ML12192A159
| ML12192A159 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 07/09/2012 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| RAS 22963, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, NRC-1734 | |
| Download: ML12192A159 (53) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Entergy Nuclear Operations Indian Point Plant Units 2 and 3 Docket Number:
50-247-LR, 50-286-LR ASLBP Number:
07-858-03-LR-BD01 Location:
teleconference Date:
Monday, July 9, 2012 Work Order No.:
NRC-1734 Pages 1141-1192 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433
1141 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 UNITED STATES OF AMERICA 1
NUCLEAR REGULATORY COMMISSION 2
+ + + + +
3 ATOMIC SAFETY AND LICENSING BOARD PANEL 4
+ + + + +
5 STATUS CONFERENCE 6
x 7
In the Matter of: : Docket Nos.
8 ENTERGY NUCLEAR : 50-247-LR, 50-286-LR 9
OPERATIONS, INC. :
10 (Indian Point Nuclear : ASLBP No.
11 Power Generating Units : 07-858-03-LR-BD01 12 2 and 3) :
13
x 14 Monday, July 9, 2012 15 Via teleconference 16 17 BEFORE:
18 LAWRENCE G. McDADE, Chairman 19 MICHAEL F. KENNEDY, Administrative Judge 20 RICHARD E. WARDWELL, Administrative Judge 21 22 23 24 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 APPEARANCES:
1 On Behalf of Entergy, Inc.:
2 PAUL M. BESSETTE, ESQ.
3 JONATHAN M. RUND, ESQ.
4 KATHRYN M. SUTTON, ESQ.
5 of:
Morgan, Lewis & Bockius, LLP 6
1111 Pennsylvania Avenue, NW 7
Washington, D.C. 20004 8
(202)739-5796 (Bessette) 9 10 On Behalf of the Nuclear Regulatory Commission:
11 SHERWIN E. TURK, ESQ.
12 BRIAN HARRIS, ESQ.
13 BETH MIZUNO, ESQ.
14 DAVID ROTH, ESQ.
15 of:
Office of the General Counsel 16 Mail Stop - O-15 D21 17 U.S. Nuclear Regulatory Commission 18 Washington, D.C. 20555-0001 19 (301)415-1533 (Turk) 20 21 22 23 24 25
1143 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 On Behalf of the State of New York:
1 JOHN J. SIPOS, ESQ.
2 JANICE A. DEAN, ESQ.
3 of:
Office of the Attorney General 4
of the State of New York 5
The Capitol 6
State Street 7
Albany, New York 12224 8
9 On Behalf of the State of Connecticut:
10 ROBERT D. SNOOK, ESQ.
11 of:
Office of the Attorney General 12 State of Connecticut 13 55 Elm Street 14 PO Box 120 15 Hartford, CT 06141 16 17 On Behalf of Riverkeeper:
18 PHILLIP MUSEGAAS, ESQ.
19 DEBORAH BRANCATO, ESQ.
20 of:
Riverkeeper, Inc.
21 20 Secor Road 22 Ossining, NY 10562 23 24 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 On Behalf of Clearwater:
1 MANNA JO GREENE 2
KARLA RAIMUNDI 3
of:
Hudson River Sloop Clearwater, Inc.
4 724 Wolcott Avenue 5
Beacon, NY 12508 6
7 On Behalf of Cortlandt:
8 VICTORIA SHIAH TREANOR, ESQ.
9 ADAM STOLOROW, ESQ.
10 of:
Sive, Paget & Riesel, P.C.
11 460 Park Avenue 12 New York, NY 10022 13 (212)421-2150 (Treanor) 14 15 ALSO PRESENT:
16 MIKE WENTZEL, NRC 17 18 19 20 21 22 23 24 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 P R O C E E D I N G S 1
(1:37 p.m.)
2 CHAIRMAN McDADE: Okay. We are on the 3
record in the matter of Entergy Nuclear Operations, 4
Inc. Indian Point Nuclear Power Generating Units 2 and 5
3, Docket numbers 50-247-LR and 50-286-LR.
6 We are here to go over a number of 7
different matters and we might as well just get 8
started first of all by having the parties introduce 9
themselves. First of all from Entergy, who is on the 10 line?
11 MR. BESSETTE: Your Honor, this is Paul 12 Bessette and I have with me John Rund and I believe my 13 colleague Kathryn Sutton may be on the line from a 14 different location.
15 MS. SUTTON: That's correct. Kathryn 16 Sutton here.
17 CHAIRMAN McDADE: Okay. Good afternoon, 18 Ms. Sutton.
19 From the NRC Staff, Mr. Turk?
20 MR. TURK: Yes, Your Honor, Sherwin Turk.
21 With me are David Roth, Beth Mizuno, and Brian Harris, 22 and also our Environmental Project Manager Mike 23 Wentzel is here.
24 CHAIRMAN McDADE: Okay, thank you Mr.
25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 Turk. From New York?
1 MR. SIPOS: Good afternoon, Your Honor, 2
this is John Sipos from Albany and I believe Attorney 3
General Janice Dean is on in New York City.
4 MS. DEAN: Yes.
5 CHAIRMAN McDADE: Is that affirmative, Ms.
6 Dean?
7 MS. DEAN: Yes, Your Honor.
8 CHAIRMAN McDADE: Okay, from Riverkeeper?
9 MR. MUSEGAAS: Yes, Your Honor, this is 10 Phillip Musegaas from Riverkeeper. Musegaas is M-U-S-11 E-G-A-A-S and I am here with Deborah Brancato.
12 CHAIRMAN McDADE: Okay, thank you. From 13 Clearwater?
14 MS. GREENE: Yes, Your Honor, Manna Jo 15 Greene from Clearwater with Karla Raimundi. And Manna 16 Jo Greene is M-A-N-N-A, J-O, Greene with an E. And 17 Karla with a K and her last name is spelled R-A-I-M-U-18 N-D-I.
19 CHAIRMAN McDADE: Thank you. From 20 Connecticut?
21 MR. SNOOK: Robert Snook, S-N-O-O-K.
22 CHAIRMAN McDADE: From Cortlandt?
23 MS. TREANOR: Good afternoon, this is 24 Victoria Treanor, T-R-E-A-N-O-R and Adam Stolorow is 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 with me, S-T-O-L-O-R-O-W.
1 CHAIRMAN McDADE: Okay, have I hit 2
everybody? Any other party present?
3 Okay, apparently not. And again my name 4
is Lawrence McDade. With me is Judge Wardwell and 5
Judge Kennedy.
6 Let's go through the various matters that 7
we wanted to take up first and at the end we will ask 8
the parties whether or not there are any other matters 9
that they believe need to be taken up at this point.
10 First of all we have a motion from 11 Riverkeeper relating to Riverkeeper contentions EC-3, 12 which has been consolidated with Clearwater contention 13 EC-1. The motion basically asks the Board to hold in 14 abeyance that contention which is currently on track 15 one to be heard in October of 2012, pending settlement 16 negotiations that are represented as having been 17 pending. In response to the motion, Entergy and the 18 NRC Staff filed objections to granting the motion.
