ML24150A182
| ML24150A182 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 05/29/2024 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| RAS 57032, 50-275-LR-2, 50-323-LR-2, NRC-2831 | |
| Download: ML24150A182 (0) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Diablo Canyon Nuclear Power Plant Units 1 and 2 License Renewal Docket Number:
50-275-LR-2 and 50-323-LR-2 Location:
Rockville, Maryland Date:
Wednesday, May 22, 2024 Work Order No.:
NRC-2831 Pages 1-153 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1716 14th Street, N.W.
Washington, D.C. 20009 (202) 234-4433
1 UNITED STATES OF AMERICA 1
NUCLEAR REGULATORY COMMISSION 2
+ + + + +
3 ATOMIC SAFETY AND LICENSING BOARD PANEL 4
+ + + + +
5 ORAL ARGUMENT 6
x 7
In the Matter of: : Docket Nos.
8 DIABLO CANYON NUCLEAR : 50-275-LR-2 9
POWER PLANT, UNITS 1 AND 2 : 50-323-LR-2 10 11 (License Renewal) :
12
x 13 Wednesday, May 22, 2024 14 Rockville, Maryland 15 16 17 BEFORE:
18 JEREMY A. MERCER, Chair 19 GARY S. ARNOLD, Administrative Judge 20 NICHOLAS J. TRIKOUROS, Administrative Judge 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
2 APPEARANCES:
1 On Behalf of Petitioners San Luis Obispo Mothers 2
for Peace, Friends of the Earth, and Environmental 3
Working Group:
4 DIANE CURRAN, ESQ.
5 of:
San Luis Obispo Mothers for Peace 6
P.O. Box 3608 7
San Luis Obispo, CA 93403 8
(805) 773-3881 9
dcurran@harmoncurran.com 10 11 CAROLINE LEARY, ESQ.
12 of:
Environmental Working Group 13 1250 I Street, Northwest 14 Suite 1000 15 Washington, DC 20005 16 202-667-6982 17 cleary@ewg.org 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
3 On Behalf of the Applicant Pacific Gas and 1
Electric Company:
2 RYAN LIGHTY, ESQ.
3 TIMOTHY MATTHEWS, ESQ.
4 of:
Morgan Lewis and Bockius, LLP 5
1111 Pennsylvania Avenue, Northwest 6
Washington, DC 20004 7
(202) 739-5274 (Lighty) 8 ryan.lighty@morganlewis.com 9
10 On Behalf of the Nuclear Regulatory Commission:
11 JEREMY WACHUTKA, ESQ.
12 IAN MURPHY, ESQ.
13 of:
Office of the General Counsel 14 Mail Stop - O-14-A44 15 U.S. Nuclear Regulatory Commission 16 Washington, D.C. 20555-0001 17 301-287-9188 (Wachutka) 18 jeremy.wachutka@nrc.gov 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 P-R-O-C-E-E-D-I-N-G-S 1
(1:00 p.m.)
2 JUDGE MERCER: We now are on the record.
3 Good afternoon, counsel. Good afternoon, 4
experts, and good afternoon to those of you here in 5
the panel's hearing room in Rockville, Maryland.
6 Also, a welcome to those who are joining 7
us via the listen-only telephone line, or the webcast.
8 I remind those of you attending in person, 9
please ensure your cell phones, tablets, computers, 10 electronic devices, whatever else you may have, are 11 put on silent or airplane mode.
12 Today we are hearing oral argument in the 13 license renewal proceedings for Diablo Canyon Nuclear 14 Power Plant, Units 1 and 2, Docket Numbers 50-275-LR-15 2, and 50-323-LR-2.
16 My name is Jeremy Mercer. As an attorney 17 I am a legal judge, and I have the privilege of 18 serving as the chair of this board.
19 To my right is Judge Nicholas Trikouros, 20 a technical judge and engineer with more than 30 years 21 of experience in the nuclear industry.
22 To my left is Judge Gary Arnold, a 23 technical judge and Ph.D. in nuclear engineering, also 24 with more than 30 years of experience in the nuclear 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
5 industry.
1 We also have David Owens, our court 2
reporter who will be making a transcript of today's 3
argument.
4 That transcript will be available on the 5
docket when it is completed.
6 As I noted earlier, we have provided a 7
public listen-only telephone line, and a webcast of 8
the oral argument.
9 For those attending by way of the 10 telephone line, please note that it is just a listen-11 only telephone line.
12 Any request to raise a hand will not be 13 seen, and will not be honored.
14 The same holds true for those viewing the 15 webcast. Just as those who are attending in person 16 here, the public can listen to the argument, but 17 cannot participate.
18 Any member of the public who does attempt 19 to interrupt or otherwise disrupt the oral argument, 20 will be removed from the hearing room.
21 Now before we begin the argument, a brief 22 explanation for why we're here today.
23 Pacific Gas & Electric, or PG&E, has 24 submitted a license renewal application, or LRA, to 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
6 continue operating Units 2 and 3 at the Diablo Canyon 1
Nuclear Power Plant in Avila Beach, California, for 2
another 20 years after their current license 3
expiration dates of November 2, 2024, and November 26, 4
2025, respectively.
5 The Atomic Energy Act and the Nuclear 6
Regulatory Commission's Regulations, provide an 7
opportunity for interested stakeholders, which include 8
members of the public, public interest groups and 9
organizations, and other government entities, to seek 10 a hearing to challenge renewal of a nuclear operating 11 license.
12 The essence of such a hearing is to 13 adjudicate health and safety, environmental, and 14 common defense and security concerns raised by the 15 license renewal application.
16 But before such a hearing occurs, the 17 interested stakeholder must establish that they have 18 standing to challenge the license renewal application.
19 And that they've included in their 20 petition an admissible contention, which means 21 essentially that the stakeholder has identified 22 something material that is incorrect in the license 23 renewal application.
24 Or something material that should be in 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
7 the LRA, but is not.
1 The oral argument today will address these 2
two things.
3 Three non-profit groups have filed a Joint 4
Petition to Intervene and Oppose PG&E's application.
5 San Luis Obispo Mothers for Peace, who I will refer to 6
as Mothers for Peace; Friends of the Earth, who I will 7
refer to as Friends; and, Environmental Working Group, 8
who I will refer to as Group.
9 Collectively we will refer to them as 10 petitioners, jointly raised three contentions 11 challenging certain aspects of PG&E's license renewal 12 application.
13 We'll get into the specifics of each 14 contention later in the oral argument.
15 We do note that the California Energy 16 Commission has filed a request to participate in this 17 proceeding as a party.
18 But as a non-party, it did not submit any 19 proposed contentions.
20 One thing that we would like to stress is 21 that the board does not work for or with, the Nuclear 22 Regulatory Commission staff in reviewing license 23 renewal applications.
24 This board is charged with determining 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
8 independently whether petitioners have standing, and 1
whether the contentions they have submitted are 2
admissible.
3 Before we turn to questions on standing 4
and contention admissibility, I'm going to ask counsel 5
to introduce themselves, any co-counsel, and their 6
clients.
7 As this is being broadcast by way of 8
listen-only phone line and webcast, I ask that counsel 9
remain seated and use the microphone so that you can 10 be picked up.
11 Counsel for petitioners, would you please 12 identify yourself and your co-counsel, and your 13 clients?
14 MS. CURRAN: Good afternoon, my name is 15 Diane Curran. I representative San Luis Obispo 16 Mothers for Peace, and I will be speaking on behalf of 17 the three petitioners, Friends of the
- Earth, 18 Environmental Working Group, and Mothers for Peace.
19 With me today at counsel table to my left 20 is Caroline Leary, who is general counsel to 21 Environmental Working Group.
22 I just want to mention to the board that 23 Ms. Leary has to leave at quarter the 3:00, and so 24 she'll bow out but I'll be the one doing the talking 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
9 so it shouldn't affect anything.
1 To my right is Dr. Peter Bird, our seismic 2
expert. And directly behind me is Dr. Digby 3
Macdonald, who when we get to Contention 2, Dr.
4 Macdonald will come up and sit next to me.
5 JUDGE MERCER: You'll be playing musical 6
chairs.
7 MS. CURRAN: We'll be playing musical 8
chairs.
9 And he is going to be assisted by his 10 wife, she's also a scientist, but not on this case.
11 And her name is Mirna Urquibi-Macdonald.
12 JUDGE MERCER: All right.
13 MS. CURRAN: Thank you.
14 JUDGE MERCER: Thank you.
15 And counsel for PG&E, please introduce 16 yourself, co-counsel, and your client.
17 MR. LIGHTY: Thank you, Your Honor.
18 Ryan Lighty, with Morgan Lewis & Bockius, 19 appearing on behalf of Pacific Gas & Electric Company.
20 Joining me at counsel table today is my 21 partner, Timothy Matthews, also with Morgan Lewis.
22 And behind us in the gallery are 23 individuals from Pacific Gas & Electric Company, 24 Maureen Zawalick, Tom Jones, Jeff Bachhuber, Jennifer 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
10 Post, Philippe Soenen, and Jearl Strickland, as well 1
as Brian Hall from Westinghouse.
2 JUDGE MERCER: All right, thank you, 3
counsel.
4 Counsel for staff, please introduce 5
yourself, any co-counsel, and your client.
6 MR. MURPHY: Good afternoon, Your Honor.
7 This is Jeremy Wachutka, counsel for the NRC staff.
8 I'm joined by co-counsel Ian Murphy.
9 And in the audience are various staff 10 members including Brian Harris, Kim Conway, On Yee, 11 Jeffrey Rikhoff, and a couple others, Your Honor.
12 JUDGE MERCER: All right, thank you very 13 much.
14 As we now move into the argument portion 15 of today's proceedings, please I would like to let all 16 counsel and clients, and client representatives, know 17 the board has in fact, read all of the pleadings that 18 have been submitted.
19 We are prepared to ask questions to ensure 20 that we have a fulsome grasp of the arguments that are 21 being advanced by each participant, so that we can 22 make an appropriate decision on standing and 23 contention admissibility.
24 We do not intend this to take the form of 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
11 an appellate argument where each side gets a certain 1
allotted amount of time.
2 Instead, we plan to ask questions of 3
various counsel on specific issues as we go through 4
each of the contentions.
5 We do plan to provide time at the end of 6
each contention, for counsel to address any particular 7
issues they believe need to be addressed, that we have 8
not covered in the questioning.
9 But please know we also intend to provide 10 5 minutes to each counsel at the end of the argument, 11 for a closing or summary argument.
12 We also will, as we will start with 13 counsel for applicant, or I'm sorry, counsel for 14 petitioners, we will provide you with some rebuttal 15 time as well, after PG&E and the staff counsel have 16 provided their summary.
17 As I noted earlier, the purpose of the 18 oral argument is to address whether petitioners have 19 standing, and whether they have included in the 20 petition at least one admissible contention.
21 We turn now to the question of standing.
22 The board has an independent obligation to 23 ensure that at least one petitioner has standing. The 24 three petitioners here as we understand it, all are 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
12 organizations seeking to establish representational 1
standing.
2 Is that correct, Ms. Curran?
3 MS. CURRAN: Yes.
4 JUDGE MERCER: Now, Mr. Wachutka, we 5
understand the staff does not oppose standing of any 6
three of the petitioners.
7 Is that a correct understanding?
8 MR. WACHUTKA: That's correct, Your Honor, 9
and Ian Murphy will be discussing standing in 10 Contention 3 for the NRC staff.
11 JUDGE MERCER: All right, thank you, Mr.
12 Murphy.
13 MR. MURPHY: Sure.
14 JUDGE MERCER: Mr. Lighty, as we understand 15 it, PG&E does not oppose standing of Mothers for Peace 16 or Friends, but does oppose the standing of Group.
17 Both representational standing as well as 18 its request in the alternative, for discretionary 19 intervention.
20 Is that correct?
21 MR. LIGHTY: Yes, that's correct, Your 22 Honor.
23 JUDGE MERCER: Okay.
24 We have received and reviewed the 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
13 submissions and believe that there are three areas of 1
significance as it relates to standing that we would 2
like to address, two of which we have flagged for 3
everyone in our Order scheduling oral argument.
4 The first of those is the issue of 5
membership. As you all know, Group noted on page 5 of 6
its
- petition, that it is not a
membership 7
organization, but that it does represent the interests 8
of its supporters.
9 Group also contends in its submission, 10 that it satisfies the representational standing set 11 forth in the United States Supreme Court decision, 12 Students for Fair Admissions, Inc. versus President 13 and Fellows of Harvard College.
14 Ms. Curran, in reading that case though, 15 it seems to me that the organization before the 16 Supreme Court there was one with members, who 17 specifically were identified.
18 Meaning that if that case is going to be 19 of any help, it's going to be by way of application of 20 the Hunt case, described by the Supreme Court.
21 Is that your understanding as well?
22 MS. CURRAN: We think that the Hunt case 23 was decided in the '70s and the students' case 24 basically clarified that what is meant by member or 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
14 supporter, they're kind of interchangeable terms.
1 And there's some basic indicia. One is, 2
does the member on who's standing, on who's standing 3
the group standing is based, support the group 4
financially.
5 Does the group have purpose that relates 6
to the interest of this member or supporter?
7 Does the group communicate with the member 8
or supporter; let them know what they're doing?
9 And, does the member or supporter have a 10 reasonable chance to affect what the group does?
11 And we've demonstrated that's true for 12 Environmental Group -- Working Group. I think it was 13 true for the student organization.
14 So what I think the Supreme Court was 15 saying there was, you don't have to have a membership 16 organization in the traditional sense where you vote 17 the board of directors in and out, and that's how you 18 control the outcome of what, of the decisions the 19 organization makes.
20 There is other ways to provide input to 21 affect the direction of the organization.
22 JUDGE MERCER: Okay.
23 And I agree with you, the Supreme Court in 24 the Hunt case essentially boiled down its analysis to 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
15 indicia of membership.
1 And there, it identified three of those 2
specifically. That all of the growers and dealers in 3
Hunt did three things.
4 One, they elected the members to the 5
commission.
6 Two, they financed the commission's 7
activities.
8 And three, they were the only ones who 9
served on the commission.
10 Knowing or hearing that you've identified 11 a couple others, I'm more comfortable looking 12 specifically at the three that the Supreme Court 13 identified.
14 And I didn't see those particular indicia 15 identified in the petition, or in Mr. Cook's 16 declaration.
17 And I'm wondering where those three 18 indicia might be identified, specifically as it 19 relates to the members, or the growers and dealers 20 alone, supporting the financial activities of the 21 organization.
22 Here in the reply, it seems as though only 23 61 percent of the organization's finances come from 24 its supporters.
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
16 So there would be financial support coming 1
from somebody other than the supporters.
2 So I'm just wondering if you can help me, 3
or point to me, where we can find evidence or facts to 4
support that indicia for Environmental Working Group?
5 (Pause.)
6 MS. CURRAN: Well, in our reply at page 3, 7
we state that Linda Parks, who is one of the 8
supporters who has authorized EWG to represent her, is 9
one of EWG's financial supporters.
10 Now, the fact that EWG gets support from 11 other sources doesn't, I think the important thing is 12 that the majority of their support comes from 13 supporters like Ms. Parks.
14 JUDGE MERCER: Okay.
15 MS.
CURRAN:
And then in terms of 16 communication, I think it's described in Mr. Cook's 17 declaration that EWG communicates regularly with its 18 supporters.
19 And let me just find the exact statement.
20 (Pause.)
21 MS. CURRAN: In paragraph 3 he says, they 22 send out, EWG sends out monthly emails, uses the 23 emails to keep their supporters informed of the status 24 of legal proceedings in which their interests are 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
17 represented.
1 (Pause.)
2 MS. CURRAN: And in the hearing request, it 3
represents the interest of its members. And the 4
members who, the other members who wrote stated that 5
they asked EWG -- for instance in paragraph 1 of 6
Patricia Coleman's declaration.
7 EWG regularly asks about supporters' 8
concerns and opinions, in order to guide it in 9
establishing organizational goals.
10 I am pleased with EWG's work and believe 11 EWG generally represents my interests and concerns.
12 And, I think that's the same statement in 13 each of the EWG members or supporters' declarations.
14 JUDGE MERCER: Okay.
15 MS. CURRAN: And did you have another 16 factor that you wanted to?
17 JUDGE MERCER: I was just looking at the 18 three factors that were identified by the Supreme 19 Court in the Harvard case.
20 Does counsel for PG&E wish to weigh in at 21 all on that particular issue?
22 MR. LIGHTY: Yes, Your Honor.
23 I think what we just heard is that the 24 first mention of any of EWG's supporters being a 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
18 financial supporter, came in the reply pleading.
1 As the commission has noted recently in 2
CLI20-7, quote, our precedent explains it is not 3
acceptable in NRC practice for a petitioner to claim 4
standing based on vague assertions.
5 And when that fails, to attempt to repair 6
the defective pleading with fresh details at a later 7
juncture.
8 And that's exactly what EWG has done here, 9
by trying to supply information regarding the indicia 10 of membership in its reply pleading.
11 And so for that reason, we think that's 12 improper as a matter of law.
13 JUDGE MERCER: Counsel for the staff, I 14 know you haven't opposed the Environmental Working 15 Group's standing, but I wanted to offer the 16 opportunity for you to weigh in, if you so choose.
17 MR. MURPHY: Yes, Your Honor.
18 In terms of the Hunts three factors which 19 you've identified, I think the only additional thing 20 to note.
21 So NRC staff agrees with the position 22 taken by the petitioners. And I would point out that 23 in terms of the financial support factor, Hunt didn't 24 establish a set number, or a set amount to financing 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
19 that has to be provided by its members or supporters.
1 And so, I think that's an important factor 2
here.
3 It is a good point that PG&E makes that 4
they didn't provide financial information in that 5
additional declaration.
6 However, just looking to the Students for 7
Fair Admissions case in general, and looking at the 8
facts and the structure of that organization.
9 There's a lot of analogies that I think 10 you can draw between the two organizations, Group and 11 also Students for Fair Admissions.
12 And so, in that case, just refresh the 13 memory so the four members being represented were four 14 high school students who had been denied admission.
15 They had filed declarations stating they 16 had voluntarily joined the organization. Here we have 17 declarations from supporters stating they support 18 Group.
19 They supported its mission, which we also 20 have here.
21 They received updates about the status of 22 the case from the organization's president, which we 23 also have here.
24 And also, they had an opportunity for 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
20 input and direction on the organization's case, and 1
were being represented in good faith.
2 And so, just drawing the two, comparing 3
the two organizations, that's where the staff sees a 4
lot of similarities.
5 And so, for that reason, that's why the 6
staff agrees with the petitioner's position.
7 JUDGE MERCER: All right, thank you.
8 MR. LIGHTY: And, Your Honor, if we could 9
briefly go back to the germaneness element. I'm not 10 sure if you were going to speak to that separately, or 11 if you wanted to talk about that now?
12 JUDGE MERCER: That was going to be the 13 next element.
14 MR. LIGHTY: Okay, very good. Thank you.
15 MS. CURRAN: Before we go back, I'm sorry 16 to interrupt but I just want to finish on this 17 question of whether we added some, a significant 18 amount of information on our reply and shouldn't have 19 done that.
20 JUDGE MERCER: Sure, I was actually, that 21 was the next thing on my list to come back to you.
22 MS. CURRAN: Oh, okay.
23 JUDGE MERCER: To ask about that.
24 Because as I understand some Commission 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
21 precedent in the Georgia Tech research reactor case, 1
the Commission actually will allow for supplemental 2
declarations to be filed.
3 And what I was going to request, Ms.
4 Curran, is if you by Friday, May 31 of this year, have 5
a supplemental declaration submitted for Ms. Parks 6
that attests to her financial support for 7
Environmental Working Group, so that we have that in 8
the record, that would be appreciated.
9 MS. CURRAN: Will do, thank you.
10 JUDGE MERCER: Thanks.
11 Now, and I appreciate the case that you 12 cited, Mr. Lighty, and we'll take a look at that. I'm 13 not indicating any pre-judgment of this particular 14 issue.
