ML11346A011
| ML11346A011 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 12/06/2011 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, NRC-1336, RAS E-586 | |
| Download: ML11346A011 (69) | |
Text
,9-s' Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Entergy Nuclear Operations Indian Point Nuclear Generating Plant Docket Number: 50-247-LR and 50-286-LR DOCKETED ASLBP Number: 07-858-03-LR-BDO1 December 9, 2011 (8:30 a.m.)
OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF Location: (teleconference)
Date: Tuesday, December 6, 2011 Work Order No.: NRC-1336 Pages 987-1053 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433 ZQSO07ý
987 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3
4 ATOMIC SAFETY AND LICENSING BOARD PANEL 5
6 PRE-HEARING CONFERENCE 7 --------------------- x 8 IN THE MATTER OF:
9 ENTERGY NUCLEAR Docket Nos. 50-247-LR 10 OPERATIONS, INC. and 50-286-LR 11 (Indian Point Nuclear ASLBP No.
12 Generating Units 2 and 3): 07-858-03-LR-BD01 13 --------------------- x 14 Tuesday, December 6, 2011 15 16 The above-entitled matter came on for 17 pre-hearing conference, pursuant to notice, at 18 1:30 p.m Eastern Standard Time via teleconference.
19 BEFORE:
20 LAWRENCE G. McDADE, Chairman 21 DR. KAYE D. LATHROP, Administrative Judge 22 RICHARD E. WARDWELL, Administrative Judge 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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988 1 APPEARANCES:
2 On Behalf of NRC:
3 SHERWIN TURK, ESQ.
4 DAVID ROTH, ESQ.
5 BRIAN HARRIS, ESQ.
6 of: Office of the General Counsel 7 Mail Stop - 0-15 D21 8 U.S. Nuclear Regulatory Commission 9 Washington, DC 20555-001 10 11 On Behalf of Entergy Nuclear Operations, Inc.:
12 PAUL BESSETTE, ESQ.
13 KATHRYN SUTTON, ESQ.
14 BILL GLEW, ESQ.
15 MARTIN O'NEILL, ESQ.
16 of: Morgan, Lewis & Bockius 17 1111 Pennsylvania Avenue, N.W.
18 Washington, DC 20004 19 On Behalf of Riverkeeper:
20 PHILLIP MUSEGAAS, ESQ.
21 DEBORAH BRANCATO, ESQ.
22 Riverkeeper 23 20 Secor Avenue 24 Ossining, NY 10562 25 1-800-217-4837 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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989 1 On Behalf of the state of New York:
2 JOHN SIPOS, ESQ.
3 JOAN MATTHEWS, ESQ.
4 LISA BURIANEK, ESQ.
5 Office of the Attorney General 6 The Capital 7 State Street 8 Albany, NY 12224 9
10 JANICE DEAN, ESQ.
11 Assistant Attorney General 12 Office of the Attorney General 13 of the state of New York 14 120 Broadway, 2 6 th Floor 15 New York, NY 10271 16 17 On Behalf of Westchester County:
18 MELISSA-JEAN ROTINI, ESQ.
19 Assistant County Attorney 20 Office of Robert F. Meehan 21 Westchester County Attorney 22 148 Martine Avenue, 6 th Floor 23 White Plains, NY 10601 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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990 1 On Behalf of the Town of Cortland:
2 VICTORIA SHIAH, ESQ.
3 Council for Town of Cortland 4 Sive, Paget & Riesel, PC 5 460 Park Avenue 6 New York, NY 10022 7
8 On Behalf of Clearwater:
9 Manna Jo Greene 10 Karla Raimundi 11 Hudson River Sloop Clearwater, Inc.
12 724 Wolcott Ave.
13 Beacon, NY 12508 14 15 On Behalf of the state of Connecticut:
16 ROBERT D. SNOOK, ESQ.
17 Assistant Attorney General 18 Office of the Attorney General 19 State of Connecticut 20 55 Elm Street 21 P.O. Box 120 22 Hartford, CT 06141-0120 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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991 1 P-R-O-C-E-E-D-I-N-G-S 2 (1:35 p.m.)
3 JUDGE McDADE: We are here in the matter 4 of Entergy Nuclear Operations, Indian Point Nuclear 5 Generating Units 2 and 3, Docket Number 50-247-LR 6 and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1.
7 We are here at a status conference to go 8 over a few matters I want to run through, and then 9 we will ask the parties whether or not there are any 10 other matters that they believe should be addressed 11 at this particular point in time.
12 First has to do with the new contention 13 that was most recently introduced, New York 38. The 14 question is to Entergy and the staff. First, to the 15 NRC staff, what is the status on the mandatory 16 disclosures with regard to New York 38? Have they 17 been completed? And, if not, Mr. Turk, when do you 18 anticipate they would be?
19 MR. TURK: Your Honor, the staff does 20 its disclosures differently from other parties.
21 JUDGE McDADE: We understand.
22 MR. TURK: We disclose documents related 23 to the application whether there's a pending 24 contention or not. So any documents that we would 25 have related to commitments from the applicant, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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992 1 which is the subject of Contention 38, would be 2 disclosed along with all of our other documents on a 3 routine basis as the proceeding progresses.
4 JUDGE McDADE: So what you're stating is 5 that you have no additional documents based on New 6 York 38, that in your view the disclosures necessary 7 by the staff have been made.
8 MR. TURK: Yes.
9 JUDGE McDADE: Okay. From Entergy?
10 MR. BESSETTE: Yes, Your Honor. This is 11 Paul Bessette. As I have discussed with Mr. Sipos 12 and Mr. Musegaas, because the admitted contention 13 relates to a large part to issues addressed in the 14 SER supplement and RAIs, we have already disclosed 15 numerous documents related to those contentions.
16 To the extent there are any new and 17 additional documents, particularly as to the 18 admitted contention, our disclosures are due 19 tomorrow, and there will be I think about 10 to 15 20 new documents on those, although many of them will 21 be just references.
22 We want to emphasize, though, that, you 23 know, because this is an operating plant and 24 programs are ongoing, and we are approaching the 25 period of extended operation, we will continue to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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993 1 implement programs and, you know, update procedures, 2 both on a site-wide and fleet basis.
3 So we just want to emphasize that there 4 is an ongoing -- there may be ongoing documents.
5 But to the extent we believe there are any new 6 documents, they will be disclosed tomorrow.
7 JUDGE McDADE: Okay. And with regard to 8 those documents, you said probably 10 to 15 9 documents. Can you give us an idea of the volume 10 involved? Can you give me the number of pages?
11 MR. BESSETTE: Yes. You mean, a 12 document could be one page or a thousand pages. I 13 need to confer with my colleagues. One second, Your 14 Honor.
15 JUDGE McDADE: Okay.
16 (Pause.)
17 MR. BESSETTE: Your Honor, they vary.
18 Some of the documents are not necessarily Entergy 19 documents. They may be industry references like 20 EPRI reports, and some of those are long. But, 21 again, those tend to be industry references, not 22 necessarily Enterty references.
23 JUDGE McDADE: Okay. What I'm trying to 24 do is the next question has to do with the 25 submission of the direct testimony, and I'm trying NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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994 1 to get an idea -- let me ask New York, do you 2 anticipate filing your direct testimony and 3 statement of position with regard to New York 38 on 4 December 22nd with the rest, or do you need to see 5 these documents and review them before you can make 6 a commitment?
7 MR. SIPOS: Judge, this is John Sipos 8 for the state of New York. It would be the latter.
9 The state of New York respectfully requests the 10 opportunity to review these documents that Entergy 11 has alluded to producing tomorrow, and oftentimes 12 documents such as EPRI reports are, as Mr. Bessette 13 correctly pointed out, can be lengthy and can have a 14 fair amount of detail in them.
15 We would also, you know, be able to --
16 we would -- the state wishes to be able to review 17 those in a, you know, comprehensive and systematic 18 order. So we would respectfully request that -- and 19 suggest that New York 38/Riverkeeper 5, could not be 20 prepared for the 22nd of December.
21 I also have -- I would like to respond, 22 if I might, Your Honor, to a question that the Court 23 asked NRC staff counsel regarding mandatory 24 disclosures. The state is concerned about the scope 25 of staff's disclosures in -- as a general matter, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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995 1 and -- but with respect to corrosion and primary 2 water stress corrosion cracking, there have been 3 some documents that the state actually has located 4 on ADAMS recently concerning that phenomena. But 5 those documents have not been produced or disclosed 6 or designated by the staff.
