ML080720442
| ML080720442 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 03/10/2008 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 50-247-LR, 50-286-LR, ASLB 07-858-03-LR-BD-01, RAS E-13 | |
| Download: ML080720442 (285) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Entergy Nuclear Indian Point Units 2 & 3 Docket Number: 50-247-LR & 50-286-LR ASLBP No.: 07-858-03-LR-BD01 Location: White Plains, New York Date: Monday, March 10, 2008 Work Order No.: NRC-2070 Pages 1-246 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433
1 1 UNITED STATES OF AMERICA DOCKETED 03/14/08 2 + + + + +
3 NUCLEAR REGULATORY COMMISSION 4 + + + + +
5 ATOMIC SAFETY AND LICENSING BOARD PANEL 6 444444444444444444444444444447 7 In the Matter of: 5 8 ENTERGY NUCLEAR OPERATIONS, 5 Docket No. 50-247-LR 9 INC. (Indian Point Nuclear 5 and 50-286-LR 10 Generating Units 2 & 3) 5 ASLBP No.
11 5 07-858-03-LR-BD01 12 444444444444444444444444444448 13 Richard A. Daronco Courthouse 14 Courtroom 200 15 111 Dr. Martin Luther King Boulevard 16 White Plains, New York 17 Monday, March 10, 2008 18 19 The above-entitled conference was 20 convened, pursuant to notice, at 10:00 a.m.
21 22 BEFORE:
23 LAWRENCE G. McDADE, Administrative Law Judge, Chair 24 KAYE D. LATHROP, Ph.D., Administrative Judge 25 RICHARD E. WARDWELL, Ph.D., Administrative Judge NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
2 1 APPEARANCES:
2 On Behalf of the Applicant:
3 KATHRYN M. SUTTON, Esquire; 4 PAUL BESSETTE, Esquire; and 5 MARTIN J. O'NEILL, Esquire 6 of: Morgan, Lewis & Bockius, LLP 7 1111 Pennsylvania Avenue, N.W.
8 Washington, D.C. 20004 9 (202) 739-5738 (Sutton) 10 (202) 739-5796 (Bessette) 11 (202) 739-5733 (O'Neill) 12 FAX (202) 739-3001 13 ksutton@morganlewis.com 14 pbessette@morganlewis.com 15 martin.oneill@morganlewis.com 16 17 ELISE N. ZOLI, Esquire; and 18 ROBERT H. FITZGERALD, Esquire 19 of: Goodwin Procter, LLP 20 Exchange Place 21 53 State Street 22 Boston, Massachusetts 02109 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
3 1 APPEARANCES (Continued):
2 On Behalf of the Nuclear Regulatory Commission:
3 SHERWIN E. TURK, Esquire; 4 BETH N. MIZUNO, Esquire; 5 DAVID E. ROTH, Esquire; 6 KIMBERLY A. SEXTON, Esquire; and 7 CHRISTOPHER C. CHANDLER, Esquire 8 of: Office of the General Counsel 9 U.S. Nuclear Regulatory Commission 10 Mail Stop - O-15 D21 11 Washington, D.C. 20555-0001 12 On Behalf of the Intervenors:
13 Westchester County:
14 JUSTIN D. PRUYNE, Esquire 15 Assistant County Attorney 16 of: County of Westchester 17 148 Martine Avenue, 6th Floor 18 White Plains, New York 10601 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
4 1 APPEARANCES (Continued):
2 On Behalf of the Intervenors (Continued):
3 The State of New York:
4 JOHN J. SIPOS, Esquire, 5 Assistant Attorney General; and 6 MYLAN LEE DENERSTEIN, Esquire, 7 Executive Deputy Attorney General for 8 Social Justice 9 The Capitol 10 Albany, New York 12224-0341 11 JANICE A. DEAN, Esquire 12 Assistant Attorney General 13 of: Office of the Attorney General of the 14 State of New York 15 120 Broadway, 26th Floor 16 New York, New York 10271 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
5 1 On Behalf of the Intervenors (Continued):
2 The State of New York (Continued):
3 JOAN LEARY MATTHEWS, Esquire 4 Senior Counsel for Special Projects 5 of: Office of General Counsel 6 New York State Department of Environmental 7 Conservation 8 625 Broadway 9 Albany, New York 12224 10 (518) 402-9190 11 FAX (518) 402-9018 12 jlmatthe@gw.dec.state.ny.us 13 14 JOHN L. PARKER, Esquire 15 Regional Attorney 16 of: New York State Department of Environmental 17 Conservation 18 Region 3 Headquarters 19 21 South Putt Corners Road 20 New Paltz, New York 12561-1620 21 (845) 256-3037 22 FAX (845) 255-3042 23 jlparker@gw.dec.state.ny.us 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
6 1 I-N-D-E-X 2 ITEM PAGE 3 Westchester County:
4 Opening statement by Westchester County 13 5 Response by the applicant 16 6 State of New York:
7 Opening statement by State of New York 32 8 Response by the NRC staff 41 9 Response by the applicant 45 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
7 1 P-R-O-C-E-E-D-I-N-G-S 2 (10:03 a.m.)
3 CHAIRMAN McDADE: We are here in the 4 matter of Entergy Nuclear Operations, Inc., Indian 5 Point nuclear generating units 2 and 3, docket numbers 6 50-247-LR and 50-286-LR.
7 My name is Lawrence McDade. I am the 8 Chairman of this Atomic Safety Licensing Board panel.
9 With me on the panel are Judge Lathrop and Judge 10 Wardwell.
11 We are going to be having oral argument 12 today on the admissibility of contentions, 13 specifically this morning, with regard to Westchester 14 County and then the State of New York.
15 Let me explain very briefly the procedure 16 that we are going to use. As indicated in previous 17 orders, the intervenor will have an opportunity to 18 make an opening statement to speak generally with 19 regard to the contentions that they have submitted, 20 that the NRC staff and the applicant, Entergy, will 21 have an opportunity to briefly respond. We are then 22 going to be asking questions.
23 The procedure, we are going to be going 24 not to any particular party at this point, but we will 25 be asking some questions of the intervenor, following NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
8 1 those questions up with the staff, following them up 2 with the applicant.
3 So it isn't going to be a situation where 4 we are going to address all of the questions to the 5 intervenor, then all of our questions to the staff and 6 then to the applicant. We will be going back and 7 forth from one to the other.
8 Each of you is represented by a number of 9 people. What we are trying to do here today is to get 10 answers to our questions and to get the best answers 11 possible so that we better understand the positions of 12 each of the parties.
13 Therefore, when we pose a question to any 14 particular party here, we will allow you to choose who 15 is going to answer that question for you. And it may 16 be appropriate in certain instances where more than 17 one of the attorneys is going to respond for a 18 particular party in response to a particular question.
19 We would urge you to just simply sit at 20 the table and answer the questions. Many of these 21 questions may require you to refer to your notes. And 22 it will be easier if you are just sitting at the table 23 and have access to the notes.
24 We don't have a podium set up. It's not 25 necessary for you to come up to a podium. It's not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
9 1 going to be necessary for you to stand when answering 2 a question.
3 What we would ask you to do, at least 4 initially, in answering a question is to state your 5 name so that the Court Reporter has an opportunity to 6 attribute to the right person the statement that is 7 being made.
8 Before we begin with asking questions, 9 we're going to have you go through and identify 10 yourself for the record. I think at this point we 11 might as well go ahead and do that.
12 First of all, we have Westchester County.
13 Who is going to be representing Westchester County 14 here?
15 MR. PRUYNE: Good morning, Board members.
16 Justin Pruyne, Assistant County Attorney on behalf of 17 the Westchester County Attorney's Office for County 18 Executive Andrew J. Spano and the Westchester County 19 Board of Legislators.
20 CHAIRMAN McDADE: Are you going to be 21 answering all of the questions for Westchester, Mr.
22 Pruyne?
23 MR. PRUYNE: Yes, Your Honor.
24 CHAIRMAN McDADE: Okay. For the NRC 25 staff?
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
10 1 MR. TURK: Good morning, Your Honor. My 2 name is Sherwin Turk. I am an attorney with the 3 Office of the General Counsel. I would like to 4 introduce several people, maybe more than a few, who 5 are with me today. To my right is co-counsel Kimberly 6 Sexton. To her right is co-counsel David Roth. At 7 the table behind us is Christopher Chandler, 8 co-counsel; and Beth Mizuno, co-counsel.
9 We also have a paralegal with us: Brian 10 Newell. And I would also like to introduce some of 11 the technical staff who are here with us today and 12 perhaps ask them to stand just as I call their names.
13 First, Mr. Bo Pham is the project manager 14 for the license renewal application of Entergy for 15 Indian Points 2 and 3. Mr. John Boska is sitting 16 behind him. Mr. Boska is the project manager for 17 current operations of Indian Point units 2 and 3.
18 To the side of Mr. Boska is Mr. Glenn 19 Meyer, who is here on behalf of Region I, NRC located 20 in Pennsylvania. Next to him is Ms. Kimberly Green, 21 who heads up the safety review for the license renewal 22 application review for the NRC staff. And also Andrew 23 Stuyvenberg is with the NRC staff in Washington. He 24 heads up the environmental reviewing for us.
25 And, with that, I thank you very much for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
11 1 your listening to these lengthy introductions.
2 CHAIRMAN McDADE: Okay. Thank you, Mr.
3 Turk. The one thing I would ask, when we do get to 4 the next break, would you please just give a list of 5 those names to the Court Reporter so that he will have 6 the spelling of all the names of the people that you 7 just introduced?
8 MR. TURK: I've done that already.
9 CHAIRMAN McDADE: Okay. Thank you.
10 For Entergy?
11 MS. SUTTON: Yes. I am Kathy Sutton for 12 Morgan, Lewis and Bockius on behalf of the applicant.
13 I will ask my colleagues to introduce themselves.
14 MR. O'NEILL: I am Martin O'Neill, also 15 with Morgan-Lewis, representing Entergy.
16 MR. BESSETTE: Paul Bessette from 17 Morgan-Lewis, also representing Entergy.
18 MR. ZOLI: Elise Zoli from Goodwin 19 Procter, also representing Entergy on the aquatic 20 contentions.
21 MR. FITZGERALD: Robert Fitzgerald from 22 Goodwin Procter, also representing Entergy.
23 CHAIRMAN McDADE: Okay. Good morning.
24 Thank you.
25 Okay. We are at a point of starting with NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
12 1 Westchester County. Before we get into questions, 2 does Westchester have any opening statement?
3 MR. PRUYNE: Yes, Your Honor. Members of 4 the Board, on behalf of County Executive Spano and the 5 Westchester County Board of Legislators and the 6 residents of Westchester County, I would like to 7 welcome you all here today.
8 AUDIENCE MEMBER: We can't hear him.
9 CHAIRMAN McDADE: Okay. One of the things 10 that I think is going to be necessary, we have 11 individuals up here who are making presentations.
12 Those are the individuals who are going to be 13 speaking.
14 We are hopefully going to speak in a way 15 that can be heard by everybody. The acoustics here 16 are what the acoustics here are. The individuals who 17 are spectators are not participants and are not going 18 to be speaking during the course of the proceeding.
19 If you do speak during the course of the 20 proceeding, it will be necessary to ask you to leave 21 the proceeding. As I said, the acoustics here are 22 what the acoustics here are. It is important that we 23 hear what everybody says.
24 And to the degree that we can, if the 25 speaking is low, we will ask people to speak up. But NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
13 1 we cannot have individuals who are spectators to this 2 proceeding talking during the course of the 3 proceeding.
4 Okay, sir. Please proceed.
5 MR. PRUYNE: Thank you, Your Honor.
6 Members of the Board, as you know, 7 Westchester County has approximately one million 8 residents. And it's one of the most populous counties 9 in the State of New York.
10 The county is and has been opposed to the 11 relicensing of the Indian Point nuclear generating 12 facility for several years based upon our position 13 that it's poorly sited, that there are age management 14 issues, and that it is unsafe given today's realities.
15 As I said, the county is densely 16 populated. And this dense population, the topography 17 of the area, and the roadway system make a thorough 18 and timely evacuation difficult, if not impossible.
19 The county agrees with the State of New 20 York that this Board and the Commission --
21 AUDIENCE MEMBER: Your Honor, I'm not a 22 guest here. I'm representing me. And I can't hear a 23 word he said. Can't we get a microphone? The public, 24 without information, we are being denied. I am being 25 denied to be properly representing.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
14 1 Frankly, the public is being denied the 2 right to hear what is being said. The least we can do 3 is bring a microphone in so this gentleman can be 4 heard by all of us.
5 The press is here. Obviously they have a 6 right to be here. They have a job to do as well.
7 That's the least you can do. If they have a 8 microphone, that would help quite a bit.
9 CHAIRMAN McDADE: Let me make one thing 10 very clear, that the next time somebody from the 11 audience speaks out, we will ask the security people 12 to escort them from the facility, period. The next 13 time somebody in the audience speaks out, we will ask 14 them to be removed from the facility.
15 Two things. One, there is a transcript of 16 this proceeding being made. The transcript will be 17 available on the NRC Web site. I am sorry if you are 18 not able to hear. We have a facility here. We are 19 using the facility to the best that we can.
20 We can hear the individuals. I am sorry 21 if you are not able to. Again, we will reiterate to 22 all of the people to speak up to the degree that they 23 can to be heard. But that is the best that we can do 24 at this point in time.
25 Please continue, sir.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
15 1 MR. PRUYNE: Thank you, Your Honor.
2 Just my last sentence, the county does 3 agree with the State of New York that this Board and 4 the Commission should consider and examine the many 5 safety, environmental, and procedural issues 6 identified in the petition submitted by the State of 7 New York and adopted and cosponsored by Westchester 8 County.
9 CHAIRMAN McDADE: Okay. Thank you.
10 MR. PRUYNE: Thank you.
11 CHAIRMAN McDADE: Again, just dealing with 12 Westchester County in response to Westchester's 13 opening, does the NRC staff wish to make an opening, 14 Mr. Turk?
15 MR. TURK: No, Your Honor. I think what 16 we would like to do at some point is make a general 17 opening statement in response to all petitioners if 18 that is permissible.
19 CHAIRMAN McDADE: Well, I think that the 20 issues with regard to Westchester County are going to 21 be very limited in scope. The issues with regard to 22 the State of New York are going to be much broader in 23 scope. It might be appropriate for you to make an 24 opening prior to the time after New York makes its 25 opening.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
16 1 And I think basically the issues raised by 2 New York are issues that are common to all of the 3 petitioners in this particular case. Theirs I think 4 is one of the broadest in scope. So why don't we do 5 that.
6 Just based on what Westchester had to say, 7 Ms. Sutton, does the applicant wish to respond?
8 MR. BESSETTE: Yes, Your Honor. My name 9 is Paul Bessette. And I am responding on behalf of 10 the applicant.
11 Entergy has not and does not object to 12 Westchester County participating in this proceeding as 13 an interested governmental county. However, we do 14 object to Westchester County or any other party being 15 admitted as a full party without providing an 16 admissible contention of its own and would be willing 17 to address any questions the Board has.
18 CHAIRMAN McDADE: Okay. Thank you.
19 Okay. Directing to Westchester County, 20 the first issue that we had posed to you in the 21 scheduling order had to do with whether or not it was 22 permissible for us to allow an individual organization 23 to become a party by adopting the contentions of 24 another without having at least one admissible 25 contention of their own.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
17 1 We specifically cited you to two 2 particular cases that seem to go in opposite 3 direction. One was the Commission decision in an 4 earlier Indian Point proceeding. And then there was 5 a Board decision in the Vermont Yankee case.
6 Do you have anything that you wish to say 7 on that issue?
8 MR. PRUYNE: Well, yes, Your Honor. I do 9 believe that the --
10 CHAIRMAN McDADE: And, again, to the 11 degree you can, please try to speak up. I do want 12 people to hear if it's at all possible.
13 MR. PRUYNE: Thank you.
14 I do believe that the current status of 15 the federal regulations, specifically 2.309, does 16 indicate that we can proceed as a party, rather than 17 as an interested governmental body. And I do believe 18 that the Vermont Yankee case that you cited to us 19 reaffirms that.
20 CHAIRMAN McDADE: Okay. The next question 21 is, why would you want to? What is your role in this 22 proceeding if you are admitted as a party under 2.309, 23 as opposed to participating as an interested 24 government entity under 2.315?
25 MR. PRUYNE: We believe that the county's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
18 1 participation in this is an integral part of this 2 process. And we do have a unity of interest with the 3 State of New York. And we have come to an agreement.
4 We do believe that they would be adequately 5 representing the county's positions with regard to all 6 32 of these contentions.
7 CHAIRMAN McDADE: Is it your position that 8 it's an either/or situation? Either you're in here as 9 a party under 2.309 or you're in here as an interested 10 government entity under 2.315?
11 MR. PRUYNE: Not necessarily, but I do 12 believe that at this stage, it is anticipated that we 13 would like to come in under 2.309 and that if that had 14 to be revisited at a later stage with regard to 2.315, 15 that that could be done so at that stage. But I 16 believe it will be premature at this time for us to 17 come in under 315.
18 CHAIRMAN McDADE: Okay. You understand 19 that if you were admitted under 2.315, you would have 20 the opportunity as a matter of right to introduce 21 evidence, to cross-examine witnesses, to offer 22 proposed findings of fact; whereas, if you came in 23 under 2.309, unless New York specifically authorized 24 you to do so, you would have to follow their lead.
25 You understand that?
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
19 1 MR. PRUYNE: Absolutely, Your Honor. And 2 we do have our faith and confidence. And the State of 3 New York would adequately represent the interests of 4 the county in this matter.
5 CHAIRMAN McDADE: In the event that you 6 were admitted under 2.309 and New York decided to 7 abandon one or more of its contentions, would you have 8 the ability to continue with that contention?
9 MR. PRUYNE: Yes, we would.
10 CHAIRMAN McDADE: Is that part of your 11 motivation for wishing to proceed under 2.309?
12 MR. PRUYNE: Yes, it is.
13 CHAIRMAN McDADE: Okay. Anything further 14 on this?
15 MR. PRUYNE: No, Your Honor.
16 CHAIRMAN McDADE: Okay. Mr. Turk?
17 JUDGE WARDWELL: Help me understand a 18 little bit more, if you would. If you were admitted 19 as an interested governmental body, would you not have 20 the abilities, then, to cross-examine other witnesses 21 from other parties that might be admitted to this 22 proceeding and not just relate to New York State's?
23 MR. PRUYNE: I don't think that we would 24 not have the ability to do so, but at this stage, we 25 are prepared to have a unified voice with the State of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
20 1 New York. And they would be doing that for us.
2 If at some point in the unlikely situation 3 that New York were to drop out with respect to certain 4 contentions, we would reexamine our position.
5 But as it stands now, New York will be 6 speaking for the County of Westchester.
7 JUDGE WARDWELL: And you're fully 8 confident that New York will be able to represent all 9 the questions and inquiries that you might have for 10 the other participants to their participation and not 11 directly your own to the degree that they allow or 12 disallow your participation?
13 MR. PRUYNE: Absolutely because we have 14 been working closely with the State of New York with 15 regard to this proceeding and other proceedings 16 involving this specific facility.
17 So we do have a good working relationship 18 with both offices and with the State of New York in 19 general. So we have full confidence that our 20 interests would be adequately represented.
21 JUDGE WARDWELL: As you read the 22 regulations, do you believe that it is inadmissible 23 for you to come in as an interested governmental body 24 and also adopt New York's contentions at the same 25 time?
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
21 1 MR. PRUYNE: I don't understand what you 2 mean by the term "inadmissible."
3 JUDGE WARDWELL: Well, is it or is it not 4 allowed by the regulations for you to come in as an 5 interested governmental body and at the same time 6 adopt a contention as an interested governmental body 7 such that it preserves your rights in the future 8 should New York State drop any one of their 9 contentions for you to pick it up at that point and 10 become a full-fledged party member, as opposed to an 11 interested governmental body? Can you do it both 12 ways? Is there anything in the regulations that 13 prohibits you from doing it both ways that you are 14 aware of?
15 MR. PRUYNE: Not that I am aware of.
16 JUDGE WARDWELL: Thank you.
17 CHAIRMAN McDADE: Well, specifically in 18 addressing the language of 2.315, it talks about 19 interested government agencies who have not been 20 admitted as a party under 2.309. That is a quote from 21 the regulation.
22 If we admit you as a party under 2.309, 23 are we not precluded from having you participate as an 24 interested government entity under 2.315?
25 MR. PRUYNE: I don't believe so. I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
22 1 believe that you could make an order subsequent to 2 that initial order, let's say, if there was a 3 contention that was to be dropped or there was a 4 difference with regard to whether, let's say, New York 5 State was no longer going to represent us with regard 6 to a contention. I believe you could revisit that 7 issue with regard to 315.
8 CHAIRMAN McDADE: Okay. Mr. Turk, with 9 regard to the NRC staff, how do you read 2.315? If we 10 admit them under 2.309, are they precluded from 11 participating under 2.315?
12 MR. TURK: Yes, they are, Your Honor. I 13 think you hit the nail on the head. 2.315 is entitled 14 "Participation by a Person Not a Party." The entire 15 regulation addresses what do you do with someone who 16 is not admitted as a party, either an individual or 17 other entity or an interested state or municipal or 18 county government.
19 So you essentially have a choice. Should 20 Westchester be admitted as a party? Have they made 21 out the case that they need to make to be admitted as 22 a party or not? If they have not, then the regulation 23 in 2.315 states that you have the option, the 24 discretion to admit them under 2.315(c) as an 25 interested governmental entity. It's one way or the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
23 1 other.
2 CHAIRMAN McDADE: But if we admit them 3 under 2.309, we could not also accept them under 2.315 4 and allow them the right to present evidence to 5 cross-examine, present proposed findings of fact as to 6 all contentions, whether New York or other parties?
7 MR. TURK: That's how we read the 8 regulation because, in effect, they would then be a 9 super party. They would have more rights than any 10 other party in the proceeding.
11 CHAIRMAN McDADE: Now, with regard to the 12 first issue, whether or not not having submitted an 13 admissible contention of their own, whether or not 14 they can adopt the contentions of the State of New 15 York, why should we not follow the ruling of the Board 16 in Vermont Yankee and allow them to do so?
17 MR. TURK: The two cases that you cited, 18 the Vermont Yankee case and the other decision, both 19 involved a different fact situation. There the 20 different petitioners had submitted admissible 21 contentions.
22 So the Board's and the Commission's ruling 23 there found they already had petitioners who met the 24 standards for intervention. They were admitted as a 25 party. And then you get to the second question, which NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
24 1 is adoption.
2 Here Westchester has filed no contentions.
3 And while we certainly recognize that Indian Point is 4 located in Westchester County, Westchester County has 5 an obvious interest in assuring the safety of its 6 citizens, they still have not met the standards for 7 intervention. One, they have standing, but, two, they 8 have not filed any contentions of their own.
9 CHAIRMAN McDADE: Is there anything that 10 you can point us to in the regulations or in 11 Commission case law that says specifically if you have 12 an entity that has demonstrated standing, that they 13 cannot become a party by adopting contentions without 14 submitting their own? And, again, putting aside the 15 Indian Point, the old Indian Point decision, which was 16 under the earlier regulations, is there anything other 17 than that case that you can point to that leads one to 18 that conclusion?
19 MR. TURK: I can't think of one, Your 20 Honor, but I would point to the whole rationale of the 21 Commission's regulations on intervention. If it was 22 enough for a petitioner simply to demonstrate standing 23 and then come in and say, "I would like to adopt other 24 people's contentions," they wouldn't have the two-part 25 test that the Commission has sought for intervention.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
25 1 One, they must show standing. Two, they must have an 2 admissible contention of their own. To admit --
3 CHAIRMAN McDADE: Well, is the second part 4 of that really so we have appropriate issues, the 5 contention requirements that somebody has identified 6 issues that are worthy of a hearing?
7 So here in the situation if the State of 8 New York, for example, indicates those issues that are 9 worthy of a hearing that there is a genuine dispute 10 with regard to, why would it be against the Commission 11 policy to have Westchester adopt those same 12 contentions, instead of just simply writing them out, 13 basically duplicating what the State of New York has 14 written, signing it themselves? Why isn't it 15 sufficient for them just to say, "We're satisfied. We 16 have read what New York has submitted. We agree with 17 that"? Why should they have to submit basically a 18 duplicate petition?
19 MR. TURK: I would address that by telling 20 you how I perceive what would happen if a Board were 21 to rule that way. If it were permissible for 22 petitioners simply to demonstrate standing, then you 23 could have a million people come in and say, "We have 24 standing. And we would like to adopt New York State's 25 contentions and be a party. And if New York State NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
26 1 withdraws, well, we will take over the contentions."
2 That is not the intent of the Commission 3 in establishing the intervention requirements. Anyone 4 who seeks to intervene as a party must meet the 5 twofold test of standing and having an admissible 6 contention.
7 CHAIRMAN McDADE: So it's the position of 8 the staff that the 309 sets out the requirements, and 9 they have to meet them, period?
10 MR. TURK: Yes.
11 CHAIRMAN McDADE: And unless they're 12 admitted under 309 as a party by meeting both the 13 standing and the submission of contention 14 requirements, then they don't have the opportunity to 15 adopt the contentions of others?
16 MR. TURK: That's correct.
17 CHAIRMAN McDADE: Okay.
18 JUDGE WARDWELL: Can you surmise why the 19 words "requester" and "petitioner" are used, then, in 20 309, as opposed to "party"?
21 MR. TURK: Until a petitioner is admitted 22 as an intervention, they are not a party. So until a 23 board has determined that they have standing and have 24 filed an admissible contention, they are a petitioner 25 or someone who requests a hearing only, not a party.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
27 1 JUDGE WARDWELL: But you are saying that 2 only parties can adopt contentions?
3 MR. TURK: Yes.
4 JUDGE WARDWELL: And 309(3), (f)(3), deals 5 with that adoption process and uses the terms 6 "requester," "petitioner," not "parties." Why 7 wouldn't it use the term "parties," then?
8 MR. TURK: It is possible that if a 9 petitioner files an admissible contention and seeks to 10 adopt the contentions of others -- and I believe that 11 happened in one of the cases that the Licensing Board 12 cited to us.
13 So at the same time that the Board rules 14 on the petitioner's standing to intervene, they also 15 could rule on the adoption request before there has 16 been a prior ruling on party status. So it could be 17 a simultaneous ruling, rather than in sequence. But 18 still that petitioner would have to have filed an 19 admissible contention.
20 JUDGE WARDWELL: One other, I am 21 interested in what happens to a party who is admitted 22 as an interested governmental body, a local 23 governmental body, whether or not there is anything in 24 the regulations that prohibits them from adopting a 25 contention and losing their status as an interested NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
28 1 governmental body by that action.
2 Do you know of any regulation that 3 prevents that from happening?
4 MR. TURK: I don't know if a regulation 5 addresses that, but they would not be a party. Again, 6 2.315(c) addresses persons who are not parties. And 7 it affords Westchester County substantial rights to 8 come in, introduce evidence.
9 I don't know that we will have 10 cross-examination here. It is more likely we will 11 have Board questioning, although I don't think the 12 Board has ruled on that issue yet.
13 But they would be able to introduce 14 evidence and submit pleadings to the Licensing Board 15 and take up appeals. They would have the rights of a 16 litigant other than sponsorship of a contention and 17 management of the direction of that contention.
18 JUDGE WARDWELL: But could they not at the 19 same time -- do the regulations prohibit them at the 20 same time from adopting a contention just in case one 21 of the other parties dropped a contention and then 22 they would sacrifice their status as a local 23 governmental body and become a regular party if they 24 wanted to pick it up at that time? Just in regards to 25 preserving their rights to do that, is there anything NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
29 1 in the regulations that prohibits that from taking 2 place?
3 MR. TURK: If they sought to adopt a 4 contention after it was admitted, they would be 5 obliged to file a request for admission of that 6 contention as their own.
7 Essentially it would become their 8 late-filed contention. And they would then have to 9 meet the late filing standards as I understand the 10 regulations.
11 JUDGE WARDWELL: Where does the term 12 "late" come in? Do you mean a new contention at that 13 time? I mean, there is no lateness with it, is there?
14 MR. TURK: It would be lateness in their 15 seeking to introduce that contention.
16 JUDGE WARDWELL: Lateness from what?
17 MR. TURK: Lateness of filing a 18 contention.
19 JUDGE WARDWELL: Do you mean in regards to 20 regulation of filing a contention, an untimely 21 contention, if you will, or --
22 MR. TURK: Yes.
23 CHAIRMAN McDADE: Does Entergy have 24 anything to add on this issue?
25 MS. SUTTON: Your Honor, we do. We just NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
30 1 want to reiterate that we believe that you will be 2 reading the meaning out of 2.309(a) if you allow 3 Westchester party status without having proffered an 4 admissible contention.
5 CHAIRMAN McDADE: Okay. Do you think that 6 the Indian Point Board's decision was ill-advised? If 7 so, why?
8 MS. SUTTON: I believe that the facts were 9 different in that case, that they had proffered 10 admissible contentions.
11 CHAIRMAN McDADE: So it's not that they 12 were wrong. It's just that the facts are 13 distinguishable from the facts here?
14 MS. SUTTON: Absolutely.
15 CHAIRMAN McDADE: Okay. We have no other 16 questions with regard to Westchester at this time.
17 Before you withdraw and we start on the State of New 18 York, do you have anything further --
19 MR. PRUYNE: No, Your Honor.
20 CHAIRMAN McDADE: -- that you would like 21 to add?
22 MR. PRUYNE: No.
23 CHAIRMAN McDADE: Okay. Thank you very 24 much.
25 MR. PRUYNE: Thank you.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
31 1 CHAIRMAN McDADE: If we could have the 2 representatives of the State of New York come forward?
3 MS. DENERSTEIN: We're here, Your Honor.
4 CHAIRMAN McDADE: Okay. Are you all of 5 them?
6 MS. DENERSTEIN: Actually, if it would be 7 helpful to Your Honors, we would like to introduce 8 ourselves.
9 CHAIRMAN McDADE: Okay. Please do so.
10 MS. DENERSTEIN: I am Mylan Lee 11 Denerstein. I am an Executive Deputy Attorney General 12 for Social Justice for Attorney General Andrew Cuomo.
13 MR. SIPOS: Good morning, Your Honors.
14 John Sipos, S-i-p-o-s, Assistant Attorney General for 15 the New York State Department of Law.
16 MR. ROYCEMAN: Your Honor, my name is 17 Anthony Royceman. I have not entered an appearance.
18 And I am appearing here only as a consultant to the 19 State of New York. I will not be speaking.
20 CHAIRMAN McDADE: Okay. Thank you.
21 MR. ROYCEMAN: Thank you.
22 MS. MATTHEWS: Your Honors, my name is 23 Joan Leary Matthews. And I am senior counsel for the 24 New York State Department of Environmental 25 Conservation, also for the State of New York.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
32 1 MR. PARKER: Your Honors, my name is John 2 Parker. I am regional attorney for the Department of 3 Environmental Conservation.
4 CHAIRMAN McDADE: And if you have not done 5 so before, when we get to a break, if you could give 6 the names to the Court Reporter to make sure he has 7 got the spellings correct on all the names?
8 MS. DENERSTEIN: And, Your Honors, I would 9 just also like to briefly introduce Jody Feld, who is 10 a scientist from the Attorney General's office; and 11 Janice Dean, who is an Assistant Attorney General in 12 Cape Kennedy, who is in charge of the environmental 13 protections there.
14 CHAIRMAN McDADE: Thank you.
15 At this point, before we begin your 16 questioning, does New York wish to make an opening 17 statement generally with regards to the admissibility 18 of their contentions?
19 MS. DENERSTEIN: Yes, it does, Your Honor.
20 Good morning. You just heard my name. I 21 am Mylan Denerstein. I work for Attorney General 22 Andrew Cuomo and serve as Executive Deputy Attorney 23 General for Social Justice. On behalf of the Attorney 24 General and the State of New York, welcome. Thank you 25 for holding an oral argument on this important matter.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
33 1 At the outset, I want to note that the 2 state strongly agrees with Westchester that the county 3 and the state should be permitted to speak with one 4 voice.
5 Westchester County should be allowed to 6 cosponsor the state's contentions as a full party. As 7 Your Honors noted, it makes a judicial economy. There 8 are scales of economy that are to be gained from doing 9 so.
