ML24179A075
| ML24179A075 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 06/22/2024 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| RAS 57048, NRC-2831, 50-323-LR-2, 50-275-LR-2 | |
| Download: ML24179A075 (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 us via the 7
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. That transcript will be available on the 4
docket when it is completed.
5 As I noted earlier, we have provided a 6
public listen-only telephone line, and a webcast of 7
the oral argument. For those attending by way of the 8
telephone line, please note that it is just a listen-9 only telephone line. Any request to raise a hand will 10 not be seen, and will not be honored.
11 The same holds true for those viewing the 12 webcast. Just as those who are attending in person 13 here, the public can listen to the argument, but 14 cannot participate. Any member of the public who does 15 attempt to interrupt or otherwise disrupt the oral 16 argument, will be removed from the hearing room.
17 Now before we begin the argument, a brief 18 explanation for why we're here today.
19 Pacific Gas & Electric, or PG&E, has 20 submitted a license renewal application, or LRA, to 21 continue operating Units 2 and 3 at the Diablo Canyon 22 Nuclear Power Plant in Avila Beach, California, for 23 another 20 years after their current license 24 expiration dates of November 2, 2024, and November 26, 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 2025, respectively.
1 The Atomic Energy Act and the Nuclear 2
Regulatory Commission's Regulations provide an 3
opportunity for interested stakeholders, which include 4
members of the public, public interest groups and 5
organizations, and other government entities, to seek 6
a hearing to challenge renewal of a nuclear operating 7
license.
8 The essence of such a hearing is to 9
adjudicate health and safety, environmental, and 10 common defense and security concerns raised by the 11 license renewal application.
12 But before such a hearing occurs, the 13 interested stakeholder must establish that they have 14 standing to challenge the license renewal application, 15 and that they've included in their petition an 16 admissible contention, which means essentially that 17 the stakeholder has identified something material that 18 is incorrect in the license renewal application, or 19 something material that should be in the LRA, but is 20 not. The oral argument today will address these two 21 things.
22 Three non-profit groups have filed a Joint 23 Petition to Intervene and Oppose PG&E's application.
24 San Luis Obispo Mothers for Peace, who I will refer 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
7 as Mothers for Peace; Friends of the Earth, who I will 1
refer to as Friends; and Environmental Working Group, 2
who I will refer to as Group. Collectively we will 3
refer to them as petitioners. Petitioners jointly 4
raised three contentions challenging certain aspects 5
of PG&E's license renewal application. We'll get into 6
the specifics of each contention later in the oral 7
argument.
8 We do note that the California Energy 9
Commission has filed a request to participate in this 10 proceeding as a party. But as a non-party, it did not 11 submit any proposed contentions.
12 One thing that we would like to stress is 13 that the board does not work for or with the Nuclear 14 Regulatory Commission staff in reviewing license 15 renewal applications. This board is charged with 16 determining independently whether petitioners have 17 standing, and whether the contentions they have 18 submitted are admissible.
19 Before we turn to questions on standing 20 and contention admissibility, I'm going to ask counsel 21 to introduce themselves, any co-counsel, and their 22 clients. As this is being broadcast by way of listen-23 only phone line and webcast, I ask that counsel remain 24 seated and use the microphone so that you can be 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 picked up.
1 Counsel for petitioners, would you please 2
identify yourself and your co-counsel and your 3
clients?
4 MS. CURRAN: Good afternoon. My name is 5
Diane Curran. I representative San Luis Obispo 6
Mothers for Peace, and I will be speaking on behalf of 7
the three petitioners, Friends of the
- Earth, 8
Environmental Working Group, and Mothers for Peace.
9 With me today at counsel table to my left 10 is Caroline Leary, who is general counsel to 11 Environmental Working Group. I just want to mention 12 to the board that Ms. Leary has to leave at quarter to 13 3:00, and so she'll bow out but I'll be the one doing 14 the talking, so it shouldn't affect anything.
15 To my right is Dr. Peter Bird, our seismic 16 expert. And directly behind me is Dr. Digby 17 Macdonald, who when we get to Contention 2, Dr.
18 Macdonald will come up and sit next to me.
19 JUDGE MERCER: You'll be playing musical 20 chairs.
21 MS. CURRAN: We'll be playing musical 22 chairs.
23 And he is going to be assisted by his 24 wife, she's also a scientist, but not on this case.
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 And her name is Mirna Urquibi-Macdonald.
1 JUDGE MERCER: All right.
2 MS. CURRAN: Thank you.
3 JUDGE MERCER: Thank you.
4 And counsel for PG&E, please introduce 5
yourself, co-counsel, and your client.
6 MR. LIGHTY: Thank you, Your Honor.
7 Ryan Lighty, with Morgan Lewis & Bockius, 8
appearing on behalf of Pacific Gas & Electric Company.
9 Joining me at counsel table today is my 10 partner, Timothy Matthews, also with Morgan Lewis.
11 And behind us in the gallery are 12 individuals from Pacific Gas & Electric Company, 13 Maureen Zawalick, Tom Jones, Jeff Bachhuber, Jennifer 14 Post, Philippe Soenen, and Jearl Strickland, as well 15 as Brian Hall from Westinghouse.
16 JUDGE MERCER: All right, thank you, 17 counsel.
18 Counsel for staff, please introduce 19 yourself, any co-counsel, and your client.
20 MR. MURPHY: Good afternoon, Your Honor.
21 This is Jeremy Wachutka, counsel for the NRC staff.
22 I'm joined by co-counsel Ian Murphy, and in the 23 audience are various staff members including Brian 24 Harris, Kim Conway, On Yee, Jeffrey Rikhoff, and 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
10 couple others, Your Honor.
1 JUDGE MERCER: All right, thank you very 2
much.
3 As we now move into the argument portion 4
of today's proceedings, please I would like to let all 5
counsel and clients, and client representatives, know 6
the board has in fact read all of the pleadings that 7
have been submitted.
8 We are prepared to ask questions to ensure 9
that we have a fulsome grasp of the arguments that are 10 being advanced by each participant, so that we can 11 make an appropriate decision on standing and 12 contention admissibility.
13 We do not intend this to take the form of 14 an appellate argument where each side gets a certain 15 allotted amount of time. Instead, we plan to ask 16 questions of various counsel on specific issues as we 17 go through each of the contentions.
18 We do plan to provide time at the end of 19 each contention for counsel to address any particular 20 issues they believe need to be addressed that we have 21 not covered in the questioning. But please know we 22 also intend to provide 5 minutes to each counsel at 23 the end of the argument for a closing or summary 24 argument.
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11 We also will, as we will start with 1
counsel for applicant, or I'm sorry, counsel for 2
petitioners, we will provide you with some rebuttal 3
time as well, after PG&E and the staff counsel have 4
provided their summary.
5 As I noted earlier, the purpose of the 6
oral argument is to address whether petitioners have 7
standing, and whether they have included in the 8
petition at least one admissible contention.
9 We turn now to the question of standing.
10 The board has an independent obligation to 11 ensure that at least one petitioner has standing. The 12 three petitioners here as we understand it, all are 13 organizations seeking to establish representational 14 standing. Is that correct, Ms. Curran?
15 MS. CURRAN: Yes.
16 JUDGE MERCER: Now, Mr. Wachutka, we 17 understand the staff does not oppose standing of any 18 three of the petitioners. Is that a correct 19 understanding?
20 MR. WACHUTKA: That's correct, Your Honor, 21 and Ian Murphy will be discussing standing in 22 Contention 3 for the NRC staff.
23 JUDGE MERCER: All right, thank you, Mr.
24 Murphy.
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 MR. MURPHY: Sure.
1 JUDGE MERCER:
Mr.
- Lighty, as we 2
understand it, PG&E does not oppose standing of 3
Mothers for Peace or Friends, but does oppose the 4
standing of Group, both representational standing as 5
well as its request in the alternative, for 6
discretionary intervention. Is that correct?
7 MR. LIGHTY: Yes, that's correct, Your 8
Honor.
9 JUDGE MERCER: Okay.
10 We have received and reviewed the 11 submissions and believe that there are three areas of 12 significance as it relates to standing that we would 13 like to address, two of which we have flagged for 14 everyone in our order scheduling oral argument.
15 The first of those is the issue of 16 membership. As you all know, Group noted on page 5 of 17 its
- petition, that it is not a
membership 18 organization, but that it does represent the interests 19 of its supporters. Group also contends in its 20 submission that it satisfies the representational 21 standing set forth in the United States Supreme Court 22 decision Students for Fair Admissions, Inc. versus 23 President and Fellows of Harvard College.
24 Ms. Curran, in reading that case, though, 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 it seems to me that the organization before the 1
Supreme Court there was one with members who 2
specifically were identified. Meaning that if that 3
case is going to be of any help, it's going to be by 4
way of application of the Hunt case described by the 5
Supreme Court. Is that your understanding as well?
6 MS. CURRAN: We think that the Hunt case 7
was decided in the '70s and the Students case 8
basically clarified that what is meant by member or 9
supporter, they're kind of interchangeable terms. And 10 there's some basic indicia. One is, does the member 11 on whose standing the group standing is based, support 12 the group financially? Does the group have purpose 13 that relates to the interest of this member or 14 supporter? Does the group communicate with the member 15 or supporter; let them know what they're doing? And 16 does the member or supporter have a reasonable chance 17 to affect what the group does? And we've demonstrated 18 that's true for Environmental Group -- Working Group.
19 I think it was true for the student organization.
20 So what I think the Supreme Court was 21 saying there was, you don't have to have a membership 22 organization in the traditional sense where you vote 23 the board of directors in and out, and that's how you 24 control the outcome of what, of the decisions 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
14 organization makes. There is other ways to provide 1
input to affect the direction of the organization.
2 JUDGE MERCER: Okay. And I agree with 3
you, the Supreme Court in the Hunt case essentially 4
boiled down its analysis to indicia of membership.
5 And there, it identified three of those 6
specifically. That all of the growers and dealers in 7
Hunt did three things. One, they elected the members 8
to the commission.
- Two, they financed the 9
commission's activities. And three, they were the 10 only ones who served on the commission.
11 Knowing or hearing that you've identified 12 a couple others, I'm more comfortable looking 13 specifically at the three that the Supreme Court 14 identified. And I didn't see those particular indicia 15 identified in the petition or in Mr. Cook's 16 declaration. And I'm wondering where those three 17 indicia might be identified, specifically as it 18 relates to the members or the growers and dealers 19 alone supporting the financial activities of the 20 organization.
21 Here in the reply, it seems as though only 22 61 percent of the organization's finances come from 23 its supporters. So there would be financial support 24 coming from somebody other than the 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
15 So I'm just wondering if you can help me, 1
or point to me, where we can find evidence or facts to 2
support that indicia for Environmental Working Group?
3 (Pause.)
4 MS. CURRAN: Well, in our reply at page 3, 5
we state that Linda Parks, who is one of the 6
supporters who has authorized EWG to represent her, is 7
one of EWG's financial supporters.
8 Now, the fact that EWG gets support from 9
other sources doesn't, I think the important thing is 10 that the majority of their support comes from 11 supporters like Ms. Parks.
12 JUDGE MERCER: Okay.
13 MS. CURRAN: And then in terms of 14 communication, I think it's described in Mr. Cook's 15 declaration that EWG communicates regularly with its 16 supporters. And let me just find the exact statement.
17 (Pause.)
18 MS. CURRAN: In paragraph 3 he says, they 19 send out, EWG sends out monthly emails, uses the 20 emails to keep their supporters informed of the status 21 of legal proceedings in which their interests are 22 represented.
23 (Pause.)
24 MS. CURRAN: And in the hearing request, 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 it represents the interest of its members. And the 1
members who, the other members who wrote stated that 2
they asked EWG -- for instance in paragraph 1 of 3
Patricia Coleman's declaration, EWG regularly asks 4
about supporters' concerns and opinions, in order to 5
guide it in establishing organizational goals. I am 6
pleased with EWG's work and believe EWG generally 7
represents my interests and concerns.
8 And I think that's the same statement in 9
each of the EWG members or supporters' declarations.
10 JUDGE MERCER: Okay.
11 MS. CURRAN: And did you have another 12 factor that you wanted to?
13 JUDGE MERCER: I was just looking at the 14 three factors that were identified by the Supreme 15 Court in the Harvard case.
16 Does counsel for PG&E wish to weigh in at 17 all on that particular issue?
18 MR. LIGHTY: Yes, Your Honor.
19 I think what we just heard is that the 20 first mention of any of EWG's supporters being a 21 financial supporter came in the reply pleading.
22 As the commission has noted recently in 23 CLI-20-07, quote, our precedent explains it is not 24 acceptable in NRC practice for a petitioner to claim 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 standing based on vague assertions and when that 1
fails, to attempt to repair the defective pleading 2
with fresh details at a later juncture. And that's 3
exactly what EWG has done here, by trying to supply 4
information regarding the indicia of membership in its 5
reply pleading. And so for that reason, we think 6
that's improper as a matter of law.
7 JUDGE MERCER: Counsel for the staff, I 8
know you haven't opposed the Environmental Working 9
Group's standing, but I wanted to offer the 10 opportunity for you to weigh in, if you so choose.
11 MR. MURPHY: Yes, Your Honor.
12 In terms of the Hunts three factors which 13 you've identified, I think the only additional thing 14 to note. So NRC staff agrees with the position taken 15 by the petitioners. And I would point out that in 16 terms of the financial support factor, Hunt didn't 17 establish a set number, or a set amount to financing 18 that has to be provided by its members or supporters.
19 And so, I think that's an important factor here.
20 It is a good point that PG&E makes that 21 they didn't provide financial information in that 22 additional declaration.
23 However, just looking to the Students for 24 Fair Admissions case in general, and looking at 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
18 facts and the structure of that organization, there's 1
a lot of analogies that I think you can draw between 2
the two organizations, Group and also Students for 3
Fair Admissions.
4 And so, in that case, just refresh the 5
memory, so the four members being represented were 6
four high school students who had been denied 7
admission. They had filed declarations stating they 8
had voluntarily joined the organization. Here we have 9
declarations from supporters stating they support 10 Group. They supported its mission, which we also have 11 here. They received updates about the status of the 12 case from the organization's president, which we also 13 have here. And also, they had an opportunity for 14 input and direction on the organization's case, and 15 were being represented in good faith.
16 And so, just drawing the two, comparing 17 the two organizations, that's where the staff sees a 18 lot of similarities. And so, for that reason, that's 19 why the staff agrees with the petitioner's position.
20 JUDGE MERCER: All right, thank you.
21 MR. LIGHTY: And, Your Honor, if we could 22 briefly go back to the germaneness element. I'm not 23 sure if you were going to speak to that separately, or 24 if you wanted to talk about that now?
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19 JUDGE MERCER: That was going to be the 1
next element.
2 MR. LIGHTY: Okay, very good. Thank you.
3 MS. CURRAN: Before we go back, I'm sorry 4
to interrupt but I just want to finish on this 5
question of whether we added some, a significant 6
amount of information on our reply and shouldn't have 7
done that.
8 JUDGE MERCER: Sure, I was actually, that 9
was the next thing on my list to come back to you.
10 MS. CURRAN: Oh, okay.
11 JUDGE MERCER: To ask about that.
12 Because as I understand some Commission 13 precedent in the Georgia Tech research reactor case, 14 the Commission actually will allow for supplemental 15 declarations to be filed.
16 And what I was going to request, Ms.
17 Curran, is if you by Friday, May 31 of this year, have 18 a supplemental declaration submitted for Ms. Parks 19 that attests to her financial support for 20 Environmental Working Group so that we have that in 21 the record, that would be appreciated.
22 MS. CURRAN: Will do, thank you.
23 JUDGE MERCER: Thanks.
24 Now, and I appreciate the case that 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
20 cited, Mr. Lighty, and we'll take a look at that. I'm 1
not indicating any pre-judgment of this particular 2
issue. But just so that we've got everything we have, 3
we need, or may need in front of us, we're asking that 4
that be submitted.
5 Now relatedly on this issue of 6
Environmental Working Group's standing, in our order 7
scheduling oral argument, we had asked counsel to be 8
prepared to talk about a 1982 licensing board decision 9
that essentially equated supporters, or financial 10 supporters, with members. And it seems as though 11 based on the reply and the representation of Ms.
12 Curran, that there is in fact at least one of the 13 declarants who is a financial supporter.
14 Mr. Lighty, I'd like to turn to you and 15 give you the opportunity to address this particular 16 issue from PG&E's perspective. Essentially, the 17 rationale applied in that 1982 licensing board 18 decision, which seems to be fairly on point to the 19 case that we have before us today.
20 MR. LIGHTY: Sure, thank you, Your Honor.
21 So in LBP 82-25, the Indian Point case, 22 the board used essentially a three-pronged test to 23 determine whether a supporter could be the equivalent 24 of a member.
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21 The first contention, or rather the first 1
condition was that the sponsors must have indicated a 2
desire to be represented by the organization. And 3
that condition appears to be satisfied here. But the 4
other two do not.
5 The second condition was the financial 6
support condition, and as I mentioned, we think that 7
was untimely submitted. It was information that 8
should have been included in the petition.
9 I'm not certain about the Georgia Tech 10 research reactor case that you may be referring to.
11 It may be a licensing board decision that is rather 12 old. And I would note again, CLI-20-07 is a 13 Commission decision, fairly recent. And so, I would 14 encourage the Board to take a look at that.
15 But I think perhaps the most important of 16 the three conditions is the last one. And it provides 17 that a non-membership organization must have quote, a 18 well defined purpose which is germane to the 19 proceedings. But that condition isn't satisfied here.
20 In Indian Point, the licensing board found the 21 condition was satisfied as to the Union of Concerned 22 Scientists, or UCS, because quote, the organizational 23 objectives of UCS in regard to nuclear power are 24 clearly defined and well advertised, end quote.
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22 But the board contrasted that with the 1
circumstance in Health Research Group versus Kennedy, 2
in which Public Citizen did not satisfy the 3
germaneness condition.
4 And as the licensing board explained, 5
Public Citizen is an umbrella public interest group.
6 It had wide-ranging objectives. It allocated funding 7
to a diverse set of consumer advocacy interests. And 8
that's exactly the case here.
9 We need only look to the Group's website 10 to see that it is far more similar to Public Citizen 11 than to UCS. The page titled Our Mission mentions 12 many topics from sunscreen to pesticides. It 13 discusses chemical safety and agricultural laws. It 14 provides links to a tap water database and a cosmetic 15 database. But it does not even once mention anything 16 related to nuclear power. Unlike UCS, its objective 17 in regard to nuclear power is not well-defined.
18 And, if we look at another page on the 19 website titled Funding and Reports, under the heading 20 of Where Your Donations Go, we can see that Group 21 devotes its funding to a diverse range of consumer 22 advocacy areas, from toxics to food and agriculture.
23 Only 8 percent of its budget is devoted to energy, and 24 it is unclear what small fraction of that may be 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 devoted to nuclear power.
1 So in paragraph 2 of the standing 2
declaration of Group president Ken Cook, he admits 3
that EWG engages in policy advocacy on quote, a broad 4
range of issues, and explains that EWG's work on 5
energy matters is focused on rate design and access to 6
solar.
