ML14209A932
| ML14209A932 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 07/28/2014 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 26259 | |
| Download: ML14209A932 (80) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Entergy Nuclear Operations, Inc.
Indian Point Nuclear Generating Units 2 and 3 Docket Number: 50-247-LR and 50-286-LR Location: teleconference Date: Thursday, July 17, 2014 Work Order No.: NRC-922 Pages 4560-4638 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433
4560 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3 + + + + +
4 ATOMIC SAFETY AND LICENSING BOARD PANEL 5 + + + + +
6 HEARING 7 -------------------------x Docket Nos.
8 In the Matter of: : 50-247-LR 9 ENTERGY NUCLEAR : 50-286-LR 10 OPERATIONS, INC. : ASLBP No.
11 (Indian Point Nuclear : 07-858-03-LR-BD01 12 Generating Units 2 and 3):
13 -------------------------x 14 15 Thursday, 16 July 17, 2014 17 18 Via teleconference 19 20 BEFORE:
21 LAWRENCE G. McDADE, Chairman 22 DR. MICHAEL F. KENNEDY, Administrative Judge 23 DR. RICHARD E. WARDWELL, Administrative Judge 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4561 1 APPEARANCES:
2 Counsels for the Applicant 3 Paul M. Bessette, Esq.
4 Martin J. O'Neill, Esq.
5 of: Morgan, Lewis & Bockius, LLP 6 1111 Pennsylvania Avenue NW 7 Washington, DC 20004 8 pbessette@morganlewis.com 9 martin.oneill@morganlewis.com 10 11 Bobby Burchfield, Esq.
12 McDermott, Will and Emery, LLP 13 600 13th Street NW 14 Washington, DC 20005 15 bburchfield@mwe.com 16 17 Elise N. Zoli, Esq.
18 Kevin Martin, Esq.
19 Martin Healy, Esq.
20 of: Goodwin Procter, LLP 21 Exchange Place, 53 State Street 22 Boston, MA 02109 23 ezoli@goodwinprocter.com 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4562 1 On Behalf of the Nuclear Regulatory Commission 2 Sherwin E. Turk, Esq.
3 David E. Roth, Esq.
4 Brian Harris, Esq.
5 of: U.S. Nuclear Regulatory Commission 6 Office of the General Counsel 7 Mail Stop O-15D21 8 Washington, DC 20555-0001 9 301-415-4126 10 11 On Behalf of The State of New York 12 John J. Sipos, Esq.
13 Kathryn Deluca, Esq.
14 Lisa Burianek, Esq.
15 Laura Heslin, Esq.
16 Janice Dean, Esq.
17 Assistant Attorneys General 18 of: The Office of the Attorney General of the 19 State of New York 20 The Capitol, State Street 21 Albany, New York 12224 22 john.sipos@ag.ny.gov 23 kathryn.deluca@ag.ny.gov 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4563 1 Anthony Roisman, Esq.
2 of: National Legal Scholars Law Firm, P.C.
3 Weathersfield, Vermont 05156 4
5 On Behalf of Riverkeeper, Inc.
6 Deborah Brancato, Esq.
7 Phillip Musegaas, Esq.
8 of: Riverkeeper, Inc.
9 20 Secor Road 10 Ossining, NY 10562 11 phillip@riverkeeper.org 12 dbrancato@riverkeeper.org 13 14 On Behalf of the Town for Cortlandt 15 Victoria S. Treanor, Esq.
16 of: Sive, Paget & Riesel, P.C.
17 460 Park Avenue 18 New York, NY 10022 19 vtreanor@sprlaw.com 20 21 ALSO PRESENT:
22 John W. Lubinski, NRC, NRR, Division of License 23 Renewal 24 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4564 1 P R O C E E D I N G S 2 (11:09 a.m.)
3 CHAIRMAN MCDADE: We're now on the record.
4 This is Judge Lawrence McDade. We're here in the 5 matter of Entergy Nuclear Operations, Inc., Indian 6 Point Nuclear Generator Units 2 and 3, Docket Number 7 50-247-LR and 50-286-LR.
8 We had set a scheduling conference in our 9 order of June 25th. We had various questions that we 10 wanted to ask the parties, some of which have been 11 answered in subsequent submissions that we received on 12 July 1st and again on July 15th. So hopefully we will 13 be able to move through this conference relatively 14 quickly.
15 Before we proceed further, on the record 16 I want parties to identify themselves. Who will be 17 representing the NRC staff today?
18 MR. TURK: Your Honor, Sherwin Turk.
19 CHAIRMAN MCDADE: With you is Mr. Roth and 20 Mr. Harris?
21 MR. TURK: Oh. Yes, Your Honor. And with 22 me are David Roth, Brian Harris, as well as Mr. John 23 Lubinski who is the director of the Division of 24 License Renewal, Office of Nuclear Reactor Regulation.
25 CHAIRMAN MCDADE: Okay, thank you. And NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4565 1 representing Entergy today?
2 MR. BESSETTE: Yes, Your Honor. This is 3 Paul Bessette, and with me on the phone is Bobby 4 Burchfield, Martin O'Neill, Elise Zoli, Kevin Martin 5 and Marty Healey.
6 CHAIRMAN MCDADE: Okay. Thank you. From 7 the State of New York?
8 MR. SIPOS: Good morning, Your Honor.
9 This is John Sipos, S-I-P-O-S. With me is Assistant 10 Attorney General Lisa Burianek. And also on the 11 phone, our Assistant Attorney General, Kathryn Deluca, 12 Laura Heslin, Janis Dean and also Mr. Tony Roisman.
13 CHAIRMAN MCDADE: For Riverkeeper?
14 MS. BRANCATO: Good morning, Your Honor.
15 This is Deborah Brancato for Riverkeeper. My 16 colleague, Phillip Musegaas will be joining later in 17 the call.
18 CHAIRMAN MCDADE: Okay. Thank you. And 19 again, from Clearwater, is there anybody on the line 20 representing Clearwater?
21 (No audible response) 22 CHAIRMAN MCDADE: Okay, apparently not.
23 From the interested Government entities, the only 24 parties that had called in for a speaking line was 25 Cortlandt. Is a representative from Cortlandt on the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4566 1 line?
2 MS. TREANOR: Yes, Your Honor. This is 3 Victoria Treanor.
4 CHAIRMAN MCDADE: Okay. Thank you.
5 Basically, what sort of led to this particular status 6 conference is this. This matter has been before the 7 Board for a considerable period of time. It arose out 8 of an April 2007 application by Entergy for a license 9 renewal for the Indian Point 2 and 3 units.
10 Unit 2 was scheduled to expire in 11 September of 2013 and did. Unit 3 is scheduled to 12 expire the current license in December of 2015.
13 Pursuant to NRC regulations, specifically 14 2.109(b), if an Applicant files a sufficient 15 application for renewal of an operating license at 16 least five years prior to the expiration, the existing 17 license will not be deemed to have expired until the 18 application has been finally determined.
19 I believe that that regulation was put in 20 place to encourage timely submissions of applications 21 which, here, the application was submitted well more 22 than six years before the first expiration date. And 23 it anticipated that we would be able to get through 24 the proceedings prior to the date of expiration.
25 But there was sort of a safety gap so that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4567 1 the plant would not need to shut down for a period of 2 time while the adjudication continued. That said, 3 we're now more than seven years into the proceeding.
4 The Board was established in October of 5 2007. We granted a hearing for originally 16 6 petitioners. We granted hearings to three, New York, 7 Riverkeeper and Clearwater, back in July of 2008, more 8 than six years ago. And there doesn't appear to be an 9 end on the horizon.
10 So at this point in time, the intervenors, 11 New York, Riverkeeper and Clearwater, have identified 12 genuine issues of law or fact that have not been 13 adjudicated. And we are in a period of continuing 14 operation beyond the original license.
15 So understanding that granting a hearing 16 is not just having a hearing, but having a meaningful 17 right to a hearing, the Board is trying to see what we 18 can do when we issued or order of June 25th and 19 expedite this to bring this to an ultimate conclusion.
20 So that's the purpose of this. And I have 21 some basic questions. The first has to do with the 22 matters that are currently on appeal. And my 23 question, and let me just address, first of all, the 24 appeal on NY-35 and NY-36 relating to SAMAs. And I 25 want to go through each of the parties.
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4568 1 Assume, for the sake of argument for this 2 question, that the Commission affirms the granting of 3 summary disposition on NY-35 and NY-36, how does that 4 relate to 2.309(b)?
5 Would that be a finding by the Commission 6 that a sufficient application for renewal had not been 7 filed? And would that result in the shutdown of the 8 plant?
9 Or, given the fact that there has been 10 additional information submitted, I believe that May 11 6th of 2013 engineering reports addressing the issues 12 that were raised in NY-35 and NY-36 were submitted and 13 that those are still being reviewed by the NRC. Is 14 this a situation where, again, it would be a finding 15 that a sufficient application had not been submitted 16 and the plant would need to close down?
17 Or would it be a situation where either 18 Entergy, or the staff or both would need to file a 19 motion to reopen to consider the matters presented by 20 Entergy in its May 6th, 2013, engineering reports and 21 any supplemental FSEIS that the staff might issue?
22 So that's sort of the long question, then 23 we just sort of run through, And I'm going to 24 address, first of all, to the staff, then to Entergy, 25 then to New York. Mr. Turk?
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4569 1 MR. TURK: Your Honor, you pose a very 2 interesting question. But it's not one that I can 3 help you with today. I think what has to happen is 4 that the Commission has to review the appeals that are 5 currently pending before it from the Board's grant of 6 summary disposition on Contention NY-35, NY-36.
7 CHAIRMAN MCDADE: Do you have any insight 8 on the schedule of that? It's now been several months 9 since the initial decision was issued by the Board and 10 the briefing was completed by the parties. Are you 11 privy to any information as to when a decision from 12 the Commission on the pending appeals is likely?
13 MR. TURK: No, we are not, Your Honor. In 14 fact, we're barred from being privy to any information 15 that the other parties are now privy to.
16 CHAIRMAN MCDADE: Well, they might be 17 privy to it as well. But certainly the Board isn't 18 privy to it. And what you're saying, Mr. Turk, is 19 that you have no information. You haven't been 20 advised that the appeal is scheduled to be, you know, 21 an order issued by any particular date.
22 MR. TURK: That's correct, Your Honor.
23 CHAIRMAN MCDADE: Okay. So sort of going 24 through assume, the first part of my question, that 25 the Commission upholds the grant of summary NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4570 1 disposition and says that the Board was correct.
