ML13170A126
| ML13170A126 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 06/19/2013 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| RAS 24705, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, NRC-4280 | |
| Download: ML13170A126 (75) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Entergy Nuclear Operations Indian Point Units 2 and 3 Docket Number:
50-247-LR and 50-286-LR ASLBP Number:
07-858-03-LR-BD01 Location:
(teleconference)
Date:
Monday, June 10, 2013 Work Order No.:
NRC-4280 Pages 4486-4559 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433
4486 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 UNITED STATES OF AMERICA 1
NUCLEAR REGULATORY COMMISSION 2
+ + + + +
3 ATOMIC SAFETY AND LICENSING BOARD PANEL 4
+ + + + +
5 HEARING 6
x 7
In the Matter of: :
8 ENTERGY NUCLEAR
- Docket Nos. 50-247-LR and 9
OPERATIONS, INC. : 50-286-LR 10 11 (Indian Point Nuclear : ASLBP No. 07-858-03-LR-BD01 12 Generating Units 2 :
13 and 3) 14
x 15 Monday, June 10, 2013 16 17 Teleconference 18 19 BEFORE:
20 LAWRENCE G. McDADE, Chairman 21 RICHARD E. WARDWELL, Administrative Judge 22 MICHAEL KENNEDY, Administrative Judge 23 24
4487 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 APPEARANCES:
1 2
On Behalf of Entergy 3
Paul M. Bessette, Esq.
4 Kathryn M. Sutton, Esq.
5 of:
Morgan, Lewis & Bockius, LLP 6
1111 Pennsylvania Avenue, NW 7
Washington, DC 20004 8
9 Bobby Burchfield, Esq.
10 of:
McDermott, Will & Emery, LLP 11 600 13th Street, NW 12 Washington, DC 20005 13 14 On Behalf of the Nuclear Regulatory Commission 15 Anita Ghosh, Esq.
16 Brian Harris, Esq.
17 Sherwin Turk, Esq.
18 of:
U.S. Nuclear Regulatory Commission 19 Office of the General Counsel 20 Mail Stop O-15D21 21 Washington, DC 20555-0001 22 301-415-4126 23 24 25
4488 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 On Behalf of the State of New York 1
John J. Sipos, Esq.
2 Lisa Burianek, Esq.
3 The Capitol, State Street 4
Albany, NY 12224 5
6 Janice A. Dean, Esq.
7 Kathryn Liberatore, Esq.
8 Laura Heslin, Esq.
9 120 Broadway, 26th Floor 10 New York, NY 10271 11 12 On Behalf of Riverkeeper, Inc.
13 Deborah Brancato, Esq.
14 20 Secor Road 15 Ossining, NY 10562 16 17 On Behalf of Hudson River Sloop Clearwater, 18 Inc.
19 Karla Raimundi 20 724 Wolcott Avenue 21 Beacon, NY 12508 22 23 24 25
4489 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 P R O C E E D I N G S 1
1:03 p.m.
2 JUDGE McDADE: We will now go on the 3
record. We are here in the matter of Entergy Nuclear 4
Operations, Indian Point Nuclear Generating Units 2 5
and 3. Docket Nos. 50-247-LR and 286-LR. My name is 6
Lawrence McDade. I am here with judges Kennedy and 7
Wardwell.
8 For the record, can we go through who is 9
representing the NRC staff?
10 MR. TURK: Yes, Your Honor. Sherwin Turk 11 with Brian Harris and Anita Ghosh.
12 JUDGE MCDADE: For Entergy.
13 MR. BESSETTE: Yes, Your Honor. It's Paul 14 Bessette with Kathryn Sutton and Bobby Burchfield.
15 JUDGE MCDADE: For Riverkeeper.
16 MS. BRANCATO: Good afternoon, Your Honor.
17 This is Deborah Brancato for Riverkeeper.
18 JUDGE MCDADE: For New York State.
19 MR. SIPOS: Good afternoon, Your Honor.
20 This is John Sipos, and on the line are Assistant 21 Attorneys General Janet Dean, Kathryn Liberatore, 22 Laura Heslin and Lisa Burianek in addition to myself.
23 JUDGE MCDADE: And for Clearwater.
24 MS. RAIMUNDI: Good afternoon, Your Honor.
25
4490 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 This is Karla Raimundi for Clearwater.
1 JUDGE MCDADE: Okay. And before we go 2
further, just let me run down is there anyone on the 3
line from Connecticut, Westchester, New York City, 4
Cortland or Buchanan?
5 (No response.)
6 JUDGE MCDADE: Okay. Apparently not.
7 There were a number of administrative matters we 8
wanted to cover here today. The first one, let me go 9
through, has to do with the coastal management zone 10 issue.
11 We have before us cross-motions for a 12 declaratory order with regard to this. Our questions 13 and what we want to do is, first of all, ask Entergy 14 and then ask New York, the two moving parties here, 15 how a ruling by the ASLBP would move this proceeding 16 forward.
17 We currently have before us, as we 18 understand it, parallel proceedings. First of all, in 19 December, Entergy made a submission to the New York 20 State Department of State with regard to the 21 consistency review. That is pending and it's now 22 waiting for a
submission of a
Supplemental 23 Environmental Impact Statement.
24 Also in March of 2013, there was a suit 25
4491 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 filed in New York Supreme Court in Albany which seeks 1
to set aside the New York State Department of State's 2
denial of the declaratory request for declaratory 3
ruling that the Indian Point is not subject to a 4
consistency review.
5 Given the fact that there are those two 6
parallel proceedings ongoing, the first reaction of 7
the Board is that our decision would not be binding on 8
either the State Supreme Court in Albany, nor the New 9
York State Department of State, which would then be 10 appealed to the Department of Commerce if an adverse 11 ruling were sought to be appealed.
12 So, the question is first to Entergy, 13 given the fact that these two proceedings are ongoing 14 even if this board were to issue a ruling on the 15 Motion for Summary Disposition, how, in your view, 16 would that move this proceeding forward?
17 MR.
BURCHFIELD:
Let me answer the 18 question. This is Bobby Burchfield on behalf of 19 Entergy.
20 Can you hear me?
21 JUDGE MCDADE: Yes.
22 MR. BURCHFIELD: Let me answer that 23 question in two ways. In the first instance, a 24 favorable determination of this motion, a favorable 25
4492 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 decision for Entergy, would move the proceeding 1
forward in that it would obviate any necessity for a 2
consistency review under the CZMA. And, thus, clear 3
that obstacle for licensure - for license renewal for 4
Entergy. So, that's number one.
5 Number two -
6 JUDGE MCDADE: Mr. Burchfield, before you 7
go on in that regard, assume for the sake of argument 8
we did issue a ruling and we issued a favorable ruling 9
to Entergy. But, first instance, the Supreme Court in 10 Albany decided that a consistency review was necessary 11 and that the New York State Department of State ruled 12 that after conducting a consistency review, that their 13 standards had not been met.
14 How would our ruling impact that? Is it 15 your view then if the appeal went to the Department of 16 Commerce and the Department of Commerce ruled that the 17 consistency review was inadequate, that our decision 18 would overrule that of the Secretary of Commerce?
19 MR. BURCHFIELD: That's an excellent 20 question and I appreciate the opportunity to clarify 21 this, because this is critically important to the 22 entire Coastal Zone Management Act issue.
23 These proceedings, the one before - the 24 motion we had before your board and the motion we had 25
4493 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 before the New York Supreme Court and the consistency 1
certification, are all independent avenues toward 2
satisfying Entergy's requirement under the Coastal 3
Zone Management Act for clearing that hurdle prior to 4
5 Let me explain. As you know under the 6
Coastal Zone Management Act unless there is an 7
exemption or unless there has been a prior review, 8
coastal zone management certification and 9
authorization by the State is necessary, unless the 10 Secretary of Commerce sets aside the State's negative 11 determination.
12 Our position before this board is that New 13 York has done prior reviews. And, thus, under the 14 regulations by NOAA Section - 15 CFR Section 15 930.51(b)(3), this board has authority to determine if 16 a prior review has been conducted, notably the prior 17 review need not - it isn't specified it has to be a 18 federal prior review, it's, in our view, any prior 19 coastal zone consistency review - and that review is 20 sufficient unless the coastal zone effects that are 21 expected to result from relicensing are substantially 22 different than the effects previously reviewed.
23 So, before this board and the 24 regulations, we respectfully submit, are very plain 25
4494 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 that it is this board that has authority to make the 1
determination on that prior review issue, the prior 2
review substantially different effects issue. So, 3
that's number one.
4 With a favorable determination from this 5
board, the CZMA issues are dealt with and license 6
renewal proceedings can go forward.
7 With respect to the New York State 8
proceeding, in that proceeding, Entergy's position is 9
that these two facilities qualify for grandfathering 10 under the New York Coastal Management Plan, under the 11 terms of that plan.
12 That is an issue of State law, which is 13 within the ambit of the New York State court system.
14 And that issue is, thus, before the New York State 15 Supreme Court.
16 If that court were to rule in Entergy's 17 favor, that would mean that Entergy - that the two 18 plants, Indian Point Unit 2 and 3, are outside the 19 ambit of the New York Coastal Management Plan. And, 20 thus, the consistency - the Coastal Zone Management 21 requirement would be fulfilled that way, but they are 22 not covered by the plan.
23 And then, thirdly, as a matter of 24 protecting Entergy's interests, it did, as you've 25
4495 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 noted, it did, Mr. Chairman, file in December a 1
Consistency Certification, an extensive Consistency 2
Certification.
