ML12306A150
| ML12306A150 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 10/23/2012 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| RAS 23685, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML12306A150 (198) | |
Text
Page 2722 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3 + + + + +
4 ATOMIC SAFETY AND LICENSING BOARD PANEL 5 + + + + +
6 HEARING 7 ---------------------------------x 8 In the Matter of: : Docket Nos.
9 ENTERGY NUCLEAR OPERATIONS, INC. : 50-247-LR and 10 (Indian Point Generating Units : 50-286-LR 11 2 and 3) : ASLBP No.
12 ---------------------------------x 07-858-03-LR-BD01 13 Tuesday, October 23, 2012 14 15 DoubleTree by Hilton Hotel 16 Tarrytown 17 Westchester Ballroom 18 455 South Broadway 19 Tarrytown, New York 20 21 BEFORE:
22 LAWRENCE G. McDADE Chair 23 MICHAEL F. KENNEDY Administrative Judge 24 RICHARD E. WARDWELL Administrative Judge 25 Neal R. Gross & Co., Inc.
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Page 2723 1 APPEARANCES:
2 On Behalf of Entergy Nuclear Operations, Inc.:
3 KATHRYN M. SUTTON, Esquire; 4 PAUL M. BESSETTE, Esquire; 5 RONALD J. TENPAS, Esquire; and 6 JONATHAN M. RUND, Esquire 7 of: Morgan, Lewis & Bockius LLP 8 1111 Pennsylvania Avenue, N.W.
9 Washington, D.C. 20004 10 (202) 739-5738 (Sutton) 11 (202) 739-5796 (Bessette) 12 (202) 739-5435 (Tenpas) 13 (202) 739-5061 (Rund) 14 ksutton@morganlewis.com 15 pbessette@morganlewis.com 16 rtenpas@morganlewis.com 17 jrund@morganlewis.com 18 and 19 WILLIAM GLEW, Esquire 20 Assistant General Counsel 21 Entergy Nuclear Operations, Inc.
22 440 Hamilton Avenue 23 White Plains, New York 24 (914) 272-3360 25 wglew@entergy.com Neal R. Gross & Co., Inc.
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Page 2724 1 APPEARANCES (Continued):
2 On Behalf of the Nuclear Regulatory Commission:
3 SHERWIN E. TURK, Esquire; and 4 ANITA GHOSH, Esquire 5 Office of the General Counsel 6 Mail Stop - O-15 D21 7 U.S. Nuclear Regulatory Commission 8 Washington, D.C. 20555-0001 9 (301) 415-1533 (Turk) 10 (301) 415-4113 (Ghosh) 11 sherwin.turk@nrc.gov 12 anita.ghosh@nrc.gov 13 On Behalf of the State of New York:
14 JOHN J. SIPOS, Esquire; and 15 ADAM SOLOMON, Esquire 16 Assistant Attorneys General 17 Office of the Attorney General of the 18 State of New York 19 The Capitol 20 State Street 21 Albany, New York 12224 22 (518) 402-2251 (Sipos) 23 john.sipos@ag.ny.gov 24 and 25 Neal R. Gross & Co., Inc.
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Page 2725 1 APPEARANCES (Continued):
2 On Behalf of the State of New York (Continued):
3 JANICE A. DEAN, Esquire 4 Assistant Attorney General 5 Office of the Attorney General of the 6 State of New York 7 120 Broadway, 26th Floor 8 New York, New York 10271 9 (212) 416-8459 10 janice.dean@ag.ny.gov 11 On Behalf of Riverkeeper, Inc.:
12 DEBORAH BRANCATO, Esquire 13 Riverkeeper, Inc.
14 20 Secor Road 15 Ossining, New York 10562 16 (800) 21-RIVER 17 dbrancato@riverkeeper.org 18 On Behalf of Hudson River Sloop Clearwater, 19 Inc.:
20 RICHARD WEBSTER, Esquire 21 of: Public Justice, P.C.
22 1825 K Street, N.W., Suite 200 23 Washington, D.C. 20006 24 (202) 861-5222 25 rwebster@publicjustice.net Neal R. Gross & Co., Inc.
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Page 2726 1 APPEARANCES (Continued):
2 and 3 On Behalf of Hudson River Sloop Clearwater, 4 Inc. (Continued):
5 KARLA RAIMUNDI 6 Hudson River Sloop Clearwater, Inc.
7 724 Wolcott Avenue 8 Beacon, New York 12508 9 (845) 265-8080 10 karla@clearwater.org 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Neal R. Gross & Co., Inc.
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Page 2727 1 TABLE OF CONTENTS 2 Exhibits: Mark Recd 3 None Marked 4 WITNESSES 5 Robert M. Aleksick Nelson Azevedo 6 Dr. Allen Hiser Dr. Nathan Bixler 7 Dr. Andrew Kanter Dr. Kevin O'Kula 8 Aaron Mair Patricial Milligan 9 Anthony Papa Jeffrey Rikhoff 10 Alax Cox 11 Donald P. Cleary 12 Dolores Guardado 13 Donald Harrison 14 Dr. Michael Edelstein 15 Dr. Erik A. Larsen 16 Manna Jo Greene 17 Grant Teagarden 18 Dr. Jeffrey Horowitz 19 Ian D. Mew 20 Dr. Joram Hopenfeld 21 Joseph Jones 22 Jerry Riggs 23 John Simms 24 Dr. Francois J. Lemay 25 Lori Potts Neal R. Gross & Co., Inc.
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Page 2728 1 P-R-O-C-E-E-D-I-N-G-S 2 (2:01 p.m.)
3 JUDGE McDADE: The hearing will come to 4 order. Before we get started on Environmental 5 Contention 3 submitted by Clearwater, there are a 6 couple of preliminary matters. We received a couple 7 of motions in from Clearwater. And I just want to 8 make sure I understand what the motions are and the 9 import of the motions.
10 There were withdrawals from Ms. Greene and 11 Mr. Filler. Ms. Raimundi, they are withdrawing from 12 representation of Clearwater so that they can be 13 witnesses on this contention. Is that correct?
14 MR. WEBSTER: Yes. This is Richard 15 Webster, Judge, for Clearwater. I'm from Public 16 Justice in Washington, D.C. Yes, they are withdrawing 17 so they can be witnesses. That is correct, Your 18 Honor.
19 JUDGE McDADE: Okay. So they're both 20 going to be witnesses on this contention? Are they 21 withdrawing only for this contention and then will 22 file new notices of appearance? Are you going to be 23 representing them or Ms. Raimundi?
24 MR. WEBSTER: I think either myself or Ms.
25 Raimundi will be representing Clearwater from now on.
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Page 2729 1 JUDGE McDADE: Okay. I didn't notice, 2 quite frankly, that you had switched, but it does make 3 more sense for you and Riverkeeper on this contention 4 to have changed chairs.
5 MR. WEBSTER: I should have mentioned 6 that, Judge.
7 JUDGE McDADE: Well, it just shows you how 8 observant I am this early in the morning.
9 Are there any other administrative matters 10 that we need to take up before we get started?
11 MR. SIPOS: Your Honor, John Sipos for the 12 State of New York. I was reflecting upon the 13 procedure that the Board put in place yesterday for 14 the recent exhibits on contention New York-17, I 15 believe the two that we discussed towards the close of 16 yesterday's proceedings.
17 And I was wondering if it would also make 18 sense to have a similar procedure or similar timeline 19 in place for the recent document that came in on New 20 York-16. And specifically I believe I am referring to 21 Entergy exhibit 000589.
22 And the state suggests -- and I mentioned 23 this to Entergy, but we haven't fully come to a 24 resolution. But I've suggested that it might also 25 make sense from a symmetry perspective to have a Neal R. Gross & Co., Inc.
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Page 2730 1 similar 30-day time period in place regarding that 2 exhibit.
3 JUDGE McDADE: Okay. It hadn't been 4 requested yesterday. You are requesting it now. What 5 is the view of Entergy with regard to that?
6 MS. SUTTON: Kathryn Sutton for the 7 applicant, Your Honor. My recollection from yesterday 8 is New York was given an opportunity to further object 9 to the exhibit in question. And a clarification of 10 the timing on that objection is warranted, but beyond 11 that, we would need to see the objection as proffered 12 and then have a position.
13 JUDGE McDADE: Well, I think what Mr.
14 Sipos is suggesting is an alterative. Alternative 1 15 is to object to the admission of the exhibit.
16 Alternative 2 -- and correct me if I'm wrong -- is to 17 offer testimony with regard to an explanation of New 18 York's view of it the way we had talked about the New 19 York-17 late-arriving exhibits. Is that correct? Are 20 we only talking about the objection?
21 MR. SIPOS: It would be a bit of a hybrid 22 of both, Your Honor. And I don't know sitting here --
23 JUDGE McDADE: So you believe it was only 24 the objection until I mentioned the other?
25 MR. SIPOS: No, Your Honor. Actually, in Neal R. Gross & Co., Inc.
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Page 2731 1 discussing the document this morning with my 2 colleagues, we thought perhaps it would be good to 3 have a symmetrical track for that exhibit as well as 4 the exhibits that were discussed at the end of the day 5 yesterday on contention 17, the Dr. Tolley exhibit and 6 the Dr. Sheppard exhibit.
7 JUDGE McDADE: Okay. I think it would be 8 appropriate to put the time frame of 30 days to file 9 an objection. Likewise, rather than filing any 10 additional testimony if you thought it was necessary 11 to do in order to explain it, if you could just file 12 a brief motion as soon as possible but within 30 days, 13 that would explain basically what you want to do. And 14 that way Entergy would have an opportunity to respond 15 to that motion before we make a decision whether to 16 receive it and then, you know, sort of delay the 17 closing of the record on that contention because if we 18 allowed you to submit additional testimony, then I'm 19 sure Entergy would want to do the same.
20 So it would be within the 30 days, file 21 any objection. Within 30 days, if you believe it's 22 necessary for clarification to present additional 23 testimony to do file a motion to that effect, again, 24 as soon as possible, but, in any event, no later than 25 30 days. I think November 21st -- I didn't look at a Neal R. Gross & Co., Inc.
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Page 2732 1 calendar yet to see if that's a Saturday or a Sunday, 2 but if it is, it goes to the following Monday.
3 MR. SIPOS: Thank you, Your Honor.
4 JUDGE McDADE: Anything further from 5 Entergy, Ms. Sutton?
6 MS. SUTTON: No, nothing further, Your 7 Honor.
8 JUDGE McDADE: From Clearwater?
9 MS. RAIMUNDI: Yes, Your Honor. I would 10 like to remind the Board and parties that Ms. Dolores 11 Guardado will be available to join the Panel at 3:00 12 p.m. today.
13 JUDGE McDADE: Okay. Thank you. That was 14 left somewhat up in the air yesterday, and I 15 appreciate your giving us that head's up. We also 16 have arranged for an interpreter, who should be here 17 by that time as well.
18 MS. RAIMUNDI: Thank you, Your Honor.
19 JUDGE McDADE: From the staff, anything to 20 take care of before we get started?
21 MR. TURK: No, Your Honor.
22 JUDGE McDADE: Riverkeeper?
23 MS. BRANCATO: No, Your Honor.
24 JUDGE McDADE: Before we do get started, 25 let me just address the witnesses. We have a Neal R. Gross & Co., Inc.
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Page 2733 1 different group than we have had. Some individuals 2 have been here during the course of the hearing 3 earlier. But I want to make sure that you understand 4 sort of the ground rules.
5 Basically this is an opportunity for the 6 judges to ask questions of you. It is basically a 7 dialogue between us and you. If we ask you a 8 question, you respond to us.
9 There may well be disagreements between 10 one witness and another. We have witnesses 11 representing opposing parties. You don't talk back 12 and forth. If you want to answer a question, answer 13 the question that is put to you, we will ask questions 14 of the opposing witnesses seriatim. So it isn't a 15 situation where one of you talks back and forth to the 16 other. You talk to us.
17 Likewise, you'll notice when counsel talk, 18 they're not going to be addressing you directly.
19 They're going to be addressing us. So everything is 20 sort of derivatively through the Board.
21 The other thing is if, for any reason, any 22 of you feel that you need a short break, don't sit 23 there in silence. Try to get our attention. If we're 24 not observant, try to get the attention of your 25 counsel, who then won't be shy about asking us to take Neal R. Gross & Co., Inc.
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Page 2734 1 a short break.
2 I think that's it for preliminaries. It 3 is necessary that the testimony be under oath. We 4 have already read the testimony that you have 5 submitted. We don't plan to go over all of that 6 testimony again and repeat it. The purpose here is 7 simply for us to clarify in our minds the testimony to 8 make sure that we understand it and that we fully 9 understand the position of the parties on the issues.
10 At this point, would you please raise your 11 right hand?
12 (Whereupon, the witnesses were duly 13 sworn.)
14 JUDGE McDADE: One of the things we have 15 done on contentions as we go through this is to state 16 briefly what the Board views the contention is, which 17 then sort of informs the kinds of questions that we 18 are going to be asking.
19 We're not here for legal argument. This 20 is to find fact. The staff and the applicant have 21 both argued in legal briefs and I assume will continue 22 in post-hearing filings that the postulated accident 23 put forth by Clearwater are so remote as to not 24 require a consideration within the context of an 25 environmental impact statement and the environmental Neal R. Gross & Co., Inc.
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Page 2735 1 justice aspect of it. But that is a legal argument.
2 What we're here today to do is to determine fact.
3 Now, also we want to make clear this isn't 4 a challenge to the evacuation plan. This isn't a 5 challenge to a SAMA. What this is is, rather, a 6 challenge to an alleged lack of analysis into the 7 potential for disproportional increased exposure to 8 radiation to the environmental justice community and 9 a lack of discussion of viable mitigating factors that 10 would limit such disproportionate exposure. That's 11 what we're trying to do. And we're going to focus on 12 health impacts to the degree that we can and 13 mitigation to prevent disproportional health risks to 14 the environmental community.
15 That said, let me get started with the 16 staff. The first question, the environmental justice 17 aspect of the environmental impact statement is 18 located in section 4. Is that correct?
19 MR. RIKHOFF: Jeff Rikhoff with the staff.
20 Yes, Your Honor.
21 JUDGE McDADE: Okay. And could we put up 22 New York exhibit 000133B? Okay. I obviously have the 23 wrong exhibit. Can you slide down? Okay. What we're 24 looking for is section page 4-49. So if you can go 25 down perhaps to page 117 of this? Environmental Neal R. Gross & Co., Inc.
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Page 2736 1 justice, can you pull that? Okay.
2 This is the beginning of your analysis of 3 the environmental justice aspect of the environment 4 impact. Is that correct?
5 MR. RIKHOFF: Jeff Rikhoff for the staff.
6 Yes, Your Honor.
7 JUDGE McDADE: Okay. And if we can slide 8 forward to page 4-55, 117, line 19? Okay. Could you 9 highlight the beginning of line 19 there, 10 "Socioeconomic connotations"? Okay. Okay.
11 Do you see that, sir?
12 MR. RIKHOFF: Yes, I do.
13 JUDGE McDADE: Okay. And then beginning 14 at line 26, "Potential impacts." That is basically 15 your discussion with regard to the impact on minority 16 populations.
17 My question to you is to tell us sort of 18 conceptually how you get from the fact that you're 19 saying there is no change to the conclusion that there 20 is no disproportional impact.
21 MR. RIKHOFF: The difference in the two 22 statements is we tried to determine what the effects 23 of license renewal will be on minority and low-income 24 populations. The only potential impact is the 25 continued operation of the plant and the radiological Neal R. Gross & Co., Inc.
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Page 2737 1 risks that are associated with that continued 2 operation.
3 JUDGE McDADE: I understand. And I 4 understand your conclusion that the impact during the 5 period of extended operation will be substantially 6 similar to the impact in the period before extended 7 operation.
8 My question, given that this is an 9 environmental justice section, how do you get to the 10 conclusion, not that they will be the same as before, 11 but that, whatever those impacts are, they won't be 12 disproportional to the minority population, as opposed 13 to the population generally?
14 MR. RIKHOFF: In our review process, the 15 steps that we follow are identifying the minority 16 low-income populations. I think I need to back up a 17 little bit in order to help provide this explanation.
18 JUDGE WARDWELL: Back up all the way and 19 define what is environmental justice. How do you go 20 about evaluating it? How do you define the 21 populations? And then go possibly if you haven't 22 gotten that far back to where you -- as far back as 23 you were going to go, --
24 MR. RIKHOFF: Okay.
25 JUDGE WARDWELL: -- it would help me.
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Page 2738 1 MR. RIKHOFF: In identifying minority and 2 low-income populations, we use census data. And we 3 identify all peoples who are of a different race, of 4 a different ethnicity.
5 Simply, we subtract out the white 6 non-Hispanic population from the total population that 7 is being examined. The remaining population is 8 minority by definition.
9 We then look at what effects license 10 renewal would have on all populations.
11 JUDGE WARDWELL: Before you say that, 12 could you just define environmental justice. And how 13 is it evaluated generally?
14 MR. RIKHOFF: Well, the purpose for the 15 executive order is it requires us to consider the 16 effects of our licensing action on minority and 17 low-income populations. And this analysis is 18 attempting to do that.
19 JUDGE WARDWELL: But doesn't that 20 executive order or somewhere in guidance or whatever 21 else say that if there is a disproportionate impact to 22 those minorities, that needs to be brought attention 23 to the decision-maker so that they know that as they 24 move forward?
25 MR. RIKHOFF: Yes, Your Honor.
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Page 2739 1 JUDGE WARDWELL: And how is that applied 2 when we're dealing with the license renewal? What are 3 we comparing to? What impacts to the minorities are 4 we comparing to the general population? Who is the 5 general population in that case?
6 MR. RIKHOFF: It's the total population.
7 JUDGE WARDWELL: Of what?
8 MR. RIKHOFF: Of the -- in this case, the 9 50-mile radius.
10 JUDGE WARDWELL: Only the 50-mile radius?
11 MR. RIKHOFF: That is correct.
12 JUDGE WARDWELL: And so how would you 13 achieve a disproportionate impact to a minority 14 compared to the general population if we're only 15 talking a general population that is within that 16 50-mile zone?
17 MR. RIKHOFF: We first have to identify 18 what effect the plant will have in the -- in this case 19 in the license renewal term that would be different, 20 new -- a new effect, added or increased effect, that 21 may occur in the license renewal term. In this 22 instance, in our review, we could not identify 23 anything beyond a continued release of radiological 24 nuclides under normal operating conditions.
25 JUDGE WARDWELL: Why wouldn't you compare Neal R. Gross & Co., Inc.
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Page 2740 1 it to the no-action alternative; i.e., the plant 2 shutting down?
3 MR. RIKHOFF: Well, we do that in the 4 alternatives impact discussion.
5 JUDGE WARDWELL: Of the environmental 6 justice analysis or the rest of the NEPA analysis?
7 MR. RIKHOFF: In the rest of the NEPA 8 analysis.
9 JUDGE WARDWELL: But, I mean, as far as 10 environmental justice is concerned, isn't that the 11 thing that's of interest to the decision-makers on 12 whether to renew the license or not?
13 MR. RIKHOFF: Yes. Yes, it is.
14 JUDGE WARDWELL: And so under that -- I'm 15 confused. You're saying under the general NEPA, you 16 go back and look at environmental justice or is it 17 done as part of the environmental justice review to 18 start with?
19 MR. RIKHOFF: No. We do the analysis as 20 part of the -- whether the impacts of renewing the 21 operating license and then in the alternatives 22 discussion in chapter 8, then we look at the 23 environmental justice impacts of various alternatives, 24 including the no-action alternative.
25 JUDGE WARDWELL: Thank you.
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Page 2741 1 MR. TURK: Your Honor --
2 JUDGE McDADE: But as far as environmental 3 justice itself, all of your discussion of 4 environmental justice is in this section 4 that was 5 just called up of the environmental impact statement?
6 MR. RIKHOFF: No, Your Honor. This is 7 just the effects of continued operations.
8 JUDGE McDADE: Okay. And the effects of 9 closing it are where?
10 MR. RIKHOFF: In chapter 8, the -- of the 11 chapter providing analysis and discussion of the 12 impacts of various alternatives to renewing the 13 operating license.
14 JUDGE McDADE: Okay. And in chapter 8, do 15 you have a further discussion, then, of the impact on 16 environmental justice populations?
17 MR. RIKHOFF: Yes, Your Honor.
18 JUDGE McDADE: Okay. But those are 19 socioeconomic, basically the same kinds of discussion 20 here, that it would be small? And you're talking 21 about jobs. You're talking about radiation dose.
22 You're not talking about any of the issues that were 23 raised by Clearwater. Correct?
24 MR. RIKHOFF: That's correct, Your Honor.
25 JUDGE McDADE: Okay. Mr. Turk, did you Neal R. Gross & Co., Inc.
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Page 2742 1 have a question?
2 MR. TURK: Yes, Your Honor. If I may, I 3 have a copy of the environmental impact statement in 4 front of me. I would refer Your Honor, first of all, 5 to Dr. Wardwell's question about the executive order 6 and the background of environmental justice that 7 begins at page 4-49 of the EIS. And then the 8 discussion of environmental justice for the no-action 9 alternative is found at page 8-26.
10 And, with Your Honor's permission, I would 11 ask if Mr. Rikhoff has a copy of the EIS, that, from 12 time to time, if he feels a need to refer to it, that 13 he be given an opportunity to find whatever answers he 14 may need in the EIS itself.
15 JUDGE McDADE: Okay. Thank you, Mr. Turk.
16 Also, Mr. Rikhoff, when you are looking to 17 determine what to put into your environmental impact 18 statement with regard to environmental justice, what 19 do you look for for guidance?
20 There is -- and I think it has been 21 introduced as exhibit 000260, Entergy 000260, which is 22 the NRC policy statement, and Entergy 000261, which is 23 LIC-203. Are those the principal documents that you 24 look to for guidance?
25 MR. RIKHOFF: Yes, Your Honor.
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Page 2743 1 JUDGE McDADE: Is there anything else 2 other than those documents?
3 MR. RIKHOFF: There is also the CEQ 4 guidance document. That provides general guidance to 5 federal agencies in conducting environmental justice 6 reviews.
7 JUDGE McDADE: But that's outside the NRC?
8 MR. RIKHOFF: That's correct.
9 JUDGE McDADE: But your principal guidance 10 is those two documents?
11 MR. RIKHOFF: Yes, Your Honor.
12 JUDGE McDADE: Okay. And they help you 13 focus within your environmental justice analysis 14 within the 50-mile radius around Indian Point?
15 MR. RIKHOFF: Yes, Your Honor.
16 JUDGE McDADE: Judge Wardwell?
17 JUDGE WARDWELL: You mentioned that you 18 considered the minority populations to be the general 19 population minus the non-Hispanic whites. Is that 20 correct?
21 MR. RIKHOFF: Yes, Your Honor.
22 JUDGE WARDWELL: So are elderly or 23 prisoners or nursing home people or any of those 24 others not part of the minority population as covered 25 by environmental justice? Is that your position?
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Page 2744 1 MR. RIKHOFF: They're not covered because 2 the executive order doesn't identify those populations 3 by name. It's limited to only minority and low-income 4 populations, but --
5 JUDGE McDADE: How does the low-income 6 come in? I mean, wouldn't the non-Hispanic white 7 low-income people fall within that group, then?
8 MR. RIKHOFF: Yes, Your Honor.
9 JUDGE McDADE: But what you're saying is 10 specifically there is guidance that says that blacks, 11 Hispanics, Native Americans, there's a delineated 12 group, which is considered minority for the purposes 13 of environmental justice?
14 MR. RIKHOFF: Yes, Your Honor.
15 JUDGE McDADE: And then there is another 16 delineated group for those people who are low-income?
17 MR. RIKHOFF: Yes, Your Honor.
18 JUDGE McDADE: And individuals such as the 19 disabled or the mobility-impaired, it would not be 20 included within the environmental justice category 21 based on the fact that they were mobility-impaired or 22 disabled, but they might be included within it because 23 they were a member of a minority group or fell within 24 the low-income criteria?
25 MR. RIKHOFF: Yes, Your Honor.
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Page 2745 1 JUDGE McDADE: Do you have a follow-up 2 question?
3 JUDGE WARDWELL: Not -- I've got other 4 questions.
5 JUDGE McDADE: Yes.
6 JUDGE WARDWELL: I'm satisfied on this 7 area.
8 JUDGE McDADE: Okay. Within the 50-mile 9 area around Indian Point, when you look at minority 10 populations, such as black or Hispanic -- and I 11 believe that you concluded, according to the 2000 12 data, that there were about 20.7 percent black, 20.5 13 percent Hispanic within that 50-mile area? Does that 14 sound approximate? You don't have --
15 MR. RIKHOFF: It sounds approximately 16 correct, yes, Your Honor.
17 JUDGE McDADE: Correct. And then, adding 18 in additional minorities that were enumerated in the 19 guidance, you came out to about 48.7 based on the 20 guidance that you were given as far as identification 21 of minorities approximately?
22 MR. RIKHOFF: Approximately, yes, Your 23 Honor.
24 JUDGE McDADE: Slightly under 50 percent?
25 MR. RIKHOFF: Yes, Your Honor.
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Page 2746 1 JUDGE McDADE: Okay. Now, if we have 2 under 50 percent minorities in the overall area, is 3 there a way under that guidance that minorities are 4 taken into consideration?
5 MR. RIKHOFF: Well, yes, Your Honor.
6 JUDGE McDADE: Okay.
7 MR. RIKHOFF: What that indicates is just 8 the total percentage of minority population within the 9 50 miles. A way of identifying those minority --
10 larger concentrations of minority population is 11 comparing the percentage, or in this case 50 percent, 12 to the percentage of minority or low-income 13 populations in various block groups. If they exceed 14 that percentage, then they're identified as a minority 15 population block group.
16 JUDGE McDADE: Okay. And specifically I 17 think, in figure 4-5 of your environmental impact 18 statement, you did that?
19 MR. RIKHOFF: Yes, Your Honor.
20 JUDGE McDADE: Judge Wardwell?
21 JUDGE WARDWELL: Could you say again why 22 are you going to these block groups? They are census 23 block groups, correct?
24 MR. RIKHOFF: Yes. We choose block groups 25 because income information is also provided at the Neal R. Gross & Co., Inc.
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Page 2747 1 block group level. The smaller, more -- the smaller 2 spatial area of census block does not provide income 3 information at that smaller level.
4 JUDGE WARDWELL: Did I read something 5 about a club quarters classification? Does that ring 6 a bell? I've got it in my notes here.
7 MR. RIKHOFF: The group quarters, Your 8 Honor?
9 JUDGE WARDWELL: Is that what it is?
10 Group quarters?
11 MR. RIKHOFF: Yes. There's a census 12 designation that's group quarters.
13 JUDGE WARDWELL: That's probably what it 14 was. What does that mean?
15 MR. RIKHOFF: Essentially it means people 16 who are not living in a single family home in what 17 would -- may be considered normal living conditions, 18 but they are in an institution, either, you know, for 19 medical reasons or for incarceration.
