ML20236B497
| ML20236B497 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 07/24/1987 |
| From: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#387-4169 OL-1, NUDOCS 8707290128 | |
| Download: ML20236B497 (166) | |
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UNITED STATES NUCLEAR REGULATORY COMMISSION
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IN THE MATTER OF: DOCKET NO: 50-443-OL-1 50-444-OL-1 PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al. (Onsite Emergency Planning and Safety (Seabrook Station, Issues)
Units 1 and 2)
ORAL ARGUMENT O'
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LOCATION: CONCORD, NEW HAMPSHIRE PAGES: 1 - 160 DATE: FRIDAY, JULY 24, 1987
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PDE NATIONWIDE COVERACE
ll 8'3'40 01 01. 1 (q_Jrysimons 1 UNITED STATES OF AMERICA
'2' NUCLEAR REGULATORY COMMISSION 3 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL PANEL
- 4. __________---___x 5 In the Matter of: :
6 PUBLIC SERVICE COMPANY OF : Docket No. 50-443-OL-1 7 NEW HAMPSHIRE, et al. : 50-444-OL-1 8 (Seabrook Station, : (Onsite Emergency Planning 9 Units 1 and 2) : and Safety Issues) 10 ---------------X l
l 11 United States District Court 12 Courtroom No. 2 13 55 Pleasant Street-14- Concord, New Hampshire l
l 15 Friday, July 24, 1987 16 The oral argument in the above-entitled matter 17 convened, pursuant to notice, at 9:35 a. m.
18 BEFORE:
19 GARY J. EDLES, Member 20 Atomic Safety and Licensing Appeal Panel 7,1 U. S. Nuclear Regulatory Commission l 22 washington, D.C. 20555 1
23 .
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-13' HOWARD A. WILBER, Member
-(_Jrysimons 1 2 Atomic Safety and Licensing Appeal Panel 3 U.S. Nuclear Regulatory Commission 4 Washington, D.C. 20555 5 Also Present:
6 THOMAS G. SCARBROUGH, Technical Advisor to the 7 Appeal Panel 8 APPEARANCES:
9 On Behalf of the Applicants, Public' Service Company of 10 New Hampshire, et al.:
11 THOMAS G. DIGNAN, JR., ESO.
12 Ropes & Gray 13 225 Franklin Street 14 Boston, Massachusetts, 02110 15 On Behalf of the New England Coalition on Nuclear 16 Pollution:
17 DIANE CURRAN, LSO.
18 Harmon & Weiss 19 Suite 430 20 2001 S Street, N.W.
21 Washington, D.C. 20009 22 23 24 l 25 i
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l I 8340 01'01 3 I( rysimons~1 On Behalf of the Seacoast Anti-Pollution League 2 ROBERT A. BACKUS, ESO.
3- Backus, Meyer & Solomon ;
i 4 116 Lowell Street 5 -P. O. Box 516 j 6 Manchester, New Hampshire 03105 l 7 Oa Behalf of the Commonwealth of Massachusetts: i 8 DONALD S. BRONSTEIN, ESO.
Department of the Attorney General 9
10 Environmental Protection Division 11 John W. McCormack Building 12 One Ashburton Place, 19th Floor
'O 13 Boston, Massachusetts 02108 14 On Behalf of the Nuclear Regulatory Commission:
- 15. EDWIN J. REIS, ESO.
16 office of the Executive Legal Director 17 U. S. Nuclear Regulatory Commission 18 Washington, D.C. 20555 19 *****
20 21 22 23 24 25 ace-FEDERAL REPORTERS, INC.
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-( )rysimons 1 PR0CEEDINGS 2 JUDGE EDLES: Good morning.
3 My name is Gary Edles, and with me on my right 4 is Howard Wilber. We are two of the three Appeal Board 5 members assigned to the appeal in this proceeding.
6 As you can see, Mr. Rosenthal is not here. He 7 has taken ill and was unable to come to Concord thii 8 morning. But Mr. Rosenthal took part in our preargument 9 conference that "o held back in Bethesda on Tuesday and he 10 has advised me that he will review the transcript of the 11 oral argument and will participate fully in our disposition 12 of the appeals.
O 13 The order of appearance and the time allotment 14 are as agreed to by the parties and as set out in the 15 printed sheets which have been placed at the counsel 16 tables. -
17 I will ask the parties, please, for the reporter 18' to identify themselves formally for the record, and why 19 don't we start with Ms. Curran.
20 MS. CURRAN: My name is Diane Curran, and I 21 represent the New England Coalition on Nuclear Pollution.
22 JUDGE EDLES: Thank you.
23 MR. BRONSTEIN: My nama is Donald Bronstein, and 24 I represent Attorney General James Shannon.
O 25 JUDGE EDLES: Thank you.
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8340 01 01 5 rys'imons 1 MR. BACKUS: I am Robert A. Backus for the 2 Seacoast Anti-Pollution League.
3 JUDGE EDLES: Thank you, Mr. Backus. l 4 Mr. Dignan.
5 MR. DIGNAU: Members of the Board, my name is. -I 6 Thomas G. Dignan, Jr. I am a member of the firm of Roper 7 and Gray, 225 Franklin Street, Boston, Massachusetts, and I 8 appear for the applicants here.
1 9 JUDGE EDLES: NRC Staff.
l l 10 MR. REIS: My name is Edwin J. Reis. I appear 11 for the NRC Staff. With me at counsel table is Victor 12 Nurses who is the Project Manager for Seabrook.
) 13 JUDGE EDLES: Thank you very much.
14 Ms. Curran, we will begin with you.
l 15 You are allotted 40 minutes and have asked for 16 five minutes for rebuttal. So we will try and hold you to 17 tne 35 minutes.
18 ORAL ARGUMENT OF DIANE CURRAN 19 ON BEHALF OF l 20 THE NEW ENGLAND COALITION ON NUCLEAR POLLUTION 21 MS. CURRAN: Before I start, I just want to hand l
l 22 you copies of a couple of pages from our exhibits from the 23 hearing. This is just for informational purposes so that L
24 you can follow my argument a little easier.
LO 25 JUDGE EDLES: Fine. Do you have copies for ACE. FEDERAL REPORTERS, INC.
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l rysimons 1 other counsel?
1 j 2 MS. CURRAN: Yes. I can pass them out.
3 (The documents were distributed to the Board and 4 the parties.)
5 JUDGE EDLES: These niatorials that we are 6 getting now are all'taken from the record presumably and 7 you will identify the portions of'the record for us?.
8 MS. CURRAN: That's right.
9 JUDGE EDLES: You can as you go along, if you 10 don't mind.
11 MS. CURRAN: Okay, fine.
12 I would like to start with the environmental 13 qualification issue and. move on to the issue of.the denied 14 contentions.
15 NECNP's appeal of the Licensing Board's partial 16 initial decision raises two issues.
I 17 First, did the Licensing Boar d err when it held 18 that the record supported a finding that one type of 19 untested cable was qualified for a post-accident duration i 20 of one year by virtue of its comparison with another type 21 of cable that had been tested.
I 22 Second, given the extensive deficiencies and 1 23 incompleteness of applicants' environmental qualification, l
24 program as revealed in the NRC's preaudit review'and the O 25 audit, did the Licensing Board have a reasonable basis for ACE FEDERAL REPORTERS, INC.
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( rysimons I concluding that applicants have complied with the 2 Commission's requirement that safety equipment must be 3 demonstrably qualified for the duration of an accident.
4 I would like to begin as a preliminary matter.
5 with a little factual background on'the development of this 6 contention because applicants have contended that we have 7 unfairly expanded the scope of the contention.
8 JUDGE EDLES: Yes, I would appreciate a little 9 help in that regard since it does seem at least that the 10 language of the contention is not precisely the same as it 11 ultimately got litigated.
12 -MS, CURRAN: That's right. This contention O 13 challenges the applicants' failure to specify qualification 14 times for equipment important to safety.
15 When it was written in 1982, the FSAR did not 16 specify qualification times for most of the safety 17 equipment on the EO list. That information was submitted 18 several days before the hearings in 1983 began.
19 In the hearings in 1983 it was established that 20 applicants' equipment qualification program was still under 21 development. It was only about 80 percent complete and 22 that the NRC hadn 5 t even reviewed it yet.
23 Subsequent to the hearings, the applicants l
l 24 submitted a great deal of additional information, including
( 25 skew sheets, and I gave you a copy of a skew sheet from --
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'8340 01 01 8 rysimons 1 I'm sorry, I've forgotten the. number.
2 JUDGE EDLES: I think you've got Exhibit 4.
3 MS. CURRAN: Okay, Exhibit 4, which relates to a 4 certain type cable. The applicants submitted a number of 5 additional skew sheets that did specify qualification times 6 for these various safety components.
7 And in I think it was late spring or early 8 summer of 1986 the applicants asked the Licensing Board to 9 close the record. This information had been placed in the 10 record by the Licensing Board, and the applicants asked the 11 Licensing Board to close the record and issue a low-power 12 license.
O 13 In our response to the applicants' motion we 14 said we had no problem with taking that information into 1
15 the record, but we wished to have additio. 1 hearings on 16 the question of whether this information that had been I 17 submitted was adequate to chow that the applicants had 18 qualified their equipment for the time necessary to survive i 19 an accident. l
- 20. So the applicants were placed on notice at that j 21 point that now that this information had been submitted j 22 three years later that we wanted to litigate the question
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23 of the adequacy of the basis for those newly specified I 24 qualification times.
O 25 JUDGE EDLES: Was there any objection from the ACE FEDERAL REPORTERS, INC.
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! 't~)rysimons b 1 applicant or the staff?
2 MS. CURRAN: No objection that I know of.
3 We also in the discovery process -- well, first 4 of all, in our objection we stated we were interested in 5 certain equipment qualification files for which information 6 on submergence qualification seemed to be contradictory or 7 unclear.
8 In the discovery process we identified for the 9 applicants the equipment qualification files that we wanted 10 to review, and those were the files that were litigated in 11 the hearings.
12 So the applicants had notice not only that we O' 13 were interested in the basis for tne duration of 14 qualification times, but also what equipment qualification 15 files we were specifically interested in.
16 And given the fact that they didn't object to 17 our request for a hearing, it seems that their objection ,
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18 now is late. j 19 Our first challenge to the Licensing Board's 20 partial initial decision involves the adequacy of i
21 applicant;' environmental qualification records to support 22 a finding that coaxial cable numbered RG-58 is qualified to j i
23 withstand the specified post-accident duration of one year. )
24 This is cable that goes throughout the plant, )
O 25 inside containment and outside containment. The applicants 1
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( rysimons 1 avoided approximately 11 miles of this cable. It's a lot.
2- The equipment qualification file for this cable, 3 which is NECNP Exhibit 4, alleges that this cable is 4 qualified by comparison to another type of cable, RG-59 5 coaxial cable.
6 JUDGE EDLES: Were there witnesses on the stand 7 who testified to the similarities between the RG-58 and the 8 RG-59?
9 MS. CURRAN: They testified to the review that 10 was done.
11 JUDGE EDLES: Did you have an opportunity to 12 cross-examine those witnesses?
O 13 MS. CURRAN: Yes, I did, but they didn't provide 14 any technical basis for comparing those cables.
15 JUDGE EDLES: What was the basis for their 1
16 comparison?
17 MS. CURRAN: Well, the basis was the I
18 documentation in the equipment qualification file. We went 19 over the summary that is provided in the front of the file 20 of the equipment qualification check list which shows how 21 the applicant evaluated this particular component. And the 22 one reference that is given in the file in support to 23 document this qualification by comparison is the letter 24 form the manufacturer, ITT, to United Engineers which first O
\~ 25 makes a somewhat technical comparison between two other i
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.(O.,Arysimons-l types of cable in the file, and then goes on to talk about 2 RG-58 and says: "We feel similar concerning RG-58 LOCA 3 approval. Since we have chosen RG-59 for our LOCA program and have that approval and RG-58 has similar construction {
4 1
5 details, we are confident that had it been submitted it 1
I 6 also would have been approved."
7 JUDGE EDLES: Is the gist of your argument now, ;
8 Ms. Curran, that that letter simply is not sufficient to 9 show that the two types of cable were the same? l l
10 MS. CURRAN: Yes, because ---
! 11 JUDGE EDLES: That's the thrust of your 12 argument.
(
13 MS. CURRAN: And the reason is that the 14 regulations -- first of all, the NRC regulations prefer l 15 testing of safety equipment over any kind of other 1
16 analysis. If testing can't be done, then qualification by l
l 17 comparison, as was done in this case, has to be supported 18 an analysis.
I 19 JUDGE WILBER: And did you ask for that? You're 20 telling me I believe that they did provide that, but did 1
1 21 you ask for it on your cross-examination?
f 22 MS. CURRAN: I asked where it was documented in 23 the equipment qualification file, and certainly no one 24 offered to explain to me where in that file it was shown l O 25 that these were similar.
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l 8340 01 01 12 rysimons 1 JUDGE EDLES: Am I correct though that you put 2 on no affirmative case to demonstrate that the two cables 3 were not similar?
4 MS. CURRAN: No, I didn't. The applicants 5 claimed that they would never take at face value the 6 assertion of a manufacturer that something was qualified 7 and that they had performed an independent check.
8 But as we went through.the file it came back 9 that this so-called independent verification was based on 10 this letter, and there is no discussion anywhere in that 11 file of the technical similarities between these two 12 components. l O 13 Thus the only basis in that particular equipment 14 qualification file for this so-called qualification of this 15 component is a statement by the manufacturer that it was i l
16 confident in the similarity of the components. ;
17 The Licensing Board ---
i 18 JUDGE EDLES: Excuse me. Did anyone testify at j 19 the hearing in support of the letter? Did we get somebody )
20 to explain? Did we get the letter writer, for example, or 21 is this simply a document that was tendered into the record l 22 without a witness really explaining what the letter meant?
23 M9. CURRAN: The writer of the letter was not 24 called to the stand. It was the applicants who had relied O 25 on the letter testified to it.
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()rysimons1 JUDGE WILBER: Was this the applicants' person 2 that had done the review of the qualification package, is 3 that your witness?
4 MS. CURRAN: That's right. This was the 5 applicants' contrtctor that had reviewed all of the 6 qualification filen.
7 JUDGE EDLES: Basically the thrust of it is that 8 he or she found it perfectly acceptable?
9 MS. CURRAN: Well, the applicants' witness also 10 claimed to have independently verified the letter because 11 they said we would not accept bald statements like this 12 without checking them out. .The problem was there was.
O 13 nothing in that record to show that they had actually gone
.14 and done soma kind of a technical comparison with the 15 components.
'16 The Licensing Board said it found little 17 difficulty in accepting the manufacturer's certification.
18 Leaving aside the question of whether it is good judgment 19 to accept the self-serving statement of the manufacturer, 20 who has also stated that it was too expensive to test this 21 cable, the point is that there is no technical analysis in 22 that letter.
23 The Licensing Board then looked to other 24 documents in that equipment qualification file, O 25 specifically reference one, which consists of the materials ACE-FEDERAL REPORTERS, INC.
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fT l '(_Jrysimons 1 specifications for the cable, and found that or stated that 2 this was adequate to show what these cables were made of, l 3 and I suppose therefore they could be compared.
.4 I have passed out a copy of Appendix A to this 5 equipment qualification file reference one, which is part 6 of NECNP Exhibit 4.
7 JUDGE EDLES: Would you have a copy for our 8 technical adviser?
9 MS. CURRAN: Sure.
10 JUDGE EDLES: I would appreciate that.
11 (A copy of the referred to. document was handed 12 to Mr. Scarbrough.)
O 13 Does the reporter need a copy as well?
14 (The reporter indicated she had the documents 15 provided by Ms. Curran which are included in the back of 16 this transcript.)
17 MS. CURRAN: Now this just really summarizes the 18 characteristics of all the components in this particular 19 file, and I think if you will ---
20 JUDGE WILBER: Did you cross-examine on this 21 table?
22 MS. CURRAN: No, I didn't.
23 JUDGE WILBER: Was there some reason for not ---
24 MS. CURRAN: This was something identified by d 25 the Board. I didn't because it was ---
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I_Jrysimons1 JUDGE.WILBER: Well, it was your exhibit, isn't
'2 that right?
3 MS. CURRAN: That's right, but to me it didn't
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4 consist of an analysis and I didn't think it was relevant.
5 It's a description of what these cables are.made of.'
6 JUDGE WILBER: But you knew their witness had 7 said that RG-58 and RG-59 were comparable, or RG-58 was 8 going to be qualified by a comparison, and you didn't 9 pursue the material that was on this table then which chows 10 you what the makeup of the cables are, the dimensions and 11 all of that, and you did not pursue that.
12 MS. CURRAN: Because I was looking for an O 13 analysis of the similarities, and I think you can see from 14 this that the cables are different. They are not exactly 15 the same, and the differences may be significant. The 16 insulation thickness of RG-58 is less than RG-59, and that 17 may have some implication for moisture penetration.
18 JUDGU EDLES: Did you attempt to bring out the j 19 differences and distinctions during the course of the 20 examination or cross-examination?
21 MS. CURRAN: No, I didn't. But the fact remains 4 1
22 that in this particular equipment qualification file there 1
23 is no evidence that applicants analyzed the similarities 24 and differences and made some kind of a technical l
() 25 conclusion as to that, and it seems that if applicants had l l
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/~3 testified to that we could have cross-examined them.
(,;rysimons 1 2 Instead, the Licensing Board apparently made 3 that conclusion on its own, again without provide any 4 analysis of how it reached the conclusion that these were 5 sufficiently similar to support qualification by 6 comparison.
7 JUDGE EDLES: Well, we can certainly take a look 8 at that.
9 JUDGE WILBER: Let me ask you a little bit.
10 You're stressing the RG-58 and RG-59 comparison. Is the RG-11 11 coaxial and triaxial, that's acceptable, is that 12 correct, in your eyes?
O 13 MS. CURRAN: I wouldn't want to tell you whether 14 it's acceptable or not. I'm not an engineer.
15 JUDGE WILBER: But you're not pursuing that.
16 MS. CURRAN: I didn't pursue it because at least 17 there was some attempt to make a technical comparison 18 between the two components. In the case of RG-58 I saw 19 there was none at all, and that was why I pursued that.
20 JUDGE WILBER: So the appeal of the entire 21 contention centers on RG-58 and RG-59; is that correct?
22 MS. CURRAN: That's right.
23 JUDGE EDLES: Ms. Curran, if we were to find in 24 your favor on the environmental qualification issue, would 25 that require us to hold up the low-power license issued by ACE. FEDERAL REPORTERS, INC.
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8340 01 01 17 V'Orysimons 1 the Licensing Board? I appreciate if we find in your favor 2 we would presumably return _that matter to the Licensing 3 Board for its further disposition.
4 :Would that, in your judgment, require us to 5 issue a stay against issuance of a low-power license? Can 6 you tie that.in to the need for low power or the safety 7 implications.of low power?
8 MS. CURRAN: At this point I don't believe so.
9 We did evaluate these issues when we opposed the low-power 10 license, and we looked at whether there was some safety 11 implication for low power, and at that point we concluded 12 that there was none.
13 Now at that point we also hadn't maybe analyzed 14 it that far in depth, and I would have to consult with my 15 expert to see if he thought there was some safety 16 implication, but I doubt it.
17 JUDGE EDLES: Okay.
I 18 MS. CURRAN: The NRC Staff makes an argument to 19 the effect that nobody is perfect, and that one cannot 20 press the applicants.for complete and exact compliance with 21 the environmental qualification rules, and for this 22 principle they rely on a number of quality assurance cases 23 in which the Appeal Board I think in most cases refused to 24 reopen the record or affirm the denial of contentions based O 25 on quality assurance, that the contentions they felt didn't ACE FEDERAL REPORTERS, }NC.
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. Vf3rysimons 1 raise significant safety issues even though there might 2 have been some imperfections.
3 For one thing, I think this is a serious safe'ty 4 issue. He are talking about 60,000 feet or 11 miles of 5 safety cable that serves safety. equipment throughout this 6 plant, both inside and outside containment, and I don't 7 think it can be characterized as a minor problem.
8 For another, I think whatever the Commission's 9 policy may.be with respect to quality assurance, it's quite 10 clear that there are very, very strict standards for 11 environmental qualification and this can be seen from the 12 whole history of the environmental qualification O 13 litigation, the development of the rule and recent 14 Commission issuances.
15 Environmental qualification is considered to be 16 a cornerstone of nuclear reactor regulation, and the reason 17 is that if one small component is not qualified it may 18 bring down a whole system.
19 The NRC's rules not only require that each piece 20 of safety equipment be demonstrably qualified, but that 21 that qualification be documented throughout the life of the 22 plant in the licensee's files so that it could be audited 23 at any time and determined to be qualified.
24 The NRC has also issued generic letter No. 85-15 25 dated August 6th, 1985 which is in the record as NECNP ACE FEDERAL REPORTERS, INC.
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8340 01'01 19 rysimons 1 Exhibit 10 which states that equipment that cannot be 2 documented as qualified by the licensee is simply )
I 3 considered to be unqualified.
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4 The Licensing Board has no authority to waive j l
5 these strict regulations. Under the circumstances there j i
6 was no basis for the Board's finding that this partir.ular j l
7 piece of equipment was qualified or that there was a basis 8 for the issuance of a license in this case. i 9 NECNP's second dispute with a partial initial 10 decision concerns whether the Licensing Board was correct i
11- in relying on the NRC 's preaudit general review and it's I 12 audit for its finding that the applicants' ' equipment O 13 qualification program was adequate to meet the regulations.
14 The enormous number of deficiencies identified 15 in the staff's general preaudit review and the higher 16 failure rate of the audit was in fact compelling evidence 17 that applicants' equipment qualification program was not 18 completo or adequate. f 19 The NRC review took place in two stages.
20 JUDGE EDLES: Ms. Curran, what would you have us 21- do at this stage with respect to that aspect of your 22 argument? l 23 MS. CURRAN: I would have you rule that there is l 24 not; sufficient basis in this record to find that ;
O 25 applicants' equipment qualification program is adequate and ACE. FEDERAL REPORTERS, INC.
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8340 Ol'01 20 rysimons-1 that it adequately demonstrates equipment is qualified to 2 survive the duration of an accident.
3 JUDGE EDLES: Let me ask again the same question i
4 I asked in connection with the earlier contention, and that 5 is if we were to find in your client's favor on this issue, 6 is this a matter that would be significant for low power 7 operations or even if we were to remand, could we 8 nonetheless allow the low-power license to remain in 9 effect?
10 MS. CURRAN: I hesitate to say conclusively. I 11 , think this is a serious problem. It's a pervasive problem 12 throughout the equipment qualification program, and I i
13 simply can't tell you here whether our technical experts 14 would say that this has an impact on low-power operation.
/
15 JUDGE EDLES: Okay.
16 MS. CURRAN: But I would be glad to try to 17 answer it for you.
18 JUDGE EDLES: Well, if we need to, we may come ;
19 back to you with some post-argument requests.
20 MS. CURRAN: Okay.
21 The first step of the NRC's review consisted of 22 a review by its contractor, EG&G of Idaho National i l
23 Engineering Laboratories of the final safety analysis 24 report, correspondence and summary information on the skew O 25 sheets they're called which I've given you a copy of from I
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8340 01 01 21 rysimons 1 Exhibit 4. The skew sheet is the table with a lot.of boxes 2 in it.
3 I just thought I would give you a copy of that 4 so you could see what one looks like. It basically lists 5 the qualification parameters and all the descriptive 6 information about a component and states whether that piece n 7 of equipment meets the standards.
8 JUDGE WILBER: And who performed this, or who 9 prepared this sheet?
10 MS. CURRAN: The applicants prepared the skew
.11 sheets, and this was reviewed by the NRC. contractor. All 12 the safety components and all 112 equipment qualification O 13 files were reviewed in the sense that -- the summary 14 information was review and not the files themselves.