7 So at bottom, Group is an umbrella public 8
interest group, much more like Public Citizen. And, 9
it does not satisfy the third condition of the Indian 10 Point test. And for that reason, we believe it 11 doesn't qualify for representational standing.
12 JUDGE MERCER: Okay, thank you.
13 Before we get to counsel for petitioner, 14 counsel for staff, would you care to address the issue 15 of the 1982 licensing board decision at all?
16 MR. MURPHY: Yes, Your Honor.
17 The staff's position is that despite 18 having a very broad purpose admittedly, Group, that 19 does not preclude Group from, from the purpose of 20 Group being germane to this proceeding.
21 That is all, Your Honor.
22 JUDGE MERCER: Okay, thank you.
23 Ms. Curran, would petitioners care to 24 respond to the arguments advanced by Mr. Lighty on 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 behalf of PG&E?
1 MS. CURRAN: I'd just like to refer the 2
board to Mr. Cook's declaration again, where he says 3
that in paragraph 2, EWG is a 501(c)(3) non-profit, 4
non-partisan organization that works to empower people 5
to live healthier lives in a healthier environment.
6 And then reading down a little bit it 7
says, EWG engages in research and policy advocacy on 8
a broad range of issues related to state and federal 9
energy policies, climate change, renewable energy, 10 toxic chemicals, food and agriculture, water and air 11 pollution, and public health. Certainly, radioactive 12 contamination relates to public health. And chemical 13 contamination, this is a longstanding interest of 14 Environmental Working Group.
15 And, I just want to point out that the 16 cases that we found that reject hearing requests based 17 on a broad statement of purpose, the ones that we 18 looked at all related to an organization that sought 19 to represent its own interests, and not those of its 20 members. And so, the Palisades case cited by PG&E in 21 opposing EWG's standing talked about how far away 22 Palisades was from the City of Chicago, where this 23 organization had its headquarters, and said, you just 24 can't show us how this, it was I think a license 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 transfer case, how is that going to affect this 1
organization in Chicago.
2 JUDGE MERCER: Well, I think to be fair to 3
PG&E, they were citing that and correct me if I'm 4
wrong, they were citing that in response to what they 5
thought was Environmental Working Group seeking 6
organizational standing, or standing on its own 7
behalf, not necessarily addressing the germaneness 8
principle that we're talking about now.
9 MS. CURRAN: Yes.
10 JUDGE MERCER: Do you have anything 11 further --
12 MS. CURRAN: Well, we did clarify that 13 though. The terminology is, we certainly did not 14 intend to assert that EWG had standing all on its own 15 without its supporters. We attached declarations from 16 the 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
26 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. So SFFA was Students for Fair Admission. It 7
was an organization seeking to represent students who 8
were suing colleges over admissions policies. And the 9
Hunt case was, it involved a state agency that 10 represented apple growers, and was seeking to 11 represent apple growers in a case involving apple 12 growing.
13 Those two examples are directly on point 14 for germaneness. The organization is clearly aligned 15 with the individuals it's trying to represent.
16 The delta that the licensing board was 17 trying to point out in Indian Point in distinguishing 18 Public
- Citizen, was that it's an umbrella 19 organization. It seeks to represent a whole bunch of 20 things. And it doesn't have a clearly defined 21 singular purpose like SFFA or the Hunt case. And I 22 think that's an important distinction.
23 JUDGE MERCER: Thank you.
24 I think now we've addressed the first two 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 of the issues regarding standing. I want to turn to 1
the last one, which is Group's alternative request for 2
admission by way of discretionary intervention.
3 We all know that the standard for 4
discretionary intervention is in the regulations. And 5
there are six elements that need to be addressed.
6 We also in our order scheduling the oral 7
argument, requested that counsel be prepared to 8
discuss those elements, especially in light of the 9
fact that it is a joint petitioner here who raises no 10 contention not already raised by another petitioner.
11 Before we get into the specifics of that, 12 I just ask Mr. Lighty, does PG&E take the position 13 that Group did not address those six elements in its 14 petition?
15 MR. LIGHTY: Group did not address all six 16 of the elements. It did address a few of them in the 17 petition, in very terse conclusory sentences. But it 18 did mention a couple of elements.
19 JUDGE MERCER: Now, I will agree with you 20 that the manner in which it addressed them was 21 succinct, let's put it that way.
22 But as I took a look at the six elements 23 in the regulations and compared them to the petition, 24 I saw all six elements on page 6 being addressed.
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28 There were two bullet points and then a 1
concluding paragraph. The first bullet point seemed 2
to address three; the second bullet point seemed to 3
address two; and then that concluding paragraph seemed 4
to address the last of the six elements.
5 If you, are you aware sitting there of 6
which element you believe Group did not address in its 7
petition?
8 MR. LIGHTY: Well, I think regardless of 9
trying to connect the dots between the statements and 10 the specific criteria, I think there's sort of a 11 broader problem in that those statements don't support 12 the criteria in the way that the Commission has 13 envisioned that discretionary standing would work.
14 And if you look at our brief at page 16, 15 where we're talking about the element of contributing 16 to developing a sound record, a conclusory sentence 17 doesn't really go to the point of showing that that 18 element is satisfied.
19 JUDGE MERCER: Sure, I get that part of 20 PG&E's argument. The part that threw me a bit was 21 where it said that there, that Group did not address 22 all six of the elements.
23 And I thought that it did, and so I wanted 24 to give you the opportunity to point out to me 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
29 one PG&E thought was not addressed, so that I could 1
make sure that we were actually taking a look at 2
everything specifically.
3 MR. LIGHTY: Yes, I would say we did not 4
see all six addressed in the petition itself, but I 5
would have to go back and --
6 JUDGE MERCER: Okay.
7 MR. LIGHTY: -- and try to connect the 8
dots to the six.
9 JUDGE MERCER: All right.
10 Moving on from that, we'll turn to you, 11 Ms. Curran. My question to you is, how are those six 12 discretionary intervention elements met, especially in 13 light of three different things.
14 One being that Group raises no contention 15 other than those raised by two other capable 16 organizations represented by capable
- counsel, 17 including yourself. That it also has the ability to 18 provide public comment on the draft SEIS; and three, 19 that it has joined in a request to the Commission 20 raising what appears to be an identical seismic risk 21 concern that's been referred for a 2206 proceeding.
22 In light of those three things, how are 23 those six discretionary intervention elements met by 24 Group?
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30 MS. CURRAN: Well, these issues that we're 1
raising are very, at least the first two contentions 2
are technical, complicated, and they have both 3
extensive legal and factual components to them.
4 It's quite an undertaking and I really 5
appreciate the compliment, but right now there are 6
three lawyers representing these three petitioners, 7
plus we have two experts. And we are going up against 8
a federal agency and a large corporation which is very 9
well financed, and it's something of a David and 10 Goliath situation. And we think that our best chance 11 of really doing a good job of creating a sound record, 12 and sound legal arguments, would be to have a full 13 complement of attorneys and experts working on this.
14 Whether EWG has experts that know 15 something about seismic risks or the integrity of Unit 16 1 pressure vessel, these are people who can help us 17 evaluate arguments, evaluate testimony, help us phrase 18 it in a way that people can understand it.
19 Ms. Leary is an excellent lawyer, and is 20 a huge help to the other two lawyers on this case.
21 I'm sorry that Hallie Templeton couldn't here today.
22 She's on leave right now.
23 But this is a big undertaking, and the 24 fact that EWG doesn't have any contentions of its own 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 actually contributes to the efficiency of their 1
participation.
2 They're not going to be adding anything in 3
particular; they're going to be helping the other two 4
parties to do the best possible job of presenting the 5
issues that we all agree are important.
6 And I just want to add that in the Pebble 7
Springs decision, it is, the Commission did give the 8
licensing board discretion to consider what are the 9
particular features of each case, and consider how 10 their discretion might be best applied.
11 JUDGE MERCER: Thank you.
12 Mr. Lighty, do you care to respond?
13 MR. LIGHTY: Yes, Your Honor, I've had a 14 chance to look at the six criteria again, and I can 15 articulate the ones that aren't addressed on page 6 of 16 the petition.
17 So if we look at the first bullet, the 18 first sentence alleges that EWG would contribute to 19 the development of a sound record. That's the first 20 criterion, and it is addressed.
21 But the next two. So, the nature of the 22 petitioner's property financial interest. In the 23 first bullet after the semi-colon, it talks about the 24 property financial and public 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
32 environmental interests of its supporters, not the 1
organization itself. And so we contend that it hasn't 2
addressed that.
It's seeking discretionary 3
intervention as an organization.
4 And so too with the third criterion of the 5
possible effect of any decision. It doesn't talk 6
about any effect of a decision in this proceeding on 7
Group's interests, and it doesn't say what those 8
interests are. It speaks only of its supporters' 9
interest.
10 And then finally, I think the third factor 11 that weighs against discretionary intervention hasn't 12 been addressed at
- all, about inappropriately 13 broadening the scope of the proceeding.
14 JUDGE MERCER: Okay.
15 And, not to leave you out, but counsel for 16 the staff, do you have anything to add on the last 17 issue as it relates to standing?
18 MR. MURPHY: Yes, Your Honor.
19 And so the issue of discretionary 20 standing, the staff agrees with PG&E's position. And 21 so looking at the six factors, it does appear that 22 they articulate at least one thing for each of the six 23 factors.
24 However, just going factor by factor. So 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
33 the first extent, they originally, they expected to 1
assist and so they articulate that Group has expertise 2
in public health and environmental experience in 3
California. However, they don't tie that to the 4
proposed contentions at issue here. None of which is 5
one of those two areas of expertise, allegedly.
6 And also looking at the availability of 7
other means. And so, as identified, the two other 8
groups are jointly filing the same petitions 9
identified by Group. Counsel points out that it would 10 increase efficiency, however, that's not one of the 11 factors that you find in 2.309, and so that's not one 12 of the things identified specifically for the decision 13 maker to consider. And, let's see. And that is all, 14 Your Honor.
15 JUDGE MERCER: Okay, thank you.
16 And Ms. Curran, we'll come back to you as 17 you have the burden on this. We'll give you the final 18 word to anything that has been addressed by Mr. Lighty 19 or I am so sorry, I've forgotten your last name.
20 MR. MURPHY: Murphy, Your Honor.
21 JUDGE MERCER: Murphy. I apologize, Mr.
22 Murphy. If you'd care to address anything there.
23 MS. CURRAN: Yes, a couple points. First 24 of all, in terms of the nature and extent 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
34 petitioner's property, financial, or other interests, 1
that's discussed in the standing declarations of the 2
members. And I think it's pretty straightforward that 3
this group is involved at the behest of its 4
supporters, in order to protect their interests in a 5
safe and healthful environment.
6 If the Diablo Canyon license is extended 7
on the terms that have been proposed now, they're 8
concerned about their health and safety. The 9
organization's interests are also the interests of 10 their members.
11 And second, on the issue of what I meant 12 by efficiency, I was thinking of that last criterion 13 that whether a petitioner's participation will 14 inappropriately broaden or delay the proceeding.
15 The scope of these contentions is going to 16 be determined by what's pled here. Unless some new 17 information comes up that warrants amendment of our 18 contentions, that certainly wouldn't be the doing of 19 Environmental Working Group all by itself. It would 20 be some agreement by the petitioners that some 21 additional issue ought to be raised, or ought to be 22 amended.
23 It still is true that the expertise of the 24 Environmental Working Group, including Ms. Leary'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
35 expertise, will help us to do a better job; will help 1
us to meet your deadlines on time because there is 2
more of us to work on them. It's going to result in 3
a better hearing record.
4 And finally, in terms of the availability 5
of other means to protect petitioner's interest. It 6
just seems so obvious to us that there isn't any other 7
venue for challenging this license renewal application 8
that has real legal meaning. Because the commenting 9
on the draft EIS is, responding to those comments is, 10 it's not something that we can ever appeal to the U.S.
11 Court of Appeals.
12 We have to go through the hearing process 13 in order to get judicial accountability for the NRC 14 staff's decisions on whether they adequately reviewed 15 comments on an EIS. The only venue, that is, the only 16 road to the U.S. Court of Appeals, is through this 17 hearing process. Otherwise, it's within the staff's 18 discretion to completely disregard our comments.
19 And a 2206 petition is even more so. That 20 is well established to be entirely within the 21 discretion of the agency, and to appeal it is 22 extraordinarily difficult. You have to meet some 23 very, very high standard that basically the agency has 24 completely run off the rails.
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36 So, as far as we in our experience at the 1
NRC and the federal judicial system, this is it. This 2
is the proceeding. This is the only place where any 3
group can address deficiencies in the license renewal 4
application and get, get relief where there's some 5
ability to hold the agency accountable.
6 JUDGE MERCER: Okay, thank you.
7 Before we move on from standing, do either 8
of my --
9 JUDGE ARNOLD: Yes, I have a question for 10 Mr. Lighty.
11 What practical diffidence do you see in 12 the proceeding, depending upon if Group participates 13 as an admitted intervener, or if Group participates 14 only on an informal advisory capacity to the two 15 intervening groups? What's the practical difference?
16 MR. LIGHTY: Your Honor, I see no 17 practical difference in whether Group participates at 18 all. There are three contentions, and they are being 19 advocated by other groups, so there really is no 20 delta.
21 JUDGE ARNOLD: Thank you.
22 JUDGE MERCER: Any other questions?
23 JUDGE ARNOLD: No.
24 MS. CURRAN: Can I answer that question?
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37 JUDGE ARNOLD: Sure.
1 MS. CURRAN: Thank you.
2 I
think it's really important for 3
Environmental Working Group if they are going to be 4
involved in this proceeding, they want to be a party, 5
and they want to be able to be included in any appeal 6
to the federal courts.
7 So if they are reduced to the capacity of 8
a informal advisor, that's not going to be possible 9
for them, and they want to participate in this in 10 order to protect the interests of their members.
11 JUDGE MERCER: Just a follow up on that.
12 It strikes me that if there was a sincere 13 effort, or a sincere desire for them to protect the 14 interests of their members, and they had a choice 15 between assisting you informally and not doing 16 anything, wouldn't they opt to assist you informally?
17 MS. CURRAN: We haven't gotten to that 18 point, but we're really, we think this is the right 19 moment to be advocating for maximum participation.
20 We really don't want to have to address 21 that question. And it's partly because this group 22 wants to be able to say to its members, we really 23 advocated for you. We participated in this 24 proceeding, and if we needed to, if we need to, we're 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 going to take it to federal court. That's our 1
commitment to our members and 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 standing that you'd 14 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 21 you.
22 Before we get into the specific issues of 23 contention admissibility, I want to ask a question of 24 all counsel. But I'm going to turn over here whether 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 it's to Mr. Wachutka or Mr. Murphy, I'm not sure who.
1 As you all know, on Thursday of last week, 2
the NRC commissioners voted to adopt a new final rule 3
that will govern both initial license renewal 4
proceedings, like this one here, and the first 5
subsequent license renewal proceedings.
6 That approval included a revised generic 7
environmental impact statement, or GEIS, and an 8
updated Table B1. Among other things, the updated 9
GEIS in the Table expanded the number of environmental 10 issues to be considered on a specific plant basis, or 11 subject 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, is there any impact that any of the 17 counsel see on this proceeding due to the adoption of 18 that new final rule? And if so, what is that impact?
19 I don't want us to go half way down the 20 road and then we find out that there's an impact and 21 we've all got to turn around and restart.
22 So, I'll start over here with counsel for 23 staff. If you'd like to address that, and then we'll 24 move to the right.
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40 MR. WACHUTKA: Yes, Your Honor.
1 The NRC staff's understanding of 2
petitioner's arguments with regard to environmental 3
issues, is that they point to pages 4-61 and 4-62 of 4
the Environmental Report. And those pages discuss the 5
environmental issues of design basis accidents, and 6
severe accidents. And the staff's understanding of 7
the 2024 GEIS and the proposed revisions to the 8
relevant rule, is that both of those are remaining as 9
small impacts.
10 So design basis accidents right now under 11 the NRC's rules, have a small, generic impact. And 12 for severe accidents, the rule also says that the 13 impacts of those at all plants are small. And so, for 14 both of those we think that a challenge to them right 15 now is a challenge to the NRC's rules which is 16 impermissible, and would also be an impermissible 17 challenge to the rules following this rulemaking, as 18 well.
19 The other issue that petitioners bring up 20 is they point to Appendix G of the Environmental 21 Report, which has to do with severe accident 22 mitigation alternatives analysis. And the rule now 23 and the rule as it will happen, will also say that a 24 SAMA analysis is required one time for the first 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 license renewal, and is not required for future 1
license renewals. So we think nothing will change as 2
a result of the proposed rulemaking, Your Honor.
3 JUDGE MERCER: Okay, thank you.
4 Mr. Lighty?
5 MR. LIGHTY: Thank you, Your Honor.
6 I think even at a higher level, there's 7
really no change here. Once the rule is published and 8
becomes effective, there is still a one year 9
compliance window that will extend far into the 10 future.
11 But for our current purposes, PG&E elected 12 to prepare its Environmental Report under the current 13 regulations as are required. And so, those are the 14 regulations that govern the sufficiency and adequacy 15 of the Environmental Report now and going forward.
16 JUDGE MERCER: Okay.
17 Ms. Curran?
18 MS. CURRAN: Thank you.
19 The new GEIS would affect only Contention 20
- 1. And we are aware and it's certainly been true that 21 the Commission's regulations before, under the 22 previous rule, a previous GEIS, in Table B1, the 23 environmental impacts of accidents including severe 24 accidents were considered category 1. I think there 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 is an exception made for severe accident mitigation 1
alternatives. But my understanding of that rule was 2
there was, with respect to the actual impacts of 3
severe accidents, the NRC intended to codify them as 4
small. And that hasn't changed.
5 It also doesn't affect the legal basis for 6
Contention 1 being within the scope of this license 7
renewal proceeding, which is Chairman Hanson's 8
statement to Senator Padilla. That's documented in 9
our hearing request that seismic issues would be 10 reviewed in the license renewal proceeding. And we 11 take that to mean the broadest possible 12 interpretation. Safety, environmental impacts.
13 This was something said by the chairman on 14 behalf of the whole Commission to Senator Padilla, and 15 we're relying on that.
16 JUDGE MERCER: All right, thank you, 17 counsel, for that. And, I apologize that we didn't 18 alert you in advance. But given the recency of it and 19 the fact that we're here today, it just, there wasn't 20 sufficient time to get something out.
21 So, turning -- just checking the time.
22 Okay, turning to the issue of contention 23 admissibility. Petitioners raised three contentions 24 in their petition, and we're going to take them in 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
43 order that they've raised them.
1 The first contention is, as we read it, 2
related to seismic risk. Now, we read Contention 1 as 3
raising both safety and environmental contentions 4
regarding seismic risk.
5 Ms. Curran, would you please tell us a) 6 are we correct that there's a safety and an 7
environmental component? And if so, what is the 8
safety aspect contention, and what is or are the 9
environmental aspect contention or contentions?
10 MS. CURRAN: Okay, in a nutshell?
11 JUDGE MERCER: Well.
12 MS. CURRAN: Well, maybe I'll start with 13 the nutshell and then --
14 JUDGE MERCER: Sure.
15 MS. CURRAN: -- move on from there.
16 JUDGE MERCER: Yes.
17 MS. CURRAN: There is a safety and an 18 environmental component to the contention.
19 JUDGE MERCER: Okay.
20 MS. CURRAN: The safety component is that 21 the risk of a seismic, of seismic, severe seismic 22 accident is unacceptable at Diablo Canyon.
