in Q ANN RlLEY & ASSOCIATES, Ltd.
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51 1 Unit 1, and they comment that this condition could impair 2 the effectiveness of the CFCU's in the event of a loss of 3 coolant accident.
4 The management meeting of April 2nd, 1992, also 5 focused on several feedwater pump problems. One problem was 6 due to the failure of the control system power supply.
7 Mr. Rueger admitted, quote, "that PG&E may have been too 8 narrowly focused on the issue, causing PG&E to fli, the 9 existing equipment, rather than to question the adequacy of 10 the design after repeated failures," end quote.
11 "Mr. Fujimoto noted that the equipment had been 12 redesigned in February 1989, and that there was an attempt 13 to make the new design work rather than reassess the
() 14 15 design," end quoto.
"Mr. Martin observed that," quote, "'it was not l
16 typical of a strong engineering organization to wait for 17 several failures to fix a deficient design, particularly in j 18 the case of these failures which resulted in challenges to 19 operators and the plant."
20 I don't know if you want me keep coing or not. I 21 have several pages of this. But it all points to the fact 22 that problems keep occurring, and the reason for that that's 23 stated clearly by the NRC inspectors is that they look 24 symptomatic. They correct an equipment failure, but they 25 don't look at the cause, they don't look at the root causes O ANN RILEY & ASSOCIATES, Ltd.
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52 1 they don't see that, "Oh, in 1981, this happened," and, "Oh.
2 yes, in 1987, we had a problem here." And in all the 3 documents I reviewed, which were plentiful, I found this 4 recurring pattern. And to me, it points that there is a 5 problematic difference in their maintenance surveillance 6 programs.
7 JUDGE BECHHOEFER: You started saying that they 8 don't see the forest for the trees or something along th:st 9 line?
10 MS. ZAMEK: Correct. And there is a good --
11 JUDGE BECHHOEFER: Do you have any comments on the 12 applicant's quote from an inspection report 9222, which is 13 September 25th, 19927 There's a quotation on page 21 and 22 14 of their response.
[}
15 JUDGE BECHHOEFER: They quoted an NRC inspection 16 report. Its report 9222.
17 MS. ZAMEK: Are you talking about PG&E's response 18 or --
19 JUDGE BECHHOEFER: PG&E's response to --
20 MS. ZAMEK: To our contentions?
21 JUDGE BECHHOEFER: To your contentions. Pages 21 22 anJ 22.
23 MS. ZAMEK: Okay.
24 JUDGE BECHHOEFER: They quote a particular 25 inspection report concerning -- well, it starts, " Normal O ANN RlLEY & ASdOCIATES, Ltd.
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l 53 1 maintenance and surveillance activities." and do you have O 2 any comment on how that fits in with some of the examples 3 that Mothers for Peace have brought up?
4 MS. ZAMEKt My comment on that is that in all 5 these inspection reports, there's usually a section they can 6 talk about the strengths and good things they find and then 7 there's the sections for the weaknesses, and I think one of 8 the -- the dispute that we have with PG&E is the 9 significance we attach to weaknesses, and even though an 10 event may occur and it's not issued a violation by the NRC, 11 does not mean that it's not significant, there's not safety 12 implications for it, and I think that's the issue that wo 13 refute here.
14 And oftentimes I find that these same 1;aragraphs 15 are repeated in each -- in each report kind of like a 16 blanket statement. They're kind of form letters that, you 17 know, adequate performance, that sort of thing, but, of 18 course, what I look at is the problems that they site is 19 also in these inspection reports.
20 JUDGE SHoN: Miss Zamek. I'm over here. It's a 21 little difficult to tell where a person's located, with the 22 speaker arrangements.
23 You used a phrase that is a term of art in this 24 regulatory business, that is " root cause," a while back. As 25 I understand it, what you're saying is that many of the
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- 1 things that have been criticized by the staff in the past 2 results in your view from the samo root cause which lay 3 uncorrected; is that what you're saying?
4 MS. ZAMEK: Not exactly, because it's not my 5 opinion. I read it in the documents over and over again.
6 It's PG&E's and the NRC's response to what's happened. I 7 just road the documents and then I --
8 JUDGE SHCN Do you have any of thoso documents 9 that specifically psy NE h , not analyzed the root cause 10 of a difficulty?
11 MS. ZAMEK ,**
12 JUDGE SHON: You do?
13 MS. ZAMEK: Yes. Would you like me to find them 14 for you.
15 JUDGE SHoN: Sure.
16 MS. ZAMEK: I'll need a few minutos to locate them 17 exactly if you have some other business while you're doing 18 that.
19 MS. DECKER: I might add -- is this on --
20 JUDGE BECHHOEFER: It's supposed to be --
21 MS. BECKER: I might add that the Mothers for 22 Peace feel that part of the problem for PG&E's rush through 23 maintenance and unwillingness to go to root causes to just 24 fix the problem at hand is they are not paid when they are 25 shut down. Thuy receive no money for being shut down, and O ^"" ni'ev a Associ^Tes' 'id-Coud Repoders 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
55 1 they also can't pass on the cost of replacement parts to 2 their ratepayers under the CPUC rate making scheme that was 3 passed in 1988 by the California Public Utilities Commission 4 and, therefore, we really strongly believe that maintenance 5 problems now that are -- the current problem is fixed, but 6 the overall root cause is not faced maybe -- may continue in 7 the future and may get worse in the future as the 8 replacement parts becomo larger and more expensive to 9 replace.
10 Wo -- just reading an article that was recently 11 cited in the Public Utilities Fortnightly November 15th, 12 1992, they stated that many plants didn't get to the 20 to 13 25 years without encountering need for major overall at a 14 midlife crisis. This major overhaul in many cases can be 15 passed through to latepayers, but that under the rate making 16 scheme in California, PG&E can't pass on any of these costs, 17 oven if they're NRC requirements to ratepayers and, 18 therefore, we are concerned that they will either put them 19 off or argue against them continuously until they're either 20 forced to do so or someone says, "Well, maybe we can go 21 around it." That's why we're concerned. That's one of the 22 reasons that we feel that maintenance is not a generic 23 issue. One, that a poorly maintained plant two and a half 24 miles from an earthquake fault is a danger and, two, that 25 because they can't pass the costs of maintenance on to their O ^"" ai'ev $ Assoc'ATes 'td-Court Reporters 1612 K. Street, N.W., Suite 300 Washington, D. C. 200'M (202) 293-3950
56 1 ratepayers, that they may try to put off or stall 2 maintaining their plant as the plant ages. Right now the 3 parts -- not all the parts -- some of the parts have been 4 there for quite some time, but some of the parts are not as 5 old and maintenance is not as difficult, but we do feel that 6 as time goes on, this is going to be a bigger cost to the 7 utility and they will hesitate to fix it in a timely manner.
8 JUDGE BECHHOEFER: We have nothing to say about 9 the rate system.
10 MS. DECKER: Absolutely. I know that. It's just 11 one of our concerns about adding an extra life.
12 JUDGE SHON: I know it's your concern and 13 understanding that this rate structure has, in your view, a
( 14 deleterious offect or might have.
)
15 MS, DECKER: That's correct.
16 JUDGE SHON: But, surprisingly, the thing that 17 you're talking about, unless I misunderstand it, is one that 18 represents in a sense a sword that cuts both ways.
19 MS. DECKER: Abcolutely.
20 JUDGE SHON: Becan-a Mr. Repka has already told us 21 that one of the reasons that we should believe that this is 22 a very, very well-run plant is that it has a high capacity 23 factor.
24 MS. DECKER: That's correct.
25 JUDGE SHON: Which is exactly the point you're O ^"" ai'ev & Associ^Tes' 'id-Coud Reponers 1612 K. Street, N.W., Suite 300 Washington, D, C. 20006 (202) 293-3950
57 1 making, that by hooping their raton to capacity factor, 2 they're encouraged, you say, not to do nooded maintenanco.
3 You say in it a good thing because they have a high capacity 4 factor or a bad thing?
5 MS. IlECKER: It in a double-edge sword and was 6 found as such by the Comminaion. And to supposedly rectify 7 that problem, they added an indopondent unfoty committen to 8 look into lasuoa. Unfortunatoly, the safety committoo han 9 no authority to do anything if they find somothing, but the 10 Comminnion also recognized the fact when they passed through 11 thin rato making schomo, that it was a doublo odge sword.
32 JUtXil' ilECilllOEFER: Which 10 this nuclear onfoty 13 committoo you just mentionod?
14 MS. IlECKER: It'a called the Indopondent Safoty 15 Committoo for Diablo Canyon and then you have the chair of 16 the anfoty committoo in your audience today.
I 'l JUDGE BECllllOEFER: I soo. And doon Mothorn for 18 Poaco or any groups nimilar to yourn have a representativo 19 on that committoo?
20 MS. Voti ItUDEll: Wo tried.
21 JUDGE 13ECilllOEFER: It's happened --
22 MS. DECKER: Well, unfortunatoly the utility mado 23 sure that there were no membora of the public on that 24 vommitten. You havo to have experience, background, and 25 knowledge in the nuclear industry to be able to sit on the ,
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58 1 committee, so no, we're not on it.
O 2 JUDGE BECHHoEFER: So there are plants where 3 representatives -- former intervenor groups.
4 MS. BECKER: We have that kind of knowledge, but 5 none of us have worked at a nuclear power plant.
6 JUDGE KLINE: Understanding your argument, though, 7 what remedies do you seek? What relief would you count as 8 adequate? In other words, what are you asking the Board to 9 rulo?
10 MS. BECKER: I'm just asking this Board to 11 consider the fact that maintenance is not a generic issue.
12 Many of the issues -- the contentions that we brought before-13 this licensing Board have been argued as being generic, and 14 we feel that the fact that they can't pass these costs on to
}
15 ratepayers makes it an issue that is of genuine dispute in 16 our case where maintenance is a genuine itaue at nuclear 17 power plants.
18 JUDGE BECHHoEFER: Let me sort of rephrase Judge 19 Kline's question.
20 MS. DECKER: okay.
21 JUDGE BECHHoEFER: Is the only remedy you see for 22 this denying the extension completely, or do you think that 23 steps could be taken to force an improvement in the 24 maintenance plan?
25 MS. BECKER: My abso) -a preference would be deny O
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59 1 it completely; however, I do think that there's probably 2 steps that could be used to make sure that the public was 3 protected in the interim.
4 JUDGE DECilllOEFER: Would the Mothers for peace 5 support such additional procedures, perhaps, or --
6 MS. BECKER: It would certainly depend on what 7 they were.
8 JUDGE BECilHOEFERt Which would lead to perhaps an 9 improvement in the practices which you've attempted to spell 10 out.
11 MS. BECKER: Any improvements would be an 12 advantage to the people who live by the plant.
13 JUDGE KLINE: Would you include in your argument, 14 then, a statement of why you believe the current regulations 15 governing violations are inadequate? And I want to clarify 16 that in that under current practice, there is a procedure 17 involving inspections, discovery of violations, notice of 18 violations, some commitment to remedy it even including 19 civil penalties on occasion. The whole idea is that this 20 will provide the necessary incentive to keep the power plant 21 running properly and in compliance with regulations.
22 Now, you have cited a number of these specific 23 instances of these notices of violation and the consequences 24 that flowed from it. Why, in your view, is this not 25 adequate? In other words, why is this a violation of some O ^"" ai'ev $ ^SSociATes' 'id-Court Reporters 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950 ]
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60 1 additional regulation or does it create an undue public 2 hazard, or why is this not an adequate procese, in your 3 view?
4 MS. BECKER: Jill, do you want to answer that?
5 MS. ZAMEK: I'm not sure I understood the 6 question.
7 MS. BECKER: I don't think that we said the 8 process isn't adequate. I think that what we're stating is 9 that there is a repeated pattern of violations at the plant 10 in maintenance, and if those continue, to give them an extra 11 13 to 15 years to violate safety regulations would be 12 certainly at a disadvantage to people who live here.
13 JUDGE KLINE: Is it error-free operations, then,
() 14 15 that you seek or --
MS. BECKER: Oh, it would certainly be what wo 16 would like, yes.
17 JUDGE KLINE: But can you practically seek it?
18 See, we're not asking just your sort of qualitative 19 preferences. The Board has to decide things, you know, one 20 way or another, up or down, and so we have to know what it 21 is you're asking for in the first place. And I guess if you 22 point to a process that was designed to correct what the --
23 the deficiencies that you point to, we need to have some 24 qualification of why you think that process isn't working or 25 why you think it's effective. If the amendment were O ^"" ai'ev $ Associ^Tes' 'ta-Coud Repoders 1612 K. Street, N.W., Suite 300 -
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61 1 granted, presumably new violations would be found in future 2 inspections and presumably NRC would issue a notice of 3 violation and presumably the company would respond in some 4 way.
5 Now -- and I don't want to get into any merits, 6 but this is the kind of process that would likely -- is that 7 process faulty or fatally flawed or wrong, in your view?
8 MS. ZAMEK: Can I -- n 9 JUDGE KLINE: Does it not assure safety to do that 10 way?
11 MS. ZAMEK: Well, I think the idea is that wo 12 count on the maintenance and surveillance programs to work 13 to protect us so that we don't have, you know, a series of 14 incidents that cause a problem. And so when we've 15 identified that it's not working, when we read this stuff 16 and we see the repeating patterns, when the NRC sites these 17 violations, and they're like little Band-Aids on it. That's 18 my impression on it. They fix that, _but then really there 19 was something else that was, you know, this deeper cause, 20 and we're looking at the deeper issues here, these root 21 causes, and finding that the employees are not going to the 22 upper level management which I read in getting help with 23 this sort of stuff, and so -- I_ lost my train of thought
- 24 there.
l 25 JUDGE KLINE: That's all right. Take your time.
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62 1 HS. ZAMEK: So I was saying that it's not working O 2 in this case. It's shown that it's not working acause !
3 despite corrective actions, they repeat the same problems 4 again and again, particularly in the employees, and we'll 5 get there in the next contention.
6 JUDGE KLINE: So you would ask us to draw an 7 inference that there's a pattern of behavior that hasn't 8 been fixed even though the individual point-by-point 9 inspections are being --
10 MS. ZAMEK Absolutely. You know, like the crane 11 boom incident, and then just shortly -- and that could have 12 been a very serious incident. And then shortly after that, 13 there was another one with the two-ton chain fall which was
{} 14 15 very similar. The loading stuff.
hadn't learned from the original incident, and that's the And it showed that they 16 sort of stuff that is bothering me.
17 I did find, too, in this -- you're asking for the 18 root causes. That's why I thought if you had this in your 19 hand, I could say, " Turn to page 6." But it's inspection 20 report 90-13 from August 13th, 1990, quote, "The inspection 21 report identified weaknesses regarding the timeliness of 22 PG&E's management systems in establishing the root cause of 23 problems and in implementing corrective actions to prevent 24 recurrences. The management systems designed to recognize, l 25 raise, and pursue the resolution of problems were lacking O ^"" ai'ev a ^ssociATes 'ta.
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63 1 during the report period," and quote.
2 JUDGE KLINE: Was it your view that -- there was a 3 little phrase in there, " implementing corrective actions to 4 prevent recurrences." Is it your view that that did not 5 happen? I mean, was it --
6 MS. ZAMEK: Or it didn't happen in a timely 7 fashion.
8 JUDGE KLINE: I see.
9 MS. ZAMEK: Because sometimes they do, but it 10 takes them two years. They notice a problem, but it takes 11 them a long time to fix it.
12 And then the second one I found just looking 13 briefly was September 12th, 1992, inspection report -- well, 14 the inspection report was from November 5th, 1992, but the 15 event was on September 12.
16 JUDGE BECHHOEFER: Which number report --
17 MS. ZAMEK: I don't have a number on it. A lot of 18 times they don't have numbers on it. They just have the 19 dates. I don't know why.
20 JUDGE BECHHOEFER: Now, what was the --
21 MS. ZAMEK: The quote --
22 JUDGE BECHHOEFER: I mean, what was the date?
23 MS. ZAMEK: Oh, I'm sorry. The date of report was 24 November 5th, 1992, and it was involving the spurious 25 reopening of a main turbir,J stop valve and two governor Q ANN RILEY & ASSOCIATES, Ltd.
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64 1 valvos during shutdown of Unit 1.
O 2 And they stato, this is a quoto, "The lack of l 3 carly full identification of the underlying safety issues in 4 this caso indicated a low level of safety awareness and a 5 loan than fully penetrating technical review of procursor 6 events. The inspectoro stated to the licensoo that this I 7 situation was a good example where a thoughtful review of 8 the relevant AR's could have revealed an ongoing plant issue i
9 which could have boon addressed and fixed bofere it becamo 10 self-revealing," and quoto. And they talk about events that 11 happened previously that they didn't learn from.
12 JUDGE SHON: Thank you. I think that it's my 13 question you were responding to at the beginning.
14 MS. ZAMEK: Oh, I'm sorry.
}
15 JUDGE BECHHOEFER: Is that all of the sort of 16 general statomonts on Contention I that you have? Because 17 we'll got into some of the specifica paragraph by paragraph ,
18 almost.
19 MS. ZAMEK: Okay.
20 JUDGE BECHHOEFER: Mr. Ropka, anything you want to 21 at least make a general statement as to -- I have one thing 22 I wanted to ask concerning this. You've discussed SALP 23 ratings and you've placed a lot of emphasis in maintenance 24 and surveillance on Level 2. Now, Level 2 is just no better 1
25 than average. It's intermediate. And I wonder why you've Q ANN RILEY & ASSOCIATES, Ltd.
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65 1 stressed that. One I can see, and one is superior, 2 according to the staff. Two is just they're doing what they 3 should do, a normal inspection after it and all that kind of 4 stuff comes out, too.
5 MR. REPKA: There's a number of things I want to 6 respond to.
7 JUDGE BECHHOEFER: I don't know what your point 8 was. And I'd also like to ask you, on the maintenance area, 9 the record I have here, which is -- I did a little quick 10 research, ! looked at a document called NUREG 1214, which 11 lists SALP ratings for years past and the maintenance area 12 Diablo Canyon used to be one, now there are two, and if you 13 project things, does that go through and then unsatisfactory 14 or don't you do it that way?
q{ }
15 MR. REPKA: Clearly that's an --
16 JUDGE BECHHOEFER: I'm saying, do you draw a line 17 that way? Or how do you look at those things? You used to 18- be 1, now you're 2 on that.
19 MR. REPKA: I mean, the petitioners hav.a left me 20 with a number of things to address, and you've asked me some 21 questions.
22 JUDGE BECHHOEFER: I realize that. I realize 23 that.
24 MR. REPKA: First on the SALP, I think you start i 25 from an erroneous proposition when you say Category 2 is no
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66 1 better that average. category 2 is defined by the SALP 2 program itself as good performance. It's performance in 3 excess of what's necessary. It's performance better than a 4 more regulatory compliance. A category 2 I don't think you i 5 can shrug off and say category 2 is -- you know, that's just 6 doing what - "'re supposed to do, because by definition it's 7 doing more n you're supposed to do. That's the 8 definition of a Category 2.
9 We put a lot of focus -- we try to find -- the l
10 basic point here, and what we're hearing more of this 11 morning is -- I think it's the petitioners who are losing 12 the forest for the trees. The system, the process that's in 13 place, the normal licensee reporting system, the NRC's 14 inspection enforcement program is intended to provide, A, 15 licensee self-analysis of what's going on at the plant and 16 self-correction, Number 2, NRC enforcement and inspection 17 overview to ensure that we maintain regulatory compliance, la and that process does work as proven -- these are the 19 examples that prove the rule that process does work.
20 But the NRC's precedence show -- and I think the 21 legal standards are not ones of absolute perfection.
22 They're ones of reasonable pursuing of safety. Yes, we 23 would like to achieve absolute perfection and make no 24 personnel errors, but that's not always possible, and the 25 fact is, none of these events are safety significant, and O
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67 I we've tried to find the big picture performance programmatic 2 indicator.
3 JUDGE BECHiloEFER: Conclusory? I mean, isn't that 4 one view, but not the only view?
5 MR. REPKA: Well, I think that's -- the fact is :
6 under the NRC's requirements and the NRC's case law, when 7 you talk about a program such as a maintenance program or a 8 quality assurance program, individual isolated events are 9 not events that could lead to any relief in an NRC 10 proceeding absent some indication of a programmatic problem, 11 and if you look at the program at Diablo Canyon, you look at 12 what the NRC has said about it, it's completely at odds with 13 what the petitioners would have you believe. '
( )
14 A Category 2 SALP rating does mean something. It 15 does mean the program is working. If the program was as bad 16 as what's presented here, if root causes were not being 17 corrected, if we were being dilatory consistently across the 18 board, believe me, the NRC Staff would not rate this a 19 Category 2 plant in maintenance. Inspection report 9222 20 which we've cited in our papers very plainly says, and I'll 21 quote it again, " Normal maintenance and surveillance 22 activities observed by the inspectors appear to be well 23 thought out and deficiencies properly dispositioned.
24 Licensee's operations and maintenance personnel appear 25 professional and dedicated in accomplishing their work.
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68 1 Training of license to nonlicensed operations personnel 2 appear to have boon well timed."
3 In my experience, and I think the exporlence of 4 all those around me, the NRC Staff and the NRC inspectors 5 don't give accolados in their inspection reports lightly.
6 They're not known for -- I think the petitioners this 7 morning suggested that these kind of things are all kind of 8 boiler plato and they're in all inpoection reports. That 9 simply is not the caso. The NRC does not tell a licensee 10 it's doing a good job, its program is fs :tioning m 11 offectively if that's not the case. No good regulator would 12 do that.
13 JUDGE BECilllOEFER: Right, but wasn't that just a
() 14 15 listing of strengths; that if you go to the next paragraph, they found some weaknessos, too? They're both --
16 MR. REPKA: The point is, the strengths are the 17 overall program. The weakness is maybe an individual event 18 an individual slipup. And --
19 JUDGE BECll!!OEFER: Well, are you saying that if 20 you have enough of the latter, you aren't overlooking the 21 problematic indications? If you have enough s11 pups --
22 MR. REPKA: There are no findings here that say 23 the program has a generic problem. There are no findings 24 here that says there is something wrong with the program or 25 the way it's being implemented.
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l 69 1 JUDGE 13ECill!0EFER: lio, we have a claim, though --
7-2 MR. REPKA: If you had enough --
3 JUDGE '1C}lllOEFER: -- because of the number of 4 individual problems there is a weakness and that there is a 5 problem. The claim is being made that there is a problem, 6 JUDGE S110!i: Yes. And Mr. Repka --
7 JUDGE BECilllOEFER: And we have to look all of them 8 together.
9 JUDGE SilOll: That was one in a few minutes to come 10 up with a couple of places where the staff had said things 11 like management isn't giving this enough attention. liow ,
12 that's scarcely a simple incidence of one slip. If 13 management doesn't give a program enough attention, that's 14 pretty eventful.
15 MR. REPKA: I think you're making a broad 16 conclusion here. You're looking at these incidents -- we're 17 seeing a lot of mixing of apples and oranges. This morning 18 we started talking about the chain fall incident and the 19 crane. Those were personnel errors, admittedly. They're 20 not maintenance related. They weren't originally cited as 21 maintenance violations. Some of the incidents involving the 22 timeliness of engineering assessments and quality assurance 23 evaluations, again, those are not maintenance issues per se, 24 so it's an artificial bumping up of the numbers by mixing 25 the findings and incidents related to various disparate
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70 1 elements of the plant into one category.
2 Again, we hear this morning about the September 3 1991 SALP report. I want to again focus on the big picture 4 of what the NRC said. In the cover letter, it says the SALP S report found your overall performance to be very good, in 6 some cases superior, and clearly directed towards safe 7 facility operation. And then it goes on to talk about some 8 specific strong performance areas, including plant 9 operations, which was the Category 1 I alluded to earlier.
10 JUDGE BECHHoEFER: Right.
11 MR. REPKA: I think we have to focus -- if we're 12 looking for the basis of a contention here, we have to focus 13 on the big picture, not the minutia, that simply demonstrate 14 the system that's in place works.
15 JUDGE SHoN: But Mr. Repka, again what we have 16 what appears to be the exact sort of dispute that is to be 17 resolved by hearings or by submis sions and motions for 18 summary disposition or something like that. Miss Zamek says 19 they said you aren't giving enough management attention, 20 you're not doing that, and you say, "Well, that was for 21 different kinds of things that have mixed apples and oranges 22 and we're really doing very well." Isn't that exactly what 23 this process is meant to sort out? Doesn't that go to the 24 merits rather than to the admissibility?
25 MR. REPKA: I think historically that may have O ^"" ni'ev & Associates' 'id-Court Reporters 1612 K. Street, N.W., Suite 300 Washington, D C. 20006 (202) 293-3950
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71 1 been the case. I don't think that's the caso now. the O 2 Commission revised its threshold standards to specifically 3 eliminate that scenario. All of what we're talking about l 4 here is based on publicly available records, publicly 5 available documents, documents that speak for themselves.
6 This Board can look at those documents just the same as I 7 can or the petitioners can, and we can see on their face 8 what is really going on here. We can see what the scope or 9 those findings are. We can compare them to the programmatic 10 findings, and the Commission threshold standard for 11 Commission contentions is a finding of general issue in 12 dispute. And I would submit that all of these things -- and 13 we could stipulate that these inspection reports and these 14 inspection findings exist and they are what the NRC Staff
(
15 has found, but they simply do not add up, taken together, to 16 a programmatic weakness.
