we have one case that remains that are sitting for today and that is the jersey environmental federation at all versus united states nuclear regulatory commission number zero nine dash twenty five sixty oldest nuclear power plant it's located around fifty miles west of here on the just the shore now hearings hearings in these cases are not typical or not at all in fact found the hearing it was held in this the lexus from the agency to the reactor own are saying you have to monitor this component very carefully have to moan where is this plant located in relation to the sure this is that just south of toms river petition basically saying how can it be on the record how can you saying that it needs monitoring the life of the plant but they're not allowing the monitoring it subsequently became evident actually that the the monetary upon which they had base their decision discontinue was incorrect if i can get back to the procedural issues the deficiencies hearing that the normal i guess blink response is that after what happened to us at three mile island and seventy nine there would be even more vigilance than there existed there for because no one wants that lot in their scutcheon you're basically saying that that link response is a necessarily the case absolutely i mean that there's been a number of incidents  as well as i look at this case and i have i commend first i commend you for i think both sides done an excellent job in their briefing on a very complex issue you know we don't we don't see many cases like this before our court but in looking at the briefs and trying to evaluate the record i just struggling with you know how we call this an abuse of discretion from our view ok let contention about the adequacy of the moment we did that and among other things we come tended about the frequency of monitoring how often it will be done and also about the special scope of the monitoring how much area would be monitored in the end at around less than half a percent of the area around the question being moments it and although some spot mom she was out of later the actual aerial monitoring was never charged and so the agency denied us that contention and spatial scope even th that there could possibly be a problem with potential corrosion corrosion in inaccessible areas right list of inaccessible areas there's two different types inaccessible area one is the area where there's this concrete on one side this concrete reopening standard even though this is an issue that we've never had the chance to raise before but this the staff has completed its review of excellence application of so called green function the start right the staff did complete their review of it  use the reopening standard where it's a wholly new issue because that serves to exclude citizens completely from hearing on a whole new issue due to the very limited amount of discovery available anything further they please the court my name is robert rader and i represent the nuclear regulatory commission first i wanted to respond to the court's concerns about nuclear safety in general i want to make very clear on behalf of the commission that following the t m i accident  we as well as the industry made strenuous efforts to upgrade or regulation or regulatory strength in our regulatory programs there have been in the industry groups developed as a result of the t m i accident and we've continued to work with these groups and with industry to assure him that no further accidents occur as a result we have what i think is one of the finest safety records in american industry basically what i generally what i hear them saying is that they're coming out there they're pointing out possible weaknesses at least things that they perceive that need more study and instead of in effect working with them what you're doing is you're saying well they're out of time and that's not the way the system should be working is important understand iran or that with respect to nuclear power reactor licensing there are two distinct aspects one aspect involves the  review of the application to make sure that the applicant licensee has satisfied all of our requirements for safety and that process goes one regardless of any judy cation were even a request for education as the core pointed out in some cases we don't even have a request for hearing but our strenuous staff review supervised by the commission nonetheless assures plant safety we don't rely upon hearings to produce safe reactor licensing however we use it as an adjunct and when we do give an opportunity for hearing we expect potential litigants to come to was armed with facts armed with expertise and resent timely contentions i mean this is take for example the dry well they talk about ok there was potential to have water you do this later discover that in fact there is standing water doesn't that basically warrant the submission of th contention i think iran is referring to the two contentious relating to the embedded portion of the dry well which came up in december of two thousand and six essentially what the board found when i got water was discovered october to those things i'm saying the contention itself was filed in just in december of two thousand and six however you're on the point that the the board explained in which the commission accepted in terms of the timeliness of the contention is that the discovery of water as such that not at  any new knowledge to this issue in fact the trenches had been dug where the water had collected for the purpose of u t monitoring in other words it was understood that water could infiltrate because the reactor operation or could infiltrate from groundwater sources and therefore quick collect in the inside imbedded portion of the reactor lining a dry well lining and therefore you would be required the trenches were dug to accommodate the u that was done so the actual discovery of water in those trenches subsequently did not really add anything new to our body of knowledge regarding the potential for water infiltration and therefore the potential that interaction with the trenches for u t monitoring have been done were it not for their contentions pertaining to the not having enough testing or adequate testing for for that you are the trenches were long existence they they long preceded the application for renewed license they were they were dug as i recall back in may many years ago perhaps back in the one nine hundred ninety s there was a program in place as the board points out throughout its decision i would refer the court to the discussion of the previous programs beginning at page two hundred seventy of the appendix and going on several pages after that and also it later in the initial decision of the board there is discussion of the program that was in place and there's a very good explanation generally speaking of the monitoring program that was in place and which laid the basis for the commission's work on his dog before the hundred ninety six testing or u t testing or what i don't know exactly when the trenches were dug but that information is clearly within the licensing boards decision regarding this particular it would have been timely iran or when the original contention which was accepted was filed a bare the point of the board was that all of the information regarding the previous program was in place was in the record and was available to the petitioners all of that information could and should have been drawn upon by the petitioners for them to formulate whatever