ML12342A154
| ML12342A154 | |
| Person / Time | |
|---|---|
| Site: | San Onofre  |
| Issue date: | 12/03/2012 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| RAS 23857, 50-361-CAL, 50-362-CAL, ASLBP 13-924-01-CAL-BD01 | |
| Download: ML12342A154 (42) | |
Text
Official Transcript of NUCLEAR REGULATORY Southern California Edison Company San Onofre Station Units 2 and 3 Docket 50-361-CAL and 50-362-CAL (telephone conference) Monday, December 3, 2012 Work Order No.:
Pages 1-39 NEAL R. GROSS AND CO., Court Reporters and 1323 Rhode Island Avenue, Washington, D.C. (202)
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5 10 15 20 25 1 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 UNITED STATES OF NUCLEAR REGULATORY + + + + ATOMIC SAFETY AND LICENSING BOARD + + + +
x In the Matter of: Docket No. Southern California Edison 50 361-CAL Co. San Onofre Nuclear Generating Station, Units 2 and 3 50-362-CAL (American Centrifuge Plant -----------------x Monday, December 3, 2012 The teleconference came to order at 2:00 p.m. Eastern Standard Time. E. Roy Hawkens, Chairman, Presiding.
BEFORE: E. ROY HAWKENS, Chair GARY ARNOLD, Administrative Judge ANTHONY BARATTA, Administrative Judge NEAL R. GROSS COURT REPORTERS AND 1323 RHODE ISLAND AVE., (202) 234-4433 WASHINGTON, D.C. 20005-3701 5 10 15 20 25 2 APPEARANCES:
On Behalf of the Petitioners, Friends of the Earth: RICHARD AYRES, KRISTIN GLADD, JESSICA OLSON, AYRES LAW 1707 L Street, NW, Suite washington, DC (202)
On Behalf of the Southern California Edison Co. STEVE FRANTZ, MORGAN, LEWIS & 1111 Pennsylvania Ave, washington, DC 20004 On Behalf of the Nuclear Regulatory Commission:
DAVID ROTH, ESQ. CATHY KANATAS, ESQ. Office of the General Counsel Mail Stop o 15 D21 U.S. Nuclear Regulatory Washington, D.C.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com 5 10 15 20 25 3 On Behalf of the Amicus Curiae, the Natural Resources Defense Counsel: GEOFFREY FETTUS, ESQ. 15 th 1152 Streetl NW Suite Washington l DC (202)
NEAL R. GROSS COURT REPORTERS AND 1323 RHODE ISLAND AVE., (202) 234-4433 WASHINGTON, D.C. 20005-3701 5 10 15 20 25 4 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 PRO C E E DIN G S 2:02 p.m. JUDGE HAWKENS: On the record. Good afternoon.
This is again Judge Hawkens. This is a telephone conference call that has been convened for the Southern California Edison Company case referred by the Commission in CLI 12-20. I'm joined by my fellow judges, Dr. Anthony Baratta and Dr. Gary Arnold. And we're also joined here by our law clerk, Ms. Onika Williams and an administrative assistant, Ms. Karen Valloch. Would the counsel for the parties please introduce themselves for the record starting with Petitioner, Friends of the Earth. MR. AYRES: Yes, Judge. My name is Richard Ayres. I'm counsel for the Petitioners, Friends of the Earth. And my co-counsel Jessica Olson and Kristin Gladd are here with me. JUDGE HAWKENS: Thank you. Respondent Southern California Edison. MR. FRANTZ: This is Steve Frantz from the law firm of Morgan Lewis & Bockius. We represent Southern California Edison. JUDGE HAWKENS: Thank you, Mr. Franz. NRC staff. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., NW. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com 5 10 15 20 25 5 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 MR. ROTH: David Roth, R-O-T-H, for NRC staff. Also speaking today will be Cathy Kanatas. There is an addition, a number of attorneys and staff who may be in and out of the conference call. But none will be speaking.
JUDGE HAWKENS: Thank you. And finally supporting the Petitioner.
MR. FETTUS: Thank you, Your Honor. This is Jeffrey Fettus, G-E 0 F-F-R-E Y, Fettus, F as in Frank-E-T-T-U-S for NRDC, the Natural Resource Defense Council. JUDGE HAWKENS: Thank you. And for the benef it of the court reporter, he would be grateful as would I if you would identify yourself before speaking.
At the outset, Judge Gary Arnold would like to read a statement concerning a two-year period of employment he had with Southern California Edison some 30 years ago. I will now turn it over to Dr. Arnold. JUDGE ARNOLD: This is Judge Arnold. As stated in my biography on the NRC's public website from 1981 to 1983 I worked for Southern California Edison as a start-up engineer.
I participated in fuel load initial criticality, physics testing and power NEAL R. GROSS COURT REPORTERS AND 1323 RHODE ISLAND AVE., (202) 234-4433 WASHINGTON, D.C. 20005-3701 5 10 15 20 25 6 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 ascension testing at San Onofre Nuclear Generating Station Unit 2. In 1983 I left SCE to pursue educational opportunities.
Since then, I have not returned to the San Onofre Nuclear Generating Station. I have not maintained any contacts with Southern California Edison either financially, professionally or otherwise.