17 JUDGE KLINE: But isn't that a judgment on the 18 merits? That's the part that I would like further 19 explanation on, because as I understand it, you would seek a 20 finding of fact that no adverse inference could be drawn 21 from these reports, and the Mothers for Peace would seek a 22 finding of fact that such an adverse inference could be 23 drawn, and that certain regulatory consequences would then 24 flow from one finding or the other, but isn't this really a 25 finding of fact that would emerge from a hearing, not to be O ^"" ai'ev ^ ^ssoci^Tes' 'id-Coud Repoders 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
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72 l 1 taken into account at the contention admission stage?
O 2 MR. REPKA: No, It's a finding of the basis !
3 required by the Commission for an admissible contention.
4 The basis must be a genuine issue in dispute, one that could 5 ontitle the petitioner to relief in the proceeding. That's 6 the essence, that's a direct paraphrase of the new rule.
7 And that requires that you look at these findings and 8 requires -- you know, it requires a basis for a contention, 9 and we submit that there simply is no such basis.
10 JUDGE BECllllOEFER: Miss llodgden, do you have 11 anything to say about contention? Generally, Contention I 12 we may get to specific --
13 MS. IlODGIX)N: Generally, Contention I. I'm not 14 sure that -- yes. I will address it generally to the extent 15 that it was addressed generally, and that is the staff 16 objects --
17 JUDGE BEClll10EFER: I do have one question.
18 MS. Il0DGDON: Yes. What happened to the three 19 lines at the bottom of page 12 and the top of page 13? Is 20 that your question?
21 JUDGE DEClfl10EFER: No.
22 MS. IlODGDON : No.
23 JUDGE KLINE: That's another one.
24 JUDGE BECIIHOEFER: That's another one. We haven't 25 gotten to those details.
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73 1 The staff, as far.as I can see, and I searched, 2 didn't say one word about SALP ratings one way or the other, 3 and my question is, should SALP ratings even been looked at 4 by a board? And I say this having looked at them in some 5 proceedings in the past, but shouldn't we be looking at SALP 6 ratings one way or the other?
7 MS. HODGDON: Well, I could say something funny 8 and say that the reason that the contention was admitted in 9 Vermont Yankee was because the licensee relied on SALP to 10 its detriment. So I don't know. Of course, the SALP has a 11 reason for being, and it's very useful. But, however, it 12 results in just exactly what's going on here; that the 13 petitioner says, "It says here weaknesses," and the licensee
(~ 14 says, "It says here strengths," and so it does say both of 15 those things. And I don't know that a factual issue is 16 really joined there, because those are all judgements which 17 the NRC understands, and I think the licensee does, too.
18 Our response does not address SALP. That is true.
19 We do not. And so we don't -- our basis -- our judgment of 20 the admissibility of Contention I is not based on SALP 21 reports. Our feeling, our judgment is that Contention I 22 does not raise a genuine issue of material fact that's 23 cognizable in this proceeding. Beyond that, it probably 24 wouldn't be admissible even under the old standard, because 25 it lacks basis and specificity.
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74 1 When you look closely at the inspection reports, O 2 et cetera, and the LER's that the petitioner relies on, you r 3 see that all of those things taken in context don't 4 represent what the petitioner says that they represent. ;
5 Therefore, I would object to the intervenor's coming in here 6 today -- the petitioners, rather -- excuse me -- coming in 7 here today and wanting to introduce more inspection reports, a notice of violation which we're not prepared on, because I 9 brought everything that they identified.
10 JUDGE BECHHOEFER: I got a lot of them to the 11 extent they fit in my briefcase.
12 MS. HODGDON: Well, I have everything on certain 13 subject matters, but these other ones, I think that if I 14 looked at them closely, I would sco that those two are 15 things that are taken out of context or they're not on the 16 subject matter that they purport to be on, and so we don't 17 have the opportunity to do that here. And I don't think 18 that the Board should entertain anything beyond the 19 petitioner's original basis. If they did, then certainly 20 the staff and the licensee would be entitled to file a reply 21 in writing to what they have sought to introduce here today.
22 It goes far beyond the responses.
23 JUDGE KLINE: But the admission of a contention at 24 this stage is still a procedure matter, not a factual, and 25 the fact that you disagree with them on whether these l
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75 1 inspection reports show anything significant or not, isn't l O 2 that a factual dis --
l 3 MS. HODGDON: No, it's not. And in fact, I don't 4 disagree with them about the significance. I disagree with 5 their characterization and with their rollance as a basis.
6 For example, they use an enforcement conference where i
J 7 certain people said certain things. That enforcement 8 conference was geared toward an enforcement action, which 9 did not take place. Therefore, what anybody said there 10 can't be relied on for the fact that this was a maintenance 11 problem or a surveillance problem._ In addition, this was 12 identified in an LER which they don't tell us about, and so 13 when you look at this in context, you see that it's not at 14 all what the petitioner makes it out to be, and so I think 15 that their basis has to be looked at in context. I mean, 16 what --
17 JUDGE BECHHOEFER: Well, isn't that, too, an 18 evidentiary question, though?
19 MS. HODGDON: No, it's not. It's a problem of 20 basis. They don't have a basis, because their basis, when 21 seen in context, disappears. That is not an evidentiary 22 matter.- That is a matter of their not raising a genuino 23 issue or of their mischaracterizing documents, their 24 unwillingness to look at a document. They're willing to go 25 through what we have seen here this morning, they comb O ^"" ai'ev ^ ^ssoci^Tes' 'id.
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76 1 through and they look for certain key words, weakness and 2 words like that, and then -- and they think that all adds up 3 to something, but it's not additive, because they're not 4 about the same subject mattor. They don't necessarily --
5 they don't look at the resolution of the problem. And I 6 just think that, no -- I mean, what it is is a lack of 7 basis. It's not an evidentiary matter.
8 JUDGE SHON: Miss Hodgdon, what I understand, I 9 think what you're, in effect, saying is that the petitioners 10 have combed through certain staff documents, have picked 11 only the bad parts and not looked at the overall conclusion 12 of those documents, and that when we assess whether or not a 13 genuine issue of fact exists, we should look at the overall 14 conclusion of the document rather than simply at the bad
(
15 parts or simply at the good parts since all documents have 16 both of these things? Is that --
, 17 MS. HODGDON: Yes. My point is that the staff 18 brief tries to show these bases in context. I think it's 19 proper for the Board to assess these bases that were 20 originally offered in the context in which they should be 21 seen. And that should be the Board's task here.
22 JUDGE SHON: Then the only way we could really 23 accomplish this is to look individually at each of the 24 documents, LER's, conference reports, inspection reports, 25 and so on that the staff or the applicant has produced and O ANN RILEY & ASSOCIATES, Ltd.
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. 77 I try to casess whether the overall import of each document is 2 as the intervenor -- as the petitioners say it will be or as 3 the staff and the licensee say it will be? Is that the way c 4 we're supposed to proceed, do you thi.1k?
5 MS. HODGDON: Well, the way you characterize it, 6 it sounds like an onerous chore. And in fact, it was an 7 onerous chore of finding some of the documents, because they 8 weren't properly identified, but we found the documents, we 9 read the documents, and we tried to provide a context, and I 10 think that our assessment of them is fair, but certainly the 11 Board may look at these-documents itself and see what it 12 thinks of the basis in the context in which it appears, 13 which is not the way the petitioner has offered it. So, 14 yes, I don't know that you have to read every word on these 15 subjects, but certainly if an issue is raised and it's been 16 closed out, then it certainly is appropriate to 101N at 17 whera it was closed out and nat just look at this issue that ,
18 was raised as if it were stil. a living issue. So, yes. I 19 --
20 JUDGE SHON: And you also say that the staff has l
21 looked at least at all the documents that were cited that
! 22 you could get a hold of that were mentioned in the' original 23 supplement to the c,etition, although there seem to be some 24 others that have come up at this point..
25 .MS. HODGDON: We object to those. We object'--
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78 1 1 JUDGE S110N: And you object to-our taking any-
-.O 2 notice of those whatever, and after you have analyzed them, 3 you have found_that there is none -- that there are none of 4 them that show any reason for further investigation or in 5 every case the document's overall conclusion we1 effect 6 favorable to the licensee; is that right?
7 MS, llODGDON : I don't believe that notices of 8 violation are favorable to the licensee. I mean, but I do 9 believe that these things were not of major safety 10 significance. These were category 4 and 5 -- I mean, yes.
11 Levels -- severity levels of 4 and 5, which are of lesser 12 significance. These violations that the Mothers -- that the 13 petitioners sought to introduce. So I think that some of 4
14 them certainly have some significance. Some of them might 15 even have minor safety significance. They have whatever 16 significance we say they had in our responses, becauce that 17 is where we looked at them and offered them in context. I 18 think that Contention I lacks a basis in that it doesn't 19 show anything about Diablo Canyon that is unusual with 20 regard to surveillance and maintenance that would cause it 21 not to be able to get it's CP recaptured that it's applied 22 for.
23 JUDGE SHON: In other words, although some of them 24 may have resulted in notices of violations, these were all 25 Category 3 or 4?
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79 1 MS . -- HO DG DON : They were 4 or 5. They were not 3.
2 JUDGE SHON: 4 or 5. No 3'e. And that-Category 4 3 and 4 violations are not the sort of thing that would lead 4 one to deny a licenue or refuse to extend a license or to do 5 anything to cause the plant to suspend operations; is that 6 right?
l 7 MS. HODGDON: That is correct up to a certain 8 point. I should say that even a Category 3 violation would 9 not involve the denial of a license. But what we're talking 10 about is what the petitioner put in here originally, and 11 what the petitioner put in here doesn't amount to much, and 12 that's what we say in our response.
13 JUDGE SHON: At least it doesn't amount to enough 14 to justify the relief they have asked?
15 MS. HODGDON: That is correct.
16 JUDGE KLINE: As I understand it, there is no 17 dispute that these violations took place and that they were 18 closed out in some sense to at least the regulator's 19 satisfaction, but what the NRC Staff has used in the past in 20 its enforcement practice, a practice called accumulation or 21 something -- I've forgotten the exact words.
22 MS. HODGDON: Oh, you mean you add up a number of 23 small ones and you get --
24 JUDGE KLINE: Add up the small ones and you get to
, 25 a higher severity level penalty, and what it appears to me Q ANN RlLEY & ASSOCIATES, Ltd.
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80 3 1 is that the Mothers for Peace are attempting to do something
\-] 2 similar. That is, they're not disputing that an individual 3 violation occurred and that it was closed out. They're 4 saying that collectively they have more significance than 5 any do individually.
6 Now, whether that's true or not, we don't know 7 now, but isn't that enough to get past the threshold of 8 admission such that we can -- even if it turns out later to 9 be false, even if it turns out later that you're right, that 10 it doesn't add up to anything?
11 MS. HODGDON : No.
12 JUDGE KLINE: What is it in the current 13 regulations for admission of contentions that says we can
(} 14 15 decide that on priority?
evidentiary presentation.
All they have to do is make an They're not inviting a rebuttal 16 at this time of their presentation. They're just -- all 17 they really have to show is that they did their homework.
18 MS. HODGDON: But my point is that they did not, 19 and even if they had, that they lack the expertise to be 20 able to read these documents, which has been clearly 21 evidenced by what they put in here this morning and what 22 they put in there, and so I think that to litigate such a 23 contention even would be an exercise in futility. There's 24 no issue raised here, there's no basis given, and there's 25 just nothing to connect what the petitioner has said here to
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-1 operation under the recaptured time. Nothing.
2 JUDGE KLINE: Is there no demonstration in your 3 mind of maintenance deficiencies that could lead to a denial 4 of a recapture amendment? Is this a -- I mean, what I'm ,
5 trying to get at is whether we're being advised to adopt 6 principles that would in general prohibit any inquiries.
7 There isn't an opportunity for hearing granted after all.
8 MS. HODGDON: Yes. I think contrary to what the -
9 licensee believes, that this is purely administrative. I do 10 believe that the staff does look to certain matters, but 11 I'll go into that on another contention later, but I do 12 believe that there is a possibility of having a contention, 13 an admissible contention, on this subject matter on a 14 showing of some specific -- I mean, with -- a contention
(
15 that has an adequate basis showing something programmatic, a 16 specific problem with a specific plant. I do think it might 17 be possible to admit a contention on a CP recapture. Surely 18 there must be, because, I mean, the Commission does allow i 19 intervention in these proceedings, although it sort of 20 alludes us about what that contention might be. My point is 21 that this Contention I just doesn't make it and wouldn't 22 make it even under the old standard for contentions, because 23 it lacks a basis.
24 JUDGE BECHHOEFER: Do you think this is 25 different -- and I realize the rules were different, but the O ^"" ai'ev a ^SSoci^Tes' 'te-Coud Reponers 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950 )
82 1 -- my recollection -- this wasn't my case, but I heard at 2 1 cast that the staff opposed the contention that was 3 admitted for Vermont Yankee. Now, that's what I've been 4 told, at least.
5 MS. HODGDON: Well, it was my case, so --
6 JUDGE BECHHOEFER: But it was --
7 MS. HODGDON : So you're going to blame me for 8 this.
9 Well, the staff felt that in that case, as I said, 10 a lot of reliance was placed on a SALP report there, and the 11 staff did argue that the petitioner didn't understand what 12 was meant by weakness. This is a term of art. And that is 13 true. I mean, the petitioner -- nevertheless, the 14 petitioner stated in Vermont did manage to get this 15 contention and the contention was admitted. It never went 16 to hearing, and the case was settled as you mentioned 17 earlier, Judge Bechhoefer.
18 MR. REPKA: Judge Bechhoefer, with your leave, 19 could I respond to a couple points?
20 JUDGE BECHHOEFER: Certainly.
21 MR. REPKA: The first thing I think Judge Kline 22 was getting at is the concern is the Board doesn't feel it 23 can make an evidentiary finding, and I just want to 24 reiterate that the Board doesn't have to take what's 25 presented by a petitioner uncritically. A board has to -- I C ANN RILEY & ASSOCIATES, Ltd.
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83 q 1 think it's incumbent and required to look at what's
'O 2 presented to make sure that it fairly adds up to the 3 contention that's -- the conclusion that's proffered, and we 4 think that that's not the case here. I think if you really S look, if you get down into the level of looking at these 6 specific, isolated findings, you find that they really just 7 don't support that.
8 But even more broadly, I think there's again the -
9 basic legal proposition that individual violations, 10 individual licensee event reports, et cetera, et cetera, 11 just don't add up to the kind of relief that the petitioner 12 seemed to be asking, and I think that the Board is not 13 required to go through an evidentiary hearing to make that 14 determination. I think that it speaks for itself quite 15 loudly.
16 And again, you just again have to look at this 17 whole issue in context to the fact that this plant has been 18 put on the NRC's best performers list and that's a very 19 exclusive list, and I think that it just sheds incredible 20 perspective on the whole thing.
21 JUDGE KLINE: Is it your view that even if a
-22 demonstration of some sort of maintenance deficiency as a 23 pattern were to be made, that even if that were to take 24 place, that no relief could be granted, i.e., that the 25 extension period could not be denied or conditioned?
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84 1 MR. REPKA: The extension period clearly could not 2 be conditioned - I mean, could not be denied based on that.
3 As far as a pattern of maintenance, I think you have to look L 4 at the evidence again and see does the evidence really 5 support that? And I don't think it does here. I don't 6 think what's offered doesn't even remotely suggest that 7 conclusion.
8 7 think if you look at the whole pattern issue, 9 the NRC Staff clearly has not come to that conclusion. They 10 have not said that anything more or anything different needs 11 to be done about maintenance, and I don't think there's any i
L 12 basis for this Board to conclude now or following an l
l 13 evidentiary hearing that some further condition needs to be 14 put on the license. I just don't see that as a realistic 15 possibility, i
l 16 JUDGE KLINE: It may not turn out to be that as a 17 matter of fact, but the -- but is it somehow ruled out in l i
18 principle that that is to say can we decide now that no such 19 relief could be granted?
20 MR. REPKA: I think if a condition -- if a --
21 assuming number one, the maintenance issue, were within the 22 scope of the proceeding, an argument we haven't addressed l 23 here this morning and one which I'm not concluding here, we 24 continue to believe that maintenance implementation issues 25 are really NRC inspection, enforcement, 10 CFR'2.206 issues. ..
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puulis u inuPig 85 1 But even saying that's not the case for the sake of 2 argument, if you had an admissible-contention, it.is 3 possible, theoretically, that -- and the evidence later 4 supported it, then, yes, you could come up with a condition 5 on a maintenance program that something more could be done.
6 But we're not there. We're simply not there here.
7 JUDGE KLINE: But then we're not at a situation 8 where we can rule out a contention on the basis that no -
9 relief could be granted?
10 MR. REPKA: No relief could be granted based on 11 the basis presented here.
12 JUDGE KLINE: Okay.
13 MS. VON RUDEN: Could I speak to our expertise in
() 14 15 reviewing the documents, please.
JUDGE BECHHOEFER: Please do.
16 MS. VON RUDEN: I'm speaking to Staff. And when 17 we originally -- and as you can see, we're a small group 18 that's not employed during every day. We went to the 19 library. We did start out with the license event report.
20 They were overwhelming to us in volume. There were so many.
21 So we just made the decision, due to the really short time 22 and very small staff, we're talking three, four people, 23 sporadically to just access the document basically for 24 violations. It's not that there-isn't a history in the 25 license of the reports as well that could show a pattern.
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- - 1 It's the time limitation. It's not that we were too 2 ignorant to read all the documents. It's that time limited 3 us to basically trying to find these things that the NRC had 4 considered a violation. And that is why our documents are 5 limited and otr research. Not because we weren't aware that- l 6 there weren't otJar sources.
7 MS. CULVER: Can I add a little bit to that?
8 JUDGE BECHHOEFER: Please.
9 MS. CULVER: We obviously are working with some 10 handicaps that PG&E and NRC Staff do not share, and I think 11 it's important for us for you to understand what some of 12 those are, and June has just outlined some. After we were 13 informed that our public document room was hooked up to the
() 14 15 new dock system so that we could have access to the document room in Washington, we thought that that was wonderful, only 16 to discover that the only person who knew how to use it 17 retired at the beginning of October, just about the time we r
18 really needed him. So there's another person trying to use 19 it, but she's often not there and she's also told us that we 20 can't use it after 2:00 p.m. Well, we have jobs and 21 families, and it's very, very difficult under those 22 conditions. Now, I'm not sure that's true, because someone 23 .in Washington said that other intervenors actually use it in 24 the evening, but she said and we've been told in our 25 document room that the computer in Washington closes down at O ^"" ai'ev ^ ^ssoci^Tes' 'id-Coud Repoders 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
l 87 1 2:00 o' clock our time. It's often busy when you do get onto 2 it.
3 JUDGE BECHHOEFER: That's not true.
4 MS. CULVER: That's not true?
5 JUDGE BECHHOEFER: I thought it was open 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> 6 a day. I've used it after hours. I've never stayed that 7 late to know, but seven or eight o' clock, it's still 8 working. In fact, it's easier to get to than at two 9 o' clock.
10 MS. CULVER: Perhaps you could talk to the 11 librarian over here who thinks that she can't use it and, 12 therefore, she can't help us use it. We haven't been able 13 to go to Washington to get trained to use it after 2:00 p.m.
/\ 14 JUDGE BECHHOEFER: There are many who don't like U
15 the way new documents work, so I might say all of these 16 things I have here came from new documents, but it wasn't 17 that easy to get them.
18 MS. CULVER: It's been a real struggle to get 19 access to everything we might need access to, and that's why 20 Jill has prepared the document she tried to give you, 21 because for us to try to continue to gather information is 22 ongoing. I mean, the deadline came and went, but we had 23 more things that we were trying to get a hold of.
24 Let's see. A couple of other details, the latest 25 document in the public document room here is dated 10/30/92, O ^"" ai'ev ^ ^ssoci^Tes' 'id.
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88 1 and the PDR does not have the current CFR public health O 2 regulations. And that's not the only document we found 3 missing, by the way, but that's certainly one that we needed 4 to give you some sense --
5 JUDGE BECHHOEFER: New documents are supposed to 6 be updated to within a day or two of whatever date you're 7 looking at. Whether that's always the caso, I don't know.
8 But, theoretically, it's supposed to be.
9 MS. CULVER: You could give Jill a scholarship to 10 send her to Washington because you've used that.
11 JUDGE BECHHOEFER: I have taken a couple of 12 courses on how to do new documents, and it isn't that easy.
13 JUDGE KLINE: But the rebuttal arguments that you 14 heard this morning really don't address the notion that you
)
15 haven't come forward with enough inspection reports. The 16 real issue is what do they mean, and one of the arguments-is 17 that internally the documents contain statements that don't 18 support what you're saying about them. In other words, if 19 the document says, " Hey, this was a Level 4 violation, it's 20 now all closed out to the satisfaction of staff," why is 21 there additional significance to be attributed to it? I 22 mean, it came to life, it got addressed, and it got put to 23 bed. Why is that not adequate in your view? That's the 24 thing you're going to have to try to address to us.
25 MS. ZAMEK: By the sheer number and repetitiveness l
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~
1 of them have produced a pattern that I've identified just 2 with the CFCU's, for instance, is one. Well, they were 3 violated for that -- they received violations for that, but 4 then, 2*0a know, a month later there's another problem with 5 it, et cetera, et cetera, et cetera. They keep recurring, 6 like I said. They don't go to the root causes to find their 7 problems. They find a missing bolt, oh, they just put the 8- new bolt back in. They're, well, they took care of that 9 problem, but they really didn't, because the bolt came out 10 for some other reason that they didn't look to, and that's 11 our contention.
12 JUDGE KLINE: Let me ask the Mothers for Peace, 13 one of the arguments that was pressed this morning is if you 14 take a specific document and in one paragraph it says these
(}
15 fellows are rascals and in the final conclusion it says but 16 after all, they're doing all right, and so the document 17 appears to contain contradictory statements, can we rely on 18 it, in your view, as a basis for an admission of a 19 contention when the document itself doesn't really support 20 unambiguously what you're claiming for?
21 MS. ZAMEK: I think when you get enough of those l
22 comments like I've been reading that it adds up to, yes, you 23 can use that as a basis for a contention. I don't know if l
24 it's appropriate to say right now, but maybe I'm feeling _a 25 little attacked, but, you know, I've heard comments that we O ^"" ai'ev $ ^ssoc'^Tes' 'id-Coud Reponers 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950 l
90 1 don't know what weaknesses mean and we-don't know how to 2- read these documents, but I'm not a lawyer and I'm not a 3 nuclear physicist, but I am an intelligent woman, and-I've 4 read these documents and I understand the documents, and I 5 war really impressed with how well they're written so that 6 people like myself can understand them, and where, you know, 7 previous to this I wouldn't have had the foggiest notion 8 what things were, they really explained the process of these 9 events and what happens first, and I think I do have a good 10 understanding, and I could see the significance of some of 11 these events. You know, and I always -- I see -- read these 12 comments about this problem, this problem, this problem, but 13 overall you say but overall its adequate. Well, you know, I
() 14 15 weigh them, too, and I look and see, but they said this, and that didn't sound very adequate, so --
16 JUDGE KLINE: Is it your intention, then, if the 17 contention were admitted, to make an evidentiary 18 presentation showing not just individual deficiencies, but l
19 something that would support an inference of a pattern of 20 deficiencies?
21 MS. ZAMEK: I can't say for sure what we would-do, 22 but I would think that we would get enough of these together 23 to show a pattern, that we would have enough time where we 24 could organize these and show a pattern even more so than we 25 have.
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-1 JUDGE BECHHOEFER: I have a question, one or.two 2 questions, actually, I'd like to ask the applicant.
3 Concerning one of the citations was to the enforcement 4 conference which was said, and the way I read Appendix C, I 5 guess it is, enforcement conferences are not normally held 6 for Level 4 violations, but -- and I'm quoting now, "they 7 may be scheduled if increased management attention is 8 warranted," end quote. That's right from Appendix C.
9 Now, did someone on the staff at least decide that 10 maybe increased management attention to the matters talked 11 about at the enforcement conference was warranted in order 12 to schedule a conference at all?
13 MR. REPKA: Obviously, to schedule a conference at 14 all, the NRC was considering the significance of an 15 individual event and had not yet made up its mind as tx) what 16 severity level to assign and what observations -- what 17 lessons are to be learned from the matter that was the 18 subject of the enforcement conference.
19 As I understand it, an enforcement conference is 20 not a preordained thing. The NRC does not know what 21 enforcement action is going to come out of it until after 22 the conference. That is the licensee's opportunity to 23 present what happened and its views on the significance of 24 that.
25 I just frankly don't think you can take comments O ANN HILEY & ASSOCIATES, Ltd.
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- 1 from an enforcement conference and say that somehow that
~' 2 has meaning here and that -- I mean, the enforcement 3 conference -- the results of the enforcement conference 4 are the important thing.
5 JUDGE BECHHoEFER: Well, the statements are made 6 under oath, are they not?
7 MR. REPKA: The statements are not made under oath 8 but, of course, any statement to the NRC is made to be true 9 and accurate in all material respects so, I mean, that's a 10 given. And in fact, the statements, I'm sure, were accurate 11 representations of what the individuals involved believe.
