ML12348A241

Transcript of 12/05/2012 Pre-hearing Conference Regarding San Onofre Units 2 and 3

ML12348A241
Person / Time
Site:	San Onofre
Issue date:	12/13/2012
From:	Atomic Safety and Licensing Board Panel
To:
SECY RAS
References
RAS 23880, 50-361-LA, 50-362-LA, ASLBP 12-923-01-LA-BD01
Download: ML12348A241 (124)

Text

1

1 United States of America 2 Nuclear Regulatory Commission 3 + + + + +

4 ATOMIC SAFETY AND LICENSING BOARD 5

6 7 IN THE MATTER OF DOCKET NO: 50-361-LA, 50-362-LA 8 SOUTHERN CALIFORNIA EDISON COMPANY ASLBP No. 12-932-01-LA-BD01 9 (San Onofre Nuclear Generating Station 10 Units 2 and 3) 11 12 13 Wednesday, 14 December 5, 2012 15 + + + + +

16 Rockville, Maryland 17 The prehearing conference commenced in Room T-3B45 of Two White 18 Flint North, Rockville Pike, Rockville, Maryland, at 9:00 a.m.

19 20 BEFORE:

21 Alex S. Karlin, Chair 22 Dr. Anthony Baratta, Administrative Judge 23 Nicholas G. Trikouros, Administrative Judge 24 25

2

1 APPEARANCES:

2 On Behalf of Citizens Oversight:

3 Raymond Lutz 4 Martha Sullivan 5 771 Jamacha Road, Suite 148 6 El Cajon, CA 92020 7

8 On Behalf of Morgan, Lewis & Bockius, LLP:

9 Steven P. Franz, Esq.

10 Stephen J. Burdick, Esq.

11 1111 Pennsylvania, Ave. N.W.

12 Washington, D.C. 20004 13 14 On behalf of the Nuclear Regulatory Commission:

15 David Roth, Esq.

16 David Cylkowski, Esq.

17 Joseph Lindell, Esq.

18 U.S. Nuclear Regulatory Commission 19 Office of the General Counsel 20 Mail Stop O-15D21 21 Washington, DC 20555-0001 22 23 24 25

3

1 P-R-O-C-E-E-D-I-N-G-S 2 1:00 p.m.

3 JUDGE KARLIN: Please be seated. Good afternoon. My name is 4 Alex Karlin. I would like to go on the record and to call this adjudicatory 5 proceeding to order. Id like to welcome the representatives of the parties.

6 Mr. Lutz, can you hear us?

7 MR. LUTZ: Yes. Thank you.

8 JUDGE KARLIN: Very good. And the representative of the 9 applicant and the staff. Well have introductions in a moment. But for now 10 I want to go through the initial formalities. Were here to conduct an oral 11 argument in the matter of Southern California Edison Company. And this 12 matter involves a challenge to Southern California Edisons application to 13 amend its license and to change some of the technical specifications in its 14 license for the two nuclear power plants or reactors that are located in San 15 Onofre, California. The docket number of this proceeding is 50-361-LA and 16 50-362-LA. Those two numbers reflect the fact that there are two separate 17 licenses and two separate reactors. The ASLBP number is 12-932-01-LA-BD01.

18 And this proceeding is being held pursuant to an order that this board issued 19 on November 20 calling for an oral argument. Todays date is December 5, 20 2012, and the location for this oral argument is the Atomic Safety and 21 Licensing Board Panels hearing room in Rockville, Maryland, where the 22 representatives of the applicant and the staff are here in person and the 23 petitioner, Mr. Lutz for Citizens Oversight, Inc., is participating via video 24 conference link out in San Diego, California.

25 First, Id like to introduce the board. To my right is Dr.

4

1 Anthony Baratta. Hes the associate chief judge technical of the Atomic 2 Safety and Licensing Board Panel. He has a Ph.D. in nuclear engineering, 3 former professor, and chair of the Nuclear Engineering Program at Penn State, 4 and he came also out of the Naval Nuclear Engineering Program of the U.S.

5 Navy.

6 Nick Trikouros on my left has a B.S., M.S. and an engineering 7 degree at Polytech University. He has over 30 years of experience in the 8 nuclear industry with senior positions with GUP Nuclear Corporation, and he 9 was involved and was one of the early responders at the Three Mile Island 10 unit two incident. Hes also been an adjunct professor at Rutgers 11 University.

12 My name is Alex Karlin. Im a lawyer by training, 30 years in 13 the practice of law and eight years of being a judge on the ASLBP, and so I 14 serve as the chair of this board.

15 Other members of our staff who are helping us on this matter, Ms.

16 Nicole Pickard, to my left, is a lawyer and a law clerk for the board. Ms.

17 Twana Ellis is here I believe, if you raise your hand. Shes administrative 18 assistant who helps us on matters.

19 Mr. Joe Deucher is an IT specialist who I believe is out there in San Diego 20 with Mr. Lutz helping arrange the video link.

21 Mr. Scott Burnell, I believe, is here. Mr. Burnell over there.

22 Hes with the Office of Public Affairs of the NRC and if any media 23 representatives are here, he would be able, hopefully, to respond to any 24 questions you might have.

25 Next, Id like to thank the United States National Labor Relations Board for

5

1 allowing us to use their premises, their offices out in San Diego to video 2 link Mr. Lutz and Citizens Oversight members in.

3 In particular Mr. Steve Sorensen whos a resident officer, as I 4 understand it, out there and Olivia Garcia, who is the regional director who 5 helped us with this, and Jennifer Kovacich [spelled phonetically], who is an 6 attorney who has been very helpful with getting it set up.

7 Now Id like to turn this and ask the parties to introduce 8 themselves and their members who may be with them, and perhaps we could start 9 with Citizens Oversight. Mr. Lutz, could you introduce yourself and your 10 team, please?

11 MR. LUTZ: Yes, thank you. My name is Ray Lutz. I am the 12 national coordinator for Citizens Oversight, which was founded in 2006 and 13 since incorporated in 2011. And what we try to do is to increase the 14 oversight of, you know, government at all levels. I have with me here Martha 15 Sullivan, and she is formerly with the California Public Utilities 16 Commission, what, 20 years at Public Utilities Commission, so she has quite 17 an experience with these matters, at least with regard to California and, you 18 know, the rate base and so forth, those sort of issues. So my background is 19 that Im a double E, electrical engineer, from San Diego State University 20 with a masters degree. Ive been in private industry for many years and 21 have had my own businesses. I am not a nuclear industry, you know, person 22 per se, but I have gotten interested in this due to the steam generator 23 failures at San Onofre which have been a big concern here as well as the, of 24 course, the Fukushima accident. And so those have brought my attention to 25 these issues.

6

1 JUDGE KARLIN: All right. Thank you, Mr. Lutz. And Ms.

2 Sullivan, thank you. Mr. Franz, perhaps you can introduce the team for 3 Southern California Edison.

4 MR. FRANZ: Yes. Im Steve Franz with the law firm of Morgan, 5 Lewis & Bockius here in Washington. We are counsel for Southern California 6 Edison or Edison, refer to Edison during the pre-hearing conference here. To 7 my right is Stephen Burdick, one of my associates, and then to his right is 8 Mark Morgan, who is a senior nuclear engineer with Edison.

9 JUDGE KARLIN: Okay. Thank you Mr. Franz. For the NRC staff, 10 could you introduce yourself please?

11 MR. ROTH: Certainly. David Roth, counsel for the staff. To my 12 right is David Cylkowski, also an NRC staff counsel, and to my left is Joseph 13 Lindell, also an NRC staff counsel.

14 JUDGE KARLIN: Okay. Mr. Roth, thank you. A few housekeeping 15 matters, and then were going to talk a little bit about what this proceeding 16 is and what this proceeding is not. But before that, just housekeeping.

17 Cellphones -- could everyone just put their cellphones on mute? And any 18 conversation should be conducted outside in the hall. The only exception to 19 that is Ms. Pickard, who Ive given special exception. If we have a 20 technical difficulty with regard to the video link, she and Mr. Deucher will 21 be in communication one way or the other hopefully to identify that there is 22 a problem and/or -- and hopefully then to fix it.

23 Second, webcast. We have arranged to have this proceeding 24 webcast, so I understand from our technical people that that webcast is 25 operating, and we welcome members of the public who are observing this via

7

1 the webcast.

2 Third, media. We welcome the media to the extent they're 3 watching or any in the room here; I dont know. Pursuant to NRCs published 4 rules, still cameras and video cameras need to be -- are welcome but need to 5 be in a stationary position and need to only use natural light, ambient 6 light, so that we dont have a disruption of the proceeding and that they 7 dont intrude on our discussions.

8 Next, Ill note that we are having a transcript made of this 9 proceeding, and that transcript will be posted on the NRCs website, the 10 electronic hearing docket, within a week or two at most.

11 Now Id like to cover for the benefit of the public, I think, and 12 those who are not entirely familiar with this process, Id like to talk about 13 four points. One is the role of this board, who we are, what we do. Two is 14 the history of this proceeding. Three is the purpose of todays proceeding.

15 And four is a clarification of what this proceeding is not. And because 16 theres a lot of things going on with regard to the San Onofre nuclear power 17 plant, we need to make sure people understand that we are only part of the 18 picture.

19 So, first, the role of the Atomic Safety and Licensing Board.

20 The three of us are members of something called the Atomic Safety and 21 Licensing Board Panel, a panel of a number of judges, 20, 30 judges, and we 22 were selected as the three to serve on this board to make the rulings in this 23 case. Federal law, the Atomic Energy Act, charges the Nuclear Regulatory 24 Commission with regulating civilian nuclear facilities in the United States, 25 and so were part of the NRC. If you think about it -- one way to think

8

1 about it is the NRC has sort of three branches: the commissioners, the NRC 2 staff, and the Atomic Safety and Licensing Board Panel. The commissioners.

3 There are five commissioners. Those are the executive branch of the NRC.

4 They run the show. Theyre appointed by the President. Theyre confirmed by 5 the Senate. Thats the executive function. The NRC staff. The 6 commissioners have a large regulatory staff working for them and working to 7 review applications, to process environmental impact statements. And the 8 people in the NRC staff are currently reviewing and processing Southern 9 California Edisons application to amend its license, and so they serve as 10 the administrative arm, one way of thinking about it, at the NRC. The Atomic 11 Safety and Licensing Boards role is significantly different.

12 We have a judicial, quasi-judicial role. We are -- we rule upon 13 cases that come before us, challenges that come before us that are raised by 14 an intervener, a citizens group, a state, or local entity, challenging 15 something that the staff and/or the applicant are trying to do. And we --

16 our job is to rule on those challenges, and thats what were going to try to 17 do here today.

18 Under the law -- Ill just talk about communications a little 19 bit. The Atomic Safety and Licensing Board sits here in the building of the 20 Nuclear Regulatory Commission. But as a matter of communications under the 21 law, it is prohibited for the NRC staff to have any communications with us 22 about this case and is prohibited for any of us to have any communications 23 with the NRC staff about this case. And the only exceptions are 24 communications that are made here in this open courtroom, hearing room, or 25 communications that are filed in writing that all the parties can see -- and

9

1 the public, for that matter -- and non-substantive communications, such as 2 trying to schedule a time and a date for this hearing and finding out if 3 people are available or not; logistics Ill call that. Likewise, this board 4 is separate from the five commissioners of the NRC. Theyre not allowed to 5 talk to us about this case, and were not allowed to talk with them about it, 6 and we dont. They dont conduct performance reviews on us. They cant dock 7 our pay if they dont like our decisions. They cant give us a bonus if they 8 like our decisions. We dont give performance reviews, and we dont talk 9 with them, and they dont talk with us. We try to call these cases as we see 10 them, and if somebody doesnt like it, well, they can appeal to the 11 commissioners, and the commissioners can either reverse us or affirm us. But 12 we dont talk with them either.

13 Now, all those rules are supposed to be there to help us be 14 independent and partial, and thats what we endeavor to do and believe we 15 are. And I just want the public to understand that, because when we talk 16 about the NRC, there are really three entities. And one of those entities is 17 the NRC staff, who is sitting here in front of us today. And were the 18 adjudicatory board. Finally, I would add with regard to the communication 19 rules that I just described, the same rules essentially apply to the 20 applicant and to the intervener. Obviously we cannot talk with the applicant 21 under the intervener and they cant talk with us. The only communications 22 that are available are in open court, in written form that are not open to 23 the public, or logistical emails, like how to set up this video conference 24 with Mr. Lutz and that sort of thing. Thats the role of the ASLBP.

25 The second is a brief history of this proceeding, this specific

10

1 proceeding. On July 29, 2011, Southern California Edison filed a license 2 amendment request with the NRC staff. The staff, about a year later in 3 August of this year, published a notice in the Federal Register saying that 4 they had received this application and giving the public 60 days within which 5 to file a petition to intervene and request a hearing to challenge it. On 6 October 17, Citizens Oversight filed a request for hearing, and in that 7 request they also included three contentions, and well talk about 8 contentions a little bit later. And a lot of our discussion here today will 9 be asking questions about those contentions. After they filed their petition 10 for hearing, the staff and the applicant filed answers to it, and they want -

11 - they asked us to deny the request for hearing. And then Citizens Oversight 12 filed a reply on November 16.

13 Meanwhile, on October 10 -- Im sorry, on October 25, pursuant to 14 the commissioners order, Roy Hawkins, the Chief Judge of the Atomic Safety 15 and Licensing Board, created this board and nominated the three of us to 16 handle this case. So we came into existence, this board, on October 25. And 17 after we read all the pleadings that were submitted by the parties, we 18 realized we had some questions that we thought if we got some answers it 19 would help us rule on this request for hearing. So we scheduled this oral 20 argument. We issued an order on November 20 scheduling this oral argument.

21 So thats the history of this proceeding. The purpose, the third item, the 22 purpose of todays proceeding. The purpose is for us to decide whether or 23 not to grant or deny the request for hearing that was filed by Citizens 24 Oversight. This is not the hearing. This is a preliminary decision as to 25 whether the hearing should be held at all. If it is, there will be an

11

1 evidentiary hearing where witnesses come in, exhibits are presented, people 2 testify, people ask questions, and we have a full trial. But right now were 3 just deciding whether or not to have a hearing.

4 As weve read the pleadings, three issues seem to have developed 5 in the pleadings of controversy. One is whether Citizens Oversights 6 petition is timely -- timeliness. Second is whether Citizens Oversight has 7 shown that it has standing to file this petition. And third is whether it 8 has filed any contentions that are admissible under the NRCs rules for 9 admissibility. And so were going to try to decide those issues. Were 10 going to ask some questions about those issues. Most of them, I think, are 11 going to focus on the contention admissibility, but there may be some 12 questions on the other points as well. Timeliness, standing, and contention 13 admissibility.

14 As to contention admissibility, the regulations that govern us, 15 that govern this proceeding, are the law. We are bound by those, and the 16 regulation 10 C.F.R. 2.309(f) provides the criteria for deciding whether a 17 contention is, quote, admissible. And those criteria include things like 18 whether the contention is within the scope of the proceeding, whether the 19 contention is material to the proposed license amendment, whether or not the 20 contention provides a, quote, concise statement of the alleged facts or 21 expert opinions which support, close quote, the contention. So those are 22 the things that a contention has to meet in order to be admissible, and were 23 going to ask some questions about that.

24 After today well issue a decision on whether or not to grant or 25 deny the petition for hearing. If we decide to grant the hearing request,

12

1 then the hearing will be held sometime later, several months from now, 2 presumably, at least. If we decide to deny the hearing request, then thats 3 the end of the proceeding, subject to appeal to the commission itself, who 4 can reverse us, or if you dont like that, you can go to the federal courts 5 and they can reverse us, the Federal Court of Appeals. So thats what were 6 here to do.

7 Fourth, I want to clarify what this proceeding is not. Theres a 8 lot of activity, apparently, thats going on with regard to the San Onofre 9 nuclear units two and three. All I know is what I read in the newspaper.

10 Im -- like Will Rogers, Im not privy to anything going on there, but I do 11 understand that in January 2012 unit two or three was shut down, that 12 currently both of the units are shut down. There are issues related to the 13 steam generators that are experiencing some sort of wear. And in March of 14 this year, 2012, the NRC staff issued a confirmatory action letter to the 15 Southern California Edison about the steam generators and that sort of thing.

16 October 9, 2012, the NRC staff and Edison conducted a public meeting about --

17 I think it was about the restart. And a lot of people attended and that was 18 a lot of interest there. November 30, staff and Edison conducted another 19 public meeting, and there was a lot of discussion there. Thats not what 20 were here to do.

21 Meanwhile, back at the ranch, on June 2012, another entity called 22 Friends of the Earth filed a separate request for an adjudicatory hearing.

23 They asserted, I believe, and its public record, that the -- among other 24 things, the confirmatory action letter was a de facto license amendment, and 25 they requested to have an adjudicatory hearing on that -- related to that

13

1 confirmatory action letter and the restart of the San Onofre facilities. In 2 November 8, the commissioners issued an order ruling that a board should be 3 created to deal with the Friends of the Earth request for hearing. On 4 November 19, such a board was created. Its a different board. Its not us.

5 Different board entirely. I might say that Judge Baratta, Dr. Baratta, is on 6 both boards, but it is a different entity, and were not here to deal with 7 that issue. So were not involved in those. Those are not within our 8 jurisdiction. Our role is limited. Our role is limited to the situation 9 that's -- Edison has applied to the NRC to amend its technical 10 specifications. Citizens Oversight has challenged some of those proposed 11 amendments, and theyve requested a hearing, and thats what were here to 12 talk about.

13 Any additions you have, Dr. Baratta?

14 JUDGE BARRATA: No, I have none.

15 JUDGE KARLIN: Nick?

16 JUDGE TRIKOUROS: Okay.

17 JUDGE KARLIN: All right. We want to talk about format before we 18 get started. This proceeding today will break down into three basic parts as 19 specified in our November 20 order. First, well have opening statements 20 from each of the parties, 10 minutes each. Well start with Citizens 21 Oversight; then well go to Southern California Edison, and then well have 22 the NRC staff, in that sequence.

23 Next, well go into what I would say the meat of the proceeding, 24 which is questions, questioning by the board. We will ask questions of the 25 lawyers and representatives of the parties about what they pled, what their

14

1 documents say, and help us understand whats going on here. And well break 2 that down probably into the three contentions, so we may break that down into 3 three different sections. I think we only have major questions on two of 4 them, two of the contentions, so it may only break down just to two main 5 parts of the questioning, and then the third part of our entire proceeding 6 today is closing statements. And everyone will get about five minutes to 7 give a closing statement in the same sequence as before.

8 As to logistics, for the people here in the room, please use the 9 podium when you -- when we call upon you for oral argument. Only one 10 authorized representative for each party may speak on this issue. If the 11 video link becomes pixelated, Mr. Lutz, Mr. Deucher, Ms. Sullivan, someone 12 needs to let us know if you cant see us or somethings going wrong out 13 there. And if that doesnt work, well try to fix it. Somebody needs to let 14 Nicole Picard know. That way if theres a technical problem theyre 15 experienced. We will probably take a break in about an hour and a half. We 16 think this maybe go a couple hours, three hours; we dont know. It could go 17 a little longer.

18 Finally, I also want to note that we received an addendum. The 19 Citizens Oversight filed an addendum on Monday; I believe it was, to its 20 reply brief. And Edison filed a motion yesterday, filed a motion to strike 21 that addendum, saying it was inappropriate. Were just going to hold that in 22 abeyance today. Were not going to rule on that. Well rule on that when we 23 ultimately rule on all of the issues here. But were just going to hold off 24 on that.

25 So with that, Im going -- we going to go to opening statements

15

1 but first Ill ask if the parties have any questions or additional issues 2 they think we need to put on the agenda here today. Mr. Lutz, maybe Ill 3 start with you. Anything additional?

4 MR. LUTZ: No, Im fine. Thank you.

5 JUDGE KARLIN: All right. Thank you. Mr. Franz?

6 MR. FRANZ: We have nothing.

7 JUDGE KARLIN: Okay. Mr. Roth?

8 MR. ROTH: One procedural item, Your Honor, with respect to one 9 designated representative speaking, it was unclear from the boards order 10 that that was going to be the case. And if it may please the board, we would 11 actually like to have the opening presented by Mr. Cylkowski and the closing 12 will be Mr. Lindell, plus any questions withstanding, and the actual 13 contentions will be me.

14 JUDGE KARLIN: Does anyone have any objection to that?

15 MR. FRANZ: No, and in fact we plan also to divide up the 16 argument, with myself taking Contention 1 and the opening statement and Mr.

17 Burger taking issues on timeliness standing and contentions two and three.

18 JUDGE KARLIN: All right. Mr. Lutz, are you there?

19 MR. LUTZ: Yes. All right. Yes, hello. I know we were told 20 that we could only have person speaking. I think its only fair that these 21 other parties are held to the same restriction. We were told that we could 22 have a maximum of three people here. We were able to get Ms. Sullivan to 23 come and shes been very helpful. But if were going to be held to only one 24 person speaking, wed like to request that the other parties have the same 25 restriction.

16

1 MR. ROTH: If it may please the board, David Roth for the staff.

2 JUDGE KARLIN: Yes.

3 MR. ROTH: The staff would have a no objection if Mr. Lutzs 4 other designated representatives also wish to speak.

5 JUDGE KARLIN: Well, we do have -- we did say three per each, and 6 theres three for the applicant, three for the intervener, two for the 7 intervener, and three for the staff. I think were going to let -- Id say 8 this, on the oral argument, we only want one lawyer to appear for the oral 9 argument on the answering of the questions. For the opening statement and 10 the closing statement, you want to put somebody else up for that, thats 11 okay. All right?

12 Okay. Were going to start with opening statement by the 13 intervener, thats Mr. Lutz. You have 10 minutes, sir. Were all ears.

14 MR. LUTZ: Thank you very much, and I want to thank everyone and 15 your courtesy and getting this set up. Everyone has been extremely courteous 16 and we really appreciate that. Ive already introduced myself. Ill skip 17 that part. Again, were organized to improve oversight of our government at 18 all levels. We quickly discovered that most governmental bodies have 19 insufficient public oversight, and this can frequently result in waste, 20 fraud, and abuse. The steam generator failures in Fukushima is an example of 21 waste. We learned over the course of the past six years that theres a 22 tendency for these organizations to innocently reduce public participation 23 over time.