And I have not maintained contacts with any of my former Edison colleagues.
I wanted to make sure the parties were aware of my prior contact with Southern California Edison. And I wanted to assure them that this short period of contact that ended nearly 30 years ago will not affect my ability to act impartially in this proceeding.
However, if any party believes that the foregoing facts warrant my recusal they shall file a motion to that effect within seven days. That is no later than Monday, December 10th. JUDGE HAWKENS: Thank you, Dr. Arnold. Does anybody have any questions on that matter? Petitioner?
MR. AYRES: JUDGE HAWKENS:
MR. FRANTZ: NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com 5 10 15 20 25 7 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 JUDGE HAWKENS: NRC Staff? MR. ROTH: David Roth for the Staff. No, Your Honor. JUDGE HAWKENS: All right. Thank you very much. The Commission in CLI 12-20 in addition to directing the staff to determine whether the replacements of the steam generators for Units 2 and 3 required a license amendment.
Also directed the Licensing Board to consider two issues: (I) whether the NRCls confirmatory action letter constitutes a de facto license amendment that would be subject to a hearing opportunitYi and, if so, the (2) second issue would be whether the petition submitted by Friends of the Earth meets the standing and contention admissibility requirements of Section 2.309. The Board has reviewed the record and determined that additional briefing on these issues would be beneficial especially with regard to Issue No.1. Our preliminary view is that resolving the first issue will involve addressing whether the proposed actions in the confirmatory action letter satisfy the criteria in Section 50.59 requiring a license amendment.
In our view, this presents a NEAL R. GROSS COURT REPORTERS AND 1323 RHODE ISLAND AVE., (202) 234-4433 WASHINGTON, D.C. 20005-3701 5 10 15 20 25 8 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 combined issue of law and fact. And to the extent that the parties' briefs they're going to submit pursuant to a briefing schedule we will announce here address factual matters. They should provide an affidavit, if appropriate, in support of any factual assertions.
Later this week, the Board will issue an order that will include specific questions we'd like the parties to address. And it will also provide a briefing schedule that we will discuss later in this conference call. We anticipate some of our questions will require the parties to address issues of safety significance as well as the analysis in support of the CAL. Examples of the -Excuse me. In addressing those factual issues, we anticipate that the Board and the parties will require access to proprietary versions of documents already in the record or cited in the record. Examples of those documents include the steam generator tube wear analysis for Units 2 and 3, the SONGS Unit 2 return-to-service report, the SONGS steam generator operational assessment for tube-to tube wear and the tube to-TSP wear depth diagram for Units 2 and 3. And these documents all will be NEAL R. GROSS COURT REPORTERS AND 1323 RHODE ISLAND AVE., (202) 234-4433 WASHINGTON, D.C. 20005-3701 5 10 15 20 25 9 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 identified in the order we will be issuing this week. But the fact that they include proprietary information will require the execution of non disclosure agreement.
So the first order of business will be the preparation and execution of such a non disclosure agreement.
And our instinct is that Respondent may be the best entity to be the crew chief for the preparation, coordination and execution of such a document.
Mr. Frantz, do you agree? MR. FRANTZ: Before we even get there, Judge Hawkens, let me express an extreme reservation on this approach.
I don't believe that these documents are necessary to resolve the issue raised by the Commission in CLI 12 20. The Commission has not asked the Board and has not directed the Board to consider the safety of restart. That's well beyond the scope of the order. Instead, I thought the order was very clear that it only wanted the Board to consider whether the CAL letter is de facto amendment.
These other documents just are not related to that question.
And therefore I guess we would object to such a broad scope inquiry by the Board. JUDGE BARATTA: Mr. Frantz, this is Judge Baratta here. Our understanding is that the NEAL R. GROSS COURT REPORTERS AND 1323 RHODE ISLAND AVE., (202) 234-4433 WASHINGTON, D.C. 20005-3701 5 10 15 20 25 10 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 Commission expects us to determine whether or not a license amendment is required.
In order to do that t we turn to 50.59 which then looks at the impact on safety of any proposed changes. These document do in fact discuss that impact. MR. FRANTZ: I understand t Judge Baratta. But I dontt believe the Commission asked the Board to consider whether the restart actions constitute any need for license amendment under 50.59. It is not at all unusual for plants to have adverse conditions.
And the fact typically there are hundreds t if not thousands t of condition reports issued each year by a licensee.
And obviously there is just no need for a license amendment on these board types of issues. It's routine for licensees to take corrective action. The sole issue I think according to the specific orders by the Commission are whether the CAL consti tutes a license amendment, not whether all these other activities require a license amendment under 50.59. If the Commission had wanted the Board to make that kind of inquiry, it could have said so in its order. And it did not. MR. AYRES: Your Honor, this is Mr. Ayres. We agree in general with the post suggested by the NEAL R. GROSS COURT REPORTERS AND 1323 RHODE ISLAND AVE., (202) 234-4433 WASHINGTON, D.C. 20005-3701 5 10 15 20 25 11 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 Board. In our view, the question here is as the Commission has posed is to look at whether the changes made by Southern California Edison in the proposed response to the CAL constitute a proceeding that should be a licensing amendment proceeding.