12 But those are -- again, are not necessarily related to 13 maintenance.
() 14 15 I think the particular ones we're talking about here as we pointed out in our papers really was not a 16 maintenance matter. That's number one. And number two, you 17 again have to look at the significance to the context of an 18 enforcement conference. The object of an enforcement 19 conference is to be self-critical,~to be self-analytical, to 20 show that you understand the root cause of the incident 21 that's being discussed, and to show that you're correcting 22 it, so in a sense those are statements against interests 23 that are now being used against us when the reality is that 24 the NRC decided it was not a safety significant violation 25 and that we've taken corrective actions to address whatever Q ANN RlLEY & ASSOCIATES, Ltd.
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93 1 in fact occurred, a 2 One other point. The enforcement conference was a. ;
l 3 good example in which initially the issue was operability of l 1
4 the equipment, and after reviewing the licensee's 5 presentation and the follow-up submittal en operability, the 6 NRC determined that operability was not in fact an issue and 7 didn't issue a violation of technical specifications, so 8 yes --
9 JUDGE BECHHOEFER: Well, was there not in fact a 10 maintenance problem that they did find there?
11 MR. REPKA: There was a maintenance problem.
12 There was a failure to use --
13 JUDGE BECHHOEFER: Well, isn't that what these 14 people were talking about, the maintenance problems and
(
15 problem and the --
16 MR. REPKA: Yes. But it is one operation 17 violation, a -- I mean, there is not a plant in this country 18 that does not have a, quote, pattern of violations and 19 inspection findings. That's, quite frankly, the nature of 20 the beast, and violations do occur, but, you know, this one
- 21 does not have programmatic significance, and taken all l
22 together, what's been offered does not add up to a pattern.
23 JUDGE BECHHOEFER: Does anyone -- I'm not sure we 24 need to go into every single allegation in Contention I, but 25 is there any comments on any specific allegation that the i
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94 i 1 Mothers for Peace would like to -- because we're just trying-O 2 to-debate whether -- how useful it would be to go over each 3 paragraph separately or not. We've heard quite a bit about 4 your general thrust, which is what-we were trying to get.
5 MS. BECKER: I have a comment to Judge Kline's 6 question about our going on with this proceeding if our 7 contention was admitted. We have already contacted expert 8 witnesses and sont them copies of our contentions, PG&E's 9 responses and the NRC's responses, so we don't intend to 10 only represent ourselves if a contention is allowed. Wo 11 have expert witnesses who would come forth, so it wouldn't 12 just be us bringing up more information. And then I have 13 two procedural questions.
14 JUDGE BECHilOEFER: Are any of those witnessas --
! 15 do you have their names that you'd like to provide or --
16 MS. BECKER: Not at the moment,-but they do --
17 they have testified in other NRC proceedings. They are 18 people who are qualified to be expert witnesses and have 19 been qualified by the NRC in the past.
20 And, secondly, I have two procedural questions 21 about this evening's public comment period.
22 JUDGE BECHHOEFER: Yes.
23 MS. BECKER: In the past with NRC and PUC -
24 _ proceedings that have been held in San Luis Obispo, there's 25 been a sign-up table in the back so --
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95 1 JUDGE BECHHOEFER: I left a sheet of yellow paper.
2 JUDGE SHON: It's in the front today.
3 MS. BECKER: Well, gee, no wonder nobody saw it.
4 JUDGE BECHHOEFER: I'm sorry, I should have 5 mentioned that. I put a yellow sheet of paper, and that's 6 about as good as any.
7 MS. BECKER: If there could be one of these other 8 tiny, little tables out in the hallway that said " Sign-up 9 sheet," I think people would know that it existed, because 10 we realized that -- we received a fax that members of a 11 group called Citizens for Adequate Energy, which is a group 12 --
13 JUDGE BECHHOEFER: We received those fax --
14 MS. BECKER: -- that it obviously opposed what
}
l 15 we're here for will be here to speak, and we want to make 16 sure that there's other people who will be able to sign up.
17 And secondly --
18 JUDGE BECHHOEFER: Well, we're going to make an 19 attempt to hear everybody.
20 MS. BECKER: Good luck.
21 JUDGE BECHHOEFER: Whether there will be enough 22 time or not, I don't know, but we will not do it necessarily 23 just for people from a single group, but we'll try to mix it 24 up a little bit and, if necessary, we might even be back l
l 25 here tomorrow for the same purpose, but I'm not sure.
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96 gg 1 MS. BECKER: If additional partins want to file 2 to the service list, can that be done today? Is there a-3 forum --
4 JUDGE BECHHOEFER: Well, a service list, that's a 5 problem. I don't think parties normally can get put on a 6 service list, at least in terms of obligations of the 7 party's here to serve them.
8 occasionally, we have allowed certain groups to be 9 put on the service list. We put -- we did put on the 10 service list two groups. One, I think, is the Public 11 Utility Commission, and another was another group I have 12 back here someplace when they wrote in and requested it, 13 but I don't think we would do that as an unlimited.
() 14 15 MS. BECKER: There's a Ratepayers Advocate Group that's interested in this that represent ratepayers, and 16 they wanted to be added to the service list. I will ask 17 them to write on their own stationery-to you? Is that the 18 procedure?
19 MR. REPKA: Judge Bechhoefer, from our l 20 perspective --
21 JUDGE BECHHOEFER: There was one group that wrote l
22 in that I permitted, and the Public Utility Commission wrote 23 fn for two people, and I told the secretary to put two 24 names, but one address, on the list and just send one copy, 25 but the --
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97 1 MR. REPKA: We have no objection to adding 9 2 courtesy copies to our service list in the proceeding.
3 That's not in issue here. As far as our technical service 4 list, the documents, the NRC, LER's, things like that, the 5 petitioners are already on that list, and I believe the 6 group in the Bay Area is, also, so we would certainly add to 7 our version of the service list.
8 MS. BECKER: Maybe I'll just speak to PG&E and _
9 make sure it's the same group. That's fine.
10 JUDGE BECHHOEFER: Right. For that kind of thing, 3 11 you know -- but parties most often just have to serve other 12 parties, plus documents for the secretary and that kind of 13 thing. But we don't want to require parties to have too 14 much added expense. Because if 3 groups wrote in and they 15 were all on the service list, I don't know -- technically, I 16 quess our secretary would have to serve them. Now, in the 17 past -- and I don't know if thic is the case now -- people -
18 who -- I think it probably isn't the case now. People would 19 be mailed a copy of the final decision on the service list.
20 I don't even think that happens now. It gets put in the 21 public document. It has nothing to do with -- I mean, 22 parties get mailed copies of any findings -- any decisions 23 we make, but I'm not sure that everybody who signs up for an 24 appearance statement tonight is going to get a copy of 25 whatever our decision is except to the public documents, but g ANN RILEY & ASSOCIATES, Ltd.
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98 1 technically, I'm just not sure how some of these things O 2 work. I know the commission has had to cut back for expense 3 reasons. Everybody's budget is under fire these days.
4 MS. ZAMEK: Could I -- I'm sorry.
5 JUDGE BECHHOEFER: Anyway, are there further 6 comments on anything in Contention I?
7 MS. ZAMEK: I do --
8 JUDGE BECHHOEFER: I think we're going to break 9 for lunch after that.
10 MS. ZAMEK: I do have one comment, and it has to 11 do with really semantics. In Contention --
12 JUDGE BECHHOEFER: This is just I.
13 MS. ZAMEK: Pardon?
14 JUDGE BECHHOEFER: This is just Contention I.
)
15 MS, ZAMEK: Right. In Contention I on --
16 JUDGE BECHHOEFER: Because we'll get to the others 17 after lunch.
18 MS. ZAMEK: On page 7, it was written, the Mothers 19 for Peace wrote, in fact, "NRC has repeatedly cited PG&E for 20 slow response to maintenance problems," and et cetera. And 21 it received a great deal of criticism, because two LER's 22 were cited and, of course, that wasn't NRC criticizing them, 23 and it was really a matter of semantics. It should have 24 been more like evidence shows repeated slow response, et 25 cetera, et cetera, but -- and then again, I've used that --
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l 99 1 criticized by the NRC when I used an LER, so -- but I still
.O 2 -- and so that kind of -- that evidence was kind of thrown 3 out by the NRC Staff because of that error, when in 4 actuality that evidence, I think the crux of the evidence is 5 still pertinent. And whether it was an LER or a notice of 6 violation or inspection report, whatever it is, if it shows 7 that there is a problem, I think that it should be 8 considered.
9 JUDGE BECHHOEFER: And, of course, the LER is the 10 applicant's --
11 MS, ZAMEK: PG&E, right, but it's still better 12 when they admit that there's a problem. It still, I think, 13 can be admitted for evidence; isn't that true?
14 MR. REPKA: But I would point out that some of
)
15 these LER's were voluntary LER's, and if the LER didn't 16 result in an NRC inspection -- or enforcement action, that's 17 just a further indication of the lack of significance of 18 what was involved.
19 JUDGE BECHHOEFER: Purely technically on that same 20 page, I think the inspection that you referred to should 21 have been March 17th through April 27 technically, but --
22 May 12 is the day the letter was written.
23 MS. ZAMEK: oh, and I'm supposed to put the whole 24 --
25 JUDGE BECHHOEFER: I'm just --
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. ,r- 1 MS. ZAMEK: And I noticed, too, there were two 2 mistakes in one LER number was wrong, one inspection report 3 number was wrong. That was a typo.
4 JUDGE BECHHOEFER: There was one other one where 5 the date was ten days off, which makes a big difference if 6 you use new documents.
7 MS. HODGDON: It was August the -- they said 8 August the 3rd. It should have been the 13th.
9 JUDGE BECHHOEFER: Right.
10 MS. ZAMEK: Sorry.
11 JUDGE BECHHOEFER: And if you use the new 12 documents, that's crucial, because you plug in a date and 13 you plug in a docket number, and theoretically it all will
() 14 15 come up, but --
MS. HODGDON: There was another one where they 16 said '91 -- '92 and it should have said '91.
17 MS, ZAMEK: I caught that.
18 MS. HODGDON: If I could speak, I don't want to 19 interrupt, but as long as we're making corrections here, 20 just to make these comprehensible, in the-Staff's response 21 on page 13 where there's a superscript 7. That's wrong, of 22 course. -Somehow or other, it got up there. It should 23 be -- instead of where it is on the third line on page 13, 24 it should be at the third line under " Containment fan cooler 25 units" at the end of that sentence. That first sentence, it O ^"" aev $ Associates' 'ta-Coud Reponers 1612 K. . Street, N.W., Suite 300 Washington, D. C 20006 (202) 293-3950
101 1 should say, "is an enforcement conference report superscript t
2 7," because footnote 7 goes to that and not to the -- where 3 it's indicated.
4 Also, there are three or four lines missing 5 between 12 and 13, but I won't bother to put those in, 6 because they're just a characterization of the petitioner's 7 pleading, and I just don't want to take up everybody's time 8 with that. The 7 is important, because you can't understand 9 it without that. It's wrong. The other thing is just not 10 important, so I'll skip over that.
11 JUDGE BECHHOEFER: Okay. Is there anything else 12 on Contention I? Because I think we'll adjourn, then, for 13 lunch and come back and start with Contention II.
I
() 14 15 Okay. Off the record.
(Whereupon, at 12:29 p.m., the prehearing was F
16 recessed for lunch to reconvene at 1:30 p.m. this same day.)
17 18 19 20 21 22 23 24 25 l
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i 102 1 AFTERNOON SESSION 2 (1:48 p.m.)
3 JUDGE BECHHOEFER: Back on the record.
4 I guess we'll now proceed to Contention Roman II.
5 And ask the Mothers for Peace whether they have any 6 additional statements they wish to make.
7 One question I have, though, is to what extent --
8 and in your statement you could respond to this. To what 9 extent do these matters list incidents or the events listed 10 relate to the maintenance program which is mentioned in the 11 last paragraph of the contention? And, of course, we spent 12 a long time talking earlier about that maintenance, but I 13 wanted to see how much of this could be related to the 14 maintenance program which is apparently the conclusory
[}
15 paragraph of the contention.
16 So in addressing this contention, you may wish to 17 talk about that, too.
18 MS. ZAMEK: Okay. I'll do that now while I 19 remember. Where I say " Maintenance program must rely on 20 experienced, qualified workers"? Is that what you're 21 referring to?
22 JUDGE BECHHOEFER: Yes. And to what extent do any 23 of these examples involve either the maintenance program or 24 something related to the maintenance program? That's what I 25 was trying to figure out.
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103 1 MS. ZAMEK: Right. I think primarily this O 2 contention just referred to personnel errors, because even 3 though they have plans in place for maintenance and 4 surveillance and all these programs that they have, this 5 contention shows -- the evidence contention shows that 6 oftentimes these procedures aren't followed, which is what 7 gets them into so much trouble, and despite corrective 8 measures where they have, you know, training programs and 9 get talked to, they repeat these errors. Maybe not the same 10 people, but other members, and these things just keep 11 happening.
12 I know on one of the contentions, this fellow 13 wasn't going to follow it because he thought he would save 14 time, and he ended up with this chemical mist. There's just 15 numerous examples of sloppy work, and the way it ties in is 16 it negatively affects the maintenance program. That's how 17 it ties in.
18 If you ask if I want to say anything else, of 19 course, I have a lot more evidence that I could quote a few 20 more, if that's allowed, I'd like to say more -- I-have some 21 SALP report comments, et cetera.
22 JUDGE BECHHOEFER: Yes. In terms of not accepting 23 a contention, you probably should not mention anything that 24 wasn't mentioned earlier.
25 MS. ZAMEK: In the original contention?
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104 1 JUDGE BECHHOEFER: Well, in the version that we're 2 ruling on. The --
3 MS. ZAMEK: Okay 4 JUDGE BECHHOEFER: The October, I think it was.
5 MS. HODGDON: 26th.
6 JUDGE BECHHOEFER: October 26th, I guess --
7 anyway, that's the statement that everybody's had a chance 8 to comment on.
9 MS. ZAMEK: Okay.
10 JUDGE BECHHOEFER: -- and respond to, so --
11 MS. ZAMEK: Okay. Well, I would like to say that 12 I know that the NRC Staff commented that our -- that, again, 13 our cites were also isolated incidents that inevitably 14 occur, et cetera, et cetera, and I really believe there's no
)
15 basis for that claim, because we have shown that there are 16 personnel problems and that they're recurring and that 17 they're pervasive, and the high number of them show that 18 this is something that's persisted. Well, it has persisted.
19 It's persisted in the past and will continue in the future, 20 and-that corrective measures have been ineffective. And 21 does anybody else want to add anything on that?
22 Okay.
23 JUDGE BECHHOEFER: Is the major focus of your 24 problems or worries _about personnel, the maintenance 25 program, or other areas as well? Because you seem to have ANN RILEY & ASSOCIATES, Ltd.
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1 105 1 tied it to the maintenance program, and that could be useful O 2 or -- I mean, it could be supplomontary to what you said in i 3 Contention I or it could be something broader, and there may 4 be differing ba. sos for considering it in those context.
5 Jill, my interest in the personnel performance is t 6 the trend of personnel errors reflects a degradation of safo 7 operation at the plant, because had they made mistakes, the i
1 operation of the plant suffers nftontinos. And we're 9 interested in safe oporation, of courso.
10 MS. BECKER: I bo11ovo in additJon, Judge 11 Bochhoofor, that the possible lack of trained personnel in 12 the future when you're adding 13 to 15 years of life on to 13 this plant, could be at issue. We road a number of 14 documents. Unfortunately, they're newspaper articles, but ,
15 4 ting that peoplo -- now peoplo going into the nuclear 16 . !stry are bo 'ing fewer and fewer and the availability 17 of trained personnel when you're adding on to a lifetime of 18 a plant could 'x ':ome a problem in those lator years.
19 JUDGE BEclil10EFER: Well, do you have any 20 indication, for instanco, that if they did not have 21 odoquately trained personnel, staff would just shut down the 22 operation for reasons of that sort?
23 MS. BECKER: Do I have any information to the 24 contrary?
e 25 JUDGE PECillioEFER: Right.
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106 1 MS. BECKER No. No, I don't.
O 2 MS. ZAMEK Well, there are some cases cited here 3 that show that they use untrained, uncertified workers for 4 jobs that they shouldn't be doing. You know, they just 5 grab -- it's like they just grab somebody and say, "Here, do 6 this," and that's been the problem in some of the instances.
7 JUDGE BECHHOEFER: Okay. Mr. -- '
8 MR. REPKA: A number of commelats, first, I think 9 on the personnel area there's a. fundamental legal issue 10 regarding the scope of the proceeding. The technical 11 qualifications of the licensee were in issue in the original 12 licensing of the plant. And we do not believe that it 13 should be in issue here again. The fact is, thin is not a
(} 14 15 new license. It's not in the initial licensing proceeding.
So 1 don't think we can just leap, as I sali earlier today, ,
16 into a conclusion that everything that might have been 17 admissible as a subject matter in the initial licensing case 18 would again be admissible here, so technical qualifications 19 are in no way changed by the amendment at issue. There's no 20 change to our training programs. No change to our ability 21 to manage and address personnel errors. It's simply outside 22 the scope of this proceeding.
23 JUDGE BECHHOEFER: Well, are you saying that if 24 the examples were to show that personnel were rather 25 routinely unqualified to do what they were supposed t- do O ^"" aev a Associ^Tes' 'id-Coud Reponers 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
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107 2 and there were many personnel errors, that that can't be '
O 2 taken into account in determining whether you should have 1
{
3 another 10 or 15 years or 12 or 15 years? Is that what l 1
4 you're telling me?
5 MR. REPKA That's precisely what I'm saying. And i 6 it's not that it won't be taken into account. It's not in 7 the jurisdiction of this Board. The 11RC Staff ultimately 8 will issue this amendment. It's the liRC Staff who has to 9 make that call. It's an implomontation issue. It's one 10 that they will address in their review. It would not be 11 ignored. But it's outside the scope of the amendment; 12 therefore, it's fundamentally outside the scope of this 13 proceeding. That's point number one, the basic legal point.
14 I don't think we can just set aside in looking at this issue 15 or any of the issues.
16 The second point is, is we're talking more 17 about --
18 JUDGE BECilllOEFER: Well, are you 1100 saying that 19 2.206 is the sole remedy for issues of this type? Because I 20 believe there's considerable authority in the past saying 21 2.205 -- even though 2.206 may be available, it doesn't 22 preclude a contention in a licensine, context. In many cases 23 where it was done where a contention could have been j 24 admitted either way, of course, there's no judicial or even 25 Commission review of the 2.206 determination. That's solely l
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108 1 a staff operation now with very limited exceptions for --
MR. REPEA:
2 I'm saying that 2.206 is the available 3 forum just like it is for any implonentation operational 4 issue af'ac he initial license is issued. That's the case.
5 How, it's not 2.206 that says -- it's not the availability 6 of 2.206 that determines the jurisdiction of this Board one 7 way or the other. The fact is, 2.206 is an available forum.
8 What determines the jurisdiction of this Board in the 9 auendment.
10 JUDGE BECHHOEFER: Well, in it even a forum? I 11 moan, 2.206 doesn't offer anything in the way of hearing 12 rights 13 MR. REPKA: Well, there are many, many things that 14 go on in the operation of a nuclear power plant that are not 15 subject to hearing rights. That's the fundamental tenor of 16 the Atomic Energy Act. The hearing rights available are 17 defined by section 189 and they're triggered by certain 18 licensing events, and in this case, broadly speaking, it's 19 an amendment, but it is the scope of that amendment that 20 definen the hearing rights. And this amendment does nothing 21 regarding technical qualifications, it does nothing 22 regarding training, and it does nothing regarding personnel 23 errors. That's the fundamental legal point, point number
- . 24 one.
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109 1 isolated occurrences, isolated events. The petitioners 2 again talk about large numbers and pervasiveness and 3 qualitative terminology of the like. And there's simply no 4 basis for that. If there was such a pattern, if thoro was 5 such a pervasive pattern, the NRC Staff would have said so, 6 but in contrast to that, the NRC Staff has said this is a 7 Category 1, excellent plant in plant operations. This is 8 one of the five best operated nuclear plants in the country.
9 lt's simply inconceivable to me or to the company that such 10 a pervasive pattern could exist and the NRC Staff could find 11 that this is in fact one of the elite, one of the few 12 nuclear plants in the country vorthy of a commendation.
13 If a few isolated events, personnel errors --
( 14 personnel errors occur everywhere. The plant is designed to 15 accommodate a certain amount of personnel errors. All of 16 the personnel errors at issue here have been determined to 17 be insignificant. They've been corrected, they are being 18 addressed, problematically and otherwise.
19 JUDGE BECHHOLPER: Again --
20 MR. REPKA: if I could just complete my thought 21 JUDGE BECHHOEl'ER: Okay.
22 MR. REPKA: If four or five events could entablish 23 hearing rights in this context for one of the few best 24 plants in the country, there would be hearing rights in 25 overy single case of this type, and I think that's a result O ANN RILEY & ASSOCIATES, Ltd.
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110 1 --
O 2 JUDGE BEClil10EFER: Well, is that not the case?
3 MR. REPKA: That is not the case.
4 JUDGE BECHil0EFER: There have only been two that 5 have been challenged. A hearing doesn't take place unless 6 somebody asks for a hearing. And that hasn't happened, but 7 that's fortuitous.
8 MR. REPKA: I submit that that could not be the 9 case. I mean, there's simply no basis for that, and it 10 would mock the Commission's new revised thresholds on 11 admissibility of contentions.
12 JUDGE BECillI0EFER: Well, to me, if enough 13 personnel errors would be pointed out that and each one of 14 those is a basis for -- or a portion of the basis for the 15 contention, and if enough of them occur, maybe the plant 16 should not be continued. Maybe the operation of the plant 17 should not be continued. Maybe -- that to me is an 18 evidentiary question. I'm not saying that you could_tell by_
19 looking at them that they're, per se, trivial.
20 MR. REPKA: Two answers to that.
21 JUDGE BECH!iO"FER: You can't look at each one of 22 these and say, "Oh, that's per se, it's trivial," and you 23 get another one, that's trivial. At some point there's a 24 breaking point when it isn't trivial.
25 MR. REPKA: Well, there's two answers to that.
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111 1 One, it's fundamentally outside the scope of the proceeding, 2 again, i>ecause there's no change here.
3 JUDGE BECHilOEFER: Well, the scope of the 4 proceeding is essentially going to be what we say it is, 5 because there isn't much precedent. There are some general 6 guidelines.
7 MR. REPKA: My opinion is that it should be 8 outside the scope of the procedure.
9 And number two is that even though you could 10 hypothetically say there is some number which it would arise 11 to a problem, we definitely have not reached that here in 12 light of the evidence that's been offered, in light of the 13 status of the plant, in light of all the other objective 14 indicia of performance that we've talked about this morning.
(
15 That's a basis -- as a basic threshold argument on 16 admissibility of contentions, it just simply has not come to 17 that point.
18 Now, I'm not even willing to concede that there is 19 some number of personnel errors that would rise to the 20 admissibility of a contention, but I don't think we naed to 21 reach that. We're just not even close to that in this 22 context, the context of this plant.
23 MS. ZAMEK: Can I make one comment here? My 24 understanding is that the scope of this proceeding is to 25 find out whether Diablo Canyon Nuclear Power Plant can C ANN RILEY & ASSOCIATES, Ltd.
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112 1 operate safely in the years of the recapture period, and so O 2 it seems to me that any issue that questions that would be 3 admissible. That's how I understood it.
4 JUDGE BECHHOEFERt I'm not sure it's not a little 5 more limited. Certainly issues which have been resolved or 6 which were open for resolution earlier, certainly, absent 7 new information, those probably would not be, but without 8 coming to any definite conclusion on the subject, but if 9 something is based on new information or new events, then, 10 of course, overything -- I won't say whether what you cited 11 is enough or not enough, but everything you've cited is 12 beyond the period they could have been taken into account 13 earlier. So whether that changes anything or not would be up for us to decido to determine that contention.
() 14 15 Ct.rta!.nly a reiteration of what was already 16 decided would 'arobably not be permissible in a proceeding 17 like thia. Again, we haven't made any definite conclusions 18 here, so --
19 ?UDGE SHoN: I'm going to ask Mr. -- Mr. Repka, 20 I'd like you to focus your attention on the paragraph from 21 page 16 to 17 of the supplemental petition, starting 22 "Furthermore, as the plant ages."
23 It seems to me that this is quito a different kind 24 of argument from what we've heard so far. This is the sort 25 of thing that says, look, in 25 years or so, just about the ANN RILEY & ASSOCIATES, Ltd.
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113 1 time this thing is in effect, the extension would be in O 2 effect, you're going to be even shorter of good people than 3 you are now. Now, doesn't that seem to be exactly the kind 4 of contention, if it's at all supported -- I recognize that 5 they've only cited a newspaper article in effect. But ,
6 docan't that seem to be exactly the kind of contention that 7 we should be considering because it says look, this is the 8 time period in which you are going to extend the license and 9 it's a time period in which you are going to get even 10 shorter of good people?
11 MR. REPKA: I agree at the threshold with tho 12 concept that any contention clearly has to relate to the 13 time period in issue here. There has to be a nexus. And
(} 14 15 this is the kind of concern that does have a nexus to the time period.
16 But going beyond that, I would say first that 17 again this is an issue down the road that is really an issue la for the NRC Staff to monitor compliance and to monitor 19 continued technical qualifications of the licensee during 20 the licensed period. That is the basic function of the 21 inspection and enforcement program is once a license issues, 22 to make sure that the licensee continues to comply with its 23 obligations under the license.
24 So I'm saying, number one, that concern is really 25 a Staff concern to be monitored and, of course, the licensee O ^"" aEv * ^SSoci^TES' 'td-Coud Repoders 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293 3950
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1 concerned.