3 And in the event these other avenues are 4
not - or Entergy does not achieve favorable results on 5
one of these other two avenues, then that Consistency 6
Certification will be before the New York Department 7
of State for normal review as a Consistency 8
Certification subject to appeal to the Secretary of 9
Commerce and any judicial review after that.
10 So, they are three independent reviews.
11 Either one of which would be sufficient, in Entergy's 12 view, to satisfy the Coastal Zone Management Act 13 requirement. And I'll stop and ask if you have any 14 further questions on that.
15 JUDGE MCDADE: Well, let's go through it 16 piecemeal. First of all, the question is whether or 17 not a consistency review is necessary.
18 All right. It is the position of Entergy 19 that one is not, because it has already been 20 conducted, but the New York State Department of State 21 has determined that a consistency review is necessary.
22 That's pending with the State Supreme 23 Court. They will either rule that the Department of 24 State acted consistent with New York law or not, 25
4496 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 correct?
1 MR.
BURCHFIELD:
That is on the 2
grandfathering
- issue, Mr.
Chairman. The 3
grandfathering issue is not an issue that we have 4
brought before this board because it is an issue of 5
State law. It's a different issue than the issue we 6
have brought before this board.
7 JUDGE MCDADE: If the State Supreme Court 8
determines that the New York State Department of State 9
acted properly consistent with New York law, then the 10 Department of State would continue to go ahead with 11 its consistency review.
12 MR. BURCHFIELD: That is correct, unless 13 this board were to rule on our motion that we have 14 pending before this board that there had been prior 15 reviews that obviate the necessity for a further 16 consistency review.
17 And that is an issue posed by the federal 18 regulations within the jurisdiction of the federal 19 licensing agency, that is to say, this board.
20 JUDGE MCDADE: Assuming for the sake of 21 argument we were to rule. That would not preclude the 22 New York State Department of State from continuing 23 with its consistency review, correct?
24 MR. BURCHFIELD: Well -
25
4497 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 JUDGE MCDADE: We have no authority to 1
direct them.
2 MR. BURCHFIELD: The New York Department of 3
State could continue with their consistency review, 4
but it would no longer be a requirement for license 5
renewal.
6 Under the federal Coastal Zone Management 7
regulations, a consistency review is required only if 8
there has not been a prior consistency review.
9 So, if this board were to rule in our 10 favor on the motion, then it will have - then for 11 purposes of this licensing proceeding Entergy will be 12 deemed as a matter of federal law to be in compliance 13 with the Coastal Zone Management Act.
14 JUDGE MCDADE: Okay. Under the statute as 15 I understand it, any determination by the NRC needs to 16 be done after consultation with the State and giving 17 great weight to the State's opinion.
18 MR. BURCHFIELD: That is correct. That is 19 correct, Mr. Chairman.
20 JUDGE MCDADE: And we have the authority to 21 move forward given the fact that that consultation 22 requirement has not yet been met neither by this board 23 nor by the NRC staff.
24 In their filing, they specifically noted 25
4498 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 that they had not conducted a consultation with the 1
State. All we have from the State is one without a 2
specific consultation.
3 From the State, we have that in the view 4
of the single state agency who is directed to 5
administer the Coastal Management Act, that they 6
believe a consistency review is necessary that there 7
is a potential to effect coastal use or resources 8
different from that which was previously reviewed.
9 They're undertaking that consistency 10 review without a consultation with the State. And, 11 you know, again given the fact that we're supposed to 12 give great weight, if not deference to State's 13 opinion, can we rule?
14 MR. BURCHFIELD: Well, that's an excellent 15 question, Mr. Chairman. And, in fact, Entergy is 16 prepared today to propose in light of the statements, 17 the regulation you referred to which is Section 18 951(e), I believe, that we enter the consultation 19 process.
20 And I would know that in the briefs filed 21 both by New York State and by the staff, both have 22 noted that consultation requirement. And as I read 23 their papers, they can speak for themselves, they are 24 amenable to the consultation.
25
4499 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 So, Entergy is ready, willing and able to 1
go into that consultation noting that as we have in 2
our papers, noting that while the State's views on the 3
issues are entitled to weight, the regulatory - the 4
terms of the regulation and the regulatory history in 5
particular make very clear that it is the licensing 6
agency's determination, not the State's determination, 7
of whether a previous review of these coastal zone 8
effects has been conducted.
9 JUDGE MCDADE: Okay. But given what you 10 just said, isn't the consultation between the NRC and 11 the State, not between Entergy and the State, doesn't 12 that - would not we have to wait until the NRC staff 13 has completed the anticipated consultation, and then 14 they give great weight in making a recommendation to 15 us before we can rule?
16 My question is, given the way the 17 regulation is written, don't we need to defer until 18 not Entergy, but the NRC staff completes that 19 consultation requirement?
20 MR. BURCHFIELD: Well, almost correct, with 21 all due respect. Let me read to you the regulation 22 which is 930.51(e).
23 It
- says, the determination of 24 substantially different coastal effects under 25
4500 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 Paragraph (b)(3), which is what we rely on, and (c) of 1
this section, is made on a case-by-case basis by the 2
federal agency after consulting with the State agency 3
and applicant.
4 So, it is a tripartite consultation 5
process during which the State's views are entitled to 6
weight, no question about that, but they're not 7
entitled to determinative weight. And the decision is 8
to be made by the federal agency.
9 And so, against that background -
10 JUDGE MCDADE: But the remainder of that 11 particular section says that the agency shall give 12 considerable weight to the opinion of the State 13 agency.
14 MR. BURCHFIELD: Correct.
15 JUDGE MCDADE: And that the federal agency 16 shall do this after consulting with the State agency 17 and the applicant.
18 MR. BURCHFIELD: Correct.
19 JUDGE MCDADE: What my question to you is, 20 given the wording, isn't it necessary for the NRC 21 staff to engage in a consultation with Entergy and the 22 State of New York and then - and again giving great 23 weight, I believe is the language used in the 24 regulation, giving great weight to the view of the 25
4501 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 State, make the decision?
1 At this point, we don't have a specific 2
statement from the State. Sort of derivatively we can 3
make a view that the State feels that there is the 4
need for a consistency review, that using the language 5
of the regulation substantially different is to be 6
construed very broadly to ensure that the State has an 7
opportunity to review activities and coastal effects 8
not previously reviewed.
9 So, why would it not be premature for us 10 to act until that consultation process is completed 11 and the agency has the benefit of that input from the 12 State?
13 Wouldn't we be going forward with a very 14 incomplete record at this point in time?
15 MR. BURCHFIELD: Mr. Chairman, I am in 16 violent agreement with you. That is exactly correct.
17 And that is exactly what Entergy was prepared to 18 propose today.
19 And I would quibble a bit with some of 20 your descriptors in your last statement, but the 21 bottom line is Entergy is in full agreement that a 22 consultation process, a tripartite consultation 23 process among the staff, the State and Entergy is 24 timely and appropriate at this point in time before 25
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 the Board addresses the motion.
1 JUDGE MCDADE: From the standpoint of New 2
York, do you have anything to add?
3 MS. BURIANEK: Well, Judge, I think -
4 JUDGE MCDADE: Who is this?
5 MS. BURIANEK: This is Lisa Burianek from 6
Albany.
7 JUDGE MCDADE: Okay.
8 MS. BURIANEK: I think your sense of 9
whether or not a decision at this point would add 10 anything to the process is exactly correct. It would 11 not.
12 Entergy has put the cart before the horse 13 in large part here. Their ask in the declaratory 14 ruling goes well beyond the NRC's authority to 15 determine the coastal effects here.
16 The State has been very clear. There has 17 been no state agency as that term is set forth in the 18 statute in the regulations, no state agency review.
19 And the state agency who must do the review for 20 federal consistency is the New York State Department 21 of State.
22 The general counsel has submitted 23 materials saying that they have not done the review.
24 Our responses to Entergy's motion or request for 25
4503 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 declaratory ruling have made that clear as well.
1 The question that Entergy is essentially 2
asking the Board to determine is whether review by 3
agencies other than the designated state agencies, 4
whether that review that may have gone on at the time 5
of the license transfer, whether that review is 6
sufficient for purposes of satisfying the NRC's and 7
the applicant's obligations under the Coastal Zone 8
Management Act.
9 We say it's not. There aren't any 10 decisions that we could find relating to NOAA 11 construction of the statute.
12 Respectfully, the NRC should not be 13 construing a programmatic question that goes to the 14 fundamental elements of the Coastal Zone Management 15 Act.
16 You don't have to go there in this context 17 given the timing and the procedural posture. We 18 respectfully submit that it is unnecessary to go there 19 at this time.
20 JUDGE MCDADE: Okay. With regard to the 21 documents submitted by Entergy about the prior review, 22 is it the position of New York State that it is 23 necessary for us to wait for State determination?
24 For example, assuming there had been a 25
4504 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 prior consistency review that was adequate back before 1
the transfer which was in, I believe, 1990s, 1999, 2
that the State Department of State would have to make 3
a determination as to whether or not an effect on 4
coastal use or resources different from that 5
previously reviewed has occurred during the preceding 6
15 years even if they viewed the previous consistency 7
review to be adequate at that time?
8 MS. BURIANEK: Judge, I think that Entergy 9
could certainly raise that in the consistency 10 certification that they've made. That process has 11 been commenced as of December.
12 Their remedy, you know, depending on what 13 result comes out of the Department of State, would be 14 to go to the Secretary of Commerce.
15 In this case, again, the Board does not 16 need to address this particular question. It should 17 wait for the process to proceed in an orderly fashion.
18 JUDGE MCDADE: Assume for the sake of 19 argument the DOS completes its consistency review.
20 The review is adverse to Entergy. Entergy appeals it 21 to the Department of Commerce. The Department of 22 Commerce agrees with the New York State Department of 23 State.
