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 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3 + + + + +
4 ATOMIC SAFETY AND LICENSING BOARD PANEL 5 + + + + +
6 STATUS CONFERENCE 7 ---------------------------x 8 In the Matter of: : Docket Nos.
9 ENTERGY NUCLEAR : 50-247-LR, 50-286-LR 10 OPERATIONS, INC. :
11 (Indian Point Nuclear : ASLBP No.
12 Power Generating Units : 07-858-03-LR-BD01 13 2 and 3) :
14 ---------------------------x 15 Monday, July 9, 2012 16 Via teleconference 17 18 BEFORE:
19 LAWRENCE G. McDADE, Chairman 20 MICHAEL F. KENNEDY, Administrative Judge 21 RICHARD E. WARDWELL, Administrative Judge 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1142 1 APPEARANCES:
2 On Behalf of Entergy, Inc.:
3 PAUL M. BESSETTE, ESQ.
4 JONATHAN M. RUND, ESQ.
5 KATHRYN M. SUTTON, ESQ.
6 of: Morgan, Lewis & Bockius, LLP 7 1111 Pennsylvania Avenue, NW 8 Washington, D.C. 20004 9 (202)739-5796 (Bessette) 10 11 On Behalf of the Nuclear Regulatory Commission:
12 SHERWIN E. TURK, ESQ.
13 BRIAN HARRIS, ESQ.
14 BETH MIZUNO, ESQ.
15 DAVID ROTH, ESQ.
16 of: Office of the General Counsel 17 Mail Stop - O-15 D21 18 U.S. Nuclear Regulatory Commission 19 Washington, D.C. 20555-0001 20 (301)415-1533 (Turk) 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1143 1 On Behalf of the State of New York:
2 JOHN J. SIPOS, ESQ.
3 JANICE A. DEAN, ESQ.
4 of: Office of the Attorney General 5 of the State of New York 6 The Capitol 7 State Street 8 Albany, New York 12224 9
10 On Behalf of the State of Connecticut:
11 ROBERT D. SNOOK, ESQ.
12 of: Office of the Attorney General 13 State of Connecticut 14 55 Elm Street 15 PO Box 120 16 Hartford, CT 06141 17 18 On Behalf of Riverkeeper:
19 PHILLIP MUSEGAAS, ESQ.
20 DEBORAH BRANCATO, ESQ.
21 of: Riverkeeper, Inc.
22 20 Secor Road 23 Ossining, NY 10562 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1144 1 On Behalf of Clearwater:
2 MANNA JO GREENE 3 KARLA RAIMUNDI 4 of: Hudson River Sloop Clearwater, Inc.
5 724 Wolcott Avenue 6 Beacon, NY 12508 7
8 On Behalf of Cortlandt:
9 VICTORIA SHIAH TREANOR, ESQ.
10 ADAM STOLOROW, ESQ.
11 of: Sive, Paget & Riesel, P.C.
12 460 Park Avenue 13 New York, NY 10022 14 (212)421-2150 (Treanor) 15 16 ALSO PRESENT:
17 MIKE WENTZEL, NRC 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1145 1 P R O C E E D I N G S 2 (1:37 p.m.)
3 CHAIRMAN McDADE: Okay. We are on the 4 record in the matter of Entergy Nuclear Operations, 5 Inc. Indian Point Nuclear Power Generating Units 2 and 6 3, Docket numbers 50-247-LR and 50-286-LR.
7 We are here to go over a number of 8 different matters and we might as well just get 9 started first of all by having the parties introduce 10 themselves. First of all from Entergy, who is on the 11 line?
12 MR. BESSETTE: Your Honor, this is Paul 13 Bessette and I have with me John Rund and I believe my 14 colleague Kathryn Sutton may be on the line from a 15 different location.
16 MS. SUTTON: That's correct. Kathryn 17 Sutton here.
18 CHAIRMAN McDADE: Okay. Good afternoon, 19 Ms. Sutton.
20 From the NRC Staff, Mr. Turk?
21 MR. TURK: Yes, Your Honor, Sherwin Turk.
22 With me are David Roth, Beth Mizuno, and Brian Harris, 23 and also our Environmental Project Manager Mike 24 Wentzel is here.
25 CHAIRMAN McDADE: Okay, thank you Mr.
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1146 1 Turk. From New York?
2 MR. SIPOS: Good afternoon, Your Honor, 3 this is John Sipos from Albany and I believe Attorney 4 General Janice Dean is on in New York City.
5 MS. DEAN: Yes.
6 CHAIRMAN McDADE: Is that affirmative, Ms.
7 Dean?
8 MS. DEAN: Yes, Your Honor.
9 CHAIRMAN McDADE: Okay, from Riverkeeper?
10 MR. MUSEGAAS: Yes, Your Honor, this is 11 Phillip Musegaas from Riverkeeper. Musegaas is M-U-S-12 E-G-A-A-S and I am here with Deborah Brancato.
13 CHAIRMAN McDADE: Okay, thank you. From 14 Clearwater?
15 MS. GREENE: Yes, Your Honor, Manna Jo 16 Greene from Clearwater with Karla Raimundi. And Manna 17 Jo Greene is M-A-N-N-A, J-O, Greene with an E. And 18 Karla with a K and her last name is spelled R-A-I-M-U-19 N-D-I.
20 CHAIRMAN McDADE: Thank you. From 21 Connecticut?
22 MR. SNOOK: Robert Snook, S-N-O-O-K.
23 CHAIRMAN McDADE: From Cortlandt?
24 MS. TREANOR: Good afternoon, this is 25 Victoria Treanor, T-R-E-A-N-O-R and Adam Stolorow is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1147 1 with me, S-T-O-L-O-R-O-W.
2 CHAIRMAN McDADE: Okay, have I hit 3 everybody? Any other party present?
4 Okay, apparently not. And again my name 5 is Lawrence McDade. With me is Judge Wardwell and 6 Judge Kennedy.
7 Let's go through the various matters that 8 we wanted to take up first and at the end we will ask 9 the parties whether or not there are any other matters 10 that they believe need to be taken up at this point.
11 First of all we have a motion from 12 Riverkeeper relating to Riverkeeper contentions EC-3, 13 which has been consolidated with Clearwater contention 14 EC-1. The motion basically asks the Board to hold in 15 abeyance that contention which is currently on track 16 one to be heard in October of 2012, pending settlement 17 negotiations that are represented as having been 18 pending. In response to the motion, Entergy and the 19 NRC Staff filed objections to granting the motion.
20 First of all let me ask of the standpoint 21 from Riverkeeper what are the status of those 22 negotiations at this point in time?
23 MR. MUSEGAAS: Your Honor, this is Phillip 24 Musegaas. We have had preliminary negotiations. They 25 are still, in our opinion, going forward and going NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1148 1 well. So we hope to continue to negotiate in good 2 faith as we have. As I outlined in our motion we have 3 had several preliminary discussions and would hope to 4 continue that.
5 So without going into detail which would 6 be the subject of confidential negotiation 7 discussions, I hope that answers your question.
