ML20245C141
| ML20245C141 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 06/21/1989 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#389-8828 OLA, NUDOCS 8906260075 | |
| Download: ML20245C141 (188) | |
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UNITED STATES l
NUCLEAR REGULATORY COMMISSION t
ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
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Docket No.
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50-271-OLA VERMONT YANKEE NUCLEAR POWER CORPORATION )
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(Spent fuel pool (VERMONT YANKEE NUCLEAR POWER STATION)
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expansion)
I Pages:
431 through 616 Place:
Brattleboro, Vermont Date:
June 21, 1989 s
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HERITAGE REPORTING CORPORATION OficialReporten 1220 L Street, N.W., Suke 600 Washington, D.C. 20005 8906260075 890621 (202) 6M PDR ADOCK 05000271 T
PDC JL
431 UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
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Docket No.
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50-271-OLA VERMONT YANKEE NUCLEAR POWER CORPORATION
)
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(Spent fuel pool (VERMONT YANKEE NUCLEAR POWER STATION)
)
expansion) e Wednesday, June 21, 1989 Post Office and Courthouse Building Room 204 Main Street Brattleboro, Vermont The above-entitled matter came on for hearing, pursuant to notice, at 9:32 a.m.
BEFORE:
JUDGE CHARLES BECHHOEFER, Chairman Atomic Safety and Licensing Board j
U.S. Nuclear Regulatory Commission l
Washington, D.C.
20555 JUDGE GUSTAVE A.
LINENBERGER, Member Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 JUDGE JAMES CARPENTER, Member Atomic Safety and Licensing Board I
U.S. Nuclear Regulatory Commission Washington, D.C.
20555 6
Heritoge Reporting Corporation (202) 628-4888 m
432 APPEARANCES:
For the Apolicant:
R.
K.
GAD, III Ropes & Gray One International Place 225 Franklin Street Boston, MA 02110 For the Intervenor, NECNP:
DIANE CURRAN Harmon Curran ~& Tousley 2001 S Street,.N.W.
Suite 430 Washington, D.C.
20009 For the State of Vermont:
FIONA FARRELL Special' Assistant Attorney General WILLIAM SHERMAN State of VermQnt, Department of Public Service 120 State Street Montpelier, vermont 05602 For the Commonwealth of Massachusetts:
1 JOHN TRAFICONTE l
Assistant Attorney General
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Chief, Nuclear Safety Unit Commonwealth of Massachusetts One Ashburton Place, 19th Floor Boston, MA 02108 E2K the U.S.
Nuclear Reculatory Commission:
l PATRICIA JEHLE i
ANN P. HODGDON MORTON FAIRTILE FREDERICK STURZ Office of the General Counsel U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Heritage Reporting Corporation (202) 628-4888
433 1
E B.9 C E E D 1 H G E 2
(9:32 A.M.)
3 JUDGE BECHHOEFER:
Good morning.
This is an oral 1
4 argument in the proceeding concerning the proposed expansion J
5 of the spent fuel pool of the Vermont Yankee Nuclear Power 6
Plant.
This proceeding is being conducted by the Atomic i
7 Safety and Licensing Board of the Nuclear Regulatory 8
Commission, and I will introduce the members of the Board at f
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9 this stage.
10 On my left is Gus Linenberger, who is nuclear 11 engineer and physicist.
On my right is James Carpenter, an 12 environmental scientist.
My name is Charles Bechhoefer.
I 13 am the Chairman.
i 14 For the benefit of those in the audienco and the 15 reporter, I would like the parties or their representatives
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16 to identify themselves, starting on my left.
17 MS. FARRELL:
I'm Fiona Farrell, Special Assistant 18 Attorney General, State of Vermont.
1 19 MR. TRAFICONTE:
I'm John Traficonte.
I'm an 20 Assistant Attorney General representing the Commonwealth of 21 Massachusetts.
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22 MS. CURRAN:
Good morning.
My name is Diane j
i 23 Curran.
I represent the New England Coalition on Nuclear j
i 24 Pollution.
With me today is Elizabeth Singer, a law clerk 25 in our office, and Dr. Gordon Thompson.
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JUDGE BECHHOEFER:
Where is Dr.-Thompson?
2 MS. CURRAN:
Dr. Thompson is sitting behind me.
3 MS. HODGDON:'
.I'm Ann P. Hodgdon, counsel for the 4
NRC Staff.
With me today is Patricia Jehle, also counsel 5
for the NRC Staff.
And sitting at counsel table are Fritz 6
Sturz and Mort Fairtile.
Mr. Fairtile is the Project 7
Manager, Morton Fairtile.
8 MR. GAD:
May it please the Board, my name is 9
Robert Gad of the law firm' Ropes & Gray in Boston.
I appear 10 before Your Honors on behalf of Vermont Yankee Nuclear Power' 11 Corporation.
Sitting behind me in the jury box are all but i
12 one of the authors of the sworn written testimony and sworn 13 written rebuttal testimony filed by Vermont rankee on-14 Environmental Contention 3.
15 JUDGE BECKHOEFER:
Yesterday I received a call 16 from George Young, State of Vermont, and he asked for i
17 permission for Mr. Sherman to represent the state.
I said I 18 didn' t --
l 19 MS. FARRELL:
Judge Bechhoefer?
20 JUDGE BECKHOEFER:
Yes?
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21 MS. FARRELL:
If I may interrupt, George Young 22 asked that I stand in on his, behalf, j
23 JUDGE BECHHOEFER:
Oh, I see.
l 24 MS. FARRELL:
I should have clarified that.
Mr.
1 25 Sherman is with me.
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.s
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JUDGE BECHHOEFER:
Yes, I realize that.
I take it 2
you are an attorney.
3 MS. FARRELL:
I am an attorney.
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JUDGE BECHHOEFER:
Okay, then I don't have to 5
raise the problem.
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Okay, we are here today to take, I should say: a I
7 hard look an Environmental Contention 3, which deals with
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8 the discussion of alternatives, which is set forth in the k
9 Staff's environmental assessment.
Before we begin, we 10 announced that we would take limited appearance statements 1
l' if persons wished to make such statements.
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12 I think our notice was a little defective.
We l
13 said we would take them on Wednesday, the 22nd of June.
But i
14 be that as it may, let me inquire whether anyone is here who 1
i 15 wishes to make a statement.
If we are still here tomorrow, 16 I will make a similar offer.
17 (There was no response. )
18 JUDGE BECHHOEFER:
Not seeing any requests, we i
19 will proceed.
20 We have before us first a number of motions, 21 motions by the Staff and motions by the Applicant, to strike 22 the testimony submitted on behalf of NECNP.- As we read 23 those motions, they seek to strike that testimony in its 24 entirety.
A response was fielded yesterday.
May I inquire 25 whether all parties received NECNP's response, together with l
Heritage Reporting Corporation (202) 628-4888
436 1
an errata sheet which was distributed this morr'ng?
2 MS. JEHLE:
The NRC staff only minutes ago T
3 received the reply of June 19.
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4 JUDGE BECHHOEFER:
I see.
Have you had a chance
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5 to read it?
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MS. JEHLE:
No, we have not.
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.TUDGE BECHHOEFER:
Because you really should 8
before or while we get into the discussion of it.
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JUDGE LINENBERGER:
Mr. Gad, you've had it before 10 today?
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11 MR. GAD:
Your Honor, we received it yesterday, a 12 few minutes before I left the office?
I've had a chence to 13 look at it, and I'm prepared to go ahead on it.
14 MS. CURRAN:
I'd like to say I'm sorry the Staff 15 didn't get it Monday evening.
I thought we understood that 16 we were going to get in touch again and make sure it had 17 been received.
And when I didn't hear back from the NRC, I 18 assumed that that had gotten through.
I'm sorry that it 19 didn't.
20 JUDGE BECHHOEFER:
I see.
The Board got its 21 copies yesterday morning, so we have had a chance to look 22 through them.
23 MS. HODGDON:
We move to strike the reply of 24 June 19 on the grounds that we have not had an opportunity 25 to read any of it or reply to it.
The Board intended two Heritage Reporting Corporation (202) 628-4888 1
f n
437 1-rounds of' pleadings, and this isuthe third round.
-2 JUDGE BECHHOEFER:. Well, this:is in-response to 3
motions.
I don't think the Interveners. have had a chance to I
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respond.to either motion to strike.
5 MS.'HODGDON:
Right.
We're moving.
6 JUDGE BECHHOEFER:
So if they want to get up there' 7
and read the response into the record ---
8 MS. HODGDON:
Right.
We have no objections to' 9
their replying orally.
We just object to a written. reply.
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10 MS. CURRAN:
May I respond to that?
11-JUDGE BECHHOEFER:
Yes.
12 MS. CURRAN:
We're entitled to_ reply in writing to 13 that motion, and we replied inside of the time allotted-for 14 that.
We made every effort to'get it into the NRC Staff's 15.
hands before they left for vermont.
And they didn't contact i
l 16-us as 5:00, as we agreed, to say whether they had gotten it l
17 or not.
I did make a very hard effort to get it to them, l
18 and it's timely filed.
19 MS. HODGDON:
We ask that'they read it into the 20 record today.
21 (Pause for Judges to confer.
l 22 MS. HODGDON:
Judg,e Bechhoefer?
23 JUDGE BECHHOEFER:
Yes?
l 24 MS. HODGDON:
A similar situation arose at the-25 last oral argument on the other contentions.
NECNP filed a
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1 pleading which we did not receive until we were at the oral 2
argument, and we were disadvantaged then.
We went ahead and 3
argued, but we would prefer not to be put into that 4
disadvantaged position again, and we wouldn't like to make a 5
habit of accepting pleadings which we have not been able to 6
consider.
7 JUDGE BECHHOEFER:
Yes.
Of course, our problem is 8
we have to decide the motion before we go ahead with the 9
rest of the oral argument.
10 MS. HODGDON:
We're just refreshing your 11 recollection as to the incidents at the last oral argument.
12 JUDGE BECHHOEFER:
Yes.
13 MS. CURRAN:
Judge Bechhoefer, we consider that 14 we'd be seriously disadvantaged if we didn't have the 15 opportunity to file a written reply to a written motion to f
16 dismiss.
And that's what we did.
17 Would it help if we broke for half an hour and let 18 the Staff read the motion?
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19 JUDGE BECRHOEFER:
Well, this is exactly what we j
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20 were thinking about.
It won't help the Staff read some of l
1 21 the cases if they haven't read them.
But at least one of 22 them is one I'm interested in because I did read that.
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23 don't know if there is a library here in the building or 24 not.
25 MS. CURRAN:
We have some if not all of the cases Heritage Reporting Corporation (202) 628-4888
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here, which might help.
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JUDGE BECHHOEFER:
Well, the.1986 7th Circuit case 3
is the one I was interested in, which is cited, among other i
4 places, on page 9 and several other places.
It's cited.the l
5 first time in Footnote 13.
6.
MS. HODGDON:
- Defendant Avedon?
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JUDGE BECHHOEFER:
Yes.
At least I hadn't read l
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that case prior to yesterday.
I think the other cases have 9
all been cited previously in this_ proceeding.
10 MS. CURRAN:
We have a copy of that case.
We'd be 11 glad to make one for the NRC Staff, i
1 12 (Pause for Judges to confer.)
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13 JUDGE BECHHOEFER:
I think the Board at the moment j
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14 will go ahead with Mr. Gad's argument on his motion.
Then 15 we will break for a while and let the Staff have a chance to 16 read the document.
Before we hear from the Staff -- On the 17 motion to strike we would hear from the Applicant and Staff 18 first, and the NECNP and anybody else.
Well, I suppose 19 anybody who is supporting the motion should be heard first.
l 20 Anyone opposing it, then, would be heard after that.
21 So I think we'll hear from Mr. Gad first.
After 22 that we will take a break an,d let the Staff look at the 23 document.
I think that's more efficient than having the 24 whole document read into the record; I think that would be 25 somewhat confusing.
I Heritage Reporting Corporation (202) 628-4888 i
440 1
I do believe that NECNP has a right to respond to 2
the motion, so I think we will accept the document.
But we 3
will wait for the Staff's presentation until after we've 4
taken our break.
We might make the break slightly longer 5
than usual.
6 Mr. Gad.
7 MR. GAD:
Thank you, Judge Bechhoefer.
8 Just so no one misinterprets my uncharacteristic 9
silence on that procedure, I've not read the case in 10 question either.
When I got the NECNP response, I had about 11 15 minutes to leave in order to make it up here in time.
I 12 read it while dodging speed traps.
But, you will see in a 13 moment, I'm satisfied that whatever the 7th Circuit said, 14 there are NRC precedents directly on point that go a 15 different way.
Therefore, I don't really care.
16 Nonetheless, and with the Board's leave, I'm going to read 17 this decision when we take the break.
18 JUDGE BECNHOEFER:
Yes, you have our leave to do 19 that and to add any comments after we resume then.
20 MR. GAD:
Thank you, Your Honor.
21 It seems to me that the sum of the papers that 22 have been filed here raise six issues.
I tend to divide 23 three of them as going to the merits and three of them as 24 going to the motion to strike.
I'm prepared to admit that 25 Heritage Reporting Corporation (202) 628-4888 O-
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441
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that division is just a tad arbitrary.
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The three issues that the motion to strike raises, 3
as opposed to the merits, are the question of the subject 1
4 matter of Mr. Thompson's direct testimony --
And I say 5
direct because that's what the motion was filed against, and 6
a fair measure of the response of NECNP then refers to the 7
Thompson rebuttal testimony.
But at least procedurally 1
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8 we're in the position of somebody coming in and offering the l
9 Thompson direct and saying:
Here's this piece of testimony; l
10 I ask the Board to receive it into evidence.
The motion to 11 strike says you should not receive it into evidence because 12 the testimony itself does not demonstrate its admissibility, 13 and the fact that there might be something in the rebuttal 14 that adds a subject not discussed in the direct.
There is 15 very little to save the direct from a motion to strike that 1
16 is otherwise proper.
In any event, Issue 1 is:
Is the l
17 subject matter of the Thompson direct within the scope of 1
18 Environmental Contention No. 3?
19 JUDGE BECHHOEFER:
Yes.
By the way, when you get 20 around to arguing that, I hope you focus a little bit on the 21 top of page 10.
22 MR. GAD:
Of?
23 JUDGE BECHHOEFER:
Of the direct testimony, plus 24 Exhibit 14.
With respect to that, I'm not discussing 25 competence, but scope.
Heritage Reporting Corporation l
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442 1
MR. GAD:
Sorry?
2 JUDGE BECHHOEFER:
I said I'm not'at the moment.
3 discussing competence, I'm discussing scope.
L 4
MR. GAD:
I understand.
5 JUDGE BECHHOEFER:: At the top of page 10,.at 6
least, under Argument VII.and the reference to Exhibit 14.
7 It does seem.to reate a slightly different1 focus than some j
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8 of the other-parts of the argument..
So I hope.you will 9
comment on that.
That is in the response, as well.
10 MR. GAD:
Actually', when I get to it,-Your. Honor, 11 please remind me, because I think I perceive'what the. Board.
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12 has in mind.
I think the Board may be following an 13 impression that's. falsely created by the top of page 14.
I l
14 hope I remember.
15 Just to lay out the issues, first issue:
Is the 16 Thompson direct subject matter within the scope of 17 Environmental Contention No. 3?
18 The second issue is also a subject matter issue, 19 and the question is:
Is Mr. Thompson's complaint even 20 related to the proposed operating license amendment?
21 Issue 3 relates to the qualifications of the 22 witness and competence.
And I stress that we're talking 23 competence in the legal sense, not in the lay sense, the 24 competence of the testimony that is offered.
25 The first issue, the subject matter of the Heritage Reporting Corporation (202) 628-4888 m:
443 1
Thompson direct testimony is limited to the witness's 2
perception of the significance of potential beyond-design-3 basis accidents and the witness's perception that one of 4
these accidents now raises the possibility of a zirconium 5
fire in the pool in the event of a loss of water in the 6
pool.
The issue is whether or not the subject of beyond-7 design-basis accidents is within the scope of Environmental 8
Contention 3 the way the Board admitted it in October of 9
1988.
We're not talking about Environmental Contention 1, 10 which isn't on the agenda for today.
We're also not talking 11 about the second half of Environmental Contention 3, if you 12 will, the accident component of Environmental Contention 3, 13 which this Board explicitly excluded in October, then 14 included in February but stayed that inclusion.
15 There are two convenient tests that might be 16 applied to try to answer this question.
They both lead to a 17 negativo conclusion.
First we might ask ourselves whether 18 anything in the Thompson direct couldn't also be offered in 19 support of Environmental Contention 1, or, indeed, whether 20 anything in the Thompson direct couldn't also be offered in 21 support of the excluded portion -- if you will, the accident
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22 portion -- of Environmental Contention 3, the part thot is 23 not before us this morning.
The answer is that the Thompson 24 testimony is exactly what NECNP would offer if we were here 25 this morning on Environmental Contention 1.
Heritage Reporting Corporation (202) 628-4888
444 1
JUDGE BECHHOEFER:
Is that true-of the material on W
2 page 10 to which I referred?
f 1
3 MR. GAD:
Absolutely,'because what it talks --
1 4
JUDGE BECHHOEFER:
Well,. Exhibit 14,.'for instance.
H s
5 MR. GAD:
What it talks about is alternative, 6
safer modes.
This is not alternatives for avoiding ordinary 7
environmental consequences, such as what this Board intended j
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to be the scope of Environmental Contention 3.
This is not 9
alternatives that avoid the commitment of a scarce resource l
10 that we ought'to use someplace else.
The top of page 10, i
11 point No. 7 is simply saying:
Are there ways of avoiding 12 the accident risk that I told you about in pages-1 through 13 97 So, you know, it's nice language, it sort of looks-like 14 it fits, but you have to read it in context.
15 JUDGE BECHHOEFER:
How about Exhibit 147 16 MR. GAD:
Well, you're going to have to help me on 17 it, because we got the exhibits separate from the testimony.
)
18 JUDGE BECHHOEFER:
I'm talking about subject 19 matter now..
20 MR. GAD:
Understood.
21 JUDGE BECHHOEFER:
Not validity or anything else.
22 MR. GAD:
All right.
You could make an argument 23 that if Exhibit 14 is used for anything else by Mr. Thompson 24 than what it was used for, that it transcends accident 25 analysis.
Let me diasect that a little bit.
If you went Heritage Reporting Corporation (202) 628-4888 b
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1 back to what this Board intended to be in Environmental 2
Contention No. 3, then one of the issues you might get to is 3
comparative costs.
Now, we don't get to comparative costs l
4 until we find that there is an environmental preferability.
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5 of casks over_ racks, apart from accidents.
And since NECNP 6
concedes that apart from accidents they are'each 7
environmentally' benign, they are therefore environmentally 8
equal.
You don't ever get to costs.
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l 9
But, yes, if this has some other function as used 10 by Dr. Thompson, then you might make an argument to strike i
11 all but Exhibit 14, which isn't doing much because Exhibit' 12 14 is nothing but a reprint of one of the DOE reports.
But 13-the fact of the-matter is that what Dr. Thompson uses it for 14 is to say:
Yes, there are ways of avoiding my accident 15 claim.
It all goes back te his claim that this amendment 16 creates -- and I quote, " creates" -- the possibility of the l
17 zirconi
.3 fire.
Now, he happens to be wrong about that.
18 But putting that aside, that is not the subject matter that 19 this Board admitted in October as Environmental Contention 20 No. 3.
21 Indeed, the second of the tests that we might 22 apply for judging the Thomps.on testimony is to compare it to 23 the so-called " basis" that was offered by NECNP, the i
24 accident piece of it that was offered by NECNP, in support 25 of Environmental Contention 3 and explicitly excluded by Heritage Reporting Corporation (202) 628-4888
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446-l' this Board from LBP-86-26.
So if we take this' excluded.
A 2'
basis in our left hand-and we take the Thompson direct in i
3 our right hand and compare them, what you' find is that the j
4 Thompson direct' addresses that basis.- Indeed, it actually l
5 addresses a few things that weren't in the' basis;'that'is to 6
say, more accidents scenarios.-
The basis was limited to one 7
scenario, the Thompson testimony now expands this to four
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accident scenarios.
But'the. point'is, the Board excluded 9
the proper basis that said there is an accident concern 10 here, and'that's why Environmental Contention 3 should come 11 in.
And Your Honor said Environmental. Contention 3 comes in 12 exclusive of its accident component.
The Thompson direct 13 testimony only addresses the accident component,.if you 14 will, of. Environmental Contention No.
3.
15 Now, in October of 1988 when this Board, after 16 excluding that basis, admitted the remainder of 17 Environmental Contention No. 3, the Board must have had i
18 something else in mind for what we'd be talking about this l
19 morning under the rubric of this contention.
And I 20 respectfully submit that what the Board had in mind for 21 litigation are issues like, number one, does this reracking I
22 amendment involve the consumption of some finite resource 23 for which there is a better use, or at least for which 1
24 there is conflict over the issue of whether or not there is 1
25 a better use?
Stated differently, are we taking a high-Heritage Reporting Corporation (202) 628-4888 o
447 1
order resource and using-it for a low-order job when a low-1 2
order resource would do the same job?
.l 3
This Board had in mind. issues like, could the 4
object of the proposed action, the reracking, in fact be 5
. accomplished by the touted dry cask alternative?
And that 6
means, could you have done, could you have conceived, i
7 engineered, applied for, secured permission to implement
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8 from the NRC, finalized your design, performed your
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9 construction, and offloaded fuel into the dry cask
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10 alternative by 1989, today, 1990, in order to avoid the loss 11 of full core reject capability in the spent fuel pool and j
12 ultimately to avoid the necessity of shutting the reactor 13 down.
That's number two.
1 14 The third issue this Board had in mind when it l
15 admitted the contention was whether or not apart from 16 accident considerations -- this Board said apart from 17 accident considerations, are there environmental impacts of i
18 the reracking that are significant enough to warrant taking 19 cognizance of and that a e avoided by the dry casks?
If so, 20 we'll attempt to ident ify and quantify them.
And if so --
l 21 and, Judge Bechhoefer, only if so -- then we will proceed to 22 the question of whether or not this environmental 23 preferability comes at a cost that outweighs it.
24 Now, these are the issues, if you will, the 25 regular Environmental Contention 3 issues, by which I mean 1
1 1
Heritage Reporting Corporation (202) 628-4888 a
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1 non-accident issues.
These'are the' issues:the Board had in 2
mind, admitted-in October of 1988'and we were all under the-1 3
impression that-NFUUP.was-contending.
The fact of the
- j 4
matter is, in ths Ebompson direct testimony there isn't a 5-single word that goesito any one of those. issues.
The 6
Thompson direct testimony does not l'nvolve resource 7-conflict; it doesn't say anything about:it.
The Thompson 8
direct testimony doesn't say word one about whether or not i
9 the dry casks could in fact be' implemented in time.
And the 10 Thompson direct testimony does not address the' issue of l
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11 non-accident, comparative, environmental; impacts.
We know 12 today that NECNP now concedes that issue.
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13 Now, as I have written, it would be nice for 14
. Vermont Yankee -- and it would have been nice for all of the-15 people who have to pay the costs of this proceeding in their j
16 electric bills and the costs of doing the analyses that it 17 turns out are no longer challenged - 'if we had known in
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j 18 advance that NECNP wasn't going to be contesting those 19 issues.
But the long and the short of it is that either 20 NECNP doesn't understand that this Board excluded this 21 zirconium fire accident assertion when it admitted 22 Environmental Contention 3, or, frankly, that NECNP-isn't i
23 prepared to accept that ruling.. But either way, the l
24 Thompson testimony, which has no function other than to 25 support that accident assertion, is not within the scope of Heritage Reporting Corporation (202) 628-4888 w
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Environmental Contention 3 and, therefore, should be j
2 stricken.
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MR. GAD:
At th6J point, let me add'a footnote, 2
just so the point is not' entirely lost.
3 In the rebuttal testimony, not the direct, Mr.
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4 Thompson essayed an argument to the effect that, " Wait a l
5 minute.
One.of my accident scenarios is not beyond design j
6 basis."
This was the cask drop.
Mr. Thompson erred on i
7 that, because he had not familiarized himself with the 1
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8 Vermont Yankee design basis.
Subsequent to filing the 9
rebuttal, NECNP -- and when we pointed out what the' Vermont 10 Yankee design was -- NECNP has checked and confirmed and now 11 concedes in this response to the motion to strike that the 12 cask drop accident plan is a beyond-design-basis plan at l
13 Vermont Yankee.
14 JUDGE BECHHOEFER:
Well, I might say we had some 15 questions based on this large Lawrence Livermore report, 16 which is relied on in the basis for a source -- some of the 17 statements -- whether or not that made it clear that what 18 was involved was a'beyond design basis, from the report.
We 19 have a few questions we can ask the Interveners on that.
I
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20 have the report right here.
21 MR. GAD:
Well, and I have half an hour's worth of 22 argument that, mercifully, I don't have to give because the 23 concession's been made.
I just want to point out, so that 24 nobody is on a different frequency, NECNP no longer contends 25 any aspect of the Thompson theory is within design basis, i
Heritage Reporting Corporation (202) 628-4888 t
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1 So issue nunber 1, Thompson testimony,. subject 2
matter, beyond design basis:
Is that-within the~ scope of 3-environmental contention ~3?'
I submit to you that it is not.
4 It necessarily follows that the answer to the'first question
~
5 propounded by this Board in its memorandum of.May 25 is that 6
the Thompson direct testimony is limited'to beyond-design-
~ ' I 7
basis accident' concerns, and that makes it inadmissible 8
under contention 3.
9 Second' issue.
The second issue:is whether or'not' 10
-- and with the Board's permission I'm going to use'the 1
11 phrase " Thompson theory. as a ' shorthand for a ' lot' of words 12 that it's hard to' repeat time after time, and it.just makes l
13 the transcript-longer --
The second issue is whether not 14 the Thompson theory even relates to the proposed' operating-15 license amendment, because it turns out that Mr. Thompson's 16 complaint has less,~if anything, to do with whether'there's 17 2000 or 2870 spent fuel assemblies in the pool, particularly 18 bearing in mind and' remembering, when you' add assemblies to 19 the pool, it's always the oldest assemblies that are added i
20
-- his complaint has less to do with that than what'ta j
21 contends to be the switch from low-density racks to high-
~
22 density racks.
Which, per t,he Thompson theory, " creates" --
23 and that's.a quote, a_ quote from Mr. Thompson, a quote from 24 NECNP -- " creates," as it were, for the first time, this 25 supposed risk.
Heritage Reporting Corporation E
(202) 628-4888
~
l 452 1
We observe'that in the' Thompson direct, amongst j
2 other things, Mr. Thompson makes no effort to quantify the 3
delta between the Thompson theory with 2870'in the pool and.
)
l 4
the Thompson theory with 2000 in the pool.
He refers to the i
5 L'awrence Livermore study or-consequences.
And if you look 6
at the Lawrence Livermore study, the Lawrence Livermore 7
study had two conclusions.
The first conclusion is that, 8
even if his theory is right and even'if it happens, there i
l 9
will not be short-term health effects to the public.
And 3
10 the second conclusion was that they did a long-term impact 11 analysis that turned out to be essentially insensitive to 12 what your spent fuel pool in the facility was.
But the j
1 13 point I'm making is that, at least in part, the Thompson j
i 14 theory is about the fact that we are switching from the low-j I
15 density racks to high-density racks and thus creating this l
16 risk for the first time.
4 1
17 The. interesting thing is that, after reading this
]
1 18 thesis and getting near the back of it, we discover that Mr.
j 19 Thompson is not prepared to tell us, because he doesn't 20 know, whether or not this scenario he's just outlined for us 21 is in fact happening at Vermont Yankee.
That prompted this 22 Board to ask the very question it did in the third sentence 23 of the second question, second numbered paragraph, in the 24 Board's memorandum of May 25.
Specifically, the Board 25 wanted to know whether or not this switch from low-density Heritage Reporting Corporation (202) 628-4888
______ __ _ _ m
i 453 i
~1 racks to high-density racks was within the scope of this
)
i 2
proposed amendment.
3 Mr. Thompson was, of course, unable to answer the I
4 question, because he has not studied Vermont Yankee.
i 5
however, he did concede the probability, which is almost 6
implicit in the 2000 spent fuel assembly inventory l
7 previously proved, that the existing racks were high-density 1
8 racks.
Unfortunately, I've got a quote here from testimony j
9 that I forgot to write down what page it is, but what Dr.
1 10 Thorpson says is, "Whilst I'm not in possession of the l
11 design of the original. racks or the racks approved in 1977, l
12 I believe - " -- let me truncate here:
that the original 13 racks were low-density racks, going back to the quote, and I 14 quote, "On the other hand, the re ks designed to hold 2000 15 spent fuel assemblies were probably of a closed design and 16 probably had essentially the same safety disadvantages as 17 the closed racks described in my testimony."
18 Now, with the Board's question in mind and 19 anticipating Mr. Thompson's inability to answer it, since he 20 had revealed to us that he had not studied Vermont Yankee, 21 in the rebuttal testimony Vermont Yankee provided a detailed 22 e-alysis, based on personal knowledge of the design and 23 person knowledge of the racks ah initi2 and the racks in 24 1977.
That analysis confirmed, indeed, that the switch that 25 is the centerpiece of the Thompson theory, occurre1 in 1977, Heritage Reporting Corporation (202) 628-4888
~
1 I
454 j
l 1
12 years ago, and is not part of this amendment.
j j
2 That's issue 2, whether the Thompson theory is i
i l
3 even related to the amendment.
Issue one is whether it's l
i 4
related to contention 3.
5 The third issue that I submit that is raised by i
6 the motion to strike in fact comprises a couple of sub-I 7
questions, but in essence:
Is the witness qualified, and l
~
8 what does he say?
Now, let us understand two propositions, j
9
" Qualified" does not mean, "Are you a legitimate scientist l
10 in the general sense?"
It means, "whether or not you had 11 demonstrated in your testimony sufficient education, 12 training, and preparation to make the statements that you 13 make in the particular case."
Dr. Thompson, for the reasons 14 that we set forth in the memorandum, does not.
