ML12024A433
| ML12024A433 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 01/18/2012 |
| From: | NRC/SECY/RAS |
| To: | |
| SECY RAS | |
| References | |
| 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, NRC-1399, RASE-587 | |
| Download: ML12024A433 (49) | |
Text
A'~-3 ~%~7 Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Entergy Nuclear Operations, Inc. DOCKETED Indian Point Units 2 and 3 January 23, 2012 (11:00 a.m.)
Pre-hearing Conference OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF Docket Number: 50-247-LR and 50-286-LR ASLBP Number: 07-858-03-LR-BD01 Location: (telephone conference)
Date: Wednesday, January 18, 2012 Work Order No.: NRC-1399 Pages 1054-1100 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433 ftA-T , :- Sg,_Y'W7bg b_3'Lý' )5 6 63
1054 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: Docket Nos.
9 ENTERGY NUCLEAR 50-247-LR 10 OPERATIONS, INC. 50-286-LR 11 ASLB No.
12 07-858-03-LR-BD01 13 (Indian Point Nuclear 14 Generating Units 2 and 3):
15 --------------------- x 16 Wednesday, January 18, 2012 17 Rockville, MD 18 The above-entitled matter came on for 19 status conference, via telephone, pursuant to 20 notice, at 1:30 p.m.
21 BEFORE:
22 LAWRENCE G. MCDADE Administrative Judge 23 DR. KAYE D. LATHROP Administrative Judge 24 DR. RICHARD E. WARDWELL Administrative Judge 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1055 1 APPEARANCES:
2 On Behalf of the Nuclear Regulatory 3 Commission:
4 SHERWIN E. TURK, ESQ.
5 BETH MIZUNO, ESQ.
6 DAVID E. ROTH, ESQ.
7 ANITA BHOSH, ESQ.
8 BRIAN NEWELL, Paralegal 9 ROBERT KUNTZ, Project Manager 10 KIM GREEN 11 RAJENDER AULUCK 12 ABDUL SHEIKH 13 of: Office of the General Counsel 14 Mail Stop 15 D21 15 U.S. Nuclear Regulatory Commission 16 Washington, DC 20555-001 17 18 On Behalf of Entergy Nuclear Operations, Inc:
19 PAUL M. BASSETTE, Esq.
20 MARTIN J. O'NEILL, Esq.
21 Morgan, Lewis & Bockius, LLP 22 1111 Pennsylvania Avenue, NW 23 Washington, DC 20004 24 25 ALAN COX NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1056 1 RICHARD DRAKE 2 Entergy Nuclear Operations, Inc.
3 440 Hamilton Avenue 4 White Plains, NY 10601 5
6 On Behalf of Riverkeeper, Inc.
7 DEBORAH BRANCATO, ESQ.
8 Riverkeeper, Inc.
9 20 Secor Road 10 Ossining, NY 10562 11 12 On Behalf of Hudson River Sloop Clearwater, 13 Inc.:
14 MANNA JO GREENE, ENVIRONMENTAL DIRECTOR 15 KARLA RAIMUNDI 16 Hudson River Sloop Clearwater, Inc.
17 724 Wolcott Ave.
18 Beacon, NY 12508 19 20 On Behalf of the State of New York:
21 JOHN J. SIPOS, ESQ.
22 CHARLES DONALDSON, ESQ.
23 LISA BURIANEK, ESQ.
24 Assistant Attorneys General 25 Office of the Attorney General of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1057 1 State of New York 2 The Capitol 3 State Street 4 Albany, New York, 12224 5
6 JOAN LEARY MATTHEWS, ESQ.
7 Senior Attorney for Special Projecte 8 New York State Department of 9 Environmental Conservation 10 625 Broadway, 1 4 th Floor 11 Albany, NY 12233-5500 12 13 On Behalf of the State of Connecticut:
14 ROBERT D. SNOOK, ESQ.
15 Assistant Attorney General 16 State of Connecticut 17 55 Elm Street 18 P.O. Box 120 19 Hartford, CT 06141-0120 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1058 1 PROC E ED ING S 2 (1:37:57 p.m.)
3 ADMINISTRATIVE JUDGE McDADE: Okay. We will 4 come to order. We're here in the matter of Entergy 5 Nuclear Operations Indian Point Nuclear Generating 6 Units 2 and 3. Docket number 50-247-LR and 50-286-LR, 7 ASLPB number 07-858-03, and LRBD01.
8 We are here based on a proposed settlement 9 agreement regarding New York State Contention 24.
10 This Contention was virtually admitted in our order of 11 July 3 1 st, 2008, LBP-0813. That Contention claimed 12 that there was a violation of 10 CFR 54.21(a)l. It 13 challenged the integrity of the containment structure, 14 and alleged there was an inadequate Aging Management 15 Program to insure the continued integrity of the 16 containment structure during the proposed life 17 expansion.
18 When the Board admitted the Contention, we 19 admitted it in order to "determine what effect, if 20 any, the water cement ratio would have on the 21 integrity of the containment structure and whether any 22 additional AMPs were necessary. And, if so, what 23 those AMPs would include."
24 We received on December 2 1 st, 2011 a 25 proposed settlement agreement. And subsequent to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1059 1 that, we asked the parties to submit to us various 2 documentation. The settlement agreement specifically 3 referred to documents that had been furnished to the 4 State of New York by Entergy during the course of the 5 disclosures, and New York indicated that based on 6 those documents they were satisfied that the current 7 containment structure was adequate and that the 8 proposed testing and inspection for the period of 9 continued operation would be adequate.
10 Prior to approving the settlement 11 agreement, we wanted to inquire into it. We have 12 received those documents, and we thank you for them.
13 We've had the opportunity to review them, and we
- 14 wanted to have just before we moved on some questions 15 of the parties so that we can satisfy ourselves that 16 the settlement agreement is in the public interest.
17 Specifically, the settlement agreement 18 makes reference to 10 CFR 50.55(a). That portion of 19 the Code of Federal Regulation goes on for scores of 20 pages, but it does require that as a condition of the 21 license that certain paragraphs included there be part 22 of the license; (f) having to do with in-service 23 testing requirements, and Subpart G having to do with 24 in-service inspection requirements.
25 What we would like to do, and I will allow NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1060 1 either New York or Entergy -- and let me first ask New 2 York. And if you wish, you can defer to Entergy. Can 3 you explain at this point, the nature of the testing 4 and how that has satisfied the interest of New York?
5 Immediately before doing that, though, I 6 just want to make a record of who is a participant in 7 this particular call. We will go down, first of all, 8 the joint motion. New York and Entergy, from New York 9 State?