8 CHAIRMAN McDADE: Well the answer is yes 9 and no. Let me pursue it a little bit further.
10 At this point in time, do you have any 11 time table for further meetings and a reasonable 12 estimate by which point you would know whether this 13 would settle or not?
14 MR. MUSEGAAS: We have a -- I will answer 15 briefly and then I would ask if Paul Bessette could 16 answer as well.
17 We are essentially waiting for a response 18 from Entergy. Riverkeeper counsel spoke to Entergy 19 counsel this morning briefly and I believe we are 20 expecting a response from Entergy within the next 21 couple of weeks. I don't want to speak for Mr.
22 Bessette but essentially we are waiting for a response 23 from Entergy to engage in more substantive 24 discussions. And that is -- I would like to give you 25 a more accurate estimate of time but that is the best NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1149 1 I can give you at this point.
2 CHAIRMAN McDADE: From the Board's 3 schedule, the item that is due is rebuttal testimony 4 from Riverkeeper. That testimony would have been due 5 three days after the motion was filed back on June 6 29th. What prohibits, at this point, Riverkeeper from 7 filing that rebuttal testimony and then moving forward 8 with settlement discussions? Again, we are not 9 talking about the initial direct testimony which was 10 filed back in December. The reply testimony back the 11 end of March the 29th and 30th. At this point, you 12 have had a few months. Having seen the testimony of 13 the Staff and Entergy, rebuttal is not a regurgitation 14 of the direct testimony but only focusing on 15 differences between your direct testimony and the 16 reply testimony presented by Entergy and the Staff.
17 One would think the rebuttal testimony would be 18 relatively short comparatively.
19 Given the amount of time that you have had 20 to work on it, how would Riverkeeper be damaged if we 21 were to direct it go forward with the rebuttal 22 testimony?
23 MR. MUSEGAAS: Your Honor, we do not 24 believe we would be damaged. If Your Honor decides 25 for us to go forward, we will make our best efforts NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1150 1 and file rebuttal testimony when you require us to.
2 The larger reason for our motion was because of 3 limited resources and limited witness availabilities 4 leading up to the June 29th deadline, we were simply 5 seeking to put the contention on hold, as you well 6 know.
7 So at this point, you know, we have 8 continued to work on it and we will abide by whatever 9 Your Honor decides in terms of when we need to file.
10 We would respectfully ask if you decide that we need 11 to file in the short-term that we be given 12 approximately a week, if that is possible to file it.
13 Again, that is where we stand.
14 CHAIRMAN McDADE: If we were to grant your 15 motion, wouldn't that effectively take this 16 contention, Riverkeeper EC-3 off track one and 17 preclude us from hearing it in October? And doesn't 18 that work against Riverkeeper's interest in getting 19 this resolved? Mr. Musegaas?
20 MR. MUSEGAAS: Yes, Your Honor. I'm 21 sorry. I'm considering my response. Thank you.
22 I don't believe that putting it on track 23 two necessarily works against our interest, if that 24 would be the inevitable result, because we have other 25 potential NEPA contentions that are on track two and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1151 1 indeed other contentions that may be heard on that 2 later track. From our perspective, it does not go 3 against our interest to potentially have to litigate 4 that at a later date. But yes, that is --
5 CHAIRMAN McDADE: Okay, Clearwater is also 6 a party on this particular contention, although they 7 have been consolidated. Ms. Greene, do you have 8 anything further to add to what Mr. Musegaas had to 9 say?
10 MS. GREENE: No, Your Honor, we don't.
11 CHAIRMAN McDADE: Okay, Mr. Bessette, will 12 you be responding for Entergy on that?
13 MR. BESSETTE: Yes, I will, Your Honor.
14 CHAIRMAN McDADE: What is your view on the 15 status of the settlement negotiations? Is there a 16 reasonable and let me use the word here probability 17 that this contention would settle before hearing in 18 October?
19 MR. BESSETTE: Well first I think we agree 20 with Mr. Musegaas' description of it. We are going 21 forward, albeit slowly. We have had preliminary 22 discussions and again we appreciate the discussions 23 with all the parties.
24 We anticipate, if there is a potential for 25 solution, we could resolve this before going to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1152 1 hearings. We wanted to emphasize that part of the 2 whole process was that we would proceed with 3 settlement in parallel with going to hearing on this 4 issue. And so we were frankly somewhat surprised that 5 this motion was filed in the first place.
6 That filing has actually put some of the 7 settlement efforts -- delayed some of those efforts.
8 We hope to go forward in the next week or two, our 9 getting back to Riverkeeper. It would be helpful to 10 perhaps have face-to-face meetings in the coming weeks 11 and we should know if we are going to reach a 12 resolution, I would hope, in the next 60 days.
13 CHAIRMAN McDADE: Do you think it would be 14 helpful if we were to assign a settlement judge to 15 this matter? That would be not one of the three 16 judges assigned, a judge who would not be discussing 17 what was discussed during the settlement negotiations 18 with the members of the Board. But do you think it 19 would be helpful to have a judge assigned to 20 facilitate the settlement? First of all, Mr.
21 Bessette?
22 MR. BESSETTE: Your Honor, that may be 23 helpful at some point but at this point I think the 24 parties are in general agreement, again, without going 25 into detail on the issues to be discussed. And I mean NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1153 1 at this point I think the parties are working well 2 together but there may be a point where perhaps if we 3 are close but not quite there where a settlement judge 4 could help. And we appreciate that opportunity but I 5 think at this point I don't see the need quite yet.
6 CHAIRMAN McDADE: Okay and let me just 7 leave that out there that in the event Mr. Musegaas or 8 Mr. Bessette you believe that at some point down the 9 road a settlement judge might be helpful in helping 10 you reach an agreement, please notify us and we can 11 try to schedule a status conference to talk about the 12 logistics of that.
13 MR. BESSETTE: That is greatly 14 appreciated. Thank you, Your Honor.
15 MR. MUSEGAAS: Thank you, Your Honor. And 16 Your Honor, if I may, in further response to your 17 question about the status of negotiations, I would 18 just add my agreement to Mr. Bessette that I do think 19 if we continue to go forward with negotiations that it 20 is possible we could resolve the contention before the 21 hearing date. I didn't make that clear before.
22 CHAIRMAN McDADE: Okay. Mr. Bessette, is 23 it still your position that the rebuttal testimony 24 should be filed and we should move forward to keep EC-25 3 on track one?
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1154 1 MR. BESSETTE: Yes, Your Honor, for the 2 reasons we have stated in our answer. Again, we 3 believe the discussions are moving forward but again 4 they are very preliminary. And because we do think we 5 would decide to reach agreement or not before the 6 hearing, we do not want to jeopardize the current 7 progress ongoing to hearing on this contention.
8 CHAIRMAN McDADE: Okay. Mr. Turk, I have 9 got one quick question of the Staff preliminarily.
10 And the response that you filed on July 5th is titled 11 "NRC Staff's Answer to Riverkeeper's Motion to Hold 12 Contention Riverkeeper EC-3 in Abeyance." It 13 indicates on page two that the parties are due to file 14 their proposed Board questions on all contentions four 15 weeks later on August 29, 2012. That would be a 60-16 day period.