It may very 15 well be that a degree in applied mathematics is necessary to 16 the kind of testimony he would like to offer, but it is not 17 sufficient.
And if you simply tell us, "I have that 18 degree," that does not make the man qualified to express the 19 opinions that the testimony would like to express.
Stated 20 in a different way:
the set of people qualified to express 21 those opinions is smaller than the set of people who have 22 ever been awarded a degree in applied mathematics.
23 Therefore, you have to go further.
He doesn't.
24 We're told that the man has experience in 25 technical analysis.
So do I, but I don't know anything Heritage Reporting Corporation (202) 628-4888 m
455 1
about what's inside the nuclear power' plant.
And we're told 2
that he gave one-piece of testimony, which didn't do the 3
job, anyhow.
4
- Understand something:
Dr.: Thompson may or may not 5'
be qualified.
The issue is whether or not the Thompson 6
direct testimony establishes his qualifications.. I j
l 7
respectfully submit it does not.
i
~
8 JUDGE BECHHOEFER:
Are you including also the-
.l 9
resume which was transmitted to us a little bit late?
June l
l 10 9,
it was transmitted to us, presumably _to you.
j 11 MR. GAD:
I am not, Your_ Honor, and for this I
12 reason --
)
13 JUDGE BECHHOEFER:
It's a fairly detailed resume, 14 MR. GAD:
I'm aware of that.
But it seems to me 15 that it's not on the table for two reasons, for the 16 combination of two reasons, not the two independently.
17 Point A, the resume was not supplied with the testimony, and 18 it wasn't even supplied when follow-up.
And necessarily it 19 was not before us when we drafted the motion to strike.
20 Point B, in the response to the motion to strike, NECNP l
21 makes no reference to the resume.
Now, if they don't think l
22 the resume saves the testimony, I'm not about to get up 23 there and do a lot of work to read it.
24 JUDGE BECHHOEFER:
I thought they did make that-l 25 up.
1 Heritage Reporting Corporation j
(202) 628-4888 l
456 1
MR. GAD:
Then I missed it.
2 JUDGE LINENBERGER:
I LM e a slightly different 3
question here to ask. It seems to me there is just a 4
possibility -- and I should like your thinking on the matter 5
-- that your most recent line of comments may be directed 6
toward a higher standard of qualification than this kind of 7
proceeding, subpart k type proceeding, demands, vis-a-vis a
~
8 full-blown, formal, legislative hearing.
9 MR. GAD:
That's actually a very apt question, 10 Your Honor, and if you'll permit me to restate it:
Is the 11 requirement of giving a subpart k affidavit the same as the 12 requirement for coming into court in a hearing and taking 13 the witness stand and offering an opinion.
I'd like to tell 14 you I have 12 cases that said it is, but since this is the 15 first case there ever was, I obviously don't have 12 cases.
16 I don't even have one.
17 (Laughter.)
18 MR. GAD:
Nonetheless, I think if you think about 19 it the answer to the question has to be that the standards 20 are the same, and the reasons for that sort out this way:
~
21 Number one, what subpart k talks about is sworn, written 22 testimony.
The notion that we're going to have --
I mean, 23 testimony by itself breaks down into two kinds of testimony, 24 fact testimony and opinion testimony.
Fact testimony, the 25 qualification are whether or not you saw the thing you're i
Heritage Reporting Corporation (202) 628-4888 L
1 457' l
i 1
about to testify.
Opinion testimony has always been whether-I 2
or not you have the training,-experience, and preparation'to l
3 offer the opinion you're about to offer.
So the. moment-they 4
talked about sworn, written testimony, I think you start by l
5 at least gravitating towards an answer that.says it's the l
1 6
same.
7 The second. proposition is that subpart k is most
~
8 often referred to as in institutionalization of the summary l
o 9
disposition procedure, 10 CFR 2.749, or the summary judgment j
i 10 procedure used in courts under. Fed R Civ P 56.-
And we'do 1
1 11 know that, in each of those, an affidavit gets stricken if 12 the fellow who made the affidavit, based on what he 1
13 testifies in the affidavit, couldn't get on a witness stand l
14 in a hearing.
l 15 The third proposition that leads in that direction j
i 16 is the function of subpart k.
Subpart k is a screen.
And
)
17 what we're doing is subpart k is to say, "Okay, everybody, 18 we're going to convert this from draw poker to stud poker, 19 turn the cards over, and we'll see whether or not we really 20 need a showdown in the hearing room.."
21 Now, if the testimony that you' re going to use in 22 the hearing room is different from the testimony that you 23 put up as your case in subpart k, then you're never going to 24 perform the function of that screen.
We, in fact, haven't 25 turned our cards up.
So, for all three reasons --
I think Heritage Reporting Corporation I
(202) 628-4888
458 1
it's a great questions, and I'd love it if someday the 2
Appeal Board wrote a lengthy dissertation so that I don't 3
have to here.
But I think that, if you think about it, the 4
answer must be that the qualification and competence
'5 standard for-a subpart k is identical to the qualification 6
and competence standard for a. witness in that box there.
7 JUDGE BECHHOEFER:
Mr. Gad, it was footnote 20 i
~
l 8
that I was referring to of the most recent filing.
l 9
MR. GAD:
This is the one that I was reading while 10 driving on the Mass Pike, Your Honor.
l l
11 (Pause. )
l 12 MR. GAD:
And I guess I don't see the reference to 13 the Thompson resume.
14 JUDGE BECHHOEFER:
Well, the resume was submitted l
15 on the 9th, and footnote 20 talks about the qualifications 16 set forth in the resume.
17 MR. GAD:
Right.
18 But, you see, the footnote 20 -- and I do remember 19 reading this as I was going by one of the rest areas -- that 20 doesn't tell me anything that isn't in the Thompson direct.
21 But, you see, you could take everything that is in footnote 22 20 -- let us say, for purpose of testing the proposition, 23 that we conceded its truth, arcuando.
Then ask yourself 24 this question:
Is every guy in the world who has a degree 25 in mathematics, a degree in physics, a degree in mechanical Heritage Reporting Corporation (202) 628-4888 l
t l
^
459-1 engineering, and a Ph.D. in appl. math, is every guy who has 2
that qualified'to testify.about these things? 1And the 3
answer is no.
4 JUDGE BECHHOEFER:
I'm.not sure.
It may affect 5
the weight rather than the admissibility.
6 MR. GAD:
Okay.
7 JUDGE BECHHOEFER:
In which case it gets handled' 8
in a different way.
9' MR. GAD:
Simply because, Your Honor, a person 10 could have all of those degrees and never have considered 11 any issue about a spent fuel pool, never seen a spent' fuel 12 pool, and spent his entire illustrious career doing other 13 things, the answer has to be that, if you walk up to the 14 stand, take the oath,.and say, "My qualification areLI got' 15 those four degrees, and now I'm going to talk about the
.i 16 Vermont Yankee spent fuel pool," your ruling has to be, "No, 17 no, Mr. Witness.
I haven't heard enough."
l 18 Then, you see, you could go to these other things, 1
l 19 and each of the things that the man has testified.to in here 20 could be equally true of a fellow who, in fact, knew nothing 21 about this issue, because he'd spent his time doing other 22 things.
My point is very simple.
My point is not that 23 these are not impressive credentials.
My point is not that 24 they might not be unnecessary, or at least very helpful, in i
25 reliable opinion testimony in this agency.
My point is Heritage Reporting Corporation (202) 628-4888 i.
D
460 1
that, standing alone, it won't do it.
Because they are not 2
the same as saying that you must havo the expertise in this 3
particular area.
4 The proof of the pudding, a little bit, Your 5
Honors, is in the substance of what Dr. Thompson says, which 6
is the second half of this issue.
He doesn't give concrete 7
testimony.
He doesn't say, "At Vermont Yankee, x will 8
happen."
No, no.
He doesn't say, "The Vermont Yankee fuel 9
racks are designed x and therefore have this problem."
10 Because he didn't know when he wrote this testimony.
Dr.
11 Thompson had no idea, when the direct was filed, what the 12 inlet orifice size is in the base plate of these racks, or 13 how it compares to the 1977 racks or'how it. compares to the 14 1972 racks, or what the center-to-center spacing was, 15 whether or not the spent fuel assemblies are installed in 16 racks with the channels in place, and all of the other 17 issues that are in Mr. Burns's testimony in the rebuttal, 18 which is what you need to know, to know whether or not any 19 of this has any application to Vermont Yankee or this 20 amendment.
21 Now, Dr. Thompson is candid enough to tell you 22 that he doesn't know these things, and therefore we have 23 testimony in terms of, "It may," "It's possible."
- Well, 24 that doesn't do it.
Ask yourself this:
If we were in a 25 hearing -- and you see, Judge Linenberger, that is the test Heritage Reporting Corporation (202) 628-4888
' ~
a 461 j
~i 1
-- and Dr. Thompson took the stand,. and he recited this 2
testimony like we might recite other things this morning, he
~
3 read from it, could I get up there and cross-examine him 4
about the design or the configuration of the. Vermont Yankee 5
spent fuel pool?
No.-
He can't answer that question.
Can I 6
-cross-examine him about --
7 JUDGE BECHHOEFER:
Doesn't.that affect-the weight 8
of what.we would be looking at, then?
1 l
9 MR. GAD:
No,.Your Honor.
I think it.affects 10 admissibility.
It may affect both.
But, in the first 11 instance, if the man can't answer the questions, then he 12 can't testify about the subject.
13 Well, put it this way:
If you say to me that i
14 there is no limit on qualification -- it just affects the
]
1 15 weight -- well, then we go down the street and get 20 guys
]
16 who've never heard of Vermont Yankee, let him testify, you i
17 can't strike any of the testimony; you just say, "I'll take I
18 it in for what's it~s weight is.
You reduce it to very low.
19 If I get enough people, I still outweigh anybody else.
]
20 There is a threshold.
21 JUDGE BECKHOEFER:
But isn't there somewhere l
l 22 between those two?
If somebody had some knowledge of some
)
1 23 aspects of what he's testifying about but can't answer all 24 the questions he's asked, that means that the board or court 25 or whoever it may be may not be able to give very much Heritage Reporting Corporation (202) 628-4888 l
l l
l
'462 1
weight to that, to the ultimate conclusion.
2 MR. GAD:
I quickly concede there is a scalar 3
component after you get above a pass-fail gate, but there is 4
a minimum.
And if we ignore the minimum, if we say, as the 5
walls in this' room sometimes echo, "Well, I'll take it for 6
what it's worth (including potentially zero)," then all you 7
do is force people to come up with responsive testimony --
8 exactly what happened here -- when there is no need to 9
respond to it.
The duration of proceedings, the cost of 10 proceedings are magnified.
That's exactly what the minimum 11 test was designed to prevent.
If you haven't got the price 12 of admission, you don't come in.
13 I couldn't cross-examine the man on those 14 subjects.
I couldn't cross-examine him about-the 15 application of his theory to Vermont Yankee.
I couldn't 16 cross-examine him about the probability of any of the 17 scenarios at Vermont Yankee.
And the list goes on.
18 JUDGE BECHHOEFER:
Well, you could cross-examine.
19 You might not get any answers.
You may have to, so you'd 20 better not say you can't.
21 (Laughter.)
22 MR. GAD:
Then we have, Your Honor, different 23 definition of cross-examination.
24 The fact that the fellow could not, from what 25 appears in his direct testimony, answer any of those Heritage Reporting Corporation (202) 628-4888
__________x
463 1
questions, renders the testimony inadmissible, 2
For those three reasons -- I've been up longer 3
than I should have -- I respectfully submit that the motion 4
to strike ought to be allowed.
5 JUDGE BECHHOEFER:
I don't know if you consider s
6 this more the merits question, but your motion to strike 7
also asks that the contention be dismissed.
First I'd like 8
to ask, assuming, of course, you're referring only to the 9
part that doesn't include the accident basis, referring to 10 the fueling, we couldn't and wouldn't dismiss that.
11 MR. GAD:
I think that's --
Well, I see.
I gave 12 that serious thought, Your Honor, but I agree with it.
The 13 fact of the matter is, since the only thing before us on the 14 table is the non-accident portion of contention 3, that's 15 what I'm asking to be dismissed.
I'm asking it to be 16 dismissed because, if you strike the Thompson direct, then 17 the contention is wholly unsupported.
18 JUDdB BECHHOEFER:
Well, I'm not so sure.
What 19 I'm wondering is whether, through their briefs, NECNP hasn't 20 established that, as a matter of law, the environmental 21 assessment, insofar as it deals with alternatives, is 22 insufficient.
That would not necessarily be a matter of 23 testimony.
If it's a matter of law, the Staff would not be 24 taking the so-called hard look at the alternatives which at 25 least some case law says it should, even when no significant Heritage Reporting Corporation (202) 628-4888
N 464 1
impact is found for the proposal under consideration.
If 2
that be the extent of the law, then maybe the contention l
I 3
shouldn't be dismissed --
4 MR. GAD:
You'ro asking me a very hard question.
5 JUDGE BECHHOEFER:
-- even though some or all of 6
the testimony of Dr. Thompson were stricken.
4 7
MR. GAD:
The questions are tough this morning.
~
8 If I understand it, what you're saying to me is, 9
it is at least theoretically possible, is it not, that a l
10 contention proponent could survive subpart k without any l
1 11 affidtvits?
Answer:
yes.
In theory, not in this case.
l 12 And the reasons are as follows, i
13 In the first instance, the Staff doesn't have to 14 look at any alternatives unless you get over the 102 (2) (E) 15 hurdle.
16 JUDGE BECHHOEFER:
Right.
Well, I think, almost 17 as a matter of law tha?. na. gr e
18 MR. GAD:
They were on for another fight, Your 19 Honor, because --
20 JUDGE BECHHOEFER:
Let me tell you this.
I'll 21 read to you from the environmental assessment.
This was 22 raised in the initial portion of the contention that came 23 in.
Let me find it.
24 (Pause.)
25 JUDGE BECHHOEFER:
It says, in the last sentence Heritage Reporting Corporation (202) 628-4888
~
465 i
1 of paragraph numbered 5, "Furthermore, the expansion 2
capacity of the existing pool is a resource which should be l
3 used."
Is there no dispute about that?
I think there's 1
4 been a dispute about that from day.1.
l 1
5 MR. GAD:
There is no 102 (2) (E) dispute about 6
that.
That's correct.
1 7
JUDGE BECHHOEFER:
I'm not sure I don't disagree 8
with that.
The Staff has defined what a resource is.
l
)
9 MR. GAD:
Absolutely not.
)
10 JUDGE BECHHOEFER:
It's part of the environmental i
11 assessment.
It's there, and in so many words the Staff has l
12 said, "That's a resource that shouldn't wasted," and from 13 day 1 NECNP and several other groups have said, " Yeah, that 14 is a resource that shouldn't be used that way."
15 MR. GAD:
Let's start with the proposition that 16 this lighter in my hand is a resource.
17 JUDGE BECHHOEFER:
By the way, that argument does 18 appear in the latest response, but it's been in my mind for 19 a long time.
1 20 MR. GAD:
I understand, and I regarded this as an 21 issue on the table before I got the response.
22 This lighter is a. resource.
It's not one that's 23 of much use to anybody, because it ran out of fuel last
)
24 night, but that doesn't necessarily mean that it is a 25 resource within the scope of 102 (2) (E) on this amendment.
Heritage Reporting Corporatica (202) 628-4888 4
.466 1
We're going beyond the motion to strike.
We're not prepared' 2
to go.
3 A resource conflict within the meaning of 4
102 (2) (E) for this amendment. is limited to. the following set 5
of claims.
It is limited toia claim that says, "If you do 6
the racks, you're going to consume a high-order resource, 7
and there are better uses for that high-order resource, and
~
8 there are other ways to get the fuels, if you use lower-9 order resources, and that ought to be. explored," and that's 10 the boundary.on the set.
That, by the way, is also the rule 11 of ALAB-459.
Interestingly enough, any CNP in the --
12 JUDGE BECHHOEFER:
Well, ALAB-459 considered those 13 resources.
I'm not sure it excluded others.
Those were at 14 issue in that case.
15 MR. GAD:
Actually, none of them were at issue, 16 Your Honor.
At issue was a claim very much like what Your 17 Honors articulated today that said, "Some people are fer.it.,
18 and some people are agin it.
It must be a resource, and it 19 must be in conflict."
And the Appeal Board said no.
The 20 Appeal Board said -- and this is a virtual quote, not an 21 exact quote; I don't have it with me -- nobody's ever 22 articulated the resource conflict.
And it's improbable that
(
23 one would exist because, said the Appeal Board, the 24 reracking involves a few hundred thousand pounds of 25 stainless steel, of which there is a surfeit in the United Heritage Reporting Corporation (202) 628-4888
467
.y 1
States of America, and therefore that's the end of the.
2 resource conflict.
And the Appeal Board went on to say I
l 3
.that, in the absence of that kind of a resource conflict, 4
then 102 (2) (E) -- the words are either "is not implicated" 1
5 or "is not invoked."
Period, underscored.
l l
6 JUDGE BECHHOEFER:
But if you take it to this j
7 case, where the Staff.has ssid that the unused capacity is a j
1 3
resource, and where the Interveners have been challenging.
9 that, not that it's a resource, but that it's a proper-use 1
1 10 of a resource, to me, maybe that brings 102 (2) (E) into I
11 effect.
We have thought that it probably does.
12 MR. GAD:
All right.
Let me see if I can do this l
l 13 a different way.
j 14 JUDGE BECHHOEFER:
It's specifically articulated l
15 by the Staff in this case, in so many words, and that's one l
16 of the key things that's in that.
i 17 MR.. GM) :
Wait a minute.
The Staff never said l
l l
18 there was a resource conflict under 102 (2) (E).
l l
19 JUDGE BECHHOEFER:
No.
They said it's a resource.
20 MR. GAD:
Okay.
Fine.
There's-lots of resources.
21 JUDGE BECHHOEFER:
And I think resources have not 22 been defined merely by the examples that the Appeal Board t
23 used in that earlier case.
24 MR. GAD:
Let's go back, if we may, to original 25 propositions.
If we draw a circle, and the circle is Heritage Reporting Corporation (202) 628-4888
468 i
1 102 (C), 102 (C) says that, if something has the potential for 1
2 an environmental impact for the appellant then we have to do i
3 a bunch of things.
We have to assess the impact.
We have 4
to look for ways to avoid that impact.
And, interestingly 5
enough, we have to look at this notion of competing use of j
6 finite resources.
All three.
That's 102 (C).
l i
7 Does over here, we have a set called 102 (E).
l 8
102 (E), by definition, is not those cases where there is an 9
environmental impact potential, and in 102 (E) were are not 10 told to look at and quantify environmental itapacts, and 4
11 we're not told to look for alternatives that are i
12 environmental irpact avoiding.
We are only told to do the I
l 13 third of those sr.eps under 102 (2) (C), which is to look for j
1 14 resource maximization alternatives.
Now, here's what NECNP 15 is trying to do, and frankly, Your Honor, here's what you've 16 just articulated to me.
17 What you have said, what NECNP is claiming is 18 that, anytime there are two ways of doing it, and anytime 19 that somebody wants to say that one of them is 20 environmentally nicer than the other, then that's a 21 102 (2) (E) resource conflict.
Well, if you interpret 22 102 (2) (E) that way, then you've just duplicated 102 (2) (C),
23 and you have just violated the solemn precept of statutory 24 construction, t 'rt -- somewhat loosely translated -- says, 25
" Don't assume that Congress was a bunch of idiots and had to i
l Heritage Reporting Corporation (202) 628-4888 i
j 6
l 469 I
1 write the same thing in two different places."
j 2
Moreover, you're not reading the words of l
l 3
102(2) 05).
102(2) 05) is not environmental 11opact avoiding.
4 It is profligate use of resources avoiding.
If you.will, 5
resource maximization:
102(2) 05), and it counterpart when 6
EIS is required, which is 102 (2) (C) (v), it boasts the 7
fundamental principle of conservation that says, in essence, 8
for every job, take a list of the various. ways of getting it 9
done.
Order, then, in terms of descending order of capacity ~
1 1
10 to do other jobs, and then use the lower one on the list 11 that's still available.
Don't, for instance, take oil and
]
12 throw it in a fire to warm us, and deny us the ability to 13 make all sorts of modern and very useful things out of the 14 oil, where there are other things to burn that would get us 15 equally warm, and you can't make plastics and miracle drugs 16 and the like out of those other sources of fuel.
That is 17 the principle embodied in 102 (2) (E) and 102 (2) (C) (v).
If 18 you expand 102 (2) (E) to mean environmental impact avoiding, 19 then 102 (2) (C) (v) has now encompassed all of 102 (2) (C), and 20 there was no reason for writing 102 (2) (E).
21 JUDGE BECHHOEFER:
Well, the reason might have
~
22 been to put the analysis into other than an EIS.
102(2) 05) 23 applies whether or not you have an EIS.
(
24 MR. GAD:
That's right, and the reason for that is 25 because we could have a resource problem in a situation Heritage Reporting Corporation (202) 628-4888
i l
}
470 i
1 where there wasn't an environmental impact to worry about 2
avoiding.
And that is the reason why.you want to.look at 3
competing resources, whether or not there's an environmental j
1 4
issue.
But, when we're talking about environmental impact j
5 avoiding, Congress. wrote a threshold, and if you' re up to l
l 6
the threshold, then we worryLabout environmental impacts, 1
7 and whether.or not, through alternatives or otherwise, they l
~
8 can 1xs avoided, and if you're not up-to the threshold, then
-i 9
we don't.
10 By definition, using 102 (2) (E) to backdoor-l 11 environmental avoidance alternative issues is to violate the I
12 line that Congress wrote.
That's why you can't do it.
i 13 That's why it's not established as a matter of law.
Anyone 14 who wants to contend that there must be a 102 (2) (E) -- and I 15 pray to God I got all the citations right.
Anyone who wants 16 to contend that there must be a 102 (2) (E) alternatives 17 assessment has got to be prepared to say, " Going ahead'with l
18 the racks requires the sse of rewource A."
Maybe we're 19 making them out of, I don't know, some elements that there's 20 only ten pounds of in the world.
"And we shouldn't do it 21 that way, because we can do better things with that t
22 resource.
And, oh, by the way, you can use garden-variety 23 stainless steel to use the racks."
You have to be able to 24 identify that kind of a resource conflict.
Simply saying 25 there are resources 1nvolved --
Whenever there's physical i
Heritage Reporting Corporation (202) 628-4888 A
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471 1
property involved, you can say there's a resource involved.
2 JUDGE BECHHOEFER:
I think there's a case that 3
cites --
4 MR. GAD:
There are no NRC cases that say that, 5
Your Honor.
6 JUDGE BECHHOEFER:
I'm not sure there are any NRC 7
cases that are directly at point.
~
8 MR. GAD:
There are two.
ALAB-459 is directly on 9
point.
The other one --
10 JUDGE BECHHOEFER:
Well, that was more or less who 11 articulates what the resources are going to be.
12 MR. GAD:
It was not about resources, Your Honor.
13 It was about conflicts.
What ALAB-459 says is there is no 14 conflict about the use of a few hundred thousand pounds of 15 stainless steel.
There is nobody contending, " Hey, don't 16 use that steel in the pool, because I've got something 17 better to do with it."
18 JUDGE BEC'HHOEFER:
How about a few hundred square 19 feet of air that are not occupied now.
I'm using my square 20 feet loosely.
21 MR. GAD:
Fine.
It's cubic feet, actually.
22 But where's the cubic feet of air that are not 23 being occupied?
Not in the pool.
24 JUDGE BECHHOEFER:
Well, the new pool will occupy 25 more, theoretically.
Heritage Reporting Corporation (202) 628-4888
472 1
MR. GAD:
Absolutely not, Your Honor.
The nev 2
pool has exactly the same dimensions as'the'old pool.
- And, 3
by the way, the old pool had high-density racks in it, but 4
that's a different argument.
5 JUDGE BECHHOEFER:
I'm aware of that.
6 MR. GAD:
The second NRC case, interestingly 7
enough, that is directly on point -- I told you I got this.
8 thing just in time to hop in the. car --
I actually.got the 9
' errata to it before I got the thing, so that makes you very 10 curious.
There is a citation in the errata to a case, which.
11 I may or'may not have xeroxed -- (Pause) -- which was a 12 subsequent NORDATA decision.
If you'll give me just a 13 second, I'll find it.
14 (P ause. )
15 JUDGE BECHHOEFER:
I think the citations are-the 16 same.
17 MR. GAD:
No, they're very different.
18 JUDGE BECHHOEFER:
No, no.
I mean the same as was 19 in the response.
20 MR GAD:
Absolutely, but I didn't have it.
21 JUDGE BECHHOEFER:
I don't think the errata 22 changed it in any way.
~
23 MR. GAD:
No, but it revealed the page to it.
)
24 JUDGE BECHHOEFER:
Right.
25 MR. GAD:
So I read this case.
It's LBP-85-34.
Heritage Reporting Corporation (202) 628-4888
. - _ _ _ _ -__ __ _ ______ _ x
473 1
NECNP contends that LBP-85-34, in essence, 2
supports this curious and illogical notion, this notion that 3
stands any notion of statutory construction on its head, 4
that 85-34 supports the notion that, whenever we want to 5
talk about environmental impacts, we can do it through 6
102 (2) (E), and that's the resource conflict.
85-34, in the 7
first instance, couldn't say that, because it's the same 8
Licensing Board that got told what to do in ALAB-459 in the 9
same docket.
10 Worse than that, the language of LBP-85-34 is 11 exactly to the reverse to what --
The language says, and I 12 quote -- this is now page 490 of whatever book it comes out 13 of -- "If the Staff had correctly determined that an 14 environmental impact statement was unnecessary because the 15 proposed action would not significantly affect the quality 16 of the human environment, the Licensing Board would not have 17 to consider the environmental impacts of alternatives which 18 would necessarily be equal or greater."
19 I'm going to concede to you that there are a l
20 couple of federal judges who have muddied the distinction 21 between --
22 JUDGE BECHROEFER:
Read the case I mentioned I
23 earlier that's being cited.
24 MR. GAD:
I'm not surprised.
It's happened a i
25 couple of times.
There is also one federal judge who got it j
i I
Heritage Reporting Corporation (202) 628-4888 C
474 1
very right, although' Your Honor read it a different way.
2 But the fact of the matter is that we' re in front ' of the 3
NRC, and the NRC reads ' sections 102 (2) (C) and 102 (2) (E) the 4
way Congress wrote them, which is always a great way to 5
start, and if you do that you cannot find that they are each 6
ways of doing the same job, or else there would be no point 7
in writing them.
8 I've forgotten'how we got off on this.
Oh, it was 9
the issue of whether or not you had to dismiss the 10 contention if you dismissed the Thompson testimony.
At 11 least in theory, the answer is no.
But in fact, in order to 12 sustain a 102 (2) (E) contention, you have to identify a 13 resource conflict of the type spoken of in 102 (2) (E).
The 14 Appeal Board has decreed that it is at least improbable, if 15 not impossible, that such a conflict would exist, and at 16 that point somebody has to come in in testimony.
If you 17 strike that Thompson testimony, then there's nobody left.
18 JUDGE BECHHOEFER:
My only question is going to 19 be, when you read the case that I mentioned, there's an 20 interesting quote which says this, and it's something to 21 think about, certainly.
It says, "The relative absence of 22 significant environmental effect does not translate directly 23 into overall social benefit."
Now, that is the touchstone 24 where this decision goes, and then it goes on from there,-
25 finds that there has been adequate evaluation of l
Heritage Reporting Corporation (202) 628-4888
- 475 l
l.
1 alternatives under 102 (2) (E).
2 MR. GAD:
-Q.E.D.,.Your Honor,'because the Congress 3
did'not see that the federal government,.particularly when 4
its granting or denying licenses-under the' Atomic Energy 1
5 Act, is to take aglook at whatever the words were that Your j
6
. Honor. cited,~"overall social benefit."
)
J 7
-JUDGE BECHHOEFER:
This was a. Corps of Engineers 1
1 8.
case.
9 MR. GAD:
Okay.
It doesn't --
Well, that-10 actually does make a difference.
We're getting just a j
11 little bit far afield.
j 12 JUDGE BECHHOEFER:
Well, we ought to have a chance i
13 to read the case, I guess, before we --
14 MR. GAD:
Yeah, but-we have'to remember where we 15 are.
When NEPA was written, it was intended to apply to the 16 federal government doing things in its plenary' capacity, 17 building roads and post offices.
It was never intended by.
i 18 Congress to apply to licensing decisions.
Because, if you-l l
19 stop and think about it, it is a very, very poor fit.
The 20 Atomic Energy Act, like most federal licensing' statutes, i
21 says, "If you want a license, here's what you've got to 22 meet,.and if you meet it, you get the license."
23 Let us, just for.the sake of argement, say that we i
24 had a statute that said -- and there is sucP a statute --
25 "If you're over.the age of 18, a citizen of'the United Heritage Reporting Corporation (202) 628-4888 9
_______________m_m___
476 1-States, and never convicted of a felony involving the misuse 2
of radio spectra,-you can apply for.an obtain, as a right, a
~
3 part 95 broadc'asting. license."
Now, how are you going to 4
apply NEPA to this?
Are you going to allow somebody to come 5
-in and say there would be'an environmental effect of.
6 granting this license, and therefore we're going to.say that 7
NEPA has now amended the statute, so while, radio access, 8-you get this as a right, NEPA 'says you don't.
That is 9
arguably one way.to read it.
The Supreme Court of the 10 United States has said to the contrary.
It has said that l
11 NEPA does not amend any other statute.
l l
12 So, fitting a statute that was designed to direct 13 and to influence and to induce the direction of plenary 14 decision-making, fitting that into.a situation where we're 15 essentially grading tests, pass-fail, is a' tough fit.
16 JUDGE BECHHOEFER:
Well, are we really doing that?
17 Is the question before us, maybe, "Is the EA adequate, and 18 if not come up with one that is"?
19 MR. GAD:
Under the Atomic Energy Act --
20 JUDGE BECHHOEFER:
Not under the Atomic Energy 21 Act.
The procedural requirements imposed by NEPA.
