ML20132E898
| ML20132E898 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 09/26/1985 |
| From: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#385-673 OL, NUDOCS 8510010194 | |
| Download: ML20132E898 (69) | |
Text
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ORIGINAL UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1
In the matter of:
LONG ISLAND LIGHTING COMPAMY (Shoreham Nuclear Power Station Unit 1.)
Docket No.
50-322.0L ORAL ARGUMENT O
Location: Bethesda, I'.aryland Date: Thursday, September 26, 1985 Pages:
1 - 67 8510010194 050926 PDR ADGCK 05000322 T
PDR ANN RILEY & ASSOCIATES
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Court Reporters
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1625 I St.,
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Washington, D.C.
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(202) 293-3950 fw b
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1 UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION J
3 4
5 In th'e matter of:
j 6
LONG ISLAND LIGHTING COMPANY
-Docket No. 50-322 OL 7
(Sh.oreham Nuclear Power Station 8
Unit 1.)
j 9
10 i
11 ORAL ARGUMENT q
12 O
13 Fifth Floor Hearing' Room j
14 4350 East West Highway 15 Bethesda, Maryland 16 Thursday, September 26, 1985 l
17 Oral argument was heard in the above entitled i
j 18 matter, commencing at 2:30 p.m.,
before the Atomic Safety &
I 19 Licensing Board Appeal Board Panel, Judge Alan S. Rosenthal, i
I 20 Presiding.
21 22 PRESENT:
23 ALAN S. ROSENTHAL, Chairman
)
24 GARY J.
EDLES, Member 25-HOWARD A. WILBER, Member.
t 2
()
1 APPEARANCES:
2 3
On behalf of the Applicant, LILCO:
4 T.
M.
ELLIS, Esq.,
5 Hunton & Williams I
6 707 East Main Street 7
P.O. Box 1535 i
8 Richmond, Virginia 23212 9
{
10 On behalf of the State of New York:
11 FABIAN PALOMINO, Esq.
i 12 Governor's Office 13 Capitol Building i,
14 Albany, New York 12224 15 i
16 On behalf of Suffolk County:
17 EUGENE R. - KELLEY, Esq.
18 Chief Deputy County Attorney, i
19 LEONARD PILZER, Esq.
l 20 Assistant County Attorney l
"21 Suffolk County Department of Law 22 H.
Lee Dennison Building l
23 Veterans Memorial Highway 24 Hauppage, New York 11788 4
)
25 i
A 1
3 1
APPEARANCES:
(Continued) 2 l
l 3
On behalf of the Nuclear Regulatory Commission Staff:
4 EDWIN REIS, Esq.
i 5
RICHARD J. GODDARD, Esq.
l-6 ROBERT PERLIS, Esq.
7 Office of Executive Legal Director 8
Nuclear Regulatory Commission.
9 Washington,..D. C.
1 10 P
l 11 Also present:
I 12 RALPH CARUSO, Shoreham Project Manager.
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PROCEED INGS 2
JUDGE ROSENTHAL:
Good afternoon, ladies and 3
gentlemen.
4 I apologize for o'ur late start, but I understand our 5
reporter got caught in on'e of the truck accidents on our 6
Beltway.which are becoming virtually daily occurrences.
7 We are hearing oral arguments today on the appeal of 8
Intervenors, Suffolk. County and the State of New York, on the 9
Licensing Board's June 14, 1985 partial initial decision in le this operating licensing proceeding ' concerned with the 11 Shoreham nuclear power facility.
12 That decision dealt with the issues in controversy
()
13 pertaining to the diesel generators.that the Applicant 14 proposes to use for the first fuel cycle to supply emergency 15 electrical power to the facility as required by General Design 16 Criterion 17.
The Licensing Board concluded that those diesel 17 generators were acceptable for that purpose.
18 The oral argument is governed by the terms of our 19 August 27, 1985 Order.
As provided therein, each side 20
'will have 45 minutes for presentation of argument, and the 21 Appellants may, if they so desire, reserve a portion of their 22 time for rebuttal.
23 As also indicated in the August 27 Order, this Board 24 is generally-familiar ~with the relevant portions of the 25 record, including the June 14 partial initial decision and the I-
5
^
1 appellate positions of the respective parties.
For this 2
reason, it will not be necessary for any counsel to embark 3
upon a recitation of the background or the controversy; 4
rather, each counsel should proceed'immediately to, address the 5
issue raised by the-appeal of the County and State.
6 At this juncture I will call upon counsel for the 7
respective parties to identify themselves formally for the 8
record, and I will start with Mr. Kelley.
9 MR. KELLEY:
Thank you.
10 For the County of Suffolk, Martin Bradley Ashare, 11 County Attorney, by Eugene R..Kelley, Chief Deputy County 12 Attorney, and Lee Pilzer, Assistant County Attorney.
()
13 JUDGE ROSENTHAL:
Thank you, Mr. Kelley.
14 Mr. Palomino.
15 MR. PALOMINO:
Fabian Palomino for the State of New 16 York.
17 JUDGE ROSENTHAL:
Thank you, Mr. Palomino.
18 Let me ask you this, Mr. Palomino.
Have you and 19 Mr. Kelley agreed upon division of time and also order'of 20 presentation?
21 MR. PLLOMINO:
Yes, we have, Judge.
At the request 22 and with the approval of the County, I will be arguing the 23 entire matter for the State and County, and I expect to use 24 about 30 to 35 minutes on direct argument, and reserve the m
25 remainder --
6
/~'i 1
JUDGE ROSENTHAL:
I take it you are not O
2 participating, Mr. Kelley, in the argument itself?
'3 MR. KELLEY:. That is. correct, Mr. Chairman.
4 JUDGE ROSENTHAL:
Very good, Mr. Palomino.
5 All right, Mr. Ellis.
6 MR. ELLIS:
Yes, sir.
I am Tim Ellis from the firm 7
of Hunton and Williams, representing the Long Island Lighting 8
Company, the Applicant in this matter.
9 I have' discussed the matter with Mr. Goddard, who is
.10 counsel for the Staff.
We agreed to divide our time, I 11 believe, in terms of 30 and 15 minutes.
I will be taking 30 12 minutes.
If the Board pleases, I can take roughly 20 minutes 13 at the outset, and perhaps if the Board wishes, I can reserve 14 10 minutes following Mr. Goddard if the Board has any further 15 questions.
16 JUDGE ROSENTHAL:
I don't think so.
You are the 17 Appellee and we normally provide rebuttal time only to the 18 Appellants.
I think you.should-take yoar full time at the 19 outset.
20 MR. ELLIS:
Yes, sir.
21 JUDGE ROSENTHAL:
If we do have any residual 22 questions, of course, we have the flexibility.to bring you up.
23 again, but I'think we should count on utilizing your time in D)
(,
24 one piece.
25 MR. ELLIS:
I will do that.
7 1
JUDGE ROSENTHAL:
Mr. Goddard.
,O I'
2 MR. GODDARD:' Richard J. Goddard of the Office of i
)
3 the Executive Legal Director, representing the NRC Staff.
1 i
4 JUDGE ROSENTHAL:
Thank you, Mr. Goddard.
5 Mr. Palomino, we will hear from you.
}
6 ORAL ARGUMENT OF FABIAN PALOMINO i
l 7
ON BEHALF OF THE STATE OF NEW YORK I
l' 8
' MR. PALOMINO:
It is the contention of the State and 9
County that in denying the introduction of this evidence and
]
le also cross examination on the grounds of irrelevance'in that 11 it was a matter collateral to the issue, the Board not only 12 erred but also denied us.a right to a hearing on this issue,
'O 13 which we are entitled to under the rules of the NRC.
j 14 JUDGE ROSENTHAL:
What do you think that evidence 15 established, specifically?
We are talking about a table, are 1
16 we not, in essence?
17 MR. PALOMINO:- Yes.
i-18 JUDGE ROSENTHAL:
What --
1
'19 MR'. ~ PALOMINO:
'In essence ~it is not a table;' it is
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20 testimony and a table.
i 21 JUDGE ROSENTHAL:
Let's take the~ table, to begin 22 with.
What does the table establish?
23 MR. PALOMINO:
What we sought to esta'blish by the
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24 table was that as a result of the application of the standard
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25 that had been uniformly applied by'the NRC in all other t
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8
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1 licensing proceedings, that it would result in -- if they
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2 followed this practice of adding the single load that an 3
operator could put on to the MESL.
4 JUDGE WILBER:
Does the table demonstrate that, that 5
they are allowing for this added load?
6' MR. PALOMINO:
The table would be the result.
If 7
they follow this practice, the result would be that there 4
8 would be a substantial higher margin than the MESL, which 9
would be a margin of safety that.would merely be a result'of 10 the standard practice they followed.
11 JUDGE ROSENTHAL:
Where do you get the standard 12 practice?
Where in that table is there anything to support 13 the inference that the NRC as a regulatory body required this 14 additional margin?
Is there anything in the table at all that 15 shows that?
16 MR. PALOMINO:
Not in the table; in the testimony.
17 JUDGE ROSENTHAL:
In the testimony?
These were the o
18 testimony of the Staff witnesses, the effectiveness ~of the 19 practice of the Agency?
20 MR. PALOMINO:
Yes, sir.
21 JUDGE ROSENTHAL:
Who'were these witnesses --
22 MR. PALOMINO:
Dr. Carl A.
Sperling said that "many 23 plants" refers to just about every plant that I am familiar
()
24' with, and that is either in operation or under construction in 25_
the United States.
I don't know of any exceptions to that.
9 1
JUDGE ROSENTHAL:. Does the Staff require it?
We are 2
dealing here, are we not, Mr. Palomino, with a question as to 3
whether the excluded evidence establishes that the Staff had a 4
uniform interpretation of GDC-17 that requires this additional 5
margin.
Isn't that the question?
6 MR. PALOMINO:
We don't only prove the evidence from 7
this.
There.is testimony in the record that it was a standard 8
practice.
If you look at page 7 of our brief, Knox, that it 9
was a standard. practice of the Staff. It's not only Staff.
10 These plants were licensed by the Commission, and that was a 11' construction that applied --
12 JUDGE EDLES:
Are there any exceptions that you are
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13 aware of, Mr. Palomino?
14 MR. PALOMINO:
I think that would be for the 15
. hearing. That's just the point.
That's just the point.
We 16 are contending, and the --
.17 JUDGE EDLES:
Let's assume that's true.
Are there 18 any exceptions that you are aware of?
19 MR. PALOMINO:
Not that I'm aware of.
I just 20 prepared for the argument.
I'm not familiar with all other 21 plants.
That would have been established by cross examining 22 on NEC the' Staff people.
They have that information.
That -is 23 what we sought to do, and we were denied that right.
That is
()
24 all we are saying.
We were denied a right to a fair hearing.