O 2 And number two, it completely fails -- even if you 3 get beyond that, it completely fails for a lack of basis.
4 It's a speculative kind of argument. There's no -- nothing 5 asserted to the fact that if we did not have qualified 6 people, that we would continue to operate. The fact is, the 7 company recognizes it needs qualified people to -- qualified 8 and trained people to run a nuclear power plant, and that's 9 a truism, and there's no basis to believe we would act 10 otherwise.
11 JUDGE SHoN: Well, I think your first objection to 12 it, that is, the notion that in effect the staff is watching 13 and won't let anything happen could be used to vitiate 14 anything. I mean, even if they had como up with the fact 15 that the "statisfracistat" always falls in 15 years, you'd 16 say, well, this staff is watching and it doesn't matter, 17 because even if it fails, we'll take care of it then, having 18 come in so early for your -- with your application, you can
! 19 always say, "oh, by that time we'll have taken care of it,"
20 couldn't you?
21 MR. REPKA: It doesn't matter when we came in, 22 because in either event, it's a matter for the Staff. It's 23 a post-licensing kind of issue. It's a post-licensing --
24 the initial license for this plant is the operating license, .
l 25 and everything that transpires after that point is subject l
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I 115 1 to NRC Staff inspection and enforcement. And this is not a O 2 repeat of the initial licensing proceeding, and I -- it's 3 just e fundamental scope of the proceeding issue.
4 JUDGE SHoN: But if this is true and that 5 overything is always being watched perfectly well, then 6 could there be any conceivable sort of contention that one 7 could propound that would suggest trouble in a few years 8 because one could always say, "Oh, no, we'll catch it"?
9 MR. REPKA: Well, I think we'd know it if we see 10 it. I don't think we have seen it yet. I go back to what 11 the commissioner said in the license renewal rule. They 12 limited a hearing in a license renewal context to a very 13 limited context to age related degradation unique to the 14 renewal period and to unique and new environmental issues to
}
15 the fact that the operation would go beyond what was 16 previously analyzed. There's nothing in there about 17 personnel errors. There's nothing in there about 18 maintenance practices or hazardous materials and other kinds 19 of things. It's not conceivable to me that the Commission 20 would require a much more broad hearing on an amendment that 21 simply conforms the license to the initial design basis of 22 the plant than it does on license renewal that goes beyond 23 the design basis. It's a fundamental disconnect. I don't 24 think any of this stuff should be subject to a hearing here.
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116 1 what you said for thir kind of proceeding in the question -
2 not whether they required it, but whether they would permit 3 it given the current rules, and having not taken steps to 4 reduce the scope of these hearings as they have done for 5 renewals, aren't we left with what otherwise would have been 6 the scope of --
7 JUDGE S}lollt It seems as if, Hr. Repka, you've 8 told us now that the Commission was silent on how early you 9 could or could not come in in this matter, but spoke on it 10 for licensing renewal, and we can't assume that there's any 11 parallel. When it comes around to this matter, you say, 12 well, you know, they're silent on it and spoke on licensing 13 renewal and we ought to take that as a paragon, as a model.
14 MR. REPKA: Well, I think it is a model. I think 15 it's an analogy, and clearly there's no precedent on the 16 point of what the scope of this proceeding is, but it's a 17 matter of what the Commission should permit, and it simply ,
18 makes no sense to allow a complete new licensing hearing at 19 the CP recapture stage on all of the issues that were 20 previously subject to hearing or that are routino 21 implementation matters It simply makes no sense. I 22 JUDGE KLINE: No. I think it's clear that the 23 licensing scheme does not contemplate open-ended hearing 24 opportunities. That is to say, after the initial operating 25 license is granted, there clearly is no opportunity -- no-O ^"" ai'ev a Associ^Tes' 'id-Court Reporters 1612 K. Street, N.W., Suite 300 Washington, D, C. 20006 (202) 293 3950 i
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117 1 remaining opportunity to scrutinize that operation in a O 2 hearing, say on a year-to-year basis or on a continuing 'i 3 basis, but isn't the fact that when the Commission opens the ;
4 door, creates an opportunity for hearing, that it's entitled j 5 to some deference; that is, it's entitled to some respect 6 respect. It is not just an empty opportunity.
7 Now, I understand the argument of nexus, i.e., to 8 the extended period. But why -- I don't understand why, 9 given that there is no a priori Commission policy or rule 10 that precludes it why any issue that has such a nexus to the 11 extension period -- not to the common operations in the 12 existing licensing period, but if it has a nexus to the 13 extended period and an opportunity for hearing is granted, 14 that creates the opportunity to scrutinize that period that
)
15 otherwise doesn't exist. It opened the door. And why --
16 and I don't understand how we can, under your theory, treat 17 this cpportunity with respect if there doesn't appear tn be -
18 anything that we can scrutinize in that period under your 19 theory.
20 MR. REPKA: Well, I think we've said --
21 JUDGE KLINE: Given that we have an operating 22 license.
23 MR. REPKA: I think we said this morning or just 24 now that the issue of the availability in the year 2025 of 25 qualified personnel -- that's an issue that has nexus but i
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118 1 it's lacking in basis.
2 It's really the fundamental scope of the 3 amendment, and the fact that this plant has been designed 4 and analyzed for 40 years of operation, and the fact that 5 the amendment doesn't change anything. If nothing's being 6 changed about the operation of the plant, then what is there 7 that is subject to litigation? It would have to be 8 something that's unique to the period that's involved, and _
9 the petitioners just haven't offered anything along those 10 lines.
11 JUDGE KLINE: But is there any alternative 12 opportunity to even try to make a case for something 13 happening in the extension period other than by scrutinizing
/ 14 current operation? That is, ev6n if there was no remedy in 15 current operations, how is it possible even in principle to 16 exercise an opportunity for a hearing if it can't take 17 account of current operations as are relevant to future 18 operations?
19 MR. REPKA: Again, you have to assume that the 20 scope of the proceeding would allow that, and I'm not going 21 to concede that it would. But, number two, that's a basis 22 issue --
23 JUDGE KLINE: Yes.
24 MR. REPla: And yes, current operations could form 25 the basis, but the fact is, the petitioners haven't shown Q ANN RlLEY & ASSOCIATES, Ltd.
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119 1 it.
O 2 JUDGE KLINE: Okay. 1 3 MR. REPKA: They've shown us a few isolated 4 incidents in contrast to the facts that the NRC Staff -- the 5 authors of the same documents that they've alluded to have 6 not found any such problem.
7 JUDGE KLINE: I understand your argument that in 8 fact it hasn't been accomplished, but at least in principle 9 do you agree that if any basis is to be shown for future 10 operations, it sort of has to come from experience from 11 what's happening now?
12 MR. REPFA: I think, again, if you assume it's 13 within the scope of the proceeding --
14 JUc E KLINE: Yes.
15 MR. REPKA: -- yes, of course, it has to come from 16 current operations, and this is precisely why we refer you 17 to our Category 1 excellent ratings for plant operations.
18 JUDGE KLINE: Sure. Okay.
19 JUDGE BECHHOEFER: Miss Hodgdon. Comments on II?
20 MS. HODGDON: I believe we've said everything that 21 we want to cay about this contention in our response and l
22 that we don't have anything to add on Contention II.
23 JUDGE BECHHOEFER: Any further comments on II?
24 Because we're about to go on to III.
25 MS. VON.RUDEN: I have a question.
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l 120 1 JUDGE BECHHOEFER: Pardon me? l O 2 MS. VON RUDEN: I have one quick question.
3 I wanted to ask the utility -- I know that they 4 have a drug program for their employees and I know they have b an employeo -- I believe they call it that employee 6 enhancement program. My question is, were these mandated or -
7 did those programs grow out of personnel problems that 8 demanded that you have programs?
I 9 MR. REPKA: I don't understand the basis or the .
10 relevance of the question. I think if there's a question 11 about procedure, bring it up after the hearing, and we'll be 12 glad to talk about it.
13 MS. VON RUDEN: Not relevant, huh? Okay.
14 MS. ZAMEK: I was wondering if anybody had the 15 SALP -- if you had the SALP report you're referring to, 16 because I was looking at mine and I didn't son a category 17 for a number for the personnel.
18 MR. REPKA: I'm referring here to plant 19 operations. The basic category for how well the plant is 20 operated.
21 MS. ZAMEK: I see, because then there's also on 22 for maintenance and surveillance which is two, improving, it 23 says.
24 MR. REPKA: Yes. We talked about that earlier 25 this morning.
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121 p 1 JUDGE BECllll0EFER: Someplace around here I had a i
2 chart this showed the SALP ratings pretty far back since 3 when they started operation, but --
4 MS. ZAMEK: Well, perhaps I could read from that 5 SALP report since it's rather enlightening.
6 JUDGE BECllllOEFER: No. This is not a SALP report.
7 This is a summary of numbers. I was just looking for it. I B wrote out the NUREG number earlier, but -- --
9 This is taken from something called NUREG 1214, 10 1214, revision 10, August '92. All it is is the summary of 11 various reactors, Diablo in particular, but what the SALP 12 rating for various areas have been. I don't know if you 13 have any problem in these areas. I've been referring to it.
14 It's just a summary of numbers.
15 MR. REPKA: Okay. We don't need to see that.
16 JUDGE DEClll10EFER: Pardon?
17 MR. REPKA: We don't really need to see that right 18 now.
19 JUDGE DECilllOEFER: I mean, I have no -- but it 20 doesn't say anything about reasons. This is just a summary, 21 listing of what the ratings for every reactor are. I've 22 Xeroxed out the Diablo Canyon one. The reference is new 23 NUREG 1214, N-U-R-E-G, dash, 1214. Most of the public 24 document rooms would have copies of that, but I'm not sure 25 if this one would or not. And this is revision 10. They O ANN RlLEY & ASSOCIATES, Ltd.
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122 1 come out every year or so.
2 All right. In anybody wants to look this over 3 later, they're welcome to. It's just -- it doesn't say very 4 much except a summary of numbers that have actually occurred 5 plus the introduction which says what it is.
6 I guess we'll go on to number III. This is the 7 one on fraudulently certified components.
8 Now, on this 7ne, we want any further statements 9 first from the Mothers for Peace, but the applicants have 10 raised the question that they caught the only onc of these 11 that involved them and successfully brought that to the 12 attention, I guess, to the Staff, but also the other 13 authorities. And that the people, I guess, eventually 14 wereconvicted of -- it's my impression at least, and that 15 was the only one occasion that was pointed to that 16 specifically related to Diablo, and my question is, what's 17 vrong with the program that they have that could cause us 18 perhaps to accept a contention on the subject? In 19 addressing this, you may wish to -- because it is a general 20 problem, but specifically for Diablo, why is it a problem --
21 why is it a specific problem for Diablo?
22 MS. ZAMEK: I agree that it's a problem for 23 everybody. And the contention is more than just fraudulent 24 parts. It's more like how to detect that and also how to 25 acquire quality parts, because the industry is facing more Q ANN RILEY & ASSOCIATES, Ltd.
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123 l 1 and more problems with that issue. And I know that there O 2 was more than one -- all of those ones that I cited the l
3 information from the -- the information noticos from the 4 NRc, I believe those all affect Diablo canyon Nuclear Power ,
5 Plant, because a lot of these they don't know they have in 6 there. They've already installed them unknowingly. It's 7 just that as we discover these, you know, there's 8 information notices that are put out, but there may be a lot 9 of them in that they don't even know about. That's one way.
10 Now, I'm trying to find one -- I know they 11 mentioned here about their program, because the could be 12 contention is also about their program and how they protect 13 against fraudulent parts, and one common inspection, 91-39, 14 where they had concerns about the three years' time lapso JS between, you know, betwoon contacting their quality vendors 16 and they were concerned about that, but I think the most 17 serious one was the sixth emergency generator. They had a 18 serious problem with their audit system where they should ,
19 have identified it in 1989, and yet they procured a sixth 20 cmergency generator, I believe it was, in 1992. And they 21 have to now verify that it is okay, and I know that's come-22 up several times, and with all this going on, I haven't seen 23 that there's - that they've done a very good job. They got 24 a lot of criticism for that one. They went a couple years l
25 without noticing that.
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1 I did find, also, in my reading they have this O 2 vibration of loose parts monitoring equipment, and they 3 didn't fix it since 1987, because they couldn't find a 4 replacement part. So they just -- it just didn't work. ;
5 And in April 1992, there was a management mooting i 6 discussing the quality assurance procurement audit process 7 because of that sixth emergency diesel generator, and they D raised questions about the QA, ability to identify 9 significant problems in it. So what I would like is 10 assurance that they have resolved this problem that they 11 havo there in their procurement process.
12 I also noticed a shoor pinion key on 13 September 16th, 1991. The key material was considered 14 outdated but still acceptable according to the vendor, but 15 they were having problems with it. It's in the plant.
16 Whether it's boon identified yet or not, it gradually does 17 becomo identified.
18 JUDGE BECHHoEFER: Mr. Ropka?
19 MR. REPKA: To say that the industry and PG&E are 20 concerned about procurement of quality parts and the 21 detection of fraudulent parts is simply a truism. The fact 22 of the matter is we are and we devote substantial attention 23 to precisely that issue. There's just no basis here to show 24 that there's a concern with the programs in place at Diablo 25 Canyon and there's no specificity to the contention to state Q ANN RlLEY & ASSOCIATES, Ltd.
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125 f-~ 1 what that concern might be. It's simply speculative and k' 2 untrue. Again, we're hearing where maybe an isolated 3 incident or some specific problem which I can't respond to 4 because we haven't heard all these before --
5 JUDGE BECHHOEFER: The four they mentioned or I 6 think they mentioned are in there.
7 MR. REPEAT Well, let me refer to my own B inspection report here, NRC inspection report that they have 9 not referred to. It's IR 91-201, dated July 22nd, 1991.
10 This was documentation of NRC Staff general assessment of 11 procurement and commercial grade dedication programs at 12 Diablo Canyon. I quote page 10 where the NRC Staff 13 concluded the receipt inspection programs to detect, report, 14 and disposition of fraudulent parts appeared adequate. At
(}
15 page 14, the NRC Staff concluded PG&E's achievements in the 16 area of review and implementation of NUMARC, that's the 17 Nuclear Utility Management and Resources Counsel, 18 comprehensive procurement initiatives was excellent and the.
19 quality, experience level, altitude, dedication of its 20 personnel was evident. The cover letter to that same 21 inspection report. The program, if properly implemented, 22 should provide adequate control over the commercial grade 23 procurement process. This is a fairly recent programmatic 24 NRC inspection, and I think this belies any individual kinds 25 of problems that the petitioners might cite, and absent O ^NN RlLEY & ASSOCIATES, Ltd.
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1 126 1 that, there's simply no basis and specificity for a ,
2 contention here.
l 3 JUDGE BECHHoEFER: Well, the basis in specificity ,
i 4 would be the specific incidents that they list. ,
5 MR. REPKAt Well, specificity requires more than a ,
6 list of specific incidents. It requires a concern. A 7 statement that something about the program is not working, 8 thoro has been no such statement. And, number two, there 9 would have to, of course, be a basis for that statement, and 10 there's no basis for that statement. Again, you have to 11 draw the noxus to that porlod, and the only way to do that 12 is to find the period of the recapture, and the only way to 13 do that is to show some programmatic problem, and that
() 14 15 clearly has not been done.
Again, we're just reciting a truism that this a 16 concern to the industry and PG&E, and yes, it is.
17 MS. ZAMEK: Well, how do you respond to their 18 comments the inspection identified that you did not conduct 19 your activities for procurement of your sixth emergency 20 generator in a manner to ensure procurement of a product 21 which fully met your quality requirements? Further, you had -
22 several opportunities to identify and correct the 23 procurement deficiencies. For example, you audited the .
24 generator supplier in 1989, identified problems; however, 25 you issued the purchase order prior to the audit report O ^"" ai'ev $ Associ^Tes' 'id-Coud Reponers 1612 - K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
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127 g i being issued and prior to the supplier being placed on 2 you're qualified supplier's list. You failed to properly ,
l 3 resolved a poorly implemented commercial degradation 4 program, and your resolution of a nonconformance report 5 regarding inadequate supply audits which was closed in 1990 6 failed to include the 1989 audit in its scope of corrective 7 action.
8 In addition, the inspection identified that when 9 you did recognize the problems with the 1989 audit, your 10 proposed corrective actions to result the problem were too 11 limited in scope and did not address the potential for 12 similar deficiencies in other audits performed during the 13 same time period. It seems to me very specific that what 14 we're saying is that the audit and the procurement process 15 is not working a hundred percent. And what we want is, we 16 want to be assured that we're not going to encounter more 17 danger from this in the years of the recapture.
18 MR. REPKA: Again, one specific incident that has 19 boon addressed and resolved. It does not and cannot indict-20 an entire program. One found by the NRC Staff again 21 completely lacks basis.
22 JUDGE BECHHoEFER: Miss Hodgd(.1, do you have 23 comments on number III? Additional comments on III?
24 MS. HoDGDON: It's a very short comment. We 25 didn't devote much space to this in our response, and we ANN RlLEY & ASSOCIATES, Ltd.
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128 1 won't devote much time to it here. Most of the allegations O 2 made by the petitioner as a basis for this contention have 3 nothing to do with Diablo Canyon, and some of them don't 4 have anything to do with fraudulent parts, and the only 5 thing this Staff could clearly identify as having to do with 6 Diablo Canyon and fraudulent parts were the information 3 1
7 notices which were mentioned earlier where it was the l l
8 utility who identified the fraudulent parts and brought !
9 about this action which ended up as we recite here that it 10 did, with the perpetrators being identified and et cetera.
11 So we just don't see any connection at all between 12 Diablo Canyon and fraudulent parts. So this is a totally 13 baseless contention.
14 JUDGE BECHHOEFER: What about the references to -
[}
15 - well, inspection report 9209, and there's another one that 16 says 9239, but I think it should be 9139.
17 MS. HODGDON: I believe that's 9139.
18 JUDGE BECHHOEFER: Yes, I say -- thLt's --
19 MS. HODGDON: Well, the trouble with that is that 20 in the statement of contention, they're talking about 21 fraudulent and counterfeit parts, and they sort of wander 22 off into other areas here, and I don't think that the diesel 23 generator problem is about counterfeit or fraudulent parts.
24 I mean, that's all of the record. It's a different kind of 25 a concern. It doesn't really support that contention. It O ^"" aev a ^SSoc'^Tes' d-Coud Reponerer 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
i 129 1 might support something, but that's not what it supports. l 2 MS. ZAMEK: I thought I stated earlier that it was 3 more than just fraudulent parts; that we were concarned with 4 the procurement of quality parts. And in that follow-up 5 meeting to the original one, the management aceting I 6 referred to in 19 -- it was April 21st, 1992, there's a 7 quote from Mr. Martin. He noted that QA had missed I 8 opportunitics to follow up on problems and had not been able l 9 to develop the initiative to identify for themselves areas 10 of concern before they become problems. He stated that the 11 QA function appears fragmented and ill-defined.
12 MS. HODGDON: Judge Bechhoefer, would you ask 13 Miss Zamok to identify the document she's reading from? I 14 don't believe that was offered on this contention.
15 MS. ZAMEK: No, it wasn't. This was on a 16 follow-up item that I have. But --
17 JUDGE BECHHOEFER: I don't think we can expect any 18 parties to analyze it if you don't mark pages.
19 Well, does the Staff view the comments in 20 inspection report 9209 which were cited on pages 21 and 22 21 ot their statement? Even though that particular thing may 22 have been resolved and closed down, does the Staff not view 23 that problen with at least some interest? Or that 24 observation by inspectors, I guess it would be.
25 MSc HODGDON: I believe I already stated, but I Q ANN RILEY & ASSOCIATES, Ltd.
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130 1 believe it's quito clear that the ucility has had problems 2 with the sixth generator. I don't believe that they relate 3 to fraudulent or counterfeit parts. I think that -- well, 4 that's just it. There's just no connection between those, 5 and so now the petitioner's trying to stretch this 6 contention to raise that. I'm not quite sure what the 7 subject matter is, but it's certainly not fraudulent parts.
8 Yes, of course the Staff is concerned about it and 9 expressed its concern in several different ways, and of 10 course there was something about this diesel generator that 11 was offered in support of Contention I. The Staff has 12 addressed it several times, but it just doesn't have 13 anything to do with this subject matter. That was my point.
14 JUDGE silon: Is there not some slight nexus to
}
15 the notion of fraudulent parts or parts that may not be up 16 to snuff, replacement parts, in the portion of that report 17 regarding the diesel generators that saya you failed to 18 properly resolve an important draft audit finding involving 19 a poorly-implemented commercial degradation program and your 20 resolution of a nonconformance report regarding inadequate 21 supplier audits which is closed 1990, failed to include the 22 1989 audit in its scope of corrective action? Doesn't it 23 suggest that if their commercial degradation program is not 24 up to snuff and if their audits of suppliers are inadequate, 25 they might well be sitting ducks for fake parts of one kind O ^"" ai'av a ^ssoci^Tes' 'id-Coud Repoders 1612 K. Street, N,W., Suite 300 Washington, D. C. 20006 (202) 293 3S50
1 131 1 or another?
2 MS. HODGDON: I suppose that there might be an 3 inference that that was a possibility, but certainly I would 4 say that even that is a stretch.
5 MR. REPKA: Judge, if I could help, I point out 6 this is a Level 4 violation, which is, by definition, in the 7 enforcement policy a matter of concern to the NRC, and a 8 matter which they say really could be only serious concern 9 if it's left uncorrected, and there's no implication here 10 that this incident wasn't corrected.
11 But on the facts of the matter, what happened was 12 we had an audit finding that the team leader believed had 13 been addressed, and he considered the matter closed, so what 14 was really going on was a documentation problem. Not an 15 actual factual problem. So completely lacking in safety 16 significance, and again, I think you just cannot focus too 17 narrowly on these issues. Even if you assume it's true, it 18 doesn't add up to a genuine issue that would entitle 19 petitioner or relief.
20 JUDGE BECliHOEFER: Okay. Let's go on to number 21 IV. Providing everyone's had their comments on III, let's 22 go on to IV, then, which is, I guess, age-related 23 degradation of structures. Any further comments or 24 statements on that, on that one? This is for the Mothers of 25 Peace. Do they want to amplify their statements?
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132 1 MS. ZAMEK: Pardon?
O 2 JUDGE BECHHOEFER: I said, do you have any further 3 statements on your number IV, which is age-related 4 degradation?
5 MS. ZAMEK: I think the only thing, as Rochelle 6 Becker pointed out earlier, was the seismic slant to it, and 7 was that Diablo Canyon is unique in the aging category 8 because of the active earthquake fault a mile and a half !
9 offshore, so as these component systems age, nobody really 10 knows what's going to happen to them in the event of an 11 earthquake.
12 JUDGE BECHHOEFER: Well, the claim is made that 13 these components were all analyzed for a 40-year operating 14 life earlier, and my question is, why wasn't that good
[}
15 enough?
16 MS. BECKER: Judge Buchhoefer, may I respond?
17 JUDGE BECHHOEFER: Yes.
18 MS. BECKER: It was never litigated what the 19 effect of age-related plants could be in case of an 20 earthquake, so an earthquake could happen with parts that 21 were brand-new, relatively new, within the first few years 22 of operation, and they perhaps would not be brittle, they 23 would perhaps not be as corrosive, but you have to remember 24 that many of these parts --
25 JUDGE BECHHOEFER: Didn't they assune that these Q ANN RlLEY & ASSOCIATES, Ltd.
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- 1 parts would last 40 years when they analyzed them or not? I V 2 mean --
3 MS. ZAMEK: But we're looking at something like 55 4 years.
5 MS. BECKER: Yeah. We're not looking at 40-years 5 any longer. We're looking at 40 years plus.
7 MR. REPKA: That's not true.
8 JUDGE BECHHOEFER: Well, the allegation from the 9 applicants is that these ;'rts were all analyzed in terms of 10 40 years of service life, operating life. The authorization 11 then was given for 40 years of operation.
12 MS. BECKER: Well, many of these conponents have 13 been out there since the late '60s and early '70s, which 34 would make it much longer than 40 years. They've been
[)
15 sitting out there a real long time.
16 JUDGE BECHHOEFER: Well, operating, actually.
17 MS. BECKER: Right. Well, actually, they have 18 been running tests through part of those components that 19 were sitting out there for that length of time. There's 20 been salt water and salt air corrosion during that period of 21 time, so there hac been some degradation to many el the
! 22 components out at.that plant since the late '60s and early 23 '70s. And in addition to that, we're not sure whether or 24 not this new information that will continue to arise about i
25 earthquakes in Culifornia might be quite relevant to O ^"" ai'ev 5 ^Ssoci^TeS' 'id-Coud Repoders 1612 K. Street, N.W., Sv;te 300 Washington, D. C 2J006 (202) 293-39tr
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134 1 age-related degradation.
2 When we went through the long-term seismic j 3 program, the Mothers of Peace participated in it and read I 4 volumes of documents about it, and we never litigated tha 5 fact -- th, contention of any information on what a 6 different type of earthquake, a new type of earthquake, a 7 different type of movement in earthquake, a different type 8 of ground acceleration could do to plants that have been 9 aging for a great length of time, and a 15-year extension 10 was not considered at that time.
11 JUDGE BECHHOEFER: Well, the claim that's made is 12 that 40 years of operation was considered, and that's what 13 we're tryin3 to balance. We --
14 MS. BECKER: Well, PG&E was granted a license in
)
15 1984 and 1985 to 40 years from date of construction. The 16 laws were past passed in '82.