15 But just so that we've got everything we 16 have, we need, or may need in front of us, we're 17 asking that that be submitted.
18 Now relatedly on this issue of 19 Environmental Working Group's standing, in our Order 20 scheduling oral argument, we had asked counsel to be 21 prepared to talk about a 1982 licensing board decision 22 that essentially equated supporters, or financial 23 supporters, with members.
24 And it seems as though based on the reply 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
22 and the representation of Ms. Curran, that there is in 1
fact, at least one of the declarants who is a 2
financial supporter.
3 Mr. Lighty, I'd like to turn to you and 4
give you the opportunity to address this particular 5
issue from PG&E's perspective.
6 Essentially, the rationale applied in that 7
1982 licensing board decision, which seems to be 8
fairly on point to the case that we have before us 9
today.
10 MR. LIGHTY: Sure, thank you, Your Honor.
11 So in LBP 82-25, the Indian Point case, 12 the board used essentially a three-pronged test to 13 determine whether a supporter could be the equivalent 14 of a member.
15 The first contention, or rather the first 16 condition was that the sponsors must have indicated a 17 desire to be represented by the organization.
18
- And, that condition appears to be 19 satisfied here. But the other two do not.
20 The second condition was the financial 21 support condition and as I mentioned, we think that 22 was untimely submitted. It was information that 23 should have been included in the petition.
24 I'm not certain about the Georgia Tech 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
23 research reactor case that you may be referring to.
1 It may be a licensing board decision that is rather 2
old.
3 And I would note again, CLI20-7 is a 4
Commission decision, fairly recent. And so, I would 5
encourage the Board to take a look at that.
6 But I think perhaps the most important of 7
the three conditions is the last one. And it provides 8
that a non-membership organization must have quote, a 9
well defined purpose which is germane to the 10 proceedings.
11 But that condition isn't satisfied here.
12 In Indian Point, the licensing board found the 13 condition was satisfied as to the Union of Concerned 14 Scientists, or UCS, because quote, the organizational 15 objectives of UCS in regard to nuclear power are 16 clearly defined and well advertised, end quote.
17 But the board contrasted that with the 18 circumstance in Health Research Group versus Kennedy, 19 in which public citizen did not satisfy the 20 germaneness condition.
21 And as the licensing board explained, 22 public citizen is an umbrella public interest group 23 that had wide-ranging objectives, allocated funding to 24 a diverse set of consumer advocacy interests.
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
24 And that's exactly the case here. We need 1
only look to the Group's website to see that it is far 2
more similar to public citizen, than to UCS.
3 The page titled Our Mission, mentions many 4
topics from sun screen to pesticides. It discusses 5
chemical safety and agricultural laws.
6 It provides links to a tap water database, 7
and a cosmetic database. But it does not even once 8
mention anything related to nuclear power.
9 Unlike UCS, its objective in regard to 10 nuclear power, is not well-defined.
11 And, if we look at another page on the 12 website titled Funding and Reports under the heading 13 of Where Your Donations Go, we can see that Group 14 devotes its funding to a diverse range of consumer 15 advocacy areas. From toxics to food, and agriculture.
16 Only 8 percent of its budget is devoted to 17 energy, and it is unclear what small fraction of that 18 may be devoted to nuclear power.
19 So in paragraph 2 of the standing 20 declaration of Group president Ken Cook, he admits 21 that EWG engages in policy advocacy on quote, a broad 22 range of issues.
23 And explains that EWG's work on energy 24 matters is focused on rate design, and access to 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
25 solar.
1 So at bottom, Group is an umbrella public 2
interest group, much more like public citizen. And, 3
it does not satisfy the third condition of the Indian 4
Point test.
5 And for that reason, we believe it doesn't 6
qualify for representational standing.
7 JUDGE MERCER: Okay, thank you.
8 Before we get to counsel for petitioner, 9
counsel for staff, would you care to address the issue 10 of the 1982 licensing board decision at all?
11 MR. MURPHY: Yes, Your Honor.
12 The staff's position is that despite 13 having a very broad purpose admittedly, Group, that 14 does not preclude Group from, from the purpose of 15 Group being germane to this proceeding.
16 That is all, Your Honor.
17 JUDGE MERCER: Okay, thank you.
18 Ms. Curran, would petitioners care to 19 respond to the arguments advanced by Mr. Lighty on 20 behalf of PG&E?
21 MS. CURRAN: I'd just like to refer the 22 board to Mr. Cook's declaration again, where he says 23 that in paragraph 2, EWG is a 501(c)(3) non-profit, 24 non-partisan organization that works to empower people 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
26 to live healthier lives in a healthier environment.
1 And then reading down a little bit it 2
says, EWG engages in research and policy advocacy on 3
a broad range of issues related to state and federal 4
energy policies, climate change, renewable energy, 5
toxic chemicals, food and agriculture, water and air 6
pollution, and public health.
7 Certainly, radioactive contamination 8
relates to public health. And chemical contamination, 9
this is a longstanding interest of Environmental 10 Working Group.
11 And, I just want to point out that the 12 cases that we found that reject hearing requests based 13 on a broad statement of purpose, the ones that we 14 looked at all related to an organization that sought 15 to represent its own interests, and not those of its 16 members.
17 And so, the Palisades case cited by PG&E 18 in opposing EWG's standing, talked about how far away 19 Palisades was from the City of Chicago, where this 20 organization had its headquarters.
21 And said, you just can't show us how this, 22 it was I think a license transfer case, how is that 23 going to affect this organization in Chicago.
24 JUDGE MERCER: Well, I think to be fair to 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
27 PG&E, they were citing that and correct me if I'm 1
wrong, they were citing that in response to what they 2
thought was Environmental Working Group seeking 3
organizational standing, or standing on its own 4
behalf.
5 Not necessarily addressing the germaneness 6
principle that we're talking about now.
7 MS. CURRAN: Yes.
8 JUDGE MERCER: Do you have anything further 9
10 (Simultaneous speaking.)
11 MS. CURRAN: Well, we did clarify that 12 though. The terminology is, we certainly did not 13 intend to assert that EWG had standing all on its own 14 without its supporters.
15 We attached declarations from the 16 supporters who authorized EWG to represent their 17 interests in the proceeding.
18 JUDGE MERCER: Sure, and all due deference 19 to our United States Supreme Court. They didn't make 20 things easier with their, some of their precedent that 21 kind of equates organizational and representational 22 standing as the same thing.
23 So, Mr. Lighty, I didn't want to step on 24 your toes there, but if there's anything else you want 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
28 to add?
1 MR. LIGHTY: Yes, just one final point, 2
Your Honor.
3 I think when we're looking at germaneness, 4
and we look at the cases that the petitioners have 5
cited, the SFFA and that case discussing the Hunt 6
case.
7 So SFFA was Students for Fair Admission.
8 It was an organization seeking to represent students 9
who were suing colleges over admissions policies.
10 And the Hunt case was, it involved a state 11 agency that represented apple growers, and was seeking 12 to represent apple growers in a case involving apple 13 growing.
14 Those two examples are directly on point 15 for germaneness. The organization is clearly aligned 16 with the individuals it's trying to represent.
17 The delta that the licensing board was 18 trying to point out in Indian Point in distinguishing 19 public
- citizen, was that it's an umbrella 20 organization.
21 It seeks to represent a whole bunch of 22 things. And it doesn't have a clearly defined 23 singular purpose like SFFA, or the Hunt case.
24 And I
think that's an important 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
29 distinction.
1 JUDGE MERCER: Thank you.
2 I think now we've addressed the first two 3
of the issues regarding standing. I want to turn to 4
the last one, which is Group's alternative request for 5
admission by way of discretionary intervention.
6 We all know that the standard for 7
discretionary intervention is in the regulations. And 8
there are six elements that need to be addressed.
9 We also in our order scheduling the oral 10 argument, requested that counsel be prepared to 11 discuss those elements, especially in light of the 12 fact that it is a joint petitioner here who raises no 13 contention not already raised by another petitioner.
14 Before we get into the specifics of that, 15 I just ask Mr. Lighty, does PG&E take the position 16 that Group did not address those six elements in its 17 petition?
18 MR. LIGHTY: Group did not address all six 19 of the elements. It did address a few of them in the 20 petition, in very terse conclusory sentences.
21 But it did mention a couple of elements.
22 JUDGE MERCER: Now, I will agree with you 23 that the manner in which it addressed them was 24 succinct, let's put it that way.
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
30 But as I took a look at the six elements 1
in the regulations and compared them to the petition, 2
I saw all six elements on page 6 being addressed.
3 There were two bullet points and then a 4
concluding paragraph. The first bullet point seemed 5
to address three. The second bullet point seemed to 6
address two; and, then that concluding paragraph 7
seemed to address the last of the six elements.
8 If you, are you aware sitting there of 9
which element you believe Group did not address in its 10 petition?
11 MR. LIGHTY: Well, I think regardless of 12 trying to connect the dots between the statements and 13 the specific criteria, I think there's sort of a 14 broader problem in that those statements don't support 15 the criteria in the way that the Commission has 16 envisioned that discretionary standing would work.
17 And if you look at our brief at page 16, 18 where we're talking about the element of contributing 19 to developing a sound record, a conclusory sentence 20 doesn't really go to the point of showing that that 21 element is satisfied.
22 JUDGE MERCER: Sure, I get that part of 23 PG&E's argument. The part that threw me a bit was 24 where it said that there, that Group did not address 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
31 all six of the elements.
1 And I thought that it did, and so I wanted 2
to give you the opportunity to point out to me which 3
one PG&E thought was not addressed, so that I could 4
make sure that we were actually taking a look at 5
everything specifically.
6 MR. LIGHTY: Yes, I would say we did not 7
see all six addressed in the petition itself, but I 8
would have to go back and --
9 JUDGE MERCER: Okay.
10 MR. LIGHTY: -- and try to connect the 11 dots to the six.
12 JUDGE MERCER: All right.
13 Moving on from that, we'll turn to you, 14 Ms. Curran. My question to you is, how are those six 15 discretionary intervention elements met, especially in 16 light of three different things.
17 One being that Group raises no contention 18 other than those raised by two other capable 19 organizations represented by capable
- counsel, 20 including yourself.
21 That it also has the ability to provide 22 public comment on the draft SEIS; and three, that it 23 has joined in a request to the Commission raising what 24 appears to be an identical seismic risk concern that's 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
32 been referred for a 2206 proceeding.
1 In light of those three things, how are 2
those six discretionary intervention elements met by 3
Group?
4 MS. CURRAN: Well, these issues that we're 5
raising are very, at least the first two contentions 6
are technical, complicated, and they have both 7
extensive legal and factual components to them.
8 It's quite an undertaking and I really 9
appreciate the compliment, but right now there are 10 three lawyers representing these three petitioners, 11 plus we have two experts.
12 And, we are going up against a federal 13 agency and a large corporation, which is very well 14 financed.
15 And, it's something of a David and Goliath 16 situation. And, we think that our best chance of 17 really doing a good job of creating a sound record, 18 and sound legal arguments, would be to have the full 19 complement of attorneys and experts working on this.
20 Whether EWG has experts that know 21 something about seismic risks, or the integrity of 22 Unit 1 pressure vessel, these are people who can help 23 us evaluate arguments; evaluate testimony. Help us 24 phrase it in a way that people can understand it.
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33 Ms. Leary is an excellent lawyer, and is 1
a huge help to the other two lawyers on this case.
2 I'm sorry that Hallie Templeton couldn't here today.
3 She's on leave right now.
4 But this is a big undertaking, and the 5
fact that EWG doesn't have any contentions of its own, 6
actually contributes to the efficiency of their 7
participation.
8 They're not going to be adding anything in 9
particular; they're going to be helping the other two 10 parties to do the best possible job of presenting the 11 issues that we all agree are important.
12 And I just want to add that in the Pebble 13 Springs decision, it is, the Commission did give the 14 licensing board discretion to consider what are the 15 particular features of each case.
16 And consider how their discretion might be 17 best applied.
18 JUDGE MERCER: Thank you.
19 Mr. Lighty, do you care to respond?
20 MR. LIGHTY: Yes, Your Honor, I've had a 21 chance to look at the six criteria again, and I can 22 articulate the ones that aren't addressed on page 6 of 23 the petition.
24 So if we look at the first bullet, the 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
34 first sentence alleges that EWG would contribute to 1
the development of a sound record. That's the first 2
criterion.
3 And, it is addressed.
4 But the next two. So, the nature of the 5
petitioner's property financial interest. In the 6
first bullet after the semi-colon, it talks about the 7
property financial and public health and safety 8
environmental interests of its supporters. Not the 9
organization itself.
10 And so, we contend that it hasn't 11 addressed that.
It's seeking discretionary 12 intervention as an organization.
13 And so too, with the third criterion of 14 the possible effect of any decision. It doesn't talk 15 about any effect of a decision in this proceeding on 16 Group's interests.
17 And it doesn't say what those interests 18 are. It speaks only of its supporters' interest.
19 And then finally, I think the third factor 20 that weighs against discretionary intervention hasn't 21 been addressed at all.
22 About inappropriately broadening the scope 23 of the proceeding.
24 JUDGE MERCER: Okay.
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35 And, not to leave you out, but counsel for 1
the staff, do you have anything to add on the last 2
issue as it relates to standing?
3 MR. MURPHY: Yes, Your Honor.
4 And so the issue of discretionary 5
standing, the staff agrees with PG&E's position. And 6
so looking at the six factors, it does appear that 7
they articulate at least one thing for each of the six 8
factors.
9 However, just going factor by factor. So 10 the first extent, they originally, they expected to 11 assist and so they articulate that.
12 Group has expertise in public health and 13 environmental experience in California. However, they 14 don't tie that to the proposed contentions at issue 15 here. None of which is one of those two areas of 16 expertise, allegedly.
17 And also looking at the availability of 18 other means. And so, as identified, the two other 19 groups are jointly filing the same petitions 20 identified by Group.
21 Counsel points out that it would increase 22 efficiency, however, that's not one of the factors 23 that you find in 2.309.
24 And so, that's not one of the things 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
36 identified specifically for the decision maker to 1
consider.
2 And, let's see. And that is all, Your 3
Honor.
4 JUDGE MERCER: Okay, thank you.
5 And Ms. Curran, we'll come back to you as 6
you have the burden on this. We'll give you the final 7
word to anything that has been addressed by Mr. Lighty 8
or I am so sorry, I've forgotten your last name.
9 MR. MURPHY: Murphy, Your Honor.
10 JUDGE MERCER: Murphy. I apologize, Mr.
11 Murphy.
12 If you'd care to address anything there.
13 MS. CURRAN: Yes, a couple points. First 14 of all, in terms of the nature and extent of the 15 petitioner's property, financial or other interests, 16 that's discussed in the standing declarations of the 17 members.
18 And I think it's pretty straightforward 19 that this group is involved at the behest of its 20 supporters, in order to protect their interests in a 21 safe and healthy environment.
22 If the Diablo Canyon license is extended 23 on the terms that have been proposed now, they're 24 concerned about their health and safety.
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
37 The organization's interests are also the 1
interests of their members.
2 And second, I'm not sure of what I meant 3
by efficiency. I was thinking of that last criterion 4
that whether a petitioner's participation will 5
inappropriately broaden, or delay the proceeding.
6 The scope of these contentions is going to 7
be determined by what's pled here. Unless some new 8
information comes up that warrants amendment of our 9
contentions, that certainly wouldn't be the doing of 10 Environmental Working Group all by itself.
11 It would be some agreement by the 12 petitioners that some additional issue ought to be 13 raised, or ought to be amended.
14 It's still is true that the expertise of 15 the Environmental Working Group, including its 16 leaders' expertise, will help us to do a better job; 17 will help us to meet your deadlines on time because 18 there is more of us to work on them.
19 It's going to result in a better hearing 20 record.
21 And finally, in terms of the availability 22 of other means to protect petitioner's interest. It 23 just seems so obvious to us that there isn't any other 24 venue for challenging this license renewal 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
38 application, that has real legal meaning.
1 Because the commenting on the draft EIS 2
is, responding to those comments is, it's not 3
something that we can ever appeal to the U.S. Court of 4
Appeals.
5 We have to go through the hearing process 6
in order to get judicial accountability for the NRC 7
staff's decisions on whether they adequately reviewed 8
comments on an EIS.
9 The only venue, that is the only road to 10 the U.S. Court of Appeals, is through this hearing 11 process.
Otherwise, it's within the staff's 12 discretion to completely disregard our comments.
13 And a 2206 petition is even more so. That 14 is well established to be entirely within the 15 discretion of the agency.
16 And to appeal it is extraordinarily 17 difficult. You have to meet some very, very high 18 standard that basically the agency has completely run 19 off the rails.
20 So, as far as we in our experience at the 21 NRC and the federal judicial system, this is it. This 22 is the proceeding.
23 This is the only place where any group can 24 address deficiencies in the license renewal 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
39 application and get, get relief where there's some 1
ability to hold the agency accountable.
2 JUDGE MERCER: Okay, thank you.
3 Before we move on from standing, do either 4
of my?
5 JUDGE ARNOLD: Yes, I have a question for 6
Mr. Lighty.
7 What practical diffidence do you see in 8
the proceeding, depending upon if Group participates 9
as an admitted intervener, or if Group participates 10 only on an informal advisory capacity to the two 11 intervening groups?
12 What's the practical difference?
13 MR. LIGHTY: Your Honor, I see no practical 14 difference in whether Group participates at all.
15 There are three contentions, and they are being 16 advocated by other groups, so there really is no 17 delta.
18 JUDGE ARNOLD: Thank you.
19 JUDGE MERCER: Any other questions?
20 JUDGE ARNOLD: No.
21 MS. CURRAN: Can I answer that question?
22 JUDGE ARNOLD: Sure.
23 MS. CURRAN: Thank you.
24 I
think it's really important for 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
40 Environmental Working Group if they are going to be 1
involved in this proceeding, they want to be a party.
2 And, they want to be able to be included 3
in any appeal to the federal courts.
4 So if they are reduced to the capacity of 5
a informal advisor, that's not going to be possible 6
for them.
7 And they want to participate in this in 8
order to protect the interests of their members.
9 JUDGE MERCER: Just a follow up on that.
10 It strikes me that if there was a sincere 11 effort, or a sincere desire for them to protect the 12 interests of their members, and they had a choice 13 between assisting you informally and not doing 14 anything, wouldn't they opt to assist you informally?
15 MS. CURRAN: We haven't gotten to that 16 point, but we're really, we think this is the right 17 moment to be advocating for maximum participation.
18 We really don't want to have to address 19 that question. And it's partly because this group 20 wants to be able to say to its members, we really 21 advocated for you.
22 We participated in this proceeding, and if 23 we needed to, if we need to, we're going to take it to 24 federal court.
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
41 That's our commitment to our members and 1
supporters.
2 JUDGE MERCER:
Judge Trikouros, any 3
questions?
4 JUDGE TRIKOUROS: Thank you.
5 JUDGE MERCER: Before we move off the 6
standing issue as I noted earlier, at the end of each 7
discrete section we would provide counsel with a very 8
brief opportunity to address anything that you believe 9
we've not addressed.
10 Keeping in mind that we are going to give 11 you some time at the end for closing arguments, I'll 12 start over here with Ms. Curran, and go to my left.
13 Do you have anything additional on 14 standing that you'd like to address briefly now?
15 MS. CURRAN: No, we don't, thanks.
16 JUDGE MERCER: Mr. Lighty?
17 MR. LIGHTY: Nothing further, Your Honor.
18 JUDGE MERCER: And, Mr. Murphy?
19 MR. MURPHY: Nothing further, Your Honor.
20 JUDGE MERCER: All right, great, thank you.
21 Before we get into the specific issues of 22 contention admissibility, I want to ask a question to 23 all counsel. But I'm going to turn over here whether 24 it's to Mr. Wachutka, or Mr. Murphy, I'm not sure who.
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
42 As you all know, on Thursday of last week, 1
the NRC commissioners voted to adopt a new final rule 2
that will govern both initial license renewal 3
proceedings, like this one here, and the first 4
subsequent license renewal proceedings.