20 JUDGE McDADE: Okay. And you have two 21 categories, actually: those in group living, 22 institutionalized; and those in group living, not 23 institutionalized.
24 MR. RIKHOFF: That's correct, Your Honor.
25 JUDGE McDADE: Mr. Wilkie has pulled up Neal R. Gross & Co., Inc.
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Page 2748 1 the exhibit, figure 4-5 from -- and it's on New York 2 000133B. That is the document you are referring to?
3 That is the part of your report that you're referring 4 to?
5 MR. RIKHOFF: Yes, Your Honor.
6 JUDGE McDADE: And the dark spaces -- and 7 this shows it visually -- are environmental justice 8 communities within the 50-mile radius. Even though 9 the overall population is majority, majority, there 10 are areas within the 50-mile radius that are 11 predominantly minority. And that's what this was 12 designed to show?
13 MR. RIKHOFF: Yes, Your Honor, higher 14 concentrations of minority populations.
15 JUDGE McDADE: Okay. And you do that by 16 census block or census block group?
17 MR. RIKHOFF: Census block group.
18 JUDGE McDADE: Okay. And census block 19 group is one step up from census block?
20 MR. RIKHOFF: That's correct.
21 JUDGE McDADE: Okay. And you're using 22 that because the census block doesn't include 23 information like on income with individuals?
24 MR. RIKHOFF: That's correct, Your Honor.
25 JUDGE McDADE: So the census block group Neal R. Gross & Co., Inc.
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Page 2749 1 is the smallest census group that would include the 2 information you need in order to do your environmental 3 justice analysis?
4 MR. RIKHOFF: Yes, Your Honor.
5 JUDGE McDADE: Okay. Getting back, once 6 you have identified within this 50-mile area 7 environmental justice communities; for example, 8 communities that are predominantly black, 9 predominantly Hispanic, do you do anything as part of 10 your analysis to determine whether or not there is 11 homogeneity within that community?
12 In other words, do you treat all blacks 13 the same, all Hispanics the same, or would you have 14 any way of capturing, for example, based on 15 Clearwater's discussion individuals who were in an 16 environmental justice population but who were, say, 17 institutionalized as Sing Sing, as opposed to 18 individuals who were in an environmental justice 19 community, say, in the North Peekskill?
20 MR. RIKHOFF: Yes, we could. Yes.
21 JUDGE McDADE: Okay. How?
22 MR. RIKHOFF: We could go in and using 23 both -- other sources of information besides census, 24 you know, overlay the location of certain institutions 25 by map and draw a correlation between, you know -- as Neal R. Gross & Co., Inc.
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Page 2750 1 far as the census data can take it down. And then you 2 could do field investigations if it's warranted.
3 JUDGE McDADE: Okay. Do you? In other 4 words, as part of your environmental justice analysis, 5 do you try to do a determination as to whether, say, 6 the minority population at Sing Sing would be affected 7 differently and disproportionately from the general 8 population, even if you concluded that minorities 9 generally were not?
10 MR. RIKHOFF: If we determined that there 11 was an environmental effect that we needed to 12 investigate further, we would. We would try to 13 determine what specific effects that effect has on 14 that population.
15 JUDGE McDADE: Okay. To change the 16 situation slightly and just to do this by way of 17 analogy, the situation that you didn't discuss here, 18 if you had an environmental community, an 19 environmental justice community, down river from a 20 facility and there was anticipated leakage of 21 radionuclides, you would view that environmental 22 justice community separately, even though the 23 population generally might not be affected and other 24 environmental justice communities within the 50-mile 25 radius might not be affected. Is that correct?
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Page 2751 1 MR. RIKHOFF: Yes, Your Honor, we could do 2 that --
3 JUDGE McDADE: Okay. Well --
4 MR. RIKHOFF: -- in that situation.
5 JUDGE McDADE: Okay. Based on the 6 guidance you have, is that something that you should 7 do and would do?
8 MR. RIKHOFF: Based on the guidance we 9 have, yes, it's something we would do.
10 JUDGE McDADE: Okay. Because what I'm 11 trying to get at is from you is whether or not if you 12 have identified environmental justice communities 13 within the 50-mile area, whether you treat each of 14 them separately based on the estimated impact that the 15 facility could have.
16 MR. RIKHOFF: Insofar as we try to 17 determine whether the effect would be disproportionate 18 or not or high and adverse.
19 JUDGE McDADE: Okay. Now, going back to 20 the question I asked at the beginning, you have made 21 a determination and articulated it in the 22 environmental impact statement that continued 23 operation of the facility would not have a different 24 impact during the period of continued operation than 25 it has now. There would not be a substantial Neal R. Gross & Co., Inc.
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Page 2752 1 difference on either the socioeconomic or dose impact 2 on environmental justice communities, correct?
3 MR. RIKHOFF: That is correct, Your Honor.
4 JUDGE McDADE: Did you as part of your 5 analysis make any attempt to determine, whether it be 6 now or whether it be during the extended period of 7 operation, the impact, not would be different from 8 what it had been but would be disproportional for the 9 environmental justice community generally or for 10 certain segments of the environmental justice 11 community within the 10 or 50-mile radius of Indian 12 Point?
13 MR. RIKHOFF: From an operational 14 standpoint, we could not discern that there would be 15 an increase in the workforce at the plant or that 16 radiological releases would be increased. So we had 17 -- we have no effect for which to investigate, no 18 increased new or added effect that we would be 19 required to investigate under our current guidance.
20 JUDGE McDADE: Okay. What I'm getting at, 21 again, is not an increased effect but, having 22 identified an effect, whether that effect would fall 23 disproportionately on the environmental justice 24 community; that is, minority and low-income 25 individuals, or some subset, some of the environmental Neal R. Gross & Co., Inc.
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Page 2753 1 justice community? In other words, not the overall 2 impact, not the direct impact, but whether whatever 3 that impact was, perhaps, you know -- and assuming 4 that it's part of the current operating basis, it's 5 viewed as an acceptable impact, the plant is 6 operating, continues to operate, my question is just, 7 do you have any way of capturing and under the 8 guidance that you have any way of identifying 9 disproportional impact, as opposed to changes in 10 impact?
11 MR. RIKHOFF: No, Your Honor. Under 12 current operating conditions, we have no way of 13 discerning that at this time.
14 JUDGE KENNEDY: This is Judge Kennedy.
15 Just following along the same themes, you used the 16 term "operational impacts." Does that include 17 accidental releases, limiting this just to normal 18 releases due to the operation of the facility?
19 MR. RIKHOFF: Normal operating conditions, 20 no unusual events.
21 JUDGE KENNEDY: So is there a separate 22 categorization for unusual events, accidents, or 23 accidental releases from the facility?
24 MR. RIKHOFF: There's a discussion of 25 postulated accidents in the sites, but this part of Neal R. Gross & Co., Inc.
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Page 2754 1 the document discusses the effects of renewing the 2 operating license of the nuclear power plant.
3 JUDGE WARDWELL: By "this" section, you 4 mean section 4?
5 MR. RIKHOFF: Chapter 4, yes.
6 JUDGE KENNEDY: And I guess we have talked 7 about chapter 4 and chapter 8. Is there yet another 8 chapter that discusses non-operational releases or 9 accidental releases?
10 MR. RIKHOFF: Yes, Your Honor, chapter 5.
11 JUDGE KENNEDY: Okay. So we're going to 12 get to chapter 5 yet. I'm going to write chapter 5 13 down. I've got questions on accidental releases. So 14 if you want to continue on the operational path, I'm 15 going to circle back around and talk about accidental 16 releases. So if you want to continue on?
17 JUDGE McDADE: Let me just ask a couple of 18 questions before we move to that. Your report based 19 on 2000 census data, year 2000 census data, 20 anticipates for a basis of 48.47, but that is an 21 approximate minority population. Do you make any 22 attempt to project that to the period of extended 23 operation; in other words, to determine what the 24 minority population would be in 2010, 2020, 2035?
25 MR. RIKHOFF: Not in license renewal, Your Neal R. Gross & Co., Inc.
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Page 2755 1 Honor.
2 JUDGE McDADE: Okay. Why not?
3 MR. RIKHOFF: It's not a requirement of 4 our guidance. It's expected in -- in the 5 environmental justice analyses that I have conducted 6 in the past, it's expected that the -- once you have 7 identified the location of concentrations of minority 8 and low-income populations, that they're expected to 9 remain concentrated in those areas and that it may 10 grow in size but that -- but other than that, you're 11 just looking at percentage increases in the overall 12 population of minority and low-income. It's generally 13 been increasing in all of the analyses that I have 14 been conducting.
15 JUDGE McDADE: Okay. Under the analysis 16 you did based on the 2000 data, the minority 17 population was just slightly below 50 percent. Had 18 the minority population exceeded 50 percent, would 19 your analysis have been materially different?
20 MR. RIKHOFF: No, Your Honor.
21 JUDGE McDADE: So, therefore, if the 22 minority population at the beginning of the period of 23 extended operation, 2015, were projected to be 55 24 percent or 60 percent, there would be no difference in 25 the analysis that you undertook?
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Page 2756 1 MR. RIKHOFF: That's correct, Your Honor.
2 JUDGE McDADE: Okay. Can you explain for 3 us why?
4 MR. RIKHOFF: Because what you are talking 5 about is just the overall percentage in the total 6 population. The focus of the analysis is determining 7 where minority and low-income populations are in 8 relation to the power plant and what effects the 9 proposed action, in this case license renewal, would 10 have on those populations and whether that would 11 create a new effect or an increased effect or added 12 effect that we would need to investigate further.
13 JUDGE McDADE: And you did not do any 14 analysis with regard to the impact of severe accident.
15 Is that correct?
16 MR. RIKHOFF: That is correct, Your Honor.
17 JUDGE McDADE: So, therefore, you would 18 not have done based on your understanding of the 19 guidance any analysis to determine whether or not 20 environmental justice population generally or segments 21 of that population who were transport-dependent would 22 receive a higher dose or a different dose in the event 23 of a severe accident. That just was outside what you 24 understood your marching orders to be?
25 MR. RIKHOFF: That's correct, Your Honor.
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Page 2757 1 JUDGE McDADE: Okay. So any of the 2 details, for example, that were raised by Clearwater 3 of whether environmental justice populations would be 4 more likely to shelter in place or to evacuate in a 5 severe accident, that would have been and was outside 6 the scope of your analysis?
7 MR. RIKHOFF: That's correct, Your Honor.
8 JUDGE WARDWELL: Could you say again why 9 that is outside your scope? Is it based on guidance 10 and past history or is there a regulation that exempts 11 it?
12 MR. RIKHOFF: Regulation Table B1 in 10 13 CFR Part 51. I don't have that in front of me, but it 14 basically concludes that the probability of a severe 15 accident is small based upon the continuing Aging 16 Management Programs that the risks of accidents are 17 small.
18 JUDGE WARDWELL: Well, I can accept that, 19 but that still doesn't address the issue of whether or 20 not, even though they are small, they didn't say 21 they're nonexistent. And so isn't it environmental 22 justice to see whether or not minority or low-income 23 is disproportionately affected? Could there not be a 24 situation where they are disproportionately affected, 25 even though the overall impact is small that was used Neal R. Gross & Co., Inc.
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Page 2758 1 in characterizing it for the GEIS?
2 MR. RIKHOFF: Yes, Your Honor. That is 3 possible. But in the case of license --
4 JUDGE WARDWELL: So let me just fix the 5 point.
6 MR. RIKHOFF: Sure.
7 JUDGE WARDWELL: The regulation doesn't 8 say that environmental justice is exempt from 9 considering severe accidents and the resulting 10 activities that take place from a severe accident.
11 What you are saying is that the regulations say that 12 the impacts from severe accidents are small.
13 MR. RIKHOFF: That's correct, Your Honor.
14 JUDGE WARDWELL: Thank you.
15 MR. TURK: Your Honor, may I comment as a 16 matter of law?
17 JUDGE McDADE: No, as far as I'm 18 concerned. I mean, we're going to have plenty of 19 opportunity to comment as a matter of law. And, as I 20 indicated at the beginning, I am sure that you will.
21 But is this specifically -- before you comment on a 22 matter of law, why do you want to?
23 MR. TURK: Your Honor, the final 24 supplemental environmental impact statement is a 25 document prepared under NEPA. The National Neal R. Gross & Co., Inc.
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Page 2759 1 Environmental Policy Act --
2 MR. WEBSTER: Excuse me.
3 MR. TURK: May I make my one-sentence 4 statement, Your Honor?
5 JUDGE McDADE: Let Mr. Turk finish, Mr.
6 Webster.
7 MR. TURK: NEPA requires the agency to 8 address or to consider the reasonably foreseeable 9 impacts of the licensing action. Severe accidents by 10 definition are beyond the reasonably foreseeable. And 11 that has to be kept in mind when we talk about this 12 contention.
13 MR. WEBSTER: Objection, Your Honor. It 14 mischaracterizes the law.
15 JUDGE McDADE: Well, it doesn't really 16 matter whether it mischaracterizes it or correctly 17 characterizes it. We have to decide the law. And 18 what I indicated at the beginning of the session is 19 that our purpose here was to do fact-finding, that we 20 after finding those facts will apply it to the law as 21 we see it and, as I also indicated, that all of the 22 parties will have an ample opportunity to comment on 23 that in this post-hearing briefs.
24 JUDGE KENNEDY: This may be a good time to 25 -- and maybe you'll take us to chapter 5, but there's Neal R. Gross & Co., Inc.
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Page 2760 1 a statement in the prefiled testimony from the staff.
2 And I'd ask Mr. Wilkie to put up NRC exhibit 000063 3 and take us to page 34 of that document.
4 And, again, I'm not sure this testimony is 5 attributed to the current witness, but I'll start 6 there and allow any other member of the NRC witnesses 7 to respond.
8 If we start at the bottom of page 34, 9 starting with the sentence, "While it is possible," I 10 wonder if Mr. Rikhoff could read that sentence? Yes.
11 If you could highlight that, maybe start reading that 12 sentence? And then we'll move to completion of the 13 sentence on page 35?
14 MR. TURK: Your Honor, may I comment for 15 a moment? Sherwin Turk. If you'll notice, the 16 beginning of that answer has the initials "PAM." That 17 is the testimony of a staff witness, Patricia 18 Milligan.
19 JUDGE KENNEDY: She's free to respond. If 20 you would like to read and then respond, that would be 21 appreciated.
22 MS. MILLIGAN: Certainly. while it is 23 possible that special populations, such as those 24 incarcerated at Sing Sing could receive radiation 25 doses higher than other populations that are Neal R. Gross & Co., Inc.
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Page 2761 1 immediately able to self-evacuated, any doses received 2 would be within the EPA dose guidelines.
3 JUDGE KENNEDY: Thank you. That's good 4 enough.
5 It struck me when I read that that this 6 was an indication of a disproportionate effect.
7 Again, it does come from the accident conditions. And 8 I'm trying to make sure I understand the ongoing 9 testimony that has been going on here in terms of not 10 looking at disproportionate effects during either 11 accidents or operational issues.
12 So maybe you could help us provide some 13 context for this statement. This to me looks like an 14 attempt to look for a disproportionate effect, maybe 15 not a well-stated question. But maybe if you could 16 start with for accident conditions, are the effects on 17 the environmental justice population, disproportionate 18 effects, considered or looked for and then analyzed?
19 MS. MILLIGAN: I'm in emergency 20 preparedness. So I look at it on an ongoing 21 operational basis. And I don't specifically look at 22 EJ populations in the context of emergency 23 preparedness because we plan for all populations, not 24 just EJ populations.
25 JUDGE KENNEDY: This statement is Neal R. Gross & Co., Inc.
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Page 2762 1 attributed, I believe, according to Mr. Turk, to you.
2 MS. MILLIGAN: That is correct.
3 JUDGE KENNEDY: Can you, then, tell us 4 what this statement means to you and what you're 5 intending to convey here?
6 MS. MILLIGAN: Certainly. The 7 Environmental Protection Agency has guidelines for 8 wanting to take action in the event of a radiation 9 emergency, either at a power plant or other sort of 10 facility.
11 The guidelines -- and these are echoed 12 also by International Council on Radiation Protection 13 and others -- are about ten rem, which are upward 14 bounds of 100 millisievert. Below those, there are 15 ranges. Those that are easy to evacuate can 16 self-evacuate.
17 There is a range where a recommendation 18 from the Environmental Protection Agency is 19 approximately one to five rem. For those that require 20 additional assistance, incarcerated populations, 21 institutionalized populations, the range could range 22 from one up to ten rem or five to ten rem depending 23 upon the situation at hand.
24 All of these doses are well within the 25 established federal guidelines. So to me as a health Neal R. Gross & Co., Inc.
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Page 2763 1 physicist, that would not represent a disproportionate 2 impact on an institutionalized or incarcerated 3 individual.
4 JUDGE KENNEDY: You would at least 5 acknowledge that it is a different effect?
6 MS. MILLIGAN: Sure. But if a neighbor 7 chooses not to evacuate when others evacuate, they 8 could also receive a dose that could be different.
9 That doesn't mean it's disproportionate. If it's 10 within the guidelines that we have established for the 11 safety of the public, then in my mind as a health 12 physicist, that is not a disproportionate impact.
13 JUDGE McDADE: How did you conclude that 14 any doses received would be within EPA dose 15 guidelines?
16 MS. MILLIGAN: When we do dose projections 17 and accident analysis looking to make a protective 18 action recommendation, we take a look at the plant 19 parameters, the releases. We do a forward-looking 20 dose projection over four days.
21 Environmental Protection Agency says that 22 you would integrate your dose forward over four days 23 to arrive at a one rem or ten rem or five rem number.
24 The four days is chosen because that is a reasonable 25 period of time to ensure that you are able to provide Neal R. Gross & Co., Inc.
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Page 2764 1 for the population in those areas.
2 So we're not looking at ten rem coming 3 immediately. It would be something over four days.
4 If the accident condition were such that it looked 5 like over a four-day forward-looking dose projection, 6 that you would be approaching ten rem, then you would 7 start to move, evacuation, or relocate that 8 population. And you would have the opportunity to get 9 them out well before the ten rem dose was ordered.
10 JUDGE KENNEDY: Would you need to look at 11 the facility where the people were sheltered in place 12 prior to evacuation in order to make any kind of 13 reasonable calculation as to the dose that they could 14 potentially receive?
15 MS. MILLIGAN: I'm not quite sure I 16 understand what you're looking at there, sir.
17 JUDGE KENNEDY: Under the hypothesis you 18 just described, somebody is just standing out in the 19 field five miles south of Indian Point and there was 20 a release. How would you determine how long that 21 person could stand out there before they had a dose 22 that was outside EPA guidelines?
23 MS. MILLIGAN: Oh, I see what you're 24 saying. Yes, sir. No. The projected action, the 25 forward-looking dose projections don't consider the Neal R. Gross & Co., Inc.
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Page 2765 1 impact of shielding of a building. So it would 2 automatically assume that there is no -- it assumes 3 there is no building.
4 JUDGE KENNEDY: Yes.
5 MS. MILLIGAN: So it assumes that you're 6 essentially that fencepost person sitting out there 7 receiving a dose for the whole four days without any 8 buildings or any other effects to the shelter.
9 JUDGE KENNEDY: So, given the way that you 10 are conducting your analysis, whether an individual is 11 standing out in an open field, whether they are in a 12 building that provides minimal shielding or 13 practically none or in a building that provides 14 excellent shield, your analysis looks to the most 15 exposed?
16 MS. MILLIGAN: We would consider that with 17 -- yes, for the doses at which we would start to 18 recommend -- state; I'm sorry -- which the state would 19 start to recommend making the decisions to evacuate 20 the populations.
21 The NRC has spent a lot of time looking at 22 the impacts of evacuation, sheltering, and some 23 combination thereof. Protective actions are not 24 either/or. There's always a combination thereof. You 25 may choose to shelter, which could reduce your dose Neal R. Gross & Co., Inc.
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Page 2766 1 for a period of time, and then you choose to evacuate 2 a population.
3 So our recommendations are always based on 4 -- the study, the works that we have done at NRC 5 suggest that that is the best alternative going 6 forward is to do a recommendation, do a combination of 7 both.
8 If you shelter and there's been a plume 9 that has left deposition over a period of time, your 10 internal dose inside your building could rise because 11 of air flow and bringing materials in and 12 concentrating on the environment. However, we know 13 that if you -- with a shelter, a population, and a 14 plume would go overhead, your dose could be lower, 15 then, to evacuate that population afterwards. So we 16 look at the whole picture when we make our 17 recommendations in our guidance.
18 JUDGE KENNEDY: Doesn't it assume that the 19 plume will dissipate over, that there will be some 20 disposition of radionuclides anywhere under the plume?
21 MS. MILLIGAN: Yes. And that's factored 22 in the dose projections. It's internal and external 23 dose. So that would include inhalation; groundshine, 24 four-day groundshine.
25 JUDGE KENNEDY: Okay. In this analysis Neal R. Gross & Co., Inc.
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Page 2767 1 where you say that any doses received would be within 2 EPA dose guidelines, does that calculate in 3 populations that ultimately could never be evacuated, 4 for one reason or another?
5 MS. MILLIGAN: I'm not sure I understand.
6 Could never be evacuated?
7 JUDGE KENNEDY: Yes.
8 MS. MILLIGAN: All populations can be 9 evaluated.
10 JUDGE KENNEDY: And let me pose as a 11 hypothetical some of the evidence that was presented 12 by Clearwater. For example, Sing Sing is a prison 13 that has approximately 1,700 and something inmates.
14 It is located in an area that would be a likely avenue 15 for a plume south of Indian Point.
16 And, again, this isn't fact-finding. This 17 is just talking about what was presented by Clearwater 18 is that it would be difficult, it not impossible, to 19 evacuate the population of Sing Sing in any kind of an 20 expeditious way, that it would take more time to just 21 shackle the prisoners, putting aside all of the other 22 transportation issues and perhaps the lack of staff to 23 accomplish it in order to move them out. And then 24 there would be a significant issue as to what to do 25 with almost 2,000 individuals who have been Neal R. Gross & Co., Inc.
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Page 2768 1 incarcerated for violent crimes.
2 MR. SLOBODIEN: Your Honor? Your Honor?
3 JUDGE KENNEDY: Yes?
4 MR. SLOBODIEN: I'm Michael Slobodien for 5 the applicant. I'm the Director of Emergency Programs 6 for Entergy. I have specific knowledge regarding your 7 question because of my involvement with the Indian 8 Point emergency plans, including those which are 9 applicable to Sing Sing. If you'd like, I can help 10 with this response.
11 MS. MILLIGAN: Sure. I'd be happy to do 12 that. I met with Colonel Michael Kirkpatrick, the 13 head of New York Department of Corrections, who is the 14 highest-ranking official there, also head of their 15 correctional emergency response team. And I sat with 16 him on September 30th for about three hours and went 17 through the entire emergency planning for Sing Sing 18 and other correctional facilities for other types of 19 emergencies in New York State and --
20 JUDGE McDADE: Okay. Let me interrupt you 21 here for a second. And then, again, this is not an 22 emergency-planning contention, but I just wanted to --
23 again, I posed a hypothetical. And the statement that 24 you made on page 35 of your testimony presupposes that 25 you would be able to react to the incident and make a Neal R. Gross & Co., Inc.
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Page 2769 1 determination of an appropriate time to begin or 2 augment evacuation.
3 MS. MILLIGAN: That's correct.
4 JUDGE McDADE: And, again, this is a 5 hypothetical. It doesn't suggest that there is or 6 there isn't a population that couldn't be, but what 7 I'm saying is your statement here presupposes that 8 every population at some point could be evacuated.
9 MS. MILLIGAN: That's correct. And New 10 York Department of Corrections is absolutely confident 11 that they would be able to evacuate Sing Sing Prison 12 should they be notified by the Westchester County 13 Emergency Management or by the governor that that 14 would be necessary to do.
15 And, having reviewed their plans and 16 talked extensively to staff, I am very confident that 17 that would be able to occur.
18 JUDGE McDADE: Okay. I don't want to get 19 too much into emergency planning, but -- sir?
20 MR. SLOBODIEN: Thank you, Your Honor.
21 The emergency plan's goal and the 22 requirement is to provide reasonable assurance for 23 protection of the public health and safety for all 24 members of the public, regardless of their location, 25 regardless of their condition. As a result, the plans Neal R. Gross & Co., Inc.
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Page 2770 1 that had been developed are specifically designed to 2 accomplish that.
3 So in the case of Sing Sing, we know that 4 the County of Westchester, in which Sing Sing is 5 located, has the ability to notify the correctional 6 officials and has -- and the correctional officials 7 have the ability to carry out in all hazards and 8 emergency planning, which includes the capability of 9 doing evacuation, we know that, in part, from the 10 development of the research done by James Lee Witt at 11 the request of Governor Pataki at the time.
12 JUDGE McDADE: Does that give a reasonable 13 estimate as to the amount of time it would take to 14 remove the population of Sing Sing to a safe area 15 outside the 50-mile radius?
16 MR. SLOBODIEN: Your Honor, Mr. Witt 17 described the method by which an evacuation would be 18 accomplished. I don't recall that he specified the 19 times.
20 And details of the evacuation plan and the 21 all-hazards emergency plan for Sing Sing are, as you 22 might understand, because of the security nature 23 restricted. So I personally have not seen them.
24 And I do -- I am familiar with the Witt 25 report, which describes how such actions would be Neal R. Gross & Co., Inc.
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Page 2771 1 accomplished. I don't recall that it gives times.
2 JUDGE McDADE: Okay. Which then takes us 3 back to Ms. Milligan. Without knowing how long it 4 would take to evacuate, are you still confident that 5 your statement that it wouldn't be beyond the EPA 6 guidelines would be received?
7 MS. MILLIGAN: I spoke extensively with 8 Colonel Kirkpatrick about the details of the plans.
9 And, as Mr. Slobodien indicated, they are, for a 10 variety of reasons, security reasons, not available to 11 the public.
12 They will be able to -- upon notification 13 by Westchester County and the governor, they will be 14 able to evacuate the population in a timely manner to 15 ensure that they don't receive doses in excess of 16 federal guidelines.
17 JUDGE McDADE: Okay. Thank you.
18 JUDGE KENNEDY: I guess maybe it's time to 19 go back, but first let me confirm, Ms. Milligan, your 20 work is in emergency planning, emergency preparedness 21 and you don't feel confident to speak to the issue of 22 accidental releases from Indian Point and the effect 23 on the population from an environmental justice 24 standpoint?
25 MS. MILLIGAN: From an EJ population? No, Neal R. Gross & Co., Inc.
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Page 2772 1 I'm not.