23 As a matter of fact, we think this applies 24 not just to the license renewal term, but currently 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 there is a significant risk that the PG&E has 1
significantly underestimated seismic core damage 2
frequency. And this is supported by Dr. Bird's 3
declaration.
4 And it's that seismic core damage 5
frequency estimate that also undergirds the finding in 6
the Environmental Report, that the environmental 7
impacts of external events, of seismic external 8
events, are small. So, it's a dual contention; 9
they're related.
10 JUDGE MERCER: All right, so just so I 11 make sure I understand. The safety aspect deals with 12 the severe, the risk of severe seismic accident is 13 unacceptable based on Dr. Bird's analysis.
14 And the environmental aspect of that 15 relates to the view that PG&E included in its 16 submission that the impacts would be small versus what 17 you, the petitioners claim based on Dr. Bird should be 18 large.
19 MS. CURRAN: Yes, that's correct.
20 And just and I think this is included in 21 our petition that Dr. Bird is an independent 22 scientist. He doesn't say what we tell him to say.
23 He studied this issue and he came up with these 24 probability numbers. And we looked at them and said 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 this is serious. This is something that under NRC 1
guidelines, raises red flags for current operation.
2 That was why simultaneously with the 3
hearing request, we filed an emergency enforcement 4
petition. We filed it with the commissioners and they 5
referred it to the staff.
6 JUDGE MERCER: Sure.
7 MS. CURRAN: But this, so in other words, 8
if a safety risk is so significant that it puts it 9
into the category of we must consider emergency 10 actions under our safety regime, it automatically, 11 necessarily means an environmental risk that is 12 significant.
13 JUDGE MERCER: Understood.
14 And so, I just want to make sure that I 15 understand, and that the Board understands what the 16 scope of that environmental contention or 17 environmental aspect is. And it's just as it relates 18 to the impacts, and we'll get into the substance of 19 this, but just so that we understand what the general 20 high-level assertion is, based on Dr. Bird's analysis, 21 the impacts of a severe earthquake would be large, 22 rather than the small that's characterized in the 23 Environmental Report submitted by PG&E?
24 MS. CURRAN: That's correct. And by 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 impacts, we mean both the potential for earthquakes 1
and the consequences of earthquakes.
2 JUDGE MERCER: Okay. All right, and do 3
you want to address the, well, let me ask this, this 4
question, then I'll turn it over to Judge Trikouros, 5
who has a question or two.
6 In a footnote in the petition, there was 7
a reference to SAMA. And, PG&E and the staff raised 8
an issue that if there was a SAMA contention, it was 9
vague. And in the reply, there was nothing from the 10 petitioners indicating that yes, there was a SAMA 11 contention. Is there a SAMA contention that's being 12 raised here?
13 MS. CURRAN: No. In the sense that our 14 understanding of the concept of SAMAs in the NRC's 15 Generic Environmental Impact Statement in the rule is 16 that the NRC starts with a finding that environmental 17 impacts of severe accidents are small. All accidents 18 are small.
19 And then the question is, if they're 20 small, are there marginal improvements that would be 21 cost-justified?
22 And we disagree with that basic premise 23 that the impacts are small. So, it's premature to 24 start talking about SAMAs. We have to start with 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
47 finding of no significant impact, which ordinarily 1
would be insulated from challenge, but is no longer 2
insulated by virtue of the Chairman's statement.
3 JUDGE MERCER: Okay, all right.
4 Judge Trikouros, do you want to ask yours?
5 JUDGE TRIKOUROS: Yes. Well I'd like to 6
start out with a big picture question, as well.
7 Primarily to Ms. Curran, initially.
8 In footnote 12 or your Statement of the 9
Contention, you do indicate that the, the risk is 10 current and ongoing. Those are your words.
11 My question is, if the risk is current and 12 ongoing, and a petition has been filed with the 13 Commission in that regard, then how does this 14 proceeding, or how does this issue, fit into this 15 license renewal proceeding?
16 MS. CURRAN: It doesn't fit under the 17 standard rules that have been in effect since 1991.
18 It is true that the seismic risk here is not unique to 19 license renewal term, that is the rationale for the 20 NRC refusing to consider, say, design issues in the 21 license renewal term. But that's not what the 22 Chairman said to Senator Padilla. He said we are 23 going to look at updated information in the course of 24 our license renewal review. I'm paraphrasing, I 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
48 have the quote in front of me, but that's saying we're 1
going to do something different for Diablo Canyon, and 2
that's what we're resting on.
3 JUDGE TRIKOUROS: So you're saying, if I 4
can summarize, that apart from the words of 5
Commissioner Hanson, the issues we are discussing here 6
with respect to seismic risk really do not belong in 7
the license renewal proceeding?
8 MS. CURRAN: Yes, that's right, which is 9
why it's so important, and why this is just a very 10 individual situation here. These reactors were going 11 to close, the first one was going to close this year, 12 the second one next year, and then there was a 13 decision to reverse that, and the legislature wanted 14 to be sure and have PG&E do an updated seismic 15 assessment. Then Chairman Hanson says we're going to 16 look at the updated seismic information in the course 17 of our license renewal review. We want to get the 18 benefit of that from the NRC.
19 JUDGE TRIKOUROS: All right. All right, 20 I'm going to proceed with a couple of additional 21 questions so we can move forward. Again, in the 22 statement of the contention you say that the plant 23 should be basically shut down until the risk of an 24 earthquake-related core damage accident can be 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 significantly reduced. What do you mean by that? How 1
does one significantly reduce the risk of an 2
3 MS. CURRAN: Well, we're assuming that 4
there are modifications that could be made to the 5
plant that would anticipate the significant degree of 6
shaking that takes place in an earthquake.
7 JUDGE TRIKOUROS: So you are referring to 8
SAMA?
9 MS. CURRAN: Or design upgrades.
10 JUDGE TRIKOUROS: That is the purpose of 11 SAMA, with respect to not only seismic risk but to all 12 risk, all severe accident risk. Other than SAMA --
13 MS. CURRAN: Well, I would just differ 14 with you a little bit on that in the sense that with 15 SAMAs, you start with the assumption that the plant is 16 safe and you're adding some marginal improvements to 17 make it safer, but that's not the situation here. The 18 plant isn't safe. And so we're talking about, we're 19 not at SAMA. SAMA's kind of those marginal beneficial 20 things that if it makes sense to spend the money, 21 let's make it safer, but we know it's adequately 22 protected now. We're saying to you that we have 23 evidence this plant is not safely, it's not adequately 24 protected now. There is a risk of a serious 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
50 earthquake and the risk is much higher than the 1
acceptable level.
2 JUDGE TRIKOUROS: Well, I'd still like to 3
understand what you mean when you say modifications 4
and what context those modifications are in. I can 5
understand them within the realm of SAMA because 6
SAMA's purpose is to come up with modifications that 7
would reduce the risk of a severe accident earthquake, 8
and specifically where SAMAs that have core cooling, 9
containment cooling, spent fuel cooling, you know, 10 alternate power, all of that, that's seismically 11 protected that would mitigate pretty much any 12 earthquake. But they do cost a significant amount of 13 money. But when you refer to modifications, you're 14 referring to some other category of modifications and 15 I don't know where they would come from, where the 16 impetus to implement those modifications would come 17 from.
18 MS. CURRAN: The impetus would come from 19 the Atomic Energy Act, the requirement to provide 20 adequate protection to public health and safety, using 21 necessary measures. And necessary measures are not 22 subject to cost-benefit analysis; they are imposed 23 because the NRC considers them to be essential to 24 provide a minimum level of protection to public health 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
51 and safety. That's why there were complaints that our 1
contention was a mix of the Atomic Energy Act and 2
NEPA, and that is correct.
3 I think that the way the NRC applies NEPA 4
to accidents is, first of all, in two ways. One is to 5
say if the plants are adequately protected, if the 6
design is adequate, if the plant complies with the 7
regulations, adequate protection gives us the 8
equivalent more or less of no significant impact of 9
any kind. And then there's a potential for a beyond 10 design basis accident, but it's so small that we don't 11 have to do anything more than look at some cost-12 beneficial ways to reduce it a little more. But the 13 Atomic Energy Act really -- the other part of the 14 Atomic Energy Act that, I guess going back to that 15 idea that no significant impacts is something that NRC 16 finds where it can find that it is adequate 17 protection, and we don't think that the NRC has got a 18 basis to find adequate protection here, because PG&E 19 is underestimating the risk of a serious seismic core 20 damage accident.
21 JUDGE TRIKOUROS: So in essence you are, 22 if I understand you correctly, you're trying to divest 23 what I
would call the probability-weighted 24 consequences aspect of the environmental analysis, 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 namely SAMA, to basically make a modification without 1
consideration of that at all? Is that what I hear?
2 MS. CURRAN: I'm not 100% sure I 3
understand your question, but let me say something 4
that maybe answers your question, that we think Dr.
5 Bird's work shows that the risk of a serious seismic 6
accident causing core damage is at an unacceptable 7
level from the standard in the Atomic Energy Act.
8 That has to be addressed first.
9 JUDGE TRIKOUROS: All right, by the way, 10 I wasn't asking a question. I was simply asking you 11 for clarification of what you had said. So I think 12 the clarification I wanted I think I got, that 13 basically you're saying there should be no 14 consideration to risk in this -- well, there should be 15 no consideration to probability in terms of this 16 particular seismic risk because the risk is so 17 exceedingly high and the probability is so exceedingly 18 high that therefore it should be considered as almost 19 a given event, that this earthquake would be almost 20 considered as a given event with respect to plant 21 safety, and therefore modifications should be made 22 immediately or the plant should be shut down.
23 MS. CURRAN: I don't see how probability 24
-- I don't think we're taking probability out 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
53 we're just saying the probability is unacceptably 1
high.
2 JUDGE TRIKOUROS: Right, which I think I 3
said that. If I didn't --
4 MS. CURRAN: You used the word divest. You 5
said something, divest probability -
6 JUDGE TRIKOUROS: Well, what I'm trying to 7
understand is to what extent you're separating 8
yourself from SAMA, and it sounds like you're 9
separating yourself from SAMA entirely, which means 10 that anything associated with probability-weighted 11 consequences are gone. And your assertion seems to be 12 that the probability of severe damage is just simply 13 exceedingly high and unacceptable and therefore should 14 be dealt with immediately.
15 MS. CURRAN: Yes.
16 JUDGE MERCER: If you've got more, you can 17 go here. I've got some questions as well, but if you 18 want to finish up, that's fine.
19 JUDGE TRIKOUROS: I'll ask one more. The 20 seismic risk that's being -- or the event probability 21 that's being discussed here is a larger earthquake 22 analogous to the Noto Peninsula earthquake, and the 23 number that has been identified, if I remember 24 correctly, is 1.4 times ten to the minus three. Now 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 I see that as an initiating event probability, is that 1
correct? Nothing more than that, just an initiating 2
event probability? But do you see it as more than 3
that? Do you see it as a core damage frequency?
4 MS. CURRAN: Well we're giving you an 5
estimate of seismic core damage frequency, yes, that 6
is the terminology that is used in Dr. Bird's 7
declaration.
8 JUDGE TRIKOUROS: Right, but in Dr. Bird's 9
analysis, just following through it he's calculating 10 the likelihood of that event occurring, and that 11 results in 1.4 times ten to the minus three.
12 MS. CURRAN: Yes.
13 JUDGE TRIKOUROS: All right. So implicit 14 in that -- if that becomes a core damage frequency, 15 then implicit in that is the assumption that the 16 likelihood of severe core damage from that particular 17 initiating event has a probability of one.
18 MS. CURRAN: That was an approximation, 19 it requires to be more precise. It requires a full 20 study by a team, an SSE team, and I think Dr. Bird 21 said that in his declaration.
22 JUDGE TRIKOUROS: Approximation, that 23 probability of one -- okay. So in other words, what 24 you're saying is that all of the discussion that's 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
55 your pleading regarding the comparison of that number 1
1.4 times ten to the minus three, to various 2
regulations that are the deal with this sort of thing, 3
which are relating to core damage frequency, and in 4
some cases total core damage frequency, you're 5
basically saying that we should treat that number, 1.4 6
times ten to the minus three, as a seismic core damage 7
frequency that can be compared to those regulations?
8 MS. CURRAN: Yes.
9 JUDGE TRIKOUROS: Okay. Go ahead.
10 JUDGE ARNOLD: Mr. Lighty, somewhere 11 around page 461, I think, in the ER you say that the 12 environmental impacts of severe accidents are small.
13 Now, is this based upon your analysis or is this based 14 upon the Table B1 entry that says environmental 15 impacts are small?
16 MR. LIGHTY: That comes directly from the 17 Table B1 entry codified in the NRC's regulations and 18 backed up by the GEIS.
19 JUDGE ARNOLD: Okay, can that be 20 challenged in a litigation of this sort?
21 MR. LIGHTY: It cannot.
22 JUDGE ARNOLD: Without a waiver.
23 MR. LIGHTY: Without a waiver, which the 24 petitioners here didn't request or receive.
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56 JUDGE ARNOLD: And the Safety Act spec of 1
this contention, that's part of the current licensing 2
basis, is it not?
3 MR. LIGHTY: That's correct, and I think 4
we heard counsel for Petitioners, acknowledge that as 5
well. I would also note that her discussion of 6
seeking modifications to system structures and 7
components, that's the definition of a backfit, and if 8
you look at the regulations at 50.109, the definition 9
is there, and 50.109 a5 says that the Commission shall 10 always require backfitting, regardless of any type of 11 a cost-benefit analysis, if there's an adequate 12 protection issue, and that's dealt with through the 13 2206 process, it is certainly up to the current 14 licensing base.
15 JUDGE ARNOLD: Okay, thank you. Let me ask 16 staff, do you agree that neither the current licensing 17 basis or the Table B1 entry can be challenged here?
18 MR. WACHUTKA: That's correct, Your Honor, 19 the regulation says quote, the probability related 20 consequences of atmospheric releases fallout onto open 21 bodies of water releases the ground water and societal 22 and economic impacts from severe accidents are small 23 for all plants. And that is what the environmental 24 report is referring to in the pages that are cited by 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 Petitioners and that cannot be challenged without a 1
waiver to the rule.
2 JUDGE ARNOLD: Now, my question for you 3
is, we do have rules, regulations, and they've 4
developed through a fairly rigorous rule making 5
process in which the staff develops them, they go 6
through rigorous review, they're sent out to the 7
public for review, they get comments, they answer 8
comments, and then eventually the Commission votes on 9
them and passes them. My question is how do comments 10 of one Commissioner in response to a senator's 11 question toss all of that out the window?
12 MS. CURRAN: It was a serious question 13 from Senator Padilla, what is the NRC going to do to 14 reassure us about seismic safety at Diablo Canyon?
15 And the Chairman, who is sitting in the hearing with 16 the other commissioners said we will look at the 17 updated information in the license renewal process.
18 Now, it raises a question, or actually it shouldn't 19 have to raise a question, what did that mean. We 20 think we should be able to rely on the statement that 21 the Commissioner, on behalf of the Commission, meant 22 what he said, and that this assurance was something 23 that was, you know, on record for not only the Senator 24 but the entire Congress and the Senator'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
58 constituents. So whatever -- Chairman Hanson didn't 1
say, oh, too bad, our rules preclude us from doing any 2
of this thing, you're on your own. He didn't say 3
that, he said we're going to take it up. That's what 4
we're here to talk about.
5 JUDGE ARNOLD: Mr. Lighty, do you have any 6
comments on that?
7 MR. LIGHTY: I am aware of no legal 8
authority that suggests that a single comment at a 9
congressional testimony at a congressional hearing can 10 simply eviscerate codified law. There's a quite good 11 U.S. Supreme Court precedent, Perez v. Mortgage 12 Bankers, that says the APA mandates that if you're 13 going to modify or revoke a rule you have to use the 14 same method that you used to promulgate that rule.
15 There's no citation to any authority for anything that 16 would contradict what the Supreme Court has said on 17 this issue.
18 JUDGE ARNOLD: Do you have a comment?
19 MS. CURRAN: Judge Arnold, I would just 20 say, I wouldn't characterize what the Chairman said as 21 a comment, it was a commitment, and if the Board 22 thinks that the Chairman didn't have the authority to 23 make that commitment, we would ask the Board to refer 24 this issue to the commissioners so they could clarify 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
59 what did they mean.
1 JUDGE TRIKOUROS: Yeah I'd just like to 2
confirm one thing, to the staff counsel, is it true 3
that as we speak, the Commission's staff is reviewing 4
a safety petition from the Petitioners to shut the 5
plant down and that they've identified a petitioner 6
review board and that board is working on this 7
subject?
8 MR. WACHUTKA: Yes, Your Honor, the NRC 9
staff's position here is that there seems to be a 10 fundamental misunderstanding of the scope of license 11 renewal. The Chairman, his statement was quote, as 12 part of the license renewal process, end quote. And 13 the license renewal process, as laid out in 10 CFR 14 part 54, and in the NRC Statement of Considerations is 15 that all the issues that are unique to license renewal 16 are subject to the licensing portion of that process, 17 and then everything else, which is the current 18 licensing basis and how the plant currently is, its' 19 current standards, is subject to the NRC's ongoing 20 regulatory process.
21 And so that's the portion of the license 22 renewal process that we're talking about now, which is 23 that at any time, any issue can come up that can 24 challenge the current licensing basis, and the proper 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 form for that is the 10 CFR 2.206 request for 1
enforcement action process, and these very same 2
arguments that Petitioner is bringing now, Petitioner 3
brought before the Commission for both contentions one 4
and contention two, requesting to shut down the plant, 5
and the Commission recognized that this is something 6
that's in the oversight space of the NRC's process, 7
not the licensing portion, which is this proceeding.
8 And so it was directed to the 2.206 process, both 9
those contentions are in the 2.206 process right now, 10 that the experts and the staff with relevant knowledge 11 are discussing it right now. As you said, there's a 12 petition review board, and the end of that process 13 will be a written product, and at any point in that 14 process, which the Commission directed it to, the 15 Commission has the discretion to intercede in that 16 process.
17 And so the Petitioners are just trying to 18 fit their arguments into the licensing section of 19 license renewal, where they're really part of the 20 staff's oversight in that process. And so the staff 21 doesn't believe that the Commissioner's statement was 22 necessarily inconsistent, because license renewal 23 process involved oversight and it involves licensing.
24 And at all times, including during the time 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
61 NRC staff is reviewing a license renewal application, 1
they're always looking for new information that could 2
affect the current licensing basis of the plant. And 3
that's what the staff did after Fukushima Daiichi 4
accident, which is discussed in the pleadings, and 5
that's what the staff will continue to do. So our 6
core issue is that this is not within the scope of 7
this proceeding.
8 MS. CURRAN: I'd just like to read the 9
entire quotation from the Chairman that appears on 10 page 14 of our hearing request. He said we're going 11 to be looking at updated safety information as part of 12 that license renewal process. We did require all 13 plants to take a look at the enhanced -- you know, to 14 re-look at their risk after Fukushima. Diablo of 15 course did look at their seismic risk again, and we'll 16 take another look at that as part of the license 17 renewal process.
