ML041950013
| ML041950013 | |
| Person / Time | |
|---|---|
| Site: | Millstone  |
| Issue date: | 06/30/2004 |
| From: | Holland P Neal R. Gross & Co. |
| To: | Office of Nuclear Reactor Regulation |
| Byrdsong A T | |
| References | |
| %dam200602, +adjud/rulemjr200506, 50-336-LR, 50-423-LR, ASLBP 04-824-01-LR, RAS 8114 | |
| Download: ML041950013 (184) | |
Text
RAS 9/Ii+
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
i NI Dominion Nuclear Connecticut Docket Number: 50-336-LR, 50-423-LR DOOKETED Location: New London, Connecticut USNRC July 8, 2004 (1:19PM)
I OFFICE OF SECRETARY RULEMAKINGS AND Date: Wednesday, June 30, 2004 ADJUDICATIONS STAFF Work Order No.: NRC-1 569 Pages 1-182 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433 temP(1= s6 Cy- o3"2 i ISECV-OX
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE ADMINISTRATIVE JUDGES:
DR. PAUL B. ABRAMSON RICHARD E. COLE ANN MARSHALL YOUNG
)
In the Matter of: )
) Docket Nos. 50-336-DOMINION NUCLEAR CONNECTICUT, ) LR, 50-423-LR INC.
Wednesday, June 30, 2004 The Initial Prehearing Conference in the above-entitled matters convened at 9:02 a.m., in Ballroom 1, Radisson Hotel, 35 Governor Winthrop Boulevard, New London, Connecticut.
APPEARANCES:
On Behalf of the Petitioners:
DAVID R. LEWIS, ESQ.
of: Shaw Pittman LLP 2300 N Street, N.W.
Washington, D.C. 20037 (202) 663-8474 LILLIAN M. CUOCO, ESQ.
Senior Counsel Dominion Resources Services, Inc.
Rope Ferry Road Waterford, Connecticut 06385 (860) 444-5316 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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2 APPEARANCES: (cont'd)
On Behalf of Connecticut Coalition Against Millstone:
NANCY BURTON, ESQ.
147 Cross Highway Redding Ridge, Connecticut 06876 On Behalf of the Nuclear Regulatory Commission:
CATHERINE L. MARCO, ESQ.
MARGARET J. BUPP, ESQ.
BROOKE D. POOLE, ESQ.
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3 1 P-R-O-C-E-E-D-I-N-G-S 2 (9:02 a.m.)
3 CHAIRMAN ABRAMSON: Let's go on the 4 record, please.
5 Good morning. Today we are here to 6 conduct an initial prehearing conference in the 7 Dominion Nuclear Units 2 and 3 License Renewal 8 Application proceeding.
9 We are pleased to see public interest in 10 this proceeding and thank you for attending.
11 Let me note that in contrast to the 12 townhall meeting, which was conducted by the NRC's 13 Office of Nuclear Reactor Regulation on May 18th in 14 Waterford, this is a formal legal proceeding, and only 15 the attorneys representing the parties to this legal 16 proceeding will be permitted to address this Board.
17 Also, in that regard, we expect to 18 maintain the customary courtroom decorum, and no 19 banners, signs, or the like will be permitted in this 20 hearing room, and no photographer or member of the 21 press or public will be permitted to enter the region 22 in the front of this hearing room reserved for the 23 parties and their counsel.
24 In response to a notice of opportunity for 25 a hearing published on March 21, 2004, in Volume 69 of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4 1 the Federal Register, at page 11,897, Petitioner 2 Connecticut Coalition Against Millstone -- CCAM -- has 3 requested an adjudicatory hearing. The subject of the 4 requested hearing would be the January 22, 2004, 5 application of Dominion Nuclear Connecticut for 6 renewal of the Millstone Units 2 and 3 operating 7 licenses.
8 As is our usual practice, we scheduled 9 this prehearing conference to provide these 10 Petitioners and participants with an opportunity to 11 make oral presentations on the contested matters that 12 are now before the Licensing Board as a result of 13 their various filings over the past several months.
14 The focus of this prehearing conference will be the 15 admissibility of the contentions proffered by the 16 Petitioner.
17 Before we begin hearing the parties' 18 presentations on these matters, I would like to 19 introduce the Board members. To my left is Dr.
20 Richard Cole. Dr. Cole is an environmental engineer 21 and a full-time member of the Atomic Safety and 22 Licensing Board Panel. And to my right is Judge Ann 23 Marshall Young. Judge Young is an attorney and a 24 full-time member of the Panel.
25 I'm Dr. Abramson. I'm an attorney and a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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5 1 scientist, serving the Panel as both a Technical Judge 2 and a Legal Judge, and I am the Chairman of this 3 Licensing Board.
4 At this point, I'd like to have counsel 5 for the various participants identify themselves, 6 commencing with counsel for CCAM.
7 MS. BURTON: Good morning. I'm Nancy 8 Burton. I'm an attorney, and I represent the 9 Connecticut Coalition Against Millstone in these 10 proceedings.
11 CHAIRMAN ABRAMSON: Thank you, counselor.
12 MR. LEWIS: My name is David Lewis. I'm 13 with the law firm Shaw Pittman, representing Dominion 14 Nuclear Connecticut. With me is Lillian Cuoco, who is 15 Dominion's Senior Nuclear Counsel.
16 MS. MARCO: Good morning. My name is 17 Catherine Marco, and I represent the Staff of the 18 Nuclear Regulatory Commission. And with me at the 19 table is Brooke Poole.
20 CHAIRMAN ABRAMSON: Thank you, counselor.
21 So there is no misunderstanding, I would 22 note, as we stated in our June 8 issuance, 23 presentations to the Board may only be made by the 24 participant counsel who have just identified 25 themselves.
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6 1 We note at this point that, according to 2 our records, counsel for the Petitioner has not 3 complied with that portion of our June 8 order 4 requiring all attorneys or other representatives of 5 the parties to file notices of appearance with this 6 Board by June 15th; and, further, that we expect the 7 parties to adhere strictly to the rules and 8 regulations which govern our proceedings.
9 The first matter before today's prehearing 10 conference will be Petitioner's request for a stay of 11 our proceeding pending the outcome of CCAM's petition 12 to the Second Circuit. And, thereafter, our 13 proceedings will focus singularly on admissibility of 14 Petitioner's six contentions, the determination of 15 which is subject to the very concise requirements 16 described in the Commission's March 12th notice, as 17 set out fully in 10 CFR 2.309(f).
18 Bearing in mind that each member of this 19 Board has read all of the filings in this matter, we 20 established in our June 21 order time allocations for 21 presentations that affords an opportunity for the 22 participants to address the key substantive matters 23 raised in the filings now before the Board.
24 This Board intends to follow that schedule 25 as closely as is possible in terms of the issues and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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7 1 allocated times for arguments. In that regard, before 2 starting on an issue for which a participant has been 3 afforded an opportunity for argument and rebuttal, 4 counsel should indicate how much of the total time 5 allocation he or she wishes to reserve for rebuttal.
6 It is our policy that the Petitioners will 7 always have the last word, so CCAM will -- no matter 8 whether you elect to rebut, she'll have a chance to 9 respond to that.
10 The Board will be providing counsel with 11 notice of the need to finish his or her presentation 12 toward the end of its allocated argument time. I have 13 asked our legal clerk, Susan Lin, to give you a notice 14 when there's one minute left.
15 Our approach will be that we will let you 16 speak the full allotted time. We will not ask 17 questions during that period, with the possible 18 exception of asking for clarification of an acronym 19 that we aren't familiar with.
20 In addition, we have allocated at the 21 outset of this proceeding five minutes to each party 22 to address Petitioner's stay motion. We remind the 23 participants that the scope of this hearing is 24 narrowly focused upon the effects of the aging of 25 plant systems, structures, and components upon plant NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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8 1 safety and to environmental issues generally referred 2 to in 10 CFR 51.95(c). We would appreciate if you 3 would confine your arguments to those issues.
4 While members of the public are not 5 permitted to address this Board in this proceeding, 6 if, following the Board's ruling on admissibility of 7 the contentions of the Petitioner, we find that there 8 are contentions which require a hearing, the Board 9 will issue a notice of hearing that, in accordance 10 with 10 CFR 2.315(a), will afford the members of the 11 public an opportunity to provide oral limited 12 appearance statements on the issues.
13 In that event, the Board will outline in 14 the issuance the times, places, and conditions of 15 participation regarding the opportunity for oral 16 limited appearance statements.
17 Finally, while this proceeding is in 18 session, all cell phones should be turned off or 19 placed on vibrate, and any cell phone conversations 20 should be conducted outside this room.
21 With that, let's turn to Petitioner's stay 22 motion. We have allocated five minutes to each, and 23 I don't -- counsel, do you want to reserve any of your 24 five minutes for rebuttal?
25 MS. BURTON: I would like to reserve two NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1 minutes, if I may.
2 CHAIRMAN ABRAMSON: You may.
3 MS. BURTON: Thank you.
4 CHAIRMAN ABRAMSON: Excuse me. Members of 5 the press are not permitted in this area. So if 6 you're going to take photographs, please take them in 7 the back of the room.
8 MS. BURTON: Actually, this is the 9 Coalition's camera.
10 CHAIRMAN ABRAMSON: Okay.
11 MS. BURTON: Is that permissible?
12 CHAIRMAN ABRAMSON: Well, we'd prefer if 13 you're going to take photographs that you stay behind 14 this area. Behind, please.
15 PARTICIPANT: Behind what area, sir?
16 CHAIRMAN ABRAMSON: In the area that's 17 reserved for the audience, please. We do not want 18 infringement on this.
19 PARTICIPANT: Perhaps if I just leave the 20 camera where it is?
21 CHAIRMAN ABRAMSON: That will be all 22 right, if it doesn't bother any of the participants.
23 Okay?
24 PARTICIPANT: Thank you.
25 CHAIRMAN ABRAMSON: Counselor?
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10 1 MS. BURTON: Yes, thank you, Mr. Chairman.
2 The Coalition has moved for a stay of the proceedings, 3 and also I will note we e-mailed a second motion for 4 stay. I have copies here. I've distributed hard 5 copies to the parties' counsel in the case.
6 I will address initially the first motion 7 for stay. This relates to the fact that -- I believe 8 it was last Friday -- that the Coalition filed a 9 petition for review to the U.S. Court of Appeals 10 concerning the decision of the NRC Commissioners 11 rejecting the filing that was submitted on 12 February 12th of this year by the Coalition to 13 intervene in the proceedings and also to request a 14 hearing.
15 And I pointed out in the motion that there 16 is another separate appeal pending in the First 17 Circuit Court of Appeals. The Connecticut Coalition 18 Against Millstone is not a party to that. However, 19 the Attorney General of the State of Connecticut I 20 understand is as an amicus party. That appeal was 21 brought by the Citizens Awareness Network, and it 22 seeks to address the issue of the propriety of the 23 Commission's adoption of revised 10 CFR Part 2 rules.
24 In the event that that appeal is 25 successful -- and I understand from Counsel for the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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11 1 Appellant that there is a reasonable prospect that 2 argument may be scheduled as early as August or 3 September on that -- in that matter, it may very well 4 be if the Petitioner is successful that the Court of 5 Appeals will determine that the Commission should be 6 considering relicensing proceedings under the old 7 rules.
8 And if that is the case, it would 9 certainly frustrate all the parties to these 10 proceedings if we commenced them, and the proceedings 11 are underway under new rules, it may very well mean 12 that all of our time and effort here will have been 13 squandered needlessly, and the parties made to suffer 14 economic -- unfortunate economic consequences.
15 It would seem very reasonable to request 16 that the Board consider a stay through the duration of 17 the appellate process of the matter pending in the 18 First Circuit Court of Appeals as well as our own 19 petition for review to the U.S. Court of Appeals.
20 Otherwise, it would seem that there would 21 be a prospect of potential waste of resources on the 22 part of the parties, the NRC Staff, and certainly this 23 Board.
24 I will address, if I may, very briefly our 25 second motion for stay. I don't know if you -- one NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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12 1 minute left. I'll reserve that for rebuttal, then, if 2 I may.
3 CHAIRMAN ABRAMSON: She has one minute of 4 her five left or one minute of her three?
5 MS. LIN: One of her three.
6 CHAIRMAN ABRAMSON: You have one more of 7 your three.
8 MS. BURTON: Oh, okay. If I may address 9 very briefly the second motion for stay, that was 10 filed -- submitted when we became aware that the 11 county government of Suffolk County -- which is 12 located across the Long Island Sound and includes 13 Fisher's Island, which is 10 miles from here, and Plum 14 Island, which is also close, as well as a large 15 portion of Long Island, the legislative body for 16 Suffolk County voted Monday unanimously to authorize 17 an expenditure of $25,000 for that governmental agency 18 to participate in some way in these proceedings.
19 I understand that --
20 JUDGE YOUNG: Excuse me. Participate in 21 what?
22 MS. BURTON: In the proceedings involving 23 the application of Dominion to renew its licenses for 24 Units 2 and 3. I understand that in accordance with 25 the charter rules that govern that legislature it was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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13 1 not free immediately to file papers. It had to go 2 through a formal process of putting to bid the quest 3 for a law firm to represent it to even file initial 4 papers.
5 But I would think that it would be very 6 appropriate, given the high population of that county 7 -- I understand it's 1,750,000 people or so -- with 8 many -- I would consider it to be many valid concerns 9 about this relicensing process, it would seem to be 10 very reasonable for this Board to grant a stay for the 11 further reason to --
12 CHAIRMAN ABRAMSON: Time.
13 MS. BURTON: -- enable the county to 14 consider and further its participation in these 15 proceedings.
16 Thank you.
17 JUDGE YOUNG: Do we want to get a copy of 18 that before we -- all parties have copies?
19 JUDGE COLE: You're talking about 20 something different than the one that I have in front 21 of me?
22 CHAIRMAN ABRAMSON: Yes. Yes.
23 JUDGE YOUNG: Thank you.
24 CHAIRMAN ABRAMSON: It's an additional 25 stay motion. Have you provided it to the parties NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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14 1 also?
2 Is the Applicant ready?
3 MR. LEWIS: Yes, sir.
4 CHAIRMAN ABRAMSON: Do you need to reserve 5 any time?
6 MR. LEWIS: Just a minute.
7 CHAIRMAN ABRAMSON: Okay. Thank you.
8 MR. LEWIS: CCM has not provided any 9 justification for a stay. The NRC applies the 10 traditional Virginia Jobbers standards. This is 11 Virginia Petroleum Jobbers Association v. PFC, 12 259 F.2d 923. And those same standards are 13 incorporated into the NRC's rules at 10 CFR 2.342.
14 They include a showing of irreparable 15 injury and likelihood of success on the merits of 16 those two factors are clearly the most important.
17 Here the likelihood of success on the merits is not --
18 the Commission has already ruled on the arguments that 19 CCM is advancing, and they are the law of the case.
20 So as far as this Board's determination of 21 what is the likelihood that CCM will prevail in its 22 interlocutory petition for review before the Court of 23 Appeals, I think the assumption has to be zero 24 likelihood of success on the merits based on the 25 Commission's explicit rulings in this case.
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15 1 As far as irreparable injury -- again, the 2 answer is none. There is none. CCM is, in effect, 3 seeking some extra procedures that it thinks it would 4 be entitled to under the old rules if there were 5 remand, and I believe that, again, the likelihood of 6 that is slim to none. Those procedures could clearly 7 be offered to CCM.
8 In addition, of course, the period of 9 extended operation won't occur for another 20 years.
10 Clearly, there is nothing going to happen in the short 11 run that's going to irreparably injure CCM. So for 12 all those reasons, there is absolutely no 13 justification whatsoever for a stay.
14 In addition, the old rules and new rules 15 have no bearing whatsoever on the admissibility of 16 contentions. The standards have not changed. It 17 would certainly be inappropriate to delay ruling on 18 CCM's contentions. In fact, if CCM's contentions were 19 found inadmissible under the standards, the same 20 standards under either set of rules, their procedural 21 squabble would just be moot. I mean, it would have no 22 bearing at all on the outcome of this proceeding.
23 Quickly, on the second motion, I've only 24 skimmed it. But as far as I'm aware, Ms. Burton isn't 25 representing the County of Suffolk. Whether the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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16 1 County of Suffolk decides -- whether the County of 2 Suffolk ever decides to intervene or file an amicus 3 brief is up to them. They haven't done either, and I 4 see no basis to stay this proceeding and stay action 5 on CCM's hearing requested based on what some other 6 entity may or may not do.
7 Again, clearly, there's been no showing of 8 any justification for a stay under the Virginia 9 Jobbers factors.
10 CHAIRMAN ABRAMSON: Staff?
11 MS. MARCO: Thank you. CAM filed its 12 motion to stay the Licensing Board proceeding pending 13 an adjudication on appeal to the Second Circuit.
14 While styled as a motion for a stay of a proceeding, 15 because the requests seeks to prospectively stay this 16 proceeding pending the outcome of the appeal, this 17 filing is more appropriately considered to be a motion 18 to hold the proceeding in abeyance.
19 The Staff believes that, notwithstanding 20 the characterization of the filing, the standards to 21 be applied are those that are applicable to stay 22 requests filed pursuant to Section 2.342, which was 23 formerly Section 2.788, of the Commission's 24 regulations.
25 We refer to the Yankee Atomic case, that's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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17 1 CLI-94-3, 39 NRC 95, page 100, note 5, which states 2 that all requests for emergency relief should address 3 these criteria. These criteria are: 1) whether the 4 proponent has made a strong showing that it is likely 5 to prevail on the merits, 2) whether the party will be 6 irreparably injured unless a stay is granted; 7 3) whether the granting of a stay would harm other 8 parties; and, finally, where the public interest lies.
9 These four factors are traditionally 10 applied in judicial proceedings. They are, as counsel 11 had just stated, from the Virginia Petroleum Jobbers 12 case. And the proponent of the stay request has the 13 burden of demonstrating these factors are met.
14 Irreparable injury is the most important 15 factor in determining the need for a stay. CAM refers 16 to the prospect of duplicative administrative 17 proceedings, contrary results, which could cost -- be 18 wasteful, costly, and be inefficient to all parties.
19 These concerns, however, fail to establish irreparable 20 injury. The Commission has held that the incurrence 21 of litigation expenses does not constitute irreparable 22 injury in the context of the stay decision.
23 And, in addition, in ruling on a license 24 renewal request to hold a proceeding in abeyance, the 25 Commission declared that they have repeatedly rejected NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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18 1 such resource-related arguments in prior proceedings.
2 That's the Catawba/McGuire case, CLI-01-27, 54 NRC 3 385, at page 391, 2001 case. And CAM's motion fails 4 to allege, let alone demonstrate, any irreparable 5 injury.
6 Now, with respect to the second criterion 7 -- this is the probability of success on the merits --
8 it is clear that Commission juris prudence says that 9 absent a showing of irreparable injury only virtual 10 certainty of success on the merits is required. And 11 in the appeal CAM's request does not rise to that 12 level.
13 CAM raises the same arguments in its stay 14 request made twice before the Commission and twice 15 rejected by the Commission. CAM states that it 16 intends to argue before the Court of Appeals that an 17 examination of the old and new rules for Part 2, and 18 a review of the pertinent material on the NRC's 19 website, that the motion to vacate should have been 20 granted.
21 In particular, CAM raises issues 22 concerning NRC's guidance on its website regarding 23 whether the old or new rules should apply. The 24 Commissioner, however, in CLI-04-12, stated and 25 provided a reasoned basis for its determination that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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19 1 scenario number five did not apply.
2 Petitioner has not proffered any new 3 information which would controvert that conclusion or 4 demonstrate any error that would result in a reversal 5 on appeal.
6 In addition, CAM argues that the 7 Commission erred in not permitting limited discovery 8 on the issue of whether NRC deliberately withheld 9 publication of the March 12, 2004, notice for hearing 10 until after the new Part 2 took effect.
11 The Commission held that these were 12 unsupported innuendo and failed to demonstrate that 13 the NRC's review was in any way improper. And CAM 14 still fails to provide support for these claims.
15 Accordingly, it has not demonstrated a likelihood that 16 it would prevail on the merits.
17 So if the proponent fails to demonstrate 18 that it has met its burden on the first two factors, 19 it is not necessary to give a lot of consideration to 20 the other factors. But we would just state, with 21 respect to the fourth factor where the public interest 22 lies, the public interest does lie in the timely 23 completion of these adjudicatory proceedings.
24 Thank you.
25 CHAIRMAN ABRAMSON: Thank you, counsel.
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20 1 Rebuttal?
2 MS. BURTON: Yes. I'd like to begin by 3 addressing the important element of the public 4 interest, which I think weighs so strongly in favor of 5 a stay that it certainly very easily counterbalances 6 any objection that has been raised by the NRC or 7 Dominion.
8 And that is that these proceedings have 9 potential to effect millions of people. I would guess 10 probably in excess of five million people certainly 11 live within 50 miles of Millstone, and probably very 12 many more. And there is a very great deal of concern 13 that has been expressed, both by the Connecticut 14 Coalition Against Millstone, the Suffolk County 15 Legislature, as well as Attorneys General of I believe 16 five states, which have joined as amicus curiae 17 parties to the First Circuit appeal, which is now 18 pending.
19 Obviously, the issue that is raised in the 20 First Circuit is one that has sweeping potential for 21 all of the relicensing proceedings that are underway 22 by the NRC. And I believe that in terms of public 23 interest benefit the public interest would be very 24 well served, and neither the Staff nor the Applicant 25 has demonstrated any harm to either if the stay is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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21 1 granted.
2 It was pointed out that the application, 3 if granted, will not take effect for a long period of 4 time. That is correct, but -- and that also helps to 5 establish how there can't be any demonstration of harm 6 if there is a delay, and we're speaking of a delay of 7 only a very few months in these proceedings.
8 So, therefore, we request that the Board 9 give good consideration to our motions.
10 MR. LEWIS: No further argument.
11 CHAIRMAN ABRAMSON: Anything further from 12 either Staff or --
13 MS. MARCO: I have one minute, correct?
14 CHAIRMAN ABRAMSON: You may.
15 MS. MARCO: I'd like to address the second 16 motion.
17 CHAIRMAN ABRAMSON: Please.
18 MS. MARCO: With respect to the potential 19 for a new Petitioner to come into the proceeding, the 20 Staff notes that it is typical Commission juris 21 prudence that a new Petitioner takes the proceeding as 22 they find it. So this proceeding should be allowed to 23 go on, and any newcomer would have to adapt to where 24 they stand at that time, should they be allowed 25 intervention.
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22 1 That's all the Staff has.
2 MS. BURTON: May I just briefly --
3 CHAIRMAN ABRAMSON: Yes, please.
4 MS. BURTON: -- respond to that? It is, 5 of course, a possibility that this Board might 6 determine to dismiss the efforts of the Connecticut 7 Coalition to participate in these proceedings.
8 Should that occur, then the County of 9 Suffolk of the State of New York will be out of luck, 10 because there will be no proceedings to participate 11 in, and there will be nearly two million people at a 12 loss for the exercise of rights that their elected 13 officials have chosen to pursue for them. And that 14 would be I think a very, very unwise and unjustified 15 turn of events that should be avoided.
16 We're not asking for a lengthy, lengthy 17 stay. We're simply asking for a reasonable stay based 18 on the pendency of legitimate good faith proceedings 19 before the Courts of Appeals of this country.