2 JUDGE KENNEDY: Then I guess we're back to 3 Mr. Rikhoff.
4 MS. MILLIGAN: Sorry.
5 JUDGE KENNEDY: And I'm assuming we're 6 going to talk about chapter 5. We've heard about the 7 operational impacts and its impact on the 8 environmental justice population. Can you walk us 9 through the analysis that is performed for accidental 10 releases if they are and how it cascades into the 11 environmental justice community?
12 If you want to call up an exhibit, just 13 let us know. And we'll have it pulled up.
14 MR. RIKHOFF: I don't know what the 15 exhibit number is, but it's the EIS for Indian Point 16 on page 4-53.
17 MR. TURK: Your Honor, Sherwin Turk. May 18 I say something in response to your question to Ms.
19 Milligan? The question was framed in terms of whether 20 she was comfortable speaking about accidental releases 21 in terms of environmental justice populations.
22 She is a health physicist. So if you have 23 questions regarding accidental releases, she may be in 24 a position to provide information to you.
25 JUDGE KENNEDY: This question was very Neal R. Gross & Co., Inc.
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Page 2773 1 specific to the environmental justice community. And 2 I believe she responded in the negative. Is that 3 incorrect, Ms. Milligan?
4 MS. MILLIGAN: If you're looking for 5 environmental justice analyses, I can't do that. I 6 can talk to the releases from the plant. I can talk 7 to the releases to the population. But I don't 8 separate out environmental justice applications in 9 that. So I'd have to hear your question and work with 10 Mr. Rikhoff.
11 JUDGE KENNEDY: Would you in your capacity 12 as a health physicist be able to talk about any 13 potential disparity in radiation doses to the 14 environmental justice community?
15 MS. MILLIGAN: Absolutely I would talk 16 about radiation doses, certainly.
17 JUDGE KENNEDY: Would you be able to 18 differentiate the general population from the 19 environmental justice population?
20 MR. RIKHOFF: In this situation -- this is 21 Jeff Rikhoff for the staff. The environmental justice 22 analysis for license renewal considers the fact that 23 there are a lot of potential effects on minority and 24 low-income populations. The normal operating 25 conditions to the plant could have an effect as well Neal R. Gross & Co., Inc.
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Page 2774 1 as in the event of a severe accident.
2 However, since the Commission had ruled 3 that the likelihood of a severe accident is small, the 4 chapter 5 discussion of postulated accidents refers 5 the reader back to the Commission's 1996 license 6 renewal rule and GEIS analysis that determined that 7 the risks are small, that all the analyses of 8 accidents were conducted in the 1996 GEIS.
9 And, therefore, the conclusion is that 10 it's not likely to occur during the license renewal 11 term. Therefore, for a postulated severe accident, 12 the environmental justice analysis discussion on this 13 page; in particular, the paragraph beginning on line 14 26 --
15 JUDGE KENNEDY: And we're on page 43 of 16 NRC 00063?
17 MR. RIKHOFF: That's correct, Your Honor.
18 Thank you. We state that the potential impacts to 19 minority and low-income populations would mostly 20 consist of radiological effects. However, radiation 21 doses from continued operations associated with 22 license renewal are expected to continue at current 23 levels and would remain within regulatory limits.
24 Chapter 5 discusses the environmental 25 impacts from postulated accidents that might occur Neal R. Gross & Co., Inc.
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Page 2775 1 during the license renewal term, which include both 2 design basis and severe accidents. In both cases, the 3 Commission has generally determined that impacts 4 associated with such accidents are small because 5 nuclear plants are designed and operated to 6 successfully withstand design basis accidents.
7 And the probability weighted impact risks 8 associated with severe accidents were also small. So 9 we didn't continue the analysis any further with 10 regards to accidents.
11 JUDGE McDADE: Were you just reading from 12 chapter 5?
13 MR. RIKHOFF: That's correct, Your Honor.
14 JUDGE McDADE: Where in chapter 5?
15 MR. RIKHOFF: Oh, I'm sorry. I was 16 reading from chapter 4, this paragraph that's on the 17 screen. I'm sorry.
18 JUDGE McDADE: Is there any reference in 19 chapter 5 in hoc verba environmental justice 20 populations?
21 MR. RIKHOFF: No, Your Honor.
22 JUDGE KENNEDY: And, again, I guess we 23 have the same question with regard to accidents that 24 we do in terms of operational releases. How are we 25 informed by whether there is a disproportionate nature Neal R. Gross & Co., Inc.
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Page 2776 1 between the world of community populations, if we are 2 at all?
3 This just says it's small. It doesn't 4 differentiate across populations.
5 MR. SLOBODIEN: Your Honor, as a health 6 physicist, I also may be able to help with your 7 earlier question regarding --
8 JUDGE KENNEDY: Could you identify 9 yourself, please?
10 MR. SLOBODIEN: Yes, Your Honor. I'm 11 Michael Slobodien for the applicant. I might be able 12 to help with your question regarding whether or not it 13 is possible to assess impacts for environmental 14 justice populations. And the answer is yes. We would 15 only need to know where the population was located and 16 under what conditions it resides to be able to 17 determine a dose.
18 So dose and impact could be determined for 19 any portion of the population by knowing that 20 information, regardless of whether it is an 21 environmental justice population or not.
22 JUDGE KENNEDY: Would it be important, as 23 Clearwater has pointed out, to carry that further and 24 talk about the transportation dependencies and 25 evacuation concerns and its potential impact on these Neal R. Gross & Co., Inc.
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Page 2777 1 off-site doses?
2 MR. SLOBODIEN: Michael Slobodien for the 3 applicant, Your Honor. Such factors are considered 4 when we look at dose impact. We consider whether or 5 not populations will move and at what time they can be 6 moved within the broad goal of assuring protection for 7 public health and safety.
8 There is a range of values that we use for 9 dose, no single value. The highest objective from the 10 dose standpoint is to avoid clinically significant 11 doses.
12 JUDGE KENNEDY: Significance determined 13 by? What would be the criteria for significance, 14 then?
15 MR. SLOBODIEN: The EPA 400, which is an 16 Entergy exhibit, Your Honor, does describe what are 17 clinically significant doses. If you would like, I 18 can refer you to that.
19 MR. RIGGS: Your Honor, this is Jerry 20 Riggs for the applicant. I would like to also point 21 out that whenever we are looking at an environmental 22 justice analysis, we are considering 23 disproportionately high and adverse impacts.
24 JUDGE KENNEDY: Yes. I think we are going 25 to get to that. So hold that thought.
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Page 2778 1 MR. RIGGS: Yes, Your Honor.
2 MR. RUND: Your Honor, EPA 400 is Entergy 3 exhibit 00284.
4 JUDGE KENNEDY: Thank you.
5 MR. SLOBODIEN: And I'm specifically 6 referring to appendix C, page C-18.
7 JUDGE McDADE: I'm sorry? Could you 8 repeat that?
9 MR. SLOBODIEN: Yes, Your Honor. Appendix 10 C, page C-18.
11 JUDGE McDADE: Thank you.
12 JUDGE KENNEDY: All right. Thank you.
13 I guess that's where I was going. Where 14 I was going next is, in this document that's on 15 display here, page 00453, the phraseology of 16 "disproportionately high and adverse impacts" always 17 seems to be hung together as a phrase.
18 I don't know if this is a legal issue or 19 something the technical community can speak to, but it 20 seems in this document, there is some significance 21 being assigned to that.
22 Would anyone be willing to -- maybe start 23 with the staff and have them discuss if that is -- Mr.
24 Riggs will probably help us with -- have some 25 significance here.
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Page 2779 1 MS. MILLIGAN: This is Patricia Milligan 2 from the staff. From a health physics 3 emergency-planning perspective, as I mentioned 4 earlier, doses received within the guidelines would 5 not be considered to be adverse or disproportionate.
6 JUDGE KENNEDY: I'm just --
7 MS. MILLIGAN: So I wouldn't consider 8 that.
9 JUDGE KENNEDY: I guess in your capacity 10 as a health physicist, how would you interpret 11 disproportionate in this context? Disproportionate to 12 what?
13 MS. MILLIGAN: In this context, 14 disproportionate would be well outside the federal 15 guidelines that are established that could potentially 16 lead to some sort of health impact. And I think that 17 is where Mike was going with, Mr. Slobodien was going 18 with, with his charts.
19 So within this context and these accidents 20 and the emergency plans in the contentions that were 21 raised, doses that are received within the federal 22 guidelines, the guidelines are there to ensure that 23 things are set.
24 JUDGE KENNEDY: Yes. And I think that's 25 what -- and maybe it's just my confusion, but it seems Neal R. Gross & Co., Inc.
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Page 2780 1 like when we move -- and this is an environmental 2 justice contention -- the idea of a disproportionate 3 effect -- and now I'm putting my words in here -- a 4 portion of the community within the 50-mile region, I 5 don't know if this -- I don't know if anyone here can 6 really speak to it, but the use of the word 7 "disproportionate" -- and, as I understand it, you are 8 putting it in the context as compared to a regulatory 9 limit.
10 And since this is an environmental justice 11 analysis section, I'm struggling with I'm looking for 12 it to be disproportionate relative to the community 13 within the region. And I'm trying to reconcile that 14 wording.
15 JUDGE McDADE: Ms. Milligan, if I could --
16 and just don't agree with me just for the sake of 17 being agreeable. But, as I understand it, you're 18 saying that nobody would receive an inappropriate dose 19 but that you're not testifying that the Sing Sing 20 prisoner or the resident of Chappaqua would receive 21 the same dose or different dose. That's not what 22 you're addressing. You're addressing that neither of 23 them in you review would receive an inappropriate 24 dose, outside the guidelines?
25 MS. MILLIGAN: That's correct.
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Page 2781 1 JUDGE McDADE: Thank you.
2 MR. SLOBODIEN: Your Honor, Michael 3 Slobodien for the applicant. The criteria that we're 4 looking for is disproportionate and adverse. Adverse 5 in this case is determined by a dose that creates a 6 clinical response or a clinical measurable symptom.
7 If I can refer to the EPA guidance that I 8 did a moment ago where you see values, for example --
9 and it's a range of values, no single value. And the 10 reason it's a range of values is because of the 11 difference in human response to the ionizing 12 radiation.
13 But there is very strong guidance in EPA 14 and other sources that talks about what are the 15 thresholds for recognizing clinical effects of 16 exposure to radiation? The clinical thresholds 17 typically seem in the range of about 50 rem.
18 Therefore, the EPA guidance threshold for action, for 19 taking protective action, at 10 rem is far less and is 20 designed to ensure that there is no adverse action.
21 There may be, indeed, disproportionate 22 doses because doses could range from higher doses when 23 you are closer to the plant to lower doses as you are 24 further away. There is no effort to say that they 25 must be uniquely the same, but it's that they not be Neal R. Gross & Co., Inc.
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Page 2782 1 disproportionate from a clinical perspective.
2 JUDGE WARDWELL: And where is the origin 3 of that philosophy that you just described and/or 4 where does the origin of adopting the words 5 "disproportionately high and adverse impacts" come 6 from? Is it the original environmental justice letter 7 or is it some other origin of that phrase?
8 MS. MILLIGAN: If I could just add 9 something that clarify? It's actually spelled out 10 fairly clearly in the environmental justice guidance 11 under the National Environmental Policy Act. And I 12 think that's one of our exhibits. I don't have the 13 number here.
14 JUDGE McDADE: What is the title of the 15 document?
16 MS. MILLIGAN: It's "Environmental Justice 17 Guidance under the National Environmental Policy Act" 18 for the Council of Environmental Quality.
19 "Disproportionately high and adverse human health 20 effects. When determining whether human health 21 effects are disproportionately high and adverse 22 agencies are to consider the following three factors 23 to the extent practicable: whether the health effects 24 which may be measured in risks and rates are 25 significant, as employed by NEPA, or generally above Neal R. Gross & Co., Inc.
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Page 2783 1 accepted norms. Adverse health effects may include 2 bodily impairment, infirmity, illness, or death and 3 whether the risk or rate of hazard exposure by a 4 minority population, low-income population, or Indian 5 tribe to an environmental hazard is significant (as 6 employed by NEPA) and appreciably exceeds or is likely 7 to appreciably exceed the risk or rate to the general 8 population or other appropriate comparison group and 9 where the health effects occur in minority population, 10 low-income population, or Indian tribe affected by 11 acute or multiple adverse exposures from environmental 12 hazards."
13 So, from understanding this, we would not 14 see an adverse or disproportionately high impact to EJ 15 populations as a result of the severe accident with 16 the implementation of emergency-planning protective 17 action guides.
18 MS. GHOSH: Your Honor, for the record, 19 this is Anita Ghosh for the staff. That's Entergy 20 exhibit 00266 entitled "Council on Environmental 21 Quality. Environmental Justice Guidance Under the 22 National Environmental Policy Act."
23 JUDGE McDADE: Okay. Thank you.
24 One of the things -- and let me just raise 25 some issues with my two colleagues here. We are going Neal R. Gross & Co., Inc.
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Page 2784 1 to take a break in a little bit for one particular 2 reason. Ms. Guardado should be here by now. Is she?
3 MS. RAIMUNDI: Yes, Your Honor. This is 4 Karla Raimundi from Clearwater.
5 JUDGE McDADE: Okay.
6 MS. RAIMUNDI: Yes. Ms. Guardado is here.
7 Yes.
8 JUDGE McDADE: What we would want to do is 9 to bring her forward. Also, our interpreter is here.
10 And what we would want to do is to allow the parties 11 to satisfy themselves of the interpreter's 12 qualifications so that when we come back, we will be 13 able to swear Ms. Guardado and also swear the 14 interpreter and if there are any objections to the 15 interpreter, to get those on the record.
16 But do you have any questions before we 17 take that break if you'd like to --
18 JUDGE KENNEDY: I do not.
19 JUDGE McDADE: Judge Wardwell?
20 JUDGE WARDWELL: I do not.
21 JUDGE McDADE: Why don't we take ten 22 minutes? So it is a quarter after now. Well, why 23 don't we stay because you may have to talk to the 24 interpreter. And we will break until half past.
25 We're in recess.
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Page 2785 1 (Whereupon, the foregoing matter went off 2 the record at 3:16 p.m. and went back on the record at 3 3:34 p.m.)
4 JUDGE McDADE: Okay, the hearing will come 5 to order. We have with us Ms. Guardado, and a Spanish 6 language interpreter, Ilana Gross-Kirzner. Ms. Gross-7 Kirzner is certified as an interpreter by the Unified 8 Courts of the State of New York. Does any of the 9 parties have an objection to her serving as an 10 interpreter for Ms. Guardado? Does the staff?
11 MS. GHOSH: No objection, Your Honor.
12 JUDGE McDADE: Clearwater?
13 MR. WEBSTER: No objection, Your Honor.
14 JUDGE McDADE: Riverkeeper?
15 MS. BRANCATO: No, Your Honor.
16 JUDGE McDADE: New York?
17 MS. DEAN: No, Your Honor.
18 JUDGE McDADE: Entergy?
19 MR. TENPAS: No, Your Honor.
20 JUDGE McDADE: Okay. First of all, could 21 the interpreter just raise your right hand?
22 [INTERPRETER SWORN.]
23 JUDGE McDADE: Okay, and will you please 24 interpret beginning for Ms. Guardado. Ms. Guardado, 25 it is necessary for you to testify under oath. Would Neal R. Gross & Co., Inc.
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Page 2786 1 you please raise your right hand?
2 Whereupon, 3 DOLORES GUARDADO 4 was called as a witness and, having been first duly 5 sworn, was examined and testified as follows:
6 [OATH AND RESPONSE TRANSLATED.]
7 MS. GUARDADO: Yes, I swear.
8 JUDGE McDADE: Okay, thank you. Dr.
9 Edelson (sic), you are a professor of Environmental 10 Psychology. Could you very briefly explain to us what 11 that area of study entails?
12 DR. EDELSTEIN: Is this working?
13 JUDGE McDADE: Yeah.
14 DR. EDELSTEIN: I have a Ph.D. in Social 15 Psychology. At the beginning of the environmental 16 era, when the National Environmental Policy Act was 17 signed, which is New Year's Day 1970, you had evolved 18 within many fields environmental subfields, and in 19 psychology at that time you had a subfield develop 20 called Environmental Psychology.
21 You have parallels in other fields as 22 well. But as an environmental psychologist, I have 23 spent my entire career, since my doctoral period, 24 where I did my dissertation on environmental topics, 25 I've spent my entire time looking at the relationship Neal R. Gross & Co., Inc.
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Page 2787 1 between people and the surrounding environment, and 2 the mutual influences that people have on their 3 environment and the environment has on people.
4 JUDGE McDADE: Okay, and as part of that, 5 have you been called on to do environmental justice 6 reviews?
7 DR. EDELSTEIN: I have included 8 environmental justice in the record I've done. I 9 haven't done an explicit EJ review, but I have written 10 extensively about EJ, and I've been involved with EJ 11 since Bob Bullard did his work in the early 1980's, 12 and I first learned about it.
13 So but I haven't testified narrowly on EJ.
14 Usually, my testimony deals with psychosocial impacts, 15 which includes EJ.
16 JUDGE McDADE: Based on your education and 17 experience, how would you suggest that an 18 environmental impact be measured geographically?
19 DR. EDELSTEIN: Well, I think that the 20 nature of how an interpretation has been made of the 21 Executive Order 12898 has been to use a geographic 22 system, where one attempts to identify census blocks, 23 as we see here.
24 But I think that the NRC's guidance is 25 correct, in my view, in suggesting that one has to be Neal R. Gross & Co., Inc.
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Page 2788 1 particular or look at the peculiar impacts on EJ 2 communities, because in fact EJ communities may not 3 correspond to what appears on census blocks.
4 Census block data, as we in fact see in 5 this instance, can easily lead an agency to totally 6 miss the issues. So the impact statement that was 7 done by the agency entirely omits the question of Sing 8 Sing and the other EJ populations that have come up, 9 in no small part because they rely only on that census 10 data. I think that what's required --
11 JUDGE McDADE: Let's go back a second.
12 When you rely on the census data, do you mean census 13 group data, as opposed to census block data, or are 14 you meaning something else?
15 DR. EDELSTEIN: Well, I'm glad that you 16 brought that up, because I think it's interesting that 17 the argument was made that the larger scale data, the 18 census group, the group block data, had to be relied 19 upon, because there was no income data at that scale.
20 But there is actually -- I think the 21 smaller scale had no income data. There is, however, 22 data on minority status, on race, for the smaller 23 scale. So it's possible to do an EJ analysis at a 24 smaller scale than was done here. It was the fact 25 that they relied on needing the income to do it.
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Page 2789 1 But in fact, if you look at what was 2 produced, they could have just as easily worked at a 3 smaller scale. What I'm talking about is actually 4 going to a smaller scale yet. It involves being 5 familiar with the distribution of groups, the 6 demographics, the populations that exist in an area 7 that may be reasonably impacted.
8 If we take the emergency planning zone and 9 we take the larger zone, the point is that the staff, 10 in preparing the document, I believe has an obligation 11 to have enough familiar with the social system that 12 they're working with, to recognize environmental 13 justice issues that may not be visible in the type of 14 analysis that's done now.
15 We actually have a perfect example of 16 those, if you want to indulge me, which is that there 17 was a report prepared by a staff member of NRC, 18 discussing environmental justice, and that report 19 actually gives an example of what I'm talking about.
20 Let me have one second. Oh, here it is.
21 It's Clearwater Exhibit 51, I believe. It's a report 22 by a gentleman named Matthews. As we see here, he's 23 the Director of the Division of New Reactor Licensing, 24 and his report is "Environmental Justice and the NRC:
25 A Progression to Excellence."
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Page 2790 1 I don't know if you're familiar with this 2 document and how slowly I should walk through it, but 3 if we move to the next couple of pages, move past this 4 one and this one, the next page. They present here --
5 JUDGE McDADE: Please, don't walk slowly.
6 DR. EDELSTEIN: Okay.
7 JUDGE McDADE: This is an exhibit we've 8 received and we reviewed it.
9 DR. EDELSTEIN: Fine. Then I'll walk 10 quickly. I'll stride. The point that's made here is 11 that in the first case that's presented, the LES case, 12 they use a conventional approach and they miss the 13 impacts. In the second case, they start out with a 14 conventional approach, but then they made themselves 15 available and learned about a community that was an EJ 16 community, that they were then able to -- thank you.
17 They were then able to meet with and to 18 identify what the issues were, and to accommodate in 19 a mitigation the needs of that community. That 20 basically illustrates my answer to your question, 21 which is I believe that the approach that's used now, 22 there's no harm associated with it, unless you don't 23 go any further.
24 But I believe that you need to push 25 further as an agency, to really look and see what the Neal R. Gross & Co., Inc.
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Page 2791 1 subgroups are that will not appear. The NRC, I 2 believe, has a directive that indicates that the 3 studies should not artificially inflate or dilute the 4 effects that are studied, and I believe that the 5 approach that's currently used actually dilutes, or 6 allows effects to be washed away; that an approach 7 that is more on the ground would find.
8 In the case of Sing Sing, which I 9 particularly looked at, and some of the other cases 10 that my colleagues here have, are prepared to discuss, 11 we have issues that in fact were missed entirely by 12 the current analysis.
13 I would submit that the agency would be 14 well-served if its approach, if its method bored 15 deeper, so that it did not miss those instances.
16 JUDGE McDADE: In this particular 17 instance, a subset of the minority population such as 18 Sing Sing, in your view needs to be viewed singularly, 19 to look at the specific impacts that it would have on 20 them. You're not suggesting, for example, not to 21 suggest one way or the other a belief of whether 22 nursing homes are or not EJ communities.
23 But there are over 1,000 nursing homes 24 within the 50-mile area. Not that they should look at 25 the impact of each one of a 1,000, but when you have Neal R. Gross & Co., Inc.
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Page 2792 1 a large environmental justice community such as Sing 2 Sing, the specific impact on that and the individuals 3 there needs to be considered, in your view?
4 DR. EDELSTEIN: Well yes. I mean I 5 believe that a proper social impact assessment would 6 identify the other populations as well. But the 7 particular obligation to look at EJ communities would 8 certainly not missing something so obvious as Sing 9 Sing, which is actually on the maps that are prepared 10 in the impact assessment.
11 But yet, even though they're there, even 12 though it's apparent, there is no discussion of it.
13 So I believe that, you know, the obligation of a hard 14 look impact assessment is to look at a whole range of 15 dynamics, but certainly a key EJ population should not 16 be missed as Sing Sing was.
17 JUDGE McDADE: And excuse me, could you 18 call up Clearwater 30? Could you blow that up just a 19 little bit? Okay. Now the sort of maroon areas on 20 there are identified as environmental justice 21 communities; is that correct, Dr. Edelson?
22 DR. EDELSTEIN: To my understanding, yes.
23 JUDGE McDADE: Okay. If you slide up just 24 a little bit, the other way. Okay, indicates 25 potential EJ areas for those. Okay. Now is the area Neal R. Gross & Co., Inc.
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Page 2793 1 south of Indian Point on the east side of the river, 2 just where it says "Ossining," does that include Sing 3 Sing?
4 DR. EDELSTEIN: Based on my comparison of 5 maps, which I did, I believe it does, yes.
6 JUDGE McDADE: Okay. But you're saying 7 that it's not enough just to identify that there is an 8 environmental justice population there, but it needs 9 to be looked at specifically to the impact on that 10 environmental justice community; is that correct?
11 DR. EDELSTEIN: That is correct. In fact, 12 the whole purpose of not addressing environmental 13 justice in the generic study, but having it go into 14 the site-specific study, is that the peculiar, 15 particular or site-specific issues can in fact be 16 magnified and understood at that level, so that you, 17 the decision-makers, have information as you make 18 decisions about what the potential environmental 19 justice impacts are.
20 Just putting it on a map and not even 21 recognizing that there are any implications of it 22 doesn't, in my mind, make any sense. When you look at 23 Sing Sing and the nature of an incarcerated 24 population, which has, as I've discussed at length in 25 my report, characteristics that are not even similar Neal R. Gross & Co., Inc.
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Page 2794 1 to other EJ populations necessarily, you would never 2 understand any of these issues by simply looking at 3 that splotch on this diagram.
4 JUDGE McDADE: Okay. Now at Sing Sing, I 5 believe your testimony was approximately 89 percent of 6 the population is minority?
7 DR. EDELSTEIN: It was 87. It was 8 somewhere in that range.
9 JUDGE McDADE: Okay, and you also 10 identified other similar or somewhat similar 11 facilities within the 50 mile, Rockland City Jail, 12 Westchester County Jail that had similar high rates of 13 minority populations?
14 DR. EDELSTEIN: That is correct.
15 JUDGE McDADE: Okay. From your 16 standpoint, how should the minority population at Sing 17 Sing and these other similar facilities, and for our 18 purposes right now, to treat them as a unified group, 19 and if you believe not, to differentiate between them, 20 and I believe you testified that there was also 21 approximately almost 25 other institutions, jails, 22 within the 50 mile region that would have similar 23 issues. Not identical, but similar; correct?
24 DR. EDELSTEIN: Yes.
25 JUDGE McDADE: Okay. How would the -- you Neal R. Gross & Co., Inc.
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Page 2795 1 had discussed in your testimony, but could you 2 elaborate for us the special circumstances of a 3 population at facility like Sing Sing, of how they 4 would be impacted differently than individuals living 5 in the surrounding area?
6 DR. EDELSTEIN: Well, I think the 7 similarities are few, and the differences are many, 8 and let me come back to a comment that was made in the 9 prior discussion, about the possibility that people 10 could leave the area and evacuate, but the people in 11 Sing Sing would not have volition as to whether they 12 could leave or not. They're incarcerated.
13 Whether or not they have an opportunity to 14 evacuate or whether they stay is up to others besides 15 themselves, and that's the primary difference, that 16 loss of control over the decision-making means many 17 things, but among them, one has to trust those in 18 control to in fact have the best interests in hand and 19 the ability to deliver them, so that you feel secure.
20 We're talking here about a potential 21 radioactive release. As an environmental 22 psychologist, one of the first things that comes to my 23 mind is the fact that the kind of a risk personality 24 of a radioactive release is that you have a hazard 25 that's invisible.
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Page 2796 1 You don't know if it's there; you don't 2 know if it's not there. You don't know how much 3 you're being exposed to, and as a result, it's quite 4 possible during an event for people to become 5 extremely concerned when there may not be much 6 exposure and to be not much concerned when there is an 7 exposure.
8 So we have a situation that in a captive 9 environment, where people may believe that they're 10 being exposed to a hazard, but no action is being 11 taken to remove them, you're really inviting a 12 situation in which the social order disintegrates.
13 The guards, of course, are in exactly the 14 same situation. We can look most clearly to the 15 Katrina situation, where the ACLU did a superb report, 16 taking a look at what happened in the penitentiary 17 there, the Orleans Penitentiary, and what we see, the 18 Orleans Parish Penitentiary, OPP, what we see is a 19 social disintegration.