2 Would that constitute a finding by the Commission that 3 a sufficient application for renewal had not been 4 submitted? And that language is used in 2.109(b).
5 MR. TURK: Your Honor, I really can't 6 comment on that. I don't know. And I would expect 7 that the Commission itself, upon ruling on the pending 8 appeals, will provide guidance on that issue. I can't 9 speak for them, and I really can't predict what they 10 will do.
11 CHAIRMAN MCDADE: And part of raising it 12 in this transcript, it certainly would be helpful for 13 the Board to get guidance on that as we proceed ahead 14 with the rest. Mr. Bessette, or anyone else, or 15 Entergy, would you care to address that particular 16 question?
17 MR. BESSETTE: Yes, Your Honor. This is 18 Paul Bessette. It would come to no surprise to the 19 Board that we believe the answer to your question is 20 no. A Commission upholding of the motion for summary 21 disposition would not constitute a finding that the 22 application is not complete.
23 That, for purposes of timely renewal, if 24 the application was complete and accepted for 25 docketing, we believe that meets the satisfaction of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4571 1 that standard.
2 In fact, Your Honor, it would be quite 3 ironic if the opposite were held. Because the 4 Commission states that you should not appeal these 5 matters until the end of a proceeding. And we were 6 not allowed to appeal that issue until the Board 7 issued its partial initial decision.
8 So for the Commission to say, aha, it's 9 too late, you must shut down, that's completely the 10 opposite of the intent of the regulation. So our 11 answer as no, we do not believe a finding would be 12 that the application would be insufficient.
13 And again, it would be completely opposite 14 of the Commission's guidance and regulations 15 associated with the timing of appeals.
16 We would imagine that the Commission, even 17 if they upheld he motion for summary disposition, 18 would provide some direction to the parties to go back 19 and take some further action and, as you noted, 20 particularly as Entergy has voluntarily submitted 21 additional information and that the staff has stated 22 that they're going to address that in FSEIS 23 supplement.
24 CHAIRMAN MCDADE: Okay. And in fact, that 25 information was submitted by Entergy more than a year, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4572 1 between a year and a year a half ago, back May of 2 2013.
3 The next question, and let me address that 4 again to Entergy initially, is how do you believe this 5 would come back in front of the Board?
6 Given the fact that we have already ruled 7 on NY-35 and NY-36, is it a situation where Entergy, 8 as the Applicant, would have to file a petition to 9 reopen the record with regard to NY-35 and NY-36 in 10 order for the Board to reconsider the contention with 11 the additional information submitted by Entergy in May 12 of 2013 and any additional analysis which the staff 13 says will be forthcoming in a supplement to the FSEIS?
14 MR. BESSETTE: Yes, Your Honor. I guess 15 there's a couple of things. I mean, if the 16 Commission, I guess the premise is if the Commission 17 upholds the motion for summary disposition with that 18 premise, and based on our submission and the expected 19 FSEIS supplement, we would take it upon ourselves to 20 reopen that issue and say the issue has been cured, so 21 yes.
22 CHAIRMAN MCDADE: But the Board may be 23 faced with this prior to the time that the Commission 24 rules, that there could be an FSEIS that is submitted.
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4573 1 that, because he says the schedule will be published 2 in the near future, and to try to get a little bit 3 more information as to what that means in real time.
4 But assume the FSEIS is published at that 5 time, should we procedurally, and I want to ask New 6 York, Entergy and the staff on this, should we just 7 simply set a date for the filing of any amendments to 8 Contention NY-35 or NY-36? Or would it be incumbent 9 on the Board to wait until there's a motion to reopen?
10 First of all, Entergy, what's your view?
11 MR. BESSETTE: Well, Your Honor, I think 12 we all realize that the Commission hasn't ruled on 13 this. We're going to have to resolve this. So I 14 would believe if the Board could issue a ruling with 15 regard, a date for further submission, I think that 16 would be the best bet rather than wait for the 17 parties.
18 CHAIRMAN MCDADE: Mr. Turk, what's the 19 staff's view?
20 MR. TURK: Well, Your Honor, first of all 21 let me say that the only issues before the Board are 22 those that involve pending admitted contentions. NY-23 35, NY-36 have been resolved for the Board's purposes.
24 So there is nothing before you concerning the 25 engineering project cost information at this time.
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4574 1 CHAIRMAN MCDADE: So it would be the 2 staff's position, then, that we would not have any 3 jurisdiction unless and until one of the parties moved 4 to reopen the record and be granted that motion?
5 MR. TURK: That's my belief, Your Honor.
6 Because there's nothing relating to that contention 7 before you at this time.
8 CHAIRMAN MCDADE: Okay. What is New 9 York's view on this, Mr. Sipos or --
10 MR. SIPOS: Yes, good morning, Your Honor, 11 John Sipos. Going back, I think there's perhaps two 12 questions pending for the State following on your 13 questions there.
14 And the parameters of your question are 15 for the parties, in responding to your question, to 16 assume for the sake of argument that the Commission 17 takes review and upholds the Board's summary 18 disposition grant.
19 And as an initial matter, I think the 20 State must note that under the December 2009 SAMA re-21 analysis there were 20 or more cost effective 22 upgrades. That is, if we're operating under a cost 23 benefit model, these upgrades have been deemed to 24 provide more benefit to society than they cost.
25 So the State is keenly interested in those NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4575 1 upgrades and is keenly interested in their 2 implementation, if that is, you know, if that is how 3 the Commissioners ultimately rule.
4 So coming back to your question about 5 2.309, I believe that that Commission ruling, as you 6 posit, would be a determination that the application 7 was not adequate or not sufficient.
8 And it would be therefore incumbent upon 9 the owner/operator to move forward and address that 10 deficiency, you know, whether or not in concert with 11 the staff of the Commission.
12 CHAIRMAN MCDADE: Okay. Well, let me ask 13 you, Mr. Sipos, first of all. You know, part of the 14 language is that the current licenses will not be 15 deemed to have expired until the application has been 16 finally determined.
17 Assume, for the sake of argument, that the 18 Commission rules on one or more contentions that the 19 license cannot be issued. Does that constitute final 20 determination on the application or do we, as a Board, 21 need to continue on the outstanding contentions?
22 In other words, if any one of, for 23 example, if on NY-8, the staff position and Entergy's 24 position on appeal was not upheld, and the Commission 25 determined that an aging management plan was needed in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4576 1 that circumstance, would that end the proceeding?
2 Or would Entergy have an opportunity to 3 submit an aging management plan that would then be 4 subject to an additional period of time for filing new 5 contentions and the resolution of those? Let me just 6 go in reverse order here. New York, what's your view 7 on that?
8 MR. SIPOS: Yes, Your Honor. This is John 9 Sipos. My first observation would be that this would 10 be a situation that has not, to my knowledge, and I 11 haven't researched it extensively, but has not been 12 encountered before.
13 And I think there are some sub-questions 14 in the question that you asked me. And I hope I can 15 pick, I hope I can touch on each of them. The first 16 is would it, as I understood Your Honor's question, 17 would it end the proceeding perhaps with respect to 18 Contention NY-8 in transformers?
19 And the State's position would be, such a 20 ruling as Your Honor posits, would be a determination, 21 a final determination on the application with respect 22 to those systems, structures and components.
23 CHAIRMAN MCDADE: Well, my question is not 24 with regard to any particular contention, and I want 25 you to address it and also the other parties. Would NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4577 1 it be a final determination pursuant to 2.101(b) and 2 end the proceeding? And we could all go home.
3 MR. SIPOS: So, Your Honor, if I could put 4 that, if I could try to recap that perhaps in another 5 term. Is your question to the State, would that be in 6 essence "game over" if the Commission were to so rule?
7 CHAIRMAN MCDADE: Yes.
8 MR. SIPOS: I think it would be a 9 determination for those contentions, and it would 10 show, I think it would be a determination that the 11 application was deficient. So I guess in short, the 12 short answer to your question, as I understand it, is 13 yes.
14 Now, I mean, there are other issues that, 15 you know, the parties have been pursuing. But I think 16 that would be a final determination that the 17 application was not adequate.
18 CHAIRMAN MCDADE: Okay. And I'm making an 19 assumption here that Entergy disagrees with that.
20 MR. BESSETTE: Yes, Your Honor. I mean, 21 I think frankly that makes no sense. That means it's 22 Russian roulette on any appeal. You can't appeal to 23 the end. But if you lose your appeal, game over.
24 That really makes no sense and has no support or 25 precedent in any licensed or known proceeding.
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4578 1 CHAIRMAN MCDADE: And in fact, you know, 2 if you do try to look it up, as Mr. Sipos said, he 3 hadn't looked at it extensively, you're not going to 4 find any guidance.
5 And in fact here, for example, on NY-35 6 and NY-36, way back when, when we originally granted 7 some redisposition, Entergy did if fact seek appeal.
8 And it was stated by the Commission at that point in 9 time that the appeal was premature and had to wait 10 until we issued an initial decision.
11 But the question to Entergy is, in the 12 event there is that kind of a finding by the 13 Commission, that one or more of the contentions where 14 the Board found for the intervenors is affirmed, what 15 does Entergy do then?
16 Does Entergy have the ability to continue 17 to operate under 2.109(b)? If so, until when, and if 18 not, what is incumbent upon Entergy to do to file a 19 motion with the Commission to allow continued 20 operation? And if so, under what authority would the 21 Commission be able to grant a temporary license since 22 right now it's operated under 2.109(b). I 23 n other words, would Entergy have the 24 opportunity, while the license is deemed not to have 25 expired, to submit a new aging management plan? And NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4579 1 again, we still have other aging management plan 2 contentions down the road on NY-25, NY-26, NY-38, you 3 know. Or would, for the purposes of this proceeding, 4 it be over?
5 And all I'm trying to do is raise these 6 issues, get the parties to think about these issues, 7 perhaps the people who will be writing the order from 8 the Commission will be able to give guidance in this 9 area when they rule on the appeal. But what I'm 10 trying to do is raise it and get the views of the 11 parties with regard to it.
12 So, you know, what would it be incumbent 13 upon Entergy to do, for example, if the Commission 14 rules that, in fact, an aging management plan for 15 transformers was required and that the application is 16 sufficient because that was not part of it.