10 As the NRC's Director of the Office of 11 State Programs, Robert Ryan, said in 1979, it is 12 insane to have a nuclear reactor on the Hudson River 13 in Westchester County, 40 miles from Times Square.
14 Indian Point is one of the most inappropriate sites in 15 existence.
16 It is an argument that has only gotten 17 stronger with time in light of new realities. It is 18 now 2008. And the unique safety, public health, and 19 environmental risks posed by Indian Point have only 20 increased. That is why the State of New York 21 unequivocally opposes the relicensing of the Indian 22 Point nuclear power plant.
23 Let me elaborate. Indian Point is not 24 secure from the threat of terrorism or the threat of 25 accidental radioactive releases. Sadly, New Yorkers NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
34 1 know all too well that the threat of terrorism is 2 real. September 11th left absolutely no doubt about 3 that.
4 I was going to list for Your Honors 5 several examples of why it is clear that Indian Point 6 would be a likely target for a terrorist attack, but 7 I think it is obvious given what Westchester has 8 discussed about the population and the siting of the 9 plant.
10 We believe the Board must and can address 11 this critical issue in the context of the license 12 renewal proceeding. Moreover, the threat of 13 accidental releases of radioactivity is also real.
14 These 40-year-old power plants are showing 15 the strains and stress of aging. We see this in the 16 plant's aging spent fuel storage pools, which have 17 developed leaks and are sending radioactive fluids 18 into underground pools and ultimately into the state's 19 precious Hudson River.
20 New York State has grave concerns about 21 the future safety of Indian Point. We see this in a 22 whole state of recent system and structure failures, 23 including steam tube ruptures and a transformer 24 explosion and fire. New York State has grave concerns 25 about the future safety of Indian Point given the past NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
35 1 history of serious safety problems.
2 Finally, the threat of an intentional or 3 accidental release is made uniquely unacceptable 4 because of the number of people put at risk. The 5 Indian Point nuclear power plants are located within 6 a 50-mile radius of 20 million people. These reactors 7 have the highest surrounding population density of any 8 of the 104 nuclear power plants in this country.
9 The NRC simply would not permit Indian 10 Point to be built today in Westchester County under 11 its current siting regulations. And it should not be 12 repermitted.
13 And let's be clear, there can be no timely 14 evacuation of this area. Thus, this Board should not 15 allow Indian Point to increase this enormous risk by 16 extending its license for another 20 years.
17 The continued operation of Indian Point is 18 untenable. The risks are simply too great. Because 19 of these unique risks, New York State has mounted what 20 is probably the most massive and well-supported 21 opposition to a relicensing application in the history 22 of the United States.
23 With a team of legal and technical 24 experts, we have pored through Entergy's application 25 and identified in detail 32 contentions for Your NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
36 1 Honors' considerations. The contentions explain 2 critical deficiencies in Entergy's license renewal 3 application.
4 Each of our contentions is supported by 5 factual evidence, voluminous studies, and sound legal 6 analysis. Many of our contentions are further 7 supported by expert declarations in the courts. New 8 York State has assembled some of the nation's foremost 9 experts.
10 The state has followed the rules and the 11 procedures of the NRC. Entergy has not. Entergy's 12 license renewal application is ripe with errors and 13 surprisingly out of date.
14 Entergy's application and environmental 15 report impermissibly rely on incomplete plans, vague 16 promises to do something in the future, and obsolete, 17 stale, or incorrect data. For example, Entergy 18 references seismic data that is approximately 27 years 19 old, despite the availability of more recent data that 20 shows the risk of earthquakes is stronger than Indian 21 Point was designed to withstand.
22 That simply should not be permissible.
23 This Board must hold Entergy accountable. There is 24 simply too much at stake to do otherwise.
25 As the Board has noted, the NRC's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
37 1 regulations on relicensing are strict by design.
2 Entergy must be held to the same strict standards as 3 are applied to petitioner/intervenors. If the same 4 standard applies, the state will prevail.
5 In conclusion, Indian Point's license 6 renewal application must be denied. There is simply 7 no safe alternative. Thank you.
8 At this time, Ms. Matthews will give the 9 remainder of the state's opening statement.
10 MS. MATTHEWS: Good morning, Chairman 11 McDade, Judge Lathrop, and Judge Wardwell. As you 12 heard before, my name is Joan Leary Matthews, counsel 13 for the New York State Department of Environmental 14 Conservation. And I am here on behalf of the State of 15 New York to also answer your questions about why New 16 York's detailed contentions should be granted a 17 hearing.
18 At stake in this proceeding are the 19 health, environment, and safety of more than 20 20 million people who live within 50 miles of Indian 21 Point.
22 This plant is different than other nuclear 23 power plants. This courtroom is a few miles from 24 Indian Point, which is located in the middle of this 25 nation's most heavily populated metropolitan area.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
38 1 And it is a short drive from New York City, the 2 world's greatest financial center.
3 Whatever the chances of a failure at 4 Indian Point, the consequences would be catastrophic 5 in ways that are almost too horrific to contemplate.
6 Yet, thinking about those consequences is exactly what 7 everyone in this room needs to do today.
8 This plant also sits on the shores of the 9 Hudson River. This mighty and proud river has always 10 been one that runs two ways. Yet, the Board must not 11 let this proceeding run two ways by having a process 12 that allows petitions like ours to be presented but 13 then only to be denied, and wrongly so, for narrow, 14 technical, and legalistic reasons, as Entergy is 15 asking this Board to do. The law demands otherwise, 16 as do the millions of people, the families, the 17 children, and the businesses that call this area home.
18 This is a day when we need to acknowledge 19 some self-evident truths. One of those truths is that 20 this area cannot be safely evacuated. Local residents 21 know that a fender-bender can tie up traffic for 22 hours2.546296e-4 days <br />0.00611 hours <br />3.637566e-5 weeks <br />8.371e-6 months <br />. What would happen in the event of serious and 23 fast-moving nuclear accident?
24 Another self-evident truth is that Indian 25 Point is a tired, aging plant, not up to the rigors of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
39 1 operating for an additional 20 years. Let's face 2 reality. This company could not figure out how to get 3 the sirens to work.
4 And at a time when the government is 5 asking citizens to be vigilant because of terrorist 6 threats and when security measures are heightened 7 everywhere, the NRC is considering relicensing a 8 nuclear power plant where a security guard was 9 recently found sleeping on the job.
10 It is also self-evident that Indian Point 11 has very significant environmental impacts. Yet, the 12 NRC staff thinks that environmental impacts such as 13 radioactive leaks into the Hudson River shouldn't be 14 considered. As we begin celebrating the 400th 15 anniversary of the discovery of the Hudson River, can 16 the federal government seriously be considering 17 relicensing Indian Point for two more decades without 18 a serious review of its environmental impacts?
19 We understand, of course, that stating the 20 obvious is not enough to get a full hearing. To the 21 contrary, this proceeding is highly technical and, 22 without question, significantly advantages the 23 applicant.
24 Entergy is allowed to play a waiting game.
25 It has submitted a bare bones, insufficient NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
40 1 application, waited for us to find faults, and then 2 claims that it will fix them.
3 The contention presented by the State of 4 New York, however, expose Entergy's strategy and 5 provide a clear record for this Board to direct a full 6 hearing.
7 Entergy undoubtedly finds comfort in the 8 perfect industry record of NRC license renewals. It 9 sounds incredible, but in 42 proceedings, 42 licenses 10 have been renewed. This should and, based on the 11 evidence, will be the case where that perfect industry 12 record falls.
13 Here is one final self-evident truth.
14 Given the age and history of these two reactors; given 15 the significant environmental impacts that happen 16 every day this plant operates; given the continuing 17 radioactive leaks; given the failure to properly 18 address critical issues in the application, such as 19 metal fatigue; and, most important, given the very 20 real risks posed to tens of millions of New Yorkers, 21 it is self-evident that this license cannot be renewed 22 without a full hearing just because Entergy says that 23 Indian Point will be operated safely for two more 24 decades. That is our concern. That is why we are in 25 this proceeding.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
41 1 We have presented a case that more than 2 justifies the need for a full hearing. We have 3 presented compelling and detailed contentions raising 4 significant and important issues well within the 5 narrow scope of review.
6 A hard look is what is needed with respect 7 to every issue raised in this proceeding. There may 8 never again be a nuclear license renewal case where 9 the facts and circumstances so clearly warrant such a 10 public hearing process or where the stakes are so 11 high.
12 We are prepared to answer the Board's 13 questions. And we ultimately ask that a determination 14 be made directing a full hearing on the state's 15 contentions.
16 Thank you very much.
17 CHAIRMAN McDADE: Thank you.
18 Mr. Turk?
19 MR. TURK: Thank you, Your Honor.
20 The NRC staff, as the Licensing Board I'm 21 sure is aware, is tasked with reviewing the license 22 renewal application that is submitted by Entergy and 23 determining whether or not that application meets the 24 requirements of the Commission for license renewal.
25 The Commission in the past, commencing, I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
42 1 believe, in the 1980s, began to look at the issue of 2 what issues need to be considered for license renewal.
3 Do we go back and look at all of the 4 issues that pertain to the safety or environmental 5 impacts of a nuclear power plant or is the renew at 6 license renewals stage more limited?
7 And the answer, stated by the Commission 8 in both 1991 in its statement of consideration 9 accompanying its initial rulemaking on license renewal 10 as well as in the 1995 statement of consideration on 11 license renewal, is that only certain issues need to 12 be examined for a license renewal.
13 CHAIRMAN McDADE: Mr. Turk, if you could, 14 could you try to just speak up a little bit because I 15 would like everyone to be able to hear you as well as 16 possible?
17 MR. TURK: Thank you, Your Honor. I will 18 try.
19 In 1991, when the Commission adopted the 20 license renewal regulations, they issued a statement 21 of consideration, in which they looked at what issues 22 need to be examined for a license renewal.
23 And at that time they indicated -- and 24 this is published in the Federal Register at, I 25 believe it is, 56 Federal Register --
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
43 1 CHAIRMAN McDADE: We have the cite, Mr.
2 Turk.
3 MR. TURK: Okay. At page 56, line 46 of 4 the Federal Register, the Commission stated that since 5 initial licensing, each operating plant has 6 continually been inspected and reviewed as a result of 7 new information gained from operating experience.
8 Ongoing regulatory processes provide 9 reasonable assurance that as new issues and concerns 10 arise, measures needed to ensure that operation is not 11 inimical to the public health and safety and common 12 defense and security are backfitted onto the plants.
13 The Commission decided that there is no 14 need to reexamine at license renewal stage all of the 15 various issues that would be examined for initial 16 licensing and that are examined during the course of 17 ongoing operations at a nuclear power plant.
18 The Commission concluded that there is 19 considerable logic to the proposition that issues that 20 are material as to whether a nuclear power plant 21 operating license may be renewed should be confined to 22 those issues that are uniquely relevant to protecting 23 the public health and safety and common defense and 24 security during the renewal period. Other issues 25 would by definition have a relevance to the safety and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
44 1 security of current plant operation.
2 The Commission continued, "Given the 3 Commission's ongoing obligation to oversee the safety 4 and security of operating reactors, issues that are 5 relevant to both current plant operation and operation 6 during the extended period must be addressed now 7 within the present license term, rather than at the 8 time of renewal."
9 In a nutshell, that is the definition of 10 the scope of issues that may be considered in this 11 license renewal proceeding. The issues must be either 12 those which are laid out in the regulations in 10 CFR 13 part 54 or those environmental impacts that are 14 permitted to be considered under 10 CFR part 51.
15 The staff's position with respect to 16 contentions that you will be hearing from us today 17 focuses on two essential considerations. Number one 18 is the issue raised within the proper scope of this 19 proceeding. Number two, has the petitioner met the 20 pleading requirements set out for contentions in 10 21 CFR 2.309?
22 And those are the issues which the Board 23 must address in its decision on the admissibility of 24 contentions.
25 CHAIRMAN McDADE: Okay. Thank you, sir.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
45 1 For Entergy?
2 MR. BESSETTE: Yes, Your Honor. Paul 3 Bessette.
4 We disagree, obviously, with New York's 5 characterization and the substance of their arguments 6 in our license renewal application. Entergy believes 7 it prepared a robust and legally sufficient 8 application for the Indian Point licensing, Indian 9 Point Entergy center.
10 As Mr. Turk said, many of the issues 11 raised by New York today are simply outside the scope 12 of this proceeding. And, finally, we are not here 13 today to determine the suitability of the siting of 14 the facility for Commission policy.
15 We would be glad to answer any further 16 questions you may have.
17 CHAIRMAN McDADE: Okay. Thank you.
18 What we want to do is ask some preliminary 19 questions and then get into individual contentions.
20 One of the preliminary questions that I have, first of 21 all, of New York State, in your petition, you 22 indicated that at a later point in time, you 23 anticipated making the request that this proceeding be 24 taken under subpart G, which is the formal hearing 25 proceedings, as opposed to subpart L.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
46 1 Is it the position of New York State that 2 that request would be made after the contention 3 admissibility decisions are made?
4 MR. SIPOS: Good morning, Your Honor.
5 John Sipos, Assistant Attorney General.
6 The short answer to your question is yes.
7 We wanted to place the parties, the applicant and the 8 staff, on notice about New York's position. We wanted 9 to raise it for the Board's awareness. But we would 10 be filing a formal motion subsequent to whatever 11 ruling Your Honors make on the contentions 12 admissibility.
13 CHAIRMAN McDADE: Okay. And, Mr. Turk, 14 the NRC staff agrees that that would be timely, that 15 once we know what contentions, if any, are admitted, 16 that that would be the time to make a determination as 17 to whether a subpart G proceeding would be 18 appropriate?
19 MR. TURK: Your Honor, I would have to 20 wait to see the motion and reach that determination.
21 I don't know the answer as I sit here.
22 CHAIRMAN McDADE: Well, I mean, at this 23 point in time, the question isn't whether or not the 24 motion would be granted. We haven't seen the motion.
25 It just has to do with when it should be filed. And NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
47 1 the question is whether or not you agree that the time 2 to be filed is after the contentions, if any, are 3 admitted, at which point we know what the issues are 4 going to be.
5 And at that point, we would have a context 6 in which to make a determination as to whether or not 7 a formal or an informal proceeding would be more 8 appropriate.
9 MR. TURK: I think the Licensing Board 10 would be better informed once the contentions are 11 admitted. That is not to say that the motion would be 12 timely or that we would take a position on that now or 13 that the Board couldn't consider that suggestion 14 today.
15 We don't have a position on which is the 16 mandatory course to follow.
17 CHAIRMAN McDADE: Does the applicant have 18 a position on that?
19 MS. SUTTON: Yes. The customary format, 20 Your Honor, is subpart L, as you are aware. At this 21 point in time, we believe there is no basis for 22 subpart G. At some later point in time the state 23 files such a motion, we will respond to it in 24 accordance with the standards that are set forth in 25 Vermont Yankee, LBP 06-20.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
48 1 CHAIRMAN McDADE: But at this point just 2 to do with the timing of it, you would agree that at 3 this point, the motion would be premature?
4 MS. SUTTON: Yes, Your Honor.
5 CHAIRMAN McDADE: One of the issues that 6 is going to come up constantly through the course of 7 our discussion here today has to do with the current 8 licensing basis. And that is something that comes up 9 in a significant number of the contentions that were 10 filed by the State of New York.
11 And there is some dispute, I think, 12 between the parties as to what exactly the issue is.
13 And the issue, as I understand it, is not whether or 14 not the applicant was required to put together a 15 document containing a current licensing basis.
16 What the State of New York is contending 17 is that given the state of the record, it cannot 18 ascertain what the current licensing basis is. Given 19 the fact that it can't ascertain what the current 20 licensing basis is, you can't determine whether or not 21 the evaluation of those procedures, structures, 22 systems that need aging management are adequate or 23 not. You don't know where you are starting from. So 24 you don't know how to apply the aging management 25 systems.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
49 1 Is that tin the gist of New York's 2 position?
3 MR. SIPOS: That's exactly New York's 4 position, Your Honor. Our position has nothing to do 5 with assembling documents. It is, as your question 6 stated, that New York is unable to determine if there 7 is a current licensing basis and the consequences that 8 flow from that connected to the updated final safety 9 analysis report, the general design criteria in other 10 instances when we have identified issues regarding the 11 current licensing basis, that is exactly correct.
12 CHAIRMAN McDADE: Okay. Thank you.
13 Mr. Turk, starting with the definition of 14 the current licensing basis in 54.3, where do we go to 15 ascertain what the current licensing basis is? If we 16 sit down and we say, "Let's look it up," how does the 17 NRC staff do that?
18 The NRC staff is going out to conduct an 19 inspection of Indian Point or any other facility. How 20 does the inspector know what the current licensing 21 basis is so that they can make a determination as to 22 whether or not the applicant is in compliance with it?
23 MR. TURK: The current licensing basis 24 consists of a series of documents that arise during 25 the course of the operation of the facility. It NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
50 1 includes the FSAR, the final safety analysis report, 2 as well as all of the various correspondence and 3 actions that have been taken with respect to the plant 4 since initial licensing.
5 When an inspector goes out to determine 6 whether the requirements of the license are being met, 7 the inspector would sit down and look at, what are the 8 requirements that pertain to this particular system or 9 component or structure and determine what is the 10 current licensing basis and then look to see, is it 11 being met? So it's somewhat on a case-specific or 12 incident-specific basis.
13 CHAIRMAN McDADE: In your papers, you 14 indicate that the current licensing basis is based on 15 those records that have been docketed with the NRC and 16 that those records would be accessible through ADAMS 17 or other records systems within the NRC.
18 Let me ask, what does the NRC do 19 specifically if they are looking at a particular 20 system to determine what the current licensing basis 21 is for that particular system? How would they go 22 about finding it?
23 Because, again, we start with a premise 24 that this is not pulled together in one place. It's 25 not like you can just simply go to a bookcase and the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
51 1 current licensing basis will be there in a number of 2 binders and you can just simply go to a particular 3 paragraph and determine, for example, how a particular 4 piece of equipment is required to operate.
5 So how does the NRC determine what the 6 current licensing basis is? Specifically the question 7 raised by New York, as I understand it, is how do we 8 as New York ascertain what that current licensing 9 basis is?
10 MR. TURK: May I have just a moment, Your 11 Honor?
12 CHAIRMAN McDADE: Please.
13 (Pause.)
14 MR. TURK: I thank you.
15 I am very fortunate to have knowledgeable 16 staff with me, Your Honor. I was just conferring with 17 Mr. Boska, who is the project manager for current 18 operations for Indian Point. And he confirmed that 19 the basis for determining the current licensing basis 20 or the first place you would go would be to look at 21 the license itself.
22 The license itself has different 23 requirements set out in license conditions. It has a 24 detailed set of technical specifications that govern 25 the mandatory requirements for plant operation.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
52 1 After looking at the license, the project 2 manager or the inspector would look at the updated 3 final safety analysis report because that should 4 document most of the requirements that apply to the 5 plant.
6 And, if necessary, the inspector or 7 project manager or member of the staff would look to 8 see, are there other submittals that pertain that need 9 to be addressed?
10 CHAIRMAN McDADE: And where would they 11 find those other submittals?
12 MR. TURK: The staff --
13 CHAIRMAN McDADE: We have basically got 14 almost 30 years of them with regard to Indian Point, 15 correct?
16 MR. TURK: Well, yes. And you have that 17 with respect to all nuclear power plants that come in 18 for a license renewal. And the same situation applies 19 probably throughout the industry that you don't have 20 an assemblage of documents where you could say, "For 21 this structure, here is every document that pertains.
22 Here is the current licensing basis laid out in nice, 23 easy to access format."
24 JUDGE WARDWELL: You say there isn't 25 access to it in easy format? Is that what you just NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
53 1 said? I'm sorry. I missed that.
2 MR. TURK: There's no document assemblage 3 that says, "Here is everything that pertains to the 4 plant" in one place. So the staff would have to go 5 back. If it's not satisfied that enough information 6 is available to it in the FSAR and the license, it 7 might go back and say, "What are other commitments 8 that have been made that may not be apparent here?"
9 JUDGE WARDWELL: Without that --
10 MR. TURK: But they should be. Any 11 binding or any important commitment should be laid out 12 in the FSAR or in the license itself.
13 JUDGE WARDWELL: Is there an updated FSAR 14 currently for Indian Point available?
15 MR. TURK: Yes. Like any nuclear power 16 plant, it is required to update every two years.
17 JUDGE WARDWELL: And is that in one 18 location --
19 MR. TURK: Yes.
20 JUDGE WARDWELL: -- under a sanction 21 number, say in ADAMS or some format like that?
22 MR. TURK: Yes.
23 JUDGE WARDWELL: Without the assembly of 24 all of the information, how is a petitioner to 25 determine whether or not a particular component is in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
54 1 that current licensing basis such that it isn't 2 required to be addressed under a licensing renewal 3 aging management review?
4 MR. TURK: The petitioner would have to do 5 the same thing the staff does, perhaps with less 6 knowledge about where to look. But they would have to 7 look for relevant documents that pertain to that 8 structure, system, or component.
9 JUDGE WARDWELL: But it would be even a 10 harder challenge for them, wouldn't it, because they 11 are looking for a negative? They have to search 12 everywhere because they may not find it in one 13 location, but they can't necessarily, then, conclude 14 that it's not in some other location and exempt it 15 from this aging management review. Isn't that 16 correct?
17 Isn't it a monumental task to do that 18 without a compiled current licensing basis that 19 someone could go to and look in one location to see 20 the absence or presence of a given component?
21 MR. TURK: I am sure it is a difficult 22 task, Your Honor. And the Commission has addressed 23 that in its statements of consideration. The 24 Commission specifically ruled or stated in adopting 25 its rules that there is no requirement that the CLB, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
55 1 the current licensing basis, be assembled.
2 CHAIRMAN McDADE: It's not a requirement 3 that it be assembled, but the question that New York 4 has is, how is it ascertained? Now, they are not 5 saying necessarily and based on what the Commission 6 has said that it has to be located in one location, 7 but without having an index, a list, indicating, now, 8 specifically what changes have been made, what changes 9 the NRC has required, you know, where does a 10 petitioner go?
11 Again, they are required in their 12 pleadings to be very specific under 2.309. And their 13 basic thrust is it is very difficult for us to do that 14 when we have such an amorphous thing as the CLB to 15 work with.
16 So is there any specific guidance in NRC 17 documents that tell them how this can be ascertained?
18 MR. TURK: I don't know the answer to 19 whether there is guidance for that, Your Honor. The 20 licensees are not required to maintain an assemblage 21 in a neat, orderly, indexable fashion of all the 22 different matters that pertain to their licensing 23 basis.
24 CHAIRMAN McDADE: Put aside the applicant 25 right now. What about the NRC? Does it maintain the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
56 1 current licensing basis in any specific manner?
2 MR. TURK: Not in the manner you are 3 suggesting.
4 CHAIRMAN McDADE: Okay. One of the things 5 you mentioned earlier was the FSAR. And you say that 6 has to be updated every two years.
7 MR. TURK: Yes.
8 CHAIRMAN McDADE: And I believe in the 9 documents, it is referred to by the staff as the 10 UFSAR, which is the updated final safety evaluation 11 report.
12 MR. TURK: Safety analysis report.
13 CHAIRMAN McDADE: Safety analysis report.
14 Okay. We are using an awful lot of acronyms. There 15 are people who are listening who don't necessarily 16 work in a nuclear plant and probably aren't going to 17 be familiar with them.
18 So what I am going to try to do, ate least 19 the first time we use an acronym, is to try to say out 20 all the words. And then we can go back to the 21 initials later on.
22 MR. TURK: Okay.
23 CHAIRMAN McDADE: Okay. From the 24 standpoint of Entergy --
25 JUDGE WARDWELL: Before we get to it, can NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
57 1 I just ask a clarifying question of petitioner? New 2 York State, could you elaborate a bit more on the 3 difference between ascertaining the CLB and not 4 compiling it? Couldn't someone take a position that, 5 really, you have a hidden agenda in regards to 6 requiring them to really compile it?
7 What would serve your needs in regards to 8 being able to locate and access the information you 9 needed in order to determine which components are 10 needed for an aging management plan?
11 MR. SIPOS: Your Honor, there is no hidden 12 agenda on New York's part. We have tried to follow 13 the NRC's regulations as they have been promulgated 14 and as they have been amended. We understand the 15 difference between the 1991 regulations and the 1995 16 regulations. We understand the questions about 17 assembling the CLB.
18 And I want to make it unambiguously clear 19 any argument that New York is trying to force Entergy 20 to assemble and serve up in a banker's box the CLB is 21 an argument that misses New York's point.
22 We submit it is a red herring. Our 23 argument is not that it should be assembled. Our 24 argument is that it is not ascertainable. And, 25 moreover, New York's argument is also that right now NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
58 1 as we are here today in this courtroom, there is not 2 an updated, a meaningful updated, final safety 3 analysis report.
4 Chairman McDade I think is right to note 5 the issue of acronyms. And we throw them around.
6 UFSAR becomes almost second nature. But what does 7 that term stand for? The first word in that term is 8 "updated." And in this instance, the FSAR, whatever 9 it is, is not updated. It has old seismic 10 information.
11 JUDGE WARDWELL: Okay. Can I interrupt?
12 MR. SIPOS: Yes.
13 JUDGE WARDWELL: I didn't ask about the 14 UFSAR. I was going to get to that later. What I am 15 interested in now, what do you feel you need to make 16 the CLB ascertainable?
17 MR. SIPOS: We feel that the UFSAR, if I 18 could come back to that, is a building block. It is 19 a keystone in the CLB. And in bringing that right 20 back to 54.3, the definition of the CLB that we find 21 in the relicensing regulations, which informs New York 22 what the CLB is, there are parts, building blocks, 23 within that definition that just are not updated.
24 They are not current.
25 There are references to, for example, the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
59 1 general design criteria or suggest the general design 2 criteria that were proffered by the Atomic Industrial 3 Forum, a trade group, a lobby group.
4 The UFSAR says, "Well, that is what we 5 built the plant to." New York believes that is not an 6 appropriate standard for constructing two nuclear 7 power reactors. We have attempted to identify some of 8 the deficiencies in the UFSAR.
9 And if I could just pick up on a point 10 that Mr. Turk made, he discussed the statement of 11 considerations. We would call to the Board's 12 attention the 1995 statement of considerations for the 13 relicensing rule in which the NRC, the Commissioner 14 said, "The FSAR, the updated FSAR, is a very important 15 document. It assures consideration. It establishes 16 appropriate administrative and regulatory controls."
17 There is a plethora of documents, both by 18 industry and the NRC, that underscore the importance 19 of the UFSAR. Without an updated FSAR, we question 20 whether there is a current licensing basis for this 21 facility.
22 There are NEI documents. There is an NEI 23 document, NEI 98-03, revision 1. It reflects the 24 industry's quote, "Recognition of the importance of 25 the UFSAR." There is the NRC regulatory guide.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
60 1 These documents, for whatever reason, 2 these important documents, have not been maintained 3 and have not been updated. And we have submitted a 4 detailed declaration from David Lochbaum, who has 5 endeavored to review the documents in the public 6 document reading room in Rockville, that shows that 7 there are significant and substantive deficiencies in 8 these keystone documents that form the CLB.
9 JUDGE WARDWELL: Thank you.
10 CHAIRMAN McDADE: Ms. Sutton or Mr.
11 Bessette?
12 MS. SUTTON: Well, we obviously disagree.
13 There is a current licensing basis. One can ascertain 14 that by walking through the various elements specified 15 in 10 CFR section 54.3. That would include NRC 16 regulations, plant-specific design information, 17 docketed correspondence, responses to the NRC 18 bulletins and generic letters. That is all there, and 19 it is on the docket.
20 Furthermore, you are to look at the 21 license renewal application, which explains how that 22 information has been used, what is in scope, what 23 isn't in scope. And you can ascertain the current 24 licensing basis.
25 The applicant is in no way required to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
61 1 compile the current licensing basis. It can be 2 determined on an issue by issue basis.
3 CHAIRMAN McDADE: The position of the 4 State of New York, as I understand it, though, is 5 that, for example, Dr. Lochbaum of the Union of 6 Concerned Scientists at their behalf went through the 7 documents and have found gaps. It's not that it 8 hasn't been compiled but that there are certain gaps 9 of things that should be there that he couldn't find 10 in the records.
11 Now, doesn't that preclude us moving 12 forward with this?
13 MS. SUTTON: As specified in our answer, 14 Your Honor, we believe that the information that he 15 claims is missing is on the docket. And we specify 16 that in the answer as to where the information can be 17 found in docketed correspondence. So we disagree on 18 that point.
19 CHAIRMAN McDADE: Okay. Does that raise 20 a genuine issue, though? In other words --
21 MS. SUTTON: No, Your Honor. We believe 22 there is no basis for his statements. The information 23 is publicly available.
24 CHAIRMAN McDADE: Okay. So it's your 25 position that the papers that you submitted as an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
62 1 answer contradict unequivocally that Dr. Lochbaum has 2 said and that, therefore, a genuine issue does not 3 remain as to the completeness of the current licensing 4 basis?
5 MS. SUTTON: That is correct, Your Honor.
6 CHAIRMAN McDADE: Okay. From the 7 standpoint of New York, how do you respond to that?
8 MR. SIPOS: We believe that Dr. Lochbaum 9 set forth in great detail, not only in his declaration 10 but in the accompanying chart, the process by which he 11 followed, the documents he reviewed, the shortcomings 12 in the documents that he located. And we believe that 13 there is, at a minimum, a genuine issue of material 14 fact as to the current licensing basis, the UFSAR, and 15 also the commitments to the general design criteria.
16 There is data that is required to be in 17 the UFSAR. And there is a UFSAR that is part of this 18 license renewal application. And that document 19 tendered to the Commission last April, we believe and 20 we have set forth with particularity, the deficiencies 21 in it.
22 One deficiency is that it references 23 seismic information from the circa 1980. That's quite 24 a long time not to update it. I was trying to think, 25 what happened in 1980?
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
63 1 How far back was that? I looked for the 2 New York Times summary. The NRC was still considering 3 disposal at Carlsbad, New Mexico. That's a long time 4 ago. And that's the time frame in which some of the 5 seismic data in the UFSAR, which is part of the LRA, 6 is cited to.
7 CHAIRMAN McDADE: Okay. I understand 8 that. But, as I understand, the position of Entergy 9 is that there is a discernible current licensing 10 basis. You are saying that some of the data that 11 makes up what they consider the current licensing 12 basis, what the NRC staff considers the current 13 licensing basis is out of date. And, therefore, it 14 needs to be updated.
15 But their position also is that that is 16 not part of aging management, that, if anything, that 17 should be part of the day-to-day oversight by the NRC 18 of the operations and is, therefore, outside the scope 19 of this proceeding.
20 MR. SIPOS: The current licensing basis; 21 the UFSAR; the GDC, whatever the operable GDC, general 22 design criteria, are, that helps inform, as New York 23 understands it, the aging management review that is 24 the jumping-off point for license renewal to ensure 25 that the systems, structures, and components, all of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
64 1 them, all of the ones that are presently existing in 2 the facility, are examined.
3 And if modifications to the systems, 4 structures, and components are not reflected in the 5 UFSAR that accompanied the license renewal 6 application, that raises a genuine issue in New York's 7 view.
8 CHAIRMAN McDADE: Okay. One of the 9 things, since this particular case has been docketed, 10 today is really the first day that we have really 11 moved forward where the umpire has said, "Play ball" 12 and we have really started here.
13 We have had more motions in this case 14 prior to this point than I have seen in any other 15 case. And I wish one motion that they would have is 16 to change the name of the updated final safety 17 evaluation report because I don't know about anybody 18 else, but I stumble over UFSAR every time I try to say 19 it. And I wish we could come up with different 20 initials for it that would flow off the tongue a 21 little bit better. So if anyone is thinking of filing 22 a motion, there would be a good one that would be 23 entertained by the Board.
24 We would be interested in what our 25 authority is for doing that, but the Board would be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
65 1 sure, a tendency to do it. A lot of the acronyms 2 simply do not flow off at least my tongue.
3 One of the issues that you raise and as 4 you get started with an application for an extension, 5 you have an integrated plant assessment under 54.21.