20 Thank you.
21 CHAIRMAN ABRAMSON: Any questions from the 22 Panel?
23 JUDGE YOUNG: Yes, I have a couple. With 24 regard to Suffolk County, assuming that there is no 25 way that at this point they could meet the original NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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23 1 filing requirements under either the old rules or the 2 new rules. Correct?
3 MS. BURTON: I am not so sure about that, 4 because I believe that the -- this Board has 5 discretion to permit parties to join proceedings 6 within its discretion, and we appealed to that 7 discretion.
8 I'm sure that the -- I don't represent the 9 County of Suffolk in any way, although I have 10 previously represented the Long Island Coalition 11 Against Millstone, which was found to have established 12 standing in other proceedings concerning Millstone.
13 JUDGE YOUNG: What I'm really trying to 14 direct you to is the timing issue. And if they could 15 not meet the original timing requirements, do you have 16 any reason to believe that they could meet the late 17 filing criteria? Since you're aware of it, do you 18 have any other knowledge about that? If you don't, 19 just say no.
20 MS. BURTON: My understanding is that this 21 action by the legislature of the County of Suffolk was 22 almost unprecedented. And it was -- it came about as 23 a result of a strong feeling that something needed to 24 be done very, very quickly, and that the county will 25 move with all due haste, as it has attempted to do, to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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24 1 participate in these proceedings.
2 JUDGE YOUNG: But what I was trying to get 3 you to address is the late filing criteria, the timing 4 issue specifically. If you don't have any information 5 on that, then that's fine. I just wanted to know 6 whether you did.
7 MS. BURTON: The only information that I 8 have that might be helpful is my understanding that 9 the county is very interested in participating in a 10 substantive way in this matter.
11 JUDGE YOUNG: Okay.
12 MS. BURTON: And that if this body were to 13 grant a stay and set a deadline for participation, I'm 14 sure that that would get things moving very quickly 15 over -- across the Sound.
16 JUDGE YOUNG: I have one more question.
17 Have you, in your petition to the Court of Appeals, or 18 do you know whether the Petitioners in any of the 19 other cases involving the new rules, have asked for 20 any stays?
21 MS. BURTON: With regard to the First 22 Circuit case, I'm not aware of any motions for stay.
23 With regard to our own petition, I am familiar with 24 the expectations of the Second Circuit with regard to 25 motions for stay. That circuit expects parties to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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25 1 pursue whatever administrative remedies may be 2 available with respect to stays prior to asking for a 3 court stay.
4 So I would anticipate that if we are 5 unsuccessful in obtaining a stay here that our next 6 step would be to possibly ask the Commission to rule 7 in our favor. And should we be unsuccessful in those 8 two steps, then we would have the opportunity to go to 9 the Court of Appeals. But it would have been 10 premature to ask for a stay because I believe the 11 court would not have entertained it to our advantage.
12 JUDGE YOUNG: I do have one more. You 13 mentioned the lack of harm of doing this later based 14 on the fact that the -- any new license, if granted, 15 would take effect at some time in the future. By the 16 same token, there would not be any harm in terms of 17 anything going into effect.
18 If, for example, the Court of Appeals were 19 to grant a stay or to strike down the new rules, there 20 would be time to conduct a new proceeding at that 21 point prior to any new license going into effect.
22 Wouldn't that be correct?
23 MS. BURTON: That may very well be.
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26 1 or before administrative agencies, because it so 2 clearly suggests that time is being wasted and
-1 squandered, and, therefore, I think looks to agencies 4 and courts to exercise considered discretion in 5 avoiding those kinds of situations. And I think this 6 -- these circumstances present just such a case for I 7 think proper exercise of that kind of discretion.
8 JUDGE YOUNG: Thank you. That's all I 9 have.
10 CHAIRMAN ABRAMSON: Okay.
11 (Pause.)
12 The motion for a stay as to these 13 particular prehearing conference proceedings is 14 denied. We will take under advisement and issue a 15 ruling on the general -- more general issue of the 16 motion for a stay, and issue that when we issue our 17 ruling on the contentions which are at issue today.
18 So with that, let's proceed with the first 19 contention. And we're going to start with 20 Contention 1 as to which we have allocated 10 minutes 21 to CCAM, 10 minutes to the Licensee, and five minutes 22 to the Staff.
23 JUDGE YOUNG: I just wanted to say, 24 assuming we ruled against you on the stay, then we 25 would issue that ruling with our ruling on the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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27 1 contentions. If we ruled in favor of you, then 2 obviously there would not be any ruling on the 3 contentions at this point.
4 CHAIRMAN ABRAMSON: Counsel, are you 5 prepared to start on your first contention?
6 MS. BURTON: Yes, I am.
7 CHAIRMAN ABRAMSON: And how much of your 8 10 minutes would you like to reserve for --
9 MS. BURTON: I would like to reserve five 10 minutes.
11 CHAIRMAN ABRAMSON: Five minutes for 12 rebuttal. Okay. So you'll have five minutes. Ms.
13 Lin?
14 And, Dominion, do you want to reserve any 15 time for rebuttal? Do you want to wait until we hear 16 what they --
17 MR. LEWIS: I'd like to.
18 CHAIRMAN ABRAMSON: Let's wait. Okay.
19 Commence.
20 MS. BURTON: Thank you. I would like to 21 commence by, first of all, apologizing which I meant 22 to do a moment ago for failing to file a notice of 23 appearance. In strict compliance with the orders I 24 will endeavor to do that my first opportunity.
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28 1 is that the Coalition alleges that the operations of 2 Millstone Units 2 and 3 have caused death, disease, 3 biological and generic harm, and human suffering on a 4 vast scale.
5 I will preface my remarks by noting -- and 6 I hope not to the great chagrin of the Board -- that 7 I have also filed by e-mail and served the Staff and 8 Dominion with a motion for leave to supplement our 9 petition with the declaration of Michael Steinberg, 10 who is an investigative reporter, a local author, of 11 Millstone and me.
12 And I have copies of that, if I may 13 present those to the Board.
14 CHAIRMAN ABRAMSON: We've received those.
15 Thank you.
16 MS. BURTON: You have. Thank you.
17 In my discussion, I hope I will not be out 18 of line if I draw upon Mr. Steinberg's declaration and 19 matters that he has referred to in his papers. This 20 contention is the first contention because the 21 Coalition considers it to be of the most -- let me 22 just start that again. Thank you.
23 The Connecticut Coalition Against 24 Millstone has raised health issues as its first 25 contention, because it believes that this issue is the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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29 1 most important issue facing the community of 2 southeastern Connecticut, and that the facts that the 3 Commission -- Coalition, pardon me, is prepared to 4 prove with respect to this issue are -- really go to 5 the heart of these proceedings.
6 We do intend to prove the fact alleged and 7 to rely on documents which include official documents 8 that are maintained both by the State of Connecticut 9 and by other state agencies, and they include the 10 Connecticut Tumor Registry, which has recently -- as 11 recently as January 2003 -- released a report in which 12 it has found that cancers affecting women are at their 13 highest level in this very area where we are today in 14 New London County over every other area in the state.
15 And with regard to cancers affecting men, this area is 16 only second to Tolland County in the State of 17 Connecticut.
18 We rely on other information that others 19 have prepared based on researches into available 20 epidemiology as well as anecdotal data, suggesting 21 that since Millstone has been in operation since 1970 22 there have been conservatively estimated 2,500 excess 23 instances of cancers, at least 800 of those fatal.
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30 1 Millstone, and most particularly many of these cancers 2 we know are medically associated with the kinds of 3 radioactive releases that Millstone -- that Dominion 4 reports in its filings to the NRC and also to state 5 agencies.
6 In fact, those kinds of diseases, such as 7 breast cancer, thyroid cancer, leukemia -- and there's 8 a high incidence of childhood leukemia in this area --
9 lymphomas, these are all diseases that were recognized 10 by Congress when it passed the Radiation Exposure 11 Compensation Act as being compensable diseases to 12 those individuals who have been identified as 13 suffering from cancer downwind from atomic blasts 14 carried out by the Defense Department in Nevada and 15 elsewhere.
16 In other words, the same ionizing 17 radiation which Congress has determined is a 18 compensable injury in the west we maintain is the same 19 -- bears the same causative relation to what we 20 believe is an epidemic of cancer in this area.
21 We are familiar with the criticism of the 22 Staff and Dominion with regard to this contention, but 23 we believe that the Board needs to consider most of 24 all what is meant by the term "safe" as it goes 25 through this process of relicensing.
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31 1 Safe is a relative term, and we point out 2 the fact that the European Committee on Radiation Risk 3 released a very important study in the year 2003 in 4 which it took issue with the standards then prevailing 5 in this country and elsewhere, and concluded that 6 radiation standards are 100 to 1,000 times higher than 7 they should be. And it is our belief that if the 8 standard were reduced to that level recommended by the 9 European Committee on Radiation Risk that the health 10 of the community would be substantially protected.
11 We believe that this is an issue that the 12 Board needs to address and confront in relicensing 13 proceedings as we look to a period of time as far 14 ahead as the year 2045. And I must say that I don't 15 think very many of us now in the room today will even 16 be alive at that time. We're looking here to protect 17 the health and safety of the public and especially our 18 children, who are more vulnerable to the radiation 19 effects of nuclear power than others.
20 Thank you. I'll reserve my time for 21 rebuttal.
22 CHAIRMAN ABRAMSON: Dominion?
23 MR. LEWIS: Yes. Let me speak first to 24 the motion for leave to supplement the petition.
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32 1 start, do you want to reserve any time for rebuttal?
2 MR. LEWIS: One minute.
3 CHAIRMAN ABRAMSON: Okay. Thank you.
4 MR. LEWIS: That motion should be 5 rejected. This supplement is clearly untimely. It's 6 an amendment to the original contention, and under 7 2.309(f)(2) a contention may only be amended with the 8 leave of the presiding officer after the original 9 deadline, upon a showing that there is new 10 information, and that the submission is timely based 11 on that new information.
12 As far as I can determine, nothing in the 13 declaration is new. In fact, Mr. Steinberg spoke in 14 a public meeting on Millstone on February 17th, made 15 the same general assertions. Ms. Burton was at that 16 meeting, so she has known about Mr. Steinberg and his 17 book and his assertions since February 17th. There's 18 absolutely no excuse whatsoever for this eleventh hour 19 supplement, or maybe it's twelfth hour supplement, or 20 12:30 -- I don't know. It's so late it's 21 unimaginable.
22 Even if you were to extend it, though, 23 this does not establish a basis for their contention.
24 Mr. Steinberg is an author. There is no showing that 25 he has any expertise, and, therefore, this does not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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33 1 qualify as a reference to any expert opinion.
2 In addition, even now, having handed this 3 to us this morning, the attachments, which are I guess 4 meant to be the basis part here -- there is some sort 5 of summary, I guess prepared by Mr. Steinberg. But, 6 you know, the documents aren't there, and so there is 7 -- again, there is no basis for her assertions.
8 With respect to Contention 1 itself, 9 Contention 1 is outside the scope of the proceeding as 10 explained in our pleadings, and I'm not going to 11 belabor that. I will add, however, that in her reply 12 CCM referred to the provision in 10 CFR 54.4 on the 13 scope of equipment that has to be evaluated for aging 14 and pointed out that it covers safety-related systems, 15 structures, and components.
16 All that provision does is establish what 17 is the scope of equipment that has to be evaluated for 18 aging. It does not make safety a general license 19 renewal issue. That doesn't mean that radiological 20 impacts are something that the Commission ignores.
21 Radiological releases are governed by current day 22 regulations. And they are inspected, and if there is 23 an issue with radiological releases, it should be 24 looked at any time it occurs in the current license 25 term.
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34 1 The Commission has made it very clear that 2 license renewal focuses on aging, because it has other 3 mechanisms to look at the everyday-to-day issues 4 including compliance with the NRC's regulations and 5 guidance on what can be released from the plant.
6 CHAIRMAN ABRAMSON: Thank you, counsel.
7 Staff?
8 MS. MARCO: Yes. I'll reserve maybe 30 9 seconds of my five minutes.
10 The Staff opposes the admission of 11 Contention 1, because, as we stated in our pleading, 12 it fails to satisfy the Commission's regulatory 13 requirements for the admission of contentions. The 14 contention is outside of the scope of this licensing 15 renewal proceeding, and it does not set forth a 16 specific factual or legal basis as is required by the 17 Commission's regulation.
18 The Staff also opposes the most recent 19 motion for leave to supplement the petition to 20 intervene with declaration of Michael Steinberg on the 21 basis that there is absolutely no showing of good 22 cause for the late submittal of this supplement.
23 The scope of the license renewal is to 24 focus on the potential detrimental effects of aging 25 that are not routinely addressed by the ongoing NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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35 1 regulatory oversight programs. Nowhere in this 2 contention does CAM raise any issue related to the 3 potential detrimental effects of aging. And, 4 therefore, this contention falls outside of licensing 5 renewal.
6 CAM also fails to set forth this detailed 7 -- necessary detailed fact-based showing that a 8 genuine or material dispute of law or fact exists.
9 None of the alleged facts stated in the contention are 10 supported by any references to specific sources, 11 expert opinions, or documents on which the contention 12 is based.
13 And just perusing the latest submittal, 14 Mr. Steinberg is a journalist and does not appear to 15 have any specific scientific or technical background 16 related to the matters that he has proffered to 17 demonstrate an expertise on. Therefore, this 18 contention is not admissible.
19 The Staff further notes that CAM did not 20 amend this contention as part of its June 14th amended 21 petition. In its June 16th reply, the Petitioner 22 invokes the Commission's regulation at 10 CFR 23 Section 54.4(1)(a)(2) for the proposition that the 24 applicant must demonstrate that during aging in the 25 licensing renewal period it will be able to maintain NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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36 1 the capability to shut down the reactor and maintain 2 the shutdown in -- maintain it in a safe shutdown 3 condition.
4 According to the Petitioner, a safe 5 shutdown condition contemplates that releases will not 6 occur. CAM's characterization of the regulatory 7 requirements is not accurate. The regulation does not 8 require the Applicant, as part of its license renewal, 9 to show that during aging it will be able to maintain 10 the safe shutdown. Rather, this regulation identifies 11 the plant systems, structures, and components that are 12 subject to an aging management review as is required 13 by 10 CFR Section 51.21(a)(1).
14 CAM does not identify any system, 15 structure, or component that was overlooked, and does 16 not identify any deficiency in the Applicant's 17 demonstration that with respect to the systems, 18 structures, or components within the rule, the effect 19 of aging will not be adequately managed. Therefore, 20 CAM's reliance on Section 54.4(a)(1)(2) is overly 21 broad.
22 That's it for the Staff. Thank you.
23 MR. LEWIS: Judge Abramson?
24 CHAIRMAN ABRAMSON: Yes.
25 MR. LEWIS: One correction. There were NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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37 1 two meetings, public meetings. I said that Mr.
2 Steinberg was at I think the initial one on 3 February 17th. That's the danger of doing things on 4 the fly. It may be that Mr. Steinberg spoke at the 5 environmental scoping meeting, but it was still at 6 least a month ago.
7 I talked to my co-counsel, and we are now 8 debating which meeting he was at. But it was -- it's 9 been a while back.
10 CHAIRMAN ABRAMSON: Thanks, counsel.
11 Ms. Burton?
12 MS. BURTON: Yes. I believe Mr. Steinberg 13 did make statements at the May 18th meeting, not the 14 February meeting.
15 CHAIRMAN ABRAMSON: Okay.
16 MS. BURTON: In response to these 17 comments, I may ask rhetorically, concerning the 18 meaning of the word "safe" -- I thought that "safe" 19 meant that people weren't getting hurt.
20 Well, is it safe if 2,500 people get hurt, 21 or if 800 people die, or if four children in the 22 booming tourist community of Mystic suffer from 23 leukemia in their early years? And some children in 24 the area die very young, even in infancy?
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38 1 would not happen. And, frankly, it's a little bit 2 shocking to hear the NRC say here today that, nBy 3 'safe,' we don't mean that the public won't be killed 4 by what we do." I think that there is a 5 misconstruction of the use of the term "safe" and 6 "safety" in these regulations.
7 I have some reliance on a study that a 8 nuclear engineer of eminence, David Lochbaum, recently 9 published for the Union of Concerned Scientists, "U.S.
10 Nuclear Plants in the 21st Century." That report 11 involves a discussion of the thousands of unexpected 12 safety problems tPat have arisen throughout the 13 nuclear industry in this country. And he points out 14 that the risks for catastrophe change as nuclear 15 reactors age just -- much like the risks for death by 16 accident and illness change as people get older.
17 Millstone is in the category now of mid-18 life to its wearing out phase, and, therefore, there 19 is, it seems, more of a need to be sure that if 20 problems are to occur that the plant be able to shut 21 down in a safe way. We believe that that means that 22 the public will not be exposed to risks of radiation 23 releases which cause harm.
24 We have spent some time reviewing this 25 application, and we have not seen a demonstration by NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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39 1 Dominion that it has taken the care to assess this 2 issue at all. And we would stand corrected if they 3 can point out to us where they have done that, but we 4 do not believe that that has occurred. And it doesn't 5 seem here that they believe that they need to do that.
6 We don't believe that this application 7 shows a care and consideration to doing those things 8 to the plant that would make releases both accidental 9 and routine that will cause harm to the workforce and 10 the public not occur during the period of time when 11 they are most likely to occur, at least according to 12 David Lochbaum, because during the aging, according to 13 his bathtub curve, the most problems occurs with the 14 reactors in their infancy and in their aging period.
15 And we would tend to agree with that, and 16 so we believe that the application should have set 17 forth how it was going to assure that in routine 18 operation and in emergency operation Dominion would be 19 able to maintain, for instance, safe shutdown without 20 releases of radiation that will harm the public.
21 We know that these days still Millstone is 22 shutting down in unplanned outages at a high rate, and 23 recently has acknowledged releasing radiation into the 24 environment. Even very, very, very tiny doses of 25 radiation can cause fatalities.
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40 1 And I rely on this report I referenced 2 before -- the European Committee on Radiation Risk.
3 It's very important, we believe, in these proceedings 4 that there be a demonstration, that there be evidence 5 and proof that this will not occur. We have a 6 difference as to the material facts here that are 7 significantly in dispute, and we believe that we have 8 proffered a proper and compelling contention in 9 number 1.
10 Thank you.
11 MR. LEWIS: Nothing further.
12 CHAIRMAN ABRAMSON: Anything further from 13 the Staff?
14 MS. MARCO: Yes. I would like to state 15 that the U.S. Nuclear Regulatory Commission is very 16 concerned about safety. We believe that these matters 17 are -- that have been addressed in this contention are 18 part of our ongoing regulatory process. And just 19 because it is outside of the limited scope of this 20 licensing renewal proceeding does not mean that we do 21 not address it and take care of it.
22 And that's what I'd like to say. Thank 23 you.
24 CHAIRMAN ABRAMSON: Counsel, do you wish 25 to say anything in response to the Staff's comment?
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41 1 MS. BURTON: No, I do not.
2 CHAIRMAN ABRAMSON: Okay. Thank you.
3 Any questions from the Panel?
4 JUDGE YOUNG: Should I start?
5 CHAIRMAN ABRAMSON: Sure.
6 JUDGE YOUNG: Ms. Burton, you've raised 7 quite a number of allegations that if true would be 8 extremely significant. There is no doubt of the 9 significance of the issues that you raise.
10 I guess when I read your filings, and I 11 hear what you say, what I think about is sort of 12 matters of basic legal practice of providing authority 13 for statements, some indication of the source of 14 information that you put forth. You are aware, I 15 know, that the -- even under the old rules the 16 Commission has a heightened pleading requirement, and 17 you're also aware that pleadings -- that contentions 18 are required to be reasonably specific.
19 When I look at issues of what is 20 reasonably specific, and what support you've provided, 21 I ask myself: what information would have been 22 available? What would have been reasonable to supply?
23 And I ask: how do you know X, Y, or Z?
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42 1 from the public various things -- that men, women, and 2 children would die or suffer disease, and so forth."
3 You mentioned the European report. Now -- and the 4 Lochbaum material now.
5 Could you tell me, first of all -- I could 6 go through these individually, but I guess as a 7 general matter -- and I may have more specific 8 questions, but as a general matter, why, for example, 9 didn't you provide the information from Mr. Steinberg 10 earlier? Or from Mr. Lochbaum?
11 You talk about numbers of people getting 12 hurt or getting cancer or dying. You talk about a 13 tumor registry, Millstone recently acknowledging 14 releases. And the question that keeps coming to my 15 mind is: how do you know these things? And 16 especially given the Commission's pleading 17 requirements, why haven't you given us more 18 information about these things at some point, since 19 February 12th and within the timeframe for contentions 20 under either the old or new rules?
21 Because it sort of puts us I think in a 22 difficult position to be given a number of very 23 serious allegations, but not -- not a whole lot to 24 indicate to us: how do you know this? Where did it 25 come from? What's the source for it? And what would NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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43 1 seem to have been reasonable to provide earlier?
2 Now, that's the general question. And 3 I've gone on at some length, so that you can fully 4 understand what my concerns are, because I think we 5 want you to understand that we recognize the 6 seriousness of the issues. But I'd like to hear from 7 you on why you haven't provided more and more earlier 8 on your sources and authority and how you -- for how 9 you know what it is you're alleging.
10 MS. BURTON: Yes, I will try to respond to 11 those very thoughtful comments.
12 First of all, all of the information that 13 I have relied on today, and in the filings that we 14 have presented, are in the public domain. For 15 instance, Mr. Steinberg's --
16 JUDGE YOUNG: But -- but -- I'm going to 17 interrupt you now. Now I'm going to interrupt you, 18 because I'm wanting to get something -- answer my 19 concerns.
20 When you file a pleading with us, and you 21 make allegations having to do with serious things like 22 safety and allegations of withholding information, you 23 don't expect that we would go out and research the 24 public domain for ourselves when you're making the 25 allegations, and so presumably you would be able to at NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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44 1 least say where in the public domain. How do you know 2 it?
3 MS. BURTON: Well, with all respect, my 4 understanding of the hearing process is that at a 5 hearing a party is burdened to come forward with proof 6 to establish contentions.
7 JUDGE YOUNG: Right. But what I'm trying 8 to get you to focus on is, one, the NRC's contention 9 requirements. And then, two, I think also totally 10 apart from that, just a matter of general legal 11 practice, the general professional expectation that 12 you will provide authority for statements and some 13 indication of the basis for how you know a certain 14 thing.
15 And you refer to quite a lot of things 16 now, or have done so lately. But even today the 17 reference to the Lochbaum material and the tumor 18 registry, just to give two examples -- have we been 19 provided that before today?
20 MS. BURTON: Not in these proceedings by 21 the Coalition 22 JUDGE YOUNG: And why didn't you provide 23 those earlier? Because obviously if you're raising 24 issues of significance and seriousness, such as those 25 you're raising, they should be addressed in such a way NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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45 1 that a body like this Board can address them 2 appropriately.
3 And without the information, you put not 4 only the Board but the other parties in a difficult 5 position of not being able to respond. Do you see 6 what I'm saying?