They say 22 you tell the public and the decision-maker exactly what's at 23 stake and let it go _ rom there.
We're not the decision-24 maker in this case, except on contention.
25 HR. GAD:
If you understand that it is all I
Heritage Reporting Corporation (202) 628-4888 1
l s
477-1 procedural and not decision-determinative, license grant-or-
)
l 2
deny determinative, then we can get off on a different hunt.
3 But my point is this:
In order to deal with --
4 Calvert Cliffs, of course, told us that we're going to make i
5 it difficult to fit.
It's unfortunate, but it's too late to i
6 do much about it.
The Commission has addressed this j
l 7
question of how it is that we can deny a guy a license to do I
8 what the Atomic Energy Act he may do, in order to achieve l
9 some alternative that we all prefer when it's not the 10 government doing the alternative.
If it's alternative post I
11 offices, life is easy, because the government decides where 1
I 12 it goes; it's an original decision.
The Commission dealt i
I 13 with that issue, dealt with.the pragmatic problems of 14 preferring an alternative that has never been as,well 15 studied as the proposal,.and therefore the uncertainties of 16 which are a large circle around a dot and might very well 17 take a dot that you think is a little bit north and make it 18 a far bit south when we finally knew as much about that as 19 we know about the proposal on the table.
The Commission 20 took a look at all of these issues, and what they said was, 21 in order to deny a license application on the grounds of an t
22 environmentally preferable alternative -- that is to say, 23 once we're all the way into 102 (C) and not the much narrower i
24 scope of 102 (2) (E) -- in order to deny such a license l
25 application, the Commission said that this alternative must Heritage Reporting Corporation (202) 628-4888
i i
478 1
be obviously superior.
It must have --
1 2
JUDGE BECHHOEFER:
Well, if the alternative is a 3
site, the Commission said that.
4 MR. GAD:
Actually --
5 JUDGE BECHHOEFER:
Peter Bloch said it --'but-I'm 6
not sure I agree with it -- later.
i 7
MR. GAD:
The Commission agreed with Peter Bloch, 8
Your Honor.
9 JUDGE BECKHOEFER:
Pardon?
I 10 MR. GAD: -The Commission agreed with Peter Bloch.
i 11 JUDGE BECHHOEFER:
The Commission didn't review 12 it.
They didn't say they agreed.
13 MR. GAD:
The Commission reviewed it to the extent 14 that it was before them, and they expressly cited the 15 obviously superior test used outside of the alternate Fates f
16 inquiry.
Moreover, it doesn't make any sense to say that 17 one set of alternatives we' re going to apply one rule to, i
18 and another set of alternatives we're going to apply another i
19 rule to.
20 JUDGE BECEHOEFER:
It does, if you read the basis 21 for applying that this cites.
The Commission indicated the 22 extensive site review that went on, that every applicant had 23 to undertake and the Staff had to undertake, of the siting 24 question, and they said that, "Well, you look at these other 25 sites, they have not been explored to the seme depth, and l
.1 I
Heritage Reporting Corporation (202) 628-4888 i
i I
1
)
m i
479 1
when you get around to looking at them in detail, you may
]
1 2
find equal problems.
Therefore, when.you're looking at 3
sites, you've had all of this investigation of the' site in 4
question, you have a lot of' data, you've been collecting.
l 5-data for years on that site; therefore, any' alternate sites I
6 have to be obviously superior." I don't think that reasoning 7
necessarily applies to other types of alternatives.
I
~
8 MR. GAD:
It applies precisely in this case,
.}
9 because we know an awful lot-more about reracking that has 10 been studied by the people who intend to do it, that has a 11 track record of 100 prior uses, gi"e or take a few, already l
l 12 in this country.
We know an awful lot'more about that than l
13 we do about dry casks.
14 JUDGE BECHHOEFER:
Yes, but I don't think their
'I 15 comments are applicable to generic questions, as the
.)
16 advantage of one technology over another, as distinguished 17 from sites, each of which is unique, and therefore unique 18 examination is what gives rise to potential problems with 19 sites.
That you would not have had.
You might well have 20 had some generic analysis of technology, which is really 21 what we're talking about here.
22 MR. GAD:
The reason for regtairing a'significant 23 delta, both quantitatively and in terms of. certainty, for 24 the alternate sites issue is to avoid the following-very 25 real scenario:
We compare two sites on an absolute basis, Heritage Reporting Corporation (202) 628-4888
{
480 1
find one marginally better than the other.
We tell the guy, 2
" Forget your proposal.
Go to alternative A."
We then do 1
3 alternative A, and we find out that when we have expanded 4
our knowledge on that one it turns out that the incremental 5
environmental preferability of them is reversed, and now we 6
tell the guy to go back to his original.
And that cycle can 7
flip endlessly.
8 That's exactly what can happen, Your Honor, if you l
9 decide to make decision about racks versus casks on the l
l 10 diminishingly small environmental delta between them.
You l
{
11 can't make a decision that way, and therefore, since it's 12 not the government, which can go either way, but it's the 13 government telling a license applicant who meets all other 14 requirements, "You can't do this one, because this one is 15 environmentally preferable."
16 And we don't know nearly as much about casks as we 17 do about racks.
Dr. Thompson would have you believe that 18 casks is about as s' imply as going out there and laying 19 concrete in the highway, but in fact, if we take a look at 20 the Surry experience, we found a whole bunch of issues, one l
21 of which prevented the use of the casks -- that is the l
22 basket -- to its capacity for a long time.
In fact, as near 23 as I know, it isn't resolved yet.
24 Then, when we take a look at the use of concrete 1
I 25 for concrete casks, and to some extent concrete modules, we Heritage Reporting Corporation (202) 628-4888
~
481
~
1 find that an awful lot of:very knowledgeable people,are 2
spending an awful lot of time dealing with the issues of-(
i 3
concrete in a high-temperature environment, because normally 4
concrete isn't.used in.that kind-of environment.
We don't
)
s 5
know how it reacts.
And so the scenario, comparing 6
something that is known, and.therefore is close to a point, 7
with something that is not known and therefore has a large j
8 circle of uncertainty around it, applies equally here as it q
1 9
does to alternate sites.
I respectfully. submit --
)
j 10 JUDGE BECHHOEFER:
Of course, on the alternate-11 site, you would have had no extensive examination of the-12.
alternate site.
Here, dry casks, you've licensed a few i
13 already, so the Commission knows something about them.
14 MR. GAD:
In fact, if we take a look at Seabrook,'
15 Your Honor, they knew an awful lot about the.Litchfield site.
16 and the Newington site.
Those are the'two. alternatives.
17 JUDGE BECHHOEFER:
Well, but they still are unique 18 sites that have not' been specifically looked at.
Dry cask 19 has been looked at by the Commission in at least,'and 20 there's additional applications.
I would not necessarily 21 equate alternate sites, which are unique, to the dry cask 22 technology, which has been looked at to some extent.
Be l
23 that as it may.
24 MR. GAD:
We've gone somewhat far afield, and I 25 apologize for being so acquiescent whilst you led me there.
Heritage Reporting Corporation (202) 628-4888 i -
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_ _ _ _ _[L_ _
1482 1
I close by asking that the motion to strike be 2
allowed.
3 JUDGE BECHHOEFER:
All right.
' l 4
I think at this point we.will take a break.
How-13 long would the staff like to look at the response?
l 6
MS. JEHLE:
One half hour.
j i
7 JUDGE BECHHOEFER:
One half hour.~
j 1
8 MS. CURRAN:
Judge Bechhoefer, Ms. Singer's gone 9
out to get some copios of the van Abbema case so we can-i 10 circulate'those, if that would be helpful.
l 11 MS. JEHLE:
The Staff has a copy.
12 JUDGE BECHHOEFER: HOh, okay.
You'll be up next, 13 so why don't we come back at 11:30.
It's 11:00 clock i
14 already.
]
i 15 (Brief recess.)
16 17 18 19 20 21 l
22 23 24 25 Heritage Reporting Corporation (202) 628-4888 l
_J\\..
_i 483 l
1
' JUDGE BECHHOEFER:
Okay, back on the record.
I 2
Has the Staff had a chance to read NECNP's 3
response?
4 MS. JEHLE:
Yes, we have.
And because the 5
response provides no additional information than was 6
provided in their brief and their reply, we don't object to-l 7
it.
]
8 JUDGE BECHHOEFER:
Okay, is Staff ready to present-
)
l 9
its side of its motion to strike?
J
-i 10 MS. JEHLE:
Yes, we are.
I believe Bob Gad wanted I
11 to make another point.
12 MR. GAD:
Oh, Yes.
Your Honor, I've lost track of l
13 what the right time is,'but you asked me to take.a look at j
14 this case.
15 JUDGE BECHHOEFER:
Yes, we did.
j 16 MR. GAD:
Van Abbema v.
Forne11, 807 F.2nd 633.
17 To be perfectly candid with Your Honor, this is a very 18 difficult decision to read.
It is not the clearest thing in 19 the word, and, in particular, it is not cicar-as you go 20 through it what the standard is that's being applied.
21 Let me make two observations.
The first one is 22 that this decision appears to be governed as much by some 23 provisions of the Corps of Engineers' substantive 24 regulations, with which I'm not familiar, as by NEPA.
For 25 instance, Your Honor referred to an overall public welfare Heritage Reporting Corporation (202) 628-4888 o
l i
484 i
1 review.
The court cites 33 CFR something for that.
That j
l 2
has nothing to do with NEPA.
3 Likewise, there is a bunch of discussion about 4
economics in connection with_the permit.there at issue.
As -
1 5
near as I can tell, albeit without an awful lot of help from o
6 this printed decision, all of those economics requirements.
7 related to something in 33 CFR and not to NEPA.
8 One thing that I can extract from this decision is 9
this.
If you turn to page 642, top of the_second column, 10 the following language appears, and I quote.
"As is well 11 known, the Corps must evaluate alternatives to the proposed I
j 12 facility in deciding whether or not a permit should issue."-
1 1
13 It then cites the codified version of Section 102 (2) (E) of l
l
\\
14 NEPA.
The statement is wrong on its face.
102 (2) (E) does 15 not say that.
And that being the case, I find this decision l
16 of very little help.
The fact of the matter is that 17 102 (2) (E) has been interpreted by the Appeal Board, and the l
l 18 Appeal Board said what I said earlier it said.
- And, 19 happily, that is consistent with the words that Congress 20 enacted.
So I don't think this decision, frankly, adds l
21 anything of usefulness to what is before us this morning.
]
22 MS. JEHLE:
_The NRC staff moves to strike the 23 testimony of Gordon Thompson filed on May 23, 1989, and the 24 response of the rebuttal testimony filed June 9 of 1989.
25 The Staff believes that the Board should refuse to admit Heritage Reporting Corporation (202) 628-4888 l
l 1
1 f
l
485 1
Gordon Thompson's testimony, because it deals exclusively l
2 with the severe-accident issues and avoidance of severe 3
accidents by alternatives.
Furthermore, these issues are 4
before the Appeal Board now.
i 5
The Board's order in October, LBP-88-26, excluded-6 the severe-accident basis from Contention 3.
Further, in 7
LBP-89-6 the Licensing Board referred the severe-accident 8
basis to the Appeal Board for consideration.
It is the 9
Staff's position that it is excluded from this proceeding, 10 that there is reason, and the Staff has not had an 11 opportunity to schedule discovery on the severe-accident I
12 basis.
Discovery was set aside until the Appeal Board j
13 issued a ruling.
l 14 JUDGE BECHHOEFER:
Did you get discovery, 15 interrogatories, at least, or other discovery, on the 16 remaining parts of the environmental --
j 17 MS. JEHLE:
No, we did not.
18 JUDGE BECHHOEFER:
So you didn't ask the i
19 Interveners what they proposed to show.
20 MS. JEHLE:
From the Interveners' Environmental 21 Contention 3 there's no indication that they would be 22 relying on severe accidents as a basis.
And it had been 23 excluded as a basis by the Licensing Board.
I think we were e
24 reasonable in relying on that.
And discovery on severe 25 accidents was deferred until the Appeal Board ruling.
There i
Heritage Reporting Corporation (202) 628-4888
l 486 I
1 was no reason for us to initiate discovery for Environmental I
2 Contention 3 with the severe-accident basis.
There were no 3
questions which we would have felt adequate.
4 Furthermore, NECNP has stipulated that the entire j
5 ruling, severe-accident ruling, was referred to the Appeal 6
Board.
They-do on their June 19 document, page 6, the top 7
of the page.
i 8
JUDGE LINENBERGER:
Ms. Jehle,'is what'you're 1
9 saying equivalent to the Staff taking a position that there 10 are no ingredients of the Thompson direct and' rebuttal that 11 can survive the objection with respect to severe-accident 12 orientation?
13 MS. JEHLE:
That is correct, Your Honor.
l 14 JUDGE LINENBERCER:
Thank you.
l 15 JUDGE BECHHOEFER:
What is your position -- I'll 16 ask you the same question as Mr. Gad -- on the material in 17 Exhibit 14 which is brought in at page 10 of the testimony?
18 MS. JEHLE:
Referring.to the dry cask alternative?
19 JUDGE BECHHOEFER:
The cost of it, yes.
~
20 MS. JEHLE:
The Staff's position is that is not at 21 issue, because the Staff has not been required to look at 22 alternatives to spent fuel pool expansion under 102 (2) (E).
l I
23 The requirements under that provision of NEPA have not been 24 triggered.
The Interveners have failed to show any 25 unresolved conflict over the uses of available resources.
1 Heritage Reporting Corporation (202) 628-4888 4
i, 487 1
JUDGE BECHHOEFER:
Well, what about the same 2
question I asked Mr. Gan.
As set forth in the environmental 3
assessment, it's the sentence that the expansion capacity of 4
the existing pool is a resource that should be used.
They 5
have certainly taken issue with that.
.i 6
MS. JEHLE:
Right.
Your Honor, the Staff has used 7
the word " resource" in that sentence.
However, the word 8
" resource" has more than one meaning.
The Staff's meaning 9
was for a facility.
And I think you could easily read "the 1
10 existing pool is a facility that should be used".
They 'are 11 not talking about resources _as commodities in this section.
12 They do so in other parts of the EA.
13 JUDGE BECHHOEFER:
Well, I recognize that.
But 14 I'm not sure that the word " resource" is necessarily so 15 limited.
It's so limited, I think, in maybe particular 16 examples, but I'm not sure they so limit it.
17 MS. JEHLE:
So limited to commodities?
18 JUDGE BECHHOEFER:
Commodities, yes, 19 MS. JEHLE:
The NEPA statute, is that what you're 20 referring to, the NEPA provisions?
21 JUDGE BECHHOEFER:
Well, the NEPA statute and the 22 Appeal Board decisions.
23 MS. JEHLE:
Which Appeal Board decisions?
24 JUDGE BECHHOEFER:
Mr. Gad would have it, 659, 25 MR. GAD:
ALAB 459.
Heritage Reporting Corporation (202) 628-4888
^-
I 488 1
JUDGE BECHHOEFER:
Oh, yes, 459 is one of them.
2 MS. JEHLE:
ALAB 459, the Appeal Board decision in 3
that case, I think, we presented by Mr. Gad.
And the Appeal l
4 Board did not find that there was an unresolved conflict 5
over the use of resources when the resources at issue were 6
the spent fuel pool racks and specifically those materials, 7
steel, that are use in the rack.
It doesn't create --
The 8
mere fact that someone says there are alternatives to pool 9
storage does not create an unresolved conflict.
Without 10 more, the bald statement that there is another way of 11 storing fuel is not sufficient to create an unresolved 12 conflict.
13 JUDGE BECHHOEFER:
Well, we had a little more than 14 that.
We had not just a bald statement, but some indication 15 that dry cask is a viable alternative and is an 16 alternative --
17 MS. JEHLE:
The Staff's position has never benn 18 otherwise.
The Staff believes that dry cask storage is an 19 environmentally benign method for storing spent fuel.
j 20 However, it has not found that it's environmentally superior i
21 to wet storage.
Furthermore, there's no reason to examine
]
i 22 an alternative to the proposed action.
1 i
23 JUDGE BECHHOEFER:
Well, isn't an examination of 1
24 the alternative just the hard look that --
25 MS. JEHLE:
The cases on hard look, I believe, Heritage Reporting Corporation (202) 628-4888
489 1
talk about the environmental consequences of proposed 2
actions, not environmental consequences of alternatives to 3
proposed actions.
4 JUDGE BECHHOEFER:
Well, I'm not sure that's 5
right.
6 MS. JEHLE:
I believe the case law is.
7 JUDGE BECHHOEFER:
I think several of the cases do 8
talk about it.
The River Road case was one of them.
9 MS. JEHLE:
The River Road case does not talk 10 about hard look at alternatives.
NRDC v.
Morton in 1972 11 talks about hard look at environmental consequences as to 12 the choice of action to be taken, and that the court should 13 not interject itself into the area; the court should be 14 reviewing whether the agency took a hard look at the 15 proposed action consequences.
j 16 To go back to the words of 102 (2) (E), it's talking i
17 about the alternative use of resources.
It's not talking 18 about alternative consequences.
19 JUDGE BECHHOEFER:
Are there not a number of cases 20 which various parties decided which indicate that even when 21 you don't have a significant federal action, you must take a 22 look at some alternative, one alternative --
l 23 MS. JEHLE:
Where it has been shown that there is 24 an unresolved conflict.
We agree --
25 JUDGE BECHHOEFER:
Well, what about the Eph Heritage Reporting Corporation (202) 628-4888 i
e
490 1
Marshall Alliance case?
2 MS. JEHLE:
The court-found'an unresolved conflict-3 over -- in the awarding of leases for oil and gas 4
exploration.
The' resources at issue, land, which is going i
i 5
to be permanently changed through oil and gas exploration, 6
is greatly different than spent' fuel racks in'the storage
- t 7
pool.
1 1
8 JUDGE BECHHOEFER:
And what would your comments be 9
on the van Abbema case? 'Or however it's. pronounced.
10 MS.. JEHLE:
Yes, I have difficulty with the-11 pronunciation too, Your Honor.
I agree with Mr. Gad's 12 statement.
The court is asking for an overall public
. j 13 welfare review.
But it requires that under the court's own 14 regulations, 33'CFR Section 520. 4 (A).
the requirement is l
1 15 not under NEPA.
The court discusses NEPA.
I l
16 JUDGE BECHHOEFER:
And decides that in part on the l
l 17 basis of NEPA --
I don't have the decision'in front of me, j
18 but there were port' ions of that which explicitly ruled on l
19 the basis of NEPA.
I' don't have a copy in' front of me, so I 20 can't turn to the page.
21 MS. JEHLE:
I'm looking at page 639.
The court's l
1 22 view of NEPA is not entirely; clear.
The way NEPA cuts is j
23 not made entirely clear.
However, the court does make clear 24 that it is looking at the Corps' regulations when it's j
25 talking about its overall public welfare review, and then l
1 Heritage Reporting Corporation j
(202) 628-4888
___.-.A.
I 491 1
went on to require an economic analysis of the two coal 2
- trans-shipping facilities.
3 JUDGE BECHHOEFER:
Well, what about the discussion 4
on pages 642 and 643, which seems to invoke NEPA at least in 5
part?
6 MS. JEHLE:
Right.
Then the court goes on to an 7
evaluation of alternatives to the proposed facility.
The 8
court has round an unresolved conflict over the resources, 9
an existing *trans-shipping facility and a proposed 10 facility.
And it then required the Corps under its own 11 regulations to conduct an economic analysis, but didn't 12 require an economic analysis under NEPA.
13 JUDGE BECHHOEFER:
I'm not sure about that.
14 MS. JEHLE:
The Corps' regulations are not my area 15 of expertise.
16 JODGE BECHHOEFER:
I haven't read the Corps' 17 regulations.
18 MS. JEHLE:
But they do give some indication that 19 the Corps' regulations require such an analysis.
They speak 20 to that earlier in the decision.
21 The case is not a very clear delineation of the 22 requirements of 102 (2) (E), just as Mr. Gad had mentioned 23 earlier.
And I thirk that the court in this case did not 24 look at the overall public welfare review as a requirement 25 under NEPA.
Heritage Reporting Corporation (202) 628-4888
492 1
JUDGE BECHHOEFER:
How about the earlier case of 2
the Trinity Episcopal?
That hassbeen'around for a long 3'
time.
4 MS. JEHLE:
Yes,- it.has.
I think it began in 1
5 1962.
The Supreme Court in Strykers Bay noted it.
- Okay, 6
what are you referring to in Trinity?
7 JUDGE BECHHOEFER:
Well, the' requirement to do 8
some sort of' an analysis' of ' alternatives under 102 (2) (E).
9 MS. JEHLE:
The court.in Trinity -- and our brief 10 goes to this point -
did not define the limits of 11 102 (2) (E).
However, the court finds-that where there's a 12 major federal action and the goal of that action can be
~
13 achieved in two or more ways, that is an unresolved l
14 conflict.
They found an unresolved' conflict, they found a 15 major federal action, and they require that the court 16 consider alternatives, alternatives to the low-cost low-17 income housing.
l 18 JUDGE BECHHOEFER:
Now, what --
l 19 MS. JEHLE:
Go ahead.
20 JUDGE BECHHOEFER:
I'm sorry.
Finish, please.
21 MS. JEHLE:
In Riv9r -- Was your next question to 22 River Road, or am I anticipating you incorrectly?
23 JUDGE BECHHOEFER:
Yes.
24 MS. JEHLE:
Oh, okay.
Go ahead.
25 JUDGE BECHHOEFER:
I just was going to ask whether Heritage Reporting Corporation (202) 628-4888 L______.______
i t
493 l
1 you had any further comments on the River Road holding.
i 2
MS. JEHLE:
River Road again found unresolved 1
3 conflicts concerning the alternative uses of available i
4 resources.
And the Staff agrees that once 102 (2) (E) has 5
been triggered by a finding of unresolved conflicts, then l
6 there is a requirement that alternatives be exanined.
i 7
However, the Staff contends that the Interveners have failed
.l 1
~
8 to point to any unresolved conflicts which are contemplated l
9 by 102 (2) (E).
l 10 JUDGE BECHHOEFER:
Just to summarize, strictly in 11 terms of the motion to strike, do you claim that there is l
l 12 nothing in Dr. Thompson's testimony or his rebuttal that 13 relates to anything except severe accidents?
14 MS. JEHLE:
Yes, that is the Staff's position.
15 JUDGE BECHHOEFER:
Now, I asked Mr. Gad this 16 question.
Would it not be possible for us to keep the --
17 Even if we were to strike all of the testimony, wouldn't we 18 presumably keep the contention in and regard the 19 Intervenor's claim that as a matter of law, the examination 20 of alternatives in the EA is inadequate?
Would not that be 21 a basis for sustaining at least the existence of the 22 contention beyond the motion to strike?
23 MS. JEHLE:
Your Honor, that very narrow legal 24 argument may remain.
The legal argument should be readily 25 resolved with a reading of 102 (2) (E).
That's all that would Heritage Reporting Corporation (202) 628-4888
q 494
'l 1
remain,-is the narrow legal argument.
2 JUDGE BECHMOEFER:.Right.
Now,'if we'should' 3
regard the statement in the Staff EA about a resource'as i
4 sufficient to bring in the requirement that.there be an
]
5 unresolved question about alternative use of resources, if.
i l
l
'l l
6 we should decide that under that standard the ' Staff's. EA was j
1 7
not adequate, what shoul'd we do about it?
And should'we l
i 8
supplement it with'what's before-us?
There is a'.1 "t of' i
9 material that's before.us, as you well know.
10 MS. JEHLE:
First of all, that issue was not 11 raised by NECNP in this proceeding, rewriting of.the EA by-l 12
.the' Licensing Board.
Secondly, the Staff's position is that
)
13 its EA is adequate, meets the requirements of NEPA and the i
14 Commission's regulations.
l
)
15 JUDGE BECHHOEFER:
Yes, I'm saying you should 16 assume for the moment to the contrary, that the Board 17 doesn't agree with that.
18 MS. JEHLE:
Well, it's a difficult hypothetical to 19 deal with.
It depends on what the Board's order would be.
20 JUDGE BECHHOEFER:
Well, would you think that we 21 could rewrite the EA based on some of the affidavits that i
22 are before us?
I 23 MS. JEHLE:
No, we don't-feel that --
j 24 JUDGE BECHHOEFER:
Which do set forth in i
25 considerably more detail than the EA does --
i Heritage Reporting Corporation (202) 628-4888 l
l l
495 1
MS. JEHLE:
No, we don't feel that the EA needs to j
1 2
be rewritten.
There has been further testimony provided by 3
the Staff.
')
4 All of the materials, first of all, that were j
5 provided in the interrogatories and subsequent Staff 6
testimony have been referred to in the EA.
We have tiered 7
our EA on documents, Staff documents that were in.the public 4
8 record.
The Staff's testimony can supplement the EA.
We 1
9 don't feel there would be any requirement to rewrite the EA 1
10 itself.
I l
11 JUDGE BECHHOEFER:
Well, I'm talking about the I
12 portion of the EA dealing with alternatives now, nothing' l
13 else.
14 MS. JEHLE:
We stand by.the position that 15 alternatives have not been raised by 102 (2) (E) and that i
16 aren't required to be included in the EA.
17 JUDGE BECHHOEFER:
Now I have a further question, j
18 If we should agree that everything concerning severe 19 accidents is before the Appeal Board and is not open to us 20 at this stage, what, if anything, should we do with the 21 portion of the EA -- I'll give you the page -- on page 11, 22 Paragraph 5.27 If these subjects are really not subject to 23 examination, should Paragraph 5.2 -- it's actually two l
24 paragraphs, but should that stay in the EA?
25 MS. JEHLE:
The Staff contends the issue of severe Heritage Reporting Corporation (202) 628-4888
496 1
accidents is not before the Licensing Board at this time.
2 Therefore, there's no requirement that.the' Board act upon 3
Section 5.2 at this time.
The Appeal Board:has this issue 4
referred to it, is presently considering it.
j 1
5 JUDGE BECHHOEFER:
Well, should there'be anything j
1 6
in the EA that is not subject to challenge by a party?
7 Because that would seem to go against --
8 MS. JEHLE:
Environmental Contention 1 deals with j
l t
9 severe accidents and is presently being considered.' I don't 10 think the Interveners are being excluded'from raising the 11 severe-accident contention, just being precluded from-using i
12 it as a basis to Environmental Contention 3 at this time.
I 1
13 JUDGE BECHHOEFER:
Ms. Jehle, have you concluded?
14 Because if you havo, we'll go on to NECNP.
15 MS. JEHLE:
The Staff has a few other points that 16 we would like to make regarding our motion to strike.
17 JUDGE BECHHOEFER:
Right, okay.
18 MS. JEHLE:
There is an element of surprise It 19 was an unexpected issue to be raised by the Interveners, and 20 it was raised in their brief and reply.
Again, we have not 21 had an opportunity for discovery on this issue.
And NECNP 22 is redefining its contention, its Environmental Contention n
23 3, with the severe-accident basis.
It appears that it's a 24 challenge to the EA's determination of no significant impact 25 on the environment.
It's a rephrasing or a restructuring of Heritage Reporting Corporation (202) 628-4888
l j
497
- )
1 a contention.
And NECNP has provided no technical support 2
for their claims, their testimony, which goes to the effect.
I 3
that wet storage carries substantially. increased risk and' i
4 that dry cask storage is unquestionably an environmentally I
5 preferable alternative.
Their testimony'provides no 6
technical support for these statements.
7 The rebuttal testimony of Gordon Thompson provides 8
no further support for those statements.-
There is no 9
factual basis, bases, for his opinions, and he has. exhibited 1
10 no knowledge of the construction of dry cask storage l
I 11 facilities, no' knowledge of the design aspects of the l
12 Vermont Yankee spent fuel pools, and there's virtually 1
13 support for his opinions.
And he has given no indication i
14 that he has any specific knowledge as to the timing of 15 design, licensing and construction of dry cask storage i
16 facilities.
Furthermore, as the Staff has repeatedly 17 pointed out, there are no casks available for boiling water 18 reactor fuel, and it doesn't appear that there is going to 19 be one in the near future.
So he has given no indication 20 that his statements on timing are supported by technical, 21 factual data.
22 JUDGE LINENDERGER:, Excuse me.
On this point with 1
23 respect to no dry casks or BWR's, I seem to recall the Staff l
24 saying someplace that, indeed, there have been some 25 analyses; but because an applicant or somebody didn't come Heritage Reporting Corporation (202) 628-4888
498 1
back and ask for the result of it, you'can technicallyfsay l
1 2
no, there are no casks.
3 Well, I have a little problem here because it 4
seems to me that there is some background experience that:
5 would permit one to assess the kinds of technical. problems, l
6 the kinds of time schedules that might be involved.
And if 7
I'm wrong about that., I should like to be put straight.
]
8 MS. JEHLE:
The Staff did a review of a boiling f
9 water reactor cask.
However, the Staff had questions'about 10 the cask's design and asked that the vendor complete a j
11 topical safety analysis report to address the Staff-raised 12 questions.
The vendor did not do so, and the Staff has no 13 indication that the vendor intends to complete the NRC's 14 requirements and actually proceed with approval of that i
1 15 cask.
16 JUDGE LINENBERGER:
Well, I can accept that l
17 statement, but --
Forgive me, Ms. Jehle, I'm not trying to 18 argue with you here.
But it still seems to me that in 19 doing whatever the Staff did with respect'to that TSAR, l
some 20 experience was gained about the scope of the problems 21 involved, some experience was gained about the kinds of 22 schedules that might be faced.
23 MS. JEHLE:
Your Honor, I agree that that is true.
24 However, the bulk of experience has been done with 25 pressurized water reactor fuel casks.
And the time frame Heritage Reporting Corporation (202) 628-4888
(
499 1
that we're looking at is four to six years for the 2
designing, licensing and construction of dry cask storage 3
facilities.
4 JUDGE LINENBERGER:
What is your basis for 5
establishing that time window?
6 MS. JEHLE:
The Staff's licensing experience in 7
Surrey, Occonnee, and the Robinson plant.
8 JUDGE LINENBERGER:
Thank you.