17 JUDGE BECHHOEFER: Yes. But their claim was that 18 the components were analyzed for 40 years of operation.
19 MS. BECKER: That's PG&E's claim, that's correct. '
20 JUDGE BECHHOEFER: I'm saying we're trying to --
21 MS. BECKER: There are certainly seismologists in 22 the 2 tate of California, among them many seismologists who 23 work for the United States Geological Survey who vehemently 24 disagree with that opinion.
l 25 JUDGE BECHHOEFER: Right, but was the question if h ANN RILEY & ASSOCIATES, Ltd.
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135 1 it was open for consideration _way back then. I'm not sure
-2 it's again open. That's the question I'm raising, the 1
3 applicant-is raising. I haven't reached any decision.
4 We're just trying to see various sides of the question.
5 MS. BECKER: An extension was never considered at 6 that time. An extension of their --
7 JUDGE BECHHOEFER: They're saying 40 years of 8 operation was, even though it wasn't authorized. They're 9 saying 40 years of operation was considered in analyzing the 10 issue, and I haven't looked through the documents to find 11 out whether that's accurate or not, but I'm just taking what 12 their statements are.
13 MS. CULVER: But if you have a component that was 14 purchased and property brought on site in 1969, that means
(
15 it was 15 years old when the plant was licensed and began 16 operating and then they started counting 1 to 40.
17 JUDGE KLINE: I understand you're alleging some 18 sort of shelf life disintegration.
19 MS. CULVER: Yes.
20 JUDGE KLINE: Exclusive of service.
21 Do you have specific examples now -- now we get to 22 the issue of basis. Do we have examples or something that 23 you can poinc us to to_say yeah, here was some degradation 24 that occurred outside of actual service? And this is the 25 kind of basis that would be helpful at'this point.
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- 136 1 MS. BECKER
- Unfortunately, we didn't have time to gc 2 find that. We contacted several experts who were concerned 3 about this issue, also, when they read our contentions and 4 PG&E's response and gave us some leads on how to find some 5 of this information. Unfortunately, the leads had to find 6 it included using our public document system. It was not 7 available, and the person who could access the new dock 8 system was not available because the rain made her house 9 leak. I mean, they're silly little excuses and we're really 10 sorry that they are, because we wish we could come here with 11 all this information in hand, but we can't, but there are --
12 JUDGE KLINE: We understand you don't have to make 13 a case today. The only issue is whether there's a threshold 14 basis.
35 The other question I would like to ask is, are you 16 asserting to us that something knew about earthquakes has 17 been discovered since the last licensing?
18 MS. BECKER: Absolutely. (
19 MS. CULVER: Yeah.
20 JUDGE KLINE: I mean, tell us about that. What is 23 your understanding of what new information there is about 22 earthquakes?
23 MS. BECKER: Okay. Since the long-term seismic 24 program was -- I'll have to put + his in quotes, " resolved,"
25 because we don't really feel that it's resolved, this past O ^"" ni'ev a Associates' 'ta-Court Reporters 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
137 1 year, we've had several new earthquakes in California that
\ 2 have been very surprising to the United States Geological 3 Survey, both in where they are and how they move, and the 4 information that can be extrapolated from those earthquakes S is still being studied, and that's information that we don't 6 have at this juncture.
7 JUDGE BECHHOEFER: And would they exceed the 8 decide bathe earthquake for which this plant was designed?
9 MS. CULVER: Well, the main controversy is about 10 what kind of motion the Hosgri fault is going to -- how it's 11 going to move in an earthquake, and PG&E has concluded in 12 their long-term seismic program just as they have all along, 13 that the motion -- the movement will be almost completely
()
14 horizontal, and they need to conclude that, because if they 15 agree with some of the USGS scientists that there will be a 16 lot of thrusting, a large thrust component, then the plant 17 is not designed to withstand that.
18 MS. HODGDON: Judge Bechhoefer, may I ask a 19 question? Why are we considering seismicity on Contention 20 IV which doesn't take it up?
21 JUDGE BECHHOEFER: Because they seemed to say that 22 the program there, the aging, had more importance.
23 MS. HODGDON: Well, I don't see that.
24 JUDGE BECHHOEFER: Well, I don't see it in the 2S papers, either.
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138 1 MR. REPKA: I agree with Miss Hodgdon. This is a 2 newly filed contention with no showing of good cause 3 effectively, but beyond that it has no basis.
4 MS. HODGDON: If we discuss it now, then are we 5 going to discuss it again or are we going to skip over it 6 when we get to the seismic contentions? That was merely my 7 question. I don't see it has anything to do with this 8 contention. There's just nothing in there about -
9 earthquakes.
10 MS. BECKER: Well, we r y not have written it in 11 aging. But we believe it affects every contention that 12 we've written.
13 JUDGE BECHHOEFER: I guess you should wait
'"3 14 until --
15 MS. BECKER: Okay.
16 MS. ZAMEK: There was something in the -- let me 17 find it.
18 JUDGE SHON: I'd like to take a little look at the 4
19 list that you have starting on page 26 of your -- well, we 20 car start on 24, but as I see it, there's a list on page 24 21 of things that could age, and in effect it just includes a 22 list of everything. It doesn't give any reason to assume, 23 for example, that pipes were thin before they were installed 24 or anything like that or after they're installed, but 25 starting on page 26, you give several apparent examples of Q ANN .RILEY & ASSOCIATES, Ltd.
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i 139 1 age degradation.
2 Now, as I understand it, one of the things you're 3 saying is that in effect age degradation starts when a 4 component is manufactured and maybe when it's delivered to 5 the site, but shelf life considerations and things like that 6 make it so that 40 years is 40 years from then; not 40 years 7 from when it started operating; is that right? And I just a wanted to look at each one of these things and see whether 9 that's true of these examples that you've given which are 10 the really well-founded examples, the simple list of 11 components it would be awfully difficult for us to speculate 12 on.
13 So you start with the first one. It says it's 14 been identified by NRC as a reactor with anticipated vessel (J~]
15 embrittlement.
16 Now, so far as I know, this is on page 26, it's 17 about ten lines from the bottom. So far as I know, reactor 18 pressure vessel embrittlement is due to fast neutron 19 radiation, and that couldn't have started when the vessel is 20 delivered, so that one probably isn't the sort of beast.
21 The next one is leakage occurred from the chemical 22 quality control system diaphragm valve, and it was traced to 23 thermally-induced premature degradation of the valve dying 24 off. Well, it seems unlikely that a valve would thermally 25 degrade before it was installed.
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140 1 The next one is corrosion was discovered on some O 2 piping. That one seems to me as if it may be something that 3 could happen when the piping was standing around, and there 4 has been some damage cracking to the wells on the steam S generator feedwater nozzle pipes. Well, that ones sort of a- ,
6 wash. I don't know whether that one happened during shelf 7 life or not. But it seems of the bunch here, there's only 8 about one that looks as if it could happen at_any time other 9 than in operation. Is this not right?
10 MS. ZAMEK: Yes. On page 12, I know it's in 11 maintenance, but there's corrosion on the DFO supply piping.
12 The root cause was degradation of the DFO piping, cold, hard 13 coating, which exposed the pipe to standing water, salt
{} 14 15 water, and an air environment. I think that's more what we were concerned about, that it's sitting right there on the 16 cliffs of the ocean, and a lot of the materials that are 17 exposed are being damaged.
18 JUDGE SHON: Oh, yes. I see.
19 MR. REPKA: We believe, Judge Shon, that's the 20 same LER, the same issue.
21 - JUDGE SHON: You what?
l l 22 MR. REPKA: That's the same LER. That's the same 1
23 issue.
l 24 JUDGE SHON: I see. That's involved in the 25 degradation of the --
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141 2 1 MR. REPKA: DFO piping. . l 2 JUDGE SHON: Yes. Okay.- -l P
3 MS. ZAMEK: It explains it.
4 JUDGE SHON: So it's really the same thing twice.:
5 It's not two' separate instances.
6 MR. REPKA: Correct.
7 _MS. ZAMEK: In one instance 'I was_ talking to the 8 inspection procedure that didn't identify this~~in this case, 9 the fact that it's-happening.
10 The point of the aging contention was that aging.
11 is already taking place. It operated eight years, only 12 eight years, and there's already evidence of it. And it .
13 will just increase.
14 JUDGE SHON:- Thank you. That's.all I had.
l 15 MS. ZAMEK: I would like to comment on 16 Commissioner Roger's speech. The NRC Staff, I think, 17 misinterpreted the significance of it, which was that the-4 18 traditional ways of viewing nuclear power plant safety are--
19 not adequate when it comes to aging because aging compounds'
.20 the threat of an accident'in ways not previously 21 anticipated. The fact that Commissioner. Rogers expressed 22 optimism about the way aging would be handled'in the future I.
23 doesn't alter the basic-problem or the need to address aging 24 in this particular proceeding. I don't believe that the
,: 25 traditional maintenance and surveillance programs are going-L l
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142 1 to cc*.;h all the stuff that's happening with these aging O 2 parts.
3 JUDGE SHON: Only to catch things that happen to 4 parts as they age? Is that not the purpose of the --
5 MS. ZAMEK: Well, perhaps it's supposed to. But 6 the contention is that the maintenance and surveillance is 7 not working effective. The personnel's not following 8 directions effectively and operating effectively. Compound 9 that with aging, we have problems at the plant.
10 JUDGE BECHHOEFER: Well, are you really saying 11 that this one example which you mentioned leaked twice, if 12 we accepted a contention, we'd probably only consider it 13 once, so you're saying this is really part of Contention I
/ 14 more than this one? I mean --
15 We're not likely to consider it --
16 MS, ZAMEK: It's very difficult to separate them 17 all.
18 JUDGE BECHHOEFER: Yes. They seem to --
19 MS. ZAMEK: They all affect each other.
20 JUDGE BECHHOEFER: They seem to have some 21 relationships.
22 MS. ZAMEK: Uh-huh.
23 JUDGE BECHHOEFER: To the extent we accept the 24 contention, I think we would require that the subject be 25 heard.only once in the context of --
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l 143 7- 1 JUDGE SHON: You might hear it only once, but you xs 2 might accept it as a basis for more than one contention.
3 JUDGE BECHHOEFER: Yes. I guess that's true.
4 Right.
5 Let's see. Does Staff have any comments on this 6 one?
7 MS. HODGDON : No. Except that I don't understand 8 the point about Commissioner Rogers' speech. Commissioner 9 Rogers' speech was about ways to handle aging, and therefore 10 to complain about the Staff's representation of what the 11 speech says, I have it right here. I just looked it over.
12 It says that he's a little concerned about common mode 13 failure, particularly with regard to steam generator tubes,
('S 14 and then he goes on and says what can be done about that. I b
15 just don't see how in the world that supports this 16 contention. I just can't understand it.
17 MR. REPKA: Let me follow up by saying that that's 18 true. That just states the obvious concern that things wear 19 out, and that's what maintenance and surveillance is all 20 about. Aging is a bit of a term of art, and it relates to 21 equipment beyond the 40-year statutory lifetime, and that 22 seemed to be the thrust of this. contention originally. It 23 seems like it's altering this morning -- or this afternoon.
24 But in either event, there's simply no basis for the 25 contention.
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144 1 JUDGE BECHHOEFER: Well, there's a basis, but 2 whether it's a 1cgitimate basis --
3 MR. REPKA: Sufficient basis.
4 JUDGE SHON: I think I take issue with the-notion 5 that aging relates only to something beyond the 40-year 6 projected lifetime. Surely Yankee Row sort of aged itself l I
7 out of existence or it became too expensive to prove that it ,
8 hadn't and it didn't last 40 years.
9 MR. REPKA: Well, clearly-in the sense that aging 10 means that things degrado, things wear out, embrittlement 11 occurs, yes, that exists throughout the lifetime of a plant, 12 and that's why you have maintenance and surveillance 13 prog raF.S . That's why you have the requirements related to 14 embrittlement and pressurized thermal shot, and this
)
15 amendment doesn't change any of those things. Diablo Canyon s
16 will continue to comply with those requirements.
17 To cite one incident where something wore out or .
18 showed signs of degradation is simply stating the obvious, 19 really.
20 JUDGE BECHHoEFER: I'm not sure I specifically 21 called on you for this contention. If you have any other 22 comments besides answering questions, you're welcome to make 23 them, too. I guess I sort of skipped from the --
24 MR. REPKA: That's why I butted in. But no, 25- have nothing --
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s 145 f 1 JUDGE BECHHOEFER: I didn't mean.to exclude you, 2 and if you have further comments, please make them.
3- MR. REPKA: I have nothing further.
4 JUDGE BECHHOEFER: Okay. ?
5 MS. BECKER: Judge Bechhoefer, before we go on to 6 the next contention, one of the experts'that we contacted 7 had_ told us that some of the Westinghouse parts such as 8 pumps and valves had been shipped out during the late '60s 9 and early '70s and had been subject to this corrosion since 10 that time, salt water and air,-testing with salt water 11 through the. components.- We_tried to find the original 12 contracts from Westinghouse to see if they.were guaranteed-13 from date shipped or date of operation.
14 The understanding of many of-these people was it.
15 was guaranteed from'date of shipment, which was.the late 16 '60s and early '70s. Unfortunately, it was impossible-to 17 find those documents, but we do believe thatithey1 exist.and 18 we would like to have the opportunity to present them to-l 19 this licensing; board if this contention is allowed. ,
20 MR. REPKA: Clearly,_that's speculative, but-21 beyond that, it --
22 JUDGE BECHHOEFER: Well, it would.be a late' filed:
23 contention- subject to whatever the rules are for late: filed 24- contentions as well. But -- or if it was a:significant .
25 change in the contention that was submitted. But --
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146 1 MR. REPKA: It's clear we don't admit contentions 2 in order to pursue theories and discovery.
3 JUDGE SHON: I think you make a good point, 4 though. I know when I buy a kitchen mixer or something 5 that's guaranteed for a year, it's for a year from the date 6 I bought it. Not from the year from the date I started to 7 use it. I'm not sure that's really significant, but I'm 8 just -- -
9 MS. BECKER: I'm not sure if my mixer's 10 radioactive.
12 JUDGE SHON: I can't go back three years later and 12 say, "Oh, I didn't start to use it-until last year."
13 JUDGE BECHHOEFER: Well, let's get to number 14 Roman V.
15 JUDGE SHON: Yes.
16 JUDGE BECHHOEFER: That's the thermal lag 17 contention.
18 Now, thermal lag as such I can bet was not 19 litigated earlier, but the question is whether that kind of 20 thing is litigable in this proceeding, and so -- this kind 21 of proceeding, I should say, and I'd like to hear some 22 further comments from Mothers for Peace on this as well as 23 anything else you want to address on what's been said about 24 thermal lag so far.
25 MS. ZAMEK: Here I go.
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147 1 We got a lot of static about the NIRS study, but O 2 although there was not a NIRS study that the report 3 erroneously supposed, it was based on NRC documents and it 4 did raise the question of thermal lag, thermal lag 5 susceptibility to earthquakes which were here seismic again.
6 JUDGE BECHHOEFER: Well, is there any such study 7 as each?
9 MS. ZAMEK: There is no such study --
9 JUDGE BECHHOEFER: The Staff suggested if there 10 was, you should have handed it to us today.
11 MS. ZAMEK: No. We also found out even before we 12 received the NRC Staff response that that was a mistake in 13 that newspaper article, that there is no study that's been 14 produced. There's a contention that thermal lag has some 15 problems in earthquakes but it has not been proven, I guess, 16 yet. But nonethcless, earthquakes do cause fires, and 17 that's a known, and thermal lag is a problem and it's 18 combustible and it-is on -- even though it is not on the 19 cable trays, we were corrected from PG&E, it is on the 20 conduits effective safe shutdown circuits. That's my 21 understanding. The compensatory measures that they've-22 installed, the human rovers and sprinkler systems we've 23 shown where they seem unreliable, and what --
24 JUDGE BECHHOEFER: Yes. I believe you've 25 -demonstrated some examples of missed fire watches. That O ^"" ai'ev * ^ssoci^Tes' d-Coud Repoders 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202)- 293-3950 1
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148 1 kind of thing troubles me a little bit, but that's going to 2 be the solution to the problem.
3 MS. ZAMEK: Well, we don't believe that the 4 problem's been dealt with adequately, and the idea of giving S them an extra 15 years without resolving even this issue 6 seems a little inappropriate.
7 June would like to speak.
8 MS. von RUDEN: I have to admit I was another one 9 that was very concerned about the fire watchers. Do you 30 have fire watchers -- I'm quoting one of your inspectors --
11 watching the fire watchers to see if they do their job?
12 Because this is a real serious issue, and human error is 13 usually the cause of a catastrophic event. I know in one of 14 their fire prevention -- or dealing with fire out there, for 15 instance, personally that was a -- the fire workers doing a
_2 16 controlled burn had protection suits, but the man on the 17 tractor, for instance, did not have a suit, and it could 18 r e been a horrible thing. And people missing fire 19 watching, falling asleep or whatever, to me is no comfort, 20 and to me this is an interim solution, and to extend a 21 license on into when I don't expect to be around almost by 22 having roving fire watchers is -- to me, it's not strong 23 enough. I think it's a valid contention that until they 24 come up with a solution or prove that thermal lag has failed 25 every test so far, I believe that it is a valid contention.
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149 1 JUDGE BECHHOEFER: Mr. Repka?
(,
2 MR. REPKA: Several points. First, this 3 contention clearly fails the test of nexus to the recapture 4 period. It's a present-day issue. It's.an issue that is 5 really a non-issue for Diablo Canyon, but it has no tie to 6 the recapture period at all. So clearly it's not 7 admissible.
8 JUDGE BECHHOEFER: Well, do you have any solution 9 to the problem that it will take effect before the recapture 10 period?
11 MR. REPKA: That's my second point. In effect, 12 the issue is effectively resolved right now for Diablo 13 Canyon based on the existing technical specification 14 authority to implement compensatory measures, and based on
)
15 the NRC Staff's bulletins and generic letters on this 16 subject, they've allowed certain compensatory measures, and 17 those measures have been taken and they've been accapted for 18 Diablo Canyon by the NRC Staff.
19 JUDGE BECHHOEFER: Now, are you saying that that 20 interim solution in itself is not subject to challenge when 21 you get a proceeding such as this?
22 MR. REPKA: That's correct.
23 -JUDGE BECHHOEFER: This seems -- I think you heard 24 the description earlier of 2.206's solution when there is no 25 other proceeding, but when another proceeding occurs and ANN RILEY & ASSOCIATES, Ltd.
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150 1 opens the door, then 2.206 doesn't rule out using the other 2 proceeding for resolving any particular issue. That's my 3 understanding of some earlier cases.
4 MR. REPKA: 2.206 would not rule out the 5 applicability --
6 JUDGE BECHHoEFER: The fact they could bring it 7 under 2.206, 8 MR. REPKA: It wouldn't rule out it's 9 applicability in the other proceeding if it was 10 fundamentally within the scope of that other proceeding, and 11 it's not, because of the nexus requirement to the recapture 12 period. So the answer is no. All --
13 JUDGE BECluloEFER: Isn't your application to just
/9 14 continue what you have into the recapture period in which e V
15 case, absent some other solution, it will last throughout 16 the rest of the life of the plant?
17 MR. REPKA: It's clearly speculative to say what's 18 out there right now to address thermal lag is what will be 19 there many years down the road, but the fact is --
20 JUDGE BECHHoEFER: Well, isn't it speculative to 21 say what's out there now isn't going to be used?
22 MR. REPKA: What's out there now is perfectly 23 acceptable and has been accepted by the license and by the 24 NRC Staff, so again there's no basis for all the various 25 concerns of seismic effects and fires.
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151 1 JUDGE BECHHOEFER: What about the missed watches?
2 That's the thing that doesn't sound too good to me. How 3 many watches can you miss?
4 MR. REPKA: Well, clearly no missed watches are a 5 good thing, but let's back up again to first priaciples in 6 the fire protection program. The compensatory measures for 7 thermal lag are related -- include much more than just fire 8 watches. Thermal lag is only installed in very limited 9 areas in the Diablo Canyon plant, but in those areas, 10 they're very low fire lor.c:s, meaning there are few, if any, 11 combustible materials that could cause a fire. The concept 12 that earthquakes could cause a fire is completely irrelevant 13 if the plant is designed to sustain those earthquakes, which 14 it is and, number two, if there's nothing there that could
(
15 create a fire. In addition, in many of the areas, there's 16 automatic fire detection capability.
17 JUDGE BECHHOEFER: I take it your inspectors don't 18 use cameras to find things.
19 MR. REPKA: No , they didn't -- they do not.
20 But there's automatic detection capability, in some areas 21 there's automatic suppression capability. There has been 22 analysis in other areas of the exact fire loads, and 23 where thermal lag is installed it may not meet the full 24 one-hour or three-hour that it was_ originally expected to l
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152 1 exists. We're talking about fire _ loads in areas of the 2 maximum credible fire being 13 minutes or 15 minutes. So 3 thermal lag is more than adequate to address those kinds of 4 things.
5 But in that con- --
6 JUDGE BECHHOEFER: But isn't that evidentiary?
7 Isn't that a question of evidence?-
8 MR. REPKA: Well, I think I feel that like I have 9 to respond to that given the nature of the concern, but the 10 point is there really is no basis for such a concern, and to 11 bring an issue and say this is an operational issue out 12 there that the licensee and the NRC has raised and, 13 therefore, I am concerned because such-and-such could happen 14 is simply not enough for a contention, because there's no 15 support for that, and a mere concern, a mere speculation 16 does not neet the Commission's threshold requirements for 17 contentions historically or now under the revised rules.
18 And I would underscore on this issue that the plant is 19 currently in compliance with his license and all NRC 20 requirements.
21 MS. ZAMEK: May I make a statement here or a 22 question or whatever it is?
23 JUDGE BECHHOEFER: Yes. Well -- go ahead.
24 MS. ZAMEK: I'm curious to know in a moment what 25 he has to say about that fact that thermal lag is
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153 1 combustible itself. And also, I noticed in a letter -- I 2 don't know what's happened with it, but in a letter, 3 Snptember 28th, this year, to the NRC in response to an NRC 4 bulletin 9201, they have asked to replace the continuous 5 fire watch -- additionally -- okay. PG&E has proposed using 6 a portable detection system in conjunction with an hourly 7 fire watch to replace the continuous fire watch. This PDS, 8 they call it, will be used in installing a permanent fire 9 detection system, and PG&E acknowledged that the PDS will 10 not comply with requirements provided in NEPA 2 and has 11 added an hourly fire patrol. So it sounds like things --
12 they don't even want to do the fire watches. I don't know 13 what this supportable detection system is, but I was 3 14 concerned about it when I read that, and I don't know how (V 15 the NRC responded to it.
16 MR. REPKA: The Commissioner says that the 17 measures taken are completely consistent with the license 18 with what the Staff requirements on thermal lag have been 19 and have been accepted by the NRC. And in our papers we 20 cited the NRC correspondence where they accepted our 21 response to bulletin 9201, Supplement 1, accepting our 22 methods for providing protection and prevention of fires.
23 JUDGE BECHHoEFER: I have here a notice 9246 which 24 seems to supplement some of these earlier statements. It's 25 June 23rd of this year.
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154 1 MR. REPKA: I believe you're referring to an 2 information notico.
3 JUDGE BECHHOEFER: Yes.
4 MR. REPKA: And there have been several of those 5 on thermal lags.
6 JUDGE BECHHOEFER: Yes.
7 MR. REPKA: It's Bulletin 9201 and it's 8 Supplement 1 --
9 JUDGE BECHHOETER: Right.
10 MR. REPKA: -- are the two documents in which the 11 NRC requests a licensee's response and a description of 12 where they have thermal lag and what compensatory measures 13 are undertaken.
14 JUDGE BECHHOEFER: I have it here.
l 15 Well, Miss Hodgdon, do you have --
16 MS. HODGDON: Yes. I have several observations.
17 One, Miss Zamek said they didn't know what the NRC's 18 response was to PG&E's response to Supplement 1 to the 19 bulletin. I think both the licensing and the Staff 20 mentioned the NRC's response in their responses to this 21 contention, but apparently we didn't make ourselves clear, 22 so I'll be happy to read from that response. This is 23 response to PG&E's response to --
l 24 MS. ZAMEK: Well, I'm referring to the PDS 25 situation.
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1 MS. HODGDON: That's it.
2 MS. ZAMEK: Okay.
3 MS. HODGDON : It says, "We have reviewed your 4 letter dated September 28th, 1992, submitted in response to 5 NRC Bulletin 9201, Supplement 1. By utilizing a 6 self-contained, portable fire detection system in 7 conjunction with an hourly fire patrol and administrative 8 controls, we conclude that the intent of your technical 9 protection prevention without reducing - " I missed a line 10 -
"the intent of your technical specifications is still 11 met. We find your selected method of providing fire 12 protection prevention without reducing the effectiveness of 13 your fire protection capability to be acceptable."
, 14 So the Staff said it was okay.
15 MS. ZAMEK: And where was I supposed to find that 16 letter?
P 17 MS. HODGDON: Excuse me? This is e Staff letter 18 dated October --
19 MS. ZAMEK: I thought maybe you were referring to 20 something in your response 21 MS. HODGDON: Yes. I did refer to it, and Staff 22 refers to it in the response, as we try to put the 23 allegations about thermal lag in context, and we recite what*
24 happened. They issued a bulletin. PG&E responded. They 25 issued a supplement. PG&E responded. And then finally, if l
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156 1 I can find the place, the Staff said -- and I'm on 31. I O 2 think it must be on 32. On September 28th, PG&E responded.