15 JUDGE EDLES: And there was then a selection 16 made from among the files?
17 MS. CURRAN: That's right.
18 JUDGE WILBER: In this instance would this have 19 been prepared by the gentleman that was a witness?
20 MS. CURRAN: I think you would have to ask Mr.
21 Dignan that.
22 JUDGE EDLES: Mr. Dignan, do you have an answer?
23 MR. DIGNAN: I'm sorry, I missed the question.
24 JUDGE WILBER: The question is we had talked O 25 earlier about this applicants' witness that had testified ACE FEDERAL REPORTERS, INC.
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f- rysimon's 1- on_the qualification of the RG-58 cable, and I wondered if r
l 2 this sheet had been prepared by him or under him?
l l 3 MR. DIGNAN: I cannot say who would have l
l 4 personally prepared it. I would have to have somebody I
5 decipher the signatures. My guess is it was not prepared l-.
6 by that particular one.
l' 7 The witness that we put on was an overall expert l 8 in charge of the effort. Whether he prepared this l 9 particular one as part of the job he was doing, I just L 10 can't say. I can ask somebody to try to decipher 11 signatures for me if that would be of assistance to the ;
l i
12 Board.
l '
13 JUDGE WILBER:
I see. Fine.
14 MS. CURRAN: The EG&G report, a memorandum from 15 EG&G to the NRC Staff dated February 21st, '86 is included )
16 as Exhibit 13 in the record- l l
17 In it's review EG&G found over 100 deficiencies !
18 in the qualification program and over 50 of those consisted j 19 of missing skew sheets. In other words, they didn't even 20 have the summary information that they could have reviewed.
21 Their conclusion was that although this didn't i
22 necessarily -- excuse me.
I 23 JUDGE WILBER: Mr. Dignan. I 24 MR. DIGNAN: Your Honor, I'm advised of a second O 25 signature. The " checked by" is Mr. Woodward's signature ACE FEDERAL REPORTERS, INC.
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()rysimons1 who testified for us. He did not prepare it. He did check 2 it because he was in overall charge of it and that's his k l
3 signature indicating that he signed off on it.
L 4 JUDGE WILBER: All right. Thank you.
5 MS. CURRAN: The conclusion of the report was 6 although this didn't mean the equipment was qualified, that 7 there should be a further case-by-case evaluation of this 8 prog ram.
9 JUDGE EDLES: Who would do that further 10 evaluation, the Staff?
11 MS. CURRAN: It didn't say who would do it.
12 JUDGE'EDLES: Who in the normal course of events O 13 now would do it?
14 MS. CURRAN: I don't know.
15 JUDGE EDLES: But your point I take it is that i 16 the staff's activities in looking at this prematurely and 17 then not doing a thorough job as you portray it is the 18 problem. Is that basically right?
19 MS. CURRAN: Yes.
20 JUDGE EDLES: And therefore should we simply 21 have the staff take a second look at all of this?
22 MS. CURRAN: I really think that that's up to 23 the Appeal Board. Our position is we are not suggesting l 24 any particular remedy. Our position is that the way this O 25 was done was not adequate to support a finding that the ACE FEDERAL REPORTERS, INC.
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_arysimons 1 equipment was qualified.
~2 JUDGE WILBER: You don't Know if there has been 3 a-follow-up audit?
4 MS. CURRAN: No, I don't. I haven't seen any.
5 Certainly no one testified to a follow-up audit at the 6 hearings, and I'm not aware of any further audit.
7 The staff held a meeting with the applicants 8 around the time of the report and the applicants agreed to 9 correct the problems with their EQ program. Then shortly.
10 afterwards the NRC took the second step which was to 11 conduct an audit or 12 files that they had chosen partially 12 at Random and some of the files were chosen to check and O 13 see whether the applicants had cured the defects. Six out 14 of the 12 files failed the audit. Two of the files ---
15 JUDGE EDLES: Did they fail the audit, or were 16 they just further deficiencies of the audit?
17 MS. CURRAN: Well, they were deficiencies.
18 JUDGE EDLES: Is there a criterion that you must 19 pass or fail kind of like in college?
20 MS. CURRAN: Well, I would say that under the 21 rule you get a pass / fail. Either documentation is 22 documented in your file or it isn't, and you either pass or 23 fail under the rule. There is no middle ground. With four 24 of the files the problem was that there was not adequate O 25 information. It was information that applicants had in ACE-FEDERAL REPORTERS, INC.
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( rysimons 1 their possession but hadn't put in a file.
2 JUDGE EDLES: But in due course am I correct the 3 staff has now signed off and said that everything is okay 4 or soon will be?
5 MS. CURRAN: Yes. Two of the other components 6 had more serious problems. One of them had two different
? ID numbers on it and another had to be replaced because it 8 had some unqualified components.
9 JUDGE WILBER: Was that corrected? Did they i
10 backtrack or did they replace the components or did they l 11 . straighten the record out? ;
12 MS. CURRAN: I believe they did for those 12, or O 13 for those six that everything was fixed. I i
14 The Board found that the problems with the audit f l
15 were not that significant and that it didn't show there was {
16 some problem with the EQ program.
l 17 But I think taking this whole thing into the )
i 18 entire context of the review that it does show a problem. I i
1 19 In the general review there were many, many problems and 20 there was quickly an audit done that still showed that the 21 applicants had not completed their equipment qualification 22 program or had errors in it.
23 Given this pretty serious level of 24 incompleteness and noncompliance that the audit didn't
() 25 confirm that the equipment qualification program was j
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rysimons 1 complete, but it confirmed that something that had been i
'2 shown to be incomplete was still incomplete and that there j
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3 was no basis on this record to find that the equipment J l
4 qualification program was adequate.
5 I would'like, if I may, to move on to the 5 rejected contentions.
7 Contention IB concerns a steam generator' tube 8 inspection. The contention asserts basically that 9 compliance with Reg. Guide 1.83, Revision 1 is not adequate 10 to detect and prevent accidents from occurring in the steam 11 generator tubes.
12 JUDGE EDLES: Let me see if I can summarize very O 13 quickly the gist of your contention.
14 You say that the facility employs the reg. guide 15 as the basis for its surveillance program, tha steam 16 generator.
17 By the way, at Ginna they also used the same 18 reg. guide as the basis for their surveillance program.
19 There was a problem at Ginna and, ergo, the reg. guide 20 doesn't seem to provide reasonable assurance that the steam 21 generator tubes are going to be properly looked after. Is 22 that the thrust of it?
23 MS. CURRAN: That summarizes our contention.
24 JUDGE EDLES: Okay. Fair enough. !
O 25 MS. CURRAN: The Licensing Board first said that ACE FEDERAL REPORTERS, INC.
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( .trysimons 1 we couldn't challenge.a reg. guide, and when we responded 2 to that ---
3 JUDGE EDLES: They were wrong on 'that, and then 4 they changed the basis of their decision.
5 MS. CURRAN: Right. They said it's 6 presumptive. Well, the definition of a presumption is that 7 you can overcome it, and we certainly gave a reasonable 8 basis for questioning whether Reg. Guide 1.83 was adequate 9 to protect against these accidents.
10 By the way, this problem seems to have been 11 borne out recently at North Anna.
12 JUDGE EDLES: Does the North Anna plant use the O 13 same reg. guide as its surveillance document?
14 MS. CURRAN: I haven't been able to find that 15 out, but I do know they claim that they had inspected the 16 tubes at that plant within the last couple of months before 17 the accident.
18 JUDGE EDLES: Could I ask you to turn your 19 attention, unless Judge Wilber has another question ---
20 JUDGE WILBER: No, I don't.
21 JUDGE EDLES: --- to turn your attention to the 22 contention dealing with the important to safety and safety 23 related matters, if you would, please.
24 MS, CURRAN: Okay. These are Contentions 2Al O 25 and 2B2, which is tack of scope of applicants' quality ACE-FEDERAL REPORTERS, INC.
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! pJ rysimons 1 assurance program for construction and operation as not 2 including all components that are important to safety. The 3 contention is based on a statement made in the Commission's 4 i
4 regulatory agenda of January 31st, 1982 clarifying its 5 intent with respect to the scope of the quality assurance 6 programs that in fact apparently no on had understood what 7 its true intent was in that the regulations were intended 8 to cover more components than the industry had predously 9 understood.
10 JUDGE EDLES: But why would that bear on the 11 contention that related to construction quality assurance 12 which was done yeat3 ago? I mean it may well be that the O 13 Commission is now sort of reformulating its view, b.it why 14 isn't what's over and done with over and done with?
15 MS. CURRAN: Well, it's never over and done with 16 in the sense that if the Commission is saying this 17 implicates the safety of the plant, if this is a 18 significant new safety issue that the plant has been built 19 with a misunderstanding of what was the proper scope of the l 20 OA program.
21 JUDGE EDLES: But the thrust of your concern is 22 that items which were not considered safety related way 1
23 back when should have been considered safety related.
24 MS. CURRAN: That's right.
25 JUDGE EDLES: And you were a participant in the ACE FEDERAL REPORTERS, INC.
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(- 1 construction permit procedure, or your client was.
2 MS. CURRAN: That's right. .!
1 3 JUDGE EDLES: Why didn't your client at that 4 stage, quite apart from what the Commission was thinking, l I
5 simply say there are 4, 5, 6, 8, 12 items that ought to be 1
6 safety related and they ought to be included? Why didn' t l 7 you do it then?
8 I mean isn't that a fair point that apart from j 9o the fact that I appreciated this sort of transition in 10 thinking, but you were not really foreclosed in the 3 11 construction permit proceeding from having argued that i
12 discreet ea.uipment should have been deemed safety related 13 and therefore subject to f ull quality assurance protection? !
14 MS. CURRAN: I don't think it was our 15 responsibility to secondguess an issue like that, you know, 16 what was the Commission's original intent and what was 17 misunderstood.
18 I don't think that interveners are responsible 19 tor going to that extent. The Commission has obviously 20 found it necessary to explain to the whole world that this 21 really was not well understood previously. If they had to 22 come out and say it, it obviously wasn't clear to anybody 23 be fore .
24 JUDGE EDLES: See if you can explain to me 25 precisely the thrust of your contention. As I read it, ACE FEDERAL REPORTERS, INC.
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G rysimons 1 what you are saying is there is a category of equipment and l
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i 2 structures and components that are safety related, and l 3 those are subject to full quality assurance controls. Then 4 there is cort of everything else of which some portion are
.I 5 considered important to safety.
6 Is the thrust of your argument that all of these 7 important to safety components and elements should be 8 subject to the full panoply of safety related type quality 9 assurance? Is that the gist of it?
10 MS. CURRAN: Well, apparently that is not the 11 Commiesion's current standard, but I think the requirements 12 for important to safety equipment are stricter than for O 13 equipment that has no safety classification at all.
14 JUDGE EDLES: But you ticked off four or five 15 examples which you were very careful tu ,ay were simply 16 illustrations. So do I glean from that the fact that it's 17 not only these five that you want, but the real thrust of 18 your argument is that all equipment important to safety 19 should now be subject.to full _ quality assurance 20 procedures. Is that the gist of your argument?
21 MS. CURRAN: That's right, and we were only able 22 to give these examples because those are the only ones that 23 the Commission was able to give at that point. We assume 24 that we would be able to ---
O 25 JUDGE EDLES: You might have thought of others ACE-FEDERAL REPORTERS, INC.
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~h (drysimons1 if somebody else thought of others.
2 MS. CURRAN: Well, after we had had an 3 opportunity for discovery we would come up with evidence to 4 support our contention. The basis for a contention is 5 supposed to give you a reason, a way of understanding what 6 is the thrust of this contention and I think that is what 7 those examples did.
8 JUDGE EDLES: But the contention as I understand 9 it is not simply that reactor coolant motors ought to be 10 subject to quality assurance. It is that matters important 11 to safety should be subject to quality assurance, and by 12 the way the coolant pump motors and the in-core O 13 implementation are, by the way, a couple of illustrations 14 and we would have even more if you gave us a chance to 15 discovery; is that right?
16 MS. CURRAN: Right. I think important to safety 17 equipment is subject to the CA rules and it's just a 18 question of what you consider important to safety. The 19 Commission as saying we have defined this too narrowly and 20 we need to be more expansive about the definition.
21 JUDGE EDLES: But didn't the Commission also say 22 that you have to of fer some reason for why individual 23 components are important to safety, and did you do that at 24 least for the ones that you -- you certainly didn't do that U 25 as to the ones that you suggested later on you might ACE-FEDERAL REPORTERS, INC.
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G rysimons 1 include. Did you do that as to the five or six that you 2 think might be useful illustrations?
3 MS. CURRAN: We thought it was reason enough 4 that the Commission may as in the cases say, the Commission 5 may on a case-by-case basis determine that other equipment 6 is necessary to be under a OA program, but in this 7 particular case they seem to say as a generic matter these 8 are exanples of equipment that were improperly left out.
9 JUDGE EDLES: But if I recollect the record 10 correctly, the applicant sort of made you an offer and he 11 said all right, we'll take these five and we'll litigate 12 these if these are the only five you want, and your answer O 13 was no, that's not the basic pitch.
14 MS. CURRAN: Right, because that's not how the .
15 rules of the Commission work. It's our understanding that 16 we are required to give a reasonable basis and not to in 17 the contention specify overy single component that we 18 intend to litigate.
19 JUDGE CDLES: Okay.
20 MS. CURRAN: I would just like to address one 21 other argument that is made by the applicants which is that 22 for purposes of Contention 2B2 which addresses OA for 23 operations we had the wrong table and that we gave the 24 wrong examples. And I just want to point out the O 25 applicants didn't object to this contention when it was ACE FEDERAL REPORTERS, INC.
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rysimons 1 filed, and the first time we became away of this so called 2 problem was on this appeal.
3 I have taken a look at this other table that 4 applicants claim is the right table, and it still to my I
5 understanding doesn't include all the equipment. But I do 6 think this objection was waived it wasn't made at the 7 contention stage.
8 I would just like to quickly address the 9l contention on the cooling system maintenance and 10 surveillance, and I know I don't have much time left.
11 J U DG ': EDLES: Well, we'll give you an extra 12 minute or two since Mr. Dignan we allowed to take up 90 lll 13 seconds or so of your time.
14 Go ahead.
15 MS. CURRAN: Okay. The contention asserts that 16 the applicants munt have a sufficient maintenance and 17 inspection program to prevent the fouling of the Seabrook 18 cooling systems by marine organisms such as mollusks, tube 19 worms and barnacles.
20 It's based on a May 1980 notice of abnormal 21 occurrences at six nuclear reactors around the country 22 where the previous maintenance and inspection programs 23 failed to show these problems up and they had serious 24 problems with the cooling systems.
lll 25 JUDGE EDLES: What about the applicants' ACE FEDERAL REPORTERS, INC.
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_( rysimons 1 argument, as I understand it, that that Commission notice 2 really only related to situations where the cooling water 3 involved the ultimate heat sink?
4 MS. CURRAN: Well, I think that is kind of a red 5 herring because the problem is if something is fouling your 6 cooling system and if there are clams blocking the heat 7 exchangers, it doesn't. really matter if you've got another l
8 source of water. The water is not going to go through the 9 heat exchangers anyway. So the fact that there is a 10 cooling tower there really is irrelevant to this 11 contention.
12 What is relevant is that the safety equipment O 13 t'ee t rea or 'be e co tt"9 '"""ete ==v 'e 't ked
14 these organisms. The argument that this was litigated at 15 the construction permit phase again is misplaced.
16 First of all, we are talking about the blockage 17 of these cooling systems. The construction permit case 18 dealt with whether or not there was an earthquake and these
{
19 cooling tunnels collapsed there might be another source of 20 water for the heat exchangers. Again, that's a different 21 issue.
22 JUDGE WILBER Are you concerned only with the 23 salt water organisms? As I read your brief you appeared to 24 be concentrating only on the salt water.
l 25 MS. CURRAN: I think by necessity we would be.
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m rysimons 1 And then, finally,.it's irrelevant that the i V l_ 2 seawater won't contact the primary cooling system. If the 1
3 secondary system can't take heat away from the primary 4 cooling system, you've still got an accident.
- l. 5 I think my time is up.
l 6 JUDGE EDLES: Okay. Thank you very much.
l 7 Mr. Backus, you've got 25 minutes, which will l 8 you five minutes then for rebuttal.
9 ORAL ARGUMENT OF ROBERT A. BACKUS 10 ON BEHALF OF 11 THE SLACOAST ANTI-POLLUTION LEAnUE 12 MR. BACKUS: Judge Edles and Judge Wilber, first 13 of all, I would like to welcome you gentlemen to New 14 Hampshire. It's usually about this time when high 15 officials from Washington come up here running for 16 President.
17 JUDGE EDLES: I can assure you that neither of 18 us have expectations in that area.
19 MR. BACKUS: I was going to say I don't think 20 the filing period has expired. So if you want to consider 21 that.
22 (Laughter.)
23 JUDGE EDLES: Although given the scenery and the 24 weather, it might be nice to campaign at least in New 25 Hampshire.
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l MR. BACKUS: Well, I was going to suggest that I L (")7rysimons
%. 1 2 think probably the best thing you could do in New 3 Hampshire, far better than listening to me and the other 4 attorneys, would be to take a trip to the Hampton Beach.
5 It's an excellent beach day, and if you can't make it I 6 today, I hope you can make it tomorrow and I think you 7 would find it a very enjoyable experience and we would be j l
8 glad to assist in any way that would contribute to the 9 benefit of that visit if you care to make one.
1 10 JUDGE EDLES: Mr. Backus, we have made that 11 trip.
12 MR. BACKUS: Have you made it in the summertime
() 13 on a hot summer day?
14 JUDGE EDLES: Yes, we have.
15 MR. BACKUS: Okay. I'm glad to hear that.
16 It's very good to have you here, particularly 17 because I think this is the first time the Appeal Board has 18 come to New Hampshire in regard to any of the hearings we 19 have had in Seabrook. The Commission itself has been here 20 for a hearing and the Licensing Board up to the present 21 time has had all evidentiary hearings in the State of New 22 Hampshire. Unfortunately, they now propose that future 23 hearings will be held in Boston.
24 I have three issues that I intend to discuss
() 25 with you today, gentlemen, the issue of the treatment of ACE FEDERAL REPORTERS, INC.
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("q,rysimons 1 the Class 9 accident, the catastrophic accidents and the
(_)
2 final environmental statement of the Licensing Board's 3 disposition of the safety parameter display system issue 4 .and the Licensing Board's refusal to reopen the record on ,
5 the issue of the siren test and the legality of the sirens 6 in the New Hampshire portion of the EPZ.
7 JUDGE EDLES: Mr. Backus, what would be very 8 helpful to us, as you are aware, although you were unable 9 to respond to it because of the timing of our stay 10 decision, is we have addressed, at least in part, all of 11 those issues. And while our addressing them in connection 12 with the stay request does not of course foreclose you from
() 13 relitigating those issues on the merits here, I would be 14 most interested in pointing us out to where we have made a 15 mistake in our analysis or what additional information we 16 should have looked at and why the basic thrust of our stay 17 decisions on those three issues was wrong.
18 MR. BACKUS: I certainly intend to do that.
19 On the Class 9 issue, I think that the thrust of 20 what the Board did in dealing with the stay motion was 21 simply to say well, we've looked at the FES and we find 22 that there is some discussion of accident consequences in 23 there.
24 I would submit that the final environmental 25 statement that we have in this case does not in any way
,(])
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2 which I understand was intended to implement the CEO 3 guidelines, for really telling the world that's supposed to 4 be finding information in FES what it wants to know.
5 JUDGE EDLES: But what precisely is not in there t
6 because I've gone through it. What is not in there that 4 7 you think ought to be in there? I mean I saw some charts j 8 and graphs which, you know, showed that if you can't get 9 people out within the first 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> that we are going to 10 have thousands of bodies laying around. Now what more is 11 it that you expect them to say in an environmental 12 assessment. .
() 13 MR. BACKUS: Well, it doesn't say that in any 14 very clear way. In fact, I must agree with something that 15 is in the Staff's brief. They say that we disagree with 16 the presentation of the material. Indeed, we do. The 17 Commission said it wanted approximately equal attention to 18 probability and consequences.
19 All we get in the FES is a number of charts with 20 probabilities on curve and ---
21 JUDGE EDLES: And consequences on the other.
22 MR. BACKUS: --- and consequences on the other.
I 23 We get to the conclusion, the concluding part of this 24 discussion and it's right back to the old proposed annex to 25 Appendix D which the Commission used from 1979 to 1980.
(])
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/~7rysimons 1 The conclusion is these impacts of a severe U accident could be severe, but the likelihood of their 2
3 occurrence is judged to be small. That takes us right back 4 to nothing than we had with the proposed annex to Appendix l 5 D.
l 6 JUDGE EDLES: But, Mr. Backus, let's assume'that i 7 you were writing the FES. I mean how would you do it?
8 Tell me how other than saying low probability accident on 9 the one hand and disastrous consequences if it happens on 10 the other. What else would you have them put in there?
11 MR. BACKUS: I would tell the public what the 12 consequences of a worst case accident could look like. j
() 13 That in what I think is missing here. The Staff has 14 agreed, and I think there is no dispute, that nowhere in 15 this FES is the consequences of a single accident laid out 16 in any kind of detail.
17 We've got a lot of numbers, we've got curves, 18 but nowhere does this do what an FES is supposed to do and 19 tell the people how bad could it be if things go wrong.
20 JUDGE EDLES: Am I correct that at some point 21 one of the charts, and I think I may have misplaced the 22 chart, but my recollection is there may have been a number 23 that said in the case of a worst case sort of accident 24 you're going to have 10,000 people killed. Am I right on
{} 25 this?
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MR. BACKUS: There is one table with some l j f~]7rysimons
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i 2 figures on it. l l
[ 3 JUDGE EDLES: Now that sounds to me like they 1
4 have laid it out.
5- MR. BACKUS: No, they haven't. There is one 6 other thing that is very important that is missing in 7 here. The analysis in here all assumed -- well the 8 analysis in here specifically excluded initiating external j 9 events as the cause of the accident. !
10 JUDGE EDLES: Okay. Well, let's not turn to 11 that for the moment. Let's stick now with your argument 12 that they do not portray property the consequences of the
() 13 accident. When I see an environmental statement that tells 14 me that in a worse case accident you're going to have 15 10,000 bodies laying around, I mean that sounds to me 16 fairly dramatic. Newspaper get that kind of stuff and put 17 it out there and that is kind of potent stuff.
18 What more are they supposed to do here in terms 19 of consequences now?
20 MR. BACKUS: In terms of consequences, I think 21 they should lay that out, lay out the environmental cost of 22 the accident and lay out the latent effects. I don't think 23 that that has been done here. Then they get to the end and 24 they say the uncertainty bounds are here between a factor of 10 and 100 and they don't lay out what those uncertainty
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1 2 oso they have not demonstrated in any meaningful 3 way what the worst consequences of a catastrophic accident 4 could be, and I think that that's the critical failing in l 5 this environmental policy statement. ;
6 JUDGE EDLES: The uncertainty bounds are i 7 directed to the consequences portion?
8 MR. BACKUS: I think they were directed to all 9 of it, the probabilistic as well as the consequences.
10 JUDGE EDLES: The total risk.
11 MR. BACKUS: Total risk. So that simply has not 12 been done, and I submit that this statement simply does not 13 help make a reasoned choice between alternatives. The
(])
14 Licensing Board said that they didn't need to do any of 15 this because the description of a worst case accident's 16 consequences was not essential to a reasoned choice between 17 alternatives.
18 I think that is precisely what is essential to a 19 choice between alternatives. That's what people want to 20 ) know when a decision is made to build a very large nuclear l
21 plant like Seabrook and how will it be if it goes wrong.
22 I submit this does not tell us that for the 23 reasons I've stated ar.d for the additional reason I was 24 going to get to, Judge Edles, which is that the entire
(} 25 analysis assumes of course an evacuation.