7 There was a conference in India last 8 month discussing corrosion, and there was also some 9 PowerPoints from a month or two ago. We provided 10 the -- well, the state has disclosed those 11 documents, but it does -- the state does have some 12 concerns about what the staff understands to be the 13 scope of its discovery obligations, and the state 14 would respectfully suggest that the discovery is 15 broader than a conversation in our RAI documents or 16 responses to RAIs between the applicant and the 17 regulatory staff, that it would go to underlying 18 documents that may have provided the impetus to 19 start that discussion, such as perhaps the EPRI 20 reports or other documents from the industry or 21 industry operating experience. And so I would just 22 like to note that for the record.
23 JUDGE McDADE: Okay. Well, let me note 24 something for the record as well. I mean, the issue 25 right now, we are rapidly getting to the point wherE NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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996 1 we are going to be moving ahead towards a resolution 2 of this matter. What we need to do is to resolve 3 all of the pieces, so things don't get delayed.
4 There is nothing for the Board with 5 regard to New York 38/Riverkeeper 5, to do at the 6 moment. What I would direct is that New York and 7 Riverkeeper get together with the NRC staff to 8 discuss promptly what -- and to see if you can reach 9 a meeting of the minds with regard to the scope of 10 the mandatory disclosures.
11 If there is a difference of opinion --
12 in other words, if the staff believes that documents 13 are not properly disclosed -- should not be properly 14 disclosed, or need not be disclosed, and New York 15 and Riverkeeper disagree, then it would be necessary 16 for New York and Riverkeeper -- New York or 17 Riverkeeper or the two jointly -- to file a motion 18 to compel in order that we would then have something 19 in front of us that we could rule on as to the 20 appropriate -- whether or not all of the appropriate 21 disclosures have been made.
22 And, you know, again, given the time, we 23 would urge you to do that as quickly as possible, 24 and specifically in order to make the word "quickly" 25 have, you know, some sort of specifics, would ask NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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997 1 that within a week from today, if you anticipate a 2 motion to compel will be necessary for you to notify 3 the Board of that, and to also notify the Board as 4 to a reasonable date when that motion to compel 5 could be filed.
6 T realize that it may take a while to 7 have these discussions, but specifically they are 8 going to happen over the next week, that in the 9 event a motion to compel is necessary, it may take a 10 little time to put that together.
11 And I'm sure, based on our previous 12 experience, that any request for a period of time 13 will be reasonable. But what we would want is, in a 14 week -- you know, a week from today to be notified 15 whether you anticipate a motion to compel will be 16 necessary, and, if so, a suggested date by which 17 that could be submitted.
18 Mr. Sipos, is that agreeable?
19 MR. SIPOS: It is, Judge. We always 20 endeavor to follow the Court's directives. I will 21 note that it's coming at a time of intense resource 22 allocation, given other deadlines. But if that is 23 the Court's directive, we will move forward and 24 engage in those discussions with Mr. Turk and NRC 25 staff.
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998 1 We have -- the first time -- well, 2 following the November 30 disclosure, in fact that 3 night that we got it from NRC, I wrote Mr. Turk a 4 letter and said it seemed that there was an issue 5 about scope, because we had identified -- in fact, 6 we had disclosed four documents I believe that went 7 to primary water stress corrosion cracking and other 8 related issues, and hadn't seen anything in response 9 or other documents from staff.
10 And, again, this is outside of the RAI -
11 - RAI communication process. It is what we would 12 understand -- the state understands to be included 13 in the concept of relevancy. It's not just the mere 14 dialogue between the applicant and the regulator.
15 JUDGE McDADE: No. I understand, and I 16 also understand that obviously New York 38/
17 Riverkeeper 5 are going to be on a different 18 schedule than the rest. But what we anticipate is 19 that it will be done in an expedited manner, so that 20 before we get to a hearing it will be able to catch 21 up with the rest and hopefully be able to proceed to 22 the hearing on all of the contentions 23 simultaneously, if at all possible. And what we are 24 directing is just simply that there will be 25 discussions over the next week.
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999 1 And from the standpoint of Riverkeeper, 2 is that a problem? Do you need more time? Are you 3 available?
4 MR. MUSEGAAS: We are available, Judge, 5 to work with the Attorney General and the NRC staff, 6 yes.
7 JUDGE McDADE: Okay. Who is going to be 8 taking the lead on this? New York or Riverkeeper?
9 MR. MUSEGAAS: It -- go ahead, Mr.
10 Sipos.
11 MR. SIPOS: Well, I --
12 JUDGE McDADE: Apparently -- this is 13 Judge McDade again. Apparently, that hasn't been 14 decided between the parties yet. But within the 15 week, please let us know as well who is going to be 16 taking the lead with regard to New York 38 in 17 addition to whether or not you anticipate it will be 18 necessary to have a motion to compel.
19 Likewise, if you are making progress, 20 you know, I don't want to precipitate a motion to 21 compel, if you are making progress at reaching a 22 resolution as to the appropriate scope of the 23 document production by the NRC staff. But we do 24 want a report back no later than close of business 25 next Tuesday.
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1000 1 Anything else with regard to New York 38 2 from New York or Riverkeeper?
3 MR. MUSEGAAS: Not from Riverkeeper, 4 Your Honor. Thank you.
5 JUDGE McDADE: From the NRC staff, Mr.
6 Turk?
7 MR. TURK: Yes, one point, Your Honor.
8 We are not prepared to discuss the issue raised by 9 Mr. Sipos today. It was not on his list of issues 10 that he wished to discuss in this conference call.
11 But I would note that the staff's disclosures have 12 been in conformance with standard staff disclosure 13 practices.
14 The documents that Mr. Sipos is taking 15 about actually are disclosed in ADAMS. In fact, he 16 cited the ADAMS numbers where he obtained, 17 apparently, these documents. And he -- his 18 discussion reflects a fundamental misunderstanding 19 of staff's disclosure obligations.
20 We have a communication with Mr. Sipos 21 two years ago, almost to the date, about the very 22 same issue, and we thought the matter was resolved 23 two years ago. So he is raising an issue that he 24 could have raised long ago with you and failed to, 25 but we will be happy to talk to New York state or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1001 1 Riverkeeper or both about staff disclosure 2 obligations.
3 JUDGE McDADE: And, again, from our 4 standpoint, all we need to know is, within a week, 5 whether or not there is anything that the Board 6 needs to do with regard to this. It may be that the 7 staff is correct in the scope. It may be that Ne C
8 York is correct. We don't know. We are not part f 9 it at this point in time. See if you can work it 10 out. And if you can't work it out, then, you kno W, 11 the next step would be a motion to compel by the 12 party that wants the documents.
13 Okay. Entergy, I take it you have no 14 dog in that fight one way or the other, correct?
15 MR. BESSETTE: No, Your Honor. But I 16 think it's an appropriate time just to raise one 17 question with regard to the order Your Honors issued 18 a few minutes ago on the motion for clarification 19 with regard to the scope of that contention. Would 20 that be appropriate to ask a question right now?
21 JUDGE McDADE: Sure.
22 MR. BESSETTE: I understand -- we have 23 read the order quickly, and I understand Your Honor 24 has determined that the contention is, you know, as 25 you have defined, broadly admitted. But we just NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1002 1 want to -- for purposes of mandatory disclosures, we 2 wanted to confirm, though, that it is still bounded 3 by the issues raised in the SER supplement, which 4 was the impetus for the original contention.
5 I assume that's correct, because that 6 was the basis, the whole originating point, and any 7 new commitments described in that FSER. So I just 8 want to make sure we are bounded by that, so we all 9 have a common understanding on how to meet our 10 mandatory disclosures going forawrd.
11 JUDGE McDADE: Okay. I am little bit 12 reluctant to give an answer off the top of my head.
13 My first reaction is to respond affirmatively to 14 what you have just said, Mr. Bessette.
15 But, you know, what we did want to make 16 clear is that it's not limited solely to Commitment 17 41, that they alleged and we admitted a broad 18 contention, that they offered multiple bases in 19 support of that contention, but that from our 20 standpoint we are not limiting them solely to a 21 challenge to Commitment 41, but, rather looking, you 22 know, broader with regard to the aging management 23 plans relating to the steam generators.
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1003 1 to see if anything else needs to be furnished to New 2 York state, again, to have any discussions with New 3 York state based on the scope of those disclosures 4 and the needed disclosures within the next week.
5 And when New York reports back to us 6 with regard to their discussions with the staff, 7 they can report back with regards to their 8 discussions with Entergy to see whether or not there 9 is a meeting of the minds, or, alternatively, there 10 will be a motion to compel filed by New York or 11 Riverkeeper or both.
12 MR. BESSETTE: Thank you, Your Honor.
13 And I think, as hopefully Mr. Sipos and Mr. Musegaas 14 would recognize, we have tried to stay out of the 15 motion to compel and work cooperatively. So based 16 on that clarification, we will address any further 17 questions they may have.