24 Would this board have the authority to 25
4505 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 rule contrary to the Secretary of Commerce?
1 MS. BURIANEK: No, Judge. And at that 2
point in time if there is an injury, a party's remedy 3
would be to go to the federal courts.
4 JUDGE MCDADE: Okay. And am I correct that 5
it's Entergy's view that under Subsection E, the 6
federal agency is the NRC? So, ultimately it would be 7
our determination, not the secretary of commerce's 8
determination.
9 Is that the Entergy position?
10 MR. BURCHFIELD: That is correct, Mr.
11 Chairman.
12 JUDGE MCDADE: What is the position of the 13 NRC staff on this? Mr. Turk, is this right for review 14 by the Board at this time in decision, or do we need 15 to wait until after there's been a tri-party 16 consultation and we get the official views of the 17 State of New York to give great weight to?
18 MR. TURK: Your Honor, as you know, from 19 reading our responses to Entergy's motion and New 20 York's cross-motion, our view is that there has been 21 no consultation. That consultation is required under 22 15 CFR Section 930.51(e). And, therefore, the Board 23 cannot rule in favor of either motion.
24 Our position is that the motion should 25
4506 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 therefore be denied for that reason, as well as other 1
reasons discussed in our papers.
2 JUDGE MCDADE: Okay. The other question I 3
have, Mr. Turk, is this, and the question I had just 4
posed to the State of New York: Assume for the sake of 5
argument the hypothetical. The Department of State 6
completes its consistency review. It rules adverse to 7
Entergy. Entergy appeals the Secretary of Commerce.
8 The Secretary of Commerce upholds the decision of New 9
York DOS.
10 Would it be within the authority of this 11 board for the Agency to determine that the 12 requirements have been met, or would we be bound by 13 the decisions of New York DOS and the Secretary of 14 Commerce?
15 MR. TURK: As I understand the papers that 16 have been filed by Entergy with New York in their 17 current attempts to obtain a consistency review, I 18 believe they have argued that there was a prior 19 consistency review and that further review is, 20 therefore, foreclosed.
21 My understanding is that they do not raise 22 the issue and instead say that, here, our operations 23 are consistent with the New York Coastal Management 24 Program.
25
4507 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 If I'm wrong, I would ask Entergy to 1
correct me. But based on that understanding, I think 2
you're being asked, Your Honor, to decide a different 3
issue. And that is whether there was a prior review 4
that would it be binding on current - or that would 5
effect current operations so that I think that the 6
issue you're being asked to decide is independent of 7
the issue that the New York State Department of State 8
is being asked to decide.
9 The Department of Commerce ultimately 10 would review both the Commission's decision if one is 11 reached, as well as a New York State decision on the 12 current consistency review application.
13 JUDGE MCDADE: Okay. Mr. Turk, correct me 14 if I'm wrong or if your belief is different than mine.
15 The Department of State has already ruled, had made a 16 determination that there has not been a binding prior 17 review that Entergy asked them to do, so they 18 determined adverse to Entergy and said that a new 19 consistency review is necessary given, you know, the 20 changes that have occurred in the last 15 years. And 21 that's the matter that is currently pending before the 22 Supreme Court in Albany that there's sort of a two-23 step process.
24 One is, is a consistency review necessary?
25
4508 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 And then once that consistency review is completed, is 1
there anything that is contrary to the Coastal Zone 2
Management Act? So, it's sort of a two-step.
3 Mr. Turk, what, in your view, is the 4
Board's role in either of those two steps?
5 MR. TURK: Your Honor, my -
6 JUDGE MCDADE: Is it your opinion we only 7
have a role in the first one whether or not there 8
needs to be a consistency review? And if we make that 9
determination, does that end the role of the NRC?
10 MR. TURK: I do not believe so, Your Honor.
11 My understanding of the issue before the courts 12 currently in New York is whether the Indian Point 13 plants are grandfathered under the Coastal Zone - I'm 14 sorry - under the New York Coastal Management Program 15 as if there need never be a consistency review.
16 That is the issue that I believe was 17 presented to the Department of State and that is now 18 under review in the court.
19 A different question is whether a review 20 has occurred previously. And that's the question that 21 this board is being asked to decide.
22 JUDGE MCDADE: Okay. And if we determine 23 that a review is necessary, does that end our role, or 24 do we then have to make a ruling as to whether or not 25
4509 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 the review having been conducted is adequate and 1
whether or not there is consistency with the Coastal 2
Zone Management Act provisions?
3 MR. TURK: I do not understand that you are 4
asked to decide whether the review has been adequate.
5 Your decision is simply a decision as to whether or 6
not the previous review considered the operations of 7
Indian Point's Units 2 and 3 such that no further 8
review need be conducted.
9 JUDGE MCDADE: Based on the motion before 10 us.
11 MR. TURK: Yes.
12 JUDGE MCDADE: Okay. Entergy, do you agree 13 with Mr. Turk?
14 MR. BURCHFIELD: We do agree with Mr. Turk 15 in this respect - in two respects. The first is that 16 the motion that was submitted to the Department of 17 State and that is now in the New York courts relates 18 to the issue of grandfathering under the precise terms 19 of the New York Coastal Management Plan.
20 The issue before this board as Mr. Turk 21 has noted and we agree with it, is different. It is 22 whether there has been a prior consistency review as 23 to which - that considered the Coastal Zone effects 24 that these plants are likely to confidence.
25
4510 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 We part company with our friends in New 1
York, because we believe that it is not necessary 2
under the regulation that the consistency review be 3
conducted for a
federal
- project, because the 4
regulation doesn't specify that it has to be a federal 5
consistency review.
6 It says a
consistency review that 7
considered the coastal zone effects at issue here. It 8
is not necessary to be a federal consistency review.
9 Where we depart from Mr. Turk's statement 10 is we do not believe dismissal is appropriate. We 11 believe that the consultation process can move forward 12 at this point in time while the Board holds in 13 abeyance the motion as briefed pending a report back 14 from the staff as to the outcome of the consultation 15 giving the appropriate weight to New York's views.
16 JUDGE MCDADE: But ultimately if this board 17 were to determine that a consistency review is 18 necessary, would that end our role, or would we then 19 have a further role to determine whether or not that 20 review allows this matter to go forward, allows the 21 license to issue?
22 MR. BURCHFIELD: Well, if this board were 23 to determine that there was a prior consistency review 24 that considered the coastal zone effects at issue, 25
4511 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 then the Board's role would be at an end and Entergy's 1
requirement for a consistency review would be at an 2
end had it - Entergy having already demonstrated a 3
consistency review.
4 So, there is no requirement under the 5
regulations, nor do we believe it prudent, nor is 6
Entergy advocating that this board engage in the 7
action of a consistency review of these plants under 8
the State Coastal Management Plan. That is not what 9
we're asking and we think that would not be 10 appropriate.
11 JUDGE MCDADE:
And what would be 12 appropriate, then, is for that to go through the 13 procedure with the State Department of State reviewed 14 by NOAA for the Secretary of Commerce.
15 MR. BURCHFIELD: If this board were to 16 determine that there has not been a prior consistency 17 review, then that would mean Entergy would need to 18 fulfill the consistency - the Coastal Zone Management 19 requirement in another way.
20 One of those other ways would be to go 21 through the consistency process before NYS DOS with 22 appeal to the Secretary of Commerce and then perhaps 23 beyond to judicial review.
24 JUDGE MCDADE: But that this board would 25
4512 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 have no further role.
1 MR. BURCHFIELD: That would be correct 2
other than to await the outcome of one of those other 3
avenues for fulfilling the Coastal Zone Management 4
Act.
5 JUDGE MCDADE: Okay, thank you. Does New 6
York have anything to add on this?
7 MS. BURIANEK: Judge, let me just repeat 8
that we - there is a process for this review to occur 9
and what Entergy is asking for from the Board goes 10 beyond what the Board's authority is. Under the 11 Coastal Management regulations, you don't need to go 12 there.
13 And I'm sure that were the Board or the 14 staff to have particular questions about the 15 applicability of prior reviews that were done in the 16 context of state consistency, the Board could address 17 its questions to NOAA as well.
18 And the regulations also provide for 19 parties when there is a substantial dispute, to seek 20 the read of NOAA.
21 So, I don't even think we have to go there 22 at this point in time. And for the purposes of this -
23 or the competing motions, the State maintains there 24 has been no state agency review and you don't even get 25
4513 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 to all the other bases for board jurisdiction.
1 JUDGE MCDADE: Okay, thank you. Does the 2
staff have anything further on this issue?
3 MR. TURK: Just two small points, Your 4
Honor. The first, I agree with Mr. Burchfield that 5
the Board has no role in deciding whether or not the 6
effects of operation are consistent with the New York 7
Coastal Management program.
8 If the Board decides that there has been 9
no prior consistency review that embraces the 10 operations of Units 2 and 3, then the issue goes to 11 New York State through the Department of State to 12 process to decide whether the effects of operation are 13 consistent with the New York State program.
14 JUDGE MCDADE: Then it would be your 15 position, then, that the Board and the NRC would be 16 bound by the result of that having been reviewed by 17 the Secretary of Commerce.
18 MR. TURK: That we would be bound by a 19 determination whether the effects of operation are 20 consistent with the New York program, yes.
21 JUDGE MCDADE: Okay.
22 MR. TURK: But let me point out I do agree 23 with Mr. Burchfield that it is a federal decision. It 24 is our decision in this agency to decide whether there 25
4514 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 has been a prior review. That is not a New York State 1
issue.
2 The NRC would make that decision following 3
consultations with New York State and the applicant.
