ML21323A160
| ML21323A160 | |
| Person / Time | |
|---|---|
| Site: | Oconee  |
| Issue date: | 11/19/2021 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 22-973-01-SLR-BD01, 50-269-SLR, 50-270-SLR, 50-287-SLR, NRC-1737, RAS 56309 | |
| Download: ML21323A160 (135) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Duke Energy Carolinas Docket Number: 50-269-SLR, 50-270-SLR, 50-287-SLR ASLBP Number: 22-973-01-SLR-BD01 Location: teleconference Date: Tuesday, November 16, 2021 Work Order No.: NRC-1737 Pages 1-134 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1716 14th Street, N.W., Suite 200 Washington, D.C. 20009 (202) 234-4433
1 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3 + + + + +
4 ATOMIC SAFETY AND LICENSING BOARD PANEL 5 + + + + +
6 HEARING 7 ------------------------x 8 In the Matter of: : Docket Nos.
9 DUKE ENERGY CAROLINAS, : 50-269-SLR 10 LLC : 50-270-SLR 11 (Oconee Nuclear Station,: 50-287-SLR 12 Units 1, 2, and 3) : ASLBP No.
13 : 22-973-01-SLR-BD01 14 ------------------------x 15 Tuesday, November 16, 2021 16 Video Teleconference 17 18 19 BEFORE:
20 G. PAUL BOLLWERK III, Chair 21 NICHOLAS G. TRIKOUROS, Administrative Judge 22 DR. GARY S. ARNOLD, Administrative Judge 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
2 1 APPEARANCES:
2 On Behalf of Duke Energy Carolinas, LLC:
3 RYAN LIGHTY, ESQ.
4 PAUL BESSETTE, ESQ.
5 of: Morgan, Lewis & Bockius, LLP 6 1111 Pennsylvania Avenue, NW 7 Washington, DC 20004 8 202-739-5274 (Lighty) 9 ryan.lighty@morganlewis.com 10 paul.bessette@morganlewis.com 11 12 On Behalf of Beyond Nuclear, Inc., and the 13 Sierra Club, Inc.:
14 DIANE CURRAN, ESQ.
15 of: Harmon, Curran, Spielberg and Eisenberg 16 1725 DeSales Street, NW 17 Suite 500 18 Washington, DC 20036 19 240-393-9285 20 dcurran@harmoncurran.com 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
3 1 PAUL VERNON GUNTER, ESQ.
2 7304 Carroll Avenue 3 Suite 182 4 Takoma Park, MD 20912 5 301-270-2209 6 paul@beyondnuclear.org 7
8 On Behalf of the Nuclear Regulatory Commission:
9 MARY F. WOODS, ESQ.
10 JOSEPH AZEIZAT, ESQ.
11 MEGAN WRIGHT, ESQ.
12 of: Office of the General Counsel 13 Mail Stop - O-14A44 14 U.S. Nuclear Regulatory Commission 15 Washington, D.C. 20555-0001 16 301-287-3514 (Woods) 17 mary.woods@nrc.gov 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
4 1 P R O C E E D I N G S 2 1:00 p.m.
3 CHAIRMAN BOLLWERK: Good afternoon. This 4 is Administrative Judge Paul Bollwerk, Chairman of the 5 Atomic Safety and Licensing Board, and today we're 6 here to conduct an initial prehearing conference and 7 oral argument in the subsequent license renewal 8 proceeding in which Applicant, Duke Energy Carolinas 9 LLC, or Duke, requests that the 10 Code of Federal 10 Regulations, or CFR Part 50, Operating Licenses, for 11 its Oconee Nuclear Station, Units 1, 2 and 3, be 12 extended for a second 20-year period; that is, until 13 February 6, 2053, October 6, 2053, and July 19, 2054, 14 respectively.
15 In response to a July 28, 2021 hearing 16 opportunity notice published in Volume 86 of the 17 Federal Register at page 40,662, on September 27, 18 2021, Petitioners Beyond Nuclear, Inc. and Sierra 19 Club, Inc., submitted a hearing petition that included 20 three contentions and an associated waiver request 21 under 10 CFR Section 2.335, challenging Duke's 22 subsequent license renewal request.
23 Previously in our October 29, 2021, 24 issuance regarding procedures for this initial 25 prehearing conference, we indicated the Petitioners' NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
5 1 contentions two and three, entitled, respectively, 2 Failure to Consider New and Significant Information 3 Regarding Significant Impacts of Reactor Accidents 4 Caused by Failure of Jocassee Dam, and Failure to 5 Consider New and Significant Information Affecting 6 Duke's Analysis of Severe Accident Mitigation 7 Alternatives, would be the focus of the conference.
8 In these issues statements, Petitioners 9 claim that the Environment Report, or ER, that 10 accompanies Duke's subsequent license renewal 11 application, fails to satisfy the NRC regulations 12 implementing the National Environmental Policy Act, or 13 NEPA.
14 More particularly, Petitioners declare 15 that the ER does not comply with Sections 51.53(c)(2) 16 and 51.45(a) of the Agency's NEPA regulations, because 17 it does not address the environmental impacts of 18 operating the Oconee facility during the extended 19 subsequent license renewal term, including the effects 20 on Duke's Severe Accident Mitigation Alternatives, or 21 SAMA, analysis, given the significant risk of a core-22 melt accident caused by a failure of the nearby 23 Jocassee Dam.
24 In addition, because these contentions 25 involve a NEPA Category 1 issue or the equivalent, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
6 1 that for the listing in Table B-1 of Part 51, 2 Subpart A, Appendix B, of the Agency's NEPA 3 implementation provisions, presumably would be barred 4 from consideration in this subsequent license renewal 5 proceeding, Petitioners ask that we find their 6 Petition requesting a Section 2.335 waiver of 7 Section 51.53(c)(3)(I), 51.53(c)(3)(ii)(L), 51.71(d) 8 and 51.95(c)(1), meet the four-part test for granting 9 such a waiver, so as to permit consideration of their 10 contentions.
11 In answers dated October 22, 2021, the 12 Nuclear Regulatory Commission Staff and Duke seek the 13 denial of Petitioners' hearing request, asserting that 14 while Petitioners have established their standing to 15 intervene, they nonetheless have failed to show that 16 they are entitled to a waiver under Section 2.335, or 17 to submit an admissible contention.
18 In a November 5, 2021 reply, Petitioners 19 against declared that they should be admitted as 20 parties to this proceeding because their Waiver 21 Petition and contentions meet the applicable 22 regulatory standards in Sections 2.335 and 23 2.309(f)(1), governing waivers and contention 24 admissibility.
25 This prehearing conference has been NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
7 1 convened to conduct an oral argument that will allow 2 the participants to present their positions regarding, 3 and respond to, Board questions concerning the 4 contested matters of the sufficiency of Petitioners' 5 Waiver Petition and the admissibility of their two dam 6 failure impacts contentions.
7 Before beginning the argument, I'd like to 8 introduce the Board members, and then have the 9 representatives of the participants identify 10 themselves for the record, along with any individuals 11 they have designed as available to provide them 12 assistance in responding to the Board's questions.
13 The Administrative Judges, Nicholas 14 Trikouros and Gary Arnold, the two technical members 15 assigned to this Licensing Board, are both nuclear 16 engineers.
17 As I indicated at the outset, my name is 18 Paul Bollwerk. I'm an attorney and, as I indicated, 19 the Chairman of this Licensing Board.
20 Judge Arnold and I are participating via 21 video connections from the Licensing Board Panel's 22 Rockville, Maryland, offices, as are our law clerks, 23 Brooke Taylor and Allison Wood, while Judge Trikouros 24 is connected from his home in New Jersey.
25 At this point, I'd like to have counsel NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
8 1 for the various participants identify themselves for 2 the record, as well as the individuals they have 3 designated as potentially providing them with 4 assistance in responding to Board questions.
5 Why don't we start with the Petitioners, 6 then move to Applicant Duke, and finally, the NRC 7 Staff. Ms. Curran?
8 MS. CURRAN: Good afternoon Judge 9 Bollwerk, Judge Trikouros, Judge Arnold. My name is 10 Diane Curran. I represent the Petitioners, Beyond 11 Nuclear and the Sierra Club. And with me in the room 12 today is Paul Gunter, who is Director of Reactor 13 Oversight Project at Beyond Nuclear, and Jeffrey 14 Mittman, who is the Petitioners' expert in this 15 proceeding. Thank you.
16 CHAIRMAN BOLLWERK: Thank you. Duke, 17 please?
18 MR. LIGHTY: Good afternoon, Your Honors.
19 Ryan Lighty of Morgan Lewis and Bockius, LLP, 20 appearing for the Applicant, Duke Energy Carolinas 21 LLC. And joining me today are my colleagues and 22 counsel of record, Paul Bessette, also of Morgan 23 Lewis, and Tracy LeRoy of Duke Energy Corporation.
24 CHAIRMAN BOLLWERK: All right, thank you.
25 And the NRC Staff?
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
9 1 MS. WOOD: Good afternoon, Your Honors.
2 My name is Mary Frances Wood. And with me in the room 3 today is my co-counsel on this matter, Mr. Joe 4 Azeizat, as well as NRC Staff members Kevin Folk and 5 Angela Wu. My other co-counsel in this matter, Megan 6 Wright, is available remotely.
7 And additionally, with permission of the 8 Board if I need to confer with NRC Staff during the 9 oral argument, I do have some additional Staff 10 available remotely.
11 CHAIRMAN BOLLWERK: All right, thank you.
12 MS. WOOD: Thank you, Your Honor.
13 CHAIRMAN BOLLWERK: Notwithstanding we're 14 using a video link via WebEx to which the court 15 reporter has access, I would ask that as a courtesy to 16 those members of the public and others who are joining 17 us via a listen only telephone connection, as they 18 start to speak in delivering their argument or 19 responding to a Board question, counsel should please 20 identify themselves so that it will be clear who is 21 talking.
22 Also, I would ask that after the 23 conference is adjourned, counsel for the participants 24 should stay connected until we confirm with the court 25 reporter that there's no spelling or other clarifying NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
10 1 information needed for transcript preparation.
2 Additionally, as the participants' 3 representatives are aware, we are attempting to 4 monitor everyone's connectivity in an effort to see if 5 anyone drops off unexpectedly, so we can take steps to 6 try to ensure we don't move forward with the argument 7 until they are able to reconnect via video link or 8 telephone.
9 And I would note again that we made 10 available to the participants and interested members 11 of the public, including via a Board issuance in this 12 case, an NRC website notice, and an Agency press 13 release, information on how to access this conference 14 by telephone on a listen-only basis.
15 We hope that those members of the public, 16 or others who wish to listen to this conference, have 17 been able to access the bridge line this afternoon.
18 I would observe as well that this 19 proceeding is being transcribed and a transcript will 20 be available to the participants late this week or 21 early next week via the Agency fee-filing system 22 notice, with incorporation into the NRC's publicly 23 available electronic hearing docket, shortly 24 thereafter.
25 As to the process that we'll follow for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
11 1 today's argument, as we outlined in our October 29, 2 2021 issuance, each participant's designated 3 representative has been allotted a period of time 4 within which to present its position regarding these 5 matters.
6 We'll hear first from Petitioners, who 7 have been given a total of 30 minutes, of which they 8 may reserve up to ten minutes for a rebuttal 9 presentation, following the Duke and Staff 10 presentations.
11 Duke and the Staff will be heard from in 12 that order, have each been allotted 20 minutes to 13 present their arguments.
14 And while Board members normally might 15 interpose questions during a participant's argument 16 presentation, in this instance we'll endeavor to wait 17 until all the participant presentations are concluded.
18 Thereafter, following a short break, we'll 19 explore the questions that have been raised in the 20 light of their presentations and filings regarding the 21 two contentions that are the focus of the argument.
22 I would observe as well that the matters 23 at issue before the Board have been fully briefed and 24 we read the participants' pleadings. So, as we 25 indicated in our October 29, 2021 Order, we hope the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
12 1 participants in their arguments will focus on 2 identifying the principal points in controversy, and 3 any information that supports or rebuts their legal 4 and/or factual claims regarding those matters.
5 And as we also note there, because this 6 argument is not an evidentiary hearing, participants 7 should not attempt to introduce evidence during the 8 argument.
9 Also, we would note that some information 10 cited by the participants in their pleadings consisted 11 of material redacted, at least in part, because it 12 contained non-public information relating to facility 13 security and other matters.
14 While we do not anticipate discussing any 15 non-public information this afternoon, we rely in 16 particular on Applicant Duke and the NRC Staff to 17 alert us that something being discussed might be 18 verging on non-public information, so we can refrain 19 the inquiry to avoid any problematic disclosures.
20 And finally, this session hopefully will 21 not go much more than three hours.
22 And all that being said, let me turn to 23 Ms. Curran and find out how much time you'd like to 24 reserve for rebuttal.
25 MS. CURRAN: Thanks, Judge Bollwerk. I'm NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
13 1 going to reserve ten minutes, please.
2 CHAIRMAN BOLLWERK: All right, very good.
3 Then you have the floor.
4 MS. CURRAN: All right, thank you very 5 much. All right, I'd like to address a couple of 6 issues in the time I've been given, particularly the 7 scope of the NEPA license renewal review in this 8 proceeding.
9 Second, the environmental significance of 10 NRC's outstanding safety evaluations in 2011. Third, 11 what is new and significant about the information 12 submitted by Petitioners. Third, what are the unique 13 and special circumstances in this case such that a 14 waiver should be granted.
15 And then finally, I'd like to respond to 16 some of the criticisms of Mr. Mittman's technical 17 evaluation of the Environmental Report.
18 Starting with the legal framework. On 19 page 16 of the NRC Staff's response to our hearing 20 request, the Staff states, because the Petitioners 21 raise issues that are addressed through the NRC's 22 normal ongoing regulatory oversight of the Oconee 23 facility, they have failed to offer an admissible 24 contention.
25 Respectfully, the Staff's assertion is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
14 1 erroneous in two key respects. First, the Staff bases 2 its argument on an incorrect interpretation of NRC 3 case law and the license renewal GEIS regarding the 4 scope of NEPA review.
5 The NRC Staff relies on a case, Tennessee 6 Valley Authority, LBP 13-8, 7(b)(8), NRC 1, that is a 7 case that was based on the Atomic Energy Act safety 8 review.
9 But there's no dispute here that the NRC 10 has excluded a number of issues from the Atomic Energy 11 Act base license renewal rule, including flooding 12 risk.
13 This is based on the assumption that 14 ongoing regulatory oversight will take care of those 15 issues.
16 That's what the TVA case cited by the 17 Staff says. That's what you'll find in many other 18 license renewal cases, undisputed.
19 But the legal framework for an Atomic 20 Energy Act-based license renewal review does not apply 21 to NEPA reviews. NEPA is a separate and independent 22 statute which requires the NRC to examine all 23 reasonably foreseeable significant environmental 24 impacts, without qualification, without limitation.
25 This is one of the holdings of the Calvert Cliffs NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
15 1 decision cited at page 5 and 6 of our reply.
2 Only if NEPA or the Atomic Energy Act 3 exempted Atomic Energy Act issues from NEPA, could the 4 NRC ignore safety issues under NEPA.
5 That's not to say the NRC cannot use the 6 Atomic Energy Act regulatory process to resolve NEPA 7 issues. And indeed, it does. It relies on the Atomic 8 Energy Act regulatory process to resolve most of the 9 issues that would come up under NEPA, that have to do 10 with radiological impacts.
11 And you can see this in many places in the 12 license renewal GEIS. But I want to point you 13 especially to page 5-12 of the 1996 GEIS, which says, 14 the public risk due to nuclear power accidents has a 15 range of values.
16 The Staff believes that the current 17 regulatory practices ensure that the basic statutory 18 requirement, adequate protection of the public, is 19 met. And for this, the NRC cites the safety goal 20 policy.
21 Then it says, these risk estimates are 22 representative of the magnitude of risk associated 23 with current regulatory practices. So, this is all 24 the way it's supposed to work.
25 The problem here is that despite what the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
16 1 staff says about the ongoing regulatory practices 2 resolving the issue of flooding, that didn't happen 3 here.
4 As we describe in our hearing request, the 5 NRC did not follow the Atomic Energy Act-based 6 regulatory practices on which the GEIS relies. What 7 happened here is that the Staff did a safety 8 evaluation in 2011, which culminated a long back-and-9 forth between the Staff and Duke about the flooding 10 risk at Oconee.
11 It culminated in a safety evaluation which 12 said, we find the only way that Duke can provide 13 adequate protection of public health and safety, is to 14 take certain measures to protect the site against 15 flooding risk. And the risk was of a 191/2-foot flood.
16 That safety evaluation is still 17 outstanding. It's never been fulfilled by Duke. It's 18 never been repudiated by the Staff. It's there, 19 unresolved.
20 And as long as a safety evaluation that is 21 relied on in the GEIS remains unresolved, according to 22 the NRC's own regulatory practices it becomes an 23 environmental issue. And that is what the license 24 renewal GEIS specifically says -- safety issues can 25 become environmental issues.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
17 1 Here, we're saying if you've got a safety 2 issue that's unresolved, unaddressed, that becomes an 3 environmental issue and it has to be addressed.
4 It may be that Petitioners can't force the 5 NRC or Duke to do anything, but they're going to have 6 to talk about it in the Environmental Report and the 7 GEIS.
8 Now, Duke and the NRC try to rely on the 9 results of the NRC Staff's post-Fukushima review to 10 claim that the issues raised by the 2011 safety 11 evaluation have been resolved.
12 But for those issues to be resolved, the 13 NRC staff would have had to make a finding that 14 whatever measures Duke has now taken to respond to the 15 post-Fukushima review provide a reasonable assurance 16 of adequate protection to public health and safety.
17 And as we document extensively in both our 18 hearing request and our reply, absolutely none of the 19 NRC's post-Fukushima review documents use that 20 reasonable assurance, adequate protection, language.
