ML12342A154

Transcript of Southern California Edison Company, San Onofre Station, Units 2 and 3, December 3, 2012, Telephone Conference - Pages 1-39

ML12342A154
Person / Time
Site:	San Onofre
Issue date:	12/03/2012
From:	Atomic Safety and Licensing Board Panel
To:
SECY RAS
References
RAS 23857, 50-361-CAL, 50-362-CAL, ASLBP 13-924-01-CAL-BD01
Download: ML12342A154 (42)

Text

Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION Title: Southern California Edison Company San Onofre Station Units 2 and 3 Docket Number: 50-361-CAL and 50-362-CAL Location: (telephone conference)

Date: Monday, December 3, 2012 Work Order No.: NRC-2059 Pages 1-39 NEAL R. GROSS AND CO., INC.

Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.

Washington, D.C. 20005 (202) 234-4433

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1 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3 + + + + +

4 ATOMIC SAFETY AND LICENSING BOARD PANEL 5 + + + + +

6 TELECONFERENCE 7 - -----x 8 In the Matter of: Docket No.

9 Southern California Edison 50 361-CAL 10 Co. San Onofre Nuclear 11 Generating Station, Units 12 2 and 3 50-362-CAL 13 (American Centrifuge Plant 14 --- - ---- - --- - - - --x 15 Monday, December 3, 2012 16 17 The teleconference came to order at 2:00 p.m.

18 Eastern Standard Time. E. Roy Hawkens, Chairman, 19 Presiding.

20 BEFORE:

21 E. ROY HAWKENS, Chair 22 GARY ARNOLD, Administrative Judge 23 ANTHONY BARATTA, Administrative Judge 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.w.

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2 1 APPEARANCES:

2 On Behalf of the Petitioners, 3 Friends of the Earth:

4 RICHARD AYRES, ESQ.

5 KRISTIN GLADD, ESQ.

6 JESSICA OLSON, ESQ.

7 AYRES LAW GROUP 8 1707 L Street, NW, Suite 850 9 washington, DC 20036 10 (202) 452-9200 11 On Behalf of the Respondent, 12 Southern California Edison Co. :

13 STEVE FRANTZ, ESQ.

14 MORGAN, LEWIS & BOCKIUS 15 1111 Pennsylvania Ave, NW 16 washington, DC 20004 2541 17 (202) 739-5460 18 On Behalf of the Nuclear Regulatory Commission:

19 DAVID ROTH, ESQ.

20 CATHY KANATAS, ESQ.

21 of: Office of the General Counsel 22 Mail Stop o 15 D21 23 U.S. Nuclear Regulatory Commission 24 Washington, D.C. 20555-0001 25 (301) 415-2749 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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3 1 On Behalf of the Amicus Curiae, the Natural 2 Resources Defense Counsel:

3 GEOFFREY FETTUS, ESQ.

4 1152 15 th Streetl NW Suite 300 5 Washington l DC 20005 6 (202) 289-2371 7

8 9

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4 1 PRO C E E DIN G S 2 2:02 p.m.

3 JUDGE HAWKENS: On the record. Good 4 afternoon. This is again Judge Hawkens. This is a 5 telephone conference call that has been convened for 6 the Southern California Edison Company case referred 7 by the Commission in CLI 12-20.

8 I'm joined by my fellow judges, Dr.

9 Anthony Baratta and Dr. Gary Arnold. And we're also 10 joined here by our law clerk, Ms. Onika Williams and 11 an administrative assistant, Ms. Karen Valloch.

12 Would the counsel for the parties please 13 introduce themselves for the record starting with 14 Petitioner, Friends of the Earth.

15 MR. AYRES: Yes, Judge. My name is 16 Richard Ayres. I'm counsel for the Petitioners, 17 Friends of the Earth. And my co-counsel Jessica Olson 18 and Kristin Gladd are here with me.

19 JUDGE HAWKENS: Thank you. Respondent 20 Southern California Edison.

21 MR. FRANTZ: This is Steve Frantz from the 22 law firm of Morgan Lewis & Bockius. We represent 23 Southern California Edison.

24 JUDGE HAWKENS: Thank you, Mr. Franz.

25 NRC staff.

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5 1 MR. ROTH: David Roth, R-O-T-H, for NRC 2 staff. Also speaking today will be Cathy Kanatas.

3 There is an addition, a number of attorneys and staff 4 who may be in and out of the conference call. But 5 none will be speaking.

6 JUDGE HAWKENS: Thank you.

7 And finally supporting the Petitioner.

8 MR. FETTUS: Thank you, Your Honor. This 9 is Jeffrey Fettus, G-E 0 F-F-R-E Y, Fettus, F as in 10 Frank-E-T-T-U-S for NRDC, the Natural Resource Defense 11 Council.

12 JUDGE HAWKENS: Thank you. And for the 13 benef it of the court reporter, he would be grateful as 14 would I if you would identify yourself before 15 speaking.

16 At the outset, Judge Gary Arnold would 17 like to read a statement concerning a two-year period 18 of employment he had with Southern California Edison 19 some 30 years ago. I will now turn it over to Dr.