24 There are two distinct avenues for public participation, the 25 first being opportunities such as this, which are spelled out by the law.

17

1 Secondly, the public can participate outside the scope of the regulations but 2 as specifically supported by our democratic republic form of government. To 3 be effective, the government must carefully monitor the activities of the 4 governmental body, and if its not performing its duties, even if its 5 following every letter of the law, the public can, through their elected 6 representatives, modify the regulations, open official congressional 7 hearings, or issue executive orders, for example. Essential to the effective 8 involvement by either avenue is a government or agency thats transparent and 9 welcomes monitoring by the public. President Obama on January 24, 2009, 10 first day of his administration, issued a memory entitled Transparency and 11 Open Government, which promoted that, in paraphrase, government should be 12 transparent, government should be collaborative, and government should be 13 participatory. Public engagement enhances a governments effectiveness and 14 improves the quality of its decisions. Knowledge is widely disbursed in 15 society and public officials benefit from having access to that disbursed 16 knowledge.

17 Subsequent to that initial action, the president issued Executive 18 Order 13579, which I think is the most odd number you can think of. But its 19 on July 14, 2011, and it explicitly provided for members of the public to 20 participate in an independent agency, such as the NRC. Quote, Wise 21 regulatory decisions depend on public participation and on careful analysis 22 of the likely consequences of regulation. Such decisions are informed and 23 improved by allowing interested members of the public," and I want to 24 underline that phrase, "interested members of the public to have a meaningful 25 opportunity to participate in rulemaking." Indeed, the NRC states that it

18

1 embraces the concept of openness and transparency. You can read on the 2 website. Yet, the NRC has a longstanding practice of limiting oversight by 3 the public, and this is, in fact, the underlying dispute of our contention 4 number one. The culture of suppression of public participation was initially 5 founded on reasonable decisions to improve efficiency by reducing the number 6 of hearings and the associated cost and time delays.

7 But it has, in the view of COPS -- thats my organization, 8 Citizens Oversight; we refer to that occasionally -- evolved into excessive 9 oppression which has resulted in serious errors and places the safety of the 10 public at risk and must be discontinued. Specifically, A) the NRC directly 11 limits public participation through a difficult gauntlet of requirements, 12 such as adopting very restrictive definitions for standing, such that 13 petitioners must have a very specific interest in the proceeding and not just 14 be interested as stated in the executive order. By reducing the window for 15 participation to the absolute minimum, the current proceeding includes 14 16 volumes of information, each with over 500 pages, and was processed for over 17 a year by the licensee, yet the public has only 60 days to study it and 18 respond in detail; and three, by strictly enforcing arbitrary submission 19 formats and detailed requirements which were going through today. B) 20 secondly, the NRC limits the number of proceedings which are available for 21 participation by reducing the number of license amendments which are 22 processed. One way this has been done is by moving critical information into 23 licensee-controlled documents so there is very little left in the core 24 license that will ever be changed. This, in fact, is the subject of this 25 petition to intervene, because the surveillance frequency specs must not be

19

1 removed from public review. Thirdly, the NRC interprets 10-CFR-50.59, the 2 like for like rule, extremely liberally, such that almost no change rises to 3 the level that requires a license amendment and, therefore, possible public 4 participation. The reason steam generator failure at the San Onofre plant 5 brings this issue to light, because Edison admitted that, quote, a major 6 premise of the steam generator replacement project was to avoid NRC 7 approval, unquote, meaning that they strove to avoid the license amendment 8 process.

9 So that, in summary, is our concern overall. Now, regarding 10 Contention 1 and your request for us to compare that with 10-CFR-50.36, the 11 technical specs, COPS claims that this is a valid contention. NRC 12 regulations that I mentioned includes the following provisions under C.

13 Technical specifications will include items in the following categories:

14 under subsection (i) safety limits for nuclear reactors to reasonably protect 15 the integrity of certain physical barriers that guard against the 16 uncontrolled release of radioactivity. Then under (ii) automatic protected 17 devices related to those variables having significant safety functions. And 18 I omitted some words. So, in essence, these provisions provide that the 19 safety specifications must include a first set of safety limits which must 20 not be exceeded to reasonably prevent the uncontrolled release of 21 radioactivity and a second set of safety system settings for automatic 22 protected devices, which must be ready to operate in the case of an accident 23 scenario starts to unfold. For purposes of this analysis, these will be 24 called class one and class two, respectively.

25 In practice, these safety limits are with respect to physical

20

1 parameters that can be measured. The safety limit consists of A) a value 2 that can be measured and B) a requirement that the measurement must be made 3 on a regular basis and compared with the safety limit. If either of the 4 existing limiting value does not exist or if never measured, then there would 5 be no limit. A surveillance requirement consists of values to be measured, 6 which are called surveillances and a maximum time interval, which are called 7 surveillance frequencies. The licensee has proposed a great many 8 surveillance frequency specifications be moved out of view from the public 9 and into licensee-controlled documents. But these safety limits are in the 10 class one. That is if they are not respected, the reactor can move out of 11 the safe operating limits and uncontrolled radioactivity release can result.

12 And therefore, they must not be moved out of the technical specifications.

13 To make this point perfectly clear, we can consider Attachment 1, Volume 7, 14 Chapter 3.4, Reactor Coolant System. If you have the amendment that I sent, 15 youll be able to look at that easily. There are over 50 critical parameters 16 that are proposed to be removed from this one section alone. This section of 17 the technical specifications deals with a system which is completely within 18 the containment building and deals with the critical cooling system of the 19 reactor. If this system does not operate as specified, then a devastating 20 accident can occur. The plant can begin to overheat and quickly degrade into 21 a loss of cooling accident, or LOCA. Such accidents are one of the most 22 important accidents to avoid. For example, consider specification 3.4, 4.1 23 on pages 88, 89, and 95 of the submitted document from Edison, which is, to 24 quote, verify each RCS loop is in operation and the frequency is 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />.

25 In NRC regulations 10-CFR-50.46, called Acceptance Criteria for

21

1 Emergency Core Cooling Systems for Lightwater Nuclear Power Reactors, 2 emergency core cooling systems, or ECCS, are required to be designed so they 3 can cool the core in the event of a postulated LOCA. This further underlines 4 the critical nature of reactor cooling system in general such that we can 5 clearly place the inspections on the system within the class one requirements 6 of 10-CFR-50.36. Therefore, these critical operating parameters must remain 7 in the technical specifications, and, therefore, Contention 1 is valid. The 8 NRC is therefore obligated to grant the request for a hearing by COPS in the 9 matter. This request for a hearing -- for a hearing is not -- quote, 10 Hearing is for hearing's sake, unquote, as mentioned in the decision by 11 CLI-01-24 back in 2001. In fact, we object to the notion that public 12 hearings are without value, even if the agency may view them that way.

13 The article called Nuclear Licensing, Innovation Through 14 Evolution and Administrative Hearings by B. Paul Cotter, Jr. from the 15 Administrative Law Review written in 1982 and referenced by CLI-01-24, states 16 in the conclusion, quote, The simple fact is that a case cannot be made that 17 hearings obstruct development of nuclear generated electrical energy. The 18 gravity and complexity of the issues concerning the public health, safety, 19 and welfare and the use of commercial nuclear power warrant the vigorous 20 discipline of adjudicatory resolution. And I hope the members of your body 21 agree with that, since thats your job.

22 Now, Im going to not go on with other details. I know you have 23 some questions about the things that we want to go on with. Ive just about 24 used up my 10 minutes, but I hope that puts into some perspective our point 25 of view as to why we must go forward with the hearing. Thank you.

22

1 JUDGE KARLIN: Thank you, Mr. Lutz. Mr. Franz, if you would. At 2 the podium.

3 MR. FRANZ: Good afternoon. Id like to thank the board for 4 having this pre-hearing conference. At the outset, Id like to note that 5 there is a defect that permeates almost all of the petition to intervene.

6 The license amendment request at issue here is very narrow. All it seeks to 7 do is convert our current tech specs to the improved standard tech specs.

8 But because it has a relatively narrow scope, the permissible contentions 9 also should have a very narrow scope. In contrast, most of the petition to 10 intervene goes well beyond the scope of our license amendment request.

11 Contrary to the apparent belief of COPS, this proceeding is not 12 here to raise allegations in general regarding operation of the plant, 13 regarding the general adequacy of our tech specs -- current tech specs. They 14 are not being changed in some respects. Or to discuss restart of the plant 15 following corrective action for steam generators. And Judge Karlin, I 16 believe that you, yourself, recognized that in your opening statement.

17 More specifically, as discussed in our answer to the petition to 18 intervene, we believe that the petition to intervene is defective on three 19 primary grounds. Discussing timeliness first, the Federal Register clearly 20 identified a deadline for filing petitions to intervene. COPS concedes that 21 its petition was filed late. The only excuse it has is that it misread the 22 Federal Register notice. Well, naturally, misreading of a legal notice is 23 not a sufficient basis for good cause for a late filing.

24 Second of all, COPS has not established standing to intervene in 25 this proceeding. COPS relies upon Mr. Lutz and his location, allegedly near

23

1 the plant, for representational standing. However, in license amendment 2 proceedings, mere proximity to the plant alone is not sufficient to confer 3 standing unless the amendment in question has some obvious potential for off-4 site radiological consequences.

5 In this proceeding, COPS has not identified any such obvious off-6 site potentials given our license amendment request. And therefore, there is 7 no proximity presumption for standing in this proceeding. In any event, even 8 if you assume that there is a presumption of standing based upon proximity, 9 Mr. Lutz does not satisfy that presumption. He lives more 50 miles away from 10 the plant, and, therefore, he does not have sufficient proximity to confer 11 standing. I might also add he does not have any other valid allegations of 12 any interest affected by this proceeding to confer standing.

13 In an attempt to cure some of these defects, the reply by COPS 14 identifies other members who do live purportedly within 50 miles of the 15 plant. However, they have not provided any affidavits from any of these 16 members that show that the members have agreed to have COPS represent their 17 interests in this proceeding. So, in summary, they have not established the 18 representational standing.

19 Third, COPS has not submitted at least one admissible contention.

20 The three proposed contentions have numerous deficiencies. Id just like to 21 highlight a few of those. Contention 1 argues that we should not be able to 22 remove surveillance frequencies from the tech specs to a licensee-controlled 23 document. Contrary to Mr. Lutzs allegations, we arent proposing to remove 24 any critical safety parameters to a licensee-controlled document. We arent 25 proposing to change the limiting safety settings, safety limits, or the

24

1 limiting conditions for operation. We arent even proposing to change the 2 surveillance requirements. What we are proposing to do is change the 3 surveillance frequencies and move those into a licensee-controlled document.

4 And there is nothing in 50.36 or the regulations that precludes such an 5 amendment to the license. In fact, a number of other plants have already 6 gone through this process, and the NRC has approved removal of their 7 surveillance frequencies to a licensee-controlled document.

8 COPS primary argument here is that relocation of the 9 surveillance frequencies will deprive the public of their right to oversee 10 changes to those frequencies in the future. However, the commission has 11 dealt with a very similar issue previously in the Millstone proceeding, which 12 the board referred to in its order. And the Millstone decision clearly 13 indicates that a mere relocation of a provision from the tech specs to a 14 licensee-controlled document does not provide a sufficient basis for 15 contention to intervene.

16 Contention 2 largely consists of complaints about provisions in 17 the current tech specs, not the proposed tech specs. In a license amendment 18 proceeding, however, a petitioner cannot complain about the current tech 19 specs. Its limited to making contentions regarding the proposed changes in 20 the tech specs. I might also add that COPS has, I think, mischaracterized 21 many of these changes. They are not changes vis--vis the current tech 22 specs. They are changes versus the improved standard tech specs. In some 23 cases, weve decided not to adopt improved standard tech specs. And almost 24 all of its complaints pertain to cases where weve chosen not to go from the 25 current tech specs to the improved standard tech specs. Since it has simply

25

1 misconstrued our application on Contention 2, that contention is not 2 admissible.

3 And finally, Contention 3 complains about the steam generator 4 repair and possible restart of unit two. Again, as Judge Karlin indicated, 5 that issue is outside the scope of this proceeding, and, therefore, that 6 contention should also be dismissed.

7 Again, thank you, Judge Karlin and the rest of the board, for 8 giving me this opportunity to make the opening statement, and I look forward 9 to answering your questions later on.

10 JUDGE KARLIN: Thank you, Mr. Franz. Mr. Cylkowski? For the 11 staff.

12 MR. CYLKOWSKI: Yes, your honor. Thank you. Good afternoon.

13 Again, my name is Dave Cylkowski, and with me at counsels table are Mr.

14 David Roth and Mr. Joseph Lindell. Today the NRC staff is prepared to 15 discuss why COPS has not met its pleading burdens and established an 16 admissible petition to intervene or why the petition to intervene should not 17 be granted, namely for three reasons.

18 First, the petition is filed after the deadline and COPS has not 19 demonstrated good cause to cure the failure to file after the deadline.

20 Second, the petition fails to establish standing for either Mr. Lutz himself 21 or COPS on an organizational standing level. And third, the petition fails 22 to establish any admissible contentions.

23 On the first question of timeliness, the petition should be 24 denied first because it was filed after the deadline. That deadline was 25 explicitly established in the Federal Register notice, noticing this license

26

1 amendment. At the head of the Federal Register notice, the deadline was 2 established as October 15, 2012. The petition came in October 17, 2012, 3 after the deadline. In its reply, COPS offers as a reason for the failure to 4 file by the deadline that it was misinformed about the deadline or that 5 perhaps that it misread what the deadline was. The NRC has regulations for 6 admitting contentions that are filed after the deadline, and misreading the 7 deadline is not one of those options. The option is to establish good cause 8 for failure to file after the deadline. And COPS' petition -- and COPS' 9 reply -- do not establish good cause.

10 On the question of standing, the petition should be denied 11 because Mr. Lutzs Citizen Oversight is not covered by the geographic 12 proximity presumption, that standing presumption, given that Mr. Lutz does 13 live more than 50 statute miles from San Onofre. And in any event, the 14 geographic proximity presumption does not apply to licensed member 15 proceedings where theres no obvious potential for off-site radiological 16 consequences. And the petition does not establish that obvious potential 17 either.

18 And finally, none of the three -- none of the three contentions 19 presented in the petition are admissible. Each contention suffers from legal 20 deficiencies, such as lacking an adequate factual basis or, in many cases, 21 being outside the scope of this license amendment proceeding. The NRC staff 22 submits that the pleadings in this case demonstrate that Citizens Oversight 23 has failed to meet its pleading burdens, and accordingly the board should 24 deny the petition. Thank you.

25 JUDGE KARLIN: Thank you. Okay. Now were going to turn to

27

1 asking questions focusing on, I believe, contention number one, and well go 2 through the same sequence essentially, which is try to focus on some 3 questions that we have for Mr. Lutz, Citizens Oversight, and then for Edison, 4 and then for the staff. Some of these questions may be a bit repetitive.

5 Please listen to them, because we may ask you the same question. And Mr.

6 Lutz, what were going to also do with regard to this is, since you have 7 essentially -- your entity has the burden, as it were, to show that your 8 contentions are admissible, were going to give you a shot at the end of each 9 contention. So well go Citizens Oversight, applicant, staff, and then well 10 ask you for any rebuttal you may have.

11 MR. LUTZ: Thank you.

12 JUDGE KARLIN: And some of the contentions and some of the 13 parties we have a lot of questions for perhaps and some of them we maybe 14 dont have a lot of questions. Please dont take that as an affront. We 15 just are trying to clarify our understandings and if the pleadings are clear, 16 we dont really need to ask questions about them. So well start with Mr.

17 Lutz and Citizens Oversight on contention number one.

18 Now, I want to read contention number one as I -- on page five of 19 your petition, contention number one reads as follows: quote, Petitioner 20 contends that removing surveillance frequencies from the operating license 21 document obfuscates the minimum requirements, may introduce human error, and 22 limits review by the public, close quote. And then you go on the say at 23 page six, quote, Petitioner claims that moving surveillance frequency 24 specifications completely out of the technical specifications document makes 25 it difficult for the public and other organizations to review the

28

1 surveillance frequencies in use and to provide useful feedback, close quote.

2 Is that a pretty good statement of your contention, Mr. Lutz?

3 MR. LUTZ: Yes. But let me just say that when I -- since Im a 4 beginner at this, I read the requirements for submitting contentions and it 5 said that they were supposed to be brief, and so I used a fairly brief 6 description of these contentions in my submission. I did go on to further, 7 you know, expound on that and elaborate on those details in my follow-up, so 8 -- but basically, yes. In essence, taking the surveillance frequencies out 9 of the document means that the public no longer can see what -- how often 10 these things are being checked. And I know that the licensee will say, 11 Well, theyre still the same. But the intention is to actually reduce the 12 amount of frequency that these are being surveilled so that they can check 13 them less often to save money apparently.

14 JUDGE KARLIN: Okay. Okay.

15 MR. LUTZ: And go through -- is that --

16 JUDGE KARLIN: That answers my question. What Id like to do, I 17 think, with the magic of technical expertise, pull up the Millstone decision.

18 Mr. Welkie, Andy Welkie, can you, youre going to put this on the screen and 19 hopefully everyone, yourself included, Mr. Lutz, will be able to see this, 20 because I want to ask some questions. Mr. Welkie, could you put up the 21 Millstone decision, and I believe it will focus -- move it to page eight of 22 that decision. Im going to need to have a screen here as well.

23 This is -- this page that we cited in our order. Its actually -

24 - the citation is 54 NRC, Page 360. And the second -- or actually, the first 25 full paragraph of that section of the Millstone decision. We're going to

29

1 call that the Millstone decision. This is decision by the Commission.

2 Please put the whole thing up. Make the whole screen that way, Mr. Welkie.

3 Can you do that? And focus in on the first full paragraph and sort of bring 4 us closer down on that. No, the first full paragraph, the one below that.

5 Yeah. In short -- okay. This is a decision by the Commission, which is 6 binding on us. And it says, "In short, seeking to maintain low-level 7 effluent monitoring procedures in the Millstone tech specs, the petitioner 8 may not simply complain generally of lost hearing opportunities, causing 9 future safety risks. An admissible contention must explain, with 10 specificity, particular safety or legal reasons requiring the rejection of 11 the contested license amendments."

12 So I read your pleadings, Mr. Lutz. I don't -- I'm not sure I 13 see an explanation with specificity of particular safety or legal reasons why 14 any given surveillance frequency must be maintained in the license or not.

15 Can you help me with that?

16 MR. LUTZ: Certainly. First, if I can speak in general with 17 regard to the Millstone decision, this was originally a two to one vote, so 18 there was someone who did not agree with the majority to go along with that, 19 at least at that initial level, and agree that they should go ahead and 20 intervene. So it was not unanimous and first of all, I'd like to say that I 21 believe that for petitioners coming forward, the members of the public and so 22 forth, should be given the benefit of the doubt. If something is not 23 unanimous, then they should go ahead with a hearing. Hearing is not the end 24 of the world. And you guys treat it like you got to avoid a hearing or 25 you're going to die.

30

1 JUDGE KARLIN: Well, let me just ask you this, Mr. Lutz. At the 2 Commission level -- and that's what I'm quoting is a decision by the 3 Commission -- it was unanimous. All five commissioners ruled that that 4 contention should not be admitted because a applicant had failed to -- the 5 petitioner failed to provide specific, particular safety reasons. So, 6 whether it's a five to one or three to two, that's binding on us. We're a 7 judicial body. Where is it in your petition that you have shown specificity 8 of why a given surveillance frequency represents a significant safety 9 problem?

10 MR. LUTZ: Okay, well, I didn't have a chance to respond before 11 all oral arguments, and so basically I'd like to do that now, if I can.

12 JUDGE KARLIN: Yes.

13 MR. LUTZ: But I'd like to say, if I can also, that that decision 14 is over 10 years old. We do have a new administration who issued an 15 executive order for more openness. And so I believe that if it was reviewed 16 again today, it might not be unanimous for that decision, and I hope it 17 wouldn't be.

18 Now, with regard to this question about whether surveillance 19 frequencies are important, basically you have two parts, and the one that I 20 referenced was much different. Like if you compare what happened in 21 Millstone, they were talking about effluent coming out of the plant somewhere 22 and they were worried about whether or not it was being measured well enough 23 by the licensee there. And the question is -- that was being entertained and 24 that whole decision was, if the licensee did not check that frequently 25 enough, would that actually do anything? Well, it might disturb the

31

1 residents in the area because they want to know how much effluent is coming 2 out. But it certainly would not necessarily result in an accident at the 3 plant because checking the effluent coming out of the plant and into the 4 streams is not directly related to the operation of the plant.

5 In contrast, the surveillance frequency specifications that are 6 being proposed to be removed by the licensee, in this case, are within the 7 containment building itself. And these are very, very critical systems that 8 have to be checked on a regular basis. And to say that we're going to put 9 this into a closed system where only the NRC and the licensee are going to 10 know how often these critical things are going to be checked, I think is 11 inappropriate and unacceptable to the public. We want to know if they are 12 saying we're not going to check the reactor coolant system, we're going to 13 start checking that instead of 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />, we're going to go down to once every 14 three days or a month. That's unacceptable for the public. We want to know 15 that that's happening, and so to move this over into the surveillance 16 frequency control program, which we then have no ability to monitor at all, 17 is unacceptable.

18 JUDGE KARLIN: All right, let me ask another question on that 19 same page. If you can pull that up, Mr. Welkie. The bottom of the page, the 20 last paragraph. The last paragraph reads, quote, "Technical specification is 21 therefore should be reserved for those reactor operation conditions or 22 limitations necessary to obviate the possibility of an abnormal situation or 23 event, giving rise to an immediate threat to the public health and safety,"

24 close quote.

25 The Commission goes on to say, "Not every detail needs to be in

32

1 the license, only those which have a significant safety impact." Now what I 2 was looking for in your petition, or your reply, was for you to identify 3 specific surveillance frequencies, like checking x every 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />. And you 4 would say, well that's a problem because that isn't sufficient because that's 5 a safety -- important safety issue -- and explaining to us and helping us 6 with that. I just see as sort of a general shotgun on everything.

