ML20247C404
| ML20247C404 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee  |
| Issue date: | 03/22/1989 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#289-8407 OLA, NUDOCS 8903300184 | |
| Download: ML20247C404 (90) | |
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O UNITED STATES NUCLEAR REGULATORY COMMISSION 1
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ATOMIC SAFETY & LICENSING BOARD ln the Matter of: l
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VERMONT YANKEE NUCLEAR POWER CORPORATION ) Docket No. 50-271-OLA
) (Spent fuel expansion)
(Vermont Yankee Power Station) )
O Pages: 341 through 430 Place: Brattleboro, Vermont Date: March 22, 1989
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\ HERITAGE REPORTING CORPORATION OficialReporters 1220 L Street, N.W., Suite 600 Washington, D.C. 20005 8903300184 890322 (202) 628-4888 .
341 1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 2 - Before the Atomic Safety & Licensing Board 3 -In the Matter of:
4 VERMONT. YANKEE NUCLEAR POWER CORPORATION I
5 (Vermont Yankee Nuclear Power Station) 6 Docket No. 50-271-OLA (Spent fuel pool expansion) .
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U.S. Courthouse 8 204 Main Street Brattleboro, Vermont 9 Wednesday, March 22, 1989 10 The above-entitled matter came on for hearing 11 at 9:30 a.m.
12 O 13 DEFORE: CHARLES BECHHOEFER, GUSTAVE A. LINENBERGER, Administrative Law Judges 14 APPEARANCES :
15 On-behalf of the Applicant:
16 ROPES & GRAY 17 One International Place l
Boston, Mass. 02110 l 18 BY: R.K. GAD, III 19 On behalf of the Intervenor, NECNP:
l l 20 HARMON, CURRAN & TOUSLEY 2001 S. Street N.W.
21 Suite 430 Washington, D.C. 20009 22 BY: 'ANDREA C. FERSTER, ESQ.
DEAN TOUSLEY, ESQ.
23 TANKOOS REPORTING COMPANY, INC.
i 24 150 Nassau Street 223 Jericho Turnpike
! New York, N.Y. 10038 Mineola, N.Y.11501 0 25 <212 > 34 e-eee2 <51e>741-5235
1 l 342 10 1 APPEARANCES: (Cont' d. )
2 On behalf of the State of Vermont:
l l 3 GEORGE YOUNG, ESQ.
Special Counsel.
4 Department of Public Service 120 State Street-5 Montpelier, VT 05602 6 On behalf of the NRC:
7 ANN P. HODGDON, ESQ.
PATRICIA JEHLE, ESQ.
8 Nuclear Regulatory Commission Washington, D.C.
9 10 11 l O 12 13 14 ,
i 15 1
'16 17 18 19 i 20 21 22 23 24 0 .25
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1 PROCEEDINGS 2 JUDGE BECHHOEFER: Good morning, ladies 3 and gentlemen. This is an oral argument in the 4 proceeding involving the spent fuel pool expansion 5 for the Vermont Yankee Nuclear Power Plant. the 6 Licensing Board today will consist of only twc 7 members. The third, Judge Carpenter, fell ill 8 yesterday and was not able to make the trip up here.
9 So, we will be sitting as a quorum.
10 on my left is Judge Linenberger, who is a 11 nuclear engineer, and I ' mn Charles Bechhoefer.- I am I 12 an attorney. Both of us are with the Atomic Safety 13 & Licensing Board panel of the NRC.
14 At this stage, I would like the various i
15 parties to introduce themselves for the record.
16 Start on my left.
.)
17 MS. FERSTER:' My name is Andrea Ferster.
18 To my right is Dean Tousley. Both of us are 19 attorneys representing the New England Coalition on 20 Nuclear Pollution. To my far right is Steve 21 Sholee (ph. ) , who is a consultant who has submitted a 22 testimony or prepared the testimony that we 23 submitted on March 1st.
24 MR. YOUNG: My name is George Young. I
() 25 represent the Vermont Department of Public Service l
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1 on' behalf of the State of Vermont.- Samuel Press, 2 who has entered an appearance in this case, is 3 unable to attend. With me is William Sherman, who 4 is the State of Vermont's nuclear engineer.
5 MS. HODGDON: I am Ann Hodgdon. I 6 represent the NRC staff. To my right is Morton 7 Fairtile, acting project manager-for this licensing 8 project. To my left is Patricia Jehle, J.E.H.L.E.,
9 who is also NRC staff counsel. I also have with me-10 Joan Kudrick, sitting in the back, K.U.D.R.I.C.K.
11 MR. GAD: If your Honor please, my name
) 12 is Bob Gad of the firm of R' pes o & Gray, Boston._ I 13 appear, having previously appeared, on behalf of the 14 licensee, Vermont' Yankee. I am accompanied this 15 morning by this group of. folks sitting in the jury 1
16 box, who are the individuals who-have submitted the 17 sworn written testimony and the sworn written 3
18 rebuttal testimony previously filed by Vermont 19 Yankee.
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They are identified on the cover of each of 20 those. .
21 JUDGE BECHHOEFER: At this stage I would 22 like to ask the parties whether they have any 23 objections or suggestions as to the way the .
1 24 furniture in the room is set up? I do this because :
25 it is possible that there will be witnesses and if u- _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - _ _ __
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1 we have a panel of witnesses, we may need to use-one )
-j 2 of the tables for the panels. I am not sure how 3 that will work. Alternatively, it may be possible 1
4 to take testimony ~directly from the jury box, if It may not be necessary to hear 5 that is necessary. 1 l
6 testimony at all today. I l
7 MR. GAD: For the record, your Honor, we 8 are indifferent to'how you arrange the courtroom.
I 9 will_give up my table to anybody who wants it and go 10 sit in the jury box. i 1
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11 JUDGE BECHHOEFER: Well, if the occasion
()- 12 arises, we will see how we can convenient 3'i arrange 1
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13 the room so that the parties can observe the 14 witnesses and hear the witnesses, et cetera.
15 By way of procedure, this oral argument 16 is a part of the Commission's hybrid hearing ]
17 procedures for dealing with spent fuel pool 18 expansions such as this case is. The provision for 19 oral argument is set forth in 10 CFR 2.1113.
20 The purpose of an oral argument is i
21 essentially, the way we view it, comparable to 22 hearing motions for summary disposition. And if 23 'after the argument it appears that there is a 24 substantial d;ikerence of opinion, difference of O 25 factual opinion on an issue or a question, and it is
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i 1 a significant question without which the Commission l 2 could not reach a final decision,.then we would be l
3 required, as I view it, as we view it, to hold an ;
l 4 evidentiary hearing. We would establish in a i 5 ruling, following this oral argument, exactly which i
6 issues met the criteria set forth in the rules and j 7 what the exact matters in dispute would be at an i
8 evidentiary hearing.
9 In addition, the way we read the rules,
, 10 at least, if there are so-called minor matters, we 1
11 would be authorized to take either supplemental
( 12 affidavits or supplemental testimony. When I 13 referred to the possibility of presenting witnesses, 14 that is what I had reference to. If there are minor 15 matters which we feel need to be resolved prior to 1 16 our being able to reach a decision on the contention 1
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i l 17 in question, we think we would be authorized to hear 18 such testimony at this oral argument and we would 19 propose to do so. We had advised the parties of l 20 this previously and they have come equipped with l 21 witnesses to fulfill that need, if required.
22 Prior to starting, we had announced that 23 we would accept oral limited appearance statements
- 24 from any members of the public who wish to make 25 them. I would inquire at this time--no one wrote in
347 O
i 1- and requested the opportunity. If anyone is here 2
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2- who wishes to make such a statement, now would be 1
3- the time to do so. j 4 Are any such person or persons present?
5 We would hear such statements at this time.
6 JUDGE BECHHOEFER: Not.seeing any, I 7 guess we will have no limited appearance statements, 8 at least at this time.
9 Let me inquire,-are the acoustics j 10 adequate for everyone.to hear me? Perhaps we could 11 work on the system, the loud speaker system, if you
() 12 can't hear.
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13 JUDGE LINENBERGER: Can you' people in the 14 back hear all right? Fine.
i 15 JUDGE BECHHOEFER: If I ever start to l
16 mumble, which I do occasionally'and~I am hard to j 17 hear, just say so. Just stand up or raise your hand 18 or say, " Louder." I won't object.
19 I think as the first order of business we j 20 should hear arguments on two motions to strike which 21 are before us. I do this in this order because if 22 some of the material ends up being stricken, it 23 would not be included as such in either the oral 24 argument or the evidentiary presentations.
O 25 Therefore, I think we should hear oral argument l
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1 first on the two motions which are before us.
2 I think first, let's start with NECNP's 3 motion. Ms. Ferster, do you wish to say something 4 and then the parties may respond?
5 MS. FERSTER: Yes, your Honor. The New 6 England Coalition on Nuclear Pollution has moved to 7 strike the licensee's testimony as it regards the l 8 adequacy of the existing spent fuel pool cooling 9 system alone--that is, without the enhancement that 10 they had formerly committed to design and install.
11 I would like to start out first by g
l (/ 12 stating NECNP was truly shocked when, one month l
13 before this oral argument, the licensee announced l
l 14 its intent to litigate the adequacy of existing 15 spent fuel pool cooling system without the 16 enhancement, which is the same enhancement that it 17 had earlier proposed to meet our contention 18 regarding the existing system.
19 JUDGE BECHHOEFER: Ms. Ferster, in terms 20 of being shocked, I sort of remember a telephone 21 call back in October where at least the possibility 22 was mentioned. Do you not remember that?
23 MS. FERSTER: The licensee has stated 24 many times that it has been the licensee's position, O 25 which aware of, that their existing system
349 l
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1 is adequate. However, in July of 1987, when '
i 2 approximately at that point the NRC staff determined j i
3 that the existing system was not adequate, the 4 licensee then proposed an enhancement to the spent l
1 5 fuel pool cooling system. And last June of I
6 1987--well, in March, they formally submitted 7 documents to the NRC which formally committed to the i 8 NRC to both design and install an enhanced spent 1
9 fuel pool cooling system. ]
10 Then in June they appeared before this l l 11 Board and argued that this formal commitment they (O ./ 12 had made to the NRC to design and install this l
13 enhancement in fact mooted our contention because 14 this enhancement provided such a great additional 15 cooling capacity that the adequacy of the existing 16 system was irrelevant. !
17 Now, in reliance on that formal 18 submission made by the licensee, this licensing 19 board ruled that we would have additional discovery 20 on the enhancement to determine whether the 21 enhancement could perform as specified. In reliance 22 on that commitment, we conducted discovery on the 1
23 enhancement to in fact try and determine whether it 24 mooted our contention.
25 The NRC staff completely dropped any
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1 effort to evaluate the adequacy of the existing 2 cooling system and instead focused entirely on-3 whether the enhancement adequately resolved NECNP's 4 contention. That was the premise under which we 5 have all proceeded in litigating whether NECNP's 6 contention raised a significant issue about the 7 adequacy of spent fuel pool' cooling.
8 So, we were genuinely surprised in 9 February, particularly in February, less than one 10 month before this oral argument, when the licensee
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11 informed the Board via a letter that somehow it no
() 12 longer was committed to design and install this 13 enhancement and, instead, they said they intended to I 14 install this enhancement only at the moment.
15 It is NECNP's position that we don't know 16 what we are litigating. If in fact-we are
! 17 litigating the existing spent fuel pool-cooling l
18 system, then why did all of us spend so much time I 19 evaluating an enhancement which supposedly would i 20 moot any inquiry into the existing system? Why did l 21 the staff not evaluate the existing spent fuel pool j 22 cooling system but, instead, only evaluated whether 23 the enhancement resolved NECNP's contention?
24 JUDGE BECHHOEFER: We are going to ask l 25 them, by the way.
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v 351 0
1 MS. FERSTER: It is our position that 2 unless and until the licensee formally--well, 3 withdraws its commitment to install this enhancement 4 with as much formality as they had in fact initially 5 committed to install it, and unless and until the 6 staff evaluates the existing system, the adequacy of 7 the existing system, spent fuel pool cooling, that t
8 issue is no longer before this Board, and it is 9 unfair to the parties to suddenly come back with a 10 litigation posture, which is how it is 11 characterized, which is fundamentally at odds with
(~%
l (_) 12 the license application documents and the ctaff 13 review documents that are now before this Board in 14 part of this proceeding.