19 First of all let me ask of the standpoint 20 from Riverkeeper what are the status of those 21 negotiations at this point in time?
22 MR. MUSEGAAS: Your Honor, this is Phillip 23 Musegaas. We have had preliminary negotiations. They 24 are still, in our opinion, going forward and going 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 well. So we hope to continue to negotiate in good 1
faith as we have. As I outlined in our motion we have 2
had several preliminary discussions and would hope to 3
continue that.
4 So without going into detail which would 5
be the subject of confidential negotiation 6
discussions, I hope that answers your question.
7 CHAIRMAN McDADE: Well the answer is yes 8
and no. Let me pursue it a little bit further.
9 At this point in time, do you have any 10 time table for further meetings and a reasonable 11 estimate by which point you would know whether this 12 would settle or not?
13 MR. MUSEGAAS: We have a -- I will answer 14 briefly and then I would ask if Paul Bessette could 15 answer as well.
16 We are essentially waiting for a response 17 from Entergy. Riverkeeper counsel spoke to Entergy 18 counsel this morning briefly and I believe we are 19 expecting a response from Entergy within the next 20 couple of weeks. I don't want to speak for Mr.
21 Bessette but essentially we are waiting for a response 22 from Entergy to engage in more substantive 23 discussions. And that is -- I would like to give you 24 a more accurate estimate of time but that is the best 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 I can give you at this point.
1 CHAIRMAN McDADE: From the Board's 2
schedule, the item that is due is rebuttal testimony 3
from Riverkeeper. That testimony would have been due 4
three days after the motion was filed back on June 5
29th. What prohibits, at this point, Riverkeeper from 6
filing that rebuttal testimony and then moving forward 7
with settlement discussions? Again, we are not 8
talking about the initial direct testimony which was 9
filed back in December. The reply testimony back the 10 end of March the 29th and 30th. At this point, you 11 have had a few months. Having seen the testimony of 12 the Staff and Entergy, rebuttal is not a regurgitation 13 of the direct testimony but only focusing on 14 differences between your direct testimony and the 15 reply testimony presented by Entergy and the Staff.
16 One would think the rebuttal testimony would be 17 relatively short comparatively.
18 Given the amount of time that you have had 19 to work on it, how would Riverkeeper be damaged if we 20 were to direct it go forward with the rebuttal 21 testimony?
22 MR. MUSEGAAS: Your Honor, we do not 23 believe we would be damaged. If Your Honor decides 24 for us to go forward, we will make our best efforts 25
1150 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 and file rebuttal testimony when you require us to.
1 The larger reason for our motion was because of 2
limited resources and limited witness availabilities 3
leading up to the June 29th deadline, we were simply 4
seeking to put the contention on hold, as you well 5
know.
6 So at this point, you know, we have 7
continued to work on it and we will abide by whatever 8
Your Honor decides in terms of when we need to file.
9 We would respectfully ask if you decide that we need 10 to file in the short-term that we be given 11 approximately a week, if that is possible to file it.
12 Again, that is where we stand.
13 CHAIRMAN McDADE: If we were to grant your 14
- motion, wouldn't that effectively take this 15 contention, Riverkeeper EC-3 off track one and 16 preclude us from hearing it in October? And doesn't 17 that work against Riverkeeper's interest in getting 18 this resolved? Mr. Musegaas?
19 MR. MUSEGAAS: Yes, Your Honor. I'm 20 sorry. I'm considering my response. Thank you.
21 I don't believe that putting it on track 22 two necessarily works against our interest, if that 23 would be the inevitable result, because we have other 24 potential NEPA contentions that are on track two and 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 indeed other contentions that may be heard on that 1
later track. From our perspective, it does not go 2
against our interest to potentially have to litigate 3
that at a later date. But yes, that is --
4 CHAIRMAN McDADE: Okay, Clearwater is also 5
a party on this particular contention, although they 6
have been consolidated. Ms. Greene, do you have 7
anything further to add to what Mr. Musegaas had to 8
say?
9 MS. GREENE: No, Your Honor, we don't.
10 CHAIRMAN McDADE: Okay, Mr. Bessette, will 11 you be responding for Entergy on that?
12 MR. BESSETTE: Yes, I will, Your Honor.
13 CHAIRMAN McDADE: What is your view on the 14 status of the settlement negotiations? Is there a 15 reasonable and let me use the word here probability 16 that this contention would settle before hearing in 17 October?
18 MR. BESSETTE: Well first I think we agree 19 with Mr. Musegaas' description of it. We are going 20 forward, albeit slowly. We have had preliminary 21 discussions and again we appreciate the discussions 22 with all the parties.
23 We anticipate, if there is a potential for 24 solution, we could resolve this before going to 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 hearings. We wanted to emphasize that part of the 1
whole process was that we would proceed with 2
settlement in parallel with going to hearing on this 3
issue. And so we were frankly somewhat surprised that 4
this motion was filed in the first place.
5 That filing has actually put some of the 6
settlement efforts -- delayed some of those efforts.
7 We hope to go forward in the next week or two, our 8
getting back to Riverkeeper. It would be helpful to 9
perhaps have face-to-face meetings in the coming weeks 10 and we should know if we are going to reach a 11 resolution, I would hope, in the next 60 days.
12 CHAIRMAN McDADE: Do you think it would be 13 helpful if we were to assign a settlement judge to 14 this matter? That would be not one of the three 15 judges assigned, a judge who would not be discussing 16 what was discussed during the settlement negotiations 17 with the members of the Board. But do you think it 18 would be helpful to have a judge assigned to 19 facilitate the settlement? First of all, Mr.
20 Bessette?
21 MR. BESSETTE: Your Honor, that may be 22 helpful at some point but at this point I think the 23 parties are in general agreement, again, without going 24 into detail on the issues to be discussed. And I mean 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 at this point I think the parties are working well 1
together but there may be a point where perhaps if we 2
are close but not quite there where a settlement judge 3
could help. And we appreciate that opportunity but I 4
think at this point I don't see the need quite yet.
5 CHAIRMAN McDADE: Okay and let me just 6
leave that out there that in the event Mr. Musegaas or 7
Mr. Bessette you believe that at some point down the 8
road a settlement judge might be helpful in helping 9
you reach an agreement, please notify us and we can 10 try to schedule a status conference to talk about the 11 logistics of that.
12 MR.
BESSETTE: That is greatly 13 appreciated. Thank you, Your Honor.
14 MR. MUSEGAAS: Thank you, Your Honor. And 15 Your Honor, if I may, in further response to your 16 question about the status of negotiations, I would 17 just add my agreement to Mr. Bessette that I do think 18 if we continue to go forward with negotiations that it 19 is possible we could resolve the contention before the 20 hearing date. I didn't make that clear before.
21 CHAIRMAN McDADE: Okay. Mr. Bessette, is 22 it still your position that the rebuttal testimony 23 should be filed and we should move forward to keep EC-24 3 on track one?
25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 MR. BESSETTE: Yes, Your Honor, for the 1
reasons we have stated in our answer. Again, we 2
believe the discussions are moving forward but again 3
they are very preliminary. And because we do think we 4
would decide to reach agreement or not before the 5
hearing, we do not want to jeopardize the current 6
progress ongoing to hearing on this contention.