7 MR. LUTZ: I did -- I assume it's fair for me to refer to the 8 actual document that's being proposed to be approved. On Page 88, 89 and 95 9 of volume -- what is it? It's the RCS volume, which I sent in my addendum.

10 And I'm referring to that here because I don't want to have to leaf through 11 so many pages. It is the one that's called the Reactor Cooling System. And 12 on Page 88, 89 and 95, they refer to the same specification, which is 13 3.4.4.1. And it is "verify each reactor cooling system or RCS loop that is 14 in operation." We want that done. We want the reactor cooling system to be 15 in operation. Now, they're saying that they can split up a surveillance 16 requirement into two parts. One is what they're doing, and the other part is 17 how often they're doing it.

18 JUDGE KARLIN: Well, let me just stop you there -- maybe stop you 19 there. This is how we do it. This is sort of iterative rather than, you 20 know, long answers. I'm looking at that -- Exhibit A, 88, 89, 95, 3.4.4.4.1.

21 "Verify each RCS loop is in operation 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />." Now I'm going to this 22 decision by the -- in Millstone. And it says -- you need to tell me, you 23 need to tell us why this change, if it is a change, has a safety 24 significance. You need to explain that in a petition, in a document. And 25 not just say that it has a safety significance. But tell us why you think it

33

1 does. You don't have to prove it, but you at least have to give us 2 something, you know, down there on paper, by an expert or some facts as to 3 why 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> is a problem. I don't know. Is it or isn't it? I don't know.

4 MR. LUTZ: Again, as I said earlier, you did say a brief summary 5 of the contention. I did not realize I had to go into enough detail for this 6 to be a real hearing. And I'm saying here that verifying that the reactor 7 cooling system loop is in operation is extremely important. This is 8 different than looking at the effluent is running into the stream. If the 9 effluent runs into the stream or not, even if we didn't check that in a year, 10 it wouldn't make any difference. If the RCS loop is not in operation, the 11 plant is going to melt down. And this is extremely important and no one will 12 deny this.

13 JUDGE KARLIN: How do we know that? How do we know that? I 14 don't know that. Mr. Lutz, I don't know that. You say it's going to melt 15 down. And the regs say -- 2.309F1 says you have to provide alleged facts or 16 expert opinions to support your allegation that it's going to melt down.

17 Have you done that? I don't know. And that's what I'm asking for.

18 MR. LUTZ: Sir, yes, actually, as I said before in my original 19 opening arguments, the 58 Federal Register final statement on technical 20 specs, it says, "In the Commission policy, licenses must retain in their 21 technical specs LCO's action statements and surveillance requirements for the 22 following systems, which operating experience and PSA have generally shown to 23 be significant to public health and safety." I assume this would be an 24 expert opinion. It's your own group here.

25 JUDGE KARLIN: All right. I have that reg in front -- Mr. Lutz,

34

1 I have that reg in front of me right now, and we can bring it up. Can you 2 give me the page of the 1993 policy? It's referring to the 1993 policy on 3 technical specifications?

4 MR. LUTZ: Yes.

5 JUDGE KARLIN: Okay, let's just get the cite on that correct.

6 The cite on that correct -- it is -- Mr. Welkie, could you bring that up? It 7 is Final Policy on Technical Specifications, Improvements for Nuclear Power 8 Reactors, 58 Fed Reg 39132, issued in the Federal Register July 22, 1993.

9 What page should we be looking at?

10 MR. LUTZ: Okay, so -- I'm looking at my copy here and it looks 11 like it's Page 5 and column 3. It's under the discussion of criterion 4.

12 JUDGE KARLIN: All right. Criterion 4 out of 50.36.c.2.i.

13 That's what you're talking about? Criterion 4? So let's see if we can get 14 it. We have a little bit different document.

15 MR. LUTZ: Yeah. Okay, so page numbers are not going to be the 16 same.

17 JUDGE KARLIN: Right.

18 RAYMOND LUTZ: This is going to be about two-thirds of the way 19 through. It's got bullet points next to it.

20 JUDGE KARLIN: Okay, Mr. Welkie, I believe that would be on Page 21 10, starting on Page 10 of our document, which is a discussion of criterion 22 4. So where is it, Mr. Lutz?

23 MR. LUTZ: Okay, there it is. Okay, so that's the part I was 24 reading there.

25 JUDGE KARLIN: Okay.

35

1 MR. LUTZ: Where it says, "It is a Commission policy that 2 licensees retain in their technical specifications LCOs, action statements 3 and surveillance requirements for the following systems, which operating 4 experience and PSA have generally shown to be significant to public health 5 and safety, and any other structure, systems or components that meet this 6 criterion: reactor core, isolation and cooling." Okay, I'm stopping right 7 there because the reactor cooling system has to do with reactor core, 8 isolation and cooling.

9 JUDGE KARLIN: Okay.

10 MR. LUTZ: And so, by your own documents, you support this.

11 JUDGE KARLIN: All right. That's a useful point. Yeah, well, it 12 does -- you can ask that question.

13 JUDGE TRIKOUROS: Mr. Lutz, is this referring to technical 14 specifications or surveillance frequency?

15 JUDGE KARLIN: There it is.

16 MR. LUTZ: This is Referring to the technical -- this document is 17 the Commission's final statement on technical specifications submitted at 18 that time.

19 JUDGE KARLIN: Yeah, it refers to surveillance requirements. It 20 doesn't say surveillance frequency. Maybe we can probe Mr. Frantz on that 21 and see what his rebuttal may be, but, all right, I see what you're citing, 22 Mr. Lutz.

23 Let's see. Now, maybe we could pull up 10-CFR50.36, Mr. Welkie.

24 Could you do that for us? Well, let me just -- hold up, hold up, Mr. Welkie.

25 Let's just go back to -- sorry for the difficulty -- to the Millstone

36

1 decision, and go to Page 9 of the Millstone decision, because these are the 2 things that concern us. We're bound by this, Mr. Lutz. This is a binding 3 precedent on us. Somebody could reverse it up at a higher level, but we have 4 to abide by what the Commission has said. In there, in the second full 5 paragraph, Mr. Welkie, is the section that concerns me, and I think is 6 relevant here. It says, quote, "This license amendment proceeding offers of 7 petitioners the opportunity" --

8 MR. LUTZ: We can't see anything. Can't see anything on the 9 slide. Blank.

10 JUDGE KARLIN: I'm sorry. Put it up on the full screen, Mr.

11 Welkie. That might help Mr. Lutz see it. Full screen for him. Can you --

12 MR. LUTZ: No, still blank.

13 JUDGE KARLIN: Total blank? You're not seeing anything there, 14 Mr. Lutz? Okay. Then I'll just read it to you. It comes out of the 15 Millstone decision. Mr. Lutz, are you there? Mr. Lutz? Can you hear us?

16 MR. LUTZ: I can hear you but -- I can hear you but -- oh, okay, 17 there we go. There it is.

18 JUDGE KARLIN: Okay. Sorry for the difficulty.

19 MR. LUTZ: No worries.

20 JUDGE KARLIN: Let me just read -- this is an excerpt from the 21 Millstone decision. Quote, "This license amendment proceeding offers the 22 petitioners the opportunity to come forward and state why the nature of these 23 effluent procedures at issue here is such that they should not be removed 24 from the technical specifications. The petitioners have not done so.

25 Nowhere, for instance, in either their amended petition or their appealed

37

1 brief do the petitioners even refer to 50.36 criteria that govern which 2 technical specs must be retained and which can be relocated to the licensee-3 controlled documents," close quote. I think your petition seems to suffer 4 from the same defect. Do you cite 50.36 in your petition or your reply at 5 all?

6 MR. LUTZ: Actually, I'm not even sure. I'd have to review that 7 to see.

8 JUDGE KARLIN: I think the answer is no, but I'm not going to 9 hold that totally against you because you're pro se and citing a specific reg 10 may not be fatal, provided you've met the requirements of the reg, of the 11 law. So let's go to 50.36. Mr. Welkie, please pull up 50.36.

12 Okay, 10-CFR, Section 50.36 is the reg -- one of the regs, the 13 main reg that deals with technical specifications. We have a subsection A, 14 which we can skip. Go to subsection B, which we can skip. Go to C -- page 15 down, C. Technical --

16 MR. LUTZ: Okay, so --

17 JUDGE KARLIN: I'm reading -- are you able to see the regulation 18 in question?

19 MR. LUTZ: Yeah.

20 JUDGE KARLIN: You have it.

21 RAYMOND LUTZ: Actually, now, can I respond to your question?

22 JUDGE KARLIN: I haven't posed my question yet. So we're looking 23 at --

24 MR. LUTZ: Well, you asked me if I cover this in anything that I 25 presented in my oral argument. I did actually cover this --

38

1 JUDGE KARLIN: Yes, you mentioned it in your oral argument. I 2 ask if you put it into your petition or your reply. And the answer to that 3 is no. But that's not fatal because you may still have met the criteria, 4 your pro se. You don't necessarily know all the regs. That's understood.

5 If you have a valid claim, you have a valid claim whether you cited the reg 6 or not. So let's go to 50.36(c). Mr. Welkie, will you pull that up?

7 Okay, c, "Technical specifications will include items in the 8 following categories." There's a category 1, safety limits. Go to the next 9 category, Mr. Welkie. Page down. Category 2. Keep going, keep going, keep 10 going -- 2: "Limiting conditions for operation." Then you go down there a 11 little bit further, Mr. Welkie. Stop. And now we have the four criteria 12 that I'm going to ask Mr. Frantz and Mr. Roth some questions about. There 13 are four criteria for tech specs that must be in the license. And would you 14 look at those, Mr. Lutz, and tell us why didn't you identify frequency of 15 requirements, surveillance frequency requirements that meet any of those four 16 criteria? Can you talk about that? How do they meet those criteria? Are 17 you there? Okay, we lost video. Do we have audio? All right.

18 [phone ringing]

19 Are we back, Mr. Lutz? Hi, I'm sorry.

20 MR. LUTZ: I can hear you now.

21 JUDGE KARLIN: Sorry.

22 MR. LUTZ: Okay, now you were about to ask me --

23 JUDGE KARLIN: Yeah, so help us with this. Look at those four 24 criteria, if you would, in 50.36(c)(2)(ii) a through d. Does the 25 surveillance frequency issue satisfy any of those criteria?

39

1 MR. LUTZ: Excuse me, but these are events that do not require a 2 licensee event report. A licensee shall retain each record and so forth.

3 Oh, I see. Technical specification limiting condition for operation of a 4 nuclear reactor must be established for each item, meaning one or more of the 5 following criteria.

6 JUDGE KARLIN: Yeah, if it meets one of those criteria, it has to 7 be a tech spec, and that would be favorable to your position.

8 MR. LUTZ: Right, so, criterion 1 -- "Install instrumentation 9 that is used to be teched and indicate on the control room as significant 10 abnormal degradation of reactor coolant pressure boundary." And then, as we 11 were saying, criterion 4, "component which operating experience as shown to 12 be a significant public health and safety" -- and they enumerated in the 13 other document what type of things qualified for that criterion 4. And one 14 of them was the -- what we just said, which was the reactor core cooling 15 system. And the reactor core cooling system is within criterion 4. It is a 16 structure system or component which operating experience or probabilistic 17 risk assessment as shown to be significant, as enumerated in the final 18 statement on technical specs. The reactor -- isolation cooling meets that.

19 So, yes, we do actually meet that. I was actually looking up -- and maybe 20 you can correct me on this -- but up -- is what I mentioned in my first 21 introductory statements under c1, lowercase (i). And maybe you can tell me 22 that I'm out of line by looking up there, but that is where they talk about 23 the two categories that I was referencing as to be Class 1 and Class 2. So I 24 did mention this 50.36 in my introductory statement, and because you did 25 mention it in the order, starting this meeting, and so I did, you know, take

40

1 a look at that and see how it affects this.

2 JUDGE KARLIN: All right. Thank you. Does either of my 3 colleagues have questions for Mr. Lutz at this time on Contention Number 1?

4 JUDGE TRIKOUROS: Mr. Lutz, I just want to get something clear.

5 Your concern is not with any specific surveillance frequency that you've 6 seen, but it is a general concern that any changes to an existing 7 surveillance frequency would be degraded in some manner, and that the public 8 would not have an opportunity to see that? Is that really your concern?

9 MR. LUTZ: Well, in this first contention, yes, and I would like 10 to expand on that a little bit, because in the Regulatory Guide 1.177, called 11 "An Approach for Plant Specific Risk Informed Decision Making, Technical 12 Specifications," it says, throughout this, that the steps that were involved 13 in applying risk-informed decision making, which is what they're trying to 14 deploy here, is that the final step would be that it would be put forward for 15 the license amendment process. Here's one thing I'd like to quote: "PRA 16 evaluations in support of regulatory decisions should be realistic as 17 practicable and appropriate supporting data should be publicly available for 18 review."

19 It goes on to say "this regulatory guide, use of which is 20 voluntary, provides guidance concerning an approach that the NRC has 21 determined to be acceptable for analyzing issues associated with proposed 22 changes to the plant's technical specifications and for assessing impact with 23 such proposed changes under risk associated with plant design and 24 operations." You understand that.

25 But the final element involves documenting the analyses and

41

1 submitting the license amendment request. "NRC will review the submission to 2 NRC's standard review plan." So throughout this document which they 3 originally envisioned of allowing the plants to modify the surveillance 4 frequencies per the surveillance frequency control program, and the plant-5 specific risk-informed decision making for technical specifications, included 6 the concept that these would come forward to a hearing, or at least be 7 announced to the public what was going on, and the public would have an 8 opportunity to request a hearing.

9 And so, in general, I am concerned that these very critical 10 surveillance frequencies that are within the containment building are going 11 to go into a close process where they go through this 14-step surveillance 12 frequency control program, which is very complex, and then NRC staff signs 13 off on it, and there's no review by the public or anyone else. And I think 14 that's a danger to allow this to go within that closed process with no public 15 review.

16 JUDGE KARLIN: Thank you. Judge Baratta.

17 JUDGE BARATTA: Yes, Mr. Lutz, I was looking at that Section 3.4 18 that you mentioned earlier, and going down through there, there's an 19 explanation of the items that are being changed. I specifically -- I'd go 20 down to Page 2, where it says Page 205. And there's a reference to --

21 MR. LUTZ: Which document are you looking at?

22 JUDGE BARATTA: That's the one that you referenced earlier, that 23 section 3.4 --

24 MR. LUTZ: Oh, okay, that's the actual -- yeah, that's the RCS 25 subsystem, the technical specifications. Understand. Go ahead.

42

1 JUDGE BARATTA: Right. What I noticed in there, for example, is 2 that there's a change to monitor the reactor coolant system TC, which is the 3 cold temperature. And that was the requirement to monitor that was being 4 moved to this surveillance program document as opposed to the tech specs. Is 5 that the type of thing you're concerned about?

6 MR. LUTZ: Yes. In other words, I did submit this addendum, 7 which I attempted to pull in and summarize all of the critical specifications 8 that are being proposed in this one attachment. I did not go through the 9 entire license amendment. This one attachment has 50 changes of moving those 10 frequencies into a licensee controlled document. There are 14 attachments 11 and by extension we can maybe assume that there's maybe 750 specifications 12 that are being put into a closed loop and with no public review. Some of 13 these are extremely critical and I did go into more detail in the second 14 contention with regard to some of those, specifically the steam generator 15 issue, which is the reason I started looking at this to begin with. I was 16 worried about the steam generator checking because of this failure that they 17 had, and at the fact that the steam generator went into a -- had a steam line 18 break, which I'm not trying to go into detail here, but the actual steam 19 generator needed to be taken off within an hour, and the amount of leakage 20 increased by 40 percent in an hour. And according to this document, it has 21 to be checked once every 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />, at least from what I can understand. But 22 this is a type of check where you're checking to see that either there's 23 enough water in the steam generator, that there's enough -- that the cooling 24 loop is in operation. We certainly want that to be the case.

25 And we want to see if there's any leakage within the building.

43

1 There was leakage that was emitted to the environment in this last emergency, 2 and they said that they only had to check that once every 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />. I did 3 mention in my second contention that I think that is a ridiculously long 4 period of time for that, based on this accident that just occurred.

5 So I am concerned that there's this general trend that started 6 with the Millstone case, but there the effluent was no big deal. It was just 7 maybe some radioactive fluid coming out of the plant. Who cares? And so 8 we're going to put that within the licensee control document because we don't 9 want to irritate the public with having them have to hear this.

10 And here, though, they're going way overboard. They're putting 11 hundreds and hundreds of critical inspections out of the public review and 12 into a licensee controlled document that only is reviewed now, according to 13 this proposal, by this surveillance frequency control program under the 14 auspices of the NRC, with no public review, no opportunity for a hearing, no 15 checking that anything is going right.

16 Look, people make mistakes. It helps to have the public 17 reviewing this stuff. And it brings in other points of view. Other experts 18 can take a look at it. I'm not the expert that can sit here and say that one 19 frequency is better than another. But there are experts out in the community 20 that do want to take a look at this. And to say that the NRC knows 21 everything and so does Edison, and you can solve everything yourself is just 22 an accident waiting to happen, in my view. It's the wrong thing to do.

23 We've got to keep good transparency here. We've got to embrace the Executive 24 Order 13579 and open this up instead of closing it down. So my position is 25 that, yeah, yeah -- have I said enough?

44

1 JUDGE KARLIN: Well, I think that answers the question and we 2 thank you, Mr. Lutz. I think what we're going to do now is take a short 3 break. We've been going for an hour and 20-some minutes. And we're going to 4 have to take a break and come back. At that point I think we will turn to 5 questions from Mr. Frantz, representing Edison on that matter. We thank you, 6 Mr. Lutz, for answering our questions here.

7 We'll take a break. I realize that out there, you're going to 8 have a lunch situation, Mr. Lutz, and I apologize that we're going over the 9 lunch hour for you. But I think what we want to do, because we have limited 10 time at that facility, at the NLRB offices, we want to keep on trucking, so 11 we'll take about a 10 -- I think we need to be pretty sharp about this. Let 12 us take a 10-minute break. We will be back here. Everyone be back at their 13 chairs ready to go in 10 minutes, at which point, Mr. Frantz will be on the 14 hotspot. Okay. We'll adjourn for 10 minutes. Thank you.

15 (Whereupon, a short recess was taken) 16 JUDGE KARLIN: Please be seated. This is Alex Karlin. The 17 Atomic Safety and Licensing Board proceedings now reconvening. Mr. Lutz, are 18 you with us out there? Mr. Deucher?

19 MR. DEUCHER: This is Joe Deucher, they have not yet returned.

20 JUDGE KARLIN: Where are they, do you know?

21 MR. DEUCHER: They are in the building at the moment. I dont 22 know their exact whereabouts.

23 JUDGE KARLIN: Okay, well, I didnt think we worried them that 24 much by our questioning. We were just getting started. I think we are going 25 to proceed and if they want to show up, they can show up. Mr. Frantz, could

45

1 you please come to the podium for our questioning?

2 MR. FRANTZ: If it may please the board, Id prefer if I could, 3 to speak from the desk here because I have a combination of information both 4 in hard copy and a laptop and Im not sure I can bring all of that 5 conveniently up to the podium. And Ill be needing to refer to some of this 6 information on my laptop. Thank you.

7 JUDGE KARLIN: Okay, I think thats all right. I think that will 8 be all right.

9 MR. FRANTZ: Thank you for your indulgence.

10 JUDGE KARLIN: I want to ask one question about timeliness. Now 11 this petition was filed on October 17, 2012. The deadline set forth in the 12 federal register was October 15, 2012, two days late. Are there any -- we 13 were -- I was looking for the case law. Are there any cases which held that 14 a request for hearing, where the party had standing, and where the party had 15 an admissible contention, got thrown out because it was two days late?

16 MR. FRANTZ: I dont know about two days late. But we do have a 17 case involving Seabrook, CLI 99-6, where the petition was seven days late.

18 And in that case, the board found that the -- or the commission found that 19 the petitioner was untimely.

20 JUDGE KARLIN: Did it meet the other criteria that I referred to?

21 MR. FRANTZ: I dont recall.

22 JUDGE KARLIN: No.

23 MR. FRANTZ: I believe it was...

24 JUDGE KARLIN: I dont think theres any case out there that 25 holds. Look, youve got an admissible contention, you got standing, youre

46

1 two days late, youre out of here. I mean, do you have a cite for that?

2 MR. FRANTZ: Yeah, in the Seabrook case, I think it was rejected 3 solely on timeliness. They didnt even look at the other attributes of 4 standing.

5 JUDGE KARLIN: Was this the initial contention, initial petition 6 for hearing, or a new contention?

7 MR. FRANTZ: This was the initial petition to intervene.

8 JUDGE KARLIN: Okay. Well, then the CLI on that is?

9 MR. FRANTZ: The CLI 99-6, that 44NRC 201, Pages 222 and 223.

10 JUDGE KARLIN: Okay.

11 MR. FRANTZ: Im sorry, its 49 NRC.

12 JUDGE KARLIN: 49NRC, okay. All right. Mr. Welkie, could you 13 bring up the August 16, 2012 federal register notice of this proceeding?

14 Welcome Mr. Lutz. Were proceeding with the questioning of Mr.

15 Frantz.

16 MR. LUTZ: Okay, thank you very much, sorry about the delay.

17 JUDGE KARLIN: So Mr. Welkie was going to bring up the August 16, 18 2012 notice. I would like you to move to Page 496 -- Im sorry, 49465, 19 please, Mr. Welkie. And at the bottom left of that page - would you page 20 down? There is a discussion and I will quote it. Id like you to answer 21 some questions about these relocated specifications, Mr. Frantz.

22 The quote is, quote: Relocated specifications. Some of the 23 proposed changes involve relocating CSTs, and thats Current Technical 24 Specifications, LCOs, thats Limiting Conditions of Operation, to licensee 25 controlled documents. SCE has evaluated the CST using the criteria set forth

47

1 in 10-CFR 50.36 specifications identified by this evaluation that did not 2 meet the retention requirements specified in the regulation or not included 3 in the ITS. These specifications have either been relocated -- have been 4 relocated from the CTS to either the licensee controlled specification or the 5 UFSAR.

