ML021070210
| ML021070210 | |
| Person / Time | |
|---|---|
| Site: | Millstone  |
| Issue date: | 04/02/2002 |
| From: | Mocann J Neal R. Gross & Co. |
| To: | Office of Nuclear Reactor Regulation |
| Byrdsong A | |
| References | |
| +adjud/rulemjr200506, 50-423-LA-3, ASLBP 00-771-01-LA, RAS 4312 | |
| Download: ML021070210 (164) | |
Text
Official Transcript of Proceedings.~'DOCKETED USNRC 2002 APR 15 PH 1: 49 NUCLEAR REGULATORY COMMIsgo$19ASfRErARY ADJUDICATIONS AND SoEMAKINGS STAFF Title Dominion Nuclear Connecticut, Inc.
Millstone Nuclear Power Station, Unit 3 Docket Number: 50-423-LA-3 Location: Mystic, Connecticut Date: Tuesday, April 2, 2002 ORIGINAL Work Order No.: NRC-317 Pages 698-859 NEAL R. GROSS AND CO;, INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433 ofoez a:
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698 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3
4 5 ------------------------- x 6 In the matter of:
7 DOMINION NUCLEAR : Docket No. 50-423-LA-3 8 CONNECTICUT, INC.
9 (Millstone Nuclear Power 10 Station, Unit No. 3) 11 ------------------------ x 12 Tuesday, April 2, 2002 13 14 Best Western Sovereign Hotel 15 8 Whitehall Avenue 16 Mystic, Connecticut 17 18 The above entitled matter came on for 19 hearing, pursuant to notice, at 9:45 a.m.
20 BEFORE:
21 THE HONORABLE CHARLES, BECHHOEFER, Chairman 22 THE HONORABLE RICHARD F. COLE, ADMINISTRATIVE JUDGE 23 THE HONORABLE CHARLES KELBER, ADMINISTRATIVE JUDGE 24 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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699 1 APPEARANCES:
2 On Behalf of Dominion Nuclear Connecticut:
3 DAVID A. REPKA, ESQ.
4 Winston & Strawn 5 1400 L Street, N.W.
6 Washington, D.C. 20005 7
8 CHARLES THEBAUD, ESQ.
9 Counsel 10 Northeast Utilities 11 12 LILLIAN M. CUOCO, ESQ.
13 Dominion Nuclear Connecticut, Inc.
14 Millstone Nuclear Power Station 15 Building 475/5 16 Rope Ferry Road (Route 156) 17 Waterford, Connecticut 06385 18 19 PETER HYDE, Spokesman 20 Millstone Station 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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700 1 APPEARANCES: (CONT.)
2 On Behalf of the Nuclear Regulatory Commission:
3 ANN P. HODGDON, ESQ.
4 SARA BROCK, ESQ.
5 Office of the General Counsel 6 Mail Stop - 0-15 D21 7 U.S. Nuclear Regulatory Commission 8 Washington, D.C. 20555-0001 9 ALSO PRESENT:
10 VICTOR NERSES, Project Manager, Millstone-3 11 JOHN HICKMAN, Project Manager, Millstone-l 12 ANTONE SIRNEY, Senior Resident Inspector 13 MARTHA WILLIAMS, NCNA Inspector 14 DANIEL MEEKHOFF, Supervisor 15 in Nuclear Operations Support 16 RICHARD SWANSON 17 DAVID DODSON 18 ROBERT FAIRBANK 19 HUGH MCKENNEY 20 CARL WHITTIKER 21 MICHELLE McKOWN, ESQ., ASLBP 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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701 1 INDEX 2 SPEAKERS: PAGE 3 Preliminary Matters .......... . . . . 702 4 Oral Argument 5 On Behalf of the Intervenors 6 Nancy Burton ...... . . . . 707 7 On Behalf of Dominion Nuclear 8 David Repka ... ........ .. .. . 746 9 NRC Staff Presentation 10 Sara Brock ....... . . . . 794 11 Rebuttal Argument 12 On Behalf of the Intervenors 13 Nancy Burton ...... . . . . 817 14 On Behalf of Dominion Nuclear 15 David Repka ... ........ . . . . 848 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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702 1 P-R-O-C-E-E-D-I-N-G-S 2 (9:45 a.m.)
3 CHAIRMAN BECHHOEFER: Good morning, ladies 4 and gentlemen. We are here this morning for a 5 resumption of the oral argument concerning the request 6 of Dominion Nuclear Corporation, DNC, which is the 7 successor to Northeast Nuclear Energy Company, to 8 expand the capacity of the spent fuel pool at the 9 Millstone Unit 3 Nuclear Power Plant.
10 Specifically, we are here to consider the 11 effect, if any, of Northeast Nuclear's, and now 12 Dominion's, inability to account for the location of 13 two spent fuel rods from Millstone Unit I and whether 14 this inability has implications for Dominion's ability 15 or willingness to locate fuel rods or bundles in the 16 Millstone 3 spent fuel pool.
17 At the outset, we would like to 18 congratulate the State of Connecticut for it's 19 national women's basketball crown, The Huskies, I 20 guess, and likewise, we congratulate Marylanders on 21 the men's title, which we spent some time watching 22 last night.
23 At this stage, I would like to introduce 24 or have introduced various people. With respect to 25 the Board, on my left is Dr. Charles Kelber, to my NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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703 1 right is Richard Cole, Dr. Richard Cole, and I'm 2 Charles Bechhoefer. I'm the Chairman of the Board.
3 On my far right is Michelle McKown, who's 4 a law clerk at the Board, legal advisor to the Board 5 as such. She is over here. And I'll start with, I 6 guess I'll go from my left to right with Dominion 7 first.
8 MR. REPKA: Yes. Thank you. I'm David 9 Repka, counsel for Dominion Nuclear Connecticut. Let 10 me also introduce the rest of my support here today.
11 On my right is Mr. Daniel Meekhoff, who's supervisor 12 in Nuclear Operations Support, and he's filed an 13 affidavit in this proceeding.
14 Starting behind me in the first and second 15 rows, you'll see a number of individuals who have also 16 filed testimony in this case. Starting to my, moving 17 right to left is Mr. Richard Swanson; next to him is 18 Mr. David Dodson, who filed an affidavit in the first 19 phase of this hearing; seated next to Mr. Dodson is 20 Mr. Robert Fairbank, who has filed an affidavit in 21 this case related to the FRAP report.
22 Next to Mr. Fairbank is Mr. Hugh McKenney, 23 who is also with Dominion Nuclear Connecticut, who has 24 also filed an affidavit; and then in the second row is 25 Ms. Lillian Cuoco, counsel for Dominion Nuclear NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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704 1 Connecticut.
2 Seated next to Ms. Cuoco is Mr. Charles 3 Thebaud, T-H-E-B-A-U-D, who is counsel for Northeast 4 Utilities, and last, but not least, is Mr. Carl 5 Whittiker, of Dominion Nuclear Connecticut.
6 CHAIRMAN BECHHOEFER: NRC staff, 7 Ms. Hodgdon?
8 MS. HODGDON: I'm Ann Hodgdon for the NRC 9 staff, NRC staff counsel, and with me, to my left 10 today -- you can't hear me? With me, to my left 11 today, is Sara Brock, who is co-counsel. She joined 12 OGC in August of 2001 as an underlaw graduate in our 13 underlaw graduate program, and she has just, it's a 14 rotational program. She just joined our office early 15 in March of, just a month ago.
16 And also with me today is, on my right, is 17 Victor Nerses, you may remember as the project manager 18 for Millstone Unit 3 and NRR, and to Ms. Brock's left 19 is Antone C. Sirney, who is the resident inspector, 20 senior resident inspector at Millstone Unit 3, and 21 he's also previously filed affidavits in this matter 22 and was with us for the oral argument in June 2000.
23 Also with us, but not at counsel table, is 24 Martha Williams, who is in NMSS. She's a 25 statistician, and she is an NCNA inspector. She is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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705 1 the NCNA inspector who was a member, or one of the 2 members, of the team that conducted the special 3 inspection at Millstone Unit 1 in October of 2001 of 4 the FRAP and the root cause assessment.
5 I think that's everybody. I don't think 6 I've missed anybody. I think that's everybody.
7 CHAIRMAN BECHHOEFER: Was she part of the 8 01 investigation?
9 MS. HODGDON: No. She was the special 10 inspection team.
11 CHAIRMAN BECHHOEFER: Oh, okay.
12 MS. HODGDON: She is an NCNA inspector.
13 She's one of the authors of the inspection report. I 14 think all of us have relied, for some reason or 15 another, on that report that was published on February 16 26th and forwarded to the licensee on February 27th of 17 this year.
18 CHAIRMAN BECHHOEFER: Ms. Burton?
19 MS. BURTON: Yes. Good morning. I'm 20 Nancy Burton. I'm representing the intervenors here, 21 the Connecticut Coalition against Millstone and the 22 Long Island against Millstone, and present today is 23 Mr. Joseph Besade. He is the secretary of the 24 Connecticut Coalition against Millstone, and he has 25 also provided a declaration in this matter.
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706 1 I just wanted to note for the record that 2 I seem to be sitting closest to a recreational area 3 here at this hotel which seems to be a swimming pool 4 in which some gaiety is occurring, and I would just 5 like to note that it, at a certain point, seemed to 6 have almost reached a point of criticality of noise, 7 but it was cheerful noise, and I will do my best to 8 try to filter out that sound as we proceed.
9 Thank you.
10 CHAIRMAN BECHHOEFER: Mr. Besade, would 11 you like to identify yourself for the record since 12 you're not sitting at the table?
13 MR. BESADE: Joseph Besade, Connecticut 14 Coalition against Millstone, whistleblower at 15 Millstone, licensed master plumber and steamfitter.
16 I've been around for 40 years in the Town of 17 Waterford. I've watched the plants come up through.
18 Now I want to see them closed.
19 Thank you.
20 CHAIRMAN BECHHOEFER: Are there any 21 preliminary matters that any party wishes to raise 22 before we get into the substance of the presentations?
23 (No response.)
24 CHAIRMAN BECHHOEFER: Seeing none, I'd 25 turn to Ms. Burton. You're first. We've allocated NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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707 1 approximately an hour for the intervenors, followed by 2 Dominion Nuclear, an hour, and then an hour for the 3 staff, which will probably be after lunch, and we'll 4 have rebuttal for more than an hour.
5 MS. BURTON: Perhaps I will be shorter 6 than one hour in my original-7 CHAIRMAN BECHHOEFER: Oh, that's 8 permissible-9 MS. BURTON: -- my initial, but I just 10 wonder if it might be possible to reserve some of that 11 time, given the schedule that you have outlined, if it 12 seems appropriate for the rebuttal.
13 CHAIRMAN BECHHOEFER: Well, do you think 14 you'll need more than an hour? We've already 15 allocated you an hour for rebuttal.
16 MS. BURTON: Well, I think I'd be more 17 comfortable giving up some of the initial time if I 18 could potentially reserve some of it for later.
19 CHAIRMAN BECHHOEFER: We don't have a 20 problem with that.
21 MS. BURTON: Thank you.
22 CHAIRMAN BECHHOEFER: But you're welcome 23 to start.
24 MS. BURTON: Okay. Yes, thank you. Yes.
25 Good morning again. Nancy Burton representing the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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708 1 petitioning intervenors here in these proceedings at 2 which we are requesting a full evidentiary hearing on 3 the issues that pertain to the contention that the 4 Board, one of the contentions that the Board accepted 5 in the earlier proceedings, that concerns the 6 application of administrative controls with respect to 7 controlling criticality in the spent fuel pools at the 8 Millstone Nuclear Power Station, and we are addressed 9 to all of those pools because they have an interface 10 and an interconnection here.
11 There is a substantial dispute as to 12 material facts which can only be resolved 13 appropriately through a full evidentiary hearing, and 14 we are, therefore, entitled to that opportunity.
15 We have, essentially, three questions that 16 we raise at this stage of the proceedings, and the 17 questions are as follows:
18 The first one is this. The question is, 19 When does the energy level taken to create a paper 20 mountain in these proceedings equal the energy that is 21 being given off and will be in the future from two 22 missing high level radio active spent fuel rods, and 23 is there a point when that energy level will be equal 24 to the energy being emitted by those spent fuel rods, 25 and is there a point under law that will make it all NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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709 1 right at that point, if the rods are never found?
2 That's the first question for these proceedings.
3 The second question is, of course, Where 4 are the rods? And perhaps there will be an answer to 5 that, and we will know, before today's proceeding is 6 out, where the rods are.
7 And the third question is, Why wasn't the 8 fact of the missing rods disclosed during the earlier 9 portion of these proceedings when we went through a 10 rather intensive time limited discovery process, and 11 we, specifically, asked for all information at the 12 entire station concerning failures of controls over 13 movement of spent fuel at the Millstone Station?
14 MR. KELBER: Excuse me. Is that a direct 15 quotation from your interrogatory? I do not have your 16 interrogatory.
17 MS. BURTON: No, it is not, Dr.-
18 MR. KELBER: Well, do you-19 MS. BURTON: -- Kelber-20 MR. KELBER: -- have the exact quotation?
21 MS. BURTON: Right in front of me, at this 22 moment, no, I do not, but it is, certainly, part of 23 the voluminous record-24 MR. KELBER: Yes, no, we'll find it-25 MS. BURTON: -- of the proceedings, but we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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710 1 did ask that question, and just to go back to that for 2 a moment because that aspect is, thank you, critical 3 here because we are here under proceedings which are 4 very limited and constrained by the regulations in 10 5 CFR, but when we went through that process, we did, 6 specifically, ask the licensee to produce all records 7 and all incidents of fuel errors in movement, and we 8 received, in response, from the licensee, if I recall 9 correctly, eleven specific episodes of fuel errors in 10 response to that request, and none of those errors 11 related in any way to this extraordinary error of the 12 failure of the licensee to account for high level 13 radioactive spent fuel at this facility for a period 14 of several decades, during which we had understood the 15 licensee was under close scrutiny and monitoring by 16 various agencies, including, of course, the United 17 States Nuclear Regulatory Commission.
18 CHAIRMAN BECHHOEFER: Ms. Burton, of 19 course, at the time of your interrogatory, at least as 20 far as we know, they had no, the Dominion or NNECO, 21 had no knowledge of the missing rods, so is your, are 22 you really saying that when the obtained such 23 knowledge or suspicion, perhaps as early as, according 24 to affidavits before us now, September, I guess, in 25 2000, they should have reported it at that time; is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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711 1 that what you're claiming?
2 MS. BURTON: I believe that the rules of 3 discovery in administrative proceedings, and those 4 rules are not, of course, confined to proceedings 5 before this Board, they are, they have application to 6 all administrative proceedings, do provide that if 7 information becomes known to a party who is under a 8 valid discovery request, and such information is 9 material to the proceedings and could affect the 10 outcome, that there is a burden on the part of that 11 party to come forward to disclose the information 12 during a proceeding.
13 Now, we know, in hindsight, that this body 14 has determined that the information of the missing 15 fuel rods did rise, in its view, to the level of 16 materiality in these proceedings. That is why we are 17 here today, because the Board determined to reopen the 18 proceedings on this issue.
19 Therefore, it seems very clear that when 20 the licensee and/or the staff first became aware that 21 this was an issue, and we know from this voluminous 22 record that this had become an issue, and they were 23 well aware of it, while the proceedings were going on, 24 prior to the Board's decision, if I'm not mistaken, in 25 October-NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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712 1 CHAIRMAN BECHHOEFER: October 26th, to be 2 precise.
3 MS. BURTON: October 26th, yes, and 4 neither the licensee, nor the staff, came forward to 5 alert this Board or the intervenors as to that 6 material issue.
7 So, yes, what I am saying is there was a 8 burden, and it is a continuing burden, as long as 9 these proceedings are underway at this level, for the 10 licensee to come forward and to supplement its 11 discovery responses to provide the information that we 12 requested.
13 Now, of course, I am addressing this issue 14 in the context of what occurred in the earlier 15 discovery proceedings, and most particularly, that 16 involved the questioning of Mr. Michael Jensen, who I 17 understand is not here today. He was deposed.
18 He was selected as a deponent because he 19 filed an affidavit in which he indicated he was 20 authoritative on the issue of fuel movement at 21 Millstone, and, in fact, as I recall, it was over his 22 affidavit that there was a disclosure in the earlier 23 proceedings of eleven fuel errors. He was questioned 24 about those in the earlier proceedings, and in those 25 proceedings, of course, we have submitted to you the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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713 1 full transcript of his deposition.
2 He had been selected by the licensee to 3 provide authoritatively the full scope of facts known 4 to the company at that time with respect to fuel 5 failures and errors and administrative controls with 6 respect to fuel, and he did not disclose it.
7 He did not supplement his disclosure 8 later, and that was a clear mistake, and, clearly, 9 under the rules of administrative practice, we believe 10 that the time is not too late for a full disclosure to 11 be made, as well as -- for a full disclosure to be 12 made.
13 So, having said that, if I answered your 14 question -
15 (Pause.)
16 MS. BURTON: On the, addressing the second 17 question that I formulated, as far as where are the 18 missing rods, in the event that potentially we don't 19 have an answer to that today, I think that that will 20 be very telling in terms of the culture at Millstone 21 which is, of course, the underlying issue in our 22 Contention 4 as to, as the Board Chairman has put it, 23 the commitment of the licensee to administer, to carry 24 out administrative controls and procedures at the 25 Millstone Station.
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714 1 Now, we know that there has been a passage 2 of authority from the Northeast Nuclear Energy Company 3 to the Dominion Nuclear Connecticut, Inc., an entity 4 that was created after another company was a winning 5 bidder in the recent sale of the company.
6 We know that there has been a significant 7 transition in the intervening time from leadership 8 positions of the licensee, and we know from what has 9 been disclosed in this discovery process that there is 10 a continuing failure to face the facts and be 11 accountable to the NRC, to the public and to the 12 intervenors in these proceedings that has to do with 13 the entire course as, as it has followed its way 14 through in these proceedings in which we have now 15 learned that there was awareness of these missing rods 16 for quite a period of time while these proceedings 17 were underway.
18 And there was a failure during the very 19 period that there was a proposal to transfer ownership 20 and operation of Millstone from Northeast Nuclear 21 Energy Company to Dominion when this information 22 should have been reported to the U.S. Nuclear 23 Regulatory Commission.
24 Now, my understanding of the present 25 status is that the NRC is considering what to do, if NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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715 1 anything, about this late disclosure which is, 2 apparently, not contested. That has been clear 3 violation of law.
4 There is no question but that, in the view 5 of the intervenors, there was a delay in reporting the 6 proceedings for reasons not related to protection of 7 the public health and safety, but other reasons, 8 reasons which we believe relate to the culture at 9 Millstone and its continuing inability and disinterest 10 to put public health and safety first, and therefore 11 -- and thereby, follow the laws that we have, which 12 may not be as adequate to the task as they could be, 13 but nevertheless, to follow the laws, the regulations 14 and the procedures that have been adopted in order to 15 protect the public health and safety.
16 It seems that these very proceedings have 17 highlighted the continuing failure, not just of the 18 licensee, but the -- the predecessor licensee, but the 19 current licensee, and that gives rise to concern about 20 the present culture at the Millstone Nuclear Power 21 Station.
22 Now, we know that the plant is trying to 23 establish records of longevity of operation such that 24 it may highlight to the public some sense that things 25 are all well and good at Millstone because the plant NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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716 1 is able to operate for a long period of time without 2 shutting down.
3 Well, we have submitted to these 4 proceedings evidence that suggests, once again, that 5 this pattern of conduct of running these plants to try 6 to achieve records and to try to achieve headlines 7 giving the public the impression that all's well are 8 very misleading and very dangerous.
9 CHAIRMAN BECHHOEFER: Ms. Burton, let me 10 just pinpoint your claims at this point. The 11 affidavit of Mr. Meekhoff, who I guess is here today, 12 but be that as it may, states that on or about, I'm 13 reading this from Page 6 of his affidavit that's filed 14 currently, Page 6, Paragraph 17, he states that on or 15 about September 12, 2000, a visual inspection was made 16 of the northwest corner of the spent fuel pool and of 17 the top fuel burn hole MS-557 with an underwater 18 camera.
19 Although the two fuel rods were not found, 20 the results of this inspection were not sufficiently 21 conclusive to any degree that rods were still in the 22 Unit 1 spent fuel pool.
23 Do you think that that particular judgment 24 is incorrect and that, at least as of September 12th, 25 the company should have made some sort of a report NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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717 1 either to the NRC, and I'm not sure about whether 2 their LER requirements were satisfied or not, but they 3 did submit an LER eventually, but to this Board which 4 was in session at the time; do you think a report of 5 that sort should have been made at that time, 6 September 12th? That's the date we have. That's the 7 only specific date, I think, we have.
