ML062130024
| ML062130024 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 07/27/2006 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| Giitter R | |
| References | |
| 50-293-LR, ASLBP 06-848-02-LR, NRC-1171, RAS 12050 | |
| Download: ML062130024 (39) | |
Text
1--7 ^ 9z-f) j< qj ".)
Official Transcript of Proceedings f NUCLEAR REGULATORY COMMISSION
Title:
Entergy Nuclear Generation Company Oral Arguments Docket Number: 50-293-LR; ASLBP No.: 06-848-02-LR Location: (telephone conference)
DOCKETED USNRC July 31, 2006 (2:47pm)
Date: Thursday, July 27, 2006 OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF Work Order No.: NRC-1 171 Pages 457-493 NEAL R. GROSS AND CO., INC.
Court RePorters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433 A- -ES~ q- 3;)
457 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3 *****
4 ATOMIC SAFETY AND LICENSING BOARD PANEL 5 ORAL ARGUMENTS ON CONTENTIONS 6 *****
7 8 IN THE MATTER OF: Docket No. 50-293-LR 9 ENTERGY NUCLEAR GENERATION I ASLBP No. 06-848-02-LR 10 COMPANY AND ENTERGY I 11 NUCLEAR OPERATIONS, INC.
12 (PILGRIM NUCLEAR POWER i 13 STATION) II 14 15 Thursday, 16 July 27, 2006 17 Teleconference 18 The above-entitled matter came on for 19 telephonically, pursuant to notice, at 10:00 a.m., Ann 20 M. Young, Chair, presiding.
21 BEFORE:
22 ANN M. YOUNG, Chairman 23 RICHARD F. COLE, Administrative Judge 24 NICHOLAS G. TRIKOUROS, Administrative Judge NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(202)
- ° 234-4433 WASHINGTON, D.C. 20005 (202) 2344 433
458 1 APPEARANCES:
2 On Behalf of Entercy:
3 DAVID R. LEWIS, ESQ.
4 PAUL A. GAUKLER, ESQ.
5 of: Shaw Pittman, LLP 6 2300 N Street, NW 7 Washington, D.C. 20037-1128 8 (202) 663-8000 9 (202) 663-8007 fax 10 On Behalf of the Town of Plymouth:
11 SHEILA SLOCUM HOLLIS, ESQ.
12 of: Duane Morris, LLP 13 1667 K Street, N.W.
14 Suite 700 15 Washington, D.C. 20006 16 (202) 776-7810 17 (202) 776-7801 fax 18 On Behalf of the Nuclear Regulatory Commission:
19 SUSAN L. UTTAL, ESQ.
20 of: Office of the General Counsel 21 U.S. Nuclear Regulatory Commission 22 Washington, D.C. 20555-0001 23 (301) 415-1582 24 (301) 415-3725 fax 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(202) 234-4433 WASHINGTON, D.C. 20005 (202) 234-4433
459 1 On Behalf of the Massachusetts Attorney General:
2 DIANE CURRAN, ESQ.
3 MATTHEW BROCK, ESQ.
4 Of: Harmon Curran, Spielberg & Eisenberg, LLP 5 1726 M Street N.W.
6 Suite 600 7 Washington, D.C. 20036 8 (202) 328-3500 9 (202) 328-6918 fax 10 On Behalf of Pilgrim Watch:
11 MARY LAMPERT 12 Of: Pilgrim Watch 13 148 Washington Street 14 Duxbury, MA 02332 15 (781) 934-0389 16 (781) 934-5579 fax 17 Also Present:
18 JERED LINDSAY, LAW CLERK 19 ROBERT PALLA, NRC STAFF 20 ALICIA WILLIAMSON, NRC STAFF 21 RAMACHANDRAN SUBBARATNAM, NRC STAFF 22 ROBERT SCHAAF, NRC STAFF 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(202) 234-4433 WASHINGTON, D.C. 20005 (202) 2344 433
460 1 PROCEEDINGS 2 10:03 A.M.
3 JUDGE YOUNG: All right, let's go on the 4 record.
5 This is Judge Young and Judge Colin, Judge 6 Trikouros are also here, along with Jered Lindsay.
7 Let me just ask everyone to identify 8 yourself. Let's start with the Staff.
9 MS. UTTAL: This is Susan Uttal, U-T-T-A-10 L. I'm representing the NRC Staff. I have with me 11 Robert Palla, Alisha Williamson, Ram Subbaratnam and 12 Robert Shaw from the Staff.
13 JUDGE YOUNG: If the Court Reporter needs 14 any name spellings, we can do that at the end, I 15 guess.
16 And Mr. Gaukler, you're going to be 17 arguing on behalf of Entergy. Mr. Lewis is on the 18 line, but at a remote location.
19 MR. GAUKLER: That's correct, Your Honor.
20 JUDGE YOUNG: Then Ms. Lampert, you're 21 present for Pilgrim Watch.
22 MS. LAMPERT: That's correct. Not being 23 a lawyer, I'll just have comments.
24 JUDGE YOUNG: And Ms. Curran and Mr. Brock 25 are present for Massachusetts Attorney General.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(2C 234-4433 WASHINGTON, D.C. 20005 (202). 234-it433
461 1 MS. CURRAN: That's right.