6 So my question sort of focused on this. And lets kind of 7 eliminate all of these acronyms. Chairman Macfarlane has adjured us to try 8 to reduce acronyms if we can. And all I really want to talk about is whats 9 a current specification, and if youre changing the current specification --

10 technical specification. So, as I understand it, currently the tech specs, 11 the surveillance frequencies are tech specs that are in the Edisons license.

12 Is that right, Mr. Frantz?

13 MR. FRANTZ: Thats correct.

14 JUDGE KARLIN: And as I understand it, the licensee cannot change 15 those tech specs under 50.59?

16 MR. FRANTZ: Thats correct.

17 JUDGE KARLIN: Okay. Now if you take a tech spec thats in the -

18 - currently in the license and you relocate it to a licensee controlled 19 document, is it still incorporated in the license?

20 MR. FRANTZ: No its not.

21 JUDGE KARLIN: Is it still a tech spec?

22 MR. FRANTZ: No its not.

23 JUDGE KARLIN: So when you talk about a relocating a tech spec, 24 thats kind of confusing because youre not relocating a tech spec, youre 25 eliminating a tech spec. Its no longer a tech spec.

48

1 MR. FRANTZ: Yeah, I think, what the intent here, and this is a 2 staff document, not ours. The intent is that its a relocation provision 3 from a tech specs to a licensee controlled document.

4 JUDGE KARLIN: Right so if its -- Mr. Lutz, Mr. Deucher? Ill 5 hold on a second, well just pause and see if Mr. Deucher or Mr. Welkie can 6 reconnect here. Mr. Lutz, did we lose you there for a little bit?

7 MR. LUTZ: Yeah, he -- can you back up to the start of his 8 testimony please?

9 JUDGE KARLIN: Well, could you hear what we were talking about?

10 Or you had no reception at all?

11 MR. LUTZ: NO.

12 JUDGE KARLIN: Okay, well I think what --

13 MR. LUTZ: -- back up to the part where you said its -- go 14 ahead.

15 JUDGE KARLIN: I think whats happening is when I pull up a 16 document to discuss, it may overload the system and drop the video link and 17 cause things to be a problem. So maybe I can restrict that.

18 We are focusing on the announcement in the Federal Register on 19 August 16, 2012 that announced the proposed changes that are being requested 20 by Southern California Edison. And one of those requested changes, the one 21 thats being contested in Contention 1, is the relocation of specifications 22 on page 49465. And what Mr. Frantz, I believe, said was that if you take a 23 tech spec and relocate it out of the license and put it into a licensee 24 controlled document, it is no longer a tech spec. Is that correct, Mr.

25 Frantz?

49

1 MR. FRANTZ: Thats correct.

2 JUDGE KARLIN: Okay. What is it?

3 MR. FRANTZ: It is a licensee commitment and it can only be 4 changed in accordance with the provisions that govern that particular 5 document. In the case of the surveillance frequencies, which are being 6 relocated to the Surveillance Frequency Control Program, we can only make 7 changes to that --

8 JUDGE KARLIN: Im going to get to that later. But its not a 9 tech spec anymore. Its a written commitment, a licensee commitment.

10 MR. FRANTZ: Thats correct. And its controlled by the program 11 thats in the tech specs.

12 JUDGE KARLIN: Okay.

13 MR. FRANTZ: And so there are still some provisions in the tech 14 specs dealing with surveillance frequencies, just not the numerical values of 15 those frequencies.

16 JUDGE KARLIN: Okay, now youve taken this -- lets say you get 17 your wish. Your client gets its wish. These tech specs are deleted and 18 these provisions are put into licensee controlled documents. Does the public 19 have access to those licensee controlled documents?

20 MR. FRANTZ: No it does not.

21 JUDGE KARLIN: So theres no public access to see this?

22 MR. FRANTZ: The public obviously can see the changes we are 23 making.

24 JUDGE KARLIN: Today?

25 MR. FRANTZ: Today.

50

1 JUDGE KARLIN: But after you make the changes, it goes offline, 2 public cant see it.

3 MR. FRANTZ: Thats correct. The staff, of course, we have to 4 document those changes internally and those have to be available for our NRC 5 audit and --

6 JUDGE KARLIN: Right, right. Okay. Consequences. Let me ask 7 this question. Lets assume that theres a surveillance frequency provision 8 and its in the license and its called a tech spec. You take it out of the 9 license and put it in the licensee controlled document. Its a written 10 commitment by the licensee. But its the same tech spec, exactly the same 11 frequency requirement, whatever it is - once an hour, once a month, its the 12 same. But its been moved. Lets assume for a moment that the licensee 13 exceeds that tech spec, or that surveillance frequency. I wont call it a 14 tech spec anymore. They dont meet it, they miss it, they do something, they 15 dont make it. I presume that the licensee has to take certain actions in 16 reaction to missing a surveillance frequency. Would that be right?

17 MR. FRANTZ: Thats correct.

18 JUDGE KARLIN: Okay, then let me ask this. Is the -- are the 19 licensees duties different if its in a tech spec versus when its in a 20 written commitment?

21 MR. FRANTZ: I dont believe so, no.

22 JUDGE KARLIN: Okay.

23 MR. FRANTZ: Let me clarify that. If --

24 JUDGE KARLIN: They have to do certain things.

25 MR. FRANTZ: If theres a missed or inappropriately performed

51

1 surveillance, we still have to do exactly the same thing as we would do 2 previously.

3 JUDGE KARLIN: How about notice to the NRC?

4 MR. FRANTZ: I dont know that we have to give notice to the NRC.

5 JUDGE KARLIN: You need a tech spec -- you miss a tech spec, do 6 you have to notify the NRC?

7 MR. FRANTZ: Im sorry, because the surveillance requirement is 8 still in the tech specs. We still have to perform the surveillance 9 requirements and so if we miss it, wed still have the same reporting 10 obligation.

11 JUDGE KARLIN: If its in a tech spec, do you have to -- and its 12 missed, do you have to report it to the NRC?

13 MR. FRANTZ: I believe thats correct under 50.73 14 JUDGE KARLIN: If its not in a tech spec, its in a written 15 commitment, do you have to report it to the NRC?

16 MR. FRANTZ: I have to go back and actually look at the language 17 of 50.73. I believe that if its a missed surveillance requirement, we do 18 have to report...

19 JUDGE BARATTA: Suppose its not missed in a sense that it was 20 not performed but its performed, say a month late.

21 MR. FRANTZ: I think the requirements would still be the same.

22 JUDGE KARLIN: All right.

23 MR. FRANTZ: But Ill check.

24 JUDGE KARLIN: Well ask the staff that question too. Maybe you 25 can start looking at the regs and help us on that one. Next, Im trying to

52

1 figure out what are the consequences of taking this surveillance frequency 2 provision and moving it from a tech spec to a written commitment. Unilateral 3 change is the next question. Assume it is relocated, the surveillance 4 frequency is relocated to a licensee controlled document, a written 5 commitment. As I understand, Edison can unilaterally change that provision 6 whenever it wants to, so long as it meets 50.59 criteria.

7 MR. FRANTZ: No, I dont believe thats accurate.

8 JUDGE KARLIN: Okay.

9 MR. FRANTZ: The changes are governed by a licensee provision in 10 the tech specs. The tech specs refer to an Industry Guidance Document NEI04-11 10 and to change the frequency, we have to comply with the provisions in 12 NEI04-10.

13 JUDGE KARLIN: Well NEI04-10, okay, thats an industry, nuclear 14 energy institute, an industry document, right?

15 MR. FRANTZ: That and its -- yeah, thats correct, and its also 16 now referenced in our proposed tech specs.

17 JUDGE KARLIN: Okay, so its incorporated into the tech specs and 18 thats how it becomes mandatory or operative, youre saying.

19 MR. FRANTZ: Thats correct.

20 JUDGE KARLIN: Okay. Do you have a question on that?

21 JUDGE TRIKOUROS: Yeah I do. Were dealing with 50.59 and is it 22 your position that 50.59 still applies to this -- to this Surveillance 23 Frequency Control Program?

24 MR. FRANTZ: No, we dont believe it does. Again, we believe, 25 its our commitment to, and licensee requirement, to comply with NEI04-10.

53

1 10-CFR 50.59 applies to changes relative to the final CP analysis report. We 2 are not locating the surveillance frequencies in the FSAR, or at least 3 nothing -- were not changing anything in the FSAR in that regard. And so in 4 general, 50.59 would not be applicable to these changes.

5 JUDGE TRIKOUROS: Let me interrupt and ask you a question. So 6 are there any surveillance frequencies specified in the FSAR?

7 MR. FRANTZ: There may be some, but I dont think its a 8 comprehensive set such as youll find in the Surveillance Frequency Control 9 Program.

10 JUDGE TRIKOUROS: So, and you would not be changing those by 11 this...

12 MR. FRANTZ: If they were, for example, a surveillance frequency 13 that was both in the FSAR and in the Surveillance Frequency Control Program, 14 we would have to comply with 50.59 for that change to the FSAR and in the 15 NEI04-10 for the change in the Surveillance Frequency Control Program.

16 JUDGE TRIKOUROS: Would the -- the NEI process, I think its 04-17 10, would that process be considered a parallel to 50.59?

18 MR. FRANTZ: Personally, I think its much more stringent than 19 50.59. There are a very complex set of steps and evaluations that have to be 20 undertaken to make a change to the surveillance frequency under NEI04-10.

21 That document itself, by the way, is 40 to 50 pages long. In contrast, 50.59 22 takes up about one page. So its much more detailed, we have to go through 23 both a qualitative evaluation about the impact of the change and including 24 the consideration of past surveillances including whether weve missed any 25 surveillances. Wed also have to consider surveillances that had not been

54

1 successfully completed. Wed also have to consider other reliability issues 2 with the component in question; all thats undertaken as part of the 3 qualitative evaluation process. Theres also a quantitative process which is 4 more risk-informed that looks at the impact on the PRA and the change in core 5 damage frequency. We have to do both of those.

6 JUDGE TRIKOUROS: And one of the outcomes of that process might 7 be that a license amendment is required?

8 MR. FRANTZ: No, the only outcome of that would be either we 9 cant change the surveillance frequency or we have to change it in accordance 10 with those provisions.

11 JUDGE TRIKOUROS: So lets assume that going through that process 12 for a surveillance frequency, you conclude you cant change it. The option 13 to submit that to the Commission, or to the staff, for their evaluation of 14 changing that is not -- would not be considered?

15 MR. FRANTZ: Judge, youre correct. We could do that, thats an 16 option if we did not meet NEI04-10.

17 JUDGE KARLIN: Can you help me? NEI04-10, an industry document.

18 Where is it made mandatory that I can cite and say, Ah, heres the 19 requirement.

20 MR. FRANTZ: Let me pull up --

21 JUDGE KARLIN: Is it in -- its not in the current license, is 22 it? Its in what youre proposing to change if you get the proposal 23 accepted.

24 MR. FRANTZ: Thats correct.

25 JUDGE KARLIN: Okay.

55

1 MR. FRANTZ: And Ill refer the board here to a License Amendment 2 Request Attachment 1, Evaluation 14, Page 83. And this is -- would be tech 3 spec 55218B. And that says, Changes to the frequency as listed in the 4 Surveillance Frequency Control Program shall be made in accordance with 5 NEI04-10 Risk Conform Method for control of surveillance frequencies.

6 JUDGE BARATTA: Okay. But Im a little confused here because I 7 see the staffs reply brief to -- or answer, I should say, to the petitioner, 8 they say that, and Ill quote from -- lets see what page is this? They have 9 a quote -- let me find a page number here -- Page 20. About towards the 10 bottom of the page there, its the last full paragraph. It says, More of a 11 COPS claims -- claim that SCE will have free reigned reduced surveillance 12 frequency requirements ignores the requirements of 10-CFR 50.59 which it was 13 not applicable. They go on to say, the staff goes on to say, That section 14 requires all licensees to evaluate changes to plant procedures in licensee 15 controlled documents and to seek the license amendment under 10-CFR 50.59 for 16 any changes that result in a substantial change from the previous analysis, 17 or result in a more minimal increase in risk. And thats the wording, I 18 paraphrase the wording thats in 50.59, if I recall. So why -- I cant --

19 how could your statement that you made a moment ago relative to 50.59 20 consistent with the staffs position as espoused in their answer?

21 MR. FRANTZ: It is not. We dont agree with the stand from this 22 point. We believe that changes to the surveillance frequencies are 23 controlled by -- or would be controlled by NEI04-10 and not 50.59.

24 JUDGE BARATTA: Doesnt that imply that theres a material 25 dispute here that we should be looking at under a hearing?

56

1 MR. FRANTZ: This is certainly nothing that the petitioner has 2 raised. This is --

3 JUDGE BARATTA: It seems as though they did.

4 MR. FRANTZ: The petitioner has not referenced 50.59 at all.

5 JUDGE BARATTA: Oh but theyve made the same -- statement that 6 youre able to change it at will and the staff says, No youre not.

7 MR. FRANTZ: And we dont say were able to change it at will 8 either. We believe, in fact we had more restrictive requirements under 9 NEI04-10 than we do under 50.59.

10 JUDGE BARATTA: Well let me say that the staff says that it has 11 to be under 50.59.

12 MR. FRANTZ: Which page is that on the staffs --

13 JUDGE BARATTA: Im referring to Page 20.

14 MR. FRANTZ: OKAY.

15 JUDGE TRIKOUROS: Let me point out that the board, in looking at 16 this, has concluded that 50.59 probably does not apply in the sense that 17 there is no requirement to do a 50.59 evaluation. I dont know how you apply 18 50.59 without doing a 50.59 evaluation. We do have the statement that Judge 19 Baratta just mentioned.

20 MR. FRANTZ: I know Judge, I agree with you entirely and we just 21 disagree with the staff on this.

22 JUDGE KARLIN: Well, can we ask the staff to address that here?

23 I will jump in. Does it -- Im somewhat surprised by Mr. Frantzs position.

24 I thought I heard repeatedly that, you know, well, its going to be moved 25 into this licensee controlled document. But no worries, because there is

57

1 this thing 50.59 and it can only change it if they meet those criteria. Now 2 youre saying, Oh, no that doesnt apply to us.

3 MR. ROTH: It is certainly, your honor. First, the Surveillance 4 Frequency Control Program -- David Roth for the staff -- the Surveillance 5 Frequency Control Program as described in their application would put into 6 their tech spec section requirement to use the NEI document. That becomes, 7 then their controlling license for changing the surveillance frequencies.

8 JUDGE KARLIN: Is that in lieu of 50.59 or in addition to?

9 MR. ROTH: No, its in parallel. 50.59 is still going to be 10 controlling them if they attempt to change a document that requires them to 11 seek an amendment such as use something up other than the NEI document to 12 control surveillance frequency changes.

13 JUDGE KARLIN: So let me ask, is the NEI in addition to or in 14 lieu of 50.59? I mean does 50.59 just go poof, because somebody cites 15 NEI04-10 or whatever it is?

16 MR. ROTH: No, certainly the regulation continues to exist and to 17 the extent that any particular change that theyre doing in accordance with 18 NEI04-10, which shouldnt cause them to violate 50.59 if theyre following it 19 correctly, would continue to apply.

20 JUDGE BARATTA: Sir, do you still stick by your statement that 21 this section requires all licensees to evaluate changes to plant procedures 22 and licensee control documents and to seek a license amendment under 50.59?

23 MR. ROTH: Well, actually I want to refer to the actual LAR, to 24 look at the source of confusion here. If we pull up Attachment 1, Volume 15 25 of the LAR.

58

1 JUDGE KARLIN: LAR Attachment 1, Volume 15, yes.

2 MR. ROTH: And --

3 JUDGE KARLIN: I dont have it in front of me but were going to 4 go look at it afterwards.

5 MR. ROTH: Certainly. Within that, this is their proposed Dosic 6 [spelled phonetically] hazards evaluation. Within that -- I'll pull it here 7 in a second -- not including --

8 JUDGE KARLIN: What page are you on? Volume 15 must be pretty 9 long. You know, this is really, you cant just cite a big document, you have 10 to give us the page now, you know.

11 MR. ROTH: It has two umbers, the numbers as in the PDF version 12 of the LAR is Attachment 1, Volume 15, Revision 0, Page 9 of 26.

13 JUDGE KARLIN: 9 OF 26.

14 MR. ROTH: But it is also labeled above that, as Page 8 of 24.

15 JUDGE KARLIN: Thats very helpful, Page 8 of 24.

16 MR. ROTH: Its the original PDF version and so it may be the 17 version --

18 JUDGE KARLIN: And so what does it say?

19 MR. ROTH: So this is answering the question of, Does the 20 proposed change involve a significant reduction in the margin of safety?

21 And its a discussion of reduction of details and the removal of the 22 surveillance frequency is not a removal of a item from the tech specs. Its 23 a removal of a level of detail within the technical specifications. The 24 surveillance requirements remained within the technical specifications. Ill 25 get back to that in a moment here.

59

1 But not including -- this is what the licensee is written -- Not 2 including these details in the technical specifications is consistent with 3 NUREG 1432 issued by the NRC, which allows revising the technical 4 specifications to relocate these requirements in surveillances to a licensee 5 controlled document controlled by 10-CFR 50.59, 10-CFR 50.71(e) or other 6 technical specification controlled or regulation controlled documents.

7 JUDGE KARLIN: So that provision says that it would be controlled 8 by 50.59?

9 MR. ROTH: This is in the generic consideration of no significant 10 hazards the licensee has put.

11 JUDGE KARLIN: Ah, well, thats a different thing, isnt it? No 12 significant hazards consideration determination --

13 MR. ROTH: Now again, in terms of whats actually controlling the 14 change in surveillance frequency. If they wish to change the surveillance 15 frequency, for a surveillance where the details have been shifted into the 16 licensee controlled document, its going to tell them in accordance with the 17 Surveillance Frequency Control Program. Then, they have to look at a program 18 described in Section 5 of the tech specs, its going to tell them to go to 19 the NEI documents. They then must follow --

20 JUDGE KARLIN: Wait a second. When you say Section 5 of the tech 21 specs, are you talking about a real tech spec in the license?

22 MR. ROTH: Yeah, their proposal as the administrative controls of 23 the actual license. Then they must comply, because now its within the 24 license, within the requirements of the NEI document as they make their 25 evaluations of whether or not they can alter the surveillance frequency that

60

1 theyve chosen. Now, if I may get back to --

2 JUDGE KARLIN: So that is not a 50.59 process?

3 MR. ROTH: No, its a very pinpoint process that theyre going to 4 be using this program. They cant deviate from that program because if they 5 say, I want to do something else, I dont want to use the NEI document, Rev 6 0, or Rev 1 I believe is the one theyre using, if they want to use REV2, 7 they cant just use REV2 when it comes out. They actually have to get an 8 amendment if they wanted to shift Rev 1 to REV2 because, and then would have 9 to verify it real fast, but to the best of my memory is, the revision is also 10 specified within the tech specs. Thus is they want to change revisions, if 11 NEI comes out with a new guidance document, they use 50.59.

12 JUDGE KARLIN: So thats the answer. There is no 50.59 13 evaluation done. Thats the answer, right? Its done in accordance with the 14 Surveillance Frequency Control Program.

15 JUDGE KARLIN: I want him to answer that.

16 MR. ROTH: Well, it depends, you know, I have to put in the 17 thought as we drafted our answer there because clearly its causing 18 confusion. There is no question that the surveillance frequencies are 19 changed in accordance with the NEI document, or properly reviewed in 20 accordance because it may come back if somebody wants to reduce the 21 frequency, they might run it through the process, and they might determine we 22 cant do this.

23 So if the process theyre going to use is the NEI process, not 24 the 50.59 process, the 50.59 will come in if they want to use an alternate 25 process. Because then theyre going to have to get a license amendment to

61

1 use a different process other than the one specified by the proposed license 2 which is the NEI document.

3 JUDGE KARLIN: I understand. So basically if they wanted to use 4 50.59, they would require a license amendment which seems like a kind of a 5 strange combination since 50.59 is meant to avoid a license amendment. But I 6 understand what youre saying.

7 MR. FRANTZ: And if I can just add, if thats how the staff is 8 interpreting this language, if thats how their interpreting their pleading, 9 then we agree.

10 JUDGE KARLIN: All right. Can we move, Id like to move on.

11 Were still focusing, Mr. Frantz, on the consequences, I guess, of taking a 12 surveillance frequency out of the tech specs and moving it to a licensee 13 controlled written commitment.

14 Enforceability. Lets talk about, is it enforceable? Is it as 15 enforceable? I will quote you from the 1993 final policy statement on tech 16 spec improvement that Mr. Lutz has referred to July 22, 1993 at 58 Fed Reg 17 39134. The Commission concludes that some requirements previously contained 18 in the tech specs should be relocated to other documents that do not have the 19 direct enforceability of tech specs. If you move it to this licensee 20 controlled document, is it -- is a different, is it enforceable?

21 MR. FRANTZ: Yes it is. Under Appendix B, Part 50 --

22 JUDGE KARLIN: Appendix B?

23 MR. FRANTZ: B as in Boy.

24 JUDGE KARLIN: B as in Boy, Part 50, Quality Assurance Regs --

25 MR. FRANTZ: Under Criterion 5, that criterion requires that

62

1 there be procedures to govern safety related activities and that the 2 licensing implement those procedures. If we did not perform our 3 surveillances in accordance with the Surveillance Frequency Control Program, 4 we believe that would be a violation of Criterion 5.

5 JUDGE KARLIN: But youre saying thats a Q.A., its not directly 6 enforceable, its -- they say here, do not have the direct enforceability of 7 tech specs. Tech specs are directly enforceable and this thing, if you move 8 it out of the tech specs, its only indirectly enforceable as a Q.A.?

9 MR. FRANTZ: Im sorry, Judge Karlin, would you repeat that 10 question?

11 JUDGE KARLIN: The quote I gave, was it -- if you relocate it to 12 other documents, you do not have, The direct enforceability of technical 13 specifications.