7 MS. BURTON: I do hear what you're saying, 8 Judge Young. But I will point out that in this 9 particular proceeding the ordinary course has been 10 derailed somewhat- by virtue of the fact that the 11 petition that was filed on February 12th under the old 12 rules was rejected by the Commission, and that led to 13 a focus on the part of the Coalition on addressing 14 what it believed was true error on the part of the 15 Secretary and the Commission in rejecting it, leading 16 to our --
17 JUDGE YOUNG: I understand. I understand 18 that.
19 MS. BURTON: -- going to an appellate 20 process.
21 JUDGE YOUNG: I understand that, and I --
22 I don't want to get off onto that. At the same time 23 as that was going on, you knew that another deadline 24 was coming up. And, quite frankly, when I got the 25 materials in this case I looked to see, is there NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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46 1 something else out there? Because you had a 2 subsequent deadline after February 12th that if you 3 had -- that -- it seems like a couple of months passed 4 at least. I was wondering why you didn't provide 5 anything new to the February 12th document.
6 But I think what we got prior to receiving 7 your amended petition was the same thing that you had 8 filed on February 12th. And so sometime during that 9 interim it would have seemed reasonable to beef up 10 your petition so to speak, and thereby to address the 11 kind of concerns I'm presenting to you.
12 And what I'd really like you to focus your 13 response on is those concerns, because that's the real 14 crux of the issue at this stage.
15 CHAIRMAN ABRAMSON: If I may, Judge Young, 16 just interject here. The Commission's proceeding 17 rules are quite clear about what must be provided in 18 contentions.
19 And to cut through the softness of Judge 20 Young's question,, our rules require very specific 21 materials to be provided. They don't seem to have 22 been provided initially. They don't seem to have been 123 provided in late-filed supplements. The late-filed 24 supplement had no justification.
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47 1 justification for not complying with the Commission's 2 rules and regulations?
3 MS. BURTON: In answer to that, with all 4 respect, when the original petition was filed, which 5 I filed -- I filed it in a manner that I believed, and 6 continue to believe, is fully in accord with the 7 standards and the requirements of the Code of Federal 8 Regulations.
9 It may be that the contentions may appear 10 to be rather general and rather broad, but that 11 doesn't mean that they are legally defective. It may 12 be very appropriate to raise a safety issue with 13 respect to an entire application with regard to all of 14 the safety systems of a nuclear powerplant if there 15 are deficiencies that are systemic to the entire 16 operation.
17 JUDGE YOUNG: Let me --
18 MS. BURTON: That doesn't --
19 JUDGE YOUNG: Let me interrupt you, okay, 20 because I don't -- I think we understand that you have 21 very significant concerns about safety. But just to 22 give you an example, looking at the February 12th 23 petition, and then also looking at your amended 24 petition, there is a statement on page 3 at the top.
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48 1 cancer clusters have been identified in many areas 2 close to Millstone. The cancers are scientifically 3 and medically linked to the routine unplanned 4 emissions of Millstone."
5 Now, just reading that, that is an 6 extremely serious statement. I would assume that the 7 lawyer writing that would know -- would have had to 8 have obtained the information about the cancer 9 clusters from somewhere. And just as a matter of 10 general legal practice, I would wonder, why hasn't 11 this lawyer provided me with the source of that 12 information? A citation to the source of the 13 information? Just like you cite to law.
14 And the information that the cancers are 15 scientifically and medically linked to the routine and 16 unplanned emissions -- I would expect that to say that 17 you would have to have some source of knowledge for 18 that. And I wonder, why haven't you provided that to 19 us? And I think if the standard is reasonable 20 specificity, it would seem to be reasonable that if 21 you know the information you would be able to tell us 22 at -- where you got the information from, and give us 23 some document that provides some support for your 24 allegation.
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49 1 saying, but I also hear you saying that the statements 2 that are made are very specific.
3 JUDGE YOUNG: But what I'm asking you to 4 focus on is: why couldn't you give us any -- anything 5 whatsoever, anything, to support that? Whether it be 6 the statement of an expert, a document, a report, 7 anything. Surely you had it. If you're saying this, 8 surely you had some basis.
9 MS. BURTON: There is a complete and 10 overwhelming basis for every statement that is set 11 forth.
12 JUDGE YOUNG: But it doesn't appear -- it 13 doesn't appear on the face of the document. And 14 that's sort of, one, required by the rules; and, two, 15 a matter of basic legal practice that you need to give 16 authority for things that you say.
17 MS. BURTON: I believe that in terms of 18 formulating contentions, we are, again, fully in 19 compliance with these standards. We have been very 20 specific, and we are prepared in these proceedings to 21 establish beyond any doubt the truth of every 22 allegation that we have submitted.
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50 1 include the same contentions and --
2 JUDGE YOUNG: Let me interrupt you. Let 3 me interrupt you again.
4 MS. BURTON: -- back it up with all of our 5 references.
6 JUDGE YOUNG: Let me interrupt you.
7 MS. BURTON: Some of which we thought --
8 JUDGE YOUNG: Ms. Burton?
9 MS. BURTON: -- should be self-evident.
10 JUDGE YOUNG: Ms. Burton, let me interrupt 11 you. I understand you're very concerned about this.
12 I'm going to sort of wrap up my questioning at this 13 point, but what I'd like to ask you to close on is, 14 you're offering to provide all of this. Why didn't 15 you provide it earlier? Why didn't you provide it at 16 some point, either with the February 12th petition or 17 on the deadline under the new rules? At some point, 18 why didn't you provide all of this information that 19 you say you have?
20 MS. BURTON: We are here today to provide 21 all of this information.
22 JUDGE YOUNG: No. I'm -- no, you're not 23 answering my question.
24 MS. BURTON: It didn't --
25 JUDGE YOUNG: Ms. Burton?
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51 1 MS. BURTON: Yes.
2 JUDGE YOUNG: Ms. Burton, I understand 3 you're very concerned. I understand you're here to 4 provide it. I want you to just answer the question:
5 why didn't you provide it earlier?
6 MS. BURTON: My answer to that is that I 7 believe that the petition that was filed initially, 8 and one that was amended with a few additional 9 allegations in them, fully complied with the 10 requirements of the CFR -- are fully understandable.
11 It may be that this body and the parties are not --
12 are resistant to some of the concepts that we are 13 setting forth as allegations, and to the Coalition 14 some of these things seem to be fairly self-evident.
15 JUDGE YOUNG: Ms. Burton, I'm going to 16 interrupt you, and I'm going to say one last thing 17 here. I don't think that this Board is -- and I'm 18 certainly not resistant to any of the issues that 19 you're raising. But as a lawyer, I would expect that 20 you would provide some support for them as a matter of 21 basic legal practice.
22 And to raise such significant concerns, 23 and not provide the support, and then fall back on an 24 argument that there is resistance to the issues, I 25 think really evades the question that I'm asking you.
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52 1 So I'm going to give you one more chance, 2 and then that's going to be the end of my questioning 3 at this point. We'll certainly hear you out on all of 4 the contentions, but I -- I really would like to get 5 a direct answer.
6 MS. BURTON: Let me try this way. First 7 of all, we are very willing to provide you with an 8 amended petition that will set out every authority for 9 every statement that we've set forth. But there's one 10 point that hasn't been made yet, and that is that, of 11 course, the Petitioner in this case is a grass-roots 12 organization. It consists of volunteers, members of 13 the community, Millstone whistleblowers.
14 It is not funded by the government. It is 15 not funded by corporations. It is powered by the 16 concerns of people in the community. I am not paid 17 for my services, and there are issues of economics 18 that may indeed serve as part of the cause for some of 19 your concern -- for instance, disclosures of experts.
20 Experts are very expensive, and it's difficult to 21 engage experts when a grass-roots organization has 22 difficulty raising funds.
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53 1 of these issues. But I don't believe that in any 2 sense of professional standards there has been -- that 3 there has -- that that has led to any loss of 4 professional -- meeting professional standards to file 5 papers here.
6 If we were delayed in providing 7 information and coming in, so to speak, at the last 8 hour here -- and I recognize the declaration of Mr.
9 Steinberg is rather late -- but I also recognize this 10 book was published in 1998. All of the people here 11 I'm sure are familiar with it, have seen it.
12 This book is based on numbers that were 13 provided to the NRC by the licensee. We're not giving 14 you anything that isn't already out there, and it 15 shouldn't be so shocking that we would need to give a 16 citation for it, since this is all --
17 JUDGE YOUNG: Just to make the record 18 clear, I'm not familiar with it, and I would have 19 appreciated getting it sooner. I think that answers 20 my question.
21 Thank you.
22 MS. BURTON: I also --
23 CHAIRMAN ABRAMSON: Yes. Can --
24 MS. BURTON: May I just also point out, we 25 have declarations of Mr. William Honan. That was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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54 1 filed, admittedly perhaps a little bit into these 2 proceedings, but Mr. Honan is familiar, as the Acting 3 Secretary of the organization, with a great many 4 specific facts of technical problems with the 5 facility, and is prepared to come forward at further 6 proceedings in documentation of that.
7 I also want to briefly reference the 8 declaration of Clarence 0. Reynolds, formerly for a 9 number of years a skilled mechanic at Millstone.
10 CHAIRMAN ABRAMSON: Counsel, while we 11 realize that Judge Young's questions may have opened 12 the opportunity for you to raise these, we don't 13 believe that it's appropriate at this point to be 14 raising things which should have been raised in your 15 initial argument on this.
16 And your time has been allocated. We have 17 read all of the pleadings. Perhaps we can return to 18 the proceeding.
19 MS. BURTON: Certainly.
20 CHAIRMAN ABRAMSON: We understand your 21 position.
22 MS. BURTON: Thank you.
23 CHAIRMAN ABRAMSON: Okay. Do you have any 24 questions?
25 JUDGE COLE: Just a comment or two.
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55 1 Ms. Burton, you've raised a lot of 2 allegations, and I've heard some of them before and 3 have been in litigation on similar issues in a lot of 4 nuclear powerplants all over the country. Possibly, 5 some of the issues you raised have been litigated in 6 other Millstone cases. They do not seem to be really 7 new. That doesn't mean they're not important.
8 Both the licensee and the Staff indicate 9 that there's a lack of a nexus to the aging issue 10 associated with those issues, and they contend that 11 the existing regulatory system is designed to take 12 care of those kinds of issues.
13 And I think for those reasons you have a 14 problem with this contention, and I'll give you a 15 chance to respond to that.
16 MS. BURTON: You're directing your 17 comments to the first contention.
18 CHAIRMAN ABRAMSON: Yes.
19 MS. BURTON: In other words, that the NRC 20 has a policy of not considering radiological effects 21 of ordinary/routine operations of plant during the 22 relicensing proceedings, because that's an issue that 23 it's supposed to be dealing with on a day-to-day 24 basis. Is that a correct understanding of your --
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56 1 is designed to handle those kinds of systems, those 2 kinds of problems.
3 CHAIRMAN ABRAMSON: The point --
4 JUDGE COLE: And I hope they do.
S CHAIRMAN ABRAMSON: But the point is, our 6 hearing has a very narrow focus.
7 MS. BURTON: Well, I think that we can 8 fairly bring up as an issue in this proceeding that we 9 do not believe that this issue has been properly 10 addressed, and that, therefore, that leads to a 11 consideration and relicensing that may be a little bit 12 different from a consideration that other boards may 13 give to other plants elsewhere in the country.
14 JUDGE COLE: Thank you.
15 CHAIRMAN ABRAMSON: Okay. Thank you, 16 counsel.
17 Let's move on to the second CCAM 18 contention relating to terrorism.
19 MS. BURTON: And with respect to this 20 contention, I would like to reserve five minutes for 21 rebuttal.
22 CHAIRMAN ABRAMSON: Okay.
23 MS. BURTON: Thank you. We raise in 24 Contention 2 the issue that Millstone Units 2 and 3 25 are terrorist targets of choice, and we believe that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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57 1 that is an issue that is properly brought before the 2 Board in these proceedings.
3 We recognize that there is a complete 4 absence of any reference to terrorism or malevolent 5 attack on nuclear powerplants in virtually any of the 6 guides, rules, regulations, Nuclear Energy Institute 7 guides, that are referenced by the NRC as places for 8 people to go to look to see what is appropriate to 9 raise or consider in relicensing proceedings.
10 But we do not believe that because the NRC 11 website does not reference this as an issue that it's 12 not one that shouldn't be considered, because it is 13 central to the concerns of the Coalition today, and 14 certainly the entire community.
15 We recall that very recently the 9/11 16 Commission, in holding hearings in New York City, has 17 pointed out that nuclear powerplants in this country 18 were considered to be reasonable prospects for 19 terrorist attack, and we know that these plants --
20 Millstone at least -- was not built to withstand 21 terrorist attacks.
22 We believe that the NRC has acknowledged 23 certainly that the spent fuel pools are not -- were 24 not built to withstand jet attacks and other kinds of 25 attacks. Yet we are left with the prospect that the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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58 1 nuclear powerplants here will operate until the year 2 2045 without any consideration to refurbishing or 3 making other improvements or repairs or performing 4 other kinds of maintenance to the facility to assure 5 that, in the event of malevolent attack or terrorist 6 attack, the plant will be able to, for instance, shut 7 down safety without harming the public.
8 It looks as though, having reviewed this 9 application, absolutely no regard has been paid to 10 this issue. This is a credible, serious issue. We 11 know that the NRC, in earlier rulings, has decided 12 that it will not permit adjudication of issues related 13 to terrorism. This is inconsistent with the -- with 14 what we believe to be a fair reading and 15 interpretation of the standards for relicensing.
16 I think I'll reserve my remaining time for 17 rebuttal.
18 CHAIRMAN ABRAMSON: Counsel for the 19 Applicant?
20 MR. LEWIS: Yes. I really have very 21 little to add to our pleadings. The McGuire case that 22 we cite, CLI-02-26, is directly on point and holds 23 that this is neither an aging issue nor an issue 24 cognizable under NEPA.
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59 1 for your --
2 (Laughter.)
3 Okay.
4 CHAIRMAN ABRAMSON: Staff?
5 MS. MARCO: Thank you. I'd like to 6 reserve one minute, please, for rebuttal.
7 CHAIRMAN ABRAMSON: Okay.
8 MS. MARCO: The Staff opposes the 9 admission of Contention 2, because it fails to satisfy 10 the Commission's regulatory requirements for the 11 admission of contentions. Chiefly, the Commission has 12 determined in its 2002 McGuire decision that terrorism 13 contentions are beyond the scope of, not material to, 14 and inadmissible in a license renewal proceeding.
15 The McGuire decision was issued post-9/11 16 and addressed whether contentions related to terrorism 17 are admissible in a license renewal proceeding. The 18 Commission said that because terrorism issues and 19 security issues were unrelated to the detrimental 20 effects of aging, they are outside the scope of 21 license renewal adjudicatory proceedings.
22 We also oppose Contention 2 on the basis 23 that it fails to set forth the specific factual or 24 legal grounds and does meet the standards for 25 admissibility.
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60 1 CAM's June 14th amended petition merely 2 added the sentence that the application contains no 3 proposal to modify the facility to enhance its 4 protection against an act of sabotage. However, as 5 mentioned above, the Commission has determined that 6 such issues are beyond the scope of license renewal.
7 CAM asserts in its June 16th reply that 8 the Applicant fails to demonstrate "capability to shut 9 down the reactor and maintain it in a safe shutdown 10 condition," in the event a credible terrorist event 11 occurs. Similarly, CAM asserts that the Applicant 12 fails to demonstrate the capability to maintain the 13 integrity of the coolant pressure boundary in the 14 event of a terrorist event. For these propositions, 15 CAM cites to 10 CFR Section 54.4(a)(1)(2).
16 And as I mentioned, with respect to CAM's 17 contention -- first contention, Contention 1, its 18 characterization of that regulation is not accurate.
19 This regulation addresses which plant systems, 20 structures, and components are subject to an aging 21 management review. And it has not identified any of 22 the components, structures, or systems that were 23 improperly excluded from an aging management review.
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61 1 noted in its 1995 statement of consideration for 2 license renewal, and in the 2002 McGuire decision, 3 that the portion of the current licensing basis that 4 can be impacted by the detrimental effect of aging is 5 limited to design basis aspects of the current 6 licensing basis.
7 All other aspects of the current licensing 8 basis -- "physical protection, security" -- are not 9 subject to the physical aging process. And that's 10 from the McGuire decision at page 364.
11 So, therefore, the Staff opposes admission 12 of CAM Contention 2.
13 Thank you.
14 CHAIRMAN ABRAMSON: Counselor? Ms.
15 Burton?
16 MS. BURTON: Yes, I was just -- may I have 17 just a moment, please?
18 CHAIRMAN ABRAMSON: You may.
19 MS. BURTON: Thank you.
20 (Pause.)
21 JUDGE YOUNG: Are you ready?
22 MS. BURTON: Oh, yes.
23 CHAIRMAN ABRAMSON: Okay. Go ahead.
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62 1 further in the legal process. But it is clearly in 2 error in not affording the public an opportunity to 3 present and litigate this important issue.
4 The Millstone Nuclear Powerplant -- I 5 think we have asserted here that the Federal Office of 6 Homeland Security has identified it as a primary 7 terrorist target in this community. It is a key 8 element of the infrastructure of southeastern 9 Connecticut.
10 The northeast corridor of the Amtrak train 11 system runs through the very site, and because it's 12 located where it is -- at the tip of a peninsula, 13 jutting into a body of water on three sides -- that 14 fact alone raises very serious issues with respect to 15 the vulnerability of this plant to problems.
16 I had the opportunity the other night to 17 be on a ferry and watching the night sky and all of 18 the traffic of all the lights of planes -- low level 19 and high level -- flying right over Millstone as 20 though it were a navigational marker. In fact, I 21 think it is pointed out as a navigational marker by 22 the Grotton/New London Airport air traffic controller.
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63 1 of time without requiring any attention to be given to 2 even the most basic ways that the plants could be 3 refurbished and strengthened to resist attacks seems 4 to be well beyond the realm of what is reasonable for 5 a federal agency.
6 Certainly, addressing just the spent fuel 7 pools alone, if they were to be hardened and 8 protected, and particularly those that may be -- may 9 have their pools elevated above ground level, and, 10 therefore, are especially vulnerable to terrorist 11 attack -- if this can't be raised as an issue in these 12 proceedings, then I think it's a major oversight on 13 the part of the NRC through no fault of its 14 regulations.
15 Thank you.
16 CHAIRMANABRAMSON: Counselor, the McGuire 17 ruling is a Commission ruling. Do you believe that 18 that is not binding on this Board as a Board whose 19 rulings are subject to the appeal of the Commission?
20 MS. BURTON: Well, each ruling of course 21 is limited to the facts of its particular case. And 22 we don't know all the facts of that case, but we do 23 know that Millstone has been identified by a federal 24 agency, the Office of Homeland Security, as a primary 25 terrorist target in the northeast.
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64 1 And though this Board is certainly bound 2 as a matter of law by legal principles that the 3 Commission issues, we believe that there is room for 4 this Board to find cause to differ, and recognize that 5 in the case of Millstone, which is in a population 6 zone of millions of people -- the capital of the State 7 of Connecticut is within 50 miles, New Haven is within 8 50 miles, three states are within 50 miles, the 9 outskirts of Province, Rhode Island, are within 50 10 miles -- it seems to be high folly for the Commission 11 to adopt this position.
12 And we believe the facts are present here 13 for the Board to take a stand that would require the 14 owners and operators of Millstone to take steps to 15 look into what needs to be studied in terms of the 16 aging process over the next couple of decades.
17 CHAIRMAN ABRAMSON: Dr. Cole?
18 JUDGE COLE: Yes. Ms. Burton, this is a 19 question for you to answer, and maybe -- and I'd also 20 like to get the response of the other parties to it.
21 It appears that the Commission has spoken 22 in the McGuire decision that issues of terrorism are 23 not to be litigated in these types of hearings. You 24 also indicated that the Office of Homeland Security 25 has identified Millstone as something to be looked at NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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65 1 from a terrorism viewpoint.
2 The Commission speaking on -- to the 3 boards on not going into that issue in these hearings, 4 does that mean that the Commission does not have an 5 interest in terrorism or security of the nuclear 6 powerplants?
7 MS. BURTON: Well, you raise an 8 interesting question.
9 CHAIRMAN ABRAMSON: Perhaps let me 10 rephrase it. Does that lead you to believe that the 11 Commission isn't concerned about those issues?
12 MS. BURTON: It's very difficult for an 13 organization such as the Coalition to answer that 14 question, because we don't happen to be privy --
15 CHAIRMAN ABRAMSON: I'm only asking you 16 whether you believe it or not. I mean, you're asking 17 us to consider something the Commission has spoken to, 18 and what we're asking you -- you're asking us to 19 basically take into consideration an issue the 20 Commission has said to us is not within our purview.
21 And we're asking you: do you believe -- do you have 22 a belief that the Commission is not concerned about 23 terrorism?
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66 1 hasn't done enough to address the vulnerability of the 2 Millstone Nuclear Powerplant to a terrorist attack.
3 And we found it extremely disconcerting, to be quite 4 honest, when the former Chairman of the NRC, Mr.
5 Richard -- Dr. Richard A. Meserve, both an engineer 6 and an attorney, highly respected, actually made a 7 statement recently at an academic forum that if there 8 were to be a terrorist attack at an elevated pool, 9 such as at Millstone Unit 1, there shouldn't be a real 10 problem, because there would be enough time for a 11 squad of workers with firehoses to point their hoses 12 at the fuel and cool it down.
13 We thought that that was an 14 extraordinarily insensitive remark if it was meant to 15 represent the --
16 CHAIRMAN ABRAMSON: Dr. Meserve is no 17 longer the Chairman. He was out of office when he 18 made this statement.
19 MS. BURTON: It was curious that he was 20 speaking in the first person plural when he made his 21 remarks. I recognize he is no longer the Chairman of 22 the Commission, but he certainly was on 9/11 and has 23 -- we were, frankly, quite shocked at that comment and 24 had to assume that it in some way reflected upon the 25 attitude of the Commission, since he was speaking in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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67 1 the first person plural.
2 In any event, we aren't given any 3 confidence in this process that the NRC has paid any 4 attention whatsoever to terrorism if it is considering 5 allowing this nuclear powerplant to operate to the 6 year 2045, without making any terrorism protective 7 improvements or refurbishments.
8 And if it rejects a citizens' group with 9 interest in these proceedings because many of its 10 members live very close to Millstone and are in the 11 true zone of danger, if they can't raise that issue 12 here, then we do lack confidence that the NRC has a 13 commitment to protect the public from credible threat.
14 CHAIRMAN ABRAMSON: Counsel, we understand 15 that this is a serious concern for everybody in this 16 country, not just for the residents near Millstone.
17 And it may be you -- you obviously are here, and you 18 feel it may be very serious, more serious, for you 19 than it is in a -- for people who live near another 20 nuclear powerplant. And we feel that the Commission 21 has an approach to this, and certainly has advised us, 22 directed us, what we can and cannot consider.
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68 1 more concise in your answer, so we can finish this 2 proceeding today.
3 Staff, can you tell us, is there any 4 reason to believe that the Commission is not 5 addressing security issues related to terrorism 6 outside this proceeding?
7 MS. MARCO: No. There is absolutely no 8 reason to believe that. In fact, in the McGuire 9 decision, the Commission, the very first thing it did 10 was it stated its concern regarding the possibility of 11 terrorist threat to operating reactors. And it said 12 that it was conducting a comprehensive review of the 13 effects of terrorist attacks, and that it was looking 14 at its safety and security rules and procedures, and 15 it's continuing to work with other agencies regarding 16 these matters.
17 And they are looking at upgrading security 18 requirements with additional adjustments. And, in 19 fact, there have been a number of orders following 20 this related -- to operating reactors regarding 21 security and safety enhancements. In fact, several 22 orders were issued to Millstone.