18 JUDGE McDADE: Okay. The next item I 19 wanted to raise had to do with the, you know, bio-20 opinion that Marine Fisheries has come out with.
21 But before we do that, I wanted to take just a 22 moment to discuss a quick matter with my colleagues.
23 We are going to put you on mute, and we will be back 24 in just a moment.
25 (Whereupon, the proceedings in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1004 1 foregoing matter went off the record at 2 1:53 p.m. and went back on the record at 3 1:54 p.m.)
4 JUDGE McDADE: Okay. An issue raised --
5 this is Judge McDade again. An issue raised by my 6 colleagues that I missed -- and one of the issues --
7 the direct testimony is due on December 22nd. As we 8 have already discussed, the direct testimony for New 9 York 38/Riverkeeper 5 is not going to be due on 10 December 22nd.
11 Based on our earlier discussion, the 12 state indicated that it wants to see the new 13 documents that are going to be disclosed tomorrow.
14 There also will be an issue with regard to 15 disclosures coming from the staff.
16 Mr. Sipos, what I would ask is this: if 17 you are able to now, please do so. And if not, when 18 you report back to us in a week, notify us your 19 projected date of when the staff would be prepared 20 to move forward with the direct testimony and the 21 statement of position with regard to New York 38.
22 Can you give any kind of an estimate at 23 this point?
24 MR. SIPOS: I can't right now, and I --
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1005 1 to notify you when the state would be ready to move 2 forward with its direct testimony. I am unable to 3 do that today, but I will do my best to provide that 4 information promptly.
5 One -- I guess there is two -- at least 6 two factors that I will need to review. One is the 7 -- what I would generally refer to as the discovery 8 matters that we have just discussed, but also 9 arrangements for expert assistance as well. And I 10 will endeavor to report back to Your Honors next 11 Tuesday. Is that -- was that your directive, next 12 Tuesday?
13 JUDGE McDADE: Yes. And, obviously, in 14 the event that you believe motions to compel are 15 going to be necessary, that will -- those would need 16 to be resolved before the direct testimony on 38/5 17 is due.
18 But hopefully you will be able to 19 resolve your issues with regard to the scope of 20 disclosures and either tell us next Tuesday, "Yes, 21 we are now in a position, we have reviewed the 22 documents, and we believe that we would be able to 23 proceed with the testimony by X," so that we would 24 then be able to review the reasonableness of that, 25 or, if not, report to us that you aren't able and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1006 1 advise us of what needs to happen in the interim 2 before you would be in a position to advise us of 3 when that testimony could be filed.
4 MR. SIPOS: Yes, Your Honor.
5 JUDGE McDADE: And, again, I'm saying 6 this to you, Mr. Sipos -- and I realize with regard 7 to who is going to take the lead in that, you or 8 Riverkeeper, you know, at this point we really --
9 you know, it could be either of you.
10 MR. SIPOS: Yes, thank you, Your Honor.
11 That's understood. Thanks.
12 JUDGE McDADE: Okay. Now, a question 13 arose with regard to a review by the ACRS. Now --
14 and with regard to the scope of that review and the 15 impact of it. From the standpoint of, first, the 16 NRC staff, do you, Mr. Turk -- does the NRC staff 17 believe there is any reason for anything to be 18 delayed pending the ACRS review?
19 MR. TURK: There is no pending ACRS 20 review, Your Honor. The ACRS completed its review 21 of the staff's SER and has indicated to the staff 22 that they do not seek to review the SER supplement.
23 The email that was made public has to do 24 with an ACRS request that they be kept up to date on 25 what is happening with the application. And I don't NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1007 1 know that anything further will be done with that, 2 but it is not an ACRS review. It's really more in 3 the nature of a request for status reports. So 4 there is no ACRS review contemplated.
5 JUDGE McDADE: Okay. Thank you, Mr.
6 Turk.
7 MR. SIPOS: Your Honor, this is John 8 Sipos. If I may, and perhaps I'm interrupting --
9 JUDGE McDADE: No, go right ahead.
10 MR. SIPOS: The state saw that email, 11 and I'm sure -- I think it was between at least one 12 NRC person, perhaps two, and possibly Entergy or 13 maybe it went on to Entergy management. And the 14 ACRS, by our reading -- perhaps we're wrong -- said 15 that there would not be, you know, an imminent, 16 specific meeting, you know, following the SSER from 17 late August.
18 But the email is pretty clear. It says, 19 "But there is a catch," and they want to come back 20 and discuss, you know, all that is going on at the 21 plant. And if there is going to be such a review, 22 the state is not -- the state would like to be kept 23 apprised of that, and understand when it is and what 24 its schedule is going to be.
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1008 1 was, you know, carte blanche. It was perhaps, 2 "Let's look at many Indian Point issues at one 3 time," which would include license renewal.
4 MR. TURK: Again, Mr. Sipos 5 misunderstands the communication that he is 6 referring to. I have given a correct summary of it.
7 He is simply wrong.
8 JUDGE McDADE: Okay. Well, at this 9 point in time, you know, basically it falls in this 10 category. The Board does not intend, at this point, 11 to delay our proceedings pending anything further 12 from the ACRS.
13 In the event that New York or any of the 14 other parties to this proceeding felt that a delay 15 pending further review by the ACRS would be 16 appropriate, it would be necessary to promptly file 17 a motion outlining, you know, what you want and why.
18 And at that point, the Board would then be in a 19 position to rule on it.
20 But at this point in time, you know, 21 based on the, you know, representations of Mr. Turk, 22 and also based on, you know, just the face of the 23 email itself, it doesn't appear that there is 24 anything that would be coming down the road from the 25 ACRS that potentially could impact our decision in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1009 1 this matter.
2 We are going to be reviewing the 3 testimony where, you know, these contentions are 4 directly addressed by the parties, and the 5 interested government entities, and what, if 6 anything, the ACRS might do doesn't seem that it 7 would impact our decision.
8 But in the event that New York or any of 9 the other parties or any of the interested 10 government entities believe that there was some 11 reason to delay, it would be necessary for you to 12 promptly file a motion for that. And when we saw 13 the pleadings, we would be in a position to rule on 14 it.
15 Okay. Next is -- I started to talk 16 about the Marine Fisheries bio-opinion having to do 17 with Riverkeeper EC8. We were notified that the 18 staff anticipated that there would be a supplemental 19 final EIS that would be issued in May.
20 What we would like to get, Mr. Turk, is 21 your view and the staff's view on what the scope of 22 that supplement is going to be. Is it limited 23 exclusively to the impact of the Marine Fisheries 24 report? Is it broader than that? What is the scope 25 of it?
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1010 1 MR. TURK: But Your Honor, the staff 2 anticipates filing a supplemental SEIS, which would 3 address the NMFS Biological Opinion, as well as some 4 other aquatic impact information that the staff 5 receives.
6 So the scope of the supplement is 7 limited to aquatic impacts. That includes 8 entrainment, impingement and thermal impacts, and it 9 affects the endangered or threatened species, which 10 are the subject of the NMFS Biological Opinion.
11 Nothing beyond aquatic impacts would be addressed.
12 JUDGE McDADE: Okay, and is it the 13 staff's position that there are no other 14 contentions, other than Riverkeeper Environmental 15 Contention 8, that could be potentially impacted by 16 it? Mr. Turk.
17 MR. TURK: Yes. No other contentions, 18 apart from ESA. The ESA contention would be 19 affected.
20 JUDGE McDADE: Okay. In your letter, it 21 described this as a draft. Does the staff have a 22 view as to when the final? I know you're going to 23 have a comment period, but when would the final 24 supplement be completed? Can you give us a good 25 estimate?
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l011 1 JUDGE McDADE: I can't give you a very 2 clear estimate. I know that in general, the time of 3 about six to seven months from the time a draft is 4 published until a final goes out. But it all 5 depends on the scope and number of comments that we 6 receive on the draft, because the staff will address 7 those comments in its final SEIS.
8 So I would say minimum six to seven 9 months, possibly more, depending on the scope and 10 number of comments.
11 JUDGE McDADE: Okay. What is the 12 staff's view as to whether or not we would be able 13 to proceed to a hearing on Riverkeeper Environmental 14 Contention 8 prior to the publication of the final 15 supplement?
16 MR. TURK: Your Honor, we were prepared 17 to file testimony on the existing contention, 18 knowing that it's not really a factual contention.
19 It essentially alleges that the staff issued an 20 FSEIS before the NMFS Biological Opinion came out.
21 Well, so much is true. But now the staff has 22 indicated that we're going to be addressing the NMFS 23 Biological Opinion in a supplement to the FSEIS.
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1012 1 issuance, and where is the staff now. I personally 2 feel that the contentions could just be set aside or 3 even dismissed as moot, because we are agreeing with 4 Riverkeeper, that the NMFS Biological Opinion should 5 be addressed.