2 MR. BROCK: Yes, Your Honor.
3 JUDGE YOUNG: Did I leave anyone else?
4 MS. HOLLIS: This is Sheila Hollis.
5 JUDGE YOUNG: I'm sorry, thank you.
6 Sheila Hollis.
7 MS. HOLLIS: And Your Honor, we may have 8 comments, but we will not be participating in the 9 argument per se.
10 JUDGE YOUNG: Okay, and actually, we may 11 not need to spend too long this morning based on the 12 information that was provided in the briefs and 13 responses now.
14 I did have one question. We got Mr.
15 Gaukler's letter and we got the Massachusetts Attorney 16 General's response. We didn't get anything from the 17 Staff and I wanted to make sure that was not a 18 mistake.
19 MS. UTTAL: I'm sorry. I didn't file 20 anything and I didn't think to send you a letter 21 saying I wasn't going to file anything.
22 JUDGE YOUNG: Okay. Just wanted to make 23 sure we weren't overlooking anything.
24 COURT REPORTER: I'm sorry. Who was that 25 just speaking?
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(202) 234-4433 WASHINGTON, D.C. 20005 ( 234-0 M33
462 1 JUDGE YOUNG: Susan Uttal just spoke right 2 before me. Okay, we're going to be talking about the 3 Massachusetts Attorney General contention and Pilgrim 4 Watch contention four to the extent that we have any 5 questions this morning.
6 Judge Trikouros, why don't you go ahead, 7 first, with any questions?
8 JUDGE TRIKOUROS: Yes, I thank you very 9 much for the responses. They were very good, very 10 helpful.
11 I just want to make sure that I understand 12 the big picture. So since we're here, I'll just 13 pursue that.
14 When the Massachusetts Attorney General 15 says that the failure probability would be much higher 16 than evaluated in the reference documents, namely, the 17 GEIS document, referenced in the GEIS document, NUREG 18 1353, is the basis for that statement solely the 19 argument that 0.25 conditional zirconium fire 20 probability is too low?
21 MS. CURRAN: That's one of the bases.
22 Another is that partial drainage is a more severe 23 condition than complete and instantaneous drainage.
24 JUDGE TRIKOUROS: Right, but is that -- so 25 let me understand, that is not included in what the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
. )) o 234-4433 WASHINGTON, D.C. 20005 (202) 234- 3 1
463 1 quote unquote correct value for what the condition 2 failure probability is? In other words, if the 3 condition failure probability were one, that would 4 encompass what you're saying now, right?
5 MS. CURRAN: Yes, I think so. You know, 6 maybe I should have had Dr. Thompson on the phone to 7 answer with technical precision, but you know, in 8 essence, yes.
9 JUDGE TRIKOUROS: Okay.
10 MS. CURRAN: Whether he says it's one or 11 something, close to one, that's slightly off one, but 12 it's certainly approaching one.
13 JUDGE TRIKOUROS: And if it were not one, 14 it would cover all possibilities. All right --
15 MS. CURRAN: I'm not sure I understand --
16 yes, well, there are also -- all possibilities?
17 JUDGE TRIKOUROS: What I mean is that in 18 the -- if the conditional probability of observed fire 19 were one, given an uncovery, then really whether it's 20 partial uncovery or a total uncovery or anything in 21 between, there's -- there would be a zirc. fire. So 22 I just want to make sure we're on the same page with 23 that.
24 MS. CURRAN: Yes. I think that what NUREG 25 1738 said was that the NRC had not done enough NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(202) 234-4433 WASHINGTON, D.C. 20005 (202) 234-4r433
464 1 technical work to say with confidence that it wasn't 2 one.
3 JUDGE TRIKOUROS: Right.
4 MS. CURRAN: That's a little different.
5 JUDGE TRIKOUROS: Right, I understand. So 6 however, if one assumes a value of one, then the 7 conclusion of -- with respect to say the category one 8 status of on-site spent fuel storage would rest with 9 the determination of the probability of the fuel 10 uncovery.
11 That's really where I want -- and I think 12 that's kind of a given, but I just want to make sure 13 that we're on the same page.
14 MS. CURRAN: I guess I'm not sure what the 15 connection is. Category one is a category that rests 16 on the conclusion that there's no significant impact.
17 And so the category one finding depends on the 18 conclusion that if there is uncovery of the fuel, it's 19 that there is not a significant risk of a fire.
20 Is that --
21 So we are questioning the category one 22 finding because we think there is significant evidence 23 that that's wrong. And it's new evidence that has not 24 been addressed in a previous EIS.
25 JUDGE TRIKOUROS: Okay, I really I don't NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(202)
- ° 234-4433 WASHINGTON, D.C. 20005 (202) 234-4t433
465 1 want to get into a long discussion on this, but I 2 think that the probability of the uncovery is somewhat 3 important in this whole determination.
4 MS. CURRAN: Well, yes, that's true. And 5 one part of our contention is the part that there's an 6 analysis that reactor accidents that are considered 7 within the realm of what should be analyzed in an EIS 8 could cause uncovery of the fuel.
9 JUDGE TRIKOUROS: Right. Okay. Let's 10 just move on then.
11 I only had one other area that I just 12 wanted to get confirmed.
13 MS. CURRAN: This is Ms. Curran.
14 JUDGE TRIKOUROS: By the way, if anyone 15 has a -- wants to chime in here, feel free to do that.
16 The next area that I wanted to just 17 confirm was that if one looks at all of the events 18 that were assumed, that might lead to an uncovery of 19 the fuel, the argument that's being made by the 20 Massachusetts Attorney General is that there's one 21 event, if you will, or class of events, that was not 22 considered, namely, the conditional probability of a 23 zirc. fire given a reactor severe accident. Is that 24 correct?
