ML080740257
| ML080740257 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 03/11/2008 |
| 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-14 | |
| Download: ML080740257 (283) | |
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: Tuesday, March 11, 2008 Work Order No.: NRC-2070 Pages 247-528 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433
247 1 UNITED STATES OF AMERICA 2 + + + + + DOCKETED 03/14/08 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 14 Richard A. Daronco Courthouse 15 Courtroom 200 16 111 Dr. Martin Luther King Boulevard 17 White Plains, New York 18 Tuesday, March 11, 2008 19 20 The above-entitled conference was 21 convened, pursuant to notice, at 9:00 a.m.
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.
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248 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.
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249 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 13 On Behalf of the Intervenors:
14 The State of New York:
15 JOHN J. SIPOS, ESQ.
16 Assistant Attorney General 17 MYLAN LEE DENERSTEIN, ESQ.
18 Executive Deputy Attorney General, 19 Social Justice 20 The Capitol 21 Albany, New York 12224-0341 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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250 1 On Behalf of the Intervenors:
2 The State of New York:
3 JANICE A. DEAN, ESQ.
4 Assistant Attorney General 5 Office of the Attorney General of the 6 State of New York 7 120 Broadway, 26th Floor 8 New York, New York 10271 9
10 JOAN LEARY MATTHEWS, ESQ.
11 Senior Counsel for Special Projects 12 Office of General Counsel 13 New York State Department of Environmental 14 Conservation 15 625 Broadway 16 Albany, New York 12224 17 (518) 402-9190 18 FAX 402-9018 19 jlmatthe@gw.dec.state.ny.us 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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251 1 JOHN L. PARKER, ESQ.
2 Regional Attorney 3 New York State Department of Environmental 4 Conservation 5 Region 3 Headquarters 6 21 South Putt Corners Road 7 New Paltz, New York 12561-1620 8 (845) 256-3037 9 FAX 255-3042 10 jlparker@gw.dec.state.ny.us 11 12 The Town of Cortlandt:
13 DANIEL RIESEL, ESQ.
14 JESSICA STEINBERG, ESQ.
15 of: Sive, Paget & Riesel, P.C.
16 Counselors at Law 17 460 Park Avenue 18 New York, New York 10022 19 (212) 421-2150 20 FAX 906-9032 21 driesel@sprlaw.com 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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252 1 The State of Connecticut:
2 ROBERT SNOOK, ESQ.
3 Assistant Attorney General 4 55 Elm Street 5 Post Office Box 120 6 Hartford, Connecticut 06141-0120 7 (860) 808-5020 8 FAX 808-5347 9 Robert.snook@po.state.ct.us 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.
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253 1 T-A-B-L-E O-F C-O-N-T-E-N-T-S 2 State of New York . . . . . . . . . . . . . . . 254 3 Opening Statement by the Town of 4 Cortlandt, CT . . . . . . . . . . . . . . 495 5 Opening Statment of the State of Connecticut . 509 6
7 8
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254 1 P-R-O-C-E-E-D-I-N-G-S 2 9:00 a.m.
3 CHAIRMAN McDADE: On the record. We are 4 continuing in the license renewal application matter 5 submitted by Entergy for Indian Points 2 and 3. We 6 continue to have the State of New York as an 7 Intervenor. We're going to be continuing with 8 questions this morning with regard to the State of New 9 York.
10 Before we get into the questions about the 11 specific intentions, we are getting to a group of 12 contentions involving SAMAs and what I would like to 13 do is let me pose a question to Entergy here. In the 14 context of a license renewal application, how do we 15 determine what SAMAs are necessary? And again, we're 16 talking about Severe Accident Mitigation Alternatives.
17 Which ones do you have -- How do you determine which 18 of those you need to address in the course of your 19 license renewal application to sort of set the context 20 of the next several contentions?
21 MR. O'NEILL: My understanding is the 22 scope of SAMAs considered is based largely on the 23 IPEEE, the Individual Plan Examination of External 24 Events that the Applicant prepared during the early 25 `90s and it was updated in 2005 and it focuses NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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255 1 principally on external hazards such as fires, seismic 2 events, flooding, tornadoes, things of that sort. And 3 in preparing a SAMA analysis, I believe, Entergy 4 really built largely off its prior IPEEEs as well as 5 analyses that were performed by other applicants and 6 I think that's consistent with guidance, the 7 regulatory guidance, NEI 0501 Revision A which has 8 been approved by the NRC and I believe Reg. Guide 4.2 9 specifically directs applicants to look to prior 10 analyses. It says, "Preparing SAMA analyses, 11 applicants may be guided by analyses performed for 12 previous applications for renewal of operating 13 licenses."
14 CHAIRMAN McDADE: What are you reading 15 from?
16 MR. O'NEILL: This is actually from our 17 pleading, but this was a quote from a Supplement 1 to 18 Regulatory Guide 4.2.
19 CHAIRMAN McDADE: Okay. But we start 20 basically, there was a reactor safety study that NRC 21 commissioned, done by MIT, to make a determination as 22 to what were the potential severe accidents that based 23 on that there were then according to 24 51.53(c)(3)(ii)(L) "if the severe accident mitigation 25 alternative has already been considered then it need NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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256 1 not be considered at this point in time."
2 So starting with that, where do we look to 3 get a list of what SAMAs would be necessary in the 4 context of the Indian Point relicensing application?
5 MR. O'NEILL: Just give me a moment here 6 to confer.
7 (Off the record discussion.)
8 MR. O'NEILL: Again, we do it with the 9 prior analyses, but also you look at your internal 10 PRAs.
11 CHAIRMAN McDADE: Okay, and also let me 12 remind you because you've been away from the 13 microphone, Mr. O'Neill.
14 MR. O'NEILL: Yes.
15 CHAIRMAN McDADE: So if you could speak up 16 to make sure that everybody can hear you.
17 MR. O'NEILL: My understanding is you 18 reviewed your internal PRAs and just see if there are 19 any additional reasonable measurements that you can 20 take beyond what you considered in your initial PRA 21 and it's a very technical determination.
22 JUDGE WARDWELL: If it is a technical 23 determination, then, in fact, a challenge that says, 24 gee, you haven't looked at enough severe accidents in 25 your mitigation alternatives. It would be an issue NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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257 1 worth litigating in this situation, wouldn't it?
2 MR. O'NEILL: Not in this particular case.
3 Are we talking generally about all SAMAs contention 4 work or not?
5 JUDGE WARDWELL: Just in a general sense, 6 wouldn't a challenge to a completeness of the severe 7 accidents that are being mitigated and what goes into 8 the analysis for a severe accident in regards to 9 evaluating mitigation alternatives, it would seem to 10 be a very ripe area for contentions in general that 11 would be within the scope of licensee renewal 12 proceeding.
13 MR. O'NEILL: I think our view is that the 14 burden here is on the Petitioner to come forward to 15 potentially identifying some other SAMAs and 16 explaining why our analysis isn't sufficient, isn't 17 reasonable. I mean, it is governed after all by 18 NEPA's rule of reason. You perform alternatives 19 analysis and I don't think it's enough just to say you 20 need to consider X, Y or Z without explaining why it 21 would materially effect the outcome of our SAMA 22 analysis.
23 JUDGE WARDWELL: What's the basis for the 24 rule of reasoning application of NEPA towards the 25 SAMAs? Where does that -- Could you reference me to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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258 1 what the reference for that is?
2 MR. O'NEILL: Ultimately, it's SAMA 3 analysis is a NEPA-driven requirement and it really 4 flows largely from the 3rd Circuit's decision in the 5 Limerick case. In that particular proceeding, the NRC 6 considered excluding consideration of SAMAs, severe 7 accident mitigation design alternative, at the initial 8 licensing stage and they considered doing it through 9 a policy statement and the Court held that the Agency 10 couldn't do that. They could do it for a rulemaking 11 and, as a result, the Agency decided through a 12 licensing phase to include consideration of SAMAs.
13 And I think that also reflected the fact that at the 14 time they promulgated the SAMA requirement of Part 51 15 all licensees hadn't completed their IPEs and IPEEEs.
16 JUDGE WARDWELL: So just to complete this 17 now.
18 MR. O'NEILL: Yes.
19 MR. WINES: Where does -- Because it falls 20 under 51, are you saying by definition that the rule 21 of reasoning applies to that?
22 MR. O'NEILL: Yes, I mean it falls within 23 the scope of NEPA. Part 51 are the Agency's NEPA 24 implementing regulations and I want to point you to a 25 very good reference. It's the Statement of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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259 1 Considerations for Part 51, June 5, 1996, 61 Federal 2 Register 28.481 provides a lot of useful background 3 about the nature and scope of the SAMA analysis and 4 how it relates to the IPEs and IPEEEs that licensee 5 had conducted.
6 CHAIRMAN McDADE: Now with regard to your 7 license renewal application, are SAMAs restricted to 8 those severe accidents that could be the result of 9 aging issues or is it broader than that?
10 MR. O'NEILL: It is broader than that and 11 recognize in our pleadings we cited some Commission 12 case law as well as some prior staff EISs state that 13 if a particular cost in official SAMA doesn't relate 14 to aging management it's not required to be 15 implemented and that is, in fact, the case. SAMA 16 analysis is a form of NEPA alternatives analysis and, 17 as you know, NEPA is purely procedural statute. It 18 prescribes a mandatory process but it doesn't dictate 19 any particular results.
20 So we just wanted to emphasize that point 21 that even if you identify particular cost beneficial 22 SAMAs it's not necessarily incumbent upon the licensee 23 to implement those SAMAs. They may -- Yes, that are 24 not aging management related. But the analysis is 25 done fairly broadly.
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260 1 JUDGE LATHROP: So to start your 2 application, you made a list of all of the severe 3 accidents that you were going to analyze for 4 mitigation alternatives and then you did that and put 5 that in the application. I'm trying to get at the 6 process.
7 MR. O'NEILL: Yes.
8 JUDGE LATHROP: And then the staff, I turn 9 to the staff, did the staff have to agree that that 10 list was sufficient?
11 MR. O'NEILL: Yes. We start with a 12 probabilistic risk assessment. But the staff will 13 also have to do a review of the ER to determine that 14 the scope of the SAMA analysis is reasonable.
15 JUDGE LATHROP: And there's a particular 16 probabilistic risk analysis for Indian Point's 2 and 17 3?
18 MR. O'NEILL: Yes, for both plants and 19 they cover internal events as well as external events.
20 My recollection is that they were updated as of 21 December 2005. I believe that's in the application 22 and that's another point I'd emphasize that the 23 applicant can only prepare a SAMA analysis based on 24 the information that's available to it at the time it 25 prepares its application.
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261 1 JUDGE WARDWELL: You really do the SAMAs.
2 Right?
3 MR. O'NEILL: Pardon me?
4 JUDGE WARDWELL: I'm a little confused on 5 your terminology and maybe I'm just thinking of what's 6 in Part 51 in regards to the description of the SAMAs 7 in that. But I believe in Part 51 it says that the 8 staff shall analyze or something to the effect like 9 that the SAMAs that you prepare is the way I interpret 10 it.
11 MR. O'NEILL: Yes, that's correct.
12 JUDGE WARDWELL: And so they're really 13 doing the evaluation of your SAMAs. Is that correct?
14 MR. O'NEILL: That's correct.
15 JUDGE WARDWELL: Sorry. I just wanted to 16 clarify that point. Go ahead.
17 MR. O'NEILL: So again, just back to what 18 we were talking about before, I know it really builds 19 largely off the prior analyses and as far as the 20 specific SAMAs that we consider within our ER, that 21 really is a technical determination that's made by the 22 PRA folks.
23 JUDGE WARDWELL: And is there a list in 24 your ER of those SAMAs that you performed and that you 25 consider to be sufficient for IP 2 and 3 as part of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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262 1 this license renewal application?
2 MR. O'NEILL: Yes, I believe there's a 3 complete listing of the SAMAs as well as the SAMAs 4 that were screened out and ultimately the six or seven 5 SAMA candidates list, yes, and that's in the 6 environmental report.
7 JUDGE WARDWELL: And why are you screening 8 out SAMAs? Why do certain ones -- Why is there a 9 screening on your part of the SAMAs? I don't 10 understand that.
11 MR. O'NEILL: I think it's part of the 12 cost/benefit analysis. At some point, it's going to 13 be immediately evident that certain SAMAs are going to 14 require such a large expenditure that the benefits of 15 the SAMA are not going to outweigh the costs.
16 JUDGE WARDWELL: So you terminate your 17 analysis more than screen it out. You go so far and 18 you --
19 MR. O'NEILL: Yes.
20 JUDGE WARDWELL: This is obvious though.
21 This is in a group that's so obvious it doesn't 22 warrant further calculations.
23 MR. O'NEILL: It's a win and win process.
24 You can still see it all in the application and if you 25 want a specific citation, we can get that for you.
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263 1 CHAIRMAN McDADE: I think or at least I 2 hope that sets the stage of the SAMAs that we're going 3 to be talking about for the next little bit.
4 New York Contention No. 12 involves a 5 SAMA, specifically that the SAMA for Indian Point 2 6 and 3 does not accurately reflect decontamination and 7 clean-up costs associated with severe accident in the 8 New York Metropolitan area and therefore does not 9 satisfy 51.53(c)(3)(ii)(L). Judge Lathrop.
10 JUDGE LATHROP: There are two points made 11 in this contention, one about the particle size that 12 is used in the MACCS Code. The argument is as I 13 understand it that the particle size that was used was 14 large. The clean-up costs are more expensive for 15 small particles and that small particle size should 16 have been used. Is that your understanding of the 17 contention?
18 MR. O'NEILL: Yes, that's consistent with 19 my understanding.
20 JUDGE LATHROP: That's one part. And the 21 other part is about the cost used in the evaluation.
22 MR. O'NEILL: That's correct.
23 JUDGE LATHROP: How do you respond about 24 the challenge for the particle size?
25 MR. O'NEILL: I would begin by saying that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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264 1 we just don't see the relevance of the particular 2 study they've cited before I even get to the issue of 3 particle size.
4 CHAIRMAN McDADE: You're talking about the 5 Sandia report.
6 MR. O'NEILL: Yes, the Sandia report.
7 Sorry.
8 CHAIRMAN McDADE: The Sandia. I'm sorry.
9 MR. O'NEILL: It was the report of 1996 10 study which is evident from its title it pertains to 11 nuclear weapons of plutonium dispersal. My 12 understanding is that the report was prepared to a 13 large extent to address the Government's 14 responsibilities under CIRCA (phonetic) or Superfund 15 and unique socio-economic costs that might flow from 16 accidents involving releases of plutonium from 17 weapons. I think it mentions commercial reactors in 18 passing, but there's really no attempt by the State to 19 connect the dots to our SAMA analysis as far as we're 20 concerned.
21 Now as far as the issue of --
22 CHAIRMAN McDADE: Let me just ask by way 23 of a preliminary question there. One of the defenses 24 to this contention as I understand it is that it is 25 impermissible challenge to the MACCS2 Code. Now why NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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265 1 can't they challenge the MACCS2 Code.
2 Forget for the moment whether or not it is 3 an adequate, whether or not it's viable. But just why 4 can't they challenge it? The Code isn't a regulation.
5 If the Code is defective, wouldn't that be a basis 6 for further litigation?
7 MR. O'NEILL: Again, they need a 8 sufficient basis to explain why the Code is defective 9 and we really don't think the State does that here.
10 They're just simply saying that you should use this 11 other study as a surrogate for the MACCS Code.
12 CHAIRMAN McDADE: So you're saying then 13 that it is permissible for them to challenge the Code.
14 It's just they haven't done it adequately based on 15 what they've submitted.
16 MR. O'NEILL: I think it might be possible 17 to entertain a particularized challenge to specific 18 input parameters in the Code or how the Applicant uses 19 the Code. But I will emphasize this is a very time 20 past, time worn Code that's been used in numerous SAMA 21 analyses and it's been used by the Agency in various 22 context, too, and you just don't think a general 23 challenge as the adequacy really gives rise to 24 litigable issue.
25 I mean I think the concern is what is the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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266 1 relief. How do we address it? Do they do the 2 analysis using an entirely different Code? And I 3 think it flies smack in the face of a lot of the prior 4 SAMA analyses that have been thoroughly reviewed the 5 Agency.
6 JUDGE LATHROP: But isn't the assumption 7 of particle size an input to the Code?
8 MR. O'NEILL: My understanding again, this 9 is getting into a very technical issue that maybe that 10 I don't do daily as a lawyer. But I believe it's 11 based on the 4 rem criteria and the habitability 12 criteria. It's not based specifically on particle 13 size.
14 JUDGE WARDWELL: By definition, isn't that 15 an issue then that should be litigated? I mean, I 16 would argue or someone could argue that New York State 17 isn't saying the Sandia report is a surrogate to the 18 MACCS Code but merely a demonstration why the MACCS 19 Code is not appropriate at this particular site and 20 isn't that sufficient enough to say, "Hey, we don't 21 have an accurate SAMA here and it needs to be 22 reevaluated"?
23 MR. O'NEILL: Our position here is 24 assuming for the sake of argument that that is a 25 legitimate approach that they haven't met the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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267 1 threshold. It's a really fast and generic terms.
2 JUDGE WARDWELL: How far do you think they 3 should go?
4 MR. O'NEILL: I mean, this argument could 5 apply to any plant, any site. It's couched in generic 6 terms.
7 JUDGE WARDWELL: Do you think they should 8 have to redo the SAMA in order to demonstrate that 9 there's a difference in order to have it a viable 10 contention? Is that your position?
11 MR. O'NEILL: No, it's not our position 12 that they need to redo the SAMA analysis. I mean, 13 it's the expenditure of substantial resources and a 14 team of probabilistic or PRA experts which the State 15 incidently didn't offer here.
16 Again, we just view it as a generic 17 challenge. They didn't tackle the specific input 18 parameters. One thing I'd emphasize is that the 19 Agency has recommended that applicants follow the NEI 20 05.01 Rev. A guidance and that's in License Renewal 21 Interim Staff Guidance 2006-03 and the staff 22 specifically says that "following a guidance 23 facilitates preparation of complete SAMA submittals."
24 And if you look at NEI 05.01, just give me 25 a moment here, it has a section that deals with NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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268 1 economic data and that encompasses the cost of 2 decontaminating land and buildings and actually in one 3 of the attachments to the Guidance, Table 5, it gives 4 you sample MACCS2 economic parameters and I'm 5 referring, of course, to the Code. And if you go to 6 the application, Attachment E to the Environmental 7 Report, pages E.1-88 to E.1-89 there's a table that 8 contains the actual MACCS2 parameters that Entergy 9 used that entered in the Code to do this analysis and 10 there is no challenge from the State to the adequacy 11 of any of those individual parameters.
12 JUDGE WARDWELL: Where does the size of 13 the particle come into the analysis that you 14 performed? Is it an input parameter or does it not --
15 is it insensitive to the particle size?
16 MR. O'NEILL: Give me a moment.
17 (Off the record discussion.)
18 MR. O'NEILL: My understanding is that 19 particle size per se is not an actual input parameter 20 in the Code. I mean, it's probably --
21 JUDGE WARDWELL: So this Code is 22 insensitive --
23 MR. O'NEILL: It's an implicit assumption 24 in the Code.
25 JUDGE WARDWELL: So this Code is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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269 1 insensitive to the particle size. It doesn't --
2 Regardless of what the particle size is you're going 3 to have the same analysis results using this Code.
4 MR. O'NEILL: That's my understanding.
5 JUDGE WARDWELL: Okay.
6 MR. O'NEILL: You're not going to tweak 7 the inputs to reflect different particle sizes.
8 JUDGE LATHROP: There's a question about 9 what is meant by inputs. Do inputs include the data 10 that used to run a specific calculation plus the 11 assumption built into the analysis?
12 MR. O'NEILL: Could you repeat the 13 question? I apologize.
14 JUDGE LATHROP: Things that are built into 15 the Code and the argument is that the clean-up costs 16 for small particles is much more expensive than for 17 large particles and the Sandia report is cited to say 18 that the weapons-based particle sizes are large; 19 whereas in reactor accidents the particle size 20 released in the severe accident are likely to be 21 small. So if the small particles are released in a 22 reactor accident, the clean-up costs will be more 23 expensive and so the Code is inaccurate in that sense.
24 That's the general argument.
25 MR. O'NEILL: Again, it's a generic NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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270 1 challenge to that to the Code and I would again cite 2 the Board's decision in Pilgrim and I recognize that 3 this Board is not bound by that decision. But we 4 certainly view it as persuasive authority.
5 CHAIRMAN McDADE: But you say it's a 6 generic challenge. Why isn't that a specific 7 challenge? It seems to me that certainly from the 8 standpoint of New York it's not generic. So can you 9 just explain what you mean by that in this context?
10 MR. O'NEILL: It's a challenge to the use 11 of the Code at any particular power point and the same 12 challenge would apply anywhere and the thing is the 13 Board at Pilgrim emphasize that the use of the MACCS2 14 Code has been explicitly recognized by the NRC. It's 15 endorsed in NRC approved NEI guidance and it promotes 16 uniformity in the performance of staff review. These 17 are things that the Code report emphasizes. It's been 18 widely used and accepted as an appropriate tool and a 19 general challenge as to the adequacy of the Code 20 really doesn't constitute what are the real issues.
21 JUDGE WARDWELL: Do you think that the 22 allegation of the impacts of the smaller particle size 23 would be as relevant at, say, Vermont Yankee, say, 24 Maine Yankee, if it was still operational as it would 25 here at Indian Point?
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271 1 MR. O'NEILL: Yes, I believe so.
2 JUDGE WARDWELL: New York State, would you 3 think that your allegation in regards to the small 4 particle size would have as much influence on Maine 5 Yankee's, at the Maine Yankee site, if they were going 6 through a license renewal as your allegation is that 7 the small particle size would influence the costs here 8 at Indian Point?
9 MR. SIPOS: Judge Wardwell, I'm generally 10 familiar where Maine Yankee was located.
11 JUDGE WARDWELL: Let's pick a 12 hypothetical. I tried to find one in my mind.
13 MR. SIPOS: And I'm ready to --
14 JUDGE WARDWELL: Thinking the name was 15 Maine was Maine.
16 MR. SIPOS: I could answer.
17 JUDGE WARDWELL: If you're talking about 18 a site that's in a remote area, would the impacts of 19 the small particle size be as significant as they here 20 at Indian Point where you have a large population and 21 a large area that would require more exotic 22 decommissioning efforts?
23 MR. SIPOS: I think there could be a 24 difference between the two scenarios that you propose.
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272 1 for cleaning up vacant land or farmland. There is 2 farmland near Rockland, Maine. There is farmland here 3 in Westchester. But there are significant differences 4 between the New York-New Jersey-Connecticut 5 metropolitan area in that same area in Maine. There 6 are more structures and there is a greater probability 7 of the small particle sizes binding to residents, 8 businesses, just as a result of this area is more 9 developed than those counties in --
10 JUDGE WARDWELL: And then if you say the 11 impacts in a rural location for a plant may very well 12 be similar to what they are here at Indian Point, then 13 isn't it a generic attack on the approach that Entergy 14 is using?
15 MR. SIPOS: It is -- I'm sorry. It is 16 not. It is not intended to be a generic attack. It 17 is intended to be specifically tailored to this 18 situation. Based on the reports that we cited, given 19 the development in this area and the extensive 20 development and how difficult it would be to 21 decontaminate buildings in White Plains or in 22 Tarrytown or in the town of Buchanan or coming down 23 the river towards Yonkers, New Rochelle, Manhattan.
24 It's an entirely different situation.
25 JUDGE WARDWELL: Thank you.
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273 1 CHAIRMAN McDADE: To make sure I 2 understand it, it's the position of your state that, 3 first of all, this Code is not a regulation.
4 Therefore, it's subject to attack. We have to look at 5 it. We have to make a decision as to its 6 applicability, its viability, under the circumstances 7 here.
8 Secondly, whatever the case law is in 9 Vermont Yankee or elsewhere, it may be instructive to 10 us, but it's not binding on us. So we need to make 11 our own decision and in any event we have to look at 12 the different factual circumstances that exist here in 13 Westchester, say, than exists near Vermont Yankee and 14 given those circumstances you think the contention is 15 viable. It's a different contention than the 16 Commonwealth of Massachusetts submitted in Vermont 17 Yankee.
18 MR. SIPOS: Yes, I believe the answer is 19 yes to all of those questions. We believe that the --
20 I believe the reference was to Pilgrim in the Pilgrim 21 decision.
22 CHAIRMAN McDADE: I'm sorry.
23 MR. SIPOS: Which Entergy references is 24 the Pilgrim decision from, I believe, October 31, 2007 25 which is at the summary deposition stage and I think NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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274 1 what Entergy did not tell you this morning is that 2 that contention was admitted at the contention 3 admissibility stage. Moreover, we believe as we have 4 set up the contention here -- We believe that this 5 contention which is different from a SAMA-type 6 contention that was at issue in Pilgrim it has merit.
7 It is focusing on the specific calculations and 8 inputs, Judge Lathrop, as you said and assumption that 9 are in the analysis and in the Code.
10 And just because it has been done this way 11 previously, for example, at other locations does not 12 necessarily mean that the staff and the Board and the 13 Commission should not take a different look, a 14 different view, of it.
15 And I would just note that to Entergy 16 comment that the Sandia report doesn't really carry 17 the day, the Sandia report is a very detailed report 18 sponsored by the Department of Energy, I believe, and 19 among other things there are numerous statements in 20 the Sandia report that we set to concerning the issue 21 of particle size. But the Sandia report also says, 22 "Date on recovery from nuclear explosions that have 23 been publicly available since the 1960s appear to have 24 been misinterpreted which has led to long-standing 25 underestimates of the potential economic costs of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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275 1 severe reactor accidents. We've provided the 2 citations. That's at Sandia page 2-10. There are 3 many other statements in Sandia which I'd be happy to 4 discuss if the Board had any questions about them.
5 JUDGE LATHROP: I do have a question about 6 it, particularly about the particle size. In your 7 reply to this contention, you state, "There is 8 fortunately a dire of practical experience with 9 widespread radioactive contamination from a reactor 10 severe accident with which to examine radioactive 11 dispersion." So what is the evidence that the 12 particle size is actually different?
13 MR. SIPOS: Your Honor, in the appendices 14 to the Sandia report there are a number of case 15 studies from various Defense Department accidents over 16 the years regarding various military installations or 17 accidents involving the Armed Forces. And there is a 18 very detailed analysis of each of those and there is 19 also, I believe, some references back to tests that 20 had been done in the Southwest in the `50s and in the 21 `60s.
22 JUDGE LATHROP: But those are all from 23 military devices or the military applications. How do 24 they apply to reactor particle size?
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276 1 discussion, specific nexus, to that in the Sandia 2 report and, if I may, I will try to locate it. One of 3 the pages that touches on that is I believe is page 2-4 3 and 2-4. I believe there are other pages as well 5 that also discuss that and I don't wish to delay the 6 proceeding, but perhaps I could hand that up at a 7 break or at lunchtime.
8 JUDGE LATHROP: Yes. In your reply, you 9 state there is little experience with this. So how do 10 we know what the particle size is?
11 MR. SIPOS: There is -- I know it is 12 discussed in the Sandia report. I'm sorry. I don't 13 have the page right at my fingertips now.
14 JUDGE LATHROP: It's understandable. So 15 if you could look that up, I would appreciate it.
16 Let me return to Entergy. The second part 17 of this contention argues that the costs of real 18 estate in the New York area are not current in the 19 MACCS Code and that's surely an input into the Code.
20 So how do you respond to that?
21 MR. O'NEILL: My response is that the 22 specific economic parameters that were entered into 23 the Code are listed in Attachment E to the 24 Environmental Report. They're there. New York State's 25 petition as well as its reply contained those specific NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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277 1 references to those parameters. There is no direct 2 challenge to the parameters and it's incumbent upon 3 the State to make particularized challenges to the 4 application, to cite the application with specificity 5 and explain why the parameters we use are inadequate.
6 And you're correct. If you look at the 7 list of parameters in the NEI guidance that are 8 generally reflected in the application, there's 9 property depreciation data, investment rate of return, 10 daily costs for a person who has been evacuated. We 11 get into cost of farm decontamination, cost of non-12 farm decontamination. These are all very specific 13 inputs, none of which the State has even mentioned and 14 they've also failed to establish any nexus between the 15 assumptions that are used in the Sandia report and the 16 assumptions that are used in the MACCS2 Code. There 17 appear to be apples to oranges.
18 JUDGE LATHROP: And how does New York 19 respond to that?
20 MR. SIPOS: The MACCS2 Code we understand 21 was developed by David Chanin out at Sandia. David 22 Chanin is also one of the authors of the Sandia report 23 that we studied. Clearly, Sandia has experience in 24 this and there are specific situations, very unique 25 situations, here at Indian Point in the area that the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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278 1 Sandia report clearly supports that the typical or 2 what has happened in the past in terms of calculations 3 just do not come to grips with the clean-up costs that 4 will be associated with an accident here.
5 MR. O'NEILL: Our response to that is that 6 they have not specifically challenged any of the input 7 parameters in the application and there's not a single 8 reference to application and this is not supported by 9 any expert opinion. It's just a generalized attack on 10 the MACCS2 Code.
11 JUDGE WARDWELL: Do you have any other 12 information in regards back to the particle size that, 13 in fact, there won't be -- that a reactor accident 14 would only have larger sized particles size?
15 MR. O'NEILL: I don't specifically, but 16 again my understanding, Judge Wardwell, is that the 17 MACCS2 Code is not based specifically on particle size 18 locations. I think it accounts for the cost 19 associated with decontaminating pieces of property to 20 certain levels.
21 JUDGE WARDWELL: But you have to define 22 the size of the area for decontamination in order to 23 come up with a cost associated with the SAMA. Isn't 24 that correct?
25 MR. O'NEILL: The size of the particles.
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279 1 JUDGE WARDWELL: I'm sorry. You need to 2 define the size of the decommissioning area in order 3 to come up with the SAMA. Is that correct?
4 MR. O'NEILL: Yes, and that's certainly --
5 That's different than particle size.
6 JUDGE WARDWELL: Let's take it a piece at 7 a time because I'm this hard-scribble 8 little hick. So I need to go slowly here. You have 9 to define the size of the area. Correct?
10 MR. O'NEILL: Yes.
11 JUDGE WARDWELL: Would not the size of the 12 area be affected by the size of the particles that are 13 being released during an accident? Isn't that logical 14 to assume? Forget any codes or anything else. Just 15 pure logic.
16 (Off the record discussion.)
17 MR. O'NEILL: Having conferred with my 18 technical consultants, what we don't see is --
19 JUDGE WARDWELL: It really helps -- I know 20 styles. I hate to dictate styles to people. We're in 21 a courtroom that doesn't have microphones.
22 MR. O'NEILL: Yes, I know that.
23 JUDGE WARDWELL: And as I -- And I do 24 this, too. So as soon as we do this, let's try to 25 remember not to do it because it really influences the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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280 1 volume of your answer.
2 MR. O'NEILL: We don't think that particle 3 size is directly linked to the surface area. Maybe 4 I'm not understanding your question.
5 JUDGE WARDWELL: I don't care if it's 6 necessarily the size of the surface area or the amount 7 of particles or the amount of internal surface area or 8 whatever else it is. But it seems to me that it's 9 logical that the magnitude of decontamination might 10 very well be influenced by the size of the particles 11 that emanate from it in some fashion.
12 MR. O'NEILL: But the size of the 13 particles would effect the dispersion.
14 JUDGE WARDWELL: I don't even need you to 15 get that specific. Keep it more general than that.
16 You have smaller particles. It seems to me that the 17 decommissioning -- It's logical to assume that the 18 decommissioning costs might be influenced by that.
19 MR. O'NEILL: Yes, to the extent you're 20 saying it could effect the difficulty of 21 decontaminating.
22 JUDGE WARDWELL: There's that. I think 23 there will be more areas, more internal parts that 24 might get influenced by that be contaminated with 25 smaller particles and I'm not so sure the particles NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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281 1 wouldn't go further that you would have a larger area.
2 But maybe that's wrong in my logic.
3 But to me, isn't that something that's 4 handled during the hearing? We're not trying to 5 resolve that now. All we're trying to resolve is is 6 there sufficient bases to say, "Hey, maybe this SAMA 7 isn't done correctly in regards to trying to come up 8 with a good estimate for this particular site" and 9 that's what New York State is contending and I'm 10 trying to probe why what they have isn't enough to 11 say, "Yes, maybe it is something that needs further 12 addressing."
13 Maybe you've done a perfectly adequate 14 one. We'd have to get into that at a hearing in 15 regards to the technical merits which we've been 16 scratching the surface at for the last 20 minutes 17 probably. But I think it's worthwhile to do that 18 here. But it seems to me isn't there enough logic 19 there that says there's a potential for that to be 20 taking place here.
21 MR. O'NEILL: Again, as a very generic 22 matter, I would have to go back to what I said before.
23 There's no specific challenges to that parameters that 24 we use that are present in the application and this 25 particular argument could apply to any plant and in an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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282 1 urban area.
2 JUDGE WARDWELL: And how do you respond to 3 that? Now you've -- That's the first time I heard you 4 qualify it in an urban area. Is it only in an urban 5 area?
6 MR. O'NEILL: No, you would apply it to 7 any plant. But we recognize also that certainly 8 population has to be taken into account which I 9 believe it is in the MACCS2 input point.
10 JUDGE WARDWELL: But then again, as soon 11 as we start looking at the details of the input 12 parameters, shouldn't we let it in as a contention and 13 explore that and to the degree that it's applicable to 14 urban versus rural areas as part of the hearing?
15 MR. O'NEILL: This is the first time we're 16 discussing input parameters and that's simply because 17 we're pointing out the fact that the State didn't do 18 so in its petition or in its reply contrary to 2.309, 19 I believe it's (f)(1)(v).
20 JUDGE WARDWELL: Do you believe your 21 challenge is generic for all urban areas, New York 22 State?
23 MR. SIPOS: No. We are here in this 24 proceeding for this facility. That's what we're 25 trying to bring to the Board for the Board's review NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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283 1 and the Commission's review.
2 This is a unique area. Of all the 104 3 reactors in the country, these two have the highest 4 population density around them. There's no dispute 5 about that and the practical purpose of this 6 contention is that whether we call it an input or an 7 assumption the Sandia report supports the contention, 8 supports the argument that that assumption or that 9 input for this situation here at Indian Point is not 10 appropriate and that the clean-up costs, the 11 decontamination costs, for this New 12 York/Connecticut/New Jersey metro area are going to be 13 higher.
14 JUDGE LATHROP: But isn't it true that the 15 clean-up costs for small particles are generically 16 more expensive than for large particles?
17 MR. SIPOS: Yes, I believe that is an 18 accurate statement. It is -- You can imagine how 19 difficult it would be to clean up small particles on 20 the upper west side.
21 JUDGE LATHROP: That's a separate 22 argument. The terrain here is more complex, is it 23 not? That's a separate question.
24 MR. SIPOS: Did you say that terrain, 25 Judge?
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284 1 JUDGE LATHROP: The terrain, the building 2 structures, the population density.
3 MR. SIPOS: Yes.
4 JUDGE LATHROP: That's peculiar to this 5 area.
6 MR. SIPOS: Yes. That is correct.
7 JUDGE LATHROP: I meant peculiar in the 8 unique sense.
9 MR. SIPOS: Understood.
10 (Laughter.)
11 JUDGE LATHROP: Now let's return to the 12 cost. You say the costs are listed in your analyses, 13 clearly spelled out. Are those up-to-date and 14 discounted properly and so on?
15 MR. O'NEILL: My understanding is that 16 they are up-to-date as of the time the application was 17 prepared. I'm certain that we used certain parameters 18 that are built into the MACCS2 Code and made 19 adjustments as necessary. That brings me to --
20 (Off the record comment.)
21 MR. O'NEILL: I'm sorry. I was just going 22 to emphasize the point that again it's not clear to us 23 what the nexus of the Sandia report is to our specific 24 SAMA analysis.
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285 1 really address the relative cost and benefits. I 2 think the Commission has emphasized the case law that 3 any number of SAMAs are theoretically possible to 4 identify and Petitioner has to provide some initiative 5 of the relative cost and benefit. Why is this 6 material to the outcome of our SAMA analysis?
7 JUDGE WARDWELL: Turning to New York State 8 on that issue, are you contesting any of the unit 9 costs that are used in regards to calculating out the 10 total decommissioning costs in your contention?
11 MR. SIPOS: Decontamination costs, Your 12 Honor?
13 JUDGE WARDWELL: Yes. I'm sorry. What 14 did I say? Decommissioning? I might have. I meant 15 decontamination. Sorry.
16 MR. SIPOS: I believe that to the extent 17 we are citing the Sandia report which says that the 18 costs have been underestimated given this issue of 19 particle size that, yes, that assumption is a 20 litigable assumption for this facility given the area 21 that is around it. That's the sort of injury if you 22 will that New York is experiencing as a result of the 23 flawed, what we believe is the flawed SAMA approach 24 here.