14 MR. FRANTZ: If we were to change a frequency, and did not use 15 the NEI04-10 process, that would be --

16 JUDGE KARLIN: Im not talking about a change, Im just talking 17 about moving it, the same document, the same frequency thats in there today, 18 you just take it out and you put it in your own little pocket somewhere and 19 thats your licensee controlled document.

20 MR. FRANTZ: That would be a violation of Criterion 5, Appendix 21 B.

22 JUDGE KARLIN: So its not directly enforceable, its indirectly 23 enforceable as a Q.A., it's your position?

24 MR. FRANTZ: Well, I dont know whether it matters, whether you 25 call it direct or indirect, its enforceable.

63

1 JUDGE KARLIN: Okay, the compliance policy at Page 39138, has an 2 enforcement policy in it. And it says, Compliance with technical 3 specification is required by the Commission and adherence to commitments 4 contained in licensee controlled documents is expected by the Commission.

5 Is the same answer? I mean, it seems like a difference between tech specs 6 compliance is required; compliance with commitments is just expected.

7 MR. FRANTZ: In this particular case the surveillance frequencies 8 would be part of our set of procedures and if we dont follow our procedures, 9 thats a Criterion 5 violation.

10 JUDGE TRIKOUROS: Okay. The a -- so were in a situation where 11 you do, assuming this LAR is approved, you will have a -- I dont know what 12 you call it, a TRM or LCS, whatever you call it, you will have surveillance 13 frequencies in that document that are -- that can be only changed by applying 14 the Surveillance Frequency Control Program which is in the technical 15 specifications as a requirement.

16 MR. FRANTZ: Thats correct.

17 JUDGE TRIKOUROS: Specifically, okay. There are other 18 surveillance frequencies, other surveillances that are done, that are many, 19 many, many instruments that are not part of the technical specifications, 20 many of which are very important to the safety of the plant, but are not in 21 the technical specifications. The changes to those are done routinely on a 22 50.59 basis, is that correct?

23 MR. FRANTZ: Thats correct.

24 JUDGE TRIKOUROS: OKAY.

25 MR. FRANTZ: And I might say, in most cases, the surveillance

64

1 provision probably is not discussed in the FSAR and therefore changes can be 2 made without violating any of the criteria in 50.59.

3 JUDGE TRIKOUROS: Right, so the vast majority of surveillances, 4 some very important, are not -- are totally done outside of any of this 5 process.

6 MR. FRANTZ: Thats correct.

7 JUDGE TRIKOUROS: I just want to make sure that people understood 8 that. What about methods of performing surveillances? Is the surveillance 9 performance method documented in any formal way or is that just part of the 10 surveillance procedures of the plant?

11 MR. FRANTZ: The surveillance methods sometimes is actually 12 discussed in the tech specs and that will remain in the tech specs. The tech 13 spec they see oftentimes provide a little bit more detail on the nature of 14 the surveillance requirements. And then, of course, we do have procedures 15 which go into a fair amount of detail on how surveillance requirements are 16 performed.

17 JUDGE TRIKOUROS: All right. But not all surveillances --

18 surveillance methods are documented in the tech specs. Some are.

19 MR. FRANTZ: Thats correct.

20 JUDGE BARATTA: Just to make sense out of these various acronyms, 21 could you briefly relate the 1977 tech specs, okay, to the current tech 22 specs, to the standard tech specs, to the improved standard tech specs.

23 MR. FRANTZ: Yes, and whats happened over time is the standard 24 tech specs have been an improved, and then they have been improved some more.

25 And so the -- even the improved standard tech specs go through an evolution.

65

1 We were one of the first plants to actually to have the standard, the 2 improved standard tech specs for combustion engineering plant.

3 JUDGE BARATTA: I think you were the lead plant.

4 MR. FRANTZ: That was back in the 1990s. Since then there have 5 been a number of changes to the improved standard tech specs. And what were 6 trying to do now is basically upgrade our current tech specs which are the 7 standard tech specs from 1990s to basically the 2011 standards.

8 JUDGE KARLIN: Now when you -- we keep talking about -- I mean, I 9 dont know the standard tech specs, quote standard tech specs from Adam.

10 Okay? There is -- there are some tech specs in the license. There is this 11 other thing you talk about which is the standard tech specs. And the 12 improved standard tech specs. Now the standard tech specs, I guess those are 13 the tech specs that come out of this NUREG 1432?

14 MR. FRANTZ: Yes, sir.

15 JUDGE KARLIN: And NUREG is a guidance document, right?

16 MR. FRANTZ: Thats correct.

17 JUDGE KARLIN: And its guidance from the staff, right?

18 MR. FRANTZ: Correct.

19 JUDGE KARLIN: Its not legally binding on us, is it?

20 MR. FRANTZ: Thats correct.

21 JUDGE KARLIN: So standard tech specs sounds like its important 22 but as a legal matter, its not -- standard doesnt mean anything, as far as 23 Im concerned, as far as legally binding on us.

24 MR. FRANTZ: Youre correct its not legally binding on you. But 25 we are adopting just the standard industry practices --

66

1 JUDGE KARLIN: Okay, okay.

2 MR. FRANTZ: -- which have been approved for other plants and are 3 endorsed by the NRC standard.

4 JUDGE KARLIN: Is that kind of like everyone else on the block is 5 doing it on the block, mom, so its okay for us?

6 MR. FRANTZ: Well, I think its fair to say unless you have 7 something from the petitioners that indicates that its not safe or not 8 legally adequate, I think youre --

9 JUDGE KARLIN: Well, the contention to be admissible has to meet 10 certain criteria, but okay, there are these things standard tech specs that 11 come out of NUREG 1432. Okay.

12 JUDGE TRIKOUROS: I just wanted to discuss the process a little 13 bit more. Now you do a surveillance -- in the future you will do a 14 surveillance from the TRM, lets say. If that surveillance results in a 15 finding that the tech spec value was missed, is anything different in this 16 new process versus the older process?

17 MR. FRANTZ: I dont believe it is, no.

18 JUDGE TRIKOUROS: So you would have to file a tech spec violation 19 --

20 MR. FRANTZ: I believe so. Again, I need to check that to verify 21 thats the case by looking at the language of 50.73. I believe thats the 22 case. Yeah, sorry.

23 JUDGE TRIKOUROS: So there would be a license event report saying 24 that you missed your tech spec. And whatever ramifications come from that, 25 you would receive the same ramifications regardless of whether you did the

67

1 surveillance, the new way or the old way at whatever the frequency.

2 MR. FRANTZ: That's correct.

3 JUDGE KARLIN: I have a question, Mr. Frantz. Based upon the 4 August 16, 2012, notice -- I'm not going to ask anybody to bring it up, 5 because it may break our video link with Mr. Lutz, but on page 49467 there is 6 an extender column, a discussion that's headed "Relocated Specifications,"

7 and there's a question or a dialogue there about whether the proposed change 8 relocating the specifications involves a significant increase in probability 9 or consequences. In here it goes on to say the response is, "No, it won't 10 increase the probability or consequences of an accident." And the answer is 11 no. Quote, "The proposed changes relocates" -- I'm sorry. "The proposed 12 change relocates requirements and surveillances for structures, systems, 13 components, or variables that do not meet the criteria of 10-CFR-14 50.36(c2)(ii) for inclusion in the technical specifications." Okay. So it 15 seems to me that the relocation discussion here is focusing on a specific 16 section of 5036. That is, 50.36(c2)(ii). And I look at that. I'm looking 17 at the reg. Now, I have that reg in front of me, and I see -- and we talked 18 about this with Mr. Lutz -- that 36 -- 50.36(c2)(ii) has sub-surrogate for 19 criteria that it lays out. It says, quote, "A technical specification 20 limiting condition for operation of a nuclear reactor must be established for 21 each item meeting one or more of the following criteria." And there are 22 those four criteria. Right?

23 MR. FRANTZ: Yes.

24 JUDGE KARLIN: Well, what about number three at the bottom? I 25 mean, I'm just a lawyer here, and here's something odd. This is about

68

1 surveillance frequency, and all of the sudden I find that Tech Specs have to 2 be established for surveillance. And it says, "50.36(c3), surveillance 3 requirements." Why doesn't that require -- mandate that surveillance 4 provisions be Tech Specs?

5 MR. FRANTZ: They do, and, in fact, we meet that.

6 JUDGE KARLIN: Okay.

7 MR. FRANTZ: I'd like to, in fact, refer to that very page 8 referenced by Mr. Lutz, which is Attachment 1, Volume 7, page 88 of our 9 application, and there you're going to see for the reactor coolant system we 10 still will have a license -- a limited condition for operation, an LCO, on 11 operability of our reactor coolant system. We will still have an action 12 statement.

13 JUDGE KARLIN: Wait a second. Wait a second. Let me stop you 14 there. Let me stop you there. I mean, I'm looking at the tech spec regs.

15 The tech spec reg has a subsection C, and C says, "Technical specifications 16 will be -- will include items in the following categories. Category one:

17 safety limits. Category two: limiting conditions for operations. Category 18 three: surveillance requirements." We're not talking about limiting 19 conditions for operations. We're talking about category three now. Why 20 isn't it caught by category three?

21 MR. FRANTZ: It is. On this very page that he referenced we 22 still will have the surveillance requirement right there in the tech spec.

23 JUDGE KARLIN: But you mentioned limiting conditions for 24 operation. That's what triggered me. Well, that's the wrong subparagraph.

25 That's paragraph two. I'm talking about paragraph three.

69

1 MR. FRANTZ: I understand that. I meant to respond to something 2 Mr. Lutz had raised.

3 JUDGE KARLIN: Don't worry about him. Respond to what I raised.

4 MR. FRANTZ: The surveillance requirements are not being removed.

5 The only thing that's being removed are the surveillance frequencies.

6 JUDGE KARLIN: Oh, so the surveillance requirements is, "Hey, you 7 should do some surveillance when you feel like it." And that's all?

8 MR. FRANTZ: No.

9 JUDGE KARLIN: The frequency and the how you do it and all those 10 things, oh, that's not covered by subparagraph three?

11 MR. FRANTZ: It's not how we feel about it. It's we must comply 12 with NEI 04-10. We cannot change our surveillance frequency --

13 JUDGE KARLIN: Well, I'm not reading a reg. I'm not reading a 14 reg. You must comply with the regs first.

15 MR. FRANTZ: Yes.

16 JUDGE KARLIN: And you don't have to comply with NEI whatever it 17 is at this point, do you? Is it in the permit now?

18 MR. FRANTZ: If you'll look at 50.36 under paragraph three that 19 you mentioned on surveillance frequency --

20 JUDGE KARLIN: Right. Right.

21 MR. FRANTZ: -- there's nothing in there on surveillance 22 frequencies. Frequencies are not mentioned at all.

23 JUDGE KARLIN: Right. I agree with that. I agree with that. So 24 your point is well, surveillance -- subparagraph three of 50.36(c3) is just 25 surveillance requirements. It doesn't talk about frequency.

70

1 MR. FRANTZ: That's correct.

2 JUDGE KARLIN: And frequency doesn't -- isn't covered by that 3 requirement.

4 MR. FRANTZ: That's correct.

5 JUDGE KARLIN: Now -- okay. I mean, I think that's a logical 6 possibility. Is there any -- can you give me some citational help for that 7 in terms of legal provisions or something?

8 MR. FRANTZ: Well, only to the fact that other plants have 9 already done this. Comanche Peak, for example, we cite that in --

10 JUDGE KARLIN: I mean, has it been decided? I mean, is there 11 some legally authoritative proposition that says surveillance requirements in 12 three, that that doesn't include frequency? I mean, I know staff has said 13 that. Let's posit that staff says that.

14 MR. FRANTZ: Yeah.

15 JUDGE KARLIN: How about us? How about some case law?

16 MR. FRANTZ: I don't know that there isn't any case law on that, 17 but again, the staff at the NRC as an agency has done this for other plants, 18 and, of course, the staff has endorsed the tech spec improvement program that 19 the industry has establish. All we're doing is using the standard industry 20 process endorsed by the NRC standard.

21 JUDGE TRIKOUROS: So the concern that Mr. Lutz has, since he 22 didn't raise any issues regarding the NEI 04-10 process, the concern is 23 simply that those surveillance frequency determinations are outside the 24 purview of the public, because they're no longer license amendments.

25 MR. FRANTZ: The numerical value of the frequency is outside

71

1 their purview. The control process is not. Obviously, because we're 2 committed and required by the Tech Specs to comply with NEI 04-10, that 3 document is publically available.

4 JUDGE TRIKOUROS: I understand. So if there are changes to that 5 document, that would entail a license amendment change.

6 MR. FRANTZ: That's -- if we went to move to let's say a later 7 version of that or to some other program entirely, you are correct, we would 8 need a license amendment.

9 JUDGE TRIKOUROS: All right. And then a petitioner would have 10 the ability at that time to question the adequacy of that document.

11 MR. FRANTZ: That's correct.

12 JUDGE TRIKOUROS: And what is it that -- and we mentioned earlier 13 that there are literally hundreds, much more, surveillance frequency 14 determinations that are made that have never been in the purview of the 15 public, and I really don't have a feel for what the percentage is now that 16 we've added to that, but why do -- why would you say that it's acceptable to 17 do that in this particular case?

18 MR. FRANTZ: Just given the very detailed provisions in NEI 04-19 10, and I'd like to refer the board here to a checklist that's actually 20 attached toward the rear of that guidance document. A copy is here for the 21 board and for the staff if you'd like to see these. But it goes through a 22 number of different criteria, just this part of the qualitative evaluation --

23 forget the PRA aspects -- to change a surveillance frequency, you'll need to 24 look at the surveillance test history of the components in question. We'll 25 need to look at the reliability history of the components in question. Well

72

1 need to look at whether there's been a history of an availability of the 2 components in question. And I can -- that's just the qualitative evaluation.

3 We also have to look at various other aspects, such as the vendor's frequency 4 specified period, and there are, I think, a list here of 11-some categories.

5 And that's just, again, the qualitative aspects. In addition, we have to 6 look at the impact on the core damage frequency.

7 JUDGE TRIKOUROS: All right, but the -- but at a higher level, 8 this particular process is not in violation of any regulation. There hasn't 9 been any rulemaking associated with this process. So it's a commission 10 policy change within their purview. Is that really what we're talking about 11 here?

12 MR. FRANTZ: I believe that's a fair statement, yes.

13 JUDGE KARLIN: When you -- on the NEI -- you're talking about 14 this NEI 04-10 document in the process, and I'm looking at the July 6, 2009, 15 Federal Register where that document is discussed, and it seems at some 16 length, and blessed by the staff at some length. But under that NEI 04-10 17 REV1 process, you say we would have to look at this and we would have to look 18 at that, and we would -- when you say we you mean Edison.

19 MR. FRANTZ: That's correct. And, of course, we're subject to 20 review.

21 JUDGE KARLIN: Now, that's my question, is, "To what extent is 22 the staff involved in that, looking at all those criteria?" Or is it kind of 23 like what Edison did with the change in the steam generator? They kind of 24 did it in their own corner, and that was it, and nobody looked at it.

25 MR. FRANTZ: Well, Judge Karlin, I would not agree with your

73

1 characterization of what was done.

2 JUDGE KARLIN: Well, it seemed like they did a 50.59 and on their 3 own, unilaterally.

4 MR. FRANTZ: Yeah.

5 JUDGE KARLIN: And is this is a unilateral thing that you can do 6 under NEI 04-10?

7 MR. FRANTZ: I just want to state for the record, because it's 8 important because of many other issues.

9 JUDGE KARLIN: Sure, okay.

10 MR. FRANTZ: Your characterization of what was done for the steam generators 11 was not correct.

12 JUDGE KARLIN: Okay.

13 MR. FRANTZ: Importantly, there is just not an issue in this 14 case.

15 JUDGE KARLIN: That's not an issue. But is it a unilateral thing 16 that SCI -- Edison looks at and says, "Well, we did all those steps that NEI 17 04-10 said and it looks good to us; good to go"?

18 MR. FRANTZ: The staff will have to speak to its frequency that 19 it intends to perform audits, but we are required to have documentation of 20 all of this.

21 JUDGE KARLIN: And if you've done that documentation you don't 22 have to ask, "Mother, may I?" from the staff or anything. You just do it.

23 MR. FRANTZ: That's correct.

24 JUDGE KARLIN: Okay.

25 JUDGE BARATTA: So let me ask you a quick question, and then I

74

1 have a little longer one. You just said the staff performs audits. Now, how 2 does that audit requirement come about on the surveillance frequency program?

3 MR. FRANTZ: NEI 04-10 says that we must have documentation to be 4 available for NRC audit. The NRC audit program is subject to a separate NRC 5 program inspection procedures, and they can speak to their own program.

6 JUDGE KARLIN: Can I just jump in right there? I mean, okay, but 7 let me ask -- let me see if I can compare this to the 50.59. 50.59, as I 8 understand it, allows the licensees to make certain changes without a license 9 amendment if they meet the criteria prescribed therein. As I understand it, 10 the licensee can make those changes unilaterally, do the analysis, make the 11 changes, and they have to document what they've done. And then it says in 12 50.59 -- let's see if I can figure this out -- (c2), that the licensee has to 13 submit a report about the 50.59 changes that it's made at intervals not to 14 exceed 24 months. Does that ring a bell?

15 MR. FRANTZ: Yes.

16 JUDGE KARLIN: So there is at least an affirmative reporting 17 requirement at least every two years on any 50.59 changes that a licensee has 18 made in that interval, right?

19 MR. FRANTZ: That's correct.

20 JUDGE KARLIN: Is there an affirmative reporting requirement on 21 the changes that the licensee may have made under NEI 04-10?

22 MR. FRANTZ: No.

23 JUDGE KARLIN: Affirmative reporting requirement.

24 MR. FRANTZ: I do not believe so.

25 JUDGE KARLIN: So, unless the NRC wakes up and goes and does an

75

1 audit, they're never going to know about it.

2 JUDGE BARATTA: Or there would be --

3 JUDGE KARLIN: No. I want an answer to that. I want an answer 4 to that. Is that correct?

5 MR. FRANTZ: They may or may not. I will mention that the court 6 --

7 JUDGE KARLIN: There's no automatic reporting requirement that 8 you have to do --

9 MR. FRANTZ: That's correct.

10 JUDGE KARLIN: -- at any interval.

11 MR. FRANTZ: But the NRC does have a resident inspector program.

12 I assume that the resident inspector's will be aware of these types of 13 changes.

14 JUDGE BARATTA: So that results in a relaxation of oversight 15 then. Yes or no?

16 MR. FRANTZ: The entire location is intended to give a licensee 17 more flexibility. That's the whole purpose.

18 JUDGE BARATTA: So it's a relaxation of oversight.

19 MR. FRANTZ: In the fact that we are no longer --

20 JUDGE BARATTA: Yes or no.

21 MR. FRANTZ: Yeah. We are no longer required to get NRC 22 approval. That's a change. Or are --

23 JUDGE BARATTA: Not only that, but even under 50.59 you don't 24 even have the reporting requirements.

25 MR. FRANTZ: And, again, our -- I think 50.59 really -- it was

76

1 not applicable before and it's not applicable now, except for the fact if we 2 make a change to the Tech Specs we need to get a license amendment.

3 JUDGE BARATTA: Let me go on to a different topic. I have the 4 1977 FSAR, and I happened to just pull out the section that deals with 5 reactor coolant pump pressure boundary, and in it, it references -- it says 6 in-service inspection. Inspection and tests, I believe, are what we're 7 talking about. Is that correct?

8 MR. FRANTZ: In-service inspection, in-service testing is 9 sometimes very different from surveillance frequencies or surveillance 10 requirements.

11 JUDGE BARATTA: Okay.

12 MR. FRANTZ: For example, many times, depending upon the nature 13 of the component, it only has to be subject to ISI, in-service inspection, 14 once every 10 years.

15 JUDGE BARATTA: Right, and that happens to be the case here. But 16 are you moving those requirements into these documents?

17 MR. FRANTZ: No, we're not.

18 JUDGE BARATTA: So those are going right in the Tech Specs.

19 MR. FRANTZ: No. They're not in the Tech Specs right now.

20 They're subject to the ASME code and our in-service inspection program, our 21 in-service testing program, and this tech spec amendment change is not --

22 JUDGE BARATTA: It will not impact those? All right. That's 23 what I wanted to find out. Thank you.

24 JUDGE KARLIN: Okay. I think I have one last question for you, 25 Mr. Frantz, at this point. I think I heard somewhere earlier in that --

77

1 surveillance frequencies is the proposal that has been -- the license 2 amendment request submitted by Edison entail moving all of the surveillance 3 frequencies into licensee-controlled documents or only some of them?

4 MR. FRANTZ: I don't recall, but, Judge Karlin, I believe there 5 might be a couple that remain. In general, I think it's fair to say that 6 they're being removed.

7 JUDGE KARLIN: And so how many surveillance frequency provisions 8 are there in -- that are being moved? I mean, Mr. Lutz has shown us in his 9 addendum, you know, the certain number, and, you know -- how many are we 10 talking about?

11 12 MR. FRANTZ: I don't know. It's --

13 JUDGE KARLIN: Hundreds?

14 MR. FRANTZ: Most likely.

15 JUDGE KARLIN: Over a thousand?

16 MR. FRANTZ: I don't know.

17 JUDGE KARLIN: Okay. Any more questions for Mr. Frantz?

18 MALE SPEAKER: No.

19 JUDGE KARLIN: Okay. Thank you, Mr. Frantz. Mr. Roth, are you 20 going to answer the questions with regard to this Contention 1?

21 MR. ROTH: Certainly. And first, your honor, it's David Roth for 22 the staff. Some time ago you inquired about reporting requirements for tech 23 spec violations.

24 JUDGE KARLIN: Yeah, we're going to -- let's -- well go ahead.

25 What have you got on it?

78

1 MR. ROTH: Sure, because I'm trying to get it while it's still 2 fresh in my brain. In 50.73(a2) --

3 JUDGE KARLIN: Okay.

4 MR. ROTH: -- I capital A, the licensee show reports the 5 completion of any shutdown of the plant's Tech Specs. In B, it's the 6 operation or condition which was prohibited by the plant's Tech Specs, except 7 when the event consisted solely -- and this jumps down to another paragraph, 8 there's many subparagraphs, this is now (b2) -- "except when the event 9 consisted solely of a case of a late surveillance test where the oversight 10 was corrected, the test was performed, and the equipment was found to be 11 capable of performing its specified safety functions. Or where the tech spec 12 was revised prior to discovery of the event such that the operation or 13 condition was no longer prohibited at the time of discovery of the event."