4 JUDGE MCDADE: Okay. Thank you, Mr. Turk.
5 MR. TURK: I have one second point that I 6
just want to put on the record, Your Honor. It's my 7
understanding that the New York Department of State is 8
not participating in this telephone conference call.
9 So, we do not have a position from the New York 10 Department of State.
11 We are hearing argument by the New York 12 attorney generals. It's not clear to me that they are 13 representing the Department of State here or 14 representing the New York Attorney General's office.
15 JUDGE MCDADE: The New York Department of 16 State isn't a party to this proceeding. The State of 17 New York is through the Attorney General's office, and 18 they are here and they have spoken for the State of 19 New York.
20 And, again, the Department of State 21 specifically isn't a party. And, therefore, at least 22 in my view, it wouldn't be appropriate for them to 23 participate in this particular hearing at this time.
24 Now, as you indicated - well, let me just 25
4515 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 end there. What I'd like to do is move on to 1
something else.
2 Specifically, we had recently revisions 3
recently in May to various SAMA analysis. And these 4
changes/additions to the SAMA analysis are relevant to 5
NEPA issues.
6 And the question we have as this impacts 7
both New York 16 and also New York 35/36, potentially 8
impact other contentions as well, the first question 9
I'm going to address to the NRC staff is, do we have 10 anything currently before us ripe for any kind of 11 adjudication until the NRC staff incorporates these 12 new submissions relevant to a NEPA issue into a 13 supplement to the Environmental Impact Statement?
14 Mr. Turk.
15 MR. TURK: There are several parts to that 16 question, Your Honor. Let me see if I can parse them 17 out.
18 The staff, first of all, has not yet 19 reviewed the new information that Entergy submitted.
20 We have decided, however, that we will review the 21 information.
22 We don't know yet whether that information 23 is new and significant such that it would trigger the 24 issuance of an F-SEIS supplement.
25
4516 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 If the staff upon completing its review of 1
the information decides that it's new and significant, 2
then we would undertake to supplement the EIS.
3 JUDGE MCDADE: Well, let me go back. In 4
the event that the staff doesn't determine that it's 5
new and significant, then doesn't our ruling on New 6
York 35 and 36 end and decide that the license cannot 7
issue?
8 Unless these supplements are new and -
9 provide new and significant information, doesn't that 10 ruling of 35 and 36 preclude the license issuing 11 unless the Commission were to overrule our decision?
12 MR. TURK: I don't know that you need a 13 staff EIS to reopen, Your Honor. Your decision is 14 binding currently. There is nothing before you on 35 15 and 36 that would cause you to reopen that. No party 16 has moved to reopen it.
17 Theoretically, though, a party could move 18 to reopen even before an F-SEIS supplement comes out 19 if one was to be issued. And the party would argue to 20 that this is significant in terms of your ruling such 21 that you should give further consideration to 22 summation.
23 Now, that's not dependent on the staff's 24 decision whether to issue an F-SEIS supplement, but 25
4517 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 dependent upon a motion to reopen, and none has been 1
filed on 35/36.
2 JUDGE MCDADE: But is it the staff's 3
position that in the event there is - if the staff 4
were to determine that there is nothing new and 5
significant in this information, that given the 6
Board's ruling on 35/36 that a license could not 7
issue?
8 (Pause in the proceedings.)
9 MR. TURK: Your Honor, I'm hesitating to 10 answer because our position on 35/36 is that we don't 11 need the cost estimate information to decide that the 12 treatment of SAMA has been adequate.
13 So, our decision in the past has been we 14 don't need this information at all, because we had 15 enough information.
16 So, it's the Board's decision that it puts 17 into importance the receipt of this engineering 18 project cost information.
19 JUDGE MCDADE: I understand, Mr. Turk, but 20 the Board has made a ruling. And the question is, is 21 the staff in agreement that given the Board's ruling 22 that unless there was a determination made that this 23 was new and significant information, that the license 24 could not issue unless the Commission were to overrule 25
4518 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 the Board's decision to grant summary disposition on 1
35/36?
2 Does the staff agree with that proposition 3
as a hypothesis?
4 MR. TURK: I agree with everything except 5
your use of the term "new and significant 6
information." Because in our NEPA space, that's a 7
different determination from the determination whether 8
the Board's decision is effected by this new 9
information.
10 JUDGE MCDADE: Okay.
11 MR.
TURK:
We certainly have new 12 information. Whether it's qualified as significant 13 under the staff's assessment under NEPA is a different 14 question.
15 JUDGE MCDADE: Okay. Let's go back a 16 second. You indicated that you have received the view 17 that the NRC staff speaking broadly here, that it's 18 under review, there's no determination made yet as to 19 whether or not a supplement to the EIS will issue 20 addressing this new NEPA information.
21 Can you give us an estimate as to when 22 that decision will be made?
23 MR. TURK: I don't have a date, Your Honor.
24 It will be near term, but I do not have a date that I 25
4519 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 can commit to.
1 JUDGE MCDADE: Okay. The next question is 2
with regard to New York 16(b). I mean, the 3
information submitted by Entergy specifically was 4
designed to address issues raised in 35/36. But 5
according to New York, it also impacts issues under 6
16(b).
7 Given the fact that this has not been 8
subject to review by the NRC staff at this time, in 9
the staff's view is it appropriate for us to consider 10 that information in issuing a decision on 16(b), or 11 should we wait until the staff makes that kind of a 12 determination if -
13 MR. HARRIS: Your Honor, this is Brian 14 Harris for the NRC. I think it would be appropriate 15 for the Board to rule on the issues on 16(b) in terms 16 of what's before it.
17 If you, as we argued, you know, in terms 18 of New York's motion to supplement, is that the effect 19 of New York's - Entergy's submission, you know, and 20 New York's argument is to end up at the same points 21 that the EIS currently indicates is that all those six 22 SAMAs, particularly SAMA - Indian Point 2 SAMA 21 and 23 53 in the staff's EIS are determined to be potentially 24 cost beneficial.
25
4520 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 So, it wouldn't change the issue that's 1
before the Board whether or not the population 2
estimate would have any material impact on the staff 3
analysis.
4 JUDGE WARDWELL: This is Judge Wardwell.
5 But that was - that's only fortuitous because you 6
differed from what Entergy had postulated when it 7
submitted those older numbers; is that not correct?
8 They considered them not cost beneficial 9
and you determined them to be using those previous 10 numbers; isn't that correct?
11 MR. HARRIS: Well, based on their recent 12 submission, Entergy's analysis is -
13 JUDGE WARDWELL: Let's just stay with when 14 you made that decision before these numbers came out.
15 That was - your position was different than what 16 Entergy's were on those two SAMAs; is that correct?
17 MR. HARRIS: In their original submission -
18 Judge Wardwell, I'm not sure I understand the 19 question, because the point where Entergy determined 20 that they weren't cost beneficial is in the most 21 recent submission.
22 JUDGE WARDWELL: Correct.
23 MR. HARRIS: So, before that, Entergy's 24 determination of what was cost beneficial was the same 25
4521 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 as what the staff reflected. So, maybe I'm 1
misunderstanding the question.
2 JUDGE WARDWELL: I guess where I was going 3
with this question is the fact that things change as 4
the numbers change.
5 And as I look over these numbers, there's 6
been a significant change in the numbers or certainly 7
a quantifiable change.
8 In fact, they vary by an average of 62 9
percent difference in values. And your position may 10 very well change upon seeing these; isn't that 11 correct?
12 MR. HARRIS: That is a possibility, Your 13 Honor, that it might change. But the, you know, the 14 issue at least before the Board is what were the 15 staff's findings in terms of EIS?
16 So, the issue is the EIS, not what Entergy 17 has submitted post, you know, after the final - after 18 the Environmental Impact Statement was produced.
19 Should the staff go through its review and 20 change this, then that would be, you know, potentially 21 an opportunity for new contentions. Though, at this 22 point, they would probably be late since Entergy 23 submitted these, you know, significantly, you know, 30 24 plus days ago.
25
4522 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 JUDGE MCDADE: This is Judge McDade again.
1 As I understand what you're saying as is the staff's 2
position, we should go ahead and rule on 16(b) based 3
on the evidence that we had at the time of the hearing 4
that this new information submitted in May by Entergy 5
should not enter into our ruling on 16(b) at all.
6 That if at some time in the future the 7
staff were to address this in an EIS, that that could 8
serve as a trigger for the final, new or amended 9
contentions.
10 That's the staff's position?
11 MR. HARRIS: That is true. But, you know, 12 it's not just the change. Petitioners are - our 13 interveners are obligated to file a new and amended 14 contention based on the information as it becomes 15 available.
16 So, to the extent that they wanted to 17 challenge these costs, I think that they would have 18 already had to raise that issue with the Board. But 19 in principle, I agree.
20 JUDGE MCDADE: Even though the staff has 21 not made any kind of a review, it wouldn't be 22 premature for New York to file an amended contention 23 unless and until it was aware that the staff would 24 view this information as relevant, as new material?
25
4523 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 I mean, one of the things, you know, as 1
we've gone through this, we have all of these 2
contentions. None of the contentions is original, 3
hardly. We have A and B, C and D as we keep moving 4
down the line.
5 Is it the staff's position, then, that New 6
York should have filed an amended contention just 7
based on this raw data before any staff review without 8
knowing how the NRC would view its significance, if at 9
all?
10 MR. HARRIS: Well, that's the obligation 11 that interveners have at the beginning and for every 12 supplement, you know. Any supplement that Entergy 13 would have submitted was to file those contentions as 14 they become available, the information becomes 15 available.