6 JUDGE McDADE: Okay. The next question, 7 then, would be given where we are in the hearing, 8 even if Riverkeeper were to agree with you that 9 their current contention is moot, I assume 10 Riverkeeper would be of the view that unless and 11 until they have an opportunity to review the EIS 12 draft that's coming down, that they would not be in 13 a position to determine whether or not their 14 interest here has been satisfied, or whether or not, 15 based on the staff action, they would need to file a 16 new or amended contention?
17 Let me go to Riverkeeper and ask, what 18 is your view with regard to Riverkeeper EC 8? Do 19 you believe, at this point, that it needs to be 20 severed and held in abeyance until the publication 21 of the draft supplement?
22 MR. MUSEGAAS: This is Philip Musegaas, 23 Your Honor. In essence yes, we do. We believe the 24 most appropriate thing to do, given the scope of our 25 contention and this news about issuing a supplement, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1013 1 that it would be most appropriate to hold the 2 contention in abeyance until the issuance of the 3 supplement, and that would give us an opportunity, 4 which we think is entirely within our rights and 5 within the scope of the contention, to review the 6 supplement and then if necessary, amend or revise 7 the contention as necessary, or immediately proceed 8 with, you know, with filing testimony on the 9 contention as it stands.
10 But we don't think it's appropriate to 11 go forward at this time, given the fact that at 12 least a portion of our -- that the remedy we were 13 seeking with filing a contention was the issuance of 14 a supplement.
15 If I may, Your Honor, we also are 16 concerned about how the issuance of the supplement 17 may implicate Riverkeeper EC 3. We did, I believe, 18 discuss this briefly with Entergy counsel and NRC 19 counsel over the last couple of days. I won't speak 20 for them. I think they see this differently. But 21 from Riverkeeper's perspective, we do think it may 22 be appropriate to hold that contention in abeyance 23 as well, because it does implicate the impacts of --
24 it does implicate aquatic impacts in a broad sense, 25 and it does implicate the impact of radiological NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1014 1 water leaks on the Hudson River ecosystem.
2 This issue was mentioned to some degree 3 in the Biological Opinion, and to the extent that 4 the staff is going to be reviewing the Biological 5 Opinion over the next six months, and subsequently 6 issuing a new supplement, we don't know the nature 7 of that review. We think it would be appropriate to 8 hold EC 3 in abeyance as well, pending our ability 9 to review the content of the supplement.
10 JUDGE McDADE: As I understood it, EC 8 11 basically was a contention of omission, but that EC 12 3 was really not. Based on the representations of 13 Mr. Turk, that the draft supplement is going to be, 14 the scope of it is going to be limited, as he 15 described it, what I don't want to do is to delay EC 16 3 if we can get ahold of it at this point in time.
17 Obviously, if down the road the draft 18 supplement were issued, and it turned out that 19 after, you know, further review, the scope of it 20 expanded beyond what Mr. Turk said, it might be 21 necessary to rethink and allow additional testimony 22 with regard to EC 3.
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1015 1 that is going to be so fundamentally changed that it 2 becomes pretty much irrelevant, you know. But 3 that's why I started the question out with, to the 4 staff, as far as the anticipated scope of the draft 5 supplement that will be coming out hopefully in May.
6 Let me ask first of the staff and then 7 of Entergy, what is your view with regard to the 8 possible impact on EC 3, Riverkeeper Environmental 9 Contention 3, of this draft supplement and whether 10 or not it would be appropriate for us to delay the 11 receipt of direct testimony on that. First, Mr.
12 Turk.
13 MR. TURK: Your Honor, Mr. Musegaas, Mr.
14 Philip, if he said that he's had discussions with 15 NRC staff about potential impacts on EC 3, I'm not 16 aware of any conversations with Mr. Musegaas or any 17 other party about how the FSEIS Supplement might 18 affect that contention.
19 We don't see any impact. We do not 20 intend to address radiological impact in the FSEIS 21 Supplement. As I mentioned, we're looking at 22 entrainment, impingement and thermal impacts, 23 including impacts to endangered species. We're not 24 looking at radiological impacts or, more 25 specifically, we're not looking at leaks from the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1016 1 spent fuel pool or elsewhere on the site into the 2 Hudson River, as affected by the FSEIS Supplement.
3 JUDGE McDADE: Okay. Mr. Bessette, 4 anything from Entergy on this issue?
5 MR. BESSETTE: Your Honor, we did speak 6 with Mr. Musegaas yesterday, I believe, or the day 7 before, and we voiced our opinion similar to what 8 Mr. Turk said, that we know of no -- there's no, we 9 know of no information that's to be included in the 10 FSEIS Supplement related to radiological impacts.
11 We know of no additional information that's pending 12 review.
13 So we would strongly urge the parties to 14 file, the follow the Board's direction and maintain 15 the current schedule, and then to the extent there 16 is new information, although we don't expect it in 17 the FSEIS Supplement, the parties can seek leave to 18 supplement their testimony at that point.
19 JUDGE McDADE: Okay. Let me put you on 20 mute for just a second. Excuse me. Judge Wardwell 21 has a question before we go on.
22 JUDGE WARDWELL: This is for 23 Riverkeeper. Even if it did impact it to some 24 degree, it being the supplemental FEIS, how would 25 you characterize the relative impact on EC 3? Would NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1017 1 it be minor or a major impact, such that we couldn't 2 go ahead with the heart of that contention, 3 recognizing that there may be some chance that it 4 has to be modified slightly, based on the 5 supplemental FEIS?
6 MR. MUSEGAAS: Your Honor, I'm frankly 7 reluctant to speculate on what level of impact. It 8 is an element of our, of Contention EC 3 has to do 9 with radiological impacts on aquatic species.
10 So, you know, based on the limited 11 information we have and the apparent assurances from 12 NRC staff that the supplement will not address this 13 issue, you know, with all due respect, I think 14 Riverkeeper, it would not be prejudicing the parties 15 overly much to give Riverkeeper the right to review 16 the supplemental EIS and make that determination.
17 We are just, to be perfectly clear, 18 we're very intent on moving forward with the hearing 19 and the testimony. We're not seeking to do this to 20 cause any sort of delay. We are simply doing this 21 to make sure that we reserve our rights and frankly, 22 with limited resources, are able to put forth the 23 best testimony available.
24 So given the fact that this, you know, 25 in addition to EC 8, that EC 3 is the only other NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1018 1 contention in this proceeding that really overlaps 2 to some degree, and it is not -- it is not a 3 majority of the contention. But it is an element of 4 the contention that deals with radiological impacts, 5 and that overlaps with the Biological Opinion.
6 So my short answer to you is it is 7 difficult to speculate. It potentially could be, 8 could require us to revise the Contention or revise 9 our testimony. So again, balancing, you know, the 10 inconvenience and the prejudice or the delay to the 11 rest of the parties and to the Board, we don't see 12 that as significant, and we considered that in 13 asking for this release.
14 JUDGE McDADE: This is Judge McDade 15 again, and based on the representations of the 16 staff, that they do not anticipate at this point 17 that the draft is in any way going to address 18 radiological impact, I would anticipate that we will 19 then go forward with the testimony.
20 With regard to Riverkeeper Environmental 21 Contention 8, it will be held in abeyance, that you 22 need not file any direct testimony or statement of 23 position with regard to that. It will be revisited 24 after the draft supplement is issued.
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1019 1 with the schedule, the December 22nd schedule, and 2 in the event that the anticipated scope of the draft 3 supplement expands, we will then address that at the 4 time, to see whether or not there needs either to be 5 a modification of Contention 3 and the testimony 6 with regard to it, or a, some way to wrap that into 7 EC 8 or a newer, amended contention later on.
8 MR. TURK: May I? This is Sherwin. May 9 I add one thing to my previous comment?
10 JUDGE McDADE: Yes, Mr. Turk.
11 MR. TURK: In Mr. Musegaas' last set of 12 remarks just before Your Honor spoke, he mentioned 13 the NMFS Biological Opinion. The NMFS Biological 14 Opinion, as I recall, does have some information 15 about radiological impacts. It's nothing new, and I 16 think NMFS has concluded, and forgive me; I don't 17 have the documents in front of me.
18 But they concluded that samples of fish 19 tissue indicated that there was no significant 20 radiological impact due to plant operations. So to 21 the extent that the NMFS Biological Opinion 22 addresses that issue, that will be reflected in the 23 staff's adoption, or what I expect will be the 24 staff's adoption of NMFS' Biological Opinion.
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1020 1 misunderstanding. It's possible that because NMFS 2 addressed radiological impacts, that that will be 3 reflected in the supplement. However, the basis for 4 anything the staff would say is right there in front 5 of Riverkeeper at this time. They have the NMFS 6 Biological Opinion.