25 JUDGE WARDWELL: In the Sandia report and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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286 1 your reading of the Sandia report, did you believe 2 that they are talking about the unit cost or just the 3 total decontamination cost or are they talking about 4 both?
5 MR. SIPOS: I believe it was on a square 6 kilometer basis in the chapter on costs and I would 7 just -- I would refer the Board to paragraph 16 of our 8 petition for an extended decontamination remediation 9 operation in a mixed use urban area with an average 10 national population density site restoration, that's 11 the Sandia report, predicted in a clean-up cost of 12 $311 million per square kilometer with an onsite waste 13 disposal cost of $402 million per square kilometer 14 with offsite disposal. And again we cite that Sandia 15 report 6-4.
16 JUDGE WARDWELL: Thank you.
17 MR. SIPOS: And then we continued on and 18 we did note that the cost would be much higher here 19 for further reasons and given the time value of money 20 1996 dollars, bringing those forward.
21 JUDGE LATHROP: And how does New York --
22 That's a specific enough challenge to the cost used in 23 the Code based on the particle size.
24 MR. O'NEILL: Again, Your Honor, we're 25 talking about plutonium dispersal accidents. I just NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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287 1 do not see the nexus in this particular action.
2 JUDGE LATHROP: The connection is that the 3 plutonium dispersal accidents that were analyzed and 4 are used, this is the allegation, resulted in large 5 particle size; whereas, if there were a severe 6 accident at a reactor the particle size would be 7 smaller. Therefore, the decontamination costs would 8 be larger and here's a specific statement in a 9 reference saying that they would be larger. So why 10 isn't that an input to the Code to calculate?
11 MR. O'NEILL: The inputs to the Code are 12 what they are. I mean, like I said, the MACCS2 13 parameters are not based specifically on particle 14 size.
15 JUDGE LATHROP: Somewhere in that Code 16 there must be an assumption about how much it costs to 17 clean up a square kilometer and that's based on 18 particle size according to the allegations of New 19 York. So that's a nexus, is it not?
20 MR. O'NEILL: If there's a nexus, it's a 21 very tiny weighted one in our view. Again, this is 22 based simply on a plutonium dispersal scenario.
23 CHAIRMAN McDADE: What's your reaction to 24 the statement by New York that specifically at page 25 210 of the Sandia report it discusses reactor NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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288 1 accidents. It isn't exclusively plutonium and weapons 2 accidents. It also indicates specifically that the 3 cost would be underestimated with regard to reactor 4 accidents at 210 of the Sandia report.
5 MR. O'NEILL: Could you give me a moment, 6 Your Honor, just to look at it?
7 (Pause.)
8 MS. MIZUNO: If I may, Your Honor.
9 CHAIRMAN McDADE: Yes, we were just 10 talking about that whether you had any comments on 11 this.
12 MS. MIZUNO: Thank you. Good morning, 13 Your Honor. This is Beth Mizuno for the NRC staff.
14 With respect to the question you just asked about the 15 reference in the Sandia report at page 210 regarding 16 severe reactor accidents and the economic costs of 17 such, as the NRC pointed out in its written filing, 18 it's our view that this is simply an aside. It's not 19 the focus of this report. This is not a judicial 20 document. So you wouldn't call it dicta. But it's an 21 aside because the focus of the Sandia report is on 22 accidents with respect to nuclear weapons, not 23 accidents at commercial nuclear power plants and the 24 relevance of that was the basis of the staff's 25 objection.
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289 1 JUDGE WARDWELL: What information do you 2 have that says what the particle size is from nuclear 3 reactor accidents?
4 MS. MIZUNO: Just a moment, Your Honor.
5 Thank you.
6 (Off the record discussion.)
7 MR. O'NEILL: Your Honor, can I speak for 8 a moment?
9 CHAIRMAN McDADE: Yes.
10 MR. O'NEILL: It was just interesting 11 conferring with my consultants she happened to use the 12 same term that the discussion that State references 13 was "an aside." It really is not the central focus of 14 the report and to the extent it discusses commercial 15 reactors, it's talking about studies as Wash 14 that 16 were done decades ago and there's just no indication 17 in that report that the assumptions used in those 18 earlier studies from the `60s are the same as those 19 that are built into the MACCS2 Code. There's no clear 20 link between the Sandia report and the assumptions 21 that it discussed and those that are used in the 22 MACCS2 Code.
23 CHAIRMAN McDADE: But assume that we 24 accept that and view it as well that this is an aside.
25 It's certainly not the focus of the Sandia report.
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290 1 But nevertheless it is there that as New York pointed 2 out the author of the Sandia report, one of the 3 authors, is also integral in the creation of the 4 MACCS2 Code and again not dispositive, but as I 5 understand what New York is saying is that it raises 6 a question as to the adequacy of the MACCS2 Code in 7 this particular context and it raises it to a level 8 that warrants further inquiry. In other words, they 9 have raised a genuine issue as to the adequacy of the 10 MACCS2 Code, not that demonstrated that it is 11 inadequate at this point in the proceeding.
12 They're saying they don't need to do that 13 at this point in the proceeding. All they have to do 14 is raise an issue and even though it is not the focus 15 of the Sandia report that it is sufficient in there 16 particularly given who the author is and the 17 relationship of that author to the MACCS2 Code that we 18 now have an issue that needs to be explored during the 19 course of the hearing.
20 What's the fallacy of that argument?
21 MR. O'NEILL: With all due respect and not 22 quite the common authorship established, the Sandia I 23 believe was prepared over ten years ago and that the 24 MACCS2 Code has been in wide use and specifically for 25 the preparation of SAMA analyses and again we do not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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291 1 view this as a specific challenge to this particular 2 action, this relicensing action. This could be raised 3 in any context and call into question the adequacy of 4 all prior SAMA analyses done using the MACCS2 Code.
5 CHAIRMAN McDADE: Okay.
6 (Off the record discussion.)
7 CHAIRMAN McDADE: From the NRC staff, do 8 you wish to --
9 MS. MIZUNO: Yes. Thank you, Your Honor.
10 CHAIRMAN McDADE: Yes.
11 MS. MIZUNO: We'd like to point out 12 granted the Sandia report was authored by Chanin and 13 granted Chanin was one of the authors that had 14 responsibility and input to the MACCS2 Code. But the 15 MACCS2 Code was a study that was -- The MACCS2 Code 16 was generated based on the study by a broad set of 17 experts. Plutonium study, Chanin study, I think it's 18 Chanin and Dr. Walter B. Murfin and these are two 19 individuals. The MACCS2 Code was developed by a broad 20 set of experts and it was developed particularly for 21 nuclear power plant, commercial power plant, reactor 22 accidents and the Sandia report was not.
23 Also just another matter to keep in mind 24 because this came up during the course of the back and 25 forth, the panel, I'm not sure which one, asked about NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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292 1 the clean-up costs (1) and (2) also about the size of 2 the particles and with respect to the clean-up costs, 3 some of the questions were asked, "Doesn't the size of 4 the particles determine how they travel and how much 5 area is contaminated" and the NRC staff would just 6 like to point out (1) the contention that was raised 7 by New York went to particle size, that cleaning up 8 smaller particles is more expensive than larger 9 particles for one thing. That was their contention.
10 To the extent that the contention is now 11 meta-morphisizing and becoming a different kind of 12 contention, the NRC staff would remind the panel that 13 Petitioners or Intervenors are responsible for 14 crafting their contentions and sticking to them. And 15 rather than them being changed in the course of the 16 hearing potentially by input from other sources, it's 17 the Petitioner's contention and it's the contention 18 that they filed and they wrote and it's their 19 responsibility and it's bounded by that.
20 CHAIRMAN McDADE: But isn't that still 21 within the scope? I mean, their contention was not so 22 narrow as to say it's increased clean-up costs per 23 square kilometer. It's increase clean-up costs and 24 that would include both the costs per kilometer and 25 also the number of kilometers that were contaminated, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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293 1 wouldn't it? Isn't that still within the scope of the 2 contention as drafted?
3 MS. MIZUNO: We would read that, the 4 staff. I actually, Your Honor, would read that rather 5 narrowly. I would read that more narrowly.
6 CHAIRMAN McDADE: Okay. We've been 7 kicking this one around a long time. I think we 8 understand the positions of the parties and we just 9 have to make a decision based on that. I don't know 10 that the positions are going to become any clearer if 11 we continue to ask questions. We're just going to be 12 probably getting ourselves more confused rather than 13 clarified.
14 So it might be worthwhile to move onto the 15 next contention which is New York Contention 13 saying 16 that the SAMA analysis is deficient because it does 17 not include the increased risk of fire barrier failure 18 and the loss of both cable trains of important safety 19 equipment in evaluating a severe accident and I guess 20 the first question is why to New York is the fire 21 barrier failure not within the current operating 22 basis. Why is this something that needs to be done as 23 part of the license renewal application? Any 24 exemption was granted from the standard one hour to 20 25 to 30 minutes. Why is that not outside the scope of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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294 1 this proceeding?
2 MR. SIPOS: We're not seeking to 3 relitigate or challenge that decision from last 4 September and last October here. We're taking the 5 plant as we find it today and looking forward to the 6 license renewal period.
7 We understand that we can't ask this Board 8 to reconsider the staff's determination from September 9 or October 2007. But going forward as part of the 10 SAMA analysis given that a part of the plant has fire 11 protection of only 24 minutes and another area has 12 protection only for 30 minutes, we believe that as 13 part of the SAMA analysis that that area should be 14 looked at and what mitigation steps could be taken to 15 reduce the consequences of that action and this area 16 where the waiver was granted, our understanding is 17 that it is not an area that was reviewed as part of 18 the SAMA analysis.
19 CHAIRMAN McDADE: Part of what the 20 Applicant and the staff are saying here is that you 21 have not presented anything that would indicate that 22 the SAMA analysis would be different whether or not 23 this exemption had been granted or not. How do you 24 respond to that?
25 MR. SIPOS: First, it hasn't been done.
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295 1 So I think it's -- Unless staff and Entergy have done 2 it and we don't know that. I don't believe that is 3 the case.
4 CHAIRMAN McDADE: But they're saying that 5 before it's done, there has to be at least some reason 6 to believe, some reason to suspect, that you would get 7 a different result and they said that you haven't put 8 forward that sort of threshold evidence to give a 9 reason to believe it would be different. Therefore, 10 the analysis doesn't have to be done.
11 MR. SIPOS: These power lines that are the 12 focus of New York's Contention 13 go to critical 13 safety components and I believe if they are 14 compromised, if those components are compromised in 24 15 minutes, that could have great consequences.
16 Staff has said that the purpose of SAMA is 17 to look at economically defensible mitigation. It is 18 hard to imagine a type of mitigation that could be an 19 easier fix. There is a problem with the fire 20 barriers. It's been documented by the NRC's Office of 21 Inspector General as sort of a general matter.
22 We know it's an issue with respect to 23 these power trains and they are related to critical 24 safety features of the plant. Upgrading them from 24 25 and 30 minutes to what is required or upgrading them NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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296 1 from 24 to 30 minutes or longer would seem that that 2 would be a very economical fix with a significant 3 benefit.
4 CHAIRMAN McDADE: But at the same time, 5 doesn't that effectively say then that the exemption 6 that was granted by the staff that that should be 7 effectively redone by Entergy, in other words, saying 8 that the staff has said in this circumstance 24 to 30 9 minutes is adequate. But that nevertheless even 10 though the staff has said that, you're not challenging 11 the appropriateness, is the staff doing that, that 12 Entergy should nevertheless make a determination as to 13 what the costs would be to make it an hour instead of 14 the 20 minutes and then based on those costs to 15 increase it to an hour.
16 MR. SIPOS: As part of the SAMA analysis 17 for the license renewal, the answer is yes, Your 18 Honor.
19 JUDGE WARDWELL: Okay. And do you agree 20 that the SAMA analysis as an entity doesn't require 21 then to do anything necessarily? It's just part of 22 the decision making process.
23 MR. SIPOS: It's costs --
24 JUDGE WARDWELL: So you're not testifying 25 then or you're not stating --
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297 1 MR. SIPOS: Arguing.
2 JUDGE WARDWELL: Arguing that, I get back 3 to being just -- We won't go into that. You're not 4 arguing that they should implement anything that's 5 associated with this contention. You're just saying 6 there isn't a SAMA associated with a fire protection 7 at the levels that now are allowed at Indian Point 2 8 and 3?
9 MR. SIPOS: Yes, Judge. Right now there's 10 an empty set. We're suggesting it should be costed 11 out and an analysis of alternatives made.
12 CHAIRMAN McDADE: And to Entergy, assume 13 for the sake of argument that you did a SAMA analysis, 14 made a determination that it would cost $1.08 in order 15 to upgrade this to an hour. All they're saying is 16 that you should cost it out as part of the SAMA to do 17 an alternative.
18 JUDGE LATHROP: Let me ask a question 19 first. Did you do a probabilistic risk assessment of 20 the loss of both electrical systems?
21 (Off the record discussion.)
22 MR. O'NEILL: Yes, I'm told -- My expert 23 said it was part of the IPEEE assessment.
24 JUDGE LATHROP: And how did it rank in the 25 order of risks that you decided to do SAMA analysis NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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298 1 for? I mean, you stated earlier that you do it based 2 on the PRAs for the various accidents that you decide 3 which ones to do SAMA analysis for. So how did the 4 analysis for this one rank among those that you chose?
5 MR. O'NEILL: Please give me a minute, 6 Your Honor.
7 (Off the record discussion.)
8 CHAIRMAN McDADE: If you could just hold 9 on for a second and the reason I do that is having sat 10 on that side of the table for a while, I know it's 11 very difficult. Mr. O'Neill is trying to talk with 12 his expert and get some information. At the same time 13 if the staff is making a statement, he probably wants 14 to hear that as well and although he has two ears, it 15 may be difficult for him to process both at the same 16 period of time. So I think it puts him in a difficult 17 position responding without hearing it.
18 I realize it does waste a little bit of 19 time. But I think in fairness to all the litigants 20 it's good to allow them not to be trying to do too 21 many things at once. Let's hear from Mr. O'Neill 22 first and then from the staff.
23 MR. O'NEILL: We don't want to take 24 anything away from anybody's discussions. My expert 25 here -- I'm sorry. I apologize. I'm putting my hand NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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299 1 up to my face again.
2 The analysis that we did would have looked 3 at impacts much more severe than the impacts that 4 might result from a difference between 30 minutes and 5 one hour. In other words, it was a very conservative 6 bounding assessment. I'm not sure that's directly 7 responsive to your question. In the nutshell, it was 8 very bounding conservative analysis that would 9 encompass the difference between the 30 minutes and 10 one hour.
11 JUDGE LATHROP: Bounding. What I asked 12 was had you bounded it by doing the actual risk 13 assessment.
14 CHAIRMAN McDADE: The initial answer was 15 yes and then the question is where did it rank and 16 then I'm not sure I understood the answer.
17 MR. O'NEILL: And I'm not sure --
18 MS. SUTTON: Could you please, Your Honor, 19 rephrase the question?
20 MR. O'NEILL: Could you repeat the 21 question?
22 JUDGE LATHROP: There is a possibility 23 that both of these cable trains will fail at the same 24 time. That's a probability and the consequence of 25 that all applied times the probability is the risk.
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300 1 Did you do that assessment for this particular 2 accident and then the second part was did it rank low 3 enough that you didn't feel you had to do a SAMA 4 analysis for it.
5 MR. O'NEILL: Yes to both questions, Your 6 Honor.
7 MS. MIZUNO: Beth Mizuno for the NRC 8 staff. Thank you, Your Honor. It's our understanding 9 to answer your question that the -- Let me put it the 10 way that we see it and that might be helpful to you.
11 It's our understanding that the contention is that the 12 Applicant did not address the increased risk 13 associated with the change with respect to the fire 14 barriers and that increased risk was the loss of both 15 redundant electrical cable trains.
16 It's our understanding that based on the 17 Applicant's submission and also their pleadings that 18 the reason why it's not addressed in the SAMA analysis 19 per se is because the fire barriers are assumed to 20 fail, that the cable trains are assumed to fail. When 21 they talk about conservativism and bounding analyses, 22 I believe that's what they're trying to get at.
23 They're just using different language.
24 But it's our understanding that these are 25 not credited as having any positive effect. They're NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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301 1 assumed to fail and the increased risk is completely 2 included within the SAMA analysis because the risk of 3 failure is 100 percent pursuant to the analysis they 4 did. That is the staff's understanding, Your Honor.
5 And also we would like to -- I would again 6 like to point out that the Petitioner's contention as 7 written regards increased risk, not about 8 alternatives. They simply say in their contention if 9 you read it which I'm sure you all have that their 10 focus is on increased risk. It's not on benefit.
11 It's not on alternatives. It's the failure to address 12 increased risk and it's our understanding that it is 13 completely addressed. That's all, Your Honor.
14 JUDGE LATHROP: So you're saying that they 15 did an analysis. In your opinion, they did an 16 analysis assuming both of these cable trains failed in 17 a SAMA analysis.
18 MS. MIZUNO: That's our understanding, 19 Your Honor, but the Applicant is here. I'm sure he 20 can answer your question himself.
21 MR. O'NEILL: We agree with that 22 characterization.
23 CHAIRMAN McDADE: If I can, let me just 24 ask a question. What you're saying is, yes, it's 25 based on the increased risk, but that increased risk NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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302 1 is what mandates them doing the SAMA analysis, that 2 given the increased risk they have to consider what 3 the alternative is and then make an assessment based 4 on that as to the comparative costs and whether or not 5 given the increased risk and assessment of how much 6 that risk is, how much it would cost to mediate that 7 risk, that's what they need to do. That's the 8 analysis.
9 MR. SIPOS: Yes, Judge McDade. And the 10 comments we've heard from Entergy and staff in the 11 last five minutes or so I believe they may have added 12 additional information than is in the record.
13 But I would like to come back to our 14 contention, our petition, and we specifically 15 identified the risk that's at the fire will disable 16 both trains and make it impossible to safely achieve 17 a hot shutdown or maintain a hot shutdown. That's not 18 a trivial matter and we also set forth that the risk 19 was no evaluated in SAMA for the analysis for Indian 20 Point 3. We cite to the Environmental Report and we 21 cite to IPEEE. We believe we've provided more than 22 adequate specificity in support of this contention.
23 And if they believe to the contrary, it 24 should have been put forth in the opposition and it 25 was not.
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303 1 JUDGE WARDWELL: And by that last 2 statement you mean in regards to saying that their 3 severe accidents that they looked at assume that the 4 fire barrier wasn't there at all and that both trains 5 failed.
6 MR. SIPOS: Yes.
7 JUDGE WARDWELL: But even with that you're 8 also saying that your contention is still viable 9 because you want them to look at and feel that it's 10 needed to look at what is the incremental cost 11 associated with the different fire barriers in 12 relationship to how it might improve the safety 13 aspects associated with keeping those trains online.
14 MR. SIPOS: Yes, Judge.
15 JUDGE WARDWELL: Thank you.
16 CHAIRMAN McDADE: Mr. O'Neill, anything 17 further on that?
18 MR. O'NEILL: Your Honor, I just want to 19 emphasize the fact that again this appears to be 20 largely a challenge to the current licensing basis, 21 the recently approved fire exemption, and to the 22 extent it is couched as a SAMA contention I just want 23 to emphasize the fact that it's a NEPA-driven 24 requirement and the rule of reason applies and the 25 Commission has said, "It would be unreasonable to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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304 1 trigger full adjudicatory procedures based merely upon 2 a suggested SAMA under circumstances which a 3 petitioner have done nothing to indicate the 4 approximate relative cost and benefit of the SAMA."
5 New York has simply not done that here.
6 MR. SIPOS: Judge, if they have done the 7 analysis, then they should produce it and we'll look 8 at it. But this is -- I think this morning is the 9 first time we've heard that.
10 CHAIRMAN McDADE: Okay. Moving on to --
11 Does the staff have anything further on that before we 12 move on?
13 MS. MIZUNO: Yes, Your Honor. We've been 14 focusing on page 95 of Entergy's answer docketed 15 January 23, specifically the portion that reads, "The 16 IPEEE did not credit those -- in preventing the fire 17 damage." And that's the reference we were referring 18 to, Your Honor.
19 Also I mentioned I think some case law 20 regarding redrafting contentions and focusing instead 21 on the contentions as written and provided by the 22 Petitioners themselves and the case in that regard 23 which we've cited in our reply is the Savannah River 24 --
25 (Aside) Pardon? I'm sorry.
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305 1 The case that I would be looking at, Your 2 Honor, would be Savannah River. It's a MOX case and 3 it's a Commission decision. It's CLI 01-13 and can be 4 found at 53 NRC 478. It's a 2001 decision. Thank 5 you.
6 CHAIRMAN McDADE: Okay. Contention 14, 7 that the SAMA analysis are incomplete and 8 insufficient, failed to include more recent 9 information regarding the time, frequency and severity 10 of potential earthquakes, failed to include an 11 analysis of severe accident mitigation alternatives 12 that could reduce the effect of an earthquake damage 13 in Indian Point 1 and its systems, structures and 14 components that support Indian Point 2 and 3.
15 (Off the record discussion.)
16 JUDGE LATHROP: Entergy, how do you 17 respond to this contention?
18 MR. O'NEILL: Our view initially is again 19 even though it's couched as a SAMA contention that 20 it's a challenge to the current licensing basis and 21 the adequacy of the IP 1 seismic design which we don't 22 even see as being really relevant here at all. I 23 mean, the relicensing action is focused on IP 2 and IP 24 3. IP 1 is only relevant to the extent that certain 25 systems or components may be relied upon by IP 2 and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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306 1 IP 3 operations and only relevant to the extent that 2 we're talking about the aging effects of those IP 1 3 structures, systems or components.
4 Another point we'd emphasize is that 5 seismic issues associated with this plant were 6 thoroughly considered during the initial licensing of 7 the plant some 30 years ago and there's a decision 8 documenting that analysis. Again, we would believe 9 the contention lacks specificity as well as 10 materiality.
11 They're not really challenging any 12 specific aspects of our SAMA analysis, particularly 13 the seismic portion thereof not suggesting that this 14 new seismic information or supposedly new seismic 15 information is going to effect the outcome of our SAMA 16 analysis which we believe is a requirement under 17 controlling condition case law.
18 CHAIRMAN McDADE: Let me ask sort of a 19 generic question about SAMA analysis and the first 20 statement that you made and this has been in the 21 papers as well and it's been the papers with regard to 22 many of the contentions based on alleged inadequacies 23 of SAMA analysis that is's effectively a challenge to 24 the current operating basis. Question, don't SAMAs 25 presuppose that the plant is operating in conformance NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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307 1 with the current operating basis in every instance, 2 that the SAMA is something entirely separate? So it 3 doesn't challenge whether the plant is operating in 4 accordance with the current licensing basis. It says 5 there are additional things that may be done that can 6 further mitigate the possible consequences of severe 7 accidents and it is appropriate to do an analysis and 8 effectively a cost/benefit based on what is the 9 likelihood, what is the possibility, the 10 probability/possibility, of this severe accident, what 11 would it take to mitigate it and after doing that 12 analysis that's all that's required.
13 Now depending on the result of the 14 analysis, it's expected that you would then take 15 appropriate action or that the staff would encourage 16 the Applicant to take appropriate action. But isn't 17 it a situation where whenever you have a SAMA analysis 18 it presupposes that you're already operating in 19 conformance with the current operating basis, current 20 licensing basis?
21 MR. O'NEILL: Yes. You're operating your 22 performance with the current licensing basis.
23 CHAIRMAN McDADE: So why is this done each 24 instance it's characterized as a challenge to the 25 current licensing basis?
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308 1 MR. O'NEILL: Because again we think it's 2 thinly veiled attempt to urge the Applicant or the 3 Agency to change the current design basis for the 4 plant. There's much ado made about the allegedly new 5 seismic information, but not much is said about how it 6 would materially effect the outcome of the SAMA 7 analysis that's contained in our application and it, 8 as discussed in the application, employs a lot of 9 conservative assumptions. It discusses certain 10 enhancements that were made previous beyond the IPEEE 11 analysis and that's documented NUREG 1742 as well.
12 Again, there are two parts to this 13 equation where you can say to the Applicant you must 14 consider this information or you haven't to considered 15 properly and then you have to explain why, you know, 16 why your alleged failure to consider that information 17 properly has effected the outcome of your SAMA 18 analysis.
19 CHAIRMAN McDADE: Okay.
20 MR. O'NEILL: I don't think the State has 21 taken it to that level.
22 CHAIRMAN McDADE: But I think you're going 23 one beyond where my question is at least in my mind 24 and again I'm trying to clarify. You have done a 25 number of SAMA analysis. That is a significant NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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309 1 portion of the Environmental Report. In none of those 2 do you indicate that you haven't been in compliance 3 with the current operating basis. Even though you're 4 in compliance you still have found it appropriate to 5 do a SAMA analysis and in the circumstance here 6 they're saying that this is another instance where you 7 should have done a SAMA analysis.
8 They're not saying that you're in 9 violation of the current licensing basis. They're 10 just saying that because of this new data here having 11 to do with seismic, and again not talking as to 12 whether or not this is new and significant, that's 13 another issue, but just the allegation is it's new and 14 significant and this new and significant information 15 should have been enough not to indicate that you're 16 not in compliance, but for you to do this analysis of 17 does this effect the likelihood of a severe accident, 18 are there things that could be done to mitigate the 19 possibility of a severe accident that could be caused 20 by this new data and that you should do an analysis of 21 it.
22 So if that's the argument, why do you 23 characterize this as an attack on the current 24 licensing basis?
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310 1 I mean the analysis is based on the current licensing 2 basis and they're asking us to assume or presuppose 3 certain changes to the design basis of the plant 4 apparently to accommodate this new information.
5 CHAIRMAN McDADE: Okay. And, New York, 6 correct me here if I'm wrong. That's not what I read 7 or the way I interpreted what you said. It has 8 nothing to do with the design basis of the plant. The 9 design basis of the plant occurred based on the data 10 that was available at the time and they did it 11 appropriately. Your allegation here is that 12 subsequently new information was developed and based 13 on that new information, not that the plant was 14 incorrectly designed initially, but just based on that 15 new information it raises a possibility of a severe 16 accident and therefore the cost associated with 17 mitigating that increased possibility of a severe 18 accident should be analyzed and that that should have 19 been part of the Environmental Report. Is that -- Am 20 I correctly interpreting what your allegation is?
21 MR. SIPOS: You are correct, Judge McDade.
22 We're not challenging the current licensing basis.
23 We're asking for an analysis.
24 CHAIRMAN McDADE: Based on new 25 information, in this contention, seismic data that was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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311 1 not available when the plant was designed but is 2 available now and your allegation, again not saying 3 whether it's correct or not, but you're saying that 4 this seismic data that's available now is sufficiently 5 different that it warrants further analysis.
6 MR. SIPOS: Yes. Indian Point 1 received 7 its construction license in 1956. Things have changed 8 since then in terms of information.
9 CHAIRMAN McDADE: So shouldn't we just 10 focus on whether or not the new information is 11 sufficient to warrant an analysis, that it raises an 12 increased possibility of a severe accident to the 13 degree that a SAMA is mandated?
14 MR. O'NEILL: Your Honor, again I really 15 think this is an attempt to inform the Agency or the 16 Applicant to change the design basis. They say right 17 in their pleading, "In order to reduce the earthquake 18 risk for IP 1 and to critical conjoin in adjacent 19 Units 2 and 3 is necessary to improve the ability of 20 IP 1's critical components to withstand the effects of 21 an earthquake." That is directly related to the 22 plant's design basis.
23 JUDGE WARDWELL: But not if it's only in 24 regards to the application associated with a SAMA, is 25 it? That's what the whole contention deals with. It NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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312 1 has nothing to do with the current licensing basis it 2 doesn't seem to me.
3 MR. O'NEILL: I don't see how you can 4 separate or divorce them for purposes of NEPA.
5 JUDGE WARDWELL: Could you explain how the 6 seismic information is incorporated in your SAMAs that 7 you have done and what areas or give some examples?
8 I mean, you don't do a separate SAMA based on seismic.
9 You do some SAMA that the seismic has an influence on 10 the severe accident or the degrees of them or the 11 numbers of them or whatever. So how would it fit into 12 this?
13 MR. O'NEILL: Give me a minute, Your 14 Honor.
15 (Off the record discussion.)
16 CHAIRMAN McDADE: Following up on an issue 17 that was raised yesterday, Mr. Turk, even though 18 Entergy is still located at the same table, we have 19 been able to find them for questioning today.
20 MR. TURK: Thank you, Your Honor. However 21 these contentions are not being addressed by me, but 22 by Ms. Mizuno. So I'm not the direct beneficiary of 23 your new intent. But I appreciate it.
24 (Laughter.)
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313 1 the question again? You're asking?
2 JUDGE WARDWELL: How does the seismic data 3 and analysis thereof influence your SAMAs?
4 MR. O'NEILL: My understanding is they 5 have to take into account how ground motion might 6 effect, and the core damage frequency, that's the 7 thing, how it's going to effect plant systems and it's 8 reflected in the IPEEE, the original IPEEE.
9 JUDGE WARDWELL: When was the IPEEE 10 analyses performed or your SAMA analyses if in fact 11 it's different than what you did for the IPEEE?
12 MR. O'NEILL: The IPEEEs, I believe, were 13 performed in the mid `90s and updated in -- They 14 weren't. Okay. So they're telling me that they 15 weren't updated. They were performed in the `90s.
16 JUDGE WARDWELL: And what did you use?
17 Seismic information available at the `90s or did you 18 use the information that was previously used or in the 19 design of the plant?
20 (Off the record discussion.)
21 MR. O'NEILL: Yes. The NUREG that we used 22 to prepare the IPEEE specified which information was 23 available at that time and we used the Lawrence 24 Livermore seismic data. The IPEEE was prepared in 25 accordance with NUREG 1407 which is entitled NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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314 1 Procedural --
2 JUDGE WARDWELL: So whatever earthquake 3 approach or analysis or data that was in 1407 that was 4 used for the IPEEE.
5 MR. O'NEILL: Yes.
6 JUDGE WARDWELL: How would anyone go about 7 in a license renewal proceeding handling a situation 8 where an existing plant was designed and approved at 9 a location that is now obvious as a much more severe 10 earthquake area in regards to the SAMA analysis? And 11 I can give you an example if it helps. Are you 12 familiar with the Humboldt Plant Licensing site?
13 MR. O'NEILL: I'm not intimately familiar 14 with it.
15 JUDGE WARDWELL: Have you ever heard of 16 it?
17 MR. O'NEILL: Yes, certainly.
18 JUDGE WARDWELL: And it's a plant from my 19 understanding that was licensed but was never built.
20 Is that correct as far as you know?
21 MR. O'NEILL: Yes.
22 JUDGE WARDWELL: If you don't know that's 23 fine, too. I just would rather use a hypothetical.
24 I thought I'd use that.
25 MR. O'NEILL: Okay. That's my NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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315 1 understanding.
2 JUDGE WARDWELL: That was licensed and 3 has, as I understand it, subsequently been indicated 4 to be right at a frequent point of the plates along 5 the West Coast that was not known at the time it was 6 licensed. That's my understanding. Is that your 7 understanding or do you have no understanding in that 8 regard?
9 MR. O'NEILL: That I don't know.
10 JUDGE WARDWELL: Okay. Will you accept my 11 understanding of it then for an example?
12 CHAIRMAN McDADE: Why don't we assume for 13 sake of argument?
14 JUDGE WARDWELL: That's what I just said.
15 So assuming that that's the situation, how does one --
16 are you arguing that that information if, in fact, 17 that plant was built and if, in fact, that plant was 18 going through the licensing renewal process for the 19 sake of argument, are you suggesting that that 20 information should be ignored and only use the 21 previous seismic information in regards to doing the 22 SAMAs for that situation?
23 MR. O'NEILL: I believe it's really a 24 licensing design basis issue that would have to be 25 taken up in Part 50 space.
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316 1 JUDGE WARDWELL: I'm sure it would. But 2 separate from that, would it also not have to be taken 3 up in the SAMA analysis if, in fact, it was done as a 4 current licensing basis or wasn't it?
5 MR. O'NEILL: The problem I'm having with 6 the analogy is that it seems like it could be -- That 7 was an extreme case, Your Honor, and there is 8 substantially different seismic conditions.
9 JUDGE WARDWELL: We would address the 10 magnitude of whether that comes to the level of a 11 threshold. That's a separate issue and I'll have some 12 questions on that for New York. But for you, I'm just 13 interested in what appears to be a categorical denial 14 on your part of anything associated with changes in 15 si0tuations like this being ignored in the SAMA 16 analysis in regards to contentions raised by the 17 potential Intervenors and I wanted to explore whether 18 or not a situation like that would meet your same 19 approach or whether or not you would, in fact, 20 entertain or think it's reasonable to entertain 21 consideration of those different seismic conditions 22 like would occur at that particular site.
23 MS. SUTTON: Your Honor, one of the 24 primary inputs for the SAMA analysis as we've 25 explained is the IPEEE and the IPEEE is part of your NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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317 1 current licensing basis. So if it needed to be 2 updated in the situation that you've indicated with 3 new information that would have to occur as part of 4 the current plant operating history and would not be 5 driven by a SAMA analysis for purposes of license 6 renewal.
7 JUDGE WARDWELL: But if, in fact, it 8 hadn't been updated yet by the IPEEE, should it still 9 be excluded from this hearing?
10 MS. SUTTON: Yes, Your Honor, because that 11 is part of the current licensing basis. The process 12 that the NRC has established for purposes of license 13 renewal recognizes that the current licensing basis is 14 not to be changed for purposes of license renewal.
15 You rely on your CLB. If it needed to be changed, it 16 would be changed as part of Part 50 and if an 17 intervenor believes that it needs to be changed for 18 that reason, they should raise that as current Part 50 19 issue.
20 JUDGE WARDWELL: And how do they do that 21 as current Part?
22 MS. SUTTON: Again, they can go through 23 2.206 and yesterday we mentioned that and I'll be 24 specific. "Any person may file a request to institute 25 a proceeding pursuant to 2.206 to modify, suspend or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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318 1 revoke a license." And that's what they should do.
2 The same applies to the fire barrier issue earlier.
3 JUDGE WARDWELL: Thank you. New York, how 4 do you respond to that and then also how do you 5 respond to the statements or implications that suggest 6 that there is a significant enough difference in the 7 earthquake information to warrant any reevaluation of 8 it, that there wouldn't result in any differences in 9 the SAMA analysis?
10 MR. SIPOS: In this proceeding, New York 11 does not seek to directly or indirectly initiate a 12 2.206 enforcement proceeding. We understand the scope 13 of Part 54. We're not trying to do it and I'll repeat 14 that as long as I have to. It's not what we're about 15 here.
16 In these contentions, we're trying to 17 follow through on the SAMA analysis as provided by 18 Part 51 of the regulations and as we understand those 19 regulations, they may provide, they provide a platform 20 to conduct an analysis of costs. Are there mitigation 21 actions that could be implemented? What are those 22 costs? And how does it work out on a cost/benefit 23 analysis?
24 And we hear from Entergy they're 25 challenging the CLB. They can't do this. They can't NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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319 1 do that. Again, that's not what we're trying to do 2 here. However, SAMA provides a platform on a going-3 forward basis for licensing renewal to weigh the cost 4 and benefit and depending on how that analysis is 5 done, if it's done appropriately and accurately which 6 is all we're seeking, which is what we're seeking to 7 do here in this contention, that may inform staff's 8 position. It may inform the Board's position. It may 9 inform the Commission's decision as to what 10 conditions, if any, would be imposed for the period of 11 license renewal, that period now that's four or five 12 years out in the future.
13 JUDGE WARDWELL: But yet what you're 14 challenging in this situation is a difference in 15 seismic information and that as an entity isn't used 16 as -- You don't evaluate seismic as a SAMA that feeds 17 into the SAMA analysis. Is that correct>
18 MR. SIPOS: That is correct.
19 JUDGE WARDWELL: Why aren't there 20 arguments that have been made by Entergy appropriate, 21 that your avenue to change those parameters in the 22 SAMA analysis be restricted to petitions for changes 23 in the current licensing basis as the first step 24 before you can go to the second step and incorporate 25 them in the SAMA analysis as I interpret their NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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320 1 argument?
2 MR. SIPOS: I don't know that Part 51 says 3 before a petitioner may raise an issue for SAMA it 4 first has to exhaust a 2.206 enforcement proceeding.