25 MS. CURRAN: Well, okay, neither the NRC NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(202) 234-4433 WASHINGTON, D.C. 20005 (202) 234-4433
466 1 hasn't looked in an EIS, hasn't looked at the 2 conditional probability of a zirc. fire and also 3 hasn't looked -- because the NRC has in various 4 studies concluded that that is not a significant risk.
5 The NRC hasn't looked at overall accident sequences 6 that could lead to a fire because they basically, in 7 a nutshell, said this really isn't going to happen.
8 So we don't need to do the big analysis, the kind of 9 analysis that say the NRC do a NUREG 1150 for reactor 10 accidents.
11 We don't need to do that for pool 12 accidents because if the fuel is uncovered, it's 13 probably not going to burn.
14 I mean that's an oversimplification, but 15 that's what's happened.
16 JUDGE TRIKOUROS: All right.
17 MS. LAMPERT: May I say something from 18 Pilgrim Watch that also not looked at in the previous 19 studies were in the new information that was mentioned 20 in the Attorney General's brief was the consideration 21 of acts of malice and also the interplay between the 22 reactor and the spent fuel pool which is particularly 23 important for both Vermont and Pilgrim because the 24 spent fuel pool is located in the main building, in 25 the attic, if you will. And both of those two factors NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(202) 234-4433 WASHINGTON, D.C. 20005 (202) 234-'4433
467 1 were not looked at in the study that the EIS relied 2 upon.
3 MR. GAUKLER: Your Honor, Paul Gaukler.
4 I'd like to make the point that NUREG 1353 and 1738 5 looked at the wide range of .circumstances of events 6 that could cause a spent fuel pool fire including 7 drain down, etcetera.
8 The only thing not explicitly considered 9 was the potential for a severe accident, reactor 10 accident to cause a severe drain down and as we 11 pointed out that was -- even if you want to assume 12 that probability as following the Harris case, it 13 would be very small and as set forth in the Harris 14 case, the likelihood of a loss of cooling, even if you 15 have a severe reactor accident is very small.
16 So therefore, basically the same 17 probabilities that are set forth in NUREG 1353 and 18 1738 would apply, even under those circumstances.
19 MS. CURRAN: This is Diane Curran. I'd 20 just like to add something to that, because I think it 21 illustrates earlier I was saying that the -- that one 22 of the pieces of new information was that partial 23 drying down is a more severe case than instantaneous 24 drain down and Judge Trikouros asked isn't that just 25 a part of the ultimate conclusion that the probability NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(202) 234-4433 WASHINGTON, D.C. 20005 (202)
. . 234-4433
468 1 of a fire was .25.
2 But I think what Mr. Gaukler is saying, 3 Judge, to this other point that I wanted to make which 4 is that if you start out with the assumption that the 5 most -- the thing you have to worry about is total and 6 complete -- total and instantaneous drainage of the 7 pool, then what the analyst is going to look at is 8 very severe accidents that could cause that.
9 The analyst isn't going to look at 10 accidents that are less severe and may be more 11 probable, but that would only cause partial drainage.
12 So that is a separate and independent problem with the 13 analysis.
14 When you say okay, the worst thing that 15 could happen to this pool is a very severe earthquake 16 that would rupture the pool and cause it to drain 17 immediately, and that's such a low probability, we 18 don't need to worry about it. What the analysts would 19 be overlooking is all the accidents that might lead to 20 cracking of the pool which might be more probable 21 accidents.
22 JUDGE TRIKOUROS: Okay.
23 MR. GAUKLER: I would make the point, Your 24 Honor, as we set forth in our pleadings at length that 25 1353 does consider partial drainage and that's clear NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(202) 234-4433 WASHINGTON, D.C. 20005 (202) 234-4433
469 1 from when they talk about the loss of cooling and 2 makeup in NUREG 1353. And with respect to the case 3 law that we've got, Your Honor, you are certainly free 4 to go look at those NUREGs and make the determination 5 yourself whether you believe that the NUREGs support 6 the Attorney General's contention.
7 COURT REPORTER: I'm sorry. Who was that 8 just speaking?
9 MR. GAUKLER: Paul Gaukler. Sorry.
10 MS. UTTAL: This is Susan Uttal. I just 11 wanted to point out one thing about the Harris case 12 and the holding letting the contention in. The 13 Intervenors were required to come up with a specific 14 scenario that lead to the spent fuel fire. The 15 specific reason why, what kind of accident there was 16 in the reactor and the specific steps about how it 17 occurred.
18 So even to me everything else, they 19 haven't come up with a specific scenario and the 20 contention is not admissible for that point.
21 JUDGE YOUNG: Let me just clarify 22 something before we move on. You said that the 23 interveners were required to come up with a scenario.
24 Are you saying that at some point in the process that 25 requirement was imposed or that the ruling encompassed NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(20r2) 234-4433 WASHINGTON. D.C. 20005 (202) 234-i (2 *-i
470 1 a determination that their original contention had to 2 include that?
3 MS. UTTAL: I believe that the ruling of 4 the Board regarding the admission of the contention, 5 not the final decision, talked about the fact that 6 they needed a specific scenario leading up to the 7 uncovering of the fuel in the fire. I think that is 8 borne out by the Vermont Yankee case that preceded it, 9 I think in the early 1990s.
10 MS. CURRAN: I'm sorry. Were you 11 finished, Susan?
12 MS. UTTAL: Yes, I'm finished.
13 MS. CURRAN: Judge Young, this is Diane 14 Curran. First of all, we do not think that to get 15 admission of a contention one needs to present 16 scenarios. But in any event, we did. It's just not 17 correct to say that they we didn't provide a scenario.