5 That approval included a revised generic 6
environmental impact statement, or GEIS, and an 7
updated Table B1.
8 Among other things, the updated GEIS in 9
the Table expanded the number of environmental issues 10 to be considered on a specific plant basis, or subject 11 to a category 2 review.
12 Recognizing that the new rule is not going 13 to go into effect until 30 days after it's published 14 in the Federal Register, and I have no idea when 15 that's going to happen so it could be before we issue 16 our decision here.
17 Is there any impact that any of the 18 counsel see on this proceeding, due to the adoption of 19 that new final rule? And if so, what is that impact?
20 I don't want us to go half way down the 21 road and then we find out that there's an impact and 22 we've all got to turn around and restart.
23 So, I'll start over here with counsel for 24 staff. If you'd like to address that, and then we'll 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
43 move to the right.
1 MR. WACHUTKA: Yes, Your Honor.
2 The NRC staff's understanding of 3
petitioner's arguments with regard to environmental 4
issues, is that they point to pages 4-61 and 4-62 of 5
the Environmental Report.
6 And those pages discuss the environmental 7
issues of design basis accidents, and severe 8
accidents.
9 And the staff's understanding of the 2024 10 GEIS and the proposed revisions to the relevant rule, 11 is that both of those are remaining as small impacts.
12 So design basis accidents right now under 13 the NRC's rules, have a small, generic impact. And 14 for severe accidents, the rule also says that the 15 impacts of those at all plants are small.
16 And so, for both of those we think that a 17 challenge to them right now is a challenge to the 18 NRC's rules, which is impermissible.
19 And would also be an impermissible 20 challenge to the rules following this rulemaking, as 21 well.
22 The other issue that petitioners bring up 23 is they point to Appendix G of the Environmental 24 Report, which has to do with severe accident 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
44 mitigation alternatives analysis.
1 And, the rule now and the rule as it will 2
happen, will also say that a SAMA analysis is required 3
one time for the first license renewal, and is not 4
required for future license renewals.
5 So, we think nothing will change as a 6
result of the proposed rulemaking, Your Honor.
7 JUDGE MERCER: Okay, thank you.
8 Mr. Lighty?
9 MR. LIGHTY: Thank you, Your Honor.
10 I think even at a higher level, there's 11 really no change here. Once the rule is published and 12 becomes effective, there is still a one year 13 compliance window that will extend far into the 14 future.
15 But for our current purposes, PG&E elected 16 to prepare its Environmental Report under the current 17 regulations as are required.
18 And so, those are the regulations that 19 govern the sufficiency and adequacy of the 20 Environmental Report now and going forward.
21 JUDGE MERCER: Okay.
22 Ms. Curran?
23 MS. CURRAN: Thank you.
24 The new GEIS would affect only Contention 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
45
- 1. And we are aware and it's certainly been true that 1
the Commission's regulations before under the previous 2
rule, a previous GEIS in Table B1, the environmental 3
impacts of accidents, including severe accidents, were 4
considered category 1.
5 I think there is an exception made for 6
severe accident mitigation alternatives. But my 7
understanding of that rule was there was, with respect 8
to the actual impacts of severe accidents, the NRC 9
intended to codify them as small.
10 And that hasn't changed.
11 It also doesn't affect the legal basis for 12 Contention 1 being within the scope of this license 13 renewal proceeding, which is Chairman Hanson's 14 statement to Senator Padilla.
15 That's documented in our hearing request 16 that seismic issues would be reviewed in the license 17 renewal proceeding.
18 And we take that to mean the broadest 19 possible interpretation. Safety, environmental 20 impacts.
21 This was something said by the chairman on 22 behalf of the whole Commission to Senator Padilla, and 23 they we're relying on that.
24 JUDGE MERCER: All right, thank you 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
46 counsel, for that. And, I apologize that we didn't 1
alert you in advance. But given the recency of it and 2
the fact that we're here today, it just, there wasn't 3
sufficient time to get something out.
4 So, turning -- just checking the time.
5 Okay, turning to the issue of contention 6
admissibility. Petitioners raised three contentions 7
in their petition, and we're going to take them in the 8
order that they've raised them.
9 The first contention is as we read it, 10 related to seismic risk. Now, we read Contention 1 as 11 raising both safety and environmental contentions 12 regarding seismic risk.
13 Ms. Curran, would you please tell us a) 14 are we correct that there's a safety and an 15 environmental component?
16 And if so, what is the safety aspect 17 contention, and what is or are the environmental 18 aspect contention or contentions?
19 MS. CURRAN: Okay, in a nutshell?
20 JUDGE MERCER: Well.
21 MS. CURRAN: Well, maybe I'll start with 22 the nutshell and then --
23 (Simultaneous speaking.)
24 JUDGE MERCER: Sure.
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47 MS. CURRAN: -- move on from there.
1 JUDGE MERCER: Yes.
2 MS. CURRAN: There is a safety and an 3
environmental component to the contention.
4 JUDGE MERCER: Okay.
5 MS. CURRAN: The safety component is that 6
the risk of a seismic, of seismic, severe seismic 7
accident is unacceptable at Diablo Canyon.
8 As a matter of fact, we think this applies 9
not just to the license renewal term, but currently 10 there is a significant risk that the PG&E has 11 significantly underestimated seismic core damage 12 frequency.
13 And this is supported by Dr. Bird's 14 declaration.
15 And it's that seismic core damage 16 frequency estimate that also undergirds the finding in 17 the Environmental Report, that the environmental 18 impacts of external events, of seismic external 19 events, are small.
20 So, it's a dual contention that related.
21 JUDGE MERCER: All right, so just so I make 22 sure I understand. The safety aspect deals with the 23 severe, the risk of severe seismic accident is 24 unacceptable based on Dr. Bird's analysis.
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48 And the environmental aspect of that 1
relates to the view that PG&E included in its 2
submission that the impacts would be small versus what 3
you, the petitioners claim based on Dr. Bird should be 4
large.
5 MS. CURRAN: Yes, that's correct.
6 And just and I think this is included in 7
our petition that Dr. Bird is an independent 8
scientist. He doesn't say what we tell him to say.
9 He studied this issue and he came up with 10 these probability numbers. And, we looked at them and 11 said this is serious.
12 This is something that under NRC 13 guidelines, raises red flags for current operation.
14 That was why simultaneously with the 15 hearing request, we filed an emergency enforcement 16 petition.
17 We filed it with the commissioners and 18 they referred it to the staff.
19 JUDGE MERCER: Sure.
20 MS. CURRAN: But that this, so in other 21 words, if a safety risk is so significant whether it 22 puts it into the category of we must consider 23 emergency actions under our safety regime, it 24 automatically necessarily means an environmental risk 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
49 that is significant.
1 JUDGE MERCER: Understood.
2 And so, I just want to make sure that I 3
understand, and that the board understands what the 4
scope of that environmental contention, or 5
environmental aspect is.
6 And it's just as it relates to the 7
impacts, and we'll get into the substance of this, but 8
just so that we understand what the general high-level 9
assertion is.
10 Based on Dr. Bird's analysis, the impacts 11 of a severe earthquake would be large, rather than the 12 small that's characterized in the Environmental Report 13 submitted by PG&E?
14 MS. CURRAN: That's correct.
15 And by impacts, we mean both the potential 16 for earthquakes and the consequences of earthquakes.
17 JUDGE MERCER: Okay.
18 All right, and do you want to address the, 19 well, let me ask this, this question, then I'll turn 20 it over to Judge Trikouros, who has a question or two.
21 In a footnote in the petition, there was 22 a reference to SAMA. And, PG&E and the staff raised 23 an issue that if there was a SAMA contention, it was 24 vague.
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50 And in the reply, there was nothing from 1
the petitioners indicating that yes, there was a SAMA 2
contention.
3 Is there a SAMA contention that's being 4
raised here?
5 MS. CURRAN: No. In the sense that our 6
understanding of the concept of SAMA in the NRC's 7
Generic Environmental Impact Statement in the rule, is 8
that the NRC starts with a finding that environmental 9
impacts of severe accidents are small. All accidents 10 are small.
11 And then the question is, if they're 12 small, are there marginal improvements that would be 13 cost-justified?
14 And we disagree with that basic premise 15 that the impacts are small. So, it's premature to 16 start talking about SAMAs.
17 We have to start with this finding of no 18 significant
- impact, which ordinarily would be 19 insulated from challenge, but is no longer insulated 20 by virtue of the Chairman's statement.
21 JUDGE MERCER: Okay, all right.
22 Judge Trikouros, do you want to ask yours?
23 JUDGE TRIKOUROS: Yes. Well I'd like to 24 start out with a big picture question, as well.
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51 Primarily to Ms. Curran, initially.
1 In footnote 12 or your Statement of the 2
Contention, you do indicate that the, the risk is 3
current and ongoing. Those are your words.
4 My question is, if the risk is current and 5
ongoing, and a petition has been filed with the 6
Commission in that regard, then how does this 7
proceeding, or how does this issue, fit into this 8
license renewal proceeding?
9 MS. CURRAN: It doesn't fit under the 10 standard rules of what have been in effect since 1991.
11 It is true that the seismic risk here is not unique to 12 license renewal term, that is the rationale the NRC 13 was using to consider say, design issues, in the 14 license renewal term. But that's not what the 15 Chairman said to Senator Padilla. He said we agree to 16 look at updated information in the course of our 17 license renewal review. I'm paraphrasing, I don't 18 have the quote in front of me, but that's saying we're 19 going to do something different for Diablo Canyon, and 20 that's what we're resting on.
21 JUDGE TRIKOUROS: So you're saying, if I 22 can summarize, that apart from the words of 23 Commissioner Hanson, the issues we are discussing here 24 with respect to seismic risk really do not belong in 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
52 the license renewal proceeding?
1 MS. CURRAN: Yes, that's right, which is 2
why it's so important. This is just a very individual 3
situation here. These reactors were going to close, 4
the first one was going to close this year, the second 5
one next year, and then there was a decision to 6
reverse that, and the legislature wanted to be sure 7
and have PG&E do an updated seismic assessment. Then 8
Chairman Hanson says we're going to look at the 9
updated seismic information in the course of our 10 license renewal review. We want to get the benefit of 11 that from the NRC.
12 JUDGE TRIKOUROS: All right. All right, 13 I'm going to proceed with a couple of additional 14 questions so we can move forward. Again, in the 15 statement of the contention you say that the plant 16 should basically be shut down until the risk of an 17 earthquake related core damage accident can be 18 significantly reduced. What do you mean by that? How 19 does one significantly reduce the risk of an 20 earthquake?
21 MS. CURRAN: Well, we're seeing what the 22 modifications that could be made to the plant that 23 would anticipate the significant degree of shaking 24 that takes place in the earthquake.
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53 JUDGE TRIKOUROS: So you are referring to 1
SAMA?
2 MS. CURRAN: For the line-up grids.
3 JUDGE TRIKOUROS: That is the purpose of 4
SAMA, with respect to not only seismic risk but to all 5
risk, all severe accident risk.
6 MS. CURRAN: Well, I would just differ 7
with you a little bit on that in the sense that with 8
SAMA, you start with the assumption that the plant is 9
safe and you add in, say, marginal improvements to 10 make it safer, but that's not the situation here. The 11 plant isn't safe. And so you're talking about we've 12 already got SAMA, but SAMA's kind of those marginal 13 beneficial things that if it makes sense to spend the 14 money, let's make it safer, but it's adequately 15 protected now. I'm saying to you that we have 16 evidence this plant is not adequately protected now, 17 there is a risk of a serious earthquake and the risk 18 is much higher than the acceptable level.
19 JUDGE TRIKOUROS: Well, I'd still like to 20 understand what you mean when you say modifications 21 and what context those modifications are in. I can 22 understand within the realm of SAMA because SAMA's 23 purpose is to come up with modifications that would 24 reduce the risk of a severe accident earthquake, and 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
54 specifically where SAMAs that have core cooling, 1
containment cooling, spent fuel cooling, you know, 2
alternate power, all of that, that's seismically 3
protected that would mitigate pretty much any 4
earthquake. But they do cost a significant amount of 5
money. But when you refer to modifications, you're 6
referring to some other category of modifications and 7
I don't know where they would come from, where the 8
impetus to implement those modifications would come 9
from.
10 MS. CURRAN: The impetus will come from 11 the Atomic Energy Act, the requirement to provide 12 adequate protection to public health and safety, using 13 measures, and necessary measures are not subject to 14 cost-benefit analysis, they are in place because the 15 NRC considers them essential to provide a minimum 16 level of protection to public health and safety.
17 That's why there are complaints that our contention 18 was a mix of the Atomic Energy Act amoeba, and that is 19 correct.
20 I think that the way the NRC applies all 21 of that to accidents is, first of all, in two ways.
22 One is to say if the plants are adequately protected, 23 if the design is adequate, if the plant complies with 24 the regulations, adequate protection gives us the 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
55 equivalent more or less of an insignificant impact, of 1
one kind. And then there's a potential for a beyond 2
design basis accident, but it's so small that we don't 3
have to do anything more than look at some cost-4 beneficial ways to reduce it a little more. But the 5
Atomic Energy Act may -- the other part of the Atomic 6
Energy Act that, I guess going back to that idea of 7
insignificant impacts is something that NRC finds 8
where it can find that it is adequate protection, and 9
I don't think that the NRC has got a basis to find 10 adequate protection
- here, because PG&E was 11 underestimating the risk of a serious seismic core 12 damage accident.
13 JUDGE TRIKOUROS: So in essence you are, 14 if I understand you correctly, you're trying to divest 15 the probability rated consequences aspect of the 16 environmental analysis of mainly SAMA, to basically 17 make a modification without consideration of that at 18 all?
19 MS. CURRAN: I'm not 100% sure I 20 understand your question, but let me say something 21 that maybe answers your question, that we think Dr.
22 Bird's work shows that the risk of a serious seismic 23 accident causing core damage is at an unacceptable 24 level from the standard in the Atomic Energy Act.
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56 That has to be addressed first.
1 JUDGE TRIKOUROS: All right, the original 2
question was simply asking for clarification of what 3
you had said. So I think the clarification I wanted 4
I think I got, but basically you're saying there 5
should be no consideration to risk in this -- well, 6
there should be no consideration to probability in 7
terms of this particular seismic risk because the risk 8
is so exceedingly high and the probability is so 9
exceedingly high, and therefore it should be 10 considered as almost a given event, that this 11 earthquake would be almost considered as a given event 12 with respect to plant
- safety, and therefore 13 modifications should be made immediately or the plant 14 should be shut down.
15 MS. CURRAN: I don't see the probability 16
-- I don't think we're taking probability out of that, 17 we're just saying the probability is unacceptably 18 high.
19 JUDGE TRIKOUROS: Right, which I think I 20 said that. If I didn't --
21 MS. CURRAN: You said divest. You said 22 something, divest --
23 JUDGE TRIKOUROS: Well, what I'm trying to 24 understand is to what extent you're separating 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
57 yourself from SAMA, and it sounds like you're 1
separating yourself from SAMA entirely, which means 2
that anything associated with probability related 3
consequences are gone. And your assertion seems to be 4
that the probability of severe damage is just simply 5
exceedingly high and unacceptable and therefore should 6
be dealt with immediately.
7 MS. CURRAN: Yes.
8 JUDGE MERCER: If you've got more, you can 9
go here. I've got some questions as well, but if you 10 want to finish up, that's fine.
11 JUDGE TRIKOUROS: I'll ask one more. The 12 seismic risk that's being -- or the event probability 13 that's being discussed here is a larger earthquake 14 analogous to the Noto Peninsula earthquake, and the 15 number that has been identified, if I remember 16 correctly, is 1.4 times ten to the minus three. Now 17 I see that as an initiating event probability, is that 18 correct? Nothing more than that, just an initiating 19 event probability? But do you see it as more than 20 that? Do you see it as a core damage frequency?
21 MS. CURRAN: Well we've given you an 22 estimate of seismic core damage frequency, yes, that 23 is the terminology that is used in Dr. Bates' 24 declaration.
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58 JUDGE TRIKOUROS: Right, but in Dr. Bates' 1
analysis, his follow through was calculating the 2
likelihood of that event occurring, and that results 3
in 1.4 times ten to the minus three.
4 MS. CURRAN: Yes.
5 JUDGE TRIKOUROS: All right. So implicit 6
in that -- if that becomes a core damage frequency, 7
then implicit in that is the assumption that the 8
likelihood of severe core damage from that particular 9
initiating event has a probability of one.
10 MS.
CURRAN:
While it was an 11 approximation, to be more precise it requires a study 12 by a team, an SSE team, and I think Dr. Bird said that 13 in his declaration.
14 JUDGE TRIKOUROS: That approximation, that 15 probability of one -- okay. So in other words, what 16 you're saying is that all of the discussion that's in 17 your pleading regarding the comparison of event number 18 1.4 times ten to the minus three, to various 19 regulations that are the deal with this sort of thing, 20 which are relating to core damage frequency, and in 21 some cases total core damage frequency, you are 22 basically saying that we should treat that number, 1.4 23 times ten to the minus three, as a seismic core damage 24 frequency that can be compared to those regulations?
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59 MS. CURRAN: Yes.
1 JUDGE TRIKOUROS: Got it.
2 JUDGE ARNOLD: Mr. Lighty, somewhere 3
around page 461, I think, in the ER you say that the 4
environmental impacts of severe accidents are small.
5 Now, is this based upon your analysis or is this based 6
upon the Table B1 entry that says environmental 7
impacts are small?
8 MR. LIGHTY: That comes directly from the 9
Table B1 entry codified in the NRC's regulations and 10 backed up by the GEIS.
11 JUDGE ARNOLD: Okay, can that be 12 challenged in a litigation of this sort?
13 MR. LIGHTY: It cannot.
14 JUDGE ARNOLD: Without a waiver.
15 MR. LIGHTY: Without a waiver, which the 16 petitioners here didn't request or receive.
17 JUDGE ARNOLD: And the Safety Act spec of 18 this contention, that's more of a current licensing 19 basis, is it not?
20 MR. LIGHTY: That's correct, and I think 21 we would, Council for Commissioners, acknowledge that 22 as well. I would also note that in the discussion of, 23 we were seeking modifications of system structures and 24 components, that's the definition of a backfit, and if 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
60 you look at the regulations at 50.109, the definition 1
is there, and 50.109 a5 says that the Commission shall 2
always require backfitting, regardless of any type of 3
a cost-benefit analysis, if there's an adequate 4
protection issue, and that's dealt with through the 5
2206 process, it is certainly up to the current 6
licensing base.
7 JUDGE ARNOLD: Okay, thank you. Let me ask 8
staff, do you agree that either the current licensing 9
basis or the Table B1 entry can be challenged here?
10 MR. WACHUTKA: That's correct, Your Honor, 11 the regulation says "the probability related 12 consequences of atmospheric releases fallout onto open 13 bodies of water released the ground water in societal 14 and economic impacts when severe accidents are small 15 for our plants" and that is what the environmental 16 report is referring to and the pages that are cited by 17 Petitioners and that cannot be challenged without a 18 waiver to the rule.
19 JUDGE ARNOLD: Now, my question for you 20 is, we do have rules, regulations, and they've 21 developed through a fairly rigorous rule making 22 process in which the staff develops them, they go 23 through rigorous review, they're sent out to the 24 public for review, they get comments, they answer the 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
61 comments, and then eventually the Commission votes on 1
them and passes them. My question is how do comments 2
one commissioner in response to a senator's question 3
toss all of that out the window?
4 MS. CURRAN: It was a serious question 5
from Senator Padilla, what is the NRC going to do to 6
reassure us about seismic safety at Diablo Canyon?
7 And the Chairman, who is sitting in the room with the 8
other commissioners said we're going to look at the 9
updated information in the license renewal process.
10 Now, it raises a question, or actually it shouldn't 11 have to raise a question, what did that mean if we 12 think we should be able to rely on the statement that 13 the Commissioner, on behalf of the Commission, meant 14 what he said, and that this assurance was so good, it 15 was on record for not only the Senator but the entire 16 Congress and Senator's constituents. So whatever --
17 Chairman Hanson didn't say, oh, too bad, our rules 18 preclude us from doing any of this, then you're on 19 your own. He didn't say that, he said why don't we 20 take it out? That's what we're here to talk about.