17 MR. SIPOS: And, Your Honor, this is John 18 Sipos. Perhaps if I could respond in part to what Mr.
19 Bessette just said.
20 As the State is reading, and I think this 21 is an area that, you know, we will research more, but 22 as the State is reading 10 CFR Section 2.341(e), I 23 believe that section provides that neither the filing 24 or granting of a petition for review stays a Board's 25 order.
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4580 1 So I don't know that timely renewal, you 2 know, operates as a stay for a Board or Commissioner 3 level ruling that could be contrary to Entergy's 4 wishes.
5 MS. DELUCA: And this is Kathyrn Deluca 6 for the State. I think, you know, from the State's 7 perspective, just jumping off of what John said, you 8 know, we have a question specifically related to 9 2.341(e) as to whether Entergy and NRC are currently 10 engaging in aging management review of transformers 11 and sort of what the status of that is while the 12 petitions for review before the Commission are 13 pending.
14 And if we could get some more information 15 on that, I think that that might help us with our 16 analysis, both under 2.341(e) as well as under the 17 timely renewal doctrine and its, you know, potential 18 for continuing to be in effect.
19 CHAIRMAN MCDADE: Okay.
20 MR. BESSETTE: Your Honor, this is Paul 21 Bessette. I think I have to jump in here. Because I 22 don't think the determination of whether Entergy is 23 allowed to operate under timely renewal is an issue 24 for New York to decide or an issue, frankly, for the 25 people on this phone call to decide.
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4581 1 The Commission has authorized, by the 2 Administrative Procedure Act and 10 CFR 2.109, we are 3 authorized by law to operate under timely renewal 4 until the application has been finally determined. So 5 I think we may be straying into an area that really is 6 something that the Commission should be directing.
7 CHAIRMAN MCDADE: Well, I'm sure you'll be 8 glad to hear that I agree with you fully on that and 9 that this will be an issue to be cited by the 10 Commission as to when the application has been finally 11 determined.
12 And hopefully, when we do get the order, 13 there will be some guidance to us as to whether or not 14 we have reached that point or if not.
15 What I'm trying to get from the parties is 16 just their view on what this Board should do, to use 17 the language that Mr. Sipos, more succinctly than I, 18 said is it game over if the Commission rules for the 19 intervenors on any appeal from the standpoint of the 20 Board.
21 And, you know, what the Commission does is 22 what the Commission does. And I'm only concerned with 23 what the Board does. But if the Commission rules for 24 any of the intervenors, from the Board standpoint, is 25 it game over? Or do we continue to adjudicate NY-25, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4582 1 NY-26, NY-38 and Riverkeeper 8 as well as all of the 2 contentions that are currently held in abeyance.
3 MR. TURK: Your Honor, Sherwin Turk for 4 the staff. May I address the question?
5 CHAIRMAN MCDADE: Please.
6 MR. TURK: What I am going to say will 7 probably not be pleasing to you, Your Honor. So I 8 apologize in advance. But in this type of proceeding, 9 in a license renewal proceeding, the Board's 10 jurisdiction pertains only to the contested issues 11 before it.
12 The Board does not have plenary decision-13 making authority as to whether or not the license 14 should be issued. That's something that rests with 15 the Commission. So I would suggest that the issues 16 for this Board to decide are the contentions that are 17 placed before it.
18 CHAIRMAN MCDADE: And currently, Mr. Turk, 19 we have NY-25, NY-26, NY-38, RK-EC-8, NY-39, RK-EC-9, 20 Clearwater's 4 and 10. And I take it, from what 21 you're saying, it is the staff's position that, 22 regardless of what the Commission does on the appeal, 23 it is incumbent on the Board to proceed forward and 24 make factual determinations and adjudicate those 25 remaining contentions. Is that the staff's position?
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4583 1 MR. TURK: Yes, with one clarification.
2 The only admitted contentions pending before you are 3 the three safety contentions, NY-25, NY-26, NY-38, and 4 forgive me, Riverkeeper, I know that your item to NY-5 26.
6 CHAIRMAN MCDADE: But we'll also have 7 before us contentions that we have not ruled on the 8 admissibility of --
9 MR. TURK: Yes, Your Honor.
10 CHAIRMAN MCDADE: -- and then, based on 11 Commission rulings, have held in abeyance, such as NY-12 39, Riverkeeper EC-9, the other ones. But the 13 question you're saying is that those contentions that 14 are still before us, either admitted or held in 15 abeyance, that regardless of what happens on the 16 appeal it is incumbent on the Board to move forward 17 and adjudicate those, correct?
18 MR. TURK: That would be the Board's role, 19 yes, Your Honor.
20 CHAIRMAN MCDADE: And does Entergy agree 21 with that?
22 MR. BESSETTE: Yes, Your Honor. But I 23 fully expect the Commission, in any decision, that 24 they would provide guidance on this matter. So I 25 don't think we'd be operating in a vacuum. But, yes, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4584 1 we agree.
2 CHAIRMAN MCDADE: New York?
3 MR. SIPOS: Your Honor, if I could respond 4 first, if I might, to something Mr. Bessette said a 5 few moments ago.
6 I think what Mr. Bessette said on behalf 7 of Entergy ignores, under the hypothetical that, Judge 8 McDade, you posited, in which the Commissioner affirms 9 the Board's rulings with respect to NY-8, or NY-35 and 10 NY-36, well, let's leave it with NY-8, to start with, 11 NY-8, that would be a determination by the Commission 12 that the plant is, you know, proceeding into the 13 period of extended operation, at least for Unit 2.
14 It already has extended into the period of 15 extended operation. That it's in the period of 16 extended operation without having done an aging 17 management review or aging management program for 18 transformers. So I think that's an important 19 consideration to keep in mind.
20 Coming back to the question you just asked 21 Mr. Turk, and I believe Mr. Bessette, as to the 22 Board's jurisdiction, the State is not intimately 23 familiar with all the nuances regarding the Board's 24 jurisdiction.
25 But certainly the Board would have NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4585 1 jurisdiction. I think we would agree that the Board 2 does have jurisdiction over contentions that have been 3 either presented to it for determination as to 4 admissibility or contentions which have been accepted 5 by the Board and which are proceeding towards an 6 adjudicatory hearing.
7 CHAIRMAN MCDADE: Okay. And does any 8 party disagree with the proposition that, whether or 9 not the continuation of the license under 2.109(b) 10 would be an issue for the Commission alone and not an 11 issue for the Board? Does anyone disagree with that 12 proposition?
13 MS. DELUCA: Your Honor, on behalf of the 14 State of New York, I think it would sort of, this is 15 Kathryn Deluca, and I think it would depend on the 16 actual Commission ruling and how all of that sort of 17 would come into play.
18 I think it's difficult to sort of say 19 hypothetically, you know, who would have jurisdiction 20 and how that would come out, especially with respect 21 to NY-35 and NY-36. Because we don't even know what 22 the status of that review is and when the FSEIS is 23 coming out, how that would affect the contentions. So 24 a lot of it is sort of up in the air right now. So I 25 don't --
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4586 1 CHAIRMAN MCDADE: Yes. But I take it that 2 all of the parties, as Mr. Bessette, I believe, 3 pointed out, Entergy did submit additional engineering 4 reports on this issue a year, a year and a half ago.
5 And there would seemingly be a fundamental 6 unfairness if, without the adequacy of that being 7 considered, the plant was directed to be closed down.
8 But nevertheless, that would be an issue for the 9 Commission.
10 At the other end of the spectrum is the 11 question that I raised at the beginning of this 12 conference which is the right to a meaningful hearing, 13 in other words, having factual issues resolved in a 14 timely fashion, particularly given the fact that we 15 are in a period of extended operation where the 16 original license for Unit 2 has expired.
17 In the most recent submission by the 18 staff, you indicated that a schedule for the 19 publication of a supplement to the FSEIS on this 20 matter, the schedule will be published in the near 21 future, not that the FSEIS will be published in the 22 near future.
23 Mr. Turk, can you offer us anything to 24 explain what that means, what, from the staff 25 standpoint, the near future is? Is that, you know, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4587 1 this year, this decade? And what needs to be done?
2 You know, it seems like this, as I said, 3 this information was submitted well more than a year 4 ago. Do we have an additional one hour of review, ten 5 hours5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br /> of review, 100 hours0.00116 days <br />0.0278 hours <br />1.653439e-4 weeks <br />3.805e-5 months <br /> of review that goes into 6 this?
7 Because, as I said, what bothers the Board 8 is it appears that the, you know, and again, being 9 fair to the Applicant, who submitted this information 10 and seemingly has a right to have it considered in its 11 application, but the intervenors have a right to 12 resolve this issue in a timely fashion.
13 So, Mr. Turk, what are we looking at when 14 you say the schedule will be published in the near 15 future? Do you mean July of 2014?
16 MR. TURK: Your Honor, first of all, let 17 me say I appreciate your great interest in this. I 18 know that it's a matter of concern to the Board in 19 understanding what the staff's review schedule is.
20 And let me preface what I'm about to say 21 on the schedule with a little quick synopsis of 22 history. Your Honor mentioned that the application 23 was received in April of 2007. That is correct.
24 It was subsequently slightly amended in 25 the summer of 2007. The staff then docketed the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4588 1 application, finding it to be sufficiently complete 2 for our reviews to commence. We did issue our SER in 3 2009. At that point, all safety issues were deemed to 4 have been resolved.
5 We issued our final SEIS in December of 6 2010. At that time, we determined that all 7 environmental issues had been resolved.
8 What happened after that is that we 9 received new information, in some instances from the 10 Applicant. For instance, they submitted new aquatic 11 impact information twice. We also received new 12 information from the Applicant on its engineering 13 project costs for implementation of SAMAs following 14 the Board's decision on Contention NY-35, NY-36.
15 So that was new information that the staff 16 then had to undertake to review after the initial 17 review of all information that had been docketed 18 originally had been completed.
19 So I'd like to comment on the Board's 20 finding and its order that the staff's review has 21 lingered. Perhaps I would say that it hasn't been 22 lingering so much as it had been completed and then 23 had to become restarted to consider new information.
24 And that applies also to other matters.
25 As Your Honor mentioned, there are several contentions NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4589 1 pending before us having to do with the waste 2 confidence decision update. The Commission has 3 directed that such contentions be held in abeyance 4 pending the Commission's review of the waste 5 confidence issue on a generic basis.
6 So whatever happens with the generic 7 rulemaking will then determine what the Board should 8 do with those contentions, whether they're to be 9 dismissed or resolved on a case-specific basis.