18 We did provide a scenario for illustrative purposes.
19 The goal is to get a comprehensive analysis of the 20 potential for a fuel pool fire including various 21 causes such as severe accidents in the reactor, 22 intentional attacks, accidents involving just the 23 pool. But we did provide a sample, an example 24 scenario. It's discussed in Dr. Thompson's report, so 25 whether you know the fact is that if there is such a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(202) 234-4433 WASHINGTON, D.C. 20005 (202) 234-4433
471 1 requirement, we did satisfy it.
2 MS. LAMPERT: And so did Pilgrim Watch.
3 JUDGE YOUNG: Okay, I do have one question 4 and want to sort of switch gears here for a minute.
5 This is Judge Young and my question will probably 6 reflect the difference in our questions will probably 7 reflect the technical judge versus legal judge 8 background.
9 And I want to sort of preface my questions 10 by speaking to an issue that seems to relate to 11 various, the various sort of sub-issues involved in 12 these contentions, one being whether an issue can be 13 raised at the contention of admissability stage where 14 in this, with these facts, without petitioning for a 15 waiver or requesting a waiver or petitioning for 16 rulemaking.
17 And then there's the interpretation of the 18 new and significant, or the definition of that in the 19 Reg Guide which refers to codification of issues.
20 And then third, there is the issue of the 21 SAMAs and whether the rule on spent fuel pools, or 22 storage of spent fuel and how that rule interacts with 23 the rule on severe accidents and some SAMAs.
24 And I think in a way what we've got with 25 all three of those situations is we've got rules that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(202) 234-4433 WASHINGTON, D.C. 20005 (202) 2344 4433
472 1 say, that contain certain words and then there are 2 additional documents including case law and various 3 guidance documents that have been posed or that 4 provide what could be argued to be additional 5 interpretations of what the actual rule means.
6 I guess that was, well that was part of 7 the question I had on the part of the Reg Guide 8 definition that referred to codification. In other 9 words, we looked at the words of the rule. But my 10 question has to do with the first issue which is 11 whether issues can be litigated that would call into 12 question category one subject based on asserted new 13 and significant information.
14 And my question is this: on page five of 15 Entergy's brief, Entergy refers to the SECY paper and 16 the statement near the bottom of that page that says 17 "litigation of environmental issues in a hearing will 18 be limited to unbounded category 2 and category 3 19 issues, now combined as category 2 issues unless the 20 rule is suspended or waived."
21 Now, I don't find that language in the 22 final Statement of Considerations and rule in the 23 Federal Register, Sixth Volume 61. And I don't find 24 it in the actual language. But I think as Entergy 25 pointed out, the Commission approved that SECY NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
D2)2344433 (2c WASHINGTON, D.C. 20005 (202)
- o 2344 433
473 1 document and that would be the kind of guidance 2 document that could be looked to for some guidance on 3 how a rule might be interpreted, for example.
4 In addition, in the Turkey Point case, the 5 Commission discussed the need to request a waiver or 6 more generally for more generic issues to petition for 7 rulemaking. I also think there's some reference and 8 I don't, I'm sorry I don't have it right in front of 9 me. But there's some reference in one of these 10 documents that seems to suggest that a rulemaking 11 could cover -- actually, it may be in 61 Federal 12 Register.
13 Yes, it is. It is on page 28, 470 under 14 subsection A, about halfway down. It is talking about 15 the changes, the major changes adopted as a result of 16 the discussion with the CEQ. Under Section A, 17 subsection A it says NRC's response to a comment 18 regarding the applicability, the analysis of an impact 19 caused by in the rule, to the plant in question may be 20 a statement and explanation of its view that the 21 analysis is adequate including, if applicable, 22 consideration of the significance of new information.
23 It goes on to say if commenter is 24 dissatisfied with such a response may file a petition 25 for rulemaking under 10 CFR 2802. If the commenter is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(202) 234-4433 WASHINGTON, D.C. 20005 (202) 234-41433
474 1 successful in persuading the Commission that the new 2 information the new information does indicate that the 3 analysis of an impact codified in the rule is 4 incorrect in significant respect, and then there's the 5 parenthesis, either in general or with respect to the 6 particular plant, a rulemaking proceeding will be 7 initiated.
8 Okay, that is a long preface to the 9 question. Here's the question and it is for you, Ms.
10 Curran, and anyone else who wants to add anything 11 after she speaks.
12 In light of the information in the longer 13 SECY document now provided by Entergy Counsel --
14 MS. CURRAN: Are you referring to SECY 93-15 032?
16 JUDGE YOUNG: Right, because the reference 17 to litigation in a hearing will be limited to the 18 category 2 and 3 issues unless the rule is suspended 19 or waived. I don't think we had that when we were in 20 oral argument before and I didn't find, and tell me if 21 I'm wrong, reference to that in your reply brief. So 22 can you address that in terms of what we should do 23 with that, how we should consider that?
24 MS. CURRAN: Yes, and we did address it in 25 our reply brief and we addressed it in the oral NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(202) 234-4433 WASHINGTON, D.C. 20005 (202) 2344 433
475 1 argument on September 6th. And I'm sorry I don't have 2 the page numbers handy, but I'd just like to point out 3 a couple of things and just ask the Board to go back 4 and look at our reply, look at the discussion in the 5 transcript of the argument.