21 JUDGE ARNOLD: Mr. Lighty, do you have any 22 comments on that?
23 MR. LIGHTY: I am aware of no legal 24 authority that suggests that a single comment at a 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
62 congressional testimony at a congressional hearing can 1
simply eviscerate codified law. There's a quite good 2
list of Supreme Court precedent, Perez v. Mortgage 3
Bankers, that says the APA mandates that if you're 4
going to modify or revoke a rule we have to use the 5
same method that you used to promulgate that rule.
6 There's no citation to any authority for anything that 7
would contradict what the Supreme Court has said on 8
this issue.
9 JUDGE ARNOLD: Do you have a comment?
10 MS. CURRAN: Judge, let me just say, I 11 didn't characterize that the Chairman entered a 12 comment, it was a commitment, and if the Bureau thinks 13 that the Chairman didn't have the authority to make 14 that commitment, I would ask the Bureau to refer this 15 issue to the commissioners so they could qualify 16 whether they do.
17 JUDGE TRIKOUROS: Yeah I'd just like to 18 confirm one thing, to the staff council, is it true 19 that as we speak, the Commission's staff is reviewing 20 a safety petition from the petitioners to shut the 21 plant down and they've identified a petitioner review 22 board and that board is working on this subject?
23 MR. WACHUTKA: Yes, Your Honor, the NRC 24 staff's position here is that there seems to be a 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
63 fundamental misunderstanding of the scope of license 1
renewal. The Chairman, his statement was "as part of 2
the license renewal process." And the license renewal 3
process, as laid out in 10 CFR part 54, and in the NRC 4
Statement of Considerations is that all the issues 5
that are unique to license renewal are subject to 6
licensing portion of that process, and then anything 7
else, which is the current licensing basis and how the 8
plant currently is, its' current standards, is subject 9
to the NRC's ongoing regulatory process.
10 And so that's the portion of the license 11 renewal process that we're talking about now, which is 12 that at any time, any issue can come up that can 13 challenge the current licensing basis, and the proper 14 form for that is the 10 CFR 2.206, of course that's 15 the reinforcement action process, and these very same 16 arguments that Petitioner is bringing now, Petitioner 17 brought before the Commission for both contentions one 18 and contention two, requesting to shut down the plant, 19 and the Commission recognized that this is something 20 that's in the oversight space of the NRC's process, 21 not the licensing portion, which is this proceeding.
22 And so it was directed to the 2206 process, both those 23 contentions are in the 2206 process right now, that 24 the experts and the staff with relevant knowledge are 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
64 discussing it right now. As you said, there's a 1
petition review board, and the end of that process 2
will be a written product, and at any point in that 3
process, which the Commission directed it to, the 4
Commission has the discretion to intercede in that 5
process.
6 And so petitioners are just trying to fit 7
their arguments into the licensing segment of license 8
renewal, where they're really part of the staff's 9
oversight in that process. And so the staff doesn't 10 believe that the Commissioner's statement was 11 necessarily inconsistent, because license renewal 12 process involved oversight and it involves licensing.
13 And at all times, including during the time that the 14 NRC staff is preparing a license renewal application, 15 they're always looking for new information that could 16 affect the licensing basis of the plant. And that's 17 what the staff did after Fukushima Daiichi accident, 18 which is discussed in the pleadings, and that's what 19 the staff will continue to do. So our core issue is 20 that this is not within the scope of this proceeding.
21 MS. CURRAN: I'd just like to read the 22 entire quotation from Chairman that appears on page 14 23 of our hearing request. He said we're going to be 24 looking at updated safety information as part of that 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
65 license renewal process. We did require our plants to 1
take a look at the enhanced -- now to look at this 2
risk after Fukushima. Diablo of course did look at 3
their seismic risk again, and will take another look 4
at that as part of the license renewal process.
5 So he used the phrase license renewal 6
process twice, and I would respectfully submit there's 7
a huge distinction between the license renewal 8
process, which is a licensing decision, it's not 9
discretionary. For NRC, if they have discretion in 10 deciding whether the plant is providing adequate 11 protection, but it's non-standard, we'll take a look 12 if we get around to it. And about oversight, they 13 will have a lot of discretion to decide how much are 14 we going to look at, when are we going to look at it, 15 how important it is. This is talking about the 16 license renewal process, which is a statutory process 17 that has rights attached to it and obligations 18 attached to it, way different from the general 19 oversight of the current licensing basis.
20 JUDGE TRIKOUROUS: But the only way that 21 this issue can be the subject of a license renewal 22 process is if we move the contention.
23 MS. CURRAN: That's right.
24 JUDGE TRIKOUROUS: And then we would go 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
66 through an adjudicatory hearing on the subject, 1
correct?
2 MS. CURRAN: Correct.
3 JUDGE TRIKOUROUS: And our deliberations 4
with respect to admitting the contentions are 5
constrained by the movement regulations that we have 6
to meet.
7 MS. CURRAN: Yes, Judge Trikourous, that's 8
true, and I would say we are also constrained by 9
Chairman Hanson's statement to Senator Padilla. That 10 is an element that you must consider.
11 JUDGE MERCER: Can I chip in on that?
12 JUDGE TRIKOUROUS: Please.
13 ADMIN. JUDGER MERCER: So I want to 14 backtrack just a moment. We've heard from Mr. Lighty 15 where he cited the Perez vs. Mortgage Bankers case, I 16 didn't see in any of the submissions any authority one 17 way or the other that the testimony of one 18 commissioner or either the chair of commission 19 actually has binding effect on the scope of what the 20 agency or the Commission's supposed to do. I'm 21 assuming Mr. Lighty, if asked, regarding the Perez 22 case, do you, Ms. Curran, have any authority to cite 23 to us that says we've got these parameters in the CFR 24 that says this is what a license renewal proceeding is 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
67 supposed to look at? This is, if it falls within then 1
it's fair game, if it falls outside we can't touch it.
2 Do you have authority that says the Chair's testimony 3
before Congress is able to amend or alter or revise or 4
supplement what's within those four corners?
5 MS. CURRAN: I don't know the case, but it 6
seems to me that Congress is the NRC's ultimate 7
supervisor. Congress passed the Atomic Energy Act, 8
the Congress engages in oversight of the Agency. If 9
the Chair to Commission, regardless of the other 10 commissioners, makes a commitment to a U.S. Senator to 11 review a certain issue in a license renewal 12 proceeding, then that has precedential value, it is 13 something that the public should be able to rely on.
14 And any determination by this body that is 15 ineffectual, would in effect say that the Chairman's 16 word has no value.
17 And we think that -- we would like the 18 Licensee Board that this commitment that the Chairman 19 made to Senator Padilla is something that I mentioned 20 could base the omission of our contention. We do not 21 think that, we ask you to refer this question to the 22 Commission so that they can clarify for Senator 23 Padilla and the public at large what was meant by this 24 statement. Did it have real meaning or was it just a 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
68 comment, as it's being characterized, or was it an 1
actual commitment to address a significant safety 2
concern that has been at the front of the public's 3
mind with respect to Diablo Canyon for decades.
4 JUDGE MERCER: And I'll get back to you on 5
what the actual scope or potential effect of Chair 6
Hanson's testimony might be, but before I do I want to 7
turn to the staff. Do you want to weigh in at all on 8
the issue of is Chair Hanson's testimony before 9
Congress, is that something that's binding that 10 essentially would expand or include within the scope 11 something that's not provided for, at least expressly, 12 in the regulations?
13 MR. WACHUTKA: Your Honor, the NRC staff's 14 position is that there'd be no need to certify this as 15 a question. The Commission acts in directing a staff 16 commiserate with its internal commission procedures, 17 and those internal commission procedures direct how 18 the staff as a collegial body, or the Commission as a 19 collegial body to direct the staff to take actions.
20 And so that's what the Commission has the power to 21 direct the staff, and Petitioners here have not 22 pointed to that or shown how a single statement from 23 the Chair of the Commission is one of those ways that 24 are dictated by the internal Commission procedures.
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69 JUDGE MERCER: Now, getting back to Ms.
1 Curran on the testimony of Chair Hanson, or the 2
statement of Chair Hanson. You read it, but I want to 3
take a look at it because I'm not sure, and I'm one of 4
three folks up here, so this is just coming from me, 5
I don't necessarily see, even if we give Chair 6
Hanson's the effect that you want us to give, that it 7
is binding and it can expand the scope of our 8
authority in license renewal proceedings, I don't know 9
that it gets you where you need to go based on 10 whenever you need it, because he says we're going to 11 be looking at updated safety information as part of 12 the license renewal process, and then later one we'll 13 take another look at that as part of the license 14 renewal process.
15 My understanding of the license renewal 16 process, set out in 10 CFR 54.4 says that the license 17 renewal process will look at seismic issues, but as it 18 relates to passive functions of structures and 19 components. And so I don't see Chair Hanson's 20 testimony as saying we're going to look at the effect 21 of seismic on everything, I read it as him saying yes, 22 as part of our license renewal process, we look at 23 seismic, but that license renewal process looks at the 24 impact of seismic only on those passive structures of 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
70 components. But what I understand Petitioners to be 1
asking us is to look at the effect of seismic on 2
things well beyond those passive structures and 3
components.
4 So that's where, even if I were to agree 5
with you, I'm not saying that I do, I'm not saying 6
that I don't, even if I were to agree with you that 7
Chair Hanson's testimony can expand that, how do I 8
read it other than saying yes, this is what our 9
license renewal process requires us to look at and 10 we're going to do that?
11 MS. CURRAN: I think there's an implicit 12 breadth to this review in Chairman's statement. When 13 he says we're going to be looking at updated safety 14 information, and I think it's reasonable to assume 15 that what he means there is that PG&E has updated its 16 safety review, and PG&E itself refers to this review 17 in its opposition to our contention to say we're doing 18 a good job, we're looking at seismic risk. So he's 19 saying we're going to have them look at this and he 20 also says that they're going to re-look at -- take 21 another look at the risk analysis they did after the 22 Fukushima accident. And that was broad, that wasn't 23 just on passive components, it was on what is the 24 seismic risk to this plant? So the implication, I do 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
71 believe the implication of this is that this is going 1
to be a broad review during the license renewal 2
process.
3 JUDGE MERCER: I was just going to give 4
Council for PG&E and the staff a chance to weigh in on 5
that.
6 MR. LIGHTLY: Thank you, Your Honor. I 7
want to be very clear that there is absolutely nothing 8
in Chairman Hanson's statement to the Senate Committee 9
that is inconsistent with the current license renewal 10 process. The staff is looking at updating safety 11 information in the context of aging management 12 programs, in the context of severe accident damage 13 analysis. The problem is that Petitioner's didn't 14 initiate the machinery to challenge those codified 15 parts that are outside the scope of what you can 16 challenge in a license renewal proceeding. The staff 17 is looking at new and significant information related 18 to external events for severe accidents, but that 19 information isn't subject to challenge unless there's 20 a waiver.
21 So if Petitioners really took Chair Hanson 22 at his word and thought he was expanding the scope of 23 the review, they could have initiated that machinery 24 and they could have filed a waiver request. They 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
72 didn't do that, and that's a key defect in what 1
they're trying to do here, to challenge things that 2
are codified, that are beyond the scope of the 3
proceeding, and that they didn't seek a waiver from 4
the rules to challenge. But everything that Chair 5
Hanson said is correct, the staff is looking at 6
updated safety information in those contexts, but 7
Petitioners just haven't followed the right process to 8
challenge that.
9 ADMIN. JUDGER MERCER: Mr. Wachutka?
10 MR. WACHUTKA: Your Honor I would add that 11 also, 10 CFR 554 talks about for current licensing 12 basis issues, that's subject to the NRC staff's 13 ongoing regulatory process. So it's oversight rule, 14 and if it's oversight rule, at this very time, at the 15 very same time that the staff is reviewing the license 16 renewal application, the staff is also looking at the 17 exact issues raised by petitioner in its 2206 process, 18 and the staff is also always looking at new 19 information including the state of California is 20 requiring, as we discussed, an analysis, a re-analysis 21 of license issues, and my understanding is the staff 22 has that and the staff is looking at that as well. So 23 everything that Petitioner is challenging here is 24 consistent with 10 CFR part 54, and for the 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
73 appropriate venue to make those arguments is the 2206 1
process and that's where they are already. So there's 2
nothing additional here for the Board to rule on.
3 JUDGE MERCER: Ms. Curran, do you want to 4
respond? And then I'll turn it over to Judge 5
Trikouros.
6 MS. CURRAN: I'd like to respond to Mr.
7 Lighty's suggestion that we should have filed a waiver 8
petition regarding Chairman Hanson's statement, and we 9
did not think that was necessary because in effect 10 Chairman Hanson did it for us, he made a
11 representation, we didn't need to ask that the 12 regulations be waived, he said we're taking a 13 different route with respect to Diablo Canyon. We 14 took him at his word, and that's perfectly legitimate.
15 JUDGE MERCER: Judge Trikouros?
16 JUDGE TRIKOUROS: Well, the problem is 17 that the way that we conduct our deliberations, follow 18 certain rules, regulations, guidelines, procedures, 19 and we do not have a choice in that matter. However, 20 whatever decision we reach is subject to appeal, as 21 you well know. That appeal goes to the Commission, so 22 you know, therefore that is the process that has to be 23 followed. Now, my understanding is that when the 24 Commission evaluates the appeal, they will be using 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
74 the appropriate rules, regulations, and guidelines 1
that we should have followed to evaluate whether or 2
not we did our job correctly. So it is a process and 3
it is being conducted right now, so it's not clear to 4
me what you're asking with respect to the comments of 5
Commissioner Hanson with respect to the Board's 6
deliberations.
7 MS. CURRAN: We'd simply ask that the 8
Board refer the issue to the Commission, just to show 9
that the Board considers that there's an issue here 10 that needs to be clarified by the Commission.
11 JUDGE MERCER: Let's set aside, or jump 12 past this particular issue, and let's say for 13 argument's sake we agree with you on the scope issue.
14 We still have to address another element of contention 15 admissibility, which is the specificity requirement.
16 Petitioners have to reference a specific portion of 17 the application they're contesting, and the supporting 18 reasons for that contest. Where in the petition, as 19 it relates to this seismic issue do the Petitioners 20 provide a specific, a reference to a specific part of 21 the license renewal application that they're 22 contesting? Because I looked for it and I didn't see 23 it, so where -- like I said, let's say we get past the 24 scope element, we're now facing the specificity 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
75 element. How do Petitioners meet that element?
1 MS. CURRAN: I'd like to -- I think 2
there's three important points to make in response to 3
this. First, we did refer to the seismic core damage 4
frequency estimates in the environmental report.
5 That's in Dr. Bird's declaration, it's really clear.
6 So he definitely points to the seismic core damage 7
frequency estimate, gives the figures there in the 8
environmental report, talks about where we maybe can 9
find previous iterations in earlier license renewal 10 GEIS, and certainly meet the standpoint. That's met, 11 that requirement is met.
12 From a safety standpoint, while it may be 13 a bit of a chicken and egg problem, that when 14 regulations don't require the application to address 15 seismic risk, here on the safety side. So you all 16 look in vain for some discussion in the license 17 renewal application about seismic risk. Dr. Bird 18 focused on the 2018 seismic PRA, which is what the 19 most recent seismic study that PG&E is relying on to 20 say, show as equal to the environmental report, and 21 also in saying to the state that the plant is 22 adequately safe. And perhaps, I don't know if the NRC 23 has reviewed that in its ongoing review, but it may 24 have been recognized to be in the environmental 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
76 report.
1 JUDGE MERCER: So, just so I am clear on 2
the safety aspect of contention one, you're saying the 3
specificity or the specific portion is the 2018 4
seismic PRA?
5 MS. CURRAN: Yes, and again, taking it 6
back to the quotation from Jeremy Hanson, he said 7
we're going to be looking at updated safety 8
information. And that updated safety information is 9
the seismic PRA, I think it's been updated more 10 recently, but that's the --
11 Okay, I'm going to try to say this as 12 succinctly as I can. Dr. Bird is relying on the 2018 13 seismic PRA, which was updated, not a significant 14 extent, in 2024. The SCDF, which is the seismic core 15 damage frequency, was updated slightly in 2024. If 16 this is the updated information that we believe 17 Chairman Hanson was talking about would be reviewed, 18 and under the concerned scientist, the case that we 19 cited, Chairman Hanson is telling Senator Padilla, 20 this is not relevant to our license renewal decision, 21 we're going to look at it, and we're not going to 22 congress until you've taken a look. So that brings it 23 into the ether of the license renewal proceeding.
24 JUDGE MERCER: Mr. Lighty, do you want to 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
77 address the specificity element, as it related to --
1 and I think we're talking about, or we'll kind of 2
merge them together, if you want to address it as it 3
relates to the safety as well as environmental impact.
4 MR. LIGHTY: Sure, Your Honor. I think as 5
to the safety element, as Mr. Curran noted, the 6
regulations don't require that information to be in an 7
application, but when you look at the contention 8
admissibility criteria, in 2.309, F1, VI, it says that 9
an admissible contention "must include references to 10 the specific portions of the application that the 11 petitioner disputes." It's not enough to dispute some 12 other document somewhere else that's part of the 13 current licensing, we must dispute something that's in 14 the application. And as Petitioner has acknowledged, 15 this information is not in the application, because 16 it's not required to be because it's not part of part 17 54 or license renewal. And I think that's the 18 fundamental issue with their safety challenge.
19 I do agree that they have identified 20 specific portions of the environmental matters that 21 they wish to challenge, the problem there is they're 22 identifying codified information that can't be 23 challenged without a waiver.
24 JUDGE MERCER: Mr. Wachutka?
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78 MS. WACHUTKA: Your Honor, the NRC staff 1
agrees there is no genuine dispute on the safety side, 2
because there's not a single application, there is no 3
genuine dispute on the environmental side because 4
those references as we discussed are challenges to 5
rules which are not inadmissible, and again, Your 6
Honor, all of these arguments are before the staff 7
experts under 10 CFR 2.206 process, the staff has 8
issued an initial assessment on that with responses 9
due on May 29th, and any additional information can be 10 added at that point, and that's where this additional 11 information is supposed to go. This is all current 12 licensing basis oversight issues, Your Honor, there's 13 nothing more to it.
14 JUDGE MERCER: I've got a couple more 15 questions as it relates to the environmental aspect of 16 contention one, and then we'll take a brief break.
17 Ms. Curran, as it relates to the environmental aspect 18 of contention one, are Petitioners claiming that it's 19 a change in the potential seismic hazard for Diablo 20 Canyon that underlies the environmental aspect?
21 MR. CURRAN: An underestimate, 22 I would say. It will change it we think that Dr. Bird 23 has a more reasonable estimate.
24 JUDGE MERCER: Now, as you've been 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
79 alluding to a number of times, the main impediment 1
that I see to the admissibility of contention one on 2
the environmental side, setting aside the whole scope 3
issue, is the small versus large and it being a 4
category one or a codified issue, and there was no 5
waiver petition that was filed here. I understand Dr.
6 Bird's analysis, I understand the explanation of Dr.
7 Bird's analysis, that the thrust vaults are stronger 8
and therefore when all that is factored in, 9
Petitioner's view is that the impact is not small but 10 it is in fact large. I understand all of that, but 11 how do you get around, or how do you advocate that we 12 somehow address and get around the fact that small is 13 codified, and that's where that comes from, and there 14 was no waiver petition that was filed?
15 MS. CURRAN: Go back to Chairman Hanson's 16 statement, that we rely entirely on that statement, 17 that commitment, I should say.
18 ADMIN. JDUGE MERCER: Okay. Mr. Lighty, 19 Mr. Wachutka, do either of you have anything on that 20 particular issue? I don't want to foreclose the 21 possibility of allowing you time.