10 MR. SIPOS: Yes, good afternoon, Your 11 Honor. This is John Sipos, S-I-P-O-S. I have Lisa 12 Burianek here with me in Albany, and Charlie Donaldson 13 in New York City.
14 ADMINISTRATIVE JUDGE McDADE: And from 15 Entergy?
16 MR. BASSETTE: Yes, Your Honor, it's Paul 17 Bassette, Marty O'Neill, and then from Entergy I have 18 Rich Drake and Alan Cox.
19 ADMINISTRATIVE JUDGE McDADE: And from the 20 NRC Staff?
21 MR. TURK: Sherwin Turk. I'm joined by 22 David Roth, Beth Mizuno, Anita Bhosh, and Brian Newell 23 from my office. Also, Kimberly Green, Abdul Sheikh, 24 and Raj Auluck.
25 ADMINISTRATIVE JUDGE McDADE: Okay, and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1061 1 from Riverkeeper?
2 MR. TURK: Oh, I'm sorry, one more on the 3 telephone, Robert Kuntz.
4 ADMINISTRATIVE JUDGE McDADE: Okay, thank 5 you, Mr. Turk. From Riverkeeper?
6 MS. BRANCATO: Yes, Your Honor. This is 7 Deborah Brancato from Riverkeeper.
8 ADMINISTRATIVE JUDGE McDADE: And from 9 Clearwater?
10 MS. GREENE: Yes, Your Honor. Manna Jo 11 Greene from Clearwater, also Karla Raimundi.
12 ADMINISTRATIVE JUDGE McDADE: Okay, and 13 from Connecticut?
14 MR. SNOOK: Robert Snook from Connecticut.
15 ADMINISTRATIVE JUDGE McDADE: Okay. And, 16 Ms. Matthews, you're also on the line?
17 MS. MATTHEWS: Yes, I am, Your Honor.
18 ADMINISTRATIVE JUDGE McDADE: Okay. From 19 the New York Department of -- I'm sorry.
20 MS. MATTHEWS: That's okay, Environmental 21 Conservation.
22 ADMINISTRATIVE JUDGE McDADE: No, no, what 23 -- I'm sorry. What I was sorry about is not that 24 you're on the line, Ms. Matthews. It's just that 25 Judge Lathrop is out in Colorado and was on the line, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1062 1 and I just got a notice just handed to me that Judge 2 Lathrop has just been dropped off the call. So, if 3 you can just hold on for a second here and let us get 4 Judge Lathrop back on the line. Hold on, please.
5 Okay, we're back on the line. This is 6 Judge McDade. Judge Lathrop is back on the line.
7 When we left off, the parties had been 8 identified, all of the participants on the line. Let 9 me ask, is there anybody else who is on the line that 10 we have not identified for the record?
11 (No response.)
12 ADMINISTRATIVE JUDGE McDADE: Okay, 13 apparently not. As I understand the settlement 14 agreement, there's basically three parts to it. First, 15 there has been testing, and we have received the 16 results of that testing which has been quite 17 extensive. A lot of documentation has been submitted, 18 and is now part of the record.
19 There is also a commitment to continue 20 testing and inspection during the period of continued 21 operation. Also, a commitment on the part of Entergy 22 to submit the results of that continued testing and 23 inspection to the State of New York. And also, if for 24 any reason Entergy were to sell or transfer ownership, 25 that that commitment would pass to any new owner or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1063 1 operator of the Indian Point facilities.
2 Let me ask, either -- to ask first New 3 York and then if you wish you can defer to Entergy, 4 could you briefly explain the nature of the inspection 5 and testing that has been done, and is committed to 6 being done in the future?
7 MR. SIPOS: Your Honor, good afternoon.
8 John Sipos, again. I think it would be most 9 appropriate to defer to Entergy, although I am -- Mr.
10 Donaldson and I are happy to address questions 11 concerning the settlement. But as to the inspection 12 that -- with respect to the inspections that have 13 taken place, and are anticipated to take place for the 14 period of extended operation for year 40 out to 60, I 15 believe it would be most appropriate if Entergy 16 covered that.
17 ADMINISTRATIVE JUDGE McDADE: Okay, Mr.
18 Sipos. Mr. Bassette. And what we're looking for is 19 just sort of a brief summary. The documentation has 20 been submitted. It's part of the record in this case.
21 Can you just for the record give a brief summary of 22 the kind of testing and inspection that has been done 23 with regard to the integrity of the concrete in the 24 containment structure?
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1064 1 that. If you have any questions, hopefully I can 2 answer them, but also I may defer to some of my 3 colleagues or Entergy.
4 The historical reports we provided to you, 5 we gathered approximately 2,700 original concrete 6 sample reports from original construction of Unit 2 7 and 3. We had hired an expert, Dr. Burdette, from the 8 University of Tennessee who reviewed all of those 9 reports to determine the quality of the original 10 concrete test report -- of the original concrete used 11 to construct Unit 2 and 3. And those reports that New 12 York forwarded to you, those original test reports 13 would show all of the original concrete exceeded the 14 3,000 psi criteria at 28 days.
15 All those reports show that the original 16 concrete used for Units 2 and 3 were a high-quality 17 concrete, not met at strength requirements. With 18 regard -- those are the original test reports.
19 With regard to ongoing inspections, 20 Entergy for the containment concrete inspection is 21 crediting the Aging Management Program, which is the 22 SME Section i IWL Concrete Containment Inspection 23 regime. We disclosed three reports each from around 24 2000, another 2005 or 2006, and then most recently 25 2010, three reports for each unit.
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1065 1 Those are the detailed inspection results 2 of the external portion of the containment.
3 Basically, it's my understanding, it's equivalent to 4 a VT3 examination which requires high-strength lights, 5 high-strength binoculars, comparison of historical 6 results by trained qualified inspectors.
7 This is a program that's required, Entergy 8 is required to do, and those are the results that are 9 documented in the inspection reports, which includes 10 monitoring and trending, as appropriate.
11 ADMINISTRATIVE JUDGE McDADE: Okay.
12 ADMINISTRATIVE JUDGE WARDWELL: This is 13 Judge Wardwell. Those are inspections and they are 14 generated in reports, and they're required as part of 15 your current licensing basis. Is that a fair 16 assessment?