21 You can't find it anywhere. The safety 22 evaluation is still sitting out there unresolved and 23 unfulfilled.
24 And as long as the license renewal GEIS 25 depends on the safety process for findings about the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
18 1 environmental impacts of reactor operation, that is an 2 impact of renewed operation of Oconee that absolutely 3 must be addressed.
4 Oh, I just want to mention that in the 5 2013 revised GEIS, the NRC made it clear that they 6 were not relying on their post-Fukushima review for 7 that revised GEIS. It was still underway. So, that 8 can't be asserted as something that falls within the 9 2013 revised GEIS.
10 The next issue is, why is this risk 11 significant that we presented? Two reasons. First, 12 because the NRC's own best estimate of the likelihood 13 of Jocassee Dam failure, 2.8 times ten to the minus 14 four, puts it well within the range of accident 15 probabilities that the NRC considers significant 16 enough to address through defense-in-depth measures 17 that are needed to provide a reasonable assurance of 18 adequate protection to public health and safety.
19 This is discussed in Mr. Mittman's report 20 and well-illustrated by the graphic on page 11 of his 21 report. I would encourage you to look at that graphic 22 because -- and this graphic was created by the NRC in 23 2008, when the NRC was in the midst of discussions 24 with Duke about the flood risks from the Jocassee Dam.
25 It shows that the NRC's best estimate of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
19 1 Jocassee Dam failure falls within the range of 2 accident initiators the NRC generally addresses 3 through its Atomic Energy Act-based regulatory 4 program. Thus, the potential for a Jocassee Dam 5 failure is significantly higher than the initiating 6 event likelihood of the accidents evaluated in the 7 license renewal GEIS.
8 For example, at page 5-17, the GEIS says 9 the total probability of a severe accident for a 10 typical reactor, including internal and external 11 events, is, quote unquote, small.
12 But an accident risk of 2.8 times ten to 13 the minus four, as Mr. Mittman calculated based on 14 NRC's own estimate, cannot be deemed small, because 15 the NRC considers it great enough to warrant 16 prevention of the accident through mandatory measures 17 that provide events in-depth.
18 And you'll see on that graphic on page 11, 19 the Jocassee best-estimate the NRC had for Jocassee 20 Dam failure, falls in the middle of that graph, 21 whereas severe accident mitigation measures are off to 22 the side, on the right-hand side, where the 23 probability numbers get a lot lower.
24 Second, as a matter of law, a safety or 25 environmental risk the NRC deems unreasonable or undue NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
20 1 under the Atomic Energy Act, has to be deemed 2 significant because the NRC's regulatory scheme 3 requires that the risk must be addressed in order for 4 the plant to even be allowed to operate.
5 If the regulatory system works, the only 6 thing the GEIS needs to worry about is a smaller 7 number of accidents, so-called severe accidents, whose 8 consequences may be severe, but they're so unlikely 9 their impact can be deemed insignificant.
10 We don't have that situation here. Here, 11 there is, as Mr. Mittman has demonstrated using NRC 12 and Duke documents, the probability of an accident is 13 20 times higher than predicted in the Environmental 14 Report.
15 It goes from the realm of -- although Duke 16 characterizes it as severe low-likelihood, it is 17 actually in the category of accidents that's generally 18 protected against by NRC safety regulations.
19 The implications are profound. As the 20 Commission stated in Pilgrim, COI 12-1, which is cited 21 by the NRC Staff at page 34, note 159, the mitigation 22 measures examined in the license renewal GEIS --
23 that's in parentheses -- are supplemental to those we 24 already require under our safety regulations, for 25 reasonable assurance of safe operation. That's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
21 1 page 57 of the decision.
2 If Duke hasn't taken measures NRC requires 3 for safe operation, that means there's a gap between 4 adequate protection and the supplemental measures 5 meant to be addressed by SAMAs.
6 This gap has to be discussed in the 7 Environmental Report and in whatever supplemental GEIS 8 the NRC prepared.
9 I think I've talked in my reply about why 10 the information we submitted is new. And I just want 11 to say, in relation to the statement in the 2013 GEIS 12 that the NRC updated its GEIS information about 13 external events -- that's at page 1-34 -- the NRC says 14 it did that before the Fukushima accident.
15 So, that would have had to have been 16 before 2011. But before 2011, the NRC was still in 17 the process of negotiating with Duke what Duke was 18 going to do to address the safety problem the NRC had 19 identified.
20 So, if the NRC was updating the GEIS back 21 then, it would have said, oh, the system's working.
22 Duke and the NRC are working on a way they're going to 23 provide adequate protection and address the safety 24 evaluation. We don't need to talk about this in the 25 EIS.
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22 1 That's how the system is supposed to work.
2 In terms of special and unique 3 circumstances, clearly they exists here. Because 4 (a) the NRC does not normally leave safety evaluations 5 unaddressed, and (b) the risk of a failure of the 6 Jocassee Dam leading to a core-melt accident is 7 substantially higher than any severe accident 8 evaluated in the license renewal GEIS.
9 In fact, the probability is estimated by 10 Mr. Mittman, based on documents provided by Duke and 11 NRC, falls within the realm of accidents that NRC 12 requires to be addressed under adequate protection 13 measures, not the marginal additional measures that 14 SAMAs constitute.
15 Okay, I don't have too much time left, so 16 I'm going to go to a few of the technical criticisms 17 by Duke of Mr. Mittman's analysis.
18 First, Duke says that Mr. Mittman should 19 have talked about what was in the PRA that is vaguely 20 referred to in the Environmental Report.
21 But as we said in our reply, Duke didn't 22 provide any citation to a PRA, or a way to get it.
23 So, Mr. Mittman reasonably used the information that 24 was presented in the Environmental Report.
25 In fact, that's what we were supposed to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
23 1 do, was to address the Environmental Report. We can't 2 expect to do a fishing expedition for information that 3 wasn't presented there.
4 And certainly, the only document that Duke 5 has come up with, the FOIA response that has a report 6 in it done for Duke, it's not docketing in ADAMS.
7 There's no ML number, there's no indication it was 8 submitted to the NRC. It doesn't appear to be part of 9 this Environmental Report record.
10 The second issue I want to talk about is 11 environmental impacts of outages. This factor doesn't 12 have to do with flooding. It's a separate factor.
13 How many minutes have I got left?
14 CHAIRMAN BOLLWERK: Five.
15 MS. CURRAN: I've got five minutes left.
16 Okay.
17 But it could contribute to accident risk.
18 And Mr. Mittman relies on the same thing that the 19 license renewal GEIS says about power outages. They 20 say the likelihood of a power outage, or the 21 environmental impacts from accidents at low power and 22 reactor shutdown conditions, are generally comparable 23 to those from accidents at full power. So, if they're 24 comparable, that means you multiply by two.
25 And in that case, under the license NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
24 1 renewal GEIS, the NRC thought that the likelihood of 2 severe accidents was really small. So, you multiply 3 that by two and you don't have anything. Who cares?
4 But we are in a different realm here, 5 where the likelihood of the accident, as demonstrated 6 by Mr. Mittman, is a lot higher.
7 Anything that can contribute to that 8 ultimate determination of core damage frequency is 9 relevant and shouldn't be excluded.
10 And finally, on the issue of overtopping 11 and seismic, once again Duke and the NRC Staff say, 12 well, Mr. Mittman didn't pay attention to other 13 information that was out there.
14 But it is correct that the Environmental 15 Report says nothing about seismic or overtopping. It 16 doesn't say anything.
17 And that was the subject matter of our 18 contention. It was required to be the subject matter 19 of our contention.
20 The NRC's post-Fukushima review may have 21 addressed seismic risk, but that doesn't mean it went 22 into the Environmental Report.
23 And with respect to the draft PRA that's 24 referenced by Duke in its response to our hearing 25 request, that document does say that overtopping of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
25 1 the Jocassee Dam was addressed.
2 But again, we don't know the providence of 3 that document. It appears to be a draft. It doesn't 4 appear to have been docketed by the NRC. We can't be 5 expected to evaluate documents that Duke doesn't 6 identify or provide access to.
7 So, in conclusion, it is clear that we 8 have satisfied the standards for both admissible 9 contentions and the issuance of a waiver in this 10 proceeding.
11 This is an extremely unusual situation, 12 where there is a fundamental safety evaluation that 13 was never satisfied, never repudiated, never altered.
14 It's just there.
15 And that kind of safety finding is what 16 the GEIS relies on for its environmental conclusions.
17 Plus, we have Mr. Mittman's technical demonstration 18 that, in fact, the potential for a serious accident 19 caused by failure of the Jocassee Dam is much higher 20 than estimated by Duke.
21 Thank you.
22 CHAIRMAN BOLLWERK: All right, thank you, 23 Ms. Curran. You're right at 20 minutes. So, 24 appreciate it.
25 All right, let's turn to Mr. Lighty then, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
26 1 for Duke.
2 MR. LIGHTY: Thank you, Your Honor. And 3 may it please the Board, Ryan Lighty, appearing for 4 the Applicant.
5 We very much appreciate the opportunity to 6 have this conversation today. But before proceeding 7 to the Board's questions, it would be worthwhile to 8 spend just a moment at the outset to summarize the 9 Petitioners' arguments.
10 Petitioners frame their contentions as 11 claiming that Duke's Environmental Report, or ER, did 12 not consider certain purportedly new and significant 13 information, or --
14 JUDGE TRIKOUROS: Mr. Lighty, I can't hear 15 you.
16 CHAIRMAN BOLLWERK: We seem to have lost 17 your audio. This is Judge Bollwerk.
18 JUDGE TRIKOUROS: I hear you. Can you 19 hear me?
20 CHAIRMAN BOLLWERK: Yes, Judge Trikouros, 21 we can hear you. We can't hear Mr. Lighty. That's 22 the problem.
23 JUDGE TRIKOUROS: Oh, okay.
24 MR. LIGHTY: All right, are you able to 25 hear me now?
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27 1 CHAIRMAN BOLLWERK: Yes.
2 MR. LIGHTY: Okay, thank you. All right, 3 well, thank you, Your Honor. And may it please the 4 Board, Ryan Lighty, appearing for the Applicant.
5 We very much appreciate the opportunity to 6 have this conversation today. Before proceeding to 7 the Board's questions, it would be worthwhile to spend 8 just a moment at the outset to summarize the 9 Petitioners' arguments.
10 Petitioners frame their contentions as 11 claiming that Duke's Environmental Report, or ER, did 12 not consider certain purportedly new and significant 13 information, or NSI.
14 But the Petition is not at all clear as to 15 what information, precisely, Petitioners are claiming 16 to be NSI.
17 But based on some further clarifications 18 in their reply, we think there are three overarching 19 themes. And I would like to briefly walk through each 20 of those three items.
21 The first theme is simply based on a plain 22 reading of the Petition. Petitioners offer two 23 bullets purporting to specify the information they 24 claim is new and significant.
25 The first bullet identifies, quote, Duke's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
28 1 own risk analyses, end quote. And on page 15 of their 2 reply, Petitioners clarified that this bullet is 3 intended to reference the 5.9(e) to the minus six 4 value from Duke's 1998 SAMA analysis. And the second 5 bullet mentions the NRC's 2011 safety evaluation.
6 But neither of those is new information.
7 The severe accidents analysis in the GEIS was issued 8 in 2013, more than two years after the 2011 safety 9 evaluation, and more than two decades after Duke's 10 original 1998 SAMA analysis.
11 So, based on a plain reading of the 12 Petition (audio interference) and the NSI. And as 13 Mr. Mittman's hand calculation of core damage 14 frequency, or CDF.
15 As a general matter, it is unclear how 16 this even relates to the proposed contentions.
17 Petitioners --
18 (Audio interference.)
19 COURT REPORTER: This is the court 20 reporter. I'm sorry to interrupt. I don't know if 21 others might have missed some words in that last bit.
22 CHAIRMAN BOLLWERK: If you went back about 23 30 seconds, I think you dropped out a couple of times, 24 Mr. Lighty.
25 MR. LIGHTY: Okay. Let me try this again.
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29 1 And if not, then perhaps we can take a break and try 2 to refresh the connection. Are you able to hear me 3 now?
4 CHAIRMAN BOLLWERK: Yes.
5 MR. LIGHTY: Okay. So, as I mentioned, I 6 wanted to walk through the three overarching themes we 7 see in the Petition about potential NSI that 8 Petitioners are raising.
9 And the first is based on a plain reading 10 of the Petition, where the Petitioners identify two 11 bullets that purport to specify the NSI.
12 The first identifies, quote, Duke's own 13 risk analyses, and page 15 of the reply, Petitioners 14 clarified that that was intended to reference the 15 5.9(e) to the minus six value from Duke's 1998 SAMA 16 analysis. And the second bullet mentions the NRC's 17 2011 safety evaluation.
18 But neither of those is new. The severe 19 accidents analysis in the GEIS was issued in 2013, 20 more than two years after the 2011 safety evaluation, 21 and more than two decades after Duke's original 1998 22 SAMA analysis. So, based on a plain reading of the 23 Petition, Petitioners have not identified any NSI.
24 The second theme is Mr. Mittman's hand 25 calculation of core damage frequency, or CDF. As a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
30 1 general matter, it is unclear how this even relates to 2 the proposed contentions.
3 Petitioners do not claim that the 4 calculation itself constitutes NSI. And even if they 5 did, that claim would not make sense because 6 Mr. Mittman's calculation came to light in the 7 Petition many months after the ER was submitted.
8 And the inference to that calculation are 9 from a 2010 memorandum and the 1992 inundation study.
10 So, neither of the inputs is new. And the calculation 11 does not identify any connection to either of the two 12 bullets that I mentioned earlier.
13 Again, it's not clear how this discussion 14 fits into the Petition. But in any event, it does not 15 identify any NSI.
16 Third, in a much broader sense, the 17 Petition seems to present a counterclaim that there is 18 an unresolved safety issue, and because it is 19 unresolved, the environmental impacts must be 20 considered under NEPA.
21 More specifically, Petitioners claim that 22 the 2011 safety evaluation, which was developed as 23 part of the NRC's 2010 corrective action letter, or 24 CAL process, imposed certain requirements on Duke that 25 remain unaddressed.
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31 1 To be clear, Petitioners' NEPA contentions 2 are inextricably linked to their assertion that there 3 is some unaddressed safety issue.
4 But as is clear from the public regulatory 5 record, that claim is demonstrably incorrect. There 6 is no open safety issue. And there no open corrective 7 actions. And I'd like to very briefly recap the 8 timeline of events that demonstrate that point.
9 The NRC issued the CAL to Duke on June 22, 10 2010, requiring Duke to analyze and address the 11 effects of an assumed hypothetical failure of the 12 Jocassee Dam.
13 Duke submitted its preliminary analysis 14 later in 2010, and the NRC issued an assessment in 15 January 2011, confirming that analysis satisfied the 16 CAL commitment.
17 But then, two months later, the Fukushima 18 earthquake happened. The NRC took immediate action, 19 and among other things, requested that all power 20 reactor licensees, including Duke, reevaluate the 21 flooding hazards at their sites using present day NRC 22 requirements and guidance.
23 Now, the NRC was well-aware that the 24 Oconee Cal remained open, and that the 2011 safety 25 evaluation had been issued. Thus, it issued a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
32 1 separate letter, dated September 20, 2012, stating 2 that the Agency intended to maintain the CAL active 3 until it could be, and I quote, superseded, end quote, 4 by regulatory action relating to Fukushima responses.
5 On August 8, 2014, Duke submitted a letter 6 to the NRC committing to take certain actions based on 7 the Fukushima reevaluation, rather than the 2011 8 safety evaluation.
9 Duke submitted its final Fukushima 10 reevaluation on March 6, 2015. On April 14, 2016 the 11 NRC issued a Final Staff Assessment, concluding that 12 Duke's Fukushima reevaluation, quote, is acceptable 13 for the purposes of meeting the terms of the June 22, 14 2010 CAL. End quote.
15 On April 29, 2016 Duke notified the NRC 16 that all required physical modifications at the plant 17 had been completed. And on May 19th of that year, the 18 NRC completed an inspection of those modifications.
19 Then, on June 16, 2016 the NRC determined 20 that Dukes Fukushima reevaluation, modifications, and 21 several years of NRC analyses, inspections, and 22 confirmations, quote, provide adequate assurance that 23 the required terms as directed by the June 22, 2010 24 CAL, have been satisfied. End quote.
25 Thus, the NRC declared that -- and I again NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
33 1 quote -- the June 22, 2010 confirmatory action letter 2 is now closed. End quote.
3 Duke and the NRC continued to perform 4 other actions and analyses related to the Fukushima 5 reevaluation, and on November 17, 2020 the NRC stated 6 in writing that all of those actions had been, quote, 7 completed. End quote.
8 Now, the terminology used in those 9 closeout letters is important. The June 22nd 10 confirmatory action letter is now closed. The post-11 Fukushima actions are completed.
12 The NRC very clearly considered flooding 13 hazard information as part of its current licensing 14 basis oversight, and it did so very carefully over 15 many years of analysis, evaluation, inspection, 16 confirmation, and it unequivocally declared the issue 17 closed and completed.
18 There can be no genuine dispute on this 19 issue, because the regulatory record is unambiguous.
20 To the extent the Petition relies on a 21 claim that this issue somehow remains open, it is 22 obviously wrong, and Petitioners' corresponding 23 arguments fall apart like a house of cards.
24 Now, as is clear from the Petition and 25 supporting documents, Petitioners appear to be using NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
34 1 a NEPA as a backdoor to revisit the NRC's regulation 2 and resolution of the Jocassee Dam safety issue.
3 Mr. Mittman is crystal clear on this point 4 when he states that, quote, NRC's regulation of the 5 Oconee reactors presents grave concerns. End quote.
6 There's also a very important statement on 7 page 6 of Petitioners' reply, in which they claim that 8 when, quote, current regulatory practices, end quote, 9 are not fulfilled, the NRC must address the issue in 10 the context of NEPA.