20 Arnold.

21 JUDGE ARNOLD: This is Judge Arnold. As 22 stated in my biography on the NRC's public website 23 from 1981 to 1983 I worked for Southern California 24 Edison as a start-up engineer. I participated in fuel 25 load initial criticality, physics testing and power NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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6 1 ascension testing at San Onofre Nuclear Generating 2 Station Unit 2.

3 In 1983 I left SCE to pursue educational 4 opportunities. Since then, I have not returned to the 5 San Onofre Nuclear Generating Station. I have not 6 maintained any contacts with Southern California 7 Edison either financially, professionally or 8 otherwise. And I have not maintained contacts with 9 any of my former Edison colleagues.

10 I wanted to make sure the parties were 11 aware of my prior contact with Southern California 12 Edison. And I wanted to assure them that this short 13 period of contact that ended nearly 30 years ago will 14 not affect my ability to act impartially in this 15 proceeding.

16 However, if any party believes that the 17 foregoing facts warrant my recusal they shall file a 18 motion to that effect within seven days. That is no 19 later than Monday, December 10th.

20 JUDGE HAWKENS: Thank you, Dr. Arnold.

21 Does anybody have any questions on that matter?

22 Petitioner?

23 MR. AYRES: No.

24 JUDGE HAWKENS: Respondent?

25 MR. FRANTZ: No.

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7 1 JUDGE HAWKENS: NRC Staff?

2 MR. ROTH: David Roth for the Staff. No, 3 Your Honor.

4 JUDGE HAWKENS: All right. Thank you very 5 much.

6 The Commission in CLI 12-20 in addition to 7 directing the staff to determine whether the 8 replacements of the steam generators for Units 2 and 9 3 required a license amendment. Also directed the 10 Licensing Board to consider two issues: (I) whether 11 the NRCls confirmatory action letter constitutes a de 12 facto license amendment that would be subject to a 13 hearing opportunitYi and, if so, the (2) second issue 14 would be whether the petition submitted by Friends of 15 the Earth meets the standing and contention 16 admissibility requirements of Section 2.309.

17 The Board has reviewed the record and 18 determined that additional briefing on these issues 19 would be beneficial especially with regard to Issue 20 No.1.

21 Our preliminary view is that resolving the 22 first issue will involve addressing whether the 23 proposed actions in the confirmatory action letter 24 satisfy the criteria in Section 50.59 requiring a 25 license amendment. In our view, this presents a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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8 1 combined issue of law and fact. And to the extent 2 that the parties' briefs they're going to submit 3 pursuant to a briefing schedule we will announce here 4 address factual matters. They should provide an 5 affidavit, if appropriate, in support of any factual 6 assertions.

7 Later this week, the Board will issue an 8 order that will include specific questions we'd like 9 the parties to address. And it will also provide a 10 briefing schedule that we will discuss later in this 11 conference call.

12 We anticipate some of our questions will 13 require the parties to address issues of safety 14 significance as well as the analysis in support of the 15 CAL. Examples of the - Excuse me. In addressing 16 those factual issues, we anticipate that the Board and 17 the parties will require access to proprietary 18 versions of documents already in the record or cited 19 in the record.

20 Examples of those documents include the 21 steam generator tube wear analysis for Units 2 and 3, 22 the SONGS Unit 2 return-to-service report, the SONGS 23 steam generator operational assessment for tube-to 24 tube wear and the tube to-TSP wear depth diagram for 25 Units 2 and 3. And these documents all will be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., NW.

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9 1 identified in the order we will be issuing this week.

2 But the fact that they include proprietary 3 information will require the execution of non 4 disclosure agreement. So the first order of business 5 will be the preparation and execution of such a non 6 disclosure agreement.

7 And our instinct is that Respondent may be 8 the best entity to be the crew chief for the 9 preparation, coordination and execution of such a 10 document. Mr. Frantz, do you agree?

11 MR. FRANTZ: Before we even get there, 12 Judge Hawkens, let me express an extreme reservation 13 on this approach. I don't believe that these 14 documents are necessary to resolve the issue raised by 15 the Commission in CLI 12 20. The Commission has not 16 asked the Board and has not directed the Board to 17 consider the safety of restart. That's well beyond 18 the scope of the order. Instead, I thought the order 19 was very clear that it only wanted the Board to 20 consider whether the CAL letter is de facto amendment.

21 These other documents just are not related 22 to that question. And therefore I guess we would 23 object to such a broad scope inquiry by the Board.

24 JUDGE BARATTA: Mr. Frantz, this is Judge 25 Baratta here. Our understanding is that the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.w.

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10 1 Commission expects us to determine whether or not a 2 license amendment is required. In order to do that t 3 we turn to 50.59 which then looks at the impact on 4 safety of any proposed changes. These document do in 5 fact discuss that impact.

6 MR. FRANTZ: I understand t Judge Baratta.

7 But I dontt believe the Commission asked the Board to 8 consider whether the restart actions constitute any 9 need for license amendment under 50.59. It is not at 10 all unusual for plants to have adverse conditions.

11 And the fact typically there are hundreds t if not 12 thousands t of condition reports issued each year by a 13 licensee.

14 And obviously there is just no need for a 15 license amendment on these board types of issues.

16 It's routine for licensees to take corrective action.

17 The sole issue I think according to the 18 specific orders by the Commission are whether the CAL 19 consti tutes a license amendment, not whether all these 20 other activities require a license amendment under 21 50.59. If the Commission had wanted the Board to make 22 that kind of inquiry, it could have said so in its 23 order. And it did not.