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8340 01 01 42 g r- Now I'm aware that they have'got an appendix la i
()].rysimons 1 2 here where they talk I think in one sentence if there is no i
3 evacuation for 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />, but the basic description ---
4 JUDGE WILBER: I believe the results are l
5 reflected in the curve as well. l L 6 MR. BACKUS: There is one table in the appendix-l 7 also with a different curve, but the description of the so-8 called four accident scenarios displayed in here all do 9 assume an evacuation.
10 And then they go on and they say they don't need 11 to consider external events as initiating the accident.
12 Well, external events such as seismic events, and a seismic 13 event is a good example because it could initiate the
({)
14 accident and it could certainly impair the ability to carry 15 out emergency measures, including evacuation, and would 16 very much contribute to a disaster of greater magnitude 17 than one can find out from looking at this document.
18 JUDGE EDLES: You're talking about, for example, i
19 a simultaneous earthquake and some other event that causes j l
20 the plant to go awry, both things occurring at the same l 21 time.
22 MR. BACKUS: Yes.
23 JUDGE EDLES: Is that exactly the thing that the 24 D. C. Circuit said was so improbable that you don't have to I
() 25 look at it? I thought that was what the Diablo Canvon case I i
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8340 01 01 43 rysimons 1 was all about, and the court, as I recall, did not overturn 2 that aspect of the case, which said that that's just so j I 3 improbable that that is not something that the agency has !
l l l 4 to look at.
1 5 MR. BACKUS: Well, the point is ---
6 JUDGE EDLES: It seems to me if that's true, 1 l
7 then I'm stuck with that. I mean that's a three-judge l
8 Court of Appeals and I'm kind of stuck with their analysis 9 of that.
10 MR. BACKUS: I'm sure that is so. All I'm 11 saying is that by refusing to look at external events on 12 the judgment that they would not have any different
()
13 consequence characteristics than internally initiated l
14 events, I just think that flies in the face of common 15 sense.
16 JUDGE EDLES: But tell me why it does that. I 17 guess I don't understand. When I read that, you know, my 18 sort of visceral reactio1 was the same as yours. Then I 19 thought about it some more and it seemed to me that it did 20 make common sense. Explain to me why you don't think it 21 does, to say, look, if there is some catastrophic accident 22 within the plant, we know the consequences of that 23 accident. And by the way, if somebody happens to throw 24 sand in the gears and produces the same kind of accident,
{} 25 the consequences are going to be the same. Why does it ACE FEDERAL REPORTERS, INC.
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, g rysimons 1 really matter how the accident occurs?
.(G 2 MR. BACKUS: Well, my understanding of the so-3 called probabilistic safety assessment, which was formerly 4 called the probabilistic risk assessment, is that the 5 largest contributor to an accident scenario, and in the 6 case Seabrook it's station blackout, that that is a very 7 major cause of the probabilities of accidents, however low 8 they may be.
9 Station blackout could well be initiated by some 10 external event, and would have a serious effect I suspect 11 on the ability of a State or the municipalities to carry l
12 out emergency measures.
l 13 JUDGE EDLES: But does it matter whether it 14 occurs through sabotage or whether, I don't know, an 15 electrical storm or something causes a station blackout?
! 16 Why would that make a lot of difference as to how it 17 happens, the reason for it?
18 MR. BACKUS: All I can say is that it seems to 19 me that an internally initiated event may not have the same 20 consequences on the ability of offsite authorities to carry l 21 out their responsibilities as an externally initiated event l
l 22 might have.
23 So I think that the assumption made in the l
l 24 discussion here with the modest exception of one table in l
25 Appendix F, that the evacuation is effective to reduce the i l
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,- consequences of an accident which is used throughout the 40 V}rysimons 1 2 pages or so of discussion of worst case accidents is not 3 well founded, and therefore the decision to just dismiss 4 externally caused events is arbitrary.
5 JUDGE EDLES: Okay. I'm not sure that I'm 6 persuaded by that, frankly, because I really don't see'in 7 terms of the things that you're talking about the response 8 capability of the local emergency planning folks and all 9 that, whether a station blackout occurs through somebody 10 cutting the wires or some other God induced sort of event.
11 MR. BACKUS: Well, there could be a lot more 12 wires down if it's a seismic event or some other natural 13 phenomenon that's outside the plant than rather merely a
()))
14 station blackout within the plant. That's the issue that 15 is not addressed in here.
16 JUDGE EDLES: Okay.
17 MR. BACKUS: And there is no doubt that they did 18 rule that out. At page 548 of the FES it says "A sequence 19 initiated by natural phenomena, such as tornadoes, floods 20 and seismic events and those that could be initiated by 21 deliberate acts of sabotage are not included in these event 22 sequences."
23 I'm now going to turn to the issue of the safety 24 parameter display system.
(} 25 JUDGE EDLES: Could I just ask one quick ACE FEDERAL REPORTERS, INC.
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8340 01 01 46 L g 7rysimons.1 question before you do that, and the Staff I believe in its V
2 brief mentions that you are arguing on appeal a couple of 3 matters that you did not argue below. Could you address i
4 their argument in that respect? I guess it's on page 6 in l 5 Footnote 9 of their brief. It says "SAPL argues on appeal 6 that the environmental statement did not contain 7 appropriate uncertainty ranges."
8 Then it says "SAPL contended below that the FES 9 failed to identify any uncertainty. Similarly on appeal 10 SAPL challenges the assumptions used in the FES, but before 11 the Board it questioned only the assumptions involving 12 emergency evacuation and siting."
13 MR. BACKUS: Well, I think that's a nice
(]}
14 quibble. The thrust of our contention was whether or not 15 the final environmental statement meets the requirements of 16 the interim policy statement and ultimately it's going to 17 be whether the whole thing meets the requirements of the 18 National Environmental Policy Act and the CEO regulations t
19 on dealing with uncertainties.
20 I think in the fact that we raised the issue of 21 the uncertainties should be sufficient to have this Board 22 adjudicate that issue. It's true we may have rephrased it 23 a little bit different in our brief than we did initially, 24 but there is no doubt that we were claiming here that the
(} 25 FES did not meet the requirements of the Act. So I think ace. FEDERAL REPORTERS, INC.
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8340 01 01 47 y-tr that is a nice quibble.
(') ysimons 1 2 On the issue of the safety parameter display 3 syste m, the requirements for a safety parameter display 4 ~ system, as this Board is well aware, have been in existence 5 since 1972, were to have been put into a binding legal
. 6 requ !.reme nt , are stated to be necessary for prompt 7 implementation to make an important contribution to safety 8 and described as primary importance.
9 It seems to us simply astounding that here we 10 are in 1987, four years later, and we have a Seabrook 11 Station which is supposed to be a modern, up-to-date plant, 12 and it does not have a fully functional safety parameter 13 display system.
(])
14 JUDGE EDLES: Is your point then, Mr. Backus, 15 that we quite simply should not authorize any plant that 16 does not have a fully operational SPDS; is that your point?
17 MR. BACKUS: That would be my point. Now I 18 understand that the Commission and the Boards have always 19 had a tougher time dealing with existing plants and 20 existing licenses than with plants coming on line, and I 21 can't defend the logic of that.
22 But you well know the number of extensions that 23 wel:e granted on emergency planning requirements for a 24 nu:nber of operating plants and things keep getting l
(} 25 extended.
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8340 01 01 48 rysimons 1 I don't think the fact that the Commission may 2 not have treated existing plants consistently is any 3 defense to saying a new plant which does not have a license 4 should go on line without what has been described as 5 important safety equipment being available four years after 6 the requirement was established.
7 JUDGE WILBER: But where does it call for this 8 to all be done at some precise time?
9 MR. BACKUS: Well, of course, as you are aware, 10 Judge Wilber, there is no set time. It said there was to 11 be prompt implementation.
12 JUDGE WILBER: But you're arguing there should 13 be; is this correct?
(}
14 MR. BACKUS: Pardon?
15 JUDGE WILBER: You are arguing that there should 16 be?
17 MR. BACKUS: 1 am arguing that it should be done 18 before this plant goes to criticality, and that's for sure.
19 JUDGE WILBER: Which is some unique time.
20 MR. BACKUS: Yes. It's a very unique time and l
l 21 it's a very important time, and I would point out that the 1
22 exhibits we've produced in this case included letters I
l 23 between the staff and the applicants setting up two dates l
L 24 prior to fuel leading, both of which have passed and there l
25 have been extensions.
({}
l l
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8340~01 01 49 {
r 1r 1 Now let me get to the heart of what I think is
() ysimons 2 the real problem with the SPDS issue and your prior j I
3 treatment of it. The real heart of it is that first the 4 staff, which arguably may have discretion to weigh these 5 requirements, arguably, but then the Licensing Board also 4
I 6 indulged in what I think is an arbitrary exercise of its j 7 authority to say you can take these and put them off until 8 we get to five percent, and these three, including 9 corttainme nt isolation and the improvement of the data 10 validation, you can put those off until the first 11 refueling.
12 JUDGE EDLES: Okay, but they offered reasons for
() 13 that.
14 MR. BACKUS: The reason they offered, Judge 15 Edles, and there was only one reason offered for each one 16 of those three things, and the reason came down to it's on 17 the main control board, the containment isolation, they 18 said.
19 JUDGE EDLES: Well, but my recollection is that-20 with the load conditions they said that the plant had to be 21 operating at better than five percent power before they 22 could actually do all the runn on that. Is that roughly 23 accurate?
24 MR. BACKUS: Yes.
() 25 JUDGE EDLES: I mean they said it wasn't really ace FEDERAL REPORTERS, INC.
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8340 01 01 50 fr7rysimons 1 doable ---
b 2 MR. BACKUS: No, no, no.
3 JUDGE EDLES: ---
under the circumstance that 4 you were offering where nothing was running.
5 MR. BACKUS: That is not entirely accurate.
6 What they sai; is the plant had to be running at some power 7 level in order to do the loading on a computer to see if 8 the response times were adequate with heavy' computer 9 loading.
10 I don't see why there can't be a simulation to 11 test that. I.mean certainly there has got to be an ability 12 to simulate heavy computer loading to see what the response q{]) 13 times will be. I just don't understand that, but I agree 14 they did say that, that there needed to be some level of 15 plant operation. Now why that is, I don't know.
16 The containment isolation and the improvement'of 17' the validation of the data to be displayed, they simply 18 said all of that can be handled because it's on the main 19 control board. Well, everything on the SPDS is on the main 20 control board. So I think that becomes a purely arbitrary 21 decision on their part to say that these three parameters
[ 22 we can say don't present any risk to safety because they l
l 23 are on the main control board. If you use that logic, you 24 can say the whole SPDS can be ignored because everything is
{} 25 on the main control board.
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l 8340 01 01 51 rysimons 1 JUDGE WILBER: They did go beyond that at least 2 for the containment isolation. They said that there is a 3 specific matrix that is easily visible from the SPDS area.
j 4 They just didn't say it's on the main control board. They 5 said it was on the main control board in a certain pattern 6 and at a certain place.
7 MR. BACKUS: Twenty-six feet away. That's what 8 they said. But I agree, yes, they described it and they 9 said it was there. And I say again if they can do that for 10 these items, why couldn't they say the same thing for 11 everything else on the SPDS?
12 Or look at it this way. I don't understand why 13 you make them do it by the first refueling. Suppose the 14 applicants, and they are a little hard up for money right 15 now as you may have heard, suppose they say we don't want 16 to do that? What is to prevent anybody from saying, well, 17 second refueling or third refueling? Never.
18 I mean if the safety parameter display system is 19- supposed to be an important safety function and is supposed 20 to enhance operator training with such a device, how was it l
21 these things can be put off until the first refueling? l I
22 JUDGE EDLES: We can certainly prevent going to j 23 the second refueling by imposing a license condition that i
24 they have to do it by the first refueling. Now the !
25 Commission may well take of f if it goes up on appeal, but I
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l 8340 01 01 52 if we insist that it be done by the first refueling, that
- (r?rysimons1
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I 2 is a license condition and I have no reason to believe that 3 the staff wouldn't enforce that condition if it were 4 imposed and upheld by the Commission.
5 MR. BACKUS: Yes, but where is the reason for 6 it? How is it not arbitrary and capricious to do that?
7 JUDGE EDLES: I'm addressing only your 8 suggestion that well, if we make it the first, then later 9 someone will change it to the second and then they'll 10 change it to the third, and I think we can protect against 11 that. Now that doesn't get to your question that it may be 12 arbitrary to do it after, and I understand that.
(} 13 MR. BACKUS: Right. In any event, that is my 14 basic response to what you've said about the SPDS. I say 15 again, it seems to me that if the SPDS requirements are a 16 matter for staff discretion, that's one thing.
17 The Licensing Board didn't treat them that way.
18 How does the Licensing Board or indeed this Appeal Board 19 have discretion to secondguess the staff if it's a 20 discretionary matter? If it's not a discretionary matter, I
21 then why isn't there a requirement that these things be 22 done before nuclear operation?
23 JUDGE EDLES: Well, perhaps the answer is that l 24 the Licensing Board exceeded its authority even in pushing 25 up the one or two or three of these. Maybe the answer is
[}
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8340 01 01 53 l f grysimons 1 yes, they all rest in the staff's discretion and we ought y/ .
. 2 to take out that condition as well.
l 3 MR. BACKUS: Maybe that's.right, but there was 4 no cross appeal on that.
l l 5 JUDGE WILBER: Isn't that true that everything 5 the Licensing Board did was a more restrictive requirement 7 than the staff had concluded?
l 8 MR. BACKUS: Yes, it certainly is, and I would l
9 just say a(ain that if it's a question of not accepting the l 10 staff's judgment on this, then what is the Licensing Board l
l 11 acting on, and on what basis are they choosing at what time 12 to complete the SPDS?
{} 13 JUDGE EDLES: Let me ask you a little bit about 14 your ergument that the project manager had to be 15 subpoenaed, and I guess I don't follow that argument quite 16 honestly. If your position is, as I gather it is, that 17 everything has to be done before we authorize any 18 licensing, what is the project manager going to be telling 19 us? Is it irrelevant what he tells us?
20 MR. BACKUS: We were put on the horns of a 21 dilemma by the Licensing Board's treatment of this issue.
22 We said that the issue was an arbitrary and capricious 23 basically for the applicant and the staff not to have 24 agreed to an implementation schedule sometime in the four-(} 25 years between the time the regalation came out and the time l ACE. FEDERAL REPORTERS, INC.
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8340 01 01 54 nirysimons 1 they were going to actually get a license for fuel loading.
_O There were schedules put out that were not met, 2
3 the project manager was there in the hearing room, the 4 regulation, 0737 says the schedule, which is to be promptly i 5 implemented, is to be worked out between the manager, the 6 project manager and the applicant. He was there, it hadn't 7 been done, and it seems to me perfectly obvious that we 8 should have been entitled to call them if the issue was why 9 hasn't this schedule been met.
10 JUDGE EDLES: But that isn't the issue.
11 MR. BACKUS: No.
i 12 JUDGE EDLES: The issue as you phase it is this
! (~$ 13 schedule was invalid at the outset.
1 \-)
I 14 MR. BACKUS: Well, the schedule was not invalid 15 at the outset, because if the original schedule had been l
l 16 met it would have been a fully compliant SPDS before we got 17 into ---
18 JUDGE EDLES: But as it evolved, the scheduled i 19 turned out to be impermissible at the outset if your 20 position.
21 MR. BACKUS: That's correct. Now what the 1
1 22 Licensing Board did was to change the entire issue, and I l
l 23 frankly think they put the burden of proof on us. They l
L 24 said all right, the schedule that was proposed hasn't been l l
(} 25 met and the staff now says that three of these things at 1
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v}rysimons1 least can be put off to the first refueling outage, but you 2 can't ask the project manager about that because we say now 3 the issue isn't why that schedule wasn't met, that's not 4 the issue. The issue now is does the deferral of those 5 things pose a risk to the public health and safety. i 6 JUDGE EDLES: What would you have asked the 7 project manager? Wouldn't you have asked the project 8 manager does the deferral of those things pose a health and 9 safety threat to the public? Isn't that exactly the 10 question that.you would have asked the project manager?
11 MR. BACKUS: No. I think the question to the 12 project manager would have been why has this agency through
() 13 its staff not insisted upon a plant being in full 14 compliance with this TMI requirement after four years of 15 delay when the schedule was put in?
16 JUDGE EDLES: Let's assume that at the outset j 17 when this all got started the project manager would have 18 sat down and agreed with the applicant to put in precisely a'
19 the same schedule that the Licensing Board has decided 20 upon, that they did it four years ago as part of an j 21 agreement. What happens then? What would have happened l
l 22 .then?
l 23 MR. BACKUS: That the project manager would have I
l 24 agreed to delay the --- l
(} 25 } JUDGE EDLES: 3y the way, coincidentally, he l
l 1
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l-8340 01 01 56 j rysimons 1 would have agreed four years ago to precisely the schedule l 2 that is now going to be in place under the Licensing
'3 Board's ruling. He is given the discretion to do that and 4 he has set up the cchedule and what would have happened 5 then?
1 6 MR. BACKUS: .Our argument would have been that l 7 the requirement of 0737 for prompt-implementation has not 8 been met. That would have been our argument, and that is 9 also our argument here at this time.
I l 10 I next turn to the issue of the sirens in the 1
l 11 Town of East Kingston.
12 As the Board is aware, we have two bases for our
() 13 attempt to have a hearing on the issue of the sirens in 14 East Kingston.
15 The first is of course they had a test of those 16 sirens which I believe was the first test of the siren 17 system on January 31et and the sirens failed to. perform up 18 to their design requirements.
1 19 The second is that shortly before that test 20 there had been a decision of the Superior Court here in New 21 Hampshire holding that those sirens in two other towns had 22 been erected without proper legal authority and the towns 23 would have the authority to take them down and that 24 decision is under appeal.
25 JUDGE EDLES: And has been stayed by the
{}
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'8340 01 01 57 rysimons 1 Appellate Court?
2 MR. BACKUS: It has not been stayed.- It has 3 been treated as if the taking of an appeal effected a' stay, 4 but there has been no separate stay order.
5 JUDGE EDLES: Is that under State court rules?
6 MR. BACKUS: Pardon me?
7 JUDGE EDLES: Is that under State court rules 8 that an appeal of a trial judge's decision automatically 9 stays the decision?
10 MR. BACKUS: No.
11 JUDGE EDLES: Why was that stayed, and why-is 12 there in effect a stay?
13 MR. BACKUS: I'm not actually sure there is a
(])
14 stay. I think that the towns in question have decided not 15 to act on that decision until the decision of the highest 16 ' court in the State, the New Hampshire Supreme Court. So 17 when I speak of a stay I may not be exactly accurate.
18 JUDGE EDLES: So for the moment the issue is not 19 a live.one and won't be until the State's highest court 2C upholds, if it does, the trial judge?
21 MR. BACKUS: Yes. Although it's a live one in 22 this sense, Judge Edles. It seems to me that the i
23 Commission should require a presumption of legality of the
- 24. operating alerting system instead of assuming that the l
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8340 01 01 58 rysimons 1 on a further appeal. As of 'right now there is a decicion-2 that those sirens are not legally in place, and I'm not 3 quite sure on what basis the Commission would decide to 4 rely on the outcome of an appeal when there is an existing 5 decision that says these things are not legally 6 established.
7 JUDGE EDLES: Well, let's assume the sirens had 8 all tested out fine and you had a State court judge saying 9' you couldn't put them up and that was now on appeal. In 10 those circumstances why couldn't the Commission go ahead 11 and say well,.look, as far as we know the sirens are okay 12 now?
l 13 By the way, if the State court ultimately tells 14 you you have to-take the sirens down, then that's it, then 15 the applicant has a real problem on his hands because he 16 has got, I don't know, to go' with a certiorari to the 17 Supreme Court or whatever you do to get the legislator to 18 re-enact the la a or something. But at that point then 19 you're stuck. I mean why should we sort of just treat that 20 as not critical to our determination here?
- 21 MR. BACKUS: Well, I think it's a matter of l
22 comity between the State and Federal legal authority 23 frankly. I understand what you're saying. The sirens are 1.
24 still up in those two towns and they apparently will not 1
25 come down until the appeal has been decided which is l
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1 C7rysimons1 2 JUDGE EDLES: But more important is they will 3 come down if.the State court says they have to come down ;
4 ultimately. ;
1 '
5 MR. BACKUS: They will come down.
6 JUDGE EDLES: And then the applicant has a l
7 problem. He has got to figure out some other way to notify I 8 the public.
l 9 MR. BACKUS: Right. ,
10 JUDGE EDLES: At which point all things come'to 11 a halt.
12 MR. BACKUS: Right. On the issue of the. test
() f13 and the way that the Licensing Board in its March 23rd 14 order denied us a hearing on that, they made us go through 15 the extensive procedural hoops one has to go through to 16 demonstrate a right to reopen a hearing, although the 17 record had been closed in this case but no decision had 18 been issued on the issue of a low-power license, as you 19 know.
20 And what they did was to seize on two of the 21 requirements for reopening the record. The second one, 22 does the reopening address a significant safety issue and, 23 third, would a different result be likely if this l 24 information had been in.
1
{} 25 Now I submit that the idea, that the issue of
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8340 01 01 60 the operability of the sirens, which was cast in doubt by-f^)trysimons
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1 2 the results of the January 31st test has to be treated as a 3 significant safety issue.
4 This Board in one of our prior appeals asked us 5 to particularly address the Commission's statement of 6 considerations in adopting its final emergency planning 7 rule back on July 13th, 1982, issue 6 where the Commission 8 was considering what became 50.47(d) permitting no approval 9 of emergency plans, as you know. And I don't know who 10 brought that up, but it certainly makes it clear to me 11 looking at that description of issue No. 6 that the 12 existence of an effective system to alert the public prior 13 to any nuclear operation was considered an important
(]}
14 factor.
15 Issue 6, "The public knowledge that no offsite 16 protection exists could chaos in the event of an incident 17 during fuel loading or low power testing,'
18 Commission response, "See Section 50.74(b)(6).
19 " Provisions exist for prompt communication among principal 1 1
20 response organizations to emergency personnel and to the 21 public." '
22 So I think the Commission has answered the issue 23 of whether or not the existence of an operating, working i
24 and effective alerting system is important for the issuance
(} 25 of a low-power license. I don't think the Board should i
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8340 01 01 61 rysimons I have ignored that.
2 JUDGE WILBER: Are the sirens the only alerting 3 system available, do you know?
4 MR. BACKUS: There are I think some tone alert 5 radios for the hearing impaired, and I guess they plan on 6 using an emergency broadcast system through broadcast ---
7 JUDGE WILBER: So that would be notification ---
8 MR. BACKUS: I'm sorry?
9 JUDGE WILBER: That would be notification and 10 not necessarily alerting, wouldn't it?
11 MR. BACKUS: Right.
12 JUDGE WILBER: I'm talking about just alerting.
I believe the sirens are it.
() 13 MR. BACKUS:
14 JUDGE WILBER: They don't have route alerting.
15 Well, a tone alert radio would secomplish that.
16 MR. BACKUS: Yes. I don't believe there have 17 been tone alert raotos, except for special facilities and 18 there are supposed to be some I guess with lights for j 19 hearing impaired people.
20 JUDGE WILBER: And on the failure of the test, l
21 wacn't it part of the record that the test was improperly 22 conducted?
23 MR. BACKUS: Well, they said they didn' t like 24 the test procedure. But, you know, I wish I could have
() 25 done that in college, if you didn' t like the results of a ACE FEDERAL REPORTERS, INC.
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2 guess. l 3 JUDGE EDLES: No, that's not correct.
4 JUDGE WILBER: Well, if the siren doesn't go 5 full circle, I don't know how the people at the back end of 6 the siren might or might not hear it, and that I understood 7 one one of the failings of the test procedure, that it 8 never allowed the sirens to go full circle.