17 And I realize there have been an awful lot 18 of orders and an awful lot scheduling orders filed by 19 the Board in this particular case but my quick reading 20 from our July 2010 scheduling order is that those 21 questions are due 30 days after, not 60 days after.
22 Am I overlooking an order that I signed?
23 MR. TURK: Your Honor, thank you. You 24 raised a very good question that I think would be 25 useful for us to talk about during this conference NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1155 1 call.
2 When the initial scheduling order came out 3 in July of 2010 there was a fork in the road. Due 4 dates for Board questions would depend upon whether or 5 not there was any interest in governmental filing. I 6 calculate the dates. Because Connecticut has filed a 7 statement of position that we will need to address in 8 a responsive brief, under the Board's July 2010 order, 9 we are due to file that rebuttal on July 30th, which 10 is by the way also the date we are due to move to 11 strike any rebuttal testimony filed by intervenors.
12 And 30 days later we and all parties are due to file 13 Board questions, any motions for cross-examination, et 14 cetera. That is how I calculate the date. Maybe 15 other parties could comment on that also.
16 MR. BESSETTE: Your Honor, this is Paul 17 Bessette. New York at least, and I don't want to 18 speak for Mr. Sipos, but New York, the NRC, and we 19 have jointly consulted on the schedule because of the 20 various moving pieces and we were in general agreement 21 that the Board questions were due at the end of 22 August, consistent with Mr. Turk's reasoning.
23 CHAIRMAN McDADE: Okay, so you are 24 suggesting that the operative is F3 and that talks in 25 F3 no later than 60 days after the service under NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1156 1 paragraph K.2 -- excuse me, K.3. Is that correct?
2 I'm on page 15 of the scheduling order.
3 MR. TURK: Your Honor, this is Sherwin 4 Turk. I'm going to need to run to get a copy.
5 CHAIRMAN McDADE: Why don't we go back --
6 MR. SIPOS: Your Honor, this is John Sipos 7 and if I could add, if I could make a statement while 8 Mr. Turk is obtaining that, I believe it is paragraph 9 K, capital K.3.
10 MR. TURK: Actually, Your Honor, I am 11 looking at my own schedule, I see K.5 as the operative 12 paragraph, which says that K.3 plus 30 as to the date 13 for proposed questions. And as I have written it down 14 in my own list of due dates, it is 30 days after the 15 rebuttal to governmental filings.
16 MR. BESSETTE: That is consistent with 17 Entergy's understanding as well.
18 MR. SIPOS: And I believe Judge -- this is 19 John Sipos again. I believe NRC Staff, Entergy and 20 the State have a similar understanding now about that.
21 ADMIN. JUDGE WARDWELL: But weren't the 22 intervenors -- This is Judge Wardwell. Weren't the 23 intervenors' rebuttal submitted on June 29th? Which 24 would make the date for the proposed questions as July 25 30th.
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1157 1 MR. TURK: No, Your Honor. That is the 2 date that we would be filing motions in limine on the 3 rebuttal testimony. That is how I read it, Sherwin 4 Turk. And also the date -- July 30th is also the date 5 that we would file our --
6 ADMIN. JUDGE WARDWELL: -- in regards to 7 the scheduling of the proposed questions.
8 MR. TURK: I'm sorry. I missed that, Your 9 Honor.
10 ADMIN. JUDGE WARDWELL: Where do you see 11 the motions in limine coming into play in regards to 12 the scheduling for the proposed questions as outlined 13 in the scheduling order? And I don't have it in front 14 of me so that is why I am asking that.
15 MR. TURK: Working on getting a copy of 16 the order in front of us, Your Honor. It will take us 17 a moment.
18 CHAIRMAN McDADE: Okay, just sort of 19 reading through the order, in K.3 it says the 20 intervenors may but need not submit a revised 21 statement of position and rebuttal testimony. If they 22 do, they are to submit their revised statement of 23 position and rebuttal testimony no later than 60 days 24 after service under paragraph K.2. Likewise, 25 interested government agencies may submit testimony NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1158 1 and supporting affidavits and exhibits no later than 2 60 days after the submissions of Entergy and the NRC 3 Staff under K.2.
4 So under both of those, the rebuttal and 5 the testimony from interested government agencies 6 would come in 60 days after the testimony of Entergy 7 and the Staff, which in this case would be March 29th, 8 March 30th.
9 We then go down to paragraph K.5 --
10 MR. BESSETTE: Your Honor, if I may 11 interrupt, we were also focusing on the last sentence 12 in that paragraph. If interested government entities 13 submit written statements of position or written 14 testimony, rebuttal may be submitted within 30 days of 15 such contention -- of such --
16 COURT REPORTER: I'm sorry. This is the 17 Court Reporter. Who was speaking?
18 MR. BESSETTE: That's Paul Bessette.
19 COURT REPORTER: Thanks a lot.
20 CHAIRMAN McDADE: Okay. As I understand 21 it then, the position of the parties that because 22 Connecticut filed that you then have 30 days for 23 rebuttal and it is the date of that rebuttal that will 24 be the trigger date for the K.5.
25 MR. BESSETTE: This is Paul Bessette.
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1159 1 That is how we have evaluated it.
2 MR. TURK: Yes, Your Honor.
3 CHAIRMAN McDADE: Okay and --
4 ADMIN. JUDGE WARDWELL: How do you 5 interpret Connecticut's to being testimony?
6 MR. BESSETTE: Well as an interested -- It 7 says statements of position and/or written testimony.
8 CHAIRMAN McDADE: Okay. Mr. Bessette, 9 what was the date of that, of Connecticut?
10 MR. BESSETTE: I think it was June 29th, 11 Your Honor, I believe.
12 CHAIRMAN McDADE: Is that correct, Mr.
13 Snook?
14 MR. SNOOK: Yes.
15 CHAIRMAN McDADE: Okay. Is it the 16 position of Entergy that on or before July 29th you 17 will be filing pursuant to K.3, rebuttal testimony?
18 MR. BESSETTE: I'm looking at my schedule, 19 Your Honor.
20 CHAIRMAN McDADE: Okay.
21 MR. BESSETTE: We do plan to file I 22 believe -- my calendar says the 30th but we will 23 confirm whether it is the 29th or 30th, Your Honor.
24 It would be a rebuttal testimony to any interested 25 government entities. So yes, that would be our NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1160 1 position. Our response to Connecticut is due at the 2 end of July.
3 CHAIRMAN McDADE: Okay and the 29th falls 4 on a Sunday, so it would be the 30th.
5 MR. BESSETTE: And that is what my 6 calendar has, Your Honor.
7 MR. TURK: Your Honor, this is Sherwin 8 Turk. That is consistent with my calendar.
9 CHAIRMAN McDADE: Okay.
10 ADMIN. JUDGE WARDWELL: Again, refresh my 11 memory. Did Connecticut file in the required 60-day 12 time frame from what I believe was to be the Entergy's 13 and NRC's Staff's testimony?