9 JUDGE BECHHOEFER:
Now, as to the brief statements 10 in Dr. Thompson's testimony about cost and time for review 11 of dry cask storage, coupled with the statement in one of 12 the brief we got which had attached a number of cover 13 letters from other cases handled by the Staff -- these were 14 cover letters on how long it took to prepare an 15 environmental assessment -- should not the contention before 16 us be regarded as a challenge to the statement by the Staff 17 as of July '88 that the alternative could not be implemented 18 in time?
I'm not using exact language.
Does not the basis 19 for their contention as it came in include statements about 20 that aspecn or about the fact that the Staff should have 21 done it earlier, should have come out with its EA son.e time 22 ago, and that if it takes more than six months --
23 MS. JEHLE:
I'm not sure which point to address 24 first.
I think first I'll address the fact that the Staff 25 completed its EA in a timely manner.
The time that it took Heritage Reporting Corporation (202) 628-4888 t
500 1
to complete the EA is a reflection of the demand on time or J
2 the Staff's time and its resources.
I don't feel that there i
l 3
was'any purposeful or neglectful behavior on the part of the l
j 4
Staff to delay its EA.
5 JUDGE BECHHOEFER:
But if we took the'EA as coming i
6 out about approximately six months after the application 1
7 were filed, then the question becomes whether the same 8
statement could have been properly made, 9
MS; JEHLE:
I'm not sure why --
10 JUDGE BECHHOEFER:
And we have examples provided 11 us -- I'm just taking six months as a general average.
But
)
12 we have had examples provided to us by the Interveners where I
l 13 the Staff's EA came out about six months after the 14 application was filed, five or six months.
15 MS. JEHLE:
I think that the difference in the 16 time that it takes EA's to be issued is a reflection of the 17 demand on Staff time and perhaps the intricacies of the 18 particular amendmen't.
19 Furthermore, the Diablo Canyon EA -- there appears 20 to be quite a bit of problem on that EA.
I don't think that 21 that is a good example of the time that would be proper, 22 proper for the EA.
23 JUDGE BECHHOEFER:
Well, how about Millstone, and 24 how about St. Lucie?
These are sent to us as well.
25 MS. JEHLE:
Millstone was an uncontested case.
Heritage Reporting Corporation (202) 628-4888 1
u-_--_--_---_----_----------
b
501 1
JUDGE BECHHOEFER:
Well, should the EA take less 2
time in an uncontested. case than a contested case, 3
particularly where the contest deals with' alternatives, one 4
paragraph on alternatives?
i 5
MS. JEHLE:
Right.
I think it. takes Staff time 6
and resources to address contentions raised by interveners.
7 It's not that they're going to necessarily put more or less 8
time into a particular EA, depending on whether there's.
9 intervention.
It's just there's x-amount of Staff. time, 10 there are "x" staff resources, which are pulled out more 11 extensively when there's intervention.
12 JUDGE BECHHOEFER:
Yes, well, forget about one 13 paragraph on dry cask storage..Just thinking what had 14 issued six months after it came out rather than two years or 15 two and a half years, we would have had a half a sentence 16 then.
Is that what you're saying?
17 MS. JEHLE:
No.
No, I don't think that the EA 18 would have been different it had come out six months or two 19 years after the amendment.
Is that what your question is?
20 JUDGE BECHHOEFER:
Yes.
21 MS. JEHLE:
No, I don't think we would have made 22 it any shorter if it had come out a little earlier.
But I'm 23 not sure what issue you're addressing right now.
I don't 24 think that the timing of the Staff's EA is an issue.
25 JUDGE BECHHOEFER:
Well, the timing is an issue Heritage Reporting Corporation (202) 620-4888 k
502' 1
only because of the statement in it that from that date 2
forward, there wasn't time to implement the alternative of 3
dry cask.
If you had done it a year and a half earlier, I 4
don't know whether.there would be enough time or not, but 5
there would be --
6 MS. JEHLE:
A year and a half earlier there-7 probably would have been less information available on' dry 8'
cask storage.
I think that the dry cask storage research 9
was probably a little less further along.
10 But I don't think that'the Staff --
You.know, we 11 can get down to matters of months and,.you know, a year in l
l 12 the timing.
I still think probably in 1986 the Staff's 13 position still would have been that there was a possibility 14 there wouldn't be sufficient time to. complete the design, 15 licensing and construction-of a dry cask storage facility.at 16 Vermont Yankee.
17 Furthermore, Your Honors, the Staff's position is 18 that there was no reason to consider in detail alternatives 19 or their consequences, because the spent fuel pool' expansion 20 creates no significant impact on the environment.
There's 21 no significant impact due to the proposed action.
22 Therefore, there was no requ,irement to go further than the 23 normal discussion of alternatives which appears in the 24 Staf f's EA's.
25 JUDGE LINENBERGER:
Ms. Jehle, claims of surprise Heritage Reporting Corporation (202) 628-4888 1
l
- l
503-1 on anybody's part -- I don't single you out here -- I. find 2
sometimes bothersome.
There are times when I hear' attorneys 3
go at great length to explain their version of what was in 4
the minds of people who wrote and spoke.about certain things 5
at certain times.
And there are times when'I hear 6
attorneys, in essence, sit back and refrain from doing that 7
and then come in and claim surprise because they didn't 8
anticipate.
9 Well, I don't know.
Perhaps this is legitimate.
10 But, nevertheless, it bothers me because:there seems to be 11 very detailed second guessing and anticipating in some 12 circumstances, none in others.
And the. cases where there's 13 none, very often the claim of surprise comes in.
Maybe it's 14 genuine; I don't know.
15 But I'm really curious here when the Staff -- now j
16 I do spiral down to you, to the Staff --' claims surprise 17 with respect to what was in NECNP's collective minds.
Can 18 you embellish on that just a bit
'1 19 MS. JEELE:
Yes, sir, I can.
I agree with you, l
1 20 there is potential abuse to the claim of surprise.
- However, 21 in our circumstance the Staff had no reason to believe that I
22 the Interveners would rely on severe accidents as a basis 23 for Environmental Contention 3, because it had' specifically 24 been excluded by the Board in its order LBP-88-26.
And when 25 the whole issue was referred to the Appeal Board for Heritage Reporting Corporation (202) 628-4888
-- Q
504
]
1 consideration in LBP-89-6, that further gave-support to the 2
Staff's belief..
.o 3
We don't claim surprise'that severe accidents are 4
at all involved in the proceeding.
However, we did not 1
5 believe that they would be a basis for Environmental 6
Contention 3.
We prepared no discovery.
In fact, discovery
-1 7
'was delayed until the Appeal Board responds ~on Environmental j
8 Contention 1.
We not only didn't initiate any.' discovery, we 1
j i
9 felt no obligation to, and perhaps further we were told to
)
10 defer discovery on.that issue until later.
?
11 JUDGE LINENBERGER:
Thank you.
l 1
12 JUDGE BECHHOEFER:
Do you have.t. ore?
I 13 MS. JEHLE:
No, Your Honors, I'm through and would 14 like to state again that the NRC Staff moves to strike the 15 testimony of Gordon Thompson and his rebuttal testimony.
16 JUDGE BECHHOEFER:
Right, both in their entirety.
17 MS. JEHLE:
Yes, in their entirety.
18 JUDGE BECHHOEFER:
Okay, Ms. Curran?
19 I guess I'll hear from the interested states later 20 if you have anything to add, unless you've decided to 21 support the Applicant and Staff, in which case I'll hear you 22 now.
23 MS. CURRAN:
I' d like to address four points that 24 have been raised this morning:
First, what kind of showing 25 is required by NECNP under Section 102 (2) (E) of NEPA in I
Heritage Reporting Corporation (202) 628-4889 El___________.__
.nl
d 505 l'
order to-trigger the~ requirement to take a hard look atL I
2 alternatives to the proposed action;.second, why the 3
testimony of Dr. Thompson is: relevant to that determination-a 4
and is not barred by the deferral of the severe-accident 5
issues to the Appeal Board; third,1why the Thompson i
6 testimony is related to this : operating license: amendment.
j 7
Fourth, I want to address the obviously-superior standard' 8
briefly, and I guess there's a fifth one, which11s.Dr.
9 Thompson's qualifications.
I 10 I' ll start. with. the applicable' standard. under 11 Section 102 (2) (E), which. requires the NRC1 to - consider 12 alternatives where there is unresolved conflict'concerning' 1
13 alternative uses of available resources.
Both the NRC Staff 14 and Vermont Yankee have claimed that we have not identified 15 a resource.
It's very clear that7we have.
The resource is 16 the cooling capacity of the spent fuel pool during an 17 accident.
The issue that we have raised is whether or not 18 the air flow in the spent fuel pool'will be sufficient to I
19 prevent the occurrence of a Zircoloy cladding fire if 20 there's an accident in the pool.
21 That constitutes a conflict in several ways.
22 First of all, we have raised this as a debate that exists f
23 within the agency, as a serious. safety concern that.has been 24 raised not only by our expert, but by the NRC Staff's own 25 contractors as well.
We have established that there is an Heritage Reporting Corporation (202) 628-4888 x
l 1
1 506 I
1 alternative way to achieve the same goal of providing for l
2 additional spent fuel storage at Vermont Yankee.
And we j
3 have also established that that alternative is safer.
j i
4 JUDGE BECHHOEFER:
Is the resource a kind of l
1 5
resource which is contemplated by Section 102 (2) (E) and the l
6 Part 51 implementing regulations?
j 1
7 MS. CURRAN:
Certainly there's no limit on how one
]
1 8
would characterize that resource to be, whether it's using
~
f 9
additional steel or concrete.
The resource is --
j 10 JUDGE BECHHOEFER:
Do you believe the Appeal Board l
11 has limited it to that type of material?
}
(
12 MS. CURRAN:
No, I don't.
13 JUDGE BECHHOEFER:
Steel or concrete?
j 14 MS. CURRAN:
No, I don't.
As a matter of fact, 1
)
15 the Appeal Board in its decisions just continually says no 16 one has shown an unresolved conflict here, but they haven't 17 ruled out the kind of conflict that we're showing.
18 I think that NEPA is very clear that if one can 19 show an environmentally preferable alternative -- and by 4
20 that I mean that the intervenor has the burden of going j
21 forward with an environmentally preferable alternative --
l 22 it b5comes the burden of the NRC to take a hard look at that l
23 alternative.
That has not been done here.
That obligation 24 exists independent of whether this Board considers the 25 potential impacts of the spent fuel pool expansion and Heritage Reporting Corporation (202) 628-4888
?
i 4
507 1
1 reracking to be significant. lSection 102 (2) (E) is much l
i 2
broader in its scope, in the requirement for an-l 3
environmental impact statement.
4 I'd also cite to the case Bob Marshall Alliance v.
5 Hodell, 852 F2d 1223 and 1229, which held that where the g
6 objective.of an action can be achieved in one of two or more 1
7 ways that will have differing impacts on the environment, 1
8 the 102 (2) (E) requirement comes into play.
Obviously, the.
l l
9.
significance of those' impacts is not in question here.
The' I
10 question is whether the impacts are different.
l 11 JUDGE BECHHOEFER:
Do you draw, then, any
-12 distinction between -- I_think Mr. Gad referred to the land 13 which was involved in that case and the resource that's 1
14 involved in this one.
I think the case talked abo"t it as i
15 the present and future uses of-Deep Creek, which was the i
16 area in question.
Is there any difference there from what l
17 we have before us?
18 MS. CURRAN:
Well, I think the concept of that 19 case was that the use of the resource could lead to a 20 potentially harmful result, which is what we're talking 21 about here, that we think that the use of the circulating 22 air in the spent fuel pool, the inappropriate use of that 23 resource, could lead to the potentially harmful result, the 24 potentially catastrophic result, of an accident in the spent 25 fuel pool.
Heritage Reporting Corporation (202) 628-4888 l
i
0 l
' i 1
508 L
1 MS.. CURRAN:
Which brings ~me~to thefdifference t
- 2 between the issues that?are beforeithe-Appeal. Board-'and the 3
. issues that are before the Licensing Board;here.
What h.s
)
4 been referred:to the Appeal-Board'isLthe' question.of whether.
5
'thel risk of a.' severe' accident inithe Vermont Yankee spent
~
l
'6 fuel pool can'be considered insignificant.a;Ja matt'r.of law ~
e i
7 for.the purpose of requiring an environmental-impact
~
8 statement.
Such. questions about.the likelihood of such an j
i
-9 accident.could also'have'an impaction the mannerfin which' j
10 alternatives are weighed here.
But the Board need notlgo' I
11 that far in this case to find'that any.CNP has.shown a.
12 conflict over available resources 1and has set'forth afsafer-1
+
13 alternative.
1 14 There'is no need to decide anything about the 15 likelihood of a'apent-fuel pool accident in;this particular 16 proceeding.
The case. law is extremely clear that those i
i 17 questions which relate toothe significance of an impact' are
.{
l 1
18 not at issue where an environmental assessment is concerned.
4 1
19 JUDGE BECRHOEFER:
When you talk about "the safer i
20 alternatives," absent the resolution of the question which' 21 has been referred to the Appeal Board, may we decide.that 22 one alternative is safer than another, based on severe i
23-accident considerations?
Can we even assume that one is 24 safer than another, aside from the' severe accident claims?.
25 MS. CURRAN:
Aside from the severe accident Heritage Reporting Corporation (202) 628-4888 I
~
~
l' 1
509 l
1 claims?
2 JUDGE BECHHOEFER:
Yes.
3 MS. CURRAN:
Well, first of'all, even'if you're 1
4
.considering severe accidents, the probability of a' severe.
l 5'
accident ' doesn't enter into the calculation under 102 (2) (E) 6-of whether such an accident is possible,-is a potential harm l
7.
that'could occur.
But', assuming that the entire subject l
1 8
matter of severe accidents was' referred to all purposes, all-9 conceivable purposes, to the Appeal Board, that is not the 1
10 exclusive basis of our testimony.,As discussed in our
)
i 11 filings, there are a number of ways in which such an:
l l
12 accident could occur that would not involve' core melt, which
]
13
~is the definition of a' severe accident; it requires a core l
14 melt to occur, t
15 JUDGE BECHHOEFER:- Well, isn't like the' cask drop 16 accident, which is referred to ask one of the ways that the 17 accident could arise, wasn't the source of the statements 18 there which, I think, derive from NUREG/CR 5176, which is 19 the Lawrence Livermore study, isn't that whole study based 20 on severe accidents?
If you look at the abstract, it says 21 it relates to generic issue 82, Beyond-Design-Basis 22 Accidents.
If you get into the executive summary, it talks 23 about beyond-design-basis accidents in.the fuel pool.
I 24 think it comes up in the conclusion, and maybe throughout 25 the work.
Isn't the whole work upon which the claim of Heritage Reporting Corporation (202) 628-4888 l
i
_--______________A
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510 l
1 these accidents is based a discussion of'beyond-design-basis 2
accidents?
l 3
MS.. CURRAN:
A beyond-design-basis accident.is not l
L 4
necessarily'a: core' melt accident.-
I think.the Appeal Board 5
made clear that.what it considered to be before them was a 1
6 severe core melt accident.
In' fact, it rejected other parts 1
7 of NECNP's basis as being simply another way to state:"a 8
core melt accident." 'So'the Appeal Board said.several times 9
that that is the issue that's before them.
We are talking j
10 about a number of other ways that such an accident could 11 occur that, Lwhile they' re beyond design basis, they don't-12 necessarily involve core melt.
f 13' JUDGE BECHHOEFER:
Well, isn't the rationale for 14 including them or excluding them almost the same, in terms I
15 of what can be discussed under NRC. regulations?
At least 16 theoretically, if it's beyond design basis, I don't think we i
17 can look into it.
18 MS. CURRAN:
I don't think that you can go that l
19 far.
I think the Appeal Board's decision is based on the 20 severe accident policy statement, which is directed only at 21 core melt accidents.
If we're talking about what the notice 22 was to the other parties as to what was referred, the term 23 was used, " severe accident," which has a meaning to it.
The 24 Appeal Board has discussed the meaning of that term'in 25 rejecting other aspects of this contention's basis.
l l
Heritage Reporting Corporation (202) 628-1888 l
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l 511
)
i 1
JUDGE BECMHOEFER:
Right.
Because we did send up.
)
2 your severe accident basis for this contention, as you know, l
3 because that was referred along.with the environmental j
l 4
contention 1, which specifically involved the severe
(
l 5
accident.
To'the extent'it was the basis of'your j
~!
6 contention, I have probably referred it now.
7 MS. CURRAN:
Well, as we argue in our' briefs, what.
I
~
8 we think we.s referred-was the issue of the significance of 9
the impact of that accident, whether it is remote and 10 speculative and therefore not cognizable under NEPA for i
l 11 purposes of preparing an impact statement.
Now,' in your 12 decision, you noted that these questions'of significance 13 might affect-the consideration of alternatives in weighing 14 alternatives under the environmental assessment, and it may i
15 be that this Board cannot weight alternatives in this case 16 without getting into questions of likelihood of the 17 accident.
But you don't need to go that far here.
18 JUDGE BECHHOEFER:
Isn't it true that, if an j
i 19 accident is so unlikely that it is remote and speculative 1
20 under NEPA, that we have no basis for considering it at all?
l 21 MS, CURRAN:
I don't think that's at all clear.
I I
22 JUDGE BECHHOEFER:
Well, that's the reason I'm 23 asking you to explain.
24 MS. CURRAN:
First, all the cases in which this 25 has come to the NRC and to the courts have involved I
I Heritage Reporting Corporation (202) 628-4888 l
L
l 512 L
i i
1 questions of whether an accident can be considered remote
]
)
2 and speculative for purposes of requiring an environmental
)
l 3
impact statement.
In other words, can you even get past Go q
1 4
in getting a hearing on "what is the significance of the 1
5 impact" for purposes of requiring an environmental impact i
6 statement?
They don't address the question of "how do you 7
deal with so called insignificant impacts," which we 8
consider to be equivalent to remote and speculative impacts.
~
1 9
By answering the question --
l 10 JUDGE BECHHOEFER:
I'm not sure that they 11 necessarily follow.
" Remote and speculative" may mean 1
12 there's some question about whether it will ever happen.
l 13
" Insignificant" means it'll happen, but it's not very 14 important.
That's at least the way I view it.
But you 15 could clarify me, maybe.
i 16 MS, CURRAN:
The focus of this case has been l
17 whether or not the past Commission precedent precludes any 18 CNP from getting a hearing on whether or not the likelihood 19 of a severe accident in a spent fuel pool is great enough to 20
-- whether that likelihood can be considered in a hearing as 21 being great enough to require the preparation of an impact 22 statement.
The issue of whether these impacts are 23 insignificant isn't before the Appeal Board.
We're saying 24 that one has to separate out what are the actual issues that 25 are being considered by the Appeal Board, and here what we Heritage Reporting Corporation (202) 628-4888
-1
,l 513 1
have is a decision under 102 (2) (E) that doesn't involve the 2
significance of the impacts at all.
If there is a 1
3 potentially harmful result, if there is a safer alternative, i
4 regardless of the significance of the avoided impact, then J
5 the. agency must consider safer alternatives.
i 6
(P ause. )
l i
7 MS. CURRAN: 1I'm trying to think of another way to I
l 8
say it.
')
9 JUDGE BECHHOEFER:
Okay.
1 l
10 (Pause. )
11 MS. CURRAN:
Well, maybe I've said this before, 12 but I'll try it again.
The question before the Appeal Board 13 is whether, as a matter of law, a severe accident in a spent 14
. fuel pool can be considered for purposes of requiring an 15 environmental impact statement, and that the' consideration l
16 of alternatives under 102 (2) (E) does not involve any 17 questions of significance.
It involves considerations of 18 potential harm, and I think the potential harm has been well 19 established here.
The Board can take judicial notice of it.
20 In the environmental assessment, on page 11, the NRC Staff 21 discusses the potential impacts of a Zircoloy cladding fire 22 in the spent fuel pool, and then basically concludes that 23 compliance with the general design criteria consider all 24 reasonable events.
Therefore, the Staff concludes that the l
25 reasonable foreseeable impacts attributable to severe Heritage Reporting Corporation (202) 628-4888 x
i 514 q
1 accidents are not significant.
2 We' re not debating the significance of those a
3 impacts here.
We're saying that the very existence requires 4
the NRC to look at an alternative, if we can come forward 5
and show that a safer alternative exists.
And we have shown j
6 that dry cask storage is not vulnerable to the accident 7
risks that plague the spent fuel pool expansion.
8 I would add that we must come forward with this
~
l 9
information is safer, because I think NEPA does provide that i
10 the agency's not required to look at alternatives that are 11 not preferable.
12 JUDGE BECHHOEFER:
Well, are we required to look 13 at the alternatives and then determine whether they are 14 preferable?
That's the first part of my question.
i 15 MS. CURRAN:
Well, yes.
Yes, you are.
We're l
16 fighting an uphill battle against the Staff, which says 17 there are no preferable alternatives, and we have had the 18 burden of going forward here to introduce an alternative 19 that is.
But certainly it is the NRC's responsibility to 20 look at preferable alternatives.
21 JUDGE BECHHOEFER:
Right.
Now, if we decide that l
22 the Staff should have looked at the alternative in more 23 detail, the dry cask alternative at this stage, what should l
24 we do?
Do we have authority to deny the application, or-25 does our authority stop at saying, "Well, an EA has to be I
l l
Heritage Reporting Corporation j
(202) 628-4888 I
i
515 1
revised, at least, to cover these things"?
Beyond that, 2
could we just put in various information which stemmed from 3
affidavits and other submissions and say that this is an EA 4
revised; this will constitute the EA revised?
5 MS. CURRAN:- You certainly have broad authority to.
6 revise the environmental assessment, and you have the 7
authority to reject the-application if you think that the
~
8 environmental assessment'doesn't support it..._
9 JUDGE BECHHOEFER:
Well, could we-reject the 10 application on environmental grounds if we found that the 11 application involved no significant environmental impact?
12 MS. CURRAN:
Yes, but you would have to make the, 13 additional finding that,' regardless of the fact that there 14 were no significant impacts, that section 102 (2) (E) was not 15 satisfied, in that the agency failed to take a hard look at 16 environmentally preferable alternatives.
I think that'would 17 have to --
18 JUDGE BECHHOEFER:
Well, if we get that, could we 19 reject the application, or would we have to either revise 20 the EA ourselves to give it the hard look or send it back to 21 the Staff to do it?
What are our options?
22 MS. CURRAN:
Well, I think there'3 a limit to how 23 much you can revise the environmental assessment.
At least 24 for the purpose of confirming the application, the Staff has 25 an independent obligation to verify the data submitted by Heritage Reporting Corporation (202) 628-4888
516 1
Vermont Yankee.
2 JUDGE BECHHOEFER:
The Staff or the Commission?
3 MS. CURRAN:
Well, the NRC.
You have to rely on 4
the Staff's evidence, I think.
You can't make up your own, 5
and you can't rely exclusively on Vermont Yankee.
6 JUDGE BECHHOEFER:
Well, could we rely on yours?
7 MS. CURRAN:
We' d love it, but -- (Pause. )
l 8
JUDGE BECHHOEFER:
Well, could we say that, except 9
for accidents, the two alternatives are both environmentally 10 benign.
Could we take that?
11 MS. CURRAN:
That's certainly agreed by all of the 12 parties, and I don't think that's something that's subject 13 to verification, but I think there are two other issues that 14 the Staff has not looked at sufficiently -- well, three.
15 First of all, the safety issue surrounding dry casks and j
l 16 reracking.
Second, the costs of dry casks have not been I
17 verified by the Staff independently.
In their EA and in 18 their direct testimony, they made some generalizations about 19 the additional cost of dry casks, and in their rebuttal,
)
20 they simply accepted what Vermont Yankee said.
This doesn't i
21 comply with the requirement of NEPA for taking a hard look, I
22 and it also failed to acknowledge that there's a number of 23 variables in that cost estimate that really need to be dealt 24 with on a site-specific basis, most importantly that there's 25 a shielding structure that vermont Yankee claims may be Heritage Reporting Corporation l
(202) 628-4888
l 1
d 517 l
1 needed,.and one would have to take a site-specific'look-at 1
2 that shielding structure to determine if the $5 million
]
3 expenditure was required there, and certainly where the 4
costs are as close as~they are here that would be an a
]
l 5
important thing to verify.
6 JUDGE BECHHOEFER:
Could we call that a minor
]
]
7 matter and say, "Get up there and say something about it" to
~
8 the Applicant or the Staff or.your witnesses,. for that 9
matter?
l 10 ME. CURRAN:
Well, certainly, whatever they say j
11 could be said here if it was based on some review that had i
12 been conducted, but I'm not sure on what basis they'd be' 13 able to testify here that they'd verified the facts.
14 The second issue is on the timing of the licensing 15 review.
The Staff stated in its testimony that there were 16 certain aspects of the design and construction, I think, of i
17 the independent spent fuel storage facility that would be l
18 site-specific, but conceded that they had not made that kind I
19 of site-specific review that would be required before the 20 Board could find that they had done everything possible to 21 license this thing in a timely manner.
22 JUDGE BECHHOEFER:,You've sent us examples of 23 cases where the Staff has produced its environmental 24 assessment in spent fuel cases on a much more expedited I
25 basis than has happened here.
Do you know whether there was Heritago Reporting Corporation (202)-628-4888 l
l l
L__ _
n
q l
l 518 l
1 any motive for delaying, other.than' workload considerations, 2
which delayed the issuance here?
Do you have any reason to i
3 believe that there was anything other than pure staffing 4
availability and that kind of thing; all government agencies 5
have had to compress a little bit,.I think.
]
6 MS. CURRAN:
I have a theory about how this j
i 7
happens, and that is that, when the Staff gets an i
)
~
8 application for a spent fuel pool expansion, it looks at the j
i 9
date at which the applicant needs it and then decides on 10 that basis how to prioritize the environmental assessments.
i i
11 If it looks like it's a ways off, then one can put it on the
)
12 back burner and do some other, more pressing matters first, l
i 13 and then, when you do an environmental assessment, lo and l
14 behold, two years later there's not time enough left to l
l 15 really look at the alternatives.
It certainly is extremely l
I 16 unfair to the public, which has an interest in the close i
17 examination of those alternatives.
Even as we speak, the l
18 clock is ticking on the time left to license dry casks for 19 Vermont Yankee.
That's one of the reasons we are urging you 20 to make whatever decision you can here on the preferability l
21 of dry cask storage, and at least to order the Staff to 22 supplement this environmental assessment, to do further 23 study of it, so that we can have some result in time to make 24 a judgment on whether dry cask is the preferable option.
25 I'd like to note, in that context, that the Heritage Reporting Co rporation (202) 628-4888 l
1 519 1
licensee and the NRC Staff have said that the capacity of-i i
2 the pool will be reached in 1930, in the sense that, in 3
1990, they will reach the point at which they have one full j
4 core offload left.
In point of fact, I believe the real
~
5 crunch doesn't hit until a year and a half later, when 6
you' re ready to offload the next third of the core into the 7
pool.
At that point, when you put that' third into the pool, 8
you would lose your full core offload capacity, but there is 9
another year and a half in there to play with before the 10 capacity of the pool is reached.
i 11 JUDGE LINENBERGER:
Mrs. Curran, with respect to 12 preferability considerations, I seem to recall soms language 13 in one of NECNP's submittals to the effect that leaving the 14 present rack configuration as is but resorting to dry cask 15 storage for the 800-some additional fuel elements that are 16 anticipated to go into the racks as currently configured, J
.17 putting those 800-some fuel elements in dry casks would be 18 viewed by NECNE as a preferable option.
Do I understand 19 that correctly?
20 MS. CURRAN:
Yes.
We really have identified two 21 dry cask storage alternatives that we think should be l
considered in the environmental assessment.
The first is 22 23 putting the incremental 870 spent fuel assemblies into casks l
24 and leaving the new rack as is in the pool.
This would 25 diminish the risk of a spent fuel pool fire at vermont Heritage Reporting Corporation (202) 628-4888 i
t
h l
l 520 1
Yankee.
However, there's an alternative that would, for all 2
intents and' purposes, eliminate the risk.
Considering that-3 this spent fuel pool application involved the removal of an-4 existing rack and the replacement with another rack,.that 5
it's within the Board's purview'to consider what kind of a 1
6 rack would be most appropriate, would be the safest rack to 7
install there, and that the safest alternative would be to 8
install a low-density rack of the' kind for which Vermont'
~
9 Yankee was originally licensed, which would hold, say, 600 10 fuel assemblies, and put the remainder of the spent fuel in 11 dry cask storage.
12 JUDGE BECHHOEFER:
Well, do you think that really 13 is within our alternatives?
Because if we denied the 14 license application, you'd still have authority to store 15 2000 elements.
Whether or not the type of rack was*even 16 specified I'm not sure,.but there was a configuration, I i
17 believe, provided to the Staff at that time.
If we denied 18 everything that's on the table now, all we would go back to i
19 is 2000.
20 MS. CURRAN:
Well, what's happened here is that a l
21 rack has been removed, and an application has been made to 22 put in a new and different kind of rack.
At that point, you 23 have the authority to consider under NEPA whether that is 24 the safest means for providing for the general goal of spent a
25 fuel pool storage at Vermont Yankee.
Now, that's part of Heritage Reporting Corporation (202) 628-4888
521 1
the application that can'be considered. 'Perhaps, if it was 2
the same rack --
1 l
3 JUDGE BECHHOEFER:
Well, technically, the l
d 4
application is merely to change a number,~ but it is I
5 supported by an application that does describe some racks.
1 6
MS. CURRAN:
Well, we've already, I think, in 7
previous hearings before you discussed our view that.to 8
separate these two amendments is really segmentation of an
~
9 environmental impact, that the rack itself has an impact in 10 addition to the spent fuel that's being put in the rack, and j
j 11 that we are entitlest to consideration of alternatives to
]
12 installing that rack.
These things can't be separated.
13 JUDGE BECHHOEFER:
Right.
Of course, you'had no 14 contentions dealing with the racks, themselves.
15 MS. CURRAN:
Well, that was partly because that 16 wasn't noticed, I believe.
17 JUDGE BECHHOEFER:
Oh, yes.