25 JUDGE-EDLES:
You were denied the right to cross
10 4
1 examine the Staff itself on this issue?
2 MR. PALOMINO:
Yes.
Up to a point, and then he 3
stopped.
So that it goes to the heart of it.
We wanted to 4
establish that this was the practice.
5 You know, the GDC-17 came in, what was it, 1971 --
6 February of 1971.
So that all the plants before that would t
7 not be relevant to the construction of GDC-17, and we sought 8
to establish it.
9 JUDGE EDLES:
But you don't include all the plants, 10 post-1971 plants on your chart,'though.
I don't know whether we do or not.
11 MR.' PALOMINO:
12 That was what the purpose of the hearing was.
If they wanted 13-to be --
14 JUDGE WILBER:
There are no PWRs on it, so we know 15 for sure you haven't included the pressurized water.
16 MR. PALOMINO:. I know, but the testimony is 17 sufficient to have let us go forward on that and let them 18 rebut it if that was the case.
19.
JUDGE ROSENTHAL:
I thought the issue on this appeal 20 was whether or not the evidence that the State and County d
21 proffered that was excluded should have been admitted.
Is 22 that the issue?
I didn't think we were dealing with cross 23 examination here.
Is that raised by your appeal,'the question
()
24 as to.whether --
25 MR. PALOMINO:
It is in the brief that we mention
11
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1 it, yes.
O) 2 JUDGE EDLES:
At the end of your brief in says, "In 3
summary, the Licensing Board's erroneous exclusion of the
~
4 evidence precluded the County and the State from introducing 5
vital evidence on how the requirements --
6 MR. PALOMINO:
Yes, it was vital evidence.
It would 7
tend to.show -- he permitted ~a contention which allowed this 8
evidence.
It was broad enough to allow this evidence.
What 9
we intended to show was if this uniform practice existed and 10 the uniform practice would result in these higher margins of 11 safety, and the chart was in support of that.
12 If they wanted to rebut it, they would have the O
13 opportunity at the hearing to rebut it.
14 JUDGE WILBER:
I thought that part of the contention 15 that dealt with practices at other power plants was not 16 admitted.
Wasn't that part of that contention excluded?
17 MR. PALOMINO:
Part of that contention was excluded.
18 JUDGE WILBER:
It was the part that dealt with --
19 MR. PALOMINO:
Yes.
20 JUDGE WILBEE:
-- margins-at other power plants; 21 isn't that correct?
22 MR. PALOMINO:
Yes.
23 JUDGE WILBER:
So why isn't this a logical. follow-on
/~')s.
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24 on that?
25 MR. PALOMINO:
'Because this was representative of
12
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1 the safety factor and the need for the safety factor.
v 2
JUDGE ROSENTHAL:
Mr. Palomino --
3 MR. PALOMINO:
Which they have been applying.
4 JUDGE ROSENTHAL:
I am reading the introduction to the brief ' hat was filed on behalf of the County and the 5
t 6
State, and the introduction says the decision should be
~
7 reversed because the Licensing erroneously excluded evidence 8
showing that GDC-17 has been consistently interpreted and 9
applied to require that -- et cetera.
10 Now, I don't find that to raise an issue respecting 11 the denial of cross examination.
From that statement and from 12 the brief as a whole, including the statement at the end to (D
~
13 which Mr. Edles referred, I got that the issue that was raised 14 by the State's and County's brief was whether or not the 15 evidence which was excluded should have been admitted as 16 establishing or tending to establish that there was a-17 particular Staff i a 2rpretation of GDC-17 that was contrary to 18 the Licensing Board's view of this matter.
19 Now, if you are raising here an issue beyond the 20 question.of the exclusion of this particular affirmative l
- 21 evidence that you sought to introduce, I would like.to know 22 where in your brief you indicate that because that was not in 23 my reading of the brief.
And as I say, from the very j
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24 introduction --
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25 MR. PALOMINO:
The evidence refers to the practice,
13
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the testimony.
It definitely refers to the practice in 0'
2 several places.
3 JUDGE ROSENTHAL:
I want to know in what specific 4
respect did the evidence which was excluded tend to establish 5
that the. Staff had a uniform interpretation of GDC-17 along 6
the lines that the State and County are contending.
Point 7
.specifically to what there was in that evidence that would 8
tend to show that this was the Staff's consistent
~
9 interpretation and application of.GDC-17.
19 MR. PALOMINO:
The testimony of Carl Berlinger, the 11 testimony of --
12 JUDGE ROSENTHAL:
Specifically, what would this 13 individual have testified to which would have established the 14 Staff practices?
15 MR. PALOMINO:
"Many plants" referred to just about 16 every plant.
He is talking about the practice of requiring 17 the off-site --
18 JUDGE EDLES:
Mr. Palomino, where are you reading, 19 so I can follow?
29 MR. PALOMINO:
It is on the top of page 17 in the 21 box.
Also Mr. Bridenbaugh's testimony on page 15.
22 JUDGE ROSENTHAL:
It is the testimony of 23 Dr. Berlinger that you have in mind?
()
24 MR. PALOMINO:
"Many plants" refers to just about 25 every plant that I am familiar with that is either in i
'14 1
operation or under construction in the United States.
I don't 2
know of any exceptions to that.
3 JUDGE ROSENTHAL:
Is that -- the fact that these 4
plants may have that particular margin, does that make that a 5
Staff requirement?
We are dealing here not with the question 6
of whether plants as a general matter do have this margin. We
.I 7
are dealing, are we not, Mr. Palomino, with the question --
8 MR. PALOMINO:
The thrust of the contention was to 9
prove that they do, and we never got a hearing on it.
10 JUDGE ROSENTHAL:
I'm asking you where this evidence 11 establishes that, in point of fact, the Staff had a 12 requirement that the Staff read GDC-17 as meaning that there 13 has to be this margin.
Now, where~in the excluded evidence --
14 because the issue, again, Mr. Palomino, is, unless I have 15 mi~ssed the point, whether or not the Licensing Board c
16 erroneously excluded this evidence as irrelevant.
17 MR. PALOMINO:
We contend the proof would have 18 s'howed that, if given the opportunity, which we didn't get, 19 that the past practice in'every plant since the adoption of 20 GDC-17 was for the Staff to require this additional test to 21 the MESL which would result in this additional substantial 22 margin of safety.
23 JUDGE EDLES:
What is the minimum substantial margin I
24 required under your thesis?
! b) 25 MR. PALOMINO:
There is no minimum.
It depends on
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15
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I the plant. The reason you can't reach a minimum, plants have
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2 different capacities.
They have different diesel generators, 3
they have different loading requirements.
They change the-4 loading requirements, but at least at the licensing stage, 5
they should meet this requirement because -- the reason is --
6 JUDGE EDLES:
I don't understand. What is the 7-requirement that they have to reach?
That there has to be a 8
difference between the two?
9 MR. PALOMINO:
There has_to be a difference.
They 10 imposed this requirement, which was adopted by the Commission 11 uniformly in licensing these plants, that in addition to the 12 MESL, you established a maximum power _ limit by requiring them O
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13 to show the load that could be added, that the engines could 14 carry a load which a single -- a maximum electrical load which 15 a single operator could put on, either intentionally or 16 accidentally.
1 17 JUDGE WILBER:
Are you saying Dr. Berlinger's 18 statement says that in there?
I don't see that at all'.
19 MR. PALOMINO:
I'm saying that reading this whole 20 testimony in context, you will find that that is what it does.
21 JUDGE-WILBER:
By Dr. Berlinger?
22 MR. PALOMINO:
Reading Bridenbaugh's testimony and
'23 Berlinger's testimony..
()
24 JUDGE ROSENTHAL:
Bridenbaugh isn't a Staff 25 employee.
It seems to me that if you were endeavoring to
16 1
establish what the Staff's practice had been in terms of its 2
construction and application of GDC-17, you would have called 3
or sought to have called a Staff witness in a position to 4
testify as to a Staff practice.
5~
MR. PALOMINO:
The testimony was sufficient to raise 6
the issue.
We never were' permitted'to reach that stage.
7 JUDGE ROSENTHAL:
- The question here is whether'this 8
evidence established or tended to establish --
9 MR. PALOMINO:
We also.have Staff testimony --
i 10 that's not Staff. We also sought to establish it through Knox, i
11 and Knox's testimony said on page 7 of our brief that it was a I
12 standard practice of the Agency.
13 JUDGE ROSENTHAL:
This was excluded testimony?
i i
14 MR. PALOMINO:
They permitted that testimony, but 15 that in conjunction with the other testimony --
16 JUDGE WILBER:
So what is the complaint if that 17 testimony is in?
18 MR. PALOMINO:
Well, the complaint was that some of 19 the other witnesses didn't have full recollections the same as 20 Knox and we should have had a full hearing on it of the NRC 21
. people.
22 JUDGE EDLES:
Mr. Palomino, just'following up on the 23 Chairman's.line of argument, it does seem to me there is I) 24-nothing in yoru brief in which you point to areas in which.you 25 were denied cross examination.
The issue is that you were
=
17
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denied the right to present affirmative evidence.
Am I right (O
2 or wrong on that?
3 MR. PALOMINO:
There was a limited cross 4
examination.
It is in our brief.
5 JUDGE EDLES:
There are substantial references to 6
thing like " excluded evidence."
That term is used frequently 7
in the brief.
8 MR. PALOMINO:
On page 10, footnote 10, similarly i
9 Licensing Board' erred by refusing to permit the County to 10 cross examine LILCO.and NRC Staff witnesses concerning a 11 substantial difference'between --
12 JUDGE EDLES:
Is that footnote now'the sum and
. [/h 3
13 substance of your argument with respect to the cross
+
14 examination point?
15 MR. PALOMINO:
That would be it.
I don't know.
I 16 wasn't at the hearings.
But I know they were limited.
17 JUDGE EDLES:
I am only trying to ascertain your 18 position; I'm not being critical.
19 MR. PALOMINO:
I am saying it's in the brief.
There 20 is a contention raised.
21 JUDGE ROSENTHAL:
In a footnote.
But it does seem 22 to me that when your introduction to this brief states that 1
23 decisions should be reversed for a particular reason and cite 24
.one reason and no others, it is asking a great deal of us to q
25 expand your appeal on the basis of a passing shot in a l
18 1
footnote in the middle of the brief.
2 MR. PALOMINO:
The sentence it is attached to says 3
this evidence is clearly relevant and material, and that is 4
what he denied it on, to the EG load contention because it 5
demonstrates how GDC-17 has been interpreted in part to prior 6
licensing proceedings, as footnote 10.
7 JUDGE EDLES:
That still goes back to the excluded 8
evidence point, which I understand.
9 MR. PALOMINO:
The excluded evidence was broad 10 enough to entitle us to a hearing.