14 MR. TURK: Your Honor, this is Sherwin 15 Turk. They were timely. I don't recall if it was 60 16 or what the trigger was but they were timely.
17 ADMIN. JUDGE WARDWELL: I can't remember 18 the date of that. I just don't happen to have that.
19 MR. TURK: Well we're running to get a 20 copy right now, Your Honor.
21 MR. SNOOK: This is Bob Snook for 22 Connecticut. It is my earnest hope that it was 23 timely. Actually looking at my calendar, I think I 24 filed on the 28th. That doesn't make any difference 25 because the 30 days would end on a Saturday as opposed NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1161 1 to a Sunday so that doesn't make any difference for 2 you guys.
3 I understood that I had until the 29th.
4 ADMIN. JUDGE WARDWELL: Of what?
5 MR. SNOOK: Of June from the March 6 deadline -- time frame.
7 ADMIN. JUDGE WARDWELL: This 60 days, as 8 I see it, from March 30th would bring you to May 29th.
9 MR. SNOOK: Yes.
10 ADMIN. JUDGE WARDWELL: Is that when you 11 submitted?
12 MR. SNOOK: I submitted it in June. I 13 thought there was a 30-day extension from that period.
14 That is where I got my date from, unless I did so in 15 error.
16 ADMIN. JUDGE WARDWELL: Where do you see 17 the 30-day extension? I'm not -- Don't get me wrong.
18 I'm not accusing anyone of anything, knowing how many 19 orders there are out there. That is why I am asking 20 where that 30 days may come from.
21 MR. SNOOK: Actually I'm not sure I can 22 find that right now.
23 MR. BESSETTE: Your Honor, I believe it 24 was a May 16th order.
25 MR. TURK: That is what I have on my NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1162 1 schedule also, Your Honor. Sherwin Turk.
2 MR. SNOOK: Thanks, Sherwin.
3 MR. TURK: May 16th.
4 ADMIN. JUDGE WARDWELL: Okay.
5 CHAIRMAN McDADE: Given, as I said, as 6 many orders that we have issued in this, I just want 7 to make sure that we are all going to be reading off 8 the same sheet of music as we move forward to that.
9 But there seems to be a consensus among 10 the parties, in any event, that at this point the date 11 envisioned under K.3 of the scheduling order, page 15, 12 would be June 30th.
13 MR. TURK: Yes, Your Honor.
14 CHAIRMAN McDADE: And actually given the 15 fact that -- I'm sorry.
16 So we are talking about July 30th for the 17 rebuttal testimony. Is that correct?
18 MR. TURK: For rebuttal position statement 19 -- rebuttal brief, Your Honor, since they aren't going 20 to file testimony.
21 CHAIRMAN McDADE: Yes. So that would be 22 July 30th?
23 MR. TURK: Yes, Your Honor.
24 MR. BESSETTE: Yes, Your Honor, and that 25 would also be any motions in limine on the rebuttal NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1163 1 testimony.
2 MR. TURK: From the intervenors.
3 MR. BESSETTE: Yes.
4 MR. TURK: That was Sherwin Turk finishing 5 Mr. Bessette's sentence.
6 CHAIRMAN McDADE: Okay and the motions in 7 limine and also questions to the Board under K.5 would 8 be the same day? Motions in limine under K.4 and 9 questions for the Board under K.5?
10 MR. BESSETTE: Yes, the same day, Your 11 Honor. This is Paul Bessette.
12 CHAIRMAN McDADE: No, that's not correct?
13 MR. SIPOS: This is John Sipos. Sorry to 14 interrupt. I think there was a differing 15 understanding about the questioning, the proposed 16 questions, the date for the proposed questions. I 17 think that was an August date.
18 MR. TURK: That's right, August.
19 MR. SNOOK: That was the 27th of August.
20 This is Bob Snook.
21 MR. TURK: No, it's not. It is the August 22 29th. Sherwin Turk.
23 I could simplify from the Staff's 24 perspective. Leaving out any question having to deal 25 with contention 38 because those dates are very NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1164 1 different, we show that on July 30th the Staff and 2 Entergy are due to file a rebuttal to any interested 3 government filings. In this case, it will take the 4 form of a rebuttal position statement or a brief. And 5 on the same date, July 30th, Entergy and Staff are due 6 to file any motions in limine against intervenor 7 rebuttal evidentiary presentations. So that is July 8 30th.
9 Moving forward 30 days to August 29th, 10 which is a Wednesday, all parties, on our schedule at 11 least, are due to file their proposed Board questions, 12 motions for cross-examination, motions for subpart G 13 procedures which I even shutter to mention, but those 14 are due also August 29th.
15 ADMIN. JUDGE WARDWELL: So all that hinges 16 on -- and this is Judge Wardwell again -- on whether 17 or not this extension is --
18 MR. SIPOS: No. Judge, this is John 19 Sipos. I was just looking at the May 16, 2012 order 20 that I think Mr. Bessette was referencing and I 21 believe that also included the dates from paragraph 22 K.3 for both intervenors/petitioners and IGEs or 23 interested governmental entities.
24 ADMIN. JUDGE WARDWELL: Well we will have 25 to look that over because that is what I am not aware NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1165 1 of. If in fact there is that and we interpret it that 2 as do you in the May 16th order, I agree with the 3 dates that you are talking about on my schedule that 4 I happen to have.
5 If that 30-day extension isn't granted, 6 then in fact the dates are off.
7 CHAIRMAN McDADE: Well this is Judge 8 McDade again. And I am just -- and let me go through 9 first and address it Mr. Turk, then to Mr. Bessette, 10 then to Mr. Sipos. Looking at K.4 and K.5, the 11 trigger dates for K.4 is the last date of submittal 12 under K.1 and K.3. If you look down at paragraph 5, 13 the trigger date is also the last day of materials 14 under K.2 or K.3. Wouldn't that suggest that those 15 are both due the same, July 30th, as opposed to the 16 rebuttal and motions in limine on July 30th and the 17 questions and cross on August 29th? Mr. Turk?
18 MR. TURK: Your Honor, if we are confused 19 I apologize. But as I understand K.3, the last 20 sentence says, "If interested governmental entities 21 submitted written statements of position and/or 22 written testimony, rebuttal may be submitted 30 days 23 after such submissions."
24 So the last thing that happens under K.3 25 is rebuttal by anyone who wants to rebut the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1166 1 interested governmental filing. So that is the last 2 filing under K.3, the rebuttal to the interested 3 government.
4 K.5 then says no later than 30 days after 5 service of the last material submitted under K.2 or 6 K.3. So that means that 30 days after the staff and 7 Entergy file a rebuttal to Connecticut. Thirty days 8 after that, i.e., August 29th, proposed questions are 9 due from all parties.
10 CHAIRMAN McDADE: Okay but I guess -- and 11 there is no need to apologize for being confused 12 because obviously we are asking these questions 13 because we wrote the orders and there is a bit of 14 confusion. And what we want to do is just make sure 15 as we come closer here, everyone is playing off of the 16 same sheet of music, as I said.