8 MS. BURTON: This was September 12, 2000?
9 CHAIRMAN BECHHOEFER: Two thousand.
10 MS. BURTON: Right.
11 CHAIRMAN BECHHOEFER: Yes.
12 MS. BURTON: Well, as I recall the-13 CHAIRMAN BECHHOEFER: I'm just reading it 14 from the affidavit.
15 MS. BURTON: Yes.
16 CHAIRMAN BECHHOEFER: Now, we don't know 17 whether there was prior knowledge or not, but-18 MS. BURTON: Well, clearly, there is a 19 conflict in these proceedings involving the 20 observations that have been made visually and by 21 camera in the Unit 1 spent fuel pool, and the 22 intervenors were led to understand, by Mr. Jensen, 23 when he was deposed, and, again, his deposition is 24 part of these -- the transcript is in these 25 proceedings.
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718 1 We were led to believe by him that he had, 2 in fact, been in charge of a visual and video 3 inspection of the spent fuel pool at Unit 1, and he 4 was, therefore, in a position to pronounce at that 5 time that there was nothing about that visual 6 inspection that would have given rise to any 7 information that should have been presented in 8 discovery that was not.
9 I think that we have some potentially 10 conflicting facts here, and they have to do with the 11 ability of the company to, even at this stage, in the 12 year 2002, perform an investigation of its own 13 facility.
14 This is a facility, the spent fuel pool at 15 Unit 1, that we understand has potential to cause 16 great harm to this community, and we would think that 17 this licensee and its predecessor would have the 18 ability, after all these millions of dollars have been 19 spent, all these plateaus of paper have been created, 20 all this effort has been put into addressing this 21 issue, and, yet, it can't tell us today that it's able 22 to inspect its own spent fuel pool to the degree that 23 it can tell us one way or another if there's a missing 24 spent fuel rod in it. We find this almost 25 unbelievable.
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719 1 MR. KELBER: Ms. Burton, I think I 2 understand what you're saying here, but I don't know 3 that you've answered Mr. Bechhoefer's question.
4 I think that the question was related to 5 the exercise of judgment on September 12th of the year 6 2000 that it was not necessary simply because they had 7 not been able to find, to find the missing pins in the 8 fuel assembly box that was assigned, that was 9 supposedly assigned, and at that point, it was not 10 necessary to go to 5-4.
11 Now, that was, now the question is whether 12 that was, I think Mr. Bechhoefer is asking you whether 13 the judgment that was made then was correct.
14 MS. BURTON: Not to report it?
15 CHAIRMAN BECHHOEFER: Not to report it, 16 yes.
17 MS. BURTON: Yes. Well, we believe that 18 we are in an area of disputed fact where we are 19 entitled to have a full evidentiary hearing because 20 that, a decision not to report that can't be isolated 21 from all other laws, the rules, the standards, the 22 policies and the regulations that govern keeping 23 accountability of spent fuel pool, maintaining 24 accountability and being sure that there's a context 25 whereby a level of confidence can be achieved that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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720 1 things don't reach the level of what they did on 2 September 12, 2001, such that there was a, there might 3 have been any factual vacuum or unawareness that there 4 was, there had been a failure of accountability with 5 the rods.
6 MR. KELBER: In other words, the, your, 7 are you, is it your statement that as soon as they 8 noted some discrepancy, no matter what it was, they 9 should have told us?
10 MS. BURTON: I don't believe that was my 11 statement, but if you could perhaps refine that 12 question a bit.
13 MR. KELBER: Well, what we're still trying 14 to get to is, is, is Mr. Bechhoefer's question.
15 Should they, on September 12th, having failed to 16 identify any, the pins that were supposedly in that, 17 that box, have notified the Board?
18 MS. BURTON: I'm sorry. Was it Judge 19 Bechhoefer's question to notify the Board-20 MR. KELBER: Yes-21 MS. BURTON: -- or notify the NRC? I 22 thought it was the NRC.
23 MR. KELBER: The Board.
24 CHAIRMAN BECHHOEFER: Mine was the Board.
25 MS. BURTON: Pardon me.
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721 1 CHAIRMAN BECHHOEFER: Mine was the Board.
2 MS. BURTON: I see.
3 MR. KELBER: Should they, at that point, 4 on September 12th, have notified the Board?
5 MS. BURTON: I believe that, at that point 6 they should have, certainly, notified the intervenors 7 in this proceeding because-8 MR. KELBER: Well, I hope they would 9 notify the Board, too.
10 MS. BURTON: Well, they would notify the 11 Board indirectly through the petitioners because, at 12 that point, at least, by that point, they would have 13 put the intervenors on notice that their earlier 14 discovery information was incomplete and potentially 15 inaccurate, and potentially, at that point, the 16 proceedings should have been reopened so that there 17 could have been a further development of discovery 18 pertaining to what clearly would be a major issue in 19 the proceedings.
20 MR. KELBER: Now, this was, this was the 21 day, September 12th, when they, on a vis -- using a 22 camera, a standard technique, they couldn't find the 23 pins.
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722 1 ago when my wife complained that using her -- on 2 visual inspection, she could not find a favorite pair 3 of black slacks. Should I, at that time, have called 4 the police? We did find those slacks, by the way, but 5 it took us some time. But isn't there a question of 6 judgment here?
7 MS. BURTON: I'm struggling to relate your 8 wife's slacks to missing a spent fuel rod.
9 MR. KELBER: Well, let me put it this way.
10 I have been in the business, and sometimes, and I have 11 been in the household for some time, too, and 12 sometimes an initial circumstances does not lead to a 13 conclusion that you have, for example, drawn that 14 there has been a violation.
15 MS. BURTON: Well-16 MR. KELBER: The fact that, the fact that 17 the slacks were missing was not an indication that 18 they had been stolen. The fact that the pins located 19 at that time may not, in the individual's judgment, 20 and I'm using that word carefully, have been an 21 indication that they were lost.
22 MS. BURTON: We were led to believe, 23 through Mr. Jensen's testimony, that there had been 24 adequate video and other analysis of what was present 25 in the spent fuel pool, if I'm not-NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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723 1 MR. KELBER: Well, what about my 2 question-3 MS. BURTON: -- mistaken, months before-4 MR. KELBER: Well, answer my question of, 5 Should they, on the afternoon of September 12th, have 6 notified the Board and other parties?
7 MS. BURTON: I don't believe there's any 8 question of that.
9 MR. KELBER: Okay.
10 MS. BURTON: Given the context-11 MR. KELBER: That's fine. All I wanted to 12 get from you was whether that is your belief.
13 MS. BURTON: Given the context.
14 MR. KELBER: Okay.
15 MS. BURTON: That can't be taken out of 16 context.
17 MR. KELBER: All right, all right.
18 CHAIRMAN BECHHOEFER: Ms. Burton, let me 19 follow up. There is an NRC decision that's, I 20 believe, on point which says that, at least, the 21 Board, maybe not the NRC staff, maybe a formal report 22 wasn't required, I don't know, I won't say, but 23 there's a decision some time ago, it's not a recent 24 decision, September 6, 1973, it's ALAB-143, and it's 25 in the matter of McGuire which I'm sure various NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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724 1 parties here are familiar with.
2 I have copies of the decision, but not 3 enough to pass around to everybody. It's, let me see 4 if I can -
5 (Pause.)
6 CHAIRMAN BECHHOEFER: Let me just give you 7 the citation.
8 MR. KELBER: Well, while Judge Bechhoefer 9 is doing that, let me read some words that are in some 10 of the material we've prepared on this.
11 It says, "Before submitting information to 12 the Board, pursuant to its notification obligations, 13 a licensee or applicant is entitled to a reasonable 14 period of time for internal review of the documents 15 under consideration wherever an obvious exception 16 exists for information that could have an immediate 17 effect on matters currently being pursued at hearing 18 or that disclose possible serious safety or 19 environmental problems requiring immediate attention."
20 So there is some question of judgment here 21 as to whether or not information could have an 22 immediate effect or that it has possible serious or 23 safety or environmental problems arising from it, and 24 your judgment, your conclusion is based on the idea 25 that it does have an immediate effect; is that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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725 1 correct?
2 MS. BURTON: I'm sorry. That what has an 3 immediate effect?
4 MR. KELBER: The suspicion that the rods 5 might be missing has an immediate effect on the 6 matters currently being discussed by the Board at that 7 time.
8 MS. BURTON: Could you, Doctor, you're so 9 sensitive to the English language, I know, if you 10 wouldn't mind refining that question?
11 MR. KELBER: Is it your statement that the 12 observation that the fuel pins could not be located 13 was such that it could have had an immediate effect on 14 the matters that were under consideration by the Board 15 at that time?
16 MS. BURTON: That would seem to be fairly 17 self-evident.
18 MR. KELBER: That's your statement, that's 19 your position?
20 MS. BURTON: Yes.
21 MR. KELBER: Thank you.
22 CHAIRMAN BECHHOEFER: Let me read you from 23 the same document, one paragraph earlier. This 24 document, by the way, which I prepared by xeroxing a 25 staff digest to relevant cases, a recent version of it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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726 1 which was issued in January, I believe, and that's 2 what this comes from. I have copies; however, I don't 3 have enough for everybody.
4 But it says, "If a licensee or applicant 5 has a reasonable doubt concerning the materiality of 6 information in relation to its Board notification 7 obligations or duties, under Section 186 of the Atomic 8 Energy Act, the information should be disclosed for 9 the Board to decide its true worth."
10 That appears in, well, that, that's from a Three Mile 11 Island Decision based on the McGuire Decision that I 12 just read. By the way, the citation to McGuire is 680 13 C, no, sorry, yes, 680 C 623. That was that 1973 14 decision.
15 (Pause.)
16 MR. KELBER: Judge Bechhoefer has the 17 material available for the parties' inspection. We 18 don't have enough copies to circulate-19 CHAIRMAN BECHHOEFER: For everybody-20 MR. KELBER: -- for everybody.
21 MS. BURTON: Perhaps, might I suggest that 22 we perhaps see if this facility could run off some 23 copies for us, if we might, if we recess at some 24 point?
25 MR. KELBER: Why don't we pursue that at NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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727 1 the break?
2 MS. BURTON: Thank you.
3 (Pause.)
4 CHAIRMAN BECHHOEFER: You may proceed with 5 the remaining, you know, the rest of your 6 presentation.
7 MS. BURTON: Yes. I'm just wondering, how 8 are we doing for time?
9 CHAIRMAN BECHHOEFER: Well, it's about-10 MR. COLE: You've used less than a half an 11 hour.
12 MS. BURTON: Okay. I'd like to address 13 the point that Judge Bechhoefer has been raising 14 concerning the immediate effect and the materiality of 15 information because what makes these proceedings so 16 extraordinary is that they involve the failure to 17 account for highly radioactive special nuclear 18 material, and, of course, that takes on all kinds of 19 significance and has since recent tragic events in our 20 nation.
21 And we know that, and, in fact, the NRC 22 Chairman, himself, Mr. Meserve is aware of, and there 23 have been many, many comments about the fact that 24 there has, at Millstone and elsewhere, been a loss of 25 the ability to maintain accountability of nuclear NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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728 1 materials, and that has become ever more serious, 2 certainly, in the public's mind since these 3 proceedings began a couple of years ago.
4 We understand that the missing rods do 5 contain plutonium, they contain uranium 235, and these 6 are materials that can be diverted to bad purposes by 7 people who are out to do harm.
8 So, with respect to immediate effect and 9 materiality, we believe that, in these proceedings, 10 this body should consider very, very closely this 11 business of the failure of the licensee to come 12 forward forthrightly with the information that we were 13 entitled to obtain through discovery at the first, at 14 the first opportunity.
15 And, certainly, the fact that there were 16 later investigations of the pool after we had received 17 this communication from Mr. Jensen as to his belief 18 that all was well at that time at Unit l's spent fuel 19 pool, I think, really, the Board is best advised to 20 consider that issue here as its primary issue and the 21 related issues giving rise to the need for an 22 evidentiary hearing on disputed facts.
23 Clearly, the issue of the culture at 24 Millstone is the pervasive issue. The Board 25 recognized Millstone's history of failure to maintain NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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729 1 its accountability and adherence to administrative 2 controls in considering the contentions that we 3 presented and in rendering the decision that it did in 4 October of 2000; however, the Board's confidence in 5 the licensee's ability to do so, we believe, should 6 have been, if, in fact, it has not been, shaken by the 7 disclosures as to the licensee's failure to account 8 for its missing fuel.
9 We need to keep in mind that this 10 information came out late, that is, to the public 11 during the period of time that a transfer was being 12 contemplated between the predecessor licensee and 13 Dominion, and I know that an effort will be made here 14 and has been, and will in the future, to suggest to 15 this Board that the plague of poor culture that 16 Northeast Utilities harbored for so many years at 17 Millstone went away when another company came in and 18 took over, but we know from the way these facts have 19 been developed and the present posture of the present 20 licensee that there really is no reason for this Board 21 to have the confidence that it indicated that it had 22 when it rendered its decision in October of 2000.
23 We are amazed that, in fact, the present 24 licensee would even take the step of formally asking 25 the U.S. Nuclear Regulatory Commission to rewrite the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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730 1 history of Millstone by taking out the word "nuclear" 2 from historical nuclear licensing documents.
3 We have referenced that in Mr. Besade's 4 affidavit. I'm not sure if the NRC has fallen for 5 this one yet, but as you're aware, Dominion Nuclear 6 Connecticut, Inc., has petitioned the NRC to remove 7 "nuclear" from the name, the Millstone Nuclear Power 8 Station, and beyond that, to go back to basic legal 9 licensing documents and take out the word "nuclear."
10 I bring this up because I think it 11 pertains to these proceedings and the culture that the 12 present owner seeks to foster at this facility. If 13 this facility does not want to look nuclear in the 14 face, then how is it going to be expected to foster a, 15 an environment where workers will believe it's 16 necessary to keep public health and safety related to 17 nuclear issues at the forefront?
18 It seems to be so symptomatic of the poor 19 safety culture that developed, the safety culture that 20 eroded so seriously at Millstone, to the extent that 21 the entire station had to be shut down for two years, 22 and one of these reactors never even got up again 23 after that. That was Unit 1.
24 It seems extraordinary that this company 25 should take that position now and try to consign away NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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731 1 to the dust bin of history that word "nuclear."
2 The present company needs to face up to 3 these issues, but was part, we believe, of this effort 4 to keep the public unaware, and the NRC unaware, and 5 the petitioners here unaware, of the serious issue of 6 the missing rods.
7 CHAIRMAN BECHHOEFER: Ms. Burton, would 8 your arguments here be influenced, in part, by the 9 fact that Dominion appears to be using the same people 10 as worked for NNECO in the past?
11 MS. BURTON: Well, I'm not so sure that 12 that is correct.
13 CHAIRMAN BECHHOEFER: Well, some-14 MS. BURTON: What I do recall-15 CHAIRMAN BECHHOEFER: -- some of them 16 appear to be the same.
17 MS. BURTON: I'm sure that's true.
18 CHAIRMAN BECHHOEFER: Right.
19 MS. BURTON: And it appears to be true 20 that there are people who still work for, who still 21 work at Millstone for the successor purchaser, such as 22 Mr. Jensen, and I'm not trying to isolate Mr. Jensen 23 here, but we did get to know him a bit during his 24 deposition, and we did get to know him because he was 25 the individual the predecessor company put forward as NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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732 1 being authoritative.
2 In fact, it may be that that is part of 3 the problem, that the people associated with this 4 historical failure, with the failure which the NRC has 5 found to report the missing rods timely, that the same 6 people who have been part of that are the same people 7 who were there before, so that really doesn't give us 8 confidence.
9 We also know that there are other people 10 who were in high positions at Millstone when we first 11 began this proceedings. It was suggested, as I 12 recall, in these proceedings that there would be a 13 continuation, there would be continuity, of such 14 people, but we know that certain high level people 15 aren't there anymore, such as a Mr. Mike Brothers. I 16 believe that he was a, in a high position at Millstone 17 at the outset of these proceedings, and he has left, 18 and I think he left just before the auctioning process 19 that involved the transfer of this company to Dominion 20 Nuclear Connecticut, Inc.
21 We know, for instance, that the chief 22 nuclear operating officer, and I probably have his 23 title not exactly correct, but Mr. Olivier, Lee 24 Olivier, I believe that he occupied the top nuclear 25 position at Millstone when these proceedings began, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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733 1 and he's not there anymore. He's been replaced by 2 somebody else.
3 I'm not exactly sure what that means in 4 terms of these proceedings, but you're hearing it both 5 ways. You're hearing, both, that the responsible 6 people from the predecessor company are still there, 7 so they will make sure that things are, that there's 8 continuity, but at the same time, we're finding out 9 that people who were at the company before and are 10 there now may well have been part of the problem.
11 So, I don't believe that this Board should 12 make any particular findings as to that, and, in fact, 13 this issue, itself, presents an issue that I think can 14 only be fully and fairly aired through a full 15 evidentiary proceedings.
16 For instance, information about people who 17 were involved in the whole process of discovering, and 18 I'll put that in quotes, that there were missing spent 19 fuel rods, the whole decision making process that 20 involved not telling anybody about it right away, the 21 process that involved those who told people not to 22 tell about it, knowing that there are certain legal 23 requirements that very clearly set forth parameters 24 during which this must happen, I think that that is an 25 issue that should be fully explored at an evidentiary NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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734 1 hearing because it goes to the issue of the ability 2 and willingness of the present owner and operator of 3 Millstone to follow administrative procedures which 4 have to be precise in order to avoid criticality in 5 the spent fuel pools.
6 And to suggest that if there are people 7 there who are in positions of authority, and there are 8 people who, at Millstone, are subject to that 9 authority, and in the past, in this very area, have 10 been circumscribed, for whatever reason, from coming 11 forward to doing what they are required to do under 12 law, then I think that that information which could be 13 developed only at an evidentiary proceeding would lead 14 this Board to have to conclude, under the facts and 15 circumstances, that this license amendment should not 16 be granted because this licensee cannot be accorded 17 the level of confidence that is required to allow a 18 substitution of additional complex administrative 19 controls for physical controls and barriers to guard 20 against criticality of the spent fuel pools.
21 So, I think that we are in this are of 22 human issues in a critical area in terms of this 23 Board's responsibilities in this proceeding, and I 24 don't believe that either the licensee or the staff 25 has provided this body, in any of this, with NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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735 1 information that suggests that the people who were 2 involved before in what could be, and probably was, 3 violation of law, that those same people have been in 4 any way put on notice that they shouldn't continue to 5 carry out that kind of conduct in the future.
6 CHAIRMAN BECHHOEFER: Ms. Burton, I've 7 heard the question now, different, somewhat different, 8 topic. Does the circumstance that Dominion is now 9 using two separate programs to keep track of fuel 10 rods, fuel bundles, one, a paper system and the other 11 a-12 MR. COLE: Computerized-13 CHAIRMAN BECHHOEFER: -- computerized 14 system, instead of the fact they only had a paper 15 system for Millstone 1, this is my understanding now, 16 does that make a difference, the fact that they now 17 have a computerized program supplementing the paper 18 program or in addition to the paper program?
19 MS. BURTON: Well, what I think we need to 20 understand is, Does Dominion consider this fuel to be 21 nuclear fuel?
22 CHAIRMAN BECHHOEFER: I don't know.
23 MS. BURTON: Well, the body here, the 24 Board, may make that assumption, but we're having a 25 hard time understanding how this new company regards NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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736 1 its role at this plant, if it's just a plant, and it's 2 not a nuclear plant, and we understand that there may 3 be new computer technology or old computer technology 4 that was not implemented before, but until the company 5 is in a position to recognize, which it, apparently, 6 is not today, that it operates a nuclear power plant, 7 they can set up any computer system in the world, and 8 that isn't going to satisfy what this body needs to 9 have the company provide to it to satisfy it that it 10 is committed to nuclear health and safety.
11 CHAIRMAN BECHHOEFER: Well, I can assure 12 you-13 MS. BURTON: And not simply keeping 14 computer records in some room at some location at the 15 facility.
16 CHAIRMAN BECHHOEFER: Well, I can assure 17 you though that if they remove the title "nuclear" 18 from the title of their plant, they're still going to 19 be bound by the rules applicable to nuclear 20 facilities.
21 MS. BURTON: Well, I think the company has 22 been bound to those rules for a long time.
23 CHAIRMAN BECHHOEFER: That's correct.
24 MS. BURTON: And they haven't followed 25 them all the time, and I think that's why we're here.
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737 1 CHAIRMAN BECHHOEFER: I'm just trying to 2 say the name change won't affect their, their-3 MR. COLE: Obligations-4 CHAIRMAN BECHHOEFER: -- obligations, 5 right, under NRC regulations.