That's my contention.
11 JUDGE ROSENTHAL:
I understand that.
Is your 12 contention that that is so?
13 MR.. PALOMINO:
The testimony and the chart under the 14 contention that was allowed was sufficient to give us a 15 hearing to prove that these was a standard practice of the 16 Staff which resulted in all the prior licenses granted under 17 GDC-17.
18 JUDGE ROSENTHAL:
Why does that show a standard 19 practice of the Staff?
20 MR. PALOMINO:
Not the Staff, the Commission in i
21 adopting the licensing.
22 JUDGE ROSENTHAL:
Why does it show a consistent 23 practice of the Commission?
All it shows is that the
()
24 utilities had as a practice the providing of this margin.
25 Now, we don't know whether the utilities provided this margin
19 1
because the Staff required them to do so or whether they did
)
2 it on their own hook.
Are you here with the matter of whether i
{
3 there is a requirement for that margin?
4 MR. PALOMINO:
I don't know.either except for Knox's 5
testimony that it was a standard practice of the Staff to do 6
this.
It doesn't say the utilities.
7 JUDGE ROSENTHAL:
If you have testimony ~in the 8
record that it was a standard practice, then why did yo'u need 3
this?
10 MR.-PALOMINO:
We need it to go on with it, to prove 11 it through all of them.
Now the Judge raised the issue is it 12 relevant because we didn't cover a11' plants. You are now
[
asking do I know of another plant where it didn't happen.
13 l
14 JUDGE EDLES:.What I was trying to get at is how you i
15 selected -- I appreciate that you were not intimately involved 16 in this perhaps at the time in preparation, but I am trying to 17 get a flavor for how you selected the particular plants.that 18 you listed in the chart since that is not a 100 percent sample 3
19 of all nuclear power plants since 1971.
20 MR. PALOMINO:
I don't-know. Mr. Bridenbaugh 21 selected them.
He purports.that it is, but that would be a 22 matter for dispute in the hearing.
What we are trying to do J
l 23 and what-the other side is trying to do is try the case.
For 24 example, they point to LaSalle, and LILCO does, and says,
- O i
25 look, they have a negative safety margin.
And the fact is i
1 u,
20 1
that if you look at the figures, he transposed the figures in 0
j 2
two columns, and the typist transposed the figures in two 3
columns on that chart, and those figures would establish, when j
4 transposed properly, would establish the proper percentage.
5 Ho points to Millstone.
As I understand it, 6
Millstone was licensed before GDC-17.was adopted.
All these 7
things could have been explained if there were a hearing.
8 JUDGE ROSENTHAL:
All right.
Was there any endeavor 9
made on the part of the County and/or State to have subpoenaed 10 a Staff witness who would have been in a position to testify 11 as to these matters?
Wouldn't that have been the --
12 MR. PALOMINO:
I think they sought to examine them 13 before the hearing and they never got the right people who had 14 the knowledge, and the hearing could have helped us on that.
15 JUDGE ROSENTHAL:
Wait a minute. Did'they call that 16 to the' attention of the Board?
They didn't get the right 17 people?
Did they make any endeavor to get -- I'm sure there 18 must be a number of people on the NRC Staff who are quite
~
19 familiar --
20' MR. PALOMINO:
I don't know if the right people were 21 all there..They are not there now.
Maybe they are not there l
22 now.
23 JUDGE ROSENTHAL:
You keep talking about the denial
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24 of hearing rights.
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25 MR. PALOMINO:
Yes.
i m.
m.
.m.
21 1
JUDGE ROSENTHAL:
I keep suggesting to you that I O
2 don't see how the exclusion of this particular evidence denied 3
you of any hearing rights at all.
It may be a question as to 4
whether this evidence was relevant on the Staff practice.
It 5
seems to me at best it was a very thin tie between this 6
particular evidence and what the Staff's practice might have 7
been.
8 I would have thought-that the counsel who tried this 9
case, and I realize, Mr. Palomino, it wasn't you, but you are 10 responsible today for the conduct of this case on your side.
11 I would have thought that the approach here would have been a 12 lot more direct: get the Staff witnesses who know what the
()
13 practice was on the stand'and say to them, okay, did the Staff 14 have this practice?
Was the fact that the plants had these 15 margins indicative of a Staff interpretation of GDC-17 that a 16 margin had to exist?
17 MR. PALOMINO:
I think they'did, and that is the 18 reason I am raising the question of the limitation of. cross 19 examination on all of the Staff witnesses.
20 JUDGE ROSENTHAL:
They were precluded from cross 21 examining Staff witnesses on what their practice was?
22 MR. PALOMINO:
When you go to the load margins.
23 JUDGE ROSENTHAL:
You weren't allowed to cross 24 examine Staff witnesses on whether there was a Staff practice J
25 to require a_particular margin?
22 r
1 MR. PALOMINO:
To some extent that was permitted, O
2 yes. There_is evidence in the record of it.
There is evidence 3
that we point to in the record that is in the brief where they i
4 said it was a standard practice.
5 JUDGE WILBER:
Then they weren't excluded from.
6 testifying to it, then?
You are saying that they did testify 7
to that, that it was standard pratice.
Is that what you are 4
8 saying?
9 MR. PALOMINO:
It's a question of extent, what 10 plants, how many.
The problem was they, as I understand it as 4
i 11 it has been told to.me, didn't have recollections, they didn't j
12 have the records.
Were we permitted to go more into it, we
)
13' could have gotten them.
We could have proved the point.
14.
JUDGE EDLES:
Mr. Palomino, let me pursue a slightly-j 15 different line of argument.
As I understand it, the argument i
16 you are making with respect to the margin of safety evolves 17 from the treatment that the Commission or the Staff may apply
(
18 pursuant to Regulatory Guide 1.9; is that correct?
19 MR. PALOMINO:
No, we are not.
We are going 29 directly to GDC-17.
21 JUDGE EDLES:
But your argument, as I understand it, 4
22 is that the Staff has a consistent interpretation of GDC-17 23 which is reflected in Reg Guide 1.9.
{}
24 MR. PALOMINO:
No.
We are saying they would have 25
. applied this whether they used Reg 9 or not.
We are saying, j
4
I 23 1
as we say it, that GDC-17 is not quantitative.
It talks in A-2 terms of functional capacity, and that the Staff and the 3
Commission adopted it over the years by licensing this plant, 4
went to a quantitati've standard, and that quantitative 5
standard of GDC-17 was the application of this.
6 We are saying that was standard, whether it was the 7
Guide went in or not.0 8
JUDGE EDLES:
What your chart appears to demonstrate l
4 9
is that to the extent there is a quantitative standard, it is 10 different at every single plant.
11 MR. PALOMINO:
That is because you have different 4
12 loads at every plant, different capacities --
()
13 JUDGE EDLES:
Why shouldn't we then just simply look i
14 at the Shoreham plant, then whatever design load you think.you l
15 need to carry out, you have a diesel generator that --
t 16 MR. PALOMINO:
We are saying it is the construction 17 of GDC-17 required that you arrive at it by this particular 18 practice, then that is what you have to do.0 The reason this I
19 was not done is because if you do, you will find that these 20 engines are not qualified.
They are rated at 3300.
They 21 brought them up to 3585, which was higher than what they 22 allowed even for two hours in an 18-month period.
23 JUDGE WILBER:
Are you contesting the MESL, the 24 Maximum Emergency Service Load?
25 MR. PALOMINO:
No.
We are saying if you followed
._m
24 l
this standard practice the way the statute had been construed 7-q
'(' ')
2 over the years by the Commission, you would have reached this 3
additional load, which would be the safety factor margin we 4
are talking about, and they would not have been able to comply 5
with it.
6 And that is where, when they talk about, it wouldn't 7
have changed the result, it would have absolutely changed the 8
results.
9 And we say it is relevant because it involved this 10 construction of GDC-17, all of this evidence.
11 We also say that -- and what we would have been able i
12 to prove it if we had a hearing -- we say it is not collateral (G,)
13 because it was allowed in under the contention.
It may have 14 been burdensome.
They may have avoided by seeking the 15 information and either rebutting it at a hearing or 16 stipulating. So that it was not -- but it definitely was not 17 collateral.
18 JUDGE EDLES:
Must we make a determination as to how 19 credible the evidence is?
I mean don't you have to meet r
20 some minimum threshold of reliability for this evidence before 21 it triggers a responsibility on the other side?
22 MR. PALOMINO That is the purpose of the hearing, 23 isn't it?
l
(
24 JUDGE EDLES:
It might be in due course, but I C)'
25 obviously can't serve up anything, and as long as I submit a
~ -.
25 1
paper tha; automatically gives me a right to a. hearing if it 4
2 is worthless information.
3 MR. PALOMINO:
It tends to be confirmed by Dr. Knox,
.4 doesn't it?
When he testified, he said'it was a standard 5
practice.
6 JUDGE ROSENTHAL:
So you had a hearing on the issue, 7
didn't you?
8 MR. PALOMINO:
We had a limited hearing.
9 JUDGE ROSENTHAL:
You had a hearing in which certain i
19 evidence --
l 11 MR. PALOMINO:
On part of it.
We wanted to show 12 this was a necessary result and we would have had a margin of
()
13 safety for the people of Long Island if they complied with 14 GDC-17 as had been in the past, which would have been the same 1
15 as people at other nuclear plants, and that they were entitled 16' to that.
17 JUDGE EDLES:
Mr. Palomino, what would have I
18 happened, if, in point of fact, there were lots of nuclear 19 power plants out there that didn't follow this method?
29 What conclusion would we draw from that?
a j
21 MR. PALOMINO:
Then he could have confirmed his 22 hearing at the 33 level.
If that is not - '
23 JUDGE EDLES:
If it's not the standard, exclusive
(
}
24 practice?
25 MR. PALOMINO:
That I don't know.
That you'd have 4
_,_-,.m,...
_._.-_..._.__..,.7.
26 l
1 to tell in the hearing, because somebody might have gotten a 2
waiver.
I don't know.
They may have referred to cases --
3 they do here -- which existed before the licensing proceeding, 4
before GDC-17.
l 5
JUDGE EDLES:
What would happen if we were to 1
6.
discover that this type of diesel generator is always tested 7
by a method different from'the one used in Regulatory Guide
.i 8
1.9?
What conclusion would you draw from that?
i 9
MR. PALOMINO:
I don't think it was because there i
19 were plants that were approved with diesel generators before j
i 11 Shoreham had its troubles, weren't there?
12 JUDGE EDLES:
Yes, but I'm talking about --
13 MR. PALOMINO:
So they would have applied the i
14 standard.
I think that would be due to the hearing, and see i
15 what the circumstances were.
I don't think you can avoid it l
,i 16 by doing that.
In fact, Millstone, the low rating at I
17 Millstone, establishes that before they adopted GDC-17, they j
18 didn't have the standard that they came to.