6 And the question is, without an ascertainable current 7 licensing basis, how does one determine whether or not 8 the integrated plant assessment is adequate?
9 Am I correct that it is the position of 10 New York that it is impossible to make that 11 determination given the state of the record with 12 regard to the CLB?
13 MR. SIPOS: Yes, Your Honor.
14 CHAIRMAN McDADE: How does the staff 15 respond to that, Mr. Turk?
16 MR. TURK: We disagree.
17 CHAIRMAN McDADE: Okay. I understand 18 that. But why?
19 MR. TURK: Well, as I stated before, the 20 CLB is ascertainable. It just may take some digging 21 by the state. But if they have a complaint that the 22 updated FSAR -- maybe that is an easier acronym to use 23 -- that the updated FSAR is not complete, that is 24 really something that would be addressed under current 25 operations. It is not an issue unique to license NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
66 1 renewal.
2 So if they have a concern about that, that 3 is something that would be addressed or should be 4 addressed outside the scope of this proceeding. For 5 purposes of the license renewal, the applicant has the 6 burden when they submit their license renewal 7 application to lay out what are their aging management 8 plans submitted in accordance with regulations and how 9 they relate to the current licensing basis.
10 It's up to the state if they have a 11 concern that there is some part of the CLB, the 12 current licensing basis, that is not addressed to 13 identify what that is, rather than to say, "We can't 14 tell."
15 CHAIRMAN McDADE: But how do they do that 16 if they can't tell?
17 MR. TURK: By going back through the 18 records, the same as the staff would do and as the 19 applicant would have to do if they were pressed on a 20 specific issue. They would then have to say how one 21 issue or another was addressed, 22 MS. SUTTON: You go through it issue by 23 issue. And, again, you use 54.3 as you guide, and you 24 find the information. It is on the docket. And it 25 most certainly is ascertainable.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
67 1 JUDGE WARDWELL: Could you elaborate a 2 little bit on with regards to the example that New 3 York State has provided in relationship to the age of 4 the seismic data, for instance? As I understand what 5 they're saying, that makes it not updated. It's 6 incomplete. What is your response to that particular 7 example?
8 MS. SUTTON: We believe that they disagree 9 with the seismic design basis of the plant. That is 10 currently codified by part 50. It is outside the 11 scope of this proceeding. And it is evident in the 12 current licensing basis.
13 They have identified the pre-GDC that 14 applies to this plant. They disagree with them. But 15 they are in the current licensing basis. They are 16 simply outside of scope.
17 JUDGE WARDWELL: Well, wouldn't using that 18 old data say that it isn't a very updated final safety 19 analysis report if it's using data that is that old?
20 MS. SUTTON: No, Your Honor. There is an 21 updated final safety analysis report on the docket.
22 It is based on that design basis information that was 23 developed when the plant was licensed originally, but 24 it is not currently open to argument in the license 25 renewal proceeding per the Commission's part 54 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
68 1 regulations that have excluded the current licensing 2 basis information from the pack essentially.
3 JUDGE WARDWELL: What is updated in an 4 updated final safety analysis report?
5 MS. SUTTON: The information in there is 6 updated per 50.71(e) on an annual basis. And it is 7 information pertaining to various technical 8 specifications associated with plant operations.
9 JUDGE WARDWELL: Thank you.
10 CHAIRMAN McDADE: Okay. Assume for the 11 sake of argument that the report is inadequate, that 12 the final safety analysis report is in adequate. What 13 you are saying is, even if it is, it is outside the 14 scope of this proceeding.
15 What would an applicant, an interested 16 party, do if they were of the view that it had not 17 been updated properly, that the data was irrelevant, 18 that the data was erroneous? What would they do since 19 you are saying that they cannot raise it in the course 20 of the licensing renewal proceeding?
21 MS. SUTTON: As it pertains to current 22 plant operations, they can under part 50 seek 23 enforcement action per 2.206, for example, Your Honor, 24 but it would be in current licensing space.
25 CHAIRMAN McDADE: Now, that has to do with NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
69 1 the current operation of the plant. But what New York 2 I think is also saying is that without having that 3 updated current operating basis, we can't make a 4 determination, we can't assess the adequacy of the 5 aging management plans that Entergy has put forward.
6 How do you respond to that?
7 MS. SUTTON: The distinction here is that 8 the NRC believes that the seismic information, for 9 example, currently in the licensing basis is adequate 10 for purposes of plant operation, including license 11 renewal, per part 54, as the rules are written.
12 CHAIRMAN McDADE: Again, they think it's 13 adequate. The staff thinks it's adequate. You think 14 it is adequate. New York doesn't think it is 15 adequate.
16 MS. SUTTON: But it is beyond the scope of 17 this proceeding to change the underlying regulation.
18 CHAIRMAN McDADE: But doesn't that -- and 19 we're talking about seismic. And we will get into the 20 individual contentions later, and that is one of the 21 individual contentions. But assuming the seismic 22 data, as it currently exists, demonstrates that there 23 is a real possibility of a more significant termor 24 than was anticipated, doesn't that affect the aging 25 management plans as well as the current operating NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
70 1 basis?
2 Wouldn't you have to modify your aging 3 management plans to adjust for the actual seismic 4 conditions as known? And if you didn't do that, isn't 5 the aging management plan inadequate? And doesn't 6 that bring what New York has said within the scope of 7 this proceeding?
8 MS. SUTTON: To the extent that a change 9 were necessary, it would begin in part 50 space, 10 current operating space. And if the current licensing 11 basis were modified in some way, then yes, we would 12 have to go in and modify the application later in 13 time.
14 But the application doesn't drive the 15 current licensing basis. The current licensing basis 16 drives the application. In this case, we have used 17 the current licensing basis. If the bases change, 18 then we examine the need for change under 54.37(b) and 19 make changes accordingly.
20 CHAIRMAN McDADE: Okay. And, again, by 21 way of a preliminary issue here before we actually get 22 into the contentions, there is an issue as to the GDC, 23 the general design criteria.
24 Let me, first of all, ask Entergy. And we 25 have had various discussions here as to what general NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
71 1 design criteria the plant was constructed under.
2 There was a draft NRC in 1967. There was 3 a final NRC in 1971. There was an industry -- and at 4 that time, I believe it was the AIF in 1971, yes, 5 1971.
6 Which are we dealing with? What general 7 design criteria informs our discussion here? Is it 8 the NRC '67 draft? Is it the AIF from, I believe, 9 October of '71?
10 MS. SUTTON: Yes, Your Honor, it is the 11 pre. Our plants are not licensed to appendix A to 12 part 50, those GDC. It is the prior GDC, which were 13 the AEC published in July of 1967. And it was 14 determined in 1982 that Indian Point 2 is in 15 compliance, even with the current GDC.
16 JUDGE WARDWELL: Can you speak a little 17 louder? It is hard to hear you up here.
18 MS. SUTTON: Yes, Your Honor. It is the 19 1967 general design criteria. As the plants were 20 licensed, they were issued construction permits after 21 May 21st, 1971. So they are not subject to the GDC 22 that are in appendix A to part 50. They were designed 23 to the pre-GDC, which were published in July of 1967.
24 JUDGE WARDWELL: Who pushed those in '67?
25 MS. SUTTON: It was the Atomic Energy NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
72 1 Commission.
2 CHAIRMAN McDADE: And that one, though, in 3 '67 was a draft, correct?
4 MS. SUTTON: Correct, Your Honor.
5 CHAIRMAN McDADE: Okay. Let me ask, does 6 it make any difference for our purposes here which 7 general design criteria we are under? Isn't that part 8 of the COL outside the scope of this proceeding?
9 MS. SUTTON: It is part of the CLB --
10 CHAIRMAN McDADE: I'm sorry.
11 MS. SUTTON: -- and outside the scope of 12 this proceeding, yes. So it does not matter.
13 JUDGE LATHROP: You just said that you 14 meet the criteria of the 1971 GDC.
15 MS. SUTTON: For Indian Point unit 2, 16 there was a determination made in 1982 that they meet 17 the current GDC as well.
18 JUDGE WARDWELL: Let me ask the NRC staff, 19 does the NRC keep the GDC for each reactor in a 20 readily accessible place?
21 MR. TURK: We know what the proposed GDCs 22 were in July '67. And we know what the Atomic 23 Industrial Forum proposed as modifications to those 24 draft GDC.
25 The UFSAR, as I understand it, actually NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
73 1 references the Atomic Industrial Forum proposed 2 revisions to the draft GDC as the basis for the 3 plant's design. In fact, maybe the best way to look 4 at it logically is that the draft GDC published in 5 July 1967 formed the basis for what the AIF, the 6 Atomic Industrial Forum, then came in with as a 7 proposed modification to those draft GDC. And it's 8 that AIF, proposed modification to the draft GDC, that 9 is referenced in the updated FSAR for Indian Point.
10 I would like to address one other 11 question.
12 JUDGE WARDWELL: What year was that?
13 Sorry to interrupt.
14 MR. TURK: It was also 1967, I believe 15 October.
16 I would like to address one other point.
17 Ms. Sutton stated that if the current licensing basis 18 were to change, then the accident would come in under 19 54.37, I believe she referenced, and change the 20 application, if I am not mistaken.
21 MS. SUTTON: The updated.
22 MR. TURK: The updated. Actually, I 23 believe the correct reference would be 54.21(b), which 24 states that CLB changes, current licensing basis 25 changes, during NRC review of the application would NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
74 1 then be examined by the applicant. And the applicant 2 would have to then update its license renewal 3 application to address any changes in the CLB.
4 So, coming back to your question about the 5 seismic information that the state has presented, if 6 that information were to change the current licensing 7 basis for the plant and a license renewal application 8 has not yet been granted, then the LRA, the license 9 renewal application, would have to be modified to 10 address the new change to the CLB.
11 JUDGE WARDWELL: And what is the mechanism 12 for a petitioner to request that a review be made of 13 the seismic information to see whether or not it is 14 warranted to update the current licensing basis?
15 MR. TURK: As the Commission stated, 16 matters that are pertinent to both current operations 17 and license renewal, extended period of operation, 18 would be addressed under current operations. So they 19 could come in with, as Ms. Sutton suggested, a request 20 for enforcement action under 10 CFR 2.206 or they 21 could submit the information to the staff and ask for 22 it to be considered in a more informal nature.
23 JUDGE WARDWELL: Can you elaborate a 24 little bit more on that latter process, this informal 25 nature? What happens with that? So they send a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
75 1 letter to you saying, "Hey, this is all seismic data.
2 It ought to be updated." Then what happens?
3 You say you ignore it or you say, "Yes, it 4 does" or "No, it doesn't"? What are the various 5 options that occur after that has been submitted?
6 MR. TURK: Well, I would have to wait to 7 see if there is such a submittal, but in general if a 8 matter is submitted to the staff for consideration, we 9 would give it a first glance to see, is this something 10 that affects current safety, whether we believe it 11 needs to be considered further. And we might then 12 enter into discussions with the state to talk about 13 the information they present.
14 JUDGE WARDWELL: How would this be 15 addressed under an enforcement action? I don't 16 understand how that would take place. If, in fact, 17 it's merely objecting to the basis of which seismic 18 analyses are being run, it seems to me it wouldn't fit 19 neatly into an enforcement action very well.
20 MR. TURK: They would come in with a 21 petition under 2.206. The NRC staff would then 22 establish a petition review board, where there would 23 be formal consideration of the petition itself.
24 JUDGE WARDWELL: Thank you.
25 JUDGE LATHROP: Back to the question I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
76 1 asked. You said that the general design criteria 2 could be found in the updated FSAR, the ones that 3 apply to Indian Point 2 and 3. Is that what you said?
4 MR. TURK: I believe the answer is yes.
5 I have not looked at the updated FSAR to tell you 6 specifically for each criterion, are they mentioned 7 there or not, but there is a general reference in the 8 updated FSAR to the AIF, Atomic Industrial Forum, 9 proposed modifications to the draft GDC.
10 And I would reiterate something that Ms.
11 Sutton stated. And that is that for nuclear power 12 plants whose construction permits were issued before 13 May of 1971 -- and there were 64 plants in that 14 situation. I believe the number is 64, if not 67.
15 All of those plants had construction 16 permits issued before 1971. And they are not obliged 17 to conform to the current final GDC that was set out 18 in 10 CFR part 50, appendix A.
19 So that is not just unique to Indian 20 Point. That is unique to half the nuclear power 21 plants operating in this country.
22 JUDGE LATHROP: May I ask Entergy, what 23 was the date of the most recent updated FSAR?
24 MS. SUTTON: One moment, Your Honor. I 25 will have to confer with an Entergy representative.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
77 1 (Pause.)
2 CHAIRMAN McDADE: Well, while Mr. Bessette 3 is checking that, can we move on? Do you have 4 anything else on that?
5 JUDGE LATHROP: No, sir.
6 MR. BESSETTE: Your Honor, subject to 7 confirmation, I believe it is October of 2006 for unit 8 2 and October of 2007 for unit 3. It is our 9 understanding it is done six months after each outage.
10 CHAIRMAN McDADE: Okay. Thank you.
11 One of the issues having to do with 12 contention 1 had to do with the completeness of the 13 license renewal application. And there was a notation 14 by the State of New York in that regard that the 15 appropriate step for us would be for us to suspend 16 these proceedings until a complete or a more complete 17 application was submitted.
18 I guess the first question would be, what 19 authority does the State of New York point to that 20 would give us the authority to suspend the proceeding?
21 MR. SIPOS: Your Honor, the State of New 22 York believes that as constituted this Atomic License 23 Safety Board has the inherent authority to issue such 24 an order. In our papers we cited, I believe, NRC case 25 law to that effect as well.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
78 1 Another option would be to deny the 2 application or we have also asked for a determination 3 as the completeness and New York would also suggest 4 that the provisions of the Administrative Procedure 5 Act which if certain prerequisites are satisfied could 6 extend a current permit that there be a finding that 7 that provision does not apply here, does not apply and 8 the unit it would affect first would be Unit 2 in that 9 they do not have the entitlement to that safe harbor.
10 CHAIRMAN McDADE: At this point, I believe 11 also you cited 2.319 for our authority to suspend 12 which is our general authority to conduct hearings in 13 an orderly way. But one of the questions I have, and 14 again denying the application obviously if we 15 suspended it that would be a different option to 16 denying it and if we suspended it, we wouldn't get 17 that far, is what would happen if we did suspend it 18 as currently situated right now that I believe under 19 2.101 the staff has docketed it. The staff has found 20 the application administratively to be complete.
21 And as I further understand it at this 22 point in time given the fact that the application was 23 submitted and docketed more than five years prior to 24 the time that the original license to expire that that 25 license would continue until this matter is resolved.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
79 1 So if we were to suspend this proceeding, wouldn't 2 that just simply effectively grant the license renewal 3 without a hearing?
4 MR. SIPOS: No, Your Honor, it would not 5 and I'd like to explain if I may. The determination 6 that was made at the end of last July, July 2007, was 7 a determination by staff and in reading the letter or 8 reading the determinations that issued at that time, 9 staff did not make a determination under the 10 Administrative Procedures Act. Moreover, even if they 11 had, that would only be the opinion of staff. It is, 12 we submit, not the final word on behalf of the 13 Commission.
14 The staff going back to their letters and 15 their communications at the end of July after we wrote 16 and said we think there are deficiencies in the 17 application, following up on a comment that Mr. Turk 18 might have made or did make, excuse me, the staff 19 found that there was sufficient -- the staff found 20 that it could proceed with its review. But it did not 21 make a determination that's binding on the Commission 22 and that is what we seek to litigate here.
23 We have identified deficiencies in our 24 first contention, Contention 1, and we suggest that 25 this Board has the authority to review that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
80 1 contention, that completeness, are the required 2 reports, analyses and studies presented, and under its 3 authority make a determination on that. In short, 4 staff's determination at the end of the July is in no 5 way binding on the Board, on the Commission, nor does 6 it grant Entergy the safe harbor under the 7 Administrative Procedures Act.
8 CHAIRMAN McDADE: Assume for the sake of 9 argument, and again I'm not -- we have no opinion on 10 this at this point in time, but assume for the sake of 11 argument that we felt that we did have authority under 12 2.319 to suspend the proceeding. We don't have the 13 authority to direct the Commission. Would New York 14 not necessarily be let in a situation where the 15 license would continue? Just based on the NRC 16 regulations it would continue until there was either 17 further action by the Commission or by this Board if 18 we were to suspend.
19 MR. SIPOS: I believe the answer is no 20 because there is no finding yet by any entity within 21 the NRC, be it staff, this Board or the Commission, 22 that the application is complete and accurate.
23 CHAIRMAN McDADE: Okay, but is that 24 required under the regulation? Isn't the situation 25 basically saying as I read the regulation, "We don't NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
81 1 want to be making these decisions at the last minute."
2 Likewise, we don't want the Applicant to be in a 3 situation where a delay that has nothing to do with 4 what they do whether the delay is the result of 5 something that the staff does, that the Board does, of 6 being in a position where they have to seize 7 operations. So they have said, "Submit your 8 application at least five years prior to the time that 9 the license is up for renewal and if you do that 10 you're covered." Your license will stay until the 11 Commission, and again, all the aspects of Commission, 12 the staff, the Commission itself, the Licensing Board, 13 until they resolve this matter and either grant the 14 extension, deny the extension, or condition the 15 extension and haven't at this point in time they've 16 done enough to -- They have their application 17 docketed. Isn't that all they need under the 18 regulation?
19 MR. SIPOS: In short, the answer is no.
20 That is not enough and the scenario which you propose 21 assumes a timely, complete and sufficient application.
22 It's one thing if in the process an issue were to 23 present itself. Down the road, staff said, "Here's a 24 new issue that's coming up. Let's look at it."
25 It's another thing when the Applicant NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
82 1 knows going into the process that there is an issue, 2 that there's a deficiency or that with respect, for 3 example, with embrittlement and the cumulative usage 4 factor issue and going in with an application that it 5 should have reason to believe is not necessarily 6 sufficient or complete and New York submits that's one 7 example of what's happened here that the proposal for 8 CUF is inappropriate. It's not a proposal at all.
9 So for that safe harbor to exist under the 10 scenario that you propose, there must be a complete 11 and sufficient application and New York here is 12 saying, "There is not a complete and sufficient 13 application."
14 CHAIRMAN McDADE: There's not going to be 15 a determination as to whether the application was 16 complete and sufficient until after we have a hearing 17 and isn't the whole purpose of this regulation to 18 allow the Applicant not to be just out there hanging 19 in the breeze while we're going through the hearing 20 process? Hasn't the determination of the staff to 21 docket the application been a sufficient finding in 22 order to apply the Applicant to benefit of this safe 23 harbor?
24 I just want to make sure I understand if 25 we were to agree that a suspension would be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
83 1 appropriate what could necessarily flow from that?
2 MR. SIPOS: We believe that if a 3 suspension was a remedy that the Board or the 4 Commission elected that in this case it would not 5 provide the safe harbor and I would respectfully refer 6 the Board's attention to 10 CFR Section 2.109, I 7 believe, (b). If I could just read it.
8 CHAIRMAN McDADE: I'm sorry. 109?
9 MR. SIPOS: I'm sorry. I was looking 10 down. 2.109(b) and if I may read it, it says, "If the 11 licensee of a nuclear power plant licensed under 10 12 CFR 50.21(b) or 50.22 files a sufficient application 13 for renewal of an operating license at least five 14 years prior to the expiration of the existing license, 15 the existing license will not be deemed to have 16 expired until the application has been finally 17 determined." And New York is focusing on "sufficient 18 application."
19 JUDGE WARDWELL: And how is "sufficient" 20 defined and who determines that?
21 MR. SIPOS: I believe this in instance, in 22 the first instance, as New York has raised this 23 contention, the Board can make that determination and 24 New York has attempted to identify deficiencies, to 25 identify factors, that would support or could support NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
84 1 the Board ruling that this application which came in 2 in April was woefully deficient.
3 JUDGE WARDWELL: Staff, what did you use 4 in evaluating and deciding that you could docket this 5 application?
6 MR. TURK: The staff's standard, the 7 standard that's set up under law for the staff to 8 consider, is whether the application is sufficiently 9 complete to be docketed and we cite to this at pages 10 26 and 27 of our response to the state's contention.
11 The staff considers the regulations and the 12 application and determines whether the Applicant has 13 submitted the information required by regulation 14 sufficiently for the staff's review to be conducted in 15 a meaningful manner.
16 We don't require that every bit of 17 information be final or that the application be 18 totally complete. As the Licensing Board is aware we 19 go through a process with all applications whereby we 20 submit requests for additional information and the 21 application may be supplemented as a result of the 22 responses that we get in response to our RAIs, an 23 acronym.
24 JUDGE WARDWELL: And yet what New York 25 just alleged that the word "sufficient" in 109(b) is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
85 1 really different than your "sufficiently complete" 2 that you use for docketing if I understand what their 3 position is. Could you say your position on that?
4 MR. TURK: It's a matter -- There is no 5 concise, crisp definition of sufficient. The test is 6 whether the staff determines in its discretion that 7 the application is sufficiently complete for its 8 review to commence and that is a matter that is left 9 from the Commission to the staff to determine and as 10 numerous cases have held it's beyond the authority of 11 the Licensing Board to question or determine 12 otherwise.
13 JUDGE WARDWELL: But we could judge on 14 whether or not it's a sufficient application in 15 accordance to 109(b) without violating your 16 determination that it was sufficiently complete when 17 you docketed it.
18 MR. TURK: Your determination in this case 19 will be whether the application is sufficient in a 20 legal sense, does it mean the requirements of the 21 regulations to be granted but not to be docketed and 22 for the review to commence.
23 JUDGE WARDWELL: So if I understand what 24 you just said, you would agree with New York State 25 that the word "sufficient" under 109(b) is up to us in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
86 1 regards to whether or not it meets the requirements 2 and at any point that we determine it's not sufficient 3 we can suspend the hearing. Is that your position 4 also?
5 MR. TURK: No. No, definitely not because 6 the sufficiency there has to do with sufficient for 7 review, not sufficient for granting.
8 JUDGE WARDWELL: And where do you see that 9 in the 109(b)?
10 MR. TURK: 109(b) does not address that.
11 That is how the regulation has been interpreted and 12 applied in Commission case law.
13 JUDGE WARDWELL: And what case law is 14 that?
15 MR. TURK: In our brief, we cite to --
16 JUDGE WARDWELL: I understand case law in 17 regards to you docketing it for completeness and now 18 focusing whether or not the sufficient application 19 under 109 has been evaluated under case law.
20 MR. TURK: The Commission addressed this 21 specifically in the 1991 Statement of Consideration by 22 which we cited page 27 of our brief. At 56 Fed. Reg.
23 page 64963, the Commission stated that "the Commission 24 discourages filing of pro forma renewal applications 25 that would be filed simply for the sake of muting the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
87 1 10 CFR 2.109(b) deadline. However, a determination 2 that an application is sufficient for purposes of 3 timely renewal would not be litigable. Sufficiency is 4 essentially a matter for the staff to determine based 5 upon the required contents of an application 6 established in Sections 54.19, etc."
7 JUDGE WARDWELL: How would you respond to 8 that, New York State?
9 MR. SIPOS: The Statement of 10 Considerations that Mr. Turk refers to does inform New 11 York's position here and indeed there should not be a 12 pro forma filing of applications just to meet the 13 deadline in 2.109. Moreover, the Statement of 14 Considerations refers to required reports and 15 analyses. New York here submits that the required 16 reports and analyses were not submitted.
17 Moreover, in the series of letters that 18 went out last July, July 25, 2007, to the New York 19 State Attorney General's Office and to Entergy, staff 20 said that it found that it would proceed with its 21 review but it didn't not cite 10 CFR 2.109(b) in those 22 letters either to our office or to Entergy. That is 23 an issue that this Board may take up.
24 CHAIRMAN McDADE: Okay. But let's go back 25 a second. I mean, the first issue there and they were NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
88 1 talking about sort of a pro forma application, when 2 the staff makes a determination to docket it under 3 2.101 they've made a determination that it's not 4 simply a pro forma application.
5 Now it may or may not be sufficient. Down 6 the road, we may or may not determine as a matter of 7 law that the application is sufficient and can be 8 granted. But isn't the whole purpose of 2.109(b) 9 allowing this safe harbor as it were to protect the 10 Applicant. If the Applicant puts forth a good faith 11 application, not a pro forma application, the staff 12 makes a determination that it meets the requirements 13 for docketing under 101, then the Agency goes through 14 the process of reviewing it, initially with the staff 15 review, ultimately having the review passed through 16 the Board, ultimately to the Commission, but that the 17 Applicant shouldn't be left in a position if that 18 takes a long time. If the staff is slow, if the Board 19 is slow, if the Commission is slow, they even though 20 they've submitted a sufficient application again they 21 just haven't had the imprimatur. We haven't gotten to 22 the point of ruling one way or the other. They get to 23 stay in operation until it's determined one way or the 24 other whether it's efficient.
25 And again, my question is if that's the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
89 1 case, if we were to suspend, doesn't that do just the 2 opposite of what New York is wanting which is it 3 prevents us ultimately from reaching the issue of 4 whether it is sufficient in a timely manner. It 5 continues the operation of the plant indefinitely and 6 at that point they have no incentive to submit another 7 application, a more complete application, because they 8 can keep going indefinitely.
9 MR. SIPOS: I believe the Board could 10 always order them to remedy the deficiencies and I 11 think Your Honor's question goes to a larger issue of 12 perhaps crosscutting many facilities across the 13 country. But New York's position is with respect to 14 the application here for Indian Point that Entergy's 15 application was not sufficient and at 2.109 which the 16 staff did not cite to in its docketing letter that 17 that allows this Board to make that determination and 18 there's been no finding by the staff in any way under 19 2.109(b).
20 Moreover, to address the concern about 21 that this could continue on indefinitely, if there was 22 a finding that it was not sufficient in this case, and 23 again not addressing sort of the larger policy issues 24 but in this case, if there was a finding that the safe 25 harbor did not apply, that would be direct incentive.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
90 1 Entergy would have a very pointed incentive to get its 2 application up to code, up to snuff, so to speak and 3 so that we would not be in a situation where it 4 dragged on indefinitely.
5 New York, to be sure, has a concern about 6 that, but we believe a finding that it is not 7 sufficient under 2.109 would send a very clear message 8 that more needed to be done here and would move this 9 process forward actually.
10 CHAIRMAN McDADE: Okay. Thank you. From 11 Entergy's standpoint, Ms. Sutton, Mr. Bessette, Mr.
12 O'Neill.
13 MS. SUTTON: We just believe there is a 14 very clear distinction between the staff's 15 docketing/sufficiency review in which they basically 16 determined that the application had the reasonable 17 amount of information sufficient to commence the 18 staff's review. They were not at that point saying 19 that the application was sufficient upon which to 20 issue a renewed license.
21 That's the purpose of this proceeding.
22 You can determine that for some reason the application 23 is not sufficient to support issuance of license, but 24 the initial sufficiency review is not subject to 25 challenge in this proceeding. We, too, have cited NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
91 1 multiple cases in our answer, in particular, Baltimore 2 Gas and Electric, that that initial sufficiency review 3 is not open to challenge here.
4 And then, yes, Judge, if, in fact, 5 hypothetically there was a suspension and we believe 6 there is no basis for a suspension given that we have 7 docketed a sufficient application we would continue to 8 operate under the timely renew doctrine.
9 CHAIRMAN McDADE: What is your view? Do 10 we have the authority to order a suspension?
11 MS. SUTTON: In this case, the standard is 12 that it's a drastic action and it's not warranted in 13 the absence of immediate threats to public health and 14 safety and we believe those situations are -- that 15 standard is not met in this case and therefore there 16 is no basis upon which to suspend the proceeding and 17 in that case the standard is set forth in the Vermont 18 Yankee. It's Commission Case CLI-00-20.
19 CHAIRMAN McDADE: Mr. Turk, anything 20 further?
21 MR. TURK: Yes, sir. I would simply 22 respond to the State's claim that the staff did not 23 cite 2.109(b) in its correspondence as irrelevant.
24 There's no obligation that we cite regulations when we 25 write to a petitioner or to a state how is interested NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
92 1 in intervening. We don't have to cite regulations.
2 In fact, the Federal Register notice 3 states the information that's necessary. On August 1, 4 2007 at 72 Fed. Reg. 42134 the staff published the 5 notice of acceptance of docketing of the Indian Point 6 license renewal application and in that notice the 7 following statement appears, "The Commission staff has 8 determined that Entergy Nuclear Operation, Inc. has 9 submitted sufficient information in accordance with 10 10 CFR Sections 54.19, etc., to enable the staff to 11 undertake a review of the application and the 12 application is therefore acceptable for docketing."
13 The notice went on to state that "The determination to 14 accept the license renewal application for docketing 15 does not constitute a determination that a renewed 16 license should be issued and does not preclude the NRC 17 staff from requesting additional information as the 18 review proceeds."
19 In essence, the staff exercised its 20 discretion to determine that the application was 21 sufficiently complete to be docketed under 10 CFR 22 2.109(b) regardless of whether the regulation was 23 specifically cited and the staff then proceeded to 24 docket the application. This if you suspend the 25 proceeding would has Judge McDade pointed out NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
93 1 essentially just continue the term of the existing 2 license and I think that's something that state wants 3 to probably avoid. But that would be the effect of 4 the Board's suspension of a proceeding. But I would 5 add there would be no grounds for the suspension in 6 any event because the determination to docket is a 7 staff determination.
8 CHAIRMAN McDADE: Anything further from 9 New York on this issue, sir?
10 MR. SIPOS: Yes, just briefly, Your Honor.
11 New York submits that if the staff were going to make 12 a finding under 2.109(b) that it is incumbent upon 13 staff to cite that provision and to make that ruling 14 clearly and I don't believe the excerpt that Mr. Turk 15 just read to the Board contained that finding.
16 Moreover, one other aspect or one other 17 response to Your Honor's suggestion about the concern 18 about it continuing on, New York would be prepared to 19 bring on a motion for summary deposition. If this 20 contention is sustained at the contention 21 admissibility stage, New York would be prepared to 22 bring on a motion for summary deposition very promptly 23 and to put the issue in specifically on the issue of 24 2.109(b) so that that could be decided right up front 25 and if the determination was made that it was not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
94 1 sufficient, that would certainly ensure that this 2 matter did not drag on.
3 CHAIRMAN McDADE: Thank you. Anything 4 further on this?
5 JUDGE WARDWELL: It's already late to 6 general and I can do it quickly.
7 But earlier on, you mentioned in regards 8 to alternatives besides a suspension that the Board 9 could deny the license. That isn't your contention 10 though, is it here? Your contention specifically 11 relates to suspension and not any other action by this 12 Board. Correct?
13 MR. SIPOS: I believe that is correct. It 14 would be a remedy that the Board would have as part of 15 its authority.
16 JUDGE WARDWELL: But it's nothing to do 17 with this contention, that particular remedy.
18 MR. SIPOS: I believe that is correct.
19 JUDGE WARDWELL: We are talking about the 20 suspension.
21 MR. SIPOS: And its sufficiency.
22 CHAIRMAN McDADE: But you have 30 other 23 contentions that say we should deny it.
24 MR. SIPOS: That is correct, Your Honor.
25 CHAIRMAN McDADE: Okay.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
95 1 JUDGE WARDWELL: Thirty-one.
2 (Laughter.)
3 JUDGE WARDWELL: Let me just raise this 4 because it was something we were going to talk about 5 earlier in general. In this contention and in other 6 contentions, you have a contention and then you have 7 bases with this. What is your opinion of what this 8 Board is adopting? Are we adopting intention or the 9 bases? And if there's a dichotomy or a difference 10 between the two which do we place our emphasis on in 11 your opinion?
12 MR. SIPOS: New York respectfully submits 13 that if the Board were to adopt a contention that 14 contention is informed by the bases and the additional 15 -- that it is informed by the bases, but that it is 16 the contention or how the Board frames the contention.
17 JUDGE WARDWELL: If there are small 18 variations that differ between the bases and the 19 contention which rules? Which has the most weight?
20 MR. SIPOS: The bases are an elaboration 21 and do flesh out and inform the contention if there 22 was a -- I believe it's difficult to parse one out 23 without the other. I'm not sure if there's an exact, 24 if there's a specific, instance that --
25 JUDGE WARDWELL: Yes, I'll get to it when NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
96 1 we get to those individual ones.