7 The intention of the staff's supplement 8 is not to change the findings on radiological 9 impacts, but rather to reflect what NMFS has done, 10 and to reflect other new information the staff has 11 received regarding entrainment, impingement and 12 thermal impact.
13 MR. MUSEGAAS: But Your Honor, if I may, 14 I don't -- one, I don't think this is the 15 appropriate forum to argue the merits of some of 16 this factual information, and also it's, you know, 17 it is mentioned in the Biological Opinion. I think 18 again, given -- despite Mr. Turk's assurances that 19 the staff is going to conduct a limited review and 20 issue a supplement that addresses the Biological 21 Opinion, you know, I think that Riverkeeper has the 22 right to review what that supplement says, and you 23 know, not have to rely one, on the General Counsel's 24 assertions about it and also about what it says 25 about broader aquatic impacts.
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1021 1 So I just -- again, I don't think this 2 is -- I don't think we need to have an extended 3 discussion on this. Your Honor has made the ruling 4 and Riverkeeper will file testimony on the 22nd.
5 JUDGE McDADE: And in the event, when 6 the draft EIS comes out, in the event that you 7 believe that there needs either to be an expansion 8 of 8 or a modification of 3, we would review that at 9 the time. The next question then has to do --
10 MR. SIPOS: Your Honor, sorry. This is 11 John Sipos. Please forgive me for interrupting, but 12 may I just make an observation?
13 JUDGE McDADE: Yes.
14 MR. SIPOS: Just for the records, it 15 seems to me that what staff is proposing to do here 16 with the supplement to the EIS is perhaps broader 17 than initially I understood and perhaps others.
18 It seems that today, Mr. Turk has made 19 clear that it will include not only impacts on 20 endangered species, but I think he also mentioned 21 impacts on other species or other aquatic resources, 22 and also mentioned entrainment, impingement and 23 thermal.
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1022 1 become available at the plant. I think, from my 2 perspective, I would just like to note that for the 3 record. It seems that that there are three possible 4 technologies that I understand are on the table.
5 One is what exists now, which is the 6 once-through system. There's another thing that has 7 been discussed called the wedge-wire screens, and 8 then third, there is also the closed-cycle cooling 9 option or possible cooling towers. So I guess my 10 sense, from hearing what Mr. Turk said, is that this 11 SEIS Supplement may be broader than just what the 12 National Marine Fisheries Service discussed with NRC 13 staff.
14 JUDGE McDADE: But one of the problems 15 that we have is exactly the scope of it. We don't 16 know at this point. The best representation is that 17 made by Mr. Turk for the staff, and when the 18 supplement comes out, we will then -- you all will 19 have the opportunity to review it, and we will then 20 be in a position to make an informed decision, as to 21 whether or not anything further needs to be added to 22 the hearing.
23 What we are making clear is that what we 24 anticipate is not that any new or amended contention 25 would be filed now, based on the Marine Fisheries NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1023 1 report, but rather that it would be viewed timely, 2 if made based on the draft supplement, and at that 3 point in time, if it was necessary to either amend 4 Contention 8 or Contention 3, or to file a new 5 contention based on the scope, the actual scope of 6 the draft supplement, that it would be timely filed 7 at that point in time.
8 And at this point, it would be too 9 speculative to determine exactly if any impact it 10 would have on Contention 3, to justify a delay in 11 the filing of the direct testimony. So that again, 12 as we sit here right now, the direct testimony for 13 EC 8 is held in abeyance until after the filing of 14 the draft supplement.
15 We will revise that schedule once we've 16 reviewed it. With regard to Contention 3, that that 17 testimony will be due initially on the 22nd, after 18 the draft supplement is issued, hopefully no later 19 than May. In the event a further review leads us to 20 a conclusion that the scope of our hearing needs to 21 be expanded, either with an expanded 8, an expanded 22 3 or a totally new contention, we will address it at 23 that time.
24 Next has to do, Mr. Turk, we've had some 25 delays with supplemental environmental impact NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1024 1 statements, safety evaluation reports as things 2 stand right now, as we're moving forward to a 3 hearing. Does the staff anticipate that there might 4 be any more, that we will be getting any further 5 notification of new supplements to either the EIS or 6 SER? Mr. Turk?
7 MR. TURK: Your Honor, the only 8 supplementation that we expect is the one that we've 9 describe so far, the FSEIS Supplement, and the 10 projected date is approximately May.
11 JUDGE McDADE: In the event that that 12 changes, you would notify us immediately; correct?
13 MR. TURK: Yes sir.
14 JUDGE McDADE: Okay. The next has to 15 do, there was an issue raised by Clearwater. You 16 anticipate having testimony come in from a witness 17 who's either first language is not English. Their 18 first language is Spanish and perhaps only language 19 is Spanish.
20 As I understand it, you anticipate 21 submitting the testimony in Spanish, and to proffer 22 a translation of that testimony along with it. Is 23 that a correct understanding?
24 MS. GREENE: Yes, it is, Your Honor.
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1025 1 predisposed to do is to accept that, and we then 2 would have an opportunity to review it, to see 3 whether or not we are satisfied with the accuracy of 4 the translation, and the other parties would also 5 have an opportunity to review it, to see whether or 6 not they had any objection to the accuracy of the 7 translation.
8 In the event that we believed, that the 9 Board had questions to ask of the witness, if we go 10 and have a hearing, if that witness is going to 11 testify, the Board would provide a translator who 12 was certified by the Administrative Office of the 13 Courts, as a simultaneous court translator in 14 Spanish, rather than having the parties do it. Does 15 Clearwater have any objection to that?
16 MS. GREENE: No, Your Honor. We have 17 discussed that and, you know, that would be 18 absolutely fine with us.
19 JUDGE McDADE: Does the staff? Mr.
20 Turk?
21 MR. TURK: I certainly don't object, 22 Your Honor. I wonder if there's any limitation that 23 would be created by the NRC rule against providing 24 assistance to intervenors. I don't have a position 25 on that. I'm just highlighting it as a possible NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1026 1 point that we --
2 MS. GREENE: Could you repeat that 3 please, because I wasn't quite clear what your 4 concern was.
5 JUDGE McDADE: Okay. Mr. Turk, the 6 answer to that would be no, we're not providing 7 assistance to intervenors. We're providing 8 assistance to the Board. With regard to the written 9 direct testimony that's going to come in, each of us 10 would have an opportunity to review that document, 11 and if we had any objection to the translation, to 12 raise that and take corrections.
13 What I'm concerned about is when we get 14 to a hearing, the ability of various parties to 15 understand Spanish varies dramatically I'm sure, and 16 if the translation from a non-certified translator 17 were inaccurate in any way, we wouldn't know until 18 after the fact. Then it would be really very 19 inconvenient or impossible to draw everybody back 20 together.
21 Accordingly, what the Board intends to 22 do for its own purposes, not for the purposes of the 23 intervenor, is to have a certified translator, so 24 that at the hearing, if -- and again, the issue may 25 not arise, because we may not have any questions of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1027 1 that witness. The testimony may be perfectly clear 2 and not controversial.
3 But if we did, we would want to have our 4 translator there, so that it would not be necessary 5 for all of the parties to come back, if we had any 6 disagreement with the simultaneous translation.
7 Because all we would have on the record is what the 8 translator said, assuming that the court reporter 9 was not able to take down both the Spanish and 10 English simultaneously, I guess one with each hand.
11 So again, it's not an assistance to the 12 intervenor; it would be as an assistance to the 13 Board and to the proceeding itself. Okay. Does 14 Entergy have any objection?
15 MR. BESSETTE: No, Your Honor. We have 16 no objection or further comments at this time.
17 JUDGE McDADE: Okay. Does any of the 18 other parties or interested government agencies?
19 MR. SIPOS: No objection, Your Honor.
20 This is John Sipos.
21 JUDGE McDADE: Okay.
22 MR. MUSEGAAS: No objection from 23 Riverkeeper.
24 JUDGE McDADE: Okay. The next issue had 25 to do with the location. We would anticipate, and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1028 1 again, once we get an actual date for the hearing, 2 we would be able to identify the actual location.
3 Do any of the parties have any comments 4 specifically with regard to where the hearing should 5 be held? Let me just sort of run down. Entergy, 6 what's your view?
7 MR. BESSETTE: Well Your Honor, because 8 of the complexity of the issues, the number of 9 witnesses, we would propose locating it near White 10 Plains, which would have access to the majority of 11 our witnesses.