If you look at f
19 all the plants after, you'll notice they had much higher than 20 what the chart shows.
1 l
21 It also shows another relevant thing.
With-the 22 higher power plants, there are larger margins of safety.
With i
i l
23 the lower capacity plants, the 599 and 699 megawatts, they are 1
< ()
24 lower.
And it tends to show a uniform application -- not only i
i 25 a uniform application; evidence attached to that which might i
I i
27 1
have developed would have shown that it was a standard O
2 practice, as stated by'Dr. Knox.
3 We never got the chance.
We say that it was all 4
relevant.
It was relevant because it involved the 5
construction of statute.
It wasn't collateral, because it 6
involved the construction of statute to determine whether they 7'
could qualify.
8 They talk about different methods of reaching 9
compliance, but still you have to comply to the standard, if 10 that's the standard.
It isn't the methodology you use.
We 11 don't complain about that.
12 They seem to seek to sidestep the issue by implying
(
13 that the Judge found these diesels qualified, on this 14 qualified load under GDC-17.
What-they are talking about is a 15 single failure test, which has nothing to do with the GDC-17 16 requirements, as far as capacity and capability are concerned.
17 JUDGE WILBER:
All GDC-17 says.is that you must have 18 enough load to accomplish -- I think it's two items in there.
19 MR. PALOMINO:
Basically three items.
29 JUDGE WILBER:
It says nothing about error.
It says 21 nothing about intermittent loads.
So why isn't this technique 22
-- and they've written a Safety Evaluation Report, as I 23 understand it, on TDIs, which I will ask someone else later if 24 this is a general Safety Evaluation Report -- but why isn't
(
)
25 this an acceptable path?
28 1
MR. PALOMINO:
It isn't acceptable ~because they V
2 have, by required practice, it is our contention --
3 JUDGE WILBER:
Under. Reg Guide 1.9, they have -- all 4
of these have been evaluated under 1.9, evidently.
5 MR. PALOMINO:
That's not what we're saying.
That's 6
what has been established under the Reg Guide.
We're saying 7
as a standard practice, Dr. Knox said, that it applied 8
uniformly to all plants.
And our contention is that'they did, 9
in fact, require them to meet the standard.
19 And if that is the standard, then that-is the 11 construction of the statute, and we're entitled to the benefit 12 of it, and that they did it, because the fact is, GDC-17 talks
()
13 functionally and not quantitatively, and they felt they needed 14 a quantitative standard, and they did, and it's a very sound 15 one.
16 It is sound, indeed, because if you look at what 17 they have proved under this qualified load, the short-tern:
18 load is two hours in eighteen months.
In any other. plant, 19 it's two hours in any 24.
26 JUDGE WILBER:
Under Reg Guide 1.9 or the IEEE 21 standard that goes with it.
22 MR. PALOMINO:
But the point is, there's no margin 23 of safety here by all their past. practices, and the people of 24 New York State are entitled to it, the inhabitants of New York
}
25 State, if everybody else got it, and that's the standard way
=
29
,l 1
they have been doing it.
There.is no reason why we shouldn't g3 e
)
2 get the benefit of it.
l 3
JUDGE ROSENTHAL:
You're close to the 35-minute 4
mark.
5 MR. PALOMINO:
I'll reserve ten minutes.
6 JUDGE WILBER:
Could I ask for a clarification?
t
~
7 You used the expression " maximum permitted load" in 8
your brief.
In reading your brief, I find that it appears to 9
be equated to " continuous rating" at one point, " qualified i
10 rating" at another, and "short-term rating" in still a third.
11 I just don't understand what it's supposed to mean.
4 12 MR. PALOMINO:
As I understand it in the brief, the s,/
13 maximum-permitted load is the continuous rating, short-term i
14 load, and as confirmed --
15 JUDGE WILBER:
You just put two definitions in one 16 breath there.
Short-term and continuous rating are two 17 different things.
18 Now which is it?
Is it short-term rating, 19 continuous rating?
29 MR. PALOMINO:
Basically it's a continuous rating, 21 and you add to it the load that any single operator could put 22 on it, accidentally or intentionally, and that's what the i
23 maximum permissible load is.
24 JUDGE WILBER:
Then it is not the continuous rating.
i
~J 25 MR. PALOMINO:
That's how they confirm the i
. ~. _
39 1
continuous rating, by standard past practice.
If~you look at
(
l 2
it -- you're looking at me, and you seem shocked -- but
}
3 according to Knox' testimony on page 7 -- I'll read it to you i
j 4
-- it says:
"The Staff's standard practices confirm the 5
continuous rating, which constitutes the maximum permitted j
6 load, encompasses the MESL, and the short-term rating 7
encompasses the MESL plus the~ single highest additional load 2
8 that could be connected by an operator."
i 9
So that was their ntandard practice.
Maybe it le sounds confusing to you, but I'm just repeating what they say 11 is their standard practice.
l 12 JUDGE ROSENTHAL:
If you think that Mr. Knox or
)
13 Dr. Knox as the case may be, his testimony established this 14 practice, then I. don't understand why --
l 15 MR. PALOMINO:
.I don't think it did, because -- I J
16 think it warranted a fcll hearing, let me put it that way.
17 JUDGE ROSENTHAL:
It warranted a full hearing.
He 18 testified.
You'were in a hearing.
Now you are telling me 1
19 that his testimony was not sufficient of itself.
Then, you 29 are entitled not to a now hearing, but you are entitled to do 21 something else in this hearing, which was devoted to this --
4 22 MR. PALOMINO:
Let me say this.-
If that was 23 acceptable -- apparently, it wasn't acceptable to the Hearing 24 Board, because they never ruled on that basis.
They just
()
25 stuck _to the approach of qualified load, and it was sufficient i
l
+
31 1
that you didn't have to meet GDC-17, that they did qualify --
2 JUDGE WILBER:
Did they say that?
l 3
MR. PALOMINO:
Rather that they met GDC-17 with a 4
qualified load.
That's why I'm hesitant.
I don't.want to be i
5 the judge of that.
I'm just going on what they did.
6 JUDGE-ROSENTHAL:
Thank you, Mr. Palomino.
7 We will now hear from Mr. Ellis.
8 ORAL ARGUMENT ON BEHALF OF LONG ISLAND LIGHTING 9
COMPANY BY MR. ELLIS I
19 MR. ELLIS:
Thank you, Judge Rosenthal.
11 May it please this Appeal Board, as I indicated at t
12 the outset, my name is Tim Ellis.
I am here today on behalf
()
13 of the Long Island Lighting Company, the Applicant.
14 Let me go directly to what I think is a 3
15 misunderstanding by Mr.-Palomino.
i 16 There was not a denial of cross-examination on that 17 point.
In fact, the testimony that he repeatedly referred to 18 by Mr. Knox or Dr. Knox -- I don't recall which -- was later 19 withdrawn -- not withdrawn, but Mr. Knox was cross-examined on j
29 it, and he later admitted that that was not the case.
We 21 covered that in our Footnote No. 19.
22 JUDGE ROSENTHAL:
What was not the case?
l 23 MR. ELLIS:
That it was not -- that the design load 24 did not encompass the single worst operator error load.
The
(}
25 design load encompasses only the equipment required to respond
,y 32 1
to'the accident, the design-basis accident, and not the single i
2 worst operator error load.
3 The diesels-as a whole, as a unit, because they are l
4 single-failure as a unit', of course, accommodate a single 5
operator load, if.the single operator load is a single n,
6 additional failure.
4 I
7 We pointed out'in Footnote 19 that if you go to the 8
transcript, Judge Brenner and the Licensing Board did permit 9
the County to cross-examine at some length on this.
- In fact, i
-10 it is my recollection -- I may have the dubious distinction of 11 being the only person in the room who was there for every one 12 of those 42 days and some of the other 100 days before that --
j 4
)
13 but my recollection is that the County Attorney, whoever it 1
14 was at the time,.came back the next morning and said he wanted i
e 15 to ask additional questions, and I cross-examined on that.
16 point.
I i
17 And the-final substance was, the question was -
i 18 generally:
Do you know of any case in which there is a. plant
- v 19 where the. single worst operator error load is not accommodated I
20 within the short-term rating?
And.the answer was no, but when 21 cross-examined, it was, "No, we don't know of any case, one 22 way or the other."
And further, at Transcript Page 28,200, 23 Messrs. Hodges and Knox indicated there might be.
()
24 The testimony was that there may be and probably are i
25 licensed plants where additional operator error loads would i
s
-_,--m
,v,..-.
-r
,.,m.,
,,., -, -,...- ~--...,..
-~v
- - -,---, - m, e
--.,--.-,,,.v4--,-r-,
33 1
result in exceeding diesel generator ratings.
2 So I wanted to cover that straightaway and indicate 3
that there was cross-examination, and fairly substantial 4
cross-examination, and examination on that point.
5 JUDGE ROSENTHAL:
Wouldn't it have been helpful to 6
have that matter explored?
'7
-MR.
ELLIS:
It was explored.
8 JUDGE ROSENTHAL:
As to whether there were or 9
weren't?
I thought you just told me that the answer that was 10 given is that there might or might not be.
11 MR. ELLIS:
In that connection, they indicated that 12 there probably are, but their testimony was -- and this is the O(,)
13 important point -- was that the design load, in their 14 interpretation of GDC-17, is that it does not have to 15 accomplish that or encompass that.
16 JUDGE ROSENTHAL:
But these plants that were listed 17 in the excluded table, all did have that margin.
18 MR. ELLIS:
No, sir.
The table doesn't show that.
19 As I think the Board's questions may have suggested, the table 20 shows nothing at all about operator loads at any of these 21 other plants, nothing whatever about operator loads.
22 All the table shows is -- if one takes it at face 23 value and as our brief indicates, we think there are serious 24 facial with it -- but putting to one side that even at face 25.
value, all it shows or purports to show are basic loading
34 1
conditions.
It does not show anything about the imposition of O
2 a requirement.
It does not show anything about the 3
interpretation of GDC-17.
4 If you want to look at what the Staff thinks of 5
GDC-17, the evidence in the record of this case and this Board 6
is quite correct.
They certainly had the power to subpoena 7
people, and they didn't.
They had discovery on the issue, and 8
they didn't subpoena anybody in that instance.
But if you 9
look at the evidence we have in the record, what we have is 19 the testimony of the Staff saying that their interpretation of 11 GDC-17 is that it does not require that the diesel qualified 12 load, or for short-term rating, whichever method is used,
(
13 accommodates a single --
14 JUDGE EDLES:
Why isn't it a fair point, as 15 Mr. Palomino makes, that yes, I hear them.
I know what the 16 Staff says when you ask them affirmatively, but I'll show you 17 what they do here.