10 So anyway, what I'm trying to say is that 11 new information came up following the issuance of our 12 review documents. And that's what's caused the review 13 to be reinitiated and to take longer than we had 14 initially anticipated when we issued the final review 15 documents.
16 CHAIRMAN MCDADE: Now, I understand that.
17 And, you know, I understand that it is necessary for 18 the staff to do a thorough review. Again, my concern 19 is, you know, we're in the period of extended 20 operation.
21 They've only asked for an additional 20 22 years. You know, we could wind up having those 20 23 years pass while we're still adjudicating this matter 24 which would then, you know, totally deny any 25 meaningful right to a hearing.
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4590 1 It was May of 2013 that these additional 2 reports were submitted. And I guess what I'm looking 3 for is an idea of when these initial reports are 4 submitted. Is this something that would require 100 5 man hours to complete the review, 1,000 man hours to 6 complete the review? Where are we along that line?
7 Is this something, you know, to make it 8 clear for the record and anybody who's looking at 9 this, whether it be the Commission or the Second 10 Circuit, is there something that the Commission has 11 dozens of engineers looking at? Or is it something 12 that one person is looking at two hours a week?
13 And either, Mr. Turk, or you indicated 14 that you had staff with you on the line, I guess what 15 I'm looking for is can you give us an idea of when is 16 the schedule going to be published and when, to the 17 degree that you can, can we expect to see the 18 supplement to the FSEIS?
19 MR. TURK: Your Honor, the staff currently 20 expects to issue a schedule for the FSEIS publication 21 this fall. So I don't know exactly when that will 22 occur. But that's the expectation for publishing a 23 schedule.
24 CHAIRMAN MCDADE: And would the schedule 25 then be, you know -- and I guess that leads to another NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4591 1 question we raised in the order. And again, I mean, 2 trying to make sure that there's a meaningful right to 3 a hearing, and yet also make sure that Entergy has the 4 right to be presented up-to-date information to be 5 considered in our decision, you know, if the schedule 6 is going to be published this fall of 2014, and the 7 schedule is we expect the supplement to be issued in 8 the fall of 2016, is there a point at which it would 9 be appropriate for the Board to say that's not part of 10 the proceedings?
11 If this is going to be considered, it'll 12 be considered as a supplement to the application that 13 would require a different Board and a different 14 proceeding as an amendment to the application.
15 And again, if that were the case, then we 16 would say, look, we're not going to consider it, 17 because this proceeding is just dragging on too long.
18 There's a denial of a meaningful right to a hearing.
19 What would be the impact of that under 2.109(b)?
20 I mean, could we find ourselves, you know, 21 the request for a renewed application on Unit 2 runs 22 out in 2033. Could we be sitting here in 2032 still 23 waiting for the publication of the supplement to the 24 FSEIS?
25 And I guess, again, what I'm asking, you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4592 1 say it'll be published this fall. It seems like 2 publishing a schedule should take about 15 minutes.
3 It seems like, given the fact that the staff has had 4 this for well over a year, there should be some 5 reasonable concept of where they are in the review 6 process.
7 Are they at the beginning, or are they in 8 the middle or are they almost at the end? I'm looking 9 to find out. And I think the intervenors and the 10 public have a right to know what is a reasonable 11 expectation where this will be, the record will be 12 available, the staff review document will be available 13 for this. Mr. Turk?
14 MR. TURK: Thank you, Your Honor. You 15 asked several questions there. First of all, with 16 respect to the Board's termination of its 17 jurisdiction, once you resolve all admitted 18 contentions so that there's nothing left pending 19 before you, all jurisdiction would have transferred to 20 the Commission.
21 The Commission, if there's later a motion 22 to reopen or new information that requires resolution, 23 the Commission could then remand to you. Or the 24 Commission could set up a different Atomic Safety and 25 Licensing Board. But, as I mentioned previously, the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4593 1 Board's role is to decide admitted contentions.
2 With respect to the staff's review 3 schedule, while I understand your interest and your 4 concern, there are long standing case precedents with 5 directions by the Commission which indicate that the 6 Board's function is to decide admitted contentions, 7 not to direct the staff in the performance of its 8 review.
9 For example, in 2004 the Commission 10 decided Duke Energy Corporation could solve a case, it 11 was CLI-04-06, I believe, in which the Commission 12 clearly said, "Licensing boards simply", and I'm 13 quoting here, "Licensing boards simply have no 14 jurisdiction over non-adjudicatory activities of the 15 staff that the Commission has clearly assigned to 16 other offices unless the Commission itself grants that 17 jurisdiction to the Board."
18 CHAIRMAN MCDADE: Mr. Turk, I'm fully 19 aware that I do not have the authority. If I had, 20 we'd probably be in a different position right now to 21 direct that the supplement be filed by a given date.
22 What I am trying to find out from the 23 staff is where are you in the review process? You've 24 had this information for well over a year. Are you 25 ten percent into the review process? Are you 98 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4594 1 percent into the review process? Is it reasonable to 2 anticipate that that review will be completed by a 3 particular date?
4 You have the staff people present with 5 you. Why don't you put the phone on mute for a minute 6 and see if you can give us any further guidance as to 7 when it is likely that that will be published and 8 likewise, while you are on mute, if you can give us 9 any additional information?
10 Because the same description in your 11 letter of July 15th with regard to aquatic impacts had 12 to do with the "new schedule" will be in the near 13 future. So why don't you go on mute for a couple of 14 minutes, two or three minutes, and see whether or not 15 you can give us any other guidance in that area?
16 And then the next question to also address 17 when you come back is a matter of law. If this 18 lingers very long, what remedies does the Board have 19 and what remedies would be appropriate in order to 20 facilitate a timely, and perhaps we're already years 21 past the word timely, a timely resolution of this?
22 And I'll address that last question to 23 Entergy and New York as well after we come back. So 24 go on mute for three minutes and we'll hear from you 25 then.
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4595 1 MR. TURK: Thank you, Your Honor. We'll 2 come back to you in a few moments.
3 (Whereupon, the above-entitled matter went 4 of the record at 11:55 a.m. and resumed at 11:56 a.m.)
5 CHAIRMAN MCDADE: Okay, Mr. Turk?
6 MR. TURK: Yes. Thank you, Your Honor.
7 In my letter of July 15, I mentioned that there were 8 two specific items that will be addressed in the FSEIS 9 supplement. And I also said there will be other 10 matters.
11 The two that I pointed out to the Board 12 involved the engineering project cost information for 13 SAMA purposes and the aquatic impact information.
14 There are a number of other matters that may be 15 addressed in the FSEIS supplement, depending on their 16 status at the time that the FSEIS supplement is ready 17 for publication.
18 So there are a number of different issues 19 that are under review. A schedule will be developed 20 for publication of the FSEIS once it is more clear 21 what issues will be specifically addressed in that 22 FSEIS supplement. And --
23 CHAIRMAN MCDADE: And let me ask a very 24 specific question, and if you can't answer it now to 25 report back to us in writing by Monday, with regard to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4596 1 the May 6, 2013, engineering reports. And just 2 explain it in writing by Monday, what the review has 3 entailed.
4 How many people have been working on it?
5 How many man hours have been spent on it up to this 6 point in time? How many man hours need to be spent 7 before the review of that will be finalized in order 8 to submit that information into a FSEIS so that we 9 have some idea whether or not we are looking at being 10 able to move forward on this in 2014, 2015, 2020, 11 2030?
12 Looking at the information that was 13 submitted in May of 2013, it doesn't appear, and I 14 don't purport to be the review engineer on this, it 15 doesn't appear that this is something that should take 16 years to review. Obviously it's not something that is 17 going to be reviewed in minutes or hours. But it 18 doesn't appear that it's something that should take 19 years.
20 And here we are well more than a year into 21 it. And I'm trying to get information as to whether 22 or not we're a quarter of the way through, half way 23 through, 90 percent through, so we can schedule what's 24 moving forward in this.
25 And what I'm getting is it'll come when it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4597 1 comes. So if you can report back, and since I don't 2 want it to be just simply vague, instead of one day of 3 next week by Friday of next week.
4 MR. TURK: Your Honor, I can address it, 5 sir, right now as we speak, so that you won't need to 6 wait for any further information.
7 CHAIRMAN MCDADE: Okay.
8 MR. TURK: I had previously mentioned, in 9 the last status report, that the staff had completed 10 its preliminary review of the information. So with 11 respect to that engineering cost information, we've 12 made substantial progress already.
13 We still have to have that preliminary 14 review finalized. It has to go through management.
15 There may be questions to Entergy. I don't know. But 16 in any event, we're expecting that this fall we'll be 17 able to give you a schedule for publication of the 18 FSEIS draft.
19 And I can tell you today that the FSEIS 20 supplements draft should be issued during the coming 21 year. It's not going to be 2020, it's not going to be 22 2032. It'll be in 2015.
23 CHAIRMAN MCDADE: And what about the issue 24 with regard to aquatic impacts?
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4598 1 to the Board, I indicated that the staff was looking 2 to put a contract in place to assist in its review of 3 the information. I can tell you that there is a 4 contract in place. And the staff's review is in 5 progress.
6 And again, that's something that we expect 7 to address in the FSEIS supplement which would be 8 issued in draft form in 2015.
9 CHAIRMAN MCDADE: Okay. I mean, this 10 information was submitted to the staff a considerable 11 time ago. Again, what I am looking for is, you know, 12 what is the staff's estimate? Is this kind of 13 information something that's going to take ten man 14 hours1.62037e-4 days <br />0.00389 hours <br />2.314815e-5 weeks <br />5.327e-6 months <br />, 100 man hours, 1,000 man hours to review.
15 I mean, on the face of it, it does not 16 look that complicated that it should take years. And, 17 you know, from the standpoint and whether this thing 18 is reviewed by the Commission or by the Second 19 Circuit, and the idea of the right to a meaningful 20 hearing, you know, when we are this far, when we are 21 more than seven years into the process, at what point 22 have intervenors been denied a meaningful hearing?
23 And I'm trying to figure out what, if any, 24 remedies the Board can impose and, at the same time, 25 recognize the validity of what Mr. Bessette said where NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4599 1 Entergy submitted this application, you know, more 2 than seven years before the expiration date.
3 They have been, you know, this most recent 4 information they submitted well more than a year ago.
5 And they should have a right to have a staff review of 6 that information be considered by the adjudicative 7 Board. But yet, the intervenors have a right to have 8 it considered timely.
