ML080740259
| ML080740259 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 03/12/2008 |
| 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-20 | |
| Download: ML080740259 (220) | |
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: Wednesday, March 12, 2008 Work Order No.: NRC-2070 Pages 529-747 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433
529 1 UNITED STATES OF AMERICA DOCKETED 03/14/08 2 + + + + +
3 NUCLEAR REGULATORY COMMISSION 4 + + + + +
5 ATOMIC SAFETY AND LICENSING BOARD PANEL 6 444444444444444444444444444447 7 In the Matter of: 5 8 ENTERGY NUCLEAR OPERATIONS, 5 Docket No. 50-247-LR 9 INC. (Indian Point Nuclear 5 and 50-286-LR 10 Generating Units 2 & 3) 5 ASLBP No.
11 5 07-858-03-LR-BD01 12 444444444444444444444444444448 13 14 Richard J. Daronoco Courthouse 15 Courtroom 200 16 111 Dr. Martin Luther King Jr. Boulevard 17 White Plains, New York 18 19 Wednesday, March 12, 2008 20 9:00 a.m.
21 22 BEFORE:
23 LAWRENCE G. McDADE, Administrative Law Judge, Chair 24 DR. KAYE D. LATHROP, Administrative Judge 25 DR. RICHARD E. WARDWELL, Administrative Judge NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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530 1 APPEARANCES:
2 On Behalf of the Applicant:
3 KATHRYN M. SUTTON, ESQ.
4 PAUL BESSETTE, ESQ.
5 MARTIN J. O'NEILL, ESQ.
6 of: Morgan, Lewis & Bockius LLP 7 Counselors at Law 8 1111 Pennsylvania Avenue, N.W.
9 Washington, D.C. 20004 10 (202) 739-5738 (Sutton) 11 (202) 739-5796 (Bessette) 12 FAX 739-3001 13 ksutton@morganlewis.com 14 pbessette@morganlewis.com 15 martin.oneill@morganlewis.com 16 17 18 ELISE N. ZOLI, ESQ.
19 ROBERT H. FITZGERALD, ESQ.
20 of: Goodwin Procter, LLP 21 Exchange Place 22 53 State Street 23 Boston, Massachusetts 02109 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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531 1 APPEARANCES: (cont.)
2 On Behalf of the Nuclear Regulatory Commission:
3 SHERWIN E. TURK, ESQ.
4 BETH N. MIZUNO, ESQ.
5 DAVID E. ROTH, ESQ.
6 KIMBERLY A. SEXTON, ESQ.
7 CHRISTOPHER C. CHANDLER, ESQ.
8 Office of the General Counsel 9 Mail Stop - O-15 D21 10 U.S. Nuclear Regulatory Commission 11 Washington, D.C. 20555-0001 12 13 On Behalf of the Intervenors:
14 Riverkeeper, Inc.:
15 PHILLIP MUSEGAAS, ESQ.
16 VICTOR TAFUR, ESQ.
17 Staff Attorneys 18 Riverkeeper, Inc.
19 828 South Broadway 20 Tarrytown, New York 10591 21 (914) 478-4501 22 FAX 478-4527 23 www.riverkeeper.org 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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532 1 DIANE CURRAN, ESQ.
2 of: Harmon Curran Spielberg & Eisenberg, LLP 3 1726 M Street, N.W., Suite 600 4 Washington, D.C. 20036 5 (202) 328-3500 6 FAX 328-6918 7 DCurran@HarmonCurran.com 8
9 Hudson River Sloop Clearwater, Inc.:
10 MANNA JO GREENE 11 Director 12 STEPHEN FILLER 13 MICHELLE LEE 14 Board Members 15 Hudson River Sloop Clearwater, Inc.
16 112 Little Market Street 17 Poughkeepsie, New York 12601 18 Connecticut Residents Opposed to Licensing of 19 Indian Point (CRORIP):
20 NANCY BURTON 21 147 Cross Highway 22 Redding Ridge, Connecticut 06876 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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533 1 TABLE OF CONTENTS 2
3 Opening Statement of Riverkeeper . . . . . . . 534 4 Applicant Response . . . . . . . . . . . . . . 539 5 Board Questions . . . . . . . . . . . . . . . . 540 6 Opening Statement of Clearwater . . . . . . . . 648 7 Staff Response . . . . . . . . . . . . . . . . 658 8 Contentions from Connecticut Residents 9 Opposed to Relicensing of Indian Point 10 (CRORIP) . . . . . . . . . . . . . . . . 713 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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534 1 P R O C E E D I N G S 2 9:01 A.M.
3 CHAIRMAN McDADE: The proceeding is now in 4 session. We're back in the matter of Entergy Nuclear 5 Operations, Indian Point Nuclear Generating Units 2 6 and 3, the license renewal applications, Docket Nos.
7 50247 and 286LR.
8 We're going to start this morning with the 9 discussion of Riverkeeper. We have representatives 10 from Riverkeeper here. If you could please, identify 11 yourselves for the record.
12 MR. MUSEGAAS: Certainly, Your Honor. I'd 13 be happy to introduce everyone, if that's all right 14 with you.
15 CHAIRMAN McDADE: That's fine.
16 MR. MUSEGAAS: I'm Philip Musegaas. I'm 17 a staff attorney at Riverkeeper. My co-counsel are 18 Diane Curran from Harmon Curran Spielberg and 19 Eisenberg in Washington, D.C., and Victor Tafur, a 20 senior attorney also at Riverkeeper. I'd also like to 21 introduce our experts who supported our petition who 22 are here today. Behind me is Gordon Thompson, Dr.
23 Joram Hopenfeld, Peter Henderson, and we also have 24 Marie Quinton from the Pace Environmental Litigation 25 Clinic who has not filed a notice of appearance but is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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535 1 helping us administratively on this case.
2 CHAIRMAN McDADE: Okay. I would ask that 3 when we have a break, if you haven't done so already, 4 if you could give a list of those names to the court 5 reporter to make sure that the spelling is correct.
6 Also, at least initially, for the purposes of the 7 record, when you do make a statement, if you can just 8 announce your name. After a little bit, the court 9 reporter will be clear who it is and we won't need to 10 do that every time.
11 We also have the representatives from the 12 NRC Staff who were here Monday and Tuesday, and also 13 the representatives from Entergy who are very familiar 14 to the court reporter from the past two days.
15 I propose to start with Riverkeeper, 16 Technical Contention 1. Is that agreeable or would 17 you prefer to start with a different contention?
18 MR. MUSEGAAS: That would be fine, Your 19 Honor. We would like to make a brief opening 20 statement?
21 CHAIRMAN McDADE: Yes, as was indicated in 22 the scheduling order, you would have an opportunity to 23 speak generally as to all of the contentions and your 24 position. We'll then give an opportunity, if they 25 wish to the NRC Staff and to Entergy to reply and then NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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536 1 in addition to then speak about the individual 2 contentions.
3 Are you ready to proceed?
4 MR. MUSEGAAS: Yes, we are.
5 CHAIRMAN McDADE: Thank you.
6 MR. MUSEGAAS: Thank you, Your Honor.
7 OPENING STATEMENT OF PHILLIP MUSEGAAS 8 ON BEHALF OF THE INTERVENORS 9 MR. MUSEGAAS: Riverkeeper would like to 10 thank the Board for giving us this opportunity to 11 present our case regarding Indian Point today. We've 12 already introduced ourselves.
13 In terms of directing questions to the 14 Riverkeeper counsel, I would like to respectfully 15 request that after I make this brief opening statement 16 the Board directs its questions regarding particular 17 contentions in the following manner: Diane Curran 18 will answer questions regarding Contentions TC1, TC2, 19 and EC2; Victor Tafur will answer questions regarding 20 EC1; and I will answer questions regarding EC3.
21 Your Honors, Riverkeeper has been involved 22 in challenging Indian Point's operation since the 23 plants were originally licensed in the early 1970s.
24 In fact, our predecessor organization, Hudson River 25 Fishermen's Association stood in a similar courtroom NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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537 1 35 years ago arguing one and the same issues, the 2 impact of Indian Point's cooling water intake system 3 on Hudson River fish populations.
4 Unfortunately, Riverkeeper's opposition to 5 Indian Point grew to include safety and security 6 concerns after the events of 9/11.
7 Riverkeeper has met its initial burden in 8 this proceeding by submitting five contentions that 9 meet the admissability and criteria of the NRC. Each 10 and every one of our contentions raises either a 11 safety or an environmental concern that is critically 12 important to the relicensing review undertaken by the 13 NRC and ultimately to the 20 million people living 14 near Indian Point.
15 Entergy, on the other hand, has failed to 16 meet its responsibilities in this proceeding. First, 17 Entergy submitted an incomplete and inaccurate license 18 renewal application to the NRC. Second, Entergy 19 submitted an answer opposing Riverkeeper's petition 20 that quite simple is without merit and should be 21 disregarded by this Board.
22 Before taking questions, Riverkeeper would 23 like to very briefly respond to two issues that arose 24 during yesterday's arguments. First, Riverkeeper's 25 Contention EC1, is focused entirely on challenging NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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538 1 Entergy's analysis of aquatic impacts in the 2 environmental report, an analysis that Riverkeeper 3 argues does not satisfy NEPA. This is primarily a 4 NEPA argument.
5 At the core of our challenge is a factual 6 dispute over the impacts of once-through cooling on 7 the Hudson fish species. This dispute is within the 8 scope of the license renewal and clearly material to 9 the findings pursuant to NEPA that the NRC must make 10 before deciding whether to relicense Indian Point.
11 Second, Riverkeeper absolutely disagrees 12 with the NRC Staff's assertion that the spent-fuel 13 pools' leaks are a part of normal, routine operations 14 for the purposes of NEPA review. This announcement by 15 Staff counsel simply defies logic and is unsupported 16 in the regulations. Common sense tells you that there 17 is nothing routine or normal about spent-fuel pool 18 leaks, one of which has been going on for 14 years 19 undetected and which has resulted in two large plumes 20 of contaminated water that now sit under Indian Point 21 and continuously leach into the Hudson River which is 22 a nationally recognized waterway.
23 There's nothing routine about the 24 accidental discovery of these leaks during excavation 25 projects at the plant. And the NRC Staff counsel's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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539 1 approach is simply contradicted by the conclusions in 2 the Task Force Report, NRC Region 1 Special Inspection 3 Reports, and NRC's continuing special enhanced 4 oversight of Indian Point specifically regarding the 5 Indian Point leaks and the siren problems.
6 Our contentions are all within the scope 7 of this proceeding, as I said before, and raise 8 significant substantive issues while supported by 9 expert opinion and factual information.
10 Thank you.
11 CHAIRMAN McDADE: Does the NRC Staff wish 12 to respond at this time?
13 MR. TURK: No, Your Honor.
14 CHAIRMAN McDADE: Entergy?
15 MS. ZOLI: Yes, Your Honor. I'd just like 16 to point out two facts. One is that since the early 17 1970s' hearings before the NRC for the construction of 18 Indian Point, authority over the cooling water intake 19 structure and thermal discharge issues has passed the 20 New York State Department of Environmental 21 Conservation and there's a pending proceeding before 22 them now. Entergy did not oppose Riverkeeper's 23 participation as a party in that proceeding and it's 24 an active participant there.
25 Thank you.
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540 1 CHAIRMAN McDADE: Okay, starting with 2 Riverkeeper Technical Contention 1, I have been 3 reading the contentions at the hearings yesterday.
4 This contention is rather lengthy, so I'm not going to 5 read the contention in its entirety. It is clear from 6 the papers that it has to do with adequate time 7 limited aging analysis and the failure to demonstrate 8 that aging will be managed safely. Specifically, I 9 believe Riverkeeper indicates that 10 CFR 10 54.21(c)(iii) requires that aging will be adequately 11 managed for the period in the extent that operation, 12 that Riverkeeper notes that at least four examples 13 where the Entergy is noncompliant in this regard 14 having to do with pressurized surge-line piping at 15 Indian Point 2 and 3 at the RCS piping charging nozzle 16 at Indian Point 2, the pressurized surge line nozzle 17 at Indian Point 3, and they further allege that the 18 cumulative use factors for these exceed regulatory 19 thresholds and that as a result it was inappropriate 20 for Entergy to fail to broaden the TLAA analysis 21 beyond the scope of the representative components that 22 they had listed in tables 4.3-13 and 14 and that they 23 failed to ID CUFs that may be greater than one in this 24 particular case, that they haven't demonstrated it 25 will be adequately managing the aging of components NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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541 1 with a CUF greater than one and that they do not list 2 components with a CUF of less than one.
3 Do you think that gives a good synopsis of 4 the basis of the contention?
5 MS. CURRAN: Yes 6 CHAIRMAN McDADE: Okay. Initially, the 7 NRC Staff did not oppose the admission of this 8 contention. There was an amendment to the original 9 license application, amendment number two. In 10 response to that, Riverkeeper filed an amended 11 contention and at some points it is referred to as 12 amended Contention TC1 at other points, as Contention 13 6.
14 MS. CURRAN: Excuse me. About that, it is 15 amended Contention TC1.
16 CHAIRMAN McDADE: Okay, at this point in 17 time, is there any objection from the standpoint of 18 the Staff that this was not timely filed?
19 MR. ROTH: No, there's no objection for 20 timeliness.
21 CHAIRMAN McDADE: And with regard to 22 Entergy?
23 MR. O'NEILL: No, Your Honor, we don't 24 have any objection at this point, no. We did want to 25 note that we had furnished a copy of the January 22 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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542 1 license application, I think number two, on February 2 4th which was a couple days prior to what Riverkeeper 3 suggested, so we did make an attempt to get into the 4 parties. We served it on the Board as well. I just 5 wanted to emphasize that point. So we have no 6 objection.
7 CHAIRMAN McDADE: But in any event, the 8 amended contention, I believe, was filed on the fifth 9 of March and there is no objection that that was not 10 timely. It was based on new information, the license 11 amendment two, and it was timely in response?
12 MR. O'NEILL: That's correct.
13 CHAIRMAN McDADE: Okay. The first issue 14 with regard to Riverkeeper is you have suggested in 15 your pleadings that we should not, that we should 16 operate as if the original license were before us and 17 not consider the amendment because the amendment 18 itself was not timely filed.
19 I guess the first question is what would 20 be our legal authority to disregard that amendment?
21 Don't we have to deal with what is before us now? And 22 wouldn't the only remedy be if you needed additional 23 time to respond, to allow you that additional time?
24 MS. CURRAN: Yes, Judge, that question has 25 been more or less mooted by the fact that we did take NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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543 1 time. I think we had to respond to -- we had to 2 respond to Entergy's and the Staff's opposition to our 3 initial contention before we had a chance to really 4 evaluate the license renewal application amendment in 5 enough depth. We have had a chance to do that. We 6 have amended the contention. We're prepared at this 7 point to discuss our amended contention, if that 8 pleases the Board.
9 CHAIRMAN McDADE: Okay, if you could sort 10 of briefly summarize how Contention 6 is different 11 than the original contention?
12 MS. CURRAN: I'm sorry, it's TC1.
13 CHAIRMAN McDADE: Okay, TC1.
14 MS. CURRAN: That's my fault. How it's 15 different?
16 CHAIRMAN McDADE: How the amended TC1 is 17 different from the original TC1.
18 MS. CURRAN: Well, the original contention 19 itself is the same. But we did amend the basis of the 20 contention to explain why despite the assertions that 21 Entergy has made in amendment two, our concerns 22 continue to be valid.
23 So if you look at the contention itself, 24 we haven't changed any of those assertions. Our 25 explanation of our reasons for our concerns has NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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544 1 changed based on the new assertions by Entergy.
2 CHAIRMAN McDADE: Originally, the NRC 3 Staff agreed with the Intervenor, with Riverkeeper, 4 that this was viable contention. Based on the amended 5 license application they changed their position. They 6 believed that they amended license condition, amended 7 license application cured the defects that you had 8 originally identified.
9 Why do you disagree with that?
10 MS. CURRAN: Well, we set forth our 11 reasons in our amended contention that we think this 12 Entergy makes absolutely no progress in satisfying our 13 concerns. Entergy is at bottom still promising to do 14 something in the future and not in this license 15 renewal application.
16 The initial hurdle that Entergy has to 17 clear is that it has to show that these CUFs are less 18 than one and it's got CUFs in the license renewal 19 application that are greater than one.
20 At this point, the regulatory guidance 21 gives Entergy additional responsibilities, first to 22 broad the scope of components for which it does 23 evaluate the CUF and second, if it can't determine 24 that CUFs are less than one, it's got to have an Aging 25 Management Program. It can't wait until some time NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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545 1 after the license renewal review to do these things.
2 It's our position we're entitled to a 3 hearing on the adequacy of Entergy's Aging Management 4 Program which includes the adequacy of the analysis of 5 the CUFs and if they are less -- if they're greater 6 than one, an analysis of the adequacy of Aging 7 Management Program.
8 CHAIRMAN McDADE: Am I correct that part 9 of the amendment, amendment two is that Entergy is 10 making a commitment to recalculate the CUFs? What 11 basis do you have, what assurance do we have that when 12 you recalculate that the CUF would be below one?
13 MR. O'NEILL: Your Honor, we've committed 14 to perform the recalculations or the refined analyses 15 in accordance with ASME code and under the umbrella of 16 the fatigue monitoring program. And I'd like to 17 emphasize that if for some reason it recalculated 18 cumulative usage factors or CUFs, C-U-Fs, did not end 19 up below one, we've got another option and that is to 20 repair or replace the component at issue.
21 So there actually is no requirement per se 22 that the CUFs actually be below one. That would be 23 the ideal situation that we perform the refined 24 analyses and we show that the CUFs are less than one.
25 But in the event that they are, we've committed to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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546 1 repair or replace the component at issue.
2 CHAIRMAN McDADE: So am I correctly 3 interpreting that then that contrary to what 4 Riverkeeper is saying -- what you're saying is first 5 of all it may or may not be the case that when you 6 recalculate the Cumulative Use Factor will be below 7 one? If it is, then you would have no further action 8 required at that time. If it isn't, then you would 9 have and that what you would have to do at that point 10 in time is replace or repair and that that constitutes 11 the Aging Management Program, that step one is to 12 recalculate, step two is if the Cumulative Use Factor 13 at that point is above one, you would then have to 14 take action either to repair or replace?
15 MR. O'NEILL: Yes, it would be considered 16 a corrective action as discussed in the NUREG GALL 17 report.
18 CHAIRMAN McDADE: Okay.
19 JUDGE WARDWELL: What recourse do the 20 Petitioners have, if in fact, they disagree with your 21 future recalculation of these CUFs?
22 MR. O'NEILL: To my knowledge, it would be 23 filing a 2206 petition, Your Honor.
24 JUDGE WARDWELL: Why weren't these CUFs 25 calculated for the license application? Or maybe I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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547 1 should say the recalculation of those that are above 2 one at this point?
3 MR. O'NEILL: Your Honor, the requirement 4 is that you address environmentally-assisted fatigue 5 by performing the recalculations and applying an 6 appropriate environmental correction factor after 40 7 years of operation. I think it's reflected in our 8 license application. There actually is no requirement 9 that a license renewal applicant perform the 10 recalculation right now. The Staff has emphasized 11 that environmentally-assisted fatigue is a concern for 12 purposes of aging management. It needs to be dealt 13 with appropriately in that context.
14 JUDGE WARDWELL: Is that a universally-15 accepted position that they don't need to be 16 recalculated as part of the license amendment 17 application?
18 MR. O'NEILL: I can't speak to -- or 19 characterize it as a universal precept, but it's 20 common practice. There are numerous precedents that 21 are a fact.
22 JUDGE WARDWELL: Do you know of any case 23 that deals with your company then that in fact 24 requires you to recalculate those?
25 MR. O'NEILL: Well, the examples of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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548 1 precedence that I mentioned were A and O1 and A and O2 2 which we cited in our document. But I think you're 3 alluding to the Vermont Yankee case, involving Entergy 4 and I believe there is a hearing on this particular 5 issue.
6 JUDGE WARDWELL: Thank you.
7 MR. O'NEILL: May I continue?
8 JUDGE WARDWELL: Yes, sure.
9 MR. O'NEILL: I just want to emphasize one 10 point. The fact that Entergy in this case has revised 11 its license renewal application to bring this under 12 the umbrella of the fatigue monitoring program really 13 reflects a direct lesson learned from the VY and 14 Pilgrim proceedings. It's a very important 15 distinguishing factor. There, there wasn't a 16 commitment to engage in an inspection program. There 17 wasn't a commitment of the type that we have here to 18 perform the recalculation under the ASME code.
19 JUDGE WARDWELL: But didn't the 20 proceedings in Vermont Yankee precede the submittal of 21 your license renewal application and why did you have 22 to file an amendment to do this? Why wasn't it done 23 initially?
24 MR. O'NEILL: Co-counsel is informing me 25 that that ruling actually occurred after we submitted NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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549 1 a prepared application. So we prepared the 2 application before that.
3 JUDGE WARDWELL: But you submitted it 4 after it, so you still had time? I'm asking. I don't 5 know.
6 MS. SUTTON: No, Your Honor, the precedent 7 came after we submitted the application.
8 JUDGE WARDWELL: Okay, thank you.
9 MR. BESSETTE: Your Honor, just as a 10 preliminary matter, Ms. Curran noted that she 11 submitted her amended contention. We're prepared to 12 address the Board's questions to the extent possible, 13 but we do reserve our right to file a formal reply 14 answer to that amended contention pursuant to 15 2.309(h)(1) which will provide us 25 days.
16 CHAIRMAN McDADE: Okay, when are you 17 proposing to do it by?
18 It was filed on the fifth? Are you going 19 to need the full 25 days?
20 MR. BESSETTE: Your Honor, because we only 21 received it late last week and we were preparing for 22 this hearing and we came here this week, we haven't 23 put a schedule together. We hope to get it to the 24 Board as soon as possible, but pursuant to the 25 regulations, we do have 25 days.
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550 1 JUDGE LATHROP: Back to the original 2 question, if you are not required to calculate the 3 CUFs until 40 years has passed and at that point if 4 you've got a CUF greater than one how would the 5 Intervenor have a chance to ensure that you had an 6 adequate Aging Management Program?
7 MR. O'NEILL: Again, they would have the 8 ability to file 2206 petition, but one thing I want to 9 make clear is that the Staff requires that the issue 10 of EAF be addressed for purposes of the extended 11 period of operation, but we actually have to perform, 12 I believe we have to perform the recalculation two 13 years prior to the commencement of the period of 14 extended operation. So it would be done before we 15 enter the period of extended operation and that's 16 reflected in the revised commitment 33.
17 JUDGE LATHROP: But not necessarily before 18 the end of the license renewal application process?
19 MR. O'NEILL: That's correct, Your Honor.
20 And our position on this is that a docketed commitment 21 to perform the necessary recalculation or to repair or 22 replace the components at issue is sufficient for 23 purposes of complying with part 54.
24 CHAIRMAN McDADE: As I understand one of 25 the allegations of this contention is that in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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551 1 event after the recalculation there are Cumulative Use 2 Factors greater than one, it would not only require 3 you to take corrective action, but it would also 4 require you to broaden the scope of those components 5 that you would do a Cumulative Use Factor analysis for 6 beyond those that are listed in Table 4.3-13 and 14.
7 Is that correct? And if so, how would that be 8 addressed in your amended application?
9 MR. O'NEILL: One moment, Your Honor.
10 (Pause.)
11 MR. O'NEILL: That's correct, Your Honor.
12 We would look at the need to broaden the scope of the 13 components depending on the specific circumstances and 14 the findings, our recalculations.
15 CHAIRMAN McDADE: And how is that 16 reviewable? In other words, in the event you 17 recalculate it and in the event as is feared by the 18 Riverkeeper that there were a significant number where 19 the Cumulative Use Factor exceeded one, you take the 20 remedial action to correct that component. You then 21 have an obligation to look for other components that 22 would require this analysis. How is that then subject 23 to review for them to determine and be able to contest 24 whether or not it was adequately expanded?
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552 1 that it would be subject to review by the NRC staff 2 through the ordinary audit and inspection processes.
3 The revealed issue, ultimately again, there the 4 Intervenors could pursue a 2206 petition.
5 CHAIRMAN McDADE: But it would be totally 6 outside this hearing process?
7 MR. O'NEILL: Yes, and our view is that 8 the commitment that we've made, the docketed 9 commitment that we've made is sufficient for purposes 10 of compliance with part 54 and I believe the Staff now 11 agrees with that.
12 CHAIRMAN McDADE: And as I understand what 13 Riverkeeper is saying is that there's -- that the 14 recalculation of the Cumulative Use Factor should be 15 done now. Based on the result of that, we would then 16 know how widely this analysis should be expanded and 17 that then that could be subject to review, a part of 18 this proceeding, prior to the time that the license 19 extension was granted. From the standpoint of the 20 Staff, is there a -- do the regulations support that 21 interpretation and if not, why not?
22 MR. ROTH: The Staff have accepted 23 commitments to meet the license renewal application.
24 As to the regulations supporting and require the 25 recalculation --
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553 1 JUDGE WARDWELL: Could you bring the mic 2 in front of you when you speak, please?
3 MR. ROTH: The Staff have supported in the 4 past --
5 JUDGE WARDWELL: Could you speak into the 6 mic, please?
7 MR. ROTH: Sorry, Your Honors. The Staff 8 accept commitments to meet the Aging Management 9 Program requirements. If I understand your question, 10 your question is would the Staff require or do the 11 regulations or require a recalculation at this point?
12 And I do not believe they do, Your Honor.
13 CHAIRMAN McDADE: Well, what Riverkeeper 14 says is that based on the regulation, the obligation 15 is to demonstrate and demonstrate at this point and 16 time prior to the time that the license is renewed 17 that there will be an adequate Aging Management 18 Program and that part of that adequate Aging 19 Management Program is going to be one, a 20 recalculation; and two, an assessment of whether or 21 not the components under review need to be broadened.
22 And what the Staff seems to be saying is that we will 23 accept a commitment, a promise from them to do that at 24 a later point in time and what Riverkeeper seems to be 25 saying is the regulation requires them to demonstrate NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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554 1 it as a condition precedent for the approval of the 2 extension.
3 What I'm asking is how does the Staff 4 reconcile that language in the regulation requiring 5 them to demonstrate now with the Staff's agreement to 6 accept a commitment to do something in the future that 7 may or may not be adequate and then is subject to 8 Staff review, but now subject to review as part of the 9 hearing process?
10 MR. ROTH: The regulation actually 11 addresses this through the use of the word "will." It 12 says "demonstrate that the aging effects will be 13 managed" and my co-counsel is looking that up. I 14 believe that's 54.21(a).
15 (Pause.)
16 Yes, 54.21(c)(1)(iii), "the effects of 17 aging on the intended functions will be adequately 18 managed." And so they're demonstrating that it will 19 be in the future, unless the Staff accept a 20 commitment.
21 Now it's not just a hollow commitment that 22 says that we're going to do it, trust us. Instead, 23 they have to be able to demonstrate that the Aging 24 Management Program meets the ten elements that are 25 described in GALL.
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555 1 CHAIRMAN McDADE: And it may be a semantic 2 quibble here that we need to resolve, but as I 3 understand their contention, when it says "demonstrate 4 that it will be" I mean one, there's a number of 5 different aspects to it. One is if it's above one, 6 they're going to repair or replace. And obviously, 7 that's a commitment if something is going to happen in 8 the future, because it will be repaired or replaced as 9 necessary, if and when the Cumulative Use Factor is 10 calculated and it is above one.
11 What I'm concerned about is a second part 12 of that which is if the Cumulative Use Factors will 13 not be recalculated until later, and at this point in 14 time we do not know how significant a problem will be 15 identified. We have no way of knowing whether or not 16 the expanded analysis will be adequate and at this 17 point in time from the standpoint of an Intervenor, 18 they have to rely first of all that Entergy will 19 expand their analysis adequately and then secondly 20 that the NRC Staff will act appropriately in reviewing 21 that. And their complaint is no matter what happens 22 with Entergy and the NRC Staff that there is -- that 23 they should have opportunity to challenge in the 24 context of this hearing whether or not there has been 25 a demonstration and they cannot do so when that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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556 1 demonstration is going to occur prospectively.
2 And so how do you address that?
3 MR. ROTH: Well, Your Honor, the 4 application again has to provide the Staff with enough 5 information to come to the same conclusion. The 6 Staff, when it makes its final decision on the 7 relicensing, has to be able to decide has it 8 adequately demonstrated or not. And the Staff again 9 gets involved, looks at the license renewal 10 application, the amended application provides some 11 additional details as to how they're going to do their 12 calculations and what sort of quality assurance 13 programs they have covering them.