11 But Petitioners disagreement with the 12 regulatory process is clearly beyond the scope of this 13 SLR proceeding. In other words, to the extent 14 Petitioners are trying to claim that there should be 15 an open safety issue because they disagree with the 16 NRC's decision to close the CAL, and suggests that the 17 NRC instead should have imposed a backfit, as 18 Petitioners seem to suggest at pages 8 and 9 of the 19 reply, that's an entirely different argument. It's 20 also a CLB issue squarely beyond the scope of this 21 proceeding.
22 The bottom line is that Petitioners offer 23 no explanation as to how a resolved safety matter 24 somehow identifies an unaddressed NEPA issue. And to 25 be clear, the NRC has resolved the safety matter NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
35 1 raised by Petitioners, even if they disagree with that 2 outcome.
3 But this SLR proceeding is not the proper 4 forum for a challenge to that CLB safety issue.
5 In sum, Duke respectfully submits that 6 both the Waiver Petition and the hearing request 7 suffer from these fundamental flaws, and thus the 8 Board should deny both. And with that, I will be 9 happy to take any specific questions that the Board 10 may have after the Staff's presentation. Thank you.
11 CHAIRMAN BOLLWERK: Thank you, sir. Let's 12 turn then to the NRC Staff, please.
13 MS. WOOD: Thank you, Your Honor, and good 14 afternoon. As I mentioned earlier, my name is Mary 15 Frances Wood and I represent the NRC Staff in this 16 matter.
17 Before I begin with the NRC's opening, I 18 would like to briefly touch on a few issues that were 19 raised by the Petitioner.
20 First, there is not an adequate protection 21 issue at Oconee. If there were, the NRC would not 22 have allowed it to continue to operate the site.
23 Secondly, the Petitioners conflate safety 24 and environmental reviews. Notably, the ADA does not 25 undermine the NRC's duty to comply with the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
36 1 responsibility under NEPA.
2 Next, I would like to turn first to the 3 Petition for Waiver in this matter. The Petitioners 4 have not made a prima facie showing that supports 5 obtaining a waiver, and has not met any of the four 6 Millstone factors.
7 As is well-established, all four factors, 8 which are stringent by design, must be met. If a 9 presiding officer determines the Petitioner has not 10 made a prima facie showing, the presiding officer 11 cannot further consider the matter.
12 For the first factor, Petitioners must 13 show strict application of the rule it seeks to waive 14 would not serve the purpose for which it was adopted.
15 The crux of the Petitioners' argument here 16 is that by not granting the Petitioners' waiver to 17 challenge Category 1 finding, it would be barring the 18 consideration of new and significant information, in 19 contravention of NEPA.
20 However, the NRC is required to consider 21 new and significant information in its environmental 22 impact statement, according to NRC's regulation.
23 As a result, regardless of the outcome of 24 this proceeding, the NRC staff must consider new and 25 significant information in its environmental review.
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37 1 The Petitioners, therefore, have failed to 2 demonstrate that applying the rule that excludes 3 Category 1 issues from consideration in this 4 proceeding, would prohibit consideration of new and 5 significant information, and have not met the first 6 factor.
7 The Petitioners also appear to assert that 8 there is a deficiency in Duke's Environmental Report, 9 and offer an alternative input as to how the SAMA 10 analysis could be performed.
11 In essence, the Petitioners are arguing 12 that Duke must perform a new SAMA analysis as part of 13 its license renewal, to account for the purportedly 14 new and significant information that is being offered 15 by the Petitioners.
16 However, for plans that have already 17 conducted a SAMA analysis, it has the functional 18 equivalent of being a Category 1 issue, and the 19 Commission has excluded Category 1 issues from 20 adjudication, by rule.
21 In order to challenge this rule, 22 Petitioners must demonstrate not that there are other 23 ways of conducting a SAMA analysis, but rather that 24 the SAMA analysis and the application has a 25 potentially significant deficiency that could credibly NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
38 1 render the analysis unreasonable under the NEPA 2 standards.
3 Here, Petitioners have failed to do that, 4 and challenge the previous SAMA analysis by really 5 offering another input or methodology that could have 6 been used in the SAMA analysis.
7 Accordingly, Petitioners do not meet the 8 first Millstone factor. I note that on page 34 of the 9 NRC Staff answer, the reference to Contention 1 should 10 be Contentions 2 and 3.
11 Moving to the second factor, the 12 Petitioners must identify that special circumstances 13 exist but were not considered in the rulemaking 14 proceeding leading to the rule sought to be waived.
15 Petitioners' argument here pertains to the 16 current operating status of the facility.
17 Specifically, the external flood hazards permit 18 potential failure of the Jocassee Dam.
19 External flood hazards are appropriately 20 considered, and certainly have been considered, as 21 part of the ongoing oversight of Oconee's operations, 22 not as part of a license renewal proceeding.
23 More importantly, consideration of 24 protecting against a failure of the Jocassee Dam is 25 known. This can be seen, for example, through the NRC NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
39 1 Staff's extensive engagement on the Jocassee Dam since 2 at least 2010.
3 For example, in 2016 the NRC staff stated 4 in an assessment, that the licensee's 2015 submittal 5 concluded the potential for hydrologic, seismic, and 6 sunny-day failures of Jocassee Dam, plus the 7 licensee's submittal in 2010 also considered the 8 potential for sunny-day failure.
9 Accordingly, the Petitioners do not show 10 that the external flood hazard from a possible failure 11 of the Jocassee Dam is a special circumstance not 12 previously considered.
13 The Petitioners must also identify 14 circumstances unique to the facility, rather than a 15 common by class of facility, with the third Millstone 16 factor.
17 At bottom, the Petitioners' argument is 18 that Duke considered site-specific information unique 19 to Oconee in its SAMA analysis.
20 However, SAMA analysis requires, by its 21 nature, a site-specific analysis. Therefore, to the 22 extent that Petitioners are arguing that unique 23 circumstances exist because information specific to 24 Oconee was used in its SAMA analysis, this argument 25 could be lodged against any site that conducted a SAMA NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
40 1 analysis. Therefore, the Petitioners do not meet the 2 third Millstone factor.
3 Lastly, the Petitioners must demonstrate 4 that a waiver of the regulation is necessary to reach 5 a significant safety or environmental problem. The 6 Petitioners appear to challenge Oconee's compliance 7 with existing requirements, pointing specifically to 8 measures deemed necessary by the NRC related to the 9 impact of flooding from a potential failure of the 10 Jocassee Dam. These types of challenges are outside 11 the scope of license renewal.
12 Accordingly, the Petitioners have failed 13 to meet the fourth factor. Therefore, Petitioners 14 have not made a prima facie showing, and the Petition 15 for Waiver should be denied.
16 Alternatively, should the Board determine 17 that the Petitioners have made a prima facie showing, 18 the Petitioners' proposed Contingencies 2 and 3 do not 19 meet NRC's requirements for contention admissibility.
20 Per the Board's Order, the NRC Staff will not address 21 Contention 1 in this opening statement.
22 NRC's contention admissibility standards 23 are strict by design. And for contentions to be 24 admissible, Petitioners do bear the burden of meeting 25 all of the requirements.
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41 1 Here, the Petitioners have not provided 2 admissible contention, because they raise issues that 3 are outside the scope of subsequent license renewal 4 proceeding, insomuch that the issues pertain to the 5 current operating status of the facility, rather than 6 issues appropriate for consideration of license 7 renewal application.
8 They do not raise an issue to the findings 9 the NRC must make, and there are issues that do not 10 create a genuine dispute with the application.
11 Before I begin, we do address the 12 Petitioners' arguments jointly, and have proofed the 13 arguments accordingly, just given the overlap and 14 incorporation by reference of Contention 2 into 15 Contention 3.
16 First, I'd like to highlight just a few 17 key points regarding Petitioners' assertion of new and 18 significant information.
19 Notably, Petitioners claim that Duke's 20 risk analysis of a random sunny-day failure at 21 Jocassee Dam is wrong, and that Duke failed to 22 consider seismically-induced dam failure and dam 23 overtopping.
24 The NRC's regulations require that 25 environmental reports must contain an analysis of any NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
42 1 new and significant information regarding the 2 environmental impacts of license renewal, of which the 3 Applicant is aware.
4 The NRC Staff provides guidance in 5 Regulatory Guide 4.2, as to what constitutes new and 6 significant information.
7 Additionally, as I mentioned earlier, the 8 NRC Staff is required to consider new and significant 9 information, regardless of the outcome of the 10 proceeding, as part of its environmental review.
11 And most importantly, the public has the 12 opportunity to raise issues with the draft 13 supplemental environmental impact statement during the 14 public comment period, as part of the NRC's NEPA 15 process.
16 Accordingly, dismissing the contentions, 17 or not granting the waiver, does not preclude the 18 consideration of new and significant information.
19 The Commission has previously established 20 that for a petitioner to litigate, for example, a 21 contention asserting an inadequate SAMA analysis, the 22 petitioners must show that there is such a potentially 23 significant deficiency in the analysis, that it could 24 credibly render the SAMA analysis unreasonable under 25 the NEPA standards.
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43 1 Moreover, it is necessary to show that the 2 alternative information would have a significant 3 impact on the environmental analysis. Otherwise, as 4 the Commission has previously indicated, there will 5 always be ways to think of another input or 6 methodology that could be used in the SAMA modeling, 7 and that many different inputs and different 8 approaches may all be reasonable choices.
9 The new and significant information to 10 which Petitioners refer appears to be the Petitioners' 11 expert's calculation of an alternative CDF, or core 12 damage frequency.
13 The Petitioners state generally that its 14 failure to account for this information is profoundly 15 significant because a significant flooding event at 16 Jocassee would inevitably lead to a containment 17 failure and a core-melt accident.
18 In light of the Staff's engagement since 19 2010 with Oconee on its flood hazard analysis, which 20 specifically included consideration of Duke's overall 21 strategy to mitigate the risks associated with a 22 potential failure of the Jocassee Dam, the Petitioners 23 have not shown how the SAMA analysis of Oconee is 24 unreasonable. Rather, Petitioners simply desire for 25 more analysis to be done.
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44 1 The information provided by the 2 Petitioners does not present a seriously different 3 picture of the environmental impact of the proposed 4 action from what was previously envisioned.
5 As the information offered is not new and 6 significant, Petitioners have failed to raise an issue 7 that is material to this licensing action, or raise a 8 material dispute with the application.
9 Additionally, the Petitioners' arguments 10 attempt to erroneously conflate a safety concern with 11 an environmental impact under NEPA.
12 Specifically, Petitioners' assertion about 13 the licensing-supported failure to consider 14 seismically-induced dam failure and dam overtopping 15 concerns goes to current ongoing operations of Oconee.
16 Notably, the Petitioners' expert even 17 indicates that NRC's regulations for a license renewal 18 excluded from the scope of safety issues that may be 19 reviewed, because it does not relate to the aging of 20 Oconee's safety equipment.
21 However, the NRC must also review Duke's 22 SLR application under NEPA, which requires the NRC to 23 fully evaluate the environment impact of its proposed 24 actions, including the environmental impact of 25 recently foreseeable accidents. End quote.
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45 1 Petitioners are, in essence, asserting 2 that because their contentions purport to raise a 3 safety concern, that there would be, by that fact, a 4 new and significant information that would require the 5 NRC Staff to consider under its NEPA obligations.
6 While the Petitioners' argument are 7 couched in the context of an environmental concern, as 8 explained in the 2013 guide, flood hazards 9 considerations are considered safety-related, and fall 10 outside the scope of license renewal.
11 Specifically, a 2013 guide states that 12 flood protection issues are considered during site-13 specific safety reviews, and are addressed to the 14 reactor oversight process, another NRC safety program 15 separate from the license renewal process.
16 At bottom, as the Petitioners' arguments 17 go directly to a currently operating condition at 18 Oconee, which is addressed through NRC's ongoing 19 oversight of the site's operation, it necessarily 20 falls outside the scope of license renewal, is not 21 material to findings the NRC must make in its 22 licensing action, and therefore, the Petitioners fail 23 to raise an issue of genuine dispute with the 24 application.
25 Accordingly, this aspect of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
46 1 contentions must be denied.
2 Next, I'd like to turn to Petitioners' 3 assertion that Duke failed to address the safety and 4 environmental significance of the NRC's 2011 safety 5 evaluation in its Environmental Report.
6 In sum, the Petitioners assert that Duke 7 failed to implement certain measures in the NRC's 2011 8 safety evaluation, specifically as it relates to 9 protecting against a sunny-day failure of the Jocassee 10 Dam.
11 Again, issues related to current 12 operations of the plant are outside the scope of a 13 subsequent license renewal proceeding.
14 Here, the Petitioners' argument falls 15 squarely under the current operating status of the 16 plant, that these issues are appropriate addressed 17 under the Staff's ongoing regulatory oversight 18 activity.
19 The 2013 guide explicitly indicates that 20 issues related to flood protection are considered 21 during site-specific safety review. These are 22 separate from the license renewal process.
23 Accordingly, to the extent that 24 Petitioners are arguing that Duke is not meeting 25 requirements under its license, they raise issues NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
47 1 related to current operation of the plant.
2 These are outside the scope and are not 3 material to the finding that the NRC must make in a 4 subsequent license renewal proceeding, and 5 consequently do not show that a genuine dispute 6 exists.
7 Next, I'll address the Petitioners' 8 argument that the Environmental Report fails to 9 consider additional mitigative measures that 10 Petitioner expert identifies.
11 Petitioners argue that Duke failed to 12 consider three additional mitigative measures that 13 would lower the flood impact at Oconee.
14 However, Petitioners (audio interference) 15 to deficiencies in the application, not just 16 suggestions of ways an analysis could have been done 17 and details that could have been included.
18 Petitioners broadly state these three 19 mitigative measures are obviously to reduce flood 20 hazards from Oconee, but never explain the basis for 21 these assertions, or how they paint a different 22 picture from what was previously analyzed.
23 Furthermore, these negative measures do 24 not support Petitioners' environmental challenge, 25 since the NRC's review of flood hazards are evaluated NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
48 1 and addressed as safety issues, and thus on an ongoing 2 basis through NRC's oversight process.
3 Therefore, this -- contention 3 should be 4 rejected, because it is out of scope of this license 5 proceeding, because flood hazards are addressed in 6 NRC's ongoing oversight activity, and not material to 7 the findings NRC must make.
8 And so, Petitioners fail to demonstrate a 9 genuine dispute with the application.
10 Lastly, I would like to turn just quickly 11 to the Petitioners' reply, which includes new proposed 12 arguments that exceed the permissible scope of a 13 reply.
14 A reply may not be used as a vehicle to 15 introduce new argument to support, to expand the scope 16 of arguments set forth in the original petition, or to 17 cure an otherwise deficient petition.
18 Contrary to Commission practice and 19 regulation, Petitioners reply contains new arguments 20 that impermissibly challenge the adequacy of the NRC 21 Staff's 2018 safety assessment related to the focused 22 flood evaluation for Oconee.
23 Petitioners newly argue that the NRC's 24 2018 Staff assessment's conclusion related to Duke's 25 flood-focused evaluation for Oconee is invalid because NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
49 1 the Staff's use of an analytical input in their 2018 2 Staff assessment is purportedly erroneous.
3 However, Petitioners impermissibly attack 4 the adequacy of the NRC's safety assessment. The 5 adequacy of the Staff's safety review is not an 6 appropriate issue for contention admissibility, as it 7 does not meet the requirement that the contention must 8 demonstrate a material issue with the application.
9 Furthermore, Petitioners newly argue that 10 Duke violated a NEPA requirement for documentation and 11 transparency by failing to document or even identify 12 a purported PRA update -- a probabilistic risk 13 assessment update.
14 Assuming Petitioners are referring to a 15 deficiency in Duke's Environmental Report, insomuch as 16 it was devoid of any quantitative information or 17 reference number for an updated PRA, this constitutes 18 a new argument and it's outside the scope of a reply 19 brief.
20 Accordingly, for the aforementioned 21 reasons, the Petitioners' waiver request should be 22 denied and the proposed contentions be found 23 inadmissible. Thank you for your time.
24 CHAIRMAN BOLLWERK: All right, thank you 25 very much. Ms. Curran, we're just about at 2 o'clock.
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50 1 You have about ten minutes.
2 MS. CURRAN: Judge Bollwerk, could I ask 3 for a ten-minute break before I go? I want to go over 4 the arguments and figure out what I'm going to say, 5 and I also want to take a bathroom break.
6 CHAIRMAN BOLLWERK: All right, we'll go 7 ahead and do that. Just so know, however, once you're 8 done with your reply, we'll go right into questions 9 then.
10 MS. CURRAN: Fine. Thank you.
11 CHAIRMAN BOLLWERK: So, we'll come back, 12 let's say at 2:15.
13 MS. CURRAN: Great. Thank you 14 (Whereupon, the above-entitled matter went 15 off the record at 1:59 p.m. and resumed at 2:15 p.m.)
16 CHAIRMAN BOLLWERK: It's about 2:15, and 17 we're back from our break. And we -- the next order 18 of business is to hear Ms. Curran's rebuttal.
19 MS. CURRAN: Thank you very much. I want 20 to respond to a couple of points made by Mr. Lighty 21 and Ms. Woods.
22 First, Mr. Lighty said that the 2010 CAL 23 was resolved and closed, and closed out by the post-24 Fukushima review. But it seems telling that neither 25 Mr. Lighty nor Ms. Woods takes the opportunity to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
51 1 identify any language in any NRC post-Fukushima review 2 document that says, we now find that the measures that 3 have been taken in response to the flood review we 4 requested after the Fukushima accident -- that those 5 measures provide a reasonable assurance of adequate 6 protection of public health and safety.
7 It's not there. It's not in what Counsel 8 said. It's not in any document. And the NRC in the 9 license renewal GEIS makes a point of saying we're not 10 relying on the post-Fukushima review. It wasn't 11 finished at that point. The only thing that's not 12 related to NEPA that they say they rely on is the 13 Atomic Energy Act-based safety reviews.