22 MR. LIGHTY: I have nothing further, Your 23 Honor.
24 MR. WACHUTKA: Your Honor, the NRC staff 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
80 understands that all the arguments in contention have 1
been conceded, other than the statements of the 2
Commissioner, and as we stated, those aren't 3
inconsistent with the 10 CFR 554 rule making, the 4
Commission directed these issues already to the staff 5
under 10 CFR 2.206 process, and the NRC's internal 6
commission procedures dictate how the Commission acts, 7
and I don't think this is one of the ways the 8
Commission can direct the staff.
9 JUDGE MERCER: Judge Arnold, Judge 10 Trikouros, any other questions on contention one?
11 JUDGE TRIKOUROUS:
I have one 12 clarification right now.
13 JUDGE MERCER: Sure.
14 JUDGE TRIKOUROUS: It's footnote 12 15 actually, of your petition. I think I referred to 16 that earlier as well. You're addressing this 17 question, the small risk that has just been discussed, 18 in that for the end -- you say therefore, but in terms 19 of modifications, you then are referring to the SAMAs.
20 You're saying therefore the severe accident mitigation 21 alternatives listed in appendix G of the environmental 22 report are grossly inadequate to address the magnitude 23 of the environmental impacts involved. So your way of 24 dealing with this idea of the small, the codified 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
81 conclusion that the environmental impacts are small, 1
you seem to be referring to the severe accident 2
mitigation alternatives, and saying that they're 3
grossly inadequate. My first question would be what 4
do you mean by grossly inadequate?
5 MS. CURRAN: What we mean by grossly 6
inadequate is that the premise of the standards is 7
that PG&E is starting the small impacts, and so then, 8
if you're starting the small impacts, then the rest of 9
SAMAs is going to be marginal improvements to make 10 something that's good, better. And if you're dealing, 11 as we think they should be, with large impacts, we're 12 not talking about marginal improvements, we're talking 13 about major alternatives such as not pursuing the 14 action alternative. That's not traditionally looked 15 at as a SAMA by the NRC. That's what we're trying to 16 get at here, Judge Trikouros, is if SAMAs are an 17 animal that relates to small impacts, let's make it a 18 little better, if it makes sense to spend the money.
19 But that's not what we're talking about in this 20 contention, we're talking about unacceptable level of 21 risk, that runs major measures A, to provide adequate 22 protection, and B, to perhaps consider the alternative 23 amoeba of not going ahead with this, not a good idea.
24 JUDGE TRIKOUROUS: There is, as I 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
82 mentioned earlier, I'll repeat it, there is at least 1
one SAMA, which would basically make the plant risk 2
free from earthquake. I think it's SAMA 19 of 3
appendix G, and it does that basically be assuring the 4
core is cooled, the containment are cooled, the spent 5
fuel pool is cooled, using the separate rule equipment 6
to seismically qualify to be available after the 7
earthquake of the magnitude we're discussing. But the 8
safety of the plant is just sort of self-contained in 9
that mode. This modification is extremely expensive.
10 Well, I shouldn't say extremely expensive, by nuclear 11 standards it's not even moderately expensive, but it 12 is certainly expensive. And it is subject to the 13 requirements of being properly rated. And you haven't 14 made any representation regarding whether or not this 15 new and significant credibility information would 16 perhaps bring that modification into the forefront, if 17 the SAMA were re-analyzed with this new information.
18 So basically, I just want to confirm that 19 you are not relying on the SAMA or process in your 20 contention? Your contention is -- which would bring 21 it under the realm of environmental information that 22 is not subject to the category one?
23 MS. CURRAN: Yeah, let me just play out, 24 while we supposedly haven't challenged the finding of 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
83 insignificant impact of small impact, and they're 1
saying we really should have considered alternative, 2
SAMA number 19. I figured the answer would have been, 3
well those impacts are small, it doesn't -- and this 4
is what the SAMA analysis says, why would we spend all 5
that money, the impacts are small.
6 And our contention, the purpose of our 7
contention is to say there is an elephant in the room, 8
there's a really big problem here, and whatever array 9
of SAMAs that have been created in order to mitigate 10 this small risk, we're saying go back to the drawing 11 board, the way we identify reasonable alternatives in 12 a reasonable way is to make a good, fair assessment of 13 the likelihood and consequences of an accident. So we 14 think it's premature to start arguing about what SAMA 15 might be cost effective, when we don't have an 16 adequate risk analysis that would lead to a reasonable 17 array of SAMAs. The SAMAs that you would consider, 18 where the risk was significant, well they're really 19 different from the array that you would consider if 20 the impacts were small. And we're not going to 21 nitpick the array of SAMAs for a small impact that 22 appears in the environmental report. We're going back 23 to the issue of, is the impact significant? And if we 24 can prevail on that, then PG&E would have to go back 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
84 and look at a new array of alternatives, maybe some 1
things that would be considered necessary, worth the 2
money. But we're not there yet.
3 JUDGE MERCER: Thank you. All right, as 4
I mentioned at the beginning, I will offer to counsel, 5
from our perspective we have concluded contention one.
6 We'll give counsel opportunity if you'd like to 7
provide any final or brief issues that you don't think 8
that we addressed or that need to be addressed more, 9
keeping in mind that you will have five minutes at the 10 end for final closing arguments. Ms. Curran?
11 MS. CURRAN: I'd just like to say that 12 Mothers for Peace was founded in the 1970s out of 13 concern about earthquake risk to Diablo Canyon. They 14 have consistently advocated for, the advocated for not 15 building a plant, not operating a plant, and over more 16 than four decades have constantly monitored the safety 17 of the plant to do everything they could to ensure 18 that it would be as safe as possible.
19 And even then, the California legislature 20 passed SBA 46, providing PG&E with their loan, 21 encouraging them to apply for a license renewal. They 22 didn't say, we're not worried about earthquake risk 23 anymore, they said we're going to require PG&E to 24 update their seismic studies and they put something in 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
85 the bill that said if the NRC requires seismic 1
insurance that costs too much money, we're going to 2
change this decision, the NRC would change it.
3 So that's -- you know, it's in the 4
thinking of legislature, and now you have Senator 5
Padilla asking Chairman Hanson what are you going to 6
do to protect my constituents in the event of an 7
earthquake? We think this is hugely important, the 8
commitment that Commissioner Hanson made to the 9
Senator, and this is on an issue that goes back the 10 entire operating life of this plant, and before. So 11 please, we ask you to take that into account, that 12 something significant was said here about a
13 longstanding problem that is at the forefront of not 14 only the legislature's
- concerns, but Senator 15 Padilla's..
16 JUDGE MERCER: Thank you, Counsel. Mr.
17 Lighty?
18 MR. LIGHTY: Thank you, Your Honor. I 19 just wanted to briefly go back and tie up some loose 20 ends on the last exchange we had between Judge 21 Trikouros and Ms. Curran regarding SAMAs. And I just 22 want to make clear for the record that the only 23 mention of SAMAs in the petition is in that footnote 24 12 that's being discussed. A single sentence that, if 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
86 I could paraphrase, says appendix G is bad. That's 1
not enough to demonstrate a genuine dispute for an 2
admissible contention. The Petitioners didn't 3
identify SAMA 19 or any specific SAMAs, they didn't 4
criticize any aspect of any of those SAMA analyses, 5
they didn't allege that considering this new 6
information would somehow overcome the cost-benefit 7
analysis and cause a material change in the outcome of 8
that analysis. Those are all things that you must do 9
to demonstrate a material contention, and that has not 10 remotely been satisfied here in that single footnote.
11 JUDGE MERCER: Thank you, Counselor. Mr.
12 Wachutka?
13 MS. WACHUTKA: Your Honor, as clarified by 14 the Petitioners, contention one comes down to a 15 statement of Chair Hanson's, and as we have explained, 16 this statement is not inconsistent with the NRC's 17 license renewal rule, which specifies that aging 18 management issues, issues unique to aging management 19 are a part of this licensing proceeding. All other 20 issues related to the current licensing basis, 21 including these seismic issues, are part of the NRC's 22 oversight process. The NRC is at all times, including 23 at the same time as reviewing licensing of 24 applications, making itself aware in its oversight 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
87 role of information that could impact the current 1
licensing basis of its licensed facilities, and acting 2
on that information as appropriate. So the statement 3
is correct and the statement does not change the scope 4
of this proceeding or the scope of the NRC's rules.
5 JUDGE MERGER: All right, thank you 6
Counselor. It is 2:59, Eastern Time, in the East 7
Coast, from those joining from out in California, 8
subtract three. We're going to take another 10 minute 9
break, so let's meet back here in the hearing room at 10 10 minutes after 3:00 Eastern Time. Thank you.
11 (Whereupon, the above-entitled matter 12 went off the record at 3:00 p.m. and resumed at 3:11 13 p.m.)
14 JUDGE MERCER: All right. We are back on 15 the record. Thanks, everyone, for making it back.
16 We're now going to turn to contention two, the Unit 1 17 reactor pressure vessel embrittlement, reactor 18 pressure vessel, or RPV. Ms. Curran, we read 19 contention two as raising a safety contention claiming 20 that PG&E's plan to monitor or manage the 21 embrittlement issues related to Unit 1 reactor 22 pressure vessel embrittlement is inadequate. Is that 23 a correct repeating of contention two?
24 MS. CURRAN: Yes.
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88 JUDGE MERCER: And just to confirm, this 1
contention is limited to the Unit 1 RPV, correct?
2 MS. CURRAN: That's correct.
3 JUDGE MERCER: Now, we spent some time 4
during contention one talking about CLB. Do the 5
petitioners agree that a nuclear power plant's CLB is 6
not within the scope of a safety contention on a 7
license renewal proceeding?
8 MS. CURRAN: And it didn't matter, yes.
9 JUDGE MERCER: Reading pages 16 and 17 of 10 the petition, Dr. Macdonald's opinion is summarized as 11 saying that the proposed aging management program for 12 the RPV, which Dr. Macdonald opines is inadequate, 13 quote, relies heavily upon and perpetuates the pre-14 existing and inadequate surveillance program that PG&E 15 has used during the decades-old initial operating 16 license period, close quote.
17 Petitioners then go on and outline 18 purported deficiencies, ostensibly of the RPV aging 19 management program. And then Dr. Macdonald or the 20 petitioners conclude, quote, taking all of these 21 deficiencies into account, Dr. Macdonald concludes 22 that the NRC must reject PG&E's license renewal 23 application because it relies on this outdated pre-24 existing program without addressing or resolving its 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
89 multiple serious inadequacies, close quote.
1 Ms. Curran, this strikes me as conveying 2
that contention two is challenging Diablo Canyon's CLB 3
and therefore be outside the scope of the proceeding.
4 How is it not challenging the CLB and therefore 5
outside the scope of this proceeding?
6 MS. CURRAN: Judge Mercer, this contention 7
is something like the contention that the licensing 8
board admitted in the case that we cited. And in that 9
case, there were pre-existing problems that were not 10 resolved, and they're not more in addressed in the 11 aging management program. And so the aging management 12 program was just perpetuating these problems and not 13 dealing with very significant problems that if they're 14 disregarded, then the aging management plan doesn't 15 really make sure that this very important passive 16 safety component is going to be adequately monitored 17 and managed.
18 And in section 4 of his declaration, Dr.
19 Macdonald goes through a number of statements in a 20 license renewal application where PG&E demonstrates 21 its reliance on the existing program as a basis for 22 going forward and saying, well, we're going to do some 23 additional things, but we rely on calculations that 24 were made to date, testing that we've done to date.
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90 And we -- as Dr. Macdonald sets forth, the 1
last time a pressure vessel was sampled, that samples 2
were taken from the pressure vessel and tested, was 3
2002. That's almost 25 years ago now. And the last 4
time that the ultrasound testing was done on the 5
pressure vessel was 2005. They're supposed to happen 6
every 10 years, and that was the way NRC approved an 7
extension of time until I think 2025. So basically, 8
PG&E is going into this aging management plan without 9
a really good sense of what is the condition of the 10 pressure vessel and what is needed.
11 JUDGE MERCER: Well, and I'm going to give 12 PG&E and the staff an opportunity to respond to the 13 question I just posed to you. But before we get 14 there, because you've led into Dr. Macdonald's report, 15 I wanted to follow up with that because setting aside 16 whether you can just incorporate by reference Dr.
17 Macdonald's report without pulling it in -- calling it 18 out specifically in the petition. I looked at Dr.
19 Macdonald's report and I saw only five pages from the 20 license renewal application that he cited in his 2024 21 report.
22 Of course, there were none cited in the 23 2023 report because that was done before the license 24 renewal application. But I only saw five pages. And 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
91 on those five pages, I saw only two things that he 1
challenged or could potentially be deemed to be a 2
challenge of the license renewal application, one 3
being the timing of the removal and testing for 4
capsule B, and two being an issue about the ultrasonic 5
testing of the Beltline welds and how that relates to 6
the scheduled ultrasonic testing inspection.
7 But as it relates to the specificity issue 8
here, one, the issue of the testing of capsule B, Dr.
9 Macdonald answers his own question later on when he 10 cites to the correspondence between PG&E and the staff 11 that PG&E is going to pull the thing for testing no 12 later than 2025. So there is a commitment to pull and 13 test. And the whole issue of the ultrasonic testing 14 of Beltline welds, he brings up the fact that those 15 two things aren't married together, but then never 16 mentions or explains why or how they should be 17 considered together.
18 So I'm not seeing anything in those five 19 pages where there's really any specific explanation or 20 delineation of what the dispute is with the license 21 renewal application. Are you able to help me with 22 that?
23 MS. CURRAN: Well, I'll start with 24 paragraph 19, which is the first paragraph in section 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
92 5 on page 6. Let me just back up a minute and say 1
that the purpose of section 4 is to lay out the 2
sections of the license renewal application that rely 3
on the existing surveillance system and the 4
conclusions PG&E reached from it in the license 5
renewal application. And there's one, two, three, 6
four, five, six or seven paragraphs there where he 7
gives examples of statements in the license renewal 8
application. And I can go through those in detail, 9
but --
10 JUDGE MERCER: Well, one second there. He 11 does call out in each of those paragraphs a part of 12 the license renewal application, but he doesn't 13 necessarily say something is wrong. Like in paragraph 14 13, all he does is quote page 4.2-2 and doesn't 15 explain what's wrong with or why that's being called 16 out. Similarly, in paragraph 14, he does the same 17 thing, but then he provides a paragraph that says, 18 thus the previous schedule for withdrawal of capsule 19 B is relied upon by PG&E for its plans. However, I'm 20 unable to locate any commitment by PG&E to a deadline 21 for removing and testing capsule B.
22 So I see there he said, this is the 23 paragraph I'm citing to, this is the problem, which he 24 didn't do in the prior paragraph. But in this 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
93 particular situation or this particular instance, the 1
very paragraph 19 and paragraph 20, he specifically 2
cites to the correspondence between PG&E and the staff 3
where there is a commitment by PG&E to remove and test 4
that.
5 So I'm trying to figure out what parts of 6
the license renewal application is he challenging and 7
what the particular challenge is. Because yes, he's 8
called out pages throughout his report, but he hasn't 9
then identified and said, and this part that I've just 10 quoted is wrong because, or is deficient because, or 11 does this incorrectly. That's the part that I'm 12 missing.
13 MS. CURRAN: Well, I think that in 14 paragraph 14 of Dr. Macdonald's declaration, where he 15 says, I am unable to locate any commitment by PG&E to 16 a deadline for removing and testing capsule B. There 17 is no deadline in the license renewal application for 18 testing capsule B. And therefore, we're relying on 19 statements made by PG&E in the current license term, 20 the initial license term, which have changed over 21 time. They've gotten I don't know how many extensions 22 of time.
23 This capsule was supposed to be removed in 24 2009. And they've gotten multiple extensions. Right 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
94 about when PG&E decided to close Unit 1, it was in 1
2022. PG&E didn't take it out in '22. I don't think 2
they even wrote to the NRC about it. Then they got 3
another extension until -- I guess they got one until 4
2023. And then they said they couldn't get it out.
5 And the NRC said, do it in 2025 or as soon as you can 6
do it. That's in the current license renewal term.
7 And then in comparison to that, we have no 8
commitment for the renewal term. It's just this 9
series of extensions in the current term going into 10 2025, which could be in the current license term 11 because of the exemption that the NRC issued to the 12 timely renewal rule. The current license could go on 13 past 2024 under an exemption issued by the NRC. So 14 basically, it's a no man's land.
15 JUDGE MERCER: Do Petitioners cite 16 anywhere something that says in the license renewal 17 application there has to be a specific date by which 18 this testing is to be accomplished, or?
19 MS. CURRAN: We rely on Dr. Macdonald's 20 expert opinion that it has been far too long since 21 PG&E took any kind of sample from the Unit 1 pressure 22 vessel and tested it to determine its condition. In 23 the meantime, PG&E has been relying on data from 24 another reactor when it was required to have tested it 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
95 in 2009.
1 JUDGE MERCER: Well, I don't want to get 2
into the substance because that's not the role of the 3
Board at this point in time. But, I mean, the staff 4
did respond to the 2206 petition and specifically 5
provided information that directly contradicts that 6
information that you're giving us now. That the staff 7
has said that all of the regulatory requirements for 8
testing had been accomplished. At least as I read the 9
2206 response, the staff of PG&E can chime in when 10 it's their time if I'm incorrect.
11 But again, I come back to that may be Dr.
12 Macdonald's opinion and no disrespect to Dr. Macdonald 13 at all, but for us we have to be able to say there's 14 some requirement that this testing has to be done and 15 the failure of the LRA to include a deadline is 16 deficient and therefore this is either a sufficiency 17 contention or a contention of omission because they 18 don't have that date and we have to be able to point 19 to that.
20 Because as Judge Trikouros mentioned as it 21 relates to contention one, our decision can go up for 22 appeal and we've got to be able to explain to the 23 commission why we're saying what we're saying and we 24 can't justify a deficiency in the LRA based on Dr.
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96 Macdonald's opinion that's not tied to any type of 1
regulatory requirement. So that's what I'm missing is 2
the hook to the regulatory requirement where something 3
is wrong.
4 MS. CURRAN: Judge, those are two things.
5 One is that there are no license renewal requirements 6
in Part 54 for testing of capsules. The requirements 7
or any regulatory guidance it pertains to the initial 8
license term. Capsule B, the capsule that is now 9
planned to be taken out in 2025, was installed in the 10 initial license term and was expected to be taken out 11 in the initial license term.
12 We actually have a case pending in the 13 Ninth Circuit arguing that the NRC amended the license 14 when it allowed the recapture of the time for low 15 power testing on the condition that capsule B would be 16 taken out in 2009. But once that was missed, once 17 that time for taking out the capsule B during the 18 initial time license term, once that's missed, there's 19 no regulatory requirements.
20 This is a great gap in the NRC's oversight 21 of pressure vessels. And that's why we are now in a 22 realm of looking at expert opinion as to what would be 23 reasonably required in order to assure that this 24 pressure vessel, which had problems from the moment it 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
97 was purchased, that it maintains integrity through the 1
20-year license renewal term. This falls to a great 2
extent on the expert opinion on analyses that have 3
been done up to now by Western House and on the 4
results, PG&E's relying on the results of capsules 5
that were taken out earlier, capsules S, Y, and V, and 6
now extrapolating what's needed in the license renewal 7
term. That is the environment that we are in here.
8 JUDGE MERCER: Okay. Mr. Lighty, I'll 9
turn it over to you for PG&E's position relative to 10 the couple of questions that I've posed. And I 11 apologize that you're getting several questions thrown 12 at you at once, but if you could address those from 13 PG&E's perspective, please.
14 MR. LIGHTY: Thank you, Your Honor. Yes, 15 I'll try to address those in turn. So I think, Judge 16 Mercer, you were right on point in noting that even 17 though the petitioners wish to argue that there's no 18 deadline in the LRA for testing capsule B, that's 19 because there is no requirement for that information 20 to be included in a license renewal application. The 21 petitioners point to no requirement. There isn't one.