2 MR. SIPOS: -- you're referring to.
3 JUDGE WARDWELL: I just wanted to raise it 4 as a general issue and get some discussion on it now 5 and then we'll cover each one.
6 MR. SIPOS: The bases flesh out the scope 7 or the intent of the contention.
8 JUDGE WARDWELL: So, in essence, you'd say 9 -- It sounds like you're saying or as I hear you say 10 or I'm interpreting what you're saying is that you 11 would take the position that it would depend upon the 12 individual contention if there is a small variation 13 between the bases and the contention on how the Board 14 could and should rule on that.
15 MR. SIPOS: Yes, I think so, Your Honor.
16 JUDGE WARDWELL: Entergy, what's your 17 opinion of that?
18 MR. BESSETTE: Your Honor, if you could 19 clarify the question.
20 JUDGE WARDWELL: When the Board adopts a 21 contention, if we do adopt any here, but let's say if 22 there is one that is adopted, are we adopting the 23 contention or the bases and specifically in 24 relationship to if there is variations between what's 25 stated in the contention and that which is stated in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
97 1 the bases, which is the one that carries the most 2 weight?
3 MR. BESSETTE: Your Honor, we believe it's 4 the contention.
5 JUDGE WARDWELL: Thank you.
6 JUDGE WARDWELL: Staff, what is your 7 opinion?
8 MR. TURK: I would say if there was a 9 direct conflict the contention would be the one to 10 look at. But I would also note that the bases define 11 the scope. I think the State made a similar point.
12 Mr. Sipos' words were that the bases flesh out the 13 scope of the contention and, in fact, they define the 14 scope of the contention.
15 So when you rule upon contentions, you 16 would be considering those bases statements. If the 17 State later wanted to add different theories in 18 support of contention, you would look to see is that 19 within the scope of the bases as presented and 20 supported in the contention.
21 JUDGE WARDWELL: In this particular 22 example, when they raised the potential of us denying 23 the application, if in fact that was one of -- in 24 their bases or in their discussion of it as they were 25 fleshing it out which it wasn't in the writing, I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
98 1 didn't see anything in the writing, he just mentioned 2 it here today and he has clarified that he didn't mean 3 it to relate to this contention, so it's not an issue 4 here, but if, in fact, he had written it also or said, 5 "Yes, it is part of this contention" and wants it to 6 be considered part of it, it's not stated in the 7 contention. So there's a real dichotomy there that 8 the contention would hold. We're ruling only on the 9 suspension of the license and not any denial of the 10 license in this particular case.
11 MR. TURK: In fact, I think there is that 12 dichotomy. I recall seeing there was a request both 13 to suspend and grounds for denial. But I think the 14 thrust of the contention is suspension.
15 JUDGE WARDWELL: I'm sorry. That raises 16 that. Thank you.
17 CHAIRMAN McDADE: Before we proceed 18 further, one administrative matter just to make sure 19 you all know. We anticipate going until about 5:00 20 p.m. We're told that basically that's the point where 21 for security reasons and administrative reasons in 22 this building that we should wrap it up. We 23 anticipate taking a break for lunch of about one hour 24 sometime during the course of the day. It's now about 25 12:00 noon.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
99 1 Does anybody have any strong feeling? I 2 don't know. Some people may need to eat. I'm happy 3 to move on but at the same period of time, I don't 4 want somebody who has a need to go out and get 5 something to eat as opposed to passing out to feel 6 it's difficult to go on. Does anybody want to keep 7 going for at least another half an hour or do you want 8 to break now? New York?
9 MR. SIPOS: Your Honor, we suggest that we 10 push on.
11 CHAIRMAN McDADE: Okay. Mr. Turk?
12 MR. TURK: We have varied opinions.
13 (Laughter.)
14 JUDGE WARDWELL: I think this panel, this 15 Board, has various opinions also and why I don't 16 necessarily have to eat, there are other reasons to 17 break at this time.
18 (Laughter.)
19 MR. TURK: I can support that.
20 CHAIRMAN McDADE: That may well inform my 21 decision. Does anybody have any strenuous objection 22 then, it's now 12:00 noon, that we break until 1:00 23 p.m.? New York?
24 MR. SIPOS: Let's break.
25 CHAIRMAN McDADE: Mr. Turk?
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
100 1 MR. TURK: That's fine with us.
2 MR. BESSETTE: That's fine.
3 CHAIRMAN McDADE: Okay. So we'll start 4 again promptly at 1:00 p.m. Thank you. Off the 5 record.
6 (Whereupon, at 12:01 p.m., the above-7 entitled matter recessed to reconvene at 1:15 p.m. the 8 same day.)
9 CHAIRMAN McDADE: On the record. A couple 10 of issues were raised before lunch. One of the issues 11 had to do with the temperature of the room.
12 Hopefully, we have gotten steps taken to raise the 13 temperature at least by a few degrees during the 14 course of the afternoon.
15 The other had to do with the acoustics.
16 Although it was possible for us on the Board to hear 17 counsel and counsel to hear us, it was difficult for 18 individuals are spectators to hear what was going on.
19 During the course of the lunch hour, we were able to 20 secure microphones. I would ask counsel to try to 21 speak directly into the microphone so to the degree 22 practicable everybody who has taken the effort to come 23 here and observe the proceeding will be able to hear 24 everything that is going on and will be able to 25 understand the positions taken by New York and by the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
101 1 NRC staff and by the Applicant. Yes?
2 MS. MATTHEWS: I just have a question 3 about the microphones. Apparently, there's not one 4 here for us at this table. So how would Your Honor 5 like us to proceed on that?
6 CHAIRMAN McDADE: There are two things 7 and, first of all, I would note that at least from our 8 staff the individuals from New York were the people 9 who could be heard by everybody.
10 (Laughter.)
11 CHAIRMAN McDADE: And it was only the 12 people from out of town that were somewhat more meek 13 and mild. The acoustics are not terrible. They're 14 just bad. So what I would ask is if you don't have 15 ready access to a microphone every time, we're going 16 to be asking questions and going back and forth and it 17 really isn't practicable to be shifting all the time.
18 So I would ask that if an individual who doesn't have 19 ready access to a microphone is going to be responding 20 if you could just stand. Because generally speaking, 21 if you stand, I think that probably will (1) people 22 tend to speak a little bit louder when they stand and 23 (2) also it will make it a little bit easier for the 24 people in the back to be able to hear what you have to 25 say and hopefully that will allow us to proceed in an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
102 1 expeditious manner and at the same period of time make 2 sure that people who are present will be able to hear 3 what the proceeding are as they're going on and having 4 come here not just have to wait and read the 5 transcript at a later point in time.
6 Are there any other administrative 7 manners, Judge Wardwell, before we get started again?
8 JUDGE WARDWELL: No.
9 CHAIRMAN McDADE: Judge Lathrop?
10 JUDGE LATHROP: No.
11 MR. TURK: I have a preliminary matter.
12 CHAIRMAN McDADE: Mr. Turk.
13 MR. TURK: During the course of argument 14 on contentions, different staff counsel will be 15 presenting the staff's position depending on what 16 category of issue is raised. I don't know in your 17 question if you're going to be identifying which 18 contention you're addressing, but depending on which 19 contention is it we'll have a different person come to 20 the front table to speak and hopefully their voice 21 will be picked up by the microphone.
22 CHAIRMAN McDADE: Yes, hopefully it will 23 and we will be addressing the contentions and saying, 24 "We're going to start talking about contention X." At 25 the same period of time as you're well aware, many of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
103 1 the contentions, they merge and some contentions 2 basically address a similar issue, one from an 3 environment stage, one from a safety issue. So there 4 isn't going to be a clear delineation on all the 5 questions that it's clearly on Contention 4 as opposed 6 to another contention. But we will sort of announce 7 ahead of time.
8 Also what we will try to do is just give 9 a short-handed expression of what the contention is.
10 Again, you all have read all of the pleadings and are 11 totally familiar with it. But again, it might be 12 helpful to people reading the record and also to any 13 of the spectators who are here when we're asking 14 questions about a particular contention if they know 15 what it is.
16 And again for the purposes of any 17 spectators in the rules of practice a contention is 18 basically an allegation. It's raising it from the 19 standpoint of the State of New York here. They have 20 raised an issue and they say that this issue needs to 21 be resolved prior to the time that a license 22 application is either granted or denied. So when we 23 use the word "intention" consider it synonymous with 24 an allegation or raising an issue and part of our role 25 right here is to decide whether or not the issue has NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
104 1 been sufficiently joined, whether there is a genuine 2 dispute as to that issue, whether that issue is within 3 the scope of these proceedings so that we can 4 determine whether or not it is necessary to proceed to 5 an evidentiary hearing on that particular issue.
6 Any other preliminaries? And again, I 7 would ask even with the microphone, not everybody is 8 directly up to the microphone. So if you can make an 9 effort to try to speak up so that your voice carries 10 to the microphone so it then can carry to the 11 individuals who are in the back of the room and over 12 here to the side.
13 MR. BESSETTE: Judge McDade, we have one 14 issue to clarify with regard to the updates. We have 15 the exact dates for you earlier. Unit 2 FSAR was last 16 updated November 15, 2006 and the Unit 3 FSAR was 17 updated September 26, 2007.
18 CHAIRMAN McDADE: Thank you, Mr. Bessette.
19 MR. BESSETTE: You're welcome.
20 CHAIRMAN McDADE: Anyone further?
21 (No verbal response.)
22 (Off the record discussion.)
23 CHAIRMAN McDADE: I think basically where 24 we stand right now is we're up to New York Contention 25 3. Let me also just mention one thing. We may not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
105 1 have questions with regard to all of the contentions.
2 That does not indicate that we have a view one way or 3 the other with regard to that contention whether it's 4 admissible or inadmissible.
5 All of you have written a great deal with 6 regard to the contentions. Your positions are very 7 clear. Certainly they have been extensively 8 articulated in the writing. Our purpose in having 9 this oral argument is just to where we have among the 10 members of the Board any confusion or a question that 11 we will then ask questions with regard to that 12 particular contention. So if there is a contention 13 that none of us have a question on it doesn't indicate 14 either that we've made a decision that that contention 15 is admissible or inadmissible. It just is a 16 determination that based on the pleadings that we have 17 in front of us that the record is clear, that we think 18 we understand fully the issue and what the parties' 19 positions are with regard to that particular 20 contention.
21 New York, Contention No. 3 that the 22 license application does not comply with the 23 requirements of Section 54.29 because it is not 24 possible to ascertain if all relevant equipment, 25 components and systems that are required to have aging NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
106 1 management systems have been identified or to 2 determine whether the aging management requirements 3 for license renewal have been met with regard to those 4 components. That's a shorthanded version of New York 5 Contention No. 3.
6 To the NRC staff, it is a requirement that 7 prior to submitting the application that there be an 8 evaluation, that the Applicant has to make a 9 determination as to what systems' equipment is going 10 to be effected by aging and to develop aging 11 management plans to address them. Can you explain the 12 methodology that the Agency uses, that the NRC uses, 13 to determine whether or not it is complete in that 14 regard, specifically addressing, I believe, it's 54.21 15 and the integrated plant assessment required pursuant 16 54.21? How does the Agency go about reviewing that?
17 MR. ROTH: Your Honor, David Roth for the 18 staff. One of the Agency's main tools for reviewing 19 such determinations is described in its Standard 20 Review Plan for License Renewal which is also known as 21 NUREG 1800. Within that NUREG, it lists typical 22 structures and components that are subject to the 23 reviews and describes in great detail how the staff go 24 through their scoping process to decide what items 25 should be in scope and whether the Applicant has NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
107 1 adequately listed these items in scope.
2 CHAIRMAN McDADE: Now from the standpoint 3 of the Agency, we had talked about the, going back in 4 earlier discussions, both the CLB and GOC, the Current 5 Licensing Basis, the General Design Criteria. How are 6 those factored into your determination as to what 7 elements need to be considered in the aging management 8 plan?
9 MR. ROTH: The GDC or the Plant Design 10 Criteria if it's a GDC plant and the FSAR, the final 11 safety analysis --
12 CHAIRMAN McDADE: I'm sorry. Can you 13 speak up a little bit?
14 MR. ROTH: Sorry. The GDC, the General 15 Design Criteria, or the PDC which is our shorthand for 16 the Plant Design Criteria for those that are before 17 the General Design Criteria existed are certainly 18 references for the staff to use. Within the SRP, it 19 describes to the staff that they should look at the 20 GDC. They should look at the FSAR. They should also 21 review through the various specific regulations that 22 are called separate in license renewal, for example, 23 Station Blackout, and again it's a voluminous 24 document, 346 pages, but it provides the reviewer with 25 a starting point and describes the process by which NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
108 1 the staff then review these.
2 If the question is how do they determine 3 which GDC apply to that particular plant, as we were 4 discussing earlier this morning, you can look back 5 through the current licensing basis which would 6 include the construction permit where the GDC would be 7 described, the final safety analysis report, the 8 original operating license, subsequent correspondence 9 that would say whether at some future time or whether 10 at some time from the initial construction permit the 11 Applicant has incorporated a later version of the GDC.
12 CHAIRMAN McDADE: And then using that, 13 taking NUREG 1800, one determines those systems that 14 need to be subject an aging management program.
15 MR. ROTH: Using that and then one could 16 review the licensee's application to determine if the 17 licensee has adequately and properly scoped in systems 18 at its plant. Yes.
19 CHAIRMAN McDADE: Okay. From the 20 standpoint of New York, why does that not give you 21 sufficient information to determine whether or not all 22 appropriate systems have been subject to an aging 23 management plan?
24 MR. SIPOS: Your Honor, in theory, it 25 might. But in this case it does not because the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
109 1 UFSAR, the updated final safety analysis report 2 submitted by Entergy, states that the reactors are 3 committed to the October 1967 suggested collection of 4 ideas put forth by the Atomic Industrial Forum.
5 This morning I believe we heard, I believe 6 the record will reflect, that Entergy also stated that 7 the July 1967 draft version published in the Federal 8 Register has applicability and also with respect to 9 Unit 2, I believe I heard that the 1971 GDC applies, 10 that statement connected to the 1982 letter from the 11 NRC.
12 But coming back to the documents that are 13 in this case, the documents that are attached to the 14 LRA, the UFSAR says time and time again that these two 15 reactors are committed to buy-buy for the general 16 design criteria is the suggestions put forth by a 17 trade association, by a lobbying group. There is --
18 And the consequences that cascade from that statement 19 are profound here. It affects the current licensing 20 basis and it would also affect the review, the plant 21 assessment that we're discussing now and any aging 22 management review.
23 Frankly, I think as this proceeding has 24 progressed even this morning, it's not clear what 25 these two reactors are to be benchmarked against with NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
110 1 respect to the general design criteria and that's an 2 issue that's been put in issue here by the license 3 renewal application. Entergy has opened the door and 4 it's appropriate for the State to raise contentions on 5 that.
6 CHAIRMAN McDADE: As I understood what the 7 staff and the Applicant said this morning and also in 8 their application is basically that the general design 9 criteria, you look to what was available at the time 10 the plant was originally licensed and that was part of 11 the original licensing basis and at that point in 12 time, you start it off with a draft and then you start 13 it off with a supplement to that draft that was 14 prepared by the AIF. But that way back when the 15 original license application was approved, the 16 Commission said we find these general design criteria 17 to be adequate and that therefore since they were part 18 of the original license application that they are now 19 carried over and are part of this license renewal 20 application but that the adequacy of that is not to 21 be challenged in the license renewal proceeding, but 22 rather that there are other avenues that you could 23 approach if you felt those general design criteria 24 were inadequate. Because it would not only be 25 inadequate for the continued operation of the plant, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
111 1 it would be inadequate for the current operation of 2 the plant and that your options were either to 3 petition the Commission for an enforcement proceeding 4 or for the Commission to take action to change the 5 current licensing basis for this particular plant.
6 And, Mr. Turk, is that a correct statement 7 of the Commission's position, of the staff's position?
8 MR. TURK: It is, Your Honor. I would 9 simply make one slight modification. The Commission 10 didn't say that GDC for the plants were adequate. It 11 said that the plants are safe based on the criteria 12 that they use in their design. For instance, the CPU 13 was issued in 1966 for Unit 2 preceded even the 1967 14 draft GDC. So that was a plant specific determination 15 based on the criteria used by the plant for its 16 design.
17 JUDGE WARDWELL: Regardless of that, if 18 the UFSAR in fact says, the current one says, that 19 this is what's being used as the basis for this plant, 20 if these are the general design criteria that are 21 going to be used for this plant, regardless of what 22 the Commission said as would be adequate, is what's 23 said in the UFSAR, that UFSAR that is the appropriate 24 one for them to be looking at, isn't it, in regards to 25 judging what components aren't included that might NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
112 1 require aging management review?
2 MR. TURK: Yes. The direct answer. And 3 I would note also that even though there were original 4 design criteria used for design of the plant, the 5 design criteria can change over time and that does 6 happen. I don't know specifically with respect to 7 Indian Point which criteria have changed.
8 JUDGE WARDWELL: That's what I was going 9 to ask you. What is now in the UFSAR?
10 MR. TURK: It should lay out what the 11 criteria are for the plant.
12 JUDGE WARDWELL: Which one of these is 13 that and what do they need to judge it by?
14 MR. TURK: It's the plant specific 15 criteria, originally the ones which the AIF proposed 16 as modifications to the 1967 rulemaking. At least, 17 that's my understanding. That's what the FSAR commits 18 to saying that this is what we mean.
19 But then for individual GDC they may have 20 been supplemented or modified over time because there 21 is no regulatory requirement that GDCB adhere to. It 22 would be a mistake to believe that just because the 23 final GDC, for instance, are in Appendix A to 10 CFR 24 Part 50 that those are binding. They are not. An 25 applicant may vary, make it an exception. A new NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
113 1 applicant may get an exception to those final GDC as 2 long as they come up with something that's adequately 3 safe and which would be determined on a plant 4 specific/case specific basis.
5 CHAIRMAN McDADE: But they would either 6 have to comply with that or receive a specific 7 exemption from that from the Agency, would they not?
8 MR. TURK: Not an exemption. It would be 9 --
10 CHAIRMAN McDADE: Perhaps that's a 11 specific approval.
12 MR. TURK: Yes.
13 CHAIRMAN McDADE: To vary from the general 14 design criteria that had originally been used for that 15 plant.
16 MR. TURK: Let's not confuse the GDC as 17 published in the Code of Federal Regulations and the 18 initial GDC or design criteria that were used for the 19 plant. If they wanted to change their design 20 criteria, they would have to come to the Commission 21 and explain why they're varying and justify changing 22 the criteria.
23 CHAIRMAN McDADE: And then that would be 24 made part of the current licensing basis.
25 MR. TURK: Yes.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
114 1 CHAIRMAN McDADE: If the Commission 2 granted that.
3 MR. TURK: Yes.
4 CHAIRMAN McDADE: Allowed them to change, 5 it would be part of the current licensing basis.
6 MR. TURK: That's correct.
7 CHAIRMAN McDADE: And if the intervenor or 8 any other interested party thought that what the 9 Commission did under those circumstances was ill-10 advised, inconsistent with the regulations or unsafe 11 that their remedy would be to go to the Commission 12 with a petition and challenge that action directly.
13 MR. TURK: Yes.
14 CHAIRMAN McDADE: Not to challenge it in 15 the context of a renewal.
16 MR. TURK: Correct.
17 CHAIRMAN McDADE: Okay.
18 JUDGE WARDWELL: To follow up on that, New 19 York, would you comment in regards to do you agree 20 that what's in the UFSAR is what's critical for your 21 needs in regards to evaluating what components aren't 22 being addressed according to that and may need aging 23 management review?
24 MR. SIPOS: Absolutely, Your Honor. It is 25 a critical keystone document and contrary to its name NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
115 1 and its title, it is not updated.
2 Also respectfully the State takes a 3 different view of the AIF submission in October 1967.
4 I'm not so sure that it can be characterized as a 5 supplement but as a suggestion. The Commission, the 6 Atomic Energy Commission, published the draft GDCs in 7 July and, in the Federal Register notice, the 8 Commission was very clear that it said that it 9 expected that it would apply the provisions as interim 10 guidance on a going-forward basis.
11 For the UFSAR here in 2007 when it was 12 submitted to say that the plant is committed to what 13 AIF suggested in October of 1967 raises grave 14 questions about what is going on at this plant, what 15 it has committed to. New York State has set forth in 16 its contention and in its accompanying declaration of 17 Paul Blanch the text of the GDCs and what the UFSAR 18 for Unit 2 and Unit 3 commits to and there frankly is 19 a disconnect, a substantive disconnect, there.
20 And in this proceeding just to further 21 address perhaps some concerns New York is not seeking 22 to raise a 2.206 enforcement proceeding or to file a 23 petition to respectfully change the regulations. We 24 believe that this UFSAR commitment to a lobbyist's 25 suggestion calls into the question the entire license NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
116 1 renewal application right here as part of Rule 54 and 2 we think that is within the scope of this license 3 renewal proceeding.
4 CHAIRMAN McDADE: Okay. I followed you 5 right to the end there and I just want to make sure.
6 How do you draw that connection? Again, we're talking 7 about something that happened back in 1967. That's 8 when the AIF was issued, the general design criteria 9 from that organization. How does that now become part 10 of this license renewal application?
11 And I understand what you said that you 12 were not petitioning the Commission for change.
13 You're not asking for a rulemaking or for an 14 enforcement action. But what the Commission staff 15 seems to be saying and what Entergy seems to be saying 16 in their pleadings, we haven't had a chance to hear 17 from them orally here on this quite yet, is that those 18 are the remedies that you should seek, that the fact 19 that this was done by a trade organization back 40 20 years ago is not relevant now. There's a current 21 licensing basis now. You can attack the current 22 licensing basis. You only can attack those aspects 23 that are going to be affected during the continued 24 operation, the extended operation, the additional 20 25 years of the license that they're seeking.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
117 1 Why is that not a valid argument on the 2 part of the staff at Entergy?
3 MR. SIPOS: It is not a valid argument 4 because the State does not seek to challenge in this 5 proceeding the current licensing basis. Entergy has 6 submitted a UFSAR, an updated final safety analysis 7 report, which commits to a 40-year-old document.
8 And again, New York respectfully suggests 9 that it is not a supplement. It is not a version. It 10 is an expression of hope by a trade group as to what 11 the regulation could be or should be and simply put 12 the statement or suggestion of a lobbyist really has 13 no application in this proceeding. Moreover, it 14 affects --
15 Moreover, because it's in the license 16 renewal application and it's a commitment to what a 17 lobbyist suggested, that raises significant questions 18 as to what this plant, what is going on at this plant 19 and respectfully it appears that Entergy is all over 20 the road on this. Repeatedly through their license 21 renewal application, they say the AIF, the lobbyist's 22 suggestion is what applies. The lobbyist's suggestion 23 is what applies.
24 Today I believe we heard that for Unit 2 25 it is the 1971 regulation promulgated by the AEC and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
118 1 that it is also possible that the July 1967 AEC 2 general design criteria which was placed in the 3 Federal Register, that also applies. We have -- In 4 just the span of this morning, we've heard three 5 different versions, the lobbyist, the AEC `67 and the 6 AEC `71. That should be a red light as to what's 7 going on here.
8 And the GDC to come back perhaps again to 9 Your Honor's question the GDC informs the plant 10 assessment and the aging management review. But if 11 it's not clear what the GDC is, which of the three 12 options it is, then how can there be confidence in how 13 the aging management review and the plant assessment 14 was performed?
15 CHAIRMAN McDADE: Let me -- I want to 16 clarify something in my own mind. You've been talking 17 about this GDC published by the AIF, the trade group.
18 Does it make any difference whether or not that was 19 drafted entirely by the NRC or at that point, the 20 Atomic Energy Commission, by a trade group, by a 21 public interest group? Does it make any difference?
22 I mean, are we simply looking at was the general 23 design criteria at that point adequate?
24 And then the second question which is at 25 least as I understood the staff's position and the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
119 1 Applicant's position is, you know, for our purposes it 2 really doesn't matter because whatever it was it is 3 and this isn't the proceeding to challenge it.
4 MR. SIPOS: Yes, Your Honor. We do not 5 seek to challenge the GDC here in an enforcement 6 proceeding. However, in answer to your question, does 7 it matter, it most certainly does because what the 8 Atomic Industrial Forum said, whatever it said or 9 whoever said it, it could have been the Sierra Club in 10 a draft comment, that does not have any valid legal 11 basis.
12 It's an expression of hope but that's all 13 it is. It's an attempt to carry the day with the 14 regulator. But here in theFederal Register from July 15 1967 on page 10214, the Commission, this is the Atomic 16 Energy Commission speaking, saying "The Commission 17 expects that the provisions of the proposed amendment 18 relating to the general design criteria for nuclear 19 power plant construction permits will be used as 20 interim guidance until such time as the Commission 21 takes further action and it carries that on."
22 So for Entergy and the staff to say it 23 really doesn't matter, I don't see how that's tenable 24 and again today we heard, we now hear, that three 25 different versions may be applied depending on the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
120 1 unit and that should be -- Well, it should be 2 unacceptable.
3 But for the purpose of a license renewal 4 process, that's one of the critical elements that the 5 aging management review and the plant assessment is to 6 look at. What are -- If I could refer back to what is 7 the current licensing basis, part of it is our design 8 basis information. What was this plant built to? How 9 is it carried forward? And we believe there are 10 significant differences between the July 1967 version 11 put forth in the Federal Register by the Atomic Energy 12 Commission and the suggestions by the Atomic 13 Industrial Forum.
14 JUDGE WARDWELL: Because you're not 15 challenging the adequacy of the GDC, that's what I 16 heard you say, isn't your only mission to determine 17 what they actually are in the UFSAR and in your 18 pursuit of trying to determine what those are what did 19 you find out that exists in the UFSAR?
20 MR. SIPOS: We found --
21 JUDGE WARDWELL: That's a question.
22 (Laugher.)
23 MR. SIPOS: We found that in the UFSAR 24 that that document committed to a group of suggestions 25 by a lobbying group.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
121 1 JUDGE WARDWELL: So it committed.
2 MR. SIPOS: Repeatedly.
3 JUDGE WARDWELL: And that's been approved 4 the UFSAR as approved is committing to the `67 AIF 5 version of the GDC.
6 MR. SIPOS: May I have just one moment, 7 Your Honor?
8 (Off the record discussion.)
9 MR. SIPOS: I think we don't know the 10 answer. I think the statements in the LRA, in the 11 UFSAR and the LRA, and presented to this Board this 12 morning are inconsistent on several bases and we don't 13 know. We, the State of New York, don't know what GDC 14 this plant, these two reactors, are committed to. The 15 LRA says the lobbyist's version. This morning we 16 heard Unit 3 the 1971 version of the regulations put 17 forth in the Federal Register and then we also heard 18 the July 1967 version of the GDCs in the Federal 19 Register. There are substantive differences amongst 20 all three of those.
21 JUDGE WARDWELL: Thank you.
22 Staff, is it correct, are my impressions 23 correct, that in fact what's important is not 24 necessarily which of these are relevant? The only one 25 that's relevant is what is defined in the UFSAR. Is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
122 1 that a correct impression on my part or am I erroneous 2 and for what reasons?
3 MR. TURK: You're correct at this point in 4 time.
5 JUDGE WARDWELL: What are -- Let me 6 rephrase that. Do you know what are the GDCs that are 7 currently in the most recent UFSAR?
8 MR. TURK: The staff does and because the 9 UFSAR states what the criteria are.
10 JUDGE WARDWELL: And what are those? Can 11 you -- It would help if you annunciate for everyone?
12 Thank you.
13 MR. TURK: Thank you. And may I, since 14 we're talking about presentations, ask that we be 15 moved to the side of the room because I really feel 16 Entergy should be taking all the questions?
17 JUDGE WARDWELL: No.
18 (Simultaneous conversations.)
19 MR. TURK: -- closest in vision.
20 JUDGE WARDWELL: I purposely pick who I'm 21 interested in addressing. I'm not picking on you 22 because you're closest.
23 MR. TURK: All right.
24 JUDGE WARDWELL: I'm going to get over 25 there. Trust me. We will get over there.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
123 1 MR. TURK: When these units were proposed, 2 there were no final GDC in place and when the Unit 1 3 unit was proposed and a construction permit was 4 issued, there was not even the 1967 proposed GDC of 5 July `67 in place. Each plant proposed its own 6 principal design criteria and that's what Entergy's 7 predecessors did for these units.
8 When the Commission published its 1967 9 proposed GDC, they stated we're publishing these 10 proposed rules for comment. This is what is required 11 under the Administrative Procedure Act. Whenever an 12 agency takes regulatory action, rulemaking action, 13 they must publish their proposed rules, get comments 14 and then issue their final. The Atomic Industrial 15 Forum provided its comments in response to the 16 proposed rulemaking.
17 But I would like to read something that 18 appeared in the 1967 proposed GDC published by the 19 Commission in July and this is in the Federal Register 20 Volume XXXII at page 10214. "The purpose of the 21 proposed amendment would be to provide guidance to 22 applicants to develop the principal design criteria to 23 be included in applications for Commission 24 construction permits. These general design criteria 25 would not add any new requirements but are intended to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
124 1 describe more clearly present Commission requirements 2 to assist applicants in preparing their applications."
3 And it went on to say, "The Commission expects that 4 the provisions of the proposed amendments relating to 5 GDC for nuclear power plant construction permits will 6 be useful as interim guidance until such time as the 7 Commission takes further."
8 In sum, the proposed GDC of July `67 were 9 not binding at the time. They were not binding upon 10 Entergy's predecessor. As a nuclear power plant 11 applicant, Units 2 and 3 could propose their own 12 principal design criteria. Those criteria were 13 evaluated by the staff of the Commission and 14 determined to be adequate for protection of public 15 health and safety. The plants were licensed.
16 In time as new information became 17 available to the Commission, the GDC for the plant, 18 the principal design criteria for the plant, may well 19 have changed to address new safety requirements and 20 the updated UFSAR today should reflect what are the 21 current principal design criteria for these plants.
22 JUDGE WARDWELL: But does it?
23 MR. TURK: I believe that it does. Yes.
24 JUDGE WARDWELL: And you are charged to 25 reviewing that, aren't you, in regards to approving NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
125 1 it?
2 MR. TURK: Fortunately, I personally am 3 not.
4 JUDGE WARDWELL: I understand that.
5 MR. TURK: The technical staff is and the 6 technical staff informs us, yes, the UFSAR does 7 reference the appropriate design criteria for the 8 plants.
9 JUDGE WARDWELL: It might be a little 10 scary if you were the one, don't you think?
11 (Laughter.)
12 CHAIRMAN McDADE: And to the degree that 13 each time if the applicant, in this case, I guess it's 14 not the applicant, but it's the licensee, at that 15 particular point in time, wished to change the 16 requirements they would advise the NRC and the NRC 17 would have to put its imprimatur on it before it could 18 change those design criteria.
19 MR. TURK: There are regulatory processes.
20 An amendment to the FSAR could be made without having 21 to get an amendment to the license and that process is 22 laid out under 10 CFR 50.59 which allows an applicant 23 to determine that it wishes to make changes to the 24 FSAR and then there's a process they have to follow to 25 make sure that those changes do not impair safety to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
126 1 the public.
2 Alternatively, if they find that there is 3 a significant safety issue as laid out in 50.59, they 4 would have to come in with an amendment to the 5 license. So there's a threshold determination. Is an 6 amendment to the license necessary or not? If not, 7 50.59 allows the applicant to make the changes subject 8 to subsequent staff review on an auditing basis.
9 CHAIRMAN McDADE: But they would still 10 need to give notice to the staff. The staff then 11 would make a determination based on an audit whether 12 or not it was appropriate or inappropriate, whether or 13 not it would require a license modification or not.
14 MR. TURK: Under 50.59, they can take the 15 action without prior notification to the Commission 16 and their updated FSAR would include their 50.59 17 analysis and that would be reviewed after the fact by 18 the staff.