6 MS. BURTON: Well, we're not so sure about 7 that because we think that if, at Millstone, if you're 8 a worker at Millstone, and you used to say that you 9 worked at the Millstone Nuclear Power Station, but you 10 can't say that anymore, you only work at the Millstone 11 Power Station, then I think we need to recognize that 12 there's something going on here that may be somewhat 13 subtle and may, in some way, interfere with the 14 ability and willingness of the, of the good folks at 15 Millstone who are out there trying to protect our 16 health and safety because that name change business 17 really, I believe, has potential to have a chilling 18 effect on the workers who are there.
19 And the computer technicians, they say in 20 their computer Millstone Power Plant, and not 21 Millstone Nuclear Power Plant, and if that's what it 22 says, they may approach that computer in a different 23 way than they would if they knew they were sitting at 24 a computer and the burden of health and safety is on 25 them because this is a nuclear power plant.
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738 1 It's different from any other plant, so I 2 don't think that we can so easily separate out and not 3 pay attention to this maneuver on the part of Dominion 4 to take "nuclear" out of the name of Millstone.
5 But in answer to your question about 6 adding a, adding some, a new computer system, that's 7 all very nice, but I don't think that that eliminates 8 the issues before the Board.
9 CHAIRMAN BECHHOEFER: You may continue.
10 MS. BURTON: But just-11 CHAIRMAN BECHHOEFER: You're not going to 12 be able to reserve much time because you've only got 13 ten more minutes.
14 MS. BURTON: Okay. Well, I just on that 15 computer system, we do know that in that remarkable 16 refueling outage, I think it was six at Unit 3, there 17 was, of course, heavy reliance on a computer system, 18 as I recall, and that computer system proved to be 19 extraordinarily unreliable.
20 It kept breaking down. It kept 21 interfering in the entire process of the refueling 22 outage. The engine, it was driving engineers crazy.
23 It was driving them nuts, and they were making 24 comments in their logs such that the computer system 25 had lost its brains.
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739 1 The computer was driving the failure of 2 the refueling outage to proceed in a safe way. I 3 think there were no fewer than six breakdowns of that 4 system, so it's all very well to try to substitute 5 proper physical barriers to control and prevent 6 spontaneous criticality in the spent fuel pools, but 7 computers alone won't do that.
8 Fundamentally, what you need are people 9 who are committed to carrying out the law and doing 10 what has to be done precisely in accordance with 11 administrative procedures, and there we are again back 12 at the old bugaboo of making the job harder for the 13 workers to do because you're making their requirements 14 more complex, and in a way, it almost seems to be a 15 mistake for the company to come up with this new 16 system of having computer duplicates rather than 17 perhaps focus on what it can do to achieve what needs 18 to be achieved in terms of training and addressing the 19 human issues in the spent fuel pool activities.
20 So, at this point, if the Board-21 CHAIRMAN BECHHOEFER: Well, I'd like to 22 just follow up. How do you relate the Unit 2 LER that 23 you've relied on to -- within the scope of your case?
24 MS. BURTON: Yes. This LER which concerns 25 the "discovery" at Millstone Unit 2 on October 22, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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740 1 2001, as to a very, what seems to us to be a 2 potentially very serious problem, historical problem, 3 involving potentially movement of fuel and refueling 4 activities, this LER relates very specifically to the 5 issues that we raise here for several reasons.
6 One, of course, Unit 2 can't be isolated 7 from Millstone. It's one of the three reactors. It's 8 part of the facility. The same people who are 9 responsible for Unit 2 are responsible for one, two 10 and three. That goes for the spent fuel pools.
11 We know that Unit 2 has had a lot of 12 problems and has a sketchy history, and we also know 13 that the predecessor company gave some serious 14 thought, when the plants were all shut down, beginning 15 in 1996, to whether it was in the realm of reason to 16 consider reopening Unit 2.
17 But this disclosure tells us that, not 18 that we're so surprised to hear it, but there have 19 been, for years, at that Unit 2 potentially very 20 safety related issues concerning fuel filtering, and 21 our reading of this tells us that, and this impacted 22 Southeastern Connecticut community, we have just be 23 very lucky so far that something didn't go wrong 24 because of the problem that has now been identified 25 that has been in existence historically for a very NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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741 1 long time.
2 Now, we know that historical problems came 3 to light, hundreds of them, maybe thousands of them, 4 at Unit 1 and 2 and 3 during the period of time that 5 Millstone had to be closed after the Time Magazine 6 article came out in 1996, and even with that, this 7 wasn't found at that time.
8 This is a "new" discovery. We don't 9 underst -- we're having a hard time trying to 10 understand how this could just have been found out or 11 discovered now, and it has to do with the very issue 12 which is the issue before this Board, the ability and 13 commitment of the company to maintain administrative 14 control to guard against criticality in the spent fuel 15 pools. They haven't done that at Unit 2.
16 There is a problem, apparently, 17 historically, with inadequate engineering at 18 Millstone, and that's not just Unit 2, that's Unit 1 19 and Unit 3, all together. There have been very 20 serious issues related to engineering at Unit 1.
21 Engineering deficiencies are implicated in the failure 22 of the company to maintain control over its spent fuel 23 pool.
24 So, we believe that the, this LER, in 25 fact, let me quote from it, "The root cause for the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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742 1 failure to identify heavy load paths is inadequate 2 engineering work practices in the Millstone 3 Engineering Department in the area of programs.
4 Now, we understand that today it's the 5 same Engineering Department that still runs these 6 programs for the whole station, so, therefore, for 7 this body to have the level of confidence that it 8 expressed in its October 2000 decision, that level of 9 confidence should be undermined by learning about this 10 problem at Unit 2.
11 And on that point, if I'm not mistaken, I 12 think the present company has tried to capture some 13 headlines, again, by saying that they've run for a 14 record long period of time or they approached that or 15 whatever, without saying at all anything about this, 16 and this issue of the LER, clearly, was not going to 17 be addressed until the time came for Unit 2 to shut 18 down for refueling, which it recently did. That's a 19 problem.
20 Why was the company operating Unit 2 and 21 not shutting it down prior to the scheduled refueling 22 outage to deal with this?
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743 1 barriers to protect the public from unapplied 2 criticality.
3 MR. KELBER: Ms. Burton-4 MS. BURTON: Yes-5 MR. KELBER: -- it seems to me that you're 6 raising really an issue which, while it pertains to 7 the scope of this floor, actually goes well beyond it.
8 Have you considered approaching the 9 Commission with a case regarding the safety culture?
10 Because you're raising an issue, very serious issue, 11 which goes well beyond the scope of this Board.
12 CHAIRMAN BECHHOEFER: I don't think so.
13 I would disagree with you-14 MR. KELBER: I mean, it bears on, it bears 15 on this case-16 CHAIRMAN BECHHOEFER: Yes. Well-17 MR. KELBER: -- but it goes, it bears on a 18 lot of other activities, too.
19 MS. BURTON: Well, my answer is I think 20 I'm agreeing with Judge Bechhoefer that that really is 21 close to the heart of what these proceedings-22 MR. KELBER: I don't argue that your case 23 goes to this issue, but does it go to other issues as 24 well?
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744 1 it does. I mean, if you don't have a culture at this 2 nuclear power plant, maybe they can't even say 3 "nuclear" anymore. I don't know.
4 But if you have a culture that is not 5 appropriate to address Unit 2 spent fuel issues, then 6 you don't think should have confidence that it's a 7 culture that is appropriate for addressing any issues 8 at all, and that's very serious, and that's led to-9 MR. KELBER: I agree-10 MS. BURTON: -- the plant being-11 MR. KELBER: I agree with you that, that 12 if that is the case, it is very serious. That's why 13 I asked the question.
14 CHAIRMAN BECHHOEFER: There may be 15 something broader than-16 MR. KELBER: Yes. I mean, in other words, 17 is there something broader than we can consider?
18 MS. BURTON: Well, I think what it does, 19 highlighting this does provide more fuel to the 20 argument that the intervenors are entitled to a full 21 evidentiary hearing here because this very serious 22 issue, if it's not addressed here, it may be harder to 23 address it elsewhere.
24 MR. KELBER: Okay.
25 MS. BURTON: I will-NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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745 1 MR. KELBER: I see your point. You would 2 want to use an evidentiary hearing to lay a 3 foundation; is that the idea?
4 MS. BURTON: To lay a foundation?
5 MR. KELBER: For a more, for a broader 6 case.
7 MS. BURTON: I'm not sure I'm following 8 you.
9 MR. KELBER: Well, you've made a very 10 serious charge that the safety culture is, essentially 11 deficient, and, of course, that involves all the 12 activities of the plant, not just this spent fuel pool 13 at Unit 3.
14 Now, all we can decide upon is a specific 15 amendment with respect to operations at the spent fuel 16 pool at Unit 3, but you're making a charge which goes 17 well beyond that, and I was wondering the extent to 18 which you are pursuing that.
19 MS. BURTON: All I can say is that we are 20 pursuing issues which we believe are pertinent to 21 these proceedings. What may happen outside of these 22 proceedings I can only speculate about, but I would 23 agree with you that the issue is serious and should be 24 addressed. Beyond that, I don't know-25 MR. KELBER: Well, no, what I was asking NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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746 1 you is, are you planning to address them, and I think 2 the appropriate body would be with the Commission?
3 MS. BURTON: At this time, I'm really not 4 prepared to respond to that.
5 MR. KELBER: Thank you.
6 MS. BURTON: Thank you.
7 (Pause.)
8 MS. BURTON: At this time, I would like to 9 conclude my opening remarks.
10 CHAIRMAN BECHHOEFER: Okay.
11 MS. BURTON: Thank you.
12 CHAIRMAN BECHHOEFER: We'll take a break 13 now for maybe 15 minutes, and then we'll be back.
14 (Off the record from 10:55 a.m. until 15 11:14 a.m.)
16 CHAIRMAN BECHHOEFER: Back on the record.
17 I guess, Mr. Repka, it's your turn.
18 MR. REPKA: Yes. Thank you, Judge 19 Bechhoefer.
20 My objection this morning is to be 21 concise. Dominion Nuclear Connecticut-22 CHAIRMAN BECHHOEFER: Well, you have an 23 hour-24 MR. REPKA: Thank you. I may or may not 25 use it all.
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747 1 CHAIRMAN BECHHOEFER: Okay.
2 MR. REPKA: Dominion Nuclear Connecticut 3 has filed a substantial document on the issues that 4 are before the Board. It includes the affidavits with 5 the views of six experts, and we feel that the written 6 filings adequately summarize our position, adequately 7 address the issues before the Board, and other than 8 repeat those arguments here this morning, there's very 9 little I can add to the record.
10 Having said that, I do want to address and 11 highlight a few of the key points. In addition, I 12 want to respond to some of the issues raised by 13 Ms. Burton already this morning.
14 Before I do that, however, as an 15 administrative matter, I need to make a couple of 16 corrections in the filing that was made to make sure 17 the record is absolutely 100 percent clear and 18 correct.
19 First, in the affidavit of Mr. McKenney, 20 which is Tab A in our filing, Paragraph 11, Page 4, 21 second line, there's a reference to a procedure, 22 EN-31022. The correct reference for that procedure is 23 SP-31022.
24 MR. COLE: F what?
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2 MR. REPKA: As in Sam Polo.
3 CHAIRMAN BECHHOEFER: Instead of EN, SP?
4 MR. REPKA: Correct, SP-31022. And I 5 believe that reference may appear a couple of places 6 in there. I have not highlighted them all, but 7 anywhere that reference appears, it should be SP, not 8 EN, in connection with 31022.
9 The other EN procedures are correctly EN procedures.
10 The second thing is in Paragraph 49 of 11 Mr. McKenney's affidavit, Page 17, fourth line. It 12 states that since Unit 3 began commercial operation, 13 Unit 3 procedures have defined an individual rod 14 removed from a fuel assembly as an item of SNM, and it 15 continues.
16 It should say that since approximately 17 1990, Unit -- instead of since it began commercial 18 operation, it should say since approximately 1990.
19 Unit 1 commercial -- Unit 3 commercial operation began 20 in 1986, approximately.
21 Those procedure changes in effect at that time do 22 predate any fuel rod movements or disassemblies at 23 Unit 3.
24 Then the last correction, which is really 25 the same correction, is in the expert panel affidavit, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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749 1 which is Tab 6, Paragraph 38, second line, Page 15.
2 CHAIRMAN BECHHOEFER: One second.
3 Thirty-eight?
4 MR. REPKA: Paragraph 38, Page 15.
5 CHAIRMAN BECHHOEFER: Okay.
6 MR. REPKA: Second sentence says, "This 7 began with the first Unit 3 SNM procedure issues in 8 1984." The correct statement is this began in 9 approximately 1990. Again, that procedure changes do 10 predate any fuel disassemblies at Unit 3.
11 With those corrections, and the Board's 12 forbearance, I'll continue with what I have to say.
13 The issue today before the Board is License Amendment 14 189. License Amendment 189 is a very specific license 15 amendment related to storage of spent fuel assemblies 16 at Unit 3.
17 It relates to increasing the storage of 18 assemblies by inserting new racks into the Unit 3 19 spent fuel pool, and it includes the use of defining 20 regions for storage based upon reactivity limits, and 21 there are specific administrative controls or 22 procedures attached to implementing those reactivity 23 limits.
24 We've provided a substantial record that 25 addresses exactly the question of whether the Unit 1 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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750 1 issue has any bearing on either the increase in 2 storage capacity or the, more specifically, the 3 administrative controls involved in implementing 4 License Amendment 189, and the answer is that there is 5 no bearing.
6 There's no, there is no commonality 7 between the procedures that were involved in SNM 8 control at Unit 1 in the 1970s and 1980s and those 9 that are used to implement License Amendment 189.
10 Those statements, those conclusions, are based upon 11 the opinions of a number of experts. They're based 12 upon the conclusions of the fuel rod accountability 13 project.
14 They're based upon the conclusions of the 15 root cause assessment team that was part of the fuel 16 rod accountability project, and they reflect a 17 substantial commitment of resources and expertise to 18 address the issues involved in the Unit 1 case, as 19 well as any link or nexus to this proceeding, and the 20 bottom line is, there is no nexus whatsoever.
21 Ms. Burton claims-22 CHAIRMAN BECHHOEFER: Pardon me. Is the 23 system of paper records that is now being used, in 24 addition to computerized records, is the paper record 25 provision substantially different from that used at NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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751 1 Millstone 1?
2 MR. REPKA: Is the paper record 3 substantially different? Yes, in two ways. First, as 4 the root cause team addressed specifically in their 5 report, the procedures at Unit 3 have been, since 6 1990, at least, have been substantially different than 7 the procedures in Unit 1 that were in effect at the 8 time the unit, accountability of the Unit 1 rods were 9 lost.
10 Specifically, at the time the Unit 1 11 problem arose, there was no expectation that fuel 12 assemblies would ever be disassembled. It simply 13 wasn't an expectation at that stage in the industry 14 that there would be leaking fuel rods and fuel rods 15 would be removed from assemblies, so the SNM 16 procedures at the time did not call for specific 17 accountability over individual fuel rods.
18 The item of SNM, special nuclear material, 19 addressed in the procedure was, among other things, 20 the fuel assembly.
21 At Unit 3, since 1990, the procedures have 22 always called for individual fuel rods that have been 23 permanently removed from their assembly to be tracked 24 as an item of SNM, so that's a significant difference 25 in the procedures right there.
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752 1 Second big difference is one highlighted 2 by the root cause assessment team, and that relates to 3 the inventory of record. At Unit 1, there was never 4 a clearly defined inventory of record that served as 5 the basis for the periodic surveys, so once 6 accountability was lost for the two fuel rods, there 7 was nothing in doing a survey to go out and say, I 8 need to look for a fuel rod, and, therefore, the fuel 9 rod couldn't be identified.
10 It's sort of like a situation, I was in 11 New York last week, and I was in Times Square. I was 12 walking down the street following a class trip of some 13 kind, and they were taking an accountability on who 14 was there, how many kids did they have, and some 15 fairly funny person said, everybody who's not here, 16 raise their hand. Well, that's kind of what the 17 situation was with the inventory of record at Unit 1 18 at the time, once the accountability was lost.
19 At Unit 3, there has been an inventory of 20 record, and most importantly, that inventory of record 21 has been even more clearly defined in the aftermath of 22 the root cause report to clearly be the map.
23 In addition, the procedures have been 24 enhanced such that the inventory of record is 25 reconciled, it has been reconciled against all other NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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753 1 records, internal and external, to assure that there 2 is an up to date inventory of every SNM item that 3 needs to be on site, is on site and needs to be 4 inventoried. Going forward, that will be reconciled 5 periodically.
6 In addition, there have been procedural 7 enhancements related to the verification of 8 assemblies-9 CHAIRMAN BECHHOEFER: "Periodically" 10 meaning yearly?
11 MR. REPKA: Once a year, at least, once a 12 year, and that will include a serial number 13 verification of assemblies that have been moved since 14 the last verification.
15 So, that's kind of a long answer to your 16 question, but there are significant procedural 17 differences today between what exists at Unit 3 and 18 what existed back then.
19 Having said all that, Ms. Burton claims 20 that there is a substantial and genuine dispute that 21 would justify an evidentiary hearing in this case.
22 The Nuclear Waste Policy Act and Subpart K of the 23 Commission's regulations clearly create a very high 24 burden of proof in order to justify an evidentiary 25 hearing.
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754 1 The burden of proof is on the intervenors, 2 and to put to not too bluntly, but to meet that 3 burden, one has to have facts, one has to have 4 evidentiary support. Ms. Burton and the intervenors 5 have offered a lot of argument, but they've offered no 6 facts.
7 The only affidavit or declaration that 8 they've entered into the record in this case is a 9 declaration from Mr. Besade. With all due respect to 10 Mr. Besade in his commitment and his passion for his 11 cause, he has no discernable qualifications, and even 12 having said that, his affidavit does not address at 13 all the particulars of what's at issue here.
14 There, frankly, are no facts that would 15 justify an evidentiary hearing. There's a lot of 16 argument, a lot of bluster, but no facts that support 17 any of that.
18 I'm going to return to some of the 19 highlights of our factual record later, but for the 20 time being, I just want to point out that what we have 21 put in represents not only the work product of many 22 people who were involved in the fuel rod 23 accountability project and the root cause assessment 24 team, but just limited to what is in the record here 25 before the Board are the affidavits of six individuals NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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755 1 that I, in doing a quick addition yesterday, came up 2 with 147 man years of experience in the nuclear 3 industry and at the NRC. It's a substantial body of 4 expertise focused directly on the issues in this case.
5 I don't believe that there's any basis 6 whatsoever to suggest that the intervenors have met 7 their burden of proof justifying an evidentiary 8 hearing.
9 CHAIRMAN BECHHOEFER: What about alleged 10 failure to update discovery responses?
11 MR. REPKA: I'm going to address that 12 right now.
13 CHAIRMAN BECHHOEFER: Okay.
14 MR. REPKA: I think that the core of what 15 we heard this morning is an argument that the safety 16 culture is somehow, a generalized and vague complaint 17 that the safety culture is deficient. That, quite 18 frankly, is an unsupported attempt to cast doubt on 19 everything that the licensee does at Millstone 20 Station.
21 I think to make those kinds of charges 22 without any factual support is unwarranted and, 23 frankly, beyond the scope of what this Board should be 24 considering, but having said that, I want to focus on 25 the reporting issue because I think that's where a lot NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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756 1 of attention has been given, and I find that what's 2 been said here this morning to be, even on that narrow 3 point, assuming it was somehow relevant, to be, 4 frankly, incorrect and not dispositive.
5 First, the whole issue of reporting, it's 6 based on the charge that there was a failure to come 7 forward and that somehow that's prejudicial or 8 reflective of poor culture.
9 Well, in the first place, it's not in any 10 way prejudicial. The licensee did come forward. It 11 was a contract engineer working for the licensee that 12 found this issue. He didn't bury the issue. He came 13 forward. It worked through the process, and we can 14 have a debate as to what the exact date was that it 15 should have been reported, but it was reported.
16 Ms. Burton became aware of it. She filed 17 to reopen, the Board reopened, and we're here today to 18 address the facts of what that means. Where's the 19 prejudice? There is no prejudice whatsoever. This is 20 much ado about nothing.
21 CHAIRMAN BECHHOEFER: Well, I might say, 22 in the motions to reopen, one of the claims made was 23 that the obligation for discovery, that the report 24 should have been made earlier, and one of the, one of 25 our holdings, at least, in our first decision, turning NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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757 1 down reopening, was that discovery didn't have to be 2 updated because the proceeding was over with in 3 November when the information was formally developed 4 and turned over.
5 Now, if you compare that to September, the 6 date, at least, where some knowledge of it came to 7 light, and we'd been told in September that, at least, 8 that there was a suspicion that there was some problem 9 with locating fuel rods at Millstone 1, it's 10 conceivable that we would not have issued the decision 11 in October to terminate the proceeding.