22 So that's not a genuine dispute on a material issue of 23 law effect in this proceeding.
24 I think to summarize my understanding of 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
98 the petitioners' position, it's that they assert it is 1
a defect for the aging management program to rely on 2
information from materials that were monitored within 3
the scope of the CLB materials surveillance program.
4 But they don't explain why that is a material defect 5
either.
6 In fact, if you look at the GALL report, 7
the aging management program that is the template 8
approved by the commission and approved to fully 9
satisfy the requirements of Part 54 for aging 10 management on reactor vessel surveillance, it has an 11 AMP for that purpose. It's XI.M31. And if you look 12 at item number one, scope of program, it specifically 13 says materials originally monitored within the scope 14 of the licensee's existing 10 CFR Part 50 Appendix H 15 materials surveillance program will continue to serve 16 as the basis for the reactor vessel surveillance aging 17 management program. It's explicitly endorsed by the 18 commission. It's expected that this information would 19 be part of the AMP.
20 So for the petitioners to rest their 21 entire contention on just the assertion that it relies 22 on CLB information, I think it's pretty clearly 23 immaterial and they haven't raised a genuine dispute 24 here.
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99 I think one other thing that I would note 1
is that Ms. Curran mentioned the Indian point case 2
earlier. That's a case that was cited in their reply 3
- brief, LBP-08-13, for the proposition that 4
embrittlement issues are within the scope of a license 5
renewal proceeding. I would just note that that 6
decision pertains to a contention of omission where 7
the applicant did not include an AMP for reactor 8
vessel aging management. The applicant later supplied 9
one and it superseded that contention, but that was 10 what was being discussed there, the absence altogether 11 of an AMP. Here, what we have is an AMP that exists 12 but hasn't been challenged with any specificity.
13 One other point that I would note is that 14 even though there is no hard deadline for testing 15 capsule B, the Appendix H requirements impose limits 16 on operation if a capsule that can't show extended 17 operation has been pulled. And if you look once again 18 at the GALL report, the template aging management 19 program for reactor vessel surveillance, it explains 20 exactly what happens in that circumstance if you don't 21 have a capsule that can show that you can continue 22 operating. It says, quote, operating restrictions are 23 to be established to ensure the plant is operated 24 under the conditions to which those surveillance 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
100 capsules were exposed. So the program itself deals 1
with that issue.
2 And once again, Petitioners haven't 3
engaged with that information. They haven't disputed 4
that information. This is a commission-endorsed aging 5
management program that PG&E has adopted and the 6
commission has generically determined that it meets 7
the requirements of 10 CFR section 54.21. So, all 8
along, PG&E has followed the requirements for capsule 9
removal, has requested appropriate staff approvals for 10 changes to schedules where required. That has been 11 reviewed yet again in the 2206 petition process. And 12 throughout all of this, the petitioners haven't 13 identified any genuine material dispute here in the 14 license renewal application on this issue.
15 JUDGE MERCER: All right. Mr. Wachutka, 16 before I get to you, I want to go back to Ms. Curran 17 and a question I should have asked. The AMP that's 18 being challenged, it is the RPV surveillance AMP. Is 19 that correct?
20 MS. CURRAN: Yes.
21 JUDGE MERCER: Okay. All right. Mr.
22 Wachutka, if you'd like to present the staff's 23 position on the couple of questions that I addressed 24 to Ms. Curran at the beginning and then we'll circle 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
101 back to you, Ms. Curran, for follow-up on that.
1 MR. WACHUTKA: Yes, Your Honor. One 2
additional thing that the staff would stress is that 3
-- I think you mentioned it, but to get into it is 4
that for the contention admissibility standards in the 5
regulations at 2309F1, the requirements for all of 6
these criteria, including genuine dispute, which we're 7
discussing now, are, quote, for each contention, the 8
request or petition must, end quote, discuss those 9
things. And in this case, contention two makes zero 10 references to the license renewal application. So 11 that does not meet the genuine dispute requirement, 12 which requires references and instead, it points to 13 two declarations.
14 However, as we showed in our pleading, 15 there's case law that says that that is insufficient.
16 And then even if we were to get to the point where 17 these disputes, certain portions are being referred 18 to, after the declarations identify those things, then 19 it just returns to the previous arguments that were 20 made in 2023 for why the plant is currently unsafe.
21 And that belies the fact that these arguments actually 22 have to do with those reference portions of the 23 licensing application.
24 And regardless, those exact arguments were 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
102 referred to the staff under the 2206 process by the 1
commission, which, as the staff's position is that, is 2
the appropriate process for these, because there are 3
challenges to the current licensing basis. And that 4
process involves such things as asking the sponsor of 5
the 2206 petition for additional information. So in 6
this case, the newer declaration has a few additional 7
comments and arguments, and the appropriate place to 8
bring those was in the 2206 process.
9 And as you referred to, Judge Mercer, the 10 staff has put together an initial assessment. The 11 initial assessment goes through every argument that's 12 made here and has a written record of the staff's 13 position on it. And so to have a hearing in this 14 forum on the same issues would just be duplicative.
15 And that, again, just illustrates the point that we 16 are out of scope here discussing these issues in this 17 licensing proceeding.
18 JUDGE MERCER: Ms. Curran, would you care 19 to respond to information presented by both counsel?
20 MS. CURRAN: Well, listening to Mr. Lighty 21 read the section from the GALL report, I may have 22 misheard him, but it sounded to me like what the GALL 23 report was saying was that the material monitoring 24 that is in the original license term is used as a 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
103 basis for the aging management plan. And it only 1
makes sense that this is a single component. It can't 2
be replaced, or not without spending a huge amount of 3
money. It's very difficult to repair.
4 So it's really important to have some 5
continuity over time between this monitoring program 6
that was clearly required during the first 40 years 7
and then this aging management plan for which the only 8
thing that Mr. Lighty can cite is staff guidance.
9 There's not regulations for what to do with the 10 pressure vessel during the license renewal term.
11 So if it's really correct that the 12 monitoring of the materials in the pressure vessel up 13 until the point of renewal is important, it's 14 something that is built upon in the aging management 15 plan. Then if there's problems with that current 16 program, it's highly relevant to whether the aging 17 management plan is going to be successful. Otherwise, 18 it's just like rearranging the deck chairs on the 19 Titanic. You have to have a sense that the foundation 20 that you're building on is adequate because that is 21 what the aging management plan does.
22 JUDGE MERCER: But with that being the 23 issue though Ms. Curran, how do we get around the fact 24 that what you are challenging then is the current 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
104 licensing basis for the plant?
1 MS. CURRAN: The way we address that is to 2
say that the aging management plan is inadequate 3
because it does not address serious concerns that the 4
reactor may be unduly embrittled. For instance, it 5
does not include a requirement to actually test 6
capsule B right away. It's not in the license renewal 7
application. It doesn't include ultrasound testing.
8 JUDGE MERCER:
But where is the 9
requirement that those be in that aging management 10 plan?
11 MS. CURRAN: What we are relying on is Dr.
12 Macdonald's expert opinion that those things have been 13 delayed unduly and unsafely such that we are now 14 entering the point of licensing renewal, the time of 15 license renewal, not having a good idea what is needed 16 because we don't have a good idea of what the 17 condition of this reactor vessel is. You can't have 18 an aging management plan for a reactor vessel where 19 you don't have a good idea of what is the situation 20 you are dealing with.
21 JUDGE MERCER: But in that answer, as I 22 understand it, Dr. Macdonald then is challenging the 23 current licensing basis, saying the current licensing 24 basis is insufficient to give us that baseline, which 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
105 circles back to my question of how is this not a 1
challenge then to the current licensing basis?
2 MS. CURRAN: Because the aging management 3
plan itself assumes that this pressure vessel has been 4
adequately cared for and inspected throughout the past 5
40 years. If the aging management plan assumes that, 6
then it becomes relevant to the -- then the past 40 7
years becomes relevant to the aging management plan.
8 We are not attacking the CLB by itself. We are 9
attacking the fact that this aging management plan is 10 supposed to be based on a reasonable amount of 11 information about the condition of the pressure vessel 12 and we don't have it.
13 JUDGE TRIKOUROS: In Dr. Macdonald's 14 declaration, I believe it's paragraph 17, he 15 references page B2-95 of the LRA. And in page B2-95 16 of the LRA, it's dealing with section B2-318 which is 17 the reactor vessel surveillance program, which is what 18 we're talking about now. It says that the reactor 19 vessel surveillance AMP is an existing AMP and I 20 believe that it is the AMP that we're talking about as 21 being described as the current licensing basis or 22 within the current licensing basis. Is that correct?
23 And I ask that question also to Mr. Lighty.
24 MR. LIGHTY: I believe that they are 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
106 slightly different programs. So the first sentence in 1
B2-318 talks about the existing AMP, but this AMP then 2
includes -- that's part of the LRA and would be for 3
the period of extended operation, includes the 4
additional information that is here in the document 5
consistent with the license renewal AMP from the GALL 6
report. So I think it's a bit different.
7 JUDGE TRIKOUROS: Let me read the GAL 8
report out of this and then we'll come right to it.
9 The way it appears, the AMP -- and I don't think this 10 is uncommon in license renewal where existing AMPs, 11 existing programs are just simply moved into the LRA.
12 And that seems to be the case here. So the attack on 13
-- to me it's the logic that says if A equals B and C 14 equals B, then A equals -- if A equals B and C equals 15 B, then A equals C. Okay? And logically equals B.
16 So if the AMP that we now call the current 17 licensing basis is the same AMP that is in the LRA, 18 and if one is attacking the current licensing basis 19 AMP, is one then not actually attacking the licensing 20 renewal application AMP? I'm trying to make that 21 separation. You're making a separation between those 22 two things, and I'm trying to see that separation.
23 MR. LIGHTY: My understanding is that 24 there's a slight difference between the existing AMP 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
107 and the one that will be used for license renewal, but 1
I do need to get confirmation on that from a technical 2
3 JUDGE TRIKOUROS: It doesn't say that in 4
any documentation that I've seen. I may have missed 5
it so much, but I guess I'll ask that question to Mr.
6 Wachutka.
7 MR. WACHUTKA: Your Honor, the NRC staff 8
hasn't completed its review of the license renewal 9
application yet, so the staff doesn't know that one.
10 But the staff's position is that to have a genuine 11 dispute, Petitioners have to explain why the AMP is 12 wrong, but instead of explaining why the program to 13 manage aging is wrong, they continually look backwards 14 at things they think that the PG&E should have done 15 instead of what it did. And it said that in the past 16 PG&E should have removed and tested more surveillance 17 capsules, or that in the past it should have made more 18 ultrasound inspections of welds, and in the past it 19 should have performed analyses differently.
20 But again, as we had discussed with the 21 initial assessment of the 2206 petition, all of these 22 arguments about things that happened in the past are 23 all consistent with the NRC's rules, and to the extent 24 those rules incorporate by reference industry guidance 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
108 documents, and so there's no basis here for an 1
admissible contention.
2 MS. CURRAN: Well, we would say the past 3
is prologue, and what's sauce for the goose is sauce 4
for the gander. PG&E is relying on the existing 5
surveillance program and on the results of it in order 6
to say they're going into the license renewal period 7
with a reactor vessel that has integrity and that only 8
needs some additional monitoring for the next 20 9
years, and they've done fluence calculations to show 10 that things are going to be okay for the next 20 11 years. And we're saying that it's not just the fact 12 that they missed deadlines for testing the 13 surveillance capsules, it's that they don't have good 14 data on the condition of the Unit 1 pressure vessel.
15 They just don't have it.
16 So to have an aging management plan where 17 you say they have to be able to build it on some sense 18 that they're managing something that is not going to 19 go downhill very quickly. In the license renewal 20 term, they're supposed to show how aging can be 21 managed safely over a 20-year period, and they don't 22 have anything in particular to show how they would be 23 dealing with a seriously embrittled pressure vessel, 24 which is what Dr. Macdonald thinks they have.
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109 JUDGE TRIKOUROS: That I understand, but 1
the problem we're having is the distinction between 2
the program in the LRA and the program that's in the 3
CLB. And Dr. Macdonald has basically attacked or 4
criticized, if you will, the program that's in the 5
CLB. The question is is that also the program that is 6
in the AMP? Sounds like it is. And however, there 7
was no -- other than a few small cites, there wasn't 8
any direct reference to the AMP that's in the LRA, 9
which is a problem.
10 And the other problem is, I believe, that 11 the AMP -- that once you move the CLB program to the 12 AMP, even if it's the same program, it's been declared 13 to meet the GALL report requirements. And if it meets 14 the GALL report requirements, then it cannot be 15 criticized within the guidelines as we have, or at 16 least the rules that have been defined for consensual 17 admissibility in that regard.
18 MS. CURRAN: We would disagree with that, 19 Judge Trikouros, that the determination that a program 20 is consistent with the GALL report is something that 21 is a legitimate subject of challenge and a contention.
22 JUDGE TRIKOUROS: I'd like Mr. Lighty to 23 address that.
24 MR. LIGHTY: It is a legitimate subject of 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
110 challenge and a contention. Unfortunately for the 1
petitioners, they didn't raise that challenge. There 2
is not one word in the petition or in the Macdonald 3
declaration that suggests that PG&E's AMP is not 4
consistent with the GALL report. That's one of the 5
many deficiencies in the petition, in the contention, 6
that the petitioners just haven't addressed.
7 They don't address the Part 54.21 8
requirements. Which one allegedly isn't satisfied 9
here? Why isn't it satisfied here? Why isn't an AMP 10 that's consistent with the GALL report enough to 11 satisfy those requirements? How is PG&E's program 12 allegedly different from the GALL report? None of 13 that is addressed in the contention. So we have 14 multiple overlapping deficiencies here.
15 JUDGE MERCER: Yes. Before you answer, I 16 actually had a question along these lines. I didn't 17 see anywhere in the petition where Petitioners 18 challenged whether the reactor vessel surveillance 19 program, whether that is compliant with the GALL 20 report, or anywhere that the petitioners challenged 21 that that AMP was not explained in sufficient detail 22 or didn't have enough information in order to 23 determine if it was sufficient or consistent with the 24 GALL report. Did we miss that? Is that somewhere in 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
111 there?
1 MS. CURRAN: I think we did not bring up 2
the GALL report. I was responding to something that 3
Judge Trikouros said that we disagreed with. It was 4
a theoretical thing about what's the significance of 5
the GALL report. The GALL report is a guidance 6
document. It's not a regulation. We did not address 7
the GALL report. We relied on Dr. Macdonald's expert 8
opinion regarding representations that are made in the 9
license renewal application that the current 10 monitoring program forms a basis for the AMP.
11 As long as PG&E brings that issue into the 12 license renewal application, as long as they say that 13 we're still part of the CLB that forms a foundation 14 for this AMP, then it's legitimate for us to challenge 15 whether the information that they rely on from this 16 program that's been conducted under the CLB all these 17 years is a good enough starting place for their AMP.
18 Because that's the foundation. If we want to go after 19 the house, we get to do the foundation too, not just 20 the wood on top.
21 JUDGE TRIKOUROS: The other complication 22 I think here is -- well, let me make one statement.
23 My understanding is that in NUREG-1801, it is 24 identified that if an applicant utilizes the AMP 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
112 that's in the NUREG, that that is considered an 1
acceptable AMP. And I shouldn't have said that you 2
can't criticize it, but that is the position that the 3
commission has taken on that, I believe.
4 MS. CURRAN: Well, Judge Trikouros, I 5
would just amend that a little bit to say that is the 6
staff's guidance. And the staff is a party. The 7
staff, it's not a regulation. So we can come in and 8
say we have concerns that are not addressed by simply 9
saying this AMP is consistent with what's in NUREG-10 1801.
11 JUDGE TRIKOUROS: All right. Well, so let 12 me get back to the other complication. And that is 13 that currently, Dr. Macdonald's declaration criticisms 14 are being considered under the 2.206 umbrella, which 15 is the CLB umbrella. But at the same time, there is 16 documentation as I quoted that indicates that the CLB 17 and the AMP and the NUREG are the same thing. So 18 that's what we're looking for a resolution on right 19 now.
20 MS. CURRAN: Well, if they are the same 21 thing, then, I mean, that's unequivocal that our 22 contention is admissible. And as far as the 2206 23 proceeding, the fact that we brought an enforcement 24 proceeding relating to the current operation of the 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
113 plant is irrelevant to the admissibility of our 1
contention here.
2 And just remember too that our enforcement 3
petition, initially we brought it to the Annecy 4
Commission. And the Commission referred it to the 5
staff. The staff are the same people who we think 6
were not doing a good enough job of supervising the 7
surveillance program and giving extensions willy-nilly 8
for the removal of capsule B. So those are just the 9
same people whose actions we disagree with. It 10 doesn't say anything about this license renewal 11 proceeding.
12 JUDGE TRIKOUROS: Mr. Lighty, are you 13 preparing to answer that?
14 MR. LIGHTY: Sure, there's a couple of 15 things to respond to there, I think. First of all, 16 the GALL report does note that AMPs consistent with 17 the GALL report are considered acceptable. But that's 18 not just a staff determination. The Commission has 19 explicitly said that in its orders. And those orders 20 are cited in our brief in section IV, Charlie 1. So 21 it's more than just guidance. It's explicitly 22 endorsed by the Commission for these purposes. But I 23 think the broader issue, something even if we just 24 want to step away from the CLB for a minute and 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
114 explain another reason that these arguments are out of 1
scope.
2 Let's just say that it was okay for Dr.
3 Macdonald to challenge this AMP as a proxy for the 4
license renewal AMP. Those challenges are to the 5
NRC's regulations. Those challenges are to the NRC's 6
guidance.
Those are not challenges to the 7
application. There isn't an allegation that PG&E 8
hasn't followed the rules here. It certainly has.
9 That's been confirmed over and over. It's confirmed 10 in the petition Review Board proceedings. It's 11 confirmed in the many schedule adjustments and 12 approvals that PG&E has received. Dr. Macdonald was 13 simply advocating for an entirely different regulatory 14 regime. That also is not within the scope of an 15 individual adjudicatory proceeding.
16 So setting aside, regardless of how we 17 come out on the CLB issue, there's a separate 18 independent scope problem here because the attacks are 19 to the NRC-established and codified process for 20 analyzing embrittlement, the process that PG&E has 21 faithfully followed and fully complied with all along.
22 And there are no allegations in Dr. Macdonald's report 23 otherwise.
24 MR. WACHUTKA: Your Honor, as you were 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
115 discussing about the CLB and then the AMP, well, the 1
CLB is right now. And that is the withdrawal and 2
testing of the previous capsules. And that is 3
everything that is the subject of the challenges here, 4
everything that was done in the past. The AMP relies 5
on the withdrawal and testing of capsule B, and that's 6
the future. And that AMP is explaining why 7
withdrawing that capsule will provide reasonable 8
assurance that the plant will continue to operate 9
consistent with its current licensing basis over the 10 period of extended operations.
11 So in this case, to have a genuine dispute 12 that's within scope, what the petitioners had to do is 13 they had to attack that AMP and attack why its plans 14 to withdraw on test capsule B would be inadequate.
15 But here, all they're doing is they're pointing back 16 to their old arguments about why withdrawing the 17 previous capsules was inadequate, why not doing more 18 testings was inadequate. So that's the line between 19 current licensing basis and the issues unique to aging 20 management. And we don't think they've crossed that 21 line to the aging management side 22 JUDGE TRIKOUROS: All right. Thank you.
23 MS. CURRAN: As far as when there's no 24 commitment, first of all, I think Mr. Lighty is in 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
116 agreement with us that there is no regulatory 1
requirement for withdrawal of capsules during the 2
license renewal term. And PG&E has said in its 3
license renewal term that it's going to try to 4
withdraw another capsule in 2025. And the NRC has 5
said, well, we hope you can do it. And we don't see 6
it. I think Dr. Macdonald says in his declaration, I 7
do not see a firm commitment in the license renewal 8
application to withdraw capsule B. And so that is an 9
issue. It's the can that's been kicked down the road.