19 CHAIRMAN McDADE: So the first the staff 20 would know about is in the biannual updates?
21 MR. TURK: If it was not something that 22 required a license amendment, yes.
23 CHAIRMAN McDADE: Or if it was not 24 something that the licensee initially thought would 25 not require an amendment. In the first instance, they NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
127 1 make a determination. If they make that determination 2 that it would not require an amendment, they just 3 simply do it and then put it in the update which is 4 only required every other year. Once the NRC staff 5 had an opportunity to review that update, it would 6 then either acquiesce or challenge that determination.
7 Is that correct?
8 MR. TURK: That's essentially correct.
9 And I would point out also that the staff has resident 10 inspectors at the site who would become aware of the 11 processes that are being changed. So that's another 12 -- The staff would get a heads-up on the information, 13 but we're not waiting for the FSAR to come through 14 with the amendment.
15 CHAIRMAN McDADE: But in any event, it is 16 -- And again I'm not saying this is the case. I'm 17 saying that it's the staff's position that this is 18 part of the current licensing basis.
19 MR. TURK: Absolutely.
20 CHAIRMAN McDADE: And then therefore since 21 it is part of the current licensing basis, this isn't 22 the proceeding to challenge it.
23 MR. TURK: Correct.
24 CHAIRMAN McDADE: Okay. Now the 25 Intervenor, New York, as I understand it, says, "You NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
128 1 know, we can't figure out what it is, that the updated 2 analysis is inadequate. So therefore since we can't 3 figure out what it is, we don't know whether or not 4 the determination as to aging management is adequate 5 or not." Is that correct?
6 MR. SIPOS: That is one of our concerns, 7 yes.
8 CHAIRMAN McDADE: That we need to have 9 effectively a clear baseline knowing what it's 10 supposed to be that we can then make a determination 11 as to the impact that aging would have on it and 12 whether the aging management plan is adequate under 13 those circumstances.
14 MR. SIPOS: Correct. How can New York be 15 confident in the aging management review if all that 16 the UFSAR commits to is some suggestion by a lobbyist?
17 CHAIRMAN McDADE: Okay. Going back again 18 -- Isn't it a red herring whether it was a suggestion 19 by a lobbyist or it was a suggestion by the State of 20 New York back in 1967? I mean, it was a draft 21 regulation. Comments were made on the draft 22 regulation. The Agency back almost 40 years ago 23 allowed the plant to be licensed with a particular 24 current licensing basis.
25 The Agency has subsequently said that for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
129 1 plants licensed before sometime in 1971 that we're not 2 going to apply the new criteria. Effectively, we're 3 going to allow the current licensing basis that 4 existed at that time to continue. Do I have a correct 5 statement of understanding of the staff's position?
6 MR. TURK: I believe you're correct, Your 7 Honor.
8 CHAIRMAN McDADE: Okay. Why does that not 9 satisfy your needs? I mean, it doesn't matter at this 10 point how it came about. If the general design 11 criteria has been accepted by the Commission, has been 12 accepted for decades by the Commission, and what 13 they're saying that if you had an objection to it this 14 isn't the fora, that there are administrative vehicles 15 available for you to challenge the adequacy of it.
16 It's just not here.
17 MR. SIPOS: Your Honor, New York does not 18 challenge the substance of the general design criteria 19 as it appears in, I believe, Appendix A to Part 50.
20 What we are challenging is Entergy's statement that 21 these plants are benchmarked to criteria that have no 22 legal significance and that infects and undermines the 23 aging management review. It is facially deficient for 24 Entergy to say these facilities built by Con Ed comply 25 with a lobbyist's suggestion.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
130 1 And moreover, given what we've heard 2 today, we've heard three different stories. We've 3 heard that the final GDC do apply for Unit 3. I 4 believe we heard that this morning. That's 5 fundamentally different from what's in the license 6 renewal application. And we also heard that the July 7 `67 GDCs which were proposed in the Federal Register 8 that they could also apply.
9 We're left thinking, "Which is it?" Which 10 of these options are they really committed to? Is it 11 Door No. 1, Door No. 2, Door No. 3? Tell us.
12 JUDGE WARDWELL: You're saying several 13 things here and to me, at least, I'm hearing several 14 things and I understand your statement in regards that 15 you feel you can't understand or know or comprehend 16 which it is you're actually trying to evaluate in 17 regards to looking at those components needing or not 18 needing aging management review. I understand that 19 part of it.
20 What I don't understand is if, in fact, it 21 was clear, let's go under the assumption it is clear 22 in the UFSAR, to me it makes no difference whether 23 Howdy Doody wrote them. If that's what's in there and 24 that's what's approved because you're not objecting, 25 that's why it doesn't matter who wrote them or why NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
131 1 they're written, whether they're written by a lobbyist 2 group or whether they're written from the Truth of the 3 Universe that comes down and says, "This is the 4 appropriate ones."
5 If you're not challenging in this hearing, 6 then it's irrelevant. What is relevant is what is in 7 UFSAR, is it understandable, and if it is in the UFSAR 8 and it's understandable, then, in fact, you should be 9 able to address it in regards to aging management 10 review and if it isn't you can't.
11 How do you respond to that and then how do 12 you respond to their other statement of what's the 13 difference with your second statement saying about the 14 benchmarking to what you consider to be a very 15 nebulous or not credible standard that was developed 16 by the AIF is what I heard your second statement being 17 the one of another issue of yours. And I don't 18 understand why that isn't a challenge to the adequacy 19 of the GDC that's appropriate for this plant.
20 MR. SIPOS: May I have a moment, Your 21 Honor, to respond?
22 JUDGE WARDWELL: Sure.
23 (Off the record discussion.)
24 MR. SIPOS: Judge Wardwell, if I may, the 25 first part of your question is what motivates our NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
132 1 concern primarily. We have concerns given the 2 inconsistency or incoherence of the commitment how the 3 aging management review could have been done in a 4 comprehensive, appropriate manner. I believe that 5 addresses -- I hope that addresses the first part of 6 your question.
7 JUDGE WARDWELL: Yes, it does.
8 MR. SIPOS: But secondly, just so this is 9 clear, we're not challenging the 1971 GDCs. Those are 10 on the books. We recognize that. But in this 11 proceeding, you've heard three different stories. We 12 don't know which criteria they're committed to.
13 CHAIRMAN McDADE: Let me just interject 14 here to make sure that I understand and I'm going to 15 ask this of Entergy and the staff as well and please 16 inform me here.
17 As I understand it, we started off with 18 Indian Point 1. At the time Indian Point 1 had its 19 license approve, that was before the draft guidance, 20 the 1967 guidance, that the NRC or the Atomic Energy 21 Commission at that point put out. So there were 22 general design criteria that were built into that 23 license application and they would then stay with that 24 license application unless it was changed.
25 At a later point in time, we had the draft NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
133 1 that was issued in 1967 by the Commission. We then 2 had comments on that that were made by the AIF and 3 then at a later point in time we had a final order 4 regulation that was issued by Commission. So what you 5 look to is the Commission has made a determination 6 that for plants that were already licensed, that were 7 licensed before I think it was May of `71, that we're 8 not going to go back and change the general design 9 criteria for those, that the general design criteria 10 that was in existence at the time that they were 11 licensed would remain as part of the continuing 12 license basis for that plant as long as the plant 13 operated unless and until there was a change that was 14 either initiated by the applicant or was initiated by 15 the Commission, but on a plant specific basis. Am I 16 correctly understanding the position of the Applicant?
17 MS. SUTTON: Yes, Your Honor, and to back 18 up, the FSAR is part of the current licensing basis 19 per the definition in Section 54.3. That's clear.
20 Section 1.3 of the Indian Point 2 FSAR is clearly 21 titled "General Design Criteria" and I can read it in 22 its entirety, but I'll read it in portion.
23 It says clearly, "These general design 24 criteria tabulated explicitly in the pertinent systems 25 section of this report comprise the proposed AIF NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
134 1 versions of the criteria issued for comment by the AEC 2 on July 1967." So let me be clear that that's what I 3 was referring to earlier. That's the 1967. That is 4 in the FSAR. That is the current licensing basis.
5 That is what New York is attacking, the AIF version of 6 that. But that is the current licensing basis.
7 Now the staff said there are occasions 8 upon which the Agency may revisit the GDCs, may update 9 them. Again, in Section 1.3, I'm just quoting in 10 part, "Con Ed completed a study of compliance with 10 11 CFR Parts 20 and 50 in accordance with the 12 Commission's confirmatory order of February 11, 1980.
13 The detailed results of the evaluation of Indian Point 14 Unit 2 compliance with the then current GDC 15 established by the NRC in 10 CFR 50 Appendix A were 16 submitted to the NRC by Con Ed on August 11, 1980 and 17 the Commission concurrence was received on January 19, 18 1982."
19 So that's just an indication that later in 20 time they went back and said, "They're even in 21 compliance with Appendix A now." But this information 22 is all contained in the FSAR. It was available to the 23 State but they were not cognitive of it.
24 (Off the record discussion.)
25 JUDGE WARDWELL: How do you respond to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
135 1 that? That seems pretty simple to me, 2 straightforward. It's not simple.
3 MR. SIPOS: As set forth in our contention 4 and in our supporting declaration from Paul Blanch, 5 when the UFSAR in this license renewal application 6 refers to general design criteria and is excerpting 7 them or applying them, it is using the AIF suggestion.
8 Yet staff in 1982 applied the `71 Atomic Energy 9 Commission promulgated regulations for the GDC for 10 Unit 3 and I believe we also heard that the July `67 11 AEC version somehow also applies.
12 MS. SUTTON: -- does not apply.
13 MR. SIPOS: It does not apply.
14 MS. SUTTON: -- just read from Section 1.3 15 of the FSAR.
16 MR. SIPOS: I'm not sure that's what was 17 said this morning. Nevertheless, the UFSAR submitted 18 to the Commission and to this Board, makes a 19 commitment that's just untenable and unenforceable and 20 we're not challenging `71 regulations. We're seeking 21 to have applied either the Atomic Energy Commission's 22 July 1967 draft regulations promulgated in the Federal 23 Register or what was promulgated in 1971. It cannot 24 be what AIF suggested and in the chart presented by 25 Mr. Blanch he determines that the text of what they're NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
136 1 committed to is what the AIF suggested.
2 JUDGE WARDWELL: And that's what the 3 Blanch table is attempting to do is to merely 4 demonstrate that it's the AIF version that is being.
5 But is that not the one -- Entergy, could you again 6 repeat what is the current general design criteria in 7 the most recent updated FSAR?
8 MS. SUTTON: Yes, Your Honor. I'm quoting 9 from Section 1.3 of the UFSAR. "These general design 10 criteria tabulated explicitly in the pertinent systems 11 sections of this report comprise the proposed AIF 12 versions of the criteria issued for comment by the AEC 13 on July 11, 1967."
14 JUDGE WARDWELL: So it is the AIF version 15 of what you just heard.
16 MS. SUTTON: Correct, Your Honor. And 17 that is incorporated into the licensing basis of the 18 plant per the FSAR. And that is exactly what the 19 State is challenging.
20 CHAIRMAN McDADE: Okay. I think the 21 position of the parties on this is clear. Mr. Turk, 22 did you have something to add?
23 MR. TURK: I was just going to note, Your 24 Honor, I guess as a final statement from us that Ms.
25 Sutton was referring to the Unit 2 FSAR. The Unit 3 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
137 1 FSAR has -- The Unit 3 FSAR as originally submitted to 2 the NRC back in 1970, I believe, contains the same 3 words. It may have been modified subsequently, but 4 the commitment was that they do comply with the AIF, 5 Atomic Industrial Forum, version of the proposed GDC.
6 CHAIRMAN McDADE: Okay. Thank you.
7 JUDGE WARDWELL: Have either of these 8 plants had their GDC modified? This is a question 9 towards Entergy.
10 MS. SUTTON: We'll have to take a moment 11 to confer.
12 (Off the record discussion.)
13 JUDGE WARDWELL: While you're doing that, 14 is there any other bases that you want to emphasize in 15 regards to this particular contention besides the GDC 16 issue?
17 Because as you read the contention, it's a bit more 18 general than that. But yet it seems like most of the 19 discussion here is with the GDC and I want to make 20 sure there isn't something else that you would like to 21 reiterate again or clarify.
22 MR. SIPOS: I think that's generally, 23 Judge Wardwell, that the third contention was seeking 24 to highlight the issue, the concern, New York had with 25 the GDC while the second contention was designed to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
138 1 highlight the concerns about the UFSAR and they both 2 together inform the concern about the current 3 licensing basis.
4 MS. SUTTON: Yes, Your Honor. There have 5 been instances in which the GDC have been modified per 6 50.59 license amendment as the staff earlier 7 explained. For example, there has been a change in 8 connection with the alternate source term. We don't 9 know the exact GDC number. There also has been a 10 change with respect to GDC 19 that deals with control 11 room doses. Those are two examples.
12 JUDGE WARDWELL: In the UFSAR, can a 13 person go to the section like you just quoted and find 14 either a table or a paragraph or a reference to an 15 appendix so that they can go to that and pull that out 16 and then compare it what actually has been done so 17 that they can use it to determine what components need 18 aging management review?
19 (Off the record comments.)
20 MS. SUTTON: Yes, Your Honor. There are 21 rev bars in the FSAR and there is also a section that 22 deals with compliance with GDC.
23 CHAIRMAN McDADE: Okay. I think the 24 positions of the parties with regards to Contention 3 25 are relatively clear and we can move on.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
139 1 Contention No. 4 is that the application 2 is deficient because the ER, the Environmental Report, 3 that there is not a separate environmental report for 4 each license. That's a separate environmental report 5 for Indian Point 2 and Indian Point 3. To New York, 6 can you explain succinctly why you believe they need 7 to have two environmental reports as opposed to a 8 single environmental report?
9 MR. SIPOS: We believe it's a requirement 10 by the plain text of the regulation. Moreover, we 11 believe it promotes and fosters NEPA's directive to 12 federal agencies to carefully examine the impacts of 13 their decision and that potentially one option here is 14 -- it's not an all or nothing proposition from a 15 logical perspective.
16 And by joining the two reactors together 17 in the Environmental Report, it is not -- it's not 18 illuminating all the options that are out there, one 19 of which is one unit might get relicensed and one 20 doesn't and how that plays out in terms of 21 alternatives in the no action alternative.
22 CHAIRMAN McDADE: Okay, there seems to be 23 two separate issues at least in my mind and let me see 24 if you agree or disagree. I mean, first of all, the 25 specific language of the regulation which is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
140 1 51.53(c)(1) talks about having a separate document 2 which is an Environmental Report. It doesn't say at 3 least in hoc verba that if there are multiple 4 applications that there have to be multiple 5 environmental reports.
6 But as far as the adequacy of the 7 Environmental Report, it seems that what Entergy has 8 done here by having a single Environmental Report, 9 given the fact that the cumulative impact of two 10 reactors may be greater than the sum of the parts, 11 makes sense and that really what you're saying is that 12 there is a deficiency in the Environmental Report in 13 that it doesn't adequately consider the possibilities, 14 for example, if Indian Point 3 license were renewed 15 and Indian Point 2 were not renewed. It doesn't take 16 that into consideration.
17 But it is not that they're need be two 18 Environmental Reports but rather than the one 19 Environmental Report that they published does not 20 adequately take into consideration all of the 21 possibilities presented by the facts of this case. Am 22 I correct?
23 MR. SIPOS: I think that's fair. I think 24 you -- that is the State's concern. The State's 25 concern is that this is not all or nothing. It's not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
141 1 roughly or approximately 2.000 megawatts or nothing.
2 There could be something in between and that that 3 legitimate inquiry into alternatives or no action 4 alternatives is not properly examined.
5 But coming back to the first part of your 6 question, there's another clause in the regulation 7 which I believe is -- I don't have it in front of me.
8 I think it's each nuclear facility and we believe that 9 that further supports New York's position.
10 JUDGE WARDWELL: While as you're looking 11 that up, is it fair to say that you would be satisfied 12 as long as the alternatives being addressed include 13 looking at only part of a total power components from 14 the combined plants such that only relicensing one of 15 the two would be considered as the environmental 16 impacts are being tabulated, compiled by the Applicant 17 and then assessed by the staff later on in the EIS?
18 MR. SIPOS: That is a concern that 19 motivates New York's contention.
20 JUDGE WARDWELL: If, in fact, they were 21 evaluated, if in fact, they did go in and look at only 22 replacing 1,000 megawatts in addition to the analysis 23 of looking at replacing 2,000 as an alternative, would 24 you really care whether or not there's one or two 25 Environmental Reports?
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
142 1 MR. SIPOS: New York has a concern about 2 the proper evaluation of alternatives, to be sure, 3 Judge Wardwell, but also given that the Commission has 4 instructed us that the regulations are strict by 5 design, I would just note that the regulation says, 6 quote, "Each Applicant for renewal of a license to 7 operate A, nuclear power plant under Part 54 of this 8 chapter shall submit with its application a separate 9 document entitled `Applicant's Environmental Report 10 Operating License Renewal State'." Close quote.
11 CHAIRMAN McDADE: But here they have 12 submitted a separate document entitled "Environmental 13 Report". It's just that that Environmental Report 14 covers both nuclear power plants.
15 MR. SIPOS: That's correct, Judge McDade 16 and the regulation says to operate a nuclear power 17 plant.
18 JUDGE WARDWELL: How are you going to 19 respond when I ask Entergy about this and you're going 20 to say that this has been done time and time again at 21 other plants where more than -- when one owner, in 22 fact, has relicensed several plants that aren't even 23 on the same proximity of land use? How do you respond 24 to that?
25 MR. SIPOS: New York is aware of the cases NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
143 1 cited by Entergy and that issue -- to our 2 understanding, that issue has not been raised.
3 Moreover, just because it's been done that way in the 4 past, does not necessarily mean given the clear text 5 of 10 CFR 51.53(c)(1) that it should be that way in 6 this case.
7 SR. SPEC. AGENT MULLEN: Okay, given the 8 plain language of 10 CFR 51.53(c)(1), Entergy, why 9 isn't it appropriate to have two Environmental 10 Reports, especially in regards to the relationship 11 that it impacts alternative analysis?
12 MS. SUTTON: Well, first the regulation is 13 clear that the separate Environmental Report must go 14 as a segregated document from the LRA. We have done 15 exactly that. Our LRA encompasses two units. It is 16 the Indian Point Energy Center that is the plant. At 17 the same time, we believe that it's not appropriate --
18 the major federal action here is to preserve the 19 option of renewing two units. And that's the action 20 that bounds the scope of the Environmental Analysis, 21 not only in terms of alternatives but also in terms of 22 cumulative environmental impacts from the renewal of 23 both units.
24 So, your Honor, we believe that in order 25 to be in compliance with NEPA, we must do this on a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
144 1 dual unit basis.
2 JUDGE WARDWELL: Well, no one is asking 3 you not to do the cumulative impact. That would still 4 take place if you had two Environmental Reports.
5 There's definitely a cumulative impacts, as you say 6 requirement to address. So -- and nor is New York 7 State contending that that cumulative impact shouldn't 8 be analyzed.
9 They're just saying in addition to that, 10 it makes sense at this site in regards to the 11 viability of some of the optional energy sources to 12 look at only replacing 1,000 of the 2,000 megawatts.
13 MS. SUTTON: Right, and they'd like to 14 redefine the major federal action. In this case, we 15 have filed an application for the renewal of two units 16 and that is the proposed action here. In that case, 17 we need to look at a reasonable range of alternatives, 18 vis-a-vis, that proposal and in this case, the 19 alternatives that they are looking to have examined 20 are not reasonable given that particular proposal in 21 terms of an alternatives analysis.
22 JUDGE WARDWELL: But is that the 23 appropriate definition of a power plant?
24 MS. SUTTON: We believe it is.
25 CHAIRMAN McDADE: Let me ask something, if NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
145 1 I could going back to New York. And this goes back to 2 a question that Judge Wardwell asked before lunch; 3 whether we admit contentions or admit bases. Assume 4 for the sake of argument that we determine that in 5 fact, it was appropriate for Entergy to discuss in a 6 single Environmental Report the impact of both 7 licenses, of granting both licenses. If we had 8 questions then as to whether or not their analysis of 9 the alternatives specifically considering the 10 alternative of one plant as opposed to both plants 11 being relicensed, both reactors being relicensed, is 12 that outside the language of the contention as written 13 which talks about failure to provide two separate 14 Environmental Reports?
15 MR. SIPOS: No, I would submit it's not 16 outside the contention and that the Board also has 17 authority to recast contentions. I believe that has 18 taken place in other proceedings and given New York's 19 two concerns relative to this contention, I believe it 20 would not be inappropriate if following your 21 hypothetical, Judge, if you thought -- if the Board 22 thought it was appropriate that there be only one 23 Environmental Report but that the -- New York's second 24 objective was legitimate or found to be admissible to 25 issue a directive or to have that be a contention that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
146 1 would be litigated.
2 CHAIRMAN McDADE: What's the staff's view 3 on that, Mr. Turk?
4 MR. TURK: The thrust of this contention 5 is that the application is defective because two 6 reports were not submitted. That's the contention 7 you're asked to evaluate, not the adequacy of the 8 alternative discussions in the Environmental Report.
9 CHAIRMAN McDADE: So it would be the 10 staff's position that that would be too great a 11 modification and the contention for the Board to do.
12 MR. TURK: Yes, and also the state has 13 filed other contentions which address the adequacy of 14 the alternatives analysis. I think what New York is 15 trying to do is keep this contention alive even if 16 they get the other contention in. And I think they 17 really should be fair and recognize that this is a 18 little sufficiency contention, not a contention 19 dealing with the adequacy of the alternatives 20 analysis.
21 JUDGE WARDWELL: How do you address and 22 what's your definition of an individual power plant or 23 whatever the wording is in the appropriate regulation?
24 MR. TURK: To operate a nuclear power 25 plant.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
147 1 JUDGE WARDWELL: To operate a nuclear 2 power plant.
3 MR. TURK: The regulation doesn't require 4 that an applicant that has more than one unit submit 5 more than one Environmental Report. An applicant who 6 wishes to submit a license renewal application must 7 have an Environmental Report segregated from it's 8 renewal application. Whether it's one unit or two 9 units or more, there's no requirement that separate 10 ER's be provided and in fact, if you did that, you 11 would probably ignore the cumulative impact of 12 operation of more than one facility so I think if an 13 Environmental Report addressed the combined impact of 14 operation of two facilities, you're going to get a 15 better informed and more appropriate discussion if you 16 segment and say, "Well, let's take a look at one plant 17 at a time", without regard to the total impact.
18 JUDGE WARDWELL: Well, if our goal is to 19 get as good an evaluation of the alternatives, than 20 shouldn't we also look at the partial power 21 application that would naturally be derived from a 22 separate ER and that being the motivated goal for why 23 it's worded in the regulation the way it is implying 24 that we're looking at a single individual plant?
25 And isn't it in fact, an individual plant NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
148 1 that's importance here for units that have completely 2 different systems and different boundaries, separate 3 analyses run for it? I mean, we have two individual 4 -- these two plants at Indian Point are very different 5 in regard to their designs and the analysis that were 6 done to perform those designs. Aren't they?
7 MR. TURK: Well, you do have separate 8 safety analysis. I mean, each plant is a different --
9 slightly different design, at least.
10 JUDGE WARDWELL: I notice you use the 11 phrase "each plant".
12 MR. TURK: Yes.
13 JUDGE LATHROP: Yes, I would like to ask 14 that question. Do the regulations define what a plant 15 is? That is, is a plant all the reactors at one site 16 or is it each reactor at a site?
17 MR. TURK: If you'll give me one moment.
18 JUDGE LATHROP: We're using plant in two 19 different senses here in my mind.
20 MR. TURK: I'm thinking in a very loose 21 sense.
22 CHAIRMAN McDADE: While you're looking 23 that up, I did just want to reference, I think the 24 statement by the State of New York that clear language 25 of the regulation is the first time I ever heard a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
149 1 putative intervener refer to NRC regulations and 2 plain language in the same sentence.
3 MR. TURK: Your Honor, the clear language 4 of the regulations does not define nuclear power 5 plant. It does define nuclear reactor but not power 6 plant. When I use the term "plant", I'm referring to 7 the combined -- refer to the combined facility, 8 although I may slip up sometimes and refer to a single 9 reactor at a site at a plant.
10 MR. SIPOS: And your Honor, just for 11 further reference, 10 CFR Section 50.52 has a -- 50.2, 12 has a term, defining the term production facility.
13 Production facility means, "1, any nuclear reactor 14 designed or used primarily for the formation of 15 plutonium or uranium-233". That may be of some 16 assistance in forming the Board's decision.
17 MR. TURK: I am instructed, your Honor, 18 there is clear language of the regulations it states, 19 and this is in Section 54.3, "Nuclear power plant 20 means a nuclear power facility of a type described in 21 10 CFR 50.21(b) or 50.22", and I thank the State for 22 clarifying that the language of the regulation is 23 clear, but it doesn't have a unit by unit definition 24 that I'm aware of, your Honor.
25 JUDGE WARDWELL: How -- Entergy, how could NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
150 1 one reconcile that each two individual units comprise 2 one plant when the individual units as alleged by New 3 York State in their reply have marked differences in 4 the number of systems, boundaries for similarly named 5 systems, and perform separate seismic analyses for 6 each of the units? Doesn't that naturally lead one to 7 believe they are separate plants?
8 MS. SUTTON: No, your Honor. We were able 9 to -- as explained in I believe, Chapter 2 and Chapter 10 3 of the license renewal application under the scoping 11 and screening methodological discussions, how one goes 12 about complying with 54.21 with plants that are 13 different as you've explained.
14 And we've indicated that even though they 15 are different, we comply with the expectations under 16 53.21 regarding the integrated plant assessment and 17 that methodology is fully described therein.
18 JUDGE WARDWELL: Well, there's no barring 19 you from submitting a license application for more 20 than one plant. It just seems like there difference, 21 isn't there, in what would be required for an ER.
22 MS. SUTTON: That's true. There are some 23 differences. There are also similarities in terms of 24 the type of aging management programs that are applied 25 across the units despite the differences in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
151 1 equipment. So it is logical and consistent with the 2 regulations to do them on a combined basis.
3 In addition, we'd like to point out that 4 the standard review plan for the review of license 5 renewal applications also indicates that to be 6 docketed an application must identify quote "the 7 specific unit (units) applying for license renewal 8 which gives us the comfort that, in fact, you can have 9 multiple units in a single application. And that 10 citation is to NUREG 1800 Revision 1, Table 1.1-1 and 11 1.1-5.
12 JUDGE WARDWELL: And I don't think New 13 York State is contesting you in regards to submitting 14 a license application for more than one plant/unit, 15 however you want to define it. All they're saying is 16 that the ER has to have separate ones for the two 17 plants for the very obvious reason is because without 18 that, you're going to take the position, no, our 19 proposal is strictly the combined power outages of 20 these two plants.
21 MS. SUTTON: That's what it is, your 22 Honor. That's the proposal, and you can file one 23 application and the regs make clear under 51.53(c)(1) 24 that you have to have a segregated ER per application 25 and that's what you've done.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
152 1 JUDGE WARDWELL: Per application or per 2 plant?
3 MS. SUTTON: Per application.
4 JUDGE WARDWELL: Thank you.
5 CHAIRMAN McDADE: Okay, I think we're 6 clear as to what the positions are of the parties on 7 Contention 4. Contention 5 says that the application 8 is inadequate because it does not provide adequate 9 inspection and monitoring for corrosion or leaks in 10 all buried system structures and components that 11 contain radioactively contaminant or may contain 12 radioactively contaminated fluids.
13 The initial response of the staff on that 14 as I understand it is this is part of the ongoing 15 operation, the monitoring for corrosion and therefore 16 is not part, not properly within the scope. A 17 question, isn't it valid what the State of New York is 18 saying that the nature of the monitoring that you 19 would do for a 50-year old pipe is different than that 20 monitoring you would necessarily do for a five-year 21 old pipe? So that even though you have ongoing 22 monitoring for the current facility which is part of 23 the current licensing basis, that that doesn't 24 necessarily mean that something more isn't going to be 25 necessary to insure that these, you know, buried NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
153 1 systems that contain radioactive fluids or may contain 2 radioactive fluids, are going to maintain their 3 integrity during this additional 20 years.
4 So what's the staff's position on that?
5 MS. SEXTON: Your Honor, Kimberly Sexton 6 for the staff. Our position is that there is a 7 difference between monitoring for leakage and 8 monitoring for corrosion. Monitoring for leakage is 9 a current operating issue as monitoring for corrosion 10 can be an aging management issue. And I think that 11 what the state is trying to propose is that monitoring 12 for leakage is something that isn't adequately 13 addressed in the AMPs, and therefore, it needs to 14 become more robust by adding in monitoring for leakage 15 as opposed to monitoring for corrosion.
16 JUDGE WARDWELL: Aren't they addressing 17 both? Isn't New York State addressing both in this 18 contention?
19 MS. SEXTON: It seems that the thrust of 20 the contention is monitoring for leakage, when 21 discussing simply monitoring.
22 JUDGE WARDWELL: Well, the thrust of the 23 contention is, isn't it the first word they used was 24 "corrosion", that is orally, so it seems to me it's 25 pretty even. Now, in regards to the discussion, they NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
154 1 may have emphasized more but --
2 MS. SEXTON: Well, in their Point 3, in 3 their bases, they say, "No adequate monitoring to 4 determine if and when leakage from the system 5 structures and opponents of curves.
6 JUDGE WARDWELL: How does one monitor for 7 corrosion of a buried pipe?
8 MS. SEXTON: Can I take a moment to 9 confer, please?
10 JUDGE WARDWELL: Sure. While you're doing 11 that, New York State, did you -- you used the phrase 12 "radioactively contaminated water or other fluids", in 13 your contention. Did you mean for the radioactively 14 contaminated to apply to both water and to the other 15 fluids or only to the water?
16 MR. SIPOS: I believe it's both, your 17 Honor.
18 JUDGE WARDWELL: It's both.
19 MR. SIPOS: Yes, there have been --
20 there have been incidents and indeed, there was an 21 incident last April, I believe, we have this in our 22 Contention, where steam vented up through a pipe 23 through the ground through the pavement, in a steam 24 pipe between Unit 2 and Unit 3, steam a form of water 25 but that's one example. It was aerosolized vaporized NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
155 1 in that system, in that situation. But there are 2 other types of systems, there are other types of --
3 there are other systems which convey other types of 4 fluid which could pick up radionuclides, depending on 5 the failure mechanism of the initiating system 6 structure or component.
7 JUDGE WARDWELL: If, in fact, the fluid, 8 whether it's water or gas or some other liquid, to be 9 more precise, whether it's a liquid or a gas, must 10 have radioactivity in it for you to be concerned in 11 regards to your contention. If it doesn't have 12 radioactivity in it, it is not part of your 13 contention. Is that correct or not?
14 MR. SIPOS: If it doesn't have and 15 couldn't have radionuclides in it.
16 CHAIRMAN McDADE: The operative word there 17 being "may", not necessarily that it need have them 18 but that it has the potential.
19 MR. SIPOS: Yes, yes, your Honor.
20 CHAIRMAN McDADE: And you need to monitor 21 the conduit through which it goes and also monitor for 22 leakage.
23 MR. SIPOS: Yes, your Honor.
24 CHAIRMAN McDADE: Okay.
25 JUDGE WARDWELL: But before that takes NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
156 1 place, there has to be some linkage to indicate why it 2 may in some potential future time have radioactivity 3 associated with that particular fluid.
4 MR. SIPOS: Yes.
5 CHAIRMAN McDADE: The sewer line from the 6 facility is not going to -- a pure sanitary sewer line 7 from the individual components that are there in the 8 various bathrooms.
9 MR. SIPOS: I actually think that begs the 10 question, I'm not trying to be difficult but what is 11 a pure line in that situation. It could have some 12 hydro-geological influence contamination and it could 13 cross the wall, the boundary and be picked up by -- I 14 mean --
15 JUDGE WARDWELL: But in order for someone 16 to make sure that this particular component, SSC, was 17 included in the aging management plan, or up for aging 18 management review or included in A of this effort on 19 regards to the inspections and monitoring associated 20 with it, there had to be some linkage or some 21 indication of why that might be rather than just say 22 it's a buried pipe in the ground that presently 23 doesn't carry -- doesn't have radioactive contaminated 24 fluid in it.
25 MR. SIPOS: You would have to show us that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
157 1 their AMR appropriately analyzed those systems, 2 structures and components for such a failure. I mean, 3 if it's their burden, we would raise the issue.