14 Now the Staff may or the Staff may not 15 decide in the end that there is sufficient information 16 in the application as stands, but for how the 17 Intervenor can request that information, it's the 18 information available to the Staff and if that 19 information is insufficient, the Intervenor can do 20 what the Intervenor has done and filed the appropriate 21 contention. The Staff would not respond if the 22 amended Contention TC1 * (9:33:14) and we provide a 23 response to it. I mean we'll have a decision as to 24 whether we consider that still admissible or not.
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557 1 understand what you're saying is at least at this 2 point in time, what their ability is is that down the 3 road, after the license renewal application has been 4 granted, they could then file under 3.206 if they were 5 dissatisfied with the recalculation that was done and 6 the scope of analysis done by Riverkeeper if the NRC 7 Staff did not sua sponte take action. But that would 8 be their remedy and their remedy is not in the context 9 of this relicensing proceeding.
10 MR. ROTH: I'm not attempting to say that, 11 Your Honor. Instead, certainly down the road if they 12 thought that the plant was unsafe, they could file a 13 206 petition and request action. However, for this 14 proceeding, they are availing themselves of the 15 regulation here. They have amended the contention.
16 The contention still say that they think the 17 calculations are insufficiently demonstrated and that 18 may be an issue. The Staff has not filed its answer 19 of that amended contention yet.
20 CHAIRMAN McDADE: And when does the Staff 21 anticipate that it will file an answer to the amended 22 contention?
23 MR. ROTH: As counsel for Entergy has 24 said, there's 25 days is what the regulation offers.
25 I'll point out this contention is very similar to New NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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558 1 York 26.
2 CHAIRMAN McDADE: Actually, I believe the 3 regulation says it's presumptive 25 days, but we have 4 the authority either to shorten it or extend it.
5 MR. ROTH: That's quite correct.
6 CHAIRMAN McDADE: So one of the questions 7 I was asking both of Entergy and you all is what 8 amount of time do you think would be necessary?
9 One of the things that we discussed 10 yesterday is with regard to this license amendment.
11 We asked the State of New York and the State of 12 Connecticut to get back to us by Monday and what we 13 would also do is to ask Entergy and the Staff not to 14 get your response in by Monday, but to let us know by 15 close of business Monday your request for how much 16 time you think would be appropriate so we just have 17 some idea from our standpoint of how we're going to be 18 moving along on this time-wise. If you think you're 19 going to need a day, that's fine. If you think you're 20 going to need 25 days from the time that it was 21 submitted, but just let us know.
22 MR. TURK: Your Honor, if I could address 23 that for a second?
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559 1 30th to respond if we took the full 25 days?
2 CHAIRMAN McDADE: Yes.
3 MR. TURK: We won't be back in Washington, 4 essentially until either this Friday or Monday which 5 would be the 17th and that's the more likely date for 6 many of us who are on travel. So really we would only 7 have approximately two weeks to respond at that time.
8 I would think that we'll probably ask you for that 9 full additional 12 days or 13 days until March 30th to 10 get our responses in.
11 CHAIRMAN McDADE: That's fine. And you 12 may request for more than the 25 days. All that I'm 13 looking for is just for an assessment so for our 14 planning purposes we know when we can anticipate and 15 I understand that there are other things going on that 16 this particular week you're here, you're not back in 17 the office writing responses. I also understand that 18 we have given you another assignment with regard to 19 the WestCAN, to report back to us by Monday on as 20 well. And again, if you need additional time on that 21 we would like to know. That's all. We're not asking 22 you to get the response in by Monday. We're just 23 asking for information, an estimate as to when you 24 would be able to respond.
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560 1 that, we will then have a request to reply to that 2 answer. So --
3 MS. CURRAN: Judge McDade?
4 CHAIRMAN McDADE: Yes.
5 MS. CURRAN: I would just like to point 6 out that on March 4th, the Staff wrote a letter to the 7 Board saying they considered our contention to be 8 moot. And I just assume that they were prepared to 9 come and talk about the issue because they seem to 10 have evaluated the amended application.
11 CHAIRMAN McDADE: And correct me if I'm 12 wrong, as I understood it, it had to do with the fact 13 that one, they believed that the original Contention 14 TC1 had been mooted because Amendment 2 to the license 15 application, had cured any defects that you may have 16 identified in that.
17 MS. CURRAN: Right.
18 CHAIRMAN McDADE: You then file an 19 amendment to your contention, and what the Staff is 20 asking for right now is not time to respond to what 21 Entergy did in the license amendment, they're asking 22 for time to respond to your amended contention.
23 MS. CURRAN: But the interesting thing is 24 our contention didn't change. The contention part 25 didn't change. We explained in our amended contention NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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561 1 the reasons why we don't consider that the basic 2 elements of the contention change. The Staff has 3 reached the opinion, the conclusion, that our 4 contention, the basic assertions we make are moot 5 because Entergy has satisfied our concerns. I just 6 want to point that out.
7 CHAIRMAN McDADE: I understand and it may 8 well be after reading your amendment that Staff will 9 change its position and go back to supporting your 10 ability to intervene on this particular contention.
11 From our standpoint, based on what we heard Monday and 12 yesterday, it is probably going to take us more than 13 a couple of hours to write up our opinion in this 14 particular case. So therefore, giving the NRC Staff 15 and Entergy an opportunity to respond and then you an 16 opportunity to reply, I don't think is going to slow 17 the resolution of this in any way. So that's why I 18 think we are predisposed to allowing them the 19 opportunity to respond to the amendment that you 20 submitted, and again would then offer you an 21 opportunity to reply, and we have more than enough to 22 do with the other 50 some odd contentions that we've 23 discussed so far while that was going on.
24 So anyway, with regard to Contention TC1, 25 do you have any other questions?
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562 1 MS. SUTTON: Your Honor, may I make one 2 comment with respect to your last questions about 3 commitments in the license renewal process. In 4 addition to 5421, we would also cite 54.29A, which 5 says among the findings is that actions have been 6 identified and have been or will be taken and that is 7 completely consistent with the regulatory framework 8 for license renewal, which anticipates a license, that 9 an applicant can come in 20 years prior to license 10 expiration. And if they do, they could come in, you 11 finish the process, the renewed license is issued.
12 Commitments or license conditions are included. They 13 go back under the Part 50 process, and those 14 commitments and or conditions are enforced 15 accordingly. And Petitioners who are interested in 16 commitments that will be implemented much further down 17 the line have the opportunity later in the process to 18 challenge them under 2.206. This is all consistent 19 with the license renewal process and regulatory 20 framework as explained in Part 54 in the Statements of 21 Consideration.
22 CHAIRMAN McDADE: Okay, thank you. With 23 regard to Riverkeeper Contention TC2, having to do 24 with flow-accelerated corrosion, they allege that it 25 was a failure to demonstrate the effects of aging will NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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563 1 be adequately managed so that the intended function 2 will be maintained consistent with the CLB for the 3 period of extended operation. As part of this 4 contention, Riverkeeper alleges that the guidance of 5 NUREG 1800 was not followed. Specifically, what does 6 NUREG 1800 urge that they should do that you believe 7 they did not do?
8 MS. CURRAN: If you would give me a 9 moment, please?
10 CHAIRMAN McDADE: Okay.
11 (Pause.)
12 CHAIRMAN McDADE: Actually, let me come 13 back to that.
14 MS. CURRAN: I can answer the question.
15 I'm sorry, I had to switch mentally from one to two.
16 Entergy relies primarily on a program for predicting 17 wall thinning as a result of stress by fluids.
18 CHAIRMAN McDADE: This is the CHECWORKS 19 program?
20 MS. CURRAN: CHECWORKS, yes. And in our 21 expert's view, this program is not adequate for 22 predicting the very localized phenomenon that occur 23 and that Entergy needs to do more to satisfy the 24 regulation and the regulatory guidance.
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564 1 the Staff for a second. Can you explain to us very 2 briefly what CHECWORKS is, how it was created, where 3 we would go to find where it is codified?
4 MR. TURK: Yes, Your Honor.
5 (Pause.)
6 CHECWORKS is not cited in the regulation, 7 so in the sense of your question, where is it 8 codified, it is not part of a federal regulatory 9 requirement.
10 CHAIRMAN McDADE: And actually perhaps I 11 misspoke, and let me rephrase and delete the word 12 perhaps. Rather than codified, documented. Where do 13 we find it?
14 MR. TURK: Your Honor, in the Staff's 15 response to this contention, I believe that we laid 16 out a little bit of the history of the development of 17 CHECWORKs. I'm not intimately familiar with it 18 myself, so I would cite back to our paper. It is a 19 program that has been a computer code program that has 20 been in existence for a long time. It apparently is 21 it in use by the entire nuclear power industry as 22 used, as I understand it, but virtually every reactor, 23 if not all reactors, in the country for attempting to 24 determine the location and the predicted location and 25 timing of wall thinning that may require corrective NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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565 1 action.
2 It has been cited, I believe, it is the 3 GALL report that cites to the reliability and 4 qualities of the CHECWORKS program.
5 CHAIRMAN McDADE: Okay, and you do in your 6 papers, pages 119 to 121 of your reply, you do discuss 7 CHECWORKS, the origins of it. I guess based on that, 8 let me go back to the Intervenor and to say to 9 Riverkeeper, you have alleged that the reliance on 10 CHECWORKS, inappropriately leads to an inadequate FAC 11 program. And I guess my disconnect is you're saying 12 that they, Entergy, didn't comply with the guidance in 13 1800 because they relied on CHECWORKS and that it was 14 inappropriate for them to rely on CHECWORKS, and yet 15 it appears that the NRC and industry in other cases, 16 over many years, have relied on CHECWORKS and I guess 17 what I'm trying to get at is where in 1800 would we 18 look to suggest that following CHECWORKS is 19 inappropriate under these circumstances?
20 MS. CURRAN: One could use CHECWORKS, but 21 CHECWORKS needs to be benchmarked against operating 22 experience. And the problem here is that Entergy has 23 changed the operating conditions in these plants 24 recently, and the program has not been adequately 25 benchmarked. It's an empirical program. It requires NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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566 1 a certain amount of comparison of the predictions that 2 it makes against real conditions in the plant.
3 CHAIRMAN McDADE: Well, your expert 4 indicated that you need 10 to 15 years of experience 5 in order to benchmark this. Entergy responded by 6 saying that the CHECMARK program has been around and 7 in use for more than 15 years, that therefore that 8 they have more than adequate information, more than 9 adequate data available to appropriately checkmark 10 this particular program. What new data or changes 11 specifically do you think make their reliance on 12 CHECWORKS inappropriate here?
13 MS. CURRAN: Water chemistry, change in 14 velocity, and change in temperature are all factors 15 that would affect the predictions made by CHECWORKS.
16 And when you ask that data have we got, what evidence 17 have we got that CHECWORKS is not completely reliable, 18 we have given you examples of incidents that have 19 occurred where pipes have ruptured where it was not 20 predicted that it would happen.
21 CHAIRMAN McDADE: But those were a number 22 of facilities --
23 MS. CURRAN: You heard Mr. Turk say every 24 plant in the country uses CHECWORKS to predict pipe 25 thinning and it doesn't work every time.
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567 1 JUDGE WARDWELL: How did those parameters 2 that you just described change at Indian Point that 3 requires this new benchmarking as opposed to just 4 using its historical data at this particular facility 5 and other facilities across the country?
6 (Pause.)
7 MS. CURRAN: Entergy got a power uprate.
8 JUDGE WARDWELL: And by how much was that 9 power uprate?
10 (Pause.)
11 MS. CURRAN: It was about five percent.
12 JUDGE WARDWELL: One could take the 13 position that that doesn't seem like a very large 14 power uprate. What would be the threshold of a power 15 uprate level, in your opinion, would be necessary in 16 order to generate enough changes in those parameters 17 that you talked about that would warrant re-18 benchmarking and CHECWORKS?
19 (Pause.)
20 MS. CURRAN: Well, apparently it's a 21 complex series of events that involves different 22 factors interacting, velocity of the flow and 23 temperature and water chemistry. And so this isn't 24 something that lends itself to a simplistic analysis.
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568 1 uprate, the change in the plant conditions would be 2 sufficient to require additional benchmarking of the 3 program.
4 And we don't just rely on that. We rely 5 on history in which CHECWORKS has been successful in 6 predicting corrosion and damage of pipes.
7 JUDGE WARDWELL: Does that damage and 8 corrosion of pipes that CHECWORKS wasn't able to 9 predict occur at Indian Point?
10 MS. CURRAN: We didn't have examples from 11 Indian Point, but it seems to me an industry-wide 12 program that it would be relevant to cite examples of 13 other plants.
14 JUDGE WARDWELL: Thank you.
15 CHAIRMAN McDADE: But just to clarify in 16 my own mind right here, as I understand part of what 17 the Staff and what Entergy are saying is what your 18 expert, Dr. Hopenfeld -- is that how you pronounce it?
19 DR. HOPENFELD: Hopenfeld.
20 CHAIRMAN McDADE: He is basically 21 speculating and I'm not agreeing one way or the other 22 with that, but if you credited that, it would mean 23 that CHECWORKS could not be used, could not be relied 24 on at any facility, that the difficulties reference 25 and on which he draws assumption are not problems that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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569 1 occurred at Indian Point, that there's no specific 2 information with regard to the changes in velocity, 3 pressure, temperature at Indian Point that would 4 directly lead or demonstrate that CHECWORKS would be 5 inappropriate, that those changes are so significant 6 that the benchmarking, the data that's been generated 7 to date is not relevant.
8 So that said, if one throws out CHECWORKS 9 in its entirety, how would an Applicant be able to 10 demonstrate or even for that matter develop an 11 appropriate FAC program?
12 MS. CURRAN: Well, in the first place we 13 are not -- I don't think that admitting this 14 contention or ultimately ruling for the Intervenors on 15 this contention means that CHECWORKS has to be thrown 16 out for all operating plants. This is a license 17 renewal case. We're talking about an additional 20 18 years of operation in which the NRC has to determine 19 that components that are susceptible to aging effects 20 are going to be adequately managed.
21 Now we've shown that a program that's 22 commonly used through the normal period of operation 23 has significant problems in predicting pipe breakage 24 during normal -- the original 40-year license term.
25 In this case, we're talking about an additional 20 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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570 1 years in which the components are even more vulnerable 2 because of aging. So I think first of all that's an 3 important distinction to make.
4 And second, when you ask what would we 5 require? We've outlined it in our contention. We 6 have suggested that because this phenomenon is a 7 localized phenomenon that Entergy has to do more 8 localized inspections and analyses of the effects in 9 order to be sure that these particular locations are 10 adequately cared for.
11 It's a question of whether you're going to 12 rely on a generic program for a large number of 13 locations that have very site-specific characteristics 14 that warrant a more individualized analysis.
15 CHAIRMAN McDADE: Now one of the responses 16 by the NRC Staff and Entergy in this regard is that in 17 your petition that you do not adequately identify 18 which components are of concern based on this and let 19 me first go to the NRC Staff and then to Entergy. In 20 their petition, they describe those components of 21 concern as carbon and low alloy-steel components and 22 systems containing high-energy fluids, 2 percent or 23 more of plant-operation time.
24 How much more specific? I understand that 25 includes a lot of components, but how much more NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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571 1 specific could they be in identifying the components?
2 It seems like that does create an identifiable set of 3 components, does it not?
4 MR. TURK: Your Honor, that description 5 that they provided could cover a huge number of 6 components.
7 CHAIRMAN McDADE: I'm sure they 8 represented it does.
9 MR. TURK: They're saying essentially look 10 at any pipes that carry a substantial volume of water 11 or of fluid.
12 I mean they're including stainless.
13 They're including carbon. They're including any sort 14 of piping at all of the plant it seems. Our position 15 is that they should specify which systems and in 16 particular, their concerns about it. They don't 17 identify any particular systems.
18 CHAIRMAN McDADE: I guess my question has 19 to do with this. In identifying systems, the fact 20 that what they identify is broad, that it encompasses 21 a lot, doesn't mean that it isn't specific, that you 22 can be specific and say everything and whether you 23 then list every component in the plant by a particular 24 name or you categorize them generically, it seems that 25 as long as you adequately describe them so that the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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572 1 NRC Staff and Entergy would be able to ascertain which 2 components and it seems like by describing it as they 3 did carbon and low-allow steel components in systems 4 that contain high-energy fluids, 2 percent of plant 5 operating time, that that is a pretty descriptive 6 statement.
7 MR. TURK: I don't think that I could 8 understand that, Your Honor. Maybe somebody with a 9 better understanding of piping could tell you, yes, we 10 have a system where we know which systems carry fluids 11 greater than 2 percent of the time that the plant is 12 being operated. It's just a vague statement. It 13 doesn't lend itself to any definition other than to 14 say look at the entire plant.
15 CHAIRMAN McDADE: From the standpoint of 16 Entergy is that a characterization of components that 17 you would be able to readily identify?
18 MR. O'NEILL: Your Honor, I'm not sure we 19 could readily identify specific components. I think 20 that could encompass everything on the secondary side 21 of the plant. But I will say this, that really was 22 not our principal beef with their petition. It really 23 was that it was the very vague and conclusory nature 24 of the testimony, I shouldn't say testimony, but the 25 information presented by Petitioner and Dr. Hopenfeld NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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573 1 regarding benchmarking. In our view, they really 2 haven't provided sufficient information to show that 3 the use of CHECWORKS is in any way inappropriate for 4 this specific plant. We view it as a clear, generic 5 challenge again on the CHECWORKS model. I don't want 6 to retred old ground, but that is our position.
7 CHAIRMAN McDADE: But effectively what 8 they're doing is speculating that CHECWORKS could be 9 better, suggesting that perhaps in all instances 10 CHECWORKS is not going to be applicable, but not 11 pointing out in this particular instance with regard 12 to Indian Point in any specific way the CHECWORKS --
13 reliance on CHECWORKS as a starting point for 14 identifying these components is not an appropriate 15 starting point for an adequate Aging Management 16 Program for these components and specifically as part 17 of an FAC program. Is that correct?
18 MR. O'NEILL: That was a very good 19 characterization.
20 CHAIRMAN McDADE: Okay. I stepped on one 21 of your questions, I apologize.
22 JUDGE LATHROP: No problem. I wanted to 23 return to the question, the assertion by Riverkeeper 24 that there are serious problems with CHECWORKS. You've 25 categorized it as an empirical computer code. What is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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574 1 the failure rate compared to the number of components 2 that are being analyzed with CHECWORKS, how many pipe 3 failures have there been?
4 MS. CURRAN: Well, there have been enough 5 to kill a couple of people.
6 JUDGE LATHROP: Well, are all of those 7 failures directly attributed to CHECWORKS?
8 MS. CURRAN: Well, we infer that CHECWORKS 9 is involved because CHECWORKS is used at every plant 10 in the country. So that is the program that is being 11 used by these licensees to predict where they need to 12 inspect and replace pipes. It seems like a reasonable 13 inference to us.
14 JUDGE LATHROP: But it is a tool used to 15 identify where there may be problems. Would you 16 expect it to be infallible?
17 MS. CURRAN: No.
18 JUDGE LATHROP: So there would be some 19 normal instances where it did not do exactly what it 20 was supposed to do.
21 MS. CURRAN: But I think there's a 22 reasonable debate here as to what is adequate for 23 purposes of doing the program's job, and that we have 24 given you enough examples of instances where corrosion 25 was not detected with significant safety risk, that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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575 1 this issues should be pursued further.
2 JUDGE WARDWELL: And did those problems 3 occur at plants that were under normal power ratings 4 or at the uprated power ratings at Indian Point?
5 (Pause.)
6 JUDGE WARDWELL: I will withdraw my 7 question and ask --
8 MS. CURRAN: I'm sorry.
9 JUDGE WARDWELL: I'm not curt either. I 10 think, as I sat thinking of the question also, I've 11 seen to me it is getting too far into the technical 12 details at this point and I withdraw it based on my 13 fault, not your --
14 MS. CURRAN: Perhaps if it happened when 15 there was no power operated indicates that the program 16 is more susceptible. We cited a report that provided 17 statistical information about the number of pipe 18 failures. There was a period from the 1970s into the 19 early 1980s and then post 1987. I refer you to that 20 report which did do a statistical analysis of pipe 21 failures. It did not specify under what conditions.
22 JUDGE WARDWELL: Thank you.
23 MR. TURK: Your Honor, may I supplement my 24 previous response to a question?
25 CHAIRMAN McDADE: Yes, please.
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576 1 MR. TURK: I was asked the question about 2 the specificity of a contention. The license renewal 3 application at Appendix B, it appears on page B-54, at 4 Section B.1.15, addresses flow-accelerated corrosion 5 and it has a description of the FAC program at the 6 plant. It says "the flow-accelerated corrosion 7 program is an existing program that applies to safety-8 related and non-safety related carbon and low alloy 9 sealed components and systems containing high energy 10 fluids carrying two phase or single phase high energy 11 fluid equal to or greater than two percent of plant 12 operating time".
13 So that is the segment in the LRA. That 14 may be what the contention seeks to address, just that 15 general description of the fact of the FAC program.
16 Our position with respect to specificity 17 that they are attacking the entire program without 18 identifying which systems in particular are a concern 19 for them. So that is the point of our statement about 20 specificity.
21 CHAIRMAN McDADE: Actually, I think what 22 they're attacking are all of the systems. They're 23 saying that for all of those systems, and I believe 24 that is Appendix B, paragraph B, .1.15?
25 MR. TURK: Yes.
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577 1 CHAIRMAN McDADE: And they're saying that 2 all of those components are of concern to them because 3 specifically of their very nature and that they are 4 concerned because of the reliance on CHECWORKS that 5 the FAC program is inadequate as to all of them. And 6 again, what I was simply asking was whether or not 7 admittedly a very broad, a very all encompassing 8 statement of components is adequate or not adequate 9 under the regulation.
10 And then, of course, the question is 11 whether or not the next step, if they have adequately 12 identified the components, whether or not they have 13 demonstrated, you know, sufficient information to 14 challenge the adequacy of the program for the flow-15 accelerated corrosion with regard to those components.
16 MR. TURK: And our position would be if 17 they have a concern about the ability of CHECWORKS to 18 adequately predict wall thinning, then are they saying 19 that's true with respect to every system? It appears 20 to be that that's perhaps what they're saying, but we 21 would have hoped that they would specify where in 22 particular, which systems in particular, could not be 23 adequately monitored using the combination of methods 24 in place, including the CHECWORKS program. And we're 25 saying they should have been more specific about which NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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578 1 systems are a specific concern for them.
2 May I make one other point. The license 3 renewal application mentions that the flow-accelerated 4 corrosion program is an existing program of the plant.
5 In NUREG 1800, and this goes back to another question 6 that the Board had asked previously. On page 3.0-1 --
7 JUDGE WARDWELL: Before we get to that 8 point, can I interrupt then? I just want to make a 9 comment on your last point that you then quickly would 10 jump to this point, if it's a completely different 11 one. What you are suggesting, though, wouldn't that 12 be a bit difficult for them unless they reran all of 13 CHECWORKS with the power uprate parameters associated 14 with it in order to start identifying it? Isn't that 15 more a task that should be performed by Entergy, and 16 really the Petitioners are challenging the fact that 17 Entergy should have done that and can't really do it 18 until they have a proper benchmark in CHECWORKS at the 19 power uprate levels that they're now operating at 20 Indian Point now?
21 MR. TURK: We don't think so. We think 22 that they could have specified and should have 23 specified which systems, which piping --
24 JUDGE WARDWELL: How would they do that 25 without having a re-benchmark CHECWORKS?
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579 1 MR. TURK: Well, if they had a concern 2 about past experience, as they stated, in this current 3 state that CHECWORKS does not always work out 4 successfully. If they have those specific concerns, 5 they should identify which systems or which types of 6 instances CHECWORKS has not proved to be adequate, so 7 that we can focus on what the alleged problems are 8 rather than a general attack on the program.
9 JUDGE WARDWELL: Thank you. Sorry to 10 interrupt, but just wanted to go through that.
11 MR. TURK: This is actually a bit of a 12 follow-on to the previous answer that I just provided.
13 When I mentioned that the LRA refers to the flow-14 accelerated corrosion program as an existing program, 15 in the standard review plan for license renewal, NUREG 16 1800, the following appears at page 3.0-1, it states 17 "sections 3.1 through 3.6 of this SRP-LR describe how 18 the AMRs", those would be the Aging Management 19 Reviews, and AMPs are reviewed.
20 One method that the Applicant may use to 21 conduct this AMR is to satisfy the NUREG 1801, GALL 22 report recommendations. The act that may have used 23 methodology other than that in the GALL report to 24 demonstrate compliance with 10 CFR 54.2183."
25 So NUREG 1800 tells the Applicant that if NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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580 1 they satisfy the GALL report recommendations, then 2 they will have demonstrated to the Staff's 3 satisfaction that the regulations are complied with.
4 In the GALL report, which is referenced 5 here in NUREG 1800, the program for flow-accelerated 6 corrosion is in Chapter XI.M17, float-accelerated 7 corrosion. And that is where the GALL report states 8 and this is page XIM-61, "monitoring and trending 9 CHECWORKS or a similar predicted code is used to 10 predict component degradation in the systems conducive 11 to FAC as indicated by specific plant data including 12 material, hydrodynamic and operating conditions.
13 CHECWORKS is acceptable because it provides a bounding 14 analysis for FAC." And it goes on to say, to state 15 "CHECWORKS was developed and benchmarked by using data 16 obtained from many plants. The inspection schedule 17 developed by the licensee on the basis of the results 18 of such a predicted code provides reasonable assurance 19 that structural integrity will be maintained between 20 inspections." And it goes on then to talk about how 21 inspection results are factored into the evaluation of 22 whether wall thinning should be expected.
23 So our point would be that NUREG 1800 does 24 not specifically reference CHECWORKS, but it does 25 refer to the GALL and states that using the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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581 1 methodology provided in GALL provides reasonable 2 assurance of adequate protection of public health and 3 safety. CHECWORKS is mentioned in GALL and therefore 4 we're content that reliance on GALL is in compliance 5 with the regulatory requirements.
6 JUDGE WARDWELL: But GALL also recognizes 7 I guess the need to benchmark CHECWORKS.
8 MR. TURK: It recognizes the need to 9 consider inspection results such that if you come up 10 with results from CHECWORKS and then go to see okay 11 what additional data do we have, based upon a 12 continuing inspection of the plant.
13 JUDGE WARDWELL: They were emphasizing in 14 GALL, they felt it was important enough to point out 15 in GALL that, in fact, CHECWORKS had been benchmarked.
16 MR. TURK: It has been benchmarked.
17 JUDGE WARDWELL: I infer from that, and am 18 I wrong in inferring from that, that in fact, there's 19 a necessity to benchmark that model based on the 20 conditions that are experienced at plants in a normal 21 benchmarking process and that's what was done for 22 CHECWORKS.
23 MR. TURK: Yes, CHECWORKS had been 24 benchmarked and continually data are provided and the 25 inputs are --
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582 1 JUDGE WARDWELL: Do you know the power 2 level at which that program was benchmarked at?
3 MR. O'NEILL: Your Honor, may I interject 4 for a moment? I just would refer the Board to page 59 5 of our response to the Riverkeeper petition. I think 6 it provides a pretty good explanation of calibration 7 in CHECWORKS specifically as it applies to this plant, 8 reflects the fact that the updates that CHECWORKS 9 models for Indian Point reflected all plant power 10 level changes. The original power level, the Appendix 11 K uprate and the stretch power uprates that were 12 recently approved by the NRC.
13 JUDGE WARDWELL: Thank you.
14 CHAIRMAN McDADE: And just so -- one of 15 the issues --
16 JUDGE WARDWELL: Can we finish the 17 question in regards to do you know what the GALL 18 report, whether it was benchmarked for the GALL 19 report?
20 MR. TURK: I do not know at this time.
21 JUDGE WARDWELL: Thank you.
22 CHAIRMAN McDADE: But the CHECWORKS has 23 been used throughout the country at scores of plants 24 for more than 15 years. And part of the response to 25 the allegation of Riverkeeper that it hasn't been NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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583 1 appropriately benchmarked, we need more data to 2 appropriately benchmark it is it has been done.
3 There's a lot of data. We can make a determination as 4 to the accuracy of CHECWORKS in anticipating and 5 projecting where problems are going to be.
6 That said, where do we look in your 7 petition that indicates that there is a sufficient 8 change in the velocity, pressure, and temperature 9 based on the uprate at Indian Point that that data to 10 benchmark CHECWORKS would not be viable?
11 MS. CURRAN: First of all, it is based on 12 Dr. Hopenfeld's professional judgment that the changes 13 in the conditions at this plant require additional 14 benchmarking of the program.
15 CHAIRMAN McDADE: Does he say specifically 16 what the change in velocity, pressure, or temperature 17 was and why that would be significant? Isn't his a 18 more general statement than that?