5 I don't think there is the nexus Entergy is trying to 6 make out here. I believe they can operate on separate 7 tracks. I believe it's the Petitioner's option to 8 decide which one of those tracks it wishes to go 9 depending on the timing, depending on the schedule or 10 it may pursue both. But I don't think it's a 11 condition precedent to raise an issue for SAMA 12 analysis to have completely exhausted a 2.206 or 13 indeed to even have initiated 2.206.
14 CHAIRMAN McDADE: Isn't it just the 15 opposite though? Isn't it a situation that they are 16 necessarily on different tracks, that the SAMA 17 analysis is just that? It is an analysis. It doesn't 18 require anything. You do the analysis. It doesn't 19 affect the current licensing basis.
20 Now depending on the result of the SAMA, 21 the applicant, Licensee in this case, may decide, "We 22 have done it. Here is the SAMA. We're not going to 23 change a darn thing." You as an interested party may 24 look at it and say, "Looking at that cost/benefit 25 analysis, we think they should do something. Now we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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321 1 are going to go to 2.206 and we are going to file a 2 petition with the NRC to require that they do 3 something. But at this point, all that we're asking 4 as an intervenor is that the analysis be done." Is 5 that correct?
6 MR. SIPOS: Yes, Judge. That is correct.
7 CHAIRMAN McDADE: Okay.
8 MR. SIPOS: And I might have one --
9 CHAIRMAN McDADE: And you would have no 10 basis at this point for saying that any specific 11 action under 2.206 should be done at this point until 12 the analysis is done and you have the result of the 13 analysis and that you shouldn't be required as a 14 potential intervenor to do the SAMA yourself in the 15 first instance, that that obligation is on, in the 16 first instance, the Licensee to do the SAMA and then 17 for the NRC staff to analyze it and then for at that 18 point if you are unsatisfied with what action, if any, 19 is taken as a result of the SAMA, then you would be in 20 a position to pursue remedies under 2.206. Am I 21 correctly understanding your position?
22 MR. SIPOS: May I consult just one moment, 23 Your Honor?
24 CHAIRMAN McDADE: Okay.
25 (Off the record discussion.)
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322 1 MR. SIPOS: Thank you, Your Honor, and the 2 answer is yes. You are correct and one caveat to what 3 -- Actually one counterpoint to what Entergy is 4 saying, they have discussed the IPEEE. But as we read 5 it, that is not part of the current licensing basis.
6 It was an analysis done 12 or more years ago.
7 JUDGE WARDWELL: What indications do you 8 have that there would be any changes in the SAMA if, 9 in fact, the current earthquake information was used?
10 MR. SIPOS: We believe that there are 11 deficiencies in IPEEE and we have outlined them.
12 They're in the next contention, Contention 15, and 13 with specificity we have underscored what those 14 deficiencies are.
15 JUDGE WARDWELL: And could you repeat 16 those here now?
17 MR. SIPOS: Right. I'm sorry. There is 18 also no IPEEE for Unit 1. My understanding is that it 19 was done for 2 and 3 and not Unit 1 and I would refer 20 to paragraph 4 of Contention 15 where we are 21 discussing the IPEEE and specifically the 22 Environmental report pages 4-64 to 4-67. I believe 23 it's Appendix E, Attachment E to Appendix E at pages 24 1-72 to 1-73, the ER at 4-68 to 4-71 and then 25 Attachment E 3-68 to 3-69 and then the paragraphs that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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323 1 follow thereon in the Petitioner paragraphs for 2 paragraph 4, 5, and 6 discuss the deficiencies.
3 CHAIRMAN McDADE: And we have been talking 4 in the context of Contention 14, but do you agree that 5 Contentions 14 and 15 are very similar and perhaps it 6 might be helpful to discuss them together?
7 MR. SIPOS: Yes, and we did that in our 8 reply.
9 CHAIRMAN McDADE: And let me turn to 10 Entergy right here. Perhaps a more compelling 11 argument, as I understand, one of the arguments that 12 you are making is that the burden is on New York as 13 the Intervenor to demonstrate that the seismic 14 information available at the time of licensing and 15 available now is sufficiently different to trigger a 16 SAMA, that that is a threshold burden that they have 17 in order to bring this contention. Is that correct?
18 MR. O'NEILL: That it could result in the 19 identification of new and/or additional SAMAs that are 20 potentially cost beneficial.
21 CHAIRMAN McDADE: Okay. But they have the 22 burden of demonstrating how this data is significantly 23 different in order to trigger an additional SAMA 24 analysis.
25 MR. O'NEILL: That is our position. We NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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324 1 believe it's consistent with Commission case law, CLI 2 -- 17 in particular.
3 CHAIRMAN McDADE: Okay. And how does New 4 York respond specifically? Where can you point to us 5 in your petition that explains why the data is 6 sufficiently different to significantly increase the 7 possibilities of a severe accident in order to trigger 8 the additional SAMAs?
9 MR. SIPOS: We had attempted to do that 10 throughout the entire contentions. There are many 11 paragraphs in there that have specificity. Before I 12 had mentioned paragraph 4 and the following paragraph 13 in Contention 15 and actually it continues on beyond 14 paragraphs 5, 6, and 7. I would underscore that these 15 contentions are supported by declarations from 16 Leonardo Seeber from Columbia University and Dr. Lynn 17 Sykes also from Columbia University and they review 18 the progression of seismic data in the past generation 19 and attempt to set forth, attempt to identify the 20 significant changes, the advances, the differences in 21 understanding that we now know in 2007 and that this 22 region is more susceptible, has higher seismic risk, 23 than was previously thought.
24 JUDGE WARDWELL: Did they provide any 25 indication of whether or not that would actually NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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325 1 change any of the results of the SAMAs?
2 MR. SIPOS: No.
3 JUDGE WARDWELL: And do you in your 4 petition make any statements related to that?
5 MR. SIPOS: Our contention is that the 6 analysis hasn't been done correctly. We're not 7 predicting how if Entergy did it correctly what the 8 results would be and we don't believe it's our burden 9 at this time to do that. We believe we've raised the 10 contention.
11 (Off the record discussion.
12 MR. SIPOS: Right. We do point out and as 13 I mentioned before that the new data is substantially 14 different and it's also bolstered by the United States 15 Geological Survey's review and seismic hazard maps and 16 analyses.
17 JUDGE WARDWELL: What components of IP 1 18 are you concerned about that are utilized by IP 2 and 19 IP 3 that would make any significant difference in 20 regards to justifying the need for your Contention 14?
21 MR. SIPOS: Yes, Judge Wardwell. We 22 attempted to set that out in the petition, but also we 23 repeated it in the reply. But in a file identified as 24 UFSAR for Unit 1 and it's a misnomer, that file name, 25 there is the decommissioning plan for Unit 1 and in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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326 1 those series of documents that are nested in that PDF 2 file, there are several statements by Con Ed 3 identifying system and system which will still be in 4 use. Con Ed uses various terms saying these systems 5 are integral to the continued operation of 2 and 3 and 6 they are extensive systems.
7 I would refer the Court to, I believe, 8 Appendix B to our reply in which we took quotes from 9 the UFSARs for Unit 2 and Unit 3. But also flipping 10 back to Contention -- I'm looking in Contention 14.
11 It may also be in the supporting declarations as well.
12 Just one moment, Your Honor, if I may.
13 (Pause.)
14 MR. SIPOS: I'm sorry, Your Honor. I was 15 in the wrong contention. Paragraph 4 for Contention 16 14 has various quotes from that PDF file and it says, 17 "Unit 1 contains extensive common facilities that are 18 required for the operation, for the continued 19 operation, of Units 2 and 3." That's the 20 decommissioning plan for Indian Point October 1980 at 21 Section 2.1. "For example, the Indian Point Nuclear 22 Power Station uses several IP 1 systems including 23 without limitation" and this is from Con Ed's 24 statement, "water supply, service boilers, 25 electricities, integrated rad waste system and a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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327 1 nuclear steam blowdown purification system."
2 There are additional ones, I believe, 3 identified in the UFSARs for 2 and 3. Entergy can't 4 get away from the fact that the systems, structures 5 and components from this facility which had been 6 around for a long time are crucial to the continued 7 operation of 2 and 3.
8 JUDGE WARDWELL: Turning to Entergy, are 9 there any components, systems and structures that are 10 from IP 1 that are integral to the safety aspects 11 associated with the operations of IP 2 and IP 3?
12 MR. O'NEILL: My understanding is certain 13 structures and components have been s scoped in and 14 they are certainly looked for purposes of aging 15 management.
16 JUDGE WARDWELL: That's sufficient to 17 answer my question. Thank you.
18 JUDGE LATHROP: You mentioned Entergy in 19 your SAMA calculations that you used conservative 20 calculations. Does that refer to your use of the 21 seismic source term in these calculations?
22 MR. O'NEILL: At this point I can't speak 23 specifically to the source term but I would say that 24 application, the Environmental Report, does discuss at 25 some length why the seismic PSA analysis was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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328 1 conservative. It discusses the various conservative 2 assumptions, none of which the State really directly 3 controverts. It talks about sequences and the seismic 4 PSA involving loss of offsite power were assumed to 5 unrecoverable. A single conservative surrogate 6 element whose failure leads directly to core damage 7 was used in the seismic risk quantification to model 8 the most seismically rugged components.
9 So there are examples of conservatisms in 10 the application. This is page 4-65 of the 11 Environmental Report and those are examples with 12 respect to IP 2.
13 JUDGE LATHROP: And, Staff, have you 14 reviewed these SAMA calculations?
15 (Off the record discussion.)
16 MS. MIZUNO: Thank you, Your Honor. The 17 quick answer to your question is no, we have not. We 18 are in the process of doing a SAMA analysis of the 19 Applicant's SAMA submission and the results of that is 20 going to be published in the supplement to the GEIS.
21 So we're in process now. So the answer to your 22 question is no, but we are doing it.
23 And there were questions earlier about 24 shared systems, structures and components for IP 1 25 versus IP 2 and IP 3 and it's the staff's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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329 1 understanding based on the submittal that, yes, there 2 are shared systems, structures and components and to 3 the extent that they don't show up in the SAMA 4 analysis, that's not an example of a deficiency per se 5 because under probability risk assessment as I've been 6 educated by my experts when you do the probability 7 risk assessment if the system, structure or component 8 is viewed as failing, if you're not going to credit 9 it, it's not going to show up in the analysis. So 10 that's one end of the spectrum.
11 On the other end of the spectrum, if this 12 system, structure or component does not contribute to 13 risk in any substantial way it's also not going to be 14 addressed. Both of those ideas make sense. Either it 15 fails so that's why it's not included because it's not 16 credited. They don't give it any credit for longevity 17 or sustained surviving or it's not important.
18 Therefore, it's not considered.
19 So the fact that a shared system, 20 structure or component is not in the SAMA analysis 21 does not mean the analysis is deficient. Thank you.
22 MR. TURK: Your Honor, may I --
23 MR. SIPOS: I'm sorry, Sherman.
24 MR. TURK: May I add a comment in response 25 to Judge Lathrop's question? Judge Lathrop had asked NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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330 1 about the conservativeness of the seismic source term.
2 It's my understanding that the seismic PSA in the 3 seismic analysis done by the Applicant, this was not 4 a deterministic analysis where you take a ground 5 motion and you say here is the event that you have to 6 plan for and what are the consequences or the 7 mitigation alternatives that come when you have that 8 event. Rather it's a probabilistic determination 9 where you look at a whole range of events including 10 events that far exceed the design basis event.
11 So it's my understanding, for instance, 12 that the seismic analysis went all the way up to --
13 Did it go to 1G? I'm informed by our probabilistic 14 SAMA expert that it went all the way up to 1G as 15 opposed to the 0.18G that the State said should be 16 looked at now. But the way that the analysis is done 17 is you get a different probability for different 18 magnitude events and that's what's then factor into 19 the SAMA analysis.
20 If you were to say here's new information 21 that should be considered, what you would do 22 essentially is lift the curve. You would get a 23 different probability for different magnitudes. But 24 it wouldn't be that you're suddenly considering events 25 that haven't been considered. You're just looking at NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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331 1 a different curve.
2 JUDGE WARDWELL: Which in turn could 3 influence the results of the SAMA.
4 MR. TURK: And that's important because 5 what if the new information was you should assume a 6 lesser probability for different magnitude events. In 7 that case your SAMAs might be skewed in the other 8 direction.
9 So the proper approach we believe is to do 10 exactly what the Applicant has done. You use the 11 current design basis for the plant and you use their 12 individual plant examination of external events to 13 decide what is the range of events we need to look at, 14 what is the probability, and how does that affect our 15 analysis. So we think that our approach is right. We 16 think going to new information that's not part of 17 current design basis would skew the analysis and not 18 necessarily in the right direction.
19 JUDGE LATHROP: Thank you. That was the 20 kind of discussion I was looking for.
21 MR. SIPOS: Judge, if I may.
22 JUDGE LATHROP: Please.
23 MR. SIPOS: We did call into question the 24 seismic source term. We believe we pointed out new 25 information which would undercut the assumptions in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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332 1 Entergy's submission in IPEEE and just briefly to 2 respond to a comment made by NRC counsel and merely to 3 be illustrative, these conjoined systems are crucially 4 important for one. For example, one is the 5 circulating water system involving sodium 6 hydrochloride which may be stored in 4,000 gallon 7 tanks. This is the substance that's used to spray in 8 as I understand in containment in various accidents, 9 clearly, important for safety.
10 CHAIRMAN McDADE: I think basically we 11 have a good idea with regard to Contentions 14 and 15 12 of the positions of the parties. It's now about 10:55 13 a.m. By way of scheduling what I would propose to do 14 is that we take a ten minute break at this point.
15 It's only taken us eight hours to get through the 16 first 15 contentions. So we could be optimistic and 17 hope to get through the next 17 in an hour and a half 18 and take a lunch break at 12:30 p.m.
19 So what I would propose is that we take a 20 ten minute break now, come back at 11:05 a.m., at that 21 point continue until about 12:30 p.m. and then take a 22 one-hour lunch break at 12:30 p.m. Is that agreeable 23 with New York?
24 MR. SIPOS: Yes, Your Honor.
25 CHAIRMAN McDADE: With the staff?
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333 1 MS. SUTTON: Yes, Your Honor.
2 CHAIRMAN McDADE: Entergy?
3 MR. TURK: Yes, Your Honor.
4 CHAIRMAN McDADE: Anything we should take 5 up before the break?
6 (No verbal response.)
7 CHAIRMAN McDADE: No. We'll see you in 8 ten minutes. Off the record.
9 (Whereupon, at 10:58 a.m., the above-10 entitled matter recessed and reconvened at 11:10 a.m.)
11 CHAIRMAN McDADE: Let's come to order.
12 Take your seats, please.
13 Let's get started with Contention 16 which 14 indicates that Entergy's model will not accurately 15 predict the geographic dispersion of radionuclides 16 released in a severe accident and Entergy's SAMA will 17 not give an accurate estimate of the cost of human 18 exposure as a result. Again this takes into 19 consideration the applicability of the MACCS2 code 20 which I think I was referring to earlier as the MACCS2 21 code. I don't know if that means I was updating it.
22 Judge Lathrop?
23 JUDGE LATHROP: In this contention, the 24 allegation is that ATMOS model which is part of the 25 MACCS2 system is not valid for long ranges.
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334 1 So that strikes me as a direct attack on 2 the validity of the code system being used outside the 3 range of that applicability. So how does Entergy 4 respond to that?
5 MR. O'NEILL: Your Honor, we're going to 6 stick to our guns on this one and we view it as yet 7 another generic challenge to the MACCS2 code. It 8 could apply to any particular proceeding here. We 9 recognize the distinction that counsel or State has 10 made relative to the Pilgrim proceeding in terms of 11 the procedural posture, but we believe that holding is 12 very persuasive here that generalized attacks on the 13 adequacy of the MACCS2 code did constitute litigable 14 issues in this proceeding.
15 JUDGE LATHROP: But New York argues that 16 in this case the population density outside 32 miles 17 is sufficiently high, that this is a very important 18 part and so that seems to me to be unique to this 19 particular application, not generic.
20 MR. O'NEILL: Well, Your Honor, again, we 21 don't think they've taken it quite far enough. As the 22 Pilgrim Board held material with regard to SAMA 23 analysis, it must be a fact which reasonably can be 24 expected to impact the conclusion that any particular 25 mitigation alternative may or may not be cost NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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335 1 effective. So there's got to be some indication that 2 the asserted errors would cause the results to be less 3 conservative or in fact to be nonconservative.
4 Unreasonable for purposes of a NEPA analysis.
5 JUDGE LATHROP: But is the dose is 6 significantly increased, the population outside 32 7 mile, then isn't that significant?
8 MR. O'NEILL: Your Honor, I don't think 9 they've made a showing that that would, in fact, be 10 the case. They're just suggesting that we use an 11 alternative model. Again, we're following NRC-12 endorsed guidance here using a code that's been used 13 repeatedly in various SAMA analyses to the approval of 14 the NRC and they're suggesting that we use an EPA-15 approved code, the relevance of which is not 16 thoroughly explained to us.
17 JUDGE LATHROP: So you're suggesting that 18 although it might not be accurate outside 32 miles, it 19 might, in fact, overestimate the dose?
20 MR. O'NEILL: Repeat that, please?
21 JUDGE LATHROP: Well, what I'm saying is 22 that they haven't shown -- or they might not have 23 shown a particular result.
24 MR. O'NEILL: Yes, that's correct.
25 JUDGE LATHROP: So how does New York feel NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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336 1 about that?
2 MR. SIPOS: Entergy's burden is to do an 3 appropriate SAMA analysis. That is a burden that 4 remains with them throughout this entire proceeding.
5 We have specifically identified in Contention 16 what 6 we believe is a deficiency, what we believe is an 7 inaccuracy. And we believe we have identified that 8 deficiency with specificity, supported by expert 9 declarations, excuse me, an expert declaration by Dr.
10 Egan who has raised questions about how this model 11 that -- how this aspect of the model, this straight-12 line Gaussian plume assumption, how that will affect 13 the analysis here.
14 Indian Point has unique terrain around it 15 that can affect the application of the straight-line 16 Gaussian plume, so it's not only beyond 32 as I 17 understand it, Judge Lathrop, but it's also closer in, 18 but indeed, as you point out, there are concerns about 19 how this model will project dispersion beyond 32 20 miles. If you get beyond 32 miles, you're well into 21 the six counties, the six burroughs of New York, in 22 very densely-populated areas. It's their burden to do 23 it properly. We believe we have met our burden of 24 production, if you will, that they haven't.
25 JUDGE LATHROP: As I understand the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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337 1 Staff's answer earlier, that in these systems a whole 2 range of possibilities is considered, particularly for 3 the weather and the climate and the terrain, but the 4 probability of the weather affecting the severe 5 weather, mild weather, affecting the dispersion of the 6 plume is covered by doing a whole range of 7 calculations and then they are weighted, based on the 8 probability of them happening. So why haven't they 9 covered everything by doing it that way?
10 MR. SIPOS: A whole range of assumptions 11 that are inaccurate do not necessarily make the result 12 somehow more accurate. There are -- our expert, Dr.
13 Egan has, with a great deal of expertise, has called 14 into question -- this is an outmoded, obsolete node, 15 if you will, in the analysis and should not the 16 analysis be done correctly. New York submits, given 17 this siting of this plant, that if this is the place 18 to be very sure that it's done accurately. That's 19 what New York is interested here, given the population 20 density. Things we've already discussed I don't wish 21 to belabor the point, but it has to be done right 22 here.
23 CHAIRMAN McDADE: Let me ask a couple of 24 questions. First of all, a procedural question and 25 then follow it up with a substantive question. The NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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338 1 procedural question you've indicated that you followed 2 the MACCS2 code has effectively had the imprimatur of 3 the NRC Staff. It's been used for years. You've done 4 the best that you could with it.
5 That said, if the Petitioner were able to 6 demonstrate that that code resulted in an inaccurate 7 or unreliable result, wouldn't it be appropriate for 8 them to challenge it here in this proceeding and for 9 us to have a hearing to determine whether or not that 10 code was going to produce appropriate data?
11 MR. O'NEILL: Your Honor, we don't believe 12 so. Again, we believe it's a generic attack on a code 13 that's had numerous applications.
14 CHAIRMAN McDADE: But first of all, the 15 question is can they attack the code? That's the 16 procedural question. Is it permissible for them to 17 attack the code?
18 The next question is going to be more 19 substantive which is based on what they've presented, 20 have they adequately attacked that code to raise a 21 genuine issue as to its viability in this proceeding?
22 MR. O'NEILL: Yes, Your Honor. They can 23 attack our particular use of the code, but they have 24 to do so -- this is where perhaps I disagree. The 25 burden here is on the Petitioner to proffer an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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339 1 admissible contention. Certainly, if we have an 2 admitted contention, we bear the burden of proof, but 3 the initial burden is on the Petitioner and we don't 4 believe that the State has met that.
5 This goes to the materiality issue. Is 6 this going to substantively affect the outcome of our 7 SAMA analysis? They're not pointing into any 8 additional SAMAs that may become cost beneficial as a 9 result of this alleged deficiency in the MACCS2 code.
10 Their argument, necessarily, must be that we're 11 somehow underestimating health costs or economic costs 12 and that has properly skewed our SAMA analysis in a 13 way that's let us not to include or to identify or to 14 properly evaluate certain costs beneficial SAMAs.
15 And we don't think they've made the requisite showing 16 in that regard.
17 CHAIRMAN McDADE: Well, they claim that 18 they have suggested that the ATMOS model is 19 inadequate, that the inadequacy of that ATMOS model 20 has been noticed by the NRC Staff and specifically 21 that there are other models, EPA models, that are 22 demonstrably better at predicting dispersion and that 23 therefore to continue to rely on the ATMOS model when 24 these other models are available is inappropriate and 25 that they should be able to litigate whether or not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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340 1 the ATMOS model or the other models, the EPA models 2 better create or estimate what the reality would be.
3 What's wrong with that argument?
4 MR. O'NEILL: Well, we don't think they've 5 actually showed any nexus between the models that are 6 cited. EPA's models which were used to model 7 dispersion of chemical, there are air pollutants for 8 purposes of Clean Air Act compliance and they haven't 9 been used in the nuclear context before, to my 10 knowledge.
11 CHAIRMAN McDADE: But specifically, 12 procedurally there's not a problem with their doing 13 it. Substantively, what you're saying is that the EPA 14 models on which they rely have to do with the 15 dispersion of chemical pollutants, that it has to do 16 with the dispersion of chemical pollutants as it would 17 affect violations of the Clear Air Act, and that there 18 needs to be a demonstrable nexus between that and the 19 ATMOS model that's used in the MACCS2 code here with 20 regard to the dispersion of radionuclides and it's 21 your position that they have the burden of showing 22 that nexus of why the EPA code, the EPA code chemical 23 pollutants would be applicable here, would be more 24 applicable and then the next step is that if that were 25 used, they have the burden not of doing a new SAMA, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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341 1 but at least demonstrating that it creates a 2 reasonable potential for the result of the SAMA to be 3 different.
4 MR. O'NEILL: Yes, that's correct.
5 CHAIRMAN McDADE: Okay. How have you 6 demonstrated that, do you think? First of all, that 7 the applicability of the EPA, and again, they point 8 out in their papers that these have to do with 9 dispersion of chemical pollutants, not radionuclides, 10 so how have you demonstrated that these models would 11 be more accurate than the ATMOS model that they used 12 in the MACCS2 code here for radionuclides? And then 13 the next question is why would that affect, even if 14 that were so, why would it affect -- why do you 15 believe that there's a reasonable possibility that the 16 SAMA would be affected?
17 MR. SIPOS: May I have one moment?
18 (Pause.)
19 MR. SIPOS: There were a lot of questions 20 in there. Let me see if I can answer them in 21 something of a coherent fashion.
22 First off --
23 CHAIRMAN McDADE: That presupposes they 24 were asked in somewhat of a coherent fashion.
25 MR. SIPOS: I know they were, Your Honor.
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342 1 First off, Entergy says this model is not appropriate, 2 the model that New York is proposing. New York and 3 its experts say it is. Right there, there's a 4 dispute. We believe that should qualify this 5 contention for admission.
6 Going a step further into Entergy's 7 criticism that the EPA model concerns only chemicals, 8 radionuclides are a type of chemical. EPA has a 9 radiation program and is very expert on air 10 dispersions of a myriad of chemicals. We believe that 11 it can and should and does include the scenario that 12 we have here.
13 As to I think the second part of your 14 question and it may carry over to something that Judge 15 Lathrop asked before, what's the effect? If one is 16 mapping out the plume and it's inaccurate, and the 17 straight-line Gaussian plume, Judge, leads one to 18 suspect that the plume is going across the river in a 19 westerly direction to a state park, sparsely 20 inhabitated or an area that is not densely inhabited, 21 that's by definition going to have an impact on the 22 outcome whereas an accurate, a more accurate model, 32 23 miles out, even closer in given the water, given the 24 effects of the river, given the effects of the 25 topography could lead to a different result.
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343 1 At the end of the day, why not use the 2 best information? It's a theme, I think we're 3 hearing, actually not only in this contention, but 4 perhaps this morning. There's new information out 5 there. We don't think we should look at it. We want 6 to continue with the way -- we want to continue with 7 the way we've presented it to the Staff here.
8 It is almost incomprehensible that Entergy 9 could continue to refuse and Staff supporting them, to 10 have the -- to do the best job possible here. And if 11 I could pick up on another point that's been made, 12 there's been repeated statements this morning, oh, 13 this is some type of attack on a regulation. It's not 14 in here. It doesn't say you have to use the straight-15 line Gaussian plume. It is something that NRC has 16 used elsewhere, but we're raising it as an issue here 17 in this specific context. Our expert has a great deal 18 of experience in doing air dispersion models, 19 identifies the large population areas, provides the 20 distance, Judge Lathrop. That model could well impact 21 those cities and towns that he identifies. And I come 22 back to the issue that it is their burden to do it 23 right and I would also call to the Board's attention, 24 the Statement of Considerations, when the Commission 25 promulgated, I believe it's part 2309 and it says NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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344 1 where the Intervenor believes the application and 2 supporting material do not address a relevant matter, 3 it will be sufficient for the Intervenor to explain 4 why the application is deficient. That's the 5 Statement of Consideration citing to 54 Fed. Reg.
6 33168 and the jumpsite is 33170.
7 We identify this in our reply at page 84.
8 That's our burden under 2309. It's their burden to do 9 it right.
10 And there is actually, I am reminded about 11 another point, in Pilgrim, first of all, at the 12 contention admissability stage, the contention was 13 admitted. Then Entergy went back and they reran their 14 SAMA analysis. They reran it with new assumptions, 15 different parameters, and they presented that rerun of 16 SAMA to the Board at the summary disposition stage and 17 at that stage the Board said well now that this has 18 been fully ventilated we don't think going forward in 19 a split decision that there necessarily needs to be an 20 evidentiary hearing on that.
21 That Pilgrim decision from October 2007 is 22 apples and oranges to where we are here. We're at a 23 completely different procedural juncture.
24 MR. O'NEILL: Your Honor?
25 CHAIRMAN McDADE: Mr. O'Neill.
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345 1 MR. O'NEILL: Just with respect to the 2 last point, we think that despite the different 3 procedural posture, the Board's statements are 4 directly apposite. I mean if you look at page 22, 5 footnote 22 of the slip opinion from Pilgrim, the 6 Board says we note that for a fact to be material with 7 regard to the SAMA analysis, it must be a fact which 8 can reasonably be expected to impact the Staff's 9 conclusions that any particular mitigation alternative 10 may or may not be cost effective. And they 11 specifically talk about an affidavit that Mr. Egan had 12 submitted to that very proceeding. And said Mr.
13 Egan's vague conclusory statement that the approach 14 used in MACCS2 modeling changing an uncertain 15 meteorological pattern has caused the Applicant to 16 drop -- emphasized -- incorrect cost benefit 17 conclusions. That fails entirely to address whether 18 the errors he suggests are present, would or even 19 could cause the results to be less conservative or in 20 fact, to be nonconservative.
21 We believe that's the burden of the 22 Petitioner here, that the State bears and the State 23 has not met.
24 MR. SIPOS: Judge, in that case they went 25 back and they did it all over again and that's what NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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346 1 the Board was responding to there. I believe Mr.
2 O'Neill, what he was describing is what possibly could 3 be the burden on the State if we were having an 4 evidentiary trial right in front of the Board at this 5 time. But we're in front of that. We're not at that 6 juncture yet.
7 JUDGE LATHROP: Correct me if I'm wrong, 8 but I don't believe they went back and did everything 9 again.
10 MR. SIPOS: You're correct.
11 JUDGE LATHROP: They went back and did the 12 NOAA evaluation scenario again. And that answered one 13 of the particular objections. They didn't do 14 everything again. Is that --
15 MR. SIPOS: I believe that's correct, Your 16 Honor.
17 MR. O'NEILL: We firmly believe this 18 principle applies here and it's very consistent with 19 what the Commission said in McGuire, COI217, that 20 there's got to be some showing of the relative cost 21 and benefit, but different SAMAs.
22 And I think that flows a lot from the 23 Statement of Considerations for part 51 which the 24 Commission said that the IPEEEs that were conducted by 25 licensees really constituted broad and robust searches NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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347 1 for potential plant enhancements and the Commission 2 said expressly that it believes it is unlikely that 3 any site-specific consideration of severe accident 4 mitigation alternatives for license renewal will 5 identify major plant design changes or modifications 6 that will prove to be cost beneficial. They're more 7 likely to be in the nature of procedural or 8 programmatic fixes or minor hardware changes.
9 And here there's just been absolutely no 10 suggestion as to what type of mitigation alternatives 11 might come into play here as a result of the alleged 12 deficiencies in the ATMOS model.
13 MR. SIPOS: That's shifting the burden.
14 And what he has said is standard to win at a hearing, 15 not a contention of admissability stage.
16 CHAIRMAN McDADE: Okay, I think we 17 understand the positions on Contention 16. Contention 18 17, the environmental report fails to include an 19 analysis of adverse impacts on offsite land use of 20 license renewal and erroneously concludes that 21 relicensing of Indian Point 2 and Indian Point 3 will 22 have a significant positive economic impact on the 23 communities surrounding the station and under 24 estimates the adverse impact of offsite land use.
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348 1 Staff indicates item number one is this a category one 2 or category two environmental issue and the Staff 3 represents that only tax revenue changes were intended 4 to be considered as category two issues, the rest 5 category one, and therefore outside the scope of the 6 proceeding.
7 Am I correctly understanding what the 8 Staff's position is?
9 MR. CHANDLER: Christopher Chandler for 10 the Staff, Your Honor.
11 I'd like to clarify that position a little 12 bit. That is mostly accurate. The GEIS and Reg.
13 Guide 4.2 discuss and actually Table B1 in the back of 14 part 51 discuss population-driven and tax-driven 15 changes in the license renewal term.
16 The GEIS determined that across the board, 17 population impacts would be small. Reg. Guide 4.2 18 explains that both of these issues are considered 19 category two issues in Table B1 of part 51, so they 20 are both category two. But until the table is 21 rewritten, the only thing that the Applicant needs to 22 consider in the environmental report is they need to 23 do an analysis of the tax-driven impacts and they need 24 to only cite back to the GEIS and its conclusion that 25 population impacts will be small. So there are, in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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349 1 fact, two category two issues, but there's only one of 2 which the staff expects an actual analysis because the 3 analysis of population impacts is done in the GEIs.
4 And the Applicant has done that here.
5 They have provided an analysis of tax-driven impacts 6 and they have cited the conclusion in the GEIS about 7 population.
8 JUDGE WARDWELL: Can you elaborate a 9 little bit more on why there's necessarily a 10 prohibition from evaluating the population or relative 11 impacts associated with that?
12 MR. CHANDLER: Well, Your Honor, I don't 13 know that I would characterize it as a prohibition 14 exactly, but certainly it is not required. It is 15 required that they -- as I said, it is required that 16 they refer back to the analysis done in the GEIS, but 17 they don't have to do their own independent analysis.
18 JUDGE WARDWELL: What are the land use 19 components that you have to evaluate when you prepare 20 your EIS, your SEIS?
21 MR. CHANDLER: One moment, if you please, 22 Your Honor.
23 (Pause.)
24 MR. CHANDLER: Your Honor, in the 25 Supplemental Environmental Impact Statement, the Staff NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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350 1 considers the same two major components, population 2 and tax-driven changes. The reason for that is when 3 the GEIS was drafted, those were the two major land 4 use issues that were found to have any sort of impact 5 in license renewal terms.
6 JUDGE WARDWELL: Turning to New York, do 7 you want to elaborate a little bit more on the 8 analysis of the adverse impacts of the offsite land 9 use that you feel needs further addressing? You see 10 how some people feel about the question.
11 (Laughter.)
12 MR. SIPOS: Yes, we'd be happy to address 13 that. The contention is not meant to be a challenge 14 to any regulations as some imply. In fact, it takes 15 the regulations as they exist and looking forward to 16 the license renewal or looking forward to 20.13 and 17 20.15, it asks that one of the adverse -- excuse me, 18 it asks that one of the impacts that be reviewed on 19 the positive side of the equation is the increase, the 20 significant increase in land value that will result 21 from a decision not to renew the license. And 22 although Staff may not require or not prefer the 23 Applicant to address it, it is clear that the 24 regulation provides for this and when Staff says well 25 --
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351 1 JUDGE WARDWELL: Where do you feel it 2 provides for that, just to fix that point?
3 MR. SIPOS: On Table B-1, and last year's 4 version it's on page 51 of the CFR, offsite land use 5 license renewal term. And it's significant changes in 6 land use may be associated and it continues on with 7 population and tax revenue changes resulting from 8 license renewal. But that's not all that -- that's 9 not all that can flow from that decision and it has 10 not been excluded by the regulation. It has not been 11 excluded by the Statement of Considerations and it is 12 a distinct impact, a positive impact, that should be 13 factored into the equation here. We have submitted a 14 declaration from an expert who suggests or offers his 15 opinion that there will be a significant increase in 16 value when -- if the decision is made not to renew the 17 license and the site is decontaminated and 18 decommissioned. It will have a very distinct positive 19 economic impact on the community, on the surrounding 20 community.
21 JUDGE WARDWELL: Did I understand you 22 correctly to say that it is not a direct requirement 23 of the regulation that that be addresses, it's more 24 what you are contending should be addressed to 25 complete the land use evaluation?
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352 1 MR. SIPOS: One moment, Your Honor.
2 (Pause.)
3 MR. SIPOS: Judge Wardwell, coming back to 4 this table B-1, the category or the issue is offsite 5 land use. And there is a description of population 6 and tax revenue, but it does not exclude changes in 7 property value. It is certainly not excluded and 8 because there is an impact on offsite land use, it is 9 fair, it may fairly be litigated here as part of a 10 contention, but more generally as part of the NEPA 11 analysis.
12 JUDGE WARDWELL: In regards to this stage, 13 are we now addressing what's in the ER?
14 MR. SIPOS: Yes.
15 JUDGE WARDWELL: And is that required to 16 be submitted by the regulations in the ER?
17 MR. SIPOS: The regulations require an ER 18 to be submitted and NEPA would or the NEPA regulations 19 do not preclude this. It is fair -- it is a fair 20 issue within NEPA. It's an impact that's going to 21 flow. The ER doesn't address it. We suggest that it 22 should.
23 JUDGE WARDWELL: Doesn't 51.53(c) outline 24 very specifically what's required in an ER?
25 MR. SIPOS: Just one moment, Your Honor.
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353 1 I'm sorry.
2 (Pause.)
3 CHAIRMAN McDADE: If I could interject 4 while you're thinking about that because I have a 5 related question to the Staff, I mean specifically 6 addressing 51.53(c)(3)(ii) and you start with the 7 premise that the economic, the ER, the Environmental 8 Report, needs to include the environmental impact of 9 the action. And it includes the environmental impact 10 of the action unless it is excluded as a category one 11 item which is handled generically. If it hasn't been 12 handled as a category one, then it is open for 13 litigation in the course of this proceeding. If we go 14 to the Appendix B to Part 51 as specifically counsel 15 referred us to -- what was the page you referred us to 16 earlier?
17 MR. SIPOS: Page 51 of last year's 18 version, the brown cover.
19 CHAIRMAN McDADE: Okay, 51, and 20 specifically, it refers to offsite land use license 21 renewal term and it has that as a category two item 22 which generally speaking would indicate that it would 23 be not excluded. It is an environmental impact. It 24 is not a category one. It would not be excluded.
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354 1 explain to me how you have limited this to only the 2 tax revenue changes here because I'm having a 3 difficult time sort of following from the regulation, 4 from the appendix, to the limitation that you're 5 putting on it.
6 (Pause.)