15 It is our position that if in fact the 16 licensee intends to go forward with this enhanced l 17 spent fuel pool cooling system, that is what we 18 should be evaluating here, the adequacy, whether the 19 licensee's enhancement adequately resolves NECNP's 20 contention that the spent fuel pool cooling system !
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21 is not single failure proof. And if in fact they do f
22 not intend to install the enhancement, they should 23 withdraw their commitment formally.
24 I would think they would want to explain 7~ l v 25 to parties to this proceeding why we have spent so 1
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i 1 many months evaluating a system that does not exist
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2 and that they don't intend to install. And then the 3 staff should do an SER that evaluates the existing 4 system and then we should proceed with oral argument 5 as to whether the existing' system satisfies the
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6 single failure criteria.
7 As it is, we have had--when we first 1
1 8 learned--and it is in fact less than one month ago !
9 when we first learned that in fact the existing l 10 system was at issue. That was the first time, on 11 January 31st, thEt we learned the staff somehow had
( 12 changed its position and in response to NECNP's.
13 interrogatories at that point said that they changed i 14 their position, and that in fact they did believe 15 that the existing system did not involve a single 16 failure problem. And I say that because they have 17 not--they have not done an SER but they have made 18 that statement.
19 But until January 31st, we were in a 20 situation where all the documents before this 21 proceeding, the formal documents before this 22 proceeding, and the way this proceeding has gone has 23 led everybody to believe that the enhanced spent 24 fuel pool cooling system, the enhancement was what 25 was at issue. The fact that NECNP has on March 1st
353 0
1 -submitted testimony regarding the adequacy of the 2 existing system is purely as a defensive measure to 3 protect NECNP in the event that the licensee does 4 prevail in its viewpoint, which we regard as 5 incorrect, that the existing system alone and its 6 adequacy is before this licensing board.
7 However, we believe that it is 8 inappropriate at this point to hear any testimony on 9 the existing system, and that includes NECNP's.
10 testimony and that includes the licensee's testimony 11 and that includes the NRC staff's testimony to the
( 12 extent that they have offered any testimony on the 13 existing system.
14 I think it is very telling that even in 15 the staff's testimony they stated that they have not 16 completed their evaluation of the existing spent i 17 fuel pool cooling system, precisely for the reasons l 18 that I just stated, which was that they believed 19 that the licensee had formally committed to 20 installing an enhancement which would make any 1
21 evaluation into the adequacy of the existing system 22 irrelevant.
23 We also would like to point out that 24 while--in understanding the chronology of this O 25 contention, you have to understand that our
354' 1- contention was admitted in the summer. of ' 87. lIt 4 2 'was immediately appealed and while the parties-began 3 to conduct discovery, in fact discovery was never
-4l even completed on the existing system,. and that 5 NECNP had outstanding to the NRC staff a third set 1
l 6 of interrogatories which were never responded to 7 precisely because the existing system was no longer j 8 at issue. So, in fact,-the discovery has never even 9 been completed.
10 I don't think that it is--that we are out 11 of line in being absolutely' shocked at the fact that I () 12 the licensee has now come forward with testimony 13 that apparently takes a position that all these 14 months have been wasted in evaluating an enhancement j 15 and that the existing system is in fact adequate.
16 JUDGE LINENBERGER: Mrs. Ferster, help me -j 17 a bit here, please, because it is not clear to me 18 that the question you asked of why you spent so much 19 time doing what you-did or NECNP spent so much time 20 doing what it did really is--I don't see the answer 21 to that question really being of very much help in .;
22 any absolute way. I would think--and I am asking 23 for clarification from you here. I would think a 24 more fundamental question might be, really, what is O 25 the status of things?
l 355 1 Am.I missing something from your i
2 discussion? I am not quite.sure. l 3 MS. FERSTER: No. That is the [
4 fundamental question. What I am trying to convey is 1
5 a sense of unfairness and surprise at this. Our 1
6 position is that because the status of the 7 licensee's commitment is at this point completely up 8 in the air, that issue--they have in fact--when they 9 made that commitment, the issue as to the adequacy 10 of the existing system was no longer before this l 11 Board; that the Board's jurisdiction is limited to
( 12 the license application and that they, in effect, 13 formally amended their license application and that 14 suddenly to go back and turn the question to the 15 existing system is at this point--that is what is .
16 irrelevant. i l
17 Now, I think what we are most concerned I 18 with here is the possibility that NECNP's contention 19 will be dismissed as part of this oral argument on 20 the basis of evaluation as to the adequacy of the 21 existing system. That is what concerns me most 22 because it is apparently the licensee's j i
23 position--well, the licensee has taken the view that l I
24 at this lith hour, that the existing system is j I
25 adequate. We barely had an opportunity even to '
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1 submit testimony on it, so.the element of surprise 2 is fundamentally prejudicial 1to our ability to l
3 defend.
4 We firmly believe that the existing 5 system does not satisfy the single failure criteria..
6 If in fact the licensee intends to go forward with 7 the commitment to install the enhancement, we want 8 an opportunity to address that issue. We want to be 9 able to litigate whether the enhanced spent fuel 10 pool cooling system, if and when it is ultimately l
11 designed, satisfies the single failure criteria.
() 12 JUDGE LINENBERGER: -I gather, then, the 13 answer to my question was yes?
14 MS. FERSTER: That's right.
15 JUDGE LINENBERGER: Thank you. I I I l
16 JUDGE BECHHOEFER: Of course, just to )
17 follow up a little bit, I assume-that if we were to 18 decide that there are unresolved facts or questions 19 still at issue sufficient to warrant a full 20 evidentiary hearing, that would be equivalent in 21 yor.r minds to our granting your motion to strike?
22 MS, FERSTER: Not necessarily. We 23 believe that--yes, it would in fact be the 1
24 equivalent of a motion to strike because we believe O 25 that the enhancement--that if all evidence of the !
357 O
1 existing system is struck, then all you have before 2 you:is the adequacy of the enhancement, which has 3 not been designed. So, clearly, you have to find 4 there is a material dispute as to whether the 5 enhancement satisfies the single failure criteria 6 because it hasn't even been designed yet. So,.to l
7 that extent, yes.
8 JUDGE BECHHOEFER: At this stage, I would 9 normally hear frcm the applicants and then hear the 10 staff last. I am not sure how we fit the other 11 interveners or states in. In the first place, I am 12 not sure what' position they are taking.
13 MR. YOUNG: I can characterize that if 14 you' d like, your Honor.
15 JUDGE BECHHOEFER: Okay.
I 16 MR. YOUNG: The State of Vermont is not j 17 sure whether the appropriate action is a motion to 18 strike the testimony or simply a decision that there 19 are unres'olved issues that warrant an adjudicatory 20 hearing.
4 21 I believe I can characterize the State's 22 position as--I believe the other parties in the 23 case, except for Vermont Yankee, treated the ;
24 commitment of June 1988 as if it were an amendment, ;
O 25 even though I recognize it was not characterized as l i
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358 1 such. I would point to the fact that even the-staff 2 of the NRC suspended their safety evaluation report 3 on'the existing system and, as Ms. Ferster 4 mentioned, and at that point all focus was moved to 5 the enhanced system.
l 6 While we were informed in writing by Mr.
7 Gad in advance of submission of testimony that they 8 would be litigating the existing system at this 9 time, since the entire focus of the case had moved I 10 on to the enhanced system, we did not see at this 11 time and do not see now how going back to the i
() 12 existing system is appropriate. ,
13 MR. TOUSLEY: Mr. Chairman, may I add l 1
j 14 something very briefly?
15 JUDGE BECEHOEFER: Yes.
16 MR. TOUSLEY: The fundamental position of 3 17 NECNP coming into this proceeding was that we would 18 prefer Vermont Yankee to use something like dry cask 19 storage instead of expanding the capacity of its 20 spent fuel pool. Fundamentally, the existing system i
21 we consider to be inadequate. The proposed l l ?
22 enhancement, while not going all the way toward what l
23 we would like to see, was clearly a significant i 24 improvement in the situation. If they built the O 25 enhanced system as they described it and it in fact
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1 does all the things they now-say it would do, then 2 that would clearly be a significant improvement in-
-3' the safety of the spent fuel pool situation at.
4 Vermont Yankee. .
'l 5 So one of the reasons we don't want the 6 existing system to be litigated here today is, we ]
7 would not like to have this Board find that it is.in l 8 fact adequate because then the applicant would not-9 build the enhancement, or may not. . We would like'to 10 see the enhancement built even if we don't get our 11 ultimate goal of dry cask storage.
(h 12 JUDGE BECHHOEFER: I guess we will turn 13 to Mr. Gad.
14 MR. GAD: I must say at the outset,-your 15 Honor, that --
16 JUDGE BECHHOEFER: You. haven't.had too --
17 much chance to look at the motion but --
18 MR. GAD: I have had an opportunity. ]
i 19 I must say at the outset, your Honor, 20 that if you wanted to induce Vermont Yankee to go -l 21 ahead with the enhanced system, even though it is l 22 not technica11y'necessary, the last way to do it is -l 23 by pressing contention number one in all events.
24 The motion before your Honor now is bizarre in I
O 25 concept and it is devoid of any legal authority. ,
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1 Before you get to those two propositions, 2 however, there are two significant hurdles. The 3 first one is--and I mean exactly what I say.. The 4 first one is that the notion that NECNP was 5 surprised is neither subjectively credible nor 6 objectively acceptable. There is one thing in this-7 world that I am not very good at and that:is keeping 8 surprises. As your Honor adverted, not only was 9 this position proclaimed formally by the letter 10 dated February 3rd, it was also-stated unequivocally 11 in the telephonic pre-hearing conference of January l
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() 12 10th. And frankly, I have made this position clear l 13 every time I have had an opportunity to get on my 14 feet.
15 So, the notion that this motion should be 16 grounded because one of its elements is that NECNP 17 was surprised is just not acceptable.
18 The second threshold point, this motion 19 is untimely. Whatever the logic that says that 20 Vermont Yankee ought not to be allowed to defend 21 against contention one on one of the two alternative 22 ways of reaching the conclus3on which ultimately you l
23 must reach, that contention one is invalid--whatever
. 24 the logic behind that request, you could have made
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25 it after my statement of January 10th if not all the
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1 way back to last. June; and you could have made it 2 after the letter of February 3rd, and nobody did. q i
3 This motion, rather, comes in only after j 4 NECNP has seen the Vermont Yankee testimony. One 5 inference you can draw--it is not necessary that you 1
1 6 do, but one inference you can draw is that the 7 testimony made it clear to NECNP that they were 8 going to lose on the existing' spent fuel pool i
9 system. And, of course, if you are going to lose on q l
10 the merits, you try and get the. judges'to avoid :
11 reaching the merits. You don't'have to draw that
() 12 inference. The fact of the matter is that the l
13 motion is untimely and that alone is sufficient j
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- 4 grounds to mandate its denial.
l 15 What NECNP and counsel for the State of )
i 16 vermont seem to have forgotten is that the proposed !
j 17 addition to the spent fuel pool' cooling system--and 1
l 18 here it is important to digress for just a moment 19 because terminology may become significant. What l 20 has been proposed is that we will end up with an 21 enhanced spent fuel pool cooling system by adding
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22 the Emergency Standby Subsystem-- three initial 23 caps. That is what it is called.
24 What everyone seems to have lost sight of O 25 is that this proposal was not made of any inadequacy I
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1 in the existing spent fuel pool cooling system and 2 the proposal was not made because Vermont Yankee 3 intends to dismantle--dismantle the existing system 4 or to stop using it. Rather, the proposal was made
.5 to satisfy, or with the hope of satisfying, without 6 extending hearings and proceedings and costs and 7 delays, those who claim that additional cooling 8 capacity was offered. It was an attempt, if you 9 will, to give something to everybody, whether or not 10 necessary, in order to get out of a useless waste.of 11 time. And I, in--an effort to go the extra' mile. I
) 12 have to tell you as a tactical effort to do that, it 13 really hasn't worked very well.
14 Indeed, it is absolutely clear this 15 morning that the purpose'for which we proposed it is ;
16 now impossible of accomplishment. But the worst.