12 JUDGE McDADE: Okay. From the NRC 13 staff?
14 MR. BESSETTE: And the site, yes.
15 Sorry, yes.
16 MR. TURK: We haven't really given it 17 much thought, Your Honor. The one place where the 18 staff has held meetings in the past is this hotel or 19 motel located close to the plant. I don't know if 20 that's the most appropriate place, since it's really 21 one large room. It may be that White Plains is 22 preferable. But we really haven't considered 23 alternatives very much.
24 JUDGE McDADE: This is Judge McDade 25 again. Let me just give you a little bit of my NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1029 1 thinking. The ideal situation, if we were to have 2 it in the White Plains area, would be back where we 3 had the oral argument on contention admissibility at 4 the courthouse in New York.
5 We won't know about the availability of 6 that courthouse until we've actually developed a 7 schedule of when we're going to have that particular 8 hearing. I'm making an assumption. One of the 9 issues raised was whether or not the hearing 10 facility would be ADA-accessible. I'm assuming that 11 a court of general jurisdiction in New York would be 12 ADA-accessible.
13 Does any party, if in the event we were 14 to go to White Plains, does any party one, have an 15 objection to the hearing going forward in the White 16 Plains area, and if so, in the state courthouse 17 there?
18 (No response.)
19 JUDGE McDADE: Okay. There doesn't 20 appear to be any objection voiced. Again, whether 21 or not that facility would be available for us will 22 depend on whether or not we're able to work our 23 schedule in with theirs, once we actually have a 24 date for the schedule.
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1030 1 are now an EIE case, and it will be necessary for 2 all of the parties to file in the, you know, through 3 the EIE system. So you know, as we're coming up to 4 the 22nd, if any of the parties have any questions 5 with regard to how to access the system, what they 6 need to do in order to utilize it, now is the time 7 to resolve it, and not on the, at 7:00 p.m. on the 8 22nd.
9 At this point in time, does any party or 10 interested government agency anticipate that they're 11 going to have any difficulty with the EIE system?
12 Is there anyone who feels at this point that they 13 are not sufficiently familiar with it to be able to 14 move ahead on the 22nd, using the EIE?
15 (No response.)
16 JUDGE McDADE: Okay, apparently not.
17 The next thing we just wanted to mention is that the 18 Board anticipates conducting a site visit at the 19 facility. We would not anticipate doing this in the 20 short term. It would be after the testimony is 21 taken, before the direct testimony. After that, but 22 before the hearing, probably some time in the 23 spring, probably in May.
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1031 1 would be relatively short, and the Board would issue 2 an order sufficiently in advance, advising the 3 parties of exactly those aspects of the facility 4 that we would want to see. But again, that would 5 not occur until some time in the spring, probably in 6 May.
7 We will give enough notice, so that 8 regards to access can be worked out of who would be 9 coming for each of the various entities, and what we 10 wanted to do is to make sure Entergy was aware of 11 this intent on the part of the Board.
12 So that with regard to the logistics, 13 that you could have that worked out, you know, so 14 that when we notify it of exactly what information 15 you're going got need about individuals who would be 16 coming and what kinds of notifications and 17 instructions need to be given to them, in order to 18 gain access to the facility, to be present when the 19 Board is looking at certain specific aspects of it.
20 And also, as I said, we were issuing an 21 order sufficiently prior to the site visit, that 22 focuses. All of us have seen nuclear plants before.
23 We don't need to start from square one. So we 24 anticipate it would be a relatively short, 25 relatively focused visit.
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1032 1 MR. BESSETTE: Your Honor, this is Paul 2 Bessette. We appreciate the notice. I'm sure 3 Entergy can accommodate any of the needs the Board 4 may require, any location, and we welcome the Board 5 to the site.
6 JUDGE McDADE: I don't know quite what 7 the fireworks were in the background there. I don't 8 know who's phone that was on. I hope nobody's 9 exploding.
10 MR. BESSETTE: It wasn't D.C., for a 11 change.
12 JUDGE McDADE: Okay. The only other 13 thing that I wanted to mention at this point in 14 time, just for individual planning purposes, there 15 is a motion still pending, that the Board has not 16 issued an order on, having to do with the Fukushima 17 incident and the contentions, the proposed 18 contentions.
19 The Board anticipates denying the motion 20 to admit the new contention regarding the Fukushima 21 and the Fukushima Task Force report, and we will be 22 getting an order out on that in due course.
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1033 1 to be handled, as far as any appeal rights the 2 parties would have. It's not based on what we say 3 here today.
4 But it would start from the date that 5 the order is actually published and served on the 6 parties. Let me just put you on mute here for a 7 second, and I will get back to you shortly.
8 (Whereupon, a short recess was taken.)
9 JUDGE McDADE: Hi, this is Judge McDade.
10 We're back on. We, the Board, has nothing further to 11 raise at this particular status conference before we 12 ring off. However, what I wanted to do is to go 13 down through the parties and the interested 14 government entities who are on the phone to see 15 whether or not there are any other issues that you 16 want to raise at this status conference that need to 17 be resolved.
18 First of all from Entergy, Mr. Bessette?
19 MR. BESSETTE: Your Honor, we have 20 nothing further to address, and we thank you for 21 holding the conference.
22 JUDGE McDADE: Okay. Mr. Turk from the 23 NRC?
24 MR. TURK: Nothing for the Staff, Your 25 Honor.
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1034 1 JUDGE McDADE: Mr. Sipos from New York?
2 MR. SIPOS: Yes, Your Honor. There are 3 just a few things I'd like to note. One is the 4 regulatory impact of this extension of a draft 5 sometime in May, and then a six-month time line 6 following that.
7 As the State reads the NRC regulations 8 and also the CEQ regulations at 40 CFR 1506.1, it 9 does not seem possible for the NRC to issue a final 10 operating license until that NEPA process concludes, 11 which now seems that it will be later than 12 previously anticipated.
13 And, also, I guess our reading of 14 51.104, and perhaps this is what Your Honors were 15 getting at, or arriving at with the proposed order, 16 is that the Staff cannot go forward I guess at least 17 with respect to these aquatic issues in terms of 18 NEPA.
19 I'm not necessarily looking for a 20 response. I guess I'm just noting that for the 21 record from the State's perspective.
22 And, I guess, further I would just note 23 -- I mean, this -- what Staff has done here on the 24 November 30 letter, I mean, it has disrupted our 25 preparation efforts to move forward trying to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1035 1 understand what they were proposing and preparing 2 for today. I am loathe to ask for any type of 3 extension, but with the additional requirements that 4 we are going to go forward with now in the next 5 week, I am wondering if a very modest adjustment for 6 some contentions might be in order.
7 JUDGE McDADE: Do you want until 8 Christmas Eve?
9 MR. SIPOS: Well, that would be one more 10 day, Judge.
11 JUDGE McDADE: Let me -- my first 12 predisposition is to say no on a couple of levels.
13 One, 51.104 is something that we will need to 14 address down the road. But the first question with 15 regard to Riverkeeper Environmental Contention 8 is, 16 we are holding it in abeyance at this point in time.
17 It's going to be held in abeyance at least until the 18 draft supplement issues in May. At that point, the 19 parties will have an opportunity to see whether or 20 not the issues are adequately addressed, and to 21 address to the satisfaction of the parties, or 22 whether or not EC 8 needs to be modified or a new 23 contention filed based on the draft supplement.
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1036 1 detailed, and sufficiently focused that we would be 2 able to proceed to a hearing on EC 8 or any new or 3 amended contention, or would need to delay that 4 until the final of that supplement was issued; 5 which, as Mr. Turk pointed out, could be six to 6 seven months after the draft. But in any event, it 7 seems that until we look at the draft, it's going to 8 be very difficult to make any kind of informed 9 decision as to what our schedule should be.
10 At this point, Riverkeeper EC 8 is off 11 the track with the rest of the contentions, and it 12 may be that we go to a hearing on all of the other 13 contentions, and then come back and deal with 14 Riverkeeper 8, or any new or amended contention that 15 arises out of the draft supplement, or any final 16 supplement.
17 That said, we now have a question about 18 what to do with the remainder. It was Riverkeeper's 19 burden to submit the testimony on 8, not the other 20 parties. And if anything at this point, we're 21 submitting less material on the 2 2 nd rather than 22 more material.
23 So, my first reaction would be to say 24 that there shouldn't be a need for an extension.
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1037 1 was somewhat joking, is that if we give a -- let me 2 delete the word "somewhat" there.
3 If we give an extension beyond the 2 2 nd 4 of December, we then -- what is a reasonable 5 extension? We get into the week between Christmas 6 and New Year, in that period of time, so is giving 7 an extension really of any particular value, or does 8 it just make people's schedule more complicated, as 9 opposed to less complicated.
10 in other words, in this particular 11 instance, Mr. Sipos, if I were to give you another 12 week or 10 days, wouldn't that just make things more 13 difficult for New York?