7 MR. SIPOS: Your Honor, in answer to your 8 question, the requirements that the Applicant can look 9 at, population and tax-driven changes, are sort of 10 focused, as I said, I think I said earlier, it's 11 driven by what was performed in connection with the 12 Generic Environmental Impact Statement and is also 13 spelled out in the Reg. Guide. And the Staff 14 discussed in considering these issues when creating 15 the GEIS that those were the two main issues that 16 would likely cause any sort of significant impact.
17 And that's why there is sort of a -- it's not 18 necessarily a limitation exactly, but it's designed to 19 focus the Applicant's environmental report to these 20 things which we consider to be the major impacts.
21 CHAIRMAN McDADE: Okay, but as far as the 22 applicability of the generic environmental impacts, 23 here New York is saying we have an extremely unique 24 situation. This is not Grand Gulf, Mississippi. This 25 is not one of a hundred other nuclear plants in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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355 1 United States. This is the situation where we have 2 presented evidence that if the license renewal were 3 denied, that I think the evidence they presented was 4 that the property value within two miles would 5 increase by in excess of $500 million and that that is 6 unique to this particular site and that should be 7 taken into consideration in the environmental report.
8 MR. CHANDLER: I think the difficulty, 9 Your Honor, the problem with that argument is that 10 what -- essentially what they're arguing is that we --
11 not we, the Applicant in the environmental report 12 should consider what is basically the no action 13 alternative. Section 51.53(c)(3) discusses mitigating 14 alternatives. If you're considering the impact of not 15 renewing the license, that is basically the no action 16 alternative, that's considered elsewhere in the 17 environmental report and it's not considered in 18 conjunction with this offsite land use requirement.
19 It's an entirely separate section of the environmental 20 report.
21 CHAIRMAN McDADE: Why is it not equally 22 applicable here? I mean what they're saying is -- and 23 generally speaking if they close down a plant, the way 24 the Agency looks at it and the way licensees generally 25 look at it, it's going to have an adverse effect on NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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356 1 surrounding land values. It's going to have an 2 adverse effect on surrounding tax revenues that in 3 many instances and I mention some where almost all of 4 the taxes in the county are directly traceable to the 5 nuclear plant within that particular county.
6 Here, they're saying it's the opposite, 7 that if the plant were to close down, that yes, this 8 is a multi-billion dollar plant, but if the plant were 9 to close down, there would not be a decrease in land 10 values, there would be an increase in land values and 11 that based on that we should at least have a hearing 12 as to the economic impact of that no action 13 alternative, that alternative of not renewing the 14 license, that that's something that needs to be, based 15 on what they have presented through their expert, 16 further understood, further explored, and taken into 17 consideration in making that decision whether or not 18 to do a license renewal that specifically it needs to 19 be in their environmental report so that it can then 20 be taken into consideration in the Agency's 21 Environmental Impact Statement.
22 What's the fallacy of that argument?
23 MR. CHANDLER: One moment, please, Your 24 Honor.
25 (Pause.)
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357 1 MR. CHANDLER: Thank you, Your Honor.
2 There are a couple of points I'd like to make. First 3 of all, there's an inherent fallacy in trying to 4 assert the no action alternative as a mitigating 5 alternative. For one thing, when you're talking about 6 a mitigating alternative, you're assuming that you are 7 going to take some action and then do something in 8 order to mitigate that action.
9 The no action alternative is the exact 10 opposite of that and so it doesn't mitigate -- it 11 doesn't mitigate the actions so much as it does not 12 perform the action and if we were to say the Applicant 13 should consider denial of the extended operating 14 license as a mitigating alternative here, there would 15 be no reason for them to not do that and with every 16 other category two issue in Table B-1 they could say 17 well, the mitigating alternative would be to just do 18 nothing and that would completely undercut the purpose 19 of having an environmental report. They would never 20 consider any sort of meaningful mitigating 21 alternatives. They would just say either do it or 22 don't do it.
23 The other point I would like to make, Your 24 Honor, is that --
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358 1 the environmental report and again, maybe I'm not 2 making myself clear and I'm just trying to clarify in 3 my own mind. What they're saying as I understand it 4 is just that the environmental report is inadequate 5 because it does not take into consideration the 6 increase in land values that would occur if the 7 license renewal were not to occur, and that because 8 the environmental report is inadequate, the Agency has 9 to make a decision.
10 The Agency action here is to grant or deny 11 the license renewal and doing that the Agency has to 12 take a look at the environmental impact and discuss 13 that in its Environmental Impact Statement. It can 14 only do that based on the environmental report that's 15 submitted by the Applicant and this is a significant 16 factor as to the environmental impact of that 17 alternative that isn't taken into consideration. All 18 they're saying at this point in time is that it should 19 have been addressed in the environmental report and it 20 wasn't and it's not expressly excluded as a category 21 one item, ergo, the environmental report is deficient.
22 And so I'm just looking from the Staff's 23 standpoint to explain to me in your papers you have 24 said we don't look at it that broadly. We're looking 25 only at the tax revenue implications of this and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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359 1 arguably this does have tax revenue implications 2 because if the value of the land is going to go up by 3 hundreds of millions of dollars, generally speaking, 4 the tax revenues go down because the value of the land 5 goes down.
6 Here, the tax revenues go up, but why 7 shouldn't this just be considered in the environmental 8 report so that the Agency can then take it into 9 consideration in preparing its Environmental Impact 10 Statement?
11 MR. CHANDLER: Well, for one thing, Your 12 Honor, the tax revenue impacts that are ordinarily 13 considered are the tax revenues generated by the plant 14 itself and the revenues that the plant operator pays 15 into the coffers of the local government. It's not 16 local property values. It literally is the land that 17 the plant itself is on.
18 CHAIRMAN McDADE: I understand, but why is 19 it so limited? Doesn't it make sense to include all 20 of the tax implications?
21 And I understand generally speaking where 22 nuclear plants are sited, the significant tax impact 23 is the tax impact that the plant pays. And in many 24 instances that has a very significant impact on the 25 local economy. But here, they're saying that there's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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360 1 two sides to the coin and that there's money to be had 2 tax revenues based on the increase in land value and 3 this is unique, what they're saying as far as any 4 other license renewal to this point, this is unique.
5 There is no nuclear plant which has land 6 values within two miles surrounding it that anywhere 7 approaches that of land values in Westchester County, 8 around Indian Point. This is unique. It should be 9 discussed.
10 Why shouldn't it? What in the regulation 11 excludes it?
12 MR. CHANDLER: Nothing in the regulation 13 excludes it, Your Honor.
14 CHAIRMAN McDADE: Okay.
15 MR. SUTTON: Nothing in the regulation 16 requires it and we believe consistent with NEPA we've 17 had a reasonable approach to this. We've adhered to 18 the GEIS and the regulatory guidance which does not 19 require one to look at this.
20 In addition, the proposed federal action 21 here is continued operation and one would expect as 22 you're looking at property values at a continued term 23 you don't see an impact. I can only speculate as to 24 why the NRC regulations are as they are in their 25 guidance, but it seems to me there isn't necessarily NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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361 1 a decrease in property value from the point of current 2 ops to continued ops where you would look for a 3 decrease in property values (a) in conjunction with 4 the no action alternative; or (b) ultimately 5 decommissioning.
6 MR. SIPOS: Your Honor, if I may respond 7 briefly?
8 As a general matter, backing up a step, 9 Ms. Sutton says that the major federal action here is 10 the renewal of a license. That may or may not be, but 11 we're talking about the impacts -- we're talking about 12 analyzing this under no action alternative, and the no 13 action alternative is the decision not to renew the 14 license and NEPA requires that the impacts of the no 15 action alternative to be reviewed. And it should not 16 be a situation where only the disadvantages are looked 17 at from a license denial decision, but that there also 18 are some advantages.
19 Second point, Entergy raised this issue in 20 its environmental report right there. That is grounds 21 for us to raise a contention. They opened the door.
22 We are seeking to litigate it.
23 Third, Judge Wardwell, I apologize. I was 24 unable to answer your question when you posed it.
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362 1 suggest went perhaps to providing an answer, but if it 2 hasn't, 51.53(c)(3)(i) operates that unless the item 3 is excluded that it is -- it may be considered and we 4 submit that is the regulatory vehicle to bring it in.
5 And finally, and perhaps most specifically 6 to respond to a number of comments that have been made 7 and questions from the Board, there was a statement 8 earlier that the GEIS determined that this was -- did 9 not need to be addressed. And that is an inaccurate 10 statement.
11 The GEIS did not exclude this issue and 12 moreover, I would refer the Board to the GEIS at 13 Section 4.7.4.2, the conclusion and there are several 14 sentences there.
15 JUDGE WARDWELL: Is this the new reg. of 16 the GEIS specifically you're quoting or where are you 17 getting this from? What's this 4 point --
18 MR. SIPOS: I believe it is. The new reg.
19 of the GEIS, Section 4.7.4.2 conclusion. It does 20 discuss population and tax impacts, but then it 21 continues on and it says "because land use changes may 22 be perceived by some community members as adverse, and 23 by others as beneficial, the Staff is unable to assess 24 generically, the potential significance of site-25 specific, offsite land use impacts." This is a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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363 1 category two issue that's beyond the population, 2 that's beyond the tax impacts. It's clearly squarely 3 something that we can litigate, given the unique facts 4 of this case.
5 JUDGE WARDWELL: Turning to the Staff, 6 will you evaluate the changes in property values as 7 part of the no action alternative?
8 (Pause.)
9 MR. CHANDLER: Your Honor, we're actually 10 not sure yet if we will consider that in the 11 Supplemental Environmental Impact Statement.
12 JUDGE WARDWELL: What determines whether 13 or not you will consider it or not?
14 And to clarify that while you're chatting 15 to see if you can listen in to something different out 16 of each ear, to me you're going to consider -- you 17 could consider it and then rule it's insignificant 18 here in regards to the changes in land use values, but 19 it seems to me that you ought to know now whether or 20 not you're even going to address that or not. It's 21 either a threshold thing that comes in and something 22 you do at each case or you don't.
23 It seems to me it was a generic question, 24 really.
25 (Pause.)
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364 1 JUDGE WARDWELL: I'm going to withdraw my 2 question. No seriously. I didn't mean that as a 3 joke. I'd like to withdraw it and move on because I 4 think I've got an indication I needed out of that.
5 It's taken way too long in these technical discussions 6 over all, in my opinion. It's fine to allow a little 7 bit of time. We're talking, we're trying not to get 8 into technical details here in my opinion and to have 9 this much time spent in this tells me the answer I 10 think I want to know. So we'll move on.
11 MR. TURK: Your Honor, if I may just 12 respond briefly? The reason for the discussion is 13 we're considering the extent to which we would 14 determine this to be necessary in this case. Really, 15 the analysis comes down to the -- the Staff's analysis 16 comes down to what is the reasonableness of what the 17 Applicant presented in its ER and do we believe that 18 that meets more and we have not reached that --
19 JUDGE WARDWELL: I hadn't gotten to that 20 stage. That wasn't my question. My question was do 21 you -- will you consider land use impacts in your no 22 action alternative for your SEIS and that's where I 23 was going to go --
24 MR. TURK: The answer is yes, and --
25 JUDGE WARDWELL: That's all I needed.
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365 1 MR. TURK: And it was considered by the 2 Applicant in the ER. In their no action alternative 3 they discuss land use impacts, but they address the 4 positive effect of the tax benefits of operation and 5 I do not see in my brief perusal of this section of 6 the environmental report a discussion of the 7 countervailing tax benefit that might be caused by 8 nonoperation of the plant and a rise in values.
9 I would note, however, that the present of 10 the contention is that the site will be decommissioned 11 and available for unrestricted use by the year 2025 12 and I think that's a tremendous stretch and it would 13 be contrary to anything that has ever happened in the 14 past.
15 So the premise for the contention, 16 suddenly you've got this great clearing of the land of 17 all potential radioactive hazard is -- has no basis.
18 JUDGE WARDWELL: Regardless, I would 19 appreciate it if you try to limit the answer to the 20 question that is asked, at least when I'm asking so 21 that -- I may have a train of thought of where I'm 22 going with it and that was way beyond where I was 23 going with it and it consumed too much time in this 24 hearing.
25 MR. TURK: I apologize, Your Honor.
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366 1 CHAIRMAN McDADE: Anything further with 2 Contention 17?
3 Okay, if we can perhaps move on to 4 Contention 18 and sort of grouping Contentions 18 5 through 22 are I believe sort of safety-based and 6 analogous to environmental-based Contention 2, 3, 13, 7 14, and 15.
8 Contention 18, that the license renewal 9 application fails to comply with the requirements of 10 50.71(e) because information from the safety analysis 11 and evaluations performed at the NRC's request are not 12 identified or included in the UFSAR.
13 Why isn't this part of the CLB and outside 14 the scope of the proceeding?
15 MR. SIPOS: For the reasons we discussed 16 yesterday, the UFSAR as Staff and as the NRC has 17 acknowledged, is a vital part of the CLB, but as Mr.
18 Lochbaum identified in his declaration, there are 19 significant gaps in the UFSAR which lead to the CLB 20 being unascertainable and because of that the 21 prohibition, I believe it's in 54.30, would not apply.
22 We're not seeking to challenge the CLB. We're saying 23 it's unascertainable and therefore these safety 24 contentions and Judge McDade, you are right to group 25 them and you're right about their antecedents in your NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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367 1 description, these safety contentions can come into 2 play.
3 CHAIRMAN McDADE: But specifically, you're 4 saying that because those safety evaluations have not 5 been made part of the updated safety evaluation 6 report, that you have no way of properly assessing 7 whether the aging management plans are adequate?
8 MR. SIPOS: Yes. But these contentions 9 are safety-related whereas the previous ones, the ones 10 we discussed yesterday were discussing ascertaining 11 and the contours of the CLB and how one would go about 12 determining whether an AMR was done correctly. Now 13 we're moving beyond that, we're taking that predicate 14 and we're moving them here from 18 to 22.
15 JUDGE WARDWELL: Say that again? I mean 16 that confused me, because 2 and 3 are definitely 17 safety issues, aren't they? Certainly 4 is a NEPA --2 18 and 3 are safety issues, so that is not merely going 19 from NEPA issues to safety issues. We're going from 20 one type of safety issue to another type.
21 MR. SIPOS: I used safety imprecisely 22 there. I'm sorry, Your Honor. Two and three are 23 safety contentions, but these are safety contentions 24 that we believe -- 18 to 22, I think as we put forth 25 in our petition, there could be a bar, but for the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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368 1 fact that we're seeing the CLB is not ascertainable.
2 And then we can bring these five contentions in.
3 54.30 would bar us from raising a 4 contention that someone is not in compliance with 5 their CLB. We're saying because there is no readily 6 ascertainable CLB that bar in 54.30 allows us to raise 7 these contentions because that bar is not applicable 8 and then -- we're saying that they're not in 9 compliance with the regulations we cite here in the 10 contentions. And the regulations we cite in the 11 contentions in the bold text are different provisions 12 from what we cited -- we may have cited earlier in 13 other contentions.
14 CHAIRMAN McDADE: And again, I don't want 15 to plow a lot of ground that we plowed yesterday.
16 Lord knows we spent enough time plowing it. Am I 17 correct that with regard to these, the position of 18 Entergy is our CLB is ascertainable. You explained 19 yesterday where to go find it, what goes into it based 20 on the definition in the regulation. The NRC staff 21 indicated that those documents are docketed. Those 22 documents that are docketed are what constitutes the 23 CLB. Since it is ascertainable, this is an attack on 24 the CLB. That attack on the CLB is precluded by 54.30 25 and basically, the same arguments as we addressed NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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369 1 yesterday.
2 Is there anything further that we need to 3 address? I mean specifically, let me ask of New York, 4 are there any specific safety analysis and evaluations 5 that you want to bring to our attention today that you 6 say are not ascertainable, or have not been docketed?
7 We know they exist. They have not been docketed, 8 therefore they are not part of an ascertainable CLB?
9 MR. SIPOS: Mr. Lochbaum's declaration in 10 the accompanying chart lists a number of such issues.
11 I won't repeat them here in the interest of time, but 12 it provides great specificity.
13 One point, to follow up on a comment 14 Entergy made yesterday, they said well, look at the 15 general design criteria regarding GDC 19. They 16 provided the citations. We went and looked at it 17 yesterday afternoon for Unit 2. And the text is quite 18 telling. There's two different versions of GDC 19 and 19 they say different things and they appear to be 20 substantively different. It further underscores New 21 York's concerns which we discussed yesterday regarding 22 which GDC is it?
23 (Pause.)
24 Your Honor, just perhaps in summary, we're 25 saying there is no CLB and because there's no CLB, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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370 1 54.30 doesn't apply. We get to raise these five 2 contentions which challenge the failure to comply with 3 NRC regulations and 54.35 requires compliance.
4 (Pause.)
5 JUDGE WARDWELL: Why haven't you already 6 said this in 2 and 3? Why isn't this a repeat on an 7 elaboration of what was already covered in 2 and 3 and 8 merely just additional bases disguised as individual 9 contentions?
10 Time's up. I do apologize if I was a 11 little curt to you, Mr. Turk, but I had reached my 12 limit.
13 CHAIRMAN McDADE: Start with the premise 14 that old people get crotchety towards lunch time.
15 (Laughter.)
16 JUDGE WARDWELL: Notice I didn't deny 17 that, any of those components.
18 MR. SIPOS: The underlying facts are the 19 same, but the implications are different. Two and 20 three were raising questions about would these 21 deficiencies that we identify, how can we be sure that 22 a proper AMR, Aging Management Review, is done and 23 what are the implications for that? We believe that's 24 straightforward generic.
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371 1 predicates to be sure, however, the implications are 2 different and 54.35 says there must be compliance with 3 all regulations and we are saying if there is no CLB, 4 no readily ascertainable CLB, we get to now raise 5 these contentions as well here because the bar of 6 54.30 which we acknowledge would ordinarily apply does 7 not apply here. Same facts, different implications.
8 JUDGE WARDWELL: Thank you.
9 CHAIRMAN McDADE: Moving forward to New 10 York Contention 23 which indicates that the license 11 renewal application fails to comply with the 12 regulations because the Applicant has not proposed 13 comprehensive baseline inspections to support its 14 relicensing application and proposed 20-year life 15 extension.
16 Where do we look to determine that they 17 need to do a comprehensive baseline inspection?
18 MR. SIPOS: Ms. Matthews will be 19 responding.
20 MS. MATTHEWS: I don't have a microphone 21 right here, but I'll do my best and I think you will 22 be able to hear me.
23 Joan Leary Matthews.
24 CHAIRMAN McDADE: Can the audience hear?
25 Would it be possible for you to just move up to the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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372 1 desk?
2 MS. MATTHEWS: Sure.
3 (Pause.)
4 MS. MATTHEWS: Your Honor, I'm being 5 requested if we can make this move after lunch?
6 MR. SIPOS: To save some time.
7 CHAIRMAN McDADE: Well, I mean it's not 8 that far to move.
9 MR. SIPOS: No, but it's a lot of stuff.
10 MS. MATTHEWS: Do you want to break now 11 and we'll come back earlier?
12 CHAIRMAN McDADE: Not really.
13 MS. MATTHEWS: Okay, I'll do whatever you 14 want.
15 CHAIRMAN McDADE: Do you need to schlep a 16 lot of stuff up there or don't you already know it?
17 (Laughter.)
18 MS. MATTHEWS: I think it was a matter of 19 clearing out first.
20 CHAIRMAN McDADE: Everybody is abandoning 21 you. They don't want to sit with you.
22 MR. SIPOS: No, we want everyone to hear 23 her.
24 CHAIRMAN McDADE: You just want to get 25 away from us, I know.
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373 1 MS. MATTHEWS: Your Honor, I think your 2 question was what is the requirement --
3 CHAIRMAN McDADE: We want to find the 4 requirement that they do this kind of baseline 5 inspection.
6 MS. MATTHEWS: Well, it's really a basic 7 engineering 101 requirement. We know that under the 8 regulations they are supposed to identify those 9 systems, structure, and components that fall within 10 the scope of 54.21(a) and therefore is subject to 11 aging management review.
12 So the baseline inspection will provide a 13 -- and there is a need for a more extensive 14 characterization of the plant to begin with. So that 15 you have this baseline against which you can compare 16 the performance of the plant 20 years into the future.
17 So it really is a basic engineering 18 principle --
19 CHAIRMAN McDADE: Putting aside 20 engineering 101 and putting it in context, what you're 21 saying is 54.21 requires an integrated plant 22 assessment and that this baseline is integral to the 23 integrated plant assessment that's required by 54.21?
24 MS. MATTHEWS: Precisely.
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374 1 the role of your baseline inspections that you're 2 talking about?
3 MS. MATTHEWS: Our expert, Dr. Richard 4 Leahy from RPI had looked at that and had determined 5 that it was lacking and he identified specific parts 6 of it. And as I understand Entergy's response, they 7 are saying that while we have all of these inspection 8 requirements, we have submitted extensive information.
9 But they never came back and disputed the type of more 10 extensive characterization of the plant and the 11 specifics that Dr. Leahy had provided in his 12 declaration in which we incorporated into the 13 contention.
14 JUDGE WARDWELL: Turning to Entergy, why 15 isn't it reasonable to require or perform more 16 extensive baseline inspections as part of the IPA in 17 order to provide that baseline that's really needed to 18 track AMP during the license renewal period?
19 MR. O'NEILL: Your Honor, it's simply not 20 required by the regulations. Our view is that we've 21 complied with Part 54 and the relevant guidance in 22 terms of preparing our IPA. It's discussed or 23 described in Section 2 of the LRA. We did the 24 necessary scoping and screening processes that are 25 called for by the regulations and as far as we're NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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375 1 concerned this is just a flat out challenge to what's 2 required by the regulations.
3 JUDGE WARDWELL: Are those regulations 4 specific enough such that the differences between what 5 they're suggesting, what New York is suggesting and 6 what you performed are clear that it's beyond what's 7 necessary to actually track any aging management 8 associated with the real period?
9 I'm asking are the regulations and I 10 assume it's not specific in the regulations, but 11 you're also using reg. guides or some other documents 12 that you use for guidance to indicate how you're going 13 to approach your IPA and how you had implemented your 14 IPA and whether or not there's enough specificity in 15 those that it's clear that what they're suggesting 16 would never fall within the realms of that suggested 17 by the guidance that you used in doing your IPA?
18 MR. SUTTON: Well, Your Honor, we have 19 used the regulation, not just the guidance in 20 performing our scoping and screening for purposes of 21 the IPA in fully complying with those regulations, we 22 believe our scoping and screening methodology is 23 robust and complete. It's fully described in the 24 application. And if New York disagrees with the 25 nature of the scoping and screening process, then it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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376 1 has to proceed through a rulemaking process to change 2 those rules. We are in full compliance with the 3 rules.
4 JUDGE WARDWELL: And are you suggesting 5 that the differences that Leahy has presented in the 6 declarations are in direct conflict with those rules?
7 MR. SUTTON: Yes, Your Honor.
8 JUDGE WARDWELL: And did you point that 9 out in your answer?
10 MR. O'NEILL: I believe we did, Your 11 Honor.
12 MR. SUTTON: One second.
13 (Pause.)
14 MR. O'NEILL: Well, Your Honor, on pages 15 127 to 128 of our answer, I mean we specifically 16 stated that the requests that Petitioner is making in 17 terms of inspections go beyond what's set forth in the 18 regulations and that certain encompasses what was said 19 by their expert here.
20 JUDGE WARDWELL: Could one not say that's 21 a pretty general statement though that doesn't really 22 address the items that they have raised, but matter --
23 a conclusory statement on your part in regards to 24 addressing what they had brought up specifically -- as 25 I understand was specifically presented in the Leahy NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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377 1 declaration?
2 MR. O'NEILL: You know, again, Your Honor, 3 I'd have to go back to the fact that part 54 calls for 4 scoping components to determine which ones are within 5 license renewal and screening to determine which ones 6 are subject to aging management.
7 As Ms. Sutton pointed out, that process is 8 described wholly in the application and we submit that 9 it's compliant with the current NRC requirements.
10 JUDGE WARDWELL: Thank you.
11 MR. SUTTON: Yes, Your Honor, there are --
12 on page 126 of our answer, there are instances in 13 which we are citing to the Leahy declaration, 14 particular paragraphs therein as to why we believe 15 that Petitioner's claims are unfounded.
16 JUDGE WARDWELL: Thank you.
17 CHAIRMAN McDADE: Let me go to New York.
18 We start off with the regulation itself which is 19 54.21. That regulation specifically has a requirement 20 for an integrated plant assessment and it then goes on 21 and explains in the regulation what an integrated 22 plant assessment consists of.
23 Can you give us some examples specifically 24 of where in your view the integrated plant assessment, 25 as described in 54.21, is deficient?
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378 1 MS. MATTHEWS: Yes. In Dr. Leahy's 2 declaration in paragraph 24, and we're pulling that up 3 now. He provides those kinds of specifics. He says 4 that, what he's suggesting for the inspections, visual 5 and physical characterization and non-destructive 6 testing, the NDT of structures and components, 7 including the RPV, RPV heads and fittings, control rod 8 drive mechanisms, and associated RPV penetrations, 9 most RPV internal hardware, and all key welds and 10 fittings in the primary and secondary systems of the 11 reactors. I think I'm answering your question.
12 CHAIRMAN McDADE: Well, he is saying, as 13 I understand it, that he thinks that that would be 14 advisable. But specifically my question is Entergy 15 has described what they have done in their IPA. And 16 one could argue, and I think Entergy has argued that 17 Dr. Leahy has expressed his opinion, and he has 18 expressed his opinion that these kinds of inspections 19 would better inform the IPA. However, what Entergy is 20 saying is that at nowhere does Dr. Leahy demonstrate 21 that what they have done is inadequate under the 22 express language of the regulation, that it well may 23 be advisable in Dr. Leahy's opinion, it might be a 24 better way of going, but that the scoping and 25 screening that they have done complies with the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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379 1 regulation.
2 As a result, their IPA is adequate under 3 54.21 and what I'm looking for is something in the 4 Leahy declaration that you could point to that 5 specifically says one or more aspects of the IPA are 6 in fact inadequate.
7 MS. MATTHEWS: Okay, there is a lot there.
8 If I could break it down just a bit. First, if I 9 could address Entergy's approach to what they have 10 done and what the regs do or do not require and then 11 move into what Dr. Leahy said.
12 What Entergy is saying is that they have 13 just described for you now, today, and in their papers 14 before today, an approach that they have taken to 15 constructing the IPA. And then they have said that 16 they have filed the guidance, and the guidance is just 17 guidance. That's just what it is. It's an opinion 18 just as Dr. Leahy is offering an opinion. The 19 regulations do not spell out in great detail what kind 20 of an IPA that they are required to do. It is, it 21 really comes down to a dispute between the experts.
22 Now if I could go into what Dr. Leahy's 23 position is, and why that is so important, and I don't 24 mean to be flippant when I say that it is engineering 25 101. But his position is that you need to have a more NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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380 1 extensive characterization of the plant so that you 2 can measure the performance of the extended plant 3 operations over time. And if you don't know what 4 you're dealing with right now, and he provides a clear 5 road map for how to figure out what you're dealing 6 with now, then you won't know what you got as you're 7 going down that 20-year road.
8 So I think I'm answering your question, 9 Your Honor? And also in his paragraphs 25 and 26 of 10 his declaration, that's discussed in more detail.
11 (Pause.)
12 CHAIRMAN McDADE: I certainly understand 13 the theory, and I guess I'm just looking for some more 14 help in understanding the Leahy declaration. I mean, 15 the theory is that without the kind of an audit, 16 without the kind of investigation that Dr. Leahy 17 suggests, it is impossible to properly inform oneself 18 as to the identity of the structures and components 19 subject to aging management and what the aging 20 management plan for those structures should be over 21 the next 20 years.
22 But understanding that as a premise and as 23 an argument, what I am looking for are if you could 24 just address me to the specific statements, the 25 specific facts that Dr. Leahy puts forward that you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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381 1 believe support that conclusion that demonstrate that 2 the IPA, as submitted in the license application, is 3 inadequate.
4 MS. MATTHEWS: Again, Your Honor, 5 paragraphs 24, 25, and 26 help to inform the 6 discussion here. The real answer is whose burden is 7 it to devise and divine and submit an inspection 8 program, and that's Entergy's burden. Our expect has 9 reviewed that inspection program and said it is 10 insufficient right now to provide the backstop, or the 11 baseline, to which we can measure performance in the 12 future. I don't mean to keep repeating myself, but 13 that's really what it is.
14 And those kinds of details, you know, once 15 we determine that it is deficient right now, if it is 16 a dispute between the experts, and by the way, Entergy 17 didn't have much to say about Dr. Leahy. They have 18 one paragraph on pages 126 of their answer, just 19 deriding him and attacking him personally. They 20 didn't say anything about the specifics that he had 21 raised.
22 But as far as those specifics and moving 23 forward, we have a dispute between the experts now and 24 then we're headed into a hearing if this Board accepts 25 this as a contention. That's really what it comes NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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382 1 down to is dispute between experts.
2 CHAIRMAN McDADE: But isn't there an 3 additional step? There's nowhere in the regulations 4 that in hoc verba requires the kind of inspection you 5 suggest. The regulation requires an integrated plant 6 assessment. Entergy has provided an integrated plant 7 assessment. Entergy is saying, based on the 8 regulation and based on NRC case law that the burden 9 is on the intervenor, initially, to demonstrate a 10 deficiency with the integrated plant assessments.
11 Specifically, where it is deficient and then what the 12 basis is that you have generally said that it can't be 13 sufficient because there's inadequate underlying 14 inspection, investigation, which is necessary to put 15 it together.
16 What I guess I'm looking for you to do is 17 to tell me something other than just go to the Leahy 18 declaration, it's there, but to give me some examples 19 of some of the concrete things in the Leahy 20 declaration that you think is not only suggesting a 21 better way of doing it, a better investigation, 22 inspection, create a better baseline, but to 23 demonstrate that a specific portion of the IPA that 24 they have submitted is deficient within the meaning of 25 the regulation, within the meaning of 54.21.
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383 1 MS. MATTHEWS: Yes, and I would say two 2 parts, two answers to your question, Your Honor.
3 Number one, the regulations do not define the 4 boundaries of that inspection either. Okay, it's not 5 a checklist where it clearly defines the boundaries of 6 it. And so Dr. Leahy looked at what Entergy had 7 prepared and submitted and said it is insufficient.
8 And for example, they had not done a thorough visual 9 and physical characterization of, and what I had read 10 before, of the nondestructive testing of at least the 11 RPV, etcetera. And a whole litany, a whole list of 12 areas that he found to be deficient to which Entergy 13 never responded, never responded.
14 And in paragraph 25, Dr. Leahy explains 15 the significance of not having what he describes in 16 paragraph 24. So we connect the two.
17 CHAIRMAN McDADE: Okay, anything further 18 from Entergy on this?
19 MR. SUTTON: No, Your Honor, just that 20 counsel for the State makes it clear that there is "a 21 dispute between the experts". There is no dispute 22 between the experts. There is a dispute Dr. Leahy and 23 the NRC regulations and that's what is clear in our 24 answer.
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384 1 regard to New York Contention -- I'm sorry, Mr. Turk.
2 MR. TURK: I'm not interrupting, I was 3 waiting for you to conclude.
4 CHAIRMAN McDADE: I thought you had a 5 question. Do you have something to comment on 6 Contention 23?
7 MR. TURK: No.
8 CHAIRMAN McDADE: Okay, what I was going 9 to do is suggest that we break for lunch. Did you 10 have something before we break for lunch?
11 MR. TURK: I had two housekeeping matters 12 before we broke for lunch that I wanted to address.
13 CHAIRMAN McDADE: Okay.
14 MR. TURK: First of all, it appears that 15 you passed Contention 22, which is fine because I 16 don't see a need to argue it. I would just point out 17 that there is an error on page 71 of our response to 18 the State. There is something appears to be quotation 19 from the Commission, statement of consideration that 20 actually should be a paraphrase. I just didn't want 21 you to rely on that.
22 CHAIRMAN McDADE: Okay, this is the other 23 than with respect to language?
24 MR. TURK: Yes, sir. I can get you the 25 exact language. It is a quotation on page 71, in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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385 1 first full paragraph --
2 CHAIRMAN McDADE: You've indicated that it 3 is part of the Statement of Consideration, the 4 Commission stated other than with respect to aging 5 issues and issues that arise when significant new 6 information becomes available, the NRC does not 7 inquire into safety issues in the license renewal 8 process, but presumes that the current regulatory 9 process is adequate. You're saying they didn't say 10 that directly, that's a paraphrase.
11 MR. TURK: That's a paraphrase by someone 12 who is writing this answer and it is actually slightly 13 incorrect. The Statement of Considerations speaks for 14 itself.
15 CHAIRMAN McDADE: Okay.
16 MR. TURK: And the second matter I would 17 note is the Board had directed us to advise whether or 18 not we are available for April 1st for arguments on 19 WestCAN's petition?
20 CHAIRMAN McDADE: Yes.
21 MR. TURK: And I believe you asked us to 22 do that by 5 p.m. yesterday, so unfortunately I didn't 23 think of doing that when we concluded yesterday.
24 CHAIRMAN McDADE: Neither did we.
25 MR. TURK: But the Staff is available.
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386 1 CHAIRMAN McDADE: Okay, thank you. What 2 about Entergy?
3 MR. BESSETTE: Entergy is available also, 4 Your Honor.
5 CHAIRMAN McDADE: Okay, and we have not 6 heard anything back on that that we're aware of from 7 the intervener there. It's 12:35 now. Should we come 8 back at 1:35 from lunch and take up where we left off?
9 (Whereupon, at 12:35 p.m., proceedings 10 werer recessed, to reconvene at 1:35 p.m.)
11 CHAIRMAN McDADE: We will start with New 12 York contention number 24, "The license renewal 13 application fails to comply with the regulations 14 because the applicant has not certified the integrity 15 of the containment structures and has not committed to 16 an adequate aging management program to ensure the 17 continued integrity of the containment structures 18 during the proposed life extension."
19 New York indicates that NUREG 1801 20 requires enhanced inspection because the 21 water/concrete ratio exceeds the ratio set by NRC.
22 And this inspection is necessary in order to manage 23 aging. Specifically where in 1801 do you refer us?
24 MS. MATTHEWS: We'll try to get that 25 specific reference for you, Your Honor.
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387 1 CHAIRMAN McDADE: Okay. Let's start from 2 the standpoint of the NRC staff. Do you consider that 3 the water/cement ratio here is a problem? If not, why 4 not?
5 MR. ROTH: No, Your Honor, we do not 6 consider it to be a problem. Look, as we are reading 7 part of the contention, they are alleging that the 8 current water to concrete ratio was unacceptable. And 9 the NRC should exercise regulatory discretion and take 10 some action now.
11 That is clearly a current licensing issue, 12 not a license renewal issue. And with regards to 13 their statement that the NUREG supports this expanded 14 inspection, that is simply not in the NUREG.
15 CHAIRMAN McDADE: Okay. Is there anything 16 in 1801 that you're aware of that would suggest that 17 enhanced inspection is necessary under these 18 circumstances in order to support an aging management 19 plan?
20 MR. ROTH: For the containment? No, Your 21 Honor.
22 CHAIRMAN McDADE: Okay. Is that 23 consistent with Entergy's position?
24 MR. O'NEILL: Yes, Your Honor.
25 MS. MATTHEWS: Your Honor?
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388 1 CHAIRMAN McDADE: Yes?
2 MS. MATTHEWS: We're not saying, of 3 course, that they need to rebuild the domes. We're 4 just saying that if this plant were built today, it 5 would be built to a different construction standard.
6 And since it is not, then it needs an additional look 7 over the extended licensing period.
8 That's the basis of our contention.
9 That's what our contention is all about.
10 CHAIRMAN McDADE: Okay. But the 11 containment structure is subject to an aging 12 management plan, is it not?
13 MS. MATTHEWS: Yes, it is.
14 CHAIRMAN McDADE: Okay. And what 15 specifically do you indicate is not adequate about it?
16 **MS. MATTHEWS: Well, in the contention, we are 17 asking for an enhanced inspection. And NRC staff is 18 correct when they say that they have gotten their 19 papers that this is a current licensing basis issue.
20 That is their position.
21 However, it is not treated as a current 22 licensing basis issue. In fact, these enhanced 23 inspections are not occurring. And so this is the 24 moment in time for the extended licensing review, the 25 extended license review, where we can seek to have NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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389 1 that enhanced inspection be imposed for 20 years into 2 the future.
3 It is not being addressed now. They say 4 that it is a current licensing basis issue, but it, in 5 fact, is not being addressed as a current licensing 6 basis issue. And, in any event, this arises because 7 of the extended license period. **CHAIRMAN McDADE:
8 Okay. But specifically, as I understand, the position 9 of Entergy is that they have addressed an aging 10 management plan for the containment structure, that 11 that is specifically addressed in the license renewal 12 application 2.4-2.