12 So, that, therefore, even though the issue 13 was reopened, the question is, Would it have ever been 14 needed to be reopened if the information had been 15 reported earlier? I can't say how we would have 16 reacted to such report at the time, but, at least, the 17 time frame, and we had rejected this one claim that 18 discovery should be updated because the proceeding was 19 over in November, and that reasoning might not have 20 governed, and it's our own decision, based on the 21 facts we had before us, but I just call that to your 22 attention, this potential effect.
23 MR. REPKA: And I appreciate that, but my 24 first point, and I'm going to get to the exact date of 25 when, perhaps, it should have been reported in a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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758 1 minute, but-2 CHAIRMAN BECHHOEFER: I'm not talking 3 about to, under the staff's LER requirements or 4 anything like that.
5 MR. REPKA: And I understand that.
6 CHAIRMAN BECHHOEFER: I'm not raising that 7 question at all.
8 MR. REPKA: I understand that, but the 9 fact remains, we can speculate about what ifs, but we 10 are here today, and that's the fact of the matter.
11 The issue came to light, was brought to light. There 12 was a motion to reopen. Whether that should have been 13 granted or not is another question entirely. You know 14 our position on that. We filed our position at that 15 time, but we are here today.
16 We have an opportunity to address the 17 relevance of that information to this proceeding to 18 License Amendment 189, and, frankly, there has been a 19 complete null said offered on that in that department.
20 Now, let me address the issue of the 21 timing of reporting. First, Ms. Burton here this 22 morning has repeatedly cast aspersions on the 23 character and the testimony or the deposition 24 testimony of Mr. Jensen, and she's done that without 25 any reference to transcript pages, any specific NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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759 1 statements of when Mr. Jensen said the things that she 2 says that he said.
3 But putting all of that aside, the fact of 4 the matter is Mr. Jensen was deposed in this case in 5 the spring of 2000. His testimony was filed in June 6 of 2000. There's no evidence anywhere that Mr. Jensen 7 had any knowledge of the Unit 1 issue. There's no 8 evidence developed by the Office of Investigations to 9 the NRC in looking at the reporting issue that 10 Mr. Jensen, or anybody else, exhibited any bad faith 11 or intended to delay reporting intentionally.
12 The fact of the matter is Mr. Jensen, when 13 he testified and he was deposed, can't report, he 14 can't address, he can't testify to things he doesn't 15 know so, number one, the attack on Mr. Jensen is 16 completely unwarranted.
17 CHAIRMAN BECHHOEFER: What about updating?
18 MR. REPKA: Now, the second issue is when 19 do you update. I think any obligation to update, if 20 you assume, even assume materiality, and I'm not 21 willing to concede materiality of this issue, 22 particularly, in light of everything that we've got in 23 the record today, but even if you were to assume that 24 this issue was somehow material, the question is, When 25 does that knowledge, when does that obligation arise?
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760 1 It, clearly, was not prior to September 2 12th. The NRC has indicated in their notice of 3 violation that they think September 12th is maybe a 4 date that a report should have been filed with the 5 NRC.
6 I think that all of that is subject to 7 significant judgment, and even if September 12th were 8 the date for report to the NRC, that doesn't equate to 9 a date that there would have been any obligation to 10 update the record in this case.
11 The fact of the matter is it was reported 12 to the NRC in November. It came to Ms. Burton's 13 attention almost immediately. It is a fact that, that 14 I, in fact, learned of the issue from Ms. Burton, and 15 so there is a lot of judgment involved.
16 Now, let's talk about September 12th.
17 Mr. Meekoff, in his affidavit, has testified a little 18 bit to what the issue was-19 CHAIRMAN BECHHOEFER: I've read some of 20 his statements already.
21 MR. REPKA: Okay. And I think he really 22 addresses it very well. Judge Kelber raised the 23 question of the black slacks. The example Mr. Meekoff 24 gave to me, and I'll, he didn't put it in his 25 affidavit, but I'll feel free to borrow it is -
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761 1 actually, he gave me two.
2 The first one is, if you lose your car 3 keys, when do you consider them to be lost, the minute 4 you can't find them or after you've searched the 5 logical places they might be?
6 But perhaps the better example is one of 7 your credit card, and you had it in the house, can't 8 find it. You know that somebody used, your wife used 9 it to make an online purchase, you have a record of 10 that, so now do you call the credit card company 11 immediately or do you look in the logical places first 12 before you call them knowing that it was used to make 13 a purchase recently, and you have a record of that?
14 So, there, clearly, is judgment involved 15 in any reporting issue of this type, when do you 16 report it, and that goes even before any judgment that 17 might be implied with respect to an obligation to 18 updated the Licensing Board. First, you have to have 19 an issue that you think, as a licensee, is reportable 20 before you even consider whether or not that's 21 material to the proceeding. None of that happened.
22 What happened on September 12th?
23 Mr. Meekhoff talks a little bit about that.
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762 1 week, March 28th, to the NRC's apparently violation on 2 this issue. This is, obviously, not included in the 3 filings because it postdates the filings, but it is a 4 matter of public record.
5 September 12th was a date in which -- let 6 me back up. What we had, what the engineer had who 7 found this issue, he was doing a reconciliation of 8 Unit 1 records, and he was, for purpose of preparing 9 for possibly moving to dry cast storage to understand 10 completely what was there.
11 He found a piece of paper which he 12 couldn't explain, and he decided he wanted to pursue 13 that. Specifically, what he found was a May 15, 1979, 14 memorandum that was attached to the card file, and 15 among other things, it identified two particular fuel 16 rods by serial number or what they thought were the 17 serial numbers, that came from a fuel bundle, MS-557.
18 It says in the memo, "These rods will be 19 stored in the fuel rod storage rack in the northwest 20 corner of the spent fuel pool until they can be 21 incorporated into a scavenged fuel assembler," and 22 then it says, "A fuel card has been issued to maintain 23 accountability."
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763 1 project, but what this memo tells everybody who's read 2 it is that there's two rods that have been removed 3 from MS-557.
4 Now, on September 12th, what the engineers 5 and what the unit was doing in the Unit 1 spent fuel 6 pool was not looking for the rods. They were doing a 7 serial number verification inspection of all the fuel 8 assemblies in the spent fuel pool, again, as part of 9 this project to prepare for Unit 1 decommissioning and 10 potential dry cast storage.
11 They were reading the serial numbers that 12 appear on the bail handle on the top of the fuel 13 assemblies. They weren't looking for rods. They were 14 looking for serial numbers. When they looked at 557, 15 they said, let's just look in there and see what's 16 there.
17 Now, what they saw was, in the spot where 18 the center space, or capture rod, should be, they saw 19 a rod. They didn't know whether it was a dummy rod or 20 a real rod, but they saw a rod. I think that they 21 assumed it may be a dummy rod because one would have 22 been replaced in there, but they don't know that the 23 center space, or capture rod, is not there.
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764 1 the tie rod had been bent, and that's why it wasn't 2 put back in 557 in the first place, and so, at least, 3 it was possible that the tip may have been cut off, 4 the rod reinserted and it would no longer be visible 5 at the top of the assembly.
6 They, at that point, they don't know, 7 therefore, that the two rods aren't in MS-557. Might 8 they have issued a condition report, might they have 9 done other things, yes, perhaps, as a matter of 10 judgment, but this is what they know on September 11 12th.
12 It turns out that they don't know for sure 13 that the rods are not there until, in order to pursue 14 the matter, they retained General Electric. General 15 Electric comes on site, lifts the fuel assembly out, 16 put it in the fuel prep machine, looked for the rods 17 and found that the rods weren't there. That didn't 18 occur until December, sometime in December, after the 19 report to the NRC had already been made.
20 Now, what else do they know on September 21 12th? They know that, they know that this memo that 22 raises the very issue they have in front of them says 23 these rods will be stored in the fuel rod storage rack 24 in the northwest corner of the spent fuel pool.
25 That's not in 557.
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765 1 So, the fact that they look in 557, and 2 they don't conclusively know it's not there, that 3 doesn't say that, so they went and looked in the 4 northwest corner of the pool, didn't see it there 5 either, but the memo goes on to say they'll only be 6 stored there temporarily until they can be 7 incorporated into a scavenged fuel assembly, so that 8 doesn't mean anything.
9 They also know at the time that there's a 10 couple logical places that that, those fuel rods could 11 be stored. They could have gone into a particular 12 container that relate -- that was used to store the 13 segmented test rods from the General Electric 14 segmented test rod program. They could have been 15 stored in a different container that was used to store 16 MS-508, which was a different damaged assembly that 17 was used for storing damaged rods, so there were other 18 logical places those rods could be.
19 The keys hadn't definitively been lost.
20 It is a matter, in hindsight, you can exercise 21 judgment and say that, yes, a report should have been 22 made instantly at that time. At that time, that 23 wasn't done. I'm not sure that that reflects on 24 anything at all relevant here. It, certainly, doesn't 25 reflect on character. It reflects on a particular NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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766 1 judgment, in a particular case, with some engineers 2 who were aggressively pursuing a very old paperwork 3 issue.
4 I think that to come here and cast 5 aspersions on the safety culture at Millstone based 6 upon the reporting of this one issue, I think that's 7 far overreaching, and to challenge the safety culture, 8 which is an issue far beyond the scope of License 9 Amendment 189, far beyond the scope of what the Board 10 needs to look at, in any event, if it were before the 11 Board, would require a lot more evidence than that.
12 CHAIRMAN BECHHOEFER: Well, I think 13 they're asking for an evidentiary hearing to discover 14 that.
15 MR. REPKA: But one does not, in Subpart 16 K, ask for an evidentiary hearing to discover an 17 issue. One has to have evidence to justify an issue.
18 The burden of proof is on the intervenors to come 19 forward.
20 CHAIRMAN BECHHOEFER: Well, what about any 21 obligation in September to advise the Licensing Board, 22 under the McGuire Doctrine?
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767 1 are lost fuel rods. It also does not know that that's 2 material to this proceeding because it doesn't know 3 enough facts in order to make a judgment as to whether 4 it has anything to do with License Amendment 189.
5 When the issue did come to light and was 6 reported, in November, and a motion to reopen was 7 filed almost instantaneously, we responded, and in our 8 very first response, we, the company, took the 9 position, the licensee at the time, that it was not 10 material to License Amendment 189 for several reasons.
11 First and foremost was the fact that this 12 proceeding deals with fuel assemblies, not fuel rods.
13 The procedures that are relevant to License Amendment 14 189 relate to the control and handling of fuel 15 assemblies and putting them in the right storage 16 location. Fuel rod inventory at Unit 1, in 1979, 17 really has little, if anything, to do with that.
18 That's what we said at the time; that's what the root 19 cause assessment team validated; that's our position 20 here today.
21 So, even if the issue had come to light in 22 a way before it was raised directly by the 23 intervenors, and, again, there was a passage of just 24 a matter of months there, I'm not sure that we would 25 have determined that it was material. Based upon our NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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768 1 filings, I think we would have determined that it was 2 not material.
3 Having said that, I think that the idea 4 that there's a continuing discovery obligation is, 5 there's simply no precedent for that, so I think we're 6 really in the domain of materiality, and, again, I 7 come back to the proposition that whether it was 8 material and should have been reported or when it 9 should have been reported is, at this stage of the 10 game, simply unimportant, given that we are here.
11 CHAIRMAN BECHHOEFER: Does not McGuire say 12 let the Board, whether or not it's material or not, 13 tell the Board and let it decide? There's a footnote 14 to that effect, I think.
15 MR. REPKA: Yes, but I submit that we 16 never even had the opportunity because the motion to 17 reopen would precede any change for us even to 18 understand what the scope of the issue was and what 19 the relevance of the issue or materiality at issue 20 was. The timing here was a matter of weeks, not 21 years.
22 CHAIRMAN BECHHOEFER: Right. It just 23 happened that our proceeding terminated in the 24 interim.
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769 1 was still before the Commission at the time.
2 CHAIRMAN BECHHOEFER: Oh, yes, but our 3 decision was issued, I believe.
4 MR. REPKA: Right. But, again, I would 5 not concede necessarily-6 CHAIRMAN BECHHOEFER: If you hadn't known 7 with the issue of decision-8 MR. REPKA: Didn't know that, didn't know 9 the scope of the issue, didn't know that there were 10 two missing rods whatsoever. We knew at, you know, at 11 the most, we knew that there was a paperwork issue, 12 and there were other paperwork issues at the time that 13 were resolved, so, you know, to presume that it was -
14 you know, it's a big leap to conclude that it was 15 reportable.
16 It's also a leap to conclude that it's 17 material, but even if you make those leaps, the timing 18 of it is such that it really became irrelevant. It 19 became a moot issue very quickly because by virtue of 20 the condition report that was initiated in the prompt 21 report made to the NRC, it quickly came to the light 22 of day and to the attention of the Licensing Board.
23 MR. COLE: So, Mr. Repka, you're saying 24 that it wasn't anywhere close to being ripe for 25 reporting in September/October time frame?
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770 1 MR. REPKA: Certainly, ripe for reporting 2 to the Board, that's correct, sir.
3 MR. COLE: Thank you.
4 MR. REPKA: If there are no other 5 questions on reporting, I would, I'm going to move on 6 to the LER that's been referenced.
7 MR. COLE: The one about heavy weights?
8 MR. REPKA: Heavy loads. The second piece 9 of so-called evidence that the intervenors present to 10 try to justify an evidentiary hearing is LER 2001-007, 11 which is a Unit 2 LER, reported on December 17, 2001.
12 Now, what this issue does is, it reports 13 -- what this LER does is, it reports an issue related 14 to safe load paths in the Unit 2 spent fuel area and 15 whether or not moving from the access area across the 16 task washdown pit was a safe load path.
17 The LER reports that the most recent 18 evaluation suggests that this should not be considered 19 a safe load path without corrective action, and, 20 therefore, was reported.
21 The first thing I'll say is that this is 22 Unit 3 -- Unit 2. It has nothing to do with Unit 3, 23 and it really has nothing to do with the kind of 24 procedures involved in implementing License Amendment 25 189, but that goes without saying.
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771 1 Beyond that, Ms. Burton suggests that this 2 relates somehow to safety culture or engineering lack 3 of capability. In fact, it really shows just the 4 opposite. It shows, it shows a willingness to 5 identify an issue; it shows a willingness to report an 6 old issue; and it shows a willingness to resolve that 7 issue.
8 What, and the third thing I'll say is this 9 LER doesn't involve a procedural compliance issue at 10 all. There was no procedure that said don't move 11 heavy loads over the cask washdown pit. That was, in 12 fact, the procedure would allow that movement.
13 What had occurred here was the heavy loads 14 issue is a very old issue. It dates from the 1980s, 15 and there was a new reg in some NRC bulletins on the 16 issues and some evaluations that were done.
17 There was a specific movement of the 18 reactor coolant pump replacement motor into the Unit 19 2 area some time ago, and at the time, the issue of 20 the load path was identified, and it was evaluated.
21 It wasn't ignored; it wasn't missed. But it was 22 evaluated by a probabilistic analysis, and the 23 conclusion was it's a very low probability issue; 24 therefore, it's not a problem when measured against 25 the acceptance criteria of the relevant new regs, not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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772 1 requirements, new regs and other guidance documents 2 that existed.
3 Looking at that issue in a more 4 contemporary light, the licensee took a much more 5 conservative approach and said, let's question what we 6 did in the past. Can we really rely on a 7 probabilistic risk approach here? Expectations are 8 changing. The conservatism being applied is much 9 different.
10 And what they did is, they took a more 11 classic deterministic single failure licensing type 12 approach and said, it's not a single failure proof 13 crane, even though it's a high reliability crane, et 14 cetera, et cetera.
15 We have to assume it will fail; therefore, 16 we may have a problem with a load such as the RCP 17 motor crashing through the floor of the cask washdown 18 pit and perhaps creating a problem, and, therefore, it 19 was reported. That really reflects a much more 20 conservative, a much more conservative approach to the 21 heavy loads issue, and it doesn't at all reflect a 22 lack of willingness or capability of implement 23 procedures.
24 Now, the, sort of, the kicker on this 25 story is if you go back to the probabilistic NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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773 1 assessment that was done of this particular movement 2 of the RCP motor, and this is an old PRA analysis, I 3 understand, that has since been documented again, but 4 the conclusion of that is the particular issue that 5 we're talking about involves core damage, a core 6 damage probability increase of 6.08E to the minus 12.
7 That's what we're talking about.
8 Now, Ms. Burton claims this is a 9 substantial safety issue. I submit that there's no 10 basis for that whatsoever. If there are any other 11 questions on the heavy loads LER, I'll be happy to try 12 to address them.
13 (Pause.)
14 MR. REPKA: The bottom line is that it 15 reflects a current approach that is conservative and 16 highly safety conscious.
17 CHAIRMAN BECHHOEFER: Well, I think the 18 question that the intervenors are trying to raise is 19 that how long does it take to determine that some, 20 some event is not compliant with regulations.
21 MR. REPKA: Well, if that-22 CHAIRMAN BECHHOEFER: And to follow up on 23 that.
24 How long should the system take to discover that?
25 MR. REPKA: Well, again-NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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774 1 CHAIRMAN BECHHOEFER: As I say, that's 2 what I think they were-3 MR. REPKA: To the extent that issue is 4 relevant at all to License Amendment 189, and I don't 5 think it is, but to the extent it is at all, that's 6 not really what's happening in this heavy loads issue.
7 This was a relook at an issue that had been addressed 8 and had been determined to be safe and appropriate and 9 in compliance.
10 It's simply a different look at an old 11 issue that had been identified and resolved, not 12 necessarily from a safety perspective, resolved 13 inappropriately. From a, from a strict licensing 14 perspective, you can take a different approach, and 15 that's what they've done, but it's not a case where an 16 issue was not timely addressed. This is part of a 17 continuing self-assessment process of which that's 18 what corrective action processes do every day at the 19 plant.
20 Having addressed those, I want to return, 21 briefly, to some of the, just highlight some of the 22 key points in our filing with respect to the real 23 issue of, that the Board raised in reopening this 24 case.
25 In its decision reconsidering and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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775 1 accepting the motion to reopen, the Board phrased the 2 issue here as, "The scope of this reconsideration is 3 limited to the procedures or controls from management 4 of the SFPs and their modes of execution that may be 5 common to Millstone 1 and Millstone 3."
6 And the answer to that is there really is 7 little, if anything, in common, and that's what's 8 addressed in our testimony.
9 MR. KELBER: Could you repeat that, 10 please? I didn't catch it.
11 MR. REPKA: Well, what I said was that the 12 issue is whether the procedures or controls from 13 management of the SFPs and their modes of execution 14 that may be common to Millstone 1 and Millstone 3, and 15 what I'm saying, what I said is that there is little, 16 if anything, in common, at least, between those 17 controls that were involved in the Unit 1 fuel rod 18 event and the Unit 3 license amendment that we're here 19 today to discuss.
20 If you want a short encapsulation of why 21 that's so, you could look at the Dominion Nuclear 22 Connecticut outside expert panel testimony of 23 Mr. Fairbank, Mr. Swanson and Mr. Thompson, Paragraphs 24 51 and 52. Those two paragraphs kind of encapsulate 25 most of the key points right there.
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776 1 Having said that, again, let me reiterate 2 some of those points. First, the record that we put 3 into evidence here shows that Dominion Nuclear 4 Connecticut has comprehensive fuel handing controls to 5 implement License Amendment 189. This includes the 6 controls necessary to address reactivity limits, as 7 well as the controls necessary to implement and move 8 fuel assemblies to the right region. None of that has 9 been put into question.
10 The record also shows that Dominion 11 Nuclear Connecticut has SNM accounting procedures at 12 Unit 3 today. The key elements of that include 13 procedures, as I mentioned earlier, that track, both, 14 assemblies, fuel assemblies, and rods that are removed 15 from fuel assemblies. That was not the case at Unit 16 1 when this, when the Unit 1 issue arose.
17 The location of fuel SNM at Unit 3 is also 18 tracked today, and as the Board has recognized in, 19 both, the paper card file and in Shuffleworks 20 electronic computer base program. That was not the 21 case when the Unit 1 issue existed, when it occurred.
22 The procedures today do require surveys 23 and inventories. Those procedures have been improved 24 over what was in place at Unit 1 at the time that the 25 issue, the Unit 1 fuel rod issue occurred, and I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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777 1 highlighted some of those improvements earlier, 2 including additional baseline verifications, first, a 3 reconciliation of the records to clarify the inventory 4 record and, second, improvements with respect to the 5 frequency and nature of the surveillances, the 6 surveys, of fuel assemblies that are present.
7 No specific deficiencies in any of these 8 procedures, any of the enhancements, have been 9 addressed at all by the intervenors.