14 And, of course, safety evaluations are 15 critical documents in those safety reviews. That is 16 where, as we see from NUREG-1409, a document cited by 17 Duke -- this is where the NRC says what is required to 18 achieve adequate protection.
19 And once the NRC technical staff says 20 that, when that finding is made, something has to be 21 done to either fulfill it or repudiate it. Didn't 22 happen here. And the Fukushima review is irrelevant.
23 The next point I want to make is Ms. Woods 24 said that we're just -- all we're doing is providing 25 an alternative analysis. Just, you know, you could do NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
52 1 the SAMA analysis this way. You could do it that way.
2 It's all kind of the same. But that's not true. That 3 is not a correct characterization of our case.
4 And the standard which is presented in the 5 Pilgrim case is we needed to show a deficiency that 6 credibly could render the SAMA analysis unreasonable 7 under NEPA standards. If the potential for a core-8 melt accident increases significantly, that changes 9 what the SAMA analysis is going to look like because 10 all of a sudden, SAMA's measures that were previously 11 deemed not cost effective are going to start to look 12 cost effective because the risks that they're 13 offsetting and the costs that they're offsetting are 14 bigger.
15 This is -- we have met that standard.
16 This is not just, oh, there's another way to do this.
17 And we did that -- we -- we did that with a --
18 qualitatively, with a discussion of the 2011 safety 19 evaluation, and we did it quantitatively with the 20 estimates that Mr. Mittman provided.
21 And finally, Mr. Lighty said that the 22 information that we rely on, which included a 2010 23 study, the generic dam study, and other documents --
24 that that information was not new because it didn't 25 postdate the 2013 GEIS.
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53 1 And I -- I guess a couple points. The 2 most important thing that we needed to do was show the 3 information was not considered in the license renewal 4 GEIS, and the fact that it -- it might have come 5 before that is not really relevant.
6 The NEPA requires the NRC to assess 7 environmental impacts, and it's not a trick process 8 where if something was overlooked in 2013 and you 9 realized it was overlooked later on, well, you've 10 waived your chance to have it addressed.
11 The point is to address what are 12 particularly significant impacts. But, more 13 importantly, the NRC said in the 2013 GEIS that they 14 took another look at external events. They did that 15 before the March 2011 Fukushima accident.
16 If they had looked at Oconee -- and maybe 17 they did -- they would have seen that the NRC and Duke 18 were engaged in conversations and correspondence about 19 a potential -- a significant safety issue at Oconee, 20 and they would have seen that in a safety evaluation, 21 the NRC said, Duke, you must do X measures. You must 22 take X measures in order to provide an adequate 23 protection of public health and safety.
24 And there was no indication in the 2011 25 safety evaluation that Duke was refusing to take these NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
54 1 measures. The safety evaluation talks about a 2 schedule that they have that Duke's going to do it.
3 So the NRC would have looked at that and said, well, 4 our safety processes are working; this is not a 5 significant environmental issue for us because we can 6 have confidence that the safety process works here.
7 And, of course, it was only after Duke 8 responded to the post-Fukushima order, the 50.54(f) 9 order, that it started to become clear that Duke 10 wasn't going to fulfill the terms of the 2011 safety 11 evaluation. If the NRC had taken a look at that 12 situation, they might have had a very different view 13 of external events.
14 I think I will stop there.
15 CHAIRMAN BOLLWERK: All right. Thank you.
16 Let's go ahead, then, and move to Board 17 questions.
18 And, Ms. Wood, if you could, maybe you can 19 move just a hair closer to the microphone when you're 20 answering/responding. We want to make sure that we 21 hear you clearly.
22 MS. WOODS: Yes, Your Honor. Will do.
23 CHAIRMAN BOLLWERK: Thank you. So just, 24 Ms. Woods, let's start with the last point that Ms.
25 Curran made. How does the staff respond to that? I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
55 1 mean, there seems to be this question about what the 2 GEIS did and didn't consider, at least in terms of 3 what's been going on with Oconee.
4 MS. WOODS: Of course, Your Honor. So, as 5 it relates to what the NRC staff considers for the 6 GEIS, it is a living and breathing document.
7 Basically, what the staff does is that it takes 8 lessons learned and other information that it has 9 acquired through its ongoing reviews and subsequent 10 license renewals and different license renewal 11 proceedings and consider those as part of its analysis 12 as to the current findings that are in the GEIS.
13 As it relates specifically to Oconee, for 14 the GEIS update, the previous GEIS before the 2013 one 15 was done in 1996. So the information that would be 16 incorporated into the 2013 GEIS was, in practice, 17 those lessons learned that were taken from 1996 up 18 until the issuance of the 2013 GEIS.
19 And, to that extent, the nature of the 20 information that the staff would have considered are 21 those pieces of information that would have risen to 22 such a level that it would have potentially challenged 23 the NRC staff's current findings as it relates to the 24 guidance.
25 CHAIRMAN BOLLWERK: So you're saying that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
56 1 by implication, what was going on at Oconee was taken 2 into account by the staff in the GEIS?
3 MS. WOODS: In terms of the -- the NRC 4 staff's review does not look at every single piece of 5 information for every single site for every issue.
6 So, as I stated, the general nature of the review is 7 to take those pieces of information that were 8 significant -- rose to the level of significance 9 enough to potentially challenge the staff's previous 10 findings as it relates to those that are identified in 11 the guide.
12 CHAIRMAN BOLLWERK: All right.
13 Mr. Lighty, anything you want to say on 14 the subject?
15 MR. LIGHTY: Yes, Your Honor, just very 16 briefly. You know, I -- I fully agree with Ms. Curran 17 that in order to raise an NSI contention, you have to 18 show that there is some information that was not 19 considered in the GEIS.
20 But the petition did not engage with the 21 GEIS. The petition has omitted a discussion of the 22 baseline analysis in the GEIS to explain why it 23 doesn't cover the issue that they are trying to raise.
24 This is very similar to the North Anna proceeding, 25 where the Petitioners there purported to raise an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
57 1 issue related to a specific seismic event without 2 explaining why the GEIS generic analysis wasn't broad 3 enough to cover that specific event.
4 I believe a similar contention was raised 5 in the Diablo Canyon proceeding cited in our brief to 6 the same issue. So the issue here is Petitioners 7 haven't engaged with the GEIS and explained why the --
8 for this particular event that they're discussing.
9 And to address what Ms. Curran said about 10 the timing of the reports and whether they were 11 considered in the GEIS based on what year they were 12 issued, Ms. Curran argued that you haven't waived the 13 chance to address information that predates the 14 issuance of the GEIS.
15 But that is exactly what you have done 16 when the NRC made a decision to codify those findings, 17 offer a notice and comment making, provide the public 18 with an opportunity to comment on those findings, 19 before codifying them into law.
20 The NRC by design precludes challenges 21 after the fact as a matter of efficiency, as a matter 22 of resolving issues generically. And that's exactly 23 what's happened here. The opportunity to challenge 24 those pre-GEIS documents has long since expired.
25 CHAIRMAN BOLLWERK: All right. Just for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
58 1 the information of those that are listening, when we 2 talk about the GEIS, we're talking about a generic 3 finding, correct? But then there will be -- in this 4 case, as there has been previously for your initial 5 renewal, there will be a supplement to the GEIS that 6 covers Oconee specifically based on your environmental 7 report. That's correct, isn't it?
8 MR. LIGHTY: Yes. Yes, that's correct.
9 The GEIS will be coupled with any new and significant 10 information in the environmental report, any raised by 11 the public in comments through the public comment 12 opportunity, any new and significant information 13 identified by the staff, and put in their draft and 14 final EIS.
15 CHAIRMAN BOLLWERK: All right. Ms.
16 Curran, what would you like to say on the subject?
17 I think you're muted.
18 MS. CURRAN: Yeah. Thank you. First of 19 all, our obligation in this hearing request was to 20 address the environmental report. And the 21 environmental report compares itself, compares its 22 findings, to the license renewal GEIS and says we're 23 looking to see if there's any new information that 24 would change the findings in the license renewal GEIS.
25 So we critiqued the environmental report's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
59 1 discussion of whether there was new and significant 2 information that would change the findings of the 3 license renewal GEIS. In our opinion, we did exactly 4 what the regulations required.
5 It's also very clear that the accident 6 probabilities that we're talking about here are way --
7 much higher than what the GEIS considers for severe 8 accidents. There's no question that the accident 9 probabilities estimated in Mr. Mittman's report are 10 far beyond what the license renewal GEIS expected for 11 severe accidents.
12 So I think we have more than satisfied the 13 standards. And then, as to this idea that the rule is 14 designed to unequivocally bar anyone from raising 15 information that may have come up before the 2013 GEIS 16 revision, that's what the purpose of the waiver 17 provisions are because NEPA -- the NRC has a lot of 18 discretion in rulemaking, and it can decide there's 19 common issues that can be evaluated in a generic EIS.
20 But it can't cast that in concrete, 21 because NEPA requires that for every single licensing 22 action, the Government has to satisfy itself that it 23 looked at the potential impact. And if someone can 24 show that there's an impact that wasn't considered in 25 a previous EIS that's being relied upon, then the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
60 1 Agency has to look at it.
2 That is a statutory requirement that the 3 NRC can't avoid by promulgating a rule.
4 CHAIRMAN BOLLWERK: All right. Thank you.
5 (Simultaneous speaking.)
6 CHAIRMAN BOLLWERK: Oh, go ahead.
7 JUDGE ARNOLD: I have a closely related 8 question. This is Judge Arnold. Now, if you look at 9 the current GEIS, it says that the generic 10 environmental impacts of severe accidents were 11 assessed based upon analysis performed at 28 nuclear 12 power plants as listed in Table 5.1 of the 1996 GEIS.
13 Now, I noticed that Oconee is not on that 14 list. Let me ask staff. Do you know if any of those 15 28 nuclear power plants that were used for that 16 assessment were downstream of a dam?
17 MS. WOODS: Sorry, Your Honor. I was 18 coming off mute. It's possible. I would like to 19 consult with the NRC staff to be able to get you a 20 correct answer in terms of the status.
21 JUDGE ARNOLD: Please do.
22 (Pause.)
23 MS. WOODS: Thank you, Judge Arnold. In 24 response to your question, the answer is that no, none 25 of the sites were specifically downstream from a dam, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
61 1 but they were taken as a representative sample.
2 JUDGE ARNOLD: But there was nothing that 3 represented the situation that Oconee is in, correct?
4 I mean if none of them were downstream of a dam.
5 MS. WOODS: To the extent that the 28 6 plants were not downstream from a dam, that is 7 correct.
8 JUDGE ARNOLD: Okay. Thank you. That's 9 all I had on that.
10 MS. WOODS: Thank you, Judge Arnold.
11 JUDGE ARNOLD: All right. Since Judge 12 Arnold sort of introduced a new thought into this, let 13 me turn to Mr. Lighty briefly and see if he has any 14 response to that point.
15 MR. LIGHTY: Thank you, Your Honor. Just 16 very briefly, I also did not know the answer to that 17 question off the top of my head. I certainly would 18 have researched it had Petitioners raised it in the 19 petition.
20 But, again, I think that that reinforces 21 the lack of engagement with the GEIS analysis in the 22 petition. And, in fact, Ms. Curran's statement just 23 a moment ago that the accident probabilities that they 24 are calculating using bounding and worse-case inputs 25 are much higher than what's found in the GEIS, I think NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
62 1 that may be the first engagement with the GEIS on that 2 topic that we've heard so far in this proceeding. It 3 certainly wasn't presented in the petition.
4 JUDGE ARNOLD: Let me just quote from the 5 petition, page 21, paragraph 3. No GEIS addresses the 6 environmental impacts of operating a reactor in the 7 shadow of a large dam.
8 And that was part of their explanation of 9 circumstances that were not previously considered 10 unique to Oconee. It was brought up.
11 MR. LIGHTY: Yes, Your Honor, that is a 12 statement that is in the petition. I don't think it 13 goes to the probabilities explicitly that I was 14 speaking of in terms of Ms. Curran's prior statement.
15 But, again, I want to point back to the 16 GEIS conclusion on this issue. It doesn't get as 17 granular in its conclusion about specific external 18 events and the conclusions that result from those 19 specific internal -- external events.
20 In fact, the GEIS conclusion is that 21 applicants do not need to analyze external events 22 because the internal events analysis is sufficient to 23 allow the NRC to draw its generic conclusion.
24 JUDGE ARNOLD: Okay. Thank you, Judge 25 Bollwerk, for allowing me to step in.
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63 1 CHAIRMAN BOLLWERK: Oh, absolutely. Thank 2 you. I -- the subject matter was raised, and I 3 appreciate you asking your question.
4 Let me just see if Ms. Curran has anything 5 to say on this point, given what Judge Arnold has 6 raised.
7 (Pause.)
8 CHAIRMAN BOLLWERK: I believe she's 9 consulting with the individuals that are there to 10 assist her. Is that correct?
11 MS. CURRAN: To our understanding, there's 12 no power plant that is located as close to a large dam 13 as Oconee is. So it is an usual situation.
14 CHAIRMAN BOLLWERK: All right. Anything 15 further?
16 MS. CURRAN: No.
17 CHAIRMAN BOLLWERK: All right. Let me go 18 back to Ms. Wood, then, just to sort of close this 19 out, I think.
20 Anything further you want to say on the 21 subject, given what you've heard from Mr. Lighty and 22 Ms. Curran?
23 MS. WOODS: Thank you, Your Honor, for the 24 opportunity. The only thing I would like to point out 25 is that as part of the GEIS process, we do issue the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
64 1 supplemental environment statement that is specific to 2 the individual sites. And I would like to point out 3 that in the original environmental impact statement 4 for Oconee, they did evaluate the dam.
5 Thank you, Your Honor.
6 CHAIRMAN BOLLWERK: I thought you were 7 referring to the original licensing of the plant.
8 MS. WOODS: Let me consult. I believe 9 it's for the initial license renewal.
10 CHAIRMAN BOLLWERK: The initial license --
11 okay. I'm sorry.
12 (Simultaneous speaking.)
13 MS. WOODS: -- initial license renewal of 14 the site.
15 CHAIRMAN BOLLWERK: Right.
16 MS. WOODS: Thank you, Your Honor.
17 CHAIRMAN BOLLWERK: All right. Thank you.
18 Let me ask one other question of you, and then I think 19 we'll turn to Judge Trikouros because I think he has 20 some things he'd like to talk with the participants 21 about.
22 So let me, just by way of background, 23 mention a couple things. I think we're going to be 24 talking today about the January 28th, 2011, staff 25 document that's ADAMS Number ML110280153, probably the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
65 1 April 14th, 2016, staff document, which is ML153 --
2 sorry, 15352A207, and probably the June 18th, 2018, 3 staff document, which is ML18141A755. Those are all 4 publicly available documents.
5 As a -- probably a legal and a logical 6 matter, things that have different titles are 7 probably, arguably, different kinds of documents. And 8 if they use different wording, then there's probably 9 some significance to that as well.
10 And, sort of going to Ms. Curran's point, 11 I mean, the cover letter for the January 2011 document 12 -- the cover letter talks about it as a staff 13 assessment, but then the report's entitled a safety 14 evaluation, as opposed to the 2016 and 2018 documents, 15 where everything's called a staff assessment, both the 16 cover letters and the reports themselves.
17 What is the significance of the term 18 safety evaluation that was attached to the 2011 19 report?
20 MS. WOODS: Thank you for that question, 21 Your Honor. Regarding the distinction between staff 22 assessment and staff evaluation, while they do carry 23 different titles, the technical rigor associated with 24 the evaluation is equivalent as it relates to the 25 safety evaluation. These typically provide the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
66 1 technical safety and legal basis for decisions related 2 to a -- like a licensing action or a license amendment 3 request.
4 But, importantly, the NRC staff safety 5 evaluations are not part of the licensing basis. But 6 at the heart of the matter, as it relates to the 7 actual technical rigor that would go into the staff 8 assessment and the staff safety evaluation, those are 9 comparable.
10 CHAIRMAN BOLLWERK: Again, as Ms. Curran 11 has pointed out, certainly, if you look at page 2 of 12 the April 2011 report, which is page 13 of the company 13 safety evaluation, the staff states that the 14 unmitigated Case 2 dam breach parameters that were 15 used in the flooding models provided by Duke for the 16 Oconee site demonstrated the Licensee has included 17 conservatisms of the parameters utilized in the dam 18 breach scenario.
19 These conservatisms provide the staff with 20 additional assurance that the above Case 2 scenario 21 will bound the inundation of Oconee, therefore 22 providing reasonable assurance for the overall 23 flooding scenario of the site. This new flooding 24 scenario is based on the random sunny-day failure of 25 the Jocassee Dam. This Case 2 scenario will be the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
67 1 new flooding basis for the site.
2 So there we have some language that talks 3 about reasonable assurance and also basis, which sort 4 of gets to a licensing basis, potentially, of the 5 facility. But you don't really see that type of 6 language used in either the 2018 or the 2016 reports.
7 And I should mention also that in the 2015 8 or the -- I'm sorry, the 2016 report includes a sort 9 of comparison of what happened in 2010 and also 2015 10 relative to the Duke submissions that were the basis 11 for the reports, and makes the point again that at 12 least in 2010, there was a finding of reasonable 13 assurance.
14 I'm sort of -- it says, provided a 15 reasonable assurance that flood inundation levels at 16 the site would not exceed water surface elevations 17 predicted by the Licensee. That's at page 2 of the 18 addendum to the April 2016 report.
19 So there does seem to be this sort of use 20 of the term, reasonable assurance, in 2010, but you 21 don't see it in 2011. But you don't see that again in 22 2016 and 2018. What's the significance of that?
23 MS. WOODS: Your Honor, may I have just a 24 minute to consult with the staff?
25 CHAIRMAN BOLLWERK: Surely.
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68 1 MS. WOODS: Thank you, Your Honor.
2 (Pause.)