19 (Pause.)
20 MS. CURRAN: Okay, on page 21 of our 21 hearing request, we say that "in 2005, Indian Point 2 22 and 3 were granted a power increase of 3.26 percent 23 and 4.8 percent, respectively. These power changes 24 affect velocities, temperatures, cooling chemistry, 25 and steam moisture mainly on the secondary side of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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584 1 plant where the steam flow and feed flow increases are 2 approximately proportional to the power increase."
3 So in his opinion, CHECWORKSs or any other 4 data bank on flow accelerated corrosion must now be 5 updated. And we provided a statement of Dr.
6 Hopenfeld's extensive qualifications to make that 7 evaluation.
8 But in addition, we also rely on the 9 history of CHECWORKS on the letter from the ACRS 10 Member who questioned the effectiveness of CHECWORKS, 11 on the numerous instances where CHECWORKS was 12 inadequate. We are also relying on that and it's 13 important in an NRC licensing case if new information 14 becomes available to raise questions about a piece of 15 NRC guidance, whether it's adequate that Intervenors 16 be able to challenge it and that is what we are doing 17 here.
18 We are saying that CHECWORKS is not an 19 adequate tool to predict the conditions in specific 20 locations in a nuclear power plant cooling system and 21 we have provided you evidence of that. It's enough 22 evidence to gain admission of the contention and a 23 hearing on the merits.
24 CHAIRMAN McDADE: Okay, thank you.
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585 1 though in your direct connection between the -- you're 2 making a direct connection between every pipe failure 3 and a deficiency in CHECWORKS. It would seem to me 4 that a good deal of analysis would be required to 5 establish that each accident that resulted in a pipe 6 failure was the result of an inadequacy in CHECWORKS.
7 MS. CURRAN: Judge, I would just ask you 8 to look at the statistics in the report that we cited 9 in our contention which I think you have to infer a 10 relationship between the large number of incidents and 11 the fact that this is the primary program that is used 12 to predict pipe thinning.
13 You also have to remember that CHECWORKS 14 is a proprietary program. We do not have access to 15 it. We must infer. We just deduce a certain amount 16 from the fact that it's so widely used and these 17 incidents occur. And they've been analyzed. And we 18 have an ACRS Member raising a concern about it.
19 We bring you the best evidence that we can 20 get out of publicly-available records that there's a 21 problem here.
22 CHAIRMAN McDADE: But is there any 23 indication that these leaks that you make reference to 24 are the result of flow-accelerated corrosion?
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586 1 were some. I think you have to look at the report.
2 (Pause.)
3 MS. CURRAN: Fort Calhoun may possibly be 4 an example, but one would have to verify that.
5 CHAIRMAN McDADE: Okay, thank you. The 6 next issue has to do with Environmental Contention 1 7 of Riverkeeper which indicates that the environmental 8 report is inadequate because it fails to adequately 9 analyze the adverse impacts on aquatic resources from 10 heat shock impingement and estrangement caused by 11 Indian Point's once-through cooling system.
12 This is a contention that is somewhat 13 similar to New York 30 which we discussed yesterday.
14 Originally, again the Staff did not oppose, but the 15 Staff had based on additional information that was 16 furnished to it by Entergy chose to change its 17 position and oppose the admissability of this 18 contention. And one of the things that we said with 19 New York yesterday is in light of that Staff change of 20 position, we certainly want to hear from you today on 21 this particular point, but what we would ask is again 22 by Monday of this coming week, not that you supply us 23 with anything else, but if you did wish additional 24 time within which to submit a written submission, 25 based on the Staff's change of position to just let us NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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587 1 know by close of business Monday, the 17th, how much 2 time you believe you would need.
3 MR. TAFUR: Victor Tafur for the 4 Petitioner. Your Honor, thank you. That was going to 5 be my first point and we will respond by Monday. Then 6 that takes me to my second point is if you allow me to 7 explain our position --
8 JUDGE WARDWELL: We've got a general 9 process, we'll do it through questioning and I'll 10 start off by verifying with the Staff that are you 11 also now recommending that this contention be 12 rejected?
13 MR. CHANDLER: Yes, we are, Your Honor.
14 JUDGE WARDWELL: Do you have any 15 introductory statements you'd like to ]make in regards 16 to your position as it now stands?
17 MR. TAFUR: Thank you, Judge Wardwell, I 18 do. I'm going to focus on the requirements under 19 51.53 which I think --
20 JUDGE WARDWELL: Let me interrupt for a 21 bit, the reason I asked that is because I did hear in 22 the introduction that was provided before we started 23 these contentions the fact that you were addressing 24 specifically something I think that was different than 25 I heard before under 51.53 and that's just what I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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588 1 wanted to hear about and that's why I asked as a 2 general question, not that I'm trying to set a 3 precedent to allow you any particular Petitioner to 4 start off with an introductory statement, but I am in 5 this case because of that very fact, so do proceed.
6 This is what I do want to hear about.
7 MR. TURK: Thank you, Your Honor. I think 8 it's going to be specific and on point. The question 9 here is not whether Entergy has a current permit, but 10 whether the EPA or the State has made a current 11 determination that can be used as a NEPA analysis to 12 consider those category 2 impacts that the Board and 13 the Agency has to deal with here.
14 That leads me to 51.53(c)(3)(ii).
15 JUDGE WARDWELL: Let me just pause for a 16 minute?
17 MR. TAFUR: Sure, Your Honor.
18 JUDGE WARDWELL: Okay.
19 MR. TAFUR: Those are explicit, specific 20 requirements for the ER in this context. And the 21 regulation reads as follows -- I won't read all of it, 22 I'll just read the key parts that I think are helpful 23 here.
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589 1 action." Then it continues, "for those issues 2 identified as category 2 issues in Appendix B." Then 3 it continues, "the required analyses are as follows" 4 -- then it comes to (a) and (a) deals with plants that 5 have closed-cycle cooling. That's not the case here.
6 Then we have (b); (b) deals with plants that have 7 once-through cooling, so that's the applicable 8 provision here.
9 And then (b) tells us that the Applicant 10 "shall provide a copy of a current Clean Water Act 11 316B determination. So let's stop right there.
12 It states "not a current permit." A BTA 13 determination. A BTA determination is essentially an 14 analysis of entrainment impingement in order to 15 determine the best available technology in order to 16 minimize those adverse environmental impacts which is 17 the standard that's set by the Clean Water Act. It 18 looks at four main factors, the location, the intake, 19 the capacity, potentially the water intake that the 20 plant needs to cool off, the construction, and the 21 design.
22 The key thing there is that the provision 23 is focusing on analyses and the determination that 24 it's going to serve for the NEPA purpose is that a 25 determination that's very focused, that is done by NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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590 1 agencies that have expertise in doing this whether 2 it's at the federal level, the EPA, or state-approved 3 permits that can do equivalent determinations. The 4 focus is not a current permit and you have to focus on 5 those two key provisions. It also says current. It 6 doesn't say valid permit.
7 Now because there's a cross reference to 8 the Clean Water Act. Let me cite you to two recent 9 cases. In Riverkeeper v. EPA, Second Circuit 2004, 10 358 F.3d 174, the Second Circuit addresses the issue 11 of adverse impacts that have to be addressed in these 12 kind of determinations and they focus on entrainment 13 impingement and the levels of the actual entrainment 14 impingement. Now that deals with new facilities.
15 There's an even more recent decision by the Second 16 Circuit. That's the Riverkeeper v. EPA, and we call 17 it Riverkeeper II, Second Circuit 2007, 475 F.3d 83.
18 Again, the Second Circuit essentially upholds EPA's 19 focus on the levels and impingement entrainment as the 20 assessment that's underlying the entire best available 21 technology and analyses.
22 Now let's focus then again on the words, 23 current --
24 JUDGE WARDWELL: I need you to speed this 25 up a little. Maybe it's better if I focus you with NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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591 1 some questions, possibly, because this is a little 2 longer than I anticipated. And I'll interrupt and 3 then maybe I'll let you get back.
4 MR. TAFUR: Okay, Your Honor.
5 JUDGE WARDWELL: Is a 316(b) determination 6 required at all times? Do you have any other choice 7 besides a 316(b) determination? Is there any other 8 options that anyone can take to meet the Clean Water 9 Act.
10 MR. TAFUR: Under the Clean Water Act, a 11 NPDES and SPDES permit, you need to comply with 316(b) 12 so there must be a determination every time the plant 13 is going to have that permit.
14 JUDGE WARDWELL: Could you use 316(a) if, 15 in fact, you can't make the 316(b) determination?
16 MR. TAFUR: 316(a) is different and it 17 focuses on thermal and again, the regulation doesn't 18 talk about a 316(a) permit. It's talking about a 19 316(a) waiver, variance exactly. In order to do the 20 variance, you need to have supporting analysis which 21 we typically call the demonstration. It's an 22 analysis. And that's what happened in Vermont Yankee.
23 The Applicant submitted an application with a permit 24 and then after they resubmitted the permit with a 2006 25 evaluation of that thermal variance and analysis that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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592 1 supported that and that's why the Vermont Yankee 2 supports this approach of 51.53.
3 Essentially, you're looking at a current, 4 an updated, something that's going to serve to analyze 5 those category 2 impacts which the Board and the 6 Agency must do and it's essentially respecting the 7 Clean Water Act's authority, avoiding duplication and 8 it's focusing on the expertise of the Agency, so 9 there's no duplication. There's a lot of consistency, 10 but it only applies when you have current, updated, 11 inclusive of the conditions and it's presented to the 12 Board, then you can include it and you can essentially 13 say okay, this is enough. I'll move along. I don't 14 need to do that here again. That was my other point.
15 Here, it's a little more focused. Under 16 Seabrook, it is clear --
17 JUDGE WARDWELL: The Vermont Yankee you 18 were referring is a license renewal or the power 19 uprate?
20 MR. TAFUR: I was referring to -- and I'll 21 be very, very specific is CLI-0716 which can be found 22 at 65 NRC 371. That is the Commission's ruling --
23 JUDGE WARDWELL: Dealing with the license 24 renewal.
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593 1 decision where you dissented, Your Honor.
2 JUDGE WARDWELL: And you're arguing that 3 that Commission decision was based on the amended 4 equivalent Clean Water Act permit that they have 5 submitted to the State?
6 MR. TAFUR: Correct, Your Honor.
7 MS. ZOLI: Your Honor, may I have a moment 8 to respond?
9 JUDGE WARDWELL: Yes, but not right now.
10 MS. ZOLI: Okay, thank you.
11 CHAIRMAN McDADE: This isn't the moment.
12 Please continue.
13 JUDGE WARDWELL: Did I step on legal toes 14 again?
15 CHAIRMAN McDADE: No.
16 JUDGE WARDWELL: Okay, good. Is there a 17 process currently going on in New York State to 18 address the SPDES permit issue relating to Indian 19 Point?
20 MR. TAFUR: Yes, and it started in '92.
21 It's been 15 years when it started.
22 JUDGE WARDWELL: And bear with me, that's 23 good. I'm going to ask a number of questions. I'd 24 like to keep them short answers. I will then allow 25 you to elaborate, trust me, at the end. I won't hold NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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594 1 you, but don't feel a need to elaborate too much.
2 MR. TAFUR: Okay, Your Honor.
3 JUDGE WARDWELL: I just want to go through 4 a series of them.
5 MR. TAFUR: I'll work with you.
6 JUDGE WARDWELL: To see where we agree or 7 disagree or you have some shading on it that really 8 influences our decision here.
9 MR. TAFUR: Okay.
10 JUDGE WARDWELL: Is there -- does Indian 11 Point hold a current, valid SPDES permit in your 12 opinion?
13 MR. TAFUR: They have a permit under which 14 they can operate which is extended under SAPA 15 provision that these States have. We don't quarrel 16 with that.
17 JUDGE WARDWELL: So your answer is yes?
18 MR. TAFUR: Yes.
19 JUDGE WARDWELL: Thank you. Has in your 20 opinion Entergy supplied those specific pieces of 21 information that are directly required by the license 22 renewal application necessities that are presented in 23 part 51?
24 MR. TAFUR: We have a problem with that.
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595 1 documents or part of the permit itself which includes 2 the Hudson River settlement agreement under a 3 condition of the permit and then the orders that 4 follow that. There are problems with that, so they 5 have not fully complied with giving you a permit and 6 the supporting documentation that goes along with it.
7 JUDGE WARDWELL: What is missing from 8 those submittals because -- do you agree that what 9 they have to submit is their current New York State 10 equivalent Clean Water Act requirements that are in 11 place of the 316(a) and (b) if, in fact, they don't 12 have that?
13 MR. TAFUR: Yes. That State permit would 14 have to be supported or complemented with a FAQ sheet.
15 That happened with Vermont Yankee; a summary of the 16 findings on the assessment of what is the current 17 status of entrainment impingement, so there it's not 18 just a permit that they're required to submit, is the 19 supporting analyses that underlie that. And here, 20 what they've submitted as supporting analysis is the 21 fact they didn't even submit it. The Hudson River 22 settlement agreement which is an attachment, it is 23 part of the FEIS and it's now in the record, so let's 24 not quarrel with that. And that expired. It was 10 25 years, '81 to '91. Then after a lawsuit that we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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596 1 brought in it was extended until 1998. Then it stops.
2 Counsel for Entergy is telling you that 3 they voluntarily extended it. For example, those --
4 the Hudson River settlement agreement under those 5 consent orders required Entergy to do very specific 6 outages at certain times, not just because they are 7 off-line or something. They are not bound to do that 8 now. That Hudson River settlement agreement and that 9 consent order, in fact, only had outages, flow 10 limitations and temperature limitations and 11 essentially the assessment was postponed and it has 12 been going of for 30 years.
13 MS. ZOLI: Pardon me, Your Honor, but I 14 believe your question was have four documents been 15 provided in the ER and I think there is a 16 misunderstanding because I'm happy to walk over and 17 show Mr. Tafur where those documents are referenced.
18 JUDGE WARDWELL: Please.
19 CHAIRMAN McDADE: Be patient, the moment 20 will come.
21 And let me just go back. I just want to 22 make sure I'm clear. Under 51.53(c)(3)(ii)(b) if they 23 submit a permit isn't the permit the 316 determination 24 and regardless of whether they voluntarily submit 25 more, doesn't that end our inquiry here? If they NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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597 1 submit a valid permit, that satisfies 2 51.53(c)(3)(ii)(b) period. Why did they need to 3 submit anything more? Isn't it only if they don't 4 have a valid permit that they need to submit 5 additional documents and then we have to look at the 6 adequacy of those?
7 MR. TAFUR: It's not the permit. It's the 8 assessment that goes along with the permit.
9 CHAIRMAN McDADE: But isn't the permit 10 effectively a manifestation of a determination by the 11 state?
12 MR. TAFUR: You would be relying on a 25-13 year-old assessment. And I believe that's not the 14 intent and that's not what the words of 51.53 ask.
15 CHAIRMAN McDADE: But isn't the whole idea 16 for us not to redo something the State has already 17 done and if you feel the State has given the permit 18 inappropriately, has made a determination without 19 adequate evidence, that the place to contest that is 20 with the State?
21 Now I understand there may be some 22 frustration in that it's more than 15 years that it's 23 being contested in front of the State, but aren't we 24 instructed to defer to the State on this?
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598 1 exception of B, capital B, you are required under 2 51.53(c)(2) to analyze category 2 which is the real 3 NEPA requirement. And B is just a way of compliance 4 if you have a current assessment that supports that 5 permit. We don't have it here. The situation here is 6 very particular and it doesn't really fit with the 7 purpose or intent of having a consistency with the 8 different agencies doing different things.
9 JUDGE WARDWELL: But you would agree that 10 whenever the resolution of New York State's process it 11 will trump anything the NRC can do in regards to the 12 Clean Water Act effluent standards?
13 MR. TAFUR: Only with respect to those 14 category 2 impacts analyzed there. I think your 15 analysis is much more focused and when we reach, when 16 we get there, that could happen Your Honor.
17 JUDGE WARDWELL: The moment has arrived.
18 MS. ZOLI: Thank you, Your Honor.
19 JUDGE WARDWELL: And again, really do 20 speak closely to the mic.
21 MS. ZOLI: I'll speak closely to the mic 22 and I'm going to address each --
23 JUDGE WARDWELL: Closer than that to the 24 mic.
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599 1 address each of Mr. Tafur's points so that we make 2 sure by the end we've been through everything And if 3 you think I've forgotten to address anything, please 4 let me know.
5 First, he questioned whether the permit is 6 current. On page 28 of their petition, they 7 acknowledge the State had made a determination that 8 the permit was current and that they recognized that 9 determination, so I don't think it's fair to 10 contradict their petition here.
11 Secondarily, as Mr. Tafur conceded, the 12 New York State Department of Environmental 13 Conservation's position and Riverkeeper's position is 14 there must be a 316(b) determination in its SPDES 15 permit. Therefore, if there is a SPDES permit, it 16 must contain the 316(b) determination.
17 In other words, there cannot be a SPDES 18 permit without a 316(b) determination and the SPDES 19 permit therefore satisfies 51.53.
20 I was interested that he raised concerns 21 about duplication. The concerns about duplication are 22 the very concerns that motivated Congress' passage of 23 511, Section 511, which informed the passage of 51.53 24 in the Vermont Yankee decision. And there, the 25 Commission concluded that it would be duplicative for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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600 1 this Board to reach the same conclusions and 2 determinations on entrainment impingement and heat 3 shock issues if there is a SPDES permit and proscribed 4 this Board from doing so.
5 JUDGE WARDWELL: Elaborate on what you 6 mean by 511.
7 MS. ZOLI: Section 511 of the Clean Water 8 Act prohibits not only this Board from providing an 9 alternative thermal limitation, it actually states 10 that this Board is proscribed from reviewing any 11 effluent limitation or other requirement in a permit.
12 And the word review is contained in the statute and 13 Commission precedent interprets that provision as 14 proscribing this Board from considering any aspect of 15 316(b) or 316(a) that are included in the SPDES 16 permit. Since there is a SPDES permit and it is 17 current, according to the New York State DEC, that's 18 the end of the analysis for this Board.
19 CHAIRMAN McDADE: Do you have the U.S.C.
20 cite for Section 511 of the Clean Water Act 21 immediately handy?
22 MS. ZOLI: Yes, certainly, Your Honor.
23 It's 33 U.S.C. Section 1371, subsection C2. And the 24 review prescription is in A and the prescription on 25 imposing an alternative effluent limitation is in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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601 1 subsection B.
2 CHAIRMAN McDADE: Thank you.
3 MS. ZOLI: You're welcome.
4 MR. TAFUR: Your Honor, if I may respond.
5 CHAIRMAN McDADE: I'm not sure she's done.
6 MS. ZOLI: I'm not done yet. Please.
7 CHAIRMAN McDADE: Okay.
8 MS. ZOLI: I want to mention that Your 9 Honor is correct that a SPDES permit is effectively a 10 manifestation of the State approval. That's precisely 11 the point here and it's the reason that the State's 12 SPDES permit is enough.
13 And lastly, so the record is clear, the 14 references in Chapter 4 reflect all of those documents 15 that have been provided and therefore are on ADAMS and 16 available. And it includes the Hudson River 17 settlement agreement, dated December 19, 1980; the 18 1987 State Pollutant Elimination Systems SPDES permit; 19 the fourth amended stipulation of settlement and 20 judicial consent order; the draft State Pollutant 21 Discharge Elimination System; and the FAQ sheet for 22 the New York State Pollutant Discharge Elimination 23 System. So that is the entire suite of permits and 24 the documents, the HRSA and the consent order that Mr.
25 Tafur mistakenly believed were not included.
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602 1 JUDGE WARDWELL: I heard an interesting 2 argument yesterday I'd like to pursue a little bit 3 more and that was by also including a description of 4 the impingement entrainment and the other items that 5 you included in your license application that as I 6 hear you now say aren't really required as long as 7 you've provided the things you just said you provided, 8 is a waiver of your -- of the abilities for now the 9 Petitioners to not to go ahead and attack your 10 description of that under this process.
11 MS. ZOLI: I suppose it's not the first 12 time I've heard a prudent position by an Applicant 13 being construed as a waiver. So the fact that Entergy 14 also chose to provide information I think is a credit 15 to Entergy and cannot reasonably, as a matter of law 16 be interpreted as a waiver and I know no legal, no 17 case law or no other precedent that would support 18 treating it as a waiver * (10:43:08), nor do I think 19 that New York State DEC Council mentioned anything.
20 JUDGE WARDWELL: I'm not sure anyone heard 21 the last two sentences, your mic somehow got turned 22 and you weren't speaking into it.
23 MS. ZOLI: Nor do I think that New York 24 State DEC Council provided any.
25 JUDGE WARDWELL: Thank you.
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603 1 MR. TAFUR: Thank you, Your Honor. First 2 point is they clarified that we have no problem with 3 Entergy having a valid permit. So let's get to that 4 one quickly.
5 Now 511, we have a different position from 6 New York. We don't think and we're not asking the 7 Agency to impose anything. We're asking you to 8 analyze what you're required to analyze this category 9 2. That's a difference in position and while we 10 support the entire arguments that are very much in 11 line with us, that's one difference I need to point 12 out.
13 The third point is the Seabrook position 14 is really instructive here. Seabrook tells that the 15 permitting agency, meaning DEC here for EPA --
16 JUDGE WARDWELL: Seabrook --
17 MR. TAFUR: The Seabrook decision and the 18 cite for that is CLIC 781 and you can find it at 7 NRC 19 26.
20 Seabrook tells you because there's many 21 Seabrook decisions, you're right, Your Honor. The 22 permitting agency, here the DEC, determines what 23 cooling system a nuclear power facility may use. NRC 24 is required to factor the impacts resulting from the 25 use of that system into the NEPA analysis. That's the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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604 1 very focused assessment that we will ask for here and 2 we don't want to litigate things twice. It's hard for 3 us. We just want to do it as a purpose. It requires 4 resources. But we can't be -- we can't let down our 5 historic responsibility here or our legal duty under 6 NEPA to have that performing the right way.
7 Now the last point that you addressed with 8 Ms. Zoli is very interesting which is whether -- what 9 effect do we give to Entergy trying to get it both 10 ways? The permit is compliant with those very old 11 supporting analysis or what they're giving us right 12 now which is really only one page and a half for each 13 of the three impacts that they're required and they're 14 all focused on their own assessment.
15 They can't have it both ways. Are you 16 going to do one? Are we going to take the permit with 17 what it carries with it or are we going to take this 18 very specific two-page section written on because I --
19 they do address a lot of background. They do 20 reference a lot of documents, but the analysis is 21 thin. It's bare bones and the analysis on thermal is 22 just five words. We comply with the standards.
23 There's no real analysis.
24 So which one is it?
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605 1 like to address one other issue that I hadn't raised 2 and then I'll see if I can ask some questions of the 3 staff to address your last statement which I find 4 interesting.
5 Before that, I'd like to ask one more view 6 and that is do you have -- do you agree that a New 7 York State SPDES permit does -- is consistent with all 8 aspects of the Clean Water Act?
9 MR. TAFUR: Yes, Your Honor. The coming 10 permit will be a full review of that. The first 11 permit, the '82 and the '87 were very particular 12 because they were supported by the Hudson River 13 settlement agreement. It was a settlement.
14 JUDGE WARDWELL: So by issuing that permit 15 and the fact that New York State cannot issue it 16 without meeting all the requirements of the Clean 17 Water Act, by definition says the 316A and B 18 determinations demonstrations have been achieved. Is 19 that not a logical linkage of thought?
20 MR. TAFUR: Yes, Your Honor, but in the 21 context of the Hudson River settlement agreement, we 22 all agreed that they were in full compliance with the 23 conditions and the text that's in there because EC 24 have to get them a permit. So if we have a settlement 25 and we don't put that in there, the conditions are in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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606 1 the permit.
2 That situation expired. The settlement 3 agreement expired in '91 and we extended it until '98.
4 By then things collapsed. Then by early 2000 Brodsky 5 brought a lawsuit and the Agency started the 6 permitting proceeding in 2003 and that's where we're 7 now.
8 JUDGE WARDWELL: Thank you. Turning to 9 the Staff, could you reiterate again what you require 10 specifically in the ER for these determinations that 11 we're talking about now?
12 MR. CHANDLER: Yes, Your Honor. As we 13 said yesterday, our interpretation of 14 51.53(c)(3)(2)(b), so long as the 316B determinations 15 have -- valid 316B determination has been submitted, 16 there is no analysis that is required to be conducted 17 in the environmental report. That's not to be 18 confused with the analysis that the staff will do in 19 the Supplemental Environmental Impact Statement.
20 JUDGE WARDWELL: Thank you.
21 CHAIRMAN McDADE: So you stick with the 22 position you took yesterday in response to New York 30 23 when I was reading the regulations differently, that 24 I was wrong and I'm still wrong.
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607 1 Your Honor.
2 JUDGE WARDWELL: If you asked Entergy to 3 submit an analysis of heat shock, impingement and 4 entrainment in the ER, would they be -- would they 5 have sound, legal authority to refuse that request?
6 MR. CHANDLER: I don't believe so, Your 7 Honor, because we would still require information for 8 our own review in the Supplemental Environmental 9 Impact Statement. And even if that information 10 weren't provided in the --
11 JUDGE WARDWELL: That's what I asked. If 12 you asked them to supply it as part of the ER, would 13 they be on solid, legal precedent or authority in your 14 opinion to respectively decline to do that?
15 MR. CHANDLER: No, Your Honor. The Reg.
16 Guide 4.2, Regulatory Guide 4.2, Supplement 1, which 17 refers to license renewal, Section 4.2 states that --
18 provides guidance for the Applicant that they will 19 need to supply additional documents that are 20 requested. So they wouldn't be able to say -- they 21 would not be able to just absolutely refuse to supply 22 any documentation.
23 JUDGE WARDWELL: But they wouldn't 24 necessarily have to do it as part of the ER. They 25 could do it as part of an RAI?
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608 1 MR. CHANDLER: Yes.
2 JUDGE WARDWELL: And that's where I was 3 going with the next question that if you asked it 4 under an RAI, wouldn't they need to do that?
5 MR. CHANDLER: Yes, they would.
6 JUDGE WARDWELL: In order to complete your 7 needs to evaluate it under an EIS?
8 MR. CHANDLER: Yes, they would, Your 9 Honor. That's correct.
10 CHAIRMAN McDADE: Okay, and this is 11 following up under discussion from yesterday on New 12 York 30. At that point I posited the possibility that 13 they might need to provide more than simply the permit 14 itself to satisfy this requirement.
15 Entergy indicated well, we have in this 16 particular instance. We weren't required to, but we 17 have. And the question then arose in the event that 18 the Staff were to submit a request for additional 19 information again beyond just do you have a permit, 20 but asking for the underlying information, whether or 21 not Entergy would be required to supply that 22 information since it has nothing to do based on what 23 the staff -- the position the staff has taken, with 24 any requirement to supply information as part of the 25 ER. And you're indicating that you believe the Reg.
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609 1 Guide would be such -- and again, not -- one 2 understands that generally speaking when the 3 regulatory agency asks for something, the person who 4 is trying to get a license from the regulatory agency 5 is predisposed to supply it, but what we're requesting 6 is whether or not they had an obligation to under the 7 interpretation given by the staff yesterday. And it's 8 your position that they do, based on the Reg. Guide, 9 have an obligation to supply that even though it is 10 not an integral part, a necessary part, of the ER in 11 the first instance?
12 MR. CHANDLER: Yes, Your Honor. That 13 would be our position.
14 CHAIRMAN McDADE: And is that Entergy's --
15 is that consistent with your view as well?
16 MS. ZOLI: Yes, Your Honor.
17 CHAIRMAN McDADE: Okay. It's now about 10 18 minutes of 11. What I would propose to do is that we 19 take a 10-minute break at this point in time and then 20 come back for the remaining two Entergy contentions 21 and see if we can resolve those before lunch, and then 22 break after that for lunch, and then come back.
23 JUDGE WARDWELL: You said Entergy.
24 CHAIRMAN McDADE: I'm sorry, the 25 Riverkeeper contentions. Thank you. And then come NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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610 1 back after lunch with the remaining, with Clearwater.
2 We are in recess for 10 minutes.
3 (Off the record.)
4 CHAIRMAN McDADE: Okay. We're ready to 5 proceed with Riverkeeper Environmental Contention 2 6 which alleges that the environmental report fails to 7 satisfy the requirements of the regulation because its 8 analysis of the baseline of the severe accidents is 9 incomplete, inaccurate, non-conservative and lacking 10 in scientific rigor.
11 Why don't we start? How do you believe 12 it's incomplete? Can you summarize for us in what way 13 do you believe the environmental report is incomplete?