13 And the question then is, is there 14 anything specifically that is deficient in their 15 treatment of the aging management plan for the 16 containment structure?
17 MS. MATTHEWS: Yes. They are not 18 proposing to do any enhanced inspections given that 19 the cement/water ratio is different, the old standard 20 is different, than what it would be built today.
21 CHAIRMAN McDADE: Okay. And what they are 22 saying is that there is no regulatory requirement for 23 them to do an enhanced inspection, that they met the 24 applicable -- and I believe at the time, it had to do 25 with -- was it the Concrete Institute?
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390 1 MR. O'NEILL: Yes, the ACI-318.
2 CHAIRMAN McDADE: Yes, was the applicable 3 standard, that they met that applicable standard. So 4 that there was not a problem at the time that the 5 plant was built, that under the regulation, they do 6 have an aging management plan. But their position is 7 that there is no requirement under the regulation for 8 enhanced inspections, as suggested by New York. **And 9 my question, then, went back. You know, the original 10 reference had been at some place in NUREG 1801, it is 11 suggested that these enhanced inspections were 12 necessary and that the question is, you know, where do 13 you rely.
14 MS. MATTHEWS: Your Honor, if I can direct 15 you to NUREG 1801, table 5, September 2005, page 80?
16 And it's a table. And there is a category that says, 17 "Further evaluation recommended." And there is a 18 series of "Yeses" under that for further evaluation, 19 specifically referring to the concrete elements.
20 CHAIRMAN McDADE: Okay. And specifically 21 what about the aging management plan that they have 22 put forward do you think is deficient based on that?
23 MS. MATTHEWS: They had not proposed that 24 kind of further evaluation based on the different 25 standards: the old standard and today's standard.
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391 1 And, again, we're not criticizing the 2 construction based on those prior standards. We are 3 not criticizing that. We're just saying that here 4 they are asking for 20 additional years of operation 5 when we know that if they were building this plant 6 today, it would have a different standard, that they 7 need to have this further evaluation, enhanced 8 inspection. And they have not proposed to do that.
9 **JUDGE WARDWELL: But is the term "enhanced 10 inspections" your term or an 1801 term?
11 MS. MATTHEWS: I believe it does relay the 12 term "enhanced inspections," but I'll refer to it as 13 the further evaluation. I think they are used 14 interchangeably.
15 JUDGE WARDWELL: How do you know they 16 haven't done a further evaluation on their own and 17 just said, "Well" --
18 MS. MATTHEWS: Dr. Leahy -- I'm sorry.
19 JUDGE WARDWELL: And there's nothing that 20 strikes us that that is needed. Yet, they didn't 21 bother documenting it.
22 MS. MATTHEWS: Dr. Leahy had reviewed what 23 they had submitted as part of their application. And 24 he did not see it. He knows that there are these two 25 different standards in his professional opinion that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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392 1 warrant something further. They did not propose that.
2 JUDGE WARDWELL: And in that table, when 3 does that mark get added and against what? What is 4 the line in that table that you're using that says the 5 water/cement ratio falls within there or is the 6 water/cement ratio an absolute parameter in that 7 table?
8 MS. MATTHEWS: It's line 14 on that page, 9 "Concrete elements, dome, basement," et cetera, and 10 the aging effect/mechanism is "loss of material, 11 scaling, cracking, and spalling due to freeze/thaw" 12 and all the specifics we had provided in our 13 contention and again in our reply.
14 CHAIRMAN McDADE: Okay. But what is the 15 indication that any of that has occurred?
16 MS. MATTHEWS: Do you mean today or --
17 CHAIRMAN McDADE: Yes.
18 MS. MATTHEWS: Well, we're talking about 19 a 20-year license extension here for a plant that has 20 a different water/cement ratio than would be required 21 today. So they have to look at it, review it, and 22 keep looking at it to make sure that these things 23 don't happen.
24 CHAIRMAN McDADE: Is the difference 25 between the water/cement ratio and NRC regulations or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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393 1 NRC guidance today significant? I mean, where is it?
2 In your declaration, it indicates that that variance 3 is significant, that you would expect a different 4 result.
5 MS. MATTHEWS: We did provide the 6 differences in the standard in the declaration, in Dr.
7 Leahy's declaration.
8 CHAIRMAN McDADE: No. I understand the 9 differences in the standard.
10 MS. MATTHEWS: Okay. Yes. **CHAIRMAN 11 McDADE: But I am looking for the significance. Why 12 is that of consequence in this particular context? We 13 have a different water/cement ratio.
14 MS. MATTHEWS: Yes.
15 CHAIRMAN McDADE: But why should that 16 matter in this context here?
17 MS. MATTHEWS: Paragraph 7 of our petition 18 on page 222. We explain that containment structures 19 by their nature play a critical role in the safe 20 operation of a nuclear power facility.
21 This is particularly important for the two 22 operating reactors at Indian Point, which has the 23 highest population density of any nuclear power plant 24 integrity and that Entergy has not proposed to conduct 25 those enhanced inspections.
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394 1 We had also mentioned -- I believe it was 2 in the reply, the discussion of the weather impacts, 3 too, given the location of this plant.
4 CHAIRMAN McDADE: Okay. I guess what I'm 5 getting at is not obviously the integrity of the 6 containment structure is a significant matter. What 7 I am trying to get at is where do we look in what you 8 have submitted that would suggest to us that the 9 integrity of the containment structure would be 10 materially different using one water/cement ratio, as 11 opposed to another, not is it better or worse, a more 12 updated one, but that that different water/cement 13 ratio would result in a materially different level of 14 integrity for the containment structures during this 15 extended period of operation?
16 MS. MATTHEWS: Respectfully, Your Honor, 17 it really speaks for itself in terms of when you have 18 a prior standard and then you have an updated 19 standard, a construction standard, and when an 20 applicant is coming in seeking an additional 20 years 21 of license extension that you would obviously look at 22 this.
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395 1 structure. And we're asking given the location of 2 this facility in the Northeast, that it's appropriate 3 to have this further evaluation, this enhanced 4 inspection.
5 So I think I am answering your question.
6 Tell me if I'm not.
7 JUDGE LATHROP: I don't think you answered 8 it.
9 MS. MATTHEWS: Okay. **JUDGE WARDWELL:
10 Let me ask you --
11 JUDGE LATHROP: Do you know what the 12 reason for the updated standard is?
13 MS. MATTHEWS: I do not right now. I 14 mean, I can --
15 JUDGE LATHROP: That is what is being 16 asked. What is the significance of the updated 17 standard? **MS. MATTHEWS: Construction standards 18 change all the time -- **JUDGE LATHROP: That's right.
19 MS. MATTHEWS: -- for lots of different 20 facilities. It's giving experience and aging.
21 JUDGE WARDWELL: Let me ask the staff this 22 to see if maybe this will help. Do you know if it's 23 relatively apparent that changes in water/cement ratio 24 influence the freeze/thaw resistance of concrete?
25 MR. ROTH: Could you repeat the question, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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396 1 please, Your Honor?
2 JUDGE WARDWELL: I doubt it.
3 (Laughter.)
4 JUDGE WARDWELL: Is it common engineering 5 knowledge that changes in water/cement ratio of 6 concrete have a direct influence on the freeze/thaw 7 resistance of concrete?
8 MR. ROTH: Let me consult with staff.
9 JUDGE WARDWELL: Sure. And it should be 10 fairly quick, the answer. It's not a detailed one.
11 (Pause.)
12 MR. ROTH: I would have to consult with a 13 structure staff person to determine if that's common 14 engineering knowledge among the structural people.
15 **JUDGE WARDWELL: Okay, 16 MR. ROTH: And I don't have a structure 17 staff person by me.
18 JUDGE WARDWELL: Thank you.
19 Entergy, would you be willing to respond 20 to that question?
21 MR. O'NEILL: I was going to say I would 22 be willing to respond to another question. **JUDGE 23 WARDWELL: Well, I'm sure you would, but I would like 24 if you would respond to my question.
25 MR. O'NEILL: Give me a moment to confer.
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397 1 (Pause.)
2 JUDGE WARDWELL: Again, I'm not looking 3 for the relationship between it. I'm looking for a 4 simple answer of whether or not you feel it is common 5 knowledge that the water/cement ratio directly 6 influences --
7 MR. O'NEILL: Well, in a nutshell --
8 JUDGE WARDWELL: -- freeze/thaw 9 resistance.
10 MR. O'NEILL: It's a guide to be used. I 11 mean, it's not the principal controlling factor. So 12 we've done --
13 JUDGE WARDWELL: It's fairly common 14 knowledge that water/cement ratio does influence 15 freeze/thaw resistance, not to what degree or what 16 significance. It's knowledge that changes in that 17 will change the freeze/thaw resistance. Is that 18 correct?
19 MR. O'NEILL: It's the number one guide to 20 strength, compressive strength.
21 JUDGE WARDWELL: Say your answer again.
22 MR. O'NEILL: It's considered to be the 23 number one guide or useful indicator for strength, 24 compressive strength. **JUDGE WARDWELL: And would it 25 also be, is there a relationship between water/cement NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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398 1 ratio and not a relationship? Is it common knowledge 2 that water/cement ratio influences the freeze/thaw 3 resistance?
4 MR. O'NEILL: It influences it but not 5 directly. **JUDGE WARDWELL: Okay.
6 JUDGE LATHROP: Excuse me. You were 7 saying that the ratio determines the compressive 8 strength?
9 MR. O'NEILL: It's considered a guide, 10 understanding the compressive strength, but we do 11 28-day cylinder tests to confirm the strength, 12 confirmation.
13 JUDGE LATHROP: So the possible reason for 14 the updated standard would be to give more compressive 15 strength to the concrete?
16 MR. O'NEILL: It's just one of many 17 factors that goes into concrete strength.
18 But there is one point that I would really 19 like to emphasize. First of all, I think we 20 vigorously object to the use of the term "standard."
21 It is not a standard. It is contained in the 22 guidance.
23 And the other point I would really like to 24 emphasize is that -- and this is a point that the 25 staff made in its pleadings -- the GALL report NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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399 1 distinguishes between containment structures and 2 structures and component supports.
3 And this ratio, the 0.35 to 0.45 ratio, 4 which appears to form the linchpin of the state's 5 argument here applies to the latter category, to 6 structures and component supports. It's not even 7 discussed with respect to containment structures.
8 JUDGE WARDWELL: Earlier you made a 9 reference reminding us that it's only guidance. I 10 find that ironic that you would use that phrase after 11 all the hearing that we've had the last two days.
12 MR. O'NEILL: I understand, but the point 13 is that we address in our application the fact that we 14 complied with the ACI-318 and have a ratio of .576.
15 And we specifically explain in section 3.522 why that 16 ratio is acceptable.
17 JUDGE WARDWELL: And that's fine, and I'm 18 not questioning that.
19 MR. O'NEILL: Yes.
20 JUDGE WARDWELL: What I am questioning is 21 why are you besmirching New York for referencing 22 guidance when you seem to rely on an awful lot of 23 their other situations? It seems like it's a 24 contradiction in approaches. **MR. O'NEILL: Again, 25 suggesting or imputing that it's more than guidance.
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400 1 You know, it's a specific regulatory requirement.
2 **JUDGE WARDWELL: So you agree --
3 MR. O'NEILL: Certainly we have extolled 4 the merits of guidance. I won't deny that, Your 5 Honor, and I think for good reason. I think it adds 6 a lot of uniformity and standardization to the 7 process. And applicants have every right to rely on 8 guidance.
9 JUDGE WARDWELL: Thank you. **MS.
10 MATTHEWS: Your Honor, if I could refer the Board to 11 page 120 of our reply, provides more of the specifics 12 of GALL and more cites and identifies the concern 13 about where this plant is located. The GALL reference 14 is 3.5-12.
15 JUDGE WARDWELL: Back to Entergy. I was 16 just thinking about your comment, statement in regards 17 to what this applies to and your saying that it 18 doesn't apply to the containment structure. Is the 19 containment structure considered a systems structure 20 or component that's eligible for aging management 21 review?
22 MR. O'NEILL: Yes, but --
23 JUDGE WARDWELL: Is there any reason why 24 that wouldn't be listed in the list that you had just 25 recited? I'm curious why it isn't there.
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401 1 MS. SUTTON: One moment, please.
2 (Pause.)
3 MR. O'NEILL: I've been informed -- and I 4 guess I will retract my prior statement. You know, 5 one of our experts believes it does apply to both.
6 CHAIRMAN McDADE: Okay. New York 7 contention number 5, "The license renewal application 8 does not include an adequate plan to monitor and 9 manage the effects of aging due to embrittlement of 10 the reactor pressure vessels and the associated 11 internals." Okay.
12 Can New York explain why you believe that 13 the monitoring is inadequate?
14 MS. MATTHEWS: Yes. Dr. Leahy reviewed 15 the license renewal application. And he saw that 16 Entergy had not addressed this concern sufficiently.
17 The --
18 CHAIRMAN McDADE: Well, it is addressed at 19 3.1 in the license renewal application. What 20 specifically is inadequate in the way it is addressed?
21 MS. MATTHEWS: That the license renewal 22 application mentioned thermal shocks but not in any 23 sufficient detail and there are no age-related 24 accident analyses.
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402 1 had included in its application. And Entergy's own 2 tests demonstrated a concern. Paragraphs 14 to 18 of 3 Dr. Leahy's declaration point out specifically the 4 deficiencies in Entergy's application.
5 The concern here, of course, is that a 6 component will fail, which will lead to a meltdown of 7 the core. As this Board well knows, the RPV is the 8 primary container that holds the core. And a main 9 concern that Dr. Leahy has identified is in the 10 beltline region, which is closest to the reactor core.
11 And one of his concerns, of course, includes both the 12 bolts and the welds, among other components.
13 So Entergy has put forth some information 14 in its application. Dr. Leahy has reviewed that 15 information and has determined that it is not 16 sufficient. So we have a clear-cut dispute of the 17 experts, which warrants a hearing on the merits.
18 **CHAIRMAN McDADE: What is Entergy's response that 19 this is a genuine dispute that should be resolved at 20 a hearing?
21 MR. O'NEILL: We just don't think the 22 state has proffered sufficient basis to support the 23 claims, notwithstanding the fact that there is a 24 declaration, which contains a lot of bare assertions 25 about what should be considered as part of the license NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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403 1 renewal relative to embrittlement, not what the 2 regulations actually require. **CHAIRMAN McDADE: But 3 doesn't Dr. Leahy suggest that based on his analysis, 4 the TLAAs don't demonstrate that they will perform 5 their intended function?
6 I mean, it's not at this point a 7 definitive decision. It's just simply that there are 8 questions raised by Dr. Leahy as to whether or not 9 these will perform appropriately during the time 10 period of the extension.
11 How much more do you think that they need 12 to put in there? I mean, he does specifically address 13 them. Yes, they are addressed in your application.
14 You do address these particular -- they're not saying 15 that you didn't address them. They're challenging the 16 adequacy of the way that it is addressed. And they 17 have proffered expert opinion that suggests that they 18 are inadequate.
19 Now, why would this not be something that 20 would be best decided with the witnesses in front of 21 us, your witnesses explaining why they are adequate, 22 Dr. Leahy explaining why they are not?
23 MR. O'NEILL: Again, we just don't see 24 specific references to the license renewal 25 application. I mean, there are a lot of conclusory NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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404 1 statements in there. For instance, you know, as we 2 pointed out in our pleading, we think he confuses 3 embrittlement in RPV with embrittlement of the reactor 4 vessel internals.
5 New York quotes Dr. Leahy for the notion 6 that embrittlement applies to the core barrel, 7 particularly in the beltline region of the reactor 8 core, the thermal shield, the baffle plates, 9 informers, and the loads on the associated bolts, and 10 the intermediate shells in the core.
11 However, the core barrel, the thermal 12 shield, baffle plates, and baffle informer plates, 13 they're all made of stainless steel and are not 14 susceptible to decrease in fracture toughness as a 15 result of neutron embrittlement.
16 CHAIRMAN McDADE: Okay. But not all of 17 the items he raises are made of stainless steel, 18 correct? I mean, there are many. And your response 19 to those is they are made of stainless steel. He 20 didn't take that into consideration. He hasn't raised 21 an issue. But that doesn't go to every item mentioned 22 by Dr. Leahy.
23 MR. O'NEILL: Well, that relates 24 specifically to 50.61, the fracture toughness 25 requirements. But he also discusses the sharpey test NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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405 1 issue. And he really ignores the explanation that's 2 in the application, section 8.22-13, that the minimum 3 acceptable upper shelf energy for reactor vessel plate 4 material in the four-loop Westinghouse plants is 43 5 pounds, rather than 50 pounds.
6 The application demonstrates that the 7 upper shelf energy values below 50 pounds are 8 acceptable. **CHAIRMAN McDADE: Okay. I'm sorry.
9 Where was this --
10 MR. O'NEILL: We just think the testimony 11 is fraught with errors, erroneous.
12 CHAIRMAN McDADE: Can you just give me 13 that cite again? Where in your application?
14 MR. O'NEILL: It's section A. Well, this 15 would be the appendix, A.2.2.1.3.
16 CHAIRMAN McDADE: Okay. And forgive me.
17 Just do that once more just to make sure I have 18 written it down correctly so when I go to read it, 19 I'll find it.
20 MR. O'NEILL: The citation?
21 CHAIRMAN McDADE: Yes.
22 MR. O'NEILL: Yes. It's A.2.2.1.3.
23 CHAIRMAN McDADE: Okay.
24 MR. O'NEILL: We also think that the claim 25 relative to the NDT, the non-disruptive test, lacks a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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406 1 basis as well. New York asserts that the internals in 2 IP-3 apply operational limits for extended life 3 operations due to the high nil-ductility temperature 4 associated with the predicted irradiation-induced 5 embrittlement.
6 To the extent the statement seeks to 7 challenge our control of embrittlement or Entergy's 8 control of embrittlement, it lacks support because 9 Entergy is complying with 50.61.
10 So our bottom line here is we think the 11 contention lacks adequate factual or expert support, 12 that it fails to directly controvert the application, 13 I mean, in any material way, whether it be an omission 14 or incorrect treatment of an issue.
15 CHAIRMAN McDADE: New York, do you have 16 anything further on that?
17 MS. MATTHEWS: Yes. Well, Dr. Leahy had 18 reviewed the application, of course. And they had 19 included these two tests. He had reviewed those two 20 tests. He reviewed the explanations. It's still a 21 problem.
22 And, as Your Honor had noted a moment ago, 23 the answer is not, well, some of these components are 24 made of stainless steel. Not all of them are made of 25 stainless steel. And even the welds of the in-course NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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407 1 structures are a potential safety problem, even if 2 they are comprised of stainless steel.
3 And Dr. Leahy also opined that there was 4 evidence that Entergy considered decompression shock 5 loads during the original design basis LOCA. And 6 these loads can damage the course so that if it is 7 uncoolable -- and we had explained that sufficiently 8 in both the petition and in the reply and in Dr.
9 Leahy's declaration in extensive detail that they did 10 not consider that.
11 CHAIRMAN McDADE: Okay. A couple of 12 things to Entergy specifically and in their petition 13 and in the Leahy declaration, they suggest that your 14 license renewal application did not indicate that you 15 had performed age-related accident analysis or even 16 took a look at embrittlement into account when 17 assessing the effect of transient loads.
18 Question in this paragraph 14 of the Leahy 19 declaration, did you? If so, where do we look in the 20 license application? If you didn't, why is that not 21 necessary? **MR. O'NEILL: Excuse me, Your Honor.
22 (Pause.)
23 MR. O'NEILL: I have been informed that 24 complying with 50.61 on an ongoing basis satisfies 25 your accident analyses assumptions. In other words, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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408 1 you don't perform separate tasks, transient analyses 2 for purposes of license renewal.
3 CHAIRMAN McDADE: So the answer to that is 4 not that you contest what Dr. Leahy is saying. What 5 you're saying, rather, is that those are not required 6 in the context of and specifically paragraphs 14 7 through 16 of this declaration, where he says that 8 there are certain things that you did not do? It's 9 your position that crediting what Dr. Leahy has said, 10 they are not required in the context of your license 11 renewal application?
12 MR. O'NEILL: That's correct.
13 CHAIRMAN McDADE: Okay. And where would 14 we look in the regulations that would demonstrate that 15 they are required?
16 MS. MATTHEWS: Our burden here is to 17 demonstrate that what they have done, what they have 18 presented to the NRC and to this Board is inadequate.
19 And we have done that.
20 So it's not our burden to demonstrate more 21 of the details of how they have to do something but 22 what they have done, what they have put forth is 23 inadequate. That's the proposed intervenor's burden.
24 CHAIRMAN McDADE: Okay. But when you say 25 that it's inadequate, clearly Dr. Leahy says that in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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409 1 his opinion, this should have been done.
2 MS. MATTHEWS: Yes.
3 CHAIRMAN McDADE: The answer by Entergy is 4 whatever Dr. Leahy's position is in this regard, the 5 regulation doesn't require us to do it. Ergo, our 6 application is not deficient because we failed to do 7 it.
8 So what I am looking for is some what is 9 the regulatory tag that you are seeking to hang Dr.
10 Leahy's testimony on.
11 MS. MATTHEWS: Their burden is to bring 12 forth an adequate aging management program based on an 13 adequate aging management review. That is their 14 burden.
15 Dr. Leahy reviewed what they had 16 submitted. He has serious concerns, serous safety 17 concerns, about this embrittlement issue. That could 18 be addressed in certain ways, which he does suggest.
19 He points out the deficiencies in what they had 20 submitted to the NRC. And he explains why those 21 deficiencies create a significant aging and 22 safety-related problem. That is the intervenor's 23 burden. And we have met that burden.
24 So the regulations require them to have a 25 sufficient aging management review and a sufficient NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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410 1 aging management program to go 20 years into the 2 future for the extended licensing period. And they 3 don't have that.
4 They have put forth information. We have 5 countered that information. And we should have a 6 hearing on the merits. The regulations do not limit 7 the scope. They don't narrowly bound the scope of 8 what is to be included to promote an adequate aging 9 management review or an adequate aging management 10 program. It's bounded by safety considerations. And 11 that is what Dr. Leahy has focused on. **CHAIRMAN 12 McDADE: Okay. Mr. O'Neill, was the cite that you 13 gave me 51.61?
14 MR. O'NEILL: 50.61.
15 CHAIRMAN McDADE: Okay. 50.61? **MS.
16 SUTTON: Correct.
17 CHAIRMAN McDADE: Okay. Moving on to New 18 York contention 26, Entergy's license renewal 19 application does not include an adequate plan to 20 monitor and manage the effects of aging due to metal 21 fatigue on key reactor components.
22 Okay. There was a license amendment 23 filed, license amendment 2, on June 22nd, '08.
24 Question to --
25 MS. MATTHEWS: January.
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411 1 CHAIRMAN McDADE: Okay. **MS. MATTHEWS:
2 We knew what you meant.
3 CHAIRMAN McDADE: Yes. When I write in my 4 notes, my handwriting, June and January look an awful 5 lot alike, particularly if I am writing late at night.
6 Okay. But if it was done on June 22nd, '08, by golly, 7 it would be very efficient in dealing with it now.
8 Okay.
9 Why does that not cure whatever defect 10 that you identified in your original contention? **MS.
11 MATTHEWS: According to section 2.309(f)(2),
12 contentions must be based, must be based, on documents 13 or other information available at the time the 14 petition is to be filed, such as the application 15 supporting safety analysis report, environmental 16 report, or other supporting document filed by an 17 applicant or a licensee or otherwise available to a 18 petitioner. We filed our petition on November 30th, 19 2007.
20 This license renewal application amendment 21 was not in existence at the time, though later events 22 have demonstrated that Entergy did have all of the 23 information within its ken at the time that it filed 24 its April 2007 license renewal application.
25 There is a process for amending NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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412 1 contentions. And that is set out also in 2.309(f)(2).
2 And we would have to seek leave to file that. There 3 is an orderly process that the Commission has 4 established in its regulations, which, by the way, are 5 strict by design. And we are following that.
6 We are trying to be very careful here. We 7 have filed those contentions based on the information 8 that we had available at the time. Entergy has since 9 come in with additional information, coincidentally 10 along same date as its reply. They refer to that 11 license renewal application amendment in its answer, 12 but, yet, they didn't annex it to the answer. And it 13 appeared about a week later or ten days later on 14 ADAMS.
15 So it doesn't change anything now. Might 16 it change something later? Yes. After this Board has 17 ruled on the contentions and established a scheduling 18 order for any additional contentions to be filed, as 19 is customary in other cases, but right now it is of no 20 moment.
21 CHAIRMAN McDADE: Well, assume for the 22 sake of argument that you might consider it of moment 23 that the license application includes amendment 2 at 24 this point in time, that if it had come in after we 25 had admitted the contention, effectively it would be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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413 1 a contention of omission that they would then say had 2 been cured.
3 Isn't the appropriate remedy on the part 4 of the Board here, which would be to allow you to file 5 an amended contention so that you would be again 6 apples to apples, oranges to oranges that you would be 7 addressing the license application as it exists? What 8 is the point of admitting a contention and litigating 9 the adequacy of a license application that is no 10 longer pending, that has been modified?
11 In this particular case, for example, 12 Riverkeeper came in and filed an amended contention 13 based on the amendment. Here would not the remedy 14 have been if you think that they were late, they 15 should have filed it earlier, they could have filed it 16 earlier, and that put you at a disadvantage just to 17 make a request to say, "We need additional time. This 18 contention should not be ruled on at this point in 19 time. We need time to assess what impact amendment 2 20 has" and then determine whether or not we still have 21 a quibble? It may well be that we are satisfied that 22 that answers our questions and ensures safety, but we 23 have to look at it, you know.
24 MS. MATTHEWS: That's right.
25 CHAIRMAN McDADE: What is the benefit of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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414 1 our going forward at this point?
2 MS. MATTHEWS: And I do understand the 3 concern. I do. But we are trying to be very careful 4 in following the regulations. And we don't believe --
5 and I don't think Your Honor is suggesting this at 6 all, but we don't believe that we should be blamed or 7 penalized because Entergy had withheld information, 8 for whatever reason, and has come in late with that 9 information.
10 That really is years old because they were 11 relying on what they call an approach at two units in 12 an Arkansas plant that were a number of years ago. So 13 they had all of this information.
14 I think, as this Board knows, this issue 15 is front and center in Vermont Yankee also. And there 16 were amended contentions there. But that amended 17 contention occurred after the initial contention had 18 been filed.
19 So this Court has the inherent authority 20 to say we will hold a certain contention in abeyance 21 and we will provide a scheduling order for additional 22 contentions. And that would be fine. But we were 23 trying to follow the rules as we saw them.
24 There is an orderly process. Entergy 25 could have moved to dismiss our contention or the NRC NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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415 1 staff, by that matter. They could have moved for 2 summary disposition.
3 I think, as the Board knows, we have an 4 outstanding motion to strike the staff's unauthorized 5 pleading letter on this very issue, the letter that 6 really didn't provide much of any analysis at all.
7 So we are concerned that what is happening 8 is going outside the normal practice for these 9 proceedings.
10 JUDGE WARDWELL: But what regulation did 11 Entergy violate in regard to submitting this license 12 amendment?
13 MS. MATTHEWS: Well, there is a 14 regulation, 5413, in terms of the completeness and 15 accuracy of information. They must submit complete 16 and accurate information. But it's more a matter of 17 their strategy. Okay?
18 They have information solely within their 19 ken that they knew about. And they are timing their 20 strategy in a way and their submissions in a way that 21 do disadvantage intervenors, not only New York but 22 other intervenors who are interested in this issue 23 also.
24 And this I think is a concern not only for 25 this Board but for boards in other cases as well to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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416 1 allow and to permit the practice of operators holding 2 back information and really draining the resources of 3 petitioners.
4 And I am not really just saying that about 5 the State of New York, but a lot of other petitioners 6 do not have the money to keep litigating these issues.
7 We can keep going on this, but they can't.
8 But they can sit back and try to time how they are 9 going to submit their information. And it does work 10 at a disadvantage to getting to the truth of these 11 matters.
12 CHAIRMAN McDADE: Okay. Well, someone 13 might argue that, in fact, by responding early; i.e.,
14 not waiting until this contention gets admitted or 15 not, but, in fact, taking some action on the proposed 16 contention at this point helps reach a better 17 amendment, a better amendment and a better license 18 application.
19 And so that, in turn, all parties are 20 served because, in fact, things are unproven in 21 regards to what they're proposing in their license 22 renewal application.
23 MS. MATTHEWS: And I think I would agree 24 with you if we were sitting here in April 2007, but 25 we're not. We're in 2008, when there was plenty of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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417 1 time for Entergy to have come forward with this 2 amendment, well before we submitted our initial 3 petition.
4 So again we come down to this timing issue 5 and Entergy playing a certain strategy. And it really 6 works to a disadvantage to the intervenors. It really 7 does.
8 CHAIRMAN McDADE: Okay. Well, at least at 9 this point in time and sort of to give my views very 10 quickly here, one, with regard to the letter that Mr.
11 Turk submitted, perhaps it better could have been 12 captioned as an amended answer and put in the form of 13 a pleading. However, it certainly was designed, I 14 think, to correct the record as quickly as possible.
15 In the answer, they had indicated that 16 they did not oppose the admission of this contention.
17 They wanted to bring to the attention of the Board as 18 quickly as possible and did it in a form as quickly as 19 possible with a copy to New York so that New York was 20 not blind-sided at all, but based on the amendment, 21 they now took a different view.
22 That said, there is no indication that 23 Entergy has acted in bad faith on this. So we are now 24 in a situation where we have the amended license 25 application before us. And the question is what to do NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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418 1 with it.
2 New York seems to say that we should begin 3 to litigate something that is no longer in existence.
4 I don't think we're predisposed to doing that. So the 5 remedy then is, at this point in time, does New York 6 need additional time within which to respond to this 7 license amendment to make a determination: one, does 8 this cure our problem, as the NRC staff indicates it 9 does for them, or do you wish to redraft the 10 contention in light of that? And the question then 11 is, how much time would you need?
12 And, rather than put you on the spot right 13 now, when you have been here and you are going to be 14 here for a little bit longer, why don't we just simply 15 say that if you could by Monday of next week notify us 16 whether or not you wish to file an amended contention 17 based on the new information, the license amendment, 18 and if so, how much time you are going to request in 19 order to do that?
20 And we may or may not find that we are of 21 a mind to give you that much time.
22 MS. MATTHEWS: Right.
23 CHAIRMAN McDADE: It obviously depends on:
24 a) whether you want to do it, b) how much time you 25 request.
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419 1 Other than that, it doesn't seem like it 2 is worthwhile discussing this at this point in time 3 any further. And I wonder if we are ready to move to 4 the next contention.
5 MS. MATTHEWS: Okay. And I would also 6 refer the Board to page 129 of our reply, where we do 7 offer a limited critique of what Entergy had 8 submitted. So we didn't just ignore it. I just want 9 you to know. **CHAIRMAN McDADE: I understand.
10 MS. MATTHEWS: Okay.
11 CHAIRMAN McDADE: And if you want to just 12 --
13 MS. MATTHEWS: Absolutely. **CHAIRMAN 14 McDADE: -- stick with that, you can, now.
15 MS. MATTHEWS: Yes.
16 CHAIRMAN McDADE: But if you want more 17 time to file something more extensive, you know, I'm 18 saying that by next Monday, let us know.
19 MS. MATTHEWS: And we will propose a time.
20 Okay. Thank you, Your Honor.
21 CHAIRMAN McDADE: Okay. Contention number 22 27, "The NRC should renew its licensing proceeding, 23 its relicensing proceeding, the safety on the on-site 24 storage of spent fuel, and the consequences of a 25 terrorist attack on any of its three spent fuel pools NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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420 1 at Indian Point."
2 I think that it is very clear what the 3 parties' positions are from the pleadings with regard 4 to contention number 27. I don't have any questions 5 with regard to that.
6 That being said, again, we're not ruling 7 on any of these contentions at this point in time.
8 It's just we don't have any questions that aren't 9 answered by the pleadings.
10 New York contention number 28, 11 "Radionuclides leaking from the Indian Point 1 and 12 Indian 2 spent fuel pools are contaminating 13 groundwater in the Hudson River. And NEPA requires 14 that the NRC examine the environmental impacts of 15 these leaks in the context of a license renewal 16 proceeding."
17 Okay. The first question to New York is, 18 why isn't this a category 1 issue and outside the 19 scope of this proceeding, specifically now addressing 20 the Commission decision in Turkey Point on this 21 particular point?
22 MS. MATTHEWS: Because the GEIS did not 23 address these types of leaks. The GEIS at 4.8.2 only 24 addressed tritium getting into the groundwater from 25 one plant. And that was the Prairie Hill plant.
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421 1 It was one paragraph in the GEIS. It did 2 not address strontium-90 leaks or cesium. There was 3 no discussion in that paragraph or in that example of 4 how tritium had gotten into the groundwater. There 5 was no mention of leaks and especially no mention of 6 leaks from spent fuel pools.
7 So the scope, if you will, of what was in 8 the GEIS did not encompass this particular issue. So, 9 really, it is neither a category 1 nor a category 2 10 issue. And NEPA requires that given the significant 11 environmental impact issue, that it be looked at in 12 the context of this proceeding. And Entergy did 13 address it in its environmental report.
14 JUDGE WARDWELL: Isn't it premature to 15 challenge what the NRC is examining in regards to the 16 impacts associated with these leaks?
17 MS. MATTHEWS: Right now? Well, we are 18 here now because we do have this application for a 19 20-year license. And so the rules require that 20 Entergy submit an environmental report. The law 21 requires that the NRC review the environmental impacts 22 from this action. This is certainly one of the 23 impacts that is going on at this site.
24 The action is a 20-year action. The 25 action isn't a one-day or a one-week or a one-year NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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422 1 action. It is a 20-year action. And so the impacts 2 of these leaks, which are not going to end any time 3 soon, need to be reviewed in the context of this 4 20-year proceeding.
5 JUDGE WARDWELL: How do you know that NRC 6 won't review them?
7 MS. MATTHEWS: Well, they have to review 8 it in the context of this proceeding. They are 9 reviewing it. We have a final hydrogeologic report.
10 You know, we are not suggesting that nobody is looking 11 at this. And certainly the State of New York has 12 looked at it, too.
13 JUDGE WARDWELL: How do you know they 14 aren't going to review them as part of this 15 proceeding?
16 MS. MATTHEWS: Well, what Entergy has done 17 is --
18 JUDGE WARDWELL: Not Entergy. I'm asking 19 the NRC. That's what you have in your contention.
20 The NRC reviewing these impacts is what you are 21 contending.
22 MS. MATTHEWS: Yes.
23 JUDGE WARDWELL: And my question is, how 24 do you know they won't be reviewing them?
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423 1 because we don't have the supplemental environmental 2 impact statement, we don't know that. And that is 3 true for -- **JUDGE WARDWELL: Isn't it premature?
4 MS. MATTHEWS: -- any environmental issue.
5 JUDGE WARDWELL: Isn't your contention 6 premature, then?
7 MS. MATTHEWS: Well, we are challenging 8 the environmental report here and the adequacy of the 9 environmental report. And Entergy, the information 10 that Entergy is putting forth, we believe is not 11 accurate. And Entergy under the rules has an 12 obligation. It is mandated to submit accurate 13 information. **They are saying that these leaks and 14 the levels of contamination are not significant. And 15 we take issue with that.
16 JUDGE WARDWELL: Well, this gets us back 17 to what happens when we have a dichotomy between your 18 contention and some of your comments within the 19 write-up of your contention. Your contention clearly 20 states that it's a NEPA issue requiring NRC to 21 examine.
22 And you then do mention the environmental 23 report in your analysis of that. But, yet, it's not 24 a part of your contention. Your contention strictly 25 talks about the NRC examining them.
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424 1 And you admit that it is premature because 2 they haven't issued their SEIS yet. So you don't know 3 whether or not they're going to. Isn't that the time 4 to bring up this contention?
5 MS. MATTHEWS: Well, it could be. And 6 certainly the rules contemplate that we can file 7 additional contentions. And we wouldn't have to seek 8 leave for that if it's based on the environmental 9 impact statement, the supplemental environmental 10 impact statement.
11 JUDGE WARDWELL: Only if you can show the 12 information wasn't available; --
13 MS. MATTHEWS: That's correct.
14 JUDGE WARDWELL: -- isn't that correct, 15 beforehand? **MS. MATTHEWS: That's correct. But 16 Entergy is required to submit this environmental 17 report, which informs the NRC's analysis for the 18 supplemental environmental impact statement.
19 And so our position is that Entergy has to 20 do that correctly. And in our view, Entergy has not 21 done that correctly. And so it is a step by step by 22 step process that the NRC relies, in part, on the 23 Entergy's environmental report. And the regulations 24 require, certainly, the submission of the 25 environmental report and that it be accurate. **JUDGE NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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425 1 WARDWELL: So why didn't you submit a contention to 2 that? **MS. MATTHEWS: We believe that it is in our 3 contention. It is in the contention.