24 MR. AYRES: Your Honor, this is Mr. Ayres.

25 We agree in general with the post suggested by the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.w.

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11 1 Board. In our view, the question here is as the 2 Commission has posed is to look at whether the changes 3 made by Southern California Edison in the proposed 4 response to the CAL constitute a proceeding that 5 should be a licensing amendment proceeding.

6 When we look at Edison's response, what we 7 see is a number of documents that are heavily redacted 8 and some documents that are cited but that are not 9 available publicly. For example, the response relies 10 heavily on benchmarking against other reactors, but 11 does not identify the other reactors. In our view, it 12 would be impossible for us to prepare a brief based on 13 the questions presented by the Commission without 14 access to these withheld and redacted documents.

15 Indeed, we have been preparing a list of 16 documents that we would like to submit to the Board 17 which we think should be made available to the 18 Peti tioners so that we can address the question 19 presented by the Commission.

20 JUDGE HAWKENS: Could I please heard from 21 either Mr. Roth or Ms. Kanatas on this issue?

22 MR. ROTH: Certainly, Your Honor. This is 23 David Roth for the Staff. I note the word of the 24 Commission's order is specifically directing the Board 25 to consider whether the confirmatory action letter NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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12 1 constitutes a de facto license amendment. By 2 contrast, Commission referred the 50.59 issue and the 3 alleged violation of 50.59, a steam generator 4 replacement, to the Staff. And thus when presented 5 with this issue to the Staff it appears that the issue 6 was very limited. It's a very narrow issue of whether 7 the CAL issued NCE constitutes a de facto license 8 amendment.

9 Absent seeing the order, I can't speak as 10 to what use the documents would or would not be that 11 Your Honors are referring to. But, in any event, the 12 Commission order is a very narrow order and it 13 shouldn't be extended to a broad inquiry into other 14 topics.

15 JUDGE BARATTA: You're quite correct that 16 we're not involved in the 2.206 issue that the Staff 17 is. However, these documents that we're asking for 18 are referenced in the CAL as attachments to it. And 19 therefore we believe are part of the appropriate items 20 to be looked at and determine whether or not as the 21 Commission asks us to do to CAL issued NCE constitutes 22 a de facto license amendment. That should be subject 23 to the hearing opportunity under Section 189(a).

24 MR. AYRES: Your Honors, we certainly 25 understand that the station under separate 2.206 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., NW.

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13 1 proceeding that the Commission has put into play and 2 likewise we don't challenge at all the Commission's 3 ability to use CAL. We think the question that the 4 Board has put here or that the Commission has put here 5 is whether in this instance the proposed response from 6 Edison and its support put this particular proceeding 7 into a category requiring a license amendment rather 8 than simply a CAL in response.

9 JUDGE HAWKENS: And that was Mr. Frantz 10 speaking, correct? This is Judge Hawkens.

11 MR. AYRES: I'm sorry.

12 JUDGE HAWKENS : Please remember to 13 introduce/identify yourself before speaking.

14 MR. AYRES: I beg your pardon, Judge 15 Hawkens. It was Richard Ayres speaking.

16 JUDGE HAWKENS: Oh l 11m sorry.

17 MR. FRANTZ: This is Steve Frantz speaking 18 in this case. The CAL itself does not reference any 19 particular documents. In fact, the documents that the 20 Board referred to post date the CAL itself. And 21 therefore again we don't believe that it's within the 22 scope of the CAL in terms of what has to be decided by 23 this Board.

24 JUDGE HAWKENS : Does anybody wish to 25 address the issue before the Licensing Board goes NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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14 1 offline for a moment?

2 Mr. Ayres I anything else to say on this?

3 MR. AYRES:

4 Honor.

5 JUDGE HAWKENS: Mr. Frantz?

6 7 JUDGE HAWKENS: Ms. Kanatas or Mr. Roth?

8 MR. ROTH: David Roth for the Staff. NO I 9 Your Honors.

10 JUDGE HAWKENS: Thank you. The Licensing 11 Board will go offline for a moment and l Mr.

12 Hendrixson I weill let you know when we return. Thank 13 you. Off the record.

14 (Whereupon a short recess was taken.)

15 JUDGE HAWKENS: On the record. Mr.

16 Hendrixson I this is Judge Hawkens. We/re back online 17 now.

18 We understand Mr. Frantz and Mr. Roth/s 19 statements that the Board is bound in its scope of its 20 inquiry by the Commission/s directive. But in order 21 to determine whether the confirmatory action letter 22 constitutes a de facto license amendment. We need to 23 determine and take into account the subsequent actions 24 which were authorized by that letter. And that means 25 taking a look at some of the documents including the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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15 1 proprietary information that were in those documents.

2 In our subsequent order l it will direct the 3 preparation of a non disclosure agreement.

4 Mr. Frantz l assuming that a non disclosure 5 agreement will be required l is this something that you 6 wish to act as crew chief for?

7 MR. FRANTZ: I willI Judge Hawkens. May 8 I request that the Board at least certify this 9 question to the Commission? I think this is a 10 tremendous expansion of the scope of what the 11 Commission intended.