6 JUDGE YOUNG: Let me ask --
7 MS. CURRAN: This was the reply on the 8 contention, the admissability of the contention.
9 JUDGE YOUNG: Okay, well let me clarify a 10 little bit then. You gave some regulatory history 11 which was actually I don't think I had heard that 12 before and it is very persuasive in some ways. But 13 what I don't think we had is the quotation that Entergy provided on page five of the more recent, the
,low"14 15 July 21st brief.
16 Now maybe I missed that. I know when we 17 tried to find 93-32, the SECY document, first we found 18 a one page document, or a two page, and then we 19 subsequently found the I guess 23-page document. And 20 I know you had argued at oral argument that those were 21 proposals of the staff and that the final rulemaking 22 didn't include those.
23 And I think at oral argument, Entergy 24 counsel had said well, that the Commission had 25 approved the SECY document and so that represented the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(202) 234-4433 WASHINGTON, D.C. 20005 (202) 234-4433
476 1 Commission's actual statement.
2 Now maybe we went over this and maybe just 3 the fact that I had not at the point seen the longer 4 SECY document approved by the Commission. But I guess 5 to sort of focus the question a little bit, even 6 though, I mean obviously it's better if rules contain 7 all requirements and give notice to the public in that 8 way and that sort of more clear way about what the 9 standards are going to be with regard to any subject.
10 But as it was argued by Entergy at the 11 oral argument, agencies can regulate through 12 adjudication, so to speak. And the quotation provided 13 on page 5 of the July 21st Entergy brief is something 14 that I had at least had not focused on when we were 15 together before.
16 So I guess what I would ask you to do is 17 address how you would have us overlook the 18 Commission's statement in Turkey Point on this and 19 this quotation on page five of the brief.
20 MS. CURRAN: Okay. First of all, I think 21 it is important that SECY 93-032 is discussed in the 22 final rule. The SECY paper was written in 1993 and it 23 may have been approved by the Commission, but it was 24 apparently circulated to these other agencies and that 25 if you look at page 28470 in the preamble to the final NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(202) 234-4433 WASHINGTON, D.C. 20005 (202) 234-44433
477 1 rule, which is dated 1996, June 5, 1996, the 2 Commission talks about SECY 93-032 and how they have 3 gone further.
4 They have, in a sense, reconsidered it.
5 And so I think what's really important is to look at 6 the preamble to the final rule. And in that the 7 Commission talks about its requirement that license 8 renewal applicants address if there is new information 9 about category 1 impacts, that they have that new 10 information has to be addressed in the ER. And we 11 quote that language on page seven in our reply.
12 JUDGE YOUNG: Let me see if I can just 13 sort of focus this a little bit further along. You do 14 that and that is definitely persuasive on the issue of 15 the responsibility of the applicant. What I'm not 16 finding in the 1996 Federal Register final rule, or 17 the preface to that, the Statement of Considerations, 18 is much of anything with regard to adjudication.
19 MS. CURRAN: Right, and I agree with that, 20 Judge Young.
21 You know, our situation, the Attorney 22 General situation is that we are coming into a 23 proceeding where it is -- our guide has to be the 24 NRC's admissability regulation in 2.309F2. And so if 25 you were -- it really -- what we need is we need to be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(202) 234-4433 WASHINGTON, D.C. 20005 (202) 234-4433
478 1 able to raise this issue before the NRC.
2 Whether it belongs before the Licensing 3 Board or the Commission is not 100 percent clear. But 4 we know that under NEPA we're entitled to raise it.
5 You may rule that is not the appropriate for us to be.
6 We think we had to file a contention before you that 7 we had no other choice under 2.309F2. If we had not, 8 we would have risked being told that you have not 9 satisfied the regulations for raising your concern and 10 you have missed your chance.
11 Our main concern is getting this issue 12 before the Agency in a timely way using the best 13 possible interpretation we can make of these 14 regulations. I agree with you that there isn't a 15 statement in the 1996 preamble that says Category 1 16 issues are subject to a hearing. But it certainly is 17 clear from our perspective that if we want to 18 challenge any NEPA issue, if we want to raise any NEPA 19 issue in a license renewal case, there's only one door 20 and that is to challenge the Environmental Report with 21 a contention. That's what we've done.
22 Now because it is a category 1 issue, you 23 may say I think -- I think you have a basis to rule 24 that the contention is admissible. But I think it is 25 not 100 percent crystal clear. What is really NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(202) 234-4433 WASHINGTON, D.C. 20005 (202) 234-44433
479 1 important to us is to get the issue before the Agency 2 in an appropriate and proper way. What we want is a 3 ruling from you that we have done what we needed to do 4 to raise this issue, that we gave a reasonable 5 interpretation, used a reasonable interpretation of 6 the Agency's regulations and that we have preserved 7 our concern.
8 MR. BROCK: This is Matt Brock of Mass.
9 AG. I'd just like to add to that. We do not think 10 that we should have additional burdens put on us to 11 get this issue before the Agency. We have in our 12 filings indicated why we think we meet the contention 13 standard for issues to address the Pilgrim Plant.
14 And whether or not this issue, the Agency 15 determines this is "generic", applying to all plants.
16 I'm looking at the quote in Entergy's filing on page 17 five. It says "Petitioners with evidence that a 18 generic finding is incorrect for all plants may 19 petition the Commission".