14 MS. CURRAN: I think we've laid out the 15 elements in our contention. First is it has not 16 addressed the environmental impacts of an accident or 17 intentionally cause an attack on the spent fuel pools.
18 Second, it has not analyzed the environmental impacts 19 of an intention attack on the reactor itself. Third, 20 it has failed to properly consider the contribution to 21 severe accident cost from severe accidents involving 22 reactor containment bypass by induced failure of steam 23 generator tubes.
24 (Off the record discussion.)
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611 1 contention is our concern about the inadequate 2 analysis of the consequences of an accident which is 3 Subpart 2 of the contention.
4 CHAIRMAN McDADE: Okay. Let me ask first 5 of all with regard to the initial aspects of a failure 6 to consider the possibility or the impact of terrorist 7 attack on the spent fuel pools, on the reactor itself.
8 Those have been identified by the Commission as 9 category one issues outside the scope of this 10 proceeding. Have they not?
11 MS. CURRAN: I'm not sure that intentional 12 attacks were put into a category in Appendix B. We 13 have the Oyster Creek decision in which the NRC ruled th 14 that except for the 9 Circuit it's not going to 15 address the environmental impacts of intentionally 16 attacks on nuclear facilities. But I really don't 17 know whether that is specifically addressed in 18 Appendix B.
19 CHAIRMAN McDADE: Is there anything 20 specifically factually relevant in this case that 21 would distinguish it from Oyster Creek that would 22 allow us to make a different decision than the 23 Commission did in the Oyster Creek decision in New 24 Jersey?
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612 1 your question into two parts, Indian Point is an even 2 larger metropolitan area in which the consequences of 3 an attack would be even more severe. Frankly, I don't 4 think that there is anything that distinguishes this 5 case for purposes of the Commission's analysis of how 6 it's going to deal with the issue of whether NEPA 7 requires it to consider the impacts of an intentional 8 attack on a nuclear facility.
9 The Commission, except for one member of 10 the Commission, the majority of the Commission has 11 unilaterally, unequivocally held that under no 12 circumstances is it planning to do that in any circuit 13 but the 9th Circuit. So I don't think there's any 14 distinction that would make an amenable difference.
15 But we do ask you to rule on the admissibility of the 16 contention and refer the issue to the Commission.
17 And we'd also like to request that with 18 respect to the question of environmental impacts of 19 either an accident or an intentionally caused accident 20 and attack on the spent fuel pools that the Board 21 admit the contention and hold it in abeyance pending 22 the outcome of the rulemaking petition that is now 23 before the Commissioners.
24 CHAIRMAN McDADE: And what authority would 25 be have to do that, to suspend the proceeding until NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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613 1 the conclusion of a rulemaking?
2 MS. CURRAN: We're not asking you to 3 suspend the proceeding. We're asking you -- I'm 4 assuming -- I suppose you might have to do that if no 5 contentions were admitted. But assuming other 6 contentions are admitted, this would be to merely hold 7 this particular contention in abeyance pending the 8 outcome of the rulemaking petition.
9 It's our position that although the NRC is 10 allowed to address the issues of whether accidents or 11 attacks on the spent fuel pool are reasonably 12 foreseeable and can address those in a generic context 13 that whatever the result is of the generic proceeding 14 it has to be plugged in to the license renewal 15 decision for the individual facility in question and 16 that's a Baltimore Gas & Electric which we cite, I 17 think, in our reply.
18 So the purpose of asking you to admit the 19 contention is to ensure that whatever the result is of 20 that rulemaking petition becomes a decision in this 21 license renewal proceeding which can be either applied 22 or if we're dissatisfied with it appealed.
23 CHAIRMAN McDADE: Now with regard to the 24 remainder of the contention, it's alleged that Entergy 25 used an inappropriate source code. Can you explain NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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614 1 that for us? Specifically, what about the source code 2 you believe was inadequate?
3 MS. CURRAN: So you're now moving to 4 Subpart 2 of the contention.
5 CHAIRMAN McDADE: Yes.
6 MS. CURRAN: I'd just like to request. If 7 you have any questions about Subpart 1, I have Dr.
8 Thompson here to help me with any technical aspects of 9 your questions. I also have Dr. Lyman here to help me 10 with Part 2. So if you don't have any questions about 11 Part 1, I'll ask Dr. Lyman to come up.
12 CHAIRMAN McDADE: Not technical questions.
13 I think that was adequately put out in the papers that 14 you submitted and our issue with regard to Part 1 is 15 primarily a legal issue and I think that you've been 16 able to address that for us and we understand what the 17 position is of Riverkeeper with regard to that.
18 MS. CURRAN: Okay. Part 2, Part 1 -- I'm 19 sorry.
20 (Off the record discussion.)
21 MS. CURRAN: I just want to ask a 22 clarifying question. Are you asking me about the 23 issue of the bypass, the reactor containment bypass 24 issue?
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615 1 specifically with regard to the challenge to the 2 source code used. It was indicated, was it not, that 3 --
4 JUDGE LATHROP: Source terms.
5 CHAIRMAN McDADE: Pardon?
6 JUDGE LATHROP: Source term.
7 CHAIRMAN McDADE: Source term. I'm sorry.
8 I misspoke. The source term that was used.
9 (Off the record discussion.)
10 MS. CURRAN: Perhaps you could -- Could 11 you be more specific about your question?
12 JUDGE WARDWELL: I think you have 13 contended that you had inadequate consequence from 14 severe accident by underestimating the population dose 15 and offsite doses due to the use of a source term that 16 results in low, mean offsite accident consequences 17 where the MAAP is less than the NRC guidance using 18 NUREG 1465 as an example.
19 (Off the record discussion.)
20 JUDGE WARDWELL: They also go on to say 21 failure to adequately consider uncertainties resulting 22 from meteorological variations and then inappropriate 23 use of a 2000 per person rem dose conversion factor.
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616 1 and my question was how is source term defective. If 2 you could articulate that for us.
3 MS. CURRAN: I'm sorry. Would you repeat 4 the question?
5 CHAIRMAN McDADE: How do you believe that 6 that source term is defective? Why do you believe 7 that it results in a low mean, offsite accident 8 consequence?
9 (Off the record discussion.)
10 MS. CURRAN: Dr. Lyman performed the study 11 using the NRC source term, NUREG 1465, and came up 12 with a significantly different result. Now we do have 13 access to the Code that Entergy used, but we submit 14 that it is significant and admissible here that using 15 a publicly available code Dr. Lyman came up with a 16 much more conservative result, significantly 17 different.
18 (Off the record discussion.)
19 MS. CURRAN: We also have given your 20 examples of where the NRC compared its code to the 21 MAAP code and found that the MAAP code results in 22 significantly lower consequences. This in our view --
23 NEPA requires the Agency to take a hard look and to 24 use the best available science and we submit that this 25 requires the NRC to be conservative in its NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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617 1 assessments.
2 And we have here an instance where using 3 the publicly available code the consequences are much 4 more serious than --
5 (Off the record comment.)
6 MS. CURRAN: I need to clarify. The 7 source term is publicly available. It's the code that 8 is not publicly available.
9 CHAIRMAN McDADE: Okay. Let me pose a 10 question to the staff. In your reply, you indicated 11 that that the fact that one code is used as opposed to 12 another doesn't raise an admissible contention unless 13 some showing has been made that the code that was used 14 is defective or was used in an inappropriate manner.
15 Now what Riverkeeper, I believe, is 16 suggesting is the fact that when they ran it using the 17 code in 1465 they got a significantly different 18 result. Doesn't that raise a factual issue, a general 19 dispute, a genuine dispute here, that warrants further 20 inquiry during the course of a hearing and if not, why 21 not?
22 MS. MIZUNO: Your Honor, there was a 23 reluctance on our part to delve too much into the 24 merits, the technical merits, of this matter. But as 25 you've raised some, let me try to explain very NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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618 1 briefly.
2 The issue with 1465 is the fact that if 3 you look what 1465 addresses, NUREG 1465 addresses a 4 core meltdown with a release to containment and those 5 are the source terms that are being discussed there.
6 However, the source terms that are being discussed in 7 Riverkeeper's contention are, the source terms that 8 they challenge there, are for release via containment 9 bypass. Those are two very, very different events 10 and, for that reason, we don't believe NUREG 1465 is 11 applicable.
12 JUDGE WARDWELL: The fact that you have 13 raise and discuss the technical merits here, doesn't 14 that kind of imply that it's worthwhile to vet this at 15 a hearing?
16 MS. MIZUNO: Only if the contention has a 17 sufficient factual basis, Your Honor, and that's the 18 problem that we think the factual basis is inadequate.
19 CHAIRMAN McDADE: I want to make sure I 20 understand what your position is and, as I understand 21 it, it's as follows, that running these two 22 calculations you would expect to get a different 23 result because you are starting with a significantly 24 different source term and that therefore there is no 25 indication, there's no basis, that we can take that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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619 1 leap of faith, that jump, that the fact that when it 2 was run using one source term by Riverkeeper and a 3 different source term by Entergy you had different 4 results. That does not imply in any way that the code 5 that was used was defective or was used in an 6 inappropriate manner. Just the opposite, those 7 disparate results would be expected based on the 8 disparate source code that was used, each describing 9 a significantly different event, one event being a 10 core meltdown and the other being a containment 11 bypass. Do I correctly understand what the staff's 12 position is?
13 MS. MIZUNO: Yes, Your Honor. You put it 14 very well. Thank you.
15 JUDGE WARDWELL: But wouldn't a discussion 16 of what's the appropriate source term to be used in 17 whatever code is being run whether it's a publicly 18 domain one or the one that you're using, warrant 19 discussion at a hearing?
20 MS. MIZUNO: Just a moment, sir.
21 (Off the record discussion.)
22 MS. MIZUNO: Your Honor, it's the staff's 23 view that in order to demonstrate admissibility the 24 burden is on the Intervenor or the Petitioner to show 25 that they've generated an admissible contention and we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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620 1 do not believe that they've made that showing in this 2 instance. They need to show how as put very well by 3 Judge McDade that the code that they are putting 4 forward, sorry, that the code that is being used by 5 the Applicant is deficient in some way and that they 6 have not done.
7 JUDGE WARDWELL: Thank you.
8 CHAIRMAN McDADE: From the standpoint of 9 Riverkeeper, are you indicating that the code was 10 defective or are you indicating the analysis that was 11 done was defective because in your view it should have 12 used the source code from 1465 rather than a different 13 source code?
14 (Off the record discussion.)
15 CHAIRMAN McDADE: Term.
16 (Off the record discussion.)
17 MS. CURRAN: So we are talking about the 18 difference in the source term and, in our view, the 19 fact that the NRC has an experimental validated source 20 term, NUREG 1465, in comparison to one that has not 21 been validated, has not been vetted by the NRC and the 22 NRC's yields higher consequences that this is reason 23 to admit the contention for purposes of determining 24 whether the environmental analysis done by Entergy for 25 purposes of satisfying NEPA was adequate.
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621 1 CHAIRMAN McDADE: Okay. From the 2 standpoint of Entergy, is your application incomplete 3 because you did not run using the source code from 4 1465?
5 JUDGE WARDWELL: Term.
6 CHAIRMAN McDADE: Term.
7 JUDGE WARDWELL: Whenever he says "code" 8 --
9 CHAIRMAN McDADE: Substitute the word 10 "term" and maybe I should just instruct the 11 stenographer to do that and then we won't have to 12 worry about it.
13 (Laughter.)
14 JUDGE WARDWELL: Just stomp your foot when 15 you get to that. Don't even say anything.
16 MR. O'NEILL: No, Your Honor. The short 17 answer is we think that the approach that we used is 18 -- The microphone is not on. I apologize.
19 CHAIRMAN McDADE: While you're trying to 20 get the microphone on, once I use a word the first 21 time I tend to continue to use it wrong. I studied 22 German years ago and Himbeer, Erdbeer, strawberries, 23 raspberries, I've always gotten it wrong. Can't get 24 it right. So code, term, I know what I'm talking 25 about. I'm using the wrong word. I apologize.
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622 1 MR. O'NEILL: Your Honor, the short answer 2 --
3 CHAIRMAN McDADE: But now your microphone 4 is on. Okay.
5 MR. O'NEILL: Yes, it is. The short 6 answer is we think the approach we used is reasonable, 7 consistent with industry guidance and practice. We 8 really don't think that Riverkeeper is providing a 9 sufficient basis to compel us to redo the entire SAMA 10 analysis using source term values extracted from 11 another source.
12 I think this is just another good example 13 of a contention where a petitioner is saying our code 14 is better than your code or our input is better than 15 your input and that by itself shouldn't be sufficient 16 to give rise to what is the issue.
17 We do believe, to answer your question, 18 the application is complete in our view.
19 CHAIRMAN McDADE: Aren't they also saying 20 that as part of your SAMA you used a source code 21 specifically anticipating a containment bypass and 22 that under NRC guidance under 1465 it would have been 23 more appropriate to do it using a source term for a 24 core meltdown? Is that within the scope of their 25 contention?
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623 1 MR. O'NEILL: That's not my take on it.
2 I mean they do address the induced steam generator 3 tube rupture issue. I suggest that that needs to be 4 considered as part of the SAMA analysis.
5 CHAIRMAN McDADE: And that's more 6 consistent with the source code that you used than the 7 source code they're suggesting, source term.
8 (Off the record discussion.)
9 MS. CURRAN: I'm sorry. Mr. O'Neill is 10 not finished. But I just wanted to clarify a couple 11 points.
12 First, our contention has two parts. In 13 the first part, we assert that Entergy has not 14 considered the contribution to severe accident cost 15 from severe accidents involving reactor containment 16 bypass via induced failure of steam generator tube.
17 That's part one.
18 In part two, we challenged Entergy's 19 consequence analysis. It doesn't have to do with the 20 bypass issue. I just want to correct it. I think 21 that's what Ms. Mizuno thinks, but that's not correct 22 and if you look at Dr. Lyman's report at page seven he 23 explains that he used a source term derived from NUREG 24 1465 with regard to both a magnitude and the timing of 25 radionuclide releases. He then say, "We use a two NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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624 1 plume model based on the approach of NUREG CR 6295 2 that more realistically models the releases that would 3 occur in an early containment failure scenario." That 4 is the scenario that Dr. Lyman looked at, nothing to 5 do with bypass.
6 CHAIRMAN McDADE: Okay. Thank you.
7 MS. CURRAN: And one more point I wanted 8 to make. I think I heard Mr. O'Neill implying that we 9 were asking for some kind of academic exercise here, 10 that there's no point in redoing the SAMA analysis.
11 Our point is that the costs of an accident if one uses 12 the approach that Dr. Lyman takes, the costs are 13 significantly higher which makes the SAMAs, some of 14 the SAMAs that Entergy looked at and rejected, appear 15 now to be worth considering.
16 That's our main concern here. We want 17 Entergy to look at SAMAs that would be effective in 18 reducing or avoiding the consequences of a severe 19 accident.
20 Now if Entergy calculates that the costs 21 of the accident are relatively low, then the SAMA is 22 not going to be cost effective and not worthy of 23 consideration. Our point is that Entergy has 24 underestimated the cost and should redo it and with 25 those new cost estimates take another look at the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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625 1 SAMAs.
2 (Off the record discussion.)
3 MS. CURRAN: And the two source terms are 4 not equivalent because the source term in NUREG 1465 5 has experimental validation.
6 JUDGE LATHROP: Do I understand you 7 correctly? You're saying that both you calculated a 8 different problem, a different situation, and you used 9 a different source code.
10 MS. CURRAN: No.
11 (Off the record discussion.)
12 MS. CURRAN: In Entergy's SAMA analysis, 13 they looked at a range of failures, containment 14 failures.
15 JUDGE LATHROP: Entergy did?
16 MS. CURRAN: Entergy and we picked one of 17 those and looked at it.
18 JUDGE LATHROP: And you used for that a 19 different source term than Entergy did for that 20 particular and a --
21 MS. CURRAN: We used the source term in 22 NUREG 1465.
23 JUDGE LATHROP: And you used a different 24 model for plume?
25 MS. CURRAN: Yes. A different model for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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626 1 plume dispersion plus NUREG CR 6295.
2 (Off the record comment.)
3 MS. CURRAN: I'm sorry. It's not a 4 different model. I've misspoke. It's not a different 5 model for plume dispersion. It's a different model 6 for containment failure and early release.
7 JUDGE LATHROP: So I would categorize that 8 as a different problem starting point that you 9 analyzed than Entergy. No?
10 MS. CURRAN: No. And I'm afraid. This is 11 like I'm playing telephone here.
12 JUDGE LATHROP: Yes, I understand.
13 MS. CURRAN: It's very frustrating and I 14 feel my limitations as a lawyer. But I'm going to do 15 my best to continue doing this and I'll just hope 16 you'll take the time to let me speak accurately 17 because these are technical questions.
18 It is the same. We analyzed the same 19 problem as Entergy did as will be clear from Dr.
20 Lyman's report. But we used a different source term.
21 JUDGE LATHROP: Does Entergy agree with 22 that description of the disparity? I'm trying to 23 understand what the issue is here.
24 MR. O'NEILL: Your Honor, I think our 25 understanding is they looked at the same thing using NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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627 1 a different source term. Fundamentally, we view this 2 and again I sound like a broken record as a generic 3 challenge to a MAAP code. They state "the 4 radionuclide release fraction is generated by the MAAP 5 code are smaller for key radionuclides than the 6 release fraction specified in NRC guidance such as 7 NUREG 1465 and its recent reevaluation of high burn-up 8 fuel." And they claim that we should not rely on the 9 MAAP generated source terms and its SAMA analysis.
10 And our position is that we cite numerous 11 reasons why our reliance on the MAAP code is eminently 12 reasonable. It's been used extensively in the 13 industry. There's a MAAP users group, applicable EPRI 14 guidelines. I would note that it's been used by prior 15 licensees in their analyses and, in fact, in Oyster 16 Creek and recently approved by the NRC. They're just 17 applying a different code.
18 CHAIRMAN McDADE: But isn't that all the 19 issues we're hearing? Those are technical issues that 20 need to be vetted. They have raised legitimate issue 21 based on a documented NUREG and that's usually what 22 you Applicants really like to refer to.
23 So it seems like let's see what's involved 24 here to see whether your statements now are correct or 25 not. I don't see it as a balder conclusionary NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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628 1 statement in regards to that.
2 MR. O'NEILL: We just don't see adequate 3 foundation and I would take you back to the staff's 4 statement that they really haven't shown the MAAP code 5 to be defective and I remind you that again this is a 6 SAMA contention. It's a NEPA driven requirement 7 governed by the rule of reason and they need to show 8 that the results of our analysis are unreasonable.
9 JUDGE WARDWELL: Thank you.
10 CHAIRMAN McDADE: So as I understand what 11 you're saying, you're saying basically compared to Dr.
12 Lyman's analysis, same problem, different source term, 13 same code, different result, understandable because of 14 the different source term that was used. The analysis 15 that you have done is adequate under SAMA.
16 There is no reason to believe that 17 anything else should be done. The fact that he was 18 able to get a different result or did get a different 19 result using a different source term does not 20 undermine in any way the accuracy or the value of the 21 analysis that you did.
22 MR. O'NEILL: That's correct, Your Honor.
23 CHAIRMAN McDADE: And your view is that 24 given the different source term that you used that you 25 have raised a genuine issue as to the adequacy of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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629 1 SAMA analysis that was presented and that you believe 2 that that raises a genuine issue that requires 3 hearing.
4 MS. CURRAN: We have used a different 5 source term meaning the assumptions regarding the 6 magnitude and the timing of the release to the 7 environment yielding a very different result. But we 8 analyzed an early containment failure comparable to 9 the early containment failure scenario evaluated by 10 Entergy.
11 The technical difference is between NUREG 12 1465 and the MAAP code have not been sufficiently 13 analyzed or explained to provide an adequate level of 14 confidence that the environmental impacts of a severe 15 accident at Indian Point have been, can be, adequately 16 assessed and estimated, given a dollar value, for 17 purposes of evaluating whether SAMAs should be 18 implemented to mitigate or avoid those consequences.
19 CHAIRMAN McDADE: One of the limitations 20 here, and again this is an oral argument based on the 21 papers and we're talking with counsel here, it does, 22 however, sort of interreact with the expert 23 declarations that have been submitted. This is not an 24 evidentiary hearing and we're not in the position at 25 this hearing to take testimony from individuals.
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630 1 One possibility could be, I think, from 2 the discussion we've just had that the participants 3 can kind of understand the sort of nature of the 4 confusion that the Board might be having and I'm 5 wondering if it might be helpful if having now 6 understood our confusion in this particular area if we 7 were to allow a short period of time for you to submit 8 any clarification, just a brief clarification, say, no 9 more than five pages that would help us in this 10 particular area.
11 Would you have any objection to that?
12 MS. CURRAN: We'd be very glad to do that, 13 Your Honor. I wonder if the Board would be able to 14 give us particular questions just to that we can be 15 sure that we're engaging you in the way that's most 16 helpful.
17 CHAIRMAN McDADE: We kind of thought we 18 were giving you particular questions based on what 19 we've just been saying and you can understand that the 20 three members of the Board are looking at this and 21 seeing this thing a little bit different based on our 22 particular backgrounds. We're hoping to be able to 23 make sure that we all understand it correctly.
24 So again I'm not trying to push you in any 25 particular area. I understand the difficulties and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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631 1 for you to talk with Dr. Lyman and you want to make 2 sure that you're saying something that is totally 3 accurate. You don't want to misstate it in any way 4 and what I want to do is just, if possible, give you 5 an opportunity to have further consultation with your 6 expert and then to offer any additional clarification 7 in a very brief memo that you think would be helpful 8 to us and then likewise to find out whether or not --
9 and again we're not looking for an additional 10 declaration. We're just looking for clarification 11 from counsel based on what's already in the 12 declaration of Dr. Lyman, but just thought that it 13 might be helpful for you to have additional 14 consultation with him, take a little bit of time and 15 then perhaps address that.
16 And I take it the staff would have no 17 objection to that?
18 MR. TURK: Your Honor, I'm not sure 19 whether you're simply asking for a clarification for 20 the contention as written or --
21 CHAIRMAN McDADE: Yes. A clarification 22 based on the questions we have, again, not an 23 amendment to the contention and not additional expert 24 support, but just based on the questions that we have 25 posed here today. If Riverkeeper believes that they NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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632 1 can clarify it and perhaps better answers our 2 questions to give them that opportunity.
3 We are having people get back to us on 4 some other matters over the next short period of time 5 and rather than just sort of continue and perhaps 6 confuse the three members of the Board or at least 7 confuse me more than I'm confused already, just if 8 there was something that you thought would be helpful 9 to us as we go back based on this argument and 10 reexamine the declarations and the papers that have 11 already been submitted. That's what I'm proposing and 12 based given the limited scope of that I'm assuming 13 that the staff would not have an objection to that.
14 MR. TURK: We certainly object to your 15 proper understanding of the contention, but we think 16 the burden was upon the Petitioner that proffered the 17 contention to make sure it was understandable in the 18 20 pages that they filed as well as in their reply.
19 So I think if it's unclear, it's a failure of the 20 contention.
21 CHAIRMAN McDADE: It can also be a failure 22 on the Board to understand that and allowing them an 23 opportunity to try to educate us and at least at this 24 point accept that it's maybe our failure and 25 understanding rather than their failure in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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633 1 articulation.
2 Would Entergy have an objection to our 3 allowing them to submit a brief memo again explaining 4 this particular issue, trying to clarify it, rather 5 than just continue here until we get more confused?
6 MR. BESSETTE: Your Honor, it's certainly 7 in the interest of everybody for the Board to fully 8 understand this issue with the caveat that they do 9 stick to an explanation of the issues in their 10 pleading.
11 However, we and the staff have had to 12 respond to what they provided in their 20 pages and at 13 times, we were similarly confused. So to the extent 14 that they clarify something that we did not have the 15 benefit of regulatory duress in our response, I hope 16 we don't create a cascading of motions practice here.
17 Because if they clarify something that we didn't 18 understand to begin with and which our answer is based 19 on, Then we feel that we would be prejudiced.
20 CHAIRMAN McDADE: You would not be 21 prejudiced because you would then have an opportunity 22 to say based on what they've submitted and again the 23 cascade would be sort of a narrowing. If they 24 submitted five pages, you wouldn't be submitting 50 25 pages to respond to it. You would be submitting two.
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634 1 Again, all I'm trying to do is just sort 2 of narrow this. I want to make sure that I understand 3 it. I have some confusion. I can go back based on 4 what we have talked about here today and reread the 5 materials and discuss it with my colleagues.
6 All I want to do is give them an 7 opportunity, if they took that opportunity certainly 8 to the degree that it explains that you took issue 9 with and again we're not asking them and we have 10 several motions pending with regard to motions to 11 strike replies and the case law and the standards on 12 that are relatively clear as to what can be added and 13 that the contentions cannot be expanded. Additional 14 support for those contentions can't be added at later 15 parts of the proceeding without specific leave and 16 specific reason for it.
17 I'm not asking for a new declaration. I'm 18 not asking for a new contention. I'm just simply 19 asking perhaps if there was a new way to articulate 20 what has already been there so that I can better 21 understand it and whether or not Riverkeeper based on 22 my inarticulate questions and they may want to put the 23 words code and term on there several times so that I 24 can plug it in appropriately that's what I'm 25 suggesting.
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635 1 What I was trying to do is determine 2 whether or not the staff and Entergy had any objection 3 to that. As I understand it, neither the staff nor 4 Entergy has an objection to me understanding the 5 contention.
6 MR. BESSETTE: No, subject to the 7 limitations Your Honor has provided on that 8 supplementation we don't object. However, should they 9 depart from that guidance, we certainly don't waive 10 any of our rights to seek motions to strike or a stay 11 at a late filed contention. With those 12 qualifications, we don't object.
13 CHAIRMAN McDADE: Thank you.
14 MS. CURRAN: Judge McDade, I just want to 15 make an alternative suggestion. I feel a little bad 16 because I think maybe one of the problems is that I'm 17 not channeling Dr. Lyman adequately and I know that 18 over the course of the last couple days the Board has 19 had a number of technical questions for counsel for 20 the various parties who have been helped by their 21 staff members, their experts, to explain what is our 22 review process, what's the kind of analysis we did 23 here.
24 Would it be possible for you to ask Dr.
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636 1 into the record but just to explain some of these 2 issues?
3 CHAIRMAN McDADE: I don't want to get into 4 anything that even smacks of an evidentiary hearing 5 here. I mean, what Dr. Lyman has said in his 6 declaration is what we're going to be basing the 7 adequacy of this aspect of the contention on. All 8 that I'm looking for is just some help in better 9 understanding that and also before we do this perhaps 10 just to consult with my colleagues because my 11 colleagues may or may not want this or may want more 12 or may want less.
13 MS. CURRAN: Judge, could I just make one 14 request if you're going to go the route of having us 15 provide some supplemental information? Could you give 16 us enough time to let the transcript get into the 17 public document room which I think is usually about 18 ten days?
19 CHAIRMAN McDADE: I believe the transcript 20 here is going to be ready far before that and what we 21 will do is to furnish you a copy of the transcript 22 immediately so that you don't have to wait until it 23 gets into the public document room and again the 24 transcript of the colloquy we have had here, not the 25 entire transcript. We will get that to you so that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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637 1 you can perhaps better craft anything that you wish.
2 MS. CURRAN: Thank you.
3 (Off the record discussion.)
4 MR. TURK: Your Honor, Riverkeeper's reply 5 on this contention went on at length and I'm wondering 6 if there's anything -- if Ms. Curran would take a 7 moment to look at their reply and determine is there 8 anything more that they would have to say in response 9 to the staff and Entergy's objections beyond what they 10 said in the additional 20 pages of reply which is in 11 addition to the 20 pages of the original contention.
12 Is there really anything more that they need to say 13 beyond what's in that reply?
14 CHAIRMAN McDADE: It may simply be that 15 they will say, "No, there isn't." But having read the 16 reply, they can understand what my confusion is here 17 and it may just simply be as I said that there's no 18 better way that it can be articulated and my 19 colleagues don't seem to have the same difficulties 20 that I do with the understanding. So perhaps in our 21 consultations I will come to better understanding.
22 All this was again is just simply an 23 opportunity. I understand, have read the pleadings.
24 Yes, this has been addressed. It was addressed in the 25 original petition. It was addressed in the reply.
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638 1 And I just want to make sure I've 2 expressed some of my -- what I thought was said. Some 3 of you have agreed that you think that accurately 4 describes it. Others aren't and so I just wanted to 5 give that opportunity to perhaps clarify.
6 But at this point, I think it might be 7 appropriate to move on to Environmental Contention 3.
8 MS. CURRAN: Judge McDade, I just want to 9 make sure I understand that there were some other 10 significant portions of the Contention EC2, the 11 contention bypass issue, the other consequence issues.