17 irony of all is this motion, because NECNP, which 18 already contends, for other reasons, that Vermont i 19 Yankee should not be allowed to defend its j 20 contention one on the grounds of the additional 21 subsystem, now wants to say that simply because we 22 were good guys and proposed this additional 23 thing--we don't need it, but we will give it to you ;
i l 24 anyhow--now we are estopped from defending the L O 25 contention on the basis of the existing system. I l
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4 1 say, the strategy is, if you are about to lose on 1 2 the merits, try and keep the judges from hearing the I
3 merits. I i
4 The proposed motion to strike is, 5 therefore, based on the erroneous notion--
6 JUDGE BECHHOEFER: Mr. Gad, could it 7 conceivably have been based in part on the staff's 8 letter to vermont Yankee of January 21, 1988, the 9 so-called status report, and perhaps conversations I 10 between the applicant and staff which preceded that?
11 MR. GAD: I don't know what your Honor I
) 12 refers to in the staff writing. I will tell you 13 that amongst the many reasons why this could not be 14 a surprise, why I said exactly what I 15 said--subjectively not credible and objectively l
16 unacceptable--is that the communications by Vermont j 17 Yankee to the NRC staff consistently, and served on 18 all parties of record, have made it clear that the 19 existing system is adequate, and the reasons why.
20 So, I don't know what your Honor is referring to, 21 but the answer is still no.
22 JUDGE BECHHOEFER: That was the staff 23 letter that said, basically, "Your proposed system 24 was unacceptable "
O 25 MR. GAD: Then the logic is backwards,
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.O 1 your Honor.' If--NECNP knows.that what the staff 2 said then--and it didn't say it was unacceptable.
3 It said we haven't got enough information.
4 JUDGE BECHHOEFER: .That's correct.
5 MR. GAD: IF NECNP really. believed that, 6 then they wouldn't be in here trying to get your 7 Honor from hearing the issue. They would be 8 welcoming you to hear the issue because they could l 9 win. I'rather think an attempt to say NECNP was the 10 victim of having been misled by that letter, no, I 11 don't think it works, your Honor.
() 12 No. They have come in here and they have 13 premised this motion on the notion that the 14 additional emergency standby subsystem was a 15 substitute for the existing spent fuel pool cooling 1
16 system. And in doing so they have.made a j 17 fundamental mistake, i 18 NECNP's motion fails to recognize or at 19 least to acknowledge that from the day that this 20 proposal was made, what is proposed is not a 21 substitute--not a substitute for the existing 22 system. There is no proposal to dismantle the 23 existing system. And there is no proposal to quit 24 using the existing cooling system.
O~ 25 The letter that made the submission made l
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1 it perfectly clear that Vermont Yankee intends-to 2 keep on using the existing system unless and 3 until--which we happen to know will never happen, 4 but nevertheless--we will use the existing system-5 unless and until it_doesn't do the job. Then we J 6 will throw the switch on the additional subsystem.
7 That has been the proposal from day one. That is; 8 why this motion is logically bizarre.
9 Consider this- your Honor?
10 JUDGE BECHHOEFER: I never read either 11 the motion or NECNP's position or the position of I
() 12 any other party as treating the enhanced system as a 13 substitute. I always thought they knew it was an 14 enhancement.
15 MR. GAD: You have~to treat it that way 16 for this motion to have any logical premise because, q 17 your Honor--let's hypothesize this. This i 18 hypothesis--
19 JUDGE BECHHOEFER: I am' unable to--
20 MR. GAD: Let me explain.
21 JUDGE BECHHOEFER: You better explain.
22 MR. GAD: What I am about to'do is a 23 hypothesis, but let me suggest to you that this l 24 happens every time we try one of these cases.-
O 25 Somebody comes into court, an opponent, and says,
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1 " Oops, you ought to deny this license because you 2 can't accomplish X function." That is the 3 contention. And the licensee will go back to his 4 books and he will say, as you say virtually every 5 single time the way these plants are designed, "You 6 are wrong, Charlie, I can accomplish the function, 7 and not only that, I can do it two different ways.
8 I can do it three different ways." And that is what 9 you go to hearing on. And the licensee comes in and 10 says, " System A will do it and also System B will do 11 it and also System C will do it," and that is
() 12 exactly where we are today. I got two ways of 13 accomplishing the necessary function.
14 The admitted contention says you can't 15 accomplish the necessary function. I am doing 16 nothing more, as, by the way, I have made clear 17 since day one--I am doing nothing more than saying I 18 have two ways to accomplish the function, System A 19 and System B. And the logic of this motion is, 20 " Hey, Judges, don't let him prove System A." What 21 they say is, " Don't let them prove System A because 22 we thought System B was going to be the only way 23 that could do it, a substitute." And that is why it 24 is a necessary, logical premise of this motion, for O 25 it to have any logic to it at all--
367
'l- JUDGE BECHHOEFER:- I; view substitute as 2 not replacement but as either X or X plus-one.- Not' 3 replacement but the enhanced. system being just that.
4 I. don't think there is any notion that the enhanced
- 5. system would replace the' existing l system. The 6 enhanced system will enhance.the existing system'and-7 that is an alternative, and that is the only thing I 8 thought the whole' argument was about.
9 MR. GAD: But if your Honor just made 10 that ruling, you have denied their motion because 11 'the enhanced system consists of the existing plus-() 12 the emergency standby. subsystem.
13 JUDGE BECHHOEFER: But their motion'says 14 don't permit any evidence on the' system standing 15 alone. You either hear the' system plus the enhanced l 16 portion of it, or nothing. That is1what I think the f 17 motion says.
18 MR. GAD: Hang on just a second.
19 JUDGE BECHHOEFER: I haven't decided on 20 it yet, but that is how I view the motion.
21 MR. GAD: Let me suggest to your Honor 22 that, again, it is important to remember terminology ;
23 so that our concepts are clear. If you-allow me to !
24' deal with spent fuel pool cooling heat loads--strike l
'o 25 cooling--spent fuel pool heat loads. If you allow l
l
v 368 1 me to deal with that with the enhanced system, then 2 I have both the existing s. stem and the additional 3 train.
4 JUDGE BECHHOEFER: I am well aware of 5 that.
6 MR. GAD: The motion says, " Don't let 7 them do that." Therefore, the motion says don't let 8 them defend, don't let them prove the ability to 9 accomplish this function with half of the system 10 they are going to have afterwards. That is why I 11 said at the outset, it is logically bizarre, unless l
) 12 you misread the proposal to say we are going to l
l 13 substitute one for the other and throw away the a
14 other after we have put in the new. As your Honor )
15 pointed out, we have never from day one said that.
I 16 If this were an ECCS case and the issue j 17 was do you have the ability to inject coolant under 18 a certain set of circumstances, we would come in and 19 say yes, we have got this system which can do it.
20 If for any reason you don't like that, we have also 21 got that system that can do it, and we can use 22 either one.
23 In real--
24 JUDGE BECHHOEFER: For an ECCS system we O 25 might take five years to find out, however.
v.
369' I
(
i i
I 1 MR. GAD:- Maybe yes, maybe no, but nobody j l ,
2 would file a motion saying, " Don't let him use train !
3 A." That is why I say it is logically bizarre. j 4 JUDGE LINENBERGER: Mr. Gad?
5 MR. GAD: Your Honor.
6 JUDGE LINENBERGER: Pardon me here, but 7 some minutes ago you used the phrase "unless or .)
l I
8 until."
l 9 MR. GAD: Yes, your Honor. I 10 JUDGE LINENBERGER: Do you have the 1
l 11 context in which you used that?-
) 12 MR. GAD: Yes, your Honor. I said 13 normally--
14 JUDGE LINENBERGER: Let me say that that 15 statement standing alone somehow leaves in'my mind a 16 mismatch with what subsequently you have'said l
17 because I thought the underlying message of that 18 "unless or until" statement was the following, and 19 please correct me if I have a misinterpretation 20 here: That the existing system, despite the 21 commitment of last June to go to an enhanced system, 22 which would include certain new things plus the '
23 existing system--that the existing system would, 24 itself, continue to be used unless or until. Now O 25 that says, to me, that the commitment to enhancement-l
_ = - _ - _ _ _ _ _ _
370
(
1 is really just something hanging out in left or 2 right field, wherever, that will not be invoked, 3 adopted, used, unless or until something is found to 4 be wrong or inadequate with the existing system.
5 Now, do I misinterpret?
6 MR. GAD: You have it exactly correct, 7 your Honor. If I may, the commitment was to design, 8 build, install and test the enhanced subsystem.
9 When you--I'm sorry. I have blown my own rule here.
10 The emergency standard subsystem. So that when you 11 are through, your spent fuel pool cooling function
) 12 has four trains. Used to have two trains, now it is 13 going to have four.
14 In real life, even with two trains you 15 normally spin only one. You get the other going 16 only if pool temperature is rising. The commitment 17 from day one has been that if you put a load on the 18 pool, you flip the switch on train A of existing 19 spent fuel pool cooling. If that doesn't control 20 the temperature, you flip the switch on train B.
21 That will. If for any reason, then, you have your 22 design basis acciden* and you lose one train of 23 spent fuel pool cooling, you take a look at the
- p. 24 thermometer. If the thermometer doesn't rise--and
' ') 25 in real life it never will--then you are not going i
371 1
1 to flip on trains three and four. You are not going j l
2 to do it. There is no reason to do it. That is not i 3 how these plants are run. If on the other hand, the 4 needle does rise, then you do flip it on.
5 So from day one, what was to be added is l
6 a system, and.it is going to be added under the i I'
l 7 commitment in all events. That is different from 8 when do you turn it on. It will be turned on as 9 needed just like all the other systems in this l
l 10 plant. l 11 But the fundamental point is, it is not a
) 12 substitute. The NECNP motion necessarily says, 13 " Don't let them litigate on the old systems they are l
14 throwing out because they are putting in new ones,"
15 that is wrong. We never said we were throwing them 16 out. We have, just like other plants and other 17 functions in this one, we are just adding one more 18 way of accomplishing the function, which translates, 19 for today's purposes, into one more way of defeating 20 the contention.
21 Give me just a couple of seconds because 22 I think this is also critical.
23 The NECNP motion is premised for its
,s 24 legal warrant.on a supposed legal rule to the effect 25 that no party can contend for something unless the
372 m
b 1 NRC staff has considered the point in its published 2 SCR. That is the rule. NECNP--and on its face, of 3 course, that doesn't sound like it ought to be the 4 right rule because that would give an awful lot of 5 power to the staff to shorten a lot of hearings. In 6 fact, it is not the rule.
7 NECNP bases its assertion that that is 8 the law on three case's. If you take a look at 9 them, one of them had nothing whatsoever to do with 10 such an issue. It had to do, rather, with whether 11 or not you could do a non-merits dismissal on
/"T
(_) 12 grounds of res judicata or issue preclusion before 13 the staff had had issued its SCR. We are not 14 talking about non-merits. l i
1 15 The second of the cases that NECNP sites ]
l 16 also had to do with disposing of a contention on 17 essentially a non-merits basis, a completely 18 different proposition. In fact, it had to do with, 19 as I recall, contentions that had been held in sua 20 sponte by the Board after the withdrawal of the 21 party, but the critical fact is that when NECNP 22 tells you that they are right on the law because of 23 a decision called LBP 8138, they have left something 7.s 24 out. That is, if you go look at CLI 8136, 14 NRC
(~'I 25 1111, you will find that the authority that NECNP
(
373 O
1 relies upon was vacatad by the Commission because it 2 was wrong.
3 The third of their case's is ALAB 581.
4 Once again, ALAB 581 doesn't even establish the 5 proposition that NECNP contends for, but, as always, 6 I have two ways of dealing with it because even if 7 it did, if you take a look at CLI 80-12, 11 NRC 514, 8 you will see that ALAB .581 was reversed again by the 9 Commission because it was wrong.
10 NECNP's motion is totally devoid of legal 11 authority. They cited to you cases that have
() 12 nothing to do with this issue or got reversed or 13 both. It is devoid of any logic. It is untimely.
14 And, frankly, it is premised on a notion of surprise 15 that ought to be difficult to swallow. From all 16 that, it probably comes as no surprise that I urge 17 the motion be denied.
18 JUDGE BECHHOEFER: Ms. Hodgdon?
19 MS. HODGDON: The NRC staff was not 20 served with a copy of the motion--
21 JUDGE BECHHOEFER: Until about five 22 minutes ago.
23 MS. HODGDON: By NECNP. However, it did 24 receive a copy from the Licensing Board this morning O 25 and has not been able or had the opportunity to read
m
-374 i
(~) ;
1 1 it because it listened to oral argument instead.
2 So, what the staff is doing now is responding to the 3 oral argument and not to anything that might be ]
4 written here.
5 I suppose I could.saj that we.were 6 surprised but--' !
7 JUDGE BECHHOEFER: The certificate of 8 service does show it was faxed to you, but I know we 9 have had fax problems in our office occasionally.