7 CHAIRMAN McDADE: Okay. Mr. Turk, I have 8
got one quick question of the Staff preliminarily.
9 And the response that you filed on July 5th is titled 10 "NRC Staff's Answer to Riverkeeper's Motion to Hold 11 Contention Riverkeeper EC-3 in Abeyance." It 12 indicates on page two that the parties are due to file 13 their proposed Board questions on all contentions four 14 weeks later on August 29, 2012. That would be a 60-15 day period.
16 And I realize there have been an awful lot 17 of orders and an awful lot scheduling orders filed by 18 the Board in this particular case but my quick reading 19 from our July 2010 scheduling order is that those 20 questions are due 30 days after, not 60 days after.
21 Am I overlooking an order that I signed?
22 MR. TURK: Your Honor, thank you. You 23 raised a very good question that I think would be 24 useful for us to talk about during this conference 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 call.
1 When the initial scheduling order came out 2
in July of 2010 there was a fork in the road. Due 3
dates for Board questions would depend upon whether or 4
not there was any interest in governmental filing. I 5
calculate the dates. Because Connecticut has filed a 6
statement of position that we will need to address in 7
a responsive brief, under the Board's July 2010 order, 8
we are due to file that rebuttal on July 30th, which 9
is by the way also the date we are due to move to 10 strike any rebuttal testimony filed by intervenors.
11 And 30 days later we and all parties are due to file 12 Board questions, any motions for cross-examination, et 13 cetera. That is how I calculate the date. Maybe 14 other parties could comment on that also.
15 MR. BESSETTE: Your Honor, this is Paul 16 Bessette. New York at least, and I don't want to 17 speak for Mr. Sipos, but New York, the NRC, and we 18 have jointly consulted on the schedule because of the 19 various moving pieces and we were in general agreement 20 that the Board questions were due at the end of 21 August, consistent with Mr. Turk's reasoning.
22 CHAIRMAN McDADE: Okay, so you are 23 suggesting that the operative is F3 and that talks in 24 F3 no later than 60 days after the service under 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 paragraph K.2 -- excuse me, K.3. Is that correct?
1 I'm on page 15 of the scheduling order.
2 MR. TURK: Your Honor, this is Sherwin 3
Turk. I'm going to need to run to get a copy.
4 CHAIRMAN McDADE: Why don't we go back --
5 MR. SIPOS: Your Honor, this is John Sipos 6
and if I could add, if I could make a statement while 7
Mr. Turk is obtaining that, I believe it is paragraph 8
K, capital K.3.
9 MR. TURK: Actually, Your Honor, I am 10 looking at my own schedule, I see K.5 as the operative 11 paragraph, which says that K.3 plus 30 as to the date 12 for proposed questions. And as I have written it down 13 in my own list of due dates, it is 30 days after the 14 rebuttal to governmental filings.
15 MR. BESSETTE: That is consistent with 16 Entergy's understanding as well.
17 MR. SIPOS: And I believe Judge -- this is 18 John Sipos again. I believe NRC Staff, Entergy and 19 the State have a similar understanding now about that.
20 ADMIN. JUDGE WARDWELL: But weren't the 21 intervenors -- This is Judge Wardwell. Weren't the 22 intervenors' rebuttal submitted on June 29th? Which 23 would make the date for the proposed questions as July 24 30th.
25
1157 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 MR. TURK: No, Your Honor. That is the 1
date that we would be filing motions in limine on the 2
rebuttal testimony. That is how I read it, Sherwin 3
Turk. And also the date -- July 30th is also the date 4
that we would file our --
5 ADMIN. JUDGE WARDWELL: -- in regards to 6
the scheduling of the proposed questions.
7 MR. TURK: I'm sorry. I missed that, Your 8
Honor.
9 ADMIN. JUDGE WARDWELL: Where do you see 10 the motions in limine coming into play in regards to 11 the scheduling for the proposed questions as outlined 12 in the scheduling order? And I don't have it in front 13 of me so that is why I am asking that.
14 MR. TURK: Working on getting a copy of 15 the order in front of us, Your Honor. It will take us 16 a moment.
17 CHAIRMAN McDADE: Okay, just sort of 18 reading through the order, in K.3 it says the 19 intervenors may but need not submit a revised 20 statement of position and rebuttal testimony. If they 21 do, they are to submit their revised statement of 22 position and rebuttal testimony no later than 60 days 23 after service under paragraph K.2. Likewise, 24 interested government agencies may submit testimony 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 and supporting affidavits and exhibits no later than 1
60 days after the submissions of Entergy and the NRC 2
Staff under K.2.
3 So under both of those, the rebuttal and 4
the testimony from interested government agencies 5
would come in 60 days after the testimony of Entergy 6
and the Staff, which in this case would be March 29th, 7
March 30th.
8 We then go down to paragraph K.5 --
9 MR. BESSETTE: Your Honor, if I may 10 interrupt, we were also focusing on the last sentence 11 in that paragraph. If interested government entities 12 submit written statements of position or written 13 testimony, rebuttal may be submitted within 30 days of 14 such contention -- of such --
15 COURT REPORTER: I'm sorry. This is the 16 Court Reporter. Who was speaking?
17 MR. BESSETTE: That's Paul Bessette.
18 COURT REPORTER: Thanks a lot.
19 CHAIRMAN McDADE: Okay. As I understand 20 it then, the position of the parties that because 21 Connecticut filed that you then have 30 days for 22 rebuttal and it is the date of that rebuttal that will 23 be the trigger date for the K.5.
24 MR. BESSETTE: This is Paul Bessette.
25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 That is how we have evaluated it.
1 MR. TURK: Yes, Your Honor.
2 CHAIRMAN McDADE: Okay and --
3 ADMIN. JUDGE WARDWELL: How do you 4
interpret Connecticut's to being testimony?
5 MR. BESSETTE: Well as an interested -- It 6
says statements of position and/or written testimony.
7 CHAIRMAN McDADE: Okay. Mr. Bessette, 8
what was the date of that, of Connecticut?
9 MR. BESSETTE: I think it was June 29th, 10 Your Honor, I believe.
11 CHAIRMAN McDADE: Is that correct, Mr.
12 Snook?
13 MR. SNOOK: Yes.
14 CHAIRMAN McDADE: Okay. Is it the 15 position of Entergy that on or before July 29th you 16 will be filing pursuant to K.3, rebuttal testimony?
17 MR. BESSETTE: I'm looking at my schedule, 18 Your Honor.
19 CHAIRMAN McDADE: Okay.
20 MR. BESSETTE: We do plan to file I 21 believe -- my calendar says the 30th but we will 22 confirm whether it is the 29th or 30th, Your Honor.
23 It would be a rebuttal testimony to any interested 24 government entities. So yes, that would be our 25
1160 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 position. Our response to Connecticut is due at the 1
end of July.
2 CHAIRMAN McDADE: Okay and the 29th falls 3
on a Sunday, so it would be the 30th.
4 MR. BESSETTE: And that is what my 5
calendar has, Your Honor.
6 MR. TURK: Your Honor, this is Sherwin 7
Turk. That is consistent with my calendar.