And what they do isn't'what they say.
I 18
'MR.
ELLIS:
Wrong.
Because when he says what they 19 do, it doesn't show what he says it shows.
It does not show l
29 that.
[
i 21 Moreover, there is another piece of'important I
22 evidence that is in the record, or at least it is available, i
l 23 both to the County and to this Board, and that is the
{
/~N 24 Regulatory Guide, which adopts the IEEE standard.
There is no J
(_l l
25 discussion in either of those of any margin.
In fact, quite 3
l i
4
I 35 1
the contrary.
O 2
By its terms, GDC-17, of course, doesn't require a 3
specific margin.
The word " margin" doesn't apply in it --
4 doesn't appear in it.
Neither does it appear in the Reg 5
Guide.'
l 6
If you look at the Reg Guide, which adopts the IEEE 7
standard, Section 5.2.3 in the standard says:
"The diesel 8
generator units may be utilized to the limit of their power 9
capabilities, as defined by the continuous and short-term 19 ratings."
And it also states:
"At the operating license 11 stage, the predicted load should not exceed -- the predicted' 12 load should not exceed the short-term rating."
()
13 Mr. Knox testified several times that the design 14 load is what has to be accommodated by either the qualified 15 load, if you use the qualified load concept, or the short-term 16 rating, if you use the Reg Guide system.
1 l'7 So the evidence in the record is, I think, very 18 clear about'the construction.of GDC-17 and the terms of 19 GDC-17.
l 29 JUDGE EDLES:
Why isn't the Reg Guide approach used 21 for the diesel generators at Shoreham?
22 MR. ELLIS:. Why wasn't it used?
23 JUDGE EDLES:
Right.
/'T 24 MR. ELLIS:
It was determined by the Staff.
The 25 Staff issued.-- in answer to Judge Wilber's quest ~ ion, let me
- - - - ~
36 1
just say -- the Staff did issue a generic SER that established
'S w) 2 the qualified load concept.
There are specific SERs that 3
apply to the results of the Shoreham qualified load testing.
4 It was determined, Judge Edles, that as a result of 5
the sequence of events that occurred after the crank, shaft 6
failure -- after the crankshaft failure, the engines.were 7
completely torn down.
There was a design review and quality 8
revalidation program, where there was a design review of 9
components, key components, and a design review and a quality 10 revalidation, and the engines were put back together, and they 11 were subjected to.an expanded preoperational test program, a
12 complete one that-they had gone through before the crankshaft
~
13 failure, another complete one that was expanded to include 14 such things as an additional 100 starts.
15 But then because of the crankshaft, there was 16 largely some concern about the crankshaft.
If you are not at 17 185 BMEP, they said, "You've got to prove to us that that's 18 going to be okay, so go to the 10 to the'7th, 10 million 19 cycles of loading, and if you do 10 million cycles of loading 20 at a qualified load which encompasses the design load, then 21 that accomplishes, functionally equivalent to the short-term 22
-- to the process of-the Reg Guide."
23 It ~is, in fact,.at least as rigorous, given the fact
(~
24
' V) that you've got a 10 million cycle loading test, and after the 25 other review, it is at least as rigorous ~as the Reg Guide,
37 1
which requires only 22 hours2.546296e-4 days <br />0.00611 hours <br />3.637566e-5 weeks <br />8.371e-6 months <br /> a year at a continuous rating and O
2 two hours in that year at the short-term rating.
3 JUDGE EDLES:
But I think you've told me what they 4
have done, and that it is just as rigorous, but I still am not 5
clear why it was that they adopted this method for these 6
diesels.
7 MR. ELLIS:
Well, I think it is more rigorous.
And 8
I can't tell you what was in their minds, except to say that i
9 there was some skepticism about the qualification of the 10 engines, and therefore they wanted it to undergo this more l
l 11 rigorous testing.
l 12 JUDGE EDLES:
Maybe I'll take that up with the
(
13 Staff, then.
14 MR. ELLIS:
Yes, sir.
But I can't tell you what was 15 in their minds, except to say that an alternative method was 16 devised, which was perceived to be very rigorous and involving 17 this very extensive testing and' additional testing in the t
18 preoperational phase as well, and that it accomplished the purp'se of GDC-17, because it ensured that there was a'10 to 19 o
20 the 7th cycle test at a load that encompassed the design load, 21-which is what they construed the regulation as requiring.
i 22 JUDGE WILBER:
Can you tell me what your definition l
23.
of design load is now?
l 24 MR. ELLIS:
Yes, sir.
I think my definition of l
25 design load is the same definition as~is used in the IEEE f
i
38 1
standard and is used by the Staff.
It's also LILCO's O
2
. definition.
But, if you will permit me, in layman's terms, 3
it's the aggregate load of that equipment required to respond 4
to the design-basis accident and mitigate the accident.
5 JUDGE WILBER:
That's the same as MESL, the 6
expression they used, the MESL7 7
MR. ELLIS:
Yes, sir, that's correct, the MESL.
8 JUDGE ROSENTHAL:
Well, you do agree that at these 9
facilities listed in that table, there is a margin that 10 exceeds the margin at Shoreham.
11 MR. ELLIS:
I think what the table shows -- yes, sir 12
-- the table shows margins all the way from three' percent to
()
13 very large percentages.
14 JUDGE ROSENTHAL:. Granting that that doesn't 15 necessarily mean that there was some requirement along that 16 line, why wasn't that enough to get that table into evidence 17
.for the purpose of then exploring whether the load margins' 18 at those reactors was indicative of a Staff interpretation of 19 GDC-17 and accompanying requirement, or whether it was pure 20 happenstance, or whether it was simply a matter of the 21 utility's own choice?
22 In other words, even if that table, of itself, did 4
23 not conclusively establish that the Staff had this practice
(
}
24 which the utilities were following in regard to those 25 reactors, why wasn't it at least relevant enough to get it in
39 1
there and open the door to an exploration as to whether those 2
load margins did reflect the Staff practice, indicative of the 3
Staff practice?
4 MR. ELLIS:
In the first place, they were not 5
precluded from asking about what -- whether there was a 6
practice.
They were never precluded from that.
I can show no 7
place in the record where they were precluded from that.
8 As I already indicated to the Board, there is 9
evidence in the record as to what the practice is.
It is in 10 the Reg Guide and the IEEE standard, which says you use them 11 to the limit.
l 12 Secondly, as the Board, I think, pointed out, there
(
13 has got to be some threshold showing not only that it's 14 reliable under the regulation -- I've forgotten the number 15 now, but the regulation that requires some threshold showing 16 of reliability, and moreover some threshold showing of 17 relevancy, other than the mere fact of these figures.
18 Moreover --
19 JUDGE ROSENTHAL:
These tables -- that table being 20 in evidence -- could the Intervenors have asked the Staff i
21 witness whether the load margin in a particular plant was 22 such-and-such and the load margin in another plant was 23 such-and-such, and then have explored the reasons for that
()
24 margin with the witness?
l 25 In other words, did they need to get this table into
40 1
evidence, or could they have just used it as a basis-for 2
cross-examination?
3 MR. ELLIS:
Hypothetically,'I don't know what my
~
4 reaction would have been and what the Judge's ruling would 5
have been.
6 I can tell you they were permitted to ask, and they 7
did ask:
Do you know of any other case where the single worst 8
operator error load is not encompassed by the short-term 9
rating?
10 It is that series of testimony that I summarized at 11 the outset.
Whether Judge Brenner and the Licensing Board 12 would have permitted them to go into these collateral matters
()
13 14 JUDGE ROSENTHAL:
What collateral matters?
Ask a 15
_ question of the witness, could they have taken a list of 16 plants in the United States and said to the Staff, "All right, 17 let's take them one at a time.
What is the margin at Plant 18 X?
What is the margin at Plant Y?
What is the margin at 19 Plant Z?"
20 That would have been collateral?
If so, I don't
'21 understand why.
22 MR. ELLIS:
That would have involved the Licensing 23 Board, given the argument that we have made in our brief, 24 given the lack of any showing of similarity or-that the
)
25 situations-were similar between Shoreham and all these other
i 41 l
1 plants.
Indeed, one of them, as he indicated, was prior to j
2 GDC-17..
I think there are others as well.
l 3
I:think that would have been collateral, to have l
I I
4 been investigating whether the 2000 hour0.0231 days <br />0.556 hours <br />0.00331 weeks <br />7.61e-4 months <br /> rating is equivalent 5
to the MESL or the qualified load.
6
' JUDGE ROSENTHAL: 'Wouldn't the answer have been, the i
7 witness could have said, "Yes, there was this different load 8
margin, but it didn't reflect Staff practice.
What it i
9 reflected was that you had different conditions."
l 19 We are dealing here not with a matter of relevance',
i
~
but.rather with a matter of what a particular piece of 11 12 evidence might conclusively establish.
)
13 MR. ELLIS:
I do not believe that that evidence 14 would have been relevant.
15 JUDGE ROSENTHAL:
So you don't think that they could 16 get in at all to-the matter of what were load margins at other
~
17 plants, in connection with their. inquiry into wh' ether there 18 was a uniform Staff interpretation and application of GDC-17 l
19 along the' lines that they.are suggesting?
4 29 MR. ELLIS:
I do think it's relevant whether there I
21 was a consistent Staff interpretation of GDC-17.
22.
JUDGE ROSENTHAL:
You don't.think it's relevant to 23 that question -- what happened at particular other facilities?
()
24 MR. ELLIS:
Only if they could show all of the facts
~ 25.
that I-indicated were-predicates to relevancy -- namely, that r
l
?
42 1
it was a Staff imposition, that it was consistent, that, as 7--
NJ 2
this Board asked -- I think one of the opening questions was, 3
What is the consistent margin?
4 There is no consistent margin.
There's nothing on 5
the table about operator error loads.
That's the contention, 6
that it's operator error loads.
And they have some 7
preliminary obligation to make some showing,.and they 8
certainly had every opportunity.
They had depositions.
They 9
had hearings.
They had plenty of Staff witnesses they had the 10.
right to subpoena.
And they did none of those things.
11 JUDGE ROSENTHAL:
Were they denied the opportunity 12 to cross-examine any particular Staff witness that they sought l'~\\
(ms/
13 to examine?
14 Maybe I ought to ask that question of Mr. Goddard.
15 MR. ELLIS:
Not to my knowledge, Judge Rosenthal.
16 JUDGE ROSENTHAL:
There was' not a question of the 17 Staff objecting to a particular endeavor of discovery?
18 MR. ELLIS:
Not to my knowledge.
19.
JUDGE ROSENTHAL:
I'll ask Mr. Goddard about that.
20 MR. ELLIS:. I have reviewed with the Board, the 21 Appeal Board, the fact that GDC-17, the Regulatory Guide, and 22 the IEEE standard that it endorses, do not use the term 23
" margin," do not require a margin, and on the contrary, state 24
' explicitly that the diesel generators may be used to the limit
()
25 of their ratings.