10 MS. HODGDON: I didn't get to the part 11 which shows it was faxed to us. We did not in any
() 12 event receive it so we didn't receive service, I 13 should say, of the motion.
14 However, the staff would like to address 15 some of the points made here, made in oral argument 16 here and not in the written motion, which, as I 3
1 17 said, we haven't had an opportunity to read.
18 As regards surprise, the staff was a 19 party to the telephone conference call held on 20 January 10, 1989, a memorandum and order of which ,
.I 21 exists dated January 12, 1989. On page three of 22 that memorandum and order, the Board speaks of the 23 scope of the response to contention one. The Board. l 24 says that the Board inquired as to how the applicant O 25 intended to respond to contention one. The
375' O
1 applicant indicated that it would respond to the
'2 contention in alternative forms both using and not 3 using.the supplemental. cooling system. I understand 4 by that the enhanced system.
5 "The Board requested that.the applicant-6 inform the board and parties," et~ cetera. .So, to 7 preclude any surprise at the oral argument, it says.
8 So, as Mr. Gad has said, the licensee did write a-L 9 letter.on February 3rd.
10 As to surprise, then, NECNP'can hardly 11 state with any accuracy, as they did-inLfact state,
() 12 that they are surprised because they.only just heard-i 13 about this matter when in fact they heard about'it l
14 on January 10th. At that time, any objection might 15 have been timely, but we didn't hear about it.at-16 that time. We don't' hear about it until'now, this 17 morning. So, it does seem that NECNP's motion is 18 untimely.
19 Therefore, and on such merits I have 20 heard argued, it would seem to lack merit-and should 21 not be granted.
22 I would like to speak to several 23 mischaracterizations regarding staff actions of l,
1 24 NECNP's. NECNP stated that in' June of 1987 the NRC-O 25 determined that the existing system-was not l
1 376 .
i
(/
I j
l l
1 adequate. The NRC never determined that the 2 existing system was not adequate. Not in 1987 or at 3 any other time. The status report from which Judge 4 Bechhoefer read dated January 1988, well over a year j 5 ago, raises certain questions in the staff's review j
)
6 at that time. Some of those questions were j
7 resolved, some of them were not resolved. In any j 8 event, when the enhancement surfaced in February of 9 1988 and subsequently was addressed in a document of I l i l 10 June 7, 1988, the staff did evaluate the new system, 11 the emergency standby system, and didn't pursue the
() 12 old system beyond what it had already done at that 13 time.
14 However, NECNP's statement that the staff 15 did not respond to discovery during the summer of 1
16 1987 because it abandoned reviewing the old system j l 17 or the existing system, that statement is simply not 18 true. I don't know where NECNP gets its 19 information. The fact is that the staff did not 20 respond at that time to one round of discovery. It 21 did subsequently supply those draft answers to NECNP 22 in subsequent discovery. So that the reason given 23 for the staff's failure to respond at that time is 24 just simply not true.
25 And in any event, that was the summer of
377 O
1 1987. The proposal for the enhanced system did not 2 come in until February.
3 JUDGE BECRHOEFER: Ms. Hodgdon--
4 MS. HODGDON: I have several other minor 5 points--
6 JUDGE BECHHOEFER: Ms. Hodgdon, can we, 7 at least under the rules, consider as an option or 8 alternative a system which the staff has not 9 reviewed and has indicated it is not going to 10 review? Can we consider that a viable option?
11 MS. HODGDON: That is a hypothetical. I
() 12 don't understand what you mean.
13 JUDGE BECHHOEFER: It is hypothetical but 14 it happens to be the case here.
15 MS. HODGDON: I don't know what you are 16 talking about. It is just so indefinite. Can we 17 consider something--
18 JUDGE BECHHOEFER: Can we, as Licensing 19 Board--not consider. We can consider anything. But 20 can we authorize something that the staff has not 21 reviewed and has indicated that it will not review?
22 MS. HODGDON: I am afraid I don't 23 understand which one of the two systems you are 24 saying the staff didn't review.
O 25 JUDGE BECHHOEFER: The unenhanced system.
v 378 1 MS. HODGDON: Oh.
2 JUDGE BECHHOEFER: Could we approve that 3 absent staff review and with a staff statement that 4 it has discontinued and is not reviewing that
~5 system?
6 MS. HODGDON: Certainly I believe that 7 you can. I think that what Mr. Gad has said.is that~
8 'he was prepared to offer what might be called an 9 offense in depth. He is going to offer the simple 1 10 system and then the system with the proposal to 11 enhance it and those two things in the alternative.
() 12 The staff abandoned review of one when it took up 13 the other because the staff just doesn't have the 14 depth, the staff didn't feel that-they would 15 complete the one thing when they had taken up the 16 other. But that review had gone on for quite some 17 time and certainly the licensee is entitled to prove 18 to the Board something that it never finished l
19 proving to the staff, whether the staff signed off 20 in its entirety--
21 JUDGE BECHHOEFER: Would any 22 authorization in those circumstances necessarily 23 have to be subject to staff review and approval?
24- MS. HODGDON: I am trying to think of a O 25 case where something like that might have been done
1 379
([) "
)
i i
1 and I can't right off the top of my head. i J
2 JUDGE BECHHOEFER: Could we approve l
3 something, notwithstanding that the staff'has never =
1 4 reviewed or finished reviewing something--we' don't 5 care what the staff thinks, we think it is either. .j 6 okay--assuming it is okay, could we say that or j 7 would that be contrary to Commission policy whichs 8 would have the staff at least look at and review I 9 everything?
10 MS. HODGDON: The actual case is somewhat li easier than the hypothetical case of can'one--can a
() 12 board ordinarily do that, approve something that the 13 staff has not approved, because stated that way it 14 is just not too clear what you have in mind here.
l 15 But as far as this particular thing is 16 concerned, I don't believe that the staff has any: j 17 objection to the licensee's proving that its j l 18 unenhanced system meets the single failure 19 criterion, and that is largely because the staff's 1 20 position in this wasn't really on that-issue, or not 1
21 squarely on that issue ~in any case. It had to.do 22 with thermal hydraulics but it didn't have to deal 23 with this issue.
l 24 So, I think the answer to that is yes on O 25 something that is not directly a staff concern, or 1
380
)
1 where the problem is not a problem that the staff i 2 was looking at and where the staff's concern lay. I 1
3 Then I think the staff would not be averse to-that 4 position, having the Board approve it.
5 See, the ' staff's position is not really 6 on the single failure criteria. That is why I am.
7 having a lot of problems with this.
8 JUDGE BECHHOEFER: When we get to the l
9 various positions we will be asking a lot more on )
)
10 the merits. I was posing this as more a legal '
11 question than anything else. We will get to some of
() 12 the factual questions later,' assuming we don't grant 13 the motion now. If we don't grant the motion, we 14 will eventually get to the factual questions.
15 MR. GAD: Your Honor, I wonder if the 16 licensee might chime in on this question you have g 17 posed to the staff regarding the Board's authority?
18 JUDGE BECHHOEFER: Yes--well, as soon as 19 Ms. Hodgdon is done.
20 MR. GAD: I apologize, 21 MS. HODGDON: Is there a question to me 22 pending?
23 JUDGE BECEHOEFER: I wasn't sure if you 24 had finished your answer to the one I had asked.
O 25 You did answer but I wasn't--
i
.381 i
/'T U
1 MS. HODGDON: I was trying to think of a 2 situation--ordinarily, the staff would not agree to 3 having the Board assume some authority that the ;
)
4 staff might have exercised. But I am saying here, 5 where the staff's concern was a different concern j 6 than NECNP's contention, the staff would not be 7 averse to having the Board decide it based on the 8 evidence, the argument on the evidence presented by 9 the other party.
10 JUDGE BECHHOEFER: Mr. Gad?
11 MR. GAD: On the question that your Honor
(-)s
\_ 12 put, and if we save some curious wrinkles arising 13 out of ALAB 477 in the NEPA context- put them aside 14 because this is not an NEPA contention--the answer 15 to your Honor's question about the Board's authority 16 is yes, emphatically yes, unqualifiedly yes. If you 17 think about it, it is obvious.
18 The Board has the authority to rule that 19 the existing spent fuel pool cooling system is 20 adequate to do the required function even if the l 21 staff was coming in here and prepared to testify 1
22 that it di'dn't. Indeed, originally, that is what l 23 boards were set up to do. So the fact--
l 24 JUDGE BECHHOEFER: Can we do this before 7_s c
'-) 25 the staff has finished its review, however?
t 382
'O
\.)
i 1 MR. GAD: You can do it, your Honor, once l 2 the staff has published its SER and had an 3 opportunity to review. That is the key question, 4 opportunity to review. This whole rubric that has 5 been misused here by the bad citations by NECNP was i
6 a question of not forcing the staff to take a )
7 position before it had an opportunity to marshal its 8 resources. I 9 JUDGE BECHHOEFER: So the fact that they )
l 10 didn't come up with a formal position in their SCR,
]
1 11 you think is irrelevant as long as they had an l tm l
(_) 12 opportunity to do so.
13 MR. GAD: It is irrelevant on several l l
14 planes; in particular, in response to the question 15 that has brought me to my feet, it has nothing to do 16 with the Board's authority. l 17 There are lots of good reasons why the 18 staff--Judge Linenberger, remember how we flipped 19 the switches in the trains. If the staff is 20 satisfied that train three will do the job, they 21 really don't have to look at trains one and two.
22 But that has nothing to do with whether or not I can 23 prove trains one and two will do the job.
24 There is a lot of logic behind what the
,\
~# 25 staff has done here in terms of dedication of
383 l l
[
v 1
I l
1 administrative resources, perhaps, but it has j 2 nothing to do with the authority of this Board 3 MS. FERSTER: Your Honor, may I address 4 that point as well?
i 5 JUDGE BECHHOEFER: Ms. Hodgdon, are you '
6 through with your general presentation on the 7 motion?
8 MS. HODGDON: Yes. As I said, I haven't
{
i 9 read the motion, so I am somewhat disadvantaged. I 10 don't know what cases are being argued. If I have 11 an opportunity to see, I am sure I know them and can ,
rm i
(,) 12 address those, but I haven't had a chance to read 13 the motion. Insofar as this argument goes to the 14 motion, I have nothing to say further at this time.
15 JUDGE BECHHOEFER: Ms. Ferster? ]
l 16 MS. FERSTER: Thank you. j 17 I would like to address the last point 18 first and then I would like to rebut a few other j 19 things that the licensee mentioned in their 20 response.
21 First of all, the issue right now as we 22 have raised it is not whether--it is whether it is l
23 appropriate for the Licensing Board to dismiss 24 NECNP's contention without an adjudicatory hearing 25 when the staff has not reviewed the existing system.
y i 384 !
(~)
s-t 1 That is what our cases stand for.
2 Now, the licensee has pointed out that 1
3 one of our cases has modification, which he l l
4 incorrectly characterized as being on the same 5 point. It was not. The case that we cited--and the 1 1
6 cases that we cited' stand precisely for the 7 authority that it is very appropriate and licensing 1 1 8 boards frequently refrain from summarily dismissing ]
1 9 contentions prior to an adjudicatory hearing under l
10 summary proceedings just like this where the staff 11 has not completed its review of the system. That is
() 12 what we contend.
i 13 Now, the case that was modified, in fact, l 1 1 1 14 was modified on the grounds that the Commission 15 stated that the Licensing Board had no authority to 16 direct the staff to complete-its review. And that 17 may be correct. We are not saying--we are not l 18 asking the Licensing Board to direct the staff to 19 complete the review. We are simply saying that 20 NECNP's contention cannot be dismissed in a summary 21 fashion without an adjudicatory hearing on the basis 22 of the existing system alone unless and until the 23 NRC staff conducts and completes an evaluation of 24 the existing system alone. And that is all--that is 25 what our cases stand for, and they have not in any
385
~
( -)
m 1 way been reversed.
2 It is simply a question of i
3 appropriateness. When an intervenor raises a 4 significant safety issue that has been admitted as a 5 viable safety issue, a summary dismissal of that 1
6 contention is inappropriate. So, we have satisfied 7 our threshold burden, in other words, of proving 8 that they are a viable issue as to the adequacy of l
9 the existing enhanced spent fuel pool cooling system l
10 alone. Without a staff evaluation, there is just ;
11 simply not enough evidence before you right now to
( 12 say that there is no genuine dispute as to its l
13 adequacy.