9 MR. BACKUS: Well, my understanding of what they 10 did as a result of these tests is that the applicants and 11 the staff agree that the results were not adequate and they 12 recommend some fixes which in their opinion will fix the
[]) 13 problem, to reorient the sirens so that they face southeast 14 and northeast.
15 JUDGE WILBER: But you didn' t challenge that, 16 you didn't say that was bad.
17 MR. BACKUS: Well, what is our burden here?
18 That's the question. We are an intervenor group, and this 19 puts the burden on us. What the Licensing Board said was 20 to my way of thinking astonishing. They said, SAPL's i 21 affiant, the newspaper reporter who was there and saw the 22 failure, tells us factually what occurred during the test, 23 but ha does not tell us nor does he have the expertise to 24 so advise as that the problems encountered are
(~)
V 25 insurmountable und incapable of solution."
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'0340 01 01 63 p rysimons 1 I don't see anywhere that the Commission can d 2 properly put the burden on us to get the record reopened to 3 show that the solution talked about in their affidavits is 4 incapable or insurmountable.
5 The fact is we have put forward facts which are 6 admitted that the sirens had f ailed the test in this one 7 town, and we suggest that raises concerns about the entire 8 alerting system. We get affidavits saying gee, they're 9 right but we think we've got the solution and we will have 10 it fixed, and we don't get a hearing on that because wo 11 haven't shown that the solution is impossible.
t 12 JUDGE EDLES: Imat do you recommend that we do?
13 Shall we simply order that the sirens be retested and have 14 your experts sit there and watch the test and get some 15 objective -- these are objective criteria. I mean there 16 are decibel sounds or whatever. This isn't like an essay 17 test where every teacher looks at it and they have a 18 dif ferent perspective.
19 I mean it seems to me if we were, for example, 20 to order a retest that somebody ought to be able to sound 21 there with a sound meter and figure out if the sirens are 22 putting out ample decibels; isn't that right?
k 23 MR. BACKUS: I think that before you approve the 24 partial initial decision that you should require that there
. 25 be a demonstration that the alerting system will meet the ACE-FEDERAL REPORTERS, INC, j 202-347 3700 Nationwide coverage 8(n33uu6
8340 01 01 64 rysimons 1 design objectives of the Commission's regulations.
2 JUDGE EDLES: Let me ask you the question that I 3 had asked Ms. Curran before. As.to the items that you are 4 raising with us this morning, I appreciate that all of them 5 have to be raised at this time under the Commission's 6 rules, and they are properly raised, but what is the effect 7 of these issues on the low power operation, and I'm not 8 talking about the legalities now or the legalisms 9 ' associated, but what are the safety implications to the 10 public, for example, if the SPDS during low power 11 operations isn't fully operational or if the sirens don't 12 work and we give people six months to correct this? What 13 are the safety implications at low power?
14 MR. BACKUS: Judge Edles, with all respect, I 15 don't think that's a question you could ask me. This is a 16 legal proceeding. You say putting aside the legalities, 17 that's what we are here for.
18 JUDGE EDLES: Mr. Backus, I understand the 19 legalities, but I want you to give me the practical help 20 that I need to decide the case, and I would appreciate it l
l 21 if you could answer the question for me.
22 MR. BACKUS: Well, I will do my best. All I can i 23 take is what the Commission itself said in promulgating the 24 requirements for an SPDS, and an SPDS as I understand it l
25 stands for a safety parameter display system which they l
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i 2 Take those things, and it seems to me like it's t 3 a very important part of the plan, and I don't any reason 4 why this Commission or this Board should allow that plant 5 to go on line four years after that requirement was 6 established without that being fully operational, tested 7 and validated.
8 JUDGE EDLES: Mr. Backus, with all due respect, 9 that is not responsive to my question.
10 MR. BACKUS: Let me try again, or perhaps I can 11 ask you to ask the question again.
12 JUDGE EDLES: Let me ask the question again. I
(} 13 understand your argument, and you may indeed well prevail 14 on the argument that the SPDS has to be in place before we 15 authorize the issuance of any license. I'm not disputing 16 that for the present.
17 What I am asking you is that let's assume that 18 the SPDS is not fully operational and that we decide that 19 some adjustments have to be made to that. Why couldn't we 20 nonetheless allow the low-power license to remain in effect 21 during such time as this matter is brought up to speed?
l 22 MR. BACKUS: I guess all I could say to that is 23 that my understanding of the Commission's regulations are 24 that you get one license, which in fact they've got, a 40-
{} 25 year operating license they' ve got, and that in order to ACE FEDERAL RFPORTERS. INC.
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( 7r get that license you have to have compliance with the
' \-] ysimons 1 2 Commission's regulations, with one exception, that you 3 don't have to have approved emergency plans to go up to 4 five percent.
5 But I find nothing in the Commission's 6 regulations that would say if you find that there is a 7 requirement, whether it's in a regulation or an 0737 8 requirement that's not met, that this Board has the 9 discretion not to refuse a license. I would say the staff 10 may have discretion in many areas, but when we are at the 11 level of the adjudicatory boards of this Commission, I 12 don't think it's a discretionary matter to pick and choose.
(} 1L JUDGE EDLES: Okay. And you're not going to 14 help me in case I happen to disagree with anyone else, 15 you're not going to help me in terms of what the safety 16 implications -- I mean there could conceivably be a rule 17 that someone has that every car coming off the assembly 18 line has to have blue paint. And some car some off and has 19 red paint Now we may say all right, you know, we'll let 20 it go and we'll let it go out there but, by the way, within 21 30 days you've got to get it painted blue, and there aren't 22 any safety implications to any of that. That's what I'm 23 kind of asking.
24 MR. BACKUS: Well, I think that all these things
(} 25 we're talking about clearly are something more than the ACE-FEDERAL REPORTERS, INC.
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2 nuclear plant and, you know, the alerting system --- !
3 -JUDGE EDLES: Plainly they would have more 4 implication I assume for full-power operation than they 5 would for low power where systems'are operating at a much 6 lesser degree and the response times in case of emergencies 7 are likely to be greater and things like that.
8 MR. BACKUS: I assume that's true, and all I 9 could say is the Commission has made one distinction for 10 eme rgency planning . It certainly has not made a 11 distinction for the public alerting system as reflected in 12 this consideration six, issue six, and I think with the 13 language used in 0737 that'it certainly has not made any
(])
14 distinction about the SPDS being compliant before or after 15 five percent power. There is nothing in 0737 that suggests 16 implementation would be deferred depending on the power 17 level you were planning to be at at a particular time.
18 JUDGE EDLES: Okay. I understand your position.
19 MR. BACKUS: Thank you.
20 JUDGE EDLES: Mr. Bronstein.
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4 MR. BRONSTEIN: Good morning.
5 JUDGE EDLES: Good morning.
6 MR. BRONSTEIN: I would like to concentrate in 7 the time available to me on our siren contention, and 8 specifically on our appeal from the Licensing Board's 9 denial of our motion to reconsider a late-filed contention 10 with a revised basis and to reopen the record.
11 JUDGE EDLES: I would ask you, Mr. Bronstein, as 12 I did with Mr. Backus, to concentrate on those aspects of
., 13 .our stay decision with which you disagree or where we 14 haven't laid out the information properly.
15 MR. BRONSTEIN: I appreciate that, Mr. Edles, 16 and in fact that is why I'm concentrating on this issue 17 because at the argument on the stay we touched on it only 18 briefly and ALAB 865 really does no more than reiterate the 19 Licensing Board's decision and say that it appears proper. ,
20 JUDGE EDLES: Okay, and I'm not so proud as not 21 to be willing to change my mind if you convince me of it.
22 MR. BRONSTEIN: I appreciate that.
23 The late-filed contention which we sought to 24 have admitted alleged t violation of regulations requiring 25 that there be administrative or physical means to provide ACE-FEDER AL REPORTERS, INC.
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o-8340 01 Ol' 69 v 7rysimons 1 varly notification and clear instruction to the populace of O 2 Merrimac, Massachusetts, and specifically the revised basis 3 t o that contention asserted the failure of the Merrimac 4 sil' ens to satisfy either of the alternative NRC/ FEMA 5 criteria for sirens.
6 First, that the sound level coverage throughout 7 the area be at least 60 DBC and, secondly, in the 8 alternative, that the sound pressure levels exceed the 9 average measured summer daytime ambient sound levels by 10 10 decibels.
11 Everyone acknowledges in this proceeding that 12 the first criteria has not been satisfied'in certain areas
() 13 of Merrimac. ,
14 As to the second criterion, we discovered for 15 the first time in January of 1987 that the applicant was 16 relying on the second criterion to satisfy the NRC/ FEMA 17 criteria, and we discovered as a result of a response which 18 the applicant filed to an earlier version of this 19 contention that the applicant's experts in doing 20 measurements of the sirens had taken measurements in the 21 incorrect octave band, No. 1.
22 JUDGE EDLES: Now would you define " incorrect" 23 for me.
24 MR. BRONSTEIN: Yes. The applicants' expert had l
() 25 taken a measurement in the 1,000 hertz octave band, whereas l
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p rysimons 1 these sirens, and I believe it's set forth in our material, V
2 I believe the sirens are in the 60 to 80 --- l 3 ' JUDGE EDLES: Sixty to 80 hertz. j 4 MR. BRONSTEIN: That's right, the 60 to 80 hertz 5 band, and-under the NRC/ FEMA criteria the 1,000 band is the 6 improper band, and the applicants have acknowledged this.
7 So this isn't really an issue in the case at this point.
8 We also discovered as a result of that filing 9 that the applicants' consultant had taken those 10 measurements on an extremely unrepresentative day, that is, 11 Martin Luther King Day, E. State and Federal Holiday.
12 JUDGE EDLES: That holiday is celebrated?
13 MR. BRONSTEIN: That holiday is celebrated in 14 Massachusetts and of course it's also a Federal holiday.
15 Yes, please keep in mind Merrimac is in Massachusetts and 16 not in New Hampshire, and New Hampshire does not observe 17 that holiday. So that was an unrepresentative day and I 18 think the applicanto have acknowledged that as well.
19 Therefore, as a result of this submission by the 20 applicants in January we learned for the first time that 21 despite their attempts to rely on the second alternative 22 criterion for the NRC/ FEMA sound levels, that those 23 measurements were done in an im. proper manner, and we 24 speedily contracted with an acoustics experts to go out and 25 do his own measurements and provide us with the results.
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- Those results were done on a more typical day 7
%)}rysimons 1 2 and they were done in the corrective octave band, and as a 3 result of his measurements, we speedily filed our late-4 filed contention with a revised basis. putting aside a 5 basis that we at that point acknowledged had been incorrect 6 in a couple of regards. We filed essentially a new lata-7 filed contention with a completely revised basis.
8 I should say just to complete the procedural 9 background that in response to our filing, the applicants 10 resubmitted a set of tests by its concaltant which were 11 this time performed on a more typical week day and in the 12 correct band. So that we don't challenge at this point the
{} 13 methodology for the resubmitted measurements.
14 The Board rejected our late filed' contention 15 with the revised basis on several grounds, and each was 16 clear error.
17 First, the Board concluded that there was no 18 good cause for the late filing. However, the Board's 19 analysis on this timeliness issue completely related to our 20 first version of this contention which had a completely 21 different basis.
22 Consequently, the Board said that we should have 23 know, for example, that the Town of Merrimac had taken town 24 votes which required that the third siren not be installed, 1
l l
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25 but that was not an issue at this point in the litigation.
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8340 01 01 72 l r 7rysimons 1 The issue was the incorrect measurements that U
2 had been taken by the applicants' consultant,.and in fact l
3 whether that second criterion had been satisfied, and there 4 was no way, there was no information on the record or 5 available to us that could have put us on notice that this 6 was an issue any earlier than the January filin; by the 7 applicants.
8 And, consequently, we did proceed as speedily as 9 possible under the circumstances to file our late-filed 10 contention as soon as that information was brought to our 11 attention by the applicant.
12 So that the Board's anilysis on the timeliness 13 issue, which I think is a very critical foundation for its
(])
14 rejection of the late-filed contention, really didn't 15 address our point. Out point thero was no way we could 16 have known about this earlier than January of 1987.
17 Secondly, the Board concluded that admission of 18 the contention would delay the proceedings and broaden the 19 issues. However, we asserted, and I don't think there has 20 been anything to contravene it, that any delay, which we 21 acknowledge there would be, would be minimal. We are 22 talking here about a very simple issue. It's a factual 23 issue and it's one that we contend could be concluded in a 24 one-day hearing.
/~T 25 JUDGE EDLES: Why do you need a hearing? I mean V
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'1rysimons I why isn't this amenable to some kind of test that someone
'(d 2- would file an affidavit on? I mean isn't this the same as 3 the other sirens? I mean there'are decibel readings. I 4 mean why do you need a hearing?
5 MR. BRONSTEIN: I agree that if a proper set of 6 measurements were taken, a hearing might be completely
. 7 unnecessary. The problem is that the record as it exists 8 at the moment, unless the Board is willing to let us bring 9 up this issue and is willing to acknowledge that the 10 measurements taken by the applicant do not necessarily 11 satisfy the standard, the curr'ent record ---
12 JUDGE WILBER: Which measurements? I'm getting
(} 13 a little confused.
14 MR. BRONSTEIN: Okay. I'm putting aside the 15 first set of measurements which the applicants acknowledge 16 were erroneous.
17 JUDGE WILBER: All right.
18 MR. BRONSTEIN: The second set of measurements 19 relate to one day, and we're talking about a criterion 20 which requires an average. Now there are two issues in 21 terms of the second criterion. One is that it should be an 22 average measured sound level and, secondly, it should ---
23 JUDGE EDLES: What does average mean? Does the 24 average mean geography that you have to pick more than one
{} 25 location? I mean it said on a representative day.
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'8340 01'01 74 rarysimons 1 MR. BRONSTEIN: I would interpret it to mean h 2 that we need a series of measurements.
3 JUDGE EDLES: A series meaning more than one 4 day? -
5 MR. BRONSTEIN: More than one day.
6 JUDGE EDLES: Then why does it say on a 7 representative day? Doesn't it say on a representative 8 summer day?
9 MR. BRONSTEIN: I don't believe that there is 10 anything that specifies one particular day. I think in 11 general the measurements are to be taken on representative 12 days. What we have here, however, are two sets of
(} 13 me asureme nts. We have the applicants' measurements and we 14 have the measurements that were submitted by us, and those 15 measurements conflict in some respect. Under the 16 measurements that we provided, there is no satisfaction of 17 that criteria.
18 JUDGE EDLES: Let me see if I cut through this.
19 The regulations require that you do the tests in one of two 20 ways. Your folks did it one way and it failed. The 21 applicant did it another way and it passed.
22 MR. BRONSTEIN: You're referring to the octave 23 bands.
24 JUDGE EDLES: The octave bands.
{} 25 MR. BRONSTEIN: The one-third octave band.
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("7rysimons 1 JUDGE EDLES: The one-third octave band, and V
2 fargetting for the moment the representative day business.
3 MR. BRONSTEIN: Right.
4 JUDGE EDLES: In the octave band they used what, 5 the one-third octave and you used the full octave.
6 MR. BRONSTEIN: They used the one-third and we 7 u sed the f ull.
8 JUDGE EDLES: Yours demonstrated the sirens 9 flunked, and theirs demonstrated that the sirens passed.
10 The applicants' argument as I understand it, is that the 11 FEMA requirements say simply that you use one of those and 12 there is no requirement that you've got to meet both. And
() 13 that being so, they've met the one and what more do you 14 want?
15 MR. BRONSTEIN: I think the argument on its face l 16 is absurd, which is to say that there could be a failure 17 364 days of the year to have adequate siren coverage, but 18 be:ause they may have taken measurements on one particular 19 da:( and the sirens ---
L 20 JUDGE EDLES: But you may have taken 21 measurements on one particular day and been wrong.
22 MR. BRONSTEIN: Exactly, and we're --- j 1
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l 23 JUDGE EDLES: Why should we rely on it?
l 24 MR. BRONSTEIN: --- we're not claiming that as a !
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"$rysimons 1 absolutely necessarily deficient. Our point is this was a l
) 2 factual issue that required further exploration at a 3 hearing where the different methodologies could be i
4 approached and analyzed and perhaps further measurements.
5 JUDGE WILBER: Are you saying the one-third f
6 octave is not an acceptable measurement?
7 MR. BRONSTEIN: No. We are acknowledging that 8 that's an acceptable measurement as well.
9 JUDGE WILBER: That is an acceptable 10 measurement, 11 MR. BRONSTEIN: Either one is acceptable, either 12 the one-third or the full octave, and theirs was the one-
{} 13 third ar.d ours was the full octave.
14 However, what we have are conflicting results, 15 and to determine, as the ' Board did, simply to accept one 16 set if measurements and reject another set and say that i 17 therefore this criteria has been satisfied is extremely' 18 result oriented clearly and really denied us a hearing on 19 an important f actual issue that we were entitled to a 20 hearing on.
21 JUDGE EDLES: One of the problems for the Board, 22 it seems to me, is that we are coming to this on the 23 tallend of the case. I mean it may well have been that had 24 you introduced the contention early on, yes, that would
(~) 25 have been enough to get you by the contention situation and kJ ACE FEDERAL REPORTERS, INC.
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l 8340 01 01 77-frir you would have gone ahead and litigated it.
l- Q ) ysimons 1 2 But now the issue is whether we reopen a l
3 completed case, and what the Board it seems to me 4 essentially said was.all right, you've shown that you did 5 some tests in the past, but by the way you've not conceded 6 that the applicant did tests that were okay and did pass, 7 and that being so you haven't really carried the day here.
8 You haven' t shown definitively that you were likely to get 9 a different result.
10 MR. BRONSTEIN:- I think that really harkens back 11 to the timeliness issue, and that's really I think the 12 foundation for what the Boahd did. I agree with you that
(}
- 13 the Board was was very troubled that this came in after the 14 record had been closed.
15 JUDGE EDLES: Right 16 MR. BRONSTEIN: But clearly we couldn't have 17 brought it in earlier. We never attacked the siren design 18 in this case. It was simply a matter of ---
19 JUDGE WILBER: If we granted you good cause, you 20 still come to that fourth item that there would be no 21 different result. j 1
22 MR. BRONSTEIni. That there would be a material 23 different result, and all I can say on that point is that 24 according to our expert set of measurements there would be l
(} 25 a material different result. According to theirs, if you l
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~1rysimons 1 accept that'one-day measurement as answering the standards, 2 it would not..
3 JUDGE WILBER: Is that in the record? .
4 'MR. BRONSTEIN: Is what in the record?
5 JUDGE WILBER: That he.would have taken that 6 exception. 'I don't recall that in his affidavit.
1 7 MR. BRONSTEIN: I'm not sure I followed.the 8 question.
9- JUDGE WILBER: You said that your expert said L10 there would be a material ---
-11 MR.'BRONSTEIN:' Well,.that's certainly our legal 12 argument based. on the actual material supplied by' our 13, expert which showed that'in certain areas of Merrimac that
.{])
14 the background level noise was of a certain level such'that 15 the siren coverage would'not be adequate under the 16 criterion.
17 . Accepting his measurements, as indeed I think 18 the Board had to as a factual matter, then there would be 19 inadequate siren coverage in portions of Merrimac. But the 20 Board instead chose to simply overlook or reject 21 essentially our affidavit and accept' entirely the
.22 applicants'.
23 Now that puts aside the whole other issue, which 24 is that the criterion specified in FEMA REP-10 calls for a 25 summer measurement, and what we were dealing with here were
[}
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8340 01 01 79 r}rysimons 1 measurements taken in March. So that even ---
r_).
2 JUDGE EDLES: Were follow-up measurements, have 3 they been taken in the summertime?
4 MR. BRONSTEIN: I understand that that's a
! 5 question that the Board has for the NRC Staff. I'm not I
6 aware of any measurements that have been taken.
7 JUDGE WILBER: Your expert has not taken any?
8 MR. BRONSTEIN: No, because of course this 9 contention was not admitted and ---
10 JUDGE EDLES: Mr. Reis, what is the answer to 11 that? Have they been done in the summertime?
l 12 MR. REIS: They have not yet been done. A
(} 13 contract is being negotiated, and they will be completed by 14 the end of the summer.
15 MR. BRONSTEIN: I'think that certainly in light 16 of that there shouldn't be any low-power license issued 17 until those measurements are accomplished and we have some 18 answer to this factual question as to whether or not there 19 is adequate siren coverage in the Town of Merrimac.
20 To get to your question, Mr. Edles, which you've 21 been asking both Ms. Curran and Mr. Backus, as to how this l
22 pertains to low-power operation, I can only echo what Mr.
t i 23 Backus said is the Commission's position on early i 24 noti (ication, and that is specifically in the statement of
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he satisfied for low-power operation, and the Commission
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2 has spoken to that point.
l 3 JUDGE EDLES: And you would agree with Mr.
l 4 Backus then that there is a very limited exception to low-5 power problems, and that is for these emergency plans?
l l 6 MR. BRONSTEIN: Correct.
7 JUDGE EDLES: But that anything else, if we find l
8 the Licensing Board erred, we would call a halt to all the 9 proceedings and remand it or come and do it over or 10 something like that?
11 MR. BRONSTEIN: I would agree with that. I 12 would endorse that. However, I think in this instance it's
{} 13 oven a clearer matter, and that is because the Commission 14 -has specifically said that this is an element of the 15 applicants' offsite plans which it will look at before low-16 power operation is to commence.
17 And the reason for that, according to the 18 Commission, and there may well be other reasons, but the 19 Commission has specifically pointed to the need to assure 20 the public that all the proper safety mechanisms are in 21 place in the event of an accident, however unlikely in 22 terms of low-power operation.
23 JUDGE WILBER: On these acoustic measurements, 1
24 where does the final resting place, where does it go? l
{} 25 Isn't it FEMA that has to make these measurements and l
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accept them?
l O 2 MR. BRONSTEIN: It's not specified as to who l
- 3 actually makes them. Now in this instance it was the
.(
l 4- applicants' consultant. Now this. raises another 5 ir.teresting point, and that is the role of the NRC Staff 6 and the Board's statement that this is a matter chat can be 7 left to the NRC Staff oversight.
8 What happened in this case was that the NRC 9 Staff ratner than taking any measurements at all prior to 10 this issue coming up relied entirely on the applicants' I 11 consultant. However, the applicants' consultant candidly 12 stated in their report that they had taken no background
() 13 measurements. . They only stated in a very conclusory way
'. 4 that it was their judgment that if the background 15 measurements were taken that they would satisfy the 16 criteria.
17 The NRC Staff inspector chose to rely on that 18 judgment by the appiicants' consultant which, as I say, 19 acknowledged that there had been no actual measurements l
20 taken. So this is an area which generally I believe is one 21 that the NRC Staff should plan an oversight role in, and I 22 would hope that in any future measurements that they may be 23 planning to do that they are going to be doing them i
24 themselves and not simply relying on the applicants, and I
(} 25 understand Mr. Reis to be saying they will be doing that, li ace FEDERAL REPORTERS, INC.
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a 8340.01 01 82 f~1rysimons 1 e.nd I'm encouraged by that.
U 2 MR. RElS: No. Let me break that down. We will 3 be relying on the applicants as we do generally in l
4 inspections and in everything else. We do an audit, and we 5 will be relying on the applicants, let it be very clear.
6 We are going to look at this and we are going to look at ;
7 the results and look at the reports very seriously.
8 MR. BRONSTEIN: My response to that would ba 9 that I certainly hope that this time the applicants'
(
10 consultants are actually taking measurements and not simply 11 reaching-a conclusion about what the measurements would 12 likely show and, secondly, that this particular consultant 13 seems to have a questionable track record in terrrs of their 14 initial errors in the octave band that was used and also it
. 15 would seem to be rather upparent that the day that they 16 chose to take these measurements initially ---
17 JUDGE HILBER: In this second round of 18 measurements, they actually made measurements; is this 19 correct? .
l 20 MR. BRONSTEIN: Yes, they did make l 1
21 measurements. So what we have here basically in essence 22 was a fact.ual dispute which the Board had no right to 3 l
I 23 determine without a short hearing and a hearing which would l l
24 have caused minimal delay, and I just say which of course l 25 could ha"e been held long ago. It certainly wouldn't at I
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rysimons 1 this point be holding anything up at all.