When the original l
i 18 application was filed, there was no contentions saying, 19 "These racks are bad becnase they're made of paper" or "too 20 close together" or whatever you want to add.
l 21 MS. CURRAN:
Well, perhaps I'm remembering wrong, 22 Judge Bechhoefer, but my rec,ollection is that, when the e
23 original application was filed, it said, "We want permission 24 to add 870 assemblies to our fuel storage pool."
Then came l
25 along amendment 104, which I' m remembering --
Heritage Reporting Corporation (202) 628-4888
(
c
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I 522 1
JUDGE BECHHOEFER:
Well, amendment 104 was the l
i 2
result of the Sholley application and the no significant 3
hazards and all that kind of stuff.
4 MS. CURRAN:
That was an application for a new
]
5 rack.
6 JUDGE BECHHOEFER:
That we can't even look at.
We 7
looked at it to the extent we could, maybe a little.beyond
~
8 the extent we could,. but we looked at it anyway, and we '.
j 9
issued a rule that we found the Staff had gotten out its 10 environmental assessment by that time, and therefore we I
11 didn't have any authority to disturb what had been done.
12 But there was no contention talking about racks themselves, i
13 either before or after.
There was no conte:ation that said, 14 "You shouldn't put these two racks in, because they're too 15 close together."
Whatever reasons you would have given for 16 that.
Or there was no contention that the racks should have 17 been made of some other metal, or wood, or whatever.
18 MS. CURRAN:
Considering that the racks are l
19 necessary for the storage of the additional assemblies, I.
20 would think that would be subsumed into the question of the 21 effects or alternatives to the way they were being stored 22 that would involve how they were being stored, as well as 23 many.
24 JUDGE BECHHOEFER:
Well, for instance, your 25 contentions would seem not to raise any question at all Heritage Reporting Corporation (202) 628-4888 l
l m
'523 1
about whether 2000 assemblies-could be. stored in the new 2
racks.
That doesn't' appear to be part of'your case at all, 3
or it didn't at:the time. :It could have been'a contention 4
that these racks are too close together.and'should not be 5
allowed for that reason, because they're too.close together, 6
oor for some other reason:. -they lack braces, or they're 7-going-to fall,d0wn, or whatever.
Those are all potential
~
8-contentions.
We did notisee, and we still haven't seen,-
9-anything like that.,.I guess contentions accorded by.some 10 basis singly,Lthe elements would.be too close together,'we 11 asked a number of questions about that,.but that. technically; 12 was not submitted as a contention.
So that's why I'm 13 wondering right now whether we would have anything to say at 14 all about the racks themselves, as distinguished from the 15 general potential for the list of accidents, which is before 16 the Appeal Board.
17 On the comparison af alternatives,~I'm'not'sure
- p.
18 what we should put in there.
That's what we're trying.to 19 find out.
20 MS. CURRAN:
I think that, with the; addition of 21 870 assemblies to the spent fuel pool, our concerns would 22 cover not only the literal fact of their addition, but the l
l l
23 manner in which they were added, also, and that this'would' t
24 simply encompass -- the contention encompasses the manner in 25 which the assemblies are added.
Heritage Reporting Corporation (202) 628-4888 r
524 1
JUDGE BECHHOEFER:
Well, would you object, for 2
instance, to 300 more -- that's just an arbitrary number --
3 300 more elements in the new racks?
That would even carry 4
us far enough to get dry cask storage installed in time.
5 MS. CURRAN:' I'm not sure I understand your 6
question.
7 JUDGE BECHHOEFER:
Well, I'm trying to see what 8
the scope of your objections are.
As I said, if you object 9
to --
If we agreed that the Staff couldn't license dry 10 casks in time to preclude the need for all of the 870, or 11 whatever it is, what if we should say, "Okay, you can put 12 300 in there.
You do dry casks for the rest."
Do you think 13 that's an option?
14 MS. CURRAN:
We'd certainly discuss that.
15 JUDGE BECHHOEFER:
That would carry it forward a 16 little bit more.
I haven't figured it out.
I guess you 17 figure 130 a year or less.
18 MS. CURRAN:
It sounds like a compromise that I'm 19 not sure is a legal solution to the problem.
20 JUDGE BECHHOEFER:
I'm not sure it is, either.
21 I'm hypothesizing a little bit.
22 JUDGE LINENBERGER:
Trying to latch onto this 23 problem from a little different direction -- and I think I 24 sense some interchanging of carts and horses from some of 25 the previous discussions -- one thing that I don't think Heritage Reporting Corporation (202) 628-4888
525 1
I've heard very much of anything about is the question of 2
whether any dry cask storage'would require the: acquisition 3
of land.
Along with that, I have serious questions about 4
the extent to which this Board can commit anybody to spend 5
money or land.
I just don't make that as a bald statement; 6
I make it as a question.
Do you have any comments there, 7
Mrs. Curran?
8 MS. CURRAN:
Yes.
In the Licensee's cost 9
estimates for dry cask' storage, they did not include any l
10 estimates for the purchase of additional land.
11 JUDGE LINENBERGER:
And how did you interpret 12 that?
13 MS.' CURRAN:
It led me to infer that they didn't-14 consider it was necessary, that they were making a careful 15 look at what might be needed, and they didn't think land was 16 in order.
17 JUDGE LINENBERGER:
Thank you.
l 18 JUDGE BECHHOEFER:
Well, a related question -- but i
19 I guess I was going to say that we got to the merits of the l
20 contention.
And I guess I will say this.
I'll state that I i
21 am not sure what effect we, as being part of NRC, could give to the apparent agreement between the Applicant and the 22 23 State of Vermont concerning offsite releases.
That I wasn't 24 going to get into until we go to the merits, but it is a 25 question on the merits that we would have to at least ask Heritage Reporting Corporation (202) 628-4888 l
\\
526 1
questions about.
2 MR. GAD:
When's a good time to take a lunch 3
recess, Your Honor?
l 4
JUDGE BECHHOEFER:
It's getting that time.
I 5
think before we continue Ms. Curran's presentation and 6
before we hear from the other parties and hear some 7
responses, we will break.
I hadn't noticed the time, but it 8
was getting there.
~
9 (Whereupon the lunch recess was taken.)
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation (202) 628-4888
'I 527 1
1 JUDGE BECHHOEFER:
Ms. Curran, do you.have.
i 2
anything~morecyou want:to add?
3 MS. CURRAN:
I have.two more points I want:to 4
cover.
First is the obviously-superior standard.
Exceptl 3
5 for the recent Three Mile Island decision, we're not aware-6 of any.other case -- and we've looked atimany -- in.which..
I 7
the NRC has applied the obviously-superior standardLto a
~
8 design ~ issue.
As a matter of fact, we;have seen1 cases'where.
9 two different NEPA standardsLwere applied.
Say,~in the'same 10 case,a site would be considered under.an obviously-superior 1
- 11 standard, but a design. issue would be considered under an:
iI 12 environmentally preferable and cost-effective standard.
So 13 I don't think that the obviously-superior-standard is i
14 applicable here.
l 15 I'd also like to' address the questions about i
16 Dr. Thompson's qualifications.
I don't think there's any 17 question here that Dr. Thompson is qualified in every.
j 18 respect to testify on these issues.
He not onlyzhas an 1
-19 array of degrees and graduate degrees, but he.has had 10 20 years of experience in this field, including testimony on 21 the very issues that concern us today.
22 With respect to his familiarity with the' issues 23 before the Board, a number of the studies on which 24 Mr. Thompson relied in-his testimony concern.the vermont 25 Yankee plant:
the Pisano study in 1989; also the Exhibits Heritage Reporting Corporation (202) 628-4888 m
D' 528 i
)
1 Nos. 6 and 7 are specific to Vermont Yankee.
But most
]
i 2
importantly, nothing that Vermont Yankee has stated in its
)
3 affidavits have substantially changed Dr. Thompson's 4
conclusions about his testimony.
His testimony remains the I
5 same.
i 6
There was one issue, and that was the cask drop, 7
which he had presumed to be a beyond-design-basis accident s
8 in part because the regulatory standards for cask drop give 9
a licensee two ways of ensuring against cask drop.
One is 10 to provide single-failure proof equipment, and the other is 11 to provide a spent fuel pool that is resistant to the force 12 of a cask drop.
So that it was perfectly reasonable to 13 presume that the design basis for Vermont Yankee would have 14 been a design of a spent fuel pool that was resistant to 15 cask drop, which was shown to be not the case in the study 16 that he relied on.
17 That's all I have.
18 JUDGE BECHHOEFER:
All right.
But the cask drop 19 there did have a fairly -- I won't say " remote", but a 20 fairly low probability of occurrence, I believe.
I think it 21 was identified as 10 to the minus-8, I think was the 22 probability of these things identified in that study, which 23 is not too likely to occur.
I won't say it's unlikely, but 24 it's not too likely to occur.
25 MS. CURRAN:
Well, again there we have what we Heritage Reporting Corporation (202) 628-4888
529~
1 consider to be an insignificant, possibly,. impact, but an
~
2 impact nevertheless.
And I-think that' study did conclude 3
that if'the cask did drop, that it would affect the 4
integrity of the spenc fuel pool liner.
So these are 5
exactly the. kinds of impacts that Section 102 (2) (E) was 6
designed to consider.
7 JUDGE.BECHHOEFER:
I guess at this point we ought 8
to break for. lunch.
I think we'll be back by 2:15.
Is 9
2:15 okay?
10 MR. GAD:
That's fine'with us, Your Honor..
I'd'do-11 that we do it shorter rather than later.
You know, I'd hate 12.
to have to come back' tomorrow for another 15 minutes.
13 JUDGE BECHHOEFER:
Right.
14 (Whereupon, the hearing in.the above-entitled 15 matter was adjourned,. to reconvene at 2:15 the same day.)
16 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation (202) 628-4888
]
i 530 i
1 A'EIEBHQQH E E E 1.I O H 2
- (2 : 2 6 p.m. )
j 3
JUDGE BECHHOEFER:
Back on the record.
4 MR. TRAFICONTE:
I'm not sure that what I have to 5
say.has to be on the record.
I was actually going to j
6 comment that the Commonwealth and the Applicants here'have 7
had brief discussion about possible settlement of this-8 contention and this dispute, and it might be advisable to l
I i
9 permit us a few more minutes to continue those discussions.
10 (Pause for ' Judges to confer. )
1 l
11 JUDGE BECHHOEFER:
The Board had a few more l
l 12 questions that we wanted to ask Ms. Curran.
After that and j
i 13 after we get done then, before going on to the states and
.j 14 any further comments by the Applicant and Staff, we would 15 allow you to talk about settlement.
Would'the settlement j
i 16 include NECNP or just the Commonwealth?
j l
17 MR. TRAFICONTE:
It would~ include them. 'It'would 18 resolve the matter, let's put it that way.
19 JUDGE BECHHOEFER:
Oh, I see.
20 MR. TRAFICONTE:
It would resolve the matter.
21 JUDGE BECHHOEFER:
Well, let us ask one or two of I
22 our questions first so we can just come to a stopping point.
23 We had neglected to ask these questions.
24 Ms. Curran, you seem to have set up a category of 25 accidents which is beyond design-basis but less than severe.
Heritage Reporting Corporation (202) 628-4888 l
531 1
If that's the way I. understood'you, ' that's the way of 2
referring to it.
I wanted to inquire what the-basis of a
. 3 contention-was for raising a different or this extra 1
4 category of accidents.
It was my understanding thet we had 5
a basis for severe accidents, which we referred to the 6
Appeal Board, and I wasn't aware of any other bases dealing 7
with accidents, at least.
There'were a number of bases 8
dealing with the time it'took the Staff to do its review and I
9 costs, maybe costs.
But I wanted your comment on how we get 10 into some other category of accidents, if indeed it is 11 another category.
12 MS. CURRAN:
Well, just to clarify, I believe it i
13 was in ALAB-876 where the Appeal Board addressed the part of j
14 the basis to Environmental Contention 1 which had dealt with 15 an accident that wusn't necessarily a severe accident.
And 16 the Appeal Board, I think, said:
Well, you're just talking 17 about the same accident as the severe accident, and there's 18 nothing different here.
19 So we did have a basis in the contention that was 20 not a severe-accident basis.
It was an accident that didn't 21 necessarily involve core melt.
Now, the Appeal Board didn't 22 recognize that basis as being a valid part of Contention 1.
23 JUDGE BECEHOEFER:
Well, didn't they reject that 24 separately?
That's my recollection of it.
25 MS. CURRAN:
You had, I think, rejected a basis Heritage Reporting Corporation (202) 628-4888 L___ _ _ _-...
l i
532 J
1 that said -- a within-design-basis a"cident basis, if I'm I
2 remembering it.
3 At any rate, the basis for this contention is --
4 And this basis was admitted by the Board.
You found that we 5
had for pleading purposes shown an unresolved conflict i
6 concerning the use of available resources.
And it was up to 7
us to present some evidence to show the existence of such a 8
conflict, and that is the basis for that evidence.
9 Our distinction between severe accidents and l
10 beyond-design-basis accidents not having core melt 11 consequences, I think that's important for purposes of the 12 idea that somehow the parties didn't get notice that, 13 quote / unquote, severe accidents were not necessarily involggghere.
14 15 JUDGE BECHHOEFER:
Well, isn't it also relevant, 16 to clarify my understanding, that I had referred everything 17 having to do with any sort of an accident up to the Appeal 18 Board, any sort of an accident that was involved in either 19 Contention 1 or the incorporated basis of Contention 37 20 That's what I'm trying to figure out, whether there's 21 anything else, anything that isn't before the Appeal Board.
l 22 MS. CURRAN:
Well,,again, what we consider was l
23 referred to the Appeal Board were considerations revolving 24 around the issue of the likelihood of a severe accident for 25 purposes of requiring an environmental impact statement, and Heritage Reporting Corporation (202) 628-4888
.. x
a
'533 i
1-that the questions of whether a potential accident' exists' 2
here, for purposes of triggering Section 102 (2) (E)~, are' 3
within the purview of this Board here because they-do not 4
depend on the likelihood of the accident. scenario.. Their 5
very. existence, the existence of the risk, and the existence 6
of a safer alternat'iveLthat would avoid or minimize that
..i l
7 risk, is sufficient to trigger 102 (2) (E).
l l
8 JUDGE BECHHOEFER: -Right,.but where is that in
)
I 9
your basis?
The basis for-Environmental Contention 3.
u 1
10 MS. CURRAN: 'Well, the basis being that what we 11 pied was a violation of Section 102 (2) (E), and this Board i
12 found that we had adequately pled a conflict concerning 13 available resources.
And we established the nature, the 14 exact nature, of that conflict in our testimony.
We think l
15 that was a matter to be fleshed out in an evidentiary j
16 hearing, that we were not required to put into evidence in i
17 the basis of our contention at the admission stage what each 18 particular aspect of that conflict might be.
19 I might add that there has been an established 20 requirement to show some kind of scenario in order'to meet 21 this threshold requirement for showing a significant l
22 environmental impact under NEPA.
But I know of no such
.i 23 requirement for demonstrating a conflict regarding the use 24 of availeble resources.
25 JUDGE BECHHOEFER:
Right.
But as I read your Heritage Reporting Corporation (202) 628-4888 t
't I
534 1
basis, you challenge the Staff conclusion, which you deem to i
2 be based on operational inconvenience.
And then you mention i
3 the Staff's failure to issue an environmental assessment in
)
i 4
a timely manner, timely fashion.
You incorporate the bases 5
for the other two contentions byLreference.
In the basis
[
6 for Environmental Contention 11, I had believed we: referred 1
i 7
to everything having to do with or stemming from that, we.
8 referred to the Appeal' Board.
So I was just trying to
]
I 1
9 figure out where in your bases you refer, if you, refer at 1
10 all, to another category of accidents.
I just haven't found 11 that.
i 12 MS. CURRAN:
Well, I think the point of the basis 13 that was incorporated from Contention 1 was that we put the
]
1 14 parties on notice that we did have a difference of opinion 1
15 with the Applicants and the NRC Staff.as to the appropriate j
16 use of the spent fuel cooling pool expansion capacity, and j
l 17 that for that limited purpose that basis can be relied on 18 here because it has nothing to do with establishing the 19 likelihood of those accidents.
20 JUDGE BECHHOEFER:
My other question was in your 21 brief which accompanied the Thompson testimony, you 22 mentioned something about the special obligation of 23 licensing boards under NEPA.
And you cited some sections 24 that I think dealt with construction permits.
I wondered 25 whether you intended to refer to some other section.
In Heritage Reporting Corporation (202) 628-4888
535 1
fact, the one previous to that is the one that gives us 2
authority to go into this kind of an issue, but I don't 3
think it says anything about special responsibilities.
I 4
wondered what your point was there.
5 MS. CURRAN:- My point was that the Licensing Board 6
as an arm of the agency has all the power to make the 7
decisions under NEPA that the staff does and need not review
~
8 the Staff's determination on an arbitrary and capricious 9
basis, that you can make essentially initial determinations 10 as to the costs and benefits of comparative alternatives.
11 JUDGE BECHHOEFER:
Right.
Well, I think that 12 comes under the section previous to the one you cited.
I l
13 think you cited 51.105.
14 MS. CURRAN:
Well, perhaps I cited the wrong 15 provision.
But it was intended to --
At least I think it's 16 true by analogy it does describe in general the Board's wide 17 powers with respect to resolving NEPA issues.
18 JUDGE BECHHOEFER:
Well, I'm not sure.
The 19 51.104 is the only one I know that could probably apply l
20 here.
The 51.104 (b) is, at least I think, the applicable 21 grant of authority.
But I don't think 51.105 applies to us.
22 And to the e'
..t that that's any different, I'm not sure 23 that we should look at it.
24 MS. CURRAN:
I don't believe it is directly 25 applicable in this context, no.
Heritage Reporting Corporation (202) 628-4888
536 1
JUDGE BECHHOEFER:
Well, did you mean us to read 2
51.104?
3 MS. CURRAN:
I wish I could find my copy of the 4
regulations.
5 (A copy was given to Ms. Curran.)
6 MS. CURRAN:
Thank you.
7 JUDGE BECHHOEFER:
51.104 (b) provides authority 8
for us to do quite a bit, but it doesn't really say what 9
we're supposed to do.
It gives us authority or 10 jurisdiction, I guess.
11 MS. CURRAN:
Well, it says, "In the proceeding the 12 presiding officer will decide any such matters in 13 controversy among the parties."
14 JUDGE BECHHOEFER:
Well, that's correct.
That's 15 our general --
16 MS. CURRAN:
But I think that while Section (a) 17 may not be directly applicable, I believe in the case law 18 reviewing environmental assessments that the Board has 19 exercised broad powers to amend environmental assessments 20 and to choose among alternatives.
21 JUDGE BECHHOEFER:
But you aren't saying now that 22 51.105 (a) particularly --
23 MS. CURRAN:
No.
24 JUDGE BECHHOEFER:
-- tells us to do anything.
25 Because it seems not to apply to us.
Heritage Reporting Corporation (202) 628-4888
537 1
MS. CURRAN:
That's right.
2 JUDGE BECHHOEFER:
Okay.
3 (Pause for Judges to confer.)
4 JUDGE BECHHOEFER:
'I think that's all the Board 5
has to ask at this time.
6 Mr. Traficonte,.did you want to break for a while, 7
for further discussions at this point?
~
8 MR. TRAFICONTE:
No, in the interim I think. we've j
9 resolved that we don't.need to take a break.
10 JUDGE BECHHOEFER:
Oh, maybe we should talk some 11 more.
12 MR. TRAFICONTE:
We talked enough in that period 13 of time to know that there's not much point in talking 14 further vis-a-vis settlement.
i 15 JUDGE BECHHOEFER:
Oh, I see.
j 16 MR. TRAFICONTE:
I would be heard, though.-
17 JUDGE BECHHOEFER:
Would you like to make your --
18 MR. TRAFICONTE:
Yes, I want to just make some 19 brief comments on behalf of the Commonwealth in support of 20 the position taken by NECNP.
I want to be brief, but I do 21 want to pick up on two points.that Ms. Curran made and, if I 22 might, offer my view in response to one of the questions 23 that Your Honor raised.
24 In my view, the issue before the Appeal Board does 25 have to do with the significance of severe accidents for Heritage Reporting Corporation (202) 628-4888
___m_.__.____
538 1
purposes of assessing the need to discuss such accidents in 2
an EIS.
And I do believe it's correct to say that the issue 3
is whether they are so remote as to be insignificant for 4
purposes of assessing their discussion in an EIS or their 5
need for a discussion of them in an EIS.
To that extent, 6
Your Honor, I believe they're insignificant.
But to find a 7
severe accident insignificant for EIS purposes is not the 8
same, obviously, as to consider the consequences of such'an 9
accident to be insignificant.
Something can be remote and 10 speculative and, for EIS purposes under NEPA, insignificant.
11 But by no means does that entail the view that 12 environmentally it is insignificant.
13 So that's the difference, I think.
That's the view the Interveners have as to what's before the Appeal 14 15 Board, and what continues before this Board, and why we 16 believe you could continue to assess and take testimony on 17 accident aspects without contravening your certification of 18 the issue to the Appeal Board.
19 The second point I want to make has got to do 20 with --
21 JUDGE BECHHOEFER:
Didn't they refer everything 22 having to do with accidents that had been submitted in this 23 whole proceeding?
24 MR. TRAFICONTE:
Obviously, the Interveners view 25 it differently.
Heritage Reporting Corporation (202) 628-4888
539 1
JUDGE BECHHOEFER:
Yes.
2 MR. TRAFICONTE:
We think that when you let the 3
contention back in and then referred the severe-accident-4 aspects of the contention up, you were referring only the 5
portions of that contention that you'had now put-back in 6
that was caught in the severs -accident logic.
That's why 7
you certified it, because you understood that it was caught 8
by Appeal-Board rulings.
9 JUDGE BECHHOEFER:
So is --
10 MR. TRAFICONTE:
So that.doesn't mean that you 11 necessarily were taking everything having to do with 12 accidents and certifying it, because the Appeal Board is not 13 addressing everything having to do with accidents under 14 NEPA.
It's addressing the remote and speculative aspects of 15 those accidents for purposes of assessing the need for an 16 EIS.
To that extent I believe you did certify it.
17 JUDGE BECHHOEFER:
Right, I think we referred to 18 the need, in the absence of an EIS, to possibly rewrite the 19 EA to include a more descriptive treatment of accidents.
I 20 think wo indicated that if an EIS were not required, the 21 contention still was broad enough -- Contention 1, that was 22
-- to require a rewriting of the EA, assuming it were 23 effective, I mean, assuming the contention were meritorious.
24 MR. TRAFICONTE:
Well, even if that were the case 25
-- and I think we take a different view.
But if that were Heritage Reporting Corporation (202) 628-4888
i L
l 540 1
the case, I still think the distinction lbetween severe' i
~
L 2
accidents and'beyond-design-basis. accidents that Dr.
3 Thompson has'made in the rebuttal testimony is a-legitimate l
i 4
' distinction and would still permit someiaspects ofiaccidents 1
5
'in spent fuel pools to'be before'this' Board _on'the' remaining 6
Environmental Contention No.
3.
l 7
JUDGE BECHHOEFER:- Right, assuming the basis were l
8
.still before us.
9' MR. TRAFICONTE:
Yes.
9%,$.
l 10 JUDGE BECHHOEFER:-
I would have'to say that the
(
11 basis of that, while we referred, I would have to say we 3
12 referrei only a portion of Environmental Contention 1, all
)
l 13 of which was incorporated by reference in Environmental j
j 14 Contention 3.
I1would have to say that we referred only a 15 portion of that up there, notwithstanding anything I said at i
16 the referral order.
Is that what you're suggesting?
j 17 MR. TRAFICONTE:
Well, my response to that would 18 be that even if you use-language whereby you refer a basis, 19 it would have to be understood in the context in which the 20 referral is taking place, and the reasons for which'the i
21 referral is taking place, and the issues surrounding the i
22 referral.
Arguably, the basis --
Our view is you had j
i 23 admitted the basis and certified. questions that surround or 24 are incorporated or raised by the basis; you had certified 25^
those issues to the Appeal Board.
But from an Heritage Reporting Corporation (202) 6?8-4888
541 1
administrative point of view I don't think that even if you 2
use language that says "we hereby refer the basis," I think 3
you intended to refer the issues, or at a least certain set 4
of the issues, raised by the basis.
And if there are other 5
issues, and those other issues touch on accident 6
characteristics, I don't think that you've lost jurisdiction 7
or that you otherwise are unable to take testimony.
8 The other point I wanted to make, Your Honors, had 9
to do with the resource and the definition of a resource 10 under Section 102 (2) (E) of NEPA.
The Commonwealth disagrees 11 strongly with what Mr. Gad said with regard to the proper 12 interpretation of 102 (2) (E).
And to the extent that he's 13 making the statutory-interpretation argument that you have 14 to distinguish it from the EIS section, the answer I think 15 Ms. Curran indicated, and I think it's a good answer, and 16 that is that 102 (2) (E) is simply broader than the EIS 17 section.
18 If I might, there is a case that I think is on 19 point.
I'm sure we've cited it.
I'm sure Ms. Curran has 20 cited it.
But City of New York v.
U.S.
Department of 21 Transportation, which is at 715 F.2nd 732, which is a 2nd 22 Circuit case, at 742 of that, case we find the following 23 language.
24 JUDGE BECHHOEFER:
I assume you're ignoring the 25 fact that since we've th';own Vermont Yankee into the 9th Heritage Reporting Corporation (202) 628-4888
542 1.
Circuit, we still rely on.the 2nd Circuit.
2 MR. TRAFICONTE:
Well, I'm not sure it's binding 3
on you.
But I.think it indicates that.--
And this is Judge l
l 4
Newman, I might add.
Perhaps'you could give special 5
credence, even if it's the 2nd Circuit, if it's. Judge l
6 Newman.
7 But in any case,' Judge Newman said:
8' "This court, however, has not' construed Section 9
102 to read' narrowly, toLapply only to agency actions 10 that propose an identifiable use of a limited resource 11-like park land or fresh water.
Instead we have ruled 12 that federal agencies have the duty under NEPA to study 13 alternatives to any actions that have an impact on the 14 environment, even if the impact is not significant 15 enough to require a full-scale EIS."
16 That's how the Commonwealth that section of the 17 statute as well, that it's not triggered by the use or 18 alleged or purported conflict over a limited resource, which 19 would be a narrower reading, really, than the EIS section of 20 NEPA, but instead is triggered by the_use of any resource 21 about which there's a conflict because the use would have an 22 impact on the environment.
And to that extent I think it's 23 perfectly proper statutory interpretation, doesn't run afoul 24 of the arguments that Mr. Gad made that it would be 25 duplicative of the EIS section.
It is not.
It is Heritage Reporting Corporation (202) 628-4888 l
543 1
different, has a different purpore, but doesn't require that 2
you read it as a narrowing of the definition of a resource.
1 3
So I think the stainless steel might be a 4
resource.
But I think equally a resource under NEPA would l
5 be the spent fuel pool as a physical entity and all of the 6
technical and material aspects of the spent fuel pool, 7
including the water and the air.
Those would be the 8
resources about which there is a conflict.
9 So I just wanted to offer those two points, 10 generally to support and to join NECNP in its arguments 11 before the Board.
12 JUDGE BECHHOEFER:
All right.
I take it that you 13 would agree, then, that when the Staff says that the 14 expansion capacity of the existing pool is a resource that 15 should be used, that use of " resource" is consistent with 16 the use of that term in 102 (2) (E) and in the NRC's 17 implementing regulations.
18 MR. TRAFICONTE:
Yes.
I perhaps shouldn't say 19 this, but I don't think that what should determine the 20 analysis of the issue, however, is the language that the I
21 Staff happens upon in the EA.
I agree with what you've 22 said.
But I don't think the Staff basically in that 23 document, or at that point at least, is interpreting 24
" resource" in a --
It's certainly not interpz cing in a 25 binding fashion the term " resource" under 102 (2) (E).
Heritage Reporting Corporation (202) 628-4888
544 1
I think you should look in-the first instance to 2
the intent of Congress, and then how'the cases have'come 3
-out.
Although I wish there were a very direct challenge on 4
this point'so that we'd have a court that speaks directly to 5
it, I think the cases are clear that you can~havefconflicts 6
over resources sufficient to trigger EA requirements and
,7 comparison of alternatives even though the resource that
_8 there is a conflict about is not a limited. resource..That 9
is not the trigger.
It is the fact that there is going to 10 be a use of the resource which will have an impact on the 11 environment.
Said impoet gives rise to or has an 12 environmental impact that leads people to oppose, 1
' hat's the notion, I'think, behind 13 essentially, that use.
T 14 the resource conflict that the statute is trying to 1
l 15 identify.
16 JUDGE BECHHOEFER:
I see.
Do you think any of the 17 Appeal Board decisions that we were discussing this morning 18 operated to limit the word " resource" more narrowly than 19 does your current intery etation?
20 MR. TRAFICONTE:
I can't speak to that.
I have 21 not reviewed the Appeal Board decisions in this regard.
So 22 I'm an agnostic on that point.
23 But absent language, I would say this.
They speak 24 for themselves.
But absent language where the Appeal Board 25 expressly --
Heritage Reporting Corporation (202) 628-4888 l
545 1
JUDGE BECHHOEFER:
I wish they did.
2 MR. TRAFICONTE:
Well, unless the Appeal Board 3
expressly identifies this as the exclusive list, I don't 4
think in light of the existing federal law you should reach 5
to see the Appeal Board setting forth an exclusive list.
6 1
7 l
8 9
j 10 l
11 1
12 l
13 14 l
15 l
16 17 18 l
19 20 l
1 4
l 21 22 23
I I
-546 i
1 MR. TRAFICONTE:
I take it, since Mr. Gad has not j
i 2
read us from the Appeal Board case that uses the express J
l 3
language of limitation in this regard, that the Appeal Board j
4 has not done that.
5 (Pause. )
6 JUDGE BECHHOEFER:
Do you'have further comments?
7 MR. TRAFICONTE:
That's all the Commonwealth has.
j 8
Thank you.
l 9
JUDGE BECHHOEFER:
Does the State of Vermont?
q 10 MS. FARRELL:
Yes.