That is -- and it certainly would have been l
l
43 1
quite easy for the Staff to write in, "And we require a margin 2
sufficient to satisfy the single worst operator error load 3
that may be inadvertently _added."
4 JUDGE ROSENTHAL:
Given the terms of GDC-17,.as you 5
understand them, could the Staff, without amanding GDC-17, 6
have required this additional margin, or are they stuck with 7
GDC-17 as written?
1 8
MR. ELLIS:
I do not believe that they could -- that 9
they could construe GDC-17 to require accommodation of the 10 single worst case operator error load, because in that event, 11 they would be going beyond the single failure.
They would be 12 requiring a double additional failure.
(
13 The diesel generators, the Shoreham diesel 14 generators -- and I will mention in a minute that that's not 15 entirely _all that's there -- but the TDI diesel generators are 16 single-failure-proof, in the~ sense that if you add -- if an 17 operator were to erroneously or inadvertently add a single' 18 worst case error, and in the unlikely event that happened, and
~
2 19 in the unlikely event that that caused a failure at the
-20 diesel, two diesels are sufficient to shut _down the plant, and 21 therefore there is a single failure for the Staff to construe, 22 if that each diesel has'to do that -- would be well'beyond the 23 single-failure crit'erion in GDC-17 and elsewhere.
(
24 May I inquire how much time I have?
25 JUDGE ROSENTHAL:
Yes.
I'm sorry that clock is not
44
.-r 1
quite functioning.
You have about twelve minutes.
2 MR. ELLIS:
Thank you.
3 The County's contention that GDC-17 has been 4
interpreted to involve a standard for reliable EDGs that is 5
more than 20 times higher than the standard applied to the 6
Shoreham EDGs, I.think that amounts to a sleight-of-hand, 7
because what they have done is taken data for selected plants, 8
which may or.may not be defined on a consistent basis --
9 there's not any indication whether peak load, as reflected on 10 that table, is uniformly defined for all of the plants.
-11 The County takes the average value of this data, 12 which, in our view, is meaningless, as we point out in our 13 brief, and therefore we-think the use of averages is totally 14 meaningless.
15 It also disregards conservatisms.
Now Mr. Palomino 16 makes the point, where is the margin of safety?
Well, I'll 17 tell him where the margin of safety is.
)
18 As the Licensing Board found, the.IETs are a better 19
-- the integrated electrical test measurements are'a better 20 measure of what the design loads are.
21 JUDGE WILBER:
Dr. Berlinger, he may have said ' hey t
22 are better,'but he also had a statement on the accuracy of 23 them, didn't he?
(E 24 MR. ELLIS:
Yes, sir.
There is nothing that's 25 exact.
I think that's his --
\\
45 1
JUDGE WILBER:
I thought it was because of the
(/
2 conditions of the plant.
3 MR. ELLIS:
Yes, sir.
There was a very substantial 4
amount of testimony.
Judge Brenner required LILCO to bring 5
back its witnesses -- I have forgotten; it was over a weekend 6
-- and spent an additional day on that subject.
And the 7
County and the Board cross-examined LILCO's witnesses 8
vigorously on the conditions under.the IET, and you can never 9
replicate with every last jot and tittle what's going to 10 happen right after a loop LOCA, but the IET, as the LILCO 11 witnesses pointed out, does a pretty good job, and ultimately 12' the Licensing Board was persuaded and noted in its findings n
(_)
13 that it is a more accurate estimate of the MESLs than the 14 conservative methods used by LILCO in calculating and 15 measuring the individual loads.
16 So there is plenty of margin already there, on the 17 order of -- as you will' recall from our figures and the 18 findings in the PID -- they are in the range of two to three 19 to four hundred kilowatts.
20 What more is there?
Well, there is 10 to the 7th 21 testing.
Tha.t.is a very rigorous requirement.
And after the 22 DRQR, after the additional preoperational testing, then it was 23 run 10 to the 7th cycles, and then it was looked at again, the 24-crankshaft was looked at again, and some other components were 25 examined again, and there were more inspections -- a very b
.u,
,vq-
46
'l.
rigorous standard.
2' And therefore, there is that, that other plants 3
around-the country do not have.
These are the actual engines 4
tested.
And, of course, as Mr. Palomino knows or should know, 5
we also have the EMD diesels on site.
In fact, by my 6
calculation, there's 108 megawatts of fossil power at Shoreham 7
for an 890 megawatt reactor.
There are Colts in the gas 8
turbines in the EMDs.
9 In any event, there is little doubt that there is 10 ample protection for the people of New York State, contrary to 11 Mr. Palomino's remarks.
12 We also pointed out that the irrelevancy of the 1
)
13 excluded evidence and its collateral nature is quite apart 14 from its reliability, and we think that there is a threshold 15 requirement on reliability that was not made under 2.743, 16 which I have mentioned.
1 17 On the collateral point, we think that some of the 18 points we raised in our brief on collateral. matters actually 19 also helps to underscore the irrelevancy of it -- namely, the 20 comparison of apples and oranges, or at least the uncertainty 21 of that.
And we think that just hints, begins to hint at the
~
22 kind of scope of additional litigation you are talking'about, 23 about whether that plant is'really equivalent to this one,
/T 24 about whether it was imposed, about whether the utility may V
25 have put-the extra margin in there'for load growth.
l
47 1
Again, I bring out the fact that we don't agree with 2
some of the figures that are stated there.
3 Final.ly, as addressed in LILCO's brief, the excluded 4
evidence,.we do not believe would have substantially affected 5
the outcome, even it had been admitted.
The requirements of i
6 GDC-167, as-I reviewed ~it, are clear on its face.
7 Mr. Palomino said here and the County said in its 8
brief that it is subjective, that there aren't any standards.
b 9
We disagree with that.
Ws think GDC-17 does give a clear 10 standard.
Namely, it tella you, you must_ satisfy -- have 11 equipment operate that satisfies certain functions.
That 12 equipment can be identified.
The loads on that equipment can 13 be either measured or the use of nameplate: loads to satisfy
~ hose functions following.a loop LOCA, they can be aggregated, 14 t
15 and that's what your diese,1 generators must accommodate, and 16 that's what'was done at Shoreham.
17 JUDGE EDLES:
As a-layman, explain to me, how come
~
18 all these other plants have these wide margins?
l'9 MR. ELLIS:
It would be speculation on my part, but 20 I can give you some idea of that.
21 In the first place, the FSAR information is often 22 updated.
That ~is one of the reasons why I think we disagree 23 with lots of what is on the County's table.
When you begin to
()
24 design a plant, at the outset you may want to'have a lot of 25 margin to anticipate load growth, and'indeed_that happens at f
l l
48 1
every plant.
There is a substantial amount of load growth in Os 2
the construction process, particularly if you began the 3
construction process prior to TMI and are completing it 4
post-TMI.
There is a very substantial amount of load growth.
5 So that is one reason why'some of those might be in 6
there, in addition to which, we really. don't know what is 7
meant by peak load.
We don't know whether they are talking 8
about an arithmetic addition of the loads, whether they are 9
talking about sequencing these loads.
There is a great deal 10 we don't know about those.
11 But what we do know is-that if a loop LOCA occurs at 12 Shoreham, we know what the loads are, both from the IET and
)
13 from the measurement and the nameplate, and we know from a 10 14 million-cycle test that those diesels can handle that with 15 adequate assurance, more than reasonable assurance.
16-I think, as I was saying, that the excluded table, 17 even if admitted, would not ha've affected the outcome, for~the 18 reasons'that I've stated.
It would have been.ent.itled to 19 little or no weight, particularly given the Staff's 20 reaffirmation of its position in testimony and findings, and 21 the absence'of any -- there were no County witnesses or
~
22 testimony with specific knowledge of all the listed plants.
23 We think amp'le conservatism has been demonstrated n 24 the Shoreham MESL 'and the qualified l'oad determinations.
)
25 I think it is telling that, following this complex i
49 1
litigation, the 42 days of hearings, the 32 witnesses, and s
2 there was discovery beforehand, that the County and the State 3
have appealed the exclusion of just this single piece of 4
evidence.
5 No one present during all of these days of hearings 6
-- and as I said, I-may be the only one with that dubious 7
distinction; I'm not sure -- could fail to conclude that the I
8 Licensing Board conducted a thorough and thoroughly fair 9
hearing, and that it found~the Shoreham diesels suitable for le nuclear service for the first fuel cy'cle, only after holding 11 the Applicant to a rigorously high standard which the Staff 12 had held it to through all of the-Owners. Group activities and l
(
13 through.this extensive DRQR and additional testing.
14 Accordingly, for-all.the reasons I have stated here 15 and for the reasons that:are contained in.the Applicant's
~
i 16 brief, we respectfully submit that the Appeal should be 17 denied.
18 JUDGE ROSENTHAL:
Thank you, Mr. Ellis.
l i
19-Mr. Goddard?
t 29 MR. GODDARD:
Yes.
. Judge Rosenthal, the Staff j
21 would respectfully request a brief break prior to the:
22 presentation of its argument.
i 23 JUDGE ROSENTHAL:
Five minutes.
Is that sufficient?
t 24 MR.' GODDARD:
Five minutes will suffice.
25 JUDGE ROSENTHAL:
We will recess for five minutes.
r
,.r.
.m...,
..-,_,.--__--m.,
...y
50 1
I will request Counsel to be back at the end of that five 7-kl 2
minutes.
s 3
[Brief recess.]
4 JUDGE ROSENTHAL:
Mr. Goddard, you may proceed.
5 ORAL ARGUMENT ON BEHALF OF 6
THE NUCLEAR REGULATORY COMMISSION STAFF 7
BY RICHARD J. GODDARD 8
MR. GODDARD:
Thank you.
9 JUDGE EDLES:
Mr. Goddard, before you proceed, or at 10 the beginning of your talk, explain to me why the Staff 11 decided on a somewhat different methodology for testing the 12 diesels at Shoreham, p
13 MR. GODDARD:
Yes, Judge Edles.
14 The Staff evaluated a different methodology which 15 was submitted to it by the Applicant, Long Island Lighting 16 Company, as the Applicant is permitted to do under the 17 provisions of Regulatory Guide 1.9.
18 The engines are required to meet the standard, the 19 regulatory standard set forth in GDC-17 as to capacity and 20
. capability to perform certain functional requirements.
21 One of the methods of meeting that regulatory 2
22 standard which has past acceptance by the Staff, is that which 23 is set forth in the IEEE Standard 387-1977, which is-l 24 incorporated in Reg Guide 1.9 Revision' 2.