8 CHAIRMAN McDADE: Okay.
9 ADMIN. JUDGE WARDWELL: Again, refresh my 10 memory. Did Connecticut file in the required 60-day 11 time frame from what I believe was to be the Entergy's 12 and NRC's Staff's testimony?
13 MR. TURK: Your Honor, this is Sherwin 14 Turk. They were timely. I don't recall if it was 60 15 or what the trigger was but they were timely.
16 ADMIN. JUDGE WARDWELL: I can't remember 17 the date of that. I just don't happen to have that.
18 MR. TURK: Well we're running to get a 19 copy right now, Your Honor.
20 MR. SNOOK: This is Bob Snook for 21 Connecticut. It is my earnest hope that it was 22 timely. Actually looking at my calendar, I think I 23 filed on the 28th. That doesn't make any difference 24 because the 30 days would end on a Saturday as opposed 25
1161 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 to a Sunday so that doesn't make any difference for 1
you guys.
2 I understood that I had until the 29th.
3 ADMIN. JUDGE WARDWELL: Of what?
4 MR. SNOOK: Of June from the March 5
deadline -- time frame.
6 ADMIN. JUDGE WARDWELL: This 60 days, as 7
I see it, from March 30th would bring you to May 29th.
8 MR. SNOOK: Yes.
9 ADMIN. JUDGE WARDWELL: Is that when you 10 submitted?
11 MR. SNOOK: I submitted it in June. I 12 thought there was a 30-day extension from that period.
13 That is where I got my date from, unless I did so in 14 error.
15 ADMIN. JUDGE WARDWELL: Where do you see 16 the 30-day extension? I'm not -- Don't get me wrong.
17 I'm not accusing anyone of anything, knowing how many 18 orders there are out there. That is why I am asking 19 where that 30 days may come from.
20 MR. SNOOK: Actually I'm not sure I can 21 find that right now.
22 MR. BESSETTE: Your Honor, I believe it 23 was a May 16th order.
24 MR. TURK: That is what I have on my 25
1162 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 schedule also, Your Honor. Sherwin Turk.
1 MR. SNOOK: Thanks, Sherwin.
2 MR. TURK: May 16th.
3 ADMIN. JUDGE WARDWELL: Okay.
4 CHAIRMAN McDADE: Given, as I said, as 5
many orders that we have issued in this, I just want 6
to make sure that we are all going to be reading off 7
the same sheet of music as we move forward to that.
8 But there seems to be a consensus among 9
the parties, in any event, that at this point the date 10 envisioned under K.3 of the scheduling order, page 15, 11 would be June 30th.
12 MR. TURK: Yes, Your Honor.
13 CHAIRMAN McDADE: And actually given the 14 fact that -- I'm sorry.
15 So we are talking about July 30th for the 16 rebuttal testimony. Is that correct?
17 MR. TURK: For rebuttal position statement 18
-- rebuttal brief, Your Honor, since they aren't going 19 to file testimony.
20 CHAIRMAN McDADE: Yes. So that would be 21 July 30th?
22 MR. TURK: Yes, Your Honor.
23 MR. BESSETTE: Yes, Your Honor, and that 24 would also be any motions in limine on the rebuttal 25
1163 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 testimony.
1 MR. TURK: From the intervenors.
2 MR. BESSETTE: Yes.
3 MR. TURK: That was Sherwin Turk finishing 4
Mr. Bessette's sentence.
5 CHAIRMAN McDADE: Okay and the motions in 6
limine and also questions to the Board under K.5 would 7
be the same day? Motions in limine under K.4 and 8
questions for the Board under K.5?
9 MR. BESSETTE: Yes, the same day, Your 10 Honor. This is Paul Bessette.
11 CHAIRMAN McDADE: No, that's not correct?
12 MR. SIPOS: This is John Sipos. Sorry to 13 interrupt. I think there was a differing 14 understanding about the questioning, the proposed 15 questions, the date for the proposed questions. I 16 think that was an August date.
17 MR. TURK: That's right, August.
18 MR. SNOOK: That was the 27th of August.
19 This is Bob Snook.
20 MR. TURK: No, it's not. It is the August 21 29th. Sherwin Turk.
22 I
could simplify from the Staff's 23 perspective. Leaving out any question having to deal 24 with contention 38 because those dates are very 25
1164 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 different, we show that on July 30th the Staff and 1
Entergy are due to file a rebuttal to any interested 2
government filings. In this case, it will take the 3
form of a rebuttal position statement or a brief. And 4
on the same date, July 30th, Entergy and Staff are due 5
to file any motions in limine against intervenor 6
rebuttal evidentiary presentations. So that is July 7
30th.
8 Moving forward 30 days to August 29th, 9
which is a Wednesday, all parties, on our schedule at 10 least, are due to file their proposed Board questions, 11 motions for cross-examination, motions for subpart G 12 procedures which I even shutter to mention, but those 13 are due also August 29th.
14 ADMIN. JUDGE WARDWELL: So all that hinges 15 on -- and this is Judge Wardwell again -- on whether 16 or not this extension is --
17 MR. SIPOS: No. Judge, this is John 18 Sipos. I was just looking at the May 16, 2012 order 19 that I think Mr. Bessette was referencing and I 20 believe that also included the dates from paragraph 21 K.3 for both intervenors/petitioners and IGEs or 22 interested governmental entities.
23 ADMIN. JUDGE WARDWELL: Well we will have 24 to look that over because that is what I am not aware 25
1165 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 of. If in fact there is that and we interpret it that 1
as do you in the May 16th order, I agree with the 2
dates that you are talking about on my schedule that 3
I happen to have.
4 If that 30-day extension isn't granted, 5
then in fact the dates are off.
6 CHAIRMAN McDADE: Well this is Judge 7
McDade again. And I am just -- and let me go through 8
first and address it Mr. Turk, then to Mr. Bessette, 9
then to Mr. Sipos. Looking at K.4 and K.5, the 10 trigger dates for K.4 is the last date of submittal 11 under K.1 and K.3. If you look down at paragraph 5, 12 the trigger date is also the last day of materials 13 under K.2 or K.3. Wouldn't that suggest that those 14 are both due the same, July 30th, as opposed to the 15 rebuttal and motions in limine on July 30th and the 16 questions and cross on August 29th? Mr. Turk?
17 MR. TURK: Your Honor, if we are confused 18 I apologize. But as I understand K.3, the last 19 sentence says, "If interested governmental entities 20 submitted written statements of position and/or 21 written testimony, rebuttal may be submitted 30 days 22 after such submissions."
23 So the last thing that happens under K.3 24 is rebuttal by anyone who wants to rebut the 25
1166 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 interested governmental filing. So that is the last 1
filing under K.3, the rebuttal to the interested 2
government.
3 K.5 then says no later than 30 days after 4
service of the last material submitted under K.2 or 5
K.3. So that means that 30 days after the staff and 6
Entergy file a rebuttal to Connecticut. Thirty days 7
after that, i.e., August 29th, proposed questions are 8
due from all parties.