14 Therefore, in our view, unless the staff 15 issues a SER on it, you have to take us into au 16 adjudicatory hearing on this issue. And that is, of i 17 course, if you do not strike evidence of the 18 existing system as we have requested.
19 Let me turn and respond to some of the 20 points raised by counsel for the licensee.
21 First of all, both the--
22 JUDGE BECHHOEFER: Of course, you know 23 there is another possibility which you didn't raise.
24 We could grant summary disposition in your favor at O 25 an oral argument as well. I assume you would not
~
l 386 ;
- 1. oppose us taking that approach.
2 MS, FERSTER: Certainly not.
3 .Now--we certainly would support that if 4 in fact you deny our~ motion to strike and do proceed l
5 to evaluate the adequacy.of the existing system 6 c),one.
7 Mr. Gad, on our motion to strike--and the l 8 NRC staff has stated that NECNP cannot gonuinely 9 claim they were surr-ised. NECNP has claimed to be 10 surprised as of February 6, 1989, less than one 11 month before the hearing.. That was the first time-- ,
( 12 JUDGE BECHHOEFER: I did mention, and I 13 gave you the wrong date for our telephone call but 14 it was in January, and I think the issue--I think 15 the Board raised the issue and aeked for the repott 16 of the applicant. So, at_1 cast as of that time 4 17 NECNP should have been aware at least- -in fact, I 18 think the applicant said it was going to do that and j 19 that it would confirm it in writing, and it took a j 20 little longer to confirm in writing than we expected i'
21 but it finally came. So as of January 12th, I think 22 that is the date--maybe January 10th--
23 MR. GAD: The 10th, your Honor.
24 MS. FERSTER: That is correct.
(:) 25 At the 10th, the possibility was raised l
v 387 O
1 for the first time that at this oral argument, the 2 applicant intended to litigate the adequacy. There 3 was great confusion and surprise that was greeted by 4 that statement, and the applicant was requested to ;
5 address their intentions in writing to clarify it l
6 for the parties. And, so, until we received that i 7 clarification we really did not genuinely understand l 8 or know what was going to be litigated. In fact, we 9 did not understand the staff's position at that 10 point because the formal--their responses to our 11 previous discovery requests, they had stated they I 12 did not believe the existing spent-fuel. pool cooling 13 system was adequate. Then discovery was dropped 14 because the parties were focusing on the enhanced 15 system--the enhancement to the system.
16 So, not until we asked that question !
17 specifically, went back to the existing system in 18 our latest discovery and received answers on January 19 31st, did we fully understand that in fact the 20 applicant intended to litigate the adequacy of the l
21 existing system alone at this hearing and that the i 22 staff now had shifted its position 180 degrees from l
l 23 its previous position and believed without the 1
24 benefit of an SER or full evaluation that the 25 existing system was adequate.
~.
388-O 1 That is the basis of our surprise. The l 2 surprise clearly does not extend from the beginning l
3 of February or really even from January to now. The 4 surprise that we claim so unfairly prejudices this 5 proceeding goes from July of 1987 to January 1989.
6 The'second issue that the licensee raised 7 is that our motion to strike was untimely and I 8 would like to address that.
i 9 First of all, NECNP could not have 10 submitted a motion to strike the applicant's March 11 1st testimony until after March 1st because there
() 12 was nothing to strike at that point. While we 13 certainly--
14 JUDGE BECHHOEFER: Could you have 15 submitted, say, either within a short time after the 16 February submission or even after the. January' l 17 telephone conference, could you have submitted a 18 motion to limit issues or something of that sort?
19 MS. FERSTER: I suppose we could have, 20 but it was our decision that in fact given the 21 entire uncertainty as to the applicant's litigation i
22 posture, we did not know what the applicant--what 23 sort of case the applicant would put forth until
}
24 March 1st, and we made a determination to wait until O 25 that time. We had no idea, for example, whether in I
l
.389 L a L l
- O 1- fact the applicant--the applicant stated its l
l 2 intention as we saw it, to litigate either/or, an 3 enhancement 1or existing system. Until March 1, 4 ~1989, we did not know which position the applicant' 5 was going to take. So, it was our decision that a-6 motion to strike'was the more appropriate way to 7 proceed in this instance as opposed to a limiting 8 motion.
9 And it was certainly our position that 10 the existing--that we could not have come forward 11 with evidence that limited--that limited the issues- !
() 12 before this proceeding when it was already our 13 viewpoint that the license application documents 14 already before the Board themselves limit the 15 proceedings.
16 That was our position, that it is not 17 necessary for us to request that the Board limit the 18 scope of these proceedings because it is limited by-19 virtue of the applicant's commitment to design and 20 install the enhanced subsystem, the enhanced system, 1
21 which in effect formally amended the license 22 applications that are before the Board and 23 determined scope of the proceedings in and of 24 themselves. I O 25 I would just like to briefly address the i
'390 IO 1 1 issue of NECNP's motives in filing a motion to t
L .
2 ' strike. The licensee has suggested that NECNP filed' 3 'this motion to strike because they.have'seen the:
4 licensee's testimony and they.in fact believe that 5 the licensee has established that the existing--
6 system is adequate alone. That is absolutely and 7 fundamentally incorrect. NECNP firmly believes that 8 the existing-spent fuel pool cooling system alone l l
l 9 will not satisfy the single failure criterion.
10 I think that the licensee's description ,
11 of how they plan to use the' enhanced system in fact 12 proves the point. They intend to use-the-system if' i
13 the existing system is inadequate. To me, that says-14 that the enhancement--the issue of whether'the 15 enhancement satisfies--it concedes the' issue of the 16 adequacy of the single failure criteria as far as- :
17 the_ existing system alone, that they do intend to 18 rely on enhancement and they are' stating they are- i 19 intending to rely on enhancement if the existing- ;
20 system inadequately cools.
i 21 Now, we are fully prepared to go ahead to l ;
22 the best of our ability--
23 JUDGE BECHHOEFER: Might the applicant 24 not be claiming that the enhanced system is not for i O 25 reasons of failure to meet the single failure c '
391 0
1 criterion, but perhaps for some other reasons not 2 stated? Might there be other reasons why they are 3 proposing the enhanced system, other than the single 4 failure criterion.
5 MS. FERSTER: My understanding is it goes 6 to the heart of the single failure criterion. If 7 you needed to rely on additional cooling system in 8 the event the existing cooling system doesn't 9 adequately cool it, the enhancement is necessary to 10 provide the required redundancy.
11 Did you want to add anything to that?
() 12 MR. TOUSLEY: Their own reason they give 13 for having proposed the enhancement was to address 14 the contention, which goes to the single failure 15 criterion. In fact, the characteristics of the 16 emergency standby system, the new part of it, as 17 described, are such that they would address all of 18 the problems that we point to as weaknesses in the l 19 existing system as far as the single failure i
l 20 criterion is concerned, so we think that is why they i
21 proposed it.
22 MS, FERSTER: The final issue, which I l 23 think that you addressed by your questions to the 24 applicant, was whether we incorrectly perceived the 25 enhancement as being a substitute for the existing
392
(
3
)
1 1- system.
2 Of course, it is clear from all our 3 papers that we do not perceive it as a substitute 4 for the existing system. We do realize that the 5 enhancement is an addition to the existing system.
6 What I think is very telling is the fact that we 7' believe--and we do believe that if the enhancement 8 were designed and installed as their conceptual 9 proposal specified, it may well satisfy the single 10 failure criterion. It was proposed for precisely 11 that reason. And.the applicant' offered the
() 12 enhancement, formally committed to design and 13 install the enhancement.
14 That offer and their suggestion of 15 mootness that followed that offer is in fact a-16 statement that the enhancement--that the issue of.
17 the adequacy of the existing spent fuel pool cooling 18 system alone is mooted by the' enhancement and that 19 it is the enhancement's cooling capability, 20 additional cooling capability and redundancy and 21 sizement qualifications, and all things the )
22 conceptual proposal stated, which, if they design it 23 as they say they are going to design it, would 24 potentially moot NECNP's contention.
l O 25 So, that is the issue here, whether we i
I . _ -- b
393 0
1 are litigating the enhancement and whether the 2 enhancement satisfies the single failure criterion.
3 JUDGE BECHHOEFER: Does anyone else have 4 anything further they want to add on this particular 5 motion? Otherwise, we will take a short break.
6 MR. YOUNG: Yes, your Honor. A brief 7 statement.
8 JUDGE BECHHOEFER: Okay.
9 MR. YOUNG: Mr. Gad has stated that the 10 Board can act where the staff has had an opportunity 11 to review the proposed license amendment. The State h 12 questions whether, given the way all the parties 13 treated the commitment letter of June 7, 1988, 14 notwithstanding whether that was the intent of 15 Vermont Yankee when they originally did that, but 16 their commitment was treated by all the parties, 17 including the NRC staff, as moving beyond the 18 existing system.
19 We question whether it was a real 20 opportunity to evaluate, for the staff to review the 21 existing system given the fact that they interpreted 22 that as moving beyond. Their own testimony 23 indicates that. If they were treating that 24 correctly at all, there was no reason for them to O 25 continue to review the existing system given the
394 O
1 existing system was no longer what they perceived 2 and everyone else perceived as the issue in this 3 case. Whether there was a meaningful opportunity 4 for the staff to complete its review of the adequacy 5 of the existing system.
6 So, even if the standard is an 7 opportunity to review, it is not clear to us that 8 this was a real opportunity given that June 7, 1988 9 commitment.
10 JUDGE BECHHOEFER: Does anyone else have 11 anything to add because we will take a break if you 12 don't, on this particular motion? Let's make it 15 13 minutes.
14 (Brief recess. )
15 JUDGE BECHHOEFER: Back on the record.
16 The Board has decided to deny NECNP's 17 motion to strike. We are not doing so on timeliness 18 grounds, but we are doing so on the basis that there 19 has been no formal application to this Board for the 20 change in cooling systems, the enhancement. In 21 addition, we do not think that there has been undue 22 surprise, at least, in that as of at least January 23 10th we raised the issue as to the scope of the 24 contention to be litigated. We confirmed that in an O 25 order of January 12th. And, finally, the
~
u 395
/
NJ 1 interveners have produced affidavits and 2 presentations on the issue and we think that is 3 properly before us.
4 Now, before we get into the next item, 5 which is the applicant's motion vis-a-vis Vermont, 6 the Board believes--we believe that we perceive a 7 possible basis for settlement among the parties and 8 we just want to throw out an option. We would like 1
9 you to consider it, perhaps over lunch. l l
10 We are going to hear the matter of the l 11 applicant's motion vis-a-vis Vermont, but f-s
(_) 12 particularly from what Mr. Tousley said at one l
l 13 point, we perceive that a basis of settlement could i
l 14 perhaps be the requirement that the enhanced system 15 be adopted, be installed, tested, et cetera, as the 16 staff has required in its SER, together with a j 17 commitment to send as-built--not as-built- perhaps 16 final design documents, not only to the staff but to 19 the Interveners and States and requiring a staff 20 review prior to that going into effect. In other 21 words, saying that there is still an unresolved, 22 unreviewed--sorry--safety question.
23 In effect, that is what the holding would
,, 24 be. But it would say that no going over 2,000 spent O 25 fuel elements in the pool until, as the staff has
1 396
( ]1 1 said, until the enhanced system is installed and 2 tested.
3 And the plans.for the installed system,. I 4 the final design plans--I am'no engineer so I am not 5 sure exactly what they.are called, but something.
6 more than conceptual drawings--be submitted.to the
! 7 staff for approval and to.the interveners for l
8 information and possible raising of objections prior' 9 to final approval. In other words, following the l
10 format of standard construction permit operating.
11 license proceeding, which this isn't, but following
() 12 that format and'giving everybody a chance to raise i 13 objections to the design document. This is without l
l- 14 saying how the legal rightsLof any party would be l
15 affected by 5059 or whether 5059 is even applicable, 16 which we-have not decided.
, 17 So, we would propose this as a possible 1
18 basis for settlement. If the parties could reach 19 such a settlement, it would, of course, end this 20 particular contention. It is a proposal the Board 21 would like the parties to consider, with such 22 permutations as they may come up with. 4 23 I might add, we are encouraged by our 24 regulations to seek bases for settlement. We think O 25 we may see one, but we are just proposing it. We
.397 O.