3 On October 27th, 1992, Harry Rude, Senior Project Manager, 4 NRC, responded to Mr. Rueger's letter indicating that its 5 review of PG&E's response led the NRC Staff to conclude that 6 the intent, et cetera, what I just read --
7 MS. ZAMEK: But there's nothing in there about 8 the --
9 MS. HODGDON: It doesn't -- no. It does not --
10 MS. ZAMEK: -- about the PDS? So it's not like I 11 missed something?
12 MS. HODGDON: It's not specifically the PDS, but 13 they found the response okay. And then --
14 MS. ZAMEK: I understand, but I question it 15 because even when it says here it doesn't meet NEPA 72 16 requirements.
17 MS. HODGDON: In addition, I would say that the 18 petitioner stated that thermal lag had failed every test so 19 far and, of course, that isn't true. The bulletins recite 20 that thermal lag didn't meet certain tests, and other tests 21 were indeterminate and so forth. But in any event, 22 thermal lag has been found-to provide protection against 23 fires. And the fact that it will burn at 1,400 degrees 24 Fahrenheit is not an indication that it's not an effective-25 fire retardant material. I don't want to speculate as to O ^"" aev ^ ^SSoci^Tes' 'ta-Coud Repoders 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
157 1 how the NRC will come out on this, but I will say that there 7-2 was a meeting, a public meeting, held on November the 13th, 3 1992, on the status of the Staff's actions in regard to the 4 thermal lag concern and that the Staff indicated there that 5 they would have the generic letter that the petitioner NIRS, 6 was petitioning to have issued, they'd have that letter 7 ready in two weeks. They in fact -- the Staff in fact 8 submitted it to the Commission in the second paper dated 9 November the 30th, which has to be held for ten days, so it 10 will be made public on Monday, 11 In any event, this is a generic problem which 12 would seem to be of short-term -- a short-term problem that 13 will be resolved long before the period in question. It 14 doesn't seem to have any applicability to Diablo Canyon.
(
15 Their installations are very limited. And they don't have 16 any of the installations that are of concern.
17 As regards the fire watches, Mr. Repka stated 18 that -- with regard to the few missed fire watches, that --
19 we stated one part of the proposition. The other part was 20 that the fire watches at Diablo Canyon don't necessarily 21 relate to -- they're not necessarily compensatory because of 22 the failure of thermal lag, because they always had fire 23 watches which were for other purposes, and so a missed fire 24 watch is not necessarily related to thermal lag in any way.
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,s 3 are being cited for the fact that if you're relying on the
/ p 2 fire watches generally you better watch out because some of 3 them are going to be missed, and I realize that they 4 probably didn't relate to thermal lag.
5 MS. HODGDON: Well, Mr. Repka stated half that 6 reason. He said that they had other things besides fire 7 watches, and I said they had fire watches other than 8 thermal lag fire watches, so -- and it's really quite 9 complicated.
10 MR. REPKA: And the third thing is, you have to 11 keep in mind the sheer number of fire watches we're talking 12 about, so a few missed fire watches does have to be looked 13 at in context.
14 JUDGE BECHHOEFER: There's another question, 15 however: Is that not evidentiary? I mean, do we say we do 16 our fair fire watches, miss two or three, when you start 17 missing 20 or 30 or 50? At some point your remedial steps 18 are not working.
19 MR. REPKA: First, the contention is outside the 20 scope of the proceeding.
21 JUDGE BECHHOEFER: And I -- whether it is or not, 22 I'm not sure it is.
23 MR. REPKA: Second, a few missed fire watches does 24 not constitute a basis to say that there's no adequate 25 protection against thermal lag when you consider the number
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159 1 of fire watches involved around the plant and the lack of 2 correlation to thermal lag installations and, two, all of 3 the other compensatory measures in place to address fire --
4 thermal lag and, three, all the other measures in place to 5 address Appendix R, the fire protection program, so this 6 licensing board does have to take a thoughtful look at 7 what's offered as a basis for a contention and say can that 8 possibly add up to relief in this proceeding? I can't '
9 imagine that a few missed fire watches would lead to A, a 10 denial of an operating license extension and, B, any 11 condition on that -- what could the condition be? We're 12 already required to do the fire watches and, of course, we 13 take that obligation seriously.
14 JUDGE BECHHOEFER: Well, maybe a.dditional 15 accounting for when you do or don't do a fire watch. Can 16 you check with somebody -- have a fire czar maybe on a 17 throne up there.
18 MR. REPKA: The basic point is we can't just say 19 that's an evidentiary matter. There a has to be some 20 thoughtful look at the context and some perspective given 21 for what's offered. I think in our papers we cited a 22 Vermont Yankee decision not related to CP recapture that 23 specifically -- which the appeal board specifically made 24 that point.
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160 1 Cases.
O 2 MR. REPKA: I wasn't going to mention that.
3 JUDGE BECHHOEFER: Anything more on the thermal 4 lag contention?
5 MS. ZAMEK: I just have one more note on that.
6 JUDGE BECHHOEFER: Okay.
7 MS. ZAMEK: And that's the -- to say that it may 8 be moot by the time we get to the recapture period is 9 irrelevant, because we don't know that, and I can cite the 10 problem with waste storage which we'll soon get to as an 11 example that's not been resolved. Nobody has an answer to 12 that yet, and we don't know what's going to happen with 13 thermal lag. I think it is important and that the
() 14 15 contention should be admissible.
JUDGE BECHHOEFER: Let's go on to-Contention VI, 16 dealing with hazardous materials. Mothers for Peace have 17 any further -- let me turn to it first. Storing and 18 handling hazardous material. Do you have any further 19 comments on --
20 MS. ZAMEK: Yes 21 JUDGE BECHHOEFER: That --
22 MS. ZAMEK: Of course.
23 JUDGE BECHHOEFER: If so, now is your chance.
24 MS. ZAMEK: First I'd like to acknowledge that I 25 realize that the Mothers for Peace cannot speak for the Q ANN RILE'( & ASSOCIATES, Ltd.
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() employees in this particular contention when we cito 1
2 problems that affect employeo -- personnel hazard. I 3 understand that we cannot, you know, speak for them. That's 4 not allowed here.
5 JUDGE BECHHOEFER: Unless your membership includes 6 them. -
7 MS. ZAMEKt Right, and they'd get fired, so 're 8 cannot do that.
9 So the purpose of the contention is twofold: one 10 is to show the sloppy work that's going on there, the
- 11 directions that are not followed and, of course, this ties 12 in with personnel error in the maintenance and surveillance '
13 programs. And that seems very severe where signs weren't
()
14 posted and chemicals weren't posted in the RCA room. All 15 those chemicals that weren't labeled. Nobody knew what they 16 were. That was really an example of poor workmanship. And 17 the second part of it, what I found particularly disturbing 18 was that those spray bottles and all these chemicals that 19 are sitting around weren't marked. There was a comment by 20 an NRC inspector inferring that these chemicals could 21 inadvertently be used somewhere where they shouldn't be and 22 cause some problems with the integrity of some safety 23 system. Let's see, it says the inspectors expressed 24 concern about the wide availability of materials with 25 potentially detrimental properties to corrosion-resistant C ANN RILEY & ASSOCIATES, Ltd.
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162 l 1 alloys that were found in the RCA, and, of course, I suspect O 2 that theno could be used in places where they shouldn't be ,
3 and corrode metais that are of great concern.
4 MR. REPKA: Well, what concerns me here and 5 particularly on this issue is the broad characterization of 6 sloppy work that goes on there. That simply is not true.
7 There is one inspection report cited. To broadly 8 characterize that as the sloppy work going on at the plant 9 is just flat -- there's no basis, and it's irresponsible.
10 Let's put that into perspective again, and I'll go 21 back to the SALP reports again. The most recent SALP rating 12 for Diablo Canyon is in the radiological controls area, the 13 aron relevant to this contention, was a Category 1 rating.
( 14 The previous cwo SALP ratings were also Category 1 ratings.
15 I just object to the broad characterization and believe it's 16 unfounded and the contention is completely lacking in basis.
17 Deyond that, the incident cited is a routine 18 operational matter. That really has no bearing on the 19 amendment at issue. I'll stop there.
20 MS. ZAMEK: I think on page 34, on June 1987, 21 PG&E'S quality assurance group identified that consumable 22 material issue were not informed through report NRC. Tha 23 report remained open for two years before li L'i finally 24 closed in September of 1989. I think this problem is 25 longstanding.
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l 163 l 1 MR. REPKA: One incident.
C:) 2 MS. ZAMEK: That makes two. I can find more.
\
1
[ 3 JUDGE BECHHOEFER: Miss Hodgdon?
4 MS. HODGDON: The Staff doesn't have very much to I i
5 add to what it says in its response. As the petitioner 6 acknowledges, they don't represent the workers on site, and 7 beyond that, beyond this having the possibility of affecting 8 anybody eine, it's so highly speculative it's completely 9 baseless, and so we oppose the contention as being lacking 10 in basis, and beyond their not h /ing -- not representing 11 the workers. For both of those reasons.
12 JUDGE KLINE: Do the Mothers for Peace suggent.
13 that any hazard whatever from those rouerial flow as a 14 direct result of that the amendment under consideration?
[)
15 MS. .ZAMEK: I think I -- it just *'ed into the 16 personnel. Maybe that's where it should have been mor.
17 oppropriately put as problems with personnel error.
18 JUDGE KLINE: But you realize f. hat's something you 19 can't really can't do is represent the Iersonnel.
20 MS. ZAMEK: Yes. I understand.
21 Another thing that occurred to me is they allow 22 school children to go out to the plant. There's this marine 1
23 lab cut there. I haven't been out there mysel f. And they i
24 go down to the cove. And I understand that where they keep 25 this, where -- all these hazardous wastes in a building is l
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1 fairly close to the marino lab, and I know that there's O 2 spills that go on out there occasionally, and I was told ,
3 that it's two stones' throw away, so in that respect, it 4 might affect the children.
5 JUDGE KLINE: This is the one that creates the 6 question of whether relief could be granted, but -- by an 7 NRC board. That if there was a toxic material that created 8 a toxic hazard to children, somebody might have a 9 jurisdiction over that, but can un NRC board that has 10 jurisdiction over reactor safety or radiological hazards, ,
11 could it do so? That's the question I guess that's in my 12 mind, and I appreciate hearing from you or anybody that 13 wants to comment on that.
14 MR. REPKA: The contention as drafted really 15 addressed radiological materials, and -- I mean, school 16 children do not go into radiological areas. I can assure 1.7 the Board of that fact.
18 JUDGE KLINE: The contention as drafted refers to 19 hazardous materials, some of which include oil, acetone, 20 acetic acid and other such things. Is there any 21 jurisdiction on this Board over such material?
22 MR. REPKA: Judge Kline, two points: First,.the 23 contention that the basis does go into some toxic materials 24 but the actual statement of the contention does not, but 25 beyond that, hazardous materials other than radiological C ANN RILEY & ASSOCIATES, Ltd.
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165 1 materials are permitted by the State of California and are O 2 not within the jurisdiction of this Board.
3 JUDGE KLIllE: Okay.
4 MS. BECKER: Is it possible that they might bo 5 under the jurisdiction of this Board under liEPA regulations?
6 MR. REPKA: llo .
7 JUDGE SilOll: The only nexus I could soo would be 8 that if this Board did deny an extension of a licenso, then 9 at least to the period of the extension they probably 10 wouldn't handle those wasto matorials that way just as a 11 result of not doing anything.
12 MR. REPKA: Just to amplify, the 11ational 13 Environmental. Policy Act does not create substantivo 14 jurisdiction.
15 JUDGE BECilllOEFER: I don't soo anything --
16 JUDGE KLIllE: Are you looking at Contention VII in 17 your response or VI?
18 JUDGE BECilllOEFER: We're six talking about VI.
19 MR. REPRA: I thought I was, too. ,
20 JUDGE BEClll10EFER: We're talking about 21 radiological materials in VI as such.
22 MS. IlODODON: I think ho was talking about the 23 RCA, the radiologically controlled area, and so he was --
24 which is wnoce theso materials woro, those hazardous 25 materials.
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166 1 JUDGE KLINE: The contention or the text of the 2 contention specifically mentions a number of chemicals that 3 1 don't soo are radiological hazards por so. Manvillo 4 Expandoflash, clover lathing compound, et cotora. And on 5 the following page, it references to acetono, acetic acid.
6 Do we have any jurisdiction whatever to regulate 7 those materials?
8 MR. REPKA: No. But I think where I was coming 9 from in the inspection report cited the notice of violation 10 that was the specific -- the NRC inspection report that was 11 the basis went to labeling of containers of NRC licenced 12 materials and posting of soveral radiation areas, and that's 13 why wo interproter'. the thrust of this contention as being 14 radiation.
15 JUDGE KLINE: Let me ask the Mothers for peace.
36 If there was a connection betwoon nonradiological hazards 17 and a radiological hazard, there might be some basis for 18 jurisdiction. Have you alleged or do you think you have 19 soon such a connection?
20 MS. ZAMEK: Betwoon?
21 JUIX;E KLINE: Between a nonradiological hazardous 22 material and some radiological hazard at the plant or some 23 structural problem at the plant.
24 MS. ZAMEK: The only way is what I stated already 25 abor.t-the wide availability of materials that are not marked O ^"" ai'ev
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167 1 with detrimental properties to corrosion-resistant alloys.
2 I can see using them and corroding some safety-related 3 equipment which would -- which could then cause a 4 radioactive problem.
5 JUDGE KLINE: Have you uncovered any basis or 6 evidence that that --
7 MS. ZAMEK: No. Just a supposition from an NRC 8 inspector.
9 JUDGE KLINE: Okay.
10 JUDGE BECHHOEFER: I guess it's time to go to 11 number VII. This is the problem with radioactive waste 12 storage. Is this high level or low level or --
13 MS. VON RUDEN: It's spent fuel.
() 14 15 JUDGE BECHHOEFER:
MS. VON RUDEN:
Spent fuel, okay.
Item 5.3.4 of PG&E's application 16 for recapture time or license extension, whichever you wish 17 to call it. Jill is going to seem like an expert when you l la hear me. I'm very folksy, but I must share with you that 19 the discussion previously of not representing employees in 20 truth legally you might say that legally, but my interest in 21 this request to intervene came about from a call from an 22 employee of PG&E, because I do answer the Mothers for Peace I 23 phone. If I could tape these calls, it would be wonderful.
24 Ethically, we never have, and we assure the people we don't.
25 She said there was great concern about the storage of the O ^"" ai'ev * ^ssoci^Tes' 'id-Coud Repoders 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
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b 168 1 fuel.
O 2 Another phone call I have received was from a 3 retired engineer that helped construct the liner, had said 4 that it cracked many times during construction and had to be 5 repaired during its initial construction. I've been 6 interested in this issue. I spoke to the -- what was it 7 called? State pollution Control board in Sacramento many 8 years ago on this when the reracking was being proposed, and 9 they were seeking to have state bond funding for that. I 10 was told this would be very quick because it's generic and 11 you will throw me out instantly. I hope not. I hope you 12 will listen.
13 JUDGE BECHiloEFER: Well, I might say the rule is 14 not the generic issue to be considered, but you've got to
[}
15 relate them to the plant specifically.
16 MS. von RUDEN: Now I'll get into the application 17 itself. As I said, that I don't need to repeat, just lists 18 some solutions for spent fuel, neither of which was 19 addressed by -- in responses by the NRC and PG&E, and one is 20 the repository at Yucca Mountain, and the other is the 21 monitored retrievable storage. They did not address either 22 of these solutions, but rather both referred to the ruling 23 that they are allowed to store spent nuclear fuel for 30 24 years after expiration of license on or off site.
25 I believe-that initially-I gave enough proof that O ^"" aev * ^Ssoci^Tes' 'id-Coud Reponers 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
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169 1 these other solutions, the MRS and the Yucca Mountain, no i 2 one knows. They are indefinite, they are unknown. It's an 3 irresponsible -- irresponsible on the part of the utility, I 4 think, to list them as the solution for opent fuel for the 5 extension of the license.
6 I have a report that I got from the geologist, 7 Carl Johnson, administrator of technical programs for the 8 state of Nevada at the Nevada stato project office, which is 9 the entity that was permitted to oversee work done there for 10 the state. He reviewed the earthquake near the Yucca 11 Mountain site, for example, the earthquake of 5.6 magnitude 12 on June 29th was a previously uncharted fault. There were a 13 thousand aftershocks, observations of rocks were dislodged, 14 the project geologist for the DOE says in his newspaper
[)
15 interview they haven't moved for 10,000 years or something.
16 Mr. Johnson did not find that. There were changes in ground 17 vater levels. There was one million dollars damage done to 18 the field operations building, located four miles from the 19 epicenter, showing really the nonintegrity of concrete. And 20 I am leading up to a point here. The walls cracked the full 21 height, the outer walls. The interior walls cracked.
22 Windows broke. Furniture was toppled and so forth. He also 23 specifically lists seven points of evidence in an affidavit 24 giving the opinion that Yucca Mountain should be 25 disqualified. On November 14th a letter from Governor O ^"" nev ^ ^SSoci^TeS' d-Coud Repoders 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
170 1 Miller to the Secretary of Energy documents evidence 2 supporting Mr. Johnson's opinion -- I can give you 3 copies of that, and has a report with it that details the 4 imperfections of this site.
5 on the monitored retrievable storage solution, 6 which they did not address as well, but was in their 7 original application, one of the other -- I believe it was I worded there may possibly be MRCSN which was a good way to 9 word it, because that was the truth. If you research it, it 10 steps to this site would take years and years and there has 11 not been one proposed where litigation was not initiated by 12 the people in the area or in the state.
13 So then we're left with our -- my questions on --
14 they have this 30-year permission, but what are they going 15 to do with it? Where is it going? We have no idea. They 16 have no idea. This is not their fault. They are caught in 17 a quagmire, the Federal Government that has broken contract 18 af ter contract. The spent fuel from the Manhattan project 19 is scattered in 25 states yet; it is not in a permanent 20 repository. Their options are very, very limited.
21 I have a little bit of a discrepancy, also, in the 22 year they give in their application. They cite the year 23 2uo7, and I have -- as of yesterday, I guess refueling 24 information request on Unit 1 and Unit 2. It says projected 25 date of the last refueling that can be discharged to spent O ANN RlLEY & ASSOCIATES, Ltd.
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171 1 fuel pool assumes a present licensed capacity to the year 2 2006, which I'm sure that they correspond to for me that is 3 a year's difference.
4 So my questions are what are their plans for the 5 30 years or whatever that they need to store fuel on site 6 without any guarantee at all that they can take it away?
7 They have some choices, tiering is a choico people have 8 used. I have been advised by a physicist tiering in a very, 9 very highly seismic area would be folly and, also, tiering 10 isn't the best solution because of the levels of the water 11 over the rods. Dry cast storage on site, would that be 12 advisable in a highly seismic zono? I believe that would 13 have to be discussed, so I think they're really, really 14 limited.
15 The burden of proof of safety for us lies with 16 them. They have to, as far as I'm concerned, according to 17 ~~ what is it? CFR 102.732, page 83, they have to guarantee 18 us that we're going to be safe with this fuel. They have 19 spoken to the issue that the ilumboldt plant is irrelevant.
20 To me the fact that a corporation has a primo example of 21 failure sitting there since '76, leaking into the 22 environment, granted they pump it out and have remedies and 23 it's guarded. In reviewing the Vermont case, I know this 24 point was ignored, but really the unlimited forever and ever 25 use of land that can't be used for anything probably ever O ^"" aev a ^ssoc'^Tes' 'ta-Court Reporters 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293 3950
172 1 again exists already with PG&E's direction at Humboldt.
O 2 They can assure me on paper that this liner is different. I 3 can't believe and I don't think anyone else can believe that 4 a severe earthquake would not damage a one-fourth and 5 one-eighth-inch thick, 11-gauge, steel liner, and as far as 6 -- I don't care how thick you put the concrete around it.
7 That's not a reassurance. It's not going to be contained 8 and we're going to have the same kind of mess -- and even if 9 this doesn't happen, what we're going to have and what we 10 never planned on having, and what PG&E must live in terror 11 of having, is a permanent waste dump at Diablo that they 12 will be financially and responsible for the health and 13 safety of the people in this county for the duration of
() 14 15 time. So I feel this is a contention that's valid.
I don't think that any portion of the plant here, 16 any problem at the plant here, can be labeled generic, 17 because the earth moves here, and the cliffs crumble I think 18 it's three inches a year, and I don't know if you read the 19 Nassau article of the video of the Landers earthquake where 20 it showed sections of earth moving as large as a football 21 field in a circular motion and roads bending.
22 We have technology emerging every day that will 23 give us new information and new help, and to add 15 years on 24 to create more of this waste when really no one -- the 25 Administrative Law Judge in the case in Minnesota before the Q ANN RILEY & ASSOCIATES, Ltd.
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173 1 Public Utilities Commission, Alan Kline, in his summary, O 2 statos that of all the experts that testified when there 3 would actually be a repository for this stuff is never, vnd 4 that they were restricted in the amount of years they could 5 dry cast there because that was his feeling. I cortainly 6 concur with his fooling. I think that wo, in this county, 7 are doomed to a storage facility that PG&E was not promised 8 by tho government and wo wore not promised by PG&E. Thank 9 you.
10 JUDGE BECilllOEFER: Well, has your advance of this 11 contention taken into account the section of the regulations 12 which says essentially that -- I think it says that we can't 13 look at anything for -- at least for the period of 30 years 14 beyond exploration of the license or extended licenses.
15 MS, VON RUDEN: Could I respond to that a little 16 bit?
17 JUDGE BECill!0EFER: There's a specific provision 18 which sceec to --
19 MS. VON RUDEN: Yes, I know. And they cited it.
20 JUDGE BEClillOEFER: Whether or not we would have 21 necessarily agree with it, we're stuck with it, so --
22 MS. VON RUDEN: Well, could we then address -- it 23 seems we've sat here all day and listened to the 24 commendations of PG&E as being very_ relevant, and in their 25 application as well or in their response and they weren't Q ANN RlLEY & ASSOCIATES, Ltd.
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174 1 documented.
2 JUDGE DECill!OEFER: Well, wo did not say -- we 3 didn't say they were.
4 MS. VAN RUDEN: Okay.
5 JUDGE DECilllOEFER: Wo heard --
6 MS. VON RUDEN: We heard them --
7 JUlX;E DECl!!!OEFER: We haven't ruled yet on 8 anything.
9 MS. VON RUDEN: If they're relevant, then their 10 failure should be relevant, and the portion of that 11 contention regarding their failure at llumboldt that is an 12 example of management judgment seems it should apply to this 13 caso, and that is not part of the 30-year storago 14 permission.
15 That is a separate part of the contention that 16 could be accepted. It is up to them to show proof that they 17 can keep us safe with that fuel line or some system. They 18 need to offer some system, I would think. I don't think 19 they can hido behind the 30-year ruling.
20 . UDGE DECilllOEFER: Well, it is a regulation.
21 }' 3 . VON RUDEN: I know it is. I was warned you 22 would thror me out in five minutes. I realize that.
23 "0DGE DECllllOEFER: Whether anyone else does or 24 not, it's there.
25 MS. VON RUDEN: But that's what I have to say.
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175 1 JUDGE BECilllOEFER: Okay. Mr. Repka? l O 2 HR. REPKA: The contention is inadmissible. With l l
3 respect to the long-term storage issue that's clearly marred i I
4 by the waste confidence rule and by the Vermont Yankee 5 precedent, also, with respect to the current storage at 6 Diablo Canyon, that issue is outside the scope of the 7 proceeding.
8 The current storage has been reviewed and approved 9 in other contexts, including the seismic design of that 10 storage and, you know it's simply outside the scope of this 11 proceeding. The amendment doesn't change it in any way.
12 With respect to --
13 JUDGE BECHHOEFER: Well, would the amendment 14 result in the creation of more spent fuel than you could now 15 store?
16 MR. REPKA: My last point.
17 JUDGE BECHHOEFER: Maybe that is something 18 connected.
19 MR. REPKA: With respect to the cumulative amount 20 of waste, that issue is really already addressed in the 21 existing -- the original environmental review for the plant.
22 That assumed 40 years of operation and 40 years of spent 23 fuel and 40 years of_ radiological impacts 24 MS. VON RUDEN: But you run out the year 2007, 25 which is not your 40 years that you're recapturing.
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176 1 MR. REPKA: Which is less than 40 years. The O 2 fact is, the current storage to the year 2008, I believe it 3 is, has been reviewed and approved in another licensing 4 review in another license amendment.
5 With respect to any additional storage capacity, 6 we might need to go beyond that to fulfill the complete 7 40-year operating license. That's simply not relevant here, 8 also, because we haven't proposed any such amendment to give 9 un that authorization to store fuel at this point. And at 10 the point in which we are ready to propose an alternative, 11 we will need license authorized to do so, and we'll do what 12 is appropriate at the time.
13 MS. CULVER: So knowing that you're going to
() 14 15 produce additional years of spent fuel than you have the capacity to store, you're simply saying that it's not 16 relevant how it's stored? Does the law support that? Is 17 that what you're saying? That you will apply when the time 18 comes that you run out of space for monitored retrievable 19 storage or whatever and the NRC Will say okay, you can do 20 that, too?