When we look at Edison's response, what we see is a number of documents that are heavily redacted and some documents that are cited but that are not available publicly.
For example, the response relies heavily on benchmarking against other reactors, but does not identify the other reactors.
In our view, it would be impossible for us to prepare a brief based on the questions presented by the Commission without access to these withheld and redacted documents.
Indeed, we have been preparing a list of documents that we would like to submit to the Board which we think should be made available to the Peti tioners so that we can address the question presented by the Commission.
JUDGE HAWKENS: Could I please heard from either Mr. Roth or Ms. Kanatas on this issue? MR. ROTH: Certainly, Your Honor. This is David Roth for the Staff. I note the word of the Commission's order is specifically directing the Board to consider whether the confirmatory action letter NEAL R. GROSS COURT REPORTERS AND 1323 RHODE ISLAND AVE., (202) 234-4433 WASHINGTON, D.C. 20005-3701 5 10 15 20 25 12 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 constitutes a de facto license amendment.
By contrast, Commission referred the 50.59 issue and the alleged violation of 50.59, a steam generator replacement, to the Staff. And thus when presented with this issue to the Staff it appears that the issue was very limited. It's a very narrow issue of whether the CAL issued NCE constitutes a de facto license amendment.
Absent seeing the order, I can't speak as to what use the documents would or would not be that Your Honors are referring to. But, in any event, the Commission order is a very narrow order and it shouldn't be extended to a broad inquiry into other topics. JUDGE BARATTA: You're quite correct that we're not involved in the 2.206 issue that the Staff is. However, these documents that we're asking for are referenced in the CAL as attachments to it. And therefore we believe are part of the appropriate items to be looked at and determine whether or not as the Commission asks us to do to CAL issued NCE constitutes a de facto license amendment.
That should be subject to the hearing opportunity under Section 189(a). MR. AYRES: Your Honors, we certainly understand that the station under separate 2.206 NEAL R. GROSS COURT REPORTERS AND 1323 RHODE ISLAND AVE., (202) 234-4433 WASHINGTON, D.C. 20005-3701 5 10 15 20 25 13 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 proceeding that the Commission has put into play and likewise we don't challenge at all the Commission's ability to use CAL. We think the question that the Board has put here or that the Commission has put here is whether in this instance the proposed response from Edison and its support put this particular proceeding into a category requiring a license amendment rather than simply a CAL in response.
JUDGE HAWKENS: And that was Mr. Frantz speaking, correct? This is Judge Hawkens. MR. AYRES: I'm sorry. JUDGE HAWKENS : Please remember to introduce/identify yourself before speaking.
MR. AYRES: I beg your pardon, Judge Hawkens. It was Richard Ayres speaking.
JUDGE HAWKENS: Oh l 11m sorry. MR. FRANTZ: This is Steve Frantz speaking in this case. The CAL itself does not reference any particular documents.
In fact, the documents that the Board referred to post date the CAL itself. And therefore again we don't believe that it's within the scope of the CAL in terms of what has to be decided by this Board. JUDGE HAWKENS : Does anybody wish to address the issue before the Licensing Board goes NEAL R. GROSS COURT REPORTERS AND 1323 RHODE ISLAND AVE., (202) 234-4433 WASHINGTON, D.C. 20005-3701.
5 10 15 20 25 14 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 offline for a moment? Mr. Ayres I anything else to say on this? MR. AYRES: Honor. JUDGE HAWKENS: Mr. Frantz? JUDGE HAWKENS: Ms. Kanatas or Mr. Roth? MR. ROTH: David Roth for the Staff. NO I Your Honors. JUDGE HAWKENS: Thank you. The Licensing Board will go offline for a moment and l Mr. Hendrixson weill let you know when we return. Thank I you. Off the record. (Whereupon a short recess was taken.) JUDGE HAWKENS: On the record. Mr. Hendrixson this is Judge Hawkens. We/re back online I now. We understand Mr. Frantz and Mr. Roth/s statements that the Board is bound in its scope of its inquiry by the Commission/s directive.
But in order to determine whether the confirmatory action letter constitutes a de facto license amendment.
We need to determine and take into account the subsequent actions which were authorized by that letter. And that means taking a look at some of the documents including the NEAL R. GROSS COURT REPORTERS AND 1323 RHODE ISLAND AVE., (202) 234-4433 WASHINGTON, D.C. 20005-3701 5 10 15 20 25 15 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 proprietary information that were in those documents.
In our subsequent order l it will direct the preparation of a non disclosure agreement.
Mr. Frantz l assuming that a non disclosure agreement will be required is this something that you l wish to as crew chief for? MR. FRANTZ: I willI Judge Hawkens. May I request that the Board at least certify this question to the Commission?
I think this is a tremendous expansion of the scope of what the Commission intended.
JUDGE HAWKENS: We respectfully disagree with you l Mr. Frantz. We don/t object if you seek to have this issue appealed.
But we view this as squarely within the scope of the issue we/re directed to address and resolve. Having that we are going to ask if l such a non disclosure agreement could be prepared by week/s end. What/s your view at this point on that l Mr. Frantz? And you may want to talk to your colleagues to discuss how you want to proceed. MR. FRANTZ: The non disclosure agreement I there are many forms out there that have been used in the past under other proceedings.