20 What we see is inmates left locked in 21 cells, even in the face of flooding. What we see is 22 guards who were locked in. We see other guards who 23 didn't show up or couldn't get in. We see the whole 24 prison situation, which is normally is a total 25 institution, a carefully controlled situation, we see Neal R. Gross & Co., Inc.
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Page 2797 1 that control structure potentially breaking down.
2 We also see potential racism and disregard 3 for people. We see mistreatment of prisoners. We see 4 people escaping, even though they were taking major 5 risks to do so. I can go on and on. I detail this at 6 length in my report, and of course the ACLU does as 7 well.
8 JUDGE McDADE: And that creates risks 9 beyond the risk of just dose?
10 DR. EDELSTEIN: Well you know, as a 11 psychologist, I have to point out that the issue of 12 health risk is a broader question of dose, and 13 depending on where one is looking for authority, the 14 word "health" does come up.
15 JUDGE McDADE: But looking at health in a 16 broader sense, we start off with the normal situation 17 for people outside of Indian Point, where they may be 18 exposed to dose. They also have the opportunity of 19 staying or leaving.
20 DR. EDELSTEIN: That's correct.
21 JUDGE McDADE: Your testimony, as I 22 understand it, and I'm not trying to put words in your 23 mouth. I just want to make sure I understand your 24 position correctly, is that in addition to the 25 potential health risk from dose, there was a potential Neal R. Gross & Co., Inc.
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Page 2798 1 health risk from the breakdown of social order, that 2 there would be apprehension on the part of the prison 3 population.
4 There would likely be a smaller guard 5 population, as they also chose to exit the area, and 6 as a result, the ability to maintain order, which is 7 essential in a facility like Sing Sing, would be 8 diminished.
9 DR. EDELSTEIN: I would agree with your 10 characterization completely.
11 JUDGE McDADE: Well don't agree with it.
12 I'm just trying to make sure I understand your 13 characterization.
14 DR. EDELSTEIN: No, I think you're 15 completely accurate in summarizing many of my points.
16 I can go further. I mean I think --
17 JUDGE McDADE: With regard to the dose 18 itself, is there anything specifically about a 19 facility like Sing Sing that would tend to increase 20 the dose, again just not focusing on the loss of 21 social order but on the dose itself, that would be 22 distinct from, you know, residents in the area?
23 DR. EDELSTEIN: Well, of course. We have, 24 I think, acknowledged already that these "special 25 populations," a category under which Sing Sing falls, Neal R. Gross & Co., Inc.
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Page 2799 1 would not be evacuated.
2 Initially, they would be sheltered, and as 3 such they would be allowed to receive a dose in a 4 hazardous situation as much as ten times higher, 5 certainly a disproportionately higher dose than other 6 people who were not incarcerated, or not in a special 7 facility.
8 So I think there is a dose implication.
9 We have a question of how long people might be held in 10 that situation. In the case of the Japanese reactor 11 at Fukushima-Daiichi and in Chernobyl, we know that 12 those events lasted on the order of ten to twelve 13 days, when you know, the intensity of the event.
14 Of course, those events are never over; 15 they continue. But the intense period was an extended 16 period. If we started sheltering folks for that 17 amount of time, their dose would be very high. Of 18 course, the question of whether they would be 19 evacuated is a very vague issue. When would they be 20 evacuated? How far into it?
21 That decision apparently is, as far as I 22 can understand it, would not be made until some time 23 during the event, and then there would be a question 24 of the efficacy of whether it could be carried out.
25 An allusion was made to a plan, which we have never Neal R. Gross & Co., Inc.
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Page 2800 1 seen, and that information has not been shared before.
2 But the question is that even in the face 3 of good planning, which the Japanese certainly had, I 4 don't know about the Russians or the Soviets, but the 5 Japanese certainly had good plans. What we learned 6 from Fukushima, among many other things, is that the 7 best laid plans can go awry when you're dealing with 8 the complexity of, in that case, multiple disasters.
9 So you know, I think there's a reasonable 10 expectation that the prisoners in Sing Sing could be 11 there for an extended period of time, potentially 12 longer than others. There's a clear complexity even 13 from the time it takes to shackle the prisoners to 14 move them.
15 The question of whether the number of 16 vehicles which Mr. Witt, for example, enumerates, 17 would they be able to be commandeered all at one time?
18 Would the evacuation occur over a long period of time 19 if it did occur? These are all things we don't know.
20 But I think on the question of dose, we can assume 21 that this population may very well have a higher dose 22 and a disproportionately higher dose than people who 23 are not incarcerated.
24 JUDGE McDADE: Okay. Part of the NEPA 25 analysis involves identifying impacts. Part of it Neal R. Gross & Co., Inc.
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Page 2801 1 also involves identifying mitigating criteria, 2 mitigating potential. In your view, under your 3 analysis, what would you focus on as the principle 4 avenues of mitigation?
5 DR. EDELSTEIN: Well, I think there are a 6 number of issues, and I do enumerate them, so I may 7 not cover all of them in my comments. But I think 8 first of all there's the question of shelter in place.
9 Since we know this population in Sing Sing is going to 10 be sheltered, what we don't know is to what extent 11 Sing Sing provides shelter.
12 People may be locked in, but are they 13 being sheltered, in effect. You know, that's a 14 question of ventilation, it's a question of whether 15 windows are intact.
16 It's a question of whether or not people 17 have ventilation. On one hand, if they have exterior 18 ventilation, they may be exposed in that way.
19 If the ventilation is shut down, they'll be suffering 20 in a different way.
21 So the question of doing an assessment of 22 Sing Sing and its ability to in fact serve as shelter 23 is the first step I would recommend.
24 JUDGE McDADE: And given the fact that 25 NEPA, for a federal agency, is basically requiring Neal R. Gross & Co., Inc.
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Page 2802 1 them to do an investigation, an analysis, an 2 evaluation, but the federal agency has no capacity 3 control things, such as the physical structure at 4 Sing Sing, is it your testimony that even though they 5 can't control those factors, they need, as part of 6 their analysis, to evaluate them and make a 7 determination of their capacity to mitigate, so that 8 that would inform the decision for the federal action 9 here, whether to license or not relicense?
10 DR. EDELSTEIN: Well, your question 11 perceptively gets at one of the key issues here, which 12 is that the operation of Indian Point is not occurring 13 in a vacuum.
14 It's occurring in a complex environment, 15 and even if we just look at two institutions, Sing 16 Sing and Indian Point, we realize that the ability of 17 -- to mitigate impacts originating at Indian Point has 18 a great deal to do with many factors relating to the 19 operation of Sing Sing, from its management and 20 control structure and its physical structure, and 21 whether or not enough water is kept on hand, and a 22 whole host. Whether members of the public are allowed 23 to stay there. There's a whole set of issues here.
24 So to answer your question, I would say 25 that you can't get away from these interactive Neal R. Gross & Co., Inc.
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Page 2803 1 complexities, that in fact in this instance, the 2 mitigation of an impact potentially occurring at 3 Indian Point requires that information be known about 4 Sing Sing, and that one have some reasonable 5 expectation that Sing Sing can be made protective for 6 the people who are captive there.
7 They are an EJ population that is captive, 8 and unless one can have reasonable assurance that they 9 will be protected, then there is no mitigation for the 10 potential impact at Indian Point.
11 JUDGE McDADE: Okay. Mr. Papa?
12 MR. PAPA: Yes sir.
13 JUDGE McDADE: No need to rise, sir. At 14 one point, you were a resident at Sing Sing?
15 MR. PAPA: Yes, for 12 years sir.
16 JUDGE McDADE: How long ago?
17 MR. PAPA: I went in in 1985 and I left, 18 I received executive clemency from Governor Pataki in 19 1997.
20 JUDGE McDADE: And based on your 21 experience there, can you share with us your 22 observations about the physical structure, that would 23 either make it appropriate or inappropriate as a 24 shelter in place?
25 MR. PAPA: Well, as a shelter in place, it Neal R. Gross & Co., Inc.
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Page 2804 1 would be totally inappropriate. It's a very old 2 structure built in 1826. The buildings, I lived there 3 for 12 years, so I know the place inside-out.
4 Let me just describe the housing areas.
5 I lived in many of the blocks, the housing blocks, 6 incarcerate about 700 prisoners at one time. There 7 are stacked tiers upon tiers of cells, like a giant 8 airplane hangar in a room, and they have huge windows.
9 There's no ventilation system in the 10 building at all. The only way you can get air is if 11 the windows are open, and sometimes the windows are 12 shut. From my experience, prisoners break the windows 13 all the time, so there's always holes in the windows.
14 If a situation happened, where a nuclear 15 accident occurred, it would be total chaos, in my 16 view. There's, at that point, the survival instincts 17 would kick in. Many of the prisoners, they're doing 18 an extraordinary amount of time, a lot of them. So 19 they would have nothing to lose.
20 The danger element would be elevated, not 21 only for other prisoners but for also guards. It 22 would be total chaos. In shelter, not a good place to 23 be.
24 JUDGE McDADE: You mentioned the 25 ventilating system there. Would there be anyway to Neal R. Gross & Co., Inc.
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Page 2805 1 filter out any potential contaminants coming into --
2 MR. PAPA: No, because there is no 3 ventilation system. There's just a giant airplane 4 hangar with windows. That's it. There's no air 5 conditioning. This is very old buildings, the housing 6 areas. There's A block, B block, Honor block, and 7 they're very old, and the hallways are long corridors.
8 Very, when it's summer time, very humid. There's no 9 ventilation at all.
10 JUDGE McDADE: Okay. Dr. Edelson talked 11 about the potential for the breakdown of social order 12 under a circumstance such as a nuclear release nearby.
13 Based on your experience, is that a likely or an 14 unlikely probability?
15 MR. PAPA: Very likely. I lived there for 16 12 years. I've been through institutional riots, 17 where just a stabbing could cause the whole population 18 to go berserk. So if something like this happened, 19 like I said before, people's survival instincts will 20 kick in, and there will be total chaos throughout the 21 prison.
22 JUDGE McDADE: Can you elaborate on that?
23 What do you mean by "chaos"?
24 MR. PAPA: I mean the predatory prisoners 25 would take advantage. They would try to escape, let's Neal R. Gross & Co., Inc.
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Page 2806 1 say people were being evacuated. They would use that 2 as an advantage to try to escape. The prison, they'll 3 use it to cause a riot, to become violent, to try to 4 take over.
5 JUDGE McDADE: Would that put at risk the 6 health or welfare of the other individuals?
7 MR. PAPA: Everyone in the prison, 8 including guards.
9 JUDGE McDADE: Right. I believe in your 10 testimony you talked about the potential for arson.
11 How could that occur?
12 MR. PAPA: Oh yes. Just people would burn 13 their cells, light their mattresses up, start fires.
14 I've seen it happen without a potential hazard like a 15 nuclear incident.
16 JUDGE McDADE: And you're talking about a 17 precipitant that involved only one of two people, not 18 something that could be a precipitant for all 1,700 19 inmates?
20 MR. PAPA: Well, what happens in a setting 21 like this is a group mentality occurs, where if one 22 person did it, another person would emulate it and it 23 would go on, and the whole prison would catch on.
24 JUDGE McDADE: Okay. Dr. Larsen, I 25 believe you testified about the impact on health care, Neal R. Gross & Co., Inc.
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Page 2807 1 particularly for poor individuals, people who don't 2 have the ability to pay for medical care. Could you 3 elaborate on how they would be disadvantaged in the 4 event of an incident at Indian Point?
5 DR. LARSEN: Well, my experience directly 6 comes in terms of an environmental justice population, 7 from my experience being medical director of National 8 Disaster Medical System Operations in New Orleans, in 9 which it's something I hope I never, ever see again, 10 in terms of the total kind of breakdown of protection 11 for those who are sick, those who are in hospitals, 12 those who are in nursing homes, those people who are 13 disabled, minority individuals.
14 Essentially when I arrived in New Orleans 15 on August 31st of 2005, there were 40,000 people left 16 behind, who could not evacuate for one reason or 17 another. Primarily they were poor, they had no means 18 to, or else they were in a hospital or nursing home, 19 disabled and so on.
20 So that's the type of population that in 21 any disaster response we're extremely worried about, 22 and if we have advance notice, we certainly try to 23 evacuate those people ahead of time, especially based 24 on our knowledge of what happened at Hurricane 25 Katrina.
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Page 2808 1 The problem is is that, you know, as an 2 emergency room doctor, I have daily experience with 3 the fact that folks come in, and we are, as an 4 emergency department and as emergency docs and nurses, 5 and as hospitals, we're required to take care of 6 everyone. We can turn no one away, which I think is 7 a great thing.
8 However, the problem is is that if you 9 don't -- a lot of things we can't fix in the emergency 10 department, and certainly in the case of a nuclear 11 exposure, in which people needed follow-up, that's one 12 of the biggest problems, is us getting follow-up for 13 folks who do not have the resources, who do not have 14 insurance.
15 Even for folks who do have protection 16 under Medicaid, it is very hard to find a doctor that 17 will take patients who need Medicaid, especially a 18 patient who may have a problem like an orthopedic 19 problem and so on. So this is something that we deal 20 with.
21 Although we take care of them in the 22 emergency department and give them full care, many of 23 them need follow-up, and many of them need additional 24 care. If they don't have the resources, they are 25 often left to the street, left to their own devices, Neal R. Gross & Co., Inc.
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Page 2809 1 and then very often reappear in our emergency 2 departments in a much sicker way.
3 You know, one of the problems that 4 certainly would face us in any kind of an emergency 5 situation involving Indian Point is whether we would 6 have even the staff to take care of folks, because 7 people would be concerned about their own families.
8 We all live in the Greater Hudson Valley 9 area. I mean we do have some nurses that commute up 10 to 50, 60 miles, a few docs that do. But the Point is 11 that we all kind of live in this 50-mile corridor, and 12 certainly if there was some kind of nuclear problem, 13 I would, if I was not at home, I would certainly be 14 extremely concerned about my family and how they are 15 going to evade that, and whether I'm going to come to 16 work the next day or whatever.
17 So certainly, you know, medical folks, 18 police, fire, EMS, extremely dedicated, volunteers, 19 extremely dedicated will rise to an incredible level 20 in disasters, and have done all types of heroic 21 things. But the biggest thing that we have found, 22 that interferes with their ability to do that, is when 23 their own families are affected.
24 Not so much themselves, but what happens 25 with their own families, and worrying about those Neal R. Gross & Co., Inc.
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Page 2810 1 things, and that's what determines whether people, you 2 know, show up to work the next day, to perform their 3 duty or even at the very time that the incident may 4 occur.
5 So anyway, the experience of Katrina and 6 watching the thousands of folks that basically we hd 7 no hospitals that were functioning in the Greater New 8 Orleans area. There's approximately 24 of them. 23 9 had sustained significant damage due to flood waters.
10 The three that were operational had no staff, 11 precisely because of the reasons that I talked about, 12 because folks were dealing with their own tragedies.
13 Their own houses were flooded. Their own 14 -- they had lost family members. They were, you know, 15 whatever, dealing with all those series of problems, 16 and they couldn't get to work because the roads were 17 flooded and blocked and all those kinds of reasons.
18 So those hospitals, the three hospitals 19 that could structurally go on, didn't operate. Our 20 responsibility, and you know my responsibility in 21 terms of the federal government's response was 22 basically to set up a new hospital, and we did that in 23 the New Orleans International Airport, the Louis 24 Armstrong International Airport, and screened and took 25 care of 40,000 folks, which about 6,000 were extremely Neal R. Gross & Co., Inc.
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Page 2811 1 sick. 3,000 of them had to evacuated by U.S. military 2 jets over a period of -- to all across America over a 3 period of days.
4 And certainly, all these folks, in 5 addition to the flooding and all that stuff, were 6 exposed to a large variety of all kinds of toxic mess 7 that was completely, you know, had engulfed 80 percent 8 of New Orleans.
9 JUDGE McDADE: Okay. Doctor, focusing on 10 the environmental justice population within the area 11 of Indian Point, and focusing on the disparate effect 12 on that population as opposed to the population 13 generally, and I'm summarizing a bit here, but if you 14 think my summary is inaccurate, don't accept it.
15 But that you would anticipate, in the 16 event of a nuclear accident at Indian Point, that 17 there would be less medical care available in the 18 surrounding area than before the accident, for the 19 reasons that you stated.
20 DR. LARSEN: That's correct.
21 JUDGE McDADE: And as a result of that, 22 individuals who because of a lack of funds would be 23 unable themselves to transport out of the area to 24 receive and to seek medical treatment, that they would 25 be disadvantaged as opposed to more affluent Neal R. Gross & Co., Inc.
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Page 2812 1 population, that would be able to seek medical 2 attention in more remote areas?
3 DR. LARSEN: That's correct.
4 JUDGE McDADE: And would there also be an 5 issue for those people who chose to remain in the 6 long-term, that they would have, if they did not have 7 access to medical care through their personal funds or 8 through insurance, would be unable to get follow-up 9 monitoring or follow-up care for any exposure that 10 they may have received?
11 DR. LARSEN: Yes. In addition, one of my 12 big worries, just based on how regular folks who do 13 not have insurance and resources have to deal with 14 their illnesses on a daily basis.
15 JUDGE McDADE: Is there any other 16 disparate impact on low income people that you would 17 want us to focus on?
18 DR. LARSEN: Well again, those folks don't 19 have the vehicles, and especially folks who -- low 20 income folks who also have people with special needs 21 in their homes, who need special vehicles or have to 22 transport special devices; maybe there's a respirator 23 or maybe there is oxygen, maybe there is some type of 24 electronic device.
25 All those folks would not only need, you Neal R. Gross & Co., Inc.
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Page 2813 1 know, they need an additional form of transport, and 2 they do take often additional forms of transport, just 3 to get their own medical care. So those kind of 4 disabled populations and special needs populations are 5 always a huge concern in any kind of disaster 6 response.
7 But those people would not get evacuated 8 in a timely manner, would probably get higher doses, 9 and would also have much more problems in addition to 10 getting follow-up care.
11 JUDGE McDADE: Okay. Putting the focus 12 away, for the moment, for low income and putting it on 13 minority, what would be the disparate impact on 14 minorities in your view, from a health care 15 standpoint?
16 DR. LARSEN: Well I think unfortunately, 17 for minorities, they come from generally poorer 18 income, they don't have resources, they don't have 19 cars. If you look at who takes public transportation 20 around the Hudson Valley, you'll see primarily people 21 of color, Hispanics, Hispanic-Americans. They're the 22 ones who are on the buses.
23 They're the ones who, you know, that's how 24 they get around, so they don't have vehicles. They're 25 the ones that are on the trains. So when it would Neal R. Gross & Co., Inc.
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Page 2814 1 come to evacuation, that would be obviously a big, 2 just for the -- that would be a big problem. That was 3 exactly what the problem in New Orleans was, that 4 those folks didn't have a car. They didn't have a car 5 and they may not --
6 And the other thing they didn't have was 7 they didn't have money for a hotel when they got 100 8 miles out of New Orleans. They maybe didn't have 9 family. Maybe they didn't even have a phone to call 10 or those resources, or maybe those things were broke 11 down when they realized they needed to get out.
12 So you need, in order to be mobile in this 13 society, you need to have resources, and you need to 14 have a vehicle, you need to have a car and you need to 15 have cash, so that if you don't have family or you 16 don't have someone to take you in, or there's not a 17 shelter that you can go to, you know, you have some 18 way of providing for yourself for food and your family 19 and so on.
20 JUDGE McDADE: Okay. Do you focus at all 21 on the sort of unique pockets of environmental justice 22 populations, such as Sing Sing?
23 DR. LARSEN: We do. That became, and 24 again, a lot of this -- America had never experienced 25 a disaster like New Orleans before. So all these Neal R. Gross & Co., Inc.
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Page 2815 1 questions sort of came up. Hopefully, we will learn 2 some things. But what we certainly had to deal with, 3 you know, multiple prison populations in the Greater 4 New Orleans area, and actually in the whole Gulf 5 States.
6 Look, that affected 90,000 square miles.
7 So there was a lot of prisoners that needed to get 8 evacuated. A lot of them have ongoing medical issues 9 without any problems; some of them had additional 10 problems because of the flooding and sick and no water 11 and no food.
12 So all of those kinds of things become --
13 it's a very difficult sort of population to deal with, 14 in that you've got to have guards, you need 15 protection. There are some prisoners that are going 16 to be totally cooperative and are doing their time, 17 and maybe there's even obviously some people who are 18 there who are innocent.
19 But there are some folks who are in those 20 prison situations who want to get out, and will do 21 anything they can to go out, in terms of hurting and 22 harming medical folks, prison guards, whoever's in 23 charge of them, and will use that advantage. So those 24 kinds of situations have be set up, so that we can get 25 proper care.
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Page 2816 1 I mean giving medical care within a prison 2 population is a very sort of -- it's a specialty 3 actually, and because there's all the issues that go 4 along, you know, and there's all the questions that go 5 along with prisoner care. So it makes it very 6 difficult to do, and especially difficult to do if 7 you're in a kind of on the move, on the run. You've 8 got a population that is not in a stable, secure 9 building, which you can control.
10 JUDGE McDADE: Okay, thank you. Mr. Mair, 11 you're an employee of the New York Department of 12 Health?
13 MR. MAIR: That is correct, but I am not 14 here representing New York State Health Department.
15 I am here --
16 JUDGE McDADE: As a resident of Peekskill.
17 MR. MAIR: As a former resident of 18 Peekskill, but also as a national environmental 19 justice expert. In fact, I was amongst those who 20 helped draft the definition of terms of what is and 21 what isn't environmental justice.
22 I've traveled the country, training and 23 educating University professionals. I've testified 24 and spoke a training forums, the Albany Law School 25 with regards to training attorneys on environmental Neal R. Gross & Co., Inc.
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Page 2817 1 justice, environmental issues.
2 So while I have a statistics, GIS spatial 3 analysis background and a public health research 4 background professionally, my passion is that of 5 advocating for applying science and objective analysis 6 to the needs of serving the poor, and I do that as an 7 environmental justice, as it would say, organizer, and 8 a person who tries to help big government and big 9 business get it right.
10 JUDGE McDADE: Okay. You're involved with 11 several organizations that focus on environmental 12 justice issues?
13 MR. MAIR: That's correct.
14 JUDGE McDADE: Could you briefly describe 15 not just who they are, but what their purpose is, what 16 their function is, what they do?
17 MR. MAIR: Certainly. Let me go to the 18 beginning. Dr. Benjamin Chavis of the United Church 19 of Christ, who basically got a grant, pioneered the 20 initial study, along with Dr. Charles Lee, who's now 21 working at the EPA, who was the primary researcher at 22 that time. Vernice Miller, who happened at that time 23 to be a graduate assistant and intern there, they 24 published the first toxic waste and race analysis.
25 Up until then, we've had issues of spills, Neal R. Gross & Co., Inc.
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Page 2818 1 the harm that was done. They were often presented by 2 industry and government as incidents, as disconnected 3 phenomena only to be used in the vacuum of whatever 4 particular thing that happened.
5 And what this study and analysis did, 6 because a lot of people started comparing, and as I 7 said asking questions, they noticed there was an 8 observed pattern that was communicated up, that says, 9 you know, a lot of these things are occurring in low 10 income, poor and heavily minority areas.
11 An analysis was done, and the statistical 12 results actually found that that indeed was the case, 13 that if you're low income, predominantly minority, it 14 was more than likely that your community was a 15 sacrifice zone when it came to planning or, as they 16 say, siting negative amenities.
17 We want to say that positive amenities 18 could be things like golf courses, nature preserves, 19 things that can actually even augment the value of 20 your home. Negative amenities, such as sewage 21 treatment plants, burn plants, nuclear power plants, 22 can actually depress value, and actually, as I say, 23 increase burdens above and beyond just the siting of 24 that particular facility, but actually bear, as they 25 say, particular harm to the residents Neal R. Gross & Co., Inc.
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Page 2819 1 disproportionately.
2 So what they did was an analysis that 3 looked at these permitting issues and siting all 4 around the country, controlling for race, income, 5 class, socioeconomic status.
6 What they found that the overriding thing, 7 the heavy burden was borne by principally poor, 8 disempowered people. By disempowered you look at 9 voting registration, how their voting turnout, 10 etcetera, so you can see what their connections with 11 regards to political influence and access, as I say, 12 that has input and influence on the decision-making.
13 So by disempowered, it's just not only 14 because of money, but also political 15 disenfranchisement, etcetera. They found that this 16 was a very, very significant driver in the siting of 17 facilities.
18 Then when you control for race, all things 19 being equal, they found that then even if you're rich, 20 middle class or poor minority, you would still fare 21 even worse than even poor whites, when the chips were 22 down. So there was even less than equal amongst the 23 equals.
24 But overall, the term "environmental 25 justice" includes not just race; it has unfortunately, Neal R. Gross & Co., Inc.
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Page 2820 1 because of lobbying efforts and the pushback from 2 industry, and again, when you're starting to define 3 these definitions and terms, everybody comes to the 4 plate. That's one of the things that President 5 Clinton did before issuing the Executive Order, just 6 trying to bring everybody together.
7 But at the same token, at the Point where 8 you're defining rules and procedures, what are the 9 best tools and mechanisms, they got away from some of 10 the principle drivers of environmental injustice, 11 which is the regulatory framework that decides where 12 things go, to now just reducing it to sort of like 13 affirmative action.
14 What environmental justice, it is not 15 environmental affirmative action. It is a gross 16 mistake to rely exclusively upon race as a determinant 17 or driver of an environmental justice. It's not about 18 poor black people; it can be middle class black 19 people. It can be affluent black people.
20 But also it can be for white people. Some 21 of the biggest environmental justice cases that I had 22 work on are rural Appalachian West Virginia, with 23 regards to mountaintop removal. I submit to you they 24 are dirt poor, struggling, and it's because of 25 economic hardship and necessity that they're locked Neal R. Gross & Co., Inc.
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Page 2821 1 into a particular geographical area, and they are 2 white, and they are also an environmental justice 3 community.
4 In fact, I helped organize the Sierra Club 5 Environmental Justice Programs, and by the way I'm on 6 the national board of directors for the Sierra Club.
7 I'm one of the 15 members of the National Sierra Club 8 that actually are the legal body that is the Sierra 9 Club. I mean we naturally are a million member 10 organization, but as one of the 15, set the policies 11 so that making sure the outreach to poor, even poor 12 white areas, are also included.
13 So it is not just race, and I say that to 14 say this, is that you have to -- if you can look at 15 that map, it's very telling. I mean you can see 16 clearly the dark shade is, I guess I'm assuming it's 17 shaded by race, or as they define, if you define the 18 EJ area narrowly, and if you throw in an income 19 dimension, that still doesn't tell the story.
20 You have to understand the story of 21 Peekskill and Haverstraw. These were the, as I said, 22 the safe places where poor low income folks could 23 settle throughout the history of Westchester County.
24 Westchester County is perhaps one of the wealthiest 25 counties in the country, and yet you have these Neal R. Gross & Co., Inc.