}
25 The Applicants proposed, as result in part, of Staff
51 1
dissatisfaction with the acceptance of these engines without s
~'
2 significant testing, to use the methodology which we refer to 3
herein as the qualified load.
And the Staff evaluated the
~
4 engines based upon that methodology which was proposed by the 5
Applicant.
6 JUDGE EDLES:
Do I understand then that the reason 7
for not using the 1.9 methodology is that there hadn't been 8
adequate testing of the diesels under that methodology?
Is 9
that what you are saying?
That there wasn't time available to 10 do the testing?
11 MR. GODDARD:
I would say there was time available 12 to do the testing.
The Applicant chose to avail itself of the
/^^\\
(,,/
13 Reg Guide provisions which allowed for an alternate 14 methodology for acceptance of the engine.
This was part of 15 the TDI Owners' Group Program Plan recommendation which was 16 worked out conjointly between the Staff and a number of 17 TDI-owning applicants.-
18 JUDGE EDLES:
Then why did the Staff earlier feel 19 that the 1.9 methodology was insufficient?
20 MR. GODDARD:
I don't know that the Staff ever took 21 the approach the 1.9 methodology itself was insufficient.
22 We did insist on testing which would have taken the 23 specific engines at Shoreham station, and I-believe a number 24 of_the other TDI engine's beyond the limited testing required
~
[
25 under the Reg Guide methodology.
52 1
This being the case --
Q 2
JUDGE EDLES:
Is Mr. Ellis's characterization 3
accurate, when he says there was some Staff skepticism about 4
the reliability of the diesel so you wanted some testing above 5
and beyond that which otherwise had been required under 1.9?
6 MR. GODDARD:
That is correct.
7 JUDGE ROSENTHAL:
All right, Mr. Goddard,.let me ask 8
you this.
9 Was there any endeavor of either the County or~the 10 State to obtain discovery of the Staff which was rebuffed 11 successfully by the Staff?
12 MR. GODDARD:
No, there was not.
13 The Staff made available for' deposition or other 14 discovery means, all witnesses who they~were proposing to have 15 testify as witnesses at th,e hearing.
16 JUDGE ROSENTHAL:
Supposing that the Intervenors, in 17 their desire to ascertain precisely what the Staff practice 18 was, had sought in the discovery process or.to-get at Staff i
19 officials or employees who would have been intimately familiar 20 with that practice under GDC-17 -- first, was that endeavor 21 made, and second of all, had it been made, would there-have 22 been a problem about their getting those witnesses?
23 MR. GODDARD:
No endeavor was made, certainly to the 24 best of my knowledge, other than beyond the fact that the
()
25 County did in fact depose Dr. Berlinger and Mr. Knox.
53 I
1 JUDGE ROSENTHAL:
And these are knowledgeable people 2
as to the practice?
3 MR. GODDARD:
Mr. Knox is in the branch which 4
normally performs this analysis.
5 Dr. Berlinger was in charge of the entire TDI 6
Owners' Group licensing project, for want of a more specific 7
term.
8 JUDGE WILBER:
So Dr. Berlinger might or might not 9
be' familiar with general practices by.the NRC as far as these 10 are concerned?
11 MR. GODDARD:
I think it would be fair to say that 12 he would be, insofar as this was concerned, by the nature of b
(_j 13
.the duties he was performing at the time.
14 Mr. Knox would be, and was, the more appropriate 15 witness.
16 JUDGE ROSENTHAL:
In any case, if I understand you 17 correctly, the Staff interposed no obstacle to the Intervenors 18 reaching Staff witnesses who would have been knowledgeable on 19 the subjects of what the Staff practice was with respect to 20 the interpretation and application of GDC-17 in this respect?
21 MR. GODDARD:
That is correct.
22 And, in fact, I only mentioned Dr. Berlinger and 23 Mr. Knox.
The County did,~in fact, depose other Staff
('N 24 witnesses, but not directly on this point, as it affected the
\\s-25 application of GDC-17.
4 54 1
JUDGE ROSENTHAL:
All right.
O 2
Now let me ask you if I may, a further question, the 3
question that I asked Mr. Ellis.
And that is, do you think 4
that' consistent with GDC-17 as written, the Staff could have 5
adopted the practice which the Intervenors claim their 6
excluded evidence suggested that the Staff had adopted?
7 AR. GODDARD:
Bf that I trust from your earlier.
8 question, Judge Rosenthal, you mean could the Staff have 9
required a margin over and.above the capability to meet the I
10 essential loads, to meet the functional tests of GDC-17?
11 My answer to that would be, as an attorney, no.
12 As an engineer, there is no showing that the Staff has at any 3
13 time required a margin.
14 The table, Suffolk County Exhibit 85, is only 15 indicative if you accept it as face value -- and as pointed 16 out by'LILCO in detail in a brief and in Mr. Ellis's oral i
1 17 argument, is subject to at least certain facial discrepancies.
18 By accepting that table at face value, it only purports to 19 show the; existence of margins at certain facilities, and in no 20 way demonstrates any evidence of Staff requirements or 1
21 practices.
22 JUDGE ROSENTHAL:
But you are telling me that in 23 your' judgment as a lawyer, that the Staff could not have l
/~'s 24 imposed that kind of requirement without an amendment to 25 GDC-17?
l y
_.y
l 55 1
MR. GODDARD:
Or, at the very least, without an O,
2 interpretation of GDC-17 to show that a margin was required to 3
specifically meet a valid engineering standard.
4 JUDGE ROSENTHAL:
So it could have been done on the 5
latter basis without having undertaken to amend the terms of 6
GDC-17 itself?
7 MR. GODDARD:
If GDC-17 were interpreted to require 8-a margin.
However, the testimony was that no margin was 9
required.
And in fact, the Reg Guide 1.9, which was cited by 10 Mr. Ellis, I believe, Section 5.3.9 indicates no requirement 11 for a margin, and authorizes utilization of the engines to the 12 stated loads.
)
13 JUDGE ROSENTHAL:. I understand you are telling us 14 that there wasn't this requirement.
15 What I'm getting at is whether, within the terms of 16 GDC-17 as currently on the books, there was room for the Staff 17 to impose that kind of requirement if it felt that as a matter 18 of safety or engineering or whatever you want to call it, it 19 was warranted.
20 MR. GODDARD:
I guess I have to answer that it has 21 not been so interpreted, and I do not see any room for an 22 interpretation to require margin.
23 JUDGE ROSENTHAL:
You say they would have to amend
{
)
24 GDC-17 to accomplish that.
25 Well, I take it there is some uncertainty as to i
i l
I
.__-.m
~
i 56 1
whether your-opinion is the legal opinion of the Office of the f3 c
O 2
Executive Legal Director in toto.
You may, if you wish, 3
supply within one business week, a short statement of the 4
Staff's position on that.
5 Do you understand the question?
6 MR. GODDARD:
Yes.
7 JUDGE ROSENTHAL:
My question is, we have a lot of 8
conversation here about practice -- what might or might not 9
have been the Staf f's -practice ~ in this regard.
Whether this 10 particular exhibit was illustrative, or might have been 11 relevant in the matter of Staff practice.
12 And my question is, whether taking the GDC-17 as 13-written, there could have in the Staff's view, lawfully been 14 the kind of practice that the Intervenors claim their table 15
' establishes?
16 MR. GODDARD:
I believe I can answer the question as 17 you have amplified it, Ju(lge Rosenthal.
18 The interpretations to date, and the Staff practice i
19
-- NRC Staff practice as testified to, do not require such 20 margin.
GDC-17, although qualitative and not quantitative, is
[
i 21 clear on its face that it requires only the satisfaction of f
22 certain functional requirements.
f 23 Such satisfaction, as most regulations, is only a e
1
[~')
24 minimum test.
The fact that a greater -- that a margin may f
%.)-
25 exist does not mean that such a margin may be required.
The f
i i
-s
57 1
regulation only requires that the standard be met, and by 3
2 definition that would appear to include no requirements for a 3
margin.
4 JUDGE ROSENTHAL:
All right, that says enough.
5 MR. GODDARD:
The Staff would summarize its position 6
as being that the exclusion of Suffolk County Exhibit 85 and
~
7' the corresponding testimony was in no way erroneous, as it was 8
irrelevant for the Applicant's chosen method of demonstrating 9
satisfaction of GDC-17 regulatory requirements, using the 10, qualified load methodology.
That methodology was developed as t
11
-part of the TDI Owners' Group program plan in 1984 for all TDI 12 engines, plant specific safety evaluation reports for 13' Shoreham.
And the other plants did issue.
14 And it would appear from the brief. filed by Suffolk 15 county, and as amplified by the argument of counsel for New 16 York State today, that the objection which the County and 17 State-have-is to a failure _~to demonstrate compliance with the 18 regulatory guide.
19 As this Appeal Board and the Commission have held 20 previously in several opinions, regulatory guides are not the
~
21 sole means of satisfying regulatory requirements.
Staff would 22 submit that the argument of the Appellant would appear to 23 confuse regulatory requirements with regulatory guide guidance
/N 24 or advisory language as to a method by which the regulation b
25 can be satisfied.
I
58 1
I think it is;necessary to look at the history of
(_s)
\\>
2 these engines, and the significant deficiencies which occurred 3
during the preoperational testing, the replacement of 4
components of those engines which is noted in the record, to 5
understand that the Staff had a valid basis for requiring 6
testing over and above that which would have been required if 7
the Applicant were to have chosen to follow Reg Guide 1.9 IEEE 8
87 methodology.
9 And accordingly, the Applicant chose to present a 10 demonstration of the capability and capacity of these engines 11 by a methodology which' incorporated the results of actual 12 testing and measurement rather than incorporating a number of
()
13 conservatisms which are included in the regulatory guide 14 approach.
15 JUDGE WILBER:
In your brief, and I believe also 16 in the Licensing Board's decision, they referred to this 17 qualified load concept as an interim licensing basis.
18 What does " interim" mean?
Are they sometime in the 19 future going to revert back to Reg Guide 1.9?
20 I don't understand the significance of " interim."
21 MR. GODDARD:
The use of the term " interim licensing 22 basis" refers to the licensing of these -- or the 23 qualification and licensing of these diesel engines up through 24 the first refueling outage, at which time by commitments of i
[
25 LILCO and the --
59 1
JUDGE WILBER:
No.
I think the interim refers to 2
the generic safety evaluation report which are all Licensees 3
that have these diesels..In fact, I believe your footnote 4
mentions th'at, Footnote 6, the last sentence in your Footnote 5
6.
6 MR. GODDARD:
It is my_ understanding, Judge Wilber, 7
that that is'a reference to the idea that these engines would 8
be inspected and that they_would not be simply licensed for 9
the life of the plant.
If that is not the case, then I am in 10 error.
That is my understanding 11 JUDGE EDLES:
Mr. Goddard, is the Staff still reviewing the training procedures in connection with loads to 12
)
13 the diesel?