16 JUDGE MCDADE: Wouldn't prior board orders 17 where in the post-hearing we have advised parties to 18 hold off filing new and amended contentions pending 19 submission of revised safety evaluation reports and 20 environmental impact statements serve as a basis for 21 New York to use the filing of an EIS, supplement to 22 the EIS as the trigger rather than the filing or the 23 submission of this information by Entergy?
24 MR. HARRIS: That is a possibility. I 25
4524 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 believe, though, that - and I could be misremembering, 1
but I believe at least with the EIS supplement, that 2
it was specifically directed to those changes related 3
to the impacts on endangered species as I believe that 4
was the only one that was mentioned in the order.
5 JUDGE MCDADE: Well, we had an issue with 6
regard to the supplemental environmental impact 7
statement on Riverkeeper 8, but also the supplemental 8
safety evaluation reports implicating 25 and 38 in 9
Riverkeeper TC 5. But, anyway, I think I understand 10 what the NRC's position is.
11 New York, what's your view? At this 12 point, is it, in New York's view, premature for us to 13 consider this new information in ruling on 16(b), or 14 should we rule on what was submitted at the hearing 15 and wait unless and until this is incorporated into a 16 supplement to the SER for us to get involved with this 17 data?
18 MR. SIPOS: Your Honor, this is John Sipos 19 in Albany. My colleagues in New York are going to 20 respond to questions on this issue. But at the 21 outset, I would just note that it would not be 22 premature with respect to contention NYS 16(b).
23 And I'm going to turn it over to Ms.
24 Liberatore and Ms. Heslin in New York, but I also have 25
4525 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 a comment I'd like to come back to at 35 and 36, New 1
York's - Contention New York 35 and 36 issue when 2
they're done.
3 JUDGE MCDADE: Okay.
4 MS. LIBERATORE: Your Honor, this is 5
Kathryn Liberatore for the State of New York. And 6
with respect to 16(b), it's the State's position that 7
these revised SAMA cost benefits conclusions that 8
Entergy has presented in Table 1 of NL-13-075 are 9
relevant only to Entergy's arguments regarding the 10 materiality of contention 16(b).
11 So, the State is only offering this 12 information to rebut Entergy's materiality argument on 13 NYS 16(b). That materiality argument has also been 14 adopted by NRC staff.
15 We haven't got into the substance of 16 whether Entergy's revised calculations in that 17 document are correct or not correct or should be the 18 subject of the contention or should not be the subject 19 of the contention.
20 It's important to know at this point, NL-21 13-075 is not an amendment to Entergy's environmental 22 report, but it does represent a position that Entergy 23 is advocating that six SAMAs are no longer cost 24 beneficial.
25
4526 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 And with all due respect to NRC staff, the 1
Board did rule in the context of summary disposition 2
on 35 and 36 that the SAMA cost benefit conclusions 3
are incomplete and unreasonable under NEPA.
4 So, the cost benefit conclusions as they 5
stand right now in the December 2010 F-SEIS are 6
sufficient. And Entergy is now advocating a position 7
that six of those SAMAs should no longer be deemed 8
cost beneficial.
9 And as we set out in those papers, two of 10 those SAMAs, IP SAMA 2021 and IP 2 SAMA 053 have small 11 margins between the cost and benefits such that the 12 population deficiencies outlined in NYS 16(b) would be 13 material to those SAMA cost benefit conclusions.
14 So, this is relevant and material. It's 15 essentially an admission by Entergy that the 16 population deficiencies that are in NYS 16(b) are 17 actually material to the contention.
18 So, while there may be issues regarding 19 compliance with 36 and 36 and, you know, there may be 20 other issues regarding, you
- know, staff 21 recommendations and a future F-SEIS supplement whether 22 to, you know, require implementation of any SAMAs with 23 respect to NYS 16(b) this is a very - a very narrow 24 issue that the Board can consider in the context of 25
4527 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 the State's proposed findings.
1 JUDGE MCDADE: Okay. Entergy, what's your 2
view on that? Mr. Sipos, we'll come back to you with 3
regard to 35 and 36 in a little bit. But, first of 4
all, Entergy, what's your response?
5 MR. BURCHFIELD: Well, Your Honor, there 6
were several matters discussed, but I think I'll start 7
with 16(b).
8 As we noted in our response, the issue 9
that New York raises, the Board doesn't even have to 10 reach that. We've had several arguments that precede 11 that regarding the invalidity of their commuter and 12 census undercount arguments.
13 So, if the Board reaches those decisions, 14 the issue of materiality that Ms. Liberatore was 15 raising doesn't have to be reached.
16 So, again, New York's argument on this, 17 you can only reach that if you agree 100 percent with 18 all of New York's arguments on 16(b), which we believe 19 are invalid.
20 Second, the fact that she is stating that 21 we have admitted something is clearly not the case 22 here.
23 We have, as Your Honor has noted, we have 24 made our submission in response to the Board's order.
25
4528 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 And with that, we believe there are supported - well-1 supported bases for those decisions. But, you know, 2
the staff does have - excuse me, Your Honor, the staff 3
has to take some action for the Board's response to 4
that.
5 Whether it's in the form of an F-SEIS 6
supplement or some other response, we believe that 7
they have to review that before the Board should 8
address that as part of 16(b).
9 With regard to the need for an F-SEIS 10 supplement, we would note that 5192 says that the 11 staff may prepare a supplement to the final 12 environmental impact statement when its opinion 13 preparation of a supplement will further the purposes 14 of NEPA.
15 So, it's not just new and significant, 16 Your Honor. There is an option to include an F-SEIS 17 supplement for matters like this.
18 And I know it doesn't need to be said, but 19 there is always the matter of commission appeal of 20 this issue. We understand the Board's order, but 21 there is also the potential for commission appeal.
22 JUDGE MCDADE: Okay, thank you.
23 MR. TURK: I'm sorry, this is Sherwin Turk.
24 May I ask a clarification, Your Honor?
25
4529 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 JUDGE MCDADE: I don't know.
1 MR. TURK: I heard Mr. Bessette say that 2
the staff must address the new information before the 3
Board can rule on Contention 16(b).
4 Was that a misstatement? Did he mean to 5
say 35/36?
6 MR. BURCHFIELD: Yes. Where we believe -
7 the Board could rule appropriately on 16(b) now based 8
on what we have.
9 Independent of this materiality issue, 10 there are many other arguments that could be made that 11
- threshold arguments that we could be reached.
12 And based on the fact that we have 13 submitted these cost estimates, but they are not 14 reviewed by the staff, the Board can take that and 15 rule on 16(b) and dismiss it as we believe it should 16 be.
17 CHAIR MCDADE: Okay. So, it's your 18 position that based on the arguments made back at the 19 hearing, we don't need to reach whether or not this 20 information is material, that we could rule against 21 New York based on the information submitted relevant 22 to the adequacy and accuracy of the population 23 contentions, period.
24 That's Entergy's position, correct?
25
4530 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 MR. BURCHFIELD: Yes, Your Honor.
1 JUDGE MCDADE: Okay. Mr. Sipos, you had 2
something further?
3 MR. SIPOS: Yes, I did. And based on what 4
Mr. Turk and Mr. Bessette have said, I have more than 5
one thing to say.
6 First of all, until and unless the - this 7
goes to Mr. Harris' comment regarding timeliness. I 8
should preface that.
9 But unless and until the December 2010 10 staff F-SEIS is amended, there really would be no 11 reason for the State to file a contention, because the 12 SAMA issues on 35 and 36 have been resolved by this 13 board's July 14, 2011 summary disposition ruling. So, 14 that would be the State's response to Mr. Harris' and 15 the staff's position there.
16 With respect - also, I guess I should also 17 note that the material - this goes back to 16(b) now 18 and what Mr. Bessette and Mr. Turk have just been 19 discussing. That letter, the letter NL-13-075 from 20 Entergy, the Entergy communication to staff, was 21 submitted to the Board without any operative motion or 22 request for board action and the State responded 23 promptly with respect to contention New York State 24 16(b). So, you know, that is - I think that should 25
4531 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 also be noted.
1 And, again, just coming back to the issue 2
of Contention New York 35 and 36, this board has 3
spoken on that and that is the law of the case for the 4
parties and at least that is how the State understands 5
it.
6 JUDGE MCDADE: Okay. Thank you, Mr. Sipos.
7 The next issue we wanted to address in its most recent 8
submission on June 3rd, the staff suggested that it 9
would be appropriate to hold in abeyance a hearing on 10 New York 25, 26, 38 - and 26 also incorporates 11 Riverkeeper TC 1, and 38, Riverkeeper TC 5 - that we 12 should not go forward with a hearing until the 13 supplement to the State's evaluation report issues.
14 Is there any disagreement with that 15 proposition from New York?
16 MR. SIPOS: No, Your Honor. New York 17 believes it would be not only appropriate, but it 18 would contribute to the efficient litigation and 19 presentation of evidence if those matters were 20 deferred.
21 There's been a - that document - that 22 report will be important and inform the State's 23 approach. And there has been a passage of time since 24 the State initially submitted its opening papers on 25 25
4532 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 back in December of 2011.
1 And also on 26 and 38 as well where both -
2 where three parties have also - three parties in total 3
have put submissions in.
4 So, the State believes that that would be 5
appropriate and efficient.
6 JUDGE MCDADE: Does Entergy agree?
7 MR. BURCHFIELD: Your Honor, with regard to 8
the FSER supplement, we do agree with Mr. Sipos that 9
contentions would be deferred, but I know we're going 10 to discuss how we should manage 38 and 25, but we 11 remind the Board that New York State 26 is not the 12 subject of the pending supplement.