12 You have no further questions on those.
13 CHAIRMAN McDADE: And as just articulated 14 by Mr. Turk and I think by myself, the papers were 15 quite extensive and the purpose here was just simply 16 to hopefully clarify those areas where we had 17 questions and those areas the papers pretty well 18 answer the questions that we might have, there was no 19 need for us to ask additional questions here today.
20 It doesn't indicate that we will formed an opinion one 21 way or another with regard to the matters put forward 22 in that. Just that from the papers there were no 23 further questions that arose.
24 MS. CURRAN: Okay. Thank you.
25 CHAIRMAN McDADE: With regard to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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639 1 Environmental Contention 3 that has to do with 2 environmental impacts of radioactive water leaks from 3 Indian Point 1 and Indian Point 2 spent fuel pools on 4 the groundwater and the Hudson ecosystem. Again, this 5 is somewhat similar to New York Contention 27 and 6 again part of these is that although the contentions 7 are totally separate, sometimes questions that we may 8 have had with regard to this general area have been 9 answered and there's no sense for us to take your time 10 asking questions when we feel that we understand the 11 issue.
12 The first issue that I have with regard to 13 this is that is this a category 1 issue that is 14 outside the scope of this hearing and if not, why not?
15 JUDGE WARDWELL: Is it 27 or 28 of New 16 York State that this is?
17 MR. MUSEGAAS: Twenty-eight, Your Honor.
18 CHAIRMAN McDADE: I'm sorry.
19 MR. MUSEGAAS: I'm sorry, Judge. You're 20 asking me the question.
21 JUDGE WARDWELL: I interrupted. Sorry.
22 CHAIRMAN McDADE: He was asking me.
23 JUDGE WARDWELL: I just wanted to make 24 sure I had it clarified.
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640 1 was --
2 JUDGE WARDWELL: No, I was asking other 3 people, anyone. I didn't know who.
4 CHAIRMAN McDADE: I had referenced the 5 wrong New York contention and I thought he was asking 6 the question to clarify it instead of just saying, 7 "You dope, you didn't know your number."
8 JUDGE WARDWELL: Otherwise, I'd be what 9 they call behind the power curve the whole time during 10 this discussion. I never catch up to you. But I had 11 to get it out whether it was 27 or 28. So I apologize 12 for jumping in there. But it helps me to know.
13 CHAIRMAN McDADE: Okay. The question is 14 why would this not be a category 1 issue outside the 15 scope of this proceeding?
16 MR. MUSEGAAS: Well, I think as we said it 17 in our pleadings the factual information regarding 18 these leaks and the significant action for better or 19 worse undertaken by the NRC technical staff at Region 20 1 and at Headquarters to address this fairly 21 widespread problem of groundwater contamination that's 22 arisen in the last couple of years makes it a new 23 issue and I think that if you look at Appendix B there 24 is not a clear correlation. There is not a clear 25 impact outline in Appendix B that correlates factually NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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641 1 with the situation we have here especially at Indian 2 Point.
3 CHAIRMAN McDADE: Can you summarize for us 4 very briefly the new information that you feel 5 invalidates the conclusions of the GEIS?
6 MR. MUSEGAAS: Your Honor, I would 7 respectfully respond that I'm not sure which -- Based 8 on what the NRC staff was asserting the parts of 9 Appendix B that would come into play here, I think 10 this is clearly a factually different situation. I 11 don't think Appendix B addresses leaks of plant 12 systems into groundwater and into the environment that 13 could potentially cause damage to the ecosystem or 14 affect drinking water supplies.
15 So that is our difference. Am I 16 understanding your question?
17 CHAIRMAN McDADE: I guess the follow-up 18 that I would have here is given the facts that you've 19 put forward is this not something that would be more 20 appropriate to be taken up in a 2.335 waiver, in other 21 words, saying that, yes, there is a generic 22 environmental impact statement. However, the purposes 23 of that generic environmental impact statement would 24 not be served applying it in this particular instance 25 because of facts which are unique to this particular NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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642 1 facility.
2 So my question is without that kind of a 3 waiver here aren't we bound by the generic 4 environmental impact statement as it currently exists 5 or is the new information of such a nature that we 6 could proceed based on within the contention before 7 us.
8 MR. MUSEGAAS: I would say that the 9 information that we've presented, the factual 10 information, from our perspective we don't need to 11 reach the point of asking for a waiver of category 1 12 issue because we don't believe this is a category 1 13 issue. We don't believe the groundwater leaks are 14 reflected or were assessed in the GEIS which is the 15 basis for Appendix B. So, as a result of that, this 16 is neither a category 1 or category 2 impact as we 17 understand the regulations.
18 CHAIRMAN McDADE: And basically this is 19 outside the scope of normal plant operations, what the 20 GEIS had to do with exposure based on normal plant 21 operations and that this is something beyond that.
22 MR. MUSEGAAS: Yes, Your Honor.
23 CHAIRMAN McDADE: What's the reaction of 24 the NRC staff to that?
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643 1 referenced Contention New York 28, that was very 2 helpful. That was -- Our response with respect to New 3 York 28 holds here as well because it's very much we 4 view the same kind of contention.
5 As we said yesterday, the GEIS talk in 6 terms of radiological dose. It does not talk in terms 7 of the way in which that dose is effected. What it 8 talks in terms of is the dose and whether or not it's 9 within regulatory limits and that's what we tried to 10 convey yesterday and that's what we'll stand with, 11 Your Honor.
12 CHAIRMAN McDADE: Anything further on this 13 from Entergy?
14 MR. BESSETTE: Your Honor, we believe our 15 response yesterday with regard to New York 28 belies 16 we discussed groundwater issues are a category 1 17 issue. We understand your issue to 2.335. But we 18 believe the issue has been fully evaluated in our 19 environmental report and also the GZA report. We 20 don't believe that Riverkeeper raised any issues that 21 have not been thoroughly reviewed.
22 CHAIRMAN McDADE: Okay. It was adequately 23 addressed in your environmental report and in your --
24 MR. BESSETTE: Your Honor, in our response 25 to the New York Contention 28 and this Riverkeeper NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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644 1 contention which is EC3.
2 (Off the record discussion.)
3 MR. MUSEGAAS: Your Honor, if I may 4 clarify a point NRC staff counsel brought up to New 5 York Contention 28. I think that's what we're talking 6 about. I think we do have -- Although the contentions 7 are similar and obviously based on the same factual 8 situation, there are differences, I think, in 9 Riverkeeper's Contention EC3.
10 We specifically challenge the factual 11 information contained in the environmental report. In 12 Section 5, we disputed certain portions of that. So 13 I think we showed a genuine dispute there perhaps 14 unlike to a degree New York State's petition which 15 looked more generally. We focused on Entergy's 16 analysis of these leaks.
17 Entergy chose to do an analysis, give an 18 assessment, of this new and significant information.
19 They found it was not significant, but it was new. We 20 differ on that as we elaborated on in our reply. I 21 think part of the dispute is that we think these for 22 purpose of NEPA which is what we are under in this 23 contention these impacts are potentially significant 24 and Entergy did not make its case in the ER that they 25 are not significant.
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645 1 I don't know if that's helpful to you.
2 But that's our position.
3 MR. BESSETTE: Your Honor, we would note 4 that there is no expert support and, in fact, there is 5 no dispute on the data. There is a dispute on the 6 characterization of the data, whether it's 7 significant. But Riverkeeper has not disputed any of 8 the actual findings, any of the conclusions, any of 9 the groundwater studies, any of the dose calculations.
10 It's simply absent from their petition.
11 What they are challenging is the 12 characterization of significance and we believe that 13 our dose calculations which are unchallenged in their 14 petitions which are less than one percent of 3 15 millirem per year, it was certainly entirely 16 reasonable to characterize those as not significant.
17 CHAIRMAN McDADE: But in that regard, 18 would it not be permissible if we were to agree that 19 it were within the scope of this proceeding for them 20 to say, "We've looked at your data. We don't quibble 21 with the data. We agree with the data. But our 22 expert based on his training and experience draws 23 different conclusions from that data and we think 24 that's a genuine issue within the scope of the 25 proceeding."
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646 1 MR. BESSETTE: First of all, there is no 2 expert. So that's a fundamental issue here and they 3 haven't pointed to any problems with the data. So 4 that again undermines that assertion. So we believe 5 the premise of your question doesn't apply to 6 Riverkeeper's petition.
7 CHAIRMAN McDADE: But am I correct that 8 what you're saying is that their representations with 9 regard to the significance are not dispositive here 10 because it's not the basis of an expert opinion. It's 11 the basis of lay conclusions that would require an 12 expert opinion assessing the significance of that 13 data.
14 MR. BESSETTE: An expert opinion or some 15 factual opinion challenging the data we put forth.
16 And there simply is no challenge to that data.
17 CHAIRMAN McDADE: Okay. But, again, what 18 I'm trying to get at is the distinction between 19 challenging the data and challenging the conclusions 20 to be drawn from the data, the significance.
21 MR. BESSETTE: Your Honor, there would 22 have to be some basis to challenge our conclusions, 23 some factual expert testimony, other factual 24 information to challenge our conclusions and again 25 they haven't even done that.
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647 1 CHAIRMAN McDADE: Okay.
2 JUDGE WARDWELL: Have any of your reports 3 looked at the bio-accumulation of these contaminants 4 in biota?
5 MR. BESSETTE: Yes, Your Honor.
6 JUDGE WARDWELL: Thank you.
7 CHAIRMAN McDADE: Okay. I think that 8 answers the questions that we have with regard to the 9 Riverkeeper contentions. If Riverkeeper would like to 10 try to educate me with regard to that contention we 11 will allow you to do so. We would ask in the first 12 instance if you could just simply let us know by 13 Monday (1) whether or not you intend to do that, 14 whether you think it would be productive to do that 15 from your standpoint and (2) if so, how much time you 16 think you would need in order to do that 17 appropriately.
18 MR. MUSEGAAS: Thank you.
19 CHAIRMAN McDADE: Anything further 20 Riverkeeper would like to take up before we break?
21 MR. MUSEGAAS: I think we're find, Your 22 Honor. Thank you.
23 CHAIRMAN McDADE: From the standpoint of 24 the staff?
25 MS. MIZUNO: No, Your Honor.
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648 1 CHAIRMAN McDADE: From Entergy?
2 MR. BESSETTE: No, Your Honor.
3 CHAIRMAN McDADE: Okay. What I would 4 propose to do is that we break for lunch. It's now 5 just about 12:00 noon and we break for lunch until 6 1:00 p.m. and then come back with Clearwater at 1:00 7 p.m. We are in recess. Thank you. Off the record.
8 (Whereupon, at 12:00 p.m., the above-9 entitled matter recessed to reconvene at 1:04 p.m. the 10 same day.)
11 CHAIRMAN McDADE: On the record. The 12 hearing will come to order. We're here for a 13 continuation in the matter of Entergy Nuclear 14 Operations Indian Point Nuclear Generating Plants 1 15 and 2 License Renewal Proceedings Docket Nos. 50-247 16 and 286 LR. We are going to proceed this afternoon 17 with oral argument on the admissibility of contentions 18 submitted by Clearwater.
19 At this time, are the representatives from 20 Clearwater here and would you like to make an opening 21 statement?
22 MR. FILLER: Yes, we would. May I 23 proceed?
24 CHAIRMAN McDADE: Before you do, would you 25 please just identify yourself and those who are with NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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649 1 you for the record?
2 MR. FILLER: I will. My name is Stephen 3 Filler. I'm a Clearwater board member and I'm here 4 with Manna Jo Greene who is Clearwater's Director and 5 Michelle Lee, who is a Clearwater member.
6 CHAIRMAN McDADE: Okay, and what I would 7 ask is after we have the oral argument here today, 8 just if you have not already, please give your names 9 to the Court Reporter to make sure that he has the 10 spelling correct for them.
11 Ms. Greene.
12 MS. GREENE: Your Honor, I have a request 13 and that is I'm just getting over a cold and I'm 14 having great difficulty hearing and when I was over 15 there, it didn't matter. But it will matter while I'm 16 here. So I'm going to request that if you have a 17 question or a comment that you each speak up so I can 18 overcome this disability. Thank you.
19 CHAIRMAN McDADE: Okay. We will make an 20 effort and please don't be shy if you don't hear 21 something we say to let us know because we will be 22 looking for a reply and it's important that you reply 23 to what we're asking to be of assistance to us.
24 Did you indicate that you did want to make 25 an opening statement?
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650 1 MR. FILLER: Yes. Good afternoon, Your 2 Honors. Thank you very much for giving Clearwater the 3 opportunity to be before the Board.
4 Clearwater is a nonprofit organization 5 that was founded in 1966 with a mission to defend and 6 restore the Hudson River. Clearwater works primarily 7 through celebration, education and advocacy. We're a 8 membership-based, grassroots advocacy organization 9 with more than 4500 member organizations.
10 Each year we run the Great Hudson River 11 Revival Festival, a music, arts and environmental 12 celebration where 15,000 people gather for two days at 13 Clark Point, just seven miles from Indian Point.
14 Clearwater operates the nation's 15 environmental flagship, the Sloop Clearwater, that is 16 on the National Register of Historic Places for a 17 significance to the environmental movement. Over the 18 years, Clearwater has brought hundreds of thousands of 19 children and adults onto the sloop where it teaches 20 history, biology and environmental science and 21 frequently sails right by Indian Point.
22 Clearwater played a key role in passing 23 the Federal Clean Water Act in 1972. We've addressed 24 environmental problems caused by Indian Point 1 before 25 it closed and we've been actively addressing health, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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651 1 safety and environmental issues created by Indian 2 Point 2 and 3.
3 We proudly create networks of people and 4 network of groups and in our history we've created 5 numerous coalitions such as the Hudson River Water 6 Shed Alliance and the Friends of Clean Hudson.
7 With this experience and membership, 8 Clearwater is deeply concerned about an additional 20 9 years of operation of this aging, leaking, problem-10 ridden plant. Since 9/11 our concerns have raised 11 dramatically and we believe that Indian Point is 12 unique in concerns related to terrorism.
13 First of all, the 9/11 Commission stated 14 that Mohammed Atta had planned that Indian Point was 15 a target that Al Qaeda was considering. Compared to, 16 for example, Oyster Creek, Indian Point has two 17 reactors and three spent fuel pools and then, of 18 course, Indian Point is 20 million people within 50 19 miles of New York. So we think that Indian Point is 20 probably the No. 1 target if someone were looking for 21 a terrorist attack on a nuclear plant.
22 Clearwater is one of the few 23 organizations, I believe, that are participating here 24 pro se. Unlike Entergy, the NRC and our sister 25 organizations and agencies who have resources to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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652 1 retain lawyers with experience in nuclear relicensing 2 applications, we don't have these resources and we're 3 learning as we go. So we're asking your indulgence.
4 But at the same time, we believe this does 5 not diminish the value of the contributions we can 6 make to this proceeding. We believe that the 7 relicensing process should be a scientific inquiry 8 where the Board seeks to acquire the best information 9 available upon which to base its decision and we 10 believe that we can help bring these issues to the 11 Board.
12 With limited resources, we've raised six 13 important contentions. We may not have done this 14 perfectly and according with all the rules and regs of 15 the Board, but we believe we've raised critical issues 16 that must be addressed.
17 You'll note in our petition that for most 18 of our contentions we've supported and adopted 19 parallel contentions of the State of New York and 20 we've stated in our petition that the Attorney General 21 is authorized to act as a representative with respect 22 to those contentions pursuant to 10 CFR 2.309(f)(3).
23 In Entergy's answer on page 31 and also 24 page 47, they state that Clearwater should not be 25 allowed to adopt other's contentions unless Clearwater NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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653 1 has at least one admissible contention of its own. We 2 believe that Entergy is improperly relying on a 2001 3 decision that they cite in the papers, Con Ed Indian 4 Point, that predates the codification in 2.309(f)(3).
5 2.309(f)(3) provides in part that if a petitioner 6 seeks to adopt the contention, the sponsoring 7 petitioner, the petitioner who seeks to adopt must 8 agree that the sponsoring requestor or petitioner 9 shall as a representative with respect to that 10 contention.
11 We believe that we have done that. The 12 Con Ed decision cited in Entergy's papers which was 13 decided in 2001, 2.309(f)(3) was codified in 2004 and 14 Entergy is now attempting to rely on a statement from 15 the prior decision that the petitioner cannot adopt 16 another petitioner's issues unless it has one 17 admissible issue of its own, but that requirement was 18 not included in 2.309(f)(3). If the Commission had 19 intended for that to be an additional requirement it 20 would have included it in this codification of 2004.
21 In the 2006 Vermont Yankee decision, 64 22 NRC 131 in which Entergy again was a party the 23 Commission rejected the similar requirement stated in 24 the Con Ed Indian Point decision relating to the issue 25 of whether an adopting petitioner must have an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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654 1 independent ability to litigate the issue and, in 2 that, in the Vermont Yankee case, the Commission 3 rejected the requirement in light of the fact that it 4 had not been included in 2.309(f)(3). If the 5 Commission did intend, it was stated in that decision, 6 to create an additional adoption requirement we would 7 expect this requirement would appear in the 2004 8 codification of the procedures for procedures for 9 contention adopting.
10 The Vermont Yankee decision makes clear 11 that the adopting petitioner must agree that the 12 sponsoring petitioner will act as a representative 13 with respect to that contention or jointing agree on 14 a designated representative and because we've followed 15 that provision, we believe that we should be admitted 16 even if the Board finds that we haven't submitted an 17 admissible contention.
18 I'd like Ms. Greene to address to some of 19 the substantive issues in our contentions.
20 MS. GREENE: We believe that our unique 21 perspective as reflected through our presentation 22 will help the Board to make a better, more informed 23 decision. For example, in our leaks contention, we 24 note that strontium-90 is present in fish and crabs 25 both near the plant and that they presumed control NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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655 1 location across the river at Roseton. Entergy claims 2 inconsistency that these levels are both insignificant 3 and also that these levels excess what could 4 possibility be coming from the plant. Entergy also 5 challenges our contention that additional sources of 6 radioactivity may be a secondary plume leaking 7 concentrations of contaminated groundwater, 8 interfracture bedrock under the plant which may be 9 moving into the Hudson River at spots not monitored in 10 the current investigation.
11 If it is not a secondary plume, then what 12 is the explanation? Indian Point is the only nuclear 13 power plant and the only major source of strontium-90 14 in the Hudson Valley. This is a question that demands 15 an answer before a renewal application should be 16 granted.
17 We also note that the monitoring protocols 18 used to assess the levels of radioactivity in fish and 19 other aquatic species are inadequate. Twelve 20 specimens simply do not provide reliable sampling.
21 Nonetheless, these were positive for strontium-90. We 22 cited DEC Pathologist Ward Stone to this effect and 23 DEC's Barbara Youngberg agreed that more extensive 24 sampling would be undertaken by DEC. Rather than 25 responding to these concerns, Entergy disparaged these NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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656 1 comments because they were made at a public roundtable 2 discussion on Indian Point leaks convened by 3 Clearwater.
4 So the question is does the Board care 5 about procedural issues or does it care about 6 substantive issues? If experts at DEC believe that 7 more extensive sampling should be undertaken to 8 investigate the leak, is the Board going to request 9 one?
10 With regard to drinking water, three to 11 fourteen times drinking water standard is not an 12 acceptable level in groundwater. New York State 13 regulations state that potable water is the best use 14 of groundwater and should therefore not be impaired by 15 discharges of waste. Again, when we raised this 16 issue, Entergy dismissed this on a technicality that 17 we did not raise it earlier in our original contention 18 rather than address the substantive issue itself. We 19 pointed out that although no one is currently using 20 contaminated groundwater under the plant as a drinking 21 water supply, the towns of Highland, Esopus, 22 Poughkeepsie take their drinking water directly from 23 the Hudson River. There's a backup drinking water 24 supply for New York City in New Hamburg along the 25 Hudson River and that United Water in Rockland County NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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657 1 plans to build a 10 to 15 million gallon per day 2 desalinization facility directly across the river from 3 Indian Point. We believe that this information should 4 be considered when assessing the potential impacts of 5 contamination from leaks.
6 Given the time, I'm going to just say that 7 with regard to the leaks, the health effects and 8 environmental justice, we plan to do a site-specific, 9 an area-specific angler survey this summer and I'm 10 going to skip health effects, environmental justice 11 and replacement energy because my time is short.
12 But in closing, we were very surprised to 13 see how closely the staff of NRC's comments on 14 Clearwater's Intervenor Petition and Request for 15 Hearing paralleled Entergy's, although we do 16 appreciate their support for our standing in this 17 case. What we've experienced to date is a narrowly 18 focused system of highly restrictive rules and 19 precedence that are being used not to expedite the 20 process, but to make it nearly impossible to raise 21 legitimate concerns.
22 The relicensing process ignores factors 23 such as the massive population growth that has 24 occurred around the plant since it was first licensed 25 and the resultant impossibility of a viable evacuation NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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658 1 plan, claims that the leaks are being handled 2 adequately by Entergy's ongoing investigation of leaks 3 and their proposed natural attenuation non-remedy and 4 that there is no mechanism provided for an independent 5 safety assessment.
6 Given these barriers to an effective 7 inquiry to the safety and the true risks and benefits 8 of relicensing, it seems that allowing constructive 9 questioning and well researched and documented 10 evidence from a variety of sources can only help the 11 Board to do their job more effectively. Thank you.
12 CHAIRMAN McDADE: Okay. Thank you. Does 13 the staff wish to respond at this time?
14 MR. TURK: I would just make one comment 15 in response, Your Honor. I can't speak to how Entergy 16 developed its responses to petitions. I know that the 17 staff developed its response entirely independently.
18 We did so based on our understanding of applicable and 19 Commission precedent and with full awareness of other 20 processes whereby petitioners or public citizens can 21 raise concerns with the NRC. And we believe that our 22 responses are fully consistent with law and is totally 23 independent of Entergy.
24 CHAIRMAN McDADE: And let me note there 25 would be no reason to suspect otherwise just as a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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659 1 number of the intervenors here have come up with very 2 similar contentions based on their reading of the 3 license application. For example, Clearwater 4 Contention 1 is very similar to New York 28 is very 5 similar to Riverkeeper 3.
6 It's not surprising that reading a 7 contention that the staff is going to be looking at 8 the same case law, the same regulations, as Entergy 9 and that there are going to be common bonds between 10 them. So I certainly recognize that there are similar 11 responses. Quite frankly, it would be surprising if 12 they weren't similar under the circumstances and at 13 least in many respects.
14 With regard to Clearwater 1 which is again 15 similar to New York 28, it has to do with the failure 16 of the environmental report to adequately assess the 17 impacts of known and unknown leaks. That's the nature 18 of the allegation.
19 We have had a number of discussions here 20 over the past few days with regard to category 1 21 situations. We start with the premise that leaks 22 would ordinarily be handled under category 1. I don't 23 think we need to replow all that ground again. The 24 question is what it is specifically about the facts in 25 this case that would bring this case outside of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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660 1 Generic Environmental Impact Statement outside of 2 category 1.
3 There are references to the evidence that 4 Clearwater has presented and let me initially pose a 5 question to the staff and then a similar question to 6 Entergy. You have challenged the adequacy of the 7 supporting evidence, that the form of the supporting 8 evidence presented by Clearwater in this instance does 9 not fit within the regulations of the NRC. If we were 10 to agree with you, would they be able to as they 11 attempted to adopt the facts presented by Riverkeeper 12 and New York on a very similar contention? In other 13 words, do they need to supply the same declaration, 14 the same affidavits, or can they make them 15 incorporated by reference into their application? Is 16 there any guidance in the regulations of the case law 17 with regard to that?
18 MR. TURK: Our answer, Your Honor, would 19 -- I believe the question you're asking gets to what 20 is needed to incorporate contentions or to adopt 21 contentions filed by other petitioners and our 22 response would be they have an obligation to file an 23 admissible contention on their own if they are 24 admitted as a party or if they have an agreement with 25 another petitioners whereby they can adopt and follow NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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661 1 the requirements in 10 CFR 2.309. Then they would be 2 able to adopt the contention or portions of a 3 contention filed by another petitioner.
4 CHAIRMAN McDADE: Well, sort of moving 5 down the spectrum, we have three organizations, each 6 of which files a similar contention, each of which 7 submits adequate declarations in support. Under those 8 circumstances it would be incumbent upon the Board to 9 admit each of those contentions and then perhaps 10 consolidate them thereafter. Likewise, it would be 11 possible for a party having filed an admissible 12 contention to adopt contention 2 of another party.
13 What I'm posing is sort of the next step 14 which is in order to submit an admissible contention 15 can you incorporate by reference the supporting 16 documentation submitted by another party? In other 17 words, if it is in the record based on what has been 18 submitted by New York, what has been submitted by 19 Riverkeeper, can Clearwater rely on those expert 20 opinions, those factual representations, in order to 21 support the viability of their contention? So in 22 other words, at this point, we're not talking about 23 adopting a contention. I'm just talking about 24 adopting and incorporating the supporting evidence.
25 MR. TURK: I'm not familiar enough with NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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662 1 this contention to know if they've actually made that 2 assertion here. So I'll address it in a hypothetical 3 sense.
4 If they were aware of what another 5 petitioner has filed and they seek to adopt part of 6 the declarations or evidence submitted by another 7 petitioner. I would think that they should be allowed 8 to do that. I don't know why they could not be 9 allowed to as long as they are clear in their 10 statement of what it is, what are the bases they 11 intend to rely upon just as they could cite a study 12 that is not even submitted by another petitioner, but 13 they could cite to some document and say we rely on 14 that document and that would essentially be, I think, 15 what you're asking about. Could they rely on a 16 document filed by another petitioner and I would think 17 they should be allowed to as long as they are clear in 18 identifying what it is that they seek to rely on.
19 CHAIRMAN McDADE: Now in this particular 20 instance, assume for the sake of argument that one 21 views that they have not done that clearly. In other 22 words, they've indicated that they wish to adopt the 23 contention, but have not said expressly in hoc verba 24 we wish to adopt the declaration of Dr. X or we wish 25 to adopt study Y that was submitted. They've simply NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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663 1 said we wish to adopt New York 28 and/or Riverkeeper 2 3. If we were to find that these contentions were 3 essentially identical and there was adequate support 4 in the record for New York 28, would we be able to 5 admit Clearwater 1 based on they're just simply saying 6 we wish to adopt the contention? Would that be enough 7 or would that be insufficient?
8 MR. TURK: That would be insufficient 9 because then what they would have to do is satisfy the 10 2.309 requirements for showing that the adoption has 11 been agreed to by the other party, that there's an 12 agreement as to who would have the lead, what are the 13 consequences of that. So they have to follow the 14 regulation.
15 What you're asking now is could they 16 simply adopt another petitioner's contention rather 17 than rely upon studies or evidence submitted in 18 support of other petitions.
19 CHAIRMAN McDADE: Well, I'm saying -- We 20 can both read the language that they've used in 21 adopting the contention. Assume for the sake of 22 argument that members of the Board thought that there 23 was some validity to the staff argument that the 24 nature of the support submitted, the adequacy of the 25 supporting evidence, in this particular contention was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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664 1 weak and that there was some question as to whether or 2 not it met the Section 309 threshold, would we be able 3 to look to evidence submitted by other parties and 4 then use the arguments that this intervenor has made 5 based on that information?
6 In other words, somebody else submits 7 evidence with regard to leaks. They're making 8 arguments with regard to those leaks without 9 necessarily putting specific evidence in the form 10 suggested under 309 into the record. Other parties 11 have put that into the record or to the degree that we 12 have a record per se at this point of the proceeding.
13 They make an argument from it. Is that sufficient or 14 insufficient? Is there any either case law or 15 anything in the regulatory or in the regulatory 16 history that you can point us to on this?
17 MR. TURK: The answer is, Your Honor, that 18 would not be enough. They need to submit on their own 19 an admissible contention. Whatever the bases are that 20 they allege and support, that contention within its 21 own boundaries including whatever support they cite 22 and, as I mentioned, I would not object if they cited 23 to some other evidence that some other intervenor 24 presented and say they would like to rely on that as 25 well, that study that somebody else proffered to you.
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665 1 As long as it was clear what are the bases for the 2 contention, you would then look to see do they make an 3 admissible contention as required by 10 CFR 2.309.
4 But you could not simply say someone else 5 has an admissible contention on the same subject.
6 Therefore, we'll admit this one which otherwise we 7 would have found to be inadmissible. It has to stand 8 on its own as an admissible contention.
9 CHAIRMAN McDADE: Okay. Does Entergy have 10 anything further to add on that?
11 MR. BESSETTE: Your Honor, we concur with 12 the NRC staff. We would like to note with regard to 13 issue on adoption. I believe we covered this pretty 14 well with regard to Westchester.