20 We don't assume that burden nor do we 21 think it is fair to put it on us whether the issues we 22 are raising apply to "all plants or not". It applies 23 to Pilgrim. We raised it. We think we meet the 24 contention standard and we think it ought to be 25 admitted on that basis.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(2002)234-4433 WASHINGTON, D.C. 20005 (202) 2344 433
480 1 JUDGE YOUNG: Let me just follow up with 2 one more question on this. Let's assume that for 3 argument's sake that you meet the contention 4 admissability standard. Then you have the Turkey 5 Point case that says in addition to that, there's a 6 requirement I think it is fairly longstanding in NRC 7 law that you cannot challenge a rule. And the 8 argument that has been made by the Massachusetts's 9 Attorney General -- sort of essentially I'll 10 paraphrase it to the effect that the language at 11 5153C3iv, I think it is, sort of provides an exception 12 to the category 1 rule which sort of distinguishes 13 this situation from others, for example, that we're a 14 rule that doesn't contain sort of an exception, so to 15 speak, cannot be challenged.
16 MS. CURRAN: That is true, Judge Young.
17 It doesn't appear that Turkey Point interpreted that 18 regulation.
19 JUDGE YOUNG: But Turkey Point did talk 20 about the possibility of new and significant 21 information, I believe, and say that had to be raised 22 through a request for waiver or a petition for 23 rulemaking. And so we have the Commission's decision 24 in Turkey Point.
25 Given the assumptions that I have just NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(202) 234-4433 WASHINGTON, D.C. 20005 (202) 234-41433
481 1 stated, what is your argument on how we should 2 interpret and apply the Commission's Turkey Point 3 decision.
4 MS. CURRAN: Well, as I said earlier, the 5 Turkey Point decision did not interpret 10 CFR 6 51.53c3iv. And so therefore we're asking the Board to 7 rule on the admissability of our contention under that 8 standard.
9 I had mentioned earlier that the Attorney 10 General is planning to file a rulemaking petition, but 11 Mr. Brock is right that we don't think we should have 12 to do that. We think we have met the admissability 13 standard and that our contention should be admitted.
14 We're only doing it out of caution.
15 JUDGE YOUNG: Okay. Does anyone have 16 anything to add on that sort of line of thought?
17 MS. HOLLIS: Your Honor, this is Sheila 18 Hollis on behalf of Plymouth. Just sort of 19 observationally here, it seems like if the issue is a 20 legitimate issue that should be considered by the NRC 21 whether in an individual plant setting or in a group 22 of plants having similar characteristics for every 23 plant in the country, however it gets to the NRC and 24 however it is considered whether before the Licensing 25 Board or by referral from the Licensing Board to the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(202) 234-4433 WASHINGTON, D.C. 20005 (202) 234-4433
482 1 Commission or by the Commission in response to a 2 rulemaking or on its own volition.
3 It seems like it is a significant enough 4 issue that at some place in the very sophisticated 5 arena of the NRC's technical capabilities, legal 6 capabilities, that it is an issue that should be 7 analyzed and understood before outright dismissal by 8 the NRC.
9 I think that is our plea although we are 10 not interveners in this case, just as an entity that 11 is affected very directly by the existence of a 12 nuclear plant in the confines of the town would seem 13 just like logically that would make sense. I think 14 Ms. Curran has identified whether it should be handled 15 here in this context or in a broader context. In any 16 event, it needs to be handled.
17 MS. CURRAN: Judge Young, I would like to 18 maybe help offer something that might help. Whatever 19 you -- you can sort of separate this into two issues.
20 One is has the Attorney General filed an admissible 21 contention under the standard in 2.309f2. And the 22 other is what is the appropriate procedural way to 23 resolve the Attorney General's concerns ultimately.
24 It's important to us, we think it is essential that 25 the Board rule on the admissability of the contention NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(2O)) 234-4433 WASHINGTON, D.C. 20005 (202)° 2344
483 1 because that is legally the way that petitioners are 2 required to raise their issues before the Commission.
3 If the Commission decides that this is not 4 an issue that should be before the Licensing Board, 5 that is a different question. But we are asking the 6 Board to make a ruling on the admissability of our 7 contention.
8 MS. UTTAL: Judge, can I say a few things?
9 This is Susan Uttal.
10 JUDGE YOUNG: Go ahead.
11 MS. UTTAL: I don't think that the 12 Commission could have been clearer either in the rule 13 or in the Federal Register notice cited or in Turkey 14 Point that the issues being raised by the 15 Massachusetts Attorney General are not permitted to be 16 raised in a hearing and without a waiver. To say that 17 they didn't consider the regulation as cited by Ms.
18 Curran would just obviate everything in the rulemaking 19 and in Turkey Point because they're saying that if 20 there is new and significant information that an 21 intervener seeks to raise, they must bring it before 22 the Commission either as a waiver or a rulemaking.
23 I don't know how else they could clearer.
24 And regarding what has to be decided in this case, I 25 don't think the Board can get around the fact that the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(202) 234-4433 WASHINGTON, D.C. 20005 (202) 234- H33
484 1 information, the issues being raised are not 2 appropriately brought before this Board. Therefore, 3 it must be, the contention must be dismissed. There 4 is absolutely not reason to rule on its admissability 5 because on its face it should not be here.
6 MS. CURRAN: This is Diane Curran. You 7 know, the citations that the Staff and Entergy give to 8 the idea that we're not allowed to raise our 9 contention under 5153c34 are all statements from SECY 10 papers. There's statements in preambles to rules or 11 in the EIS that are not put into regulations. It 12 seems to us that our first obligation is to comply 13 with the regulations and that suggestions in SECY 14 papers are really trumped by the regulations 15 themselves.