4 JUDGE WARDWELL: Thank you.
5 CHAIRMAN McDADE: Okay, getting back to 6 the staff.
7 MS. SEXTON: The way that monitoring is 8 taking place in Entergy's license renewal application 9 and Section B.16 are buried piping and tanks 10 inspection program. They discuss how they will go 11 about monitoring which is also consistent with the 12 goal of NUREG 1801,Section XI.M34, the buried piping 13 and tanks inspection.
14 JUDGE WARDWELL: And can you briefly 15 describe how is that done?
16 MS. SEXTON: Sorry, can you explain -- I 17 don't understand what you're asking.
18 JUDGE WARDWELL: Well, you were 19 emphasizing how it's the monitoring of corrosion and 20 not the monitoring of leaks and you were trying to 21 describe the difference between the two.
22 MS. SEXTON: Right.
23 JUDGE WARDWELL: And I as trying to probe 24 how one does monitoring for corrosion.
25 MS. SEXTON: Well, monitoring for leakage NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
158 1 is generally you look at changes --
2 JUDGE WARDWELL: I know how monitoring for 3 leakage.
4 MS. SEXTON: Okay.
5 JUDGE WARDWELL: I'm not worried about 6 that. I'm concerned about how you monitor for 7 corrosion without monitoring for leaks.
8 MS. SEXTON: You can do thickness 9 measurements and you can do that ultrasonically. You 10 can visually inspect the inside if the pipe is large 11 enough for corrosion within the pipe. So it's very --
12 you're looking at the pipe itself as opposed to 13 changes of water level and things like that.
14 JUDGE WARDWELL: Would you see the 15 corrosion in the pipe from the inside though?
16 MS. SEXTON: Correct.
17 JUDGE WARDWELL: Would you?
18 MS. SEXTON: Oh, yes, you could.
19 JUDGE WARDWELL: And it never occurred 20 from the outside in?
21 MS. SEXTON: There is external corrosion 22 that could occur which is taken care of, I think, by 23 one of the A&Ps submitted by Entergy, correct.
24 JUDGE WARDWELL: Well, maybe I'll go to 25 them and see if they can help elaborate more on how NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
159 1 one monitors for corrosion on these devices, these 2 SSEs.
3 MR. BESSETTE: More fundamentally, your 4 Honor, you know, we've committed to the program that 5 to the extent of the view plan as counsel for the 6 staff stated, B.1.1 buried piping of tanks and 7 inspection. We've committed to an entirety without 8 any exception. And simply New York is stating that's 9 not good enough because we're worried about corrosion.
10 Fundamentally, they keep talking --
11 we've been talking about leakage here today and 12 throughout their petition and their reply, it's not 13 leakage that's the focus of the program. As we 14 noticed in Pilgrim, the decision in Pilgrim stated 15 we're talking about loss of the function per 50.4 and 16 that's not what New York is talking about. They keep 17 talking about leakage.
18 And if you'll look on page 37 of their 19 reply, it says, "Need to prevent illegal release of 20 radioactive contamination into the environment".
21 That's to some, the gist of their contention. And 22 that's not the scope of license renewal. Per Pilgrim 23 it's loss of the function for 50.4 and we believe that 24 B.1.6 in the license renewal application which adopts 25 in its entirety the GALL program as stated, Roman NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
160 1 Number XI.M.34 satisfies it and we believe it's New 2 York's burden to state why that program is not 3 satisfactory and they haven't provided any basis other 4 than .2, prevention of leaks which is an ongoing 5 monitoring program.
6 Now we can consult with our experts here 7 on particulars of how to detect corrosion, but the 8 program itself requires buried components are 9 inspected when excavated during maintenance. There 10 are standard industry practices for maintaining 11 external codings and wrappings. If trending within 12 the corrective action program identifies susceptible 13 locations, the areas with the history of corrosion 14 problems are evaluated for the need for additional 15 inspection, alternate coding or replacement.
16 And this is prior to the entry of the 17 extended operation period, plant operating experience 18 will be reviewed to verify that an inspection occurred 19 within the past 10 years. If an inspection did not 20 occur, a focused inspection will be performed prior to 21 the period of extended operation. That's the program 22 Entergy is committed to and it's completely consistent 23 with the GALL and we believe it's up to New York to 24 say why that's not sufficient.
25 We don't believe they've done so with any NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
161 1 specificity beyond broad generalizations.
2 JUDGE WARDWELL: Could you -- I think you 3 have and correct me if I'm wrong, referenced that 4 challenges to GALL are a challenge to the regulation.
5 And what's your basis for saying that, if you, in 6 fact, did say that?
7 MR. BESSETTE: Could you rephrase the 8 question, your Honor, because I don't understand?
9 JUDGE WARDWELL: Did you not hear it or 10 did you not understand it?
11 MR. BESSETTE: I -- maybe I can clarify.
12 We have committed to implement the program of the 13 GALL. GALL is --
14 JUDGE WARDWELL: Is GALL legally binding?
15 MR. BESSETTE: The GALL is regulatory 16 guidance promulgated by the NRC and we --
17 JUDGE WARDWELL: Is it legally binding?
18 MR. O'NEILL: Your Honor, this is Martin 19 O'Neill, if I may interject. I don't think it was 20 ever intended to say that it's legally binding. It 21 clearly is guidance and there's case law to that 22 effect, but I think there's also case law to the 23 effect that the guidance is entitled to substantial 24 weight, special weight or deference from the staff.
25 It serves a very important function. It helps NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
162 1 streamline the licensing process, taking advantage of 2 lessons learned in this case, aging lessons, and you 3 know, the staff and the industry expended considerable 4 resources in developing these guidance and I think 5 there's a reasonable expectation that if you adhere to 6 the guidance, you comply with the regulations.
7 JUDGE WARDWELL: And the appropriate 8 weight of that can be judged in regards to that but to 9 say it is a violation of the regulations is 10 inappropriate, is that what you're --
11 MR. O'NEILL: That's correct. I clearly 12 never intended to say that.
13 JUDGE WARDWELL: You referenced Pilgrim, 14 is that correct?
15 MR. BESSETTE: Yes, I did, your Honor.
16 JUDGE WARDWELL: And in what sense does 17 that influence this particular question?
18 MR. BESSETTE: We understand that the 19 Pilgrim decision addressed the GALL as regulatory 20 guidance but I think it completely addresses this 21 issue that New York is raising that ongoing monitoring 22 of leakage of radioactive contamination to the ground 23 not associated with loss of function for 50.4 is 24 outside the scope of license renewal.
25 JUDGE WARDWELL: And Pilgrim was what type NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
163 1 of decision?
2 MR. BESSETTE: It's a license renewal 3 decision, your Honor.
4 JUDGE WARDWELL: By who?
5 MR. BESSETTE: A Board.
6 JUDGE WARDWELL: A Board.
7 MR. BESSETTE: Yes.
8 JUDGE WARDWELL: It wasn't a Commission 9 decision.
10 MR. BESSETTE: No, it was not a Commission 11 decision, your Honor.
12 JUDGE WARDWELL: And likewise the 13 appropriate weight for that was given in review of 14 this decision.
15 MR. BESSETTE: Absolutely, your Honor.
16 JUDGE WARDWELL: What is your reaction to 17 New York State's reply that they say it's not an issue 18 of trying to monitor the ongoing leaks. It's an issue 19 of trying to address future leakage and that's where 20 the aging management comes in? It's not an issue 21 dealing with ongoing leakage.
22 MR. BESSETTE: Well, your Honor, we 23 believe it's -- we have a program to address future 24 leakage per the aging management program we've defined 25 in B.1.6.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
164 1 JUDGE WARDWELL: Isn't that an issue to be 2 addressed at hearing then, to debate whether or not 3 it's -- the details of it are sufficient given that 4 none of them are absolute and that there's a 5 discussion still available to look at the merits of 6 whether or not there's sufficient inspection for the 7 corrosion?
8 MR. BESSETTE: Only, your Honor, if New 9 York has proffered some adequate support and they 10 haven't. It's pure speculation and again, what their 11 issue is not focused on which is loss of safety 12 function, they haven't said the program is inadequate 13 for loss of safety function. Their focus is on 14 monitoring leakage. So we don't believe they've 15 adequately challenged to provide anything other than 16 generalizations to support their contention that this 17 program is not adequate.
18 JUDGE WARDWELL: Is the dose limits, 19 exposure limits to workers and public a safety issue?
20 MR. BESSETTE: Not for 50.4, your Honor.
21 That's an Appendix I issue. That's occupational 22 exposure. The dose limits we're talking about are 23 accident dose limits and so a general leakage to the 24 environment for public dose for Appendix I is not a 25 50.4 function.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
165 1 JUDGE WARDWELL: How do you know that 2 isn't during an accident scenario? Why do you know 3 that might not necessarily be a pathway until that's 4 explored further in a merits issue, merits discussion 5 I should say?
6 MR. BESSETTE: Your Honor, it possibly 7 could, but in this case we don't know of any such 8 scenario. They haven't proposed such a scenario and 9 they haven't stated that. They just said they're 10 worried about just general leaks and the leaks they 11 cite throughout their petition are minor leaks of 12 utilities throughout the country. And they have not 13 been -- none of them resulted in any of the doses that 14 we're talking about here.
15 JUDGE WARDWELL: New York, how would you 16 respond to their comments in regards to your 17 contention?
18 MR. SIPOS: Our contention is supported by 19 a detailed declaration from Dr. Rudolph Hausler, who 20 discusses this issue in detail and highlights that one 21 of the failings here is that internal corrosion is not 22 the examined corrosion from the inside.
23 Moreover, if I heard staff correctly, 24 there also seems to be an agreement that monitoring is 25 appropriately within the scope and, indeed, there is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
166 1 a difference between a 50-year old buried pipe and a 2 five-year old buried pipe and New York State 3 respectfully submits that it has provided ample 4 specificity, more than that is required by the 5 regulations to support this contention.
6 The constant refrain about that the 7 Pilgrim proceedings somehow controls here misses the 8 mark of New York's contention. In Pilgrim the 9 intervener group sought the installation of monitoring 10 wells, I believe, to determine or to prove that there 11 was leakage going on. New York's contention is 12 different from that. It says there must be aging 13 management specific surveillance -- it's not 14 monitoring wells and I think some of the disconnect 15 between the parties here is a term has many meanings 16 or a term with different nouns after it has many 17 meanings.
18 New York is not asking in this contention 19 for monitoring wells. It is asking for increased and 20 appropriate inspection, surveillance or monitoring as 21 that term is used, and Dr. Hausler's declaration 22 supports it and we believe it is well within the scope 23 of this proceeding. It's clearly within the scope of 24 the proceeding.
25 JUDGE WARDWELL: Staff and then Entergy, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
167 1 are buried pipes containing radioactive -- radioactive 2 -- that contain fluids with radioactivity in them 3 considered part of the passive systems that require 4 aging management review?
5 MS. SEXTON: Not all buried pipes and 6 tanks containing radioactive fluid are considered 7 within the scope of license renewal. Only those that 8 meet the certain definition within 54 are. So it 9 would be incorrect for New York to state that all 10 buried piping and tank systems that may or may not 11 contain radioactive liquid or any liquid in general, 12 would be within the scope of license renewal.
13 JUDGE WARDWELL: And which pipes would not 14 meet the definition in Part 54, which buried pipes 15 that contain radioactive fluid would not meet that 16 definition of 54?
17 MS. SEXTON: Your Honor, I can't give you 18 a specific list of those pipes and tank systems?
19 JUDGE LATHROP: What category of pipes?
20 MS. SEXTON: It's any of the pipes and 21 tanks that have a safety function.
22 JUDGE LATHROP: So any pipe or tank that 23 could lead to loss of safety function must be 24 monitored, is that correct?
25 MS. SEXTON: I would say that those pipes NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
168 1 and tanks that contain a safety function would be 2 within the scope. Whatever aging management plan that 3 Entergy would then put forward in order to manage the 4 aging effects of those plants would be within the 5 scope, but monitoring or inspections or whatever 6 occurs from that is a separate issue than just merely 7 scoping in the systems.
8 MR. TURK: Could I have one second?
9 JUDGE WARDWELL: We'll now move onto to 10 Entergy to answer that unless it's real quick.
11 MR. BESSETTE: Your Honor, I guess, the 12 B.1.6 says it pertains -- the buried pipe and tanks 13 inspection program, pertains to the pressure retaining 14 capability of buried carbon steel, gray cast iron, and 15 stainless steel components. And then it lists eight 16 systems in which the program applies to; safety 17 injection, service water, fire protection, field oil, 18 security generator, city water plant drains and aux 19 feedwater. And those are the programs to which it 20 applies. It says of these six --
21 JUDGE WARDWELL: You say, you're quoting 22 from the GALL report, from the Standard Review Plan, 23 I'm sorry.
24 MR. BESSETTE: No, we're quoting from our 25 -- no, we're quoting from the Aging Management Program NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
169 1 in the application.
2 JUDGE WARDWELL: Okay, thank you.
3 MR. BESSETTE: And of those, only the 4 safety injection system contains radioactive fluids 5 during normal operation, of those eight systems, only 6 one contains radioactive fluid.
7 CHAIRMAN McDADE: Okay, if I could sort of 8 two things administratively right here before we 9 proceed, three things actually. One, let me just 10 again remind people to try to keep your voice up. As 11 it gets later in the day people get tired, their 12 voices tend to go down.
13 Secondly, after the break what I'm going 14 to do, we have one of our administrative assistants 15 here and I will ask her to sit in the back and if she 16 isn't able to hear you, to raise her hand and then I 17 will be able to urge you to speak. I don't want the 18 spectators just getting up and saying, "I can't hear".
19 So we'll put my administrative assistant out there and 20 again, remind you, please speak up to make sure that 21 as many people as possible can hear you.
22 The other thing, what I would propose to 23 do is that we proceed through Contention 5. The 24 question is probably another 10 minutes or so, take a 25 10-minute break and then come back after that break NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
170 1 and go until about 5:00 o'clock. Is that agreeable?
2 Does anyone have any objection to that by way of 3 schedule for the rest of the afternoon? Okay.
4 MR. SIPOS: No, your Honor.
5 CHAIRMAN McDADE: Okay, apparently not.
6 Okay. So let's go back.
7 JUDGE WARDWELL: We're back at staff. I 8 forgot why you wanted a break but -- why you needed 9 that break.
10 MS. SEXTON: I'd just like to bring your 11 Honors' attention to 10 CFR 54.4(a)(1) which defines 12 the scope of safety related systems which would be 13 encompassed of license renewal.
14 JUDGE WARDWELL: Thank you.
15 CHAIRMAN McDADE: Okay, if I could, just 16 a brief question for New York. I mean, one of the 17 issues here is whether or not this is within the 18 scope. Another issue certainly raised by the staff 19 and by the applicant in their reply is saying that, 20 you know, we have an adequate system. The system that 21 we currently have in place is adequate and it will 22 remain adequate.
23 They specifically site to various parts of 24 the license renewal application in that regard, you 25 know, B1.18, B63, you know, B1.29, you know, Surface NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
171 1 Water Integrity Program, Water Chemistry Control, 2 Auxiliary Systems, Water Chemistry Control, Primary 3 and Secondary.
4 I guess a question is to as succinctly as 5 possible why is what they're doing inadequate, if you 6 can just sort of summarize New York's position.
7 They've put forward what programs they're doing.
8 They're claiming it's adequate not just for now but 9 for the license renewal period. Why is it inadequate?
10 MR. SIPOS: Those programs, Judge McDade, 11 which you just referenced are not specifically 12 tailored to the concern that New York has to the 13 buried pipes and tanks. And there is, to be sure, a 14 proposal, a specific proposal, for that issue but New 15 York's contention supported by the declaration of Dr.
16 Hausler, is that that doesn't go anywhere near far 17 enough.
18 He identifies the systems at issue and 19 that the -- that the program, as contained -- the 20 suggested or described program as contained in the 21 license renewal application lacks meaningful 22 specificity.
23 CHAIRMAN McDADE: And to the staff first 24 and then to the applicant, why doesn't Dr. Hausler's 25 application raise a genuine issue that should go to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
172 1 hearing?
2 MS. SEXTON: Your Honor, the thrust of the 3 contention is focused way -- entirely too broad and 4 that their concerned with small leaks or -- and leaks 5 of radioactive liquid. Small leaks and leaks of 6 radioactive liquid are current operating issues that 7 are dealt with on a day-to-day basis at the plant.
8 They're not specific to license renewal or a period of 9 extended operation.
10 And I just want to point out that the 11 Aging Management Plan that Entergy has to submit to us 12 only has to manage aging so that leaks that could 13 interfere with the system structure or component's 14 ability to perform its safety function will not occur 15 because of aging. That AMPs are not meant to focus on 16 small leaks or leaks that don't interfere with the 17 safety function.
18 And to their contention is entirely just 19 too all-encompassing for what's necessary for the 20 staff to sign off on the LRA.
21 CHAIRMAN McDADE: Well, I mean, when you 22 talk about all-encompassing, I mean, one of the things 23 says and you in your reply, the staff in the reply 24 says it's not specific enough. They say all. Now, it 25 seems to me that all is pretty specific.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
173 1 MS. SEXTON: As we stated before, all of 2 the systems, structures and components that may or may 3 not contain radioactive fluid or liquid, those --
4 that's just saying -- throwing the kitchen sink at you 5 and then hoping that at some point that you, as the 6 board, is going to sharpen or clarify the contention 7 which the staff doesn't feel is the proper function of 8 a licensed -- of a board to do.
9 CHAIRMAN McDADE: But they're saying, 10 "We're concerned about those whole kitchen sink, we're 11 concerned".
12 MS. SEXTON: And --
13 CHAIRMAN McDADE: And they also said, 14 "We've looked at what's happened at other plants and 15 that informs the concern that we have. We've looked 16 at what's happened, you know, not just at Indian 17 Point. We've looked at what's happened elsewhere. It 18 raises a concern. We're concerned about all of these 19 systems and we don't think that what Entergy, as 20 proposed, adequately addresses the potential for all 21 of these systems. We want a hearing on it". And, you 22 know, maybe it will turn out to be correct, maybe it 23 will turn out not to be correct, but you know, haven't 24 they at least raised a sufficient question here to 25 warrant further inquiry at a hearing?
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
174 1 MS. SEXTON: They're going --
2 CHAIRMAN McDADE: And if not, why not?
3 MS. SEXTON: They're going beyond the 4 scope of what the AMPs are intended to cover. The 5 AMPs are not intended to cover the kitchen sink and so 6 therefore, it's not -- it's going entirely outside of 7 what the Commission requires Entergy to submit and to 8 manage in the period of extended operation.
9 CHAIRMAN McDADE: Okay, but they're saying 10 that if the kitchen sink has radioactive fluids in it, 11 it covered.
12 MS. SEXTON: But that's not what the 13 regulations specify. The regulations don't specify 14 that every system that contains radioactive fluid is 15 subject to an Aging Management Plan.
16 CHAIRMAN McDADE: Okay, what's Entergy's 17 take on this, Mr. Bessette?
18 MR. BESSETTE: Your Honor -- excuse me?
19 CHAIRMAN McDADE: Mr. Bessette?
20 MR. BESSETTE: Yes, we'd just like to 21 briefly, the State is relying on the declaration of 22 Dr. Hausler. We don't believe there's enough 23 specificity in it and if you read his declaration 24 itself, there's many statements of speculation. He 25 states he hasn't reviewed much actual data on page 6.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
175 1 He has statements like "One might suspect" on page 7, 2 "the actual source of corrosion is not clear" on page 3 7.
4 CHAIRMAN McDADE: But isn't he saying 5 because you guys don't monitor, he can't be more 6 specific?
7 MR. BESSETTE: But your Honor, statements 8 of his guesses of "it is possible", you know, "what 9 can be expected" is certainly not basis to say why 10 this Aging Management Program is insufficient. The 11 only example he provides is an example of a service 12 water leak that was identified above ground of five 13 drops per minute.
14 Clearly that is what we're talking about.
15 His speculation with regard to minor leakage is not 16 the intended function we're trying to protect by this 17 Aging Management Program and it's not governed by the 18 license renewal rules.
19 MR. TURK: May I add just one thing, your 20 Honor. I don't mean to double-team this but just to 21 make sure that this statement gets into the record, in 22 pleading a contention, it's a petitioner's obligation 23 to point to specific parts of the license renewal 24 application which it deems to be inadequate.
25 It's the state's burden here to point to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
176 1 specific AMPs that they think are not adequate for 2 monitoring. The proper scope of the program is 3 defined in 54.4 in (a)(1), (a)(2) and (a)(3) both with 4 respect to safety systems and non-safety systems.
5 It's the state's obligation to point to the AMPs 6 within that scope and say "This won't do the job.
7 You're not doing what the regulation requires you to 8 do". And in essence, it's our position that they've 9 raised a lot of different matters, including 10 radioactive leaks that may or may not be part of 11 systems covered in scope and they haven't pointed to 12 specific aspects of the AMPs that are deficient, which 13 is their obligation.
14 JUDGE WARDWELL: What's your response to 15 that?
16 MR. SIPOS: Briefly, your Honor, and by 17 way of example, in response to what Mr. Turk just 18 said, I'd refer the court -- I'd refer the Board 19 again, just by way of example, to Dr. Hausler's 20 declaration, paragraph 43. He discusses and analyzes 21 Aging Management Section B.2.2, quote, "Buried piping 22 and tanks inspection in the AMP". Associated with 23 that and discusses it and critiques it in detail.
24 Second, with respect to Entergy's attack 25 on Dr. Hausler, we did note in our reply a document NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
177 1 that they had docketed in the Pilgrim licensing 2 renewal case which we only found out about in January 3 after it was docketed on Adams, this is Entergy's 4 buried piping and tanks inspection and monitoring 5 program and it follows along the systems that Dr.
6 Hausler identified in his declaration. So we believe 7 that the criticism of Dr. Hausler is ill-based.
8 And also in our reply, we cited NRC 9 decisions that supported the contention that 10 highlights questions and concerns about all systems.
11 JUDGE WARDWELL: And by your saying that 12 Entergy's criticism of Dr. Hausler, you mean in 13 regards to him not being specific enough. It wasn't 14 necessarily a direct criticism of his particular 15 skills or ability that they were referring to earlier.
16 You're referring to their -- Entergy's allegations 17 associated with the non-specificity of those 18 arguments.
19 MR. SIPOS: I think Entergy had both those 20 criticisms if I may, and we believe a reading of Dr.
21 Hausler's declaration demonstrates that he was 22 detailed, that it does support the contention but 23 moreover, the Entergy document which we provide the ML 24 number for, further supports Dr. Hausler's analysis of 25 systems which should have an augmented inspection NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
178 1 program and what that program -- and the components of 2 what could be in that program.
3 CHAIRMAN McDADE: Okay, it's now five 4 after. Why don't we take a 10-minute break and come 5 back at 3:15? Is that sufficient time? Anyone need 6 longer? Apparently not.
7 (A brief recess was taken.)
8 CHAIRMAN McDADE: Please take your seats.
9 Okay. We'll come to order.
10 Before we proceed, there's one thing that 11 I did want to address by way of administrative. Our 12 current schedule calls for us to begin tomorrow with 13 the Town of Cortlandt, the State of Connecticut, and 14 then Riverkeeper. There is a question as to whether 15 we will finish with New York, given the fact that 16 we've finished five contentions, and it's 3:15, and 17 we're going to break at 5, so there's an outside 18 possibility we may not finish with New York today.
19 That said, I question how far we're going 20 to get with Riverkeeper tomorrow, so what I would ask 21 is when we break at 5:00, if the representatives of 22 Riverkeeper could just coordinate, so we could figure 23 out - instead of having people necessarily just 24 waiting, if we can at least address the possibility of 25 what time we might be starting with Riverkeeper NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
179 1 tomorrow, instead of making sure that everyone gets 2 here at 9:00 in the morning, and then waits for a 3 considerable period.
4 Okay. We're now moving on to Contention 5 Six. Okay. Contention Six is that the application 6 is inadequate because it does not have a specific plan 7 for aging management of non-environmentally qualified 8 inaccessible medium-voltage cables and wiring, for 9 which such aging management is required.
10 JUDGE WARDWELL: Why don't I start with 11 Entergy? And I think maybe I'll address both Six and 12 Seven, just to speed up time, because seven, 13 basically, is the same thing for low-voltage. And 14 while we've got a couple of other questions on low-15 voltage, there's many I think that are together with 16 this, so I'll ask.
17 Entergy, do these -- the inaccessible 18 medium and low-voltage cables fall within the issues 19 that need to be addressed as part of the license 20 renewal application?
21 MR. BESSETTE: Yes, Your Honor.
22 JUDGE WARDWELL: And has Entergy provided 23 a specific aging management plan for these components?
24 MR. BESSETTE: That takes -- I'd like to 25 take them one at a time. For the medium-voltage NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
180 1 cables, yes, there's a particular Aging Management 2 Program, and Appendix B of the application, B.1.23, 3 it's specific to Aging Management Program for medium 4 -- inaccessible medium-voltage cables. It is entirely 5 consistent with the GALL, no exceptions.
6 The Aging Management Program for 7 inaccessible low-voltage cables is encompassed within 8 Appendix B.1.25, Non-EQ Insulated Cables and 9 Connections Program.
10 JUDGE WARDWELL: Can you say that again, 11 that last bit again?
12 MR. BESSETTE: Yes. The low-voltage 13 cables are encompassed in the license renewal 14 application, Appendix B.1.25, and the Aging Management 15 Program is entitled "Non-EQ Insulated Cables and 16 Connections."
17 JUDGE WARDWELL: And is it clear within 18 that appendix that these -- that that specifically 19 applies to the low-voltage cables also?
20 MR. BESSETTE: No, Your Honor, but it is 21 encompassed. It doesn't apply to any particular 22 voltage. There was a -- the medium-voltage cables, my 23 understanding, has its own program because it was a 24 unique phenomenon associated with medium-voltage 25 cables. We have our experts here if we need to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
181 1 consult on that.
2 The low-voltage cables, they're just not 3 called out for a specific program. But the Non-EQ 4 Insulated Cables and Connection Program encompasses 5 all those components without specific regard to the 6 voltage.
7 JUDGE WARDWELL: Is there specificity 8 within those plans for both the medium and low-voltage 9 for the inaccessible cables?
10 MR. BESSETTE: The medium-voltage program 11 is specific to inaccessible cables, so, yes. The low-12 voltage program has inspections of accessible cables, 13 and based on the results of that, you then would apply 14 that to other accessible and inaccessible cables.
15 I'd like to clarify. B.1.25 references 16 the applicable program in the GALL, and the GALL 17 program has that specific requirement that the results 18 of the inspections of the accessible cables would then 19 be extrapolated to inaccessible cables. It's 20 specifically called out in the GALL. And, again, 21 we've committed to that program with no exceptions.
22 JUDGE WARDWELL: But someone could very 23 well challenge the adequacy of that leap of faith in 24 applying the inspections for the accessible low-25 voltage cables to the inaccessible cables, that might NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
182 1 warrant a hearing to affect all the issues associated 2 with that.
3 MR. BESSETTE: Your Honor, to do so, they 4 would have to -- in our opinion, they would have to 5 establish why the program that we've committed to in 6 B.1.25 is not acceptable for the Indian Point 7 facility. Considering that it is consistent with the 8 Standard Review Plan, as Mr. O'Neill said, and it's 9 persuasive authority, we don't believe that there is 10 any basis, or that New York has provided any basis to 11 state why that program isn't satisfactory. Just 12 saying it's not good enough, for us, is not good 13 enough.
14 CHAIRMAN McDADE: Isn't what New York 15 saying is that you have committed to a program, but 16 that you have not provided details of the program to 17 be implemented; and, therefore, that it's 18 insufficient? In other words, they're looking to 19 criticize your program, and they say we don't know 20 what it is. We can't criticize it, because you're 21 saying we can't be specific enough, and we're saying 22 we, New York is saying we can't be specific enough 23 because your program, at this point, isn't specific 24 enough. It's sort of we will develop a program, but 25 you don't have adequate sufficiency.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
183 1 MR. BESSETTE: Your Honor, the program is 2 defined in the application. It's in B.1.23, and 3 B.1.25, and it references the applicable sections of 4 the GALL. So for them to say it's not defined, 5 candidly, it is defined. It's in the Appendix B in 6 the license renewal application, which references the 7 applicable sections of the GALL, where it's further 8 defined. And, also, pursuant to 54.29, the applicant 9 is allowed to state actions haven't been identified, 10 or will be taken with respect to matters identified.
11 So, therefore, we are allowed to make commitments, as 12 a preliminary matter. And, second, the programs are 13 defined, they're defined in Appendix B, and they're 14 defined in the GALL, which is referenced in Appendix 15 B.
16 JUDGE WARDWELL: Are you saying that 17 there's enough specificity in GALL that's unambiguous 18 in regards to anyone reading it to challenge that 19 particular program?
20 MR. BESSETTE: Certainly, Your Honor. And 21 if you wanted to challenge it, you'd have to be 22 specific with regard to why is it sufficient, and to 23 what components it's not sufficient, and provide a 24 basis, and there simply is no basis.
25 CHAIRMAN McDADE: Okay. Well, let me just NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
184 1 again clarify in my own mind here, because as I kind 2 of see this, I've got everybody on a different base.
3 You're saying we have adequately described the 4 program. And as I read the staff's reply, the staff 5 reply is not that you have adequately defined the 6 program, but, rather, the regulation allows you to 7 make a commitment to develop a program that will 8 comply with NUREG 1801, and that's what you've done.
9 And then we have New York that says no, you haven't, 10 and no, the commitment is inadequate. So I'm just 11 trying to get everybody on the same base so I know 12 where to throw the ball.
13 MR. BESSETTE: Your Honor, we believe the 14 basic elements of the program are defined in our 15 application and the GALL. The GALL does have elements 16 that rely on future commitments and future 17 inspections, so that's perhaps where the confusion is.
18 The programs we are relying we believe are adequately 19 defined, but they do rely on future commitments, and 20 future development. But we believe that's 21 satisfactory. For New York to say that there's no 22 program is disingenuous.
23 JUDGE WARDWELL: You said no plan, and I 24 guess that's maybe where the difference in terminology 25 comes in.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
185 1 MR. BESSETTE: Well, Your Honor, we could 2 pull out the GALL and go through the various elements 3 of the GALL, and if we need to, to identify each of 4 the elements.
5 JUDGE WARDWELL: What is the purpose for 6 allowing commitments to be determined in the future?
7 Why not do it now?
8 MR. BESSETTE: Well, it is based on 9 operating experience. And the fact is that you 10 haven't entered the renew term yet.
11 JUDGE WARDWELL: What more operating 12 experience do you need than the past how many years 13 it's been that you've been operating the plant?
14 MR. BESSETTE: Your Honor, are you asking 15 why the regulations allow us to make future 16 commitments?
17 JUDGE WARDWELL: Well, I thought these 18 were in the GALL that you were addressing in regards 19 to future commitments.
20 MR. BESSETTE: I am, Your Honor, but I 21 also quoted the appropriate sections of the regulation 22 that allow us to make commitments. So, therefore, the 23 commitments for future action in the GALL are 24 authorized by the regulations.
25 JUDGE WARDWELL: And how does one draw the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
186 1 line of whether it's an appropriate future commitment 2 that's allowable by that, or one that's really just 3 trying to circumvent any vetting by public discussion 4 of it? Because I assume that these future commitments 5 will take place under normal operating conditions that 6 won't have any chance whatsoever to be heard or 7 discussed in regards to differences of opinion of how 8 those should be addressed and implemented.
9 MR. BESSETTE: We believe the programs --
10 again, we meet the definitions of the program for the 11 GALL. GALL, as Mr. O'Neill stated earlier, is based 12 on ample and detailed industry and staff consultation, 13 and we believe the programs are adequate. We believe 14 there's an assumption of adequacy there based on 15 operating experience, based on all the plants that 16 have gone before us. So, therefore, we believe 17 there's a presumption of adequacy, unless otherwise 18 shown not to be based on the particular circumstances 19 of this site.
20 CHAIRMAN McDADE: Okay. From the 21 standpoint of the NRC staff, as I said, perhaps I 22 misinterpreted the statements of the NRC staff in 23 their answer, but do you agree with what Entergy has 24 just said, that they do have a program. The program 25 is adequate, or is it your position that they simply NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
187 1 made a commitment to develop an adequate program?