10 To summarize some of the key points made 11 by the witnesses with respect to why things were 12 different at Unit 1 and the Unit 3 issue that we're 13 here today, first, the Unit 1 event didn't extend at 14 all to handling and control over fuel assemblies 15 either at Unit 1 or at Unit 3. It was a fuel rod 16 issue. It was restricted to two fuel rods. There 17 were no other fuel rods at Unit 1; there were no other 18 fuel rods at Unit 3.
19 The vulnerabilities that allowed Unit 1 20 rods to be lost didn't extend to fuel assemblies, 21 again, either at Unit 1 or at Unit 3.
22 Now, even if you assume the storage of 23 fuel rods was somehow linked to License Amendment 189, 24 and, again, it's not because we're talking about 25 moving fuel assemblies, not individual rods, into NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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778 1 regions for which they're qualified, the Unit 1 event, 2 as it relates to fuel rods, was limited to Unit 1.
3 That's an issue the root cause assessment team looked 4 at very specifically.
5 They found no evidence of any rods having 6 been lost at Unit 3, and they, specifically, found 7 that the vulnerabilities at Unit 1 with respect to 8 fuel rods didn't apply to Unit 3. This is referenced 9 in our testimony. This is the attributes of the 10 procedures, the attributes of the program and the 11 colored windows that you see in the root cause 12 assessment report.
13 Anywhere where there were opportunities 14 for enhancements, those have been implemented through 15 the corrective action process, but there were no 16 significant deficiencies in any way found at Unit 3 17 with respect to handling fuel rods.
18 We also addressed-19 CHAIRMAN BECHHOEFER: Let me ask one 20 question.
21 MR. REPKA: Yes.
22 CHAIRMAN BECHHOEFER: There's a 23 description of a current system or isolated fuel rods, 24 and maybe other material, are stored in certain boxes, 25 I think they were referred to, and then the boxes are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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779 1 located, as are any other fuel bundles, I guess, and 2 this is a layman describing something. Maybe I don't 3 understand all the details, but was there nothing 4 comparable to the so-called boxes at Unit 1 where 5 isolated fuel rods could be located or how did that 6 work?
7 MR. REPKA: Thank you for bringing that up 8 because I didn't want to-9 CHAIRMAN BECHHOEFER: No. I thought that 10 was-11 MR. REPKA: -- forget that. That's the-12 CHAIRMAN BECHHOEFER: -- a significant 13 part, and I wanted to make sure I understand it.
14 MR. REPKA: That's extremely significant, 15 and that's crucial. At Unit 1, what the root cause 16 team found was that the mechanism by which the rods 17 were lost was that they were stored in an undefined 18 way outside the storage racks apart from fuel. They 19 were tied in containers to the side of the pool next 20 to local power range monitors, LPRMs.
21 This created the vulnerability for what is 22 the most likely scenario, that the fuel rods were cut 23 up, mistaken for LPRMs and, and went out to, to a low 24 level waste repository. They were stored outside the 25 storage racks.
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780 1 In Unit 3, and there was no defined 2 storage means at Unit 1.
3 At Unit 3, there has always been what's 4 known a the fuel storage box, and it, again, in 5 anticipation, I suppose, of leaking fuel, fuel rods 6 that would be removed from reconstituted assemblies, 7 there is a place defined to store fuel rods.
8 That box is kept in the, in the spent fuel 9 racks, themselves. It, it can't be mistaken for, the 10 mechanism that existed at Unit 1 to be mistaken for 11 local power range monitors can't exist. I mean, it, 12 beyond the fact that there are no LPRMs at Unit 3, 13 because it's a PWR, but the existence of that storage 14 box is a cr -- is a crucial distinction really.
15 That, that fuel storage box, as we reflect 16 in the testimony, is tracked in both the card file and 17 in the short work program; so, if you look at Exhibit 18 3, which we submitted, which is the map of the Unit 3, 19 an illustrative map of the Unit 3 spent fuel pool, 20 this is generated from information and shuffle works-21 CHAIRMAN BECHHOEFER: Just one second.
22 We're--.
23 (Pause.)
24 MR. COLE: Exhibit 3?
25 MR. REPKA: Exhibit 3. It says, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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781 1 "Millstone Unit 3 Current Spent Fuel Pool, Cycle 8."
2 (Pause.)
3 MR. REPKA: The key is that a fuel storage 4 box, the FSB is tracked like a fuel assembly, through, 5 through both shuffle works and a card file.
6 If you look in the upper left hand grid, 7 at grid space horizontal four and, I'm sorry, vertical 8 column four and horizontal column 3U, you'll see 9 "FSE", fuel storage box. There it is. That's 10 tracked.
11 CHAIRMAN BECHHOEFER: And that's the one 12 that contains one spent fuel rod?
13 MR. REPKA: And it contains one spent fuel 14 rod,-
15 CHAIRMAN BECHHOEFER: Which-16 MR. REPKA: -- which has been verified 17 visually to be there.
18 MR. COLE: But more could go in?
19 MR. REPKA: More could go in, and it would 20 be tracked. Those, those rods would be tracked into 21 the fuel storage box, and then any movement of the 22 fuel storage box would be tracked through the card 23 file and through shuffle works located, and it would 24 be located on the map.
25 The key, from a criticality standpoint, is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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782 1 with one rod, there is no criticality effect of 2 significance if more rods go in. That would be 3 treated as any other fuel assembly. It would be 4 evaluated to determine which regions it could be 5 stored in, and, you know, right now, it can be stored 6 in any region of the pool.
7 If it ever got to a point where some 8 restriction would apply, it would be treated just as 9 a fuel assembly with restrictions.
10 That's a relevant procedural point with 11 respect to our particular license amendment.
12 CHAIRMAN BECHHOEFER: Well, within a box, 13 is there any necessity, and I ask this from a 14 technical standpoint now, really not knowing too much 15 about it.
16 Is there any necessity that rods be 17 separated or kept apart from the rods of different 18 enrichment?
19 MR. REPKA: Is there any-20 CHAIRMAN BECHHOEFER: If, if you put them 21 in a fuel storage box, or does the, does the entire 22 box-23 MR. REPKA: Is, is your question, is there 24 a criticality issue with respect to storage of the 25 rods in the box? Because of location of rods in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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783 1 box?
2 CHAIRMAN BECHHOEFER: Is there diff -
3 rods of different-4 MR. REPKA: Enrichment or burn off?
5 CHAIRMAN BECHHOEFER: -- enrichment; yes.
6 MR. McKENNEY: That's all analyzed.
7 MR. REPKA: The only thing I could say is 8 that, that would be analyzed. It is, it is borated, 9 and it would be addressed, but, certainly, none of 10 that is being changed by License Amendment 189 in any 11 way.
12 I, if you like, I could get, try to get 13 more information on that.
14 (Pause.)
15 MR. REPKA: I, I've consulted with Mr.
16 McKenney, and, and the answer is that, with respect to 17 inserting any rod, it would be addressed at the design 18 control process. It wouldn't be anticipated to be an 19 issue.
20 It, it wouldn't say definitively it's not, 21 but it would be addressed, and, and the point is you'd 22 be putting rods into the box. The box is a, is a 23 matrixed array of spaced storage locations, and, 24 therefore, just like inserting individual rods into a 25 fuel assembly, they would be held in a certain NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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784 1 configuration that's presumptively safe.
2 MR. COLE: Is the configuration in the 3 fuel boxes similar or identical to those 4 configurations in the, in the other fuel bundles?
5 (Pause.)
6 MR. REPKA: Again, relying on Mr.
7 McKenney, the, the fuel assembly at Unit 3 contains 8 261 pins. The fuel storage box is an eight by four 9 array that stores 56 pins. They're spaced a much 10 greater distance than the normal fuel assembly.
11 MR. COLE: All right.
12 CHAIRMAN BECHHOEFER: And just to repeat, 13 they would be stored in, in the area where storage of 14 the highest--.
15 (Pause.)
16 MR. REPKA: It, right now, they could be 17 stored anywhere.
18 CHAIRMAN BECHHOEFER: Yeah, I know, but 19 that's just the one. That's-20 MR. REPKA: Correct, and, and, again,-
21 CHAIRMAN BECHHOEFER: But I was saying 22 that it would be stored in the area of the highest, I 23 don't know, radioactivity or, or, the rod in the box-24 MR. McKENNEY: Based on analysis-25 CHAIRMAN BECHHOEFER: Radioactivity of any NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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785 1 rod in the-2 MR. REPKA: Again, it would depend upon 3 what's stored at a given time in the box. So, when 4 you, you add a pin to the box, that, the process would 5 then redefine the regions that it could be stored in 6 if there is any change.
7 MR. COLE: You would make a calculation 8 every time you changed the configuration of the box-9 MR. REPKA: Correct.
10 MR. COLE: -- or the rods in the box?
11 MR. REPKA: That's correct, and, and, you 12 know, the only other feature of the box that I think 13 is important, with respect to distinction from what 14 happened at Unit 1, is that the rods cannot be easily 15 removed from, from the box. It requires special 16 tooling.
17 MR. KELBER: I appreciate the fact that 18 this is the right time to do some of these features at 19 Unit 3 just to refresh our memory.
20 First off, by the way, I'd like to thank 21 Mr. McKenney for a very thoughtful and thorough 22 consideration of my questions. I appreciate it.
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786 1 performance.
2 When you identify a fuel assembly using 3 the, the camera, there are two people involved to 4 verify the serial number of that assembly; is that not 5 correct?
6 MR. REPKA: What are you doing with the 7 assembly? Are you moving it now from the core to the 8 pool?
9 MR. KELBER: Yeah, you're moving it into 10 or out of the core.
11 Now, do these two people, when they 12 identify, does one say, "Well, this is Serial No.
13 XYZ," and somebody says, "Oh, yeah, that's what it 14 is", or do they write it down separately or how is 15 that administered so that the first one who looks at 16 it doesn't influence the second one?
17 (Pause.)
18 MR. REPKA: Okay. There is still 19 verification at that, at that point. When you're 20 moving the fuel assembly, do a verification of the 21 serial number and the location. The two, the mover 22 and the checker are both present.
23 The first one says that that's Assembly 24 XYZ going to where it's going, and the second verifies 25 that and says that I concur or not concur.
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787 1 MR. KELBER: Looking at the same monitor?
2 MR. REPKA: Looking in the same monitor.
3 Now, they are trained that they are not, they are not 4 to be, to influence one another. They, by training, 5 know that they, they are looking separately.
6 MR. KELBER: And a similar procedure is 7 used when they actually move the assembly into its 8 place; let's say, in the fuel storage pool? That is-9 10 (Pause.)
11 MR. REPKA: For, for the location, in, in 12 that case, you have somebody on the refueling bridge 13 and somebody on the floor. They're, they're 14 separately located.
15 MR. KELBER: And they, and they, and they 16 independently verify that location?
17 MR. REPKA: That's correct.
18 (Pause.)
19 MR. REPKA: That's, that's correct. There 20 are two, two, for verification of the location, 21 they're in two separate locations.
22 MR. KELBER: Okay. That, that, I just 23 wanted to make sure that my memory was correct.
24 In thinking about this problem, I had 25 considered that one could, in fact, automate it. The NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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788 1 technique is actually, it goes back to the design of 2 bowling alleys in the 1950.
3 (Laughter.)
4 MR. KELBER: But that doesn't mean that 5 it's necessarily any more accurate, and the accuracy 6 of this procedure depends upon the independence and, 7 of the verifiers.
8 MR. REPKA: That's true.
9 MR. KELBER: Automating it might not be 10 economically worthwhile, but that's another point 11 altogether.
12 (Pause.)
13 MR. REPKA: Yeah. Just, just two, two 14 thoughts to respond to that.
15 One, as you recognize, the automation 16 could introduce other failure mechanisms.
17 MR. KELBER: Yes.
18 MR. REPKA: And, second is, again, the 19 serial number verification-20 MR. KELBER: That's, that's one of the big 21 ones.
22 MR. REPKA: Yeah, it's not, it may not be 23 easily done by automation. It's, it's perhaps one of 24 those things better left to human beings to, to 25 observe and try to read.
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789 1 MR. KELBER: If you use sodium coolant, by 2 the way, that wouldn't be a problem.
3 (Laughter.)
4 MR. REPKA: It's probably too late for 5 that.
6 MR KELBER: I think so.
7 MR. McKENNEY: There are other issues for 8 sodium.
9 (Pause.)
10 MR. REPKA: If, if there are any other 11 questions, I, I will just sum up here unless there is 12 questions.
13 Go ahead, Dr. Cole?
14 CHAIRMAN BECHHOEFER: Go ahead?
15 MR. COLE: Ms. Burton mentioned some 16 problems with refueling outage No. 6, and I don't know 17 whether you were going to address that; so, I kept 18 quiet about it.
19 MR. REPKA: Well, I was, but I opted not 20 to, but I will address it since you asked.
21 We, we addressed that-22 MR. COLE: Okay.
23 MR. REPKA: -- the last time around.
24 MR. COLE: Yes, I believe so, and my 25 recollection might or might not be accurate; that's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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790 1 why I wanted to pursue it.
2 There were some operational problems 3 associated with, with outage No. 6, but I didn't 4 recall them as being computer problems. I thought 5 they were more with, with equipment problems that did 6 or did not necessarily involve safety issues; just 7 time and, and other kinds of problems.
8 Could you, do you have somebody there who 9 could verify that?
10 MR. REPKA: Well, you're, you're exactly 11 right on all counts. It was, it was problems with the 12 refueling machine. It was not computer problems, per 13 se. They were, they were time and cost related, not 14 safety related.
15 The corrective action at the time, 16 identified at the time, which I think we mentioned at 17 the time, was plans to replace the refueling machine.
18 That has, in fact, been done.
19 MR. COLE: All right. That's what, what 20 I was going to ask.
21 Thank you.
22 CHAIRMAN BECHHOEFER: I have a question 23 concerning refueling outage 7. That is, apparently 24 there were no problems with that, but it was subject 25 to verification. A staff inspector was there.
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791 1 Would it be useful to always have some 2 sort of independent verification when you have 3 refueling outage changes?
4 MR. REPKA: I don't think there is any 5 reason to suggest that's necessary whatsoever. I 6 think that, that the procedures, themselves, call for 7 oversight and verification.
8 You know, there has been no, no documented 9 problems of, of, with, with respect to implementing 10 the procedures. The answer is, no, I don't think 11 that, that would serve any purpose.
12 CHAIRMAN BECHHOEFER: I'm going to ask the 13 same question of the staff, but-14 MR. REPKA: And, and we presume that the, 15 that the staff will, will, will oversee those kinds of 16 activities at the same level that they presently do, 17 or whatever level they feel appropriate, but in, in, 18 you know, we, certainly, welcome that, and, but beyond 19 that, we don't see any further need.
20 CHAIRMAN BECHHOEFER: Okay. Why don't you 21 proceed with your summary?
22 MR. REPKA: Okay. The bottom line is 23 we're here to talk about License Amendment 189, which 24 is now in two phases of this, this Sub-Part K hearing.
25 I think we've put in a substantial record.
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792 1 It shows that it's, it's a, an approach to 2 increasing the storage capacity of the spent fuel pool 3 at Unit 3 that's safe, reliable. It's based upon 4 defense in depth.
5 I didn't even get into, again, the 6 criticality calculations that we put in the last time 7 around that show the tremendous margin of safety that 8 exists with respect to criticality events, which was 9 the focus of the contention.
10 It's a safe, reliable approach to, to 11 spent fuel storage. It's consistent with the Nuclear 12 Waste Policy Act, and, and, therefore, based upon the 13 facts, the license amendment should certainly be 14 sustained.
15 Beyond that, the, the relevant standard 16 here for a evidentiary hearing is one of showing a 17 genuine and substantial dispute that could only be 18 resolved in a, in a evidentiary hearing, and could be, 19 and must be central to the Commission's decision on 20 the license amendment that's at issue, and, and I 21 think that, in this case, through a complete lack of, 22 of any evidence, whatsoever, or any logical nexus to 23 this particular license amendment, the intervenors 24 have not, failed to show either a genuine or 25 substantial dispute; much less one that's central to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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793 1 the decision on License Amendment 189; much less one 2 that could only be resolved in, in an evidentiary 3 hearing.
4 So, therefore, under Sub-Part K, there 5 really is, there really is no doubt about the result 6 that this Licensing Board needs to reach. I think 7 that it, it's time to bring this case to a close.
8 CHAIRMAN BECHHOEFER: I guess now we'll 9 take a lunch break, and then after lunch, we'll hear 10 from the staff, and we'll hear Ms. Burton's rebuttal.
11 We, we thought about an hour and 15 12 minutes would give people enough time. If any party 13 wants more than that-14 MR. COLE: Speak up now.
15 CHAIRMAN BECHHOEFER: Speak up now; right.
16 There is a restaurant in the hotel. There 17 are probably numerous other restaurants close by; so, 18 is an hour and 15 minutes enough? We'll be back at-19 MR. REPKA: It sounds fine to us.
20 CHAIRMAN BECHHOEFER: -- 1:30.
21 Pardon?
22 MR. REPKA: Sounds fine.
23 CHAIRMAN BECHHOEFER: Approximately 1:35.
24 (Whereupon, at 12:19 p.m., a lunch recess 25 was held.)
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794 1 A-F-T-E-R-N-O-O-N S-E-S-S-I-O-N 2 (1:40 p.m.)
3 CHAIRMAN BECHHOEFER: It's now time for 4 the staff to make a presentation.
5 MS. HODGDON: Ms. Brock will present the 6 staff's argument, the staff's presentation. Thank 7 you.
8 CHAIRMAN BECHHOEFER: Thank you.
9 MS. BROCK: As a preliminary matter, 10 before we start-11 CHAIRMAN BECHHOEFER: Could you talk 12 closer to-13 MS. BROCK: Sure.
14 CHAIRMAN BECHHOEFER: -- a microphone.
15 MS. BROCK: Sorry.
16 CHAIRMAN BECHHOEFER: I'm having trouble 17 hearing you.
18 MS. BROCK: Sorry.
19 (Pause.)
20 MS. BROCK: Okay. Is that, is that 21 better?
22 CHAIRMAN BECHHOEFER: Yes.
23 MR. COLE: Yes.
24 MS. BROCK: As a preliminary matter, 25 before we start, on Page 18 of the staff's filing, we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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795 1 left out a word. The-2 MR. KELBER: Page 18, you say?
3 MS. BROCK: Page 18; yes.
4 It's, it's not a big word. It's the 5 second paragraph down. It should have read, "The 6 Commission addressed a Licensing Board rejection of a 7 contention concerning removing radiological effluent 8 technical specifications."
9 MR. KELBER: Okay.
10 MS. BROCK: Which is add the word 11 "effluent". That's it.
12 MR. KELBER: I'm sorry. I missed what you 13 wanted me to do with that sentence?
14 CHAIRMAN BECHHOEFER: Yeah.
15 MS. BROCK: It, currently, it reads, 16 "concerning removing radiological technical 17 specifications".
18 MR. KELBER: Yes?
19 MS. BROCK: It should read, "concerning 20 removing radiological effluent technical 21 specifications."
22 MR. KELBER: Oh, okay. You want to add 23 the word "effluent"-
24 MS. BROCK: Effluent; yes.
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796 1 technical?
2 MS. BROCK: Yes. Thank you, very much.
3 MR. KELBER: Okay. Thank you.
4 CHAIRMAN BECHHOEFER: Okay.
5 MS. BROCK: Okay.
6 (Pause.)
7 MS. BROCK: There are no disputed issues 8 of fact or law requiring resolution in a adjudicatory 9 hearing in this case; accordingly, the Board should 10 dismiss this proceeding.
11 The burden of going forward and of 12 demonstrating the existence of a substantial and 13 genuine issue of material fact is on the intervenors.
14 General allegations are insufficient to 15 trigger the evidentiary hearing. Factual allegations 16 must be supported by experts or documents that 17 demonstrate that an evidentiary hearing is warranted.
18 Although, the ultimate burden of 19 persuasion is on the licensee, the proponent of the 20 contention has the initial burden of coming forward 21 with factual issues, not merely conclusory statements 22 and vague allegations.
23 I'm going to briefly address the lack of 24 a link between the unaccounted for fuel rods in Unit 25 1 and the administrative controls in Unit 3.
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797 1 I will then quickly summarize the root 2 causes of the loss out of Unit 1 and how those causes 3 are not present in Unit 3.
4 I will explain how the loss of 5 accountability for the rods out of Unit 1 does not 6 increase the risk of criticality in Unit 3.
7 In conclusion, I will demonstrate that the 8 intervenors have failed to support their claim that 9 the apparent failure to follow reporting guidelines 10 for loss of the accountability of special nuclear 11 material demonstrates anything of relevance.
12 The Board reopened this proceeding on a 13 very narrow issue. The only issue is whether there is 14 any common link, either in procedures or execution of 15 procedures, that led to the accountability failure at 16 Unit 1 and the present methods of personnel in use at 17 Unit 3.