2 I would like to touch briefly on two other 3 issues which have been covered not only in the brief but in 4 ,
our argument on the stay, but I would like to elaborate 5 just to a small extent. {
l 6 Gne is the need for a supplemental or separate .
I 7 environmental ---
8 JUDGE EDLES: I would like to ask you just one 9 ! question on chat, Mr. Bronstein. You cite a whole slew of 10 NEPA cases in your brief, including Massachusetts against 11 Watt, which I read, but you don't cite Cuomo.
12 Now I guesG (a) j ust f rom a j jurisprudential g 13 point of view, I'm trying to learn something here, why 14 didn't you cite it? Isn't that a such a critical case?
15 MR. BRONSTEIN: Well, first of all, I think it's 16 important, and the applicants and the staff rely hemily on 17 the Cuomo decision, and I certainly understand in light of 18 '. the procedural context in which that arose why they do so, 19 but I think we have to be very clear that the Cucmo 20 decision related to a petition for a stay and there is no 21 ultimate determination in that case on the merits of that 22 decision.
23 There is certainly a great skepticism expressed 24 by the Court of Appeals for the District of Columbia on the g 25 likelihood of prevailing on the merits, but that is not ace-FEDERAL REPORTERS, INC.
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' 1 l 2 JUDGE EDLES: I was just curious, and it may not i i
3 have anything to do with it, but I mean why as a lawyer j 4 don't you respond to a case that is obviously a critical 5 case and which we indeed cited?
6 MR. BRONSTEIN: I think that the brief does go I
7 to great lengths to distinguish the Shoreham case. I can't 8 recall, to be honest with you, all the things specifically !
l 9 that ---
10 JUDGE EDLES: I think that's true. I think 11 that's fair, except that I don't believe it discusses ---
12 MR. BRONSTEIN: I believe there is a reference
() 13 to the case under the context of the non-binding nature of 14 the Shoreham litigation on the decision that is faced by 15 the ---
16 JUDGE EDLES: But didn't the Court of Appeals in 17 Cuomo, whether it was in a State context or otherwise, say 18 that for these kinds of circumstances where there are 19 uncertainties, didn't they essentially buy off on the 20 Commission's view that emergency planning uncertainties 21 were qualitatively no dif ferent than other kinds of 22 .
uncertainties?
'I 23 MR. BRONSTEIN: I think that is a fair summation 24 of what the Court said in Cuomo.
{} 25 JUDGE EDLES: Then why would you need a ACE-FEDERAL REPORTERS, INC.
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8340 01 01 85 7 grysimons 1 supplemental EIS any more than in any other?
O 2 MR. BRONSTEIN: The reason is that this case is 3 qualitatively different from the facts presented at that 4 time in that case It may not be necessarily qualitative 5 in Shoreham today.
6 JUDGE EDLES: Go over that again. I think you 7 and I may have discussed this once before, but go over it 8 again for me.
9 MR. BRONSTEIN: Okay. Essentially what we have .q 10 here is given the current state of f acts of what we know q 11 about the licensing process in the Seabrook case, a 12 situation that is qualitatively different from the set of 13 facts that were existent at the time that it was determined
{~ }
14 that no environmental impact statement was necessary for I
15 Shoreham specifically, and to emphasize some developments l '
16 which have occurred since I last argued this issue before 17 you, FEMA has now stated that the New Hampshire plans as 18 they are currently drafted appeared to them to be 19 inadequate. The haven't stated a final position on this, 20 but th1s is their current position.
21 JUDGE EDLES: Let me ask you about that. When 22 PEMA finds deficiencies in emergency plans, don't they just 23 simply get them fixed up? I mean that to my experience has )
24 never been an absolute bar. They tell the applicant you've ,
l
{} 25 got to change this and you've got to do that and you've got
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8340 01.01 86 g to provide.more people, and so that is not an g
\_)rysimons 1 2 insurmountable barrier.
l 3 MR. BRONSTEIN: And we've been through that I i
4 process, I don't know how many times, and probably Mr.
5 Backus can tell us, with the New Hampshire plans and FEMA 6 to this date, and there have been any number of back and 7 forth exchanges between them as to inadequacies.
8 But what we are talking about here is a very 9 fundamental inadequacy, and that is the lack of any 10 sheltering option in light'of the long evacuation times for 11 the beach population. Now that is a very fundamental issue 12 and one that is ---
(} 13 JUDGE EDLES: What does that mean, that they 14 would have to build shelters if they wanted to get the 15 license or that they might have to shut down the plant in 16 the summertime?
17 MR. BRONSTEIN: It could mean either of those.
18 JUDGE EDLES: But those aren't insurmountable.
19 Those may be unlikely, they may be improbable and they may 20 be a lot of things, but they are not categorically 21 impossible, whatever the language that the Commission used, 22 and we are talking degrees in kind, but not much more than 23 that.
24 MR. BRONSTEIN: That's right, but if I can rely
{} 25 on a quote from this Appeal Board from AU B d65 ---
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8340 01 01 87 r 7rysimons 1 JUDGE EDLES: That's always dangerous.
O 2 (Laughter.)-
3 MR. BRONSTEIN: Well, you characterized -- this 4 Board characterized the Shoreham cases as standing for the 5 proposition that " low power operation should be authorized 6 unless the uncertainties surrounding offsite emergency 7 planning make it relatively clear that full-power operation 8 will never be authorized."
9 And I stand here tonty to say that I think that 10 the state of facts for Seabrook at this point make it 11 relatively clear that full power operation will never be 12 authorized.
(J 13 how Mr. Dignan is going to get up and dispute 14 that and we can argue about that, but it is my position, in 15 light of the FEMA finding and in the light of the f act that 16 there is no Massachusetts plan and tae failure of the 17- utility to file any compensatory plan, the denial of the l
18 request for a waiver of the 10-mile emergency planning zone 19 and the apparent decision now not to renew that request and 20 even the proposal from the Commission for a rule change 1
21 which seems to acknowledge that under the current state of )
i 22 the regulations licensing is extremely unlikely for either l
23 Seabrook or Shoreham. ]
i 24 And I would like to rely on one other thing, and j
\ \
25 that is Shoreham itself. We're talking about a case that {
(}
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8340 01 01 88 n rysimono I was decided two years ago and two years later that plant is U 2 not any significantly closer to operation than it was at 3 that time.
4 JUDGE EDLES: Okay. Do you want to touch in the 5 next 60 seconds on your last point and then we'll call it 6 quits.
7 MR. BRONSTEIN: All right, and that is the 8 failure of the Licensing Board to find a prima facie case l
9' for waiver of Section 50.47(d).
i 10 The only point I want to make on that is that I 11 think there was a prima facie case for waiver on 12 specifically that full-power operation in this case is
( 13 likely, if ever to occur, to occur so much later than the i 14 issuance of a low-power license that the basic purposes of l
15 Section 50.47(d) are not served, and that has been stated 16 to be the testing of equipment, familiarity for plant l
17 personnel to become familiar with the plant operations to 18 detect any problems.
19 The basic fact is that if low-power operation 20 were to occur it would be concluded in about four months 21 and in light of the current situation with Seabrook it l
l 22 would undoubtedly have to replicated at some later date. {
i 23 JUDGE EDLES: But I think we addressed in the 1
24 stay the fact that we felt we were kind of locked in by the 1
l 25 Commission's determination. I mean kind of what you're l
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8340 01 01- 89 73rysimons 1 telling me here is that even if I agree with you that b 2 things don't look all that promising, that the Commission 3 has issued a rule where it says, as it. interprets it, says 4 if the applicant is willing to go forward and spend the 5 bucks, that's good enough for us.
6 I mean aren't we kind of locked into that? .You 7 know, you may want to take that up with the Commission and 8 maybe get them to change their mind, but ---
9 MR. BRONSTEIN: I think that's the point of the 10 waiver provision.
11 JUDGE EDLES: --- but we're kind of stuck, it 12 seems to me with the Commission's pronouncement on that 13 issue, as sympathetic as I may be to your position.
14 MR. BRONSTEIN: I think that's the point of the 15 waiver provision. There is no question that the Commission !
16 as a generic matter has made a determination that low-power 17 operation should precede the issuance of a full power 18 license in terms of emergency planning issues being 19 resolved. That's a generic determination, but it has also j 20 cet up, the Commission has also established a procedure for 21 waiver and for exceptions to be made to that rule.
22 I think that in this instance we have made a l 23 showing that for this particular plant the purposes of that l 24 generic rule are not served by its application.
l l
25 JUDGE EDLES: Okay. Mr. Bronstein, thank you l
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(]rysimons 1 very much.
V 2 We'll take a 10-minute recess.
3 (A recess was taken from 11: 20 a.m. to 11:30 4 a.m.)
5 6
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. ,/'3rysimons 1 JUDGE EDLES: I guess we have everyone.back.
C. 2 Mr. Dignan, you have 60 minutes.
3 ORAL ARGUMENT OF THOMAS G.1 DIGNAN, JR.
4 ON BEHALF OF 5 THE PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, ET AL.
6 MR.-DIGNAN: Members of the Board, I will 7 address the issues in the order that they were addressed 8 orally by the^ other parties to the case.
9 To begin with the issue of environmental 10 qualification of electrical equipment.
11 As Judge Edles pointed out in the colloquy, 12 there is a suggestion in our brief, more than a suggestion,
(} 13 that NECNP really got a free ride' on this issue because 14 their contention did not bring it up. The answer was given 15 .to the Board to a direct question that the applicants had 16 not objected to this.
17 I would remind the Board of the procedural 18 posture in which this came up. The only evidence, direct 19 evidence that was put in in the case was by the staff and 20 the applicants. I think a fair reading of that direct 21 evidence when you review it is that it raised only the l
22 question of qualification times.
23 To be sure, there were tangential references to 24 the program in order to explain certain things because the 25 Board will recall on qualification time you have to pick a
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l 7"3rysimons 1 good qualification time and then if you have certain
\]
n l 2 equipment that does not make that time, you have to 1
3 demonstrate through an engineering analysis why that is not j 4 a problem.
l 5 Now the only way to preserve the objections so 6 called was to object to the cross-examination that took off 7 on the basis of the program. -You will find if you review 8 the records that those objections were made by staff and 9 applicant counsel.
I 10 More to the point, I'm not sure whether the 11 objections made were made or not is relevant because as I l
12 read a recent decision of the Appeal Board in the Comanche
() 13 Peak proceeding, ALAB 868, which was a piece of required 14 reading for me, if not delightful reading , the - Appeal Board 15 made it very clear that an intervenor is bound by the 16 literal terms of the contention and everything else is 17 irrelevant.
18 Now if you review that contention, that 19 contention talked about nothing but duration of time.
20 There is no way to read it as encompassing what we -- I 21 agree, we wound up trying on cross-examination. In any I
s 22 event --- i 23 '
JUDGE EDLES: You say that we will find in the l 24 record your objections and the staff's to the line of cross-1
(} 25 examination that went beyond that contention. )
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8341 02 02 93 MR. DIGNAN: Yes. However, I will readily V}rysimons 1 2 concede that if you hold me to a standard of having 3 objected to every single question, I did not meet that 4 standard. What it was is it was raised, it was overruled, 5 and one thing I've learned a long time ago is there is no 6 sense in antagonizing the trial judge by repeating a 7 loser. But I think you review of that will find that it 8 was f airly preserved in that respect.
9 My point is I'm not so sure you have to preserve 10 it in light of what was just said in ALAB 868, that the i 11 litaral terms of the contention are what are going to 12 control the proceeding.
(} 13 In any event, the concern on the merits is now 14 reduced to a single type of cable. The testimony of the 15 applicants, and I believe any fair-minded reviewer of the 16 applicants' lead witness would say he was indeed an expert 17 in his field. He knew his stuff coldly and thoroughly, and 18 he pointed out that the qualification on the basis of the 19 letter plus in each case there was independent review to 20 satisfy themselves of the letter.
21 JUDGE WILBER: That review was documented? I 22 understood that --- !
l 23 MR. DIGNAN: The review is not document.
24 JUDGE WILBER: And he said it was not needed?
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. 25 MR. DIGNAN: It was not needed and it was not l
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8341 02 02 94 rysimons 1 documented, but he did testify that such a review took 2 place.
I 3 Now my point on the issue ---
4 JUDGE WILBER: Let me pursue this a little bit 5 farther now. He also said I believe that you were 6 committed to IEEE 323 1974?
7 MR. DIGNAN: That is correct. l l
8 JUDGE WILBER: And doesn't that call up the need j l
9 for documentation so a similar expert can review the record 10 and come to the same conclusion?
11 MR. DIGNAN: No, because as I understand it, you 12 may document by the manuf acturer's letter alone if the j
ggg 13 independent review went beyond that.
14 JUDGE WILBER: That's undocumented though.
15 MR. DIGNAN: That's right. My point is the 16 assertion is that all that is around in this record is this 17 letter, and what is in addition is this testimony 18 unchallenged by any fact and unchallenged during cross-19 examination in fact.
20 My point simply is this, as I understand the 21 review of any case, if the applicant puts on an expert 22 witness who in essence testifies across the board this 23 program was good, assuming we are trying this issue at all, 24 at that point there are two ways to break it down, break 25 the witness on cross-examination, which I don't any fair gg ACE FEDERAL REPORTERS, INC.
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l 8341 02 02 95 ar reading of this record can show occurred here, or to offer l
Lf ] ysimons 1 j 2 some affirmative evidence on this cable that the 3 conclusions expressed by that expert are incorrect.
4 JUDGE EDLES: What if we were to find that the l- 5 letter per se just doesn't cut the mustard, that in and of 6 itself-it's too waffley and too wishy washy with too many 7 unknowables in there and too many assumptions. How would 8 we handle that kind of situation?
9 MR. DIGNAN: If you read the letter that way, 10 and I don't think that is a fair reading of the letter, but 11 taking Your Honor's assumption, this Board has the 12 authority of course to overturn a fact finding of the 13 Licensing Board. That is clear in the jurisprudence of the 14 agency, in which case do I at that point admit failure?
15 No, because there was testimony of a qualified person and 16 an independent review had been done.
17 The fact that it was undocumented goes to weight 18 and credibility if you want, but the fact of the matter is 19 the record is absolutely clean on this cable. There is not 20 one suggestion that evnclusions expressed by that witness, 21 by the letter and the witness' testimony on the independent 22 review were in any way in error. There simply is no 23 contrary evidence in this record. And a qualifying expert 24 so testifying I maintain as a matter of law the finding 25 must stand.
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< ,rysimons 1 Certainly it would stand in a Federal court, U 2 although I quite agree the Appeal Board in administrative 3 practice is free to overturn the finding. But even the 4 decisions of this agency make it clear that while Rule 52 5 has never been adopted as such, the Appeal Board will 6 overturn a well-reasoned fact-finding only on a very clear 7 showing before it.
f 8 JUDGE WILBER: Let me ask you some questions 9 about the tables Ms. Curran passed out. I believe the ---
10 MR. DIGNAN: Your Honor, may I take a moment to 11 get them in front of me.
12 (Pause while Counsel Dignan gets copies of the
() 13 documents referred to.)
14 JUDGE WILBER: I believe one at least, if not 15 both of these are part of the exhibits attached to your 16 witness' testimony anyway. So they are part of your record 17 as well.
18 MR. DIGNAN: I believe that is correct, Your j 19 Honor, yes.
20 JUDGE WILBER: I didn' t hear the title for this 21 equipment qualification worksheet. I thought there was 22 some special term appl.ied to that.
23 MR. DIGNAN: This is the skew sheet we are 1
24 looking at, so called.
() 25 JUDGE WILBER: Whatever it is, yes. I look at 1
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L.f-trysimons 1 that and it appears that that applies to all four types of d 2 cables, the RG-11 coaxial, triaxial as well as the RG-58 3 and 59; is that correct?
l 4 MR. DIGNAN: I believe, yes. I don' t want to be l
5 absolutely held to that, Your Honor, because ---
l 6 JUDGE WILBER: It's under equipment description.
7 MR. DIGNAN: The equipment qualification file is 8 .1131901 and I think that file covered them all.
9 JUDGE WILBER: That's exactly right. The 10 question I have on this then is if you go over to the 11 qualification method it says that these were all qualified 12 by test in all but two instances I believe, and I don't
() 13 understand that because I thought there was extensive 14 testimony that there were no tests on RG-58 or on the RG-ll 15 triaxial.
16 MR. DIGNAN: Excuse me, I'm sorry, which ones?
17 JUDGE WILBER: RG-58 and RG-ll triaxial, I 18 believe the testimony was that you did not test those, that 13 you were going to qualify them by similarity or by 20 comparison.
21 MR. DIGNAN: That was my understanding of the 22 testimony also, and again you have me at a disadvantage 23 because I am not sure that the qualification method matches 24 up. I'm trying to come across, aging was tested ---
25 JUDGE WILBER:
Well, for each of the parameters
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8341 02 02 98 l <~ 1rysimons 1 it says by test and analysis, and I look at that and I U 2 assume it applies to all four cables. I don't see how I i 3 could think anything else than that.
4 MR. DIGNAN: I think that's right because as I 5 understand what test means here is test means test of that 6 cable. This parameter was tested, although it is true that 7 with two of the cables the similarity was relied on. It's 8 the parameters that this runs against. Operating time was 9 qualified by test and analysis. Peak temperature was by 10 test. The test was only of two of the cables.
11 JUDGE WILBER: Wasn't that a little misleading?
12 I mean if I were to read that I would see that you had Q
v 13 tested all four of those cables.
14 MR. DIGNAN: Well, my problem, and this is the 15 problem when you pull out of one of these massive records 16 one sheet.
17 JUDGE WILBER: Well, I believe this is from his 18 exhibit, your witness' exhibit.
19 MR. DIGNAN: I understand, but what I don't know 20 is what other documents go with it to explain what the 21 columns mean, Your Honor. That's my difficulty, because 22 this runs against the parameter, and tne witness testified 23 quite clearly that they relied upon a certification of 24 similarity with respect to the others. But it's the 1
25 parameter that we are talking about here and not the j l
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2 That's the best explanation I can give you with
' .! 3 this in my hand and no other documentation. I believe i t's ,
I 9 4 an accurate one, and I would like to leave it with the 5 Board to answer further in writing if I learn I was in 6 error in any way.
7 Turning now to the steam generator tubes ---
i 8 JUDGE WILBER Let's Ttay with the cables a l
9 while. They went into great detail on the two RG-ll's, 10 same dimensions, same material and everything was the same 11 except the triaxial had an extra layer. But when it came 12 to the 58/59 comparison all he said is we feel similar g 13 because of similar construction.
14 Well, if I interpret a coaxial cable correctly, 15 that just means the conductor is in the center and the 16 ground or shield is on the outside.
l J 17 MR. DIGNAN: The maximum side wall is the same. j 18 JUDGE WILBER: No, it isn't.
l 19 MR. DIGNAN: I believe it is, Your Honor.
20 JUDGE WILBER: The insulation on the tested one 21 is about 50 percent thicker and the cable ---
22- MR. DIGNAN: No. I'm talking about the 23 parame ter of maximum side wall.
24 JUDGE WILBER: That's the second item she g 25 brought up.
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/~7rysimons 1 MR. DIGNAN: In other words, here's RG-58, item V 2 No. 7.
j 3 JUDGE WILBER: If I read primary insulation, 4 that's on the second page of item 7.
5 MR. DIGNAN: Yes, I agree that's different, but i
6 take a look at item 20 on the third page. l 1
I 7 JUDGE WILBER: That's the pressure, j i
8 MR. DIGNAN: Maximum side wall pressure, yes, is !
j 9 the s ame .
10 JUDGE WILBER: That doesn't help me very much on 11 a steam profile and that's what these are to be qualified --
12 I think that's pulling cable for pulling around bends --- I
() 13 MR. DIGNAN: Well, let us keep in mind that 58, l 14 and I assume we're agreed was the tested one --- '
15 MR. DIGNAN: No, 59 is the tested one, isn't 16 it? Help me out. 59 is the tested one I believe.
17 MR. DIGNAN: 59 is the tested one.
18 JUDGE WILBER: And it has much thicker 19 insulation by a factor 50 percent. The conductor size is a 20 24 versus 21, which means the cross-sectional area is about 21 one-half of the untested one, and I'm having a little 22 difficulty seeing the similcrity here, 23 MR. DIGNAN: I will confess, Your Honor, and I 24 can share that with you simply because I have not got the
/'T 25 expertise to argue with you technically of f of this O
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i 8341 02 02 101 r3rysimons 1 document.
.U 2 JUDGE WILBER: But as I recall 323 it says that 3 the document should be such'so a person conversant in this 4 area could reach the same conclusions; is this correct?
5 MR. DIGNAN: And all-I can say is a person on 6 the stand conversant in this area reached that same 7 conclusion, it was not challenged, and I have to argue it 8 is a matter of record.
9 If the. Board reacher, the conclusion from the 10 record that the Licensing Board was in error as a matter of 11 fact, there is very little I can do with that if the basis l 12 is going to be on a technical analysis of whether 13 sufficient similarity is here.
({}
14 JUDGE EDLES: I think if it is acceptable to 15 Judge Wilber, we will go back and review the matter after 16 the a rgument, and if we have further questions that we 17 believe need to be answered we'll address them to you in 18 writing.
19 MR. DIGNAN: Fine.
20 Turning to the steam generator tube inspection, 21 this again was a basis question. What was done in the 22 contention is a citation at Ginna ---
23 JUDGE EDLES: Mr. Dignan, let me ask you this.
24 These folks come in here and they say the Ginna folks l
(} 25 complied with the reg. guide. Obviously something went l
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(T r awry, and now maybe even North Anna may have been the same 1
1 G) ysimons 1 l 2 problem. Why isn't that enough of a basis? I don't l
3 understand that. I mean what are these folks supposed to 4 show just to get a contention in, and we're not going to 5 say they are going to win ultimately, but we talking about 6 getting a contention in.
7 MR. DIGNAN: Because there was no showing that 1
i 8 there was similarity between the Ginna situation and us.
l 9 We had a Model F steam generator and that was brought out, 1
! 10 and it was "or specifics as to how ---
11 JUDGE WILBER: Does 1.83 exclude Model F?
l 12 MR. DIGNAN: No. 1.83, what the Licensing Board 13 did when you read that whole thing, they said, look, these 14 people have in and committed to a reg. guide, and they said 15 given that can you give us some specificity as to why that 16 reg. guide is not going to be adequate for these steam 17 generators.
18 The interveners refused to specify further, and 19 the Board on that basis said there was not significant 20 basis. Now that's what really happened down there, and I i
21 think that that is well within the discretion of the Board, i
22 especially again keeping in mind this recent decision, ALAB 23 868, a determination that a contention does or does not 24 have sufficient basis and is reviewable only for abuse of Q
V 25 discretion. !
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(_) ysimons 1 2 when it say we have a commitment to a reg. guide, we have a 3 different steam generator and give us some basis ---
4 JUDGE EDLES: I don't understand why the 5 dif ferent steam generator has anything to do with 6 anything. I mean we are talking about a surveillance 7 program here and not the nature of. the mechanics of the 8 steam generator, unless 1.83 isn' t applicable.
9 MR. DIGNAN: But there was no showing in this 10 contention or anything filed with it that the Ginna problem 11 had resulted from an improper surveillance program. A 12 surveillance program does certain things. There was
() 13 nothing ---
14 JUDGE EDLES: It can also find out in advance if 15 there is going to be some kind of problem.
16 MR. DIGNAN: There are some kinds of problems 17 that a surveillance program can' t find out, and nobody 18 offered anything as to what happened at Ginna and as to why l 19 this should have been caught by Reg. Guide 1.83. There was ;
i 20 nothing of that nature.