17 But under that, wouldn't the motions in 18 limine also be due August 29th, Mr. Turk?
19 MR. TURK: No, Your Honor, because under 20 K.4, the motions in limine are due --
21 CHAIRMAN McDADE: Thirty days after 22 service of the materials --
23 MR. TURK: -- entered by intervenors 24 and/or governmental entities.
25 CHAIRMAN McDADE: Okay.
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1167 1 MR. TURK: Or by the Staff or Entergy 2 under K.2. Well this would be a K.3 filing by Entergy 3 and the Staff. So the rebuttal to Connecticut would 4 not trigger the motion in limine. What would trigger 5 the motion in limine, as we see it, would be 30 days 6 after the intervenors' filing or if Connecticut had 7 filed testimony that would trigger a motion in limine 8 would be 30 days after that. Here there was no 9 testimony. It was just a rebuttal -- I'm sorry -- a 10 statement of position. So the motion in limine 11 doesn't go to that.
12 CHAIRMAN McDADE: Okay, fine. I 13 understand your position. And at first glance, I 14 think I agree with it.
15 MR. TURK: I would have to say, Your 16 Honor, it did take several reads of the order and we 17 did, between the parties we did exchange views several 18 times to make sure we had a common understanding.
19 CHAIRMAN McDADE: Well you probably should 20 have at least said some nasty things among yourselves 21 about the person who wrote because I am saying that at 22 the moment and I wrote it.
23 Okay. But I think at least now we are on 24 the same sheet of music and we all have the same 25 understanding that generally speaking the rebuttal on NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1168 1 K.3 is due July 30th; motions in limine due July 30th; 2 and August 29th for questions to the Board and cross-3 examination plans. And then we still have to resolve 4 what, if anything, changes with regard to EC-3, based 5 on the pending motion.
6 Before we do that, we are going to ringer 7 off and have a -- and I say ringer off, just put you 8 on mute, and have a discussion among ourselves before 9 we get back to you on that with regard to Riverkeeper 10 EC-3.
11 The next matter we wanted to take up had 12 to do with scheduling for any new or amended 13 contentions arising out of the draft FSEIS. The draft 14 FSEIS, as I understand it, was filed June 29th. Now 15 we need to set a date for the new and amended 16 contentions arising from that, if any. And what I 17 wanted to do is to put out three possibilities and get 18 the parties to comment on them.
19 The first would be to set a trigger date 20 of the date that the draft FSEIS was filed. The next 21 would be as a trigger date the date that the public 22 comments on the draft FSEIS are submitted, which would 23 be late August, August 20th approximately of 2012.
24 And the third date would be from the date of the final 25 FSEIS as far as the date that we should use to trigger NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1169 1 new or amended contentions.
2 First of all, let me ask the Staff. Mr.
3 Turk, what is your view as to what the appropriate 4 date would be and why?
5 MR. TURK: Well consistent with 6 traditional NRC practice, Your Honor, the publication 7 of new information would in and of itself be the 8 trigger date. So that publication occurred on June 9 26th. So consistent with standard practice, you would 10 say approximately 30 days from that date, using the 11 Board's previous orders in this proceeding.
12 CHAIRMAN McDADE: What I am concerned with 13 Mr. Turk, is this. And you know, that is the normal 14 date, the sort of presumptive date, but at the same 15 time the date can be different set by the Board. As 16 we are getting into doing a number of things here, the 17 question is do we have -- you know, basically churn 18 the same ground over and over again. If we tell the 19 parties to go ahead and start to file based on the 20 FSEIS, we get motions for new or amended contentions.
21 You all then have to take the time to 22 respond to those motions. Obviously, none of those 23 motions are going to be on track one. We are not 24 going to be hearing those in October of 2012. We have 25 to read them and rule on them and all of this is going NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1170 1 to be during the same period of time that everybody is 2 getting ready for the hearing.
3 Once we do that, as we are doing that, we 4 are going to be getting public comments on that that 5 can affect the final FSEIS. You are also going to be 6 getting the responses from Marine Fisheries which can 7 affect the final supplemental environmental impact 8 statement and also perhaps public comments on the 9 revised draft based on Marine Fisheries.
10 And my question is does it make sense, 11 given that we are moving towards a hearing both in 12 October and then in December of 2012 to be ruling on 13 three sets of motions for new and amended contentions, 14 one based on the June 26th draft, another -- and then 15 repeatedly until we finally get a final supplemental 16 environmental impact statement. There may be little, 17 if any, difference between these but there may be 18 enough that we have a whole series of new and amended 19 contentions.
20 So I guess my question is how would the 21 interest of the NRC staff be adversely impacted if the 22 Board directed the parties to hold intentions based on 23 the FSEIS until we have a final, that we have 24 something that at least has the potential for being 25 the document, the environmental review document. How NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1171 1 would the Staff be harmed -- how would the interest of 2 the Commission be harmed by that? And wouldn't the 3 interest of the Commission be advanced by having this 4 going through this just once?
5 And after I hear from Mr. Turk, I will 6 basically ask Mr. Bessette and Mr. Sipos the same 7 question.
8 MR. TURK: Your Honor, this is Sherwin 9 Turk. I certainly understand your concerns.
10 I would not want to trigger -- I would not 11 want the final supplements to the FSEIS to be the 12 trigger date because what typically or what often 13 happens, I won't say typically, but what often happens 14 consulting with another federal agency or state agency 15 is for whatever reason they may find that they cannot 16 deliver their product to us on the originally agreed 17 upon schedule.
18 So if we, for instance, don't get NMFS' 19 biological opinion by September 28th on Atlantic 20 sturgeon, and if that is delayed, that could affect 21 what we say in the final FSEIS supplement.
22 Also if we receive extensive public 23 comments on the draft, that could affect how much time 24 we need to publish the final supplement to the FSEIS.
25 So I wouldn't want the contentions to wait for the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1172 1 final FSEIS supplement to come out.
2 I would not have a problem if he wanted to 3 say pick some later date after the current projected 4 time period for comments closes and after the current 5 NMFS schedule for the biological opinion on Atlantic 6 sturgeon to close, some date after that to be the date 7 for filing. I wouldn't have a great problem with that 8 but I wouldn't want to say let's wait for the final 9 supplement to come out because I can't tell you for 10 sure that that will be December. That is our best 11 estimate currently but that could change.
12 And I would also note that we will see on 13 August 20th all parties and members of the public are 14 due to file comments on the draft FSEIS supplement.
15 We will have a better feeling then what the scope of 16 comments is that we will have to address for the 17 final.
18 CHAIRMAN McDADE: Okay but wouldn't it be 19 in the interests of the NRC to wait until you have 20 completed your environmental review, instead of doing 21 this piecemeal with several successive motions to 22 amend contentions that you have to respond to, we have 23 to rule on, only to then to have them mooted by the 24 next round of the environmental review documents that 25 come out? Mr. Turk?
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1173 1 MR. TURK: Yes, Your Honor. There is a 2 certain efficiency in waiting. On the other hand, if 3 we end up waiting too long then we lose the efficiency 4 and end up having delay. So there is a balancing that 5 I think has to be done.