10 And it's not a commitment in the license renewal 11 application.
12 JUDGE ARNOLD: Is there some requirement 13 that it be a commitment in the license renewal?
14 MS. CURRAN: There's not, Judge Arnold.
15 And that is the problem here. There was a requirement 16 in the initial license term. And the NRC issued 17 extension after extension until it finally got to a 18 year past the expiration date, 2025. Those extensions 19 were issued in the initial license renewal term and 20 not another license renewal application that vaguely 21 refers to it, but doesn't make a commitment. So 22 something that was supposed to happen in the initial 23 license renewal term never happened, has now gone off 24 in the ether. And that's an issue. That's a really 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
117 serious issue because 2002 was the last time that a 1
capsule was taken out of Unit One.
2 JUDGE MERCER: I just want to circle back 3
on the GALL report. I had asked Ms. Curran a 4
question. I want to make sure I get an answer. Is 5
there anywhere in the petition that the petitioners 6
have challenged whether this AMP, the surveillance 7
AMP, is consistent with the GALL report or that there 8
is insufficient detail or information to determine 9
whether it is sufficient or consistent with the GALL 10 report?
11 MS. CURRAN: We did not address the GALL 12 report.
13 JUDGE MERCER: Okay. And do not address 14 consistency therewith either?
15 MS. CURRAN: That's right.
16 JUDGE MERCER: Okay. Now, I wanted to 17 address an issue in contention two to see if it is an 18 issue. In the statement of the contention on page 16, 19 there's a reference to time-limited aging analysis 20 being inadequate. We've been talking about contention 21 two and we've all been talking about AMP as opposed to 22 TLAA. I just wanted to make sure, is there a TLAA 23 argument being advanced by Petitioners here? Because 24 if so, what is it, as I didn't see it, other than in 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
118 the statement of the contention?
1 MS. CURRAN: Excuse me. I'm just looking 2
over the contention.
3 JUDGE MERCER: Sure.
4 MS. CURRAN: Okay. In paragraph 11 of Dr.
5 Macdonald's declaration, he talks about TLAAs.
6 JUDGE MERCER: Yes. He mentioned TLAA as 7
a -- let's see, once to define the term and twice 8
citing from the license renewal applications use of 9
the term. But I was not able to find any challenge to 10 a TLAA in the petition or in his report. I saw the 11 words, but I didn't see any type of a challenge. I'm 12 trying to figure out, is there a TLAA aspect to this 13 contention?
14 MS. CURRAN: He says in the last sentence 15 of that paragraph, thus TLAAs depend significantly on 16 the calculations and analyses developed in the initial 17 license renewal term. So he is making a general claim 18 about TLAAs that are essential elements of an AMP that 19 they go back to the calculations and analyses that 20 were done in the initial license term. So that is the 21 connection.
22 JUDGE MERCER: But what TLAA? I don't --
23 MS. CURRAN: He's not specific. He's 24 saying that this is a general problem.
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119 JUDGE MERCER: So then how do you get 1
around the specificity element for that? I mean, how 2
does PG&E know what they're supposed to respond to or 3
the staff if he's just challenging TLAAs in general?
4 MS. CURRAN: But he cites, for instance, 5
in paragraph 13, he quotes the license renewal 6
application embrittlement analyses.
7 JUDGE TRIKOUROS: I believe the TLAA that 8
is being discussed is associated with the pressurized 9
thermal shock calculation and two other calculations 10 which I don't remember at this second. That's the 11 TLAA that's being discussed. My understanding is the 12 existing TLAA that calculates PTS and these other 13 items regarding embrittlement is moved forward into 14 the LRA. The calculations for PTS and other important 15 embrittlement calculations that are being done today 16 are also going to be done identically in the future in 17 the LRA. That's my understanding. If that's not 18 correct, someone correct me on that.
19 MS. CURRAN: Yes. So he's just saying 20 that these are a set of TLAAs that relate to pressure 21 vessel embrittlement and that rely on the existing 22 information that's been developed over the initial 23 license renewal term. That's what he's citing.
24 That's what he's concerned about.
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120 JUDGE ARNOLD: It's not a challenge to a 1
TLAA.
2 JUDGE MERCER: I'm not seeing anywhere 3
where he's calling out specifically there's something 4
wrong with this TLAA. He may say it's based upon 5
calculations that have been done over the original 6
licensing period, but I don't see anywhere where he 7
has come out and said and this information is 8
incorrect and because of that X, Y, Z or this TLAA is 9
wrong because they screwed up this and such during the 10 initial operating period. He mentions TLAAs and he 11 cites to PG&E's citation to TLAAs, but I don't see 12 anywhere where he comes out and says and the TLAA was 13 supposed to do this, but it didn't or was supposed to 14 encompass these things and it didn't include that.
15 That's what I'm looking for.
16 MS. CURRAN: He's challenging what PG&E 17 says in the license renewal application about the 18 TLAAs. So, for instance, in paragraph 13 when he's 19 talking, he quotes page 4.2-2 of the license renewal 20 application that says the current license period 21 reactor vessel embrittlement analysis that evaluate 22 reduction of fracture toughness of the DCPP Units 1 23 and 2 reactor vessel beltline materials are based on 24 predicted 40-year EOLE fluence values. And then skip 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
121 down to the end of that paragraph.
1 JUDGE MERCER: Right. I can read the 2
paragraph, but my concern is the paragraph is just 3
plopped on the page. There's no analysis. There's no 4
conclusion that I can find by Dr. Macdonald that says 5
and this part from this TLAA is deficient because, or 6
this is wrong because. I don't see that anywhere.
7 MS. CURRAN: Let me just say again that 8
the crux of Dr. Macdonald's analysis is that 9
throughout the license renewal application, you find 10 statements by PG&E saying our aging management 11 program, our TLAAs are based on our existing 12 surveillance program. This is an example. And then 13 he says in paragraph 19, this is inadequate because we 14 do not have an adequate existing surveillance program 15 on which to base these representations. That's the 16 specificity. He's quite specific about the sections 17 of the license renewal application that make these 18 representations.
19 We are relying on the existing program for 20 fluence calculations, for estimates of the degree of 21 embrittlement, for how soon do we have to test again.
22 That's what they're relying on, what they claim to 23 have done in the initial license term. And Dr.
24 Macdonald is saying that is not adequate because they 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
122 have not done an adequate job up till now.
1 JUDGE MERCER: Counsel for PG&E and 2
counsel for the staff, would you care to weigh in on 3
the TLAA issue?
4 MR. LIGHTY: Thank you, Your Honor. I 5
think you're exactly right. I don't see any specific 6
engagement with a TLAA, an explanation of which part 7
of Part 54 isn't satisfied allegedly. The reason for 8
that alleged non-satisfaction other than the vague 9
assertion that, well, you looked at information from 10 your CLB that I disagree with, that's a challenge to 11 CLB information and not a challenge to anything in the 12 LRA itself. And I think that's an important 13 distinction, not just on TLAA, but going back to the 14 AMP.
15 I do understand that the current RVAMP is 16 essentially the same as the proposed license renewal 17 AMP for the reactor vessel. But the difference, 18 again, is that what Dr. Macdonald appears to be 19 challenging is the calculations and analyses, the 20 information that came out of the original operating 21 term. That challenges to CLB information.
22 Even if the text of the AMPs are the same, 23 there's no challenge to the text of the AMPs. It's to 24 the calculations and analyses performed consistent 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
123 with the NRC's regulations that Dr. Macdonald simply 1
disagrees with. And so I think that flows through 2
both the AMP and the TLAA issue. And the TLAA issue 3
is further so vague as to be incapable of really 4
responding to it because I don't know what the 5
challenge is.
6 JUDGE MERCER: Mr. Wachutka?
7 MR. WACHUTKA: Your Honor, the NRC staff 8
just understands from this whole discussion that 9
there's no challenge to the license renewal 10 application. Current licensing basis arguments that 11 were brought previously to shut down the plant are 12 being repeated. Those arguments were sent to the 2206 13 process.
14 The 2206 process is explaining why all 15 those events in the past were the way that they were.
16 And going forward is the AMP, which is based on the 17 GALL. And the GALL report says that an acceptable AMP 18 is one that pulls a capsule that will have fluence 19 that's one to two times the fluence at the end of 20 life, which would be the 60-day period. And that is 21 pulled before the end of the 60-day period.
22 So that's what the licensing renewal 23 application actually discusses. But that discussion 24 is not challenged by Petitioners here.
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124 JUDGE TRIKOUROS:
Dr.
MacDonald's 1
declaration points to a page in the LRA. I believe 2
it's page 491, I believe, which talks about the TLAA 3
that we're discussing. The TLAA that we're discussing 4
calculates -- and it is now written in front of me, so 5
I don't have to remember it -- the neutron fluence, 6
the pressurized thermal shock, upper shelf energy, the 7
adjusted reference temperature, and the pressure 8
temperature
- limits, and that includes a
low 9
temperature/high pressure analysis. LTOP, I believe 10 it's called.
11 MR.
WACHUTKA:
Low-temperature 12 overpressure.
13 JUDGE TRIKOUROS: So he then indicated, in 14 paragraph 19 that was quoted to us, some of the 15 problems that he has with that analysis --those 16 analyses. All right. And now, it's my understanding 17 that's it. Oh. I'm sorry. There's one other thing.
18 There's additional analysis that is 19 discussed in the 2.206 document in September of '23, 20 and the current declaration by Dr. MacDonald points to 21 that. And so go look over there if you want to find 22 out more about this.
23 To my understanding, that is sort of the 24 totality of the TLAA situation that's being 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
125 criticized. Whether it's adequate or not is the big 1
question, of course.
2 MR. WACHUTKA: Right. And the staff would 3
reiterate that all of this is in the declaration that 4
we're talking about here, whereas as we stated, the 5
regulations require that this challenge be made in the 6
hearing request, in the contention itself, and there's 7
not a single reference in the hearing request.
8 JUDGE TRIKOUROS: Yeah. I think there's 9
no dispute by anybody on that.
10 JUDGE ARNOLD: Yeah. Question along the 11 same lines. 10 CFR 2.309(f)(1) gives the contention 12 admissibility requirements, and it says that these 13 must be supplied by the petition. And I'm looking at 14 your petition, and where I expect to see these things 15 specified, it says it's in the attachment.
16 Now, Ms. Curran identified the reactor 17 pressure vessel AMP as the AMP that was the subject of 18 this. And it is in fact discussed in Dr. MacDonald's 19 statement, page 6, paragraph 17. But at the same 20 time, on page 5, paragraph 16, Dr. MacDonald discusses 21 the aging management plan for vessel internals, but 22 for the reactor vessel walls.
23 So it's left to us to figure out what's 24 being challenged. The same thing occurs for the time-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
126 limiting aging analysis. Now, I want to ask a 1
question and we'll go around. Is this a problem in 2
the specification of your contention? It seems to be 3
for me.
4 MS. CURRAN: We thought that there would 5
be no purpose served by simply placing Dr. MacDonald's 6
declaration into the contention. And it was quite 7
specific about the sections that he is criticizing.
8 And so that was how we met the requirement.
9 JUDGE ARNOLD: Mr. Lighty?
10 MR. LIGHTY: It's certainly a problem 11 according to binding Commission precedent. This 12 approach is insufficient for contention admissibility, 13 and I think it's for the very reason that we're seeing 14 here today. It's just not exactly clear what's being 15 argued.
16 We're sitting here trying to figure out 17 what the contention is. That was a Plaintiff burden, 18 and it's unmet here.
19 JUDGE ARNOLD: And the staff?
20 MR. WACHUTKA: The staff agrees that 21 there's no genuine dispute here, Your Honor.
22 JUDGE MERCER: Any other questions on 23 Contention 2?
24 JUDGE ARNOLD: Yeah. I do.
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127 JUDGE MERCER: Okay.
1 JUDGE ARNOLD: Well, I'll address this to 2
Ms. Curran. Paragraph 19(b) on page 7 of this 3
declaration, Dr. MacDonald finds puzzling the staff's 4
approval of PG&E's disregard of a piece of data. I'm 5
wondering exactly what your meaning there is. Is he 6
finding that it's against some regulation or guidance?
7 Or I'm not sure what the purpose of his puzzlement is 8
in this contention.
9 MS. CURRAN: PG&E disregarded data in 2002 10 that they said they found at the time were not 11 credible. And Dr. MacDonald goes into extensive 12 detail about that in the declaration that is attached 13 to this one. But he summarized it in this one.
14 So I think he refers to section 5(a) of 15 his attached declaration. So we didn't repeat 16 everything in the other declaration. It seemed more 17 efficient to refer the reader to that. But his point 18 here is that there is data that are relied on in the 19 aging management plan who's -- or there's data that 20 are not relied on that should have been considered 21 credible and that showed embrittlement issues with 22 Unit 1.
23 JUDGE ARNOLD: Okay. Being an engineer, 24 there's never enough data. But the staff approved 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
128 this, and did they do so disregarding some guidance?
1 MS. CURRAN: Yes.
2 JUDGE ARNOLD: Okay. And that's in --
3 MS. CURRAN: That's in much more detail in 4
Dr. MacDonald's attached -- the declaration that is 5
attached to this one, which is dated September 14th, 6
2023.
7 JUDGE ARNOLD: Okay. On page 7, paragraph 8
19(c), Dr. MacDonald stated PG&E's reliance on 9
substitute data from other reactors was also 10 unreasonable. Is using embrittlement data from other 11 sister vessels an unusual practice?
12 (Off-microphone comments.)
13 MS. CURRAN: It is sanctioned by NRC. But 14 they need to be sister plants. There needs to be some 15 basis for comparing them. And Dr. MacDonald believes 16 that there was not sufficient basis for using this 17 data from the Palisades plant.
18 JUDGE ARNOLD: On page 17 of the petition, 19 you reference the erroneous assumption that 20 embrittlement accrues in a non-Markovian manner. Is 21 there any regulation or guidance that says this 22 assumption was improper?
23 MS. CURRAN: This was based on Dr.
24 MacDonald's expert opinion.
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129 JUDGE ARNOLD: Okay. Did the assumption 1
that PG&E make -- was it an uncommon assumption, or 2
are many plants assuming unreasonably --
3 (Off-microphone comments.)
4 MS. CURRAN: My understanding is that it's 5
a complex issue and that it hasn't made its way into 6
regulations. It's a concept that -- the system has a 7
memory of what went on before.
8 JUDGE ARNOLD: Thank you.
9 Now I'm going to ask PG&E essentially some 10 of the same questions. You used data from another 11 plant, saying it was a reasonable surrogate for your 12 unit. Did you follow the guidance available in 13 selecting that plant?
14 MR. LIGHTY: Yes, Your Honor. Actually, 15 use of sister plant data is required by the 16 regulations and there is NRC guidance that explains 17 how to translate that information. And so PG&E fully 18 followed that process.
19 JUDGE ARNOLD: Would you happen to know 20 where in the regulations that requirement is?
21 MR. LIGHTY: I do not. I will get that 22 and let you know. As to the issue of discounting not-23 credible data, I do want to note that that data was 24 not disregarded. It's a very different thing --
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130 determining that data is not credible is through a 1
scientific process. That process is outlined in 2
Regulatory Guide 1.99, and that is the process that 3
PG&E followed.
4 JUDGE ARNOLD: And the use of the non-5 Markovian embrittlement, do you know of -- is that 6
common within the industry, that -- is your modeling 7
inconsistent with other plants?
8 MR. LIGHTY: No. It is consistent with 9
NRC requirements.
10 JUDGE ARNOLD: With requirements?
11 MR. LIGHTY: With the guidance.
12 JUDGE ARNOLD: Just one other thing. The 13 removal of samples in testing -- now, I know 14 typically, when you remove it, the fluence the sample 15 has received is greater than the fluence for the 16 average vessel so that you're looking at some future 17 operation.
18 Now, the last sample you removed that you 19 consider to be good data -- the fluence it received 20 was characteristic of what time in that vessel life?
21 MR. LIGHTY: So it went through the entire 22 initial operating period of 40 years. And so that's 23 why Capsule B was not withdrawn because it was not 24 required for the initial operating term.
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131 (Off-microphone comment.)
1 MS. CURRAN: We would just disagree that 2
withdrawal of Capsule B was not required for the 3
initial license renewal term. And that's discussed in 4
Dr. MacDonald's September 2003 expert report. This is 5
a capsule that was put in as part of the initial 6
surveillance program. It was approved as in the 7
initial operating term, and it was only after PG&E 8
decided to apply for a license renewal that the NRC 9
and PG&E started to talk about it as if it was related 10 to licensing renewal and could be postponed 11 indefinitely.
12 JUDGE ARNOLD: That sample is going to be 13 removed in 2025?
14 MS. CURRAN: Well, that's -- you know, 15 there's been several attempts to remove it that were 16 unsuccessful. The latest request for an extension 17 said they will try, and the NRC said okay to try. And 18 that's all there is. There's no, this is the end; 19 this is the ultimate deadline. The can just keeps 20 going down the road.
21 JUDGE ARNOLD: Question for staff. Will 22 there come a time where you will tell PG&E that that's 23 it, that it needs to be tested? Or is this something 24 that could be in there forever?
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132 MR. WACHUTKA: Your Honor, this isn't 1
something that the Licensee just has to try. The 2
current withdrawal schedule that's approved by the 3
staff says that this capsule has to be removed in 4
either fall of 2023 or spring of 2025. This isn't 5
something -- 2025 didn't happen later. That was 6
always what the schedule change stated.
7 And then the AMP that we would approve as 8
part of approving license renewal application -- that 9
is what would solidify this, and then the AMP, if it's 10 consistent with the GALL report, says that before the 11 end of the period of extended operation, a capsule has 12 to be withdrawn that has one to two times the fluence 13 at end of life.
14 And so that's the requirement from the 15 GALL. And the GALL is something that the Commission 16 has said if you meet the GALL, then you meet our 17 regulations.
18 JUDGE ARNOLD: So PG&E doesn't have to 19 make a commitment to remove it since there's a 20 requirement to remove it.
21 MR. WACHUTKA: Yes. They'd be required by 22 their aging management program that would be approved 23 as part of licensing renewal application approval.
24 JUDGE ARNOLD: Okay. I don't have 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
133 questions on that.
1 JUDGE MERCER: Any other questions on 2
Contention 2?
3 All right. Before we move on to 4
Contention 3, I will throw open to Counsel if you 5
briefly -- and I emphasize briefly -- have any 6
additional comments on Contention 2 that you think may 7
be brought to our attention now versus in the final 8
argument, you now have the ability to do that.
9 Ms. Curran?
10 MS. CURRAN: I'm sorry that I don't have 11 a copy with me of the letter that the NRC wrote to 12 PG&E allowing the most recent extension of time for 13 removal of the capsule, Capsule B. But my core 14 recollection is there's no hard and fast deadline and 15 that there's wiggle room if there are still problems.
16 I could be wrong. I'd be very happy to 17 send the letter to the Licensing Board just to 18 complete the record as to where things stand with 19 Capsule B. But my recollection is there's no firm 20 deadline for removing Capsule B. There's no firm 21 deadline for removing Capsule B in the license renewal 22 application.
23 MR. WACHUTKA: Your Honor, I can give you 24 the ML number for that letter. It's ML-23199A312.
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134 MS. CURRAN: 23 --
1 MR. WACHUTKA: 199A312.
2 MS. CURRAN: Thank you.
3 JUDGE ARNOLD: Okay. And that letter 4
specifies it will be withdrawn --
5 MR. WACHUTKA: 2023 or 2025. Yes, Your 6
Honor.
7 JUDGE MERCER: Mr. Lighty, anything final?
8 MR. LIGHTY: Yes, just briefly on the 9
regulation regarding determination of credibility and 10 use of sister plant data is 10 CFR Section 50.61.
11 And I would just sum up here that the 12 criticisms that we're hearing today are all about 13 processes that have already occurred, CLB information.
14 And the basis for those criticisms is a disagreement 15 with the NRC's regulations and guidance.
16 And so we have, in addition to the lack of 17 a genuine dispute in the petition or in the 18 declaration, the basis of the alleged disagreement is 19 simply outside the scope of this proceeding on 20 multiple levels.