12 JUDGE HAWKENS: We respectfully disagree 13 with you l Mr. Frantz. We don/t object if you seek to 14 have this issue appealed. But we view this as 15 squarely within the scope of the issue we/re directed 16 to address and resolve.

17 Having said that l we are going to ask if 18 such a non disclosure agreement could be prepared by 19 week/s end. What/s your view at this point on that l 20 Mr. Frantz? And you may want to talk to your 21 colleagues to discuss how you want to proceed.

22 MR. FRANTZ: The non disclosure agreement I 23 there are many forms out there that have been used in 24 the past under other proceedings. So that should be 25 a relatively simple matter to prepare.

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16 1 MR. AYRES: Your Honor. Because of other 2 commitments, it would be difficult for me to 3 JUDGE HAWKENS: Who is speaking please?

4 MR. AYRES: I am sorry. It's Richard 5 Ayres. Because of other commitments this week, it 6 would be difficult for me to complete by the end of 7 the week. But certainly by early next week we should 8 be able to.

9 JUDGE HAWKENS: In other words, coordinate 10 with Mr. Frantz and make sure you're on board with the 11 contents of the non disclosure agreement.

12 MR. AYRES: Yes. I think -

13 JUDGE HAWKENS: You shouldn't need more 14 than a week.

15 MR. AYRES: I think so, Your Honor.

16 JUDGE HAWKENS: What date would you be 17 looking at?

18 MR. AYRES: Perhaps next Wednesday.

19 MR. FRANTZ: This is Steve Frantz, Your 20 Honor. Again, I don' t think that's reasonable to 21 string this out for a week and a half. As you may be 22 aware, Edison has submitted a return-to-service plan 23 to the NRC Staff. That's under active consideration 24 by the NRC Staff. As soon as we get approval from the 25 Staff, we plan to restart.

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17 1 I'm sure the Friends of the Earth will 2 argue that we should not be allowed to restart until 3 this proceeding is over. I don't believe that's a 4 valid argument, but I certainly understand if they say 5 that. Therefore, to prevent any potential for impact 6 upon restart, we would like this proceeding to go off 7 as expeditiously as possible.

8 JUDGE HAWKENS: I concur with you, Mr.

9 Frantz. And, Mr. Ayers, although I sympathize the 10 fact that you're busy I know you do have other 11 attorneys working with you. These non disclosure 12 agreements are fairly standard. In fact, there's a 13 model non disclosure agreement in 65 NRC at 420. It's

• 14 one provided by the Commission.

15 But these, as you will know, are fairly 16 routine and I would not anticipate coming to agreement 17 of the contents of one should be that difficult. So 18 I will ask the parties to work together and endeavor 19 to have one as soon as possible and no later than this 20 Friday, the 6th of December.

21 MR. FETTUS: Your Honor, this is Geoffrey 22 Fettus of NRDC. Am I wrong in presuming that we would 23 be part of this non disclosure agreement? And I could 24 commit to being done by Friday.

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18 1 are wrong. Under our regulations and case law, the 2 right of access under non disclosure agreements is for 3 the Board and the parties to the proceeding. So 4 unless Mr. Frantz were willing to include you in this, 5 you ordinarily would not be entitled to access.

6 I should also mention -- I said that it 7 would be Friday, the 6th of December. I meant Friday, 8 the 7th of December.

9 MR. FETTUS: Thank you, Your Honor. This 10 is I understand that, but this is such an unusual 11 proceeding. I was wondering if in the process of 12 whatever you would be sending out this week if there 13 was something you were contemplating in terms of an 14 on-ramp for parties that would like to participate in 15 this proceeding. As you may recollect from our 16 response in June, we expressed a significant interest 17 in being able to participate and would happily follow 18 whatever strictures that Board sees fit in allowing 19 that on-ramp for parties to participate appropriately 20 without undue delay to any of the parties or 21 prejudice.

22 JUDGE HAWKENS: We will provide an on ramp 23 for NRDC to participate in support of Friends of the 24 Earth, Mr. Fettus. And I'll address that a little bit 25 later when I talk about the scheduling of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., NW.

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19 1 briefing.

2 MR. FETTUS: Thank you very much, Your 3 Honor.

4 JUDGE HAWKENS: Moving on, one of the 5 issues the Board is wondering about is who has the 6 burden of persuasion on the first issue. Hopefully, 7 that's not an issue we'll have to struggle with.

8 We'd only be confronting that if at the 9 end of the day all the arguments and the evidence 10 resulted in absolute equipoise. But I'm wondering if 11 at this juncture any of the parties have a view on the 12 issue of who has the burden of persuasion on the first 13 issue.

14 Mr. Ayres.

15 MR. AYRES: Your Honor, I will say I 16 haven't thought about this. But it does seem to me as 17 if to move to Friday of starting the reactor is 18 Edison. And since what's involved here is whether 19 this process is the appropriate one perhaps they 20 should have the burden of establishing that it is.

21 JUDGE HAWKENS: Your position does not 22 surprise us. It's not an unreasonable one. I'd like 23 to hear from Mr. Frantz.

24 MR. FRANTZ: Yes, Judge Hawkens. We're 25 still at the pleading stage. We haven't admitted any NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.w.