We have one preliminary
(
11 matter, which is I've neglected to formally enter my
'j
)
12 appearance to this matter this morning, and I'd like to do 13 so at this point.
I'll file the written papers, if I may go j
14 forward.
15 JUDGE BECHHOEFER:
Okay.
16 (Pause. )
17 MS. FARRELL:
We support the position of NECNP and 18 the Commonwealth on the motion to strike and really only l
19 wish to address one issue, which is that we generally ceded 20 there should be no issue made over the qualification of Dr.
21 Thompson, that that's a simple evidentiary matter that l
22 should be resolved in favor of admission.
l 23 And we don't take a position on the other issues.
24 JUDGE BECHHOEFER:
Mr. Gad, do you have any i
25 responses?
Heritage Reporting Corporation (202) 628-4888
547 1
That's all that Vermont has?
2 MS. FARRELL:
Yes.
3 JUDGE BECHHOEFER:
Okay.
4 MR. GAD:
I said, "No.
Could we go home."
5 (Laughter.)'
6 MR. GAD:
If Your Honor please:
Everything that 7
this Board did in its February,
'89, order was stayed.
8 Therefore, the scope of environmental contention 9
number 3 --
10 JUDGE BECHHOEFER:
Except the referral part.
11 MR. GAD:
All right.
12 Every admissive thi?7 that this Board did in 13 February it then stayed.
Necessarily, therefore, the scope 14 of environmental contention 3 is defined by this Board's 15
- October,
'88, decision.
There have been entirely too many 16 words spent on what this Board did in October, because it is 17 about as clear as any I have seen.
18 I quote from page 446 of 28 NRC; "Whether in an 19 EIS or an EA, we must abide by the conclusions of ALAB-869 20 and -876 that 'beyond-design-basis accidents' of this type
~
21 alleged cannot be considered in a license amendment 22 proceeding of this type."
Everything that is in Mr.
23 Thompson's by fair admission de oeyond design basis.
24 JUDGE BECKHOEFER:
Now, you're covnting only his 25 direct testimony there.
His rebuttal seems to have quite a l
Heritage Reporting Corporation (202) 628-4888 I
l
548 1
bit more.
2 MR. GAD:
Your Honor asked the question earlier 3
this morning of counsel for the Staff, whether the motion to 4
strike goes to 100 percent of the Thompson direct and the 5
Thompson rebuttal.
6 JUDGE BECHHOEFER:
I guess I didn't ask you that, 7
and I'd better ask you that.
8 MR. GAD:
Well, I figured you might.
9 The motion to strike 22 nomine goes only to the 10 Thompson direct, because only the Thompson direct was on the 11 table when it was filed.
If the Thompson direct goes out, 12 then presumably there is not warrant for filing the Thompson 13 rebuttal.
Nonetheless, the motion to strike --
14 JUDGE BECHHOEFER:
Well, that's doesn't 15 necessarily follow.
I mean, if the Applicant or Staff had 16 filed a document for direct and, for the first time ever, we 17 heard Mr. Thompson come in a file a response under 18 affidavit, that would be presumably, assumirg that the 19 contention is still valid, separate and apart.
20 MR. GAD:
I don't want to get bogged down in the 21 mud, Your Honor, but the standard on subpart k is whether or 22 not any CNP has demonstrated,the existence of an issue that 23 needs a trial-type hearing.
If they have zero affidavits, 24 they cannot establich that, regardless of what I file.
- And, 25 in fact, if nobody files anything, then they cannot Heritage Reporting Corporation (202) 628-4888
I i
l 549 1
establish it, so the proposition is in fact as I said, but j
2 it.doesn't matter.
3 The motion to strike also this morning extends to 4
the Thompson rebuttal because of the qualification issue.
I 5
quickly concede that Mr. Thompson elects to go into even 6
more arenas about which he knows nothing when he takes on' 7
the question of how much it would cost to do casks, when he 8
takes on the question of'how quickly you can get casks 9
engineered, designed, licensed, constructed, loaded, and 10 then take care of the operating procedure changes that you i
I 11 have to do in connection with that.
He does offer, opinion.
12 testimony, of zero.value, but conceivably of an admissible i
13 subject matter.
So the motion to strike goes to.the
{
l 14 rebuttal, but not because of the subject matter that was my 15 first.
16 In all events, I start out by saying that, by j
I 17 admission, all of the accident scenarios that any CNP wants I
18 to talk about -- doesn't want to talk about any other aspect i
19 of reracking on environmental grounds.
He's conceded i
20 they're benign; they're equal; there's no preference.
The 21 only hook that any CNP has in here is it because it wants to 22 contend that you ought to prefer casks over racks because of j
23 this accident theory.
All of the accidents that they now 24 talk about in the accident theory, we are agreed, are 25 beyond-design-basis accidents.
What you excluded in October Heritage Reporting Corporation (202) 628-4888 i
l s
550 1
from this contention is beyond-design-basis accidents.
2 Therefore, there is a 100 percent, perfectly concentered 3
overlap between what it is that NECNP wants to contend about 4
and what it is that you excluded in October.
The result is 5
perfectly clear.
On what you included in October there's no 6
longer any contest, and under subpart k that's what you 7
should say in your disposition, and on the part they want to 8
talk about it's premature because its admission is stayed 9
pending what the Appeal Board does.
10 A couple of quick points, if I may.
11 There was an assertion by NECNP to the effect that 12 we misled you when we said that the crunch date -- that is 13 to say, when you are out of full core reject capability --
14 isn't 1990; it's a year and a half later, which by my 15 calculation is 1991 1/2.
For this assertion, NECNP does not 16 even cite Mr. Thompson, who didn't make it.
Therefore, it 17 is one to which you can pay no r.ttention.
However, never 18 one to rest on procedural limitations, let me tell you that, 19 in the testimony of Vermont Yankee, it says that you run out 20 of full core reject today, with our expanded fuel cycles, in 21 1990, not 1991 1/2.
It used to be 1989 when we were on 12-22 month cycles, and over the lunch break I confirmed it just 23 to make sure.
You lose full core reject capability the 24 minute you start up after the 1990 refueling outage.
25 Besides correcting a warrantless assertion, that Heritage Reporting Corporation (202) 628-4888
q i
1 551 1
point leads nicely to another issue.here.
There was some 2
back and forth this morning over what the date as of which 3
this' Board, as an editorial board of the EA, ought to 1
4 consider the question of whether or not there's enough time 5
to.go out and do casks.
There was some argument as to'
~
6 whether it'ought to be July,
'88, or'some other date.
The i
j 7
answer is "none of the above."
If you were to deny this 8
license application on the ground that.there is an l
9 environmentally preferable alternative of achieving the
)
i 10 same, very necessary result -- to' wit, avoiding shutdown of 11 this machine -- then the date you make that calculation is i
l 12 the date that you deny the license.
For present purposes, 13 what we're talking aboud is today.
Between today.and 1990 14 is approximately one year, and not even Mr. Thompson has.
15 contended that you can engineer and design, prepare and 16 submit a license application, get it through this celeritous 17 agency without opposition, procure the necessary materials, 18 build the facilities you have to build on site, buy the 19 casks from the manufacturer, who at the moment doesn't I
20 exist, that have been certified, except they haven't, and 21 then offload fuel and do that in a year.
Not even Mr.
22 Thompson so contends.
)
23 So a second way to dispose of what's here before 24 us this morning, a very simple way.
The first one is it's 25 just not within the scope.
A second way is, as of this Heritage Reporting Corporation (202) 628-4888
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morning, as of today, as of when you're asked to do this, 2
it's impossible, and no one contends to the contrary.
3 JUDGE BECHHOEFER:
What if we viewed the option 4
with respect to the environmental assessment as not one of 5
granting or denying a-license but, instead, of requiring or 6
not requiring a rewritten environmental assessment, then let 7
the decision-maker decide?
Then shouldn't the date be when 8
an environmental assessment would have been reasonable?
9 MR. GAD:
No.
The date would be the date the new 10 one comes out.
Let's understand:
we're not talking 11 children's games here.
We're talking about making 12 decisions, nd the issue is whether the United States 13 Nuclear Regulatory Commission, on the day it does it, is 14 going to say to these people, "Well, you've applied for a 15 license.
It meets all of the requirements of the Atomic 16 Energy Act, but we're going to deny it, not because we don't 17 want you to expand your pool, or your storage capacity, but 18 because we want you to do it a different way.
It exists, so 19 you're not really being hurt.
Doesn't cost too much more, 20 so you're not really being hurt.
And it has environmental 21 preferability."
That's the model under which we're 22 operating, and therefore the time at which you measure it is 23 the day when you make the decision, and under Your Honor's 24 hypo of, essentially, a vacation and rema.nd back to the 25 Staff, then the date at which you make that measurement is Heritage Reporting Corporation (202) 628-4888
553 1
the date on which the EA2, and itimust.be that way.
It 2
cannot be any other:way,'or we have taken the rule 1of reason 3
and left it'far behind.
4 JUDGE BECHHOEFER: 'Well,'could the rule of reason.
5 include the possibility that I raised,,I.believe, with the l
- n i
6 Interveners, of maybe 300 more. elements in the pool, using 7
the current racks, but keeping it.as low as possible, and 8
using dry casks for the rest?
You could come up with any 9
time period, almost, if you break your numbers'that way.
10 MR. GAD:
Well,.I thought an awful lot about that:
'1 1 q 11 one, Your Honor, and it raises a. couple of' questions.
Two
/
12.
of them I'll articulate.
The first is whether or not the
]
13 Staff would have the authority.to split the amendment that 14 way.
The second is whether or not the Board would have the 15 authority to-tell the Staff to do so.
I'll be' perfectly 16 honest with you.
They' re good questions, ' and I don't know
]
17 the answers.
I i
18 JUDGE BECHHOEFER:
Well, you can view it as a 19 denial in part, which I think we --
20 MR. GAD:
Splitting the amendment, giving' half and 21 denying you half.
22 JUDGE BECHHOEFER:
Yes.
23 I would never order you to do the other, but'you j
R 24 might deny half of it and say a good.way of coming up with l
1 25 the rest is to build a dry cask storage area for the rest.
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In other words, if one of the recommendations of 2
the Brookhaven report, after considerations of severe 3
accidents, was that -- in effect, it would result in just 4
that.
It would say that you leave enough space around 5
recently discharged fuel so that you don give rise to a 6
severe accident, and that would necessarily reduce, although 7
it might not eliminate, the entire extra amount.
That's how 8
I read one of the potential results if the severe accident 9
contention were litigated.
10 MR. GAD:
I respectfully disagree with Your Honor 11 that that's what the Brookhaven report recommended.
12 JUDGE BECHHOEFER:
Well, I think they had a j
13 general recommendation that recently discharged fuel not be 14 stored in closely spaced --
15 MR. GAD:
Actually not.
Brookhaven's report 16 raised a series of issues.
The Brookhaven report concluded 17 properly that they could not reach any decisions about what 18 you ought to do in particular power plants, because you 19 can't decide these questions without knowing about the 20 specifics of each plant.
Consequently, the Brookhaven 21 report suggested that somebody take a look at plant 22 specifics.
23 The Livermore report did that, and 24 happenstantially it did it for Vermont Yankee. The Livermore 25 report then went to the Staff, which issued NUREG 1353 -- I Heritage Reporting Corporation (202) 628-4888
555 1
' hope _I have the number right -- which considered whether or 2
not it was cost effective, whether or not it was worth 3
making any change, including the one Your Honor has just l
4 identified and said, "No, it's not.
It's:not worth it."
l 5
JUDGE BECHHOEFER:
Yes.
It said that as a backfit 6
measure, though, not as a starting-from-scratch, new 7
originally --
1 8
MR. GAD:
It said you don't gain anything,. Your 9
Honor, is what it said, because what you're avoiding is the 10 theoretical possibility of something that is so remote that 11 in the real~world we have better things to worry about and 12 better things to spend our money on.
13 JUDGE BECHHOEFER:
Right.
14 I think it did talk about the costs of 15 backfitting, though, which are higher than, necessarily,'the 16 cost of implementing something anew, i
17 MR. GAD:
Well, again, I don't want to get too
)
18 much of a quibble on a side issue.
I think they used the 19 latter standard, myself, of $1000 a rem, which in fact is a 20 good deal less than backfitting.
21 The point is they decAded it wasn't economical, it 22 didn't make sense, it wasn't worth it.
23 JUDGE LINENBERGER:
Mr. Gad?
24 MR. GAD:
Your Honor.
25 JUDGE LINENBERGER:
A few moments ago you gave me Heritage Reporting Corporation (202) 628-4888
556 1
a bit of a problem, I'm sure not intentionally, but you 2
appealed to the rule of reason, and I have problems with 3
rules of reason.
I wonder if you would define, in the 4
context of what you were talking about, what you mean by the 5
rule of reason.
6 MR. GAD:
That's r fair observation, and I guess I 7
suppose that one of the problems is that " rule of reason" is 8
often the battle cry of the fellow who wants to establish 9
whatever appears to be reasonable to him on this particular 10 day.
What I mean was no more and no less than this:
If we 11 want to play games, we can say to Vermont Yankee, "Well, you 12 had a good idea, but now you' re going to get penalized, and 13 your machine's going to get shut down, because you didn't 14 march fast enough, or maybe the government didn't take its 15 people off something else and put it on this when they would 16 have gotten criticized in the other one.
And, sorry, folks.
17 You lost the race.
It shouldn't happen to you.
No reason 18 why it should happen to you.
If we decided on the merits it 19 wouldn't happen to you.
We're going to shut your machine 20 down."
That's what I mean when I say we have become 21 unreasonable.
22 NEPA is a decision-making, or, more precisely, a 23 decision guiding tool, and all I meant to say -- but I meant 24 to say no less than this -- is that, if we are going to use 25 NEPA as a decision guiding tool and one of the issues is Heritage Reporting Corporation (202) 628-4888
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i 557 I
i 1
"what are the available alternatives," then "available" must I
l 2
mean "at the time we make the decision."
It cannot mean j
i 3
anything else, or else we're playing games.
That kind of j
i 4
games I would regard to be unreasonable, and my unfortunate
]
l 5
phrase referred to that, Your Honor, and no more.
I J
6 JUDGE LINENBERGER:
Thank you.
7 MR. GAD:
In an effort to avoid the effect of the j
8 limits that Your Honor put on the contention in October, I
i 9
NECNP has come up, I think for the first time since the 10 history of the world began, with a new definition of " severe 11 accident."
They said that it was an accident that required 12 a core melt.
Now, the fact of the matter is that that is a 13 failed attempt, because when Your Honors limited this 14 contention in October, you said "beyond design basis."
15 Interestingly enough, in the prior sentence, you 16 said " severe," and in context you used them as synonymous.
17 That's because, from the beginning of the world until NECNP
~l 18 made its argument a few hours ago nobody had ever suggested 19 that they weren't synonymous.
For purposes of environmental 20 analyses, which, again, are supposed to be in the real I
21 world, there is a set of things that we say will not go in l
22 the scale.
The reason they will not go in the scale is, I
23 because whilst they're theoretically possible -- and those 1
\\
24 of us with a capacity and a penchant for discussing i
l l
25 theoretical possibilities could have a lot of fun deciding Heritage Reporting Corporation (202) 628-4888 i
i 1
1 558 1
never to do anything,. talking about these things -- but when 2
you take into account the likelihood that they will be 3
experienced in the relevant time period, then they are not
~
4 worth decision-forcing.
And, in fact, if they are taken
)
1 5
into account, they force arbitrary and irrational decisions.
3 6
So this set of theoretical. possibilities by definition is 7
not allowed into the scales and doesn't tip them either way.
8 The definition of that set is "beyond design 1
9 basis."
Why?
Because we have taken the design basis and 10 fashioned it such that everything with a genuine prospect of i
11 happening gets controlled, and anything that has a real 12 probability of occurring, something to worry about, we force j
l l
13 the design basis to accommodate.
Indeed, cask drop is, as l
14 NECNP. set out on the record this morning, an interesting 15 example.
You've got two choices:
show that your pool will 16 take cask drop, or show that the cask drop can't happen.
17 That's the reason why cask drop happens to be a -- now 18 conceded to be a beyond-design-basis accident.
There is 19 nothing logical, nothing reasonable -- I apologize -- for 1
20 saying that one set of beyond-design-basis accidents should 21 be excluded from decision-making and another set of beyond-22 design-basis accidents, as to which the logic is identical, 23 should be taken into account.
24 So this notion of subdividing beyond-design-basis 25 accidents into two classes, reactor accidents -- we agree Heritage Reporting Corpo:ation (202) 628-4888
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559 1
that's contention 1 -- and all other beyond-design-basis l
i 2
accidents -- that wasn't contention 1; it wasn't what you 3
intended to stay; you really intended for that to come in, 4
that notion, frankly, Your Honors, was created this morning 5
here for the first time, and it.is invalid.
i ij 6
Having>said that, there is, however, one reason 7
for making a distinction between a core melt severe accident 8
and all others.
What-I'm about to articulate is'the only 9'
valid reason for making such a distinction.
Here goes..
10 The bases on which environmental contention 3 was 11 originally offered were in two parts.
One part was the part 12 that challenged availability.
Very ordinary stuff.
The i
13 second part is quoted by this Board on page 443 of 28.NRC.
14 That basis -- that is to say, the only thing that NECNP l
15 wanted to get into contention 3 in the first place --
16 happens to be limited to one particular type of severe 1
17 accident or beyond-design-basis accident, to wit, a core 18 melt.
Indeed, that basis for contention 3 was as verbatim-19 identical to the basis for contention 1 as it's possible to 20 be.
21 So we're left with two inexorable conclusions.
i l
22 The first one is that, by saying, "There are other kinds of 23 beyond-design-basis accidents and they are not core melt 24 accidents; therefore we can throw it back into the NEPA I
25 scale," NECNP has created a rule that never existed before, Heritage Reporting Corporation (202) 628-4888 i
I l
D
560 1
for which there is not a whiff of authority, and less logic 2
and common sense.
Second, by pinning its hopes, now, on a 3
beyond-design-basis accident other than a reactor accident, 4
NECNP has added to its burdens.
It not only is swimming 5
against NEPA and ALAB'869 and ALAB-876 and a whole bunch of 6
others, it's now swimming against its own contention, which 7
never, ever mentioned it before.
8 Last point, and this one is --
Well, let me back 9
up a second.
It wasn't the last point.
10 JUDGE BECHHOEFER:
Were you referring to the 11 portion of that decision -- I don't have the printed copy; I 12 have the slip opinion in front of me.
13 MR. GAD:
I was profferring the quote, Your Honor.
14 JUDGE BECHHOEFER:
Oh, I see.
I have part of it 15 here.
I rejected a less-than-design-basis accident in terms 16 of a zirconium fire.
17 MR. GAD:
By the Board's leave, I'll pass up what 18 I'm referring to.
19 JUDGE BECHHOEFER:
I wondered if that was the same 20 part as I had on page 7 of the slip opinion, where I 21 rejected the portion of contention 1 that attempted to offer 22 a less-than-design-basis accident as a source of a zirconium 23 fire.
24 MR. GAD:
Well, actually you said they weren't 25 offering a beyond-design-basis accident.
Heritage Reporting Corporation (202) 628-4888
561 1
JUDGE BECHHOEFER:
Well, we rejected it.
2 MR. GAD:
What I was referring to was'the language 3
where you quoted the basis...That's what I was referring to.
4 JUDGE PECHHOEFER:
Oh, okay.
I'm sorry.
~
5.
MR.- GAD:
You can' argue from now to kingdom.come-6 whether or not it was beyond design basis.
You can't. argue-7 that it was other than a reactor accident.
8 So, in an effort to avoid one pitfall, NECNP' steps 9
into another-this morning.
If the hook on,which they now 10 wish to hang their hat-is not'a beyond-design-basis reactor 11 accident, then'it's.outside of~the contention for'another 12
' reason.
13 I'll make a couple of quick observations.
14 NECNP argued that you should interpret the Vermont 15 Yankee testimony as leading to the' conclusion that there was 16 not necessity to acquire additional land. 'You may, if it' 17 pleases you, reach that interpretation, but you.are 18 misreading very badly that testimony.
What Vermont Yankee 19 said was that it could not, without taking the engineering 20 work significantly further than had been done, reach.that 21 conclusion.
Therefore, they did their economic calculations 22 without including the cost of the land, and they did their 23 time calculations without including the acquisition time of 24 the land.
I 25 The fact of the matter is very simple.. Unlike the i
l Heritage Reporting Corporation I
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pool, the casks are a shine source that contributes to'your 2
site boundary dose.
You have to maintain that site boundary j
a dose at a certain' level.. One way to do it is to. increase 4
the radius.to the site boundary.
Another way to do it.is to 5
build all sorts of' convoluted shielding' structures.- Until 6
you sit down and do the engineering -- which hasn't been 7
done and' won't be until you try to actually build-one of 8
these things -
you don't know whether or not you need more-9 land.
That, Judge Bechhoefer, is the reason why.a dry cask.
10 installation is a little bit like alternate sites.
- Because, 11 until it's the proposal instead'of somebody's preferred 12 alternative, you've never done as much' work.
You've never 13 done it before.
It has never been done at Vermont Yankee 14 with Vermont Yankee's casks -
whatever they'are -- and 15 Vermont Yankee's fuel, and the necessity of maintaining the 16 site boundary dose at a certain level at Vermont Yankee's 17 site boundary.
That is the reason why the obviously-18 superior rule requires that you have a big delta before'you 19 take the serious step of shooting down their alternative for 20 something that appears to be -- maybe it will in the future 21 be -- environmentally preferable, but in fact has its own 22 uncertainties.
23 JUDGE BECHHOEFER:
Is the only space available on 24 Vermont Yankee's site for the dry cask storage area fairly 25 close to the water or another boundary?
Heritage Reporting Corporation (202) 628-4888 l
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563 1
MR. GAD:
I have no idea, but that's not the 2
issue.
You need a certain minimum radius, or you need more 3
shielding.
It's the laws of physics.
It could be in the 4
middle of the site.
You still would have that potential 5
problem, and until you design the thing and engineered it, 6
you can't answer the question.
7 JUDGE BECHHOEFER:
No, but if it's in the middle 8
of the site the offsite radiation would very likely not be 9
affected unless you were fairly close to the site boundary.
10 MR. GAD:
Your Honor said to me, "In the middle of 11 the site, it is less likely you would be axiomatically 12 correct."
If you say to me, "If you're in the middle of 13 that site, then by no means is it likely," frankly, you're 14 not correct.
It could be extraordinarily possible.
You 15 can't tell until you've engineered the thing.
16 JUDGE BECHHOEFER:
Aren't all the releases from 17 dry casks experienced to date so low that virtually it's 18 unmeasurable?
19 MR. GAD:
They're not virtually unmeasurable.
20 They happen to be very low.
That's why it's environmentally 21 benign.
But understand the regulations for what you can put 22 out at the site boundary are equally low, and therein lies 23 the problem.
24 JUDGE BECHHOEFER:
Are those NRC regulations, or 25 are tho=e your agreement with the State of Vermont?
Heritage Reporting Corporation (202) 628-4888
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MR. GAD:
Both.
And I should think this agency 2
would like to be a little hesitant, which is probably why 3
the State of Vermont has been so cautious this afternoon, 4
before this agency forces an alternative that says, "You can 5
no longer meet the undertaking that Vermont Yankee made with 6
the State of Vermont."
It's entirely possible.
Nobody has 7
done the engineering.
8 Let's take one other issue, for illustrative h
9 purposes.
Thus far, everything that NECNP and its witness, 10 Thompson, have done has been to compare racks with an 11 accident analysis -- and, indeed, a beyond-design-basis, 12 extreme analysis, and, indeed, an extreme, maybe tentative 13 analysis -- on the one hand, to casks' normal operations, on 14 the other.
Until right now, word one hasn't been said about 15 an accident analysis for dry casks.
Now, it is always true 16 that, if you want one of two runners to win a race, put lead 17 shoes on the guy you want to be the lower.
It is very 18 effective, and that's exactly what NECNP is doing here; it's 19 exactly what Mr. Thompson is doing.
The fact of the matter 20 is, until you do the same kind of engineering and the same 21 kind of analysis on casks, and until you're prepared to 22 compare this extreme scenario, " accident may be possible in 23 racks," to the extreme scenario, "may be theoretically 24 possible in casks," until you're prepared to do that you 25 haven't got a fair fight.
Heritage Reporting Corporation (202) 628-4888
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JUDGE BECHHOEFER:
Can you get a cask drop 2
accident with dry casks?
3 MR. GAD:
It's not necessarily the drop at all, 4
Your Honor.
There are all sorts of accident potentiale with 5
casks.
Look at the problems that they had with the first 6
casks they ever did.
They designed the whole thing, they 7
engineered the whole thing, and then they figured out that 8
the basket wasn't going to work.
And if you loaded the 9
whole thing up and put it in the cask, you were going to 10 have real problema, far beyond the casks' design basis.
11 All I'm saying to you is -- and the purpose of 12 raising it is, other than that it's always neat to point out 13 when somebody isn't fighting fair -- is this is one more 14 reason why, if you're going to move off today's known in 15 favor of tomorrow's significantly less well known, then the 16 rule of reason -- apologies; I'm sorry, Your Honor -- the 17 rule of reason says you'd better be very, very sure.
You'd 18 better be very sure that it's a move you should oughta be 19 making.
If you're going to step off the dock, make sure 20 there's a boat there.
~
21 Last observation.
22 23 24 25 Heritage Reporting Corporation (202) 628-4888
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MR. GAD:
In some respects this is the most 2
important, and yet I can't say much about it because the 3
whole notion is bizarre.
NECNP has argued to you at great 4
length, the Commonwealth of Massachusetts has endorsed the 5
point.
I listened for a long time.
I thought about it at 6
lunch.
I have yet to figure it out.
But somehow or other, 7
NECNP wants this Board to rule, as, indeed, this Board must 8
rule if it's to avoid kicking this contention out altogether 9
this afternoon -- NECNP wants this Board to rule that the 10 structure of NEPA is such that if it has a big environmental 11 impact, we will do an analysis for environmental-impact-12 avoiding alternatives.
But these things I told you wouldn't 13 go in the scale don't count, because they're too remote.
14 And if it doesn't have a big impact, then we'll do exactly 15 the same search for alternatives, environmental-impact-16 avoiding alternatives, but this time we will put the remote 17 consequences into the scale.
18 That's what they argue.
That's what they must 19 argue.
20 JUDGE BECHHOEFER:
Well, do they really argue 21 that?
Because they've been told they can't put the forward 22 in issue.
They would like to argue that you should consider 23 it all, including severe accidents.
They realize that it's 24 before the Appeal Board, that part is before the Appeal 25 Board.
Heritage Reporting Corporation (202) 628-4888
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1 MR.. GAD:
No, no,. absolutely not.
What was' argued-2 to you,.I can give you' quotes.
But.you've got the.
i 3
transcript,.so.I don't have to.
4
-What was argued.to you is, in the.102 (2) (E) side,.
l-l 5
we're going to have this insignificant environmental' impact,-
j 6-which is the effects of the accident, without taking~into-7 account the minuscule probability of.the accidert,'which any 8
analyst knows means setting it for analytical purposes at 9
unity.
And that is a far more severe study, a far more 10 severe assessment than the one that's under 102 (2) (C), which 11 is supposed to be the harder test. '
~
And we're going to do i
12 all. of this when we admit, for purposes of-argument, that 13 there is no major federal action with a significant irpact I
14 on the human environment.
i 15 That's exactly what they've argued to you in this 16 room today.
It is bizarre.
17 The. fact of the matter is that if the Nuclear 18 Regulatory Commission is now going to rethink whether the l
19 severe-accident, beyond-design-basis accident lump goes'back.
20 into the scale as the potential cause of an environmental i
21 impact that may or may not warrant mitigation, you're going 22 to rethink that under 102 (2) (C),
l which happens to be 23 Contention 1.
I think they're dead-squat wrong.
But that's 24 at least the place to put it.
25 With Contention 1 temporarily on ice and the clock l
Heritage Reporting Corporation (202) 628-4888 i
568 1
running out, they're.now trying to put1the same thing, which
(
2 we all say is_too big to put in that dish,sthey're'trying to 3
put.it in a very much smaller dish.
That is-an argument ' you l
I 4
cannot accept.
And unless you do,.you must bounce i
5 Contention 3 because it's now being conceded on'all points 1
6 of the compass that on regular analysis there's nothing left-
]
7
.t'o talk about.
Both technologies are environmentally -
l 8
benign.
i 9
JUDGE BECHMOEFER:
Of course, we'veLreferred that i
10 part.
To the extent the basis refers to accidents, that's a
11 before the Appeal Board too in Contention 3.
1 i
12 MR. GAD:
That's one reason why you.have to kick l
l 13 it out.
Another reason 11s because that could never be a 14 102 (2) (E).
It must be a 102 (2) (C)..
15 JUDGE BECHHOEFER:
Well, except that you need I
16 both.
102 (2) (E) is always applicable, whether or-not you 17 have the statement.
And 102 (2) (C) 'is. if you have a l
18 statement.
But they're both applicMole'if you have 19 significant impacts.
20 You've got to compare both.
~
21 HR. GAD:
That's enough.
22 JUDGE BECEHOEFER:
Sometimes you envelope one 23 within the other.
But you do both under --
24 MR.RGAD:
That's my point.
That's exactly my 25 point.
Except that if you buy this argument, besides having Heritage Reporting Corporation (202) 628-4888 4
569 1
teken logic and stood it on its head, or turned it inside 2
out, or both --
But if you buy this argument, you see, you 3
have now eradicated the last distinction there is between 4
102 (2) (C) and 102 (2) (E).
And that's why it's impossible.
5 Again, I think their contention --
6 JUDGE BECHHOEFER:
Well, I'm not sure that's the 7
case, because the examination may not be the detailed 8
examination, but it may still be an examination.
9 MR. GAD:
But the trigger is the same:
There is 10 some alternative we like, we claim it's environmentally 11 preferable.
That's identical.
12 JUDGE BECHHOEFER:
Yes, that's the trigger.
But 13 the end result may be different.