I would like some feedback while we are here, possibly 2 .after lunch or even after--maybe even tomorrow, 3 after we proceed further. We would like the parties 4 to be able to'get together and discuss this at some 5 point. I am not saying you have to do it at 6 lunchtime, but we are not saying you shouldn't 7 either.
8 If that could be done, obviously, we 9 could say we'd approve such a settlement, assuming 10 all the terms seemed satisfactory. -Something of-11 that sort would appear to be appealing to us if not 12 to anybody else. We just thought we would put that-13 out as something the parties may wish to consider.
1 14 Now we will get into the Vermont--the i 15 applicant's motion vis-a-vis Vermont's presentation 16 of testimony or rebuttal or response. I:would ask-17 the parties in this connection to tell me what I was 18 thinking about when I ordered responses in the first 19 place. The responses aren't in the rules. The 20 Board perceived that they might be a good idea but 21 we are not sure we had thought it out enough, so 22 tell us what we were thinking about or what we 23 should have been thinking about.
24 MR. GAD: Your Honor, with a view'to the O 25 suggestion of an interparty discussion over lunch, I
398 0
1 might suggest that the Board factor that in when.
2 setting the duration of the. lunch hour'so one 3 needn't choose between talking and getting fed, to 4 which effort I will contribute by giving a very' 5 truncated argument on the vermont Yankee motion to 6 strike.
7 There is actually very little I can add 8 to what is in writing. The Board's order of January 9 12th, in Section 2.1113-A, incorporated by reference 10 therein, require the parties to submit by the 28th 11 of February or 1st of March or whatever it was--and I
() 12 I quote, "All of the facts, data and arguments which 13 are known to the party at such time and on which the 14 party proposes to rely at the oral argument either 15 for~or against."
16 That day came, that day went, and Vermont 17 submitted nothing.
18 Now, it is quite correct that Subpart K 19 does not necessarily recognize rebuttal-eo nomine.
20 I believe that what the Board had in mind when it-21 elected to provide for rebuttal is the useful notion 22 of convergence. And what typically happens in these 23 proceedings is that you see apparent opposition on a 24 somewhat broad level. When examined, you can reduce 25 the points of contention to a couple of particular i
399 I
O l
1 points and then you zero in on those. And in the 2 process, you converge on the one or two real j 3 subsidiary issues that divide the parties, and now i
4 you can decide those and the case has become easy j 5 and the decisional process is necessarily focused on 6 where the contest is. )
l l 7 If that be so--and indeed, whether or not f l
8 you were quite so explicit, nonetheless about 150 l 9 years of history says that rebuttal should rebut, i
10 It must be responsive. The Vermont filing is not 11 responsive. It is not in--true rebuttal is
) 12 something you couldn't file until you saw the other 1
13 guy's position. Vermont couldn't claim that they l l 14 couldn't have filed what they did under the heading l 15 of rebuttal any earlier. They can't make that claim 16 because NECNP filed the same case and they did it on l 17 time. Moreover, it fails this notion of convergence l
18 because by cutting out a chance to respond, you see, 19 this technique largely--we may in fact have 20 anticipated some of it, and I suscsct maybe we did.
21 We will find out in a wee bit.
22 But apart from any accidents of 23 anticipation, allowing somebody to save bis whole I
_ 24 case for the last round in the process of escaping 25 any response undercuts this notion of convergence
v 7
1 400
-O i
1 because it would, except for an accident of history, 2 allow us to point out, well, but you see, this 3 analysis comes down to this point and that point is 4 critical to the analysis and, oh, by the way, that 5 point is in error if you look at 10.6.1 of the FSAR 6 and Appendix C. That is what rebuttal is all about.
7 So, the only other observation I will 8 make is that this motion's allowance cannot 9 prejudice the State of Vermont because their case is 10 essentially the same. Their technical thesis is 11 essentially the same as NECNP's and also because,
) 12 like NECNP, the rest of their presentation is an 13 attempt to inject issues into this case that the 14 Board has already ruled to be without the scope of 15 contention one.
l 16 So, chile I think the motion to strike' !
t 17 ought to be allowed whether or not it was 18 prejudicial to the State of Vermont, it happens, 19 happily, today, to be not prejudicial and that is 20 just another reason why it ought to be allowed.
21 JUDGE BECHHOEFER: I guess, Mr. Young, we 22 ought to hear from you and your response now.
23 MR. YOUNG: Thank you, your Honor.
, 24 JUDGE BECHHOEFER: And I would like you O 25 to address particularly this question of prejudice, a-____-_-___-___-. - - _ -
401 0
1 at least for purposes of the proceedings today, 2 especially the four items you have listed on pages 9 3 and 10 of your basic- your motion, I guess. Not the 4 affidavit, but 9 and 10 of the initial part of the 5 motion, where you have a list of four items.
6 Do you think that those could be, for our 7 consideration today--do you think those are 8 adequately covered by the affidavits submitted by 9 NECNP?
10 MR. YOUNG: The short annwer to that is 11 no, your Honor. As a matter of fact, had we 12 considered them adequately addressed by NECNP's 13 affidavits, the State of Vermont was not planning to 14 file any testimony whatsoever in this case. As you 15 know, the State has been participating as an 16 interested state rather than in support of any 17 contention of our own at this stage. We had not put 18 forth an affirmative case and had not intended to.
19 After seeing the individual testimony of NECNP and 20 Vermont Yankee, we determined that there were 21 worthwhile responses and issues that were not 1
22 addressed in response to what we saw. And it was 23 not something that we had identified previously, i 24 In that vein, I would say both the issues O 25 you point to on pages 9 and 10 we did not feel were
{
_ _ -- l
v I
k 402 i
O 1 adeque.' 31y covered and felt ' we could make a 2 worthwhile contribution. Moreover,_in the testimony 1
3 of Mr. Sherman specifically dealing with the single 1
4 failure criteria of the existing system and j 5 particularly the cross connections between the. j i
6 various heat exchanges and the fuel pumps, we. felt j 7 that additional information in response to both 8 NECNP and Vermont Yankee was appropriate to clarify l
9 what we considered the issues.to be separate from .
j 10 what the other parties had. It was an attempt, in 11 our mind, to in fact respond directly to what we
( 12 considered to be factors not addressed by any other 13 party. Prior to submission of this, we had not 14 intended to submit any testimony at all in this l 15 particular case. J 16 I will point out one thing--
l 17 JUDGE BECHHOEFER: It appears on,-I l 18 guess, four through seven of the affidavit, the j 19 existing system, is that correct?
20 MR. YOUNG: That is correct.
21 Particularly the footnotes specifically discussing 22 the current configuration of the existing system 23 deal with something that was specifically brought 24 out in responsive testimony by Mr. Gad and NECNP, i O 25 that NECNP did not fully understand. We think we
403 O
1 had something equally responsive to NECNP and 2 Vermont Yankee's affirmative case, that we had 3 something'to respond to that.
4 Now, we could have, as a matter of form, 5 cast it as simply quoting statements such as Mr. Gad 6 did in his--excuse me--Vermont Yankee did in their 7 responsive testimony and responding to those. We 8 chose to format it into a more coherent discussion f 9 since we had not previously put forward an 10 affirmative case.
11 JUDGE BECHHOEFER: Do you think there is
() 12 any problem of--I will not use the word surprise, 13 but inability of the applicant and/or the staff to l 14 respond? ;
1 15 MR. YOUNG: No, your Honor. Let me ,
I 16 address the two issues separately.
17 First, in terms of the existing system, l 18 the issues addressed here have been responded to in i l l l 19 various forms by Vermont Yankee or have been l 20 addressed. As a matter of fact, our testimony is 21 simply reiterating that we don't think they are 22 adequately addressed in their affirmative case. I l 23 would say for purposes of the question of whether l
24 this issue is appropriate for adjudicatory hearing, 25 we still don't think these particular issues are
I 1404 l
.3
- O t
1 -adequately addressed.
2 ~ JUDGE BECHHOEFER: Does that include'the j 3 applicant's response? -Have you seen their response?f 4 MR. YOUNG: We have seen their response, d 5' We still believe that these issues have.not been-6 adequately addressed even though they have.
7 simply--they have made testimony that addresses' .I 8 these'very issues, but'we believe there'still' 9 remains a legitimate-issue of fact and that:there l 10 was nothing that they would have done differently.
-11 that in fact prejudices them.
() 12 As Mr. Gad indicates, our case really is 13 derivative of NECNP's and it depends and relies to 14 some degree on that. In fact, in this case, we 15 believe 'a corrects some of the issues raised there.- l 16 MS. FERSTER: Your Honor- .j l 17 JUDGE BECHHOEFER: I.was_ going to ask 18 NECNP if you had any particular views.
19 MS. FERSTER: I would like to respond to 20 several points raised by Mr. Gad. ;
21 We would support the State of Vermont in ,
22 urging that its testimony not be struck. You had 23 asked a question about what the parties understood l 1
24 your order to--what you intended in your order. -i l 0 25 JUDGE BECHHOEFER: I didn't even ask what l -1
405 0
1 the parties understood. I asked what I intended. I 2 am not sure we thought about all aspects of it. We 3 wanted responses but we are not sure we thought of 4 all the permutations.
5 MS. FERSTER: It is my recollection from 6 the January 10th prehearing telephone conversation, 7 that you stated your intention to allow responses to 8 the initial submissions and that you clearly stated 9 that while this was not explicitly stated in the 10 rules, that you nonetheless intended to allow 11 responses and that you said responses would be very 12 liberally allowed. This was my recollection of the 13 context of the receipt of responsive testimony in 14 preparation for this hearing.
15 Now, the second point I would like to 16 raise is that it is commonplace in operating license 17 proceedings to allow interveners to only present 18 evidence by way of cross-examination, and 19 frequently, a number of licensing appeal board 20 decisions have upheld intervenor's right to not l
21 present direct testimony and only respond by way of 22 cross-examination. I would suggest that an 23 interested state would have even greater latitude to 24 participate in a proceeding in which it has a clear O 25 interest in that manner.
I
v --
406 O
1 JUDGE BECHHOEFER: Ms. Hodgdon, do you'-
2 have any views?
3 MS. HODGDON: Yes. I recall something 4 that.may be relevant, and that is that the Board 5 addressed this matter of responsive or rebuttal 6 testimony in the first prehearing conference two !
i 7 years ago, in April, and said that it would require 8 testimony and responsive testimony. And I think -
9 staff counsel pointed out at that time that Subpart 10 K didn't contemplate that because Subpart K was_in a 11 hurry. Somebody might recall _that.
() 12 In any event, I think the Board said that ,
I 13 the Board could probably adjust Subpart K a little 14 bit under the authority of 2.718. That is my 15 recollection. I am just trying to refresh the l 16 Board's memory about what it might have .had in mind i i
17 when it ordered two rounds >f filing.
18 Another thing it might have had in mind 19 is 2.749 on the summary disposition motion, where, 20 under A, as you know, somebody files--any party may 21 file and any other party may serve an answer 22 supporting or opposing. So, I suppose under that 23 rubric, Vermont was supporting NECNP but supporting 24 them by differing with their views about certain 25 factual issues. So, both of those things would, I 1-
407 O-1 suppose, argue for accepting the testimony to the 2- extent that it is relevant ! within the scope of the.
3 single failure criterion.
4 JUDGE BECHHOEFER: 749-A then provides a 5 response to that if it is based-on a different 6 ground.
7 JUDGE BECHHOEFER: It is basically on?
8 summary disposition motions. The analogy to a 9 summary disposition motion would say that a 10 responding party can either support something 11 previously filed'or--what is the other word? . Rebut l ( 12 or--I can't even find it.
I 13 JUDGE BECHHOEFER: It says, " Supporting 14 or opposing with or without affidavit."
15 MS. HODGDON: Thank you. So far as this 16 is analogous to a summary disposition proceeding,- j l
l 17 that might be helpful. Yhe Board might have had.
18 something like that in mind.
19 JUDGE BECHHOEFER: What I was asking then 20 is--it goes on to say, "The opposing party may, 21 within ten days after service, respond in writing to i 22 new facts and arguments presented in any statement' 23 filed in support of the motion."
24 MS. HODGDON: Obviously, it'is not a O' 25 perfect analogy. What we are doing here is not
m 1
'408 i O
]
1 perfectly analogous to a summary disposition' motion ]
1 2 or argument on a summary. disposition motion, 3 although those two. things, a summary disposition 4 motion and what we are doing.here, share certain 5 features in-common.