13 JUDGE MCDADE: Well, I understand that, but 14 it's the same period of time. And, as I said, in the 15 staff's most recent submission, they not only 16 suggested that 25 and 38 be deferred, but the staff 17 also believed that evidentiary hearings on New York 18 26(b) and Riverkeeper TC 1(b) should be delayed as 19 well. And that was the question that I asked New York 20 is whether or not they agreed with the staff on that 21 proposition.
22 And that's the question I'm asking of 23 Entergy as well is, do you agree that it would be 24 appropriate to hear 25, 26 and 38 together as opposed 25
4533 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 to bifurcating them and moving ahead on 26?
1 And, again, understanding that as we stand 2
right now, we've already had the direct testimony and 3
the rebuttal testimony submitted on 26, but the 4
question is, do you believe that the staff's 5
suggestion to defer 26 and hear those contentions 6
together is well taken, or does Entergy take exception 7
to that suggestion?
8 MR. BURCHFIELD: No, Your Honor. The short 9
answer is we agree with it.
10 JUDGE MCDADE: Okay. Now, in the last 11 submission from the staff, you were not able to give 12 a reasonable estimate as to when that supplemental 13 Safety Evaluation Report would issue.
14 Mr. Turk or Mr. Harris, do you have any 15 additional information, any update on that to suggest 16 or are we looking at the summer of 2013, the fall of 17 2013? Are we looking at 2014? What are we - can you 18 give us any additional information?
19 MR. TURK: Your Honor, this is Sherwin 20 Turk. We don't have any reliable dates that we can 21 give you at this time.
22 As you know, we had previously hoped to 23 have the supplement out in July as stated in our 24 latest, I think, post to the Board of June 3rd, but 25
4534 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 delayed in EPRI's issuance of its documents has 1
effected our ability to get the SER supplement out in 2
July and we're not really able to commit to a date at 3
this point until we see what the outcome is of the 4
EPRI document.
5 So, we are expecting them to have a 6
document out by the end of June. I think that will 7
give us a better basis for coming back to you with a 8
projected SER supplement date.
9 It won't be this summer. It could be in 10 the fall. I'm hoping it's not delayed until 2014, but 11 I would really rather wait to give you a date until we 12 have a basis of final tweaking for that estimate.
13 JUDGE MCDADE:
Okay. But in your 14 supplement, then, if you - and I won't use the 15 supplement too broadly. In your submission of June 16 3rd, you indicated that there was approximately a 30-17 day - you anticipated a 30-day delay from May 31st to 18 June 30th in the issuance of the EPRI document, you 19 know.
20 But yet, that 30-day delay and the 21 issuance of that document leads to an indefinite delay 22 in the issuance of the SER.
23 And without giving us a specific date, can 24 you suggest or do you still anticipate that we could 25
4535 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 see this in the summer of 2013, or are we looking at 1
the fall of 2013, or are we looking at even longer 2
than that?
3 MR. TURK: The fall would be the earliest, 4
Your Honor. After the EPRI documents are issued, the 5
staff plans to issue an REI to the applicant.
6 We will then need to get the applicant's 7
responses. And then we would need to issue the SEI 8
supplement taking those responses into account.
9 JUDGE MCDADE: So, we're not looking at 10 anything - we should not anticipate seeing anything 11 from the staff on this before Labor Day.
12 MR. TURK: That's correct.
13 JUDGE MCDADE: Okay. And we would direct 14 that you keep us updated on this. And as soon as 15 practicable when a reasonable date can be given, that 16 you inform the Board and the parties as to what that 17 date is.
18 MR. TURK: Yes, Your Honor.
19 JUDGE MCDADE: Okay. Now, the next thing 20 has to do with the pending Environmental Impact 21 Statement relative to Riverkeeper EC 8.
22 You indicated that that had been 23 completed, but had not been published. That 24 publication should take place sometime in June of 25
4536 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 2013.
1 Do you have any further update on that?
2 MR. TURK: Yes, Your Honor. Our last 3
estimate was that it will be issued - I believe I said 4
in June.
5 I don't think it will have to wait until 6
the end of June. Today is the 10th. I'm hoping that 7
in the next week that it goes out.
8 And the delay is really a function of 9
having to wait for a final publication clearance. But 10 I think by mid-month, by approximately in the next 11 week we should be -
12 JUDGE MCDADE: Now, the publication, is 13 this something just physical, or is there some editing 14 to be done?
15 And my question is whether or not an 16 electronic version could be furnished to the parties 17 prior to an actual physical printing.
18 MR. TURK: Your Honor, there is a final 19 editing process that's conducted. And that's part of 20 the publication process.
21 JUDGE MCDADE: So, the answer is that you 22 would not be prepared to release an electronic copy at 23 this time, because you believe that there is a 24 significant potential for edits to be made so that the 25
4537 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 final published version would be different than the 1
electronic version in existence as of June 10th.
2 MR. TURK: Yes, Your Honor. We know there 3
will be edits. I don't think there will be 4
substantive edits. These are more in terms of getting 5
the document to final publishing format.
6 We had an electronic version of what was 7
sent to the Office of Administration weeks ago, but 8
we're just not permitted to release until we get the 9
final version. Otherwise, we have problems with our 10 location process.
11 JUDGE MCDADE: Okay. From the standpoint 12 of New York after receipt of the supplement to the 13 Environmental Impact Statement, how long would the 14 State need, do you anticipate, before you would be in 15 the position to file any new or amended contentions 16 based on that?
17 MR. SIPOS: Judge, this is John Sipos in 18 Albany. Assuming optimistically that staff releases 19 the supplement Volume 4 to the F-SEISA on June 21, the 20 State would respectfully request approximately 60 days 21 given other scheduled items in the summer and the need 22 to thoroughly review it.
23 JUDGE MCDADE: Okay. And, you know, what 24 I'm trying to do here is just figure out a basic 25
4538 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 schedule that we would use both for the ruling on any 1
amendments to the contention, and then for the dates 2
of submitting direct testimony and, you know, the 3
rebuttal testimony.
4 MR. SIPOS: Right. And I can't -
5 Riverkeeper may have other scheduling factors to 6
account for as well.
7 MR. TURK: Your Honor, this is Sherwin 8
Turk. May I speak for just a moment?
9 JUDGE MCDADE: Yes.
10 MR. TURK: The contention that's pending is 11 a Riverkeeper contention. New York does not have a 12 contention that addresses aquatic issues.
13 The sole issues to be addressed by this 14 SEIS supplement is the aquatic issue. What are the 15 aquatic impacts of plant operation?
16 There is no reason for New York to be 17 offered any additional time to file contentions. As 18 I recall five or six years ago, they had filed a 19 contention addressing it. That contention was denied.
20 And, incidentally, the only person who 21 could possibly be effected by this F-SEIS supplement 22 would be Riverkeeper, because it's their contention.
23 JUDGE MCDADE: Well, going back it's still 24 perhaps a little overbroad in that regard. And it 25
4539 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 would be for New York, a new contention under the 1
standards for new contentions. For Riverkeeper, it 2
would be an amended contention based on the standards 3
for amended contentions.
4 But what I would ask is for both New York 5
and Riverkeeper within 10 days after the issuance of 6
the supplement to the Environmental Impact Statement, 7
if you notify the Board and the parties of a proposed 8
schedule.
9 In other words, take a quick look at it 10 and, you know, it may well be that New York will 11 decide, well, given what's here, there's nothing that 12 would be a basis for new contention by us.
13 It may be that Riverkeeper looking at it 14 will determine that there is something that would be 15 a basis for an amended contention.
16 And what we would like just simply to know 17 what the parties' views are and get an initial read on 18 how much time they feel they would need.
19 The other parties would then have an 20 opportunity to comment, and we can make a ruling on 21 that so that we can move this thing along.
22 The other thing that I would ask of the 23 parties right now is to consider - it appears that the 24 Track 2 safety contentions, there's a possibility of 25
4540 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 their being delayed.
1 Two questions with regard to the 2
environmental contention. Should it be delayed and 3
heard with those other safety contentions, or could we 4
move ahead on the environmental contention in the view 5
of the parties alone?
6 And, also, in answering that question, 7
understanding the logistics of holding a hearing in 8
Tarrytown, New York, whether it would be appropriate 9
if we heard a single environmental contention 10 separately that that be heard in Rockville.
11 Let me turn first of all to Riverkeeper 12 who has been very silent here for the last hour.
13 What's Riverkeeper's view?
14 MS. BRANCATO: Yes, Your Honor. This is 15 Deborah Brancato for Riverkeeper. I don't believe it 16 may be the best use of everyone's resources to split 17 this into three ways and proceed on just the 18 environmental contention.
19 With that said, we could be amenable to 20 considering that. However, we would take issue with 21 hearing the RK EC 8 related to endangered species 22 issues.
23 We would object to hearing that contention 24 in Rockville given the fact that it is not subject to 25
4541 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 any proprietary information, there's no restrictions 1
in that regard.
2 And in the interest of having the -
3 proceeding be as open to the concerned public and our 4
members as possible, we would object to having that 5
heard in Rockville versus in the vicinity of Indian 6
Point.
7 JUDGE MCDADE: And is the position of 8
Riverkeeper then that in setting out a balance if 9
Riverkeeper EC 8 could be heard earlier in Rockville 10 or later in Tarrytown, you would prefer the latter?
11 You would prefer it to be in Tarrytown even if that 12 meant that it were heard somewhat later in time.
13 MS. BRANCATO: Yes, Your Honor. Exactly.
14 JUDGE MCDADE: Okay. Anything further on 15 that issue from the staff?
16 MR. TURK: Yes, Your Honor. The contention 17 that we're addressing, Riverkeeper EC 8, raises a 18 legal issue.
19 It's our position that there should be no 20 hearing on it whatsoever once the F-SEIS supplement 21 comes out.
22 JUDGE MCDADE: But we won't know that until 23 it does.
24 MR. TURK: Pardon me?
25
4542 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 JUDGE MCDADE: We won't know that until it 1
does.