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69 1 of its primary objective. So I would say that there 2 is no basis for that assertion.
3 CHAIRMAN ABRAMSON: Thank you. I don't 4 think that we need to have any rebuttal on that. And 5 I'd like to, in the interest of trying to move this 6 along, see if we can deal with Contention 3 before we 7 take a break.
8 JUDGE YOUNG: I still have a question.
9 CHAIRMAN ABRAMSON: I'm sorry. Judge 10 Young has a question.
11 JUDGE YOUNG: Just to shift the focus on 12 this just a little bit, our legal system provides for 13 a structured and organized way of resolving disputes 14 that has been developed over centuries as the fairest, 15 rights-based, really, method for resolving disputes 16 that cannot be resolved through any alternative means.
17 And part of this involves the concept of 18 precedents. The basis for the integrity of the legal 19 system is -- includes this Board's following 20 precedent, following the law, wherever it takes us.
21 And this protects parties like you; this protects the 22 public, because this requires us to follow the law no 23 matter what anyone says. No matter what a licensee 24 says or the Staff says, we're required to follow the 25 law, and precedent is part of that.
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70 1 And in this case we're all aware, and the 2 Commission's decision in the McGuire case has been 3 discussed. This is precedent for us to follow, and as 4 part of that decision the Commission indicated, I 5 think as Staff counsel pointed out, that it was going 6 to be handling terrorism issues generically, because 7 these issues affect all nuclear powerplants, and a 8 series of orders were issued.
9 And, actually, I was involved in one case 10 involving a challenge to one of the compensatory 11 orders, not with regard to a powerplant but with 12 regard to another type of facility.
13 Are you aware of any other precedent that 14 would require us not to follow the Commission 15 precedent? Because I'm not, and I just want you to 16 tell me if you're aware of any other, because this 17 would be the time to bring that out. If you could 18 just focus your answer on that.
19 CHAIRMAN ABRAMSON: Counselor, please 20 confine your answer to: do you or do you not have a 21 precedent? Let's not go off into another realm.
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71 1 judgment of precedent in light of facts presently 2 before a board.
3 And, therefore, although I don't have a 4 precedent of the NRC --
5 JUDGE YOUNG: How do you distinguish the 6 McGuire precedent, then? That would be the way that, 7 in effect, you're asking us -- you're, in effect, 8 asking us to distinguish it. How is it 9 distinguishable?
10 MS. BURTON: As I said, I'm not very, very 11 familiar with the facts of that case. But I am very 12 familiar with the facts of this case, and I know that 13 Millstone is different from that facility and needs to 14 be considered with respect to its location, the 15 population zone, the geography, the infrastructure, 16 the trains, the sub-base, Plum Island, which is a 17 federal facility for infectious diseases within the 18 nuclear evacuation zone, and the presence of a --
19 JUDGE YOUNG: Are you able to compare 20 those to the situation in the McGuire case? I think 21 you said you're not. Because, really, what I'm asking 22 is --
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72 1 if this Board determines that the facts don't present 2 a case for distinguishing from the precedent in some 3 way, then that is within the discretion of this Board.
4 JUDGE YOUNG: Okay. Thank you.
5 CHAIRMAN ABRAMSON: What time is it?
6 JUDGE YOUNG: Twenty to 11:00.
7 CHAIRMAN ABRAMSON: Twenty to 11:00.
8 Well, we've taken more time than I had hoped on these 9 two issues. But let's take a 10-minute recess, and I 10 want to confine it to 10 minutes. We'll go off the 11 record now. We'll resume at 10:48.
12 MS. BURTON: May I make a request, which 13 I should have made earlier, that we proceed into the 14 next contention and take a recess, mid-morning recess, 15 at 11:00? I would very much appreciate that.
16 CHAIRMAN ABRAMSON: Is that acceptable to 17 the other counsel?
18 MS. MARCO: That's fine.
19 CHAIRMAN ABRAMSON: Okay. Then we'll go 20 back on the record.
21 All right. Let's proceed to the next 22 contention, CCAM Contention 3 relating to the NPDES 23 permit.
24 MS. BURTON: Thank you.
25 CHAIRMAN ABRAMSON: And we've allocated 20 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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73 1 minutes here, 15, and 10.
2 MS. BURTON: Our third contention alleges 3 that Millstone Units 2 and 3 -- there's a typo here --
4 CHAIRMAN ABRAMSON: How much time do you 5 want to reserve?
6 MS. BURTON: Oh, pardon me. I would 7 request to reserve half of the time for rebuttal.
8 CHAIRMAN ABRAMSON: Ten, okay.
9 MS. BURTON: Thank you. Millstone Units 10 2 and 3 operations require the uninterrupted flow 11 through intake and discharge structures of cooling 12 water, which conduct requires a valid national 13 pollution discharge elimination system permit, and the 14 facility lacks such a valid permit.
15 We maintain that a permit was issued to 16 Millstone in 1992 under the Clean Water Act, that that 17 permit expired five years later under the terms of the 18 permit, federal law, and the facts of the case, and 19 that it has not been renewed in the intervening nine 20 years.
21 Furthermore, we maintain that there have 22 been violations of that permit. In fact, it's a 23 matter of fact that the prior owner, Northeast 24 Utilities, pleaded guilty to felonies involving 25 violations of that permit, and that involved, among NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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74 1 other things, illegal discharges of a potent 2 carcinogen, hydrazine, from various locations where it 3 was prohibited into the Long Island Sound.
4 As a point of factual reference, we'd like 5 to point out that after Northeast Utilities did plead 6 guilty to felonies under the Clean Water Act it then 7 went to our State Department of Environmental 8 protection for legal permission to do the same thing, 9 under a state law, Section 22(a)-6K, that allows, in 10 some rare instances, issuance of what are called 11 emergency authorizations.
12 And the facts of this matter are that 13 since 1998, and that is now six years ago, the DEP has 14 issued continuously emergency authorizations and 15 renewed them, into an infinite period of infinite 16 duration, authorization to do such things as release 17 hydrazine, which was previously illegal, increase the 18 output, the use of water by more than 100 million 19 gallons at Unit 3, and a host of other variations on 20 the permit that we maintain expired in 1997.
21 We have raised -- the Coalition has raised 22 some issues that pertain to this in various court 23 proceedings, and at the present time there are issues 24 that remain to be resolved on appeal with respect to 25 this permit.
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75 1 However, the fact is that for purposes of 2 this proceeding we believe that the company needs to 3 be able to represent to the NRC that it has a lawful 4 ability to use water to cool the reactors, to prevent 5 meltdown, and to clean out the systems, and that it 6 has -- it cannot do that, and that it has not done 7 that in its application.
8 And we understand that there is a vast 9 difference of opinion here between the Coalition and 10 Dominion and the Staff, leading to the clear presence 11 of material facts and issues in dispute that can only 12 be resolved through a hearing process.
13 One of the issues concerning the NPDES 14 permit is that the State Department of Environmental 15 Protection has failed to convene a hearing to consider 16 renewal of the permit since it last considered the 17 issue and issued a permit in 1992.
18 One of the issues that we have raised here 19 -- I believe it's through Mr. Reynolds' declaration --
20 is that there has been an effort, we believe, at the 21 DEP whereby the State of Connecticut has not acted in 22 compliance with the law in allowing the conduct that 23 has been going on involving the cooling system at 24 Millstone.
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76 1 hearing and rely, for instance, on the handwritten 2 memo of the present Commissioner of the Department of 3 Environmental Protection to the effect that he doesn't 4 believe he has authority to allow the company to do 5 all of these things he has allowed it to do in 6 variance to and in violation of -the permit that 7 expired in 1997.
8 All of these issues we believe are 9 appropriate for consideration with regard to 10 relicensing. It's not at all clear that Millstone 11 will ever obtain lawfully a permit to use cooling 12 water.
13 Under the state regulatory framework, 14 which derives from federal law, if a company has 15 wilfully violated a permit, the Commissioner has 16 authority to -- on the basis of that alone to deny 17 reissuance or a renewal of a permit. And the facts 18 are present here such that discretion would lie within 19 the realm of the state agency to deny the permit.
20 At this time, I would like to reserve my 21 rebuttal time and add to it from what I haven't used 22 up.
23 Thank you.
24 CHAIRMAN ABRAMSON: How much time does she 25 have left, Ms. Lin?
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77 1 MS. LIN: Fifteen minutes.
2 CHAIRMAN ABRAMSON: Fifteen minutes, okay.
3 Thank you.
4 Dominion?
5 MR. LEWIS: I will be succinct. This 6 issue is unrelated to any of the Category 2 issues 7 that Dominion is required to address in its 8 environmental report, and it's really unrelated to 9 license renewal. What, in effect, the Petitioner is 10 asking is that you litigate -- that you allow 11 litigation in this forum of Connecticut's 12 determination that Dominion's license renewal 13 application for the NPDES permit was timely and 14 sufficient. And that's clearly an issue within the 15 exclusive domain of the State of Connecticut.
16 The Commission has made it clear that the 17 Licensing Board should avoid issues that seek to 18 litigate the permitting authority of another agency, 19 particularly when it's not germane to the issues 20 before the Board. And that is exactly the case here.
21 Petitioner just suggested that perhaps the 22 NPDES permit renewal application could be denied, 23 because of past violations. And in the affidavit or 24 declaration of Mr. Reynolds there was a reference to 25 the prior criminal penalty, an assertion that it was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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78 1 levied against the corporation.
2 The corporation was not Dominion Nuclear 3 Connecticut. It was Northeast Utilities, and they are 4 not the same company.
5 That's all I have.
6 CHAIRMAN ABRAMSON: Thank you.
7 Staff?
8 MS. POOLE: Thank you. The Staff takes 9 the position that the proposed contention is beyond 10 the scope of this license renewal proceeding, and, in 11 any event, does not raise the material issue -- excuse 12 me -- a genuine dispute on a material issue of law or 13 fact.
14 First, as stated in our papers, with 15 respect to compliance with 10 CFR Section 51.45(d),
16 CCAM has not provided a basis for its assertion that 17 Dominion does not possess a valid NPDES -- that's 18 National Pollutant Discharge Elimination System for 19 the benefit of the Reporter -- permit for Units 2 and 20 3.
21 Dominion has demonstrated in its license 22 renewal application that it possesses a current, valid 23 NPDES permit, and CCAM has not provided a basis for 24 its assertion that the permit is invalid, either in 25 its original petition or in the supplements thereto.
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79 1 Moreover, and more importantly, validity 2 of the NPDES permit is properly within the 3 jurisdiction of the Connecticut Department of 4 Environmental Protection. The NRC has been barred by 5 statute from making substantive determinations of 6 compliance with the Clean Water Act, with the 7 implementation of Section 511 (c)(2) of the Clean Water 8 Act in 1972. Accordingly, the resolution of questions 9 pertaining to the validity of the NPDES permit are 10 properly before the Connecticut DEP.
11 As stated in the final rule amending 12 Part 51 to establish new requirements for the 13 environmental review of license renewal applications, 14 and I quote, "Agencies responsible for existing 15 permits are not constrained from reexamining the 16 permit issues if they have reason to believe that the 17 basis for their issuance is no longer valid." That's 18 at 61 Federal Register at page 28,475.
19 However, the NRC will not second-guess or 20 undercut those determinations. In its June 16th 21 reply, CCAM attaches the affidavit of Mr. Reynolds, 22 but that affidavit does nothing to remedy the 23 inadmissibility of this proposed contention.
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80 1 anything more than compliance with the Clean Water 2 Act, which is beyond the scope of the agency.
3 Specifically, paragraph 11 of Mr. Reynolds' affidavit 4 states that, in 1998, "the Corporation" entered a 5 guilty plea in Federal District Court to Clean Water 6 Act violations.
7 As stated by Mr. Lewis, this reference 8 pertains to Northeast Nuclear Energy Company, 9 Dominion's predecessor licensee at Millstone, who is 10 no longer the licensee and is not the applicant in 11 this license renewal proceeding.
12 The affidavit does not provide any nexus 13 between any past violations, assuming they are true, 14 and the current license renewal application. And Mr.
15 Reynolds, who is not held out to be and has not 16 demonstrated to be an expert on this subject, provides 17 no further explanation or documentation for the 18 statement, or, indeed, states how any allegations of 19 past misconduct by a different licensee relate to the 20 proposed license renewal application.
21 That's all the Staff has at this time.
22 CHAIRMAN ABRAMSON: Thank you, counsel.
23 Rebuttal, Ms. Burton?
24 MS. BURTON: Yes, thank you. The 25 Coalition intends to establish at the hearing of these NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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81 1 proceedings that the Applicant is conducting its 2 operations illegally, in violation of federal law, and 3 that those -illegal operations may be a product of 4 certain misconduct on the part of state officials.
5 We believe that with these serious but 6 ultimately supportable allegations cause is present 7 here for the Board to consider this contention in 8 these proceedings. If the Applicant is unable to 9 establish that it will be able to maintain cooling 10 water flow during its ordinary operations, or during 11 sudden unplanned shutdowns, then the application won't 12 be able to establish that during the aging process the 13 plant will continue to be maintained in a safe manner.
14 Certainly, the ability of the plant to 15 cool itself -- and I think it takes hundreds of 16 millions of gallons a minute to cool Units 2 and 3 --
17 without that ability, I don't believe the company can 18 demonstrate compliance with requirements for safe 19 operations.
20 Clearly, there is a difference of opinion 21 here. Clearly, there is a difference of opinion as to 22 the facts of the matter, and those facts need to be 23 adjudicated in this proceeding because they are 24 pertinent to the issue of the matters that the Board 25 and the Commission must consider under the standards NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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82 1 that we have cited in our papers.
2 I note that the licensee did, in its 3 environmental report, submit a copy of the 1992 4 permit. The version is not very readable, but what 5 they did not submit was a copy of an emergency 6 authorization that was originally issued to Northeast 7 Utilities and transferred to Dominion in, I believe, 8 the year 2000 to enable activities that violate and 9 are not allowed under the permit.
10 Dominion is trying to distinguish itself 11 from the prior owner -- Northeast Utilities -- but the 12 fact is if that transfer of a permit, an emergency 13 authorization, to conduct activities that violate 14 federal law ultimately is not a lawful document, then 15 Dominion can't derive any lawful authority from the 16 fact that it was simply a transferee of an illegal 17 permit.
18 It would mean that Dominion does not have 19 lawful authority to carry out the activities that are 20 required to keep Millstone operating in a condition 21 that is not unsafe.
22 I think it is quite clear from the 23 documents that have been filed by all of the parties 24 that this is an area that is hotly contested by all of 25 the parties to this proceeding, and it is set forth NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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83 1 with sufficient specificity so that it is in the 2 contention set forth by the Coalition. There is no 3 argument to the contrary.
4 I believe that we have set forth a 5 contention that is admissible and needs to be 6 litigated in these proceedings.
7 Thank you.
8 CHAIRMAN ABRAMSON: Dominion?
9 MR. LEWIS: Nothing.
10 CHAIRMAN ABRAMSON: Staff?
- 1. MS. POOLE: Nothing further. Thank you.
12 CHAIRMAN ABRAMSON: Board? Ann?
13 JUDGE YOUNG: Yes. I'd like to ask 14 Dominion counsel, do you disagree with the assertion 15 that water flow for cooling requires a permit?
16 MR. LEWIS: No.
17 JUDGE YOUNG: Okay. What would happen if, 18 ultimately, the permit were denied by the state?
19 MR. LEWIS: We would not be able to 20 operate, and operation wouldn't continue. V1 21 JUDGE YOUNG: Okay.
22 MR. LEWIS: And, actually, for that very 23 reason, you know, this is a very material issue.
24 JUDGE YOUNG: Okay. Ms. Burton, if the 25 permit is denied and the plant can't operate, where is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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84 1 the danger with regard to any lack of a permit?
2 MS. BURTON: There would be a great deal 3 of danger without a permit.
4 JUDGE YOUNG: If they can't operate -- if 5 they cannot operate.
6 MS. BURTON: If they cannot use water to 7 cool Millstone, Millstone will melt down. And that 8 will raise a very big question, and that --
9 JUDGE COLE: Could you speak a little 10 louder?
11 MS. BURTON: Yes, I'm sorry. Millstone is 12 a three nuclear reactor unit facility. Unit 1, in my 13 understanding, is shut down and is no longer using 14 cooling water. It's being -- it's cooling its spent 15 fuel with fans. So I don't think water is a real 16 issue with Unit 1. Unit 1 isn't part of the scope of 17 these proceedings.
18 But with respect to Units 2 and 3, the 19 spent fuel at those facilities is in pools, which has 20 to be recirculated. And the recirculation system 21 requires inflow continuously from the Sound. The 22 reactors at Unit 2 and 3 both require constant 23 cooling. The system for cooling relies upon a 24 continuously-operating cooling system that uses --
25 JUDGE YOUNG: Okay.
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85 1 MS. BURTON: -- hundreds of millions of 2 gallons of water.
3 Even if Unit 2 or 3 were to stop their 4 operations of generating electricity, as, in fact, a 5 Judge of the Superior Court ordered in the year 1999 6 in a case entitled Fish Unlimited v. Northeast 7 Utilities. Still, sufficient water was permitted to 8 be used to continue cooling the reactor and the spent 9 fuel.
10 I'm not sure that this is a real issue 11 that can be addressed in these proceedings, but the 12 fact is that everybody recognizes that as long as 13 there is -- there are two hot reactors with spent 14 fuel, as a practical matter they need to be cooled.
15 JUDGE YOUNG: Okay. I want to ask in a 16 moment --
17 MS. BURTON: That's a --
18 JUDGE YOUNG: -- in a moment I want to ask 19 -- in a moment.
20 MS. BURTON: Okay.
21 JUDGE YOUNG: I want to ask Dominion to 22 respond to what you're saying and indicate whether or 23 why, assuming the worst, Units 2 and 3 couldn't be 24 treated the same as Unit 1.
25 But let me ask you just a couple more.
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86 1 Are you, as the authority for this environmental 2 contention, are you asserting that there is a 3 Category 2 issue?
4 MS. BURTON: I believe, Judge Young, that 5 this issue relates to our fourth contention with 6 respect to Category 2, because --
7 JUDGE YOUNG: Which Category 2 issue?
8 MS. BURTON: Well, this is the issue with 9 regard to the entrainment fish and shellfish, 10 because --
11 JUDGE YOUNG: So you're tying this to that 12 particular Category 2 issue. Any other Category 2 13 issue?
14 MS. BURTON: That's the only one I'm aware 15 of.
16 JUDGE YOUNG: Okay. Is there any other 17 authority besides that particular Category 2 issue?
18 MS. BURTON: That's the only one I --
19 JUDGE YOUNG: Any other legal authority?
20 MS. BURTON: That's the only one I'm aware 21 of.
22 JUDGE YOUNG: Okay. Then, just on the 23 issue of our authority to, in effect --
24 CHAIRMAN ABRAMSON: Address?
25 JUDGE YOUNG: -- potentially overrule the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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87 1 state board or authority, do you have any authority 2 that would give us jurisdiction to do that, any legal 3 authority? Just yes or no.
4 MS. BURTON: I'm not really sure, because 5 I don't believe there has ever been a case.
6 JUDGE YOUNG: Okay. Then, with regard to 7 you talked about the state law 22(a)-6K, and you made 8 reference to hydrazine, and you talked about the 9 felony conviction. And I know you provided the 10 affidavits regarding that, albeit late.
11 Again, I want to indicate my concern that 12 with regard to the issue of reasonable specificity you 13 are raising some very significant issues here, and you 14 haven't provided a whole lot of authority.
15 What I gleaned from everything I've heard 16 and read is that the matter of the state -- the NPDES 17 permit is currently before the state authority. It 18 will be making a determination whether to grant a 19 renewed permit. And if it grants it, then as far as 20 any of us know there is no authority for us to 21 overrule the state, although presumably there is some 22 method of appealing that.
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88 1 have to determine how it is going to cease operation 2 of the plants pending any subsequent granting of a 3 permit.
4 I guess that' s more a statement, but do 5 you have anything -- have I left anything out in my 6 analysis? Just concisely, have I left anything out?
7 MS. BURTON: I think one omission -- and 8 it's through no fault of your own, certainly -- has to 9 do with representations that Dominion, through 10 Northeast Utilities, has made to the state. And also 11 to these proceedings with respect to the sufficiency 12 and the lawfulness of its use of water at this 13 facility.
14 JUDGE YOUNG: But what you're getting into 15 there is the issue of the state's authority. And 16 without any jurisdiction for us to intrude on that, 17 then that's before the state authority, and presumably 18 you can raise challenges to that in that forum.
19 Right?
20 MS. BURTON: Well, I'm not sure, and I 21 haven't, as I say, seen any case like this where a 22 state has denied a permit to generate -- to use water 23 to generate electricity while being certain that 24 operating -- that the plant can be cooled and not melt 25 down, other than the case that I am personally NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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89 1 familiar with where Judge Hale issued a temporary 2 restraining order while at the same time assuring that 3 the plant would not create -- produce electricity, but 4 it also would not melt down.
5 Because of the potential for that kind of 6 situation, I do believe that there may well be -- but 7 I haven't researched it -- an issue of the NRC's 8 jurisdiction over the plant, to the extent that it not 9 be without water to perform essential safety-related 10 cooling.
11 JUDGE YOUNG: Okay. Let me just ask 12 Dominion counsel, could you just respond to the issue 13 of the --
14 CHAIRMAN ABRAMSON: How much water it 15 takes to cool it?
16 JUDGE YOUNG: And what you would do to 17 protect safety, assuming you had to cease operation?
18 MR. LEWIS: Well, the heat removed from 19 the spent fuel pool by the spent fuel pool cooling 20 system is exhausted to service water presently. There 21 would be nothing that, within the timeframe of the 22 modification, that -- I mean, you could certainly 23 exhaust to atmosphere.
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90 1 that's issued for five-year terms. If you're in an 2 extended operation, this isn't kicking in for another 3 20 years. Whether we get a permit that allows us to 4 operate for the next five years has no bearing on any 5 environmental impact in the period of extended 6 operation.
7 JUDGE YOUNG: So what you're saying is 8 that assuming there were a problem, you would deal 9 with that prior to the renewal period. And I presume 10 you'd do that either by correcting any situation or 11 figuring a way to cease operations and terminate --
12 MR. LEWIS: I mean, in the hypothetical 13 situation -- and it is hypothetical -- then I believe 14 there is no basis for it, that we did not receive a 15 renewed NPDES permit. Yes, we would have to look at 16 how we would shut down the plant.
17 JUDGE YOUNG: Okay. Thank you.
18 CHAIRMAN ABRAMSON: Thank you.
19 Judge Cole, do you have any questions?
20 JUDGE COLE: Just a comment. I believe, 21 Ms. Burton, you said the plant needs hundreds of 22 millions of gallons per minute. That's a little bit 23 large for what the plant needs. Do you agree, Mr.