14 MR. GODDARD:. The Staff was reviewing the training procedures subsequent to the issuance of the Partkal Initial 15 16 Decision.
17 JUDGE EDLES:
What 13 the status now of that review.
18 MR. GODDARD:
May I con.s-
.fith --
19 JUDGE EDLES:
Bring an expert into the booth with 20.
you.
21 MR. GODDARD:
May I bring an expert into the booth?
22 Thank you.
23 JUDGE EDLES:
Go right ahead and identify yourself
()
24 for the reporter.
25 MR. CARUSO:
I am Ralph Caruso.
I-am the Shoreham
60 1
Project Manager.
s 2
The Staff has completed its review of the training 3
and procedures, and has found them to be acceptable, subject 4
to the modification of certain of-those procedures by the 5
utility.
The Staff is in the process of publishing the Safety 6
Evaluation Report, and expects to'do that within the next, 7
approximately, two weeks.
8 JUDGE EDLES:
Thank you very much.
9 JUDGE WILBER:
Perhaps one more question on that 10 same line.
11 The Applicant, I believe said -- assured us -- that 12 there was no single failure where two diesels could be
()
13 impacted.
14 Has the Staff reviewed this?
Has the Staff looked-15 at interactions?
16 MR. CARUSO:
Yes.
The Staff looked at the 17 procedures and determined that with the implementation of the-18 procedural changes that the Staff determined should be made, 19 with the installation of a distinctive alarm in the control 20 room to warn the operators when the engines exceeded 3300 kw, 21 if that were to occur for some reason, and with the training 22 that had been proposed by the Licensee, that there were no 23 single operator actions which could occur, which could cause
/~h 24 more than one engine to be overloaded.
25 Essentially, the way the Staff -- the Staff
-1
61 1
conclusion says; with the implementation of these three 2
factors, the alarm, the training and the upgrading of the 3
procedures, the possibility of more than one diesel being 4
overloaded' is reduced to an acceptable level to the Staff.
5 JUDGE ROSENTHAL:
You have about one more minute, 6
Mr. Goddard.
7 MR. GODDARD:
Thank you.
8 Based upon the Staff's emphasis on the 9
differentiation, which the Appellant is apparently not 10 making between regulatory requirements and regulatory 11 guidance, I will only turn briefly to the question of whether 12 or not this error, if it were such, would have impacted the
()
13 outcome of the proceeding.
14 It is the Staff's. position that error, if there was 15 any, was harmless because of the fact that this showing of an 16 inability to meet the IEEE 387 standards, if it were in fact-17 to be demonstrated by virtue of the excluded evidence, or any 18 additional evidence which the Appellant might have produced 19 through cross ~ examination or otherwise, and which was alluded 20 to in the oral argument here today, would not have bearing 21 upon whether or not the engines Here qualified or were in 22 compliance with GDC-17 furv%b ne' requirements under the 23 qualified load methodology.
24 There has at no time been any requirement that these 25 or any other enginas be qualified under numerous l
1 62 1
methodologies.
It is sufficient if an Applicant chooses a 2
methodology by which it can be demonstrated to the 3
satisfaction of the Staff in the review process, that the l
4 engines meet regulatory requirements, in the opinion of the 5
Staff this was amply done by the Applicant in its application 6
of the qualified load methodology to the Shoreham emergency 7-diesel generators.
3.
8 JUDGE ROSENTHAL:
Thank you, Mr. Goddard.
9 Mr. Palomino you have ten minutes for rebuttal.
19 REBUTTAL ARGUMENT ON BEHALF OF THE STATE OF NEW YORK i
11 BY FABIAN PALOMINO 12 MR. PALOMINO:
To get something very straight right 13 at the beginning.
Mr. Goddard said that there was no room for 14 interpretation because nothing mentions -- neither the j
15 guidance nor the GDC menti,ons margins.
16 Now, I have before me here your guidance, Regulatory 17 Guide 1.9, paragraph B, Discussion.
Page 1.9-2, la'st i
18 paragraph in B.
It says:
l 19 "The uncertainties inherent in estimates of safety 29 loads at the construction permit stage of design are sometimes 21 of such magnitude that it is prudent to provide substantial 22 margin in selecting the load capabilities of the diesel 1
23 generating units.
i l
24 JUDGE WILBER:
And the last sentence in.that 25 paragraph?
I i
63 1
MR. PALOMINO:
Then it goes on to the licensing b
2 stage and it says you can be less conservative in the margins.
3 JUDGE WILBER:
In fact, you can work up into the I
4 short term --
i 5
MR. PALOMINO:
So there is definitely room for the 6
engineers to provide the kind of margins we are saying that 7
these standards required as a standard practice.
So that 8
legally there was nothing wrong with it, and it is our 9
contention they have done it.
f 10 There is also a sound reason even at the licensing 11 stage.
As'LILCO points out in its brief, that we don't show 12 the latest FSARs of these plants.
O)
(_,
13 The reason you have margins is because they might i
14 add loads.
And that would impact on safety.
So that you need 15 margins.
And that is why the engineers' requirements --
i 16 undoubtedly why our contention is right, that they have been 17 applying them all along as a' standard practice.
j 18 Now, the second thing is Mr. Goddard talked about i
19 the testing was a reason.
20 The reason the hearings were going to conclude --
21 and they were going to show that these engines were not safe.
22 The fact is, they.had Colt diesels there.
They could have put f
23 them on line.
The reason-they wanted to do it is use this
(~1^'T 24 Board to load these in the rate base, to get a double I
~
25 recovery.
And that is the reason they went for this design k
h
+
64 1
basis load.
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2 The fact in --
3 JUDGE EDLES:
Mr. Palomino, I thought Mr. Goddard
~4 said this was part of a more generic program that involved 5
these types of diesels at other plants as well, not because of 6
the loading of the rate base at Shoreham.
7 MR. PALOMINO:
It may be.
8 But it may be that this one was under challenge and 9
they wouldn't have qualified it.
And then they wouldn't have 10 gotten them in the rate base.
11 Turning to interim licensing as you. inquired, Judge 12 Wilber, the fact-is whether it is interim or not doesn't 13 escape compliance with-GDC-17.
14 The only way they could do that is by a waiver, and 15 they couldn't get a waiver because we would show they had 16 Colts ready to go.
17 As far as going into LILCO's testimony, he says the 18 table doesn't show that this was applied.
19 We said the combined table in the testimony.
It 20 wasn't a thrust at just the table..
We said the table showed 21 the results.
22 He went into the fact that the testing showed these 23 engines to be sufficient.
24
'You know, we have heard that they are testing all
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12 5 along.
Before the crankshaft broke, there was sufficient.
i
65 1
After the crankshaft broke, before the piston bosses failed 2
they were sufficient.
3 You know this kind of puffing means nothing, you 4
know, except it ju t constantly proves you can't rely on what 5
they say.with respect to adequacy.
6 Now he talked about the single failure rule.
As I 7
pointed out before, the single failure rule presumes a 8
qualified engine, qualified units.
You can't use that as a l'
9 basis for saying they are qualified, t
is They also' talked about the integrated electrical 11 testing.
That also presumes a qualified engine.
It doesn't 12 prove -- doesn't make the engine qualified.
(
13 And he says'-- which was very interesting -- and I'm
~
14 talking about Mr. Ellis -- youlcan never replicate what is 15 going to happen after a loop LOCA.
That's right. That's why 1
16 you need margins.
l 17 I don't have anything further to say.
18 JUDGE EDLES:
My recollection -
just let me clarify 19 with you.
My recollection is you couldn't replicate, but at 29 least they knew all the loads that would be applied to the 21 diesel in the event of a loop LOCA.
22 MR. PALOMINO:
Yes.
You know all the loads, but 23 that doesn't replicate what could happen, and that Lis why 24-safety margins'are required, have been required.
~
25 The fact is, we think we didn't get a fair hearing.
q i
t k
I
. -,.~
66 1
That we should have been able to admit evidence.
There is no 2
legal inhibition why the Staff could not have applied this 3
standard.
4 If they did, it would have resulted in either a 5
safety margin sufficient for the people of New York as to 6
everybody else, or it would have resulted in these engines not 7
being qualified _and them having to put the Colts on line.
8 JUDGE EDLES:
Mr. Palomino, do you have a view with 9
. regard to Mr. Goddard's statement that the testing program for 10 these diesels is more rigorous than the one that would have 11 been imposed under 1.9, under Reg Guide 1.9?
12 MR. PALOMINO:
Let me say this.
These engines are
()
13 troubled.
The Board set a standard for testing they didn't 14 want to comply with, which might have proved otherwise.
15 I don't know about whether they would have qualified 16 them or not.
But they are not ordinary, presumably good, 17 engines. They have rebutted that' presumption, and they should 18 have gone through the testing that the Board required.
They 19 sought to avoid it by this qualified load standard, and at 20 least to a lesser margin of safety.
21 Thank you.
22 JUDGE ROSENTHAL:
I want to thank on behalf --
23 Mr. Ellis?
4
/\\
24 MR. ELLIS:
Judge Rosenthal, I am reluctant to get U
-25
'typ, but I-know of no standard of testing by the Board, by the i
67 1
Licensing Board, that the Applicant has not complied with.
2 JUDGE ROSENTHAL:
Thank you.
We will note that for 3
the record.
4 On behalf of the entire Board, I would like to thank 5
counsel for their helpful presentations this afternoon.
6 The appeal of the State and County stand submitted.
7 Before, however,'we adjourn, it is my understanding 8
that Mr. Kelley has a matter he wishes to raise in connection 9
with the briefing of the County's appeal _from a portion of the 10 Licensing Board's Emergency Planning Decision of last spring.
11 So, we will leave diesel generators and, Mr. Kelley, 12 you may tell us what your problem-is.
()
13 This will be off the record.
The record can be 14 regarded as concluded before I got into this matter.
15 (Whereupon, at 4:15 p.m.,
the hearing in the 16 above-entitled matter was concluded.)
17 18 19 20 4
21 22 23 25
(%
4
)
k"
1 CERTIFICATE OF OFFICIAL REPORTER 2
3 4
5 This is to certify'that the attached proceedings 6
before the United States Nuclear Regulatory Commission in the 7
matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station Unit 1.)
e 9
Name of Proceeding:
Oral Argument 10 11 Docket No.
50-322 OL 12 Place: Bethesda, Maryland b
13 Date: Thursday, September 26, 1985 14 15 were held as herein appears and that this is the original 16 transcript thereof for the file of the United States Nuclear 17 Regulatory Commission.
19
' /'
(Signature) 3 j., g, y
[f ig (Typed Name of Reporter)
Mimie Meldzer 20 21 22
%_.))
[
23 Ann-Riley & Associates,
'td.
24 25