9 So anyway, I think we've talked about that 10 as much. If the staff can supply any additional 11 information, and again, let me again ask you or more 12 specifically direct how many hours, you know, remain?
13 Now, you said that you put out a contract.
14 I assume the contract then specifies a, somebody had 15 a concept of how many hours that this review would 16 take if you're having to contract to do it. It's not 17 an open-ended contract where they could spend, you 18 know, 10,000 hours0 days <br />0 hours <br />0 weeks <br />0 months <br /> reviewing it. I assume it's a 19 contract for a particular number of hours.
20 So we should have some way of determining 21 when that will be completed. And likewise, you know, 22 I don't know what the term preliminary review is.
23 MR. TURK: Your Honor, may I respond 24 briefly? First, let me note that there is no 25 contention pending before you. And there has not been NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4600 1 a contention pending before you regarding aquatic 2 species.
3 CHAIRMAN MCDADE: Mr. Turk, I understand 4 that, okay. There was a contention before us. The 5 contention had validity. The contention, it was 6 purported to be cured by actions that were 7 subsequently taken.
8 We told Riverkeeper to hold off on filing 9 any new or amended contentions based on the new 10 information about aquatic impacts. So this thing is 11 effectively held in abeyance.
12 And what we are trying to do is to work 13 out a reasonable schedule, and reasonable may be, you 14 know, well past the possibility, but a schedule for 15 the resolution of the contentions that are in front of 16 us.
17 And, I mean, you've indicated, you know, 18 with aquatic impacts, the fall of 2014. Now, is that 19 realistic, you know, is that what the contract says?
20 You can read the transcript. I'll read 21 the transcript after we get done with this and see 22 what, if any, of those questions that you can answer 23 and also if any of the intervenors are of a mind to 24 file any briefing suggestions as to what actions, if 25 any, the Board can take in order to expedite this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4601 1 proceeding that's already seven years off.
2 With regard to any other contentions that 3 are out there, with regard to NY-25, as I understand 4 it, it's the most recent as of your July 1st status 5 report. We can expect a supplement to the SER in 6 November of 2014. Is that still the case?
7 MR. TURK: Your Honor, there is new 8 information on the safety factor I'd like to get to.
9 But if I may, I'd like to just complete my thought on 10 that previous contention, previous issue, and then 11 move to the safety side.
12 Your Honor, I think my recollection is 13 different from yours. You did not defer the filing of 14 contentions on aquatic impact. That had to do with 15 endangered species. And that issue has now been 16 resolved.
17 The new aquatic information that we're 18 looking at does not involve endangered species. It 19 involves several other species in the river. And that 20 information was the subject of the FSEIS supplement 21 that was issued back in 2013.
22 And that's the information that the 23 Applicant has now modified in its February 24, 2014, 24 submittal. And that's the new information that would 25 be looked at in the FSEIS supplement. That does not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4602 1 involve endangered species. So there is no issue 2 before you that's been deferred or in any way held off 3 by the Board relating to this matter.
4 CHAIRMAN MCDADE: But you are going to be 5 filing, in your status report, you indicated that that 6 would be part of a supplement to the EIS?
7 MR. TURK: Correct.
8 CHAIRMAN MCDADE: And based on our 9 previous orders, generally speaking, parties would 10 have 60 days after the filing of the supplement to the 11 EIS or an SER to file new or amended contentions. And 12 that being the case, and hoping to resolve this matter 13 as promptly as possible, is why the Board is concerned 14 about the schedule for that.
15 Going to NY-25, is the still projected 16 date for the supplement addressing AMPs that would 17 implicate NY-25, NY-26 and NY-38 still scheduled for 18 November of 2014?
19 MR. TURK: Your Honor, I can't commit to 20 November at this point, because there is new 21 information.
22 CHAIRMAN MCDADE: New information that 23 came in since July 1st when you made that 24 representation?
25 MR. TURK: New information that has come NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4603 1 in since then and new information that we're waiting 2 to receive. And let me back up for a moment and say 3 that the entire issue of the reactor vessel internal 4 AMP is an issue that arose following publication of 5 the SER in 2009.
6 This has to do with a generic issue that 7 has been looked at for many plants. Entergy received 8 notice from the staff that we're looking for them to 9 do more. We've been in communication with Entergy, 10 most recently on the 16th of July, just yesterday.
11 There was a further conference call with 12 Entergy in which the staff indicated it's looking for 13 clarification of Entergy's prior response to staff 14 requests for additional information.
15 In the conference call yesterday, Entergy 16 indicated that it will amend its prior response to the 17 RAIs. But they were not able to give us a date for 18 submittal of that amendment response as yet. So I 19 can't tell you today when we'll receive their amended 20 RAI response.
21 MR. BESSETTE: Your Honor, this is Paul 22 Bessette. I can jump in. Our goal is to meet the 23 date for our response that was documented in the 24 staff's July 1st notice which would be by August 7th.
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4604 1 yesterday. We're going to make every effort to meet 2 that date which we would hope would allow the SER to 3 be published as predicted.
4 CHAIRMAN MCDADE: In November of 2014?
5 MR. BESSETTE: Yes.
6 CHAIRMAN MCDADE: Okay. Mr. Bessette, and 7 then to Mr. Sipos after that, what is your view of the 8 authority of the Board in order to resolve this 9 proceeding to set a cut-off date to say that we will 10 consider any information considered in staff review 11 documents as of a particular date?
12 Anything that is submitted later than that 13 simply won't be considered by the Board. We will rule 14 on the adequacy of the application in the review based 15 on what's submitted and that anything submitted after 16 that date would be viewed as an amendment to the 17 application that would require the filing of a new 18 notice of a hearing. And it would then be up to the 19 Commission how to treat that under 2.101(b). Mr.
20 Bessette, what's your view on that?
21 MR. BESSETTE: Your Honor, I frankly have 22 not looked at that in any detail. I would think that 23 would be maybe an issue of first impression. In fact, 24 I would recommend the Board perhaps seek guidance from 25 the Commission on such an issue.
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4605 1 If there is a particular request for a 2 briefing, we could do it. But I think that direction 3 should be coming from the Commission.
4 We believe we have submitted a complete 5 application in 2007. We've been actively prosecuting 6 that application, responding in a timely manner to all 7 additional requests and to issues raised by 8 intervenors. So we do not believe there really is an 9 end to the proceeding if there is a good faith 10 prosecution of the application.
11 You know, if the Board has other reasons 12 for perhaps wanting to end its involvement, again, I 13 think that would be best addressed with the 14 Commission. But I can't see any legal basis to set up 15 a cut-off date if there is an ongoing good faith 16 prosecution of the application, including issues, 17 generic issues that come up from the industry.
18 CHAIRMAN MCDADE: Mr. Bessette, do you 19 appreciate the concern of the Board that the 20 intervenors, and taking for the sake of argument, and 21 I don't suggest otherwise, that Entergy is acting 22 totally in good faith, they submitted an application, 23 they have been responding to questions by the 24 Commission. They have been responding in a timely 25 fashion to those questions and, as I indicated NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4606 1 earlier, certainly understand the dire and the 2 interest of the Applicant in having this appropriately 3 reviewed.
4 But if there is to be a meaningful right 5 to a hearing, you know, could we find ourselves 15 6 years, 20 years down the road, and finally we all 7 simply terminate the proceeding?
8 Because as of September 28th or December 9 12th, 2035, the period asked for in the period of 10 extended operation is up. And we're still in a period 11 of the staff asking additional questions from Entergy, 12 Entergy replying to those questions, the staff asking 13 additional questions, additional review documents 14 being anticipated, published, anticipated again and 15 published.
16 And we get through this entire proceeding 17 without an adjudication of the genuine issues of law 18 and fact that were raised by the intervenors. And my 19 question is how do we avoid that? Mr. Bessette?
20 MR. BESSETTE: Your Honor, I certainly 21 appreciate your question and fully understand the 22 frustration of the Board.
23 As an initial matter, I think we should 24 proceed, assuming the SER is issued in November, I 25 think we should proceed on the hearing on those safety NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4607 1 matters. Staff noted those contentions are pending 2 before the Board, they're active. And I believe the 3 SER supplement will wrap those issues up, and we 4 should proceed to a hearing on those matters.
5 So therefore, the intervenors would have 6 a timely hearing so they could present the SER 7 addition in November on those matters. So we 8 shouldn't delay those. We should move forward on 9 those, get those issues resolved and, to the extent 10 any other issues are raised on environmental issues, 11 we can address them.
12 CHAIRMAN MCDADE: So it would be your view 13 that we should assume for the sake of argument, and 14 Mr. Turk's called into question whether or not the 7 15 November '14 date is realistic, but that once the 16 supplement to the SER issues, we should set a 17 reasonable period of time for filing any new or 18 amended contentions based on that and then, based on 19 our rulings on any new or amended contentions, move 20 directly ahead to resolve NY-25, NY-26, NY-38 and RK-21 TC-5. That's the position of Entergy?
22 MR. BESSETTE: Yes, it is, Your Honor.
23 And in fact, I think the parties could even get 24 together and try to resolve some of those issues.
25 Because a lot has changed since that time. So yes, I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4608 1 believe we should move forward on those, and I think 2 that's the best path for all parties, including 3 intervenors on those issues.
4 MR. TURK: Your Honor, this is Sherwin 5 Turk. And I say that I agree with Mr. Bessette and 6 would like to suggest an amendment to what he said.
7 And that is I think there's no reason why the parties 8 cannot begin to speak with each other now to come up 9 with a joint proposal for Your Honors to consider in 10 terms of the filing of any remaining testimony, 11 statements of position and exhibits on the safety 12 contentions so that we have a schedule in place for 13 the hearing to be targeted from the date that the SER 14 actually, SER supplement actually issues.
15 We'll know ahead of time that when the SER 16 supplement issues, there's the schedule for the next 17 six months for the adjudication.
18 CHAIRMAN MCDADE: Certainly we would not 19 discourage the parties from talking to each other to 20 try to resolve anything.
21 From New York, what is your reaction to 22 what Mr. Bessette suggested, which is that it would be 23 appropriate to move ahead with a resolution on NY-25, 24 NY-25 and NY-38 and TC-5, setting a schedule as soon 25 as that FSEIS comes out or FSEIR, FSEIS?