24 Lewis?
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91 1 minute. I heard --
2 JUDGE COLE: Yes. I heard hundreds of 3 millions of gallons per minute, and that's --
4 CHAIRMAN ABRAMSON: I didn't hear the per 5 minute.
6 JUDGE COLE: -- several orders of 7 magnitude larger than the --
8 MR. LEWIS: Yes, I didn't hear the per 9 minute, and, therefore --
10 CHAIRMAN ABRAMSON: I didn't either.
11 MR. LEWIS: -- I didn't know what period 12 she was commenting on. And, you know, if it's over a 13 long period --
14 JUDGE COLE: Well, the record will speak 15 for itself.
16 MS. BURTON: I apologize. I think another 17 number is about two billions gallons per day.
18 CHAIRMAN ABRAMSON: Two --
19 MS. BURTON: Billion --
20 CHAIRMAN ABRAMSON: -- billions gallons 21 per day.
22 MS. BURTON: -- per day.
23 CHAIRMAN ABRAMSON: Counsel?
24 MR. LEWIS: I don't have the number in 25 front of me. That sounds wrong.
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92 1 CHAIRMAN ABRAMSON: Okay. In any case, 2 that's not a matter before us at this point. So I 3 think unless we have something more to say on this 4 issue -- any other questions from the Board?
5 Okay. Then, let us now take our break.
6 It is currently -- what time do you have?
7 JUDGE COLE: 11:06.
8 CHAIRMAN ABRAMSON: 11:05. We will resume 9 at 11:15. Thank you.
10 Off the record.
11 (Whereupon, the proceedings in the 12 foregoing matter went off the record at 13 11:05 a.m. and went back on the record at 14 11:36 a.m.)
15 CHAIRMAN ABRAMSON: Let's go back on the 16 record.
17 What's the time now? It's 11:36.
18 Counselor, you have kept these proceedings 19 waiting for 20 minutes. A 10-minute break turned into 20 20 -- a 30-minute break. If you had needed more than 21 10 minutes, we would have appreciated if you had 22 asked, and perhaps we could then have all been 23 prepared to take a 30-minute break instead of a 10-24 minute break.
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93 1 and let's proceed. We are at your Contention 2 Number 4.
3 MS. BURTON: I apologize for my delay.
4 Contention 4. The operations are --
5 CHAIRMAN ABRAMSON: Sorry. How much time 6 do you want to reserve for rebuttal?
7 MS. BURTON: Half the time, please.
8 CHAIRMAN ABRAMSON: Okay.
9 MS. BURTON: Thank you. The operations of 10 Millstone Units 2 and 3 have caused irreversible harm 11 to the environment. The Connecticut Coalition Against 1 Millstone maintains in this contention that the 13 operations of Millstone Units 2 and 3 have caused 14 devastating losses to the indigenous Niantic winter 15 flounder population.
16 In addition, we maintain the operations of 17 122 Millstone Units 2 and 3 have caused irreversible 18 damage to the marine environment, and that continued 19 operations will increase the severity of the 20 environmental damage.
21 We rely in this contention upon the 22 applicability of 10 CFR Part 51, Appendix B, 23 Category 2, as providing the means for us to raise 24 this issue in the license renewal process. I believe 25 that we have fully set forth facts with sufficient NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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94 1 specificity to put everybody on notice as to what we 2 have set forth as a contention here, and that the 3 arguments to the contrary by the Staff and Dominion 4 are without merit.
5 More particularly, this contention has to 6 do with facts that have been submitted over the course 7 of almost 35 years now. In fact, probably going back 8 before that, before Millstone even began to operate, 9 when it was applying for a license to operate and 10 making projections as to the impact that the plant 11 operations would have on the marine environment.
12 Certain predictions were made that there 13 would be adverse effects. For instance, that there 14 would be the phenomenon of entrainment. Entrainment 15 is the capture into the cooling system of very, very 16 small marine organisms. They are captured by the 17 force of the intake structure. They are spun through 18 the loops in the coils of the reactor, ultimately 19 heated and discharged as debris and pollution into the 20 waters of the Long Island Sound, very, very dead.
21 The effect of entrainment on a species 22 that is subject to it may very well be that the 23 population dynamics will suffer, and, in fact, in this 24 particular case Dominion has demonstrated over a 25 course of three decades now to the State Department of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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95 1 Environmental Protection that there has been a very 2 significant effect on this indigenous winter flounder 3 that returns and has returned for thousands of years 4 to the same breeding location on the Niantic River.
5 It happens that every spring it can be 6 predicted that whatever Niantic River winter flounder 7 are in the river ready to spawn will gravitate down 8 toward the sea at a certain point, usually in the 9 springtime, and over the years it has been accepted by 10 Dominion, by DEP, by independent biologists, that a 11 very great many of these larvae are captured by 12 Millstone and are not in a position to maintain the 13 population dynamics of the species.
14 It was not represented to the NRC three 15 and a half decades ago that operations of Millstone 16 would have a devastating effect on any marine life, 17 and including the Niantic River winter flounder. The 18 projections were in low percentages, and there were 19 also projections that apart from entrainment there 20 would be adverse effects from the phenomenon known as 21 impingement.
22 Impingement occurs to larger organisms 23 which are also swept into the intake structures under 24 vast force, and essentially smashed against grates 25 that are there to keep out larger organisms from the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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96 1 cooling system. Most of the time I think it is 2 generally accepted the organisms that are subject to 3 this phenomenon are hurt. If they survive, they 4 become part of the food chain out at sea.
5 And, therefore, there are consequent 6 losses to the population dynamics. Again, Northeast 7 Utilities made certain projections as to over time 8 what the effect would be on the population dynamics 9 of, in particular, the Niantic River winter flounder 10 due to impingement. Certain projections were made, 11 and those projections are not in agreement with what 12 we know today.
13 Strangely enough, the impingement was 14 overestimated. However, the entrainment was very, 15 very much underestimated.
16 In the course of proving this contention, 17 the Coalition has indicated that it will rely very 18 principally on documentation that has been provided to 19 state authorities by Northeast Utilities and its 20 successor owner, Dominion. Studies have been 21 undertaken independently by the State of Connecticut 22 Marine Fisheries Bureau, and we are aware of 23 preliminary conclusions that the Department of 24 Fisheries for the State of Connecticut have drawn with 25 respect to this phenomenon.
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97 1 And, increasingly, the state is casting a 2 skeptical eye upon the work, the assessment, the 3 modeling that has been relied upon by the Millstone 4 owners and operators over all of these years, because 5 the fish are gone. And it wasn't projected that that 6 would happen, but that has occurred.
7 The problem is not limited, of course, to 8 Niantic River winter flounder, but they are in a very 9 special category for several reasons. One, they are 10 indigenous to the area. That means they are not found 11 other places, and they cannot replenish if their 12 habitat here is such that it's so hostile to them that 13 they are killed off as tiny members of their 14 community.
15 Another is that the Niantic River winter 16 flounder have been recognized for a very long period 17 of time as a bountiful source of food for the human 18 food chain, and, in fact, they have helped to support 19 a healthy marine industry in southeastern Connecticut, 20 which is suffering from the effects of this as are the 21 fish themselves.
22 So a great deal of attention has been 23 placed on the Niantic River winter flounder. More 24 attention is -- as they have, however, disappeared, 25 more attention has been paid to other species, which NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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98 1 also suffer the adverse effects.
2 We know that if the Millstone powerplant 3 were to stop the -- were to utilize a cooling system 4 other than the one it has now, which is the closed 5 cooling system, if it were to use another kind, that 6 would not draw in the water the way it does and 7 discharge it the way it does, that there would be a 8 minimization, very substantially, of the impacts both 9 with respect to entrainment and impingement of these 10 species.
11 And I believe that, in fact, the federal 12 EPA has recently ordered another powerplant -- non-13 nuclear -- in Rhode Island on the Narragansett Bay to 14 convert from a once through to a closed cooling 15 system, principally because of the adverse -- serious 16 adverse effects to the fish, which are substantially 17 undone if such a conversion occurs.
18 I know that the EPA has given significant 19 attention to once through cooling at the Indian Point 20 Nuclear Powerplant, and, in fact, certain consent 21 orders have been issued with respect to that facility, 22 although it has not converted as of this time.
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99 1 since 1970, and nothing is done to mitigate the 2 effects of these phenomena on the marine life, that 3 the Niantic River winter flounder, for one, if they 4 are not at the brink of extinction now will be driven 5 to extinction.
6 With respect to other fish species, they 7 also are endangered, and the continuing operations 8 will only make the matter worse.
9 MS. LIN: One minute.
10 MS. BURTON: Okay. Thank you.
11 Associated issues relate to the continuing 12 discharges of highly toxic chemicals into the waters 13 that these fish inhabit. We have in the past relied 14 upon an expert witness -- I'd like to share this 15 little bit of information -- who was the Director of 16 the Tumor Registry of Small Reptiles at the 17 Smithsonian Institution in Washington, a Dr. John 18 Harshbarger, who inspected a lot of fish and 19 determined himself, and through the aid of others, 20 that one of these chemicals that Millstone is known to 21 discharge -- hydrazine -- is a carcinogen to fish, 22 among other chemicals that are known carcinogens to 23 fish that are discharged by Millstone, at least 24 according to documentation that we have seen.
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100 1 chemicals we believe -- and we believe we can support 2 this in a hearing -- is not helpful to the community 3 of the marine environment and is harmful.
4 We have other issues to raise with respect 5 to the irreversible harm to the marine environment 6 that has to do with conditions which have changed in 7 the sea bed just beyond the out-take structure of 8 Millstone. And we have information with regard to the 9 extent and the effect of the thermal plume, which is 10 released from Millstone.
11 At this time I'll reserve my further 12 comments for rebuttal.
13 Thank you.
14 CHAIRMAN ABRAMSON: Dominion?
15 MR. LEWIS: Yes. There is a remarkable 16 lack of basis for Petitioner's assertions. There were 17 many allegations just made, but you can review their 18 pleadings in depth, and you won't find references to 19 expert opinions or references or documents 20 substantiating any of those allegations. And without 21 them, this issue is inadmissible.
22 The winter flounder has declined, but it 23 has declined on a regional basis in the Long Island 24 Sound. The Niantic River is one of a number of 25 spawning grounds. It's one of the smaller ones on the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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101 1 Niantic River, and the operation of Millstone 2 certainly doesn't explain the regional decline in 3 winter flounder.
4 More importantly, however, the contention 5 is inadmissible, because it does not present a dispute 6 with Dominion's application. And, in particular, 7 there is no dispute of compliance with 10 CFR 8 51.53(c)(3)(ii)(b), which is the provision that 9 requires us to address entrainment and impingement.
10 And that regulation states that where an applicant can 11 provide 3.16(b) determinations and 3.16(a) variance, 12 a further analysis of impacts is not required.
13 The reason for that stems from Section 511 14 of the Clean Water Act, which makes the determinations 15 by the agencies responsible for implementing the Clean 16 Water Act dispositive. And for that reason, the 17 Commission requires the submission of those 18 determinations and the documentation, but it does not 19 its own further independent analysis.
20 We have complied with that provision, and 21 there is simply no dispute about our compliance in 22 this proceeding, and, therefore, no basis for a 23 contention.
24 That's all.
25 CHAIRMAN ABRAMSON: Thank you, counsel.
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102 1 Staff?
2 MS. POOLE: Thank you. The Staff opposes 3 admission of this proposed contention on the grounds 4 that it does not set forth sufficient information to 5 show that a genuine dispute exists with the Applicant 6 on a material issue of law or fact. In particular, 7 CCAM does not take issue with any of the information 8 provided in the environmental report, or ER, 9 pertaining to aquatic impacts of license renewal as is 10 required by 10 CFR Section 2.309(f)(1)(vi).
11 In its reply, CCAM repeats its assertion 12 that the operations of Units 2 and 3 have caused 13 "devastating impacts" to the winter flounder 14 population and "irreversible damage" to the marine 15 environment. However, CCAM provides no basis 16 whatsoever for these conclusions.
17 It reiterates in the reply that it plans 18 to rely on Connecticut Department of Environmental 19 Protection Records in support of this contention, and 20 says today that it will additionally rely on documents 21 provided to the Connecticut Department by Dominion and 22 its predecessor licensee.
23 However, as stated in our papers, a simple 24 reference to a large number of documents does not 25 provide a sufficient basis for a contention. That's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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103 1 Duke Cogema, Stone & Webster, LBP-01-35, 54 NRC 403 at 2 465.
3 Rather, the Petitioner is obliged to 4 specifically reference and then summarize the 5 information relied upon. This has not been done here.
6 In addition, I would remark that in its 7 reply CCAM argues with respect to impacts on the 8 winter flounder population that Dominion relies in its 9 ER on information considered prior to 1992. However, 10 CCAM appears to disregard several pertinent references 11 used in the ER that were prepared later than 1992.
12 I would refer to reference 2.2-7, which is 13 entitled Monitoring the Marine Environment of Long 14 Island Sound at Millstone Power Station, Annual Report 15 2002, and 4.2-1, which is a feasibility study of 16 cooling water system alternatives to reduce winter 17 flounder entrainment that was submitted to the 18 Connecticut Department of Environmental Protection in 19 January 1993.
20 JUDGE YOUNG: Did you say 4.2?
21 MS. POOLE: 4.2-1.
22 JUDGE YOUNG: Thank you.
23 MS. POOLE: An additional study, reference 24 4.2-2, was prepared in 2001. So this statement has no 25 basis.
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104 1 Finally, I would just restate with respect 2 to CCAM's reliance in its reply on alleged Clean Water 3 Act violations by Dominion's predecessor licensee, as 4 we stated with respect to proposed Contention 3, 5 Northeast Utilities is not the license renewal 6 applicant. Even assuming these assertions are true, 7 the Petitioner has not established how any such 8 violations by a previous licensee are directly germane 9 to the license renewal application at issue here.
10 In any event, to the extent CCAM wishes to 11 litigate compliance with the NPDES permit, as we have 12 already discussed, the proper forum to raise such 13 issues is the Connecticut Department of Environmental 14 Protection.
15 That's all we have for now.
16 (Pause.)
17 MS. BURTON: Go ahead?
18 CHAIRMAN ABRAMSON: Yes.
19 JUDGE YOUNG: Yes.
20 MS. BURTON: In response, I'd like to 21 first of all point out that there is another party 22 here, which is the Town of Waterford, which has filed 23 certain documents with you. And we do have some 24 support, at least from the first --
25 JUDGE YOUNG: Excuse me.
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105 1 MS. BURTON: I'm sorry.
2 JUDGE YOUNG: Do we have documents from --
3 CHAIRMAN ABRAMSON: No. Let' s correct the 4 record. The Town of Waterford has indicated that it 5 would like to participate if there is a formal 6 hearing. The Town of Waterford is not a party to this 7 proceeding.
8 MS. BURTON: I stand corrected. I used 9 that term very loosely, and I should not have. But I 10 understand that you have received certain documents 11 requesting consideration of the Town of Waterford's 12 participation in a formal way in these proceedings.
13 MR. LEWIS: Your Honor, I'm not aware of 14 any filing with the Licensing Board, so --
15 CHAIRMAN ABRAMSON: There is none. They 16 are not a party to this proceeding. There were 17 some --
18 JUDGE YOUNG: To the Commission.
19 CHAIRMAN ABRAMSON: There were some 20 letters, some correspondence with the Commission.
21 MS. BURTON: On that point, I have 22 specific reference to a letter of March 2, 2004, and 23 one March 16, 2004. I had understood from these 24 letters that the town had acted upon its right to 25 request that it be permitted to be part of these
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106 1 proceedings in some --
2 CHAIRMAN ABRAMSON: The town has been 3 advised by the Commission of what actions it must 4 take. We have put them as a courtesy on distribution 5 to our orders. They are not a party to this 6 proceeding, counselor. You may continue your 7 rebuttal, but they are not a party to this proceeding.
8 MS. BURTON: Thank you. Then, I will not 9 refer to their material which has been submitted that 10 bears on this issue.
11 Having heard from the Applicant and heard 12 from the Staff, it is very clear that there is very 13 definitely a difference of opinion as to the material 14 facts here, and also the legal consequences of the 15 facts. I have not, however, heard from the Applicant 16 that the Niantic River fish population has not been 17 devastated by its operations.
18 That is -- although there is a reference 19 to documents that appear in the application, those 20 documents do not contradict the assertions with regard 21 to the plummeting population of the Niantic River 22 winter flounder. What they have to do with is 23 assertions of Dominion and it following along in the 24 tradition of its predecessor that the losses are 25 principally attributable to fishing, overfishing in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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107 1 the area, but there is no dispute that the fish are 2 mostly gone.
3 In fact, we would reference a recent 4 report from the State DEP as to the decline of the 5 adult flounder stock size by 90 percent, 95 percent 6 from 1986 to 2002 from some 76,180 fish to 4,124 fish.
7 I don't mean to suggest -- and I don't think the DEP 8 means to suggest that anybody went out there and 9 actually counted fish. But these are modeling 10 assessments that the DEP has undertaken I believe 11 independently of Northeast Utilities. There is no 12 dispute that there are hardly any of those fish left.
13 The contention of the Connecticut 14 Coalition Against Millstone here is that as Millstone 15 continues to operate into the coming decades, under 16 its current technology there will be ever-worsening 17 impacts not just to the winter flounder but to other 18 species of marine life that are in the area.
19 These include both species that tend to be 20 in the area for long periods of time as well as 21 migrators, as well as effects to the actual marine 22 environment itself, as I had mentioned before.
23 I don't think I really have anything to 24 add beyond what I have submitted in our documents, if 25 you have any questions.
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108 1 CHAIRMAN ABRAMSON: Thank you, counsel.
2 Rebuttal?
3 MR. LEWIS: No.
4 CHAIRMAN ABRAMSON: Staff?
5 MS. POOLE: No, thank you.
6 CHAIRMAN ABRAMSON: Okay. Questions from 7 the Panel?
8 JUDGE YOUNG: Yes, I have a couple of 9 questions. Let me go to Dominion first.
10 There is case law to the effect that it's 11 not Commission -- neither Congressional nor Commission 12 policy to exclude parties because the niceties of 13 pleadings were imperfectly observed. The most recent 14 case on that is CFC Logistics. Let's see, LPBO-320, 15 and then also there is the case of Houston Lighting 16 and Power Company from 1979, ALAB-549.
17 In light of that, I heard you to say that 18 there is not a problem, but let me just see if I can 19 get a better handle on this. CCAM has said that you 20 have acknowledged that Millstone's intake structures 21 and once through cooling system are responsible in 22 part for the losses. Can you -- well, first of all, 23 is that true?
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109 1 conducted that are before the DEP now that trace where 2 the larvae are coming from. What those studies are 3 indicating is that the percentage of entrained larvae 4 that originate from the Niantic nursery is a fairly 5 small percentage.
6 The greater source of entrained larvae are 7 larvae from other nurseries, other estuaries that have 8 been washed out in the Long Island Sound, then brought 9 back in by the tides. And the natural mortality of 10 those larvae that have left the estuaries is very low, 11 so there are -- let me back up a second.
12 We have not tried to address the merits of 13 Ms. Burton's assertions. It's almost impossible to do 14 when there is not a single reference to a source or a 15 document or expert opinion to do so, and we're not 16 relying on the niceties of pleadings to argue against 17 this. I mean, there is a profound absence of basis 18 for the contention -- one that, you know, really 19 prevents any further response.
20 We do not agree with her many allegations.
21 The only reason we have not responded on merits is 22 it's not the time to respond on merits. It's the time 23 to argue that she hasn't met pleading standards and 24 hasn't presented a material dispute with our 25 compliance with the regulation and what it is that we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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110 1 must provide in the environmental report.
2 JUDGE YOUNG: Right. And, actually, I'm 3 going to have some questions for Ms. Burton on the 4 specificity and support.
5 But just to sort of give this due 6 attention at this point, do you disagree that it is a 7 Category 2 issue? I was just looking to -- it seems 8 that --
9 MR. LEWIS: It is a Category 2 issue, but 10 it's a different type of Category 2 issue, because of 11 Section 511 of the Clean Water Act. The aquatic 12 impacts is not your typical NEPA issue, because there 13 is another federal statute that specifically dates 14 back -- NEPA authority, and specifically says this 15 issue belongs primarily to the agencies that are 16 implementing the Clean Water Act. And that's either 17 the EPA, or, if it's a state that's implementing it, 18 it's the state. Here Connecticut is an authorized 19 state.
20 They have the determination -- they have 21 the sole authority to determine, you know, what is the 22 best technology available to minimize aquatic impacts.
23 They have done so previously. They can reconsider it 24 any time. They are looking, again, in their current 25 renewal proceeding, but those issues belong to the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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ill 1 state.
2 Because of that limitation on NRC's 3 authority, the issue that has to be addressed in the 4 environmental report, as reflected by 5 51.53(c) (3) (ii) (B), is constrained. It is narrow, and 6 it is narrow because the Commission's authority to 7 look at this issue is narrow.
8 JUDGE YOUNG: Give me that cite again, and 9 also --
10 MR. LEWIS: It's 10 CFR 11 51.53 (c) (3) (ii) (B).
12 JUDGE YOUNG: And then, also, can someone 13 help me with where the Category 2 issue is found in 14 the appendix?
15 MR. LEWIS: It's Table B.
16 JUDGE YOUNG: No, I've got the table. I'm 17 trying to find the specific page on which it's found.
18 Do you know?
19 MR. LEWIS: Oh.
20 MS. POOLE: If I may, if you have the 2000 21 -- the Red Book, it's on page 48, Aquatic Ecology, at 22 the bottom of the page.
23 JUDGE YOUNG: Thank you. Okay.
24 MR. LEWIS: On that issue, though, 25 51.53(c) and Table B mesh, and 51.53(c) is the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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112 1 provision that explains how you address each of the 2 issues that's designated as a Category 2 issue in 3 Table -- in Appendix B to Part 51.
4 JUDGE YOUNG: And the part under 5 51.53(c)(3)(ii) -- what was it?
6 CHAIRMAN ABRAMSON: B. B as in boy.
7 JUDGE YOUNG: B?
8 MR. LEWIS: Yes.
9 JUDGE YOUNG: Okay. Ms. Burton, in the 10 old rules as well as the new rules, I think it says 11 that you need to include references to the specific 12 portions of the application, including the 13 environmental report. And I don't see any reference 14 in either your original or your amended petition, and 15 I -- maybe I'm overlooking it, but I don't think I see 16 it in the reply either.
17 Are there -- do you have a specific 18 reference to a portion of the environmental report?
19 Am I missing --
20 MS. BURTON: It's not specifically set 21 out, no.
22 JUDGE YOUNG: You made a reference in your 23 discussion to a recent report from the State DEP.
24 What's the date of that? It was the one you were just 25 reading from.
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113 1 MS. BURTON: August 28, 2003.
2 JUDGE YOUNG: And how long have you had 3 it?
4 MS. BURTON: Since yesterday.
5 JUDGE YOUNG: Since yesterday.
6 CHAIRMAN ABRAMSON: How long have you 7 known about it, counselor?
8 MS. BURTON: That particular report?
9 CHAIRMAN ABRAMSON: Yes.
10 MS. BURTON: That particular report I'm 11 not sure. I went to the DEP in Old Lyme, where they 12 have their headquarters, Monday to see if there was 13 any more current information on this application, and 14 I made a copy of this. I may have seen it before, but 15 I did not have my -- all my records. I have 16 frequently gone there to look at records to see 17 updates. I didn't have a specific recollection of 18 having seen this before, however. It's not anything 19 unusual, however. Years ago --
20 JUDGE YOUNG: Well, let's not -- let's not 21 go off into that.
22 MS. BURTON: Okay.
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114 1 indicated in my question to Dominion, the degree to 2 which this is a substantive issue, despite your 3 failure to present specific documents.