17 MR. BASSETTE: Yes, Your Honor.
18 ADMINISTRATIVE JUDGE McDADE: Okay. And, 19 Mr. Sipos, from what I understand from the settlement 20 agreement is based on those reports, the State no 21 longer challenges the present structural integrity of 22 the Indian Point Reactor Containment or the adequacy 23 of the measures Entergy currently proposes to employ 24 to insure continued structural integrity of Indian 25 Point Reactor containment. Is that correct, Mr. Sipos?
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1066 1 MR. SIPOS: Your Honor, I guess I'd like to 2 elaborate on the State's position, if I may. The 3 contention that the State filed back in November of 4 2007 raised concerns about the water cement ratio at 5 the time of initial fabrication of the concrete 6 containment. And documents have been produced, so I'm 7 referring to Contention 24 on pages 221-223 of our 8 petition.
9 Documents have been produced during this 10 proceeding that show that the compressive strength 11 has, or at that time did exceed 3,000 psi as Mr.
12 Bassette has summarized. And it has also become 13 apparent to the State that Entergy has engaged in 14 inspections of the concrete domes. And the results of 15 those inspection reports have been shared and given to 16 the State. These are retrospective inspections over 17 the last decade or so, as Mr. Bassette said. And that 18 Entergy has committed on a going forward basis to 19 continue those inspections, as it has said in its 20 license renewal application, in the Aging Management 21 Plan, as now exists in the proceeding.
22 And given those -- given that information, 23 given the information about the compressive strength 24 and Entergy's agreement to conduct tests and to have 25 -- produce those results of the tests that have NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1067 1 already been done, and to do so in the future, State 2 reached the conclusion that the objective that it 3 sought in this contention had been sufficiently 4 satisfied.
5 And if I could go a little bit further, I 6 guess standing where we are today, I am not 7 necessarily prepared to say more than that, but that 8 Entergy has done tests in the last decade, and they 9 have represented, or they have stated that they will 10 do so in the future.
11 ADMINISTRATIVE JUDGE McDADE: And, Mr.
12 Turk, let me just ask. As I under --
13 ADMINISTRATIVE JUDGE WARDWELL: Can we just 14 stay with Mr. Sipos, if we might? This is Judge 15 Wardwell speaking again.
16 ADMINISTRATIVE JUDGE McDADE: Yes.
17 MR. SIPOS: Yes, Your Honor.
18 ADMINISTRATIVE JUDGE WARDWELL: I thought 19 I understood you, and then you kind of confused me at 20 the end. Your contention reads that the license 21 renewal application fails to comply with the 22 requirements because the Applicant has not certified 23 the present integrity of the containment structures, 24 has not committed to an adequate Aging Management 25 Program to insure the continued integrity of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1068 1 containment structures. That's your contention in 24.
2 MR. SIPOS: Yes.
3 ADMINISTRATIVE JUDGE WARDWELL: When you 4 just said that you were limiting, or you weren't going 5 to go any further than just saying the tests initially 6 show that the strength was there, and that the 7 inspections and tests that have been conducted will be 8 moving forward, and you're comfortable with at least 9 the water cement issue that you raised. But are you, 10 in fact, satisfied that the contention as worded has 11 been satisfied such that you won't be bringing up 12 anything else in regards to this issue?
13 MR. SIPOS: The State in this proceeding --
14 should the proposed settlement be accepted by Your 15 Honors, the State would not be bringing up anything 16 else in this proceeding concerning the concrete 17 containment structures.
18 ADMINISTRATIVE JUDGE WARDWELL: All right.
19 So, you're completely satisfied that New York State 24 20 has been resolved as far as you are concerned because 21 of the concrete test when it was initially placed, the 22 testing that has occurred since, and the commitment to 23 continue that testing through the period of extended 24 operations. Is that a fair assessment?
25 MR. SIPOS: Yes, Your Honor. We had NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1069 1 concerns -- the State had concerns initially about the 2 initial fabrication, the water cement ratio. There 3 have been documents produced that reflect that 4 actually the compressive strength as the concrete 5 cured following its initial pouring and setting 6 exceeded the 3,000 psi threshold. And the State has 7 seen evidence that Entergy has engaged in a inspection 8 program, and that it's committed to doing that in the 9 future under the AMP, and the reference to the ASME 10 standard going forward.
11 ADMINISTRATIVE JUDGE McDADE: Judge 12 Wardwell, anything further?
13 ADMINISTRATIVE JUDGE WARDWELL: Not right 14 at the moment.
15 ADMINISTRATIVE JUDGE McDADE: Okay, thank 16 you. Mr. Turk, it's my understanding that there is a 17 requirement under 10 CFR 50.55(a), Subparts F and G 18 for continued inspection and testing as part of the 19 licensing basis that would continue on during any 20 period of extended operation. Is that consistent with 21 the Staff's view?
22 MR. TURK: Yes, Your Honor. The 23 requirements of the Part 50 license continue in effect 24 after license renewal to the renewed license.
25 ADMINISTRATIVE JUDGE McDADE: Okay. And NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1070 1 could you summarize, or would it be better to have 2 Entergy summarize for the record the nature of the 3 ongoing testing and inspection that would be done 4 under Subparts F and G of 50.55(a)?
5 MR. TURK: Your Honor, I would defer to 6 Entergy for that. But also, when possible I'd like to 7 make a statement about the Staff's position on the 8 contentions. I can hold on that.
9 ADMINISTRATIVE JUDGE McDADE: Okay. Let me 10 just get -- Mr. Bassette, are you in a position to 11 respond, or would one of the other individuals with 12 you be in a better position to?
13 MR. BASSETTE: Well, Your Honor, we did say 14 the inspection reports that we disclosed to you are 15 part of that program, so perhaps I don't understand 16 your more broader question.
17 ADMINISTRATIVE JUDGE McDADE: Okay. Well, 18 the documentation we've received obviously is 19 historical. And, specifically, with regard to Reactor 20 2, the inspection reports from 2000, 2006, 2010; from 21 Unit 3, 2001, 2005, 2009. Under the regulation you'll 22 have a continuing obligation to test and inspect the 23 facility. And what I was wondering is, if you could 24 for the record just summarize briefly what that 25 ongoing inspection and testing will consist of over NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1071 1 the next 20 years if the license renewal were to be 2 granted.
3 MR. BASSETTE: Rich, could you jump in 4 here? Mr. Drake.
5 MR. DRAKE: Sure. No, we -- part of the 6 Maintenance Rule, and also the in-service inspection 7 requirements that we've committed to, we do visual 8 inspections every five years at a minimum, and we will 9 continue to do those inspections going forward.