9 CHAIRMAN McDADE: Okay but I guess -- and 10 there is no need to apologize for being confused 11 because obviously we are asking these questions 12 because we wrote the orders and there is a bit of 13 confusion. And what we want to do is just make sure 14 as we come closer here, everyone is playing off of the 15 same sheet of music, as I said.
16 But under that, wouldn't the motions in 17 limine also be due August 29th, Mr. Turk?
18 MR. TURK: No, Your Honor, because under 19 K.4, the motions in limine are due --
20 CHAIRMAN McDADE: Thirty days after 21 service of the materials --
22 MR. TURK: -- entered by intervenors 23 and/or governmental entities.
24 CHAIRMAN McDADE: Okay.
25
1167 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 MR. TURK: Or by the Staff or Entergy 1
under K.2. Well this would be a K.3 filing by Entergy 2
and the Staff. So the rebuttal to Connecticut would 3
not trigger the motion in limine. What would trigger 4
the motion in limine, as we see it, would be 30 days 5
after the intervenors' filing or if Connecticut had 6
filed testimony that would trigger a motion in limine 7
would be 30 days after that. Here there was no 8
testimony. It was just a rebuttal -- I'm sorry -- a 9
statement of position. So the motion in limine 10 doesn't go to that.
11 CHAIRMAN McDADE: Okay, fine. I 12 understand your position. And at first glance, I 13 think I agree with it.
14 MR. TURK: I would have to say, Your 15 Honor, it did take several reads of the order and we 16 did, between the parties we did exchange views several 17 times to make sure we had a common understanding.
18 CHAIRMAN McDADE: Well you probably should 19 have at least said some nasty things among yourselves 20 about the person who wrote because I am saying that at 21 the moment and I wrote it.
22 Okay. But I think at least now we are on 23 the same sheet of music and we all have the same 24 understanding that generally speaking the rebuttal on 25
1168 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 K.3 is due July 30th; motions in limine due July 30th; 1
and August 29th for questions to the Board and cross-2 examination plans. And then we still have to resolve 3
what, if anything, changes with regard to EC-3, based 4
on the pending motion.
5 Before we do that, we are going to ringer 6
off and have a -- and I say ringer off, just put you 7
on mute, and have a discussion among ourselves before 8
we get back to you on that with regard to Riverkeeper 9
EC-3.
10 The next matter we wanted to take up had 11 to do with scheduling for any new or amended 12 contentions arising out of the draft FSEIS. The draft 13 FSEIS, as I understand it, was filed June 29th. Now 14 we need to set a date for the new and amended 15 contentions arising from that, if any. And what I 16 wanted to do is to put out three possibilities and get 17 the parties to comment on them.
18 The first would be to set a trigger date 19 of the date that the draft FSEIS was filed. The next 20 would be as a trigger date the date that the public 21 comments on the draft FSEIS are submitted, which would 22 be late August, August 20th approximately of 2012.
23 And the third date would be from the date of the final 24 FSEIS as far as the date that we should use to trigger 25
1169 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 new or amended contentions.
1 First of all, let me ask the Staff. Mr.
2 Turk, what is your view as to what the appropriate 3
date would be and why?
4 MR.
TURK: Well consistent with 5
traditional NRC practice, Your Honor, the publication 6
of new information would in and of itself be the 7
trigger date. So that publication occurred on June 8
26th. So consistent with standard practice, you would 9
say approximately 30 days from that date, using the 10 Board's previous orders in this proceeding.
11 CHAIRMAN McDADE: What I am concerned with 12 Mr. Turk, is this. And you know, that is the normal 13 date, the sort of presumptive date, but at the same 14 time the date can be different set by the Board. As 15 we are getting into doing a number of things here, the 16 question is do we have -- you know, basically churn 17 the same ground over and over again. If we tell the 18 parties to go ahead and start to file based on the 19 FSEIS, we get motions for new or amended contentions.
20 You all then have to take the time to 21 respond to those motions. Obviously, none of those 22 motions are going to be on track one. We are not 23 going to be hearing those in October of 2012. We have 24 to read them and rule on them and all of this is going 25
1170 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 to be during the same period of time that everybody is 1
getting ready for the hearing.
2 Once we do that, as we are doing that, we 3
are going to be getting public comments on that that 4
can affect the final FSEIS. You are also going to be 5
getting the responses from Marine Fisheries which can 6
affect the final supplemental environmental impact 7
statement and also perhaps public comments on the 8
revised draft based on Marine Fisheries.
9 And my question is does it make sense, 10 given that we are moving towards a hearing both in 11 October and then in December of 2012 to be ruling on 12 three sets of motions for new and amended contentions, 13 one based on the June 26th draft, another -- and then 14 repeatedly until we finally get a final supplemental 15 environmental impact statement. There may be little, 16 if any, difference between these but there may be 17 enough that we have a whole series of new and amended 18 contentions.
19 So I guess my question is how would the 20 interest of the NRC staff be adversely impacted if the 21 Board directed the parties to hold intentions based on 22 the FSEIS until we have a final, that we have 23 something that at least has the potential for being 24 the document, the environmental review document. How 25
1171 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 would the Staff be harmed -- how would the interest of 1
the Commission be harmed by that? And wouldn't the 2
interest of the Commission be advanced by having this 3
going through this just once?
4 And after I hear from Mr. Turk, I will 5
basically ask Mr. Bessette and Mr. Sipos the same 6
question.
7 MR. TURK: Your Honor, this is Sherwin 8
Turk. I certainly understand your concerns.
9 I would not want to trigger -- I would not 10 want the final supplements to the FSEIS to be the 11 trigger date because what typically or what often 12 happens, I won't say typically, but what often happens 13 consulting with another federal agency or state agency 14 is for whatever reason they may find that they cannot 15 deliver their product to us on the originally agreed 16 upon schedule.
17 So if we, for instance, don't get NMFS' 18 biological opinion by September 28th on Atlantic 19 sturgeon, and if that is delayed, that could affect 20 what we say in the final FSEIS supplement.
21 Also if we receive extensive public 22 comments on the draft, that could affect how much time 23 we need to publish the final supplement to the FSEIS.
24 So I wouldn't want the contentions to wait for the 25
1172 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 final FSEIS supplement to come out.
1 I would not have a problem if he wanted to 2
say pick some later date after the current projected 3
time period for comments closes and after the current 4
NMFS schedule for the biological opinion on Atlantic 5
sturgeon to close, some date after that to be the date 6
for filing. I wouldn't have a great problem with that 7
but I wouldn't want to say let's wait for the final 8
supplement to come out because I can't tell you for 9
sure that that will be December. That is our best 10 estimate currently but that could change.
11 And I would also note that we will see on 12 August 20th all parties and members of the public are 13 due to file comments on the draft FSEIS supplement.
14 We will have a better feeling then what the scope of 15 comments is that we will have to address for the 16 final.
17 CHAIRMAN McDADE: Okay but wouldn't it be 18 in the interests of the NRC to wait until you have 19 completed your environmental review, instead of doing 20 this piecemeal with several successive motions to 21 amend contentions that you have to respond to, we have 22 to rule on, only to then to have them mooted by the 23 next round of the environmental review documents that 24 come out? Mr. Turk?