18 The record is only reopened to determine 19 the extent to which the loss of two fuel rods out of 20 Unit 1 bear upon both the adequacy of administrative 21 controls at Unit 3 and DNC's ability or willingness to 22 implement such controls successfully.
23 As has been demonstrated by the written 24 filings and the presentations of the licensee and 25 intervenor, the loss of accountability of the two fuel NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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798 1 rods out of Unit 1 does not bear upon the ability or 2 willingness to implement administrative controls at 3 Unit 3.
4 The actual events that led to the loss of 5 accountability of the fuel rods out of Unit 1 are not 6 in dispute. The staff and licensee mostly agree on 7 the events that took place, and the intervenor has 8 failed to address those events.
9 Everyone agrees that accountability for 10 the fuel rods was lost around 1980; significantly 11 before the shutdown and restart of the Millstone 12 plant.
13 As the staff affidavit stated, the 14 procedural controls and their implementation at 15 Millstone Station have greatly improved since the 1980 16 time frame; indeed, the Licensing Board noted, in it's 17 October, 2000 ruling, that events that occurred prior 18 to the 1996-1998 shutdown and restart do not 19 necessarily reflect the licensee's ability to carry 20 out administrative controls.
21 Similarly, there is no real disagreement 22 about the root causes that initially caused the loss 23 of accountability of the two fuel rods, and the fact 24 that these causes are not at issue in Unit 3.
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799 1 fuel to be stored outside of the fuel racks. This may 2 have caused the rods to be mistaken for radiated 3 hardware.
4 Unit 3 requires all fuel to be stored in 5 the fuel racks. Unit 3 stores one individual fuel rod 6 that is not part of a fuel assembly in an approved 7 storage container in the fuel racks.
8 The intervenor did not challenge this or 9 any other finding regarding the specific root causes 10 of the loss of accountability of the fuel rods.
11 The original contention in this matter was 12 that the complexity of administrative controls, in the 13 Unit 3 spent fuel pool posed an undue risk of a 14 criticality accident in the pool.
15 It is uncontested that the loss of two 16 fuel rods out of the Unit 1 spent fuel pool does not 17 pose a criticality concern in the Unit 3 spent fuel 18 pool. Even if, hypothetically, the two Unit 1 rods 19 were in the Unit 3 spent fuel pool, this would not 20 pose a criticality concern.
21 The concentration in the Unit 3 spent fuel 22 pool precludes criticality in the event of an entire 23 fuel assembly being misplaced. Two fuel rods are but 24 a small fraction of a small assembly.
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800 1 two to represent merely the number that were, number 2 of rods that were misplaced, and if you view the 3 misplacement as a programmatic problem, there is no 4 necessary correlation between two and what, what you 5 have to defend against, I guess, I should say.
6 Can you comment on that? What if they 7 lost 25?
8 MS. BROCK: Are you saying that does the 9 programmatic, is your question is whether the 10 programmatic loss indicates a problem, not just rather 11 the two, but-12 CHAIRMAN BECHHOEFER: Correct.
13 MS. BROCK: Sure.
14 CHAIRMAN BECHHOEFER: Because they 15 happened to have lost two, but does that mean that-16 MS. BROCK: That if they had lost more-17 CHAIRMAN BECHHOEFER: Or misplaced or 18 whatever you want to say, but is two just a number to 19 look back at or is it a-20 MS. BROCK: Well,-
21 CHAIRMAN BECHHOEFER: Is there a limit to 22 what they could misplace before any problems arise?
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801 1 assembly within that pool, which I believe is, is it 2 260? There is 264 rods in a fuel assembly.
3 In terms of the programmatic breakdown, 4 whether they lost two or 25 in 1980, I would still say 5 that the causes that caused that loss, whether it had 6 been two or whether it had been more, in 1980, are not 7 present today, and are not present in the Unit 3 spent 8 fuel pool.
9 The only item that's actually contested in 10 this proceeding is whether Northeast Utilities 11 apparent failure to report the loss of the 12 accountability of the two fuel rods to the NRC within 13 30 days demonstrates that personnel in Unit 3 are 14 unwilling or incapable of following administrative 15 procedures.
16 The apparent reporting violation is of no 17 relevance to these proceedings. This proceeding was 18 reopened to look at whether there was any common link 19 between the accountability failure at Unit 1 and the 20 present methods in use at Unit 3.
21 An apparent violation of a reporting 22 requirement has nothing to do with the loss of 23 accountability of the rods in 1980.
24 The intervenor submitted four documents 25 and one affidavit along with its filing. The staff NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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802 1 believes that none of these documents should have any 2 influence on, in the reopening proceeding.
3 Intervenor's first exhibit is the Special 4 Inspection Report done by the NRC. The inspection 5 report is not in controversy. All parties agree on 6 the facts contained in the inspection report. The 7 intervenor has failed to demonstrate how the 8 inspection report shows that there is a disputed issue 9 of fact that requires resolution in an adjudicatory 10 hearing.
11 The second document by intervenor is the 12 Office of Investigation's report done by the NRC. The 13 01 report is of no relevance to these proceedings. It 14 was initiated to determine whether there was any 15 deliberate effort to delay reporting the loss of 16 accountability for the fuel rods to the NRC. The 01 17 report found that there was no such deliberate effort.
18 The 01 report was focused solely on 19 whether any apparent reporting violation was willful; 20 something that is of no relevance to these proceedings 21 since it does not show a common link between the loss 22 of accountability of the fuel rods and the current 23 operating procedure in the spent fuel pool in Unit 3.
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803 1 of material fact that requires resolution in an 2 adjudicatory hearing.
3 One of the documents attached to the 4 intervenor's filing is a newspaper article, "Data Show 5 World of Stolen Nuclear Material". The article 6 discusses, in very general terms, international loss 7 of nuclear weapon's material.
8 While it is unclear to this staff what 9 relevance the article has to this proceeding or for 10 what purpose it was introduced, it should be 11 categorically excluded. It is well established that 12 a newspaper article is hearsay and cannot be admitted 13 to prove the truth of the assertions stated therein.
14 The fourth document is LER 2001 007 out of 15 Millstone Nuclear Power Station Unit 2 on movement of 16 heavy loads. This document should not have any 17 influence because it has absolutely no relevance to 18 the proceeding at hand. The reopened contention to 19 Unit 2, the extent to which the loss of two fuel rods 20 out of Unit 1 bear upon both the adequacy of 21 administrative controls and the DNCs ability or 22 willingness to implement them.
23 This LER comes out of Unit 2. By its 24 terms, it cannot demonstrate anything about Unit 1 or 25 Unit 3; furthermore, it's an example of the reporting NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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804 1 corrective action process working as intended. The 2 licensee reported that safe load paths were not marked 3 correctly in Unit 2. It proceeded to correct this 4 deficiency by marking the location of the pipe trench 5 on the bay floor. This LER applies only to Unit 2.
6 The LER states that no similar events or 7 conditions were identified during the 24 months 8 preceding this condition.
9 If Unit 3 had a similar condition, it 10 would have had to have been identified. One of the 11 specific boxes on the LER form is, "Other facilities 12 involved". If an additional unit is involved, the 13 licensee writes it in that box. The box was left 14 blank on this LER demonstrating that neither Unit 1 or 15 Unit 3 are involved in this LER.
16 The intervenor appears to be arguing that 17 inadequate engineering practices caused the loss of 18 accountability of fuel rods in Unit 1, and the LER in 19 Unit 2. The Engineering Department is system wide, 20 and, hence, demonstrates a problem in Unit 3.
21 In fact, as a preliminary point, the group 22 in Engineering responsible for engineering programs is 23 separate and distinct from the group that conducts 24 fuel movements in Unit 3.
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805 1 please?
2 MS. BROCK: Yes. The group in Engin -
3 this is coming from our resident inspector, who told 4 me this morning.
5 The group in Engineering is respon -
6 that's responsible for engineering programs is 7 separate and distinct from the group that would 8 conduct the fuel movements.
9 The intervenor appears to be, the 10 intervenor appears to be making a management character 11 argument in saying that there is something wrong with 12 the Engineering Department in Millstone station wide; 13 indeed, the intervenor stated this morning that the 14 culture is the pervasive issue.
15 The Commission has placed strict limits on 16 management and character arguments. There must be 17 some direct and obvious relationship between the 18 character issues and the licensing action in dispute.
19 They must relate directly to the proposed action and 20 cannot be merely of historical interest. That's all 21 coming out of a recent the, a decision by the 22 Commission. It came down December 5th, 2001.
23 The loss of accountability of the fuel 24 rods took place in 1980. A matter solely of 25 historical interest. The intervenor has failed to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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806 1 demonstrate the direct and obvious relationship 2 between the engineering management practices in Unit 3 2 that missed marking a safe load path, and the 4 ability to follow administrative procedures in the 5 spent fuel pool.
6 As an additional point, all of 7 intervenor's documents should be excluded because none 8 of them were disclosed to the staff in discovery. The 9 staff specifically asked for all documents that each 10 witness has reviewed and is expected to rely on, on 11 his or her testimony.
12 After a motion to compel, the intervenors 13 provided the answer that the intervenors do not have 14 the requested information available at this time.
15 None of the documents were provided to the staff.
16 Sub-Part K requires simultaneous filings.
17 The ability of the staff to response to arguments that 18 it had no notice of through discovery was 19 substantially prejudiced by the intervenor's failure 20 to disclose the documents in discovery. An 21 appropriate sanction for failure to disclose the 22 documents in discovery is to disregard the documents.
23 The only affidavit submitted by the 24 intervenors in this proceeding is the affidavit of Mr.
25 Joseph Besade. The Licensing Board should give Mr.
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807 1 Besade's affidavit no weight for several reasons.
2 The affidavit of Mr. Besade fails to state 3 his qualifications as an expert or a fact witness.
4 The only basis for Mr. Besade's affidavit is that he 5 has attended all public meetings and read all 6 documents.
7 In order to go forward, the intervenor 8 must substantiate factual allegations with experts or 9 documents. Mr. Besade is not an expert on anything; 10 furthermore, the affidavit of Mr. Besade has no 11 relevance to these proceedings. This is nothing other 12 than that he has read the documents and attended the 13 meetings.
14 As an additional matter, the fact that Mr.
15 Besade might be called as a witness was not disclosed 16 to the staff on discovery. In response to a specific 17 interrogatory asking who the intervenor is intending 18 to present as experts, the only person disclosed was 19 David Lachbaum. Mr. Lachbaum did not submit an 20 affidavit in this case.
21 The intervenors have today raised the 22 application of Millstone to amend its name. That 23 license amendment application was published in The 24 Federal Register, on October 17th, 2001. The 30, 25 there is a 30 day period for written comments and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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808 1 requests for a hearing. That period has long since 2 run. That would have been the appropriate time to 3 raise any objections to the name change. The 4 Commission did not, in fact, receive any comments or 5 hearing requests.
6 Judge Bechhoefer asked the licensee and 7 indicated that he wanted to know from the staff 8 whether it would be useful to always have an 9 independent verification during a refueling outage.
10 NRC inspection activities are audit 11 activities. This is because of our resource 12 limitations. We try to cover as much as possible of 13 those activities that are very important. Part of the 14 refueling outage inspection procedures does involve 15 witnessing the fuel movements.
16 When we see that there is an issue, the 17 staff dedicates more resources; especially, the 18 resident inspectors, but, at Unit 3, there have not 19 been fuel movement problems; so, they're unlikely to 20 dedicate the 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> resources that you might suggest.
21 CHAIRMAN BECHHOEFER: My question was a 22 little-23 MS. BROCK: Oh, sorry.
24 CHAIRMAN BECHHOEFER: -- broader-25 MS. BROCK: Okay.
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809 1 CHAIRMAN BECHHOEFER: -- and what, because, 2 mostly because I was not limiting it to NRC oversight.
3 MS. BROCK: Um-hum.
4 CHAIRMAN BECHHOEFER: We don't, we don't 5 have authority to direct the staff to perform certain 6 inspection activities. I, I don't believe we do 7 anyway.
8 My question was broader. Should, should 9 there be some independent oversight, NRC staff or 10 otherwise?
11 (Pause.)
12 MS. BROCK: There is, well, on the fuel, 13 the actual fuel movements, there is a verification 14 process, but, over and above that there is, Mr.
15 Sweeney has just informed me that we require them to 16 have a Quality Assurance Program, which is called the 17 Nuclear Fuel-18 MR. SWEENEY: Nuclear Oversight.
19 MS. BROCK: The Nuclear Oversight Program, 20 which is run by the licensee, but is an independent 21 verification of all activities, as quality assurance.
22 As stated in Mr. Sweeney's affidavit, 23 human errors can never be totally eliminated. The 24 entire body of administrative controls and the 25 refueling operations in Unit 3 contain both a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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810 1 procedural specificity and the redundancy necessary to 2 preclude a single human error from presenting a 3 challenge to nuclear safety at Unit 3.
4 The administrative controls possess 5 sufficient rigor and defense in depth that, when 6 implemented by trained and properly supervised 7 workers, criticality will be precluded. There is no 8 disputed issue of fact or law requiring an 9 adjudicatory hearing, and the Board should dismiss 10 this proceeding.
11 I'll take any questions you have.
12 (Pause.)
13 MR. KELBER: Just one question. You 14 indicated that the 01 Report found no violation with 15 respect to the reporting-16 MS. BROCK: Yes.
17 MR. KELBER: -- of the, the lost fuel rods.
18 Did any other group, within the NRC, also 19 found no violation with respect to that?
20 MS. BROCK: The 01 Report found no willful 21 violation with respect to the loss of-22 MR. KELBER: Willful violations.
23 MS. BROCK: -- fuel, with respect to the 24 lost fuel rods.
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811 1 found two apparent violations. One was an apparent 2 violation of the reporting requirement, failure to 3 report it within the 30 day time period, and the other 4 was failure to account.
5 That is still, we just received the 6 licensee's response to those violations, and it will 7 now go to, will go to, it will be evaluated by the 8 staff.
9 MR. KELBER: So, so, you're still 10 evaluating that? You have not determined, yet, 11 whether there was an actual violation?
12 MS. BROCK: Yes.
13 MR. KELBER: It's an alleged violation up 14 to now?
15 MS. BROCK: Yes.
16 MR. KELBER: And the-17 MS. BROCK: We received the licensee's 18 response late.
19 MR. KELBER: The 30 day requirement, what 20 sort of requirements are there with respect to the 21 threshold of the problem or identification of a 22 problem when the 30 days starts counting, or is that 23 the thing you're trying to determine now?
24 MS. BROCK: I'm not sure I understand your 25 question.
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812 1 MR. KELBER: Okay. You say that there is 2 a 30 day reporting requirement?
3 MS. BROCK: Um-hum.
4 MR. KELBER: A reporting requirement for 5 what? Does the pro -- how carefully does the problem 6 have to be identified before the 30 days starts 7 ticking is my point?
8 MS. BROCK: I, I think that's a, that's a 9 good question, and that would, certainly, be a matter 10 of much debate.
11 (Pause.)
12 MS. BROCK: It's within 30 days after the 13 occurrence of any lost, stolen or missing licensed 14 material becomes known to the licensee.
15 So, it goes back to this definition of, 16 "When are things actually lost?" That's 17 20.2201(a) (2).
18 (Pause.)
19 MR. KELBER: All right. Thank you.
20 MS. BROCK: You're welcome.
21 (Pause.)
22 CHAIRMAN BECHHOEFER: I have just a small 23 follow-up question.
24 MS. BROCK: Sure.
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813 1 decided whether to initiate any, either notice of 2 violation or notice of civil penalty or some penalty 3 with respect to whether September of 2000 or November 4 of 2000 was the appropriate date to submit a report?
5 MS. BROCK: No.
6 CHAIRMAN BECHHOEFER: Has the staff 7 decided on anything there?
8 MS. BROCK: Not to my knowledge. We 9 received the response from the licensee on Friday-10 CHAIRMAN BECHHOEFER: All right.
11 MS. BROCK: -- to the apparent violation, 12 and that should be coming forward, and when it does, 13 we'll give the Board notification.
14 CHAIRMAN BECHHOEFER: Now, if we were to 15 decide that there is a disputed fact on that 16 question,-
17 MS. BROCK: Um-hum?
18 CHAIRMAN BECHHOEFER: -- would that 19 disputed fact be better resolved in, in conjunction 20 with a proceeding based on the violation?
21 MS. BROCK: Well,-
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814 1 then. If it weren't challenged, if it were just 2 acknowledged, then the staff remedy, whatever it 3 proposed, goes into effect.
4 Would that be a, a more appropriate forum 5 to, to litigate such questions?
6 MS. BROCK: Well, yes, certainly the 7 question of whether or not there was, in fact, a 8 reporting violation is more appropriately litigated in 9 the enforcement process; instead of in this 10 proceeding, partially because it's difficult to see 11 how this, that would be the type of disputed facts 12 that would rise to the level necessary in Sub-Part K.
13 That would be the kind of, that, that 14 would be the issue that this Board's decision about 15 whether or not to allow an increased capacity in spent 16 fuel, if Unit 3 should go forward.
17 It's difficult to see how the Board's 18 decision could rest on the enforcement question of the 19 reporting violations. So, yes, I think my answer to 20 your question would be, yes, that would be more 21 appropriately litigated in the enforcement proceeding.
22 CHAIRMAN BECHHOEFER: Assuming one was 23 brought.
24 MS. BROCK: Assuming there was one; right.
25 CHAIRMAN BECHHOEFER: Right. Right.
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815 1 (Pause.)
2 CHAIRMAN BECHHOEFER: Now, what if I 3 changed the scope to say, what about the reporting 4 requirement, if any, which McGuire would raise, the 5 McGuire decision, informing the Licensing Board of 6 ongoing activities that may have an affect on 7 licensing requirements?
8 MS. BROCK: We don't believe that McGuire 9 would require this particular notification. One 10 thing, partially, because looking back at the record 11 in this case and the question of whether or not this 12 would even be considered relevant, well, there is, 13 there is two sort of separate issues.
14 One is the issue of whether they even 15 knew. It's easy to see in hindsight that the material 16 was missing, and that there was, and it was stolen or 17 that it was unaccounted for, but, at the time, there 18 was no reason to think that it was, there wasn't even 19 a question that it was material to these proceedings, 20 partially because this was at Unit 3, and that took 21 place in Unit 1.
22 The Board had actually limited the 23 intervenors discover -- in looking back at this, the 24 Licensing Board's memorandum and order from a 25 telephone conference in May of, May 26th of 2000, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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816 1 limiting -- let me try to get the exact--.
2 (Pause.)
3 MS. BROCK: Limited the discovery to 4 Millstone Unit 3 since the last refueling or restart, 5 whichever was earlier, which would have tended to 6 exclude the fuel, the response of the fuel rods out of 7 Unit 1.
8 (Pause.)
9 CHAIRMAN BECHHOEFER: I think you've 10 answered my questions. Thank you.
11 MS. BROCK: Thank you, very much.
12 MR. KELBER: Thank you.
13 MS. BROCK: Thank you, very much.
14 (Pause.)
15 CHAIRMAN BECHHOEFER: Ms. Burton, before 16 you, your rebuttal, would you like a short break or 17 not?
18 MS. BURTON: Oh, I would appreciate that.
19 Thank you, very much.
20 CHAIRMAN BECHHOEFER: All right. Maybe a 21 10 minute break?
22 MS. BURTON: Fine. Thank you.
23 (A brief recess was held from 2:13 to 2 :19 24 p.m.)
25 CHAIRMAN BECHHOEFER: We're back on the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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817 1 record.
2 Ms. Burton?
3 (Pause.)
4 MS. BURTON: Yes. Thank you.
5 I'm going to begin by addressing the 6 comments of the licensee first, and then the staff 7 comments, and then I will summarize; so, you'll know 8 how I am proceeding.
9 Beginning with Mr. Repka, he indicated 10 that there is no commonality of procedure between the 11 Unit 3 spent fuel pool and the issue here with Unit 1.
12 We disagree with that because, clearly, 13 there are several areas of commonality. One is the 14 human element that applies to both Unit 1 and what 15 happened there, and it applies, as well, to the 16 application to increase the storage capacity at Unit 17 3, and it will continue to be a factor.
18 Other commonalities, of course, include 19 the, the management of, of the station, and the 20 various departments that have shared jurisdiction over 21 the spent fuel pools.
22 It may be that Engineering is a separate 23 department from the department that actually directs 24 actual fuel movement, but there, certainly, would be 25 station commonalities that would, would be involved NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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818 1 here.
2 Mr. Repka indicated that, in the view of 3 the licensee, the issue of the missing spent fuel rods 4 from Unit 1 is an accident of history and, and 5 represents something in the deep past.