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Page 2822 1 interesting little pockets, and these patterns 2 actually.
3 As I say, it certainly goes back to some 4 of the early brick manufacturing, early iron 5 manufacturing and the like. In the past, General 6 Motors, the Ford plant in Rahway. But Peekskill is 7 pretty much a very blue collar town, and because it's 8 blue collar, it did not have the weight and influence.
9 So as a consequence, it became what I call 10 an environmental sacrifice zone. By that, you have 11 the concentration of the county's incinerator, waste 12 dumping, ash pits. The battle that we had to fight 13 and I helped organize the community's environmental 14 justice group called Citizens for Equal Environmental 15 Protection, where they were going to expand a sewer 16 trunk line through the city's unfiltered watershed.
17 In fact, they have actually high quality 18 water, but because another town that's very affluent, 19 Yorktown, wanted to build more ratables, which is real 20 estate, high value, high end, they had no way or where 21 to dump the sewage. So they could have either spent 22 more money and incurred the tax increase to expand 23 their sewage treatment plant in that town, or they 24 could dump it in the Hudson River.
25 The only pathway to do that, and if you --
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Page 2823 1 what's missing from this speech here, which is another 2 dimension, is topography. You would notice that the 3 Annsville Valley in that area is where the hollow, the 4 Peekskill Hollow, is where the main water course and 5 also the potable water supply for the town flows.
6 So that was also the path of least 7 resistance by which that wealthy town could take its 8 sewage and dump it into the Hudson. So then Peekskill 9 would have to then become a regional sewage dumping 10 facility. So it is because the community was 11 powerless that when they decided at the county level 12 to have a regional sewage entity, to set up and make 13 this plant a foregone conclusion, the residents of 14 Peekskill were not really brought in at the table.
15 We had to go in and organize the 16 community, and as a true environmental justice 17 community, it was not -- just not black, white, 18 Hispanic, a range of groups, and they were scrambling, 19 saying you know, we don't even understand the 20 regulatory routine and process by which we can get 21 onto the on ramp and have a say.
22 Is it our politicians? Is it our mayor?
23 They had to really be educated, and this is what 24 environmental justice does. Environmental justice, 25 you have to understand what the injustice is. It Neal R. Gross & Co., Inc.
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Page 2824 1 begins one bad zoning decision or siting decision at 2 a time.
3 And those communities that do not have the 4 means, income and resources to fight these zoning 5 decisions, usually become the sinkholes or the 6 sacrifice zones by which these decisions end up being 7 sited.
8 So one of the things I had to do is 9 education them in the government planning process, the 10 zoning process, and actually teach them to become 11 their own EPA, teach them to get hospital and other 12 experts, to get nurses and other experts, but more 13 importantly identify their community.
14 So poverty, class and socioeconomic 15 status, as I say, culture, custom and heritage, a lot 16 of these things go into the dynamic of making an 17 environmental justice community. So when one only 18 narrows it by saying "black and poor," you truly, as 19 they say, miss the phenomenon.
20 In fact, I go back, I think it's -- is it 21 Clearwater 51, in which they had the NRC's report?
22 One of the things that they said in doing analysis, 23 you know, the failure to account for environmental 24 justice is with the lifting of the rock, and looking 25 under the rock.
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Page 2825 1 I'd go even further, even defining what 2 the rock is. I mean if you don't even know what the 3 rock is, its shape, nature and dimensions, let alone 4 to even lift up and begin to do more empirical 5 research and analysis, you're totally going to miss 6 the picture.
7 That is the case in this instant. Here, 8 they said that it's been assumed that the 40 years of 9 current operations is okay in the norm. But it 10 doesn't take into account the culture, custom and 11 heritage of that poor community, and its orientation, 12 its land use, its living and travel patterns.
13 So that Peekskill as a town, as a city, is 14 an environmental justice community, because it is 15 historically blue collar, low income, disconnected, 16 disarticulated from the rest of the county. Then one 17 needs to look at the totality of that community, and 18 then actually start to substratify by special needs 19 populations, institutionalized populations, whether 20 it's imprisoned, nursing homes, schools and housing 21 authorities.
22 I list those things particularly, because 23 those are places in which the people who are within 24 them have limited control over their ability to move 25 and move around. Schools, kids just cannot run and Neal R. Gross & Co., Inc.
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Page 2826 1 run away from the school. They have to form up and do 2 whatever. They have to rely upon their teachers, 3 hopefully to get them to safety.
4 Same thing with hospitals and 5 institutionalized residents, senior citizens' housing, 6 and also, as I say, housing authority housing. Some 7 of these special needs housing are in parts of the 8 city because of zoning, because they don't want to put 9 them in other parts.
10 So that within the city of the geography 11 for their access to roads and transportation, is even 12 further impaired. So when one only considers the 13 census variable for race, you totally miss, I would 14 say, 99 percent of the issue. Environmental justice, 15 as an expert on environmental justice, as one of those 16 who shaped the terms and definitions of environmental 17 justice, you miss a huge picture.
18 JUDGE McDADE: Okay. You're familiar with 19 the Town of Peekskill?
20 MR. MAIR: Yes.
21 JUDGE McDADE: You grew up there?
22 MR. MAIR: Yes.
23 JUDGE McDADE: Okay. Are there certain 24 characteristics of the Town of Peekskill that you 25 would like to emphasize for us, that are not Neal R. Gross & Co., Inc.
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Page 2827 1 considered in an environmental impact statement, not 2 considered in an environmental justice review, that 3 you think are particularly relevant in the context of 4 the licensing or relicensing of the Indian Point 5 facility?
6 First of all, just put on the record, how 7 far away from Indian Point is Peekskill?
8 MR. MAIR: I would say, if you're dealing 9 with South Peekskill, you're probably about a mile and 10 a half, you know. If you're going lower Washington 11 Street, that lower South Street area, a mile and a 12 half, two miles. So that's a reasonable distance, 13 that little are going down to Indian Point. So you've 14 got Charles Point and Indian Point, yes.
15 JUDGE McDADE: So depending on your 16 perspective, either Peekskill is in Indian Point's 17 backyard or Indian Point is in Peekskill's backyard?
18 MR. MAIR: Well, it's actually not 19 backyard, because Peekskill is a city on the Hudson.
20 It's in its front yard. It is, think of it as the 21 front yard, the lawn. It's that big tree on your 22 front lawn.
23 So we can be that specific, because it's 24 a noticeable landmark. If you grew up in Peekskill, 25 you know, you can see the tower, depending upon where Neal R. Gross & Co., Inc.
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Page 2828 1 you lived in the City of Peekskill or the domes.
2 So it is the tree in your front lawn. So 3 it's more than just the backyard. It's your front 4 yard. It's what people see when they come into the 5 community. So let's talk about routes and 6 transportation, and again, we'll just be simple here 7 for conversation's sake, using 100 percent north, 8 south, east and west, say giving all the weight of 25 9 percent.
10 Obviously, if there's an incident, and if 11 the prevailing radius, say, is within 10 to 50 miles, 12 the southern route is really not an option, because 13 then you're heading towards New York City, and you're 14 also driving through and heading through other 15 populations that also face the same problem as 16 Peekskill.
17 A lot of poor people say if you get to the 18 Bronx, that maybe themselves are trying to get out.
19 But you're heading into denser traffic, and you would 20 basically run into gridlock. So that area is pretty 21 much forestalled, not to mention it's one of the 22 better routes to get out of the city, Route 9 heading 23 south, but it's also the route that heads in.
24 If there's a route going south, it's 25 basically heading into, you know, going south and Neal R. Gross & Co., Inc.
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Page 2829 1 you're only able to get as far as Manhattan, and you 2 then have to go either toward Long Island, or try to 3 still cross George Washington Bridge to get to New 4 Jersey. So you're wiped out with regards to options 5 here.
6 Let's look at trying to head west. If you 7 look at that map, again of the Clearwater exhibit of 8 Peekskill, the radius map please. If you head due 9 west, there's water. So the western direction is no 10 option. If you want to head north, if that was a 11 topographical relief mountain, you would see Route 9, 12 as it twists around, as you see Camp Smith, Anthony's 13 Nose.
14 It basically becomes what I call almost a 15 cow path. So it's a two-lane road, and it's -- when 16 I say "two lanes," I would honestly suggest that this 17 group of tables right here, from the edge of this 18 table here, just about to the middle of that water 19 cooler there, is you know, your north and south.
20 JUDGE McDADE: I'm sorry, sir. From the 21 table --
22 MR. MAIR: From this table right here.
23 This table right here. Could you raise your hand sir, 24 and lady, could you raise your hand over there please?
25 Could you both raise your hands please? That's the Neal R. Gross & Co., Inc.
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Page 2830 1 width of the path, the Route 9 that's two lanes, and 2 it twists around Anthony's Nose, getting to Bear 3 Mountain Bridge.
4 JUDGE McDADE: And if you can, just so 5 we're going to have it clear for the record, you're 6 talking about the table where the NRC staff is 7 sitting, to the table where the State of New York is 8 sitting?
9 MR. MAIR: Yes.
10 JUDGE McDADE: That we will take judicial 11 notice, that since we arranged for, but those tables 12 are eight feet long. So we are talking a distance of 13 approximately 10, 20 feet?
14 MR. MAIR: Roughly 20 to 21 feet, you 15 know, of basically heading your north-south, and it's 16 21 feet almost on switchback and hairpin turns. So 17 can you imagine an evacuation, you know, of a town 18 heading on that type of route. That would be --
19 JUDGE WARDWELL: Excuse me, if I might 20 interrupt. Just quickly for clarification, are you 21 referring to Route 9 or Route 2026?
22 MR. MAIR: Route 9. Basically, 2026. I'm 23 sorry.
24 JUDGE WARDWELL: Okay.
25 MR. MAIR: Route 2026.
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Page 2831 1 JUDGE WARDWELL: Thank you.
2 MR. MAIR: And that goes around to -- and 3 that's your main route going to Bear Mountain Bridge, 4 again trying to get to go west, and that is, as they 5 say, a very common traveled route. I can tell you, 6 with a lot of the traffic from that area, it would be 7 almost a parking lot should there be an emergency 8 incident.
9 It's sort of like Katrina, where people, 10 if there's a threat, if there's a warning, because 11 usually something happens and warnings or notices go 12 out or people hear something or they pick up on the 13 news. As people would pull out, that would become a 14 parking lot in seconds.
15 The other viable route out is Route 202 16 heading -- 2026, which heads towards Mohegan Lake, and 17 that's heading east to Yorktown, and that's -- those 18 routes are four lanes. They're probably a lot wider 19 than the northern route of Peekskill, and you know, 20 again, you're heading through huge suburban tracts and 21 huge suburban areas. If you had the population, the 22 census population, you could see quickly how those 23 areas would fill up with traffic.
24 In fact, one of the reasons why they just 25 recently widened the Taconic Parkway, that area, so I Neal R. Gross & Co., Inc.
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Page 2832 1 believe now it's almost eight lanes, was because of 2 heavy traffic congestion. That's what the suburban 3 commute right there. So can you imagine an emergency 4 situation, where you're trying to evacuate a 5 significant portion of the population of the city?
6 That's assuming, you know, the folks that 7 had the means to quickly disperse, say just like in 8 the case of Hurricane Katrina, those who had the means 9 of getting out right away.
10 JUDGE McDADE: Is there anything about the 11 patterns of automobile ownership or public 12 transportation in Peekskill that would affect the 13 environmental justice population?
14 MR. MAIR: Being a predominantly working 15 class community, it is heavily public transportation-16 dependent. Unfortunately, most of the public 17 transportation infrastructure is designed to go from 18 Peekskill south, because a lot of people on average 19 commute to White Plains or New York City.
20 So the best public transportation and the 21 main highway, which is basically taking the labor of 22 Peekskill, which historically was where the labor 23 population was, south to work. So you would basically 24 that the public transportation, as it is designed, it 25 is designed to actually take them into harm's way, Neal R. Gross & Co., Inc.
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Page 2833 1 rather than away from harm's way.
2 So they're very public transportation 3 dependent, number one. Number two, of those working 4 class folks that usually have a car, it's about maybe, 5 you know, one car, and usually the condition of that 6 car is often in question. I mean these are folks who, 7 in these tough times with expensive gas, they try to 8 make it stretch out as long as possible.
9 So you're assuming that in most of their 10 cars are commuting, I would say, no more than an hour 11 to and from a job, because of the limited viability of 12 that vehicle. So if you imagine those who even have 13 a car, but the car is of inferior quality, the 14 probability of that thing traveling a distance and 15 then breaking down on the road would only present a 16 hazard to people who are trying to get out, but also 17 the family, because again that vehicle is pushed 18 beyond its limits.
19 So of those work vehicles, they're not, 20 you know, current model vehicles. Many of them are 21 vehicles of necessity, and I would often submit in 22 many cases, I was in a household of nine.
23 We had one car. You could not get all of 24 us in one car, and so if you look at today's late 25 model cars, you know, at best if you do the college Neal R. Gross & Co., Inc.
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Page 2834 1 kid in the telephone booth, you'd probably get five or 2 six people into a car. But what happens if the 3 family's larger than five or six?
4 JUDGE McDADE: Having focused on the 5 impact, are there any potential mitigating actions 6 that you would what to focus us on?
7 MR. MAIR: Absolutely. I think that, you 8 know, one of the realistic and the realities, and I 9 guess when we're talking about public transportation, 10 you know, one of the important mitigations, again if 11 they were lifting up the rock, that they could 12 proactively do. I think one of the most significant 13 things they could do is invest in, as they say, a 14 supply of public transport and emergency transport 15 that should be available, you know, for this city 16 population.
17 First and foremost, the city's bearing the 18 burden of possibly having this plant continue on. So 19 one amenity that this entity could contribute is 20 looking at the size of the school populations, the 21 size of its institutionalized population, the public 22 housing authorities, and they should either have ready 23 or for drill purposes, you know, what does it take to 24 get ten buses to the various locations, you know, to 25 move large segments of the population, and more Neal R. Gross & Co., Inc.
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Page 2835 1 importantly having not only pickup points, but an 2 actual clear route that the community is notified 3 about.
4 When we talk about shelter in place, when 5 I was a kid at Uriah Hill and Drum Hill in the City of 6 Peekskill, when we had the drills, because Indian 7 Point was a fact of our lives, you know, granted, we 8 did the duck and cover and you were in the hallway.
9 That's assuming a nuclear device and the building 10 collapsing.
11 In this case, it would be an invisible 12 threat. But one of the things that each building at 13 that time, before a lot of the urban renewal and then 14 the current new building frenzy, Peekskill went 15 through huge destruction and demolition of what I call 16 old civilian defense infrastructure.
17 So even if they did nothing, and if you 18 had the old civilian defense infrastructure, that 19 could have been recycled or improved shelter in place.
20 And what about civilian defense, many of you may be 21 aware of, what do you need? I think the question was 22 asked about the prisons, you know.
23 The issue is having places that have large 24 areas that have proper ventilation and treatment, 25 that's designed in case of a nuclear disaster event.
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Page 2836 1 This is nothing new and unheard-of. We actually did 2 this. We actually prepared at one time for a nuclear 3 disaster, and this is basically dusting off books and 4 things that we know.
5 So we need to have these civilian type of 6 defense infrastructure distributed through the city.
7 So this way, if people are poor and they're going to 8 be sheltered in place, then reasonable accommodations 9 should be made, and reasonable built-in infrastructure 10 should be made, to basically make that happen and 11 viable, and stockpile, like they had did with civilian 12 defense, meaning that they water, emergency supplies, 13 flashlights, all those things in the case of a 14 disaster.
15 So that if people cannot get out, they 16 don't have to worry about the air circulation and all 17 the other things, that you could actually minimize the 18 hazards from getting in. So it's kind of far-fetched 19 to say that well, things are, you know, nothing's 20 disastrous did happen.
21 We can debate that, but at the end of the 22 day, if we're looking forward, and if we're looking 23 forward with the 20-20 hindsight of Fukushima and 24 Hurricane Katrina, and realize that crises do happen, 25 things can fail, the best laid plans of mice and men Neal R. Gross & Co., Inc.
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Page 2837 1 and experts can break down, the question at the end of 2 the day, the poor are the ones that are left behind.
3 Do we have the adequate capacity and 4 infrastructure in place to at least protect human 5 health? One of the greatest oversights, again not 6 lifting up the rock, is even looking at say look, we 7 have to shelter in place, okay, then do we have the 8 capacity for 20,000 people to be sheltered in place 9 within this city?
10 And I would say that there perhaps are a 11 couple of buildings still standing that have old CD 12 infrastructure, that's civil defense infrastructure, 13 but all the new construction doesn't. The answer is 14 is that, you know, this is more than just a checkbox 15 on a sheet of paper, and a statement, and putting up 16 a sign, a metal sign saying "stand here."
17 This is taking aggressive, affirmative 18 action of making sure these things are in place. It 19 think that if you're going to consider the extension 20 which is going forward, at least at a minimum minimize 21 the harm. The most civil thing to do, the most humane 22 thing to do, is that if you're asking people to 23 survive in the event of a nuclear disaster, one should 24 make sure that that civil defense type of, as a 25 shelter in place, is fit for human habitation, and has Neal R. Gross & Co., Inc.
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Page 2838 1 the resources and stockpiles should there be a crisis 2 that requires those facilities to be used.
3 So saying it and having a checkbox means 4 absolutely nothing, and that is the core of 5 environmental injustice, because the bare minimum 6 thought goes into really what happens to these 7 populations. Those who will have the means and the 8 ability to survive, will do so. Those who are poor, 9 black, white, blue collar, with limited means and 10 access, will be stuck.
11 This community was built in the 12 Depression. It's geologically and geographically 13 situated so that it is in the worse place, and because 14 it is a sacrifice zone, we're asking it to bear an 15 additional burden, on top of being the center for 16 waste, sewage for the entire county to, as they say, 17 to carry on this additional burden.
18 So if we're going to do it, there are 19 things that you can proactively do. They're not the 20 best solutions, but they are things that are humane 21 and the right thing and just thing to do.
22 JUDGE McDADE: Ms. Guardado, you are also 23 a resident of Peekskill; correct?
24 [TRANSLATING QUESTION AND ANSWER.]
25 MS. GUARDADO: Correct.
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Page 2839 1 JUDGE McDADE: How long have you resided 2 there?
3 [TRANSLATING QUESTION AND ANSWER.]
4 MS. GUARDADO: It's going to be five 5 years. It's been four years and ten months.
6 JUDGE McDADE: Okay. English is not your 7 first language, is it?
8 [TRANSLATING QUESTION AND ANSWER.]
9 MS. GUARDADO: Correct, it's not.
10 JUDGE McDADE: What is your first 11 language?
12 [TRANSLATING QUESTION AND ANSWER.]
13 MS. GUARDADO: It's Spanish.
14 JUDGE McDADE: And you came to the United 15 States from El Salvador?
16 MS. GUARDADO: Yes, correct.
17 JUDGE McDADE: And you came here as an 18 adult?
19 [TRANSLATING QUESTION AND ANSWER.]
20 MS. GUARDADO: Yes.
21 JUDGE McDADE: Okay. Since you've been 22 living in Peekskill, you've been involved with the 23 Hispanic community in Peekskill?
24 [TRANSLATING QUESTION AND ANSWER.]
25 MS. GUARDADO: Correct.
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Page 2840 1 JUDGE McDADE: Are you in a position to 2 explain to us the general level of English fluency of 3 that community?
4 [TRANSLATING QUESTION AND ANSWER.]
5 MS. GUARDADO: Yes, it is Spanish.
6 (Laughter.)
7 JUDGE McDADE: Would you please do so?
8 First of all, let me ask, you're testifying here 9 through an interpreter today; correct?
10 [TRANSLATING QUESTION AND ANSWER.]
11 MS. GUARDADO: Yes.
12 JUDGE McDADE: And you requested an 13 interpreter because you have reservations about your 14 fluency in English?
15 [TRANSLATING QUESTION AND ANSWER.]
16 MS. GUARDADO: That's correct.
17 JUDGE McDADE: And you wanted to make sure 18 that what you were saying is what -- and what we hear 19 is what you are thinking and what you believe?
20 [TRANSLATING QUESTION AND ANSWER.]
21 MS. GUARDADO: Yes, correct.
22 JUDGE McDADE: Is your level of fluency 23 average within the Hispanic community of Peekskill, 24 above average or below average?
25 [TRANSLATING QUESTION AND ANSWER.]
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Page 2841 1 MS. GUARDADO: I didn't understand the 2 question.
3 JUDGE McDADE: Is your level of fluency 4 typical within the Hispanic community of Peekskill?
5 [TRANSLATING QUESTION AND ANSWER.]
6 MS. GUARDADO: Average. I'm going to 7 explain a bit. Since I came from my country El 8 Salvador approximately five years ago, I have not 9 stopped to learn English, because I believe it is a 10 big necessity in this country.
11 During that whole time, I have found that 12 within the community where I live in Peekskill, there 13 is a great Hispanic population in this community.
14 JUDGE McDADE: What percentage of 15 Peekskill would you say is Hispanic?
16 [TRANSLATING QUESTION AND ANSWER.]
17 MS. GUARDADO: I don't have an exact 18 number, only what I observe. When people come to the 19 center to consult, I realize that there are many more 20 people that are Spanish, Hispanic.
21 When I go to the meetings with my 22 daughter, of my daughter in school, I notice that 23 there are -- there's a lack of people that are 24 Spanish-speaking, because they do not understand the 25 English. Those are some of the reasons.
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Page 2842 1 JUDGE McDADE: Okay, and one of the 2 things, we have the translator here. You can't run on 3 too long before you take a breath.
4 [TRANSLATING QUESTION.]
5 JUDGE McDADE: Because we need to allow 6 the translator to catch up with you.
7 [TRANSLATING QUESTION AND ANSWER.]
8 MS. GUARDADO: Okay, that's correct.
9 JUDGE McDADE: Is fluency in English an 10 issue for a significant portion of the Hispanic 11 population of Peekskill?
12 [TRANSLATING QUESTION AND ANSWER.]
13 MS. GUARDADO: Can you repeat that?
14 JUDGE McDADE: Is a lack of fluency in 15 English a problem for a significant portion of the 16 Hispanic population of Peekskill?
17 [TRANSLATING QUESTION AND ANSWER.]
18 MS. GUARDADO: As far as I'm concerned, 19 there's a big impact, in that the people do not 20 understand English the way that I do.
21 JUDGE McDADE: Okay, and can you describe 22 the difficulties that that lack of English fluency 23 would have in the event of an accident at Indian 24 Point?
25 [TRANSLATING QUESTION AND ANSWER.]
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Page 2843 1 MS. GUARDADO: Yes. First, I believe that 2 if there were an impact like that, like the radiation, 3 nuclear radiation, I am thinking and seeing that it 4 would be very difficult, because at this moment, at 5 this moment they would be giving the whole orientation 6 in the native language, which is English.
7 And the people, even though we know a 8 little bit of English, at that moment, because of our 9 English, we don't get that entire attention and we 10 become out of control. I believe that the officials 11 that would be there at that time giving all the 12 instructions, they are giving them in the language, in 13 English.
14 Most of the Hispanic population, who are 15 a very big population, in the area of Peekskill, 16 that's what I'm talking about because that's where I 17 live, it would be a great impact. I put myself in my 18 place, as a mother, first of all. I go crazy thinking 19 that something like this can happen.
20 Now my daughter at that moment would be 21 perhaps in school. Myself, as a person that's working 22 as well, with elderly people, people that are 23 disabled, with a level of disability, that they can't 24 move freely. To me, I would feel bad. In reality, I 25 don't even know how to describe that Point.
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Page 2844 1 I've been working and I've been very 2 involved with the Latin Committee. Based on that 3 experience that I have had, since I came to this 4 country, I am giving now my testimony, because I 5 always like to be involved in the services of the 6 community, and mainly because I've been working in the 7 area of health.
8 My concern is also what can happen to us, 9 the people, and I think a lot about the people of high 10 risk, that are the elderly and the children.
11 JUDGE McDADE: Okay. Since you've been in 12 Peekskill, you've been very involved with the Hispanic 13 community and community organizations, have you not?
14 [TRANSLATING QUESTION AND ANSWER.]
15 MS. GUARDADO: Yes, that's correct.
16 JUDGE McDADE: That in the event more than 17 five percent of the population speaks a language other 18 than English, it is necessary that emergency plans be 19 published in that language?
20 [TRANSLATING QUESTION AND ANSWER.]
21 MS. GUARDADO: Yes.
22 JUDGE McDADE: And Westchester County has 23 on its website in Spanish information about its 24 emergency plans.
25 [TRANSLATING QUESTION AND ANSWER.]
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Page 2845 1 MS. GUARDADO: Yes.
2 JUDGE McDADE: Okay. Even though you have 3 been very active in the Hispanic community and 4 community organizations in Peekskill, prior to your 5 involvement with this proceeding, were you aware that 6 there were Spanish language sources of information 7 with regard to emergency planning?
8 [TRANSLATING QUESTION AND ANSWER.]
9 MS. GUARDADO: I want to explain 10 something. Yes, I've been very involved in the 11 community since the beginning. I have worked with the 12 Latin community of Peekskill, my intention has been 13 after knowing. When I took my daughter initially to 14 school, I got a notification saying that I should sign 15 a paper so she could get -- so they could give her 16 doses of potassium iodide.
17 So then I started to feel uneasy, and I 18 wanted to find out more about the nuclear plant. I 19 started to look and to read that sheet, and I started 20 to investigate and I became uneasy, that at any moment 21 a situation like this could occur. So the document, 22 I didn't recognize any of the documents. I did not 23 find the documents in Spanish.
24 Up until now that were doing this process, 25 I realized that there isn't such a document. But in Neal R. Gross & Co., Inc.
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Page 2846 1 my experience with the people that I have worked with 2 in the community, no one has told me that there is a 3 document written in Spanish.
4 That is the worry for us, because we did 5 not know that an emergency plan existed, in order to 6 evacuate our Hispanic community in Peekskill.
7 JUDGE McDADE: Okay. Is there anything 8 else that you would like to draw our attention to, 9 that you feel demonstrates that the Hispanic community 10 would be disproportionately impacted by a release of 11 radionuclides from Indian Point?
12 [TRANSLATING QUESTION AND ANSWER.]
13 MS. GUARDADO: I don't have the sample.
14 I don't have. I don't have a sample.
15 JUDGE McDADE: Okay, thank you. It's now 16 just about 5:00 p.m. I would suggest we take a five 17 minute recess, well, a ten minute recess, and we come 18 back then at 5:10. We are in recess. Thank you.
19 (Whereupon, a short recess was taken.)
20 JUDGE McDADE: Okay. I think we have a 21 critical mass and we're past the time of the recess.
22 The hearing will come to order.
23 Mr. Simms, where do you reside?
24 MR. WEBSTER: Judge, if you could raise 25 your voice for Mr. Simms. He is not -- he hears very Neal R. Gross & Co., Inc.