2 MR. ROTH: Well, as I understand what they 3 said, is that their program is a commitment to have a 4 program that meets GALL. I heard them mention ten 5 elements, and it may be helpful to run through what 6 this means to have the commitment for GALL.
7 The GALL is the Generic Lessons Learned 8 for Aging, and the staff have taken the position that 9 if you have a program that will demonstrate that it 10 meets the elements of GALL, that that is one way to 11 show you're adequately managing the effects of aging.
12 In our NUREG, I was looking for the GALL, 13 but I pulled the NUREG up first. And the Standard 14 Review Plan NUREG, there's a table in the back that 15 talks about ten elements. I'll have the table number 16 here in a second. It's Table A1-1, Elements of an 17 Aging Management Program for License Renewal. And 18 those ten elements, which include the scope, include 19 preventive actions, include parameters monitored or 20 being inspected, detection of aging effects, 21 monitoring and trending, and there's five others, of 22 course.
23 What the staff would use, is the staff are 24 looking to see is there enough information to show 25 that this future commitment is adequately described.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
188 1 CHAIRMAN McDADE: Okay. And that's --
2 what was the Table, again, you referenced?
3 MR. ROTH: In the Standard Review Plan, 4 it's Table A1-1.
5 CHAIRMAN McDADE: Okay. And is that NUREG 6 1801?
7 MR. ROTH: NUREG 1800 is the Standard 8 Review Plan.
9 CHAIRMAN McDADE: 1800, okay.
10 MR. BESSETTE: Your Honor, the GALL 11 program we discussed is in Section 11.E(3) for 12 inaccessible medium-voltage cables.
13 JUDGE WARDWELL: 11.E(3). What is it for 14 the low-voltage, as a general one, right, that isn't 15 specific in regards to voltage?
16 MR. BESSETTE: I'll get back to you, Your 17 Honor. We're searching for it.
18 CHAIRMAN McDADE: New York, what's your 19 reaction?
20 MR. SIPOS: Where's the beef? There is 21 nothing in the license renewal application that 22 provides much in the way of specificity, nor, dare I 23 say, GALL. It says test every 10 years, and look in 24 manholes every 2 years. That opens so many questions.
25 Moreover, it's a program -- I think we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
189 1 heard just recently, just a few moments ago, it's a 2 commitment to have a program. That's like a promise 3 to agree, a promise to promise. And staff was very 4 clear in their answer that this is a new program. And 5 we have a very, very thin attempt to briefly describe 6 it. And New York's contention provides the adequate 7 specificity that this program for medium-voltage 8 inaccessible non-environmentally qualified cables is 9 not sufficient, and it provides citations to reports 10 concerning cable aging management realities.
11 And to come to Section 54-29, the Board 12 and the Commission need to make these determinations 13 before the license is renewed. And interveners, 14 petitioners must have the ability to challenge it. It 15 can't be beyond the scope simply by saying well, we'll 16 get around to that when we consider our operating 17 experiences, whenever that may be. It's a promise to 18 promise, and it's nothing more than that.
19 JUDGE WARDWELL: Can you elaborate a 20 little bit more on how specific you are in regards to 21 challenging this for both medium and low-voltage, and 22 is there a difference, in your opinion? What's the 23 difference, also, in your contentions between medium 24 and low?
25 MR. SIPOS: Yes, there is a difference.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
190 1 With respect to low-voltage inaccessible non-2 environmentally qualified cables, New York State 3 submits that the plain text of the license renewal 4 application contains no program whatsoever. It 5 doesn't exist, and it's inadequate. And Entergy's 6 suggestion --
7 JUDGE WARDWELL: If it doesn't exist, how 8 can it --
9 MR. SIPOS: Well, it doesn't exist. And 10 Entergy's suggestion that the Board provide some 11 assistance by inserting the words "low-voltage" is --
12 again, New York submits it runs afoul of the strict 13 by design rule. Entergy knows how -- Entergy surely 14 understands the difference between high-voltage, 15 medium-voltage, and low-voltage. They've used the 16 term low-voltage elsewhere in their documents.
17 Clearly, if they meant it to include low-voltage, they 18 could have easily done so here; yet, for whatever 19 reason, they decided that they would not.
20 Also, in our Contention, this is 21 Contention Seven, the low-voltage contention, New York 22 made clear that Indian Point relies upon low-voltage 23 cables for various safety-related functions. And that 24 I won't say it is unique for reactors in the country, 25 but it is -- that is a distinguishing feature for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
191 1 Indian Point. So the low-voltage cables are very 2 important for consideration, and for operation during 3 the license renewal period.
4 Coming back to Contention Six, the medium-5 voltage inaccessible non-environmentally qualified 6 cables, the contention there is what is proposed is 7 inadequate, and that the promise, and I believe it's 8 V.1.23, is some test in 10 years, and we're going to 9 get around to fleshing that out in the future.
10 Stating that that is inadequate, clearly falls within 11 2309, as it does for Contention Seven. And we identify 12 the aging management mechanisms that affect cables.
13 JUDGE WARDWELL: Well, how do you address 14 their criticism of you saying it's just inadequate is 15 not being specific enough. In what regards is it not 16 inadequate?
17 MR. SIPOS: We cited various --
18 JUDGE WARDWELL: Not adequate.
19 MR. SIPOS: We cited various governmental 20 -- I'm sorry. We cited various governmental 21 documents. I believe the first one was a Sandia 22 report on cable aging mechanisms, which discussed 23 those mechanisms in detail, and made certain 24 suggestions about how one could manage it. We 25 contrasted it with the program for accessible cables NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
192 1 and how those are reviewed. Those are two examples of 2 the specificity that we provided on that, Your Honor.
3 MR. BESSETTE: Your Honor, we promised to 4 get back to you on the program that we were talking 5 about, the low-voltage. It's in the GALL, Section 6 XI.E.1. And if we could briefly address some of the 7 comments of New York.
8 They point to the fact that we don't have 9 a particular program for low-voltage cables, because 10 there simply is no requirement for one. The aging 11 phenomenon for medium-voltage cable, as described in 12 the GALL, it's very different for low-voltage cable.
13 That's why there's a particular program for medium-14 voltage cable. There's no requirement for a specific 15 program for low-voltage cables, and they have not 16 cited one. And with regard to the medium-voltage 17 cables, again, they've just said it's inadequate.
18 They simply haven't said it's inadequate.
19 With regard to the industry standards that 20 they say we haven't addressed, they're all included as 21 references in the GALL report, so the GALL report, on 22 which we rely, considers the very references they're 23 saying we should consider, including the Sandia 24 report.
25 And, finally, Your Honor, Item 4 in all NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
193 1 these programs includes inspection criteria, detection 2 of aging effects. And that's very specific types of 3 aging effects and inspections that will be conducted 4 for the medium-voltage cables, and the program in 5 XI.E.1. So, again, the references they say we haven't 6 addressed are included in the GALL report. There's no 7 requirements for the program they say we should have, 8 and the detection of aging effects, they say there's 9 no criteria. It's specifically laid out in the GALL, 10 itself, which we specifically reference in the 11 application. So, again, we just don't see that 12 there's any basis for them to say that what we've done 13 is inadequate.
14 JUDGE WARDWELL: Didn't you admit that the 15 low-voltage cables do fall under components that are 16 within the scope of the license renewal application, 17 and for aging management review?
18 MR. BESSETTE: Yes, we do, Your Honor, and 19 they're covered by the license renewal application 20 program, B.1.25, Non-EQ Insulated Cables and 21 Connections. We believe it's encompassed in there.
22 JUDGE WARDWELL: But you're referencing --
23 I mean, you're saying it's not part -- it's not 24 required, and you, I believe, are alluding it's not 25 required by the GALL report. Correct?
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
194 1 MR. BESSETTE: Your Honor, I was saying it 2 was not -- I apologize if I was confusing you. I'm 3 saying it's not required to have a particular program 4 of its own, such as medium-voltage cables.
5 JUDGE WARDWELL: But couldn't that be an 6 issue that's up for hearing, that one could take the 7 position the reason it isn't is because most plants 8 don't rely on it for safety issues, and it's not part 9 -- it's generally not considered part of the 10 components that are required for aging management 11 review at most other plants. So it's obvious why they 12 haven't required, or presented a specific plan in the 13 GALL report, and that being only a guidance document 14 as it is.
15 MR. BESSETTE: Well, that may be a basis 16 for a revised contention, Your Honor, but that's not 17 the contention they've raised. They haven't said why 18 we're different. They haven't said why these cables 19 function different than any other plant around the 20 country. Again, they just haven't said why -- what 21 the industry program, and the NRC-approved program 22 that we're relying on is insufficient for this 23 application. By saying that low-voltage cables play 24 an important function, we don't disagree. They're in 25 our programs. They're addressed by our programs.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
195 1 That's just not a basis a contention that says you 2 need a separate program.
3 JUDGE WARDWELL: Are low-voltage cables at 4 all your other plants when you go through a license 5 renewal fall under, within scope of that?
6 MR. BESSETTE: One minute, Your Honor.
7 Your Honor, the license renewal applications we're 8 familiar with for other Entergy's plants include that 9 Non-EQ Insulated Cables and Connections Program, and 10 that does not exclude any voltage levels. So, yes, 11 it's very -- it's consistent with the other plants, 12 and it's consistent with the GALL.
13 JUDGE WARDWELL: I think where I was 14 trying to go with the questioning was to get a feeling 15 for how many other plants have low-voltage cables that 16 fall within the scope of the license renewal 17 proceedings, specifically that require aging 18 management review. Do all of them, none of them, or 19 half of them, whatever?
20 MR. BESSETTE: Your Honor, all the cables 21 are in scope, but due to the bounding effect, I mean, 22 the bounding analysis. We don't pick out particular 23 cables. Through the process allowed pursuant to the 24 license renewal program, you're allowed to take 25 bounding approach to electrical cables, and that's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
196 1 what we've done here, so they're all in scope.
2 JUDGE WARDWELL: Thank you.
3 CHAIRMAN McDADE: Let me ask, on 4 Contention Eight, which is basically a similar 5 contention having to do with transformers, the NRC 6 staff represents that Section 54.21(a)(1)(i) does not 7 require an aging management review for transformers.
8 Can you explain how the staff came to that conclusion?
9 MR. ROTH: Sure, Your Honor. Now for 10 transformers, transformers are considered to be active 11 components.
12 CHAIRMAN McDADE: I'm sorry. I couldn't 13 hear you.
14 MR. ROTH: I said transformers are 15 considered to be active components. They're not long-16 lived passive components. They're not something that 17 is going to require a separate AMP by it, and that's 18 how we've interpreted this through our Standard Review 19 Plan.
20 JUDGE WARDWELL: So you're saying that no 21 transformer is within the scope of the license renewal 22 application?
23 MR. ROTH: Well, we're separating scope 24 from need and aging management program. Something can 25 be -
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
197 1 JUDGE WARDWELL: Could you speak a little 2 louder, please?
3 MR. ROTH: Something could be within 4 scope, but be active. You look at it and say is this 5 something we need to look at? Is this a passive long-6 lived component that performs one of the functions 7 described in 10 CFR Part 54.4. If it's a passive 8 component, then you're going to have to make sure you 9 do aging management review on it. You might have an 10 Aging Management Plan for it. If it's considered to 11 be an active component, as transformers are, then you 12 don't need to have the plan on it. If the equipment 13 starts to act up and fail, it's not passive, it's 14 something that has continuous monitoring through day-15 to-day operations.
16 CHAIRMAN McDADE: Okay. And what specific 17 language in 54.21 do you refer to there?
18 MR. ROTH: A.1(i).
19 CHAIRMAN McDADE: Okay. And are you 20 specifically using the language "without moving 21 parts", or what language are you looking at?
22 MR. ROTH: Well, I believe in our answer 23 that we're clear that we interpret the transformers to 24 be the same. They are considered to be an active 25 component. That's how the staff interpret them.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
198 1 Clearly, it's --
2 JUDGE WARDWELL: How did you determine 3 them to be active? That's, I think, the heart of the 4 question that I have.
5 MR. ROTH: Let me consult with Tech Staff 6 for a second here.
7 JUDGE WARDWELL: Sure.
8 MR. ROTH: All right. Thank you, Your 9 Honors. In NEI 95.10, which is a document that 10 describes how the staff conducts its standard, or how 11 the staff conducts license review plans, there is 12 Attachment -- there is a description that describes 13 how the staff came to that conclusion in the NEI 14 documents. And if you pardon me for a moment, I can 15 pull up the exact reference. Basically, it's the 16 staff's determination as to why transformers are 17 considered to be active components in the same genre 18 as power supplies.
19 CHAIRMAN McDADE: Well, how about discuss 20 any of it? I mean, you said that the staff interprets 21 the regulation as excluding transformers, just as it 22 excludes other power supply-related structures and 23 components. So what is the language in 54.21 that you 24 rely on?
25 MR. ROTH: The explicit language does not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
199 1 exist in 54.21.
2 CHAIRMAN McDADE: Then why did you say 3 that it's because of 54.21? You said 54.21 doesn't 4 require it, so what specific language in there do you 5 rely on? And you say there is none, so then 54.21 6 does not explicitly exclude it. Correct?
7 MR. ROTH: Correct. It specifically 8 excludes power supplies.
9 CHAIRMAN McDADE: Where?
10 MR. ROTH: In the NEI 95.10 guidance, in 11 the attachment to it. The staff have taken the 12 position that a transformer is equivalent to a power 13 supply for purposes of that regulation.
14 CHAIRMAN McDADE: Okay. What is the 15 language, specifically, again for that -- look at the 16 transcript, whether it's the fifth or sixth time I 17 asked the question. What's the language in 54.21 you 18 rely on?
19 MR. ROTH: The language would be excluding 20 power supplies in the 54.21. And then that has to be 21 interpreted with the staff's interpretation that a 22 transformer is treated as a power supply. And, Your 23 Honors, the transformer is not listed in 54.21. It's 24 not listed as an exclusion. And I apologize if that 25 was unclear from our pleading, but the intent was to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
200 1 say the staff is interpreting transformers to be 2 incorporated as power supplies.
3 JUDGE LATHROP: Could you elaborate 4 further on the distinction between active and passive 5 components, and why an active component doesn't 6 require a plan?
7 MR. ROTH: Because the plans are for the 8 passive components, the passive long-lived components.
9 I'll try pull up some better explanation for us.
10 CHAIRMAN McDADE: Perhaps, if you could 11 help me. I'm still going back -- where is the 12 language? Are you dealing with the 10 CFR book?
13 MR. ROTH: Yes.
14 CHAIRMAN McDADE: Okay. And, 15 specifically, on 54.21, you're on page 105?
16 MR. ROTH: Yes.
17 CHAIRMAN McDADE: Column One?
18 MR. ROTH: Yes, 54, it's Column One, about 19 a third of the way down the page. It talks about 20 "components that perform an intended function, as 21 described in 54.4, without moving parts, without a 22 change in configuration or properties". Then it says, 23 "These structures or components include", then it goes 24 through a long list, and after about halfway through 25 the include is the word "excluding, but not limited to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
201 1 pumps, motors", and keeps going, and eventually hits 2 "power supplies". It's actually "power supplies is 3 the third and second to last words in 54.21-A.1.(i).
4 CHAIRMAN McDADE: Okay. And then the jump 5 to that is in NEI 95-10, is you interpret that 6 language to include transformers.
7 MR. ROTH: Correct, Your Honor.
8 CHAIRMAN McDADE: Okay. I may have 9 stepped on your question, Judge Lathrop. I apologize.
10 MR. ROTH: And, Your Honors, I have the 11 page in 95-10. And it would be Attachment at C-11.
12 JUDGE LATHROP: And the rationale is that 13 these active components can be determined to be in 14 difficulty before they fail, is that the idea?
15 MR. ROTH: That's, essentially, the idea.
16 The NRC staff position is described there, and I could 17 try to summarize it, if you give me a minute to look 18 through it, but that is the essential rationale behind 19 it. And my co-counsel has pointed out that's not the 20 staff's position, that's Commission's position.
21 CHAIRMAN McDADE: And how -- you say 22 Commission position, articulated how?
23 MR. ROTH: Let me consult with co-counsel 24 for a moment, please.
25 CHAIRMAN McDADE: And you had some NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
202 1 comment, Entergy?
2 MR. BESSETTE: Yes, Your Honor. In 3 particular, if you look at the language in the 4 regulations regarding moving parts, in 10 CFR 54.21-5 A.1.i, at the first sentence it says, "That perform an 6 intended function as described in 54.4 without moving 7 parts, or without a change in configuration or 8 properties." So that language is in regulation, 9 itself.
10 The letter that I believe counsel for the 11 staff was talking about is a letter dated September 12 19th, 1997 from the Nuclear Regulatory Commission 13 staff specifically on the function of transformers.
14 And the staff position references a statement of 15 consideration on this issue, where the Commission 16 concluded that an aging management review is required 17 for passive long-lived structures and components 18 within the scope of license renewal. "The Commission 19 has determined that passive structures and components 20 for which aging degradation is not readily monitored 21 are those that perform an intended function", again, 22 "without moving parts or a change in configuration and 23 properties. The statement's consideration also 24 states, "The Commission has concluded that a change in 25 configuration or properties should be interpreted to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
203 1 include a change in state which is a term sometimes 2 found in the literature relating to passive." So the 3 Commission has determined exactly what the staff is 4 talking about.
5 With regard to transformers, the NRC's 6 position is, "Transformers perform their intended 7 function or change in state by stepping down voltage 8 from a higher to a lower value, stepping up voltage to 9 a higher value, or providing isolation to a load.
10 Transformers perform their intended function through 11 a change in state similar to switch gear, power 12 supplies, battery chargers, and power invertors, which 13 have been excluded in 54.21-A.1.i from an aging 14 management review."
15 Skipping on, "Any degradation to the 16 transformer's ability to perform its intended function 17 is readily monitored by a change in the electrical 18 performance of the transformer and associated 19 circuits. Trending electrical parameters during 20 transformer surveillance and maintenance, such as 21 Dolby test results and advanced monitoring methods, 22 such as infrared thermography, electrical circuit 23 characterization and diagnosis provide a direct 24 indication of the performance of the transformer.
25 Therefore, transformers are not subject to an aging NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
204 1 management review."
2 CHAIRMAN McDADE: Okay. And you were 3 reading from?
4 MR. BESSETTE: This is the -- I was 5 reading from the regulations, the Statement of 6 Considerations, and a September 19th, 1997 letter from 7 Christopher Grimes, Director of the License Renewal 8 Project at the NRC to the Nuclear Energy Institute.
9 And it's called, "Determination of Aging Management 10 Review for Electrical Components."
11 And, again, just to clarify, we're not 12 saying transformers are not within the scope of 13 license renewal. There are transformers that perform 14 an intended function. It's just that if they have an 15 active component, they don't require an aging 16 management program, and we just need to make that 17 clear. Certain transformers are in scope, but that 18 doesn't mean you need an aging management program, and 19 that's how we evaluate it, whether they're passive or 20 active components. And that's pursuant to 54.21-21 A.1.i.
22 CHAIRMAN McDADE: Okay. Thank you.
23 JUDGE WARDWELL: Now you just confused me.
24 He thanks you, but I now --
25 CHAIRMAN McDADE: Well, that goes back, I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
205 1 think, to the question I asked originally, is whether 2 or not they were relying on that, on the language 3 "without moving parts", or "without a change in 4 configuration or properties." And, initially, I 5 thought the answer was no, we're not relying on that, 6 so that's what sort of led us on. Now you're 7 indicating that that language is operative here in 8 setting the standard.
9 MR. BESSETTE: Yes, Your Honor.
10 CHAIRMAN McDADE: And then the rest flows 11 from that as an interpretation --
12 MR. BESSETTE: Yes, Your Honor.
13 CHAIRMAN McDADE: -- of certain 14 transformers based on that language.
15 MR. BESSETTE: And many other components 16 subject to aging management programs.
17 CHAIRMAN McDADE: Okay.
18 JUDGE WARDWELL: I don't know where to 19 begin. You said that some transformers do require 20 aging management review, or what was it you said in 21 regards to some transformers do this, and some 22 transformers aren't.
23 MR. BESSETTE: If you take the role of the 24 transformers at the plant.
25 JUDGE WARDWELL: Yes.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
206 1 MR. BESSETTE: You then do your initial 2 scope and say which components are within license 3 renewal scope if you perform a function of 54.4? So 4 then you take the larger -- the world of transformers 5 at the site, and then you take a smaller subset of 6 those transformers that perform a function for 54.4, 7 so you have a smaller subset. And then -- and that's 8 what you do with all the components at the site. And 9 then you determine are those transformers -- do they 10 need an aging management program? And that's based on 11 the criteria we just talked about, as whether they 12 perform a function without moving parts, or without a 13 change in configuration or properties. So they could 14 very well be in scope, but managed by ongoing 15 maintenance programs, or they could be in scope and 16 need an aging management program. And based on the 17 function of transformers, the electrical properties of 18 a transformer, and consistent with the same properties 19 that are excluded for switch gear, transistors, 20 batteries, power invertors, battery chargers, and 21 power supplies, it's generally accepted that the 22 transformers are similar to that, and perform their 23 function by having a change of state; therefore, no 24 aging management program is required.
25 JUDGE WARDWELL: And no aging management NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
207 1 program is required for some transformers, but not 2 all. Is that what you're saying?
3 MR. BESSETTE: No, Your Honor. All 4 transformers.
5 JUDGE WARDWELL: For all transformers.
6 MS. SUTTON: Your Honor, if I may, license 7 renewal is a two-step process. You begin with 8 scoping, Part 54.4, and this is for any equipment.
9 And then you move to screening, so-called screening 10 analysis for aging management review. And what we're 11 saying is the equipment is scoped in because it meets 12 the criteria of 54.4, but then when you perform the 13 screening analysis under 54.21, it gets screened out 14 because it's active short-lived equipment.
15 JUDGE WARDWELL: So when you were talking 16 before about some are in, and some are out, you were 17 referring only in regards to the scoping, not in 18 regards to the aging management.
19 MR. BESSETTE: Yes, Your Honor.
20 MS. SUTTON: That's correct.
21 JUDGE WARDWELL: Thank you.
22 MR. TURK: I have a response for Judge 23 Lathrop. You had asked about active components versus 24 passive components. And in the 1995 Statement of 25 Consideration accompanying those revisions to 10 CFR NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
208 1 Part 54 at page 22.471, Volume 60 of the Federal 2 Register, the Commission stated:
3 "On the basis of consideration of the 4 effectiveness of existing programs which monitor the 5 performance and condition of systems, structures, and 6 components that perform active functions, the 7 Commission concludes that structures and components 8 associated only with active functions can be generally 9 excluded from a license renewal aging management 10 review. Functional degradation resulting from the 11 effects of aging on active functions is more readily 12 determinable, and existing programs and requirements 13 are expected to directly detect the effects of aging."
14 JUDGE LATHROP: Thank you.
15 JUDGE WARDWELL: New York State in their 16 reply said that based on one of your requests for 17 additional information in September, that they allege 18 that you, staff, has admitted that transformers fall 19 under aging management review. What's your response 20 to that reply?
21 MR. ROTH: Our response to that is as we 22 put in our pleading, they are misreading what the RAI 23 was asking for. The staff were not asking for an 24 aging management program on the transformer, they 25 were, instead, going up to the high-voltage breaker NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
209 1 and other components in the switch yard, so that's not 2 up to and including the transformer, that's up to the 3 transformer. I believe that's what the staff's RAI 4 was.
5 JUDGE WARDWELL: Thank you.
6 MR. ROTH: So that's a scoping question.
7 MR. SIPOS: Your Honor, if I may briefly 8 respond to a question that Judge Lathrop had. In our 9 supporting Declaration from Paul Blanche, there is a 10 statement that "transformers function without moving 11 parts, or without a change in configuration or 12 properties as defined in the regulation. A current 13 runs through them, but they don't move." I'm 14 paraphrasing there.
15 The documents that are cited by Entergy 16 and staff in the last 10 minutes do not preclude this 17 Declaration. And as Deputy Attorney General 18 Denerstein pointed out this morning, just last year 19 there was an explosion and fire of a transformer that 20 required the plant to come down, one of the units to 21 come down. So we believe following the test set forth 22 in 54.21, that transformers certainly may be included 23 within that, and we cited Paul Blanche's Declaration 24 in support of that.
25 JUDGE WARDWELL: Have you provided any NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
210 1 challenge to the linkage that staff and Entergy has 2 provided here in regards to comparing transformers to 3 power supplies, where one might also say gee, a power 4 supply doesn't have any moving parts, and doesn't 5 change configuration; yet, it's been excluded because 6 of its not obvious moving parts and configuration, but 7 the more abstract moving parts changing in 8 configuration as I interpret what was read to me in 9 regards to the rationale for the linkage.
10 MR. SIPOS: Power supplies are 11 specifically mentioned in the regulation, transformers 12 are not. We submit that based on the definition of 13 moving parts and change in properties that they may -
14 safety-related ones may fall within the scope for AMR 15 and AMP.
16 CHAIRMAN McDADE: Okay. How do you 17 address what Mr. Turk read; specifically, the 60 18 Federal Register 22.471, the Statement of 19 Consideration, which would imply that transformers are 20 not required to have an aging management plan? I 21 understand your reading of the regulation, and we sort 22 of kicked that around a little bit. I understand the 23 Declaration from Paul Blanche, but what do we do with 24 the Statement of Consideration in the Federal 25 Register?
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
211 1 MR. SIPOS: May I have one moment, Your 2 Honor? Thank you, Your Honors. As New York 3 understands the excerpt that Mr. Turk just read from, 4 it does not specifically preclude transformers from 5 falling within the scope. We have submitted a 6 Declaration from an electrical engineer, former 7 executive in the nuclear industry, who has put forth 8 the opinion that they do fall within, and has also 9 explained -- has set forth his view that there are no 10 moving parts, and no change in configuration of 11 properties. So we suggest that the Statement of 12 Considerations, as read by Mr. Turk, do not foreclose 13 the contention raised here with respect to 14 transformers that are safety-related.
15 CHAIRMAN McDADE: Okay. Mr. Turk, how 16 would you address that?
17 MR. ROTH: Before Mr. Turk answers, I 18 would just like to point out that 54.21, the lists in 19 it say, "excluding, but not limited to", meaning that 20 not every item that the staff interprets as being 21 excluded is shown in that list. That's why it says, 22 "excluding, but not limited to."
23 CHAIRMAN McDADE: Right. So we're now 24 going to the Statement of Consideration to inform us 25 as to what the Commission intended, to give us an idea NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
212 1 of those things, understanding that the list is 2 demonstrative, but not all-inclusive. So the 3 Statement of Consideration informs us as to what the 4 Commission was thinking in promulgating the 5 regulation.
6 Now, New York is saying that they think 7 it's still an open issue, and that given the 8 Declaration of their expert, that they have 9 sufficiently raised it. And the question is whether 10 or not the Statement of Consideration is specific 11 enough from the Commission to exclude it, in our 12 trying to give intent, or action to the intent of the 13 Commission in promulgating the regulation.
14 MR. TURK: May I have just a moment, Your 15 Honor?
16 CHAIRMAN McDADE: Please.
17 JUDGE WARDWELL: Is there something you 18 want to add while we're waiting?
19 MR. SIPOS: Your Honor, if I may just 20 briefly respond to what Mr. Roth said. There are two 21 such phrases in that regulation. There are two, "but 22 are not limited to", both for inclusion and exclusion, 23 focusing only on the latter, leaves out the former, 24 which would open the door for transformers.
25 MR. TURK: I'm learning about transformers NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
213 1 in part, Your Honor. My major was in Liberal Arts, 2 unfortunately, so I have to learn as I go. At page 3 22-477 of that same Federal Register Statement of 4 Consideration that I cited, there's a statement at the 5 bottom of the first column in describing passive 6 structures and components. The Commission states, as 7 follows:
8 "The Commission has concluded that a 9 change in configuration or property should be 10 interpreted to include a change in state, which is a 11 term sometimes found in the literature relating to 12 passive." And it goes on to talk about transistors.
13 It says, "For example, a transistor can change its 14 state, and, therefore, would not be screened in under 15 this description."
16 I'm informed that a transformer, 17 essentially, changes its state. The current goes in 18 at a certain voltage, and comes out at a different 19 voltage. As a result, that is considered to be an 20 active component. And, for that reason, it would not 21 be screened in as a passive component subject to aging 22 management review.
23 JUDGE WARDWELL: The transformer doesn't 24 change its state.
25 CHAIRMAN McDADE: It's the electricity.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
214 1 JUDGE WARDWELL: It's the electricity that 2 changes state. And isn't it here that it's the device 3 which we're considering, the component that we're 4 considering, and it's a change in state of that 5 component, not a change in state of some material 6 coming in and out of it, like water into and out of a 7 pump, because you change the state of water coming 8 into and out of a pump, moving it faster.
9 MR. TURK: The staff has evaluated the 10 process, and back in `97, as stated in the letter from 11 Mr. Grimes to NEI, which was cited by the applicant, 12 the staff determined that transformers are, in fact, 13 active, that there is a change in state, and that 14 makes them active.
15 JUDGE WARDWELL: But isn't it a valid 16 challenge to that to determine at a hearing whether or 17 not that interpretation carries the day or not?
18 Doesn't it raise a general dispute?
19 MR. TURK: It raises a challenge to the 20 staff's interpretation of the regulation.
21 CHAIRMAN McDADE: Okay. And you have 22 pointed us to the right place, so at our leisure, 23 without having you guys hang around, we can study 60 24 Federal Register 22-471 et seq.
25 JUDGE WARDWELL: And that's what I do when NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
215 1 I'm at leisure.
2 (Laughter.)
3 CHAIRMAN McDADE: Okay. Anything further 4 on Contention Eight, or can we move to Contention 5 Nine?
6 MR. BESSETTE: Your Honor, if I might, I 7 have one point, just to point out, with all due 8 respect to Mr. Blanche's Declaration, the entire 9 support for this transformer issue is one sentence 10 that simply states, "Transformers function without 11 moving parts, and without a change in configurations 12 or properties as defined in that regulation." That's 13 all it says. It doesn't cite any of the documents 14 we've talked about. It doesn't cite why that's any 15 different from any of the components we've talked 16 about today, including power supplies, relay switches, 17 invertors, batteries, which have, by regulation, are 18 excluded from aging management programs. No support, 19 no explanation, no differential, but no basis. So, 20 again, while they can point to a statement in 21 affidavit just saying I disagree, is not enough. And 22 that's all Mr. Blanche has done. Putting it in a 23 declaration is simply not enough to save the day here.
24 Thank you.
25 JUDGE WARDWELL: Thank you.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
216 1 MR. SIPOS: May I respond to that? If I 2 may just supplement our remarks, briefly. Staff's 3 position proves too much. Judge Wardwell, I think you 4 put your finger right on it. It's something --
5 CHAIRMAN McDADE: You're just pandering to 6 him, that's all --
7 (Laughter.)
8 MR. SIPOS: If a box or component changes 9 what flows through it, that doesn't necessarily take 10 that box or component out, changing water to steam 11 doesn't necessarily take whatever that widget is, and 12 that seems to be what staff is saying here. We 13 believe that proves too much, and that Mr. Grimes' 14 letter is only that, it's the letter of Mr. Grimes, 15 it's the letter of staff. We take issue with that.
16 MR. TURK: One brief statement, Your 17 Honor. It's not just the Grimes' letter, it's also 18 the staff's endorsement of the position stated in the 19 NEI document, the staff's safety review, is it the 20 SRP? I'm sorry, Regulatory Guide 1.188 endorses that 21 position, so it is an official staff regulatory 22 position.
23 CHAIRMAN McDADE: And New York's answer 24 would be the same today, as well.
25 MR. SIPOS: Yes. Your Honors, before we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
217 1 move on, I was wondering if there might be some 2 opportunity just to make a brief comment regarding 3 Contentions Six and Seven. I'm very mindful of the 4 time, but there were one or two points. And if I may, 5 with the Court's indulgence --
6 CHAIRMAN McDADE: please.
7 MR. SIPOS: Towards the end of the 8 presentations on Six and Seven, there was some 9 discussion of, I believe 1.23 and 1.25, and there was 10 reference made to the Non-Environmentally Qualified 11 Insulated Cables and Connections. And I think that 12 was brought up with respect to low-voltage. Two terms 13 are missing in that program, or reference that was 14 cited to. One is, inaccessible, and the other is low-15 voltage.