4 You mentioned hydrazine again. You 5 mentioned that a while ago, and I'm -- how long have 6 you known about that?
7 CHAIRMAN ABRAMSON: The effect of 8 hydrazine.
9 MS. BURTON: I think in probably 1999.
10 JUDGE YOUNG: And I presume you obtain 11 information about that from, what -- how do you know 12 about that?
13 MS. BURTON: From a wide variety of 14 sources, from the DEP, going through records that are 15 maintained at the Department of Environmental 16 Protection. There was a newspaper article after 17 Northeast Utilities pleaded guilty to felonies 18 involving hydrazine. I have been involved in court 19 proceedings at which there has been disclosure of 20 records concerning hydrazine.
21 JUDGE YOUNG: So you're fairly familiar 22 with all of this.
23 MS. BURTON: I am very familiar with it --
24 JUDGE YOUNG: And have been for some time.
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115 1 as --
2 JUDGE YOUNG: And the reason I'm asking is 3 because I don't see any reference to any of these 4 things in either your original or your amended 5 petition. And your -- we base our decisions --
6 another part of the legal system, we base our 7 decisions solely on the record before us, solely on 8 the arguments before us.
9 We're hearing what you have to say today, 10 but even today we don't have in front of us any 11 documents. And I'm wondering why you were not able to 12 -- or why you did not provide these or make reference 13 to these earlier.
14 MS. BURTON: If I may respond to that, 15 first of all, I have not heard Dominion dispute 16 anything that we have said today about hydrazine.
17 JUDGE YOUNG: Well, first, answer my 18 question.
19 MS. BURTON: Why was this not -- why was 20 hydrazine not specified in the petition?
21 JUDGE YOUNG: Why were none of the 22 documents or sources of which you have apparently been 23 aware for some years not mentioned in either your 24 original or amended petition?
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116 1 to records and documents maintained by the Connecticut 2 Department of Environmental Protection and other 3 state, federal, and local agencies. These records are 4 voluminous.
5 JUDGE YOUNG: All right. But here's what 6 I'm, again, coming back to. We all know the 7 requirements for contentions, and the substantive 8 requirements are pretty much as they were before with 9 regard to reasonable specificity.
10 And you make reference to these generally, 11 but in terms of my analysis and looking to whether 12 you've provided reasonable specificity, if you've 13 known about these for so long and you've been involved 14 -- and I know you've been involved, and I think I've 15 been involved in two cases before with you on 16 Millstone, I'm sort of wondering why you didn't 17 provide any specificity with regard to these sources 18 and documents, because that's what we have to -- we 19 have to follow the rules in the law, and you know what 20 it is.
21 CHAIRMAN ABRAMSON: If you came in here 22 and said to us, "All of these records are available in 23 the Library of Congress," how would you expect us to 24 deal with that? Or they're all available in the 25 Connecticut State Library? Would you not expect, when NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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117 1 our regulations require that you provide with your 2 petition specific references, that you would have to 3 do so rather than tell us they're available in the 4 state agencies' general records?
5 JUDGE YOUNG: And I'll add to that, 6 particularly, even in your reply filed on the 16th of 7 June, you talk about reports in which -- and you and 8 Dominion have acknowledged that Millstone's intake 9 structures and once through cooling system are 10 responsible in part for the loss of sufficient 11 shellfish.
12 And yet even today -- presumably you have 13 seen those reports. Even today we don't have those 14 reports before us, so we can look to see whether there 15 is enough to warrant further inquiry, which is another 16 part of the standard for our admitting contentions.
17 And, you know, again, you seem to be 18 raising very significant issues. But in spite of 19 knowing what the requirements for contentions are, and 20 filing several documents since -- what would have been 21 the deadline under the old rules, we still don't have 22 the sources and documents to which you refer.
23 MS. BURTON: I would be very happy to 24 provide an appendix with all of the --
25 JUDGE YOUNG: But what I'm asking is --
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118 1 CHAIRMAN ABRAMSON: That's not the point.
2 JUDGE YOUNG: -- why not now? Why haven't 3 we -- why didn't you file them with your petition or 4 your amended petition, or at the -- I mean, even prior 5 to this point? Did you really think that making these 6 general references would satisfy the rules?
7 MS. BURTON: First of all, I beg to differ 8 with the characterization about these general 9 statements. I believe our -- I don't want to say this 10 again, but -- because I'm being very repetitious, but 11 I believe that our contentions do satisfy the 12 standards.
13 JUDGE YOUNG: Well, let me --
14 MS. BURTON: Obviously --
15 JUDGE YOUNG: -- let me stop you. Let me 16 stop you. I'm talking about under your C, under 17 Contention 4, C, source and documents on which 18 Petitioner intends to rely. The very first one says, 19 "The Licensee's license amendment application and 20 attachments and reference contained therein."
21 And the rules, since '98 at least, 22 possibly before that, say that the -- you must include 23 references to specific portions of the application.
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119 1 satisfies the rule, when the rule specifically says 2 specific portions of the application. And you 3 certainly had that.
4 MS. BURTON: I agree with you, it is not 5 very specific. However, I think it still is valid, 6 and it can have reference to the entire application 7 if, in the entire environmental application, there is 8 information that is contrary to our contention.
9 Then, I would maintain that it is 10 sufficient to meet the standard, and I still have not 11 heard from the Staff or Dominion that they in any way 12 misunderstand any of the contentions that have been 13 propounded thus far. They seem to be very capable of 14 responding to them.
15 JUDGE YOUNG: Ms. Burton, as I said 16 earlier, we have responsibility to follow the law, to 17 base our decision on the record, and at this point to 18 make rulings on the admissibility of contentions based 19 on the contention admissibility rule.
20 To the extent that these issues may be 21 valid issues, I think you do your client a disservice 22 by not providing the specificity that the rules 23 require. And I'm asking you whether there is some 24 reason for your not having provided this information 25 in a timely fashion.
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120 1 MS. BURTON: Again, I can only respond by 2 saying that the Coalition submitted contentions which 3 we believe are legally sufficient, all meritorious, 4 all substantive, and all easily addressed by the 5 licensee and the Staff in their responses, and all 6 appropriately to be determined following a full 7 evidentiary hearing, at which we are prepared to prove 8 the truth --
9 CHAIRMAN ABRAMSON: Thank you, counselor.
10 MS. BURTON: -- of each of the 11 contentions.
12 CHAIRMAN ABRAMSON: We understand that 13 view.
14 MS. BURTON: Thank you.
15 CHAIRMAN ABRAMSON: Anything further, 16 Judge Young?
17 JUDGE YOUNG: Just one other thing. Today 18 you mentioned verbally -- you mentioned that another 19 kind of cooling system could be used at Millstone.
20 MS. BURTON: Correct.
21 JUDGE YOUNG: I don't see any reference to 22 that earlier. And today you made that reference, but 23 is that a matter that's common knowledge, what other 24 type of cooling system could be used? I don't know 25 from what you're telling me.
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121 1 MS. BURTON: I perhaps presume too much, 2 but there is -- has been an ongoing controversy since 3 at least 1973 with regard to cooling systems of 4 nuclear powerplants that are located on water bodies 5 such as Millstone is on the Long Island Sound or the 6 Indian Point plant on the Hudson River in New York.
7 There has been a controversy that has been 8 ongoing involving the impacts of cooling towers and 9 cooling systems on the marine environment. It is well 10 recognized --
11 JUDGE YOUNG: So you're familiar with it.
12 MS. BURTON: I'm not --
13 JUDGE YOUNG: It sounds as though you're 14 quite familiar with it.
15 MS. BURTON: I'm not alone in a vacuum in 16 being familiar with it.
17 JUDGE YOUNG: Okay. But --
18 MS. BURTON: I believe that --
19 CHAIRMAN ABRAMSON: Counselor?
20 JUDGE YOUNG: But I'm trying to get you to 21 address your comments to the requirements for 22 contentions that assist us in making our 23 determinations that we're required by law to make at 24 this point. And you're asking us to be aware of 25 things that are apparently common knowledge since NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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122 1 1973, and yet there is no specific reference to them.
2 MS. BURTON: Well, perhaps I presume too 3 much, but it would be very easy for us to --
4 CHAIRMAN A3RAMSON: Counselor, we 5 understand. Judge Young is simply pointing out that 6 you could have, and you've had lots of opportunity to, 7 comply with our regulations which require certain 8 degrees of specificity, and you have failed to do so.
9 I think we should return to the proceeding.
10 Judge Cole, do you have any questions or 11 comments?
12 JUDGE COLE: Yes, just one or two.
13 Mr. Lewis, you referred earlier to 14 entrainment studies. Do you recall that, sir?
15 MR. LEWIS: There are feasibility studies.
16 There was a feasibility study at the time of the last 17 NPDES permit issuance that looked at whether there 18 should be any changes to the plant to represent best 19 technology available.
20 JUDGE COLE: With respect to 21 entrainment --
22 MR. LEWIS: Yes, with respect to --
23 JUDGE COLE: -- who conducted those 24 studies?
25 MR. LEWIS: Dominion.
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123 1 JUDGE COLE: And when were they done?
2 MR. LEWIS: There was one in 1992.
3 CHAIRMAN ABRAMSON: Would that be NUSCO, 4 not Dominion?
5 MR. LEWIS: Yes, I'm sorry. It was --
6 Northeast Utilities was the 1993 study, and then 7 there's a 2001 feasibility study submitted in 8 connection with the current NPDES permit renewal 9 application. That was submitted by Dominion.
10 JUDGE COLE: And did that make an 11 assessment of the impact of entrainment on larvae and 12 other organisms?
13 MR. LEWIS: I know the 2001 study has an 14 extensive discussion of entrainment of the winter 15 flounder. It has mass balance analyses of what are 16 the impacts of entrainment, it looks at where the 17 larvae are coming from, and it considers other 18 impacts, and it looks at mitigation measures. It 19 looks at what might be done to reduce entrainment.
20 JUDGE COLE: All right, sir. Thank you.
21 MR. LEWIS: Okay. Let me say I'm sure 22 there were also entrainment studies back in the 23 original licensing of the plant. I don't know the 24 references to those studies, though.
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124 1 available to members of the public, they are part of 2 the public record of DEP?
3 MR. LEWIS: They are on Adams, the -- both 4 the --
5 CHAIRMAN ABRAMSON: Okay.
6 MR. LEWIS: -- 1991 study and the 1993 7 study. The '93 study, I believe, and the 2001 study 8 I think are both on Adams. I know for sure the 2001 9 is. I think the '93 one is, too.
10 CHAIRMAN ABRAMSON: Thank you.
11 JUDGE COLE: Ms. Burton, just one 12 question/comment. On page 8 of the -- your filing of 13 June 16th, Connecticut Coalition Against Millstone, 14 reply to licensee and NRC, answers to petition. In 15 the middle of that page you have a quotation that 16 reads, "The operations at Millstone Units 2 and 3 have 17 caused devastating losses to the indigenous Niantic 18 winter flounder populations. The operations at 19 Millstone Units 2 and 3 have caused irreparable damage 20 to the marine environment." And you've got that 21 sentence in quotation marks.
22 What is the source of that quotation? Is 23 that from some document, or is that just from one of 24 your previous filings of a contention, versions of the 25 contention?
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125 1 MS. BURTON: I believe that's a direct 2 quote from the contention itself, but --
3 JUDGE COLE: But it --
4 MS. BURTON: -- what does it derive from, 5 is that what you're asking?
6 JUDGE COLE: Yes. Is that on page 7 of 7 your February 12th filing, and on page 7 of your --
8 MS. BURTON: Yes.
9 JUDGE COLE: -- June 14th filing?
10 MS. BURTON: Yes. But, of course, 11 ultimately --
12 JUDGE COLE: But it's not referenced here, 13 it's just -- I wonder why you put it in quotation 14 marks.
15 MS. BURTON: Well, because I am replying 16 to a suggestion that it -- there is a deficiency, and 17 so I'm simply quoting it, because it appears in an 18 earlier statement.
19 JUDGE COLE: All right. Thank you.
20 CHAIRMAN ABRAMSON: Judge Young? Okay.
21 JUDGE YOUNG: That's fine.
22 CHAIRMAN ABRAMSON: I think rather than 23 break for lunch, if you are all up to it, we can 24 proceed through this, or would you like to -- how do 25 you feel about that?
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126 1 MR. LEWIS: I'm up for proceeding.
2 CHAIRMAN ABRAMSON: Is Staff okay?
3 MS. MARCO: That's fine.
4 JUDGE YOUNG: Let's take like five 5 minutes?
6 CHAIRMAN ABRAMSON: Well, the last five 7 minutes turned into half an hour. Okay. Let's -- can 8 we count on you, counselor, to make this five minutes?
9 We will take five minutes. We will adjourn for five 10 minutes, and then we will return and try to wrap this 11 up.
12 Let's go off the record at this point, 13 then.
14 Thank you.
15 (Whereupon, the proceedings in the 16 foregoing matter went off the record at 17 12:24 p.m. and went back on the record at 18 12:29 p.m.)
19 CHAIRMAN ABRAMSON: Let's go back on the 20 record. Time, please, Dick?
21 JUDGE COLE: 11:29.
22 CHAIRMAN ABRAMSON: 11 -- no, 12:29.
23 JUDGE COLE: 12:29.
24 CHAIRMAN ABRAMSON: Okay. We're going to 25 start on CCAM Contention 5. We want -- how much do NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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127 1 you want to reserve for rebuttal, counsel?
2 MS. BURTON: Again, if I may reserve half.
3 CHAIRMAN ABRAMSON: Ten? Okay.
4 MS. BURTON: In this contention, the 5 Coalition states, "Millstone Units 2 and 3 suffer 6 technical and operational defects which preclude safe 7 operation." The petition further states, "System 8 malfunctions and failures recur without adequate 9 correction. Both units have suffered excessive 10 occasions of unplanned emergency shutdown. Both units 11 suffer from premature aging."
12 In our amended petition, we assert that we 13 intend to rely upon the following documents and 14 sources to establish the facts alleged, including:
15 1) the licensee's license amendment application and 16 attachments and references contained therein, 17 including correspondence with the U.S. Nuclear 18 Regulatory Commission with regard to waivers of 19 technical specifications, relaxation of technical 20 requirements, relaxation of surveillance schedules, 21 and application Table F-3-1 ("Initial List of 22 Candidate Improvements for the Millstone Point Station 23 2, SAMA, S-A-M-A Analysis") and application Table 24 G-3-2 ("Summary of MPS3 SAMAs Considered in Cost-25 Benefit Analysis").
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128 1 In addition, the Coalition intends to rely 2 upon various other documents within state and federal 3 and local agencies, and matters of public record. I 4 will note that we did submit late -- admittedly rather 5 late the declaration of Clarence 0. Reynolds, and that 6 particular declaration has reference to some of the 7 specific problems that Mr. Reynolds outlined that have 8 been identified at Millstone in paragraphs 9, 10, 11, 9 12, in his declaration. And I believe others.
10 In addition, we have submitted the 11 declaration of William H. Honan, and in part his 12 declaration has reference to the receipt of many 13 documents attesting to the problematical operational 14 record of Millstone, and the numerous occasions when 15 the NRC has granted waivers of technical requirements 16 and suspended surveillance standards and requirements, 17 thereby relaxing safety standards where such 18 relaxation is contraindicated by the premature aging 19 of the Unit 2 and Unit 3 nuclear reactors.
20 One of the specific issues that I would 21 like to address is the one that concerns the unusually 22 frequent, unplanned shutdowns at Unit 2, for several 23 reasons. One is that these are anomalies. The 24 plants, when they're not operating at 100 percent 25 power, are not operating to the best of their design.
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129 1 According to Mr. Reynolds' affidavit, Unit 2 2 has suffered -- and this was as of some time ago, 3 it's not exactly up to date -- but he states that 4 Unit 2 has suffered 122 unplanned outages since going 5 online in 1975, this representing an average of one 6 every three months and does not include the planned 7 refueling outages, which have kept the reactor shut 8 down for 1,481 days, or 4.6 years, or 13.6 percent of 9 its operational life.
10 We will readily admit that we may have 11 overlooked it, if we did -- but we didn't see in the 12 application materials any particular analysis by 13 Dominion of this phenomenon at Unit 2 -- the 14 phenomenon of a multiplicity of unplanned outages.
15 And going back through the records which 16 the NRC has been accumulating over all of these years, 17 and correlating some of the factual circumstances of 18 some of these events, we are aware that some of these 19 or many of these outages have occurred because of a 20 failure to correct previous problems that have 21 occurred and recurred and recurred in the operating 22 life of the plant.
23 We believe that it's very important in a 24 relicensing proceeding for the NRC to give full 25 consideration to this phenomenon, because -- partly NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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130 1 because we are informed by David Lochbaum' s assessment 2 of what happens when nuclear powerplants are in their 3 aging phase that they are more prone to have problems 4 and failures and accidents, and we know from this 5 application that Dominion is not planning to replace, 6 for instance, its reactor core or its containment 7 building.
8 But we know that those structures are 9 subject to great variations in heat and pressure, 10 particularly during these unplanned shutdowns when 11 they go from full power to zero power in less than a 12 second.
13 When a plant does that so many times --
14 and, of course, Dominion is not relying upon an 15 operational record of any nuclear powerplant that has 16 ever run for 60 years -- we have difficulty 17 understanding how they have adequately assessed the 18 prospect of having even more of these unplanned 19 outages during the next period of time through the 20 year 2035 without identifying it and submitting 21 information that shows it has adequately figured out 22 how to manage the continued operations of the plant 23 during aging.
24 I think that's a major omission in the 25 application, and that thereby we raise a very NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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131 1 substantial issue that is sufficient for these 2 purposes today.
3 We are also familiar with the issue at 4 Unit 2 in particular of the cracks or beginning cracks 5 from corrosion, and the reactor vessel head. We 6 understand that the NRC has been aware of this problem 7 and has permitted Unit 2 to continue to operate 8 through the next scheduled refueling outage -- I 9 believe that's in the year 2005 -- before it 10 undertakes a capital improvement with regard to that 11 reactor vessel head.
12 We mention that in particular here because 13 of the very heightened concerns that have arisen 14 concerning the Davis-Besse plant in Ohio and 15 legitimate criticisms, we believe, that direct 16 themselves to the ability of these nuclear reactors to 17 continue to operate even in their initial life period, 18 let alone for extended periods into the unknowable 19 future.
20 We have made reference to the SAMA -- and 21 I hope it's okay to call that SAMA, S-A-M-A --
22 analysis concerning both Units 2 and 3, and with 23 respect to those portions of the application we are 24 concerned that despite an identification of potential 25 safety issues there is a reasonable prospect that in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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132 1 the course of these proceedings the -- there will be 2 a decision that Dominion can forego certain safety-3 related improvements and enhancements that may lead to 4 problems during the aging period.
5 And we are aware that Dominion has 6 presented information seeking to be relieved of 7 pressure from the NRC to undertake some of the kinds 8 of capital improvements that might be called for from 9 a strictly safety perspective, and that the failure to 10 implement the safety improvements that are identified 11 as presenting some kind of a prospect of a problem in 12 the future operations of the plant is an oversight 13 that should not be allowed, and raises, therefore, an 14 issue that we should be permitted to litigate in these 15 proceedings.
16 MS. LIN: You have one minute left.
17 MS. BURTON: Okay. It can't be any 18 secret, given the history of Northeast Utilities and 19 Millstone and the problems that have become a matter 20 of public record over the years that the facility was 21 not very well managed for a long period of time.
22 That, of course, led to a shutdown of the entire 23 station in 1996, all three reactors closed.
24 Unit 1 never recovered, never reopened.
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133 1 the same year that the Connecticut State Department of 2 Public Utility Control declared Unit 2 to be no longer 3 used and useful. Yet somehow Unit 2 was revived, 4 started up, and despite all kinds of expectations that 5 that would not, could not, or should not happen in the 6 state.
7 I'll reserve my time for rebuttal.
8 Thank you.
9 CHAIRMAN ABRAMSON: Dominion?
10 MR. LEWIS: I won't repeat what is in our 11 answer already. Let me just respond to three new 12 assertions that were made in the reply and in the 13 arguments today.
14 First, there was a discussion that there 15 needed to be analysis of unplanned shutdowns. And in 16 the reply Petitioner has suggested that such an 17 analysis is required as what's known as a TLAA, a 18 time-limited aging analysis. The definition of time-19 limited aging analysis is provided in 54.3 -- 10 CFR 20 54.3.
21 The most important portion of that for --
22 with respect to this argument is that TLAAs are those 23 analyses that are contained in and incorporated in the 24 current licensing basis. In other words, what the 25 license renewal regulations require is for you to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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134 1 identify those time-limited aging analyses that are in 2 your current licensing basis, like fatigue analyses, 3 and then you need to make sure they remain valid for 4 the period of extended operation.
5 They don't require you to invent new 6 analyses to be performed, and so the assertion that 7 there is a requirement to perform an analysis of 8 unplanned shutdowns per se is incorrect. However, 9 shutdowns are considered in fatigue analyses, and 10 fatigue is a time-limited aging analysis. And a 11 number of different components are subject to fatigue.
12 Fatigue analyses consider how many cycles, 13 how many heatups and cooldowns the plants undergo, 14 and, therefore, are addressed in our discussion of 15 fatigue in Section 4.3 of each application. And there 16 is absolutely no identification of any deficiency in 17 that analysis. There is no basis to question the fact 18 that we have looked at fatigue and addressed it and 19 showed that it remains -- the analyses that we have 20 remain valid.
21 Petitioner referred to some waiver of 22 requirements for the Unit 2 vessel head. They 23 asserted that there was a weakness in the Unit 2 24 vessel head and that there had been some previous 25 waiver that allowed Unit 2 to continue to operate to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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135 1 the next outage. I'm not sure I know exactly what 2 waiver they're referring to, but it is absolutely 3 irrelevant to license renewal.
4 The Unit 2 reactor vessel head is 5 scheduled to be changed out in the next outage.
6 They're putting in a brand-new reactor vessel head in 7 Unit 2. The Unit 3 vessel head is a low 8 susceptibility vessel head. That does not need a 9 changeout at this point in time.
10 So I see absolutely no bearing or 11 connection or relevance between the assertions about 12 a past waiver of some surveillance requirement and, 13 you know, the adequacy of the aging management of the 14 reactor vessel head in the period of extended 15 operation.
16 Our application does address pressurized 17 water stress corrosion cracking, which is the 18 phenomena that has caused cracking in reactor vessel 19 heads. We have an aging management program that is 20 described in our application. Again, the Petitioner 21 has not identified any error, any omission, any 22 deficiency in that program or in our analysis or 23 anything in our environmental report.
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136 1 application on the previous contention. I don't think 2 there is a single reference to our application in the 3 petition, in the amended petition, or in the reply, 4 except maybe in reference to the portion on SAMAs.
5 With respect to SAMAs, SAMAs are severe 6 accident mitigation alternatives that are looked at in 7 the environmental report to see if there is anything 8 that should be considered under NEPA that goes beyond 9 what's required to meet NRC regulations and meet 10 safety. They are, by definition, beyond design basis 11 requirements.
12 I think Ms. Burton characterized the SAMA 13 analysis as indicating that we were seeking relief 14 from things that might otherwise be required for 15 safety. That's absolutely not the case. The SAMAs 16 are not things that are required for safety. They are 17 measures that go beyond the NRC safety requirements.
18 They are looked at in the NEPA evaluation 19 to determine, even though these aren't required by the 20 Atomic Energy Act, should something still be 21 considered to mitigate severe accident risk under 22 NEPA? And we have analysis of a whole host of these 23 mitigation alternatives, and we look at them following 24 the NRC's standards for looking at whether 25 improvements are cost beneficial. And we have a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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137 1 conclusion on each one of them, and there isn't a 2 single assertion that any of our analyses or 3 conclusions is incorrect or improper in any respect.