14 JUDGE KARLIN: Okay. So what's the import of that?

15 MR. ROTH: You had inquired about if they missed a surveillance 16 test --

17 JUDGE KARLIN: Yes.

18 MR. ROTH: -- and whether that was reportable or not.

19 JUDGE KARLIN: Yes.

20 MR. ROTH: And so my quick read of this -- of course it would be 21 fact dependent upon the test -- of if whatever caused them to miss it, the 22 oversight was corrected and the equipment was found to be operable, then that 23 would not be reportable. Whereas if the equipment was tested in the 24 surveillance test and it fails, a quick read of this suggests that would be 25 enforceable.

79

1 JUDGE KARLIN: No. I guess what I'm -- let me just ask. Not --

2 there's a surveillance frequency specified in the Tech Specs currently, okay?

3 Let's just assume once per day, whatever. And you take that surveillance 4 frequency -- frequency, and you move it to -- out of the Tech Specs into a 5 licensee-controlled document. Those are -- situation A, situation one is in 6 a tech spec, one is in a licensee-controlled document, same surveillance 7 frequency, and you miss. The licensee doesn't do it once per day. They 8 forget or something happens, and they don't do it once per day. If it's in 9 the tech spec -- is there a difference in the reportability if it's in a tech 10 spec versus in a licensee-controlled document?

11 MR. ROTH: Absolutely not, your honor, because the surveillance 12 frequency continues to be specified through the requirements of the 13 surveillance frequency control program. So the new license, should they get 14 it, we tell them do the surveillance in accordance with the control program.

15 JUDGE KARLIN: Yes.

16 MR. ROTH: The control program specifies the document is supposed 17 to follow. So -- or pardon me, that the surveillance frequency they're 18 supposed to be using. So, from the enforcement perspective, it would appear 19 to have no difference.

20 JUDGE KARLIN: I'm not thinking enforcement. I'm thinking of 21 just reportability.

22 MR. ROTH: And the same thing. It would have no difference.

23 It's still a required surveillance.

24 JUDGE KARLIN: Okay. Could you give me the cite on that reg so 25 that when we go and look?

80

1 MR. ROTH: 50.73(a2)(iB).

2 JUDGE KARLIN: All right. Thank you.

3 JUDGE TRIKOUROS: But I'm not sure I understood what you said, 4 because if I heard what I thought I heard, it doesn't sound very logical to 5 me. The -- if I miss a TRM surveillance and then two days later I do it, I 6 realize I missed it and I do it. When I do it, I find that I met the Tech 7 Specs. That's not reportable, but if I do it and I find I didn't meet the 8 Tech Specs, that's reportable. Well, it would always be reportable if I did 9 a surveillance and it didn't meet the Tech Specs. I mean, I don't understand 10 what the -- why there's any significance here regarding the TRM or not.

11 MR. ROTH: Your honor, I fully agree. It makes no difference 12 whether the frequency is specified in the TRM as the proposal would be, or 13 whether it was specified in the current license relative to reporting 14 requirements of 50.73. The missed surveillance would be unchanged.

15 JUDGE TRIKOUROS: Right. Now, in the enforcement space there'd 16 be an LAR, and in the LAR you would probably be saying -- or the licensee 17 would probably be saying, "We missed the surveillance frequency," and there 18 might be an enforcement issue associated with that, but I guess that would be 19 at the discretion of the staff.

20 JUDGE KARLIN: Well, go ahead. Do you have an answer for that?

21 Or is there an answer?

22 MR. ROTH: No. I believe your honor characterized it correctly.

23 JUDGE KARLIN: Okay. I'm looking at the reg. I found the reg 24 you cited, 50.73, entitled "Licensee Event Report System," right? 50.73(a) 25 says A is reportable events, right? And 50.73(a2) it says, "The licensee

81

1 shall report." Am I with you so far? Am I following? So (a2)(iB) -- okay.

2 So, "Licensee shall report any operation or condition which was prohibited by 3 the plant's Tech Specs." So that seems to -- is that -- am I following you 4 there?

5 MR. ROTH: Yes, that's --

6 JUDGE KARLIN: Okay. So if it's in a tech spec and you don't 7 meet it, you got to report it. But if it's not in a tech spec, this doesn't 8 say you have to report it, does it?

9 MR. ROTH: No.

10 JUDGE KARLIN: Okay, but I thought you said it was the same if 11 it's a tech spec or a licensee-controlled document. Both -- this reg says 12 you have to report it if it's a licensee-controlled document. That reg 13 doesn't say that. Does it?

14 MR. ROTH: It -- you have to consider, your honor, that the 15 surveillance frequency is specified within each requirement, each section.

16 Well choose, like, three, four wooden, for instance.

17 JUDGE KARLIN: We just took it out of the -- we just took it out 18 of the Tech Specs. This says if it violates a tech spec you got to report 19 it. Well, it's not a tech spec. So the implication is you don't have to 20 report it.

21 MR. ROTH: Your honor, the surveillance requirement remains. Now 22 the surveillance requirement states do the surveillance in accordance with 23 the surveillance control program. So that's the frequency that's specified.

24 JUDGE KARLIN: Okay. That's the surveillance control program, 25 which is a licensee-controlled document, which is not a tech spec.

82

1 MR. ROTH: The requirement to do this remains in the Tech Specs.

2 The requirement remains in the Tech Specs.

3 JUDGE KARLIN: What requirement?

4 MR. ROTH: The requirement to perform the surveillance.

5 JUDGE KARLIN: Okay. So there is a tech spec that says you got 6 to do surveillance in accordance with the surveillance frequency control 7 program document.

8 MR. ROTH: Exactly.

9 JUDGE KARLIN: And if you don't so something in compliance with 10 the surveillance control program document, then that's a violation of that 11 tech spec, and, therefore, that is reportable.

12 MR. ROTH: Well --

13 JUDGE KARLIN: Okay.

14 MR. ROTH: -- reporting depends on whether it failed or not, but 15 actually --

16 JUDGE KARLIN: Oh, right. Right.

17 MR. ROTH: -- it would be two Tech Specs. You would have the --

18 well, at least two. You would have the tech spec for the specific equipment, 19 usually in the section three of the Tech Specs, or -- and, in addition, 20 within section five of the Tech Specs is the actual statement about following 21 the program. So I could see potentially a violation would involve both not 22 meeting the admit controls in section five as well as the specific equipment 23 surveillance requirements in section three.

24 JUDGE KARLIN: So is there a, you know -- is there a condition in 25 the license now or as it is requested to be amended which says you must tech

83

1 spec? You must comply with the surveillance frequency control program?

2 MR. ROTH: Yes. There are --

3 JUDGE KARLIN: And what is that? Do you have a cite for that?

4 MR. ROTH: It should be in our pleading. I'll pull it up here 5 within section five in a moment.

6 JUDGE KARLIN: Great. That would be very helpful, because that 7 seems relevant to me whether it's a difference, a qualitative difference 8 between being in the tech spec or being in a licensee-controlled -- I missed 9 -- maybe Mr. Frantz has that cite.

10 MR. FRANTZ: Yes. It's -- I refer the board here to our license 11 amendment request, Attachment 1, Volume 14, page 83, and it's proposed tech 12 spec 5.5.2.18.

13 JUDGE KARLIN: 5.5. -- is it 5.5.2.18?

14 MR. FRANTZ: That's correct.

15 JUDGE KARLIN: Okay, great. Thank you. That's helpful. I 16 wanted to go back, Mr. Roth, on a couple other of the questions we asked Mr.

17 Frantz and see if you agree with him or have a differing opinion. The 18 question, if you relocate, quote, "this provision from the license from a 19 tech spec and put it into a licensee-controlled document," is it no longer a 20 tech spec?

21 MR. ROTH: No, your honor, and let me --

22 JUDGE KARLIN: All right. It's still a tech spec?

23 MR. ROTH: -- let me segue on the relocate. Previously -- and 24 looking at the last Federal Register notice, your honors were discussing the 25 section on relocated specifications.

84

1 JUDGE KARLIN: Right.

2 MR. ROTH: And that would be on page 49.4.65, the '77 Fed Reg 3 49.4.65. The paragraph immediately below that is actually the relevant 4 paragraph.

5 JUDGE KARLIN: All right.

6 MR. ROTH: That's the removed detail changes.

7 JUDGE KARLIN: All right. Hold on a second. Let me get back to 8 that. Okay. We're on 49.4.67 is what I was questioning about. Are you on 9 49465?

10 MR. ROTH: Well get to 49.4.67 in a moment.

11 JUDGE KARLIN: Okay, 49.4.65, okay. Where are we? What column?

12 MR. ROTH: And the one that starts with removed detail changes, 13 and I don't have the column format. I'm sorry.

14 JUDGE KARLIN: Oh, okay. Oh, I'm sorry. Let's see -- well, 15 removed detail changes. Okay, I see. Is that what you're referring to?

16 MR. ROTH: Indeed.

17 JUDGE KARLIN: Okay.

18 MR. ROTH: And in that one the details that are removed are 19 referring to the details including the surveillance frequency control 20 program.

21 JUDGE KARLIN: Yes. I see that.

22 MR. ROTH: And so that actually is the -- what is happening.

23 It's not removal of surveillance requirements; it's removal of the detail 24 within the surveillance requirements.

25 JUDGE KARLIN: Okay, so there -- we're going back to the same

85

1 provision, which is you're saying well, there is a tech spec that says you 2 must comply with the surveillance frequency control program.

3 MR. ROTH: Yes, that's right, your honor. There's multiple Tech 4 Specs. Each individual equipment that is subject -- that will be used for 5 surveillance frequency control program --

6 JUDGE KARLIN: So.

7 MR. ROTH: -- the pipe component --

8 JUDGE KARLIN: So is the surveillance -- you got a surveillance 9 frequency currently in the license. You're taking it out of the license and 10 putting it into a licensee -- they call it a licensee-controlled document.

11 The surveillance frequency control program is a licensee-controlled document?

12 MR. ROTH: The program is not a licensee controlled document.

13 That's the NEI document, which is incorporated directly in the Tech Specs 14 through proposed tech spec 5.5.2.18.

15 JUDGE KARLIN: Now, is there a document? I mean, they've got a 16 surveillance control program. Is that -- can I find a piece of paper that 17 says, "Here it is; this is the document that is the program"? Is that NEI 18 04-10? Or was it something else?

19 MR. ROTH: Well, that is in the plain language of the Tech Specs, 20 the surveillance frequency control program shall consist of a list of 21 frequencies, requirements for which frequency is controlled by the program, 22 changes to the frequencies -- or in the surveillance frequency control 23 program, and they shall be made in accordance with any NEI 04-10. And so you 24 know, the program could have multiple meanings to multiple people. So the 25 simplest thing is, "Here's the actual proposal as to what licensee elects to

86

1 call, what technical requirement manual, list of surveillance frequencies --

2 "

3 JUDGE KARLIN: So --

4 MR. ROTH: I don't have exactly the information they may choose 5 to call it.

6 JUDGE KARLIN: Okay, so Mr. Frantz seemed to say that if you take 7 it out of the license and put it into a licensee-controlled document, it's no 8 longer a tech spec. And you're saying, "Oh, but it is, because the licensee-9 controlled document is a requirement in a tech spec." Is that your logic?

10 MR. ROTH: To be very clear --

11 JUDGE KARLIN: Yeah. Once it's not --

12 MR. ROTH: -- those requirements remain within the Tech Specs.

13 The program used to change them remain in the Tech Specs. There has to be --

14 JUDGE KARLIN: Hang on. The surveillance frequencies are in the 15 license now. They're going to be moved to a licensee-controlled document, 16 and yet you say they're still in the Tech Specs.

17 MR. ROTH: Yeah, in proposed tech spec 5.5.2.18A.

18 JUDGE KARLIN: Okay, I got you. That's your logic. Now it gets 19 there. Okay.

20 MR. FRANTZ: I'm not sure you characterized --

21 JUDGE KARLIN: Did I mischaracterize you, Mr. Frantz?

22 MR. FRANTZ: Yeah, and like Mr. Roth, what I was saying is that 23 the frequencies were removed, not the surveillance itself.

24 JUDGE KARLIN: Well, that's what I was trying to refer to, the 25 frequencies.

87

1 MR. FRANTZ: Yeah.

2 JUDGE KARLIN: And so -- do you agree with Mr. Frantz that --

3 well, frequencies aren't Tech Specs, but the surveillance requirements are.

4 Are the frequencies still Tech Specs?

5 MR. ROTH: As to the frequency being a tech spec, the frequency 6 is no longer contained within the tech spec, except that they must maintain a 7 list of those frequencies. The actual number, once per year, quite right, 8 it's not going to be within the tech spec.

9 JUDGE KARLIN: Oh, okay.

10 MR. ROTH: List of frequencies, the requirement to have that list 11 remains in the Tech Specs; change methodology remains in the Tech Specs.

12 JUDGE KARLIN: Okay. And now -- and when you relocate the tech 13 spec, the frequency from a tech spec to the licensee-controlled document, is 14 it -- does it become what's referred to in the parlance as a written 15 commitment? A licensee voluntary written commitment?

16 MR. ROTH: No. It would be a requirement that they have this 17 list of frequencies directly stated within the Tech Specs, which are part of 18 the license.

19 JUDGE KARLIN: Well, under -- let's jump to 10-CFR-54.2. There's 20 a definition of current licensing basis, right, and in that definition of 21 current licensing basis they talk about the stuff that's in the license and 22 the stuff that's in the written commitments by the licensee. Which one is 23 the surveillance frequency control program?

24 MR. ROTH: Well, I haven't given much thought to the 54, the list 25 -- which is the list of current licensing basis for renewed plants, but,

88

1 again, the list is required by this plant's Tech Specs. The methodology of 2 changing the list would be --

3 JUDGE KARLIN: But they can change it any time they want, so long 4 as they meet NEI 04-10, right?

5 MR. ROTH: Correct.

6 JUDGE KARLIN: So it's a licensee-controlled document.

7 MR. ROTH: Yes, your honor.

8 JUDGE KARLIN: And they can change it whenever they want.

9 MR. ROTH: Within the realms of 04-10. I don't have specific 10 knowledge whether they can change it every day or if that would be against 11 04-10.

12 JUDGE KARLIN: And is there a legal distinction between -- is a 13 written commitment by a licensee legally enforceable by the NRC?

14 MR. ROTH: As a general principle, it would depend on what the 15 type of commitment was. If they made the commitment to us and it's 16 incorporated into a license condition --

17 JUDGE KARLIN: If it's incorporated in a license condition, yes, 18 but I didn't say that, because I have -- there's another board that's out 19 there, Progress Levy, on November -- I'm sorry, September 21. The board 20 asked the parties to brief the following question. Quote, "Are voluntary 21 commitments made by a licensee legally enforceable by the NRC?" And the NRC 22 staff said no, and the applicant said no, and they were represented by John 23 O'Neill, who is a pretty good attorney, it seems to me. So, what is your 24 answer to that? Are voluntary commitments made by a licensee legally 25 enforceable by the NRC?

89

1 MR. ROTH: I would first say this is not a voluntary commitment 2 made by --

3 JUDGE KARLIN: Okay. I understand that's your position, but are 4 they enforceable?

5 MR. ROTH: I would presume not.

6 JUDGE KARLIN: Okay. Mr. Frantz.

7 MR. FRANTZ: I agree with that.

8 JUDGE KARLIN: That they are not enforceable?

9 MR. FRANTZ: The NRC can and sometimes does, issue what are 10 called notices of nonconformance, a violation, if you want to call it that, 11 of a commitment. But they can't issue, for example, a civil penalty 12 associated with that.

13 JUDGE KARLIN: Now, Mr. Roth, another question about the 14 difference between what the impact of the proposed change, public access.

15 Assume that the request is granted, the proposed license amendment is 16 granted, and one of the concerns Mr. Lutz has raised is, well, look, if it's 17 in the license, the public can see it. If it's in this licensee-controlled 18 document, it's not accessible to the public. Is that correct?

19 MR. ROTH: Yes, your honor, that would be correct. Certainly, if 20 we had it in-house and it was subject to a FOIA --

21 JUDGE KARLIN: Well, you could FOIA it if you had it.

22 MR. ROTH: But it would no longer be within the Tech Specs.

23 JUDGE KARLIN: Right. And are you -- do you --

24 MR. ROTH: Pardon me. Let me clarify. No longer within a 25 document that they would clearly see. I understand our Tech Specs are

90

1 currently public and easy to see. The proposed list of frequencies, although 2 we cited one example where it was publically available, it's my understanding 3 that plants normally don't submit those to us.

4 JUDGE KARLIN: Okay. And do you agree with Mr. Frantz, and this 5 is sort of the same thing, as I understand it that -- well, let me back up.

6 Under 50.59, do you agree that the licensee must submit reports to the NRC 7 about 50.59 changes that they've made?

8 MR. ROTH: I believe the reports are showing up every two years.

9 I would have to double check that.

10 JUDGE KARLIN: Yes. That's what the reg seems to say, no more 11 than two years. Now, with regard to licensee-controlled documents, such as 12 the surveillance frequency control program document, whatever that is, do 13 they have to submit reports to the NRC when they change that document?

14 MR. ROTH: I do not believe the reports are a part of the NEI 06 15 -- the NEI 04-10 process or -- I do not believe so.

16 JUDGE KARLIN: Okay. So, if NRC audited the facility, you could 17 go and look at those documents and -- right?

18 MR. ROTH: Certainly so.

19 JUDGE KARLIN: And -- okay, okay.

20 JUDGE TRIKOUROS: Well, let me interrupt here. I -- this is kind 21 of critical for me. I heard earlier that changing that process is a license 22 amendment. It would be -- would then make it available for petition or 23 intervention.

24 MR. ROTH: If they elected to use a process other than the 25 specified, or proposed in this instance, the REV1 of 04-10, they would have

91

1 to have a license amendment.

2 JUDGE TRIKOUROS: So if we go to an 04-10 REV2, that's a license 3 amendment?

4 MR. ROTH: That's correct.

5 JUDGE KARLIN: But it's not a license amendment if under 04-10 6 REV1 they make some changes to the surveillance frequencies. That's not a 7 license amendment.

8 JUDGE TRIKOUROS: Right.

9 MR. ROTH: No. And I speculate that even if they decided to 10 shift to a different revision, if the staff chose to approve one, they would 11 not include the list of current surveillance frequencies, but I'm entirely 12 speculating on that.

13 JUDGE TRIKOUROS: Just one question on sort of a big picture 14 question. This is not the first plant to do this, correct?

15 MR. ROTH: No. I believe this would be licenses number 50 and 16 51, should they be granted.

17 JUDGE TRIKOUROS: Fifty-one? So there's plenty of data out there 18 regarding any affect of this program. For example, is the staff seeing an 19 increase in safety LARs?

20 MR. ROTH: No, they're not, your honor, or at least to the best 21 of my knowledge they're not.

22 JUDGE TRIKOUROS: Okay. So there hasn't been -- because the 23 proof of the pudding is in the -- in whether or not there are any violations 24 of the Tech Specs that come out of this program, and you're saying there 25 hasn't been anything beyond the ordinary?

92

1 MR. ROTH: Correct, your honor. I am informed that that has not 2 occurred.

3 JUDGE BARATTA: All right. I've got a couple of questions for 4 you. When did the Southern California Edison submit these proposed changes?

5 MR. ROTH: I have to consult the Fed Reg notice here to see the 6 date. July 29, 2011.

7 JUDGE BARATTA: 2011. Okay. Im now much more familiar with the 8 COL process and the license renewal process, things like that. Did the staff 9 do a sufficiency review to see if there was enough material to review?

10 MR. ROTH: Yes.

11 JUDGE BARATTA: Okay. Is it customary that once that sufficiency 12 review is done that the amendment be either docketed or noticed?

13 MR. ROTH: Yes, your honor. They -- we did notice this 14 amendment. We got the Fed Reg notice.

15 JUDGE BARATTA: Why, then, did it take over a year for that to 16 occur?

17 MR. ROTH: I could not speak to any delay. The amendment has not 18 been granted. It was noticed, and a hearing request was put forward.

19 JUDGE BARATTA: Well, it seems like there's a disconnect between 20 13 months -- or let's say it would take you two months to do a sufficiency 21 review. It's a year late and two days late. Isn't that -- there seems to 22 be, like, a couple of orders of magnitude difference there, isn't there?

23 MR. ROTH: I do not believe the staff is late in terms of any 24 regulation with their Fed Reg notice.

25 JUDGE BARATTA: Well, custom, though, would dictate otherwise, if

93

1 you would be a little more punctual. I guess that does bother me a little 2 bit, since you did not -- you criticized the Citizen's Oversight Group for 3 not falling within the allotted time for requesting a hearing. It seems as 4 though you did not notice it within a reasonable time of having received it.

5 Let me go on to the next question here. If what you say is correct, that the 6 50.59 is not required to be done, nor is there a reporting requirement when a 7 frequency is changed, there is, then, as has been alleged, a relaxation of 8 oversight. Is that correct?

9 MR. ROTH: To the extent that oversight refers to requesting a 10 license amendment, yes, that's correct.

11 JUDGE BARATTA: Okay. Or to being subject to reporting 12 requirements, is that correct?

13 MR. ROTH: No. The reporting requirements do not change. If 14 they fail to meet -- if the surveillance fails, the only other process is to 15 --

16 JUDGE BARATTA: No. I'm referring to reporting requirements of 17 changes to the -- under 50.59 you could make a change of some things and have 18 to report it, but under this program you do not.

19 MR. ROTH: Under 50.59 they could not make a change to the 20 previous surveillance requirements period. So the reporting requirements are 21 academic.

22 JUDGE BARATTA: All right. Let's -- you also mentioned that 23 SCE's proposal includes establishing an independent decision-making panel.