18 So he used the phrase license renewal 19 process twice, and I would respectfully submit there's 20 a huge distinction between the license renewal 21 process, which is a licensing decision, it's not 22 discretionary. The NRC, it may have discretion in 23 deciding whether the plant is providing adequate 24 protection, but it's not a standard of we'll take 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 look if we get around to it in the course of our 1
oversight, where we have a lot of discretion to decide 2
how much are we going to look at, when are we going to 3
look at it, how important it is. This is talking 4
about the license renewal process, which is a 5
statutory process that has rights attached to it and 6
obligations attached to it, way different from the 7
general oversight of the current licensing basis.
8 JUDGE TRIKOUROS: But the only way that 9
this issue can be the subject of a license renewal 10 process is if we admit the contention.
11 MS. CURRAN: That's right.
12 JUDGE TRIKOUROS: And then we would go 13 through an adjudicatory hearing on the subject, 14 correct?
15 MS. CURRAN: Correct.
16 JUDGE TRIKOUROS: And our deliberations 17 with respect to admitting the contentions are 18 constrained by all of the rules and regulations that 19 we have to meet.
20 MS. CURRAN: Yes, Judge Trikouros, that's 21 true, and I would say you are also constrained by 22 Chairman Hanson's statement to Senator Padilla. That 23 is an element that you must consider.
24 JUDGE MERCER: Can I chip in on that?
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63 JUDGE TRIKOUROS: Please.
1 ADMIN. JUDGER MERCER: So I want to 2
backtrack just a moment. We've heard from Mr. Lighty 3
where he cited the Perez vs. Mortgage Bankers case, I 4
didn't see in any of the submissions any authority one 5
way or the other that the testimony of one 6
commissioner or even the chair of a commission 7
actually has binding effect on the scope of what the 8
agency or the Commission is supposed to do. I'm 9
assuming Mr. Lighty, if asked, would rely on the Perez 10 case, do you, Ms. Curran, have any authority to cite 11 to us that says we've got these parameters in the CFR 12 that says this is what a license renewal proceeding is 13 supposed to look at? This is, if it falls within then 14 it's fair game, if it falls outside we can't touch it.
15 Do you have authority that says the Chair's testimony 16 before Congress is able to amend or alter or revise or 17 supplement what's within those four corners?
18 MS. CURRAN: I don't have a case, but it 19 seems to me that Congress is the NRC's ultimate 20 supervisor. The Congress passed the Atomic Energy 21 Act, the Congress engages in oversight of the Agency.
22 If the Chair to Commission, in the presence of the 23 other commissioners, makes a commitment to a U.S.
24 Senator to review a certain issue in a 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
64 proceeding, then that has precedential value, it is 1
something that the public should be able to rely on.
2 And any determination by this body that it is 3
ineffectual, would in effect say that the Chairman's 4
word has no value.
5 And we think that -- we would like the 6
Licensing Board to rule that this commitment that the 7
Chairman made to Senator Padilla is something that on 8
which you could base the admission of our contention.
9 If you do not think that, we ask you to refer this 10 question to the Commission so that they can clarify 11 for Senator Padilla and the public at large what was 12 meant by this statement. Did it have no meaning, was 13 it just a comment, as it's being characterized, or was 14 it an actual commitment to address a significant 15 safety concern that has been at the front of the 16 public's mind with respect to Diablo Canyon for 17 decades.
18 JUDGE MERCER: And I'll get back to you on 19 what the actual scope or potential effect of Chair 20 Hanson's testimony might be, but before I do I want to 21 turn to the staff. Do you want to weigh in at all on 22 the issue of is Chair Hanson's testimony before 23 Congress, is that something that's binding that 24 essentially would expand or include within the scope 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 something that's not provided for, at least expressly, 1
in the regulations?
2 MR. WACHUTKA: Your Honor, the NRC staff's 3
position is that there would be no need to certify 4
this as a question. The Commission acts in directing 5
a staff commiserate with its internal commission 6
procedures, and those internal commission procedures 7
direct how the staff as a collegial body, or the 8
Commission as a collegial body can direct the staff to 9
take actions. And so that's what the Commission has 10 to follow to direct the staff, and Petitioners here 11 have not pointed to that or shown how a single 12 statement from the Chair of the Commission is one of 13 those ways that are dictated by the internal 14 Commission procedures.
15 JUDGE MERCER: Now, getting back to you 16 Ms. Curran on the testimony of Chair Hanson, or the 17 statement of Chair Hanson. You read it, but I want to 18 take a look at it because I'm not sure, and I'm one of 19 three folks up here, so this is just coming from me, 20 I don't necessarily see, even if we give Chair 21 Hanson's testimony the effect that you want us to 22 give, that it is binding and it can expand the scope 23 of our authority in license renewal proceedings, I 24 don't know that it gets you where you need to go based 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 on my reading of it, because he says we're going to be 1
looking at updated safety information as part of that 2
license renewal process, and then later one we'll take 3
another look at that as part of the license renewal 4
process.
5 Well my understanding of the license 6
renewal process, set out in 10 CFR 54.4 says that the 7
license renewal process will look at seismic issues, 8
but as it relates to passive functions of structures 9
and components. And so I don't see Chair Hanson's 10 testimony as saying we're going to look at the effect 11 of seismic on everything, I read it as him saying yes, 12 as part of our license renewal process, we look at 13 seismic, but that license renewal process looks at the 14 impact of seismic only on those passive structures and 15 components. But what I understand Petitioners to be 16 asking us is to look at the effect of seismic on 17 things well beyond those passive structures and 18 components.
19 So that's where, even if I were to agree 20 with you, I'm not saying that I do, I'm not saying 21 that I don't, even if I were to agree with you that 22 Chair Hanson's testimony can expand that, how do I 23 read it other than saying yes, this is what our 24 license renewal process requires us to look at 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
67 we're going to do that?
1 MS. CURRAN: I think there's an implicit 2
breadth to this review in the Chairman's statement.
3 One is he says we're going to be looking at updated 4
safety information, and I think it's reasonable to 5
assume that what he means there is that PG&E's updated 6
safety review, and PG&E itself refers to this review 7
in its opposition to our contention to say we're doing 8
a good job, we're looking at seismic risk. So he's 9
saying we're going to have a look at this and he also 10 says that they're going to re-look at -- take another 11 look at the risk analysis they did after the Fukushima 12 accident. And that was broad, that wasn't just on 13 passive components, it was on what is the seismic risk 14 to this plant? So the implication, I do believe the 15 implication of this is that this is going to be a 16 broad review during the license renewal process.
17 JUDGE MERCER: I was just going to give 18 counsel for PG&E and the staff a chance to weigh in on 19 that.
20 MR. LIGHTLY: Thank you, Your Honor. I 21 want to be very clear here there is absolutely nothing 22 in Chair Hanson's statement to the Senate Committee 23 that is inconsistent with the current license renewal 24 process. The staff is looking at updated 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
68 information in the context of aging management 1
programs, in the context of severe accident impacts 2
analyses. The problem is that Petitioner's didn't 3
initiate the machinery to challenge those codified 4
parts that are outside the scope of what you can 5
challenge in a license renewal proceeding. The staff 6
is looking at new and significant information related 7
to external events for severe accidents, but that 8
information isn't subject to challenge unless there's 9
a waiver.
10 So if Petitioners really took Chair Hanson 11 at his word and thought he was expanding the scope of 12 the review, they could have initiated that machinery 13 and they could have filed a waiver request. They 14 didn't do that, and that's a key defect in what 15 they're trying to do here, to challenge things that 16 are codified, that are beyond the scope of the 17 proceeding, and that they didn't seek a waiver from 18 the rules to challenge. But everything that Chair 19 Hanson said is correct, the staff is looking at 20 updated safety information in those contexts, but 21 Petitioners just haven't followed the right process to 22 challenge that.
23 ADMIN. JUDGER MERCER: Mr. Wachutka?
24 MR. WACHUTKA: Your Honor I would add 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
69 also, 10 CFR part 54 talks about for current licensing 1
basis issues, that's subject to the NRC staff's 2
ongoing regulatory process. So it's oversight role, 3
and in its oversight role, at this very time, at the 4
very same time that the staff is reviewing the license 5
renewal application, the staff is also looking at the 6
exact issues raised by petitioner in its 2206 process, 7
and the staff is also always looking at new 8
information including the state of California is 9
requiring, as has been discussed, an analysis, a re-10 analysis of seismic issues, and my understanding is 11 the staff has that and the staff is looking at that as 12 well. So everything that Petitioner is challenging 13 here is consistent with 10 CFR part 54, and the 14 appropriate venue to make those arguments is the 2206 15 process and that's where they are already. So there's 16 nothing additional here for the Board to rule on.
17 JUDGE MERCER: Ms. Curran, do you want to 18 respond? And then I'll turn it over to Judge 19 Trikouros.
20 MS. CURRAN: I'd like to respond to Mr.
21 Lighty's suggestion that we should have filed a waiver 22 petition regarding Chairman Hanson's statement, and we 23 did not think that was necessary because in effect 24 Chairman Hanson did it for us, he made 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
70 representation, we don't need to ask that the 1
regulations be waived, he said we're taking a 2
different route with respect to Diablo Canyon. We 3
took him at his word, and that's perfectly legitimate.
4 JUDGE MERCER: Judge Trikouros?
5 JUDGE TRIKOUROS: Well, the problem is 6
that the way that we conduct our deliberations, follow 7
certain rules, regulations, guidelines, procedures, 8
and we do not have the choice in that matter.
9 However, whatever decision we reach is subject to 10 appeal, as you well know. That appeal goes to the 11 Commission, so you know, therefore that is the process 12 that has to be followed. Now, my understanding is 13 that when the Commission evaluates the appeal, they 14 will be using the appropriate rules, regulations, and 15 guidelines that we should have followed to evaluate 16 whether or not we did our job correctly. So there is 17 a process and it is being conducted right now, so it's 18 not clear to me what you're asking with respect to the 19 comments of Commissioner Hanson with respect to the 20 Board's deliberations.
21 MS. CURRAN: We'd simply ask that the 22 Board refer the issue to the Commission, just to show 23 that the Board considers that there's an issue here 24 that needs to be clarified by the Commission.
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71 JUDGE MERCER: Let's set aside, or jump 1
past this particular issue, and let's say for 2
argument's sake we agree with you on the scope issue.
3 We still have to address another element of contention 4
admissibility, which is the specificity requirement.
5 Petitioners have to reference a specific portion of 6
the application that they're contesting, and the 7
supporting reasons for that contest. Where in the 8
petition, as it relates to this seismic issue do 9
Petitioners provide a specific, a reference to a 10 specific part of the license renewal application that 11 they're contesting? Because I looked for it and I 12 didn't see it, so where -- like I said, let's say we 13 get past the scope element, we're now facing the 14 specificity element. How do Petitioners meet that 15 element?
16 MS. CURRAN: I'd like to -- I think 17 there's three important points to make in response to 18 this. First, we did refer to the seismic core damage 19 frequency estimates in the environmental report.
20 That's in Dr. Bird's declaration, it's really clear.
21 So he definitely points to the seismic core damage 22 frequency estimate, gives the page number in the 23 environmental report, talks about where the number 24 came from, previous iterations in earlier license 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 renewal GEIS, so from a NEPA standpoint. That's met, 1
that requirement is met.
2 From a safety standpoint, we have a little 3
bit of a chicken and an egg problem, that the 4
regulations don't require the application to address 5
seismic risk, for on the safety side. So you're going 6
to look in vain for some discussion in the license 7
renewal application about seismic risk. Dr. Bird 8
focused on the 2018 seismic PRA, which is what the 9
most recent seismic study that PG&E is relying on to 10 say, so as input to the environmental report, and also 11 in saying to the state that the plant is adequately 12 safe. And perhaps, I don't know if the NRC has 13 reviewed that in its ongoing review, but it may have 14 been recognized as input to the environmental report.
15 JUDGE MERCER: So, just so I am clear on 16 the safety aspect of contention one, you're saying the 17 specificity or the specific portion is the 2018 18 seismic PRA?
19 MS. CURRAN: Yes, and again, taking you 20 back to the quotation from Chairman Hanson, he said 21 we're going to be looking at updated safety 22 information. And that updated safety information is 23 the seismic PRA, I think it's been updated more 24 recently, but that's the --
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73 Okay, I'm going to try to say this as 1
succinctly as I can. Dr. Bird is relying on the 2018 2
seismic PRA, which was updated to not a significant 3
extent, in 2024. The SCDF, which is the seismic core 4
damage frequency, was updated slightly in 2024. But 5
this is the updated information that we believe 6
Chairman Hanson was talking about would be reviewed, 7
and under the union of concerned scientist, the case 8
that we cited, Chairman Hanson is telling Senator 9
Padilla, this is now relevant to our license renewal 10 decision, we're going to look at it, and we're not 11 going to approve this until we've taken a look. So 12 that brings it into the ambit of the license renewal 13 proceeding.
14 JUDGE MERCER: Mr. Lighty, do you want to 15 address the specificity element, as it relates to --
16 and I think we're talking about, or we've kind of 17 merged them together, if you want to address it as it 18 relates to the safety as well as the environmental 19 aspect.
20 MR. LIGHTY: Sure, Your Honor. I think as 21 to the safety element, as Ms. Curran noted, the 22 regulations don't require that information to be in an 23 application, but when you look at the contention 24 admissibility criterion, in 2.309, F1, VI, it says 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 that an admissible contention quote, must include 1
references to the specific portions of the application 2
that the petitioner disputes. It's not enough to 3
dispute some other document somewhere else that's part 4
of the current licensing, we must dispute something 5
that's in the application. And as Petitioners 6
acknowledge this information is not in the 7
application, because it's not required to be there 8
because it's not part of part 54 or license renewal.
9 And I think that's the fundamental issue with their 10 safety challenge.
11 I do agree that they have identified 12 specific portions of the environmental matters that 13 they wish to challenge, the problem there is they're 14 identifying codified information that can't be 15 challenged without a waiver.
16 JUDGE MERCER: Mr. Wachutka?
17 MS. WACHUTKA: Your Honor, the NRC staff 18 agrees there is no genuine dispute on the safety side, 19 because there's not a single application, there is no 20 genuine dispute on the environmental side because 21 those references as we discussed are challenges to 22 rules which are not inadmissible, and again, Your 23 Honor, all of these arguments are before the staff 24 experts under 10 CFR 2.206 process, the staff has 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 issued an initial assessment on that with responses 1
due on May 29th, and any additional information can be 2
added at that point, and that's where this additional 3
information is supposed to go. This is all current 4
licensing basis oversight issues, Your Honor, there's 5
nothing more to it.
6 JUDGE MERCER: I've got a couple more 7
questions as it relates to the environmental aspect of 8
contention one, and then we'll take a brief break.
9 Ms. Curran, as it relates to the environmental aspect 10 of contention one, are Petitioners claiming that it's 11 a change in the potential seismic hazard for Diablo 12 Canyon that underlies the environmental aspect?
13 MR. CURRAN: An underestimate, I would 14 say. It didn't change, just we think that Dr. Bird 15 has a more reasonable estimate.
16 JUDGE MERCER: Now, as has been alluded to 17 a number of times, the main impediment that I see to 18 the admissibility of contention one on the 19 environmental side, setting aside the whole scope 20 issue, is the small versus large and it being a 21 category one or a codified issue, and there was no 22 waiver petition that was filed here. I understand Dr.
23 Bird's analysis, I understand your explanation of Dr.
24 Bird's analysis, that the thrust vaults are stronger 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 and therefore when all that is factored in, 1
Petitioner's view is that the impact is not small but 2
is in fact large. I understand all of that, but how 3
do you get around, or how do you advocate that we 4
somehow address and get around the fact that small is 5
codified, and that's where that comes from, and there 6
was no waiver petition that was filed?
7 MS. CURRAN: I would go back to Chairman 8
Hanson's statement, that we rely entirely on that 9
statement, that commitment, I should say.
10 ADMIN. JDUGE MERCER: Okay. Mr. Lighty, 11 Mr. Wachutka, do either of you have anything on that 12 particular issue? I don't want to foreclose the 13 possibility of allowing you time.
14 MR. LIGHTY: I have nothing further, Your 15 Honor.
16 MR. WACHUTKA: Your Honor, the NRC staff 17 understands that all of the arguments in contention 18 have been conceded, other than the statements of the 19 Commissioner, and as we stated, those aren't 20 inconsistent with the 10 CFR part 54 rule making, the 21 Commission directed these issues already to the staff 22 under 10 CFR 2.206 process, and the NRC's internal 23 commission procedures dictate how the Commission acts, 24 and I don't think this is one of the ways 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
77 Commission can direct the staff.
1 JUDGE MERCER: Judge Arnold, Judge 2
Trikouros, any other questions on contention one?
3 JUDGE TRIKOUROS: I have one clarification 4
right now.
5 JUDGE MERCER: Sure.
6 JUDGE TRIKOUROS: It's footnote 12 7
actually, of your petition. I think I referred to 8
that earlier as well. You're addressing this question 9
of the small risk that has just been discussed, in 10 that footnote and you say therefore -- but in terms of 11 modifications, you then are referring to the SAMAs.
12 You're saying therefore the severe accident mitigation 13 alternatives listed in appendix G of the environmental 14 report are grossly inadequate to address the magnitude 15 of the environmental impacts involved. So your way of 16 dealing with this idea of the small, the codified 17 conclusion that the environmental impacts are small, 18 you seem to be referring to the severe accident 19 mitigation alternatives, and saying that they're 20 grossly inadequate. My first question would be what 21 do you mean by grossly inadequate?
22 MS. CURRAN: What we mean by grossly 23 inadequate is that the premise of the SAMAs is that 24 PG&E is starting with small impacts, and so then, 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
78 you're starting with small impacts, then the list of 1
SAMAs is going to be marginal improvements to make 2
something that's good, better. And if you're dealing, 3
as we think they should be, with large impacts, you're 4
not talking about marginal improvements, you're 5
talking about major alternatives such as not pursuing 6
the action alternative. That's not traditionally 7
looked at as a SAMA by the NRC. That's what we're 8
trying to get at here, Judge Trikouros, is if SAMAs 9
are an animal that relates to small impacts, let's 10 make it a little better, if it makes sense to spend 11 the money. But that's not what we're talking about in 12 this contention, we're talking about unacceptable 13 level of risk, that warrants major measures A, to 14 provide adequate protection, and B, to perhaps 15 consider the alternative under NEPA of not going ahead 16 with this, not a good idea.
17 JUDGE TRIKOUROS: There is, as I mentioned 18 earlier, I'll repeat it, there is at least one SAMA, 19 which would basically make the plant risk free from 20 earthquake. I think it's SAMA 19 of appendix G, and 21 it does that basically be assuring the core is cooled, 22 the containment is cooled, the spent fuel pool is 23 cooled, using a separate new equipment that's 24 seismically qualified to be available after 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
79 earthquake of the magnitude we're discussing. So the 1
safety of the plant is just sort of self-contained in 2
that mode. This modification is extremely expensive.
3 Well, I shouldn't say extremely expensive, by nuclear 4
standards it's not even moderately expensive, but it 5
is certainly expensive. And it is subject to the 6
requirements of being probability weighted. And you 7
haven't made any representation regarding whether or 8
not this new and significant probability information 9
would perhaps bring that modification into the 10 forefront, if the SAMA were re-analyzed with this new 11 information.