3 MS. WOODS: Thank you for your patience, 4 Your Honor.
5 CHAIRMAN BOLLWERK: Surely. Not a 6 problem.
7 MS. WOODS: In regards to the 2011 --
8 safety evaluation here, that is in response to a 9 confirmatory action letter. And if you look at the 10 2016 staff assessment and the 2018 assessment, those 11 are responses to 50.54(f) letters, which are a request 12 for information. So they're responding to two 13 different types of actions.
14 CHAIRMAN BOLLWERK: So your response, 15 then, is the fact that the 2011 one dealt -- that was 16 dealing with a CAL, and the 2016 and 2018 ones were 17 basically dealing with RAIs -- that's the difference 18 in the language, then, in terms of use of reasonable 19 assurance?
20 MS. WOODS: That is correct, Your Honor.
21 CHAIRMAN BOLLWERK: Okay.
22 Mr. Lighty, anything you want to say on 23 that subject?
24 You're muted, I think, or you're fading in 25 and out, one of the two.
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69 1 MR. LIGHTY: All right. Yes. Just very 2 briefly, Your Honor. So we don't see any support, any 3 documents cited in the petition that support a claim 4 that there is some meaningful regulatory difference 5 between the different ways that the assessments were 6 captioned.
7 And to take this back a step further to 8 reasonable assurance, when a 54(f) letter is issued, 9 the purpose of that is to allow the Commission to 10 decide whether it is going to revoke, suspend, modify 11 a license. In other words, the Commission may impose 12 a backfit if it determines that there is a reasonable 13 assurance issue.
14 Neither the end results of the CAL process 15 or the Fukushima process resulted in a backfit. It 16 seems that the Petitioners are claiming they want a 17 backfit, that there should have been a backfit, that 18 the CAL should not have been closed out because they 19 would have preferred a reasonable assurance finding be 20 associated with the safety evaluation.
21 The staff did not undertake the backfit.
22 And so, you know, to the extent Petitioners are 23 suggesting that merely the appearance of the words 24 reasonable assurance in a safety evaluation imposes 25 some legal obligation, that's -- that's contrary.
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70 1 The NRC needs to proactively initiate a 2 backfit in order to change the design basis of the 3 plant to make something a reasonable assurance issue.
4 That didn't happen. And the fact that these words 5 appear in one document certainly does not impose a 6 requirement on the Licensee.
7 CHAIRMAN BOLLWERK: All right. Thank you.
8 Ms. Curran, anything you want to say on 9 this subject?
10 MS. CURRAN: Yes. Thank you. Duke cited 11 the backfit guidance. It's not finalized, but it 12 certainly has reached a very high level of the 13 Commission, NUREG-1409, which I think is a revision to 14 something that is in place earlier that discusses the 15 role and the nature of safety evaluations.
16 And we discussed this in our reply, that 17 there are protocols and procedures for safety 18 evaluations. Safety evaluations have meaning under 19 the Atomic Energy Act. They are intended to set forth 20 the basis for NRC's adequate protection findings. And 21 it may be that a safety evaluation leads to a backfit.
22 And there certainly was a draft fact and analysis in 23 the case of Oconee.
24 But whether or not it gets to that, once 25 the staff makes that determination -- and this is a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
71 1 determination that the plant shouldn't operate unless 2 these minimal conditions are met. Once the staff 3 makes that determination under the Atomic Energy Act 4 and NRC implementing regulations, it can't be 5 discarded. It can't be swept under the rug, which is 6 what seems to be attempted here.
7 It is an outstanding safety determination 8 as to what is required in order to satisfy the Atomic 9 Energy Act and NRC safety regulations. And there is 10 no document that anyone's pointed out that says what 11 a staff assessment is supposed to do, and it certainly 12 -- we don't see any staff assessment in this record 13 that is used to address reasonable assurance issues.
14 That role is played by safety evaluations.
15 That's a higher-level document in terms of showing or 16 questioning Atomic Energy Act compliance. It's a 17 significant document. Once a safety evaluation is 18 prepared and issued, there's even protocols for if --
19 if something's going to be done with it, what happens 20 next? It just can't be left hanging, which is what 21 happened here.
22 And Mr. Lighty says what we really want is 23 a backfit, and we're trying to use NEPA as a back door 24 to get a backfit. Now, the Petitioners know very well 25 from long years of experience that NEPA doesn't have NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
72 1 substantive requirements, at least as the NRC 2 interprets it. NEPA is about disclosure and 3 evaluation of environmental impacts.
4 And of course Petitioners would like to 5 get a backfit. But if they can't get the backfit, 6 they could at least get an environmental impact 7 statement and an environmental report that identifies 8 this as an outstanding environmental and safety issue.
9 And safety issues are environmental issues.
10 It's the human environment that NEPA was 11 designed to protect. We are entitled to a discussion 12 of what are the environmental impacts of Duke's 13 failure to satisfy those conditions that were set out 14 in the 2011 safety evaluation, because the license 15 renewal GEIS is assuming that if there was a safety 16 evaluation, it was dealt with appropriately under 17 NRC's practices. And that didn't happen here.
18 CHAIRMAN BOLLWERK: All right. Thank you.
19 MS. CURRAN: Thank you.
20 CHAIRMAN BOLLWERK: Ms. Wood, I started 21 with you. Anything further you want to say on this 22 subject?
23 MS. WOODS: Yes, Your Honor. To clarify, 24 there is no adequate protection issue here. As the 25 NRC has clearly stated before, if there were an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
73 1 adequate protection issue, the NRC would not allow 2 Duke to continue operating the site.
3 And to the extent the Petitioners are 4 asserting that a safety evaluation is somehow weaker 5 in its technical rigor than a staff assessment, the 6 two documents, as we just discussed, really serve two 7 different purposes.
8 Here, you know, the safety assessment 9 really was going towards responding to a 50.54(f) 10 letter, and the other one was responding to a CAL.
11 And, to note, the safety evaluations tend to go to, 12 like, a license amendment request.
13 And so -- but the actual underlying 14 technical rigor of them is the same. And, again, just 15 to reiterate, there are no adequate protection issues 16 here. And to the extent the Petitioners are asserting 17 that Duke is not complying with a current condition of 18 its license, the purpose of the proceeding here is a 19 subsequent license renewal proceeding that are limited 20 to the scope of the aging management related 21 structures, systems and components as identified in 22 the regulations.
23 So the oversight of those current 24 conditions would fall outside the scope as covered 25 under the NRC's current regulatory oversight of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
74 1 Oconee.
2 Thank you, Your Honor.
3 CHAIRMAN BOLLWERK: So, just to clarify --
4 so you seem to be saying that -- you appear to be 5 agreeing with Mr. Lighty that because of the 6 difference in the documents that were being evaluated 7 or assessed or the situation term for the CAL versus 8 the RAI, that to call, for instance, the 2011 report 9 a staff assessment would have been incorrect; it had 10 to be called a safety evaluation, and vice versa? For 11 the 50.54 letter, it had to be called a staff 12 assessment; it could not have been called a safety 13 evaluation?
14 MS. WOODS: I'm sorry. If you could 15 clarify your question, Your Honor.
16 CHAIRMAN BOLLWERK: Sure. So, as I 17 understood it, Mr. Lighty's response was, well, this 18 was a CAL response, and therefore -- and I think I 19 heard the same thing from you -- it was called a 20 safety evaluation. It couldn't have been called a 21 staff assessment, then. It had to be called a safety 22 evaluation because of the nature of the document that 23 it was responding to -- or it was involved with may be 24 a better word.
25 MS. WOODS: They are different. But if I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
75 1 understand you, there needs -- in order to make a 2 change, there would be different mechanisms that would 3 be needed to make a change, depending if it was a 4 safety evaluation or a staff assessment in terms of 5 practice.
6 CHAIRMAN BOLLWERK: Right. So -- well, 7 let me flip the question, then. So a 50.54 RAI -- a 8 staff evaluation related to that would not be called 9 a safety evaluation. It would simply be called an 10 assessment. That would be inappropriate labeling if 11 you called it a safety evaluation. Or am I 12 misinterpreting what you're saying?
13 MS. WOODS: In terms of --
14 (Simultaneous speaking.)
15 CHAIRMAN BOLLWERK: Or does it make any 16 difference? Maybe it doesn't. That's what I'm trying 17 to find out.
18 MS. WOODS: Well, at the bottom, it really 19 boils down to the question of the technical rigor that 20 goes into the evaluation of the documents. And from 21 the NRC staff's perspective, the technical rigor 22 associated with a staff assessment and a safety 23 evaluation are the same.
24 The only distinction is that they serve 25 different purposes. The safety evaluation really just NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
76 1 goes more towards licensing actions.
2 CHAIRMAN BOLLWERK: All right. Thank you.
3 Let's turn to Judge Trikouros because I 4 know he has a number of questions. I may have some 5 additional ones, and maybe -- I'm sure Judge Arnold 6 does as well. But let's let Judge Trikouros ask his 7 questions.
8 MS. CURRAN: Judge Bollwerk? Could I --
9 CHAIRMAN BOLLWERK: Yes?
10 MS. CURRAN: I'm sorry, but I would like 11 to interject --
12 CHAIRMAN BOLLWERK: All right.
13 MS. CURRAN: -- a comment or two before 14 you move on.
15 CHAIRMAN BOLLWERK: All right.
16 MS. CURRAN: I want to reiterate there's 17 no guidance or no document that has been pointed to us 18 as to what is the role and meaning of a staff 19 assessment. So when you were asking questions, does 20 a staff assessment go with this document or that 21 document, we can't find any guidance for how it's 22 supposed to be used, although there certainly is 23 guidance in NUREG-1409 for how a safety evaluation is 24 to be used.
25 Ms. Wood said a couple of times that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
77 1 there's no adequate protection issue here, or the 2 plant would be shut down. And I think she's mixing up 3 enforcement with adequate protection. The NRC makes 4 decisions certainly on a very fast basis as to whether 5 to let a plant keep operating.
6 But if you look at the correspondence that 7 went on between Duke and the NRC staff starting in 8 2008, the staff started saying to Duke, we're 9 concerned that you are not providing adequate 10 protection to public health and safety, and asking for 11 information. And Duke would send information. NRC 12 would ask for more.
13 And this went back and forth and back and 14 forth. The NRC had a concern that Duke was not 15 providing adequate protection from flooding at Oconee, 16 but it was exercising its discretion to wait until 17 Duke submitted the information it was looking for and 18 then reached some resolution, which was what the 2011 19 safety evaluation did. It said, we've now reached the 20 point where we find there's adequate protection --
21 reasonable assurance of adequate protection. And 22 here's why.
23 So, you know, the idea that if a plant is 24 operating, there's no adequate protection issue, that 25 just doesn't hold up. Yeah.
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78 1 CHAIRMAN BOLLWERK: All right. Mr.
2 Lighty, I don't want to cut you out of this 3 conversation. Why don't you go ahead and give us your 4 view of this?
5 MR. LIGHTY: Thank you, Judge Bollwerk.
6 Just very briefly, I would like to note that the 2010 7 CAL was actually a letter that came as part of a 2018 8 50.54(f) request from the NRC related to potential 9 adequate protection concerns that the NRC had that CAL 10 merely documented the commitments that Duke made as 11 part of that review process.
12 But the culmination of that process was 13 the NRC determined that there was no adequate 14 protection issue. They closed out the CAL based on 15 the analyses that were done. The alternative to 16 closing out the CAL was to initiate a backfit. The 17 NRC did not do that, and they used very unequivocal 18 language, noting that the CAL had been closed, noting 19 that the 2015 flood hazards reevaluation report was an 20 acceptable alternative means of complying with the 21 CAL.
22 There's no ambiguity in the regulatory 23 history of this proceeding. And we've spent the last 24 30 minutes, I think, talking about the procedural 25 nuances of NRC safety reviews, far afield from this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
79 1 SLR proceeding. But, again, the NRC made a decision 2 not to initiate a backfit because they found there was 3 no reasonable protection issue.
4 That's a conclusion that the regulatory 5 record clearly documents, and it can't be disputed 6 here.
7 CHAIRMAN BOLLWERK: All right. Ms.
8 Curran, I'll allow you one more chance, and then I'm 9 going to go back to Ms. Woods.
10 MS. CURRAN: There is no statement 11 anywhere that says there is no adequate protection 12 issue here. It is avoided discussing it. You will 13 not find one single statement that says the 2011 14 safety evaluation was mistaken; it was wrong. We've 15 changed our minds. Here's our new safety analysis for 16 adequate protection. Nothing.
17 This is like a pay no attention to that 18 man behind the curtain. The safety evaluation is out 19 there. It hasn't been repudiated. It cannot just 20 evaporate or disappear.
21 CHAIRMAN BOLLWERK: All right. Thank you.
22 Ms. Woods, anything further?
23 MS. WOODS: Nothing in particular to note, 24 Your Honor, other than that since 2010, as has been 25 noted throughout the record, that the NRC staff did NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
80 1 engage extensively with Oconee on its flood hazards 2 protection but did culminate into the issuance of that 3 letter in 2020.
4 So just to note that there has been ten 5 years' worth of engagement with Oconee on this 6 particular matter. Thank you, Your Honor.
7 CHAIRMAN BOLLWERK: All right. Thank you.
8 All right. Judge Trikouros, I think you 9 have some questions.
10 I thank Counsel for their responses.
11 I think you may be muted.
12 JUDGE TRIKOUROS: Can you hear me?
13 CHAIRMAN BOLLWERK: Yes.
14 JUDGE TRIKOUROS: The original design 15 basis of Oconee, as I understand it, did not include 16 a Jocassee Dam failure as part of it. Is that 17 correct? So I'll ask that question to the staff.
18 Hello?
19 MS. WOODS: Apologies, Your Honor. In 20 terms of the original design basis for the site, my 21 understanding -- let me just confirm very quickly with 22 the staff.
23 My apologies, Judge Trikouros. Would it 24 be possible to consult with the NRC staff?
25 JUDGE TRIKOUROS: Sure.
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81 1 MS. WOODS: Thank you, Your Honor.
2 (Pause.)
3 MS. WOODS: Thank you for your patience, 4 Judge Trikouros. We can certainly take your question 5 down for the record and provide you with a response.
6 JUDGE TRIKOUROS: All right. That's fine.
7 But --
8 MR. LIGHTY: Your Honor, this is Ryan 9 Lighty, Counsel for Duke. I can confirm that the 10 original design basis for Oconee did not include a 11 flooding event from the Jocassee Dam.
12 JUDGE TRIKOUROS: Yeah. All right. And 13 that's basically my understanding, as well, that that 14 was the case. And so that the external flooding 15 design basis for the plant appears to have been some 16 probable maximum flood event, such as a limiting 17 precipitation event or some other flooding event, but 18 did not include the Jocassee Dam.
19 My question is what is the current 20 licensing basis of the plant with respect to external 21 flooding? Is it different than what it was originally 22 as a result of all these years of letters and 23 modifications that have been going on since the 24 original design basis was established? And I'd like 25 to ask that question to both the staff and the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
82 1 Applicants.
2 MR. LIGHTY: Yes, Your Honor. Ryan 3 Lighty. I can take the first attempt at this answer.
4 The design basis for Oconee has not changed since 5 original licensing. The Jocassee Dam failure flooding 6 event was not part of the original licensing basis.
7 The NRC issued the 2008 50.54(f) request 8 for information to evaluate whether a backfit was 9 necessary to add that to the design basis. That 10 resulted in the CAL process and the various analyses 11 that were done and the NRC's conclusion that a backfit 12 was not needed.
13 And then intervening in that is the 14 September 20th, 2012, letter from the NRC stating that 15 the CAL review process would be superseded by the 16 Fukushima 50.54(f) letter, which considered whether 17 all of the licensed power reactors in the plant needed 18 to amend their design bases to incorporate certain 19 events.
20 And the NRC eventually closed out that 21 process, concluding that the design basis for Oconee 22 did not need to be modified. So through two separate 23 50.54(f) processes, the NRC has not modified the 24 design basis of the plant. It's still a beyond-25 design-basis event.
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83 1 And as a result of various commitments 2 that Duke made as part of the CAL process and as part 3 of the assessment for the post-Fukushima reviews, Duke 4 has committed to take certain actions, has made plant 5 modifications, and has committed to maintain certain 6 compensatory measures and (audio interference) 7 commitments that are part of the licensing basis, but 8 the design basis still remains the same. A Jocassee 9 Dam failure is a beyond-design-basis event.
10 JUDGE TRIKOUROS: There were 11 communications back and forth that indicated that 12 while the Jocassee Dam failure was not a design-basis 13 event, it was a design criterion for the plant. Are 14 you familiar with that? And I'm trying to understand 15 the implications of that.
16 I believe that puts it in the category of 17 anticipated transience without scram and station 18 blackout, for example, which are not design basis, but 19 they are design criteria. Are you familiar with the 20 Applicant's -- Duke's -- discussions regarding making 21 the dam failure a design criterion and what the 22 implications of that are?
23 MR. LIGHTY: Unfortunately, Your Honor, 24 I'm not familiar with those discussions and 25 considerations.
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84 1 JUDGE TRIKOUROS: All right. So the 2 current licensing basis of the plant, as far as you're 3 concerned, has not changed?
4 MR. LIGHTY: Well, the design basis has 5 not changed. The licensing basis does, however, 6 contain the commitments that Duke made to the physical 7 modifications, the compensatory measures, and other 8 actions as a result of the CAL and the post-Fukushima 9 process.
10 JUDGE TRIKOUROS: And the full list of 11 these changes would be basically the five rather large 12 modifications that were identified in -- I believe 13 it's an April 29th, '11, letter -- and also the CAL 14 measures? Is that the sum total of the changes that 15 have been made?
16 MR. LIGHTY: Yes, I believe that's 17 correct. The physical modifications were the five 18 modifications that the NRC inspected and noted in its 19 2016 CAL close-out letter, and the measures that Duke 20 initially committed to as part of the 2008 50.54(f) 21 and the CAL process, they were initially interim 22 compensatory measures that Duke agreed to make 23 permanent measures. And so those are documented 24 commitments.