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4609 1 MR. SIPOS: Or perhaps SER or supplement, 2 second supplement to the SER, Your Honor. Perhaps --
3 CHAIRMAN MCDADE: At this point, you might 4 be talking 102nd supplement, but --
5 MR. SIPOS: Yes, Your Honor, this is John 6 Sipos for the State of New York. And I really, on 7 behalf of the State, I think I must address the 8 suggestion that Mr. Bessette and Mr. Turk have just 9 made.
10 The State has, you know, has followed this 11 Board's orders and has, you know, sought to comport 12 itself with the schedules that Your Honors have set, 13 in that the parties have negotiated, that is for sure.
14 But what has happened here, and just to 15 provide some context, the State went forward and 16 filed, pre-filed testimony back in, I believe it was 17 December of 2011. And so now we're at three years, 18 two and a half years beyond that. And if the SER 19 comes out, as Mr. Bessette believes it will come out, 20 in November, you know, we'll be closing in on three 21 years.
22 And I cannot overemphasize that the State 23 is very concerned that it will be given a short amount 24 of time to marshal its response and move forward.
25 Where the staff has had two-plus years, apparently NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4610 1 there have been discussions between Entergy and NRC 2 staff, the State is not allowed to participate in 3 those. There has been, perhaps as Mr. Bessette has 4 intimated, there have been changing situations.
5 And I think if there is a concern about a 6 meaningful opportunity for a hearing, the State wishes 7 to ensure that it has a meaningful opportunity to 8 prepare, and sift through and analyze this material 9 before people start making schedules and saying, oh, 10 hurry up, State.
11 I mean, you know, we have tried to comply 12 with the orders. And these are important issues, NY-13 25, NY-26 and NY-38, all of them, all the contentions 14 were, I'm not intending to diminish them. But these 15 are very important issues. And, you know, we'll need 16 to work with our experts.
17 CHAIRMAN MCDADE: Okay. Mr. Sipos, let me 18 just interrupt you on that. And I think this should 19 not be a concern for the State. The Board recognizes 20 that if these matters are as complex that it requires 21 years for the professional staff of the NRC to analyze 22 it and prepare a report, that it would be unfair to 23 require the State of New York, which does not have the 24 same resources in-house, to act in an inappropriately 25 expedited fashion.
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4611 1 It is the State and the public that are, 2 in my view, adversely affected by further delay. But 3 while we want to move ahead expeditiously, it is 4 likewise important that the State of New York have a 5 full opportunity to analyze what Entergy has 6 submitted, what the staff has reviewed, has developed 7 from that and to find appropriate experts to analyze 8 it.
9 So we are not going to force the State to 10 move ahead inappropriately, starting with the basic 11 premise that, given how long it has taken the 12 professional staff of the agency to review this, that 13 this is a matter that is sufficiently complex that we 14 would be predisposed to giving the State any 15 reasonable request for time in which to resolve this.
16 And again, with the idea that we are in 17 the period of extended operation, and it's the 18 intervenors' right to a meaningful hearing that the 19 Board views as being implicated by the lengthy period 20 of time that this proceeding has continued so far and 21 appears destined to continue in the future.
22 Let me go back and move on to something 23 else. We don't have before us anything with regard to 24 the Coastal Zone Management Act. In New York's 25 letter, most recent letter of July 3rd, you indicate NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4612 1 that there is a scheduled oral argument before the New 2 York Appellate Division this fall. Mr. Sipos, what is 3 the issue in that appeal?
4 MR. SIPOS: Your Honor, John Sipos. If I 5 may, I'd like to turn it over to Assistant Attorney 6 General Lisa Burianek, B-U-R-I-A-N-E-K, as she has 7 been the lead Attorney on those matters.
8 CHAIRMAN MCDADE: Okay, thank you.
9 MS. BURIANEK: Thank you, Judge, Lisa 10 Burianek. The issue before the Appellate Division has 11 to do with, there is an Article 78 proceeding. It was 12 involving a declaratory ruling petition filed by 13 Entergy with the New York State Department of State, 14 which is the State agency designated by Department of 15 Commerce to undertake Federal consistency 16 determination on behalf, in this kind of context with 17 the license renewal proceeding and other Federal 18 permits.
19 The issue before the Court has to do with 20 whether or not Entergy may take advantage of a 21 language regarding grandfathering of facilities for 22 review under the Coastal Management Plan.
23 And at the trial court level, Entergy's 24 petition was, and they appealed to the Appellate 25 Division, that matter is now scheduled for argument in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4613 1 October 2014.
2 CHAIRMAN MCDADE: Okay. And based on your 3 experience, if it were argued in October of 2014, when 4 would it be reasonable to expect a decision?
5 MS. BURIANEK: Entergy sought a 6 preference, which means that they wanted to accelerate 7 the matter being calendared with the preference. The 8 Court will also understand that the matter is of 9 pressing interest to Entergy and the State.
10 As the Board may be aware, the Department 11 of State and Entergy are currently working through 12 issues relating to the Coastal Management Review that 13 has been underway. And the current date for that 14 review to issue by the Department of State is December 15 31st of this year.
16 CHAIRMAN MCDADE: Right. And that was 17 indicated in the July 3rd letter. And what I wanted 18 to get clarified in my own mind is how do these two 19 link, this decision by the Department of State and the 20 decision by the Appellate Division. Is the --
21 MS. BURIANEK: The Appellate Division will 22 determine whether or not that grandfathering language 23 can be taken advantage of by Entergy, whether they are 24 subject to it or not. The State's position, 25 Department of State's position is that it does not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4614 1 apply to Entergy.
2 CHAIRMAN MCDADE: Okay. And if the 3 Appellate Court agrees with Entergy, does that 4 abrogate the need for the December 31st decision? Or, 5 yes, how will it impact that?
6 MS. BURIANEK: No. The Appellate Division 7 is an intermediate Appellate Court. I would 8 anticipate that, regardless of the decision, either 9 the State or Entergy will seek additional review by 10 the New York State Court of Appeals of any adverse 11 decision.
12 And the time frame for that, I can't tell 13 you what that would be. But my sense is that we will 14 likely have a decision by the Appellate Division by 15 the end of the year.
16 CHAIRMAN MCDADE: Okay. And from Entergy, 17 two things. One, do you disagree with any of the sort 18 of procedural description that was just given? And do 19 you agree that, until that comes to rest, it would be 20 premature for the filing of any contention, based on 21 coastal zone management issues?
22 MR. BESSETTE: Your Honor, this is Paul 23 Bessette. I'm going to turn this over to Mr.
24 Burchfield to discuss that matter.
25 MR. BURCHFIELD: Good afternoon, Your NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4615 1 Honor. We do not disagree with the procedural 2 description that Ms. Burianek gave. Although we think 3 it may be optimistic to expect a final decision from 4 the Appellate Division by the end of this year.
5 That's obviously completely within the 6 discretion of the judges, and they will decide the 7 matter when they're ready to decide it. So 8 predictions in this area are always somewhat 9 hazardous. But that sounds a little bit aggressive to 10 us.
11 On your second question as to whether a 12 contention on the CZMA issues would be appropriate 13 before a final resolution of the grandfathering issues 14 in the New York courts, that is a difficult procedural 15 issue.
16 And I would say that, in Entergy's view, 17 grandfathering would represent an independent basis 18 upon which to fulfill the CZMA requirements. And if 19 the court, your courts were to agree with Entergy, 20 that would constitute satisfaction of the CZMA 21 requirement, in Entergy's view.
22 To the degree that that affects the 23 ongoing proceedings here before the Board, that 24 procedure would have to play out according to the 25 Board's own procedures.
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4616 1 CHAIRMAN MCDADE: Okay. Thank you. The 2 next, in New York's July 3rd letter, there was a 3 reference made to the Danskammer Electric Generating 4 Facility.
5 And Mr. Sipos or someone else from New 6 York, that information you provided, how does that 7 have a potential impact on anything the Board might 8 do? Or was that just sort of background information, 9 you know, FYI?
10 MR. SIPOS: Your Honor, John Sipos. That 11 was provided to the Board and to the parties as 12 background information. It was a very recent decision 13 by the New York State Department of Environmental 14 Conservation.
15 The Danskammer facility had 16 documents regarding -- it, I think, from to time had 17 been the subject of disclosures, I can recall, I 18 believe at least one document that we disclosed, the 19 State disclosed regarding Danskammer.
20 Danskammer was damaged or went offline in 21 late 2012. But there is an initiative now to bring it 22 back online. I believe it's rated at 495 megawatts.
23 And DEC has precluded the use of coal as a fuel there.
24 So I know it was really for the Board's 25 background, also for the parties' background, staff's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4617 1 background. You know, perhaps it is a vestige of 2 Contention 37. As it was a late-breaking item, we 3 thought we should put it in there for everyone's 4 knowledge.
5 CHAIRMAN MCDADE: Okay. The next has to 6 do with the, the next information talking about the 7 updated seismic hazard analysis. And the question is, 8 and let me ask first of all of New York, then the 9 staff, then Entergy, how would this matter come before 10 the Board, if at all?
11 I mean, is this something having to do 12 with any change in event sequence in SAMAs? Or is 13 there some other way that this thing would come before 14 the Board?
15 MR. SIPOS: Your Honor, John Sipos for the 16 State of New York. I guess it is conceivably possible 17 that this matter could come before the Board, as I 18 understand it. And I am no expert.
19 The new recently developed ground motion 20 curves appear to be different, appear to be different 21 than the earthquake that was anticipated and was 22 developed as part of a proceeding back in the 1970s.
23 The State, back in 2007, did present 24 various contentions regarding seismic issues 25 including, for example but not limited to contentions NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4618 1 NY-14 and NY-15. Your Honors, in the July 2008 2 ruling, declined to admit those contentions. But this 3 is new evolving information that, you know, 4 conceivably could have an impact here.
5 CHAIRMAN MCDADE: Okay. But what it have 6 an impact, would it require, given the fact that the, 7 you know, several years ago now the Board declined to 8 admit NY-14 and NY-15. Would New York have to file 9 new contentions?
10 Or is this part, as I said, of event 11 sequencing in the SAMA contentions that we have 12 resolved, that could come back again in the, you know, 13 upcoming FSEIS or supplement? Or is it something that 14 New York would have to file new seismic intentions 15 based on new information? And if so, what would be a 16 deadline for the filing of those or should be a 17 deadline?
18 MR. SIPOS: Your Honor, John Sipos. These 19 new curbs, as I understand the chronology, were the 20 result of an order from, I believe, March, a 21 Commissioner order or directive from, I believe, in 22 the neighborhood of March 2012, apparently one year 23 after the Japanese earthquake.