4 JUDGE WARDWELL: Thank you.
5 CHAIRMAN McDADE: Okay. To the NRC staff, 6 Mr. Turk or whoever else wants to answer this, in your 7 view, is this a category 1 issue outside the scope of 8 the proceeding?
9 MS. MIZUNO: No, Your Honor, it's not.
10 Let me briefly, very briefly, quote from the GEIS.
11 I'm looking at GEIS. It's page 4-84. And I am 12 reading now, "For the purposes of assessing 13 radiological impacts, the Commission has concluded 14 that impacts are of small significance if doses and 15 releases do not exceed permissible levels in the 16 Commission regulations."
17 This is a section talking about 18 radiological impacts of normal operation section 4.6 19 of the GEIS. We believe the GEIS covers this as a 20 category 1 issue, generically addressed.
21 That is all, Your Honor. **CHAIRMAN 22 McDADE: Okay. When you first answered, I thought you 23 said no, that it was not a category 1.
24 MS. MIZUNO: I'm sorry. I misheard the 25 question, Your Honor. It is a category 1 issue. I'm NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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426 1 sorry. I misheard or misspoke.
2 CHAIRMAN McDADE: Okay. And in order to 3 make that determination that it is a category 1 issue, 4 you are going to to the NUREG?
5 MS. MIZUNO: I am quoting from the NUREG 6 1437, volume 1, the GEIS, generic environmental impact 7 statement, for license renewal.
8 CHAIRMAN McDADE: Okay. And specifically 9 you are looking to 4-84 within that?
10 MS. MIZUNO: Page 4-84. That's correct.
11 CHAIRMAN McDADE: Chapter 4, page 84?
12 **MS. MIZUNO: Sorry. Yes, that's right. Sorry.
13 CHAIRMAN McDADE: Okay. Is there anything 14 that we could look to specifically in appendix B to 15 subpart 51 that we could rely on in making the 16 determination that this is a category 1 issue?
17 MS. MIZUNO: Just a minute, Your Honor.
18 We are flipping through the CFR.
19 (Pause.)
20 MS. MIZUNO: Thank you, Your Honor. The 21 part of appendix B that we are looking at, subpart A, 22 appendix B, this section that's entitled "Human 23 Health," starts at page 50 of the 2007 Brown version 24 of the CFR.
25 CHAIRMAN McDADE: Okay. And which NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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427 1 specific section under there are you relying on?
2 MS. MIZUNO: The specific sections are 3 radiation exposures to public during refurbishment.
4 That would be small occupational radiation exposures 5 during refurbishment. That would also be small, 6 category 1's both of them.
7 CHAIRMAN McDADE: Okay. But this isn't 8 refurbishment. This is --
9 MS. MIZUNO: Sorry.
10 CHAIRMAN McDADE: This is the leakage from 11 the spent fuel pools that they're referring to.
12 MS. MIZUNO: Sorry. Sorry. The last two 13 entries, radiation exposures to the public during the 14 license renewal term, that's a category 1 issue. And 15 the impact is small. And occupational radiation 16 exposure is also category 1 issue and also with a 17 small impact.
18 JUDGE WARDWELL: And where do you believe 19 that the background for those two category 1's in the 20 GEIS considered those radiological releases to 21 groundwater had been considered?
22 MS. MIZUNO: Well, the GEIS that I quoted 23 talks about permissible doses. And the GEIS is 24 talking in terms of doses. I wasn't referring to the 25 portion of the GEIS that talks about leaks. So if you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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428 1 want that, I am going to need a little bit of time to 2 -- **JUDGE WARDWELL: I think that is the crux of the 3 matter that I think it is the position of New York 4 State that that hasn't been evaluated nor anticipated.
5 And that's why it's become such a visible and 6 concentrated effort extended by the Commission and the 7 staff in regards to evaluating these inadvertent 8 impacts over the past many months.
9 MS. MIZUNO: Yes, Your Honor. I 10 understand. **JUDGE WARDWELL: It hasn't been 11 anticipated before.
12 MS. MIZUNO: No. I think I understand 13 where you were coming from and the gist of your 14 question. Let me explain. The GEIS is framed in 15 terms of dosage. And this is how it addresses leaks 16 and other --
17 JUDGE WARDWELL: I understand. Just to 18 speed things up, I understand what you are saying.
19 MS. MIZUNO: Yes.
20 JUDGE WARDWELL: But, yet, my question is, 21 when they considered the doses to be small from normal 22 operations such that the radiation exposures to the 23 public during a license renewal term would be small, 24 did they include and consider what has now become 25 apparent to be radiological releases to the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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429 1 groundwater that hadn't been anticipated at least 2 before the last five years or so?
3 MS. MIZUNO: I understand. But those 4 releases it's our understanding that they're within 5 regulatory limits, Your Honor. And that's what the 6 GEIS is talking about.
7 JUDGE WARDWELL: And I believe that's New 8 York State's opinion, but that doesn't make it a 9 category 1 issue.
10 MS. MIZUNO: No, it does not.
11 JUDGE WARDWELL: It doesn't fall --
12 MS. MIZUNO: No.
13 JUDGE WARDWELL: This category 1 was given 14 to this without the consideration of that. And maybe 15 it would have been some other category if, in fact, 16 they had considered releases from groundwater saying 17 that it is a more site-specific issue that needs to be 18 addressed for each individual plan and not a generic 19 one because of the fact that each plant has a 20 different situation with regards to its inadvertent 21 radiological releases to groundwater.
22 MR. TURK: Your Honor, the GEIS, if I may 23 interject for a moment --
24 JUDGE WARDWELL: Sure.
25 MR. TURK: The GEIS considers the impacts NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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430 1 of operation. Operation includes not just 2 accident-free or non-leaking situations. It considers 3 normal operations, which may include some leakage.
4 At page 4-85 of the GEIS, there is a 5 discussion of public exposure. And it states, "During 6 normal operations after license renewal, small 7 quantities of radioactivity." It goes on to describe 8 fission, corrosion, and activation products, "will 9 continue to be released to the environment in a manner 10 similar to present operation."
11 So possibility of continued releases is 12 considered. As long as releases are within NRC 13 limits, then the GEIS has concluded and the regulation 14 concludes that the impacts to the public are small.
15 And that is a category 1 issue.
16 JUDGE WARDWELL: Hasn't the term "release" 17 prior to -- I'm just using five years now as a break 18 point between when, in fact, groundwater was started 19 to be encountered at many of these sites. Hasn't the 20 term "release" really been related to those licensed 21 releases associated with radiation to the environment 22 and not the inadvertent releases and specifically that 23 the GEIS never anticipated or even recognized that, in 24 fact, there were these radiological releases that were 25 inadvertently made to the groundwater?
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431 1 MR. TURK: My recollection is that the 2 releases typically are considered in terms of releases 3 that are planned, but they also would include 4 unplanned releases. It's not necessarily that these 5 are like the batched releases that go up the stack.
6 JUDGE WARDWELL: So you believe that the 7 GEIS considered inadvertent releases?
8 MR. TURK: Yes, we do.
9 JUDGE WARDWELL: You think that is 10 consistent with the conclusions of the task force that 11 looked into this in regard to the inadvertent 12 releases, their conclusions?
13 MR. TURK: May I have a moment? **JUDGE 14 WARDWELL: The NRC task force, I'm looking at the 15 inadvertent releases of radioactivity to the 16 groundwater lessons learned task force that address 17 this issue when, in fact, it became apparent that many 18 plants, including Indian Point, were saying, "What 19 should we do with all of these that we are now seeing 20 that have occurred?"
21 You look confused. You haven't heard of 22 the -- **MR. TURK: No. I personally am not familiar 23 with the issue, but if you give me a moment, I will 24 confer.
25 (Pause.)
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432 1 JUDGE WARDWELL: Just to cut this short, 2 if you just say you're not familiar with it, it's 3 fine. I'm not holding you to hold that. You wouldn't 4 necessarily be in the position. That's no problem.
5 **MR. TURK: Your Honor, I am looking at something 6 entitled "The Groundwater Contamination: Tritium at 7 Nuclear Plants." This is on the U.S. NRC Web site.
8 I am informed this is part of the task force report.
9 And it states that tritium is a mildly radioactive 10 type hydrogen, et cetera.
11 Water containing tritium and other 12 radioactive substances and is normally released from 13 nuclear plants in our controlled/monitored conditions.
14 The NRC mandates to protect public health and safety.
15 "The NRC recently identified several 16 instances of unintended tritium releases. And all 17 available information shows no threat to the public.
18 Nonetheless, the NRC is reviewing these incidents to 19 ensure nuclear plant operators have taken appropriate 20 action and to determine what extent, if any, changes 21 are needed to the" --
22 JUDGE WARDWELL: That's not the 23 conclusions. You are not reading from the conclusions 24 of the --
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433 1 on the Web site.
2 JUDGE WARDWELL: -- task force.
3 MR. TURK: I don't have the task force 4 report.
5 JUDGE WARDWELL: And do you know the date 6 of that that you were just reading from approximately?
7 MR. TURK: I don't know the --
8 JUDGE WARDWELL: Just approximately?
9 MR. TURK: I believe it's November 2007.
10 **JUDGE WARDWELL: Okay.
11 CHAIRMAN McDADE: Let me --
12 JUDGE WARDWELL: The point is that do you 13 believe that the -- when was the GEIS published?
14 MR. TURK: Nineteen ninety-six, Your 15 Honor. **JUDGE WARDWELL: Thank you.
16 CHAIRMAN McDADE: Let me just clarify 17 something in my own mind here and see if we can work 18 through it very quickly. It seems that the argument 19 that the staff is making here and that Entergy is 20 making is totally consistent with the Board's opinion 21 in Turkey Point. Turkey Point board clearly 22 considered this to be a category 1 issue under 23 appendix B. **However, my question is this. The 24 specific section of appendix B which talks about 25 radiation doses to the public will continue at current NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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434 1 levels associated with normal operations.
2 Now, it strikes me that nowhere has the 3 NRC said that leakage from a spent fuel pool is part 4 of normal operations. It seems like it would be 5 anathema to normal operations.
6 So the question then is, how does one get 7 from this appendix, which is binding upon us, -- if 8 it's a category 1, it's a category 1 -- to the 9 conclusion in the generic environmental impact 10 statement that it's a category 1?
11 MR. TURK: The answer is that the doses 12 tell you whether this is something within limits or 13 not within limits, whether it is something that the 14 GEIS considered or not. If the releases to the public 15 are monitored, as they have been under the current 16 operations, -- there has been well monitoring -- and 17 determination of where the releases are occurring from 18 and what the public impacts are, as long as those 19 impacts are within regulatory limits, then the GEIS 20 applies. The impacts are determined to be small on a 21 generic basis. **Whether it comes from a spent fuel 22 pool leak or some other sort of an accidental 23 condition or unintended condition, the precise source 24 is not the issue. The question is, have the exposures 25 to the public stayed within regulatory limits?
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435 1 CHAIRMAN McDADE: But at this point in 2 time, in normal operations, one would anticipate that 3 there would not be any leaks from a spent fuel pool, 4 that there have been some leaks.
5 Question, isn't it necessary to make 6 inquiry into how much, what is going to happen over 7 the extended life of the operations under the license 8 renewal in order to determine whether or not this 9 appropriately fits within category 1 because category 10 1 talks about normal operations, small exposure? **And 11 I think what the State of New York is saying is over 12 the extended life of this license, we at this point in 13 time have no way of knowing whether it will be small 14 exposure; ergo, this really isn't appropriately 15 treated in the generic way that it has been as a 16 category 1, there should be a preliminary decision by 17 the Board because they're saying this is sort of 18 outside the scope of normal operations.
19 Therefore, it hasn't been characterized 20 either as category 1 or category 2 at this point in 21 time. And having not been categorized, it's an open 22 question. It's something that they can properly 23 demand a hearing on, the environmental impact of this.
24 **MR. TURK: Two responses. I don't know if the mike 25 is picking me up. Two responses, Your Honor. Number NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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436 1 one, the GEIS at page 4-84 states that "Radiation 2 exposures occurring after license renewal are 3 projected based on present levels of exposures."
4 Current levels of exposures are well 5 within regulatory limits. The state has not shown any 6 evidence to indicate that the current limits are being 7 exceeded or are being close to being exceeded.
8 Further, they concede that both New York 9 State and the NRC are on top of the current problems.
10 The applicant recently I believe, in January of this 11 year, submitted what has been described by some as a 12 comprehensive groundwater report. That report is 13 under study by the NRC at this time.
14 The applicant has committed to draining 15 the unit 1 spent fuel pool, which had been the source 16 of much of the leakage in the past, particularly of 17 leakage associated with radionuclides other than 18 tritium. And they also have repaired the defects in 19 the spent fuel pool for unit 2 or perhaps it's the 20 transfer canal for the spent fuel pool at unit 2, 21 which was the source of tritium leaks.
22 So on a current operating basis, the leaks 23 are being addressed. The GEIS says look to the future 24 based on what the present levels of exposure are. And 25 those levels are within regulatory limits.
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437 1 The GEIS goes on to say if you are within 2 regulatory limits, the impacts are small on a generic 3 basis. And that's the answer.
4 CHAIRMAN McDADE: Okay. And that brings 5 us back to page 50, appendix B, the next to last 6 entry.
7 JUDGE WARDWELL: First I want to ask 8 another question in this regard. GEIS is making that 9 statement in regards to the current exposures from all 10 plants. And I'll wait until I'm sure that you are 11 listening.
12 The GEIS made that statement in regards to 13 an evaluation of general radiation exposures from all 14 plants at the time it was written and made what you 15 just quoted to us, saying that it was based on the 16 current operations that the doses are below that.
17 But at the time that the GEIS was written, 18 they did not include, am I correct in saying, any 19 inadvertent releases associated with groundwater 20 contamination because it wasn't an issue at that time?
21 Given that, they went ahead and said, 22 "Fine. We can give it a category 1," meaning that 23 it's a generic issue for all plants. You were saying 24 that you were related to the current operations at IP.
25 That isn't what GEIS is saying. GEIS is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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438 1 saying it's generic for all plants across the United 2 States. Therefore, it doesn't have to be looked at on 3 a site-specific basis.
4 You then went on to talk about 5 site-specific. And I think that is New York State's 6 argument. It is not a generic issue across all plants 7 but, in fact, has to be looked at and addressed on a 8 site-specific basis.
9 Therefore, it must be either a category 2 10 or an unclassified category at this point because it 11 hadn't been considered when GEIS was written.
12 MR. TURK: May I have a moment, Your 13 Honor?
14 CHAIRMAN McDADE: Sure.
15 (Pause.)
16 MR. BESSETTE: Your Honor, we may have to 17 clarify some things that --
18 JUDGE WARDWELL: Sure. Let's just let --
19 MR. BESSETTE: All right. **JUDGE 20 WARDWELL: I think that would be good.
21 (Pause.)
22 JUDGE WARDWELL: If you want more time, 23 staff, do you mind if we can go to them just so we can 24 move the hearing along and you won't mind? **MR. TURK:
25 Oh, please.
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439 1 JUDGE WARDWELL: One of you can keep an 2 ear on and let them know what happens so we're not 3 unfair to you, but I would like to hear from them.
4 And I don't want to interrupt if you want more time 5 here.
6 So go ahead. Entergy would be pleased to 7 hear what your response is.
8 MR. BESSETTE: Thank you, Your Honor.
9 I think we are dancing around the issue 10 because we are not resting on our category 1 laurels, 11 so to speak. The regulations require us -- and it is 12 incorrect that if there is any new and significant 13 information with regard to a category 1 issue, we need 14 to evaluate it. We did so.
15 We're not saying we don't need to evaluate 16 it. There's an entire section in the ER on the 17 groundwater issue. Consider doing significant 18 information. And it's all in chapter 5.
19 So the debate of whether we need to or not 20 need to we think is moot because it is in there. And 21 with regard to the data itself, the data indicates 22 that there is no significant impact. We're only a 23 small fraction of the dose limits even considering 24 that new and significant, potentially significant, 25 information.
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440 1 With regard to New York's contention, as 2 our colleagues from the NRC said, they have been 3 working with Entergy on this issue. There is no 4 dispute over the radiological data in their petition.
5 They agree with the data we have taken. We have 6 submitted in support of this contention the GZA report 7 is a comprehensive two-year study of all of these 8 issues.
9 So, again, there is no dispute over that.
10 We see no challenge to that. So we don't quite know 11 what the material issue is. We believe we have done 12 exactly that New York has requested. We have 13 evaluated the impacts of this.
14 One thing Ms. Leary had said is that we 15 have to look at new and significant information going 16 into the license renewal term. And right now if we 17 look at what the groundwater issue is, the majority of 18 environmental concerns are associated with strontium.
19 Strontium is only coming from unit 1.
20 Unit 1 spend fuel pool is not in the scope of license 21 renewal. And it will be emptied in 2008. So unit 1 22 will no longer be a source of groundwater 23 contamination. This year nothing to with license 24 rework, unit 3 there are no known leaks and on one has 25 provided any facts, any data to controvert that other NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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441 1 than perhaps a vague assertion that there may be leaks 2 in the future, completely unsupported.
3 The two identified leaks, all based on 4 accurate dada is that the leak occurred in 1990. That 5 was prepared in that same time frame. And the ongoing 6 leak of tritium was associated with an original 7 defect, original fabrication defect, in the transfer 8 canal. That has been repaired. And there is the 9 leakage that has been monitored from unit 2, has 10 essentially stopped.
11 So right now based on all of those 12 studies, the maximum dose per our radiological and 13 environmental program shows less than one percent of 14 the appendix I dose limits being seated.
15 And that is now. So if you go forward 16 into license renewal, there is absolutely no basis to 17 assert that there is any data that is going to 18 indicate that it is going to be maybe a more 19 significant environmental impact in a license renewal 20 term.
21 So we believe that we have thoroughly 22 addressed all of the issues New York is raising on a 23 site-specific basis and may have not refuted any of 24 the data. **JUDGE WARDWELL: Thank you for that. I 25 was going to get to that. And I am glad you brought NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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442 1 that up.
2 In regards to that, because of your 3 submittal, do you agree that, in fact, these 4 inadvertent releases can't be treated as a category 1 5 issue, then?
6 MR. BESSETTE: We believe groundwater 7 contamination is a category 1 issue, but the 8 groundwater releases at the site are new and 9 significant but potentially significant information 10 that should be considered on a site basis. And we 11 have done so. So if it were a purely category 1 12 issue, we wouldn't have done anything.
13 JUDGE WARDWELL: Do you agree, then, with 14 the contention, then, that your aging management plan 15 must include some process by which you can determine 16 whether or not those releases change over the license 17 renewal period such that they would be able to be 18 picked up in the future to assure that they don't 19 exceed the dose limits?
20 MR. BESSETTE: One minute, Your Honor.
21 (Pause.)
22 MR. BESSETTE: Your Honor, we do have 23 aging management plans for the structures, but with 24 regard to ongoing monitoring for leaks, that is 25 addressed by your normal radiological environmental NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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443 1 monitoring program. That is an ongoing regulatory 2 program. And those issues have been addressed in 3 several decisions recently.
4 JUDGE WARDWELL: Does your REMP currently 5 include assessing whether or not doses are exceeded of 6 radiological releases that include both the license 7 releases and inadvertent releases?
8 MR. BESSETTE: Your Honor, the 9 radiological environmental program looks at all 10 releases. I mean, it looks at downstream wildlife, 11 fish, exposures. It doesn't consider the typical 12 source.
13 JUDGE WARDWELL: But they had no data to 14 include inadvertent releases for many years, nor do 15 most plants have anything with that. Is that a fair 16 assessment associated with it?
17 MR. BESSETTE: One minute, Your Honor.
18 **(Pause.)
19 MR. BESSETTE: Your Honor, in addition to 20 the radiological environmental program, the site has 21 committed to a long-term groundwater monitoring 22 program on this issue. That is a current operating 23 issue because it is dealing with current radiological 24 conditions on the site.
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444 1 question, there is a radiological environmental 2 monitoring program, and there is also a site-specific 3 groundwater, long-term groundwater, monitoring program 4 that will address this issue. But, again, that is 5 current operating issue, not aging management.
6 JUDGE WARDWELL: Thank you.
7 New York, why don't the current operating 8 systems in place serve the needs that are being asked 9 for in regards to this contention?
10 MS. MATTHEWS: Well, first of all, Your 11 Honor, that does not appear to be anywhere in 12 Entergy's answer. But, secondly, we are looking at 13 the long-term impacts. And you have got a 20-year 14 review here that this issue is required to be looked 15 at.
16 What they are looking at now in the 17 current review is not taking into account extended 18 operations in that long-term review. We are here now 19 for the 20-year relicensing application. There is a 20 process for evaluating environmental impacts.
21 And when I hear staff cite to some of 22 these provisions in the GEIS, they simply don't apply.
23 The one that they have cited to, 4.6, radiological 24 impacts of normal operation, I don't know that I need 25 to address the latter part of that about normal NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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445 1 operation. We don't believe that leaks in spent fuel 2 pools are in any way a part of normal operation.
3 But this section refers to radiological 4 impacts on occupational personnel and members of the 5 public during normal operation following license 6 renewal, et cetera. It's not talking about the 7 impacts to the New York resource, the New York 8 resource of groundwater, the New York resource of the 9 Hudson River. The section that they have cited, 4.6, 10 simply does not address New York's concern.
11 I think I have answered your question, but 12 maybe I haven't. And I am happy to provide some more 13 information.
14 We are also very concerned about the 15 levels of contamination. Entergy characterizes those 16 levels as being low. We very much dispute that. We 17 have got strontium-90 levels at 14 times the drinking 18 water standard at one well, 3.4 times the drinking 19 water standard at another well.
20 We have tritium from the IP-2 spent fuel 21 pool at 30 times the drinking water standard. We also 22 have residual contamination. It's not enough that the 23 spent fuel pool in unit 1 will be emptied by 2008.
24 There will be residual contamination. Tim Rice 25 mentions that in paragraph 26 of his declaration.
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446 1 So these are ongoing, into the future.
2 And this is the proceeding where that gets looked at.
3 And the Board is correct that the 1996 GEIS simply did 4 not look at this issue. And, in any event, that GEIS 5 is now woefully out of date. And there really is no 6 end in sight for the update.
7 JUDGE WARDWELL: Regardless of how you 8 characterize the numbers, whether you characterize 9 with low, medium, or high or severe, the numbers are 10 what they are. And it's a question of how does that 11 relate to a dose limit. Isn't that the issue?
12 MS. MATTHEWS: That is part of it, but it 13 also goes to the New York resource. When you're 14 talking about a public health impact, you are also 15 talking about the impact to the resource itself.
16 And the groundwater is a New York 17 resource. The Hudson River is a New York resource.
18 And we have this radiological material into these two 19 resources. And that is a concern for New York State.
20 And that is an environmental concern that needs to be 21 looked at in this proceeding.
22 CHAIRMAN McDADE: Okay.
23 JUDGE WARDWELL: Thank you.
24 CHAIRMAN McDADE: Mr. Turk, did you have 25 something further?
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447 1 MR. TURK: Yes. And I forgot what the 2 question was that you were pursuing, my memory of what 3 you were pursuing and what you found out. I believe 4 your question went to whether unplanned releases were 5 considered or whether the Indian Point releases were 6 considered within the GEIS. Am I paraphrasing?
7 JUDGE WARDWELL: Yes. I think I remember 8 what I was saying. I was trying to say that GEIS was 9 based on an evaluation of all plants at that time that 10 didn't include the inadvertent releases. And then 11 when they were talking about saying, "Gee, the result 12 in exposures is all within NRC limits. Therefore, 13 generically we can consider it to be a category 1 14 issue that doesn't need to be addressed on a 15 site-specific basis.
16 MR. TURK: My answer is the GEIS does 17 address releases up to the point of exceeding NRC 18 limits. I cannot give you a specific reference to 19 show you that off-normal releases are included. I 20 would have to get that for you after this session, 21 after we go back to Washington. But I would point to 22 page 4-84 of the GEIS, which talks about radiological 23 impacts of normal operation.
24 And I won't contend, as the state 25 suggests, that spent fuel pool leaks are normal.
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448 1 However, that is within the scope of normal; i.e.,
2 non-accident, operation. I think that is the context 3 in which this discussion appears. The GEIS looks at 4 normal operations versus accident conditions.
5 And the GEIS says at 4-84 that "In 6 response to comments on the draft GEIS and the 7 proposed rule, the standard defining a small 8 radiological impact has changed from a comparison with 9 background radiation to sustain compliance with the 10 dose and release limits applicable to the activities 11 being reviewed."
12 And our position is that as long as Indian 13 Point is within NRC dose limits, then the impact has 14 been determined by the GEIS to be small. And that 15 would apply to the spent fuel leaks as well.
16 **Incidentally, I note that the state referenced 17 drinking water standards. It is my understanding that 18 the wells at which this level of radioactivity was 19 detected -- and this is a current operation issue, but 20 just for information, those are not drinking wells.
21 Those are monitoring wells.
22 There are no drinking wells in that 23 vicinity. And there is no claim by the state that any 24 members of the public are drinking water that is 25 contaminated with the levels of radioactive NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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449 1 contamination that they are addressing. **JUDGE 2 WARDWELL: But aren't they used --
3 MR. TURK: That is a current operating 4 issue.
5 JUDGE WARDWELL: But aren't they using it 6 similar to what is used in a hydrogeologic report that 7 Entergy submitted strictly as a baseline for 8 discussion purposes and not in any allegation, either 9 direct or implicit, implicit or explicit, in regards 10 to drinking water?
11 MR. TURK: I believe the two sides of the 12 room are using the same data. They're using the same 13 well data.
14 JUDGE WARDWELL: And they're using the 15 same comparison in regards to coming up with a handle 16 of to what magnitude are these levels. And oftentimes 17 it's compared to drinking water standards, regardless 18 of whether there is a drinking water activity taking 19 place now.
20 MR. TURK: That's correct.
21 JUDGE WARDWELL: And there's no guarantee, 22 isn't it true, that it won't be used as a drinking 23 water sometime in the future?
24 MR. BESSETTE: Your Honor, we would just 25 like to clarify we are not comparing our well samples NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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450 1 to drinking water samples. We're comparing it through 2 our radiological environmental program to appendix I 3 dose consequences. And, just to clarify --
4 JUDGE WARDWELL: There are no comments in 5 your hydrogeologic report in comparing detected levels 6 to drinking water standards?
7 MR. BESSETTE: Only to say that drinking 8 water standards don't apply, our dose evaluation and 9 radionuclide evaluations are compared in accordance 10 with our approved regulatory program for appendix I.
11 And, just one final comment, we don't 12 dispute New York's concern with this issue. We 13 believe it is a valid concern. However, it is not a 14 concern for this proceeding. **The New York's concern 15 over the resources is not an aging management issue.
16 Ms. Leary stated it all. When unit 1 empties its 17 pool, there is going to be their concern with the 18 remaining contamination from unit 1. That is simply 19 not an issue for this proceeding.
20 JUDGE WARDWELL: Thank you.
21 MR. BESSETTE: Thank you.
22 CHAIRMAN McDADE: Okay. I think we 23 understand the parties' views on that contention. New 24 York contention 29, "The environmental report fails to 25 address emergency preparedness and evacuation planning NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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451 1 for Indian Point and, thus, violates the requirement 2 of the National Environmental Policy Act."
3 The first question to New York is, why is 4 this inquiry not precluded in this proceeding by 10 5 CFR 50.47? And then, secondly, if it is an 6 environmental issue, why isn't it a category 1 issue?
7 Do you want to address first the 50.47?
8 Why isn't it precluded by 50.47?
9 MS. MATTHEWS: My colleague John Parker 10 will be addressing that, Your Honor.
11 MR. PARKER: John Parker for DEC, if it 12 pleases the Board. 50.47 is the requirement for 13 emergency preparedness planning. I think there is no 14 question about that. I also think there is no 15 question that that requirement is to be met for the 16 operation of a nuclear generating facility.
17 Nonetheless, that is the requirement for the plant.
18 We talk about the agreement with that, 19 with fixing the importance of this issue for the 20 environment. It is also discussed, however, as an 21 environmental issue with respect to the generic 22 environmental impact statement.
23 So yes, it is a requirement. Yes, there 24 are issues with respect to the criteria that must be 25 met. We have issues with that. And then it is a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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452 1 separate environmental impact issue recognized in the 2 generic EIS. **CHAIRMAN McDADE: Okay. But initially 3 under 50.47, this would be part of the current 4 licensing basis, part of the ongoing operations of the 5 facility and, therefore, outside the scope of a 6 license renewal proceeding, would it not?
7 MR. PARKER: I'm not sure if that is 8 accurate with respect to the question that there 9 really -- when NRC staff in 1996 looked at this issue, 10 there was really no question that it needed to be 11 addressed in the context of an environmental impact.
12 Evacuation planning is at the heart, 13 essentially a mitigating measure with respect to the 14 accidents at a nuclear power plant. And they 15 recognized that that was a significant environmental 16 impact. I don't think to say that if there is a 17 requirement that it be met, that it be met with 18 respect to FEMA's approval and NRC approval, that it 19 removes it from the aspects of the environmental 20 review, as NRC itself has acknowledged with what they 21 have done with respect to the comments they make in 22 the generic EIS.
23 CHAIRMAN McDADE: Okay. Specifically, at 24 56 Federal Register 64-967, hasn't the Commission 25 clarified 50.47 to make it clear that no new finding NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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453 1 on emergency preparedness will be made as part of a 2 license renewal decision?
3 So, that said, where do we get any 4 authority to revisit this issue here, as opposed to 5 the Commission's ongoing oversight of the operations 6 of Indian Point? Now, they need to make sure that 7 there is an updated adequate emergency plan at all 8 times. But the Commission has told us it's not part 9 of the license renewal process.
10 MR. PARKER: The State of New York is not 11 asking the NRC to make the reasonable assurance 12 determination of 50.47. We have proffered this 13 contention in the context of the environmental review 14 for its mitigative purposes for a variety of reasons.
15 We are not asking or challenging directly 16 all of the contents that would be used to meet the 17 criteria, 50.47, nor the safety determination which 18 must be made, both by FEMA and NRC. With respect to 19 that determination initially and the fact that it 20 doesn't have to be made in the relicense goes to the 21 mitigation of the environmental impacts or postulated 22 or a severe accident occur.
23 CHAIRMAN McDADE: Okay. But to the degree 24 that it would be considered an environmental issue, 25 why would it not be considered a category 1 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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454 1 environmental issue and, likewise, outside the scope 2 of the proceeding?
3 MR. PARKER: Excuse me. In this context, 4 the issue gets a little bit less clear for a variety 5 of important reasons. Number one is, as put forth in 6 the Williams declaration, the evacuation plan, the 7 meteorological emergency preparedness plan for Indian 8 Point units 2 and 3 has perhaps been one of the most 9 studied of the documents of its type with respect to 10 these facilities. And these reviews have uncovered 11 the unique nature of this region.
12 The unique nature is multi-fold. It deals 13 with topography. It deals with a variety of issues, 14 which we can discuss, that are covered in the Williams 15 declaration.
16 So, number one, yes, generically it was 17 addressed as saying it is generic for all. We believe 18 it is not generic for all, and we believe we have laid 19 that out.
20 Two, under the regulations, I think it is 21 subpart B to appendix A. The first paragraph 22 discusses the ten-year window with respect to the 23 generic EIS. And I would like to pull it out. This 24 also gets to the heart of yes, it was studied 25 comprehensively the last couple of years. And no, the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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455 1 ten-year review, which I am about to discuss, has not 2 occurred.
3 The regulations require the NRC on a 4 ten-year cycle it states, "The Commission intends to 5 review the material in the appendix and update it if 6 necessary. A scoping notice must be published in the 7 Federal Register, indicating the results of the NRC's 8 review and inviting public comments and proposals for 9 other areas that should be updated."
10 We believe that directly addresses the 11 issue here. We are in this situation where a 12 regulation is stale, where we are being asked to look 13 at conclusions reached a decade-plus ago on issues of 14 grave safety and mitigation with respect to the 15 environmental impacts of nuclear facility.
16 Yet, the agency that is requiring that of 17 us has failed to comply with the updated requirements.
18 The information that would have been or could have 19 been put into that context does exist.
20 The basic conclusions of those analyses 21 are put forward in the declaration of Ray Williams and 22 the incorporation by reference of the Wood report, 23 upon which it is based.
24 CHAIRMAN McDADE: Okay. Assume for the 25 sake of argument the NRC determined this to be a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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456 1 category 1 issue more than ten years ago, back in 2 1996. Doesn't it remain a category 1 issue unless and 3 until they issued new guidance on this? **MR. PARKER:
4 It is our position because this issue involves an NRC 5 regulation, it must be by its terms updated within ten 6 years, in essence, is akin to a sunset provision.
7 That these issues are so important and so crucial and 8 one is producing sunsets, it pulls out of that strict 9 view of further applicability.
10 CHAIRMAN McDADE: Let me ask the NRC 11 staff. There is a determination made specifically in 12 NUREG 1437 that this is a category 1 issue. That 13 said, one could argue that given the unique 14 circumstances surrounding Indian Point, if ever 15 something should not be treated as a generic issue 16 given the uniqueness of this particular site, it has 17 to do with emergency planning and evacuation planning 18 for Indian Point.
19 Simply because it is in NUREG 1437 does 20 not preclude us from revisiting the determination as 21 to its category 1 status, where in the regulation 22 would you point us that says we are bound to the 23 determination that it's a category 1 status.
24 Is there a regulation, as opposed to a 25 NUREG, that you can point us to?
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457 1 MR. TURK: The first regulation I would 2 point to is that a challenge to a regulation would 3 require a waiver petition. And the state has not 4 filed a petition for waiver of Commission regulations.
5 CHAIRMAN McDADE: Right. But at this 6 point, that is what I am asking. What is the 7 regulation? The NUREG 1437 isn't the regulation. So 8 it wouldn't require a waiver. So what I am looking 9 for is the regulation that underpins 1437.
10 Fourteen thirty-seven, is it not, is the 11 agency's interpretation? It's giving life to a 12 regulation. It's implementing a regulation. So I am 13 just asking where that regulatory basis is.
14 MR. TURK: The regulations in 10 CFR part 15 51 direct that the GEIS shall be complied with, not 16 complied with, but that establishes the issues for 17 consideration in an environmental impact statement to 18 be developed by the staff.
19 A category 1 issue would be treated as 20 stated in the GEIS. Category 2 issue would be a 21 site-specific evaluation. The GEIS determines this is 22 a category 1 issue. **CHAIRMAN McDADE: So the 23 regulation underlying the GEIS is 10 CFR part 50?
24 MR. TURK: Fifty-one.
25 CHAIRMAN McDADE: Fifty-one. Entergy, do NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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458 1 you have anything to add on this?
2 MS. SUTTON: Yes, Your Honor. In 3 particular, you're referring to 10 CFR section 4 51.53(c)(3)(i), which incorporates into the rule the 5 findings in the generic environmental impact statement 6 as well as appendix B to part 51, which does the same.
7 This Board does not have the authority to change the 8 regulations themselves absent a rulemaking. **CHAIRMAN 9 McDADE: You're saying we don't have the authority, 10 with or without rulemaking, since we can't make rules?
11 MS. SUTTON: No. That would be correct:
12 without a rule.
13 CHAIRMAN McDADE: Okay. So the Commission 14 can do it through rulemaking? We can't do it?
15 MS. SUTTON: That's correct, Your Honor.
16 CHAIRMAN McDADE: Okay. Do you have any 17 other? Okay.
18 MR. PARKER: One question quickly?
19 CHAIRMAN McDADE: Okay.
20 MR. PARKER: The issues raised, the 21 evacuation plan is used with respect to Indian Point 22 units 2 and 3 are not insignificant issues for the 23 communities of this area. As you probably well 24 understood, it has been an issue of great importance.
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459 1 difficulty and careful attention to detail that we 2 attempted to put together for you and your 3 consideration the reasons underlying why evacuation 4 planning should be reviewed in the context of this 5 proceeding. In that review, we looked at category 1, 6 category 2, and the sound analysis.
7 In essence, this is a mitigation issue.
8 We believe the Board is not precluded from 9 consideration of mitigation issues with respect to 10 impacts, particularly if postulated accidents or 11 severe accidents in the context of these proceedings.
12 In the --
13 CHAIRMAN McDADE: Can you lean into the 14 microphone, please?
15 MR. PARKER: I'm sorry. I'm kind of like 16 off kilter here. The Williams declaration at 17 paragraphs 15, 16, 24, 25, and 31 puts forth a series 18 of mitigation measures which we believe are directly 19 applicable to the comment I just made with respect to 20 the Board's authority to review mitigation and 21 mitigation requirements in the context of this 22 environmental review and any obligations underlying 23 it.