I 21 JUDGE EDLES: But aren't we talking then about 22 sort of merits problems as to going beyond and discussing 23 well, maybe you could demonstrate that there was nothing in l 1
24 the surveillance program that was faulty or maybe the
(} 25 intervenor is going to have the greater burden down the l 1
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. \s 2 We're talking about an incredibly low threshold 3 here of raising an issue, and what they've done is they've 4 said you committed to Reg. Guide 1.83 and so did the Ginna 5 folks,_it didn't work at Ginna and we'll try prove 6 something.
7 MR. DIGNAN: Well, that means in essence that if i
8 we have loosened up the basis requirement, and maybe we 9 have, to the state of affairs that says I say there are 10 problems in the nuclear power industry, even though the
'll reg. guides are out there, and therefore I wish to litigate 12 the validity of every single reg. guide. That is a
() 13 perfectly legitimate issue under that analysis.
14 And if we've reached that point that we are 15 going to relitigate every reg. guide on simply a statement 16 that there are problems out in the nuclear industry even 17 though the reg. guides are there ---
18 JUDGE EDLES: The reg. guide isn't anything more 19 than an applicant's means of satisfying the staff on 20 certain things. An intervenor is certainly permitted to ,
l 21 come in and say the reg. guide doesn't work in certain_ ,
s
! 22 circumstances, at which point the burden falls elsewhere to l
l 23 show that it does.
j 24 MR. DIGNAN: In certain circumstances, Your l
i 25 Honor, that's the point, and the certain circumstances were
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('jrysimons I never even alleged or demonstrated. It was simply Ginna is
.V 2 up there and Ginna had 1.83 and Ginna had a problem. That 3 doesn't get you to the problem at Ginna came from the fact 4 that they used 1.83. That just doesn' t get you there .as a 5 basis. To simply say that Ginna had a problem and Ginna -
6 had 1.83 doesn' t get you there.
7 JUDGE EDLES: Didn't Ginna have a problem that 8 was of the type that would have been discovered through 9 proper application of 1.83?
10 MR. DIGNAN: I don't know that. I certainly 11 don't know that, and I say that not being cute that there 12 is nothing in the record. I have never hoard an analysis
() 13 of ---
14 JUDGE EDLES: The problem is you can't 15 demonstrate it wasn't the problem and they can't 16 demonstrate it was, and you're telling me I'm supposed to 17 kick the contention out.
18 MR. DIGNAN: No. I'm telling you that they came 19 up and simply said Ginna had a problem and Ginna had 1.83.
20 A further allegation went on and said Ginna had a problem 21 and the problem turned out to be that the steam generator 22 tubes were oxidizing or somehow of that thing. Oxidation 23 is something that should be caught in the surveillance 24 program and therefore I've got a basis for a contention.
l
(} 25 That's what I'm looking for.
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i 8341 02 02 106 j '7rysimons 1 For all I know or anybody knew down there, we A/m 1
2 have no idea what the Ginna problem was at the time this j i
3 contention was put before the Board, or I didn't anyway, j 4 nobody tried to help us and the Board said just simply 5 alleging that another reactor has had a problem using this 6 reg. guide is not enough basis, and I don't think that is 7 an ab'sive u discretion. An opportunity was given for people 8 to make it more specific and that opportunity was not 9 taken.
10 The OA, starting first with NECNP Contention 2A-11 1, QA' of design and construction. Now to begin with there 12 is one point that I think was being lost sight of as my
() 13 learned friends argue. It is never an issue in an 14 operating license case I submit to the Board whether or not 15 the OA of design and construction of the plant, that 16 program was or was not a good program in the abstract.
17 The OA program for design and construction at 18 the operating license stage becomes a tool, and what it is 19 is if the proper contention is made, which NECNP, and I'll 20 never know why, never made. If you read the record, the l
l 21 Board was suggesting it and they never made it.
22 The contention you make is the plant was not l
l 23 constructed in accordance with the rules and regulations of j 24 the Commission, because the OA program broke down. They l 25 never did that.
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c 8341 02 02 107 (nrysimons 1 What they wante,d to do was relitigate whether or G
2 not the program was any good, and that was an issue that in 3 every case is ~ settled at the construction permit stage.
4 JUDGE EDLES: But turn your attention now to the 5 operational OA portion and address that.
6 MR. DIGNAN: All, righp. Again, as I pointed out 7 in the brief, NECNP when you read through the contention 8 gave us no specific examples at all of what it wanted, and 9 more important ---
10 JUDGE EDLES: No, they gave you five specific 11 examples, which I believe Ms. Curran and I agreed were sort 12 of illustrations.
13 MR. DIGNAN: No. In point of f act they didn' t 14 cite -- as she points out, and she said well, I didn't 15 object to that.part of the contention and therefore I have 16 no right to object up here.
17 What I'm asking the Board to do is if you go, as 18 I pointod out in my brief, to the OA program you find these 19 kinds of things covered. At least when you go through that 20 QA program as it stands in the FSAR, and that's what they 21 didn't cite to, and once you get there you find out the 22 problem is not extant on their own terms.
l 23 But, more importantly, is the other point I 24 made. The contention ca ne in at that juncture on a big l
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8341 02 02 108 related. And in Seabrook, as I pointed out in answers to O(~1rysimons 1 2 interrogatories, we didn't make that distinction.
3 Now it is true that important to safety and 4 safety related items that are in those categories may get 5 different type of OA treatment, but we don't exclude them 6 from the program on that basis.
7 JUDGE EDLES: So all important to safety items 8 at Seabrook get some level of quality assurance attention.
9 MR. DIGNAN: Yes. And as pointed out I think in
- 10 the oral a rgument, it has been indicated by the Commission l
11 that when a OA contention comes in there has got to be some 12 kind of specifics, and this simply, I respectfully suggest,
() 13 is not specific enough.
14 The cooling system surveillance. Now this one i
15 the Board, which I cited I hope to the transcript in my 16 brief, and you've got to go back and see the context of-17 that.
18 When this was argued before the Licensing Board 19 the point was made to NECNP that you're claiming the 20 ultimate heat sink is going to get blocked up here and so 21 I forth and it isn't a safety system. And you will find them 22 answering no, no, no, for certain purposes it is.
23 Now that was, item No. 1, an assumption that was l
l l 24 wrong. The tunnels are not part of the ultimate heat sink l
l l
(} 25 in the safety sense. When you read over the PSAR and ER 1
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8341 02 02 109 r -rysimons 1 and everything else, the ultimate heat sink is ---
O 2 JUDGE WILBER: Before you go too far, was that 3 limited to only tunnels?. I thought she was talking about t
4 the heat exchangers and all of this remainder equipment.
5 MR. DIGNAN: The way the thing was argued, and 6 thie. is what I'm getting to, and I will~ come up with that,.
7 The way this was argued before the Licensing Board was over 8 uhether o'; not the tunnels were a safety system and the 9 ruling was originally made that way.
10 Now-the argument is being made, and I'm not 12 going to go so far as
- say that it wasn't even suggested 1
12 below because as I'- ;e-read things, and that's what I
() 13 said in my brief, I didn't really know what that footnote 4 14 meant. Now the argument is being made, as I understand it, 15 that a clam will break off and block the heat exchanger.
16 But the problem again, and thia is where the y' 17 Board was right in saying that it had been litigated
^
lu Defore, if you read the FSAR and in particular Section i 19 9.2.1.2, the fifth paragraph, you will find that the design l
20 of the service water system is such that the strainers are i 21 deliberately set at a smaller level than the width of any 22 tubes in the heat exchangers. Therefore, again, you have l
23 something that in the physical real world cannot happen.
l 24 Now if finally the contention is the clam is l
25 going to go down there and grow in the thing, which was
} :( )
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8341 02 02 110
-(]rysimons 1 never made specific, it's a heck of a place to grow in a V
2 heat exchanger ---
3 . JUDGE WILBER: But wasn't that part of the 4 abnormal occurrence report that they were getting through 5 the strainers and they were growing?
6 MR. DIGNAN: Yes, but I'm not sure there were 7 strainers in the service water system in those other plants 8 and, indeed, I think in those other plants it was the 9 circulating water system that was at issue and not the 10 service water. But in this plant anything that gets 11 through those strainers has to be able to go through the i 12 heat exchanger. I mean it was designed that ---
l O
U 13 JUDGE WILBER: Unless it grows.
14 MR. DIGNAN: All right, but this is the peint.
15 Now we're talking about growth in the heat exchanger. Now, . j i
16 first of all, my guess is it's a pretty difficult place to 17 grow given the temperatures at least on one side of the 18 heat exchanger. But, more importantly, that is not a l
l- 19 safety question either because gradual growth will j 20 gradually slow down the heat exchariger and will alarm the 21 situation for you in the service water system.
22 So I really think the Board was correct in l
l; 23 " relying on the real world design of this plant even on this i
24 business of now bringing up something other than the 25 tunnels themselves and claiming that there could have been l
i L
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8341 02 02 111 rysimons 1 blockage down the line in the service water system.
2 SAPL Supplemental 3, the summary dispcaition.
3 That matter was decided on cross-motions for summary 4 judgment which, while I agree is not conclusive, is a 5 pretty good indication that a pure question of law was in 6 fact pcasented.
7 Now as I understood the SAPL argument in the 8 brief, and I'll get to some things I heard orally later, is
- 9) that they filed an affidavit which raised an issue of g 10 fact. However, as we point out in our brief, when you 11 review thct affidavit, the affiant was telling the world 12 really what he wished was in the policy statement and not O t3 i
what was in fact in there, and he didn' t challenge at all j 14 the actual analyses done by the staff. He disagreed that 15 other things should be done, but he didn' t take the 16 position the staff has miscalculated this dose or anything l
17 like that.
18 Now all I can say on this point is what I snid l
19 ,
before and what I've tried to say in my brief. When you 20 lay the staff's FES against the policy statement I think it l
21 is fair to say they complied religiously with what is in 22 that policy statement.
23 JUDGE EDLES: Were latent cancers included in 24 the environmental statement? I think they were. I don't 25 have the EIS with me, Your Honor. That is a matter of
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'8341~02 02. 112 r Trysimons 1 record and whatever the record shows it will show.
O 2 Again, I think the phrase that was used in oral 3 argument is that the disagreement is with the presentation 4 and not with the facts and analysis is exactly right.
5 The SPDS issues. Now I deem it from the prior 6 decision that it is settled law now, at least at this 7 juncture, even though granted it was a decision -- the f act 8 that a decision is on a stay motion does not mean that the 9 legal conclusions are something that have to be viewed as 10 not binding and that as SPDS need not be fully compliant 11 before any operating license issues.
12 That being the case, we are down to the various .
() 13 items the Boar.d dealt with and did they deal with them 14 correctly. And I respectfully suggest that a review of 15 that decision demonstrates a very careful analysis by the 16 Board of what they thought maybe should be moved up and 17 what shouldn't.
18 A lot was made in this oral argument about the 19 containment isolations being 26 feet away, but keep in mind 20 what is 26 feet away as a bank of lights. If any of them 21 are -- and I think they burn white, they either burn white 22 or red or green, I don't know -- if any one of them is out, 23 you know you don't have isolation. It's not something you
?4 have to read in close to find out what's going on. You
(} 25 know you don't have containment isolation is anything blank ACE FEDERAL REPORTERS, INC, l; 202-347-37(0 Nationwide Coverage MG3364M6
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'l 8341 02 02 113 shows up in that bank. I think that is a perfectly L -(')7rysimons
(- 1 2 rational thing to say somebody could see that 26 feet away.
3 Steam line radiation and stack radiation I think 4 were the other ones that were given some attention on oral i l 5 a rg ument . If-you read the findings, which are accurate, ,
l l 6 they are on the so-called RDMS at arms-length away from the j i
7 fellow at the SPDS. So I think the Board was thoroughly !
L I 8 rational in its conclusions on that subject and they are I l
9 well supported. l l
10 Now with respect to the witness who did not l
11 testify, to begin with, as we point out in our brief, if j i
12 you look at the motion that was filed on this, I '
() 13 respectfully suggest that it didn't come even close to 14 procedural regulations to get a specific staff witness.
15 The second thing is the testimony simply I j 16 cannot conceive would have had' anything to do with the 17 issue properly before the Board in any operating case. It 18 may well be that counsel could have called this witness and 19 made the witness feel uncomfortable by virtue of the fact 20 that the staff did or did not go forward with something as 21 rapidly as somebody else might think they should have.
22 But assuming they were able to make that case, 23 and I'm not at all sure that would have been necessarily 24 the testimony, there were probably other factors operating 25 as there usually are, but if they had, what does it avail
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l 8341 02 02 114 l l rysimons 1 us? 2 An operating license proceeding is not set up to l 3 supervise the staff in the conduct of its administrative 4 duties committed to it by the Commission. 'Indeed, there is 5 a lot of law on the books that says an adjudicatory board j 6 has no business attempting to supervise the staff in its l l- 7 independent role. So, therefore, I think this witness 8 could not conceivably have added anything to this case. l 9 With the sirens, with the permission of the 10 Board, I will depart from going actually in order and I 1 11 would like to treat both the Massachusetts and the SAPL 12 arguments together on this subject. () 13 Let's start with the Massachusetts. The 14 Massachusetts motion, they now claim that they should not ; 15 have flunked the five f actors test because it was only when 16 the affidavit was filed indicating some wrong data was 17 involved that they knew about the issue. 18 Now, first of all, I want one thing cleared up 19 right now. A remark was made here that the consultant has 20 a bad track record. Now what we said in that affidavit and 21 what I want clear in this record is the consultant does not 22 have a bad track record. We, the applicant, gave the 23 consultant the bad information. 24 JUDGE EDLES: But I thought the argument was a () 25 little more sophisticated than that. Imat it said is this ACE-FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800 3364M6
4: l 8341 02 02 l~15 rysimons 1 fellow was the one that put in all of the sirens, and you j 2 told him what the frequency was, and how come he didn' t 3 remember that those were the wrong frequencies and then why 1 4 did he pick --- l 5 MR. DIGNAN: HMM didn' t put the sirens in. 6 JUDGE EDLES: I thought that was the information 7 in the record. 8 MR. DIGNAN: No. 9 JUDGE EDLES: Who put the sirens in? l 10 MR. DIGNAN: I can get the answer to that. 11- JUDGE EDLES: I thought the information in the 12 record was that --- 13 MR. DIGNAN: ' Various construction contractors L 14 put them in. 15 JUDGE WILBER: This may had nothing to do with 16 the design of the system? 17 MR. DIGNAN: He had to do with the design -- 18 frankly, if you want to know what happened here, in 19 fairness to this consultant, he questioned the information 1 20 and was told, oh, that siren is at that level. 21 So, you know, a man's reputation has been 22 attacked professionally here, and I want it clear, a 23 mistake was made as we candidly said, but it was not that 24 consultant which made the mistake. He was given 1 25 information, and this is not part of the record, but I want j ACE FEDERAL REPORTERS, INC. I 202-347-3700 Nationwide Cmerage MO U6 6646
8341 02 02 116 the Board to know, he questioned it and was retold the same 7-)7rysimons (_ 1 2 information. 3 So that's probably a side issue here, but I I l 4 think in fairness to that consultant that that should be j 5 made clear. j 6 The second thing is that when you get all 7 through tracking the SAPL and Massachusetts argument and 8 forgetting whether or not again abusive discretion occurred 9 in the decision of the Board on whether or not the five 10 factors were passed by Massachusetts, and that is an 11 abusive discretion standard since the decision in Comanche 12 Peak also, the fact of the matter is when you get all () 13 through with this, it simply is not a significant safety 14 issue. 15 JUDGE EDLES: Mr. Dignan, pretend for the moment 16 that you are not a lawyer and I'm not a lawyer. 17 MR. DIGNAN: All right. 18 JUDGE EDLES: Why doesn't it make sense for us 19 simply to say all right, look, these are technical 20 specifications essentially and why don't we just order up 21 new tests of both sirens and submit the results to us and 22 we'll bring this issue to an amicable conclusion? 23 I understand the legalisms and the motions, but 24 why isn't that a sensible --- () 25 MR. DIGNAN: If the Board would structure that ACE. FEDERAL REPORTERS, INC. g 202-347 3700 Nationwide Coverage fM336-6646
l l l 8341 02 02 117 l l rysimons 1 order in such a way that it would permit our schedule to go 2 forward, I have no problem with submitting the tests to 3 come to the Board. 4 If the Board wishes to do it that way, I 5 certainly have no objection, but keep in mind this is why . 6 we say it's not a significant safety issue. We have to 7 submit those tests to the staff, and if they flunk they 8 flunk and we'll hear fran it. 9 This is why I say it's not a significant safety 10 issue. It is a matter that is judgable in an objective 11 manner against objective criteria, and that being the case 12 it simply is not a subject that s,hould get any treatment () 13 other than deferral to staff --- 14 JUDGE EDLES: Those kinds of matters it seems to 15 me are not necessarily even amendable to hearings. In 16 fact, the Administrative Procedure Act excludes hearing on 17 tests and inspections for exactly that reason, and it just 18 seems to me like a common sense way out of the problem, 19 MR. DIGNAN: That's right, and as Mr. Reis 20 indicated in colloquy earlier, and I'm sure he'll say when 21 he gets up here again, the staff will take a look at thi7 22 and go over it. 23 Now if the Board wishes it to be submitted to 24 them, I have no objection also because I assume if the (} 25 staff doesn't like it, what the Board thinks is going to be ACE FEDERA1. REPORTERS, INC. 202-347-3700 Nationwide Coverage M0-336W>t6 _____________J
8341-02 02 118 fq rysimons 1 irrelevant because the staff is going to police us down on L) 2 it anyway. But if that would satisfy the Board, that would 3 satisfy my resolution of the problem. 4 That brings us I do believe to the issue of the 5 separate EIS. 6 JUDGE WILBER: Before we leave the sirens, I 7 wasn' t clear. Did we get the position on the corrective 8 action for the New Hampshire sirens, whatever town that is? 9 JUDGE EDLES: As to whether they had been taken? 10 JUDGE WILBEd: Have those corrective actions 11 been taken on all of the --- 12 MR. DIGNAN: Oh, I have that in some detail. I ( 13 thought you were going to ask the staff that, but I have 14 our view on it right here. 15 JUDGE WILBER: I assume you made the corrective 16 actions and the staff may have confirmed --- 17 MR. DIGNAN: Obviously I don't bind the staff, 18 Your Honor, and you may want to hear their views. All I 19 can do is tell you what our pecple claim has been done. 20 One of the things was a test procedure. A J 21 comprehensive test procedure has been developed, and this 22 ; procedure was used on April 4, 1987 in the retest of East 23 Kingston and, by the way, it was retested on that date and 24 the test went well. I 25 Siren reorientation. They are all now, as I
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8341 02 02 119 g 7rysimons I understand it, reoriented south, and maintenance procedures 0 have been modified to maintain a southerly siren 2 3 orientation. 4 Application of the -- excuse me, Your Honor. 5 JUDGE WILBER: By "all" you mean all of them in 6 the 10-mile EPZ? 7 MR. DIGNAN: I'm not sure whether that goes 8 through the whole EPZ in particular. 9 JUDGE WILBER: That's what I recall Mr. Lazarus' 10 statement was, that they were going to correct all of them. 11 MR. DIGNAN: All right. The commitment has been 12 made and they have been oriented, and by oriented I mean (} 13 that is where their stationary position is. The rotating 14 ones still are allowed to rotate. 15 But as I understood the problem, and again I may 16 be out of my depth, but it was because they weren't 17 oriented that way originally that they plugged up with ice 18 and so forth and so on. 19 JUDGE EDLES: But presumably there has not yet 20 been a wintertime test. 21 MR. DIGNAN: There has not been a wintertime 22 test. 23 With respect to the application of water 21 y repellant coating on the siren grates, this has been begun (} 25 and it is being performed as part of the annual l L ACE-FEDERAL REPORTERS, INC. 202-347 3700 Nationwide Coverage RG33MM6 l
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'8341 02 02 120 L hrysimons1 maintenance. As of July 21 it had been done on some 30 2 sirens and they expect to com'plete them all by the end of.
3 September. I 4 The antenna modification on all of them has been 5 modified with the exception of Rye that had been modified ( 6 by installing radio wire ground plans. I understand with 7- Rye there are some legalisms going on that could not allow 8 that to happen. 9 Then I think you already know the ambience sound 10 level contract has been let, and they are. scheduled to be-l 11 done and my people tell me in either the third or last week i 12 in August is probably when they are going to be done. O 13 ^=a or coer e #1a aeter 'o ar net- e the i 14 staff's view as to whether what I have told you is correct. 15 The separate RIS for the low-power operation. 16 Now I am going to put my lawyer's hat on. I think you are 17 bound by the prior Commission precedent. I think you are 18 bound by Cuomo also, even if my brother wants to say there 19 is something deficient there because of the Court of 20 Appeals speaking in a stay motion, which I don't agree i 21 with. The Commission binds you on that one, and the most 22 you could do is certify that question up to the Commission 23 as to whether they wanted to change their mind. 24 The 2758 petition, I don't have much to add to l 25 my brief. As I analyze this, overything was generic except ACE FEDERAL REPORTERS, INC. l 202-347-3700 Nationwide Coserage 8(KL336-6646
r 8341 02 02 121 for one thing, and that was the Massachusetts ('_')3rysimons 1 2- noncooperation in this situation. And as we point out in 3 our brief, this argument, this was unique in that the 4 Licensing Board was on very sound ground because the 5 Commission had gone out of its way because of the way a 6 question got sent to them by the Licensing Board to saying 7 that they didn't think much of that as a matter of policy 8 as well as regulation and therefore I think the likelihood 9 of a prima facie case having been made to suspend that 10 regulation was zero in light of that decision. 11 JUDGE EDLES: What about the fact that the 12 Commission has now called for the submission of a utility () 13 plan and what are the implications of that for some of 14 those prior Coumission determinations? 15 MR. DIGNAN: I think I'll answer it this way, 16 Judge Edles. In many respects I don't know. One of the 17 problems with the Commission decision, as you know, and 10 I've read it and I assume you've read it, is an affirmance i 19 of the legal reasoning of this --- 20 JUDGE EDLES: I would like to think so. l 21 However, others characterize it as --- 22 MR. DIGNAN: And then they announced that they 23 had made a policy decision to require the plans. That is 24 all it is, is a policy decision. 25 Now this Board of course deals only with I l l ACE. FEDERAL REPORTERS, INC. 202-347-3700 NationwiA Coverage 800 336 # 46 _____ -________________-___ -____-_ ___ - ____ -__ m
8341 02 02 122 arysimons I legalisms. I would think if the Board feels that perhaps 2 this change in policy in any way undercuts the prior 3 Commission legal precedent, then the proper course for the 4 Board to do would be to certify a question to the l 5 Commission and say we deem ourselves bound, which I think 6 you are legally by your prior decision, and should we read 7 into your policy statement a weakening of these 1 8 precedents. That's the best I can do for you on that. l l 9 I don't thfnk that the existence of a Commission l j 10 decision announcing a change in policy is enough to free l 11 this Board of the legal precedents that bind it. I 12 Finally, and I'm not sure this was even l 1 1 13 addressed in oral argument, the validity of 50.47(d) per l 1 O 14 se, and on that one obviously this Board is not the forum 1 f 15 to raise that in. I'm sure my brother from Massachusetts l 16 is raising it simply to preserve it for a later torum. l 17 JUDGE WILBER: Before you leave that, can we get l 18 back to the clams for a while. l l 19 (Laughter.) l l 20 I want to be sure I understand it. I believe 1 21 you said that normally salt water would be used in the 1 1 22 service pumps into these heat exchangers which are cooling l l 23 the safety related equipment. 24 MR. DIGNAN: Correct. 25 JUDGE WILBER: And the only time you would go to O l ACE FEDERAL REPORTERS, INC.