16 MS. UTTAL: But the rule itself in 17 Appendix B and in the rule states that Category 1 18 issues are not appropriate for a hearing and that a 19 waiver has to be fought. So it is in the ruling.
20 MS. CURRAN: But in the rule there is also 21 a way to consider new and significant information 22 which is a very important requirement.
23 MS. UTTAL: New and significant 24 information -- excuse me. It is in the explanation.
25 It is written the Commission's hands that you have to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE. N.W.
(202) 234-4433 WASHINGTON. D.C. 20005 (202) 234-4$433
485 1 go before the Commission.
2 MR. GAUKLER: Judge Young, Paul Gaukler 3 here. I just would like to make a couple points.
4 First, it is clearly a rule that the Massachusetts 5 Attorney General is challenging in terms of that 6 Category 1 issues are not to be litigated in NRC 7 proceedings.
8 Furthermore, the process by which the 9 Attorney General or anyone could bring this issue 10 forward is set forth both in the SECY paper and in the 11 Statement of Considerations of the rule, the portion 12 of the Statement of Considerations that you 13 identified, specifically discussed one type of 14 situation where a commenter raises an issue and it 15 sets forth the other process that if the commenter 16 doesn't link the way the NRC staff resolves it, then 17 it goes to the Commission by waiver or by petition for 18 rulemaking.
19 MS. UTTAL: Let me interrupt you.
20 MR. GAUKLER: And as we set forth in our 21 brief, the process, the standard process for treating 22 the EIS, etc. is the same and must be applied in the 23 adjudicatory proceeding.
24 MS. UTTAL: One more thing, Judge. If 25 there was any question about it, it was all put to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(202) 234-4433 WASHINGTON, D.C. 20005 (202) 234-4 433
486 1 rest Turkey Point, where the Commission was specific 2 that the issues have to raised before them.
3 MS. CURRAN: Judge Young, I just wanted to 4 point out -- this is Diane Curran.
5 JUDGE YOUNG: Hold on for just a second.
6 If I could just clarify before we move on. Ms. Uttal 7 referred to something in the rule and then Mr. Gaukler 8 referred to something in the Statement of 9 Considerations and I want to make sure that I 10 understand what you're referring to.
11 Ms. Uttal, when you said that there was a 12 place in the rule that said that the hearing -- that 13 in a hearing you couldn't consider --
14 MS. UTTAL: Judge, I misspoke. I meant to 15 say in the Statement of Considerations. What it is in 16 the rule is that Category 1 issues are not to be dealt 17 with in the EIS.
18 JUDGE YOUNG: You're talking about the 19 part that says "No such consideration is required for 20 Category 1 issues in appendix B to subpart A of this 21 part under C33".
22 Is that what you're talking about?
23 MS. UTTAL: Yes, I believe so.
24 JUDGE YOUNG: Okay, and then the next 25 question was and I'll go ahead and address it to you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(202)
. o 234-4433 WASHINGTON, D.C. 20005 (202) 234-44433
487 1 since you just now said it was in the Statement of 2 Considerations was what you and Mr. Gaukler are 3 referring to there -- the reason I'm asking is because 4 I think what Mr. Gaukler may have been saying is that 5 all the discussion about what happens in the EIS 6 process should be applied to the hearing process 7 procedurally, that the same procedure is followed 8 which I guess my only question there is that in the 9 SECY paper, and I think there was also an earlier 10 transcript of a meeting with the Commission and its 11 lawyer at the time in which the Commission asked 12 "Well, what happens with regard to hearings". And 13 then the SECY paper makes a specific reference to 14 hearings and the Statement of Considerations doesn't 15 seem to make a specific reference to hearings unless 16 I'm missing something.
17 What I want to hear from you is am I 18 missing something? Is there a specific reference that 19 I'm not finding and, if so, can you point me to the 20 place?
21 MR. GAUKLER: Judge Young, I will speak 22 for myself. Paul Gaukler here. I was referring to 23 the points that you make on page five of the brief 24 where specifically we refer to I believe the same 25 portion of the Statement of Considerations that you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
. 02)o 234-4433 WASHINGTON, D.C. 20005 (202) 234-
488 1 just read us in terms of what a petitioner, or 2 commenter, must do with respect to a comment that 3 provides new and significant information.
4 JUDGE YOUNG: Okay, so what page? On page 5 28470, there's reference to commenters in the EIS 6 process. What I'm trying to find is are you saying 7 that there's some specific reference to the 8 adjudication hearing context in the Statement of 9 Considerations? If there is, I'd appreciate being 10 pointed to it.
11 MR. GAUKLER: I'm not saying that, Your 12 Honor. What I'm saying is they set forth clearly the 13 process for EIS and as set forth in the case law we 14 cite in our brief the same process must be applied to 15 the adjudicatory process.
16 JUDGE YOUNG: And Ms. Uttal, are you 17 finding something there that I missed?
18 MS. UTTAL: No, I'm reading through the 19 Statement of Considerations now. But I think that the 20 question -- I have a discussion of it in my initial 21 response and I believe that if you look at the 22 Statement of Considerations and what was said in 23 Turkey Point, it's clear that the same process that is 24 laid out in the Statement of Considerations is 25 applicable to the hearing process as Mr. Gaukler just NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(202) 234-4433 WASHINGTON, D.C. 20005 (202) 234-4433
489 1 pointed out.
2 JUDGE YOUNG: Do you know, you may not 3 know, but do you know why the more specific reference 4 to hearings was not included in the Statement of 5 Considerations and how we should interpret that?