4 So there is absolutely no assertion that there is any 5 deficiency in our SAMA analysis.
6 That's all.
7 CHAIRMAN ABRAMSON: Staff?
8 MS. MARCO: I believe I have 10 minutes, 9 and I'd like to reserve one of those minutes for 10 rebuttal, if I may.
11 CHAIRMAN ABRAMSON: Okay.
12 MS. MARCO: The Staff opposes admission of 13 Contention 5 on the basis that it is outside of the 14 scope of the license renewal proceeding, and it does 15 not set forth a specific factual or a legal basis as 16 required. It is outside of the scope of license 17 renewal proceeding, because it addresses technical and 18 operational defects that preclude safe operation and 19 does not raise an issue directly related to the 20 detrimental effects of aging.
21 The Petitioner asserts in one sentence 22 that "both units suffer from premature aging." This 23 assertion, along with all of the others supporting 24 this contention, fails to provide a sufficient 25 specific factual or legal basis for supporting the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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138 1 contention. And, therefore, this contention should be 2 rejected.
3 Regarding scope, as it relates to the 4 June 16th reply, CCAM asserts that the application 5 does not contain a specific analysis of such 6 continuing unplanned shutdowns as an aging issue. In 7 its reply, CCAM cites to 10 CFR Section 54.3, defining 8 the term "time-limited aging analyses," and 10 CFR 9 54.4 related to scope.
10 Regarding 54.4 regarding scope of issues 11 to be considered, Petitioner does not allege that, as 12 I mentioned, what that entails. I won't get into that 13 again, but Petitioner does not allege that any 14 particular system, structure, or component required to 15 be considered as a part of the license renewal was 16 not. And it has not raised a genuine dispute with the 17 Applicant.
18 CCAM' s June 14th amended petition provides 19 a little more detail on what documents the Petitioner 20 intends to rely, but the Petitioner's showing still 21 falls far short of what is required to support a 22 contention. In this regard, Petitioner references 23 general NRC correspondence regarding waivers of 24 technical specifications, relaxation of technical 25 requirements, and surveillance requirement schedules.
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139 1 The amended petition also includes broad 2 references to Table F.3-1 and Table G-3-2, included in 3 the Applicant's environmental report related to severe 4 accident mitigation alternatives. Nowhere in the 5 amended petition, however, does the Petitioner set 6 forth the dispute with respect to these tables or the 7 supporting reasons for each dispute as is required by 8 the Commission standards for the admission of 9 contentions.
10 Table F.3-1, for example, lists 168 11 potential improvements and the Applicant's evaluation 12 as to each. Table G-3-2 lists 52 potential 13 improvements and the Applicant's cost estimate and its 14 analysis for them. A blanket reference to these 15 tables is insufficient to support a contention based 16 on them.
17 The amended petition also asserts that the 18 contention will be of consequence in the proceeding to 19 the extent that the application does not propose to 20 undertake such modifications to address defects.
21 Again, here the petition fails to specify the 22 particular defects and the dispute as to the 23 Applicant's consideration of each modification.
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140 1 that it relies on NRC-generated documents related to 2 Millstone's operating record, equipment failures and 3 defects, and instances when the NRC has granted 4 relaxation and waivers.
5 In the reply, and again today, Petitioner 6 refers to weak areas in Millstone Unit 2 vessel head, 7 declaring it a "unsafe condition." CCAM does not 8 refer to a single specific document or demonstrate a 9 dispute with the Applicant with respect to these 10 assertions. CCAM does cite to the declaration of two 11 individuals in this contention -- William Honan and 12 Clarence 0. Reynolds.
13 A review of both of those declarations 14 shows that neither one is helpful to CAM, because 15 neither identifies any document with specificity, and 16 neither declarant is offered as an expert in matters 17 related to license renewal or the material contained 18 in the unreferenced documents.
19 Therefore, these matters are unsupported, 20 and a contention cannot be based on them. Moreover, 21 Applicant asserts in its application that the reactor 22 vessel is in the scope of license renewal because it 23 meets 10 CFR 54.4(a) (1).
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141 1 any documentary support regarding the system, and 2 neither of its two declarants refer to the fire 3 protection system at Unit 3. Therefore, assertions 4 regarding the system are completely unsupported.
5 Moreover, fire protection for Unit 3 is 6 addressed in the application. That's at Section 7 2.1.3.7.1.
8 For this reason, the Staff does not --
9 opposes admission of this contention.
10 And we wish to address one matter that was 11 heard today regarding pressure from the NRC regarding 12 specific SAMA -- its specific SAMA analysis that the 13 Applicant performed, and what the NRC is doing is we 14 are reviewing it as part of the application. We are 15 aware of no specific pressure that we have applied 16 with respect to any particular SAMA analysis.
17 Thank you.
18 CHAIRMAN ABRAMSON: Rebuttal, Ms. Burton?
19 MS. BURTON: Thank you. Let me begin with 20 the difficulty here with the SAMA, as I understand it, 21 the application is under review by the Commission.
22 But with respect to the SAMAs, there seems to be an 23 ongoing dialogue between the NRC and Dominion with 24 respect to what may or may not be appropriate, and 25 what may or may not be required.
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[1 142 1 II That to me seems to look like a moving 2 target, very difficult to address. How can one 3 criticize something that hasn't happened yet? It may 4 very well be that each of the instances involved in 5 each of the SAMAs for each of the reactors may be 6 determined to be something that should be done.
7 Notwithstanding cost, we wouldn't have any problem 8 with that.
9 But sitting here today, we don't know if 10 that may be the case or not. So I'm scratching my 11 head a little bit about how anyone is expected to be 12 in a position to address a moving target like that.
13 I have gone back through the application 14 materials that I have with respect to the issue of the 15 unplanned outages. We do stand on our contention with 16 respect to what we have said about those. I am not 17 sure that I can locate in the application where 18 Dominion addresses the prospect that in the future 19 there may be increasing unplanned outages or what the 20 standards are to review them where you have a plant 21 that has a history of unplanned outages that doesn't 22 respect any particular plan.
23 I haven't seen in the application where 24 that issue truly is addressed. I heard the attorney 25 for the Applicant say that a number of components were NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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143 1 analyzed with respect to fatigue. I'm not sure what 2 that means with regard to which components were not 3 analyzed. It's difficult to glean that information 4 from the application.
5 And in light of that -- the state of the 6 information that we have with regard to that issue, it 7 seems to me that there is a viable valid issue with 8 regard to the prospect for unplanned outages beyond 9 what could reasonably -- or beyond what is anticipated 10 in all of the documents that the NRC has been using to 11 review applications, and the cumulative effect on a 12 plant such as Unit 2, which has had such a 13 problematical operational history, and how that may 14 implicate its future operations.
15 I think that's about all I have to say.
16 CHAIRMAN ABRAMSON: Counsel, before we go 17 to rebuttal, I just want to clarify your view on the 18 unplanned outages, because in the course of your 19 presentation and your materials you have discussed the 20 economic effect as well as made general allusions to 21 safety effects. Can you clarify for me -- are you 22 raising the unplanned outages purely as a technical 23 safety issue? Or are you raising an economic issue?
24 MS. BURTON: Well, the economic issue came 25 up with respect to the SAMAs, because each one is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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144 1 subject to a cost-benefit analysis.
2 CHAIRMAN ABRAMSON: I'm sorry. I'm only 3 asking whether your concern about unplanned outages is 4 one of the economics of the operation of the plant, or 5 is it one of the safety of the plant.
6 MS. BURTON: Our concern is safety. I 7 understand that economics isn't technically part of 8 your purview.
9 CHAIRMAN ABRAMSON: Okay. And when one is 10 concerned about the safety of a plant, and one is 11 focused on the aging issue, then what the Applicant 12 has said here and said in its reply is that it has 13 focused on the stress-related issues that would arise 14 as a result of aging, and they have given you a 15 specific reference to a section in the application, 16 which you have not commented on other than to say you 17 can't find anything in the application that relates to 18 unplanned outages.
19 Would you help me understand why -- what 20 else it is you are worried about other than the 21 stress- and fatigue-related issues that would occur as 22 a result of aging?
23 MS. BURTON: Yes. We are concerned that 24 because of what we believe to be an unusually high 25 number of unplanned outages, and an unusually long NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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145 1 period of being out of operation, that assessing 2 the --
3 CHAIRMAN ABRAMSON: Sorry, counselor.
4 What's the relevance of an unusually long period of 5 being out of operation on the stress on the plant or 6 the effects of aging?
7 MS. BURTON: I think it suggests a pattern 8 of problems with the systems of the facility.
9 CHAIRMAN ABRAMSON: The number of outages 10 may suggest that, but how does the period for which it 11 is out of operation suggest that?
12 MS. BURTON: Well, I think I understand 13 that a plant that has a little problem that's easily 14 fixed will stay out of operation for a short time, 15 because economically it doesn't make sense to stay 16 shut down longer than you need to. But if you have 17 problems that are more complex, the resolution of 18 which may lead to a discovery of related problems that 19 weren't addressed before, let's say, these things can 20 lead to longer outages.
21 And what I'm suggesting is longer outages 22 suggest that there are -- the problems are more 23 serious than you might think they would be for a 24 shorter outage. That has been the history of Unit 2.
25 Unit 2 was --
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146 1 CHAIRMAN ABRAMSON: Let's not go off into 2 that. I'm trying to understand: what is your concern 3 that relates to aging here? And I think I understand 4 that what you're saying is when the plant has an 5 outage, it relates to a problem. That problem arises 6 or could be the source of a fatigue or stress problem 7 that could be exacerbated by aging. Are you saying 8 something more than that?
9 MS. BURTON: In addition to that, we are 10 concerned about the actual mechanical shutdown. Each 11 time the plant goes from 100 to zero in less than a 12 second --
13 CHAIRMAN ABRAMSON: Does that mechanical 14 shutdown in your mind do something more than make a 15 particular component weaker as a result of the stress 16 it went through due to that shutdown?
17 MS. BURTON: I believe that that's exactly 18 what we're talking about. That is what aging is all 19 about -- embrittlement, metal fatigue, and all of 20 that. All of those factors are related to what 21 happens to a facility that goes through that kind of 22 a physical phenomenon.
23 CHAIRMAN ABRAMSON: And since fatigue and 24 stress is addressed in a section of the application, 25 and which you have said you haven't reviewed -- or are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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147 1 you telling me you have not been able to find that 2 section, or you haven't been able to comprehend that 3 section? What am I --
4 MS. BURTON: It may be a combination of 5 all three. I'm not an expert. I'm not a nuclear 6 engineer, which you my have figured already. But we 7 have reviewed the application. I have been sitting 8 here trying to find any kind of a more specific 9 reference to the history of Unit 2 having an unusually 10 high number of unplanned shutdowns and how that 11 particular aspect may or may not have been assessed in 12 all of this.
13 CHAIRMAN ABRAMSON: I understand.
14 MS. BURTON: Other than simply boilerplate 15 assessment. And it sounds like not every component 16 was assessed --
17 CHAIRMAN ABRAMSON: Thank you, counsel.
18 MS. BURTON: -- since only -- it was only 19 identified that some were.
20 JUDGE YOUNG: Could I just --
21 CHAIRMAN ABRAMSON: Yes, go ahead.
22 JUDGE YOUNG: I thought I was following 23 everything, and then I just got confused with the last 24 thing you said. I thought I understood you to agree 25 that the only place that the unplanned shutdowns could NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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148 1 have an effect would be in the stress and fatigue 2 issues. Did I hear you correctly? I thought I 3 understood you to agree with Judge Abramson that that 4 was the case.
5 MS. BURTON: That is the case. However, 6 I think it needs to be understood in the context of a 7 plant that's had a history of an unusually high 8 number.
9 JUDGE YOUNG: Right. But if the only 10 place that it could have an effect would be in the 11 stress and fatigue area of problems, and -- but there 12 is a section of the application that deals with those 13 issues, which I think I understand to be the case, and 14 you haven't given us any specific reference to 15 portions of those sections of the application that are 16 somehow lacking. What is it that would remain after 17 those?
18 MS. BURTON: Well, it may very well be 19 that we simply aren't fully able to understand the 20 application. The information may be here, but we --
21 JUDGE YOUNG: So are you saying that you 22 don't know whether the application -- you don't 23 understand enough about the application to tell 24 whether it's sufficient or not with regard to stress 25 and fatigue tests?
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149 1 MS. BURTON: Looking at the application, 2 I haven't seen a specific reference to an analysis of 3 Unit 2 with respect to its unusually frequent 4 unplanned shutdowns. And how that may or may not --
5 JUDGE YOUNG: But if you --
6 MS. BURTON: -- affect the analysis --
7 JUDGE YOUNG: If you --
8 MS. BURTON: -- of --
9 JUDGE YOUNG: If you agree that that would 10 fall into the area of stress and fatigue, and you're 11 saying you don't understand enough about the parts of 12 the application dealing with that, I guess I'm just 13 not following where -- you're saying there could be a 14 problem. I guess I'm not following where you're 15 alleging there -- with any specificity --
16 MS. BURTON: Maybe I should say this --
17 started out by saying that we didn't see or understand 18 -- we didn't see in the application a section devoted 19 to the issue of these sudden shutdowns fairly 20 frequently at Unit 2. We did not see that set out in 21 those terms.
22 We declared that to be an apparent 23 insufficiency/deficiency in the application, 24 because --
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150 1 what you've heard today about the fatigue testing 2 having been done?
3 MS. BURTON: Not at all, because what I've 4 heard today is that I: a) haven't been directed to a 5 page of the application where the Applicant has said, 6 "Yes, this is where we discuss all of these unplanned 7 outages, when we had them, why we had them, and what 8 the effects were, and what the cumulative effects are, 9 and what we can expect is going to happen in the 10 future if this keeps going on or gets worse." They 11 haven't told me --
12 JUDGE YOUNG: Given that you have a 13 responsibility to look at the application, you haven't 14 pointed out where there are any problems in that 15 testing, have you?
16 MS. BURTON: What I'm saying is I haven't 17 -- I'm not aware that it's even in the application, 18 and I haven't heard the Applicant point to the page 19 where that is --
20 CHAIRMAN ABRAMSON: Okay. Let's wait 21 until we hear from the Applicant.
22 MS. BURTON: And I haven't said that --
23 CHAIRMAN ABRAMSON: Let's --
24 MS. BURTON: -- they completely -- and I 25 haven't --
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151 1 CHAIRMAN ABRAMSON: Okay. Let's hear the 2 rebuttal. I've got the answers to my questions.
3 Let's hear the rebuttal from the Applicant and from 4 the Staff, and then perhaps you'll have something that 5 you can respond to.
6 MR. LEWIS: The license renewal rule does 7 not require an analysis of every component in the 8 plant. It requires analysis of systems, structures, 9 and components that were in the scope of the rule, and 10 those are a number of different types.
11 There are safety-related components, there 12 are components to our non-safety but whose failure 13 could impact the safety-related equipment, and there 14 are components that are relied on to meet a number of 15 regulations including ATWS, the pressurized thermal 16 shock regulation, the EQ regulation, the fire 17 protection regulation. That's from memory; there may 18 be more.
19 We've analyzed the components that are 20 required to be included by virtue of the rule, and 21 those go beyond what's required for just meeting the 22 safety-related criteria. There is additional 23 components in there.
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152 1 from accomplishing their safety functions. You have 2 to look at which components are subject to what 3 effects, so you look at what components are subject to 4 fatigue, and you look at the original fatigue 5 analyses, and you determine how many cycles were these 6 components designed to meet.
7 A fatigue analysis typically takes a 8 component and it looks at the number of different 9 cycles, the number of different thermal stresses, 10 heatup and cooldowns, expansions and contractions, the 11 number of transients it is expected to accrue over its 12 lifetime, what you do typically. There's lots of 13 components, lots of analyses, so I'm talking in broad 14 terms.
15 You take a look at, you know, what has 16 been the exposure history of that component, and you 17 try and see with the extrapolated number of additional 18 cycles that you expect will you remain within the 19 original fatigue analysis. And basically you qualify 20 that component for a certain -- what's known as 21 effective full power years to show that it remains 22 qualified for the thermal transients that it is 23 expected to see over the period of extended operation.
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153 1 eat into your time -- but in that sense, you're 2 looking at the number of cycles historically. So you 3 would be incorporating this unusually -- as counsel 4 for CCAM puts it, this unusually large number of prior 5 shutdowns.
6 MR. LEWIS: Yes.
7 CHAIRMAN ABRAMSON: Thank you.
8 MR. LEWIS: Now, there may be certain 9 circumstances where some particular component isn't 10 qualified for its entire period of extended operation.
11 In that case, the rules that require you to address 12 time-limited aging analyses require you to do 13 something about it. You may have to commit to change 14 it out. You may have to commit to do a further 15 analysis before you operate past its effective full 16 power years. You may have to commit to different 17 inspections and surveillances.
18 But all of that is addressed in the 19 application for a whole multitude of components. We 20 really -- unless Petitioner refers to the specific 21 components and the specific issues and says, "Here is 22 a problem. Here is why this is wrong," it's just too 23 much information for us to address every component of 24 the plant that is addressed for fatigue and how it is 25 addressed and how many cycles and what we're doing.
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154 1 And it's also not one page. I mean, 2 Chapter 4 is devoted -- of each application, and 3 there's two applications, is devoted to time-limited 4 aging analyses, and Chapter 4.3 is devoted entirely to 5 fatigue. And there is a number of different 6 structures and components that are susceptible to 7 fatigue. It's not one answer.
8 Just on SAMAs, this contention alleges 9 that there are -- that Units 2 and 3 suffered 10 technical and operational defects. SAMAs have nothing 11 to do with addressing defects. They are not in our 12 application to address any operational problem or any 13 defect or any problem. They are simply there to say 14 as a part of NEPA there is severe accident risk. What 15 might you do beyond NRC requirements to further 16 mitigate risk? So the whole issue of SAMA is just 17 entirely relevant to this contention.
18 That's all.
19 CHAIRMAN ABRAMSON: Staff?
20 MS. MARCO: Yes. I just would like to use 21 my minute to address a bit about the Staff's review 22 process and how it interacts. It's an iterative 23 process in the Staff's review with the Applicant. We 24 issue requests for additional information normally.
25 That's a normal part of our process.
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155 1 Our schedule for when we issue the various 2 requests for environmental requests for additional 3 information and the safety requests for additional 4 information are set forth on our website. The 5 anticipated response dates are also on there. It's 6 not a hidden secret.
7 And, furthermore, despite this -- or in 8 any event -- the Commission has declared that the 9 contentions are to be based on the application and not 10 on other types of documents. There could be a case 11 made for later contentions, but that's based on 12 entirely new information received from any source.
13 That's all the Staff has to say.
14 CHAIRMAN ALBRAMSON: Finished?
15 MS. MARCO: That's it. Thank you.
16 CHAIRMAN ABRAMSON: Okay. Ms. Burton?
17 MS. BURTON: Yes. On this -- the Unit 2 18 history of unplanned outages, I guess then perhaps 19 what we need to do, not now, but to see if we can 20 fully satisfy this is to look at the comparative 21 analysis of Unit 3 and Unit 2 with respect to the 22 components and assume that the data for each of those 23 are sufficiently in contrast to reflect the different 24 histories of unplanned outages.
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156 1 loud here that if, in fact, the applications are 2 different in that respect it would tend to suggest 3 that perhaps our concern about this contention was not 4 as well placed as we thought it was. But I can't sit 5 here and say I am fully satisfied that the particular 6 peculiarities of Unit 2 and its operating history have 7 been addressed such that sitting here we can't 8 continue to propound the contention.
9 JUDGE YOUNG: You can't continue to --
10 MS. BURTON: We can't stop propounding it.
11 We continue to propound it.
12 (Laughter.)
13 CHAIRMAN ABRAMSON: We understand.
14 Anything else?
15 MS. BURTON: That's all. Thank you.
16 CHAIRMAN ABRAMSON: Well, let's move on to 17 Contention --
18 JUDGE YOUNG: I do have a question.
19 CHAIRMAN ABRAMSON: Sorry.
20 JUDGE YOUNG: Yes. First, to Dominion, 21 there was a reference to seeking some waivers with 22 regard to SAMAs. Is -- are there --
23 MR. LEWIS: No.
24 JUDGE YOUNG: You're shaking your head no.
25 There are no waivers sought with regard --
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157 1 MR. LEWIS: There is no waiver request.
2 JUDGE YOUNG: -- to SAMAs?
3 MR. LEWIS: No.
4 JUDGE YOUNG: Okay.
5 MR. LEWIS: And SAMA doesn't involve 6 waiver requests. Again, SAMA is analyses of 7 additional mitigation measures beyond what's required 8 by NRC regulations in safety that might be considered 9 under NEPA to mitigate risk.
10 JUDGE YOUNG: And you're not asking for 11 waivers of any of that.
12 MR. LEWIS: No.
13 JUDGE YOUNG: Okay. Do you know of any 14 other components other than those that are required to 15 be considered in the rule that would be affected by 16 shutdowns? Or, alternatively, can you say that there 17 are no other components that would be affected by 18 shutdowns besides those listed in the rule?
19 MR. LEWIS: I'm not aware of anything 20 that's specifically related to shutdowns beyond the --
21 you know, the cyclic aging mechanisms which are 22 addressed. I mean, our application looks at all of 23 the aging mechanisms that are identified based on 24 operating experiences occurring.
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158 1 experience is part of the license renewal process.
2 You have to look at operating experience to identify 3 what are the mechanisms that are occurring, and then 4 you have to implement an aging management program.
5 And if it's an existing program, again, you look at 6 operating experience to look at the effectiveness of 7 it.
8 I mean, there is lots of mechanisms.
9 There is -- you know, in addition to fatigue there is 10 wear and cracking and things like that, but all of 11 those are addressed by aging management programs to 12 address those mechanisms, so that there is assurance 13 that components will continue to perform their 14 function.
15 So I guess I'm not -- I can't think of 16 something else that's specifically unique to a 17 shutdown.
18 CHAIRMAN ABRAMSON: I think it's a very 19 difficult question to ask if you know of something 20 else. Maybe I can come -- address Judge Young's 21 question another way. You said -- and I didn't catch 22 the exact terminology, but you said when you're 23 looking at -- when you're required to look at things 24 that go through cycling, that means -- and you're 25 required to look at every type of cycling, which would NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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159 1 mean thermal and radiation and physical wear and 2 stress, both from pressure and from thermal, when you 3 look at those -- when the list is established of what 4 components to look at, is that a list that's 5 established by the Commission, or is it a list that's 6 established by Dominion?
7 MR. LEWIS: No, there is a scoping and 8 screening process to identify. You start with the 9 systems, structures, and components that meet the 10 license renewal scope, which is important to safety 11 and --
12 CHAIRMAN ABRAMSON: So they basically look 13 at everything that's important to safety, right?
14 MR. LEWIS: Yes. Well, there are certain 15 components that are outside the scope of license 16 renewal. Active short-lived components, which are 17 components that are replaced at regular intervals, 18 aren't looked at. The license renewal rule is focused 19 on long-lived passive components, components that have 20 remained there in the long run. And because they are 21 passive, there isn't an active, you know, way of 22 detecting failures, at least that's the theory.
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160 1 on passive long-lived components. And we don't 2 evaluate necessarily every component for every aging 3 mechanism. There is a process that associates aging 4 mechanisms with particular types of components based 5 on the environment they're in, the stresses they're 6 in.