So that should be a relatively simple matter to prepare. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.w. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com 5 10 15 20 25 16 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 MR. AYRES: Your Honor. Because of other commitments, it would be difficult for me to JUDGE HAWKENS: Who is speaking please? MR. AYRES: I am sorry. It's Richard Ayres. Because of other commitments this week, it would be difficult for me to complete by the end of the week. But certainly by early next week we should be able to. JUDGE HAWKENS: In other words, coordinate with Mr. Frantz and make sure you're on board with the contents of the non disclosure agreement.
MR. AYRES: Yes. I think JUDGE HAWKENS: You shouldn't need more than a week. MR. AYRES: I think so, Your Honor. JUDGE HAWKENS: What date would you be looking at? MR. AYRES: Perhaps next Wednesday.
MR. FRANTZ: This is Steve Frantz, Your Honor. Again, I don' t think that's reasonable to string this out for a week and a half. As you may be aware, Edison has submitted a return-to-service plan to the NRC Staff. That's under active consideration by the NRC Staff. As soon as we get approval from the Staff, we plan to restart. NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com 5 10 15 20 25 17 1 2 3 4 6 7 8 9 11 12 13 *14 16 17 18 19 21 22 23 24 I'm sure the Friends of the Earth will argue that we should not be allowed to restart until this proceeding is over. I don't believe that's a valid argument, but I certainly understand if they say that. Therefore, to prevent any potential for impact upon restart, we would like this proceeding to go off as expeditiously as possible.
JUDGE HAWKENS: I concur with you, Mr. Frantz. And, Mr. Ayers, although I sympathize the fact that you're busy I know you do have other attorneys working with you. These non disclosure agreements are fairly standard.
In fact, there's a model non disclosure agreement in 65 NRC at 420. It's one provided by the Commission.
But these, as you will know, are fairly routine and I would not anticipate coming to agreement of the contents of one should be that difficult.
So I will ask the parties to work together and endeavor to have one as soon as possible and no later than this Friday, the 6th of December.
MR. FETTUS: Your Honor, this is Geoffrey Fettus of NRDC. Am I wrong in presuming that we would be part of this non disclosure agreement?
And I could commit to being done by Friday. JUDGE HAWKENS: Thank you, but, yes, you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.w. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com 5 10 15 20 25 18 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 are wrong. Under our regulations and case law, the right of access under non disclosure agreements is for the Board and the parties to the proceeding.
So unless Mr. Frantz were willing to include you in this, you ordinarily would not be entitled to access. I should also mention --I said that it would be Friday, the 6th of December.
I meant Friday, the 7th of December.
MR. FETTUS: Thank you, Your Honor. This is I understand that, but this is such an unusual proceeding.
I was wondering if in the process of whatever you would be sending out this week if there was something you were contemplating in terms of an on-ramp for parties that would like to participate in this proceeding.
As you may recollect from our response in June, we expressed a significant interest in being able to participate and would happily follow whatever strictures that Board sees fit in allowing that on-ramp for parties to participate appropriately without undue delay to any of the parties or prejudice.
JUDGE HAWKENS: We will provide an on ramp for NRDC to participate in support of Friends of the Earth, Mr. Fettus. And I'll address that a little bit later when I talk about the scheduling of the NEAL R. GROSS COURT REPORTERS AND 1323 RHODE ISLAND AVE., (202) 234-4433 WASHINGTON, D.C. 20005-3701 5 10 15 20 25 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 19 briefing.
MR. FETTUS: Thank you very much, Your Honor. JUDGE HAWKENS: Moving on, one of the issues the Board is wondering about is who has the burden of persuasion on the first issue. Hopefully, that's not an issue we'll have to struggle with. We'd only be confronting that if at the end of the day all the arguments and the evidence resulted in absolute equipoise.
But I'm wondering if at this juncture any of the parties have a view on the issue of who has the burden of persuasion on the first issue. Mr. Ayres. MR. AYRES: Your Honor, I will say I haven't thought about this. But it does seem to me as if to move to Friday of starting the reactor is Edison. And since what's involved here is whether this process is the appropriate one perhaps they should have the burden of establishing that it is. JUDGE HAWKENS: Your position does not surprise us. It's not an unreasonable one. I'd like to hear from Mr. Frantz. MR. FRANTZ: Yes, Judge Hawkens. We're still at the pleading stage. We haven't admitted any NEAL R. GROSS COURT REPORTERS AND 1323 RHODE ISLAND AVE., (202) 234-4433 WASHINGTON, D.C. 20005-3701 5 10 15 20 25 20 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 parties yet. The Board has not yet ruled on the standing or contentions submitted by Friends of the Earth. At this stage of the proceeding, it's always the burden on the Petitioner to present enough information to substantiate that the Petitioner has met its 2.309 of the regulations.
And that's the standard case law. JUDGE HAWKENS: Thank you. Mr. Roth, do you have any view you'd like to share with us at this point? MR. ROTH: David Roth for the Staff. Certainly, the movement who in this case is not the movement.
It's the Petitioner for the hearing has the burden of proof so that the issued CAL is a license amendment.