25
1173 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 MR. TURK: Yes, Your Honor. There is a 1
certain efficiency in waiting. On the other hand, if 2
we end up waiting too long then we lose the efficiency 3
and end up having delay. So there is a balancing that 4
I think has to be done.
5 CHAIRMAN McDADE: Okay. Mr. Bessette, 6
what is the view of Entergy?
7 ADMIN. JUDGE WARDWELL: Before you can I 8
ask a question?
9 CHAIRMAN McDADE: Judge Wardwell?
10 ADMIN. JUDGE WARDWELL: Mr. Turk, you 11 wouldn't suggest that you would -- you are going to 12 issue your final final supplement addressing the 13 biological opinion, for instance, wouldn't you and 14 other public comments?
15 MR. BESSETTE: I don't know that I 16 understand, Your Honor. Could you rephrase that?
17 ADMIN. JUDGE WARDWELL: You would not 18 issue your final supplement to the final supplement of 19 the FSEIS or what the heck they call this thing, prior 20 to seeing the biological opinion, would you?
21 MR. TURK: Yes, we might, Your Honor. And 22 this goes to actually to Riverkeeper's contention, 23 where they insert that they have to wait for NMFS to 24 finish its actions before we can issue an EIS. There 25
1174 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 are cases where NMFS has taken seven years. So we 1
will not hold up a licensing action to wait 2
indefinitely for another agency to act. If we can get 3
their comments and their biological opinion in time 4
for the final supplement, then we will include them.
5 But if we have to wait an extensive amount of time, we 6
will go forward as we are permitted to do. That is 7
our legal position.
8 ADMIN. JUDGE WARDWELL: Okay.
9 CHAIRMAN McDADE: Mr. Bessette, what is 10 the view of Entergy on this matter?
11 MR. BESSETTE: Well, Your Honor, we 12 certainly appreciate your concern and our resource 13 constraints on responding to multiple rounds of 14 contentions and amended contentions. However, based 15 on the uncertainty of the FSEIS date, and as you 16 remember due to significant public comments on the 17 first FSEIS, which was delayed significantly, we are 18 concerned that postponing any new contentions until 19 the FSEIS is, final FSEIS supplement is issued, 20 because we just don't know that firm date, we are 21 concerned that this would postpone things perhaps a 22 bit too long.
23 But we would --
24 ADMIN. JUDGE WARDWELL: Yes, but as I 25
1175 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 heard Mr. Turk just say, he is going to move ahead 1
regardless of when that biological comes out with a 2
final. So what is the harm of using that as our 3
target date for doing the extensions?
4 MR. BESSETTE: Well, Your Honor --
5 MR. TURK: Your Honor, this is Sherwin 6
Turk. I hope I didn't mislead you. If we see that we 7
are close to reaching resolution with NMFS, that could 8
affect the issuance date but we won't wait 9
indefinitely for NMFS to finish before we issue.
10 ADMIN. JUDGE WARDWELL: So regardless, so 11 what? I mean, still this period isn't going to be 12 completed until that document is issued. Is that not 13 a fair statement?
14 MR. TURK: Yes.
15 ADMIN. JUDGE WARDWELL: So and we are not 16 going to address any contentions that are remotely 17 related with that until that final document comes out.
18 Isn't that a fair assessment?
19 MR. TURK: Yes and that is what the 20 problem is, Your Honor. If --
21 ADMIN. JUDGE WARDWELL: Why don't we just 22 use that as the target date?
23 MR. TURK: Your Honor, because that could 24 cause inordinate delays. Let me give you a 25
1176 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 hypothetical to possibly make this more clear.
1 If the final supplement that comes up does 2
not differ in any significant way from the draft and 3
yet it comes out two years from now, well then you 4
would ask well why couldn't someone file a contention 5
when the information first became available in the 6
draft, rather than waiting two years for the final to 7
say exactly the same thing. And you would then find 8
well if we had allowed contentions to be filed 9
earlier, we could have addressed those already in the 10 proceeding rather than wait for the final to come out.
11 So I think it is a bad practice to use the 12 final supplement publication date as the trigger. But 13 I would not oppose if you wanted to say let's wait 60 14 days for example or some similar amount of time and 15 make that the trigger date. I wouldn't have a problem 16 if there was some finite date that serves as a trigger 17 rather than waiting --
18 ADMIN. JUDGE WARDWELL: But you just told 19 me you weren't going to wait.
20 MR. TURK: Pardon me?
21 ADMIN. JUDGE WARDWELL: You told me you 22 weren't going to any length of time.
23 MR. TURK: Well let me be clear. We are 24 currently scheduling the final supplement to come out 25
1177 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 in December of this year. If there is any significant 1
delay in that, we will let you know, of course. But 2
if it is only a small amount of delay, for instance, 3
if we finally can wrap up in January or February, then 4
we would do so, rather than waiting indefinitely.
5 ADMIN. JUDGE WARDWELL: All right. So 6
what is wrong with that as the date then? I still 7
don't understand what is wrong with that date. It is 8
under your control. If you are so worried about it --
9 MR. TURK: But we can't give you a date 10 now. All we can do is give you our current best 11 estimate, which is December.
12 ADMIN. JUDGE WARDWELL: Right. And you 13 state that you are not going to wait indefinitely and 14 it is under your control. So why are you worried 15 about it if that date is under your control?
16 MR. TURK: Well Your Honor, that date is 17 under our control but we can't control the date for 18 you to receive contentions and to determine is a 19 contention even admissible. So why do we have to wait 20 for that subsequent action for you to judge the 21 admissibility of a contention, even if a contention is 22 admitted and then put on hold to await the final 23 supplement? I mean, there is no reason to delay 24 everything to wait for the FSEIS supplement to come 25
1178 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 out.
1 CHAIRMAN McDADE: And you are currently 2
being told by Marine Fisheries you are going to be 3
hearing back from them in September or by September?
4 That is their target date?
5 MR. TURK: My recollection is that 6
September 28th we are due to get the biological 7
opinions. Of course that could change but that is our 8
current understanding.
9 CHAIRMAN McDADE: Okay. Mr. Sipos, what 10 is New York's view on this?
11 MR. SIPOS: Thank you, Judge McDade. John 12 Sipos for the State of New York.
13 Your Honors, the state would suggest that 14 using the data of the Final Environmental Impact 15 Statement would make sense for a number of purposes, 16 including the fact that preparation of contentions and 17 ensuring that the regulatory requirements is satisfied 18 is a resource-intensive exercise, not only for the 19 intervenors but also for the Applicant and the Staff.
20 In the past we have gone through this 21 iterative process and we certainly have done that.
22 The state has done that but perhaps resources would be 23 better spent and used to wait for the Staff to 24 determine what its final position is going to be, 25
1179 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 rather than have the iterative contention process that 1
we have gone through. And it may also contribute to 2
more fulsome public comments during the public comment 3
period and discussion, which is discussion in 4
identifications of issues which might assist in the 5
NEPA process.
6 So as of the three dates that the -- the 7
three potential dates that Judge McDade posited a 8
while, a few minutes ago, the State would suggest that 9
using the final, the date of the final NRC Staff 10 document would be optimal.