21 MR. REPKA: We can only speculate as to what would 22 happen and what form that storage might take and what the l 23 NRC might say about it. It's simply not an issue here.
24 MS, von RUDEN: Why was it addressed in the 25 application? I'm sorry.
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i 177 1 MR. REPKA: Beyond that, all I can say is that O 2 PG&E expects the DOA to live up to its contractual 3 obligations. The progress is being made at the Yucca 4 Mountain and we're not here to license Yucca Mountain or 5 monitor a retrievable storage facility.
6 MS. VON RUDEN But you are here to explain your 7 item on your application where you list two vague, 8 open-ended where most experts say the year 2025 will be the 9 earliest.
10 Do you not have to, in your application, deal with 11 spent fuel during the period of time of recapture? Legally?
12 I don't know that. You do not have to speak to that 13 legally.
() 14 15 MR. REPKA: The waste competence rule does not require -- stipulates that we do not have to address the 16 long-term storage issue.
17 MS. ZAMEK: What about the short-term? Have they la addressed the short-term?
19 JUDGE BECHHOEFER: Miss Hodgdon, do you have any 20 comments on this one?
21 MS. HODGDON: No. I think we've said everything 22 we have to say in our response.
23 JUDGE BECHHO'FER: Okay. Let's go on-to number l 24 VIII, which is an emergency preparedness contention. And l
25 it's my understanding at least that the only thing we could l
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178 1 look at on an emergency preparedness program in whether it's O 2 so called -- I think the words are fundamental flaw or 3 something like that.
4 Are you saying that there's a fundamental flaw, 5 and if so, based on what? That's my question to any of you 6 who are going to address this one.
7 MS. ZAMEK: Yes. We're saying that the plan is 8 inadequate and that the numerous problems that we've cited 9 in our contention show a fundamental flaw. PG&E says that 10 they're not changing anything that includes the plan, and so 11 it will, therefore, remain inadequate during the years of 12 the recapture.
13 Mr. Repka used the SALP scores, and I noticed that
() 14 15 for emergency preparedness they, at one time, got a rating of one, but since then, it's last rating went down to two, 16 and their comments were during that period of time they 17 identified numerous weaknesses in emergency preparedness 18 that revealed the problems to be chronic and longstanding.
19 The Board noted that problems from past assessment periods 20 resurfaced again, resulting in five repeat findings during 21 the October 1990 exercise. The licensee did not have a 22 corrective action program fully effective in preventing the 23 occurrence of issues identified during drills, exercises, 24 and NRC inspections. ,
i 25 I know the overall ratings of everything. They O ^"" ni'ev & ^ssoci^Tes' 'id-Coud Repoders 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
179 l
1 alwayu say it's adequate. But we disagree with that, that 2 tot a t eme nt , and for simple reasons like this they make a list 3 that's in our contentions. What do we do with the children 4 in an after-school day care? I know at my children's school 5 they have a little after-school program. They have no means 6 of evacuating these children. Busca don't run then. And 7 that's the kind of -- that's an example of something they've 8 not resolved. And I can't imagine extending the plant at ___
9 Diablo an extra 15 years without resolving some of these 10 problems.
11 Rochelle?
12 MS. DECKER: In addition, in atction S.4, exposure 13 from releases during postulated accidents, PG&E has chosen 14 to discuss when one of the four parameters of 10 CFR 100.(4) 15 population growth. They site studieu based on speculation 16 by the California Department of Finance projections through 17 2025. While there may not be an incredibly large population 18 growth at present, urban flight is a new phenomenon in 19 california and must be taken seriously as our yet relatively 20 printine communities continues to be impacted from 21 Californians seeking refuge from inner city problems and 22 Easterners seeking refuge from the cold winters and humid 23 summers.
24 In addition, with increasing population and 25 current budget cuts in this state and county personnel are s
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180 1 constantly being reduced, and budgets stretched to just 2 maintain daily services. If a major emergency was added the 3 result might be quite different from those originally 4 expected in our paper plan. In fact, as mentioned in 5 Contention IX, the nuclear plant at Turkey Point had an 6 approved NRC, FEMA, and Florida State emergency plan in 7 place that considered earthquake -- or hurricanes. Excuse 8 me.
9 However, when Hurricano Andrew came ashore to use
! 10 an old quote, the paper plan was not worth the paper it was 11 printed on. In fact the Turkey Point plan had many, quote, 12 " fundamental flaws."
13 The other criteria in 10 CFR 100 are, one, type of 14 accidents postulated; two, the radioactivity release 15 calculated for each accident; and three, the assumed 16 meteorological conditions are mentioned in PG&E's original 17 application, but not in PG&E's response. It is the San Luis 18 Obispo Mothers for Peace belief that these crf.teria are 19 directly related to emergency preparedness. While_the NRC 20 in the past has not seen fit to consider a si.nultaneous 21 earthquake that could trigger a radioactive release at 22 Diablo Canyon Nuclear Power Plant, the San Luis Obispo 23 Mothers for Peace can only hope that this Atomic Safety 24 Licensing Board will some day see the logic in these 25 concerns.
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181 1 For instance, at Turkey Point the fire protection t O 2 was going. They had lost off-site power. There were no I
l 3 radios, lights, and people could not put gas in their cars. '
4 The pumps worked with electricity. They lost 5 communication for over an hour. They lost 10,000 customers ;
6 because they were left homeless. They had a spare parts 7 building such as PG&E's worth $10 million with an $80 8 million inventory, and they're still looking for the parts.
9 Hurricane Andrew at Turkey Point, they had two 10 hours, if not longer, to know that a hurricane was going to 11 como ashore. In California we don't have any warnir.g 12 whatsoever if there's going to be an earthquake. The NRC 13 has decided in the past and hopefully will not continue to 14 decide that we cannot consider a simultaneous earthquake
(}
15 that can trigger an accident at a nuclear power plant or a 16 simultaneous carthquake and an accident in this community in 17 which bridges are out, communications are out, and there is 18 no communication between the plant and the site. If we are 19 given an additional 13 to 15 years, we have an additional 13 20 to 15 years to worry about an earthquake that could cause 21 this type of accident.
22 JUDGE BECHHoEFER: Well, are we, this Board, not l
i 23 bound by the previous Commission ruling? Wouldn't it have 24 to be the Commission that changed its mind?
25 MS. BECKER: Absolutely.
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1 JUDGE BECHHoEFER: Rather than us? I mean --
2 MS. DECKER: Absolutely, but I believe this Board 3 could recommend to the Commission, especially after s 4 Hurricane Andrew, that they rethink this position.
5 JUDGE BECHHOEFER: Mr. Repka?
6 MR. REPKA: I think what we've just heard is a 7 combination of Contentions VIII and IX, so I'll take them 8 one at a time briefly.
9 Contention VIII, the emergency preparedness 10 general contention, as I call it, there really is a 11 requirement in order to litigate that in any NRC proceeding, 12 much less this one, of a finding of a fundamental flaw. We 13 agree with the NRC staff on that point and we agree with the 14 Board, and there's no basis for such a finding. In fact, in
[}
15 the last two emergency exercises referenced by petitioners, 16 FEMA and the NRC have concluded that Diablo Canyon is in 17 compliance with the emergency planning requirements.
18 With respect to the second contention, which is 19 the earthquake emergency plan and contention, Contention IX, 20 based on Hurricane Andrew, as we said in our papers, this 21 issue has been litigated and is barred here by collateral 22 estoppel. It has been to the Federal Courts and there 23 really is nothing more to be said on the issue.
24 MS. BECKER: I was actually speaking only to 25 Contention VII. Hurricanes are just part of emergency C ANN RlLEY & ASSOCIATES, Ltd.
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183 1 preparedness. But I do have separate items on the next O 2 contention.
3 JUDGE BECHHOEFER: Well, Miss Hodgdon, do you want 4 to talk at least on VIII? I guess we'll go around again on 5 IX, but --
6 MS. HODGDON: Well, VIII, I agree with Mr. Repka, 7 VIII concerns emergency preparedness generally and IX l
8 concerns the earthquake and the allegation that hurricanes 9 in Florida had something to do with emergency planning and 10 earthquakes in California.
11 So I think that IX has been addressed, but as 12 regards contention VIII --
13 JUDGE BECHHOEFER: Well, you're welcome to address 14 them both if you want.
15 MS. HODGDON: Well, I think I'll go ahead and 16 address them both.
l 17 JUDGE BECHHOEFER: Yes.
18 MS. HODGDON: As regards Contention VIII, as the 19 Staff pointed out, that there's no obligation even of a 20 fundamental flaw here and in fact there is none. There's no 21 basis for this contention.
22 As regards IX, that's been litigated. It' 23 collateral estoppel. It's res judicata. The Commission has 24 long taken this position from the time of the San Onofre 25 decision which was followed in their various decisions on C ANN RlLEY & ASSOCIATES, Ltd.
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1 184 1 this matter. It just can't be litigated here. That's all
_7s
-- 2 that.
3 JUDGE BECHHOEFER: Okay. Do you all have 4 something further on IV? They sort of got combined 5 together.
6 MS. BECKER: Yes.
7 JUDGE BECHHOEFER: But you had something more to 8 say on IX?
9 MS. BECKER: I do. The San Luis Obispo Mothers 10 for Peace are not here to relitigate the position that 11 PG&E's emergency plan should account for the potential 12 impact for an earthquake that could either cause -- be 13 caused or occurred coincidentally with an accident at the 14 nuclear power plant.
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15 We are here because we live near this nuclear 16 plant, and we are asking this licensing Board to consider 17 new seismic information that continues to demonstrate the 18 uncertainty surrounding the nature and ground acceleration 19 of earthquakes in California. We are in no way asking to 20 relitigate an old issue. There has never been a discussion 21 nor a ruling on whether Diablo Canyon's design construction, 22 redesign and reconstruction would guarantee that this 23 nuclear plant, largely built in the late '60s and early '70s 24- and subject since then to salt water and salt air erosion, 25 could withstand a 7.7 magnitude earthquake if allowed to Q ANN RILEY & ASSOCIATES, Ltd.
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185 1 operate for an additional 13 to 15 years. There has never 2 been litigation on the effects of an earthquake regarding 3 aging or fraudulent parts or thermal lag. It was PG&E who 4 applied for this extension and we are responding to their 5 assertion that -- quote, "that the proposed changes do not 6 involve significant hazard considerations.
7 The San Luis Obispo --
8 JUDGE BECHHOEFER: Well, we haven't quite gotten 9 to that part yet. That's still another contention.
10 MU. BECKER: Well, we consider that a hazard. An 11 earthquake. It's kind of hard not to consider it one.
12 The San Luis Obispo Mothers for Peace believes 13 that allowing PG&E to operate a nuclear plant that sits two 14 and a half miles from a major active earthquake fault for an 15 additional 13 to 15 years does indeed involve significant 16 hazard considerations. For PG&E to boldly state that there 17 are no new issues to review and no environmental impacts on 18 the public's health and safety is pure conjecture.
19 The NRC Staff in their argument that Contention X 20 is not admissible -- I guess that's probably IX -- is not 21 admissible reminds this licensing Board that quoted the 22 staff's proposed determination of no significant hazards-23 consideration may not be occurred in an adjudicatory 24 proceeding as 10 CFR, section 5058(B) specifically states.
i 25 No petition or other requests for review or hearing on the I
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186 I ntaff's significant hazards consideration determination will O 2 be entertained by the Commission. The Staff's determination 3 is final, subject only to Commission's discretion on its own 4 initiative to review the determination. And what we are 5 asking is that this licensing Board look seriously at this 6 issue and recommend to the Commission that they do rehear 7 it.
8 JUDGE KLINE: Was that response addressing 9 Contention IX or was that a generalized --
10 JUDGE BECHilOEFER: Or X? Or X. We were still on 11 IX.
12 MS. BECKER: What was IX? Sorry.
13 JUDGE BECHiiOEFER: Nine was emergency planning.
14 MS. BECKER: Emergency preparedness.
15 JUDGE BEClll10EFER: That's what I thought we were 16 going back to you for.
17 MS. DECKER: Oops, sorry. That was IX. Not X.
18 JUDGE KLINE: That response was for IX 19 MS. BECKER: Right. Because X is justification.
20 JUDGE BECilllOEFER: Maybe we should take a quick 21 break.
22 MR. REPKA: Well, if I could respond to that.
23 I heard three things in there. One was Contention 24 IX as drafted, the issue of emergency preparedness and 25 earthquakes. That issue is barred by collateral estoppel, O ^"" ni'av & ^Ssoci^Tes' 'ta-Court Reporters 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
l 187 l
1 res judicata. With respect to an issue of new seismic data l 2 that I think I heard in there, that is a new issue, it's not 3 one of the drafted contentions, and there's been no basis 4 offered for such a contention. And the third thing I heard 5 in there was what I thought of as Contention X and no --
6 JUDGE BECHHOEFER: If we get to X, let's hold that 7 until --
8 MR. REPKA: It's a short answer. 5058 (B) 6, end of 9 story.
10 JUDGE BECHHOEFER: Why don't we take quick break.
11 JUDGE SHON: I think one of the difficulties --
12 just one moment. The Mothers for Peace doesn't see. --
13 well, it's just that the Mothers for Peace doesn't seem to 14 be talking about the same thing as the Staff and the 15 applicant -- or the licensee are in Contention X. Their 16 title for the contention would be different, I believe.
17 Just look at it over the break and see whether your title is 18 the same as theirs, would you?
19 MS. DECKER: Okay. Because mine's justification.
20 (Recess taken.)
21 JUDGE BECHHOEFER: Okay. Back on the record.
22 The next contention is this number X, and this one 23 I have some legal problems with, and I wanted to ask whether 24 Mothers for Peace was trying to raise a question falling 25 within the so-called-no significant hazards finding that the Q ANN RlLEY & ASSOCIATES, Ltd.
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188 1 Commission has proposed, has an issue to propose findings is 2 my understanding.
3 Let me ask the Staff whether that's still in the 4 proposed stage, that no significant hazards finding.
5 MS. HODGDON : Do you mean to ask whether the 6 Staff has made a final finding ano --
7 JUDGE BECHHOEFER: Whether the Commission or the 1
8 Staff has made a final finding, yes, in this case. '
9 MS. HODGDON: No. The Staff hasn't done that yet.
10 JUDGE BECHHOEFER: Okay. I just wanted to find 11 out the status of that.
12 MS. HODGDON : If that contention is related solely 13 to no significant hazards, we are -- we don't understand how 14 we, meaning this Board, can consider it, because there's the
)
15 specific statement that it's beyond our jurisdiction in the 16 rules, and we're sort of stuck with that. We would be 17 prepared, however, to certainly request that the Staff 18 consider this contention as another comment received in 19 response to the request for public comment on the proposed 20 finding. We would certainly do that. And the Staff could 21 consider this as part of its consideration of no significant 22 hazard.
23 MS. HODGDON : The Staff will consider all of the 24 contentions, Judge Bechhoefer.
25 JUDGE BECHHOEFER: I see. But this one in Q ANN RlLEY & ASSOCIATES, Ltd.
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189 I particular.
'- 2 MS. HODGDON: This one, too.
3 JUDGE BECHHOEFER: I think it's beyond our 4 jurisdiction and the Staff is the ornly one that can do 5 anything about that.
6 JUDGE S!!ON: I guess one just sort of refer 7 the others, doesn't it?
8 MS. HODGDON: It seems to be a summary sort of, 9 but the Staff will address it, certainly.
10 JUDGE BECHHOEFER: It seems to focus on the no 11 significant hazards, 12 MS. ZAMEK: I don't understand -- in the Federal 13 Register where it asks those questions --
14 JUDGE BECHHOEFER: Yes.
15 MS. ZAMEK: -- that's what we were responding to.
16 JUDGE BECHHOEFER: Yes.
17 MS. Z AF',K: And why is it that we can't do that?
18 JUDGE SECHHOEFER: Because there is a section of 19 the rules. I think it's 5058 --
20 JUDGE SHON: I think the short answer is yes, you 21 can respond to that simply by responding to the Commission, 22 but this particular Board does not have jurisdiction to -
23 MS. ZAMEK: Now, has it already been determined by 24 the Commission that it's a no significant hazards amendment?
25 Has that been determined already?
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190 1 1 -JUDGE SHON:_ No. Miss Hodgdon-just told us that.
O7 2 MS. 3AMEK: I just wanted-to clarify that.
-3 JUDGE BECHHOEFER: That's-the question I asked.
4 MS. ZAMEK: Okay.
5 JUDGE SHON: And she says your comment will be 6 considered.
7 JUDGE BECHHOEFER: Let me read this. This is 8 section 5058(V)6. It says, "No pet ;: r . u- or other request 9 for review of or hearing on'the Stalf's significant hazards 1
10 consideration determination will be entertained by the 11 Commission. The Staff's determination is final subject only 12 to the Commission's discretion on its own initiative to 13 review the determination."
14- But I might say that, I think,-deprives us of any-
-15 jurisdiction to consider the matter, to consider that 16 particular contention, and we have actually requested the 17 Staff to take that contention, at least, into account-in 18 making its recommendation.
19 I might note,:also, that the notice for 20 opportunity of hearing in-this proceeding noted -- and while 21 it's not in the rule itself, I don't think, the commission.
22- -itself, I think, has-to make the finding in'a situation of 23 this sort where a request _for a hearing has been filed. .I 24 think that is'in so many -- yes. Well, the --'let.me read:
25 from the notice of opportunity for hearing in this-case.-
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191 7'3 1 It's not in the rules, but it says, "If a hearing is
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2 requested, the Commission will make a final determination on 3 the issue of no significant hazards consideration."
4 MS. HODGDON : Agreed.
5 JUDGE BECHHOEFER: I think that means the 6 Commissioners.
7 MS. HODGDON: No, it doesn't. The Commission hae 8 delegated that function to the Staff. That may be 9 confusing, but I'm quite clear on that. The Commission has 10 delegated that function to the Staff. It means the Staff.
11 MS. CULVER: So the Commission can't review that?
12 MS. HODGDON: No. The ;ommission can review it, 13 but the Commission has delegat',d that f.ur -tion to the Staff.
/'N 14 The Staff will make a final finding and the Commission will V
15 look at it if it so -- if it -- it has the discretion to
,,16 lookat it if it wishes.
17 JUDGE I!ECHHOEFER: Well, it was my understanding 18 -- and when it says, "The Commission will make the final,"
19 that means Commission as distinguished from Staff making it 20 where there's no request for a hearing, because otherwise 21 the stete of the -- if a hearing is requested would be 22 irreleva'it. The Staff always makes -- then that statement 23 in the notice of opportunity will be irrelevant.
24 MS. HODGDON: No. That's not -- no. No. That's 25 not the way it is. You don't make a final. finding unless
,m
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i 192 1 there's a request for a hearing, and that's why it reads 2 that way.
.3 JUDGE BECHHOEFER: I see. Okay.
4 MS. HODGDON: Where there's no request for a 5 hearing, a final finding need not be made.
6 JUDGE BECHHOEFER: I guess that's true, because 7 nobody would be opposing it.
8 MS. HODGDON: That's right. That'r it.
9 JUDGE BECHHOEFER: Well, in any event, I had read 10 this to be the Commissioners, but maybe it isn't.
11 In any case, the Staff -- we've asked the Staff to 12 make sure your Contention X is included in their review 13 since we don't -- that's the only contention we're going to 14 rule on, and we're going to say we don't have jurisdiction
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15 on that one, and I don't think there's any -- whether it has 16 merit or not, we can't rule on it.
17 Well, let's turn to the last of the contentions 18 Let me get back here to the contentions. It's number XI.
19 Now, as I understand the regulations in part 51, 20 with respect to EIS's, there are certain types of action 21 where an ETS is required. There are other types of actions 22 where an EIS never must issue. And then there's a much 23 larger category where an environmental assessment must t 24 issue, and the environmental assessment then decides whether 25 to go the EIS route or to just issue the essessment alone.
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193 1 T<t.u ask the -- the Staff, I take it, has not yet issued 2 an asa sament in this case; is that correct?
3 MS. HODGDON: No. I think we plan to very 4 shortly.
5 JUDGE BECHHOEFER: Yes. But as of this date --
6 MS. HODGDON: No, we have not yet.
7 JUDGE BECHHOEFER: Right.
8 Now, my question is, this is not one of the types -
9 of action which you listed specifically for EIS's. That 10 being the case, I wondered what the Mothers for Peace --
11 what your intentions were about litigating this contention.
12 I think it would be -- we certainly I don't think could do
' 13 anything until the Staff issues its assessment.
14 Now, I leave open the question whether -- after 15 that occurs, whether a further contention could be accepted 16 on a late-find basis, but with part of the justification 17 being the assessment had been issued late. The Commission 18 sometimes set forth that as over proceeding.
19 But the question is, I'd like to find out whether 20 the Mothers for Peace interprets our rules differently, for 21 instance, on requiring an EIS.
22 MS. BECKER: I think we do.
23 JUDGE BECHHOEFER: Because if so, I'd like to --
24 MS. BECFZR: You can correct us if we're wrong, 25 bit I think that we do in our reading of the citations that g ANN RlLEY & ASSOCIATES, Ltd.
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-~ 1 were in PG&E's response. What we originally responded to
\/ 2 was the justification sect ion on PG&E's original application 3 and the NEPA issues that we find involved there.
4 PG&E asserts on page 4 of its application,-quote, 5 "The results (of the Diablo final environmental statement 6 and addendum and the environmental report and its 7 supplement) indicated that no additional significant 8 environmental impacts beyond those originally addressed are 9 involved with 40-year operation," close quote.
10 On page 10 of its response to the San Luis Obispo 11 Mothers for Peace petition, PG&E states, quote, " Petitioner 12 has not explained with requisite specificity and basis why 13 the proposed amendment is is a ' major federal action' 14 significantly affecting the quality of the human 15 environment."
16 PG&E has chosen to cite 10 CFR 5120(A) and'(B) to 17 convince this Board that the NRC Staff is not required to 18 prepare an EIS assessing the environmental impact 19 for their proposed amendment for license extension.
20 After reading and rereading 1this code, the San 21 Luis Obispo Mothers for Peace are convinced that an EIS is ,
22 in fact required. According to 5020 (A), licensing and 23 regulatory actions requiring an environmental impact 24 statement shall meet at least one of the following criteria 25 One, the proposed action is a major-federal action Q ANN RILEY & ASSOCIATES, Ltd.
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1 195 I significantly affecting the quality of the human environment 2 and, two, the proposed action involves a matter which the 3 Commission, in an exercise of its discretion, has determined-4 should be covered by an environmental impact statement.
5 From the standpoint of the residents living within 6 15 miles of this nuclear plant, a license extension which 7 adds 13 to 15 years of additional life to a nuclear plant 8 largely built and constructed in the late '60s and early 9 '70s, sited two and a half miles from a major active 10 earthquake fault with aging components that have been 11 subject to environmental degradation from salt water and air 12 -- salt air exposure is indeed a matter that could 13 significantly affect the quality of the human environment.
14 Furthermore, we strongly believe that this
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15 distinguishes PG&E's request for extension of its license 16 for Diablo Canyon Nuclear Plant from other plants that may 17 have received, quote, "what is generally referred to as a CP 18 recapture action."
19 Additionally, PG&E arresting use that, quote, 20 " amendment of an operating license to recapture" -- that's 21 in quotes -- the construction period and allow plant 22 operation for a full 40-year term is not specified in 10 CFR 23 5120 (B).
12 4 "From the San Luis obispo Mothers for Peace-25 reading of that code, discretion is left to the Commission Q ANN RILEY & ASSOCIATES, Ltd.
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l 196 1 regarding, two, issuance or renewal of a full power or 2 design capacity license to operate a nuclear power plant --
3 nuclear power reactor," end quote. We strongly believe that 4 for the above-stated reasons our statement meets 5150(A) and 5 (B) and requests that this licensing Board recommend that 6 the Commission use their discretion to require an EIS in the 7 current PG&E request for license extension. Regarding 8 PG&E's response to the need for power in PG&E's original 9 application they stated on page 2 -- this is all under their 10 justification, so I just through it all in together -- that, 11 quote, "It is prudent and beneficial to keep this reliable 12 source of power in operation especially in light of the 13 projected growth of California's electricity demand. Not i 14 only is this pure conjecture on the part of the utility, but 15 PG&E's own response, they themselves argue, that, quote, 16 "Need for power is not admissible. The San Luis Obispo 17 Mothers for Peace believe that the language of the NEPA 18 requirement is such that unless the Commission determines 19 otherwise, the Atomic Safety and Licensing Board has the 20 authority to decide this need -- if this argument is 21 warranted. Indeed, circumstances have changed in California 22 since PG&E's construction permit and operating license was 1 23 granted, and this is exactly the type of situation that NEPA 24 would require an agency to look into."
25 Finally, if it is admissible for the San Luis lO ^"" ai'av a Associates 'ta.
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l 197 1 Obispo Mothers for Peace to discuss the - if it's 2 inadmissible -- excuse me. I'll start over. Finally, if it 3 is inadmissible for the San Luis Obispo Mothers for Peace to 4 discuss California's need for power, and we do not believe 5 this to be the case, that it is only proper that PG&E not be 6 allowed to bolster its application before this 7 licensingBoard with any, quote, "need for power arguments."