JUDGE HAWKENS: All right. That will be just be one of the legal issues we will ask the parties to brief. Another of the issues that we would like briefed would be if the Staff's Section 2.206 inquiry leads them to the conclusion that the steam generator replacements require license amendments.
What impact, if any, that would have on this proceeding before the Licensing Board? And rather than soliciting curbstone NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234*4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com 5 10 15 20 25 21 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 reaction to the parties, I'll just throw that out there and say that's one of the issues that we will be interested in having the parties to address as well. Let's move on now to briefing schedule.
And Mr. Frantz indicated earlier that the Respondent would like this proceeding to move with dispatch and the Licensing Board shares that view. We also realize we're approaching a holiday season. And all the parties as well as the Board will be benefit by good comprehensive, thorough briefing of the issues presented.
I know the parties at this point are at somewhat in the dark insofar as we haven't issued our order identifying questions we want addressed.
Nor do they have the benefit of access to the proprietary information.
Having said that, the Board's view is that we should hear first from the Petitioner , give several days for the amicus to provide any supporting views, but not any time that would result in undue delay to the briefing schedule.
Within a period of time, we would want Respondent and then the NRC to provide a response.
And then we would give a short period of time to hear a reply from the Petitioner.
MR. AYRES: Your Honor, this is Richard NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com 5 10 15 20 25 22 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 Ayres. I share the company's concern about time and yours as well. And we do not --I want to assure you want to drag this proceeding out. We think it's important to get a decision expeditious and hopefully a good one. We do think though that given that there are a number of documents which we haven't seen and which we need to see in order to brief it that the Board needs to provide some time for the exchange of documents and analysis and perhaps for preparation of expert reports or reports anyway that summarize the facts for the Board and for the parties. So we would insert a period of time for that factual element before we got to the briefing.
MR. FRANTZ: Judge Hawkens, this is Steve Frantz. That is paramount to a hearing even before the petition to intervene has been accepted.
Under traditional NRC regulations and practice, there is no wait to obtain discovery until the Board has ruled on the petition and has admitted at least one contention.
The Board has not done that yet. So this idea of getting documents and then preparing expert reports is just simply premature at this stage. MR. AYRES: Your Honor, we look at the regulations.
This is Mr. Ayres again. We don't see NEAL R. GROSS COURT REPORTERS AND 1323 RHODE ISLAND AVE., (202) 234-4433 WASHINGTON, D.C. 20005-3701 5 10 15 20 25 23 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 any regulations that apply as to this procedure that apply in their terms. So we feel that the Board is appropriately fashioning its own procedure here from using templates that are in the regulations.
Our argue is that what you need to do is to set up a schedule and a series of actions that will in fact reach the right conclusion and give you what you need to reach the right conclusion rather than being hung up by trying to find exact replicas of this process which don't exist in the regulations.
JUDGE HAWKENS: Could I please hear from the staff on this matter? Mr. Roth? MR. ROTH: Certainly.
David Roth for the Staff. As the Commission's order notes, we only need consider the issues for contention admissibility under 2.309 if the Board concludes that issued CAL was a de facto amendment.
So until that first issue is fully briefed, it's really premature to consider issues beyond that. And again, it's just the Commission's plain language of its order is the confirmatory action letter issued to SCE. And so that's the topic that should really be subject to the first round of briefing.
And that shouldn't really have any proprietary document access ease to fully bri that. NEAL R. GROSS COURT REPORTERS AND 1323 RHODE ISLAND AVE., (202) 234-4433 WASHINGTON, D.C. 20005-3701 5 10 15 20 25 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 24 JUDGE HAWKENS: WeIll once again as we said earlier I Mr. Roth l we disagree with you on whether it would require access of proprietary information.
Whether we would rely on it is another matter. But we doni t know what I s in there. And looking at that will give meaning to the confirmatory action letter. without that l what we/re left with is a very broad statement.
But without any factual it provides very little factual understanding for the Board and certainly insufficient factual understanding for us to comply with the Commission/s direct in resolving Issue No.1. And that/s a threshold issue. We doni t have to resolve Issue No.2 if we resolve Issue No. 1 in the negative.
But Issue No. 1 has been placed before us. It/s not like your typical standing and contention admissibility issue. We essentially have entities who have status as parties before us which is the Petitioner Friends of the Earthl Respondent Southern Cal Edison and the NRC Staff. We want to hear from them. We want to receive full briefing on the matter that will inform us and allow us to provide a reasoned decision for the parties and for the Commission/s benefit if NEAL R. GROSS COURT REPORTERS AND 1323 RHODE ISLAND AVE., (202) 234-4433 WASHINGTON, D.C. 20005-3701 5 10 15 20 25 25 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 that's necessary.
MR. FRANTZ: Judge Hawkens, this is Steve Frantz again. I might also add that the Commission or the Board does not need to decide Issue No. 1 if it rules against Friends of the Earth on Issue No.1. And Southern Cal i fornia Edi son has obj ected to the standing and contentions submitted by Friends of the Earth and to its timeliness.
So if the Board rules in favor of us on any of those three issues, the Board doesn't even need to reach the first question.
JUDGE HAWKENS: Thank you, but we think you're flatly wrong on that based on the language used by the Commission in framing the issues presented to us, Mr. Frantz. We believe we have to resolve Issue No. 1 and then if we resolve that in the affirmative address Issue No.2. We think the Staff is correct in their assessment of that. We had originally
-The Board had talked about moving expeditiously.