10 ADMINISTRATIVE JUDGE McDADE: Okay.
11 Specifically, as I understand it, ASME Boiler and 12 Pressure Code Section 9, Division 1, Subsection lW(L) 13 is required. And I was wondering if there's someone 14 who just for the record would be able to summarize, 15 encapsulate briefly what that entails. I'm not 16 looking for the ability to actually do the inspection 17 after you explain it, but just a very brief summary.
18 Mr. Drake is the person to do it?
19 MR. DRAKE: Yes. The Section 11 of the 20 Boiler Pressure Vessel Code which is the in-service 21 inspection, and this is Subsection IWL, which is the 22 concrete containment inspections. They are performed 23 under my direction. I'm the responsible engineer for 24 the program. I'm a licensed professional engineer in 25 the State of New York.
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1072 1 We have a team of engineers who are 2 familiar with concrete inspection, and we have trained 3 inspectors who are qualified to the Section i1 4 requirements for inspection. Those inspections are 5 done to meet the inspection criteria where you have to 6 be able to certify that you can with proper lighting 7 and inspection techniques visually see the proper 8 crack or line size from a certified distance. Or if 9 you're not in that certified distance with the proper 10 lighting that remotely with enhancement techniques can 11 achieve the same requirement.
12 We do all accessible surfaces of the 13 containment, and we visually look for any anomalies or 14 degradation. And we take pictures, photographic, and 15 we document those items for trending to see if there 16 is any trend for degradation, et cetera.
17 ADMINISTRATIVE JUDGE McDADE: Okay.
18 MR. DRAKE: And currently we've been 19 monitoring and we have not seen any degradation that 20 has shown any adverse trending.
21 ADMINISTRATIVE JUDGE McDADE: And what do 22 you do if you would find degradation?
23 MR. DRAKE: Oh, we would take corrective 24 actions. We would do repairs in accordance with 25 Section 11. That's inspection and repair process.
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1073 1 And we would do them in accordance with that 2 procedure.
3 ADMINISTRATIVE JUDGE McDADE: And if there 4 were a period of extended operation how often would 5 these inspections occur with each of the two units?
6 MR. DRAKE: They would continue at the same 7 periodicity. Like I said, five years or if required 8 sooner, as needed.
9 ADMINISTRATIVE JUDGE McDADE: Okay. In 10 other words, if there were to begin to be a 11 demonstration of degradation, then the inspection 12 interval would be decreased.
13 MR. DRAKE: We would -- as part of the 14 program it would be -- the frequency would be 15 increased. And, accordingly, we also do some 16 inspections if we were to do like an in-service 17 integrated leak rate test of the containment, we would 18 do an inspection before and after that also.
19 ADMINISTRATIVE JUDGE McDADE: Okay. Now, 20 are the results of these inspections available for 21 review by the NRC, or are they submitted to the NRC?
22 MR. DRAKE: They are -- for the IWL 23 inspections, we -- they're available to the NRC. We 24 also have them reviewed by our ANI certified 25 inspectors also.
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1074 1 ADMINISTRATIVE JUDGE McDADE: Okay. And 2 these are contractors for Entergy.
3 MR. DRAKE: Yes, they're independent 4 contractors that oversee all that, also.
5 ADMINISTRATIVE JUDGE McDADE: Okay. And 6 these inspection reports would then be subject to 7 review by the inspectors by the NRC at the facility.
8 MR. DRAKE: Yes.
9 ADMINISTRATIVE JUDGE McDADE: Okay. Now --
10 okay. Mr. Turk, you were starting to say that you 11 wanted to comment with regard to the settlement. And 12 one of the things also, Mr. Turk, I would want you to 13 comment on as part of that is as part of the current 14 operating basis there's a requirement for these 15 continued inspections. As part of the settlement 16 agreement there's also a requirement that the results 17 of these inspections be forwarded to, provided to the 18 State of New York. And one of the questions I have is 19 how that would be enforced. The inspections 20 themselves under the current operating basis, what 21 would be the Staff's position as to the authority of 22 the Board to impose the obligation to submit these 23 reports to New York as license conditions, Mr. Turk?
24 MR. TURK: Thank you, Your Honor. I wanted 25 to note that the Staff's review of issues related to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1075 1 this contention can be found in our Safety Evaluation 2 Report, Section 3.0.3.3.2. And that begins at page 3-3 153 of the Staff's SER.
4 The conclusions that the Staff reached as 5 found at page 3-166, in which the Staff stated after 6 having gone through all of the relevant documentation 7 in the license renewal application and the Applicant's 8 responses to Staff's request for additional 9 information, at page 3-166 the Staff concluded that on 10 the basis of its technical review of the Applicant's 11 containment in-service inspection program, and the 12 review of the Applicant's responses to Staff RAIs, the 13 Staff concluded that the Applicant has demonstrated 14 that the effects of aging will be adequately managed 15 so that the intended functions will be maintained 16 consistent with the CLB for the period of extended 17 operation as required by 10 CFR 54.21(a)3.
18 And the Staff continued to note that they 19 had reviewed the new FSAR supplement for this program 20 and concluded that it provides an adequate summary 21 description of the program as required by 10 CFR 22 54.21(d).
23 With me in the room as we speak today is 24 Kimberly Greene who was the Project Manager 25 responsible for safety issues at the time the SER was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1076 1 prepared. She coordinated the preparation of the SER 2 with Staff experts. Also in the room with me is, as 3 I mentioned when we began the conference call, Abdul 4 Sheikh, who is a Senior Structural Engineer in the 5 Office of Nuclear Reactor Regulation. The Branch in 6 particular is the Aging Management of Structures, 7 Electrical and Systems. Also in the room is his 8 supervisor, Dr. Rajender Auluck.
9 And before we began the conference call, 10 I had asked the Staff to look at the documentation 11 provided by New York State at the request of the Board 12 to be sure that they are satisfied that there are no 13 outstanding issues or concerns that they have that may 14 have been raised by that documentation. And they 15 confirmed to me that they are satisfied that the 16 contention may be disposed of without further 17 involvement by the parties or the Board.
18 With respect to your specific question, 19 Your Honor, the settlement agreement is a two-party 20 agreement. It is between New York State and Entergy.
21 The agreement is not something that the Staff would 22 want to be responsible for enforcing. We would not 23 want to freight the license with conditions that we do 24 not deem to be necessary for protection of public 25 health and safety, or for the environment.
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1077 1 However, the Board upon issuing an order 2 which would incorporate the terms of the settlement 3 agreement would effectively create a record that could 4 be enforced in court separately by New York State, but 5 it is not something that we would to have in the 6 license in order for the Staff to enforce it.