8 In addition, today we have a representative from 9 the California Public Utilities Commission who also argues 10 against PG&E's justification on need for power, cost 11 benefits, and other answers that they have given to, quote, 12 " things as far as cost savings of the Diablo Canyon Nuclear 13 Power Plant. PG&E indicates that Diablo Canyon is expected 14 to be cost competitive with new power plants in the year 15 2008 and beyond and that granting the recapture will, quote, 16 " reduce future electric rates." However, PG&E has not 17 presented any datas to support this contention. Again, they 18 state Diablo Canyon is expected to be significantly more 19 expensive than the cost-of replacement power through the 20 year 2016.
21 Furthermore, prices for Diablo's generation after 22 2016 have not been set by the California Public Utilities 23 Commission. During the portion of the recapture period 24 where Diablo Canyon's prices are known 2008 to 2016, 25 operation of Diablo Canyon will increase ratepayer costs by Q ANN RlLEY & ASSOCIATES, Ltd.
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1 billions of dollars.
O 2 In addition, the California Public Utilities 3 Commission, the California Energy Commission and PG&E itself 4 have all expressed concerns regarding commitments to 5 resources in advance of need. Future technologies may be 6 much less expensive than currently available resources.
7 However, in this instance, PG&E is seeking in 8 its -- I'm having a hard time talking. I'm thirsty -- an -
9 extension for Diablo Canyon more than 15 years before its 10 existing license expires. PG&E also errs in its assertion 11 that the base load operation of Diablo Canyon is beneficial 12 to its ratepayers. In fact, PG&E itself has complained of 13 an excess of base load resources and asserted a need for far 14 greater operational flexibility.
(
15 PG&E wants to require all new generation which 16 would be operating during the period of the recapture to be 17 dispatchable by the utility. Excess base load generation 18 causes PG&E to have too many resources operating at times of 19 low system demand. This limits the ability of PG&E to take 20 advantage of low-cost, spot energy purchases. It is also 21 causes operating problems because of the need to have some 22 units available to follow load. Replacing Diablo Canyon 23 with resources which have greater operational flexibility 24 would resolve these problems, lowering ratepayer costs.
25 However, current PG&E resource plans indicate that the ANN RILEY & ASSOCIATES, Ltd.
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199 1 majority of new demand needs will be met by conservation, 2 which PG&E leads the nation in, and other demands side 3 management programs as well as spot purchases. Resources is 4 not a detriment to PG&E ratepayers. If they have lower 5 costs than Diablo Canyon and provide greater operation 6 flexibility.
7 PG&E asserts that granting a recapture will 8 significantly reduce air emissions. PG&E assumes that 9 Diablo Canyon will be replaced by 100 percent gas fired 10 generation. As mentioned above, current resource plans 31 indicate that the majority of new resources will be 12 designed, something, side management. When geothermal and 13 spot purchases. Not gas fired. Little, if any, increase in
() 14 15 air emissions would occur if Diablo Canyon were replaced by will by these resources. The high cost of Diablo Canyon 16 outweighs any air emission benefits it may have compared to 17 other options, 18 PG&E has not shown that there will be more jobs 19 and tax revenues from continuing to operate Diablo Canyon 20 from building and operating replacement resources. In 21 addition, the rate increase that would result from granting 22
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the recapture will have a negative impact on the state and-23 local economy. If Diablo Canyon is just one cent kilowatt 24 hour more expensive than other options, PG&E'S rates will 25 increase by over $140 million annually, over the recapture Q ANN RILEY & ASSOCIATES, Ltd.
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200 1 period, Diablo Canyon is expected to increase PG&E rates by 2 billions of dollars. PG&E's rates are already 35 percent 3 above the national average.
4 PG&E has not provided the NRC with the information 5 needed to accurately assess justification for the license 6 amendment. In particular, PG&E's application relies on the 7 four benefits listed below as justification for extending 8 their operating license for Diablo Canyon. Cost savings, -
9 need for base load generation, air emission reductions, 10 state and local benefits.
11 As discussed above, none of these benefits are 12 expected to occur nor has PG&E presented any evidence to 13 support its claims. Quite the opposite will occur.
14 Extending the operation of Diablo Canyon is expected to 15 increase PG&E's rates.
16 One of the conditions under NEPA is that you 17 discuss alternatives to power sources, and PG&E is not a 18 cheap alternative.
19 JUDGE BECHHOEFER: That's only if you have to 20 issue an EIS.
21 M9. BECKER: Right. So I think this Board needs 22 to know the full story, and I don't think PG&E's given the 23 full story. We do have a representative from the PUC here 24 today if you'd like to ask him any questions.
25 JUDGE BECHHOEFER: Well, this isn't an evidentiary O ^"" ai'av ^ ^SSoc'^Tes' 'ta-Court Reporters 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
201 1 hearing, so I guess that wouldn't be too appropriate. I'm 2 going to ask you, though, just conceptually, is the plant.
3- not going to be written off in the initial period of 4 operation so that their depression would be essentially zero 5 for the nuclear? Maybe I should ask the applicant that.
6 MR. REPKA: Number one, I don't think that's an 7 issue before the Board, but --
8 JUDGE BECHHOEFER: Well, I didn't say it was, but 9 in terms of lower costs. You advertised lower costs.
10 MR. REPKA: Depreciation is -- it's not based on 11 the CP standards -- or the CP recaptured.
12 Rates under the rate structure for the plant, the 13 rates are not based on depreciation. It really is not an
() 14 15 issue germane to the proceeding of the Board ~.
MS. BECKER: Unfortunately, PG&E brought it up.
16 JUDGE BECHHOEFER: Now, the EIS issue we can't 17 consider, but the remaining part I'm not sure that we can 18 consider all aspects of that.
19 MR. REPKA: Let me address those --
20 JUDGE BECHHOEFER: But in terms of the fact that 21 there were representations made that would lower costs. I l' 22 was just wondering if that was because of no more 23 depreciation during the recapture period.
24 MR. REPTA: Frankly, I'm not-prepared to comment 25 on that right now.
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202 1 JUDGE BECHHOEFER: That in itself would not be an 2 issue, but just as background, it might be.
3 MR. REPKA: On the need for power issue, I would 4 reiterate it's not an issue before the Board. The letter 5 that the petitioners are reading from is not representative 6 of the opinion of the California Public Utilities 7 Commission.
8 The petitioners do not represent the Commission, 9 and it really is not a matter before the Board, and I don't 10 think it's something that Board needs to address.
11 On the prior issue on the EIS, the fact is an EIS 12 is not required for this amendment. The NRC Staff routinely 13 issues CP recapture amendments with environmental 14 assessment.
15 That was the precedent in the Vermont Yankee case 16 on CP recapture in which an EIS contention would be not ,
17 admissible. The fact is the original licensing review for 18 the plant was based on 40 years of operation. The 19 environmental effects were based on 40 years, so nothing in 20 this amendment -- there's nothing in this amendment that's 21 not enveloped by the original environmental review.
22 I understand the distinctions we made earlier 23 between what was authorized and what was approved. What was 24 analyzed and reviewed.- But the fact is the environmental 25 report and the environmental state were based on 40-year
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l 203 1 presumption, and it had to be that way, because the 7-(- 2 application was for a 40-year license and there was no 3 reason to expect or at least hypothetically an operating 4 license could have issued at any point thereafter, so it 5 could have been the -- the original license could have been 6 for 38, 39 years, whatever, even under the old method of 7 calculating the date for expiration of the license.
8 JUDGE BECHHoEFER: Is there any significance to 9 the fact that there are certain changes, some of which you 10 have advanced in terms of population? You've provided some 11 new estimates or new figures in your application, and would 12 that change things perhaps?
13 MR. REPKA: Well, those are the kinds of things 14 not we're obligated to put into our environmental report, 15 and the Staff will look at in an environmental assessment.
16 The fact that they're there and the Staff may or may not 17 address it in the environmental assessment does not support 18 the proposition that an EIS is required. It simply doesn't 19 follow.
20 JUDGE BECHHoEFER: Well, would it support maybe 21 not at this stage, but at the time the Staff issues its 22 environmental assessment, would not this type of thing 23 warrant perhaps a late file contention saying you were 24 wrong, Staff; there should be an EIS? Would not that be 25 admissible assuming the proceeding is going on for any other C ANN RILEY & ASSOCIATES, Ltd.
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204 1 reason?
2 MR. REPKA: It would be admissible with the 3 requisite basis and specificity, of course, and in addition 4 to that, of course, it would have to meet the new threshold 5 standard for contentions.
6 The mere fact that there may have been changes in 7 de3ographics does not lead to the conclusion that there 8 should be an EIS or even a change in the conclusion of the 9 original environmental statement. Changes over time were 10 anticipated and expected. The environmental report in this 11 amendment is more along the lines of a progress report. Are 12 we within that envelope? And I don't believe there's any 13 basis to believe that we're not.
14 JUDGE BECHHOEFER: Right. But all I was trying to 15 establish is if we should not decide that until the Staff 16 issues its EA, it would be presumptuous to accept any 17 contention at all concerning an EIS, but after that time, 18 there would be adequate specificity or adequate basis, 19 perhaps a contention might be warranted. Maybe not 20 meritorious, but at least warranted.
21 MR. REPKA: I think the Commission's rules are 22 clear. We can't rule out the possibility of delay file 23 contention on a--new Staff review document and environmental-24 assessment, but I say that with the added cannion that the 25 information in the environmental report is available at this Q ANN RILEY & ASSOCIATES, Ltd.
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- 1- time. The environmental assessment will speak for itself, j 2 and there will remain the requirements of good cause and for 1
3 a late file contention and for basis --
l 4 JUDGE BECHHOEFER: That's true, and I think the 5 Commission when it issued its new contention rules said that 6 contentions first could be filed under the -- based on what 7 the applicant submitted -- must be filed, but could be 8 amended upon showing good cause, and et cetera, upon later 9 submission of Staff documents. I think that is one thing 10 the Commission pointed to.
11 MR. REPKA: I do not disagree with it.
12 JUDGE BECHHOEFER: Right. I'm just paraphrasing.
13 I'm not -- in fact, I have the statement here if you want 14 to -- I don't think there's any disagreement on what they
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15 said. So that one we won't rule on now, but it may be that 16 we may find it to be premature until after the Staff issues 17 its assessment one way or the other. And of course if the 18 Staff, in its assessment, decided to issue an environmental 19 '
impact statement, your contention would be moot. If they 20 didn't decide, then you'd have to decide whether there's 21 sufficient grounds to contest the Staff's assessment.
22 I presume that the Mothers for Peace would be sent 23 a copy of the Staff's assessment; is that correct? Or at 24 least informed that it's been issued.
, 25 MS. HODGDON: Yes. That's correct. '
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l 206 gg 1 JUDGE BECHHOEFER: So we can look at it in the
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2 public document room.
3 MS. HODGDON: Yes. That's correct. Yes.
4 However, I -- is it --
5 JUDGE BECHHOEFER: We would like to hear from you, 6 too, on this one.
7 MS. HODGDON: If it's my turn. It's Staff's turn?
8 JUDGE BECHHOEFER: Yes. I guess so. Did you have 9 anything?
10 MR. REPKA: I would just reiterate that even when 11 an environmental assessment comes out, need for power will 12 be precluded by the Commission's regulations, so with that, 13 I'll turn over to the NRC Staff.
14 MS. HODGDON : The need for power issue is 15 certainly not admissible here.
16 With regard to the environmental impact 17 statement, the allegation, the Board in Vermont Yankee held 18 that such a contention was not admissible because you had to 19 say what the risk was and what would cause an environmental 20 impact -- what would result in the need for an environmental 21 impact statement in a situation where one is not required 22 otherwise and not mutually issued, and they mentioned but 23 some 50 or 60 of these amendments have been issued and Staff 24 never has found a need to issue an environmental impact 25 statement. They've always gone with an environment C' - ANN RlLEY & ASSOCIATES, Ltd.
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,f-- 1 environmental assessment. )
2 But the thing that I'm_saying here is I don't 3 think that the Board should hold this contention in abeyance 4 waiting for the staff's environmental assessment. I do not 5 believe that this contention is admissible.
6 Certainly the -- whatever the Staff does with 7 regard to its environmental obligations, the petitioner can 8 file a late filed contention at that time and, of course, 9 there would be good cause to the extent that there is good 1
10 cause for the filing. I don't think that the Board should i 11 hold this contention in abeyance if it's ruling on the 1 l
12 others. I 13 MS. BECKER: May we speak to that?
/ 14 JUDGE BECHHOEFER: Yes.
15 MS. BECKER: This is an issue that PG&E brought up 16 in its original application, and our fear is that there's 17 really no hurry for this. The 13 to 15 years is down the 18 road, and our fear is that after we have Staff's ruling and 19 appeals and everything else and you've.already made your 20 decision to try to bring this back again, it's going to be a 21 whole lot tougher for us than waiting for the Staff's 22 decision, getting that out of_the way, and then going on 23 with our contentions. We've just found this to be the-case 24 in the past. You know, we'll put you off until later and 25 then later comes around and everything else is a foregone Q ANN RILEY & ASSOCIATES, Ltd.
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208 1 conclusion.
2 We didn't bring this up.- PG&E brought this up.
3 We responded to it in a timely basis. We put as much 4 information as we could into it. We believe that it's a 5 valid issue. We believe that it is something that's needed 6 to go along with the rest of the contentions and the rest of 7 the ruling before this licensing Board that it should be 8 something that has been taken care of before everything else 9 is heard.
10 MR. REPKA: I would like to respond to that.
11 JUDGE BECHHOEFER: Yes.
12 MR. REPKA: I think I can accept the proposition 13 that the Board should rule on the contention as stated which
() 14 15 is that there should be an EIS, and that contention can be ruled on based on the precedents and based on the showings 16 that have been made. That, of course, would not prejudice 17 later rights to file a late filed contention based on new 18 information. But there's no reason this Board can't rule on 19 the contention as stated, which seems to be a fairly bald 20 assertion that there needs to be an EIS.
21 JUDGE BECHHOEFER: I guess we've finished all the 22 contentions.
23 MS. ZAMEK: Oh, wait. . Wait, I'm holding my place 24 here.
j 25 JUDGE BECHHOEFER: Okay, i
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209 ll MS. ZAMEK: Can I add something?
2 On CFR 5195(A), there's a part that says --
3 JUDGE BECHHOEFER: Hold on. Let me get it.
4 MS. ZAMEK: Okay.
5 JUDGE BECHHOEFER: Okay.
6 MS. ZAMEK: About halfway down on that first 7 column. "Unless otherwise determined by the Commission, a 8 supplement on the operation of a nuclear power reactor will 9 not include discussion of need for power or alternative 10 energy sources or alternative sites or of_any aspect of the 11 storage of spent fuel for the nuclear power reactor within 12 the scope of the generic determination," blah, blah, blah, 13 but it seems to me unless otherwise determined by the 14 Commission, so it seems like you could do it. The
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15 Commission could consider these issues. Am I right?
16 JUDGE BECHHOEFER: I think the commission -- as 17 such, the Commission certainly could. I'm not sure we can 18 or not.
19 MS. ZAMEK: Okay.
20 JUDGE BECHHOEFER: But when we consider this 21 contention, this is one of the things we'll look at.
i L 22 MS. ZAMEK: And --
23 JUDGE BECHHoEFER: Because often when it says the i
24 Commission,-it doesn't mean this part of the Commission.
25 MS. ZAMEK: 'Right. I understand.
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r 210 1 Do you -- I'm looking for my NEPA stuff. Are you 2 allowed to consider the economic issue under NEPA? Because 3 the meaning is -- is it cost effective to operate this plant 4 in these extended years?
5 JUDGE BECHHOEFER: I think the answer to that 6 inquiry is a little bit complicated, because if economic 7 issues are related to the environment in some way --
8 MS. ZAMEK: Well, it said that under --
9 JUDGE BECHHOEFER: -- then possibly we could 10 consider them. But purely economic issuce I don't think we 11 can. That's why we're not going to rule from the bench on 12 this contention. We've got a lot to look at.
13 MS. ZAMEK: Because under NEPA 43332, under-(B),
14 they talk about -- let's see, identifying and develop 15 methods and procedures, et ceters. It says, "Given 16 appropriate consideration in decision making along with 17 economic and technical considerations," because I know some 18 people were discussing earlier the economics of operating a 19 power plant has not shown a good history, and I have numbers 20 here. The cost of steam generator tube repair is 21 substantial. San Onofre spent -- in 1980, spent $68 million 22 on sleeving 6,500 tubes. Surry plant in 1979_ spent 367 23 million replacing their steam generators. Portland General 24 Electric Company voted in '92 to close~their plant in 1985, 25 15 years before its license expires, rather than spend 200 0 ^"" aev & Associates' 'ta-Court Reporters 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
211 1 million to replace steam tubes. 30 of the 111 U.S. nuclear 2 plants share similar Westinghouse Electric Company design 3 like ---as Diablo has, and eight have replaced their steam '
4 generators because of corrosion. Five plant owners have 5 sued Westinghouse, and earlier this year Yankee Row decided 6 against reopening their reactor because of the steel rack 7 containment vessel was brittle.
8 Southern California Edison announced in January of 9 1992 that it would shut down its 23-year-old Unit 1 in two 10 years rather than pay 25 million to bring it up to current 11 standards, and that was licensed until 2004, so if you can 12 bring in -- and the point is we don't believe it's 13 economical to run a nuclear power plant any longer.
(9
%J 14 Certainly not past the year 2000 -- or it's current.
15 Whatever, two whatever, 2008.
16 MR. REPKA: And that really is not an issue before 17 this Board in any way.
18 MS. ZAMEK: Well, I thought it might be through 19 NEPA; that they could consider it.
20 MR. REPKA:- Well, we disagree with that.
21 JUDGE BECHHOEFER: I don't think we're going to 22 rule on the bench on this contention anyway, but --
23 MS. ZAMEK: I wanted just for information, who '
24 prepares the environmental assessment?
25 JUDGE BECHHOEFER: The NRC Staff. I can't tell lC ANN RlLEY & ASSOCIATES, Ltd.
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212 1 you the name of the people.
2 MS. ZAMEK: Right, but do they get the information 3 from the utility? I don't know how that operates.
4 JUDGE BECHHOEFER: Well, maybe Miss Hodgdon can 5 comment. I don't like to say where they get their 6 information from.
7 MS. ZAMEK: I want to know, also, who determines 8 whether an EIS is warranted after the --
9 JUDGE BECHHOEFER: Well, the Staff will reach that 10 conclusion in its assessment as they are required to do, but 11 who does it, I can't really tell you.
12 MS. HODGDON: The director. It wcculd be NRR, it 13 would be Dr. Murley.
14 MR. REPKA: The discussion now is getting a little
- 15 off the point.
16 MS. HODGDON: According to the regulations -- yes.
17 Yes. Well, that's who prepares. But the licensee puts in 18 his application and environmental report which could be 19 supplemented by other informatici. That's the basis of the 20 environmental assessment. Part of it is generic.
21 JUDGE BECHHOEFER: Okay. As we've finished all l
22 the contentions now, we have decided that if we should -- it 23 would be not too appropriate at this stage to talk about 24 future scheduling and discovery, but we will convene -- if 25 we should decide to accept any of the contentions, we will
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213 1 try to convene a telephone conference call to talk'about O 2 discovery that might follow. I think it would be better to 3 do that than to try to come up with hypothetical: schedules, 4 and the number of contentions accepted might determine in 5 part what the length of the discovery is.
6 There would be an awful lot of matters that I 7 don't think we can come to grips with now without having 8 reached a decision on any of the contentions, whether 9 they're admissible or~not. So unless I hear something to 10 the contrary from the parties, I -- petitioner or parties, I 11 don't think we can make an intelligent ruling, at least on 12 discovery, but certainly if we allow any contentions in in 13 an order which we will issue, and I can't give you any 14 particular schedule on that. Well -- some of these are very
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15 complicated, and we will get through them as quickly as we 16 can. As I said, we are going to rule that the Mothers have 17 standing and we will spell that out in some detail.
18 We will also rule on contentions and thereafter 19 will have some sort of a -- if necessary, we'll have a 20 telephone conference call at which all the parties will have 21 to be represented. And we'll discuss discovery schedules to 22 the extent appropriate. So --
23 MR. REPKA: That's acceptable to PG&E.
24 JUDGE BECHHOEFER: Is that acceptable to the l
25 Mothers?
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214 1 MS. ZAMEK: That's agreeable.
t 2 MS. BECKER: Uh-huh.
3 JUDGE BECHHOEFER: We really can't tell until we 4 know how many contentions, if any, but how many contentions 5 they're in. The NRC discovery rules might be okay for one 6 contention or maybe they're not even enough for one 7 contention or maybe they're too much, but the number that 8 are accepted and their complexity would determine in part 9 the length of discovery and that type of thing. So we will 10 convene a telephone conference call for that, try find other 11 time when everybody's available. Various cities in the 12 country; sometimes it's not too easy.
, 13 Does the Staff approve of that approach?
14 MS. HODGDON: Yes.
15 JUDGE BECHHOEFER: Not to touch discovery at this 16 stage but to --
17 MS. HODGDON : Yes. Yes, Judge Bechhoefer. The 18 Staff approves of that approach.
19 JUDGE BECHHOEFER: Okay. Is there anything else 20 that any of the parties or petitioner wishes us to consider?
21 MS. BECKER: I just have a question. Is there any 22 closing arguments or submittals that are going to be coming 23 to you?
24 JUDGE BECHHOEFER: Not --
25 MS. BECKER: We haven't received things in a very O- ^"" ai'ev a ^ssoci^Tes' 'id-Coud Reponers 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 .
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-215 1 timely basis, so we kind of like to know if people are going eO 2 to be saying anything so we know they're coming.
3 JUDGE BECHHoEFER: No. We're not going to invite 4 any further responses. We're going to try to rule on what .
S we have before us, including what we heard today, and that 6 will take a few days for the transcripts and that type of 7 thing, so -- but I think we'll be finished with everything 8 that we were going to talk about except, of course, for the 9 limited appearance statements which will start tonight and 10 go from 7:00 to -- we had said 9:00. I'm not sure when 11 they'll close the place up. If they run a little late, we 12 might stay a little late. We understand there are quite a 13 few requests that we've received. We've apparently got
() 14 15 about 40 or 50 requests. If everybody gets five minutes, it's going to run over two hours.
16 We've also decided that although we stated that we 17 would resume for limited appearances, only if we resume for 18 other reasons, we have decided that we will - if there are 19 further people present tonight who can't make their 20 statement, we'll come back at nine clock and hear further 21 statements. It appears we will not have anything 22 substantive to decide, so that part of the conference we're 23 going to close right now. But we will come back at nine in 24 the morning, and if people are there, at least, who wish to 25 make statements, we will hear the statements at that time.
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1 1 think given the number of people who we have heard want to 2 make statements, that we do not like to cut people off if we 3 can help it.
4 MS. HODGDON: Judge Bechhoefer, may I ask a 5 question? What time would you conclude tomorrow, then, the 6 limited appearances? Just go tomorrow morning or --
7 JUDGE BECHHOEFER: Pardon?
8 MS. HODGDON: You won't go into the afternoon 9 tomorrow?
10 JUDGE BECHHOEFER: No. We will not do that. In 11 fact, we and all the parties and petitioner are invited, I 12 guess, on a site tour, and that would start right after the 13 session, and I hope -- would hope it would start in the 14 morning.
15 One moment. Yes.
16 UNIDENTIFIED WOMAN: Mr. Chairman, can you take 17 any statements tonight from those of us that are from out of 18 town, from Santa Barbara?
19 JUDGE BECHHOEFER: Well, we are going to take 20 statements tonight from 7:00 to 9:00.
21 UNIDENTIFIED WOMAN: I just got here, so I wasn't 22 clear on it.
23 JUDGE BECHHOEFER: But I said we've gotten over 50 l 24 requests alreati, and I don't think those requests are going l l 1 j 25 to fit in the two-hour period that we are going to delegate. !
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217 1 But certainly for people who are here tonight who say they 9 2 can't come back tomorrow morning, we would make every ef fort 3 to hear those people.
2 4 UNIDENTIFIED WOKAN: Thank you.
]
5 JUDGE BECHHOEFER: But make known -- in fact, I'll 6 try to remember to ask people if there are any here tonight 7 who could get back tomorrow morning, because it appears that r
8 by the time wo quit, even if we run 58 minutes late, we've _
, 9 been told the place should close up by 9:30, so that means t_
4 10 we got to allow a few minutes for people to leave, so --
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11 MS. CULVER: Actually, there's no reason to get 12 out at 9:30. The City Council goes to midnight frequently 13 in this room.
14 JUDGE BECHHOEFER: We were told by people who 15 asked that they like to shut tne place up. We'll be back at 16 seven o' clock for that purpose, and that that will continue 17 tomorrow if it appears there are many, many, many people who 18 wish to make a statement. But the substantive portion is 19 now closed. We'll come out with an order as soon as we can.
20 (The hearing was concluded at 5:15 p.m.)
21 22 23 24 25
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REPORTER'S CERTIFICATE This is to certify that the attached proceed-ings betore the United States Nuclear Regulatory Commission in the matter of NAME OF PROCEEDI!!G: DI ADLO CA!1YO!! UtJITS 1& 2 DOCKET NUMBER: 50-275/323-OLA-2 Pt. ACE OF PROCEEDING: SA!1 LUIS OllISPO, C ALI FOP,tJI A were held as herein appears, and that this is the or!.ginal transcript thereof for tne file of the United States Nuclear Regulatory Concission taken by me and thereafter reduced to typewriting by me or under the direction of the court report-Lng company, and that the trsascript in a true and accurate record of the foregoing ;, r o c e e d i n g s .
O MI,ki f0t
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\0ffi$ial Reporter Ann Riley 5 Associates. Ltd.
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