12 So basically, I just want to confirm that you 13 are not relying on the SAMA process in your 14 contention? Your contention is -- which would bring 15 it under the realm of environmental information that 16 is not subject to the category one?
17 MS. CURRAN: Yeah, let me just play out 18 what would -- supposing we hadn't challenged the 19 finding of insignificant impact or small impact, and 20 we're saying well you really should have considered 21 alternative, SAMA number 19. Well I think the answer 22 would have been, well those impacts are small, it 23 doesn't -- and that's what the SAMA analysis says, why 24 would we spend all that money, the impacts are small.
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80 And our contention, the purpose of our 1
contention is to say there is an elephant in the room, 2
there's a really big problem here, and whatever array 3
of SAMAs that have been created in order to mitigate 4
this small risk, we're saying go back to the drawing 5
board, the way you identify reasonable alternatives in 6
a reasonable way is to make a good, fair assessment of 7
the likelihood and consequences of an accident. So we 8
think it's premature to start arguing about what SAMA 9
might be cost effective, when we don't have an 10 adequate risk analysis that would lead to a reasonable 11 array of SAMAs. The SAMAs that you would consider, 12 where the risk was significant, would be really 13 different from the array that you would consider if 14 the impacts were small. And we're not going to 15 nitpick the array of SAMAs for a small impact that 16 appears in the environmental report. We're going back 17 to the issue of, is the impact significant? And if we 18 can prevail on that, then PG&E would have to go back 19 and look at a new array of alternatives, maybe some 20 things that would be considered necessary, worth the 21 money. But we're really not there yet.
22 JUDGE MERCER: Thank you. All right, as 23 I mentioned at the beginning, I will offer to counsel, 24 from our perspective we have concluded contention one.
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81 We'll give counsel opportunity if you'd like to 1
provide any final or brief issues that you don't think 2
that we addressed or that need to be addressed more, 3
keeping in mind that you will have five minutes at the 4
end for final closing arguments. Ms. Curran?
5 MS. CURRAN: I would just like to say that 6
Mothers for Peace was founded in the 1970s out of 7
concern about earthquake risk to Diablo Canyon. They 8
have consistently advocated for, they advocated for 9
not building the plant, not operating the plant, and 10 over more than four decades have constantly monitored 11 the safety of the plant to do everything they could to 12 ensure that it would be as safe as possible.
13 And even when the California legislature 14 passed SBA 46, providing PG&E with their loan, 15 encouraging them to apply for a license renewal. They 16 didn't say, we're not worried about earthquake risk 17 anymore, they said we're going to require PG&E to 18 update their seismic studies and they put something in 19 the bill that said if the NRC requires seismic 20 improvements that costs too much money, we may change 21 this decision, or the CPC may change it.
22 So that's -- you know, was in the thinking 23 of legislature, and now we have Senator Padilla asking 24 Chairman Hanson what are you going to do to protect my 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 constituents in the event of an earthquake? We think 1
this is hugely important, the commitment that 2
Commissioner Hanson made to the Senator, and this is 3
on an issue that goes back the entire operating life 4
of this plant, and before. So please, we ask you to 5
take that into account, that something significant was 6
said here about a longstanding problem that is at the 7
forefront of not only the legislature's concerns, but 8
Senator Padilla's.
9 JUDGE MERCER: Thank you, Counsel. Mr.
10 Lighty?
11 MR. LIGHTY: Thank you, Your Honor. I 12 just wanted to briefly go back and tie up some loose 13 ends on the last exchange we had between Judge 14 Trikouros and Ms. Curran regarding SAMAs. And I just 15 want to make clear for the record that the only 16 mention of SAMAs in the petition is in that footnote 17 12 that's being discussed. A single sentence that, if 18 I could paraphrase, says appendix G is bad. That's 19 not enough to demonstrate a genuine dispute for an 20 admissible contention. The Petitioners didn't 21 identify SAMA 19 or any specific SAMAs, they didn't 22 criticize any aspect of any of those SAMA analyses, 23 they didn't allege that considering this new 24 information would somehow overcome the cost-benefit 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 analysis and cause a material change in the outcome of 1
that analysis. Those are all things that you must do 2
to demonstrate a material contention, and that has not 3
remotely been satisfied here in that single footnote.
4 JUDGE MERCER: Thank you, Counselor. Mr.
5 Wachutka?
6 MS. WACHUTKA: Your Honor, as clarified by 7
the Petitioners, contention one comes down to a 8
statement of Chair Hanson's, and as we have explained, 9
this statement is not inconsistent with the NRC's 10 license renewal rule, which specifies that aging 11 management issues, issues unique to aging management 12 are a part of this licensing proceeding. All other 13 issues related to the current licensing basis, 14 including these seismic issues, are part of the NRC's 15 oversight process. The NRC is at all times, including 16 at the same time as reviewing license renewal 17 applications, making itself aware in its oversight 18 role of information that could impact the current 19 licensing bases of its licensed facilities, and acting 20 on that information as appropriate. So the statement 21 is correct and the statement does not change the scope 22 of this proceeding or the scope of the NRC's rules.
23 JUDGE MERGER: All right, thank you 24 Counselor. It is 2:59, Eastern Time, here in the East 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 Coast, for those joining from out in California, 1
subtract three. We're going to take about a 10 minute 2
break, so let's meet back here in the hearing room at 3
10 minutes after 3:00 Eastern Time. Thank you.
4 (Whereupon, the above-entitled matter 5
went off the record at 3:00 p.m. and resumed at 3:11 6
p.m.)
7 JUDGE MERCER: All right. We are back on 8
the record. Thanks, everyone, for making it back.
9 We're now going to turn to contention two, the Unit 1 10 reactor pressure vessel embrittlement, reactor 11 pressure vessel, or RPV. Ms. Curran, we read 12 contention two as raising a safety contention claiming 13 that PG&E's plan to monitor or manage the 14 embrittlement issues related to Unit 1 reactor 15 pressure vessel embrittlement is inadequate. Is that 16 a correct reading of contention two?
17 MS. CURRAN: Yes.
18 JUDGE MERCER: And just to confirm, this 19 contention is limited to the Unit 1 RPV, correct?
20 MS. CURRAN: That's correct.
21 JUDGE MERCER: Now, we spent some time 22 during contention one talking about CLB. Do the 23 petitioners agree that a nuclear power plant's CLB is 24 not within the scope of a safety contention on 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
85 license renewal proceeding?
1 MS. CURRAN: As a general matter, yes.
2 JUDGE MERCER: Reading pages 16 and 17 of 3
the petition, Dr. Macdonald's opinion is summarized as 4
saying that the proposed aging management program for 5
the RPV, which Dr. Macdonald opines is inadequate, 6
quote, relies heavily upon and perpetuates the pre-7 existing and inadequate surveillance program that PG&E 8
has used during the decades-old initial operating 9
license period, close quote.
10 Petitioners then go on and outline 11 purported deficiencies, ostensibly of the RPV aging 12 management program. And then Dr. Macdonald or the 13 petitioners conclude, quote, taking all of these 14 deficiencies into account, Dr. Macdonald concludes 15 that the NRC must reject PG&E's license renewal 16 application because it relies on this outdated pre-17 existing program without addressing or resolving its 18 multiple serious inadequacies, close quote.
19 Ms. Curran, this strikes me as conveying 20 that contention two is challenging Diablo Canyon's CLB 21 and therefore be outside the scope of the proceeding.
22 How is it not challenging the CLB and therefore 23 outside the scope of this proceeding?
24 MS. CURRAN: Judge Mercer, this 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
86 is something like the contention that the licensing 1
board admitted in the Indian Point case that we cited.
2 And in that case, there were pre-existing problems 3
that were not resolved, and they're not, weren't 4
addressed in the aging management program. And so the 5
aging management program was just perpetuating these 6
problems and not dealing. You know, very significant 7
problems that if they're disregarded, then your aging 8
management plan doesn't really make sure that this 9
very important passive safety component is going to be 10 adequately monitored and managed.
11 And in section 4 of his declaration, Dr.
12 Macdonald goes through a number of statements in a 13 license renewal application where PG&E demonstrates 14 its reliance on the existing program as a basis for 15 going forward and saying, well, we're going to do some 16 additional things, but we rely on calculations that we 17 made to date, testing that we've done to date.
18 And we -- as Dr. Macdonald sets forth, the 19 last time the pressure vessel was sampled, that 20 samples were taken from the pressure vessel and 21 tested, was 2002. That's almost 25 years ago now.
22 And the last time that the ultrasound testing was done 23 on the pressure vessel was 2005. They're supposed to 24 happen every 10 years, and that was delayed. NRC 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 approved an extension of time until I think 2025. So 1
basically, PG&E is going into this aging management 2
plan without a really good sense of what is the 3
condition of the pressure vessel and what is needed.
4 JUDGE MERCER: Well, and I'm going to give 5
PG&E and the staff an opportunity to respond to the 6
question I just posed to you. But before we get 7
there, because you've led into Dr. Macdonald's report, 8
I wanted to follow up with that because setting aside 9
whether you can just incorporate by reference Dr.
10 Macdonald's report without pulling it in -- calling it 11 out specifically in the petition. I looked at Dr.
12 Macdonald's report and I saw only five pages from the 13 license renewal application that he cited in his 2024 14 report.
15 Of course, there were none cited in the 16 2023 report because that was done before the license 17 renewal application. But I only saw five pages. And 18 on those five pages, I saw only two things that he 19 challenged or could potentially be deemed to be a 20 challenge of the license renewal application, one 21 being the timing of the removal and testing for 22 capsule B, and two being an issue about the ultrasonic 23 testing of the beltline welds and how that relates to 24 the scheduled ultrasonic testing inspection.
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88 But as it relates to the specificity issue 1
here, one, the issue of the testing of capsule B, Dr.
2 Macdonald answers his own question later on when he 3
cites to the correspondence between PG&E and the staff 4
that PG&E is going to pull the thing for testing no 5
later than 2025. So there is a commitment to pull and 6
test. And the whole issue of the ultrasonic testing 7
of beltline welds, he brings up the fact that those 8
two things aren't married together, but then never 9
mentions or explains why or how they should be 10 considered together.
11 So I'm not seeing anything in those five 12 pages where there's really any specific explanation or 13 delineation of what the dispute is with the license 14 renewal application. Are you able to help me with 15 that?
16 MS. CURRAN: Well, I'll start with 17 paragraph 19, which is the first paragraph in section 18 5 on page 6. Let me just back up a minute and say 19 that the purpose of section 4 is to lay out the 20 sections of the license renewal application that rely 21 on the existing surveillance system and the 22 conclusions PG&E reached from it in the license 23 renewal application. And there's one, two, three, 24 four, five, six or seven paragraphs there where he 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 gives examples of statements in the license renewal 1
application. And I can go through those in detail, 2
but --
3 JUDGE MERCER: Well, one second there. He 4
does call out in each of those paragraphs a part of 5
the license renewal application, but he doesn't 6
necessarily say something is wrong. Like in paragraph 7
13, all he does is quote page 4.2-2 and doesn't 8
explain what's wrong with or why that's being called 9
out. Similarly, in paragraph 14, he does the same 10 thing, but then he provides a paragraph that says, 11 thus the previous schedule for withdrawal of capsule 12 B is relied upon by PG&E for its plans. However, I'm 13 unable to locate any commitment by PG&E to a deadline 14 for removing and testing capsule B.
15 So I see there he said, this is the 16 paragraph I'm citing to, this is the problem, which he 17 didn't do in the prior paragraph. But in this 18 particular situation or this particular instance, the 19 very paragraph 19 and paragraph 20, he specifically 20 cites to the correspondence between PG&E and the staff 21 where there is a commitment by PG&E to remove and test 22 that.
23 So I'm trying to figure out what parts of 24 the license renewal application is he challenging 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
90 what the particular challenge is. Because yes, he's 1
called out pages throughout his report, but he hasn't 2
then identified and said, and this part that I've just 3
quoted is wrong because, or is deficient because, or 4
does this incorrectly. That's the part that I'm 5
missing.
6 MS. CURRAN: Well, I think that in 7
paragraph 14 of Dr. Macdonald's declaration, where he 8
says, I am unable to locate any commitment by PG&E to 9
a deadline for removing and testing capsule B. There 10 is no deadline in the license renewal application for 11 testing capsule B. And therefore, we're relying on 12 statements made by PG&E in the current license term, 13 the initial license term, which have changed over 14 time. They've gotten I don't know how many extensions 15 of time.
16 This capsule was supposed to be removed in 17 2009. And they've gotten multiple extensions. Right 18 about when PG&E decided to close Unit 1, it was in 19 2022. PG&E didn't take it out in '22. I don't think 20 they even wrote to the NRC about it. Then they got 21 another extension until -- I guess they got one until 22 2023. And then they said they couldn't get it out.
23 And the NRC said, do it in 2025 or as soon as you can 24 do it. That's in the current license renewal term.
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91 And then in comparison to that, we have no 1
commitment for the renewal term. It's just this 2
series of extensions in the current term going into 3
2025, which could be in the current license term 4
because of the exemption that the NRC issued to the 5
timely renewal rule. The current license could go on 6
past 2024 under an exemption issued by the NRC. So 7
basically, it's a no man's land.
8 JUDGE MERCER: Do petitioners cite 9
anywhere something that says in the license renewal 10 application there has to be a specific date by which 11 this testing is to be accomplished, or?
12 MS. CURRAN: We rely on Dr. Macdonald's 13 expert opinion that it has been far too long since 14 PG&E took any kind of sample from the Unit 1 pressure 15 vessel and tested it to determine its condition. In 16 the meantime, PG&E has been relying on data from 17 another reactor when it was required to have tested it 18 in 2009.
19 JUDGE MERCER: Well, I don't want to get 20 into the substance because that's not the role of the 21 Board at this point in time. But, I mean, the staff 22 did respond to the 2206 petition and specifically 23 provided information that directly contradicts that 24 information that you're giving us now. That the 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
92 has said that all of the regulatory requirements for 1
testing had been accomplished, at least as I read the 2
2206 response; the staff of PG&E can chime in when 3
it's their time if I'm incorrect.
4 But again, I come back to that may be Dr.
5 Macdonald's opinion and no disrespect meant to Dr.
6 Macdonald at all, but for us we have to be able to say 7
there's some requirement that this testing has to be 8
done and the failure of the LRA to include a deadline 9
is deficient and therefore this is either a 10 sufficiency contention or a contention of omission 11 because they don't have that date and we have to be 12 able to point to that.
13 Because as Judge Trikouros mentioned as it 14 relates to contention one, our decision can go up for 15 appeal and we've got to be able to explain to the 16 commission why we're saying what we're saying and we 17 can't justify a deficiency in the LRA based on Dr.
18 Macdonald's opinion that's not tied to any type of 19 regulatory requirement. So that's what I'm missing is 20 the hook to the regulatory requirement where something 21 is wrong.
22 MS. CURRAN: Judge Mercer, two things.
23 One is that there are no license renewal requirements 24 in Part 54 for testing of capsules. The requirements 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 or any regulatory guidance it pertains to the initial 1
license term. Capsule B, the capsule that is now 2
planned to be taken out in 2025, was installed in the 3
initial license term and was expected to be taken out 4
in the initial license term.
5 We actually have a case pending in the 6
Ninth Circuit arguing that the NRC amended the license 7
when it allowed the recapture of the time for low 8
power testing on the condition that capsule B would be 9
taken out in 2009. But once that was missed, once 10 that time for taking out the capsule B during the 11 initial time license term, once that's missed, there's 12 no regulatory requirements. This is a great gap in 13 the NRC's oversight of pressure vessels. And that's 14 why we are now in the realm of looking at expert 15 opinion as to what would be reasonably required in 16 order to assure that this pressure vessel, which had 17 problems from the moment it was purchased, that it 18 maintains integrity through the 20-year license 19 renewal term. This falls to a great extent on the 20 expert opinion on analyses that have been done up to 21 now by Westinghouse and on the results, PG&E's relying 22 on the results of capsules that were taken out 23 earlier, capsules S, Y, and V, and now extrapolating 24 what's needed in the license renewal term. That 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
94 the environment that we are in here.
1 JUDGE MERCER: Okay. Mr. Lighty, I'll 2
turn it over to you for PG&E's position relative to 3
the couple of questions that I've posed. And I 4
apologize that you're getting several questions thrown 5
at you at once, but if you could address those from 6
PG&E's perspective, please.
7 MR. LIGHTY: Thank you, Your Honor. Yes, 8
I'll try to address those in turn. So I think, Judge 9
Mercer, you were right on point in noting that even 10 though the petitioners wish to argue that there's no 11 deadline in the LRA for testing capsule B, that's 12 because there is no requirement for that information 13 to be included in a license renewal application. The 14 petitioners point to no requirement. There isn't one.
15 So that's not a genuine dispute on a material issue of 16 law or fact in this proceeding.
17 I think to summarize my understanding of 18 the petitioners' position, it's that they assert it is 19 a defect for the aging management program to rely on 20 information from materials that were monitored within 21 the scope of the CLB materials surveillance program.
22 But they don't explain why that is a material defect, 23 either.
24 In fact, if you look at the GALL report, 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 the aging management program that is the template 1
approved by the commission and approved to fully 2
satisfy the requirements of Part 54 for aging 3
management on reactor vessel surveillance, it has an 4
AMP for that purpose. It's XI.M31. And if you look 5
at item number one, scope of program, it specifically 6
says materials originally monitored within the scope 7
of the licensee's existing 10 CFR Part 50 Appendix H 8
materials surveillance program will continue to serve 9
as the basis for the reactor vessel surveillance aging 10 management program. It's explicitly endorsed by the 11 commission. It's expected that this information would 12 be part of the AMP.
13 So for the petitioners to rest their 14 entire contention on just the assertion that it relies 15 on CLB information, I think it's pretty clearly 16 immaterial and they haven't raised a genuine dispute 17 here.
18 I think one other thing that I would note 19 is that Ms. Curran mentioned the Indian Point case 20 earlier. That's a case that was cited in their reply 21
- brief, LBP-08-13, for the proposition that 22 embrittlement issues are within the scope of a license 23 renewal proceeding. I would just note that that 24 decision pertains to a contention of omission where 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
96 the applicant did not include an AMP for reactor 1
vessel aging management. The applicant later supplied 2
one and it superseded that contention, but that was 3
what was being discussed there, the absence altogether 4
of an AMP. Here, what we have is an AMP that exists 5
but hasn't been challenged with any specificity.
6 One other point that I would note is that 7
even though there is no hard deadline for testing 8
capsule B, the Appendix H requirements impose limits 9
on operation if a capsule that can't show extended 10 operation has been pulled. And if you look once again 11 at the GALL report, the template aging management 12 program for reactor vessel surveillance, it explains 13 exactly what happens in that circumstance if you don't 14 have a capsule that can show that you can continue 15 operating. It says, quote, operating restrictions are 16 to be established to ensure the plant is operated 17 under the conditions to which those surveillance 18 capsules were exposed. So the program itself deals 19 with that issue.