25 JUDGE TRIKOUROS: And the 2011 safety NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
85 1 evaluation that we've been discussing, that document 2 had a stated purpose in the document of basically 3 doing a technical evaluation of the 2010 inundation 4 study to determine if it was indeed bounding. Were 5 there other purposes of that safety evaluation that 6 you're aware of?
7 MR. LIGHTY: Your Honor, I'd have to go 8 back and look at that record a bit more close. I 9 think the genesis of that really was the 2008 50.54(f) 10 letter, in which the staff was trying to determine 11 whether a backfit was necessary. And so that, I 12 think, is the bigger picture of why the CAL came 13 about, why the analysis and the safety evaluation were 14 performed.
15 JUDGE TRIKOUROS: Yeah. Let me ask the 16 staff --
17 MS. CURRAN: Can I make a comment before 18 you move on, Judge Trikouros, in response?
19 CHAIRMAN BOLLWERK: Let me just find out.
20 Do you want to hear from the staff first 21 and then we'll go to Ms. Curran, or do we want to hear 22 from Ms. Curran now?
23 JUDGE TRIKOUROS: We'll let Ms. Curran 24 speak. That's fine.
25 MS. CURRAN: Thank you. I just wanted to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
86 1 respond to a point that was made by Mr. Lighty about 2 the staff's determination that a backfit was not 3 required. Honestly, I can't put my finger on the 4 letter right now -- oh, it was apparently a letter 5 dated March 19th, 2013, ML16070A287.
6 But my recollection of this process is 7 that the staff was assuming that Duke and the NRC had 8 worked out mitigation measures needed for adequate 9 protection and had agreed upon those measures, and 10 therefore, there's no point to a backfit order if the 11 parties agree.
12 So I just want to dispel any implication 13 that a backfit was deemed unnecessary because there 14 was no sum determination there was no adequate 15 protection issue anymore. I believe it was because 16 the staff thought, well, adequate protection is being 17 addressed here thanks to the 2011 safety evaluation.
18 That's it.
19 JUDGE TRIKOUROS: Yeah, I'd like to ask 20 the staff the purpose of that 2011 safety evaluation, 21 which we've been discussing so much here. As I said 22 before, the stated purpose, the purpose in the safety 23 evaluation itself, is to determine whether or not the 24 2010 inundation analysis was indeed bounding.
25 I didn't see any other purpose in that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
87 1 document, even though a great deal is being ascribed 2 to that document. Can the staff educate me here on 3 was that document supposed to have other purposes?
4 MS. WOODS: Thank you for that question, 5 Your Honor. I can confirm with the NRC staff, but I 6 believe that is the case that it was just responding 7 to the CAL. But let me confirm with them, if I may 8 have just a minute to consult. Thank you.
9 JUDGE TRIKOUROS: All right. Thank you.
10 MS. WOODS: Thank you, Your Honor.
11 MS. CURRAN: Judge Trikouros, while we're 12 waiting, I just want to get in the queue to respond to 13 that.
14 JUDGE TRIKOUROS: I'm sorry. Say again.
15 I didn't hear you.
16 MS. CURRAN: While we're waiting, I just 17 want to put myself in line to respond to your question 18 after Ms. Woods.
19 JUDGE TRIKOUROS: Fine. Fine.
20 (Pause.)
21 MS. WOODS: Thank you for your patience, 22 Judge Trikouros. In response to your question, that's 23 the only stated purpose that we can identify in the 24 letter. It's stated right under the subject letter 25 that it's regarding the confirmatory action letter.
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88 1 But I can take that question for the record and 2 provide you a response.
3 JUDGE TRIKOUROS: All right. That's fine.
4 Thank you.
5 MS. WOODS: Thank you.
6 JUDGE TRIKOUROS: What I'm getting at here 7 is that the -- and then Ms. Curran can comment. In 8 the petition and Mr. Mittman's document -- I believe 9 it's page 13 -- it says the NRC safety evaluation 10 required Duke to protect the Oconee site from random 11 sunny-day failures of the Jocassee Dam to a flood 12 depth of 19.5 feet in order to ensure adequate 13 protection.
14 Do you agree that that is what came out of 15 that safety evaluation, that it was a requirement to 16 protect against 19.5-foot flood?
17 MS. WOODS: Judge Trikouros, is your 18 question directed at the NRC staff?
19 JUDGE TRIKOUROS: Oh, I'm sorry. I was 20 referring to the NRC staff, at least right now.
21 MS. WOODS: Thank you, Your Honor. As a 22 matter of general principle, NRC staff safety 23 evaluations are not part of a licensing basis, nor do 24 they establish requirements. They are the 25 documentation that provides the technical safety and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
89 1 legal basis for the NRC staff's decisions in those 2 types of matters.
3 JUDGE TRIKOUROS: All right. So what 4 we're left with is that that safety evaluation really 5 had only one purpose, and that was to determine 6 whether or not the analysis that resulted in the 19.5-7 foot inundation was correct and bounding.
8 MS. WOODS: As I mentioned, Your Honor, 9 the only stated purpose that I can see at this time is 10 responding to the CAL. But as I mentioned, I will 11 take that question back for the record. But to 12 clarify, NRC staff safety evaluations do not contain 13 requirements.
14 JUDGE TRIKOUROS: All right.
15 Ms. Curran, do you want to say something 16 now before I ask Mr. Lighty?
17 MS. CURRAN: Yes, please. Thank you. In 18 fact, the safety evaluation establishes what Duke 19 needs to do in order to protect against -- or 20 establishes that Duke needs to protect against a flood 21 of 19 and a half feet in order to provide a reasonable 22 assurance of adequate protection of public health and 23 safety.
24 That's an important part of this letter.
25 So, you know, that sentence -- you read this paragraph NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
90 1 a little while ago, this paragraph on page 13 of the 2 safety evaluation, including the sentence that says 3 that the Case 2 scenario will be the new flooding 4 basis for this site.
5 And if you look earlier in the safety 6 evaluation, on page 12, it says that the intake dyke, 7 which has a top elevation of 815 feet MSL, will allow 8 flooding of the plant upon overtopping, independent of 9 the breach locations.
10 And we know from page 2 that the ground 11 elevation is 796 feet. If you subtract 796 from 815, 12 you get 19 feet. So this is not just a conclusion.
13 It's a stipulation as to what Duke needs to do to 14 provide adequate protection.
15 JUDGE TRIKOUROS: All right. Mr. Lighty, 16 do you agree with that, that that was the purpose of 17 that safety evaluation in addition to the stated 18 purpose?
19 MR. LIGHTY: No, Your Honor. I see no 20 language in the 2011 safety evaluation that requires 21 anything. There is certainly nothing in there that 22 says this and only this analysis (audio interference) 23 for some requirement that Duke must comply with.
24 There's no language in it. Ms. Curran 25 does not mention it. It's not referenced in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
91 1 (audio interference) report. Nowhere is there any 2 language requiring any action to protect the site 3 against a 19-something-foot flood event.
4 JUDGE TRIKOUROS: And what I was reading 5 before, just in case it wasn't clear, was the petition 6 itself was -- in the Mittman report was indicating 7 these rather hard requirements which don't appear to 8 be easily discernible from that safety evaluation.
9 In fact, it appears that the only purpose 10 was what I had mentioned earlier, to verify that the 11 19.5 feet was, in fact, bounding and correct.
12 MR. LIGHTY: All right.
13 MS. CURRAN: Judge Trikouros, can I add 14 something here? I think a sentence that has to be 15 focused on is that the Case 2 scenario will be the new 16 flooding basis for the site. That sentence appears on 17 page 2 of the safety evaluation and appears on page 18 13. What is the flooding basis for this site?
19 So this is a basis on which to establish 20 required conditions. It's not written in the clearest 21 possible terms, but this is the technical writing that 22 the NRC staff does to say, this is what you must do to 23 give us a reasonable assurance of adequate protection.
24 And you don't have it now.
25 And you look back at the letters that the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
92 1 NRC wrote before this safety evaluation. They said to 2 Duke, you don't have reasonable assurance of adequate 3 protection. What are you going to do to show us that 4 you've got it?
5 So it's not approving any kind of status 6 quo. It's not a purely analytical letter. It's 7 saying, here's what you guys got to do to come into 8 compliance with the adequate protection standard.
9 JUDGE TRIKOUROS: All right, thank you.
10 So let me carry this a little further then. Again, 11 I'd like to ask the Staff, initially. That 19.5 foot 12 flooding evaluation, transitioned into the flood 13 hazard reevaluation report. And was in fact 14 superseded by the flood hazard reevaluation report.
15 Can you explain to me how that transition occurred?
16 This is for the Staff.
17 MS. WOOD: Thank you, Your Honor. I was 18 trying to come up before you.
19 As that really is a very technical 20 question in terms that that relates to the current 21 ongoing operations of the site, I would need to 22 consult with the NRC Staff to get a better response 23 for you. But I can certainly do that, or I can take 24 the question for the record. But I can certainly 25 consult with the Staff now if you would like.
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93 1 JUDGE TRIKOUROS: All right, that would be 2 fine. Thank you.
3 MS. WOOD: Thank you, Your Honor.
4 (Pause.)
5 MS. WOOD: Thank you again for your 6 patient, Judge Trikouros. The purpose of the flood 7 hazard reevaluation report was to respond to the 8 50/54(f) letters that were post-Fukushima.
9 JUDGE TRIKOUROS: Yes, I understand that.
10 But once they were, once those responses were 11 developed, those analyses associated with that 12 superseded the analyses that were in the 2011 safety 13 evaluation, that's correct, I, that is basically what 14 we've been discussing.
15 MS. WOOD: That is correct, Your Honor.
16 JUDGE TRIKOUROS: Yes. Well, therefore 17 the 2011 safety evaluation is not sitting out there 18 unfulfilled. It sounds to me like it's been 19 superseded by the two, I believe there were two, flood 20 hazard reevaluation reports. The initial and the 21 revised. Is that correct?
22 MS. WOOD: That is correct, Your Honor.
23 JUDGE TRIKOUROS: Great. So any 24 modifications that have been made to the plant, the 25 basis for those is not that safety evaluation but the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
94 1 flood hazard reevaluation analyses, is that correct?
2 MS. WOOD: If I may consult with the NRC 3 Staff, but yes, that is correct. That would be the 4 position.
5 JUDGE TRIKOUROS: Okay.
6 MS. CURRAN: Judge Trikouros?
7 JUDGE TRIKOUROS: Okay.
8 MS. CURRAN: Judge Trikouros, can I 9 comment on that question that you asked?
10 JUDGE TRIKOUROS: Yes. Yes.
11 MS. CURRAN: You just said that, you asked 12 whether the post-Fukushima measures supersedeeded the 13 2011 safety evaluation. And I just want to make sure 14 that the record is clear, no mention of that term is 15 made in any NRC document.
16 There is no document that says, we hereby 17 say that the 2011 safety evaluation no longer has 18 validity or traction. Never said, never mentioned.
19 That is the key here.
20 They talk about how the CAL was closed 21 out. And earlier letter was closed out. But they 22 skip over the 2011 safety evaluation. There is an 23 avoidance of that.
24 And I think the reason is because the 2011 25 safety evaluation contains legal language that gives NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
95 1 Duke and the NRC a problem. And the way the NRC and 2 Duke choose to deal with that was, not mention it, 3 avoid it, pretend it's not in the room. It's the 4 elephant in the room. It's still there.
5 And you can search and search and you will 6 not find any document that says it's superseded, it's 7 revoked, it's reconsidered, we were wrong, we're 8 changing it. You can't find anything like that. I 9 just want to make that clear.
10 MR. LIGHTY: Your Honor, if I may. Just 11 to correct Ms. Curran's very adamant statement.
12 The word superseded appears very clearly 13 in a NRC's November, I'm sorry, September 20th, 2012 14 letter that was issued after the 2011 safety 15 evaluation stating that the Agency intended to 16 maintain the CAL activity only then proceeded by 17 regulatory action related to Fukushima responses.
18 And you can also look to the June 16th, 19 2016 CAL closure report to understand why the NRC did 20 that. It was "to ensure consistency in the Staff's 21 approach to addressing these issues for all plants."
22 So the NRC made a policy decision that 23 they were shifting to this standardized process for 24 all plants to evaluate these reevaluated flooding 25 hazards. And the NRC's intention that that process NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
96 1 would superseded the 2011 safety evaluation is made 2 clear in the September 20th, 2012 letter.
3 CHAIRMAN BOLLWERK: Ms. Curran, I think 4 you're muted.
5 MS. CURRAN: I'm sorry. I just want to 6 comment. I'm looking at the letter and it doesn't say 7 anything about the 2011 safety evaluation, that I can 8 see. These letters all go back to the CAL that was 9 from 2010. But none of them talk about the safety 10 evaluation.
11 Give me something that says, the safety 12 evaluation was wrong. Where is that?
13 CHAIRMAN BOLLWERK: Judge Trikouros, do 14 you have another question for the Staff or where are 15 we at?
16 JUDGE TRIKOUROS: I wanted to hear Mr.
17 Lighty's --
18 CHAIRMAN BOLLWERK: Okay.
19 JUDGE TRIKOUROS: -- response to that 20 statement.
21 CHAIRMAN BOLLWERK: All right. Go ahead.
22 MR. LIGHTY: The NRC very clearly stated 23 that the reevaluated flood hazard, the FHRR, was an 24 acceptable alternative to complying with the CAL 25 requirements. So, let's think about this more NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
97 1 broadly.
2 I mean, there are alternative ways to 3 satisfy a regulatory requirement. If you choose one 4 alternative and comply with the requirement, you are 5 not in noncompliance with the alternative you did not 6 choose. There were alternative acceptable means of 7 satisfying the CAL requirements.
8 Duke chose one. Duke committed to take 9 actions based on that analysis, the 2015 FHRR. It 10 made physical modifications, it notified the NRC of 11 those modifications. The NRC inspected against those 12 modifications.
13 And the NRC closed out the CAL process, 14 transitioned the further review to the Fukushima 15 process. And eventually closed out that process as 16 well.
17 MS. CURRAN: Judge Trikouros?
18 JUDGE TRIKOUROS: Yes, Ms. Curran.
19 MS. CURRAN: I just wanted to say, I have 20 experience with the concept that there are more, 21 there's alternative ways to satisfy the regulations.
22 Absolutely.
23 But in the end there's a standard. The 24 alternative has to meet the adequate protection 25 standard. And clearly in all these post-Fukushima NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
98 1 documents, that standard is not applied, it's 2 something else.
3 It's something that has no origins in the 4 Atomic Energy Act, no origins in the Part 50 5 regulations. It's something the NRC came up with in 6 the course of this Fukushima review.
7 And maybe that's fine for ordinary, 8 regular operation, but we're in a license renewal case 9 where there has to be an adequate environmental review 10 of significant environmental issues. And the G, as I 11 said earlier, the GEIS relies on the Atomic Energy Act 12 based safety regulatory framework for a large portion 13 of its environmental findings.
14 Alternatives that don't meet the Atomic 15 Energy Act standards, that don't even purport to meet 16 them, they might be good for some post-Fukushima 17 purposes but they don't fit into the framework that 18 the GEIS relies on for these environmental findings.
19 That's got to be the Atomic Energy Act framework.
20 That was setup a long time before the 21 Fukushima accident happened. And if the NRC is going 22 to change that, they got to do a new EIS to change it.
23 JUDGE TRIKOUROS: All right, thank you 24 very much.
25 MR. LIGHTY: Your Honor, if I may just NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
99 1 very briefly, to tag on to that. We have spent the 2 last hour or so talking about current licensing basis 3 safety issues with very little discussion of NEPA, but 4 I would like to remind the Board that the 2011 safety 5 evaluation very clearly assesses a bounding scenario, 6 which is outside the scope of NEPA.
7 JUDGE TRIKOUROS: Thank you.
8 MS. CURRAN: And we have addressed that.
9 Mr. Mittman's analysis is based on estimated risk, 10 it's not a bounding analysis.
11 JUDGE TRIKOUROS: Going back to Mr.
12 Mittman's evaluation in the petition, he mentions that 13 the overtopping of the dam and seismic failure of the 14 dam were not included in the NRC's 2011 safety 15 evaluation. And I believe that's also, I believe 16 that's on Page 18 of Mr. Mittman's report in the 17 petition.
18 No, I take that back, it might have been 19 back on Page 13 of the, in the same area that I had 20 read earlier.
21 It's just noting that, in the cover letter 22 of the safety evaluation it says the random sunny-day 23 failure scenario was selected after evaluation of the 24 failure modes determined that the potential failure of 25 the Jocassee Dam from either an overtopping event or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
100 1 seismic event was not credible.
2 Now, that's not in the actual safety 3 evaluation but it is in the cover letter that explains 4 why the safety evaluation was focusing on the Jocassee 5 Dam sunny-day failure. Do you have any comment on 6 that, Ms. Curran?
7 MS. CURRAN: We could not find any public 8 documentation of the NRC's basis for making that 9 finding. As you say, it was stated in a cover letter, 10 there's no technical underpinning for it, it's just a 11 statement. And we found other information that 12 contradicted that. So that was what we relied on.
13 If we could have found documentation of 14 it, we would have looked at it and addressed it. But 15 it's just a bare-naked statement.
16 JUDGE TRIKOUROS: I believe I do have 17 reference to other documents where that same statement 18 is made within a letter. Again, it doesn't have any 19 more, it doesn't asserted anything more than a, sort 20 of a statement of that. I don't know if there was 21 ever an evaluation done.
22 Well, there is a clear statement that 23 there was an evaluation done, but I haven't seen the 24 evaluation. All right.
25 So let me ask this then to all of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
101 1 parties. If in fact the, it's not credible for 2 overtopping or seismic failure of the dam, then what 3 effect would that have in the determination of the 4 core damage frequency and large early release 5 frequencies that Mr. Mittman is saying would be much 6 larger because of those two effects?