6 CHAIRMAN McDADE: Okay. Mr. Bessette, 7 what is the view of Entergy?
8 ADMIN. JUDGE WARDWELL: Before you can I 9 ask a question?
10 CHAIRMAN McDADE: Judge Wardwell?
11 ADMIN. JUDGE WARDWELL: Mr. Turk, you 12 wouldn't suggest that you would -- you are going to 13 issue your final final supplement addressing the 14 biological opinion, for instance, wouldn't you and 15 other public comments?
16 MR. BESSETTE: I don't know that I 17 understand, Your Honor. Could you rephrase that?
18 ADMIN. JUDGE WARDWELL: You would not 19 issue your final supplement to the final supplement of 20 the FSEIS or what the heck they call this thing, prior 21 to seeing the biological opinion, would you?
22 MR. TURK: Yes, we might, Your Honor. And 23 this goes to actually to Riverkeeper's contention, 24 where they insert that they have to wait for NMFS to 25 finish its actions before we can issue an EIS. There NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1174 1 are cases where NMFS has taken seven years. So we 2 will not hold up a licensing action to wait 3 indefinitely for another agency to act. If we can get 4 their comments and their biological opinion in time 5 for the final supplement, then we will include them.
6 But if we have to wait an extensive amount of time, we 7 will go forward as we are permitted to do. That is 8 our legal position.
9 ADMIN. JUDGE WARDWELL: Okay.
10 CHAIRMAN McDADE: Mr. Bessette, what is 11 the view of Entergy on this matter?
12 MR. BESSETTE: Well, Your Honor, we 13 certainly appreciate your concern and our resource 14 constraints on responding to multiple rounds of 15 contentions and amended contentions. However, based 16 on the uncertainty of the FSEIS date, and as you 17 remember due to significant public comments on the 18 first FSEIS, which was delayed significantly, we are 19 concerned that postponing any new contentions until 20 the FSEIS is, final FSEIS supplement is issued, 21 because we just don't know that firm date, we are 22 concerned that this would postpone things perhaps a 23 bit too long.
24 But we would --
25 ADMIN. JUDGE WARDWELL: Yes, but as I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1175 1 heard Mr. Turk just say, he is going to move ahead 2 regardless of when that biological comes out with a 3 final. So what is the harm of using that as our 4 target date for doing the extensions?
5 MR. BESSETTE: Well, Your Honor --
6 MR. TURK: Your Honor, this is Sherwin 7 Turk. I hope I didn't mislead you. If we see that we 8 are close to reaching resolution with NMFS, that could 9 affect the issuance date but we won't wait 10 indefinitely for NMFS to finish before we issue.
11 ADMIN. JUDGE WARDWELL: So regardless, so 12 what? I mean, still this period isn't going to be 13 completed until that document is issued. Is that not 14 a fair statement?
15 MR. TURK: Yes.
16 ADMIN. JUDGE WARDWELL: So and we are not 17 going to address any contentions that are remotely 18 related with that until that final document comes out.
19 Isn't that a fair assessment?
20 MR. TURK: Yes and that is what the 21 problem is, Your Honor. If --
22 ADMIN. JUDGE WARDWELL: Why don't we just 23 use that as the target date?
24 MR. TURK: Your Honor, because that could 25 cause inordinate delays. Let me give you a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1176 1 hypothetical to possibly make this more clear.
2 If the final supplement that comes up does 3 not differ in any significant way from the draft and 4 yet it comes out two years from now, well then you 5 would ask well why couldn't someone file a contention 6 when the information first became available in the 7 draft, rather than waiting two years for the final to 8 say exactly the same thing. And you would then find 9 well if we had allowed contentions to be filed 10 earlier, we could have addressed those already in the 11 proceeding rather than wait for the final to come out.
12 So I think it is a bad practice to use the 13 final supplement publication date as the trigger. But 14 I would not oppose if you wanted to say let's wait 60 15 days for example or some similar amount of time and 16 make that the trigger date. I wouldn't have a problem 17 if there was some finite date that serves as a trigger 18 rather than waiting --
19 ADMIN. JUDGE WARDWELL: But you just told 20 me you weren't going to wait.
21 MR. TURK: Pardon me?
22 ADMIN. JUDGE WARDWELL: You told me you 23 weren't going to any length of time.
24 MR. TURK: Well let me be clear. We are 25 currently scheduling the final supplement to come out NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1177 1 in December of this year. If there is any significant 2 delay in that, we will let you know, of course. But 3 if it is only a small amount of delay, for instance, 4 if we finally can wrap up in January or February, then 5 we would do so, rather than waiting indefinitely.
6 ADMIN. JUDGE WARDWELL: All right. So 7 what is wrong with that as the date then? I still 8 don't understand what is wrong with that date. It is 9 under your control. If you are so worried about it --
10 MR. TURK: But we can't give you a date 11 now. All we can do is give you our current best 12 estimate, which is December.
13 ADMIN. JUDGE WARDWELL: Right. And you 14 state that you are not going to wait indefinitely and 15 it is under your control. So why are you worried 16 about it if that date is under your control?
17 MR. TURK: Well Your Honor, that date is 18 under our control but we can't control the date for 19 you to receive contentions and to determine is a 20 contention even admissible. So why do we have to wait 21 for that subsequent action for you to judge the 22 admissibility of a contention, even if a contention is 23 admitted and then put on hold to await the final 24 supplement? I mean, there is no reason to delay 25 everything to wait for the FSEIS supplement to come NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1178 1 out.
2 CHAIRMAN McDADE: And you are currently 3 being told by Marine Fisheries you are going to be 4 hearing back from them in September or by September?
5 That is their target date?
6 MR. TURK: My recollection is that 7 September 28th we are due to get the biological 8 opinions. Of course that could change but that is our 9 current understanding.
10 CHAIRMAN McDADE: Okay. Mr. Sipos, what 11 is New York's view on this?
12 MR. SIPOS: Thank you, Judge McDade. John 13 Sipos for the State of New York.
14 Your Honors, the state would suggest that 15 using the data of the Final Environmental Impact 16 Statement would make sense for a number of purposes, 17 including the fact that preparation of contentions and 18 ensuring that the regulatory requirements is satisfied 19 is a resource-intensive exercise, not only for the 20 intervenors but also for the Applicant and the Staff.
21 In the past we have gone through this 22 iterative process and we certainly have done that.
23 The state has done that but perhaps resources would be 24 better spent and used to wait for the Staff to 25 determine what its final position is going to be, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1179 1 rather than have the iterative contention process that 2 we have gone through. And it may also contribute to 3 more fulsome public comments during the public comment 4 period and discussion, which is discussion in 5 identifications of issues which might assist in the 6 NEPA process.
7 So as of the three dates that the -- the 8 three potential dates that Judge McDade posited a 9 while, a few minutes ago, the State would suggest that 10 using the final, the date of the final NRC Staff 11 document would be optimal.