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Page 2847 1 well but he does require a slightly high volume.
2 JUDGE McDADE: Okay. Where do you reside, 3 Mr. Simms?
4 MR. SIMMS: I reside in Cortlandt, in the 5 Town of Cortlandt.
6 JUDGE McDADE: Okay. And you are currently 7 a resident at a nursing home?
8 MR. SIMMS: No, it's an assisted living 9 residence.
10 JUDGE McDADE: Okay. And how long have you 11 been a resident there?
12 MR. SIMMS: I've been there for three 13 years.
14 JUDGE McDADE: Okay. And in your direct 15 testimony you talked about some of the circumstances 16 that would be applicable to people in assisted living 17 and in nursing homes in the event of a disaster in the 18 area. Correct?
19 MR. SIMMS: Yes, sir.
20 JUDGE McDADE: Okay. Can you -- and also 21 that although not in the facility where you reside but 22 in many similar facilities the population are Medicaid 23 or low-income, but the difficulties would be spread 24 across whether or not it was a group of affluent or a 25 group of non-affluent people.
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Page 2848 1 MR. SIMMS: Well, I couldn't respond in 2 that sense because where I am we're not to have that 3 particular problem. Okay? Reliant on Medicaid. On the 4 other hand, we have problems unique to the elderly.
5 JUDGE McDADE: And could you highlight some 6 of those for us?
7 MR. SIMMS: Yes, sir. As a matter of being 8 when I say elderly, there are a number of degrees in 9 which we find ourselves failing. Now, I live with 10 approximately 90 other people and some of them have 11 difficulty seeing more so than myself, some have 12 difficulty hearing, and some have difficulty 13 comprehending anything. Now, this is an assisted 14 living home and we have aides employed by the home, 15 and we also have private aides brought in by the 16 families of the residents.
17 Unfortunately, this is not going to be of 18 much help to us in the event of an evacuation because 19 to my mind, or to my knowledge I know of no way that 20 they could evacuate us. We have people let's say who 21 are considered ambulatory, but then you have to 22 include everybody who requires a walker. Now, for 23 those of us who don't use walkers we comprise maybe 10 24 percent of the population. The rest are confined to 25 walkers and wheelchairs. What that means, of course, Neal R. Gross & Co., Inc.
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Page 2849 1 is that there's no way to simply pull up a bus, or 2 two, or three and say load up because you can't load 3 up wheelchairs, and people are confined to them.
4 The other thing that's even more important 5 is that a number, in fact I would say on the order of 6 40 to 50 percent of the residents require medication.
7 With medication, it's distributed by the aides and by 8 the nursing staff. Some of us are self-medicated, but 9 some of us can't be self-medicated because sometimes 10 the medication involves narcotics and other controlled 11 substances so, therefore, it is kept under lock and 12 key and distributed only when needed. But we have 13 lines when -- every day certain residents have to line 14 up to get their medication. If we evacuate there's no 15 way for them to get their medication. Now, I can take 16 mine. I'm self-medicated. I can grab my pills, throw 17 them in a bag and say let's go, but I'm one of the few 18 who can do that.
19 Unfortunately, my building is 20 representative of a much larger area. The name of the 21 building I'm in is Springvale Inn, and Springvale also 22 encompasses a larger area where there are a number of 23 apartments that are restricted. Well, I shouldn't say 24 restricted because I don't run the place, but there's 25 a big sign out front indicating that they have Neal R. Gross & Co., Inc.
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Page 2850 1 vacancies and the age is 55 and up. Now, this is 2 really a senior citizens area. And you can go at least 3 a mile and a half down the road with buildings and 4 apartments on each side that are housing people 55 and 5 up.
6 All of us to a certain extent are limited 7 completely by the topography of the area. There's only 8 one road in and one road out really, so should 9 something happen, I don't know how transportation 10 could get to the people down at the bottom of the 11 hill. I'm at the top of the hill, so I can walk out 12 and be on Route 9. And, hopefully, somebody would pick 13 me up. But I can walk a limited distance, but there's 14 too many people where I am who can't. As I say, what's 15 more they can't take their medication with them.
16 Now, medication is applied all day long, 17 and for that matter there are certain of the residents 18 who have medication all night long. In a sense you 19 might say they should be a nursing home rather than an 20 assisted living facility. That may be, but this is 21 where we are.
22 JUDGE McDADE: Mr. Simms, we heard earlier 23 about certain issues for medical care, medical 24 treatment during the course of an emergency where 25 perhaps the staff who would ordinarily provide medical Neal R. Gross & Co., Inc.
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Page 2851 1 care would not be available because they would have 2 exited the area. In the facilities that you described 3 would they be able to function as a shelter in place 4 without impacting the well being of the residents 5 without the presence of at least the vast majority of 6 the staff?
7 MR. SIMMS: I fail to see how primarily 8 because even the staff that's there is limited with 9 respect to distributing medications. For example, we 10 have nurses, practical nurses, nurses aides, and 11 they're the ones who distribute the medications. Now, 12 the other staff comprises the kitchen, comprises 13 housekeeping, maintenance. And the point is I'm not 14 sure how many of any of the staff would be available 15 in the event of an emergency since the staff also has 16 their own families and they don't live there. They 17 come in in the morning and they leave in the evening, 18 and we have a night staff, and they come in when their 19 hours2.199074e-4 days <br />0.00528 hours <br />3.141534e-5 weeks <br />7.2295e-6 months <br /> start. It's not the case of where the staff is 20 on the premises forever.
21 JUDGE McDADE: Okay. Mr. Simms, is there 22 anything else about the specific impact that the 23 elderly would encounter that the rest of the 24 population would not in the event of an event at 25 Indian Point that you would like to bring to our Neal R. Gross & Co., Inc.
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Page 2852 1 attention?
2 MR. SIMMS: Well, it's true we're not what 3 you would call low-income. However, we have no private 4 means of transportation. A couple of us had cars when 5 we came in but these cars now seem to have been given 6 away or sold because we have not been able to really 7 use them. The people who brought them feel unsure of 8 themselves as they drive so they would rather not.
9 Now, it's true the facility provides 10 transportation for such necessities as doctor's 11 visits, et cetera, that kind of thing, so there's no 12 need that we have to have a car. Such a car we figure 13 might be useful in the event of an evacuation, but 14 that would not help with respect to the medication 15 that needs to be -- and I don't know of anyone there 16 who is not on some kind of medication.
17 JUDGE McDADE: Okay. Thank you, sir. Dr.
18 Kanter, I don't want to go over the same ground we 19 went over with Dr. Larsen but there are some things 20 that you referred us to that I'd like to discuss.
21 You talked about surge capacity. What did 22 you mean by that?
23 DR. KANTER: Yes. Excuse me, Your Honor.
24 Thank you. So, surge capacity is the amount of 25 available resources and beds within the health care Neal R. Gross & Co., Inc.
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Page 2853 1 system that is available in the time of crisis. So, 2 essentially, my concern that was raised in the report 3 was that the health care system right now, as most 4 probably are aware, is very tightly controlled, and 5 that in trying to reduce costs and increase 6 efficiencies the system is being run at near maximum 7 capacity. So, the surge capacity is essentially the 8 ability of a system that's already -- in this case 9 already running at near maximum capacity to absorb 10 additional patients or people who need to be cared 11 for.
12 JUDGE McDADE: And how would this impact 13 particularly low-income or minority people more than 14 the general population in the event of an incident at 15 Indian Point?
16 DR. KANTER: Well, what was raised earlier 17 is that these people who are in these EJ communities 18 are generally people who have higher health care 19 burdens and, therefore, are likely to be in settings 20 that require, as we just heard, a high level of care.
21 In the case of an accident where those 22 patients would have to be relocated, that they would 23 likely be very severely affected by not only the move 24 and the time that they were not being cared for, but 25 also whether the available spaces were -- or spaces Neal R. Gross & Co., Inc.
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Page 2854 1 were available for them to go to, for them to continue 2 to receive care.
3 So, the analysis that we put into the 4 testimony demonstrated was that there is just not 5 enough capacity within the current system. And, 6 therefore, those patients who are most at need, most 7 dependent upon medical care would suffer the most.
8 JUDGE McDADE: Okay. In the context of the 9 viability of shelter in place, and particularly 10 shelter in place for low-income and minority 11 individuals you discussed groundshine. How in your 12 view would that adversely affect minorities and low-13 income disproportionately to the general population?
14 DR. KANTER: The concern that I've had so 15 far listening to the testimony has been the appearance 16 that all we have to worry about is the plume going by, 17 and once the plume has gone by that everything would 18 be okay, and that all the radiation dose exposures 19 would be terminated. People could just go back to 20 doing whatever they were doing. And I think what we've 21 seen certainly from Fukushima and Chernobyl is that 22 these things do not go away and, therefore, it's not 23 just a matter of the acute exposures perhaps to 24 Iodine-131 in the plume, but that cesium and these 25 other radioisotopes get deposited in the ground, in Neal R. Gross & Co., Inc.
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Page 2855 1 the groundwater, in the food supply and, therefore, 2 you don't ultimately remove the need for evacuation.
3 So, by sheltering in place not only are you 4 potentially being exposed to these other forms of 5 contamination, but that you still have not removed the 6 need to take those people out of that contaminated 7 environment. And during that whole process, as 8 mentioned, they are likely to receive greater 9 exposure.
10 And I'd like to maybe clarify one thing 11 that the -- that was stated by I think Entergy 12 witnesses earlier about the potential clinical 13 exposure. What is the clinical danger of this 14 exposure? And I think most certainly the consensus of 15 the medical establishment is that there is no cutoff 16 under which there is no risk or danger of radiation, 17 and that there is a linear relationship of radiation 18 to health risk and health damage.
19 The 50 rem limit that was discussed might 20 be a reasonable limit for acute radiation sickness, 21 but we all know that radiation causes damage 22 potentially not just acute radiation sickness but 23 cancer, and heart disease, and many other types of 24 ailments. And that as physicians we are concerned 25 about an additional chest x-ray of 10 millirem for a Neal R. Gross & Co., Inc.
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Page 2856 1 patient particularly women and children. And, 2 therefore, there is no notion that somehow below that 3 official cutoff that there would be no danger.
4 So, what this means then is that the 5 people who are forced to shelter because of their 6 circumstances actually are putting themselves at 7 greater risk because they are getting more exposure.
8 That exposure by definition in the linear no threshold 9 model means that they are receiving a disproportionate 10 health burden.
11 JUDGE McDADE: In this context you discuss 12 facilities where people don't have personal control 13 over their environment being particularly of concern.
14 Who would be in such facilities, and why is it a 15 particular concern in this context?
16 DR. KANTER: Well, just for the reasons 17 that have been mentioned earlier by the witnesses, 18 Tony and John, that in these kinds of environments, 19 like prisons or assisted living facilities, that no 20 matter how much preparation that those people might 21 have received in terms of what they should do in case 22 of an accident like this, they are dependent upon 23 others to make those kinds of preparations or 24 prevention for them. And under many of those 25 circumstances where staff is not available, where in Neal R. Gross & Co., Inc.
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Page 2857 1 the case of the prison where the staff would be 2 preoccupied likely with other problems, that that 3 means that there is not potential for protecting or 4 securing those places against radioactive 5 contamination.
6 JUDGE McDADE: Okay. Thank you, doctor. Mr.
7 Filler, you had discussed a sort of broad range of 8 areas in your direct testimony. If you could focus 9 from that not on emergency generally but on what you 10 consider the most significant disparate impacts on the 11 environmental justice population within the radius, 12 50-mile radius of Indian Point.
13 MR. FILLER: Well, the disparate impacts I 14 looked at in my testimony related specifically to the 15 emergency plans for Westchester County, Rockland 16 County, New York State. And what I said there was 17 there was a disparate impact was implicit in the 18 sheltering in place that would exist for these special 19 populations, hospitalized populations, prison 20 populations, school populations. So, that disparate 21 impact is really written into the documents, and it's 22 part of the institutional response that would happen.
23 JUDGE McDADE: So, the nature is that those 24 populations predominantly environmental justice 25 populations would be far more likely to shelter in Neal R. Gross & Co., Inc.
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Page 2858 1 place than to exit the area, and that would increase 2 their exposure and, thus, their risk?
3 MR. FILLER: Exactly. And then in addition 4 to that there -- for example, the Westchester plan, 5 there isn't an accounting for how you would with 6 people who are sheltered in place, how they would get 7 water, how they would get food, if there would be 8 proper ventilation. In the Rockland plan there isn't 9 an accounting for how you're going to actually get the 10 people out. When you get into an evacuation there's -
11 - I think the plan calls -- you need a certain number 12 of buses, 695 buses available and you need more buses 13 to actually move the people. And then there was also 14 a requirement that the buses come back, so the plans 15 aren't really -- you know, they don't really have the 16 level of detail that you really want to see to do the 17 evacuation or the shelter in place.
18 JUDGE McDADE: Okay. Is there anything else 19 that you can point us to that would a particular 20 source of the disparate impact on minorities and low-21 income individuals?
22 MR. FILLER: In the documentation that I 23 looked at those are the main items that I found. I 24 mean, there's a whole host of disparate impacts that 25 we've been talking about earlier.
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Page 2859 1 JUDGE McDADE: Okay. Ms. Greene, is there 2 anything from your testimony, again not focusing on 3 the totality of it, but rather focusing on those 4 aspects of it that specifically relate to disparate 5 impact on minority or low-income individuals?
6 MS. GREENE: Yes, Your Honor. We've talked 7 quite a bit about the disparate impact of not having 8 your own personal transportation. And we've talked 9 about sheltering in place, but what we haven't talked 10 about adequately, I think, is -- and I would ask if we 11 could pull up Clearwater 56 for a minute, because I 12 want people to think about what it means for people 13 like Mr. Simms who is transportation-dependent and has 14 to go to a bus route. It's page 5, please. And stand 15 and wait being exposed for an unknown period of time, 16 and wait and wonder. They're not sheltering in place 17 and they are not being transported. They are waiting 18 and being exposed. I think that perhaps that's 19 something that hasn't adequately been considered in 20 the discussion so far.
21 The other issue that -- two other issues 22 that occur to me. One is, it's been alluded to but 23 it's what's called "Pre-Disaster Vulnerabilities,"
24 that is, a whole host of these things that have been 25 brought out, the medical issues like somebody who has Neal R. Gross & Co., Inc.
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Page 2860 1 diabetes, asthma, high blood pressure, people like 2 that are already at risk, and put them in a stress 3 situation and they may not have their medication, it 4 may trigger an asthma response. And, by the way, I was 5 a critical care nurse for 22 years so I'm very 6 sensitive to these issues.
7 And I would say the last issue that we 8 haven't really -- well, two others. One issue that we 9 haven't really discussed is potential synergistic or 10 cumulative effects. For example, and I think Mr. Mair 11 alluded to this. If someone lives near Charles Point 12 and they every day breathe a small amount of dioxin 13 and other emissions from the plant, and they happen to 14 also be Hispanic and part of the culture is to go and 15 eat fish out of the Hudson River, and they get a 16 little bit of PCB exposure. Both of those substances 17 lower immune system so those populations, those people 18 with that pattern can then have what I would call a 19 cumulative effect, and sometimes a synergistic effect 20 if they are also exposed to regular releases, and that 21 would occur for another 20 years if this plant is 22 relicensed, or accidental releases which are huge. So 23 that someone who didn't live and wasn't exposed to 24 those substances that are immune suppressive, and then 25 in an immune suppressdee to additionally be exposed to Neal R. Gross & Co., Inc.
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Page 2861 1 radiation either in small or large doses, to me, 2 that's a disproportionate impact.
3 JUDGE McDADE: Okay. Focusing back -- you 4 talked about pre-disaster vulnerability. What pre-5 disaster vulnerabilities would be more pronounced in 6 environmental justice populations than in the 7 population generally?
8 MS. GREENE: Well, for example, Clearwater 9 worked with various volunteers and agencies in the 10 City of Peekskill and we did a comprehensive 11 Environmental Justice Inventory for the City of 12 Peekskill. And of the things we found was that one of 13 the worst disproportionate ailments for people in 14 environmental justice communities in Peekskill is 15 asthma. So, if children with asthma are then exposed 16 to the stress -- it's really what I just said but it's 17 a very specific indication. And no one has looked at 18 the environmental profile. I mean, Clearwater did the 19 best job they could --
20 JUDGE McDADE: The children wouldn't be 21 part of an environmental justice community. We're 22 talking about minorities, we're talking about low-23 income people. Children would be across the board.
24 They could be minority, non-minority, high-income, 25 low-income. What specifically with regard to the Neal R. Gross & Co., Inc.
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Page 2862 1 environmental justice populations --
2 MR. MAIR: If I may correct --
3 JUDGE McDADE: Yes.
4 MR. MAIR: Even though children are across 5 the board, they bear again by definition of 6 environmental justice where they're sited, where 7 they're located, children of that community, you know, 8 already bear a special burden. Again, I talked about 9 the siting as you were mentioning of the incinerator 10 that's there at Charles Point, so they're already 11 bearing a disproportionate health benefit, I mean, 12 negative amenity.
13 The other issue is --
14 JUDGE McDADE: But there you're talking 15 about not children, generally. You're specifically 16 talking about children who are also members of the 17 minority community, or children of low-income 18 families.
19 MR. MAIR: Correct. But environmental 20 justice is not the narrow racial definition. It is 21 also socio economic status, and I would also submit 22 that the status of Peekskill if you were to look at it 23 economically as it relates to other municipalities, 24 its low-income status, it's relative political 25 alienation and isolation has led it to become as they Neal R. Gross & Co., Inc.
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Page 2863 1 would say a sacrifice zone. This is why a lot of the 2 county planning policy that cites things like the 3 regional incinerator, ash pit, regional sewerage dump 4 goes there. So, the entire community, irrespective of 5 income, has a negative impact, and not to mention 6 their associated personal property values.
7 I'd also submit to you that the Hispanic 8 community because of cultural custom and heritage 9 dependency upon fish. Fishing is huge, so we talk 10 about releases into the water. I assure you there has 11 not been a study of the populations dependency upon 12 the Hudson River as an alternative food source. Not 13 everybody wants Food Stamps. A lot of people want the 14 independence of fishing and living, even if that's 15 what it takes to get a protein source. So, their 16 protein source --
17 MR. BESSETTE: Paul Bessette, Your Honor.
18 We would object, because that testimony has been 19 excluded by Your Honor at the original Contention 20 Admissibility.
21 JUDGE McDADE: Let's get back to Ms.
22 Greene. Ms. Greene, you talked about the synergistic 23 effect specifically focusing on those synergistic 24 effects as they would affect environmental justice 25 populations. Can you elaborate on that?
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Page 2864 1 MS. GREENE: Well, the synergistic effect 2 as it results -- as it impacts environmental justice 3 populations that I was referring to was multiple 4 exposures in an environmental justice community that 5 were then exacerbated, for example, by a pattern of 6 eating fish from the Hudson River which is 7 contaminated in spite of health advisories, and we 8 have done an anglers survey to determine that. And 9 then in addition, so they have exposure from various 10 facilities, they have exposure from the River. And 11 these are environmental justice populations 12 predominantly that are doing this fishing.
13 There are some members that are just out 14 for recreational fishing, but there are people that 15 are eating the fish because it is either part of their 16 culture, particularly the Hispanic community, fish or 17 crabs. They are ignoring health advisories, and all of 18 this is really -- we've carefully documented.
19 MS. SUTTON: Kathryn Sutton, Your Honor. We 20 renew our objection.
21 JUDGE McDADE: Okay, the objection is 22 overruled. Please continue.
23 MS. GREENE: I'm sorry?
24 JUDGE McDADE: Please continue.
25 MS. GREENE: Okay, thank you.
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Page 2865 1 JUDGE McDADE: But I would wish you would 2 move on to -- you talked about pre-disaster 3 vulnerability and the synergistic impact. You 4 indicated that there was a third category, as well.
5 What is the third category where environmental justice 6 populations in your view would be disparately 7 impacted?
8 MS. GREENE: I think it's not -- it's a 9 third point that I would like to make, it's not a 10 category, it's an approach. It seems to me that 11 because Clearwater was very interested in 12 understanding the potential environmental justice 13 impacts, we not only did this Environmental Justice 14 Inventory, but we did a lot of research and we found 15 out that there are real methods of -- that are used, 16 for example, in New Jersey and Massachusetts, and 17 these are cited. I can give you the references if you 18 need, where these cumulative effects on environmental 19 justice populations have been evaluated. None of that 20 evaluation appeared in the Environmental Report or the 21 FEIS.
22 We also went out into the community 23 because we didn't go with a predetermination or 24 preconception of what the institutionalized 25 populations in and around Peekskill and in the 10-mile Neal R. Gross & Co., Inc.
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Page 2866 1 zone particularly. We as volunteers went out into the 2 community and interviewed people to try to determine 3 what they knew about evacuation planning and whether 4 or not the institutions such as daycare centers, and 5 nursing homes, and a whole host of other communities 6 had the information they needed to respond properly if 7 there were a release of radioactivity. And we found 8 that it was very variable. And unfortunately in many 9 cases people either didn't know about potassium 10 iodide, didn't have it on hand, were concerned about 11 administering it. They didn't -- in some cases they 12 were prepared, but in other cases they were really 13 unprepared.
14 And I think the fact that we went to the 15 trouble to look and find out facilities that house or 16 provide services to environmental justice communities, 17 how well prepared they were, is something that needs 18 to be done more formally, and in a more comprehensive 19 way. We were only able to go to a couple of dozen 20 facilities. I think that that kind of specific 21 outreach would be very valuable in helping to assure -
22 - in helping to reduce potential disproportionate 23 impacts on environmental justice communities.
24 JUDGE McDADE: Thank you, Ms. Greene. I 25 think that ends the period where the Board has any Neal R. Gross & Co., Inc.
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Page 2867 1 questions, further questions of these witnesses. As 2 been our position over the last several contentions, 3 the first question, and again with the same general 4 guidance that we don't want repetition, we don't want 5 just to go over the same thing over again just to have 6 it at the end, but rather a specific thing where the 7 testimony of a witness has been perhaps subject to 8 being misconstrued, or giving an inaccurate or 9 inappropriate impression to the Board.
10 Does Clearwater wish to interrogate any of 11 these witnesses?
12 MR. WEBSTER: JUDGE, the reality is that we 13 would be prepared to waive that if the other parties 14 were, too. So, if you could give us a chance to --
15 jUDGE McDADE: New York?
16 MR. WEBSTER: If the other parties were 17 prepared to so, too. So, if you give us a chance to 18 interrogate, to talk to the other parties perhaps we 19 can give you a definitive answer.
20 JUDGE McDADE: Well let me just ask, from 21 New York, do you desire to interrogate these 22 witnesses?
23 MR. SIPOS: No, Your Honor.
24 JUDGE McDADE: Entergy?
25 MR. TENPAS: Yes, Your Honor. We Neal R. Gross & Co., Inc.
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Page 2868 1 particularly would request the opportunity redirect 2 towards our witnesses.
3 JUDGE McDADE: How long do you anticipate 4 you would take?
5 MR. TENPAS: Fifteen minutes.
6 JUDGE McDADE: Okay, in what general area 7 do you believe their testimony might be confused?
8 MR. TENPAS: Your Honor, we believe their 9 testimony would be necessary to insure the development 10 of an adequate record as to a number of points that 11 have been raised here, and with the process by which 12 people have imagined disparate impacts to emerge.
13 JUDGE McDADE: Can you give us an idea of 14 what some of those points are?
15 MR. TENPAS: For example, the lack of 16 transportation, the idea that was expressed that the 17 plans are simply plans, they're not real, they're not 18 meaningful, they can't be expected to be successful.
19 The fact that various, for example, claims that the 20 poor lack transportation, the notion that shelter in 21 place is inherently a worse opportunity --
22 JUDGE McDADE: Well, it's not lacking 23 clarity on the part of your witnesses, but rather to 24 rebut testimony that was presented by Riverkeeper's.
25 MS. RAIMUNDI: Clearwater, Your Honor.
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Page 2869 1 JUDGE McDADE: One person at a time.
2 MR. TENPAS: I think it's both, Your Honor.
3 It's both necessary to insure the adequacy of the 4 record, and it's appropriate and necessary to avoid 5 prejudice to us in terms of the scope of inquiry the 6 Board has conducted.
7 JUDGE McDADE: Okay. Clearwater, do you 8 want to go first or last?
9 MR. WEBSTER: Last, Your Honor, if we 10 could.
11 JUDGE McDADE: Please proceed.
12 MR. TENPAS: Thank you, Your Honor.
13 MR. TURK: Your Honor, you did not inquire 14 of the Staff, and I would note that we will have 15 questions. And, in particular, because the Board has 16 inquired extensively in the area of emergency 17 preparedness, which the Commission has ruled out of 18 license renewal proceedings, in order to assure a 19 complete record I will need to conduct perhaps a half 20 an hour or more of questioning on emergency 21 preparedness issues, because the record currently is 22 imbalanced, incomplete, and unfair.
23 JUDGE McDADE: Okay. Somehow that seemed 24 inconsistent, Mr. Turk. You said that this is not 25 relevant. The Commission has ruled it out, but you Neal R. Gross & Co., Inc.
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Page 2870 1 want to take a half hour to develop a record with 2 regard to it.
3 MR. TURK: Your Honor, I would be very 4 pleased not to pursue it if I had assurance that the 5 Board will not go into emergency preparedness issues, 6 such as Letters of Agreement, the adequacy of buses, 7 evacuation time estimates, the ability to evacuate 8 institutions from within the EPZ. These are all 9 emergency preparedness issues which the Board has 10 inquired about. I assume if the Board inquired about 11 them it's because you intend to pay some attention to 12 these issues in your decision. If not, then I will not 13 ask any questions in that area.
14 JUDGE McDADE: Okay. While Clearwater and 15 Entergy are going, if you could cut down your time on 16 that. Again, and I guess maybe I made an error because 17 you brought this up several times. It had been my 18 intent at the outset of this hearing to mention that, 19 one, this is fact finding, it's not for legal 20 argument. And, also, going through what the contention 21 is about and what it is not about, and that it is not 22 a challenge to the evacuation plan, not a challenge to 23 the SAMA, but rather talking about the lack of 24 analysis presented for the disproportional increase in 25 exposure of radiation to the EJ population. So, Neal R. Gross & Co., Inc.
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Page 2871 1 apparently, I forgot to say that at 2:00 when we began 2 the proceeding. So, I understand since I forgot to say 3 that, why perhaps you could have some confusion with 4 regard to the focus of what we've been doing for the 5 last four hours. But we will start with Entergy.