7 ADMINISTRATIVE JUDGE McDADE: Okay, thank 8 you, Mr. Turk. Mr. Sipos, what is the State's view as 9 to 'how this requirement would be enforceable, the 10 continuing reporting to the State with these 11 inspection reports?
12 MR. SIPOS: Yes, Your Honor. First of all, 13 it would be enforceable as an agreement amongst or 14 between Entergy and the State of New York. But beyond 15 that, it would -- it is also the State's view that it 16 would be enforceable as part of a Board order entered 17 in this proceeding. And that the CFR provision is 18 appropriately flexible and broad for Your Honors, and 19 approaches a Federal District Court's necessary and 20 proper authority or jurisdiction that such a court 21 might choose to exercise in its discretion, so that in 22 addition to it being an agreement, a contract between 23 Entergy and the State, it would also -- and, again, 24 this is all hinged on should Your Honors approve the 25 settlement, without being presumptuous about that, but NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1078 1 if that were the case, it would -- that Your Honors, 2 as the Board -- as the constituted Board would have 3 the authority to enter that under the provisions of 4 the CFR.
5 ADMINISTRATIVE JUDGE McDADE: Okay. Mr.
6 Bassette, what is Entergy's view? And, obviously, if 7 we approve the settlement agreement we have no reason 8 to believe that Entergy wouldn't, in fact, comply.
9 But in the event somewhere down the road 10, 15 years 10 if the license renewal were granted, Entergy may no 11 longer be the operator of Indian Point, how would the 12 agreement be enforced? Would the State be able --
13 would it be appropriate for us to just simply set 14 this as a license condition that would, therefore, be 15 self-enforcing, or would the State need to go to court 16 to enforce it? And, if so, what court would it be, 17 the Superior -- the Supreme Court of the State of New 18 York, or would it be a Federal District Court? You 19 know, what would Entergy's view of the most 20 appropriate enforcement mechanism?
21 MR. BASSETTE: You asked several questions 22 there, Your Honor. I'll try to take them one at a 23 time.
24 As we noted, the inspections we -- the 25 results of the inspections we've committed to provide NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1079 1 to New York are required by our operating license, and 2 will continue into the continued -- should be granted 3 license renewal into the period of extended operation.
4 We are required to do those inspections, so there 5 needs to be no further commitment for us to do the 6 inspections.
7 What we're just talking about is providing 8 the results to New York. Like any agreement that 9 Entergy has with the State on other matters where we 10 provide them other periodic information, we believe 11 this agreement could be enforced that way.
12 We have -- we agree with the Staff that a 13 license condition is not appropriate here, because it 14 really doesn't address significant health and safety 15 issues. And should the parties, let's say New York 16 and Entergy in the future agree for some reason to an 17 amendment of this commitment, which I don't foresee, 18 that would require a license amendment change, which 19 would just be far too cumbersome.
20 We also researched numerous settlement 21 agreements over the years and we found no indication 22 where any of those routine agreements have 23 incorporated into any license conditions.
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1080 1 as part of license renewal. Those commitments are, 2 have been, and are being incorporated into Entergy 3 procedures for their Commitment Tracking Program. We 4 would do the same here, Your Honor. We would treat 5 this like a license renewal commitment included in 6 procedures. The company has committed and agreed as 7 part of this settlement agreement should we -- should 8 Entergy sell or transfer the ownership, they'll 9 include that in any condition. And those are the 10 routine items that are conducted as part of due 11 diligence.
12 So, we believe this would be enforced like 13 any other agreement, and we would track it like other 14 enforceable license renewal commitments in our 15 procedures, so they're appropriately tracked and 16 complied with.
17 ADMINISTRATIVE JUDGE McDADE: Well, 18 usually, your commitments are commitments to the NRC.
19 And here, you would be making -- there would be a 20 commitment for you to do these inspections and tests, 21 and those results would, as a matter of law, be 22 available at the facility for NRC inspectors to 23 review, and would in the normal course be reviewed by 24 the NRC inspectors. But the State of New York 25 wouldn't have that same authority to review this so, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1081 1 accordingly, you're going to be submitting them to New 2 York so that they can raise any concerns. And my 3 question was just to get clear on the record how this 4 would be enforced. And you're saying it would be 5 enforced like any other. And I'm not really sure what 6 that means.
7 Am I taking it that in the event Entergy 8 or a successor to Entergy failed in this commitment, 9 that there would be no -- that it would be clear from 10 this settlement agreement that the Entergy or its 11 successor would not contest the jurisdiction of either 12 a New York State Court or a Federal District Court to 13 order specific performance?
14 MR. BASSETTE: No, Your. Honor, I don't 15 envision we would contest that. But I can't say what 16 court that would happen in. I have not researched that 17 issue.
18 ADMINISTRATIVE JUDGE McDADE: Well, I guess 19 what I'm saying is -- what I'm looking for is a 20 commitment from Entergy that they wouldn't contest the 21 jurisdiction of any court to issue a specific 22 performance order in the event that either Entergy or 23 some successor of Entergy failed to honor the 24 commitment. And, again, there's no reason to believe 25 that they would. Certainly, the gist of this is that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1082 1 you're going to do the inspections and do the testing.
2 And this is just sort of a crossing the T or dotting 3 the I. So, am I correct that Entergy wouldn't contest 4 the jurisdiction of an appropriate court to --
5 MR. BASSETTE: That's correct, Your Honor.
6 We would not contest the jurisdiction of an 7 appropriate venue to enforce the provisions of this 8 settlement agreement, as approved.
9 ADMINISTRATIVE JUDGE McDADE: And is that 10 satisfactory to the State of New York, Mr. Sipos?
11 MR. SIPOS: Yes, it is. I mean, I think 12 we're making a very clear record here, which is 13 helpful for such enforcement, and we appreciate what 14 Mr. Bassette has just represented on behalf of 15 Entergy.
16 ADMINISTRATIVE JUDGE McDADE: Okay.
17 ADMINISTRATIVE JUDGE WARDWELL: Can I 18 interject a question here. This is Judge Wardwell.
19 ADMINISTRATIVE JUDGE McDADE: Please.
20 ADMINISTRATIVE JUDGE WARDWELL: Mr. Sipos, 21 so previously, you were talking about some Board order 22 that this might be in. You're not worried about that 23 any more, now?
24 MR. SIPOS: Well, Judge Wardwell --
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1083 1 you meant by that.