12 MR. MUSEGAAS: And Your Honor, if I may, 13 this is Phil Musegaas. May I make a brief comment on 14 this?
15 CHAIRMAN McDADE: Please.
16 MR. MUSEGAAS: Thank you. I think 17 Riverkeeper would agree with the State of New York and 18 with supporting the third option that Judge McDade 19 gave of filing contentions after the Final EIS and for 20 the reasons Mr. Sipos outlined.
21 I would also just add from a public 22 interest, public perspective, it is certainly 23 efficient to have the draft come out, have the public, 24 including Riverkeeper comment on the draft supplement 25 and it is possible that some of our concerns are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1180 1 addressed in the final and that that may alter the 2 need -- I am not committing to that, obviously -- but 3 that may alter the need or the scope or the number of 4 contentions that are ultimately filed following the 5 final.
6 So I don't think we are losing anything, 7 given that we are talking about track two, potential 8 track two contentions to wait until the final. I 9 think it would avoid a lot of repetitives of filing.
10 You know, if we go from 30 days from June 11 26th and then we go from again amending things after 12 the final comes out if things are not changed, then I 13 think that may not be as efficient.
14 Thank you.
15 CHAIRMAN McDADE: Okay, for Clearwater, 16 Ms. Greene, do you have anything to add on that?
17 MS. GREENE: Clearwater agrees that the 18 best date would be after the filing of the Final EIS.
19 CHAIRMAN McDADE: From Connecticut, Mr.
20 Snook?
21 MR. SNOOK: I tend to agree that the Final 22 EIS would make sense for us, from our perspective.
23 CHAIRMAN McDADE: And Cortlandt, Ms.
24 Treanor?
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1181 1 on this at this time.
2 CHAIRMAN McDADE: Okay.
3 MR. BESSETTE: Yes Your Honor, I mean this 4 is Paul Bessette. I think we were somewhat cut off in 5 our conversation. We understand the positions of the 6 parties but we also from, you know as Mr. Turk noted 7 in one of his correspondence, we can't guarantee there 8 is not another issue that will require another FSEIS 9 supplements.
10 Three of the intervenors filed a 11 contention late last night that calls for an FSEIS 12 supplement on an unrelated issue. So to say that we 13 are deferring all contentions until a final FSEIS 14 supplement until Entergy provides some substantial 15 uncertainty here both with regard to the date, perhaps 16 there is other supplements. So if the Board was to 17 postpone this, we would suggest they put an end date 18 or no later than to this contention. Otherwise, this 19 just could be somewhat of an endless cycle.
20 CHAIRMAN McDADE: Okay, obviously we don't 21 want this to drag on forever. There is a concern on 22 the part of the Board, you know, we originally 23 admitted contentions more than four years ago and as 24 we get closer to the hearing, the hearing that we are 25 actually going to have bears little resemblance to the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1182 1 contentions that were admitted more than four years 2 ago. And you wind up going through and ruling on 3 contentions that then are significantly changed before 4 you get to a hearing.
5 Specifically, if the Board were to set an 6 order directing the parties not to file any new or 7 amended contentions on the FSEIS but said that the 8 Board would issue an order establishing a time frame 9 for that later in the year, you know, specifically the 10 operative events coming up would be in August, the 11 public comments the end of September then from Marine 12 Fisheries, would we not be in a better position at the 13 end of September to determine what a reasonable date 14 was, one would be the Final Supplemental Environmental 15 Impact Statement at that point be reasonable in 16 December and all of the parties at that point be in a 17 position to use their time most efficiently?
18 Just very briefly, Mr. Turk, what if any 19 objections to that would the staff have?
20 MR. TURK: Your Honor, I would object to 21 anything to an order that used the FSEIS supplement 22 publication date as the trigger.
23 If you use the September 28th expected 24 date for NMFS to file its biological opinion on 25 Atlantic sturgeon, I would have less of a problem.
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1183 1 But if NMFS misses that date, then I would like that 2 to be, as Mr. Bessette suggested, a fallback no later 3 than date.
4 And let me just note one thing also before 5 you rule or reach a decision on what the schedule 6 should be. The FSEIS supplement is very limited in 7 scope. It only addresses some corrections to the 8 entrainment and impingement data that had been 9 previously published in the FSEIS itself. It includes 10 a discussion of the new thermal study that Entergy 11 did, which was accepted by New York State in their 12 state's proceedings and it recounts the latest history 13 on the biological opinion for shortnose sturgeon and 14 the re-initiation of consultations on Atlantic 15 sturgeon.
16 So it is a very limited scope. The whole 17 thing is no more than a couple of dozen, maybe two 18 dozen pages.
19 So we are really not talking about a large 20 contention. If one was to be filed, it wouldn't 21 really need an extraordinary amount of time for 22 intervenors to frame a contention if they have one in 23 mind.
24 CHAIRMAN McDADE: But doesn't that cut 25 both ways, Mr. Turk? I mean basically what you are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1184 1 saying is this document should be relatively short and 2 yet does it make any sense to have them prepare a 3 contention or rule on the contention, the prepare 4 another contention or rule on the contention there, 5 prepare another contention or rule on the contention 6 based on what could be relatively minor changes, given 7 the way you have described it as a short document that 8 should be completed before we have the track two, the 9 track one hearing completed.
10 MR. TURK: I understand your statements, 11 Your Honor, and there is certainly some merit in that 12 as well.
13 CHAIRMAN McDADE: Okay and I don't want to 14 keep this going too much longer but just very briefly, 15 Mr. Bessette, anything further on this?
16 MR. BESSETTE: No, Your Honor. If you 17 wanted to postpone a decision for several months, we 18 would not object to that. But again, we would object 19 to an open-ended date that could result in inordinate 20 delays.
21 CHAIRMAN McDADE: Okay, Mr. Sipos, 22 anything new, anything further?
23 MR. SIPOS: No, Your Honor. I believe I 24 have set out the State's position. And if Your Honor 25 has no further questions, I am happy to leave the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1185 1 record as it is.
2 CHAIRMAN McDADE: Okay, Riverkeeper, 3 Clearwater, Connecticut or Cortlandt, anything further 4 on this?
5 MR. SNOOK: No, not from Connecticut.
6 MR. STOLOROW: No, Your Honor, I think our 7 position is clear.
8 CHAIRMAN McDADE: Okay. The next thing we 9 wanted to take up, there is a Staff motion for an 10 extension of time relating to New York 38 Riverkeeper 11 TC3 that the motion was filed. It says that the 12 motion is not opposed. It asks for an extension from 13 July 19th to August 20th.
14 The Board would be predisposed to granting 15 that unopposed motion. We will incorporate what comes 16 out of this hearing including that in an order that 17 will be issued later this week.
18 We currently also have a motion in limine 19 by Entergy but it doesn't seem that that is ripe for 20 any discussion. It was only filed on July 6th. The 21 reply isn't due yet.
22 We also have the new contention New York 23 29. But again the response to that isn't due yet, so 24 it seems premature to discuss that.
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1186 1 the NRC staff have any other matters that you believe 2 should be taken up at the status conference?