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20 1 parties yet. The Board has not yet ruled on the 2 standing or contentions submitted by Friends of the 3 Earth. At this stage of the proceeding, it's always 4 the burden on the Petitioner to present enough 5 information to substantiate that the Petitioner has 6 met its 2.309 of the regulations. And that's the 7 standard case law.

8 JUDGE HAWKENS: Thank you.

9 Mr. Roth, do you have any view you'd like 10 to share with us at this point?

11 MR. ROTH: David Roth for the Staff.

12 Certainly, the movement who in this case is not the 13 movement. It's the Petitioner for the hearing has the 14 burden of proof so that the issued CAL is a license 15 amendment.

16 JUDGE HAWKENS: All right. That will be 17 just be one of the legal issues we will ask the 18 parties to brief.

19 Another of the issues that we would like 20 briefed would be if the Staff's Section 2.206 inquiry 21 leads them to the conclusion that the steam generator 22 replacements require license amendments. What impact, 23 if any, that would have on this proceeding before the 24 Licensing Board?

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21 1 reaction to the parties, I'll just throw that out 2 there and say that's one of the issues that we will be 3 interested in having the parties to address as well.

4 Let's move on now to briefing schedule.

5 And Mr. Frantz indicated earlier that the Respondent 6 would like this proceeding to move with dispatch and 7 the Licensing Board shares that view.

8 We also realize we're approaching a 9 holiday season. And all the parties as well as the 10 Board will be benefit by good comprehensive, thorough 11 briefing of the issues presented.

12 I know the parties at this point are at 13 somewhat in the dark insofar as we haven't issued our 14 order identifying questions we want addressed. Nor do 15 they have the benefit of access to the proprietary 16 information.

17 Having said that, the Board's view is that 18 we should hear first from the Petitioner , give several 19 days for the amicus to provide any supporting views, 20 but not any time that would result in undue delay to 21 the briefing schedule. Within a period of time, we 22 would want Respondent and then the NRC to provide a 23 response. And then we would give a short period of 24 time to hear a reply from the Petitioner.

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22 1 Ayres. I share the company's concern about time and 2 yours as well. And we do not -- I want to assure you 3 want to drag this proceeding out. We think it's 4 important to get a decision expeditious and hopefully 5 a good one.

6 We do think though that given that there 7 are a number of documents which we haven't seen and 8 which we need to see in order to brief it that the 9 Board needs to provide some time for the exchange of 10 documents and analysis and perhaps for preparation of 11 expert reports or reports anyway that summarize the 12 facts for the Board and for the parties. So we would 13 insert a period of time for that factual element 14 before we got to the briefing.

15 MR. FRANTZ: Judge Hawkens, this is Steve 16 Frantz. That is paramount to a hearing even before 17 the petition to intervene has been accepted. Under 18 traditional NRC regulations and practice, there is no 19 wait to obtain discovery until the Board has ruled on 20 the petition and has admitted at least one contention.

21 The Board has not done that yet. So this idea of 22 getting documents and then preparing expert reports is 23 just simply premature at this stage.

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23 1 any regulations that apply as to this procedure that 2 apply in their terms. So we feel that the Board is 3 appropriately fashioning its own procedure here from 4 using templates that are in the regulations.

5 Our argue is that what you need to do is 6 to set up a schedule and a series of actions that will 7 in fact reach the right conclusion and give you what 8 you need to reach the right conclusion rather than 9 being hung up by trying to find exact replicas of this 10 process which don't exist in the regulations.

11 JUDGE HAWKENS: Could I please hear from 12 the staff on this matter? Mr. Roth?

13 MR. ROTH: Certainly. David Roth for the 14 Staff. As the Commission's order notes, we only need 15 consider the issues for contention admissibility under 16 2.309 if the Board concludes that issued CAL was a de 17 facto amendment. So until that first issue is fully 18 briefed, it's really premature to consider issues 19 beyond that.

20 And again, it's just the Commission's 21 plain language of its order is the confirmatory action 22 letter issued to SCE. And so that's the topic that 23 should really be subject to the first round of 24 briefing. And that shouldn't really have any 25 proprietary document access ease to fully bri that.

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24 1 JUDGE HAWKENS: WeIll once again as we 2 said earlier I Mr. Roth l we disagree with you on 3 whether it would require access of proprietary 4 information. Whether we would rely on it is another 5 matter. But we doni t know what s I in there. And 6 looking at that will give meaning to the confirmatory 7 action letter.

8 without that l what we/re left with is a 9 very broad statement. But without any factual it 10 provides very little factual understanding for the 11 Board and certainly insufficient factual understanding 12 for us to comply with the Commission/s direct in 13 resolving Issue No.1.

14 And that/s a threshold issue. We doni t 15 have to resolve Issue No.2 if we resolve Issue No. 1 16 in the negative. But Issue No. 1 has been placed 17 before us. It/s not like your typical standing and 18 contention admissibility issue.

19 We essentially have entities who have 20 status as parties before us which is the Petitioner 21 Friends of the Earthl Respondent Southern Cal Edison 22 and the NRC Staff. We want to hear from them. We want 23 to receive full briefing on the matter that will 24 inform us and allow us to provide a reasoned decision 25 for the parties and for the Commission/s benefit if NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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25 1 that's necessary.