15 Should Clearwater be admitted to this 16 proceeding, we believe they as a party on an 17 admissible contention. We do not challenge their 18 ability to adopt another party's contention. However, 19 we believe the decision in Con Ed is entirely 20 applicable here because adoption existed before 2004 21 and it existed afterward.
22 The only clarification the Commission at 23 2004 is in regard to who takes a lead party. So to 24 say that the 2004 change to Part 2 allowed them to 25 leapfrog basically the contention admissibility NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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666 1 standards that have governed these proceedings for 2 many, many years and which support that they pursuant 3 to 2.309(f) have to propose their own admissible 4 contention with specificity it would just read out the 5 contention pleadings, contention requirements, 6 entirely.
7 With regard to the question you asked, 8 could they refer to a particular reference in another 9 example, another petition, we don't necessarily agree 10 they can. I mean, I could point to another party and 11 say that's my expert, too. We don't think that's 12 enough. They have to require -- must set forth with 13 particularity the contentions sought to be raised and 14 for each contention they have to provide the requested 15 information. We don't think it's simply enough just 16 to point to somebody else. We believe again that 17 would be bootstrapping them, their way into a 18 proceeding, by violating the contention admissibility 19 standards.
20 CHAIRMAN McDADE: Well, the question 21 clearly would be bootstrapping their way into the 22 proceeding and the question is whether or not it would 23 be doing so in violation of the contention 24 admissibility standards. That's all we're trying to 25 air out at this particular point in time.
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667 1 MR. BESSETTE: We certainly think it 2 would.
3 CHAIRMAN McDADE: We have made no decision 4 obviously with regard to this one way or the other.
5 We're just trying to explore the possibilities and 6 again we start off with a presumption here that in 7 this particular instance as it was pointed out this is 8 a petition that was drafted pro se and how much leeway 9 is the Board permitted to give under these 10 circumstances.
11 Again, we start off here also that this is 12 arguably pursuant to 51.53, a category 1 issue, and 13 then in order to proceed any further whatsoever with 14 regard to admissibility we would have to find that 15 there are before us facts which make the generic 16 application here inappropriate based on site-specific 17 facts that would be before us and as the staff has 18 pointed out and Entergy has pointed out the form of 19 the facts on which Clearwater seeks to rely in this 20 particular instance are not, before we get to the 21 substance of the facts and the adequacy of the facts 22 at this point, the threshold, the form of the facts 23 are not in the same form as, for example, they were 24 submitted by the State of New York. And one questions 25 and the question here is whether or not given the fact NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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668 1 they've been submitted in a particular form by the 2 State of New York by Riverkeeper whether or not we 3 would be able to incorporate those facts simply based 4 on the representation by Clearwater of their intent to 5 adopt a contention. I'm just looking for any 6 guidance, anything you can point to, in the 7 regulations in the statement of considerations going 8 into the regulations that would inform our decision.
9 MS. SUTTON: In addition to what Mr.
10 Bessette noted, in applying the adoption provision, 11 you can read the meaning out of 2.309(a) and that 12 clearly states that a petitioner must demonstrate its 13 standing "and has proposed" and they use that word in 14 the regulation "at least one admissible contention, 15 does not allow for the adoption." You can have 16 standing and then you adopt. No, you must have 17 standing and you must propose.
18 So we say in this case they cannot simply 19 adopt and meet the standards of 2.309(a). And the 20 2004 rulemaking did not change that language.
21 MR. FILLER: First of all, throughout our 22 petition and specifically with regard to our first 23 contention on page 21 we specifically cite paragraphs 24 within New York Contention 28 and there are various 25 points throughout our petition where we do incorporate NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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669 1 by reference various parts of the petition.
2 As to the more general adoption point 3 under 2.309, I believe that the provision that I cited 4 earlier is governing and does give authority to the 5 Board for us to be admitted without having a 6 contention of our own and getting beyond the -- I 7 think the statutory language is clear.
8 But getting beyond that I think we're not 9 asking to be the lead on this contention. I think the 10 question for the Board is can we be helpful to the 11 Board in its investigation of this contention. If New 12 York State is the lead, they are going to be the lead.
13 They are going to be the attorneys. If they want us 14 to speak or not speak, that's going to be their 15 choice.
16 So it seems to me that it can only be 17 helpful to this Board if Clearwater is a party to 18 that. I think we clearly have things we can bring to 19 the table and add to the discussion.
20 CHAIRMAN McDADE: Thank you.
21 (Off the record discussion.)
22 JUDGE WARDWELL: Clearwater, could you 23 clarify a little for me why you don't believe your 24 particular contention is an attack on the GEIS 25 relating to groundwater issues?
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670 1 MR. FILLER: Could you clarify the 2 question please?
3 JUDGE WARDWELL: Well, GEIS has indicated 4 that all groundwater issues are category 1 issues and 5 shouldn't be addressed because they have been already 6 addressed as a generic issue and considered to be non-7 significant, to be small and of no significance. Why 8 are these so different?
9 MR. FILLER: There are a number of reasons 10 why the situation is unique and I'm going to Ms. Lee 11 speak to that.
12 MS. LEE: GEIS does not envision 13 accidental ongoing leaks. GEIS covers what would be 14 acceptable normal affluent emissions. It's 15 essentially something that people weren't thinking 16 about.
17 Now we know from the NRC task force report 18 that was issued in September 2006 that truly that is 19 not unique in respect to the fact that there are 20 indeed leaks popping out at all these plants all over 21 the country from places nobody thought there would be 22 leaks coming from. So to that extent, yes, there is 23 a generic issue.
24 But the GEIS that exists now was created 25 before anybody was looking at that. It's essentially NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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671 1 a timing issue. If there was a new GEIS or all of 2 that was being looked at in place, that might be a 3 different story. But that's not the conditions that 4 we're operating under.
5 Secondly, Indian Point is the only one 6 that's had strontium leak. The leaks have been 7 continuing for years without being identified. It was 8 essentially not identified under any kind of normal 9 aging management or ordinary management process. It 10 was identified accidentally by a contractor who wasn't 11 affiliated with either Entergy or the NRC who just 12 basically sort of stepped into it and, gee, what do 13 you know? There's radioactivity here. So even under 14 aging management also, it has not been looked at.
15 But the ultimate obligation, I would 16 propose this as a broader issue, yes, you have all 17 these guidances and letters. Above that, you have the 18 regulations. Above that is the paramount and 19 presiding mission of the NRC which is to protect the 20 public health and safety and unless you essentially 21 determine that form must be elevated over substance 22 and that ultimate mission can be subverted to 23 technicalities then the reality that you have 24 radiation leaking into the Hudson River which may very 25 well leaking again from different sources has to be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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672 1 addressed.
2 And I would also point out that the NRC 3 regulations as well as the EPA regulations are by own 4 admission 30 years out of date, 30 years. Three 5 decades of science are being ignored by the current 6 regulations.
7 They do not take into consideration the 8 last study over 700 pages of the National Academy of 9 Sciences PR 7 report. They do not take into 10 consideration all the findings of the European 11 Commission on Radiation Risk. Ignored because they 12 have not been updated.
13 So to say, and that ties into the GZA 14 report which I think is an exceptionally good report 15 in that GZA clearly did a comprehensive and detailed 16 analysis of where the water was going and how it was, 17 what it was coming out of and they did chemical tests 18 and all sorts, one test which I think that you can 19 probably rely and I don't think anybody disputes that 20 their ultimate findings are accurate.
21 However, they did make a finding that was 22 completely outside their area of expertise and is not 23 based on science and that is that the radiation 24 emissions and effluence that are leaking have no 25 public health or environmental consequences and that's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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673 1 simply not substantiated by the science. That is a 2 factual dispute that we and New York and the other 3 parties on this side of the aisle are contending.
4 CHAIRMAN McDADE: Okay. I'm not sure you 5 understood Judge Wardwell's question in the same way 6 that I understood Judge Wardwell's question. One has 7 to do with an attack on the regulation itself. In 8 other words, the regulation is inadequate, that this 9 particular regulation makes reference for license 10 renewal to the Generic Environmental Impact Statement.
11 Whether that regulation is adequate or not, the staff 12 and Entergy allege are outside the scope of this 13 proceeding.
14 If you believe that the regulation was 15 inadequate the place that that would be challenged 16 initially is by filing a petition under 2.802, not in 17 the context of this proceeding by filing a contention 18 under 2.309. What could be within the scope of the 19 proceeding is not direct challenge on the regulation 20 itself but rather saying that there are facts that are 21 site specific to this particular facility that bring 22 it outside the scope of the Generic Environmental 23 Impact Statement regulation.
24 That is based on the understanding of the 25 NRC from all of the experience with all of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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674 1 reactors which they believe common threads are drawn 2 from and they can draw general conclusions both for 3 efficiency and also for consistency purposes.
4 So what we're looking for is not any 5 problem that you have with the adequacy of the 6 regulation itself, rather what unique facts. What is 7 unique about Indian Point that would not be applicable 8 in the other nuclear reactors across the United States 9 makes that the use of the Generic Environmental Impact 10 Statement inadequate that requires a supplement to 11 that which has not been done. That's what we're 12 asking you to address.
13 MS. LEE: If my understanding is correct, 14 I don't think the GEIS even deals with these kinds of 15 leaks. It's not barred by the GEIS because it's not 16 envisioned by the GEIS.
17 CHAIRMAN McDADE: And what you're saying 18 is leaks out of, for example, the spent fuel pool are 19 not in the normal operation of the facility and 20 therefore are not anticipated by the regulation.
21 MS. LEE: I would hope not. That would be 22 -- I would sincerely hope that that would not be part 23 of the regulating operating procedure of the plant.
24 CHAIRMAN McDADE: Your hopes aside, that's 25 your allegation.
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675 1 MS. LEE: Yes.
2 CHAIRMAN McDADE: Okay.
3 JUDGE WARDWELL: What's the basis for 4 stating that the ER doesn't adequately address the 5 impacts when, in fact, there are quite a bit of amount 6 of data relating the amount of impacts associated with 7 the inadvertent releases of radioactivity to the 8 groundwater as you allege to in the various reports 9 that Entergy has submitted. So where is the ER?
10 MS. LEE: The GZA just came out and New 11 York by its own admission hadn't even really started 12 doing much broad based examination of the 13 contamination of fish and wildlife, plants and all 14 that type of thing. They're really just starting to 15 do it now. Clearwater will be doing more over the 16 summer.
17 Because nobody really knew about the leaks 18 really, there hadn't been much focus on looking for 19 where there might be contamination for the leaks. The 20 leaks were first discovered in 2005 and that was just 21 the strontium leak. And then later other leaks were 22 ascertained.
23 But GZA just came out with its report in 24 January 2008. And New York, you haven't had the 25 wildlife cycle for doing this study that New York has NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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676 1 said it will do, the DC has promised to do, which it 2 started promising to do last summer. You can't 3 ascertain that kind of contamination absorption 4 without doing the tests.
5 So there's really no way to know and the 6 reality is with radiation it's unlike most other 7 toxins. It's cumulative and it builds up. I don't 8 know if anybody remembers the movie, "Arsenic and 9 Lace," the wife being murdered by drops of arsenic and 10 it was so clever because it was in her tea. But 11 that's essentially what's going on here. It's like a 12 little drop of strontium, tritium and cesium and so 13 forth.
14 So it's a cumulative issue and you do have 15 the reality that people who are drinking from the 16 Hudson will be drinking more from the Hudson in the 17 future and that should be looked at.
18 JUDGE WARDWELL: Are you alleging that 19 there is no groundwater data in the ER as it stands 20 now exclusive of the GZA report?
21 MR. FILLER: I think the issue is the 22 adequacy of the environmental report and the issue was 23 addressed. The question is to what extent it needs to 24 be looked at in groundwater, in fish, in other areas.
25 JUDGE WARDWELL: And is that reflected in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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677 1 your statement, for instance, in the regards to the 2 bioaccumulation? Is that one of the areas that you're 3 alleging is the inadequacy of the addressing of the 4 impact?
5 MS. LEE: Yes. No, it doesn't address 6 that at all.
7 JUDGE WARDWELL: And do you know whether 8 or not the GZA report has addressed bioaccumulation?
9 MS. LEE: No, as far as my knowledge. No.
10 JUDGE WARDWELL: Turning to the staff, as 11 far as you know in your review to date, have you 12 encountered any information relating to the 13 bioaccumulation of the radioactivity in either the ER 14 or in the GZA report or both?
15 MS. MIZUNO: Your Honor, if you could give 16 us a moment. Thank you.
17 (Off the record discussion.)
18 JUDGE WARDWELL: And if you haven't 19 encountered it yet, that's fine. If you haven't read 20 it, that's an acceptable answer.
21 MR. TURK: Your Honor, we are informed 22 that every year Entergy performs bioassay sampling in 23 which they do take samples of the biota of living 24 matter and organisms around the plant. And they send 25 in those annual reports to the NRC. We can't tell you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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678 1 at this moment whether the ER addresses all of that 2 data. I have no reason to suspect that they would 3 have omitted relevant data and I don't hear from the 4 Petitioner that such an omission has occurred.
5 JUDGE WARDWELL: And well, I've heard from 6 the Petitioners that it has been omitted, that they 7 couldn't find it anywhere and it's not a matter of 8 just the data either, it's the assessment of the data.
9 What does that mean in regards to potential for bio-10 accumulation over the license renewal period?
11 MR. TURK: I would listen to Entergy's 12 answer, your Honor, because we are not intimately 13 familiar with the ER as we sit here. Perhaps they 14 know the document better.
15 JUDGE WARDWELL: That's fine. No, and I 16 heard this morning they testified -- they argued that 17 fact it has been and I just wanted to see whether 18 other people agreed or disagreed with that statement.
19 Back to Clearwater, I believe there was a statement by 20 either Entergy or staff that your allegation of 21 groundwater being in the bedrock fractures was 22 speculative. Would you like to comment on that, on 23 whether that was correct or was I off base in my notes 24 that I've got here and did I dream this that made me 25 write my notes down? Have you made an allegation in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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679 1 your petition for this contention that there is reason 2 to believe that the contamination has gone into the 3 bedrock?
4 MS. LEE: I'm sorry, the GZA report finds 5 that it traveled into bedrock. I'm confused. The 6 bedrock is fractured from geological reasons, Ice Age, 7 so forth, and also from the initial construction of 8 the facility. So, in fact, the GZA report is all 9 about, like all the little fractures in the bedrock, 10 so you know, so it's there. It's not really 11 speculative. It's --
12 JUDGE WARDWELL: So why isn't it 13 speculative as the NRC, as I now look at my notes has 14 alleged in responding to your petition?
15 MS. LEE: They've alleged it's 16 speculative?
17 JUDGE WARDWELL: They alleged in their 18 answer to your petition that your allegations that 19 ground fractures are containing the contamination is 20 speculative. How would you react to that?
21 MS. LEE: Was that predated the GZE 22 report?
23 JUDGE WARDWELL: Yes, because it would 24 have been based on the ER.
25 MS. LEE: That's why, because at that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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680 1 point it was speculative. Now it's not.
2 JUDGE WARDWELL: So prior to the GZA --
3 but it was in your petition, so where did you come up 4 with that for your petition, because you petition pre-5 dated the GZA report also?
6 MR. FILLER: I think it had to do with the 7 elevation in the fish. It's too -- it can't be 8 explained by any other reason other than there's some 9 other -- some other source and that source, presumably 10 would have been Indian Point because there's no other 11 source of strontium 90. So if the elevation level on 12 the fish is higher than can be explained by what's 13 there, then presumably there's some other thing that 14 needs to be looked into.
15 JUDGE WARDWELL: May I be so bold as to --
16 go ahead.
17 MR. FILLER: Well, you can say that's 18 speculative, but if it is also -- there's a huge 19 question that's asked by that. So yes, I mean, it's 20 speculative, but it's the best -- I mean, you know, 21 when you're considering circumstances, you say what's 22 the most likely answer? And that's the most likely 23 answer, that it had to come from the plant. So it's 24 incumbent upon Entergy to explain it otherwise.
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681 1 clarify why you believe that their statement about the 2 potential for groundwater fractures containing 3 contamination is speculative?
4 MS. MIZUNO: The -- oh, I see what you're 5 talking about. In our response we wrote, 6 "Clearwater's reliance on a statement that groundwater 7 fractions could contain contaminated water is on its 8 face speculative"?
9 JUDGE WARDWELL: Yes.
10 MS. MIZUNO: Is that what -- the wording 11 of the statement itself, the statement was, 12 "Groundwater fractures under Indian Point could 13 contain", it didn't say "do contain". The state on 14 its face was speculative and that's what we were 15 pointing out.
16 JUDGE WARDWELL: Thank you.
17 MS. MIZUNO: You're welcome.
18 MS. GREENE: And if I may, it is now -- it 19 has been determined that the groundwater does contain 20 high levels of radioactivity. What we were relying on 21 was Sergio Smiriglio's very clear presentation in 22 which he postulated that given the known configuration 23 of bedrock under the plan, that it was likely that 24 there were secondary plumes and until somebody does 25 that specific assessment, surely Clearwater doesn't NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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682 1 have the resources to do that. But with unexplained 2 levels in the fish and in the river, that do not 3 appear to be coming directly from the areas that are 4 monitored in the plant, it seemed to us to be a 5 logical conclusion that this was a -- that there was 6 a possible secondary source that might be ongoing and 7 we need to, as a society, we need to understand how 8 groundwater contamination moves through the eco-system 9 and so we think it's a fair question to raise.
10 JUDGE WARDWELL: Thank you. Yes, Entergy, 11 do you have a comment?
12 MR. BESSETTE: Yes, your Honor, I just 13 wanted to clarify a couple things with regard to the 14 bio-accumulation. It was included in the original ER 15 as the NRC is correct. We actually submitted a semi-16 annual effluent dose report to the NRC and the 17 original dose --
18 JUDGE WARDWELL: Did you test for the 19 potential for that bio-accumulation or did you just 20 report bioassay data?
21 MR. BESSETTE: Bioassay data. I'm sorry.
22 They include bio-accumulation as part of the 23 calculation.
24 JUDGE WARDWELL: Thank you.
25 MR. BESSETTE: And that data was included NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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683 1 in the original ER and in the GZA report that we're 2 discussing, it includes updated data from those same 3 types of reports. Also with regard to strontium, I'd 4 like to point out that Clearwater relies on the 5 statements of Barbara Youngberg and a full reading of 6 her statement actually says with regard to strontium, 7 "The source of contamination has not yet been 8 established. Same concentrations cannot be directly 9 attributed to Indian Point and strontium is due to 10 nuclear weapons testing". So Clearwater's own person 11 who they quote does not attribute the source of the 12 strontium directly to Indian Point. So it's just not 13 consistent -- their pleadings are not consistent with 14 their own testimony and we --
15 JUDGE WARDWELL: Argument.
16 MR. BESSETTE: Argument, I'm sorry, and we 17 do not agree that there are any unexplained levels of 18 radioactivity in the river.
19 JUDGE WARDWELL: Thank you. Clearwater, 20 would you like to respond to that?
21 MS. GREENE: Our answer is that a well-22 formulated question has been raised as to the source 23 of strontium 90 and it is known that strontium 90 is 24 leaking from the facility and Entergy hasn't provided 25 -- or no one has provided a -- another plausible NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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684 1 explanation.
2 JUDGE WARDWELL: Thank you.
3 CHAIRMAN McDADE: And that takes it 4 outside. That wasn't considered as part of the 5 generic Environmental Impact Statement.
6 MS. GREENE: It was not considered.
7 CHAIRMAN McDADE: Yes.
8 MS. GREENE: That's right.
9 CHAIRMAN McDADE: So that's what you're 10 saying is that because it was not considered, this 11 brings it outside the scope of the generic 12 Environmental Impact Statement and --
13 MS. GREENE: Yes.
14 CHAIRMAN McDADE: -- means that you are 15 not directly attacking the regulation. What you're 16 doing is saying the regulation is not applicable based 17 on this factual circumstance. Okay.
18 MR. BESSETTE: Your Honor, we would just 19 like to reiterate that strontium -- the only source of 20 strontium which has not been challenged is Unit 1.
21 Unit 1 spent fuel pool is not within the scope of 22 license renewal and it will be emptied and drained 23 this year and has no nexus to the license renewal 24 application. Thank you.
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685 1 Contention 2 is very similar, the Environmental Report 2 fails to consider higher than average cancer rates and 3 other health impacts in counties surrounding Indian 4 Point. Again, the response of the NRC staff and the 5 response of Entergy is initially that this constitutes 6 a Category 1 issue. The health impacts that it's 7 taken care of generically. The NRC has looked at the 8 health impacts surrounding all nuclear plants and 9 drawn its conclusions based on that.
10 So the question is, are there any unique 11 facts, facts unique to Indian Point not consistent 12 with the facts that would be available and generated 13 from other nuclear plants that bring it outside the 14 regulation. You've submitted a declaration of Joseph 15 Mangano in this regard. What is it that Dr. Mangano 16 or Mr. Mangano says that is -- indicates that Indian 17 Point is unique?
18 MS. GREENE: I think that in several 19 cases, Mr. Mangano indicates that the elevated cancer 20 levels and other health effects are specific to Indian 21 Point. He also talks about the fact that they are 22 present in nuclear power plants that have been studied 23 around the country but the zip code analysis that he 24 did was specific to Indian Point so that is -- you 25 know, again, that doesn't appear to be covered under NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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686 1 a generic report.
2 CHAIRMAN McDADE: Okay, but how do we know 3 that his results are -- the results that he offers are 4 any different than results that you would find at any 5 other nuclear plant?
6 MR. FILLER: Well, I think that's the 7 question that needs to be answered because I mean, 8 he's finding something that appears to be different 9 here. So the question is why. There's also --
10 CHAIRMAN McDADE: Well, how is he finding 11 something that's different. He's -- I mean, if you 12 credit what he's saying, he's saying, "This is what 13 I've found at Indian Point. How does he tie that to 14 the conditions existing at any other nuclear facility?
15 The whole idea of a generic Environmental Impact 16 Statement is that the agency has started out with a 17 presumption that there are certain things that can be 18 treated generically, that you would reasonably expect 19 them to be the same at all nuclear plants. So we look 20 at all nuclear plants and for efficiency and 21 consistency, instead of having that aspect of the 22 Environmental Report and Environmental Impact 23 Statement done uniquely for each site, what we will do 24 is handle it generically through the Generic Impact 25 Statement. It's not that it isn't being considered, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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687 1 it's just it's being considered in a particular way.
2 So the question is what do we have before us right now 3 that would lead us to believe that the health 4 conditions around Indian Point as a result of Indian 5 Point, are any different than they are at any other 6 nuclear plant, that they are unique, that they are 7 outside what was contemplated by the Generic 8 Environmental Impact Statement.
9 MR. FILLER: Well, one thing we certainly 10 know is that the population around Indian Point is 11 much, much higher and is unique. So any impacts are 12 likely to be that proportionately greater. There's 13 300,000 people within 10 miles of the plant and nearly 14 a million within 20 miles. So those are unique 15 factors and that's essentially, you know, this plant 16 in the New York Metropolitan Area is really 17 categorically different from every other plant.
18 CHAIRMAN McDADE: Okay, let me -- okay, 19 with regard to environmental -- with Clearwater 20 Contention 3 which has to do that the Environmental 21 Report is flawed because its environmental justice 22 analysis does not adequately assess the impacts of 23 Indian Point on the minority, low income and disabled 24 persons in the area surrounding Indian Point.
25 Let me ask first of all to Entergy, it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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688 1 seems that the first line of defense that Energy has 2 is that this is a generic issue and my question is, it 3 seems like environmental justice would be the least 4 generic issue. It would be something that is going to 5 be unique to every individual site. So how is this 6 treated appropriately generically?
7 MR. BESSETTE: Your Honor, we don't 8 believe it is treated generically. We believe the 9 regulations require you to address it on a plant 10 specific basis.
11 CHAIRMAN McDADE: Okay.
12 MR. BESSETTE: And I could refer you to 13 Footnote 6 in Part 51, Subpart A, Appendix B, and in 14 particular it says, "Environmental justice was not 15 addressed in NUREG 1437 which is the GEIS, because 16 guidance for implementing Executive Order 12898 issued 17 on February 11th, 1994 was not available prior to 18 completion of NUREG 1437. This issue will be 19 addressed in individual license renewal reviews". And 20 we have done that.
21 JUDGE WARDWELL: Have you included the 22 consideration of the prisoners within your 23 environmental justice populations?
24 MR. BESSETTE: No, your Honor, 25 environmental justice refers to minorities and low NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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689 1 income people. Prisoners, by themselves as a 2 classification are not included in any environmental 3 justice reviews, per se.
4 JUDGE WARDWELL: But your two parts to 5 that -- your first part and your second part don't 6 seem to link. Isn't it -- do you have any data to 7 show that, in fact, prisoners don't have a high 8 percentage of minority and low income people?
9 MR. BESSETTE: Your Honor, our data on 10 demography is included, I believe in Section 2.6 of 11 the ER. It's fully evaluated there. It's based on 12 all census data within a -- they break it down by four 13 states in a -- I believe, a four-state area. We could 14 point that out to you. We assume that it's all based 15 on publicly available US current census data and we 16 would assume that that census data takes into account 17 prison populations.
18 But I can't because I don't have access to 19 that specific data, we believe it would address that 20 issue.
21 JUDGE WARDWELL: Thank you.
22 MR. FILLER: May I? This is elaborated 23 fairly extensively in our petition but the question 24 isn't so much the prison population, per se, but the 25 composition of the prison population which is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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690 1 dramatically indigent and minorities. And there are 2 -- there are approximately or at least 26 prison 3 facilities within the 50-mile zone and Sing Sing is 4 within seven miles of the zone and it's an attachment 5 to our papers, but Sing Sing is, I think, 760 6 prisoners as of November 3rd, and it was something 7 like 50 -- it was 56 percent African American and 29 8 percent Hispanic.
9 And so I mean, so the numbers are really 10 overwhelming. There's one thing as far as minority 11 and indigent populations among the prison population.
12 The other thing, there was -- in Entergy's response 13 --
14 JUDGE WARDWELL: Can I interrupt you 15 quickly --
16 MR. FILLER: Sure.
17 JUDGE WARDWELL: -- just so we don't lose 18 this thought? As I heard Entergy just say, they have 19 no reason to believe that the census data they used 20 didn't consider that. Do you have any reason to 21 believe that the consensus data would not actually 22 reflect just what you said when they're coming up with 23 the population of minorities and low income in a given 24 area?
25 MR. FILLER: I don't know whether the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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691 1 census data includes the prison population within the 2 area. It may or may not. I don't think that's so 3 much the issue as whether you look at a very -- the 4 impact on a very specific group. It depends on the 5 scale of what you're looking at.
6 If you look at the entire region, then I 7 don't think you're -- it's going to make that much of 8 a difference, but if you have a prison population or 9 a hospital population within the evacuation zone that 10 are going to be impacted differently from the rest of 11 the population, which I think clearly they will, then 12 you need to look at that population. So --
13 JUDGE WARDWELL: What in the environmental 14 justice procedures require you to look at hospitals' 15 populations?
16 MR. FILLER: Well, I think it's -- I think 17 with regard to prison populations and hospital 18 populations, any kind of evacuation is going to be 19 extremely problematic. And a hospital population, by 20 definition, is going -- is disabled, maybe not in the 21 strictly legal sense, but at the moment, they're going 22 to be --
23 JUDGE WARDWELL: But aren't you raising 24 another issue when you're raising the evacuation? Is 25 that an environmental justice issue?
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692 1 MR. FILLER: Yes, absolutely. And you 2 know, Entergy and I'm not sure about the NRC. I mean, 3 their response is that the evacuation procedures don't 4 need to be considered here, but the environmental 5 justice impacts do and the environmental impacts are 6 not -- the environmental justice impacts have never 7 been looked at before in any other context. And if 8 there is -- a need to do an evacuation at the plant or 9 even a perceived need, then there's going to be a huge 10 disparate impact upon the prison and the hospital 11 populations.
12 And so I wanted to address a point about 13 the hospital populations, which in Entergy's answer, 14 they make that statement that a disabled population is 15 not -- should not be considered for environmental 16 justice considerations. I believe they make that 17 argument and I think -- and I'm not aware of any case 18 law that says that it is. But I would argue that 19 within the meaning of environmental justice and due 20 process in any sense of -- and looking at the 21 Americans with Disabilities Act, which you know, 22 clearly effects some -- that population, that to say 23 that that -- that because it's never been considered 24 before in environmental justice situation that the 25 Board shouldn't consider it, I think, is -- you know, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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693 1 doesn't make sense. It needs -- if there is a 2 disparate impact on a disabled population, it's 3 incumbent upon the Board and society to take that into 4 account.