3 MR. TURK: Just one question, Your Honor.
4 I don't know that we closed off the discussion on 5 Riverkeeper's motion. Did you want any further 6 discussion on that or was there more information you 7 needed on that?
8 CHAIRMAN McDADE: We have no further 9 questions. We haven't ruled on it. I think I 10 indicated that we would put you on mute and discuss it 11 among ourselves and then bring you all back on but we 12 have not made any ruling on the motion to hold 13 Riverkeeper EC-3 Clearwater EC-1 in abeyance.
14 Anything further from the NRC Staff?
15 MR. TURK: No, we have nothing further, 16 Your Honor.
17 CHAIRMAN McDADE: Mr. Bessette for 18 Entergy?
19 MR. BESSETTE: Just one issue and I would 20 hope I think Manna Jo may address this, but we have 21 been consulted this afternoon that Riverkeeper plans 22 to file a new safety contention based on --
23 MS. GREENE: It's not Riverkeeper.
24 MR. MUSEGAAS: I'm sorry but this is Mr.
25 Musegaas. It is not Riverkeeper.
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1187 1 MR. BESSETTE: I'm sorry. I'm sorry.
2 Manna Jo from Clearwater consulted on a new safety 3 contention regarding aging management of the spent 4 fuel pools. So that, Your Honor will also have to be 5 addressed as part of this proceeding.
6 And I just want to confirm that any 7 schedule that you put out, what new environmental 8 contentions based on the FSEIS, the draft FSEIS 9 supplement would only apply to those issues raised by 10 the supplement, not other issues.
11 MS. GREENE: Yes.
12 MR. BESSETTE: Yes, right. Okay.
13 CHAIRMAN McDADE: Mr. Sipos for New York, 14 anything further we should discuss at this hearing --
15 at this status conference?
16 MR. SIPOS: Just briefly, Your Honor, just 17 to clarify the record. The contention that the States 18 and Riverkeeper and Clearwater filed last night, I 19 believe it is the lead number is New York State 20 Contention 39.
21 CHAIRMAN McDADE: I'm sorry, what did I 22 say?
23 MR. SIPOS: I thought I might have heard 24 29 but I may have misheard that.
25 CHAIRMAN McDADE: If I said 29 I obviously NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1188 1 was in error. Thank you.
2 All right, anything further from 3 Riverkeeper? Mr. Musegaas?
4 MR. MUSEGAAS: No, Your Honor. Thank you.
5 CHAIRMAN McDADE: Okay, anything further 6 from Clearwater, Ms. Greene?
7 MS. GREENE: No, thank you, Your Honor.
8 CHAIRMAN McDADE: From Connecticut, Mr.
9 Snook?
10 MR. SNOOK: No, Your Honor.
11 CHAIRMAN McDADE: From Cortlandt?
12 MS. TREANOR: No, Your Honor.
13 CHAIRMAN McDADE: Okay, we are going to 14 put you on mute for just a moment. If you would hang, 15 we will be back with you in just a few minutes.
16 (Whereupon, the foregoing status 17 conference went off the record at 2:36 18 p.m. and went back on the record at 2:42 19 p.m.)
20 CHAIRMAN McDADE: This is Judge McDade 21 back on the line. The issue that we still have to 22 rule on had to do with the motion to hold in abeyance 23 the Riverkeeper EC-3 and Clearwater EC-1. That motion 24 is denied. The rebuttal testimony was originally due 25 on June 29th. We are setting for the submission of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1189 1 that rebuttal testimony the 13th of July by 4:00 p.m.
2 on Friday the 13th of July.
3 Just so there is no confusion based on 4 what we have been talking about earlier, questions for 5 the Board and cross-examination for all track one 6 issues will be August 29th.
7 Is there anything further? We will issue 8 an order later this week memorializing this telephone 9 conference. Before we ring off here, I apologize for 10 running over the hour that I told you that we 11 anticipated.
12 Mr. Turk, does the Staff have anything 13 further?
14 MR. TURK: No, Your Honor. Thank you.
15 CHAIRMAN McDADE: Mr. Bessette?
16 MR. BESSETTE: No, Your Honor. I am just 17 assuming though that the Board questions, even on this 18 Riverkeeper EC-1 would still be due on 8/29 for that 19 contention as well.
20 CHAIRMAN McDADE: Yes.
21 MR. BESSETTE: Would we have 30 days for 22 motions in limine with that?
23 CHAIRMAN McDADE: Yes.
24 MR. BESSETTE: Okay, thank you. No 25 further questions.
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1190 1 CHAIRMAN McDADE: August 13th.
2 MR. BESSETTE: Thank you.
3 MR. SIPOS: I'm sorry. I had trouble 4 following that last colloquy. I apologize.
5 CHAIRMAN McDADE: Okay. With regard to 6 the specific contention that we have been contending 7 here, EC-3, we denied the motion to hold it in 8 abeyance. The testimony had originally been due on 9 the 29th. We grant an extension. We are directly 10 Riverkeeper to submit their testimony, their rebuttal 11 testimony no later than Friday July 13th at 4:00 p.m.
12 If there are any motions in limine to be 13 filed based on that rebuttal testimony, they would 14 have until August 13th. For all other motions in 15 limine, based on rebuttal testimony that had been 16 submitted without an extension, that would be July 17 30th. For questions and cross-examination as to all 18 track one contentions, the date would be August 29th.
19 MR. SIPOS: Thank you, Your Honor. I 20 apologize. It was a little too much for me to absorb 21 at one moment but thank you very much.
22 CHAIRMAN McDADE: Okay. And again, I 23 apologize because a lot of this has resulted from an 24 understandable in reading page 15 of our scheduling 25 order. And so now we at least have clarified that and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1191 1 are moving forward.
2 Are there any other questions from any of 3 the other parties? Riverkeeper?
4 MR. MUSEGAAS: No, Your Honor.
5 CHAIRMAN McDADE: Okay, Ms. Greene, 6 Clearwater?
7 MS. GREENE: No, Your Honor.
8 CHAIRMAN McDADE: Connecticut?
9 MR. SNOOK: No, Your Honor.
10 CHAIRMAN McDADE: Cortlandt?
11 MS. TREANOR: Just a quick question, Your 12 Honor, to clarify. I'm not sure if I heard it 13 correctly.
14 With respect to Riverkeeper EC-3 is the 15 date for proposing questions for the Board to ask also 16 August 20 or have you set a date for proposing 17 question for the Board to ask?
18 CHAIRMAN McDADE: For proposed questions 19 to the Board for all track one contentions, including 20 Riverkeeper EC-3, it is August 29th.
21 MS. TREANOR: Thank you.
22 CHAIRMAN McDADE: Okay, Judge Wardwell, 23 anything further?
24 ADMIN. JUDGE WARDWELL: No.
25 CHAIRMAN McDADE: Judge Kennedy?
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1192 1 ADMIN. JUDGE KENNEDY: No.
2 CHAIRMAN McDADE: Okay, thank you.
3 (Whereupon, at 2:46 p.m., the foregoing 4 status conference was concluded.)
5 6
7 8
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