2 MR. FRANTZ: Judge Hawkens, this is Steve 3 Frantz again. I might also add that the Commission or 4 the Board does not need to decide Issue No. 1 if it 5 rules against Friends of the Earth on Issue No.1.

6 And Southern Cal i fornia Edi son has obj ected to the 7 standing and contentions submitted by Friends of the 8 Earth and to its timeliness. So if the Board rules in 9 favor of us on any of those three issues, the Board 10 doesn't even need to reach the first question.

11 JUDGE HAWKENS: Thank you, but we think 12 you're flatly wrong on that based on the language used 13 by the Commission in framing the issues presented to 14 us, Mr. Frantz. We believe we have to resolve Issue 15 No. 1 and then if we resolve that in the affirmative 16 address Issue No.2. We think the Staff is correct in 17 their assessment of that.

18 We had originally - The Board had talked 19 about moving expeditiously. We had talked about, we 20 had contemplated the following schedule. And let me 21 say this was what we initially contemplated. It's not 22 written in stone.

23 We had talked about 14 days from the 24 issuance of our scheduling order or no later than 25 December 21 for the Petitioner to provide its brief.

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26 1 We're contemplating seven days ter the Petitioner 2 submitted its brief the amicus to submit r 3 brief or no later than December 28th.

4 We had contemplated giving the Respondent 5 and the NRC Staff ten days from receipt of the amicus 6 brief or no later than January 7th for submission of 7 their brief. And then replying providing seven days 8 for the submission of a reply by Petitioner to amicus 9 or no later than January 14.

10 Having said that, I think Mr. Ayres makes 11 sense in saying it's very difficult to determine 12 whether that time frame will be adequate given the 13 fact that you don't know yet precisely the scope of 14 the issues we're interested in and don't have access 15 to all documents that may be relevant to the 16 resolution of those issues.

17 So keeping in mind that the Board is as 18 anxious as Southern Cal Edison this to move 19 forward promptly. I'd like the parties after they 20 receive our scheduling order to get together and agree 21 upon a proposed briefing schedule and then submit that 22 joint proposed briefing schedule for the Board's 23 consideration.

24 I'll first ask Respondent, Mr. Frantz.

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27 1 submission of such a joint proposed order?

2 MR. FRANTZ: Judge Hawkens, I think the 3 schedule you laid out was an excellent schedule, 4 namely to have the Petitioners submit their brief on 5 December 21st and the other parties proceed based upon 6 that.

7 To have the Board issue an order and then 8 have the parties get together, you're presuming that 9 we can reach agreement on a schedule. I wouldn't be 10 so optimistic.

11 JUDGE HAWKENS: I have great confidence in 12 you, Mr. Frantz. You should have it in yourself as 13 well.

14 MR. FRANTZ: I have confidence in myself, 15 Judge. I'm not sure if I have confidence in the 16 abili of all the parties to agree on a schedule.

17 JUDGE HAWKENS: All right.

18 MR. FRANTZ: And then to have a filing on 19 that. Then the Board has to issue another order. And 20 we're already well into January or February before the 21 briefs I think eventually get filed.

22 JUDGE HAWKENS: Let me hear from Mr. Ayres 23 please.

24 MR. AYRES: Judge Hawkens, I think the 25 idea of our at least attempting to develop a schedule NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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28 1 it is a very good one. I am confident Mr. Frantz has 2 good negotiating skills and I hope mine are as good.

3 JUDGE HAWKENS: And I think everybody's 4 cooperative skills will match their other skills in 5 this I would hope.

6 MR. AYRES: Absolutely, yes.

7 JUDGE HAWKENS : Is that correct I Mr.

8 Ayres?

9 MR. AYRES: Absolutely.

10 JUDGE HAWKENS: Let me hear from the Staff 11 please on this scheduling matter.

12 MR. ROTH: David Roth for the Staff. We 13 believe we can achieve a January 7th schedule. We 14 know that we have to verify people's holiday coverage 15 to be absolutely certain. But we believe that's 16 doable for a brief from the Staff.

17 JUDGE HAWKENS : And if Mr. Ayres 18 determined that additional time is needed once he 19 receives our order, does the NRC staff believe it can 20 work in cooperation with them to come up with a 21 mutually agreeable proposed briefing schedule?

22 MR. ROTH: David Roth for the Staff.

23 Certainly, Your Honor.

24 JUDGE HAWKENS: All right. Thank you.

25 What the Licensing Board will do then is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.w.

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29 1 layout what it has said today, indicate in its order 2 its hope that this case will move promptly and 3 expeditiously, but also indicate that if a party 4 believes that this schedule is unworkable, that party 5 will advise the other parties and the parties then 6 will work together jointly to provide the Board with 7 a joint motion containing a revised schedule.

8 The Licensing Board will instruct the 9 parties in its order. It would like the briefs to be 10 standalone briefs such that they will not incorporate 11 anything by reference and that they will also provide 12 an appendix in which the parties include all documents 13 that provide material support for any particular 14 argument.

15 And if they are relying on a lengthy 16 document but only need a small extract from that 17 document, they should feel free just to include a 18 shortened version of it. But as I say we like the 19 appendix to include all documents that are material to 20 the arguments being advanced by the parties.