16 Moreover, again not belaboring the point, 17 but we would respectfully suggest that a reading of 18 GALL does not bear out the positions that were 19 presented by staff and Entergy, and that there is not 20 a specific detailed program in their, in that 21 document. And, also, if I could just refer the Court 22 to, I believe it's GALL X-E.3. Could we just get that 23 up on the screen here? And this is, again, 24 illustrative. And it just says, "In scope medium-25 voltage cables exposed to significant moisture and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
218 1 significant voltage are tested to provide an 2 indication of the condition of the conductor 3 insulation". Again, it doesn't provide the specifics 4 of the test.
5 And then it goes on and says: "The 6 specific type of test performed will be determined 7 prior to the initial test, and is to be a proven 8 test", et cetera, et cetera. Again, New York submits 9 there's no substance there, and that supports our 10 contention.
11 CHAIRMAN McDADE: And you're reading from 12 GALL X?
13 MR. SIPOS: I believe I'm reading from 14 GALL XI.E.3, Paragraph 3 entitled, "Parameters 15 monitored/inspected." Thank you.
16 CHAIRMAN McDADE: Okay. Contention Nine, 17 that the Environmental report fails to evaluate energy 18 conservation as an alternative that could displace the 19 energy production of one or both of the Indian Point 20 reactors; and, therefore, that the Environment report 21 is inadequate.
22 A question that I have up front, it talks 23 about, first of all, what is the goal of the proposed 24 action? And it seems like the parties have a 25 differing view as to what the goal of the proposed NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
219 1 action is.
2 On one side it is to allow for power 3 generation capacity after the term of the current 4 license expires, and the other option is to insure 5 adequate electric power generation after the license 6 expires. So, I mean, one, you could have adequate 7 generation if you have a smaller need for power. You 8 still have adequate generation, or the goal is, in 9 fact, to produce power generation capacity. So, first 10 of all, let me turn to the staff.
11 Why should the goal of the proposed action 12 be limited to power generation, as opposed to the goal 13 being to insure that there is adequate power 14 generation?
15 MR. CHANDLER: Your Honor, if I may take 16 just one moment. Your Honor, Christopher Chandler for 17 the staff. Our position is that the purpose and need 18 is defined within the Generic Environmental Impact 19 Statement. And to consider energy conservation as an 20 alternative would be -- energy conservation is 21 something that's beyond the ability of an energy-22 producing company, like Entergy, to implement, and so 23 it would not be a reasonable alternative.
24 JUDGE WARDWELL: But isn't the ability for 25 a company to implement other alternatives, basically, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
220 1 beyond their power? I mean, they don't have any 2 capabilities to produce power by coal, or other 3 mechanisms, do they?
4 MR. CHANDLER: Well, I think, Your Honor, 5 I think maybe the distinction would be that they could 6 -- they're an energy-generating company. They could 7 construct a coal plant. They can't require residents, 8 or provide tax breaks for residents to use less 9 energy, or require people to use more energy-efficient 10 appliances in their homes. That's the type of 11 distinction, I think, that is most informative.
12 CHAIRMAN McDADE: Okay. But the proposed 13 action here is the proposed action of the Nuclear 14 Regulatory Commission. The proposed action is to 15 grant or not to grant the license extension. And 16 focusing on it that way, at least for right now, if 17 there is no need for the electric power generated, 18 effectively, I think what the State is trying to say 19 is that that's part of the no-action alternative. If 20 the NRC says no, we're not going to re-license the 21 plant, what are the implications of that? And what 22 they're saying is that one of the things that should 23 be considered is that with conservation, there would 24 be little or no effect of that, when you're doing that 25 balancing; that we don't need the power. There are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
221 1 other ways of getting the power.
2 Now just as there are other ways of 3 getting the power by putting up a coal plant, of 4 putting up a wind farm of conservation, and say that, 5 at least, should have been considered. Now, what's 6 the fallacy in that argument?
7 MR. CHANDLER: Well, I guess to just 8 reiterate my position, Your Honor, is that the --
9 again, the fundamental distinction is that this isn't 10 something that they can do. And we don't want to 11 define the purpose too narrowly to say, for example, 12 the purpose of the project is to provide electricity 13 from Indian Point. That would be, I think, too narrow 14 a reading of the purpose and need concept. But we 15 don't want to define it too broadly to say that we 16 just need power, period, because that's just -- that's 17 too broad to include reasonable alternatives.
18 CHAIRMAN McDADE: Okay. To New York, have 19 I accurately summarized your argument? Do I 20 understand it the way you intended it?
21 MR. SIPOS: Yes, by and large. Yes.
22 CHAIRMAN McDADE: Okay. How do you deal 23 with the decision in Clinton, that was cited by the 24 NRC staff? Specifically, there they say that NEPA 25 does not require an analysis of conservation as an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
222 1 alternative. There it was an early site permit, but 2 why would the result be any different here?
3 MR. SIPOS: May I have one moment?
4 CHAIRMAN McDADE: I mean, it appears as if 5 in that case the Commission accepted the argument that 6 the goal here is the goal of the Nuclear Energy 7 Project, as opposed to the goal, as I understand 8 you're stating it. So how do we get around Clinton, 9 if we were to accept your position?
10 MR. SIPOS: Clinton was an early site 11 approval permit case, and I believe there was a 12 concern expressed that analyzing that issue at that 13 point was premature, because the plant would not come 14 on line under any scenario for many years, and that 15 analyzing need at that point was premature. This is 16 quite a different situation, and in Clinton, I believe 17 there was also reference that that inquiry, that 18 analysis would take place at some future time, that it 19 was not a categorical exclusion, but it was more of a 20 timing issue, and that need would most definitely be 21 analyzed under NEPA further down the road.
22 CHAIRMAN McDADE: Okay. But didn't the 23 Commission also say that energy efficiency "was not a 24 reasonable alternative that would advance the goals of 25 the project", in that particular instance? And isn't NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
223 1 that exactly what the staff is saying here?
2 MR. SIPOS: In the GEIS, there is 3 reference that it is an issue that is appropriate to 4 examine. So speaking -- well, we cited that in our 5 papers, but that is a basis that supports the 6 contention.
7 JUDGE WARDWELL: But doesn't the GEIS 8 limit those alternatives to single discrete electrical 9 generating sources, commercially available?
10 MR. SIPOS: That's slight -- I believe 11 that might go to a different Contention, but under the 12 No-Action Alternative, the answer is no, it is not.
13 JUDGE WARDWELL: So you're saying that 14 where this -- the only place that this energy 15 conservation falls in in this Contention is in the No-16 Action Alternative, not in other alternatives 17 comparing as options to the production of 2,000 18 megawatts of power.
19 MR. SIPOS: Yes.
20 JUDGE WARDWELL: It's only falling within 21 the No-Action --
22 MR. SIPOS: Under the No-Action 23 alternative. And it should be examined under the 24 rubric.
25 JUDGE WARDWELL: Did the Clinton decision NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
224 1 relate to anything associated with the No-Action 2 alternative, or did that decision relate to other 3 alternatives to the sources of power, do you know?
4 MR. SIPOS: I believe it is the latter.
5 One moment, Your Honor. Your Honor, I've been trying 6 to get to a second point in my mind, and I keep losing 7 it. There is a distinction here between Clinton --
8 JUDGE WARDWELL: The second point, or your 9 mind?
10 (Laughter.)
11 MR. SIPOS: There's a significant 12 distinction here between Clinton, and the situation 13 we're faced here. Clinton early site permit, very, 14 very early in the process. Here, the facility is 15 built, and the question is should it be continued, 16 should it be continued for the additional 20 years 17 should that option be available? And it is entirely 18 appropriate, in fact, to the extent Clinton was too 19 early, this case is clearly - if it was postponed, it 20 would be too late. This is the opportunity, this is, 21 perhaps, the opportunity to review that issue under 22 the No-Action Alternative here as we're looking at do 23 we go forward beyond the 40 years.
24 JUDGE WARDWELL: But it seems to me that 25 this is also a mechanism to address the need for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
225 1 power, and is that a viable option to be considered --
2 specifically, do the regulations allow for the 3 reassessment of the need for power in a license 4 renewal application proceeding?
5 MR. SIPOS: Correct. And if there's no --
6 7 JUDGE WARDWELL: That was a question. I 8 was asking you whether or not the regulations allow 9 for a review of the need for power as part of the 10 license renewal application proceedings.
11 MR. SIPOS: Under the NEPA regulations, it 12 may be examined as part of the No-Action Alternative.
13 What is the need? Is there conservation? What is the 14 effect of conservation? If I just may have one 15 moment?
16 Part of the answer to the question you 17 just posed, I believe, may have been anticipated in 18 Judge McDade's question. The ER here forms, is the 19 initial document that goes to the staff so that the 20 staff can conduct its review. That ER should be as 21 comprehensive, and as accurate as possible, and to not 22 evaluate these issues is a substantive failing of the 23 ER, so the answer is it may be reviewed. Indeed, New 24 York suggests it should be reviewed, it must be 25 reviewed in this proceeding. And I would refer to the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
226 1 Court to GEIS at Section 8.2, which contains greater 2 discussion of this. And, specific, there's a long 3 section there, but taking one sentence out by way of 4 example, or two sentences.
5 "In other cases, denial may lead to 6 conservation measures and/or decisions to import 7 power. In addition, denial may result in a 8 combination of these different outcomes. Therefore, 9 the environmental impacts of such resulting 10 alternatives would be included as the environmental 11 impacts of the No-Action Alternative."
12 CHAIRMAN McDADE: Anything further from 13 the staff on this?
14 MR. CHANDLER: Yes, Your Honor. Actually, 15 I would like to call your attention to the Clinton ESP 16 proceeding, and talk about that just a little bit 17 more. Actually, the Commission, and, subsequently, 18 the 7th Circuit upheld the view that energy 19 conservation is not reasonable alternative to th 20 electrical generation. And the opinion of the 7 21 Circuit, there are actually two discrete challenges.
22 One is that the Board in that case unreasonably 23 excluded the contention regarding energy conservation.
24 The second argument had to do with the need for power, 25 so they're actually two different points. And the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
227 1 Court in that case did say that the need for power 2 analysis was premature, and it could be done down the 3 line. But the Court also explicitly stated, "We are 4 persuaded by the Board's analysis with respect to 5 energy conservation." They said, "Because Exelon was 6 a private company engaged in generating energy for the 7 wholesale market, the Board's adoption of base-load 8 energy generation as the purpose behind the ESP was 9 not arbitrary, capricious, an abuse of discretion, or 10 otherwise not in accordance with law."
11 And they continued by stating, "The 12 adopted purpose was broad enough to permit 13 consideration of a host of energy-generating 14 alternatives. Moreover, it was reasonable for the 15 Board to conclude that NEPA did not require 16 consideration of energy efficiency alternatives when 17 Exelon was in no position to implement such 18 alternatives."
19 JUDGE WARDWELL: But isn't New York State 20 contending that it's not to be adjudged as an 21 alternative to their power generation, but needs to be 22 included in the No-Action Alternative? Isn't that 23 different than what was reached in this decision in 24 Clinton?
25 MR. CHANDLER: Well, I believe, Your NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
228 1 Honor, that they're saying it should be, but they 2 haven't provided any sort of substantive basis for 3 that. It's just kind of a general desire for that to 4 take place.
5 JUDGE WARDWELL: At least here today, they 6 mentioned some -- they quoted something right out of 7 the GEIS. It's pretty persuasive, isn't it?
8 MR. CHANDLER: One moment, please, Your 9 Honor.
10 JUDGE WARDWELL: While you're discussing 11 that, I'll go on to Entergy. Is the need for power a 12 -- do the regulations allow for review of the need for 13 power in a license renewal application proceeding?
14 MS. SUTTON: Under 10 CFR Section 15 51.53C(2), "An applicant need not include in its ER a 16 discussion of need for power for purposes of license 17 renewal."
18 JUDGE WARDWELL: Is that conclusive enough 19 to exclude the need to address energy conservation as 20 part of the No-Action Alternative, though?
21 MS. SUTTON: The No-Action Alternative is 22 a separate issue. Conservation falls under energy 23 alternatives, which is the analysis that we have been 24 discussing. "To insure the proposed action is to 25 preserve the option for future generation through the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
229 1 renewal of two units." In this case, we're talking 2 over 2,000 megawatts electric. When you look at the 3 GEIS, it says in that situation that "the reasonable 4 set of alternatives should be limited to an analysis 5 of single discrete energy generation sources." That's 6 what we have discussed. And in this case, that 7 reasonable set of alternatives has been addressed in 8 the ER, and conservation does not fall within the 9 scope of the reasonable set of alternatives in view of 10 the proposed action.
11 JUDGE WARDWELL: But New York State isn't 12 contending that it should be one of those reasonable 13 alternatives to compare against your proposed action, 14 but rather should be included in your discussion of 15 the No-Action Alternative.
16 MS. SUTTON: We would argue in this 17 Contention, that's exactly what they're saying, in 18 Contention Nine, as part of their pleadings.
19 JUDGE WARDWELL: But haven't they 20 clarified that both in the arguments today, and in 21 their replies to your's, that what they were 22 discussing was the No-Action Alternative?
23 MS. SUTTON: And that, too, is addressed 24 in our Environmental report, which is essentially the 25 status quo, no license renewal.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
230 1 JUDGE WARDWELL: And have you addressed 2 conservation within that discussion of the No-Action 3 Alternative, as suggested by DEIS and GEIS, as was 4 quoted today?
5 MR. BESSETTE: Your Honor, we just think, 6 issue you raised earlier, we believe the Clinton 7 decision is directly on point here. Whether New York 8 is trying to shoehorn it into the No-Energy 9 Alternative, I mean, the No-Action Alternative, or 10 energy alternatives, the Clinton decision is directly 11 on point. It considered alternatives to base load 12 generation for emergent planning. There could be 13 nothing more on point here.
14 JUDGE WARDWELL: But, to me, the No-Action 15 Alternative says what would happen if, in fact, this 16 plant was not re-licensed? That's the No-Action 17 Alternative here, is that correct?
18 MR. BESSETTE: Yes, it is, but that 19 doesn't mean that Entergy then has to consider energy 20 conservation. That's an action.
21 MS. SUTTON: You're looking at the 22 environmental impact from the --
23 JUDGE WARDWELL: But that's the impact of 24 not re-licensing. That's a potential impact of not 25 re-licensing this plant. Is that not reasonable to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
231 1 assume?
2 MR. BESSETTE: And who -- where does the 3 --
4 JUDGE WARDWELL: That would encourage 5 things like conservation?
6 MR. BESSETTE: We don't believe that's 7 required, Your Honor, in the No-Action Alternative to 8 consider potential downstream implications that are 9 under no control of Entergy. I mean --
10 MS. SUTTON: The No-Action Alternative 11 would result in the status quo in terms of 12 environmental impacts, in terms of current plant 13 operation. What the State is really asking here is 14 for speculation as to, if the license is not renewed, 15 how will that impact conservation? Conservation is 16 beyond the power of Entergy to influence one way or 17 the other, which is the point in these cases that 18 we've cited in our answer.
19 MR. CHANDLER: Judge Wardwell, I wanted to 20 go back to your question about what the discussion is 21 in the Generic Environmental Impact Statement. On 22 page 8.2, there is a brief discussion about 23 alternatives other than discrete power generation 24 sources; specifically, environmental conservation.
25 And the GEIS states that "Energy conservation and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
232 1 power imports are possible consequences of the No-2 Action Alternative. While these two alternatives are 3 not options that fulfill the stated purpose and need 4 of the proposed action, they're included in the GEIS 5 because they're important tools available to energy 6 planners and managing need." So it's included in the 7 GEIS, simply to provide background information, rather 8 than something that the applicant should actually be 9 considering.
10 JUDGE WARDWELL: And where is it included 11 in the GEIS, as part of the No-Action Alternative?
12 MR. CHANDLER: One second, please. Your 13 Honor, at Section 8.314, which is the Energy 14 Alternatives section of the GEIS.
15 JUDGE WARDWELL: And does the GEIS -- in 16 your SEIS, will you be evaluating the No-Action 17 Alternative, or are you exempt from the need to do 18 that as part of the GEIS?
19 MR. CHANDLER: We are required to do that 20 under NEPA, in the SEIS.
21 JUDGE WARDWELL: In the SEIS.
22 MR. CHANDLER: Yes, sir.
23 JUDGE WARDWELL: And in consideration of 24 the GEIS.
25 MR. CHANDLER: Yes.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
233 1 JUDGE WARDWELL: And, so, if you're 2 required to do that, don't you, by default, require 3 the applicant to provide the information you need to 4 assess the No-Action Alternative?
5 MR. CHANDLER: Your Honor, we would say 6 that the applicant would need to mention energy 7 conservation, and they do in their Environmental 8 report mention energy conservation as an alternative, 9 and they dismiss it as a reasonable alternative. And 10 we read that as fulfilling our requirement.
11 JUDGE WARDWELL: Let me re-ask my 12 question. That's a very nice answer. It wasn't the 13 question I intended to be answered. The question I 14 intended to be answered, do you require the applicant 15 to provide the information necessary for you to 16 evaluate the No-Action Alternative, as you say you 17 need to do as part of the SEIS?
18 MR. CHANDLER: Yes.
19 JUDGE WARDWELL: Thank you.
20 CHAIRMAN McDADE: I have nothing further 21 on that. I have nothing -- no specific questions on 22 Contentions Ten or Eleven. Contention Ten is that the 23 ER is inadequate because it treats all alternatives to 24 license renewal, except natural gas or coal plants, as 25 unreasonable, and provides no substantive analysis of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
234 1 the potential for other alternatives in the New York 2 energy market.
3 Contention Eleven is that DER fails to 4 fully consider the adverse environmental impact that 5 will be created by leaving Indian Point II and Indian 6 Point III as an energy option beyond 2013-2015, 7 basically saying that there'd be a decreased incentive 8 for other energy options to be pursued if Indian Point 9 II and III remain open. Those are the next two 10 Contentions. I don't have any specific questions on 11 either of those. Again, I think it was clear from the 12 papers, at least to me. Judge Wardwell, do you have 13 any --
14 JUDGE WARDWELL: I may have something. I 15 do have one question I'd like to pursue in Eleven.
16 And it's to Entergy, in regards to, I think it was on 17 page 85 of your answer. You made a statement that 18 "the issuing of the license", or at least this was in 19 my notes that I've got on it. I don't know if it's a 20 quote, but stating that "the issuance of a license 21 does not mandate or guarantee plant will operate over 22 the extended period. Therefore, no bearing on the 23 motivation to create or implement energy 24 conservatism."
25 I interpreted that statement to mean that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
235 1 the proposed action, which is the renewal, the 2 granting of the renewal license that staff has to 3 evaluate in their EIS won't necessarily end up 4 generating any power, because you don't have to -- by 5 the granting of this license doesn't require you to 6 continue operating.
7 MS. SUTTON: That's correct, Your Honor.
8 JUDGE WARDWELL: But doesn't NEPA require 9 an agency to look beyond just what that action does, 10 but the things that are likely to occur from that 11 action? So isn't that kind of a shallow argument or 12 statement, it has really no bearing?
13 MS. SUTTON: In terms of what's been done 14 in the ER, it has no bearing. The ER looks at all of 15 the environmental impacts as if the plant were to 16 operate for an additional 20 years.
17 JUDGE WARDWELL: So why -- what was the 18 context, or why was that statement made?
19 MS. SUTTON: It recognizes that in the 20 GEIS they do define the major federal action is to 21 preserve the option, and we recognize that.
22 JUDGE WARDWELL: Say that statement again.
23 MS. SUTTON: In the GEIS, the NRC defines 24 the scope of the GEIS to preserve the option of 25 renewing the plants. It doesn't per se say that they NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
236 1 will necessarily continue to operate.
2 JUDGE WARDWELL: You just wanted to 3 recognize that.
4 MS. SUTTON: Correct. It's just a 5 recognition of the use of that language.
6 JUDGE WARDWELL: But it really has not 7 much bearing, is it fair to say, in regards to 8 evaluating this Contention, because we still have to 9 look at --
10 MS. SUTTON: Yes, Your Honor. And our ER 11 does look at the environmental impacts over a proposed 12 term of renewal.
13 JUDGE WARDWELL: Thank you. I just wanted 14 to clarify that. That was the only thing I had.
15 CHAIRMAN McDADE: Okay. Before we proceed 16 further, just, as I said, I thought things were 17 relatively clear from the papers that were submitted.
18 Does New York have anything that you would like to 19 address on either of those two Contentions, Ten or 20 Eleven, before we move on, that you would like to 21 highlight for us, or just bring to our attention?
22 MR. SIPOS: Briefly, we believe that the 23 applicant must do more than as the staff suggests, 24 "mention the issue and discard it." And other than 25 that, we rest on the 14 pages of the Contentions and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
237 1 the supporting Declarations. Thank you.
2 CHAIRMAN McDADE: Okay. Does the staff 3 have anything further on those?
4 MR. CHANDLER: No, we do not, Your Honor.
5 CHAIRMAN McDADE: Entergy?
6 MS. SUTTON: Our answer is full, as well.
7 CHAIRMAN McDADE: Okay. Next, we get into 8 Contention Twelve. Contention Twelve is that 9 Entergy's Severe Accident Mitigation Alternatives for 10 Indian Point II and Indian Point III do not accurately 11 reflect decontamination or clean-up costs associated 12 with a severe accident in the New York Metropolitan 13 area. And, therefore, Entergy's SAMA, again, Severe 14 Accident Mitigation Alternatives, under-estimate the 15 cost of a severe accident.
16 Let me initially pose a question to the 17 staff. What triggers the obligation to do a SAMA?
18 When do they have to do one?
19 MS. MIZUNO: Your Honor, Beth Mizuno for 20 the staff. Our regulations provide that a SAMA 21 analysis has to be done if one already hasn't been 22 done. That being the case, here one has not already 23 been done. SAMA analysis is required for purposes of 24 license renewal.
25 JUDGE WARDWELL: And what issues are --
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
238 1 are the universe of severe accidents addressed or 2 that haven't been addressed before, or are they 3 limited -- is it like the NEPA analysis, that you 4 don't have to have the universe of alternatives for a 5 given proposal, proposed action. Is the same true 6 with a SAMA analysis, that the universe of severe 7 accidents don't have to be addressed? And if not, 8 then how do you select the ones that are addressed?
9 MS. MIZUNO: Your Honor, in answer to your 10 question, what the SAMA analysis does, the purpose of 11 the SAMA analysis is to identify cost-beneficial add-12 ons to activity. Sorry, cost-beneficial actions, 13 proposals, processes that could enhance the safety of 14 the plant. And, so, in order to do that, a number of 15 -- the cost of a severe accident is calculated, and 16 then compared to that cost, there are a series of 17 potential fixes or add-ons that are compared to that.
18 If a cost-benefit analysis shows that, ultimately, the 19 thing costs maybe half of the benefit that it would 20 gain, then that would be something that we would think 21 would be appropriate in the course of license renewal 22 to request, to require that the applicant do.
23 CHAIRMAN McDADE: Okay. From the 24 standpoint of Entergy, if I could --
25 JUDGE WARDWELL: Could I just -- I want to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
239 1 just --
2 CHAIRMAN McDADE: Okay.
3 JUDGE WARDWELL: I'm still a little 4 confused. But what's the number of severe accidents 5 that you evaluate this way in this process?
6 MS. MIZUNO: I'm not sure if this is going 7 to be responsive to your question, Your Honor, but 8 there are basically two kinds of accidents that are 9 looked at in the SAMA analysis, internally-generated 10 events, accidents resulting from internally-generated 11 events, and accidents generated by external events.
12 I'm not sure if that is what you're asking.
13 JUDGE WARDWELL: Do the regulations 14 require an applicant to evaluate all severe accidents 15 in their SAMA analysis, or can they -- is there a 16 reasonableness standard with this?
17 MS. MIZUNO: I'm sorry, Your Honor, just 18 a moment.
19 JUDGE WARDWELL: No, no problem.
20 MS. MIZUNO: Your Honor, the -- let's 21 start this way. The regulations do not require that 22 specific -- I'm sorry. The regulations don't require 23 that specific events be analyzed, as such. What we do 24 is, in part of the SAMA analysis, is to look at the 25 probabilistic risks of various events occurring, and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
240 1 using those to generate scenarios for severe 2 accidents. Is that helpful?
3 JUDGE WARDWELL: Yes, I think so. Are the 4 results from these SAMA analysis that are reviewed by 5 the staff -- strike that.
6 How does the staff look at the results of 7 the SAMA analysis, and incorporate it into their NEPA 8 evaluation?
9 MS. MIZUNO: Sorry, Your Honor. The staff 10 evaluates the SAMA information by looking at potential 11 risk factors, looking at and evaluating what potential 12 activities can be taken to mitigate those risks, and 13 comparing those, applying a cost-benefit analysis to 14 what is generated on the side of risk, and on the side 15 of cost, versus the benefit, and the mitigation that 16 can be achieved.
17 JUDGE WARDWELL: So you use it mostly just 18 to help and insure that you've considered these in 19 your decisions and evaluation of the NEPA analysis in 20 your EIS.
21 MS. MIZUNO: Well, to back up just a 22 second. The GEIS does talk about SAMAs. A Generic 23 Environmental Impact Statement talks about the SAMA 24 analysis, and it is very instructive. And what it 25 does say is that the severe accident -- risks of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
241 1 severe accidents are discussed in a number of 2 different ongoing activities. And in, for instance, 3 the individual -- sorry, the IPEEE, which, I'm sorry, 4 I can't --
5 JUDGE WARDWELL: Individual Plan and --
6 MS. MIZUNO: The acronym is IPEEE, which 7 is Individual Plant Examination for External Events.
8 And what the GEIS says is that in looking at potential 9 SAMAs, we've already done a fairly decent analysis in 10 the course of doing the individual plant examination.
11 And it does say that based on that, we think we've 12 gotten a pretty good handle on severe accident 13 mitigation. The SAMA analysis is just an opportunity 14 in license renewal to make sure that we've identified 15 any cost-beneficial mitigation activities that can be 16 pursued.
17 JUDGE WARDWELL: And you said earlier that 18 SAMAs are only conducted for those that haven't 19 previously been conducted.
20 MS. MIZUNO: Yes, because if they're 21 already been done, they're already done. This is --
22 right. And counsel has given me the regulatory 23 reference. It's 10 CFR 51.53, and it's --
24 JUDGE LATHROP: C3.IIL?
25 MS. MIZUNO: Thank you.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
242 1 JUDGE LATHROP: Okay.
2 MS. MIZUNO: And it reads, "If the staff 3 has not previously considered severe accident 4 mitigation alternatives for the applicant's plant in 5 an environmental impact statement or related 6 supplement, or an environmental assessment, then a 7 consideration of alternatives to mitigate severe 8 accidents must be provided." And that's what the reg 9 requires, and that's what we will do, Your Honor.
10 JUDGE WARDWELL: Thank you.
11 CHAIRMAN McDADE: Okay. It's rapidly 12 approaching 5:00, so it's getting to be time to break.
13 One of the things I wanted to address before we do 14 break, we, perhaps optimistically in our scheduling 15 anticipated getting through all of the Contentions for 16 New York today. We're now on Contention Twelve out of 17 Thirty-Two, and we're not going to get through the 18 rest in the next five minutes, so it is going to be 19 necessary to have New York come back tomorrow. Then 20 that raises the question with the other people who are 21 scheduled for tomorrow, the Town of Cortlandt, the 22 State of Connecticut, and Riverkeeper.
23 And let me specifically Riverkeeper.
24 We've got a representative of Riverkeeper here. If 25 you could come forward. If you could just identify NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
243 1 yourself for the record.
2 MS. CURRAN: Diane Curran.
3 CHAIRMAN McDADE: Okay. And?
4 MR. TAFUR: Victor Tafur.
5 MR. MUSEGAAS: And I'm Philip Musegaas.
6 CHAIRMAN McDADE: Okay. Thank you. Let 7 me ask, I mean, the question is how many people are 8 going to be here for Riverkeeper tomorrow? I don't 9 want to require the people from Riverkeeper to be here 10 at 9:00 tomorrow morning, as indicated in our previous 11 order, because, obviously, we're not going to get to 12 you. The question then is, do we ask you to come at 13 1:00? And, again, depending on the speed with which 14 we move through New York, we may not be ready for you 15 at 1:00, or do we just put you off until Wednesday?
16 And what I wanted to do is to just get your thoughts 17 on it. What we will try to do as go as far as we 18 could tomorrow, and get to you, if at all possible.
19 But my question is just administratively for you and 20 the people who are going to be with you, whether or 21 not you would like to just -- we'll schedule you for 22 tomorrow afternoon, as soon as we get to you, or 23 whether or not you'd rather be put over until 24 Wednesday morning? If you want to take a few minutes 25 and address this, we'll be here for a while after the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
244 1 hearing. Again, I just don't want you to have a bunch 2 of people just sitting around who have other things to 3 do, and wasting their time. So do you want to -- if 4 we break the hearing right now and just, we will be 5 back here. Just notify us of what you want to do.
6 MS. CURRAN: Okay. Thank you.
7 MR. MUSEGAAS: We'll take five minutes and 8 confer.
9 CHAIRMAN McDADE: Okay. Ms. Curran, thank 10 you.
11 MS. MATTHEWS: Judge, another housekeeping 12 matter, while they're conferring. The power on this 13 side of the room doesn't work, so I wonder if you 14 could take that up with whomever you can, and tomorrow 15 maybe we can have some power for our computers. A 16 little ironic.
17 CHAIRMAN McDADE: Okay.
18 (Laughter.)
19 CHAIRMAN McDADE: Okay. Anything further 20 that we should take up today?
21 MR. BESSETTE: Yes, Your Honor. Paul 22 Bessette. We're wondering for a housekeeping matter, 23 hauled over many boxes through security this morning.
24 Is there any options for leaving certain materials 25 here? We don't know the rules of the courthouse.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
245 1 CHAIRMAN McDADE: The answer is neither do 2 I. When we break, let's find out. My guesstimate is 3 that they are probably going to want all of this out 4 of here, but as soon as we break, we will find out 5 from security here and get an answer for you.
6 Okay. The answer, basically, is if you 7 don't take them out, somebody else will, and you won't 8 see them again.
9 MR. BESSETTE: I guess that's an answer.
10 CHAIRMAN McDADE: Okay. Anything further 11 for tonight?
12 MR. TURK: If we have to transport our 13 documents out, and then go through security with them 14 again, I don't think there will be time between when 15 the front door of the courthouse opens until you 16 commence for us to be able to set up.
17 CHAIRMAN McDADE: How long -- if we start 18 at 9 tomorrow?
19 MR. TURK: They told us that they open at 20 8:30. Now, I don't know if they open sooner.
21 CHAIRMAN McDADE: Okay. If you could hear 22 that, the main doors downstairs for security will open 23 at 8, to get you through security. The door to this 24 particular courtroom to get you to set up will be at 25 8:30. We will schedule to start at 9, and recognize NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
246 1 that there are problems getting through security, or 2 setting set up when we get here. We may have to 3 adjust that, but let's shoot for 9:00, and get started 4 as soon after that as we can.
5 JUDGE WARDWELL: I would encourage you all 6 to be here at 8 to get through security, so that you 7 can get in here at 8:30, so we can start at 9.
8 CHAIRMAN McDADE: Anything from New York?
9 MR. SIPOS: Not at this time, Your Honor.
10 However, if the power system doesn't work out, we'll 11 just go to Home Depot and bring some extension cords 12 tomorrow.
13 CHAIRMAN McDADE: Okay. The other thing 14 -- and, again, I mean, one of the things with 15 Riverkeeper about seeing us, I mean, to avoid -- even 16 though we're only talking about administrative things, 17 we want a representative from the NRC staff and the 18 applicant present, so it's going to take them a while 19 to pack up, so they'll be here for a while. So when 20 you are ready, if you could just get one of them with 21 you and then come on back. Thank you.
22 (Whereupon, the proceedings went off the 23 record at 5:05 p.m.)
24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433