20 And once again, petitioners haven't 21 engaged with that information. They haven't disputed 22 that information. This is a commission-endorsed aging 23 management program that PG&E has adopted and the 24 commission has generically determined that it meets 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 the requirements of 10 CFR section 54.21. So, all 1
along, PG&E has followed the requirements for capsule 2
removal, has requested appropriate staff approvals for 3
changes to schedules where required. That has been 4
reviewed yet again in the 2206 petition process. And 5
throughout all of this, the petitioners haven't 6
identified any genuine material dispute here in the 7
license renewal application on this issue.
8 JUDGE MERCER: All right. Mr. Wachutka, 9
before I get to you, I want to go back to Ms. Curran 10 and a question I should have asked. The AMP that's 11 being challenged, it is the RPV surveillance AMP. Is 12 that correct?
13 MS. CURRAN: Yes.
14 JUDGE MERCER: Okay. All right. Mr.
15 Wachutka, if you'd like to present the staff's 16 position on the couple of questions that I addressed 17 to Ms. Curran at the beginning and then we'll circle 18 back to you, Ms. Curran, for follow-up on that.
19 MR. WACHUTKA: Yes, Your Honor. One 20 additional thing that the staff would stress is that 21
-- I think you mentioned it, but to get into it is 22 that for the contention admissibility standards in the 23 regulations at 2309F1, the requirements for all of 24 these criteria, including genuine dispute, which we're 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 discussing now, are, quote, for each contention, the 1
request or petition must, end quote, discuss those 2
things. And in this case, contention two makes zero 3
references to the license renewal application. So 4
that does not meet the genuine dispute requirement, 5
which requires references and instead, it points to 6
two declarations.
7 However, as we showed in our pleading, 8
there's case law that says that that is insufficient.
9 And then even if we were to get to the point where 10 these disputes, certain portions are being referred 11 to, after the declarations identify those things, then 12 it just returns to the previous arguments that were 13 made in 2023 for why the plant is currently unsafe.
14 And that belies the fact that these arguments actually 15 have to do with those reference portions of the 16 licensing application.
17 And regardless, those exact arguments were 18 referred to the staff under the 2206 process by the 19 commission, which, as the staff's position is that is 20 the appropriate process for these, because there are 21 challenges to the current licensing basis. And that 22 process involves such things as asking the sponsor of 23 the 2206 petition for additional information. So in 24 this case, the newer declaration has a few additional 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
99 comments and arguments, and the appropriate place to 1
bring those was in the 2206 process.
2 And as you referred to, Judge Mercer, the 3
staff has put together an initial assessment. The 4
initial assessment goes through every argument that's 5
made here and has a written record of the staff's 6
position on it. And so to have a hearing in this 7
forum on the same issues would just be duplicative.
8 And that, again, just illustrates the point that we 9
are out of scope here discussing these issues in this 10 licensing proceeding.
11 JUDGE MERCER: Ms. Curran, would you care 12 to respond to information presented by both counsel?
13 MS. CURRAN: Well, listening to Mr. Lighty 14 read the section from the GALL report, I may have 15 misheard him, but it sounded to me like what the GALL 16 report was saying was that the material monitoring 17 that is in the original license term is used as a 18 basis for the aging management plan. And it only 19 makes sense that this is a single component. It can't 20 be replaced, or not without spending a huge amount of 21 money. It's very difficult to repair. So it's really 22 important to have some continuity over time between 23 this monitoring program that was clearly required 24 during the first 40 years and then this aging 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 management plan for which the only thing that Mr.
1 Lighty can cite is staff guidance. There's not 2
regulations for what to do with the pressure vessel 3
during the license renewal term.
4 So if it's really correct that the 5
monitoring of the materials in the pressure vessel up 6
until the point of renewal is important, it's 7
something that is built upon in the aging management 8
plan, then if there's problems with that current 9
program, it's highly relevant to whether the aging 10 management plan is going to be successful. Otherwise, 11 it's just like rearranging the deck chairs on the 12 Titanic. You have to have a sense that the foundation 13 that you're building on is adequate because that is 14 what the aging management plan does.
15 JUDGE MERCER: But with that being the 16 issue though, Ms. Curran, how do we get around the 17 fact that what you are challenging then is the current 18 licensing basis for the plant?
19 MS. CURRAN: The way we address that is to 20 say that the aging management plan is inadequate 21 because it does not address serious concerns that the 22 reactor may be unduly embrittled. For instance, it 23 does not include a requirement to actually test 24 capsule B right away. It's not 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
101 application. It doesn't include ultrasound testing.
1 JUDGE MERCER:
But where is the 2
requirement that those be in that aging management 3
plan?
4 MS. CURRAN: What we are relying on is Dr.
5 Macdonald's expert opinion that those things have been 6
delayed unduly and unsafely such that we are now 7
entering the point of licensing renewal, the time of 8
license renewal, not having a good idea what is needed 9
because we don't have a good idea of what the 10 condition of this reactor vessel is. You can't have 11 an aging management plan for a reactor vessel where 12 you don't have a good idea of what is the situation 13 you are dealing with.
14 JUDGE MERCER: But in that answer, as I 15 understand it, Dr. Macdonald then is challenging the 16 current licensing basis, saying the current licensing 17 basis is insufficient to give us that baseline, which 18 circles back to my question of how is this not a 19 challenge then to the current licensing basis?
20 MS. CURRAN: Because the aging management 21 plan itself assumes that this pressure vessel has been 22 adequately cared for and inspected throughout the past 23 40 years. If the aging management plan assumes that, 24 then it becomes relevant to the -- then the past 40 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 years becomes relevant to the aging management plan.
1 We are not attacking the CLB by itself. We are 2
attacking the fact that this aging management plan is 3
supposed to be based on a reasonable amount of 4
information about the condition of the pressure vessel 5
and they don't have it.
6 JUDGE TRIKOUROS: In Dr. Macdonald's 7
declaration, I believe it's paragraph 17, he 8
references page B2-95 of the LRA. And in page B2-95 9
of the LRA, it's dealing with section B2-318 which is 10 the reactor vessel surveillance program, which is what 11 we're talking about now. It says that the reactor 12 vessel surveillance AMP is an existing AMP and I 13 believe that it is the AMP that we're talking about as 14 being described as the current licensing basis or 15 within the current licensing basis. Is that correct?
16 And I ask that question also to Mr. Lighty.
17 MR. LIGHTY: I believe that they are 18 slightly different programs. So the first sentence in 19 B2-318 talks about the existing AMP, but this AMP then 20 includes -- that's part of the LRA and would be for 21 the period of extended operation, includes the 22 additional information that is here in the document 23 consistent with the license renewal AMP from the GALL 24 report. So I think it's a bit different.
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103 JUDGE TRIKOUROS: Let me leave the GALL 1
report out of this and then we'll come right to it.
2 The way it appears, the AMP -- and I don't think this 3
is uncommon in license renewal where existing AMPs, 4
existing programs are just simply moved into the LRA.
5 And that seems to be the case here. So the attack on 6
-- to me it's the logic that says if A equals B and C 7
equals B, then A equals -- if A equals B and C equals 8
B, then A equals C. Okay? And logically equals B.
9 So if the AMP that we now call the current 10 licensing basis is the same AMP that is in the LRA, 11 and if one is attacking the current licensing basis 12 AMP, is one then not actually attacking the licensing 13 renewal application AMP? I'm trying to make that 14 separation. You're making a separation between those 15 two things, and I'm trying to see that separation.
16 MR. LIGHTY: My understanding is that 17 there's a slight difference between the existing AMP 18 and the one that will be used for license renewal, but 19 I do need to get confirmation on that from a technical 20 expert.
21 JUDGE TRIKOUROS: It doesn't say that in 22 any documentation that I've seen. I may have missed 23 it so much, but I guess I'll ask that question to Mr.
24 Wachutka.
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104 MR. WACHUTKA: Your Honor, the NRC staff 1
hasn't completed its review of the license renewal 2
application yet, so the staff doesn't know that one.
3 But the staff's position is that to have a genuine 4
dispute, petitioners have to explain why the AMP is 5
wrong, but instead of explaining why the program to 6
manage aging is wrong, they continually look backwards 7
at things they think that the PG&E should have done 8
instead of what it did. And it said that in the past 9
PG&E should have removed and tested more surveillance 10 capsules, or that in the past it should have made more 11 ultrasound inspections of welds, and in the past it 12 should have performed analyses differently.
13 But again, as we had discussed with the 14 initial assessment of the 2206 petition, all of these 15 arguments about things that happened in the past are 16 all consistent with the NRC's rules, and to the extent 17 those rules incorporate by reference industry guidance 18 documents, and so there's no basis here for an 19 admissible contention.
20 MS. CURRAN: Well, we would say the past 21 is prologue, and what's sauce for the goose is sauce 22 for the gander. PG&E is relying on the existing 23 surveillance program and on the results of it in order 24 to say they're going into the license renewal period 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 with a reactor vessel that has integrity and that only 1
needs some additional monitoring for the next 20 2
years, and they've done fluence calculations to show 3
that things are going to be okay for the next 20 4
years. And we're saying that it's not just the fact 5
that they missed deadlines for testing the 6
surveillance capsules, it's that they don't have good 7
data on the condition of the Unit 1 pressure vessel.
8 They just don't have it.
9 So to have an aging management plan where 10 you say they have to be able to build it on some sense 11 that they're managing something that is not going to 12 go downhill very quickly. In the license renewal 13 term, they're supposed to show how aging can be 14 managed safely over a 20-year period, and they don't 15 have anything in particular to show how they would be 16 dealing with a seriously embrittled pressure vessel, 17 which is what Dr. Macdonald thinks they have.
18 JUDGE TRIKOUROS: That I understand, but 19 the problem we're having is the distinction between 20 the program in the LRA and the program that's in the 21 CLB. And Dr. Macdonald has basically attacked or 22 criticized, if you will, the program that's in the 23 CLB. The question is, is that also the program that 24 is in the AMP? Sounds like it is. And however, there 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 was no -- other than a few small cites, there wasn't 1
any direct reference to the AMP that's in the LRA, 2
which is a problem.
3 And the other problem is, I believe, that 4
the AMP -- that once you move the CLB program to the 5
AMP, even if it's the same program, it's been declared 6
to meet the GALL report requirements. And if it meets 7
the GALL report requirements, then it cannot be 8
criticized within the guidelines as we have them, or 9
at least the rules that have been defined for 10 contention admissibility in that regard.
11 MS. CURRAN: We would disagree with that, 12 Judge Trikouros, that the determination that a program 13 is consistent with the GALL report is something that 14 is a legitimate subject of challenge and of 15 contention.
16 JUDGE TRIKOUROS: I'd like Mr. Lighty to 17 address that.
18 MR. LIGHTY: It is a legitimate subject of 19 challenge and of contention. Unfortunately for the 20 petitioners, they didn't raise that challenge. There 21 is not one word in the petition or in the Macdonald 22 declaration that suggests that PG&E's AMP is not 23 consistent with the GALL report. That's one of the 24 many deficiencies in the petition, in the 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
107 that the petitioners just haven't addressed.
1 They don't address the Part 54.21 2
requirements. Which one allegedly isn't satisfied 3
here? Why isn't it satisfied here? Why isn't an AMP 4
that's consistent with the GALL report enough to 5
satisfy those requirements? How is PG&E's program 6
allegedly different from the GALL report? None of 7
that is addressed in the contention. So we have 8
multiple overlapping deficiencies here.
9 JUDGE MERCER: Yes. Before you answer, I 10 actually had a question along these lines. I didn't 11 see anywhere in the petition where petitioners 12 challenged whether the reactor vessel surveillance 13 program, whether that is compliant with the GALL 14 report, or anywhere that the petitioners challenged 15 that that AMP was not explained in sufficient detail 16 or didn't have enough information in order to 17 determine if it was sufficient or consistent with the 18 GALL report. Did we miss that? Is that somewhere in 19 there?
20 MS. CURRAN: I think we did not bring up 21 the GALL report. I was responding to something that 22 Judge Trikouros said that we disagree with. It was a 23 theoretical thing about what's the significance of the 24 GALL report. The GALL report is a guidance document.
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108 It's not a regulation. We did not address the GALL 1
report. We relied on Dr. Macdonald's expert opinion 2
regarding representations that are made in the license 3
renewal application that the current monitoring 4
program forms a basis for the AMP.
5 As long as PG&E brings that issue into the 6
license renewal application, as long as they say, 7
well, there's some part of the CLB that forms a 8
foundation for this AMP, then it's legitimate for us 9
to challenge whether the information that they are 10 relying on from this program that's been conducted 11 under the CLB over all these years is a good enough 12 starting place for their AMP. Because that's the 13 foundation. If we want to go after the house, we get 14 to do the foundation too, not just the wood on top.
15 JUDGE TRIKOUROS: The other complication 16 I think here is -- well, let me make one statement.
17 My understanding is that in NUREG-1801, it is 18 identified that if an applicant utilizes the AMP 19 that's in the NUREG, that that is considered an 20 acceptable AMP. And I shouldn't have said that you 21 can't criticize it, but that is the position that the 22 commission has taken on that, I believe.
23 MS. CURRAN: Well, Judge Trikouros, I 24 would just amend that a little bit to say that is 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
109 staff's guidance. And the staff is a party. The 1
staff, it's not a regulation. So we can come in and 2
say we have concerns that are not addressed by simply 3
saying this AMP is consistent with what's in NUREG-4 1801.
5 JUDGE TRIKOUROS: All right. Well, so let 6
me get back to the other complication. And that is 7
that currently, Dr. Macdonald's declaration criticisms 8
are being considered under the 2.206 umbrella, which 9
is the CLB umbrella. But at the same time, there is 10 documentation as I quoted that indicates that the CLB 11 and the AMP, and the AMP and the LRA, are the same 12 thing. So that's what we're looking for a resolution 13 on right now.
14 MS. CURRAN: Well, if they are the same 15 thing, then, I mean, that's unequivocal that our 16 contention is admissible. And as far as the 2206 17 proceeding, the fact that we brought an enforcement 18 proceeding relating to the current operation of the 19 plant is irrelevant to the admissibility of our 20 contention here.
21 And just remember too that our enforcement 22 petition, initially we brought it to the NRC 23 Commission. And the Commission referred it to the 24 staff. The staff are the same people who we think 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 were not doing a good enough job of supervising the 1
surveillance program and giving extensions willy-nilly 2
for the removal of capsule B. So those are just the 3
same people whose actions we disagree with. It 4
doesn't say anything about this license renewal 5
proceeding.
6 JUDGE TRIKOUROS: Mr. Lighty, are you 7
preparing to answer that?
8 MR. LIGHTY: Sure, there's a couple of 9
things to respond to there, I think. First of all, 10 the GALL report does note that AMPs consistent with 11 the GALL report are considered acceptable. But that's 12 not just a staff determination. The Commission has 13 explicitly said that in its orders. And those orders 14 are cited in our brief in section IV, Charlie 1. So 15 it's more than just guidance. It's explicitly 16 endorsed by the Commission for these purposes. But I 17 think the broader issue, something even if we just 18 want to step away from the CLB for a minute and 19 explain another reason that these arguments are out of 20 scope.
21 Let's just say that it was okay for Dr.
22 Macdonald to challenge this AMP as a proxy for the 23 license renewal AMP. Those challenges are to the 24 NRC's regulations. Those challenges are to the NRC'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
111 guidance.
Those are not challenges to the 1
application. There isn't an allegation that PG&E 2
hasn't followed the rules here. It certainly has.
3 That's been confirmed over and over. It's confirmed 4
in the Petition Review Board proceedings. It's 5
confirmed in the many schedule adjustments and 6
approvals that PG&E has received. Dr. Macdonald was 7
simply advocating for an entirely different regulatory 8
regime. That also is not within the scope of an 9
individual adjudicatory proceeding.
10 So setting aside, regardless of how we 11 come out on the CLB issue, there's a separate 12 independent scope problem here because the attacks are 13 to the NRC-established and codified process for 14 analyzing embrittlement, the process that PG&E has 15 faithfully followed and fully complied with all along.
16 And there are no allegations in Dr. Macdonald's report 17 otherwise.
18 MR. WACHUTKA: Your Honor, as you were 19 discussing about the CLB and then the AMP, well, the 20 CLB is right now. And that is the withdrawal and 21 testing of the previous capsules. And that is 22 everything that is the subject of the challenges here, 23 everything that was done in the past. The AMP relies 24 on the withdrawal and testing of capsule B, and 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
112 the future. And that AMP is explaining why 1
withdrawing that capsule will provide reasonable 2
assurance that the plant will continue to operate 3
consistent with its current licensing basis over the 4
period of extended operations.
5 So in this case, to have a genuine dispute 6
that's within scope, what the petitioners had to do is 7
they had to attack that AMP and attack why its plans 8
to withdraw on test capsule B would be inadequate.
9 But here, all they're doing is they're pointing back 10 to their old arguments about why withdrawing the 11 previous capsules was inadequate, why not doing more 12 testings was inadequate. So that's the line between 13 current licensing basis and the issues unique to aging 14 management. And we don't think they've crossed that 15 line to the aging management side.
16 JUDGE TRIKOUROS: All right. Thank you.
17 MS. CURRAN: As far as we know, there's no 18 commitment -- first of all, I think Mr. Lighty is in 19 agreement with us that there is no regulatory 20 requirement for withdrawal of capsules during the 21 license renewal term. And PG&E has said in its 22 license renewal term that it's going to try to 23 withdraw another capsule in 2025. And the NRC has 24 said, well, we hope you can do it. And we don't see 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 it. I think Dr. Macdonald says in his declaration, I 1
do not see a firm commitment in the license renewal 2
application to withdraw capsule B. And so that is an 3
issue. It's the can that's been kicked down the road.
4 And it's not a commitment in the license renewal 5
application.
6 JUDGE ARNOLD: Is there some requirement 7
that it be a commitment in the license renewal?
8 MS. CURRAN: There's not, Judge Arnold.
9 And that is the problem here. There was a requirement 10 in the initial license term. And the NRC issued 11 extension after extension until it finally got to a 12 year past the expiration date, 2025. Those extensions 13 were issued in the initial license renewal term and 14 now we have a license renewal application that vaguely 15 refers to it, but doesn't make a commitment. So 16 something that was supposed to happen in the initial 17 license renewal term never happened, has now gone off 18 in the ether. And that's an issue. That's a really 19 serious issue because 2002 was the last time that a 20 capsule was taken out of Unit One.
21 JUDGE MERCER: I just want to circle back 22 on the GALL report. I had asked Ms. Curran a 23 question. I want to make sure I get an answer. Is 24 there anywhere in the petition that the petitioners 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 have challenged whether this AMP, the surveillance 1
AMP, is consistent with the GALL report or that there 2
is insufficient detail or information to determine 3
whether it is sufficient or consistent with the GALL 4
report?
5 MS. CURRAN: We did not address the GALL 6
report.
7 JUDGE MERCER: Okay. And do not address 8
consistency therewith either?
9 MS. CURRAN: That's right.
10 JUDGE MERCER: Okay. Now, I wanted to 11 address an issue in contention two to see if it is an 12 issue. In the statement of the contention on page 16, 13 there's a reference to time-limited aging analysis 14 being inadequate. We've been talking about contention 15 two and we've all been talking about AMP as opposed to 16 TLAA. I just wanted to make sure, is there a TLAA 17 argument being advanced by petitioners here? Because 18 if so, what is it, as I didn't see it, other than in 19 the statement of the contention?