7 CHAIRMAN BOLLWERK: Who do you want to 8 start with?
9 JUDGE TRIKOUROS: Ms. Curran.
10 MS. CURRAN: Okay, just give me one minute 11 to consult with Mr. Mittman.
12 JUDGE TRIKOUROS: Thank you.
13 (Pause.)
14 CHAIRMAN BOLLWERK: While she's doing 15 that, I'm going to have a question about, does that 16 evaluation exists that everybody seems to say is 17 simply stated? For Mr. Lighty or Ms. Woods. Does 18 that document exist?
19 MS. CURRAN: I'm sorry, Judge Bollwerk, 20 could you repeat your question, I was thinking about 21 something else?
22 CHAIRMAN BOLLWERK: Sure. I didn't want 23 to interrupt what you were doing, but there's a 24 question about whether there is a bald statement that 25 there was an evaluation. I'm just wondering, does NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
102 1 that evaluation exist? What's the document?
2 Anyway, go ahead and do what you're going 3 to do and we'll come back to that.
4 JUDGE TRIKOUROS: It's a good question.
5 (Pause.)
6 MS. CURRAN: Judge Trikouros, I think I 7 know what you were asking me and I have an answer.
8 That, I think you're asking if we took overtopping out 9 of the picture, would the environmental impact still 10 be significant? Is that what you're asking?
11 JUDGE TRIKOUROS: Yes, that's the bottom 12 line really. Because the statement was made that the 13 core damage frequency is much higher than assumed and 14 that it's even higher than that because of the 15 overtopping and seismic contributions. Which is 16 stated everywhere, that I've seen, to be not credible.
17 And I wasn't sure what not credible means 18 with respect to core damage frequency and large early 19 release frequency.
20 MS. CURRAN: All right. Mr. Mittman tells 21 me that his calculation does include overtopping and 22 seismic. But if you were to leave those out it would 23 still be significant.
24 JUDGE TRIKOUROS: All right, fine. I 25 don't know what to say about that. I don't know what NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
103 1 the word significant means in term of a number, but 2 that's fine.
3 MS. CURRAN: Well, he hasn't broken it 4 down sitting right here. And if you wanted 5 supplemental, you know, a supplemental declaration 6 saying what that would be, we could provide it. I 7 don't think he can do it off the top of his head.
8 JUDGE TRIKOUROS: All right. Well, what 9 I hear then is that the CDF and the LERF would not 10 change very much if you excluded overtopping and 11 seismic?
12 MS. CURRAN: That's correct.
13 JUDGE TRIKOUROS: All right. All right, 14 thank you very much.
15 MS. CURRAN: Thank you.
16 JUDGE TRIKOUROS: Judge Bollwerk, did you 17 want to follow-up on your question?
18 CHAIRMAN BOLLWERK: Let me just go to the 19 Staff and the Applicant, whoever wants to answer 20 first. We've heard statements that this is, it's a 21 statement that has no support. At least none that can 22 be found in the record. Do you want to address that 23 in any way?
24 I shouldn't say the record, but the public 25 available documents may be a better term. So.
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104 1 MS. WOOD: Judge Bollwerk, if you could 2 clarify your question when you say, this statement.
3 To what are you referring?
4 CHAIRMAN BOLLWERK: So, the statement is, 5 and I don't have it in front of me but Judge Trikouros 6 read it. That from the letter that basically says 7 that overtopping and seismic are not considered, Judge 8 Trikouros, is the word credible or not --
9 JUDGE TRIKOUROS: Yes. It's the cover 10 letter to the safety evaluation that we're referring 11 to specifically says that the reason they used the 12 Jocassee Dam sunny-day failure was because in 13 evaluating the overtopping and seismic failure they 14 found both of those to be not credible. And that's 15 the reason the safety evaluation does that detailed 16 evaluation, only of the Jocassee Dam failure. Of the 17 sunny-day Jocassee Dam failure.
18 And that's in the cover letter to the 19 safety --
20 CHAIRMAN BOLLWERK: Right. And the 21 question I guess I'm posing is, is there any 22 documentary support among the documents that we have 23 access to, that shows that that, how that evaluation 24 was done or what the results were.
25 MS. WOOD: Thank you for that question, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
105 1 Your Honor. Or I'm sorry, Mr. Lighty.
2 MR. LIGHTY: Go right ahead.
3 MS. WOOD: In response to your question, 4 there is a document, it's the 2015 Staff assessment, 5 that does state that, as documented in the FHRR staff 6 assessment, the NRC Staff concluded the licensee 7 demonstrated that, one, seismically induced failure of 8 the Jocassee Dam is not a reasonable mode of failure 9 based on current information, present day methodology 10 and regulatory guidance.
11 Two, overtopping induced failure of the 12 Jocassee Dam is not reasonable, is not a reasonable 13 model of failure based on current information, present 14 day methodologies and regulatory guidance.
15 And three, the sunny-day failure of 16 Jocassee Dam was considered an unlikely, although 17 reasonable failure mode. The licensee postulated the 18 most likely locations of the breach. And inspection 19 of piping in the westbound abutment. I won't go 20 further.
21 CHAIRMAN BOLLWERK: Right. So the 2015 22 document cites the 2011 document that makes a 23 statement that I'm still wondering what the support 24 for it is.
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106 1 the technical staff, but I can take that question for 2 you for the record and look into that and provide you 3 with a response.
4 CHAIRMAN BOLLWERK: Let me see, does Mr.
5 Lighty have anything he wants to say about this, one 6 way or the other. Maybe he knows of a document or 7 something that Oconee filed with the staff that we 8 just aren't, that didn't come to our attention at this 9 point.
10 MR. LIGHTY: No. Off the top of my head, 11 Your Honor, I'm not aware of that specific document.
12 I think we shouldn't assume that it doesn't exist, for 13 a statement like that.
14 CHAIRMAN BOLLWERK: I'm not necessarily 15 trying to assume that but I don't know what it is.
16 MR. LIGHTY: Right. Right. And in the 17 2016, April 14th letter, in Section 3.4.2 the Staff 18 does mention that the 2015 FHRR evaluated the 19 potential for those events and determined that neither 20 type of failure is credible. So I believe that there 21 is an assessment in the 2015 FHRR that discuses that 22 issue.
23 And in any event, the sunny-day failure is 24 the bounding critical failure event for the site. And 25 that is also documented in a 2015 FHRR.
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107 1 JUDGE TRIKOUROS: All right. Now, Mr.
2 Lights, your answer to the petition on Page 18, 3 Section 3 it says, consideration of seismic and 4 overtopping events.
5 It specifically says that the 2015 FHRR 6 considered the potential for overtopping seismic and 7 sunny-day failures of the Jocassee Dam. So what 8 you're saying is that, that the other failures were 9 evaluated as part of the Fukushima response.
10 MR. LIGHTY: Yes, Your Honor.
11 JUDGE TRIKOUROS: There's no reference 12 here. Yes, there is no --
13 MR. LIGHTY: Yes. Yes, that was in 14 response to an assertion by Mr. Mittman that the NRC 15 and Duke were silent about those mechanisms. And 16 that's certainly not the case, they have been 17 considered.
18 JUDGE TRIKOUROS: Well, they have been 19 considered, at least by the flood hazard reevaluation 20 report, not in the safety evaluation apparently.
21 Which only considered the sunny-day failure.
22 MR. LIGHTY: Yes. As directed by the NRC.
23 Yes, Your Honor.
24 JUDGE TRIKOUROS: All right. There's an 25 April 29th, 2011 document that Duke issued. It NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
108 1 provides an overall mitigation strategy and a detailed 2 list of modifications. Which I assume have been 3 completed.
4 Do you know if that document was 5 addressing the 19.5 foot inundation level?
6 MR. LIGHTY: No, Your Honor. The April 7 29th, 2016 letter confirming the completion of the 8 modifications was based on the 2015 FHRR. And that's 9 the document that, or rather what Duke committed to, 10 in its letter of August 8, 2014. Duke specifically 11 said we're going to take actions on the Fukushima 12 reevaluation.
13 JUDGE TRIKOUROS: So, we could conclude, 14 you're saying, that there were no modifications made 15 to this plant in response to the 2011 safety 16 evaluation, but only to the flood hazard reevaluation 17 analyses, is that correct?
18 MR. LIGHTY: That's correct, Your Honor.
19 The Fukushima event happened just two months after the 20 2011 safety evaluation. And that's when the NRC 21 announced its intent to (audio interference) --
22 CHAIRMAN BOLLWERK: You dropped off, Mr.
23 Lighty. We lost your audio, sorry.
24 MR. LIGHTY: All right, are you able to 25 hear me now?
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109 1 CHAIRMAN BOLLWERK: Yes. Thank you.
2 MR. LIGHTY: Okay. So, yes, the 3 modifications that were completed, as noted in the 4 April 29th, 2016 letter, were based on the 2015 FHRR.
5 And that's the commitment that Duke made in a separate 6 letter on August 8th, 2014.
7 So, about two years before that Duke 8 committed to take those actions based on the FHRR, 9 rather than the 2011 safety (audio interference) -- it 10 was issued and that the NRC announced its intents to 11 the perform superseding analyses of that issues.
12 JUDGE TRIKOUROS: And does the Staff agree 13 with that?
14 MS. WOOD: Your Honor, let me consult with 15 the NRC Staff.
16 JUDGE TRIKOUROS: Thank you.
17 MS. WOOD: And, Your Honor, if I may 18 clarify your question, is it, is your question 19 regarding the status of the, or the bearing of the 20 2015 flood hazard reevaluation report?
21 JUDGE TRIKOUROS: The question is, were 22 the modifications that have been implemented at the 23 plant, based upon the 2015 flood hazard reevaluation 24 report, and not on the (audio interference) --
25 MS. WOOD: Understood, Your Honor. If I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
110 1 may --
2 JUDGE TRIKOUROS: -- and that, yes, go 3 ahead. Sorry.
4 MS. WOOD: No, my apologies. There was a 5 bit of an audio delay, please continue.
6 JUDGE TRIKOUROS: And that's really the 7 question. That the 2011 safety evaluation 8 requirements, if there was such things, were not 9 implemented in any plant modification, but only the 10 2015 flood hazard reevaluation report, what formed the 11 basis of the plant modification.
12 MS. WOOD: Thank you for the 13 clarification, Your Honor. If I may, let me consult 14 with the NRC Staff?
15 JUDGE TRIKOUROS: Okay, thanks. Thank 16 you.
17 MS. WOOD: Thanks, Your Honor.
18 JUDGE ARNOLD: While she's consulting, is 19 this video conference ending at 4 'clock?
20 CHAIRMAN BOLLWERK: Not necessarily.
21 JUDGE ARNOLD: Okay.
22 JUDGE TRIKOUROS: This will be my last 23 question and I'll move on to, and then you can move on 24 to your questions. Because we're not going to get all 25 the questions in today, obviously, so.
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111 1 (Pause.)
2 MS. WOOD: Thank you, Your Honor. As it 3 relates to the 2011 safety evaluations, the changes 4 were not implemented since the Fukushima earthquake 5 happened, only about two months later. But there were 6 changes implemented as a result of the 2015 flood 7 hazard reevaluation report.
8 JUDGE TRIKOUROS: All right. All right, 9 thank you very much.
10 MS. WOOD: Thank you, Your Honor.
11 JUDGE TRIKOUROS: I appreciate that.
12 MS. CURRAN: Judge Trikouros --
13 JUDGE TRIKOUROS: So that --
14 MS. CURRAN: -- can I make a comment?
15 JUDGE TRIKOUROS: Go ahead.
16 MS. CURRAN: Hello, this is Diane, can I 17 make a comment?
18 JUDGE TRIKOUROS: Yes. Yes, please.
19 MS. CURRAN: Now, someone mentioned the 20 Fukushima accident happened within a couple of months 21 after the issuance of the safety evaluation. The 22 great irony here is that the Fukushima accident was 23 used as a tool, the post-Fukushima review, was used as 24 a tool for lowering the level of safety at Oconee for 25 dropping the flood height against which this plant had NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
112 1 to be protected, it looks like. That's the 2 implication.
3 And so, this terrible accident that 4 happened in Japan, what we learned from that was that 5 the standards for Oconee could be relaxed, or while it 6 had been just a few months prior, determined to be 7 necessary for adequate protection. And the standard 8 applied was just a plain old word, reasonable. Not 9 reasonable assurance of adequate protection but just, 10 this is reasonable. What does that mean? Good 11 enough.
12 And it seems like the supreme irony that 13 the Fukushima accident was used to essentially ignore 14 the safety evaluation. That ought to go into the 15 record, the NEPA record, for this decision.
16 The public should know what happened at 17 Oconee. Because it's not good. It does not reflect 18 well on this Agency. Thank you.
19 CHAIRMAN BOLLWERK: Could I go back and 20 clarify one thing. Ms. Woods, was your answer that 21 you agreed with Mr. Lighty or you didn't agree with 22 Mr. Lighty, in terms of the way he characterized it?
23 MS. WOOD: Thank you for that question, 24 Your Honor. To the extent that Mr. Lighty is 25 indicating that the 2011 FHRR changes were not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
113 1 implemented as a result of the Fukushima earthquake 2 and that changes were actually made as a result of the 3 2015 flood hazard reevaluation report, I would be in 4 agreement with that characterization.
5 CHAIRMAN BOLLWERK: Okay, thank you.
6 Sorry.
7 MS. WOOD: Thank you, Your Honor.
8 CHAIRMAN BOLLWERK: Judge Trikouros?
9 JUDGE TRIKOUROS: Again, I have many 10 questions. I think at this point I'm going to defer 11 to Judge Arnold.
12 JUDGE ARNOLD: Okay, let's see. On Page 13 14 of Mr. Mittman's report he states, in 2010 NRC 14 finalized its own generic dam failure frequency. And 15 that was the 2.8 times 10 to the minus 4 number.
16 And on Page 17 of Duke's answer they 17 discuss their probabilistic best estimate calculation 18 of dam failure. Specifically for the Jocassee Dam.
19 And that also came out in 2010.
20 And I think it was within a couple of 21 weeks of the 2010 NRC number. Does that seem right to 22 you, Mr. Lighty, that they were contemporary 23 estimates?
24 MR. LIGHTY: Yes, Your Honor, they do 25 appear to be dated within a, in a similar time frame.
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114 1 In 2010.
2 JUDGE ARNOLD: Okay. Well let me ask you 3 this. In performing the 2015 flood hazard 4 reevaluation report, were the people that performed 5 that evaluation aware of the generic dam failure 6 frequency that had come out earlier?
7 MR. LIGHTY: I'm not sure about that, Your 8 Honor, but I would note that the FHRR and the analysis 9 performed for the CAL were deterministic analyses 10 rather than probabilistic analyses. So I would assume 11 that they were at least aware of it, but I don't know 12 off the top of my head.
13 JUDGE ARNOLD: Okay. This is a question 14 for Petitioners. On Page 17, okay, on Page 17 of 15 Duke's reply to your petition Duke states the 2.8e 16 minus four dam failure frequency used by Mr. Mittman 17 is an estimated generic dam failure rate for large 18 rock dams.
19 And their reference to that statement was 20 the 2010 memorandum for Mr. Mittman. So would you 21 disagree with that characterization that it is an 22 estimated generic dam failure rate?
23 MS. CURRAN: No.
24 JUDGE ARNOLD: Okay. And then, let's see.
25 Also on Page 17 of Duke's answer they quote an NRC NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
115 1 information notice to support their assertion that 2 generic values are typically used as bounding values 3 of dam failure rates. Would you disagree with that 4 characterization?
5 MS. CURRAN: The answer is, sometimes 6 they're used for bounding and sometimes it's the best 7 information that's available.
8 JUDGE ARNOLD: Okay. In this case would 9 you consider it to be the best information available 10 in light of the probabilistic best estimate 11 calculation that Duke had their people perform?
12 MS. CURRAN: Judge Arnold, there is no 13 record that the NRC Staff has received that document.
14 It's not in the public record. So it's a document 15 that Duke has but there is no way to review it and 16 evaluate it.
17 JUDGE ARNOLD: Okay. Let me ask Mr.
18 Lighty. Is that correct that they, your dam failure 19 rate is not available to others?
20 MR. LIGHTY: In the context of the RAC 21 report that we cited in our answer pleading, we 22 pointed out the existence of that to contradict an 23 assertion from Mr. Mittman that no Jocassee specific 24 value was available or existed because it was 25 available in a document on the NRC's website that Mr.
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116 1 Mittman himself cited multiple times. So that was the 2 purpose for referencing that specific document from 3 2010.
4 JUDGE ARNOLD: Okay.
5 MS. CURRAN: Can I respond to that for 6 just a moment, Judge Arnold?
7 JUDGE ARNOLD: Yes.
8 MS. CURRAN: This document, we talked 9 about this, it's discussed in our reply. It's not 10 docketed by the NRC, it was released in a mess of 11 documents under FOIA.
12 Apparently the NRC had it, but if you look 13 at the document carefully it has the watermark, draft, 14 stamped on the pages. It's just, you can't tell, is 15 this supposed to be something people should rely on?
16 There is no cover letter to the NRC 17 saying, here's our document, this is final. It's very 18 difficult for us going through many, many documents 19 to, it really is unreasonable to expect us to even 20 figure out what this document is supposed to be.
21 JUDGE ARNOLD: Okay. Different subject.
22 On the top of Page 15 of the petition you state, they 23 fail to take into account additional significant 24 contributors to dam failure risks such as seismically 25 induced dam failure and dam overtopping.
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117 1 Is it your assertion that, to this date, 2 seismically induced failure and dam overtopping have 3 still not been considered?
4 MS. CURRAN: We can see no evidence they 5 have been considered in the environmental report, that 6 is correct. That is the subject, the environment 7 report, is the subject of this hearing request. It is 8 the draft of the supplemental GEIS that the NRC Staff 9 will be preparing.
10 Under 10 CFR 2.309, this is the focus of 11 our hearing request. So if we don't see it in the 12 environmental report, we don't have to go looking for 13 it elsewhere. That's the document that we're supposed 14 to be evaluating.