21 Any questions from any of the parties?

22 MR. AYRES: Judge Hawkens, this is Richard 23 Ayres again. As I mentioned earlier, we have been 24 going through the response to the CAL and then 25 developing a list of documents to which either are not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.w.

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30 1 included or are heavily redacted. I think we would 2 like to file that list with the Board because weld 3 like you to consider ordering that the Licensee and/or 4 Staff make those documents available to us 5 expeditiously. Would that be okay with the Board?

6 JUDGE HAWKENS: How soon could you get 7 that list to uS I Mr. Ayres?

8 MR. AYRES: I think by the end of the 9 week.

10 MR. FRANTZ: This is Steve Frantz. Again, 11 we would strongly object to this process. The rules 12 simply do not provide any opportunity for discovery 13 prior to admission of the contention. And what Mr.

14 Ayres is proposing is simply backwards. He wants to 15 have a hearing and discovery before even making a 16 threshold determination on the petition.

17 JUDGE HAWKENS: Mr. Frantz, the Board 18 understands your position. But it's important for all 19 the participants to this proceeding and the Board to 20 have access to material that's relevant to the 21 substantive issue posed to us by the Commission. And 22 to the extent there is information in subsequent 23 documents that give meaning to the confirmation action 24 letter thatls materi that the Board needs and 25 materials the parties must have access to in order to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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31 1 make their arguments to the Board.

2 Mr. Ayres, rather than providing me with 3 a list that will hold the issuance of the Board's 4 order, the Board will issue its order. The parties 5 will work together to agree and execute a non 6 disclosure agreement at the earliest possibility.

7 Once the non disclosure agreement has been 8 executed and put in the docket, there is no reason why 9 Friends of the Earth should not be entitled to the 10 relevant information that has a bearing on the 11 confirmatory action letter and will give meaning to 12 that letter and meaning to whether that letter 13 constitutes a de facto license amendment.

14 So I would expect that again once the non 15 disclosure agreement is executed you should be able to 16 work with Mr. Ayres in obtaining access to those 17 documents that are material. And that would not 18 constitute discovery.

19 JUDGE BARATTA: Mr. Frantz. This is Judge 20 Baratta here. I refer you to the October 3rd letter 21 that was sent to Mr. Callege (phonetic) which is part 22 and partial to the CAL. And I think you need to read 23 that to understand where we're headed.

24 MR. FRANTZ: Judge Baratta, I'm fully 25 familiar with that document. I was involved in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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32 1 process of developing it.

2 JUDGE BARATTA: It outlines the actions 3 that were taken as part of the CAL. I cannot 4 understand how you can say it I S not a part of the CAL.

5 MR. FRANTZ: Judge Baratta, the CAL itself 6 just says that Edison shall determine the causes and 7 implement actions to prevent loss of the tube 8 integrity, including establishing a protocol of 9 inspections and operational intersection (phonetic) or 10 outages for further inspections.

11 To me that's very straightforward. It 12 does not under the governing standards establish any 13 new authority for Edison. And that's the standard for 14 whether or not there's a need for a license amendment 15 as well as whether the action in question establishes 16 new licensing authority not previously held by Edison.

17 This imposes more restrictions on us.

18 JUDGE BARATTA: That's why we're here to 19 be determine that if I recall correctly.

20 MR. FRANTZ: I'm sorry, Judge Baratta.

21 JUDGE BARATTA: I bel ieve that's what 22 we're here to determine, isn't it?

23 MR. FRANTZ: I don't believe that you are 24 here to determine whether our restart actions require 25 a license amendment under 50.59 of the regulations.

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33 1 I believe you're here to determine whether the CAL 2 actions constitute a license amendment and using 3 governing precedent which states that if an action 4 expands the licensing authority of the licensees that 5 then requires a license amendment or constitutes a de 6 facto license amendment.

7 In fact, the Commission's order cites 8 cases where that very principle was evaluated. And in 9 particular I believe it's the Millstone case. And 10 that is I think a very straightforward and simple 11 question.

12 I don't think the Board needs to look at 13 whether every action we're taking is a 50.59 type of 14 an action. That's a staff compliance matter.

15 JUDGE BARATTA: You misinterpreted what I 16 said earlier. We'll find out in your brief.

17 JUDGE ARNOLD: This is Judge Arnold. We 18 seem to be not necessarily focusing on the same 19 interpretation of what the Commission has told us to 20 determine on the first issue. I myself am not -- I 21 will not be swayed very much by a determination that 22 the original steam generator replacement should or 23 should not have been done under 50.59.

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34 1 Unit 3. Unit 3 steam generators have demonstrated a 2 failure mechanism with safety implications.

3 So the question I have is does Unit 2 4 require a license amendment in order to restart with 5 steam generators that are currently installed that 6 could potentially demonstrate the same failure 7 mechanism as seen in Unit 3. That's what I would like 8 to see in the briefs, something about that.

9 MR. ROTH: Your Honor, David Roth for the 10 Staff. In reviewing page four of the Commission's 11 order, the Commission notes reliance on 2.206 and 12 notes that if Friends of the Earth prevails in a 2.206 13 argument and SCE needs a license amendment, then it 14 may be able to obtain the adjudicatory hearing that it 15 seeks. So with respect to 50.59 and license amendment 16 whether it's needed or not, I think that's separate 17 from what the Commission has put before the Board in 18 reviewing whether the Staff's CAL was a de facto 19 license amendment.