20 MS. CURRAN: Excuse me. I'm just looking 21 over the contention.
22 JUDGE MERCER: Sure.
23 MS. CURRAN: Okay. In paragraph 11 of Dr.
24 Macdonald's declaration, he talks about TLAAs.
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115 JUDGE MERCER: Yes. He mentioned TLAA as 1
a -- let's see, once to define the term and twice 2
citing from the license renewal application's use of 3
the term. But I was not able to find any challenge to 4
a TLAA in the petition or in his report. I saw the 5
words, but I didn't see any type of a challenge. I'm 6
trying to figure out, is there a TLAA aspect to this 7
contention?
8 MS. CURRAN: He says in the last sentence 9
of that paragraph, thus TLAAs depend significantly on 10 the calculations and analyses developed in the initial 11 license renewal term. So he is making a general claim 12 about TLAAs that are essential elements of an AMP that 13 they go back to the calculations and analyses that 14 were done in the initial license term. So that is the 15 connection.
16 JUDGE MERCER: But what TLAA? I don't --
17 MS. CURRAN: He's not specific. He's 18 saying that this is a general problem.
19 JUDGE MERCER: So then how do you get 20 around the specificity element for that? I mean, how 21 does PG&E know what they're supposed to respond to or 22 the staff if he's just challenging TLAAs in general?
23 MS. CURRAN: But he cites, for instance, 24 in paragraph 13, he quotes 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
116 application embrittlement analyses.
1 JUDGE TRIKOUROS: I believe the TLAA that 2
is being discussed is associated with the pressurized 3
thermal shock calculation and two other calculations 4
which I don't remember at this second. That's the 5
TLAA that's being discussed. The existing TLAA is, my 6
understanding is the existing TLAA that calculates PTS 7
and these other items regarding embrittlement is moved 8
forward into the LRA. The calculations for PTS and 9
other important embrittlement calculations that are 10 being done today are also going to be done identically 11 in the future in the LRA. That's my understanding.
12 If that's not correct, someone correct me on that.
13 MS. CURRAN: Yes. So he's just saying 14 that these are a set of TLAAs that relate to pressure 15 vessel embrittlement and that rely on the existing 16 information that's been developed over the initial 17 license renewal term. That's what he's citing.
18 That's what he's concerned about.
19 JUDGE ARNOLD: It's not a challenge to a 20 TLAA.
21 JUDGE MERCER: I'm not seeing anywhere 22 where he's calling out specifically there's something 23 wrong with this TLAA. He may say it's based upon 24 calculations that have been done over the original 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 licensing period, but I don't see anywhere where he 1
has come out and said and this information is 2
incorrect and because of that X, Y, Z or this TLAA is 3
wrong because they screwed up this and such during the 4
initial operating period. He mentions TLAAs and he 5
cites to PG&E's citation to TLAAs, but I don't see 6
anywhere where he comes out and says and the TLAA was 7
supposed to do this, but it didn't or was supposed to 8
encompass these things and it didn't include that.
9 That's what I'm looking for.
10 MS. CURRAN: He's challenging what PG&E 11 says in the license renewal application about the 12 TLAAs. So, for instance, in paragraph 13 when he's 13 talking, he quotes page 4.2-2 of the license renewal 14 application that says the current license period 15 reactor vessel embrittlement analysis that evaluate 16 reduction of fracture toughness of the DCPP Units 1 17 and 2 reactor vessel beltline materials are based on 18 predicted 40-year EOLE fluence values. And then skip 19 down to the end of that paragraph.
20 JUDGE MERCER: Right. I can read the 21 paragraph, but my concern is the paragraph is just 22 plopped on the page. There's no analysis. There's no 23 conclusion that I can find by Dr. Macdonald that says 24 and this part from this LRAA is deficient because, 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
118 this is wrong because. I don't see that anywhere.
1 MS. CURRAN: Let me just say again that 2
the crux of Dr. Macdonald's analysis is that 3
throughout the license renewal application, you find 4
statements by PG&E saying our aging management 5
program, our TLAAs are based on our existing 6
surveillance program. This is an example. And then 7
he says in paragraph 19, this is inadequate because 8
you do not have an adequate existing surveillance 9
program on which to base these representations.
10 That's the specificity. He's quite specific about the 11 sections of the license renewal application that make 12 these representations.
13 We are relying on the existing program for 14 fluence calculations, for estimates of the degree of 15 embrittlement, for how soon do we have to test again.
16 That's what they're relying on, what they claim to 17 have done in the initial license term. And Dr.
18 Macdonald is saying that is not adequate because they 19 have not done an adequate job up till now.
20 JUDGE MERCER: Counsel for PG&E and 21 counsel for the staff, would you care to weigh in on 22 the TLAA issue?
23 MR. LIGHTY: Thank you, Your Honor. I 24 think you're exactly right. I don't see any specific 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
119 engagement with a TLAA, an explanation of which part 1
of Part 54 isn't satisfied allegedly. The reason for 2
that alleged non-satisfaction other than the vague 3
assertion that, well, you looked at information from 4
your CLB that I disagree with, that's a challenge to 5
CLB information and not a challenge to anything in the 6
LRA itself. And I think that's an important 7
distinction, not just on TLAA, but going back to the 8
AMP.
9 I do understand that the current RVAMP is 10 essentially the same as the proposed license renewal 11 AMP for the reactor vessel. But the difference, 12 again, is that what Dr. Macdonald appears to be 13 challenging is the calculations and analyses, the 14 information that came out of the original operating 15 term. That challenge is to CLB information.
16 Even if the text of the AMPs are the same, 17 there's no challenge to the text of the AMPs. It's to 18 the calculations and analyses performed consistent 19 with the NRC's regulations that Dr. Macdonald simply 20 disagrees with. And so I think that flows through 21 both the AMP and the TLAA issue. And the TLAA issue 22 is further so vague as to be incapable of really 23 responding to it because I don't know what the 24 challenge is.
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120 JUDGE MERCER: Mr. Wachutka?
1 MR. WACHUTKA: Your Honor, the NRC staff 2
just understands from this whole discussion that 3
there's no challenge to the license renewal 4
application. Current licensing basis arguments that 5
were brought up previously to shut down the plant are 6
being repeated. Those arguments were sent to the 2206 7
process.
8 The 2206 process is explaining why all 9
those events in the past were the way that they were.
10 And going forward is the AMP, which is based on the 11 GALL. And the GALL report says that an acceptable AMP 12 is one that pulls a capsule that will have fluence 13 that's one to two times the fluence at the end of 14 life, which would be the 6-year period. And that is 15 pulled before the end of the 6-year period.
16 So that's what the licensing renewal 17 application actually discusses. But that discussion 18 is not challenged by petitioners here.
19 JUDGE TRIKOUROS:
Dr.
MacDonald's 20 declaration points to a page in the LRA. I believe 21 it's page 491, I believe, which talks about the TLAA 22 that we're discussing. The TLAA that we're discussing 23 calculates -- and it is now written in front of me, so 24 I don't have to remember it -- the neutron fluence, 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 the pressurized thermal shock, upper shelf energy, the 1
adjusted reference temperature, and the pressure 2
temperature
- limits, and that includes a
low 3
temperature/high pressure analysis. LTOP, I believe 4
it's called.
5 MR.
WACHUTKA:
Low-temperature 6
overpressure.
7 JUDGE TRIKOUROS: So he then indicated, in 8
paragraph 19 that was quoted to us, some of the 9
problems that he has with that analysis -- those 10 analyses. All right. And now, it's my understanding 11 that's it. Oh. I'm sorry. There's one other thing.
12 There's additional analysis that is 13 discussed in the 2.206 document in September of '23, 14 and the current declaration by Dr. MacDonald points to 15 that. And so go look over there if you want to find 16 out more about this.
17 To my understanding, that is sort of the 18 totality of the TLAA situation that's being 19 criticized. Whether it's adequate or not is the big 20 question, of course.
21 MR. WACHUTKA: Right. And the staff would 22 reiterate that all of this is in the declaration that 23 we're talking about here, whereas as we stated, the 24 regulations require that this challenge be made in 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
122 hearing request, in the contention itself, and there's 1
not a single reference in the hearing request.
2 JUDGE TRIKOUROS: Yeah. I think there's 3
no dispute by anybody on that.
4 JUDGE ARNOLD: Yeah. Question along the 5
same lines. 10 CFR 2.309(f)(1) gives the contention 6
admissibility requirements, and it says that these 7
must be supplied by the petition. And I'm looking at 8
your petition, and where I expect to see these things 9
specified, it says it's in the attachment.
10 Now, Ms. Curran identified the reactor 11 pressure vessel AMP as the AMP that was the subject of 12 this. And it is in fact discussed in Dr. MacDonald's 13 statement, page 6, paragraph 17. But at the same 14 time, on page 5, paragraph 16, Dr. MacDonald discusses 15 the aging management plan for vessel internals, not 16 for the reactor vessel walls.
17 So it's left to us to figure out what's 18 being challenged. The same thing occurs for the time-19 limiting aging analysis. Now, I want to ask a 20 question and we'll go around. Is this a problem in 21 the specification of your contention? It seems to be 22 for me.
23 MS. CURRAN: We thought that there would 24 be no purpose served by simply pasting Dr. MacDonald'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
123 declaration into the contention. And it was quite 1
specific about the sections that he is criticizing.
2 And so therefore that was how we met the requirement.
3 JUDGE ARNOLD: Mr. Lighty?
4 MR. LIGHTY: It's certainly a problem 5
according to binding Commission precedent. This 6
approach is insufficient for contention admissibility, 7
and I think it's for the very reason that we're seeing 8
here today. It's just not exactly clear what's being 9
argued.
10 We're sitting here trying to figure out 11 what the contention is. That was a pleading burden, 12 and it's unmet here.
13 JUDGE ARNOLD: And the staff?
14 MR. WACHUTKA: The staff agrees that 15 there's no genuine dispute here, Your Honor.
16 JUDGE MERCER: Any other questions on 17 Contention 2?
18 JUDGE ARNOLD: Yeah. I do.
19 JUDGE MERCER: Okay.
20 JUDGE ARNOLD: Well, I'll address this to 21 Ms. Curran. Paragraph 19(b) on page 7 of this 22 declaration, Dr. MacDonald finds puzzling the staff's 23 approval of PG&E's disregard of a piece of data. I'm 24 wondering exactly what your meaning there is. Is he 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
124 finding that it's against some regulation or guidance?
1 Or I'm not sure what the purpose of his puzzlement is 2
in this contention.
3 MS. CURRAN: PG&E disregarded data in 2002 4
that they said they found at the time were not 5
credible. And Dr. MacDonald goes into extensive 6
detail about that in the declaration that is attached 7
to this one. But he summarized it in this one.
8 So I think he refers to section 5(a) of 9
his attached declaration. So we didn't repeat 10 everything in the other declaration. It seemed more 11 efficient to refer the reader to that. But his point 12 here is that there is data that are relied on in the 13 aging management plan whose -- or there's data that 14 are not relied on that should have been considered 15 credible and that showed embrittlement issues with 16 Unit 1.
17 JUDGE ARNOLD: Okay. Being an engineer, 18 there's never enough data. But the staff approved 19 this, and did they do so disregarding some guidance?
20 MS. CURRAN: Yes.
21 JUDGE ARNOLD: Okay. And that's in --
22 MS. CURRAN: That's in much more detail in 23 Dr. MacDonald's attached -- the declaration that is 24 attached to this one, which is dated September 14th, 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 2023.
1 JUDGE ARNOLD: Okay. On page 7, paragraph 2
19(c), Dr. MacDonald states PG&E's reliance on 3
substitute data from other reactors was also 4
unreasonable. Is using embrittlement data from other 5
sister vessels an unusual practice?
6 MS. CURRAN: It is sanctioned by NRC. But 7
they need to be sister plants. There needs to be some 8
basis for comparing them. And Dr. MacDonald believes 9
that there was not sufficient basis for using this 10 data from the Palisades plant.
11 JUDGE ARNOLD: On page 17 of the petition, 12 you reference the erroneous assumption that 13 embrittlement accrues in a non-Markovian manner. Is 14 there any regulation or guidance that says this 15 assumption was improper?
16 MS. CURRAN: This was based on Dr.
17 MacDonald's expert opinion.
18 JUDGE ARNOLD: Okay. Did the assumption 19 that PG&E make -- was it an uncommon assumption, or 20 are many plants assuming unreasonably?
21 MS. CURRAN: My understanding is that it's 22 a complex issue and that it hasn't made its way into 23 regulations. It's a concept that -- the system has a 24 memory of what went on before.
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126 JUDGE ARNOLD: Thank you.
1 Now I'm going to ask PG&E essentially some 2
of the same questions. You used data from another 3
plant, saying it was a reasonable surrogate for your 4
unit. Did you follow the guidance available in 5
selecting that plant?
6 MR. LIGHTY: Yes, Your Honor. Actually, 7
use of sister plant data is required by the 8
regulations and there is NRC guidance that explains 9
how to translate that information. And so PG&E fully 10 followed that process.
11 JUDGE ARNOLD: Would you happen to know 12 where in the regulations that requirement is?
13 MR. LIGHTY: I do not. I will get that 14 and let you know. As to the issue of discounting not-15 credible data, I do want to note that that data was 16 not disregarded. It's a very different thing --
17 determining that data is not credible is through a 18 scientific process. That process is outlined in 19 Regulatory Guide 1.99, and that is the process that 20 PG&E followed.
21 JUDGE ARNOLD: And the use of the non-22 Markovian embrittlement, do you know of -- is that 23 common within the industry, that -- is your modeling 24 inconsistent with other plants?
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127 MR. LIGHTY: No. It is consistent with 1
NRC requirements.
2 JUDGE ARNOLD: With requirements?
3 MR. LIGHTY: And guidance.
4 JUDGE ARNOLD: Just one other thing. The 5
removal of samples in testing -- now, I know 6
typically, when you remove it, the fluence the sample 7
has received is greater than the fluence for the 8
average vessel so that you're looking at some future 9
operation.
10 Now, the last sample you removed that you 11 consider to be good data -- the fluence it received 12 was characteristic of what time in that vessel life?
13 MR. LIGHTY: So it went through the entire 14 initial operating period of 40 years. And so that's 15 why Capsule B was not withdrawn because it was not 16 required for the initial operating term.
17 JUDGE ARNOLD: Do you have a comment?
18 MS. CURRAN: We would just disagree that 19 withdrawal of Capsule B was not required for the 20 initial license renewal term. And that's discussed in 21 Dr. MacDonald's September 2003 expert report. This is 22 a capsule that was put in as part of the initial 23 surveillance program. It was approved as -- in the 24 initial operating term, and it was only after PG&E 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 decided to apply for a license renewal that the NRC 1
and PG&E started to talk about it as if it was related 2
to licensing renewal and could be postponed 3
indefinitely.
4 JUDGE ARNOLD: That sample is going to be 5
removed in 2025?
6 MS. CURRAN: Well, that's -- you know, 7
there's been several attempts to remove it that were 8
unsuccessful. The latest request for an extension 9
said we will try, and the NRC said okay to try. And 10 that's all there is. There's no, this is the end; 11 this is the ultimate deadline. The can just keeps 12 going down the road.
13 JUDGE ARNOLD: Question for staff. Will 14 there come a time where you will tell PG&E that that 15 sample needs to be tested? Or is this something that 16 could be in there forever?
17 MR. WACHUTKA: Your Honor, this isn't 18 something that the Licensee just has to try. The 19 current withdrawal schedule that's approved by the 20 staff says that this capsule has to be removed in 21 either fall of 2023 or spring of 2025. This isn't 22 something -- 2025 didn't happen later. That was 23 always what the schedule change stated.
24 And then the AMP that we would approve as 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
129 part of approving a license renewal application --
1 that is what would solidify this, and then the AMP, if 2
it's consistent with the GALL report, says that before 3
the end of the period of extended operation, a capsule 4
has to be withdrawn that has one to two times the 5
fluence at end of life.
6 And so that's the requirement from the 7
GALL. And the GALL is something that the Commission 8
has said if you meet the GALL, then you meet our 9
regulations.
10 JUDGE ARNOLD: So PG&E doesn't have to 11 make a commitment to remove it since there's a 12 requirement to remove it.
13 MR. WACHUTKA: Yes. They'd be required by 14 their aging management program that would be approved 15 as part of the licensing renewal application approval.
16 JUDGE ARNOLD: Okay. Im out of 17 questions on that.
18 JUDGE MERCER: Any other questions on 19 Contention 2?
20 All right. Before we move on to 21 Contention 3, I will throw open to Counsel if you 22 briefly -- and I emphasize briefly -- have any 23 additional comments on Contention 2 that you think may 24 be brought to our attention now versus in the final 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
130 argument, you now have the ability to do that.
1 Ms. Curran?
2 MS. CURRAN: I'm sorry that I don't have 3
a copy with me of the letter that the NRC wrote to 4
PG&E allowing the most recent extension of time for 5
removal of the capsule, Capsule B. But my clear 6
recollection is there's no hard and fast deadline and 7
that there's wiggle room if theres still problems.
8 I could be wrong. I'd be very happy to 9
send the letter to the Licensing Board just to 10 complete the record as to where things stand with 11 Capsule B. But my recollection is there's no firm 12 deadline for removing Capsule B. There's no firm 13 deadline for removing Capsule B in the license renewal 14 application.
15 MR. WACHUTKA: Your Honor, I can give you 16 the ML number for that letter. It's ML23199A312.
17 MS. CURRAN: 23 --
18 MR. WACHUTKA: 199A312.
19 MS. CURRAN: Thank you.
20 JUDGE ARNOLD: Okay. And that letter 21 specifies it will be withdrawn --
22 MR. WACHUTKA: 2023 or 2025. Yes, Your 23 Honor.
24 JUDGE MERCER: Mr. Lighty, anything final?
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131 MR. LIGHTY: Yes, just briefly on the 1
regulation regarding determination of credibility and 2
use of sister plant data is 10 CFR Section 50.61.
3 And I would just sum up here that the 4
criticisms that we're hearing today are all about 5
processes that have already occurred, CLB information.
6 And the basis for those criticisms is a disagreement 7
with the NRC's regulations and guidance.
8 And so we have, in addition to the lack of 9
a genuine dispute in the petition or in the 10 declaration, the basis of the alleged disagreement is 11 simply outside the scope of this proceeding on 12 multiple levels.
13 JUDGE MERCER: Mr. Wachutka?
14 MR. WACHUTKA: Your Honor, the NRC staff's 15 position is that record reflects that Contention 16 Number 2 does not meet the contention admissibility 17 requirements for genuine dispute or for scope. It has 18 to do with current licensing basis issue, and it is 19 properly in the 2206 petition process before the staff 20 where the Commission put it. And there is nothing 21 further for the Board to rule on in these matters.
22 JUDGE MERCER: Thank you, Counsel.
23 Turning now to Contention 3, Coastal Zone 24 Management Act, we read Contention 3 as claiming 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
132 PG&E has not demonstrated compliance with the Coastal 1
Zone Management Act, or CZMA, because it did not 2
include with the license renewal application a Coastal 3
Zone Management Act concurrence from the California 4
Coastal Commission.