And that may be enough.
14 MR. GAD:
Your Honor, if there is an alternative 15 that you like because it is environmentally preferable --
16 Think it through.
If it's environmentally preferable, then 17 it must have a lower environmental cost than the proposal.
18 That means that the proposal must have a great enough 19 environmental cost over zero to have room for this delta.
20 And if that's true, you're in 102 (2) (C).
~
21 JUDGE BECHHOEFER:
Well, I'm not sure.
But I know 22 your argument.
23 MR. GAD:
All right.
Then I won't say it for the 24 umpteenth time.
But I urge you very carefully to listen to 25 what was argued to you today:
that this very thing that Heritage Reporting Corporation (202) 628-4888
570 1
it's hypothesized they concede cannot be put in the scales 2
under 102 (2) (C), beyond-design-basis accidents, they then 3
want to put back in the scale for 102 (2) (E).
That's 4
illogical and that's impossible.
5 So for about five or six different reasons, the 6
ruling has to be that Contention 3 is dismissed.
Thank you, 7
Your Honors.
8 JUDGE BECHHOEFER:
Why don't we take a short break 3
and then come back.
10 (Brief recess. )
11 JUDGE BECHHOEFER:
Back on the record.
12 At some time before we broke, Mr. Traficonte had 13 mentioned the possibility of settlement.
I'm wondering 14 whether anything further has come of that or if you could 15 mention on the record whether that possibility still exists 16 or not.
17 MR. GAD:
Let me try this out and see whether or 18 not Mr. Traficonte faints.
19 There have actually been discussions of sorts 20 ongoing for a long time.
I think the Board might be misled, 21 assuming it relevant, if it got the impression that that to 22 which Mr. Traficonte referred was kin to what occurred last 23 time with respect to Environmental Contention whatever it 24 was.
I can't remember.
25 JUDGE BECHHOEFER:
The safety contention, Heritage Reporting Corporation (202) 628-4888
571 1
Contention 1, whatever.
2 MR. GAD:
Whatever it was.
3 JUDGE BECHHOEFER:
Yes.
4 MR. GAD:
This thing is different.
My conclusion 5
is that there is no reason for us to delay or defer what 6
we're doing today in order to accommodate those discussions, which I'm confident will' reach whatever result they're going 7
8 MR. TRAFICONTE:
The latter part is a little 9
confusing, but the general gist is right.
I don't think 10 there's any purpose in deferring.
11 JUDGE BECHHOEFER:
I see.
Well, we had just heard 12 that maybe half an hour would help.
13 MR. TRAFICONTE:
Well, what happened is we had 14 continued to have conversation through the mail, so to 15 speak.
We continued, while we were sitting here, to 16 communicate.
And we reached clarity that there's no need 17 for us to take a break to discuss the matters further.
18 MR. GAD: ' Well said.
19 JUDGE BECHHOEFER:
I see.
20 JUDGE CARPENTER:
Well, is there any time frame 21 for concluding this dialogue?
Up or down?
22 MR. TRAFICONTE:
Well, I think depending on which 23 side you view it from, you could see the dialogue as having 24 concluded.
25 JUDGE CARPENTER:
Well, I'm sorry to hear that.
Heritage Reporting Corporation (202) 628-4888
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1 MR. TRAFICONTE:
Yes.
2 JUDGE BECHHOEFER:
Okay, Ms..Jehle, I guess you 1
3 have some comments further.
i 4
MS. JEHLE:
Yes, the Staff does have additional
-]
5 comments.
First, we'd like to refer.to the Commission's 6
regulations, 51.14, which gives the definition of an 7
environmental assessment.
The regulations. define 8-environmental assessment'as "a concise public document for 9
which the Commission is responsible, that serves'to,briefly
)
10 provide sufficient evidence and analysis for determining 11 whether to prepare an environmental impact statement or 12 finding of no significant impact."
1 13 We would just like to reiterate that the Staff
'l i
14 prepared such a document and determined that there was no j
15 finding of significant impact, and is required to do no 16 more.
17 In reference to a basis for the present 18 contention, Environmental Contention 3, in the Board order 19 of October 11, 1988, the Board admitted as bases, by 20 incorporating by reference, the bases for Environmental 21 Contention 1 and Contention 2.
Environmental Contention 1
]
\\
22 was later referred to the. Appeal Board, which has.been
]
l 23 mentioned many times today.
Contention 2 was withdrawn by l
24 the Interveners.
NECNP at this point has no basis for 25 Environmental Contention 3.
For that reason, we believe Heritage Reporting Corporation (202) 628-4888 1
t m
573 1
that the contention should be withdrawn.
2 JUDGE BECHHOEFER:
I assume you mean no severe-3 accident basis or no accident.
4 MS. JEHLE:
Right.
The severe-accide nt basis is 5
within Environmental Contention 1, which has been referred 6
to the Appeal Board.
That's our position.
7 The resource at issue, according to NECNP, is the 8
cooling capacity of the spent fuel pool during an accident.
9 This relies on severe accidents.
Without the severe-10 accident basis, there's no link to the NEPA requirement that 11 alternatives be considered, there's no link to the dry cask 12 storage alternative being made by NECNP.
13 JUDGE BECHP.OEFER:
But isn't that an alternative?
14 Let me read the precise words.
Well, isn't that an 15 alternative use of a resource?
16 MS. JEHLE:
The cooling capacity of the spent fuel 17 pool?
18 JUDGE BECHHOEFER:
Yes.
19 MS. JEHLE:
Is an alternative use of a resource.
20 They are refeering to that as the resource, as I understood 21 it.
22 JUDGE BECHHOEFER:
Right, and we pointed out 23 earlier the Staff itself referred to that as a resource in 24 its EA.
25 MS. JEHLE:
No, we consider the pool, and the Heritage Reporting Corporation (202) 628-4888
574 1
racks, and the materials used'in the. racks to be the 2
resource, not the cooling. capacity of the spent fuel pool 3
during an accident, which is what NECNP stated to be a 4
resource in this oral argument.
5 JUDGE BECHHOEFER:
I don't see where they have 6
referred to the resource as the cooling capacity during an 7
accident.
8 MS. JEHLE:
They said that today, just shortly,'in 9
oral argument.
10 JUDGE BECHHOEFER:. Well, but in Footnote 12 of 11 their response they mention that the resource is the spent 12 fuel pool and its capacity for safe storage.
That's the 13 resource.
Then they go on to describe whether that resource 14 could be used in an accident or adequate to withstand an 15 accident.
So they may well be meeting the precise terms of 16 the regulation or statute, which 102 (2) (E) represents.
17 I don't think they've limited their resource to use in an 18 accident.
They've used the resource as an example for their 19 description of accidents.
20 MS. JEHLE:
I believe that that's how they limited 21 their resource just a few moments ago in oral argument.
But 22 the point is that other than their severe-accident basis, 23 there is no link to the requirement of the examination of 24 alternatives under NEPA.
There's no way to link up the 25 examination of dry cask storage as an alternative to wet Heritage Reporting Corporation (202) 628-4888 h
575 1
storage.
2 JUDGE BECHHOEFER:
Well, I think their 3
disagreement is with the conclusion of the Staff that dry 4
cask storage couldn't be implemented in time.
And they have 5
raised some question about that.
6 MS. JEHLE:
What is at issue is not whether or not 7
dry cask storage can be completed in time.
What is at issue 8
is, is there an unresolved conflict over the resource that 9
requires that alternatives be examined?
Whether or not the 10 dry cask storage could be completed in time is not that 11 important, and it's not the basis for the Staff's approval 12 of the wet storage expansion.
The basis for approving the 13 proposed action was because it create no significant impact 14 on the environment.
15 As an aside, the Staff recognized that the time 16 constraints with implementing a dry cask storage facility 17 would be severe.
But they did not reject a dry cask 18 alternative on the basis of a timing or scheduling problem.
19 JUDGE BECHHOEFER:
Well, I sort of read your 20 environmental assessment of dry cask storage or of the 21 alternative as being based primarily on the little 22 likelihood that effort could be completed in time to meet 23 the need for additional capacity.
It seems that's the 24 primary reason.
That's the basic reason you gave for 25 rejecting that.
Heritage Reporting Corporation (202) 628-4888
576 1
MS. JEHLE:
The description of alternatives in the' i
2 EA is not intended and is not required to meet the 1
3 requirements of 102 (2) (E).
The description of alternatives.
4 in the EA is intended to meet the requirement'of a brief 1
5 provision of evidence and analysis for determining whether 6
an EA is to be conducted, and the Staff did that.
7 The Staff's EA is not' to be' judged under the j
)
8 requirements of.102 (2) (E) without a showing by the l
9 Interveners of an unresolved conflict.
And without the 10 severe-accident basis, the Staff contends that they cannot 11 do so, and, further, that.the' severe-accident. basis:has been 12 excluded from this oral argument: it's now before the Appeal 13 Board.
There's no conflict under 102 (2) (E).
l 14 (Pause for Judges to confer. )
j I
15 JUDGE CARPENTER:
I'd like to ask the Interveners, 16 please, if they want to comment any further on whether the i
17 reference to their oral statement this morning that the l
18 resource in dispute ~here is the air to be consumed in the I
19 oxidation of the zirconium if there were a fire in the 'pr.nt 1
20 fuel pool.
21 Was that accurately quoted from this morning?
22 MS. CURRAN:
Yes.
23 JUDGE CARPENTER:
So that's the resource that you 24 think is the issue that's in conflict.
3 25 MS. CURRAN:
Well, yes.
I think I'd define it a Heritage Reporting Corporation (202) 628-4888 i
__-_-__-___-__i
577.
1 little more broadly, as the pool itself and its. capacity to 2
pool the fuel in the event of an' accident.
3 In another sense, another_ resource at issue here u
4 is time, the time necessary to license a dry cask storage
-j 5
. facility,..that there is a conflict here over the use of that l
6 time the way that it was used by the NRC Staff, the way-4 7
that it was misused and eaten up by the delay.
This has-8 just occurred to me as I listen here.
l
~
9 JUDGE BECHHOEFER:
Does anyone have anything to-10 add on the motion to strike?
Otherwise, we're going to 1
11 rule, is what I'm saying.
12 MS. JEHLE:
I would just like to make one final j
i 13 point regarding the accusation of Staff delay.
The Staff I
14 has in their written pleadings addressed this issue and has 15 addressed it earlier today.
There was no delay on the part 16 of the Staff.
Mr. Gad even addressed it peripherally in his i
I 17 discussions a few moments ago.
)
1 18 The Board admitted three contentions and ordered 19 discovery on the contentions.
To that extent, the Staff was 1
20 engaged in that discovery and didn't have further time.
You l
l l
21 know, there were restraints on Staff resources.
There was 22 no intentional delay.
We just want to make that clear.
l 23 JUDGE BECHHOEFER:
I believe the discovery against 24 the Staff didn't take place until after the environmental 25 assessment issue, however.
l l
l Heritage Reporting Corporation (202) 628-4888 l
1
____________-______--m-
578 k
1 MS. HODGDON:
I'm addressing this, only because j
2 Ms. Jehle was not Staff counsel at the time.
f 3
JUDGE BECHHOEFER:
Right.
4 MS. HODGDON:
The Board ordered discovery to begin 5
immediately after the admission of those contentions in May
)
6 of 1987.
In fact, we answered several rounds of discovery 7
on those contentions.
- uid to the extent that the Staff was j
8 involved in discovery, the Staff did not have time to do its 9
environmental assessment because, as I stated here last 10 summer, the Staff, when it's doing something, can't do 11 something else.
Therefore, it didn't have the time to 12 devote to it.
13 Subsequently,'those two contentions were dismissed 14 by the Appeal Board.
Discovery then ceased by virtue of 15 that action, was interrupted.
Then the Staff did prepare 16 its environmental assessment later.
1 l
17 But NECNP's effort to somehow blame the Staff for j
18 not publishing its environmental assessment in a timely 19 manner seems to me ill-taken here, in that the Staff's 20 procedure --
I mean, as long as the environmental 21 assessment comes out before the authorization to do the 22 actions concerned, that's the only requirement with regard 23 to timing on the EA.
And since the Staff was engaged in 24 answering NECNP's discovery, I think it ill behooves them to 25 suggest that the Staff should have been doing something Heritage Reporting Corporation (202) 628-4888
l 579 1
else, as well.
2 MS. JEHLE:
The Staff does not have further-3 comment.
4 MS. CURRAN:
I'd like to respond to just one more 5
point.
That is, Mr. Cad pointed up an' unusual feature of l
6 the relationship between 102 (2) (E) and 102 (2) (C).
And that l
7 is that even though the impacts of a proposed action may be 8
insignificant, that 102 (2) (E) imposes serious burdens on an 9
agency to consider alternatives.
10 Contrary to what Mr.
Gad says, this is not 11 NECNP's cockamamey theory, it's the law.
The 2nd Circuit 12 has recognized that it's an anomalous result.
I'm quoting 13 from City of New York v. tJnited States Deoartment of 14 Transportation.
"It remains something of an anomaly to 15 insist that an agency assess alternatives for an action it 16 has determined will not have a significant effect on the 17 environmental."
And it refers to the Hanly decision.
"But
{
l 18 even accepting the teaching of Hanly, as we must,.we are of 19 the view that an agency's finding of no significant impact 20 if otherwise valid" --
Well, I'm sorry, that was the 21 sentence, that they must, they must follow that requirement 22 regardless of how anomalous it seems....
23 JUDGE BECHHOEFER:
What page is that on?
24 MS. CURRAN:
That's on page 744, Vol. 715, F.2nd.
25 MR. GAD:
To the extent that that is the law in Heritage Reporting Corporation (202) 628-4888
1
- 580, 1
1 the 2nd Circuit -- and hearing it, I doubtfit -- it is'not J
2 the law in the NRC,'because the Appeal Board has said that.
l 3
if the proposal'is environmentally benign -- this is a j
4f virtual quote, and.I quoted it in my papers --~there is no 5
need to search for'an alternative'that is environmentally.
6
'benigner. (sic)
So that's the law in the NRC, whatever the 7
sentence.
j 8
JUDGE BECHHOEFER:
Mr. Gad, what the Appeal' Board 9
said was that there was no need for the NRC to search i
1 10 necessarily.
But when someone else'has proposed it, the l
1 11 Appeal Board did-not say that you don't have to examine it.
l 12 I think they said it was the burden of the intervenor to l
13 come forward and --
14 MR. GAD:
I'm sorry, Your Honor, I'm guilty of 15 paraphrasing.
What the Appeal Board'said in ALAB 459 is 16 there is no need to consider, regardless of whose bright 4
17 idea it was, for the reason I said.
If the proposal is 18 benign, then you don't have to-look for something that is 19 better environmentally.
20 Now, if the 2nd Circuit has realized that its 21 interpretations don't make sense, that's marvelous.
The NRC 22 happens to be ahead of the 2nd Circuit.
But the Appeal l
23 Board decisions are what govern here today.
24 JUDGE BECHHOEFER:. Well, I think we've had 25 decisions in the 2nd Circuit, maybe the 8th Circuit, 7th Heritage Reporting Corporation (202) 628-4888
581 1
Circuit cited to us, all of which would not seem to follow 2
that.
And if there's a growing consensus maybe that the law 3
should be otherwise, maybe we are required to look to that.
4 MR. GAD:
I respectfully submit --
5 JUDGE BECHHOEFER:
Particularly since I read the 6
Appeal Board's decision as almost limited to its facts, the 7
facts of the case before it there.
l
~
8 MR. GAD:
Well, you know, I'm going to shut up, 9
which is going to surprise everybody, after I do the i
l 10 following quote.
And I quote.
"There was no necessity to 11 explore the intervenor's suggested alternative unless there l
12 was some basis for believing that the proposed" -- let me 13 truncate this -- " alternative might have a significant" 14 environmental -- I'm sorry, that the " proposal", not the 15
" alternative", might have a significant environmental 16 effect.
17 That's the law of the Appeal Board.
And, frankly, 18 Your Honor -- and I say this with some temerity, but 19 arguably not enough -- if some people think that the Appeal 20 Board is legally in error because it doesn't go with the 2nd 21 Circuit, that doesn't get resolved in this room.
That's the 22 law of the NRC.
It happens to be right which is nice.
But i
23 even if it weren't, that's the law of the NRC.
24 I apologize for rising again.
l 25 JUDGE BECHHOEFER:
I think we had better break for Heritage Reporting Corporation (202) 628-4888
582 1
a moment before we come out with our decision on the motion l
2 to strike.
3 (Brief recess. )
4 JUDGE BECHHOEFER:
Back en the record.
j l
5 The Board has reached its decision on the motion i
1 6
to strike.
We have decided to grant it in part and deny it 7
in part.
~
8 We are granting it with respect to the following 9
paragraphs of the testimony, the basic testimony itself.
I i
10 Paragraph VI is out.
Paragraph VII, the first paragraph of 11 the answer to the second question, it appears on page 10; 12 the first paragraph of the an swer to the second question is i
13 out, the remaining two paragraphs of that answer stay in.
14 The last question and answer in that same section, VII, is I
15 out, the one that appears on page 11.
Paragraph VIII is
{
l 16 out.
Paragraph IX is out.
17 Concerning the rebuttal testimony, Paragraph II(A) l 18 is out.
The rest is in.
19 So as the record now stands, we have before us the 20 affidavits of all of the parties but NECNP in part.
Part of 21 that affidavit stays in, part out.
22 Now, we have concluded that the portions related 23 to severe accidents or design-basis accidents Hanly referred 24 to the Appeal Board were not part of the basis of the 25 contention that is now before us.
In our understanding of Heritage Reporting Corporation (202) 628-4888 c
l 583 1
what we referred to the Apper.1 Board, we referred all of the 2
bases for Environmental Contention-1.
That was incorporated ~
j l
3 by reference.
So whatever it's worth, we referred it all to j
4 the Appeal Board.
Once the Appeal' Board rules, we'll know 5-what to do with that.-
(
'I l
6 Further, on the basis of the material before us, k
7 we believe that the EA, the paragraph on dry cask storage is
)
i 8
inadequate as written, as a matter of law, and that it has i
9 to be supplemented further.
j i
10 We have to hear the parties' arguments on this.
11 But we believe that's what currently left in the record will 12 be enough for us to examine the various questions about 13 whether an adequate analysis for purposes of 102 (2) (E) and 14 the Commission's implementing regulations at Part 1 --
15 whether what's left is enough for that.
We think it 16 probably is, but we may have a few questions.
)
17 In fact, one of the questions we do have or we 1
18 would like to have something on the record other than 19 from a lawyer, because we got it from a lawyer, is 20 concerning the costs related either to land acquisition if 21 necessary or building of shielding structures.
We're not 22 certain that that --
In fact, we rather think that that's a 23 minor matter which we could perhaps handle tomorrow.
I 24 think the exact costs are probably not necessary, but some 25 ranges of costs for that kind of thing would be enough for Heritage Reporting Corporation (202) 628-4888 4
584 1
NEPA purposes under 102 (2) (E).
2 I would presume that witnesses from all parties 3
could possibly address that.
They have, to some extent, in 4
their affidavits.
I think only the Applicant would know 5
about land costs, if any were necessary.
And I recognize 6
that there are quite a few uncertainties.
But whether it's 7
a bslance between building shielding walls, structures, or 8
adding more land, we don't know, and I'm not sure the record 9
is enough for that.
10 There are also one or two of the cost elements 11 that we would like to find out somewhat more information.
12 For example, what does the cost of the supplemental cooling 13 system include?
Does it include only design engineering, or 14 does it include all the costs? and that kind of thing.
15 Whether or not it would be better for a witness 16 who developed those costs to answer the question for the 17 record, I'm not certain.
It might well be.
But from what I 18 understand, the witnesses are here.
And we would consider 19 those minor matters to which we could fill in.
20 MR. GAD:
A point of inquiry, Your Honor.
I have 21 no objection whatsoever to the Board's propounding those 22 questions or any other questions to the witnesses.
I know 23 I'm in distinction to some other folks in the room.
24 Is it foreordained, however, that it must be 25 tomorrow?
I raise that with some trepidation, but, Heritage Reporting Corporation (202) 628-4888 l
585 1
nonetheless, for this reason.
There's an awful lot of 2
people who have spent the entire day here.
Everybody is 3
here who could be here tomorrow.
And it is a significant 4
increase in cost burden and the impact on other matters to 5
have them come back here tomorrow.
I, for one, am prepared 6
if it's possible to have this done tonight.
7 JUDGE BECHHOEFER:
Well, we clearly have another 8
hour.
But whether that's enough or not, I'm not sure.
I'm 9
not sure that we're welcome here much after 6:00 or, if we 10 broke for dinner, whether we could get back in.
I don't 11 know what those rules are.
12 MR. GAD:
I'm afraid I don't know either.
13 JUDGE BECHHOEFER:
No, I recognize that.
But we 14 have said that we would use the room until 6:00, so I think 15 we have it reserved for another hour or more.
16 The real question is whether if we undertook oral 17 argument on the remaining, whether there would be further 18 matters that became identified.
Those were the couple of 19 items that the Board, at least, thought that the record 20 should be somewhat more developed on.
Of course, we could 21 start out with that.
22 MR. GAD:
For posterity, there follows --
23 JUDGE BECHHOEFER:
I might add, we could come 24 back.
But that in effect is setting the evidentiary 25 hearing.
We could issue an order defining one or two little Heritage Reporting Corporation (202) 628-4888
586 1
things like that and come back.. We could follow that 2
procedure, because the supplementary matters that we were 3
talking about, we thought we were just trying to work it in 4
in terms of one trip up here rather than two.
5 MR. GAD:
I'm not pushing an-evidentiary hearing, 6
Your Honor, because I think you're going to have some 7
difficulty making the ' findings correct-at'this. point.
8 Let me try this on and see whether or not it has 9
any potential for shortening this.
With the Board's 10 permission, I'would like to suggest to you respectfully that 11 having stricken the portions'of the Thompson material that-12 you have stricken, all of the other questions that Your-13 Honor has alluded to -- more precisely, questions of 14 comparative costs, comparative non-economic environmental 15 impact -- all of those questions are now moot.
There is 16 agreement in this room that apart from the matters you've 17 now stricken, properly so, we are
.n perfect agreement and 18 can stipulate right'here in the open' record that the two 19 alternative means of storing fuel are environmentally equal, 20 close enough.
They're each environmentally benign, and at 21 that point they happen to be environmentally equal.
22 If they're environmentally equal, then cost is 23 irrelevant, because cost is only used to pursue an 24 environmentally disadvantaged proposal, staving off an 25 environmentally preferable alternative.
You never get to Heritage Reporting Corporation (202) 628-4888 i
_-_--__-_U
587 1
costs unless you find an environmentally preferable 2
alternative.
So if that's true, that aobody contends that 3
casks is environmentally preferable apart from these l
4 accident matters which have now been put over to another day 5
and another forum, then cost is irrelevant.
6 Frankly, so is timing, because timing is only used 7
as a threshold to avoid reaching what you do if there's an 8
environmentally preferable aAterative.
NECNP has.made is 9
very clear -- I don't think I'm being unfair with anybody --
10 in writing and orally this morning that apart from accident 11 considerations, they regard the two technologies to be 12 environmentally benign.
So do we, so does the Staff, so 13 does Mr. Thompson.
14 That leaves, you see, the only issue that was ever 15 in dispute, the one that you have now properly stricken.
So 16 I would like to suggest -- respectfully, I assure the Board;
,17 and timidly, maybe yes, maybe no -- that the necessary 18 conclusion that follows from the action that you've taken on 19 the motion to strike is to dismiss the contention.
20 Underctand, that's not an objection to asking them 21 questions.
That's simply raising whether or not its 22 syllogistically necessary.
23 JUDGE BECHHOEFER:
My thought is that there's 24 enough, that we have already said that we shouldn't dismiss 25 the contention because we don't believe that the EA, as Heritage Reporting Corporation (202) 628-4888
I 588 1
written, is adequate on its face as a matter of law.
But I i
2 think when supplemented by a lot of material in the record, j
{
j 3
it would be.
To supplement it, we had thought a few of i
4 these questions.
And they're not very extensive.
Maybe we 5
could ask them almost on the spot, if the parties are in
.6 agreement that that's a course we can do.
But if there are h
7 other matters, and I don't know that there are --
l 8
MR. GAD:
Begging the Board's indulgence, this is 1
i 9
not a construction permit case.
We' established that earlier 10 this long day.
In a construction permit case the Board 11 would have certain obligations vis-a-vis NEPA, even if all i
i 12 of us had our arms around one another.
This is not a 13 construction permit case.
l i
14 This is a subsidiary or derivative of an 15 oporating-license case.
That being so, your obligation --
I l
16 and I respectfully suggest to you permissible bounds of your 17 writ -- is resolving disputes.
18 The submissions by the parties have made it very 19 clear that the only dispute there was was whether or not you 20 had to look at alternatives on account of this accident 21 thing that is now out of the case.
22 JUDGE BECHHOEFER:
Right.
Well, what about the 23 strong complaint about the Staff's statement that, in any 24 event, this option isn't available?
25 MR. GAD:
It's irrelevant.
Heritage Reporting Corporation (202) 628-4888
589 1
JUDGE BECHHOEFER:
Well --
2 MR. GAD:
It's the third question, Your Honor.
If 3
we don't get past the first question, you never get to the i
4 third question.
There is no longer any contention in-this 5
case that you had.to look at alternatives to begin with.
6 The only NECNP has ever made is that you have to look first 7
-- Let me back up a second.
Let me state what I thought was 8
obvious.
q l
9 You don't have to look at alternatives in every.
A 10 case.
You only have to look at alternatives if some 11 thresholds are met.
We have disagreed today on what that j
j 12 threshold is.
Nobody has argued that there isn't some 13 threshold, in the absence of which there's no requirement to 14 look at alternatives.
15 Now, you have taken the threshold --
I i
16 JUDGE BECHHOEFER:
Well, I'm not sure that 17 102 (2) (E) doesn't require some sort of an analysis in every 18 action.
l 19 MR. GAD:
You mean you read the "if" clause out of 20 it, as if it wasn't written by Congress?
21 JUDGE BECHHOEFER:
No.
~
22 MR. GAD:
There's an "if" clause there.
23 JUDGE BECHHOEFER:
I realize that.
But there's a 24 dispute as to resources.
25 MR. GAD:
And there was only one dispute that ever Heritage Reporting Corporation (202) 628-4888 l
590 1
surfaced here, and it's the one that you just' ruled out.
l 2
JUDGE BECHHOEFER:
I'd read the dispute and the 3
resource as use of the pool and the dispute as to whether it 4
should be used.
i 5
MR. GAD:
Well, maybe I should sit down, because I 6
will quickly render impossible my mission of shortening 7
this.
I l
8 JUDGE BECHHOEFER:
Well, we would like to shorten i
9 it.
If the parties were in agreement, we'd like to be able 10 to ask a few questions, get the answers, and write a new I
)
11 paragraph to the ER based on what's in the record, and call
)
12 it a day.
1 13 MR. GAD:
With full deference to my opponents in
]
14 this room, the matters on whics we have differed today and 1
15 before today --
I thought it wes crystal clear, and.perhaps j
16 the Board might want to find out if it is still crystal 17 clear, that apart from the issue that Your Honor has now i
18 ruled out, there is no further disagreement between us.
19 There is nothing further to be served by testing comparative 20 environmental impacts, which we all agree are nil.
There is 21 nothing further to be served by testing comparative costs, 22 which is irrelevant unless there's a delta in the 23 comparative environmental effects.
There is nothing further 24 to be achieved by testing the timely availability of an 25 alternative if nobody is contending that the alternative Heritage Reporting Corporation (202) 628-4888
a 591 1
should be pursued on the grounds that remain. permissible.
2 Therefore, you see, we.would beLpounding nails that don't 3
need to be drive.
4 Now, I may_be wrong about that.-
And perhaps'the 5
Board might want to inquire of the other parties._-But I.
6 respectfully submit that Your Honor is about to engage in 7
resolving matters that are not in dispute.
8-JUDGE BECHHOEFER:
Ms. Curran,fdo you have any 9
comments on what Mr. Gad.just had.to say or'some of'the 10 comments I've made?
11 MS. CURRAN:
Well, first of all, I don't think 12 that this environmental assessment could be. corrected very.
13 easily by a few additional pieces of information on thil 14 record.
I think the' Staff has yet to independently verify 15 the cost estimates or certain elements of the timing of the 16 design and construction.
And I don't believe that that can 17 be done, or I have no reason to believe that that could be 18 done, tonight.
19 JUDGE BECHHOEFER:
Well, I would think that we 1
20 could take into account all of the affidavits that were done i
21 so far, to the extent not stricken.
22 MS., CURRAN:
It would be our position, when you 23 look at those, that that is still not'a sufficient basis for 24 finding there's an adequate EA.
25 I have another concern.
That is, regardless of Heritage Reporting Corporation (202) 628-4888 l
m-JL
592 1
whether Mr. Gad is correct that if our evidence on the safer 2
alternative has been struck, we can't get past base one, I 3
think there is a fundamental NEPA issue here that has to be-4 addressed.
And that is that when the Staff does undertake 5
an environmental assessment, that it has to be done in a 6
timely manner so that the parties have a chance to actually 7
get a fair hearing on the alternatives that they consider 8
should have been done.
In any event, I would hope that the 9
Board would address that in whatever decision it reach"os as 10 part of this agency, that the Board can express some opinion 11 that environmental assessments need to be done promptly in 12 order to be meaningful, to provide the parties a meaningful 13 opportunity under NEPA.
14 As soon as this application was docketed, we were 15 in with a contention asking for consideration of 16 alternatives.
And here we are in 1989, and the clock has 17 virtually run on this particular action.
18 JUDGE BECHHOEFER:
Well, what we are saying, 19 however, is that the severe-accident portion is before the 20 Appeal Board, and, as far as we're concerned, it ought to be 21 in.
We've ruled that it's in.
We've deferred to the Appeal 22 Board or Commission, as the case may be.
If and when they 23 ' say we can ever litigate that, that will be back in the 24 ballpark.
We're not ruling that out.