21 JUDGE MERCER: Mr. Wachutka?
22 MR. WACHUTKA: Your Honor, the NRC staff's 23 position is that record reflects that Contention 24 Number 2 does not meet the contention admissibility 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
135 requirements for a genuine dispute or for scope. It 1
has to do with current licensing basis issue, and it 2
is proper in the 2206 petition process before the 3
staff where the Commission put it. And there is 4
nothing further for the Board to rule on in these 5
matters.
6 JUDGE MERCER: Thank you, Counsel.
7 Turning now to Contention 3, Coastal Zone 8
Management Act, we read Contention 3 as claiming that 9
PG&E has not demonstrated compliance with the Coastal 10 Zone Management Act, or CZMA, because it did not 11 include with the license renewal application a Coastal 12 Zone Management Act concurrence from the California 13 Coastal Commission.
14 Is that a
correct reading of the 15 contention, Ms. Curran?
16 MS. CURRAN: Yes.
17 JUDGE MERCER: Now, before we proceed 18 further, as formulated in the petition, Petitioners 19 were challenging Commission regulations, specifically 20 10 CFR 51.45(b), (c), and (d). But that aspect has 21 been withdrawn; is that correct?
22 MS. CURRAN: That's correct.
23 JUDGE MERCER: So, turning back to the 24 sole and only aspect of Contention 3, the Coastal 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
136 Management Zone Act compliance issue, PG&E identified 1
the Coastal Zone Management Act in its environmental 2
report and included ELRA a copy of the consistency 3
certification that it submitted to the California 4
Coastal Commission.
5 And a cite, Ms. Curran, in the petition at 6
footnote 37 seems to confirm that PG&E was required to 7
submit nothing more than the consistency certification 8
that it submitted to the application -- or that it 9
submitted with the application.
10 So my question to you, Ms. Curran, and 11 that cite that you all put in footnote 37 says, quote, 12 applicants must submit to both the NRC and to the 13 state's certification that the proposed activity 14 complies with the enforceable policies in the state's 15 program. If the Coastal Zone Management Act applies 16 to the project, the NRC cannot issue its license or 17 permit until the state has concurred with the 18 applicant's certification of a coastal consistency 19 determination.
20 So my question, Ms. Curran, is what part 21 of the Coastal Zone Management Act requires PG&E to 22 have submitted anything more on the Coastal Zone 23 Management Act with the application than it already 24 has submitted? What is the failing on the part of 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
137 PG&E on the Coastal Zone Management Act?
1 MS. CURRAN: The failing of PG&E is to 2
receive approval from the California Coastal 3
Commission of its certification.
4 JUDGE MERCER: Now, I understand that the 5
Coastal Zone Management Act requires, ultimately, 6
before license renewal, a consistency determination 7
either by the California Coastal Commission or the 8
Secretary of Commerce.
9 Are Petitioners taking the position that 10 that determination has to be included with the 11 application? And if so, where is that? Because I did 12 not find that in the statute or any of the regs 13 implementing the statute.
14 MS. CURRAN: I'm not aware of a regulatory 15 requirement, other than the NEPA requirement, for 16 including a copy of the certification. But the 17 statute does require it. And more, our position is 18 that their application cannot be proved without the 19 consistency determination.
20 I think that the arguments against 21 admissibility of this contention are that it's 22 premature and that we haven't reached a state yet 23 where it's clear that it's not going to be approved.
24 We feel that we absolutely -- we have an ironclad 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
138 obligation to raise issues as soon as we can identify 1
them.
2 JUDGE MERCER: I understand that, Ms.
3 Curran, but we have to justify in our decision -- if 4
we admit Contention 3, we have to justify that PG&E 5
hasn't done something it was supposed to do. And as 6
I read the Act and the implementing regulations, it's 7
done everything it was supposed to do at this point in 8
time.
9 And so how do we justify admitting 10 essentially what would be a placeholder contention for 11 the possibility that the staff would ultimately end up 12 with a
license renewal without a
consistency 13 determination?
14 MS. CURRAN: We're not relying on the 15 NRC's regulations regarding the content of license 16 applications.
17 JUDGE MERCER: I understand that.
18 MS.
CURRAN:
We're relying on an 19 independent statute, a statutory requirement. Now, 20 it is evident right now, because of the letter that 21 was written by the CCC to PG&E in December, that the 22 CCC does not consider the certification submitted by 23 PG&E to be adequate.
24 That is what we're relying on for our 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
139 contention, but a statutory requirement that is 1
essential for approval of the license renewal 2
application has not been satisfied. And that's the 3
basis for our contention.
4 JUDGE MERCER: All right. So, just so I 5
understand, the fact that the California Coastal 6
Commission has come back and said to PG&E, you 7
submitted this certification; we require additional 8
information before we start our review time -- that's 9
what the Petitioners contend PG&E somehow has not 10 complied with some requirement, because the Coastal 11 Commission has come back and said, we need more 12 information?
13 MS. CURRAN: The status at this point is 14 that the certification, which has been submitted, has 15 been rejected.
16 JUDGE MERCER: Well, I don't know that I 17 agree with you that it's been rejected. As PG&E 18 stated in its answer, there are provisions dealing 19 with essentially the rejection, which is the 20 California Coastal Commission at the end of its time 21 period says no.
22 And a
situation provided in the 23 regulations that allows the California Coastal 24 Commission to come back and say to PG&E, we need more 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
140 information before we can start our time to review 1
this -- and that's how I read that letter that was 2
submitted because it specifically came out and said, 3
our time isn't starting; you need to give us more 4
information. I didn't read anywhere where it said, 5
well, no, you're not getting your consistency 6
determination from us.
7 So I don't know that I agree that the 8
California Coastal Commission has denied it or 9
rejected it. What I'm trying to find is, what is it 10 that the statute requires that hasn't been done that 11 would allow us to admit this as a contention? Because 12 as I look at the status of things, PG&E has done 13 everything it was supposed to do. It's just working 14 with the California Coastal Commission toward 15 ultimately getting that consistency determination.
16 MS. CURRAN: What we're trying to protect 17 against here is, had we waited till later in this 18 process if there's still problems with this coastal 19 certification and we put in a contention, we would 20 have thought in all likelihood we would get a ruling, 21 you should have come in when you knew there was a 22 problem at the very beginning. At the very beginning, 23 you knew that this certification was not being 24 accepted by the CCC. And now you've waited too long.
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141 This is a common experience of interveners 1
and petitioners in NRC licensing cases. If you, the 2
Licensing Board, want to rule that we're premature, we 3
would appreciate guidance on what a timely contention 4
would look like because this is an ever-plaguing 5
problem is to know -- to be early enough to these 6
issues when it's really not clear what's going to 7
happen.
8 JUDGE MERCER: Well, I appreciate that 9
response. And one of the things that I am learning 10 after my recent appointment here is I'm not able to 11 give legal advice anymore. So we can't give you any 12 advice on that.
13 But what I can do is ask a question that 14 I had for the staff, which is, Mr. Wachutka, if we 15 don't admit this contention, what is Petitioner's 16 remedy? Should PG&E ultimately not get that 17 consistency determination and somehow the license 18 renewal comes through, what should Petitioners do?
19 MR. WACHUTKA: Your Honor, Mr. Murphy is 20 going to address Contention 3 for the staff.
21 JUDGE MERCER: Okay. Sorry, Mr. Murphy.
22 Go ahead.
23 MR. MURPHY: Yes, Your Honor. And so 24 there's a previous Commission decision which kind of 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
142 explains the correct remedy in that kind of a 1
situation. I'll provide the citation for that 2
Commission decision.
3 So, within power station Unit 3, there was 4
COI-12-14 decided in 2012. And so, in that case, 5
essentially, the Board took an approach which is kind 6
of sought here by Petitioners. They decided to keep 7
the proceeding open despite not having any live 8
contentions with a set schedule, including some 9
milestones such as the supplemental environmental 10 impact statement and the safety evaluation report, to 11 allow Petitioner to submit additional contentions as 12 information became available.
13 But in that case, the Commission said, no, 14 that's not the correct approach; the Petitioner needs 15 to pursue the motion to reopen, which is found in 10 16 CFR 2.326. And so that would be the appropriate 17 remedy if that hypothetical situation came about.
18 And there's two things I'd like to 19 mention, too, just to kind of head off that idea that 20 the staff would go ahead and issue the licenses 21 without California Coastal Commission concurrence or 22 in the face of a rejection.
23 And so the first thing is there's a 24 presumption of administrative regularity that the 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
143 staff will willfully and properly carry out its 1
duties. And also, two, the staff faced a pretty 2
similar situation like that in a recent license 3
renewal proceeding.
4 So, for Surry Power Station, Units 1 and 5
2, the record of decision was Mike Lima 20091 Lima 6
985.
7 JUDGE MERCER: Sorry. Can you repeat 8
that?
9 MR. MURPHY: Yes, Your Honor. So Surry 10 Power Stations, Unit 1 and 2, Mike Lima 20091 Lima 11 985. And so, in that case, the Applicant had not 12 obtained the concurrence from the appropriate state 13 agency by the time the staff completed its safety 14 evaluation report in the supplemental environmental 15 impact statement.
16 But the staff held off until the Applicant 17 did obtain that before it issued the renewed licenses.
18 And so there's not just a presumption but also a 19 recent example where the staff complied with the CZMA 20 in that sense.
21 JUDGE MERCER: Counsel for PG&E, would you 22 like to weigh in on the -- don't feel like you have 23 to, but I want to give you the opportunity to weigh in 24 on what the remedy would be if, in fact, we don't 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
144 admit this contention. And not that we're saying the 1
staff would violate and act not in conformity, but 2
what would happen if, in fact, that happened?
3 MR. LIGHTY: Sure. And I think the staff 4
is on the right track. The regulations in 10 CFR 5
2.309 Charlie provide for -- may file the contentions.
6 Conditions can be filed later if new information 7
arises that presents materially new information, such 8
as the theory that the NRC chose willfully to simply 9
violate the CZMA, because that's essentially what the 10 Petitioners are asking the Board to admit, a 11 contention on that hypothetical future potential 12 material dispute where the NRC purposefully chooses to 13 violate a statute.
14 But if that were to happen, they certainly 15 could come in with a new contention under 2.309(c).
16 JUDGE MERCER: And just so I'm clear, as 17 I looked at this particular issue, I mean, there was 18 a Commission decision in a PG&E/Diablo Canyon case, 19 COI-16-11, where the Commission specifically noted 20 that PG&E noted the NRC could not issue any licenses 21 for Diablo Canyon without concluding that license 22 issuance would be consistent with the Coastal Zone 23 Management Act, which required the issuance of a state 24 CSMA consistency certification.
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145 And the staff, in its Standard Review 1
Plans for Environmental Reviews for Nuclear Power 2
Plants Supplement 1, operating license renewal draft 3
report for comment, NUREG-1555 Supplement 1, Revision 4
2 -- very long titles -- Section 3.2.1, page 3-3, 5
specifically addresses Coastal Zone Management Act and 6
says federal agency cannot issue a license or permit 7
until the state concurs.
8 So, with that background, Ms. Curran, is 9
there anything in the petition that you have raised 10 that would lead us to believe that the staff is going 11 to ignore its requirements and act in derivation of 12 the law?
13 MS. CURRAN: I just don't want to speculate 14 about the future. And what we would really like is a 15 ruling on our contention by the Licensing Board that 16 would -- we want to protect ourselves. If we raise 17 this issue in the future for some reason or other, I 18 don't know what it might be, but we want protection 19 against any argument that we could have and should 20 have raised something when we became aware of it.
21 JUDGE MERCER: I hear that, and I 22 appreciate that and understand that. But my question 23 is a little bit more specific. Because there is a 24 presumption of regularity that attaches to the actions 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
146 of government agencies, we have to look and say 1
absolute clear evidence to the contrary -- we presume 2
that the staff is going to act and improperly 3
discharge its official duties.
4 My question to you is, is there any clear 5
evidence to the contrary that you've put in the 6
petition that you want to bring to our attention that 7
might allow us to get over that presumption of 8
regularity?
9 MS. CURRAN: No, we have not presented 10 evidence of irregularity by the staff. I would want 11 to ask Mr. Murphy if he could give that North Anna 12 site one more time.
13 MR. MURPHY: Yeah. So It's North Anna 14 Power Station, Unit 3, COI-12-14, and also 75 NRC 692.
15 And it was 2012.
16 MS. CURRAN: Thank you.
17 JUDGE MERCER: Do either of my colleagues 18 have any questions about Contention 3?
19 JUDGE ARNOLD: No.
20 JUDGE ARNOLD Because we are running late 21 in the day, I'm going to skip the conclusion on 22 Contention 3 from Counsel, and we'll wrap that into 23 the closing.
24 But before we get to the closing, I just 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
147 wanted to note that we do have a request by the CEC to 1
participate as a nonparty. I saw no oppositions to 2
that hit the docket.
3 But, Ms. Curran, do the Petitioners have 4
any opposition to the CEC participating as a nonparty?
5 MS. CURRAN: No.
6 JUDGE MERCER: Mr. Lighty, same question 7
to you on behalf of PG&E.
8 MR. LIGHTY: No concerns.
9 JUDGE MERCER: And, Mr. Wachutka, same 10 question to you on behalf of the staff.
11 MR. WACHUTKA: No, Your Honor.
12 JUDGE MERCER: Thank you, Counsel.
13 All right. Before we close out the 14 argument today, as I've mentioned a couple times, 15 we're going to offer Counsel up to five minutes to do 16 any closing argument or closing summary to us. We 17 have listened very intently to all of your arguments 18 today, so please don't feel a need to repeat things 19 that we have gone over.
20 But, Counsel for Petitioners, we would 21 offer you the five minutes first, followed by Mr.
22 Lighty, followed by Mr. Wachutka. And then, Ms.
23 Curran, we'll go back to you with three minutes for 24 rebuttal.
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148 If you don't want to use your five 1
minutes, if you don't want to use all of your five 2
minutes, please don't feel the need to take all five 3
minutes. But if you do opt to take those, Mr. Welkie 4
will start the monitor on green. It will then go to 5
yellow at three minutes and then will count down to 6
red. When it goes red, we'd ask you to please stop.
7 So, Ms. Curran, would you care for five 8
minutes?
9 MS. CURRAN: Judge Mercer, I don't have 10 five minutes. I just would like to say that the 11 Petitioners have raised some extremely serious issues 12 with respect to the safe operation, whether operation 13 of Diablo Canyon will be safe during the license 14 renewal time.
15 We appreciate the degree to which you have 16 shown close attention to our concerns, and we hope 17 that you will grant us a hearing on these very serious 18 issues. There are many people, members of our 19 organizations and other members of the public, who 20 will be depending on you to help us get at some of 21 these serious issues and really air them. Thank you.
22 JUDGE MERCER: Thank you, Ms. Curran.
23 Mr. Lighty?
24 MR. LIGHTY: Thank you, Your Honor. Just 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
149 one wrap-up comment on the final contention, and then 1
I'll give just a brief closing.
2 We were discussing the process and the 3
precedent regarding premature contentions. And I 4
think that the Licensing Board's recent decision in 5
the Turkey Point SLR proceeding, LBP-24-03 at pages 29 6
to 30, talks about a similar circumstance.
7 There, it was where there was a required 8
consultation that must occur during the license 9
renewal application review process, something that 10 goes on into the future after the application is 11 submitted. And the Board there found that a challenge 12 to that process when the process had not yet completed 13 was premature. And there are citations to other 14 Commission precedent there that may be helpful.
15 But just to close very briefly, we've seen 16 the many overlapping reasons that all three of the 17 contentions are inadmissible here today as part of 18 this license renewal proceeding. But we want to 19 reiterate that Diablo Canyon is operating safely 20 according to every inspection, every review that is 21 done by the regulator. PG&E has followed regulatory 22 requirements.
23 Petitioners are certainly free to raise 24 safety objections. And the fact that their 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
150 contentions here may not be admissible in the license 1
renewal process does not mean that no one is 2
considering their concerns. They are just different 3
processes, different avenues, and different pathways 4
for them to raise those safety concerns.
5 PG&E takes safety very seriously. It's 6
its top priority. And so we don't want anyone to have 7
the misunderstanding that by determining that a 8
contention is inadmissible, that concerns are not 9
being considered, because they certainly are by both 10 PG&E and by the regulator.
11 And for that reason, we ask you to deny 12 the petition.
13 JUDGE MERCER: Thank you, Counselor.
14 Mr. Wachutka or Mr. Murphy, whoever's 15 going to be concluding, you have five minutes if you 16 would care to use it.
17 MR. WACHUTKA: Yes, Your Honor. Contrary 18 to the NRC's license renewal framework, Petitioners' 19 arguments and contentions 1 and 2 effectively assert 20 that Diablo Canyon's current licensing basis is unsafe 21 and not that any one of the many AMPS or TLAAs in this 22 license renewal application will somehow not 23 sufficiently maintain that current licensing basis.
24 Therefore, these two contentions are not 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
151 within the limited scope of this license renewal 1
proceeding. Instead, such arguments are appropriately 2
addressed through the NRC's ongoing regulatory 3
process. And this has, in fact, already been 4
recognized by the Commission, which referred the same 5
arguments as those raised in Contentions 1 and 2 to 6
the NRC's 10 CFR 2.206 enforcement process, where they 7
are being reviewed by the relevant staff experts right 8
now, who will issue a written response. And the 9
Commission may intervene in this process at its 10 discretion.
11 Nothing remains of these arguments to be 12 addressed in this license renewal proceeding. And 13 with respect to Contention 3, there is not a live case 14 or controversy that could give rise to the Board 15 granting a hearing in this instance.
16 If any new facts were to arise, the 17 regulations already address this. There's the 10 CFR 18 2.309(c) requirements for new or amended contentions 19 and the 10 CFR 2.326 requirements for motions to 20 reopen.
21 And so, taken together, Your Honor, since 22 there has been no admissible contentions pled, the 23 Board should deny the hearing request.
24 JUDGE MERCER: All right. Thank you, Mr.
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152 Wachutka. Thank you, also, Mr. Murphy, for your 1
contributions as well.
2 Ms. Curran, I promised you three minutes 3
for rebuttal to anything that was brought up by Mr.
4 Lighty or Mr. Wachutka. You have --
5 MS. CURRAN: I have nothing further.
6 Thank you.
7 JUDGE MERCER: Thank you.
8 Before we close out, I want to let Counsel 9
know I did receive my email today, a written limited 10 appearance statement from an individual who purports 11 to live in, I believe, Santa Barbara, California, that 12 has been forwarded to -- for docketing. I believe it 13 has been docketed.
14 But I just wanted to let everyone know 15 that that was received. It should be there. If you 16 didn't receive email notice of it, please check the 17 docket. It should be there under the written limited 18 appearance statements.
19 I also want to thank you, Counsel, for 20 answering our questions and providing us with your 21 thoughts and arguments today. We truly appreciate 22 your preparation, your hard
- work, and your 23 professionalism here today. It helps make our job so 24 much easier.
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153 We will consider your arguments and your 1
thoughts in making our decision on the hearing 2
request, which we intend to issue timely. On behalf 3
of the entire Board here, I would like to thank our 4
law clerk, Ms. Newman, for her assistance in the 5
matter, including preparing for the oral argument.
6 We also extend our sincere thanks to Mr.
7 Walkey and to Mr. Docker, our IT specialists, to Ms.
8 Ellis, our program analyst, who you may have met 9
before the argument began, and to Ms. Keller, our 10 litigation support assistant, for their technical and 11 administrative support.
12 Finally, we thank our court reporter, Mr.
13 Owen, for his work here today. And we want to extend 14 a special thank-you to all of the experts who have 15 been here, and also to thank all the members of the 16 public who have tuned in, either on the webcast or the 17 listen-only line, because transparency and openness is 18 a cornerstone of the NRC's proceedings. And we thank 19 you for taking advantage of that.
20 Counsel, I'd ask you to please remain here 21 in the hearing room for any clarifying questions from 22 the court reporter. And with that, we are adjourned.
23 (Whereupon, the above-entitled matter went 24 off the record at 4:55 p.m.)
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