contentions they had regarding any deficiencies in the monitoring program were even the absence of  program our regulations are clear that place that the petitioners have the opportunity to challenge not only deficiencies in the program but also the absence of any program whatsoever the apica provision which the which the board cites repeatedly throughout a discussion of these issues in addition to the timeliness issue is section two point three zero nine f one roman six and it says that in a proceeding such as this the obligation lies upon the intervenor challenging the application provides sufficient information to show that a genuine dispute exists with the applicant licensee want to material issue of war fact and it goes on to say that in addition to that if the supporting reasons in other words if the petitioners believed that the modern program which they proposed in their contention which was admitted and was full we litigated required various aspects which were not added until the contention was revived six or seven months later they should have included those aspects of originally in their contention that was the point of the license licensing board and the point of the commission upon an affirmation of what you read there talks about timelin honor might my point there is that the regulation anticipates that a party can challenge the absence of a program in other words if a program has elements a b and c the petitioner can say it also requires d e aneath but suppose there is no program with a b in say the petitioner still has the right to come in and say as they did in this case you don't have any program we did have the the licensee did have a program for visual monitoring  mr webster is correct that the the contentious proposed the continuing of the u t modern into the renewal period and that contention was accepted it was litigated a great length and i would ask the court to to take care to review the merits and the disposition the merits one that contention because it demonstrates that the n r c is concerned about safety we gave extraordinary meticulous care to the development of the record and the decision on the contention that was admitted and as a result i feel that the plant safety wasn't proof so for that one harm what harm would have there been to given a hearing on this contention well there's never harm in the particular sense of damage to the plant safety that's true i mean the plan is not to be made less safe but the courts of recognize that technical agencies like the n r c have limited resources and because we have limited he resources to devote to here is not only  judges but also our technical staff we require that that contentions be timely so as not to delay the proceeding and as to allow us to reach a timely decision requested by the licens through the relicensing process that clearly hearings have been the exception rather than the rule there aren't that many renuart allocations your honor we have a we have over one hundred operating reactors and many of those will will not seek renew or the renewal has not yet come to term i think there are about fifteen in the works i don't know how many of those were holding hearings but we're talking about a relatively small universe of reactors that have actually gone into renewal proceedings without those statistics would somewhat argue with the point of the petitioners that if you have a small universe even though you know staff is unlimited you know what harm would there be to provide a hearing particularly when a significant issue well our staff is not divided into the units that deal with the renewal issues and operating or understand but you don't have a lot of new reactors coming online either that's also true your honor but i can assure you if if he were to look at or o the courts have said that we have discretion to have these rules therefore if we have discretion under the a p a in the tomic energy act to have a rule which requires a timely submission the only question for the court to decide is whether or not there was an abuse of discretion in its in its administrator a say on the reopening rules that this really wasn't a reopening question and that application of that rule was in fact in err they do say that your honor and that requires a manipulation of the union of concerned scientists case which is actually wrong what the what the petitioners are arguing is that the union of concerned scientists case in cases like it which held that the n r c could not exclude from licensing hearings issues material to license such as the results of emergency plenty exercises somehow requires in a licensing case that the commission consider any issue that was not previously proceeding that standard would absolutely raise havoc with our proceedings because if we'd actually create greater rights than initially existed at the beginning the proceedings we cannot have a reopening standard that allows any new issue a committe e hearing just because it wasn't previously litigated in that same proceeding our rules specifically applause the same rule as to new information or intentions that were litigated as well as new contentions that were queen fallacy and again i'd just like to point out as the as the board did there was an opportunity for the petitioners to snip all of their contentions based upon the record which i've cited again today and which i would invite the court to review not only with regard to the proceeding in general but also with regard to the particular handling of these contentions because the board in the commission took meticulous care to point out the particular points of the record which demonstrated that publicly available information could it have been relied upon by the petitioners to frame their contentions don't timely matter the fact remains that the plaintiffs did submit a timely contention and it was accepted and it was fully litigated that's the proof of the putting of the taste on the metal fatigue issue they point out that the information about the non conservative application of the green's function was brought to your attention by an interviewer intervener in a  licensing proceeding i have no way to validate that your honor the claim was that one of their experts raise an issue which became an issue in the vermont yankee case i haven't verified that i don't know whether it's true or not you are except counsel at his word but the point is the staff sent a generic information notice to each of our reactor operators and said this has been identified as a potential issue we want you to go back and requalify your your use of the green function in terms of your calculation of cumulative usage usage factor that was done in this case the only issue was whether or not the issue was safety significance of fish and in this case to require reopening the information submitted by the petitioner one this point to the n r c did not demonstrate a safety significance under the standard that we apply in reopening again a standard that was approved by this court in t the the board relied upon a staff affidavit in part which this court approved in t m are going to be part of what they're saying is look there's we bring to your attention somebody something that someone else found which should send up a red flag and yet what you're doing is shutting us out of the process why not let them back to justice or should i mean what's the harm with with having them involved so that you know maybe they go further than you would but as we also agree