2 MR. TURK: Well, no, but my point is that 3
it's a legal issue, not a factual issue. The 4
contention asserts that the NRC move forward with its 5
F-SEIS before it concluded consultations with new.
6 As the Board is aware, we concluded those 7
consultations back in January. The F-SEIS supplement 8
will reflect the consultation, we'll recount what is 9
happening in our consultations with NMFS and we'll 10 reflect the outcome of the NMFS biological opinion and 11 its final tech statement.
12 So, once we issue the F-SEIS supplement, 13 we will have met the requirements posed by Riverkeeper 14 in this contention. And at that time, it would be 15 appropriate to dismiss the contention as a legal 16 matter.
17 JUDGE MCDADE: Which then -
18 MR. TURK: Perhaps Entergy would file a 19 motion to do that.
20 JUDGE MCDADE: Which then raises the issue 21 of whether or not having reviewed the staff's 22 supplement to the Environmental Impact Statement a new 23 or amended contention based on adequacy of the EIS may 24 or may not be appropriate. We won't know that.
25
4543 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 I just want to discuss with Riverkeeper 1
from a scheduling standpoint that if it is necessary 2
to go ahead with a hearing, an evidentiary hearing on 3
Riverkeeper 8, their input as far as scheduling and 4
location. And that's the question that I pose to the 5
staff as well.
6 In the event that a hearing on that 7
contention is necessary, the staff's new on location 8
and scheduling whether or not it could be heard in -
9 or should be heard in Rockville and/or whether if it 10 needs to be heard, it should be deferred until 25, 26 11 and 38 could be heard.
12 And when I say that, I don't mean to 13 slight the Riverkeeper input on 26 and 38. So, that's 14 the question just with regard to scheduling and 15 location.
16 Does the staff have anything to add to 17 what Ms. Brancato had to say?
18 MR. TURK: Yes. Speaking for the staff, 19 Your Honor, based on the current contention we see no 20 reason to wait for the hearings on safety contentions.
21 So, we would say if there is to be a 22 hearing on these current contentions, we should move 23 forward with it quickly rather than put it off.
24 JUDGE MCDADE: Okay. Entergy.
25
4544 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 MR. BURCHFIELD: Yes, Your Honor, we agree 1
with the staff that we believe - because the F-SEIS 2
supplement is coming out in the near term and it's a 3
narrow issue as we agree with the characterization of 4
Mr. Turk, we believe there's no reason to wait.
5 With regard to location, either Rockville 6
or someplace local to the plant we believe is 7
acceptable.
8 Also, we would, you know, the Board 9
probably, I'm sure, is aware, but on January 15th they 10 already issued an order that said any new or amended 11 contentions are due within 30 days. And we believe 12 that date is appropriate given the length of time the 13 draft has been available and the narrow focus of this 14 supplement.
15 JUDGE MCDADE: And as things stand right 16 now, that is the schedule. And the question is to 17 simply to direct the parties that after it comes out 18 within 10 days to advise us whether or not there is 19 any - and, again, we haven't seen it. We don't know 20 what it's going to say, how complex it's going to be, 21 what reaction of the parties is going to be to it.
22 But what we want to know is up front, what 23 the party's view is and whether or not there's going 24 to be a change in the schedule.
25
4545 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 Because at this point in time, obviously 1
this matter has, you know, we've been doing this since 2
2007, you know. We want to keep on top of the 3
schedule.
4 MR. BURCHFIELD: Yes, Your Honor.
5 JUDGE MCDADE: So, the -
6 MR. BURCHFIELD: Your Honor, I have one 7
more point. I remember in one of the prior board's 8
orders on going to hearing, the Board had determined 9
that based on the pleadings there might not be a need 10 for a hearing on every contention. And we would 11 remind the Board that that might be appropriate in 12 this circumstance as well.
13 JUDGE MCDADE: I understand. Thank you.
14 Okay. The next has to do just with regard 15 to there is a motion by Clearwater to amend our record 16 to add an additional submission.
17 The gist of the argument there is 18 effectively that disabled equals low income equals 19 environmental justice.
20 It's the position of the staff and Entergy 21 that this does not relate to an environmental justice 22 population. And, therefore, should not be included.
23 Does Clearwater have anything further to 24 say on that issue?
25
4546 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 MS. RAIMUNDI: Well, Your Honor. This is 1
Karla Raimundi for Clearwater. I guess I believe our 2
motion clearly explains our decision that it is 3
certainly relevant to the contention and to what was 4
presented in the hearing.
5 JUDGE MCDADE: Okay, thank you. Okay. One 6
other matter to take up. New York filed on June 3rd, 7
a Request for Clarification regarding the continuing 8
duty to disclose whether or not it should be covered 9
under 236(d) as published in 2007 when we started, or 10 236(d) from 2013. There was also a scheduling order 11 that we issued that controls.
12 At this point, is it the view of New York 13 that the 2013 revision of 236(d) should modify the 14 scheduling order issued by the Board, or that the 15 scheduling order by the Board remains operative?
16 MR. SIPOS: Your Honor, this is John Sipos 17 in Albany. I think the State's position would be that 18 it would be best if the scheduling order were to 19 remain the primary control.
20 And I am also reminded of a - I believe it 21 is an August 8, 2012 order that the Board issued, I 22 think, sua sponte after the Part 2 regulations were 23 revised last year.
24 And I think it would help the parties -
25
4547 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 and in that - well, that order speaks for itself and 1
I'm sure the Board is familiar with it.
2 I think it would be of assistance or from 3
New York's position the scheduling order would be 4
appropriate to maintain it.
5 But I think from the party's perspective, 6
taking a step back it would be helpful to make sure 7
that everyone is on the same page with respect to the 8
continuing obligation.
9 I would note - I guess I should probably 10 note for the Board's perspective how New York came to 11 make this suggestion for today's conference.
12 In some of the follow-on communications 13 following the service of NL-13-075, some of the 14 parties have had discussions about materials that were 15 created to support that.
16 And so, that sort of gave the State some 17 insight into perhaps this was an issue that should be 18 raised and so that everyone is working off the same 19 set of assumptions not only with regard to or not only 20 flowing from NL-13-075, but in the contemplation that 21 other similar situations may arise in the future 22 depending on board rulings under its contentions.
23 JUDGE MCDADE: Okay. So, it was New York's 24 view not to request a change, but rather just to make 25
4548 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 sure that the issue is clear to all parties.
1 MR. SIPOS: Yes, Your Honor.
2 JUDGE MCDADE: Okay. Does the staff have 3
a view that there should be something other than what 4
we said in the scheduling order as far as the 5
continual order to disclose?
6 MR. TURK: Your Honor, we assume that we're 7
operating and we are operating under your original 8
scheduling order as amended by the Board over time.
9 I think there's a specification that I 10 haven't heard Mr. Sipos make. And that is, well, what 11 happens to contentions that have already been 12 resolved?
13 Now, for the staff's purposes, it doesn't 14 matter. We're disclosing all documents regardless of 15 whether it's tied to an active contention or not.
16 But for other parties, are they obligated 17 to continue to provide documents through disclosures, 18 for instance, on Contention 35/36 that the Board has 19 resolved already?
20 I think that's what Mr. Sipos is hinting 21 at, but he hasn't stated on the record.
22 MR. SIPOS: Well, I wasn't - this is John 23 Sipos. I wasn't trying to be indirect. I thought it 24 was important to raise as a generic issue going 25
4549 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 forward.
1 It did arise. It came to my attention and 2
it did arise in the context of NL-13-075 and potential 3
carryover to New York 35/36.
4 JUDGE MCDADE: And it would be the general 5
view of the Board that there's a continuing obligation 6
to disclose if there is information that reasonably 7
could lead to a new or amended contention, that that 8
need to be disclosed pursuant to our scheduling order.
9 Not necessarily everything needs to be 10 disclosed, but only matters that are potentially 11 within the scope of this proceeding.
12 But, Entergy, do you agree with that?
13 MR. BURCHFIELD: Respectfully, Your Honor, 14 I think that's an improper standard. I mean, on 15 disclosure obligations, decades of ASLB precedent are 16 tied to admitted contentions.
17 And if although we respectfully disagree 18 with Your Honor's decision, the Board has stated that 19 35 and 36 were resolved as a matter of law. So, it's 20 not an active contention at this point.
21 With that said, I want to make clear that 22 we have provided New York per their request on a 23 voluntary basis, the documents that are relevant to 24 this contention, but I don't see how any party has a 25
4550 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 legal obligation to disclose documents on a contention 1
that's not active.
2 It's not with regard to the proceeding, I 3
mean, it's not generally license renewal. It's with 4
regard to admitted contentions.
5 JUDGE MCDADE: And specifically that you 6
did disclose with regard to 35/36, the obligation is 7
to be viewed broadly.
8 As I indicated, you don't have an 9
obligation to disclose everything. In other words, 10 just simply, you know, I mean part of the issue that 11 generally comes up in these proceedings, if anything, 12 there is overdisclosure rather than underdisclosure 13 and the various parties are left with far too large a 14 haystack to try to find the appropriate needle in.
15 So, we're not suggesting that the 16 disclosure obligation is to disclose every document 17 that Entergy could possibly generate, because then 18 that makes the entire disclosure obligation somewhat 19 meaningless.
20 The obligation is to turn over documents 21 that are reasonably within the scope of this 22 proceeding and to turn them over consistent with the 23 Board's scheduling order.