6 Before we get started, one question I do 7 have. Does anybody anticipate a question of Ms.
8 Guardado? The reason I ask that is the translator 9 needs to leave.
10 MS. SUTTON: Kathryn Sutton for the 11 Applicant. No, Your Honor.
12 MR. WEBSTER: No, Your Honor.
13 JUDGE McDADE: You, Mr. Turk?
14 MR. TURK: One limited question or a short 15 series of questions, Your Honor.
16 JUDGE McDADE: For Ms. Guardado?
17 MR. TURK: Yes.
18 JUDGE McDADE: Although I said Entergy 19 would go first, Mr. Turk, you have a few minutes 20 before the translator leaves.
21 MR. TURK: Thank you. Ms. Guardado, I'm 22 sorry, I probably am pronouncing your name wrong 23 because I cannot see it. I apologize. My name is 24 Sherwin Turk. I'm a lawyer with the NRC Staff.
25 You indicated that you have not seen any Neal R. Gross & Co., Inc.
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Page 2872 1 materials in Spanish regarding evacuation planning?
2 MR. WEBSTER: Objection, Your Honor; 3 mischaracterizes the testimony.
4 JUDGE McDADE: Sustained.
5 MR. TURK: Have you seen any information 6 about evacuation planning written in Spanish?
7 MS. GUARDADO: (Through interpreter). To be 8 honest with you, I have not seen them until the time 9 that we were going through these proceedings. I 10 realize that they do exist. In reality in the 11 community where I live I have not found any material 12 that can explain to me with respect to an evacuation.
13 And I would like to have some awareness and be able to 14 work focus groups because it is for the benefit of the 15 Hispanic community.
16 MR. TURK: In other words, you don't 17 contest the fact that such information may exist; 18 however, you can not seen it until you became involved 19 in this proceeding.
20 MR. WEBSTER: That's repetitive, Your 21 Honor. Objection.
22 JUDGE McDADE: I'm going to allow it.
23 MS. GUARDADO: I haven't seen it, and 24 that's what I can say. I can't say that I've seen it 25 when I have not been able to see it.
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Page 2873 1 MR. TURK: No further questions, Your 2 Honor, of this witness.
3 JUDGE McDADE: Any objection to Ms.
4 Guardado being excused?
5 MR. SIPOS: No, Your Honor. John Sipos for 6 the State.
7 MR. WEBSTER: No, Your Honor. Richard 8 Webster for Clearwater.
9 JUDGE McDADE: Entergy?
10 MR. TENPAS: No, Your Honor, none from 11 Entergy.
12 JUDGE McDADE: Okay, Ms. Guardado, thank 13 you very much for being here.
14 MS. GUARDADO: You are very welcome.
15 JUDGE McDADE: You could either remain or 16 leave, but you are going to be losing the services of 17 your translator here in just a moment.
18 MS. GUARDADO: Thank you very much for the 19 participation.
20 JUDGE McDADE: Okay, thank you.
21 MR. WEBSTER: Judge, thank you for the 22 Board's help in organizing the translator. That was 23 very helpful.
24 JUDGE McDADE: Okay. Is Entergy ready to 25 proceed?
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Page 2874 1 MR. TENPAS: We are, Your Honor. Mr.
2 Slobodien, you've heard a number of concerns expressed 3 about the way in which response activities might be 4 inadequate. Can you describe just generally whether 5 there is any kind of planning standard or regulatory 6 requirement to which Westchester County or other 7 government entities, that they must meet in developing 8 their plans?
9 MR. SLOBODIEN: Yes, there are two levels 10 of standards. The first comes from the federal 11 government and is found in NUREG-0654, which is an 12 exhibit. And it is found in FEMA-REP-1 in the REP 13 Manual, also exhibits.
14 Then in the case of New York, there are 15 state level codes and laws that direct specific 16 requirements for emergency planning for a variety of 17 institutions, including schools, daycare centers, 18 hospitals, nursing homes and the like.
19 MR. TENPAS: You mentioned that schools, 20 and hospitals, and the like have some obligation. What 21 about any particular unit of government?
22 MR. SLOBODIEN: Yes, the State Executive 23 Law 2b, which is the overarching emergency planning 24 law, directs counties to carry out emergency planning 25 functions to protect public health and safety for Neal R. Gross & Co., Inc.
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Page 2875 1 their citizens.
2 JUDGE McDADE: Okay, let me interrupt for 3 just a second. You referenced NUREG-0654?
4 MR. SLOBODIEN: Yes, Your Honor.
5 JUDGE McDADE: Which I believe is Entergy 6 Exhibit 271. Is that correct?
7 MR. SLOBODIEN: Yes, Your Honor.
8 MR. TENPAS: Yes, Your Honor.
9 JUDGE McDADE: And then you referenced 10 Entergy Exhibit 272?
11 MR. TENPAS: That's the FEMA -- I'm sorry.
12 MR. SLOBODIEN: NUREG -- Your Honor, NUREG-13 0654 and FEMA-REP-1 are the same document, and they 14 are Entergy Exhibit 271.
15 JUDGE McDADE: And 272 is the New York 16 State Radiological Emergency Preparedness Plan.
17 Correct? Is that what you're referring to?
18 MR. SLOBODIEN: I was referring to 19 Executive Law 2b, and -- one moment, Your Honor.
20 JUDGE McDADE: Okay, I'm sorry. I thought 21 you had referred to the New York State Radiological 22 Emergency Preparedness Plan, as well. Had you?
23 MR. SLOBODIEN: Not yet.
24 JUDGE McDADE: Okay. Well, when you do 25 it'll still be 272.
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Page 2876 1 MR. SLOBODIEN: Yes, Your Honor. I 2 understand.
3 JUDGE McDADE: Okay.
4 MR. SLOBODIEN: Let me see if I can recover 5 where I was going. The --
6 MR. TENPAS: Your Honor, if --
7 jUDGE McDADE: That's all right. We'll find 8 it later.
9 MR. TENPAS: Can I assist the witness and 10 just direct his attention to Entergy 283 and see if 11 that's part of what he was intending to be 12 referencing?
13 MR. SLOBODIEN: Yes, Your Honor. That is 14 New York State Executive Law 2b. That Executive Law 15 sets forth the requirements in a broad way for levels 16 of government including the state and counties to 17 carry out protection of public health and safety for 18 a wide variety of disasters including radiological 19 emergencies.
20 MR. TENPAS: And, generally, can you 21 summarize do they just say you must plan, or do these 22 requirements say you must plan to meet a certain level 23 of substantive outcomes, substantive protection?
24 MR. SLOBODIEN: The guidance, the federal 25 guidance which is found in FEMA document, FEMA-REP-1, Neal R. Gross & Co., Inc.
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Page 2877 1 also in 40 CFR 350 lays forth the specific 2 requirements for governments at state and local levels 3 to carry out emergency response. And the NRC says that 4 federal guidelines must be used for carrying out 5 emergency plans and planning response.
6 MR. TENPAS: Okay. And what level of 7 protection do those guidelines call to be achieved?
8 MR. SLOBODIEN: The guideline states that 9 the -- and the requirement in regulation is that a 10 reasonable assurance is provided to protect public 11 health and safety, and it's for everyone.
12 MR. TENPAS: Does it identify any 13 exceptions for any populations, locations, localities 14 where a community or a state can say well, we're going 15 to do it for everybody but that group?
16 MR. SLOBODIEN: There are no exceptions.
17 MR. TENPAS: Okay. Now, you heard some 18 discussion of a set of concerns about evacuation 19 problems itemized sort of by groups. I'd like to take 20 you through those quickly. First, you heard some 21 discussion about the possibility that the poor because 22 of lack of cars, lack of buses, may not -- if it's 23 necessary to evacuate may not be able to do that. Do 24 you have any comment on that, or how -- whether that 25 is considered as a problem in these plans?
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Page 2878 1 MR. SLOBODIEN: The county plans have 2 clearly considered the need to evacuate everyone from 3 the county, those who have their own resources, those 4 who don't have resources, those who are transportation 5 dependent, those who are not ambulatory, those who are 6 sick, those who are in schools, those who are in 7 nursing homes. In every respect of the concerns that 8 were raised the county has plans for dealing with 9 those, and demonstrates them, and FEMA must evaluate 10 those demonstrations during periodic exercises.
11 MR. TENPAS: Okay. So, that talks about 12 Westchester County and its consideration of these. I 13 thought I heard you mention that in addition to the 14 county, the facilities themselves, a nursing home for 15 example, or an assisted living location may have its 16 own supplementary or individualized obligation in this 17 respect. Is that correct?
18 MR. SLOBODIEN: They are required by state 19 code to have those. And I cite there Entergy Exhibits 20 289, 292, 293, and 294 which are the New York codes 21 that address those areas.
22 MR. TENPAS: Okay. So, are schools one of 23 those types of facilities?
24 MR. SLOBODIEN: Yes, they are.
25 MR. TENPAS: Would a jail be one of those Neal R. Gross & Co., Inc.
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Page 2879 1 types of facilities, or a prison?
2 MR. SLOBODIEN: Yes, it is.
3 MR. TENPAS: A hospital?
4 MR. SLOBODIEN: Yes.
5 MR. TENPAS: An assisted living facility?
6 MR. SLOBODIEN: Yes.
7 MR. TENPAS: There has also been some 8 discussion here about shelter in place. Can you 9 discuss whether in your view and based on your 10 experience shelter in place is necessarily an inferior 11 response to evacuation for all circumstances?
12 MR. WEBSTER: Objection; no foundation.
13 JUDGE McDADE: The objection is overruled.
14 MR. SLOBODIEN: Yes. In some cases, 15 sheltering in place is a superior protective measure.
16 EPA 400 describes a variety of situations in which 17 sheltering could be and is a superior protective 18 measure, and considers among other things the nature 19 of the plume. So, for example, plumes that are what we 20 call puff plumes that are passing quickly, often we 21 would benefit from sheltering rather than evacuation.
22 Furthermore, structures of various types 23 have protective action by virtue of the nature of the 24 structure. FEMA -- I'm sorry, EPA 400 provides a 25 specific set of recommendations and a table of values Neal R. Gross & Co., Inc.
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Page 2880 1 of those protection values, dose reduction values that 2 range from essentially none for some structures, to as 3 much as 80 percent for large structures, such as big 4 buildings, large apartment buildings, masonry 5 structures and the like.
6 MR. TENPAS: And there's been some 7 suggestion here that maybe institutional structures 8 are sort of inherently worse or undesirable. Can you 9 comment at all on that notion?
10 MR. SLOBODIEN: Institutional structures 11 are often superior because of the nature of the 12 structure and the fact that shielding is provided not 13 only for the passing plume but also for ground 14 deposition. So, they may be beneficial in those 15 instances.
16 MR. TENPAS: Okay. There's been some 17 discussion about potential challenges that Spanish 18 speaking populations might follow or confront, and 19 questions about whether materials in advance are 20 available. First, can you talk at all about the 21 efforts that are made in advance of an incident to 22 provide materials to communities that might be of 23 particular concern, including Spanish speaking?
24 MR. SLOBODIEN: Well, with regard to 25 language the first action is to determine whether or Neal R. Gross & Co., Inc.
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Page 2881 1 not a particular language represents more than 5 2 percent of the population. In this case of Indian 3 Point, Westchester County has such population.
4 The counties and Entergy put out a variety 5 of information in Spanish in Westchester County 6 including brochures, internet web pages. They have the 7 capability of using telephone notification during an 8 emergency, radio announcements are multilingual, TV 9 announcements are multilingual. The State Office of 10 Finance is used by the State of New York to handle 11 inquiries during an emergency, and it's multilingual 12 beyond Spanish. It has many language capabilities.
13 The hearing impaired which are perhaps a 14 language concern are also addressed. When public 15 statements are made particularly on television, 16 signers are used to assist hearing impaired.
17 MR. TENPAS: Okay. I want to break it up a 18 little chronologically. So, with respect to materials 19 that might be going out by way of education or general 20 education today or at a time before any incident, some 21 of -- those are provided in multiple languages?
22 MR. SLOBODIEN: Those are provided in 23 English and Spanish in Westchester County.
24 MR. TENPAS: Based on your experience in 25 this area, is it the expectation that you're going to Neal R. Gross & Co., Inc.
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Page 2882 1 achieve 100 percent penetration, reach every person 2 through that?
3 MR. SLOBODIEN: No, that's why multiple 4 methods are used for trying to reach parties, the 5 methods that I just described.
6 MR. TENPAS: Okay. Now, let's take the 7 hypothetical that something does happen and word needs 8 to be gotten out to the communities as to how to 9 respond. Based on your review of the plans and your 10 experience in the area, can you describe how one would 11 take account of Spanish language speaking challenges?
12 MR. SLOBODIEN: Emergency information would 13 be provided on radio, television, the county internet, 14 the state internet, and through the state's Emergency 15 Management Internet System called "New York Alert."
16 MR. TENPAS: Okay. And in what language 17 would those communications be conducted?
18 MR. SLOBODIEN: English and Spanish in the 19 case of Westchester County.
20 MR. TENPAS: You mentioned something about 21 a 1-800 number. Can you talk about where that fits in?
22 MR. SLOBODIEN: The State of New York 23 through its Taxation and Finance Division has an 24 inquiry number. It's an 800 number accessible to 25 anyone, not just a New York resident. Tax and Finance Neal R. Gross & Co., Inc.
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Page 2883 1 has a large group of people who have many language 2 skills, not limited to English and Spanish, but a wide 3 variety of languages. And that facility is activated 4 in a radiological emergency according to the State 5 Radiological Emergency Plan, and it responds to 6 inquiries in a wide variety of languages. Most 7 recently it was tested during an exercise in September 8 2012.
9 MR. TENPAS: Okay, that's a useful segue.
10 There was some discussion where people --
11 jUDGE McDADE: Actually, if it's a useful 12 segue, before you get to the segue, let me just 13 interrupt for a second just to make sure when I go 14 back and read the transcript I can find what you're 15 talking about. You're talking specifically about 16 guidance that if over 5 percent of a specific language 17 is spoken in a particular geographic area, that's from 18 FEMA Program Manual of Radiological Emergency 19 Preparedness, Entergy 295. Is that correct?
20 MR. SLOBODIEN: Yes, Your Honor.
21 JUDGE McDADE: And you talked a Spanish 22 edition of the Westchester County Indian Point 23 Emergency Guide. That's Entergy 296?
24 MR. SLOBODIEN: Yes, Your Honor.
25 JUDGE McDADE: And you talked about Neal R. Gross & Co., Inc.
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Page 2884 1 guidance for interrelation with media in non-English, 2 and you referred I believe to an emergency plan. Would 3 that be the Entergy 285D exhibit?
4 MR. SLOBODIEN: Yes, Your Honor.
5 JUDGE McDADE: Okay, thank you. I just want 6 to make sure I can find these things when we go back 7 and look at the transcript.
8 MR. TENPAS: Thank you, Your Honor. We'll 9 go back and looking, too, so we appreciate your 10 assistance there.
11 So, we were talking a moment ago about the 12 plans and there's been some concerns expressed that 13 plans are nice but you can't really count on them.
14 There's no reason to think they'll really be 15 effective. Are there efforts made to evaluate the 16 reality of the plans, the likelihood of their really 17 being effective?
18 MR. SLOBODIEN: There are two types of 19 efforts in that regard. The State of New York conducts 20 an effort in an odd year, in odd numbered year such as 21 2011, and it evaluates the counties in the Indian 22 Point Emergency Planning Zone. The federal government 23 through FEMA evaluates all parties, including the 24 state and the counties on the even years. And this 25 year is an even year. There was an exercise that FEMA Neal R. Gross & Co., Inc.
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Page 2885 1 evaluated. FEMA evaluates performance not only during 2 the exercise but throughout the year to develop its 3 assessment of the capabilities of the government 4 agencies in county level and state.
5 MR. TENPAS: And do you know FEMA has most 6 recently done its work?
7 MR. SLOBODIEN: The most recent FEMA 8 evaluation was in September and October of this year.
9 MR. TENPAS: Now, do you know, does FEMA do 10 that just because they think it's a good idea, they 11 have a statutory charge or direction to do that kind 12 of thing? Why are they in the mix?
13 MR. SLOBODIEN: FEMA is charged to do that 14 by the Memorandum of Understanding between the NRC and 15 FEMA. The Presidential Directive distinguished between 16 FEMA responsibilities and NRC responsibilities in that 17 regard for radiological emergency planning.
18 MR. TENPAS: Your Honor, I'd request the 19 Board's indulgence. That concludes my line. I think I 20 spoke just one moment too quickly. I would request the 21 opportunity for one line of very limited cross of Dr.
22 Mair for clarification purposes as to the following 23 issue.
24 He spoke at considerable length about how 25 he conceives that EJ should be imagined and what Neal R. Gross & Co., Inc.
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Page 2886 1 communities should be embraced with that. I would just 2 seek clarification whether that is based on his belief 3 that it's a regulatory requirement to view it that 4 way, or whether that's his notion --
5 JUDGE McDADE: The question is what is his 6 basis for that --
7 MR. TENPAS: Yes, whether -- I'm sorry.
8 JUDGE McDADE: I'll allow you --
9 MR. TENPAS: Okay, thank you. I'm sorry, 10 I'm catching you unaware, Dr. Mair. Are you ready over 11 there?
12 MR. MAIR: Yes.
13 MR. TENPAS: Okay. You offered an extended 14 discussion about how you thought EJ should be 15 conceived and that it shouldn't be thought of solely 16 in terms of race, or as I understand it solely in 17 terms of economic income status. Is that a fair 18 understanding of your testimony?
19 MR. MAIR: That is not only my testimony, 20 that is the fact in reality. In fact, the National 21 Environmental Justice Network and the Environmental 22 Justice Resource Center at Clark Atlanta University 23 has a robust site of what EJ is and isn't. And one of 24 the things you do not find is a formula that says that 25 EJ is a census determination combined with the Neal R. Gross & Co., Inc.
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Page 2887 1 variables of race and/or income.
2 MR. TENPAS: Thank you. So, the --
3 MR. MAIR: Exclusively.
4 MR. TENPAS: The groups in those sites that 5 you're referring to, when they're describing what they 6 conceive EJ to be and not to be are private 7 organizations. Correct?
8 MR. MAIR: Say that again.
9 MR. TENPAS: The groups and websites that 10 you referenced who prepared documents saying here's 11 what we conceive EJ to be about and what it should 12 cover, those are private organizations. Correct?
13 MR. MAIR: Well, more than that. Dr.
14 Charles Lee who is one of the EPA experts for the 15 National Environmental Justice Advisory Committee had 16 worked a lot on -- in fact, he did the pioneering 17 study and he's staff at the EPA. But equally and more 18 importantly, this is the standard that when 19 communicated in creating the Executive Order, 20 naturally they did not prescribe a particular formula, 21 per se, but it is not the notion of a few private 22 groups. It is the entities that define the language, 23 and more importantly the EJRC at Clark Atlanta 24 University is a university that provides I would say 25 the nation's best expertise on these definitions.
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Page 2888 1 MR. TENPAS: Okay. In terms of an agency's 2 obligation such as the NRC, based on your experience 3 and expertise, would you agree with me that an agency 4 in understanding what its obligations to conduct EJ 5 analysis is governed by the directions of the Council 6 on Environment Equality and their regulations?
7 MR. WEBSTER: Objection; that calls for a 8 legal conclusion.
9 JUDGE McDADE: Sustained.
10 MR. MAIR: Rephrase.
11 MR. TENPAS: Would you agree that the 12 positions -- in taking these positions about what EJ 13 should be and should mean, these various private 14 organizations, what they are seeking to do --
15 MR. WEBSTER: Objection. The witness has 16 said that these were just private organizations, and 17 the witness cited an NRC document while giving his 18 testimony.
19 JUDGE McDADE: Excuse me. When you have an 20 objection initially just simply state the objection.
21 I will allow the completion of the question so I have 22 a full idea of what the objection is to. But I won't 23 forget you. If you sit there and say objection, I just 24 won't let it go along. But, anyway, finish the 25 question. Don't start answering the question until Neal R. Gross & Co., Inc.
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Page 2889 1 your counsel has an opportunity to explain his 2 objection.
3 MR. TENPAS: Thank you, Your Honor. Let's 4 set aside the EPA, the work that was done by a single 5 EPA employee, refer to documents put out by a number 6 of organizations in which they describe what they 7 think EJ should be and is about. Correct?
8 MR. WEBSTER: Objection, Your Honor. The 9 witness referred to a document written by NRC Staff.
10 MR. TENPAS: I'm sorry, if I misspoke, NRC 11 Staff rather than EPA Staff.
12 MR. WEBSTER: No, the witness referred to 13 EPA Staff, as well.
14 MR. TENPAS: Okay.
15 MS. SUTTON: Kathryn Sutton for the 16 Applicant.
17 JUDGE McDADE: Excuse me. I'm going to 18 allow the question. This is a witness who I think is 19 very capable of listening to the question, and if he 20 agrees with part of it and not other parts of it, of 21 articulating that part which he agrees with, and that 22 part which he disagrees with, and not to take it as a 23 all or nothing. Do you need the question repeated, 24 sir?
25 MR. MAIR: Please.
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Page 2890 1 MR. TENPAS: Okay. The various 2 organizations that you've referenced that take and try 3 to define what EJ is, would you agree with me that in 4 doing that they are trying to influence and change 5 government practices?
6 MR. MAIR: No.
7 MR. TENPAS: So --
8 MR. MAIR: Let me clarify.
9 JUDGE McDADE: You can if you want, but 10 you've answered the question.
11 MR. MAIR: Yes.
12 JUDGE McDADE: If you feel it needs 13 clarification, you can.
14 MR. MAIR: Just -- yes, let me -- the 15 answer is no. When helping to shape the State of New 16 York's EJ Advisory area, EJ definition area, it was an 17 interdisciplinary body, panel and it included a whole 18 range of variables. In fact, it used the model that 19 was generated as a baseline by the U.S. Department of 20 -- well, the U.S. Department of Environmental 21 Protection Agency, EPA. They actually developed a 22 software to aid and facilitate the creation on 23 definition of EJ areas. And at a minimum, I believe 24 race and poverty variables amongst many from the 25 census were used to set up their algorithm. So, (a)
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Page 2891 1 no, it is not something that is the domain of private 2 or individuals, it has been a collaborative effort, no 3 more than the U.S. Chamber of Commerce has helped 4 shape trade policy, and helped shape regulations and 5 rules. So, it's a function of both I would say 6 government, public and private, but in so far as the 7 hard and fast this is the rule, the answer is no.
8 MR. TENPAS: Well, ultimately, the process 9 you were just talking to culminated in the Government 10 of New York, the official State of New York 11 promulgating rules. Correct?
12 MR. MAIR: Correct.
13 MR. TENPAS: So, it was ultimately the 14 State of New York's rule that resulted from that 15 process you described. Correct?
16 MR. MAIR: If you're talking to the 17 variables that I saw there of using race only and 18 income only, that is not the algorithm that I am 19 familiar with.
20 MR. TENPAS: Would you agree, similarly, 21 that the federal algorithms have perhaps emerged 22 through a similar process, discussion and interchange 23 between government and private with government 24 agencies finally issuing more formal standards and 25 guidance?
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Page 2892 1 MR. MAIR: Agree.
2 MR. TENPAS: Nothing further, Your Honor.
3 JUDGE McDADE: Mr. Webster.
4 MR. WEBSTER: Your Honor, maybe I can just 5 start with a few questions of the NRC Staff. Ms.
6 Milligan, you referred to Entergy 266, the CEQ EJ 7 guidelines. I think you referred to page 32 on the 8 PDF, if we can pull that up. That's Entergy 266. If we 9 go to page 32 of the PDF, halfway down the -- the top 10 part of the page where it starts -- there's underlined 11 page 32 of the PDF. Maybe my New Jersey accent is 12 causing a problem here. So, you start in the paragraph 13 where it says "disproportionate adverse." That's the 14 one, exactly.
15 Ms. Milligan, is this the paragraph that 16 you read out during your testimony?
17 MS. MILLIGAN: Yes.
18 MR. WEBSTER: And would you like to look at 19 Part B of that section and just read it again for me.
20 MS. MILLIGAN: Certainly. "Whether the risk 21 or rate of hazard exposure by minority population, 22 low-income population, or Indian tribe to an 23 environmental hazard is significant (as employed by 24 NEPA) and appreciably exceeds or is likely to 25 appreciably exceed the risk or rate to the general Neal R. Gross & Co., Inc.
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Page 2893 1 population or other appropriate comparison group."
2 MR. WEBSTER: Okay. And have you done a 3 study that determines whether the risk to minority, 4 low-income populations in accident scenarios 5 appreciably exceeds or is likely to appreciably exceed 6 the risk or rate to the general population?
7 MS. MILLIGAN: No, we look at the entire 8 population. We don't single out any particular 9 population. When we consider offsite consequences it's 10 for the entire population. It's for nursing home 11 patients, it's for low-income patients, or people.
12 It's for everyone in the area. We don't single out and 13 say let's just look at this, we look at everyone. And 14 we plan accordingly to insure that the risks are not -
15 - are within the federal limits so there is no adverse 16 effect, or disproportionately high adverse effect on 17 the population. I'm sorry.
18 MR. WEBSTER: So, you don't -- let me just 19 clarify that. At the end you got a little confusing 20 there.
21 MS. MILLIGAN: Yes, I was trying to 22 remember all the words.
23 MR. TURK: And I would also ask the witness 24 to speak a little more slowly so the reporter can 25 capture it all.
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Page 2894 1 MS. MILLIGAN: Yes, sorry.
2 JUDGE McDADE: Our reporter is a wizard, 3 but do speak a little slower.
4 MS. MILLIGAN: Absolutely, sir. Sorry.
5 MR. WEBSTER: So, when do you a study of 6 risk to accident you look at the whole population, you 7 don't segregate out environmental justice populations.
8 Is that correct?
9 MS. MILLIGAN: That's correct, but we do 10 look at maximally exposed individuals.
11 MR. WEBSTER: Okay.
12 MS. MILLIGAN: So, we don't consider --
13 MR. WEBSTER: Let me ask this question, if 14 you don't -- go ahead.
15 MS. MILLIGAN: We consider the maximally 16 exposed individuals as part of our analysis.
17 MR. WEBSTER: And how does looking at the 18 maximally exposed individual determine whether there's 19 a differential between the environmental justice 20 populations and general populations?
21 MS. MILLIGAN: Well, as I said, sir, we're 22 not looking at environmental justice environmental 23 populations from my perspective for an accident 24 analysis. When I'm looking at what would be the doses 25 as a result of an accident I'm looking at what would Neal R. Gross & Co., Inc.
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Page 2895 1 the impact be to the entire population, all the 2 people. And then I look at who the maximally exposed, 3 and then I look at what the impact would be of 4 successful emergency planning efforts on those 5 populations. From that, we have our regulations that 6 are set up and implemented, exercised, tested, and 7 evaluated on a regular basis that provide the 8 assurance that those populations, all populations will 9 be protected within the federal limits -- guidelines.
10 MR. WEBSTER: Okay, thank you. Mr. Rikhoff, 11 a question for you. Referring to Entergy -- sorry, 12 referring to NRC 63, which I believe is JRR. That's 13 your testimony, answer 23. If you can pull that up, 14 that's at page 18 of the PDF. A23, could you just read 15 the second sentence for me?