24 From a professional standpoint, given the aging of the industry, do you 25 expect the members on that panel to have much experience?

94

1 MR. ROTH: Your honor, I could not speak at all to what SCE's 2 decisions are as to who is going to be on their panels that they put together 3 in accordance with their requirements of NEI 04-10.

4 JUDGE BARATTA: Well, you do speak to that in your pleading, I 5 see, so I thought you'd be more knowledgeable about it.

6 MR. ROTH: I can speak that this is what the requirements will 7 be. As to when they actually have the panel and who's going to be on the 8 panel, that's the licensee's decision. The NRC would inspect to make sure 9 they're following the requirements of the panel under the oversight -- the 10 reactor oversight program.

11 MR. FRANTZ: Judge Baratta, if I may. This may help. NEI 04-10 12 does have a list of individuals who should be on this independent decision-13 making panel, and I'll refer the board here to exhibit one, page 44 of that 14 guidance document. And among the members who have to be present -- or at 15 least part of the panel, including the engineering manager, maintenance 16 manager, operations manager, maintenance risk coordinator, work control 17 management, so it's management -- basically management-level personnel plus 18 people like the surveillance test coordinator. So it's fairly experienced 19 personnel.

20 JUDGE BARATTA: So you don't have your oversight committee that -

21 - involved in that at all?

22 MR. FRANTZ: I assume, such as anything else, it's subject to QA 23 audits and surveillances. But you're right. I don't see any member from the 24 QA organization who's present or a member of the panel itself.

25 JUDGE BARATTA: All right. So there is a statement that appears

95

1 -- starts on page 17 of your -- the staff's pleading, in that you say that 2 the citizen's oversight term is that a particular frequency must be used to 3 further the performance be specified in the Tech Specs, then they may request 4 the NRC to proceed to modify a license to specify a particular frequency.

5 Now, earlier you made a statement that such things are not subject under the 6 AEA to public scrutiny. That seems to contradict that.

7 MR. ROTH: I'm uncertain which area is the source of confusion; 8 however, COPS can always file the 2206, and through the 2206 process they can 9 request the director to modify or amend the license or take whatever actions 10 are appropriate and necessary. So if they conclude that a diesel test, for 11 instance, should be performed once a month rather than once every two months, 12 maybe certainly petition the staff to make such a change to the license.

13 JUDGE KARLIN: I have one -- I think I have one last question for 14 Mr. Roth and then we're going to go back to Mr. Lutz to wrap up contention 15 number one, and then we're going to take a short break and go to Contention 16 2, and hopefully finish by 5:00, in one hour. Anyway, one last question for 17 you, Mr. Roth, and it's the same one I asked Mr. Frantz, help me with 18 50.36(c3), okay? That's the reg that talks about surveillance requirements.

19 And being a novice in this area I look at -- when I saw this contention about 20 surveillance frequency and surveillance requirements, I said, "Ah, this is 21 the relevant reg. This tells us that surveillance requirements must be Tech 22 Specs." And yet, when I read the Federal Register notice, I see everybody's 23 focusing on 50.32(c2)(ii) A through D, the four criteria. So do you agree 24 with Mr. Frantz essentially that the surveillance requirement provision of 25 50.36(c3) just says you got to have surveillance requirements and frequencies

96

1 are not relevant or part of that?

2 MR. ROTH: That's correct, your honor. The surveillance 3 requirements remain within the technical specifications. The only thing, 4 which is now not going to be directly visible in technical specifications, is 5 the once per week, once per month, once per year number.

6 JUDGE KARLIN: And those are the frequencies, and those are not 7 covered by (c3), is that what you're saying?

8 MR. ROTH: That is correct. Under (c3) there is no requirement 9 that the frequency be specified within the Tech Specs, just as there's no 10 requirement that the --

11 JUDGE KARLIN: Is there any law that says (c3) -- that's what 12 (c3) means when it says "surveillance requirements"? It just means you got 13 to have them. It doesn't mean any of the specifics of how frequent they 14 should be or what they should be or anything like that?

15 MR. ROTH: I believe your honor's decision will be the first 16 decision addressing this.

17 JUDGE KARLIN: [laughs] Perhaps. Not if we can avoid it. No no.

18 [laughter]

19 It's pretty esoteric.

20 MR. ROTH: Now I'd also like to go back and revisit the Fed Reg 21 notice. As I discussed earlier, this is a removal of details and the Fed Reg 22 notice that you had read before was actually one on relocated specifications, 23 not on removal of details.

24 JUDGE KARLIN: Right. No, and that's one of the things -- as Mr.

25 Lutz, Citizens Oversight is -- this contention seems to be focusing on the

97

1 relocation. I mean, there are other parts of the Tech Specs that deal with 2 relaxation of the frequency, relaxation of the method, deletion. They didn't 3 object to that.

4 MR. ROTH: No, but this is to clarify so your honor's have the 5 right --

6 JUDGE KARLIN: Okay.

7 MR. ROTH: -- section of the Fed Reg. And, again, I have the 8 West Law printout. I don't have the column version. But on page 49.4.67, as 9 you look down or across the columns, you'll see a separate section addressing 10 the proposed no significant hazards for the remove detail changes. And since 11 the remove detail includes the surveillance frequency control program, that 12 is the section that the staff intends to be applied for the no significant 13 hazards consideration for the surveillance frequency control program.

14 JUDGE KARLIN: Okay. I see the remove detail provision on 15 49.4.67, yes.

16 MR. FRANTZ: Judge Karlin, can I make one more statement in 17 response to something that Mr. Lutz raised? He said we're going to be using 18 this program to reduce surveillance frequencies. That may be true in some 19 cases, but in other cases --

20 JUDGE KARLIN: No, I didn't say that. I don't think I did.

21 MR. FRANTZ: I said Mr. Lutz did. Mr. Lutz did. I want to 22 respond to something Mr. Lutz said. In some cases, of course, we actually 23 may be increasing the surveillance frequency.

24 JUDGE KARLIN: Okay.

25 MR. FRANTZ: Under NEI 04-10 we're supposed to do periodic

98

1 monitoring.

2 JUDGE KARLIN: Okay. I understand.

3 MR. FRANTZ: Okay.

4 JUDGE KARLIN: I understand. Mr. Lutz, we're going to give you a 5 chance -- I mean, you heard a lot of -- presumably some of our questions. I 6 don't know that there's anything -- I don't have any additional questions for 7 you, sir, but do you want to say anything about what -- on Contention Number 8 Two based on what we just discussed? I'm sorry. Contention number one.

9 MR. LUTZ: Contention -- okay, yes, thank you. Yes I do. I have 10 a few things I'd like to bring out here. First of all, I'd like to, if 11 possible, have you turn to page four of NEI 04-10, page four.

12 JUDGE KARLIN: I'm sorry. I don't have that in front of me, but 13 --

14 MR. LUTZ: Okay, well, let me just tell you what it says. It 15 says -- it's a reference here. It says the method described here is also 16 consistent with RG1.174 reference six. I'm going to skip that one and, 17 RG1.177, which is, quote, "an approach for plant-specific risk informed 18 decision-making: Technical Specifications," unquote, and provides more 19 specific guidelines to facilitate application by the licensee. So it claims 20 at this point -- and this is the control frequency control program that 21 everybody refers to. It actually says it is consistent with this other 22 document. And that's the one that I brought out earlier, and I had those 23 various sections that I detailed, which state that the risk -- this plant-24 specific risk-informed process would be submitted as license amendment. Each 25 time they go through and they say, "Gee, we want to change these

99

1 frequencies," like -- Citizens Oversight has no trouble with the operators of 2 the plant reviewing the surveillance frequencies and deciding that they might 3 want to change them, even doing -- increase them, or maybe reduce them 4 substantially. There may be some good reasons for that. But we object to 5 the idea, and it also is not supported. It is not consistent with this other 6 document. In that document the process is, it goes through the license 7 amendment process. Now, furthermore, on this same document, you don't have 8 it there, but in your review of this maybe later when you get a chance, if 9 you would look at -- there's a whole bunch of steps and there is a step 10 seven. Step seven is identify qualitative -- it's on page 10 -- qualitative 11 considerations to be addressed. So this -- this is a very long section.

12 There are 14 steps in this control program. The whole document is -- I'm 13 looking at page numbers here toward the end -- 33 pages. On step seven is a 14 whole bunch of qualitative issues that have to be addressed, and they're 15 relying -- we're relying upon the licensee to go through the process of --

16 without any review from anybody, addressing all of these things, such as 17 impact on -- defense in-depth protection, vendor specified maintenance, test 18 intervals, impact, or in an adverse environment, and they're supposed to 19 document assumptions in the plant that would be of the license that would be 20 invalidated. No one gets to review that, so it's all put in the hands of 21 this -- of the licensee to -- so, essentially, the control frequency control 22 program lets them change anything they want once they get through this 23 qualitative thing. There's no review or anything, and there's so much 24 looseness in this whole program. This is not just an equation that you type 25 in on a spreadsheet and you get an answer. This is a big process, and to put

100

1 it in the hands of the licensee without any review is unacceptable.

2 Now, I'd like, if you can, the document that I was referring to, which is 3 volume seven of the attachments in the license amendment that is a document 4 under question here. Is there a possibility that we can take a look at page 5 88?

6 JUDGE KARLIN: We don't have that available to bring up, and I 7 dont have that document --

8 MR. LUTZ: Okay, in that case, let me --

9 JUDGE KARLIN: -- in front of me.

10 MR. LUTZ: -- let me just tell you what it says and I invite you 11 to take a look at it later.

12 JUDGE KARLIN: All right.

13 MR. LUTZ: On page 88 it has a title that says surveillance 14 requirement 3.4.4.1. That's the number of the surveillance requirement. It 15 actually says SR3.4.4.1 for surveillance requirement. And on the first 16 column it says surveillance, and in the second column it says surveillance 17 frequency. The definition of a surveillance requirement SR3.4.4.1 is both 18 the surveillance, what's going to be checked, and how often it's checked.

19 Those two things are not something that they can split up. A surveillance 20 requirement has to incorporate both things, both what you're checking and the 21 fact that you're going to check it. You can't just say you're going to 22 possibly check something and then never do it.

23 All right. Now, I heard these things from the testimony, that they do not 24 get -- do not require to get any NRC approval for changing the -- going 25 through this process and changing the surveillance frequencies. There's no

101

1 mandatory reporting once it's pulled out and it's no longer a technical 2 specification. They can change it at any time. Therefore, they'll never 3 violate it. They'll change it so they'll never violate it. Theyll say, 4 "Oh, we went over that. We'll just quickly change it, and then we're not in 5 violation." And even if -- this list of surveillance frequencies is not even 6 submitted to the NRC. No one gets to see it. Not even the regulatory agency 7 gets to see it --

8 JUDGE KARLIN: Mr. Lutz.

9 MR. LUTZ: -- and they're not notified.

10 JUDGE KARLIN: Mr. Lutz, okay, let me just ask. Your earlier 11 point about -- you were referring to 3.4.4.1 in surveillance requirements. I 12 guess, as I'm understanding, your point is, is the surveillance requirements 13 as reflected there include both the frequency and something else, and you're 14 suggesting --

15 MR. LUTZ: A thing called a surveillance, yeah.

16 JUDGE KARLIN: -- and you're suggesting that --

17 MR. LUTZ: The surveillance is --

18 JUDGE KARLIN: Go ahead.

19 MR. LUTZ: It's called a surveillance and a surveillance 20 frequency. According to that --

21 JUDGE KARLIN: Okay. And therefore -- therefore, when I'm 22 talking about 50.36(c3) that talks about surveillance requirements must be in 23 the Tech Specs, you're suggesting that frequency is part of the surveillance 24 requirements; it must be in the Tech Specs. Is that right?

25 MR. LUTZ: Yes.

102

1 JUDGE KARLIN: Okay.

2 MR. LUTZ: That's my point. Okay, so my point is then made.

3 Then, we were saying that this list of -- let's say they're pulled out of the 4 Tech Specs, and we've got this long list of frequencies somewhere else.

5 That's not submitted to the NRC. No one gets to see it. They're not 6 notified if it's changed. They can change it as fast as they want so that 7 there's no way it can violate. So this comment that other plants are doing 8 it, I -- actually, I hope that's not really entertained in this sort of 9 proceeding as a reason to allow them to continue to do something. Two wrongs 10 don't make a right. The fact that staff is not getting notified, this idea 11 that it's proof of the pudding that there would be no violations -- they'll 12 never have a violation because they can change the surveillance frequencies 13 at will. So if you ask the person, the licensee, you regulate yourself. You 14 tell me when you violated those frequencies that you maintain yourself, and I 15 never get to know about them, and just tell me when you violate them. And 16 that's going to be proof of the pudding?

17 JUDGE KARLIN: Okay.

18 MR. LUTZ: I mean, what happened to the regulatory agency here?

19 JUDGE KARLIN: Okay. Can -- we're going to need a biological 20 break here in a minute or two and go on to Contention 2.

21 MR. LUTZ: Okay, so that's --

22 JUDGE KARLIN: So can you kind of wrap this up a little bit?

23 MR. LUTZ: That's the end of my rebuttal statements.

24 JUDGE KARLIN: Okay. Thank you, Mr. Lutz. So at this point we 25 need to take a quick break and we're going to come back for Contention 2 and

103

1 three if we have any, and then closing statements. Well try to move this a 2 little quicker along. So let us adjourn for 10 minutes. Please be back in 3 10 minutes sharp. Thank you. We are adjourned.

4 (Whereupon, a short recess was taken) 5 JUDGE KARLIN: Okay, the licensing board is now on a back end 6 session. We are going to turn to Contention Number Two and ask a few 7 questions about it. I think we dont have quite as many questions, but as I 8 understand it and read Contention 2, it has a number of parts to it that have 9 perhaps some similar themes, but I believe theyre different parts, and so 10 maybe well ask Mr. Lutz a question about, you know, Contention 2, part one, 11 shall I call it, and then maybe ask Mr. Frantz or Mr. Roth to respond to the 12 Contention 2, part one. And so, thats on e approach.

13 Now as I understand petition on Page 17 -- Im sorry, Page 9, 14 paragraph 17 raises a contention, a concern that the proposed license 15 amendment involves a reduction in the steam generator level from 25 percent 16 to 20 percent.

17 In the mean time, Mr. Lutz, Edison says, No, theres no change 18 occurring to this at all. The current tech spec is 20 percent and the 19 license as it would be amended is going to stay at 20 percent. That seems --

20 is that -- Do you agree with that, Mr. Lutz, that license provision is not 21 being changed?

22 MR. LUTZ: No, I disagree with that. The actual markup of the 23 document shows that his changing the figure from 25 percent to 20 percent.

24 Thats the actual markup in the document, saying what its changing from and 25 to. So, this is a proposed change to the document, and it --

104

1 JUDGE KARLIN: Well, okay. Let me just focus then. Mr. Frantz, 2 Id like you -- could you explain your position as to whether its a change 3 or not?

4 MR. FRANTZ: Judge Karlin is it okay if Mr. Burdick addresses 5 this contention.

6 JUDGE KARLIN: No.

7 MR. FRANTZ: Okay.

8 JUDGE KARLIN: I mean we dont want to triple team Mr. Lutz, 9 here.

10 MR. FRANTZ: Im happy to address this. What Mr. Lutz is 11 referring to is a markup not of our current tech specs, but instead the 12 improved standard tech specs. Weve provided two different markups, and hes 13 referring to the markup of the improved standard tech specs, and that in fact 14 they show a change from 25 to 20. If you look at the current tech specs, the 15 current tech specs are not being changed as claimed in both.

16 JUDGE KARLIN: So, whats -- the current tech spec is 20.

17 MR. FRANTZ: Thats correct.

18 JUDGE KARLIN: And there is this thing called the improved 19 standard tech specs, right?

20 MR. FRANTZ: Thats correct.

21 JUDGE KARLIN: And thats some generic document out there 22 somewhere, right?

23 MR. FRANTZ: Thats correct.

24 JUDGE KARLIN: And that improved standard tech spec document has 25 in it the number 25.

105

1 MR. FRANTZ: Thats correct.

2 JUDGE KARLIN: And you were saying, Ah, in our current specs 3 its 20. So, were going to take this improved standard tech spec document 4 thats got 25, and were going to put the -- insert 20 to keep it consistent 5 with our current tech specs?

6 MR. FRANTZ: Thats correct.

7 JUDGE KARLIN: Mr. Lutz, can you respond to that, or go ahead 8 Judge Baratta.

9 JUDGE BARATTA: Okay, so the improved standard tech specs are 10 something that the NRC staff agreed to previously as a generic document or 11 generic -- okay, so in order for you to incorporate your current tech specs 12 into that format you have to make changes to the document that the staff has 13 agreed to, to make it consistent with what your plant licensing basis is. Is 14 that correct 15 MR. FRANTZ: Thats correct.

16 JUDGE BARATTA: Okay.

17 JUDGE KARLIN: Mr. Lutz, that seems to make sense to me. Theyre 18 not changing it. The current techs rate is 20. The proposed techs spec is 19 20.

20 MR. LUTZ: Okay well the problem is, is that its inconsistent 21 with all the other references to the requirements for the steam generator 22 water level. On Page 124 it changes it from 25 to -- from greater than 25 to 23 greater than or equal to 50 percent with that parenthesized wide range, and 24 then on Page 128 it goes from 25 percent to greater than or equal to 50 25 percent. On Page 55 it goes from 25 percent to 50 percent. On Page 162 its

106

1 the same as I just mentioned, Page 190 is basically the same --

2 JUDGE KARLIN: Okay, okay. I got you. Mr. Lutz, Mr. Lutz, we 3 got you, and Mr. Frantz, whats your response to that?

4 MR. FRANTZ: In general, there are two different provisions, one 5 that deals with the level that results in a reactor trip, and thats the 20 6 percent level. The 50 percent level is the level thats applied to some of 7 the non-power modes of operation and are required to be there for core 8 cooling during the shutdown commission. So, its a different type of 9 provision in question. One pertains to operation power, which is the 20 10 percent level, and the 50 percent level pertains to the other modes of 11 operation.

12 JUDGE TRIKOUROS: Right. So, you are saying these are two 13 totally different set points, one is currently set at 50 percent, the other 14 is currently set at 20 percent. Those same two numbers are reflected in the 15 improved tech specs, and there is no inconsistency. There is no 16 typographical errors, that the equating of the 20 percent of the 50 percent 17 is a misunderstanding of the technical design of the plant.

18 MR. FRANTZ: In the case of the 50 percent, I think the improved 19 tech specs have a 25 percent, and so were going from 25 to 50 percent.

20 JUDGE TRIKOUROS: It appears that the place holder for the level 21 in these improved tech specs seems to be a 25 percent number generically 22 across the board. I dont know why they did that, and quite often they use a 23 star asterisk or something, it says, you know, Place your number here, but 24 they chose to go with 25 percent as a place holder, which obviously has 25 caused a lot of confusion for Mr. Lutz.

107

1 MR. FRANTZ: I believe thats correct, yes.

2 JUDGE KARLIN: Okay, then perhaps we could turn to the -- well, 3 Mr. Roth, I dont want to let you out of this thing. Do you have anything to 4 -- how do you see whats going on here with the 20 and the 25 percent?

5 MR. ROTH: Thank you, your honor. This is David Roth for the 6 staff. I think the easiest way for your honors to see what is or is not 7 being changed, is to look at attachment one, volume six, Page 12 of 599 of 8 the application that actually has the reactor protection system 9 instrumentation. It shows the trip plants. The licensee has marked it up to 10 indicate what changes they are making. Then significantly on that you'll 11 notice no changes to the set plants for Mr. Lutz believed there were changes, 12 and the staff apologizes for any confusion caused by the placeholders.

13 JUDGE BARATTA: That was volume six?

14 MR., ROTH: Yeah, the application, the detachment one, volume 15 six. Its section 3.3 of the tech specs, the instrumentation section, and 16 its Table 3.3.1-1, which extends across about four pages, because of how 17 its marked up.

18 JUDGE BARATTA: And what pages were those on?

19 MR. ROTH: That would be Page 12 of 599 in the application, and 20 in the tech specs, the rule numbers, the tech spec currently is 3.3 or Page 21 3.3-8, and Page 3.3-9.

22 JUDGE KARLIN: Okay, let's turn -- just -- I think this is a 23 similar problem with the -- may appear in some of the other portions with 24 regard to the, what I would call the second part of Contention 2, which is 25 Petition 10, paragraphs 18 through 21. That as I understand, Mr. Lutz,

108

1 focuses on the pressure boundary leakage provisions, and you are concerned 2 and allege that they are not consistent, and theres a problem there.

3 Southern California Edison answers at 30 and 31 in their answer. So, no 4 those arent being changed.

5 Again, are they being -- is it you position -- I mean you read 6 what they said, and do you still contend that these provisions on pressure 7 boundary leakage are being -- They may be consistent, they may be not 8 consistent. I dont know, but if they arent being changed, you probably 9 don't have -- its not within the scope of this license proceeding to deal 10 with it. So, are they being changed?

11 MR. LUTZ: Okay, so are you asking me the question?

12 JUDGE KARLIN: Yes, sir.

13 MR. LUTZ: If I can just say that hopefully what were deciding 14 here, if these are contentions, and were not actually trying to decide 15 whether theyre correct or not --

16 JUDGE KARLIN: Absolutely.

17 MR. LUTZ: -- and so this first contention had to do with the 18 license. Its a very specific detail that I am contending, and I still 19 submit that its a valid contention, and I therefore request a hearing on it.

20 Moving on to item number two then, on the pressure boundary 21 leakage is -- okay, so the question youre asking me is since they didnt 22 make a change to the license, is it therefore okay for me to make a comment 23 on it, and I would submit to you that the public has the right to comment on 24 any inconsistency within the license at all. It doesnt matter if they 25 decided that they want to change it or not. Theyre saying theyre

109

1 submitting this new license, which theyve made a lot of revisions to for 2 approval, and the public can come in and say, Well, we dont think that this 3 makes any sense, and I still believe that we have a right to do that 4 regardless of their assertion that the scope is restricted so much that I can 5 only talk about the very small changes that theyve made. In the first issue 6 there was an inconsistency between moving everything up from 25 to 50, and 7 moving this one down to 20.