20 JUDGE ARNOLD: If we can determine that 21 starting up Unit 2 right now with those steam 22 generators in there is something that would require a 23 licensing amendment and if this is going to be done 24 using a process that has been initiated by the CAL, 25 then that process started by the CAL is in fact NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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35 1 intended to accomplish that license amendment.

2 MR. ROTH: David Roth for the Staff.

3 Again the CAL was issued prior to any proposal with 4 respect to whether a 50.59 violation might occur, 5 would occur, did occur, whether a license is needed or 6 not. The Staff is actively reviewing that right now.

7 And again the issue before the Board is just whether 8 the Staff's CAL is a de facto amendment.

9 MR. AYRES: Judge Arnold, this is Richard 10 Ayers. I think you are identifying exactly the issue 11 as we see it that's before the Board. And it is 12 because the response to the CAL is a critical part of 13 deciding whether this is a proceeding that should be 14 covered as a license amendment that we think it's 15 important to have a chance to review these documents.

16 Appreciate the Board's agreement in that and we will 17 follow the process outlined by Judge Hawkens.

18 JUDGE ARNOLD: Thi sis Judge Arno ld again.

19 One of the things this CAL process is attempting to 20 determine is what is the power that you can operate 21 safely at. Now that's certainly not a standard of 22 what you think of as a safety limit, what power can 23 the steam generators take for steady state operation.

24 But it does seem to be something that might require -

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36 1 specified in the technical specifications. And I 2 would think that weld have to consider whether that l 3 if it I S temporary modi cation I is in fact the type of 4 thing that requires a license amendment.

5 MR. FRANTZ: This is Steve Frantz. And I 6 Judge Arnoldi in response tothat l if welre operating 7 within our technical specifications I then by 8 definition we doni t need a license amendment for 9 operating at a reduced power level. Plants operate at 10 reduced power levels all the time.

11 JUDGE ARNOLD: So you/re saying you would 12 feel confident to operate at 99 percent power with 13 those steam generators.

14 MR. FRANTZ: I do not say that I Judge 15 Arnold.

16 JUDGE ARNOLD: You said at reduced power.

17 MR. FRANTZ: What I said that operation at 18 70 percent power is within our existing operating 19 authorization under the tech specs and the license.

20 And therefore we doni t need a license amendment to 21 operate at 70 percent power.

22 MR. AYRES: This is Mr. Ayres. I view 23 that as whether a license amendment is needed depends 24 on why the operation is limited to a lower percentage.

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37 1 along swimmingly at 100 percent and wants to reduce to 2 80 percent under its existing license, that would be 3 permitted. It's a lot less clear to us that a plant 4 which has had the problems that this one has which 5 then comes and asks for 70 percent limit on its 6 operation whether that is within the license or 7 whether that's really asking for an amendment to the 8 license.

9 JUDGE HAWKENS: Those are fair questions 10 and I think those are the types of questions that will 11 receive briefing by the parties and we will look at 12 very closely whether we should be guided solely by the 13 case law as suggested by Mr. Frantz or whether we will 14 be guided also by the criteria in Section 50.59 in 15 determining whether a license amendment was required 16 in this case.

17 Let me give one final opportunity for any 18 further inquiries or observations by the parties. Mr.

19 Ayers.

20 MR. AYRES: I do not think so, Judge 21 Hawkens. We appreciate the session and we'll work to 22 try to make sure we get this thing moving quickly.

23 JUDGE HAWKENS: Thank you.

24 Mr. Frantz.

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38 1 with what's been already said.

2 JUDGE HAWKENS: Thank you, Mr. Frantz.

3 Mr. Roth.

4 MR. ROTH: David Roth for the Staff.

5 Beyond reemphasizing our narrow view of what the 6 Commission has and noting the 70 percent proposal did 7 not exist at the time the Staff issued its CAL, we 8 have nothing further to add.

9 JUDGE HAWKENS: Thank you.

10 Mr. Fettus, I'll give you an opportunity 11 here in closing if you have any questions or comments.

12 MR. FETTUS: No, Your Honor. I have some 13 concerns regarding our amicus in terms of how we will 14 effectively contribute if we don't have access to any 15 of the documents. I'm sure I will be quite capable 16 and as you probably know I'm an experienced NRC 17 practitioner. But it is an unusual situation as you 18 and the fellow members of the Board have acknowledged.

19 And I'm happy to try and make sure we 20 comply wi th any schedule that you set out. And I 21 appreciate the opportunity to weigh in. But I'm 22 trying to figure out precisely how we will weigh in 23 without access to a lot of the documents that are at 24 issue here.

25 JUDGE HAWKENS: Thank you. I understand.

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39 1 And with that, we will now close. Thank you very 2 much. Off the record.

3 (Whereupon, at 2:55 p.m., the above 4 entitled matter was concluded.)

5 6

7 8

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CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission Proceeding: Southern California Edison Co.

San Onofre Station Unit 1 & 2 Docket Number: SO-361-CAL & SO-362-CAL Location: (teleconference) were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken and thereafter reduced to typewriting under my direction and that said transcript is a true and accurate record of the proceedings.

Official Reporter Neal R. Gross & Co., Inc.

'. ) NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.w.

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