2 MR. SIPOS: Well, should this proposed 3 stipulation meet Your Honors' acceptance, the State of 4 New York, I guess, would hope that there would be a 5 Board order memorializing what is going on, what has 6 transpired today and leading up to today. And that 7 that would be part of the record of this proceeding, 8 which --
9 ADMINISTRATIVE JUDGE WARDWELL: You would 10 see that would be more than the draft Consent Order 11 that you -- I assumed you agreed to the draft Consent 12 Order. You would envision that being more extensive 13 than what you provided in the Attachment B of the 14 submittals?
15 MR. SIPOS: Not necessarily, Your Honor.
16 And, again, I -- we did -- we certainly agreed to that 17 attachment, Attachment B. Again, I really do not want 18 to seem that I am taking anything for granted. I mean, 19 Your Honors --
20 ADMINISTRATIVE JUDGE WARDWELL: Well, for 21 our discussions let's assume we're going to approve 22 this, so we don't keep talking about assuming we're 23 going to approve it. It'll be simpler. If we don't, 24 that's another issue, but I'm now asking questions 25 assuming we're going to approve it. What do you feel NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1084 1 you need to move forward here, and I want to clarify 2 what you were referring to with some of the items you 3 seem to be elaborating on, and that you would like in 4 our Board order. And it seemed to me more extensive 5 than the draft Consent Order that you agreed to as to 6 what would be needed for your use.
7 MR. SIPOS: Your Honor, I think the fact 8 that this is a proceeding on the record today, and the 9 recitations that have been made would satisfy the 10 State's concerns.
11 ADMINISTRATIVE JUDGE McDADE: And this is 12 Judge McDade. I mean, my concern was just this. I 13 mean, obviously, the Board, if we approve the 14 settlement will incorporate it into an order. However, 15 at the time it would be required to be enforced, if 16 ever, the Board would no longer be constituted and, 17 therefore, would not be in a position to act as an 18 enforcement vehicle. So, therefore, I just wanted to 19 get clear from the parties their view of how this 20 agreement could be enforced after the Board went out 21 of existence. And I --
22 ADMINISTRATIVE JUDGE WARDWELL: Yes, 23 constituted? You and I will probably be alive.
24 ADMINISTRATIVE JUDGE McDADE: Well, let me 25 -- is there anything --
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1085 1 ADMINISTRATIVE JUDGE WARDWELL: The way 2 we're going --
3 ADMINISTRATIVE JUDGE McDADE: Yes, I know.
4 We do run the risk of violating the rule against 5 perpetuities as we go back and looked at our original 6 contention admissibility order was from July of 2008.
7 But in any event, at this point does New York have 8 anything further with regard to the settlement 9 agreement?
10 MR. SIPOS: No, Your Honors, not at this 11 time.
12 ADMINISTRATIVE JUDGE McDADE: Does Entergy?
13 MR. BASSETTE: No, Your Honor.
14 ADMINISTRATIVE JUDGE McDADE: Does the NRC 15 Staff?
16 MR. TURK: One suggestion, Your Honor, 17 which I raise having heard the colloquy with Your 18 Honors and Mr. Sipos.
19 ADMINISTRATIVE JUDGE McDADE: Yes, Mr.
20 Turk.
21 MR. TURK: In preparing for the telephone 22 conference today, I came across several cases in which 23 settlements have been approved. One of them was the 24 Calloway COL proceeding. It's LDP-09-23, in which the 25 Board approved a settlement agreement and terminated NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1086 1 in its entirety the contested proceeding. And I think 2 that's, perhaps, a good example of the type or order 3 that might be entered to dispose of the contention, 4 where the terms of the settlement agreement were 5 referred to, the findings that 10 CFR Section 2.338 6 has been satisfied, and then the settlement agreement 7 was incorporated by reference, perhaps attached to and 8 incorporated by reference. That might be a more 9 appropriate type of order than the Consent Order which 10 New York and Entergy had proposed to you.
11 ADMINISTRATIVE JUDGE McDADE: Okay. Thank 12 you, Mr. Turk. Do any of the other participants in 13 this hearing have anything further? Riverkeeper?
14 MS. BRANCATO: No, Your Honor. Thank you.
15 ADMINISTRATIVE JUDGE McDADE: Clearwater?
16 MS. GREENE: We're complete, Your Honor.
17 ADMINISTRATIVE JUDGE McDADE: Okay.
18 Connecticut, Mr. Snook?
19 MR. SNOOK: We're good with it.
20 ADMINISTRATIVE JUDGE McDADE: Okay. New 21 York Department of Environmental Conservation?
22 MS. MATTHEWS: Nothing further here, Your 23 Honor.
24 ADMINISTRATIVE JUDGE McDADE: Okay. I take 25 it Cortlandt still is not on the line? Okay. Judge NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1087 1 Wardwell, anything further on this issue?
2 ADMINISTRATIVE JUDGE WARDWELL: I have 3 nothing.
4 ADMINISTRATIVE JUDGE McDADE: Judge 5 Lathrop?
6 ADMINISTRATIVE JUDGE LATHROP: I have 7 nothing.
8 ADMINISTRATIVE JUDGE McDADE: Okay. Before 9 we ring off, there's a couple of other matters we did 10 want to take up.
11 First of all, with regard to one of the 12 exhibits that's been submitted, New York 224 and also 13 in that there's a reference to a report that was 14 prepared by Dr. Shepherd, which is New York Exhibit 15 231. What we are looking for is not any explanation, 16 but we are looking for a clarification.
17 If you go to that document, Exhibit 224, 18 between pages 16 and 21 there are various formulas 19 that Dr. Shepherd submitted as part of his testimony.
20 When we print off those formulas, they are very 21 difficult to read. And if we blow them up, they just 22 become more blurred. We can probably guess what they 23 are in context, but rather than guessing, what we 24 would ask is for the State of New York just to submit 25 those formulas again. Again, just print it out larger NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1088 1 so that they can be read. And, also, those formulas 2 appear on Exhibit 231, which was the report that Dr.
3 Shepherd prepared. So, we're not looking to 4 supplement the record, we're not looking for an 5 explanation. All we're looking for is just to make 6 sure that we can read them as they were submitted.
7 ADMINISTRATIVE JUDGE WARDWELL: That's --
8 and they are -- you can't read them visually when 9 pulled off in an electronics form either. So, it's not 10 just the printing, it's the fact that they're blurry 11 in their present existence.
12 MR. SIPOS: Yes, Your Honor. Thank you for 13 bringing that to our attention. This is John Sipos.
14 Absolutely we will promptly look at that and try to 15 submit clear copies of those formulas. Sorry about 16 that, as well.