We had talked about, we had contemplated the following schedule.
And let me say this was what we initially contemplated.
It's not written in stone. We had talked about 14 days from the issuance of our scheduling order or no later than December 21 for the Petitioner to provide its brief. NEAL R. GROSS COURT REPORTERS AND 1323 RHODE ISLAND AVE., (202) 234-4433 WASHINGTON, D.C. 20005-3701 5 10 15 20 25 26 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 We're contemplating seven days ter the Petitioner submitted its brief the amicus to submit r brief or no later than December 28th. We had contemplated giving the Respondent and the NRC Staff ten days from receipt of the amicus brief or no later than January 7th for submission of their brief. And then replying providing seven days for the submission of a reply by Petitioner to amicus or no later than January 14. Having said that, I think Mr. Ayres makes sense in saying it's very difficult to determine whether that time frame will be adequate given the fact that you don't know yet precisely the scope of the issues we're interested in and don't have access to all documents that may be relevant to the resolution of those issues. So keeping in mind that the Board is as anxious as Southern Cal Edison this to move forward promptly.
I'd like the parties after they receive our scheduling order to get together and agree upon a proposed briefing schedule and then submit that joint proposed briefing schedule for the Board's consideration.
I'll first ask Respondent, Mr. Frantz. When do you think would be reasonable time the NEAL R. GROSS COURT REPORTERS AND 1323 RHODE ISLAND AVE., (202) 234-4433 WASHINGTON, D.C. 20005-3701 5 10 15 20 25 27 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 submission of such a joint proposed order? MR. FRANTZ: Judge Hawkens, I think the schedule you laid out was an excellent schedule, namely to have the Petitioners submit their brief on December 21st and the other parties proceed based upon that. To have the Board issue an order and then have the parties get together, you're presuming that we can reach agreement on a schedule.
I wouldn't be so optimistic.
JUDGE HAWKENS: I have great confidence in you, Mr. Frantz. You should have it in yourself as well. MR. FRANTZ: I have confidence in myself, Judge. I'm not sure if I have confidence in the abili of all the parties to agree on a schedule.
JUDGE HAWKENS: All right. MR. FRANTZ: And then to have a filing on that. Then the Board has to issue another order. And we're already well into January or February before the briefs I think eventually get filed. JUDGE HAWKENS: Let me hear from Mr. Ayres please. MR. AYRES: Judge Hawkens, I think the idea of our at least attempting to develop a schedule NEAL R. GROSS COURT REPORTERS AND 1323 RHODE ISLAND AVE., (202) 234-4433 WASHINGTON, D.C. 20005-3701 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it is a very good one. I am confident Mr. Frantz has good negotiating skills and I hope mine are as good. JUDGE HAWKENS: And I think everybody's cooperative skills will match their other skills in this I would hope. MR. AYRES: Absolutely, yes. JUDGE HAWKENS : Is that correct Mr.I Ayres? MR. AYRES: Absolutely.
JUDGE HAWKENS: Let me hear from the Staff please on this scheduling matter. MR. ROTH: David Roth for the Staff. We believe we can achieve a January 7th schedule.
We know that we have to verify people's holiday coverage to be absolutely certain. But we believe that's doable for a brief from the Staff. JUDGE HAWKENS : And if Mr. Ayres determined that additional time is needed once he receives our order, does the NRC staff believe it can work in cooperation with them to come up with a mutually agreeable proposed briefing schedule?
MR. ROTH: David Roth for the Staff. Certainly, Your Honor. JUDGE HAWKENS: All right. Thank you. What the Licensing Board will do then is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.w. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com 5 10 15 20 25 29 1 2 3 4 6 7 8 9 11 12 13 14 16 1 7 18 19 21 22 23 24 layout what it has said today, indicate in its order its hope that this case will move promptly and expeditiously, but also indicate that if a party believes that this schedule is unworkable, that party will advise the other parties and the parties then will work together jointly to provide the Board with a joint motion containing a revised schedule.
The Licensing Board will instruct the parties in its order. It would like the briefs to be standalone briefs such that they will not incorporate anything by reference and that they will also provide an appendix in which the parties include all documents that provide material support for any particular argument.
And if they are relying on a lengthy document but only need a small extract from that document, they should feel free just to include a shortened version of it. But as I say we like the appendix to include all documents that are material to the arguments being advanced by the parties. Any questions from any of the parties? MR. AYRES: Judge Hawkens, this is Richard Ayres again. As I mentioned earlier, we have been going through the response to the CAL and then developing a list of documents to which either are not NEAL R. GROSS COURT REPORTERS AND 1323 RHODE ISLAND AVE., (202) 234-4433 WASHINGTON, D.C. 20005-3701 5 10 15 20 25 30 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 included or are heavily redacted.
I think we would like to file that list with the Board because weld like you to consider ordering that the Licensee and/or Staff make those documents available to us expeditiously.
Would that be okay with the Board? JUDGE HAWKENS: How soon could you get that list to uS I Mr. Ayres? MR. AYRES: I think by the end of the week. MR. FRANTZ: This is Steve Frantz. Again, we would strongly object to this process. The rules simply do not provide any opportunity for discovery prior to admission of the contention.