6 Well, it's true, there is an aspect of it 7 that is historical; however, the continuing failure by 8 that licensee to come to grips with its loss of 9 control and accountability continued for several 10 decades, and, ultimately, the disclosure was made, as 11 I think we are all recognizing, under circumstances 12 that are, at the very least, problematical, and that 13 is an issue of history as well, but current history, 14 and the current history is, is still being created.
15 We understand that the NRC staff has not 16 yet made a final determination as to its review of all 17 of these matters.
18 What hasn't changed; however, have, has 19 been the requirement of maintaining closely precise 20 inventory over nuclear fuels, and the requirements to 21 report the loss.
22 Perhaps, I should, at this point, mention 23 something that the staff brought up, and the reference 24 to 10 CFR 20.2201 (a) (2), which states, "Within 30 days 25 after the occurrence of any lost, stolen or missing NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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819 1 licensed material becomes known to the licensee, all 2 licensed material in a quantity greater than 10 times 3 the quantity specified in Appendix C to Part 20 that 4 is still missing at the time."
5 Well, that particular sentence is 6 certainly subject to a variety of interpretations 7 because it may be that it's correctly interpreted to 8 mean, "Whenever the occurrence occurred or should have 9 been found to have occurred; such as to maintain a 10 continuing responsibility to report it."
11 Then I have further reference to 10 CFR 12 Part 74.4, which is part of Sub-Part A which defines 13 an abrupt loss, and, apparently, that's what this was, 14 which is to say a loss occurring in the time interval 15 between consecutive, sequential performances of a 16 material control test, which is designed to detect 17 anomalies potentially indicative of a loss of 18 strategic special nuclear material from a specific 19 unit introduced into a process. I've left out cause 20 in there.
21 I recognize that it has been assessed that 22 the nuclear material here is of so-called low 23 strategic significance, but the loss is one that has 24 been continuing. The failure to appropriately 25 recognize it and report it is a matter of, of current NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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820 1 history.
2 Mr. Repka has tried to distinguish away 3 the failure to maintain accountability as to the rods 4 by pointing out that there is a difference at Unit 1 5 from Unit 3, because at Unit 3 the rods are finally 6 put, are placed in fuel assemblies in the spent fuel 7 pools.
8 While that may be true, that really is a 9 distinction of no substantive significance. It would 10 just vary with degree as far as what potential 11 quantity of material might be missing, and I think 12 Judge Bechhoefer was quite correct to question the 13 staff as to whether it made any difference in its 14 analysis as to whether 25 rods had been missing, as 15 opposed to two or some other number.
16 Mr. Repka has indicated that Unit 3 has 17 been able to reconcile its spent fuel in, in the pool.
18 That's comforting to hear. We would hope so. A great 19 deal of attention has been spotlighted here on this 20 company and its conduct with regard to spent fuel.
21 There have been negative comments here 22 casting aspersions on, not personally necessarily, but 23 Mr. Joseph Besade, the Secretary of the Connecticut 24 Coalition against Millstone.
25 Mr. Repka said that he appears to have no NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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821 1 discernable qualifications, and he was similarly 2 disparaged by the staff.
3 We take exception to those 4 characterizations. I'm sure that the Board is well 5 aware, by now, in these proceedings, as to Mr.
6 Besade's significant background in, unlike the members 7 of the Board, unlike Mr. Repka, and, and various other 8 people here, Mr. Besade actually spent time and worked 9 at the Millstone Nuclear Power Station, and, and 10 brings the information that he gleaned from that 11 experience here today, as well as other occasions.
12 When he indicates in his affidavit that he 13 has attended meetings, as, as this meeting, and that 14 he has read materials, that covers a very wide body of 15 time, effort and attention to what has been said at 16 all these meetings and what appears in the documents; 17 so, he may not be expert with a Ph.D, but he is a 18 reliable declarant in these proceedings.
19 Now, Mr. Repka was asked to address 20 himself to the issue as to whether or not the licensee 21 should have notified this Board at a different, should 22 have notified this Board, this proceeding, as to the 23 "discovery" of the missing fuel rods.
24 If I understood him correctly, I think 25 that his answer was, "No", but I, we find that very NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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822 1 curious, and we heard him say here today that he first 2 became aware of the issue of the missing rods after 3 the Connecticut Coalition Against Millstone brought 4 that issue to the attention of this Board.
5 That is simply something that we cannot 6 accept in light of the circumstances.
7 We understand that the failure of a 8 licensee in this country to account for its own highly 9 radioactive spent fuel is, if it can be established 10 that that is the case, can subject a licensee to very 11 serious penalty; potentially, criminal penalty, and 12 I'm not suggesting that there has been anything of a 13 criminal nature here, but apart from that, there, 14 certainly, are other penalties. For instance, the NRC 15 could revoke the licensee's license, could shut it 16 down within the proper realm of it's jur -
17 jurisdiction.
18 It could, also, impose fines and 19 penalties, which, if we wanted to calculate the period 20 since the abrupt loss that I referenced earlier in 10 21 CFR Part 74, to the present time, and we calculated a 22 maximum penalty because this is a, a violation of 23 great seriousness -- if we calculated the maximum 24 penalty that the NRC could impose for this period of 25 time, it would, it could reach a level that would make NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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823 1 the 1.3 billion dollar purchase price of this company, 2 this site, by Dominion, seem to be a mere triviality.
3 We would represent here that given the 4 prospect of such potentially serious enforcement 5 response from the NRC, it simply does not appear to us 6 to have very much credibility that Mr. Repka indicated 7 that he first heard about this from the intervenors 8 here.
9 I just want to mention for the record, and 10 I'm sure the Board must be aware of it, but the 11 disclosure of the, public disclosure of the fact of 12 "discovery" of the missing fuel rods was made by the 13 NRC. It was not made publicly by the licensee, and, 14 in fact, the licensee presumably would have heard from 15 the NRC after the NRC published a little notice not 16 prominently.
17 When it had a very full, very informative 18 webpage where it published a lot of press releases on 19 matters of potentially far less interest than a 20 discovery of missing spent fuel rods at the Millstone 21 Nuclear Power Station, the NRC decided to publish it 22 in a probably less frequently visited part of the 23 site, which was its weekly reports, and it only 24 happened that somebody happened to see that, that, 25 ultimately, everybody in the whole world, I think, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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824 1 came to find out about this.
2 It, it's very surprising to us to hear 3 that the attorney for this company did not know about 4 that until after he heard about it in this proceeding 5 because of what this public interest, civic group 6 found out from looking at the NRC's website.
7 MR. COLE: Now, clearly, there is an 8 obligation, and we're appreciative of the distribution 9 by Judge Bechhoefer of some authority here, on the 10 obligation on the part of a licensee to share 11 information with a Licensing Board.
12 Clearly, the licensee had an obligation to 13 share this information as soon as it had it; at least, 14 by September 12th if not before then, and there is 15 some reason to believe that it had the information 16 before then.
17 These proceedings were ongoing at that 18 time. The company was very well aware of that. It 19 was a very public proceeding that was going on. It 20 was reported widely in the press that there was a 21 proceeding before the Atomic Safety & Licensing Board 22 regarding expansion of Millstone 3 Unit, Unit 3 spent 23 fuel pool.
24 Clearly, there is an obligation, under all 25 of these authorities, for the licensee to notify, if NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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825 1 not the parties, which, in this case, would be the 2 intervenors, but, at least the Board and, even if 3 there were issues of confidentiality, those could be 4 entrusted to the Board, and, and it appears from this 5 authority that that is what should have been done, and 6 the Board could have and should have exercised its 7 discretion as to whether or not the information seemed 8 to rise to the level that it ought to be formally 9 disclosed in these proceedings.
10 I don't think that the Board would have 11 had to struggle very much with that issue, as to 12 whether or not the information should have been 13 presented to the participants here once the 14 information became known to the Board, if it had been, 15 prior to the Board's decision.
16 There doesn't seem to be any proper reason 17 for the licensee to have failed to bring that 18 information to the attention of the parties here and 19 this Board during the proceedings; other than to try 20 to stem the tide of public indignation over this and 21 to try to orchestrate the disclosure of information 22 such that it would not interfere in anyway with the 23 proposed sale of this plant to Dominion.
24 We can't think of any good purpose, in 25 terms of the public interest, that could have or was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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826 1 served by the failure of the licensee to share this 2 information with the parties in this proceeding.
3 Mr. Repka asked, perhaps somewhat 4 rhetorically, "What was the prejudice since we found 5 out about it eventually?"
6 Well, as I was saying, we found out about 7 it only because the NRC put it on the website in an 8 obscure place that somebody happened to see. If 9 nobody had seen that, we wouldn't have known about it 10 still, and there would be this very serious issue and 11 these proceedings.
12 It's possible that years ahead somebody 13 might have said, "Well, these proceedings should be 14 reopened," in the year 2040 because of this issue.
15 We were prejudiced because we should have 16 had this information when we did discovery in the 17 summer of, of the year 2000 because we believe that it 18 that would have led to a different result, and we 19 wouldn't be here going through this sequence.
20 Mr. Repka said that we attached Michael 21 Jensen. We never did that. We didn't intend to do 22 that. We called attention to him because he had been 23 put forward by Mr. Repka as the authoritative, 24 authoritative person, at Millstone, for us to depose.
25 We haven't been given any information that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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827 1 explains to us why Mr. Jensen did not come forward at 2 that time. He was very authoritative in his 3 statements, and, as I recall, I believe that he 4 indicated that been in charge of video, monitoring 5 inside the Millstone 1 Unit fuel pool.
6 This was at the very time, if I'm not 7 mistaken, when there was going to be the initiation of 8 the so-called independent verification of the spent 9 fuel inventory. He never mentioned that to us.
10 Clearly, Mr. Jensen, in his capacity, as 11 he identified it, would have known that this process 12 was going on, or, in fact, wasn't, gave us the 13 impression it wasn't necessary because there had been, 14 essentially, he gave a green light to the conditions 15 of the Unit 1 spent fuel pool at that time.
16 We are troubled at the timing of the 17 disclosure, and the fact that it came, that it was 18 publicized. This was the disclosure of the failure to 19 maintain accountability of the spent fuel rods. That 20 it was publicly disclosed such a short time after this 21 Board's decision in October.
22 We don't believe in conspiracy theories, 23 but we do know that there had been at least two 24 individuals involved in these proceedings in the 25 general counsel's office at the NRC who have so-called NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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828 1 jumped ship to join Mr. Repka's law firm while these 2 proceedings have been underway.
3 They have indicated that they will not be 4 involved now that they've left, but the question is, 5 "Were they involved before they did leave?"
6 We think that it, that there are some 7 questions here that have given us some concern, and 8 we're not suggesting that any party here was privy to 9 any information about when a decision would come out, 10 but it, looking at the closeness of the dates, some, 11 it just doesn't look quite right from, in terms of the 12 licensee's disclosure to the NRC.
13 MR. COLE: Ms. Burton,-
14 MS. BURTON: Yes?
15 MR. COLE: -- we didn't even know when it 16 was going to-17 MS. BURTON: I'm sure, and I'm not 18 suggesting that anything like that was going on. It 19 just, can't help but be brought up in terms of the 20 closeness of the dates.
21 I'm not suggesting, in anyway -- please, 22 don't misunderstand what I've said -- that this Board 23 had any, would have had any, anything to do with any 24 of this. I hope I've been understood on that point.
25 Now, there is this question of judgement.
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829 1 Was it just an issue of judgement whether or not the 2 NRC should be notified in September or whenever, and 3 there has been discussion here of a pair of black 4 slacks and a credit card and lost keys.
5 Well, I know, the next time that I loose 6 my keys, that the State of Connecticut is not going to 7 revoke my driver's license because that doesn't 8 happen, and I don't think that Dr. Kelber's wife has 9 any legal obligation to report her missing slacks to 10 anybody. I'd be surprised if she did.
11 I think that by even thinking in these 12 terms and thinking about a class of school children at 13 Times Square or whatever, in New York, is only to 14 trivialize the seriousness of what's at stake here.
15 It really isn't a question of a judgement 16 at all. It's a question of the law, and what does the 17 law require, and what would any reasonable person 18 believe that the law requires if there is a potential 19 issue of a lose of control over radioactive waste at 20 a nuclear power plant?
21 (Pause.)
22 MS. BURTON: Another point by Mr. Repka 23 was suggesting our whole case here is based on some 24 tiny historical incident, a mere bleep on the radar 25 screen, has no large significance for anything.
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830 1 I understand why he's here to make those 2 remarks, but, really, what I think the Board needs to 3 understand, and I'm sure it probably does, is that all 4 of this occurred under a very, very bright spotlight.
5 It's not as though this were something insignificant 6 that nobody was watching.
7 It really does boggle the mind to believe 8 that while there are these proceedings underway on 9 this very issue of spent fuel pool mishandling and 10 mismanagement and, and the plant is up for sale, and 11 there are very high stakes, it's very hard to believe 12 that this could have occurred, and that there would be 13 an issue today as to whether the company violated law 14 by not reporting this when it should have.
15 The very thought that Mr. Repka would say 16 here today that, even had he known or had the company 17 known about this issue earlier on in the proceedings 18 when we were conducting discovery, that he wasn't sure 19 that it would have been reported to this body -- I 20 think he said that he wasn't sure that it would have, 21 it would, he and they would have found it to be 22 material -- that's a very disturbing concept for us to 23 have to swallow here, and it only, I believe, lends 24 further credence to our central claim here, which is 25 that there is no valid factual basis here for the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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831 1 Board to conclude that the present company does have 2 the ability or willingness to implement new and more 3 complex administrative controls in the Unit 3 spent 4 fuel pool.
5 I think Mr. Repka said that company never 6 had the chance to tell the Board because the 7 Connecticut Coalition Against Millstone beat the 8 company to it. I don't think that is correct.
9 Again, not, Mr. Repka, in addressing the 10 Unit 2 License Event Report, put it, put the Millstone 11 spin on it, which is that a historical event that 12 keeps coming back to bite has been dealt with properly 13 if it keeps coming back because it shows that at least 14 when it came back again, they were looking.
15 I think we've heard that before. I don't 16 think that that, again, entitles the Board to make the 17 finding that I've just mentioned.
18 Now, there were questions about the fuel 19 storage box. I may be mistaken, but I'm not sure that 20 the issue of the fuel storage box was actually 21 presented before to this Board and the parties in the 22 earlier proceedings. If it was, I may be mistaken.
23 I think that, in that area, we have some 24 new issues that weren't addressed in the, in the prior 25 proceedings, and the business of one spent fuel rod NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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832 1 being in that fuel storage box today, if I'm not 2 mistaken, may be new information.
3 In the questioning that took place, the 4 colloquy between the Board and Mr. Repka, I, if I'm 5 not mistaken, I think that there may be potentially 6 more significant issues as to what may end up in that 7 box, and where that box may end up in that pool, that 8 bear some closer scrutiny here.
9 In fact, Mr. Repka answered one of the 10 questions, if I'm not mistaken, such that it would 11 depend on what was at the bo -- in the box at the 12 time, but then, I think, may have contradicted himself 13 by saying that it wouldn't matter what was in the box, 14 because whatever was in the box would belong there, 15 and everything had been thought of in advance.
16 I think that that area gives rise to further concern.
17 I don't believe that when Mr. Lachbaum had 18 an opportunity to analyze the information that he 19 addressed that issue; so, I'm concerned that that 20 information may, may not have been part of what was 21 presented earlier. He did a very careful review.
22 Judge, Dr. Kelber addressed a couple of 23 questions, addressed questions as to two procedures, 24 and I just wanted to comment.
25 I think that one, some of those or one of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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833 1 those questions to Mr. Repka was, was certainly 2 leading, and I'm not sure if Dr. Kelber knows that 3 leading questions are generally not favored because 4 they have the answer in the question, and they seem to 5 make it easy for somebody to give an answer one way or 6 another based on the question, but one of the 7 questions to Mr. Repka was whether there would be 8 independent verification as to the location of the 9 spent fuel in the pool.
10 Mr. Repka said, "Yes," but what he didn't 11 answer completely, and maybe he didn't have a chance 12 to, was how that occurred because, as I recall the 13 question from Dr. Kelber, it was, "How would the 14 independent verification occur? Would it be verbally?
15 Would it be in writing or how?"
16 I don't think we got complete answers 17 there, and those should be readily, those questions 18 should have been, it seems to me, readily answerable.
19 As far as the first one, there was concern 20 that if the verification were being done by two people 21 close together at the same time looking at the same 22 instrument or whatever, then there might be a problem 23 that, after the first one spoke, the second might be 24 influenced by what he said and want to agree with him.
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834 1 position, I don't know exactly what Dr. Kelber may 2 have had in mind, but we didn't get true clarification 3 of that issue, and I think that's of concern, and, 4 also, the business of the loading of the fuel in the 5 pool because, we may remember from the earlier 6 proceedings, that sometimes it was, it was kind of 7 dark in the spent fuel room, and, in fact, there were 8 some potential mistakes, if not mistakes, made and 9 admitted to by one of the gentlemen there. He 10 couldn't see because it was too dark, and he was too 11 tired because he had been working too long.
12 If he's the guy who is going to make an 13 independent verification to the guy he's talking to, 14 I think we may have some problems if, if these issues 15 aren't adequately addressed, and it seems to be so 16 simple, but big mistakes can happen out of simple 17 things, simple miscommunication.
18 On the Sigma machine, Mr. Repka indicated 19 that after that refueling outage 6, it was replaced 20 with something else, but my understanding is that the 21 Sigma machine actually was a computer, and that it 22 frequently malfunctioned. Mr. Repka indicated that it 23 was used to save time and cost.
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835 1 we're talking about the movement of this fuel and, and 2 the reliance of people on it. I think it is safety 3 related. I just wanted to make that clarification.
4 I detected some antagonism on the part of 5 Mr. Repka to Dr., Judge Bechhoefer's question about 6 whether it would be useful to have an independent 7 monitor during refuelings; not that Mr. Repka was 8 antagonistic to Judge Bechhoefer, but that he was, he 9 seemed to be somewhat antagonistic to that concept 10 because it might, that was what I, I detected, and, 11 also, detected some negative thought about that from 12 the staff because it doesn't have resources to keep 13 these Millstone operations under watch for 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />, 14 round-the-clock periods of time.
15 We've now heard that; so, we now can 16 recognize more clearly perhaps that there is not very 17 much prospect that there will be an on site 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> or 18 less inspector, who is qualified from the NRC, to keep 19 watch over the fuel movements at Millstone, and that, 20 therefore, makes it even more important that this 21 Board reach the right decision here, and, and is very 22 careful to look out for the health and safety of the 23 public.
24 We understand from some recent disclosures 25 that Dominion is thinking about trying to get a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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836 1 license extension here for another 20 years or so.
2 That, we're looking ahead to a great deal of increased 3 density in the storage at Millstone 3 potentially, 4 and--.
5 (Pause.)
6 MS. BURTON: That's all I wanted to say 7 about that.
8 (Pause.)
9 MS. BURTON: Turning to the staff's 10 comments, the staff seemed to be completely supportive 11 here of the licensee, and completely dismissive of 12 anything that the intervenors have put forward.
13 It was somewhat paradoxical for the staff 14 to belittle the filing of the petitioner's, but then 15 to say that the staff would be substantially 16 prejudiced if the Board considered what we filed.
17 Well, I don't, I don't think the Board would be at 18 all, but I'm having trouble reconciling those two 19 positions.
20 The staff, also, indicated that reporting 21 violations have no relation to these proceedings. We 22 disagree with that. It should be obvious that we 23 disagree with that. We think that there has been a 24 real problem with respect to untimely reporting, not 25 just to the NRC but to this Board.
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837 1 On the name change, it may be correct that 2 nobody has filed comments with the NRC, but it might, 3 also, be that nobody thought that this application 4 would be taken seriously enough by the NRC to warrant 5 comment, but I suppose time will tell.
6 (Pause.)
7 MS. BURTON: The question that Judge 8 Bechhoefer presented to the staff with respect to 9 which would be the best form for litigation as to the 10 issue of the reporting requirement and the possible 11 late reporting, and it's our position that that issue 12 is before this Board.
13 We've raised it. We've raised it that the 14 Boa -- that the licensee should have notified this 15 Board and the parties as soon as it was aware that 16 there was a problem with the fuel accountability at 17 Unit l,a nd that the, the parties, the intervenors 18 here will be prejudiced if they don't have a full 19 opportunity to litigate that issue here.
20 We're, also, concerned that even at this 21 late date, the NRC -- excuse me. The NRC currently 22 has not figured out what to do about this. We 23 understand that these proceedings were delayed at the 24 request of the staff because of the possible prospect 25 of a criminal prosecution being undertaken, and, as it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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838 1 turned out, there has not been a decision that there 2 should be a criminal prosecution, and, in fact, what 3 was, finally, it came to light what was, what our 4 proceedings were interrupted for had really very 5 little to do with substance and, in fact, did delay 6 our proceedings, and I can say, at this point, that 7 our efforts in these proceedings were, were prejudiced 8 by that, and we don't believe that the staff, now, 9 that we can look back in hindsight, had proper cause 10 to request the stay that was granted.