17 ADMINISTRATIVE JUDGE McDADE: And if you 18 would, just submit it through the electronic hearing 19 docket so that way all of the participants in this 20 proceeding would have a copy of that. I'm sure their 21 eyes will have as difficult a time reading them as 22 our's have.
23 MR. SIPOS: Absolutely, we'll do it via the 24 EIE, Your Honor.
25 ADMINISTRATIVE JUDGE McDADE: Okay. And the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1089 1 last thing is when we had our last status conference, 2 there was still an issue with regard to mandatory 3 disclosures that the parties have had further 4 discussions. We've heard back from you in writing, 5 and the parties were hopeful of resolving it. And in 6 the event you were unable to set a date for the filing 7 of any motion to compel, I was wondering if you could 8 update us on the status of those conversations. Have 9 the issues with regard to mandatory disclosures been 10 resolved, Mr. Sipos?
11 MR. SIPOS: At this date, not yet, Your 12 Honor. We submitted a status report, or a report as 13 required on the 6" of January, and I need to continue 14 conversations with Mr. Turk about that. It may be, as 15 I said, in the letter that could resolve it, but I 16 certainly would not want to represent today that that 17 is necessarily the case, that that is done yet.
18 ADMINISTRATIVE JUDGE McDADE: So, you're 19 still hopeful that you will be able to resolve it, but 20 you haven't resolved it yet.
21 MR. SIPOS: Yes, Your Honor, we have not 22 resolved it yet.
23 ADMINISTRATIVE JUDGE McDADE: Okay. Mr.
24 Turk, are you still hopeful that you will be able to 25 resolve it?
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1090 1 MR. TURK: Your Honor, I'm not aware of any 2 conflict that we have. We believe we fulfilled our 3 mandatory disclosure obligations. What Mr. Sipos is 4 bringing to us is a more fundamental dispute as to the 5 nature of Staff's hearing file and mandatory 6 disclosure obligations in this and any proceeding.
7 ADMINISTRATIVE JUDGE McDADE: Mr. Turk --
8 MR. TURK: We have --
9 ADMINISTRATIVE JUDGE McDADE: I understand 10 that, Mr. Turk, and I understand, obviously, that the 11 Staff when they made their mandatory disclosures would 12 take the position that they've done everything that 13 they are required to do, obviously. As I understand 14 it, New York had asked for additional documentation 15 that the Staff initially did not believe were part of 16 the -- its obligations under the mandatory 17 disclosures. And as I understood it, we weren't 18 necessarily looking for a commitment from the Staff 19 one way or the other to change its policies with 20 regard to the scope of mandatory disclosures, but it 21 was whether or not the Staff would be able in good 22 faith to satisfy the request for additional 23 information from the State of New York so that we 24 wouldn't have to actually litigate what the scope of 25 the mandatory disclosures are.
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1091 1 You know, we're not suggesting, and I 2 don't think New York has suggested that the Staff has 3 intentionally violated its obligations; quite the 4 opposite, that the Staff has made a good faith effort 5 to turn over everything that it believes is 6 appropriate and necessary to turn over. But, 7 nevertheless, the State of New York has requested some 8 additional documentation.
9 And, again, we're not looking for a 10 precedent-setting commitment on the part of the Staff.
11 What we're looking for is just to see whether or not 12 in the spirit of cooperation that has occurred 13 throughout this litigation so far, the Staff would be 14 able to accommodate New York's request without having 15 to go to a motion to compel.
16 So, along those lines we would ask you to 17 continue to have discussions and hopefully obviate the 18 need for us to have to resolve this through a 19 contested proceeding.
20 MR. TURK: I understand your point, Your 21 Honor. My point was that the discovery dispute is not 22 about specific documents that the Staff has withheld.
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1092 1 into the hearing file when they're already available 2 in ADAMS. And it goes to an interpretation of 3 regulations.
4 I'll be happy to continue my discussions 5 with Mr. Sipos. I've also made him an offer. He told 6 me he wasn't able to find a certain type of document.
7 I did a search in ADAMS. I reported to him what my 8 search was, what I found, and invited him to duplicate 9 the search. I also invited him to send us a limited 10 document request, if there's something in particular 11 that he wants us to search for, but I have not heard 12 back from him on either of those proposals.
13 So, in answer to your question, I'm 14 certainly willing to try to resolve this without 15 requiring further litigation of the issue or 16 involvement of the Board, but the dispute is of such 17 a fundamental nature that there's -- I don't know 18 whether Mr. Sipos intends to continue his quest at 19 that broad of category of documents that he's referred 20 to or not. But I'm happy to continue our discussions.
21 ADMINISTRATIVE JUDGE McDADE: Okay. In that 22 regard, Mr. Turk, as an individual who's had long 23 experience with the NRC and with ADAMS, I start with 24 a basic assumption, that your facility to find 25 documents in ADAMS would exceed that of most people, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1093 1 if not all people outside the Agency. So, to the 2 degree that you can be of assistance to satisfy to Mr.
3 Sipos that he and the State of New York have had 4 access to every document that they believe to be 5 relevant, whether it is necessarily part of the 6 hearing file or not, that would tend to facilitate our 7 moving forward on this. So, I would urge you to 8 continue your conversations, and I guess we look 9 forward to not receiving a motion to compel very 10 shortly.
11 Are there any other things that any of the 12 parties wish to take up before we move on? First of 13 all, Judge Wardwell?
14 ADMINISTRATIVE JUDGE WARDWELL: I do not 15 have anything.
16 ADMINISTRATIVE JUDGE McDADE: Judge 17 Lathrop?
18 ADMINISTRATIVE JUDGE LATHROP: I do not 19 have anything.
20 ADMINISTRATIVE JUDGE McDADE: Mr. Bassette 21 for Entergy, anything further you'd like to take up at 22 this time?
23 MR. BASSETTE: No, Your Honor, we don't 24 have anything. Thank you.
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1094 1 the NRC?
2 MR. TURK: Yes, Your Honor, unfortunately 3 I have one other matter that I need to bring to your 4 attention.
5 As Your Honors know, the intervenors have 6 filed numerous exhibits, or proposed exhibits along 7 with their testimony and Statements of Position. We've 8 been going through the exhibits and the testimony, and 9 we have identified a number of areas where we believe 10 motions in limine will be necessary.