15 JUDGE ARNOLD: Hm. And if I understood 16 correctly, the answers to Judge Trikouros's question, 17 all that we've seen so far is a couple of references 18 saying that they've been considered and they're 19 insignificant. Is that how you understand it, Mr.
20 Lighty?
21 MR. LIGHTY: Your Honor, the consideration 22 of seismic and overtopping event was discussed in the 23 2015 FHRR. So it has been considered by Duke. It's 24 not an issue that has been ignored by anyone.
25 JUDGE ARNOLD: Okay.
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118 1 MR. LIGHTY: And just to respond to Ms.
2 Curran, it is not due to position that she is being 3 faulted for not disputing any PRA information that is 4 not otherwise presented in the environmental report.
5 And that was very clear in our answer pleading.
6 Everything that is required by Part 51 to 7 (audio interference) --
8 CHAIRMAN BOLLWERK: We had gone off again.
9 There you go. Nope. You said, everything was 10 required by Part 51, that was the last I heard.
11 MR. LIGHTY: Everything that was required 12 by Part 51 is presented in the environmental report 13 itself. We stated that in our answer pleading. That 14 is still our position. Information required by Part 15 51 is in the ER.
16 MS. CURRAN: May I make a comment?
17 JUDGE ARNOLD: Yes, you may.
18 MS. CURRAN: It just seems to us that Duke 19 is trying to have it both ways. The way we read the 20 environmental report it said, we've done some updates 21 to our PRA and we find they don't change the analyses 22 that we did in 1998 to any significant degree.
23 And we had some information about what was 24 done in 1998. A lot more than was given in the 2021 25 analysis, so we looked at that.
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119 1 And now they're saying, wow, you really 2 should have looked at all this other stuff we did. We 3 did a PRA, the Fukushima work. And it's not mentioned 4 there.
5 So, you can't say, things are pretty much 6 the way they were in 1998, but the intervener, the 7 petitioners can't challenge. That's, we're way in the 8 history, way in the past, evaluating the 1998 analysis 9 when there is actually nothing new that's been 10 presented in the environmental report, except for some 11 vague statements.
12 JUDGE ARNOLD: Okay. Briefly, most of my 13 questions have been addressed already so I'm done with 14 my questions.
15 CHAIRMAN BOLLWERK: All right, thank you, 16 Judge Arnold. Let me go back to Judge Trikouros a 17 second. Anything else that you want to talk about 18 this afternoon, Judge Trikouros?
19 Anything about SAMA, I know that's one of 20 your interests, your areas of interests.
21 JUDGE TRIKOUROS: I would ask the, would 22 ask one question. Was seismic, was the probability of 23 dam failure a sensitivity evaluation that was done in 24 the original SAMA analysis?
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120 1 they did a rather extensive sensitivity study, I 2 wasn't sure exactly whether or not they considered 3 Jocassee Dam failure a probability as a parameter.
4 Mr. Lighty would be the most likely to answer that, 5 but the Staff might have an idea.
6 MR. LIGHTY: Unfortunately, Your Honor, I 7 don't know the answer to that, we would have to review 8 the 1998 analysis.
9 JUDGE TRIKOUROS: Okay. So let me ask a 10 related, or a sort of related question. With all of 11 these modifications that have been made to the plant, 12 most of which are pretty significant changes to divert 13 flooding away from the site. Is there any requirement 14 or any plan to reevaluate the inundation?
15 To redo the inundation analysis to see 16 what the results would be at this point? It's 17 certainly going to be a lot lower, it's just not clear 18 what.
19 MR. LIGHTY: Your Honor, I'm not aware of 20 any plans to redo the evaluation. I think the 21 reasoning being is that the evaluation is now 22 conservative based on additional actions that have 23 been taken.
24 JUDGE TRIKOUROS: Right. Is the Staff 25 aware of any need to redo the inundation analysis to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
121 1 take into account all these modifications?
2 And I'm specifically referring to the one 3 that was done in the 2011 safety evaluation which was 4 a very conservative one that arrived at a 19.5 foot.
5 It's virtually certain that it would be lower than 6 that today but we have no idea what. So that's for 7 the Staff.
8 MS. WOOD: Thanks for that question.
9 JUDGE TRIKOUROS: Yes.
10 MS. WOOD: Thank you for that question, 11 Your Honor. There is no plan at this point.
12 But if I may, to go back to a previous 13 point that was made about the availability of a 14 document. I don't have that FOIA document available 15 in front of me but I believe the letter that is 16 referenced, it's called Oconee flood protection and 17 the Jocassee Dam hazard basis for allowing NRC 18 continued operations. There's an ML number. It's 19 ML090570117.
20 Again, I don't want to introduce a new 21 document into the record, but just go back to, I 22 believe that is the document that was referenced in 23 that FOIA request. Because in it, it does state the 24 information about the Staff's best estimate of the 25 mean failure rate is approximately two times ten to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
122 1 the negative four per year with a 90 percent credible 2 interval.
3 Again, I don't want to introduce another 4 document into the record, but that was a publicly 5 available. And I remember that, I think it's the 6 document that's referenced in the FOIA.
7 JUDGE TRIKOUROS: Thank you.
8 MS. CURRAN: Judge Trikouros, this is 9 Diane Curran, can I make a comment in response to one 10 of your questions?
11 JUDGE TRIKOUROS: Yes. Yes.
12 MS. CURRAN: You were asking before about, 13 what had been done to study potential reductions in 14 flood heights that were achieved by modifications to 15 the plant. Petitioners want to make it clear, our 16 view, our sense of this record is that any lower flood 17 heights at Oconee are not due to modifications, 18 they're due to less conservative analysis of dam 19 breach.
20 And that leads to longer times for dam 21 failure and lower flood heights. So that's what 22 happened, is the analysis is different.
23 The flood heights are lower because the 24 analysis changed, not because Duke took all these 25 steps to address it. That's the issue here.
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123 1 JUDGE TRIKOUROS: Well, what I was trying 2 to get at was that the, if the modifications were 3 based on the 2015 FHRR, then the numbers that came out 4 of that analysis reflect the modifications. And it 5 would be useful, I think, to some extent to see what 6 would have happened if you re-analyzed the safety 7 evaluation analysis with these modifications included.
8 Because the 19.5 number didn't include 9 those modifications. And from the documents I've 10 seen, those modifications were pretty extensive to 11 diverting water away from the site.
12 MS. CURRAN: That may be the case, but we 13 have, in the PRA, that document was the draft summary 14 document that was in that released FOIA document that 15 said, that there is a significant risk still that the 16 SSF walls will be overtopped. And if that happens, 17 that we're talking about a core damage accident.
18 We're talking about three reactors with a core damage 19 accident. It's very, very serious.
20 And it's not, the big issue here is, to 21 what degree has Duke actually mitigated potentially 22 very serious environment impacts. I'm looking at, 23 okay, in this document, which is the, it's called 24 initial hazard curve for flooding at the safe shutdown 25 facility at Oconee Nuclear Station resulting from a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
124 1 random failure of Jocassee Dam.
2 The primary author is David S. Bowles, B-3 O-W-L-E-S. And the date is February 28th, 2010.
4 If I turn to Page 21 it says, this is 5 written in 2010, right. All (audio interference) dam 6 failure cases are as estimated to result in 7 overtopping of the SSF wall. And these cases account 8 for 92 percent of the estimated total probability for 9 failure for the base run, per year of 2.6e to the 10 minus six per year.
11 This is a very significant statement. We 12 don't have any kind of assurance from Duke now that 13 the likelihood of the SSF being flooded has been 14 reduced to an insignificant level.
15 MR. LIGHTY: Your Honor, if I may briefly 16 respond. That's exactly what the 2015 FHRR shows is 17 that the SSF wall will not be overtopped.
18 Remember this 2010 RAC report is from 19 2010. At the early end of these analyses, prior to 20 the FHRR. And certainly prior to the physical 21 modifications that have been made at the site.
22 MS. CURRAN: But this all depends on the 23 analysis of how fast the flood is going to develop and 24 the size of the flood and it's still, you know, I 25 don't think that Duke has really satisfied the NEPA NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
125 1 standard here for a hard look with a post-Fukushima 2 document that isn't even part of the, not being 3 offered as part of the environmental report. And as 4 Mr. Lighty says, uses a different analytical method 5 than PRA. It just, it needs a hard look, this issue.
6 MR. LIGHTY: Your Honor, just very 7 briefly. Ms. Curran's main complaint is that the 2015 8 FHRR uses less conservative analysis than the 2011 9 safety evaluation. And that is correct. That's 10 exactly how the NRC characterized it.
11 But the 2011 safety evaluation is a 12 bounding evaluation that NEPA does not require. We've 13 spent hours talking about current licensing basis 14 safety issues without focusing on this very important 15 core NEPA concept that NEPA doesn't require analysis 16 of bounding accident scenarios. It's a very well 17 settled principle of law that undercuts Petitioner's 18 entire claim here related to the 2011 safety 19 evaluation.
20 JUDGE TRIKOUROS: Ms. Curran, did you want 21 to say anything about that?
22 MS. CURRAN: Give me one minute please.
23 JUDGE ARNOLD: Judge Bollwerk, it seems to 24 me our questions have been answered and this has 25 devolved into a free for all between the parties.
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126 1 Maybe we should consider wrapping it up.
2 (Pause.)
3 JUDGE TRIKOUROS: Well, let me say, while 4 Judge Bollwerk is thinking about that, I'm finding 5 some of these interactions useful. But I agree, it's 6 not something I want to allow to go on indefinitely, 7 but some of these interactions have been useful I 8 think.
9 JUDGE ARNOLD: Judge Bollwerk?
10 JUDGE TRIKOUROS: Hello?
11 JUDGE ARNOLD: When you speak we're not 12 hearing you.
13 JUDGE TRIKOUROS: Hello?
14 JUDGE ARNOLD: I hear you, Nick, I'm not 15 hearing Judge Bollwerk.
16 JUDGE TRIKOUROS: I don't either.
17 CHAIRMAN BOLLWERK: Can you hear me now?
18 JUDGE ARNOLD: Okay.
19 JUDGE TRIKOUROS: Yes.
20 CHAIRMAN BOLLWERK: Okay, great.
21 JUDGE TRIKOUROS: Did you hear what we had 22 said?
23 CHAIRMAN BOLLWERK: Yes, I did. So --
24 JUDGE TRIKOUROS: Okay.
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127 1 wanted to make one more comment?
2 MS. CURRAN: Yes, thank you. Just one 3 moment, please.
4 (Pause.)
5 MS. CURRAN: The 2011 safety evaluation is 6 conservative. It is more conservative than the 2016 7 FHRR analysis. But it is not bounding. There were 8 more conservative parameters that were not picked by 9 the NRC, period. Thank you.
10 CHAIRMAN BOLLWERK: All right. All right.
11 JUDGE TRIKOUROS: Can I just say one 12 thing?
13 CHAIRMAN BOLLWERK: Yes.
14 JUDGE TRIKOUROS: We left this, we're sort 15 of leaving this in a bad place. Let me just point 16 out, and it really was also a question I had.
17 The procedures at Oconee require that if 18 the safe shutdown facility wall is overtopped and that 19 system, that backup system fails, that they would 20 implement then the mitigating features of the, what we 21 call the FLEX system. And I don't know what is 22 proprietary in all of this, and at this point I'm not 23 going to, I think I'm not going to say anything 24 proprietary.
25 But that FLEX system is capable of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
128 1 preventing a core melt for levels of flood that are 2 significantly higher than would take out the safe 3 shutdown facility. I don't know what those numbers 4 are. Those numbers are not in any of the material on 5 the record.
6 But I was going to ask if the FLEX system 7 could handle 19.5 feet, a 19.5 foot flood? I don't 8 know if anyone knows the answer to that question but 9 I was going to ask it.
10 Mr. Lighty, are you aware of how capable 11 that FLEX strategy would be?
12 MR. LIGHTY: I believe so, Your Honor.
13 And the NRC considered that in the FHRR analysis in 14 2016 looking at the additional assurance above the 15 FHRR report. And it discussed things like deploying 16 a backup method of core cooling independent of the SSF 17 using portable equipment.
18 JUDGE TRIKOUROS: Did it refer to what 19 type of flood that it would be capable of mitigating?
20 MR. LIGHTY: I'll need to confer with our 21 staff please. Just a moment.
22 JUDGE TRIKOUROS: All right.
23 (Pause.)
24 MR. LIGHTY: Yes. Judge Trikouros, I did 25 confirm that the FLEX plan is designed for 19.5 feet.
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129 1 JUDGE TRIKOUROS: All right. And so, it 2 can handle that. In addition, the 19.5 feet is no 3 longer applicable because of the five or six 4 modifications that have been made. So there is some 5 conservatism as it seems.
6 MR. LIGHTY: I think that's a fair 7 characterization, Your Honor.
8 JUDGE TRIKOUROS: All right.
9 MS. CURRAN: Judge Trikouros, can I make 10 a comment?
11 JUDGE TRIKOUROS: Yes.
12 MS. CURRAN: I just want to remind 13 everyone that this goes back to the 2011 safety 14 evaluation was an adequate detection evaluation. And 15 the NRC has determined that portable equipment, like 16 FLEX equipment, cannot be used to satisfy the adequate 17 protection standard.
18 So I know that NEPA's reasonable standard 19 is not the same as the adequate protection standard, 20 but, it's a big but, the NRC relies on the adequate 21 protection decision making framework and regulatory 22 (audio interference) --
23 CHAIRMAN BOLLWERK: Mr. Curran, you cut 24 out.
25 MS. CURRAN: -- that the environmental NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
130 1 impacts of operating nuclear reactors are acceptable.
2 So if there is some safety issue that is 3 outstanding, like there is here, it can't be 4 backfilled with a non-safety FLEX solution. And that 5 can't, that just doesn't do it.
6 Unless you change the entire conceptual 7 basis of the license renewal GEIS and say, the Atomic 8 Energy Act really doesn't matter to us anymore. We're 9 not going to rely on the safety findings anymore.
10 We're going to take all the accidents and 11 we're going to subject them to our, whatever some new 12 analytical method is, the probabilistic method, and 13 we're going to look at these accidents from a 14 probabilistic standpoint. And then it's going to be 15 fair game for all the interveners to talk about that.
16 As long as the NRC wants to protect these 17 Atomic Energy Act decisions from challenge in a 18 license renewal NEPA proceeding, like this one, they 19 have to do it right. They have to comply with the 20 process.
21 And here FLEX equipment can't be used to 22 substitute for adequate protection mergers, period.
23 And that's a NEPA issue because the GEIS makes it 24 relevant to NEPA. Because the NRC has decided that's 25 going to be a fundamental cornerstone of the NEPA NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
131 1 findings for license renewal. Thank you.
2 CHAIRMAN BOLLWERK: All right, thank you.
3 Ms. Woods, we haven't heard anything from you 4 recently. I'm going to give you one last chance if 5 you have anything you want to say on any of the 6 subjects we've been dealing with the last ten or 15 7 minutes.
8 MS. WOOD: Thank you, Your Honor. Just 9 like a last closing note. While the Petitioner's 10 arguments, and we spent a great deal of time 11 discussing them at lengths, go to the current 12 operating condition of the site, which are necessarily 13 outside the scope of a license renewal proceeding, I 14 really would just like to state again that there is no 15 adequate protection issues at Oconee, as can be seen 16 by the at least ten years worth of extension of 17 engagement that we've had, NRC Staff has had with Duke 18 on the flood hazards considerations. Including the 19 potential threat at Jocassee Dam.
20 These issues are squarely covered and 21 addressed under the NRC's ongoing regulatory 22 oversight.
23 And also that as has been shown here, the 24 Petitioners have not shown that the SAMA analysis that 25 was done by the licensee is unreasonable under NEPA.
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132 1 Which has been actually the source of the contention 2 asserted here. Thank you, Your Honor.
3 CHAIRMAN BOLLWERK: All right, thank you.
4 Let me just turn to the Board. Judge Trikouros, 5 anything further you have?
6 JUDGE TRIKOUROS: No, I think that's it.
7 CHAIRMAN BOLLWERK: All right. Judge 8 Arnold?
9 JUDGE ARNOLD: Nothing for me.
10 CHAIRMAN BOLLWERK: All right, thank you.
11 Well, at this point, let me deal with one subject 12 here. There were several things that were mentioned 13 about supplementing the record. Let's leave it this 14 way. If the Board needs any record supplementation 15 we'll let the parties known. And we'll set a schedule 16 for the filings. So that's something we can discuss 17 amongst ourselves.
18 I know there was questions about design 19 basis, about the, question of a document dealing with 20 seismic and overtopping. But let the Board, we'll 21 discuss that, and if we want to have any further 22 submissions we'll let you know and set up a filing 23 schedule for that, all right? Okay.
24 At this point then I think we've concluded 25 the essential pre-hearing conference and the oral NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
133 1 argument on Petitioner's two NEPA associated dam 2 failure impact contentions. We very much appreciate 3 the presentations by the participant's Counsel, the 4 information they provided in response to the Board 5 questions.
6 As Judge Trikouros mentioned, I as well 7 found them providing some interesting and useful 8 information, so we appreciate the efforts you put in 9 preparing for the argument and your presentations 10 today.
11 And before adjourning I wanted to take a 12 moment to thank those on the licensing board panel 13 staff who made it possible for us to conduct this 14 virtual argument. And we are, as always, indebted to 15 Andy Welkie of the panel's information technology 16 staff who organized this Webex conference.
17 With the very valuable assistance of our 18 two law clerks, Brooke Taylor and Allison Wood.
19 Thanks as well to our administrative assistant, Twana 20 Ellis, for her assistance in issuing the various 21 notices and orders that provided the participation and 22 members of the public with information about this 23 conference.
24 And with a reminder to Counsel to remain 25 online to assist the court reporter with any NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
134 1 questions, we will stand adjourned. Again, thank you 2 very much.
3 (Whereupon, the above-entitled matter went 4 off the record at 4:36 p.m.)
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