7 So, you know, some component may not be 8 subject to thermal heatups and cooldowns, and, 9 therefore, fatigue doesn't apply to it. So you 10 identify which components are passive and long-lived 11 and within the scope of the rule and subject to 12 fatigue, and then you have to address that aging 13 mechanism.
14 JUDGE YOUNG: Yes, that's helpful. I have 15 a couple more. With regard to operating experience, 16 are there particular parts of the plan where that 17 comes into play? Or does that come into play with 18 regard to more than one? How does that reflect itself 19 in either the application or the --
20 MR. LEWIS: The requirement to look at 21 operating experience comes out of the standard review 22 plan and the NRC guidance documents. And my 23 recollection is, in going through the license process, 24 there is two points where you really look at operating 25 experience. One is in identifying, you know, what are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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161 1 the aging mechanisms that are occurring? And, you 2 know, have you looked at everything you need to look 3 at? And so you definitely look at operating 4 experience.
5 There is today an NRC staff report, which 6 is a great big voluminous report called the Generic 7 Aging Lessons Learned Report, or GALL Report, which is 8 trying to capture all of the operating -- all of the 9 lessons learned from prior license renewal 10 applications and identifies what are aging mechanisms 11 for different components. And that very much 12 reflects, you know, the learnings from all of the 13 license renewal applications which in turn is based on 14 operating experience.
15 The second point where you look at 16 operating experience is looking at the effectiveness 17 of aging management programs. And the NRC has 10 18 attributes that a good, effective aging management 19 program has to meet, and there are different things 20 like, you know, feedback and particular -- I can't 21 remember what the 10 criteria are, but one of them is 22 that it reflects operating experience, that operating 23 experience is looked at to look at the effectiveness 24 of your aging management --
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162 1 plant operating experience.
2 MR. LEWIS: I'm sorry. This is both 3 industry-wide operating experience and plant operating 4 experience, though it's not limited to what's in your 5 plant.
6 CHAIRMAN ABRAMSON: But what is in your 7 plant would be incorporated in your --
8 MR. LEWIS: Absolutely, yes.
9 JUDGE YOUNG: So I guess what I was trying 10 to get at is that apart from the fatigue testing and 11 the parts of the application that relate to the 12 different components that are in the rule, are there 13 any particular parts of the application that address 14 operating experience specifically? Or is it addressed 15 in different portions of various different parts of 16 the application?
17 MR. LEWIS: With respect to the 18 effectiveness of aging management programs, there is 19 an appendix at the back of each application that 20 describes the programs, and the operating experience 21 relevant to each of those programs is addressed there.
22 So it's with respect to each program.
23 With respect to identifying the aging 24 mechanisms for each component -- no, it -- I mean, 25 that just permeates the entire application, and it's, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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163 1 you know, the basis for the GALL Report. It went into 2 identifying it, but there's -- with respect to every 3 component, there is not a discussion of that 4 component, here is what the operating experience is.
5 Instead, there is an indication, here are the aging 6 mechanisms that have been identified.
7 JUDGE YOUNG: The earlier part that you 8 mentioned, that there was a part that talked about 9 operating experience, in that portion is there any 10 specific discussion of the shutdown history or --
11 MR. LEWIS: I don't think so. I don't 12 think that there is -- I mean, and I think that the 13 experience that's looked at is: when have failures 14 occurred, and why have they occurred, and what have 15 people done to fix them? So I don't think that there 16 is a specific discussion of, you know, what's been the 17 shutdown history of the plant.
18 JUDGE YOUNG: Okay.
19 MR. LEWIS: I mean, there is a reverse 20 side to a shutdown. Millstone was shut down for a 21 number of years for'-- not for aging issues but for 22 design basis verification activities. You know, of 23 course during that period the plant in fact was 24 subject to, you know, far fewer stresses than an 25 operating plant would be.
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164 1 JUDGE YOUNG: All right. I don't know 2 whether this would -- there would be any relevance to 3 this, but you mentioned there were -- you do 4 projections with regard to full power years. Does 5 that include projected number of shutdowns? Is that 6 -- is there any relevance there? And would the 7 shutdown history of Millstone -- of the -- I think 8 they made reference to both units, but particularly 9 Unit 2, be relevant to that?
10 MR. LEWIS: It should be, because the 11 fatigue analyses, you know, look at a number of 12 transients and a number of cycles that are expected 13 over a certain number of effective full power years.
14 And the typical analysis that one does is look at, 15 okay, how many cycles were in fact racked up during 16 this period? And, you know, what is the projected 17 number of cycles in the future? And were any of your 18 cycles outside your stresses that you assumed?
19 And your first approach to showing that a 20 component remains qualified for a fatigue life for the 21 remainder of the extended period of operation is 22 trying to show that you're going to fall within, you 23 know, the original analysis, that you're going to have 24 -- you're still going to be bounded by the number of 25 cycles, heatups and cooldowns and transients, and that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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165 1 was included in the original analysis. So --
2 JUDGE YOUNG: So that would include the --
3 every time there is a shutdown there would necessarily 4 be a cooldown and heatup again, and so the projection 5 would include the history of the shutdowns.
6 MR. LEWIS: Yes, that's correct.
7 JUDGE YOUNG: Okay. Ms. Burton, let's 8 see. I had a couple of questions for you. First of 9 all, are you aware of any other components not 10 mentioned in the rules or by Mr. Lewis that would be 11 affected by the shutdowns?
12 MS. BURTON: I have difficulty answering 13 that, because they -- I believe they are identified as 14 systems --
15 JUDGE YOUNG: Well, systems -- let's see, 16 they're identified as systems, structures, and 17 components. Any of those.
18 CHAIRMAN ABRAMSON: Which are not required 19 by the rule to be analyzed.
20 JUDGE YOUNG: Right.
21 MS. BURTON: Right.
22 JUDGE YOUNG: Or not mentioned by Mr.
23 Lewis.
24 MS. BURTON: No, I am not.
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166 1 your amended petition to two tables. And I think Mr.
2 Lewis, and possibly Staff, indicated that there was 3 nothing specific pointed out in these tables that 4 would support your argument. How do the two tables 5 provide specific support for your argument?
6 MS. BURTON: Well, I believe --
7 JUDGE YOUNG: Or show that there is any 8 reason for further inquiry?
9 MS. BURTON: I think each of the tables 10 cited is fairly representative of all of the SAMAs.
11 It seemed to us in reviewing that part of the 12 application we were very persuaded that perhaps not 13 having a complete understanding of how this fit into 14 the context of the relicensing that -- well, we 15 wondered how there could be any question but that 16 these mitigation measures would be required to be 17 implemented if it could be established that they might 18 be helpful in the event of the kind of accident that 19 they were thought of to potentially mitigate.
20 JUDGE YOUNG: I'm not following what 21 you're saying.
22 MS. BURTON: Okay. I'm sorry.
23 JUDGE YOUNG: Have these -- the tables --
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167 1 something. I got the impression from what you just 2 said that the tables indicate things that they're not 3 planning to do.
4 MS. BURTON: The tables indicate -- the 5 tables list different items that are being considered 6 as possibilities for implementation. Perhaps that's 7 one way of putting it -- not being considered for 8 possibilities of implementation but for -- being 9 considered for analysis with respect to whether or not 10 they might be useful, if there ever were an 11 accident --
12 JUDGE YOUNG: Right.
13 MS. BURTON: -- would they help to 14 mitigate the accident. I think that these two tables 15 that were particularly cited aren't -- these were just 16 excerpts from the SAMAs. They're no different from 17 other pages or other tables within the SAMAs. There 18 was something about those two tables, though, that 19 seemed to suggest that some of the items seemed like 20 awfully good ideas that a licensee should be required 21 to implement.
22 I mean, it just seems --
23 CHAIRMAN ABRAMSON: So you're raising a 24 general policy question, are you, that these issues 25 which are required to be looked at from a NEPA NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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168 1 perspective should be required to be implemented? Is 2 that what I hear you saying?
3 MS. BURTON: No, I'm not saying that at 4 all.
5 CHAIRMAN ABRAMSON: Okay.
6 MS. BURTON: All right. If I said that, 7 I didn't mean to give you that impression. Not from 8 a policy perspective, no, from an actual operational 9 perspective.
10 JUDGE YOUNG: Let me see if I can 11 understand what you're saying. These tables provide 12 lists of measures that are being considered --
13 MS. BURTON: Are being analyzed.
14 JUDGE YOUNG: -- and analyzed. And what 15 you're saying is that because they don't go further 16 and say, "We will do it," rather than, "We are 17 analyzing them," that that's the only problem that the 18 tables, in your view, illustrate?
19 MS. BURTON: It seems to me if the 20 information is there because it has passed a threshold 21 -- in other words, that it has -- that it has been at 22 least preliminarily established that this particular 23 measure might, to some extent -- and it might be only 24 to a very tiny extent -- mitigate a serious accident.
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169 1 will actually be implemented is something that right 2 now is up in the air and it -- and if I'm 3 understanding it, the NRC can't even require it, even 4 if it seems that the analysis shows that it would work 5 in a particular accident.
6 JUDGE YOUNG: You sound to be -- you sound 7 like you're talking about a challenge to the whole 8 scheme of how it's done rather than -- what my 9 question was, was how do these tables support your 10 argument that you've made that the unit suffered 11 technical and operational defects which precludes safe 12 operation, that they suffer from premature aging, 13 etcetera.
14 How do these support your arguments? And 15 maybe you can't tell me anything more than you've told 16 me. And, if so, just let me know and I'll move on.
17 I have just a couple more quick questions. And the 18 reason I'm focusing on those is because they are the 19 only two specific documents that you've listed.
20 MS. BURTON: Okay. I think I can be a 21 little bit helpful. I reference the entire 22 compilation. I'm looking at page EF-31. I reference 23 the entire compilation, because I think they are all 24 subject to the same concern.
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170 1 specific if that -- I think this is sufficient, but we 2 could be more specific to point out certain of these 3 which seem to present a situation where it would beg 4 understanding to accept that something that seems so 5 promising in terms of mitigating a safe -- mitigating 6 a serious accident would not be implemented, and in 7 this process wouldn't be required to be implemented.
8 JUDGE YOUNG: Okay. Let's move on from 9 that. I'm still not following how that relates --
10 supports your specific arguments, but just a couple 11 more.
12 You made reference to -- a couple of times 13 today to a report by Mr. Lochbaum. And I was 14 wondering two things. One, are there any specific 15 references in that to Millstone? And, two, given your 16 reliance on it, why was it never mentioned before or 17 provided to us at any time? I don't know if it's Dr.
18 Lochbaum or Mr. Lochbaum.
19 MS. BURTON: Okay. I guess I don't need 20 to find it to answer your question.
21 CHAIRMAN ABRAMSON: I think that's right.
22 MS. BURTON: Okay. Because I've misplaced 23 it.
24 CHAIRMAN ABRAMSON: Two parts.
25 MS. BURTON: Yes.
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171 1 CHAIRMAN ABRAMSON: Are there any specific 2 references? And why don't we have it?
3 MS. BURTON: Maybe I do need to find it.
4 I didn't -- I don't recall a specific reference to --
5 CHAIRMAN ABRAMSON: In your petition, any 6 of the various forms, did you make any specific 7 reference to any specific part of Dr. Lochbaum's --
8 MS. BURTON: No.
9 CHAIRMAN ABRAMSON: -- document?
10 MS. BURTON: No.
11 CHAIRMAN ABRAMSON: Okay, fine. And is 12 there a reason why that document has not been provided 13 to us, other than your general assertion earlier that 14 everything is available to us because it's in the 15 public realm?
16 MS. BURTON: First of all, it only came to 17 my attention very recently, within the past week or 18 so. That could account for it in part. I don't 19 recall a specific reference to Millstone, but it talks 20 about plants that Millstone -- Millstone meets the 21 description of plants that are in the aging area.
22 CHAIRMAN ABRAMSON: In your petition 23 itself, have you made any reference to any specific 24 portions of Lochbaum's treatise, or whatever it is?
25 MS. BURTON: Specifically, no.
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172 1 CHAIRMAN ABRAMSON: Okay.
2 JUDGE YOUNG: That's all I have.
3 CHAIRMAN ABRAMSON: And we don't have the 4 report. Okay, fine. That's -- Dr. Cole, do you have 5 any questions? Okay. Then, I think we're -- did we 6 not yet hear from the Staff on rebuttal?
7 MS. MARCO: I'm sure I did. I did, yes.
8 JUDGE YOUNG: We did.
9 CHAIRMAN ABRAMSON: Okay.
10 JUDGE YOUNG: We did.
11 CHAIRMAN ABRAMSON: All right. Let' s move 12 on to the -- to Contention 6, then, if everybody is 13 finished with that one.
14 And, again, you want to tell us how much 15 you'd like to -- this relates to evacuation of 16 Connecticut and Long Island. How much time would you 17 like to reserve of the 10 minutes you have, counsel?
18 MS. BURTON: Five minutes, please.
19 CHAIRMAN ABRAMSON: Okay.
20 MS. BURTON: In this contention, we 21 maintain that Connecticut and Long Island cannot be 22 evacuated in the event of a serious nuclear accident 23 at Millstone which today is credible. And in a 24 serious accident, substantial portions of this state 25 and New York state and Rhode Island, probably NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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173 1 Massachusetts and parts -- other parts of New York 2 would be required to be evacuated.
3 And we maintain that this is an issue that 4 the Board and the Commission need to consider in the 5 process of considering whether or not to allow 6 Millstone Units 2 and 3 to continue to operate for the 7 next few decades beyond the termination of their 8 current licenses.
9 JUDGE YOUNG: Could I just clarify one 10 thing so I can follow you while you're going? When 11 you're talking about a serious nuclear accident, are 12 you talking about a terrorism-related accident, or 13 another kind of accident? Or are you meaning to 14 include both?
15 MS. BURTON: Well, I understand that you 16 people don't consider terrorism to be within your 17 jurisdiction, so I don't want to hazard the wrong 18 answer. But we -- it is our contention that we are 19 properly raising that issue as well as the issue of 20 the prospect of a possible serious non-terrorism 21 accident.
22 Now, we know that there are high 23 population zones within close proximity to Millstone.
24 Millstone is located next to residential zones. They 25 are fairly dense. New London is a metropolitan area, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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174 1 so is Hartford, so is New Haven, so is Providence.
2 Boston isn't so far away when you consider 3 the direction of the prevailing winds, yet -- and 4 apart from that, coming closer to home, there are very 5 many public schools for children very close to 6 Millstone, within two miles several of them, 7 facilities for elderly people who would have a very 8 difficult time if there were a serious accident at 9 Millstone, and there never has been an actual drill in 10 this community, even though Millstone has been 11 operating here for 30 years.
12 And there isn't any current plan to have 13 a drill now or next week or next year or 30 years from 14 now. And so whether or not the plans that were 15 devised some time ago would ever work is a big 16 question mark. I will point out that the plans were 17 not perfect to begin with, because one of them 18 required the people who inhibit Fisher's Island, which 19 is a lovely summer community southeast of here, to in 20 the event of an accident at Millstone to actually come 21 toward Millstone, sort of to travel into the dragon's 22 mouth.
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175 1 to enforce, if not impossible, if you told people that 2 they have to go toward the plume for safety. That has 3 been changed, but very little else has been changed 4 about the plan.
5 I don't believe that it takes into account 6 the fact that there are some very successful casinos 7 that operate very close to here, attracting a lot of 8 people, tying up the highways with a lot of people.
9 This is a very congested area. It's often tied up in 10 traffic. There have been events involving -- recently 11 the Amtrak train had to be discontinued because a 12 train bridge at the Niantic Bridge down the Sound from 13 Millstone didn't close. That contributed to a tie-up.
14 I don't know that that is a factor that's contemplated 15 in the evacuation plan.
16 We know that the current requirements are 17 that there only be one person qualified at local 18 hospitals to deal with a radiation contamination event 19 and equipment for one contamination event, in order 20 for these hospitals to maintain their certification to 21 operate. That we know would not suffice in an 22 emergency, yet there is nothing that's -- that 23 addresses that in the current plan.
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176 1 the credible threat of a terrorist attack, given the 2 frequent unplanned outages at Millstone, given all of 3 the problems that have bene associated with that 4 facility, given a lot of other factors, given the fact 5 that it's in a highly populated area -- Long Island, 6 of course can't be evacuated -- all of these factors 7 point to the need to have this issue considered in the 8 relicensing plans that would look ahead to what the 9 population is going to be in the year --
10 CHAIRMAN ABRAMSON: Counselor, your time 11 is up. Sorry, we forgot to give you the one-minute 12 warning.
13 MS. BURTON: Oh, okay.
14 CHAIRMAN ABRAMSON: Do you want to 15 continue and --
16 MS. BURTON: Well, just that sentence.
17 CHAIRMAN ABRAMSON: Okay.
18 MS. BURTON: Just that sentence. There is 19 no project in this application as to the population in 20 201S, 2025, 2035, and 2045, correlating with the 21 timeframe of this application. And that's a very 22 serious oversight. We believe we have raised a 23 sufficient contention.
24 Thank you.
25 CHAIRMAN ABRAMSON: Dominion?
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177 1 MR. LEWIS: There are population 2 projections in the application, but they certainly 3 don't relate to emergency planning, because emergency 4 planning is a current term issue, not a license 5 renewal issue.
6 I think I'm just going to rely on the 7 pleadings that point out the Commission's statements 8 during the rulemaking proceedings in the Turkey Point 9 case where the Commission has clearly stated that 10 emergency planning is outside the scope of such -- of 11 a license renewal proceeding like this one.
12 JUDGE YOUNG: Are you finished?
13 MR. LEWIS: Yes.
14 CHAIRMAN ABRAMSON: Staff?
15 MS. MARCO: Yes. The Staff opposes the 16 admission of Contention 6, because it fails to satisfy 17 the Commission's regulatory requirements for the 18 admission of contentions. In particular, this 19 contention is outside of the scope of the license 20 renewal proceeding, and it does not set forth the 21 specific factual or legal basis that's required to --
22 by the Commission's regulations.
23 Emergency planning issues are already the 24 focus of ongoing regulatory processes. The Commission 25 has declared in both its Turkey Point decision and in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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178 1 the statements of consideration for Part 54 in 1991, 2 and again in 1995, that because the Commission ensures 3 that existing emergency plans are adequate throughout 4 a reactor's life emergency planning is one of the 5 safety issues that don't need to be reexamined within 6 the context of license renewal.
7 The Staff notes that CCAM did not amend 8 this contention as part of its June 14th amended 9 petition. In its June 16th reply, CCAM argues that 10 plant aging issues are implicated in emergency 11 planning because an aging reactor will be more prone 12 to accidents.
13 CCAM asserts that an evacuation plan is a 14 "system" created to mitigate the consequences of 15 accidents within the meaning of 10 CFR Section 16 54.4(a)(1)(3). However, this interpretation cannot 17 stand in light of the Commission's exclusion of 18 emergency planning from the scope of the SSCs that are 19 subject to an aging management review, which is the 20 focus of that Regulation 54.4.
21 CAM asserts that by stating that the 22 adequacy of emergency plans need not be considered 23 anew as part of its -- of issuing a renewed license, 24 the Commission did not preclude their consideration.
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179 1 a contention cannot be based on a petitioner's view as 2 to what the regulatory requirements ought to be. Such 3 assertions do not raise litigable issues.
4 Finally, CCAM asserts in its June 16th 5 reply that in light of the events of September 11th 6 the NRC should allow consideration of this matter in 7 the proceeding. In this regard, CCAM asserts that the 8 statements of consideration addressing this issue were 9 published 10 years before September 11th.
10 The Commission, however, in the 2002 11 McGuire licensing proceeding, as discussed before, 12 relied on its assertion that the 1991 statements of 13 consideration -- that a "review of the adequacy of 14 existing security plans is not necessary as part of 15 the license renewal process." And that's at page 364 16 of that decision.
17 Therein, the Commission distinguished 18 contentions relating to security from those related to 19 the detrimental effect of aging. Therefore, the Staff 20 opposes admission of this contention.
21 CHAIRMAN ABRAMSON: Ms. Burton?
22 MS. BURTON: Yes. We still stand on our 23 contention and its admissibility. Given the NRC 24 Commissioner's statement that I cite at page 15, that 25 was quoted by the Staff a moment ago, that the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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180 1 adequacy of existing emergency preparedness plans need 2 not be considered anew as part of issuing a renewed 3 operating license, does not mean that it can't be or 4 it shouldn't be or that it wouldn't be completely 5 appropriate and necessary for it to do so.
6 And the call on that really is this 7 Board's call, given the information before it. The 8 company hasn't disputed that there has never been a 9 real drill in real life in this area, hasn't disputed 10 that there are elementary schools within two miles, 11 elderly care facilities, and a lot of people living in 12 this area, and very limited facilities and training 13 for emergency personnel, let alone resources for this.
14 So in light of these facts, it would 15 appear to be appropriate to the Coalition for this 16 Board to accept as admissible this contention.
17 Thank you.
18 CHAIRMAN ABRAMSON: Questions? Judge 19 Young?
20 JUDGE YOUNG: Well, I wasn't going to ask 21 any questions, but I'll just ask one.
22 CHAIRMAN ABRAMSON: Can you get a short 23 answer?
24 JUDGE YOUNG: I hope so.
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181 1 said, you said that it doesn't preclude consideration.
2 Assuming it did, I was just trying to think, where 3 would it fall? It would seem to have -- to fall under 4 SAMAs. And yet you haven't really argued it under 5 that theory. Otherwise, where would it fall within 6 the scope of what's included within license renewal?
7 MS. BURTON: Well, I think since the 8 Commission made the statement itself when it 9 promulgated 10 CFR Part 54 it didn't exclude or 10 preclude this consideration in license renewal 11 proceedings. They didn't preclude it. They expressly 12 did not preclude it.
13 I think the ordinary rules of statutory 14 construction would hold that they didn't mean to 15 preclude it, therefore, it's okay to pursue it within 16 the discretion of the body. And we think that we have 17 set forth good cause why it should be considered here.
18 CHAIRMAN ABRAMSON: Judge Cole?
19 JUDGE COLE: No questions.
20 CHAIRMAN ABRAMSON: All right. Well, I 21 think that concludes -- do we have any comments from 22 anybody at this point?
23 As we mentioned to you earlier, then, our 24 objective and the required goal by our regulations is 25 that we have a ruling on admissibility of these NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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182 1 contentions out by the 29th of July. We will 2 certainly satisfy that obligation.
3 If in the interim we decide, as a Board, 4 that Petitioner's stay request should be granted, we 5 will issue a separate ruling on that before that date.
6 And with that, Judge Young?
7 JUDGE YOUNG: I was just going to say, 8 obviously, if the Court issues a stay, you'll notify 9 us of that, I'm sure.
10 CHAIRMAN ABRAMSON: I have no doubt.
11 In the meantime, we do not need any 12 further filings. The record is closed on these 13 matters, and we will take them under advisement and 14 issue our rulings.
15 Thank you. We're done.
16 (Whereupon, at 1:48 p.m., the proceedings 17 in the above-entitled matter were 18 concluded.)
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CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission in the matter of:
Name of Proceeding: Dominion Nuclear Connecticut, Inc.
Docket Number: 50-336-LR, 50-423-LR Location: New London, CT were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken by me and, thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript is a true and accurate record of the foregoing proceedings.
(1W Peter Holland Official Reporter Neal R. Gross & Co., Inc.
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