6 MS. UTTAL: I do not know why it was not 7 included, but it was certainly made clear in Turkey 8 Point by the Commission.
9 JUDGE YOUNG: Okay. Anything else on this 10 issue? We appreciate your filing these additional 11 briefs and being available this morning to answer our 12 questions. We have one final thing, or Judge 13 Trikouros has one final thing, a statement that he 14 would like to make before we adjourn. Am I cutting 15 anybody off? Okay, go ahead.
16 JUDGE TRIKOUROS: Yes, I would like to 17 read a disclosure statement into the record. I'm 18 doing this --
19 MS. LAMPERT: Who is speaking, please?
20 JUDGE TRIKOUROS: This is Judge Trikouros.
21 MS. LAMPERT: Thank you.
22 JUDGE TRIKOUROS: I would like to read the 23 disclosure statement into the record and the reason 24 I'm doing this is because specifically because both 25 the Massachusetts Attorney General and Pilgrim Watch NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
234-4433 WASHINGTON. D.C. 20005 (202) 234- 4433
490 1 reference the National Academy of Sciences report.
2 And in my career, I've had an intersection with that 3 report and I wrote this statement with regard to that.
4 So I'll just proceed to read it.
5 The disclosure statement of Judge Nicholas 6 Trikouros regarding the Pilgrim License Renewal 7 Application. I'm placing this in the record of 8 Pilgrim Boiling Water License Renewal Proceeding in 9 order to provide full disclosure of certain 10 information that may be perceived to be a conflict of 11 interest in this proceeding.
12 Early in 2004, Panlyon Technologies of 13 which I was a principal, was commissioned by Entergy 14 Northeast to provide best estimates separate effects 15 of valuation of the time available for recovery action 16 given the loss of coolant from potential malicious 17 acts in an Entergy-owned pressurized water spent fuel 18 pool.
19 Scenarios considered included various 20 degrees of partial uncovery of spent fuel as well as 21 complete drainage of the pool. While I was not the 22 principal investigator, I did provide a management 23 overview of the project and was consulted regarding 24 modeling assumptions and the viability of the results 25 as they progressed. Work was completed in 2005.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(202) 234-4433 WASHINGTON, D.C. 20005 (202) 234-4433
491 1 Entergy provided preliminary results from 2 this work in a presentation to the National Academy of 3 Sciences in Washington, D.C. on May 10, 2004, in which 4 I participated as one of several presenters. I have 5 had no other communications with the National Academy 6 prior to or since that day.
7 As it turned out, statements regarding 8 these presentations were included in support of the 9 findings in Section 3 of the subsequent NAS report 10 entitled "Safety and Security of Commercial Spent 11 Nuclear Fuel Storage: Public Report" which has been 12 referenced in the contentions of the Massachusetts 13 Attorney General and Pilgrim Watch in this case.
14 I've evaluated the impact of my 15 involvement in the technical effort described above 16 and I have concluded that a reasonable person knowing 17 all of the relevant facts and circumstances about my 18 work for Entergy would have no reasonable basis to 19 question my impartiality in this case.
20 The work was not associated with the 21 Pilgrim Nuclear Plant nor with any other boiling water 22 reactor. The study was performed in an independent 23 manner using a commonly accepted methodology. We had 24 complete freedom to choose the methodology, the 25 modeling inputs, and the analysis assumptions. At NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(202) 234-4433 WASHINGTON, D.C. 20005 (202) 234-4,433
492 1 Entergy's request, the final documentation of this 2 work was provided to the NRC staff.
3 This was just one of many technical tasks 4 regarding spent fuel pool pooling that I have been 5 associated with throughout my career. The background 6 understanding that brings my current adjudicatory role 7 was generated in part by carrying out consulting work 8 for more than a dozen clients in the nuclear industry, 9 including Entergy.
10 This work put me in a better position to 11 fulfill one of the responsibilities as a Licensing 12 Board Judge, i.e. to review and to question the 13 material presented from a knowledgeable, technical 14 perspective. The above circumstances will not affect 15 my impartiality or independence of judgement in this 16 case, but I have concluded that disclosure was 17 necessary to avoid the possibility of any 18 misunderstanding or misperception.
19 JUDGE YOUNG: All right.
20 MS. CURRAN: May I ask a question? This 21 is Diane Curran. Judge Trikouros, are you going to 22 send that statement out to the parties? I would 23 appreciate it because I don't know when the transcript 24 is going to be available.
25 JUDGE TRIKOUROS: Sure, I have no problem NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(202) 234-4433 WASHINGTON, D.C. 20005 (202) 234-4433
493 1 with it.
2 MS. CURRAN: Thank you.
3 JUDGE YOUNG: Okay. If there is nothing 4 else, again we appreciate you making yourselves 5 available today and we'll be issuing a decision 6 containing our ruling as soon as possible and is there 7 anything else? Thank you, I think that concludes this 8 conference unless anyone else has anything else?
9 Thank you very much.
10 (Whereupon, at 10:58 a.m., the 11 teleconference was concluded.)
12 13 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
120) 234-4433 WASHINGTON. D.C. 20005 (202) 234- t433
CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission in the matter of:
Name of Proceeding: Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc.
Oral Arguments Docket Number: 50-293-LR and ASLBP No.06-848-02-LR Location: via 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 by me and, thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript is a true and accurate record of the foregoing proceedings.
Eric Hendrixson Official Reporter Neal R. Gross & Co., Inc.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com