14 MR. SIPOS: It would -- there would be 15 scheduling complications, yes, Your Honor. But in 16 connection with the additional time line or 17 deadlines now for 38, and, of course, we will follow 18 those directives, I was referring I guess not so 19 much to Riverkeeper's obligation to submit 20 testimony, but reviewing what the Staff had done 21 preparing for today, and also the additional work 22 for 38. And, again, I understand that there could 23 be scheduling complications, and a one-week 24 extension, or even 10 days does not -- there would 25 be complications for that. I guess I was going to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1038 1 propose something on the order of 20 days, but --
2 because I do think it would materially assist us.
3 And I do think that there has been -- we are fairly 4 leanly staffed in trying to address these issues at 5 a time that we were focused on preparing and doing 6 the best effort that we could for our opening 7 submissions. It has been disruptive, but -- so, I 8 guess I'll leave it at that.
9 JUDGE McDADE: So, when you're saying 20 10 days, you're asking for an extension then from the 11 2 2 nd of December until the 11th of January?
12 MR. SIPOS: The 11th or 1 2 th, yes.
13 MR. MUSEGAAS: Your Honor, if I may; this 14 is Phillip Musegaas from Riverkeeper. We 15 acknowledge and we appreciate the additional time 16 and the Board's decision on EC 8. We do have limited 17 resources, and the time that we have spent preparing 18 for this call and reviewing the NRC's submission on 19 the supplement would have been time spent preparing 20 testimony. So, to the extent that we feel it's 21 appropriate, we support the idea of a very 22 reasonable extension of time to file the testimony.
23 Thank you.
24 JUDGE McDADE: Yes. What's the view of 25 the NRC Staff on this, Mr. Turk?
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1039 1 MR. TURK: We really take no position, 2 Your Honor. If the Intervenors need more time, 3 that's something worth considering. On the other 4 hand, I haven't heard any specific dates for the 5 extension.
6 JUDGE McDADE: Well, it also has the 7 benefit for the other parties in that any response 8 to it -- now, the clock doesn't start ticking over 9 the Christmas and New Year period of time.
10 Mr. Bessette, from Entergy's standpoint, 11 what's your view?
12 MR. BESSETTE: Your Honor, one, no one 13 has consulted with us on this request. But as you 14 can imagine, the logistics of responding to three 15 Intervenors, we've been planning for this. We have 16 experts and parties in place ready to go. I think 17 we've been more than accommodating on prior 18 extension requests.
19 Of course, a 20-day extension would not 20 upset the world, but every time we change the 21 schedule requires an enormous effort on everyone's 22 part of experts, planning vacations, changing 23 vacations, because it's not just 20 days. It rolls 24 out the rest of the proceeding. So, I would urge 25 that we stay within the current schedule.
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1040 1 JUDGE McDADE: Okay. Does anyone else 2 have a view on this, Riverkeeper? We've already 3 heard from Clearwater.
4 MS. GREENE: Yes, Clearwater supports the 5 extension request. And, Your Honor, if I may, I'd 6 also like to point out that Clearwater was 7 consolidated with Riverkeeper. It was Riverkeeper EC 8 3 and Clearwater EC 1, if I'm not mistaken. I just 9 wanted to make that point. Thank you.
10 JUDGE McDADE: Connecticut, any comment?
11 MR. SNOOK: We do support the request. We 12 do think it's important to give everyone an 13 opportunity, because -- particularly because yes, 14 the state governments, and Riverkeeper, and 15 Clearwater are dealing with fairly lean at best 16 staffing.
17 I certainly understand Entergy's 18 position, and I'm sympathetic, but on the overall 19 perspective, we would support New York's request.
20 MR. BESSETTE: Your Honor, this is Paul 21 Bessette. I just need to note one thing. I mean, I 22 can't imagine that there's going to be any 30-day 23 period in the coming two years that there's not 24 going to be some letter, or event, or a holiday.
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1041 1 reasons that I think the parties should be able to 2 account for and adapt.
3 JUDGE McDADE: No, I understand. And I 4 also understand, Mr. Bessette, the logistical 5 issues. And, also, I understand the fact that you 6 have not had an opportunity to discuss this. You 7 haven't had an opportunity to talk with the people 8 who are going to be reviewing these matters for you, 9 and your experts, and the individuals that you're 10 going to be submitting direct testimony from, as 11 well. And that to a very large degree, as we sit 12 here right now, you are in no position to state 13 whether or not this thing -- an extension would 14 create problems, or whether it would solve more 15 problems than it would create, or whether it would 16 create really insurmountable problems, or very 17 significant problems. And, as you noted, the parties 18 have been very reasonable and professional with each 19 other in granting reasonable extensions.
20 At this point in time, what I would 21 propose is not to rule on this. Let me discuss it 22 with my colleagues, and we will get back to you by 23 email relatively promptly so you will be able to 24 know. And then if an extension were to be granted, 25 we would issue an order so it would be part of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1042 1 record.
2 Any extension that we would grant, 3 obviously, would move forward those other deadlines 4 for the other parties. And, also, in the event that 5 it did create problems for the other parties 6 logistically with regard to the availability of 7 their legal staff, their experts and their witnesses 8
9 MR. BESSETTE: Your Honor, if I may just 10 interrupt, I want to make it clear from Entergy's 11 point of view that it's our current position that 12 any change in the schedule will disrupt the experts.
13 I can safely say that. I can't tell you how much, 14 but we've got numerous -- we've got 15 admitted 15 contentions with experts lined up, both factual and 16 witness lined up.
17 I can affirmatively state that it will be some 18 disruption.
19 JUDGE McDADE: I understand, Mr.
20 Bessette.
21 MR. BESSETTE: Okay. Thank you, Your 22 Honor.
23 MR. SIPOS: And, Your Honor, this is John 24 Sipos. And I certainly appreciate the opportunity 25 even to bring this up. And on behalf of the State, I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1043 1 would, I guess, offer the possibility that some of 2 our contention submissions could be filed -- would 3 be filed before the date proposed here. And that 4 might alleviate, or it might not, some of Entergy's 5 concerns.
6 And I understand what Mr. Bessette said 7 about disruption. I think the State has also 8 experienced some disruption, as well, unforeseen.
9 JUDGE McDADE: Okay. Let me put you on 10 mute here for a second, and we will get back with 11 you very quickly.
12 (Whereupon, the proceedings went off the 13 record at 2:52:28 p.m., and went back on the record 14 at 2:55:27 p.m.)
15 JUDGE McDADE: This is Judge McDade 16 again. Mr. Sipos, let me raise a possibility here 17 first with New York, and then go through it with the 18 other parties.
19 We have tasked New York and the Staff 20 with doing certain things with regard to Contention 21 38. We also realize that until today there was an 22 issue as to the clarification with 38.
23 What would New York's reaction -- and I 24 also understand the issue that Mr. Bessette raised 25 as a very compelling interest. If we were to direct NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1044 1 that the testimony with regard to all contentions 2 exception Contention 38/5 were to be filed on the 3 22n,, that with regard to the discussions, with 4 regard to the scope of disclosures, and other 5 matters relating to whether or not a motion to 6 compel would be necessary on 38, that we hold those 7 in abeyance until after the rest of the testimony --
8 direct testimony is filed on the 2 2 nd. To then 9 direct that the parties get back to us rather than 10 next week on that, to get back to us no later than 11 say the 4 th of January with regard to whether or not 12 those matters would be resolved, were resolved, or 13 whether a motion to compel would be necessary. So 14 that we would then simply maintain the same track 15 for everything that have except New York 38.
16 You would not be distracted in working 17 on the scope of 38, whether you're trying to get out 18 the testimony and the remaining contentions, your 19 consultation would be completed during the first 20 week of January, and notice would be given to the 21 Board during the first week of January. That way, 22 any experts and other resources that Entergy has 23 lined up, with the exception of -- with regard to 24 the new Contention 38/5, would not be interfered 25 with.
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1045 1 Does that resolve the problems that New 2 York would have?
3 MR. SIPOS: Your Honor, it provides some 4 little relief, and I'm not unsympathetic to that.
5 However --
6 JUDGE McDADE: Is the operative word 7 there mostly relief or little?
8 MR. SIPOS: Candidly, Your Honor, 9 respectfully, I guess the emphasis is on little, 10 because we have had other distractions leading up to 11 today trying to sort out the motion for 12 clarification on 38. I understand Entergy filed it 13 in good faith, but that did involve some diversion 14 of resources. And, again, the recent notification 15 by Staff and the preparation for this, so it has --
16 we have had some diversion of resources.