But we are saying 25 that at this stage we think what we have now is adequate Heritage Reporting Corporation (202) 628-4888
593 1
and, subject to the addition of anything on accidents that 2
might get in later, would be enough to constitute and 3
adequate EA.
That's all we're holding.
4 So the accident considerations, which we believe 5
should be in there -- bot they're before the Appeal Board 6
right now.
So that's all we're saying.
We're not 7
disagreeing that that's something that ought to be taken l
8 into account in evaluating alternatives.
And any decision l
l 9
we made on this would have to be very clear that it involved 10 an assessment of the action, absent any consideration of 11 accidents -- or severe accidents, or beyond-design-basis 12 accidents.
So as far as we're concerned, that's still open, 13 but just not at this time here.
14 MS. CURRAN:
I' d also like to respond to the other l
15 point that Mr. Gad made.
I hate to say it, but I must 16 agree.
We agreed that in all other respects besides the 17 design, besides the accident risk, that these two 18 alternatives were essentially benign.
And I do think that i
1 19 the law requires us to at least come forward with some 20 demonstration that there is a preferable alternative.
I 21 think that is the threshold determination under Section 22 102 (2) (E).
23 JUDGE BECHHOEFER:
Well, do you think that we 24 couldn't make that determination based on what's currently i
25 in the record?
I had outlined one or two other matters, but Heritage Reporting Corporation (202) 628-4888 l
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594 1
they're definitely minor matters.
We might just put the 2
witnesses on the stand right now, and ask them the 3
questions, and allow parties to cross-examine if they wish, 4
and that would be it.
It would be very short.
Well, it 5
might be very short.
That's what I would hope.
6 If you believe that the EA -- on alternatives 7
only, now, because we're not talking about any other part of 8
it, the EA on alternatives as supplemented by the various 9
affidavits we've done --
Put it this way.
If the Staff 10 had put in everything that they had put in as an affidavit l
l 11 or everything that they and the Applicant have come up with 12 by way of affidavits at the time that it appeared in the 13 initial EA, would you then consider that apart from 14 accidents you had any complaint with the discussion of 15 alternatives?
16 MS. CURRAN:
Well, yes.
As an environmental 17 assessment, if it were required to consider alternatives, we 18 consider the consideration of alternatives to be deficient.
19 The question is --
20 JUDGE BECHHOEFER:
I said if it had come in with 21 all the supplemental affidavits filed by all the parties, if 22 that were the case, would you then consider it to be 23 deficient?
Because there are holdings to the effect that we 24 can write a decision which enhances either an EIS or 25 environmental assessment.
And we would propose to do so.
Heritage Reporting Corporation (202) 628-4888
j 1
'595 1
Again, we would exclude accidents from that until~the Appeal 2
Board rules.
But we could write a decision, and that would j
3 just enhance the EA sufficiently'to, hopefully, withstand.
4 attack.
5 MS. CURRAN:' There is one factor that would.
6
'possibly weigh in favor of the preferability of dry cask 7
storage, and that is the: proposed rule on dry' cask storage 8
that was proposed by the~ Commission on May 5, 1989.which!
'9 appears to indicate a policy preference or'a goal of 10 encouraging the use of dry cask storage and does: refer to 11.
some of the benefits, the' additional benefits of dry cask 12 storage.
13 JUDGE BECHHOEFER:
Well, you've sent us a copy of.
~
14 that, and we were independently ~ aware of that.-
And what's 15 in that statement of consideration certainly is before us, I 16 consider.
We might be able to rely on that in terms of 17 putting out our comparison of alternatives.
It's certainly 18 before us.
19 JUDGE LINENBERGER:
Ms. Curran, I have a problem 20 with what you just said, in the following regard.
I don't i
21 think I see that proposed policy statement steered in one i
i 22 direction or another.
I see it only -- and here forgive me,.
23 I may not know what I'm talking'about.
But I see it only i
24 recognizing that there is a second direction.
But I don't.
I
'25 see it explicitly, much less implicitly, taking sides as to 1
Heritage Reporting Corporation (202) 628-4888 i
l
i 596 1
which is a better direction.
2 MS. CURRAN:
It does discuss what it calls 3
operational advantages of dry cask storage, including that 4
the potential for corrosion of the fuel cladding and 5
reaction with the fuel is reduced because an inert 6
atnosphere is expected to be maintained inside dry spent 7
fuel storage casks.
This would seem to have some 8
environmental advantage to it, although I'm not sure of the 9
significance here.
I 10 JUDGE LINENBERGER:
Well, the problem I have with 11 that is -- and again I don't mean for this to sound like a 12 debate.
I'm looking for guidance.
The problem I have with 13 that is that I am not aware that there is any evidence that 14 wet storage just because it's wet has caused any problems.
15 Now, it is true that dry storage eliminates the 16 wetness, for sure.
But I'm not aware that anybody has 17 established that wetness is bad.
18 MS. CURRAN:
Well, I think it is the cause of the 19 corrosion.
This is the advantage that's seen by the Staff.
20 JUDGE LINENBERGER:
Point me in the direction of 21 something that talks about corrosion in fuel storage pools.
22 I need some guidance here.
23 MS. CURRAN:
Well, I bring this up; I realized 24 it's eleventh hour.
But partly, since coming to Vermont, 25 I've heard from my clients that there are problems with the l
l Heritage Reporting Corporation (202) 628-4888 j
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corrosion of the fuel in the storage pool at Vermont Yankee.
2 We have an in-house example. -This is purely from what-I'm 3
told, not from anything I've read.
4 MR. GAD:
Judge Linenberger, there is an ancient 5
Chinese proverb that says that one should step on questions 6
very quickly.
If you will turn to page 17 of the rebuttal 7
testimony of the Vermont Yankee panel, you'will' find this 8
issue discussed.
In fact, the Battelle Northwest 9
Laboratories has extensively studied the questions and has 10 concluded that the oxidation rate for spent nuclear fuel 11 stored in water storage pools is 0.009 micrometers, I guess 12 that is, per year.
This translates into approximately 13 1/1000 over a period of 3,000 years.
14 It is axiomatically true that dry storage i
15 eliminates the wetness that has now become a so-what 16 problem.
Begging your leave.
17 MR. TRAFICONTE:
Your Honor, could I be heard?
18 JUDGE LINENBERGER:
Excuse me.
I just want to 19 make sure whether you are, pardon me, challenging me or 20 agreeing with me.
J 1
21 MR. GAD:
I guess I was trying to do less of
)
22 either than to step on the question.
I thought I heard Your 23 Honor to say:
This may be a vacuum in my knowledge.
It l
24 has, in fact, been performed by Battelle and is in the 25 record here.
Heritage Reporting Corporation (202) 628-4888 l
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1 JUDGE LINENBERGER:
Yes, I realized that vacuum l
2 had been so filled.
]
i 3
MR. TRAFICONTE:
Your Honor, could I just briefly.
i 4-respond on behalf of the-Commonwealth to your ruling, or ao 1
5 least your preliminary ruling?
6 JUDGE BECHHOEFER:
Yes.
)
7 MR. TRAFICONTE:
As I understand it, and in
{
1 8
comment on Mr.' Gad's conclusions, if I understand it,,you I
9 have stricken what we believe are relevant portions of Dr..
1 1
10 Thompson's testimony.
But at the same time you have ruled
)
11 as a matter of law that the EA, in its discussion of 12 alternatives, is, as a matter of law, inadequate.
Juid 13 you're engaged, I take it, in the enterprise, either in the 14 rest of today or tomorrow, in supplementing the record to 15 the extent that the parties believe it's necessary or that 16 the Board believes it's necessary, so that the defects in 17 the EA could be resolved perhaps.
18 JUDGE BECHHOEFER:
Other than the accident --
19 MR. TRAFICONTE:
Other than the accidents.
20 JUDGE BECHHOEFER:
Which is upstairs with the 21 Appeal Board.
22 MR. TRAFICONTE:
I understand that.
I understand.
23 The problem I have, and again on behalf of the Commonwealth, 24 is that I also find myself agreeing with Mr. Gad.
The 25 Interveners believe that these two technologies are both l
Heritage. Reporting Corporation (202) 628-4888 L_________
1
599 1
environmentally benign.
2 I appreciate.that you have ruled that there is a 3
conflict over a resource.
And there is.
But the conflict 4
we've articulated is based on the accident analysis..And if i
5 you've stricken the accident analysis, rightly'or wrongly, 6
I'm not sure on what basis you have found there to be a j
l 7
conflict to proceed with the conclusion as a matter of law l
8 that the EA is inadequate.
9 JUDGE BECHHOEFER:
We believe that the resource is a
10 the pool itself.
i 11 MR. TRAFICONTE:
There's no dispute that we l
12 articulated a resource.
i 13 JUDGE BECHHOEFER:
However it's used.
I mean, l
14 however the situation, whether it's an accident or used i
15 normally, the resource is the pool.
16 MR. TRAFICONTE:
Yes, and the conflict we've q
17 identified that's connected to that resource, the reason why 18 that resource is in dispute, is based on an accident l
19 analysis connected to a particular use of the resource.
s 20 It's intimately connected.
21 JUDGE BECHHOEFER:
Do you believe that the hard i
22 look required has not been taken?
I don't think the Appeal 23 Board --
Of alternatives now, I'm saying, not anything 24 else, because nothing else on the EA is before us or is up 25 for our consideration.
But we believe that absent the Heritage Reporting Corporation (202) 628-4888
1 600 1
additional affidavits and statements, perhaps the excerpts I
1 2
to some extent from the proposed rule-making, absent I
i 3
supplementation with that material, the EA as written would 4
not be adequate.
This is like saying that the supplemented J
l 5
analysis, both by the Applicant and the Staff and by you 6
people, or by NECNP, I should say -- I. guess you; joined them
)
'7
-- with very limited exceptions, and that's.the few 1
8 questions we thought we had to ask, and maybe we don't even i
9 have to ask those questions, but perhaps we will.. With that i
10 addition, we think the EA would be' adequate, and we would j
3 11 write a statement about the alternative of dry. cask storage.
12 We don't think, by the way, that,. absent 13 accidents, the conclusion that both have environmentally 14 insignificant impact, some more or some less degree,-is 15 disturbed.
So the only thing that would get changed would 16 be the discussion, which would then be available to the
]
17 public, to the decisionmaker, or anybody else that wants to 18 look at it.
19 MR. GAD:
What Mr. Traficonte is saying -- and he 20 is entirely correct, Your Honor'-- is that in this context, 21 an operating license amendment, the scope of the controversy l
22 is defined by what the parties are disagreeing about.
And 23 they are not disagreeing.
The scope of-the look that need
)
24 be taken is not defined by NEPA.
It is defined by that 25 controversy.
Heritage Reporting Corporation (202) 628-4888
._i_
1
?
601' 1
Based on the statements of NECNP.and the 1
j
'2 Commonwealth -- and I salute them for.their candor --~.given 3
the Board's ruling there is no controversy, given that there i
4-
'is'no controversy, no alternatives need be taken.
And given l
5 that, it doesn't matter how-hard or soft it was; it was l
I 1
6 gratuitous.
. '1 7
i
. l 8
l 9
'j i
10-
- i 11 l
12 4j 13 i
1 14 i
15 l
'1 l
16 I
2 i
17 18 19 t
20 21
~
l 22 1
23 l
24 l
25 i
i Heritage Reporting Corporation
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JUDGE BECHHOEFER:
Did the Staff wish to say 2
something at this point?
I had thought I saw you preparing i
3 to want to say something.
4 MS. JEHLE:
Yes.
We agree with Mr. Gad's position i
l 5
that, once the severe accident basis has been taken away, j
6 there's nothing remaining to be considered.
7 MR. TRAFICONTE:
Your Honor, I think it has to do 8
with what is the scope of the conflict over the resource.
9 Because our position on that matter is connected to the 10 accident analysis, and because we're otherwise in agreement 11 that these are environmentally benign technologies but for 12 the accident consequences, I frankly don't see what the 13 conflict over the resource is that survives the striking of 14 these portions of the testimony.
Once you get down to that 15 point, the Staff -- I never thought I'd find myself in this 16 position -- the Staff has done all it would have to do, even 17 if it amounts to basically a boilerplate.
18 JUDGE BECHHOEFER:
Right.
But do you think the 19 evaluation of the dry cask storage alternative, apart from 20 the avoiding accidents question, is sufficient?
Some of the 21 cases that we read seem to say that it isn't.
22 MR. TRAFICONTE:
Could you repeat the first part 23 of your question again?
l 24 JUDGE BECHHOEFER:
Do you think that the 25 environmental assessment, as it stands on the consideration Heritage Reporting Corporation (202) 628-4888 n
603 1
of dry essk storage, and absent accidents, is sufficient?
2 Do both Interveners believe that?
We believe that, as a 3
matter of law, it wasn't.
I suppose we could reverse 4
ourselves and say that, without contest, we won't decid.e the 5
question; we could do that, too.
6 We don't happen to believe it's adequate, although 7
we believe that, supplemented with the quite extensive 8
material that's bafore us, it clearly could be made 9
adequate.
That was what our view is, and that, therefore, 10 it wouldn't be necessary to go into a full evidentiary 11 hearing, but we thought you could supplement the EA with the 12 additional material.
But if you're now saying that, aside 13 from the accident question, which we don't think is now 14 before us, the EA is perfectly adequate, then that -- we 15 would perhaps reach a different result legally, because we 16 were trying to respond to claims that you have to take a 17 hard look and that the EA wasn't adequate, that the 18 conclusion reached of non-availability and time uas a flawed 19 conclusion paused in part by the Staff delaying in bringing 20 up the statement, and that kind of thing.
So we thought 21 that we would have to deal with that as resolving your 22 contention.
23 If all that's withdrawn, then we don't, but if 24 it's before us, then I think we have to rule on it.
What we 25 were trying to do is establish enough of a record for us to Heritage Reporting Corporation (202) 628-4888
I
.l 604 l
l 1
issue.a semi-intelligent decision.
1 2
MR. GAD:
In defense of the opposition,LYour 3
Honor, it's not that it is withdrawn.
It's that it was I
4 never advanced beyond the accident scope.
All of;the claims 5
that you just recited were derivative of'the accident' scope.
l I
6 Don't-press them to withdraw it; recognize what they're 1
O 7
' telling you:
it was limited to the accident scope, and once
.j
.8 you have ruled the accident scope out -- correctly in some.
)
9 people's judgment,; incorrectly in others',~but nonetheless 10 done -
you have eliminated 100 percent of their objection, 11 and therefore, there is no more contest.
It's not a i
12
-question of withdrawing.
13 MS. CURRAN:
I wouldn't want to be heard saying.
14 that the environmental assessment was' adequate.
I don't 15 think under any circumstances it's acceptable to reject an
)
16 alternative out of hand, because it would take too long 17 without an explanation of that.
18 However, 1 also think that we have not reached the i
19 point where we can say that a hard look at that alternative 20 was required in this case.
So I think there's really two 21 different --
We don't seek any ruling, and we wouldn't want 22 to have a ruling that the environmental assessment was 23 adequate or that it was correct in all of its 24 conclusions --
25 MR. GAD:
Only that it's no longer contested, Heritage Reporting Corporation I
(202) 628-4888 l
1 ----
605 1
given the ruling.
Fair?
2 JUDGE BECHHOEFER:
Well, then, would our action be 3
not to try to supplement the EA at this time, but to issue a 4
ruling saying that accidents are not properly before us at 5
this time?
I don't think we would dismiss environmental 6
contention 3 if it still have the preferred basis, but we 7
would just say that the remaining aspects are essentially 8
moot, because they are essentially not contested, and that 9
we should await the Appeal Board's ruling before deciding 10 what to do finally with the comparison of alternatives.
11 MR. GAD:
To be both precise, Your Honor, and fair 12 to everybody, I respectfully submit your ruling ought to be 13 thus:
14 Paragraph 1.
What you already ruled about the 15 motion to strike.
16 Paragraph 2.
Given paragraph 1, there is no 17 further contest on environmental contention 3 as we admitted 18 it in October.
Period.
19 I respectfully submit that environmental 20 contention 3, as admitted in October, now has to be 21 dismissed.
Whether or not it comes back, it ought to come 22 back with a life of its own.
The part that you excluded in 23 October was excluded, and for the moment it remains 24 excluded.
25 I raise this for a bunch of reasons, not the least Heritage Reporting Corporation (202) 628-4888
a 606 1
of which is'that your' computer has-to close out issues, not-
]
2 keep them open,'and in fact,. were the Appeal Board toiaffirm 3
what happened on the matter'now before'it,. environmental 4
' contention 3, that little accident aspect.of it, you will' 5
find -- maybe people don't. buy it'right now, but they will i
l 61 -when you think about it'in the morning -- has become totally 1
7 subsumed in environmental contention 1.
So I suggestito you 8
that.there is not.a lot of'need to preserve a number.-
It's 9
not good practice to preserve a number.
But.it's going to 10 confuse us-all something fierce.
11 JUDGE BECHHOEFER:
Well,.the only reason I raised-12
'it is bec.:ase conceptually,.if one of the differences of dry.
13 cask storage is-the risk of-an accident one way'or the other l
14
-- and that has been alleged -- we would need to preserve a 15 vehicle for dealing not only with the. risk of the accident, 16 but the risk as it affects the comparison of alternatives.
17 If we should dismiss this contention now, I wonder whether 18 we have the vehicle', without going into late-filed 19 contentions and all that stuff.
That I don't want to 20 happen.
21 MR. GAD:
No, no.
The vehicle is the portion --
22 if you will, the aspect -- of environmental contention 3-23 prime, if we're bent on numbering, that you excluded when 24 you created that division in October when you excluded.
25 You incorporated by reference or, more precisely, employed Heritage -Reporting Corporation (202) 628-4888
607 1
that same division in February.
If, in fact, it survives, 2
then that division exists.
Don't do it by purporting to 3
keep some shadow of the other ones still existing, because 4
five years from now none of us will ever figure out why.
5
- Moreover, I. submit that, by the morning, it will 6
now become obvious that, if the Appeal Board goes along with 7
LBP-896, in fact, environmental contention 3 prime will be 8
an indivisible, inextractable portion of environmental 9
contention 1, and you won't need the number.
10 MS. CURRAN:
That's one possible outcome, but it 11 may be that the Appeal Board will decide something with 12 respect to, "We can't litigate the accident contention for 13 purposes of an EIS, but maybe for purposes of an EA."
The 14 basis for our contention that we litigated here today, on 15 the inadequacy of the EA and the timing things, would still 16 remain alive.
We haven't been able to get to those here, 17 because we weren't able to satisfy the predicate condition, 18 but if we do, then these issues that we are discussing right 19 now, in terms of the adequacy of the EA in each respect of 20 timing and cost, et cetera, will become relevant again, and 21 I would not like to have to refile a contention about all 22 those things that are really, I think, still alive and 23 should be defe med until we get the Appeal Board's ruling.
24 JUDGE BECHHOEFER:
Mr. Gad, any comments?
25 MR. GAD:
If we give credence to what the Board Heritage Reporting Corporation (202) 628-4888
d 608 1
did in October -- it took what was submitted as a single 2
contention and said, " Nope.
There are two contentions here.
]
3 One's in; one's out."
The one that is out is not before us 4
today.
The one that was in we now know isn't in contest.
5 The one that was in and isn't in contest should now be fl 6
dismissed for lack of contest.
The one that was out then 7
will, if the Appeal Board resuscitates it, come back without 8
the need for filing anything else, and"without the need for 9
meeting 2714-a criteria.
I withdraw from the assertion --
]
10 not because I don't believe it, but only because it's 11 confusing things -- that it has no logical possibility of 12 coming back.
l 13 If it comes back, it comes back.
You don't have j
14 to preserve the one that's not in dispute in order to have 15 the other one, which you already drew a box-arcund, come 16 back.
17 JUDGE BECHHOEFER:
What about the allegations, 18 which I thought were before us today -- may well be before 19 us again, but I'm not sure -- and that's that the conclusion 20 that the dry cask storage option was not preferable because 21 it couldn't be available in time, and what happens to that, 22 of which serious challenge has been taken today and 23 throughout the course of this whole contention?
Does that 24 come back, too?
25 MR. GAD:
It would if anybody on my side relied Heritage Reporting Corporation (202) 628-4888 l
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609 1
upon it.
2 Let's play this out, if you'll give me just 30 3
seconds.
Let us assume -- I submit contrary to all reason, 4
but nonetheless -- that the Appeal Board says that we may 5
not take into account the beyond-design-basis accident 6
consequences of risks in assessing an EA, and for some 7
reason the 102 (2) (C) isn't around.
I think it's a difficult 8
nypo, but let's struggle with it.
NECNP would now come in 9
and say, "The EA is inadequate, because it doesn't talk 10 about this risk and the possibility of avoiding it through 11 dry casks."
It is up to those who say they are wrong to 12 pick and choose among their defenses.
13 One defense is that dry cask doesn't eliminate the 14 risk.
Another defense is that the risk ain't there.
A 15 third defense is that dry cask has its own risks.
Somewhere 16 down on the list is a defense that says that dry casks maybe 17 would eliminate that one, but it's not an alternative, 18 because it won't do the job.
That's how the issue comes in 19 if it comes in.
20 JUDGE BECHHOEFER:
Or would it be better for us to 21 preserve that aspect of it, maybe just as an additional 22 challenge to the EA, but not litigable independently.
I 23 hate to have things drop out and then have all the trouble 24 the Commission creates to get something back in.
I'm just 25 troubled in principle by that.
Heritage Reporting Corporation (202) 628-4888
n--
610 1-MR. GAD:
Let me'see if I can put your mind'at' 2
ease.
3 Understand.that you and I.are now quibbling over 4
what everyone else in the room regards'to be an arid 5
procedural obscurity of no. significance whatsoever, and so I 6
apologize.
1 7
MR. TRAFICONTE:
Not everybody in the room'would 8-think.so.
9 JUDGE'LINENBERGER:
That's right.
10 MR. GAD:
I think I'm covered all around.
11 What Your Honor propose, you.see, is to preserve a 12
-contention that has now been established beyond' cavil to be 13 not in dispute, in order to be sure that another. contention,'
14 presently in the critical care unit,-but not. dead.yet, has 15 the ability to walk again if it gets resuscitated.
Now, I i
16 have asserted to you on the record, and I will do it again, 17 if the Appeal Board were to say that LBP-896's: treatment of i
18 the accident portion of environmental contention 3 was okay, 19 I assert to you, this Applicant will never contend that we 20 then have to meet late-filed pleading rules fresh.
Because i
21 there's a limit on what even I'll argue.
l 22 So I respectfully suggest to Your Honor that you 23 don't need to do it, and what you're doing, you see, is 24 preserving a contention that's not in dispute, and that l
25 isn't right, it isn't neat, it isn't orderly.
It's not Heritage Reporting Corpor' tion a
(202) 628-4888
611 1
right.
2 MR. TRAFICONTE:
Let me just speak very briefly on 3
this.
4 JUDGE BECHHOEFER:
Yes.
5 MR. TRAFICONTE:
I think this is actually simply 6
than Mr. Gad might believe.
It sounds to me like you're now 7
of the view that the evidence that we submitted we believed 8
was independent of the deferred, certified basis.
You're of 9
the. view that it was intimately connected, and you cannot 10 entertain it.
However, it's our view that our challenge to 11 the EA is based on that, so, in essence, you have' deferred 12 the basis and the contention that we thought we had an
)
I 13 opportunity to challenge now based on the accident analysis, i
14 These issues about the inadequacies of the EA will 15 come back -- of-course they would -- if the Appeal Board-16 permits litigation on the accident analysis point, and they 17 should come back, since that is the very contention and 18 bases that's been deferred.
So I don't think any contention 19 should be dismissed.
Instead, I think it should be ruled 20 that, in effect, the contention in the relevant portion and 21 the bases were certified to the Appeal Board.
That's all, 22 and then you've made the ruling today that the Interveners 23 are not going to be permitted to make any other challenge 24 and any other attack on the EA if that attack is based on an 25 accident analysis.
l Heritage Reporting Corporation (202) 628-4888 l
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]
612 i
1
'From our perspective, you have narrowed the i
2 evidentiary attack or-challenge thatLwe can make to the EA, 3
and you've narrowed.it to conform it to the basis that you 4
have. certified.-
So,'from our perspective, the contention
]
l 5
and the bases that's.been certified then becomes what is-
)
6 left'of environmental contention 3, but nothing'should be 7
dismissed.
8 JUDGE BECHHOEFER:
Well, I was asking about the 9
remaining part of ths basis, which we were talking abott' 10 today.
l 11 Ms. Curran?
I 12 MS. CURRAN:
Let me just say one more thing.
I 13 It seems to me that something. kind of awkward has-1 14 happened here.
The contention that was admitted for 15 litigation here today, environmental contention,3, had a 16 basis.that they were unresolved conflicts, and you said we 17 would have the opportun.'ty to demonstrate those conflicts.
18 On the other hand, you referred -- the only way that we 19 could demonstrate those unresolved conflicts, in order to 20 get into the question of whether the EA was adequate.
So I 21 think you have to put those two things back together and 22 maintain the entire contention in abeyance'so that we can 23 have our opportunity to make that showing that we need to J
24 make in order to meet that standard.
25 (Pause for Judges to confer. )
Heritage Reporting Corporation l
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---_--_______--_------------2
613 1
JUDGE BECHHOEFER:
The Board believes that we will 2
issue a ruling which allows the State a basis for 3
environmental contention 3 to stay in, and that applies 4
equally to both parts of the contention.
If we leave that 5
basis in, we can rule that ~ tere is no longer any dispute as 6
to the remainder, and the contention itself, to the extent 7
it claims that the EA is inadequate with respect to 8
alternatives, except in consideration of accidents, would be 9
settled or resolved.
We can rule to that effect, leave the 10 other basis in, so that, if they want to challenge the sort 11 of RI2 forma treatment of alternatives, they can do so, if 12 they have the chance based on accidents.
That's one way 13 out.
Would the parties agree with that?
14 We want to make it simpler to have a contention 15 based on the inadequate treatment of alternatives left in, 16 and of course that part of the basis has been referred to 17 the Appeal Poard, but in effect, portions of this basis are 18 applicable across the board, so I think that's probably the 19 easiest way to do it.
20 MR. GAD:
The problem is, Your Honor, from 21 everything I've heard, there is no disagreement in substance 22 amongst any of us here in the pit or you up there.
The one 23 reservation I'll say at once and I'll quit, because I'm 24 quickly losing interest, is this:
Your record at the end of 25 today ought to be such that, unless the Appeal Board Heritage Reporting Corporation (202) 628-4888 9
d
)
614 1
vindicates LBP-896, you don't have to do anything more to 1
2 close out --
1 3
JUDGE BECHHOEFER:
That clearly.will be the' case.
j 4
I never.had anything other'than that in mind.
5 MR. GAD: 'Well,7 but the way you're structured it, 6
. you see,. with. the environmental contention 3 'Inndoer held 7
open, then the' Appeal Board acts. Let's.say the Appeal-8 Board, frankly, reverses what you.did.
Now you have to come 9
back:and have a closing order to get. rid of that number,. or J
10 somebody~-- after we're all killed by a speeding truck on-l 11 route 9 -
goes back and reads the record, he'll'have no way 12 of figuring out why it is that docket-number was:open, 13 unless he goes through and reads this transcript today.
We 14 really don't want to will that on anybody.
15 I respectfully submit that, in October,-you 16 divided the contention in two.. Today:you disposed of 17 whatever it was you admitted in October.
Today there 18 remains open whatever it was your admitted in LBP-896, and' 19 that ought to be the ruling at the end of today.
If 896 20 never gets resuscitated, you don't need-any more closing 21
- orders, 22 Maybe I have a fetish for procedure, needlessly, 23 and I apologize.
24 (Pause for Judges to confer. )
25 JUDGE BECHHOEFER:
In the order we'll issue, we'll Heritage Reporting Corporation 1
(202) 628-4888
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615 1
make it.very clear that, to the extent we retain the basis-1 J
2 that was considered today, we will do it only to the extent 3
our accident ruling is affirmed by the Appeal Board or 4
Commission, as the case may be.
We.might give.it'another 5
number, cn: we might do something to differentiate it, but we J
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don't want to hear claims that the Interveners had no basis 7
for saying that the'-- had not provided a basis for saying q
8 that the existing comparison of alternatives is inadequate,
-)
9 even as to accidents.
So I think we will preserve the basis 10 itself, which attacks the rather perfunctory treatments of 11 alternatives.
12 I would guess that we would probably not put down 13 our general ruling that the EA as written is inadequate.as a 1
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14 matter of law, because, if the contest is withdrawn, we j
i 15 shouldn't really make that.
I might tell the parties.again i
l 16 that we believe it and that we hope the Staff does.better, I
17 and we may-say so in some sort of an order.
But we believe 18 102 (2) (E) requires a little bit more, but, given the
)
19 parties' position, we will not base our ruling on that.
20 So, with that,'is there anything further before we 21 adjourn?
22 I guess environmental contention 3 (a) will be 23 dismissed, but 3 (b) will be awaiting approval or whatever 24 else might occur to it.
25 With that, anything further before we adjourn?
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616 1
(No response.)
2 JUDGE BECHHOEFER:
We're adjourned.
3 (Whereupon, at 6:03 p.m.,
the proceedings in this 4
matter were concluded.)
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Heritage Reporting Corporation (202) 628-4888 L
1 CERTIFICATE 2
3 This is to certify that the attached proceedings before the 4
United States Nuclear Regulatory Commission in the matter 5
of:
6 Name: Vermont Yankee Nuclear Power Corporation
)
(Vermont Yankee Nuclear Power Station) 7 8
Docket Number: 50-271-OLA l
9 Place' Brattleboro, Vermont 10 Date:
June 21, 1989 11 were held as herein appears, and that this is the original 12 transcript thereof for the file of the United States Nuclear 1
13 Regulatory Commission taken stenographically by me and, 14 thereafter reduced to typewriting by me or under the 15 direction of the court reporting company, and that the 16 transcript is a true and accurate record of the foregoing 17 proceedings.
18
/s/
n 19 (Signature typed) :
Mark Handy 20 Official Reporter 21 Heritage Reporting Corporation 22 23 24 25 Heritage Reporting Corporation l
(202) 628-4888
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