24 The State wishes or would like the 25 opportunity to review this material which, you know, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4619 1 has been produced only recently and would like the 2 opportunity, based on that review, to interact with 3 experts and make a determination.
4 Sitting here today, I personally am not in 5 a position to chart a path forward or a specific time 6 line forward on it. It does, to my personal 7 understanding, seem to reflect a new understanding of 8 the seismic profile near the Indian Point Power 9 Plants.
10 CHAIRMAN MCDADE: At this point, would New 11 York have any objection to having a deadline? I'm not 12 establishing one at this point in time, but a deadline 13 for the filing of the new contention based on new 14 seismic issues at the same time as any new or amended 15 contentions based on the hopeful November 2014 16 supplement. Would that seem to be a reasonable 17 schedule?
18 MR. SIPOS: I appreciate that, Your Honor.
19 I would have to double check with my management. You 20 know, the fall may or may not be a busy time, given 21 several items that Mr. Bessette and Mr. Turk have 22 noted. They're busy in terms of, you know, technical 23 issues and also, given what appears to be the schedule 24 on the waste confidence rulemaking proceeding.
25 But I appreciate that question. And if we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4620 1 could have some time to consider that and respond to 2 the parties and Your Honor?
3 CHAIRMAN MCDADE: Okay. Mr. Bessette, is 4 it the position of Entergy that there are no seismic 5 issues currently before the Board and that it would 6 require the filing of a new contention in order to 7 bring it before the Board?
8 MR. BESSETTE: Yes, Your Honor. As you 9 noted, there are no contentions related to seismic 10 issues pending before the Board. And we will argue 11 that those issues are not within the scope of license 12 renewal.
13 We'd also argue that much of the 14 information that Mr. Sipos has stated has been out in 15 the public record for many months or years. So, 16 again, we fully agree that, if Mr. Sipos or New York 17 State wanted to bring these issues forward, they would 18 have the burden of raising them before the Board.
19 CHAIRMAN MCDADE: Part of that motion 20 would have to demonstrate that it was timely?
21 MR. BESSETTE: And within the scope of the 22 proceeding, that's correct.
23 CHAIRMAN MCDADE: Well, that's always the 24 case.
25 MR. BESSETTE: That's right, Your Honor.
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4621 1 And frankly, Mr. Sipos saying he needs some undefined 2 time to look at this further, we believe it would be 3 adverse to Entergy's rights for timely addressing this 4 issue, just much like we've been discussing here.
5 They don't get an indefinite time to decide if they 6 want to raise an issue.
7 MR. SIPOS: Your Honor, they've had two 8 years to work on this.
9 CHAIRMAN MCDADE: In any event, I think 10 there's a consensus both with New York and Entergy, 11 and, Mr. Turk, if you disagree chime in, that we don't 12 have seismic issues currently in front of us. That it 13 would require the filing of a new contention and, in 14 any motion for the admission of a new contention, the 15 moving party would have the burden of demonstrating 16 timeliness. Mr. Turk, do you have any objection with 17 that?
18 MR. TURK: I fully agree with you, Your 19 Honor.
20 CHAIRMAN MCDADE: Okay. Last issue, are 21 there any other issues, and perhaps addressing to Mr.
22 Sipos of New York, other issues that are out there 23 pending litigation with regard to Indian Point, such 24 as issues involving the taking of water from the 25 Hudson River, other issues that you can fill us in on, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4622 1 on where they stand now?
2 MR. SIPOS: Yes, Your Honor. Both Ms.
3 Burianek and I will address that. And Assistant 4 Attorney General Burianek will go first.
5 MS. BURIANEK: Judge, there's a second 6 State litigation matter that Entergy brought against 7 the Department of Environmental Conservation and the 8 Department of State.
9 It relates to a routine program change 10 undertaken by those agencies for purposes of the 11 Coastal Management Plan. It establishes or modifies 12 significant habitat determinations along the Hudson 13 River.
14 In this matter, as well as at the Trial 15 Court level, the decision was that Entergy's petition 16 was dismissed. That matter, Entergy has filed a 17 notice of appeal. And we have been speaking to 18 Counsel for Entergy, and they are in the process of 19 perfecting that appeal.
20 But it is unclear at this time when that 21 appeal will be completed, the briefing will be 22 completed. It has not been scheduled. And we do not 23 know yet when it will be argued. But it's also in the 24 hopper.
25 MR. SIPOS: Your Honor, I'm going to pick NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4623 1 up and hopefully respond to your question about the 2 water issues. It is my understanding that presently, 3 for the New York State Department of Environmental 4 Conservation, there are additional hearings that have 5 been identified or scheduled by the administrative law 6 judge overseeing that.
7 And those include some limited testimony 8 next week, that would be the week of July 21st, and a 9 day to be determined in September regarding closed 10 cycle pooling issues that there will also be 11 additional evidentiary hearings to be scheduled 12 regarding, excuse me, that there will also be 13 additional evidentiary hearings regarding a scheduled 14 temporary outage alternative concept.
15 And that will take place in January 2015.
16 And perhaps I should take another crack at explaining 17 that. By scheduled temporary outage, that would be, 18 as I understand it, that would involve one, or the 19 other or both plants going offline and not withdrawing 20 water from the Hudson River. As I understand it, that 21 is a topic or an alternative that's being examined in 22 the hearing.
23 And then it is also my understanding that 24 there will be additional evidentiary hearings on 25 endangered species and possibly thermal impacts at a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4624 1 later date in 2015.
2 And then, at some point, the proceeding 3 will be reviewed by the administrative law judge and, 4 you know, possibly on up to the designated decision 5 making officer at the Department of Environmental 6 Conservation.
7 CHAIRMAN MCDADE: Okay, thank you. That 8 is all that I have. What I'd like to do right now is 9 two things. One, just go through the parties to see 10 whether or not anybody has anything else that they 11 want to raise at this particular status conference and 12 then put you on mute and discuss with my colleagues 13 whether or not either Judge Kennedy or Judge Wardwell 14 have other matters that they would like to inquire 15 into.
16 But at this point, Mr. Turk, does the 17 staff have anything else that they would like to 18 raise?
19 MR. TURK: Your Honor, the only thing I 20 would mention is I had expressed some uncertainty as 21 to whether the FSEIS supplement will issue in 22 November. And my reason for that is that we had not 23 yet seen Entergy's amended response to the RAIs.
24 So I don't want to leave November as a 25 firm date. It's possible that it could slip a little NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4625 1 bit to December. But if we can make November, we 2 certainly will try to do that.
3 CHAIRMAN MCDADE: And I believe Mr.
4 Bessette said that he anticipated those responses 5 would be in no later than August 7th. So hopefully, 6 that November date is realistic. And if it slips, 7 we'd ask you to advise us immediately if that's the 8 case.
9 MR. TURK: We certainly will do that, Your 10 Honor.
11 CHAIRMAN MCDADE: Anything further?
12 MR. TURK: Not for the staff, Your Honor.
13 CHAIRMAN MCDADE: Mr. Bessette, anything 14 further from Entergy?
15 MR. BESSETTE: Yes, Your Honor. I believe 16 Mr. Burchfield, I mean, one of the issues you raised 17 in your order for scheduling the telephonic conference 18 was a status of previous review.
19 And then after Mr. Burchfield is done, I'd 20 like to refer to Ms. Zoli to see if she has anything 21 to add to the State's summary of the other 22 proceedings. Mr. Burchfield?
23 MR. BURCHFIELD: Thank you, Mr. Bessette.
24 Your Honor, as the Board knows, last year the Board 25 dismissed without prejudice Entergy's motion for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4626 1 declaratory order on the question of whether certain 2 prior reviews of consistency by the Indian Point 3 facilities would satisfy the need for a Coastal Zone 4 Management Act certification in this proceeding.
5 That is yet another alternative means by 6 which Entergy could satisfy the CZMA requirements 7 without going through a full new consistency 8 certification process here. That's the December 31 9 deadline that Ms. Burianek referred to.
10 The status of the previous review matter 11 now is that it's before the staff for purposes of 12 consultation. Pursuant to the Board's order from last 13 year, the staff submitted requests, certain questions, 14 six questions to the State of New York last December.
15 The State of New York responded to those at the end of 16 May of this year.
17 Just this past Tuesday, July 15th, Entergy 18 responded to the New York responses to those 19 questions. And we understand, from the staff's most 20 recent status report, that some further questions may 21 be coming to both Entergy and the State on this issue, 22 on the previous review issue. And those would be 23 anticipated, I believe the staff said in September.
24 CHAIRMAN MCDADE: Okay. Thank you, Mr.
25 Burchfield.
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4627 1 MR. BESSETTE: Elise, do you have anything 2 to add?
3 MS. ZOLI: Yes. Mr. Martin's going to 4 speak first about SCFWH and then I will add just two 5 minor clarifications.
6 MR. MARTIN: All right, just very quickly, 7 Your Honors. Ms. Burianek mentioned a second hearing 8 or a second appeal which is before the Appellate 9 Division in New York concerning the designation of an 10 obstructed river next to Indian Point as a special 11 habitat under the CZMA.
12 She basically got the schedule for that 13 correct. We'll be perfecting our appeal in the next 14 few weeks. We would expect briefing to then occur 15 over that balance of this year, perhaps into early 16 next year. And I think there'll be a decision on that 17 in 2015.
18 One thing I also wanted to mention 19 concerning that habitat designation is that when it 20 was approved by NOAA, NOAA did report back to New York 21 State that the new habitat designation would not be 22 applicable to the license renewal process, and so 23 while that appeal is out there we're not really sure 24 what relevance it has, if at all, to this proceeding.
25 CHAIRMAN MCDADE: Okay. Thank you. Ms.
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4628 1 Zoli?
2 MS. ZOLI: Yes. Just two clarifications.
3 Mr. Sipos is absolutely correct that it is possible 4 that the Endangered Species Act concerns over one of 5 the state-listed sturgeon may occur, as may thermal 6 issues. Although the thermal issues have already been 7 resolved between the New York State DEC and Entergy.
8 And it is also possible that DSA issues 9 may be resolved between staff and Entergy. In 10 addition, there are a number of other related smaller 11 issues that have been yet resolved relating to interim 12 measures.
13 And we do not have a schedule for any of 14 those issues as of yet. But we would expect those to 15 occur after the likely trial of the outage issues in 16 January of next year.