24 With respect to the generic EIS and the 25 situation with respect of the category 1 and category NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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460 1 2 issues we discussed earlier, all put into context by 2 Roni Franovich in her statement on the 19th of 3 September of last year, 2007. She is the Chief of the 4 NRC headquarters that is responsible for the 5 performance of the license renewal at Indian Point.
6 In essence, what she said was with respect 7 to that ten-year obligation, we had discussed earlier 8 if you want to assume that that is what controls you, 9 which we have addressed.
10 The NRC began that review in 2003. But in 11 2006, they really kicked it off in earnest. That is 12 what she said, in her words. And here we are. It's 13 2008. It's 12 years later. And it just underlies the 14 problem with trying to deal with the GEIS that's not 15 being complied with by the NRC as we see, but it does 16 not negate the Board's ability with respect to 17 mitigation under the proceeding, as we discussed 18 earlier.
19 CHAIRMAN McDADE: Okay. Thank you. I 20 think we understand the position of the parties with 21 regard to this contention, New York AG contention 22 number 30. NEPA requires the NRC review the 23 environmental impacts of the outmoded once-through 24 cooling water intake system used at Indian Point, 25 which causes significant heat shock, thermal discharge NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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461 1 impacts.
2 JUDGE WARDWELL: I think I would like to 3 start off if Entergy would be so kind to briefly 4 describe the history of the SPDES permit that 5 presently exists for your plant and in the process 6 demonstrate how that might or might not serve the 7 purposes of a 316(b) determination or a 316(a) waiver 8 from that determination under the Clean Water Act.
9 MS. ZOLI: Your Honor, I am not going to 10 start with ancient history.
11 JUDGE WARDWELL: Please. You have got to 12 get it. You move seats. You do whatever you need to 13 so everyone can hear you, including --
14 MS. ZOLI: Your Honor, I am not going to 15 start with ancient history, but I will answer your 16 question, which is grounded in 51.53(c). And the 17 question that we need to answer in the ER is the 18 provision says, "The applicant shall provide a copy of 19 a current Clean Water Act 316(b) determination and, if 20 necessary, a 316(a) variance in accordance with 40 CFR 21 part 125 or equivalent state permits and supporting 22 documentation." **And so the question is, have we done 23 that in the ER? We don't have to address here the 24 question of whether the 1987 permit is current because 25 New York has already conceded that. They have done NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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462 1 that in their scoping comments, and they have done it 2 in their petition on page 289. They actually use the 3 word "current" in referencing the permit.
4 It's also the case that as a matter of New 5 York law, a permit that is issued must comply with all 6 applicable requirements. All applicable requirements 7 include 316(a) and 316(b).
8 That New York statutory provision is 9 section 1708.01. And, just so it's in the record and 10 you have it, it states that the purpose of the chapter 11 is to create a state pollutant discharge elimination 12 system, or SPDES system, to ensure that the State of 13 New York shall possess adequate authority to issue 14 permits regulating the discharge of pollutants from 15 your existing outlets or point sources into the waters 16 of the state upon condition that such discharges will 17 conform to and meet all applicable requirements of the 18 federal water pollution control act, which is the 19 Clean Water Act.
20 So necessarily any state permit issued has 21 to comply with federal law. If it doesn't, New York 22 runs the risk that it will lose its authorization to 23 administer the Clean Water Act. That's also not 24 disputed.
25 Thirdly, the 1987 permit that was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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463 1 referenced in the ER, a copy of which was provided in 2 the LRA, actually records the compliance. In section 3 7, the permit states, "The Hudson River settlement 4 agreement, dated December 19th, 1980, is annexed to 5 this permit" --
6 JUDGE WARDWELL: It's dated what?
7 MS. ZOLI: "Dated December 19th, 1980, is 8 annexed to this permit as appendix 2 and is 9 incorporated herein as a condition to this permit.
10 The settlement agreement satisfies New York State 11 criteria governing thermal discharges." That phrase, 12 "New York State criteria governing thermal 13 discharges," despite what it sounds like, is the title 14 to part 704. **Part 704 includes not only the thermal 15 discharge requirements but also part 704.5, which is 16 the intake requirements. So the permit records 17 compliance.
18 Now, the HRSA expired. It was replaced by 19 consent orders. The consent orders extend into 1998 20 and in 1998 was replaced by a voluntary agreement by 21 the parties to continue to comply with a fourth 22 amended consent order. It's not much of a surprise.
23 Having gone back to court four times, they decided 24 they could work it out themselves this time.
25 And Mr. Little, who is the New York State NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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464 1 staff counsel for New York State, DEC staff counsel, 2 his affidavit submitted in this matter, this 3 declaration, in paragraphs 18, 19, and 20 records --
4 JUDGE WARDWELL: What is the date of this 5 voluntary agreement?
6 MS. ZOLI: The voluntary agreement 7 continued after 1998. It's recorded by the staff 8 counsel in their submission in the declaration in this 9 proceeding. It is also included in the FEIS.
10 The FEIS is referenced in the ER. It is 11 a staff document.
12 JUDGE WARDWELL: And this is an FEIS for 13 what?
14 MS. ZOLI: For the SPDES permit that was 15 issued. It's the New York State DEC staff document 16 that they issued. It's referenced in the ER. And it 17 states, "When the fourth amended consent order expired 18 on February 1st, 1998, the parties who were then 19 actively engaged in negotiations regarding elements of 20 the draft SPDES permits did not reach agreement to 21 continue with a fifth extension of the consent order.
22 "However, the generators agreed to 23 continue the mitigative measures included in the 24 continuing SPDES permit and provisions of the fourth 25 amended consent order until new SPDES permits were NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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465 1 issued to them."
2 This document was not only issued in 3 final. It went out to public notice and comment. And 4 that is on page 10 of 95 of the FEIS. **JUDGE 5 WARDWELL: And that document has no expiration date?
6 It's until this is resolved? Until the SPDES 7 controversy that's presently being litigated by the 8 8GL panel, whatever they're called?
9 MS. ZOLI: Right, in front of the 10 administrative law judges.
11 JUDGE WARDWELL: Right.
12 MS. ZOLI: The pending SPDES permit 13 proceeding. We have a panel of two administrative law 14 judges. And it is being litigated in front of them 15 now.
16 And so what we have, Your Honor, is a 17 continuous record from the HRSA in 1981 to date and 18 which confirms that the SPDES permit is both current 19 and effective. There is no dispute about this, no 20 reasonable dispute.
21 JUDGE WARDWELL: Hypothetically if it 22 could be shown that a voluntary agreement did not 23 continue the link with the original HSA, would, in 24 fact, you not have a valid 316(a) determination at 25 this point?
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466 1 MS. ZOLI: I think, Your Honor, you are 2 asking me whether we would then not have one.
3 JUDGE WARDWELL: Correct.
4 MS. ZOLI: Correct?
5 JUDGE WARDWELL: I thought I said that.
6 MS. ZOLI: And the answer is no, Your 7 Honor, because the permit is what the NRC is 8 authorized to look at. And the permit includes 9 section 7, which reflects the condition that the HRSA 10 complied with, provided the mitigative measures that 11 were necessary and complied with New York State law.
12 But, in addition, as a matter of New York 13 State law, New York cannot issue a permit which 14 doesn't include compliance with all of its provisions.
15 And so the mere fact that there is a SPDES 16 permit means that there is a current determination 17 with respect to all aspects of New York law that are 18 required to be in the SPDES permit. And New York 19 State DEC maintains that both 316(a) and 316(b) 20 determinations are required to be in SPDES permits.
21 So unless the permit were vacated, there 22 would be no credible position that what we have 23 submitted to date does not satisfy 51.53. And that is 24 the functional holding of the Entergy Vermont Yankee 25 case.
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467 1 CHAIRMAN McDADE: Okay. Basically 2 summarizing all of that, do you think this is outside 3 the scope of this proceeding?
4 MS. ZOLI: I do, Your Honor.
5 CHAIRMAN McDADE: Okay. The position of 6 the NRC staff, as I understood it, is that you do not 7 oppose the admissibility of its contention to the 8 extent that it challenges the adequacy of the heat 9 shock analysis provided in the ER.
10 Is it your view, the staff's view, that 11 the adequacy of the heat shock analysis provided in 12 the ER is within the scope of this proceeding? **MR.
13 CHANDLER: Well, Your Honor, I guess, to start with, 14 I should sort of explain how we arrived at that, the 15 decision that we wouldn't oppose it.
16 CHAIRMAN McDADE: Is the answer yes?
17 MR. CHANDLER: Well, I guess the answer is 18 yes. When the staff received the license renewal 19 application, the environmental report did not 20 explicitly state that the 316(b) determinations had 21 been met. And it also included an analysis of heat 22 shock impingement and entrainment.
23 And since that analysis would not be 24 required of the 316(b) determinations had been 25 included with the environmental report, the staff's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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468 1 understanding was that the SPDES permit did not meet 2 that requirement.
3 However, as counsel for Entergy explained, 4 the section 7 of the SPDES permit, which cites the 5 Hudson River settlement agreement and states that it 6 meets the state thermal discharge criteria, as the 7 staff has continued with its review, we have come to 8 the understanding that it does, in fact, meet the 9 316(b) requirements.
10 It wasn't readily apparent on the face of 11 the environmental report and the attached 12 documentation, but as we have read into this further 13 in reviewing Entergy's answer to the contentions and 14 also New York's reply, which does not rebut any of 15 what Entergy has asserted, we believe that it does, in 16 fact, satisfy those criteria.
17 JUDGE WARDWELL: So we're about to get 18 another letter from you saying that you now retract 19 and change your position on this?
20 MR. CHANDLER: Well, we are changing our 21 position on that now. Yes, Your Honor. This will 22 serve as that change in position.
23 JUDGE WARDWELL: Okay.
24 CHAIRMAN McDADE: So, again, just to make 25 sure I understand it, initially the answer to that was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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469 1 yes, it is within the scope. At that point you made 2 that determination because it was not clear that the 3 316 requirements had been met.
4 At this point you are satisfied that the 5 316 requirements have been met. So you are of a view 6 that because of that, it is now outside the scope of 7 this proceeding? **MR. CHANDLER: That is correct, 8 Your Honor.
9 CHAIRMAN McDADE: Okay. How does New York 10 respond to that?
11 MS. MATTHEWS: I don't even know where to 12 begin, Your Honor, but I will try. Let's talk about 13 --
14 CHAIRMAN McDADE: Okay. Try to begin 15 somewhere close to the end.
16 (Laughter.)
17 MS. MATTHEWS: I will try. Yes. I'm not 18 going to start back in 1980.
19 JUDGE WARDWELL: Let me ask questions if 20 that would help or would you rather --
21 MS. MATTHEWS: No. I'm okay. I'm okay.
22 Well, they do not satisfy 316(a) or 23 316(b). They have a present permit. They have a 24 permanent effect, which serves to help them. It 25 serves as a shield against an enforcement action.
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470 1 The department has exercised its 2 discretion to proceed with a SPDES renewal proceeding, 3 rather than an enforcement action or any other kind of 4 action. That proceeding is ongoing. That proceeding 5 is currently within our Office of Hearings. So that 6 is on its own track.
7 So they do not satisfy the 316(a) or the 8 316(b) requirements.
9 JUDGE WARDWELL: Can I interrupt quickly 10 just to cut to the chase?
11 MS. MATTHEWS: Sure. Go ahead.
12 JUDGE WARDWELL: You state that they do 13 have, though, a valid SPDES permit at this point.
14 MS. MATTHEWS: They have a permit that has 15 been extended for -- let's see -- 1987. It's a 16 21-year-old permit. And it has been extended under 17 our provision, which is similar to the federal 18 provision for an extension when you file a timely 19 application, yes.
20 JUDGE WARDWELL: And New York State could 21 have taken some other action during that time frame to 22 terminate that permit. Is that correct? Is that what 23 I heard you say in so many words, --
24 MS. MATTHEWS: Yes. And so this --
25 **JUDGE WARDWELL: -- which you decided not to?
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471 1 MS. MATTHEWS: This proceeding has been 2 ongoing since -- well, the DEIS, I believe, was in 3 1993. So this proceeding has been going on for quite 4 a long time. These are really complex issues that 5 date back to 1981, the ancient history with HRSA 6 agreement.
7 JUDGE WARDWELL: I understand that.
8 MS. MATTHEWS: This has been going on for 9 a long, long time. And now we are here and we are in 10 the DEC proceeding to resolve these issues.
11 CHAIRMAN McDADE: But given the fact that 12 this is a complex issue that has gone on for a long 13 time and that there may be other complex issues in 14 this case, why would we not just simply defer to the 15 ALJs in the New York State, who are already wrestling 16 with this? And they will make a determination as to 17 the heat shock. thermal discharge impact. Why should 18 we do it? Because of what we decide, they ultimately 19 could decide either to issue the permit or not issue 20 the permit.
21 And given the way the interaction between 22 the State of New York and the federal government on 23 the Clean Water Act, wouldn't that trump our decision.
24 MS. MATTHEWS: It doesn't trump the 25 decision. Make no mistake about it. New York's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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472 1 proceeding is well on its way and is ongoing. And New 2 York will certainly address the issue on its part.
3 That is where I would ask you to do the 4 New York job by any means. However, there is a 5 proceeding now. There is an application for a 20-year 6 license renewal. And the law, federal law, requires 7 this agency to look at the environmental impacts. And 8 one of those environmental impacts is a heat shock, 9 thermal discharge impact.
10 And the DEIS is very clear the regulation, 11 51.71, the analysis is very clear, that the compliance 12 with Clean Water Act is not a substitute for and does 13 not negate requirements for the NRC to weigh all 14 environmental effects of the proposed action, 15 including the degradation of any of water quality 16 consider them alternatives to the action that are 17 available for reducing adverse effects.
18 So for the NRC to do its job, it needs the 19 information from the applicant in the environmental 20 report. And, again, the applicant is required to 21 submit accurate and complete information in the 22 environmental report.
23 We have submitted the declaration of Dr.
24 Dilks. He has demonstrated in great specificity and 25 great detail that they do not meet the water quality NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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473 1 criteria for thermal discharges into the Hudson River.
2 They have not disputed that. They have 3 just countered with their legal argument about how 4 since they have a permit, therefore, they are fully in 5 compliance. And New York rejects that position.
6 CHAIRMAN McDADE: Okay. Contention 31, 7 "NEPA requires the NRC review the environmental 8 impacts of the outmoded once through cooling water 9 intake system used at Indian Point, which causes 10 massive impingement and entrainment of fish and 11 shellfish." Do you have any questions with regard to 12 this?
13 JUDGE WARDWELL: Yes, I'm not done yet, 14 but I think it applies to both of these. The 15 questions that I have apply to both. Your quote of 16 51.71, could you repeat that again for me, please?
17 MS. MATTHEWS: Yes. It's 51.71(d).
18 Actually, I apologize. It's footnote 3. It's note 3.
19 JUDGE WARDWELL: Go ahead and say that.
20 MS. MATTHEWS: "Compliance with the Clean 21 Water Act is not" -- and I paraphrase just a little 22 bit. **JUDGE WARDWELL: That's fine.
23 MS. MATTHEWS: It's nearly exact. Did you 24 want me to continue?
25 JUDGE WARDWELL: Yes, I want you to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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474 1 quickly just say it.
2 MS. MATTHEWS: 51.71(d).
3 JUDGE WARDWELL: Yes.
4 MS. MATTHEWS: Footnote 3.
5 JUDGE WARDWELL: You're paraphrasing now.
6 MS. MATTHEWS: "Compliance with the Clean 7 Water Act is not a substitute for and does not negate 8 the requirement for the NRC to weigh all environmental 9 effects of the proposed action, including the 10 degradation, if any, of water quality, and to consider 11 alternatives to the action that are available for 12 reducing adverse effects."
13 And then it goes on to say, "If there is 14 an assessment of the aquatic impacts in the permitting 15 authority, then the NRC will consider that 16 assessment."
17 And then there is another track where 18 there is not an assessment, and the NRC will establish 19 one on its own. So it really doesn't matter.
20 If they are correct -- and we don't 21 believe that they are correct -- then the NRC still 22 has to establish its own assessment.
23 JUDGE WARDWELL: Doesn't that footnote 24 refer to the fact that all it's saying is that the NRC 25 is not relieved of their obligation to look at the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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475 1 impacts of the proposed action?
2 MS. MATTHEWS: Yes.
3 JUDGE WARDWELL: And that proposed action 4 is a license renewal. Isn't that correct? **MS.
5 MATTHEWS: Yes.
6 JUDGE WARDWELL: It's not the thermal 7 discharge or the impingement, either one. The 8 proposed action is a license renewal. It also in 9 other areas states that, in fact, no action by the NRC 10 can circumvent any Clean Water Act requirement. Is 11 that correct?
12 MS. MATTHEWS: It's the environmental 13 effects of the proposed action. Yes.
14 JUDGE WARDWELL: And that's right. But 15 they have to take any water quality standard that is 16 promulgated in accordance with the Clean Water Act on 17 its face value in that assessment. Isn't that 18 correct?
19 MS. MATTHEWS: Yes.
20 JUDGE WARDWELL: So wouldn't that include 21 the heat shock and the thermal discharge as a 22 controlling factor that cannot be changed in their 23 overall assessment of the environmental impact? **MS.
24 MATTHEWS: I didn't follow that last part. I'm sorry.
25 **JUDGE WARDWELL: That you agree that no action by NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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476 1 the NRC can alter any water quality standard 2 promulgated by the Clean Water Act?
3 MS. MATTHEWS: Yes.
4 JUDGE WARDWELL: Thermal discharge limits 5 are a water quality standard by the Clean Water Act.
6 Is that correct?
7 MS. MATTHEWS: Yes.
8 JUDGE WARDWELL: Therefore, no action by 9 the NRC can change that in their overall assessment.
10 And all footnote 3 is saying is that they still have 11 to do the assessment, but in that assessment they have 12 to hold fixed any water quality standard associated 13 with the Clean Water Act, don't they?
14 MS. MATTHEWS: Yes, but can I jump ahead 15 just one moment because I think what Your Honor is 16 referring to is staff's position -- and, by the way, 17 I should address the terms of condition, too. I went 18 over that a little quickly.
19 The staff's position, at least in their 20 papers, in their response to us, that they said they 21 had agreed to this contention, to the admissibility of 22 the contention, but not as far as the requirement of 23 cooling towers.
24 Is that where Your Honor is headed? May 25 I go there?
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477 1 JUDGE WARDWELL: I'm not heading, no.
2 MS. MATTHEWS: Okay. All right.
3 JUDGE WARDWELL: I'm not heading there at 4 all.
5 MS. MATTHEWS: Okay. **JUDGE WARDWELL:
6 I'm making a more general approach that --
7 MS. MATTHEWS: May I?
8 JUDGE WARDWELL: I am asking and trying to 9 clarify what footnote 3 means. And I think I have 10 gotten what I needed in the response for the 11 clarification of what footnote 3 means. And that is 12 the process I was going through in the questioning.
13 MS. MATTHEWS: The NRC obligation to 14 review the environmental impacts of the proposed 15 action.
16 JUDGE WARDWELL: They still have to review 17 the environmental impacts?
18 MS. MATTHEWS: Yes, yes.
19 JUDGE WARDWELL: I understand that.
20 MS. MATTHEWS: That is absolutely right.
21 MS. ZOLI: Your Honor, if I may, footnote 22 3 relates to a section which is about NRC's 23 obligations. And what is within the scope here is not 24 that section and that footnote. The question is 25 whether we had complied with section NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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478 1 51.53(c)(3)(ii)(b) as it relates to the ER.
2 JUDGE WARDWELL: I'm going right there 3 right now, exactly.
4 (Laughter.) **JUDGE WARDWELL: Staff, do 5 you agree that the only requirement as far as the ER 6 is concerned is a valid permit that serves the purpose 7 of the 316(a) and (b) Clean Water Act requirements?
8 MR. CHANDLER: Yes, we do.
9 JUDGE WARDWELL: Do you, New York, have 10 any comments in regards to that or do you contend that 11 that is not correct?
12 MS. MATTHEWS: Could you ask that question 13 again, Your Honor?
14 JUDGE WARDWELL: That the only 15 requirements of the NRC regulations of an application 16 are to provide a valid permit that's in accordance 17 with the Clean Water Act or if they can't, then they 18 have to describe each act, thermal impingement, et 19 cetera, but in this case, Entergy has claimed that 20 they have a valid SPDES permit. **You have stated and 21 argued that, in fact, you agree with that. And so the 22 only obligation now by the regulations as far as 23 Entergy is concerned in their ER is to submit that.
24 And that they have done. Is not that correct?
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479 1 question. May I confer for a moment?
2 (Pause.)
3 MS. MATTHEWS: We don't agree that the 4 SAPA -- and by "SAPA," I mean State Administrative 5 Procedure Act, the New York State Administrative 6 Procedure Act. We don't agree that the SAPA-extended 7 permit satisfies the 316 requirement. So we don't 8 accept their premise at all.
9 I think that answers the question that you 10 pose. But if it hasn't, please let me know.
11 JUDGE WARDWELL: That's fine, but you 12 still said that they have a valid SPDES permit.
13 MS. MATTHEWS: Only for the purposes of 14 protecting them against an enforcement action for lack 15 of a permit because you cannot discharge into New 16 York's waters without a permit. So they have a permit 17 to do that, and they cannot be prosecuted for that.
18 **But as far as this proceeding and as a way of 19 evaluating the environmental impacts of this action 20 and indeed what is going on in the Hudson River now, 21 it does not reflect reality. It is a legal --
22 JUDGE WARDWELL: But isn't that within the 23 power of New York State to determine --
24 MS. MATTHEWS: And we are doing that.
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480 1 that.
2 JUDGE WARDWELL: But in lieu of that, that 3 SPDES permit still applies for Entergy's case?
4 MS. MATTHEWS: It applies to protect them 5 against discharging without a permit, yes.
6 JUDGE WARDWELL: Thank you. **MS.
7 MATTHEWS: But it does not mean that there are no 8 adverse environmental impacts. As we sit here today, 9 there are adverse impacts. And we have demonstrated 10 those adverse impacts.
11 JUDGE WARDWELL: Thank you.
12 MS. MATTHEWS: May I have one moment, Your 13 Honor, just for one final point? May I?
14 CHAIRMAN McDADE: Well, before you do, 15 I've got a question to the staff. In answer to Judge 16 Wardwell's question with regard to 51.53. And 17 specifically under 51.53(c)(3)(ii)(b), which talks 18 about providing a copy of a current Clean Water Act 19 determination and, if necessary, a 316 variance in 20 accordance with 40 CFR part 125 or equivalence, "If 21 the applicant cannot provide these documents, it shall 22 assess the impact of the proposed action on fish and 23 shellfish resources resulting from heat shock and 24 impingement and entrapment."
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481 1 of the other requirements of 51.53? In other words, 2 it seems like you're saying that if you supply the 3 permit, that's all I have to do with regard to this, 4 as opposed to in (c)(2) describing in detail the 5 modifications affecting the environment, affecting 6 affluents that affect the environment.
7 I mean, isn't this an additional 8 requirement, as opposed to an exemption from the other 9 requirements of this particular section?
10 MR. CHANDLER: Well, I think, Your Honor, 11 this requirement, the one that you cited, 12 51.53(c)(3)(ii)(b) refers only to heat shock, 13 impingement, and entrainment. That doesn't mean that 14 there aren't other analyses that are required.
15 For example, Entergy in the environmental 16 report evaluates, analyzes the closed cycle cooling 17 alternative.
18 JUDGE WARDWELL: Let me quickly fix a 19 point. And isn't that what footnote 3 is referring to 20 in regards to those additional analyses that are 21 required or -- **MR. CHANDLER: I believe, Your Honor, 22 footnote 3 in 51.71 refers to the staff's review. And 23 the staff will include all of those analyses in the 24 supplemental environmental impact statement. **JUDGE 25 WARDWELL: And to complete the link that Entergy has NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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482 1 to provide that information, as stated, for example, 2 in (c)(2) of 51.53, that information that you need to 3 do those analyses to meet footnote 3?
4 MR. CHANDLER: Well, Your Honor, I believe 5 that we do the analysis independent of them. So that 6 while the (3)(ii)(b) requirement forecloses and if 7 they attach a valid permit, they are not required to 8 include heat shock, impingement, and entrainment 9 analysis, but we will still do that analysis on our 10 own in the supplemental environmental impact 11 statement.
12 CHAIRMAN McDADE: What would you do it 13 based on? I mean, generally speaking, you do your 14 environmental impact statement based on the 15 environmental report that is submitted by the licensee 16 or the applicant.
17 Here in 51.71, it talks about your 18 obligations in the environmental impact statement.
19 And it says that if there is a permit, that is one of 20 the factors that you take into consideration, but it's 21 not everything.
22 And now what you seem to be saying is that 23 the only thing that you're going to get from Entergy 24 is a copy of the permit. So what is your other source 25 of information, then?
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483 1 MR. CHANDLER: If I may take one moment, 2 Your Honor?
3 MS. ZOLI: Your Honor, maybe I actually 4 respond?
5 CHAIRMAN McDADE: Please?
6 MS. ZOLI: Because I want to clarify that 7 the environmental report contains an entire chapter on 8 entrainment, impingement, and heat shock. It also 9 references documents.
10 So it's 20-odd pages of information. It 11 references thousands of pages of supporting 12 information, including -- this is the appendix to the 13 DEIS, sir. This is the DEIS. This is one of the 14 references that is summarized in the environmental 15 report.
16 There can be no doubt that there is a 17 complete discussion in the ER with respect to each of 18 these issues and subjects.
19 CHAIRMAN McDADE: But there are two 20 issues. The first issue is, is this a prior 21 discussion within the scope of our proceeding? And 22 then the next is, is the discussion of this issue in 23 the ER by Entergy, then, adequate?
24 And it was my understanding before I came 25 in here today that the staff was of the opinion that:
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484 1 one, it was within the scope and then the issue was 2 joined as to the adequacy of it based on what was 3 presented by New York and what was presented by 4 Entergy, that the statements made by the staff today 5 indicated that based on the existence of an adequate 6 316 permit, that it no longer is in play. It is 7 outside the scope of the proceeding.
8 And that is where I was getting a little 9 bit lost because I guess I was at least initially 10 reading the requirements of 51.53 a little bit 11 differently than Judge Wardwell and was thinking that 12 the subpart B there put an additional requirement on 13 Entergy, rather than relieve them of a requirement.
14 Can you clear up this confusion on my 15 part?
16 MR. CHANDLER: Well, I can certainly try, 17 Your Honor. The staff has read that --
18 CHAIRMAN McDADE: And you're saying that 19 I am so confused that you're not confident that you 20 can do anything to help.
21 MR. CHANDLER: I certainly misspoke there, 22 Your Honor. The staff has read this paragraph B in 23 the same way that Judge Wardwell has, which is that if 24 they supplied the permit, that isn't the only analysis 25 of those particular impacts they have to do. That NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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485 1 doesn't mean there aren't other analyses that are 2 required, as I said before, the closed cycle cooling 3 alternative, which they included. **But with respect 4 only to heat shock, impingement, and entrainment, a 5 valid SPDES permit and a valid termination foreclosed 6 the requirement for them to do that analysis in the 7 environmental report.
8 And if I could address your earlier 9 question about how the staff would conduct its 10 analysis in the SEIS? Well, as counsel for Entergy 11 has just pointed out, their environmental report does 12 contain a large amount of information. **And so this 13 would be a rather unusual case, I suppose. But the 14 staff in the course of doing its review sends requests 15 for additional information to the applicant, 16 regardless of the -- well, I suppose it's based, to 17 begin with, on the materials in their environmental 18 report.
19 So if they had only submitted a SPDES 20 permit and done no analysis whatsoever in the 21 environmental report, the staff would still be 22 requesting information from them in order to complete 23 our own review that will go in the SEIS.
24 CHAIRMAN McDADE: And if it were truly 25 outside the scope of this proceeding, they could tell NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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486 1 you to pound salt?
2 MR. CHANDLER: Well, except that we would 3 still need the information for our own personal review 4 --
5 CHAIRMAN McDADE: Right.
6 MR. CHANDLER: -- well, not our own 7 personal review but --
8 CHAIRMAN McDADE: But that's my question.
9 If they are not required to provide it by the 10 regulation, they're not required to provide it by the 11 regulation. **So your reading of the regulation and 12 the one proffered by Judge Wardwell was that they are 13 not required to provide it. They have provided it.
14 And it was pointed out they provided significant 15 amounts of it.
16 And it is going to be more than enough for 17 you in your view to prepare the environmental impact 18 statement, but what New York wants to say is "We 19 disagree."
20 And we presented testimony for an expert 21 that say that isn't adequate and, therefore, we would 22 like to have a hearing on the adequacy of that data.
23 And I'm not getting into whether or not we 24 agree or disagree that it's adequate, whether they've 25 raised a genuine issue. I am just trying to get at an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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487 1 understanding of whether or not we need to get there, 2 whether it is within the scope.
3 And at this point I don't want to belabor 4 it. I think I understand the position of Entergy. I 5 understand the position of staff and New York. And we 6 just have to decide for ourselves how the regulation 7 is most appropriately read and then to determine the 8 impact of the declaration submitted by New York on 9 this.
10 With that, unless there is something very 11 quick, we could move on to the next contention.
12 MR. TURK: I would make a very quick 13 statement, if I may, Your Honor?
14 CHAIRMAN McDADE: Please?
15 MR. TURK: What the Board has to review is 16 the contention as framed by New York. New York did 17 not -- if you look at contention 30, they did not say 18 that the analysis in the environmental report is 19 deficient. They said, as they said to you today, that 20 Entergy does not have a permit. And then they went on 21 to talk about what are the impacts of operation.
22 They are required under contention 30 23 requirements to point to the application and say, 24 "What is wrong with the analysis?" They didn't do 25 that.
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488 1 So they really are trying to have it both 2 ways. They are trying to say there is no permit. And 3 you still have to look at the impacts, not even 4 looking at their ER.
5 CHAIRMAN McDADE: New York, do you have 6 some comments on that?
7 MS. MATTHEWS: If I might just for a 8 moment? Two points. First of all, that they have 9 submitted such extensive information on both of these 10 issues means that they have weighed their legal 11 argument based on 316(a) and 316(b). And we are 12 entitled to question them about that and to challenge 13 that. And we believe that we have.
14 Now, most of the information that Entergy 15 submitted came in response to our petition. There 16 were many declarations that they submitted on the 17 impingement and entrainment issues.
18 So that came in after their environmental 19 report. But there was information in the 20 environmental report. And yes, we did include that in 21 our contentions.
22 MS. ZOLI: Your Honor, we think that's 23 incorrect at every level. First of all, in terms of 24 what the ER contains, the ER reflects the GEIS and the 25 FEIS, the SPDES permit, the HRSA, and the consent NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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489 1 orders, and the draft permit reflected the entire data 2 set of information that New York accepted as final in 3 terms of making its draft SPDES permit decision.
4 So it cannot be adequate in terms of New 5 York's decision-making and somehow inadequate in terms 6 of information that NRC is entitled to use to be able 7 to reach its determinations.
8 But all of those, the NRC's 9 determinations, have nothing to do with the scope of 10 admissibility. The scope of admissibility for an 11 issue is determined by 51.53. And it says that we are 12 entitled to provide the draft SPDES permit. And if 13 the applicant cannot provide these documents, it shall 14 assess impacts.
15 I don't think that there is a reasonable 16 way of interpreting that provision as requiring us to 17 do both. However, as a matter of prudence, Entergy 18 did do both. And that allows the NRC to be able to 19 fulfill their obligations with respect to the SEIS.
20 That does not mean that it equates to admissibility.
21 In fact, if you look at the contentions, 22 the statement of contentions reflects NRC's 23 obligations, not ours. So, in fact, as they're pled, 24 the contentions are inadmissible.
25 CHAIRMAN McDADE: Okay. Thank you.
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490 1 One thing. And, you know, with regard to 2 contention 32, which is basically cut in this same 3 mold, very similar, I think the issues raised with 4 regard to what have been discussed by us -- and we 5 understand the parties' positions.
6 JUDGE WARDWELL: You mean 31.
7 CHAIRMAN McDADE: Thirty-one, yes.
8 JUDGE WARDWELL: I think you said 32, 9 didn't you?
10 CHAIRMAN McDADE: Okay. And there's just 11 one thing that I would like to do at this point. You 12 know, again, we discussed the impact of the letter 13 that was sent and whether or not New York would desire 14 additional time.
15 Today there was a change of position on 16 the part of the NRC staff and, again, would indicate 17 that by Monday of next week if there is anything 18 further that New York wishes to submit based on that, 19 we would give them the opportunity to do so. So if 20 you could do that by the same time of next Monday?
21 Contention 32 is that "NEPA requires that 22 the NRC review the environmental impacts and the 23 outmoded once through cooling water intake system used 24 at Indian Point which harms endangered species and 25 candidate-threatened species.
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491 1 I have no questions concerning this 2 contention.
3 JUDGE WARDWELL: I have no questions.
4 JUDGE LATHROP: No.
5 CHAIRMAN McDADE: Okay. We seem to be at 6 a good breaking point. I think we understand the 7 positions of New York, the NRC staff, and Entergy with 8 regard to the contentions put forth by New York.
9 Unless there is something further from 10 either or any of these groups, we can take a break, 11 again with the understanding that New York can make an 12 additional submission on those two points by Monday.
13 Does New York have anything in closing?
14 MR. SIPOS: Your Honor, if I may, just 15 briefly. John Sipos, Assistant Attorney General.
16 There was one other housekeeping matter, 17 I believe, concerning New York's designation at the 18 end of its petition under 2.309 concerning a 19 contention that had been proffered by Riverkeeper, 20 specifically Riverkeeper contention EC-2. And both 21 staff and Entergy have raised questions about that.
22 And so that the record is clear, New York, 23 as a sovereign state, is at this time unable to see 24 complete authority to Riverkeeper to speak for New 25 York on that point. And that is simply a function of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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492 1 state sovereign issues.
2 We fully support that contention. We 3 believe it is an appropriate contention. It's a 4 SAMA-based contention. But we cannot make that 5 designation right now that New York would respectfully 6 reserve the right depending on how this proceeding 7 goes forward to advise the Board and the Commission on 8 the application with respect to that contention as a 9 possibility in the future.
10 CHAIRMAN McDADE: Just one other 11 housekeeping matter in that regard. After we get 12 through the contention admissibility phase, once the 13 Board makes a determination as to the admissibility of 14 contentions, there may well be contentions within 15 individual intervenor that we view are appropriate to 16 consolidate. And we will do so if we make that 17 determination.
18 Likewise, there may well be at that point 19 contentions made by more than one intervenor that are 20 so similar that we would consolidate them as well. At 21 that point, if we were to do that, we would ask those 22 intervenors who had submitted those contentions to 23 make a decision among themselves as to who would take 24 the lead as to that particular contention.
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493 1 an agreement with regard to that, it would then be 2 incumbent on the Board to assign one of those 3 intervenors to take the lead with regard to that 4 particular consolidated contention.
5 MR. SIPOS: Understood, Your Honor. One 6 other point I just wanted to reference on what I 7 mentioned before. And I apologize for not mentioning 8 it. The state's position is informed, in part, by an 9 order by the NRC at 4 NRC 20. It's an ALAB decision.
10 See Public Service Commission of Indiana, Marble Hill 11 generating station.
12 And it recognizes that governmental bodies 13 have different interests in litigation than do private 14 parties, not that they're mutually exclusive but they 15 might have different views on how it is to litigated.
16 And there is also provision 42 USC 17 20.21(l) that would also, we submit, apply to the 18 state.
19 Thank you.
20 CHAIRMAN McDADE: Okay. Thank you.
21 At that point, what I would propose to do 22 is we take a ten-minute break. New York can be 23 excused. We would then start with Portland at 4:00 24 o'clock. Anyway, I believe Portland would be next at 25 4:00 o'clock. **Before we do break, I do want to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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494 1 commend everybody who has presented here the last 2 couple of days. This would have been impossible to 3 do. It took a long time as it was. Had you not been 4 extremely prepared, it would have been impossible to 5 get through it, even in the time that we did.
6 This is extremely complex. There is a 7 large volume of paper involved, a large volume of 8 regulations. And we really do appreciate how prepared 9 you were and how ready you were to be able at a 10 moment's notice to answer the somewhat far-ranging 11 questions and sometimes vague questions that we had.
12 So we appreciate it.
13 Thank you very much. And for the NRC 14 staff and the applicant, we'll see you back in ten 15 minutes. And thank you, New York.
16 (Whereupon, the foregoing matter went off 17 the record at 3:54 p.m. and went back on the record at 18 4:03 p.m.)