11 MR. MUSEGAAS: And Your Honor, if I may, 12 this is Phil Musegaas. May I make a brief comment on 13 this?
14 CHAIRMAN McDADE: Please.
15 MR. MUSEGAAS: Thank you. I think 16 Riverkeeper would agree with the State of New York and 17 with supporting the third option that Judge McDade 18 gave of filing contentions after the Final EIS and for 19 the reasons Mr. Sipos outlined.
20 I would also just add from a public 21
- interest, public perspective, it is certainly 22 efficient to have the draft come out, have the public, 23 including Riverkeeper comment on the draft supplement 24 and it is possible that some of our concerns are 25
1180 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 addressed in the final and that that may alter the 1
need -- I am not committing to that, obviously -- but 2
that may alter the need or the scope or the number of 3
contentions that are ultimately filed following the 4
final.
5 So I don't think we are losing anything, 6
given that we are talking about track two, potential 7
track two contentions to wait until the final. I 8
think it would avoid a lot of repetitives of filing.
9 You know, if we go from 30 days from June 10 26th and then we go from again amending things after 11 the final comes out if things are not changed, then I 12 think that may not be as efficient.
13 Thank you.
14 CHAIRMAN McDADE: Okay, for Clearwater, 15 Ms. Greene, do you have anything to add on that?
16 MS. GREENE: Clearwater agrees that the 17 best date would be after the filing of the Final EIS.
18 CHAIRMAN McDADE: From Connecticut, Mr.
19 Snook?
20 MR. SNOOK: I tend to agree that the Final 21 EIS would make sense for us, from our perspective.
22 CHAIRMAN McDADE: And Cortlandt, Ms.
23 Treanor?
24 MS. TREANOR: We are not taking a position 25
1181 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 on this at this time.
1 CHAIRMAN McDADE: Okay.
2 MR. BESSETTE: Yes Your Honor, I mean this 3
is Paul Bessette. I think we were somewhat cut off in 4
our conversation. We understand the positions of the 5
parties but we also from, you know as Mr. Turk noted 6
in one of his correspondence, we can't guarantee there 7
is not another issue that will require another FSEIS 8
supplements.
9 Three of the intervenors filed a
10 contention late last night that calls for an FSEIS 11 supplement on an unrelated issue. So to say that we 12 are deferring all contentions until a final FSEIS 13 supplement until Entergy provides some substantial 14 uncertainty here both with regard to the date, perhaps 15 there is other supplements. So if the Board was to 16 postpone this, we would suggest they put an end date 17 or no later than to this contention. Otherwise, this 18 just could be somewhat of an endless cycle.
19 CHAIRMAN McDADE: Okay, obviously we don't 20 want this to drag on forever. There is a concern on 21 the part of the Board, you know, we originally 22 admitted contentions more than four years ago and as 23 we get closer to the hearing, the hearing that we are 24 actually going to have bears little resemblance to the 25
1182 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 contentions that were admitted more than four years 1
ago. And you wind up going through and ruling on 2
contentions that then are significantly changed before 3
you get to a hearing.
4 Specifically, if the Board were to set an 5
order directing the parties not to file any new or 6
amended contentions on the FSEIS but said that the 7
Board would issue an order establishing a time frame 8
for that later in the year, you know, specifically the 9
operative events coming up would be in August, the 10 public comments the end of September then from Marine 11 Fisheries, would we not be in a better position at the 12 end of September to determine what a reasonable date 13 was, one would be the Final Supplemental Environmental 14 Impact Statement at that point be reasonable in 15 December and all of the parties at that point be in a 16 position to use their time most efficiently?
17 Just very briefly, Mr. Turk, what if any 18 objections to that would the staff have?
19 MR. TURK: Your Honor, I would object to 20 anything to an order that used the FSEIS supplement 21 publication date as the trigger.
22 If you use the September 28th expected 23 date for NMFS to file its biological opinion on 24 Atlantic sturgeon, I would have less of a problem.
25
1183 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 But if NMFS misses that date, then I would like that 1
to be, as Mr. Bessette suggested, a fallback no later 2
than date.
3 And let me just note one thing also before 4
you rule or reach a decision on what the schedule 5
should be. The FSEIS supplement is very limited in 6
scope. It only addresses some corrections to the 7
entrainment and impingement data that had been 8
previously published in the FSEIS itself. It includes 9
a discussion of the new thermal study that Entergy 10 did, which was accepted by New York State in their 11 state's proceedings and it recounts the latest history 12 on the biological opinion for shortnose sturgeon and 13 the re-initiation of consultations on Atlantic 14 sturgeon.
15 So it is a very limited scope. The whole 16 thing is no more than a couple of dozen, maybe two 17 dozen pages.
18 So we are really not talking about a large 19 contention. If one was to be filed, it wouldn't 20 really need an extraordinary amount of time for 21 intervenors to frame a contention if they have one in 22 mind.
23 CHAIRMAN McDADE: But doesn't that cut 24 both ways, Mr. Turk? I mean basically what you are 25
1184 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 saying is this document should be relatively short and 1
yet does it make any sense to have them prepare a 2
contention or rule on the contention, the prepare 3
another contention or rule on the contention there, 4
prepare another contention or rule on the contention 5
based on what could be relatively minor changes, given 6
the way you have described it as a short document that 7
should be completed before we have the track two, the 8
track one hearing completed.
9 MR. TURK: I understand your statements, 10 Your Honor, and there is certainly some merit in that 11 as well.
12 CHAIRMAN McDADE: Okay and I don't want to 13 keep this going too much longer but just very briefly, 14 Mr. Bessette, anything further on this?
15 MR. BESSETTE: No, Your Honor. If you 16 wanted to postpone a decision for several months, we 17 would not object to that. But again, we would object 18 to an open-ended date that could result in inordinate 19 delays.
20 CHAIRMAN McDADE: Okay, Mr. Sipos, 21 anything new, anything further?
22 MR. SIPOS: No, Your Honor. I believe I 23 have set out the State's position. And if Your Honor 24 has no further questions, I am happy to leave the 25
1185 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 record as it is.
1 CHAIRMAN McDADE: Okay, Riverkeeper, 2
Clearwater, Connecticut or Cortlandt, anything further 3
on this?
4 MR. SNOOK: No, not from Connecticut.
5 MR. STOLOROW: No, Your Honor, I think our 6
position is clear.
7 CHAIRMAN McDADE: Okay. The next thing we 8
wanted to take up, there is a Staff motion for an 9
extension of time relating to New York 38 Riverkeeper 10 TC3 that the motion was filed. It says that the 11 motion is not opposed. It asks for an extension from 12 July 19th to August 20th.
13 The Board would be predisposed to granting 14 that unopposed motion. We will incorporate what comes 15 out of this hearing including that in an order that 16 will be issued later this week.
17 We currently also have a motion in limine 18 by Entergy but it doesn't seem that that is ripe for 19 any discussion. It was only filed on July 6th. The 20 reply isn't due yet.
21 We also have the new contention New York 22
- 29. But again the response to that isn't due yet, so 23 it seems premature to discuss that.
24 Let's go through with the parties. Does 25
1186 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 the NRC staff have any other matters that you believe 1
should be taken up at the status conference?