11 I don't want to duplicate the efforts of 12 Entergy. I had a preliminary conference call with 13 Entergy's attorneys. They informed me that they are 14 considering several motions in limine. I don't want to 15 duplicate what they're filing. I don't see that filing 16 additional paper would help to expedite the 17 proceeding, so I'm hoping to be able to coordinate 18 where the Staff will file motions that address issues 19 which Entergy is not filing.
20 But then I look at the schedule, and I'm 21 concerned that once motions in limine are filed, that 22 there won't be time for the Board to rule on them 23 before the parties have to finalize their testimony, 24 parties meaning Entergy and the Staff. Basically, we 25 won't have the benefit of a Board ruling on what we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1095 1 believe to be very important motions in limine.
2 So, I wanted to bring to your attention 3 that the Staff would like to discuss with other 4 parties the potential for adjusting the schedule for 5 filing testimony to allow sufficient time for the 6 Board to rule on motions in limine.
7 ADMINISTRATIVE JUDGE McDADE: Okay. Well, 8 I -- this is Judge McDade again. At this point, 9 there's not a lot that I can add other than to 10 indicate if you wish to speak with the other parties 11 and discuss that, to go ahead and do that. And then 12 if there is any motion filed with the Board to alter 13 the schedule, we would address that at the time.
14 I would just sort of generally throw out 15 something. Having a long history of litigation, not 16 administrative litigation, motions in limine were most 17 useful when the information was going to be sent to a 18 jury, and you would limit the amount of extraneous, 19 irrelevant, immaterial information that would go to a 20 jury who then would not be able to put the appropriate 21 weight or no weight on that information.
22 One -- and let me just say for myself, 23 when a motion in limine is filed and the same judge 24 who is ruling on the motion in limine is also going to 25 be ruling and making decisions based on the evidence, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1096 1 one questions whether or not that does anything other 2 than just simply highlight irrelevant information to 3 the Board and give it greater weight. Failure to file 4 a motion in limine certainly doesn't insulate argument 5 that the information should be given no weight.
6 All of that said, I guess one could draw 7 from the conclusion that I would think the practice of 8 filing motions in limine should be kept to its minimum 9 given the nature of this particular proceeding as a 10 Subpart L proceeding. But with that as sort of a 11 general introduction, let me suggest to the parties, 12 and obviously it would be helpful for any motions in 13 limine for the Staff and Entergy to coordinate that so 14 you're not duplicating effort and requiring the Board 15 to make very -- several very similar decisions, trying 16 to figure out what the difference is between your 17 motion and Entergy's motion, or any of the other 18 parties. But I would urge you to do that as -- and I 19 realize the volume of materials that you have 20 presented with are significant, but would urge you to 21 do that, and to advise the Board as quickly as 22 possible whether or not you anticipate filing motions 23 in limine. And if so, if there was a consensus among 24 the parties with regard to a modification of the 25 schedule, or alternatively of how soon the parties, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1097 1 specifically any moving party, would be able to move 2 for a change in the current schedule.
3 I sort of joked a little bit earlier that 4 we ran the risk of violating the law against -- the 5 rule against perpetuities. We would like to move 6 forward with this, and to get to a hearing with -- I 7 hate to use the term all deliberate speed, but 8 certainly would like to do so. So, if there are going 9 to be any motions for an extension of time, they 10 should be filed sooner as opposed to later.
11 Anything further, Mr. Turk?
12 MR. TURK: Yes, Your Honor. I just want to 13 point out that the hazard that we face if we don't 14 file motions in limine is that testimony will have 15 been filed by one party, and unless countered that 16 will be the only evidence on the record on an issue 17 that we believe to be outside the scope of the 18 contention, or beyond the expertise of the witness.
19 So, a motion in limine, even though I understand that 20 it's not a jury practice, it is important in order to 21 establish a proper record that the parties know what 22 are the issues that they must address in their 23 testimony. And although, as you may expect, the Staff 24 has prepared its testimony before receiving the 25 intervenors' testimony, we are now adjusting that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1098 1 testimony to include rebuttal. But when we see that 2 the intervenors have raised various points that we 3 believe are outside the scope of the contention, we 4 have to make a decision, do we go into our rebuttal 5 testimony to address that, or do we reach a legal 6 conclusion that no, that is beyond the scope, and we 7 will not devote the resources to addressing it?
8 So, the motion in limine is a very 9 important tool in terms of scoping the evidence that 10 will be on the record in the proceeding. Even though 11 I understand Your Honor can disregard evidence that it 12 believes it need not credit or give any weight to, but 13 in terms of what we are required to file, it's an 14 important threshold.
15 ADMINISTRATIVE JUDGE McDADE: I understand 16 your position, Mr. Turk. And all I'm suggesting is 17 certainly in those areas where it is a close issue, 18 one can understand your desire to file a motion in 19 limine. But that doesn't mean that everything that is 20 -- now, if you believe something is patently 21 immaterial, or does not have the capacity to affect 22 the Board's decision, it doesn't necessarily mean that 23 every word said by everybody needs to be addressed.
24 But, obviously, you have to make your own judgments 25 representing your client in that regard.
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1099 1 MR. TURK: I fully agree with you, Your 2 Honor. And we wouldn't be thinking of filing very 3 enormous motions. We won't go after every word. We're 4 more thinking in terms of scope of issues to be 5 addressed.
6 ADMINISTRATIVE JUDGE McDADE: Anything 7 further, Mr. Turk, at this point?
8 MR. TURK: No, Your Honor.
9 ADMINISTRATIVE JUDGE McDADE: Okay.
10 Anything further from any -- Judge Lathrop, Judge 11 Wardwell?
12 ADMINISTRATIVE JUDGE WARDWELL: Nope.
13 ADMINISTRATIVE JUDGE LATHROP: No.
14 ADMINISTRATIVE JUDGE McDADE: From any of 15 the other participants?
16 (No response.)
17 ADMINISTRATIVE JUDGE McDADE: Okay, 18 apparently not. We will terminate this status 19 conference. Thank you very much, and we will get an 20 order out. If anybody wishes to supplement and 21 specifically we will pass on to Cortlandt if they wish 22 to supplement anything that was said here today, they 23 should do so no later than Wednesday, January 2 5 th 24 And we will get our order out directly after that.
25 Thank you. This hearing is now terminated - this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1100 1 status conference is terminated.
2 (Whereupon, the proceedings went off the 3 record at 2:37:22 p.m.)
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission Proceeding: Entergy Nuclear, Indian Point Pre-Hearing Conference Docket Number: 50-247-LR and 50-286-LR ASLBP Number: 07-658-03-LR-BDO1 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.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 wwwnealriross v .com