17 In addition, I think that it's important, 18 particularly given what Mr. Sipos mentioned, about how 19 significant amount of future action in the water 20 quality proceedings will be done, including review by 21 the ASLJs, the ALJs, which is our adjudicatory 22 tribunal, and subsequently by the final decision 23 maker, the Commissioner.
24 But there also is a waiver claim with NRC 25 staff under the Federal Clean Water Act. And that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4629 1 relates to the timeliness provided for a State action 2 on water quality certs.
3 CHAIRMAN MCDADE: Okay. Thank you.
4 Anything else from any of the parties?
5 MR. SIPOS: Yes, Your Honor. This is John 6 Sipos. I believe the Assistant Attorney General 7 Deluca has a question. And then I have a few more.
8 MS. DELUCA: Your Honor, I just had a 9 question relating back to a topic we discussed 10 earlier. We would be interested to know whether 11 Entergy and/or NRC staff have begun aging management 12 review or development of an aging management program 13 for transformers.
14 CHAIRMAN MCDADE: Well, that's something 15 that you can discuss with them. It's really not part 16 of our proceeding. We don't have a transformer issue 17 before us anymore.
18 We ruled that they needed one. And, you 19 know, what happens, we sort of kicked around and would 20 anticipate that the Commission would give some 21 guidance when they rule. They will either rule that 22 an aging management plan was not necessary or that it 23 is. And they will give some guidance as to what 24 happens then and specifically, you know, how that 25 relates to continued operation under 2.109.
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4630 1 But I don't think this is something that 2 we, the Board, should be getting into. You know, 3 there's nothing before us with regard to that. If the 4 staff or Entergy wishes to respond, they can. If not, 5 they can respond after the Board rings off on the 6 status conference. Do you wish to respond, Mr. Turk 7 or Mr. Bessette?
8 MR. SIPOS: Your Honor -- oh, I'm sorry.
9 Go ahead.
10 CHAIRMAN MCDADE: Mr. Bessette, Mr. Turk, 11 did you want to respond to that, or do you want to 12 just talk with them after, as we get off the status 13 conference?
14 MR. BESSETTE: All right. Your Honor, I 15 believe our position is adequately documented in our 16 appeal to the Commission. And we concur with you, 17 it's not a matter that we need to raise with this 18 Board.
19 CHAIRMAN MCDADE: Okay. So you all are 20 going to stay on the line after we ring off in case 21 the court reporter has any questions. So you can 22 address that question to Entergy and the staff. And 23 they will decide to respond or not. But it's not a 24 matter that the Board has.
25 MS. DELUCA: Okay. Thank you, Your Honor.
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4631 1 CHAIRMAN MCDADE: Mr. Sipos, you had 2 something additional?
3 MR. SIPOS: I did. And just to follow-up 4 on what Ms. Deluca said, you know, we thought that 5 that was relevant to some of Your Honor's questions 6 that you had noted. But we will follow your 7 suggestion and take it up with Entergy.
8 There is another issue regarding some 9 language in NRC staff's July 15, 2014, letter to Your 10 Honors regarding the supplements or the draft 11 supplements to the environmental impact statement.
12 And Mr. Turk made some reference to it.
13 And it concerns the "other matters" phrase at the end 14 of the first paragraph. And Mr. Turk discussed SAMA 15 and he discussed aquatic issues.
16 But the State, as a "host state" for these 17 facilities, you know, within the Federal system, the 18 State is curious and is trying to determine what are 19 those other issues that could be or will be 20 incorporated in the draft supplemental environmental 21 impact statement.
22 CHAIRMAN MCDADE: Mr. Turk, can you give 23 us a brief outline of what those other matters will 24 entail?
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4632 1 in the call that when it is clear what the status of 2 different matters are, we'll be able to tell you 3 whether or not those will be addressed in the FSEIS 4 supplement. But today I cannot give Mr. Sipos or the 5 Board any further information.
6 CHAIRMAN MCDADE: So when you simply, the 7 phrase that you used, "and other matters," was just 8 simply a catch phrase that there could be other 9 matters, maybe yes, maybe no? But there haven't been 10 any specific matters identified as of today?
11 MR. TURK: That's correct, Your Honor.
12 But I can give you an example.
13 CHAIRMAN MCDADE: Please.
14 MR. TURK: The Commission has before it 15 numerous petitions concerning the waste confidence 16 decision update. We've projected all along that the 17 Commission should or is expected to conclude its 18 rulemaking proceeding in October. But if that happens 19 before the FSEIS supplement issue, then I would 20 imagine we'll address that, if necessary, in the FSEIS 21 supplement.
22 I can't tell you more. I don't know what 23 the Commission will do, and I don't' know if it'll 24 even be necessary to address it in and FSEIS 25 supplement. But that's an example of something that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4633 1 could or perhaps will not be addressed.
2 So I think we're best off at this point 3 simply to leave it at that and indicate to you that 4 those two issues which were of concern to the Board 5 will be addressed and other matters may be as well.
6 CHAIRMAN MCDADE: But as of this time, 7 there are no specific other matters that have 8 definitely been identified?
9 MR. TURK: That's correct.
10 CHAIRMAN MCDADE: Okay.
11 MR. SIPOS: And, Your Honor, I had one 12 last issue. It's a personal issue. I am scheduled to 13 take a vacation out of the country. And I will be out 14 of the office and without Blackberry or communication 15 starting on Saturday. And in my absence, Assistant 16 Attorney General Kathryn Deluca or Lisa Burianek will 17 be doing a fantastic job.
18 CHAIRMAN MCDADE: How long are you going 19 to be in that enviable position?
20 MR. SIPOS: For three weeks, 20 days, Your 21 Honor.
22 CHAIRMAN MCDADE: God bless you.
23 MR. SIPOS: Well, it's been, as Your Honor 24 has pointed out, it's been seven years on this 25 proceeding. And it's our first vacation overseas NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4634 1 during that time. So we're looking forward to it.
2 CHAIRMAN MCDADE: Okay. Well, let me put 3 us on mute right now to see, and have a brief 4 discussion with Judge Kennedy and Judge Wardwell. And 5 we will come back on in a few minutes.
6 (Whereupon, the above-entitled matter went 7 of the record at 12:53 p.m. and resumed at 12:56 p.m.)
8 CHAIRMAN MCDADE: Okay. This is Judge 9 McDade back on the line. Before we ring off, do any 10 of the parties have anything further during this 11 hiatus that you wish to bring to our attention?
12 (No audible response) 13 CHAIRMAN MCDADE: Apparently not. We're 14 going to terminate this proceeding. I know we didn't 15 have any input from Riverkeeper here. If there's 16 anything that you wish to add on this, this is your 17 time to do it, or any questions that you have. Does 18 Riverkeeper have anything to add?
19 MS. BRANCATO: Thank you, Your Honor.
20 This is Deborah Brancato for Riverkeeper. Nothing at 21 this time. I know my colleague did join. So, 22 Phillip, did you have anything?
23 (No audible response) 24 CHAIRMAN MCDADE: Okay.
25 MS. BRANCATO: Apparently not.
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4635 1 CHAIRMAN MCDADE: And what about 2 Cortlandt? Do you have anything to say?
3 (No audible response) 4 CHAIRMAN MCDADE: Okay. Apparently not.
5 What I would ask before we ring off, and perhaps not 6 just ask but direct, Entergy indicated that they 7 should be making a submission with regard to the AMP 8 issues by August 7th.
9 What we would direct the staff to do is, 10 once they get that, to review it preliminarily and by 11 September 1st give us an estimate of how many man 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> it's going to take to review that and whether or 13 not the 7 November date for the submission of the 14 supplement and the SER remains realistic, or if not, 15 you know, what would be?
16 Likewise, we would direct that the staff 17 advise us with regard to the review of the May 6th, 18 2013, engineering reports on NY-35 and NY-36 to give 19 a general description of how many man hours have gone 20 into that review to date and how many man hours you 21 anticipate will be necessary or the staff anticipates 22 will be necessary prior to the publishing of the 23 supplement, understanding of course that if additional 24 information comes in that would affect it and that 25 same with regard to aquatic impacts. And if you can NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4636 1 do that within the next two weeks.
2 The Board has nothing else. That being 3 the case, if you all could stay on the line for a few 4 moments after we ring off so that if the court 5 reporter has any questions with regards to names or 6 spellings that that can be answered. And once you've 7 satisfied the court reporter, you can then ring off.
8 The other is we will invite but not 9 require any of the parties to submit in writing to us 10 any suggestions that you have for the Board that you 11 think would help expedite a resolution of this 12 proceeding, anything that hasn't been, you know, 13 discussed so far, for example, the suggestion that we 14 move ahead on the AMP contentions as soon as possible 15 after the supplement is issued, hopefully in November, 16 to be able to hopefully resolve NY-25, NY-26 and NY-17 38.
18 MR. TURK: Your Honor, sir, this is 19 Sherwin Turk. I hate to interrupt. We, the staff, 20 would be very happy to provide you our best estimate 21 as to SSER and FSEIS publication dates.
22 We cannot give you estimates of man hours.
23 We haven't tabulated that. And frankly, I don't think 24 that it's something that we'd be willing to do. We 25 will, however, do the best that we can to help you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4637 1 understand our schedules for your own scheduling 2 purposes, Your Honor.
3 CHAIRMAN MCDADE: When you say that you 4 haven't tabulated it, you know, having some 5 familiarity with the NRC time procedures, it seems 6 like when I work on a particular matter, I'm required 7 to indicate how many hours that I have spent on it.
8 So I assume that the NRC staff, as 9 reporting to the same HR people in order to get paid, 10 has a list of how many hours they spend on a 11 particular matter.
12 And what I take, what you're saying is 13 that you will not provide the information. And based 14 on that, the Board will just have to assume that, you 15 know, there have been very, we cannot assume that all 16 of the time over the past year has been spent 17 productively since you've had the information for a 18 year, more than a year, and are unable to say whether 19 or not you've spent more than an hour on it.
20 So I guess the Board should assume, since 21 you're unwilling to provide the information, that the 22 information would reflect badly on the staff and its 23 moving forward expeditiously and, when you ask for 24 time to do things in the future, to operate on that 25 assumption.
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4638 1 That being said, the status conference is 2 terminated. Thank you, gentlemen, ladies.
3 (Whereupon, the above-entitled matter went 4 off the record at 1:02 p.m.)
5 6
7 8
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