And what Mr. Ayres is proposing is simply backwards.
He wants to have a hearing and discovery before even making a threshold determination on the petition.
JUDGE HAWKENS: Mr. Frantz, the Board understands your position.
But it's important for all the participants to this proceeding and the Board to have access to material that's relevant to the substantive issue posed to us by the Commission.
And to the extent there is information in subsequent documents that give meaning to the confirmation action letter thatls materi that the Board needs and materials the parties must have access to in order to NEAL R. GROSS COURT REPORTERS AND 1323 RHODE ISLAND AVE., (202) 234-4433 WASHINGTON, D.C. 20005-3701 5 10 15 20 25 31 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 make their arguments to the Board. Mr. Ayres, rather than providing me with a list that will hold the issuance of the Board's order, the Board will issue its order. The parties will work together to agree and execute a non disclosure agreement at the earliest possibility.
Once the non disclosure agreement has been executed and put in the docket, there is no reason why Friends of the Earth should not be entitled to the relevant information that has a bearing on the confirmatory action letter and will give meaning to that letter and meaning to whether that letter constitutes a de facto license amendment.
So I would expect that again once the non disclosure agreement is executed you should be able to work with Mr. Ayres in obtaining access to those documents that are material.
And that would not constitute discovery.
JUDGE BARATTA: Mr. Frantz. This is Judge Baratta here. I refer you to the October 3rd letter that was sent to Mr. Callege (phonetic) which is part and partial to the CAL. And I think you need to read that to understand where we're headed. MR. FRANTZ: Judge Baratta, I'm fully familiar with that document.
I was involved in the NEAL R. GROSS COURT REPORTERS AND 1323 RHODE ISLAND AVE., (202) 234-4433 WASHINGTON, D.C. 20005-3701 5 10 15 20 25 32 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 process of developing it. JUDGE BARATTA: It outlines the actions that were taken as part of the CAL. I cannot understand how you can say it S not a part of the CAL.I MR. FRANTZ: Judge Baratta, the CAL itself just says that Edison shall determine the causes and implement actions to prevent loss of the tube integrity, including establishing a protocol of inspections and operational intersection (phonetic) or outages for further inspections.
To me that's very straightforward.
It does not under the governing standards establish any new authority for Edison. And that's the standard for whether or not there's a need for a license amendment as well as whether the action in question establishes new licensing authority not previously held by Edison. This imposes more restrictions on us. JUDGE BARATTA: That's why we're here to be determine that if I recall correctly.
MR. FRANTZ: I'm sorry, Judge Baratta. JUDGE BARATTA: I bel ieve that's what we're here to determine, isn't it? MR. FRANTZ: I don't believe that you are here to determine whether our restart actions require a license amendment under 50.59 of the regulations.
NEAL R. GROSS COURT REPORTERS AND 1323 RHODE ISLAND AVE., (202) 234-4433 WASHINGTON, D.C. 20005-3701 5 10 15 20 25 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 33 I believe you're here to determine whether the CAL actions constitute a license amendment and using governing precedent which states that if an action expands the licensing authority of the licensees that then requires a license amendment or constitutes a de facto license amendment.
In fact, the Commission's order cites cases where that very principle was evaluated.
And in particular I believe it's the Millstone case. And that is I think a very straightforward and simple question.
I don't think the Board needs to look at whether every action we're taking is a 50.59 type of an action. That's a staff compliance matter. JUDGE BARATTA: You misinterpreted what I said earlier. We'll find out in your brief. JUDGE ARNOLD: This is Judge Arnold. We seem to be not necessarily focusing on the same interpretation of what the Commission has told us to determine on the first issue. I myself am not --I will not be swayed very much by a determination that the original steam generator replacement should or should not have been done under 50.59. I'm looking at the present circumstances where Unit 2 has the same design steam generators as NEAL R. GROSS COURT REPORTERS AND 1323 RHODE ISLAND AVE., (202) 234-4433 WASHINGTON, D.C. 20005-3701 5 10 15 20 25 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 34 Unit 3. Unit 3 steam generators have demonstrated a failure mechanism with safety implications.
So the question I have is does Unit 2 require a license amendment in order to restart with steam generators that are currently installed that could potentially demonstrate the same failure mechanism as seen in Unit 3. That's what I would like to see in the briefs, something about that. MR. ROTH: Your Honor, David Roth for the Staff. In reviewing page four of the Commission's order, the Commission notes reliance on 2.206 and notes that if Friends of the Earth prevails in a 2.206 argument and SCE needs a license amendment, then it may be able to obtain the adjudicatory hearing that it seeks. So with respect to 50.59 and license amendment whether it's needed or not, I think that's separate from what the Commission has put before the Board in reviewing whether the Staff's CAL was a de facto license amendment.
JUDGE ARNOLD: If we can determine that starting up Unit 2 right now with those steam generators in there is something that would require a licensing amendment and if this is going to be done using a process that has been initiated by the CAL, then that process started by the CAL is in fact NEAL R. GROSS COURT REPORTERS AND 1323 RHODE ISLAND AVE., (202) 234-4433 WASHINGTON.