8 JUDGE KARLIN: Okay, well just let me jump -- interject, Mr.

9 Lutz. Let me interject. I mean, this board has to comply with the law, you 10 know, and as I understand it licenses for nuclear power plants contain many, 11 many provisions in them, and hundreds of provisions in them, and occasionally 12 a licensee will come in and ask for some amendment to some specific provision 13 of that license. When they do so as in this case, there will be an 14 opportunity for the public to challenge the change that is being requested, 15 and file a contention. Now, every time you amend one provision of a license 16 with a thousand provisions, you do not reopen for challenge all other 999 17 issues. You can file a comment all you want, but in order to be an 18 admissible contention, it has to be within the scope of the proposed license 19 amendment, and it is binding case law on us, it's not being changed, then 20 its not within the scope as required by 2.309(f)(1). So --

21 MR. LUTZ: Okay, well the changes that are being made refer to 22 checking the leakage. So theres a surveillance frequency change. Theyre 23 taking the surveillance out and theyve got the surveillance requirement in.

24 So, theyre changing a provision in this license. Therefore, that provision 25 is up for discussion. Am I wrong?

110

1 JUDGE KARLIN: The specific change may be up for -- the specific 2 change is up for challenge. Everything else is not within the scope. So if 3 theres no change, then I dont see how its in the scope.

4 MR. LUTZ: Okay, well I still assert that this is a severe 5 problem. I know that in the recent public hearing that we had, the licensee 6 said that they were able to detect leakage down to only 5 percent, or five 7 gallons per day rate, instead of 150. The whole containment building is set 8 up so that theres no leakage, and yet they have this big problem where they 9 allow 150 gallons per day to leak out of the steam generator. So theres a 10 big problem with consistency here. This is a problem that I, representing 11 the public, am concerned about with this. This document, this is a 12 proceeding with this license on the table, and I want this thing addressed.

13 JUDGE KARLIN: Well okay, thank you. I mean there is another 14 proceeding out there, different board, dealing with different issues. Im 15 not sure whether your issues fit into that proceeding or not, but lets turn 16 to the -- another part of Contention Number Two, which I think illustrates 17 the same difficulty here, which is the part of petition on Page 14 of your 18 petition, paragraphs 23 through 30. There youre concerned about the 19 exclusion area. Apparently Interstate 5 penetrates the exclusionary. It 20 goes right through the exclusionary and you are contending that the company 21 needs to install gates and turnarounds on Interstate 5, and theres also 22 public beach signage issues because theyre also in the exclusion area. The 23 staff tells us that this very issue was litigated back in 1974 when this 24 license was originally issued. Theres nothing in these proposed changes, is 25 there, that's changing anything about the exclusion area, is there?

111

1 MR. LUTZ: Not that I can see, but I would like to say that if 2 youre ruling that the exclusion area can be violated with a big freeway 3 going through it and a publicly accessible beach, then the calculations that 4 are made for emissions from the plant need to be adjusted accordingly, so 5 that theyre actually reflecting the exposure of the public instead of the 6 hypothetical exclusion area that doesnt exist.

7 JUDGE KARLIN: Were not ruling that, all we're saying is this 8 issue was raised before, and in order for a contention to be admissible, it 9 has to be within the scope of the proposed license amendment, and if the 10 license amendment doesnt propose any change related to that plant, then its 11 difficult to see how its within the scope, and thats the law we have to 12 operate with and maybe over another -- there is another provision, and Mr.

13 Roth alluded to it earlier, which is 10-CFR 2.206, I believe, which is a 14 petition process where you can file a petition with the NCR staff, not with 15 us judges, but with the staff, saying, We think theres a problem with the 16 existing license and we think you need to fix it, because this is 17 problematic, or, this is illegal, or this is inconsistent, and the staff 18 will take it, and study it, and you know, iron -- I can't speak to, you know, 19 whether youll get the relief you want, but there is that process that is 20 always alluded to, and I just -- and were not ruling here one way or the 21 other whether its within the scope, but we are trying to find out whether 22 theres a change going on. And its my understanding, and Mr. Frantz, if you 23 would address this. Is there any change in the technical specifications that 24 deal with the -- directly or indirectly with the exclusion area?

25 MR. FRANTZ: No.

112

1 JUDGE KARLIN: Okay. Any other questions?

2 JUDGE TRIKOUROS: Well, we skipped over atmospheric dump valves 3 and --

4 JUDGE KARLIN: Oh, atmospheric dump valve. Did you want to --

5 JUDGE TRIKOUROS: Yeah, the -- what I guess Id like to ask a 6 question regarding those to Mr. Frantz. Are the atmospheric dump valves a 7 safety grate [spelled phonetically] component?

8 MR. FRANTZ: Yes, they are.

9 JUDGE TRIKOUROS: And they are a safety grate component and they 10 are in the tech specs?

11 MR. FRANTZ: Thats correct.

12 JUDGE TRIKOUROS: And the operability of the steam generator 13 requires one atmospheric dump valve to be operable on -- there is only one 14 per steam generator, correct?

15 MR. FRANTZ: Thats correct.

16 JUDGE TRIKOUROS: Okay. Now, if you were to operate this plant 17 with -- in the situation where one -- where both steam generators were 18 operable, meaning both steam generators have operable ADVs, and somewhere 19 along the line that ADV fails during power operation, and you were to have an 20 event, well let me back -- say it this way. Would there be some accident 21 that would occur that would not have occurred had they ADV been operable?

22 MR. FRANTZ: Theoretically, Im not sure exactly what youre 23 referring to, but theoretically, we might have an inoperable ADV, but its 24 stuck open, and you know, it should not be open. That would be an event that 25 could be an accident.

113

1 JUDGE TRIKOUROS: The ADV would release secondary sud [spelled 2 phonetically] water in that primary sud water.

3 MR. FRANTZ: Thats correct.

4 JUDGE TRIKOUROS: Okay. The -- so, you would consider that an 5 accident, or would you consider that a cool down transit.

6 MR. FRANTZ: An accident or a -- I didnt want to try to 7 characterize it.

8 JUDGE TRIKOUROS: It would be characterized as a cool down 9 transit?

10 MR. FRANTZ: Yes.

11 JUDGE TRIKOUROS: Well within the design basis of the plant. I 12 was trying to address the statement made by Mr. Lutz regarding the 13 introduction of an accident if the ADV fails and I just wanted to understand 14 if that were in fact the case. Now if the ADV were operable and then got 15 stuck open, there wouldnt be any question that the reactor operators would 16 know that the ADV was stuck open. Theyd be in a cool down event and if the 17 deal with it is within the design basis of the plant. If the ADV were failed 18 --

19 JUDGE KARLIN: Is there a question in there?

20 JUDGE BARATTA: You testified a little while ago.

21 JUDGE TRIKOUROS: Mr. Frantz is nodding his head yeah. My 22 question dealt with operability of the steam generator requires the single 23 ADV to be operable, plant cannot start up, go into mode two, and then mode 24 one without an ADV operable --

25 MR. FRANTZ: Thats correct.

114

1 JUDGE TRIKOUROS: -- on each steam generator, and if somewhere 2 along the line of the ADV fails such that if it were tested, it would not 3 work.

4 MR. FRANTZ: [affirmative]

5 JUDGE TRIKOUROS: Is that a safety issue?

6 MR. FRANTZ: I believe it would be in an action statement then, 7 and have to take action within the specified period of time in the tech 8 specs.

9 JUDGE TRIKOUROS:: Assuming you knew about it.

10 MR. FRANTZ: Again, as you indicate, if you open ADV, its going 11 to be very --

12 JUDGE TRIKOUROS: Im not talking about an open ADV. Im talking 13 about an ADV that simply doesnt --

14 MR. FRANTZ: Okay, there may be a latent defect in there, that 15 youd not know. Thats true of any component in the plant.

16 JUDGE TRIKOUROS: All right, perhaps Im asking a question that 17 requires a detailed knowledge of the transit [unintelligible] the plant.

18 Nothing -- I just looked at the FSAR; I didnt see anything at all, but --

19 MR. FRANTZ: Well to give you an example, the plant is designed, 20 and this is a design basis accident for a break of the main steam line. A 21 break or open ADV is going be less severe than a break of the main steam 22 line.

23 JUDGE TRIKOUROS: Yes.

24 JUDGE KARLIN: Okay, on the atmospheric dump valve portion of 25 Contention Number Two, I have a couple of questions for Mr. Frantz that may

115

1 help me. Again Im struggling to figure out whether theres a change in the 2 tech specs that are occurring or not. You -- on Page 34 of your answer, Mr.

3 Frantz, you assure us that, you says, COPS implies that SCE is reducing the 4 number of ADVs as a part of the LAR. Now, so the reality is theres one ADV 5 per steam generator. Is that right?

6 MR. FRANTZ: Thats correct.

7 JUDGE KARLIN: Currently, physically, thats the reality, one 8 ADV.

9 JUDGE BARATTA: And thats your current licensing base.

10 JUDGE KARLIN: Thats my question. Is that in the -- is that 11 what the license says?

12 MR. FRANTZ: Thats what the license says also.

13 JUDGE KARLIN: Okay, so at first I thought -- well, the reality 14 is theres only one ADV, but the current tech spec says theres got to be 15 two, and youre bringing the current tech spec into conformance with reality, 16 but thats wrong. Is that right?

17 MR. FRANTZ: You are correct. Whats happening, and I think the 18 --

19 JUDGE KARLIN: The current tech spec says one ADV.

20 MR. FRANTZ: Thats correct.

21 JUDGE KARLIN: There is one ADV.

22 MR. FRANTZ: Thats right.

23 JUDGE KARLIN: The proposed tech spec says one ADV.

24 MR. FRANTZ: Thats correct.

25 JUDGE KARLIN: There is no change?

116

1 MR. FRANTZ: Thats correct.

2 JUDGE KARLIN: All right.

3 MR. FRANTZ: This is a case for the improved standard --

4 JUDGE KARLIN: Right.

5 MR. FRANTZ: -- have two ADV per steam barrier, and wed mark 6 that up to show one, which is the current licensing basis, both physically in 7 the plant and the current tech specs.

8 JUDGE TRIKOUROS: So this is a situation where the placeholder in 9 the improved tech spec said two ADVs?

10 MR. FRANTZ: Thats correct.

11 JUDGE TRIKOUROS: Which really should have been again, something 12 other than that -- just a question mark or something.

13 JUDGE KARLIN: And in a sense this is one of those where youre 14 not using the standard tech spec.

15 MR. FRANTZ: Thats correct.

16 JUDGE KARLIN: But you're not changing the current tech spec, 17 because the current tech spec is one. The proposed tech spec will be one.

18 MR. FRANTZ: Thats correct.

19 JUDGE KARLIN: Mr. Lutz, does that -- I think thats logical.

20 MR. LUTZ: I have no further comment on this issue.

21 JUDGE KARLIN: All right 22 MR. LUTZ: Move to the next issue.

23 JUDGE KARLIN: All right. Anything else? Okay, we have no 24 questions with regard to Contention Number Three. We read the briefs. We 25 studied them. We think we understand it. We may be wrong, but we think we

117

1 understand it, and so we don't have questions for the parties, any of the 2 parties on that, therefore we can move to closing statements, please, and 3 therefore we would begin with you, Mr. Lutz, a five minute closing statement, 4 sir.

5 MR. LUTZ: Okay, thank you very much, and I want to, again, thank 6 everybody here with all of your courtesy, and willingness to do this oral 7 argument, and letting me speak.

8 I would like to continue to assert that we improve the visibility 9 of these technical specifications for review by the public. I know that 10 theres been a trend to move everything into the licensee controlled 11 documents. This is a trend I think that has to be reversed. We need to have 12 more transparency as illustrated by the recent executive order, and I hope 13 that the NRC absolutely will comply with the executive order from the 14 president, the leader of the country, and start to move toward more 15 transparency, and put the brakes on putting everything in control of the 16 licensee.

17 And the reason that weve become very, very concerned about is 18 because of the recent events here and in Fukushima, where we enable the 19 licensee to do whatever they want, and they end up blowing it pretty bad.

20 And we want to see more transparency, and I think that will probably fix 21 things so that we dont have to lose so much money, and so forth in this 22 recent event.

23 So I think that weve covered things pretty well, and I want to 24 thank everybody for doing so. I dont really have any further detail here, 25 and I know everybody is looking at their watches, and so forth. So, Id like

118

1 to close with that, but I would like the option if there is one, if theres 2 further questions that Id be able to answer them in writing, because I am 3 neophyte to the process. I didnt provide everything in as much detail 4 perhaps upfront, but if there are some more questions, Im happy to go 5 through and review any documents that you have.

6 I would like to say one further thing though before I conclude, 7 and that is in the references that were made in the COI 01-24, they referred 8 to the start of this whole process when they started moving things into the 9 licensee controlled documents, and they referred to a congressional request, 10 they say, to the NRC, that says we would like you to change your hearing 11 process, and there was a House resolution 177, which it refers to, which is a 12 resolution calling for the development and implementation of a United States 13 nuclear proliferation policy. This went to committee and was never approved, 14 and so referring to that in COI 01-24 I think is inappropriate unless -- and 15 also those other documents that were referred to in that one that you 16 referenced to me, that arent even available in ADAMS, so, it was very 17 difficult to get -- to do my research in terms of getting actually those 18 documents out, and I will refer to this -- I did get only a reference to it.

19 Where is it? I dont have to do it in detail, but basically the idea is that 20 thats a very old trend that had started, and its a new day. Its a new 21 day. We need to open this up. Thank you very much.

22 JUDGE KARLIN: Thank you, Mr. Lutz. Mr. Frantz, five minutes.

23 MR. FRANTZ: Yes, thank you, Judge Karlin. It seems to be the 24 position of Mr. Lutz that once the provision is in the tech spec, it can 25 never be removed. And is just flatly inconsistent with the Commissions 1993

119

1 policy statement, which explicitly encourages licensees to remove the 2 necessary details from the technical specifications. And the reason thats 3 in place is because if you have too many details when the resources of the 4 NRC staff and the licensee are necessarily diverted to changing that, where 5 we're focusing on more important safety issues, and so its been the trend 6 for the last 20 years in accordance with the policy statement to remove these 7 unnecessary details from the tech specs. And instead have the tech specs 8 focus on whats really safety significant.

9 Mr. Lutz also said that we can basically avoid any violation of 10 law in terms of meeting our tech spec frequency just by changing it over 11 time. Thats simply not true. If we miss a surveillance frequency --

12 surveillance frequency control program, thats a violation. If we, after the 13 fact, change the frequency, that does not obviate the fact that we still had 14 a violation initially. We cant after the fact change the frequency to avoid 15 a violation.

16 He also mentioned that he should be allowed to raise a 17 contention, even if the contention is incorrect, and although I recognize the 18 board is not here to judge the technical merits of the contention, if the 19 contention mischaracterizes our application. Now, its certainly what 20 Contention 2 does. The board does not require they have a hearing, but the 21 board can simply look at the application and determine that its been 22 mischaracterized, and reject the contention accordingly. And we certainly 23 wish the board to do so.

24 I mean, frankly, if you look at other issues that have not been 25 addressed in detail, there are other issues on standing, issues on

120

1 timeliness, again even apart from the contentions, we believe the petition is 2 deficient on those grounds, and it should be rejected. Thank you.

3 JUDGE KARLIN: Thank you, Mr. Frantz. Mr. Roth. Oh, okay. Im 4 sorry, Mr. Mullen [spelled phonetically], is it --

5 MR. LINDELL: This is Mr. Lindell for the NRC staff.

6 JUDGE KARLIN: Yes.

7 MR. LINDELL: This pre-hearing conference is about a fairly 8 narrow issue and that the admissibility of COPS actual contention. Did they 9 meet their burden in submitting an adequately supported contention that 10 raised the material genuine dispute with the application? It is not a 11 general forum to talk about the merits of public oversight nor is it the 12 place to raise new arguments. It is not for the board or for the parties for 13 that matter to craft a contention. The burden is on the petitioner to submit 14 a petition by the deadline specified, to show standing and to submit a 15 contention that meets the regulations of 2.309(f)(1). In this case, the 16 petition to intervene was filed after the deadline and no good cause was 17 demonstrated. Moreover, COPS does not have standing. They demonstrate no 18 injury in fact stemming from the challenged license amendment.

19 Now although on reply, COPS raised a new argument that they would 20 lose hearing rights and it is true. The commission has held in the Perry 21 decision that standing is appropriate when there is a loss of hearing rights.

22 Nevertheless, in Perry the reason the Commission allowed standing in the case 23 of loss of hearing rights was because the petitioner in their brief was able 24 to trace a specific safety concern with the loss of those hearing rights. In 25 this case the petitioner had not done so, although they have alleged a loss

121

1 of hearing rights, and only on reply, not in their initial brief. They have 2 not -- they have not traced that loss of hearing rights to a specific safety 3 issue, but rather challenge general the removal of all surveillance 4 frequencies.

5 And then most importantly in regard to contention admissibility 6 COPS has not submitted an admissible contention. COPS' Contentions Two and 7 Three are not within the scope of the proceeding. The federal register 8 notice defined the criteria for the hearing and had to relate to the license 9 amendment at issue. The staff has shown that Contention 2 is primarily based 10 on misunderstandings in the changes to the license amendment request or are 11 related to issues -- and Contention 3 is related to issues clear beyond its 12 scope such as the restart of SONGS.

13 Regarding Contention 1, COPS has alleged no legal deficiency in 14 moving the surveillance frequencies from the technical specifications to 15 licensee controlled documents; moreover, no frequency is actually being 16 changed. Licensees who wish to change the surveillance frequencies would 17 have to follow the surveillance frequency control program. The Millstone 18 case holds that both of these factors weigh against contention admissibility.

19 And finally to close with the words of Millstone, "One could make 20 a theoretical argument that safety might be diminished because these items in 21 the future could be changed without the additional oversight and controls 22 provided by a license amendment, for the general premise is insufficient, by 23 itself, as a ground for intervention. For these reasons, COPS has not 24 submitted an adequately supported contention that raises the material for 25 general dispute with the application, and therefore the board should find the

122

1 proposed contentions inadmissible. Thank you.

2 JUDGE KARLIN: Okay. Thank you Mr. Lindell. Okay. Thank you 3 all for answering our questions and presenting your case. Where do we go 4 from here? We will take this under advisement, we will go back and look at 5 some of the citations you've given us here today because I didn't have all 6 those documents in front of me, I had some, and study the material and render 7 a decision and write it up and issue it. And it'll probably within some time 8 in January. But we hope to rule within -- by -- in January, late January I 9 suspect.

10 But in any event we will rule on the request for a hearing and 11 all we're focusing on here, as Mr. Lutz has pointed out, is not the merits of 12 whether the contention wins or loses but whether the contention meets the 13 admissibility criteria. Also, we may also need to focus on the issues like 14 timeliness and standing.

15 And so once again I appreciate everyone's participation. I 16 appreciate Mr. Lutz, you bearing with us through the technical difficulties 17 out there and Mr. Deucher, I appreciate your trying to help us on that end of 18 the deal. You get the nice trip to California; we all get stuck here in 19 Washington, D.C. But so be it. Is there anything else from Dr. Baratta --

20 JUDGE BARATTA: No, nothing else.

21 JUDGE KARLIN: Okay, then we'll consider this closed and we will 22 issue a ruling in due time. Thank you. This proceeding is closed.

23 (Whereupon, at 4:54 p.m. the above-entitled matter was concluded.)

24 E-N-D-P-R-O-F-P-R-O-C-D-E-E-D-I-N-G-S 25

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

SOUTHERN CALIFORNIA EDISON, CO. )

)

(San Onofre Nuclear Generating Station - ) Docket Nos. 50-361-LA and 50-362-LA Units 2 and 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Pre-Hearing Conference Transcript (December 5, 2012) have been served upon the following persons by the Electronic Information Exchange.

Office of Commission Appellate U.S. Nuclear Regulatory Commission Adjudication Office of the Secretary of the Commission U.S. Nuclear Regulatory Commission Mail Stop O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov Hearing Docket Atomic Safety and Licensing Board Panel E-mail: hearingdocket@nrc.gov U.S. Nuclear Regulatory Commission Mail Stop - T-3 F23 Washington, DC 20555-0001 Morgan, Lewis & Bockius, LLP 1111 Pennsylvania, Ave. N.W.

Alex S. Karlin, Chair Washington, D.C. 20004 Administrative Judge Paul M. Bessette, Esq.

E-mail: alex.karlin@nrc.gov Kathryn M. Sutton, Esq.

Stephen J. Burdick, Esq.

Anthony J. Baratta Steven P. Frantz, Esq.

Administrative Judge William E. Baer, Jr., Esq.

E-mail: anthony.baratta@nrc.gov Mary Freeze, Legal Secretary Antoinette Walker, Legal Secretary Nicholas G. Trikouros E-mail:

Administrative Judge pbessette@morganlewis.com E-mail: nicholas.trikouros@nrc.gov sburdick@morganlewis.com sfrantz@morganlewis.com wbaer@morganlewis.com ksutton@morganlewis.com mfreeze@morganlewis.com awalker@morganlewis.com

San Onofre Nuclear Generating Station, Units 2 and 3, Docket Nos. 50-361-LA and 50-362-LA Pre-Hearing Conference Transcript (December 5, 2012)

U.S. Nuclear Regulatory Commission Citizens Oversight, Inc.

Office of the General Counsel 771 Jamacha Road, Suite 148 Mail Stop - O-15 D21 El Cajon, CA 92020 Washington, DC 20555-0001 Raymond Lutz Edward Williamson, Esq. raylutz@citizensoversight.org David Roth, Esq.

Catherine Kanatas, Esq.

Maxwell Smith, Esq.

Robert Weisman, Esq.

David Cylkowski, Esq.

Joseph Lindell, Esq.

edward.williamson@nrc.gov david.roth@nrc.gov catherine.kanatas@nrc.gov maxwell.smith@nrc.gov robert.weisman@nrc.gov david.cylkowski@nrc.gov joseph.lindell@nrc.gov OGG Mail Center: ogcmailcenter@nrc.gov

[Original signed by Brian Newell]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 13th day of December, 2012 2