we can't afford to have a mistake here well that's the entire point of the fin of the board that there is no mistake quote unquote the fact is that the information provided there's a difference between the safety significance of this calculation as to apply to a particular plant and the way it was performed and the issue in general now i don't know who brought the attention to the attention commission the issue in general but i do know that the commission did respond that they responded generically to all reactor licensees and  and it asked in particular for the licensee in this case to provide information which was reviewed in the record you can see in the court's sorry in the board's analysis of this late contention that was offered for reopening a meticulous analysis of the technical merits to develop whether or not a safety significant issue arose that was the standard that was applied the correct standard was applied the only question for the court is whether or not there was  of discretion implying in applying that standard to the technical facts which came before the commission as a result of the licensees response and on that point the answer is clear with that given the technical engineering scientific night of the nuclear regulatory commission this court has repeatedly said that deference is owed us on these kinds of factual questions with there have been harm of course is never harm in having a hearing again as i say except to delay the process and to use scarce agency resources that should be used elsewhere for important issues i do very much would suggest that the default ought not to be adversarial that occasion there are all sorts of reasons why and that's why there's case after case after case that is upheld this agency's discretion about constraints upon adversarial  litigation so the notion that there's no harm to having a hearing and the default ought to be adversarial litigation i would suggest as is not once supported by the proper role of this agency and again the case after case after case that how best should groups like the various citizens groups here be heard than what this group was heard this group was every effort was made to bend over backwards to give this group every opportunity to be hurt if they this group is now challenging the of the the lack of opportunity heard on other and different matters that were not raised in many cases in a timely matter and or and this is significant and there because they the contentions themselves did not satisfy the rules so to be heard you comply with the rules like any what and what if let's just say theoretically i'm a saying it's necessarily the case with force agree but let's say they're out of time but they discover a significant problem with regard to a particular plant and obviously the answer can't be that they're out of time you've got to deal with it because none of us for purposes of our i guess national energy policy for purposes of of just of the whole idea of atomic energy in this country you can't afford to have another t m i no one would argue of course you cannot afford to have balancing test and a factors on timely contention such as your honor proposed in the ass track can be heard they getting back to this case in the record in this case there were not sufficient  contentions out of time that met the standards again that have been upheld in case after case after case that that govern whether the litigation has to end at some point and so again going back to the on one time when it's contentions and i like to turn to a couple that we would be that you know we review this on the busa discretion standard are you argument would be that the decision made by the n r c as to whether or not to grant the hearing under time was proper within their jurisdiction and people could argue about it as citizens has it certainly would be abused this crime that is correct union of concerned scientists too that we've that we've cited in both parties cited in the briefs a d c circuit makes that clear timing decisions and time and and and determinations because of this very technical agency this very specialized agency to which virtually unique deference is owed are part and parcel of the deference that is owed to this agency and so when you look at a contention that's brought six months a year two years after the administrative process has started yes the agency has the right in and indeed with all due respect deference is owed to this technical agency to determine whether the criteria for reopening the litigation for allowing yet more adversarial activity to occur is met in this case on an extensive record and again it as as is in our city council that i would also invite the court to look at the thoro these monitoring devices on the dry well though there's been some discussion about a couple of aspects to emphasize about that as of december two thousand and five there is nothing new that petitioners learned or needed to learn to bring the contention right there but the six months plus that that passed and he lapsed nothing new happened within that is as as the colloquy said demonstrated those where those monitors were going to be placed has been known since the one nine hundred ninety s so if not with the original contention in confusion i think when could we have brought the contention that some questions about that to say it could have been timely doesn't necessarily mean it would have been successful and so i think another important fact emphasize here is at no point on any of these contentions with a petition  told you're too early ok that's that's something they've made up to try to justify their late contention there was no contention this case where there were two or there may have been some as alternative grounds were not aging management contentions they were the current licensing bases other words they weren't challenging the renewal period they didn't like the way the plants being operated today that's a subset of reason to deny contention out of time and then one one final thing about the spatial scope we have an interpretation should i don't want th impression to be left that somehow the agency put blinders on and no one looked at where the spacing was as the board pointed out if you look at pitch four sixty two of the appendix the special scope in some sense is part and parcel of what was litigated the time in an interval and there's abundant evidence in the record their own expert provided testimony that there were arbitrary placements and there was a lot of litigation about where these monitors were to be placed so again i think it's important that this court not draw the impression that because what we're now calling the spatial scope contention was admitted that somehow the agency ignored this somehow this wasn't part and parcel of what was assessed and again to go back to something i think it's very important emphasize the th that is actually not what the rule say it is also not what the agency practice has been after all if that were the agency practice it would be very very difficult for us to get a contention admitted because we would have to spot the absence central to fearing next year is part of the concern that you have that not just with respect individual plants that are you challenging the the applicant to prove the agency that safety exists or saying that basically what's been happening as far as we can tell from the record is that the the agency has been basically taking atkins word for it robin really really doing a