6 Also, under 2.715-C, the presiding 7 officer will afford representatives of an interested
-j 8 state, et cetera, a reasonable opportunity.to j 9 participate and introduce evidence, interrogate 10 witnesses, advise the Commission, and so forth. 'The 11 presiding officer may require such representative to 12 indicate with reasonable specificity in advance of 13 the hearing the subject matters on which he desires 14 to participate.
i 15 The Board did not indicate to. Vermont -
l 16 that they expected to be told in advance what their l i
l 17 participation would be, and so the question becomes j 18 what is reasonable with regard to accepting this 19 testimony at this time.
20 The staff would say that a reasonable 21 position might be that had times been assigned, that 1 22 vermont's testimony be received and its argument j
23 heard but that it cut into NECNP's time. However, 24 since there are no times assigned, that doesn't seem l
' O 25 to be a relevant solution to the problem. The staff l 1 l
l
_ _ _ _ _ _ __ _ _ _ _ _ _ _ -__ _ __-_J
409-0.
I would not like to seeLthis testimony rejected'in the i
2 its entirety because--particularly in view of:the ,
3 fact that we are herefin, Vermont, they are appearing.
4 as an interested state here, and the staff feels 5 that1they'should be heard even though;their 6- testimony is not exactly in accordance with what the' 7' Board seems to have had in mind.
8 JUDGE BECHHOEFER: Would you afford the 9 applicant and/or the staff additional time to.either 10 file supplemental affidavits responding to some of~
11- Mr. Sherman's statements?
) 12- 'MS. HODGDON: Mr.'Sherman's statements 13 are in fact the problem. Of course, the Board could 14 tailor that by saying, "Since you did not'come L 15 forward on the 1st of March with what you wanted to 16 put on, we will receive.only such part of:your 17 testimony as does not go beyond what NECNP put'in."
18 JUDGE BECHHOEFER: But-alternatively,-
19 would it be sufficient to say, "Well, this afternoon 20 or tomorrow you can present witnesses rebutting 21 that"? Is that too quick?
22 MS. HODGDON: To the extent that we might 23 have done it differently had we had the notice that 24 the. Board seems to have had in mind that we have by l
O 25 this having been filed on the 1st of March, when it 1
410 0
1 would seem to have been due.
2 JUDGE.BECHHOEFER: Mr. Gad, do you have 3 any responsive statement?
~
4 MR. GAD: One brief observation, your 5 Honor. It would be easy to devote to this motion l 6 more time than it is worth and I don't want to do 7 that. Let me make two observations.
8 I respectfully suggest that the Board's 9 order of January 12th and the telephonic colloquy of 10 January 10th established the obligations of those 11 who would participate under 2.715 and, therefore, no {
( 12 argument ought properly to be heard. I, frankly, 13 don't understand the State of Vermont to have made 14 one that it wasn't subject to the Board's order i 15 because it was a 2.715 and not a 2.714.
16 JUDGE BECHHOEFER: I don't believe that 17 argument is before us, that claim.
i 18 MR. GAD: Second, quick observation:
l l 19 With laudable candor, the State of Vermont has said 20 that in fact what it filed on March 20th was not so 21 much rebuttal as it was a tag team. What.they said 22 was that if NECNP had done it right they would have 23 stayed quiet, but since NECNP made some mistakes and 24 Vermont. perceived them, they were going to try and O 25 go in and patch it up.
j i
--_- -- - - - - - _ - - - _ _ _ - - _ - - - - - - - - _ - -- a
e 411- R O
1 And the simple issue before your Honor 2 is, is that within the scope of what you intended or 3 not. That is the issue I raised by the motion.
4 JUDGE BECHHOEFER:' Put it another way:
5 Do we not have some obligation if we think there 6 might be mistakes in what is before us and if those 7 mistakes may be corrected, to take. account of that 8 information?
9 MR. GAD: I think the answer to that is 10 yes, your Honor. If you_really didn't want to grant 11 the motion even if it should ought to be granted,
() 12 that is one way to eradicate the prejudice of 13 allowing this testimony. Yes. I don't contend to 14 the contrary.
15 JUDGE BECHHOEFER: On this motion, the 16 -Board has decided to deny this motion. We do 17 believe that some of the information which Mr.
18 Sherman has provided, some of it may be useful in 19 our resolution of issues. We will afford the 20 applicant an opportunity, whether here or, if 21 necessary, at a later date, to file responsive 22 affidavits or responsive testimony if needed, and 23 particularly if the settlement offers we have l 24 suggested or the settlement option we suggested
( 25 doesn't go through.
1 412 l l
( -
i 1 A couple of points we feel may have to be 2 addressed and you may have the witnesses here who b 3 could do it on the spot, but if not, we will afford :1 4 you whatever--you know, the opportunities.to file i l 5 supplemental affidavits to the extent necessary. {
6 So, we will deny the applicant's motion and we will l 7 permit Mr. Sherman to be heard--well, the State of 8 Vermont to be heard, through Mr. Sherman, if it ,
9 desires.
10 The Board thinks that if the parties want j
11 to negotiate over lunch to a possible settlement, we l
) 12 ought to break at this time rather than starting to l i !
l 13 get'into the merits, which would be the next' course l
14 of business. We would ask what time the parties 15 thought would be useful. Two hours?
16 MR. GAD: I nominate 1:30, your Honor.
17 That gives us an hour and 25 minutes.
18 JUDGE BECHHOEFER: Is that enough?
19 MR. "OUSLEY: I would suggest two.
20 JUDGE BECHHOEFER: I just took two as a 21 round number off the tcp of my head. It would give 22 up plenty of time to eat and talk.
23 MR. GAD: I am not prepared to argue it 24 for half an hour, your Honor.
O 25 JUDGE BECHHOEFER: Does the staff think
413
'O 1 that is enough time?
2 MS. HODGDON:- Who knows? Two is fine.
3 JUDGE BECHHOEFER: We will adjourn and.be 4 back at 2 o' clock.
5 (Whereupon, at this time a luncheon 6 recess was taken.)
7 8 ***
l 9
10 AFTERNOON SESSION 11 3:00 p.m.
]
')'
( 12 i 13 JUDGE BECHHOEFER: Back on the record.
14 During the lunch hour we.gave the parties )
15 an extended time to either negotiate or else have a 16 good lunch.. It has been a 'ttle longer than we j 17 suggested and we approved extensions. We-assume the 18 parties have had either a very, very good lunch or 19 also have something to report. I hope the latter is' l 20 the case. Maybe both, but--Mr. Gad? l 21 MR. GAD: With the understanding, your 22 Honor, that I am not authorized to report on lunch I 23 nonetheless rise to report. The parties have i 24 reached an agreement. We jointly suggest that we it-0 25 do this as follows: I am going to recite from my
414 O ,
1 somewhat illegible notes the terms of the agreement.
2 We are then going to beg the Board's indulgence to 3 go in' recess for about 30 to 45 minutes while we try 4 to reduce this to handwriting and then reconvene but 5 without everybody sitting in the room waiting five 6 minutes at a slug.
7 JUDGE B"CHHOEFER: That sounds 8 satisfactory.
9 MR. GAD: The inducement for your Honors 10 to go along is that mirabile dictu, we are going to 11 sive you not one but two contentions.
h 12 The terms of the agreement are as 13 follows:
14 Number one, contention one will be 15 withdrawn.
16 Number two, Vermont Yankee will reiterate 17 and make irrevocable its commitment to install the 18 enhancements, lower case "e," to the spent fuel pool 19 cooling system per the design parameters previously 20 published.
21 Number three, the staff will commit that j 22 in deciding the issue of a license amendment with 23 respect to these issues, which become uncontested 24 upon the withdrawal of the contention, the staff O 25 will rely only on the new system and not on the old.
415 0
1 Vermont Yankee will agree that a package 2 documentation, which, subject to more precise 3 definition, we currently call, " Released for 4 Construction" documents, will be made available to 5 the intervenor and the State of Vermont more or less 6 about the same time that it is made available to the 7 staff; that the intervenor and the State of Vermont 8 will have a period of not less than 30 days within 9 which to review this material and make any 3
10 suggestions to the staff they wish to make regarding 11 its adequacy; that the staff will, consistent with h 12 this being an uncontested issue at this point, 13 finally decide one way or another; and that this 14 decision will be memorialized by the publication of
.S a supplement to the satoty evaluation report as 16 opposed to by publication of some document of lesser !
17 dignity.
18 Finally, that contention number two will I 19 be withdrawn at the same time.
20 JUDGE BECHHOEFER: Contention two being 21 occupational exposure.
22 MR. GAD: That is the 33 man-rem, yes.
23 JUDGE LINENBERGER: Mr. Gad, excuse me 24 and forgive me for interrupting here. I guess I did O 25 not understand point number three.
v 416 1 MR. GAD: I am afraid I don't have them 2 numbered, your Honor.
3 JUDGE LINENBERGER: As I have numbered 4 them, one was withdrawal of the contention, two was 5 a recommitment on the part of Vermont Yankee. The l
6 next, which I numbered three, I just don't l
7 understand and I don't even want to try to 8 paraphrase it. J 9 MR. GAD: I am with you, your Honor. ' DI 10 Upon the withdrawal of the contention, 11 the decision to grant or not to grant the license
) 12 amendment on issues going to single failure now 13 becomes one for the staff to make. In a theoretical 14 world, the staff could did it either by deciding 15 that the existing system was okay or by insisting on 16 the new system.
17 Item three of this agreement is that the 18 staff will exercise that power only in reliance upon 19 the new system that we design per the design 20 parameters in the June ' 88 material.
21 JUDGE LINENBERGER: And by "new system" 22 here, do I infer correctly that you, sir, 23 applicants, are talking about an augmentation of the 24 existing system through the availability of O 25 something else?
~
I 417 O
l l
1 MR. GAD: We are talking about 2 specifically the two-train, fully redundant, 3 independently cross header, seismic Q, environmental 4 Q, 1-E emergency standby subsystem to the central 5 cooling system.
6 If your Honor will indulge us--and I say 7 this knowing full well the most difficult thing to 8 do in a courtroom is to sit for half an hour doing 9 nothing. Nonetheless, if the Board will indulge us 10 about 30 or 45 minutes, we would like to reduce this 11 to writing. I respectfully suggest that the
() 12 investment of that amount of time would be worth it.
13 JUDGE BECHHOEFER: This agreement sounds 14 satisfactory to us, so we will give you the half 15 hour.
16 Would you expect that we would approve on 17 the record and perhaps reconfirm it in writing, our 18 acceptance of that?
19 MR. GAD: The one thing I am nervous 20 about, your Honor, is that theoretically, on a 21 withdrawal of contentions, that is kind of the end 22 of it. You remember there was a case recently where 23 a Board went in and added that they thought a 24 particular settlement was a good thing and the O 25 appeal Board said you are not supposed to say that.
418 O
1 I am going to tell you I don't care one way or 2 another.
3 JUDGE BECHHOEFER: We, I guess, have, at 4 least in theory and probably actually, the power to 5 approve somebody withdrawing something.
i 6 MR. GAD: That is what they said to l
7 the--nobody is going to appeal if you do, but I 8 won't sit here silently because I know about this 9 decision.
10 JUDGE BECHHOEFER: By the way, it sounds 11 pretty much like what Judge Linenberger and I had in
() 12 mind when we made the suggestion. We talked this 13 out beforehand.
14 MR. GAD: Actually, we are going to take 15 all the credit here on counsel's side.
16 JUDGE BECHHOEFER: Feel free.
17 MR. GAD: The Board should understand 1
18 that the 30 minutes was by lawyer's measure.
19 JUDGE BECHHOEFER: We will break for 30 20 minutes. Try to--we will say around 4 o' clock, a 21 little more than 30 minutes.
22 (Brief recess.)
23 (Time noted: 4:10 p.m.)
24 JUDGE BECHHOEFER: Mr. Gad?
O 25 MR. GAD: If your Honor please, it has
419 O
1 been suggested somewhat irreverently that I am going 2 to have to read this into the record.
3 JUDGE BECHHOEFER: I was going to suggest 4 that either we bind it in the record or if you have 5 a written-out version you can give it to the 6 reporter to copy into the record.
S 7 MR. GAD: Either way. It is in 8 handwriting with a bunch of balloons and arrows. It 9 will only take a few minutes to read it.
4 10 JUDGE BECHHOEFER: That is fine. Go slow 11 so the reporter can get every word and--of course, lh 12 you will have a chance to review i~.he transcript as 13 well.