5 Is that a
correct reading of the 6
contention, Ms. Curran?
7 MS. CURRAN: Yes.
8 JUDGE MERCER: Now, before we proceed 9
further, as formulated in the petition, Petitioners 10 were challenging Commission regulations, specifically 11 10 CFR 51.45(b), (c), and (d). But that aspect has 12 been withdrawn; is that correct?
13 MS. CURRAN: That's correct.
14 JUDGE MERCER: So, turning back to the 15 sole and only aspect of Contention 3, the Coastal 16 Management Zone Act compliance issue, PG&E identified 17 the Coastal Zone Management Act in its environmental 18 report and included in the LRA a copy of the 19 consistency certification that it submitted to the 20 California Coastal Commission.
21 And a cite, Ms. Curran, in the petition at 22 footnote 37 seems to confirm that PG&E was required to 23 submit nothing more than the consistency certification 24 that it submitted to the application -- or that 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
133 submitted with the application.
1 So my question to you, Ms. Curran, and 2
that cite that you all put in footnote 37 says, quote, 3
applicants must submit to both the NRC and to the 4
state a certification that the proposed activity 5
complies with the enforceable policies of the state's 6
program. If the Coastal Zone Management Act applies 7
to the project, the NRC cannot issue its license or 8
permit until the state has concurred with the 9
applicant's certification of a coastal consistency 10 determination.
11 So my question, Ms. Curran, is what part 12 of the Coastal Zone Management Act requires PG&E to 13 have submitted anything more on the Coastal Zone 14 Management Act with the application than it already 15 has submitted? Where is the failing on the part of 16 PG&E on the Coastal Zone Management Act?
17 MS. CURRAN: The failing of PG&E is to 18 receive approval from the California Coastal 19 Commission of its certification.
20 JUDGE MERCER: Now, I understand that the 21 Coastal Zone Management Act requires, ultimately, 22 before license renewal, a consistency determination 23 either by the California Coastal Commission or the 24 Secretary of Commerce.
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134 Are Petitioners taking the position that 1
that determination has to be included with the 2
application? And if so, where is that? Because I did 3
not find that in the statute or any of the regs 4
implementing the statute.
5 MS. CURRAN: I'm not aware of a regulatory 6
requirement, other than the NEPA requirement, for 7
including a copy of the certification. But the 8
statute does require it. And our position is that the 9
application cannot be proved without the consistency 10 determination.
11 I think that the arguments against 12 admissibility of this contention are that it's 13 premature and that we haven't reached a state yet 14 where it's clear that it's not going to be approved.
15 We feel that we absolutely -- we have an ironclad 16 obligation to raise issues as soon as we can identify 17 them.
18 JUDGE MERCER: I understand that, Ms.
19 Curran, but we have to justify in our decision -- if 20 we admit Contention 3, we have to justify that PG&E 21 hasn't done something it was supposed to do. And as 22 I read the Act and the implementing regulations, it's 23 done everything it was supposed to do at this point in 24 time.
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135 And so how do we justify admitting 1
essentially what would be a placeholder contention for 2
the possibility that the staff would ultimately end up 3
with a
license renewal without a
consistency 4
determination?
5 MS. CURRAN: We're not relying on the 6
NRC's regulations regarding the content of license 7
applications.
8 JUDGE MERCER: I understand that.
9 MS.
CURRAN:
We're relying on an 10 independent statute, a statutory requirement. Now, 11 it is evident right now, because of the letter that 12 was written by the CCC to PG&E in December, that the 13 CCC does not consider the certification submitted by 14 PG&E to be adequate.
15 That is what we're relying on for our 16 contention, a statutory requirement that is essential 17 for approval of the license renewal application has 18 not been satisfied. And that's the basis for our 19 contention.
20 JUDGE MERCER: All right. So, just so I 21 understand, the fact that the California Coastal 22 Commission has come back and said to PG&E, you 23 submitted this certification; we require additional 24 information before we start our review time -- 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
136 what the Petitioners contend PG&E somehow has not 1
complied with some requirement, because the Coastal 2
Commission has come back and said, we need more 3
information?
4 MS. CURRAN: The status at this point is 5
that the certification, which has been submitted, has 6
been rejected.
7 JUDGE MERCER: Well, I don't know that I 8
agree with you that it's been rejected. As PG&E cited 9
in its answer, there are provisions dealing with 10 essentially the rejection, which is the California 11 Coastal Commission at the end of its time period says 12 no.
13 And a
situation provided in the 14 regulations that allows the California Coastal 15 Commission to come back and say to PG&E, we need more 16 information before we can start our time to review 17 this -- and that's how I read that letter that was 18 submitted because it specifically came out and said, 19 our time isn't starting; you need to give us more 20 information. I didn't read anywhere where it said, 21 boom, no, you're not getting your consistency 22 determination from us.
23 So I don't know that I agree that the 24 California Coastal Commission has denied it 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
137 rejected it. What I'm trying to find is, what is it 1
that the statute requires that hasn't been done that 2
would allow us to admit this as a contention? Because 3
as I look at the status of things, PG&E has done 4
everything that it was supposed to do. It's just 5
working with the California Coastal Commission toward 6
ultimately getting that consistency determination.
7 MS. CURRAN: What we're trying to protect 8
against here is, had we waited till later in this 9
process if there's still problems with this coastal 10 certification and we put in a contention, we would 11 have thought in all likelihood we would get a ruling, 12 you should have come in when you knew there was a 13 problem at the very beginning. At the very beginning, 14 you knew that this certification was not being 15 accepted by the CCC. And now you've waited too long.
16 This is a common experience of intervenors 17 and petitioners in NRC licensing cases. If you, the 18 Licensing Board, want to rule that we're premature, we 19 would appreciate guidance on what a timely contention 20 would look like because this is an ever-plaguing 21 problem is to know -- to be early enough to raise 22 issues when it's really not clear what's going to 23 happen.
24 JUDGE MERCER: Well, I appreciate 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
138 response. And one of the things that I am learning 1
after my recent appointment here is I'm not able to 2
give legal advice anymore. So we can't give you any 3
advice on that.
4 But what I can do is ask a question that 5
I had for the staff, which is, Mr. Wachutka, if we 6
don't admit this contention, what is Petitioner's 7
remedy should PG&E ultimately not get that consistency 8
determination and somehow the license renewal comes 9
through, what should Petitioners do?
10 MR. WACHUTKA: Your Honor, Mr. Murphy is 11 going to address Contention 3 for the staff.
12 JUDGE MERCER: Okay. Sorry, Mr. Murphy.
13 Go right ahead.
14 MR. MURPHY: Yes, Your Honor. And so 15 there's a previous Commission decision which kind of 16 explains the correct remedy in that kind of a 17 situation. I'll provide the citation for that 18 Commission decision.
19 So, North Anna Power Station Unit 3, there 20 was CLI-12-14 decided in 2012. And so, in that case, 21 essentially, the Board took an approach which is kind 22 of sought here by Petitioners. They decided to keep 23 the proceeding open despite not having any live 24 contentions with a set schedule, including some 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 milestones such as the supplemental environmental 1
impact statement and the safety evaluation report, to 2
allow Petitioner to submit additional contentions as 3
information became available.
4 But in that case, the Commission said, no, 5
that's not the correct approach; the Petitioner needs 6
to pursue the motion to reopen, which is found in 10 7
CFR 2.326. And so that would be the appropriate 8
remedy if that hypothetical situation came about.
9 And there's two things I'd like to 10 mention, too, just to kind of head off that idea that 11 the staff would go ahead and issue the licenses 12 without California Coastal Commission concurrence or 13 in the face of a rejection.
14 And so the first thing is there's a 15 presumption of administrative regularity that the 16 staff will willfully and properly carry out its 17 duties. And also, two, the staff faced a pretty 18 similar situation like that in a recent license 19 renewal proceeding.
20 So, for Surry Power Station, Units 1 and 21 2, the record of decision was Mike Lima 20091 Lima 22 985.
23 JUDGE MERCER: Sorry. Can you repeat 24 that?
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140 MR. MURPHY: Yes, Your Honor. So Surry 1
Power Stations, Unit 1 and 2, Mike Lima 20091 Lima 2
985. And so, in that case, the Applicant had not 3
obtained the concurrence from the appropriate state 4
agency by the time the staff completed its safety 5
evaluation report and a supplemental environmental 6
impact statement.
7 But the staff held off until the Applicant 8
did obtain that before it issued the renewed licenses.
9 And so there's not just a presumption but also a 10 recent example where the staff complied with the CZMA 11 in that sense.
12 JUDGE MERCER: Counsel for PG&E, would you 13 like to weigh in on the -- don't feel like you have 14 to, but I want to give you the opportunity to weigh in 15 on what the remedy would be if, in fact, we don't 16 admit this contention. And not that we're saying the 17 staff would violate and act not in conformity, but 18 what would happen if, in fact, that happened?
19 MR. LIGHTY: Sure. And I think the staff 20 is on the right track. The regulations in 10 CFR 21 2.309 Charlie provide for late filed contentions.
22 Contentions can be filed later if new information 23 arises that presents materially new information, such 24 as the theory that the NRC chose willfully to simply 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
141 violate the CZMA, because that's essentially what the 1
Petitioners are asking the Board to admit, a 2
contention on that hypothetical future potential 3
material dispute where the NRC purposefully chooses to 4
violate a statute.
5 But if that were to happen, they certainly 6
could come in with a new contention under 2.309(c).
7 JUDGE MERCER: And just so I'm clear, as 8
I looked at this particular issue, I mean, there was 9
a Commission decision in a PG&E Diablo Canyon case, 10 CLI-16-11, where the Commission specifically noted 11 that PG&E noted the NRC could not issue renewed 12 licenses for Diablo Canyon without concluding that 13 license issuance would be consistent with the Coastal 14 Zone Management Act, which required the issuance of a 15 state CZMA consistency certification.
16 And the staff, in its Standard Review 17 Plans for Environmental Reviews for Nuclear Power 18 Plants Supplement 1, operating license renewal draft 19 report for comment, NUREG-1555 Supplement 1, Revision 20 2 -- very long titles -- Section 3.2.1, page 3-3, 21 specifically addresses Coastal Zone Management Act and 22 says federal agency cannot issue a license or permit 23 until the state concurs.
24 So, with that background, Ms. Curran, 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
142 there anything in the petition that you have raised 1
that would lead us to believe that the staff is going 2
to ignore its requirements and act in derivation of 3
the law?
4 MS. CURRAN: I just don't want to 5
speculate about the future. And what we would really 6
like is a ruling on our contention by the Licensing 7
Board that would -- we want to protect ourselves. If 8
we raise this issue in the future for some reason or 9
other, I don't know what it might be, but we want 10 protection against any argument that we could have and 11 should have raised something when we became aware of 12 it.
13 JUDGE MERCER: I hear that, and I 14 appreciate that and understand that. But my question 15 is a little bit more specific. Because there is a 16 presumption of regularity that attaches to the actions 17 of government agencies, we have to look and say absent 18 clear evidence to the contrary, we presume that the 19 staff is going to act and improperly discharge its 20 official duties.
21 My question to you is, is there any clear 22 evidence to the contrary that you've put in the 23 petition that you want to bring to our attention that 24 might allow us to get over that presumption 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
143 regularity?
1 MS. CURRAN: No, we have not presented 2
evidence of irregularity by the staff. I would want 3
to ask Mr. Murphy if he could give that North Anna 4
cite one more time.
5 MR. MURPHY: Yeah. So It's North Anna 6
Power Station, Unit 3, CLI-12-14, and also 75 NRC 692.
7 And it was 2012.
8 MS. CURRAN: Thank you.
9 JUDGE MERCER: Do either of my colleagues 10 have any questions about Contention 3?
11 JUDGE ARNOLD: No.
12 JUDGE ARNOLD Because we are running late 13 in the day, I'm going to skip the conclusion on 14 Contention 3 from Counsel, and we'll wrap that into 15 the closing.
16 But before we get to the closing, I just 17 wanted to note that we do have a request by the CEC to 18 participate as a nonparty. I saw no oppositions to 19 that hit the docket.
20 But, Ms. Curran, do the Petitioners have 21 any opposition to the CEC participating as a nonparty?
22 MS. CURRAN: No.
23 JUDGE MERCER: Mr. Lighty, same question 24 to you on behalf of PG&E.
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144 MR. LIGHTY: No concerns.
1 JUDGE MERCER: And, Mr. Wachutka, same 2
question to you on behalf of the staff.
3 MR. WACHUTKA: No, Your Honor.
4 JUDGE MERCER: Thank you, Counsel.
5 All right. Before we close out the 6
argument today, as I've mentioned a couple times, 7
we're going to offer Counsel up to five minutes to do 8
any closing argument or closing summary to us. We 9
have listened very intently to all of your arguments 10 today, so please don't feel a need to repeat things 11 that we have gone over.
12 But, Counsel for Petitioners, we would 13 offer you the five minutes first, followed by Mr.
14 Lighty, followed by Mr. Wachutka. And then, Ms.
15 Curran, we'll go back to you with three minutes for 16 rebuttal.
17 If you don't want to use your five 18 minutes, if you don't want to use all of your five 19 minutes, please don't feel the need to take all five 20 minutes. But if you do opt to take those, Mr. Welkie 21 will start the monitor on green. It will then go to 22 yellow at three minutes and then will count down to 23 red. When it goes red, we'd ask you to please stop.
24 So, Ms. Curran, would you care for five 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
145 minutes?
1 MS. CURRAN: Judge Mercer, I don't have 2
five minutes. I just would like to say that the 3
Petitioners have raised some extremely serious issues 4
with respect to the safe operation, whether operation 5
of Diablo Canyon will be safe during the license 6
renewal term.
7 We appreciate the degree to which you have 8
shown close attention to our concerns, and we hope 9
that you will grant us a hearing on these very serious 10 issues. There are many people, members of our 11 organizations and other members of the public, who 12 will be depending on you to help us get at some of 13 these serious issues and really air them. Thank you.
14 JUDGE MERCER: Thank you, Ms. Curran.
15 Mr. Lighty?
16 MR. LIGHTY: Thank you, Your Honor. Just 17 one wrap-up comment on the final contention, and then 18 I'll give just a brief closing.
19 We were discussing the process and the 20 precedent regarding premature contentions. And I 21 think that the Licensing Board's recent decision in 22 the Turkey Point SLR proceeding, LBP-24-03 at pages 29 23 to 30, talks about a similar circumstance.
24 There it was where there was a required 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 consultation that must occur during the license 1
renewal application review process, something that 2
goes on into the future after the application is 3
submitted. And the Board there found that a challenge 4
to that process when the process had not yet completed 5
was premature. And there are citations to other 6
Commission precedent there that may be helpful.
7 But just to close very briefly, we've seen 8
the many overlapping reasons that all three of the 9
contentions are inadmissible here today as part of 10 this license renewal proceeding. But we want to 11 reiterate that Diablo Canyon is operating safely 12 according to every inspection, every review that is 13 done by the regulator. PG&E has followed regulatory 14 requirements.
15 Petitioners are certainly free to raise 16 safety objections. And the fact that their 17 contentions here may not be admissible in the license 18 renewal process does not mean that no one is 19 considering their concerns. There are just different 20 processes, different avenues, and different pathways 21 for them to raise those safety concerns.
22 PG&E takes safety very seriously. It's 23 its top priority. And so we don't want anyone to have 24 the misunderstanding that by determining that 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
147 contention is inadmissible, that concerns are not 1
being considered, because they certainly are by both 2
PG&E and by the regulator.
3 And for that reason, we ask you to deny 4
the petition.
5 JUDGE MERCER: Thank you, Counselor.
6 Mr. Wachutka or Mr. Murphy, whoever's 7
going to be concluding, you have five minutes if you 8
would care to use it.
9 MR. WACHUTKA: Yes, Your Honor. Contrary 10 to the NRC's license renewal framework, Petitioners' 11 arguments in contentions 1 and 2 effectively assert 12 that Diablo Canyon's current licensing basis is unsafe 13 and not that any one of the many AMPs or TLAAs in this 14 license renewal application will somehow not 15 sufficiently maintain that current licensing basis.
16 Therefore, these two contentions are not 17 within the limited scope of this license renewal 18 proceeding. Instead, such arguments are appropriately 19 addressed through the NRC's ongoing regulatory 20 process. And this has, in fact, already been 21 recognized by the Commission, which referred the same 22 arguments as those raised in Contentions 1 and 2 to 23 the NRC's 10 CFR 2.206 enforcement process, where they 24 are being reviewed by the relevant staff experts 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
148 now, who will issue a written response. And the 1
Commission may intervene in this process at its 2
discretion.
3 Nothing remains of these arguments to be 4
addressed in this license renewal proceeding. And 5
with respect to Contention 3, there is not a live case 6
or controversy that could give rise to the Board 7
granting a hearing in this instance.
8 If any new facts were to arise, the 9
regulations already address this. There's the 10 CFR 10 2.309(c) requirements for new or amended contentions 11 and the 10 CFR 2.326 requirements for motions to 12 reopen.
13 And so, taken together, Your Honor, since 14 there has been no admissible contentions pled, the 15 Board should deny the hearing request.
16 JUDGE MERCER: All right. Thank you, Mr.
17 Wachutka. Thank you, also, to Mr. Murphy, for your 18 contributions as well.
19 Ms. Curran, I promised you three minutes 20 for rebuttal to anything that was brought up by Mr.
21 Lighty or Mr. Wachutka. You have --
22 MS. CURRAN: I have nothing further.
23 Thank you.
24 JUDGE MERCER: Thank you.
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149 Before we close out, I want to let Counsel 1
know I did receive by email today, a written limited 2
appearance statement from an individual who purports 3
to live in, I believe, Santa Barbara, California, that 4
has been forwarded to -- for docketing. I believe it 5
has been docketed.
6 But I just wanted to let everyone know 7
that that was received. It should be there. If you 8
didn't receive email notice of it, please check the 9
docket. It should be there under the written limited 10 appearance statements.
11 I also want to thank you, Counsel, for 12 answering our questions and providing us with your 13 thoughts and arguments today. We truly appreciate 14 your preparation, your hard
- work, and your 15 professionalism here today. It helps make our job so 16 much easier.
17 We will consider your arguments and your 18 thoughts in making our decision on the hearing 19 request, which we intend to issue timely. On behalf 20 of the entire Board here, I would like to thank our 21 law clerk, Ms. Newman, for her assistance in the 22 matter, including preparing for the oral argument.
23 We also extend our sincere thanks to Mr.
24 Welkie and to Mr. Deucher, our IT specialists, to Ms.
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150 Ellis, our program analyst, who you may have met 1
before the argument began, and to Ms. Culler, our 2
litigation support assistant, for their technical and 3
administrative support.
4 Finally, we thank our court reporter, Mr.
5 Owen, for his work here today. And we want to extend 6
a special thank-you to all of the experts who have 7
been here, and also to thank all the members of the 8
public who have tuned in, either on the webcast or the 9
listen-only line, because transparency and openness is 10 a cornerstone of the NRC's proceedings. And we thank 11 you for taking advantage of that.
12 Counsel, I'd ask you to please remain here 13 in the hearing room for any clarifying questions from 14 the court reporter. And with that, we are adjourned.
15 (Whereupon, the above-entitled matter went 16 off the record at 4:55 p.m.)
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