24 That said, I think that is enough, but I 25
4551 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 think, you know, the way that Entergy had responded 1
with regard to 35/36 and those SAMAs is consistent 2
with the understanding of the Board of what Entergy's 3
discovery obligations are.
4 Again, if the matter is within the scope 5
of these proceedings, there is an ongoing obligation 6
to disclose and I don't know how the Board could be 7
more specific than that. So, why don't we just leave 8
it there as to what the Board's expectations are in 9
this regard.
10 MR. SIPOS: Your Honor, this is John Sipos, 11 and I'm sorry, I apologize to you and to everyone else 12 if I'm belaboring the point, but it is the - is it the 13 State's understanding that the Board's position is 14 that the discovery obligations continue even after a 15 board decision adverse or in favor of a contention one 16 way or the other?
17 JUDGE MCDADE: I mean, part of the issue 18 here has to do with at what point, and the Board is 19 getting to the point of closing the record in this 20 proceeding.
21 Because as we write our initial decision 22 on the Track 1 contentions, we continue to get 23 additional information in and it makes it more and 24 more difficult to hit a moving target.
25
4552 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 I don't know that I can be more specific 1
than I have been. I think depending on the ruling of 2
the Board and how the Board disposes of a particular 3
contention may well inform the discovery obligation.
4 And all I can say and will say at this 5
point in time is if the new information is on a matter 6
within the scope of the proceeding, that at that point 7
there is a continuing obligation to disclose.
8 But what I want to do is to make sure that 9
that is narrow enough so that there is not an 10 obligation on either Entergy, the staff or New York or 11 Riverkeeper or Clearwater, any of the parties, to turn 12 over every piece of paper that comes into their 13 possession, because that makes the discovery and the 14 disclosure requirement somewhat meaningless.
15 So, you know, at this point in time it 16 appears that Entergy is acting consistent with what 17 our statement is with regard to the matters within the 18 scope of the proceeding.
19 And I don't know that we can be or will be 20 more specific than that in giving the parties 21 direction.
22 MS. LIBERATORE: Your Honor, this is 23 Kathryn Liberatore for the State. If I may just 24 clarify one point with respect to Entergy's 25
4553 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 disclosures on 35 and 36?
1 The State was unaware that Entergy was 2
even performing any work in connection with 35 and 36 3
until Entergy filed NL-13-075 with the Board on May 4
7th, 2013.
5 Subsequent to that we did request the 6
underlying documents supporting NL-13-075 from 7
Entergy. You know, Entergy did state to us at that 8
time that it was their belief they did not have a 9
continuing obligation to disclose those documents, but 10 as a courtesy they did disclose those documents to us.
11 I just wanted to note that the underlying 12 implementation cost conceptual design packages were 13 actually dated September of 2012, September 20th, 14 2012. So, that did create a bit of a problem for us 15 because, you know, if we had gotten those back in 16 September or October and if they were, you know, 17 relevant as we believed to - potentially to other 18 contentions.
19 So, I just wanted to note that for the 20 Board that there was sort of a discrepancy with the 21 State's position on disclosures with Entergy 22 especially in the context of 35 and 36.
23 JUDGE MCDADE: Okay. And also I want to 24 make it clear that with regard to the disclosures, it 25
4554 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 is not the intent of the Board to direct that, for 1
lack of a better phrase, ongoing analysis, works in 2
progress that, you know, Entergy or any of the other 3
parties needs to disclose matters, you know, as they 4
are occurring as they're working through particular 5
matters.
6 But at the same time, once a matter 7
reaches - an activity reaches maturity, you know, such 8
that it reasonably impacts or could reasonably impact 9
the matter within the scope of the proceeding, we 10 would expect that it would be disclosed pursuant to 11 the schedule set in our scheduling order.
12 MR. BESSETTE: Your Honor, this is Paul 13 Bessette. Just could I - because it may relate to 35 14 and 36 going forward.
15 Does the Board consider the record still 16 open on those contentions?
17 JUDGE MCDADE: At this point in time, no.
18 The Board does not consider it as I think I indicated 19 earlier, you know, as far as the Board is concerned 20 with regard to 35 and 36, we have ruled that given the 21 state of the record at the time of our ruling, the 22 license would not be approvable that two things could 23 change that. Either the Commission overrules the 24 Board's decision, or the state of the record changes.
25
4555 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 That with regard to the state of the 1
record changing as we had some discussion earlier, is 2
what triggers the obligation of other parties to take 3
action either to file, for example, new or amended 4
contentions and there has to be some availability of 5
information in order for them to do that.
6 Information that is only within Entergy, 7
obviously, would not implicate that. Information that 8
is submitted by Entergy that is directly related to 9
this proceeding, I think, is entirely different.
10 So, you know, with that said, you know, I 11 think the intent of the submissions that Entergy made 12 in May were to resolve issues created by the Board's 13 decision on 35 and 36. And, therefore, I think 14 appropriately were within the scope of this 15 proceeding.
16 And I do think it was appropriate for 17 Entergy to having provided that information to the NRC 18 staff to disclose it to the other parties, because it 19 also had the potential to impact other SAMA 20 contentions such as 16 and 17, which New York was in 21 the view that it did, in fact, and, again, we have to 22 make a decision, but New York's view was that it did 23 not only impact 35 and 36 that was ruled on, but also 24 that it impacted 16(b) is within the scope of the 25
4556 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 ongoing proceeding. And, therefore, was properly 1
disclosed or was properly subject to disclosure and at 2
this point, has been disclosed.
3 If that answers your question, good. If 4
it doesn't, I don't know that I could be more specific 5
at this point in time.
6 And if any of the parties believe that 7
additional clarification is necessary rather than just 8
doing it off the top of our heads here, that I would 9
ask you to submit a proposal with appropriate briefing 10 and the Board would then rule in due course.
11 MR. BESSETTE: Thank you, Your Honor. Very 12 helpful.
13 JUDGE MCDADE: Are there any other matters 14 that New York believe should be taken up at this 15 particular conference?
16 MR. SIPOS: Your Honor, this is John Sipos.
17 I do not believe there are.
18 JUDGE MCDADE: Riverkeeper.
19 MS. BRANCATO: No, Your Honor. Thank you.
20 JUDGE MCDADE: Clearwater.
21 MS. RAIMUNDI: No, Your Honor. This is 22 Karla Raimundi for Clearwater.
23 JUDGE MCDADE: Entergy.
24 MR. BURCHFIELD: No, Your Honor. Nothing 25
4557 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 further.
1 JUDGE MCDADE: The NRC staff.
2 MR. TURK: I do have one issue related to 3
Mr. Sipos' last issue, Your Honor. And I'm not asking 4
for any action by the Board at this time, but, Your 5
Honor, in discussing Mr. Sipos' last request, you 6
indicated that the Board is getting to a point where 7
it may consider closing the record on litigated 8
contentions. It is noted that the Board keeps getting 9
additional information related to those contentions.
10 The staff has previously sought to close 11 the record and, Your Honor, it is my view that it was 12 premature, but I think it would be appropriate if we 13 might consider filing a motion to close the record on 14 the litigated contentions at this time given the fact 15 that the Board does need to rule conclusively and we 16 do need to keep additional matters from being 17 submitted unless they're so significant that they 18 would trigger the standards for reopening.
19 So, I don't think the Board would consider 20 that kind of a motion now beyond the oral motion I 21 have made at the close of hearings.
22 MR. SIPOS: Your Honor, may I - since Mr.
23 Turk has raised that issue, may I speak briefly on 24 that issue?
25
4558 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 JUDGE MCDADE: Yes.
1 MR. SIPOS: In the past few days there have 2
been consultations amongst the parties initiated by 3
the State of New York concerning some documents that 4
were very reasonably disclosed to the State.
5 I don't want to get ahead of any filings 6
or motions, but I would not want to sit by quietly and 7
not say anything given what Mr. Turk has said and 8
given the standard that he has suggested which is that 9
the documents must be so significant, quote/unquote, 10 but just to alert Your Honors that the staff and 11 Entergy and representatives from the State have been 12 having discussions about some recently disclosed 13 documents concerning one Track 1 contention.
14 JUDGE MCDADE: Okay. Well, the Board is 15 not going to close the record at this time today based 16 on the oral motion of Mr. Turk, but, you know, as I 17 think I indicated that the Board is leaning heavily in 18 the short term sua sponte to close the record, because 19 ultimately we need to issue our initial decision on 20 Track 1 that is impossible to do with a moving target.
21 And, you know, ultimately we need to get 22 in the short term, get this thing out the door. And, 23 you know, at a certain point in time given the fact 24 that we've gone through the hearing or had a several-25
4559 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433 month period of time after the hearing, at a certain 1
point we need closure on this and so that we can issue 2
the decision based on the record before us so we can 3
then allow the parties to move on with either appeals.
4 So, if there is going to be further 5
discussion on something, make it - I would urge the 6
parties to expedite that, because I think you could 7
reasonably anticipate the Board closing the record in 8
the short term.
9 MR. SIPOS: Your Honor, this is John Sipos.
10 Thank you.
11 JUDGE MCDADE: Well, let me put this on 12 mute for a second.
13 (Pause in the proceedings.)
14 JUDGE MCDADE: Okay. At this point we're 15 ready to terminate this particular conference. Before 16 I do, does any party have anything further to raise 17 before we terminate?
18 (No response.)
19 JUDGE MCDADE: Not hearing anything, I 20 thank you very much for your participation and what 21 you've had to offer us here today and this conference 22 is now closed. Thank you.
23 (Whereupon, at 2:44 p.m. the hearing was 24 concluded.)
25