5 CHAIRMAN McDADE: So let me pose a 6 question to the NRC staff and then to Entergy and see 7 how these things mesh. We start with the premise that 8 with regard to environmental justice, it's not enough 9 to simply to identify that there is an environmental 10 justice population within the environment. You have 11 to demonstrate that the -- not only is the population 12 present but the impacts on that population are 13 different, significantly different, from the 14 population generally.
15 We now start with an additional premise 16 that says ordinarily the evacuation plan is going to 17 be part of the current licensing basis. It's going to 18 be outside the scope of a license renewal situation.
19 However, the way it's presented by Clearwater is 20 somewhat different. It's saying, "We're not concerned 21 with the evacuation plan. What we're concerned with 22 -- and therefore, we're not challenging the evacuation 23 plan. What we're saying is that you have an 24 environmental justice issue because you have a segment 25 of the population, an environmental justice NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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694 1 population, who can't be evacuated. Therefore, the 2 impact upon them is significantly different from the 3 impact on the general population". So it's sort of 4 coming at two issues that are outside the scope of the 5 proceeding, welding them together and saying that 6 together, they are within the scope of it.
7 Doesn't the fact that you have a 8 population that cannot be evacuated, an environmental 9 justice population that can't be evacuated raise 10 concerns that should have been addressed in the 11 Environmental Report and then in the Environmental 12 Impact Statement, not that it's going to be 13 dispositive one way or the other as to whether or not 14 the license should continue, but it's something that 15 should have been considered in the Environmental 16 Report and then in the Environmental Impact Statement?
17 From the staff's standpoint, what's -- how do you 18 disagree with that argument? Offer the contrary.
19 MR. CHANDLER: Well, your Honor, if I 20 understand your question correctly, I think what 21 you're asking is why shouldn't the emergency -- why 22 should not -- why shouldn't environmental justice 23 principles be applied to emergency planning?
24 CHAIRMAN McDADE: Just simply that again, 25 why shouldn't there be an environmental justice NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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695 1 evaluation? Now, we're not talking about an 2 evacuation plan. Let's start with the premise. This 3 is a population that is not going to be evacuated, 4 period. This is a population that is not going to be 5 evacuated. Therefore, does the continuation of the 6 plant have a disproportional adverse impact on them 7 for that reason alone? And if it's an environmental 8 justice population, doesn't that again, not be 9 dispositive again. NEPA is just take a hard look and 10 the Environmental Report informs your analysis under 11 NEPA.
12 MR. CHANDLER: Well, I think, your Honor, 13 that the -- that the question of whether an 14 environmental justice population will or will not be 15 evacuated is by definition an emergency planning 16 question and is not within the scope of the 17 environmental impacts or the disproportionate impacts 18 that are supposed to be considered until environmental 19 justice principles.
20 CHAIRMAN McDADE: Yeah, but nobody -- at 21 least as part of this contention, nobody is saying 22 that the environmental plan is inadequate in any way.
23 We're not attacking the Environmental Plan, Evacuation 24 Plan. Take this as a given that the Evacuation Plan, 25 as it is, is adequate. And again, I mean, this is --
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696 1 at least as I see it, a somewhat unique argument that 2 really hasn't been addressed and I'm just trying to 3 think through it and get you all to help me think 4 through it. And just, is there anything else that you 5 can offer to me at this point in time that would help 6 me sort of think through this argument? Again, not an 7 attack on the evacuation plan, not saying the 8 evacuation plan should be changed at all, but just the 9 fact, given the circumstances that there would be a 10 disproportionate impact on an environmental justice 11 population at the various prisons within the 12 environments of the end point facility and again, not 13 that it's going to be dispositive but just that it 14 could be considered in the environmental justice 15 aspect of the Environmental Impact Statement.
16 MR. TURK: May we have just one moment, 17 your Honor?
18 CHAIRMAN McDADE: Okay.
19 (Pause) 20 MR. BESSETTE: Your Honor, would you like 21 me to address it, now?
22 MR. CHANDLER: I think we're ready to --
23 CHAIRMAN McDADE: Okay, let's do the staff 24 first and then --
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697 1 we would start by saying that we don't know that the 2 emergency planning or excuse me, we don't know that 3 hospital and prison populations can't be evacuated.
4 So we don't know whether that is, in fact, an issue 5 and to the extent that it might be an issue, that 6 issue would be, again, outside the scope of license 7 renewal. But we think that trying to take -- I guess 8 the premise that you've posited is sort of expanding 9 the scope of environmental justice beyond what it was 10 intended to cover which is specifically environmental 11 impacts to minority and low income populations and to 12 try to apply those principles to issues that don't 13 include environmental impacts would be to -- I think 14 it would be to unnecessarily or improperly expand the 15 environmental justice policy.
16 CHAIRMAN McDADE: Okay, thank you.
17 MR. BESSETTE: Yes, your Honor, we'd like 18 to go back to the question with regard to the initial 19 issues you consider in environmental justice. You are 20 correct, you have to determine if there's an initial 21 minority or low income population in the area.
22 Secondly and as determined in a Dominion 23 case which I could cite and recently in the Vogel 24 early cite from that case, the next step and the 25 necessary predicate to move on is there a significant NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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698 1 and adverse environmental impact from the proposed 2 action? That's the second step. If there is no 3 significant and adverse environmental impact, you 4 don't even to onto the next step, and in here, if you 5 -- as stated in our ER, there are no significant and 6 environmental impacts as supported by the entire 7 Environmental Report associated with license renewal.
8 Similarly, having an approved emergency 9 plan and evacuation plan similarly concludes this now 10 adverse -- significant or adverse impact on prison 11 populations. And we completely concur with the NRC 12 staff to segment the evacuation which we believe is 13 precluded entirely by the Commission's decision in 14 Millstone CLI 0524.
15 Again, I think we're trying to almost like 16 a repetitive issue here, we're trying to shoehorn 17 issues that the Commission has excluded from license 18 renewal into some other process. If I could quote 19 from the Commission, "Emergency planning is, by its 20 very nature, neither germane to age-related 21 degradation nor unique to the period covered by the 22 license renewal application".
23 So I believe, while that's a finding of 24 emergency planning, that principle applies to the 25 environmental justice evaluation conducted for license NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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699 1 renewal as well. So to reiterate, we believe they 2 haven't even passed the second step which is 3 establishing a significant and adverse environmental 4 impact and that is a necessary predicate for moving on 5 and that's -- the recent decision in Vogel discusses 6 that thoroughly.
7 CHAIRMAN McDADE: Okay, specifically what 8 in Vogel are you referencing?
9 MR. BESSETTE: There was a similar --
10 first of all, this is not a unique issue. The 11 emergency planning aspects of environmental justice 12 were raised in the Vogel early site proceeding. And 13 the Board decision with regard to the environmental 14 justice process and the decision making tree which you 15 don't even go into the consideration of adverse 16 impacts on minority and low income population, unless 17 you have first established that there is a significant 18 and averse impact. If you haven't established that, 19 there's no need to go on.
20 And your Honor, that is in LBP-07-3.
21 CHAIRMAN McDADE: Okay, and again, and I 22 don't want to belabor this and a lot of this is just 23 thinking out loud here, so please bear with me.
24 Again, not attacking the evacuation plan, starting 25 point here that that is outside the scope of this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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700 1 proceeding, but it is necessary to do an Environmental 2 Impact Statement from the staff's standpoint, you need 3 to submit information in the Environmental Report.
4 From the standpoint of environmental justice, it's not 5 enough just that you identify an environmental justice 6 population. You have to identify what the 7 disproportionate impact would be and if they're saying 8 that there is an environmental justice population 9 within close proximity to the plant, who cannot be 10 evacuated, not that the evacuation plan is inadequate, 11 but just that you have this group because of their 12 very nature who can't be, does the relicensing of the 13 facility which is the agency action, have a 14 disproportionate impact on them as opposed to the rest 15 of the population who can evacuate from this facility 16 in the event there is a reason for that during the 17 continued 20-year life of the facility?
18 And again, I'm just sort of, again, 19 thinking out loud here. I don't want to belabor it too 20 much but you know, I'm just trying to see, you know, 21 if it is precluded by the regulations or if it is 22 required by the regulations, that that circumstance be 23 considered as part of the EIS, not that it leads 24 anywhere, and I'm trying -- is there any way -- is 25 Vogel distinguishable on the facts?
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701 1 MS. SUTTON: Your Honor, in Vogel as I 2 recall from those arguments, the petitioners there had 3 argued similarly that, you know, emergency planning 4 needed to be looked at under environmental justice.
5 And in the end, the arguments that came back and the 6 arguments that are germane here apart from all the 7 arguments in the holding that Mr. Bessette has pointed 8 to is that there was no significant impact, so you 9 don't get to it.
10 But in addition, the emergency plans 11 themselves have provisions, for example, sheltering 12 provisions for prison populations and they insure that 13 there is no disproportionate impact on a low income or 14 minority population as defined in the environmental 15 justice regulation. So that's an added rationale 16 apart from the legalities for why it doesn't come into 17 scope. There is no disproportionate impact on those 18 populations through the plans themselves, which again, 19 a part of your current plant operations to insure the 20 safety of the local populations, be they minority, low 21 income or otherwise.
22 CHAIRMAN McDADE: Okay, and again, what 23 I'm trying to get is, I understand in the 24 environmental plan you could take and the question in 25 Vogel as well is you take that into consideration.
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702 1 You do what you can. You take reasonable steps with 2 regard to the population that you have. And you can't 3 -- and whether the environmental plan is adequate or 4 not, in any event, isn't something that's within the 5 scope of this particular proceeding.
6 MS. SUTTON: It is not, that's correct.
7 CHAIRMAN McDADE: And my only question and 8 again, just with the Environmental Impact Statement, 9 even though you take all reasonable steps to protect, 10 for example, a prison population by way of sheltering 11 whatever other steps, is it still a disparate 12 treatment from people who can just choose to get 100 13 miles, 200 miles away from the facility such that it 14 at least should be discussed and considered in the 15 Environmental Impact Statement and you know, at this 16 point, I guess what I need to do is just take another 17 look at Vogel, see whether or not there's anything 18 distinguishable, see whether or not what I've been 19 discussing here and asking input on is just simply too 20 speculative in any event based on the -- what is in 21 the record before us.
22 MS. SUTTON: Right, and it's a current day 23 issue and in Vogel again, as Mr. Bessette indicated, 24 there's a threshold test here so the Board never 25 needed to reach that particular issue, but if you do NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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703 1 go back and look at the pleadings in that case, you're 2 going to see plenty of briefing on that issue.
3 CHAIRMAN McDADE: Okay, thank you.
4 MR. FILLER: If I may, your Honor, this is 5 to the prison population. There's approximately -- of 6 the 20 million people in the 50-mile zone, something 7 of like I think 5 million of them are environmental 8 justice, they're either minority or indigent. And of 9 that indigent population, it's going to -- these are 10 people without cars, you know, without the ability to 11 be evacuated, essentially and so if you look at -- if 12 you take Katrina as an example, we can easily imagine 13 that if there is an evacuation, that the people that 14 are not going to be evacuated are going to be people 15 who can't afford to be evacuated. And so I think it's 16 really a factual issue that needs to be considered 17 here. That type of analysis would not be looked at in 18 any kind of emergency evacuation plan.
19 Also with regards to the significant 20 impact, Entergy is taking the position that because 21 there's no impact, therefore, they really don't have 22 to look at the EJ issues. And I think -- and there is 23 an impact, as I think Ms. Greene wants to speak to.
24 MS. GREENE: Well, I'd like to point out 25 that the plant is physically located between three NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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704 1 environmental justice communities as Entergy has 2 defined in the LRA, Peekskill, Haverstraw and West 3 Haverstraw. And we question whether there are no 4 significant impacts or no offsite discharges. There 5 are both planned and unplanned releases and discharges 6 that the people living nearest to the facility will be 7 first exposed to and when Mr. Mangano looked at those 8 populations as compared to populations with similar 9 environmental justice demographics located further 10 from the plant, the rates in those communities for 11 radiologic related cancers were higher. So we really 12 think that Entergy has to take a hard look and that 13 there is enough evidence to say that this is not 14 covered by a generic Environmental Impact Statement or 15 that there's reason not to look at it. We think there 16 are very good reasons to require a more -- a 17 supplemental look. Well, in this case, because no 18 look was done, a supplemental requirement for the 19 license renewal application to look at the 20 environmental justice impacts and we will continue to 21 work on them and through whatever channels are 22 available, bring that information to the Board.
23 CHAIRMAN McDADE: Okay, thank you.
24 MR. BESSETTE: Your Honor, if I could just 25 make one point. Environmental justice analysis is not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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705 1 a comparison of minorities within one mile to 2 minorities within 10 mines away. The environmental 3 justice analysis is compared to -- if there is a 4 significant adverse impact and assuming for the 5 purposes of my statement here there is, but we don't 6 believe there is, you compare that low income and 7 minority population to the general population. That's 8 what you compare. You said if there's an adverse 9 effect on the low income and minority population to 10 the general population. It's not comparing low income 11 minority populations close to the plant to low income 12 minority populations further away from that plant.
13 That is not the comparison that the environmental 14 justice requires and I believe that's what they've 15 just stated.
16 CHAIRMAN McDADE: Okay, thank you. Okay, 17 Clearwater Number 4 has to do with an allegation that 18 there were inadequate analysis of severe acts or 19 mitigation alternatives. This is in Clearwater 20 petition at about page 56. The responses by the NRC 21 staff and by Entergy are that there are no basis to 22 support this, that it is an attempt to tagalong with 23 New York Contentions 12 through 15 and Riverkeeper 24 Contention 2.
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706 1 the issue as to what is necessary in order to adopt 2 you know, given the -- is there anything further that 3 Clearwater would like to add on this? Is this 4 basically an attempt on your part to adopt New York 12 5 through 15 and Riverkeeper 2?
6 MR. FILLER: Well, it is that but it is 7 also -- it also is relevant in terms of the 8 environmental justice evacuation issues that we've 9 just discussed and so we believe an independent basis 10 for the admission of a contention is that the -- that 11 the mitigation alternatives need to be considered with 12 regard to the evacuation of the environmental justice 13 communities.
14 CHAIRMAN McDADE: But when you go to page 15 56 of your petition, there really is no factual basis 16 offered on your own, am I correct? I mean, it's the 17 allegation.
18 MR. FILLER: Right, right, that's correct.
19 CHAIRMAN McDADE: And you're relying on 20 the factual basis and expert basis that have been 21 submitted by New York and by Riverkeeper.
22 MR. FILLER: That's correct but we also in 23 the last sentence, refer to our environmental 24 contention 3 and 6 relating to environmental justice 25 and our terrace contention.
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707 1 CHAIRMAN McDADE: Okay, thank you.
2 MR. FILLER: And we incorporated by 3 reference our contentions EC 3 and 6.
4 CHAIRMAN McDADE: Okay, Clearwater 5 5 indicates, is an allegation --
6 JUDGE WARDWELL: Excuse me, can I ask one 7 question?
8 CHAIRMAN McDADE: Please, I'm sorry.
9 JUDGE WARDWELL: I'm a little confused.
10 And it deals with your relationship with Riverkeeper's 11 EC 2. As you state, you use the phrase "share 12 concerns with". Are you proposing to adopt their 13 contention or not?
14 MR. FILLER: Well, not at this time but we 15 reserve the right to.
16 JUDGE WARDWELL: Thank you.
17 CHAIRMAN McDADE: Okay, Clearwater Number 18 5, the Environmental Report doesn't consider renewable 19 energy as an alternative. This is similar to New York 20 9, 10 and 11. We had a discussion of this with New 21 York at some length the other day but let me ask to 22 Riverkeeper, the Clinton decision at 62 NRC 801, how 23 are the facts here significantly different so that the 24 Clinton decision would be distinguishable from what we 25 have before us in this particular case?
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708 1 MR. FILLER: Can you repeat the question?
2 CHAIRMAN McDADE: Okay, the -- one of the 3 responses by Entergy and the NRC staff is that they 4 don't have to do a review of alternative energy. That 5 that's not within the scope of the Environmental 6 Impact Statement that they need to consider in a 7 license renewal application. They cited the Clinton 8 case as support for that and claim that we were bound 9 by the ruling in Clinton and my question is just, is 10 there anything that you can point to factually in this 11 case that would distinguish the circumstances here 12 from the facts in Clinton so that we would not be 13 bound by Clinton and would have the ability to make 14 our own initial decision. Is there anything 15 specifically that you would like to address us to?
16 MR. FILLER: As far as distinguishing from 17 Clinton, we're not prepared to do that today but we'd 18 be happy to make a further submission in connection 19 with that.
20 CHAIRMAN McDADE: Okay, another aspect of 21 this is that in this regard, that the assertions that 22 you make are -- they don't explain why the analysis 23 fall short. Can you elaborate on why, in your view, 24 the analysis of the alternatives that were presented 25 in the ER fall short?
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709 1 MS. GREENE: I couldn't hear you. Could 2 we elaborate on why?
3 CHAIRMAN McDADE: Why you believe that the 4 alternatives analysis in the Environmental Report 5 submitted by Entergy are deficient.
6 MS. GREENE: I couldn't hear while you 7 were whispering, I'm sorry. I guess what I'd like to 8 say is the times are changing. As of June of 2007, 9 Lieutenant Governor David Paterson convened a 10 renewable energy task force for New York State and 11 last week they announced a 15 point very aggressive 12 plan and I think what's important is that in the past, 13 our thinking was that if one plant closed, you had to 14 figure out a single source for replacing the energy 15 that it generated, and that in the future that's not 16 how energy will be generated. That more and more will 17 be going to diversified systems and that that change 18 is very actively taking place and that that evaluation 19 was not done. It was done in what I consider an 20 outmoded context given how quickly our society is 21 shifting to an emphasis on energy efficiency and 22 renewable energy.
23 MS. LEE: I would just say conservation 24 here is king. There have been ample studies coming 25 out in recent years that's showing that simply by --
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710 1 a perfect example is what happened in California after 2 the Enron generated energy crisis. It was California 3 through primarily conservation methods, you know, 4 within a year reduced the energy requirements of the 5 state by 12 percent.
6 This study came out last year. I believe 7 it was on, for instance, New York City being able to 8 generate 6,000 megawatts from solar panels on flat 9 roofs. There is just so much out there that they're 10 completely ignoring and just simply cherry-picking 11 what works for them. It's a factual -- it's an issue 12 of fact that's in dispute.
13 MS. GREENE: And the other very, very 14 important sources is repowering of existing facilities 15 to increase their efficiency and that's also part of 16 the 15-point plan.
17 CHAIRMAN McDADE: Okay, thank you. The --
18 anything further on that?
19 JUDGE WARDWELL: No.
20 CHAIRMAN McDADE: The Clearwater 21 Contention 6 has to do with the Environmental Report 22 failing to consider the potential harm to the 23 surrounding area of terrorist attack on the facility 24 including its spent fuel pools, control rooms, water 25 intake valves, cooling pipes, and electrical system.
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711 1 This is very similar to other contentions 2 that have been submitted, specifically Connecticut 3 Contention 2, New York Contention 27 that we have 4 discussed in some detail before. Specifically, it's 5 been the position that Entergy and the NRC staff that 6 this is a Category 1 issue, not within the scope of 7 this proceeding. They have suggested to us that the 8 Commission's decision in the Oyster Creek case in New 9 Jersey is controlling upon us in this particular case 10 and that therefore, we cannot, even if we were 11 predisposed to do so, consider the impact of terrorist 12 attack. Is there anything that you can point to us 13 about Indian Point that would distinguish it from the 14 factual circumstances in Oyster Creek such that we 15 would be able to exercise discretion in this area?
16 MR. FILLER: Well, a few of the points I 17 did address in my opening comments relating to the 20 18 million people within 50 miles of Indian Point, the 19 fact that I believe Oyster Creek has one reactor and 20 one spent fuel pool, Indian Point to two reactors and 21 three spent fuel pools. And the third point is, is 22 that because of the 9/11 Commission mentioned that al-23 Qaeda was considering a power plant near New York as 24 a possible target, and we believe and it seems obvious 25 that Indian Point would be the biggest target if there NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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712 1 were to be a target, you know, a target on a nuclear 2 plant, simply because of the population and the 3 devastation to the entire -- the economics of the 4 country and the world. So we believe that it is 5 unique.
6 CHAIRMAN McDADE: Okay, thank you. Does 7 the NRC staff have anything in response to that?
8 MR. CHANDLER: No, your Honor.
9 CHAIRMAN McDADE: Entergy?
10 MS. SUTTON: No, your Honor.
11 MR. BESSETTE: No.
12 CHAIRMAN McDADE: Okay, that concludes the 13 questions we have with regard to the contentions 14 submitted by Clearwater. Thank you. Before we break, 15 is there anything further you would like to say in 16 closing?
17 MR. FILLER: No, thank you. Thank you 18 very much.
19 CHAIRMAN McDADE: Okay, thank you. Okay, 20 what we would propose to do, it's now 2:35, is to take 21 a 10-minute break to about 2:45 and then continue with 22 the remaining contentions submitted by the Connecticut 23 residents opposed to relicensing Indian Point. Thank 24 you.
25 (A brief recess was taken at 2:39 p.m.)
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713 1 CHAIRMAN McDADE: Okay, please be seated.
2 Okay, the proceeding will continue. Again, we are 3 here in the matter of Entergy Nuclear Operations, 4 Inc., Indian Point Nuclear Generating Plants 2 and 3, 5 license renewal application, docket number 50-247 and 6 286 LR.
7 There are contentions that have been 8 submitted by the Connecticut residents opposed to 9 relicensing of Indian Point. We're ready to proceed 10 with oral argument with regard to the admissibility of 11 -- actually it's a single contention from the 12 standpoint of the Connecticut residents opposed.
13 Before we begin with questioning with 14 regard to that contention, for the record, would you 15 please identify yourself?
16 MS. BURTON: Good afternoon, I'm Nancy 17 Burton and I am here on behalf of Connecticut 18 residents opposed to relicensing of Indian Point and 19 also myself individually. And I want to first of all 20 thank the Board very much for the opportunity to be 21 here to present our case on our sole contention. And 22 I also wanted to extend a very special thanks to 23 Governor Spitzer and the State of New York for 24 demonstrating such leadership here as a public 25 advocate and setting a high standard.
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714 1 As you will know from reading the papers 2 that have been presented here, and as you heard from 3 the Connecticut Attorney General's office, Connecticut 4 is very concerned about this application and in fact, 5 Fairfield County is located entirely within 50 miles 6 of Indian Point and has one million people. It's 7 becoming not uncommon in Fairfield County in the area 8 closest to Indian Point for there to be incidences of 9 teenage girls being diagnosed with breast cancer and 10 teenage boys to be diagnosed with prostate cancer.
11 And in fact, recently, in a town not far from where I 12 live, at 10-year old boy died of leukemia.
13 We are nearing that point when Indian 14 Point is nearing the end of its original licensing and 15 we all know that in the 1970s when -- before the 16 plants went online, the health effects of exposure to 17 radiation by the public was a matter that was little 18 known or understood and, in fact, plunking three 19 nuclear reactors in a very densely populated zone as 20 Indian Point is, was in a manner of speaking, one very 21 large science experiment. Well, at this point in 22 time, the results of the science experiment are coming 23 in and they're coming in most scientifically through 24 the work of the Baby Tooth Study.
25 Long ago, as our materials show, the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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715 1 Federal Government actually sponsored a Baby Tooth 2 Survey that was extensive and that was because of a 3 concern that was justified that radioactive fallout 4 from nuclear weapons testing was having a terrible 5 effect in that children all were absorbing radiation 6 in their teeth and in their bones and we -- in the 7 intervening period of time, the Federal Government has 8 abandoned its own efforts to continue those studies 9 and the work has been carried out recently by the 10 Radiation and Public Health Project. Joseph Mangano, 11 who is one of our experts is the Executive Director of 12 that organization.
13 And he has provided rather shocking 14 information, shocking to us with regard to his studies 15 near Indian Point that show that of the 500 or so baby 16 teeth collected from families with children near 17 Indian Point, there are elevated levels of strontium 18 90 in the teeth above what you would expect and 19 furthermore if one were to draw concentric circles 20 with its center point at Indian Point, you would find 21 the closer you get to Indian Point, there happens to 22 be a correlation in the strontium 90 in baby teeth, 23 the level goes up.
24 And this Mr. Mangano has found to be the 25 case even in extending to Fairfield County. And as NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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716 1 his declaration indicates, Fairfield County has the 2 highest cancer rates in our state and the towns 3 closest to Indian Point have the highest of Fairfield 4 County. And there are also most troubling statistics 5 that Mr. Mangano has put together from public data 6 sources such as the Connecticut Tumor Registry that 7 show that cancer among children in our area is high --
8 is higher than elsewhere in the state, higher than the 9 national average and higher -- more children are dying 10 -- pardon me. The rate of cancer that is fatal to 11 children is higher than the rate of fatalities of any 12 other causes of death among children. I don't know if 13 I said that very well. Mr. Mangano did, but it all 14 adds up to something very shocking.
15 Now, we know that the Nuclear Regulatory 16 Commission is dedicated to the health and safety of 17 the public and how do we know that, well, from the 18 various documents that the NRC has prepared. It also 19 is a matter of law that the NRC has to be concerned 20 with the public health of the communities around 21 nuclear power plants.
22 And we know from the GEIS and I'll refer 23 to that as the GEIS, I hope you will understand when 24 I do, that the NRC evaluated radiation as an 25 environmental contaminant when the GEIS was prepared NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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717 1 for publication back in 1996. We've taken a look at 2 the GEIS and discovered that most of the information 3 that formed the data for the postulations for future 4 performance of nuclear power plants actually was taken 5 from the 1970s and the 1980s. Well that was when the 6 nuclear power industry was in its infancy in this 7 country and less prone to the kinds of problems that 8 give rise to cracks and leaks that aging reactors may 9 be subject to.
10 We have pointed out that the GEIS, in its 11 evaluation and in its predictions for the future, 12 actually made statements such as that in Section 13 4.6.2.3, that radiation exposures to the public are 14 decreasing and can be expected to decrease over time.
15 And the GEIS says at Section 4.6.2.4, let me start 16 again, 4.6.2.4, that there are no changes anticipated 17 in the operation of the nuclear power plants over the 18 licensing periods that would lead to a different 19 thought about radiation and its effects on the public.
20 And, in fact, Entergy in its application 21 references its own most recent environmental effluent 22 report filed with the NRC dated 2006, in which it 23 makes the statement, quote, "If operations in" --
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718 1 background levels", unquote.
2 Well, I'm aware of my time limit here but 3 I want to point out how absolutely absurd that comment 4 is and how it informs our proceedings here on this 5 contention. The radionuclides that are released 6 routinely by Indian Point do not just disappear.
7 Radioisotopes such as xenon-135 have a half life of 8 three million years. Radioactive tritium remains 9 biologically active for 246 years. They don't just go 10 away, they stay in the environment and they bio-11 accumulate and they -- people are exposed to them.
12 So it's just simply completely wrong for 13 Entergy to say in this important proceeding that the 14 public is not exposed to radiation from the plant, 15 which is how it seems to be addressing the issue. We 16 point to new -- we recognize that the issue of 17 radiation effects on the public and workers has been 18 categorized as a Category 1 issue, but we cite to new 19 and significant information that is site specific, 20 that brings this issue within the scope of these 21 proceedings and specifically we cite to the upward 22 trending of radiation releases over the past few years 23 during the early part of the century and again the 24 reference point of the GEIS is May, 1996 before this 25 seemed to be starting to happen.
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719 1 We point, of course, to the Baby Tooth 2 Study and the correlation of our expert between the 3 heightened levels of strontium 90 in the baby teeth 4 that were analyzed and the correlation with a higher 5 incidence of cancer among the children whose teeth 6 registered high. And we also point to the 7 plausibility of making a scientific conclusion that 8 Indian Point's radiation releases may well be 9 responsible for a growing cancer and other disease 10 epidemic among the community.
11 And the information is site specific 12 because this is information that Mr. Mangano collected 13 in the area around Indian Point. His materials show 14 that he has also and his organization have also 15 collected teeth around other nuclear power plants and 16 show -- those teeth also will show a higher levels but 17 I just wanted to anticipate a question here by saying 18 that I don't believe it's the burden of a petitioner 19 to show what the case is at every nuclear power plant 20 in the country.
21 I think it's quite enough to demonstrate 22 that we have site specific information and here we do 23 concerning Indian Point, and therefore, our contention 24 should be accepted. At the same time, we have filed 25 a waiver request under 10 CFR 2 -- 10 CFR Section NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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720 1 2.335 so that we will be able to present this issue 2 without any concern that it may be excluded as a 3 Category 1 issue and I believe that we have made the 4 adequate filings that are necessary to qualify there.