16 MR. RIKHOFF: "While census block data is 17 preferred for identifying the location of minority 18 communities, census block group data was chosen 19 because it contains poverty and income information."
20 MR. WEBSTER: Okay. Did Entergy also supply 21 you with -- well, let's ask first, why is census block 22 data preferred rather than census block group data?
23 MR. RIKHOFF: Well, as previously stated in 24 someone else's testimony, block data is more finite.
25 It also -- census provides demographic information at Neal R. Gross & Co., Inc.
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Page 2896 1 the block level.
2 MR. WEBSTER: And as part of the SAMA 3 analysis, did Entergy supply the agency with the 4 census block data?
5 MR. RIKHOFF: I'm not an expert, and I did 6 not conduct the SAMA analysis.
7 MR. WEBSTER: Okay. Did you ask your 8 colleagues who did come up with the SAMA analysis if 9 they had that data?
10 MR. RIKHOFF: No, sir.
11 MR. WEBSTER: If using census block data is 12 preferred, why didn't you obtain that data?
13 MR. RIKHOFF: I've used census block data 14 in the past, but as CEQ guidance provides for federal 15 agencies, you can use up to the census tract level. I 16 mean, all this information is various groupings of 17 census information. Block group data is just as 18 accurate. It includes the block-level data.
19 MR. WEBSTER: So, why didn't you do the 20 analysis that's preferred here?
21 MR. RIKHOFF: I was following NRC guidance.
22 MR. WEBSTER: Well, when you say census 23 block data is preferred, is that not embodied in any 24 NRC guidance or is that your personal opinion?
25 MR. RIKHOFF: Personal opinion.
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Page 2897 1 MR. WEBSTER: Okay. So, if we refer to 2 Clearwater Exhibit 51, that is an account of an NRC 3 analysis of VC Summer. Have you reviewed that exhibit?
4 MR. RIKHOFF: Yes, I have.
5 MR. WEBSTER: And do you agree with me that 6 that suggests that the NRC is progressing in its EJ 7 analysis to excellence?
8 MR. RIKHOFF: I do not agree with --
9 jUDGE McDADE: I'm going to --
10 MR. RIKHOFF: I'm sorry.
11 JUDGE McDADE: You don't have to answer 12 that. He's simply asking for speculation.
13 MR. RIKHOFF: Okay.
14 MR. WEBSTER: Do you agree with me --
15 MR. TENPAS: Thank you, Your Honor.
16 MR. WEBSTER: -- that in some 17 circumstances the NRC guidelines on assessment of 18 environmental justice require going beyond the census 19 block group analysis?
20 MR. RIKHOFF: This is not NRC guidance.
21 This was a presentation at a convention.
22 MR. WEBSTER: That's right. Could you 23 answer my question?
24 JUDGE McDADE: The question has to do with 25 guidance, not with this particular exhibit, but with Neal R. Gross & Co., Inc.
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Page 2898 1 the NRC guidance that you referred to earlier.
2 MR. RIKHOFF: No, because we follow the 3 Executive Order 12898 which specifically states that 4 we consider the impacts to minority and low-income 5 populations, as stated in the title of Executive Order 6 12898.
7 MR. WEBSTER: So, to be clear, it's your 8 testimony that you never have to go beyond census 9 block group analysis irrespective of the outcome of 10 that analysis.
11 MR. RIKHOFF: Not in an EJ analysis.
12 MR. WEBSTER: Okay. And, sir, have you done 13 similar analyses for other plants, other plants during 14 relicensing?
15 MR. RIKHOFF: Yes, sir.
16 MR. WEBSTER: And how many plants have you 17 analyzed?
18 MR. RIKHOFF: I've been involved with 45, 19 more than 45 Environmental Impact Statements, 20 Environmental Justice Analyses, approximately 60 21 including Environmental Assessments for Research Test 22 Reactor Renewals, as well as extended power uprates.
23 MR. WEBSTER: Okay. For the relicensing, 24 how many relicensings have you been involved with in 25 terms of environmental justice analysis?
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Page 2899 1 MR. RIKHOFF: That would be 50.
2 MR. WEBSTER: Okay. And of those 50 3 analyses how many have found disproportionate impacts?
4 MR. RIKHOFF: None in license renewal.
5 MR. WEBSTER: I just have a couple of 6 questions for Mr. Slobien?
7 MR. SLOBODIEN: Slobodien.
8 MR. WEBSTER: Slobodien, I apologize.
9 JUDGE McDADE: It was the New Jersey 10 accent.
11 MR. WEBSTER: I was just in Slovenia so I'm 12 obviously making a few mistakes here.
13 Do you agree with me, Mr. Slobodien, that 14 the NRC guidance requires site-specific analysis of 15 environmental justice impact?
16 MR. SLOBODIEN: I'm not an expert in 17 environmental justice. I'm a health physicist and an 18 expert in emergency planning. I can't answer that 19 question.
20 MR. WEBSTER: In terms of your outreach to 21 minority populations have you tested how successful 22 that outreach is?
23 MR. SLOBODIEN: Not in an analytical way, 24 but the counties of -- in particular, Westchester, 25 through anecdotal work and through their staff who are Neal R. Gross & Co., Inc.
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Page 2900 1 in social services test those performance.
2 MR. WEBSTER: So Entergy, itself, does not 3 test.
4 MR. SLOBODIEN: Entergy has not, no.
5 MR. WEBSTER: What has Entergy done to 6 determine the site-specific ability of buildings 7 around Indian Point, to determine the site-specific 8 suitability of the buildings around Indian Point for 9 shelter in place?
10 MR. SLOBODIEN: Entergy relies on the EPA 11 guidance in EPA 400.
12 MR. WEBSTER: I don't think you answered my 13 question, though. What was the answer to my question?
14 JUDGE McDADE: He did answer your question.
15 MR. WEBSTER: Is it true to say that 16 Entergy has not done any site-specific work on those 17 buildings, institutional buildings around Indian Point 18 to determine how suitable they are for shelter in 19 place?
20 MR. SLOBODIEN: Entergy relies on EPA 21 guidance for making evaluations on institutional 22 facilities as to their dose reduction potential.
23 JUDGE McDADE: That means no.
24 MR. SLOBODIEN: Yes, Your Honor, that's no.
25 MR. WEBSTER: Thank you, Your Honor. Okay.
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Page 2901 1 Back to Mr. Rikhoff. I believe you testified -- this 2 is the last question. That 57 block groups that 3 contain environmental justice -- that meet NRC's 4 environmental justice criteria are identified in the 5 ER in the FSEIS, including the block groups that 6 contain Sing Sing and the Westchester County 7 Correction facilities. Is that correct?
8 MR. RIKHOFF: Yes.
9 MR. WEBSTER: So, you agree with me that 10 the populations inside these facilities are 11 incarcerated?
12 MR. RIKHOFF: I'm not sure I understand the 13 question.
14 MR. WEBSTER: Your testimony is that 15 there's 57 block groups that contain correctional 16 facilities.
17 MR. RIKHOFF: No, that's not what I said.
18 MR. WEBSTER: Okay. Can we go to Entergy --
19 oh, no wonder, this is my annotation. It's actually 20 Mr. Rigs who said this. Perhaps I can -- I have two 21 JRs on my notation here. My apologies.
22 Mr. Riggs, does that sound familiar?
23 MR. RIGGS: It does sound familiar.
24 MR. WEBSTER: Okay. So, are the individuals 25 within those correctional facilities incarcerated?
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Page 2902 1 MR. RIGGS: Within the correctional 2 facilities, yes, they are incarcerated.
3 MR. WEBSTER: And the correctional 4 facilities you identified, do they meet the 5 environmental justice criteria?
6 MR. RIGGS: The answer is it depends what 7 the deal is. And the census data itself, what we've 8 got is no differentiation between the actual 9 population and the incarcerated population, so we 10 could use the census data to actually locate 11 incarcerated populations, but we can't differentiate 12 them from the general population outside those areas.
13 MR. WEBSTER: Can we pull up Entergy 258.
14 JUDGE McDADE: Let me just clarify 15 something for myself. In a situation like Sing Sing 16 where it is a census block in and of itself, you can 17 do both, but in most instances it would be impossible.
18 Correct?
19 MR. RIGGS: That's sort of true, Your 20 Honor. What's going on is we can't identify the 21 correctional facility by name with the census data. We 22 can only verify that there is an incarcerated 23 population there. And then we have to use some 24 geography to identify the location and analyze the 25 population to see if it's approximately the population Neal R. Gross & Co., Inc.
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Page 2903 1 of the correctional facility.
2 JUDGE McDADE: Okay.
3 MR. RIGGS: I think I misspoke. I think --
4 I'm trying to recall from memory. I think you can 5 differentiate the -- no, I'm going to have to --
6 MR. WEBSTER: Let me refresh your memory, 7 if we pull up --
8 jUDGE McDADE: If I could, since I mucked 9 t this up, I want to at least clarify it in my own 10 mind before I move on. Sing Sing is a census block in 11 and of itself.
12 MR. RIGGS: That's correct. Well, that's 13 correct, if you look at the geography. It's not by 14 census -- it's not found solely through the census 15 information.
16 JUDGE McDADE: But all of the people in 17 that census block are resident at Sing Sing.
18 MR. RIGGS: I believe that's correct.
19 JUDGE McDADE: There's, whatever, 1,731 20 listed in Sing Sing, and 1,731 listed in the census 21 block information.
22 MR. RIGGS: Right, right. That's correct.
23 JUDGE McDADE: So, if the census block 24 information tells you that it's 89 percent minority, 25 you could interpret from that that since the census Neal R. Gross & Co., Inc.
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Page 2904 1 block and Sing Sing are contiguous, that Sing Sing as 2 an entity is 89 percent minority.
3 MR. RIGGS: Yes, Your Honor, in that 4 specific case.
5 JUDGE McDADE: But in the other instances 6 where you have a penal institution in the census block 7 you can identify that there is a penal institution in 8 the census block, and you can determine what the 9 minority population is of the census block, but you 10 can't relate directly one to the other.
11 MR. RIGGS: They're not necessarily 12 related.
13 JUDGE McDADE: Okay. Mr. Webster.
14 MR. WEBSTER: Let's go to Entergy 258 at 15 PDF page 43. I'm sorry, Your Honor, I thought this was 16 going to be a quick question but it's a little more 17 confusing than I anticipated. Give me 44, sorry. Next 18 page. Okay. The second sentence of this at the top of 19 the page there, could you read the second sentence?
20 MR. RIGGS: "The correctional institution 21 subclassification includes prisons, federal detention 22 centers, military disciplinary barracks, jails, local 23 jails, and other confinement facilities, halfway 24 houses, and other types of correctional institution."
25 MR. WEBSTER: Okay. So, am I correct in Neal R. Gross & Co., Inc.
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Page 2905 1 saying then that from the census block data you can 2 determine the existence of correctional institutions?
3 MR. RIGGS: Well, what we're describing in 4 t this is it's a subdivision of block -- of group 5 quarters. In the census data we've got housing units, 6 and then we've got group quarters on the other hand.
7 A further breakdown for group quarters we see 8 institutionalized and non-institutionalized 9 populations. And then they further break down those 10 into other various subcategories which includes 11 prisons, halfway houses, so on and so forth.
12 MR. WEBSTER: All right. Now let's go to 13 page 45, answer 51. Can you read the first two 14 sentences of answer 51?
15 MR. RIGGS: Yes. "I have confirmed that 16 there are 67 block groups within the 50-mile region 17 that contain census defined correctional institutions.
18 Of those 57 census block groups exceed the NRC defined 19 minority criteria as explained in Section 2622 and 20 illustrated in Figures 2-22 and 2-23 of Indian Point 21 ER."
22 MR. WEBSTER: Okay. Is that testimony 23 reliable as you sit here today?
24 MR. RIGGS: Oh, yes, absolutely.
25 MR. WEBSTER: And did you obtain that Neal R. Gross & Co., Inc.
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Page 2906 1 conclusion from the census data?
2 MR. RIGGS: I did.
3 MR. WEBSTER: Okay. So, can you regard the 4 fact that these people are incarcerated as unique to 5 them?
6 JUDGE McDADE: Rephrase. I don't understand 7 the question.
8 MR. WEBSTER: Well, are there other people 9 -- excluding these 67 block groups, 57 of which meet 10 the criteria, are there other people within the 50 11 miles that are incarcerated?
12 MR. RIGGS: Not based on the census data.
13 MR. WEBSTER: Okay. And if you know, is 14 this issue discussed at all in the FSEIS?
15 MR. RIGGS: I don't know.
16 MR. WEBSTER: Okay. Let's go back to Mr.
17 Rikhoff. Mr. Rikhoff, is the extent of these 18 populations discussed in the FSEIS?
19 MR. RIKHOFF: No, it's not.
20 MR. WEBSTER: That's all I have, Your 21 Honor. Thank you very much.
22 JUDGE McDADE: Mr. Turk.
23 MR. TURK: Thank you, Your Honor. Both 24 myself and Ms. Ghosh have some questions for the 25 witnesses. Ms. Ghosh will go first, Your Honor, and Neal R. Gross & Co., Inc.
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Page 2907 1 we'll try to keep it brief. I would note, however, 2 that it's about an hour and a half since the last 3 break. What is your preference, Your Honor, do you 4 want to take a quick break or should we just go 5 forward?
6 JUDGE McDADE: Just go forward.
7 MR. TURK: Thank you.
8 MS. GHOSH: Mr. Rikhoff, early in your 9 testimony you mentioned the findings in 10 CFR Part 10 51, Table B1 but you didn't have the exhibit in front 11 of you -- or the regulations in front of you. For 12 clarification of the record, do you have it in front 13 of you now?
14 MR. RIKHOFF: Yes, I do.
15 MS. GHOSH: Can you read the findings of 10 16 CFR Part 51, Table B1?
17 MR. RIKHOFF: This has to do with the 18 finding on severe accidents. "The probability weighted 19 consequences of atmospheric releases fall out and onto 20 open water" -- excuse me. This is a little small for 21 my reading glasses. "Releases fall out onto open 22 bodies of water, releases to groundwater and societal 23 and economic impacts from severe accidents are small 24 for all plants."
25 MS. GHOSH: Thank you. Mr. Rikhoff, are you Neal R. Gross & Co., Inc.
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Page 2908 1 familiar with Clearwater Exhibit 51 that we were 2 looking at earlier? Can we bring that up? Dave 3 Matthews' presentation.
4 MR. RIKHOFF: Oh, Dave Matthews, yes. Yes, 5 I am.
6 MS. GHOSH: The VC Summer proceeding, was 7 that a license renewal proceeding?
8 MR. RIKHOFF: No, it was not.
9 MS. GHOSH: What kind of proceeding was it?
10 MR. RIKHOFF: It was for the construction 11 of a new nuclear power plant.
12 MS. GHOSH: Are the impacts considered in 13 new reactor proceedings -- how do those compare to 14 those in license renewal?
15 MR. RIKHOFF: Well, the impacts for a new 16 reactor would involve the construction as well as the 17 operation of the nuclear power plant.
18 MS. GHOSH: And those are not considered in 19 license renewal.
20 MR. RIKHOFF: Construction is not 21 considered in license renewal.
22 MS. GHOSH: Thank you. Ms. Milligan, in 23 your testimony earlier you mentioned that you spoke 24 with Colonel Kirkpatrick, and you mentioned that you 25 viewed the Sing Sing Emergency Plans. So, did you Neal R. Gross & Co., Inc.
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Page 2909 1 actually see the emergency plans for Sing Sing?
2 MS. MILLIGAN: Yes, I did.
3 MS. GHOSH: And did you see the 4 radiological emergency plans?
5 MS. MILLIGAN: Yes, I did.
6 MS. GHOSH: I know --
7 MR. WEBSTER: Your Honor, I'm going to 8 object to the Staff putting in the contents of the 9 emergency plan if that's their intention, because they 10 never disclosed that. It's never been reviewed by --
11 JUDGE McDADE: Is that your intent?
12 MS. GHOSH: Not to put in the contents, but 13 maybe some of the discussion with Colonel Kirkpatrick 14 regarding potential impacts to prisoners at Sing Sing.
15 JUDGE McDADE: Okay. Well, the testimony 16 has been that she has reviewed the plans, she has 17 spoken with Colonel Kirkpatrick. You're now going to 18 ask not about the content of the plan which is not in 19 evidence but ask about the conversations.
20 MS. GHOSH: Yes. Ms. Milligan, did you have 21 -- when you spoke with Colonel Kirkpatrick, did you 22 have any conversations regarding how New York State 23 officials would respond to a severe accident?
24 MR. WEBSTER: Objection, that's going to 25 discuss the plan.
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Page 2910 1 JUDGE McDADE: I don't know if it is or 2 not. The question is did you have the discussions, yes 3 or no?
4 MS. MILLIGAN: Yes, I had those discussions 5 with him.
6 MS. GHOSH: Did you -- in your conversation 7 did you have any discussion regarding -- well, earlier 8 Mr. Papa and Dr. Edelstein mentioned impacts, psycho 9 social impacts and potential breakdown for social 10 order. Was there any sort of discussion that you had 11 with Colonel Kirkpatrick regarding those issues?
12 MS. MILLIGAN: Yes.
13 MS. GHOSH: Could you describe those?
14 MS. MILLIGAN: Colonel Kirkpatrick has been 15 working in the correctional system in New York for a 16 very long time, maybe 20 years plus or minus. We 17 talked about his experiences in a variety of 18 emergencies, and when there's been those sorts of 19 emergencies he's explained that prisoners have become 20 more cooperative rather than less cooperative because 21 it's been in their interest to be more cooperative in 22 order to be assisted in terms of evacuations. He 23 referenced some prison literature that I was not 24 familiar with -- prison studies.
25 MS. GHOSH: Thank you.
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Page 2911 1 JUDGE McDADE: Is that all?
2 MS. GHOSH: That's all I have.
3 JUDGE McDADE: Mr. Turk.
4 MR. TURK: Thank you, Your Honor. Let me 5 start with a question to Mr. Rikhoff. There was a 6 question a moment ago about group quarters, and 7 whether the FEIS specifically mentions group quarters.
8 Did you consider the populations in group quarters in 9 preparing the Environmental Justice section of the 10 EIS?
11 MR. RIKHOFF: We considered all minority 12 and low-income populations regardless of whether they 13 were in an institution or out of an institution, group 14 quarters in other words.
15 MR. TURK: So, I understand you to mean 16 that populations within group quarters were included 17 within your analysis.
18 MR. RIKHOFF: That's correct.
19 MR. TURK: Also, you spoke earlier today 20 about license renewal and there's a section of your 21 discussion in the EIS in which you said that there are 22 no increased or additional impacts for license renewal 23 beyond those of an operating plant. Could you explain 24 to what extent did you consider the impacts of an 25 operating plant in doing your analysis?
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Page 2912 1 MR. RIKHOFF: We looked at all the other 2 resource areas to determine what effects the continued 3 operation of the nuclear power plant would have on 4 clean air, clean water, human health effects, and we 5 found that there were no new or added -- there would 6 be no new or added effects from license renewal.
7 MR. TURK: Did you consider what are the 8 impacts of continued operation of an existing plant?
9 MR. RIKHOFF: Yes.
10 MR. TURK: And how did that factor into 11 your analysis?
12 MR. RIKHOFF: It resulted in a conclusion 13 that there would be no disproportionally higher 14 adverse effects on minority and low-income population 15 from the continued operation of the nuclear power 16 plant in the extended period of operation.
17 JUDGE McDADE: Disproportionate to the?
18 MR. RIKHOFF: The general population, 19 sorry.
20 JUDGE McDADE: Okay. That was my question.
21 Disproportionate in the period of extended operation 22 to the general population during the period of 23 extended operation?
24 MR. RIKHOFF: That's correct, Your Honor.
25 MR. TURK: Well, let me see if I can break Neal R. Gross & Co., Inc.
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Page 2913 1 that down for a second. If you were to think only 2 about the existing nuclear power plants, Indian Point 3 Units 2 and 3, do you believe that those plants have 4 a disproportionate high adverse impact on minority or 5 low-income populations as currently operating plants?
6 MR. RIKHOFF: I did not make that 7 assessment of current operations, only in the license 8 renewal term. But I don't believe so.
9 MR. TURK: Ms. Milligan, I'd like to ask 10 you a few questions about emergency preparedness. How 11 long have you been doing emergency preparedness?
12 MS. MILLIGAN: 25, 27 years, but I was a 13 baby when I started.
14 JUDGE WARDWELL: You're under oath.
15 (Laughter.)
16 MS. MILLIGAN: A teenager.
17 MR. TURK: Could you identify the 18 regulations under which the NRC imposes regulatory 19 requirements on nuclear power plants for emergency 20 preparedness?
21 MS. MILLIGAN: Certainly, it's 10 CFR 50.47 22 and Appendix E.
23 MR. TURK: Appendix E to 10 CFR Part 50.
24 MS. MILLIGAN: Yes, that's correct, sorry.
25 MR. TURK: Indian Point Units 2 and 3 are Neal R. Gross & Co., Inc.
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Page 2914 1 operating nuclear facilities. Correct?
2 MS. MILLIGAN: Yes.
3 MR. TURK: And as such are they subject to 4 the requirements of those regulations?
5 MS. MILLIGAN: Yes.
6 MR. TURK: Are the emergency preparedness 7 plans, both on site and off site for Indian Point 8 Units 2 and 3 subject to review by the NRC and FEMA?
9 MS. MILLIGAN: Yes.
10 MR. TURK: And are exercises conducted on 11 a regular basis by the NRC and FEMA of those plans?
12 MS. MILLIGAN: Yes, that's correct.
13 MR. TURK: And I assume that because the 14 plants are continuing to operate that the emergency 15 preparedness plans have been found to be adequate. Is 16 that correct?
17 MS. MILLIGAN: Yes, that's correct.
18 MR. TURK: This question goes to Mr.
19 Slobodien. There's been some testimony today about 20 evacuation times and the limited nature of the roads 21 in the area of Indian Point. Do you know whether 22 evacuation time estimates are considered as part of 23 Indian Point's emergency preparedness plans?
24 MR. SLOBODIEN: They are a part of the 25 emergency plan, yes.
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Page 2915 1 MR. TURK: And, in fact, 10 CFR Part 50, 2 Appendix E requires evacuation time estimates for the 3 emergency preparedness zone, the 10-mile plume 4 exposure pathway, EPZ around Indian Point. Correct?
5 MR. SLOBODIEN: That is correct.
6 MR. TURK: So, is it fair to say that FEMA 7 has considered the adequacy of the roads and the 8 evacuation time estimates that Entergy has prepared?
9 MR. SLOBODIEN: Yes, that is fair to say.
10 MR. TURK: Also, there's been some 11 testimony about nursing homes and special needs 12 populations. Do the emergency plans for off site 13 populations include provisions for vehicles, both 14 buses and ambulances, and other special vehicles for 15 the evacuation of persons from institutions?
16 MR. SLOBODIEN: Yes, they do.
17 MR. TURK: And are there Letters of 18 Agreement required and provided as part of those 19 plans?
20 MR. SLOBODIEN: Yes, the counties have 21 Letters of Agreement with various providers for those 22 services.
23 MR. TURK: And that's in accordance with 24 FEMA requirements?
25 MR. SLOBODIEN: Yes.
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Page 2916 1 MR. TURK: And FEMA has found the Letters 2 of Agreement for such vehicles to be adequate?
3 MR. SLOBODIEN: Yes.
4 MR. TURK: And this is something FEMA looks 5 at on a regular basis, is it not true?
6 MR. SLOBODIEN: Yes, that is correct.
7 MR. TURK: Also, there was some discussion, 8 I believe this was from Mr. Simms about patients in 9 assisted care facilities and perhaps nursing homes who 10 need medications, and who might be unable to obtain 11 medications in the event of an evacuation. Did you 12 hear that testimony?
13 MR. SLOBODIEN: I did.
14 MR. TURK: Are there provisions in the 15 emergency preparedness plans for persons in such 16 institutions to be evacuated safely?
17 MR. SLOBODIEN: Yes, there are provisions 18 to evacuate them safely.
19 MR. TURK: And how would they obtain 20 medications in the event of an evacuation?
21 MR. SLOBODIEN: The institution provides 22 medications, and they are also administered at 23 reception centers, if necessary.
24 MR. TURK: And do the institutions also 25 assure that there will be a nurse or other caretaker, Neal R. Gross & Co., Inc.
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Page 2917 1 care provider available to assist in the 2 transportation of persons who need assistance?
3 MR. SLOBODIEN: Generally they do in 4 accordance with their specific plans.
5 MR. TURK: And those would be the plans of 6 the institutions.
7 MR. SLOBODIEN: Yes, the plans of the 8 institutions.
9 MR. TURK: Ms. Milligan, without going into 10 the details of your conversation with Colonel 11 Kirkpatrick, and certainly without referring to the 12 plan itself, did Colonel Kirkpatrick express to you an 13 opinion as to whether they could evacuate prisoners 14 safely within an appropriate time in an event 15 evacuation was decided upon?
16 MS. MILLIGAN: Yes.
17 MR. TURK: And what was his statement to 18 you in that regard?
19 MS. MILLIGAN: He had absolute confidence 20 that they would be able to safely evacuate all the 21 prisoners at Sing Sing including special needs 22 populations at Sing Sing in a very timely fashion.
23 MR. TURK: I have nothing further, Your 24 Honor. Thank you.
25 JUDGE McDADE: Okay, we are in recess until Neal R. Gross & Co., Inc.
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Page 2918 1 tomorrow at 9:00. To the witnesses, thank you very 2 much. We appreciate your being here and the testimony 3 you've given. It's very helpful to us.
4 Are there any administrative matters that 5 need to be taken up this evening before we break until 6 tomorrow? Mr. Turk?
7 MR. TURK: No, Your Honor.
8 JUDGE McDADE: From Clearwater?
9 MR. WEBSTER: No, Your Honor.
10 JUDGE McDADE: Riverkeeper?
11 MS. BRANCATO: No, Your Honor.
12 JUDGE McDADE: New York?
13 MR. SIPOS: No, Your Honor.
14 JUDGE McDADE: Entergy?
15 MR. TENPAS: No, Your Honor.
16 JUDGE McDADE: We are in recess. Thank you.
17 (Whereupon, the proceedings went off the 18 record at 6:51 p.m.)
19 20 21 22 23 24 25 Neal R. Gross & Co., Inc.
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CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission Proceeding: Entergy Nuclear Operations, Inc.
Indian Point Units 2 and 3 Docket Number: 50-247-LR and 50-286-LR ASLBP Number: 07-858-03-LR-BD01 Location: Tarrytown, New York were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken and thereafter reduced to typewriting under my direction and that said transcript is a true and accurate record of the proceedings.
Official Reporter Neal R. Gross & Co., Inc.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com