D.C. 20005-3701 5 10 15 20 25 35 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 intended to accomplish that license amendment.
MR. ROTH: David Roth for the Staff. Again the CAL was issued prior to any proposal with respect to whether a 50.59 violation might occur, would occur, did occur, whether a license is needed or not. The Staff is actively reviewing that right now. And again the issue before the Board is just whether the Staff's CAL is a de facto amendment.
MR. AYRES: Judge Arnold, this is Richard Ayers. I think you are identifying exactly the issue as we see it that's before the Board. And it is because the response to the CAL is a critical part of deciding whether this is a proceeding that should be covered as a license amendment that we think it's important to have a chance to review these documents.
Appreciate the Board's agreement in that and we will follow the process outlined by Judge Hawkens. JUDGE ARNOLD: Thi sis Judge Arno ld again. One of the things this CAL process is attempting to determine is what is the power that you can operate safely at. Now that's certainly not a standard of what you think of as a safety limit, what power can the steam generators take for steady state operation.
But it does seem to be something that might require It's putting a tighter control on operations than NEAL R. GROSS COURT REPORTERS AND 1323 RHODE ISLAND AVE., (202) 234-4433 WASHINGTON, D.C. 20005-3701 5 10 15 20 25 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 36 specified in the technical specifications.
And I would think that weld have to consider whether that l if it I S temporary modi cation I is in fact the type of thing that requires a license amendment.
MR. FRANTZ: This is Steve Frantz. And I Judge Arnoldi in response tothat l if welre operating within our technical specifications I then by definition we doni t need a license amendment for operating at a reduced power level. Plants operate at reduced power levels all the time. JUDGE ARNOLD: So you/re saying you would feel confident to operate at 99 percent power with those steam generators.
MR. FRANTZ: I do not say that Judge I Arnold. JUDGE ARNOLD: You said at reduced power. MR. FRANTZ: What I said that operation at 70 percent power is within our existing operating authorization under the tech specs and the license. And therefore we doni t need a license amendment to operate at 70 percent power. MR. AYRES: This is Mr. Ayres. I view that as whether a license amendment is needed depends on why the operation is limited to a lower percentage.
So while it/s certainly true that a plant is running NEAL R. GROSS COURT REPORTERS AND 1323 RHODE ISLAND AVE., (202) 234-4433 WASHINGTON, D.C. 20005-3701 5 10 15 20 25 37 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 along swimmingly at 100 percent and wants to reduce to 80 percent under its existing license, that would be permitted.
It's a lot less clear to us that a plant which has had the problems that this one has which then comes and asks for 70 percent limit on its operation whether that is within the license or whether that's really asking for an amendment to the license. JUDGE HAWKENS: Those are fair questions and I think those are the types of questions that will receive briefing by the parties and we will look at very closely whether we should be guided solely by the case law as suggested by Mr. Frantz or whether we will be guided also by the criteria in Section 50.59 in determining whether a license amendment was required in this case. Let me give one final opportunity for any further inquiries or observations by the parties. Mr. Ayers. MR. AYRES: I do not think so, Judge Hawkens. We appreciate the session and we'll work to try to make sure we get this thing moving quickly. JUDGE HAWKENS: Thank you. Mr. Frantz. MR. FRANTZ: I have nothing further to add NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com 5 10 15 20 25 1 2 3 4 6 7 8 9 11 12 13 14 16 17 18 19 21 22 23 24 38 with what's been already said. JUDGE HAWKENS: Thank you, Mr. Frantz. Mr. Roth. MR. ROTH: David Roth for the Staff. Beyond reemphasizing our narrow view of what the Commission has and noting the 70 percent proposal did not exist at the time the Staff issued its CAL, we have nothing further to add. JUDGE HAWKENS: Thank you. Mr. Fettus, I'll give you an opportunity here in closing if you have any questions or comments.
MR. FETTUS: No, Your Honor. I have some concerns regarding our amicus in terms of how we will effectively contribute if we don't have access to any of the documents.
I'm sure I will be quite capable and as you probably know I'm an experienced NRC practitioner.
But it is an unusual situation as you and the fellow members of the Board have acknowledged.
And I'm happy to try and make sure we comply wi th any schedule that you set out. And I appreciate the opportunity to weigh in. But I'm trying to figure out precisely how we will weigh in without access to a lot of the documents that are at issue here. JUDGE HAWKENS: Thank you. I understand.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., NoW. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com 5 10 15 20 25 39 And with that, we will now close. Thank you very much. Off the record. (Whereupon, at 2:55 p.m., the above entitled matter was concluded.)
NEAL R. GROSS COURT REPORTERS AND 1323 RHODE ISLAND AVE., (202) 234-4433 WASHINGTON, D.C. 20005-3701
'. )
This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission Southern California Edison Co. San Onofre Station Unit 1 & 2 Docket SO-361-CAL
& SO-362-CAL (teleconference) were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken and thereafter reduced to typewriting under my direction and that said transcript is a true and accurate record of the proceedings.
Official Neal R. Gross & Co., NEAL R. GROSS COURT REPORTERS AND 1323 RHODE ISLAND AVE., (202) 234-4433 WASHINGTON, D.C. 20005-3701