2 MR. TURK: Just one question, Your Honor.
3 I don't know that we closed off the discussion on 4
Riverkeeper's motion. Did you want any further 5
discussion on that or was there more information you 6
needed on that?
7 CHAIRMAN McDADE: We have no further 8
questions. We haven't ruled on it. I think I 9
indicated that we would put you on mute and discuss it 10 among ourselves and then bring you all back on but we 11 have not made any ruling on the motion to hold 12 Riverkeeper EC-3 Clearwater EC-1 in abeyance.
13 Anything further from the NRC Staff?
14 MR. TURK: No, we have nothing further, 15 Your Honor.
16 CHAIRMAN McDADE: Mr. Bessette for 17 Entergy?
18 MR. BESSETTE: Just one issue and I would 19 hope I think Manna Jo may address this, but we have 20 been consulted this afternoon that Riverkeeper plans 21 to file a new safety contention based on --
22 MS. GREENE: It's not Riverkeeper.
23 MR. MUSEGAAS: I'm sorry but this is Mr.
24 Musegaas. It is not Riverkeeper.
25
1187 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 MR. BESSETTE: I'm sorry. I'm sorry.
1 Manna Jo from Clearwater consulted on a new safety 2
contention regarding aging management of the spent 3
fuel pools. So that, Your Honor will also have to be 4
addressed as part of this proceeding.
5 And I just want to confirm that any 6
schedule that you put out, what new environmental 7
contentions based on the FSEIS, the draft FSEIS 8
supplement would only apply to those issues raised by 9
the supplement, not other issues.
10 MS. GREENE: Yes.
11 MR. BESSETTE: Yes, right. Okay.
12 CHAIRMAN McDADE: Mr. Sipos for New York, 13 anything further we should discuss at this hearing --
14 at this status conference?
15 MR. SIPOS: Just briefly, Your Honor, just 16 to clarify the record. The contention that the States 17 and Riverkeeper and Clearwater filed last night, I 18 believe it is the lead number is New York State 19 Contention 39.
20 CHAIRMAN McDADE: I'm sorry, what did I 21 say?
22 MR. SIPOS: I thought I might have heard 23 29 but I may have misheard that.
24 CHAIRMAN McDADE: If I said 29 I obviously 25
1188 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 was in error. Thank you.
1 All
- right, anything further from 2
Riverkeeper? Mr. Musegaas?
3 MR. MUSEGAAS: No, Your Honor. Thank you.
4 CHAIRMAN McDADE: Okay, anything further 5
from Clearwater, Ms. Greene?
6 MS. GREENE: No, thank you, Your Honor.
7 CHAIRMAN McDADE: From Connecticut, Mr.
8 Snook?
9 MR. SNOOK: No, Your Honor.
10 CHAIRMAN McDADE: From Cortlandt?
11 MS. TREANOR: No, Your Honor.
12 CHAIRMAN McDADE: Okay, we are going to 13 put you on mute for just a moment. If you would hang, 14 we will be back with you in just a few minutes.
15 (Whereupon, the foregoing status 16 conference went off the record at 2:36 17 p.m. and went back on the record at 2:42 18 p.m.)
19 CHAIRMAN McDADE: This is Judge McDade 20 back on the line. The issue that we still have to 21 rule on had to do with the motion to hold in abeyance 22 the Riverkeeper EC-3 and Clearwater EC-1. That motion 23 is denied. The rebuttal testimony was originally due 24 on June 29th. We are setting for the submission of 25
1189 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 that rebuttal testimony the 13th of July by 4:00 p.m.
1 on Friday the 13th of July.
2 Just so there is no confusion based on 3
what we have been talking about earlier, questions for 4
the Board and cross-examination for all track one 5
issues will be August 29th.
6 Is there anything further? We will issue 7
an order later this week memorializing this telephone 8
conference. Before we ring off here, I apologize for 9
running over the hour that I told you that we 10 anticipated.
11 Mr. Turk, does the Staff have anything 12 further?
13 MR. TURK: No, Your Honor. Thank you.
14 CHAIRMAN McDADE: Mr. Bessette?
15 MR. BESSETTE: No, Your Honor. I am just 16 assuming though that the Board questions, even on this 17 Riverkeeper EC-1 would still be due on 8/29 for that 18 contention as well.
19 CHAIRMAN McDADE: Yes.
20 MR. BESSETTE: Would we have 30 days for 21 motions in limine with that?
22 CHAIRMAN McDADE: Yes.
23 MR. BESSETTE: Okay, thank you. No 24 further questions.
25
1190 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 CHAIRMAN McDADE: August 13th.
1 MR. BESSETTE: Thank you.
2 MR. SIPOS: I'm sorry. I had trouble 3
following that last colloquy. I apologize.
4 CHAIRMAN McDADE: Okay. With regard to 5
the specific contention that we have been contending 6
here, EC-3, we denied the motion to hold it in 7
abeyance. The testimony had originally been due on 8
the 29th. We grant an extension. We are directly 9
Riverkeeper to submit their testimony, their rebuttal 10 testimony no later than Friday July 13th at 4:00 p.m.
11 If there are any motions in limine to be 12 filed based on that rebuttal testimony, they would 13 have until August 13th. For all other motions in 14 limine, based on rebuttal testimony that had been 15 submitted without an extension, that would be July 16 30th. For questions and cross-examination as to all 17 track one contentions, the date would be August 29th.
18 MR. SIPOS: Thank you, Your Honor. I 19 apologize. It was a little too much for me to absorb 20 at one moment but thank you very much.
21 CHAIRMAN McDADE: Okay. And again, I 22 apologize because a lot of this has resulted from an 23 understandable in reading page 15 of our scheduling 24 order. And so now we at least have clarified that and 25
1191 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 are moving forward.
1 Are there any other questions from any of 2
the other parties? Riverkeeper?
3 MR. MUSEGAAS: No, Your Honor.
4 CHAIRMAN McDADE: Okay, Ms. Greene, 5
Clearwater?
6 MS. GREENE: No, Your Honor.
7 CHAIRMAN McDADE: Connecticut?
8 MR. SNOOK: No, Your Honor.
9 CHAIRMAN McDADE: Cortlandt?
10 MS. TREANOR: Just a quick question, Your 11 Honor, to clarify. I'm not sure if I heard it 12 correctly.
13 With respect to Riverkeeper EC-3 is the 14 date for proposing questions for the Board to ask also 15 August 20 or have you set a date for proposing 16 question for the Board to ask?
17 CHAIRMAN McDADE: For proposed questions 18 to the Board for all track one contentions, including 19 Riverkeeper EC-3, it is August 29th.
20 MS. TREANOR: Thank you.
21 CHAIRMAN McDADE: Okay, Judge Wardwell, 22 anything further?
23 ADMIN. JUDGE WARDWELL: No.
24 CHAIRMAN McDADE: Judge Kennedy?
25
1192 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 ADMIN. JUDGE KENNEDY: No.
1 CHAIRMAN McDADE: Okay, thank you.
2 (Whereupon, at 2:46 p.m., the foregoing 3
status conference was concluded.)
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