'8341 02 02 123 I marysimons 1 what -- is that considered part of the ultimate heat sink?
t A-- 2 MR. DIGNAN: Well, the service water system.of
- 3. course is not part of -- the circulating water system is 4 part of the ---
5 JUDGE WILBER: Not the circulating, I'm talking 6 service water. 7 MR. DIGNAN: The cooling tower? 8 JUDGE WILBER: No. As I understand, you have 9 circulating water which goes to the condenser, and I 10 understand that, but you also have a service water system 11 which feeds the heat exchangers which in turn goes to all 12 of the safety related and the diesel generator coolers and 13 that type thing. (), 14 MR. DIGNAN: But keep in mind another thing, 15 that that system, the service water system when using salt 16 water even under the original design is chlorinated. 17 You see, remember, one of the reasons the issue 18 was raised below is as originally presented Seabrook was 19 not going to use chlorination in the circ water system from 20 end to end, and they were going to use back flushing. Now I 21 that has changed, 2.s the Board is probably aware. The EPA 22 authorized using chlorination. 23 But the circ water system, and that's the reason ; 24 it wasn't given any attention down below, the circ water 25 system is chlorinated and always was from the start. ; l 7 ( l ACE. FEDERAL REPORTERS, INC, 202-347-3700 Nationwide Coverage MXh336-6M6
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-8341 02 02 124 marysimons 1 I don't know if that addresses the concern ---
l3 kJ 2 JUDGE WILBER: What I wanted to be sure was that 3 these heat exchangers which are fed by the service water, 4 the salt water system, are the same heat exchangers which
- 5 are fed by the fresh
- :ater system when you were on the f
6 cooling tower. That's correct, isn't it? 7 MR. DIGNAN: It is my understanding that is 8 correct, yes. I'm getting a nod from the technical people 9 so I feel better. l l 10 JUDGE WILBER: If these c7.ams or whatever they l 11 are were to get in and plug the heat exchangers, and I 12 understand you addressed that ---
- 13 MR. DIGNAN: Yes.
V 14 JUDGE WILBER: -- they would plug it for the 15 fresh water as well. 16 MR. DIGNAN: That is correct. The question of 17 plugging has to be handled by something other than the 18 shift over to the fresh water. 19 And I just want to add one more time, which I 20 did not, and I apologize in my initial addressing of this, 21 keep the mind the service water system, unlike circ water, 22 from the start is a chlorinated system, which is one of the 23 ways you get at the clams. 24 JUDGE EDLES: Mr. Backus I believe made the f - 25 argument earlier that if we find deficiencies in the U ACE-FEDERAL REPORTERS, INC. j j 202-347-3700 Nationwide Coserage 800-336-6646 j l i- . ___. _ ___ Q
1 I l 8341 02 02 125 l
- marysimons 1 Licensing Board's decision in any respect, our obligation i r Lm) 2 is then to reverse, remand or do something like that and to l 3 in effect hold up issuance of the license, and I asked all 4 the three intervonors to address the safety implications, 5 if any, of allowing a license to remain in effect during a 6 remand or something like that.
7 Would you like to address that as well? 8 MR. DIGNAN: I would. 9 To begin with, with all due deference to my 10 learned friend Mr. Backus, the law of the Commission has 11 never been that simply the reversal of an initial decision 12 results in a loss of a license under any circumstances. 13 And going way back to the days when the ECCS 14 issues came up 'and the issues that came out of the later 15 reversed decision of the Court of Appeals concerning FES 16 contents and so forth that was reversed in Vermont Yankee, 17 the Commission has always held tnat you analyze what it is 18 that you've got on your hands as a result of this reversal, 19 and there is a set of standards I think laid out pretty 20 well in those two cases that are to be gone through. 21 One of them is just what is the significance of 22 the safety question involved before you not only overturn 23 or remand the initial decision but, in addition, vacate an 24 order allowing a license to issue. 25 So the law is clear that you do consider these ACE FEDERAL REPORTERS, INC. 202 347-37(0 Nationwide Coverage 8(0-33M6t6
8341 02-02 126 1 marysimons 1 matters.- I confess I can find none of them that I think C 2 would warrant even assuming if you reverse down'the'line 3- here --- 4 JUDGE EDLES: Why don't you tick them off for me 5 and tell me why. 6 MR. DIGNAN: All right. That's what I was going 7 to try to do. 8 JUDGE EDLES: Fair enough. 9 MR. DIGNAN: Environmental qualification of 10 electrical equipment, on the worse case what we've'got is a 11 documentation problem. At low power the only real concern 12 would be of this cable's ability -- I mean if you agreed 13 with everything NECNP said and you assumed that some 14 witness would have testified these things are not similar, 15 the most you've got is a posr,1ble problem in a harsh 16 environment. 17 Well, you're not going to get that harsh 18 environment to the extent at full power that you're going 19 to got at low power. So I don't think it is. 20 More importantly, the siri.larities it seemed to 21 me and the type of issue that is involved here are great 22 enough so that it is, in try opinion, basically a paper 23 problem we're talking about --- 24 JUDGE EDLES: But paper problems I mean reflect 25 real hardware problems. When you're telling me by the way (g) ) ACE FEDERAL REPORTERS, INC. 202-347-37(O Nationwide Coverage 800-336-6646
8341.02 02 127 marysimons 1 we can't document, let us assume, the environmental 2 qualification, that cauld mean that there is no 3 environmental problem. 4 MR. DIGNAN: No, no --- 5 JUDGE EDLES: When you say paper problem it 6 makes it sound trivial when really it isn't. 7 MR. DIGNAN: This is when you have to go to your 8 technical people. Now maybe Judge Wilber would disagree 9 with me on this, but there is enough in there for a 10 reasoned opinion to be made that this cable is likely to be 11 able to do its job for the duration of the low-power 12 license and anything that would occur if there were an 13 accident at low power. You're not dealing with a full-14 power situation. 15 So I cannot see this as a significant matter and 16 indeed, if I heard Ms. Curran, she doesn' t either. s 17 The steam generator tube inspection, there again 18 the question is whether a new type of surveillance program 19 shou]d be in. In point of fact, and if there was 20 consideration of picking it up, what one would find is 21 probably an affidavit coming in on a consideration of what l 22 the surveillance program was. I think to rely on 1.83 l 1 23 while matters are litigated is a perfectly rational 24 position for a Board to take. 25 The QA on design and construction. Now on that ACE. FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 8(Vb336-6646
8341'02 02 128 marysimons 1 one again the OA program at Seabrook, to my knowledge, has r~ ( N- 2 never been question in fact by any staff inspection or 3 anything else to any substantive degree whatsoever. The OA 4 record on this plant is well known and it is excellent. 5 Therefore, I think again you haven't got a 6 significant safety issue here on the question of whether or 7 not some items perhaps should have been included that'were 8 not. And as I said, I think when you go over it you'll 9 find that they did get 0A treatment. 10 JUDGE EDLES: But did they get some lower level 11 of OA treatment than if they were considered safety 12 related? 13 MR. DIGNAN: Well, as I reviewed the OA program, 14 and again you've put me at a disadvantage, but I would not 15 as a lawyer, Judge Edles, characterize it so much as lower 16 than different. What I mean by that is certain things are 17 done that are not done, but certain things are when you 18 read all the way through it. But I won't reject the 19 characterization of lower, but it's certainly an effort 20 that is commensurate with what good engineering practice 21 thinks is necessary.
- l. 22 The cooling system surveillance, again as I have 1
23 indicated, the plant sitting out there, the strainers are 24 going to prevent anything coming through from blocking. l l 25 It's a chlorinated system. It is now, incidentally, an all l l l I i l /\CEJFEDERAL REPORTERS, INC. 202 347 3T00 Nationwide Coverage 800-336-6M6
8341 02 02 129 l I marysimons 1 chlorinated system. The circ water system is chlorinated I O> k 2 also. So I just don't see this as a real problem. i 3 Keep in mind that for something of any size to 1 4 get up even into the circ water system towards the main 5 condensers, it's got to come through that tunnel and go up 6 the risers and through the pumps. I mean it's a pretty 7 unlikely event and I don't think one that the Board -- and 8 indeed keep in mind the Commission never proposed shutting 9 anybody down when they found the problem in the first 10 place. They simply wanted it analyzed. 11 SAPL Sup. 3, again, and I. don't want to draw the 12 wrath of Judge Edles, but what I mean by a paper problem 13 here is something a little different. The staff either has O 14 written out what they should write out or they haven't. It 15 really doesn't have anything to do with whether that plant 16 sitting out there is in conformity with regulations. 17 The SPDS issue, let's forget the law for a 18 minute. As I've indicted, the law seems to be you don't 19 have to have one, but let'3 assume for some reason the 20 Board decided you do have to have one. 21 Well, the fact of the matter is that if you 22 follow all the testimony through, among other things it was 23 stated by the staff witness I believe that the Seabrook 24 SPDS as you look across the industry was a pretty darn good 25 one. In other words, it was well ahead of many. I think s <~) ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 80433M646
e lJ 8341 02 02 130 1. marysimons 1 Comanche Peak was rated as being committed to more' things l (3
\~l 2 at that time..
3 And if it's a real safety question not to have 4 an operable SPDS, then there are an awful lot of operating 5 plants out there. So I think the Board could rationally 6 conclude that this was not a matter that should interfere 7 with low-power testing. j 8 The sirens issue, again I think-I can do no more 9 than what Your Honor suggested, go out and test the l 10 suckers. They either make it or they don't. So I don't 11 think it's something to pull a license over. If the 12 license were going to issue tomorrow and that was 13 something, we would probably make the test a lot quicker, 14 but I think that that's unlikely given the various stays 15 that are lying around. 16 JUDGE EDLES: These may well be'out of our 17 hands. 18 (Laughter.)
> l 19 MR. DIGNAN: The EIS, again it's paper and it's 20 not a safety question. The 2758 and the 50.47(d) are legal 21 issues purely. So I come out that even if you went right 2* down wie line against us here, the result should not be any 23 loss of the license but only a remand to fix up the record.
24 JUDGE EDLES: Okay. Thank you. 25 Do you have any more questions? i ACE. FEDERAL REPORTERS, INC. I 202-347-3700 Nationwide Coverage 8( 4 336-6646 _ _ _ - _ _ - _ _ - _ - - _ _ - - _ _ _ _ ~
'8341 02 02 131 marysimons 1 JUDGE WILBER: No.
(- 2 JUDGE EDLES: Thank you very much, Mr. Dignan. 3 Mr. Reis. 4 ORAL ARGUMENT OF EDWIN J. REIS 5 ON BEHALF OF 6 THE NRC STAFF 7 MR. REIS: If it please the Goard, the Board 8 served on the staff certain questions, and I would like to 9 go through those and answer those, and then go through the 10 argument. 11 The questions themselves pretty much. follow the 12 arguments that have been made this morning. So I might 13 once in a while digress into the arguments that the 14 interveners and the Commonwealth made this morning. 15 The first question was has the staff performed 16 the audit of applicants' environmental qualification files. 17 The staff did so limited to the files that had 18 been looked at before as a result of this question. The 1 19 documents supporting that are not yet in the Public 20 Document Room, but will be put there when we get back to 21 Washington. 22 As indicated though by the Board itself in 23 Finding 64, the staff typically asked the applicant to l 24 notify it if the applicant has corrected the 25 deficiencies. The applicant did so here. The Board below l C) l l l ) ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6646
l l
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marysimons 1 did not require any more and we didn't see a need to go A 2 beyond our regular procedures in this particular situation 3 at this time. l 4 Further, looking at the EQ files as a whole in i 5 this proceeding, I would like to point out that the Board ! 6 below spent a considerable amount of time in looking at the 7 EQ files and the documentation. 8 In Findings 65 to 90, which encompasse6 pages 55 9 to 66 of the partial initial decision the Board went 10 through the documentation and what was there on files that 11 NECNP and the others pulled out for the purposes of cross-12 examination and for the purposos of the hearing and found, 13 with the exception of beefing it on one file in one area on 14 the maintenance of the silicon oil risers on some - 15 transmitters, that they weren't in proper shape. 16 We previous to this hearing and before the Board 17 said anything went out and checked what the Licensing Board 18 had said should be done was indeed done and that the 19 maintenance procedures that the Licensing Board said should 20 be there were indeed put there and were properly in the 21 files. 22 So we not only have a question --- 1 23 JUDGE EDLES: Yours indeed is an audit though. I 24 It's not a 100 percent review of the files. 25 MR. REIS: No question, Your Honor. But let me ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coserage 8(KL336-6646
I ! L 133 ['83410202-l. l marysimons 1 say that the actual extent and even though the audit -- no l 1 rm
'2 matter what the audit was the first time, what our I i 1
L 3 contractor found the first time and what we set the second l l 4 time, the interveners had an opportunity at hearing of-1 l 5- going through certain files, of cross-examining on them at 6 the hearing and the results of that are reflected in the l 7 Licensing Board's decision. 8 The only place where a question arises as to the 9 actual equipment was the use of the RG-59 cable as a mcdel 10 to qualify and whether it was similar enough to qualify RG-11 58. I think I have it in the right order. 12 There was testimony that it was so. After that
~
13 testimony came in, as the applicant has said, it was on the 14 interveners either to break the testimony down or to bring 15 in an expert witness to show that it was not proper, but 16 they did neither. 17 Now turning to --- 18 JUDGE WILBER: Excuse me. On that issue though 19 wasn't the testimony to the effect that yes, they looked at 20 it and yes, they found it all right and that was the extent 21 of the testimony, and they went on and said they had no 22 record and there was not requirement for a record? 23 MR. REIS: That's right. That's right, Your 24 Honor. But I think in the testimony itself, although the 25 technicality of their not being a record, and certainly as O ACE. FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 8( 4 336-6646
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L h l 8341 02 02 134 I marysimons 1 Your Honor point out, the-IEEE standard.might call-for a l f' ) L 2 record. But if you fairly read the testimony of Mr. l l 3 Woodward who testified as transcript 380 to 383 in that 4 area, thiswasn'taperfunctoryreviewm$bebythe 5 applicant. l 6 JUDGE WILBER: But from the record you don't 7 know what it was; is that correct? It's just his statement L 8 that they made a review. 1 9 MR. REIS: Right, but he indicates it wasn't i 10 perfunctory as well, and that wasn't in any way challenged. 11 If I may, I'm going to go to the contention on l 12 2B-2 on important to safety and safety related. g~ 13 Let me first point out that the. contention () 14 itself of the applicant -- well, first of.all, the specific 15 question the Appeal Board asked was has the. Commission 16 acted on this and has it cleared it up? 17 No, it has not. In the NUREG page, NUREG 0936, 18 Volume 6, No. 1, we went the page to the Appeal Board 19 before this argument just for its information. There is an 20 indication there that the Commission was to act by June the 21 1st. The Commission has not acted and it's not on the 22 calendar for the Commission at least through Labor Day. So 23 I don't know what the Commission's pleasure is with that. 24 It has been there a long time. 25 Let me point out that the regulatory agenda and ace-FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Cmerage MD-336-t446
-_.-_____7 8341'02 02 135 r mar h ysimons 1 what was to be acted on ---
2 JUDGE WILBER: Excuse me. On that issue, they 3 have not even issued a proposed rulemaking; is this 4 correct? 5 MR. REIS: That's correct. 6 JUDGE WILBER[ All right. 7 MR. REISs There is no rule and there is no n 8- proposed rulemaking. All it is is on the regulatory agenda 9 to be' looked at, s 10 JUDGE EDLES: So we are back to the basic ground r 11 rules that I think Rosenthal, Wilber and Edles had before 12' us in the Shoreham case, which is basically important to 1 13 safety is something broader than safety related and the z v' 14 Commission told us to take it up on a case-by-case basis 15 until they figured something out. 16 MR. REIS: Exactly what they said in CLI-84-9. 17 However, let'me pdInt out that the regulatory agenda item, t 18 which I also sent to you because it wasn't readily 19 available and the Sasis of my sending the letter was that I 20 had trouble finding that document, was that in that 21 regulatory agenda item back in 1982 there was a different 22 definition, and what the Commission proposed to do and l 23 might do in the future was to define them in some what that 24 was synonymous in '82. 25 Now they're saying if any regulation does come O 3 ACE-FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 8(Kk336-6M6
8341 02 02 136 1 , marysimons 1 out, it will define important to safety as a broader i 2 classification and safety related as a narrow 3 classification as part of that. 4 JUDGE EDLES: From the staff's perspective can 5 you address Mr. Dignan's observation that the real 6 difference between important to safety and safety related 7 is that the requirements are different but not necessarily 8 less important to safety? 9 MR. REIS: Yes. I would agree with that, and 10 particularly when you go back to the wording of GDC-1 where 11 it all stems from. 12 It has to be a quality assurance program r^s 13 commensurate with the items important to safety, and L) 14 obviously there are some things like offsite electrical 15 power systems which you could not apply Appendix B to, but 16 you need to assure that it is of high quality. 17 JUDGE EDLES: But it is available to an 18 intervenor to say that a particular system or component is 19 not safety related, but is important to safety and they 20 want to recommend some heightened level of quality 21 assurance treatment. That would be a valid contention. 22 MR. REIS: Not only that, but that type of 23 contention could have been filed back originally when the 24 contentions were there. As we point out in our brief, the rw 25 FSAR had been issued. If they felt that anything didn't U ACE. FEDERAL REronTEns, INC. 3 202- 3337m Natiomode Cmcrape m 336-tita(>
l-8341 02 02 137
. mar meet GDC-1 of Appendix A, any particular piece of
()'ysimons1 l 2 equipment, they could have specified --- l l l 3 JUDGE EDLES: Well, why haven't they don't that 4 as to the four or five items that were included I believe 5 in the contention? l 6 MR. REIS: They didn't. All they said, and if I l 7 go back to the contention, is that the regulatory agenda 8 gives examples for which Appendix B does not apply. They 9 didn't say though that the applicants are not applying the 10 proper standards under Appendix A. They don't even say 11 that in the basis. There is just no' indication. 12 JUDGE EDLES: What one might reasonably infer 13 from that is that they wanted, at least those handful of 14 items, they wanted Appendix B to apply. Why isn't that 15 reasor.able inference from that contention? Isn't that the 16 gist of their contention? 17 MR. REIS: I don't think that is a reasonable 18 inference. I don't think that they were ever saying -- 19 well, they were saying because they were saying that in a 1 20 proposal at that time, not what was required by the j
-l 21 i regulations, but in a proposal at that time Appendix B l I !
22 should apply to these items, but they were much broader 23 than that. They were saying that Appendix B should apply 24 to all important to safety items, and they weren't 25 specifying why or which ones. l l 1 l ACE FEDERAL REPORTERS, INC. 202 347-3700 Nationwide Covdase 800-336-& 46 ____________________________a
8341 02 02 138 marysimons 1 To just pull equipraent, the mass of equipment O 2 out of a plant and say some regulation should apply, I 3 don't think is the proper basis for a contention. You have 4 to have a reason why you think the regulation should apply 5 and you have to draw some nexus, and the nexus here was not 6 drawn. 7 They just named some equipment. It's quite 8 similar to what they did, if I can change the subject, in 9 connection with the steam generator. They didn't show any 10 nexus between the failure at Ginna and Reg. Guide 1.83, and 11 certainly -- I'm sorry. 12 JUDGE EDLES: But we've got a problem on the (S 13 Ginna thing, Mr. Reis, and the problem is Mr. Dignan tells V 14 me he can't prove there wasn't a connection and maybe Ms. 15 Curran can't prove there was a connection, and I'm being 16 told that that being the case and at the moment there boing 17 no proof on either side, I'm not to allow anybody to try 18 and develop proof on either side. That's basically what 19 I 'in hearing . 20 MR. REIS: What you're hearing is something
! I 21 else. Where a piece of equipment fails in plant "A" and i l 22 l Reg. Guide 1.23 applies, and I'm puling that out of the air l
23 for that equipment, then what the interveners are telling l 24 you is essence is that it is a proper contention. Just l l <, 25 because there was a failure, an inadequacy shown in some U' l l l ACE. FEDERAL REPORTERS, INC. 202 m 3 oo Naionwide cmerage wn336 fa6
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i l 8341 02 02 139 ) l rysimons 1 piece of equipment, they can come in and say ah ah, that ' 2 equipment was governed by 1.23, and therefore it is a ; 3 perfectly valid contention without anything more than to I 4 just say well, gee whiz, that's governed here and therefore I 5 that isn't sufficient. There has to be some showing of 6 nexus. I i 7 JUDGE EDLES: Let me give you a different j 8 example, one that I can understand. l 9 I take my car to the mechanic and I say I'm ; 10 going on a long trip, check my four tires, I want to make i 11 sure they are okay. 12 He comes back, Gary, not to worry, they are in
,r's 13 terrific shape.
U 14 I go out and I'm 20 miles out on my trip and 15 I've got a blow-out. So I immediately put the spare on and , 16 hustle back and say what did you do? 17 Now he may in due course do a re-examination, 18 and he looks it over and he says well, the problem is 19 you've got a nail here that you picked up on the road. 20 But all of that is kind of the merits stuff, but 21 why at this sort of threshold stage aren't I entitled to at 22 least at the outset to say to him didn't you miss something 23 here and we'll figure it out, and rauy:m down the road he'll 24 - prove to me that there was something else. rS 25 We're talking about the contention stage here b) ACE FEDERAL REPORTERS. INC. j 202-347-3700 Nationwide Coserage fuX)-3364M6 L______
l 8341 02 02 140 arysimons 1 and not the ultimate decision in the case. 2 MR. REIS: Undoubtedly, but even at the 3 contention stage embarking on litigations of contentions, 4 which interveners and the public have every right to embark 5 on, we must see that there is a reasoned basis for the 6 contention. 7 The reasoned basis is not enough that something 8 happened with that piece of equipment and therefore the 9 Commission's regulations governing that piece of equipment 10 or the staff's reg. guides are in question, and that is all j 11 that was put forth here, because otherwise we would have 12 contentions in, and I'll give a parade of horrors, we will r~T 13 have contentions in every time there is an incident that, L) 14 goe whiz, meeting the reg. guide or the Commission's 15 regulations is not enough. 16 There must be more. There must be some nexus 17 shown between what happened and the equipment in this plant 18 and the reg. guide. 19 JUDGE WILBER: Let me take the Ginna one step 20 farther then. Suppose that tube had been examined under 21 1.83 and then the tube rupture occurred. Is that the nexus 22 you're looking for? 23 MR. REIS: I don't even think that's it. We 24 don't know whether some foreign object came into that steam (-) (/ 25 generator af terwards, or whether there were nuts and ACE FEDERAL REPORTERS, }NC. 202-347-37W Nationwide Coserage MKh33M646
l l 8341 02 02 141 bolts --- (marysimons 1 l
') 2 JUDGE EDLES: Could the interveners go into the 3 plant, go into Ginna and send their expert in.to look at 4 the steam generator tubes to see what happened, or do they 5 have to sit back and wait for your guys to do it, and then 6 if one of these days you come around and figure out what's 7 wrong, then they are entitled to file a contention if it 8 has something-to do with the surveillance plan?
9 MR. REIS: Judge Edles, my problem is there is a 10 NUREG on Ginna and the Ginna incident, though it isn't in 11 the record and wasn't at this --- 12 JUDGE EDLES: Was it available to the
/~s 13 interveners at the time that they filed?