17 And it is correct that the consultation, 18 the discussion on scope of discovery, and moving --
19 making arrangements, reviewing documents, 20 solidifying expert review would also divert 21 resources. I say that with respect to 38. So, it 22 does provide some relief. It does not provide, New 23 York would respectfully submit, perhaps all the 24 relief that we believe is appropriate.
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1046 1 view?
2 MR. MUSEGAAS: Your Honor, this is 3 Phillip Musegaas. I would tend to agree with New 4 York State that it's -- that we appreciate the 5 relief offered in terms of working with New York 6 State and the Staff on Contention 38 but, frankly, 7 we still face a challenge. And in the alternative, 8 if the Board and Your Honor feels that 20 days is 9 too extensive and would unfairly burden Entergy with 10 changing their schedule, then we would propose 11 consideration of a week to 10-day extension. Even 12 that would assist us quite a bit in finalizing our 13 testimony.
14 We were involved in responding to the 15 motion for clarification from Entergy, as well, been 16 involved in reviewing the issue surrounding the 17 biological opinion and things like that, as I've 18 stated already. So, we would just suggest that even 19 a shorter extension would be appreciated. And it's, 20 essentially, extending the time to just beyond the 21 end of the holiday, we don't think that that would 22 overly prejudice Entergy in terms of their 23 scheduling.
24 JUDGE McDADE: This is Judge McDade 25 again. Unfortunately, given the fact that this was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1047 1 just raised here orally, I understand what Mr.
2 Bessette's position is; that there will be 3 disruption. I also understand that Mr. Bessette is 4 not in a position just on the fly to describe in 5 full exactly what that disruption would be, or 6 exactly how it would be impacted with five days, 10 7 days, 20 days; whether or not that's -- one would be 8 more or less disruptive.
9 And, also, in giving an extension, I 10 don't want the extension to be meaningless.
11 Probably that time period between Christmas and New 12 Year's is one of the most difficult times to try to 13 coordinate with individuals, and whether your 14 witnesses or experts, and Entergy's witnesses and 15 experts, unless it's been tied down ahead of time, 16 it is usually the most difficult time of the year 17 within which to try to find people in their offices 18 and get them to focus on things.
19 In any event, I think we've heard fully 20 from the parties on it, and we just need to decide.
21 And as I indicated earlier, what I would be 22 predisposed to doing is just have the Board discuss 23 it, and then notify you promptly via email so for 24 your planning purposes you would know what's coming 25 down the road. And then, if appropriate, follow NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1048 1 that up with an order so it would be part of the 2 record.
3 Does anyone else have any -- I think 4 we've pretty much beaten this horse. Does anybody 5 have anything further on it that they would like to 6 discuss?
7 MR. SIPOS: Just, Your Honor, we would 8 also be willing to stagger and provide some --
9 perhaps the bulk even before any extended deadline.
10 But I will refrain from saying anything else.
11 JUDGE McDADE: Well, Mr. Sipos, when you 12 say "the bulk," what would you be able to file on 13 the -- and I'm sitting here right now and, quite 14 frankly, off the top of my head, I don't know how 15 many contentions New York is taking the lead on. I 16 assume you know off the top of your head. How many 17 are you taking the lead on?
18 MR. SIPOS: Let's see, one, two, three, 19 four, five, six, seven, eight, nine, ten, ten absent 20 35, and 36, and 38, which are off the -- for the 21 purposes of this discussion off the table. So, I 22 believe that's 10, and I believe we could submit 23 prior to any extended date on a number of those.
24 JUDGE McDADE: Okay. When you say "a 25 number," are there -- when you say that, are there NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1049 1 specific ones?
2 MR. SIPOS: Yes.
.3 JUDGE McDADE: Okay, 24, 25, and 26 we 4 can put in, or are you just simply saying we could 5 get in half of the 10 by the 2 2 nd?
6 MR. SIPOS: I have -- there are specific 7 contentions that I believe we could file.
8 JUDGE McDADE: Which are?
9 MR. SIPOS: Transformers 8, no action 10 Entergy, so 37, 33, and 9 consolidated. Cables 6 and 11 7, pipes, tanks, which is number 5, population 16, 12 planned value 17, and we're not -- I'm just not sure 13 as to the remainder. So, 24, 25, 26 and 12.
14 MR. TURK: The last four you would need 15 more time on. I'm sorry, this is Sherwin Turk.
16 MR. SIPOS: Yes.
17 JUDGE McDADE: Mr. Bessette, what's your 18 reaction?
19 MR. BESSETTE: Your Honor, we continue to 20 believe that this proceeding has been going on for 21 so many years, and we believe we deserve some 22 certainty, and that the parties should file on the 23 agreed upon deadline that we agreed on not two weeks 24 ago. And we don't believe the parties have provided 25 any true basis for an extension, and we've NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1050 1 established some harm.
2 Like I said, we have numerous experts 3 who have other obligations. We've had -- literally, 4 parties have cancelled vacations, holiday vacations 5 to be ready for this.
6 MR. SIPOS: Yes, I've got to respond to 7 that, to speak on behalf of the State of New York.
8 MR. BESSETTE: I wasn't done, Mr. Sipos.
9 MR. SIPOS: I'm sorry, Paul.
10 MR. BESSETTE: All right. Thank you, 11 Your Honor. So, I think our position is that we 12 believe Your Honor's offer with regard to New York 13 State 38 is reasonable. It addresses any 14 distractions in the coming weeks. And we believe 15 that's an appropriate offer.
16 MR. TURK: Well, it wasn't so much an 17 offer as just a proposal to get feedback on. But --
18 19 MR. BESSETTE: And one other item, Your 20 Honor. If the Board is going to -- inclined to give 21 any offer of delay, we would agree that the bulk of 22 that should move forward on time.
23 JUDGE McDADE: Okay. Mr. Sipos?
24 MR. SIPOS: Yes, sir?
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1051 1 was something you wanted to address?
2 MR. SIPOS: No, I will -- the State has 3 also over a period of years had disruptions to their 4 Staff's schedule, and I won't say anything else 5 about it.
6 JUDGE McDADE: Okay. As I said, we will 7 get back to you promptly. I anticipate that you'll 8 be getting an email from us tomorrow with regard to 9 that.
10 I believe there's nothing further to be 11 taken up. Judge Wardwell?
12 JUDGE WARDWELL: I have nothing.
13 JUDGE McDADE: Judge Lathrop?
14 JUDGE LATHROP: I have nothing further.
15 JUDGE McDADE: And I take it none of the 16 parties has anything further to address before we 17 terminate the status conference.
18 MR. TURK: I have one point in response 19 to Mr. Sipos, Your Honor.
20 JUDGE McDADE: Yes, Mr. Turk?
21 MR. SIPOS: Filings where four of the 22 State's contentions are delayed, and we really don't 23 buy anything in the way of time because, ultimately, 24 we're going to be going to hearing at the same time, 25 anyway. So, I don't see the point of staggering NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1052 1 where some contentions are worked with testimony 2 earlier than others. So, I would say given a choice 3 between staggered filing or delay of two to three 4 weeks, or 10 days as Riverkeeper suggests, the two 5 to three weeks that Mr. Sipos would want, I believe 6 that's three weeks, I would prefer filing all 7 testimony at the same time at whatever extension 8 time the Board may decide to give, or whatever the 9 current schedule is.
10 JUDGE McDADE: Well, let me also indicate 11 and just get an impact from the Intervenors, New 12 York in particular. What I would be predisposed to 13 doing is if we were to do that, and again I haven't 14 discussed this with my colleagues so it may be 15 something entirely different; even if we were to 16 bifurcate the time for submitting -- in other words, 17 having certain contentions filed on the 2 2 na, the 18 end result would then give the responding parties 19 more time, because I would anticipate whenever you 20 actually worked on them would be up to you, but that 21 all of the responses would be due on the same date, 22 whether it would be for the first filed contentions, 23 or for the later filed contentions. So that we would 24 then have a -- everything would then be back on the 25 same track, as opposed to have piecemeal sort of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1053 1 rolling in. And I assume New York would not have an 2 objection to that.
3 And having stated it that way, it sort 4 of suggests that New York doesn't have an objection 5 to that.
6 MR. SIPOS: New York does not have an 7 objection.
8 JUDGE McDADE: Okay. We will be back to 9 you by email tomorrow. That said, this status 10 conference is terminated. Thank you very much.
11 (Whereupon, the proceedings went off the 12 record at 3:09 p.m.)
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CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission Proceeding: Entergy Nuclear Operations Indian Point Nuclear Generating Plant Docket Number: 50-247-LR and 50-286-LR ASLBP Number: 07-858-03-LR-BD01 Location: Teleconference were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken and thereafter reduced to typewriting under my direction and that said transcript is a true and accurate record of the proceedings.
Official Reporter Neal R. Gross & Co., Inc.
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