11 So, those are my comments with respect to 12 the prior comments of the other parties, and I have a 13 few now, a few additional comments and my closing 14 argument.
15 (Pause.)
16 MS. BURTON: This is how I will begin.
17 We are here pursuant to the Board's order 18 of May 10th, 2001, in which it agreed and ordered that 19 the proceedings be reopened to the extent, on, on 20 contention for to the extent that it bears upon both 21 the adequacy of administrative controls at the 22 Millstone 3 spent fuel pool, and Dominion Nuclear 23 Connecticut's ability or willingness to implement such 24 controls successfully.
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839 1 of material fact, and that they need to be addressed 2 in a full evidentiary hearing, and the disputed facts 3 have to do with the adequacy of administrative 4 controls, as well as the ability or willingness of 5 Millstone, of -- excuse me, of Dominion to implement 6 the controls as needed.
7 On this issue, the issue of character 8 really is germane. I'm not particularly familiar with 9 the case, the recent case cited by the NRC staff, but 10 it's very clear from the authorities that were 11 distributed by Judge Bechhoefer that the char -- that 12 character issues do have a play in these proceedings.
13 I'm particularly referencing the Three 14 Mile Island case, Metropolitan Edison Company, in 15 which the paraphrase here is that the untimely 16 provision of significant information is an important 17 measure of a licensee's character; particularly if it 18 is found to constitute a material false statement.
19 There is another paraphrase here from the 20 Houston Lighting & Power Company case. An applicant's 21 failure to notify a Board of significant information 22 may reflect a deficiency in character or competence if 23 such failure is a deliberate breech of a clearly 24 defined duty or pattern or conduct to that effect or 25 an indication of bad faith.
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840 1 Well, the very issue here is the good 2 faith and whether or not the company has good faith.
3 In other words, ability and willingness to implement 4 administrative controls that are more complex to 5 insure the public health and safety at the Unit 3 6 spent fuel pool.
7 If, in these proceedings, the company 8 wilfully withheld information, and I think we would 9 all agree now that the information about the Unit 1 10 spent fuel pool problem is significant, whether or not 11 Mr. Repka agrees it's material to these proceedings, 12 that is a matter of significance here.
13 We're not saying that the licensee 14 submitted a material false statement, but if it knew 15 that the information that this Board had was 16 incomplete, and the incompleteness has to do with 17 information that it had regarding the loss of 18 accountability of the spent fuel rods at Unit 1, then 19 I think the law could imply that it would be 20 tantamount to presenting a material false statement 21 because this Board relied upon the information that 22 the licensee presented, as did the intervenors.
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841 1 the context of what it knows about how they operate, 2 and that has come out here in these proceedings in 3 this unusual way.
4 (Pause.)
5 MS. BURTON: As I have been reviewing my 6 notes here -- I apologize that my presentation has, 7 perhaps, been somewhat disjointed -- there was a 8 comment that I had wanted to make further with respect 9 to the staff's statement.
10 Referencing the newspaper article that we 11 submitted concerning the loss of nuclear materials 12 here and abroad, I'm not sure if the staff's comment 13 indicates that it was not aware that this is a 14 phenomenon or that it's something that the NRC doesn't 15 know about, but I'm certain that the NRC should be 16 aware of it, as well as other reports through 17 Congressman Markey's office, I believe, that the NRC 18 does not even know whether people who work at these 19 power plants, and that could include Millstone, have 20 gone through any security checks; such as, to indicate 21 whether or not they may be, have been, at anytime, 22 subject to criminal penalties outside the United 23 States.
24 As these proceedings continue in-25 MR. REPKA: Judge Bechhoefer, I let this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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842 1 go on for a very long time, and this, at this point, 2 I am going to object because this discussion is beyond 3 the scope of this proceeding, beyond the scope of 4 anything that was in the affirmative cases of, of the 5 licensee and the staff, and I think it really has no 6 business being discussed here today.
7 (Pause.)
8 CHAIRMAN BECHHOEFER: Yeah, I would like 9 to comment that the matter, in general, of security 10 personnel is one that I don't think we have any 11 authority to do anything about.
12 We have referred to a ruling on that to 13 the Commission, and the Commission hasn't decided yet 14 what to do with it, whether to allow the Boards, like 15 ours, to hear evidence on this, but I think that issue 16 is beyond our authority right now to consider.
17 So, if I, if I read your comments in that 18 context, and Mr. Repka, I guess, did, also, we, 19 certainly, don't have the authority now, and I say, 20 "now", because you never know what the Commission will 21 hold, but-22 MS. BURTON: Yes, I, I appreciate that 23 comment.
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843 1 fact which are material and which can only be 2 adjudicated in a full evidentiary hearing.
3 They go to the ability and willingness of 4 the licensee to adhere to the new and more complex 5 administrative controls, and really what these 6 proceedings have done is they have highlighted how 7 there is apparently a culture at Millstone which is 8 adverse to, and has animosity toward compliance with 9 the law, legal requirements of reporting the loss and 10 continuing failure to account for spent nuclear fuel.
11 This is why, while the full spotlight and 12 public attention has been focused on this issue, the 13 question has to be asked, "If this is what they do 14 when everybody is watching, what do they do when they 15 don't think anybody is watching?"
16 It's, that, that's the case that they have 17 presented by their own conduct, which they are now 18 apparently in full agreement with the staff, has 19 occurred, at least since September 12th, recently, and 20 there may be reason to believe that it existed even 21 before that.
22 So, having said those, made those 23 comments, I thank you very much. If you have any 24 further questions?
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844 1 support of your arguments, you cited as a commonality, 2 an element of commonality between Unit 1 and Unit 3, 3 the human element.
4 Can you be more specific? Is that a 5 general comment, similar to the, the question of 6 ability and willingness, or are you talking about 7 specific elements of human performance?
8 MS. BURTON: I think I'm, I'm speaking as 9 to both, but as you recall, in our fourth contention, 10 that is the contention that holds that substituting 11 administrative controls that are subject to human 12 error, is, should not be allowed at the expense of 13 physical barriers and protections.
14 So, it has to do with that, as well as the 15 culture at, at Millstone. That, that's what I was 16 speaking about.
17 MR. KELBER: And, and there is a link 18 there with Unit 1? I mean, this, this is what I'm 19 trying to understand; the commonality between 20 procedures at Unit 1 and procedures at Unit 3?
21 MS. BURTON: There is a commonality 22 between the requirements-23 MR. KELBER: You said, you talked about 24 the human element as being one of the common links, as 25 one of the links between the two units under the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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845 1 general topic of commonality?
2 MS. BURTON: Yes.
3 MR. KELBER: And I'm trying to understand 4 what you meant by, when you said, "human element"?
5 MS. BURTON: Yes. The human factor plays 6 a critical part here in avoiding criticality in the 7 spent fuel pools at Millstone, and the human element 8 is subject to procedures, and the safety conscious 9 work climate, to the extent there may be one at 10 Millstone.
11 The safety of the public depends on the 12 human element acting in a way that honors the 13 practices and procedures that have been-14 MR. KELBER: All right. Now,-
15 MS. BURTON: -- enacted.
16 MR. KELBER: -- what I understand, when you 17 were trying to establish a link between the offense at 18 Unit 1 and Unit 3 is, you're referring, in a general 19 way, to human performance at those plants?
20 MS. BURTON: Generally, but, also, 21 specifically.
22 MR. KELBER: Well, that's what I'm trying 23 to, what specifically?
24 MS. BURTON: Yes. Well, generally, 25 because-NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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846 1 MR. KELBER: Not generally.
2 MS. BURTON: Okay.
3 MR. KELBER: Specifically?
4 MS. BURTON: Yes. Specifically, as to the 5 fact that the human element presently at the plant, 6 which extends to Unit 3, is linked with the whole 7 sequence of events concerning the "discovery" and 8 disclosure of the lack of accountability of the Unit 9 1 spent fuel rods.
10 MR. KELBER: Okay. I understand what 11 you're saying now. Thank you.
12 MS. BURTON: Okay. Thank you.
13 CHAIRMAN BECHHOEFER: I believe that I 14 would like to get the record clarified a little bit, 15 and that means that I'll have to ask the questions to 16 Mr. Repka, and maybe I should have posed these 17 earlier, but concerning personnel employed at 18 Millstone 1 and 3 or 3, do the same management 19 officials supervise operations or activities at now 20 Units 1, 2 and 3 currently, both now and in the past?
21 Are, are they interchanged between units?
22 MR. REPKA: I, I think the answer to that 23 question varies over time. In, in the past, there may 24 have been different in, in what level of what 25 management you're speaking to.
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847 1 In the past, there may have been more 2 independence between the units than there might be 3 now. Now, at this point in time, there is the same 4 management that oversees all three units.
5 At the time that this Unit 1 issue was 6 being addressed, that was not necessarily so. Unit 1 7 was in the process of being decommissioned. Personnel 8 from Entergy (phonetic) had been brought in and had 9 substantial autonomy with respect to the management 10 and oversight of that unit.
11 Before that, the management at Millstone, 12 and the approach at different times, has varied over 13 the years.
14 So, I'm not sure there is a single good 15 answer to that question, but, in general, 16 historically, the units were fairly independent, and 17 when Entergy came in with respect to Unit 1, there was 18 probably more independence than there is today.
19 MR. KELBER: Well, now, I guess we'd like 20 to more about that and what level this occurs.
21 Clearly, the reactor operators, senior 22 reactor operators, shift supervisors are dedicated to 23 certain units? They, it's very rare that a shift 24 supervisor, for example, is licensed for more than one 25 plant at a time?
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848 1 MR. REPKA: That would be correct; 2 particularly, at Millstone.
3 MR. KELBER: So,-
4 MR. REPKA: Well, at Millstone, the units 5
6 MR. KELBER: Now, at what level do they, 7 does commonality between units begin?
8 MR. REPKA: It, it really depends upon the 9 point in time. Are we talking today, or are we 10 talking in the past?
11 MR. KELBER: Well, let's talk today for 12 the moment.
13 (Pause.)
14 MR. REPKA: Yeah. As Mr. Meekhoff is 15 explaining to me, today, it would become a common 16 management at the operations management level.
17 MR. KELBER: And the-18 MR. REPKA: At that point, reporting up 19 to, to site management.
20 (Pause.)
21 MR. REPKA: And, and Mr. Meekhoff is an 22 example of that with respect to his current position.
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849 1 thing.
2 (Pause.)
3 CHAIRMAN BECHHOEFER: My next question, 4 still, still dealing with management officials, are 5 they the same as, to what extent are they the same for 6 DNC as for, previously for NNECO, to the extent 7 they're still, still working? I noticed Mr. Meekhoff 8 did serve both. Does and did serve both companies.
9 MR. REPKA: And, and that's true. There 10 are many individuals who, who continued on at 11 Millstone after the transfer.
12 There are a number of managers who are 13 from Dominion, and the, the--.
14 (Pause.)
15 MR. REPKA: Yeah, the site vice-president, 16 the chief nuclear officer are both individuals from 17 Dominion, for example, and they, of course, are common 18 to all three units.
19 CHAIRMAN BECHHOEFER: Were these persons 20 from DNC brought in, and others, who were serving in 21 a similar position, let go? Is there, are these newly 22 acquired positions?
23 MR. REPKA: They are newly acquired 24 positions in, around the time of the transfer. Every 25 individual case of reasons people left varies, and I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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850 1 couldn't make a single statement as to why any one 2 particular personnel change was made.
3 CHAIRMAN BECHHOEFER: Well, I'd like to 4 ask the same couple of questions concerning 5 engineering personnel first between Units 1, 2 and 3 6 now.
7 (Pause.)
8 MR. REPKA: First, with respect to the 9 organizations today, mechanical engineering and 10 reactor engineering are two different things, but 11 there is a common reactor engineering management for 12 all three units, and a common Mechanical Engineering 13 Department for all three units, but, again, keeping 14 those two disciplines separate.
15 (Pause.)
16 MR. REPKA: And, and, and with respect to 17 reporting relationships, Mr. McKenney points out that 18 reactor engineering today reports to corporate 19 Dominion, not to site management, but corporate 20 Dominion management based in Virginia.
21 CHAIRMAN BECHHOEFER: Not to the 22 operations manager?
23 MR. REPKA: That's correct.
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851 1 to stay away from making any categorical statement 2 that applies to all departments, but you have, have to 3 keep in mind that there is two different managements.
4 There is site management, and there is, also, 5 corporate management in Virginia.
6 MR. KELBER: Well, Judge Bechhoefer has-7 MR. REPKA: If you, if you wanted to make 8 a global statement, you would say, in general, in 9 general terms, Millstone has a history of siloed 10 organizations by the units, unitized organizations.
11 Clearly, the trend is to get away from 12 that and move away from that to bring it within the 13 umbrella of the Dominion Virginia plant structure, to 14 mirror those organizational structures and, and to 15 have some common management.
16 We see that in the position of Mr.
17 Meekhoff, again, as he explained in his affidavit, 18 where his position mirrors the position at the other 19 Virginia units, and allows some interaction and some 20 sharing of best practices.
21 MR. KELBER: While Judge Bechhoefer is 22 looking over his reference, I'd like just to make an 23 observation here based on something that Ms. Burton 24 said earlier.
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852 1 plant is safest when it's operating at full power 2 because then you have the most information about 3 what's going on.
4 I'm not casting any slant one way or the 5 other on your particular remarks, but there is a lot 6 to be said for operating at full power as much as you 7 can, and I think the, the plant is safest then.
8 In the long held technical position that 9 I've had, I've never hold the industry, or anybody 10 else, on that. It's just something that I, I 11 developed out of my own experience.
12 MR. REPKA: I think we believe, as a 13 general proposition, that a well run plant is a plant 14 that operates, and operates consistently and operates 15 well.
16 So, the fact that it's operating for long 17 cycles or, or at high capacity factors is a positive 18 not a negative.
19 MR. KELBER: Did you-20 CHAIRMAN BECHHOEFER: Yeah, I found it.
21 MS. BURTON: May I just have a rejoinder 22 to that?
23 MR. KELBER: I just, I'm not casting any 24 aspersions one way or the other, but-25 MS. BURTON: Well, then may I, may I just NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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853 1 then respond Mr. Kelber?
2 CHAIRMAN BECHHOEFER: Yeah, I found what 3 I wanted.
4 MS. BURTON: While Judge Bechhoefer is 5 looking?
6 CHAIRMAN BECHHOEFER: That's okay. You 7 may respond. I have one further follow-up question 8 for the licensees.
9 MS. BURTON: I just wanted to mention that 10 I think a world record was created at our nearby plant 11 in Hadam, Connecticut Yankee. It was well over a year 12 that it ran without shutting down, but then it never 13 ran again because when they did shutdown, they found 14 so many serious problems that, that I think the 15 decision was made, at the corporate level, that they 16 couldn't risk not being able to restart without making 17 a major economic investment in the plant.
18 So, I think that there are different 19 aspects to operating at full power sometimes.
20 CHAIRMAN BECHHOEFER: What I've found, 21 finally, was in connection with, let's see?
22 (Pause.)
23 CHAIRMAN BECHHOEFER: Mr. Meekhoff's 24 position. He says, in Paragraph 13 of his affidavit, 25 that DNC management believes that the supervisory NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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854 1 position described has been one key to the success of 2 fuel handling at North Adam, and having a supervisor 3 with an operations background in this role helps to 4 assure that administrative controls are recognized and 5 followed.
6 Is, Mr. Meekhoff, is your appointment as 7 an individual, or is there now a job description, so 8 to-speak, that requires that kind of expertise on a 9 continuing basis?
10 The question is, when you quit, whoever 11 replaces you, will they have the same operational type 12 experience that you described?
13 MR. MEEKHOFF: The answer to your question 14 is "yes" to both.
15 There was originally an individual 16 appointment based on my experience; both, my extensive 17 experience, both at Unit 1 and across the station, and 18 there is now a job description that backs that up.
19 So, if I leave and go on to some other 20 thing, somebody with similar qualifications to mine 21 will fill this position.
22 MR. KELBER: We know you can't really be 23 replaced.
24 (Laughter.)
25 MR. REPKA: That's true.
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855 1 CHAIRMAN BECHHOEFER: Okay. I have no 2 further questions.
3 Follow-up from-4 MR. REPKA: Yes, Judge Bechhoefer, may I 5 say one quick thing?
6 CHAIRMAN BECHHOEFER: Sure.
7 MR. REPKA: I have no desire to extend 8 this beyond what it needs to be extended, but having 9 listened to Ms. Burton's soliloquy for the last hour, 10 I, I feel constrained to, to say that it was a very 11 stunning and, at times, unattractive exercise in 12 misdirection, failing to engage the facts and what's 13 really at issue here, and I don't want the fact that 14 I did not object or didn't respond to many of the 15 specific items that were mentioned to be seen in 16 anyway as acquiescence or agreement with what she 17 said.
18 There were many things that flat out 19 mischaracterized and misstated what I said, and I want 20 the record to reflect that that's my view.
21 Beyond that, I want to just make one 22 further point on this, this discovery issue, and, and 23 Ms. Brock made a very excellent point in her 24 presentation, that I think, if I was judging body 25 language, kind of, I'm not sure the Board quite NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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856 1 understood what she was saying.
2 Clearly, there is some judgement involved 3 in any kind of materiality decisions; so, even if you 4 assume that Dominion, or, or the licensee at the time, 5 had the knowledge base before the motion to reopen in 6 order to make that determination, which is a 7 hypothetical situation, the operative discovery order, 8 in this case that had been issued by the Board in, I 9 don't have it in front of me, but in the, in the early 10 part of 2000, had restricted discovery on, in terms of 11 fuel loading, fuel handling errors and issues to Unit 12 3 issues that postdated the recovery.
13 So, that's an important point; that had 14 that, this ever become an issue, clearly, would have 15 entered into any materiality discussion, and I just 16 wanted to make sure the Board did not miss that point 17 because that was an excellent point.
18 (Pause.)
19 CHAIRMAN BECHHOEFER: Does the staff have 20 any further follow-up?
21 MS. BROCK: The only, the only follow-up 22 is very small.
23 Ms. Burton mentioned that she was not 24 familiar with, with the case that I was citing having 25 to do with management, character arguments.
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857 1 CHAIRMAN BECHHOEFER: Yes?
2 MS. BROCK: For the Commission, I wanted 3 to give the cite for that. It's in the matter of 4 Dominion Nuclear Connecticut, Millstone Nuclear Power 5 Station Units 2 and 3. It was CLI 0214, 54 NRC 349, 6 2001, on December 5th, 2001. That was actually a 7 Millstone case.
8 (Pause.)
9 CHAIRMAN BECHHOEFER: Ms. Burton?
10 MS. BURTON: Yes, just two brief comments 11 if I may?
12 Thank you for that citation.
13 With respect to Mr. Repka, if I have 14 misstated or mischaracterized anything that you said 15 here, I didn't mean to. I've been going through my 16 notes which may be in error, but I have tried to be 17 accurate.
18 As, as far as the issue of, of judgement, 19 certainly, there is a threshold of judgement that 20 would be expected to be applied here.
21 (Pause.)
22 MS. BURTON: I'm sorry. I just lost track 23 of what-24 (Pause.)
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858 1 lost track of what, what I wanted to say about that.
2 (Pause.)
3 MS. BURTON: But, ultimately, of course, 4 it's a, a legal determination of what the, what the 5 requirement is by law, and to simply say that it's 6 easy to look back in hindsight and, and forgive poor 7 judgement, I think the issue that we have here goes 8 way beyond excusing poor judgement in terms of the 9 recognition of the failure of accountability and the 10 failure to make a timely report.
11 That's all I wanted to say. Thank you.
12 CHAIRMAN BECHHOEFER: Okay.
13 (Pause.)
14 CHAIRMAN BECHHOEFER: I guess the various 15 presentations are concluded for the day. We will take 16 all of this into account, and it probably will take us 17 several months to issue a decision. I don't know 18 precisely when.
19 Judge Cole and I have a long trial down in 20 Tennessee that's in our future.
21 MR. COLE: Near future.
22 CHAIRMAN BECHHOEFER: Near future. So, we 23 will be spending a lot of time doing that, and we will 24 try to bring you a decision as soon as we can.
25 So, thank you for being here.
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859 1 MS. BURTON: Thank you.
2 (Whereupon, on April 2nd, 2002, at 3:30 3 p.m., the above-entitled hearing was closed.)
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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: 50 423-LA-3 Location: Telephone Conference 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.
Official Reporter Neal R. Gross & Co., Inc.
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