O 14 MR. REIS: I'm trying to think of when it was 15 published. It does indicate there was a strong question of 16 foreign objects in the steam generator. 17 JUDGE EDLES: Maybe if there was a NUREG out and 18 it explained it all they didn't cite to it, all right, 19 maybe you've got a point there. 20 MR. REIS: When I read this contention and I go 21 back to the wording of the contention, all we have here is-22 again that this equipment was governed by this and an 23 accident happened. Therefore in this plant we are going to 24 be governed by this and so it gives the possibility for an
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25 accident. That's isn't enough. ACE-FEDERAL REPORTERS, INC. j 202-347-37(X) Nationwide Coverage 800-336-M46
1 i 8341 02 02 142 l 1 rysimons 1 JUDGE EDLES: Okay. 2 MR. REIS: That's essentially what they've said. , 3 Now going to the next point which deals with the 4 sirens. I essentially agree with Mr. Dignan in his 5 statement of what is going on with the sirens and the fact 6 that they have been reoriented, that 30 of the 147 sirens 7 have had the anti-icing or the water proofing applied, that 8 the ground planes were corrected, except for the one, that 9 there was a further test, and of course this test was not 10 in the winter. 11 As far as the sirens at Merrimac, as I indicated 12 be fore , some measurements have not yet been made, but will f r~S 13 be made this summer and the staff will look at them. V 14 As to the relocation of the containment 15 isolation status indicator lights, they have been and we 16 have verified both by the resident inspector and the 17 project managor. They both went out independently and 18 verified that they have been correctly placed and that the 19 confusion that could have arisen before because there were 20 blank panels, blank spaces in the light bank, has been 21 eliminated. 22 Let me, while I am at the questions involving ' 23 working on the SPDS, look at the three areas where the 24 Licensing Board said no, you can wait until the first (~) 25 refueling outage to correct. V ace FEDERAL REPORTERS, INC.
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l l l 8341 02 02 143 l l ," 9r Essentially they were testing the wystem under l (-)ysimonsl' 2 heavy loads which the Board indicated it would best to wait l-3 until the plant is operating-and see what the heavy loads 4 are and not have a simulation --- l 5 JUDGE EDLES: What about the suggestion that you 6 can do a simulation? 7- MR. REIS: I don't know. That certainly wasn't 8 in evidence. That's raised here, but certainly a 9 simulation is possible. -I have no idea. 10 Second was the containment isolation valves, and 11 I think the Board in each case, as in that case where they 12 said you can go to first refueling outage, the Board very r~g 13 carefully looked at it and it considered it. It didn't LJ 14 make an off-the-cuff judgment. It said those are there and 15 you can look at them. You look at that spout on the wall 16 and you see what the light is, and 26 feet away really 17 isn't that far to look at that. 18 The last item deal I believe with the algorithms 19 and the testing of that later, and the Board again there 20 said this was only a confirmation and you would have noise 21 on the board, on the regular board, besides everything 22 else, and therefore, although there might be some problem 23 here, you would have enough to alert you and alert the 24 operators that it could lead to the first refueling outage 25 and that the public health and safety would not be l ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6646 l
1 8341 02 02 144 r? endangered if you waited that long. b'rysimonsl' 2 The question Judge Edles raised, essentially. 3 . what is the effect of CLI-87-02.and the Commission's f' 4 opinion in CLI-87-02, as the staff indicated in many. places . I 5 in the brief, there are certain issues that were raised' 6 before and in the posture.of this case that would not have
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7 - been decided .that way if' CLI-87-02 had been decided. 8 One of those questions is the need for.the FES 9.i for low power. Certainly that question right now is 10 academic. At such time as you would have an-offsite plan 11 that would cover Massachusetts you might have to look-at . l .. 12 that. At that point it would be the' staff's preliminary 13 position probably that the Commission's decision in the 14 Shoreham case would then' govern and no FES would'be needed 15 for low power. 16 Whether in the specific situation of.this case 17 then where there is no plan for Massachusetts you need an 18 FES for low power need not be faced. 19 -JUDGE EDLES: What about Mr. Backus' or maybe it 20 was Mr. Bronstein's observation that this really is getting 21 to be a little different from Shoroham. Shoreham was two 22 years ago and there were a whole host of other f actors, and 23 it looks even less likely today for Seabrook than it did 24 two years ago for Shoreham that this plant is ever going to [ 25 get its license? dCE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6646
l 8341 02 02 145 1 r7rysimons 1 MR. REIS: I would disagree with Mr. Bronstein. f (/ For one thing, all Government entities that had 2 on that. 3 anything to do with the Shoreham plant were against it, and 4 here we have the State of New Hampshire where the plant is 5 resident supporting licensing. So I'm not sure that his 6 statements offhand are correct. He could say that. 7 Further, as the Beard is aware, there is 8 rulemaking going forward that could affect possibly this 9 plant. I don't know how it would fall within how the rule 10 affects the licensing of this plant. I haven't looked at 11 it in detail. So we can't automatically say that. 12 The sama thing with the questions of whether you 13 need a waiver under 50.57(d). Although it's not squarely
~}
14 on point, certainly the question need not be faced at all 15 until there is such time as there is a Massachusetts plan, 16 and then we would put it in a different posture. 17 JUDGE EDLES: Okay, Mr. Reis, we have nothing 18 further. 19 Do you have anything further? 20 MR. REIS: No, I have nothing further. 21 JUDGE EDLES: Thank you very much. j 22 We'll take the rebuttal in inverse order'and 23 we'll start with Mr. Bronstein. 24 C:) i ikCE-FEDERAL REPORTERS, lNC. 202-347-3700 Nationwide Coserage 80(k33646*6
8341 02 02 146 rysimons 1 REBUTTAL ORAL ARGUMENT OF DONALD S. BRONSTEIN 2 ON BEHALF OF 3 THE COMMON WEALTH OF MASSACHUSETTS 4 MR. BRONSTEIN: I really just have a couple of 5 points that I want to make, one in response to Mr. Dignan l 6 and the suggestion that on this issue of the sirens we can l 7 simply take measurements and would that be sufficient. 8 Essentially I would accept that. If this Board 9 chose that route of ordering that the measurements be taken 10 or waiting to render a decision until those measurements I 11 have been taken, I think that would address the problem, 12 with one important reservation, and that is that we would g 13 reserve the opportunity to challenge the methodology of the 14 applicants' consultant and any report that were filed to be 15 certain that the FEMA criteria were satisfied. 1 16 I think in this case that is not just a 17 procedural nicety, and I certainly do not wish to impugn 18 the ability of the applicants' consultant. However, I j 19 think Mr. Dignan has not entirely stated the f acts 20 accurately in terns of what the consultant knew or should 21 have known about the sirens. 22 The fact is that the applicant's consultant 23 designed those sirens and stated in the design report l 24 specifically that the sirens to be installed around the l 1 g 25 Seabrook station will produce tones at 700 hertz. Hence, l ace-FEDERAL REPORTERS, INC. 200-M7-3700 Nationwide Coverage HCo-3364 M6
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.,rgrysimons 1 the measurements reported here were made with an octave l ') \
2 band filter centered at 500 hertz. 3 JUDGE EDLES: Where is that contained in the 4 record? 5 MR. BRONSTEIN: That is in the Seabrook Station i 6 Public Alert Notification System Final Design Report i 7 prepared for Public Service Company of New Hampshire by HMM 8 Associates, January 1984. 9 JUDGE WILBER: Is it in the record? 10 MR. BRONSTEIN: I believe it is. 11 So essentially we are dealing here with reliance 12' on the staff on the applicant's consultant and he doesn't {} 13 have a very good track record on this particular point, and 14 if we are going to continue to rely on that consultant to 15 do the measurements this summer, the interveners and 16 Massachusetts need an opportunity to examine those results 17 and an opportunity if necessary and appropriate to 18 challenge those results or the methodology or the adequacy 19 of the report. 20- JUDGE WILBER: I didn't realize you were 21 complaining about his ability to make the measurements. I 22 thought it was in setting up the tests that he chose the l 23 wrong frequency. 24 MR. BRONSTEIN: Hell, what I'm saying is that 25 we've got here a situation where whether because he was 1 I
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8341 02 02 148 rirysimons 1 specifically instructed by the applicant or not, the wrong 2 octave band was initially used and it was taken on a very 3 atypical day. And in light of that, I think that raises a 4 question au to the kind of scrutiny that needs to be given 5 to any report which is ultimately filed. 6 Now on the issue of whether or not there is a 7 need for this problem with the sirens to be resolved prior 8 to any low-power operation, the Commission stated in its 9 statement of considerations in response to a specific 10 concern that was raised, and that concern was "the public 11 knowledge that no offsite protection exists could cause 12 chaos in the event of an accident during fuel loading or (~N 13 low-power testing."
^~)
14 It went on to observe that certain items of the 15 applicants' offsite plans would be reviewed prior to any 16 low power testing and concluded " knowing that the above 17 elements of the applicants' emergency plan have been i 18 reviewed by NRC should assure the public that for low power 19 , testing and fuel loading adequate protective measures could 20 and would be taken in the event of an accident." I think 21 that addresses that issue as much as needs be at this 22 particular point since the Commission itself has spoken , 23 that this is an item which must be addressed prior to any ( l 24 low power operation. l l {} 25 And, finally, on the is sue of whether the l ACE-FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 804336-6M6
8341 02 02 149 f Sr Shoreham case is distinguishable or not, I have basically N] ysimons 1 2 made my argument on that. But Mr. Reis points up the. fact. 3 that in this case we have the cooperation of one of the 4 States, the State of New Hampshire. 5 My only response to that would be that the 6 cooperation of the State of New Hampshire does not seem to 7 have sufficiently reassured FEMA which recently in stating 8 its position on the adequacy of those plans stated, and I 9 think this is very a very significant point, .and I'm going 10 to quote a couple of sentences here. 11 "Therefore, using the standard guidance for the 12 initiation and during of radiological releases and the
/~h - 13 current New Hampshire RERP, including ETE, it appears that %)
14 thousands of people could be unable to leave during an 15 accident at Seabrook involving a major release of 16 radioactivity without adequate shelter for as much as the 17 entire duration of that release. 16 "Therefore, until these issues are resolved, 19 even if all the other inadequacies and deficiencies cited ( 20 in the RAC reviews of the New Hampshire plans and the 21 review of the exercise of those plans were to be corrected, 22 FEMA would not be able to conclude that the New Hampshire 23 State and local plans to protect the public in the event of l 24 an accident area adequate." l l [} 25 And I emphasize that point, even if all the j l l /\CEJFEDERAL REPORTERS, INC. ) 202 347-3700 Nationwide Coverage 800-336-6646
l l l L 0341 02 02 150 l 7"3rysimons 1 other inadequacies are resolved. This was FEMA's J 2 conclusion that there is a very basic and fundamental flaw 3 in those plans such that the population cannot be
.4 protected. And I think in light of that, we've got a 5 situation very different from the Shoreham' litigation.
6 Thank you. 7 JUDGE EDLES: Mr. Bronstein, thank you very 8 much. 9 Mr. Backus. 10 REBUTTAL ORAL ARGUMENT OF ROBERT A. BACKUS 11 ON BEHALF OF 12 THE SEACOAST ANTI-POLLUTION LEAGUE 13 MR. BACKUS: You reversed the order and I'm
}
14 still in the same place. 15 (Laughter.) 16 I have just two quick points, or maybe three. 17 First of all, I would like to say Attorney Reis 18 speaks of the State of New Hampshire and he of course was 19 equating that with our Governor. Not all of the State of 20 New Hampshire is in a position of favoring the licensing of 21 this plant. 22 On Class 9 accidents I wanted to simply direct 23 the Board's attention to the statement of material facts as 24 to which there was no dispute and point out that material {} 25 fact No. 5 was not disputed by the staff, and that fact ACE FEDERAL REPORTERS, INC.
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8341 02 02 151 j"trysimons 1 pointed out simply that Table 5.9 lists the probability of .b 2 occurrence for four major accident sequences. 3 There are no tables, figures or other statements 4 which describe the range of consequences that are predicted 5 if a single major release does take place. This is true 6 with respect to the figures and tables listed in 3 above in 7 addition to Table 5.9. 8 So there is no dispute between the parties here 9 that there is not what I'm going to for shorthand purposes 10 called a worst case accident a description of the 11 consequences of a single major accident in the FES, and we 12 contend that that was the error. 13 The other thing I wanted to just say, Judge { }- 14 Edles and Judge Wilber, is thid. I've heard you ask the 15 applicant how many of these claims if appealed should 16 impact his licensing schedule, and representing the 17 applicant of course he said none. Please issue us the 18 license and everything that the interveners have alleged --- 19 JUDGE EDLES:. With all due respect, we did not 20 ask him how would implicate his licensing schedule because, 21 frankly, that is not a matter of great concern to me. 22 The question that I asked him and the others was 23 what were the safety implications for low power and could 24 this Board if it reversed or remanded various issues () 25 nonetheless allow the low-power license to stand. That was ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6646
[. l 8341 02 02 152 i L not. suggesting that we would do something for the 1 (f"grysimons
) 1 2 convenience of the applicant.
l 3 MR. BACKUS: All right. I stand corrected, and l 4 I thank you for that, Your Honor. 5 I wanted to say just this though. There is no 6 low power license for Seabrook. No low-power. license has l l 7 been issued. There is only a decision authorizing the 8 present license to go up to five percent power. l 9 Now this Commission has in the past been 10 extremely reluctant to revoke licenses for nuclear plants, 11 and I mentioned the example of extending the emergency; 12 planning requirement deadlines for many plants around the (~) 13 country. v 14 But we have a plant here that has not been 15 licensed. Now when we got into this proceeding as an 16 intervenor group, believe me, your Licensing Board threw 17 out contentions wholesale unless we could show a regulatory 18 basis for our cont <ntions. That was the chief 19 requirement. We had to show that our concerns, not merely 20 in our opinion affected safety, but that they were involved 21 in a Commission regulation intended to assure safety. 22 So all our contentions are directed toward 23 regulatory requirements which presumably have some 24 relationship to assuring nuclear safety. And if we are {} 25 correct that the Licensing Board incorrectly decided those ACE FEDERAL REPORTERS, INC. 202-347 3700 Nationwide Coverage 804336-6M6
8341'02 02 153
,^7r contentions, there is a regulatory deficiency and the Board N) ysimons 1 2 should not therefore authorize the issuance of a license.
3 Now in those other areas it's staff discretion, 4 and the staff can decide whether reg. guide XYZ is 5 sufficient compliance with their standard review plan.and 6 so forth. We were not permitted into that game, and we 7 should play by the rules of the game we were admitted to, 8 and- the rules of that. game were we had to show a regulatory 9 deficiency 10 And if our claims here are upheld by the Board, l 11 there are regulatory deficiencies and the license should l l 12 not issue. So it kind of bothers me to hear the Board (} 13 suggest well, are these things really safety significant, 14 and if they are, can we go ahead and uphold the issuance of 15 a license subject to condition. 16 -The answer to that in all fairness to any kind 17 of meaningful legal procedure has to be no. 18 JUDGE EDLES: Mr. Backus, what you know and what i 19 I know, because we're both lawyers and have been through ! 20 this process, is that appellate tribunals ask a wide range l 21 of questions, some of which are hypothetical and some of j 22 which are designed to solicit answers in the event that i 23 there are options available to us, and none of our l l l 24 questions I think ought to suggest to you that we have l j /~T 25 predecided how we are going to ccme out on any of this. l (_/ l l l l ACE FEDERAL REPORTERS, INC. l l 202-347-3700 Nationwide Coverage 800-336-6646 ) l e - - _ _____-- -___ _ __ _ -- _ a
.8341 02 02 154' Trysimons 1 But, quite frankly, when I go back with my 2 colleagues and study all of these matters, I.want to have.
3 the. full range of options on my platter and I want all the 4 answers. I don't have an easy chance, as much as I would 5 like to come back to New Hampshire, it's not very easy for 6 me to come on back and convene this group again and ask one 7 or two questions that I might have missed this time. 8 So I want to leave no doubt that what we are 9 doing here is basically trying to solicit a broad range of 10 responses in a variety of perhaps hypothetical areas. 11 MR. BRONSTEIN: And I understand that perfectly 12 well and I have no quarrel with the question. I just (} 13 wanted to make sure our position on that question was very 14 clear before the Board. 15 JUDGE EDLES: 1 think it is. 16 MR. BRONSTEIN: Thank you very much. Again, 17 welcome, and than you for coming up here. 18 JUDGE EDLES: Ms. Curran, you get the last word. 19 REBUTTAL ORAL ARGUMENT OF DIANE CURRAN 20 ON BEHALF OF 21 THE NEW ENGLAND COALITION ON NUCLEAR POLLUTION 22 MS. CURRAN: I just want to clear up a couple of 23 things. 24 First, with respect to the free ride that we (} 25 took on the environmental qualification contention ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800 336-6t>16
8341 02 02 155 CJ '"" *" "" ' 2 during the hearings to the scope of the litigation in the 3 cross-examination we were undertaking. 4 But I think the critical time to have objected 5 to our request for what we wanted to litigate was at the
\
6 time when we opposed the low power license and we briefed 1 l 7 those issues of what we wanted to get into with the l l 8 applicants, and there was nothing from them. l 9 So it seems to me that there was plenty of 10 notice as to what we wanted to do here j 11 JUDGE EDLES: I'm not clear on that. I don't l l 12 understand. What do you mean when you opposed the low-13 power license? l 14 MS. CURRAN: In our filing date of July 2nd, l l 15 1986 we opposed the low-power license on legal grounds and 16 there was another section that said before you do anything l 17 we would like a chance to examine the applicants on their l 18 environmental qualification record, specifically on issues l 19 A, B and C. We included the equipment qualification files, 20 the adequacy of the basis for specifying qualification 21 during and we included the adequacy of the staff's review 22 to support a finding that the duration times were adequate. l 23 There fore , if the applicants had wanted us to . 24 write an amendment contention and file it then, I suppose 25 we could have done it and we would have said exactly the I ACE-FEDERAL REPORTERS, INC. 202 3 U-3700 Nuionwide Cosetage 800-336 6646
8341 02 02 156
- rysimons 1 same thing that we said in this brief. But we said it and 2 they didn't object, and I think it was acceptable as 3 stated.
4 With respect to the quality assurance 5 contention, I would just like to say that both the 6 applicants and the staff have said over and over again that 7 we never provided any examples of what we wanted to 8 litigate, and I just want to make it clear that we used the 9 examples in the regulatory agenda and we tied them to the 10 applicants' list, their QA list in the PSAR. 11 We couldn't find the equipment in the FSAR that i 12 the Commission had listed, and therefore we considered (} 13 those things should have been in a OA program. Those were 14 our examples. And the argument there were no examples is 15 just baffling to me. I think we gave them in both 16 instances with respect to the construction OA and the 17 operation OA. 18 With resoect to the difference in the 1982 i 19 regulatory agenda --- 20 JUDGE WILBER: Could I go back to your last 21 comment there on the item of five or six examples that were 22 listed. Are you saying that they should have had a full OA I 23 or full Appendix B applied to them? 24 MS. CURRAN: Yes. l () 25 JUDGE WILBER: Okay. ACE FEDERAL REPORTERS, INC. i 202 347-3700 Nationwide Coverage 800-33MM6
b
, i8341 02 02 157 n rysimons 1 MS. CURRAN: And this brings us to the next b 2 issue which'is this distinction between what.is important 3 to safety and what is safety related.
4 Mr. Reis point out that in '82 the Commission 5 was equating the two terms, and then in the most recent 6 regulatory agenda they seemed to be going back to the 7 concept that the important to safety classification is 8 broader than safety related. 9 Now applicants say they equate them, that if 10 they consider something that is important to safety it's
. 11 also safety related. In trying to get out of the semantic 12 argument, our whole point in this contention was that these 13 particular pieces of equipment are examples of things that /]
14 were not included, they were not defined as important to f 15 safety and they were not de' fined as safety related. They 16 didn't appear --- 17 JUDGE EDLES: So they get no level of quality 18 assurance protection; is that what you are arguing? 19 MS. CURRAN: Apparently not. If what applicants 20 is saying is true, that if something was important to ) 21 safety it was grouped in with safety related equipment, f 22 these components didn't appear in the list. I 23 JUDGE EDLES: No, I don't believe he said it was 24 grouped in with safety related. I thought he said that
/ 25 there was important to safety equipment which got some i
l ACE-FEDERAL REPORTERS, INC.
, 202 347-3700 Nationwide Coserage 800-336-6M6
_8341102~02 158
- marysimons11 m . level'of quality assurance protection, but not the same l '2 level as safety related. I thought that was what Mr. ,
lI 3 Dignan was saying. L
~ 4- MS.' CURRAN: I understood him to say that the l 5" applicants don't make any distinction: between important to l'
l 6' -safety and safety related, and.that's'a position they've i 7 taken throughout this proceeding. 8 Finally, with respect to the contention on the 9 cooling systems, I would just like to point out that our 10 . contention directly addressed the problem of fouling.~of
- 11. cooling systems. We didn't address the contention'to the 12 problems of clams in the tunnels. We talked about blockage 13 of cooling systems.
i O 14 t And also this issue of what was the ultimate-L 15 heat sink, I think we legitimately relied on'the PSAR which 16 stated that the ultimate heat sink for.all operating and 17 accident heat loads is normally the Atlantic Ocean. So
. 18 it's certainly reasonable for us to take that from the
- 19. FSAR, that Section 9.2.1.1.
20 And just one final point, and that is in 21 answering your question on the effect of our issues on low-22 power operation. I said I wasn't sure what the safety 23 significance of these issues is. I was responding on a 24 level thinking about could we get a stay of the low-power 25 license. ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6646
l l-8341 02 02 '159 l l marysimons 1 I agree totally with Mr. Backus, and I think ( 2 it's reflected in our briefs, that there really is no 3 distinction under the Atomic Energy Act or the regs.between 4 these two types of licenses. 5 JUDGE EDLES: I understand that argument,
'6 counsel.
7 MS. CURRAN: Okay. Thank you. 8 JUDGE EDLES: Thank you very much. 9 Let; me thank all counsel for your participation 10 chis morning. You've made it I-trust a wee bit easier for 11 us in our deliberations. I want to thank the reporter as 12 well. 13 And in addition to which I want to thank Mr. 14 Starr, who is the Clerk of the United States District 15 Court, who has been very cooperative and courteous during 16 our stay in New Hampshire. 17 The case now stands submitted. 18 Excuse, Mr. Dignan. 19 MR. DIGNAN: One minor matter, Your Honor. It 20 was stated by my learned friend, Mr. Backus, that this was 21 the first time the Appeal Board had appeared in New 22 Hampshire. Mr. Backus and I have both been in this case so 23 long that senility is setting in on both of us undoubtedly. 24 In fact, the Appeal Board did hear a full oral 25 argument in this case in New Hampshire during the ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336 4 46
- 8341 02.02 100 marysimons 1 construction permit proceeding,-and I don't want to leave
- O-- 2 the record that way because perhaps your missing' member 3 would be a miffed to hear that no one had remembered that.
4 (Laughter.) 5 JUDGE EDLES: Now we ddn't' ordinarily do this,
'6 but there is a gentleman that seems eager to ask a question i 7y from the audience. While I don't normally do'this, do you .
8 have just a question? 9 FROM THE AUDIENCE: No . - I wanted to give you 10 'some information. A 50 ohm cable and a 75 ohm. cable of 11 -which RG-58 and RG-59 are one and each, if you put those 12 'and-mix them up to the equipment, you're going.to have an 13 electrical impedance mismatch. iO 14 JUDGE EDLES: Okay. Thank you very much, and'I 15 guess you get the last word, sir. 16 (Laughter.) 17 The case stands submitted. 18 (Whereupon, at 1:00 o' clock p.m., the oral 19 . argument in the above-entitled matter concluded.)
=20 ******
21 22 23 24 25 l ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6646
CERTIFICATE OF OFFICIAL REPORTER o This is.'to certify that the attached proceedings before I-r 'the UNITED STATES NUCLEAR' REGULATORY COMMISSION in the matter of: NAME OP-PROCEEDING: PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al. (Seabrook Station, Units 1 and 2) DOCKET NO.: 50-443-OL-1; 50-444-OL-1 (Onsite Emergency Planning and Safety Issues) PLACE: CONCORD, NEW HAMPSHIRE DATE: FRIDAY, JULY 24, 1987 wers. held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission. (sigt) I4t.f ' (TYPED) -[ MARY C. SIMONS official Reporter ACE-FEDERAL REPORTERS, INC. Reporter's Affiliation O
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