5 So essentially, where Entergy has 6 submitted its application, it has not analyzed at all 7 the health effects of its operations on the community 8 during the relicensing period. It has postulated that 9 the effects are small and we believe that that 10 presents a factual issue and, in fact, the 11 significance is large and here I will quote from the 12 GEIS documents, from the NRC website, "To qualify as 13 large, environmental effects are clearly noticeable 14 and are sufficient to destabilize important attributes 15 of the resources".
16 Well, here we're talking about the human 17 population and we're talking about incidences of 18 cancer attributable to radiation exposure and as we 19 have stated in our papers, and as was brought out by 20 the Clearwater speakers, these proceedings are being 21 conducted it seems, on the basis of standards that are 22 decades old. And the GEIS itself is now 12 years 23 old. The GEIS presumed that it would become updated 24 over time. It hasn't but we are here today to present 25 you with new and significant updated information that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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721 1 is critical to be considered by the Board during these 2 important proceedings and therefore, we hope that you 3 will find and agree with us that this contention is 4 admissible. Thank you.
5 CHAIRMAN McDADE: Thank you. One of the 6 defenses proffered by Entergy in this particular 7 instance is that the information you categorize as 8 new, specifically evidence generated by -- in the 9 Mangano Baby Tooth Study, has to do with increased 10 levels of strontium 90 and one of the things they have 11 indicated is that the only potential source for 12 strontium 90 at Indian Point is the spent fuel pool at 13 Indian Point 1, that Indian Point 1 is not subject to 14 this relicensing procedure, that whatever happens with 15 regard to relicensing of Indian Point 2 or Indian 16 Point 3 the exact same thing is going to happen with 17 Indian Point 1 and that that spent fuel pool will be 18 removed at approximately the same time regardless of 19 what happens in this proceeding.
20 Do you contest or have anything to add to 21 that, that there is anything in your filing indicating 22 that there is another source of strontium 90 other 23 than Indian Point 1. And if that's the case, does the 24 Baby Tooth Study by Mangano constitute new and 25 significant evidence that might take this out of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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722 1 generic impact statement?
2 MS. BURTON: Thank you very much for that 3 question. Frankly, I don't recall seeing that issue 4 being raised by Entergy and, in fact, I would like to 5 see the reference because I'm sure Entergy knows as 6 well as the Board knows and the staff knows that 7 Indian Point routinely releases huge amounts of noble 8 gasses, which are radioactive, which include various 9 radioisotopes of krypton and krypton, once it's 10 released rapidly decays to strontium 90.
11 And because the releases I'm talking about 12 are released in the air, the strontium 90 is released 13 into the environment via the air and a pathway, of 14 course, to children is that the strontium 90 which is 15 a particulate, finds its way through weather 16 conditions or wind, rain, snow, hail, sleet, into the 17 lower parts of our atmosphere, to grass, grazing cows, 18 breathing, swimming. There are very many paths by 19 which human beings absorb strontium 90. It's not just 20 -- it doesn't just come from the spent fuel pool.
21 CHAIRMAN McDADE: Are there any specifics 22 with regard to the release of gaseous radionuclides 23 about the Indian Point facilities 2 and 3, that would 24 be different from what we would find generically in 25 all nuclear power plants or most nuclear power plants NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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723 1 throughout the United States?
2 MS. BURTON: Well, I'm not expert as to 3 what happens at all nuclear power plants. All I know 4 is what the GEIS said. And the GEIS said radioactive 5 levels are decreasing and will decrease over time over 6 the relicensing period. We know, though, that at 7 Indian Point just the opposite is happening and in Mr.
8 Mangano's papers which are submitted here, he has 9 given figures and tables that indicate how the noble 10 gasses have been released at changeable rates, but yet 11 seem to be reaching higher levels of releases. This 12 is, therefore, site specific information that 13 differentiates Indian Point Operations from other 14 nuclear power plants.
15 I mean, here, again, the burden on a 16 petitioner is not to tell you what is happening at 104 17 nuclear power plants with regard to noble gas releases 18 into the environment. Are they going up or are they 19 going down? The document that really governs here is 20 the GEIS and the GEIS is not applicable because it is 21 not applicable to the site specific conditions that we 22 know are the case at Indian Point.
23 CHAIRMAN McDADE: Okay, other than the 24 Baby Tooth Study, in the papers that you put forward, 25 is there something specifically and again, that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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724 1 attaches it to Indian Point as far as the release of 2 radionuclides that indicates that it is different than 3 it is at any other facility? You said, and he has 4 done -- you know, put together and I guess other than 5 the Baby Tooth Study, it's not so much doing the 6 studies as compiling data from other studies that have 7 been done. But is there a situation, new information 8 that we can point to that you can direct us to, that 9 is unique to Indian Point that we would not expect, 10 that is not consistent with other nuclear power plants 11 as well?
12 MS. BURTON: Right, well, let me just 13 think about that for a moment. One factor certainly 14 is the capacity factor that Mr. Mangano cites in his 15 papers. In fact, if you do -- go back to what he had 16 to say about that, the capacity factor at Indian Point 17 has risen by 40 percent in six years. I'm not sure if 18 that takes into account -- at the time that that was 19 written, I'm not sure and I don't think it took it 20 into account the most recent power uprate which 21 occurred in 2005.
22 And of course, when you have a power 23 uprate, that corresponds with an increase in 24 radiation, emissions to the environment. I've cited 25 to an application actually by the Millstone Nuclear NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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725 1 Power Station.
2 CHAIRMAN McDADE: Do you have a page or 3 paragraph cite for that?
4 MS. BURTON: To which?
5 CHAIRMAN McDADE: The capacity that you 6 indicated that Mr. Mangano referred to?
7 MS. BURTON: I believe it was his original 8 declaration. If I may have a moment?
9 (Pause.)
10 MS. BURTON: On the Table of Contents 11 here, I missed it.
12 CHAIRMAN McDADE: That's fine. Rather than 13 taking up the time right now, if you could just give 14 us that cite later.
15 MS. BURTON: I will be very happy to.
16 CHAIRMAN McDADE: Okay. And specifically, 17 you know, I don't think it would require an additional 18 pleading. If, when you get the opportunity, if you 19 would just send an e-mail with that cite, with copies 20 to the NRC staff and to counsel for Entergy.
21 MS. BURTON: I've been corrected. I'm 22 referring -- let's see, I believe it's at page 6 in 23 the Mangano Indian Point Public Health Risks Report.
24 I think I was looking at the wrong document.
25 CHAIRMAN McDADE: Not his declaration but NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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726 1 his report.
2 MS. BURTON: Right, his health report, 3 right, page 6.
4 CHAIRMAN McDADE: Okay, thank you.
5 MS. BURTON: Which states that the 6 capacity factor of Indian Point Units 2 and 3 from 7 2001 to 2004 was 94.6 percent, 95.6 percent or an 8 average of 95 percent, an increase from the pre-1995 9 factors of 64.7 percent and 50.4 percent for an 10 average of 58 percent.
11 CHAIRMAN McDADE: Okay, again, that's site 12 specific to Indian Point. Is there anything 13 specifically to tell us any other data that 14 distinguishes Indian Point that makes Indian Point 15 appear significantly different in the imprint it 16 leaves than the imprint left by other nuclear power 17 plants within the United States?
18 MS. BURTON: Well, the Board has heard 19 from other petitioners, certainly with regard to 20 radiation releases which have occurred through 21 leakage, one of which, I guess, was first identified 22 in 2005 and now is known to be an extremely 23 significant issue.
24 We also know from -- one of the 25 submissions that we presented had a reference to the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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727 1 violation record of Indian Point which is very, very 2 site specific and we know that Indian Point was, of 3 course, put on the NRC's watch list for being so 4 problematical, namely meaning that the company was not 5 operating it properly within the licensing standards.
6 We know about the current problem that 7 relatively -- I don't know if it's still current but 8 it's been a longstanding problem on the part of 9 Entergy to comply with NRC orders regarding the 10 operations of its siren system. And to the extent 11 that the NRC has recently suggested it would have to 12 resort to a fine of the company in the amount of 13 $650,000.00. I'm not exactly sure what the current 14 status of that issue is.
15 But all of that kind of information 16 supports a high level of concern that this plant, 17 Entergy's Indian Point, is problematical and therefore 18 susceptible to a high level of skepticism that in the 19 relicensing period it will be able to comply with the 20 federal law because it hasn't so far. And when you 21 have a company -- when you have Entergy making 22 statements like it did that in 2006 the public wasn't 23 exposed to radiation above background levels 24 attributable to Indian Point, and you juxtapose that 25 with the company's own reports of what it admits to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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728 1 releasing, which is significant --
2 JUDGE WARDWELL: Do you have any 3 information that shows that Indian Point wasn't 4 operating in accordance with the release levels 5 allowed in the regulations?
6 MS. BURTON: The information that we have 7 is public -- the only information that we have on that 8 point is what we may happen to come across in the 9 NRC's database and what you principally find there are 10 Environmental Reports of Entergy, and Entergy's 11 assessments of its own radiation releases. At least 12 with regard to the current ones, I believe the company 13 is making sure to a fault that it's able to say that 14 it never exceeds federal licensing standards.
15 Sitting here, I can't say if that may be 16 completely accurate. I have no reason -- I don't 17 have any basis to differ with it, but the point of our 18 contention here is that it doesn't matter for purposes 19 of the health effects if Entergy is complying strictly 20 with the NRC's limits of radiation because the 21 radiation is ending up in the baby teeth of children 22 who are going to be more vulnerable to suffer terrible 23 debilitating or potentially fatal diseases because the 24 new and current information which is widely if not 25 completely endorsed and accepted by the scientific NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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729 1 community is that there is no level of radiation 2 exposure that is safe.
3 In fact, our own Academy of Sciences, an 4 arm of Congress, has in its most recent pronouncement 5 said so. And we don't have any reason not to believe 6 that, and therefore, we have every reason to be 7 concerned that Indian Point operation in the 8 relicensing period will entail releases of radiation 9 which will cause harm to the health of the community.
10 JUDGE WARDWELL: Okay.
11 JUDGE LATHROP: I have a question for the 12 NRC staff about the uniqueness of Indian Point in this 13 question. I believe the staff has said that the 14 Mangano assertion that Indian Point emissions exceed 15 most other reactors is contradicted by actual 16 references. Is that correct?
17 MR. TURK: That's correct and those are 18 the references that Mr. Mangano himself utilized.
19 JUDGE LATHROP: That was the question.
20 JUDGE WARDWELL: And continuing on, staff 21 do you routinely review the radiation release reports 22 submitted by Entergy?
23 MR. TURK: Yes.
24 JUDGE WARDWELL: Have you seen anything 25 that leads you to believe that, in fact, their NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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730 1 releases don't meet those that are allowed by 2 regulation?
3 MR. TURK: We have not seen anything that 4 would indicate they do not meet the regulations.
5 JUDGE WARDWELL: Thank you.
6 CHAIRMAN McDADE: Okay, the next item that 7 I wanted to take up had to do with the waiver and a 8 request for waiver was filed on behalf of the 9 Connecticut residents on December 10th, `07, 10 specifically requesting a waiver to the degree that 11 this were considered a Category 1 item, and outside 12 the scope of this proceeding, to expand the scope of 13 the proceeding.
14 In order for us to make that finding, we 15 will have to make a finding that the Generic 16 Environmental Impact Statement, as applied here, would 17 not serve the purposes for which it was intended with 18 regard to the treatment of radiation exposure to the 19 public. So I guess my first question has to be from 20 the standpoint of Connecticut residents, what do you 21 view the purpose of that Generic Environmental Impact 22 Statement was?
23 MS. BURTON: Yes.
24 CHAIRMAN McDADE: And then the follow-up 25 question is why would that purpose not be served in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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731 1 this instance?
2 MS. BURTON: The purpose of the GEIS --
3 it's not for us, I don't believe to say what the 4 purpose is because the GEIS self-describes its purpose 5 as being a tool for the NRC to assess the 6 environmental effects that it could consider during a 7 relicensing phase for nuclear power plants. So the 8 purpose of the GEIS is to advise the Commission, for 9 instance, with regard, narrowing this down to the 10 issue that we present in the contention, with respect 11 to the risk to the public and workers from continued 12 operations of Indian Point during the relicensing 13 term. It's to be a tool to assist in the proper, fair 14 and reasonable determination with regard to 15 relicensing on that issue.
16 CHAIRMAN McDADE: Okay, well, 17 specifically, if we look to the Federal Register 18 notice, when the GEIS was enacted by the NRC back in 19 1996, it indicated that its purpose was to establish 20 and environmental review requirement that were 21 efficient and effectively focused to categorize issues 22 that were applicable to all power plants or specific 23 groups of power plants and to avoid revisiting a plant 24 on a plant -- avoid revisiting these issues on a 25 plant-by-plant basis. They were seeking to protect NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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732 1 the public health with a margin of safety but to do it 2 in a way that was efficient and to do it in a way that 3 was consistent.
4 That said as the articulated basis of the 5 agency, why is that purpose not served if it is 6 applied here at Indian Point?
7 MS. BURTON: Let us look at the meaning of 8 the terms "sufficient" and "effective", and let us 9 presume that they are to be taken at face value. An 10 efficient application and an effective application 11 will take into account the true facts that are 12 pertinent to an evaluation of the actual risks of 13 operation during a relicensing period.
14 The site specific information that we have 15 presented with regard to Indian Point is in a --
16 differs very substantially from the projections of the 17 GEIS on this issue. The GEIS states that over time --
18 that it has looked at all nuclear power plants and 19 over time, they will have a decrease in their 20 radiation releases to the environment and that their 21 effect on the public and the health of the public will 22 be small and let me just go to the definition of 23 small.
24 The definition of small is, and this is 25 from the GEIS website material on the NRC website, to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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733 1 be small, "environmental effects are not detectable or 2 are so minor that they will neither destabilize nor 3 noticeably alter any important attribute of the 4 resource. For the purposes of assessing radiological 5 impacts, the Commission has concluded that those 6 impacts that do not exceed permissible levels in the 7 Commission's regulations are considered small".
8 Well, the fact is that the information 9 that we present shows that the environmental effects 10 of radiation emissions from Indian Point are large or 11 will be large. I believe they are large now but that 12 in the relicense period, they will be quote "large",
13 unquote, which again --
14 CHAIRMAN McDADE: Well, let's go back and 15 revisit that a little bit.
16 MS. BURTON: -- that they will be clearly 17 noticeable.
18 CHAIRMAN McDADE: In the Generic 19 Environmental Impact Statement, they say that if the 20 emissions are within the regulatory limits, then they 21 view that the impact will be small. And from 22 questions that have already been posed, you indicated 23 that you are not aware and there is not anything in 24 the record at this point that indicates the emissions 25 are outside those regulatory limits, nor is there NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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734 1 anything in the record at this point that indicates 2 from which we could reasonably draw out conclusion 3 that it is expected that they will be outside the 4 regulatory limits within the period of extended 5 operation. To make that conclusion would be 6 speculative. That being the case, when you are saying 7 that these are, in fact, large impacts as opposed to 8 small impacts, are you not saying not that this is not 9 serving the purpose of the Generic Environmental 10 Impact Statement but rather that in this respect the 11 Environmental Impact Statement is just wrong and if 12 you're saying that it's wrong, isn't your remedy to 13 seek a petition under 2.802 rather than a waiver under 14 2.335?
15 MS. BURTON: Not at all. Our point here 16 is not to say that the GEIS is wrong. The GEIS is 17 what it is. Our --
18 CHAIRMAN McDADE: It describes there 19 impacts as small though.
20 MS. BURTON: Pardon me?
21 CHAIRMAN McDADE: It describes there 22 impacts as small. It says if the emissions are within 23 their regulatory limits and right now we have no 24 evidence indicating that they are not within the 25 regulatory limits, that the impact will be small. And NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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735 1 what you're saying is, "We have looked at it, we have 2 made a" -- and your expert has looked at it and 3 concluded that these impacts are large, not that 4 they're outside the regulatory limits but looking at 5 it objectively, you're saying they're large.
6 Isn't that saying the conclusion reached 7 in the Generic Environmental Impact Statement is wrong 8 and should be changed?
9 MS. BURTON: We are not addressing whether 10 the GEIS should be changed generically for all nuclear 11 power plants. We are only addressing site specific 12 conditions at Indian Point. It may well be that the 13 GEIS should be updated as to all nuclear power plants.
14 We're not the ones to say that. We haven't done the 15 research as to other nuclear power plants, but what we 16 know here is that there has been no analysis that I've 17 seen in the application for license renewal by Entergy 18 that even attempted to analyze the health effects from 19 the radiation releases from the plant.
20 That really is our point here. That is 21 something that hasn't been considered at all. That 22 there's been almost a knee-jerk reliance upon a rather 23 empty assertion that because -- this is the GEIS 24 saying over time because the radiation releases will 25 decrease, the effects will be small, without NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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736 1 analyzing, without analysis.
2 CHAIRMAN McDADE: Okay, but at this point 3 in time, you are not alleging that there's anything in 4 the record currently that demonstrates that the 5 emissions have been outside regulatory limits in the 6 past.
7 MS. BURTON: Well, let me say --
8 CHAIRMAN McDADE: Not agreeing with what 9 the regulatory limits are but just whether they have, 10 in fact, been outside those regulatory limits.
11 MS. BURTON: We did make reference through 12 the declaration of Dr. Helen Caldicott, paragraph 25 13 of her declaration.
14 CHAIRMAN McDADE: I'm sorry, I couldn't 15 hear.
16 MS. BURTON: I'm sorry. We did make 17 reference in paragraph 25 through the declaration of 18 Dr. Helen Caldicott with regard to the incident on 19 February 15 th, 2000 when a steam generator at Unit 2 20 released some 19,197 gallons of intensely radioactive 21 water from the primary coolant into the atmosphere.
22 And that the then owner of the plant had 23 detected indications of degradation during steam 24 generator inspections in 1997 but had failed to 25 correct the problem. I'm not prepared to say that in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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737 1 the February 16th,200 incident that is -- that I have 2 just referenced that there were releases from Indian 3 Point that exceeded the permissible levels of -- that 4 are set by the federal standards.
5 But at the same time, I'm not prepared to 6 believe absolutely that that did not happen. We don't 7 really have any way to know because we rely entirely 8 on the self-reporting of Entergy. And we have read 9 through the Environmental Reports, from 2000 to 2006, 10 of environmental monitoring of radioactive 11 contamination in the community and in every aspect the 12 statements seem to always be that although there were 13 radionuclides discovered in the environment. They 14 couldn't and didn't emanate from Indian Point. And 15 this would be with regard to information involving 16 some of the aquatic life and other environmental 17 indicators in the community.
18 Well, we are not prepared to really accept 19 that. That is just not plausible. You cannot have a 20 continuous release of a potent carcinogen to the 21 community and have it just disappear. It doesn't.
22 CHAIRMAN McDADE: Okay, I think I 23 understand your position on that. Ms. Sutton?
24 MS. SUTTON: Whether the petitioners are 25 willing to accept it or not, the plant is in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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738 1 compliance with 10 CFR Part 20 and Part 50, Appendix 2 I. There's nothing in the pleading, there's nothing 3 in the declarations of Mr. Mangano or Ms. Caldicott 4 that assert in any way that we are not in compliance 5 with radiological release standards and the staff 6 counsel confirmed to Judge Wardwell that, in fact, 7 it's not just self-reporting, the NRC's process is 8 such that they do audited inspections of our 9 compliance with these requirements.
10 CHAIRMAN McDADE: So I take it then, from 11 what you just said, it's your position that this 12 constitutes a direct attack on the regulation itself 13 and that that's not properly part of this proceeding.
14 That if it were going to be attacked, if the 15 regulation was inadequate, it would be pursuant to 10 16 CFR 2.802, rather than through a 2.335 petition. It's 17 your position that it would be inappropriate to pursue 18 it this way because there's been no demonstration 19 that to do so would better facilitate the purposes for 20 which this regulation specifically the GEIS was 21 designed.
22 MS. SUTTON: Yes, your Honor. And her 23 claims are in no way unique to this facility.
24 CHAIRMAN McDADE: One of the things that 25 you make a reference to is the reference man, during NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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739 1 the course of -- and my question is, how is it 2 different here? How is the use of the reference man 3 that again, you say is inappropriate? How is it 4 different hear at Indian Point than it is for any 5 other facility and accordingly, isn't that attack not 6 an attack on the -- something unique to Indian Point 7 that should be made part of a waiver, but rather 8 something that should be a basic attack on the 9 regulation under 2.802?
10 MS. BURTON: We did not develop the 11 reference man issue very much in our filing but the 12 fact is that as has been stated previously, Indian 13 Point does have the highest concentration of 14 population of any nuclear power plant in the country, 15 50 million people, within 20 miles. That makes it 16 very unique with respect to the need too, for the NRC 17 to adequately safeguard the health of those 20 million 18 people and most particularly the children who are most 19 vulnerable.
20 I think I have cited to the study, of 21 course, I have, of the Institute for Energy and 22 Environmental Research which released a very important 23 study on October 19th, 2006, entitled "Science for the 24 Vulnerable", setting radiation and multiple exposure 25 environmental standards to protect those most at risk.
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740 1 More are most at risk near Indian Point 2 than any other facility in the country and for that 3 reason, it is a site specific issue.
4 CHAIRMAN McDADE: Okay, I've got a 5 question with regard to one other issue and that has 6 to do with adoption of contentions of other parties.
7 We have asked this of the NRC staff and of Entergy a 8 number of times in the context of presentation by 9 other punitive interveners and the issue has arisen, 10 in the event that we should find that the contention 11 that you offered was outside the scope and if we were 12 not to grant a 2.335 waiver, whether or not CRORIP 13 could adopt the contentions without having a 14 contention of its own admitted. Do you wish to 15 address that issue?
16 MS. BURTON: Yes, I do and I'll be quite 17 forthright on that point. I think the language of the 18 applicable regulation is difficult to -- it's 19 difficult to argue with that language, that a party 20 who does propose a contention which is not admitted, 21 nevertheless, can participate in the proceedings, I 22 don't think I could make a very, very strong argument 23 that if this Board were to find our contention not 24 admissible that we would be able to proceed through by 25 bootstrapping onto other petitioners.
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741 1 CHAIRMAN McDADE: Okay, we have no other 2 questions at this time. Before we close, is there 3 anything specifically briefly that you would like to 4 bring us to our attention that you believe has not 5 been adequately discussed here so far?
6 MS. BURTON: Yes, I do, I would. There 7 are two points I'd quickly like to get back to. I 8 would -- it would be very unfortunate if this Board 9 were to believe that our petition, our contention, was 10 directed as an attack upon the GEIS. It is not. But 11 even if it were, because we have properly sought a 12 waiver, we should be permitted to proceed here. So I 13 hope that that has been made clear.
14 I would like to, if I might, address a 15 little bit more how we have qualified through our 16 waiver petition by meeting the standards and criteria, 17 if I might do that briefly.
18 CHAIRMAN McDADE: If you could briefly.
19 I mean, we've read your petition. It's laid out there, 20 but if you could briefly summarize it or anything you 21 would like to emphasize.
22 MS. BURTON: Thank you. And just before 23 I do that, the other point I wanted to bring up was in 24 response to the question of Dr. Lathrop to the NRC 25 staff. The NRC staff made certain comments about Mr.
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742 1 Mangano's original declaration in its answer to our 2 petition. And in response to that, Mr. Mangano 3 prepared a second declaration dated February 8th, 2008 4 and that we incorporated in our response and one of 5 the issues that he addressed was the very issue that 6 you raised with the staff and so I hope that you have 7 an opportunity to review his second declaration.
8 If I could just have a moment to find what 9 I'm looking for. With regard to the waiver petition 10 under 10 CFR Section 2-335, the four criteria are all 11 satisfied. First, the rules strict application would 12 not serve the purposes for which it was adopted. We 13 kind of had begun to get into that but it would not be 14 efficient or effective for the Board, for the NRC, to 15 not address in these proceedings the actual and true 16 health effects of radiation emissions upon the public 17 in the relicensing period based on the facts that we 18 have set forth in our petition.
19 Why would it not be efficient or 20 effective? It would simply be wrong and it would be 21 allowing continued operation in an atmosphere of false 22 information, that is not fully cognizant of the true 23 facts. So under any consideration of the meaning of 24 efficient and effective, the purposes of the GEIS 25 would not be served.
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743 1 The second criterion, the movant has 2 alleged special circumstances that were not considered 3 either explicitly or by necessary implication in the 4 rulemaking proceeding leading to the rule sought to be 5 waived. Well, the special circumstances are again, 6 going back to the GEIS, the fact is that the 7 operations of Indian Point have changed. The GEIS 8 said they wouldn't change in a way that would increase 9 radiation releases. Well, they have changed because 10 Indian Point has gone through power uprates which have 11 been consistent with automatically releasing 12 additional radioactive emissions to the environment.
13 And, of course, the second special 14 circumstance that we have dwelled on here is that the 15 radiation releases are escalating, they're not going 16 down. So these are special considerations that the 17 GEIS did not take into account. There are other 18 special considerations such as the effects of 19 radiation on developing babies and young children 20 under the standards and the sophisticated knowledge 21 that we have today which, frankly, we didn't have when 22 the GEIS was being published. So we satisfy the 23 second criterion.
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744 1 class of facilities. Well, we have demonstrated the 2 facts that we have about how radiation releases have 3 been escalating in Mr. Mangano's declarations, how 4 there have been uprates, how there have been very, 5 very significant, 40 percent increases in capacity 6 factors. When you have increased capacity, you have 7 increased radiation releases. So these are site 8 specific and unique circumstances. So we've satisfied 9 the third criterion.
10 The fourth is a waiver of the regulation 11 is necessary to reach a significant safety problem.
12 Well, it is a significant safety problem if you have 13 a facility in a densely populated community that is 14 killing its community because it's not operating 15 safely, not to do that.
16 So we've -- and that is what we are 17 asserting here. And then finally we needed to 18 establish that the petition that we meet -- that we 19 have presented unusual and compelling circumstances.
20 I don't believe it's possible to read Mr. Mangano's 21 declaration, Dr. Caldicott's declaration, Mr.
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745 1 which has been totally disregarded and we believe even 2 falsely presented by the applicant in this case. So 3 we believe we have adequately presented what we needed 4 to, to satisfy the requirements for a waiver of the 5 rule and that therefore, our contention should be 6 admitted in these proceedings.
7 CHAIRMAN McDADE: Okay, thank you.
8 MS. BURTON: Thank you.
9 CHAIRMAN McDADE: Does the NRC staff have 10 anything further on the admissibility of the 11 contention submitted by the Connecticut residents?
12 MR. TURK: No, your Honor.
13 CHAIRMAN McDADE: Anything further with 14 regard to the applicability of the waiver provisions 15 under 2.335?
16 MR. TURK: I would note one thing. I 17 believe you asked Ms. Sutton whether Entergy's 18 position is that 2.802 is the proper procedure and she 19 agreed that that would be the way to address the 20 adequacy of the GEIS. I would join in that but I 21 would also note that if CRORIP had made out a good 22 waiver position then 2.335 would have provided them an 23 avenue here but they have not made out that case.
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746 1 that the purposes of the regulation would not be 2 served as opposed to saying that the regulation itself 3 is wrong or deficient.
4 MR. TURK: That's correct.
5 CHAIRMAN McDADE: Okay, from the 6 standpoint of Entergy, do you have anything further 7 with regard to the admissibility of the contention 8 proffered by Connecticut Residents?
9 MS. SUTTON: Just very shortly, the 10 Applicant has made no false presentations as Ms.
11 Burton has attested to and furthermore, with respect 12 to the third factor in the Millstone case, petitioners 13 have not, in any way, demonstrated any facts, again 14 contrary to Ms. Burton's statements, that Entergy has 15 any way exceeded regulatory standards and moreover, 16 its arguments are, in fact, quote "common to a large 17 class of facilities" as is further supported in our 18 pleadings.
19 CHAIRMAN McDADE: Do you have anything 20 further with regard to the applicability of the waiver 21 provisions?
22 MS. SUTTON: No, your Honor, it's not 23 applicable here.
24 CHAIRMAN McDADE: We have no further 25 questions. We would at this point then, terminate NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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747 1 this proceeding here. We've got some other 2 proceedings at least tentatively scheduled and some 3 matters for the litigants to get back in touch with us 4 on next week. Again, I want to thank everybody who's 5 made presentations here today. I appreciate the 6 professionalism. They have been very helpful to us in 7 the decisions we are going to have to make.
8 Again, thank you for bearing with us as 9 we've been trying to work through this and clarify in 10 our own minds the issues. This proceeding is now 11 terminated. Thank you.
12 (Whereupon, at 3:36 p.m. the hearing in 13 the above-entitled matter concluded.)
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