14 MR. GAD: We are going to type it up 15 tomorrow morning and get everybody to sign it anyhow 16 and probably correct the citations and dates in the 17 process. Indeed, this recitation should be with the 18 understanding we are going to fix, to the extent 19 necessary, any citations.
20 Pursuant to 10 CFR 2.753, parties to this 21 proceeding hereby stipulate and agree as follows:
22 One: NECNP--and we are going to fix up 23 the parties' full name--NECNP, as the sole proponent 24 of contention one hereby withdraws the contention.
O 25 Two: Vermont Yankee hereby agrees that
3 420 0
1 it will not withdraw its commitment to design, 2 install and test the Emergency Standby Subsystem 3 enhancement to its spent fuel pool cooling system in 4 accordance with the design criteria set forth in its 5 letters to the NRC staff dated March 2, 1988 and 6 June 7, 1988 and numbered FVY 8817 and FVY 8847, 7 maybe.
. 8 Three: the staff hereby agrees that in
)
{ 9 exercising its authority to grant or deny the 10 requested operating license amendment, insofar as it 11 concerns spent fuel pool cooling, the staff will do
(~
(_j) 12 so on the basis of the spent fuel pool cooling 13 system as enhanced by the Emergency Standby ,
{
14 Subsystem described in paragraph two above and not j l
l 15 on the basis of the existing spent fuel pool cooling 16 system by itself. In particular, the NRC staff will 17 not approve any operating license amendment granted i 18 on the bLsis of wet pool storage until it has 19 approved, pursuant to paragraph six below, the 20 acceptability of spent fuel pool cooling system.
21 Four: Vermont Yankee agrees to provide 22 to NECNP, the State of Vermont and Massachusetts the 23 design documentation, when prepared, consisting of 24 Approved Engineering Design Package--that is four
()
' 25 initial caps--released it for construction,
421 I
.I 1
1
}
.q 1 including appropriate piping and instrumentation i
2 diagrams, one-line electrical diagrams showing power 3 sources for pumps and valves and instrumentation, 4 piping drawings showing three-dimension depictions 5 of.the arrangement of the piping and components'in 6 the system and design criteria for all systems,-for 7- all. structures, systems and components for operation.
8 of the system hereinafter defined as design package.
9 Approximately at the same time as the-design' package l 10 is provided by Vermont Yankee to the NRC staff.
11 Five: The staff agrees this it will
() 12 provide to NECNP, the State of Vermont and the 1
13 Commonwealth of Massachusetts not less than 30 days 14 within which to review and comment upon any aspect l
15 of the design package.
16 Six: The staff will be the final _ arbiter {
l 17 of the acceptability of the spent fuel pool cooling ;
18 system and it will publish its ultimate 19 determination in a supplement to the Safety 20 Evaluation Report.
21 Seven: Contention two is hereby _ l l
22 withdrawn. !
i 23 Eight: If any one provision of this 1 24 agreement fails, this entire agreement shall fail.
l
(:) 25 Then signatures.
______-_____._____.____.m.___. _ _ . _ _ _ _ . _ _ . _ - _
__ q 422 V
1 I am obliged to make one footnote, your 2 Honor, and that is this:- That the Commonwealth of 3 Massachusetts is not here today and need not be here 4 today for anything that we do today until we get to 5 contention number two. We are all proceeding on the 6 basis of a shared understanding that with respect to 7 contention two, the Commonwealth has been putting 8 the bulk of its reliance upon NECNP and hence will 9 follow suit. In all events, our undertaking is to 10 get this thing typed, signed, and then filed in due l I
11 course.
) 12 JUDGE BECHHOEFER: The Board is satisfied 13 and willing to accept this particular resolution of 14 both contentions, safety contention one and 15 environmental contention two, the latter subject to 16 concurrence by the Commonwealth of Massachusetts. ;
17 The Board here is indicating that we do l 18 approve of it. We believe that we should, after 19 seeing the final typewritten version, issue an order l
20 indicating that that is the case because the 21 resolution of any safety-related contention is, l
22 among other things, subject to sua sponte review by 23 the Appeal Board and I think the Appeal Board is 24 entitled to know that we agree with this particular O 25 resolution.
w- -
423 O.
3 1 So, I think we will issue an order 2 . shortly after we receive the written order that you
- l. 3 have read indicating agreement with it and that the-4 contentions one and two are withdrawn. )
i 5 The Board, while the parties were 6 meeting, suggested that the parties try to come up 7 with a schedule for--not a' definite schedule but at- <
8 least a general time frame for resolutices of 4 l
9 contention three, which is the one on alternatives.
10 Contention three would, in part, depend 11 on the Appeal Board's resolution of the severe
() 12 accident contention,-which I guess is environmental 13 contention one. At the moment it is called that.
14 But we believe, and we said so when we dealt with 15 environmental contention one, that contention three 16 could in large part be resolved not using severe 17 accident considerations, but if they became 18 relevant, that would be just another element in the 19 comparison of alternatives.
20 We wondered, therefore, whether at least 21 this first portion of contention three--contention 22 three as it stands without the severe accident 23 basis, whether the parties have a general time frame i 24 within which they believe we could come to an oral 1
25 argument on that contention. I believe that NECNP 1
l
v.
424 O
l 1 and Massachusetts, collectively, have an opportunity 2 at least-to ask a second round of questions,'a ;
3 second or third--a second round of questions to the 4 staff.
5 MR. GAD:- Your Honor, in defense of the 6 collegium here, frankly, we didn't have the time or-energy to spend much time on this.
~
l 7 8 I believe the present status is as 9 follows: At least in form, I believe, all 10 interrogatories permissible under the Board's prior 11 orders have been answered. I don't think I am
() 12 revealing any great secrets if I tell you that=there 13 may be some dispute between the staff and the 14 proponents of the interrogatories as to whether or 15 not they have been answered adequately and your 16 Honor, I understand, will get a motion, which under 17 the rules has to come in in the next couple of days 18 anyhow.
19 I would like to suggest that the Board 20 establish right now a schedule--if you like, in the 21 same three steps we had for-this contention, 22 targeting the initial testimony for something on the-23 order of one month from today.
24 JUDGE BECHHOEFER: Well, if another round O
\# 25 of discovery may be out, and that would be a little
425 O
1 premature, but--
2 ' MR . GAD: Ex hypothesi, if a motion were 3 compelled, filed, argued and allowed, you would get:
4 the answers called for by the order allowing the 5 motion to compel. There isn't any--all of thel 6 cycles originally provided.for, to my recollection' l 7 at this late hour of the day, have already been spun-8 through.
9 JUDGE BECHHOEFER: It was my impression 10 that only one round had been answered by the staff.
11 If I am wrong--
l () 12 MS. HODGDON: That is not correct. The 13 staff answered two rounds of interrogatories on 14 environmental contention three.
15 MS. FERSTER: Your Honor, Mr. Gad is 16 correct in anticipating NECNP's response to the 17 staff's responses to our second round. They did not 18 fully respond to the questions that we posed to them 19 and we will be filing a motion to compel that l 20 response. So, it is right now indeterminate when l
21 ultimately that motion to compel that we will be 22 filing will be resolved. Assuming that it is l 23 granted, when the staff will fully respond to 24 NECNP's interrogatories.
O 25 JUDGE BECHHOEFER: The way I see it, it
426-10 1 could be as much as three months from today if;you <
~2 figure a couple'of months--assuming that_we allowed, 3~ we granted'a motion to compel and the staff.had to 4 answer' interrogatories or. supplement their answer, 5 it could be as much as a couple of months after' 6 which the one month would be' reasonable to provide
~
7 testimony. But I. guess it is very hard to predict 8 until we'see the motion.
9 MR. GAD: .A suggestion,:your. Honor.
10 JUDGE BECHHOEFER: ItLis also hard.to 11 predict how difficult the questions;will be to
() 12 answer.
13 MR. GAD: Let me'try'this one on for-14 size. How about if we say that the first step, the l-l 15 direct case, will be due on the Monday.after the 16 elapse of 30 days ~from whichever occurs of-the 17 following three events: The first one is that the 18 ten days for a motion to compel'comes and'goes.
19' without a motion. The second one would be the 20 service of this Board's order denying the motion it 21 to compel. The third one would be the service date 22 of the staff's further answers on the assumption 23 that the order were allowed.
24 It would seem to me that pretty much-25 covers the waterfront.
427 O
1 JUDGE BECHHOEFER: We would have no 2 problem with that. I note for the record that the 3 staff usually likes to f..le things on Tuesday, 4 but--this they have said so in the past.
5 MR. GAD: I had to start someplace.
6 MS. HODGDON: We would amend that to 7 Tuesday. The Tuesday following 30 days.
8 MR. GAD: Proponent of the motion--
9 JUDGE BECHHOEFER: I guess it was a 10 different case the staff told me that, through the 11 same attorney but--
h 12 MS. HODGDON: Enforcement proceeding.
13 Same room.
14 JUDGE BECHHOEFER: Ms. Ferster, Mr.
15 Tousley, does that sound reasonable?
16 MS. FERSTER: That is reasonable.
17 JUDGE BECHHOEFER: We will have to tie 18 any of these dates into eventual Board schedules.
19 We would, again, propose to utilize the response 20 system that we have used before. I think at this 21 time we would urge all the parties to file initial 22 testimony tonight, date set for initial testimony.
23 We made it as clear as we should before and we ;
24 accepted Vermont's testimony because we thought it O 25 had some technical matters in it that warranted
i 428 7s
%s 1 resolution, but we would hope that the parties could j 2 come up and all file--parties, interested states as 3 the case may be--would file testimony on whatever i 4 date we finally come up with. That will be 5 approximately two weeks before responses and maybe 6 three weeks before an oral argument, but we will 7 have to figure direct dates more closely than that, j 8 closer to the time when we actually have to set them i
) 9 because a number of us have various obligations in
, 10 other cases and possibly even some vacation time and l
11 that kind of thing.
C) 5 12 MR. TOUSLEY: Mr. Chairman, I would just 13 suggest that the date for responsive pleadings be 14 set a little bit further ahead of the oral argument j 15 date time. We didn't get the NRC staff's response 16 to our stuff until we got here this morning 17 because--
18 JUDGE BECHHOEFER: And we didn't get a 19 lot of it until yesterday. I think we will set a 20 couple of extra days on that. I think we pushed the 21 schedule a little too much on this one. Mechanical 22 devices don't always produce--
l 23 MS. HODGDON: Because it was Monday.
l i 24 JUDGE LINENBERGER: Transmittal devices I
/'T I
~/ 25 frequently go awry also.
1 l
l l
429 O
1 1. 7 HODGDON: On Monday.
h 2 JUDGE BECHHOEFER: The staff has adopted 3 those terrible new hours which means you close up 4 early. Everything closes up a lot earlier than it 5 should. The Board will go on record saying we don't 6 recognize 7:15 as a proper starting time and the 7 Appeal Board has now said that's okay, too, but this 8 Board will be much more lenient about accepting 9 filings until 5:30 or so.
10 Is there anything else the parties think 11 we ought to deal with while we are still here? We lh 12 will issue an order following our 1_ eipt of written 13 statements and hopefully the transcript, so we can 14 get all these dates straight and the general time 15 frames straight. It will all come out in order in 16 the not too distant future.
17 MR. GAD: Nothing further from the 18 licensee, your Honor.
19 JUDGE BECHHOEFER: Any other parties?
20 MS. FERSTER: No, your Honor. j 21 MR. YOUNG: No , your Honor.
22 JUDGE BECHHOEFER: We appreciate your all 23 having appeared. This is the first oral argument 24 the Commission has ever held. I personally would O 25 view it as quite successful, but I am not sure this
430 0
1 was the kind of thing anticipated when oral 2 arguments got put into the rules. Be that as it 3 may, I think the bottom line is a good result.
4 We are adjourned.
5 (Time noted: 4:35 p.m.)
6 7 * *
- 8 9
3 10 11 h 12 13 14 15 16 17 18 19 20 21 1
22 23 24 25
MAR-23-89 THU 18: 06 T $e N K O O ~ S R E P D Fi T I N G CO 7NC P.O1 r, CERTIFICATE I, Debra Stevens, a Certified Shorthand Reporter, do
\
hdereby certify that I reported the hearing in the matter of Vermont Yankee Nuclear Power Corporation, Docket No. 50-271-OLA, on Mar. 22, 1989, at the U.S. Courthouse, 20.4 Main Street, Brattleboro, Vermo'nt, and that this is an accurate transcription of what transpired at that time and place.
i Debra Stevens, CSR &
l n
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