19 CHAIRMAN McDADE: Okay, we're back in 20 session on the matter of Entergy Nuclear Operations, 21 Indian Point Nuclear Generating Units 1 and 2, Docket 22 Number 50-247 and 50-286 LR. We have with us 23 representatives of the NRC staff and the Applicant.
24 They've already been identified for the record. We 25 also have with us representatives for the Town of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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495 1 Cortlandt. Could you identify yourself for the 2 record, please?
3 MR. RIESEL: Yes, my name is Daniel Riesel 4 of the law firm of Sive, Paget & Riesel and I have 5 with me my colleague, Jessica Steinberg. We, along 6 with Thomas F. Wood, the Town Attorney, represent the 7 Town of Cortlandt.
8 CHAIRMAN McDADE: Okay, I appreciate it, 9 thank you very much.
10 MR. RIESEL: I'm prepared to proceed in 11 the pattern of the last two days, your Honor, if that 12 is acceptable.
13 CHAIRMAN McDADE: Okay.
14 MR. RIESEL: The Town of Cortlandt, as you 15 may gather, surrounds Indian Point 1, 2 and 3, 34 16 square miles form an arc, to the north, east and south 17 around Indian Points 1, 2 and 3. It's 28,000 people 18 live in close proximity to Indian Point 1, 2 and 3.
19 And about 87 of our residents work at Indian Point.
20 Corlandt does not oppose the relicensing 21 of Indian Point. However, we maintain that the plant, 22 if it is to be operated and relicensed, must be 23 operated in a safe manner and maintained in a manner 24 that will not create an endangerment, and I use that 25 word technically, an increased risk to the members of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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496 1 the -- of our community.
2 Indian Point, that is the operating 3 facilities have a -- are a member of our community and 4 they have been making valuable contributions to the 5 community. Nevertheless, we are concerned that the 6 continuation of the facility -- the facility continue 7 to be operated in a manner that is consistent with the 8 applicable rules and regulations and the -- not 9 present, as I say, an endangerment.
10 Now, I think it was Boswell who said it 11 takes a hanging and a fortnight to refocus your 12 position. Although the last two days haven't been a 13 hanging, they have been very obstructive and they have 14 refocused some of our -- some of our positions.
15 We are prepared to withdraw several -- two 16 of our contentions, Contention 2 and Contention -- on 17 page 3 of our opening brief, and Contention 2 of our 18 miscellaneous contentions. Other than that, our 19 contentions are essentially the contentions that you 20 have heard from the State. We would endorse their 21 positions.
22 However, there is one issue that I would 23 like to emphasize and it is particularly ironic to me 24 that the spent fuel pools which have taken up a 25 considerable amount of attention here, an also appear NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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497 1 to be mentioned in the Environmental Report. There is 2 less discussion in the Environmental Report on the 3 spent fuel pools than the extinct Kichawak Indians and 4 that I take it -- the reason for that is a ruling of 5 the NRC in Oyster Creek and in similar -- and in 6 similar pronouncements, that the NRC will not consider 7 -- will not consider the effect of terrorism on the 8 spent -- on the spent fuel pools and any resulting 9 disaster that could evolve from that from sabotage or 10 an ariel attack.
11 Now, that is an issue which I think 12 presents a significant problem for resolving this very 13 critical issue. It's almost ironic that this is the 14 issue that dominates most of the thought in the Town 15 of Cortlandt. That we are a few miles away from the 16 scene of one of the greatest disasters, a plane that 17 attacked one of the World Trade Center buildings, flew 18 over this facility and the spent fuel pools are not, 19 as the reactors are in hardened sites, but are in 20 sites that are -- that are in a site that is really 21 unimproved, unprotected from such sabotage or ariel 22 attack.
23 The Environmental Report which I suppose 24 will form the basis of a supplemental Environmental 25 Impact Statement or will be the basis of it, which of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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498 1 course of in itself is somewhat contrary to standard 2 NEPA procedures where the -- at least the draft 3 Environmental Impact Statement proceeds and such 4 substantive decision making process and as the Supreme 5 Court has told us, accompanies, accompanies the 6 decision making process and planning process at the 7 earliest point of time and therefore, we have the 8 Supreme Court in Andrus v. the Sierra Club endorsing 9 the CEQ guidelines that say that document must be 10 completed prior to any decision making process.
11 So particular attention might be given to 12 the ER in this matter. The ER says that in 2006 the 13 -- an area was cleared or designated for dry-cask 14 storage of the spent fuel rod and as far as we can 15 see, there has been no further progress in hardening 16 that facility or in creating dry-cask storage which 17 would go a long way to avoiding accidental fires for 18 drainage from the pools or some other mishap or actual 19 sabotage.
20 That is an issue which I suggest must be 21 reached somehow in this public proceeding because we 22 are in a proceeding where as you can see has drawn 23 quite a bit of attention and I think that what we 24 really need to do is to explore the critical issues.
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499 1 suggested during a SAMA proceeding or in accidents or 2 in the Age Management Plan but somehow we must get to 3 that critical issue and examine it, especially, of 4 course, because we do have a very truncated ER on the 5 subject. Thank you.
6 CHAIRMAN McDADE: Does the staff wish to 7 respond?
8 MR. TURK: No, your Honor.
9 CHAIRMAN McDADE: Does Entergy wish to 10 make an opening statement with regard to the Cortlandt 11 contentions?
12 MR. BESSETTE: No, your Honor, we stand 13 ready to answer any questions or clarifications you 14 may have.
15 CHAIRMAN McDADE: Okay, thank you. The 16 first contention of Cortlandt is that the licensing 17 renewal application does not provide sufficient 18 detailed information regarding technical and safety 19 issues as required by 10 CFR Part 54. Now, the 20 response of the NRC staff is that Cortlandt asserts 21 that the applicant does not include threshold 22 requirements but makes non-specific conclusionary 23 statements. Specifically, of Cortlandt, can you 24 elaborate for us on what you believe should have been 25 there that you believe was not there?
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500 1 MR. RIESEL: The plans that are in the 2 report are generally promises to carry our programs as 3 opposed to the actual programs as applied to Indian 4 Point 2 and 3, and perhaps 1.
5 CHAIRMAN McDADE: Okay, any specific one 6 that you wish to point us out as an example?
7 MR. RIESEL: No, your Honor, I can't do 8 that at this time.
9 CHAIRMAN McDADE: Okay, I mean, in your --
10 you talked about the flow accelerated corrosion. I 11 believe we've talked about that in other contentions 12 as well, earlier in these proceedings.
13 MR. RIESEL: Yes, that's -- I was looking 14 at that as a somewhat separate point, but that is a --
15 that's a fairly good example because if you look at 16 what the -- what the Applicant has done, the Applicant 17 has essentially said, "We've got this program," and I 18 think they have a paragraph on that program, and they 19 say, and they promise to follow the program. As the 20 State Attorney General, Assistant Attorney General 21 addressing this point said, "That really is a promise 22 to have a program as opposed to a detailed program 23 which experts could examine and go over piece by 24 piece".
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501 1 process that I think we're entitled to have.
2 CHAIRMAN McDADE: Okay, are there any 3 other specifics with regard to Contention 1 that you 4 would like to draw to our attention as examples at 5 this point in time?
6 MR. RIESEL: No, your Honor.
7 CHAIRMAN McDADE: We've read your papers 8 and, again, as you indicated, the contentions that 9 you've put forward to a degree overlap with 10 contentions of other parties and we have, you know, 11 over the last couple of days, had an extensive 12 discussion of many of these issues with the Attorney 13 General of the State of New York.
14 I just wanted to make sure you had an 15 opportunity at this point if there were any others 16 that you specifically wanted to draw to our attention 17 that you could do so.
18 MR. RIESEL: Your Honor, I think you have 19 gone over this at some length with the staff, with the 20 Applicant and the very forthcoming State 21 representatives.
22 CHAIRMAN McDADE: Okay. Now, you 23 indicated that you chose to withdraw Contention Number 24 2, so we'd move to Cortlandt Number 3, which is that 25 the license renewal application does not specify an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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502 1 aging management plan to monitor and maintain all 2 structures, systems and components associated with the 3 storage, control and maintenance of spent fuel in a 4 safe condition in a manner sufficient to provide 5 reasonable assurance that such structures, systems, 6 and components are capable of fulfilling their 7 intended uses.
8 Okay, again, is there anything 9 specifically not in your papers that you would like --
10 or that are in your papers that you would like to 11 highlight for us with regard to the deficiencies in 12 these plans?
13 MR. RIESEL: Yes, your Honor. As our 14 expert has said, George Sansoucy, an experienced 15 engineer, experienced in these areas, the only real 16 way, the only safe way to handle the spent fuel rods 17 is either dry-cask storage on site or being shipped 18 off-site to a safe repository. That is assuming 19 you're going to continue to generate these spent fuel 20 rods, there's just two choices to do it in a sound 21 management plan, in furtherance of a sound management 22 plan.
23 And we do not have any, I think, details 24 of when we will move these rods that are in the Pools 25 2 and 3 and -- 2 and 3 into those dry-cask storage NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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503 1 facilities. Although we have some indication that 2 that is something that the Applicant and perhaps, the 3 NRC have endorsed as a concept and certainly there is 4 no -- that may be the only feasible alternative here 5 to handle these fuel rods because there are no 6 indication, is my understanding, that there is any 7 offsite storage available now and certainly now and in 8 the foreseeable future.
9 MR. WEBSTER: How do you respond to 10 Entergy's statement that in fact, they do have an 11 aging management plan for those spent fuel pools 12 already submitted in Table 3.5 2-3?
13 MR. RIESEL: That is for the maintenance 14 of the pools and the pools, we have proffered evidence 15 -- proffered evidence to the fact is inherently 16 unsafe.
17 MR. WEBSTER: Thank you.
18 CHAIRMAN McDADE: And if I understand the 19 gist of your contention is that there's absolutely 20 nothing you can do as long as you're talking about 21 long-term storage in a spent fuel pool that will 22 adequately control aging.
23 MR. RIESEL: Adequately. Yes, I mean 24 there are things you can do to mitigate the danger but 25 not sufficiently or not adequately and that's the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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504 1 trust of the Sansoucy affidavit.
2 CHAIRMAN McDADE: Okay, in this particular 3 case with regard to the Cortlandt Contention 3, we're 4 read the papers of the NRC staff with regard to this.
5 Is there anything further that you would like to add 6 that are not in the papers?
7 MR. ROTH: No, your Honor.
8 CHAIRMAN McDADE: Okay, with regard to the 9 response by Entergy, again, we've read your papers.
10 The answer to the Cortlandt -- and again, I mean, many 11 of these issues we've discussed with the Attorney 12 General over the last two days and, you know, we don't 13 need to just ask the same question over again, because 14 it's posed in a different format. Is there anything 15 that you would like to add that has not been addressed 16 and that you would like to with regard to Cortlandt 17 Contention 3?
18 MR. BESSETTE: No, your Honor. We agree 19 with you that the License for Renewal Application does 20 include aging management programs for the spent fuel 21 pool as we noted in our response and many of the 22 issues raised by petitioner are Category 1 issues 23 already considered by the staff and are excluded from 24 this proceeding, including wet storage and dry storage 25 of spent fuel during the license renewal term.
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505 1 CHAIRMAN McDADE: Okay, with regard to 2 Cortlandt miscellaneous Contention Number 1, the 3 impact of the local economy of Indian Park Units 2 and 4 3 are not relicensed.
5 MR. RIESEL: An issue that the town has 6 debated amongst itself and the town is really a 7 political entity that has -- really comes to this 8 proceeding with some difference of opinion on the 9 facility and there is a considerable concern that we 10 examine the issues of not licensing this facility for 11 its relicensing its facility. As to the effect on the 12 community, the state has made the argument that -- the 13 state has made the argument that it will drive up --
14 if you do not relicense this facility, it will drive 15 up property values.
16 I think one of the issues that has struck 17 me is that that might be so but how long would it take 18 to decontaminate and remove the existing facilities on 19 this site? That's an issue which I think is very 20 critical. For a practical matter, this is probably 21 some of the most -- could be some of the most 22 expensive property in the United States.
23 It's west of the railroad tracks. It's at 24 a critical junction in the river. However, if the 25 facility is not licensed, and not cleaned up, that is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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506 1 fully totally remediated within a very short period of 2 time, that would have a negative effect on property 3 values in the Town of Cortlandt.
4 CHAIRMAN McDADE: And it's your contention 5 that that has not yet been adequately addressed in the 6 Environmental Report submitted by Entergy.
7 MR. RIESEL: Yes.
8 CHAIRMAN McDADE: Okay. Is there anything 9 specifically in the Environmental Report that you wish 10 to emphasize that has not been emphasized already in 11 your papers or for that matter that has been referred 12 to in your papers but you would like to emphasize here 13 for us?
14 MR. RIESEL: Your Honor, aside from the 15 spent fuel pool, and aside from a concept of promising 16 to work out -- work out Aging Management Plans, I 17 think we have covered every issue in the last two days 18 to almost a painful degree and a very thorough degree, 19 I might say. So I don't have anything further to add.
20 CHAIRMAN McDADE: Okay, with regard to 21 Cortlandt Miscellaneous Contention Number 2, you 22 indicated that that is withdrawn. Cortlandt 23 Miscellaneous Contention Number 3 that the license 24 application fails to address the catastrophic 25 consequences of the potential terrorist attack on the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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507 1 aging Indian Point Reactors. Again, this is a matter 2 that we've discussed over the past couple of days. Is 3 there anything further that you would us to take into 4 consideration?
5 MR. RIESEL: I just reread Oyster Creek 6 and Oyster Creek talks about a particularized study 7 and indicates that in that instance, the Board, the 8 Commission will proceed by rulemaking. And that seems 9 to be a long time in coming. We think it's the wrong 10 decision. We think Indian Point is so unique, being 11 situation out on a promontory, sort of a big target, 12 critical area, and because it is literally within 13 eyesight of downtown Manhattan, you could probably see 14 downtown Manhattan on a clear day, from the end of 15 Krueger's or Indian Point, that it is unique and 16 should receive a unique consideration in this 17 proceeding, Oyster Creek notwithstanding.
18 CHAIRMAN McDADE: Okay, one issue that I 19 did want to raise with Cortlandt and an option that 20 Cortlandt has, as you have indicated, the contentions 21 that you have put forward are similar to in many 22 respects, the contentions put forward by other 23 interveners in this particular proceeding. The Town 24 of Cortlandt, as a government entity, has a unique 25 position in that it can proceed either under 2.309 as NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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508 1 a party with individual contentions or under 2.315.
2 Under 2.315, you would have the opportunity to present 3 evidence, to cross examine, to submit findings of fact 4 on contentions that other parties had introduced.
5 That you would not be limited to specific contentions.
6 And the question has arisen in our earlier 7 proceedings, it is the position of the NRC staff and 8 of Entergy that for governmental entities, it's 9 basically and either/or, but that it can't proceed 10 under both 2.309 and under 2.315.
11 Also understand that under 2.3.9 within 12 individual contentions that it may be necessary for us 13 to consolidate and to appoint a lead for a particular 14 contention. And under those circumstances, the 15 question is, has the Town of Cortlandt given 16 consideration to whether or not they would prefer to 17 proceed in this proceeding under 2.309 or under 2.315 18 and so that's the initial question.
19 MR. RIESEL: Well, your Honor, we have 20 given some consideration to that and we've eluded to 21 that in our papers. We do not believe that this is an 22 either/or issue. It seemed to me it would be ironic 23 that if we are a party we would have less rights than 24 a non-party. So our position is, we should enjoy the 25 benefit of both sections. If you were to rule that we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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509 1 had to elect and if you were to rule against us on the 2 -- what is generally -- call it the spent fuel rod 3 pool issue, then we would elect to proceed under 23.5.
4 CHAIRMAN McDADE: Okay, well, let me ask 5 it, perhaps, a little bit different way. Assume for 6 the sake of argument and again, no final decision has 7 been made, but assume for the sake of argument that we 8 were to conclude that it was an either/or, that either 9 you were in pursuant to 2.309 or in pursuant to 2.315, 10 which would be your first choice?
11 MR. RIESEL: 2.315.
12 CHAIRMAN McDADE: Okay. Anything further 13 that you would like to address during the course of 14 this afternoon?
15 MR. RIESEL: No, your Honor.
16 CHAIRMAN McDADE: I was going to say this 17 morning which shows that I've got a very warped sense 18 of time after sitting here for the last two days.
19 MR. RIESEL: It has been a long two days.
20 We've been here, too.
21 CHAIRMAN McDADE: Okay, thank you very 22 much, sir. Thank you. Okay, Connecticut? Could you 23 introduce yourself, please?
24 MR. SNOOK: Certainly. Thank you, your 25 Honor. My name is Robert Snook, Assistant Attorney NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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510 1 General for the State of Connecticut, representing 2 Richard Blumenthal, Attorney General of Connecticut.
3 As the New York Assistant Attorney General started 4 yesterday, I've also been asked to extend my thanks 5 from Mr. Blumenthal to this panel and to Entergy and 6 also to the NRC staff, for the fine work and the 7 opportunity that has been granted us to consider these 8 very important matters in the public forum so that we 9 can all address these issues and build an appropriate 10 record.
11 We are also -- I've also been specifically 12 instructed to say that the State of Connecticut stands 13 with its sister governmental agencies, particularly 14 the Westchester County and the State of New York.
15 These are very important concerns. In my 15 plus 16 years of government service, I have been on both sides 17 of the table with respect to the New York Attorney 18 General's office. Some cases we've worked together, 19 some cases we're on opposite sides.
20 In this case, we are not only 21 unequivocally on the same side, we were here first.
22 We started in 2001 with Indian Point. It was only 23 some time later that the New York AG's office got as 24 exercised as we did about it. And part of the reason 25 for this is that our sovereign interests and the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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511 1 public in the State of Connecticut are directly 2 involved.
3 Indian Point is not a minor issue for 4 Connecticut. One-third of the population, somewhere 5 in excess of one million people, one-third of the 6 population of Connecticut resides within the 50-mile 7 congestion pathway zone and any evacuation of any 8 significant body within the 10-mile or greater area 9 would directly impact Connecticut. There would be the 10 significant movement or I might add attempted movement 11 of people into Connecticut in case of an actual attack 12 or emergency.
13 These would -- these issues directly 14 effect Connecticut. Furthermore, as I have heard both 15 yesterday and today, there was some discussion of the 16 differences between EPA and NRC in terms of wind 17 dispersion modeling and things of that nature. I have 18 had responsibilities with respect to Long Island Sound 19 and other issues involving the State of Connecticut, 20 its environmental protection, one of which involved 21 EPA wind direction modeling from a cement factory in 22 the Hudson River area.
23 I can assure you that it is well-known 24 that in certain wind and weather conditions, if there 25 were an incident or attack on Indian Point, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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512 1 significant amount, perhaps even the majority of any 2 airborne material would come straight at me. It would 3 go towards Connecticut, towards the west. Those are 4 the prevailing wind patterns. Buffalo, New York and 5 arguably even Albany, New York, has a less direct 6 impact in certain weather conditions than Hartford.
7 So Connecticut is directly involved. And as a 8 consequence, I have been instructed by the Attorney 9 General to point out that there are two or three very 10 important issues here.
11 Yes, we have more of an interest in Indian 12 Point in many different ways and yes, we support fully 13 the comments made by both Westchester and the State of 14 New York so far and we would adopt their contentions 15 to the extent we are permitted to do so. We have, 16 however, proffered two contentions of our own. In our 17 paper, they are referred to as B and C, some people 18 refer to them as 1 and 2. I'm perfectly happy, 19 whatever they're called, and these are legal 20 contentions. All the factual support is identified in 21 the materials and the citations to the material. Much 22 of it, in fact, is in our C material in this public 23 record. And furthermore, they are directly related to 24 NEPA.
25 I am aware that much of this material is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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513 1 duplicative. I do not wish to waste this Board's time 2 or anyone else's. In many ways we've covered this 3 material. I would like to point out two or three very 4 minor points, just so we can move along. I recognize 5 that colleagues from Entergy and the NRC staff who 6 have provided very balanced and reasonable responses 7 to our contentions that are raised by the State of 8 Connecticut. In fact, I'd point out they're very 9 polite and very appropriate responses, that they are 10 concerned that the contentions with respect to 11 terrorists and incidents involving spent nuclear fuel, 12 that's our first one, and evacuation protocols, that's 13 our second one, are outside the scope, the proper 14 scope of a relicensing proceeding.
15 I fundamentally and respectfully disagree 16 for the following reasons. First of all, I think we 17 are all, particularly the attorneys here, aware that 18 I must raise these issues here in order to preserve 19 any rights of appeal. And we have significant 20 concerns with the whole idea of using Category 1 and 21 Category 2, that the policy is that the NRC have used 22 are unique but we think have some issues. We 23 understand this Board is bound by precedent and bound 24 by the Commission. We do want to preserve our rights 25 to appeal these issues in the fullness of time.
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514 1 Beyond that, though, even if you look at 2 10 CFR 51 in certain Category 1 cases, if there are 3 unique and specific material, and specific information 4 that provides important changes, yes, these issues, 5 even if they're otherwise have been considered generic 6 and have been considered in the GEIS, can in fact, be 7 raised. We have heard repeatedly about how Indian 8 Point is unique.
9 What I'm here to day is that the 10 population and the demographics and they unique 11 topography and circumstances of Indian Point, part of 12 those are in Connecticut and they are very unique to 13 us as well. In fact, for our perspective, the 14 evacuation and the spent nuclear fuel pool issues at 15 Indian Point are more of a concern to Connecticut than 16 the ones are in the Millstone Facilities which are in 17 Connecticut because of their unique population and 18 unique location of these facilities. They are most 19 definitely not generic. For example, we would point 20 out that in the Marsh case, and my citations are all 21 contained in my briefs or my petition and my reply 22 brief and in the Utahans' case. The decision making 23 has to include the environmental issues. These 24 environmental issues are, of course, set out in NEPA.
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515 1 impacts, they include, for example, socio-economic 2 impacts which are often in the NRC regs in 10 CFR 51.
3 They are often included as Category 2. So those 4 aren't even Category 1. And those are related to the 5 evacuation. Evacuation effects socio-economic.
6 Socio-economic is broadly a Category 2. I note some 7 exceptions.
8 In this regard, these issues are 9 controlled by NEPA and ought to be reviewed. Now, 10 starting with the spent nuclear fuel, we have 11 approximately 1,000 units, 1,000 assemblies, I 12 understand there, so a few hundred more from Unit 1 13 which I'm going to ignore because it's not in the 14 renewal licensing. We have perhaps as many, another 15 1,000 for another 20 years additional operation of 16 this facility. Yucca Mountain, I've been at -- I've 17 been under Yucca Mountain. I can assure you that 18 there's only a finite amount of space there. We had 19 discussions with both the NRC there as well as the 20 French National Team and others. And they've all said 21 the same thing, yes, there's a certain amount of --
22 it's a large facility, but not all Indian Point can go 23 there, and if you license this for another 20 years, 24 you're going to have, not only some in Yucca Mountain, 25 assuming it's open, but you're going to have Yucca NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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516 1 Mountain without the mountain right at Indian Point 2 and that's a substantial issue of interest to 3 Connecticut because primarily of the accident or 4 terrorism issue.
5 We do fundamentally disagree with the 6 position that terrorism is too attenuated, that it is 7 something generic, that it is something that has been 8 considered before and we do not have to talk about it 9 any more. We say the situation at Indian Point is 10 fundamentally different for several reasons. As 11 Cortlandt mentioned, one of the airplanes at least 12 flew directly over the facilities. They know where we 13 live. They know where the facility is. They have 14 expressed, as my citations in my brief point out, 15 repeated interest in attacking US infrastructure and 16 they have even made threats against nuclear facilities 17 and it's entirely possible they're talking about this 18 one. We think that that's unique and needs to be 19 addressed in the context of this relicensing because 20 that will extend the threat period for another 20 21 years.
22 I would also point out with respect to the 23 evacuation as I had mentioned earlier, that we have 24 significant changed in Connecticut on this. One, 25 population is changing, two, the Connecticut NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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517 1 Transportation Safety Review Board and its 20-year 2 extended plans making significant changes to the 3 infrastructure in Connecticut. Part of this is with 4 respect to, in fact, among other things potential 5 evacuation issues. I don't think I'm -- I don't think 6 I can talk you out of it. It's good to let everyone 7 know that we're dealing with important issues. If we 8 move people the technical term is using both barrels.
9 That means, you open up an interstate so that both 10 lanes go in the same direction to move people out. I 11 point out that it is now public record that FEMA wants 12 to use the I-84 and 95 as both barrels out and the 13 Merritt Parkway as one lane would be coming in towards 14 Indian Point for their recovery and service --
15 emergency service vehicles.
16 As I personally have pointed out, we have 17 an issue with that because the West Rock Tunnel is 18 nine feet high and our response vehicles are 13 feet 19 high. As a consequence, these are the issues that we 20 are attempting desperately to get resolved. The 21 comment has been made in the documents by Entergy that 22 there are other procedural mechanisms to do that that.
23 Mr. Blumenthal has made it very clear, our 24 responsibilities are to raise these issues in every 25 possible forum.
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518 1 If they get struck down in one, no 2 problem, we can appeal it and move on. I will not 3 only raise them in these forum but it's also important 4 for us to recognize evacuation protocols, not as an 5 isolated thing but as something going forward in 20 6 years, we have a unique situation here, but that 7 situation is changing.
8 I'd also point out that as of now, it 9 doesn't work. Interstate 95 is designed for 80,000 10 VDTs, Vehicle Daily Trips. We're up to 140,000. We 11 test our emergency evacuation protocols very day and 12 we fail at rush hour. These are matters of great 13 importance to the State of Connecticut and not 14 adequately identified or addressed in the GEIS and, 15 therefore, should be done now. I understand that 16 Oyster Creek, the Vermont case and other cases raise 17 these issues and feel that they are too far removed.
18 I understand this panel may feel compelled to follow 19 in that direction.
20 I would respectfully point out that we 21 believe that there are unique and specific 22 circumstances at this facility which give this Board 23 the opportunity to, in a sense, consider these issues 24 outside of the classic Category 1 because of these 25 unique circumstances. And I am available to answer NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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519 1 any questions.
2 CHAIRMAN McDADE: Okay, specifically with 3 regard to Contention B, the first question has to do 4 with the spent fuel pools and the possibility of 5 terrorist attack. You have drawn a distinction 6 between the decision of the Ninth Circuit at Diablo 7 Canyon and the decision of the Commission in Oyster 8 Creek. Are there any factual distinctions between the 9 circumstances here and the circumstances in Oyster 10 Creek that you believe would allow this panel to not 11 follow the precedent of Oyster Creek at this level.
12 MR. SNOOK: Yes, your Honor, respectfully, 13 we do feel that there are importances, again -- the 14 important differences. Again from the perspective of 15 a terrorist attack, those who are experts in this area 16 consider that there are many things that are looked at 17 by terrorists. In doing so, we are not free to 18 discuss them all here. Some of them, in fact, are 19 classified.
20 The high profile targets, targets that are 21 well-known to which they have adequate information, 22 and targets which would have a distinct political 23 impact. The New York environment is distinctly so.
24 Indian Point, there are strong indications which I'm 25 not at -- opportunity to discuss here that some of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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520 1 information about Indian Point is well-known to those 2 who would seek to do harm to the United States and its 3 economic infrastructure. And in fact, the situation 4 as Cortlandt pointed out, that Indian Point's spent 5 nuclear fuel facilities are in fact, vulnerable and 6 compared to the dry-cask facilities in Connecticut, 7 they are, in fact, even -- the planned one which 8 hasn't been built yet will also be someone more 9 vulnerable. Therefore, it would be unique.
10 CHAIRMAN McDADE: Okay, with regard to the 11 spent fuel pools and the possibility of equipment 12 failures, are there any facts here specifically that 13 you would like to draw our attention to whether 14 addressed in your papers or not but would like to 15 emphasize that would distinguish this from the Vermont 16 Yankee case?
17 MR. SNOOK: No, other than what's been 18 said in our papers.
19 CHAIRMAN McDADE: Okay, with regard to 20 Contention C, that has to do with the emergency 21 planning and the evacuation, the staff response is 22 that pursuant to 10 CFR 50.74 it is not necessary in 23 the context of a licensing renewal for seeding to have 24 a specific decision based on that and again, this is 25 very similar to Contention 29 by New York, just as the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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521 1 previous contention was very similar to Contention, I 2 believe it was 27 of New York and we have discussed 3 this and heard a great deal about the positions of the 4 NRC staff and Entergy with regard to these, but is 5 there anything else that you would like to add with 6 regard to the applicability of 50.74 on the evacuation 7 plans and whether it is properly or not properly 8 within the scope of this relicensing proceeding.
9 MR. SNOOK: The evacuation plans, of 10 course, being one issue, changes in population as 11 being another but we're also thinking of the socio-12 economic impacts of an evacuation, which we have not 13 yet seen fully categorized. The GEIS actually that's 14 referred to, some of it is a Category 1, some of it is 15 a Category 2. I regret that in my reply brief and in 16 my initial petition we talk about the dislocation that 17 is caused by an evacuation. That is the term we tend 18 to use in Connecticut, emergency response to refer to 19 the socio-economic effects. That is not immediately 20 apparent and obvious from the text of my petition.
21 Therefore, I wanted to bring that up here this 22 morning, this afternoon.
23 CHAIRMAN McDADE: Okay, thank you. At 24 this point in time, is there anything further that the 25 NRC staff would like to say with regard to Connecticut NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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522 1 Contentions B or C?
2 MS. MIZUNO: No, your Honor.
3 CHAIRMAN McDADE: And again, to the degree 4 that you've already said it in response to New York 5 Contentions 27 and 29, there's no need to repeat it.
6 If we've forgotten it already, we're in big trouble.
7 So with regard to Entergy, with regard to Contentions 8 B and C.
9 MS. SUTTON: We have nothing further, your 10 Honor.
11 CHAIRMAN McDADE: Okay, one of the issues 12 raised by Connecticut also was the possibility of a 13 waiver pursuant to 2.335 due to the unique and special 14 circumstances here. Is there anything further that 15 you would like say with regard to the request for 16 waiver by Connecticut and the scope of that waiver?
17 MR. SNOOK: With respect to the waiver or 18 the 2.315 issue, if I could just make the following 19 comment; we looked at this as something like a 20 waterfall. We wanted to be interveners under 2.309.
21 SR. SPEC. AGENT MULLEN: I'm sorry, I 22 didn't hear you.
23 MR. SNOOK: We looked at this as something 24 of a waterfall. The first issue is whether we --
25 2.309 getting our contentions in. Admittedly we took NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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523 1 the contentions that were difficult and we felt that 2 we could credible issues that were specific to 3 Connecticut so that we wouldn't keep repeating the 4 same things as everyone else.
5 To the extent that those are permitted, 6 that's fine. If, in fact, we are -- there's some 7 difficulty with that, I understand from the rules that 8 we have a period of time to proceed under 2.315(c) if 9 we are not given a rider in 2.309. And then 10 furthermore with respect to a waiver petition, one if 11 it was necessary we reserve the right to file such if, 12 in fact, the Board felt a separate waiver of this was 13 necessary.
14 CHAIRMAN McDADE: Okay, well, just so at 15 least I'm clear as to what you're doing, there's a few 16 different issues involved here. First of all, as far 17 as your role in the proceeding, the role in the 18 proceeding could be either under 2.309 as a party or 19 under 2.315 as an interested government entity.
20 Either way, the scope of the proceeding would be 21 exactly the same.
22 It would be set out by the contentions 23 that were admitted. You would, under 2.315 have the 24 opportunity to present evidence, to cross examine, to 25 offer proposed findings of fact, et cetera, with NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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524 1 regard to contentions offered by any party. With 2 regard to the waiver under 2-335, that would be a 3 waiver in order to expand the scope of the proceeding, 4 to say that the scope of the proceedings, given unique 5 circumstances here, as currently configured under the 6 regulations, would be -- would not appropriate carry 7 out the intent of those regulations and that, 8 therefore, the scope of the proceedings should be 9 expanded.
10 Now, as I understood it, Connecticut 11 indicated that it was considering the filing of a 12 2.335 waiver and in an order that we issued back on 13 November 21st, of 2007 in connection with the petition 14 for a waiver by another litigant in this proceeding.
15 We laid out specifically what the steps were, what a 16 waiver petition would need to include. And it is 17 Connecticut's position that, one, first of all, you 18 want to see what the scope of the proceeding is based 19 on admitted contentions and at that point in time, you 20 would view it appropriate and timely to file a 21 petition under 2.335 --
22 MR. SNOOK: Yes.
23 CHAIRMAN McDADE: -- if appropriate to 24 expand the scope of the proceeding.
25 MR. SNOOK: Yes, your Honor.
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525 1 CHAIRMAN McDADE: Okay, what is the 2 staff's position as far as the timing of any petitions 3 under 2.335? By when must they be filed in order to 4 be timely?
5 MR. TURK: I don't have an answer for you 6 at the moment, your Honor.
7 CHAIRMAN McDADE: Okay, does Entergy?
8 MR. BESSETTE: Your Honor, because they 9 had said that they weren't seeking a 2.335 petition at 10 this time or waiver, we weren't prepared to address 11 it. We could look at the regulations and get right 12 back to your Honor.
13 CHAIRMAN McDADE: Well, I guess what we'll 14 do is leave it this way, at this point in time there 15 won't be any further discussion with regard to that.
16 If and when Connecticut determines it would be 17 appropriate to file a petition for a waiver under 18 2.335, at that point in time, both the NRC staff and 19 Entergy would have an opportunity to comment both on 20 the substance of the request for the waiver and also 21 on the timeliness of it. And at this point in time, 22 there's no indication one way or the other as to what 23 the view of the Board would be with regard to that and 24 again, we don't know when -- when or if it would be 25 filed. Do you have any other questions with regard to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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526 1 Contention B or C?
2 JUDGE WARDWELL: No.
3 CHAIRMAN McDADE: Okay, does the staff 4 have any other comments with regard to any of the 5 matters taken up with regard to Connecticut?
6 MS. MIZUNO: No, your Honor.
7 CHAIRMAN McDADE: Does Entergy?
8 MR. BESSETTE: No, your Honor.
9 CHAIRMAN McDADE: Okay, do you have 10 anything further?
11 MR. SNOOK: No, your Honor, thank you.
12 CHAIRMAN McDADE: Okay, again, thank you 13 very much. First of all, I want to apologize for 14 keeping you here. I know based on our schedule, you 15 anticipated that you would be out of there 16 considerably before now and we do appreciate your 17 patience as we got through the lengthy discussions we 18 had and the many questions with New York and we do 19 appreciate your patience in being here and the 20 professionalism of the presentation that you made.
21 Thank you very much.
22 Okay, at this point in time, it is a 23 quarter of 5:00. We are not going to get very far 24 with regard to Riverkeeper this evening and we 25 apologize to Riverkeeper as well, as certainly they NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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527 1 anticipated getting further. Ms. Curen, do you want 2 to start or would you just as soon wait until 9:00 3 o'clock in the morning to start?
4 MS. CUREN: We'd prefer to start in the 5 morning, Judge.
6 CHAIRMAN McDADE: You'd prefer to start in 7 the morning.
8 MS. CUREN: Yes.
9 CHAIRMAN McDADE: Okay, and just to 10 maintain continuity, rather than just simply getting 11 started, you know, and then getting run out of here 12 relatively quickly, I think that's appropriate.
13 Really the earliest we can start in the morning 14 unfortunately, is about 9:00 o'clock. So we propose 15 to stand in recess then until 9:00 o'clock tomorrow, 16 and again, I apologize for not being able to get to 17 you sooner as we did anticipate that we would be 18 starting with you today.
19 Before we break, are there any 20 housekeeping matters that the NRC staff would like to 21 bring to our attention or to resolve since, my golly, 22 we're getting done early here today? We actually have 23 to kill some time.
24 MR. TURK: No, we don't, your Honor.
25 CHAIRMAN McDADE: From the standpoint of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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528 1 Entergy?
2 MR. BESSETTE: No, your Honor.
3 CHAIRMAN McDADE: That being the case, we 4 --
5 JUDGE WARDWELL: For security, will the 6 building be open at 8:00 tomorrow also to clear the 7 downstairs?
8 CHAIRMAN McDADE: 8:30.
9 JUDGE WARDWELL: No, the building open to 10 clear the security -- the screening downstairs.
11 CHAIRMAN McDADE: It starts at 8:00.
12 JUDGE WARDWELL: Starts at 8:00. So they 13 can be ready to go into this door at 8:30. Thank you.
14 CHAIRMAN McDADE: Okay, thank you. We're 15 in recess till 9:00 o'clock tomorrow morning.
16 (Whereupon, at 4:49 a.m. the hearing in 17 the above-entitled matter recessed to reconvene at 18 9:00 a.m. on March 12, 2008.)
19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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